Astrauskas v. City of Collinsville

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

PHILIP ASTRAUSKAS, SR., MARY

ASTRAUSKAS, and PHILIP

ASTRAUSKAS, JR.,

Plaintiffs,

v. Case No. 18-CV-01284-NJR

CITY OF COLLINSVILLE, a Municipal

Corporation, DONNA GREEN, DAVID

JEROME, DANIEL DAVIS, JEFF

STEHMAN, CHERYL BROMBOLICH,

MITCHELL BAIR, DAVID BOOKLESS,

RANDY TEDESCO, and JOHN

MILLER,

Defendants.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

Pending before the Court is a Motion for Summary Judgment (“MSJ”) and

memorandum in support filed by Defendants City of Collinsville, Illinois

(“Collinsville”), Donna Green, David Jerome, Daniel Davis, Jeff Stehman, Cheryl

Brombolich, Mitchell Bair, David Bookless, and Randy Tedesco (“Defendants”)

(Docs. 65, 66).1 Also pending before the Court is a Cross Motion for Summary Judgment

(“CMSJ”) and memorandum in support filed by Plaintiffs Philip Astrauskas, Sr., Mary

Astrauskas, and Philip Astrauskas, Jr. (“Plaintiffs”) (Docs. 68, 69). For the reasons set

forth below, the Court grants the MSJ. As a result, the Court denies the CMSJ.

1 Defendant John Miller, the Mayor of Collinsville, did not individually participate in the filings by the

other Defendants discussed in this Order.

FACTUAL & PROCEDURAL BACKGROUND

This action involves a challenge to a residential building inspection and

subsequent civil suit in the Third Judicial Circuit in Madison County, Illinois, brought

by Collinsville alleging code violations as a result of a building inspection. Plaintiffs

own a property located at 2106 Vandalia Street in Collinsville (“the property”) that

consists of multi-family residential units (Docs. 67, 70, 70-1, 70-3). Plaintiffs assert that

Collinsville and the other Defendants, who are involved with building and zoning in

the City, violated their civil rights when Defendant Daniel Davis trespassed and

searched the property. The following series of events and facts provides the relevant

context for deciding the motions before the Court.

In April 2017, Davis, the Chief Building Official for Collinsville at the time,

performed an inspection of the property without notice to Plaintiffs (Docs. 41; 42; 70-6,

p. 6). After the inspection, Davis completed the property inspection form, which states,

“[b]elow are the findings of a visual walk through inspection of the exterior and interior

of the property identified above” (Doc. 70-3, p. 17). On the form, Davis marked the areas

of the building that he inspected and the violations specific to those areas (Id.).

Specifically, Davis marked that he inspected the roof, gutters/downspouts, chimney,

porch/deck, exterior walls, foundation, windows, exterior doors, and electrical wiring

(Id.). Davis noted issues with the gutters/downspouts, porch/deck, exterior walls,

windows, exterior doors, and electrical wiring (Id.). Pictures submitted by Plaintiffs and

taken by Davis show the areas of the property he inspected that exhibit alleged violations

(Doc. 73-1, pp. 8-15).2 Astrauskas Sr. stated that he did not think Davis entered the

interior of the building while he performed the inspection, and no picture submitted

from that day depicts the interior of the building (Docs. 70-2, p. 30; 73-1, pp. 8-15). None

of the interior areas on the property inspection form were marked as inspected. (Doc. 70-

3, p. 17).

Collinsville filed suit against Plaintiffs in Madison County Court, citing a zoning

violation, building code violations, and failure to obtain a landlord business license.

(Doc. 70-3, pp. 23-29). Plaintiffs then initiated this suit in June 2018 under 42 U.S.C. 1983,

alleging that Defendants violated their Fourth, Fifth, and Fourteenth Amendment rights

to the use and enjoyment of the property and the right of notice of inspection (Docs. 1,

41, p. 6). Plaintiffs claim that Davis, “at the instruction of David Bookless, Randy

Tedesco, Mitchell Bair, or other person with final policy making authority of the City,”

entered onto the property without permission for the inspection and did not provide

notice of entry (Doc. 41, pp. 6-7). Plaintiffs further allege that Defendants violated their

Fifth and Fourteenth Amendment rights when they ignored Collinsville Municipal Code

related to administrative procedure for code violations and went straight to state court

with a lawsuit on the violations (Doc. 41, p. 13). Plaintiffs contend that Defendants did

so in order to exact revenge on Astrauskas Sr. for his speeches at City Council meetings

and his campaign activity against members of the Collinsville City Counsel (Doc. 41,

2 Other pictures Plaintiffs included were from a previous inspection on April 4, 2017, related to carbon

monoxide issues in the building.

p.5; Doc. 70-2, pp. 26-27). As relief, Plaintiffs seek compensatory damages, punitive

damages, and attorney fees. (Doc. 41, p. 14).

