* After examining the briefs and the record, we have concluded that oral argument is

unnecessary. Thus the appeal is submitted on the briefs and the record. See Fed. R. App. P.

34(a)(2). 

# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted March 26, 2008 *

Decided March 27, 2008

Before

RICHARD A. POSNER, Circuit Judge

DIANE P. WOOD, Circuit Judge

TERENCE T. EVANS, Circuit Judge

No. 07

‐ 3547

JOHN L. LERCH,

Plaintiff

‐ Appellant

,

v.

CITY OF GREEN BAY, et al.,

Defendants

‐ Appellees

. United States District Court for the

Eastern District of Wisconsin.

No. 06

‐ C

‐ 454

William C. Griesbach,

Judge

.

O R D E R

This lawsuit presents the second case in which John Lerch—a landlord who owns

numerous low

‐ cost rental properties in Green Bay, Wisconsin—has alleged that the city of

Green Bay (“the city”) and several of its building inspectors violated his equal protection

rights by arbitrarily enforcing housing codes against him and not against similarly situated NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 07

‐ 3547 Page 2

property owners. In his first suit Lerch complained that the defendants cited him for,

among other things, having an unpaved driveway apron and litter on his property. Here

Lerch argues that the defendants treated him unequally when they razed buildings on two

of his properties for code violations that he says are similar to violations committed by other

property owners whose buildings were not razed. In both cases, the district court

concluded that Lerch could not prevail on his class

‐ of

‐ one equal protection theory because

he had not shown that he was similarly situated to other property owners who were treated

more favorably. We affirmed the district court’s judgment in the first suit, see Lerch v. City of

Green Bay

, 218 Fed. App’x 502 (7th Cir. 2007), and we affirm here as well.

Because Lerch did not respond to the defendants’ motion for summary judgment in

the manner required by Local Rule 56.2(b), the district court adopted the defendants’

proposed findings of fact. See E.D. W IS

. L OC

. R. 56.2(b)(2), (e). On appeal Lerch argues that

he complied by filing an affidavit and his own proposed findings of fact, but neither of

those documents provide the specific responses to the defendants’ proposed findings that

the local rules require. See id. Accordingly, our de novo review will rest on the defendants’

version of the facts. See Koszola v. Bd. of Educ. of the City of Chicago

, 385 F.3d 1104, 1109 (7th

Cir. 2004).

Lerch has owned rental properties in Green Bay for approximately 30 years, and his

tenants often have complained to the Green Bay Inspection Department about the

conditions of their homes. In the past 15 years, he has received numerous citations for code

violations. Lerch’s current allegations arise from actions that the city took with respect to

properties he owned on Crooks and Klaus Streets. In January 2005 Lerch bought the Crooks

Street property knowing that it had been condemned and that the city had issued to the

previous owners a notice to raze or repair. After Lerch received a notice to vacate the

property in June 2005, the city razed the building on the Crooks Street property. As for the

Klaus Street property, following a November 2004 inspection the city sent Lerch a notice of

code violations giving him until December 6, 2004, to bring the property into compliance.

When Lerch did not fully comply with the notice by the deadline, the city issued him a

citation. Five months later, a city alderman complained that work was being done at the

Klaus Street property without a permit. The city conducted a second inspection and

confirmed that Lerch was violating a municipal code by making repairs and remodeling

without a permit. After the city issued him a raze or repair order, Lerch agreed to obtain

the necessary permits by January 31, 2007. When he failed to comply with the deadline or

request an extension, the city razed the building on the Klaus Street property.

Lerch argues that the defendants violated his equal protection rights by enforcing

housing codes against him, and not, he says, against the owners of properties with similar

code violations. It is difficult to succeed on a class

‐ of

‐ one equal protection theory; to prevailNo. 07

‐ 3547 Page 3

Lerch must show that the defendants intentionally treated him differently from others

similarly situated, and that there is “no rational basis for the difference in treatment or the

cause of the differential treatment is a totally illegitimate animus.” See Maulding Dev’t, LLC

v. City of Springfield

, 453 F.3d 967, 969

‐ 70 (7th Cir. 2006) (quotation marks and citation

omitted); see also Vill. of Willowbrook v. Olech

, 528 U.S. 562, 564

‐ 65 (2000). Lerch must

demonstrate that the property owners the city treated differently from him were not just

similar, but “‘prima facie identical in all relevant respects.’” See Lauth v. McCollum

, 424 F.3d

631, 634 (7th Cir. 2005) (quoting Purze v. Vill. of Winthrop Harbor

, 286 F.3d 452, 455 (7th Cir.

2002)). The similarly situated test is a particularly high bar because “[v]arious factual traits,

circumstantial nuances, and peculiarities can set entities apart, rendering them, by virtue of

their differences, amenable to disparate treatment.” Racine Charter One, Inc. v. Racine Unified

Sch. Dist.

, 424 F.3d 677, 681 (7th Cir. 2005).

Lerch argues that the defendants violated his equal protection rights when they

razed the building on his Crooks Street property without giving him an opportunity to

correct the code violations, while they did provide such an opportunity to Dan Laes, the

owner of another condemned property. Laes submitted an affidavit stating that he bought a

property on Third Street knowing that it was condemned but that the city gave him time to

bring his property into code compliance. But as the district court found, Laes bought his

property from owners who had timely challenged the condemnation order, while the

previous owners of the Crooks Street property had not challenged its condemnation order.

This distinction alone is sufficient to show that Lerch and Laes were not similarly situated,

and gave the defendants a rational reason to treat their properties differently. See Ind. State

Teachers Assoc. v. Bd. of Sch. Comm’rs of the City of Indianapolis

, 101 F.3d 1179, 1182 (7th Cir.

1996) (noting that the equal protection clause is inapplicable where “the government is

treating unequally two persons that are prima facie unequal in a rationally relevant

respect”).

Lerch also argues that his Klaus Street property is the only one that the city had ever

razed while work was underway to correct code violations. But the only property owner he

identifies as similarly situated is Lloyd Larscheid, who averred that the city has always

allowed him time to make repairs after issuing him raze or repair orders and has never

razed any of his buildings. Again, this assertion is insufficient to show that Larscheid and

Lerch are similarly situated; there could be any number of differences in the number or

nature of their respective violations that would justify their disparate treatment. See, e.g.,

Racine Charter One, Inc.

, 424 F.3d at 681.

Finally, Lerch argues that by submitting photographs of other properties that he says

were in worse condition than his own he has shown that he was not treated the same as

other property owners. We are in no position to determine from these photographs whetherNo. 07

‐ 3547 Page 4

the properties shown are “prima facie identical” to Lerch’s. See Lauth

, 424 F.3d at 634. In

any event, the equal protection clause does not require “[c]omplete equality in

enforcement,” see id. at 633; Albiero v. City of Kankakee

, 246 F.3d 927, 932 (7th Cir. 2001), and

Lerch has pointed to nothing to show that he was unfairly singled out for enforcement other

than his own unexplained and unsupported assertions that the city does not like him.

Accordingly, the district court correctly concluded that Lerch cannot prevail on a class

‐ of

‐

one equal

‐ protection theory, and we AFFIRM its grant of summary judgment for the

defendants.