Sterling v. Village of Maywood, 77-1632

Decision Date07 July 1978
Docket NumberNo. 77-1632,77-1632
Citation579 F.2d 1350
PartiesGeraldine STERLING et al., Plaintiffs-Appellants, v. VILLAGE OF MAYWOOD et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Joseph Burden, Maywood, Ill., for plaintiffs-appellants.

Gordon V. Levine, Chicago, Ill., for defendants-appellees.

Before SPRECHER and WOOD, Circuit Judges, and REYNOLDS, Chief District Judge. *

SPRECHER, Circuit Judge.

This appeal raises the issue of what liability, if any, a municipality or its employees incur under 42 U.S.C. § 1983 or the Fourteenth Amendment when employees of the municipality's water department terminate a tenant's water service at the request of the landlord and subsequently decline to reinstate service after the tenant promises to pay for future service and offers a deposit to guarantee such payment.


Plaintiff is a mother of four minor children, 1 and resides in the Village of Maywood, Illinois (Village). Defendants are the Village, itself; Mark Kitch, its Manager; Edward Carter, and administrative assistant in charge of water service; and Leo Graham, an employee of the Village's Water Department.

Plaintiff's complaint 2 alleged in Count I 3 that she entered into an oral lease with Mr and Mrs. Melvin Ward to rent a single family dwelling located within the Village. Pursuant to her understanding of that lease, she moved into the building with her children on July 22, 1976. The landlords, on the next day, attempted to evict her, but were unsuccessful.

On August 5, 1976, the landlords called the Village's Water Department and requested that water service be terminated at the building where plaintiff was residing. The next day, August 6, a meter reader from the Village went to plaintiff's residence and suggested that she should go to the Village Hall and place the water service in her name. The following day plaintiff received a water bill at her residence addressed to "occupant" stating that $439.06 was due on August 25, 1976, for past water service. The bill also contained a note suggesting that the occupant place her name on the Village's records to avoid termination of service.

On August 9, the Water Department, without notice to plaintiff, terminated her water service. Plaintiff went to the Village Hall to find out why her service had been discontinued. In response to plaintiff's inquiry, defendants Carter and Graham explained that it was Village policy to terminate service upon the request of the person in whose name the bill is being paid. Plaintiff sought at that time to have her water service reinstated and to that effect promised to pay for future water service and offered a deposit to guarantee payment. Defendants denied plaintiff's request for reinstatement for three reasons: because the landlords had not paid their bill, because plaintiff lacked a written lease and because the landlords had requested the termination. Plaintiff's water service was not reinstated for four days, and then it was provided only because the landlords agreed to pay $100 of the $439.06 they owed the Village Water Department.

Based on these facts, plaintiff sought a declaratory judgment and damages against the private defendants and the Village based on 42 U.S.C. § 1983 4 and the due process clause of the Fourteenth Amendment. 5 The district court reasoned that "(p)laintiffs have attempted to establish a federal claim out of what is essentially a landlord and tenant problem" and held, Sua sponte, that the allegations "do not properly state a claim upon which relief can be granted under 42 U.S.C. § 1983, § 1985(3) or the Fourteenth Amendment . . . ." Plaintiff appeals from the district court's judgment.


Plaintiff's first argument is that the defendants violated her due process rights when they terminated her water service without prior notice and an opportunity for some type of a "hearing." 6 Plaintiff reasons that, although a municipality is under no obligation to provide water service, once its chooses to do so "a User has a legitimate claim of entitlement to continue service absent sufficient cause for termination . . . ." Koger v. Guarino, 412 F.Supp. 1375, 1386 (E.D.Pa.1976), Aff'd without opinion, 549 F.2d 795 (3d Cir. 1977) (emphasis added). 7

In evaluating the merits of plaintiff's contention, our concern must be with whether some basis exists for concluding that plaintiff's role as a tenant-water user creates a constitutionally protected property interest in continued water service. To resolve that issue, we must rely on the Supreme Court's analysis of "property" in Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972), where the Court reasoned:

To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.

