Nimer et al v. Litchfield Township Board of Trustees et al

Filing 25

Opinion and Order. For the following reasons, Defendant's Motion for an Order to Abstain from Proceeding in this Case is granted; Plaintiff's Complaint is dismissed without prejudice; and Plaintiff's Motion for Leave to File an Amended Complaint is denied as moot. Judge Christopher A. Boyko on 2/6/12. (M,M)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

ABDALLA A. NIMER, et al.,
Plaintiffs,
vs.
LITCHFIELD TOWNSHIP BOARD
OF TRUSTEES, et al.,
Defendants.

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CASE NO. 1:11CV687
JUDGE CHRISTOPHER A. BOYKO
OPINION AND ORDER

CHRISTOPHER A. BOYKO, J.:
This matter comes before the Court upon the Motion (ECF DKT #11) of Defendants
for this Court to abstain from proceeding in this case. For the following reasons, the Motion
is granted; Plaintiffs’ Complaint is dismissed without prejudice; and Plaintiffs’ Motion (ECF
DKT #17) for Leave to File an Amended Complaint is denied as moot.
I. FACTUAL BACKGROUND
On April 6, 2011, Plaintiffs, Abdalla Nimer, Cathy Fobes, Mi-Ke’s Home, LLC, and
Medina Foods, Inc., filed their Complaint against the Litchfield Township Board of Trustees,
the Litchfield Township Zoning Commission, the individual members of the Board and
Commission, and the Zoning Inspector, Eric Noderer. Plaintiffs allege that Defendants

selectively enforced the Litchfield Township Zoning Resolution in a discriminatory manner,
violating Plaintiffs’ right to equal protection; Defendants maliciously, and without legal
justification, interfered with a lease agreement between Medina Foods and Mi-Ke’s Home;
and Mi-Ke’s Home and Cathy Fobes never were served with Defendants’ Stop Work Order,
violating their right to procedural due process. Defendants answered, denying jurisdiction
due to a pending state appellate proceeding.
Since 1999, Plaintiff Medina Foods has operated a meat processing plant on the
property at issue in this suit, and has produced, packaged, and marketed meat products such
as beef jerky, “smokies,” and other snacks made from beef and pork. Plaintiffs also keep and
feed cattle on the property. Recently, Plaintiffs sought to expand their operations by doing
their own butchering of cattle, and adding the butchering of hogs and the producing of ham
products to their operations. Expanding their operations in this way would require additional
buildings. The Litchfield Board of Trustees required Plaintiffs to obtain zoning certificates
before constructing and improving buildings on their land. Plaintiffs admit they did not get
the zoning certificates; but argue the use of their land is agricultural. Under R.C. 519.21(A), a
township cannot enforce zoning regulations against a building if the use of the building is
incidental to an agriculture purpose.
On February 15, 2011, Medina County Common Pleas Judge James L. Kimbler ruled,
in a complaint filed by the Litchfield Township Board of Trustees against Plaintiffs, Abdalla
Nimer and Cathy Fobes Al-Nimer, that the use of buildings for the processing of meat
products is not directly and inseparably linked to the care and raising of cattle. He further
determined that the slaughtering and processing of cattle is not incidental to the keeping and

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feeding of cattle on the land. Thus, Plaintiffs (specifically, the Nimers) were ordered to
comply with the Township Resolution and obtain zoning certificates for the construction of
the proposed buildings. Plaintiffs appealed that decision; and the appeal is pending in the
Ninth District Court of Appeals, Case No. 11CA-0037-M.
Defendants ask this Court to abstain from proceeding in the instant matter because
they contend abstention is appropriate when the central issues before the federal court are the
subject of a pending state court appeal.
II. LAW AND ANALYSIS
Abstention
“‘Abstention from the exercise of federal jurisdiction is the exception, not the rule,’ .
..Abstention rarely should be invoked, because the federal courts have a ‘virtually unflagging
obligation . . . to exercise the jurisdiction given them.’” Ankenbrandt v. Richards, 504 U.S.
689, 705 (1992). However, exceptional circumstances may support abstention under
established Supreme Court doctrine or to promote judicial economy.
In their Motion, Defendants do not identify the particular abstention doctrine which
should operate in this case. In Younger v. Harris, 401 U.S. 37, 44-45 (1971), the Supreme
Court held that, absent extraordinary circumstances, a federal court must decline to interfere
with pending state criminal proceedings, because of considerations of comity, equity and
federalism. There is a strong policy against federal intervention into state proceedings “in the
absence of great and immediate irreparable injury to the federal plaintiff.” Younger, 401 U.S.
at 44; see also, Fieger v. Cox, 524 F.3d 770, 774 (6th Cir. 2008). The Younger abstention has
been extended to civil proceedings in which important state interests are implicated.

