Viehweg v. City of Mount Olive

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

WILLIAM H. VIEHWEG, )

)

Plaintiff, )

)

v. ) Case No. 21-cv-3126

)

CITY OF MOUNT OLIVE, JOHN M._)

SKERTICH, JOE BERRY, )

MELINDA ZIPPAY, MARCIA )

SCHULTE, HOWARD HALL, )

RICHARD WEBB, JAMES COX, )

STEVE REMER, LEAH )

GOLDACKER, JOHN GOLDACKER, )

CHUCK COX, DAN O'BRIEN, )

BRADLEY G. HUMMERT, HENRY __)

MEISENHEIMER GENDE, INC., )

JEFF BONE, JANE DOE 1-10, and )

JOHN DOE 1-10, )

)

Defendants. )

OPINION

COLLEEN R. LAWLESS, United States District Judge:

Plaintiff William H. Viehweg filed a Complaint under 42 U.S.C. § 1983 asserting

violations of his Fourteenth Amendment rights. Before the Court are two Motions to

Dismiss under Federal Rule of Civil Procedure 12(b)(6). (Doc. 37, 41). For the following

reasons, both Motions to Dismiss are GRANTED.

I. FACTUAL ALLEGATIONS

A. Parties

Page 1 of 19

In his amended complaint, Plaintiff alleges Defendants violated his procedural

and substantive due process rights in addition to denying Plaintiff equal protection, all

in violation of the Fourteenth Amendment. (Doc. 36, Pl. Am. Compl. 18-20.) Plaintiff is a

resident of the City of Mount Olive, Illinois (“City”), a city of about 2,000 residents and

one of the named Defendants in this case. (Id. at 1.)

Defendant John M. Skertich served as the elected Mayor of the City at all times

relevant to this action or since at least 2011. (Id. at 2.) At all relevant times, Mayor

Skertich was the chief executive officer of the City, chairman of the City’s ordinance

committee, and the nominal leader of the City’s dominant political party. (Id.)

Defendant Bradley G. Hummert is the president of Defendant Henry

Meisenheimer & Gende, Inc. (HMG) and was appointed and supervised by Mayor

Skertich as the City’s Building Inspector solely for Plaintiff's garage. (Id.) Defendant

HMG, which does business as HMG Engineers, was appointed by Mayor Skertich as the

City’s Engineer and Building Inspector solely for Plaintiff's garage. (Id.)

Defendant Jeffrey Bone was appointed and supervised by Mayor Skertich as the

supervisor of the City Street Department. (Id.)

Defendant Melinda Zippay, who was politically supported by Mayor Skertich,

was elected to and has served as City Clerk since May 2013. (Id. at 3.)

Defendant Marcia Schulte, who was politically supported by Mayor Skertich,

was elected to and has served as Alderman of Ward 2 of the City. (Id.)

Page 2 of 19

Defendants Howard Hall, Richard Webb, James Cox, Steve Remer, Leah

Goldacker, and Chuck Cox were elected as Alderman of the City and politically

supported by Mayor Skertich. (Id. at 4.)

Defendant John Goldacker, who was politically supported by Mayor Skertich,

was elected as Alderman of the City and appointed as the City’s Building Inspector. (Id.

at 3.)

Defendant Dan O’Brien was appointed by Mayor Skertich and served as the

City’s Attorney. (Id. at 4.)

B. Relevant Facts

Plaintiff has resided at 114 W. 2nd South in the City for over 30 years, which is

located in Ward 2 of the City. (Id.) He is not politically active and is not part of the

dominant political party in the City. (Id.) Plaintiff is a private person who suffers from

chronic physical and mental health issues. (Id.)

Plaintiff's great-grandfather was the founder of the City and has a City park

named after him. (Id. at 5.) Plaintiff's great-uncle was a state senator, who resided and

maintained a law office in the City. (Id.)

An Illinois statute, 65 ILCS 5/11-31-1, authorizes municipal authorities to

address dangerous and unsafe buildings. (Id.) The statute mandates that all actions

must be authorized by the municipal authorities, including the City Mayor and City

Council. (Id.) The statute authorizes service of notice by mail to encumber an

individual’s property. (Id.)

