Bowman v. City of Olmsted Falls et al

Filing 42

Memorandum of Opinion and Order: Defendants City of Olmsted Falls and Robert W. McLaughlin's Motion for Summary Judgment is granted. Judge Patricia A. Gaughan on 8/14/17. (LC,S) re 28

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

Ted Bowman,
Plaintiff,
Vs.
City of Olmsted Falls, et al.,
Defendant.

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CASE NO. 1:16 CV 2084
JUDGE PATRICIA A. GAUGHAN

Memorandum of Opinion and Order

Introduction
This matter is before the Court upon Defendants City of Olmsted Falls and Robert W.
McLaughlin’s Motion for Summary Judgment (Doc. 28). This case arises out of actions taken
by defendants against plaintiff in connection with his property. For the following reasons, the
motion is GRANTED.
Facts
Plaintiff Ted Bowman filed this Complaint against defendants City of Olmsted Falls (the
City) and Robert W. McLaughlin.1

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Plaintiff had also named defendants Luke McConville and Neal Grossman who
have been previously dismissed by this Court pursuant to a prior Memorandum of
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Defendants present the following facts supported by the affidavits of McLaughlin, Santo
Incorvaia (prosecutor and Assistant Law Director), and Angela Mancini (Clerk of Council), and
the depositions of plaintiff and McLaughlin with incorporated exhibits. Plaintiff has owned
property located in the City since May 2001 when he acquired it through a lot split. Plaintiff had
previously occupied the property as the tenant of the property owners since 1993. When plaintiff
acquired the property, it was zoned as Mixed Use Planned Development (MUPD). The zoning
was changed in 2016 to Mixed Use Traditional Neighborhood District (MUTND). In April 2002,
and through December 1, 2014, McLaughlin was the Chief Building Official for the City
whereby he was responsible for the inspection and enforcement of state and city zoning, land
use, construction, and building codes. Around June 2002, McLaughlin first became aware of
zoning and use code violations on plaintiff’s property when he observed a construction drive
being built on the property without permits. According to McLaughlin, plaintiff has had
numerous ongoing zoning and use violations on the property such as cutting down trees and
building a driveway without the appropriate permits or submitting development plans for review
as required under city code. Plaintiff has essentially used the property as a junk yard, storing
several dilapidated vehicles, other scrap, waste and materials, and barrels with unknown
contents- all in conflict with the permissible uses for the property. McLaughlin cited plaintiff for
the driveway and the accumulation of junk and debris on the property. The citations were
dismissed at one point so that plaintiff could seek a variance from the City.
In March 2006, plaintiff filed an Application to have his uses declared a legal preexisting non-conforming use. The Board of Zoning Appeals (BZA) held a hearing and denied the

Opinion and Order.
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application. The City Council affirmed the decision. Plaintiff appealed to the Cuyahoga County
Court of Common Pleas which affirmed the decision.
Plaintiff continued to disregard the zoning and use codes for his property which resulted
in new citations being issued and which were ultimately prosecuted through Berea Municipal
Court.
Several of the City’s citations against plaintiff resulted in litigation, but in April 2016, the
City dismissed the pending cases in exchange for plaintiff’s plea of guilty to violating City
Ordinance 1210.03(B). Only a Verified Petition for Injunctive Relief filed by the City in the
Cuyahoga County Court of Common Pleas, and alleging nuisance, remained pending. The
parties entered into an agreed judgment entry in May 2015 whereby plaintiff agreed to remove a
long list of items from his property by specified dates or the City would enter the property and
remove it. Plaintiff failed to comply with the agreed judgment entry and was found to be in civil
contempt. The court thereafter ordered the removal and auction of items from plaintiff’s
property. A receiver was appointed to oversee the process. Some items were then sold at
auction. In September 2016, the Eighth District Court of Appeals affirmed the trial court order
authorizing the receiver to sell the items at auction that were the subject of the nuisance action.
Plaintiff submits his own affidavit which sets forth the following pertinent facts. Since
1993, when plaintiff was merely a tenant on the property, and through 2000, when the former
owners were considering selling a portion of the property, plaintiff had used a part of the
property for the orderly storage of vehicles, machinery, equipment, and materials used in his
contracting business without any objection from the City. The Planning Commission was aware
of plaintiff’s use of the property at the time it approved the lot split. In reliance on this implied

