Williamson v. Scioto Township Trustees et al
Filing
44
OPINION and ORDER granting 29 Motion for Summary Judgment. Signed by Magistrate Judge Terence P Kemp on 9/5/2014. (agm1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Monty R. Williamson,
:
Plaintiff,
:
v.
:
Case No. 2:13-CV-683
:
Scioto Township Trustees,
et al.,
Defendants.
MAGISTRATE JUDGE KEMP
:
OPINION AND ORDER
This matter is before the Court to consider the motion for
summary judgment filed by Scioto Township, Michael E. Struckman,
and Terry Brill.
Plaintiff Monty R. Williamson has responded and
the motion has been fully briefed.
For the following reasons,
the motion for summary judgment will be granted.
I.
Background
A version of this case was originally filed by Mr.
Williamson against Scioto Township, Mr. Struckman and Mr. Brill
in Pickaway County Common Pleas Court on August 25, 2010.
In
that action, Mr. Williamson asserted claims of trespass,
nuisance, and inverse condemnation and sought punitive damages.
The state court dismissed the case on August 30, 2011, for Mr.
Williamson’s “failure to abide by [the] Court’s Scheduling
Order.”
See Motion for Summary Judgment (Doc. 29), Exhibit H.
On August 9, 2012, Mr. Williamson re-filed suit in Pickaway
County Common Pleas Court against the same defendants and
asserted the same claims.
On June 18, 2013, Mr. Williamson filed an amended complaint
in state court.
In the amended complaint, Mr. Williamson
asserted several new claims including a claim for a negligent
permit process, an unconstitutional culvert policy, ratification,
abuse of office, and willful destruction of evidence.
On July
15, 2013, the defendants removed the case to this Court.
On
October 24, 2013, Mr. Williamson, without leave, filed another
proposed amended complaint.
The Court denied leave, and the
first amended complaint remains at issue here.
II.
Legal Standard
Summary judgment is not a substitute for a trial when
facts material to the Court's ultimate resolution of the case
are in dispute.
It may be rendered only when appropriate
evidentiary materials, as described in Fed. R. Civ. P. 56(c),
demonstrate the absence of a material factual dispute and the
moving party is entitled to judgment as a matter of law.
Poller v. Columbia Broadcasting Systems, Inc., 368 U.S. 464
(1962).
The moving party bears the burden of demonstrating
that no material facts are in dispute, and the evidence
submitted must be viewed in the light most favorable to the
nonmoving party.
(1970).
Adickes v. S.H. Kress & Co., 398 U.S. 144
Additionally, the Court must draw all reasonable
inferences from that evidence in favor of the nonmoving
party.
United States v. Diebold, Inc., 369 U.S. 654 (1962).
The nonmoving party does have the burden, however, after
completion of sufficient discovery, to submit evidence in
support of any material element of a claim or defense on
which that party would bear the burden of proof at trial,
even if the moving party has not submitted evidence to negate
the existence of that material fact.
See Celotex Corp. v.
Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242 (1986).
Of course, since "a party seeking
summary judgment ... bears the initial responsibility of
informing the district court of the basis for its motion, and
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identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact,"
Celotex, 477 U.S. at 323, the responding party is only required
to respond to those issues clearly identified by the moving party
as being subject to the motion.
It is with these standards in
mind that the instant motion must be decided.
III.
Facts
This case arises from the installation of a driveway culvert
on Mr. Williamson’s property in early December, 2008, by Scioto
Township, the location and installation of which Mr. Williamson
objects to, and Scioto Township’s decision not to address the
situation at Township expense, despite Mr. Williamson’s
objections.
These facts are not in dispute.
The following
background relating to these undisputed facts is taken from Mr.
Williamson’s deposition and accompanying exhibits as well as the
affidavits and exhibits submitted by defendants.
In 1999, Mr. Williamson acquired over 80 acres of farmland
in Scioto Township, Pickaway County, Ohio, located at 11672
Coontz Road, Orient, Ohio.
Coontz Road is a Township road.
Mr.
Williamson’s land had belonged to family members and he aspired
to build a house on the land although he lived in West Virginia
for several years after acquiring it.
In 2008, Mr. Williamson
spoke with three prospective builders, including Scott Reynolds
of Reynolds Contracting.
Mr. Reynolds prepared a construction
cost estimate of $110,800 but Mr. Williamson contends that he did
not hire Mr. Reynolds to construct his house.
Despite this, Mr.
Reynolds, on October 22, 2008, applied to Scioto Township for a
driveway culvert permit.
Mr. Reynolds requested that the
Township install the culvert.
4, 2008.
The permit was issued on November
The culvert was installed on or around December 9,
2008, by Keith Kauffeld, a Township Trustee and Mr. Struckman.
At the time of the culvert installation Mr. Struckman was a part-3-
time Township employee but was not a trustee.
Shortly after its
installation, Mr. Williamson became aware of alleged problems
with the culvert.
These problems included the culvert’s alleged
improper installation, location and waterflow damaging an
outbuilding on the property.
In October, 2009, Mr. Williamson contracted with Denny
Grambo of Complete Custom Construction, for the construction of
the house.
Construction of the home by Mr. Grambo appears to
have begun in October, 2009 and was completed in March, 2010.
Around this same time, Mr. Williamson contacted Mr. Struckman, by
now a Township Trustee, to address problems with the culvert
installation dating back to December, 2008.
Mr. Struckman met
with Mr. Williamson at the property and Mr. Williamson contends
that Mr. Struckman stated at the end of the meeting “[w]e didn’t
want you to build here.”
Mr. Struckman disputes that he made
such a comment.
In this same time period, Mr. Williamson also contacted Mr.
Brill to discuss the issues relating to the culvert and Mr. Brill
suggested that Mr. Williamson attend an upcoming meeting of the
Township Trustees.
Mr. Williamson attended a meeting on April 5,
2010, voiced his concerns about the culvert and stated that he
had not authorized Mr. Reynolds to act as his agent.
issue was not resolved at that meeting.
The culvert
Mr. Williamson attended
another meeting on May 19, 2010 and raised the same issues.
At
this meeting, a decision was made by the Trustees to solicit an
opinion from the county prosecutor about the culvert.
At a meeting held June 2, 2010, the prosecutor’s update
advising removal and reinstallation of the culvert at the
Township’s expense was read.