Defendants filed their MSJ in January 2020. Regarding Plaintiffs’ Fourth

Amendment claim, Defendants assert that Davis never entered the property and, even

if he did, he only stayed in the exterior common areas (Doc. 66, p. 7). Defendants

maintain that Plaintiffs provided no evidence that Davis entered any locked areas or

curtilage of the property (Id.). In their response to Defendants’ MSJ, Plaintiffs point to

the property inspection form, stating that the form references violations that require

close range inspection and entry onto the property (Doc. 73, p. 7).

Concerning Plaintiffs’ Fifth Amendment claim, Defendants assert that Plaintiffs

have failed to establish that a particular municipal policy caused an injury, and the only

evidence in the record shows that Collinsville’s counsel made the decision to file in state

court, meaning that the record is devoid of personal action (Doc. 66, pp. 10, 12).

Defendants additionally claim that Plaintiffs provided no evidence that the state court

proceeding provided them with less due process than an administrative hearing would

have (Doc. 66, p. 12). Plaintiffs counter, stating that the individual Defendants were

personally involved in the violation investigation, which precipitated the state court suit

(Doc. 73, p. 11). Plaintiffs theorize that the individuals were either acting pursuant to city

policy or had final policy making authority (Id.). Plaintiffs also contend that counsel

could not have initiated suit without Collinsville’s approval or information provided by

the individual Defendants, but acknowledge that they have not been able to obtain

evidence of the scope and degree of decision-making (Doc. 73, pp. 11-12).

Plaintiffs also filed their CMSJ in January 2020, asserting that the undisputed

material facts presented in their response to the MSJ merit summary judgment in their

favor on the Fourth Amendment claim based on the law (Doc. 69). Defendants’

arguments defending against the CMSJ match their arguments from their MSJ.

LEGAL STANDARD

Summary judgment is “the put up or shut up moment in a lawsuit” where a party

lays its proverbial cards on the table, showing what evidence it possesses to convince a

trier of fact to agree with its version of the events. Steen v. Myers, 486 F.3d 1017, 1022 (7th

Cir. 2007) (quoting Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005)

(other citations omitted)). Summary judgment is only appropriate if the movant “shows

that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th

Cir. 2014) (quoting FED. R. CIV. P. 56(a)). That “burden on the moving party may be

discharged by ‘showing’—that is, pointing out to the district court—that there is an

absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477

U.S. 317, 325 (1986).

Once the moving party has set forth the basis for summary judgment, the burden

then shifts to the nonmoving party who must go beyond mere conclusory allegations

and offer specific facts showing that there is a genuine issue of fact for trial. FED. R. CIV.

P. 56(e); see Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990); see also Celotex, 477 U.S.

at 232-24. While the Court must view the evidence and draw all reasonable inferences in

favor of the opposing party, “[i]nferences and opinions must be grounded on more than

flights of fancy, speculations, hunches, intuitions, or rumors[.]” Bennington v. Caterpillar

Inc., 275 F.3d 654, 658 (7th Cir. 2001); Rand v. CF Industries, Inc., 42 F.3d 1139, 1146 (7th

Cir. 1994); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A “court may not assess

the credibility of witnesses, choose between competing inferences or balance the relative

weight of conflicting evidence[.]” Reid v. Neighborhood Assistance Corp. of America, 749

F.3d 581, 586 (7th Cir. 2014) (quoting Abdullahi v. City of Madison, 423 F.3d 763, 769 (7th

Cir. 2005)). A merely cognizable issue of fact is insufficient to deny summary judgment,

and an opposing party must present sufficient evidence to enable a reasonable jury to

render a verdict in its favor. Anderson, 477 U.S. at 251–52; Hobgood v. Illinois Gaming Board,

731 F.3d 635, 643 (7th Cir. 2013). “[A] complete failure of proof concerning an essential

element of the nonmoving party’s case necessarily renders all other facts immaterial.”

