Michael Storey v. City of Alton, Illinois , 710 F. App'x 706 ( 2018 )

NONPRECEDENTIAL DISPOSITION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 1, 2018 *
Decided February 2, 2018
Before
DIANE P. WOOD, Chief Judge
MICHAEL S. KANNE, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 17-1978
MICHAEL STOREY, Appeal from the United States
Plaintiff-Appellant, District Court for the Southern District
of Illinois.
v.
No. 3:15-cv-1310-RJD
CITY OF ALTON, ILLINOIS,
Defendant-Appellee. Reona J. Daly,
Magistrate Judge.
ORDER
Michael Storey sued the City of Alton, Illinois, under 42 U.S.C. § 1983; he claimed
that the City had denied him equal protection of the laws by preventing him from
subdividing his land and by selectively enforcing local ordinances against him. After
both sides moved for summary judgment, the district court denied Storey’s motion and
granted the City’s. Storey appeals.
* We have agreed to decide this 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. See FED. R. APP. P. 34(a)(2)(C).
No. 17-1978 Page 2
We review de novo a district court’s decision on cross-motions for summary
judgment, construing all facts and drawing all reasonable inferences in favor of the
party against whom the motion under consideration was filed. Kemp v. Liebel, 877 F.3d
346, 350 (7th Cir. 2017). Here we recount the facts in the light most favorable to Storey.
Storey bought a five-acre plot of land in Alton in 1999. The next year, with plans
to develop the land into a subdivision with manufactured homes, Storey submitted a
plat—a diagram of the proposed subdivision—to the City. That plat was rejected in
2003 because the plans did not include a fire hydrant that could maintain water
pressure of a minimum of 500 gallons per minute. Storey submitted another plat in
2008, but he withdrew it. He then submitted two preliminary plats to the City in 2013,
but both were rejected after Storey failed to make numerous changes that the City
required for compliance with the City Code.
In addition to thwarting the proposed subdivision, the City has cited Storey
numerous times for violating local ordinances. In 2012 Storey was cited and found liable
for violating city ordinances prohibiting residents from having on their property (1)
high weeds and grass, (2) junk and trash, and (3) construction debris. See City of Alton v.
Storey, No. 5-12-0473, 2013 WL 4204855 (Ill. App. Ct. Aug. 14, 2013). And in 2015 he was
cited and found liable five more times because he had on his property (1) vehicles that
were illegally stored in a residentially zoned area, (2) inoperable vehicles, (3) high
weeds and grass, (4) trailer parts and lumber, and (5) a garage without a primary
structure. Appeals under the Illinois Administrative Review Law appear to be pending
in the state courts. 1
Storey filed this lawsuit in November 2015, claiming that the City violated his
right to equal protection of the laws by using “a double standard for water supply.” The
City, he alleged, allowed other owners to develop property without mandating the
same 500-gallons-per-minute water pressure for fire hydrants. He also asserted that the
City violated his right to equal protection by selectively enforcing against him the local
ordinances that prohibit certain conditions to exist on properties in the City. (Storey also
brought a state-law claim that the City falsified responses to FOIA requests he made to
help him defend against the ordinance violations; the district court declined
1 See MADISON COUNTY, ILLINOIS, COURT RECORDS SEARCH,
http://www.co.madison.il.us/departments/circuit_clerk/court_records_search.php
(last visited Dec. 14, 2017).
No. 17-1978 Page 3
supplemental jurisdiction over the claim, and Storey does not mention that claim on
appeal.)
A magistrate judge, presiding by consent, see 28 U.S.C. § 636(c), entered
summary judgment for the City, reasoning that Storey’s first claim was untimely under
the two-year statute of limitations applicable to § 1983 cases arising in Illinois because
Storey’s most recent proposal was rejected more than two years before he filed this suit.
See Campbell v. Forest Pres. Dist. of Cook Cty., Ill., 752 F.3d 665, 667 (7th Cir. 2014). Storey’s
second claim failed, the magistrate judge continued, because the City was “entitled to a
great deal of discretion” in enforcing city ordinances and because, similarly to the
plaintiff in Hilton v. City of Wheeling, 209 F.3d 1005 (7th Cir. 2000), Storey had not argued
or shown that the citations he received from the City were baseless.
