# Pearson v. Village of Broadview

> District Court, N.D. Illinois · June 19, 2018

URL: https://www.frixlaw.com/law-library/cases/10138716

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** June 19, 2018
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JIM PEARSON, )
)
Plaintiff, )
)
v. ) No. 18-CV-567
)
VILLAGE OF BROADVIEW, MAYOR ) Judge Thomas M. Durkin
SHERMAN C. JONES, BUILDING )
COMMISSIONER DAVID UPSHAW, and the )
VILLAGE BOARD OF TRUSTEES, )
)
Defendants. )
MEMORANDUM OPINION AND ORDER
Plaintiff Jim Pearson brought this action against Defendants Village of
Broadview, Mayor Sherman C. Jones, Building Commissioner David Upshaw, and
the Village Board of Trustees asserting two claims titled Procedural Due Process
(Count I) and Abuse of Governmental Power (Count II). Before the Court is
Defendants’ motion to dismiss both claims. For the reasons explained below,
Defendants’ motion is granted in part and denied in part.
LEGAL STANDARD
A Rule 12(b)(6) motion challenges the sufficiency of the complaint. See
Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570 F.3d 811, 820 (7th
Cir. 2009). Under Rule 8(a)(2), a complaint must include “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). Under the federal notice pleading standards, a plaintiff’s “factual allegations
must be enough to raise a right to relief above the speculative level.” Bell Atlantic v.
Twombly, 550 U.S. 544, 555 (2007). “In evaluating the sufficiency of the complaint,
[courts] view it in the light most favorable to the plaintiff, taking as true all well-
pleaded factual allegations and making all possible inferences from the allegations

in the plaintiff’s favor.” AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir.
2011). A defendant may raise the statute of limitations in a motion to dismiss if “the
allegations of the complaint itself set forth everything necessary to satisfy the
affirmative defense.” United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005).
BACKGROUND
This action arises out of Defendants’ refusal to grant Pearson a renewal of his

6b tax classification for a property located in Broadview, IL. R. 26, Second Amended
Complaint, ¶ 5. The 6b tax classification is designed to encourage industrial
development and increase employment opportunities throughout Cook County by
offering a real estate tax incentive for the development and rehabilitation of
industrial structures. COOK COUNTY ASSESSOR’S OFFICE, CLASS 6B ELIGIBILITY
BULLETIN (2018) (“Eligibility Bulletin”).1 The 6b tax classification may be renewed
by filing a renewal application and by submitting a certified copy of the resolution

1 Available at http://www.cookcountyassessor.com/assets/forms/cls6bb.pdf. Courts
may take judicial notice of facts that are “not subject to reasonable dispute because
[they] . . . can be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2). This includes matters of
public record, including “state statutes, city charters, and city ordinances,” Iovinelli
v. Pritchett, 2008 WL 2705446, at *2 (N.D. Ill. July 9, 2008), and “information
presented on reliable websites,” Incandela v. Great-W. Life & Annuity Ins. Co., 2010
WL 438365, at *5 (N.D. Ill. Feb. 4, 2010), such as the Cook County Assessor’s office
here.
or ordinance by the municipality in which the property sits stating that it supports
and consents to the renewal of the tax incentive. Id. at 4.
Pearson has owned the commercial lot at issue since January 14, 2005. R. 26

¶ 5. He submitted an application for the initial 6b tax classification to Defendants
on April 14, 2005. Id. ¶ 6. Defendants approved and granted the application on June
20, 2005. Id. ¶ 7. In April 2014, Pearson submitted a renewal application to the
Cook County Assessor’s office. Id. ¶ 8. A few months later on September 19, 2014,
Pearson sent a letter to Defendants notifying them of the renewal application. Id. ¶
9. Pearson requested a board meeting for consideration of the resolution supporting

the renewal. Id. At some point after he sent the letter, the Defendants refused to
grant him a hearing, and told him that the “Village of Broadview would no longer be
issuing 6B resolutions to anyone.” Id. ¶ 20.
Around the same time, Pearson attempted to sell the property. On September
15, 2015, he received a letter of intent to purchase the property for $2,750,000. R. 6-
1, Ex. E. The prospective buyer visited the Village of Broadview’s municipal offices
to inquire about the renewal application, but was told by the building commissioner,

defendant Upshaw, that a $50,000 campaign contribution “would make the process
go much smoother.” R. 26 ¶ 21. The potential buyer rescinded her offer. Id. ¶ 22.
Pearson then received an offer from a new potential purchaser, Graymills
Corporation, on February 10, 2016 for $2,350,000. Id. ¶ 23. Shortly thereafter,
Pearson discovered that Defendants had approved Graymills’ 6b application,
allegedly before the purchase was completed. Id. ¶ 24. It is not clear from the
complaint when Graymills legally obtained the property.
DISCUSSION

