# Opposition Brief — Village of Willowbrook v. Olech

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2000
- **Citation:** 528 U.S. 562

## Text

} Bupreme Court, V0.
FILED
o) NOV 10 1999
No. 98-1288 | QFRICE OF THE CLERK
In The
Supreme Court of the United States
-¢

VILLAGE OF WILLOWBROOK, an Illinois municipal
corporation, GARY PRETZER, individually and as
President of the VILLAGE OF WILLOWBROOK, and
PHILIP J. MODAFF, individually and as Director
of Public Services of the VILLAGE OF WILLOWBROOK,

Petitioners,

GRACE OLECH,
Respondent.

+

On Writ Of Certiorari To The
United States Court Of Appeals
For The Seventh Circuit

+
JOINT APPENDIX
+
JoHN R. Wimmer James L. DeEANo
Counsel of Record Counsel of Record
928 Warren Avenue Norton, MANCINI,
Downers Grove, Illinois ARGENTATI, WEILER
60515 & DeANo
(630) 810-0005 109 North Hale
P.O. Box 846
Wheaton, Illinois
60189-0846
(630) 668-9440
Counsel for Respondent Counsel for Petitioners

Petition For Certiorari Filed February 9, 1999
Certiorari Granted September 28, 1999

oe
=

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS OF JOINT APPENDIX

Plaintiff's Amended Complaint
Defendants’ Motion to Dismiss Amended Complaint

ee. Memorandum of Law in Support of
to Dismiss

Plaintiff's Response to Defendants’ Motion to Dismiss
the Amended Complaint

Defendants’ Reply
Memorandum Opinion and Order of the District
Court for the Northern District of Illinois

Minute Order granting Defendants’ Motion to Dis-
miss

Judgment in a Civil Case dismissing the case in its

—

Relevant Docket Entries

VILLAGE OF WILLOWBROOK, et. al. v. GRACE OLECH

Date

7/11/97
9/3/97

9/3/97
9/10/97
10/8/97
10/28/97
10/28/97
11/21/97

11/26/97

12/19/97

1/9/98

No. 98-1288
Proceedings

United States District Court, N.D. Illinois
Case No. 97 C 4935

Complaint, including jury demand, filed.

Motion to Dismiss for Failure to State a Cause
of Action filed.

Memorandum of Law in Support of Motion to
Dismiss filed.

Order entered giving Plaintiff to October 8,
1997, to file an Amended Complaint.
Amended Complaint, including jury demand,
filed.

Motion to Dismiss Plaintiff‘s Amended Com-
plaint filed.

Memorandum of Law in Support of Motion to
Dismiss filed.

Motion by Defendants for leave to substitute
as attorney of record filed.

Order entered granting leave to substitute as
attorney of record. James DeAno and Christy
Benton granted leave to file appearance as
counsel of record for Defendants.

Plaintiff's Response to Defendants’ Motion to
Dismiss the Amended Complaint filed.

Reply filed.

4/13/98

4/13/98

4/13/98

5/13/98

7/29/98
8/27/98
9/11/98

10/8/98
11/12/98

2/9/99
5/26/99

9/28/99

Memorandum Opinion and Order granting
Defendants’ Motion to Dismiss.

Minute Order entered granting Defendants’
Motion to Dismiss.

Judgment in a Civil Case issued dismissing
action in its entirety.

Notice of Appeal by Grace Olech filed.

United States Court of Appeals for the
Seventh Circuit
Case No. 98-2235

Brief of Plaintiff-Appellant Grace Olech filed.
Brief of the Defendants-Appellees filed.

Reply Brief of Plaintiff-Appellant Grace Olech
filed.

Oral argument.

Opinion reversing Judgment and Order grant-
ing Defendants’ Motion to Dismiss.

Supreme Court of the United States
October Term, 1998
Case No. 98-1288

Petition for a Writ of Certiorari filed.

Respondent's Brief in Opposition to the Peti-
tion for a Writ of Certiorari filed.

Order granting Petition for a Writ of Cer-
tiorari.

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GRACE OLECH,

Plaintiff,

No. 97 C 4935
Judge Marovich
-Vs-

VILLAGE OF
WILLOWBROOK, an
Illinois municipal
corporation, GARY
PRETZER, individually

)

)

)

) Magistrate Judge Keys

)

)

)

)

)
and as President of

)

)

)

)

)

)

)

)

Plaintiff Demands
Trial By Jury

Defendant VILLAGE OF
WILLOWBROOK, and
PHILIP J. MODAFF,
individually and as
Director of Public Services
of Defendant VILLAGE
OF WILLOWBROOK,

Defendants.

AMENDED COMPLAINT
(42 U.S.C. § 1983)
(Received Oct. 08, 1997)

NOW COMES Plaintiff GRACE OLECH, by and
through her attorney, JOHN R. WIMMER, and complain-
ing of the Defendants, VILLAGE OF WILLOWBROOK, an
Illinois municipal corporation, GARY PRETZER, individ-
ually and as President of Defendant VILLAGE OF WIL-
LOWBROOK, and PHILIP J. MODAFF, individually and
as Director of Public Services of Defendant VILLAGE OF
WILLOWBROOK, alleges and states as follows:

eS ERE ee

a:

1. That Plaintiff GRACE OLECH has brought this
action to redress the violation of her rights under the
Equal Protection Clause of the Fourteenth Amendment to
the United States constitution.

2. That jurisdiction over this action has been con-
ferred upon this Court under 28 U.S.C. § 1331 and § 1334,
and 42 U.S.C. § 1983.

3. That Plaintiff GRACE OLECH is, and at all times
hereinmentioned was, a citizen of the United States and a
resident of Willowbrook, DuPage County, Illinois, and
Plaintiff GRACE OLECH is the mother of Phyllis S. Zim-
mer who is mentioned hereinafter.

4. That Defendant VILLAGE OF WILLOWBROOK
is, and at all times hereinmentioned was, a municipal
corporation organized and existing under and by virtue
of the laws of the State of Illinois.

5. That Defendant GARY PRETZER is an individual
who is President of Defendant VILLAGE OF WIL-
LOWBROOK and was President of Defendant VILLAGE
OF WILLOWBROOK during the time when Plaintiff
GRACE OLECH was attempting to have her home
hooked up to the municipal water supply system of
Defendant VILLAGE OF WILLOWBROOK.

6. That Defendant PHILIP J. MODAFF is an individ-
ual who was Director of Public Services of Defendant
VILLAGE OF WILLOWBROOK during the time when
Plaintiff GRACE OLECH was attempting to have her
home hooked up to the municipal water supply system of
Defendant VILLAGE OF WILLOWBROOK.

7. That on August 8, 1989, Plaintiff GRACE OLECH
and her since deceased husband, Thaddeus Olech, along
with Howard Brinkman, and Rodney C. Zimmer and
Phyllis S. Zimmer, and others filed a lawsuit against
Defendant VILLAGE OF WILLOWBROOK and others in
the Circuit Court of the Eighteenth Judicial Circuit,
DuPage County, Illinois, Case No. 89 L 1517 (hereinafter
“the state court lawsuit”), in which the plaintiffs sought
money damages from Defendant VILLAGE OF WIL-
LOWBROOK and others as a result of the flooding of the
plaintiffs’ property, including what is hereinafter referred
to as the Olech property, by stormwater.

8. That Howard Brinkman’s claims in the state court
case were dismissed for want of prosecution on April 1,
1991.

9. That the claim of Plaintiff GRACE OLECH and
Thaddeus Olech against Defendant VILLAGE OF WIL-
LOWBROOK in the state court lawsuit was tried to a jury
which, on February 11, 1997, returned a verdict in favor
of Plaintiff GRACE OLECH, individually and as special
administrator of the estate of Thaddeus Olech, and
against Defendant VILLAGE OF WILLOWBROOK in the
amount of $20,000.00, and judgment was entered on that
verdict.

10. That the claim of Rodney C. Zimmer and Phyllis
S. Zimmer against Defendant VILLAGE OF WIL-
LOWBROOK in the state court lawsuit was tried to a jury
which, on February 11, 1997, returned a verdict in favor
of Rodney C. Zimmer and Phyllis S. Zimmer and against
Defendant VILLAGE OF WILLOWBROOK in the amount
of $135,000.00, and judgment was entered on that verdict.

11. That the state court lawsuit against Defendant
VILLAGE OF WILLOWBROOK, which was ultimately
determined to be meritorious, was the subject of substan-
tial coverage in the local press, was bitterly contested by
Defendant VILLAGE OF WILLOWBROOK, and gener-
ated substantial ill will on the part of Defendant VIL-
LAGE OF WILLOWBROOK and its officers and
employees, including PHILIP J. MODAFF and, on infor-
mation and belief, Defendant GARY PRETZER toward
the plaintiffs in the state court lawsuit.

12. That, on information and belief, said ill will
resulted from, among other things, the coverage of the
state court lawsuit in the local press which made Defen-
dant VILLAGE OF WILLOWBROOK and its officers and
employees look bad; the erroneous belief on the part of
officers and employees of Defendant VILLAGE OF WIL-
LOWBROOK that the state court lawsuit was frivolous
and meritless; and the fact that, prior to the filing of the
state court lawsuit, Plaintiff GRACE OLECH and Thad-
deus Olech, and Howard Brinkman had refused to grant
certain drainage easements for a stormwater drainage
project favored by Defendant VILLAGE OF WIL-

LOWBROOK.

13. That, from a time long prior to the filing of the
state court lawsuit and until the death of Thaddeus Olech
on or about November 24, 1996, Plaintiff GRACE OL” °H
and Thaddeus Olech resided in a single-family home on,
and were the joint owners of, certain property commonly
known as 6440 Tennessee Avenue, Willowbrook, Illinois
60514 (hereinafter referred to as “the Olech property”)
and legally described as follows:

a ee oe

7

“The East half of the North half of the South half
of the Southwest quarter of the Northeast quar-
ter of the Northeast quarter of Section 22, Town-
ship 38 North, Range 11, East of the Third
Principal Meridian in DuPage County, Illinois.”

14. That, since the death of Thaddeus Olech, Plain-
tiff GRACE OLECH has been the sole owner of the Olech
property and has continued to reside thereon.

15. That in the spring of 1995 the private well on the
Olech property, which had theretofore provided potable

water for the Olech home, broke down and was beyond
repair.

16. That Plaintiff GRACE OLECH and Thaddeus
Olech then and there implemented a temporary solution
to the problem by hooking up to the well of their neigh-
bors to the south on Tennessee Avenue, Rodney C. Zim-
mer and Phyllis S. Zimmer, via an overground hose.

17. That at that time the water main of Defendant
VILLAGE OF WILLOWBROOK on Tennessee Avenue
extended approximately as far south as the northern
boundary of the property of Howard Brinkman, the

neighbor to the north of Plaintiff GRACE OLECH and
Thaddeus Olech.

18. That by the spring of 1995 Defendant VILLAGE
OF WILLOWBROOK had developed a plan which was to
be implemented within two years of the spring of 1995
and which was going to require all of the homeowners on
Tennessee Avenue who were not hooked up to the munic-
ipal water supply system of Defendant VILLAGE OF
WILLOWBROOK to hook up to the municipal water sup-
ply system of Defendant VILLAGE OF WILLOWBROOK.

19. That on or about May 23, 1995, and while the
state court lawsuit was pending, Plaintiff GRACE OLECH
and Thaddeus Olech, along with Howard Brinkman, and
Rodney C. Zimmer and Phyllis S. Zimmer, made a
request to Defendant VILLAGE OF WILLOWBROOK that
their homes be hooked up right away to the municipal
water supply system of Defendant VILLAGE OF WIL-
LOWBROOK, and at or about that time Defendant PHI-
LIP J. MODAFF was informed that the well on the Olech
property had broken down and that the Olech home was
obtaining potable water from the Zimmers’ well via an
overground hose, a temporary solution which would not
work in the winter when the temperature fell below
freezing.

20. That, as required by law, Defendant VILLAGE
OF WILLOWBROOK undertook to extend the water main
and hook up the homes as requested, conditioned on the
payment by the owners of each parcel of property
involved of one-third of the estimated cost of the project.

21. That on or about July 11, 1995, Plaintiff GRACE
OLECH and Thaddeus Olech paid to Defendant VIL-
LAGE OF WILLOWBROOK $7,012.67, representing their
share of the estimated cost of the project, and by July 12,
1995, Defendant VILLAGE OF WILLOWBROOK had
received the required payments from Howard Brinkman,
and Rodney C. Zimmer and Phyllis S. Zimmer.

22. That the portion of Tennessee Avenue adjacent
to the property of Howard Brinkman, to the Olech prop-
erty, and to the property of Rodney C. Zimmer and
Phyllis S. Zimmer is not, and never has been, a dedicated

public street, and, on information and belief, no ease-
ments had been granted to any governmental body for
the use of any portion of Tennessee Avenue adjacent to
the property of Howard Brinkman, to the Olech property,

and to the property owned by Rodney C. Zimmer and
Phyllis S. Zimmer.

23. That in August of 1995 Defendant PHILIP J.
MODAFF told Phyllis S. Zimmer that Defendant VIL-
LAGE OF WILLOWBROOK would not proceed with the
project unless all of the property owners involved
granted Defendant VILLAGE OF WILLOWBROOK a 33-
foot easement along Tennessee Avenue.

24. That in August of 1995 Defendant GARY PRET-
ZER told Phyllis Zimmer that the 33-foot easement would
be required for the project.

25. That on or about September 21, 1995, Defendant
PHILIP '. MODAFF sent to Plaintiff GRACE OLECH and
Thaddeus Olech and to other property owners involved a
Plat of Easement whereby they and property owners on
the other side of Tennessee Avenue would each dedicate a
33-foot strip of their property along Tennessee Avenue for
public roadway purposes and grant a 33-foot easement
for the construction and maintenance of a roadway, to
include pavement, sidewalks, and public utilities, which
would result in a 66-foot wide dedicated street.

26. That the demands of the Defendants for 33-foot
easements and a 66-foot dedicated public street as a
condition of the extension of the water main were not
consistent with the policy of Defendant VILLAGE OF
WILLOWBROOK regarding other property in the Village

10

of Willowbrook; as was ultimately admitted by the Vil-
lage Attorney, Gerald M. Gorski, in a letter dated Novem-
ber 10, 1995, “[A] fifteen foot (15') easement, along with a
temporary construction easement of five feet (5') on each
side, will be sufficient to install the water main. This is
consistent with Village policy regarding all other prop-
erty in the Village.”

