Tavarez v. O'Malley, No. 86-2501

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore BAUER, Chief Judge, and WOOD and POSNER; POSNER
Citation826 F.2d 671
PartiesNydia TAVAREZ and Manny Tavarez, d/b/a La Nydia Grocery, Plaintiffs-Appellants, v. Michael O'MALLEY, et al., Defendants-Appellees.
Docket NumberNo. 86-2501
Decision Date24 September 1987

Page 671

826 F.2d 671
56 USLW 2119
Nydia TAVAREZ and Manny Tavarez, d/b/a La Nydia Grocery,
Plaintiffs-Appellants,
v.
Michael O'MALLEY, et al., Defendants-Appellees.
No. 86-2501.
United States Court of Appeals,
Seventh Circuit.
Argued April 3, 1987.
Decided Aug. 13, 1987.
Rehearing and Rehearing En Banc Denied Sept. 24, 1987.

Page 673

Thomas Grippando, Chicago, Ill., for plaintiffs-appellants.

Karen J. Dimond, Asst. State's Atty., Chicago, Ill., Michael W. Rathsach, Rathsach, O'Brien, Redding & Hyde, Chicago, Ill., for defendants-appellees.

Before BAUER, Chief Judge, and WOOD and POSNER, Circuit Judges.

POSNER, Circuit Judge.

The proprietors of a grocery store in Schiller Park, a town in Cook County, Illinois, brought a damage suit under section 1 of the Civil Rights Act of 1871, now 42 U.S.C. Sec. 1983, claiming that the defendants--Cook County, and various employees of the county and of Schiller Park--had deprived them of property without due process of law. The district judge granted summary judgment for the defendants, 635 F.Supp. 1274 (N.D.Ill.1986), so we must construe the facts as favorably to the plaintiffs as the record will permit.

On November 21, 1983, a gas heater in the Tavarezes' grocery store malfunctioned and gave off carbon monoxide that injured several people in the store, including Mrs. Tavarez. Defendant O'Malley, an inspector employed by the Cook County Department of Environmental Control, arrived on the scene shortly, as did the Schiller Park defendants--three police officers and the town's health officer, McCampbell. After shutting off the malfunctioning heater, one or more of the defendants (it is unclear, and probably irrelevant, which ones) placed Cook County coroner seals on the doors of the store, although no one had died. Each seal states, "Any person breaking or mutilating this seal or entering these premises will be prosecuted to the full extent of the law." It took more than four weeks for the Tavarezes to regain access to the building. During that time water pipes burst because of freezing temperatures, causing damage to fixtures and equipment; and perishable inventory perished--either spoiled, or damaged by water, or both. The long shutdown also impaired the store's goodwill. The Tavarezes lease rather than own the grocery store, and the nature of their interest in the contents of the store is undisclosed; but the defendants do not dispute that the injuries of which the Tavarezes complain are the result of a deprivation of property within the meaning of the Fourteenth Amendment.

On the day the store was sealed, Mr. Tavarez asked McCampbell how he could get into the store and McCampbell replied that Tavarez would have to speak to the Director of the Cook County Department of Environmental Control, Mr. Mole, another defendant. The Tavarezes went to see Mol

Page 674

Mole the next day. O'Malley was also present at the meeting. After emphasizing to the Tavarezes that they would be committing a crime if they entered the store while the seals were on it, Mole told them they could enter once O'Malley finished his investigation. O'Malley chimed in that he wasn't the fastest investigator in the world--a statement not motivated by false modesty. Mole told the Tavarezes that he would get back in touch with them in a week.

The week came and went, without word from Mole. The Tavarezes tried to call him, but he neither took nor returned their calls. Another week went by. Finally Mrs. Tavarez went to Mole's office, where he told her that she and her husband could enter the store when they got a statement from the landlord promising that he would fix the heater. Mole even called the landlord and asked him to write the letter, which the landlord agreed to do. Mrs. Tavarez fetched the letter from him and took it to Mole's office--all on the same day. The next day Mole told her that the letter was no good because it didn't say when the repairs would be completed. Mrs. Tavarez went back to the landlord and asked him to specify a completion date, but he refused.

Three weeks had elapsed since the sealing of the store. Mr. Tavarez went to Mole and asked him again what the Tavarezes had to do to be allowed to reenter it. Mole said the decision was not his, but Schiller Park's. (The landlord had also gone to Mole to find out how he could get into the store to repair the heater, but Mole had said, "At this point I really don't know what to tell you. It is still under investigation. I cannot authorize you to get in there.") A week later the Schiller Park police gave Mr. Tavarez the keys to his store back.

The district judge granted summary judgment for Cook County because there is no county policy of sealing dangerous premises without notice and an opportunity for a hearing in advance, neither of which was provided here. The only Cook County ordinance we have found that governs the sealing of dangerous premises requires these procedural safeguards, see Cook Cty.Ill.Ordinances, ch. 16, Sec. 16-5.5-3(b), and neither Mole nor any of the other defendants was authorized to omit them. Schiller Park has no ordinance relating to the sealing of dangerous premises, so while the Schiller Park employees were not acting with any explicit legal authority, neither were they acting in violation of an explicit rule, as the Cook County employees may have been ("may have been," not "were," because the ordinance we cited may be limited to hazards resulting from air pollution). The district judge dismissed the individual defendants precisely because their acts were unauthorized, which in the judge's view made notice and a predeprivation hearing infeasible.

