Cotton et al v. Cincinnati City of et al
Filing
14
OPINION AND ORDER granting 5 City of Cincinnati Defendants' Motion to Dismiss. Signed by Judge S Arthur Spiegel on 11/4/2011. (km1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
STATE OF OHIO, ex rel.,
ALFORD COTTON, et al.,
Plaintiffs,
v.
CITY OF CINCINNATI,
et al.,
Defendants.
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NO:
1:11-CV-00389
OPINION AND ORDER
This matter is before the Court on City of Cincinnati
Defendants’ Motion to Dismiss (doc. 5), Plaintiff’s Response in
Opposition (doc. 9), and Defendants’ Reply (doc. 12).
For the
reasons indicated herein, the Court GRANTS Defendants’ Motion to
Dismiss.
I.
Background
Plaintiffs Alford and Rubbie Cotton owned real property
at 1673 Westwood Avenue in the City of Cincinnati (“the City”),
that they purchased in 2002 (doc. 2).
The property consisted of a
four-story brick building with space for a retail business on the
ground floor, and apartments in the upper floors (Id.).
September
2,
2009,
the
City’s
Department
of
Buildings
On
and
Inspections opened Case B200905114, as a part of which the City
ultimately declared the property to be a nuisance, and demolished
the building located on the property (Id.). Plaintiffs allege that
the City violated their due process rights by failing to notify
them at another Cincinnati address, 72 Sheehan Ave. #1, where they
allege the City had communicated with them previously (Id.).
June
4,
2011,
Plaintiffs
brought
their
four-Count
On
Complaint,
seeking mandamus relief contending the City had a duty to institute
eminent domain proceedings, and seeking declaratory judgment that
the demolition violated their Constitutional rights and they should
not be liable for costs of demolition (Id.).
They further bring a
claim pursuant to 42 U.S.C. § 1983 that their due process and
Fourth Amendment rights were violated, and alleging those who
demolished the building trespassed onto the property (Id.).
The
City
filed
a
motion
to
dismiss
contending
the
Plaintiffs lack standing because they did not live at the Sheehan
Avenue address, that Plaintiff’s claims are not plausible under
Ashcraft v. Iqbal, 129 S.Ct. 1937, 1947 (2009), and that Plaintiffs
received procedural due process (doc. 5).
The City further
contends its conduct in abating dangerous, unsafe, and public
nuisance
conditions
at
private
property
cannot
constitute
an
unreasonable seizure in violation of the Fourth Amendment (Id.).
Because in its view it was justified in demolishing the property to
eliminate a nuisance, it contends no mandamus action can lie so as
to force it to compensate Plaintiffs (Id.).
Further, as it
contends its agents had proper authority to enter the property and
destroy the building, it argues Plaintiffs have no viable trespass
claim (Id.).
Finally, it argues the Defendants are entitled to
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both statutory and qualified immunity, and that no conduct by the
Defendants proximately caused any injury, but rather Plaintiffs
brought any injury upon themselves by maintaining the property in
a dangerous and unsafe condition (Id.).
In support of their
motion, the City proffered evidence of notice it provided to
Plaintiffs by mail, by posting notice at the property, and by
publication, which Defendants request the Court take judicial
notice (Id.). Such demolition notice, in the City’s view, complied
with the requirements in the municipal code, and with procedural
due process requirements under Jones v. Flowers, 547 U.S. 220, 226
(2006) (Id.).
Plaintiffs respond that Defendants’ proffer of documents
along with the motion is an improper attempt to convert a motion to
dismiss into a motion for summary judgment (doc. 9).
Plaintiffs
argue, in any event, the documents are full of hearsay and double
hearsay (Id.).
In Plaintiffs’ view, the Court cannot take
judicial notice of public records and then use them to prove the
truth of the matter asserted (Id.).
Plaintiffs also contend they
have sufficiently alleged standing and the City incorrectly argues
otherwise based on the theory that Plaintiffs did not live at the
Sheehan address (Id.).
Quoting Jones, 547 U.S. at 226, Plaintiffs
contend the City was required to but failed to provide “notice
reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them an
3
opportunity to present their objections” (Id.).