27. That the Defendants treated Plaintiff GRACE
OLECH and Thaddeus Olech, Howard Brinkman, and
Rodney C. Zimmer and Phyllis S. Zimmer differently
from other property owners in the Village of Willowbrook
by demanding the 33-foot easements and the 66-foot ded-
icated street as a condition of the extension of the water
main because of the ill will generated by the state court
lawsuit and in an attempt to control stormwater drainage
in the vicinity to the detriment of Plaintiff GRACE
OLECH and Thaddeus Olech, and other plaintiffs in the
state court lawsuit, by the use of ditches and swales along
Tennessee Avenue.

28. That the decision by the Defendants to treat
Plaintiff GRACE OLECH and Thaddeus Olech, and other
plaintiffs in the state court lawsuit in a manner not con-
sistent with other property owners in the Village of Wil-
lowbrook by demanding the 33-foot easements and the
66-foot street dedication as a condition for the extension
of the water main was irrational and wholly arbitrary,
and, on information and belief, was made by the appro-
priate policy-making official or employee of Defendant
VILLAGE OF WILLOWBROOK.

29. That, because the 33-foot easements and the 66-
foot dedicated street demanded by the Defendants were

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11

not consistent with what the Defendants required in rela-
tion to other property in the Village of Willowbrook,
Plaintiff GRACE OLECH and Thaddeus Olech, and other
property owners involved declined to grant the 33-foot
easements and the 66-foot street dedication.

30. That from the time that Defendant PHILIP J.
MODAFF first demanded the 33-foot easements in
August of 1995 until on or about November 10, 1995, no
progress was made on the project.

31. That on or about November 10, 1995, Defendant
VILLAGE OF WILLOWBROOK withdrew its demand for
the 66-foot street dedication and indicated in a letter
prepared by its attorney that it would proceed with the
water main extension if Defendant VILLAGE OF WIL-
LOWBROOK were granted a 15-foot easement for the
water main and for the related water service lines used to
connect to the homes.

32. That the easement demanded by Defendant VIL-
LAGE OF WILLOWBROOK in its attorney’s letter of
November 10, 1995, was consistent with what was
required by Defendant VILLAGE OF WILLOWBROOK in
relation to other property in the Village of Willowbrook,
and, therefore, Plaintiff GRACE OLECH and Thaddeus
Olech, and other property owners involved, agreed to
grant said easement.

33. That the initial refusal of the Defendants to pro-
ceed with the project unless Defendant VILLAGE OF
WILLOWBROOK was granted 33-foot easements and a
66-foot street dedication resulted in a delay in the project
of approximately three months, a delay which proved
critical as a result of the approaching winter weather.

12

34. That in November of 1995 the overground hose
used by Plaintiff GRACE OLECH and Thaddeus Olech to
connect to their neighbor’s well froze, and, therefore,
Plaintiff GRACE OLECH and Thaddeus Olech were with-
out running water from November of 1995 until the pro-
ject was completed on or about March 19, 1996.

35. That as a proximate result of the three-month
delay in the project caused by the initial refusal of the
Defendants to proceed with the project unless Defendant
VILLAGE OF WILLOWBROOK was granted the 33-foot
easements and the 66-foot street dedication, Plaintiff
GRACE OLECH and Thaddeus Olech, who were 72 and
76 years old, respectively, were without running water
during the winter of 1995-1996, and suffered great incon-
venience, humiliation, and mental and physical distress.

36. That the initial refusal of the Defendants to pro-
ceed with the project unless Defendant VILLAGE OF
WILLOWBROOK was granted the 33-foot easements and
66-foot street dedication and the concomitant and result-
ing delay in the project deprived Plaintiff GRACE
OLECH of her rights under the Equal Protection Clause
of the Fourteenth Amendment to the United States consti-
tution, and the actions and inactions of the Defendants in
that regard were undertaken either with the intent to
deprive Plaintiff GRACE OLECH and others of said
rights, or in reckless disregard of said rights.

37. That the actions and inactions of the Defendants
set forth above were undertaken under color of state law.

itt ih at in ein

13

WHEREFORE, Plaintiff GRACE OLECH prays that
this Court:

(a) Award Plaintiff GRACE OLECH compensatory
damages in an amount to be determined by the trier of
fact;

(b) Award Plaintiff GRACE OLECH punitive dam-
ages in an amount to be determined by the trier of fact;

(c) Award Plaintiff GRACE OLECH her reasonable
attorney’s fees and costs pursuant to 42 U.S.C. § 1988;
and

(d) Grant Plaintiff GRACE OLECH such other and
further relief as is proper and just in the premises.

GRACE OLECH

By: /s/ John R. Wimmer
Attorney for the Plaintiff

JOHN R. WIMMER

Attorney at Law

928 Warren Avenue

Downers Grove, Illinois 60515
(630) 810-0005

Attorney No. 03125600

14

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

GRACE OLECH, )
es

Plaintiff, No. 97 C 4935
vs. )

Judge Marovich
VILLAGE OF WILLOWBROOK,
an Illinois Municipal Corporation,
GARY PRETZER, Individually
and as President of Defendant
VILLAGE OF WILLOWBROOK,
and PHILIP J. MODAFF,
Individually and as Director of
Public Services for Defendant
VILLAGE OF WILLOWBROOK,

Defendants.

MOTION TO DISMISS
PLAINTIFF’S AMENDED COMPLAINT

(Received Oct. 28, 1997)

NOW COME the Defendants, the Village of Wil-
lowbrook, Gary Pretzer and Philip J. Modaff, by their
attorneys, Robert C. Yelton III and Jeffrey Edward Kehl of
Dowd & Dowd, Ltd., and pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, move this court to
dismiss the Plaintiff’s Complaint for failure to state a
cause of action upon which relief may be granted. For
this Motion, the Defendants would show this court as
follows:

1. On October 8, 1997, the Plaintiff caused her one
count Amended Complaint to be filed against the Village

15

of Willowbrook and two of its employees, Gary Pretzer
and Philip J. Modaff. (A copy of the Plaintiff's Amended
Complaint is attached hereto and incorporated herein as
Exhibit A).

2. The Plaintiff seeks relief under 42 U.S.C. §1983
for what the Plaintiff alleges to be a violation of her rights
under the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution. (Plaintiff's
Amended Complaint, {1).

3. As more specifically submitted in the Defen-
dants’ Memorandum of Law in Support of Motion to
Dismiss filed contemporaneously herewith, the Defen-
dants contend that the Plaintiff has failed to state a cause
of action upon which relief may be granted because she
has not alleged discrimination based upon her exercise of
constitutional rights.

WHEREFORE, the Defendants respectfully request
this court to enter an order dismissing the Plaintiff's

Complaint pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure.

Robert C. Yelton III Dowd & Dowd, Ltd.
Jeffrey Edward Kehl

DOWD & "»OWD, LTD. /s/ Jeffrey Edward Kehl
55 West Wacker Drive, Jeffrey Edward Kehl

Suite 1000 One of the Attorneys
Chicago, Illinois 60601 for the Defendants
(312) 704-4400

Counsel for the Defendants

16

EXHIBIT A

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

No. 97 C 4935

Judge Marovich

GRACE OLECH,
Plaintiff,
Magistrate Judge Keys

Plaintiff Demands
Trial By Jury

-Vs-

)

}

)

)
VILLAGE OF )
WILLOWBROOK, an )
Illinois municipal
corporation, GARY )
PRETZER, individually
and as President of )
Defendant VILLAGE OF ?
WILLOWBROOK, and
PHILIP J. MODAFF,
individually and as
Director of Public Services
of Defendant VILLAGE )
OF WILLOWBROOK,
)

Defendants.

AMENDED COMPLAINT
(42 U.S.C. § 1983)

NOW COMES Plaintiff GRACE OLECH, by and
through her attorney, JOHN R. WIMMER, and complain-
ing of the Defendants, VILLAGE OF WILLOWBROOK, an
Illinois municipal corporation, GARY PRETZER, individ-
ually and as President of Defendant VILLAGE OF

17

WILLOWBROOK, and PHILIP J. MODAFF, individually
and as Director of Public Services of Defendant VILLAGE
OF WILLOWBROOK, alleges and states as follows:

1. That Plaintiff GRACE OLECH has brought this
action to redress the violation of her rights under the
Equal Protection Clause of the Fourteenth Amendment to
the United States constitution.

2. That jurisdiction over this action has been con-
ferred upon this Court under 28 U.S.C. § 1331 and § 1334,
and 42 U.S.C. § 1983.

3. That Plaintiff GRACE OLECH is, and at all times
hereinmentioned was, a citizen of the United States and a
resident of Willowbrook, DuPage County, Illinois, and
Plaintiff GRACE OLECH is the mother of Phyllis S. Zim-
mer who is mentioned hereinafter.

4. That Defendant VILLAGE OF WILLOWBROOK
is, and at all times hereinmentioned was, a municipal
corporation organized and existing under and by virtue
of the laws of the State of Illinois.

5. That Defendant GARY PRETZER is an individual
who is President of Defendant VILLAGE OF WIL-
LOWBROOK and was President of Defendant VILLAGE
OF WILLOWBROOK during the time when Plaintiff
GRACE OLECH was attempting to have her home
hooked up to the municipal water supply system of
Defendant VILLAGE OF WILLOWBROOK.

6. That Defendant PHILIP J. MODAFF is an individ-
ual who was Director of Public Services of Defendant

18

VILLAGE OF WILLOWBROOK during the time when
Plaintiff GRACE OLECH was attempting to have her

home hooked up to the municipal water supply system of
Defendant VILLAGE OF WILLOWBROOK.

7. That on August 8, 1989, Plaintiff GRACE OLECH
and her since deceased husband, Thaddeus Olech, along
with Howard Brinkman, and Rodney C. Zimmer and
Phyllis S. Zimmer, and others filed a lawsuit against
Defendant VILLAGE OF WILLOWBROOK and others in
the Circuit Court of the Eighteenth Judicial Circuit,
DuPage County, Illinois, Case No. 89 L 1517 (hereinafter
“the state court lawsuit”), in which the plaintiffs sought
money damages from Defendant VILLAGE OF WIL-
LOWBROOK and others as a result of the flooding of the
plaintiffs’ property, including what is hereinafter referred
to as the Olech property, by stormwater.

8. That Howard Brinkman’s claims in the state court
case were dismissed for want of prosecution on April 1,
1991.

9. That the claim of Plaintiff GRACE OLECH and
Thaddeus Olech against Defendant VILLAGE OF WIL-
LOWBROOK in the state court lawsuit was tried to a jury
which, on February 11, 1997, returned a verdict in favor
of Plaintiff GRACE OLECH, individually and as special
administrator of the estate of Thaddeus Olech, and
against Defendant VILLAGE OF WILLOWBROOK in the
amount of $20,000.00, and judgment was entered on that
verdict.

10. That the claim of Rodney C. Zimmer and Phyllis
S. Zimmer against Defendant VILLAGE OF WIL-
LOWBROOK in the state court lawsuit was tried to a jury

19

which, on February 11, 1997, returned a verdict in favor
of Rodney C. Zimmer and Phyllis S. Zimmer and against
Defendant VILLAGE OF WILLOWBROOK in the amount
of $135,000.00, and judgment was entered on that verdict.

11. That the state court lawsuit against Defendant
VILLAGE OF WILLOWBROOK, which was ultimately
determined to be meritorious, was the subject of substan-
tial coverage in the local press, was bitterly contested by
Defendant VILLAGE OF WILLOWBROOK, and gener-
ated substantial ill will on the part of Defendant VIL-
LAGE OF WILLOWBROOK and its officers and
employees, including PHILIP J. MODAFF and, on infor-
mation and belief, Defendant GARY PRETZER toward
the plaintiffs in the state court lawsuit.

12. That, on information and belief, said ill will
resulted from, among other things, the coverage of the
state court lawsuit in the local press which made Defen-
dant VILLAGE OF WILLOWBROOK and its officers and
employees look bad; the erroneous belief on the part of
officers and employees of Defendant VILLAGE OF WIL-
LOWBROOK that the state court lawsuit was frivolous
and meritless; and the fact that, prior to the filing of the
state court lawsuit, Plaintiff GRACE OLECH and Thad-
deus Olech, and Howard Brinkman had refused to grant
certain drainage easements for a stormwater drainage
project favored by Defendant VILLAGE OF WIL-
LOWBROOK.

13. That, from a time long prior to the filing of the
state court lawsuit and until the death of Thaddeus Olech
on or about November 24, 1996, Plaintiff GRACE OLECH
and Thaddeus Olech resided in a single-family home on,

20

and were the joint owners of, certain property commonly
known as 6440 Tennessee Avenue, Willowbrook, Illinois
60514 (hereinafter referred to as “the Olech property”)
and legally described as follows:

“The East half of the North half of the South half
of the Southwest quarter of the Northeast quar-
ter of the Northeast quarter of Section 22, Town-
ship 38 North, Range 11, East of the Third
Principal Meridian in DuPage County, Illinois.”

14. That, since the death of Thaddeus Olech, Plain-
tiff GRACE OLECH has been the sole owner of the Olech
property and has continued to reside thereon.

15. That in the spring of 1995 the private well on the
Olech property, which had theretofore provided potable
water for the Olech home, broke down and was beyond
repair.

16. That Plaintiff GRACE OLECH and Thaddeus
Olech then and there implemented a temporary solution
to the problem by hooking up to the well of their neigh-
bors to the south on Tennessee Avenue, Rodney C. Zim-
mer and Phyllis S. Zimmer, via an overground hose.

17. That at that time the water main of Defendant
VILLAGE OF WILLOWBROOK on Tennessee Avenue
extended approximately as far south as the northern
boundary of the property of Howard Brinkman, the
neighbor to the north of Plaintiff GRACE OLECH and
Thaddeus Olech.

18. That by the spring of 1995 Defendant VILLAGE
OF WILLOWBROOK had developed a plan which was to
be implemented within two years of the spring of 1995
and which was going to require all of the homeowners on

21

Tennessee Avenue who were not hooked up to the munic-
ipal water supply system of Defendant VILLAGE OF
WILLOWBROOK to hook up to the municipal water sup-
ply system of Defendant VILLAGE OF WILLOWBROOK.

