Opinion
Cause No. IP01-0058-C-T/K.
May 18, 2004
ENTRY ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This Entry is a matter of public record and may be made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
In this Section 1983 action the Plaintiff alleges federal claims for denial of procedural due process and equal protection as well as state law claims. The Defendants seek summary judgment on the remaining federal claims and request a remand of the state law claims.
I. FACTUAL BACKGROUND
Ernest E. Stone owns and operates E. Stone's Mobile Home Park in the Town of Hope (the "Town" or "Hope"), Bartholomew County, Indiana. Hope Utilities provides the water and sewer service for the park. John Glick was a member of the Town Board and Hope utilities manager.
On September 8, 1987, the Town approved Stone's application for the installation of one single and nineteen double meters on his trailer park. These meters allowed the residents of the trailer park to be billed individually for their water and sewer usage. Before installation of the meters, Stone was required to obtain the necessary approvals from the Indiana State Board of Health. Stone also paid $6,975.00 in hook-up fees to Hope Utilities to install the meters.
The minutes of the Hope Town Council meeting of May 3, 1999, reflect that the council would address ongoing problems of past due utility accounts at Stone's trailer park. (Defs.' Mot. Summ. J., Ex. A ¶¶ 2, 9 Ex. A5 at 2.) The August 30, 1999, minutes of the Town Council reflect that the collection problems at the Stone trailer park were discussed. A motion was made and passed to bill all individual services at the Stone trailer park to Stone, beginning with the September billings. ( Id., Ex. A ¶ 11 Ex. A7 at 1; see also Defs.' Mot. Summ. J., Ex. B ¶ 15.) This decision was made to make this billing identical with that of Springwood Mobile Homes and in conformance with Ordinance 9-87(c)(4) of the Hope Town Code, and for the additional reason that there were recurring problems with Stone's tenants leaving with unpaid water bills that for all practical purposes were uncollectible. (Defs.' Mot. Summ. J., Ex. B ¶ 15.) The bills were largely uncollectible because Stone's tenants would leave without notice, address unknown. ( Id.)
On December 6, 1999, the Defendants sent Stone a letter indicating their desire to install a single meter in his trailer park. The letter indicated that Stone would be given sixty days notice prior to changing meters.
At the Town Council meeting of April 17, 2000, the council discussed problems with meter reading, and Mr. Glick requested approval for the purchase of electronic meters. The Town Council decided to replace all existing water meters with a new digital system and voted to purchase new electronic meters and install them at a cost not to exceed $105,000. (Defs.' Mot. Summ. J., Ex. A ¶¶ 2, 13 Ex. A9 at 1 Ex. B, Shoaf Aff. ¶ 2.) The reasons for this decision were to advance both the accuracy and efficiency in water readings and to save a considerable amount of town employees' time in meter reading and clerical time in the transfer of meter readings and preparation of bills. (Defs.' Mot. Summ. J., Ex. B ¶ 2.) The new system has achieved substantial savings in employee time. ( Id., Ex. C, Hatton Aff. ¶ 6.) As well, under the new system, the readings on digital meters are electronically transmitted into a digital reader, without any chance for misreading water usage. ( Id., Ex. B ¶ 2.) The costs of the new digital system, including installation of the new digital meters, were paid for by the Town rather than the water customers. The new digital meter reading and billing system for the Town was installed in the summer of 2000. ( Id., Ex. C ¶ 7.) Every customer of the Town is on the new digital system with a digital meter. ( Id., Ex. B ¶ 3.)
Without any additional notice, in early June 2000, Hope Utilities installed a single meter on Stone's trailer park. Any mechanical meters Stone may have had at his trailer park since 1987 are no longer readable by the Town's new system and could not be used by the Town to register water usage on his property. (Defs.' Mot. Summ. J., Ex. B ¶ 4.) This is made impossible by their pre-digital technology. ( Id.)
Within the Town there are two trailer parks, Springwood Mobile Homes, owned by John Nading, and Ernest Stone Mobile Homes. (Defs.' Mot. Summ. J., Ex. B ¶ 5 Ex. C ¶ 8.) The streets around which the mobile homes are clustered in the two trailer parks are not dedicated streets of the Town, but instead are private drives on private property. The Town therefore does not maintain them, as it does dedicated streets. ( Id., Ex. B ¶ 6.) The two trailer parks both receive a single water bill from the Town for all their tenants. ( Id. ¶ 11.) The tenants of these trailer parks do not have separate addresses along public streets; instead, they have clusters of mail boxes all in one place for all tenants. ( Id. ¶ 12.)
