Albiero, Ernest F. v. City of Kankakee , 246 F.3d 927 ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1693
ERNEST F. ALBIERO,
Plaintiff-Appellant,
v.
CITY OF KANKAKEE, DONALD E. GREEN, Individually,
and as Agent of City of Kankakee,
and other unknown
agents for the City of Kankakee,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of Illinois.
No. 97 CV 2138--Michael P. McCuskey, Judge.
Argued November 9, 2000--Decided April 5, 2001
Before FLAUM, Chief Judge, and RIPPLE and KANNE,
Circuit Judges.
RIPPLE, Circuit Judge. Ernest Albiero brought
this action against the City of Kankakee, Mayor
Donald Green, and other unknown agents of the
City (collectively "the City"). He alleged that
his right to equal protection of the laws had
been violated when the City placed a "slum lord"
sign on his property. The district court granted
summary judgment for the City. For the reasons
set forth in the following opinion, we affirm the
decision of the district court.
I
BACKGROUND
A.
Mr. Albiero owns several rental properties in
Kankakee. On June 11, 1997, the City placed a
sign in front of his property located at 805 S.
Third St./1 The sign read:
SLUM PROPERTY!
THE OWNER OF THIS PROPERTY:
ERNEST ALBIERO
. . .
IS IN VIOLATION OF CITY CODE
AND CHOOSES NOT TO BRING
THIS PROPERTY INTO
COMPLIANCE THEREBY
SIGNIFICANTLY CONTRIBUTING
TO THE BLIGHT IN THIS
NEIGHBORHOOD
R.14, Ex.A.
The sign was placed as part of a City policy
implemented by then-Mayor Green. In April 1997,
the mayor had read a newspaper article from
Syracuse, New York, that described that city’s
placement of slum lord signs on the front lawns
of various properties to encourage landlords to
comply with city codes. At about the same time
that Mayor Green reviewed the article, the City
received a petition signed by 93 residents that
complained about the condition of a rental
property located at 2020 W. Station Street in
Kankakee. The residents requested in the petition
that the owner (not Mr. Albiero) "restore the
well being of this property" and eliminate the
conditions they perceived as adding blight to
their neighborhood. R.32, Ex.13 at 1.
The mayor met with the city attorney,
Christopher Bohlen, and various aldermen to
discuss the feasibility of implementing the
Syracuse program in Kankakee. Bohlen then drafted
a policy to guide the City’s placement of the
signs. That policy provided that signs would be
placed in those locations that (1) appeared
dilapidated and not in compliance with applicable
property maintenance codes based upon exterior
appearance; (2) received repeated citations for
failure to comply with the codes; (3) had been
the subject of repeated complaints by neighbors;
(4) had a clearly deleterious effect upon the
neighborhood in which they were located.
The mayor decided to employ the program, a
decision memorialized in the same memorandum
written by Bohlen that explained the procedures
to be followed in selecting properties for sign
placement. Employing the four factors outlined in
Bohlen’s draft plan, Terry Lewis, the assistant
chief of the City’s fire department who oversees
the code enforcement office, and Larry Nolan, the
code official in charge of day-to-day operations,
were to recommend to the mayor various properties
that they thought warranted the placement of a
sign. After reviewing the files on these
properties, the mayor was to select no more than
15 properties. The policy further indicated that
signs would be removed once a property was
repaired and deemed to be in "substantial
compliance with applicable codes." R.32, Ex.15.
Mayor Green initially selected five properties.
He testified that the properties chosen were
those that consistently had not been in
compliance with City codes. The first was the
property referred to in the citizens’ petition;
another was Mr. Albiero’s property at issue in
this appeal.
B.
Mr. Albiero’s property has a history of code
violations. On July 2, 1996, for example, the
City inspected his property and took numerous
photographs showing holes in the walls,
discoloration of ceiling tile that indicated
leakage from the roof, and inoperative smoke
detectors. Consequently, the City’s fire
department sent Mr. Albiero a three-page letter
the next week that listed those conditions that
presented fire hazards and indicated that the
items must be given "immediate attention in the
interest of fire and life safety." R.32, Ex.5 at
1. The letter further admonished that the
dwelling had been declared "UNFIT FOR HUMAN
HABITATION." Id. at 3.
