Kennard v. City of Ashland, Kentucky et al

Filing 19

MEMORANDUM OPINION & ORDER, 1) denying 14 MOTION for Summary Judgment by John David Kennard 2)granting 15 MOTION for Summary Judgment by City of Ashland, Kentucky 3) granting 18 MOTION for Summary Judgment by Boyd Co., Kentucky 4) pla claims against it are DISMISSED WITH PREJUDICE. Signed by Judge Henry R. Wilhoit, Jr on 2/22/13.(SMT)cc: COR, Kennard via USMail

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

NORTHERN DIVISION

at ASHLAND

CIVIL ACTION NO. 12-28-HRW
JOHN DAVID KENNARD,
PLAINTIFF,
MEMORANDUM OPINION AND ORDER

v.

CITY OF ASHLAND, KENTUCKY
and BOYD COUNTY, KENTUCKY,

DEFENDANTS.

This matter is before the Court upon the parties' Motions for Summary Judgment [Docket
Nos. 14, 15 and 18]. For the reasons set forth herein, the Court finds that the Defendants are
entitled to judgment as a matter of law.
I.

FACTUAL AND PROCEDURAL BACKGROUND

This case arises from Plaintiff's eviction from his home located at 5238 Skyline Drive,
Ashland, Boyd County, Kentucky 41101, as a result of violations so severe and extensive that the
City of Ashland, Kentucky (hereafter "the City") condemned the structure on said property as it
was determined to be unfit and unsafe for human occupancy or use.
By letter dated June 21, 2011, Scott Niece, the City's Property Maintenance Manager,
notified the Plaintiff that an inspection of his property made that morning resulted in a finding
that his property was in violation of Sections 108.1.3,502.1,605.1, and 602.3 of the City's
Property Maintenance Ordinance No. 106,2009 series, because the dwelling lacked connected
and working utilities. [Docket No. 15-1].

The letter further advised Plaintiff that he was

required to reconnect all his utilities and the same was to be visibly verified by the inspector no
later than 1:00 P.M. on June 22, 2011, or the property would be condemned as uninhabitable, all

persons vacated therefrom, and the structure secured by the City until all applicable code
violations were corrected.
Thereafter, the Plaintiff appeared in the City's office of the Property Maintenance
Manager requesting more time to comply with the notice of violation. However, he was denied
the extension. The Plaintiff then contacted Mike Miller, the City's Director of Planning and
Community Development, to inquire as to the legality of the City's condemnation of his property
as a result of his residence not having electricity and running water. Mr. Miller told the Plaintiff
he would further research the Plaintiff's request and contact him with a ruling. By letter dated
July 8, 2011, Mr. Miller informed the Plaintiff that he had in fact talked with the City's legal
counsel regarding the Plaintiff's inquiry and relayed the following information to the Plaintiff:
The lack of utilities is considered a life safety violation and
[the City] cannot allow it to continue. You have until July
22 to restore water and electric service to the home or we
will have to condemn the property until such service is
restored. If you disagree with the ruling you may seek relief
in the Boyd County court system.

[Docket No. 15-4]. This letter also advised Plaintiff that his time to comply with the
notice of violation had been extended to July 22, 2011.
On July 25, 2011, Scott Niece sent Plaintiff a "Friendly Reminder" that he was required
to restore all utility services by 4:00 P.M. that day or the house would be condemned as
stated in the previous notices. [Docket No. 15-5]. Upon inspection that same day at 4: 10
P.M., which was three days past the already-extended compliance date, the City
determined the Plaintiff had failed to comply with the order to restore all the utilities at
the house and condemned the same.The next day, an "Order to Repair or Demolish" for
lack of utilities was sent to Plaintiff by Scott Niece. [Docket No. 15-6]. This Order
reiterated that the Plaintiff's home was in violation of Sections 108.1.3,502.1,605.1, and
602.3 of the City's Property Maintenance Ordinance No. 106, as stated in the City's prior

notices.
Several months after the Plaintiff's house was condemned, one of the City's Property
Inspectors, Corie Kazee, found that the Plaintiff and his eight house cats were still living in
the dwelling. [Docket No. 15-7]. Mr. Kazee explained to the Plaintiff that he was unable to stay
in the dwelling and that he needed to leave and take his house cats with him. Mr. Kazee also
explained to the Plaintiff that it was against the City's policies and regulations to allow animals
to stay in an uninhabitable dwelling. Id. After the Plaintiff declined to remove his house cats
from the-dwelling, Mr. Kazee contacted the City's Animal Control Officers, Greg Woods and
Dave Branham, to remove the house cats from the condemned property. Id. The house cats were
immediately taken to the Boyd County Animal Shelter. Id.
After waiting for ten days, three days in excess of the seven day period required by
Ordinance No. 151, the cats were euthanized. [Docket No. 18-2]. During this period, the
supervisor of the shelter, Paul Helton, contacted Plaintiff on four separate occasions and told him
he could pick up his cats but would be required to pay a reclaiming fee. [Affidavit of Paul
Helton, Docket No. 18-3]. Plaintiff did not appear to reclaim his cats.
Plaintiff filed this civil action against the City and the County. alleging that his right to be
secure in his home and property and his right to substantive due process guaranteed by the Fourth
and Fifth Amendments had been violated and that he had been deprived of his longtime
companionship with his eight house cats. Although the Complaint does not specify which
Defendant committed the violations, the Court will assume that the allegations are against both
the City and the County.
Plaintiff and both Defendants seek summary judgment.

II.

