371 F.3d 992 (7th Cir. 2004), 03-1457, McDonald v. Village of Winnetka

Docket Nº:03-1457.
Citation:371 F.3d 992
Party Name:Charles M. MCDONALD, Plaintiff-Appellant, v. VILLAGE OF WINNETKA, Ronald Colpaert, Scott Smith and Mitchell S. Kushner, Defendants-Appellees.
Case Date:June 17, 2004
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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371 F.3d 992 (7th Cir. 2004)

Charles M. MCDONALD, Plaintiff-Appellant,

v.

VILLAGE OF WINNETKA, Ronald Colpaert, Scott Smith and Mitchell S. Kushner, Defendants-Appellees.

No. 03-1457.

United States Court of Appeals, Seventh Circuit

June 17, 2004

Argued Feb. 25, 2004.

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Constantine L. Trela, Jr. (Argued), Sidley Austin Brown & Wood, Chicago, IL, for Plaintiff-Appellant.

James A. Clark, Ronald S. Safer (Argued), Schiff, Hardin & Waite, Chicago, IL, Mary E. Welsh (Argued), Office of the Attorney General, Civil Appeals Division, Chicago, IL, for Defendants-Appellees.

Before CUDAHY, ROVNER and WILLIAMS, Circuit Judges.

CUDAHY, Circuit Judge.

This case raises the question: what could be worse than having most of your home burn down in a fire? The answer, of course, is having the rest of it burn down a couple of days later in a second fire. What would make the situation dramatically worse, however, is if the fire department determined that the second fire was intentionally set (possibly by you) and called in federal authorities to investigate, thus requiring you to invest substantial energy, time and money defending against such allegations. Such a scenario would be particularly outrageous if the fire department did not actually believe that the second fire was intentionally set but was merely trying to draw attention away from the possibility that it had been negligent in putting out the first fire. According to Charles M. McDonald of Winnetka, Illinois, this is exactly what happened to him. McDonald responded by bringing a constitutional equal protection "class of one" claim in the Northern District of Illinois against the Winnetka Fire Department, following our precedent in Olech v. VIll. of Willowbrook, 160 F.3d 386 (7th Cir. 1998),

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aff'd, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). After extensive discovery, and an unsuccessful motion to dismiss, the district court eventually granted defendants' motion for summary judgment. For the reasons discussed infra, we affirm the decision of the district court because McDonald, in invoking the constitution, has failed to identify someone similarly situated but treated differently.

I

Given the limited ground upon which we affirm the district court, our discussion of the facts of this case is relatively abbreviated. For a more detailed factual account, we refer the reader to the district court's lengthy discussion. See McDonald v. Village of Winnetka, No. 00 C 3199, 2003 WL 168637, at *1-*15 (N.D.Ill. January 23, 2003). We note that McDonald contends that the district court's recitation of the facts is one-sided and fails to construe the facts in the light most favorable to the non-moving party. Upon independent review, however, we find the district court's discussion of the facts of this case to be fair and balanced. There simply is not enough space in the Federal Reporters or on Westlaw's hard drives to discuss explicitly every fact and counter-fact which supports or affects each party's claim. Merely because a fact or argument has not been explicitly laid out does not mean that it has not been given serious consideration by the court. That being said, we take you to McDonald's first fire.

1. The first fire

Sometime during the afternoon of May 10, 1999, a fire erupted at McDonald's home at 894 Sunset Road, Winnetka, Illinois. The Winnetka Fire Department (WFD) arrived at McDonald's home at approximately 4:09 p.m. Among those firefighters present were Ronald Colpaert, the Fire Chief; Scott Smith, the Deputy Fire Chief; and other firefighters from Winnetka and from various surrounding communities. Colpaert and Smith did not know McDonald before the May 10 fire. After more than four hours of fighting the fire, it was eventually extinguished at approximately 8:27 p.m. that same day.

In a subsequent investigation, WFD was able to determine that the May 10 fire started in the sunroom at the east end of the first floor of McDonald's home and was caused by a spark from an electrical outlet that ignited some paint stripping product. Fire, smoke and heat damaged various rooms on the first and second floors of McDonald's home, including the breakfast nook.

