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Schulz v. Pagel

United States District Court, W.D. Wisconsin

February 28, 2017

CRAIG SCHULZ, Plaintiff,
v.
DARIN PAGEL, SHANE VANDERWAAL, TOM HAYDEN, CITY OF MERRILL, WISCONSIN, and LINCOLN COUNTY, WISCONSIN, Defendants.

          OPINION & ORDER

          JAMES D. PETERSON District Judge

         Pro se plaintiff Craig Schulz filed a complaint alleging that defendants conspired to demolish his home, Dkt. 1, and paid his filing fee. But Schulz had asserted only state law claims against non-diverse defendants and had not properly pleaded the court's jurisdiction, so I required Schulz to amend his complaint. Dkt. 5. Schulz filed his amended complaint, Dkt. 6, and before I assessed whether the amended complaint properly pleads the court's jurisdiction, four of the five defendants appeared and filed their joint answer to the amended complaint. Dkt. 10.

         I still have an obligation to assess whether the court has subject matter jurisdiction. Schulz asserts in his amended complaint a class-of-one equal protection claim under the Fourteenth Amendment, so his claim arises under federal law. Accordingly, the court has subject matter jurisdiction under 28 U.S.C. § 1331.

         ALLEGATIONS OF FACT

         I draw the following facts from Schulz's original complaint and the amended complaint. For the purposes of this order, I accept his allegations as true. Scanlan v. Eisenberg, 669 F.3d 838, 841 (7th Cir. 2012).

         This case is about the demolition of Schulz's home. Schulz has a hoarding disorder and 23 years of “long history of disputes” with defendant City of Merrill, involving “vehicles and miscellaneous items” in his home. Dkt. 1, at 3. At one point, a law enforcement officer told Schulz that “he was walking on thin ice with the City, ” before a raze order was issued on his home. Dkt. 1, at 3.[1] Schulz alleges that the raze order was part of a conspiracy to demolish his home carried out by the five named defendants. Defendants Darin Pagel and Tom Hayden are municipal employees. Defendant Shane VanderWaal is an attorney who represented the City of Merrill in court. The other two defendants are the City of Merrill, Wisconsin and Lincoln County, Wisconsin.

         In September 2016, defendant Darin Pagel inspected the property with Schulz's permission. Just two days after the inspection, Pagel or the City issued a raze order to demolish Schulz's home under Wis.Stat. § 66.0413, and served the raze order on Schulz. According to Schulz, the stated reason for the raze order was that his home posed a danger to the public because of numerous items, such as the shingles, front porch, garage, and drywall. But Schulz maintains that his home did not pose a danger to the public, and he hired professional inspectors, who disagree with Pagel's conclusion. Schulz tried to learn why Pagel deemed his home dangerous, but Schulz states that the true reason for the raze order has been withheld from him. He also explains that he never had an opportunity to defend against the raze order or to make the necessary repairs to avoid the demolition of his home. In particular, he attempted to contact the City's building and zoning officials to obtain a list of the necessary repairs, but he did not receive a response. Dkt. 9, at 7. “[N]o other individual in Lincoln County” has been treated the same way, and Schulz alleges that the City and its employees singled him out for no “rational basis.” Id. at 6.

         He tried to enjoin and to challenge the raze order without a lawyer, but the circuit court in Lincoln County did not allow him to file any paper pro se. Running out of options, Schulz contacted Wilmington Savings Fund Society, the company that had claimed to have lien interest on Schulz's home. In October 2016, Wilmington sought to enjoin and to challenge the raze order in Lincoln County. In November 2016, the circuit court held a hearing and dismissed the action. Schulz states that, to date, defendants have not explained to Schulz how his home posed a danger. His complaints do not clearly state whether the City has actually razed his home yet.

         ANALYSIS

         A district court has “an independent obligation” to determine whether it has subject matter jurisdiction over the case “even when no party challenges it.” Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010). Unless a complaint adequately pleads subject matter jurisdiction, the court must dismiss the case. Smart v. Local 702 Int'l Bhd. of Elec. Workers, 562 F.3d 798, 802 (7th Cir. 2009). The party invoking federal jurisdiction bears the burden of establishing the basis for subject matter jurisdiction. Id. at 802-03. Schulz contends that the court has subject matter jurisdiction because his class-of-one equal protection claim arises under federal law.

         A plaintiff can properly invoke federal question jurisdiction when “his own cause of action shows that it” arises under federal law. Beneficial Nat. Bank v. Anderson, 539 U.S. 1, 6 (2003). Although a district court may reject a federal claim that is “wholly insubstantial, ” the Seventh Circuit has explained that “the bar is low”: a plaintiff fails to invoke federal jurisdiction “only if a suit is ‘utterly frivolous' on the face of the pleadings.” McCoy v. Iberdrola Renewables, Inc., 760 F.3d 674, 681 (7th Cir. 2014) (quoting Crowley Cutlery Co. v. United States, 849 F.2d 273, 278 (7th Cir. 1988)).

         A. Class-of-one equal protection claim

         Schulz properly invokes federal question jurisdiction because he asserts a colorable class-of-one equal protection claim, which arises under federal law. The Equal Protection Clause of the Fourteenth Amendment requires that similarly situated people be treated alike. U.S. Const. amend. XIV; see also City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). It prohibits discrimination based on “immutable characteristics” such as race, but it also prohibits so-called “class-of-one discrimination in which a government arbitrarily and irrationally singles out one person for poor treatment.” Brunson v. Murray, 843 F.3d 698, 705 (7th Cir. 2016) (citing Geinosky v. City of Chicago, 675 F.3d 743, 747 (7th Cir. 2012)). A paradigm of class-of-one cases is where a government official, “with no conceivable basis for his action other than spite or some other improper motive . . . comes down hard on a hapless private citizen.” Swanson v. City of Chetek, 719 F.3d 780, 784 (7th Cir. 2013) (quoting Lauth v. McCollum, 424 F.3d 631, 633 (7th Cir. 2005) (alteration in original)).

         The standard for prevailing on a class-of-one equal protection claim still remains “unsettled” in the Seventh Circuit, Brunson v. Murray, 843 F.3d 698, 706 (7th Cir. 2016), but in broad strokes, there are three elements: (1) plaintiff was “intentionally treated differently from others similarly situated”; (2) the difference in treatment had “no rational basis”; and (3) defendant acted with “ill-will, ” “illegitimate purpose, ” “animus, ” or “improper motive.” D.B. ex rel. Kurtis B. v. Kopp, 725 F.3d 681, 685-86 (7th Cir. 2013) (quoting Engquist v. Oregon Dept. of Agr., 553 U.S. 591, 601 (2008)). The first two requirements are uncontroversial, but as for the third requirement, the Seventh Circuit is ...


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