Vaduva v. City of Xenia, Ohioet al
Filing
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ENTRY AND ORDER denying 33 Plaintiff's Motion for Partial Summary Judgment; granting in part Defendant City of Xenia, Ohio's 34 Motion for Summary Judgment. The Court DISMISSES Vaduva's facial and as applied challenge to Xenia Co dified Ordinance § 648.12 for lack of standing. Vaduva's Motion for Partial Summary Judgment 33 is DENIED. The Court GRANTS Xenia's Motion for Summary Judgment 34 and DISMISSES all of Vaduva's remaining claims. This case shall be TERMINATED on the Courts docket. Signed by Judge Thomas M. Rose on 9-4-2018. (de)
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
VIRGIL VADUVA,
Plaintiff,
v.
CITY OF XENIA, OHIO, et al.,
Defendants.
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Case No. 3:17-cv-41
Judge Thomas M. Rose
ENTRY AND ORDER DENYING PLAINTIFF’S MOTION FOR PARTIAL
SUMMARY JUDGMENT (DOC. 33), GRANTING IN PART DEFENDANT
CITY OF XENIA, OHIO’S MOTION FOR SUMMARY JUDGMENT (DOC. 34),
AND TERMINATING CASE
This civil rights case arises out of the arrest of Plaintiff Virgil Vaduva (“Vaduva”) on
February 13, 2015 in Xenia, Ohio for violation of Xenia Codified Ordinance § 648.12, which
places restrictions on where individuals may engage in panhandling. Vaduva was cited with
panhandling within 20 feet of the City Hall building, a fourth-degree misdemeanor. A jury found
Vaduva guilty of violating the statute, a verdict that Vaduva appealed. On appeal, Vaduva
successfully argued that the Ordinance did not prohibit the solicitation of funds for the benefit of
others, i.e., charitable donations. State v. Vaduva, 2016-Ohio-3362, ¶ 23, 66 N.E.3d 212, 218.
The court of appeals vacated his conviction and remanded the matter to the trial court for a new
trial. On remand, however, the prosecutor dismissed the case against Vaduva.
Approximately eight months after the Ohio court of appeals’ decision, on February 9, 2017,
Vaduva brought this action under 42 U.S.C. § 1983 against Xenia and a number of its officials and
employees for alleged violations of his right to freedom of speech under the First and Fourteenth
Amendments. On motions directed to the pleadings, the Court dismissed all but Vaduva’s claims
against Xenia. (Doc. 28.) This case is now before the Court on Vaduva’s Motion for Partial
Summary Judgment (Doc. 33) and Xenia’s Motion for Summary Judgment (Doc. 34). Vaduva
seeks summary judgment against Xenia as to its liability under Section 1983 for violating his right
to freedom of speech. (Doc. 33 at 1.) Xenia seeks summary judgment against Vaduva on all of
his remaining claims. Both Motions are fully briefed and ripe for review. (Docs. 33, 36, 38; 34,
35, 37.)
For the reasons below, the Court finds that Vaduva lacks standing to assert his facial and
as applied challenge to Xenia’s panhandling ordinance; those claims are therefore dismissed and
Vaduva’s Motion for Partial Summary Judgment (Doc. 33) on those claims is DENIED. Vaduva
also fails to present evidence sufficient to create a genuine issue of material fact concerning his
failure-to-train, Equal Protection, and Due Process claims. Accordingly, Xenia’s Motion for
Summary Judgment (Doc. 34) as to those claims is GRANTED.
I.
BACKGROUND
As mentioned, this case arises out of Vaduva’s arrest for panhandling in violation of Xenia
Codified Ordinance § 648.12. That ordinance provides, in pertinent part:
(b) Panhandling restrictions and prohibitions. No person shall solicit for
panhandling in any of the following manners:
[. . .]
(13) Within 20 feet of the entrance or exit of any public facility;
[. . .]
(d) Penalty. Whoever violates this section is guilty of panhandling, a
misdemeanor of the fourth degree. Whoever violates this section three times or
more within one year is guilty of a third degree misdemeanor.