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A City ordinance, Code 25-5-1 etc., addressed unsafe buildings until October 2,

2017. (Id.) The Code required that the City Building Inspector present a report to the

City Council for authorization to issue a Notice of Dangerous and Unsafe Building. Id.

The Code required service of said notice by mail. (Id.) The City, with just over 900

households, has previously represented in circuit court proceedings that it does not

follow its ordinances because it is a poor city. (Id. at 6.)

The City Council is comprised of eight aldermen, two from each ward, all of

whom are from the same political party. (Id.) The City Aldermen have voted

unanimously on all matters and have approved Mayor Skertich’s agenda and

appointments without dissent. (Id.)

Plaintiff alleges the City’s Police Department, without cause, has harassed

Plaintiff in the past. (Id. at 7.) Alderman Schulte holds a false grudge against Plaintiff

and has not spoken to Plaintiff at any time relevant to this case. (Id.) Alderman Schulte

lives across the street from the Plaintiff and has the most prominent view of Plaintiff's

garage. (Id.)

Bradley Hummert is a licensed municipal engineer. (Id.) As the City’s building

inspector for the Plaintiff's garage, Hummert supervises any person regarding

inspection of the garage, declaration of unsafe building, issuance of notice, and

recommendation for litigation. (Id. at 7-8.) As the City’s Building Inspector and

pursuant to 65 ILCS 5/11-31-1, Hummert has the sole authority to inspect and report to

the City’s corporate authorities on the condition of Plaintiff's garage and advise

whether a Notice of Dangerous and Unsafe Building should be authorized. (Id.)

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In or about the Spring of 2012, the City issued Notices of Dangerous and Unsafe

Buildings to several property owners. (Id. at 8.) The City Council did vote to authorize

the issuance of a Notice of Dangerous and Unsafe buildings, expressly under both state

statute and local ordinance, to one property owner who was a major supporter of the

dominant political party and Mayor Skertich. (Id.) The City received a state grant to

demolish and remove that building, which resulted in a substantial financial gain for

the property owner. (Id. at 9.)

On July 9, 2012, the City served the 1st Notice of Dangerous and Unsafe Building

regarding Plaintiff's garage. (Id.) The 2012 notice resulted in a case being filed in circuit

court in 2013, but the case was dismissed without prejudice. (Id. at 10.) On September 4,

2013, the City served a 2nd Notice of Dangerous and Unsafe Building regarding

Plaintiff's garage. (Id.) The City abandoned this notice without pursuing litigation. (Id.

at 11.) On April 1, 2014, the City issued a 3rd Notice of Dangerous and Unsafe Building

regarding Plaintiff's garage. (Id.) The 2014 notice resulted in litigation in which the

circuit court held that it could order Plaintiff to repair the building. (Id. at 11-12; see also

City of Mt. Olive v. Viehweg, 2017 IL App (4th) 160370-U.) However, the appellate court

reversed the decision of the circuit court because the city council did not vote on the

measure to abate Plaintiff's nuisance through court action. (Id.)

On March 3, 2021, the City issued a 4th Notice of Dangerous and Unsafe

Building regarding Plaintiff's garage. (Id. at 15.) The City’s 4th Notice was signed by

City Police Chief Joe Berry, who personally served Plaintiff with notice. (Id.) On April

27, 2021, Plaintiff sent a letter to the City. (Id.) On May 3, 2021, the City Council voted

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unanimously to accept Plaintiff's letter. (Id. at 16.) On May 7, 2021, Jeff Bone ordered the

City street department to place two sawhorses and caution tape on Plaintiff's property.

(Id.) On May 19, 2021, City Attorney Dan O’Brien left Plaintiff a telephone message

about avoiding litigation and saving money. (Id.)

Plaintiff alleges it is irrational for the City to not comply with 65 ILCS 5/11-31-1.

(Id.) Jeff Bone has caused the demolition of several buildings due to unlawful notices of

unsafe building. (Id.) Moreover, Bradley Hummert understood that he would testify at

any hearing regarding Plaintiff’s unlawful 4th Notice of Unsafe Building. (Id.)