Celotex, 477 U.S. at 323.

ANALYSIS

I. Count 1: Fourth Amendment Claim3

A. Applicable Law

The Fourth Amendment to the United States Constitution, made applicable to the

States by the Fourteenth Amendment, provides in relevant part that the “right of the

people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated . . . .” U.S. CONST. amend. IV. A search occurs

if the government trespasses onto constitutionally protected property without a license

3 While Plaintiffs allude to an abridging of Astrauskas Sr.’s First Amendment right to free speech through

the retaliation of the Madison County Court action, Plaintiffs have not asserted an actual claim for this

allegation in the Complaint.

or a warrant. Administrative inspections are searches within the meaning of the Fourth

Amendment. Montville v. Lewis, 87 F.3d 900, 902 (7th Cir. 1996); Camara v. Mun. Ct. of City

and Cty. of S.F., 387 U.S. 523, 540 (1967). As the United States Supreme Court noted in

United States v. Dunn, the concept of curtilage is grounded in English common law and

jurisprudence in the United States federal courts started to develop a Fourth

Amendment protection for curtilage in the early twentieth century. 480 U.S. 294, 300

(1987). Curtilage is “the area outside the home itself but so close to and intimately

connected with the home and the activities that normally go on there that it can

reasonably be considered part of the home” itself for Fourth Amendment purposes.

Siebert v. Severino, 256 F.3d 648, 653–54 (7th Cir. 2001) (internal quotations omitted)

(quoting United States v. Shanks, 97 F.3d 977, 979 (7th Cir. 1996)).

It is well established, though, that Fourth Amendment protections do not apply

to areas or articles not within the individual’s reasonable expectation of privacy. An

individual can invoke the Fourth Amendment’s protections only by satisfying two

prongs, first that a person has exhibited an actual (subjective) expectation of privacy and,

second, that society has accepted the expectation as reasonable. Katz v. United States, 389

U.S. 347, 361 (1967) (Harlan, J., concurring). Things knowingly exposed to the public,

even in a home or office, are not protected by the Fourth Amendment. Id. at 351. For

example, an individual does not have a reasonable expectation of privacy from a police

helicopter flying over his greenhouse, even when he has obscured most of the

greenhouse. Florida v. Riley, 488 U.S. 445, 449 (1989). Nor does a government agent violate

the Fourth Amendment by viewing anything in plain sight “from a public vantage point

where they have a right to be.” Id. at 448-49. Government agents may walk up to any

part of private property that is otherwise open to visitors or delivery people. United

States v. LePage, 477 F.3d 485, 488 (7th Cir. 2007). Furthermore, a party claiming a Fourth

Amendment violation bears the burden of establishing an invasion of the curtilage,

which must be met by including supporting evidence in response to an MSJ. Harney v.

City of Chicago, 702 F.3d 916, 924-25 (7th Cir. 2012).

B. Discussion

Count 1 of Plaintiffs’ Second Amended Complaint alleges that Defendants

violated their Fourth, Fifth, and Fourteenth Amendment rights to the use and enjoyment

of the property and the right of notice of inspection (Doc. 41, p. 6). Plaintiffs claim that

Defendants entered onto the property without permission for the inspection and

without notice of entry (Doc. 41, p. 7). In their response to the MSJ defending the claim,

Plaintiffs point to the inspection form as proof that Davis entered their property (Doc. 73,

p. 8). Both parties agree that Plaintiffs own the property, which consists of multi-family

residential units (Docs. 67, 70). Both parties agree that Davis performed an inspection of

the property that day (Id.). Additionally, Plaintiffs never claim that Davis entered the

interior of the building.

From there, the parties divide on Davis’s outdoor proximity and the law. While

maintaining that Davis never entered the property, Defendants also work to protect

themselves by stating that even if Davis entered the property, his entry did not offend

the Fourth Amendment because he only entered common areas. As Plaintiffs highlight,

Davis inspected the roof, gutters/downspouts, and chimney, all areas that may

necessitate close inspection on the property (Doc. 70-3, p. 17). Despite this, Defendants

bring a salient point to the table. There is no reasonable expectation of privacy for

common areas of a multi-family residential building. See Harney, 702 F.3d at 925.