2
Xenia Cod. Ordinance § 648.12.
“Panhandling” under § 648.12 is defined as follows:
To request verbally, in writing, or by gesture or other actions, money, items of
value, a donation, or other personal financial assistance. Further, panhandling shall
include any request for a person to purchase an item for an amount that a reasonable
person would consider to be in excess of its value.
Xenia Cod. Ordinance § 604.01.
On February 13, 2015, Vaduva challenged the ordinance in front of Xenia City Hall by
asking for money from passersby for charity and using a sign that said “HELP THE POOR NEED
$ FOR FOOD.”
(Doc. 33 at 5, ¶ 5 (Vaduva’s statement of undisputed facts);
https:/vimeo.com/119646554.)
A video was made of this event, which can be viewed at
https:/vimeo.com/119646554. Xenia police officers met with Vaduva and explained that there
was an ordinance prohibiting his conduct. Vaduva replied that he believed the ordinance was
unconstitutional. The police officers left, but later returned and issued Vaduva a citation for
panhandling in violation of § 648.12(b)(13).
After a jury trial, Vaduva was convicted of violating § 648.12(b)(13) and sentenced to a
suspended thirty-day jail term on the condition that Vaduva completed 100 hours of community
service within 90 days and had no future violations within two years. State v. Vaduva, 2016Ohio-3362, ¶ 15, 66 N.E.3d 212, 216. The trial court also ordered Vaduva to pay a $500 fine and
court costs. Id.
As discussed in more detail below, on appeal, the Ohio Court of Appeals for the Second
District vacated Vaduva’s conviction and remanded the case for a new trial. On remand, the
prosecutor declined to re-try Vaduva for violation of § 648.12.
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II.
SUMMARY JUDGMENT STANDARD
Under Fed. R. Civ. P. 56(c), summary judgment “shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The moving party bears
the initial burden to inform the court of the basis for its motion and to identify the sections of the
pleadings, depositions, answers to interrogatories, and admissions on file, along with any affidavits
that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The adverse party then bears the burden to “set forth specific
facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986). However, “the mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.” Id. at 24 (emphasis in original).
In deciding a motion for summary judgment, the court should not weigh the evidence, make
credibility determinations, or judge the truth of the matter asserted, but it must draw all “justifiable
inferences” in the light most favorable to the non-movant. Weaver v. Shadoan, 340 F.3d 398, 405
(6th Cir. 2003) (citing Anderson, 477 U.S. at 255). This does not require the court to “wade
through and search the entire record for some specific facts that might support the nonmoving
party’s claim.” InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989), cert. denied,
494 U.S. 1091 (1990). In sum, based on the evidence called to the court’s attention, it must decide
whether reasonable jurors could find by a preponderance of the evidence that the nonmovant is
entitled to a verdict. Anderson, 477 U.S. at 252.
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III.
ANALYSIS
Liberally construed, Vaduva’s Complaint contains four claims against Xenia.
First,
Vaduva asserts that § 648.12 should be declared unconstitutional on its face and as applied. (Doc.
1 at 5-9.) Second, Vaduva alleges that Xenia violated his Fourteenth Amendment rights by failing
to train and supervise the police officers who arrested him pursuant to the unconstitutional policy
against panhandling set forth in § 648.12. Third, Vaduva alleges that Xenia selectively enforced
§ 648.12 against him in violation of the Equal Protection clause of the Fourteenth Amendment.
Fourth, and lastly, Vaduva alleges that Xenia deprived him of Due Process under the Fourteenth
Amendment.
The Court considers each of Vaduva’s claims in turn below.
A. Whether § 648.12 is Unconstitutional on its Face or as Applied
Before considering Vaduva’s claim that Xenia’s panhandling ordinance is unconstitutional,
the Court must address—based on its review of the undisputed facts—the issue of standing. “‘No
principle is more fundamental to the judiciary’s proper role in our system of government than the
constitutional limitation of federal-court jurisdiction to actual cases or controversies.’” Raines v.