Plaintiff claims that, as the only City of Mt. Olive resident who has resisted the

conspirators’ unlawful actions, he fears retaliation, false accusation, false arrest, loss of

liberty, and loss of property. (Id.) Plaintiff states that he has not repaired his garage. (Id.

at 17.) Furthermore, the City’s 4" Notice establishes the City’s control over Plaintiff's

garage, encumbers Plaintiff's property, and devalues it. (Id.)

Plaintiff alleges each Defendant knowingly engaged in conspiracy,

understanding that when he or she accepted his or her position with the City, he or she

would be a co-conspirator under Mayor Skertich’s direction. (Id. at 18.) According to

Plaintiff, every Defendant had an integral role regarding the City’s unlawful notices of

unsafe buildings based on their position with the City. (Id.)

Plaintiff asserts the allegations establish claims for deprivation of his procedural

and substantive due process and denial of equal protection. (Id. at 18-20.)

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II. DISCUSSION

Defendants Bradley G. Hummert and HMG move to dismiss Plaintiff's

Amended Complaint on the basis Plaintiff failed to allege that either Defendant was

involved in a conspiracy with other Defendants to deprive Plaintiff of his constitutional

rights. (Doc. 37, Def.’s First Mot. Dismiss 2.) Additionally, Defendants assert any § 1983

claims are time-barred because all of the alleged acts by Hummert and HMG occurred

more than two years before the lawsuit was filed. (Id.)

In response, Plaintiff argues it is more than plausible that Defendants Hummert

and HMG would testify at any future hearing on the matter. (Doc. 48, P1.’s Resp. First

Mot. Dismiss 5.) Moreover, it is plausible that Defendants agreed to be silent while

other co-conspirators acted to issue and serve the notice and take control over Plaintiff's

property. (Id.) Plaintiff also claims that these Defendants are the City’s engineers and

are obtaining substantial benefit from their participation. (Id.)

Defendants City of Mt. Olive, Joe Berry, Jeff Bone, Chuck Cox, James Cox,

Howard Hall, John Goldacker, Leah Goldacker, Dan O’Brien, Steve Remer, Marcia

Schulte, John Skertich, Richard Webb, and Melinda Zippay seek dismissal on the basis

that Plaintiff's allegations are conclusory and are not supported by any facts. (Doc. 41,

Def.’s Second Mot. Dismiss 1-2.) Additionally, any claims concerning incidents that

occurred prior to June 3, 2019, are barred by the two-year limitations period. (Id. at 2.)

Finally, Plaintiff's claims concerning 2021 events are not yet ripe, and the individual

Defendants are entitled to qualified immunity on the damages claims. (Id.)

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In response, Plaintiff claims the sixteen Defendants are co-conspirators who have

custody of all of the evidence which is not yet known to Plaintiff. (Doc. 47, PL’s Resp.

Second Mot. Dismiss 1.) Plaintiff asks the Court to withhold decision until completion

of discovery. However, the sufficiency of the allegations of the complaint are at issue in

a motion to dismiss, not the potential evidence that might be uncovered in discovery.

Plaintiff alleges that any acts occurring more than two years before the

Complaint are not presented for the purpose of alleging an independent cause of action

but are pleaded as circumstantial evidence in order to establish what Defendants did or

must have known, the nature of Defendants’ intent and mutual understanding, and

Defendants’ expected roles regarding the acts and/or omissions. (Doc. 47, P1.’s Resp.

Second Mot. Dismiss 3.) Additionally, the issue is ripe for review. (Id. at 5.) Plaintiff

further claims he has pled sufficient facts to assert conspiracy, and Defendants are not

entitled to qualified immunity. (Id. at 6-8.)

A. Legal Standard

A motion under Rule 12(b)(6) challenges the sufficiency of the complaint. See

Christensen v. Cnty. of Boone, Ill., 483 F.3d 454, 458 (7th Cir. 2007). When considering a

motion to dismiss under Rule 12(b)(6), the Court construes the complaint in the light

most favorable to the plaintiff, accepting all well-pleaded allegations as true and

construing all reasonable inferences in plaintiff's favor. (Id.)