Mr. Struckman and Mr. Brill
disagreed with the prosecutor’s opinion, would not second a
motion to follow the prosecutor’s advice, and, as a result, the
motion was not passed.
At the July 7, 2010 meeting Mr. Struckman
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and Mr. Brill voted in favor of a resolution seeking a second
opinion.
The second opinion, received on August 12, 2010, stated
that the Township was not liable for relocating the culvert.
IV. The Motion for Summary Judgment
In their motion for summary judgment, the defendants raise
several issues.
First, they contend that, to the extent Mr.
Williamson intends to name as a defendant the Scioto Township
Trustees, as a distinct entity, it has not been properly served
with process.
According to defendants, the Trustees (or perhaps
more accurately, the Board of Trustees), was not named as a
defendant in the original complaint filed in state court and,
therefore, was not served.
Rather, Mr. Williamson named Scioto
Township as a defendant in his original complaint but did not
name the [Board of] Trustees as a defendant until he filed his
amended complaint.
For these reasons, the defendants contend,
any claims against the Scioto Township Trustees, as a distinct
entity, should be dismissed.
With respect to the claims which defendants construe as
arising under federal law - unconstitutional culvert policy,
ratification, and abuse of office, - they contend that these
claims can arise only under 42 U.S.C. §1983 and, because they
were not raised until the first amended complaint was filed in
2013, they are barred by the applicable two-year statute of
limitations.
With respect to the ratification and abuse of
office claims, defendants also argue that these claims fail on
their merits - the former because Mr. Williamson is unable to
establish the elements of the claim and the latter because they
are entitled to legislative immunity.
With respect Mr. Williamson’s state law claims other than
the inverse condemnation claim, defendants assert that they are
immune from suit or that these claims fail on their merits.
With
respect to the inverse condemnation claim, defendants argue that
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the Court should dismiss this claim for lack of jurisdiction
because the claim is not ripe.
In response to defendants’ request for dismissal of the
[Board of] Trustees as a defendant, Mr. Williamson argues that
“‘Scioto Townhship’” has always been a party.
He interprets the
defendants’ argument as suggesting that he was required to name
all three trustees as defendants in order to have named Scioto
Township as a defendant.
Mr. Williamson explains his position as
follows:
It is the intent of Plaintiff simply to include
the township for injunctive relief and/or inverse
condemnation. Trustee Struckman and Trustee Brill were
named individually for violating Plaintiff’s rights.
In response to defendants’ statute of limitations argument
as it relates to the purported federal claims, Mr. Williamson
makes several statements which the Court will construe most
liberally as suggesting that these claims relate back to the date
of filing of the original complaint in the Common Pleas Court of
Pickaway County on August 25, 2010, and as a result, are not
time-barred.
Mr. Williamson also argues the merits of each of
his claims, both the purported federal claims and the state law
claims, in response to the motion for summary judgment.
His
arguments, as relevant here, are set forth in detail below.
In reply, defendants address the merits of Mr. Williamson’s
unconstitutional culvert policy as raised in the response.
According to defendants, Mr. Williamson has failed to provide any
admissible evidence in support of this claim.
Beyond this issue,
defendants reiterate many of the same arguments presented in
their motion.
V.
A.
Analysis
The Scioto Township Trustees
Turning first to the issue of whether the Board of Trustees
is a named defendant, based on Mr. Williamson’s representations,
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this issue does not require much discussion.
The Court concludes
from his response, as well as from its reading of the body of the
amended complaint which mentions only Scioto Township, that the
Scioto Township Trustees, as a distinct entity, is not intended
to be named as a defendant in this case.
Consequently, for
purposes of clarity, the Court will grant the motion for summary
judgment to the extent it seeks to dismiss the Scioto Township
Trustees, as an entity, as a defendant.
B.
The Unconstitutional Culvert Policy Claim
Turning to Mr. Williamson’s claim that Scioto Township
enforces an unconstitutional culvert installation policy, this
claim is stated in the first amended complaint as follows:
20. The township has a policy to place a culvert 14
feet off the roadway, notwithstanding such placement in
outside of its roadway easement.
21. The culvert was placed 14 feet off of the roadway
even though it was, or should have been, obvious that
such placement would be outside of the easement and
would cause a redirection of water into the existing
building.
22. The enactment of the policy and the following of
the policy were wilful, wanton and/or reckless acts
causing trespass, nuisance and in violation of the
Fifth Amendment taking property without just
compensation.
Although Mr. Williamson does not make any such reference in
his complaint, a claim alleging a constitutional violation by a
person acting under of state law must be brought pursuant to 42
U.S.C. §1983.
LaBorde v. City of Gahanna, 946 F.Supp.2d 725,
731 (S.D. Ohio 2013); see also Stebelton v. Bloom Tp. Bd. of
Zoning Appeals, 2010 WL 1629868, *2 (S.D. Ohio April 21, 2010).
Despite the language of this claim, Mr. Williamson has
represented to the Court that he is not pursuing a Fifth
Amendment claim for a taking without just compensation.
See
Preliminary Pretrial Order (Doc. 20) (“Plaintiff ... denied ever
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having made a Fifth Amendment takings claim).
Mr. Williamson’s
representation appears consistent with prevailing case law.
“The Fifth Amendment, made applicable to the States and
their subdivisions through the Fourteenth Amendment, provides
‘private property [shall not] be taken for public use, without
just compensation.’”
Searles v. Toledo Area Sanitary Dist., 2013
WL 3772481, *5 (N.D. Ohio July 16, 2013).
“To state a claim
under the Takings Clause that is ripe for federal court review,
Plaintiff must first demonstrate that state compensation
procedures, assuming they exist and are adequate, have been
exhausted.” Id., citing River City Capital, L.P. v. Bd. of Cty.
Comm’rs, Clermont Cty., Ohio, 491 F.3d 301, 306-09 (6th Cir.
2007).
As explained by the Court in Stebelton:
... A Fifth Amendment claim alleging a taking without
just compensation is not ripe for review until: “(1)
there has been a final decision by the relevant state
decisionmaker and (2) the property owner has utilized
appropriate state inverse condemnation procedure.”