Furthermore, “a government agent is permitted to enter the curtilage of the home in the

same way that any delivery person or passerby could: the agent may approach any

entrance to the house that is open to visitors (even if it is not the front door) and make

warrantless observations of the exterior.” Davis v. Chalstrom, 595 Fed. App’x 627, 630 (7th

Cir. 2014) (collecting cases). The undisputed material facts and pictures in the record

here establish an understanding of the zone in which Davis operated when he inspected

the property, which was wholly outside of the interior of the building. Thus, there is no

reasonable expectation of privacy for Plaintiffs to rely on and, because there was no

deprivation of a constitutional right, no notice was required. Based on the law applied

to those facts, Count 1 fails.

Furthermore, as Defendants argue, the individually named Defendants are

entitled to qualified immunity for the inspection. Qualified immunity shields

government officials performing discretionary functions from civil litigation. Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). When determining whether a public official is entitled

to qualified immunity in a § 1983 action, courts undertake a two-prong inquiry. Tolan v.

Cotton, 572 U.S. 650, 656 (2014); Borello v. Allison, 446 F.3d 742, 746 (7th Cir. 2006). The

first prong raises the question as to whether the facts show the violation of a

constitutional right (here, the Fourth Amendment). Id. The second prong asks whether

a plaintiff’s constitutional rights were clearly established at the time of the officers’

actions. Id. In this case, that determination depends on whether the state of the law gave

Defendants fair warning that the warrantless search of the property was

unconstitutional. Hope v. Pelzer, 536 U.S. 730, 741 (2002).

A right is clearly established if a “court has upheld the purported right in a case

factually similar to the one under review, or that the alleged misconduct constituted an

obvious violation of a constitutional right.” Wernsing v. Thompson, 423 F.3d 732, 742 (7th

Cir. 2005). As the Supreme Court has explained, “[t]his is not to say that an official action

is protected by qualified immunity unless the very action in question has previously

been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness

must be apparent.” Hope, 536 U.S. at 739 (citations omitted).

The state of the law at the time of the inspection was, as it is today, that the

surrounding property that was common area was not considered curtilage. Consequently,

there could be no apparent unlawfulness associated with the individually named

Defendants’ actions, even if the facts showed a violation of a constitutional right.

Accordingly, Defendants would also be entitled to qualified immunity and their MSJ

with respect to Count 1 is GRANTED. Consequently, Plaintiffs’ CMSJ is DENIED.

II. Count 2: Fifth Amendment Claim

A. Applicable Law

The Fifth Amendment to the United States Constitution, made applicable to the

States by the Fourteenth Amendment, provides in relevant part that “[n]o person shall

be . . . deprived of life, liberty, or property, without due process of law . . . .” U.S. CONST.

amend. V. Property interests “are not created by the Constitution. Rather, they are

created and their dimensions are defined by existing rules or understandings that stem

from an independent source such as state law—rules or understandings that secure

certain benefits and that support claims of entitlement to those benefits.” Bd. of Regents

v. Roth, 408 U.S. 564, 577 (1972). In order to ascertain whether the application of due

process requirements is necessary to a case, courts “look to see if the interest is within

the Fourteenth Amendment’s protection of liberty and property.” Id. at 570–71.

B. Discussion

Count 2 of Plaintiffs’ Second Amended Complaint alleges that Defendants

violated their Fifth and Fourteenth Amendment rights to due process (Doc. 41, p. 13).4

Plaintiffs allege that Defendants ignored Collinsville Municipal Code and went straight

to state court with a lawsuit on the violations (Doc. 41, p. 13). Defendants do not deny

the filing of the state court action absent municipal administrative adjudication.

Plaintiffs contend that Defendants did so to retaliate against Astrauskas Sr. for his

political activity (Doc. 41, p. 5).

A municipality is not liable under § 1983 unless the constitutional violations at

issue are caused by a municipal policy or custom. See Monell v. Dep’t of Social Servs. of

City of N.Y., 436 U.S. 658, 694 (1978). Furthermore, there is no respondeat superior liability

for municipalities under § 1983. Belcher v. Norton, 497 F.3d 742, 754 (7th Cir. 2007). But

even before assessing whether the undisputed material facts lead to Plaintiffs’ claim of

municipal policy or custom that caused their injury, the Court must analyze whether

4 Count 1 in Plaintiffs’ Second Amended Complaint also contains allegations of a Fifth Amendment

violation, presumably because Defendants did not provide notice of the inspection. This section explains

Fifth Amendment guarantees and limitations for the purposes of Count 1 as well.

there is a cognizable constitutional injury here. See Matthews v. City of East St. Louis, 675

F.3d 703, 709 (7th Cir. 2012) (where plaintiff fails to establish a constitutional violation,

Monell claims must also fail). A procedural due process claim requires a two-fold

analysis. First, the court must determine whether the plaintiff was deprived of a

protected interest; second, the court must determine what process is due. Leavell v. Ill.

