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Gruber v. City of Portage

United States District Court, W.D. Wisconsin

July 21, 2017

JOHN GRUBER, Plaintiffs,
v.
CITY OF PORTAGE, CITY OF PORTAGE POLICE DEPARTMENT, SHAWN MURPHY, KENNETH MANTHEY and KLAUDE THOMPSON, Defendants.

          OPINION AND ORDER

          BARBARA B. CRABB DISTRICT JUDGE

         Pro se plaintiff John Gruber brought suit under 42 U.S.C. § 1983 and Wisconsin state law against various individuals and entities in Columbia County, Wisconsin for allegedly violating his rights in their efforts to condemn his property to make way for a new construction project. In an order entered on February 27, 2017, dkt. #68, I granted defendants' separately-filed motions to dismiss. I concluded that plaintiff could not challenge the condemnation of his property because he had not exhausted his remedies under state law. Williamson County Regional Planning Comission v. Hamilton Bank, 473 U.S. 172, 193-94 (1985) (federal courts cannot adjudicate § 1983 claims directly related to land dispute until property owner exhausts available state remedies for compensation). However, it appeared that plaintiff may have intended to raise separate federal claims under the equal protection clause that defendants had subjected him to various types of harassment leading up to the condemnation. Although those claims were not subject to the exhaustion requirement, plaintiff had not provided fair notice of the claims as required by Fed.R.Civ.P. 8, so I dismissed the claims without prejudice and gave plaintiff an opportunity to amend the complaint with respect to those claims only.

         Plaintiff has filed an amended complaint, dkt. #71, which defendants City of Portage, City of Portage Police Department, Shawn Murphy, Kenneth Manthey and Klaude Thompson seek to dismiss under Fed.R.Civ.P. 12(b)(6) on the ground that plaintiff continues to allege wrongdoing and injuries solely related to the condemnation of his property. Dkt. #78. (Although the other defendants also filed motions to dismiss the amended complaint, the motions are moot because I granted the parties' stipulations of dismissal with respect to those defendants. Dkt. ##90 and 94.) Although plaintiff has not filed a response to defendants' challenges to his amended complaint, he has remained active in this case and does not appear to have abandoned his claims against defendants. The Court of Appeals for the Seventh Circuit has held that a plaintiff may rely on his pleadings, and “[a] pro se plaintiff who has alleged well-pled facts supporting a claim for relief can withstand dismissal without responding to a motion to dismiss.” Curtis v. Bembenek, 48 F.3d 281, 287 (7th Cir. 1995) (A “plaintiff can simply rest on the assumed truthfulness and liberal construction afforded his complaint.”).

         For the reasons discussed below, defendants' motion to dismiss will be denied in part and granted in part. Although many of the allegations in the amended complaint fail to state an equal protection claim upon which relief may be granted, I conclude that plaintiff has stated an equal protection claim against defendants City of Portage, Murphy, Manthey and Thompson for their actions associated with ticketing and searching cars parked on or near plaintiff's business and allegedly unnecessary searches of the property. Defendant City of Portage Police Department will be dismissed because it is not a suable entity.

         For the sole purpose of deciding this motion, I accept as true the following facts alleged in plaintiff's amended complaint.

         ALLEGATIONS OF FACT

         For the past 32 years, plaintiff John Gruber has been the owner and operator of Gruber Automotive at 208 E. Edgewater Street in Portage, Wisconsin. The property is located adjacent to the Historic Portage Canal System, which Columbia County has selected, along with adjoining properties, for the construction of new government buildings as part of an economic development plan.

         Defendants City Administrator Shawn Murphy, City of Portage Police Department, Chief of Police Manthey and Officer Klaude Thompson conspired with Columbia County officials and some private property owners to defraud taxpayers and enrich themselves unjustly with federal and state funds targeted for the redevelopment plan. On November 1, 2015, Murphy and Manthey examined vehicles in a parking lot across the street from Gruber Automotive. Plaintiff parked his customers' cars in the lot while the cars awaited repair. The lot was public and unrestricted. Pursuant to orders from Murphy and Manthey, police officers, including defendant Thompson, tagged the vehicles registered to plaintiff and his customers with a notice stating that the vehicles would be towed as “junk” if they were not moved from the lot. Only vehicles associated with plaintiff's business were targeted. The practice continued on a weekly basis through February 15, 2017, resulting in lost revenues of $3, 000 a week from lost customers, hiring extra employees to move cars and disruptions in repair work. In addition, in December 2015, Thompson and other officers towed several vehicles that were legally parked at plaintiff's business during inclement weather and made plaintiff pay the towing and storage fees.

