Opinion
Cause No. 1:04-CV-171.
November 24, 2004
MEMORANDUM OF DECISION AND ORDER
I. INTRODUCTION
Pro se Plaintiff James K. Arington ("Arington") alleges in this suit that Defendant County of DeKalb, Indiana ("the County"), along with several other defendants, committed multiple violations of his federal and state constitutional rights. The County, believing that Arington cannot prove any set of facts to support these claims, moves for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). Arington contests the County's motion and also moves to amend his complaint, which the County opposes.
The other defendants are all officials, former officials, or agencies of the County. Although this opinion occasionally references individual defendants, it mostly uses "the County" as a generic term for all defendants.
This Court has subject matter jurisdiction under 28 U.S.C. § 1331. Jurisdiction of the undersigned Magistrate Judge is based on 28 U.S.C. § 636(c), all parties consenting.
After considering the motions and the relevant law, the Court finds that Arington's motion to amend should be GRANTED and that the County's motion for judgment on the pleadings should be GRANTED in part and DENIED in part.
The County also filed a motion to strike Arington's brief in response to its motion for judgment on the pleadings, on the grounds that Arington's brief was filed six days late. Because Arington (1) is pro se; (2) claims not to have received notice of the deadline ( see Docket # 50); and (3) was under the mistaken impression that the deadline was tolled ( see Docket # 39 at 2), the County's motion is DENIED.
II. ARINGTON'S MOTION TO AMEND
Before deciding whether the County is entitled to judgment on the pleadings, the Court must ascertain which version of the pleadings is relevant. Accordingly, the Court turns first to Arington's motion to amend his complaint.A party may amend its pleading once as a matter of course at any time before a responsive pleading is served; otherwise, it may amend only by leave of the court or by written consent of the adverse party. Fed.R.Civ.P. 15(a). Leave to amend is freely given when justice so requires. Id. However, this right is not absolute, Brunt v. Serv. Employees Int'l Union, 284 F.3d 715, 720 (7th Cir. 2002), and can be denied for undue delay, bad faith, dilatory motive, prejudice, or futility, Ind. Funeral Dir. Ins. Trust v. Trustmark Ins. Corp., 347 F.3d 652, 655 (7th Cir. 2003).
Here, Arington's proposed amended complaint does not add or subtract any claims from the original complaint, but merely explains some of the claims in greater depth. ( Compare Docket # 1 with Docket # 38.) The County claims that Arington's motion to amend is futile because his proposed amended complaint still fails to survive its motion for judgment on the pleadings. However, as explained infra, some of the claims in Arington's proposed amended complaint are sufficient to defeat the County's motion. Thus, his motion to amend is not futile and will be granted.
Accordingly, all further citations to "Arington's complaint" in this opinion refer to his amended complaint. ( See Docket # 38.)
III. FACTS
As this is a Rule 12(c) motion for judgment on the pleadings, the Court must accept as true all well-pleaded facts alleged in the complaint and draw all reasonable inferences in favor of Arington, the nonmovant. Forseth v. Village of Sussex, 199 F.3d 363, 368 (7th Cir. 2000).
First, the County issued Arington a building permit in a manner that violated state law. (Compl. ¶ 5, 17.) Specifically, the County circumvented state building codes by retaining local control over building inspections, a practice which allowed Arington's building to be erected with "sub-standard construction [and] multiple defects." ( Id. ¶ 17.) The County did this in order to protect its "favored relationship" with a contractor named Gary Myers, and it cited an irrelevant zoning ordinance to Arington to justify its actions. ( Id.)
Second, the County attempted to help Myers by improperly interfering in civil litigation between Arington and Myers. ( Id. ¶ 20.) In particular, the County "played a role in soliciting the State Fire Marshal's office" to inspect Arington's building "as part of [this] civil litigation," apparently to Arington's disadvantage. ( Id.)
Third, the County attempted to force Arington to "rescind [a] lawfully filed `Notice of No Trespass' document" by threatening to "remove [a] special exception for [Arington's] business operations." ( Id. ¶ 23.) The County did this "in direct retaliation" for Arington's attempt to prevent the County from "interfering" with the litigation between him and Myers. ( Id.) Again, the County cited only an irrelevant zoning ordinance in support of its actions. ( Id.)
Fourth, the County ordered Arington to "remove signage" from his business which it had previously approved. ( Id. ¶ 18.) This was done in an "arbitrary and capricious manner," and the County "had direct knowledge of many other similar so[-]called non-conforming situations in which the [C]ounty had selectively chosen not to act in the same manner." ( Id.)