19. That on or about May 23, 1995, and while the
state court lawsuit was pending, Plaintiff GRACE OLECH
and Thaddeus Olech, along with Howard Brinkman, and
Rodney C. Zimmer and Phyllis S. Zimmer, made a
request to Defendant VILLAGE OF WILLOWBROOK that
their homes be hooked up right away to the municipal
water supply system of Defendant VILLAGE OF WIL-
LOWBROOK, and at or about that time Defendant PHI-
LIP J. MODAFF was informed that the well on the Olech
property had broken down and that the Olech home was
obtaining potable water from the Zimmers’ well via an
overground hose, a temporary solution which would not
work in the winter when the temperature fell below
freezing.

20. That, as required by law, Defendant VILLAGE
OF WILLOWBROOK undertook to extend the water main
and hook up the homes as requested, conditioned on the
payment by the owners of each parcel of property
involved of one-third of the estimated cost of the project.

21. That on or about July 11, 1995, Plaintiff GRACE
OLECH and Thaddeus Olech paid to Defendant VIL-
LAGE OF WILLOWBROOK $7,012.67, representing their
share of the estimated cost of the project, and by July 12,
1995, Defendant VILLAGE OF WILLOWBROOK had
received the required payments from Howard Brinkman,
and Rodney C. Zimmer and Phyllis S. Zimmer.

22

22. That the portion of Tennessee Avenue adjacent
to the property of Howard Brinkman, to the Olech prop-
erty, and to the property of Rodney C. Zimmer and
Phyllis S. Zimmer is not, and never has been, a dedicated
public street, and, on information and belief, no ease-
ments had been granted to any governmental body for
the use of any portion of Tennessee Avenue adjacent to
the property of Howard Brinkman, to the Olech property,
and to the property owned by Rodney C. Zimmer and
Phyllis S. Zimmer.

23. That in August of 1995 Defendant PHILIP J.
MODAFF told Phyllis S. Zimmer that Defendant VIL-
LAGE OF WILLOWBROOK would not proceed with the
project unless all of the property owners involved
granted Defendant VILLAGE OF WILLOWBROOK a 33-
foot easement along Tennessee Avenue.

24. That in August of 1995 Defendant GARY PRET-
ZER told Phyllis Zimmer that the 33-foot easement would
be required for the project.

25. That on or about September 21, 1995, Defendant
PHILIP J. MODAFF sent to Plaintiff GRACE OLECH and
Thaddeus Olech and to other property owners involved a
Plat of Easement whereby they and property owners on
the other side of Tennessee Avenue would each dedicate a
33-foot strip of their property along Tennessee Avenue for
public roadway purposes and grant a 33-foot easement
for the construction and maintenance of a roadway, to
include pavement, sidewalks, and public utilities, which
would result in a 66-foot wide dedicated street.

26. That the demands of the Defendants for 33-foot
easements and a 66-foot dedicated public street as a

23

condition of the extension of the water main were not
consistent with the policy of Defendant VILLAGE OF
WILLOWBROOK regarding other property in the Village
of Willowbrook; as was ultimately admitted by the Vil-
lage Attorney, Gerald M. Gorski, in a letter dated Novem-
ber 10, 1995, “[A] fifteen foot (15') easement, along with a
temporary construction easement of five feet (5') on each
side, will be sufficient to install the water main. This is
consistent with Village policy regarding all other prop-
erty in the Village.”

27. That the Defendants treated Plaintiff GRACE
OLECH and Thaddeus Olech, Howard Brinkman, and
Rodney C. Zimmer and Phyllis S. Zimmer differently
from other property owners in the Village of Willowbrook
by demanding the 33-foot easements and the 66-foot ded-
icated street as a condition of the extension of the water
main because of the ill will generated by the state court
lawsuit and in an attempt to control stormwater drainage
in the vicinity to the detriment of Plaintiff GRACE
OLECH and Thaddeus Olech, and other plaintiffs in the
state court lawsuit, by the use of ditches and swales along
Tennessee Avenue.

28. That the decision by the Defendants to treat
Plaintiff GRACE OLECH and Thaddeus Olech, and other
plaintiffs in the state court lawsuit in a manner not con-
sistent with other property owners in the Village of Wil-
lowbrook by demanding the 33-foot easements and the
66-foot street dedication as a condition for the extension
of the water main was irrational and wholly arbitrary,
and, on information and belief, was made by the appro-
priate policy-making official or employee of Defendant
VILLAGE OF WILLOWBROOK.

24

29. That, because the 33-foot easements and the 66-
foot dedicated street demanded by the Defendants were
not consistent with what the Defendants required in rela-
tion to other property in the Village of Willowbrook,
Plaintiff GRACE OLECH and Thaddeus Olech, and other
property owners involved declined to grant the 33-foot
easements and the 66-foot street dedication.

30. That from the time that Defendant PHILIP J.
MODAFF first demanded the 33-foot easements in
August of 1995 until on or about November 10, 1995, no
progress was made on the project.

31. That on or about November 10, 1995, Defendant
VILLAGE OF WILLOWBROOK withdrew its demand for
the 66-foot street dedication and indicated in a letter
prepared by its attorney that it would proceed with the
water main extension if Defendant VILLAGE OF WIL-
LOWBROOK were granted a 15-foot easement for the
water main and for the related water service lines used to
connect to the homes.

32. That the easement demanded by Defendant VIL-
LAGE OF WILLOWBROOK in its attorney’s letter of
November 10, 1995, was consistent with what was
required by Defendant VILLAGE OF WILLOWBROOK in
relation to other property in the Village of Willowbrook,
and, therefore, Plaintiff GRACE OLECH and Thaddeus
Olech, and other property owners involved, agreed to
grant said easement.

33. That the initial refusal of the Defendants to pro-
ceed with the project unless Defendant VILLAGE OF
WILLOWBROOK was granted 33-foot easements and a
66-foot street dedication resulted in a delay in the project

25

of approximately three months, a delay which proved
critical as a result of the approaching winter weather.

34. That in November of 1995 the overground hose
used by Plaintiff GRACE OLECH and Thaddeus Olech to
connect to their neighbor’s well froze, and, therefore,
Plaintiff GRACE OLECH and Thaddeus Olech were with-
out running water from November of 1995 until the pro-
ject was completed on or about March 19, 1996.

35. That as a proximate result of the three-month
delay in the project caused by the initial refusal of the
Defendants to proceed with the project unless Defendant
VILLAGE OF WILLOWBROOK was granted the 33-foot
easements and the 66-foot street dedication, Plaintiff
GRACE OLECH and Thaddeus Olech, who were 72 and
76 years old, respectively, were without running water
during the winter of 1995-1996, and suffered great incon-
venience, humiliation, and mental and physical distress.

36. That the initial refusal of the Defendants to pro-
ceed with the project unless Defendant VILLAGE OF
WILLOWBROOK was granted the 33-foot easements and
66-foot street dedication and the concomitant and result-
ing delay in the project deprived Plaintiff GRACE
OLECH of her rights under the Equal Protection Clause
of the Fourteenth Amendment to the United States consti-
tution, and the actions and inactions of the Defendants in
that regard were undertaken either with the intent to
deprive Plaintiff GRACE OLECH and others of said
rights, or in reckless disregard of said rights.

37. That the actions and inactions of the Defendants
set forth above were undertaken under color of state law.

26

WHEREFORE, Plaintiff GRACE OLECH prays that
this Court:

(a) Award Plaintiff GRACE OLECH compensatory
damages in an amount to be determined by the trier of
fact;

(b) Award Plaintiff GRACE OLECH punitive dam-
ages in an amount to be determined by the trier of fact;

(c) Award Plaintiff GRACE OLECH her reasonable
attorney’s fees and costs pursuant to 42 U.S.C. § 1988;
and

(d) Grant Plaintiff GRACE OLECH such other and
further relief as is proper and just in the premises.

GRACE OLECH

By: /s/ John R. Wimmer
Attorney for the Plaintiff

JOHN R. WIMMER

Attorney at Law

928 Warren Avenue

Downers Grove, Illinois 60515
(630) 810-0005

Attorney No. 03125600

27

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

GRACE OLECH, )
me )
Plaintiff, ) NO. 97 C 4935
vs. Judge Marovich
VILLAGE OF

WILLOWBROOK, an
Illinois Municipal
Corporation, GARY
PRETZER, Individually
and as President of
Defendant VILLAGE OF
WILLOWBROOK, and
PHILIP J. MODAFF,
Individually and as
Director of Public
Services for Defendant
VILLAGE OF
WILLOWBROOK,

Defendants.

le ee ee i ee ee i ee ee

MEMORANDUM OF LAW IN SUPPORT OF
MOTION TO DISMISS

(Received Oct. 28, 1997)

NOW COME the Defendants, the Village of Wil-
lowbrook, Gary Pretzer, and Philip J. Modaff, by their
attorneys, Robert C. Yelton III and Jeffrey Edward Kehl of
Dowd & Dowd, Ltd., and submit the following matters
for the court’s consideration in ruling on the Defendants’
Motion to Dismiss the Plaintiff’s Amended Complaint.

28

Preface

The Plaintiff’s Amended Complaint seeks relief
under 42 U.S.C. §1983 for what the F.aintiff perceives to
be a violation of her rights under the Equal Protection
Clause of the Fourteenth Amendment to the United States
Constitution. The Defendants have filed a Motion to Dis-
miss because the Amended Complaint fails to state a
cause of action upon which relief may be granted. As will
be demonstrated below, the facts alleged by the Plaintiff
do not support the conclusion that the Defendants vio-
lated her right to equal protection under the laws of this
State. As such, no remedy is available to the Plaintiff
under 42 U.S.C. §1983.

Standard of Review

In considering a Motion to Dismiss, this court is
obligated to view all factual allegations in the light most
favorable to the Plaintiff. A motion to dismiss will not be
granted unless it appears from the complaint that the
Plaintiff can prove no set of facts to support her claims
that would entitle her to relief. Conley v. Gibson, 355 U.S.
41, 45-46 (1957); Rutan v. Republican Party of Illinois, 868
F.2d 943, 954 (7th Cir. 1989). To this end, all well-pleaded
facts are taken as true. City of Milwaukee v. Saxbe, 546 F.2d
693, 704 (7th Cir. 1976).

This does not mean, however, that extensive factual
allegations or even a factual dispute will immunize a
complaint from dismissal under Rule 12(b)(6). Rather,
even with all facts being accepted by the court, the Plain-
tiff must still present a cause of action as a matter of law.

29

Mitchell v. Archibald & Kendall, Inc., 573 F.2d 429, 433 (7th
Cir. 1978).

More importantly, this court is not “to ignore any
facts set forth in the complaint that undermine the plain-
tiff’s claim or to assign any weight to unsupported con-
clusions of law.” D’City National Bank v. Checker, Simon &
Rosner, 32 F.3d 277, 281 (7th Cir. 1994) (quoting Dimming v.
Wahl, 983 F.2d 86, 87 (7th Cir. 1993).

Factual Background

The Amended Complaint alleges that prior to the
Spring of 1995, the Village of Willowbrook developed a
plan under which all houses along Tennessee Avenue in
Willowbrook were to be hooked up to the Village’s water
system. The plan was to be implemented within two
years of the Spring of 1995. (Amended Complaint, { 18).
As part of this two-year plan, homeowners could be
connected to the Village water system only if they paid
one-third of the total cost for the connection. (Amended
Complaint, { 20). In addition, homeowners on both sides
of Tennessee Avenue would be required to grant a 33 foot
easement to the Village. (Amended Complaint, { 25).

According to the Plaintiff, in the Spring of 1995, the
private well servicing her residence at 6440 Tennessee
Avenue in Willowbrook, Illinois broke down. (Amended
Complaint, { 17). In order to have water available in her
house, the Plaintiff had a garden hose run from her
neighbor’s house to hers. (Amended Complaint, 16).

30

On May 23, 1995, the Plaintiff and her adjoining
neighbors, the Zimmers and the Brinkmans, made a writ-
ten request to the Village to have their residences con-
nected to the Village’s water system “right away.”
(Amended Complaint, { 19). Nearly two months later, on
July 11, 1995, the Plaintiff paid the Village her share of
the cost for the proposed connection under the two-year
plan. (Amended Complaint, { 21). The Plaintiff's adjoin-
ing neighbors, the Brinkmans and the Zimmers paid
shortly thereafter. (Amended Complaint, { 21). The Plain-
tiff makes no mention of when the homeowners on the
other side of Tennessee Avenue paid their shares, if ever.

The Plaintiff claims that notice of the proposed 33
foot easement was not given to her neighbor until August
1995. (Amended Complaint, {{ 23-24). Written notice was
sent to the Plaintiff in September of that year. (Amended
Complaint, { 25). In any event, the Plaintiff alleges that
the demand for a 33 foot easement was not acceptable to
her. As such, she and some of the other property owners
refused to grant the Village the requested easement.
(Amended Complaint, { 29).

Subsequently, on November 10, 1995, the Village sent
a letter to the Plaintiff which apparently indicated that a
street dedication was not necessary to complete the job
but that a temporary construction easement and a perma-
nent easement of fifteen feet would be required. Accord-
ing to the Amended Complaint, a letter from the Village
Attorney indicated that a 15 foot easement would be
consistent with Village policy regarding all other prop-
erty in the Village. (Amended Complaint, { 26).

31

The Plaintiff alleges that because the fifteen foot
easement was consistent with requirements for other
properties in the Village, she and other property owners
agreed to grant the required easement. The Plaintiff does
not allege that all affected property owners granted the
easement, or if so, when. (Amended Complaint, { 32).

In November, 1995 the hose running from to [sic] the
Plaintiff's house broke, leaving her with no running
water until the two-year project was completed on March
19, 1996. (Amended Complaint, { 34). The Plaintiff does
not explain why a new hose was not implemented, why
she never had her well fixed, or how the lack of running
water in late 1995 differed from her predicament in the
Spring of 1995.

In any event, the Plaintiff claims that “as a proximate
result of the three-month delay in the project caused by
the initial refusal of the Defendants to proceed with the
project unless [the Village] was granted the 33-foot ease-
ment and the 66-foot street dedication, [the Plaintiff was]
without running water during the winter of 1995-1996,
and suffered great inconvenience, humiliation, and men-
tal and physical distress.” (Amended Complaint, { 35).

For her action, the Plaintiff maintains that the initial
refusal to proceed without a 33 foot easement and the
three-month delay before a 15-foot easement was
required deprived her of her rights under the Equal Pro-
tection Clause of the Fourteenth Amendment. (Amended
Complaint, | 36). Specifically, the Plaintiff claims that the
refusal to proceed without a 33-foot easement was
prompted by “ill will” on the part of the Defendants

32

because the Plaintiff, the Zimmers, and Howard Brink-
man had filed a lawsuit against the Village. (Amended
Complaint, {4 11-12). However, as the Plaintiff concedes,
the action brought by Mr. Brinkman had been dismissed
in 1991, and the Plaintiff's own action, viewed as frivo-
lous by the Village in 1995, did not result in a judgment in
favor of the Plaintiff until 1997. (Amended Complaint,

41 7-10).

