Albiero v. City of Kankakee

• Decision Date: 05 April 2001
• Docket Number: No. 00-1693,00-1693
• Citation: 246 F.3d 927
• Parties: (7th Cir. 2001) 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
• Court: U.S. Court of Appeals — Seventh Circuit

Page 927

246 F.3d 927 (7th Cir. 2001)

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.

No. 00-1693

In the United States Court of Appeals For the Seventh Circuit

Argued November 9, 2000

Decided April 5, 2001

Appeal from the United States District Court for the Central District of Illinois. No. 97 CV 2138--Michael P. McCuskey, Judge.

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,...