Pearson brings two claims. First, he alleges Defendants violated his
constitutional right to procedural due process by not providing him a hearing for the
renewal of the 6b tax classification. R. 26 ¶ 15. Second, he alleges Defendants
abused their governmental power by approving Graymills’ resolution for the 6b
classification. Id. ¶ 24. Defendants moved to dismiss, arguing the statute of
limitations on his first claim has expired and that Pearson has failed to state a

claim under either count. R. 14.
I. Statute of Limitations
Federal courts adopt the forum state’s statute of limitations for deprivation of
constitutional rights claims. See Wilson v. Garcia, 471 U.S. 261, 261-62 (1985). A
deprivation of constitutional rights is litigated pursuant to 42 U.S.C. § 1983. See
Nelson v. Campbell, 541 U.S. 637, 643 (2004). The limitations period for § 1983
claims is based in state law, and the statute of limitations for § 1983 actions in

Illinois is two years. See O’Gorman v. City of Chicago, 777 F.3d 885, 889 (7th Cir.
2015). But “the date at which the claim accrues and thus starts the running of the
limitations period is a matter of federal law, and generally occurs when a plaintiff
knows the fact and the cause of an injury.” Id.
Here, the complaint does not allege when Defendants denied Pearson a
hearing on the 6b tax classification. The Court can assume that the failure occurred
sometime after September 19, 2014, when Pearson sent a request to Defendants for
consideration of the renewal application. It is not clear from the complaint,
however, that Pearson was aware of Defendants’ failure to grant a hearing before

September 2015, when the first buyer rescinded its offer because of Defendants’
failure to grant the renewal application and their alleged solicitation of a bribe. See
R. 26 ¶ 16. Defendants cite General Auto Service Station v. City of Chicago, 2004
WL 442636 (N.D. Ill. March 9, 2004) in support of their argument that the statute
of limitations began running in September 2014, when Pearson submitted a letter
to Defendants notifying them of the renewal application. In General Auto Service,

the plaintiff submitted a non-conforming use permit application in 1995 after
receiving a notice that it was in violation of a zoning ordinance. It did not receive a
response, but did receive a second notice of violation in August 1997. Id. at *5. The
application was then denied, the plaintiff appealed, and the decision to deny the
application was affirmed. The plaintiff contended that the date the statute of
limitations began running was the date of the final judgment affirming the denial.
Id. at *7. The court disagreed and held that the statute began to run when the

plaintiff first became aware of the denial through the second notice of violation, not
when he continued to feel the denial’s “ill effects” through later administrative
proceedings. Id. at *8. Here, however, there are no allegations that Pearson became
aware of the denial of the renewal before September 2015. Unlike in General Auto
Service, Pearson does not allege that he received a letter or other notification from
Defendants informing him of the denial. Taking the facts in the light most favorable
to Pearson, it is plausible he first became aware of the alleged violation in
September 2015, when the buyer rescinded its offer because of the denial of the 6b
tax classification. An act giving rise to a claim occurs when the plaintiff “knows or

should know that his [] constitutional right has been violated.” Lawshe v. Simpson,
16 F.3d 1475, 1478 (7th Cir. 1994). Accordingly, Pearson’s complaint is not untimely
on its face.
II. Procedural Due Process
Defendants next argue that Pearson failed to allege a protected property
right, which is necessary to succeed on his procedural due process claim. To state a

claim for a procedural due process violation, Pearson must establish: (1) a protected
property interest; (2) a deprivation of that property interest by an individual acting
under the color of state law; and (3) a denial of due process. Booker-El v.
Superintendent, Ind. State Prison, 668 F.3d 896, 900 (7th Cir. 2012). A protected
property interest exists only when the state’s discretion is “clearly limited such that
the plaintiff cannot be denied the interest unless specific conditions are met.” Id.
Pearson must “point to a state law, or another independent source, that guarantees

him” entitlement to a government benefit. Brown v. City of Mich. City, Ind., 462
F.3d 720, 729 (7th Cir. 2006). Here, Pearson has no protected property interest in
the renewal of his 6b tax classification. The Eligibility Bulletin states only that the
6b classification “may be renewed . . . by filing a renewal application and a certified
copy of a resolution or ordinance adopted by the municipality in which the real
estate is located, . . . expressly stating that it supports and consents to the renewal
of the Class 6b incentive and that it has determined that the industrial use of the
property is necessary and beneficial to the local economy.” Eligibility Bulletin at 4.
Pearson fails to cite to any other municipal, county, or state law guaranteeing him

the right to a renewal of the 6b tax classification. Pearson also fails to point to any
Village of Broadview ordinance delineating specific conditions entitling Pearson to
consideration of, or a hearing regarding, the renewal application. The Fourteenth
Amendment does not require a remedy when there has not been a deprivation of a
protected interest. Davidson v. Cannon, 474 U.S. 344, 348 (1986). Pearson fails to
state a claim for procedural due process as to Defendants’ denial of his right to a

hearing.
III. Equal Protection Claim
Pearson’s second claim, titled “abuse of governmental power,” is really an
equal protection claim, alleging Defendants treated Pearson differently by refusing
to approve his 6b resolution while granting Graymills’ application on the same
property. See R. 26 ¶ 24. Because Pearson does not allege membership in a
protected class, the Court analyzes his allegations under a “class-of-one” theory. To