The Plaintiff does not explain how the alleged “ill
will” harbored by the Village toward the Plaintiff, Zim-
mers, and Mr. Brinkman manifested itself other than by
the requirement that the homeowners grant a 33-foot
easement. The fact that the 33-foot easement was also
required of property owners on the other side of Tennes-
see Avenue, (Amended Complaint, { 25) who had not
sued the Village and for whom there are no allegations of
“ill will” is, as discussed below, most destructive to the
Plaintiff's claim.

Argument

The Plaintiff Fails to Allege a Cause of Action under
§1983 for any Violation of her Rights Under the Equal
Protection Clause of the Fourteenth Amendment.

The Plaintiff seeks to impose §1983 liability on the
Defendants under what has been colloquially known as
“Category Three” discrimination. Within the general
rubric of equal protection law, a plaintiff must show
disparate treatment based on membership in a vulnerable
group, racial or otherwise, City of Cleburne v. Cleburne
Living Center, Inc., 473 U.S. 432, 440-41, 105 S.Ct. 3249,

33

3254-55, 87 L.Ed.2d 313 (1985), or based upon the applica-
tion of laws or policies which make irrational distinc-
tions. Lindsey v. Normet, 405 U.S. 56, 74-79, 92 S.Ct. 862,
874-77, 31 L.Ed.2d 36 (1972). “Category Three” discrimi-
nation, however, occurs where “a powerful public official
picked on a person out of sheer vindictiveness,” and
where there is “an orchestrated campaign of official
harassment” directed at the individual “out of sheer mal-
ice.” Esmail v. Macrane, 53 F.3d 176, 178 (7th Cir. 1995).

The Plaintiff, by including many allegations regard-
ing the state court action she and others brought against
the Village, and by alleging that that lawsuit created “ill
will” on the part of the Defendants, seeks to hawk this
otherwise federally insignificant series of events as a
matter of great constitutional import. The Defendants
submit that this case has no business being in federal
court for two reasons. First, the allegations do not suffi-
ciently plead malice on the part of the Defendants. Sec-
ond, the allegations of the Amended Complaint establish
that the Plaintiff was treated no differently than home-
owners against whom the Village harbored no “ill will.”

1. The Amended Complaint Lacks Sufficient Alle-
gations of Malice on the Part of the Defendants.

As indicated above, “Category Three” discrimination
requires fats [sic] which establish “an orchestrated cam-
paign of official harassment” directed at the individual
“out of sheer malice.” Esmail v. Macrane, 53 F.3d 176, 178
(7th Cir. 1995). All the Plaintiff can muster here is allega-
tions that the Defendants harbored “ill will” against the
Plaintiff because of her prior lawsuit. No facts are set

34

forth that show any “orchestrated campaign” or any ugly
motive approaching “malice.” Unless the Plaintiff can
paint a more evil picture of the Defendants, her action
should be dismissed for failure to state a cause of action
upon which relief may be granted.

2. The Plaintiff Has Pled Herself Out of an Action
By Alleging that Other Homeowners Were
Asked to Grant a 33-Foot Easement.

The Plaintiff claims that her right to equal protection
was violated by the Village because the Village wanted
her to grant a 33-foot easement only because she had filed
a state court action against the Village. This argument is
defeated by the Plaintiff's own allegations.

The Plaintiff has alleged that the Village wanted all
homeowners along both sides of Tennessee Avenue to
grant a 33-foot easement. (Amended Complaint, { 25).
The Plaintiff, the Zimmers, and Mr. Brinkman all lived on
one side of Tennessee Avenue. (Amended Complaint,
{ 17). No one from the other side of Tennessee Avenue is
alleged to have filed a state court action which caused “ill
will” on the part of the Defendants.

Distilled to its finest essence, the Plaintiff's Amended
Complaint states that the Plaintiff and her neighbors were
all required to grant a 33-foot easement, regardless of
whether they had filed a lawsuit against the Village. All
homeowners along Tennessee Avenue were treated iden-
tically. As such, the Plaintiff could not possibly have been
the victim of “sheer malice” or “vindictiveness” on the
part of the Defendants.

35

The Equal Protection Clause cannot be construed as a
means by which the Plaintiff may bring her whining
before this court. Despite having filed a state court action
against the Village, she was treated identice iy with those
individuals who had not. In fact, the Amended Com-
plaint shows that the two-year project was completed (as
far as the Plaintiff was concerned) within a year. While
the Plaintiff may have remained inconvenienced by her
broken well and lack of potable water for longer than she
wanted, this does not amount to a constitutional injury.
As Judge Posner noted, “[t]he concept of equal protection
is trivialized when it is used to subject every decision
made by state or local government to constitutional
review by federal courts.” Indiana State Teachers Assn. v.
Board of School Comm'rs of the City of Indianapolis, 1010 F.3d
1179, 1181 (7th Cir. 1996).

Conclusion

For the foregoing reasons, the Defendants request
this court to grant their Motion to Dismiss the Plaintiff's
Amended Complair..

Dowd & Dowd, Ltd.

/s/ Jeffrey Edward Kehl

lettres Edward Kehl
One of the Attorneys for the
Defendants

Robert C. Yelton III

Jeffrey Edward Kehl

DOWD & DOWD, LTD.

55 West Wacker Drive, Suite 1000

Chicago, Illinois 60601

(312) 704-4400

Counsel for the Defendants

36

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

GRACE OLECH,
Plaintiff,
-VSs-

VILLAGE OF WILLOWBROOK,
an Illinois municipal
corporation, GARY PRETZER,
individually and as President
of Defendant VILLAGE OF
WILLOWBROOK, and PHILIP
J. MODAFF, individually and
as Director of Public Services
of Defendant VILLAGE OF
WILLOWBROOK,

Defendants.

No. 97 C 4935

Judge Marovich

Magistrate Judge
Keys

Nm me ee ee ee ee ee ee ee ee ee”

PLAINTIFF’S RESPONSE TO DEFENDANTS’
MOTION TO DISMISS THE AMENDED COMPLAINT

(Received Dec. 19, 1997)

NOW COMES the Plaintiff, GRACE OLECH, by and
through her attorney, JOHN R. WIMMER, and submits
this response to the Defendants’ motion to dismiss the
amended complaint.

STANDARD OF REVIEW

The Defendants’ motion to dismiss the amended
complaint has been brought under Fed.R.Civ.P. 12(b)(6).
As stated in Carl A. Haas Automobile Imports, Inc. v. Lola
Cars Ltd. (N.D.Ill. 1996), 933 F.Supp. 1381, 1384, “Familiar
Rule 12(b)(6) principles require this Court to accept as

37

true the Complaint’s well-pleaded factual allegations,
together with all reasonable inferences in [plaintiff's]
favor [citation omitted]”; and “[d]Jismissal is appropriate
only if it appears beyond doubt that [plaintiff] can prove
no set of facts, consistent with the Complaint’s allega-
tions that would entitle it to relief [citation omitted].”

STATEMENT OF FACTS

According to the amended complaint, the Plaintiff,
GRACE OLECH (hereinafter sometimes referred to as
“Mrs. Olech”), is a resident of Willowbrook. (Par. 3) On
August 8, 1989, Mrs. Olech and her since deceased hus-
band, Thaddeus Olech, along with Howard Brinkman,
and Rodney C. Zimmer and Phyllis S. Zimmer, and others
filed a lawsuit against Defendant VILLAGE OF WIL-
LOWBROOK (hereinafter sometimes referred to as “Wil-
lowbrook”) and others in the Circuit Court of the
Eighteenth Judicial Circuit, DuPage County, Illinois, Case
No. 89 L 1517 (hereinafter sometimes referred to as “the
state court lawsuit”), in which the plaintiffs sought
money damages from Willowbrook and other defendants
as a result of the flooding of the plaintiffs’ property by
stormwater. (Par. 7) Howard Brinkman’s claims in the
state court lawsuit were dismissed for want of prosecu-
tion on April 1, 1991. (Par. 8) The claim of Mrs. Olech and
her husband against Willowbrook was tried to a jury
which, on February 11, 1997, returned a verdict in favor
of Mrs. Olech, individually and as special administrator
for her husband, in the amount of $20,000.00, and judg-
ment was entered on that verdict. (Par. 9) The claim of
Rodney C. Zimmer and Phyllis S. Zimmer against Wil-
lowbrook was tried to the same jury which, on February

38

11, 1997, returned a verdict in favor of the Zimmers in the
amount of $135,000.00, and judgment was entered on that
verdict. (Par. 10) The state court lawsuit generated sub-
stantial ill will on the part of Willowbrook and its officers
and agents including Defendants GARY PRETZER (here-
inafter sometimes referred to as “Pretzer”) and PHILIP J.
MODAFF (hereinafter sometimes referred to as “Mod-
aff”) against the plaintiffs in that case. (Par. 11) The ill
will resulted from the coverage of the state court lawsuit
in the local press which made Willowbrook and its offi-
cers and employees look bad, from the erroneous belief
that the state court lawsuit was frivolous, and from the
fact that, prior to the filing of the state court lawsuit, Mrs.
Olech and her husband, and Howard Brinkman had
refused to grant certain easements for a stormwater
drainage project favored by Willowbrook. (Par. 12)

In the spring of 1995 the private well on the Olech
property on the west side of Tennessee Avenue broke
down and was beyond repair. (Par. 15) Mrs. Olech and her
husband implemented a temporary solution to the prob-
lem by hooking up to the well of their neighbor’s to the
south on Tennessee Avenue, the Zimmers, via an over-
ground hose. (Par. 16) Mrs. Olech is Phyllis Zimmer’s
mother. (Par. 3)

At that time Willowbrook’s water main extended as
far south as the northern boundary of the property of
Howard Brinkman, the Olech’s neighbor to the north on
Tennessee Avenue. (Par. 17) By the spring of 1995 Wil-
lowbrook had developed a plan (hereinafter sometimes
referred to as “Willowbrook’s 2-year plan”) which was to
be implemented within two years of the spring of 1995,
and which was going to require all of the homeowners on

39

Tennessee Avenue who were not hooked up to Wil-
lowbrook’s municipal water supply system to hook up to
the system. (Par. 18) In Defendants’ memorandum in
support of their motion to dismiss, the Defendants’ make
the following false and misleading statements:

“As part of this two-year plan, homeowners
could be connected to the Village water system
only if they paid one-third of the total cost for
the connection. (Amended Complaint, [Par.] 20).
In addition, homeowners on both sides of Ten-
nessee Avenue would be required to grant a 33
foot easement to the Village.

(Amended Complaint, [Par.] 25).”

(Defendant’s Memorandum, p. 3.)

Actually, those statements do not appear in the amended
complaint. The work that was ultimately done by Wil-
lowbrook was not done pursuant to Willowbrook’s two-
year plan, but rather at the request of the Olechs, the
Zimmers, and Mr. Brinkman for an extension of the water
main “right away.” (Par. 19) The amended complaint does
not allege that the costs paid were assessed or that the
easements were demanded pursuant to Willowbrook’s
2-year plan.

On May 23, 1995, while the state court lawsuit was
pending, the Olechs, the Zimmers, and Howard Brink-
man made a request to Willowbrook that their homes be
hooked up “right away” to the municipal water supply
system. (Par. 19) At that time Modaff was informed that
the well on the Olech property had broken down, and
that the Olech home was obtaining potable water from
the Zimmers’ well via an overground hose, a temporary

40

solution which would not work in the winter when the tem-
perature fell below freezing. (Par. 19) As required by law,
Willowbrook undertook to extend the water main and
hook up the homes as requested, conditioned on the
payment by each of the homeowners, the Olechs, the
Zimmers, and Mr. Brinkman, of one-third of the esti-
mated total cost of the project. (Par. 20) On July 11, 1995,
the Olechs paid Willowbrook $7,012.67, representing their
share of the estimated cost of the project, and by July 12,
1995, Willowbrook had received the required payments
from the Zimmers and Mr. Brinkman. (Par. 21)

In the Defendants’ memorandum in support of their
motion to dismiss, the Defendants state that these
moneys were paid “under the two-year plan,” and that
“[t}]he Plaintiff makes no mention of when the home-
owners on the other side of Tennessee Avenue paid their
shares.” (Defendants’ Memorandum, p. 4.) The Defen-
dants statements are again false and misleading. The
money was not paid, nor was the work done “under the
two-year plan.” The work was undertaken at the request
of the Olechs, the Zimmers, and Mr. Brinkman for con-
nection “right away” to the municipal water system, and
not as part of Willowbrook’s two-year plan, and the
amended complaint does not allege to the contrary. And
the Plaintiff made no mention of when the homeowners
on the other side of Tennessee Avenue paid their shares
because there are no homes on the other side of Tennessee
Avenue, and no property owner on the east side of Ten-
nessee Avenue was assessed any money in connection
with the work that Willowbrook actually did. The homes
on the property located east of Tennessee Avenue and
across from the property of the Olechs, the Zimmers, and

41

Mr. Brinkman are all the way over on Clarendon Hills
Road, and those homes already had municipal water.
Again, the amended complaint is not to the contrary.