To state a claim for relief, a plaintiff need only provide a short and plain

statement of the claim showing he is entitled to relief and giving the defendants fair

notice of the claims. Maddox v. Love, 655 F.3d 709, 718 (7th Cir. 2011). Pro se motions are

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liberally construed. Parker v. Four Seasons Hotels, Ltd., 845 F.3d 807, 811 (7th Cir. 2017)

(We “construe pro se filings liberally, and we will address any cogent arguments we are

able to discern.”). However, the complaint must set forth facts that plausibly

demonstrate a claim for relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007). A

plausible claim is one that alleges factual content from which the Court can reasonably

infer that the defendants are liable for the misconduct alleged. See Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009). Merely reciting the elements of a cause of action or supporting

claims with conclusory statements is insufficient to state a claim. Id. The complaint must

do more than assert a right to relief that is “speculative.” Virnich v. Vorwald, 664 F.3d

206, 212 (7th Cir. 2011).

B. Defendants Hummert and HMG

Defendants Bradley G. Hummert and HMG move to dismiss on the basis that

Plaintiff's allegations directed at them involve conduct that occurred in 2012, 2013, and

2015, and such claims are time-barred under the two-year statute of limitations period

for § 1983 claims. (Doc. 38, Mem. Supp. Mot. Dismiss 1.) Defendants further assert that,

even if the claims are not time-barred, the limited conduct that Plaintiff attributes to

Defendants Hummert and HMG falls short of plausibly alleging those Defendants were

involved in a conspiracy to deprive Plaintiff of his constitutional rights. (Id.)

The applicable statute of limitations for § 1983 claims is the state limitations

period for personal injury torts, which in Illinois is two years. See Owens v. Evans, 878

F.3d 599, 563 (7th Cir. 2017). The following overt acts alleged in the Amended

Complaint are the only ones attributed to Hummert or HMG: (1) prior to July 9, 2012,

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HMG reported that it could not determine Plaintiff's garage to be unsafe without an

interior inspection (Doc. 36, Pl. Am. Compl. 9-10); (2) on August 15, 2013, Hummert

wrote a letter stating that he had inspected and photographed the exterior of Plaintiff's

garage (Id. at 10-11); and (3) on September 2, 2015, Hummert testified that Mayor

Skertich asked him to inspect Plaintiff's garage, and Hummert delivered his report to

Mayor Skertich (Id. at 12.) This lawsuit was filed on June 3, 2021. According to Plaintiff's

own allegations, all acts committed by Hummert and HMG that form the basis of

Plaintiff’s claims were committed well over two years before the action was filed.

Plaintiff argues the actions attributed to Defendants Hummert and HMG are part of an

ongoing ten-year conspiracy. (Doc. 48, Pl. Resp. First Mot. Dismiss 2.)

Even assuming Defendants Hummert’s and HMG’s acts in stating that an

interior inspection of Plaintiff's garage is needed and submitting a report concerning an

inspection of the exterior of the garage to the Mayor could support a § 1983 claim, any

such claims are time-barred. To the extent Plaintiff alleges these Defendants would

testify at any future hearing, that claim is speculative at best. The assertion that these

Defendants agreed to be silent while other Defendants served notice and sought control

of Plaintiff's property is also speculative. Therefore, the Court will grant Defendants’

Motion to Dismiss on the basis that any claims against Hummert and HMG are barred

by the two-year statute of limitations.

Even if the Plaintiff's claims are not barred by the limitations period, it is difficult

to see how the acts of inspecting the exterior of Plaintiff's garage, drafting a report

concerning the inspection, and testifying at a hearing about the report could constitute a

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conspiracy to deprive Plaintiff of his constitutional rights. Accordingly, the Court

concludes that dismissal is also appropriate on that basis.

C. Additional Defendants

Defendants City of Mt. Olive, Joe Berry, Jeff Bone, Chuck Cox, James Cox,

Howard Hall, John Goldacker, Leah Goldacker, Dan O’Brien, Steve Remer, Marcia

Schulte, John Skertich, Richard Webb, and Melinda Zippay also move to dismiss

Plaintiff's Amended Complaint for failure to state a claim. (Doc. 41, Def’s Second Mot.

Dismiss.)

