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Bowman v. Franklin, City of

Citation: 23 ELR 20444
No. No. 91-3887, 980 F.2d 1104/(7th Cir., 12/02/1992)

The court dismisses claims by property owners under 42 U.S.C. §§1983 and 1985 against a city, a waste management company, and a construction company for injunctive relief and monetary damages, based on alleged violations of civil rights guaranteed by the Fifth and Fourteenth Amendments of the U.S. Constitution and of state tort law. The property owners asserted that a sewer line running under their property and the assessment for the sewer line's installation were the product of a conspiracy among the defendants to interfere with their property rights by imposing illegal taxes, polluting their property, and taking the property for the private use and benefit of the waste management company, which had arranged with the city to connect its landfill to the city's sewer system. The property owners also asserted state tort claims of trespass and interference with prospective purchasers of their property. The court holds that the facts asserted by the property owners are insufficient to establish a conspiracy, and the actions of the waste management and construction companies are insufficient to establish state action for purposes of 42 U.S.C. §1983. The property owners failed to allege an actionable violation of constitutionally protected property rights. The court holds that the property owners' claim under 42 U.S.C. §1985(3) must be dismissed, because the property owners failed to allege racially motivated discriminatory animus behind the defendants' conduct. The court holds that the district court properly dismissed the property owners' state claims with prejudice, because an indenture signed by the property owners granted a temporary easement for the installation of the sewer line, and the property owners cited no authority for the proposition that wastes flowing through a sewer under a person's property constitute a trespass. The court could identify no claim for relief under Wisconsin law to support the property owners' interference claim. Finally, the court holds that sanctions against the property owners are inappropriate, since the property owners did not display bad faith in their appeal, but rather made a serious, though unpersuasive, attempt to address legal and factual errors that they believed the district court had made.

Counsel for Plaintiffs/Appellants
Counsel not available at this printing.

Counsel for Defendants/Appellees
Jesse Wesolowski
City Attorney's Office
131 W. Layton Ave., Ste. 300, Milwaukee WI 53207
(414) 425-7500

Before BAUER, Chief Judge, POSNER, Circuit Judge, and ESCHBACH, Senior Circuit Judge.