In Plaintiffs
view, the demolition further constituted an illegal seizure of
their property (Id.).
Plaintiffs argue that Defendants have not
established that they are entitled to statutory immunity of their
trespass claim or qualified immunity for their actions against the
property (Id.).
Defendants reply by reiterating that the City had mailed,
posted, and published notice concerning the 1673 Westwood Avenue
property, which more than met the Jones requirement of “notice
reasonably calculated” (doc. 12). Such notice, contend Defendants,
is all a matter of public record, that the Court may notice (Id.).
In the balance of their Reply, Defendants essentially reiterate
their previous arguments (Id.).
II.
The Applicable Standard
A motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) requires the Court to determine whether a
cognizable claim has been pled in the complaint. The basic federal
pleading requirement is contained in Fed. R. Civ. P. 8(a), which
requires that a pleading "contain . . . a short and plain statement
of the claim showing that the pleader is entitled to relief."
Westlake v. Lucas, 537 F.2d 857, 858 (6th
Pardus, 551 U.S. 89 (2007).
Cir. 1976); Erickson v.
In its scrutiny of the complaint, the
Court must construe all well-pleaded facts liberally in favor of
the party opposing the motion.
Scheuer v. Rhodes, 416 U.S. 232,
4
236 (1974).
A complaint survives a motion to dismiss if it
“contain[s] sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.”
Courie v. Alcoa
Wheel & Forged Products, 577 F.3d 625, 629-30 (6th Cir. 2009),
quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009), citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
A motion to dismiss is therefore a vehicle to screen out
those
cases
implausible.
that
are
impossible
as
well
as
those
that
are
Courie, 577 F.3d at 629-30, citing Robert G. Bone,
Twombly, Pleading Rules, and the Regulation of Court Access, 94
IOWA L. REV. 873, 887-90 (2009).
A claim is facially plausible
when the plaintiff pleads facts that allow the court to draw the
reasonable inference that the defendant is liable for the conduct
alleged.
Iqbal, 129 S.Ct. at 1949.
Plausibility falls somewhere
between probability and possibility. Id., citing Twombly, 550 U.S.
at 557.
As the Supreme Court explained,
“In keeping with these principles a court considering a motion
to dismiss can choose to begin by identifying pleadings that,
because they are no more than conclusions, are not entitled to
the assumption of truth. While legal conclusions can provide
the framework of a complaint, they must be supported by
factual allegations. When there are well-pleaded factual
allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Id. at 1950.
The
admonishment
to
construe
the
plaintiff's
claim
liberally when evaluating a motion to dismiss does not relieve a
plaintiff of his obligation to satisfy federal notice pleading
requirements
and
allege
more
than
5
bare
assertions
of
legal
conclusions.
Wright,
Miller
&
Procedure: § 1357 at 596 (1969).
Cooper,
Federal
Practice
and
"In practice, a complaint . . .
must contain either direct or inferential allegations respecting
all of the material elements [in order] to sustain a recovery under
some viable legal theory."
Car Carriers, Inc. v. Ford Motor Co.,
745 F.2d 1101, 1106 (7th Cir. 1984), quoting In Re: Plywood
Antitrust Litigation, 655 F.2d 627, 641 (5th Cir. 1981); Wright,
Miller & Cooper, Federal Practice and Procedure, § 1216 at 121-23
(1969).
The United States Court of Appeals for the Sixth Circuit
clarified the threshold set for a Rule 12(b)(6) dismissal:
[W]e are not holding the pleader to an impossibly high
standard; we recognize the policies behind Rule 8 and the
concept of notice pleading.
A plaintiff will not be
thrown out of court for failing to plead facts in support
of every arcane element of his claim.
But when a
complaint omits facts that, if they existed, would
clearly dominate the case, it seems fair to assume that
those facts do not exist.
Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 437 (6th
Cir. 1988).
III.
Discussion
The parties dispute whether Plaintiffs have standing
without articulating any standard.
In
Lujan v. Defenders of
Wildlife, the Supreme Court spelled out three elements.