Montgomery v. Carter County, Tenn., 226 F.3d 758, 765
(6th Cir. 2000)(citing Williamson County Reg’l Planning
Comm’n, 473 U.S. 172, 194, 105 S.Ct. 3108, 87 L.Ed.2d
126 (1985). A plaintiff must meet the second
requirement “only if a ‘reasonable, certain and
adequate provision for obtaining compensation’ exists
in the state.” Montgomery, 226 F.3d at 765 (quoting
Williamson County, 473 U.S. at 194). The second
requirement is necessary because “[t]he Fifth Amendment
does not proscribe the taking of property; it
proscribes taking without just compensation.”
Williamson County, 473 U.S. at 194. As a result, “no
constitutional violation occurs until just compensation
has been denied,” through, for example, a state’s
inverse condemnation procedures. Id. at 195 n. 13.
Ohio law allows a plaintiff to seek a writ of mandamus
“to compel public authorities to institute
appropriation proceedings where an involuntary taking
of private property is alleged.” State ex rel.
Preschool Development, Ltd. v. City of Springboro, 99
Ohio St.3d 347, 792 N.E.2d 721, 724 (Ohio 2003).
Id. at *3.
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Mr. Williamson’s representation that he is not pursuing a
takings claim also is consistent with the other allegations of
his amended complaint.
For example, he does not allege that he
has been denied just compensation through an inverse
condemnation, or similar procedure, in Ohio.
Rather, he asserts
an inverse condemnation claim in his amended complaint through
which he requests a writ of mandamus requiring the township to
institute appropriation proceedings.
See Amended Complaint,
¶¶35-39.
Because it is clear from both Mr. Williamson’s
representation and the amended complaint as drafted that he is
not pursuing a takings claim under §1983, the question becomes
what type of claim he is intending to pursue based on his
allegations of an unconstitutional culvert policy.
In his
response, Mr. Williamson provides some limited insight into his
intention.
The relevant discussion in his response is found at
pages two and three and states follows:
A Culvert is Required
Since Scioto Township is not a limited home rule
government, it has no authority to require a person to
obtain a permit from the township before installing a
driveway culvert, Ohio Attorney General Opinion 200209, reaffirmed by Ohio Attorney General Opinion 2011028 to Prosecutor Wolford in regard to the facts of
this case. Nevertheless, Scioto Township requires a
culvert to be installed when there is new construction.
(Plt. S.J. Exh. 3A). It must be installed 14 feet off
of the pavement, (Plt. S.J. Exh. 3B) which results in a
24 foot placement, despite the roadway easement being
only 20 feet. (Plt. S.J. Exh. 4).
Lack of an Adequate Permit Policy
The Township has two policies. The first is to
require anyone building a house to obtain a culvert
permit even though it is not needed. The second is to
install it 14 feet off the surface. As stated, a
“driveway” existed at the entrance of the outbuilding
which was also used as a driveway to and from the
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fields and new house that was constructed. There was
never a culvert under it. The township roadway rightof-way between the outbuilding and the paved portion of
the highway, at the driveway entrance and past the
driveway, was flat. There was no township ditch or
swale. Plaintiff could drive his car around the
outbuilding. The road water runoff ran into existing
farm field tile and did not pond. It never ponded
until after the culvert was installed and a new ditch
along the block building was dug. The block building
never suffered from standing water in it and cracking
until the “improvements” were made by Mr. Struckman.
The Township does not have a policy to ensure the
landowner controls the issuance of the permit. Even
though he had no contract, Mr. Reynolds without telling
Plaintiff, went to the township clerk and obtained a
culvert permit. He elected to have the Township
install it. The Township has no policy to verify
agency before issuance of a permit. It does not
require a permit application to be signed by the owner.
The application was not signed by Plaintiff. No
inquiry was made to the applicant, Mr. Reynolds, to
verify his right to apply on behalf of the owner. No
verification was made to the owner, even by a simple
phone call. No notice was given to the owner the
permit was issued. Plaintiff was unaware of the permit
until he complained. No notice is given of the date of
installation.
The Township does not have a policy to insure
proper installation. There is no policy: (1) to
address the fact that 24 feet is outside its easement,
(2) to pay compensation before the take, (3) to survey
to insure placement within the easement, (4) to have
construction drawings to address grade and proper
runoff and (5) to grant relief for mistake.
From this discussion in his response, Mr. Williamson appears
to be making two arguments - 1) Scioto Township was acting
outside its authority in enacting a policy requiring the
installation of culverts in private driveways along township
roads for a new build home and 2) the township’s policy allows
for the culvert installation to be completed without notice to
the property owner and then provides no recourse.
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As the Court
understands Mr. Williamson’s explanation, his claim is based on
two documents which he has submitted as exhibits to his response
and which he contends establish a township policy.
The first of
these documents provided by Mr. Williamson contains an effective
date of January 3, 1996, and states as follows:
Scioto Township - Pickaway County
Access Driveways - New Residential Properties
1.
2.
3.
4.
5.
Culverts should be made of either concrete or
galvanized pipe.
Culverts must be at least 30 feet long.
Culverts must be 12 inches or larger in
diameter.
If plastic culverts must be used, they must
be a minimum of 30 feet long and must be
covered with dirt 3 feet from each end. The
entire culvert must be covered to a depth of
at least 12 inches.
Township Trustees must be contacted for
inspection of the placement and length of the
culvert.
See Plaintiff’s Memorandum Contra (Doc. 40), Plt. S.J. 3A.
The second document provided by Mr. Williamson is entitled
“Guidelines for Driveway Culvert Installation” and notes an
effective date of April 2, 2010.
It contains twelve guidelines
including pipe and placement dimensions; a requirement that,
prior to the installation of the culvert pipe, the trustees be
contacted for placement and inspection; and a requirement that
the landowner or permit applicant provide the culvert pipe.
See
Plaintiff’s Memorandum Contra (Doc. 40), Plt. S.J. 3B.
Initially, the Court notes that neither of the documents
upon which Mr. Williamson relies is authenticated.
While
submissions “‘by a party opposing a motion for summary judgment
need not themselves be in a form that is admissible at trial,’
that party must ‘lay[] out enough evidence that will be
admissible at trial to demonstrate that a genuine issue on a
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material fact exists.’”
Reed v. Procter & Gamble Mfg. Co., 556
Fed.Appx. 421, 427 (6th Cir. 2014), quoting Alexander v.
CareSource, 576 F.3d 551, 558 (6th Cir. 2009); see also
Fed.R.Civ.P. 56 (c)(1)(A) & (4).
