Libbra v. City of Litchfield, Ill.

• Decision Date: 20 July 1995
• Docket Number: No. 93-3137.,93-3137.
• Citation: 893 F. Supp. 1370
• Parties: Joe A. LIBBRA, Vicki L. Libbra, Troy A. Libbra, Todd A. Libbra, Plaintiffs, v. The CITY OF LITCHFIELD, ILLINOIS, Kathryn Dobrinic, Dorothy Mansholt, William Dolahite, Defendants.
• Court: U.S. District Court — Central District of Illinois

893 F. Supp. 1370

Joe A. LIBBRA, Vicki L. Libbra, Troy A. Libbra, Todd A. Libbra, Plaintiffs, v. The CITY OF LITCHFIELD, ILLINOIS, Kathryn Dobrinic, Dorothy Mansholt, William Dolahite, Defendants.

No. 93-3137.

United States District Court, C.D. Illinois, Springfield Division.

July 20, 1995.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Michael W. Ochoa, Springfield, IL, for plaintiffs.

Patrick J. Londrigan, Springfield, IL, John E. Cassidy, Jr., Peoria, IL, for defendants.

OPINION

RICHARD MILLS, District Judge:

The conduct of the Libbra family is revolting and disgraceful!

Summary judgment is entered for all Defendants.

Case closed.

BACKGROUND

At all times relevant to the instant motion, Plaintiffs Joe, Vicki (wife of Joe), Todd, and Troy (sons of Joe and Vicki) Libbra were residents in a home at 822 East Union Street, Litchfield, Montgomery County, Illinois; Defendant Katherine Dobrinic was State's Attorney for Montgomery County, Illinois; Defendant Dorothy Mansholt was Mayor of the City of Litchfield, Illinois; and Defendant William Dolahite was the Litchfield City Chief of Police.

The Libbras moved to the City of Litchfield sometime during the middle of 1989. They rented their home at 822 East Union Street from David and Rebecca Joudah. Sometime during 1990, Joe Libbra began posting signs in his yard critical of public, including the named Defendants, and private individuals. Examples of a few of Joe Libbra's signs include: "Has newspaper owner been accused of fondling boys? Ask him;" "Ms. Mayor and superintendent having an affair;" "Did city attorney get AIDS Debbie's whorehouse;" and "Miss D.A. needs line coke."

On December 12, 1990, at approximately 3:30 a.m., someone set fire to the Libbras' signs (the signs that were set afire are not the signs mentioned in the preceding paragraph). The cause of the fire has never been determined.

On June 4, 1990, as a result of David and Rebecca Joudahs' (the record title holders of the Libbras' home) failure to maintain their monthly mortgage payments, America's Mortgage Company filed a complaint for foreclosure in Montgomery County against the Joudahs and twelve lien holders. The Libbras were not named in the foreclosure action. On September 13, 1990, America's Mortgage Company, through its attorney, Nancy Handegan, requested a hearing on its complaint for foreclosure. The Joudahs failed to appear and were consequently defaulted. Circuit Judge John P. Coady of the Montgomery County Circuit Court entered an order allowing the judgment and sale of the property. On February 14, 1991, Judge Coady subsequently entered an order confirming the sale of the property. Judge Coady's order also authorized the Sheriff of Montgomery County to obtain and turn over possession of the Libbras' residence to America's Mortgage Company on or after March 16, 1991.

On March 26 and in May of 1991, the Libbras were served with Judge Coady's order authorizing the sheriff to turn over possession of their residence to America's Mortgage Company. The Libbras failed to vacate the property. Because the Libbras would not voluntarily vacate the premises, America's Mortgage Company intended to evict them on June 3, 1991. However, prior to that date, Attorney Handegan spoke to Joe Libbra and he agreed to vacate the premises by June 15; the eviction was therefore postponed.

On the morning of June 18, 1991, as a result of the Libbras' failure to vacate the premises, a moving company hired by America's Mortgage Company proceeded to remove the Libbras' possessions from their residence. Immediately thereafter, the Libbras, pro se, petitioned Judge Coady for an emergency hearing. Later that day, an emergency hearing was held before Judge Coady. Judge Coady, apparently concerned that the ejectment of the Libbras was improper because they were never made a party to the foreclosure proceeding against the Joudahs, ordered America's Mortgage Company to cease the eviction process. A hearing on the Libbras' right to possess the property was set for June 27, 1991.

