Towers v. City of Chicago, 96 C 6510.

CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
Writing for the CourtKeys
Citation979 F.Supp. 708
PartiesSandra TOWERS, Robert Sturdivant, and Kevin Amos, individually and on behalf of all others similarly situated, Plaintiffs, v. CITY OF CHICAGO, Defendant.
Docket NumberNo. 96 C 6510.,96 C 6510.
Decision Date30 September 1997
979 F.Supp. 708
Sandra TOWERS, Robert Sturdivant, and Kevin Amos, individually and on behalf of all others similarly situated, Plaintiffs,
No. 96 C 6510.
United States District Court, N.D. Illinois, Eastern Division.
September 30, 1997.

Page 709

Thomas Peters, Mariel Nanasi, Chicago, IL, for Plaintiffs.

Diane Larsen, William Bazarek, City of Chicago Law Dept., Chicago, IL, for Defendant.

Page 710


KEYS, United States Magistrate Judge.

This matter comes before the Court on Plaintiffs' Motion to Certify Class pursuant to Federal Rule of Civil Procedure 23, Plaintiffs' Motion for Preliminary Injunction, and Defendant's Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, Plaintiffs' Motion to Certify Class, and Plaintiffs' Motion for Preliminary Injunction are denied, and Defendant's Motion to Dismiss is granted.


On August 30, 1996, Plaintiff, Sandra Towers, filed suit against Defendant, City of Chicago (the "City"), in state court, seeking a common law writ of certiorari to contest the final order of the City's administrative hearing officer and alleging violations of 42 U.S.C. § 1983 (" § 1983"). The City petitioned to remove the case to this Court, under federal question jurisdiction pursuant to 28 U.S.C. § 1441(b) & (c), and § 1446. On January 27, 1997, Ms. Towers filed her Second Amended Complaint ("Complaint") which added two additional Plaintiffs, Robert Sturdivant and Kevin Amos.


I. Facts Relating to Plaintiff Towers

On January 27, 1996, the City seized and impounded Ms. Towers' car pursuant to Chicago Municipal Code § 7-24-225, which authorizes the seizure of a vehicle that arresting officers have probable cause to believe contains a controlled substance. (Complaint at Count III, ¶¶ 7, 10, 14, 15.) At that time, Ms. Towers' car was being operated by her acquaintance, Ray Chambers, without her "express permission." (Complaint at Count III, ¶¶ 8-9.) When police officers stopped and searched the car, they found a controlled substance on a passenger in the car and, therefore, impounded the vehicle. (Complaint at Count III, ¶¶ 10, 15, 16.) Ms. Towers was not present when her car was searched or seized, nor had she given anyone, including Mr. Chambers, permission to transport controlled substances in her car. (Complaint at Count I, ¶ 3; Count III, ¶¶ 11-12.)

The following day, even though Ms. Towers had the appropriate paperwork and monies due, the City did not release her car to her because it had not yet completed the necessary paperwork. (Complaint at Count III, ¶¶ 19-20.) Ms. Towers attempted to retrieve her car from the City between January 28 and February 6, 1996. (Id.) However, at no time was she given notice of her right to demand a preliminary hearing, and, for that reason, she did not request such hearing.1 (Complaint at Count I, ¶ 6; Count III, ¶ 18.) Ms. Towers finally retrieved her car after paying a $500 cash bond and $225 for towing and storage fees. (Complaint at Count III, ¶¶ 21, 22, 28.)

On or about February 2, 1996, Ms. Towers received a letter notifying her of her right to a final hearing, at which she could contest the fees and costs of impoundment. (Complaint at Count III, ¶ 23.) At the hearing, pursuant to Chicago Municipal Code § 7-24-225, Ms. Towers was precluded from entering an innocent-owner defense because none of the ordinance's available defenses applied

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to her situation.2 (Complaint at Count III, ¶¶ 23, 25.) Consequently, on March 8, 1996, a final administrative order was entered against Ms. Towers. (Complaint at Count I, ¶ 15.)

II. Facts Relating to Plaintiff Sturdivant

In September of 1996,3 Chicago police officers seized and impounded Mr. Sturdivant's car under Chicago Municipal Code § 8-20-015, which provides for the imposition of fines and fees against registered owners of automobiles that contain an unregistered firearm. (Complaint at Count II, ¶¶ 7-10.) A person, not Mr. Sturdivant, was in Mr. Sturdivant's car and possessed a firearm at the time of the violation.4 (Complaint at Count II, ¶ 9.) Like Ms. Towers, Mr. Sturdivant was never notified by the City of his right to request a preliminary hearing, and did not request one. (Complaint at Count II, ¶ 11.) On or about October 1, 1996, Mr. Sturdivant received notice of his right to a final hearing concerning the impoundment of his car. (Complaint at Count II, ¶ 12.) Pursuant to Chicago Municipal Code § 8-20-015, Mr. Sturdivant was precluded from asserting his innocent-owner defense at a final hearing because no such defense is permitted under the ordinance.5 Because Mr. Sturdivant cannot avail himself of any of the defenses provided by the ordinance, he "will lose the hearing...." (Complaint at Count II, ¶¶ 14-15.)6 Further, because he was unable to pay the $500 cash bond, and additional towing and storage fees, he could not use his vehicle for approximately fifteen days. (Complaint at Count II, ¶¶ 20-21.)

