United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB District Judge.
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.
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.
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.
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.
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
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.
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
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.
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.
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
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.
https://wcca.wicourts.gov/courtRecordEvents for case no.
2016-CV-00138 (visited Feb. 16, 2017).
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”
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.
MOTIONS TO DISMISS
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”).
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
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