Geraldine Sterling v. Village of Maywood

WOOD, Bеfore SPRECHER and Circuit REYNOLDS, Chief Judges, District Judge.*

SPRECHER, Judge. Circuit appeal of This raises the issue what liabil- ity, any, employees or its incur under 42 U.S.C. Four- employees when of teenth Amendment municipality’s terminate request a tenant’s water service at the subsequently the landlord and decline to promises service after the reinstate tenant pay depos- for future service and offers guarantee payment. such I four minor chil- is mother of May- dren,1 and resides are the wood, (Village). Defendаnts Illinois Kitch, itself; Manager; Mark Village, Carter, assist- and administrative Edward service; Leo charge of water ant Village’s Graham, employee Plaintiff’s complaint2 alleged in Count 13 that she entered into an oral lease with Mr. * Judge Reynolds, of court John W. Since district dismissed District Chief Wisconsin, action, by sitting desig- complaint for failure state cause District Eastern accept allegations. as true its factual nation. Equipment, Inc. v. Food Ma Walker Process are also Sterling’s children four minor 1. Mrs. chinery Corp., & Chemical 382 U.S. 174— suit. plaintiffs in this as included Hamp response plaintiffs’ actions in since all City Chicago, 484 F.2d ton v. performed were denied, 1973), cert. Sterling, use the ex- will henceforth Mrs. pression “plaintiff” to her alone. reference page note single Melvin Ward to rent a and Mrs. water service reinstated and to effect family dwelling Village. located promised for future water service understanding Pursuant deposit guarantee pay- and offered lease, building moved into the ment. Defendants denied reasons; 22,1976. landlords, July children on on quest for for reinstatement three her, day, attempted the next to evict but paid because landlords not their were unsuccessful. bill, because lacked a written lease requested and because the landlords had 5, 1976, August On the landlords called termination. Plaintiff’s water service was Village’s Water Department and re- days, not reinstated for four and it then quested that water service be terminated at provided was because the landlords building where was residing. agreed they owed $100 $439.06 day, August 6, a The next meter reader Village Village from the went resi- facts, plaintiff on sought Based these a suggested go dence and declaratory judgment damages against and Village place Hall and the water service private defendants Village and the following day plaintiff in her name. The 4 on based 42 19833 bill U.S.C. and the § received a water at her due residence ad- process clausе of the stating Fourteenth Amend- “occupant” dressed that $439.06 25, 1976, ment.5 The district was due court August past on for reasoned that “[pjlaintiffs attempted service. have The bill also contained a note to establish a sug- federal claim gesting occupant place essentially her out what is name held, problem” on records to avoid termina- landlord and tenant and sua sponte, tion of service. allegations proper- “do not ly upon state a claim which relief can be 9, August Department, On the Water granted 1983, 1985(3) under 42 § U.S.C. or § without notice to terminated her the Fourteenth Amendment . . . water service. Plaintiff went to the Vil- appeals Plaintiff from the district court’s lage out why Hall find her service had judgment. response plain- been discontinued. In Carter and Gra- inquiry, tiff’s defendants II Village policy that was explained ham argument first is that the Plaintiff’s upon request terminate service process rights violated her due being paid. bill is defendants whose name the person in they to have her when terminated sought at that time Plaintiff 1413, Chicago provides: 39 471 Ricci v. section That Exchange, (7th Merchantile 447 F.2d 715 who, Every person any under color stat- 1971), Cir. aff’d 409 U.S. ute, ordinance, custom, regulation, usage, or addition, L.Ed.2d 230 In our factual any Territory, subjects, State or or causes inquiry alleged is limited to those facts subjected, to be citizen United therefore, complaint, and we cannot consider person jurisdiction States or other within the depositions' by par- the various included both deprivation rights, privi- thereof appeal. ties in the record Kirke v. Texas by leges, or immunities secured the Constitu- Co., F.2d Cir. laws, party shall tion be liable to the law, injured equity, in an action suit plaintiff’s complaint 3. Count II of awas claim proceeding proper for redress. 1985(3) alleging conspiracy under 42 § U.S.C. 42 U.S.C. S between her landlords to de- prive rights. her of her That claim also was jurisdiction 5. The district court’s over indi- by dismissed the district court. Plaintiff raises on 28 vidual defendants was based U.S.C. We, therefore, no as to issue § claim. 