Kennard v. City of Ashland, Kentucky et al
Filing
39
MEMORANDUM OPINION & ORDER, granting 36 THIRD MOTION for Summary Judgment by City of Ashland, Kentucky. Signed by Judge Henry R. Wilhoit, Jr on 9/2/15.(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,
y,
MEMORANDUM OPINION AND ORDER
CITY OF ASHLAND, KENTUCKY, eta!.,
DEFENDANTS.
This matter is before the Court upon the Defendant City of Ashland's Renewed Motion
for Summary Judgment [Docket No. 36].
I.
This case arises from Plaintiffs 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 propetiy as it
was determined to be unfit and unsafe for human occupancy or use. It is before this Court on
remand from the United States Court of Appeals of the Sixth Circuit for consideration of a claim
for lack of procedural due process.
By letter dated June 21,2011, Scott Niece, the City's Property Maintenance Manager,
notified the Plaintiff that an inspection of his propetiy 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. I 06, 2009 series, because the dwelling lacked c01mected
and working utilities. [Docket No. 15-2].
The letter further advised Plaintiff that he was
required to reco1111ect all his utilities and the same was to be visibly verified by the inspector no
later than I :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 Plaintiffs 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 Plaintiffs inquiry and relayed the following
information to the Plaintiff:
The lack of utilities is considered a life safety violation and
[the City] cmmot 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](emphasis added).
This letter also advised Plaintiff that his time to comply with the notice of violation had
been extended to Jnly 22, 2011.
The Plaintiff never restored water and electric service to the home nor did he indicate
that he disagreed with the ruling.
2
On July 25, 20 II, Scott Niece sent Plaintiff a "Friendly Reminder" that he was required
to restore all utility services by 4:00P.M. that day or the house would be condemned as stated in
the previous notices. [Docket No. 15-5]. This notice also provided "[i]fyou have any questions
or need clarification of this door hanger, you may reach me at (606) 327-2030. !d. There is no
indication in the record that Plaintiff called Mr. Niece.
Upon inspection that same day at 4: I 0 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 Plaintiffs 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.
The notice also provided, in bold, "[i)f
you have not contacted our Legal Department within 30 days of receipt of this Order, the
structure listed above will be demolished." Jd. (emphasis in original).
Plaintiff again failed to contact the City of Ashland Legal Depmtment within thitty days
to indicate any objection to the threatened demolition of his property. Ultimately, the house was
razed after thirty days had passed without objection.
Several months after the Plaintiffs house was condemned, one of the City's Propetty
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
3
explained to the Plaintiff that it was against the City's policies and regulations to allow animals
to stay in an uninhabitable dwelling. !d. 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 propetiy. !d. The house cats were
immediately taken to the Boyd County Animal Shelter. !d.
After waiting for ten days, tln·ee 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.
This Court granted summary judgment in favor of the Defendants on these claims. The
United States Court of Appeals for the Sixth Circuit affirmed this ruling, holding that the City's
condemnation of the Plaintiffs property was not arbitrary and capricious but was related to the
City's interest in protecting the health and welfare of its citizens and, as such, Plaintiffs
substantive due process rights were not violated. However, on review, the Sixth Circuit also
identified a procedural due process claim implicit in the Plaintiffs allegations as "he appears to
challenge the procedures taken in connection with the deprivation of his property- that is, the
failure to provide him with a trial prior to that deprivation- which is the essence of a procedural
4
due process claim." [Docket No. 23).
After remand, the parties filed cross motions for moved for summary judgment with
regard to the alleged procedural due process violation. Ruling in favor of the Defendant, this
Court found:
The Ordinances provide a meaningful means to assess
violations and ample opportunity to be heard in that regard. The
ordinance, as written, does not violate the procedural due process
rights of Plaintiff.
With regard to the Ordinances as applied to Plaintiff, it
cmmot be disputed that Plaintiff was given written notice of the
claimed violation of the City Ordinance which justified
condemnation of the premises and was given notice of a date
certain by which repair must be made or that adverse action would
be taken. The City provided the Plaintiff with three (3) written
notices specifying his violations of the Ordinance and advising
him that condemnation and/or razing of his property would take
place after certain dates unless he conected the violation or took
further action.
Despite notice of the need for action to be taken and the
existence of an appeal process, the Plaintiff chose to take no action
on his own behalf. At no time throughout the condemnation
process, nor up to the point of filing this lawsuit, did the Plaintiff
inquire into or request a hearing, formal or informal, or seek any
other type of redress from the City pertaining to the condemnation
of his home. At no time did the Plaintiff invoke the appeals process
provided for by Section Ill of the IPMC. Only after having failed
to avail himself of the process provided, Plaintiff instituted this
lawsuit. It strains credibility for Plaintiff to ignore the procedures
to which he was entitled and then to challenge the sufficiency of
those very procedures.
[Docket No. 30).
