Indiana Land Trust 3082 v. Hammond Redevelopment Commission

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 24-1006
I NDIANA LAND TRUST #3082, et al.,
Plaintiffs-Appellants,
v.
HAMMOND R EDEVELOPMENT
C OMMISSION , et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:21-cv-201 — John E. Martin, Magistrate Judge.
____________________
A RGUED M AY 30, 2024 — DECIDED J ULY 10, 2024
____________________
Before ST. EVE, K IRSCH , and K OLAR , Circuit Judges.
ST. EVE, Circuit Judge. On a parcel between Indianapolis
Boulevard and the Water Gardens neighborhood in Ham-
mond, Indiana, sits a lucrative fireworks and tobacco busi-
ness. The City of Hammond seeks to use its eminent domain
power to take that parcel, raze the structure, and connect the
roadway and neighborhood. The eminent domain action is
playing out in Indiana state court. This action asks the federal

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2 No. 24-1006
courts to intervene—by enjoining the proceeding and award-
ing damages—for the alleged constitutional and federal law
violations arising from the eminent domain action. Because
the plaintiffs’ sweeping conspiratorial allegations fail to state
a claim, we affirm the district court’s dismissal of their third
amended complaint with prejudice.
I. Background
At the pleadings stage, “we construe the complaint in the
light most favorable to the plaintiff[s], accepting as true all
well-pleaded facts alleged, and drawing all possible infer-
ences in the plaintiff[s’] favor.” Proft v. Raoul, 944 F.3d 686, 690
(7th Cir. 2019) (cleaned up).
A. Factual Background
Owned by Indiana Land Trust #3082, the property at 1318–
1320 Indianapolis Boulevard in Hammond, Indiana, is home
to a business that sells fireworks and tobacco products. The
Trust’s beneficiaries, brothers Omar and Haitham Abuzir, op-
erate the business. (For ease of reading, we refer to the broth-
ers and the Trust—the plaintiffs here—collectively as “the
Abuzirs.”) The business is quite lucrative, due in part to its
proximity to the border with Illinois (where fireworks are
more regulated)—for obvious reasons, this location is more
desirable than that of other Hammond fireworks businesses.
Others also find the location desirable. The trust property
sits between the well-traveled Indianapolis Boulevard and the
Water Gardens neighborhood. Vacant, undeveloped lots flank
the property’s other two sides.
Previously, Parkview Avenue provided an access route be-
tween Indianapolis Boulevard and Water Gardens to the
northwest of the trust property. But this access route closed in

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No. 24-1006 3
2011 when Hammond officials deemed it a public safety haz-
ard. Since then, Water Gardens has had no direct access to In-
dianapolis Boulevard.
Now, the City of Hammond seeks to reconnect the neigh-
borhood to the major roadway. It does not wish to reopen the
prior access route, however. Instead, it has set its sights on the
trust property.
B. Procedural Background
1. State Court Proceedings
The yearslong bid to acquire the trust property began in
January 2018 when the Hammond Redevelopment Commis-
sion (the “Commission”) offered to purchase it. The Commis-
sion’s stated purpose was to provide better road access to Wa-
ter Gardens. The proposed road would run straight through
the structure on the trust property rather than through any of
the abandoned lots bordering it. The Abuzirs declined the of-
fer.
The Commission thus commenced an action in Indiana
state court to condemn the trust property in accordance with
Indiana’s eminent domain statute. See Ind. Code § 32-24. Un-
der this statute, a “would-be condemnor fil[es] a complaint in
the trial court,” to commence a condemnation proceeding. See
Bender Enters., LLC v. Duke Energy, LLC, 201 N.E.3d 206, 209
(Ind. App. Ct. 2022) (citing Ind. Code § 32-24-1-4(a)). “The
property owner may then file objections,” including “lack of
subject matter or personal jurisdiction; lack of authority ‘to
exercise the power of eminent domain for the use sought;’ or
[may object] ‘for any other reason disclosed in the complaint
or set up in the objections.’” Id. (quoting Ind. Code § 32-24-1-