III. Facts Relating to Plaintiff Amos

On October 29, 1996, Mr. Amos was seated inside his automobile, with his windows rolled up, at a gas station. (Complaint at Count X, ¶¶ 8-10.) He was counting his gas money and playing his car radio. (Id. at ¶ 10.) Two Chicago police officers ordered Mr. Amos out of his car, searched him, and searched his vehicle. (Complaint at Count II, ¶¶ 11-13.) No contraband was found on his person or in his car. (Complaint at Count II, ¶ 14.)

The officers charged Mr. Amos with violating sound device restrictions for playing his radio too loudly, pursuant to Chicago Municipal Code § 11-4-1115(c). (Complaint at Count II, ¶¶ 15-16.) The officers then seized his vehicle, and gave him a date to appear in traffic court on that charge. (Complaint at Count II, ¶¶ 15-16.) The officers also gave Mr. Amos notice of his right to request a preliminary hearing to contest probable cause. (Complaint at Count II, ¶¶ 19-20.)

At the preliminary hearing, on the day following impoundment, Mr. Amos appeared, but the arresting officers did not; the hearing officer concluded that there was sufficient probable cause to hold his automobile. (Complaint at Count II, ¶¶ 19-20.) At the time of the filing of the Complaint, Mr. Amos had not received notice of his final hearing. (Complaint at Count II, ¶ 21.)7 Mr. Amos

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was unable to pay the $500 fine pursuant to the statute, for "many days." (Complaint at Count II, ¶ 22.)


I. Defendant's Motion to Dismiss

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a motion to dismiss for failure to state a claim upon which relief can be granted tests the legal sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80, (1957); Chicago Dist. of Carpenters Pension Fund v. G & A Installations, Inc., No. 95 C 6524, 1996 WL 66098, at *1 (N.D.Ill. Feb.8, 1996). The Court must determine whether the plaintiffs would be entitled to relief under any set of facts that could be established in support of their claim. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59 (1984). In deciding a Rule 12(b)(6) motion, the court accepts as true all well-pled factual allegations in the complaint, and draws all reasonable inferences therefrom in the plaintiffs' favor. Lashbrook v. Oerkfitz, 65 F.3d 1339, 1343 (7th Cir.1995); Conley, 355 U.S. at 45-46, 78 S.Ct. at 101-02. The court will dismiss the complaint only when it appears beyond doubt that the plaintiffs have alleged no facts which, if proved, would entitle them to relief. Id.; Chaney v. Suburban Bus Div. of Regional Transp. Auth., 52 F.3d 623, 627 (7th Cir.1995).

A. Count I: Ms. Towers' Common Law Writ of Certiorari

Ms. Towers seeks a common law writ of certiorari for review of the final order of the administrative hearing held on February 22, 1996.8 Under Illinois law, state courts may issue common law writs of certiorari to an inferior administrative tribunal, if that tribunal has exceeded its jurisdiction, or proceeded illegally, and no direct appeal or review of its proceedings is available. Goodfriend v. Board of Appeals of Cook County, 18 Ill.App.3d 412, 305 N.E.2d 404, 409 (1973); see Holstein v. City of Chicago, 29 F.3d 1145, 1148 (7th Cir.1994) (recognizing defendant's right to seek review of municipality's administrative decision by state circuit court under writ of certiorari, citing Graff v. City of Chicago, 9 F.3d 1309, 1325 (7th Cir.1993), cert. denied, 511 U.S. 1085, 114 S.Ct. 1837, 128 L.Ed.2d 464 (1994)).

The reviewing court cannot examine extrinsic evidence absent statutory authorization. Goodfriend, 305 N.E.2d at 410. Nor can it weigh evidence or substitute its judgment for the discretion and judgment of the administrative agency. Quinlan and Tyson, Inc. v. City of Evanston, 25 Ill.App.3d 879, 324 N.E.2d 65, 74 (1975). A reviewing court can, however, examine all questions of fact and law contained in the record, including a de novo review of any constitutional issues. Holstein, 29 F.3d at 1148 (citing Howard v. Lawton, 22 Ill.2d 331, 175 N.E.2d 556 (1961)). Under Illinois law, a plaintiff seeking administrative review on constitutional grounds must raise those issues at the "earliest opportunity." Head-On Collision Line, Inc. v. Kirk, 36 Ill.App.3d 263, 343 N.E.2d 534, 538 (1976). Generally, a reviewing court should not interfere with an administrative body's discretionary authority, unless exercise of it is arbitrary and capricious, or such action is against the manifest weight of the evidence. Hanrahan v. Williams, 174 Ill.2d 268, 220 Ill.Dec. 339, 342, 673 N.E.2d 251, 254 (Ill.1996), petition for cert. filed, 65 U.S.L.W. 3799 (U.S. Mar. 3, 1997) (No. 96-1860).

The gravamen of Ms. Towers' claim is that she was denied a preliminary hearing and the opportunity to plead her innocence at the final hearing. Ms. Towers does not allege that the legal standard...

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