The portion of Tennessee Avenue adjacent to the
Brinkman, Olech, and Zimmer property was not a dedi-
cated public street, and no easements had been granted to
any governmental body for the use of any portion of
Tennessee Avenue. (Par. 22) In August 1995 Modaff told
Zimmer that Willowbrook would not proceed with the
requested water main extension unless all of the property
owners involved granted Willowbrook a 33-foot easement
along Tennessee Avenue, and Pretzer told Zimmer that a
33-foot easement would be required. (Pars. 22-23) On
September 21, 1995, Modaff sent to the Olechs, the Zim-
mers, and Mr. Brinkman a Plat of Easement whereby they
and the property owners on the other side of Tennessee
Avenue would each dedicate a 33-foot strip of their prop-
erty along Tennessee Avenue for public roadway pur-
poses, which would result in a 66-foot wide dedicated
public street. (Par. 25) These demands were not consistent
with Willowbrook’s policy regarding all other property in
the village as was ultimately admitted on November 10,
1995, by the village attorney who stated that a 15-foot
permanent easement would be sufficient and “consistent
with Village policy regarding all other property in the-
Village.” (Emphasis added.) (Par. 26) The Defendants
chose to treat the Olechs, the Zimmers, and Mr. Brinkman
differently from all other property owners in Wil-
lowbrook as a result of the ill will generated by the state
court lawsuit and in an attempt to control stormwater
drainage in the vicinity to the detriment of the Olechs
and the other plaintiffs in the state court lawsuit by the

42

use of ditches and swales along Tennessee Avenue. (Par.
27) The decision by the Defendants to treat the Olechs
and the other plaintiffs in the state court lawsuit in a
manner not consistent with all other property owners in
Willowbrook was irrational and wholly arbitrary. (Par. 28)

Because the 33-foot easements and the 66-foot dedi-
cated street demanded by Willowbrook as a condition of
extending its water main was not consistent with what
the Defendants required in relation to all other property
in the village, the Olechs and the other property owners
involved refused to grant the 33-foot easements and 66-
foot street dedication. (Par. 30) Finally, on November 10,
1995, Willowbrook withdrew its demand for the 66-foot
street dedication and indicated in a letter prepared by its
attorney that it would proceed with the water main
extension if Willowbrook were granted a 15-foot ease-
ment for the water main and the related water service
lines used to connect to the homes. (Par. 31) Because the
15-foot easement requested by Willowbrook in its attor-
ney’s letter of November 10, 1995, was consistent with
what was required by Willowbrook in relation to all other
property in Willowbrook, the Olechs and the other prop-
erty owners involved agreed to grant the 15-foot ease-
ment. (Par. 32)

The initial refusal of the Defendants to proceed with
the requested water main extension unless Willowbrook
were granted 33-foot easements and a 66-foot street dedi-
cation resulted in a delay in the project of approximately
three months, a delay which proved critical as a result of
the approaching winter weather. (Par. 33) In November
1995 the overground hose used by the Olechs to connect
to the Zimmers well froze, and the Olechs were without

43

running water from November of 1995 until the project
was completed on March 19, 1996. (Par. 34) As a proximate
result of the three-month delay caused by Willowbrook’s
illegal and vindictive demands, Grace Olech, who was 72
years old, and Thaddeus Olech, who was 76 years old,
were without running water during the winter of
1995-1996, and suffered great inconvenience, humiliation,
and mental distress. (Par. 35)

ARGUMENT

1. The amended complaint adequately sets forth a viola-
tion of the equal protection clause.

In Esmail v. Macrane (7th Cir. 1995), 53 F.3d 176, the
plaintiff, Basim Esmail, a liquor dealer, alleged that
Naperville officials had developed a deep-seated animos-
ity toward him as a result of his success in getting Naper-
ville’s revocation of his retail liquor license reduced by
the state liquor control commission to a suspension, as a
result of Esmail’s advertising campaign accusing Naper-
ville officials of ineffectual enforcement of the law pro-
hibiting the sale of alcohol to minors, and as a result of
Esmail’s withdrawal of financial and political support for
the mayor. (53 F.3d 176, 178.) Esmail alleged that in 1992
Naperville denied two of his license applications based
on trivial or trumped-up charges while Naperville rou-
tinely granted licenses to persons who had engaged in
similar conduct. (53 F.3d 176, 178.) Esmail alleged that the
denials of his license applications were for the purpose of
exacting retaliation and vengeance. (53 F.3d 176, 178.)
Esmail alleged that he was required to spend substantial
attorney's fees to get his license applications finally

44

granted through the intervention of the state courts. (53
F.3d 176, 177.) The Seventh Circuit found that the com-
plaint adequately pleaded a violation of the equal protec-
tion clause. In language pertinent to this case, the Court
stated:

“The distictive [sic] feature here, which the dis-
trict judge did not discuss, is that the unequal
treatment is alleged to have been the result
solely of a vindictive campaign by the mayor.

Our decision in Ciechon v. City of Chicago,
686 F.2d 511 (7th Cir. 1982), holds that such
conduct, so motivated, violates the equal protec-
tion clause; and the holding, although it has
rarely brought ultimate victory to a plaintiff,
does not stand alone. Vukadinovich v. Board of
School Trustees, 978 F.2d 403, 414 and n. 9 (7th
Cir. 1992); Chicago Cable Communications v. Chi-
cago Cable Commission, 879 F.2d 1540, 1547 (7th
Cir. 1989); Yerardi’s Moody Street Restaurant v.
Board of Selectmen, 878 F.2d 16, 21 (1st Cir. 1989);
Zeigler v. Jackson, 638 F.2d 776, 779 (Sth Cir.
1981)... . If the power of government is brought
to bear on a harmless individual merely because
a powerful state or local official harbors a malig-
nant animosity toward him, the individual
ought to have a remedy in federal court.”

53 F.3d 176, 179.

The Defendants’ first argument is that in a claim
under the equal protection clause pursuant to the princi-
ple discussed in Esmail, the plaintiff must plead “an
orchestrated campaign of official harassment” directed at
the individual “out of sheer malice.” (Defendants’ Mem-
orandum, p. 7.) The Defendants argue that in this case the

45

amended complaint is insufficient because it does not set
forth those elements.

The Defendants’ argument is not well taken because
Esmail does not require a plaintiff to plead an orches-
trated campaign of official harassment or malice. What is
required is that the plaintiff plead “unequal treatment”
resulting from “animosity,” vindictiveness, or bad faith
on the part of the government officials involved. (53 F.3d
176, 179.) Significantly, the Court in Esmail cited Ziegler v.
Jackson (5th Cir. 1981), 638 F.2d 776, 779, as a case apply-
ing its holding, and in Ziegler there was no allegation of
an orchestrated campaign of official harassment. The alle-
gation in Ziegler was simply that the plaintiff's rights
under the equal protection clause were violated when a
state agency refused to let him become a policeman
because of certain prior convictions he had where the
agency “had waived the character requirement for other
individuals convicted of similar or more serious crimes.”
(638 F.2d 778-779.) Moreover, the Court in Yerardi’s Moody
Street Restaurant & Lounge, Inc. v. Board of Selectmen (1st
Cir. 1989), 878 F.2d 16, 21, another case cited by the Court
in Esmail as a case applying its holding, stated the princi-
ple as follows:

“[Ljiability in the instant type of equal protec-

tion case should depend on proof that (1) the

person, compared with others similarly situated,

was selectively treated; and (2) that such selec-

tive treatment was based on impermissible con-

siderations such as race, religion, intent to inhibit

or punish the exercise of constitutional rights, or

malicious or bad faith intent to injure a person.”
(Emphasis added.)

(878 F.2d 16, 21.)

46

The Court in Yerardi’s did not require a showing of “an
orchestrated campaign of official harassment” or “sheer
malice.” Unequal treatment undertaken in bad faith is
enough. Finally, the case of Ciechon v. City of Chicago (7th
Cir. 1982), 686 F.2d 511, cited by the Court in Esmail as the
basis for its holding, did not involve an orchestrated
campaign of official harassment or “sheer malice.” It
involved action by the city in terminating the employ-
ment of a paramedic based on an incident which received
substantial press coverage where another paramedic who
was equally responsible in the incident was not punished.
What Esmail requires is that the plaintiff show unequal
treatment resulting from vindictiveness, animosity, or
other improper purpose of the government officials
involved.

Obviously, Mrs. Olech has pleaded those required
elements. Olech has pleaded that, as a condition of Wil-
lowbrook extending its water main to service the Olechs,
the Zimmers, and Mr. Brinkman, Willowbrook demanded
that they grant Willowbrook a 33-foot easement, and that
Willowbrook be granted a 66-foot street dedication. As
Willowbrook’s attorney ultimately admitted, this was not
consistent with what Willowbrook required in relation to
“all other property” in Willowbrook, i.e., a simple 15-foot
easement. Olech has also alleged that the Defendants
chose to treat her differently for an improper purpose,
i.e., as a result of the ill will generated by the state court
lawsuit against Willowbrook and in an attempt to control
stormwater drainage in the vicinity to the detriment of
the plaintiffs in the state court lawsuit by the use of
ditches and swales along Tennessee Avenue. Mrs. Olech’s
complaint is sufficient.

47

2. Mrs. Olech has not “pled herself out of an action” by
alleging that Willowbrook demanded that property owners on
the other side of Tennessee Avenue grant a 33-foot easement.

The Defendants second argument is that the Plaintiff
“pled herself out of an action” by alleging that other
property owners were asked to grant a 33-foot easement.
Willowbrook argues that the fact that it demanded a 33-
foot easement from the owners of property on the east
side of Tennessee Avenue shows that it was not acting out
of ill will toward the plaintiffs in the state court action,
the Olechs, the Zimmers, and Mr. Brinkman.

The Defendants argument is based on either a care-
less or a contrived reading of the amended complaint and
a misstatement of the facts. There are no homes on the
east side of Tennessee Avenue across from the Olechs, the
Zimmers, and Mr. Brinkman, nor does the amended com-
plaint allege that there are. The homes to the east of the
Olechs, the Zimmers, and Mr. Brinkman are all the way
over on Clarendon Hills Road, and in the spring of 1995,
they already had municipal water. The amended com-
plaint is not to the contrary. What the amended complaint
alleges is that Willowbrook demanded the 33-foot ease-
ments and 66-foot street dedication as a condition of
extending its water main at the request of the Olechs, the
Zimmers, and Howard Brinkman, the plaintiffs in the
state court lawsuit, that their homes be hooked up to the
municipal water supply. (Par. 19) In effect, Willowbrook
told the Olechs, the Zimmers, and Mr. Brinkman that they
would not get municipal water unless and until they
granted the 33-foot easements and obtained such ease-
ments from the property owners across the street who
already had municipal water. Willowbrook’s illegal

48

demands were directed at the plaintiffs in the state court
lawsuit. Mrs. Olech has not “pled herself out of an
action.”

The Defendants’ argument in this regard is similar to
the argument that, when a black person and his white
friend are denied admission to a public accommodation
because of the black person’s race, the black person can-
not recover because his white friend was also excluded.
That argument does not fly (Valle v. Stengel (3d Cir. 1949),
176 F.2d 697), nor does the Defendants’ argument here
have any merit. The amended complaint alleges that the
Defendants’ illegal demands were the result of ill will
against the plaintiffs in the state court lawsuit and in an
attempt to control stormwater drainage in the vicinity to
the detriment of the plaintiffs in the state court lawsuit by
the use of ditches and swales along Tennessee Avenue
(par. 27), and that allegation must be accepted as true.
The Defendants motion to dismiss is not well taken, and
it should be denied.

Respectfully submitted,

/s/ John R. Wimmer
John R. Wimmer

JOHN R. WIMMER

Attorney at Law

928 Warren Avenue

Downers Grove, Illinois 60515
(630) 810-0005

Attorney No. 03125600

49

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

GRACE OLECH,
Plaintiff, GEN. NO. 97 C 4935
vs.
VILLAGE OF
WILLOWBROOK, an
Illinois municipal
corporation, GARY
PRETZER, individually
and as President of
Defendant, VILLAGE OF
WILLOWBROOK, and
PHILIP J. MODAFF,
individually and as
Director of Public Services
for Defendant, VILLAGE
OF WILLOWBROOK,

Defendants.

Judge
George M. Marovich

Magistrate Judge
Keys

me me ee ee ee ee ee ee ee ee ee eee”

REPLY
(Received Jan. 09, 1998)

NOW COMES the Defendants, the VILLAGE OF WIL-
LOWBROOK, an Illinois municipal corporation, GARY
PRETZER, individually and as President of Defendant,
VILLAGE OF WILLOWBROOK, and PHILIP J. MODAFF,
individually and as Director of Public Services for Defen-
dant, VILLAGE OF WILLOWBROOK, by and through
their attorneys, NORTON, MANCINI, ARGENTATI,
WEILER & DeANO, and for their Reply to Plaintiff's
Response to Defendants’ Motion to Dismiss state as fol-
lows.

50

Plaintiff’s Amended Complaint
Fails to Sufficiently Allege Malicious Conduct

The standard for governmental conduct established
by Esmail requires that the government orchestrate a cam-
paign of official harassment aimed at doing significant
harm to a harmless plaintiff. This cause of action is rooted
in governmental conduct that is malicious, unrelenting,
motivated by “malignant animosity,” and “wholly unre-
lated to a legitimate public objective.” Esmail v. Macrane,
(7th Cir. 1995) 53 F.3d 176, 179-80; Sarantakis v. Village of
Winthrop Harbor, (N.D.Ill. 1997) 969 F.Supp. 1095,! (plain-
tiff must demonstrate malice on the part of the govern-
mental entity.) The necessary ingredients of the cause of
action can be gleaned from the following statements in
Esmail:

In particular, Esmail is not complaining merely
that equally or more guilty liquor licensees than
he are treated more leniently. He is complaining
about an orchestrated campaign of official
harassment directed against him out of sheer
malice. 53 F.3d 176 at 179.

* * *

If the power of government is brought to bear
on a harmless individual merely because a pow-
erful state or local official harbors a malignant

! Sarantakis is more closely analogous to this case since it
involves the denial of governmental services, whereas Esmail
involved the refusal of a liquor license. Where the claim
involves the denial of governmental services, according to
Sarantakis, equal protection claims must be based on
discrimination directed at groups, rather than individuals. 969
F.Supp. at 1105.

51

animosity toward him, the individual ought to
have a remedy in federal court. 53 F.3d at 179.

* * *

What it (the equal protection clause) does
require, and what Esmail may or may not be
able to prove, is that the action taken by the
state, whether in the form of prosecution or
otherwise, was a spiteful effort to ‘get’ him for
reasons wholly unrelated to any legitimate state
objective. 53 F.3d at 180.

The Plaintiff's Complaint does not allege the severity
of conduct required by Esmail. The Village’s lack of mal-
ice and intent to harass is evidenced by the fact that it
abandoned its initial request within three months and
agreed to a permanent easement of fifteen feet and a
temporary easement of five feet. Thus, the initial thirty-
three foot easement request could have been only the
result of a legitimate attempt to improve Tennessee Ave-
nue or a mistake, neither of which can amount to a denial
of equal protection.