IV. STANDARD OF REVIEW
A Rule 12(c) motion for judgment on the pleadings is treated the same way as a Rule 12(b)(6) motion to dismiss, which means that it will be granted only if it appears beyond doubt that the plaintiff cannot prove any set of facts that would support his claim for relief. Forseth, 199 F.3d at 368. The Court accepts as true all well-pleaded facts alleged in the complaint and draws all reasonable inferences in favor of the plaintiff. Id.
Moreover, because Arington is pro se, the Court construes his complaint liberally. Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001). The essence of liberal construction "is to give a pro se plaintiff a break when, although he stumbles on a technicality, his pleading is otherwise understandable." Hudson v. McHugh, 148 F.3d 859, 864 (7th Cir. 1998).
V. DISCUSSION
Arington's complaint contains a slew of constitutional, statutory, and common-law claims. The Court will address each of them in turn, starting with the claims that are sufficient to survive the County's motion and ending with those that must be dismissed.
A. Arington's Equal Protection Claim, Substantive Due Process Claim, and 42 U.S.C. §§ 1985 and 1986 Claims Survive
Arington alleges that the County's actions deprived him of equal protection of the law under the Fourteenth Amendment. Arington, a white male, does not claim that he was "singled out because of race or some other trigger of invidious discrimination," Tuffendsam v. Dearborn County Bd. of Health, 385 F.3d 1124, 1127 (7th Cir. 2004), and thus the Court assumes that he is proceeding under the "class of one" theory of equal protection approved by the Supreme Court in Village of Willowbrook v. Olech, 528 U.S. 562 (2000). To succeed on this theory, Arington must ultimately show that (1) the County intentionally treated him differently from others similarly situated; and (2) it had no rational basis for doing so. Tuffendsam, 385 F.3d at 1127. Arington has alleged facts which, if proven, could satisfy both elements; namely, that the County (1) made him remove "non-conforming" signage while ignoring similarly situated offenders; (2) in an "arbitrary and capricious manner." (Compl. ¶ 18.) Thus, the County is not entitled to judgment on this claim.
Arington also invokes 42 U.S.C. § 1985, which imposes liability on those who conspire to deprive others of equal protection of the law, and 42 U.S.C. § 1986, which imposes liability on anyone who has knowledge of a § 1985 conspiracy, has the power to prevent its implementation, and neglects to do so. The County argues that these claims must fail because they "require some form of a racial or other class-based invidiously discriminatory animus" — in other words, the County implies that §§ 1985 and 1986 claims cannot be based on a "class of one" theory. ( See Docket # 31 at 10.) However, the Seventh Circuit has not yet decided whether a "class of one" theory can be used in this way. Thus, it is not "beyond doubt" that Arington cannot prove any set of facts to support these claims, Forseth, 199 F.3d at 368; just because Arington's claims are novel does not mean they are doomed. The County is therefore not entitled to judgment on these claims.
The County also contends that because Arington has sued only the County and its officials, his §§ 1985 and 1986 claims are untenable under the "intracorporate conspiracy" doctrine. This doctrine provides that when government officials act within the scope of their employment, they are considered part of a single entity and thus cannot be liable for a "conspiracy" under §§ 1985 or 1986. Wright v. Ill. Dep't of Children Family Serv., 40 F.3d 1492, 1508 (7th Cir. 1994). However, Arington has sued County officials in their individual as well as official capacities, which (keeping in mind the duty to construe pro se complaints liberally) could imply that at least some of their actions were outside the scope of employment. Thus, the intracorporate conspiracy doctrine cannot defeat Arington's §§ 1985 and 1986 claims at this early stage.
Arington also alleges a substantive due process claim under the Fourteenth Amendment and 42 U.S.C. § 1983. To succeed on this claim, he must ultimately prove (1) that the County arbitrarily and irrationally deprived him of a property interest; and (2) that the County committed a separate constitutional violation or that state-law remedies are inadequate. E.g., Draghi v. County of Cook, 184 F.3d 689, 694 (7th Cir. 1999). Arington repeatedly alleges that the County's actions were "intentional," "arbitrary," and for the purpose of violating his "property rights" ( see Compl. ¶¶ 7, 17, 18, 23, 25), thus satisfying the first element of the claim. And, as explained above, he alleges enough facts to support a "separate . . . violation" of the Equal Protection Clause, thus satisfying the second element. Accordingly, the County is not entitled to judgment on Arington's substantive due process claim.
B. The Rest of Arington's Claims Do Not Survive
Arington claims that the County violated 18 U.S.C. §§ 241 and 242, which govern conspiracies against civil rights and deprivations of rights under color of law. However, these are criminal statutes which do not provide for a private right of action, e.g., Lerch v. Boyer, 929 F.Supp. 319, 322 (N.D. Ind. 1996) (collecting cases), and thus Arington's claims under them cannot proceed.