Chris Thayer is a third landlord in the Town who rents mobile homes. His mobile homes are placed along dedicated streets of the Town. ( Id. ¶ 7.) Thayer's tenants have separate street addresses along dedicated streets and separate mail boxes for each rented mobile home. The Town has billed most of Thayer's tenants separately for water. The delivery of water and mailing of bills to these mobile homes is comparable to the delivery and mailing to any other private residence in the Town. ( Id. ¶ 13.) Mr. Thayer has a group of three trailer tenants who are on a single meter and have been billed together by the Town in a single bill to Mr. Thayer. ( Id. ¶ 14; Defs.' Mot. Summ. J., Ex. B ¶ 5 Ex. C ¶ 8.)
Ordinance 9-87(c)(4) of the Hope Town Code provides regarding "responsibility of owners of rental property":
In the case of rental premises, all water rates shall be charged to the owner(s) of the properties receiving water service and such owner(s)'s consent to and shall become liable for said water furnished to said premises. All delinquent charges shall be a lien upon the real estate of the owner[.]
(Defs.' Mot. Summ. J., Ex. A ¶¶ 2-4 Ex. A1(a) at 8.) Ordinance 99-05, dated May 17, 1999, states "that it is in the best interests of the Town for only one water meter to be installed in a mobile home park[.]" ( Id., Ex. A, A1(b) at 4.) The ordinance provides that "A municipal sanitary sewer and municipal water system shall be installed in accordance with Town specifications, but only one (1) water meter shall be installed per mobile home park." ( Id.) Other than the ordinances attached as Exhibit A1(a) and Exhibit A1(b) to the affidavit of Shirley Robertson, Town Clerk-Treasurer, there are no other ordinances or regulations of the Town regarding the Hope Water Utility. (Defs.' Mot. Summ. J., Ex. A, Robertson Aff. ¶ 5.)
The Hope Utilities Department does not retain any deposit for service or other fees paid by either Ernest Stone or John Nading, the owner of Springwood Mobile Homes. (Defs.' Mot. Summ. J., Ex. C ¶¶ 1, 8.) No agreements or applications for service signed by Ernest Stone were located by a clerk of the Hope Utilities Department. ( Id. ¶¶ 1, 9.) Both Mr. Nading and Mr. Stone receive a single water bill for water usage of all their tenants. ( Id., ¶¶ 10, 11.)
The Plaintiff filed a complaint against the Town, Hope Utilities, the Hope Town Council, and John Glick, individually and as Hope Utilities Manager, alleging violations of the Due Process Clause and Equal Protection Clause, inverse condemnation, and breach of contract. The Defendants previously filed a motion to dismiss, which was granted in part. They have now filed a motion for summary judgment, seeking judgment on the remaining federal claims and requesting a remand of the state law claims. The Plaintiff has responded and the Defendants replied.
II. DISCUSSION
The Plaintiff alleges a procedural due process claim, an equal protection claim, and state law claims. The Defendants move for summary judgment on the federal claims remaining following the Entry on Motion to Dismiss (dismissing the procedural due process claim against Defendant Glick in his individual capacity) and seek a remand of the state law claims. The Plaintiff opposes the motion. Having considered the record before it, the court finds that the motion should be granted as to the federal claims remaining and that the state law claims should be remanded.
On summary judgment the court views the facts and draws all reasonable inferences in favor of the nonmoving party, in this case Mr. Stone. See Nevel v. Village of Schaumburg, 297 F.3d 673, 678 (7th Cir. 2002). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see Nevel, 297 F.3d at 678.
A. Procedural Due Process Claim
The Plaintiff asserts a procedural due process claim. He contends he was entitled to due process before having the multiple meters which had been installed on his property removed. The claim is analyzed by first deciding whether the Plaintiff was deprived of a protected property interest, which requires an examination of whether (1) the Plaintiff had a protected property interest, and (2) whether he was deprived of that interest. Dixon v. City of New Richmond, 334 F.3d 691, 694 (7th Cir. 2003). Only if the court finds a protected property interest and a deprivation of that interest need it determine what process was due the Plaintiff. Id.
