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Moreno-Avalos v. City Hall of Hammond

United States District Court, N.D. Indiana, Fort Wayne Division

January 30, 2015

SONIA MORENO-AVALOS, Plaintiff,
v.
CITY HALL OF HAMMOND, INDIANA, et al., Defendants. SONIA MORENO-AVALOS, Plaintiff,
v.
CITY HALL OF HAMMOND, INDIANA, et al., Defendants.

OPINION AND ORDER

THERESA L. SPRINGMANN, District Judge.

On December 6, 2013, the Plaintiff, Sonia Moreno-Avalos, filed a pro se Complaint [ECF No. 1, Cause No. 2:13-CV-450] against the Defendants, City Hall of Hammond, Indiana, and five City of Hammond officials for harassment. Prior to the Complaint in this matter, the Plaintiff filed a pro se Complaint against the same Defendants for Breach of Contract and Violation of a Federal Bankruptcy Automatic Stay [ECF No. 1, Cause No. 2:13-CV-347]. The Court consolidated the two matters in an Opinion and Order [ECF No. 26] issued on February 3, 2014, which made Cause No. 2:13-CV-347 the lead case in this dispute (all ECF citations below are to the ECF numbers in the lead case). The Defendants in this matter filed a Motion to Dismiss in each case prior to the consolidation of the cases. The Court denied the Motions to Dismiss in an Opinion and Order [ECF No. 33] issued on August 8, 2014. The Defendants then filed an Answer [ECF No. 36] on August 22, 2014.

This matter is now before the Court on the Defendants' Motion for Judgment on the Pleadings [ECF No. 37], filed on August 22, 2014. On that same date, the Defendants also filed a Memorandum in Support of their Motion [ECF No. 38]. The Plaintiff filed a 40-page Response [ECF No. 41] on September 3, 2014. This Response exceeds the page limit requirements found in the Court's local rules. See N.D. IND. L.R. 7-1(e)(1). The Plaintiff also attempted to file Exhibits [ECF No. 42]. The Defendants filed a Reply [ECF No. 43] on September 10, 2014, and a Motion to Strike the Plaintiff's Exhibits [ECF No. 44]. With those filings in the record, the matter is fully briefed and ripe for ruling.

PRELIMINARY MATTERS AND EXTRANEOUS FILINGS

The Plaintiff is proceeding pro se and has filed voluminous documents with the Court. Her filings have been lengthy and difficult to comprehend. Through her filings, the Plaintiff has attempted to assert myriad claims against the Defendants and has done so repeatedly. Nonetheless, the Court has construed the Plaintiff's filings liberally given her pro se status.

There are a number of motions pending before the Court aside from the Motion for Judgment on the Pleadings. These motions include the Plaintiff's "Motion to Sue[] Defendants Under Their Official Capacity" [ECF No. 39], Plaintiff's Motion to Amend the Name of a Defendant [ECF No. 40], and the Defendants' Motion to Strike Exhibits [ECF No. 44]. The Plaintiff's motions regarding amending the Complaint to sue the Defendants in their official capacity and to amend the name of a Defendant are denied as moot because the Motion for Judgment on the Pleadings is fully briefed and the Court's Opinion and Order resolves the case.

The Defendants' Motion to Strike Exhibits raises legitimate issues with the Plaintiff's Response and filings. The Plaintiff presented information outside the pleadings in the form of exhibits with her Response. But in a motion for judgment on the pleadings, documents attached to a motion, or a response to the same, cannot be considered as part of the pleadings unless they are referred to in the plaintiff's complaint and are central to the claim. Levenstein v. Salefsky, 164 F.3d 345, 347 (7th Cir. 1998); Wright v. Assoc. Ins. Cos. Inc., 29 F.3d 1244, 1248 (7th Cir. 1994). Accordingly, if "matters outside the pleadings are presented to and not excluded by the court, " the court must treat a Rule 12(c) motion for judgment on the pleadings as a motion for summary judgment. Fed.R.Civ.P. 12(d). Here, because of the redundant and/or impertinent nature of the Plaintiff's exhibits, the Plaintiff's attempt to attach such exhibits in ECF No. 42 will not be permitted; and as a result, the Court will not convert the motion to one for summary judgment. See Marques v. Fed. Reserve Bank of Chi., 286 F.3d 1014, 1017 (7th Cir. 2002) (stating that a court has discretion to consider attached materials and convert a 12(b)(6) motion into a summary judgment motion). However, the Court will consider the Plaintiff's entire 40page Response and everything contained in the Complaint in ruling on the Motion for Judgment on the Pleadings.

