Driskill et al v. Rosenberg et al
Filing
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MEMORANDUM AND OPINION as set forth in following order. Signed by District Judge Thomas A Varlan on 4/29/11. (c/m)(ABF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
GENE DRISKILL,
THOMAS DRISKILL, JR., and
THOMAS DRISKILL, SR.,
)
)
)
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Plaintiffs,
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v.
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GRANT ROSENBERG, Director,
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Knox County Office of Neighborhoods, and
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MICHAEL R. RAGSDALE, Knox County Mayor, )
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Defendants.
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NO.: 3:10-CV-65
(VARLAN/SHIRLEY)
MEMORANDUM OPINION
This civil action is before the Court on Defendants’ Motion for Summary Judgment
[Doc. 22]. Plaintiffs have not filed a response, and the time for doing so has passed. See
E.D.TN. LR 7.1(a), 7.2. For the reasons explained herein, the Court will grant defendants’
motion.
I.
BACKGROUND
This action arises out of the towing of several vehicles from property owned by
Barbara and Gordon Kinter, husband and wife, located at 609 Corum Road, Knox County,
Tennessee on February 25, 2009 (the “subject property”) [Doc. 2]. The property is zoned as
agricultural under the Knox County Zoning Ordinance and consists of approximately four
acres [Doc. 23]. Plaintiffs’ complaint asserts claims for violation of civil rights and various
state tort claims [Doc. 2]. It names Grant Rosenberg (“Rosenberg”), Director of the Knox
County Office of Neighborhoods (the “Office of Neighborhoods”), and Michael R. Ragsdale
(“Ragsdale”), Knox County Mayor, as defendants [Id.].
On or before March 4, 2008, the Office of Neighborhoods received a complaint that
the subject property contained several inoperable vehicles [Doc. 23]. On or before March
18, 2008, employees of the Office of Neighborhoods investigated the complaint and observed
abandoned and inoperable vehicles on the subject property in an open field, which were
clearly visible from the public right of way and from the property adjacent to the subject
property [Id.]. Upon investigation, the Office of Neighborhoods determined that Gordon and
Barbara Kinter (the “Kinters”) owned the subject property [Id.]. On March 18, 2008, the
Office of Neighborhoods notified Gordon Kinter by mail that several inoperable vehicles
were being stored unlawfully on the subject property and ordered removal of the vehicles
pursuant to the Abandoned and Inoperable Vehicles Ordinance (the “Ordinance”) [Id.].
On April 15, 2008, Barbara Kinter filed an application for appeal of such order to the
Knox County Board of Zoning Appeals pursuant to Knox County Code § 62-368(b) on
behalf of herself and Gordon Kinter [Id.]. On May 28, 2008, the Board of Zoning Appeals
heard Mrs. Kinter’s application for appeal [Id.]. At the hearing, Mr. Kinter, Mrs. Kinter, and
defendant Rosenberg gave testimony [Id.]. After hearing the testimony, the Board of Zoning
Appeals denied the appeal [Id.]. No further appeal of that decision was taken [Id.].
Shortly after the May 28, 2008 Board of Zoning Appeals hearing, plaintiff Thomas
Driskill, Sr. (“Mr. Driskill”), the son of Barbara Kinter, contacted the Office of
Neighborhoods to request additional time to remove the vehicles and to otherwise bring the
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subject property into compliance with the Ordinance [Id.]. On or before October 21, 2008,
employees of the Office of Neighborhoods went to the subject property for the purpose of
determining whether Mr. Driskill had made any effort to remove the vehicles or otherwise
comply with the Ordinance [Id.]. While at the subject property, employees of the Office of
Neighborhoods posted a notice to remove on each of the vehicles and discussed what was
and was not in violation of the Ordinance with Mr. Driskill, Mr. Kinter, and Mrs. Kinter [Id.].
The notice to remove stated in part:
This vehicle is being considered abandoned or inoperable in violation of Knox
County Ordinance O-05-9-102. Unless this vehicle is removed within 30 days
from the date below, Knox County will remove and dispose of the vehicle at
the expense of the owner. Appeal of this order can be made to the Knox
County Board of Zoning Appeals 215-2325.
