Conrad v. City of Berea
Conrad v. City of Berea
Opinion of the Court
OPINION & ORDER
[Resolving Doc. 16]
On October 14, 2016, Plaintiffs Samuel and Geraldine Conrad filed a complaint
On February 20, 2017, Defendants filed a motion for summary judgment.
I. BACKGROUND
This case primarily concerns whether the City of Berea and City officials used housing code violations as a screen to harass Plaintiffs Samuel and Geraldine Conrad because of their Native American heritage.
In 2005, Plaintiffs bought a home at 224 Eastland Road in Berea, Ohio from Bernard and Joan Goering.
The Goerings, former owners of Plaintiffs’ property, knew about Plaintiffs’ Native American heritage and disapproved of Plaintiffs’ changes to the property.
Six months later, on December 17, 2014, the City of Berea issued Plaintiffs a notice of zoning violation with four alleged violations,
Plaintiffs remedied all issues noted in the 2014 notice of zoning violation.
Around this time, Plaintiffs began making record requests.
Defendants argue that they promptly complied with the public records requests.
In early October 2015, Plaintiffs claim that Defendant Fossett returned to their property and accused them of further zoning code violations.
On October 22, 2015, Plaintiffs appealed the notice of violation to the Planning Commission.
In the meantime, Defendant McDonald contacted Plaintiffs to schedule a meeting with Defendant Mayor Cyril Kleem.
On November 25, 2015, Defendant May- or Kleem issued Plaintiffs a letter notifying them that based on their meeting and Kleem’s inspection of the property, the City “formally withdr[ew] the Notice of Violation.”
Because the City withdrew the notice, Plaintiffs appeal was moot. Thus, Plain-tiffá’ case was removed from the December 3, 2015 Planning Commission agenda.
Plaintiffs believe that violations are still pending against them based on a spreadsheet produced in discovery.
On October 14, 2016, Plaintiffs filed a complaint against Defendants City, of Ber-ea and individuals Mayor Cyril Kleem, Linda Marginian, Alycia Vale Esson, Marvin McDonald, and Cedric Fossett.
On February 20, 2017, Defendants filed a motion for summary judgment.
Plaintiffs argue that all of their claims present a genuine dispute of material fact.
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 56, “[s]ummary judgment is, proper when ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ”
When parties present competing versions of the facts on summary judgment, a district court adopts the non-movant’s ver
III. DISCUSSION
Defendants are entitled to summary judgment on all of Plaintiffs’ claims.
A. Plaintiffs cannot support a selective enforcement claim
Plaintiffs argue that Defendants selectively enforced Berea’s Exterior Maintenance Code against them based on their Cherokee heritage when neighboring properties were in similar condition.
The Equal Protection Clause prohibits the selective enforcement of laws based on arbitrary classifications.
The standard for establishing a selective enforcement claim is a “demanding one.”
Defendants argue that Plaintiffs cannot satisfy any element of a selective enforcement claim. The Court agrees.
Plaintiffs cannot do so. In fact, Plaintiffs defeat their own argument. Plaintiffs note that 54 out of roughly 342 properties in Plaintiffs’ “extended neighborhood” received building code violations over a 12-month period.
Nor can Plaintiffs satisfy the second element. Defendants' claim they were unaware of Plaintiff Conrad’s heritage until Plaintiffs filed their complaint.
Plaintiffs admit that they never explicitly told City employees of Plaintiff Samuel Conrad’s Cherokee heritage until 2015— after both citations were issued
Furthermore, Defendants had a permissible motive in issuing citations—maintaining the aesthetics of the community.
Rather than target Plaintiffs individually, Defendants pursue aesthetic upkeep across the community.
B. Plaintiffs’ federal abuse of process claim fails.
Although Ohio “recognize[s] an abuse-of-process cause of action,”
In their complaint, Plaintiffs cite to an Ohio Supreme Court opinion in support of their abuse of process claim.
Because the Sixth Circuit does not recognize a federal abuse of process claim, the Court GRANTS Defendant’s motion for summary judgment on the abuse of process claim.
