United States Constitution or by federal law. Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir.
2001). When suing a municipality under § 1983, however, the plaintiff must allege more than just
a constitutional injury, but must also prove that a "custom or policy of the [defendant] was a cause
of the plaintiffs injury.” Jenco v. City of Chicago, 286 F.3d 994, 1001 (7th Cir. 2002). A
municipality or municipal agency, such as the Town of Cicero or its Zoning Board, can be liable
under § 1983 for violating a person's constitutional rights through: (1) an express municipal policy;
(2) a widespread practice constituting custom or usage; or (3) a constitutional injury caused or
ratified by a person with final policymaking authority. Simmons v. Chicago Bd. of Educ., 289 F.3d
488, 494 (7th Cir. 2002).

The gravamen of Plaintiffs complaint is straightforward. They allege that when they
purchased their homes in the Town of Cicero, they were issued certificates of compliance with the
Town’s zoning ordinances. Recently, however, Plaintiffs allege that they have been denied
certificates of compliance. The reason, according the Plaintiffs’ complaint, is that they are Latino,
and the Town has a policy of selectively enforcing the BOCA Code against them, in violation of the
Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The
Plaintiffs further allege that the Town does not enforce the BOCA Code against similarly situated
non-Latinos, pointing to former Town President Betty Loren-Maltese as an example.

Cicero characterizes Plaintiffs’ complaint as a garden variety zoning dispute. “While it is
true that this characterization appears in a number of cases involving challenges to land-use
decisions, see Hartland Sportsman's Club, Inc. y. Town of Delafield, 35 F.3d 1198, 1199- 1200 (7th
Cir.1994); Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461, 467 (7th Cir.1988), these

are not magic words that municipal defendants can simply recite in order to insulate their land-use


dismissed. Plaintiffs’s attorney, however, is cautioned that the Court will not entertain future
motions that are not properly noticed and that he should endeavor to comply with all local rules as
well as the Federal Rules of Civil Procedure.

Before proceeding to the merits of Defendant’s motion to dismiss, Defendant further urges
the Court that it be allowed to file yet another motion to dismiss if the Court allows the filing of
Plaintiffs’ second amended complaint. This is unnecessary. As noted above, Defendant represented
in its reply that the second amended complaint does not cure the deficiencies it has already pointed
out. If Defendant believed that the second amended complaint set forth anything that required it to .
clarify or expand upon its motion to dismiss, then it should not have represented to the Court that
the second amended complaint does not cure the deficiencies of the first amended complaint.
Accordingly, the Court will proceed to the merits of Defendant’s motion to dismiss, assessing
whether Plaintiffs’ second amended complaint passes muster under Fed, R. Civ. P. 12(b)(6).

Motions to dismiss under Rule 12(b)(6) test the sufficiency of the complaint rather than the
merits of the case. The Court must construe all allegations in the complaint ‘in the light most
favorable to the plaintiff, taking all well-pleaded facts and allegations within the complaint as true.
Bontkowski v. First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir.1993). Defendants must meet
a high standard to prove the complaint should be dismissed for the failure to state a claim upon
which relief could be granted, and a plaintiff's complaint should only be dismissed if "it appears
beyond 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 (1957).

To state a claim under § 1983, a plaintiff must plead that a person, while acting under the

color of state law, deprived the plaintiff of rights, privileges or immunities secured either by the


decisions from scrutiny under federal law.” Cruz v. Town of Cicero, 275 F.3d 579, 587 (7th Cir.
2001) (citations in original). Charges that a municipality has singled out members of a vulnerable
group, racial or otherwise, for unequal treatment are sufficient to state a claim for a violation of
Equal Protection. See, e.g., City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440-41,
105 S.Ct. 3249, 3254-55, 87 L.Ed.2d 313 (1985). In alleging that the Town of Cicero engages in
invidious discrimination against Latinos because the Town’s “policy makers fear” that group,
Plaintiffs have sufficiently alleged a “widespread practice constituting custom or usage” in order to
satisfy the requirements of Monell v. Department of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56
L.Ed.2d 611 (1978), for stating a § 1983 claim against a municipality.

Accordingly, Defendant’s motion to dismiss is DENIED. Defendant is ordered to answer
Plaintiffs’ second amended complaint by November 12, 2002.

IT IS SO ORDERED.

Date: SOY (22 fon ZI he ee
Sa
William J. Hibbler, Judge
United States District Court



a

n~

?* Minute Order Form (06/97)
United States District Court, Northern District of Illinois
Namest seine ie | William J. Hibbler | nui ter

CASE NUMBER 01 C 8575 DATE 10/22/2002

CASE MURALLES, et al. Vs. TOWN OF CICERO, etc.