Byrd, 521 U.S. 811, 818 (1997) (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426
U.S. 26, 37 (1976)). “[O]ne of the controlling elements in the definition of a case or controversy
under Article III” is standing. ASARCO Inc. v. Kadish, 490 U.S. 605, 613 (1989). Federal courts
“have an independent duty ‘to inquire sua sponte whenever a doubt arises as to the existence of
federal jurisdiction.’” Kentucky Press Ass’n, Inc. v. Kentucky, 454 F.3d 505, 508 (6th Cir. 2006)
(quoting Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 278 (1977)).
Pursuant to Article III, “a plaintiff must demonstrate standing for each claim he seeks to
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press.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008) (quoting DaimlerChrysler
Corp. v. Cuno, 547 U.S. 332, 335 (2006)); see also Phillips v. DeWine, 841 F.3d 405, 414 (6th
Cir. 2016), cert. denied sub nom. Tibbetts v. DeWine, 138 S. Ct. 301, 199 L. Ed. 2d 53 (2017);
Murray v. U.S. Dep’t of Treasury, 681 F.3d 744, 748 (6th Cir. 2012). To have standing, a plaintiff
must establish (1) an “injury in fact,” meaning “an invasion of a legally protected interest [that] is
(a) concrete and particularized and (b) ‘actual or imminent, not “conjectural” or “hypothetical”’”;
(2) “a causal connection between the injury and the conduct complained of,” i.e., the injury
complained of must be “fairly ... trace[able] to the challenged action of the defendant, and not ...
th[e] result [of] the independent action of some third party not before the court”; and (3) that it is
“‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable
decision.’” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (alterations in original) (citations
omitted). These elements are commonly referred to as the “injury-in-fact,” “causation,” and
“redressability” requirements. See Sprint Commc’ns Co., L.P. v. APCC Servs., Inc., 554 U.S.
269, 273 (2008).
“To establish standing for a free-speech claim, a plaintiff generally must show that ‘the
rule, policy or law in question has explicitly prohibited or proscribed conduct on the[ir] part.’”
DeWine, 841 F.3d at 414 (quoting Parsons v. U.S. Dep’t of Justice, 801 F.3d 701, 711 (6th Cir.
2015)). Typically, a statute must be enforced against the plaintiff before he may challenge its
constitutionality, but a pre-enforcement challenge may be permitted under certain circumstances
if “threatened enforcement [is] sufficiently imminent,” meaning there is a “a credible threat” that
the provision will be enforced against the plaintiff. Susan B. Anthony List v. Driehaus, –––U.S.
––––, 134 S.Ct. 2334, 2342, 189 L.Ed.2d 246 (2014).
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Here, Vaduva does not have standing to assert his challenge to the constitutionality of §
648.12 because it does not prohibit his conduct. Although Vaduva was convicted of panhandling
under § 648.12(b)(13), that conviction was reversed on appeal. Importantly, Vaduva’s conviction
was reversed because he successfully argued that, to qualify as “panhandling” under the definition
of that term in Xenia Codified Ordinance § 604.01, “an individual must request funds for his or
her personal use.”
Applying the rule of ejusdem generis, the court of appeals agreed and
construed the definition of “panhandling” “to require a request for money, items of value, or a
donation to be for the requestor’s personal use.” State v. Vaduva, 2016-Ohio-3362, ¶ 27, 66
N.E.3d 212, 218–19. The court of appeals further found that the trial court erred by providing
jury instructions that failed to inform the jury that it must find that Vaduva requested money for
his personal use in order to find he violated § 648.12. As a result, “the jury instructions essentially
omitted an element of the offense.” Id.