C. Plaintiffs cannot support a retaliation claim
Plaintiffs argue that their removal from the December 3, 2015 Planning Commission meeting agenda—and their resulting inability to appeal the 2015 notice of violation—amounted to impermissible retaliation for exercising their First Amendment right to petition the government.
Defendants argue that no retaliation occurred here.-Rather, Plaintiffs won their appeal argument and “accomplished the goal of their appeal—to have the notice of zoning violation dismissed.”
" In the Sixth Circuit, a “retaliation claim essentially entails three elements: (1) the plaintiff engaged in protected conduct; (2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) there is a causal connection between elements one and two-that is, the adversé action was motivated at least in part by the plaintiffs protected conduct.”
Plaintiffs succeed on the first element— the First Amendment protects the right to “petition the Government for redress of grievances.”
Plaintiffs fail,.however, to show an adverse action. Plaintiffs argue that in retaliation for exercising their rights and criticizing the government, Defendants
Plaintiffs argue that “by shifting [their appeal] from the Jurisdiction of the Planning Commission (where Plaintiffs’ criticisms and evidence would become public record) to” a meeting with Defendants Mayor Kleem and McDonald, their rights were violated.
Plaintiffs’ argument misses the mark. Having a meeting with the Mayor as opposed to going before the local Planning Commission would not “deter a person of ordinary firmness” from continuing to engage in protected conduct.
Because Plaintiffs cannot satisfy the second element of a retaliation claim, the Court GRANTS Defendants summary judgment.
D. Plaintiffs were not subject to an unreasonable search
Plaintiffs argue that Defendant Fossett could not have taken various photos of their home without trespassing on, and therefore unconstitutionally searching, their property.
The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and [that] no Warrants shall issue, but upon probable cause.... ”
However, “the Fourth Amendment does not absolutely bar all government encroachment upon the curtilage.”
Here, photographs of Plaintiffs’ property taken by Defendants during their inspections suggest that Defendants may have trespassed on Plaintiffs’ property.
Even assuming Defendants trespassed on the curtilage of Plaintiffs’ property, those actions do not amount to a Fourth Amendment violation. City officials may enter a residence’s curtilage and make naked-eye observations of the houses’ exterior for administrative purposes.
Plaintiff argue that because “high definition computer camera equipment” was used during the inspections,
Under the Fourth Amendment, “[a]ssessing the degree of intrusion requires addressing both the methods used and the purpose for the intrusion.”
“Naked-eye observations” refer to those observations one can make by simply looking at a home. Whether City officials took a photo to capture that vision is largely irrelevant.
Plaintiffs also try to differentiate this case from Widgren by arguing that Defendants were not pursuing a zoning inspection or a tax assessment, two motives mentioned in Widgren.
As noted above, “the purpose for the interference bears upon the intrusiveness of government action. A criminal investigation is generally more intrusive than an administrative or regulatory investigation.”
No Fourth Amendment violations occurred here.
Plaintiffs’ also argue that Berea Building Code 1345.01 is unconstitutional because it allows the Building Inspector to “enter, examine and survey at all reasonable times all dwellings, dwelling units and premises,” thereby allowing warrantless searches.
In Camara, the Supreme Court held that a local ordinance allowing “municipal officials to enter a private dwelling without a search warrant” was unconstitutional under the Fourth Amendment.
Accordingly, the Court GRANTS Defendants’ motion for summary judgment as to Plaintiffs’ Fourth Amendment claim.
E. Plaintiffs cannot support their Monell claims
Plaintiffs also bring Monell claims against Defendant City of Berea for each of the four arguments discussed above. “[U]nder § 1983, local governments are responsible only for their own illegal acts.”
Defendants argue that because Plaintiffs cannot show that Defendants violated their constitutional rights, no Monell claims may proceed.
Plaintiffs argue that the City of Berea has a variety of policies that support Mo-nell claims.
Plaintiffs also argue that because Berea Building Code 1345.01 is unconstitutional, it supports a Monell claim.
The Court therefore GRANTS Defendants’ motion for summary judgment as to all of Plaintiffs’ Monell claims.
F. Individual defendants are entitled to qualified immunity
Finally, Defendants argue that even if some liability attaches, all individual defendants are entitled to qualified immunity.
