incorporated by reference into the pleadings and documents attached to the pleadings
as exhibits are considered part of the pleadings for all purposes. Fed.R.Civ.P. 10 (c).
In addition, “documents that a defendant attaches to a motion to dismiss are considered
a part of the pleadings if they are referred to in the plaintiff's complaint and are central

to their claim.” Venture Assoc. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7"

Cir. 1993). With these principles in mind, the court turns to the instant motion.
DISCUSSION

The City has moved to dismiss Count I of Lee’s complaint. Lee brings Count I
under 42 U.S.C. § 1983. He alleges that the City violated both his Fourth Amendment
right to be free from unreasonable seizures and his Fourteenth Amendment right to
substantive due process in two ways. First, the City allegedly violated Lee’s rights by
requiring that owners whose vehicle are impounded for evidentiary or investigative
purposes pay for towing and storage fees for such vehicles. Second, Lee alleges the
City violated his rights when it painted the inventory numbers on the car without
compensating him. In addition, the City argues that dismissal of Count I results in the
elimination of this court’s supplemental jurisdiction over Lee’s state law claims.

I. 42 U.S.C. § 1983 Claim Based on Towing and Storage Fees.

A. Substantive Due Process Claim

Lee alleges that the City violated his substantive due process rights because the
City refused to release his car after the police no longer needed it for investigative

purposes unless he paid the towing and storage fees. Both the Supreme Court and the

-4-


(1) an ‘injury in fact,’ which is an invasion of a legally protected interest
that is (a) concrete and particularized, and (b) actual or imminent, not
conjectural or hypothetical; (2) a causal relationship between the injury
and the challenged conduct, such that the injury can be fairly traced to the
challenged action of the defendant and not from the independent action of
some third party not before the court; and (3) a likelihood that the injury
will be redressed by a favorable decision.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 119 L. Ed. 2d 351, 1125S.

Ct. 2130 (1992). These three elements have been described as the "constitutional
minimum of standing." Id, at 560. Further, the party invoking federal jurisdiction bears
the burden of establishing the elements of standing. Id, at 561. The elements of standing
“are not mere pleading requirements but rather an indispensable part of the plaintiff's
case.” Id. Each element must be supported just as the plaintiff would bear the burden
of proof, i.e., “with the manner and degree of evidence required at the successive stages
of litigation.” Id. It is certainly true that in ruling on a motion to dismiss for lack of
standing, the well-pleaded allegations of the complaint must be accepted as true. Perry
v. Village of Arlington Heights, 186 F.3d 826, 829 (7" Cir. 1999). However, where

standing is challenged as a factual matter, the plaintiff bears the burden of supporting
the allegations necessary for standing with “competent proof.” Id. This requirement of
"competent proof" is met by showing by a preponderance of the evidence that standing

exists. NFLC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 237 (7th Cir. 1995).

Here, Lee does not have standing unless the car was painted while Lee still
retained a property interest in the car. The City notified Lee that he would be waiving
all of his interest in the car once the car had been impounded for thirty days unless he

paid the requisite fees or requested a hearing within that time. He did neither.


Seventh Circuit’s decision in Miller v. City of Chicago, 774 F.2d 188 (7" Cir. 1985).

In Miller, the plaintiff had reported his car stolen and the City impounded the car upon

recovering it. Like Lee, the plaintiff there claimed that his due process rights were
violated because he had to pay towing and storage fees to retrieve his car. The court
rejected the plaintiff's arguments. The court explained that the City has a substantial
interest in removing stolen vehicles to safe places because each stolen car “presents
dangers or concerns that are not immediately ascertainable by police officers” and each

car is the object ofa felony. Miller, 774 F.2d at 193. The court also concluded that

there was “nothing arbitrary or irrational about...allowing the City to assess the cost of
this particularized service directly against the recipient of the service.” Id. at 195-96.