A motion for judgment on the pleadings, pursuant to Federal Rule of Civil Procedure 12(c), permits a party to move for judgment after the complaint and answer have been filed by the parties. When reviewing Rule 12(c) motions, a court must review the pleadings under the same standard that applies when reviewing motions to dismiss for failure to state a claim under Rule 12(b)(6). Pisciotta v. Old Nat'l Bancorp, 499 F.3d 629, 633 (7th Cir. 2007).

When reviewing a complaint attacked by a Rule 12(b)(6) motion, a court must accept all of the factual allegations as true. Erickson v. Pardus, 551 U.S. 89, 93 (2007). Under the liberal notice pleading requirements of the Federal Rules of Civil Procedure, the complaint need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The complaint need not contain detailed facts, but surviving a Rule 12(b)(6) motion "requires more than labels and conclusions.... Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint must contain sufficient factual matter to "state a claim to relief that is plausible on its face." Id. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).

Before proceeding to the factual background and analysis sections of this Opinion and Order, it is worth noting that the issues involved in this case have been streamlined. Despite the Plaintiff's continued attempts to add additional claims to the case, only two claims remain properly before the Court: (1) a 42 U.S.C. ยง 1983 claim for harassment; and (2) a claim for breach of contract.

FACTUAL BACKGROUND

This dispute essentially pertains to the Plaintiff's real estate in Hammond, Indiana. The City of Hammond and its officials have issued the Plaintiff a number of citations regarding building code violations. The Plaintiff has filed with the Court hundreds of pages of documents that are difficult to understand. Some of the filings are repetitive. Others make arguments regarding claims that are no longer at issue in this litigation. As described above, the Court has narrowed this case to two specific claims the Plaintiff is attempting to make. The Court will recount here the very basic facts related to those claims as best as the Court understands them based on the Plaintiff's filings.

The Plaintiff claims that she was harassed by City of Hammond officials. Specifically, the Plaintiff argues that City Building Inspector Kim Nordhoff issued numerous citations to the Plaintiff and that the issuance of the citations was done wrongfully. She recounts a time where Nordhoff requested permission to enter the Plaintiff's property for inspection, the Plaintiff denied Nordhoff's request to enter, and the two engaged in a verbal altercation. The Plaintiff claims that she is afraid of Nordhoff. She also claims that a truck circled her property on various occasions and that the person in the truck was taking pictures of the property. However, as best as the Court can tell, her factual claims are mostly related to the fact that she has been issued numerous citations and has been required to appear in court on multiple occasions. The Court also notes that according to the Defendant's brief, the Plaintiff's property has not been demolished.

With regard to her contract claim, the Plaintiff provides an affidavit from attorney David W. Weigle [Compl., ECF No. 1], who formerly represented the Plaintiff in a pro bono capacity. He does not represent the Plaintiff now. The primary issue with the Plaintiff's property was a faulty roof and whether the roof had to be totally removed and repaired or only partially repaired for the Plaintiff to comply with local regulations. Weigle's affidavit states that he had an agreement with the City of Hammond that the Plaintiff's roof issue "would be resolved by the opinion of a reputable roofing contractor licensed in the City of Hammond to be obtained by [the Plaintiff] relative to a hearing scheduled for December 8, 2011." The Plaintiff claims that this agreement established an enforceable contract and that the Defendants breached the contract when on December 7, 2011, the Plaintiff received a letter informing her that her property was in violation of several city housing codes and that it would be demolished if she failed to bring the house up to code. According to the Plaintiff, on April 2, 2013, the city denied a ...


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