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assurance, plaintiff purchased the property in 2001. The City’s posture toward plaintiff abruptly
changed in 2002 when McLaughlin was hired as the Chief Building Official. Defendants
thereafter harassed plaintiff with criminal prosecution and civil litigation. For instance, while the
former building commissioner had told plaintiff that a permit was not required to install a
driveway on the property, McLaughlin issued several citations to plaintiff. The 2006 BZA
hearing proceeded as scheduled without plaintiff’s counsel although he had filed a motion for
continuance. McLaughlin furnished false and misleading information at the hearing.
McLaughlin continued to issue new citations during the pendency of the appeals regarding
plaintiff’s use of the property. Other property owners in the City were not issued citations or
prosecuted criminally for similar conditions. If such owners were cited, defendants did not
pursue recourse even where the conditions were not abated.
Plaintiff filed this Complaint setting forth three claims. Two claims remain: Count One,
brought pursuant to § 1983, alleges that defendants selectively enforced the laws against
plaintiff. Count Two alleges the taking of plaintiff’s property without just compensation. 2
This matter is now before the Court upon Defendants City of Olmsted Falls and Robert
W. McLaughlin’s Motion for Summary Judgment.
Standard of Review
Summary Judgment is appropriate when no genuine issues of material fact exist and the
moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986) (citing Fed. R. Civ. P. 56(c)); see also LaPointe v. UAW, Local 600, 8 F.3d 376,

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Count Three had alleged a breach of fiduciary duty against defendants
McConville and Grossman who, as previously noted, have been dismissed.
McConville was the court appointed receiver. Grossman was the auctioneer.
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378 (6th Cir. 1993). The burden of showing the absence of any such genuine issues of material
facts rests with the moving party:
[A] party seeking summary judgment always 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 affidavits,” if any, which it believes demonstrates the
absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323 (citing Fed. R. Civ. P. 56(c)). A fact is “material only if its resolution
will affect the outcome of the lawsuit.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).
Accordingly, the nonmoving party must present “significant probative evidence” to demonstrate
that “there is [more than] some metaphysical doubt as to the material facts.” Moore v. Philip
Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir.1993). The nonmoving party may not simply rely on
its pleading, but must “produce evidence that results in a conflict of material fact to be solved by
a jury.” Cox v. Kentucky Dep’t. of Transp., 53 F.3d 146, 150 (6th Cir. 1995).
The evidence, all facts, and any inferences that may permissibly be drawn from the facts
must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Eastman Kodak Co. v. Image Technical Servs.,
Inc., 504 U.S. 451, 456 (1992). However, “[t]he mere existence of a scintilla of evidence in
support of the plaintiff's position will be insufficient; there must be evidence on which the jury
could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252.
Summary judgment should be granted if a party who bears the burden of proof at trial
does not establish an essential element of his case. Tolton v. American Biodyne, Inc., 48 F.3d
937, 941 (6th Cir. 1995) (citing Celotex, 477 U.S. at 322). Moreover, if the evidence is “merely
colorable” and not “significantly probative,” the court may decide the legal issue and grant
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summary judgment. Anderson, 477 U.S. at 249-50 (citation omitted).
Discussion
(1) Count One
Count One alleges, pursuant to § 1983 3, that defendants selectively enforced the laws
against plaintiff depriving him of due process and equal protection.
It has been recognized that
The Equal Protection Clause prohibits the selective enforcement of laws based on
arbitrary classifications. To successfully plead a § 1983 claim of selective enforcement,
plaintiffs must satisfy the following three elements: (1) a state actor must single out a
person or persons belonging to an identifiable group, such as those of a particular race or
religion, or a group exercising constitutional rights, for prosecution even though he has
decided not to prosecute persons not belonging to that group in similar situations; (2) he
must initiate the prosecution with a discriminatory purpose; and (3) the prosecution must
have a discriminatory effect on the group to which plaintiff belongs. The standard for
establishing a selective enforcement claim is a demanding one. State actors benefit from
a strong presumption that they have properly discharged their duties; only clear evidence
to the contrary will overcome this presumption.

