Fluharty et al v. City of Clarksburg

Filing 201

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS MOTIONS FOR SUMMARY JUDGMENT 158 , 160 , 162 , 164 , 166 , 168 , AND 170 , DENYING PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT 157 , AND DISMISSING CASE WITH PREJUDICE: The Court GRANTS all of the defendants motions for summary judgment on all claims, DENIES the plaintiffs motion for partial summary judgment, and DISMISSES this case WITH PREJUDICE. The Court directs the Clerk to enter a separate judgment order. Signed by District Judge Irene M. Keeley on 1/12/17. (jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

THOMAS H. FLUHARTY, in his
official capacity as Bankruptcy
Trustee, THOMAS J. JACQUEZ, and
DIANA R. JACQUEZ,
Plaintiffs,
v.

//

CIVIL ACTION NO. 1:14CV27
(Judge Keeley)

CITY OF CLARKSBURG, JAMES C. HUNT,
MARGARET H. BAILEY, MARTIN G. HOWE,
ADAM BARBERIO, H. KEITH KESLING, and
JONATHAN R. DAVIS,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 158, 160, 162, 164, 166, 168,
AND 170], DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT [DKT. NO. 157], AND DISMISSING CASE WITH PREJUDICE
Pending before the Court are competing motions for summary
judgment filed in this case. For the reasons that follow, the Court
GRANTS the defendants’ motions for summary judgment (Dkt. Nos. 158;
160; 162; 164; 166; 168; 170), DENIES the plaintiffs’ motion for
partial summary judgment (Dkt. No. 157), and DISMISSES this case
with prejudice.
I. BACKGROUND
On May 31, 2013, the plaintiffs, Thomas J. Jacquez (“Mr.
Jacquez”) and Diana R. Jacquez (“Mrs. Jacquez”) (collectively, the
“Jacquezes”), filed a petition for bankruptcy in the Northern
District of West Virginia, which identified as an asset a lawsuit

FLUHARTY, ET AL. V. CITY OF CLARKSBURG, ET AL.

1:14CV27

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 158, 160, 162, 164, 166, 168,
AND 170], DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT [DKT. NO. 157], AND DISMISSING CASE WITH PREJUDICE
against the City of Clarksburg (“City”) for wrongful seizure (No.
1:13-bk-686,

Dkt.

No.

1

at

13).

After

the

Bankruptcy

Court

appointed Thomas H. Fluharty (“Fluharty”) as trustee, he and the
Jacquezes filed this case on February 17, 2014 (Dkt. No. 1).
The Jacquezes owned a number of properties in the City, which
they rented to “largely low income, elderly and disabled tenants.”
(Dkt. No. 65 at 4). The complaint alleges that the City and its
employees amended and enforced its building code in violation of
West Virginia law and in a manner that deprived the Jacquezes of
their constitutional rights. Id. at 7. Moreover, they allege that
certain City employees, also defendants in this case, stood to
benefit financially and politically from the resulting unlawful
demolition of residential properties, including those owned by the
Jacquezes. Id. at 2.
A.

Factual Background
In 2000, the West Virginia Housing Development Fund (“WVHDF”)

allocated funding for a Demolition Loan Program (“DLP”) designed to
“provide municipalities with financial resources to demolish older,
residential rental properties, many of which were being subsidized
under

various

HUD

programs.”

Id.

2

at

13

(internal

quotation

FLUHARTY, ET AL. V. CITY OF CLARKSBURG, ET AL.

1:14CV27

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 158, 160, 162, 164, 166, 168,
AND 170], DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT [DKT. NO. 157], AND DISMISSING CASE WITH PREJUDICE
omitted). At that time, James C. Hunt (“Hunt”) was an elected
member of the City Council, Director of the DLP, and the WVHDF area
manager responsible for projects in the City. In the ensuing years,
he and City Manager Martin G. Howe (“Howe”) applied for and
received loans from WVHDF for the City totaling $1,450,000. Id. at
7, 15-16. In June 2001, the City assigned its loan obligations to
the Clarksburg Urban Renewal Authority (“CURA”); in turn, CURA
created the Urban Renewal Plan for Demolition of Dilapidated
Residential Structures for the City of Clarksburg (the “Urban
Renewal Plan”). Id. at 16.
The plaintiffs have alleged that, from 1990 to 2014, the City
amended and maintained its building code ordinances in a manner
that failed to comply with the West Virginia State Building Code.
The City brought about this nonconformity by (1) authorizing Howe,
rather than the City Council, to appoint members to the Building
Code Appeals Board (“BCAB”); (2) reducing the membership of BCAB
from five to three members; (3) granting building inspectors
unreasonable right of entry and inspection; (4) blocking the
opportunity for property owners to repair their properties while
under a demolition order; and (5) ceasing to give notice of the

3

FLUHARTY, ET AL. V. CITY OF CLARKSBURG, ET AL.

