Banks v. City of Whitehall ( 2003 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Banks, et al. v. City of Whitehall, et al. No. 01-4155
ELECTRONIC CITATION: 2003 FED App. 0340P (6th Cir.)File Name: 03a0340p.06 Before: BATCHELDER and ROGERS, Circuit Judges;
RUSSELL, District Judge.*
UNITED STATES COURT OF APPEALS _________________
FOR THE SIXTH CIRCUIT COUNSEL
_________________
ARGUED: Ronald B. Noga, WELTMAN, WEINBERG &
STEWART BANKS ; BAMBI X REIS, Columbus, Ohio, for Appellants. Steven Lee Smith,
- SMITH & COLNER, Columbus, Ohio, for Appellees.
MOTEL, INC.; RICHARD H. ON BRIEF: Ronald B. Noga, WELTMAN, WEINBERG &
TURNER; P.T. PROPERTIES, -
- No. 01-4155 REIS, Columbus, Ohio, for Appellants. Steven Lee Smith,
INC., - SMITH & COLNER, Columbus, Ohio, for Appellees.
Plaintiffs-Appellants, >
, _________________
-
v. - OPINION
- _________________
CITY OF WHITEHALL; DENN IS -
J. FENNESSEY; JOHN WOLF ; - ALICE M. BATCHELDER, Circuit Judge. The plaintiffs
- appeal the district court’s order granting summary judgment
CHARLES D. UNDERWOOD;
- to the defendants in this action brought pursuant to 42 U.S.C.
CATHY CRANDALL ; TIM - § 1983, claiming that the defendants, in the course of strictly
TILTON , - enforcing local building and fire codes in the city, took the
Defendants-Appellees. - plaintiffs’ property for public use without just compensation
- and enforced the law selectively in violation of the Fifth and
N Fourteenth Amendments. The district court granted the
Appeal from the United States District Court defendants’ motion for summary judgment on several
for the Southern District of Ohio at Columbus. alternative grounds. First, that the plaintiffs’ claims are
No. 99-01082—James L. Graham, District Judge. barred by a two-year statute of limitations; second, that their
claims are barred by both claim preclusion and issue
Argued: August 7, 2003 preclusion; third, that their inverse condemnation and takings
claims are not ripe for review pursuant to principles set forth
Decided and Filed: September 24, 2003 in Williamson County Regional Planning Commission v.
Hamilton Bank of Johnson City, 473 U.S. 172 (1985); fourth,
*
The Honorable Thomas B. Russell, United States District Judge for
the Western District of Kentucky, sitting by designation.
1
No. 01-4155 Banks, et al. v. City of Whitehall, et al. 3 4 Banks, et al. v. City of Whitehall, et al. No. 01-4155
that the individual defendants are entitled to immunity; and or entered into a binding contract with a real estate broker in
finally, that all of their claims are without merit. a good faith effort to sell the property. The stipulated
injunction required that on July 9, 1996, if the structures
The plaintiffs do not challenge the district court’s holding comprising the motel were still standing, they would be
that their takings and inverse condemnation claims are not closed pending demolition or sale. Eventually, after two
ripe, and we need not address those claims on appeal. contempt motions and several hearings, the court found that
Ewolski v. City of Brunswick, 287 F.3d 492, 516-17 (6th Cir. Banks and the motel were in contempt and ordered the motel
2002). Because we conclude that the remaining claims are all razed. The appellate court held that Banks and the motel
barred by the applicable statute of limitations, we affirm the were bound by their stipulations, and the motel was then
judgment of the district court without reaching the alternative demolished.
bases of the district court’s ruling.
After finding the Robinwood Trailer Park and one of the
Factual Background P.T. Properties buildings in violation of various code
provisions, the City filed an action against Turner and P.T.