Consequently, “hearsay evidence
not subject to any exception “‘must be disregarded.’”
quoting Alexander, 567 F.3d at 558.
Id.,
For this reason,
“unauthenticated documents do not suffice.”
Id.
Here, Mr. Williamson failed to authenticate the documents
which he contends evidence Scioto Township’s policy regarding the
installation of driveway culverts for new build homes.
He has
provided no affidavit or deposition testimony from any individual
with personal knowledge addressing the existence or requirements
of such a policy.
Accordingly, the Court may decline to consider
these documents in opposition to the motion for summary judgment.
Id.
Without these documents, Mr. Williamson has failed to
demonstrate to the Court the existence or requirements of Scioto
Township’s culvert policy.
Absent such information, the Court
has no basis from which it could conclude that Mr. Williamson has
raised a genuine issue of material fact relating to the
constitutionality of the policy sufficient to withstand the
summary judgment motion.
For this reason alone, the defendants
are entitled to summary judgment on Mr. Williamson’s claim of an
unconstitutional culvert policy.
Further, even assuming the Court could consider these
documents as evidence of Scioto Township’s culvert policy, Mr.
Williamson cannot succeed on this claim for the following
reasons.
Taking Mr. Williamson’s second argument first, he seems
to be suggesting a procedural due process claim to the extent
that he contends that the culvert installation was performed
without notice to him and without an opportunity for him to
challenge its alleged improper installation resulting in the
deprivation of his property.
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When an individual is deprived of a protected property or
liberty interest, “procedural due process generally requires that
the state provide a person with notice and an opportunity to be
heard” before such deprivation occurs.
411 F.3d 697, 708 (6th Cir. 2005).
Warren v. City of Athens,
When a procedural due process
claim arises in connection with a takings claim, the Court of
Appeals has instructed that courts focus on the circumstances of
the specific case - and particularly the issue of when the
alleged injuries occurred - before deciding whether to apply the
requirement that state court remedies first be pursued as set
forth in Williamson County Regional Planning Commission v.
Hamilton Bank of Johnson City, 473 U.S. 172 (1985).
See Braun v.
Ann Arbor Charter Tp., 519 F.3d 564, 572 (6th Cir. 2008).
In order to determine whether a procedural due process claim
is distinct from a takings claim, the Court of Appeals has held
that a procedural due process claim is “‘instantly cognizable in
federal court without requiring a final decision.’”
Braun, 519
F.3d at 572, citing Nasierowski v. Sterling Heights, 949 F.2d 890
(6th Cir. 1991).
As the Court in Braun explained, in
Nasierowski, a landowner challenged the local government’s action
of rezoning his property without giving him notice of the change
or a hearing.
In that circumstance, the Court of Appeals found
that the due process claim was “instantly cognizable” because the
plaintiff was seeking the opportunity for a hearing and not a
determination that a taking occurred.
Id.
In Braun, however,
the Court concluded that the “thrust of the plaintiff’s due
process claim” was that the township’s refusal to rezone property
was a taking resulting from a particular policy bias and,
therefore, the procedural due process claim was subject to
Williamson County’s exhaustion requirement.
As the Braun Court
explained, “if the plaintiffs were to succeed in their statecourt takings claim, no procedural due process injury would
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likely exist.”
Id.
The Court looked to Bigelow v. Michigan
Dep’t of Natural Resources, 970 F.2d 154, 160 (6th Cir. 1992) to
further confirm why the procedural due process claim at issue was
subject to Williamson County’s exhaustion requirement:
Until the state courts have ruled on the
plaintiffs’ inverse condemnation claim, this court
cannot determine whether a taking has occurred, and
thus cannot address the procedural due process claim
with a full understanding of the relevant facts.
Furthermore, addressing the plaintiffs’ procedural due
process claim at this stage of the proceedings would
allow future plaintiff effectively to circumvent the
ripeness requirement for takings claims simply by
attaching a procedural due process claim to their
complaint.
Braun, 519 F.3d at 572.
Applying the concepts of Bigelow to the
case before it, the Braun court then stated:
Likewise, unless there is a taking in the instant case,
we are unable to say that the Township’s decision
resulted from bias potentially constituting a
procedural due process violation. Further, a ruling
that the plaintiffs’ procedural due process claim is
ripe would implicate our concern that a party could
easily bypass the Williamson County rule by attaching
an unclear and underdeveloped due process claim to a
takings claim. We therefore believe that the district
court’s conclusion that the district court’s conclusion
that the procedural due process claim is ancillary to
the takings claim is correct.
Id. at 572-73.
Here, Mr. Williamson’s first amended complaint sets forth a
claim for an unconstitutional culvert policy in terms of a Fifth
Amendment takings claim.
He has disavowed his intention to
assert such a claim here, however, perhaps in recognition of
Williamson County’s exhaustion requirement.
To the extent that
he is pursuing a procedural due process claim, the only basis for
such an interpretation of his claim is the limited discussion in
his summary judgment response.
The discussion does suggest a
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notice issue but certainly does not go so far as to request a
hearing.
In fact, the discussion in Mr. Williamson’s response
may well fit the Court of Appeals’ idea of an “unclear and
underdeveloped procedural due process claim” intended to bypass
the Williamson County rule.
Regardless, it seems reasonable to
conclude that, if Mr. Williamson were to succeed on his statecourt takings claim, no procedural due process claim would likely
exist under the circumstances of this case.
Consequently, the
procedural due process claim appears to be ancillary to a takings
claim.
However, even assuming that any due process claim is not
ancillary to a takings claim and, therefore, is ripe for review,
Mr. Williamson still cannot prevail.
As noted above, procedural
due process requires that the state provide a person with notice
and an opportunity to be heard before depriving that person of a
property or liberty interest.
Wedgewood Ltd. Partnership I. v.
Township of Liberty, Ohio, 456 F.Supp.2d 904, 934 (S.D. Ohio
2006); see also Thompson v. Ashe, 250 F.3d 399, 407 (6th Cir.
2001).
A plaintiff must demonstrate possession of a protected
property interest before a court will consider whether the
process provided, or lack thereof, violate plaintiff’s due
process rights.
(6th Cir. 2002).
Id., citing Hamilton v. Myers, 281 F.3d 520, 529
Property rights are created and defined by
independent sources such as state law and not by the
Constitution.
2002).