         Since 2006, plaintiff has leased storage and yard space at 1000 Jefferson Street in Portage from FAL Group, Inc. to operate part of his business. In March 2015, defendant Shawn Murphy, the Portage City Administrator, ordered the city attorney to reclassify the zoning on the Jefferson Street property so that a conditional use permit would be necessary to run an automotive repair business. FAL Group incurred substantial fees in permit violations that it passed along to plaintiff. The property was not subject to a zoning or business ordinance before the redevelopment project began. In October 2015, Murphy and other city representatives told Janet Atkins, the president of FAL Group, that Gruber Automotive was a magnet for “bottom feeders, ” created a “bad image” for Portage's economic development project and “must go.” Dkt. #71, ¶ 7.

         Beginning in December 2015, plaintiff observed Portage police vehicles driving past the Jefferson Street property at all hours. In March 2016, one of plaintiff's employees saw defendant Murphy and a police officer searching vehicles parked at the Jefferson Street property and alerted plaintiff, who confronted them and asked them to leave. Murphy stated that “Portage is my city and I can do whatever I want, ” dkt. #71, ¶ 9, and the police officer put his hand on his gun. The two left with some paper documents that they had removed from the vehicles. (Plaintiff describes an earlier incident involving another man allegedly shot by the police, but I have not included those allegations because they are not relevant to plaintiff's claims.)

         Also in March 2016, a Portage police officer dumped garbage onto the Jefferson Street property and broke glass in some of the vehicles parked there. He took pictures and used them as evidence against plaintiff. Although plaintiff reported the incident, no investigation took place.

         In April 2016, FAL Group was issued a zoning ordinance violation for having “junk” vehicles on the Jefferson Street property without a conditional use permit. Atkins received several more citations for violations of ordinances related to garbage, inoperable vehicles and tall grass. Although plaintiff tried to resolve the issue for Atkins, who is often out of town, FAL Group had to pay a permit fee and fines to resolve the ordinance violations.

         In April 2016, defendant Murphy appeared with water utility employees and threatened to shut off the water at the Jefferson Street property until plaintiff allowed Murphy, Manthey and Thompson to search the property to see whether it was compliant with drinking water requirements. In May 2016, Murphy, Manthey, Thompson and water service employees arrived unannounced to search the property, and the water was turned back on within a few days.

         Between May 16, 2016 and July 2016, defendants Murphy, Manthey and Thompson ordered city employees to block the streets for a subcontractor's dump trucks carrying toxic sediment dredged from the Portage Canal, which is adjacent to plaintiff's Edgewater Street property, and to assist the subcontractor in illegally dumping the sediment at the county fairgrounds seven blocks away. Plaintiff observed the overloaded dump trucks and a pumping barge splash contaminated substances on his Edgewater Street property. Plaintiff reported this to the construction site manager who said that it would be cleaned up, but the substances likely hurt the value of his property. In addition, the removal and transportation of toxic sediment from the canal disrupted plaintiff's business operations and caused him to lose revenue.

         One morning in December 2016, defendants Murphy and Manthey drove past the Edgewater Street property repeatedly while defendant Thompson parked a police cruiser in front of Gruber Automotive's garage doors for more than two hours. They were conducting electronic surveillance of plaintiff's cell phone to collect telephone numbers “targeting plaintiff's business activities.” Dkt. #71, ¶ 27. Another morning in January 2017, Murphy and Manthey ordered a police lieutenant to search plaintiff's business at Edgewater Street, supposedly because an unknown 911 call was placed from that address. Because the call was made from an employee's cell phone that was turned off, plaintiff surmised defendants made the call themselves as a ruse to enter and search his business without a warrant.

         These activities resulted in plaintiff's losing customers who feared being arrested or harassed by the police.

         OPINION

         A. Le ...


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