Lerch, John v. City of Green Bay , 218 F. App'x 502 ( 2007 )

NONPRECEDENTIAL DISPOSITION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 February 21, 2007*
Decided February 23, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 06-3046
JOHN L. LERCH, Appeal from the United States
Plaintiff-Appellant, District Court for the Eastern
District of Wisconsin
v.
No. 05-C-484
CITY OF GREEN BAY, et al.,
Defendants-Appellees. William C. Griesbach,
Judge.
ORDER
John Lerch appeals the district court’s grant of summary judgment for the
defendants on his equal protection claim. We affirm.
Lerch, a white male, rents out nine residential properties that he owns in
Green Bay to low-income tenants. Some of these tenants have complained to the
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. Fed. R. App. P. 34(a)(2).
No. 06-3046 Page 2
city about the condition of the properties. Over the last 15 years, city inspectors
have cited the properties repeatedly for housing code violations, including
uncollected rubbish, an unpaved driveway apron, chipped paint, and insufficient
weather-proofing of exterior surfaces; city inspectors have also ordered debris
removed from the properties at Lerch’s expense. Many of such citations and orders
were issued without prior warning or notice. Lerch complained to the city and the
Inspection Department that enforcement of the housing code was unfair because he
was cited for the same violations committed by owners of nearby properties, who he
surmised had not been cited.
After his complaints went unheeded, Lerch brought a “class of one” equal
protection claim against the City of Green Bay and several building inspectors
under 42 U.S.C. § 1983, alleging that his properties had been singled out for
disproportionately harsh treatment. Discovery ensued, and eventually the court
granted summary judgment to the defendants. The court determined that Lerch
had not presented sufficient evidence that he was similarly situated to other
property owners who were not cited or that he was subjected to any disparate
treatment that was irrational or motivated by some illegitimate animus or ill will.
Lerch first challenges in only general terms the district court’s conclusion
that he could not establish a class-of-one claim. To establish this claim, a plaintiff
must present evidence that a government official treated him differently from other
similarly situated individuals and that there was no rational basis for the
treatment. RJB Properties, Inc. v. Bd. of Educ. of the City of Chicago, 468 F.3d
1005, 1009-10 (7th Cir. 2006). See also Vill. of Willowbrook v. Olech, 528 U.S. 562,
564 (2000). Lerch argues that he has shown that similarly situated owners were
treated differently because he was cited for having an unpaved driveway apron,
while other nearby properties seemingly avoid citation, since their driveway aprons
continue to be unpaved.
Lerch, however, cannot meet his “very significant burden” of introducing
evidence that the other individuals are similarly situated in all relevant respects.
RJB Properties, 468 F.3d at 1010. He offered no proof, for instance, that the owners
of those properties owned many rental properties containing multiple code
violations, that their tenants had complained to the city, or that the other owners
were not cited, much less that the same inspector made the decision in each case.
See Maulding Dev., LLC v. City of Springfield, 453 F.3d 967, 971 (7th Cir. 2006).
He thus has not shown that he was similarly situated to another property owner
who was not cited.
Lerch also suggests that the district court should not have granted summary
judgment to the defendants without considering their intransigence in refusing to
timely answer his discovery requests. But the defendants answered his requests a
No. 06-3046 Page 3
week after they moved for summary judgment and almost a month before his
response was due. If Lerch was not satisfied with the pace of their responses, he
should have asked for additional time for discovery under Fed. R. Civ. P. 56(f), see
Deere & Co. v. Ohio Gear, 462 F.3d 701, 706 (7th Cir. 2006), or moved to compel
defendants’ compliance under Fed. R. Civ. P. 37(a), see Woods v. City of Chicago,
234 F.3d 979, 990-91 (7th Cir. 2000).
Finally, Lerch suggests that the district court erred in denying him leave to
amend his complaint to add allegations of subsequent incidents that he had with
city inspectors over his properties. The district court denied his initial attempts at
amendment because he failed to follow the court’s local procedural rules. The court
then denied Lerch’s most recent request because it would have required additional
discovery and unduly delayed the case. Given that any delay would require the
court to push back deadlines for discovery and dispositive motions, we note no
abuse of discretion in the court’s ruling. See Bethany Pharm. Co., Inc. v. QVC, Inc.,
241 F.3d 854, 861-62 (7th Cir. 2001).
Lerch’s remaining challenges warrant no discussion.
AFFIRMED.