Conrad v. City of Berea, 2017 WL 1050389 (N.D. Ohio Mar. 20, 2017) (internal citations and
quotations omitted).
Defendants argue that the selective enforcement claim is barred by the doctrine of
collateral estoppel. “Under Ohio law, the doctrine of res judicata encompasses the two related

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Count One actually alleges a “ violation of 42 U.S.C. § 1983.” Section 1983
authorizes private parties to enforce their federal constitutional rights against
municipalities and state and local officials. It does not create substantive rights; it
merely serves as a vehicle to enforce deprivations of “rights, privileges, or
immunities secured by the Constitution and laws of the United States.” Turner v.
Viviano, 2005 WL 1678895, at *5 (E.D. Mich. July 15, 2005) (citing Oklahoma
City v. Tuttle, 471 U.S. 808 (1985)). “One cannot go into court and claim a
˜violation of § 1983" -for § 1983 by itself does not protect anyone against
anything.” Chapman v. Houston Welfare Rights Org., 441 U.S. 600 (1979).
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concepts of claim preclusion, also known as res judicata or estoppel by judgment, and issue
preclusion, also known as collateral estoppel. Issue preclusion, or collateral estoppel, precludes
the re-litigation, in a second action, of an issue that had been actually and necessarily litigated
and determined in a prior action that was based on a different cause of action.” Yeager v.
FirstEnergy Generation Corp., 2017 WL 2797424 (N.D. Ohio June 28, 2017) (internal citations
and quotations omitted). Four elements are necessary to establish collateral estoppel: “(1) the
precise issue must have been raised and actually litigated in the prior proceedings; (2) the
determination of the issue must have been necessary to the outcome of the prior proceedings; (3)
the prior proceedings must have resulted in a final judgment on the merits; and (4) the party
against whom estoppel is sought must have had a full and fair opportunity to litigate the issue in
the prior proceeding.” Georgia–Pac. Consumer Products LP v. Four–U–Packaging, Inc., 701
F.3d 1093, 1098 (6th Cir. 2012) (citations omitted).
For the following reasons, the Court agrees with defendants that collateral estoppel bars
plaintiff’s selective enforcement claim because he previously raised this issue against the City
and it was rejected. As discussed earlier, plaintiff appealed the 2006 decision of the City Council
affirming the BZA denial of his application to have the use of his property declared a legal preexisting condition. The appeal to the Cuyahoga County Common Pleas Court included a claim
that “the enforcement of the zoning ordinances in the instant matter deny the equal protection in
the laws” in that “he has been singled out for prosecution under the zoning ordinances.” Plaintiff
cited case law which “announced that the burden for selective prosecution requires a showing...”
Plaintiff noted, “The record establishes that past owners of the subject property were not
prosecuted for similar violations and that present owners of surrounding properties are not so

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prosecuted for similar uses.” (Doc. 28-5, at 6-8). The judgment of the Common Pleas Court
affirming the City’s decision recognized that “Appellant also complains that enforcement of the
zoning ordinances upon his real estate denies him equal protection of the law.” The court
concluded that upon review of the record, the City’s action was not illegal, arbitrary, capricious,
unreasonable, or otherwise unsupported by the preponderance of substantial, reliable, and
probative evidence. (Doc. 28-6 at 3) Plaintiff appealed the decision of the Common Pleas Court,
but the Eighth District Court of Appeals dismissed the appeal on November 26, 2007 at
appellant’s cost for failure to file a brief. (appeals.cuyahogacounty.us)
The elements of collateral estoppel are met. The precise selective enforcement issue was
raised and litigated in the Common Pleas Court appeal; the determination of the issue was
necessary in affirming the decision of the City; the Common Pleas Court appeal resulted in a
final judgment on the merits; and the plaintiff had a full and fair opportunity to litigate the issue
in the Common Pleas Court and on appeal.
Plaintiff maintains that collateral estoppel does not apply for several reasons. For the
following reasons, the Court finds plaintiff’s arguments unpersuasive. Plaintiff asserts that he
was forced to present his case to the BZA without the benefit of counsel- presumably denying
him the full and fair opportunity to litigate this constitutional issue. However, while plaintiff’s
counsel was not present at the administrative hearing due to the BZA’s failure to consider his
counsel’s request for a continuance, plaintiff was represented by counsel in filing his brief in the
Common Pleas Court where the issue of selective prosecution was raised. Accordingly, he had a
full and fair opportunity to litigate the issue. Plaintiff asserts that he raised the selective
prosecution issue during the course of his criminal proceedings, but defendants refused to

