Tarkowski v. Robert Bartlett Realty Co.

• Decision Date: 02 January 1980
• Docket Number: No. 76-1269,76-1269
• Citation: 644 F.2d 1204
• Parties: John TARKOWSKI, Plaintiff-Appellant, v. ROBERT BARTLETT REALTY COMPANY et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1204

644 F.2d 1204

John TARKOWSKI, Plaintiff-Appellant, v. ROBERT BARTLETT REALTY COMPANY et al., Defendants-Appellees.

No. 76-1269.

United States Court of Appeals Seventh Circuit.

Submitted Dec. 27, 1979.

Decided Jan. 2, 1980 ^*.

John Tarkowski, Wauconda, Ill., for plaintiff-appellant.

Richard E. Mueller, Frank M. Covey, Jr., William Van Hagey, Chicago, Ill., Dennis P. Ryan, State's Atty., Waukegan, Ill., for defendants-appellees.

Before SWYGERT, CUMMINGS and PELL, Circuit Judges.

CUMMINGS, Circuit Judge.

This is an appeal from a final judgment under Rule 54(b), Federal Rules of Civil Procedure, dismissing all but two of the one hundred and thirty-seven defendants named in plaintiff's pro se Second Amended Complaint. ¹ We will not try to improve on the district court's summary of the numerous injuries attributed by plaintiff to efforts of his neighbors to limit his use of his land. Most of the defendants were dismissed for lack of federal jurisdiction. The remaining claim under 42 U.S.C. § 1983, against the Lake County State's Attorney and the Assistant State's Attorney assigned to the Building and Zoning Department, for equitable relief from discriminatory enforcement of zoning ordinances, is still pending in the district court.

With regard to the majority of plaintiff's claims, we approve the thorough Memorandum Opinion of the district court and adopt its reasoning. A question remains, however, concerning the propriety of dismissing the private defendants from plaintiff's claim under § 1983. Each allegation in the complaint of discriminatory enforcement of zoning ordinances by State's Attorney Hoogasian and Assistant State's Attorney Sieman is coupled with an allegation of conspiracy with some or all of the private defendants. ² The question is whether the allegations of conspiracy in this pro se complaint are sufficient to bar dismissal of the private defendants.

Some confusion is generated by the fact that two separate conspiracies are alleged. The private defendants are alleged to have conspired to selectively enforce private deed restrictions against Tarkowski. In the course of this alleged conspiracy, an injunction enforcing the restrictions was obtained in 1966. In 1974, the Property Owner's Association substituted itself in the injunctive action and obtained a contempt citation against Tarkowski. Tarkowski's challenge to the substitution was denied on appeal. (Bartlett v. Tarkowski, 38 Ill.App.3d 134, 347 N.E.2d 415 (1976)). These were all private actions, and the elements of the complaint based upon them were properly dismissed by the district court.

Tarkowski also alleges, however, that in further pursuit of their objectives the private defendants complained to the Building and Zoning Department, thereby initiating that department's allegedly discriminatory enforcement efforts. The district court determined that a claim of discriminatory enforcement had been stated against the State's Attorney. As the district court stated, a claim under § 1983 for discriminatory enforcement of zoning regulations must involve an element of "intentional or purposeful discrimination." Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 401, 88 L.Ed. 497; Tollet v. Laman, 497 F.2d 1231 (8th Cir. 1974). There must be allegations of "unfair and discriminatory conduct purposefully directed toward plaintiffs." Ellentuck v. Klein, 570 F.2d 414 (2nd Cir. 1978); Cook v. City of Price, 566 F.2d 699 (10th Cir. 1977). Cf. United States v. Falk, 472 F.2d 1101, 1108 (7th Cir. 1972). Although a private person is not engaged in state action when he merely lodges a complaint with the police, the prosecutor, or when he invokes the exercise of judicial authority, see Grow v. Fisher, 523 F.2d 875 (7th Cir. 1975), Tarkowski's complaint suggests that whatever purpose the State's Attorney may have had in discriminatorily enforcing the zoning ordinances would have been shared with, and prompted and encouraged by, the private defendants. ³

Private parties may be liable under 42 U.S.C. § 1983 where they have been jointly engaged with public officers in the denial of civil rights. Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142. We have recently stated, however, that

It is not sufficient to allege that the (private and state) defendants merely acted in concert or with a common goal. There must be allegations that the defendants had directed themselves toward an unconstitutional action by virtue of a mutual understanding. Even were such allegations to be made, they must further be supported by some factual allegations suggesting such a "meeting of the minds."