The court finds Miller persuasive. As with the stolen car in Miller, Lee’s car was

the subject ofa crime. Indeed, the crime at issue in this case—a gun shooting in public
— arguably presents a greater danger to the public than the stolen car in Miller. The City
clearly had a significant interest in taking possession of the car as part of its

investigation of such a violent crime. Additionally, like the plaintiff in Miller, Lee’s

interests were also benefitted by this investigation. Lee benefits as a result of the City’s
attempts to bring the perpetrator ofa shooting that resulted in injury to both Lee himself
and his property to justice. Because both the City and Lee have interests furthered by
the City’s policy of impounding vehicles for evidentiary and investigative purposes,
there is nothing arbitrary or irrational about requiring him to pay the storage and towing

fees. Miller, 774 F.2d at 196. This conclusion remains the same regardless of whether

Lee was an innocent bystander in the crime. Miller, 774 F.2d at 195; Towers v. City of

Chicago, 979 F. Supp. 708, 720 (N.D. Ill. 1997).

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Seventh Circuit have emphasized that courts should be “reluctant to expand the concept
of substantive due process.” Collins v. Harker Heights, 503 U.S. 115, 126, 117 L. Ed.
2d 261, 112 S. Ct. 1061 (1992). To state a claim for a violation of substantive due
process, the alleged violation must affect a fundamental right. Wozniak v. Conry, 236
F.3d 888, 891 (7" Cir. 2001), cert. denied, 121 S. Ct. 2243. A complaint alleging a
violation of substantive due process must allege “not merely that [defendants] injured
[the plaintiff] in a legal sense but that they deprived him ofa liberty deeply rooted in our
history and tradition.” Khan y. Gallitano, 180 F.3d 829, 834 (7" Cir. 1999).
Furthermore, “the protections of substantive due process have for the most part been
accorded to matters relating to marriage, family, procreation, and the right to bodily
integrity.” Albright v. Oliver, 510 U.S. 266, 812 (1994). Ifthe alleged violation does
not implicate a fundamental right, due process requires that the conduct at issue be, at
a minimum, rationally related to a legitimate governmental interest. Washington v.
Glucksberg, 521 U.S. 702, 728, 138 L. Ed. 2d 772, 117 S. Ct. 2258 (1997); Nat’] Paint
& Coatings Ass’n v. City of Chicago, 45 F.3d 1124, 1129-30(7" Cir. 1995). Under this

deferential standard, a plaintiff will only prevail if the plaintiff can establish that the

government action is arbitrary and irrational. Schacht v. Wisconsin Dept. of

Corrections, 175 F.3d 497, 502 (7" Cir. 1999) (citing Dunn, 158 F.3d at 965).
Because Lee’s claim does not implicate a fundamental right, the court applies the
deferential standard of review to her claim. The question thus becomes whether Lee can
show that the City’s policy of requiring payment of towing and storage fees before
releasing an impounded car is not rationally related to a legitimate government interest.
In arguing that the policy passes constitutional muster, the City relies primarily on the

-5-


basis to support a conclusion that the City’s requirement that fees be paid before an
impounded car is released is unreasonable. As explained above, both the City and Lee
have an interest in the investigation of the crime that led to the car’s impoundment and
it is not unreasonable for the City to expect Lee to assume some of the cost associated

with such an investigation. Miller, 774 F.2d at 195; Towers v. City of Chicago, 979 F.

Supp. 708, 720 (N.D. Ill. 1997). Furthermore, as stated above, Lee was not limited to
payment of fees as the only means to retain an interest in his car. He also had the option
of challenging the impoundment by requesting a hearing, yet his complaint is devoid of
any allegation that he took advantage of this option.

Accordingly, the court finds that Lee fails to allege both a violation of his
substantive due process right under the Fourteenth Amendment and his right to be free
ofunlawful seizures under the Fourth Amendment with respect to the fees he had to pay
to retrieve his impounded car.

