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Moreno-Avalos v. City of Hammond Indiana

United States District Court, N.D. Indiana, Hammond Division

November 14, 2017

CITY OF HAMMOND INDIANA, et al., Defendants.



         This matter is before the Court on the Defendants' Motion for Summary Judgment, filed by Defendant, City of Hammond, Indiana, and Kim Nordhoff, in her individual capacity, on July 24, 2017 (DE #80). For the reasons set forth below, the motion is GRANTED. The regulatory taking claim is dismissed because it is barred by the Rooker-Feldman doctrine, and the remaining claims against Defendants, City of Hammond, Indiana and Kim Nordhoff, are dismissed because they are barred by claim preclusion. The Clerk is ORDERED to CLOSE this case.


         This case centers around the rental property at 551 Gostlin Street in Hammond, Indiana, which was owned by Plaintiff, Sonia Moreno-Avalos. The property lapsed into disrepair and became the subject of municipal code violations. Over a five-year period, Plaintiff disputed the code violations, and appeared in Hammond City Court and the Hammond Board of Public Works and Safety (either in person or by counsel), to challenge them.

         Plaintiff filed her first complaint on January 23, 2013, pursuant to 42 U.S.C. § 1983 in district court against “City Hall of Hammond, Indiana, Kurt Koch, Kim Nordhoff, and Darren Taylor, ” under Case No. 2:13-cv-38-JVB-APR (Defs. Ex. H, the “038 Action”). In that complaint, she alleged she complained to the Mayor about the conduct of Hammond Code Enforcement inspector Kim Nordhoff, asserting Nordhoff stalked her and interfered with her landlord-tenant relationships. (Id. ¶¶ 11-18, 21-26.) She also alleged Koch retaliated against her by having her property declared an unsafe building and making false statements. (Id. ¶ 4.) On August 21, 2013, Judge Van Bokkelen dismissed Plaintiff's complaint for lack of personal jurisdiction due to failure to serve. (Ex. H at 5.)

         Plaintiff filed another section 1983 action in district court on September 26, 2013, against the same defendants plus Mr. Dabertin and Mayor McDermott. That matter was assigned to Judge Theresa Springmann under Case No. 2:13-cv-347-TLS-PRC (Ex. I, “347 Action”). Plaintiff brought many of the same allegations, including her claim that defendants retaliated against her by ordering her Gostlin Street property to be demolished, that she had been stalked by Nordhoff, harassed by the other defendants in retaliation for her report of Nordhoff's alleged harassment, and that Koch made false statements about the condition of her building. (Id. ¶¶ 32-33, 19, 47.) While this action remained pending, Plaintiff filed a third section 1983 complaint in district court against the defendants, under Case No. 2:13-cv-00450-JTM-PRC (Ex. J, “450 Action”). Plaintiff reiterated her previous claims against the same defendants, alleging harassment, false statements, tortious interference with a business relationship, breach of contract, and stalking. (Id.) Judge Springmann consolidated this action with the 347 Action pending before her. (Ex. I, J.)

         On August 22, 2014, the defendants filed their motion for judgment on the pleadings. Judge Springmann granted that motion and entered judgment on the pleadings in Cases 347 and 450 (Ex. I). Plaintiff did not appeal the decision.

         On May 16, 2016, Plaintiff filed a pro se complaint in this case. She obtained counsel and was granted leave to file a Second Amended Complaint on October 11, 2016 (DE #42-1).

         Defendants, Thomas McDermott, Tom Dabertin, Kim Nordhoff, Kurt Koch, and Darren Taylor moved for partial dismissal for failure to state a claim, and on January 4, 2017, this Court granted that motion (DE #63). The case then remained pending against Defendant, the City of Hammond, Indiana, and Counts IV, V, and VII remained pending against Defendant Nordhoff in her individual capacity.

         The instant motion for summary judgment was filed by Defendants, the City of Hammond and Kim Nordhoff, based upon principles of res judicata/claim preclusion, the applicable statute of limitations, the Monell doctrine, and qualified immunity.

         Undisputed Facts

         The Court notes that Defendants have submitted a Statement of Undisputed Material Facts, with citations to evidence in the record, including several affidavits (authenticating the Hammond Board of Public Works and Safety's record concerning the several board hearings held about the Gostlin St. property), and certified copies of the court dockets. (DE #82-1, 82-2-34.) In response, Plaintiff has failed to submit any Statement of Genuine Disputes, and has failed to properly assert that Defendants' facts are genuinely disputed.

         Plaintiff attached as exhibits: an affidavit by Rodolfo Herrera dated April 18, 2013, stating he signed a contract with Plaintiff to put a new roof on her property, however, the Code Enforcement Department refused to provide the requested building permits (DE #84-3) (but Herrera does not say why he was denied a building permit)[1]; an affidavit of Victoriano Pacheco, which states he installed electrical and wiring service at the Gostlin Street property in March of 2000 and that it was inspected and approved by a Hammond inspector named Bob (10 years before Nordhoff's inspections), and that the property was “in a safe structural condition” (DE #84-4); defendant's response in opposition to plaintiff's motion to amend complaint (DE #84-1), the Court's order granting the motion to amend because “Plaintiff [who was previously pro se] deserves a chance to plead her case with her lawyer's help” (DE #84-2); a Notice of Municipal Ordinance Violation dated May 14, 2010, in which Plaintiff has underlined the municipal requirement that “[t]he roof is tight and has no defects which admit rain” (DE #84-5), a bank loan statement (DE #84-6); a letter from Chase Bank concerning insurance claims fund (DE #84-7); pictures of the property (DE #84-8), and a portion of the Indiana Unsafe Building statute (DE #84-10).