Dep’t of Natural Res., 600 F.3d 798, 804 (7th Cir. 2010) (citing Pugel v. Bd. of Trustees of

Univ. of Ill., 378 F.3d 659, 662 (7th Cir. 2004)). Due process requires notice and an

opportunity for a hearing before the government may deprive a person of property.

Mathews v. Eldridge, 424 U.S. 319, 348-49 (1976).

In terms of deprivation, Plaintiffs claim that they had a right to the protections of

the Collinsville Municipal Code and a hearing in Collinsville City Court. Despite this

contention, a violation of state law, or even a municipality’s violation of its own codes

or procedures, is not a denial of a federal constitutional right on its own, even if that law

confers a procedural right. Osteen v. Henley, 13 F.3d 221, 225 (7th Cir. 1993); Christian v.

Village of Maywood, 656 F. Supp. 367, 369 (N.D. Ill. 1987) (citing Muckway v. Craft, 789 F.2d

517, 522 (7th Cir. 1986); Albery v. Reddig, 718 F.2d 245, 251 (7th Cir. 1983)). The remedy in

these cases is almost invariably state court. River Park, Inc. v. City of Highland Park, 23

F.3d 164, 165 (7th Cir. 1994); Archie v. City of Racine, 847 F.2d 1211, 1215 (7th Cir. 1988).

The Seventh Circuit has repeatedly held that, to prevail on a procedural due

process claim, a plaintiff must point out a deprivation from a property interest or state-

created liberty interest. Crenshaw v. Baynerd, 180 F.3d 866, 869 (7th Cir. 1999); see also Roth,

408 U.S. at 577, (1972); Ky. Dep’t of Corrs. v. Thompson, 490 U.S. 454, 459–62 (1989). After

all, the Federal Courts are courts of limited jurisdiction and should exercise judicial

restraint when cases do not invoke the powers given by the Constitution or Congress.

See Groves v. U.S., 941 F.3d 315, 323 (7th Cir. 2019) (citing Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 101–02 (1998)). Plaintiffs here have done nothing more than assert the

alleged right to an administrative proceeding under Collinsville Municipal Code. A

nebulous accusation of indiscriminate prosecution does not change this finding. The

mere expectation of receiving a certain process under a code simply does not establish a

protected liberty or property interest. See Crenshaw, 180 F.2d at 869; see also Campbell v.

City of Champaign, 940 F.2d 1111, 1113 (7th Cir.1991); Lim v. Cent. DuPage Hosp., 871 F.2d

644, 648 (7th Cir. 1989).

Even if Plaintiffs were able to establish that they had a protected liberty or

property interest, the claim would still fall short because Plaintiffs received all the

process that was due to them. “The barebones constituents of fair procedures and

therefore due process are . . . notice and an opportunity to be heard.” Smith v. Shettle, 946

F.2d 1250, 1254 (7th Cir.1991) (citing Twining v. New Jersey, 211 U.S. 78, 110–11 (1908)).

Put another way, “[t]he Due Process Clause requires that individuals have an

opportunity to be heard ‘at a meaningful time and in a meaningful manner’ regarding

the deprivation of life, liberty, or property.” Wainscott v. Henry, 315 F.3d 844, 852 (7th

Cir. 2003) (quoting Mathews, 424 U.S. at 333). In this case, Plaintiffs received their due

process rights in the form of the current suit in Madison County Court and they are not

entitled to anything else. Plainly stated, an extra bite at the candied apple is not

appropriate given the claims here. The MSJ with respect to Count 2 is GRANTED.

CONCLUSION

For the reasons set forth above, the Court GRANTS Defendants’ Motion

for Summary Judgment (Doc. 65). Plaintiffs’ Cross Motion for Summary Judgment

(Doc. 68) is DENIED, and this entire action is DISMISSED with prejudice. The Clerk

of Court is DIRECTED to enter judgment accordingly and close this case.

IT IS SO ORDERED.

DATED: September 22, 2020

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

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