A second letter was sent to Mr. Albiero on July
11, 1996, this time containing a list of code
violations seven pages in length. Mr. Albiero was
given 60 days to correct the violations that
included the infestation of roaches and fleas,
broken doors and windows, and the use of
extension cords to supply electricity in
apartments where the power had been turned off
and propane tanks to fuel natural gas stoves in
apartments where the gas had been turned off. On
September 25, 1996, Mr. Albiero was issued 24
citations for ordinance violations. The Kankakee
County circuit court later dismissed the
citations on March 11, 1997, because they were
not issued within 60 days of the inspection.
A follow-up inspection of Mr. Albiero’s property
was conducted on March 20, 1997. Photographs were
again taken that illustrated the deplorable
condition of the building. A plumbing inspection
was completed the same day; the inspector found
numerous problems with the plumbing in the
building, including a lack of water in some of
the bathrooms and an uncapped sewer gas line. He
also noted that the "entire building [was] bug &
cockroach infested." R.31, Ex.10. The inspector
concluded that the building remained unfit for
human habitation.
On April 8, 1997, the fire department sent a
third letter to Mr. Albiero, again listing
numerous violations that needed to be rectified.
No citations, however, were issued based upon the
March 20 inspection.
C.
Before deciding to place the slum lord sign on
Mr. Albiero’s property on June 11, 1997, Mayor
Green reviewed the information forwarded to him
by Lewis and Nolan. In the file was information
regarding the July 1996 and March 1997
inspections, including photographs. Mayor Green
also was personally familiar with the dwelling;
he passed by it "every day driving to and from
work" and noted that it was "in a dilapidated
condition compared to the surrounding
properties." R.32, Ex.22 at 2. He saw extension
cords running between windows and noted that a
door on the front of the building was missing.
As of August 20, 1997, the City had erected 14
slum lord signs. By October 1998, the City had
put up between 19 and 22 signs, and approximately
seven had been removed because of subsequent
compliance with City codes. In Mr. Albiero’s
case, the sign was removed following an
inspection in December 1998.
D.
Mr. Albiero previously has filed lawsuits
against the City. These suits were related to his
ownership of property; as the district court
explained in an earlier order, Mr. Albiero "has
tangled with the various Kankakee city officials
a number of times over various issues such as
inspections, permits, repairs, etc." R.11 at 1.
Many of these disputes have made their way to
state or federal court. See Albiero v. City of
Kankakee, No. 97-2759, 1998 WL 416531 (7th Cir.
June 16, 1998) (affirming the dismissal of three
separate cases filed in the district court);
Albiero v. City of Kankakee, 122 F.3d 417 (7th
Cir. 1997) (affirming the dismissal of a case
filed in the district court); Albiero v. City of
Kankakee, No. 3-95-0487 (Ill. App. Ct. 1996)
(rejecting a challenge to the constitutionality
of a City ordinance that required the inspection
of residential rental units).
E.
Mr. Albiero brought this present action against
the City in June 1997, alleging violations of the
Fourth and Fourteenth Amendments of the United
States and Illinois constitutions, illegal use of
motor tax revenue, and defamation, all relating
to the City’s placement of the slum lord sign on
his property. The district court dismissed the
majority of the claims but granted leave to file
within 30 days an amended complaint stating any
remaining claims.
Mr. Albiero filed an amended complaint in
December 1997. In that complaint, Mr. Albiero
alleged an equal protection violation;
specifically, he indicated that the sign
placement was "premeditated and malicious, and
done with the sole intent to embarrass, harass,
and humiliate the Plaintiff in retaliation for
the filing of prior lawsuits against the City of
Kankakee." R.14 at 7. He asserted that he was
entitled to damages pursuant to 42 U.S.C. sec.
1983 for the City’s malicious and retaliatory act
of placing the sign on his property. He also
alleged a state-law defamation claim.