prevail on a class-of-one equal protection theory, “a plaintiff must allege that he has
been [1] intentionally treated differently from others similarly situated and that [2]
there is no rational basis for the difference in treatment.” Forgue v. City of Chicago,
873 F.3d 962, 968 (7th Cir. 2017) (citing Engquist v. Or. Dep’t of Argric., 553 U.S.
591, 601–02 (2008)).2 Stated differently, the Equal Protection Clause “protect[s]
individuals against purely arbitrary government classifications, even when a
classification consists of singling out just one person for different treatment for

arbitrary and irrational purposes.” Geinosky v. City of Chicago, 675 F.3d 743, 747
(7th Cir. 2012). Here, Pearson alleges Defendants intentionally treated him
differently than a similarly situated company, Graymills, because Pearson and his
potential buyer did not pay the Defendants’ solicited bribe. Pearson’s allegations of
bribery “overcome the presumption of rationality that applies to government
classifications,” St. John’s United Church of Christ v. City of Chicago, 502 F.3d 616,

639 (7th Cir. 2007), required to survive a motion to dismiss an equal protection
claim. Of course, discovery will show whether Graymills and Pearson were in fact
similarly situated, and whether Defendants had a rational basis for granting
Graymills’ 6b classification request over Pearson’s.
IV. The Village Defendants
Defendants also moved to dismiss portions of the complaint on three
additional bases. First, Defendants argue Pearson failed to plead any Monell

allegations against defendant the Village of Broadview. A municipality can be sued

2 The exact elements of a class-of-one claim have been in flux since the Seventh
Circuit’s en banc decision in Del Marcelle v. Brown County Corp., 680 F.3d 887 (7th
Cir. 2012) (separate en banc decisions). But whatever the resolution of that debate
may be, the Seventh Circuit since has stated that even under the “least demanding
standard,” “a class-of-one plaintiff must, to prevail, negat[e] any reasonably
conceivable state of facts that could provide rational basis for the classification.”
Miller v. City of Monona, 784 F.3d 1113, 1121 (7th Cir. 2015). “Thus, even at the
pleadings stage, all it takes to defeat a class-of-one claim is a conceivable rational
basis for the difference in treatment.” Id. (quoting D.B. ex rel. Kurtis B. v. Kopp, 725
F.3d 681, 686 (7th Cir. 2013)).
if its agents are carrying out “(1) an express municipal policy; (2) a widespread,
though unwritten, custom or practice; or (3) a decision by a municipal agent with
final policymaking authority.” Kristofek v. Vill. of Orland Hills, 832 F.3d 785, 799

(7th Cir. 2016). Pearson alleges the mayor, the building commissioner, and the
board of trustees of the Village of Broadview acted as its agents. These individuals
surely have final policymaking authority in the Village. The Court denies
Defendants’ motion to dismiss for a failure to plead Monell allegations.
Second, Defendants move to dismiss defendant Village Board of Trustees as
duplicative. The Court agrees that naming the Village’s Board of Trustees is

duplicative of naming the Village itself. See Kiser v. Naperville Cmty. Unit, 227 F.
Supp. 2d 954, 960 (N.D. Ill. 2002) (dismissing individual defendants named in their
individual capacities as redundant of naming the entity itself). Accordingly,
defendant Village Board of Trustees is dismissed.
Finally, Defendants move to dismiss the punitive damages allegations
against the Village of Broadview.3 Municipalities are not subject to punitive
damages in suits under 42 U.S.C. § 1983. Robinson v. City of Harvey, Ill., 617 F.3d

915, 916 (7th Cir. 2010) (citing Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981)).

3 Although Defendants incorporate this request into their motion to dismiss under
Fed. R. Civ. P. 12(b)(6), this request is appropriately a motion to strike under Fed.
R. Civ. P. 12(f). Under that rule, the Court may strike material from a pleading “on
its own” or “on motion made by a party either before responding to the pleading or,
if a response is not allowed, within 21 days after being served with the
pleading.” Fed. R. Civ. P. 12(f); see also Senne v. Vill. of Palatine, 2013 WL 68703, at
*1 (N.D. Ill. Jan. 4, 2013) (striking punitive damages against a municipality).
Accordingly, the punitive damages allegations against the Village of Broadview are
stricken.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss (R. 14) is granted as
to Count I but denied as to Count II. The Court also dismisses the Village Board of
Trustees as duplicative of the Village of Broadview. Finally, the Court strikes the
punitive damages allegations against the Village of Broadview. If Plaintiff believes
he can cure the deficiencies identified in this opinion, he may file a motion for leave
to file an amended complaint on or before July 10, 2018. The motion should attach a
redlined comparison between the current complaint and the proposed amended
complaint, and it should be supported by a brief of no more than five pages
describing how the proposed amended complaint cures the deficiencies in the
current complaint. Defendants are not to file a response unless directed to do so by
the Court.

ENTERED:
Ahnias MW Butler.
Dated: June 19, 2018 □□□ nanan nanan nanan □
Honorable Thomas M. Durkin
United States District Judge

10

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10138716. Public record. Not legal advice.