“The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’”
Because Plaintiffs fail to provide material evidence sufficient to make a constitutional claim, no qualified immunity is necessary. But, had Plaintiffs succeeded, individual defendants would have otherwise been entitled to qualified immunity because Plaintiffs failed to show that Defendants violated any clearly established right.
IV. CONCLUSION
For the reasons above, this Court GRANTS Defendants’ motion for summary judgment.
IT IS SO ORDERED.
. Doc. L
. Id.
. Doc. 16. Plaintiffs oppose. Doc. 23. Defendants reply. Doc. 24.
. Doc. _1 at 5.
. Id. at 6.
. Id. at 7; Doc. 17-1 at 8-9, 51-52. Defendants argue that Plaintiffs Cherokee heritage is unverified. Doc. 1_6 at 3 n.3.
. Doc. _1 at 7; Doc. 16 at 2. Plaintiff Samuel Conrad had an exchange with Mr. Goering in 2005 in which Conrad told Goering of his Cherokee background. Doc. 1 at 7.
. Id. (citing Doc. 1-16, email from Kathy Palmer to Defendants Marginian and McDonald); Doc. 16 at 3. Defendant McDonald now works at the Berea Development Corp. Doc. 1 atl9.
. Doc. 1-17. The notice stated that Plaintiffs needed to (1) scrape and paint all peeling paint on the home and decldng; (2) repair/replace deteriorating front entrance door steps; (3) cut back the bush on the north side of the driveway so it would not block the sidewalk; and (4) repair the south side of the home’s foundation. See id. at 1.
. Doc. 23 at 3-4. Specifically, Plaintiffs argue that the front entrance door steps were and foundation were in good condition. In their opposition to summary judgment, Plaintiffs suggest all violations were a sham. Doc. 23 at 11.
. Doc. 1-17.
. Doc. _1 at 9; Doc. 16 at 8.
. Doc. 1^ at 9-10; Doc. 16 at 3. Record requests continued through 2015, Doc. at 14, and 2016, id. at 20.
. Doc. 23 at 4. For example, Plaintiffs argue that Defendant Marginian created a "separate excel spreadsheet file” from the city’s main document system that includes Plaintiffs and details their violations. Id. at 10. Plaintiffs also allege that their neighbors committed similar violations of the housing code that were never addressed by Defendants. Doc. _1 atl2. Plaintiffs go on to state that Defendants turned over photographs showing that an inspector trespassed on their property—in violation of Berea policy—when taking photos during inspections. Id. at 1, 3 (citing Doc. 23^ 6).
. Doc. 16 at 3.
. Doc. at 11; Doc. 23 at 4. Plaintiffs argue that Defendant Fossett "aggressively confronted” Geraldine Conrad,
. Doc. 1-22. The notice stated that Plaintiffs needed to (1) cut back all vegetation from the public sidewalk by October 21, 2015; (2) remove all trash/debris from the rear of their property; and (3) keep grass and weeds from growing above six inches by October 21, 2015. Id.
. Doc. _1 at 12-13. Specifically, Plaintiffs state that Defendant Marginian told them that various neighbors and passersby complained about the state of Plaintiffs' home and lawn. Id. Plaintiffs claim to have spoken with their neighbors who all denied complaining. Doc. 23 at 10.
. Doc. 23 at 5. Plaintiffs argue that their neighbors were never cited for trash or overgrown vegetation. Id.
. Doc. 17-1 at 15.
. Doc. l_ at 15.
. Id.
. Id. at 16.
. Id.
. Doc. R3 at 4. Plaintiffs allege that the walk-by never occurred. Doc. J_ at 17.
. Doc. 1-31.
. Defendant Esson notified Plaintiffs in an email. Doc. 1-30.
. Doc. J_ at 19. Plaintiffs argue that their property values have fallen as a result of the notices. Doc, 23 at 8,
. Id. at 20; Doc. 23 at 1 (January 2017 record stated Plaintiffs' violation was "open and pending").
. Doc. RS at 5.
. Doc.1.
. Id. at 21, 25, 27, 28, 30.
. Id. at 25, 27, 28, 31.
. Doc.16.