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4 No. 24-1006
8(a)). Notably, the property owner can only lodge objections;
they cannot assert counterclaims. See Ind. Code § 32-24-1-8(c).
The state court condemnation proceeding is ongoing. The
Abuzirs have lodged a number of objections in that proceed-
ing, including that the Commission is acting beyond its au-
thority, that the taking is for a private purpose and is moti-
vated by ill will and political purposes, and that a road
through the trust property is neither the most efficient nor
most cost-effective means to provide access to Water Gardens.
2. Federal Court Proceedings
Unable to assert counterclaims in the condemnation pro-
ceeding, the Abuzirs filed this action against the City of Ham-
mond, the Commission and its members, and Hammond
Mayor Thomas McDermott (together, “the City”). The City re-
moved the case to federal court. The Abuzirs claim a litany of
federal violations relating to an alleged conspiracy. We need
not recount all the ins and outs of the conspiracy here. It boils
down to this: the City conspired with certain businessown-
ers—who are supporters of Mayor McDermott and competi-
tors of the Abuzirs in the fireworks industry—to abuse the
eminent domain power and take the Abuzirs’ property be-
cause they are not McDermott supporters.
Since this action’s inception in 2021, the Abuzirs have re-
peatedly tried to plead claims relating to this alleged conspir-
acy. And the district court has repeatedly dismissed them.
Relevant here, the district court first denied the Abuzirs leave
to add claims for violations of substantive due process under
the Fourteenth Amendment and for civil conspiracy under 42
U.S.C. § 1983. It found that the substantive due process claim
was futile because the City had a legitimate government

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No. 24-1006 5
interest in condemning the trust property: that is, building a
road. And it found that, because the Abuzirs failed to plead
any independent violation of rights separate from their ulti-
mately unsuccessful equal protection claim, the conspiracy
claim was likewise futile.
The court thereafter granted the City’s motion to dismiss
the remaining claims in the third amended complaint, includ-
ing a § 1983 class-of-one equal protection claim. It reasoned
that the complaint evinced a rational basis for the City’s ac-
tions. Given the Abuzirs’ repeated failure to state a claim, this
time the court dismissed the complaint with prejudice. The
Abuzirs appeal.
II. Analysis
The Abuzirs challenge the district court’s decisions dis-
missing their equal protection claim and denying them leave
to add substantive due process and § 1983 conspiracy claims.1
We address each in turn.
A. Equal Protection
We review the district court’s decision dismissing the
Abuzirs’ Fourteenth Amendment equal protection claim de
novo. 2 Gonzalez v. McHenry Cnty., 40 F.4th 824, 827 (7th Cir.
1 The Abuzirs also state they are challenging the dismissal of their Mo-
nell claim, but they do not advance any developed arguments to that effect.
Any such arguments are thus waived. See Crespo v. Colvin, 824 F.3d 667,
674 (7th Cir. 2016).
2 At the outset, we observe that this case was a prime candidate for
abstention under the Colorado River doctrine. See, e.g., Antosh v. Vill. of
Mount Pleasant, 99 F.4th 989, 996 (7th Cir. 2024) (finding Colorado River ab-
stention appropriate in parallel federal litigation arising from an eminent