Not all property interests are protected by the Due Process Clause. "If you have a legal entitlement, you have `property.' If not, not." Mid-American Waste Sys., Inc. v. City of Gary, Ind., 49 F.3d 286, 289 (7th Cir. 1995) (citations omitted). Thus, "`property' depends on `a legitimate claim of entitlement[.]'" Id. (citing Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972)); see also Beischel v. Stone Bank Sch. Dist., 362 F.3d 430, 435 (7th Cir. 2004) ("To have a protectable property interest, a plaintiff must show a legitimate claim of entitlement, not just a hopeful expectation."). Courts look to independent sources such as state law, or in this case municipal ordinances, to determine whether a property interest exists. See Roth, 408 U.S. at 577; Dixon, 334 F.3d at 694.
Here, the Plaintiff identifies several Town ordinances which may be the basis for his claimed protected property interest: Ordinance 10-25, Ordinance 9-88 and Ordinance 99-05. The Plaintiff then too hastily disposes of Ordinance 99-05, which states that only one meter shall be installed per mobile home park, arguing that it is inapplicable to his mobile home park. (Pl.'s Resp. Defs.' Mot. Summ. J. at 7.)
The minutes of the Town Council May 3, 1999, meeting reflect that Town Attorney Cindy Boll advised that Ordinance 99-05 did not apply to established trailer parks (Defs.' Mot. Summ. J., Ex. A5 at 2), and Mr. Glick testified that his recollection was that the ordinance would not apply to Mr. Stone (Pl.'s Resp., Ex. 3, Glick Dep. at 40-41). The views of Attorney Boll and Mr. Glick cannot serve as the basis to contradict the unambiguous language of the ordinance, however, see Heinz v. Central Laborers' Pension Fund, 303 F.3d 802, 810 (7th Cir. 2002) (noting that undue weight was given to statement of lawmaker where statement contradicted unambiguous language of statute), cert. granted, 124 S. Ct. 803 (Dec. 1, 2003), and cannot create a protected property interest where none exists, see generally Auriemma v. Rice, 957 F.2d 397, 400-01 (7th Cir. 1992) (municipal policy established by acts of policymaker and policymaker must have authority to make policy, laws or rules for government).
In the court's ruling on the motion to dismiss, the court explained that:
If these regulations provided a list of criteria that when met entitled the Plaintiff to separate water hook-ups, this would be the type of breach of contract claim protected by the Due Process Clause. Alternatively, these municipal regulations could provide that the City is allowed to alter existing water hook-ups only after certain conditions are met. This too would make out a claim under the Due Process Clause. If, however, there are no municipal regulations and the City's decision is entirely discretionary, it does not appear that Plaintiff could make out a claim. Finally, if Plaintiff's claim is that the City could never alter the water hook-ups, this too does not appear to present a claim under the Due Process Clause.
(Entry Defs.' Mot. Dismiss at 5-6 (citation omitted).) The Plaintiff has cited no ordinance or other municipal regulation which entitles him to separate water hook-ups or limits the Town's discretion in altering existing water hook-ups. None of the ordinances upon which he relies does these things. Instead, at best the Town's decision is discretionary. Furthermore, under Ordinance 99-05, the Town was required to install only one meter on Stone's mobile home park, and under Ordinance 9-87(c)(4), is required to charge Stone, as the owner of rental premises, for all water furnished to his rental premises. These ordinances dispel any notion that Stone was entitled to multiple water meters.
Ordinance 10-25(g) states in pertinent part that "A municipal sanitary sewer and municipal water system shall be installed in accordance with Town specifications[.]" (Defs.' Mot. Summ. J., Ex. A ¶ 3 Ex. A1(b) at 4.) To the extent the Plaintiff attempts to rely on the referenced "Town specifications" to establish a protected property interest, he has not identified any particular specification limiting the Town's discretion regarding water hookups. Ordinance 9-88 governs water deposit fees and connection fees and says nothing which would raise a reasonable inference of an entitlement to separate water hook-ups or an entitlement not to have existing hook-ups altered. (Defs.' Mot. Summ. J., Ex. A ¶ 3 Ex. A1(a) at 9.)