“First,
the plaintiff must have suffered an ‘injury in fact,’– an invasion
of
a
legally
protected
interest
which
is
(a)
concrete
and
particularized. . .and (b) ‘actual or imminent,’ not ‘conjectural’
or ‘hypothetical’. . .Second, there must be a causal connection
between the injury and the conduct complained of. . .Third, it must
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be ‘likely,’ as opposed to merely ‘speculative,’ that the injury
will
be
‘redressed
by
a
favorable
(1992),(internal citations omitted).
decision.’”
504
U.S.
555
Plaintiffs have clearly met
the first two requirements, as they lost property as a result of
government action.
Whether their injury is redressable, however,
is not at all likely due to the evidence before the Court.
Though
the parties expend much briefing as to whether Plaintiffs resided
at the Sheehan address, the Court simply does not find such
question controlling here.
If Plaintiffs do indeed have standing in this matter, the
Court finds that public records, which are subject to the hearsay
exception in Federal Rule of Evidence 803(8), clearly establish the
government action here was not only completely justified but
necessary. The Court takes judicial notice of Defendants’ exhibits
thirteen through fifteen, which show the property at 1673 Westwood
was a public nuisance, that the City sent notice to the address,
posted notice at the address, and announced by publication its
intent to remedy the nuisance.
Jackson v. City of Columbus, 194
F.3d 737, 745 (6th Cir. 1999)(Court can consider public records
attached to a motion to dismiss without converting the motion to
one for summary judgment under Rule 56).
Specifically, the evidence–-all from public records-shows a City Inspector found in February 2009 that the “[b]usiness
needs to be vacated due to no heat or water. Also all apartments
are not habitable due to same.
There are dead birds and mice in
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building
and
used
paraphernalia.”
condoms,
feces
and
empty
drug
bags
and
At the hearing Cincinnati Police entered into the
record a report finding evidence of vagrants and vandalism, and
concluded the premises was considered a moral and safety hazard.
The Fire Department entered a report observing numerous open and
broken windows, and found the premises to constitute a high fire
hazard.
Other evidence showed the mechanical systems at the
property were broken, missing, or vandalized, litter and debris
were strewn throughout, the gutters and soffits were deteriorated,
and a retaining wall on the side of the building was collapsing.
The hearing officer concluded the property was a public nuisance
and should be demolished.
Plaintiffs attempt to argue that Defendants’ failure to
track them or an agent down deprived them of notice regarding the
demolition of their property.
The Court finds that under the
circumstances of this case, the City’s notice regarding this
uninhabitated
premises
was
reasonably
calculated
to
apprise
Plaintiffs of the pendency of the hearing regarding their nuisance
property.
Such notice, as argued by Defendants, comported with
requirements of both the municipal code, and with due process.
Plaintiffs’ cited authorities are not on point, as they pertain to
occupied premises, or premises with incompetent or imprisoned
inhabitants, or to cases where there was only notice by publication
(doc. 9 citing Robinson v. Hanrahan, 409 U.S. 38 (1972), Schroeder
v. City of New York, 371 U.S. 208 (1962), Covey v. Town of Somers,
8
351 U.S. 141 (1956)).
As noted by Defendants, the City not only
mailed notice to the address (which could have been forwarded had
Plaintiffs made such arrangements), but posted it at the address,
and then even provided notice by publication.
Plaintiffs would
impose an unreasonable burden on the City by thinking the law
requires more than these efforts to notify them.
Any one with
common sense could have seen the property would rightfully be the
target of municipal action.
The Court, having taken judicial notice of the public
records attached to Defendants’ motion to dismiss, finds no basis
for any of Plaintiffs’ claims, and further agrees that Defendants,
having acted in accordance with law, are entitled to statutory and
qualified immunity in this matter.
Defendants should in no way be
held liable for the demolition costs through a mandamus action, and
the City was under no duty to take the property by eminent domain.
Plaintiffs are rightfully liable for the clean up costs of a mess
they allowed to get out of control.
IV.
Conclusion
Having
reviewed
this
Defendants’ motion well-taken.
matter,
the
Court
finds
the
Accordingly, the Court GRANTS the
City of Cincinnati Defendants’ Motion to Dismiss (doc. 5).
SO ORDERED.
Dated: November 4, 2011
s/S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge
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