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6 No. 24-1006
2022). “To survive a motion to dismiss, a complaint must con-
tain sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Id. “A claim has ‘facial
plausibility’ when the allegations allow the court to ‘draw the
reasonable inference that the defendant is liable for the mis-
conduct alleged.’” Id.
For their equal protection claim, the Abuzirs rely on the
so-called “class-of-one” theory. Under this theory, on some
rare occasions, a plaintiff who is not a member of a protected
class may nevertheless succeed on an equal protection claim.
See 145 Fisk, LLC v. Nicklas, 986 F.3d 759, 771 (7th Cir. 2021).
“To state a claim under this theory, a plaintiff must allege
‘(1) that [they] ha[ve] been intentionally treated differently
from others similarly situated, and (2) that there is no rational
basis for the difference in treatment.’” Id. (quoting Fares Pawn,
LLC v. Ind. Dep't of Fin. Insts., 755 F.3d 839, 845 (7th Cir. 2014)).
The district court concluded that the Abuzirs failed to state
a claim under either prong. As to the first, the Abuzirs chal-
lenge the court’s assessment that they failed to identify any
specific similarly situated comparators in their complaint.
True, we have “repeatedly confirmed that ‘[p]laintiffs alleg-
ing class-of-one equal protection claims do not need to iden-
tify specific examples of similarly situated persons in their
complaints.’” Miller v. City of Monona, 784 F.3d 1113, 1120 (7th
domain taking). The issues raised in the Abuzirs’ federal complaint largely
mirror the objections they lodged in the state condemnation proceeding.
Accordingly, the state court’s disposition of those objections may well dis-
pose of the federal claims. Nevertheless, given that the district court dis-
posed of the claims on the merits at the pleadings stage, and given that we
can likewise easily dispose of the issues on the merits here, we find the
interests of justice do not favor our abstaining at this juncture.

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No. 24-1006 7
Cir. 2015) (quoting Capra v. Cook Cnty. Bd. of Review, 733 F.3d
705, 717 (7th Cir. 2013)). But the court did not stop there. It
went on to provide an independent, sufficient reason for dis-
missing the claim: there was a rational basis for the City’s con-
duct.
We agree. On its face, the Abuzirs’ complaint reveals the
requisite rational basis: building a road to connect a neighbor-
hood to a major roadway. The complaint alleges that the City
asserted that the taking is for a road to reconnect Water Gar-
dens and Indianapolis Boulevard, the Commission’s mem-
bers voted to approve the taking at a public meeting, and a
witness for the Commission testified that they selected the
trust property because of its location. We are not “hypothesiz-
ing” this rational basis for the City’s actions—the Abuzirs
supplied it themselves. In doing so, they “have pleaded them-
selves out of court.” D.B. ex rel. Kurtis B. v. Kopp, 725 F.3d 681,
686 (7th Cir. 2013).
Resisting this conclusion, the Abuzirs argue we cannot ig-
nore their well-pleaded allegations of animus and improper
motive. Specifically, pointing to the allegations that the City
is punishing political rivals and does not intend to actually
build a road, they argue that they have undercut any conceiv-
able rational basis for the City’s conduct.
Our recent decisions foreclose this argument. When eval-
uating the second prong of a class-of-one claim, we ask only
“whether ‘a conceivable rational basis for the difference in
treatment’ exists.” 145 Fisk, 986 F.3d at 771 (quoting D.B., 725
F.3d at 686). “It is only when courts can hypothesize no ra-
tional basis for the action that allegations of animus come into
play.” Id. (emphasis added) (quoting Flying J Inc. v. City of New
Haven, 549 F.3d 538, 547 (7th Cir. 2008)).

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8 No. 24-1006
The complaint reveals such a rational basis: the City is tak-
ing the trust property to build a road. True or not, we may
look no further. After all: “We just need to identify a conceiv-
able rational basis for the different treatment; it does not need
to be the actual basis for defendant’s actions.” Chicago Studio
Rental, Inc. v. Ill. Dep’t of Comm., 940 F.3d 971, 980 (7th Cir.
2019). The Abuzirs fail to state a class-of-one claim.
B. Substantive Due Process
The Abuzirs next take aim at the district court’s decision
denying them leave to amend, which we review for abuse of
discretion. Nowlin v. Pritzker, 34 F.4th 629, 635 (7th Cir. 2022).
But where, as here, “the basis for denial is futility,” we review
de novo the legal basis for the futility, “apply[ing] the legal
sufficiency standard of Rule 12(b)(6) to determine whether the
proposed amended complaint fails to state a claim.” Id. (quo-
tation marks omitted).
We first consider the Abuzirs’ proposed substantive due
process claim. We need not wade into the parties’ debate as to
whether, and under what circumstances, a plaintiff may bring
a substantive due process claim arising from a taking in this
Circuit. See Doherty v. City of Chicago, 75 F.3d 318, 325 (7th Cir.
1996) (recognizing “the potential for a substantive due pro-
cess claim in the context of land-use decisions that are arbi-
trary and unreasonable, bearing no substantial relationship to
the public health, safety, or welfare”). Even assuming we rec-
ognize such a claim, the Abuzirs fail to state one here.
In general, to state a substantive due process claim, a
plaintiff must allege a deprivation of a “protected life, liberty
or property interest.” Zorzi v. Cnty. of Putnam, 30 F.3d 885, 894
(7th Cir. 1994). “Unless a governmental practice encroaches