         Local Rule 56-1 requires that a party opposing summary judgment file a response brief within 28 days after being served the motion and that the “response brief or its appendix must include a section labeled ‘Statement of Genuine Disputes' that identifies the material facts that the party contends are genuinely disputed so as to make a trial necessary.” N.D. IND. L.R. 56-1. (b). Plaintiff has not done so. Instead, she filed an “Objection to Defendants' Statement of Material Facts” (DE #85), in which she lists her vague objections (without citations to any evidence or anything in the record) to the completeness and accuracy of Defendants' statement of facts. This runs contrary to the federal rules which provide that “[a] party asserting that a fact cannot be or is genuinely disputed must support the assertion” either by “citing to particular parts of materials in the record” or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c). As this Court has noted before, “[i]t is within the Court's province to require parties to adhere to the local rules and strike non-conforming filings.” Cunningham v. State Farm Ins. Co., No. 2:04-CV-62, 2005 WL 3279365, at *1 (N.D. Ind. Dec. 2, 2005) (citing Schrott v. Bristol-Meyers Squibb Co., 403 F.3d 940 (7th Cir. 2005)). Defendants have not moved to strike Plaintiff's response; therefore, the Court will consider it. However, because Plaintiff has failed to submit a proper Statement of Genuine Issues, and has failed to properly controvert Defendants' statement of undisputed facts, the facts as set forth by Defendants will be deemed admitted. See Curtis v. Costco Wholesale Corp., 807 F.3d 215, 218-19 (7th Cir. 2015); Ammons v. Aramark Unif. Servs., 368 F.3d 809, 818 (7th Cir. 2004).

         The undisputed facts as set forth by the Defendants are as follows:

Sonia Moreno-Avalos owned a rental property at 551 Gostlin Street in Hammond, Indiana. (See Affidavit of Kim Nordhoff, attached as Exhibit A, ¶3.) On May 11, 2010, Hammond inspector Kim Nordhoff inspected the 551 Gostlin property and took photographs of the building's exterior. (Ex. A, ¶2.)

         On May 14, 2010, a notice of municipal ordinance violation was sent to Moreno-Avalos, notifying her that the condition of her property violated several municipal ordinances, including lack of a “tight” roof; and she was ordered to bring the property into compliance with the ordinances by repairing the defects within ten (10) days of the issuance of the notice. This matter was set for hearing on June 16, 2010 in the Hammond City Court. (Ex. A, ¶4, and Ex. A-1 attached thereto.)

         On June 28, 2010, the Hammond City Court ordered Moreno-Avalos to appear on July 14, 2010 in connection with these ordinance violations under cause No. 45H04-1005-OV-52851 (“City Court 851 Action”). (See certified Hammond City Court Docket for Cause No. 45H04-1005-OV-52851, attached as Exhibit E.)

         The matter was subsequently continued multiple times and another order to appear was issued on August 16, 2010. (Ex. E, see entries dated 7/16/2010, 8/16/2010, 9/13/2010, 9/20/2010.) On October 15, 2010, a default judgment was entered against Moreno-Avalos in Hammond City Court regarding the ordinance violations for which she was cited. (Ex. E, entry of 10/15/2010.)

         On April 20, 2011, Moreno-Avalos was notified of municipal ordinance violations regarding her property and was summoned to court for a hearing on May 19, 2011 under Cause No. 45H04-1105-OV-52897 (“City Court 897 Action”). (See certified Hammond City Court Records for Cause No. 45H04-1105-OV-52897, attached as Exhibit F, Bates stamped pp. 33-34, City of Hammond Notice of Municipal Ordinance Violation Citation and Summons to Court.)

         On May 17, 2011, Attorney David Weigle entered an appearance for Moreno-Avalos and moved to set aside default judgment in the City Court 851 Action on the basis of alleged lack of notice; and on May 18, 2011, the Hammond City Court set aside the default judgment. (See Affidavit of Kristina Kantar, attached as Exhibit D, ¶2 and Exhibit D-1 attached thereto; see also Exhibit E generally.) On May 19, 2011, the Hammond City Court scheduled a hearing in the City Court 897 Action for June 23, 2011. (Ex. F, p. 27.)

         On June 23, 2011, the Hammond City Court held a status conference in the City Court 897 Action and set a trial date of September 29, 2011, regarding Moreno-Avalos's municipal ordinance citations. (Ex. F, p. 28.) On July 11, 2011, inspector Kim Nordhoff prepared a list of municipal ordinance violations based on her previous inspections. (See Ex. A, ¶5, and Ex. A-2 attached thereto.) On September 29, 2011, the trial in the City Court 897 Action was continued to November 3, 2011; and on November 3, 2011, the trial was reset for December 8, 2011. (Ex. F, p. 2.)

         On December 7, 2011, a notice of violation was mailed to Moreno-Avalos notifying her that her property was inspected and found to be an unsafe building in violation of Indiana Code 36-7-9 et seq. and Sections 150, 96, and 160 of the Hammond City Code. Moreno-Avalos was also notified of the City's intention to demolish the building within thirty days. (See Affidavit of Kevin C. Smith attached as Exhibit C, ¶3 and Exhibit C-1 attached thereto.) A hearing on the notice of intent to demolish was set for January 12, 2012 before the Hammond Board of Public Works and Safety (“Board”). The notice provided that if Moreno-Avalos failed to appear for the hearing, the notice would automatically be considered a demolition order, subject to execution by the City. (Ex. C-1.) On December 8, 2011, the Hammond City Court trial in the 897 Action was vacated. (Ex. F, p. 2.)

         On December 20, 2011, Attorney Weigle appeared for Moreno-Avalos before the Board and requested that the hearing be continued to February 23, 2012. ...

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