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Gruber v. Columbia County

United States District Court, W.D. Wisconsin

February 27, 2017

JOHN GRUBER, Plaintiffs,


          BARBARA B. CRABB District Judge.

         In this civil action for declaratory and injunctive relief brought under 42 U.S.C. § 1983 and Wisconsin state law, pro se plaintiff John Gruber is suing various individuals and entities in Columbia County, Wisconsin, for allegedly violating his property rights in their efforts to condemn his property to make way for a new construction project. After plaintiff refused to sell his property voluntarily, defendant Columbia County filed a petition in the Circuit Court for Columbia County to acquire it by condemnation (or eminent domain), and that action is pending. Plaintiff contends that during the condemnation process, defendants violated his federal constitutional rights under the takings clause, the due process clause, the equal protection clause and the Fourth Amendment (which prohibits unreasonable searches and seizures). In addition, he contends that defendants violated the takings clause of the Wisconsin State Constitution and Wis.Stat. ch. 32.

         Before the court are three separate motions to dismiss this case under Fed.R.Civ.P. 12(b)(6) and three separate motions for sanctions under Fed.R.Civ.P. 11 filed by: (1) defendants City of Portage, City of Portage Police Department, Shawn Murphy, Kenneth Manthey and Klaude Thompson (the city defendants), dkt. ##5 and 42; (2) defendants Columbia County, Columbia County Board Ad Hoc Building Committee, Vern Gove, Kirk Konkel, Joseph Ruf III, Krista Miller, John Miller, Miller and Miller LLC, Mark Hazelbaker, Kasieta Legal Group LLC and Columbia County Condemnation Committee Chairman Todd Bennett (the county defendants), dkt. ##8 and 37; and (3) defendant J.H. Findorff and Sons, Inc., dkt. ##14 and 52.

         Defendants' motions to dismiss plaintiff's complaint will be granted. Under the ripeness doctrine for constitutional property rights (or “takings”) claims, federal courts cannot adjudicate § 1983 claims directly related to a land dispute until the property owner exhausts available state remedies for compensation. Williamson County Regional Planning Comission v. Hamilton Bank, 473 U.S. 172, 193-94 (1985). Because I conclude that plaintiff's takings, due process and unreasonable search and seizure claims relate directly to the condemnation action pending in state court, they are not ripe for review by this court. Plaintiff's complaint will be dismissed without prejudice as to those claims for his failure to exhaust state remedies for just compensation.

         Although the Williamson County doctrine would not apply to an equal protection claim involving conduct and an injury not solely related to the condemnation of plaintiff's property, plaintiff has not pleaded enough facts to allow me to make that determination in this case. Accordingly, I will dismiss plaintiff's complaint as to the equal protection claim without prejudice because it violates federal pleading requirements. However, I will give plaintiff an opportunity to file an amended complaint as to that claim that fixes the problems described in this order and otherwise complies with the Federal Rules of Civil Procedure.

         I am dismissing plaintiff's complaint as to his claims under the Wisconsin Constitution and Wis.Stat. ch. 32 under 28 U.S.C. § 1367(c). Because plaintiff and defendants appear to be citizens of Wisconsin, jurisdiction over plaintiff's state law claims depends on the requirements for supplemental jurisdiction in § 1367, which applies when the state and federal claims arise out of the same facts.

         Finally, the motions for sanctions filed by defendant Findorff and the city and county defendants will be denied because defendants have not shown that sanctions are warranted in this case.

         For the sole purpose of deciding these motions, I accept as true the following facts alleged in plaintiff's complaint or included in the public court record in the condemnation action. Ennenga v. Starns, 677 F.3d 766, 773 (7th Cir. 2012) (in deciding a motion to dismiss, court may take judicial notice of “acts readily ascertainable from the public court record and not subject to reasonable dispute.”).


         For the past 30 years, plaintiff John Gruber has been the owner and operator of Gruber Automotive at 208 E. Edgewater Street in Portage, Wisconsin. Gruber Automotive sits on property located adjacent to the Historic Portage Canal System, which defendant Columbia County and defendants Columbia County Board Members have selected, along with adjoining properties, for the construction of new government buildings.

