William H. Viehweg v. City of Mount Olive

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 12, 2014*
Decided March 18, 2014
Before
WILLIAM J. BAUER, Circuit Judge
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 13-3006
WILLIAM H. VIEHWEG,
Plaintiff-Appellant,
v.
CITY OF MOUNT OLIVE, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Central District of Illinois.
No. 12-3234
Byron G. Cudmore,
Magistrate Judge.
O R D E R
William Viehweg sued under 42 U.S.C. § 1983 the City of Mount Olive, its police
chief, mayor, clerk, and one of its alderman for violating his substantive due-process
rights by aggressively demanding that he demolish his garage. The defendants moved
to dismiss the complaint, see FED. R. CIV. P. 12(b)(6), but before the district court ruled
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
After examining the parties’ briefs and the record, we have concluded that oral*
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See FED. R. APP. P. 34(a)(2)(C).

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on the motion, Viehweg moved for leave to amend his complaint, which the court
allowed. The defendants then moved to dismiss the amended complaint, and the court
dismissed Viehweg’s suit with prejudice for failing to state a claim. See id. Because
Viehweg has not alleged misconduct that shocks the conscience, we affirm the
judgment.
The facts alleged in Viehweg’s complaint, which we must accept as true,
see Serino v. Hensley, 735 F.3d 588, 590 (7th Cir. 2013), concern an unattached garage on
Viehweg’s property in Mount Olive, Illinois. The garage, according to Viehweg, is safe
but “may be considered by some to be an eye sore.” His neighbor, Alderman Marcie
Shulte, dislikes the garage and, having an alleged “personal vendetta” against Viehweg,
has been urging the city to remove the garage for years. As part of this effort, in May
2012 police chief Ryan Duggar pounded on Viehweg’s door, told him that Shulte and
Mayor John Skertich had spoken about his garage at a city council meeting, and
demanded to know when he would demolish it. Duggar returned three months later
and made the same demand. When Viehweg asked him what law required him to
demolish the garage, Duggar replied that a Mount Olive ordinance regulates unsafe
buildings. So Viehweg visited city hall to verify Duggars’ claim, and the clerk, Connie
Andrasko, handed him a copy of the ordinance and a notice letter falsely backdated to
July 9, 2012. The notice labeled Viehweg’s garage as “dangerous and/or unsafe,” noted
that the roof was falling in, and warned Viehweg that he had 15 days from receiving the
notice to repair or demolish the garage or else face a state lawsuit for demolition.
Over the next few weeks, acting on Duggar’s command, city personnel contacted
Viehweg at home about his garage. First a police officer demanded to know when
Viehweg would raze the garage. The officer returned the following day, pounded on
the door, and served Viehweg with a copy of the July 9 notice and city code. A few
weeks later another police officer pulled into Viehweg’s driveway at night, flashed the
car’s high beams toward the garage, and shone a spotlight into his home. Finally, the
city clerk, Andrasko, left a message on Viehweg’s answering machine a couple days
later asserting that Viehweg could not attend a city counsel meeting that night.
Viehweg sued in federal court the next month, alleging insofar as concerns this
appeal that these events violated his rights under the substantive component of the due
process clause. He asserts that the defendants’ behavior—designed to harass, scare, and
silence him into acquiescence—shocks the conscience because the defendants wielded
their executive power for personal reasons at the expense of his constitutional rights.

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The defendants moved to dismiss, arguing that Viehweg had not alleged a
deprivation of substantive due process. The defendants reasoned that the city, mayor,
and alderman had a legitimate interest in removing derelict buildings. The methods
that they allegedly used to achieve their goal might be improper under state law, the
defendants added, but they were not unconstitutional.
The district court (through a magistrate judge acting by consent of the parties)
concluded that Viehweg had not alleged a substantive due-process violation and
dismissed the case with prejudice. The court explained that the city had a valid interest
in maintaining its buildings, and Viehweg had not alleged that any defendant had
physically touched or tried to touch him or the garage in pursuing that interest. The
defendants’ demands to demolish the garage did not, therefore, shock the conscience.
The court also observed that, although the date on the demolition notice had been
allegedly falsified, the date was harmless because Viehweg had 15 days to act from
when he received the notice and not the date it was issued. Therefore, the alleged
backdating did not shock the conscience.
Viehweg moved to reconsider, presenting newly discovered facts: The city had
petitioned for demolition of his garage in February 2013, see 65 ILCS 5/11-31-1(a), but a
state court rejected the petition, finding no evidence that an inspector had examined the
garage or the city council had voted it unsafe, see MT. OLIVE, IL., CODE §§ 25-5-1 to 25-5-7
(2004). Viehweg argued that the state court’s dismissal proved that the defendants had
initiated a baseless suit and thus violated substantive due process. The district court
denied the postjudgment motion, concluding that, because Viehweg prevailed in the
city’s suit to demolish his garage, due process had been accorded rather than violated.
Viehweg limits his appeal to his substantive due-process claim. He argues that
the defendants used two forms of outrageous tactics to try to vanquish property that
displeased the mayor and his confederates. First, local officers intimidated Viehweg
with beamed headlights and repeated, authoritative, and hollered demands that he
demolish his garage. Second, they forced him to defend a baseless suit in state court.
Substantive due process “is very limited.” Tun v. Whitticker, 398 F.3d 899, 900–02
(7th Cir. 2005). The Supreme Court cautions against expanding its scope beyond barring
government interference with the fundamental rights of marriage, reproduction, child-
rearing, and bodily integrity “because guideposts for responsible decisionmaking in this
unchartered area are scarce and open-ended.” Collins v. Harker Heights, 503 U.S. 115, 125
(1992); see also Washington v. Glucksberg, 521 U.S. 702, 720 (1997); Sung Park v. Ind. Univ.

