Barbara Tuffendsam v. Dearborn County Board of Health

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1486
B ARBARA T UFFENDSAM ,
Plaintiff-Appellant,
v.
D EARBORN C OUNTY B OARD OF H EALTH , et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court for the
Southern District of Indiana, New Albany Division.
No. NA 02-92-C H/H—David F. Hamilton, Judge.
____________
A RGUED S EPTEMBER 20, 2004—D ECIDED O CTOBER 15, 2004
____________
Before POSNER , K ANNE , and E VANS , Circuit Judges.
P OSNER , Circuit Judge. The plaintiff in this civil rights suit
against a county health board and its members bought a
house that had a septic tank rather than being connected to
the municipal sewer system. Concerned that the septic tank
might no longer be working properly, she negotiated a re-
duction in the price of the house that would help her defray
the expense of her share of the cost of building a line that
would connect her and her neighbors’ houses to the munici-
pal sewer system.

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2 No. 04-1486
Unbeknownst to her, more than two years earlier the
county health board had discovered that the septic tank was
indeed not working properly—that sewage was leaking
from it—and had ordered the then-owner of the house to
abate the sewage discharge within 90 days. He failed to do
so and the board issued another, similar order, giving him
another 30 days to comply. He failed to comply and the
board failed to follow up. But after the plaintiff bought the
house, the board finally woke up, and it began legal pro-
ceedings against her to get the problem corrected. Her
neighbors refused to contribute to the cost of a sewer line
and the plaintiff was unwilling to pay the entire cost
($40,000) herself. To place pressure on the neighbors, she
complained to the board that their septic tanks were doubt-
less also leaking. The board investigated, agreed, and
brought proceedings against them as well. Before waiting to
see whether these proceedings would induce them to join
with her in paying for a sewer line, she brought this suit
against the board. The suit charges that by failing to get the
previous owner to correct the problem and by failing to
pursue the neighbors with the same vigor that it was pur-
suing her, the board deprived her of property without due
process of law and also denied her the equal protection of
the laws, all in violation of the Fourteenth Amendment. She
seeks damages plus an order that the board buy her house
from her and, presumably in the alternative, enforce the
sanitation laws against the neighbors so that they’ll be
induced to contribute to the cost of building a sewer line.
There are many objections to her suit, but we can limit our
discussion to two.
The Constitution is, with immaterial exceptions, a charter
of negative rather than positive liberties. DeShaney v.
Winnebago County Dept. of Social Services, 489 U.S. 189 (1989).
It limits the powers of government but does not give people
legally enforceable rights to demand public services and to

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No. 04-1486 3
obtain damages or other legal relief if the government fails
to provide them. The value of the plaintiff’s house has been
impaired for want of an adequate system for disposing of
wastes. Had the county health board been on its toes the
problem might have been corrected without cost, or at less
cost, to the plaintiff, so she has been injured by laxity in law
enforcement. But such laxity does not give rise to a constitu-
tional claim.
DeShaney might seem distinguishable on the ground that
the board caused in a direct sense, rather than merely failed
to prevent (and thus “caused” in only an attenuated sense),
the loss of value by bringing legal proceedings against
Tuffendsam to abate the discharge—that were it not for laws
against the open discharge of sewage, she could live in
peace with her defective sewer system, spewing sewage into
the surrounding land. And it is true that a government
agency that places a person in peril cannot avoid responsi-
bility if it fails to protect the person against the peril. Estate
of Allen v. City of Rockford, 349 F.3d 1015, 1019 (7th Cir. 2003);
Reed v. Gardner, 986 F.2d 1122, 1125 (7th Cir. 1993); Morse v.
Lower Merion School District, 132 F.3d 902, 907 (3d Cir. 1997);
Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir. 1995). But the fact
that public health laws forbid discharging sewage into land
and groundwater does not make the public health authori-
ties responsible for the consequences of a homeowner’s
having a defective septic tank. The health board was not the
author of the sewage discharge.
But the root objection to cases of this kind, as noted by the
district judge, is simply the infeasibility of judicial review of
law enforcement. To evaluate the gravity, the unreasonable-
ness, the gratuitousness of the county health board’s failure
to cause a previous owner of the plaintiff’s house to abate
the discharge of sewage, or of the board’s failure to induce
through prompt and vigorous legal action the neighbors to