See Thomas v. Cohen, 304 F.3d 563, 576 (6th Cir.
As the Court of Appeals has explained, “[i]n order to
have a property interest in a benefit, a person must have more
than a desire for it or unilateral expectation of it; rather he
must have a ‘legitimate claim of entitlement to it.’”
Braun, 519
F.3d at 573, quoting R.S.W.W., Inc. v. City of Keego Harbor, 397
F.3d 427, 435 (6th Cir. 2005).
Further, there is no question
that the right to property “does not exist free from government
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intervention and regulation.”
Etzler v. City of Cincinnati,
Ohio, 2009 WL 3210337, *2 (S.D. Ohio September 30, 2009).
Here,
Mr. Williamson has not established any cognizable property right
triggering due process protections.
At best, the interest Mr.
Williamson claims, without any evidentiary support, seems to be
an interest in the use of his land free from any requirement to
install a driveway culvert for a new build home.
However, he has
not specifically identified this right or its source.
Because
Mr. Williamson has not done so, the Court is without any evidence
from which it could conclude that such a right exists.
Even if Mr. Williamson had an identifiable property
interest, he has not provided any evidence that he was denied
procedural due process in connection with the installation of the
culvert on his property.
As explained above, in looking at “what
process is due,” the state is generally required to give notice
and an opportunity to be heard prior to depriving a citizen of a
protected interest.
Thompson v. Ashe, 250 F.3d at 407.
A
procedural due process claim may be pursued under two theories.
That is, Mr. Williamson must establish either: “(1) that [he] was
deprived of a property interest as a result of an ‘established
state procedure’ which itself violates due process rights; or (2)
that the Township deprived [him] of a liberty or property
interest ‘pursuant to a random and unauthorized act’ and
available state remedies would not adequately compensate [him]
for the loss that [he] suffered.”
Wedgewood L.P.I. v. Twp. of
Liberty, 610 F.3d 340, 349-350 (6th Cir. 2010).
Mr. Williamson
has not met his burden under either prong.
First, Mr. Williamson has not provided proper evidence
demonstrating the substance of Scioto Township’s culvert policy.
To the extent that Mr. Williamson is suggesting that Scioto
Township has a policy of installing driveway culverts outside of
the easement and without the property owner’s knowledge, he has
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provided no support for this contention.
To the contrary, the
guidelines he has provided, to the extent that the Court may
properly consider them, assume the knowledge and active
participation of the property owner in the culvert installation
process.
Additionally, the permit application process itself
assumes the property owner’s knowledge given that it is an
affirmative, proactive process.
Moreover, according to the
driveway culvert permit application, applicants have the option
of assuming responsibility for the installation of the culvert
pipe themselves or requesting that the township install the
culvert pipe.
According to Mr. Williamson’s application, the
request was made that the Township perform the installation.
This is a far different scenario from that required to
demonstrate a due process violation.
Even construing all the
evidence in Mr. Williamson’s favor, there is no evidence from
which a trier of fact could conclude that Scioto Township has a
policy of unilaterally installing driveway culverts on private
property without the owner’s knowledge.
Consequently, Mr.
Williamson has failed to demonstrate the existence of a state
procedure which itself violates due process rights.
On the other hand, based on Mr. Williamson’s allegations
taken as a whole, it may be that he is contending that Scioto
Township deprived him of his property interest pursuant to a
random and unauthorized act - the improper installation of the
culvert on his property by a Township employee at the request of
an unauthorized representative purporting to act on Mr.
Williamson’s behalf in a way that impacted waterflow resulting in
damage to an outbuilding.
To the extent that Mr. Williamson may
be making such an argument, he has not demonstrated the
inadequacy of state postdeprivation remedies.
See Daily
Services, LLC v. Valentino, — F.3d —, 2014 WL 2883875, **12-13
(6th Cir. June 26, 2014)(explaining Sixth Circuit precedent
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under the doctrine of Parratt v. Taylor, 451 U.S. 527, 538
(1981), and acknowledging that in this Circuit, Parratt’s
postdeprivaton remedy analysis applies in cases where the
deprivation complained of is unpredictable and random).
As
previously noted, Ohio has “‘reasonable, certain and adequate
procedures’” for plaintiffs to pursue compensation for an
involuntary taking.
River City Capital, 491 F.3d at 307, quoting
Coles v. Granville, 448 F.3d 853, 865 (6th Cir. 2006).
Specifically, Ohio courts have “recognized mandamus as the
vehicle with which to contest an involuntary taking.”
Id.
As
discussed at length above, Mr. Williamson has neither pursued
this state remedy nor provided any evidence of its inadequacy.
Consequently, defendants are entitled to summary judgment to the
extent that Mr. Williamson’s claim could be construed as one for
a denial of procedural due process.
To the extent that Mr. Williamson may be asserting a
substantive due process claim, such a claim also fails.
As the
court in Shelton v. Twin Tp. Ohio, 2013 WL 1627345, *5 (S.D. Ohio
April 16, 2013) explained:
... Claims for violation of substantive due
process [] generally fall into two categories:
The first type includes claims asserting denial of a
right, privilege, or immunity secured by the
Constitution or by federal statute other than
procedural claims under ‘the Fourteenth Amendment
simpliciter.’
The other type of claim is directed at official acts
which may not occur regardless of the procedural
safeguards accompanying them. The test for substantive
due process claims of this type is whether the conduct
complained of ‘shocks the conscience’ of the court.
LRL Properteis v. Portage Metro Hous. Auth., 55 F.3d
1097, 1111 (6th Cir. 1995)(citing Mertik v. Blalock,
983 F.2d 1353 (6th Cir. 1993)). Therefore the right
asserted must be fundamental or the conduct must “shock
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the conscience.” EIS Props., LLC v. City of Toledo,
698 F.3d 845, 861 (6th Cir. 2012)(citing Valot v. S.E.
Local School Dist. Bd. Of Educ., 107 F.3d 1220, 1228
(6th Cir. 1997)( discussing substantive due-process
claims as falling “into two categories” (1)
deprivations of a particular constitutional guarantee;
and (2) actions that ‘shock the conscience.’”)).
With respect to the first prong, as already discussed, Mr.
Williamson has not demonstrated an interest from being free of a
requirement that driveway culverts be installed in connection
with the building of a new home.