The Tavarezes were deprived of the use of their property for a month, and all agree that the deprivation, although not permanent (except with regard to the spoilage and the water damage), was sufficient to trigger the Fourteenth Amendment's requirement of due process of law. See Sutton v. City of Milwaukee, 672 F.2d 644, 645 (7th Cir.1982). However, the malfunctioning of the heater was an emergency, and nothing in the Constitution forbade the defendants to evacuate the store, and to prevent anyone from entering it until the source of the potentially lethal fumes was found and corrected, without going through the formality of notice and a hearing, see, e.g., Board of Regents v. Roth, 408 U.S. 564, 570 n. 7, 92 S.Ct. 2701, 2705 n. 7, 33 L.Ed.2d 548 (1972)--an obviously ridiculous suggestion which the Tavarezes do not make. The constitutional problem arises from the inexplicable bureaucratic delays after the heater was turned off. It may well have been prudent to keep customers out of the store until the heater was fixed, but to keep out the Tavarezes and the landlord--the people with the strongest interest in getting the heater fixed as soon as possible--was not only unreasonable but stupid and even dangerous. Even more clearly, there was no reason not to give the Tavarezes a prompt opportunity to show that they were entitled to reenter the premises because the emergency

Page 675

had passed and no state or local law authorized the defendants to keep them out once it had passed. The argument that the Schiller Park defendants were authorized to seal the premises is thin; they acknowledge that Schiller Park has no ordinance authorizing sealing and no seals and that the seals affixed were Cook County seals. Anyway the issue is not the initial sealing of the premises but the refusal to let the...

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26 practice notes
  • Soldal v. County of Cook, No. 89-3631
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 27 Agosto 1991
    ...Fuentes v. Shevin, 407 U.S. 67, 96 n. 32, 92 S.Ct. 1983, 2002 n. 32, 32 L.Ed.2d 556 (1972). A glancing reference in Tavarez v. O'Malley, 826 F.2d 671, 678 (7th Cir.1987), expressed the skepticism of three members of this court. The Third Circuit gave a peremptory "no" in Lebowitz ......
  • Easter House v. Felder, No. 86-2164
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 14 Agosto 1990
    ...v. Board of Educ., 857 F.2d 404 (7th Cir.1988); Wilson v. Civil Town of Clayton, 839 F.2d 375 (7th Cir.1988); Tavarez v. O'Malley, 826 F.2d 671 (7th Cir.1987). Indeed, the Court in Zinermon, --- U.S. at ----, 110 S.Ct. at 978 and n. 2, takes cognizance of the split which has developed in th......
  • Easter House v. Felder, No. 86-2164
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 8 Julio 1988
    ...potential due process violation only if the deprivation resulted from "random and unauthorized acts." 12 In Tavarez v. O'Malley, 826 F.2d 671 (7th Cir.1987), this court recognized that a broad reading of Parratt would eliminate section 1983 as a remedy for virtually any property d......
  • Bradley v. Vill. of Univ. Park, No. 16-3456
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 16 Julio 2019
    ...407 n.3 (7th Cir. 1988) (holding that Parratt did not apply to municipal liability analysis under Monell ), quoting Tavarez v. O’Malley , 826 F.2d 671, 677 (7th Cir. 1987), and Wilson v. Town of Clayton , 839 F.2d 375, 380 (7th Cir. 1988). We recognized in Easter House that the Supreme Cour......
  • Request a trial to view additional results
25 cases
  • Soldal v. County of Cook, No. 89-3631
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 27 Agosto 1991
    ...Fuentes v. Shevin, 407 U.S. 67, 96 n. 32, 92 S.Ct. 1983, 2002 n. 32, 32 L.Ed.2d 556 (1972). A glancing reference in Tavarez v. O'Malley, 826 F.2d 671, 678 (7th Cir.1987), expressed the skepticism of three members of this court. The Third Circuit gave a peremptory "no" in Lebowitz ......
  • Easter House v. Felder, No. 86-2164
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 14 Agosto 1990
    ...v. Board of Educ., 857 F.2d 404 (7th Cir.1988); Wilson v. Civil Town of Clayton, 839 F.2d 375 (7th Cir.1988); Tavarez v. O'Malley, 826 F.2d 671 (7th Cir.1987). Indeed, the Court in Zinermon, --- U.S. at ----, 110 S.Ct. at 978 and n. 2, takes cognizance of the split which has developed in th......
  • Easter House v. Felder, No. 86-2164
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 8 Julio 1988
    ...potential due process violation only if the deprivation resulted from "random and unauthorized acts." 12 In Tavarez v. O'Malley, 826 F.2d 671 (7th Cir.1987), this court recognized that a broad reading of Parratt would eliminate section 1983 as a remedy for virtually any property d......
  • Bradley v. Vill. of Univ. Park, No. 16-3456
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 16 Julio 2019
    ...407 n.3 (7th Cir. 1988) (holding that Parratt did not apply to municipal liability analysis under Monell ), quoting Tavarez v. O’Malley , 826 F.2d 671, 677 (7th Cir. 1987), and Wilson v. Town of Clayton , 839 F.2d 375, 380 (7th Cir. 1988). We recognized in Easter House that the Supreme Cour......
  • Request a trial to view additional results
1 books & journal articles

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