Under Ohio law, “a decision of a court of appeals constitutes conclusive evidence of the
law within its appellate district and, thus, binds the courts of common pleas within that district,
unless it is in conflict with a decision of the supreme court.” 23 Ohio Jur. 3d Courts and Judges
§ 388 (citing Hudson Distributors, Inc. v. Eli Lilly & Co., 4 Ohio Misc. 73, 33 Ohio Op. 2d 104,
209 N.E.2d 234 (C.P. 1965)). Since the reversal of Vaduva’s conviction was never appealed to
the Supreme Court of Ohio, the court of appeals’ interpretation of the definition of “panhandling”
is the law in the district. See also Cowen v. State, 101 Ohio St. 387, 397–98, 129 N.E. 719, 722
(1920) (“It is the right of the Legislature to enact laws, and the province of the court to construe
them.”)(internal quotation marks and citation omitted).
It is undisputed that Vaduva solicited money for charity, not for himself. He therefore did
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not engage in any conduct prohibited under § 648.12. Nor has Vaduva presented evidence that
he intends to request money, items of value, or a donation for his personal use where that conduct
is proscribed under § 648.12. To the extent that Vaduva intends to solicit funds for charity again
at Xenia City Hall, it is not prohibited by the ordinance and there is no evidence that the Xenia
police department would enforce the ordinance against him under those circumstances. The city
prosecutor’s decision not to pursue a new trial suggests the opposite; that the city understands that
the scope of the ordinance has been limited to exclude Vaduva’s conduct.
Vaduva claims a concrete injury meeting the first requirement of standing because he was
prosecuted under the panhandling ordinance. Due to the court of appeals’ narrow construction of
the definition of “panhandling”, however, that injury was not caused by the ordinance. Instead,
it was caused by a misapplication of the ordinance by law enforcement and the city prosecutor.
Vaduva therefore cannot establish the necessary causal connection to confer standing.
In
addition, Vaduva cannot satisfy the redressability requirement. If the Court were to find that §
648.12 were unconstitutional, it would not redress any injury or prospective injury to Vaduva.
The court of appeals already declared his conduct outside the ordinance’s prohibitions. With
respect to Vaduva’s conduct, a determination that § 648.12 is unconstitutional would be of no
consequence.
The fact that Vaduva seeks to challenge the ordinance on overbreadth grounds does not
change the analysis. It is correct that courts relax certain standing doctrines “because of the
potential for an unconstitutionally overbroad law to ‘chill’ protected speech—that is, the ‘judicial
prediction or assumption that the statute’s very existence may cause others before the court to
refrain from constitutionally protected speech or expression.’” DeWine, 841 F.3d at 417 (quoting
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Prime Media, Inc. v. City of Brentwood, 485 F.3d at 348) (internal quotes omitted). “But this
exception applies only to the prudential standing doctrines, such as the prohibition on third-party
standing, and not to those mandated by Article III itself . . .” Id. (citing Prime Media, 485 F.3d
at 350; Lujan, 504 U.S. at 560 (injury in fact, causation, and redressability form “the irreducible
constitutional minimum of standing”)). Notwithstanding the overbreadth doctrine, the standing
requirement is a constitutional mandate that is “absolute” and “irrevocable.” Prime Media, 485
F.3d at 349–50.
For the above reasons, the Court dismisses Vaduva’s challenge to the constitutionality of
Xenia Codified Ordinance § 648.12, both facially and as applied, for lack of standing.
B. Vaduva’s Monell Claim for Failure to Train or Supervise
Vaduva alleges that Xenia is liable for its failure to properly train or supervise its police
officers, which resulted in his unlawful arrest for panhandling under § 648.12. Under Monell v.
New York City Dept. of Social Services, 436 U.S. 658 (1978), a municipality may be held liable
for violation of a plaintiff’s civil rights “when execution of a government’s policy or custom,
whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury that the government as an entity is responsible for under § 1983.”
Monell, 436 U.S. at 694. The Sixth Circuit has stated that to satisfy the Monell requirements “a
plaintiff must ‘identify the policy, connect the policy to the city itself and show that the particular
injury was incurred because of the execution of that policy.” Garner v. Memphis Police Dep’t, 8
F.3d 358, 363-64 (6th Cir. 1993) (quoting Coogan v. City of Wixom, 820 F.2d 170, 176 (6th Cir.