Further, assuming there is any
identifiable property interest here, the Court cannot conclude
that Scioto Township’s installation of a culvert on Mr.
Williamson’s private property pursuant to established guidelines
and at the request of an individual purporting to be Mr.
Williamson’s representative shocks the conscience.
Consequently,
defendants are entitled to summary judgment to the extent that
Mr. Williamson’s claim could be construed as one for a violation
of his substantive due process rights.
Turning to Mr. Williamson’s remaining arguments, he contends
that Scioto Township acted outside its authority in instituting a
policy requiring driveway culverts for new build homes.
First,
as discussed above, Mr. Williamson has not provided any proper
evidence of the Township’s policy.
Similarly, he provides no
support for his conclusory statement that issuing such a policy
would be beyond the Township’s authority.
Further, Mr.
Williamson has provided no evidence to suggest that the Township
intended to install the driveway culvert on his property without
his knowledge.
Finally, to the extent that Mr. Williamson
suggests that Scioto Township is at fault because it does not
have a policy in place to prevent the situation which he alleges
occurred here - that someone posing as his representative
initiated the culvert installation process - any such claim does
not rise to a constitutional violation.
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C.
The Ratification Claim
In his amended complaint, Mr. Williamson designates his
sixth claim as one for ratification and pleads as follows:
41. The Township knowingly permitted Michael Struckman
to hold himself out as a trustee when he was not, to
interject himself into official business and to direct
township affairs, including the placement of the
culvert.
42. With full knowledge of Defendant Struckman’s
wrongful actions, the Township refused to countermand
them.
43. As a result, all actions of Struckman as road
worker were ratified.
In their motion for summary judgment, defendants assert that
Mr. Williamson has provided no evidence of Mr. Struckman’s
alleged wrongful acts.
With respect to the allegation that Mr.
Williamson improperly represented himself as a trustee,
defendants point to Mr. Williamson’s testimony that he was aware
that Mr. Struckman was not a trustee at the time of the culvert
installation.
See Williamson Depo. Vol. II, p. 126.
At all
other times relevant to the amended complaint, Mr. Struckman was
a trustee acting in his official capacity.
Affidavit, at ¶¶4-5.
See Struckman
Further, they contend that there is no
evidence that Mr. Struckman directed the placement of the culvert
on Mr. Williamson’s property.
They also assert that Mr.
Williamson has not indicated which method of ratification under
42 U.S.C. §1983 he is alleging applies here but that, regardless,
he has failed to establish the elements of either one.
In response, Mr. Williamson cites to the deposition
testimony of Scott Edwards, a neighbor, who testified that he
witnessed Mr. Struckman operating the backhoe during the culvert
installation.
See Edwards Depo., p. 6.
Beyond this, the
response offers nothing directed to the merits of this claim
other than a recitation of what Mr. Williamson characterizes as
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Mr. Struckman’s alleged “personal bad faith.”
Nowhere in Mr.
Williamson’s response is there an acknowledgment or discussion of
the elements of a ratification claim under 42 U.S.C. §1983.
A municipality is not liable for the conduct of its nonpolicy making employees who act contrary to the policies of the
municipality.
Cir. 2005).
Turner v. City of Taylor, 412 F.3d 629, 639 (6th
A municipality may be liable for the
unconstitutional decision of its policymaking employees, however,
if it ratifies those decisions.
485 U.S. 112, 127 (1988).
methods.
City of St. Louis v. Prapotnik,
Ratification can occur by one of two
The first method occurs when an individual with
policymaking authority issues a final decision affirming a
subordinate’s decision on the merits or otherwise and, as a
result, adopts it as municipal policy.
Id.
Under this scenario,
even if the municipality ratified the decision, a plaintiff still
must prove that the ratification was a “moving force” in causing
a constitutional violation.
Baker v. Union Tp., Ohio, 2013 WL
4502736, *22 (S.D. Ohio August 22, 2013), citing Feliciano v.
City of Cleveland, 988 F.2d 649, 656 (6th Cir. 1993).
However,
“[a] ‘single, isolated decision’ by a policymaker is insufficient
to demonstrate that a decision was the moving force behind a
constitutional violation.”
Id., quoting Williams v. Ellington,
936 F.2d 881, 884-85 (6th Cir. 1991).
Rather, the plaintiff must
show that there was a history or pattern of unconstitutional
decision-making by the policymakers.
Id.
The second method of ratification occurs when a policymaker
fails meaningfully to investigate the acts of the officer.
Baker, 2013 WL 4502736 at *23; see also Wright v. City of Canton,
138 F.Supp.2d 955, 966 (N.D. Ohio 2001); Leach v. Shelby Cnty.
Sheriff, 891 F.2d 1241, 1246-48 (6th Cir. 1989).
Failing
meaningfully to investigate may include the lack of any
investigation or an investigation that is not designed to uncover
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what actually happened.
Id.
Here, Mr. Williamson has provided no evidence addressed to
either of these methods of ratification.
He has not demonstrated
a history or pattern of unconstitutional decision-making by
Scioto Township.
Similarly, he has provided no evidence to
refute the evidence provided by defendants that an investigation
into the events surrounding the culvert installation was
conducted following Mr. Williamson’s bringing the issue to the
defendants’ attention.
See Motion for Summary Judgment (Doc.
29), Fleming Affidavit, Exhibits H, I and J.
All Mr. Williamson
has done is, at best, offer wholly conclusory allegations and
outright speculation.
This is insufficient to defeat a well-
supported motion for summary judgment.
Wildlife Fed’n, 497 U.S. 871 (1990).
Lujan v. National
Consequently, defendants
are entitled to summary judgment on Mr. Williamson’s ratification
claim.
D.
Abuse of Office Claim
Mr. Williamson’s seventh claim is characterized as an “abuse
of office” claim.
Although, again, Mr. Williamson does not
reference 42 U.S.C. §1983 in his amended complaint, he
represented to the Court that he is setting forth this claim
under 42 U.S.C. §1983.
See Preliminary Pretrial Order (Doc. 20)
(Plaintiff ... agrees that the amended complaint asserted a §1983
claim for abuse of office).
To the extent that such a claim
exists under 42 U.S.C. §1983, Mr. Williamson’s amended complaint
includes the following allegations:
45. Trustee Michael Struckman possesses personal
animosity and has engaged in a vendetta against
Plaintiff.
46. Trustee Struckman has an ego that will not
permit him to admit wrongdoing.