The Plaintiff identifies what he describes as "mutually explicit understandings," for example, that he sought the Town Board's approval to install water meters on his property, received the State Board of Health approval as required by the Town, and paid $6,975 in hook-up fees, which he claims give rise to his due process rights. (Pl.'s Resp. Defs.' Mot. Summ. J. at 7-9.) As support, he cites only Goldberg v. Kelly, 397 U.S. 254, 262 (1970). The narrow issue presented in Goldberg was "whether the Due Process Clause requires that the [welfare] recipient be afforded an evidentiary hearing before the termination of benefits." Id. at 260. Welfare recipients whose benefits had been terminated could request and have a post-termination hearing. Id. at 259. The Court held that the Due Process Clause required an adequate pre-termination hearing. Id. at 261. The Court did not directly address whether welfare benefits were an entitlement subject to the protections of the Due Process Clause. Goldberg, 397 U.S. at 261-62 ("Appellant does not contend that procedural due process is not applicable to the termination of welfare benefits.").
Moreover, a purported right or entitlement to multiple water meters is far different in kind than a welfare entitlement. As Goldberg recognized, "a welfare recipient is destitute, without funds or assets" and has a "brutal" and "overpowering need . . . not to be wrongfully deprived of assistance." Goldberg, 397 U.S. at 261. It is because "welfare provides the means to obtain essential food, clothing, housing, and medical care" that a pre-termination hearing was necessary. Id. at 264. The Plaintiff's claimed entitlement to multiple meters on his business property does not involve such an "overpowering need" or the essentials by which to live. Thus, Goldberg is inapplicable to this case. Furthermore, the alleged mutual understandings are insufficient as a matter of law to create a protected property interest.
The court finds that the Plaintiff has produced insufficient evidence to raise a reasonable inference that he had a legal entitlement to separate water hook-ups. He therefore cannot show a property interest protected by the Due Process Clause. Consequently, the court need not reach the question of whether he was deprived of a protected property interest or what process was due. See Dixon, 334 F.3d at 694.
As it turns out, the focus of the Plaintiff's claim is the lack of notice given him regarding the action to be taken against him at a town meeting and the installation of the new water meter. Implicit in the court's holding is the notion that the lack of a protected property interest in the multiple meter arrangement negates any constitutional entitlement to notice. Furthermore, the Plaintiff cites no authority to support his contention that the Defendants' notification to him that he would be given notice before a single meter was installed gives rise to a protected property interest.
Accordingly, the court finds that the Defendants are entitled to summary judgment on the procedural due process claim.
B. Equal Protection Claim
The Plaintiff claims the Defendants violated his constitutional right to equal protection of the laws by installing the single water meter on his property. The Plaintiff appears to be proceeding under a "class of one" theory. See Village of Willowbrook v. Olech, 528 U.S. 562 (2000). To prevail on this theory, he must demonstrate that he was "intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment" or "that the government is treating unequally those individuals who are prima facie identical in all relevant respects, and that the cause of the differential treatment is a `totally illegitimate animus toward the plaintiff by the defendant.'" Nevel v. Village of Schaumburg, 297 F.3d 673, 681 (7th Cir. 2002) (quoting Albiero v. City of Kankakee, 246 F.3d 927, 932 (7th Cir. 2001)). Proof of uneven law enforcement by itself will not suffice to establish an equal protection claim. See Albiero, 246 F.3d at 932.
The Defendants contend that the only person similarly situated to the Plaintiff is Mr. Nading who is treated exactly the same as the Plaintiff, which defeats the equal protection claim. The record reveals that Mr. Nading is similarly situated to the Plaintiff — the mobile homes in their trailer parks are not on dedicated streets of the Town, but on private drives on private property, and the tenants of these trailer parks do not have separate addresses along public streets. Furthermore, the two trailer parks both receive a single water bill from the Town for all their tenants. Mr. Thayer also is similarly situated to the Plaintiff with respect to his three trailers that are not on dedicated streets and for which the tenants are on a single meter and which have been billed together by the Town in a single bill to Mr. Thayer.
According to the Plaintiff, Mr. Nading is not similarly situated to him because it does not appear that he sought the Town's approval for installing separate meters on his property, paid any money to have such meters installed, or ever had each lot on his park metered separately. If these things are true and exclude Mr. Nading from being considered similarly situated to the Plaintiff, that leaves Mr. Thayer who is similarly situated with respect to his three trailers which are not on dedicated streets.