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Sch. of Dentistry, 692 F.3d 828, 832 (7th Cir. 2012). Substantive due process also prohibits
the government from irrationally denying some non-fundamental rights, see Hayden ex.
rel. A.H. v. Greensburg Cmty. Sch. Corp., No. 13-1757, 2014 WL 685529, at *4–5 (7th Cir.
Feb. 24, 2014); Wroblewski v. City of Washburn, 965 F.2d 452, 457–58 (7th Cir. 1992), but
Viehweg does not raise that claim now nor did he in the district court. Instead, he
contends that public officials abused their power, and thereby violated substantive due
process, with behavior that “shocks the conscience.” See Rochin v. California, 342 U.S.
165, 172 (1952); Geinosky v. City of Chicago, 675 F.3d 743, 750 (7th Cir. 2012). Under this
standard, abuse that is merely tortious or even “abhorrent” does not offend substantive
due process. Tun, 398 F.3d at 902; see also Kernats v. O’Sullivan, 35 F.3d 1171, 1175 (7th
Cir. 1994) (“every official abuse of power, even if unreasonable, unjustified, or
outrageous, does not rise to the level of a federal constitutional deprivation”).
The events that Viehweg has alleged, though deeply troubling, do not meet the
shock-the-conscience threshold for substantive due-process claims, and thus, the district
court correctly dismissed Viehweg’s claim. We first address Viehweg’s argument that
the defendants used extrajudicial process to urge him to demolish his garage. They
barked demands and warnings, pounded on his door, shone a headlight through his
window, and told him not to attend a council meeting. But they never made or
threatened physical contact with him or seized his body or any of his possessions.
Without actual or threatened contact with his body or property, the defendants’ largely
verbal harangues were not so egregious that they violated substantive due process.
Compare Rochin, 342 U.S. at 172 (concluding that forcibly pumping out contents of
suspect’s stomach to obtain illicit drugs violates substantive due process) and Belcher v.
Norton, 497 F.3d 742, 753–54 (7th Cir. 2007) (concluding that if law enforcement extorted
property by threatening arrests, substantive due process is offended) with Geinosky, 675
F.3d at 750–51 (explaining that, although issuing 24 parking tickets constituted
deliberate and unjustified official harassment, conduct did not violate substantive due
process) and Palka v. Shelton, 623 F.3d 447, 453–54 (7th Cir. 2010) (concluding that police
investigatory tactics did not shock the conscience merely because they did not conform
to internal department procedures).
Viehweg also contends that, because the defendants knowingly petitioned for
demolition without following the correct procedures, they violated substantive due
process by forcing Viehweg to defend a frivolous lawsuit. Forcing a person to defend a
pointless suit is objectionable, but Viehweg had available to him—as part of that very
litigation—remedies to protect him from a vexatious suit. See In re Marriage of Gary III,
894 N.E.2d 809, 813 (Ill. App. Ct. 2008) (recognizing power of Illinois courts to enjoin

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vexatious and harassing litigation); see also Gay v. Chandra, 682 F.3d 590, 596 (7th Cir.
2012) (noting district court’s discretion to impose sanctions under Federal Rule of Civil
Procedure 11 “for filing or maintaining claims for an improper purpose or without
adequate legal or factual support”). The city’s filing of a frivolous petition therefore
does not offend “the concept of ordered liberty such that neither liberty nor justice
would exist if [it] were sacrificed.” Washington, 521 U.S. at 720–21 (internal citation and
quotation marks omitted); see Hussein v. City of Perrysburg, 617 F.3d 828, 830–31 (6th Cir.
2010) (concluding that plaintiffs’ substantive due-process rights were not violated when
city inspector, accompanied by two police officers, threatened litigation over driveway
that did not comply with zoning laws). The district court thus properly dismissed the
substantive due-process claim.
Finally, Viehweg contests the district court’s decision to dismiss the case with
prejudice and asks us to remand with instructions to grant him leave to amend the
complaint (for a second time). He asserts that the allegations in his amended complaint
and postjudgment motion, together, state a claim for relief under the substantive
component of the due process clause. But we have already concluded that those
allegations do not shock the conscience. “Leave to amend need not be granted … if it is
clear that any amendment would be futile,” Bogie v. Rosenberg, 705 F.3d 603, 608 (7th
Cir. 2013), and Viehweg offers no new allegations that would state a claim for relief.
Accordingly, we AFFIRM the judgment of the district court.

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