Sparkman v. McFarlin, 601 F.2d 261, 268 (7th Cir. 1979) (en banc) (concurring opinion of Sprecher, J.). ⁴

The allegations of conspiracy in Plaintiff's Second Amended Complaint fail to satisfy this test. He alleges that the State's Attorney acted "through a conspiracy" with the private defendants; that the State's Attorney and his assistant sought to conceal the conspiracy of the private parties; and that he has been deprived of his rights by "all the defendants acting jointly and severally, separately and conspiratorily and conspiring with each other ...." These are all essentially conclusory allegations, unsupported by specific facts. ⁵

Pro se complaints, however, are to be liberally construed. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251. ⁶ They can only be dismissed for failure to state a claim if it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Haines v. Kerner, 404 U.S. 519, 521, 92 S.Ct. 594, 596, 30 L.Ed.2d 652. ⁷

This circuit has in the past upheld the dismissal of conclusory pro se conspiracy allegations. ⁸ More recently, however, we have emphasized the liberal standard of Haines v. Kerner. Hayes v. Walker, 555 F.2d 625, 628 (7th Cir. 1977); French v. Heyne, 547 F.2d 994, 996 (7th Cir. 1976). ⁸

In balancing the strict standard for pleading conspiracy enunciated in Sparkman against the liberal approach to pro se pleadings required by Haines v. Kerner, we note that even under Haines v. Kerner, pro se pleadings have been required to meet some minimum standard of particularity. ⁹ In such circumstances, the pro se litigant has often been allowed to replead. Heidelberg v. Hammer, 577 F.2d 429 (7th Cir. 1978); Nickens v. White, 536 F.2d 802 (8th Cir. 1976); Anderson v. Sixth Judicial District Court, 521 F.2d 421 (8th Cir. 1975). We have said that "dismissal should be sparingly used whenever it appears that a basis for federal jurisdiction in fact exists or may exist and can be stated by plaintiff." Littleton v. Berbling, 468 F.2d 389 (7th Cir. 1972), rev'd on other grounds sub nom. O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674. On that occasion we added, however, that

This, of course, does not provide a carte blanche for unlimited successive complaint amendments, and the ultimate duty of pleading his case rests upon the party and not upon the district court to divine what is not reasonably there.

468 F.2d at 394.

In this case Tarkowski has had three opportunities to state against the private defendants a claim cognizable in federal court. Further amendment of the complaint is not likely to serve any useful purpose, and its adequacy to withstand a motion to dismiss should be determined as it stands. A motion to dismiss should not be granted, however, "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Haines v. Kerner, supra, 404 U.S. at 521, 92 S.Ct. at 596; Conley v. Gibson, 355 U.S. 41, 45-6, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80. We also bear in mind that

In many cases of conspiracy essential information can only be produced through discovery, and the parties should not be thrown out of court before being given an opportunity through that process to ascertain whether the linkage they think may exist actually does.

Lessman v. McCormick, 591 F.2d 605, 611 (10th Cir. 1979). But see Cohen v. Illinois Institute of Technology, 524 F.2d 818, 827 (7th Cir. 1975), cert. denied, 425 U.S. 943, 96 S.Ct. 1683, 48 L.Ed.2d 187. ¹⁰

Although plaintiff is pleading pro se, we believe that even a pro se litigant is required to allege something in the way of facts before his allegations of conspiracy may be deemed to state a claim. Obviously, a pro se litigant should be given every opportunity to state a valid claim. The district court has in this regard been most patient and forebearing. Tarkowski, however, has filed two amended complaints, without alleging any factual basis suggesting the meeting of minds necessary to establish his claim. Mere conjecture that there has been a conspiracy is not enough to state a claim. A private person does not conspire with a state official merely by invoking an exercise of the state official's authority. Cf. Sparkman, 601 F.2d at 260 (Tone, J., concurring) and Grow v. Fisher, supra. Plaintiff has given us no reason to believe that he can prove any facts in support of his claim and dismissal was therefore appropriate.

Accordingly, the judgment of the district court is affirmed in all particulars.

* This appeal was originally decided by unreported order on January 2, 1980. See Circuit Rule 35. The Court has subsequently decided to issue the decision as an opinion.

1 After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court in this case. The notice provided that any party might file a "Statement as to Need for Oral Argument." See Rule 34(a), Fed.R.App.P. (effective Aug. 1, 1979); Circuit Rule 14(f). Appellant has filed such a statement and requested oral argument. Upon consideration of that statement, the briefs, and the record, the request for oral argument is denied and the appeal is submitted on the briefs...