1987)).
The Supreme Court has explained the factual allegations sufficient to prove a Monell claim
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based on the inadequacy of police training:
[T]he inadequacy of police training may serve as the basis for § 1983 liability only
where the failure to train amounts to deliberate indifference to the rights of persons
with whom the police come into contact .... Only where a municipality’s failure to
train its employees in a relevant respect evidences a “deliberate indifference” to the
rights of its inhabitants can such a shortcoming be properly thought of as a city
“policy or custom” that is actionable under § 1983.
City of Canton v. Harris, 489 U.S. 378, 388-89 (1989). The Supreme Court later elaborated on
what constitutes “deliberate indifference” in such cases:
“‘[D]eliberate indifference’ is a stringent standard of fault, requiring proof that a
municipal actor disregarded a known or obvious consequence of his action.” Bryan
Cty., 520 U.S., at 410, 117 S.Ct. 1382. Thus, when city policymakers are on actual
or constructive notice that a particular omission in their training program causes
city employees to violate citizens’ constitutional rights, the city may be deemed
deliberately indifferent if the policymakers choose to retain that program. Id., at
407, 117 S.Ct. 1382. The city’s “policy of inaction” in light of notice that its
program will cause constitutional violations “is the functional equivalent of a
decision by the city itself to violate the Constitution.” Canton, 489 U.S., at 395, 109
S.Ct. 1197 (O'Connor, J., concurring in part and dissenting in part).
Connick v. Thompson, 131 S. Ct. 1350, 1360 (2011).
Vaduva alleges that, by passing § 648.12, Xenia city officials enacted an unconstitutional
policy against panhandling, which they directed the police to enforce against Vaduva.
As
discussed, the court of appeals later excluded Vaduva’s conduct from the scope of the ordinance.
Vaduva has come forward with sufficient facts, however, for a reasonable juror to surmise that
Xenia had a policy against panhandling for oneself and for others, which it intended to enact in §
648.12 notwithstanding the court of appeals’ subsequent construction of the ordinance.
For Vaduva to withstand summary judgment, he also must present facts showing that Xenia
was deliberately indifferent to the violation of its citizens’ rights. Vaduva has not carried that
burden. The Court already determined that the police officers previously named in this suit were
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entitled to qualified immunity because they could not have been on notice that they were violating
any of Vaduva’s clearly established constitutional rights when they issued him a panhandling
citation. (Doc. 22 at 8.) The analysis in the Magistrate Judge’s decision, which this Court
adopted, noted the substantial differences between the authority relied on by Vaduva—Speet v.
Schuette, 726 F.3d 867 (2013)—and the ordinance at issue in this case. (Id. at 7-8.) The analysis
concluded that “while Vaduva cites authority clearly establishing the unconstitutionality of an
outright ban on panhandling on public premises, he cites no authority—and the Court has found
none—‘which would have put [Defendants] on notice that anti-solicitation provisions like the ones
at issue are unconstitutional.’” (Id. at 8 (quoting Dickey v. Charter Twp. of Canton, No. CV 1610118, 2017 WL 3765787, at *6 n.7 (E.D. Mich. July 24, 2017).) The determination that the officers
in this case are entitled to qualified immunity is not dispositive of whether Xenia may be liable for its
conduct. Nonetheless, the fact that the panhandling ordinance’s constitutionality could not have been
known to city officials is strong evidence that they could not have acted with deliberate indifference.
The additional facts that Vaduva relies on to show deliberate indifference are his assertion that
the Xenia City Council did not enact the ordinance to protect the “public health, safety, moral or general
welfare of the public” and that, on February 12, 2015, Vaduva himself informed the Xenia City Council
that the panhandling ordinance was unconstitutional and needed to be removed. (Doc. 33 at 5, 17; Doc.
35 at 9-10.)