1343(3) jurisdiction § over the contesting assume that she is not the district based 28 U.S.C. judgment point. court’s on that benefit, interest in a property To have a opportunity and an prior notice without person clearly must have more than an “hearing.”6 rea- type of some it. need or desire for He must abstract that, under although sons expectation have than a unilateral more service, once provide water obligation tо must, instead, have legiti- of it. He legitimate has a so “a user chooses to do it. mate of entitlement claim service ab- continue of entitlement claim . . .” cause sent sufficient the Court in standard applying Guarino, F.Supp. Roger are cre interests property structed opinion, 549 aff’d without (E.D.Pa.1976), Constitution, but rather ated 1977) added).7 (3d (emphasis F.2d by existing rules and “defined “created” are from inde plaintiff’s understandings the of stem an evaluating In merits that or contention, be with law.” Id. Sec our concern must such as state pendent source 1 134, 15 concluding Kennedy, for v. 416 U.S. some basis exists Arnett whether also (1974) 1633, 1643, 52, a 40 L.Ed.2d 15 role as tenant-water user 94 that S.Ct. Lopez, v. 419 U.S. constitutionally opinion); Goss protected proper- (plurality a creates 729, 725 565, 574-75, 42 L.Ed.2d 95 S.Ct. service. To interest in continued water ty two sources (1975). suggested The Court issue, rely on the resolve state stat property interests: that create analysis “property” of Supreme Court’s 8 564, 577, express or Roth, implied— ‍‌‌​​​‌​​​​‌​​​‌‌‌​​​‌​‌​​​‌‌‌​‌‌​‌​​‌‌‌​​​​‌​‌‌‌‍utes v. U.S. of 408 Regents Board contracts — the agency individuals and some of 2701, 2709, (1972), 548 between 33 L.Ed.2d 92 S.Ct. 92 state.9 408 U.S. S.Ct. reasoned: where the Court Guarino, 1375, 1983, Koger F.Supp. (E.D. 412 v. 1386 under 42 U.S.C. 6. To state a claim aff’d, (3d 1976), 1977); Pa. 549 F.2d 795 Cir. must demonstrate both there has Hamblin, (D.Minn.1972). Lamb v. 57 F.R.D. 58 action been state action and that that has de- right. Our as a tenant water prived a decision of constitutional Ad- user, Co., 169, 144, process right not have 90 does a due v. 398 S.Ct. ickes Kress & U.S. 1598, (1970). way in this in no service case conflicts 26 142 There is no dis- analysis with cases. pute those here action Water of Department action. The constituted state During pendency appeal, of this the Su- deprived has been issue whether preme Memphis Light, Court decided &Gas any rights. Craft,------U.S.---, Division v. Water 98 S.Ct. 1554, case, (1978). 30 In 56 L.Ed.2d proposi- several for the municipal 7. Plaintiff cites cases of a Court held that customer utility possess constitutionally company protectible property tion that users has a in- property protected pro- interest continued ser- and thus terеst in continued some disputes almost all of those cases deal resolving billing vice. must be cedures utility right of provided by opinion, with the “customer” —the utility. The Craft utility directly person paying however, bill rights nothing does to aid claim utility utility opposed to of the this case because she is not customer of the —as Light, Memphis v. Gas & Maywood’s Department. user. See Craft As Water 684, Div., (6th 1976), Water F.2d 687 Cir. 534 opinion, this is made clear plaintiff text of since 1090, 1098, aff’d, 429 97 51 L.Ed.2d U.S. S.Ct. no relation with the has contractual Ohio, Palmеr v. Columbia Gas 535 provides Village, no with an statute Inc., 153, (6th 1973); 479 156 Condos F.2d Cir. entitlement, upon has no basis which to Inc., Corp., F.Supp. v. Elec. 400 ta Vermont deprivation claim that there been 358, (D.Vt.1975); Donnelly City 365 v. of Eure property meaning Fourteenth (D.Kan. ka, 64, 1975); F.Supp. v. 399 67 Limuel Amendment. Co., 964, F.Supp. Southern Union Gas 378 965 262, 254, Goldberg Kelly, v. U.S. 90 8. See 397 (W.D.Tex.1974); Bronson v. Edison Co. Consol. 1011, (State (1970) 25 Wel- S.Ct. L.Ed.2d 287 F.Supp. (S.D.N.Y.1972); of N. 447 350Y. Code). fare Colorado, v. 350 Hattell F.Supp. Public Service Co. (D.Colo.1972); Stanford c. Gas Sindermann, 593, 600, 240 Perry v. Co., (D.Kan.1972). F.Supp. Service .346 (1972) (exprеss 33 L.Ed.2d 570 Weir, (N.D. F.Supp. .317 see v. But Davis policy contract or de facto tenure sufficient to Ga.1971), aff’d, (5th 1974); F.2d Cir. interest). property create view, plaintiff In our has no contractual process right due by defendants’ termina- statutory basis for legitimate claim tion of her water service.10 of entitlement to continued water service. out that correctly points