STANDARD OF REVIEW

Summary judgment should be granted "if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56(a). In 1986, the United States Supreme Court set forth the standard for summary
judgment in a trilogy of cases: Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505,
91 L.Ed.2d 202 (1986), Celotex v. Cartett, 477 U.S. 317. 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986), and Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct.
1348,89 L.Ed.2d 538 (1986). Following this precedent and Fed.R.Civ.P. 56©, the moving party
is entitled to judgment as a matter oflaw when "[t]he pleadings, depositions, answers to
interrogatories and admissions on file, together with affidavits, if any, show that there is no
genuine issue of material fact." Summary judgment is mandated against a party who has failed
to establish an essential element of his or her case after adequate time for discovery. In such a
situation, there is no genuine issue of material fact as the failure to prove an essential fact renders
all other facts irrelevant. Celotex v. Cartett, 477 U.S. at 322-323.
The United States Court of Appeals for the Sixth Circuit has interpreted the United States
Supreme Court's trilogy as requiring the nonmoving party to produce enough evidence, after
having had a reasonable opportunity to conduct discovery, so as to withstand a directed verdict
motion. Street v.

J.c.

Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989).

The standard of review for cross-motions of summary judgment does not differ from the
standard applied when a motion is filed by only one party to the litigation. Taft Broad Co. v.
Us., 929 F.2d 240, 248 (6th Cir. 1991). The court must evaluate each party's motion on its own

merits, taking care in each instance to draw all reasonable inferences against the party whose
motion is under consideration. Id.

III.

ANALYSIS

The Court will first address Plaintiff's dispositive motion, which is a recitation if
unsubstantiated statements with no accompanying affidavits or other proof. As such, it is not a
proper dispositive motion and will be denied.
As for Defendants' motions, if for no other reason, it would be entirely proper to grant
them based on Plaintiff's failure to respond thereto as required by Rule 7.1(c)(1) of the Joint
Local Rules of the Eastern and Western Districts of Kentucky! . The Court has reviewed the
Defendants' motions and the court record, nevertheless. Based on the current state of the record,
it appears that the Defendants' motions should be sustained on its merits as well.
Pursuant to Section 1983 of Chapter 42 of the United States Code, Plaintiff must
demonstrate the conduct complained of in his Complaint was committed by a person or entity
acting under color of state law and such conduct deprived plaintiff of rights, privileges, or
immunities secured by the laws of the United States. The Court is mindful, however, that the
scope of federal court review with regard to substantive due process attack on state
administrative action is limited. See generally, Stevens v. Hunt, 646 F.2d 1168 (6th
Cir. 1981). Plaintiff bears the burden of establishing that the state agency is guilty of "'arbitrary
and capricious action. In other words, ''that there is no rational basis for" the administrative
decision." Id At 1170. The Court is also mindful that a city has broad discretion in the
enactment of laws to preserve and promote the health, morals, security and general welfare
of its citizens." City ofLouisville, et aI., v. Thompson, 339 S.W.2d 869,872 (Ky. App. Ct.,
1990).

! Local Rule 7(c)(1) specifically states that "[f1ailure to file an opposing memorandum
may be grounds for granting [a] motion."

In this case, the City adopted the International Property Maintenance Code (lPMC),
which is a model code that regulates the minimum maintenance requirements for existing
buildings. This Ordinance establishes minimum maintenance standards for basic equipment,
light, ventilation, heating, sanitation, and fire safety and provides for the regulation and safe use
of existing structures in the interest of the social and economic welfare of the community.
The City's Property Maintenance Inspector determined, on several occasions, that the
Plaintiff's dwelling did not meet even these minimum maintenance standards. The Plaintiff's
home lacked running water, a sewer connection, electricity, and heating. The home was covered
in filth and contamination and in an utter state of disrepair, as evidenced by those pictures taken
by the City as part of its inspection.
Notably, in his Complaint, Plaintiff admits that he did not have the required utilities
connected at his home. It appears his only argument is that the City cannot force him to
connect utilities. However, it is clear from the City's Property Maintenance Ordinance that the
City has not only a right, but an obligation to ensure compliance therewith as part of its police
powers.
In light of the authorities cited above, the Court finds that the City properly adopted
minimum maintenance requirements for existing structures in order to promote the health, morals,
security and general welfare of its citizens. Further, the City's actions resulting in expense or loss
of the Plaintiff's property does not amount to a taking without due process of law because it was
necessary to protect the public.
The same analysis applies to the County. It established ceratin procedures to ensure public
safety. It adhered to those procedures. Indeed, based upon the affidavit ofMr. Helton, Plaintiffwas
given excess time and sufficient notice to reclaim his cats. He did not.

IV.

CONCLUSION

The Court having reviewed the motions and the record in this matter, finds that no genuine
issues ofmaterial fact exist and that the City ofAshland, Kentucky and Boyd County, Kentucky are
entitled to judgment as a matter of law.
Accordingly, IT IS HEREBY ORDERED:
(1)

Plaintiffs Motion for Summary Judgment [Docket No. 14] be OVERRULED;

(2)

Defendant City of Ashland's Motion for Summary Judgment [Docket No. 15]
be SUSTAINED;

(3)

Defendant Boyd County, Kentucky's Motion for Summary Judgment [Docket No.

18] be SUSTAINED; and
(4)

Plaintiffs claims against it are hereby DISMISSED WITH PREJUDICE.

This 22 nd day of February, 2013.

SIgned BY'
~ R. WIJot .k.
Unffed States DIStnct _