47. Trustee Struckman abused his public office
for his personal benefit with no benefit to the
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Township.
48. Trustee Struckman has shown personal bias by
telling Plaintiff that he did not want him there and he
did not want him to build his house there, and he
personally, opposed Plaintiff’s reasonable efforts to
resolve the problem. He is angry because Plaintiff
rents farmland to Keavin Hill against whom Struckman
holds a grudge.
49. Plaintiff and his counsel requested the
trustees to cease and desist the trespass and to abate
the nuisance, all to no avail.
50. Trustees Struckman and Brill ignored the
clear legal opinion of the county prosecutor and the
opinion of the Ohio Attorney General No. 2011-028 and
enforced and continue to enforce an unlawful and/or
unconstitutional township act and regulation.
51. Trustee Brill has abrogated his elected duty
to make an independent impartial government decision to
Struckman.
52. As a result, Struckman and Brill have abused
their power of office and cannot claim legislative
immunity.
53. The actions of Trustees Struckman and Brill
were willful, wanton and/or reckless, were malicious
entitling Plaintiff to punitive damages and attorneys’
fees.
In their motion for summary judgment, defendants contend
that they are entitled to legislative immunity on this claim.
According to defendants, they took any of the actions alleged by
Mr. Williamson solely in their legislative capacity as Trustees
and acted well within their legislative discretion.
In response, Mr. Williamson makes the following argument,
restated here exactly as it appears in his brief:
Legislative immunity is claimed for the Township’s
negative vote (not to remove the culvert). Legislative
immunity, derived from Ohio Constitution Art II Sec 12,
-23-
is not absolute immunity for all actions. Incorporated
Village of Hicksville v. Blakeslee, 103 Ohio St. 508
(1921), in the syllabus holds:
The members of a municipal counsel, when acting in
good faith, are exempt from individual liability for
the exercise of their legislative discretion in voting,
as such members of counsel, for or against any proposed
legislation before them for consideration. (emphasis
added).
U.S. Brewster, 408 U.S. 501 (1972) holds
legislative privilege does not extend to all conduct
related to the legislative process (In no case has this
Court ever treated the Clause as protecting all conduct
relating to the legislative process). Accord, City of
Dublin v. State of Ohio, 138 OhioApp3d 753.
Further, culvert installation is not a legislative
decision but an administrative decision based upon the
already passed ordinance and its removal is based upon
property law. Jaggers v. City of Alexandria, 6th Cir.
No. 08-5214, 2009 SL 233244 (2/2/2009)(Applying known
rules is more likely to be administrative)”.
Administrative discretionary functions are
entitled to qualified immunity and then only if
performed within their scope of their duties and taken
with a reasonable belief that they were lawful, Haskell
v. Washington Township, 864 F.2d 1266 (6th Cir. 1988).
That case also holds no absolute immunity for official
action in furtherance of personal as opposed to public
interests. Punitive damages can be recovered against
individual trustees who act in bad faith and who
intended to further personal interests, which, in that
case, were individual views as to abortion.
A vote on a plan that culverts were necessary for
a road project would be legislative. However,
installation and/or removal of a particular culvert is
enforcement of policy and directing the enforcement of
policy is an administrative act for which absolute
legislative immunity is not available, Chalker v.
Howland Twp. Bd. Trustees (1995) 74 Ohio Misc.2d 5.
Chalker addressed abating a nuisance by burning down
the house without notice and found that such action of
directing enforcement of laws and policies only against
-24-
one person was an administrative act for which
legislative immunity was not available.
In reply, defendants argue that Mr. Williamson has now
reframed the issue.
As defendants see it, the issue is whether
they possess the discretion to fail to second a motion to settle
Mr. Williamson’s claim and to vote to request a second legal
opinion.
The issue is not, from their perspective, about
enforcing a policy as Mr. Williamson now contends.
They argue
that they are entitled to absolute legislative immunity for
discretionary functions, regardless of their motive.
Alternatively, they assert that they are entitled to qualified
immunity if they were acting administratively within the scope of
their duties with a reasonable belief that they were acting
lawfully.
The Court notes, initially, that the bulk of the allegations
relating to this claim are nothing more than speculation.
The
only allegation about which there is any evidence of record is
contained in paragraph 50 of the amended complaint relating to
Mr. Brill’s and Mr. Struckman’s decision to seek a second opinion
rather than follow the advice of the county prosecutor.
This
event is reflected in the minutes from the Trustee meeting dated
June 2, 2010.
See Motion for Summary Judgment (Doc. 29), Fleming
Affidavit, Exhibit H.
The minutes state as follows:
Williamson/Countz Road - Sark read an update from the
Prosecutor regarding the placement of the driveway pipe
outside of the easement. Prosecutor opinion was since
the township incorrectly installed the culvert, it
should be removed/replaced by and at the township
expense. Brill stated that he spoke with Reynolds and
he confirmed that he was to have the driveway put in.
Struckman stated the township should leave the culvert
as it is. Brill stated if property owner wants the
culvert moved, it should be at his expense. Struckman
stated a violation letter should be sent for the second
driveway - without permit. Sark made a motion that the
township remove the 15" pipe and place a 12", per the
driveway culvert rules within the easement. Motion
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denied for lack of a second.
Further, the minutes of the meeting held July 7, 2010,
reflect the following See Fleming Affidavit, Exhibit I:
Williamson culvert - A letter was received from
Attorney Kinglsey (sic), attorney retained by Mr.
Williamson. Struckman stated that he contacted the
office of Loveland and Brosius for an opinion. Sark
responded that any outside attorney contact requires
the authorization of the Board. RESOLUTION 10-84.
Struckman made a motion with a second by Brill to have
matter handled by the offices of Loveland and Brosius.
Vote: Brill -yes, Struckman - yes, Sark - n. Motion
carried.
See also Fleming Affidavit, Exhibit J Resolution 10-84.
Defendants are correct that local legislative officials have
absolute immunity from §1983 claims arising out of their
legislative activities.
(1998).
Bogan v. Scott-Harris, 523 U.S. 44, 49
Legislative immunity applies to “all actions taken in
the sphere of legitimate legislative activity.”
Id. at 54.
Further, “[w]hether an act is legislative turns on the nature of
the act.”
Id.
The act of voting is a “quintessentially
legislative” activity.
Id. at 55.