Arington also invokes 42 U.S.C. §§ 1981 and 1982. However, these statutes only address race discrimination, e.g., Morris v. Office Max, Inc., 89 F.3d 411, 413 (7th Cir. 1996), which Arington does not allege. Thus, the County is entitled to judgment on these claims.
Arington makes two claims that he labels as "tortious interference" claims. The first alleges that the County interfered with a contract between Arington and the federal government, namely a United States Land Patent of which Arington is the lawful assignee. (Compl. ¶ 19.) Arington cannot succeed on this claim, as a federal land patent cannot be used as a shield against the actions of state and local government. See Leach v. Manning, 105 F. Supp.2d 707, 713-14 (E.D. Mich. 2000) ("a federal land patent . . . does not exempt property from state and local regulation"); see also Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 676 (1974) ("Once patent issues, the incidents of ownership are, for the most part, matters of local property law."). Arington's second "tortious interference" claim is based on the County's alleged interference in his litigation with Gary Myers. However, Indiana only recognizes an action for tortious interference with a contract, see, e.g., National City Bank, Ind. v. Shortridge, 689 N.E.2d 1248, 1252 (Ind. 1997), and Arington does not provide (nor is the Court aware of) any authority creating an action for tortious interference with a lawsuit. Thus, both of Arington's "tortious interference" claims fail as a matter of law.
Arington also claims that the County violated his "property rights" under Article I, Section 1 of the Indiana Constitution. But Arington cites an outdated version of the Constitution, and the current version makes no mention of "property rights." See Ind. Const., art. I, sec. 1. Moreover, his incorrect recitation of the constitutional text is not accompanied by any explanation of how that text applies to the facts of his case. Because Arington does not even begin to explain how he could succeed on his claim under the Indiana Constitution, the County is entitled to judgment on that claim.
C. Miscellaneous Issues
A few loose ends remain. First, Arington names both "The DeKalb [C]ounty [B]uilding and [P]lanning [D]epartment" and "DeKalb County Commissioners" as defendants. ( See Compl.) But these entities are merely "vehicle[s] through which the [county] government fulfills its policy functions," not proper party defendants. Jones v. Bowman, 694 F.Supp. 538, 544 (N.D. Ind. 1988); Gillespie v. City of Indianapolis, 13 F. Supp. 2d 811, 816 (S.D. Ind. 1998). Any claim Arington may have against them is really a claim against the County, and thus they will be dismissed. Similarly, Arington sued several County officials in their official capacities, but "[a]n official capacity suit is the same as a suit against the entity of which the officer is an agent." DeGenova v. Sheriff of DuPage County, 209 F.3d 973, 974 n. 1 (7th Cir. 2000). Since the County is a named defendant, these official-capacity claims are redundant and will be dismissed.
Second, the County objects to Arington's invocation of 42 U.S.C. § 1988, a statute providing for awards of attorney's fees, on the grounds that Arington is pro se and therefore cannot recover fees. See Craig v. Cohn, 80 F. Supp. 2d 944, 948 (N.D. Ind. 2000). This objection is premature; conceivably, Arington might hire counsel later in this case and eventually become entitled to recover fees. Therefore, the County is not entitled to judgment on Arington's § 1988 claim.
Finally, the County argues that its officials are immune from liability on any Indiana state-law claims. However, since none of Arington's state-law claims survive the County's motion for judgment on the pleadings, there is no need to consider this argument.
VI. CONCLUSION
For the reasons given above, Plaintiff's motion to amend (Docket # 35) is GRANTED, and the Clerk is ORDERED to show his proposed amended complaint (Docket # 38) filed. Defendants' motion to strike (Docket # 46) is DENIED.Defendants' motion for judgment on the pleadings (Docket # 30) is GRANTED in part and DENIED in part. All of Plaintiff's claims against Defendants "DeKalb County Building and Planning Department" and "DeKalb County Commissioners" are DISMISSED, as those defendants are not proper parties. All of Plaintiff's official-capacity claims against Defendants Sally Rowe, Brad Stump, Bill Walters, Carlos Witaker, Chuck Ort, and James McCanna are DISMISSED, as those claims are redundant of his claims against Defendant DeKalb County.
That leaves the following Defendants still in the case: Sally Rowe, Brad Stump, Bill Walters, Carlos Witaker, Chuck Ort, and James McCanna, all in their individual capacities only; and DeKalb County. As to those defendants, their motion for judgment on the pleadings is GRANTED on Plaintiff's claims under: (1) the Indiana Constitution; (2) 18 U.S.C. §§ 241 and 242; (3) 42 U.S.C. §§ 1981 and 1982; and (4) any claim of "tortious interference." Their motion is DENIED as to Plaintiff's (1) "class of one" equal protection claim; (2) 42 U.S.C. §§ 1985 and 1986 claims; and (3) substantive due process claim.