The Plaintiff points to others who allegedly are similarly situated to him who were treated differently than he: David Klouse and Dennis Schultz, who purportedly own multi-unit apartment complexes. The Plaintiff claims that each of the units in these "complexes" is billed separately from the others, and the Town has had problems with tenants in these apartments leaving without paying their bills. An initial problem with the comparison to Klouse and Schultz is that it goes way beyond the scope of the pleadings and issues in this case. The Amended Complaint alleges an equal protection violation arising out of "other trailer parks operating in the Town of Hope which have and continue to meter each of the separate lots on the property" (Am. Compl. ¶ 29) and this court's Entry similarly described the claim (March 7, 2002 Entry at 10 ("The complaint contends that Defendants arbitrarily and capriciously metered Plaintiff's trailer park as one water hook-up while at the same time allowing other trailer park owners in the City of Hope to have separate meters for each lot. The Plaintiff further details that this is a violation of the Equal Protection Clause")). A similar problem is presented by the Plaintiff's contention that the similarly situated persons are "those who are owners of rental property, as defined in Ordinance 9-87(c)(4)." (Pl.'s Resp. Br. at 11 n. 3.) In any event, the record reveals that Klouse and Schultz are not similarly situated to the Plaintiff. They do not own mobile home parks and the meters at issue are not on mobile homes.
The evidence reveals that Schultz owns a property which was a nursing home and was converted into six apartment units and Klouse owns two older houses which were converted into four and three rental units each. (Glick Dep. at 35-37.)
The Plaintiff also compares his mobile home park to Liberty Place, but the streets of Liberty Place were put in according to the Town's specifications and its infrastructure will be turned over to the Town (Pl.'s Resp., Ex. C at 53-54), which makes it dissimilar to Stone's trailer park. The Plaintiff surmises that "all other owners of single unit rental properties in the Town are likely not billed individually for the water used by their tenants," (Pl.'s Resp. at 11), but this assertion is unsubstantiated by citation to any record evidence, and thus fails to raise a triable issue. Further, this assertion goes far beyond the scope of the issues in this case.
Moreover, even if the Plaintiff could point to others similarly situated to him who were treated differently, the Defendants have shown a rational basis for installing the single meter on the Plaintiff's property — to bring him in compliance with Town Ordinance 9-87(c)(4) and because of recurrent billing problems with his tenants, and the Plaintiff's efforts to challenge these reasons have been unavailing. Though there have been collection problems with Klouse's and Schultz's tenants, the Plaintiff has offered nothing to reasonably suggest that those problems were any worse than with any other Town resident (Pl.'s Resp., Ex. 3 at 54-55) or were so serious as to attract and warrant discussion at a Town Council meeting, as were the problems with Stone's tenants.
Under the "illegitimate animus" approach to establishing an equal protection claim, "if the government would have taken the action anyway, the animus will not condemn the action. `Ill will must be the sole cause of the complained-of action.'" Nevel, 297 F.3d at 681 (quoting Albiero, 246 F.3d at 932). The Plaintiff points to evidence that Mr. Glick may have had some personal animus toward him. But even if he had, this is insufficient to satisfy the Plaintiff's burden in this case as he offers no evidence to suggest that the Board acquiesced in and approved Glick's animus, see Felton v. Bd. of Comm'rs, 5 F.3d 198, 201-02 (7th Cir. 1993), or that a majority of the Board held any illegitimate animus toward him, Scott-Harris v. City of Fall River, 134 F.3d 427, 436-39 (1st Cir. 1997), rev'd on other grounds sub nom. Bogan v. Scott-Harris, 523 U.S. 44 (1998). Furthermore, the Plaintiff has not offered any evidence to raise a reasonable inference that Glick's alleged animus was the sole cause of the alteration of his meter hook-ups. Instead, it appears that the meters would have been altered anyway.
The court therefore finds that the Defendants are entitled to summary judgment on the equal protection claim.
C. State Law Claims
The court, having decided that summary judgment should be granted the Defendants on all remaining federal claims, declines to exercise jurisdiction over the supplemental state law claims. See 28 U.S.C. § 1367(c)(3). In addition, the state law claims appear to raise novel state law issues, which counsels in favor of refraining from exercising jurisdiction over them. See 28 U.S.C. § 1367(c)(1). Furthermore, remand is the primary relief requested by the Defendants, and the Plaintiff does not oppose remand should the court grant summary judgment on the federal claims.
III. CONCLUSION
The Defendants' motion for summary judgment will be GRANTED. Judgment will be entered on the federal claims and the state law claims will be remanded.
ALL OF WHICH IS ENTERED.