Vaduva’s assertion regarding the motivation behind the ordinance is not supported by the
evidence. The minutes from the City Council meetings establish that public safety was a driving force
behind the enactment of § 648.12. One Councilman discussed his receipt of multiple reports that
residents, including children, were being harassed by panhandlers and had been approached by
panhandlers at ATMs. (Doc. 34-1 at PageID # 335). Vaduva admits, in his Opposition, that during
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the first reading of the ordinance on May 23, 2013, “Mr. Lewis ‘noted there were a number of
complaints from local businesses on individuals panhandling and harassing their customers outside
their businesses.’” (Doc. 35 at 5.) Vaduva likewise admits that, on the second reading of the
ordinance on June 13, 2013, a Councilman said that he “has had residents contact him about being
harassed at ATM’s and he has seen people panhandling from children in the parking lot of the karate
school he attends[.]” (Id.) These statements are direct evidence that public safety was a concern
driving the enactment of § 648.12.
Vaduva cites a Councilman’s statement, during the second reading, that “Being needy or
homeless is not an excuse to misbehave.” (Id., citing Doc. 34-1 at PageID# 383.) Vaduva argues
that this statement reveals that the ordinance was actually passed because “some people did not like
the homeless or needy exercising a constitutional right.”
(Id.)
Without more, however, this
statement does not support an inference of any bias against the poor. And, equally important, it does
not undercut or diminish the genuine safety concerns voiced at the readings. In addition, Xenia City
Council relied on their Law Director to draft the ordinance, who modeled it after similar ordinances in
Beavercreek and Fairborn, Ohio. (Id. at PageID# 355-56.) Prior to its passage, Xenia City Council
did not receive notice from any attorney or other legal expert that the ordinance would violate any
constitutional rights. (Id. at PageID# 335.) A reasonable juror could not find that Xenia City Council
enacted the panhandling ordinance without a genuine public safety purpose.
That Vaduva personally told the City Council that the ordinance was unconstitutional also is
not enough to establish deliberate indifference. One citizen complaint, although in earnest, is not
sufficient to put a City Council on notice of a constitutional issue. This is especially true where the
record does not contain any evidence regarding the education, background and experience that would
qualify the citizen as a constitutional expert or someone whose opinion on such topics should be given
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significant weight. The City Council Meeting Minutes indicate that Vaduva refused to give his
address before speaking, as required by Council rules, and then provided a false address. (Doc. 33-1
at PageID# 274.) This is the only background that the Council had about Vaduva according to the
Minutes. Although Vaduva does not mention them, two other citizens also spoke out that day against
the ordinance.
(Id. at PageID# 274-75.)
Both made moral, not constitutional, arguments for
reconsideration of the ordinance. Neither of them represented himself or herself to be an attorney or
legal expert.
For the above reasons, Vaduva has failed to create a genuine issue of material fact concerning
his ability to prove that Xenia acted with deliberate indifference to his constitutional rights in
enacting and enforcing § 648.12. Xenia is entitled to summary judgment on this claim.
C. Vaduva’s Equal Protection Claim for Selective Enforcement
In the Complaint, Vaduva alleges that Xenia violated the Equal Protection Clause by
prohibiting him from engaging in panhandling. (Doc. 1 at 7.) In his Opposition to Xenia’s
Motion for Summary Judgment, however, Vaduva argues that he was selectively prosecuted and
received a harsher sentence than other individuals in violation of his right to equal protection.
The Equal Protection Clause of the Fourteenth Amendment commands that no state shall
“deny to any person within its jurisdiction the equal protection of the laws.” U.S. CONST.
amend. XIV, § 1. The Supreme Court stated this language “embodies the general rule that States
must treat like cases alike but may treat unlike cases accordingly.” Vacco v. Quill, 521 U.S. 793,
799 (1997). An equal protection may be based on allegations that the state made a distinction
which ‘burden[ed] a fundamental right, target[ed] a suspect class, or intentionally treat[ed] one
differently from others similarly situated without any rational basis for the difference.’” Doe v.