First, plaintiff no contractual relation- that a held in other contexts courts have ship with constitutionally protected has a water user building ap- landlords ‍‌‌​​​‌​​​​‌​​​‌‌‌​​​‌​‌​​​‌‌‌​‌‌​‌​​‌‌‌​​​​‌​‌‌‌‍of her were the However, no continued service. interest in plicants were the entitle appeals has discussed court persons sought who that ser- Weir, 497 F.2d 139 In Davis ment issue. Thus, express vice. contractual interest 1974), municipality conceded exclusively. water service was theirs In duty provide that it had a appeal addition, plaintiff makes no claim that a de prior to terminat notice actual user understanding facto existed between her Thus, not have the Fifth Circuit did ion.11 Thus, Village. and the no implied there is ex interest property whether to consider Sindermann, property right. Perry v. Roger v. Guari F.2d at 143. isted. 497 33 L.Ed.2d no, affirmed supra, Third Circuit there determination that district court’s Second, plaintiff point provision can entitlement, but did so without was an in municipal the state’s laws or in the ordi- opinion. purports provide

nances that her with a legitimate claim of entitlement to water Three district courts have held that a fact, In service. the municipal water has a legitimate user entitlement precludes ordinance such a claim. In its continued water service when that service preamble, the purport ordinance does not is terminated due arrearages in the land- provide instead, all people; service to it Weir, lord’s bill. See F.Supp. Davis v. 328 is recognizes necessary that “it that the (N.D.Ga.1971); Guarino, 317 Roger v. 412 Village charge the inhabitants thereof for (E.D.Pa.1976) F.Supp. 1375 and Lamb v. the suрplied.” use thereof and the services Hamblin, (D.Minn.1972). 57 F.R.D. 58 With Ord.No. 68 32. To § effectuate this limited courts, all respect due to those we find their provision of the specifies ordinance reasoning unpersuasive applied as in this householder, “[ajny that property owner or Roger, case. In merely the court stated person desiring water or sewer ser- that an interest existed without explaining . . application vice . shall make the F.Supp. basis for entitlement. 412 at . . Thus, decisions, therefor . Id. at 32.1. 1386. In both of the other applicable provides slate law only dispositive significance courts attached claim of entitlement to those who have importance of water as “an absolute an application made for 321; water service. necessity of life.” F.Supp. 328 57 Since has neither a however, contractual nor F.R.D. at 61. analysis, That is statutory support claim, basis to her question irrelevant to the of whether there that deprived сonclude was not of is an the Supreme entitlement. As Court .^jpunurtuy 10. We are not of unmindful the inconvenience nearing regara tor a in every that our decision will cause individuals such as request for termination of service. plaintiff who in future will have their water However, disrupted why municipality without The reason service light ion, notice. part conceded point opin- of of this is our discussion III not made dear the court's opinion. disrup- city is it reasonable assume that that ordinance at issue period expressly provided of tion will for short days’ time. there for “three notice addition, we should note that our decision has to the owner or cutting tenant before off the saving municipal of the incidental effect supply utili- nonpayment water for of bills.” 497 potentially 139, Thus, ties tlie onerous of burden investi- municipality may F.2d 141 n. 2. gating providing some comply form of notice and have failed with its own ordinance.