II. 42 U.S.C. § 1983 Based on Painting ofthe Car with an Inventory Number.

Lee alleges that the city violated his substantive due process rights under the
Fourteenth Amendment and committed an unlawful seizure under the Fourth
Amendment when it painted an inventory number on the vehicle without compensating
Lee for the damage. The City moves to dismiss these claims based on Rule 12(b)(1)
because it argues that Lee does not have standing to bring them. Lee has not responded
to this argument. The question of standing is “whether the litigant is entitled to have the
court decide the merits of the dispute or particular issues." Warth v. Seldin, 422 U.S.
490, 498, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975). In order to invoke a federal court's

jurisdiction a plaintiff must demonstrate three things:

-8-


4 Mitute:Order Form (06/97)

a United States District Court, Northern District of Illinois

£ in

Navi of AS d Jud; j Sitting Judge if Oth
wseecntine Hi |) Charles P. Kocoras | tg de Oe
ra
L CASE NYMBER 01 C 6751 DATE 1/30/2002
’ CASE Lee vs. City of Chicago
TITLE

[in the following box (a) indicate the party filing the motion, ¢.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.}

MOTION:

DOCKET ENTRY:

(1) Oo Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

(3) a) Answer brief to motion due . Reply to answer briefdue_____.

(4) a Ruling/Hearingon_ssetfor_— at

(5) oO Status hearing[held/continued to] [set for/re-set for]on__setfor__at

(6) o Pretrial conference[held/continued to] [set for/re-set for]on__setfor_——sat_—
(7) a Trial[set for/re-set for] on__at

(8) QO [Bench/Jury trial] [Hearing] held/continuedto____at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

CUFRCP4(m) CGeneral Rule21 COFRCP41(a)(1) O FRCP41(a)(2).

do) «ff [Other docket entry] Ruling held: ENTER MEMORANDUM OPINION: Defendant’s motion
(Doc 17-1) to dismiss is granted. Lee’s complaint is dismissed in its entirety.

al) ff [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required

Notices mailed by judge’s staff. UL

Notified counsel by telephone. 10 docketed

ov | Docketing to mail notices.

v Mail AO 450 form, Lynd
Copy to ifhermagistay jitdge.

docketin} ddputy initials

1
Ba

| date mailed not
courtroom
SCT deputy’s
initials ee et
OT Ditértime received in

centrat Clerk's Office ‘mailing deputy initials



Consequently, he lost his property interest in the car thirty days after the City
impounded the car. Nowhere in the complaint does Lee allege that the car was painted
while he retained a property interest in the car. Nowhere does Lee allege that the
painting occurred within thirty days of the car’s impoundment. Accordingly, the
complaint does not provide a factual basis from which to conclude that Lee had a
protected property interest in the car when it was painted. Because Lee has not alleged
that the car was painted while Lee had a property interest in the car, the court finds that
he has not met his burden of showing standing at this stage of the litigation. Therefore,
his claims based on the painting of the car are dismissed.

III. The State Law Claims.

Because the court has dismissed all of Lee’s federal claims, it no longer has
supplemental jurisdiction over his state law claims. Therefore, those claims are
dismissed as well.

CONCLUSION

For the foregoing reasons, Lee’s complaint is dismissed in its entirety.

Charles P. Kocoras

United States District Judge

Dated: January 30.2002

-10-


Furthermore, the City provided Lee with two avenues for retaining an interest in
his car. One was the payment of the fees, but Lee could have also requested a hearing
where he could have contested the impoundment and its consequences. Lee’s complaint
is devoid of any allegation that he requested such a hearing. Accordingly, the court
finds that Lee has failed to state a claim that his substantive due process rights were
violated because he had to pay fees related to the City’s impoundment of his car.

B. Unlawful Seizure Claim

Lee further alleges that the City’s policy requiring him to pay towing and storage
fees to retrieve his impounded car constitutes an unlawful seizure under the Fourth
Amendment. A seizure of property occurs where “there is some meaningful interference
with an individual’s possessory interests in that property.” United States v. Jacobsen,
466 U.S. 109, 113, 80 L. Ed. 2d 85, 104. Ct. 1652 (1994). The protection of personal
property under the Fourth Amendment also applies in the civil context. Soldal v. Cook
County, 506 U.S. 56, 67, 121 L. Ed. 2d 450, 113 S. Ct. 538 (1992). Further, Courts
have interpreted the Fourth Amendment “to require any seizure by the government to

be reasonable under any circumstances. Towers v. City of Chicago, 979 F. Supp. 708,

723 (N.D. Ill. 1997). “Reasonableness” remains the “ultimate standard” under the
Fourth Amendment. Soldal, 506 U.S. at 71. This standard requires a “careful balancing
of governmental and private interests.” Id. The plaintiff has the burden of showing that
the seizure is unreasonable. Id. at 72.