October 21, 2008.
[Id.]. No such appeal was taken [Id.].
On November 21, 2008, the Office of Neighborhoods returned to the subject property
to determine whether Mr. Driskill removed any of the vehicles [Id.]. The vehicles, however,
had not been removed [Id.].
On February 25, 2009, employees of the Office of Neighborhoods, with the aid of
Chestnut Street Towing Service, removed a portion of the vehicles from the subject property
pursuant to the Ordinance [Doc. 23]. Defendants assert that the vehicles were inoperable and
were not completely enclosed within a permanent or portable building consisting of a four
walls and a roof as required by Knox County Code § 62-366 [Doc. 23]. Plaintiffs, however,
allege that, at that time, Mr. Driskill had a fence around the vehicles, framed with used utility
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poles and sawmill red oak, but had not yet put up the galvanized sheet metal cover [Doc. 2].
Further, plaintiffs allege that a thirty-five foot section was “chopped out” of the fence so that
the Office of Neighborhoods could take eight of Mr. Driskill’s “best vehicles” [Id.].
Plaintiffs additionally assert that three antique Mercedes Benz vehicles and one antique 1982
Grumman K-Trans forty-foot bus, all of which were parked outside the fenced-in area, were
taken by the Office of Neighborhoods [Id.].
Defendants contend that none of the vehicles were antique motor vehicles [Doc. 23].
Plaintiffs, however, allege that, during defendant Rosenberg’s last visit to the subject
property, Mr. Driskill showed defendant Rosenberg a stack of antique and other tags for the
vehicles and explained to him that such had not been kept on the vehicles due to theft of car
parts and gasoline [Doc. 2].
Plaintiffs also allege that Mr. Driskill and the Kinters complained to defendant
Rosenberg for over eighteen months about an allegedly illegal junkyard and allegedly illegal
commercial garage located behind the Kinters’ home, but that such complaints were ignored
[Id.].
II.
ANALYSIS
A.
Standards of Review
1.
Pro Se Litigants
Plaintiffs are proceeding pro se in this matter. “[T]he allegations of a complaint
drafted by a pro se litigant are held to less stringent standards than formal pleadings drafted
by lawyers in the sense that a pro se complaint will be liberally construed in determining
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whether it fails to state a claim upon which relief could be granted.” Jourdan v. Jabe, 951
F.2d 108, 110 (6th Cir. 1991) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also
Haines v. Kerner, 404 U.S. 519, 520 (1972). The Court “must make a reasonable attempt
to read the pleadings of a pro se litigant to state a valid claim on which the plaintiff could
prevail, despite any failure to cite proper legal authority, any confusion of various legal
theories, any poor syntax and sentence construction, or any unfamiliarity with pleading
requirements. Wilder v. Guilford Pharm. Prods., Inc., No. 2:04-CV-1199, 2006 WL
1888757, at *8 (S.D. Ohio July 7, 2006) (citing Ashiegbu v. Purviance, 74 F. Supp. 2d 740,
749 (S.D.Ohio 1998)). “This standard does not mean, however, that pro se plaintiffs are
entitled to take every case to trial.” Id. (citation omitted). “Indeed, courts should not assume
the role of advocate for the pro se litigant.” Id. (citation omitted).
2.
Summary Judgment
Summary judgment under Federal Rule of Civil Procedure 56(c) is proper “if the
pleadings, the discovery and disclosure materials on file, and any affidavits show that there
is no genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c). The moving party bears the burden of establishing that
there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 330 n.2
(1986). Accordingly, the Court must view the facts and all inferences to be drawn therefrom
in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd., v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986); Burchett v. Kiefer, 310 F.3d 937, 942 (6th
Cir. 2002). The moving party may support the motion for summary judgment with affidavits
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or other proof or by exposing the lack of evidence on an issue for which the nonmoving party
will bear the burden of proof at trial. Celotex, 477 U.S. at 324-25. The nonmoving party
may not rest upon the pleadings but must go beyond the pleadings and “by affidavit or as
otherwise provided in this rule, must set forth specific facts showing that there is a genuine
issue for trial.” Fed. R. Civ. P. 56(e). See also Celotex, 477 U.S. at 323. To avoid summary
judgment, the nonmoving party “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586.