1. Procedural Due Process Claim

Plaintiff alleges Defendants violated his procedural due process rights under the

Fourteenth Amendment which provides in part, “[nJo state shall... deprive any

person of life, liberty, or property without due process of law.” U.S. Const. amend. XIV,

§ 1. The alleged violation of a rule or ordinance is not enough to allege a constitutional

claim. See Taake v. County of Monroe, 530 F.3d 538, 541 (7th Cir. 2008) (“A unit of state or

local government does not violate the federal Constitution just because it violates a state

or local law.”) To assert a claim for violation of procedural due process, a plaintiff must

demonstrate “1) a cognizable property interest; (2) a deprivation of that property

interest; and (3) a denial of due process.” Forgue v. City of Chicago, 873 F.3d 962, 969 (7th

Cir. 2017). Property interests are not derived from the Constitution but are created and

its dimensions defined by existing rules or understanding from another source such as

state law. See id.

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The constitutional violation is not complete “unless and until the State fails to

provide due process.” Zinermon v. Burch, 494 U.S. 113, 126 (1990). It is thus necessary to

“examine the procedural safeguards built into the statutory or administrative procedure

of effecting the deprivation, and any remedies for erroneous deprivations provided by

statute or tort law.” Id. A factor in determining the adequacy of pre-deprivation

proceedings is the availability and nature of post-deprivation remedies. See Tucker v.

City of Chicago, 907 F.3d 487, 491-92 (7th Cir. 2018). While a plaintiff need not exhaust

state remedies before bringing a § 1983 claim, “a plaintiff who foregoes her right to

pursue post-deprivation remedies available under state law faces a high hurdle in

establishing a due process violation.” Id. at 492; see also Simmons v. Gillespie, 712 F.3d

1041, 1044 (7th Cir. 2013) (“The due process clause does not permit a litigant to disdain

his opportunities under state law and then demand that the federal judiciary supply a

remedy.”). Therefore, a plaintiffs right to pursue judicial review in state court is a factor

for federal courts to consider. Id.

Plaintiff has not alleged Defendants demolished his garage or that he does not

have the use or enjoyment of his garage due to any actions of the City Defendants. In

fact, Plaintiff alleges that he has not repaired his garage, and “it stands like a monument

to due process and equal protection of law.” (Doc. 36, Pl. Am. Compl., 17.)

Plaintiff neither alleges he was deprived of any property nor threatened with a

violation of property rights or liberty without due process. Plaintiff's Amended

Complaint alleges that, in previous instances when the City sought to address the

defects of Plaintiff's garage, the City provided Plaintiff with notice that the building was

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dangerous or unsafe before initiating any judicial proceedings and abandoned the

initiation of a judicial proceeding after another notice was provided. (Doc. 36, Pl. Am.

Compl., 9-13.) Plaintiff also alleges that, in 2017, the City adopted § 11-31-1 of the

Illinois Municipal Code (65 ILCS 5/11-31-1), which provides that with 15 days’ written

notice mailed to the property owner, corporate authorities may apply to the circuit

court for an order authorizing action to be taken on an unsafe building. Plaintiff does

not allege that the notice provided him on March 3, 2021, resulted in any circuit court

action.

Plaintiff does not allege that his judicial remedy in circuit court, assuming an

action is filed against Plaintiff, is constitutionally inadequate. Rather, Plaintiff's

allegations indicate that he has prevailed thus far and has avoided the City’s efforts

seeking demolition of the garage. To the extent Plaintiff alleges City officials have

violated state law prior to initiating any state proceedings, the violation of state law

does not equate with a violation of the Constitution. See Taake, 530 F.3d at 541. Plaintiff

admits in his Amended Complaint that he has been provided notice, an opportunity to

be heard, and a judicial forum before any deprivation has occurred. Because Plaintiff

has alleged no facts suggesting a plausible procedural due process claim, the Court

grants Defendants’ Motion to Dismiss Plaintiff's procedural due process claims.