In applying that standard the Court instructed that property interests are not created by the Constitution, but rather they are "created" and "defined by existing rules or understandings that stem from an independent source such as state law." Id. See also Arnett v. Kennedy, 416 U.S. 134, 151-52, 94 S.Ct. 1633, 1643, 40 L.Ed.2d 15 (1974) (plurality opinion); Goss v. Lopez, 419 U.S. 565, 574-75, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). The Court suggested two sources that create property interests: state statutes 8 and contracts express or implied between individuals and some agency of the state. 9 408 U.S. at 577-78, 92 S.Ct. 2694.

In our view, plaintiff has no contractual or statutory basis for any legitimate claim of entitlement to continued water service. First, plaintiff had no contractual relationship with the Village Water Department. The landlords of her building were the applicants for water service and they were the persons who sought termination of that service. Thus, the express contractual interest in water service was theirs exclusively. In addition, plaintiff makes no claim that a de facto understanding existed between her and the Village. Thus, there is no implied property right. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).

Second, plaintiff can point to no provision in the state's laws or in the municipal ordinances that purports to provide her with a legitimate claim of entitlement to water service. In fact, the Village's municipal ordinance precludes such a claim. In its preamble, the ordinance does not purport to provide service to all people; instead, it recognizes that "it is necessary that the Village charge the inhabitants thereof for the use thereof and the services supplied." Ord.No. 68 § 32. To effectuate this limited provision of service, the ordinance specifies that "(a)ny householder, property owner or other person desiring water or sewer service . . . shall make application therefor . . . ." Id. at § 32.1. Thus, the applicable state law only provides a claim of entitlement to those who have made an application for water service. Since plaintiff has neither a contractual nor a statutory basis to support her claim, we conclude that plaintiff was not deprived of a due process right by defendants' termination of her water service. 10

Plaintiff correctly points out that other courts have held in other contexts that a water user has a constitutionally protected interest in continued service. However, no court of appeals has discussed this entitlement issue. In Davis v. Weir, 497 F.2d 139 (5th Cir. 1974), the municipality conceded on appeal that it had a duty to provide the actual user with notice prior to termination. 11 Thus, the Fifth Circuit did not have to consider whether a property interest existed. 497 F.2d at 143. In Koger v. Guarino, supra, the Third Circuit affirmed the district court's determination that there was an entitlement, but did so without an opinion.

Three district courts have held that a water user has a legitimate entitlement to continued water service when that service is terminated due to arrearages in the landlord's bill. See Davis v. Weir, 328 F.Supp. 317 (N.D.Ga.1971); Koger v. Guarino, 412 F.Supp. 1375 (E.D.Pa.1976) and Lamb v. Hamblin, 57 F.R.D. 58 (D.Minn.1972). With all due respect to those courts, we find their reasoning unpersuasive as applied in this case. In Koger, the court merely stated that an interest existed without explaining the basis for entitlement. 412 F.Supp. at 1386. In both of the other decisions, the courts attached dispositive significance to the importance of water as "an absolute necessity of life." 328 F.Supp. at 321; 57 F.R.D. at 61. That analysis, however, is irrelevant to the question of whether there is an entitlement. As the Supreme Court has made clear, it is the nature, and not the weight or importance, of the plaintiff's interest that determines whether a property interest exists. 12 Board of Regents v. Roth, 408 U.S. 564, 570-71, 92 S.Ct. 270, 33 L.Ed.2d 548 (1972); Goss v. Lopez, 419 U.S. 565, 575-76, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). Nothing in any of the decisions cited by plaintiff or in anything plaintiff has argued persuades us that she, as merely a water user, had a legitimate claim of entitlement to continued water service once the landlord requested termination of that service.


Plaintiff's second argument is that the defendants violated her constitutional rights when they refused to reinstate her water service. Three reasons are listed in plaintiff's complaint for the defendants' refusal to reinstate her water service: (1) the landlord failed to pay his water bill for service at her residence; (2) the landlord requested the termination; and (3) the plaintiff failed to produce a written lease. We believe that plaintiff's allegations are sufficient to state a violation of both her equal protection and her due process rights, and we, therefore, reverse the judgment of the district court on this issue.


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