TITLE

Un the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented, ]
Defendant’s Motion to Dismiss (Doc. #15)
DOCKET ENTRY:
qd) o Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) oO Answer brief to motion due. . Reply to answer brief due.
(4) Oo Ruling/Hearingon___—setfor__—__at
(5) a Status hearing[held/continued to] [set for/re-set for] on__—_set for at
(6) a Pretrial conference[held/continued to] [set for/re-set for] on set for at.
(7) Oo Trial[set for/re-set for] on at
(8) © — [Bench/Jury trial] [Hearing] held/continued to___at
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CUFRCP4(m) ClLocal Rule 41.1 CFRCP41(a)(1) 0 FRCP41(a)(2).

(Ce | [Other docket entry] Enter Memorandum Opinion and Order. Plaintiffs’ motion for leave to file

dal) of

their second amended complaint is GRANTED. Defendant’s motion to dismiss [#15] is DENIED.
Defendant is ordered to answer Plaintiffs’ second amended complaint by 11/12/02. Status hearing set
for 12/2/02 at 9:15 a.m.

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

No notices required,

Mail AO 450 form.

No notices required, advised in open court.
Notices mailed by judge’s staff.
Notified counsel by telephone.

Docketing to mail notices.

Copy to judge/magistrate judge.

JHC

number of notices

OT 23 2002 ;

date docketed

docklying pep initials

Lupng meses

date mailed notice
courtroom

deputy’s
initials

Date/time received in
central Clerk’s Office

nailing deputy initials



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
Maruicio Muralles, Bertha Muralles, )
Javier Olivares, Maria Olivares, )
Sergio Rivera, Jessica Rivera, and )
Veronica Rivera »)
)
Plaintiffs, )
) No. 01 C 8575
v. )
) Judge William J. Hibbler
The Town of Cicero, a municipal )
corporation ) ,
)
Defendant. ) DOCKETED

oct 23 2002
MEMORANDUM OPINION AND ORDER

Plaintiffs, Latino homeowners in the Town of Cicero, sued the Town alleging that it violated
42 U.S.C. § 1983 when it denied them compliance certificates to Cicero’s Zoning Ordinance (also
known as the “BOCA Code”). Defendant’s motion to dismiss the complaint for failure to state a
claim, Fed. R. Civ. P. 12(b)(6) is pending before the Court. Prior to addressing the merits of the
Defendant’s motion, the Court must clear up the procedural morass created by Plaintiffs’ attorey’s
fumbling of the Federal Rules of Civil Procedure.

Defendant filed its motion to dismiss on June 25, 2002. On July 2, 2002, the Court set a
briefing schedule, requiring Plaintiffs to respond to the motion by July 30, 2002, and allowing
Defendant until August 14, 2002, to reply. The July 30th deadline came and passed. Rather than
filing a response to Defendant’s motion, Plaintiffs’ attorney elected to file a motion for leave to file
an amended pleading. Counsel, however, failed to properly notice the motion, instead submitting
it simply as a response to the motion to dismiss. Local Rule 5.3 requires that a party serve its

opponent with “written notice of the intent to present a motion specifying the date on which the


motion is to be presented.” This is not the first time Plaintiffs’ attorney has botched an elementary
procedural rule. When Plaintiffs initially filed their complaint, their attorney neglected to file with
the Court proof that the Defendant had been served within 120 days of the filing of the complaint.
Plaintiff then moved for default judgment, without ever demonstrating that Defendant had been
properly served. When Defendant moved to Quash service and dismiss the complaint under Fed.
R, Civ. P. 4(m), Plaintiffs’ attorney chose not to respond and instead filed a motion to enlarge the
time to perfect service, which similarly was not properly noticed. Plaintiffs’ blunders leave the Court
with a procedural mess.

On the one hand, Fed. R. Civ. P 15(a) suggests that leave to amend pleadings should be freely
given when justice so requires. See also Park vy. City of Chicago, 297 F.3d 606, 613 (7th Cir. 2002).
On the other, even pro se litigants are expected to comply with the rules of civil procedure, and
certainly counsel should so comply. See McNeil v. United States, 508 U.S. 106 (1993). Defendant
urges the Court to deny Plaintiffs’ motion for leave to amend and, consequently, grant its motion to
dismiss. It is well within the province of the district court to deny leave to amend if, among other
things, there is undue delay or undue prejudice would result to the opposing party if the amendment
were allowed. Thompson vy. Illinois Dep’t of Prof’l Regulation, 300 F.3d 750, 759 (7th Cir. 2002).
Undue delay, in and of itself, is often an insufficient ground to deny leave to amend a pleading, and
the degree of prejudice to the opposing party is a more significant factor. Park, 297 F.3d at 613.
Here, Defendant has stated in its reply that “the second amended complaint does nothing to cure the
deficiencies that were pointed out in Defendant’s motion to dismiss the first amended complaint.”
Thus, Defendant will suffer no prejudice if the Court allows the filing of Plaintiffs’ second amended

complaint — for it has already set forth the reasons why it believes Plaintiffs’ complaint should be