The plaintiffs in this action are the Bambi Motel, Inc. and Properties on November 22, 1996, in the Environmental
its owner, Stewart Banks, and P.T. Properties, Inc. and Division of the Franklin County Municipal Court, seeking to
Richard Turner, the owner and operator, respectively, of close the trailer park and to demolish the building. Turner
Robinwood Trailer Park and two other commercial buildings. made the repairs necessary to bring both properties into
All of these properties are located in the City of Whitehall, compliance, and, on August 29, 1997, the action was
Ohio. The allegations in this § 1983 action have their genesis dismissed.
in the city’s campaign of strict enforcement of its fire and
building codes in order to force certain businesses that were The plaintiffs filed this action in the district court on
in violation of those codes to shut down, either until the October 18, 1999, against the City of Whitehall and various
violations could be remedied, or permanently. The Bambi of its officials, in their official and individual capacities,
Motel, Robinwood Trailer Park and the P.T. Properties complaining that their actions had been undertaken in an
commercial buildings were targets of this campaign. effort to drive the plaintiffs out of business; that these actions
constituted inverse condemnation and takings without just
The City filed an action in the Environmental Division of compensation; that the defendants had selectively enforced
the Municipal Court in Franklin County, Ohio, on November the building and fire codes against these plaintiffs and thereby
22, 1995, against Banks and the Bambi Motel, alleging worked a taking without just compensation and a violation of
numerous building code, fire code and licensing law the Equal Protection Clause of the Fourteenth Amendment;
violations, as well as seeking an injunction to abate a public and that the plaintiffs were entitled to injunctive relief. The
nuisance allegedly resulting from drug trafficking, district court granted summary judgment to the defendants,
prostitution and other criminal activity occurring at the motel. and this timely appeal followed.
On April 10, 1996, Banks and the Bambi Motel stipulated to
a permanent injunction, based on stipulated findings of Analysis
violations of the law, requiring that by July 9, 1996, Banks
would have either (1) razed the structures comprising the We review de novo the district court’s holding that the
motel or contracted to have it razed, or (2) sold the property plaintiffs’ claims were filed outside of the applicable statute
No. 01-4155 Banks, et al. v. City of Whitehall, et al. 5 6 Banks, et al. v. City of Whitehall, et al. No. 01-4155
of limitations. Tolbert v. Ohio Dep’t of Transp., 172 F.3d Not only did we determine en banc in Browning that a two-
934, 938 (6th Cir. 1999). year statute of limitations applies to section 1983 actions, but
in two later cases, LRL Properties v. Portage Metro Housing
In this appeal, the plaintiffs do not contend that they filed Authority, 55 F.3d 1097, 1105 (6th Cir. 1995), and Kuhnle
this section 1983 action within two years of the defendants’ Brothers, Inc. v. County of Geauga, 103 F.3d 516, 519-20
allegedly unconstitutional conduct. The plaintiffs’ sole (6th Cir. 1997), we squarely rejected attempts to get around
argument pertaining to the statute of limitations is that Browning. As we noted in LRL Properties, “[i]t is the
“Browning v. Pendleton, . . . which establishes a two-year (2) well-settled law of this Circuit that ‘[a] panel of this Court
statute of limitations for 42 USC § 1983 claims is contrary to cannot overrule the decision of another panel. The prior
Ohio law and should be overruled with respect to § 1983 decision remains controlling authority unless an inconsistent
claims arising in Ohio.” The plaintiffs have no legal basis decision of the United States Supreme Court requires
whatsoever for advancing this argument in this court. modification of the decision or this Court sitting en banc
overrules the prior decision.’” 55 F.3d at 1105 n.2 (quoting
In 1985, the Supreme Court held that section 1983 claims Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689
were best characterized as tort actions for the recovery of (6th Cir. 1985)). There is no such inconsistent decision of
damages for personal injuries and federal courts must borrow either the Supreme Court or this court.
the statute of limitations governing personal injury actions in
the state in which the section 1983 action was brought. The plaintiffs’ brief includes in its statement of
Wilson v. Garcia, 471 U.S. 261, 275-76 (1985). Four years facts—although not as a distinct legal argument—the claim
later, in Owens v. Okure, 488 U.S. 235 (1989), the Supreme that a recent deposition of one of the defendants in this case,
Court refined its Wilson holding, and declared that in a state taken in an unrelated lawsuit, brought to light evidence that
with more than one statute of limitations for personal injury the City’s actions were designed to take the plaintiffs’
actions, the state’s residual or general statute of limitations property “without Due Process or Just Compensation to
governing personal injury actions is to be applied to all facilitate the redevelopment of East Main Street for the
section 1983 actions brought in that state. Id. at 249-50. The political and personal advancement of the individual
ink was hardly dry on Okure when this circuit, sitting en Defendants,” and upon discovery of this evidence, the
banc, decided Browning v. Pendleton, 869 F.2d 989 (6th Cir. plaintiffs were left with no vehicle to redress these
1989). Noting that in Okure, the Supreme Court had constitutional violations except this section 1983 action.