Miami Univ., 882 F.3d 579, 595 (6th Cir. 2018) (quoting Radvansky v. City of Olmsted Falls, 395
13
F.3d 291, 312 (6th Cir. 2005)). In order to prevail on an equal protection claim, a plaintiff must
prove that the state “intentionally discriminated against the plaintiff because of membership in a
protected class.” Henry v. Metro. Sewer Dist., 922 F.2d 332, 341 (6th Cir. 1990).
Courts have developed the doctrine of “selective enforcement” to address the
discriminatory enforcement of an otherwise valid law in violation of an individual’s constitutional
rights.
Futernick v. Sumpter Township, 78 F.3d 1051, 1056 (6th Cir.1996).
“Selective
enforcement claims are judged according to ordinary Equal Protection standards, which require a
petitioner to show both a discriminatory purpose and a discriminatory effect.” Gardenhire v.
Schubert, 205 F.3d 303, 318 (6th Cir. 2000). The Sixth Circuit established a three-part test for
determining if selective enforcement has occurred:
First, [an official] must single out a person 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. Second, [the official] must initiate the
prosecution with a discriminatory purpose. Finally, the prosecution must have a
discriminatory effect on the group which the defendant belongs to.
United States v. Anderson, 923 F.2d 450, 453 (6th Cir.1991).
Vaduva argues that he was treated differently than four other people arrested for violation
of the panhandling ordinance. (Doc. 35 at 10, citing Doc. 33-1 at PageID# 298-317.) All four
were charged with a fourth-degree misdemeanor, as was Vaduva. One individual died, resulting
in the dismissal of the charges against her.
Two men had their charges reduced to minor
misdemeanors, with no fines or jail time imposed. One was assessed costs, but the other’s costs
were waived with a notation of indigency. Neither demanded a jury trial, however, unlike
Vaduva. (Doc. 33-1 at PageID# 300-02, 311 (withdrawing jury demand).) Vaduva notes that
one of the men obtained his reduced charge through a plea bargain, which is also unlike Vaduva.
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(Doc. 35 at 10.) The fourth individual was convicted of fourth-degree panhandling, just like
Vaduva, although she also did not demand a jury trial. Vaduva asserts that she did not receive
any jail time, but the records indicate that she was sentenced to 30 days of jail time with 27 days
suspended. (Doc. 33-1 at 305.) Vaduva received 30 days of jail time, all of which were
suspended on the condition that he complete 100 hours of community service.
Even if the Court were to accept that these individuals are similarly situated to Vaduva,
their records do not support an inference of discriminatory animus or that Vaduva was treated
differently without any rational basis. To the contrary, the sentencing of these four individuals
and Vaduva reflects a rational approach to sentencing. Obviously, dismissing misdemeanor
charges against the deceased is a rational allocation of prosecutorial resources.
The two
individuals who were convicted of reduced charges did not demand a jury trial. It is common
knowledge that a jury trial imposes a greater burden on the public, prosecutors and the court
system. Prosecutors therefore routinely offer incentives for criminal defendants to waive their
right to a jury, including the agreement to pursue a reduced charge. The only individual who was
charged with the same fourth-degree misdemeanor as Vaduva also received jail time, although was
ordered to serve three days whereas Vaduva received community service hours. Vaduva correctly
notes that none of the individuals received fines, whereas he was fined $500. However, the
records for the other three individuals indicate that they were indigent and homeless. Imposing a
fine on an individual who has no ability to pay is unlikely to serve any purpose. Again, it bears
repeating that none of them proceeded to a jury trial.
Vaduva also has not established his membership in a protected class. He suggests that he
was treated differently because he was not poor like the other three individuals. The financially
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able are not a suspect class under the Equal Protection Clause. Johnson v. Bredesen, 624 F.3d
742, 746 (6th Cir. 2010) (citing Papasan v. Allain, 478 U.S. 265, 283–84 (1986); Maher v. Roe,
432 U.S. 464, 470–71 (1977)). As already discussed, the evidence does not support Vaduva’s
contention that there was no rational basis for the city prosecutor’s sentencing approach.
Vaduva has not come forward with facts that could support a claim for violation of the
Equal Protection Clause. The Court therefore grants summary judgment for Xenia on this claim.