On appeal Storey insists that his equal-protection claim related to the subdivision
of his land “cannot be time barred” because the City continues to deny him “the right to
use his property by requiring [Storey] to meet a standard for water supply” that is not
in the City’s code. But Storey is incorrect because, as he recognizes by arguing that he
will be able to use his land when the City approves his plat, his injury arises from the
City’s denial of his request to subdivide his land. His claim accrued when he knew or
should have known that his constitutional right to equal protection purportedly was
violated. See Draper v. Martin, 664 F.3d 1110, 1113 (7th Cir. 2011). This occurred when
the City denied approval, something which last occurred in September 2013, more than
two years before he filed this suit in November 2015.
Storey’s argument that the City’s denials of his proposals to subdivide his land
constitute a continuing violation that extends the limitations period is wide of the mark.
The “continuing violation” doctrine applies only when a claim accrues because a string
of events is grouped together, with the last event being timely. See Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 113, 115–17 (2002); Limestone Dev. Corp. v. Vill. Of Lemont,
Ill., 520 F.3d 797, 801 (7th Cir. 2008). Lingering effects of old injuries do not count under
this doctrine, see Limestone Dev. Corp., 520 F.3d at 801–02, and so Storey needed to
identify an injury that accrued within the limitations period. He has not done so; rather
he has reiterated that the lingering effects of the City’s plat denials continue to injure
him today, but that is insufficient to save this claim. See id.Storey next argues that the magistrate judge improperly entered summary
judgment for the City on his selective-enforcement claim because the City refuses to cite
No. 17-1978 Page 4
other property owners for code violations while “harassing” him with “baseless” 2
citations. The Equal Protection Clause prohibits state action that discriminates on the
basis of membership in a protected class or, as relevant here, that irrationally targets an
individual for discriminatory treatment as a so-called “class of one.” Reget v. City of La
Crosse, 595 F.3d 691, 695 (7th Cir. 2010). Class-of-one discrimination occurs if the
plaintiff “has been intentionally treated differently from others similarly situated
and . . . there is no rational basis for the difference in treatment.” Vill. of Willowbrook
v. Olech, 528 U.S. 562, 564 (2000). We have not precisely defined the contours of this
kind of claim. See Del Marcelle v. Brown Cty. Corp., 680 F.3d 887 (7th Cir. 2012) (en banc).
But Storey’s class-of-one claim fails under every approach we have considered, see id. at
889, 900, 917, because he provided no evidence that the City treated a similarly situated
landowner differently from him, nor has he shown that the City lacked a rational basis
for its actions. Storey points to other properties (ones he reported to the authorities),
which he says had the same conditions as ones he was cited for, as examples of citations
that the City should have issued but did not. But at summary judgment he had to
provide some evidence that these other properties were “identical or directly
comparable” to his “in all material respects.” LaBella Winnetka, Inc. v. Vill. of Winnetka,
628 F.3d 937, 942 (7th Cir. 2010); see McDonald v. Vill. of Winnetka, 371 F.3d 992, 1002–03
(7th Cir. 2004). The record lacks any such evidence. Moreover, Storey “admits that he
did commit certain ordinance violations and did pay fines for these violations,” and his
admission demonstrates that the City had a rational basis for citing him. See Miller
v. City of Monona, 784 F.3d 1113, 1121–22 (7th Cir. 2015). And anyway, Storey has no
right to insist that the City exercise its prosecutorial discretion to cite other property
owners. See United States v. Moore, 543 F.3d 891, 899–901 (7th Cir. 2008).
Accordingly, the district court’s decision on the parties’ cross-motions is
AFFIRMED.
To the extent that Storey now wants to challenge the violations as groundless,
2
we would abstain from reviewing any ongoing administrative proceedings,
see Younger v. Harris, 401 U.S. 37 (1971), and under the Rooker-Feldman doctrine, we
would not have jurisdiction to review any final decisions. See D.C. Court of Appeals
v. Feldman, 460 U.S. 462 (1983); Rooker v. Fid. Trust Co., 263 U.S. 413 (1923). In any case,
Storey appears to be challenging the validity of the citations for the first time on
appeal.