A claim for violation of equal protection will not lie
where the governmental action was taken out of error,
neglect or mistake. Ciechon v. City of Chicago, (7th Cir.
1982) 686 F.2d 511, 523; Snowden v. Hughes, 321 U.S. 1, 8,
64 S.Ct. 397, 401, 88 L.Ed. 497. Although a plaintiff can be
a member of a class of limited membership, the plaintiff
must have been singled-out because of his membership in
that class and not be just the random victim of govern-
mental incompetence. Albright v. Oliver, 975 F.2d 343, 348
(7th Cir. 1992), aff'd 510 U.S.266, 114 S.Ct. 807, 127
L.Ed.2d 114 (1994). At worst, Plaintiff’s allegations show
that the Plaintiff was a random victim of governmental

52

error; the Village initially asked the Plaintiff for a thirty-
three-foot easement, but later obtained advice from coun-
sel that a total of twenty feet of easement would suffice.
(Plaintiff's Complaint at par. 26).

In Indiana State Teachers Association v. Board of School
Commissioners of the City of Indianapolis, (7th Cir. 1996) 101
F.3d 1179, the court reasoned that even though a class can
consist of a single member, the equal protection clause
will apply in such circumstances only where the govern-
ment seeks to “single out a hapless individual, firm or
other entity for unfavorable treatment.” 101 F. 3d at 1082.
Even in such cases, however, the court noted that the
plaintiff must still demonstrate defendant's conduct to be
irrational and arbitrary.

In Esmail, the municipality “got” the plaintiff by
depriving him of a liquor license thereby destroying his
business. In Ziegler v. Jackson, (Sth Cir. 1981) 638 F.2d 776,
cited by Esmail, the governmental entity deprived the
plaintiff of employment because of his convictions for
presenting a fire arm and criminal provocation, while it
retained other public employees convicted of similar
offenses. The plaintiff therein could point to persons and
circumstances identical to his own wherein the treatment
was different.

Rather than demonstrating that Defendants
attempted to “get” the Plaintiff, or that Defendants’ con-
duct was irrational or arbitrary, Plaintiff's Complaint
reveals that Defendants initially, and for a short time,
sought an easement of sufficient width to improve the
roadway with pavement, sidewalks and public utilities.
Plaintiff, apparently not desirous of such improvements,

53

objected to the thirty-three foot easement, but ultimately
agreed to a fifteen-foot easement, and another five-foot
temporary construction easement. Defendants’ conduct in
this regard was hardly an orchestrated campaign of
harassment, or an effort to “get” the Plaintiff, but merely
a legitimate effort to improve a road obviously used by
the Plaintiff with great frequency.

Defendants’ Conduct Was
Not the Cause of Plaintiff's Injury

In Esmail, the court found it significant that the plain-
tiff did not contribute to the cause of his predicament
through his own conduct. The court characterized the
plaintiff as a “harmless individual” whose treatment was
“the result solely of a vindictive campaign by the mayor.”
53 F.3d at 179. In Indiana State Teachers Association, the
court followed this reasoning, noting that the plaintiff
must be “hapless.” 101 F.3d at 1082. In the context of this
case, the Plaintiff cannot be said to be “harmless” or
“hapless” with respect to her lack of water. It is not
apparent from the Complaint that Plaintiff exhausted all
reasonable attempts to repair her well or devise a new
method of water delivery from her neighbor. In this
sense, the Complaint fails to allege that Plaintiff’s injury
resulted “solely” from a vindictive campaign by Village
officials. Plaintiff's deprivation of running water was
merely incidental to the entire process and can hardly be
deemed the objective of the Village. Plaintiff's Complaint
even states that the plan to connect the homeowners on
Tennessee Avenue to the municipal water supply system
was developed in the spring of 1995 and was to be
implemented within two years, or by the spring of 1997.

54

(Plaintiff's Complaint at par. 18). Yet, Plaintiff admits that
she received water when the project was completed on or
about March 19, 1996, a full year ahead of schedule.
(Plaintiff's Complaint at par. 34).

There is no suggestion in Plaintiff’s Complaint that
the project was intended to be or could have been com-
pleted by November of 1995 when Plaintiff’s hose froze.
Plaintiff cites no law, custom, practice or precedent to
suggest that the project should, would or could have
provided public water service to the Plaintiff by Novem-
ber of 1995, even if the thirty-three foot easement had
never been sought. Thus, irrespective of any attempts by
the Village to acquire sufficient land to properly improve
the road, Plaintiff cannot claim that her loss of water was
due to the conduct of the Village.

Moreover, Plaintiff is still obligated to show that her
injury would not have occurred but for Defendants’ con-
duct. As the court noted in Button v. Harden, (7th Cir.
1987) 814 F.2d 382, 383:

Section 1983 is a tort statute. To prevail under it,
a plaintiff must show not only that his federal
rights were violated but also that, had it not
been for the violation, the injury of which he
complains would not have occurred. Citing
Mount Healthy City School District Board of Educa-
tion v. Doyle, 429 U.S. 274, 285-87, 97 S.Ct. 568,
575-76, 50 L.Ed.2d 471 (1977); DeShaney v. Win-
nebago County Department of Social Services, (7th
Cir. 1987) 812 F.2d 298, 302.

55

The Plaintiff Has Not Sufficiently Alleged Others
Similarly Situated Were Treated Differently

The Plaintiff has also failed to sufficiently allege that
another person similarly situated to herself was treated
differently. O'Connor v. Chicago Transit Authority, (7th Cir.
1993) 985 F.2d 1362; Gaylor v. Thompson, (W.D. Wis. 1996)
939 F.Supp. 1363, 1375. In O’Connor, an employee of the
Chicago Transit Authority with a record of insubordina-
tion brought an equal protection claim asserting that his
termination resulted from his whistle-blowing activity.
Summary judgment for the defendant was affirmed, with
the court noting that the plaintiff failed to demonstrate
that another grossly insubordinate worker was treated
differently than he.

In Gaylor v. Thompson, (W.D. Wis. 1996) 939 F.Supp.
1363, the plaintiffs applied for a display permit and
alleged that they were denied equal protection because
the governor directly engaged himself in the process, as
he had done in no other case, and denied plaintiffs’
application because of their views on the separation of
church and state. Plaintiffs’ failure to demonstrate how
they were similarly situated to previous applicants or
that they were the only ones treated differently than
previous applicants resulted in dismissal of their claim.

The unique and extensive facts pled in Plaintiff's
Complaint do not demonstrate a denial of equal protec-
tion. Plaintiff's residence adjacent to a non-dedicated
road is a unique fact that contradicts the claim that others
who sought connection to the public water supply were
similarly situated. The Complaint alleges that Plaintiff
requested a connection to the public water supply “right

56

away” after her well broke down. (Plaintiff's Amended
Complaint at par. 19). The Plaintiff does not allege that
any other residents who lived adjacent to such non-dedi-
cated roads received public water “right away” after
making a request or that the Village did not initially
attempt to fully dedicate the road so that it could be
improved with pavement, sidewalks and public utilities
as part of the water connection project. The Complaint
does not allege that the law required that Plaintiff's home
be connected to the public water supply “right away” or
that every other resident that ever made a request for
public water service received that water “right away” or
within three months or six months or nine months.

The Plaintiff alleges that Defendants’ request for a
thirty-three-foot easement was made in August and again
in September, but that by November 10, 1995, the Village
agreed that a fifteen-foot easement along with a five-foot
temporary construction easement would suffice for the
installation of the water main. The portion of the Village
Attorney’s letter cited in paragraph 26 of Plaintiff's Com-
plaint is vague and does not suggest that Plaintiff was
treated any differently than similarly situated residents.
The letter states that the requirement of a fifteen-foot
easement and a five-foot temporary construction ease-
ment was consistent with Village policy regarding “all
other property” (emphasis added); this does not mean
that other residents who lived adjacent to non-dedicated
roads over which the governmental body had no ease-
ment were granted a water connection without a request
for a thirty-three foot easement. Rather, the language
cited by the Plaintiff is more reasonably construed to

57

mean that with respect to property “other” than Plain-
tiff’s, i.e., where the residents seeking water were living
adjacent to a fully improved road, fifteen-foot permanent
and five-foot construction easements were sought by the
Village.

Though Plaintiff attempts to draw the inference that
her alleged unequal treatment was due to her status as a
claimant against the Village in another lawsuit, that con-
clusion does not logically follow from the allegations of
the Complaint. The Complaint pleads a rational, rather
than arbitrary, basis for Defendants’ conduct; the desire
to improve a street used by the Plaintiff in conjunction
with the installation of a water main under that street. As
noted in Albright v. Oliver, (7th Cir. 1992) 975 F.2d 343, the
state’s act of singling out an individual for differential
treatment does not itself create the class. It is the Plain-
tiff’s membership in the class that must be the motivating
force behind the government's act of singling her out for
differential treatment. Absent allegations that the Village
conditioned the delivery of public water to the Plaintiff
on the Plaintiff's dismissal of her other claim against the
Village, the Plaintiff has not properly alleged that her
differential treatment resulted from her membership in a
class of persons who have sued the Village.

Ciechon v. City of Chicago, (7th Cir. 1982) 686 F.2d 511,
is distinguishable because the plaintiff therein could
identify a similarly situated person who was treated dif-
ferently by the defendant. The plaintiff was a female
paramedic who was discharged by her employer because
of her alleged failure to render proper treatment during
an ambulance transport of a patient. The plaintiff's co-
worker, a male, was not disciplined, though he was

58

equally responsible for the treatment of the patient in
question. Here, the Plaintiff has not identified a person
similarly situated, i.e., someone who lost their water
source from a private well and requested and received
water from the municipal supply “right away.”

In Ziegler v. Jackson, (Sth Cir. 1981) 638 F.2d 776, cited
by Esmail, the plaintiff, who was convicted of presenting
a firearm and criminal provocation, was discharged from
his position as a police officer pursuant to a statute which
precluded the hiring as a police officer any person con-
victed of an offense involving the use of force or violence
or moral turpitude. Because three other individuals con-
victed of assault and forgery were retained as police
officers, the court concluded that the plaintiff had been
deprived of equal protection.

In Johnson v. City of Fort Wayne, (7th Cir. 1996) 91 F.3d
922, 945, summary judgment was granted for the defen-
dant on the equal protection claim because the plaintiff
failed to allege or demonstrate, as he must, that any other
police officer or firefighter in an upper-level policy-mak-
ing position was given notice and a hearing before being
demoted to the rank that individual held prior to being
appointed to the policy-making position.

Conclusion

Plaintiff is asking this Court to scrutinize a decision
to initially seek a thirty-three-foot easement for the
improvement of a non-dedicated road as part of a project
for the installation of a water main. Plaintiff's Complaint
supplies facts which demonstrate that this request was
neither arbitrary nor irrational, and also fails to allege

59

that similar requests for thirty-three-foot easements were
not made when other residents requested the installation
of a water main along a non-dedicated road. Moreover,
the Plaintiff's loss of water was the result of her well
breaking down and a hose freezing, not the result of
governmental conduct. The extension of the principles
which govern the Esmail decision to the facts set forth in
Plaintiff's Complaint herein would trivialize the equal
protection clause. Indiana State Teachers Association v.
Board of School Commissioners of the City of Indianapolis,
(7th Cir. 1996) 101 F.3d 1179, 1181 (the concept of equal
protection is trivialized when it is used to subject every
decision made by a local government to constitutional
review by federal courts.)

WHEREFORE, in light of the foregoing, Defendants
pray that this Court enter its Order dismissing the Plain-
tiff’s Amended Complaint with prejudice.

Respectfully submitted,

NORTON, MANCINI,
ARGENTATI, WEILER
& DeANO

By: /s/ James L. DeAno
James L. DeAno

NORTON, MANCINI, ARGENTATI, WEILER & DeANO
109 North Hale, P.O. Box 846

Wheaton, Illinois 60189-0846

(630) 668-9440

Attorney No. 6180161

60

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

GRACE OLECH,
Plaintiff,

)
)
) No. 97 C 4935
Vv. )
) Judge
VILLAGE OF |
WILLOWBROOK, et al., George M. Marovich
Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Grace Olech (“Olech”) filed this action, pur-
suant to 42 U.S.C. § 1983, against Defendants the Village
of Willowbrook (“Willowbrook” or the “Village”), Gary
Pretzer (“Pretzer”), individually and as President of Wil-
lowbrook, and Philip Modaff (“Modaff”), individually
and as Director of Public Services for Willowbrook, alleg-
ing that Defendants violated her rights under the Equal
Protection Clause of the Fourteenth Amendment to the
United States Constitution. Defendants have filed a
motion to dismiss Olech’s Complaint pursuant to Fed. R.
Civ. P. 12(b)(6). For the reasons set forth below, the Defen-
dants’ motion to dismiss is granted.

BACKGROUND

Olech is the 72-year-old owner and resident of a
single-family home on Tennessee Avenue in Willowbrook,

61

Illinois.! Olech’s home is located between two other
homes on Tennessee Avenue - owned by Rodney and
Phillis Zimmer (the “Zimmers”) on the south and How-
ard Brinkman (“Brinkman”) on the north.

Up until the spring of 1995, Olech and her late-
husband obtained their potable water from a private well
located on their property. In the spring of 1995, however,
the Olechs’ well broke down and was allegedly beyond
repair. Because the Willowbrook water main extended
only to the northern boundary of Brinkman’s property -
the Olechs’ neighbor to the north on Tennessee Avenue -
in order to obtain water, the Olechs were forced to hook
an overground rubber hose up to the well of the Zimmers
- their neighbors to the south on Tennessee Avenue.

The Olechs apparently viewed this as a “temporary
solution” to their water problem. As such, the Olechs, the
Zimmers and Brinkman allegedly asked Willowbrook to
hook their homes up “right away” to the Willowbrook
municipal water system. Olech contends that she
explained her water problems (the broken well) to Mod-
aff, the Director of Public Services for Willowbrook, and
notified him that the overground hose would not work in
the winter when the temperature fell below freezing.

Olech contends that after alerting Willowbrook to her
problem, the Village began work on extending the water
main to hook up Olech’s home and the homes of her two
neighbors. Willowbrook conditioned its work on an

! Since the time that the events at issue in this suit took
place Olech’s husband, Thaddeus Olech, has died of causes
unrelated to this action.

62

agreement by Olech and her neighbors to each pay one-
third of the estimated cost of the project. By July 12, 1995,
Willowbrook had received the required payments of
$7,012.67 from Olech and her neighbors.

However, in August of 1995, Willowbrook informed
Olech and her neighbors that in addition to their cash
payments for the project, Willowbrook also required them
to grant the Village a 33-foot easement along Tennessee
Avenue. According to Olech, the Plat of Easement created
by Willowbrook required property owners of both sides
of Tennessee Avenue - the Olechs, Zimmers, and Brink-
man live on the west side of Tennessee Avenue - to
dedicate a 33-foot strip of property along Tennessee Ave-
nue for public roadway purposes. Specifically, wil-
lowbrook wanted to install a paved roadway with
sidewalks and public utilities on Tennessee Avenue.

