John Lerch v. City of Green Bay

NONPRECEDENTIAL DISPOSITION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 April 3, 2019 *
Decided April 3, 2019
Before
JOEL M. FLAUM, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 18-2632
JOHN L. LERCH, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District
of Wisconsin.
v. No. 17-C-654
CITY OF GREEN BAY, et al., William C. Griesbach,
Defendants-Appellees. Chief Judge.
ORDER
John Lerch, a landlord who owns low-cost rental properties in Green Bay,
Wisconsin, has repeatedly sued the city and its housing inspectors for allegedly
violating his equal-protection rights. (This is his fourth such suit in the past decade.) In
this suit, Lerch again contends that the city has selectively enforced housing codes
*
We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 18-2632 Page 2
against his properties. The district court entered summary judgment for the city and its
employees. We affirm.
Because Lerch did not respond to the defendants’ motion for summary judgment
in the manner required by the local rules, the district court adopted the defendants’
proposed findings of fact, and we do the same. See E.D. WIS. CIV. R. 56(b)(1)(C); Salvadori
v. Franklin Sch. Dist., 293 F.3d 989, 992 (7th Cir. 2002). For more than 30 years, Lerch
regularly has received tenant complaints, code-violation citations, and raze-or-repair
orders against his properties. After he failed to timely bring five of his properties up to
code, the city issued orders to raze four of them (the “Klaus,” “Crooks,” “George,” and
“Ashland” properties) and to condemn the fifth (the “Broadway” property). In two
prior suits, Lerch unsuccessfully challenged the orders against the Klaus, Crooks, and
George properties, arguing that the city and its housing inspectors violated his equal-
protection rights by enforcing housing codes more strictly against him—a “class of
one”—than against other owners. See Lerch v. City of Green Bay, 218 Fed. App’x 502
(7th Cir. 2007) (Lerch I); Lerch v. City of Green Bay, 271 Fed. App’x 528 (7th Cir. 2008)
(Lerch II). After the city razed the Klaus property, Lerch brought a third class-of-one
action against the city, also unsuccessfully, and we upheld the judgment on claim-
preclusion grounds. See Lerch v. City of Green Bay, 406 Fed. App’x 46 (7th Cir. 2010)
(Lerch III).
In the complaint underlying this appeal, Lerch again brought a class-of-one
challenge in response to the razing of the Klaus, Crooks, and George properties and, for
the first time, asserted equal-protection claims related to his properties on Ashland and
Broadway. Lerch named as defendants a few housing inspectors whom he had not sued
previously, but he continued to press the same argument that he had brought against
the city and other inspectors in Lerch I, II, and III: that the defendants selectively
enforced housing codes against him and not against the owners of 14 properties with
similar code violations. The district court entered summary judgment for the
defendants, concluding that Lerch had not offered evidence (1) that the property
owners he identified were identical to him or (2) that the defendants lacked a rational
basis for issuing citations and condemnation orders based on housing-code violations.
On appeal, Lerch maintains that he has presented sufficient evidence from which
it can be inferred that his properties on Klaus, Crooks, George, Ashland and Broadway
are similarly situated to the 14 properties he identified. We agree with the district court
that Lerch has neither identified similarly situated property owners who received better
treatment than he did, nor has he offered evidence that the city lacked a rational basis
No. 18-2632 Page 3
for razing or condemning his properties. See Vill. of Willowbrook v. Olech, 528 U.S. 562,
564 (2000); Srail v. Vill. of Lisle, Ill., 588 F.3d 940, 945–46 (7th Cir. 2009). He provided no
evidence that the 14 comparator properties were subject to code violations, tenant
complaints, or inspections, so he did not show—as he was required to—that they were
“identical in all relevant respects” to his properties. Srail, 588 F.3d at 945. For that
matter, the evidence of the code violations on his properties provides a rational basis for
razing and condemning those buildings. See Miller v. City of Monona, 784 F.3d 1113,
1120–22 (7th Cir. 2015).
Lerch also argues that the district court erred in striking a proposed amendment
to his complaint, but we see no abuse of discretion. Lerch filed it well outside the
window for amendments as of right—on the day that dispositive motions were due—
and did not request permission to amend from the court or the defendants. See FED. R.
CIV. P. 15(a); Liebhart v. SPX Corp., 917 F.3d 952, 964–65 (7th Cir. 2019).
We have considered Lerch’s remaining arguments and not one has merit.
Any further frivolous appeals will subject Lerch to monetary fines and a possible
bar order under Support Sys. Int’l, Inc. v. Mack, 45 F.3d 185, 186 (7th Cir. 1995).
AFFIRMED