As with Lee’s due process claim, the court finds that Lee fails to make outa claim
under the Fourth Amendment with regard to the payment of fees related to the City’s

impoundment of his car. The allegations in Lee’s complaint do not provide a factual

-7-


LEGAL STANDARD
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the

sufficiency of the complaint, not to decide the merits of the case. Triad Assoc., Inc. v.

Chicago Housing Auth., 892 F.2d 583, 586 (7" Cir. 1989). Thus, defendants must
achieve a high standard to have the court dismiss a plaintiff's case for failure to state a
claim upon which relief can be granted. In ruling on a motion to dismiss, the court must
construe the complaint’s allegations in the light most favorable to the plaintiff and all
well-pleaded facts and allegations in the plaintiffs complaint must be taken as true.
Bontkowski v. First Nat’] Bank of Cicero, 998 F.2d 459, 461 (7 Cir. 1993). The
allegations of a complaint should not be dismissed for failure to state a claim upon
which relief can be granted “unless it appears beyond a reasonable doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to
relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); see
also Hartford Fire Ins. Co. v. California, 509 U.S. 764, 125 L. Ed. 2d 612, 113 S. Ct.
2891 (1993); Sherwin Manor Nursing Center Inc. v. McAuliffe, 37 F.3d 1216, 1219 (7
Cir. 1994). Nonetheless, to withstand a motion to dismiss, a complaint must allege facts
sufficiently setting forth the essential elements of a cause of action. Lucien v. Preiner,
967 F. 2d 1166, 1168 (7" Cir. 1992).

In reviewing a Rule 12(b)(6) motion to dismiss for failure to state a claim, the

court is limited to the allegations contained in the pleadings themselves. Documents

-3-


officers had the car towed and impounded so that the police may obtain evidence, such
as the bullets which were in the car.

On June 11, 2001, the City issued Lee a form notice entitled “Vehicle on Hold
for Investigation.” This form stated that Lee had 30 days from the date of impoundment
to either request a hearing or retrieve his vehicle by paying the towing and storage
expenses. The form notice informed Lee that failure to do so would constitute a waiver
of all of his rights to the vehicle.

At some point after impounding the car, the police determined that the car was
no longer required for investigative or evidentiary purposes. Lee sought to retrieve his
car but was informed that it would not be released to him until he paid the towing and
storage fees. Plaintiff sought legal assistance and eventually had the vehicle returned
to him on July 9, 2001 after paying the towing and storage fees. Upon recovering
possession of the car, Lee saw that the number 415342 had been painted in red on the
car in a few different places. The number was listed as the “inventory number” of the
vehicle and was painted by or at the direction of the Chicago Police Department. Lee
was not compensated for the damage caused by the paint. Consequently, he brought the
instant action, bringing claims of constitutional violations through 42 U.S.C. § 1983 and
three claims based on Illinois state law. The City seeks to dismiss Lee’s complaint in

its entirety.


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
MARK A. LEE, )
)
Plaintiff, )
)
vs. ) 01C 6751
)
CITY OF CHICAGO, a municipal )
corporation, ») Ly, oy
) My MEP»
Defendant. ) AN 1 4D
Lp

MEMORANDUM OPINION
CHARLES P. KOCORAS, District Judge:

This matter is before the court on Defendant the City of Chicago’s (“the City”)
motion to dismiss Plaintiff Mark A. Lee’s (“Lee”) complaint pursuant to Rule 12(b)(6)
and Rule 12(b)(1). For the reasons set forth below, the motion is granted.

BACKGROUND

The following facts are taken from the allegations in Lee’s complaint, which the
court is obligated to accept as true for the purposes of this motion. On June 9, 2001, Lee
was sitting in his vehicle with two passengers when the vehicle came under fire. Lee
alleges that neither he nor his car were intended targets of the gunfire. The Chicago
Police Department subsequently arrived to investigate the crime. Lee alleges that the

Chicago Police denied his passenger’s offer to park and secure the vehicle. Instead, the

4)