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Huffman v. Pursue, Ltd., 420 U.S. 92 (1975); Fieger, id.
In federal jurisprudence, three requirements have developed for the appropriate
application of the Younger abstention principle: (1) there must be pending state judicial
proceedings; (2) those proceedings must implicate important state interests; and (3) there
must be an adequate opportunity in the state proceedings to raise constitutional challenges.
Middlesex County Ethics Comm’n v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982);
Coles v. Granville, 448 F.3d 853, 865 (6th Cir. 2006). “So long as the constitutional claims
of respondents can be determined in the state proceedings and so long as there is no showing
of bad faith, harassment, or some other extraordinary circumstances that would make
abstention inappropriate, the federal courts should abstain.” Middlesex, 457 U.S. at 435. The
judicial proceeding need not be a state court proceeding, but may involve administrative
proceedings that are judicial in nature. New Orleans Pub. Serv., Inc. v. Council of New
Orleans, 491 U.S.350, 370-71 (1989); Fed. Express Corp. v. Tenn. Pub. Serv. Comm’n, 925
F.2d 962, 968-69 (6th Cir.1991).
Moreover, the Sixth Circuit has held the Younger doctrine applies in cases where
Plaintiffs seek monetary damages. See Carroll v. City of Mount Clemens, 139 F.3d 1072,
1075 (6th Cir. 1998) (holding, “[plaintiff’s] present federal action for damages under 42
U.S.C. §1983 and the Fair Housing Act is a textbook case for Younger abstention”); Schilling
v. White, 58 F.3d 1081, 1084 (6th Cir.1995) (“our Circuit has recognized that the relevant
inquiry when considering abstaining under Younger is the nature and degree of the state’s
interest in its judicial proceedings, rather than whether a party is seeking injunctive relief or
monetary damages.”)

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“A district court deciding to abstain under Younger has the option of either
dismissing the case without prejudice or holding the case in abeyance.” Eidson v. State of
Tennessee Dept. of Children’s Services, 510 F.3d 631, 638 (6th Cir. 2007) (quoting Coles,
448 F.3d at 866).
Therefore, the Court must examine Plaintiffs’ Complaint and apply the three-part test set
forth in Younger to determine whether abstention is appropriate.
Under the first prong of Younger, the Court must consider whether proceedings in
state court are pending. The parties do not dispute that Plaintiffs appealed Judge Kimbler’s
Order to the Ninth District Court of Appeals, Case No. 11CA-0037-M; and the appeal
remains pending as of today’s date. In Huffman, supra, the Supreme Court explained its
rationale for applying Younger throughout the appellate process:
Virtually all of the evils at which Younger is directed would inhere in federal
intervention prior to completion of state appellate proceedings, just as surely as they
would if such intervention occurred at or before trial. Intervention at the later stage is
if anything more highly duplicative, since an entire trial has already taken place, and it
is also a direct aspersion on the capabilities and good faith of state appellate courts.
Id. at 608. The Supreme Court went on to say, “[w]e therefore hold that Younger standards
must be met to justify federal intervention in a state judicial proceeding as to which a losing
litigant has not exhausted his state appellate remedies.” Id. Since the Nimers’ appeal is
pending, the first Younger requirement is satisfied.
The second prong of Younger is equally satisfied. “It is well-established that for
abstention purposes, the enforcement and application of zoning ordinances and land-use
regulations is an important state and local interest.” Cmty. Treatment Centers, Inc. v. City of
Westland, 970 F.Supp. 1197, 1223-24 (E.D.Mich. 1997). In the state proceedings below,

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Judge Kimbler upheld the enforcement of the Litchfield Township Zoning Resolution and
ordered the Nimers to obtain zoning certificates for the construction of any buildings on the
property. The significant local interest in upholding the Township’s zoning and land-use
regulations is not disputed.
For the third prong under the Younger doctrine, the Court must ascertain Plaintiffs’
opportunity to assert their constitutional challenges in the state court proceeding. The
“pertinent inquiry is whether the state proceedings afford an adequate opportunity to raise the
constitutional claims ...” Moore v. Sims, 442 U.S. 415, 430 (1979). “A federal plaintiff
arguing that he had an inadequate opportunity to raise constitutional claims in state court has
the burden to show that state procedural law barred presentation of [its] claims.” Tesmer v.
Granholm, 333 F.3d 683, 690 (6th Cir. 2003) (en banc), rev’d on other grounds, 543 U.S. 125
(2004). Abstention is “unwarranted” only when it is clearly shown that state law barred the
presentation of the constitutional claims. Id.
In the within matter, Plaintiffs claim, pursuant to 42 U.S.C. § 1983, that Defendants
violated their Fifth and Fourteenth Amendment rights by the unconstitutional taking of their
property without just compensation; that Defendants violated Plaintiffs’ right to equal
protection under the law by selectively enforcing the Zoning Resolution; Defendants
tortiously interfered with contract; and Defendants violated Plaintiffs’ right to procedural due
process.
State courts have concurrent jurisdiction over 42 U.S.C. § 1983 suits, like the one
brought by Plaintiffs in this action. Maine v. Thiboutot, 448 U.S. 1,3, n.1 (1980). Moreover,
Plaintiffs’ Assignments of Error in their Appellate Brief include their assertion that their due

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process and equal protection rights were violated. Not only are Plaintiffs’ constitutional
claims not barred, they have been presented, for the most part, for consideration by the
appellate panel. Thus, the third Younger requirement is satisfied.
III. CONCLUSION
For the foregoing reasons, the Court holds that all the requirements for the application
of the Younger abstention doctrine are met. This abstention decision is not based upon the
lack of subject matter jurisdiction, but is drawn from “strong policies counseling against the
exercise of such jurisdiction.” Ohio Civil Rights Comm’n v. Dayton Christian Sch., Inc., 477
U.S. 619, 626 (1986).
Defendants’ Motion (ECF DKT #11) for this Court to abstain from proceedings in this
case is granted; Plaintiffs’ Complaint is dismissed without prejudice; and Plaintiffs’ Motion
(ECF DKT #17) for Leave to File an Amended Complaint is denied as moot.

IT IS SO ORDERED.
DATE: February 6, 2012

S/Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge

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