“unanimously held that when a state, like Ohio, has multiple Such a discovery, if true, might enable the plaintiffs to avoid
statutes of limitation for personal injury actions, the the application of the statute of limitations to bar their claims.
appropriate state statute of limitations to borrow for claims But we find no evidence in this record that the plaintiffs’
brought under 42 U.S.C. § 1983 is the residual or general claim is true. We have thoroughly reviewed the record,
personal injury statute of limitations,” id. at 991, we held that including the portions of the deposition that supposedly
“the appropriate statute of limitations for 42 U.S.C. § 1983 produced “new” evidence, as well as newspaper accounts
civil rights actions arising in Ohio is contained in Ohio Rev. from the mid-1990s that contained as much inculpatory
Code Ann. § 2305.10, which requires that actions for bodily evidence as the deposition, and we conclude that the
injury be filed within two years after their accrual.” Id. at deposition did not alert the plaintiffs to any evidence that they
992. could not have easily discovered prior to the expiration of the
statute of limitations.
No. 01-4155 Banks, et al. v. City of Whitehall, et al. 7 8 Banks, et al. v. City of Whitehall, et al. No. 01-4155
We think it is prudent, however, in light of this allegation, regulations with impunity, and the conduct of Whitehall
to note briefly that even if the record contained some officials in enforcing those codes and regulations was neither
indication that the plaintiffs could not have discovered this “arbitrary” nor “conscience-shocking” in the constitutional
evidence sooner, there is no basis whatever for their claim sense. See Bowers v. City of Flint, 325 F.3d 758 (6th Cir.
that their substantive due process rights were violated when 2003) (majority and concurring opinions). In fact, the
the defendants rigorously enforced Whitehall’s building and government regularly uses the civil law to address problems
fire codes in a specific area of town in order to shut down that it could, perhaps more directly, address with the criminal
businesses around which drug dealers and prostitutes often law. See, e.g., 21 U.S.C. § 881 (authorizing civil forfeiture
congregated. The plaintiffs argue that there is a so-called proceedings against property acquired in or associated with
“middle ground” protected by substantive due process the illegal drug trade). Finally, the plaintiffs cannot prevail
wherein the government cannot act arbitrarily or capriciously on a claim of selective enforcement because they have not
with respect to property even if its actions do not rise to the shown that they “belong[] to an identifiable group, such as . . .
level of a taking. They pursue this argument notwithstanding a particular race or religion, or a group exercising
their admission that Stewart Banks and the Bambi Motel constitutional rights,” and who were targeted for law
voluntarily entered into an order before the state enforcement action as a result of that group status.
environmental court admitting to the existence of various Gardenhire v. Schubert, 205 F.3d 303, 318-19 (6th Cir.
code violations and agreeing to take specified remedial 2000).
measures, and Richard Turner and P.T. Properties, Inc. made
necessary repairs to their facilities, which enabled Whitehall None of the defendants’ actions which the plaintiffs
to lift its condemnation order and dismiss any pending legal complain of occurred within two years of the filing of this
actions against them. lawsuit, nor were the plaintiffs prevented from timely
discovering any actions of the defendants that could
As an initial matter, we note that the Fifth Amendment, and conceivably be redressed by a lawsuit brought under section
not substantive due process, is the basis upon which a 1983. Because this action is wholly barred by the applicable
plaintiff may challenge the government’s actions with respect statute of limitations, we need not reach any of the alternative
to his property: “Graham v. Connor, 490 U.S. 386, 395 bases upon which the district court granted summary
(1989), precludes the use of substantive due process analysis judgment to the defendants.
when a more specific constitutional provision governs.” City
of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 123 S. Ct. The judgment of the district court is AFFIRMED.
1389, 1397 (2003) (Scalia, J., concurring) (internal quotations
omitted). Moreover, to the extent that the plaintiffs attempt to
avoid the dictates of Graham by claiming that their challenge
is not to the “quasi-taking” of their property but is instead to
the conduct of Whitehall officials—namely, the rigorous and
allegedly selective enforcement of city regulations with the
purpose of shutting down businesses suspected of
contributing to a culture of crime—that challenge is wholly
without foundation. There exists no “fundamental” right in
our legal system to violate a municipality’s codes and