. See Doc. 16.
.Doc. 23 at 9-20.
. Killion v. KeHE Distribs., LLC, 761 F.3d 574, 580 (6th Cir. 2014) (quoting Fed. R. Civ. Pro. 56(a)).
. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
. Id. at 586.
. Killion, 761 F.3d at 580 (internal citation omitted).
. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).
. Koren v. Ohio Bell Tel. Co., 894 F.Supp.2d 1032, 1037 (N.D. Ohio 2012) (citing V & M Star Steel v. Centimark Corp., 678 F.3d 459, 470 (6th Cir. 2012)).
. The Court acknowledges Defendants’ motion to exclude hearsay testimony, particularly conversations between Plaintiffs and City of Berea Council Member Gene Zacharyasz. Doc. 24 at 3. However, because it is unnecessary to consider this evidence to dispose of Plaintiffs’ claims, the Court does not address the evidentiary issue.
. Doc. 1^ at 21. Plaintiffs also argue that they have been singled out as a "class of one” due to their Cherokee heritage. Doc. 23 at 11. The Court finds a "class of one” theory ill-fitting here. "When a plaintiff does not allege that the government’s actions burden a fundamental right or target a suspect class, the plaintiff is said to proceed on a so-called class of one theory and must prove that the government’s actions lacked any rational basis.” Ziss Bros. Const. Co. v. City of Indep., Ohio, 439 Fed.Appx. 467, 475-76 (6th Cir. 2011) (quoting Club Italia Soccer & Sports Org., Inc. v. Charter Twp. of Shelby, Mich., 470 F.3d 286, 296-97 (6th Cir. 2006)). Plaintiffs argue that their Cherokee heritage—which implicates a fundamental right—is the impetus for selective enforcement. See Doc. at 21-24. Therefore, a class of one theory does not apply here. And, even if it did, Plaintiffs would be less likely to succeed on that claim as a rational basis standard is more favorable to Defendants.
. Id.; see also Docs. 1-17, 1-22.
. See Stemler v. City of Florence, 126 F.3d 856, 873-74 (6th Cir. 1997).
. Libertarian Party of Ohio v. Husted, 831 F.3d 382, 382 (6th Cir. 2016).
. Stemler, 126 F.3d at 873.
. Id.
. Doc. 24 at 4.
. Stemler, 126 F.3d at 873 (citing United States v. Armstrong, 517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996)).
. Doc. 23 at 11 (citing Doc. 23-10); see also Doc. 17-1 S. Conrad deposition (admitting that "there are people other than [the Con-rads] who have been cited for having their grass exceed the legal limit and for needing to scrape and paint their dwellings”).
. Doc. 16 at 6 (citing various affidavits from individual defendants).
. Doc. 17-1 at 50-51. Specifically. Plaintiff Conrad said he told Defendant Marginian about his heritage at a meeting on October 19, 2015. The second citation was issued October 12.
. Doc. 23 at 10. Plaintiff argues that various context clues would have revealed that he is a Cherokee Indian. For example, Conrad states that they have a medicine wheel in their backyard, he wears a hat with the symbol on it often, and he told the Goerings of his background in 2005. Doc. 23 at 10. Defendant admits, however, that he has no way to know whether the Goerings told any city officials that he is a Cherokee Indian. Doc. 17-1 at 49.
. Franchise Developers, Inc. v. City of Cincinnati, 30 Ohio St.3d 28, 505 N.E.2d 966, 967 (1987).
. Doc. 23 at 11.
. Id. at 1. For example, Plaintiffs painted and trimmed bushes in response to the 2014 citation which stated Plaintiffs needed to "scrape and paint all peeling paint” and "cut back the bush on the north side of the driveway.” Doc. 1-17 at 1. Regardless of whether Plaintiffs meant simply to "accommodate” the city rather than comply, Doc. 23 at 1, they complied nonetheless. Plaintiffs never heard from the City regarding the 2014 citation after trimming the bush and painting. Doc. 17-1 at 13-14.
. See supra at 903 n.57.
. Because the Court finds against Plaintiffs on the first and second elements, the third element is not addressed.