         Defendant Vern Gove of the Board of Supervisors for Columbia County created the Ad Hoc Building Committee specifically to acquire the properties needed for the construction project and appointed defendant Kirk Konkel as chairman of the committee. Defendant Konkel then appointed Gove, Corporation Counsel Joseph Ruf and Krista Miller, a lawyer, to assist him. Ruf suggested that the county hire another lawyer, defendant John Miller, and defendant Miller and Miller LLC to assist with the acquisition of the properties, and the committee agreed. The lawyers were hired without a written contract, bids, discussion about costs or an explanation of whether taxpayer funds were available. On April 15, 2015, the lawyers notified plaintiff that the county wanted to purchase his property for $237, 000.00, but plaintiff declined the offer.

         On March 29, 2016, a deputy sheriff served plaintiff with a document entitled “Jurisdictional Offer, Sec. 32.06, Wis. Stat., ” which stated that defendant Columbia County was offering to purchase plaintiff's property for $195, 000.00. Because plaintiff refused to sell his property voluntarily, defendant Columbia County filed a condemnation (or eminent domain) petition in the Circuit Court for Columbia County, case no. 2016-CV-00138, on April 25, 2016, through their counsel, defendants Mark Hazelbaker and Kasieta Legal Group LLC. The circuit court ordered defendant Columbia County Condemnation Commission to determine the value of plaintiff's property, and on August 4, 2016, the committee chairman, defendant Todd Bennett, issued a written decision.

         During the valuation process, neither Bennett nor the county prepared or submitted a relocation plan to the Wisconsin Department of Administration for approval, as required under Wis.Stat. § 32.25 and Wis. Admin. Code § 92.001. Blanc v. City of Janesville, 2013 WI.App. 94, ¶ 5 and n.1, 349 Wis.2d 527, 835 N.W.2d 292 (summarizing relocation plan approval process). The circuit court entered an order regarding the condemnation committee's decision and plaintiff appealed. Although that appeal was denied, a review of the public record of the circuit court case shows that the condemnation action is pending and scheduled for trial in March 2017. for case no. 2016-CV-00138 (visited Feb. 16, 2017).

         The former mayor of Portage (whom plaintiff refers to as “Tierney”) “appointed or assigned” defendants City Administrator Shawn Murphy, City of Portage Police Department, Chief of Police Manthey and Officer Klaude Thompson (the city defendants) to assist the county by trying to force plaintiff to sell his property at below market value. The city defendants regularly issued plaintiff unjust ordinance violations, arrested plaintiff's customers and issued them tickets, towed plaintiff's vehicles and planned a raid to evict plaintiff and “shoot” him.

         The county's proposed construction project includes the dredging of the Portage Canal. Defendant J.H. Findorff and Sons, Inc. is the general contractor for the project and is responsible for removing “toxic sludge” from the canal. Between approximately March and July 2016, contractors hired by Findorff dumped toxic sediments containing PCBs, mercury, lead and other metals taken from the canal on or near plaintiff's property during the night with the protection of Chief Manthey and Officer Thompson. Findorff also harmed plaintiff's business with “continuous heavy construction equipment traffic, road closures, construction accidents [and] seizure of parking places for customers.” Dkt. #1, ¶ 6.



         “A motion under Rule 12(b)(6) tests whether the complaint states a claim on which relief may be granted.” Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012). To survive a Rule 12(b)(6) motion to dismiss, the complaint must comply with Rule 8(a)(2) by providing “a short and plain statement of the claim showing that the pleader is entitled to relief” that gives defendants “fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). See also Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (complaint must allege sufficient facts to state claim to relief that is “plausible on its face”). When considering a motion to dismiss for failure to state a claim, a court must accept as true the well-pleaded factual allegations in the complaint and draw all reasonable inferences in favor of the plaintiff. Alam v. Miller Brewing Co., 709 F.3d 662, 665-66 (7th Cir. 2013); Yeksigian v. Nappi, 900 F.2d 101, 102 (7th Cir. 1990). Further, in addressing any pro se litigant's complaint, the court must construe the complaint liberally. Haines v. Kerner, 404 U.S. 519, 521 (1972); Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1027 (7th Cir. 2013) (federal pleading standards for pro se plaintiffs are “considerably relaxed”).

         Plaintiff broadly asserts that defendants violated his substantive and procedural due process rights, in violation of the Fifth Amendment; denied him equal protection, in violation of the Fourteenth Amendment; conducted an unreasonable seizure in violation of the Fourth Amendment; violated the takings clause of the Fifth Amendment and the Wisconsin State Constitution; and failed to follow the requirements in Wis.Stat. § 32.25 for submitting a relocation payment and assistance services ...

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