Plaintiff, again, appealed. He argued that he was entitled to a trial by judiciary before he
could be deprived of his property and that his procedural due process rights were violated by the
City of Ashland in this instance. The Court of Appeals held that Section 111 of the International
5
Property Maintenance Code (IPMC) sets forth the means of appeal of an Order or notice issued
under the Code. The Court also noted and held that the City's notices to Kennard did
not specifically inform him of this appeal procedure. The Sixth Circuit ruled that this Comi had
in its ruling pointed out the existence of the appeal procedure set fotih in
Section Ill of the IPMC "but did not address the constructive adequacy of that notice" and
pointed out the apparent conflict of authority in that regard between City ofW. Covina v. Perkins,
525 U.S. 234 (1999) and Memphis Light, Gas and Water Division v. Craft, 436 U.S. I (1978).
Upon the issuance of a final mandate, this Court issued its Order dated January 13,2015,
directing the parties to file Memoranda of Law addressing the constitutional adequacy of the
notice ofKetmard's right to appeal proved by Section Ill of the IPMC.
In response, the City of Ashland filed a revised Motion for Summary Judgment. Plaintiff
sought a writ of certiorari from the United States Supreme Court, which was denied. Plaintiff has
not responded to Defendant's dispositive motion or filed his own motion.
II.
Summary judgment is appropriate where "the pleadings, the discovety and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56( c). The moving
party "bears the initial responsibility of informing the district court of the basis for its motion,
and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence
of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The
6
Court views all evidence in the light most favorable to the non-moving party. Matsushita Elec.
Indus. Co., Ltd v. Zenith Radio CoT]J., 475 U.S. 574,587 (1986)." 'The mere existence of a
scintilla of evidence in support of the [non-moving pmiy's] position will be insufficient [to
defeat a motion for summary judgment]; there must be evidence on which the jmy could
reasonably find for the [non-moving party].' "lvfoldowan v. City of Warren, 578 F.3d 351, 374
(6th Cir.2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).
III.
The narrow issue before this Court, as framed by the Sixth Circuit Comt of Appeals, is
whether constructive notice of the existence of the IPMC's appeals process satisfies minimum
due process requirements or whether the City of Ashland was required to give to Plaintiff
individualized notice of the method and manner of appeal that is established by Section 111 of
the IPMC in order to satisfY minimum due process requirements.
In Memphis Light, Gas and Water Division v. Craft, the Supreme Court held that a public
utility must inform its customers of the general confines of its intemal administrative dispute
resolution process before terminating utility service if those procedures are not set fotih in any
generally published and available documents by which an individual customer could be expected
to educate himself. 436 U.S. 1 (1978).
Twelve years later, in City ofW Covina v. Perkins, the Supreme Comi held that due
process does not require individualized notice of state law remedies which are established by
published and generally available state statutes and case law and where there has been adequate
notice of the seizure of the property. In such instances, individuals can turn to public sources to
7
be informed of the rights and remedies available to them. Fmiher, the Comi ruled that once a
property owner has been notified of the seizure of his property, a citizen can turn to published
sources to learn of his options and "the City need not take other steps to inform him of his
options". 525 U.S. 234 (1999).
With regard to Memphis Light, in City ofT·Vest Covina, the Court noted, "while Memphis
Light demonstrates that notice of procedures for protecting one's property interests may be
required when those procedures are arcane and not set forth in documents accessible to the
public, it does not support any general rule that notice of remedies and procedures is required".
Id. at242.
In this case, it is not disputed that the appeal process with respect to such proposed action
as established by Section Ill of the International Property Maintenance Code is generally
available. The appellate procedures of the IPMC are published in book form. Copies ofthe Code
in book form are available in most public libraries. A copy of the International Property
Maintenance Code is available for viewing at the City of Ashland City Building. The provisions
of the Code are accessible to all on the internet simply by "googling" "International Property
Maintenance Code", where the complete procedures are set forth.
Moreover, it is undisputed
that the Plaintiff was given notice on various occasions of the violation of the IPMC for which
his property was being condemned and that if he did not take further action, his property would
be razed after stated dates.
Given the existence of widespread access to the provisions of Section Ill of the IPMC,
the individualized notice contemplated by };femphis Light was not required. The readily
available information, coupled with his actual notice of the seizure of his propetiy provides meet
8
the requirements of due process, as explained in City of West Covina.
IV.
CONCLUSION
Based upon the foregoing, the City of Ashland, Kentucky and Boyd County, Kentucky
are entitled to judgment as a matter of law. Accordingly, IT IS HEREBY ORDERED
Defendant City of Ashland's Renewed Motion for Summmy Judgment [Docket No. 36] be
SUSTAINED.
/tcf
Thi _ _ day of September, 2015.
Signed By:
,:..;.---
Henry R. Wilhoit. Jr.
United States Dletrlct Judge
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?