. Id. (citing Yaklevich v. Kemp, Schaeffer & Rowe Co., 68 Ohio St.3d 294, 626 N.E.2d 115 (1994)).
. Moore v. WesBanco Bank, Inc., 612 Fed.Appx. 816, 823 (6th Cir. 2015) (citing Rapp v. Dutcher, 557 Fed.Appx. 444,448 (6th Cir. 2014); Voyticky v. Vill. of Timberlake, Ohio, 412 F.3d 669, 676 (6th Cir. 2005)).
. Doc. 1. at 25-26; Doc. 23 at 12.
. Doc. 23 at 20.
. Doc. 1^ at 27-28. .
. Doc. 23 at 13-16..Plaintiffs cite other retaliatory conduct, but lack evidentiary support tying the conduct to Defendants. For example, Plaintiffs observed a “Berea Police car slowly driving" by their property, "a woman trespassing" on their property, and "footage showing]1 a vehicle with a white male driving to the back of the[ir] driveway,"' Id, at 14. Regardless of whether these incidents are attributable to Defendants, Plaintiffs' central complaint appears to be inability to present their full appeal in a public forum.
. Doc. 16 at 11.
. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999).
. U.S. Const. amend. I; see also Holzemer v. City of Memphis, 621 F.3d 512, 521 (6th Cir. 2010).
. Plaintiffs argue that the violations are still pending, Doc. 23 at 1 (noting a January 2017 record stating that Plaintiffs’ violation was "open and pending”), but city officials assure Plaintiffs that all violations were withdrawn. Doc. 16-3. The Court takes the city at its word—if citations were still pending, the Court assumes the city would still be pursuing their resolution. Plaintiffs have not received another citation since October 2015.
. Doc. 23 at 14.
. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999).
. See Doc. 1 at 28-31; Doc. 23 at 16.
. Doc. 16 at 19.
. Widgren v. Maple Grove Tp., 429 F.3d 575, 578 (6th Cir. 2005) (citing U.S. Const. amend. IV) (emphasis changed).
. Id. (citing Kyllo v. United States, 533 U.S. 27, 32, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001)).
. Id. (citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986)) (internal quotations omitted).
. Widgren, 429 F.3d at 581.
. Widgren, 429 F.3d at 582 (citing United States v. Dunn, 480 U.S. 294, 300, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987)) (internal quotations omitted).
. Id. at 582.
. Id. at 585-86.
. Doc. 17-2 at 75-82
.See id.
. Widgren, 429 F.3d at 585-86.
. Id.
. Doc. 23 at 17.
. Widgren, 429 F.3d at 583.
. Id.
. Id.
. Id.
. Doc. 1 at 30; Doc. 23 at 16.
. 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).
. Camara, 387 U.S. at 527, 87 S.Ct. 1727 (emphasis added).
. Widgren, 429 F.3d at 584 n.3.
. D'Ambrosio v. Marino, 747 F.3d 378, 386 (6th Cir. 2014) (citing Connick v. Thompson, 563 U.S. 51, 60, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011) (internal citation and quotation marks omitted)).
. Id. (citing Monell v. Dep’t of Social Servs., 436 U.S. 658, 692, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)).
. Doc. 16 at 14-15.
. Doc. 23 at 18. These policies include "routine trespass; unreasonable search; interference with the reasonable expectation of privacy; interference with the assertion of due process, the petition of government, free speech, and the practice of religion rights [ ]; [and] selective action against a protected class.”
. See supra, Sections III A-D.
. Doc. 23 at 18.
. See supra, Section III-D.
. Plaintiffs state that a stay is required under Berea Municipal Code 103.03. Doc. 23 at 15.
. Despite these official policies, a Monell claim could survive if Plaintiffs could show "a custom of tolerance [of] or acquiescence [to] federal rights violations” in violation of Berea’s policies. D’Ambrosio, 747 F.3d at 386 (citing Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013)). Plaintiffs have not provided evidence, however, of federal rights violations. Thus, their Monell claim fails.
. Doc. 16 at 16.
. Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).
Reference
- Full Case Name
- Samuel CONRAD v. CITY OF BEREA
- Cited By
- 7 cases
- Status
- Published