B.
Defendants’ Arguments Concerning Plaintiffs’ Federal Claims
Defendants assert that they each are entitled to qualified immunity because plaintiffs
cannot establish that their actions violated a clearly established constitutional right of which
a reasonable person would have known [Doc. 23]. Defendants further argue that plaintiffs
fail to present a genuine issue of material fact as to whether they were denied due process of
law or equal protection when the vehicles were removed from the subject property [Id.].
Because the Court finds that plaintiffs have failed to present a genuine issue of material fact
as to whether they were denied due process or equal protection, the Court declines to address
the question of qualified immunity.
The Court construes plaintiffs’ complaint as asserting violation of two constitutional
rights: procedural due process and equal protection. As discussed below, the Court finds
dismissal of each claim appropriate because, based upon the applicable law, the facts viewed
in the light most favorable to the plaintiff show that no constitutional violation has occurred.
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1.
Procedural Due Process Claim
Plaintiffs’ complaint appears to allege that the City is liable under 42 U.S.C. § 1983
for towing the vehicles without providing due process of law. To prevail on this claim, a §
1983 plaintiff must demonstrate that the property deprivation resulted from either: “(1) an
established state procedure that itself violates due process rights, or (2) a ‘random and
unauthorized act’ causing a loss for which available state remedies would not adequately
compensate the plaintiff.” Warren v. City of Athens, 411 F.3d 697, 709 (6th Cir. 2005)
(quoting Macene v. MJW, Inc., 951 F.2d 700, 706 (6th Cir. 1991)). In this case, plaintiffs
seem to be asserting a claim under the first scenario.
The Fourteenth Amendment provides, in part, that “[n]o State shall . . . deprive any
person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, §
1. Procedural due process generally 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. See,
e.g., Thompson v. Ashe, 250 F.3d 399, 407 (6th Cir. 2001) (“Courts have long recognized
that the Fourteenth Amendment requires that an individual who is deprived of an interest in
liberty or property be given notice and a hearing.”). Only after a plaintiff has met the burden
of demonstrating that he possessed a protected property or liberty interest and was deprived
of that interest will the Court consider whether the process provided the plaintiff in
conjunction with the deprivation, or lack thereof, violated his rights to due process.
Hamilton v. Myers, 281 F.3d 520, 529 (6th Cir. 2002).
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Because plaintiffs have a protected property interest in the vehicles at issue, see Price
v. City of Junction, 711 F.2d 582, 589 (5th Cir. 1983) (holding that “[w]hether a junk car has
little or great value, it is constitutionally protected property), the Court must determine
whether the deprivation of that interest contravened the notions of due process. Generally,
the process that is due before a property deprivation includes prior notice and an opportunity
for a predeprivation hearing. Harris v. City of Akron, 20 F.3d 1396, 1401 (6th Cir. 1994).
Determining what process is due requires a balancing of three factors:
First, the private interest that will be affected by the official action; second, the
risk of an erroneous deprivation of such interest through the procedures used,
and the probable value, if any, of additional or substitute procedural
safeguards; and finally, the Government’s interest, including the function
involved and the fiscal and administrative burdens that the additional or
substitute procedural requirements would entail.
Matthews v. Eldridge, 424 U.S. 319, 335 (1976).
With respect to the first factor, one district court in the Sixth Circuit has stated that
“[t]he uninterrupted use of one’s vehicle is a significant and substantial private interest.”
Harris v. Cnty. of Calhoun, 127 F. Supp. 2d 871, 876 (W.D. Mich. 2001) (citation omitted).
The vehicles at issue here, however, are inoperable, which leads the Court to the conclusion
that the deprivation of such works less harm than does the deprivation of a vehicle one uses
as a normal mode of transportation.