The Olechs and their neighbors refused to grant Wil-
lowbrook the 33-foot easement that it required. As a
result of the property owners’ refusal to grant the ease-
ment, no progress was made on the water project. Finally,
on November 10, 1995, Willowbrook’s attorney prepared
a letter in which the Village withdrew its demand for a
33-foot easement and indicated to Olech and her neigh-
bors that it would proceed with the water main extension
if they would grant Willowbrook a 15-foot easement for
the water main and the related water service line used to
connect the homes. According to Olech’s Complaint, the
letter from Willowbrook’s attorney stated, in part:

[A] fifteen foot (15°) easement, along with a
temporary construction easement of five feet (5')
on each side, will be sufficient to install the

63

water main. This is consistent with Village pol-
icy regarding all other property in the Village.

(Compl. at ¥ 26.) Olech and her neighbors agreed to grant
Willowbrook the 15-foot easement and the water project

was completed approximately four months later on
March 19, 1996.

Meanwhile, in November 1995, the overground hose
used by the Olechs to connect to their neighbor’s well
froze. As a result, Olech and her husband were without

running water from November 1995 through March 19,
1996.

Olech filed her Complaint with this Court alleging
that Willowbrook violated her rights under the Equal
Protection Clause by initially requiring that she and her
neighbors grant the Village a 33-foot easement while only
requiring a 15-foot easement from other Village resi-
dents.? Olech contends that the reason that she and her
neighbors were singled out by Willowbrook was because
they had each filed state-court lawsuits against the Vil-
lage six years earlier in August of 1989.3 Olech alleges
that these lawsuits made Willowbrook and its officers and
employees “look bad.” Olech further alleges that these

* Olech bases this allegation on the letter she received
from Willowbrook’s attorney reporting that a 15-foot easement

was “consistent with Village policy regarding all other property
in the Village.”

* The Olechs, the Zimmers and Brinkman filed three
state-court suits against Willowbrook for damage that resulted
from the flooding of their property by storm water. The Olechs
and Zimmers were successful in their suits against
Willowbrook. Brinkman’s claims were dismissed for want of
prosecution.

64

lawsuits generated “substantial ill will” on the part of
Willowbrook and its officers and employees. This “ill
will,” according to Olech, is what ultimately motivated
Willowbrook to require a larger easement (33 feet) from
her and her neighbors than what is normally required (15
feet) from other property owners in the Village. Olech
maintains that the three-month delay, which resulted
from Willowbrook’s request for the larger easement, is
what ultimately caused her and her husband to be with-
out running water during the winter of 1995-1996. Thus,
it is this three-month delay that Olech claims deprived
her of her rights under the Equal Protection Clause.

DISCUSSION

I. Standards For a Motion to Dismiss

When considering a motion to dismiss, the Court
examines the sufficiency of the complaint, not the merits
of the lawsuit. See Triad Assoc. v. Chicago Hous. Auth., 892
F.2d 583, 586 (7th Cir. 1989). “[T]he issue is not whether a
plaintiff will ultimately prevail but whether the claimant
is entitled to offer evidence that supports the claims.”
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A motion to
dismiss will be granted only if the Court finds that the
plaintiff can prove no set of facts that would entitle him
to relief. See Venture Assoc. Corp. v. Zenith Data Sys. Corp.,
987 F.2d 429, 432 (7th Cir. 1993); Conley v. Gibson, 355 U.S.
41, 45-46 (1957). On a motion to dismiss, the Court draws
all inferences and resolves all ambiguities in the plain-
tiffs’s favor and assumes that all well-pleaded facts are
true. See Dimmig v. Wahl, 983 F.2d 86, 86 (7th Cir. 1993).

65

II. Violation of the Equal Protection Clause

The Seventh Circuit has explained that there are two
common varieties of equal protection claims: (1) those in
which the plaintiff claims that she is a member of a
vulnerable group (principally racial) and has been sin-
gled out for unequal treatment on that basis; and (2)
those involving challenges to laws or rules that sup-
posedly draw irrational distinctions. Esmail v. Macrane, 53
F.3d 176, 178 (7th Cir. 1995). A third and more unusual
claim involves “orchestrated campaigns of official harass-
ment directed against [a plaintiff] out of sheer malice.” Id.
at 179. Olech contends that her Complaint belongs to this
highly unusual class of equal protection claims.

In Esmail, a Naperville liquor dealer (Esmail) alleged
that he was denied the renewal of his liquor license as a
result of an “orchestrated campaign” by the mayor. Speci-
fically, Esmail alleged that the mayor, who is also Naper-
ville’s liquor control commissioner, not only denied his
repeated applications for a liquor license, but also insti-
tuted a “campaign of vengeance” against him which con-
sisted of causing the Naperville police to harass him and
his employees with “constant, intrusive surveillance, in
causing the police to stop his car repeatedly and forc[ing]
him to undergo field sobriety tests, and in causing false
criminal charges to be lodged against him.” Id. at 178. The
court summarized that Esmail’s “charge here is that a

powerful public official picked on a person out of sheer
vindictiveness.” id.

After reviewing Esmail’s 22-page Complaint, the Sev-
enth Circuit declared that:

66

If the power of the government is brought to
bear on a harmless individual merely because a
powerful state or local official harbors a malig-
nant animosity toward him, the individual
ought to have a remedy in federal court.

Id. at 179.

While this Court is sympathetic to alleged wrong
suffered by Olech and her husband, the Court is not
convinced that Olech’s Complaint describes the “malig-
nant animosity” or the “orchestrated campaign of official
harassment” complained of in Esmail. Even accepting
Olech’s allegations that her state-court action generated
“ill will” in Willowbrook against her and her neighbors,
this Court is unable to conclude that the Village ever
“harassed” or “picked on” Olech and her neighbors “out
of sheer vindictiveness” as in Esmail. At most, Olech’s
Complaint alleges that the Village acted unreasonably
and out of “ill will” in requiring her to give up an extra
18 feet of easement space that was not required of other
property holders. This hardly qualifies as the same type
of conduct alleged to have been suffered in Esmail. More-
over, based on the allegations contained in Olech’s Com-
plaint, it appears that the reason that the Village wanted
33 feet of easement rather than 15 feet of easement was so
that it would be able to install a paved public roadway
along Tennessee Avenue with sidewalks and public util-
ities - something it apparently could not do without the
additional 18 feet of space. (Compl. at { 25.) Nothing in
Olech’s Complaint - apart from conclusory assertions -
indicates that Willowbrook was acting out of vindictive-
ness or in retaliation for Olech’s prior lawsuit. See Trask v.
Rios, 1995 WL 758410, at *5 (N.D. Ill. Dec. 19, 1995)

67

(" ‘Harass,’ ‘discriminate,’ and ‘retaliate’ are words to
which legal significance attaches. Alone, they are legal
conclusions that do not place defendants on notice of the
circumstances from which the accusations arise and
therefore are inappropriate pleading devices.”); Palda v.
General Dynamics Corp., 47 F.3d 872, 875 (7th Cir. 1995)
(“A complaint [that] consists of conclusory allegations
unsupported by factual assertions fails even the liberal
standard of Rule 12(b)(6).”). Assuming that all of the
allegations contained in Olech’s Complaint are true, it
appears to this Court that there may be “ill will” on the
part of both Willowbrook and Olech. Nevertheless, this
Court finds that the alleged treatment of Olech by Wil-
lowbrook and its officers - as well as the alleged motiva-
tion behind this treatment - is not sufficient to state an
equal-protection claim under the standards as set forth in
Esmail.

CONCLUSION

For the foregoing reasons, this Court grants Defen-
dants’ motion to dismiss.

ENTER:

/s/ George M. Marovich
GEORGE M. MAROVICH
UNITED STATES

DISTRICT COURT

DATE: April 13, 1998

68

Minute Order Form (Rev. 12/90)

UNITED STATES DISTRICT COURT,
NORTHERN DISTRICT OF ILLINOIS

Name of Assigned Judge or Magistrate Judge
GEORGE M. MAROVICH

Sitting Judge if Other Than Assigned Judge

Case Number 97 C 4935
Date April 13, 1998
Case Title

OLECH -v- VILLAGE OF WILLOWBROOK et al

MOTION: [In the following box (a) indicate the party
filing the motion, e.g., plaintiff, defendant,
3rd-party plaintiff, and (b) state briefly the
nature of the motion being presented.]

DOCKET ENTRY:

(1) [ ] Filed motion of [use listing in “MOTION”
box above].

Answer brief to motion due
Reply to answer brief due

(4) [{ | { | Ruling
on set for
at

(2) { ] Brief in support of motion due
(3) [|

{| | Hearing

(5) | ] Status hearing
{| | held [ ] continued to
| | set for [ ] re-set for
at

(6) [| ] Pretrial conf.
{ }] held [ ]} continued to
{ ] set for [ ] re-set for
at

69

(7) [| ] Trial [ ] Set for [ ] re-set for

at
(8) [ ] [{ ] Bench Trial [ ] Jury Trial
[ ] Hearing
held and continued to at

(9) [| ] This case is dismissed
{ ] without [ ] with
prejudice and without costs
[ ] by agreement [ ] pursuant to

[ ] FRCP 4(j) (failure to serve)

{ ] General Rule 21 (wan* of prosecution)
[ } FRCP 41(a)(1)
{ ] FRCP 41(a)(2)

(10) [XX] [Other docket entry] Pursuant to

Memorandum Opinion and Order entered
this day, defendants’ motion to dismiss is
granted.

(11) [X] [For further detail see
[ ] order on the reverse of

[X] order attached to the original minute
order form.|]

{ ] No notices required, advised in open court.
{ ] No notices required.

[X] Notices mailed by judge’s staff.

| } Notified counsel by telephone.

[ ] Docketing to mail notices.

{ ] Mail AO 450 form.

[ ] Copy to judge/magistrate Judge.

70

[X] courtroom
deputy’s
Initials

Date/time received in central Clerk’s Office
number of notices

date docketed

docketing dpty. initials

13 April 98 date mailed notice

[X] mailing dpty. initials
Document #

71

United States District Court
Northern District of Illinois
Eastern Division
OLECH JUDGMENT IN A CIVIL CASE

v. Case Number: 97 C 4935
VILLAGE OF WILLOWBROOK et al

{ ] Jury Verdict. This action came before the Court
for a trial by jury. The issues have been tried and
the jury rendered its verdict.

[X]_ Decision by Court. This action came to trial or
hearing before the Court. The issues have been
tried or heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED this action is
dismissed in its entirety.
Michael W. Dobbins,
Clerk of Court

/s/ J. Smith _
J. Smith, Deputy Clerk

Date: 4/13/98

72

NO. 98-2235
IN THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

GRACE OLECH, ) Appeal from the United
) States District Court for the

) Northern District of Illinois,
-VS- ) Eastern Division.

VILLAGE OF )
WILLOWBROOK, an?
Illinois municipal )
corporation, GARY
PRETZER, individually ?
and as President of )
Defendant VILLAGE OF ?
WILLOWBROOK, and :
)
)
)
)
)
)
)

Plaintiff-Appellant,

No. 97 C 4935

Hon. George M. Marovich,
Judge Presiding.

PHILIP J. MODAFF,
individually and as
Director of Public
Services of Defendant
VILLAGE OF
WILLOWBROOK,

Defendants-Appellees.

BRIEF OF PLAINTIFF-APPELLANT GRACE OLECH
(Received Jul. 29, 1998)

JOHN R. WIMMER

928 Warren Avenue

Downers Grove, Illinois 60515
(630) 810-0005

Attorney for Plaintiff-Appellant

73

PLAINTIFF-APPELLANT’S
CERTIFICATE OF INTEREST

Appellate Court No: 98-2235
Short Caption: Olech v. Village of Willowbrook, et al.

To enable the judges to determine whether recusal is
necessary Or appropriate, an attorney for a non-govern-
mental party or amicus curiae, or a private attorney rep-
resenting a government party, must furnish a certificate
of interest stating the following information in compli-
ance with Circuit Rule 26.1. NOTE: Counsel is required to
complete the entire certificate and to use N/A for any
information that is not applicable. i om

(1) The full name of every party or amicus the attorney
represents in the case:
Grace Olech
(2) If such party or amicus is a corporation:
i) Its parent corporation, if any; and
N/A

ii) A list of stockholders which are publicly held

companies owning 10% or more of the stock in
the party or amicus:

N/A
(3) The names of all law firms whose partners or associ-
ates have appeared for the party in the case or are
expected to appear for the party in this court:
The Law Offices of John R. Wimmer

This certificate shall be filed with the appearance
form or upon the filing of a motion in this court, which-
ever occurs first. The attorney furnishing the certificate
must file an amended certificate to reflect any material

74

changes in the required information. The text of the certifi-
cate (i.e. caption omitted) shall also be included in from
[sic] of the table of contents of the party’s main brief.

Attorney’s Signature: /s/ John R. Wimmer

Attorney’s Printed Name: John R. Wimmer
Date: May 20, 1998

TABLE OF CONTENTS

Page

STATEMENT OF SUBJECT MATTER AND APPEL-
CA HE IE on dsvesecesccecccdntidseces 1
STATEMENT OF ISSUES PRESENTED FOR REVIEW 2
STATEMENT OF THE CASE..............sseceeeee 3
IIS Sunccccccccccéescccsebecee 4
SUMMARY OF ARGUMENT....................45- 12
cba cidh nunndebddnokedendsndsdesans es 13

I. Standard of Review of a Dismissal under
I so cc cocnectedacbeconsokes 13

Il. The District Court erred in dismissing Grace
Olech’s Amended Complaint because the
Amended Complaint states a claim under 42
U.S.C. § 1983 for violation of her rights under the
Equal Protection Clause of the Fourteenth
Amendment to the United States constitution
under the principles of this Court’s decision in
Esmail v. Macrane, 53 F.3d 176 (7th Cir. 1995), and
because the plaintiff has not “pled herself out of
an action” by alleging that other homeowners
were asked to grant a 33-foot easement........ 14

GENRE occ cvccccccccveccdccsevecsavecesesce 23

75
TABLE OF ee STATUTES, AND
Page
Chicago Cable Communications v. Chicago Cable Com-
mission, 879 F.2d 1540 (7th Cir. 1989).............. 15
Ciechon v. City of Chicago, 686 F.2d 511 (7th Cir.
SUS 6605S b6bs beset nsdstecuadtedeceviesssces 15, 19

City of Cleburne v. Cleburne Living Center, Inc., 473
U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985).... 14

Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d

A RRC on Tey ee. di 14
Cushing v. City of Chicago, 3 F.3d 1156 (7th Cir.
MRR ER. a IME let Se 14

Esmail v. Macrane, 53 F.3d 176 (7th Cir. 1995)....passim
Hishon v. King & Spaulding, 467 U.S. 69, 104 S.Ct.

