United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge
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.
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.
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).
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. 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.
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.
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.
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.
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)).
Class-of-one equal protection claim
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)).
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 ...