With respect to the second factor, that is, the risk of an erroneous deprivation of such
interest through the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards, the Court notes that the Ordinance provides:
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(a) Notice to remove. Upon failure of any owner of property within the limits
of the county to remove abandoned and inoperable vehicles as required in this
article, the county, acting through the sheriff's department or any appropriate
department as designated by the mayor, may serve a notice on the owner,
lessee, occupant or person having control of the property, notifying any of
them of the existence of the nuisance and ordering the person to remove the
vehicle from the property within 30 days of service of notice, and informing
the person of the time and place of the appeal to the board of zoning appeals.
Such notice shall be served by:
(1) Personally serving the notice on the owner, lessee, occupant or person
having control of such property;
(2) Mailing the notice to the last known address of the owner, lessee, occupant
or person having control of the property by certified mail; or
(3) Posting the notice on the vehicle or on the property on which the
abandoned, wrecked, dismantled, rusted, junked or inoperable motor vehicle
is found.
Service of notice by any of the methods listed in this subsection shall be due
notice within the meaning of this section.
If the person upon whom the notice to remove was served fails either to
remove the vehicle from the property within 30 days of service of the notice
or to appeal the order to the board of zoning appeals within the time provided
to appeal, the county may remedy the condition and abate the nuisance by
taking into custody the abandoned or inoperable vehicle.
(b) Appeal of order to remove. The owner, lessee, occupant or person having
control of the property who is aggrieved by the determination of the order of
the county may appeal to the board of zoning appeals by appearing before the
board at the time and place stated in the notice. The board shall hear and
determine the appeal as promptly as practicable but within 30 calendar days
of the filing of the appeal. The order of the county may be affirmed, reversed
or modified by an affirmative vote of the majority of the members of the
board. Unless it is made clear that the order is contrary to the provisions of this
article or other law or ordinance, or is arbitrary and constitutes an abuse of
discretion, the board shall affirm the order. An owner, agent or occupant who
fails, refuses or neglects to comply with the order shall be in violation of the
provisions of this article. Any party aggrieved by the action of the board may
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appeal the decision of the board as provided by law in the cases of certiorari.
If the owner or other person described shall fail to remedy such conditions
within the time prescribed by the board, the county may remedy the condition
and abate the nuisance by taking into custody the abandoned or inoperable
vehicle.
(c) Vehicles on private property without consent of property owner. If a motor
vehicle has remained on private property without the consent of the owner or
person in control of the property for more than 48 hours, the county may
remove the motor vehicle and dispose of it according to the procedure set forth
in this article.
(d) Right of entry. Whenever necessary to make an inspection to enforce any
of the provisions of this Code, or whenever the inspecting official has
reasonable cause to believe that there exists in any structure or upon any
premises any condition or code violation which constitutes a violation under
this part, the official may enter such structure or premises at all reasonable
times to inspect the same or to perform any duty imposed upon the official by
this Code. If such structure or premises are occupied, the official shall first
present proper credentials and request entry. If such structure or premises are
unoccupied, the official shall first make a reasonable effort to locate the owner
or other persons having charge or control of such and request entry. If entry is
refused, the official shall have recourse to every remedy provided by law to
secure entry.
Knox County Code § 62-368.
This procedure provides for notice and meaningful opportunity to be heard prior to
any vehicle being taken into custody. And here, there is no dispute that due notice and an
opportunity to be heard was provided. It is undisputed that the property owners, the Kinters,
received notice pursuant to § 62-368 over eleven months prior to the removal of the
vehicles.1 It also is undisputed that Mr. Driskill received personal notice that the vehicles
were in violation of the relevant law at least four months prior to the removal. Furthermore,
1
Although not a plaintiff, Mrs. Kinter took an appeal regarding this notice and lost.
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the Office of Neighborhoods posted notices on the vehicles and defendant Rosenberg went
to the subject property on at least three different occasions and was met there by Mr. Driskill
and the Kinters, during which time they discussed “what was and was not in violation of
Knox Co. Codes” [Doc. 2]. There also was an opportunity to be heard prior to the removal
of the vehicles by way of an appeal, but none of the plaintiffs took advantage of such
opportunity.
Finally, with respect to the third factor, the Court finds that the Ordinance advances
Knox County’s interest in towing inoperable and abandoned vehicles to abate a public
nuisance and to advance the county’s interest in public health and safety [See Doc. 23]. It
also serves to encourage vehicle owners to maintain the county’s appearance [Id.].