Additionally, whether an act
is legislative is not dependent on the motive or intent of the
official performing it.
Id., citing Tenney v. Brandhove, 341
U.S. 367 (1951). However, “not every act requiring a vote is
necessarily entitled to absolute immunity.”
Shields v. Charter
Tp. of Comstock, 617 F.Supp.2d 606, 618 (W.D. Mich. 2009), citing
Abraham v. Pekarski, 728 F.2d 167, 174 (3d Cir. 1984).
In determining whether an act falls within the scope of
legitimate legislative activity courts focus on whether the acts
“‘were integral steps in the legislative process’” and whether
the actions were “‘legislative in substance.’”
Guindon v.
Township of Dundee, 2010 WL 5394992, *6 (E.D. Mich. December 23,
2010), quoting Brogan, 523 U.S. at 55-56.
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That is, courts
consider whether the actions “‘bore all the hallmarks of
traditional legislation,’ including whether they ‘reflected
discretionary, policymaking decisions implicating the budgetary
priorities’ of the government and the services the government
provides its constituents.”
56.
Id., quoting Brogan, 523 U.S. at 55-
Applying this standard, various activities have been found
to be legislative in form including holding investigative
hearings, voting for an ordinance or introducing a budget and
signing into law an ordinance, a legislative committee’s
“deliberative and communicative processes,” and a city council’s
exercise of its “investigatory power by presiding over a public
comment period.”
Id. (citing cases).
The Court of Appeals has
declined to extend absolute immunity beyond these circumstances
to administrative acts or to acts involving evidence of bad
faith.
Id. at *7.
Further, actions which single out specific
individuals and treat them differently from others are generally
viewed as administrative in nature.
See Cutting v. Muzzey, 724
F.2d 259, 261 (1st Cir. 1984)(discussing that if facts used in
decision making are more specific or relate to particular
individuals or situations, the decision is administrative).
In this case, it does not appear that the Trustees were
engaged in any of the activities described above typically found
to be purely legislative in nature.
While they voted to
authorize seeking an outside legal opinion relating to Mr.
Williamson’s issue, this is not the same as voting to enact an
ordinance - a clearly legislative function.
The other activity
at issue involved a decision not to second a motion thereby
preventing a vote from coming to the floor.
These activities
seem to be similar to those found by other courts to be
administrative in nature.
For example, in Guindon, the court
found that a delay in processing the plaintiff’s request for a
transfer of their property was an administrative act.
-27-
Further,
in Bryan v. City of Madison, 213 F.3d 267, 273 (5th Cir. 2000),
cited as support in Guindon, the court held that a mayor’s
decision to delay board approval of proposed development plans
was administrative in nature because “[t]he point at issue in
those meetings was specifically and particularly related to the
proposed development.”
For these reasons, and in light of the Court of Appeals’
limited expansion of the doctrine, the Court cannot conclude that
defendants are entitled to absolute legislative immunity for
their activities in failing to second a motion or in voting to
request a second legal opinion.
These activities appear to be
more reasonably construed as administrative in nature.
While
absolute legislative immunity may not apply here, for the reasons
stated below, defendants are entitled to qualified immunity for
these acts and any other administrative acts relating to the
application of the culvert policy to him alleged by Mr.
Williamson.
As the Court of Appeals recently explained in Guindon v.
Township of Dundee, Mich., 488 Fed.Appx. 27, 35 (6th Cir. 2012):
Public officials who perform discretionary duties
within the scope of their employment are “shielded from
liability for civil damages insofar as their conduct
does not violate clearly established statutory or
constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800
(1982). Qualified immunity is not a defense to
liability; it is an absolute immunity from suit.
Saucier v. Katz, 533 U.S. 194 (2001), overruled on
other grounds by Pearson v. Callahan, 555 U.S. 223
(2009). Once a defendant asserts the doctrine of
qualified immunity, the plaintiff bears the burden of
satisfying a strict two-part test. Barker v. Goodrich,
649 F.3d 428, 433 (6th Cir. 2011). The plaintiff must
show: (1) a violation of a constitutional right, and
(2) the right at issue was clearly established at the
time of the defendant’s alleged misconduct. Id. We
may address these tests in any order. Pearson v.
Callahan, 555 U.S. 223 (2009).
-28-
To find that a right is “clearly established,”
“the contours of the right must be sufficiently clear
that a reasonable official would understand that what
he is doing violates that right.” Leonard v. Robinson,
477 F.3d 347, 355 (6th Cir. 2007)(internal quotation
marks omitted). In the “light of pre-existing law[,]
the unlawfulness must be apparent.” Anderson v.
Creighton, 483 U.S. 635, 640 (1987).
Qualified immunity protects “all but the plainly
incompetent or those who knowingly violate the law.”
Malley v. Briggs, 475 U.S. 335, 341 (1986). The
Supreme Court has admonished lower courts “not to
define clearly established law at a high level of
generality.” Ashcroft v. al-Kidd, — U.S. —, 131 S.Ct.
2074, 2084 (2011).
Based on the record presented here, Mr. Williamson has
failed to establish the violation of any constitutional right
arising from either the Township’s alleged culvert policy or the
defendants’ decision to reject the prosecutor’s opinion and seek
an outside legal opinion.
Additionally, despite his numerous
allegations and lengthy argument, Mr. Williamson has failed to
come forward with any evidence of the defendants’ bad faith.
Consequently, defendants’ motion for summary judgment will be
granted on grounds of qualified immunity with respect to Mr.
Williamson’s abuse of office claim.
E.
State Law Claims
Because the Court has disposed of all of Mr. Williamson’s
federal claims in this order, the Court declines to exercise
supplemental jurisdiction over his state law claims pursuant to
28 U.S.C. 1367(c)(3).
Consequently, Mr. Williamson’s state
claims will be dismissed without prejudice.
United Mine Workers
of America v. Gibbs, 383 U.S. 715, 726 (1966) (“If the federal
claims are dismissed before trial ... the state law claims should
be dismissed as well.”); Brandenburg v. Housing Auth. of Irvine,
253 F.3d 891, 900 (6th Cir. 2001).
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V.
Conclusion
For the reasons set forth above, the motion for summary
judgment (Doc. 29) is granted.
Plaintiffs state law claims are
dismissed without prejudice.
/s/ Terence P. Kemp
United States Magistrate Judge
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