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produce discovery. Nevertheless, plaintiff did raise the issue in the civil proceeding where there
was a judgment on the merits. Plaintiff contends that the claims in the preceeding action and this
action are not identical. However, as evidenced by the arguments made by plaintiff in his brief
in the Common Pleas Court, the claims are identical. Finally, plaintiff points out that Ohio
courts frown upon the use of criminal proceedings to estop parties in subsequent civil
proceedings. However, the Court is not using plaintiff’s prior guilty plea to estop this claim, but
rather plaintiff’s prior civil action.
For these reasons, the Court finds that collateral estoppel bars plaintiff’s selective
enforcement claim.4
Count Two alleges the taking of plaintiff’s property without just compensation.
According to the Complaint, this claim relates to the taking of plaintiff’s chattel property and not
his real property. The claim alleges that the City, through the appointed receiver and the
auctioneer, did the taking.

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Because the Court concludes that collateral estoppel applies, it need not reach
defendants’ alternative arguments, i.e., portions of the selective enforcement
claim are barred by the statute of limitations, plaintiff waived his selective
enforcement claim by pleading guilty to a zoning violation in exchange for the
dismissal of other citations, and the selective enforcement claim fails on the
merits because the City’s decision to prosecute plaintiff was not discriminatory in
purpose or effect. The Court notes, however, that plaintiff has not, at a minimum,
established the first element of a selective enforcement claim- he was singled out
as a person belonging to an identifiable group, such as those of a particular race or
religion, for prosecution even though persons not belonging to that group in
similar situations were not prosecuted. Plaintiff does not dispute defendants’
statement that plaintiff, as well as the other property owners he identifies who
were supposedly treated differently, are white men or white couples.
Furthermore, to the extent that the Complaint asserts a separate due process
violation, plaintiff’s brief makes clear that such a claim is based on defendants’
alleged selective enforcement. (Doc. 40 at 14-16). Thus, it fails for all the
reasons discussed herein.
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Defendants argue that this claim is barred by the doctrine of collateral estoppel as well.
This Court agrees. As discussed earlier, the City filed a nuisance action in the Common Pleas
Court. (Case No. CV 14 835343) When plaintiff failed to abide by an agreed judgment entry to
remove items from his property, a receiver was appointed. Plaintiff appealed the trial court order
authorizing the receiver to sell the chattel at auction. In affirming the trial court, the Eighth
District Court of Appeals rejected plaintiff’s argument that “the trial court failed to oversee the
receiver’s management of the receivership estate by authorizing the receiver to sell the assets at
his sole discretion, without the court’s prior approval...” (Doc. 25 Ex. 3) The court of appeals
concluded that the receiver had the authority to remove and auction the chattel, and that the trial
court properly oversaw the process. (Id.) Although the plaintiff in that case did not expressly
allege a takings claim, his allegation was the same as Count Two herein: the receiver exceeded
his authority by improperly removing and auctioning the items.
Even if the claim is not collaterally estopped, the Court agrees with defendants that
plaintiff waived his right to bring this claim when he signed the agreed judgment entry in the
Common Pleas Court. Plaintiff agreed in the judgment entry that if he failed to perform (i.e.,
remove the identified chattel within the time line provided), the City had the right to enter the
property, remove the chattel, and auction it at the City’s sole discretion. The agreed judgment
entry further stated, “Any proceeds from the auctioning or sale of the subject chattel property
shall be applied toward the cost of removal.” (Doc. 25 Ex. 2 at 5) It is not disputed that plaintiff
failed to comply with the agreed judgment entry which precipitated the appointment of the
receiver. (Doc. 25 Ex. 14) The Eighth District Court of Appeals, in affirming the removal and
sale of the chattel, concluded that the City’s actions were authorized under the agreed judgment

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entry. The court stated that “by the terms of the agreed judgment entry, the city had full
discretionary authority to enter the Columbia Road premises, remove the offending items... and
then sell them at auction.” (Doc. 25 Ex. 3) On this basis, plaintiff has waived his takings claim.
For these reasons, summary judgment is appropriate on Count Two.
Conclusion
For the foregoing reasons, Defendants City of Olmsted Falls and Robert W.
McLaughlin’s Motion for Summary Judgment is granted.
IT IS SO ORDERED.

/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Court
Chief Judge
Dated: 8/14/17

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