The Court notes here that, to the extent plaintiffs claim the vehicles were antique or
enclosed within an appropriate facility, the Court does not find such contentions with merit.2
Although plaintiffs allege certain of the cars are antique motor vehicles, they have not
responded to defendants’ assertions that they are not, nor have they provided the Court with
sufficient information to conclude that any of the vehicles meet the definition of “antique
2
The Ordinance does not apply to “any motor vehicle on private property which is not
visible from the street or from other public or private property, if the motor vehicle is completely
enclosed within a permanent or portable building consisting of four walls and a roof and which is
in compliance with all gas, plumbing, electrical, zoning and mechanical codes, and with the
Standard Building Code as adopted by the county[,]” and it is an affirmative defense for a violation
of the Ordinance if the inoperable vehicle is an antique motor vehicle. Knox County Code § 62-366.
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motor vehicle” set forth in Knox County Code § 62-366.3 In addition, the complaint itself
indicates that the vehicles were not enclosed within a permanent or portable building
consisting of four walls and a roof and which is in compliance with the relevant codes of
Knox County as required by Knox County Code § 62-366 [See Doc. 2 (indicating that some
of the vehicles were in a fenced-in area while some were outside such)].
In sum, considering these factors, the Court finds that plaintiffs have failed to present
a genuine issue of material fact as to whether they were afforded due process of law with
respect to the removal of the vehicles. The Ordinance provides for pre-deprivation notice,
which plaintiffs received, as well as a pre-deprivation opportunity to be heard, which was
never taken advantage of. Accordingly, summary judgment will be granted and plaintiffs’
due process claim will be dismissed. See Duffy v. City of Stanton, 423 F. Supp. 2d 683 (E.D.
Ky. 2006) (dismissing due process claim of city resident whose motor vehicles were removed
from property because they were in violation of city’s nuisance ordinance and zoning
ordinance).
3
An “antique motor vehicle” is defined as:
[A]ny motor vehicle over 25 years old which is owned solely as a collectors’ item
and is used for participation in club activities, exhibits, tours, parades and similar
uses, but in no event for general transportation, and which is registered as an antique
vehicle under applicable title and registration laws.
Knox County Code § 62-366.
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2.
Equal Protection Claim
As defendants indicate, plaintiffs appear to allege a claim under the Equal Protection
Clause of the Fourteenth Amendment on the basis that the law was enforced in a
discriminatory manner [See Docs. 2, 23]. An equal protection claim based upon selective
enforcement requires a plaintiff demonstrate the following three elements:
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.
Gardenhire v. Schubert, 205 F.3d 303, 319 (6th Cir. 2000) (quoting United States v.
Anderson, 923 F.2d 450, 453 (6th Cir. 1991)). In other words, plaintiffs are required to show
both a discriminatory purpose and a discriminatory effect. Gardenhire, 205 F.3d at 318. “A
claimant can demonstrate discriminatory effect by naming a similarly situated individual who
was not investigated.” Farm Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d
523, 534 (6th Cir. 2002). In short, although plaintiffs allege complaints were filed about an
“illegal junkyard and illegal commercial garage located behind [the Kinters’] home,” the
allegations set forth in plaintiffs’ complaint fail to meet these requirements. Accordingly,
plaintiffs’ equal protection claim will be dismissed.
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C.
State Tort Claims
Because the Court finds dismissal of plaintiffs’ federal claims appropriate, the Court
declines to exercise supplemental jurisdiction over plaintiffs’ state law claims. 28 U.S.C. §
1367. See Experimental Holdings, Inc. v. Farris, 503 F.3d 514, 521 (6th Cir. 2007)
(“Generally, once a federal court has dismissed a plaintiff’s federal law claim, it should not
reach state law claims.”) (citation omitted).
III.
CONCLUSION
For the foregoing reasons, the Court will GRANT Defendants’ Motion for Summary
Judgment [Doc. 22]. This case will be DISMISSED. The Clerk of the Court will be
DIRECTED to close this case.
ORDER ACCORDINGLY.
s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE
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