The City filed a motion to dismiss, which the
district court granted only as to the defamation
claim. As for the equal protection claim, the
district court determined that the amended
complaint alleged a claim for selective
prosecution/malicious retaliation as outlined by
the Seventh Circuit in Esmail v. Macrane, 53 F.3d
176 (7th Cir. 1995).
In June 1999, the City filed a motion for
summary judgment. The district court granted the
City’s motion; it concluded that Mr. Albiero had
not presented enough evidence to create a genuine
issue of material fact regarding his claims that
(1) the City had singled him out for differential
treatment when it placed the slum lord sign on
his property and (2) the City’s action was in
retaliation for the prior litigation between the
parties and was wholly unrelated to any
legitimate state objective.
II
ANALYSIS
A. Standard of Review
We review de novo the district court’s decision
to grant summary judgment to the City. See
Bellaver v. Quanex Corp., 200 F.3d 485, 491 (7th
Cir. 2000). Summary judgment is proper when the
"pleadings, depositions, answers to
interrogatories, and admissions on file, together
with the affidavits, if any, show that there is
no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a
matter of law." Fed. R. Civ. P. 56(c). In
determining whether a genuine issue of material
fact exists, we must view the record in a light
most favorable to the nonmoving party. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986).
Because the primary purpose of summary judgment
is to isolate and dispose of factually
unsupported claims, the nonmovant may not rest on
the pleadings but must respond, with affidavits
or otherwise, "set[ting] forth specific facts
showing that there is a genuine issue for trial."
Fed. R. Civ. P. 56(e). The evidence must create
more than "’some metaphysical doubt as to the
material facts.’" Johnson v. University of
Wisconsin-Eau Claire, 70 F.3d 469, 477 (7th Cir.
1995) (quoting Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986)). A
mere scintilla of evidence in support of the
nonmovant’s position is insufficient, see Liberty
Lobby, 477 U.S. at 252; a party will be
successful in opposing summary judgment only when
it presents "definite, competent evidence to
rebut the motion." EEOC v. Sears, Roebuck & Co.,
233 F.3d 432, 437 (7th Cir. 2000) (citation and
quotation marks omitted).
B. Equal Protection Claim
1.
The Supreme Court has "recognized successful
equal protection claims brought by a ’class of
one,’ where the plaintiff alleges that [he] has
been intentionally treated differently from
others similarly situated and that there is no
rational basis for the difference in treatment."
Village of Willowbrook v. Olech, 528 U.S. 562,
564 (2000).
Under our circuit precedent, an individual also
may state a claim under the Equal Protection
Clause if he can show that state government took
an action that "was a spiteful effort to ’get’
him for reasons wholly unrelated to any
legitimate state objective." Esmail v. Macrane,
53 F.3d 176, 180 (7th Cir. 1995). The Equal
Protection Clause provides a remedy when a
"powerful public official pick[s] on a person out
of sheer vindictiveness." Id. at 178. This type
of discrimination has been characterized as the
creation of a "class of one." Indiana State
Teachers Ass’n v. Board of Sch. Comm’rs, 101 F.3d
1179, 1181-82 (7th Cir. 1996). To prevail, the
plaintiff must demonstrate that the government is
treating unequally those individuals who are
prima facie identical in all relevant respects,
see id., and that the cause of the differential
treatment is a "totally illegitimate animus
toward the plaintiff by the defendant." Olech v.
Village of Willowbrook, 160 F.3d 386, 388 (7th
Cir. 1998), aff’d on other grounds, 528 U.S. at
565. If the "defendant would have taken the
complained-of action anyway, even if it didn’t
have the animus, the animus would not condemn the
action." Id. Ill will must be the sole cause of
the complained-of action. See id. A showing of
"uneven law enforcement," standing alone, will
not suffice. Id.
2.
The district court determined that the evidence
presented by Mr. Albiero was insufficient to
preclude summary judgment. The court noted that
Mr. Albiero did not present "any competent
evidence" that the City singled him out for
differential treatment when it placed the slum
lord sign on his property; nor did he show that
the City’s actions were a "spiteful effort to
’get’ him in retaliation for the prior litigation
between the parties and was wholly unrelated to
any legitimate state objective." R.41 at 11-12.
a.