On June 27, Judge Coady determined that the Libbras had no right to possess the property. Consequently, he entered an order directing the Libbras to vacate the premises by July 18, 1991. The Libbras did not appeal that order.

Sometime during late 1990 or early 1991, police officers from the City of Litchfield were directed to take pictures of the Libbras' signs. This generally occurred on a daily basis, for fifteen to thirty minutes at a time, until the Libbras were evicted from their residence.

On June 20, 21, 22, and 23 of 1991, the City of Litchfield issued tickets to Joe Libbra, charging him with a violation of the City's zoning ordinance. The Libbras continued to post signs at their residence on Union street until they were evicted on July 18, 1991. Following the eviction, from July to December 1991, the Libbras resided with Joe Libbra's mother. No signs were posted at the mother's residence. In December 1991, the Libbras moved from their mother's residence to another home in Litchfield and immediately began posting signs again. The Libbras posted signs until Joe Libbra agreed to stop as part of his probation agreement for a felony conviction for intimidation in 1993. The four zoning ordinance tickets issued to Joe Libbra in 1991 were never prosecuted and were dismissed for want of prosecution on March 10, 1994.

LEGAL STANDARD — SUMMARY JUDGMENT

Under Fed.R.Civ.P. 56(c), summary judgment shall be granted if the record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Black v. Henry Pratt Co., 778 F.2d 1278, 1281 (7th Cir.1985). The moving party has the burden of providing proper documentary evidence to show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material fact exists when "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Unquestionably, in determining whether a genuine issue of material fact exists, the evidence is to be taken in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Once the moving party has met its burden, the opposing party must come forward with specific evidence, not mere allegations or denials of the pleadings, which demonstrates that there is a genuine issue for trial. Howland v. Kilquist, 833 F.2d 639 (7th Cir.1987). Furthermore, "where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

DISCUSSION/ANALYSIS

The Libbras initiate this action under 42 U.S.C. § 1983 alleging violations of their First Amendment rights.¹ In order to establish a successful § 1983 claim, the Libbras must show (1) that the conduct complained of was committed by a person acting under color of state law and (2) that this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. New Burnham Prairie Homes v. Village of Burnham, 910 F.2d 1474, 1479 (7th Cir.1990). Since Defendants do not dispute that they acted under the color of state law, the issue under § 1983 is whether the Libbras were deprived of rights secured by the Constitution.

The Libbras characterize their claim against Defendants as a conspiracy to deprive them of their First Amendment guarantee of freedom of speech. However, based on the allegations of the complaint and the pleadings in this matter, it appears more accurate to characterize this action as a conspiracy to retaliate against the Libbras for exercising their First Amendment rights.²

I

Section 1983 does not punish conspiracy, Goldschmidt v. Patchett, 686 F.2d 582, 585 (7th Cir.1982), rather, as a practical matter, proof of a civil conspiracy simply broadens the scope of liability under § 1983 to include individuals who were part of a conspiracy but did not act directly to deprive a plaintiff of his or her constitutional rights. Miller v. Village of Dolton, No. 94-C-765, 1995 WL 137051, *5, LEXIS 3892, *16 (N.D.Ill. Mar. 27, 1995). In order to establish a prima facie case of a civil conspiracy, "a plaintiff must show (1) an express or implied agreement among defendants to deprive plaintiff of his or her constitutional rights and (2) actual deprivations of those rights in the form of overt acts in furtherance of the agreement." Scherer v. Balkema, 840 F.2d 437, 442 (7th Cir.1988). Because we conclude that the Libbras were not deprived of any constitutional rights by the alleged conspirators (element # 2), we need not decide whether they have provided sufficient evidence of an express or implied agreement amongst those conspirators.

II

As previously indicated, we construe the pleadings in this matter as alleging that Defendants conspired to retaliate against the Libbra family for exercising their First Amendment right to freedom of speech. Specifically, as a result of posting signs in their yard critical of public and private individuals, the Libbras claim that they were retaliated against and harassed by Defendants.³ Assuming the content of the signs qualifies as protected speech and the Libbras were in fact retaliated against, such a claim is undoubtedly actionable under § 1983. Smart v. Board of Trustees of Univ. of Illinois, 34 F.3d 432, 434 (7th Cir.1994) ("Any form of official retaliation for exercising one's freedom of speech is actionable as an infringement of that freedom."); Rakovich v. Wade, 850 F.2d 1180, 1211 (7th Cir.1988) ("An act in retaliation for the exercise of a constitutionally protected, for...