1355 1090, 1976), aff’d, 429 U.S. 97 S.Ct. nature, not clear, is made has ,.e (1978). ^ basis L.Ed.2d in- of importance, weight is that is holdings those property whether a that determines terest Roth, two classifying applicants for service into Regents v. Board exists.12 interest “applicants contemplated whose 570-71, categories: 92 S.Ct. pre- Lopez, is encumbered with a service address (1972); Goss liable) 725 existing (for 42 L.Ed.2d which are not debt the decisions whose Nothing applicants residence lacks 144; anything plaintiff or in charges.” 497 F.2d at by plaintiff stigma such cited she, merely that us argued persuades that classification is F.2d at 690. Since has user, claim legitimate had a “suspect” water fun- and does not affect once water service continued interests, entitlement issue becomes damental requested landlord rationally is re- whether the classification service. pur- legitimate governmental to the lated unpaid We collecting water bills.

pose of Weir agree with the courts Craft and Ill a collection scheme argument is second Plaintiff’s entirely divоrces itself from the real- violated defendants ity legal accountability for the debt to reinstate they refused when rights involved, devoid logical relation to listed ‍‌‌​​​‌​​​​‌​​​‌‌‌​​​‌​‌​​​‌‌‌​‌‌​‌​​‌‌‌​​​​‌​‌‌‌‍Three reasons are service. unpaid the collection of from bills defendants’ complaint for the defaulting debtor. (1) the her water service: to reinstate fusal water bill -45; his failed landlord F.2d F.2d at at 144 690. Since residence; (2) the landlord at her alleged unpaid termination; (3) the and requested the why was one reasоn the defendants bill a lease. produce to written failed plaintiff service,13 reinstate her we refused allegations are plaintiff’s believe that We of her reverse the district court’s dismissal her a violation of both to state sufficient give complaint and remand case to process rights, and her due protection equal prove allega- opportunity an her plaintiff therefore, we, the judgment reverse tion. on issue. district court claim, process With to thе due regard protection argu- alleged that the defendants equal plaintiff to the regard With written ment, produce have that a her to lease before quired courts held two circuit we they would reinstate her service. As water service because refusal to reinstate plaintiff’s opinion, in this en- bill stated earlier pay the water the landlord has failed statutorily is to water service right equal titlement of the tenant’s is a violation Weir, dealing Village The ordinance 497 F.2d 139 defined. Davis v. protection. of water service states clear- 1974); Light, provision with (5th Memphis Craft . Division, person desiring . . “[a]ny ly 534 F.2d 684 & Water Gas although pay past We make clear that because ot the failure to landlord’s analysis present- have found the on entitlement water service. opinions to be ed in the three district court unpersuasive, way suggest we in mean 13. Since defendants reinstated water wrongly that those cases were decided on promised pay serviсe after the landlord rights issue of what merits. The a tenant has bill, portion unpaid water it is reasonable when the terminates water be- special to assume that the bill was a factor of pay cause landlord has failed to the water significance in the defendants’ not to decision allege us. bill is not before Plaintiff does not reinstate service. Village that the terminated her water service Department pleadings, service from the of Pub- and the we concludе ordinance applica- may . . . make well have very lic Works shall that defendants de- constitutionally applicant complied pro- “has of a prived plaintiff tion” and if provisions to water service when ordinances tected entitlement all Village, paid permit rejected summarily all her efforts rein- fees . . given shall then issued . Ord.No. her water service. She must be state added). allegations. (emphasis opportunity prove 32.1 32.1, plaintiff to section was According We reverse the district court’s dismissal she paid entitled to service if her fees complaint on the issue rein- complied with the ordinance’s other and remand the case for further statement requirements. alleged that she of- opinion. proceedings consistent with this pay deposit promised fered to fee and future which for all would IV satisfy requirements. seem to the fee reading on Based our Ordi- Since we have determined that nance, requirement is that in dismissing district cоurt erred completely provide application plaintiff completed plaintiff’s complaint, we must consider Although we for service. cannot determine whether the can continue ac complete pleadings appli- on the whether damages against tion for the defendant Vil ***********14 at plaintiff’s cation for water service resi- lage.2 The issue as originally argued by dence was file at in her briefs was whether Department, likely application provided Fourteenth Amendment an im previous for the service would have satis- plied remedy for the constitutional torts she Village’s requirement. Thus, fied the based alleged. Hundt, generally Suing ordinance, can see no Municipalities Directly under the Four why plaintiff reason was water ser- denied Amendment, teenth 70 Nw.U.L.Rev. 770 vice. Note, Damage Against Remedies

