Bernard Leon Beyer v. Village of Ashwaubenon

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 1, 2011*
Decided November 1, 2011
Before
DIANE P. WOOD, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 11-1828
BERNARD LEON BEYER,
Plaintiff-Appellant,
v.
VILLAGE OF ASHWAUBENON, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 10-C-1066
William C. Griesbach,
Judge.
O R D E R
Bernard Beyer claims in this action under 42 U.S.C. § 1983 that the owner of an
apartment building, the proprietor of a towing company, and the Village of Ashwaubenon,
Wisconsin, violated his constitutional rights by towing and selling his car, which was left
parked on the landlord’s property after Beyer’s arrest. (Also named as a defendant is the
former Attorney General of Wisconsin, but she had no conceivable role in the events
The appellees were not served with process in the district court and are not*
participating in this appeal. After examining the appellant’s brief and the record, we have
concluded that oral argument is unnecessary. Accordingly, the appeal is submitted on the
appellant’s brief and the record. See FED. R. APP. P. 34(a)(2)(C).

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No. 11-1828 Page 2
underlying Beyer’s lawsuit, so we need not mention her further.) The district court
screened the complaint because Beyer was incarcerated, see 28 U.S.C. § 1915A(a), and
dismissed it on the ground that it fails to state a claim, see id. § 1915A(b)(1). Beyer appeals.
Because the complaint does not allege that any state actor violated Beyer’s constitutional
rights, we affirm the judgment.
At this stage we accept as true the factual allegations in Beyer’s complaint.
See Marion v. Columbia Corr. Inst., 559 F.3d 693, 696 (7th Cir. 2009). Beyer was arrested while
visiting a tenant of the apartment complex where he left his car. Shortly after that arrest,
the landlord, Jerry Lockman, submitted a parking complaint to the Village about the car,
and a local police officer ticketed the vehicle as abandoned. Beyer tried unsuccessfully to
contact Lockman from jail, and more than a month after his arrest he learned from a friend
that the car no longer was parked at Lockman’s property. Beyer contacted Village officials,
who told him that the Village had not towed his car and that, under Village policy,
property owners bear the responsibility for removing abandoned vehicles at their own
expense. Finally, more than two years after his arrest, Beyer discovered that his car had
been towed at Lockman’s request and sold by Bernard Smits, the owner of the towing
company.
Beyer claims that Lockman, Smits, and the Village “acted jointly” to take his car
without notice or a hearing, in violation of the Fourteenth Amendment. Village regulations
concerning abandoned property, he insists, don’t provide sufficient procedural protections.
In his complaint Beyer also makes reference to the diversity jurisdiction and several times
says that the defendants disregarded state law. But the district court construed the
complaint as raising federal claims only, and Beyer has never challenged that
understanding. In dismissing the lawsuit, the district court reasoned that the Village had
no duty to “get involved with a vehicle abandoned on private property” and that Lockman
and Smits cannot be held liable under § 1983 because they weren’t acting under color of
state law.
In challenging the dismissal, Beyer now contends that the Village, though under no
obligation to tow his car, had a duty to stop Lockman and Smits from towing and selling
the car without providing him notice or a hearing. But the Constitution as a rule protects
people from the state, not from each other. See DeShaney v. Winnebago Cnty. Dep’t of Soc.
Servs., 489 U.S. 189, 195–96 (1989); Waubanascum v. Shawano Cnty., 416 F.3d 658, 665 (7th Cir.
2005); Johnson v. City of Evanston, Ill., 250 F.3d 560, 563 (7th Cir. 2001). Beyer’s allegations do
not fall within any exception to this principle; the Village had no constitutional duty to
safeguard his property from a private landowner. His complaint therefore fails to state a
claim against the Village that is “plausible on its face.” See Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009); Zellner v. Herrick, 639 F.3d 371, 378 (7th Cir. 2011).

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No. 11-1828 Page 3
Beyer’s lawsuit, then, turns on whether Lockman and Smits acted under color of
state law, as required for him to proceed under § 1983. See West v. Atkins, 487 U.S. 42, 48
(1988); London v. RBS Citizens, N.A., 600 F.3d 742, 747 (7th Cir. 2010). To have acted under
color of state law, their actions must be fairly attributable to the Village. See Lugar v.
Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982); Rodriguez v. Plymouth Ambulance Serv., 577
F.3d 816, 823 (7th Cir. 2009). Smits’s conduct—towing a car at the request of a private
landowner—falls far short of this standard. See Hinman v. Lincoln Towing Serv., Inc., 771 F.2d
189, 193 (7th Cir. 1985). Beyer instead focuses on Lockman, emphasizing that he
complained about the car, prompting the Village to ticket it, and abided by Village policy in
paying to have the car towed. Yet even when viewed in the light most favorable to Beyer,
these acts fail to show state action. The Village never coerced Lockman; he voluntarily had
the car towed after the Village refused to do so. It was necessary for the Village to ticket the
car before Lockman could lawfully tow it, see WIS. STAT. § 349.13(3m), but even “the need to
obtain official approval” does not “turn private action into public action,” Gayman v.
Principal Fin. Servs., Inc., 311 F.3d 851, 853 (7th Cir. 2002); see Am. Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 54–55 (1999). When, as here, the state has not compelled a private
act—when “the impetus and the actors remain private”—there is no state action. Gayman,
311 F.3d at 853; see URI Student Senate v. Town of Narragansett, 631 F.3d 1, 10 (1st Cir. 2011);
Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 818 (7th Cir. 2009);
Husain v. Springer, 494 F.3d 108, 134–35 (2d Cir. 2007).
Because Beyer fails to state a plausible claim of unconstitutional state action, his
remaining arguments do not require discussion.
AFFIRMED.

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