Geinosky v. City of Chicago, 11–1448.

• Citation: 675 F.3d 743
• Decision Date: 28 March 2012
• Docket Number: No. 11–1448.,11–1448.
• Parties: Mark GEINOSKY, Plaintiff–Appellant, v. CITY OF CHICAGO, et al., Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

675 F.3d 743

Mark GEINOSKY, Plaintiff–Appellant,
v.
CITY OF CHICAGO, et al., Defendants–Appellees.

No. 11–1448.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 13, 2012.Decided March 28, 2012.

[675 F.3d 745]

Lawrence V. Jackowiak (argued), Attorney, Law Offices of Lawrence V. Jackowiak, Chicago, IL, for Plaintiff–Appellant.

Christopher S. Norborg (argued), Attorney, City of Chicago Law Department, Chicago, IL, for Defendants–Appellees.

Before POSNER, WOOD, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

Plaintiff Mark Geinosky received twenty-four bogus parking tickets and made a federal case out of it. At first blush, this case might seem like a good candidate for the summary Rule 12(b)(6) dismissal granted by the district court. A closer look at the alleged facts, however, reveals a disturbing pattern. Absent a reasonable explanation, and none has even been suggested yet, the pattern adds up to deliberate and unjustified official harassment that is actionable under the Equal Protection Clause of the Fourteenth Amendment. We therefore reverse the dismissal of Geinosky's “class-of-one” equal protection claim as well as his related civil conspiracy claim. We affirm the dismissal of Geinosky's substantive due process claim, however. He has not pled facts suggesting a deprivation that meets the high threshold for such claims established by the Supreme Court and by our precedents.

All of Geinosky's parking tickets concerned the same Toyota and were received over a fourteen-month period beginning in October 2007. All arrived in the mail, typically in batches of three or four. All were written by officers of Unit 253 of the Chicago Police Department. Some of the tickets were inconsistent with others received at the same time, implying, for example, that the Toyota was in two places almost at once or was simultaneously double-parked and parked on the sidewalk. All thirteen of the tickets attributed to Officer Wilkerson and issued on May 2, July 8, August 27, and October 7, 2008 had sequential citation numbers and concerned alleged violations that occurred on each date at exactly 10:00 p.m. Ten of the tickets were issued while Geinosky's estranged wife was in possession of the Toyota. Another ten were issued after he got the car back, and the last four were issued even after Geinosky sold the Toyota. Because none of the twenty-four tickets were legitimate, Geinosky had all of them dismissed, but he had to go to court seven times to do so.

Before filing this lawsuit, Geinosky tried other paths to stop the harassment. He complained to police supervisors in Unit 253, to the police department's Internal Affairs Division, and to the Independent Police Review Authority. After Internal Affairs closed the case without investigating, Geinosky contacted the Chicago Tribune, which ran several stories about his plight as part of its Problem Solver column. The Internal Affairs Division then reopened the case and began an investigation. Geinosky also filed this lawsuit. While this appeal was pending, the Tribune reported that the internal investigation had resulted in a recommendation to fire several defendant officers from Unit 253. See Jon Yates, Problem Solver: Police cite 3 officers over fake tickets; man vindicated, Chicago Tribune, Nov. 7, 2011, available at http:// www. chicagotribune. com/ business/ problemsolver/ ct– biz– 1107– problem– geinosky– 20111107, 0, 7221534. column (last visited Mar. 23, 2012).¹

[675 F.3d 746]

Geinosky sued the City of Chicago and eight of the officers then assigned to Unit 253 under 42 U.S.C. § 1983. He alleges “class-of-one” discrimination in violation of the Equal Protection Clause, denial of substantive due process rights, and an unlawful civil conspiracy. The district court dismissed all claims on defendants' Rule 12(b)(6) motion for failure to state a claim. We affirm only with regard to the substantive due process claim. The district court, relying on McDonald v. Village of Winnetka, 371 F.3d 992, 1009 (7th Cir.2004), held that Geinosky's equal protection claim failed because he did not specifically identify a similarly situated individual who was treated differently. In selective investigation or prosecution cases such as McDonald, a “meaningful application of the ‘similarly situated’ requirement” serves to distinguish between constitutional claims for discrimination and ordinary tort claims, and the plaintiff must eventually offer evidence of a similarly situated person. Id. But as we explain below, in a straightforward official harassment case like the allegations here, forcing the plaintiff to name a person not so severely harassed serves no such purpose (and in any event certainly is not necessary in the complaint itself). Are there people in Chicago who have not received more than a dozen bogus parking tickets from the same police unit in a short time? Geinosky could find hundreds of those people on any page of the Chicago phone book.

We review de novo the district court's dismissal for failure to state a claim, presuming the truth of the facts alleged in Geinosky's complaint and drawing all reasonable inferences in his favor. E.g., London v. RBS Citizens, N.A., 600 F.3d 742, 745 (7th Cir.2010). We discuss

[675 F.3d 747]

each of his claims below, starting with equal protection.

I. Equal Protection “Class–of–One ”

The Equal Protection Clause of the Fourteenth Amendment, ratified to help protect the equality that had been won in the Civil War, is most familiar as a guard against state and local government discrimination on the basis of race, national origin, sex, and other class-based distinctions. E.g., Loving v. Virginia, 388 U.S. 1, 8–12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); see also United States v. Virginia, 518 U.S. 515, 533–34, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) (heightened scrutiny for legal classification based on sex). The Equal Protection Clause has also come to be understood to protect individuals against purely arbitrary government classifications, even when a classification consists of singling out just one person for different treatment for arbitrary and irrational purposes. To state a so-called “class-of-one” equal protection claim, Geinosky must allege that he was “intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591, 601, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008), citing Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). We have held that class-of-one claims can be brought based on allegations of the irrational or malicious application of law enforcement powers. E.g., Hanes v. Zurick, 578 F.3d 491, 495 (7th Cir.2009) (holding that Engquist exemption for public employment decisions does not extend to law enforcement decisions). Although the police are necessarily afforded wide discretion in performing their duties, that discretion does not extend to discriminating against or harassing people. The district court correctly found that nothing bars a properly pled class-of-one equal protection claim in this context, but it erred when it found that Geinosky's pleadings were insufficient to state such a claim.

Courts have understood that if class-of-one claims are not defined appropriately, they might turn many ordinary and inevitable mistakes by government officials into constitutional violations and federal lawsuits. One element of a proper class-of-one claim is a wrongful act that necessarily involves treatment departing from some norm or common practice. McDonald, 371 F.3d at 1009. But “the purpose of entertaining a ‘class of one’ equal protection claim is not to constitutionalize all tort law nor to transform every claim for improper provision of municipal services or for improper conduct of an investigation in connection with them into a federal case.” Id. The appropriate limiting principle must be tailored to the type of government action at issue.

For example, because the government traditionally is given even more discretion in its role as employer than in its role as enforcer of the law, public employees simply do not have recourse to class-of-one claims if they are singled out for firing. Engquist, 553 U.S. at 607, 128 S.Ct. 2146 (“we are guided, as in the past, by the ‘common-sense realization that government offices could not function if every employment decision became a constitutional matter’ ”). To bring an equal protection claim, public employees aggrieved by their firing must be able to allege and later prove discrimination against a protected class. Under Engquist, the prohibition on class-of-one claims in the public employment context is categorical....