D. Vaduva’s Due Process Claim
It is not clear from the Complaint or Vaduva’s Opposition whether he asserts a substantive
or procedural claim under the Due Process Clause of the Fourteenth Amendment. Regardless, his
attempt to bring a triable claim under either theory fails.
The Fourteenth Amendment commands that “[n]o State shall ... deprive any person of life,
liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. In order to
establish a procedural due process claim, a plaintiff “‘must show that (1) he had a life, liberty, or
property interest protected by the Due Process Clause; (2) he was deprived of this protected
interest; and (3) the state did not afford him adequate procedural rights prior to depriving him of
the property interest.’” O’Neill v. Louisville/Jefferson Cnty. Metro Gov’t, 662 F.3d 723, 732 (6th
Cir. 2011) (quoting Waeschle v. Dragovic, 576 F.3d 539, 544 (6th Cir.2009)).
Vaduva neither alleged nor presented any evidence of a procedural due process claim.
The Complaint does not contain any allegations that he was denied a timely hearing or adequate
legal proceedings. He was provided a jury trial on the citation and successfully appealed his
conviction. There is simply no basis for a procedural due process claim.
Substantive due process is “the doctrine that governmental deprivations of life, liberty or
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property are subject to limitations regardless of the adequacy of the procedures employed has come
to be known as substantive due process.” Pearson v. City of Grand Blanc, 961 F.2d 1211, 1216
(6th Cir. 1992 (quoting Comment, Developments in the Law—The Constitution and the Family, 93
Harv.L.Rev. 1156, 1166 (1980)). Substantive due process claims are “loosely divided into two
categories: (1) deprivations of a particular constitutional guarantee; and (2) actions that shock the
conscience.” Valot v. Se. Local Sch. Dist. Bd. of Educ., 107 F.3d 1220, 1228 (6th Cir.1997)
(internal quotations and citations omitted). Notably, “a citizen ... does not suffer a constitutional
deprivation every time he or she is subjected to some form of harassment.” O'Connor v. Kelty,
No. 4:10 CV 338, 2013 WL 322199, at *7 (N.D. Ohio Jan. 24, 2013) (citing United States v.
Salerno, 481 U.S. 739, 833 (1987)). “Rather, the conduct must be so severe, so disproportionate
to the need presented, and such an abuse of authority as to transcend the bounds of ordinary tort
law and establish a deprivation of constitutional rights.” Id. (citing Salerno, 481 U.S. at 833).
Importantly, the United States Supreme Court has expressed its reluctance “to expand the
concept of substantive due process.” Cherry v. Howie, 191 F. Supp. 3d 707, 720 (W.D. Ky. 2016)
(citing Albright v. Oliver, 510 U.S. 266, 271–72 (1994)). Consequently, the Court has established
that “[w]here a particular Amendment provides an explicit textual source of constitutional
protection against a particular sort of government behavior, that Amendment, not the more
generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.”
Id. citing Albright, 510 U.S. at 273 (quoting Graham v. Connor, 490 U.S. 386, 395 (1989))
(internal quotation marks omitted).
The First Amendment explicitly protects Vaduva’s freedom of speech. Therefore, he
cannot seek relief for the violation of that right under the doctrine of substantive due process.
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Vaduva also fails to cite any conduct by city officials or the arresting officers that shocks the
conscience. Accordingly, he cannot establish a claim for violation of substantive due process.
IV.
CONCLUSION
For the reasons above, the Court DISMISSES Vaduva’s facial and as applied challenge to
Xenia Codified Ordinance § 648.12 for lack of standing. Vaduva’s Motion for Partial Summary
Judgment (Doc. 33) is accordingly DENIED. The Court GRANTS Xenia’s Motion for Summary
Judgment (Doc. 34) and DISMISSES all of Vaduva’s remaining claims. This case shall be
TERMINATED on the Court’s docket.
DONE and ORDERED in Dayton, Ohio, this Tuesday, September 4, 2018.
s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE
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