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4 No. 04-1486
contribute to the expense of building a sewer line, would
place the federal courts in control of sanitation in Dearborn
County, Indiana, responsible for telling the County’s public
health officers how to allocate their limited time and money
among the various public health problems clamoring for
their attention. Judge Hamilton would be the Dearborn
County health board.
This point also dooms the plaintiff’s equal-protection
claim. She contends and for purposes of this appeal we
accept that the county health board is enforcing the public
health laws more zealously against her than against either
the previous owners of her house or their (now her) neigh-
bors. There is no suggestion that the board is acting so for
some invidious reason, such as the plaintiff’s race, and she
is thus perforce appealing to the “class of one” cases, an
area of increasing activity and concern in the wake of the
Supreme Court’s decision in Village of Willowbrook v. Olech,
528 U.S. 562 (2000) (per curiam). The Court held that an
individual who has not been singled out because of race or
some other trigger of invidious discrimination can still obtain
a remedy under the equal protection clause for “irrational
and wholly arbitrary” adverse treatment by government. Id.
at 565. Breathtaking vistas of liability are opened up by that
formulation, leading us to hold in Hilton v. City of Wheeling,
209 F.3d 1005, 1008 (7th Cir. 2000), “that to make out a
prima facie case [of a ‘class of one’ denial of equal protec-
tion] the plaintiff must present evidence that the defendant
deliberately sought to deprive him of the equal protection
of the laws for reasons of a personal nature unrelated to the
duties of the defendant’s position.” See also Purze v. Village
of Winthrop Harbor, 286 F.3d 452, 455 (7th Cir. 2002); Cruz v.
Town of Cicero, 275 F.3d 579, 587 (7th Cir. 2001); Bartell v.
Aurora Public Schools, 263 F.3d 1143, 1149 (10th Cir. 2001);
Bell v. Duperrault, 367 F.3d 703, 709-13 (7th Cir. 2004)
(concurring opinion). There is no evidence of that here.

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No. 04-1486 5
But as we noted recently in Indiana Land Co. v. City of
Greenwood, 378 F.3d 705, 713 (7th Cir. 2004), in two cases
subsequent to Hilton—Nevel v. Village of Schaumburg, 297 F.3d
673, 681 (7th Cir. 2002), and Albiero v. City of Kankakee, 246
F.3d 927, 932 (7th Cir. 2001)—panels of this court stated,
without citing Hilton, that as an alternative to the appli-
cation of the standard laid down in that case, a class-of-one
case could be proved simply by showing that the defendant
had intentionally treated the plaintiff differently from others
similarly situated and had had no rational basis for doing so.
These divergent strands in the case law can, however, be
woven together by noting that intentionality is an ambiguous
concept, shading at one end into mere knowledge of likely
consequences and at the other into a desire for those conse-
quences. The county health board “intentionally” treated the
plaintiff worse than it treated her predecessors and neigh-
bors in the sense that it knew—it had to know—that its
pattern of enforcement was uneven. But it did not “inten-
tionally” treat the plaintiff worse in the sense of wanting her
to be made worse off than those others. And it is the latter
sense in which a “class of one” case requires a showing that
government “intentionally” treated the plaintiff worse than
others. In other words, we don’t think the Supreme Court in
Olech intended to overrule Personnel Administrator of Massa-
chusetts v. Feeney, 442 U.S. 256 (1979), which holds that an
official “intends” a consequence when he acts because
rather than in spite of it.
Whatever the outer bounds of the “class of one” concept,
moreover, cases such as United States v. Armstrong, 517 U.S.
456, 464-65 (1996), which hold that selective enforcement of
the laws is not actionable as a violation of equal protection
unless the selection is based on an invidious criterion such
as race, and cases such as Heckler v. Chaney, 470 U.S. 821,
831-32 (1985), which hold that the decision not to prosecute
is generally unreviewable, preclude, we believe, a “class of

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6 No. 04-1486
one” claim based solely on a failure to prosecute at the
plaintiff’s behest. See also Linda R.S. v. Richard D., 410 U.S.
614, 617-19 (1973). The plaintiff in this case is a victim of
uneven enforcement, nothing more, and as we said in
Hameetman v. City of Chicago, 776 F.2d 636, 641 (7th Cir.
1985), “The Constitution does not require states to enforce
their laws (or cities their ordinances) with Prussian thor-
oughness as the price of being allowed to enforce them at
all. Otherwise few speeders would have to pay traffic
tickets. Selective, incomplete enforcement of the law is the
norm in this country.”
A FFIRMED .
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-15-04

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