2229, 81 L.Ed.2d 59 (1984)......... 2.00 ce eeeee 13, 14
Hrubec v. National Railroad Passenger Corp., 981

Se Se SE GES. CEES onc Croce ecsccocesevces 13, 20
Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31

SD Cee eedesécdevcesbwccncdsecctsocce 14
Mount v. LaSalle Bank Lake View, 926 F.Supp. 759

PE UE cece cescvedescbevesecccdscccceccs 13, 20
Valle v. Stengel, 176 F.2d 697 (3d Cir. 1949).......... 22
Vukadinovich v. Board of School Trustees, 978 F.2d

SP, DE en secsnnéscncessesenspesscioens 15
Yerardi’s Moody Street Restaurant v. Board of Select-

men, 878 F.2d 16 (1st Cir. 1989)................ 15, 19

Zeigler v. Jackson, 638 F.2d 776 (5th Cir. 1981)... 15, 16, 18

76
Fed.R.Civ.P. 12(b)(6).......00 6c cece cece ee eeeneee passim
28 U.S.C. §1291.. 0... cece cece eee ee ene eeneenenees 1
2B UG.C. GUBBL... 0. cccccccccccccccccvccccccccvece 1
y) iS Semen)” ee er ere 1
42 U.S.C. 61983. ...... 2. cece cece cece eee eeeeeeees passim

STATEMENT OF SUBJECT MATTER AND
APPELLATE JURISDICTION

The plaintiff-appellant, Grace Olech, filed this action
in the United States District Court for the Northern Dis-
trict of Illinois, Eastern Division, against the defendants-
appellees, Village of Willowbrook, an Illinois municipal
corporation, Gary Pretzer, individually and as President
of Willowbrook, and Philip J. Modaff, individually and as
Director of Public Services of Willowbrook. The plaintiff's
Amended Complaint (Appendix 2-11) consisted of one
count brought against all of the defendants under 42
U.S.C. §1983 and alleged that the defendants had
deprived Grace Olech of her rights under the Equal Pro-
tection Clause of the United States constitution. The dis-
trict court had subject matter jurisdiction pursuant to 28
U.S.C. §1331 and 28 U.S.C. §1343.

On April 13, 1998, the district court issued a Mem-
orandum Opinion And Order (Appendix 24-33) which
granted the defendants’ motion to dismiss this action
under Fed.R.Civ.P. 12(b)(6). Also on April 13, 1998, the
district court issued a Judgment In A Civil Case on form
AO 450 (Appendix 34) which provided that “this action is
dismissed in its entirety.” The judgment was entered by
the clerk on April 15, 1998. (See page 5 of the clerk's
docket sheet.) The plaintiff filed her Notice Of Appeal on

77

May 13, 1998, or within 30 days after the entry of the
judgment. (Doc. 23) No motions were ever filed for alter-
ation of the judgment, and no motions were ever filed
which are claimed to have tolled the time within which to
appeal. This appeal is from a final judgment that disposes
of all claims with respect to all parties. This Court has
appellate jurisdiction pursuant to 28 U.S.C §1291.

STATEMENT OF ISSUES PRESENTED FOR REVIEW

Whether the district court erred in dismissing Grace
Olech’s Amended Complaint because the Amended Com-
plaint states a claim under 42 U.S.C. §1983 for violation of
Grace Olech’s rights under the Equal Protection Clause of
the Fourteenth Amendment to the United States constitu-
tion under the principles of this Court’s decision in
Esmail v. Macrane, 53 F.3d 176 (7th Cir. 1995), and whether
the plaintiff “pled herself out of an action”?

STATEMENT OF THE CASE

The plaintiff-appellant, Grace Olech, filed this action
against the defendants-appellees, the Village of Wil-
lowbrook, an Illinois municipal corporation, Gary Pretzer,
individually and as President of Willowbrook, and Philip J.
Modaff, individually and as Director of Public Services of
Willowbrook. The action was filed under 42 U.S.C. §1983
and sought damages based on the violation of Mrs.
Olech’s rights under the Equal Protection Clause of the
United States constitution. The defendants filed a motion
to dismiss the action under Fed.R.Civ.P. 12(b)(6), and the
district court granted that motion and entered judgment
for the defendants.

78

STATEMENT OF FACTS

This action was commenced on July 11, 1997, when
the plaintiff-appellant, Grace Olech (“Olech” or “Mrs.
Olech”) filed her Complaint (Doc. 1-1) in the United
States District Court for the Northern District of Illinois,
Eastern Division, against the defendants-appellees, the
Village of Willowbrook, an Illinois municipal corporation
(“Willowbrook”), Gary Pretzer, individually and as Presi-
dent of Willowbrook (“Pretzer”), and Philip J. Modaff,
individually and as Director of Public Services of Wil-
lowbrook (“Modaff”). On October 8, 1997, Olech filed an
Amended Complaint (Appendix 2-11), having received
leave of court to do so. (Doc. 7)

In her Amended Complaint, Olech alleged that she
was a citizen of the United States and a resident of
Willowbrook. (Appendix 3) Olech brought the lawsuit
under 42 U.S.C. §1983 to redress the violation of her
rights under the Equal Protection Clause of the Four-
teenth Amendment to the United States Constitution.
(Appendix 2)

According to the Amended Complaint, on August 8,
1989, Olech and her since deceased husband, Thaddeus
Olech, along with Howard Brinkman, and Rodney C.
Zimmer and Phyllis S. Zimmer, and others filed a lawsuit
against Willowbrook and other defendants in the Circuit
Court of the Eighteenth Judicial Circuit, DuPage County,
Illinois, Case No. 89 L 1517 (“the state court lawsuit”), in
which the plaintiffs sought money damages from Wil-
lowbrook and the other defendants as a result of the
flooding of the plaintiffs’ property by stormwater.
(Appendix 3) Howard Brinkman’s claims in the state

79

court were dismissed for want of prosecution on April 1,
1991. (Appendix 3-4) The Olechs’ claim against Wil-
lowbrook in the state court lawsuit was tried to a jury
which, on February 11, 1997, returned a verdict in favor
of Olech, individually and as special administrator of the
estate of Thaddeus Olech, and against Willowbrook in the
amount of $20,000.00, and judgment was entered on the
verdict. (Appendix 4) The claim of Rodney C. Zimmer
and Phyllis S. Zimmer against Willowbrook in the state
court lawsuit was tried to a jury which, on February 11,
1997, returned a verdict in favor of the Zimmers and
against Willowbrook in the amount of $135,000.00, and
judgment was entered on that verdict. (Appendix 4)
Grace Olech is Phyllis Zimmer’s mother. (Appendix 3)

According to the Amended Complaint, the state
court lawsuit against Willowbrook, which was ultimately
determined to be meritorious, was the subject of substan-
tial coverage in the local press, was bitterly contested by
Willowbrook, and generated substantial ill will toward
the plaintiffs on the part of Willowbrook and its officers
and employees, including Modaff and Pretzer. (Appendix
4) The Amended Complaint alleged that said ill will
resulted from, among other things, the coverage of the
state court lawsuit in the local press which made Wil-
lowbrook and its officers and employees look bad, from
the erroneous belief on the part of Willowbrook’s officers
and employees that the state court lawsuit was frivolous
and meritless, and from the fact that, prior to the filing of
the state court lawsuit, Grace and Thaddeus Olech and
Howard Brinkman had refused to grant certain drainage
easements for a storm water drainage project favored by
Willowbrook. (Appendix 4-5)

80

From a long time prior to the filing of the state court
lawsuit and until the death of Thaddeus Olech on
November 24, 1996, Grace Olech and Thaddeus Olech
were the joint owners of and resided in a single family
home at 6440 Tennessee Avenue in Willowbrook, Illinois,
on the west side of Tennessee Avenue. Since the death of
Thaddeus, Grace Olech has been the sole owner of this
property (“the Olech property”) and has continued to
reside there. (Appendix 5) In the spring of 1995 the
private well on the Olech property, which provided pota-
ble water for the Olech home, broke down and was
beyond repair. The Olechs then implemented a temporary
solution to the problem by hooking up to the well of their
neighbors to the south on Tennessee Avenue, Rodney and
Phyllis Zimmer, via an overground hose. (Appendix 5) At
that time Willowbrook’s water main on Tennessee Ave-
nue extended approximately as far south as the northern
boundary of the property of Howard Brinkman, the
neighbor to the north of the Olechs on Tennessee Avenue.
(Appendix 5)

By the spring of 1995 Willowbrook had developed a
plan which was to be implemented within two years of
the spring of 1995 and which was going to require all of
the homeowners on Tennessee Avenue, who were not
hooked up to Willowbrook’s municipal water system, to
hook up to the system. (Appendix 6)

On May 23, 1995, while the state court lawsuit was
pending, Grace Olech and Thaddeus Olech, along with
Howard Brinkman, and Rodney and Phyllis Zimmer,
made a request to Willowbrook that their homes be
hooked up right away to Willowbrook’s municipal water
supply system. At or about that time Modaff was

81

informed that the well on the Olech property had broken
down, and that the Olech home was obtaining potable
water from the Zimmers’ well via an overground hose, a
temporary solution which would not work in the winter
when the temperature fell below freezing. (Appendix 6)
As required by law, Willowbrook undertook to extend the
water main and hook up the homes as requested, condi-
tioned on the payment by the owners of each of the three
parcels of property involved of one-third of the estimated
cost of the project. (Appendix 6) On July 11, 1995, Grace
and Thaddeus Olech paid to Willowbrook $7,012.67, rep-
resenting their share of the estimated cost of the project,
and by July 12, 1995, Willowbrook had received the
required payments from Howard Brinkman and the Zim-
mers. (Appendix 6-7)

According to the Amended Complaint, the portion of
Tennessee Avenue adjacent to the property of Howard
Brinkman, to the Olech property, and to the Zimmer
property is not, and never has been a dedicated public
street, and no easements had been granted to any govern-
mental body for the use of any portion of Tennessee
Avenue adjacent to the Brinkman, Olech, or Zimmer
properties. (Appendix 7)

In August of 1995 Modaff told Phyllis Zimmer that
Willowbrook would not proceed with the project unless
all of the property owners involved granted Willowbrook
a 33-foot easement along Tennessee Avenue, and in that
same month Pretzer told Phyllis Zimmer that the 33-foot
easement would be required for the project. (Appendix 7)
On September 21, 1995, Modaff sent to Grace and Thad-
deus Olech and to the other property owners involved a
Plat of Easement whereby they and the property owners

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on the other side of Tennessee Avenue would each dedi-
cate to Willowbrook a 33-foot strip of their property
along Tennessee Avenue for public roadway purposes
and grant to Willowbrook a 33-foot easement for the
construction and maintenance of a roadway, to include
pavement, sidewalks, and public utilities, which would
result in a 66-foot wide dedicated street. (Appendix 7)

According to the Amended Complaint, the defen-
dants’ demands for 33-foot easements and a 66-foot dedi-
cated street as a condition of the extension of the water
main were not consistent with the policy of Willowbrook
regarding other property in Willowbrook. The Village
Attorney, Gerald M. Gorski, eventually admitted as much
in a letter dated November 10, 1995, in which he stated as

follows:

[A] fifteen foot (15') easement, along with a
temporary construction easement of five feet (5')
on each side, will be sufficient to install the
water main. This is consistent with Village pol-
icy regarding all other property in the Village.

(Appendix 8)

The Amended Complaint alleges that the defendants
treated Grace and Thaddeus Olech, Howard Brinkman,
and Rodney and Phyllis Zimmer differently from other
property owners in Willowbrook by demanding the 33-
foot easements and the 66-foot dedicated street as a con-
dition of the extension of the water main because of the
ill will generated by the state court lawsuit and in an
attempt to control stormwater drainage in the vicinity to
the detriment of the Olechs and the other plaintiffs in the
state court lawsuit, by the use of ditches and swales along

83

Tennessee Avenue. (Appendix 8) The Amended Com-
plaint alleges that the defendants’ decision to treat the
Olechs and the other plaintiffs in the state court lawsuit
in a manner not consistent with other property owners in
Willowbrook by demanding the 33-foot easements and
the 66-foot dedicated street as a condition of the exten-
sion of the water main was irrational and wholly arbi-
trary, and was made by the appropriate policy-making
official or employee of Willowbrook. (Appendix 8)

According to the Amended Complaint, because the
33-foot easements and the 66-foot dedicated street
demanded by the defendants were not consistent with
what the defendants required in relation to other prop-
erty in the Village of Willowbrook, Grace and Thaddeus
Olech and the other property owners involved declined
to grant the 33-foot easements and the 66-foot street
dedication. (Appendix 8-9) And from the time that Mod-
aff first demanded the 33-foot easements in August of
1995 until on or about November 10, 1995, no progress
was made on the project. (Appendix 9)

On November 10, 1995, Willowbrook relented and
withdrew its demand for the 66-foot street dedication and
indicated in a letter prepared by its attorney that it would
proceed with the water main extension if Willowbrook
were granted a 15-foot easement for the water main and
for related water service lines used to connect the homes.
(Appendix 9) The easement demanded by Willowbrook in
its attorney’s letter of November 10, 1995, was consistent
with what was required by Willowbrook in relation to
other property in Willowbrook, and, therefore, Grace and
Thaddeus Olech, and the other property owners involved
agreed to grant that easement. (Appendix 9)

84

The Amended Complaint alleged that the initial
refusal of the defendants to proceed with the project
unless Willo . brook was granted 33-foot easements and a
66-foot street dedication resulted in a delay in the project
of approximate’y three months, a delay which proved
critical as a result of the approaching winter weather.
(Appendix 9) In November of 1995 the overground hose
used by Grace and Thaddeus Olech to connect to their
neighbor’s well froze, and, therefore, Grace and Thad-
deus Olech were without running water from November
of 1995 until the project was completed on March 19,
1996. (Appendix

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0263%3A04. Public record. Not legal advice.