Municipalities for Violations, Constitutional only explanation offered de- 89 Harv.L.Rev. 922 Plaintiff relied supply their upon fendants for refusal the Fourteenth Amendment because lacked-a written lease. recognized Supreme Court’s nothing note Initially, we should that Pape, decision in Monroe v. requires that a (1961),

statute written lease precluded S.Ct. L.Ed.2d 492 in order to receive water service. provided suing Village her from the under 42 U.S.C. Village reg- even has some During pendency ap § this regarding however, leases—which defendants peal, ulation Supreme Court overruled com- given Monroe, have not the statutе’s prior holding its in and held that shown — service, “any person” municipalities mand that can receive longer are no immune from Village pro- at minimum should have statutory provision. suits under that Mo — opportunity prove Services, vided with an to Dep’t nell ‍‌‌​​​‌​​​​‌​​​‌‌‌​​​‌​‌​​​‌‌‌​‌‌​‌​​‌‌‌​​​​‌​‌‌‌‍v. of Social - - - -, her resi- she had a leasehold interest (1978).15 L.Ed.2d 611 Therefore, based on the We therefore now dence. consider the availa disposition part opin- 14. Given our III this 15. The explicit- Court in Monell did not discuss ion, ly that a cоnstitutional applied violation has been whether the decision should be retro- actively. alleged, plaintiff’s however, we assume that The sole remain- Court did state that "municipalities ing concern is with whether the can assert no reliance claim” to damages can immunity. be made liable for under the Four- absolute 98 S.Ct. at 2040. That (See appellant’s teenth Amendment. brief at suggest would comment seem to there prejudice by applying be no would created abovе, against affirm, For the reasons stated monetary relief bility section 1983. the district court’s dismissal of the defend- Village under and its dismissal Village portion ant complaint, ordi- According plaintiff’s plaintiff’s complaint dealing Count I De- Water nary employees with termination of water responsible for decision were partment but reverse the district court’s dismissal Plaintiff does her service. not reinstate portion dealing of that of Count I with the refusing to rein- the decision allege that not defendants’ refusal individual reinstate in accordance was made her service state water service remand to the or the policy official with proceedings for further district court con- addition, there opinion. with sistent “custom” or there was allegation PART, IN REVERSED IN AFFIRMED with Department “practice” PART. what conditions ter- under gard to when or be reinstated. Ab- service

