Lugo v. Vill. of Washburn

• Decision Date: 17 February 2023
• Docket Number: 22-cv-1387-JES-JEH
• Parties: JOHN LUGO, Plaintiff, v. VILLAGE OF WASHBURN, ILLINOIS, et.al., Defendants.
• Court: U.S. District Court — Central District of Illinois

JOHN LUGO, Plaintiff,
v.
VILLAGE OF WASHBURN, ILLINOIS, et.al., Defendants.

No. 22-cv-1387-JES-JEH

United States District Court, C.D. Illinois

February 17, 2023

ORDER AND OPINION

JAMES E. SHADID UNITED STATES DISTRICT JUDGE

This matter is now before the Court on Defendants' Motion to Dismiss Plaintiff's First Amended Complaint (Doc. 11), Memorandum in support, and Plaintiff's Response (Doc. 13). For the reasons set forth below, Defendants' Motion to Dismiss is GRANTED.

FACTS

Plaintiff, proceeding pro se, brings an action under 42 U.S.C. § 1983, asserting a constitutional violation under Fourteenth Amendment procedural due process and Monell v. Department of Social Services, 436 U.S. 658 (1978). Plaintiff has named the Village of Washburn (“Village”) and Ginger Humphrey (“Humphrey”), a Village Trustee. Plaintiff has also named “John Does 1-10” in the caption but has not pled any claims against them. See Jones v. Butler, No.14-00846, 2014 WL 3734482 *2 (S.D. Ill. July 29, 2014) (citing Collins v. Kibort, 143 F.3d 331, 334 (7th Cir.1998)). “[T]o be liable under [Section] 1983, an individual defendant must have caused or participated in a constitutional deprivation. However, merely naming a defendant in the caption is insufficient to state a claim.” Id. at *2.

The following facts are taken from Plaintiff's Complaint, which the Court accepts as true for the purposes of a motion to dismiss. Bible v. United Student Aid Funds, Inc., 799 F.3d 633, 639 (7th Cir. 2015). On or about August 29, 20022, the Village of Washburn (“Village”) issued

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Plaintiff a complaint, purportedly based on an Ordinance violation, for having a dumpster on his property which “block[ed] view.” (Doc. 1 ¶ 2). On September 4, 2022, Woodford County Sheriff's Deputies served Plaintiff with the complaint. Plaintiff has provided a copy of the form complaint which contains a series of check boxes which may be used to identify various infractions. None of the boxes are checked but under “Other” there is the handwritten note “Dumpster blocking view.” (Doc. 1 at 11).

The complaint notes that this was a “First Offense” subject to a $25.00 fine. Plaintiff was advised that if he paid the fine, no court appearance would be required. It also stated:

IF YOU FAIL TO PAY BY THE DUE DATE, YOU MUST APPEAR IN COURT AT THE WOODFORD COUNTY COURTHOUSE, 115 N. MAIN ST EUREKA, IL, ON A DATE AND TIME TO BE PROVIDED.

The line “Officer's Signature” is signed by Defendant Humphrey. The back side of the complaint advised Plaintiff that he could demand a jury trial when he entered his appearance. He was also notified that a default judgment could be entered, and an arrest warrant issued if he failed to appear at any hearing. (Doc. 1 at 12).

The minutes of a subsequent October 10, 2022, Village Board meeting document that the ordinance in question was clarified as Ordinance No. 152-032 as “the dumpster laid on gravel and exceeded the 4-foot limit in violation of the ordinance.” (Doc. 11 at 2). The minutes also reflect that Plaintiff was sent a letter by certified mail, informing him that he had five days to move the dumpster. Plaintiff claims that he did not receive the letter and it is undisputed that he never signed for it.

Plaintiff has pled that the ordinance complaint violated his Fourteenth Amendment procedural due process rights as it was deficient and did not provide adequate notice.^[1] One of the

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alleged deficiencies was that Defendant Humphrey, acting as a Village Trustee, did not have the authority to sign the complaint. Plaintiff cites IL. R. S.Ct. 572(a) Form of Charging Document; and 735 ILCS 5/1-109 Verification by certification, which provide that only an attorney, peace officer, or code enforcement officer is authorized to sign charging documents. Plaintiff further claims that the complaint was deficient for failing to provide an appearance date as required under Rule 572(a)(4)^[2] and failing to identify the ordinance which had been violated as required under Rule 572(a)(3).^[3] Plaintiff asserts, in fact, that there is no statute or ordinance which specially prohibits a dumpster blocking the view. Plaintiff complains that he has never received notice of a hearing date and the threat looms over him.

Plaintiff also brings a Monell claim, pleading that he sustained a constitutional injury under a policy which, in part, allowed Defendant Humphrey to sign verified complaints against Village citizens. In support of the allegedly unconstitutional policy, Plaintiff asserts, without pleading specific facts, that Defendant Humphrey issued complaints on “fabricated and/or misleading statements and/or engaging in similar acts of misconduct on a repeated basis and failure to institute and enforce a consistent disciplinary policy and/or early warning system.” (Doc. 1 ¶ 29). He also asserts, again without pleading specific facts, that Defendants had a “custom, policy or repeated practice of condoning and tacitly encouraging the abuse of authority in disregard for the constitutional rights of citizens, such as Plaintiff.” (Doc. 1 ¶ 27). Plaintiff

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does not cite instances of alleged constitutional injury to others, only premising this statement upon information and belief. Id. at ¶ 28.

Plaintiff identifies the constitutional injury which supports his due process and Monell claims as the violation of his “right to manage, maintain and improve his property by keeping a dumpster for collection of debris during landscaping improvements.” It does not appear, and Plaintiff does not claim, that he was prohibited having a dumpster on his property. Rather, the controversy appears to have arisen from the dumpster's location on the property; whether because it blocked the view, or as later asserted, laid on gravel and exceeded a 4-foot limit. Plaintiff claims mental and emotional injury due to the “forever looming and erroneous prosecution with no means for Plaintiff to be heard in court and/or defend himself.” (Doc. 1 at 6). Although Plaintiff is proceeding pro se, he indicates that he has sought the services of counsel and is entitled to an award of attorneys' fees and costs.

Plaintiff has requested declaratory and injunctive relief, as well as compensatory and punitive damages. Plaintiff's request for punitive damages was directed against both the Village and Defendant Humphrey in her individual capacity. Plaintiff concedes in his response that he may not recover punitive damages against the Village and asserts punitive damages only as to Defendant Humphrey.

Defendants deny that Plaintiff has pled a cognizable constitutional interest for purposes of a due process claim, and even if he had, the notice he received was adequate. It is uncontroverted that the Village never filed the complaint in court. In fact, when Plaintiff attempted to file a response on September 5, 2022, it was not accepted as there was no complaint on file. Court proceedings were never commenced, and the Village took no action other than notifying Plaintiff of the purported ordinance violation and sending a certified letter which he

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never received. Defendants assert that the mere issuance of the notice is not sufficient to cause a § 1983 constitutional injury under a Fourteenth Amendment or Monell analysis.

In addition to the lack of constitutional injury, Defendants deny that the complaint provided inadequate notice. While the complaint did not identify a time and place for hearing, it indicated that this would be scheduled in the event that the $25 fine was not paid by a certain date. It appears that this date was never scheduled as the Village abandoned its plan to proceed on the ordinance violation. Defendants assert that, even though the complaint did not identify the ordinance violation in question, this was clarified at the public Village Board meeting of October 10, 2022, as a violation of Ordinance No. 152-032. Defendants do not address, and do not dispute, Plaintiff's claim that Defendant Humphrey was...