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No. 24-1006 9
on a fundamental right, substantive due process requires only
that the practice be rationally related to a legitimate govern-
mental interest, or alternatively phrased, that the practice be
neither arbitrary nor irrational.” Gen. Auto Serv. Station v. City
of Chicago, 526 F.3d 991, 1000 (7th Cir. 2008). Given that “[t]his
rational-basis variant of substantive due process differs little,
if at all, from the most deferential form of equal protection re-
view,” Hayden ex rel. A.H. v. Greensburg Cmty. Sch. Corp., 743
F.3d 569, 576 (7th Cir. 2014), the Abuzirs can proceed on a sub-
stantive due process claim here only if they can allege that the
City “violated a fundamental right or liberty,” Lukaszczyk v.
Cook Cnty., 47 F.4th 587, 599 (7th Cir. 2022) (quoting Campos v.
Cook Cnty., 932 F.3d 972, 975 (7th Cir. 2019)).
They fail to do so. In fact, as counsel conceded at oral ar-
gument, they do not point to any life, liberty, or property in-
terest at all. The most obvious choice would perhaps be their
interest in the trust property. But recall, the condemnation
proceeding is still ongoing in state court. As of yet, the City
has not taken the property. Indeed, should the state court rule
in the Abuzirs’ favor, then there will never be a taking, and
thus no deprivation. The “absence of any claim by the
[Abuzirs] that an interest in liberty or property has been im-
paired is a fatal defect in [their] substantive due process argu-
ment.” Zorzi, 30 F.3d at 894.
That the Abuzirs’ rights may yet be vindicated in state
court provides another reason their substantive due process
claim is futile. We have repeatedly emphasized that “regard-
less of how a plaintiff labels an objectionable land-use deci-
sion (i.e., as a taking or as a deprivation without substantive
or procedural due process), recourse must be made to state
rather than federal court.” 145 Fisk, 986 F.3d at 770 (quoting

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10 No. 24-1006
CEnergy-Glenmore Wind Farm No. 1, LLC v. Town of Glenmore,
769 F.3d 485, 489 (7th Cir. 2014)). The Abuzirs have an ade-
quate opportunity to litigate near-identical allegations as ob-
jections in the condemnation proceeding and cannot trans-
form them into a substantive due process claim here.
The Abuzirs’ proposed substantive due process claim is
futile. The district court did not abuse its discretion in deny-
ing leave to add that claim.
C. Civil Conspiracy
Finally, the Abuzirs challenge the district court’s refusal to
grant them leave to add a § 1983 conspiracy claim. Yet, to state
such a claim, “a plaintiff must allege first that the defendant
has deprived the plaintiff of a right secured by the Constitu-
tion and laws of the United States.” Starnes v. Cap. Cities Me-
dia, Inc., 39 F.3d 1394, 1396 (7th Cir. 1994). For the reasons dis-
cussed above, the Abuzirs have failed to state any claim that
the City violated their constitutional rights. Accordingly, add-
ing a § 1983 conspiracy claim would have been futile, and so
the district court did not abuse its discretion in denying that
request.
III. Conclusion
The Abuzirs have raised these allegations before the state
court as objections in the ongoing condemnation proceeding.
In the meantime, they may not relitigate those objections,
even thinly disguised as federal claims. The judgment of the
district court is A FFIRMED.

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