minated under allegations, it is clear that sent such WOOD, Jr., HARLINGTON Circuit Monell, supra, plain- decision in Court’s Judge, concurring part and dissenting in section 1983. recover under cannot tiff part. the limits of defined explicitly Court The plain- This arises from the fact that case decision follows: days tiff was without water service for four against the language of 1983 read [T]he occupying a residence she was under histo- background legislative of the same It is doubtful circumstances. seen from her Congress compels the conclusion ry, tempo- claimed to complaint that she have a municipalities be held intend did not lease, rary disputed this was oral but official pursuant action liable unless endeavored, unwilling “landlord” who policy of some nature caused municipal policemen, eject of two the assistance tort. occupied premises. his as soon as she Plain- tiff, however, held steadfast several Thus, Monell, the Court supra at 2036. The then notified the weeks. landlord munici- rejected the idea that a expressly existing water terminate under section 1983 be liable pality could premises. Since he was respondeat superior. his theory of solely on a bill, surprisingly in arrears his was dicta since language While that department complied the water with his municipali- challenged a involved there suit request days. within a few (Stevens, id. at 2047 policy, see official ty’s beneficiary of the meantime was the obliged are concurring), we nonetheless J., service for about three weeks with- decide to the Court should follow it until arrangement her own hаving out made alle- contrary. under Since any obligation to having pay for it. assumed a theo- recover under she could gations reader, aby was meter Plaintiff advised that she superior, we hold respondeat ry of failed, reading Friday prior on a making his final a cause action to state has terminating the water at owner’s Village under 42 against damages department the water request, to contact 1983.16 U.S.C. § rejected theory respondeat ously ruling pending time ot the deci- suits at the damages against superior munici- apply suits decided to Mo- We therefore have sion. palities the Fourteenth Amendment. based on to this case. nell Illinois, 596, 605 v. 557 F.2d State McDonald Thus, plaintiff’s against suit recover cannot Our conclusion 16. essentially equal Village applies unaffected against damages being Supreme decision Monell. based Court’s the claim we view force previ- This court Amendment. the Fourteenth arrangements. make her own The nеxt day, Saturday, a written notice to come America, UNITED STATES department the water was received at Plaintiff-Appellant,

premises. nothing did until after the water service was terminated Then, however, following Monday. CALZADA, David L. Crespolara, Victor responded, quickly demanded immediate Matthews, Gerald Dee Patrick Martin service, restoration of her and when the Whittaker, Whittaker, Richard Allen El department comply failed to Balcazar-Rangel, iseo Maria de Los An dаy, one filed this suit. The water depart- geles Reyes-de Balcazar, Joel Tellez ment a property found itself faced with Doe, Romero and John also known as owner, arrears, himself demanding (an Spanish descent), Luis adult male of off, plaintiff, be turned a stran- Defendants-Appellees. ger to the water and in a dis- owner, pute demanding with the it No. 78-1043. on. turned It does not seem constitutional- United States Court of Appeals, ly impermissible department, for the water Seventh Circuit.

сonsidering that plaintiff was not its customer, take short time to try Argued June problem solve resuming before Decided July premises. to the The view of tardy her own contact with the de- As Amended July partment, reasonably expect could not in- stant water service under those circum-

stances. Had undertaken to problem

solve her own landlord-tenant be-

fore the shutoff of the water de-

partment would not now find itself unde-

servedly caught my judg- middle. appears complaint

ment from the responsible for her own problem

brief does not deserve under

any theory financially to benefit

expense village and its officials.1 got fix,

After plaintiff herself in this what patience,

she needed was a little not a fed-

eral lawsuit. particular facts of this case do

rise to the level of question. respectfully

I dissent from Part III opinion

majority and would affirm dis- complaint.

missal stage able her to been to locate at this a fact to considered 1. It is not being appears in her that water was turned proceedings, but it ‍‌‌​​​‌​​​​‌​​​‌‌‌​​​‌​‌​​​‌‌‌​‌‌​‌​​‌‌‌​​​​‌​‌‌‌‍the record advise of the (not flooding. accidental complaint) that there would be no time with- so shorter have been even out water would

Case Details

Case Name: Geraldine Sterling v. Village of Maywood

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jul 7, 1978

Citation: 579 F.2d 1350

Docket Number: 77-1632

Court Abbreviation: 7th Cir.