2. Substantive Due Process Claim

Plaintiff also alleges a claim for violation of his substantive due process rights

under the Fourteenth Amendment. Substantive due process is very limited in scope and

protects against “only the most egregious and outrageous government action.” Campos

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v. County of Cook, 932 F.3d 972, 975 (7th Cir. 2019). To assert a substantive due process

claim, a plaintiff must allege the government abused its power in a manner that is “so

contrary and oppressive that it shocks the conscience.” Catinella v. County of Cook, 881

F.3d 514, 519 (7th Cir. 2018). The decision of the government entity must have been

arbitrary to the point of being egregious to implicate substantive due process. See id.

“Unless a governmental practice encroaches on a fundamental right, substantive

due process requires only that the practice be rationally related to a legitimate

governmental interest, or alternatively phrased, that the practice be neither arbitrary

nor irrational.” Lee v. City of Chicago, 330 F,3d 456, 467 (7th Cir. 2003). Because the right

infringed upon is an interest in property rather than life or liberty, the plaintiff property

owner must first establish either an independent constitutional violation or show that

the state court remedies are inadequate before a federal court considers whether the

interference with property is arbitrary or irrational. Id.

“Once a landowner obtains such a state-created property right, the due process

clause of the Fourteenth Amendment circumscribes, but does not eliminate, the

government's ability to deprive him of that interest.” General Auto Service Station v. City

of Chicago, 526 F.3d 991, 1000 (7th Cir. 2008). Substantive due process neither “acts as a

blanket protection against unjustifiable interferences with property” nor does it “confer

on federal courts a license to act as zoning boards of appeals.” Id.

Plaintiff has not alleged that the state law procedures surrounding the

deprivation of property are inadequate or that Defendants have engaged in an

independent violation of a fundamental right within the meaning of due process. The

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City Defendants certainly have a rational interest in seeking to have buildings in

disrepair renovated or removed. Those individuals must consider issues such as

property values along with attracting residents and businesses to the City. Such actions

by the Defendants are not egregious, arbitrary and capricious, random, or irrational and

they certainly do not in any way shock the conscience.

To the extent Plaintiff alleges Defendants violated a local ordinance and/or state

law, that is not enough to allege a substantive due process claim. See Taake, 530 F.3d at

541. Because Plaintiff has failed to allege facts suggesting a plausible substantive due

process claim, the Court grants Defendants’ Motion to Dismiss Plaintiff's substantive

due process claims.

3. Equal Protection Claim

Plaintiff also alleges Defendants violated his equal protection right guaranteed

by the Fourteenth Amendment. The equal protection clause prohibits “invidious

discrimination in statutory classifications and other governmental activity.” D.S. 0. East

Porter County School Corp., 799 F.3d 793, 799 (7th Cir. 2015). Plaintiff must show

Defendants “acted with a nefarious discriminatory purpose and discriminated against

[him] based on [his] membership in a definable class.” Id. In order to assert a claim for

violation of the equal protection clause, a plaintiff must establish that (1) he is a member

of a protected class; (2) he is otherwise similarly situated to members of the unprotected

class; and (3) he was treated differently from members of the unprotected class. See

McMillian v. Svetanoff, 878 F.2d 186, 189 (7th Cir. 1989).

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Here, Plaintiff has not alleged he is a member of any protected class. He did not

allege any facts regarding discriminating behavior by Defendants against him because

of his race, national origin, or gender. Accordingly, the Court concludes that Plaintiff

has not asserted an equal protection claim based on invidious discrimination.

The Equal Protection Clause also prohibits the singling out of an individual for

different treatment for no rational reason. See Swanson v. City of Chetek, 719 F.3d 780, 783

(7th Cir. 2013). In order to succeed on a class-of-one equal protection claim, a plaintiff

must show that he was intentionally treated differently from others similarly situated

and there is no rational basis for that treatment. See Miller v. City of Monona, 784 F.3d

1113, 1119-20 (7th Cir. 2015). “Enforcement of local ordinances is a prosecutorial

decision, which entails selectivity.” Van Dyke v. Village of Alsip, 819 F. App’x 431, 432

(7th Cir. 2020) (internal citation omitted). “So an exercise of prosecutorial discretion,

unless based on some invidious discrimination, is not typically a basis for a class-of-one

challenge.” Id. However, class-of-one claims can be premised on “allegations of the

irrational or malicious application of law enforcement powers” for reasons such as

animus or harassment. Geinosky v. City of Chicago, 675 F.3d 743, 747 (7th Cir. 2012). In

order to withstand a motion to dismiss, a plaintiff raising a class-of-one equal protection

claim must allege facts sufficient to overcome the presumption of rationality that

applies to government action. Flying J, Inc. v. City of New Haven, 549 F.3d 538, 546-47 (7th

Cir. 2008). A plaintiff must “negative any reasonably conceivable state of facts that

could provide a rational basis” for defendant's actions. 145 Fisk, LLC v. Nicklas, 986 F.3d

799, 772 (7th Cir. 2021).