At the time of the May 10 fire, firefighters with the WFD knew that McDonald's home contained cellulose insulation that burned and smoldered. Cellulose insulation was present throughout the walls of the attic-level bedroom, the other rooms in the attic and above the kitchen and break-fast nook ceiling, among other places. The WFD had dealt with other insulation fires. In 1995, the WFD trained its personnel with videos that specifically pertained to attic fires and cellulose insulation. If not fully extinguished, cellulose insulation can smolder undetected for periods exceeding 2-3 days and can then ignite nearby combustible materials, such as beams or studs. Therefore, in accordance with common practice, a WFD firefighter returned to McDonald's home on the evening of May 10, to inspect the house for "hot spots." One hot spot was found and extinguished.

Diane Curtis, McDonald's wife, was outside the home on May 11 and 12, but did not report that she smelled smoke or any burning or smoldering material. Tom Robertson of the WFD was also at McDonald's home for several minutes on May 11, around 2:30 p.m. He viewed the exterior of the building from the street and did

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not see any signs of smoke. Various other employees of the Village of Winnetka were at McDonald's home on May 11 and 12, and did not report seeing or smelling any smoke or any burning or smoldering material.

At approximately 11:00 a.m. on May 11, Steven Strus, the General Adjuster employed by McDonald's insurer, Atlantic Mutual Insurance Company, met with the insureds at the house. They surveyed both the interior and exterior of the home and did not report seeing any smoke or smelling anything burning or smoldering. A disagreement arose between McDonald and Strus regarding the extent of the damage to the house caused by the first fire. McDonald voiced his opinion that the house was a total loss, but Strus did not agree.

McDonald was in his home on May 12 to let workers in between 9:00 a.m. and 9:30 a.m. He returned at about 11:30 or 11:45 a.m. and remained in the building until approximately 1:00 or 1:15 p.m. McDonald did not report seeing any smoke or smelling anything smoldering or burning at that time. At the scene of a fire that erupted later on May 12, however, McDonald told Colpaert that he might have seen a wisp of smoke or steam while he was home that afternoon. McDonald claimed that he did not report it at that time because he thought that his mind was playing tricks on him. Except for the WFD firefighter who detected and extinguished a hot spot the evening of May 10, no one who had either been in the building or who had viewed the outside of the building between the two fires reported seeing, smelling or otherwise sensing smoke or burning material in the building prior to the report of the fire. Strus, the insurance adjuster, reported that McDonald had called him at approximately 3:30 p.m. on May 12, and "was very adamant that the dwelling be considered a total loss."

Brian Funches, the mail carrier on the route that included McDonald's home reported having observed what he described as a gray Blazer containing a man and two children in the driveway of McDonald's home at about 4:30 p.m. on May 12, approximately a half hour before a fire was reported.

2. The second fire

At approximately 5:08 p.m. on May 12, the WFD was dispatched to McDonald's home because of the subsequent fire. Colpaert commanded at the fire scene with Smith's assistance, along with other firefighters from Winnetka and from surrounding communities. Upon arriving at the scene, the WFD found that a large fire had vented itself through the roof toward the center of the structure. The fire was extinguished by approximately 8:50 p.m. Colpaert appointed WFD Captain Dale Solberg as the lead investigator of the cause and origin of the May 12 fire. At the scene of the fire, McDonald asked a number of the firefighters what had caused the fire, but they responded that they did not know. He may also have inquired about the WFD's potential liability if the fire were a rekindle.

Because Colpaert wanted a thorough and complete cause and origin investigation, he requested that additional fire investigators from other fire departments report to McDonald's home on May 12, to conduct a cause and origin investigation. This procedure is known as requesting a "fire investigator box." The State Fire Marshal was also called to conduct a cause and origin investigation. The fire investigator box for the May 12 fire dictated that an investigator from each of Northbrook, Northfield and Winnetka participate in the cause and origin investigation of the May 12 fire. These individuals and Mitchell Kushner, a Special Agent assigned to the

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Division of Arson Investigation for the Office of the Illinois State Fire Marshal (OISFM), arrived at the scene on May 12, 1999. Kushner, who happened to be a good friend of Solberg, had received extensive training in fire investigation, including investigation into the origins and causes of fires.

In October 1999, Solberg wrote the following email to an online community of arson investigators, in which he colorfully discussed the decision to call in outside investigators:

Let me take it one step further. Your department has a fire in a residential structure. Approximately 48 hours after the first fire, a second fire happens. Everyone is starting to think rekindle. Everyone around is thinking the same thing. The structure has a value of over $1,000,000.00. The homeowner says to the Fire Chief, "who is responsible for this...

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