Mr. Albiero cannot maintain an equal protection
claim because, most fundamentally, he has not
offered any evidence that he was treated
differently from other similarly situated rental
landlords. Indeed, Mr. Albiero was treated like
other landlords, at least like the other 20 or so
landlords who received the slum lord signs. The
record contains no evidence that Mr. Albiero’s
property was in a better condition than the other
locations where signs were placed. The City
inspected his property on two separate occasions-
-in July 1996 and March 1997--and found it to be
in a deplorable state both times. These
conclusions were detailed in reports,
photographs, and in the three separate letters
that the City sent to Mr. Albiero. In short, on
this record, Mr. Albiero was treated no
differently than the other landlords whose
properties ran afoul of the City’s policy.
Mr. Albiero does little to help his case, as he
must when confronted with a summary judgment
motion. See Fed. R. Civ. P. 56(e). He offers no
evidence that he was singled out for unfair
treatment; more precisely, he does not
demonstrate that the lamentable state of his
property was corrected before the sign was
erected. Mr. Albiero puts forth only his own
affidavit that no violations existed in June
1997, based not on a personal inspection but on a
policy of repairing any violations within 72
hours. He also avers in conclusory fashion that
there were numerous inspections of the building
thereafter that evidenced no violations.
Under our precedent, these conclusory
statements, unsupported by the evidence of
record, are insufficient to avoid summary
judgment. We repeatedly have held that "[s]elf-
serving affidavits without factual support in the
record will not defeat a motion for summary
judgment." Slowiak v. Land O’Lakes, Inc., 987
F.2d 1293, 1295 (7th Cir. 1993); see also Drake
v. Minnesota Mining & Mfg. Co., 134 F.3d 878, 887
(7th Cir. 1998) ("Rule 56 demands something more
specific than the bald assertion of the general
truth of a particular matter[;] rather it
requires affidavits that cite specific concrete
facts establishing the existence of the truth of
the matter asserted.") (citation and quotation
marks omitted). We require that the party
opposing the motion take reasonable steps to
provide the district court sufficient evidence to
create a genuine issue of material fact. See
Shank v. William R. Hague, Inc., 192 F.3d 675,
683 (7th Cir. 1999); see also Schacht v.
Wisconsin Dep’t of Corr., 175 F.3d 497, 504 (7th
Cir. 1999) (indicating that summary judgment "is
the ’put up or shut up’ moment in a lawsuit, when
a party must show what evidence it has that would
convince a trier of fact to accept its version of
events").
Mr. Albiero cannot meet his burden on summary
judgment merely by averring that he followed a
repair policy. He must point to evidence in the
record that indicated that he was treated
differently than other similarly situated
landlords, and this he does not do. See Indiana
State Teachers Ass’n, 101 F.3d at 1181-82. Mr.
Albiero has offered no photographs, independent
inspection reports, or other evidence that would
tend to establish that the sign was erected even
though the property did not meet the criteria of
the program as stated in the city attorney’s
memorandum./2
b.
There is certainly no concrete evidence that the
City picked on Mr. Albiero "out of sheer
vindictiveness." Esmail, 53 F.3d at 178. Mr.
Albiero’s submission that the City acted solely
out of vindictiveness for his having brought
other litigation against the City is pure
speculation. On the contrary, the record shows
that the City took action against Mr. Albiero’s
property because it was in a dilapidated
condition. Mr. Albiero has offered no concrete
evidence to support his assertion that the City
did not make its decision pursuant to an
established policy and under an established
procedure.
Conclusion
In opposing the summary judgment motion of the
defendants, Mr. Albiero did not present
sufficient evidence to create a jury question as
to whether the City of Kankakee singled him out
for unfair treatment when it placed a slum lord
sign on his property. Accordingly, we must affirm
the judgment of the district court.
AFFIRMED
/1 The 3’ by 5’ sign was erected on the parkway
between the sidewalk running in front of the
property and the facing street.
/2 We note that the city attorney’s memorandum does
not make the issuance or adjudication of a formal
code violation an absolute prerequisite to the
inclusion of a building in the signage program.