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The facts alleged in Plaintiff's Amended Complaint do not negate every

conceivable rational basis for Defendants’ actions. Rather, they show Defendants’

actions had a rational basis. Plaintiff has a garage that the City claims is dilapidated.

Plaintiff was given multiple notices to repair or demolish the garage. A court previously

found that the garage needed to be demolished. (Doc. 36, Pl. Am. Compl. 11.) However,

that judgment was reversed based on problems with the City’s ordinance and Mayor

Skertich’s unilateral actions. (Id.) The appellate court did not disagree with the finding

that the garage needed to be demolished. In 2017, Defendants amended the applicable

ordinance and, when the garage was neither repaired nor demolished, the City later

commenced efforts to remedy what the City believed was a dangerous and unsafe

building. (Id. at 14-16.) While Plaintiff now disputes that the roof has collapsed, he

previously admitted that the roof of the structure had collapsed. See City of Mt. Olive v.

Viehweg, 2017 IL App (4th) 160370-U. The City has taken no action other than to notify

Plaintiff he is the owner of a dangerous and/or unsafe building, which could result in

further action by a judicial tribunal. Although Plaintiff claims he is a victim of

harassment, the Court finds Plaintiff has not alleged sufficient facts to overcome the

presumption of rationality as to the City’s actions.

Because Plaintiff has failed to allege that he was treated differently than similarly

situated persons and has not met his burden of alleging facts negating every

conceivable rational basis for Defendants’ actions, the Court finds Plaintiff has not

alleged a plausible equal protection violation. Therefore, Plaintiff's equal protection

claim is dismissed.

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Ill. CONCLUSION

For the reasons stated herein, Plaintiff’s due process and equal protection claims

are dismissed for failure to allege a plausible claim. Dismissal is also appropriate to the

extent that any claims occurred prior to June 3, 2019, on the basis that such claims are

time-barred for the reasons noted in Defendants Hummert’s and HMG’s Motion to

Dismiss.

Additionally, any procedural due process claims relating to the 2021 notice are

not yet ripe, because Plaintiff has not alleged the City initiated state court proceedings

since the March 2021 notice to require Plaintiff to make his garage safe. A plaintiff may

initiate an action when “the government entity charged with implementing the

regulations has reached a final decision regarding the application of the regulations to

the property at issue.” Williamson County Regulation Planning Commission v. Hamilton

Bank of Johnson City, 473 U.S. 172, 187 (1985), overruled on other grounds by Knick v.

Township of Scott, Pennsylvania,___ U.S. ____, 139 S. Ct. 2162, 2169 (2019). The Court in

Knick noted that the finality requirement discussed in Williamson County was not at

issue. Id. at 2169. If the City were to initiate such an action, Plaintiff would be entitled to

an opportunity to be heard and to receive due process at the state level. Because that

did not occur, Plaintiff's claims concerning the 2021 notice are not yet ripe.

Finally, the individual Defendants would also be entitled to qualified immunity

as to Plaintiff's claims for damages because Plaintiff has not plausibly alleged that any

Defendant violated his clearly established constitutional rights.

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For all of these reasons, Defendants Henry Meisenheimer & Gende, Inc. and

Bradley G. Hummert’s Motion to Dismiss under Rule 12(b)(6) (Doc. 37) is GRANTED.

The remaining Defendants’ Motion to Dismiss under Rule 12(b)(6) (Doc. 41) is

also GRANTED.

The Clerk will enter Judgment in favor of Defendants and close this case.

ENTER: April 21, 2023

COLLE . LAWLESS

UNITED SYATES DISTRICT JUDGE

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