1:14CV27

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 158, 160, 162, 164, 166, 168,
AND 170], DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT [DKT. NO. 157], AND DISMISSING CASE WITH PREJUDICE
City’s right to file a lien against any property subject to code
enforcement action. Id. at 19.
According to the plaintiffs, the City’s code enforcement
employees were not trained, qualified, or certified in accord with
West Virginia law, a fact that should have been known to the
defendants. Between April 2010 and March 2013, building code
official

Adam

Barberio

(“Barberio”)

and

his

two

subordinate

building inspectors, H. Keith Kesling (“Kesling”) and Jonathan R.
Davis (“Davis”), issued various citations and notices to the
Jacquezes and condemned six of their properties. Allegedly, these
actions violated the State Building Code, and the defendants relied
on false and misleading claims of building code violations. Id. at
24.
B.

Related Proceedings
In December 2013 and January 2014, the Jacquezes and several

other

affected

property

owners

filed

complaints

against

the

defendants with the West Virginia State Fire Commission (“Fire
Commission”),

which

regulates

building

code

officials

and

inspectors and determines priority when a municipal ordinance
conflicts with the State Building Code. See W. Va. Code § 29-3-5b.

4

FLUHARTY, ET AL. V. CITY OF CLARKSBURG, ET AL.

1:14CV27

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 158, 160, 162, 164, 166, 168,
AND 170], DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT [DKT. NO. 157], AND DISMISSING CASE WITH PREJUDICE
In June 2014, the Fire Commission issued a “Consolidated Complaint
and Notice of Hearing” against the City, Barberio, Kesling, and
Davis (Dkt. No. 65 at 26).
The

Consolidated

Complaint

alleged

that

these

defendants

“knowingly utilized an unlawful building code, through the actions
of

unlawful

[building

code

officials],

to

selectively

target

specific properties and property owners, to divest them of real and
personal property without adequate due process of law”

(Dkt. No.

65-1 at 5). Additionally, the defendants “utilized the Clarksburg
building

code

program

to

directly

and/or

indirectly

enrich

themselves and others through the use of public funds and the
unlawful building code program.” Id.1
Shortly thereafter, the City fully adopted the State Building
Code, as the Fire Commission alleged was its duty (Dkt. No. 174-3
at 7). The individual defendants later agreed to entry of consent
orders in which they denied wrongdoing but voluntarily surrendered
their state certifications as Building Code inspectors (Dkt. No.
174-5 at 5). The City then obtained a writ of prohibition from the

1

The plaintiffs have adopted the Fire Commission’s
allegations of fact and conclusions of law in their second amended
complaint. (Dkt. No. 65 at 27).
5

FLUHARTY, ET AL. V. CITY OF CLARKSBURG, ET AL.

1:14CV27

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 158, 160, 162, 164, 166, 168,
AND 170], DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT [DKT. NO. 157], AND DISMISSING CASE WITH PREJUDICE
Circuit Court of Kanawha County on April 21, 2016, which declared
that the Fire Commission did not have jurisdiction to monitor the
City’s compliance with due process (Dkt. No. 174-5).
During the same time period, a plaintiff other than the
Jacquezes challenged the City’s compliance with the State Building
Code. In Old Home Properties, LLC v. City of Clarksburg, No. 140928, 2015 WL 7628719 (W. Va. 2015), the Supreme Court of Appeals
of West Virginia held that W. Va. Code § 29-3-5b(c) clearly
contemplates

that

municipalities

may

implement

more

stringent

standards than the State Building Code. It also reasoned that the
Fire

Commission,

not

the

courts,

should

determine

whether

ordinances impermissibly deviate from the State Building Code. Id.
at *13-*14. Moreover, it concluded that any procedural challenge to
the

City’s

ordinances,

which

were

enacted

in

2003

and

2009,

respectively, was barred by the doctrine of laches and public
policy. Id. at *4.
C.

Procedural Background
The plaintiffs filed this action on February 17, 2014 (Dkt.

No. 1). Their second amended complaint asserted five causes of
action (Dkt. No. 65), three of which involved claims arising under

6

FLUHARTY, ET AL. V. CITY OF CLARKSBURG, ET AL.

1:14CV27

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 158, 160, 162, 164, 166, 168,
AND 170], DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT [DKT. NO. 157], AND DISMISSING CASE WITH PREJUDICE
42 U.S.C. § 1983, but alleging different theories of liability.
These

included

municipal

liability

(“Count

One”);

official,

individual, and supervisory liability (“Count Two”); and conspiracy
liability (“Count Three”). Count Four alleged liability under the
Racketeer

Influenced

and

Corrupt

Organizations

Act

(“RICO”).

Finally, Count Five sought a declaratory judgment that “the amount
of $11,251.81 and any other sum assessed . . . for demolition
costs, assessments, and fines by Defendant Clarksburg is improper,
unlawful, and not due and owing.” Id. at 41.
On October 7, 2016, the parties stipulated to the dismissal of
Count Two as it related to the individual liability of defendants
Barberio, Kesling, and Davis, as well as the entirety of Count Four
(Dkt. No. 156). On October 8, 2016, the plaintiffs filed a motion
for partial summary judgment on Count One as it relates to the
Jacquezes’ demolished property formerly located on Hamill Avenue
(Dkt. No. 157). In the main, they contend that the defendants
deprived the Jacquezes of their procedural due process right to
notice and a hearing before a lien was imposed on the property for
costs incurred by the City to demolish it.

7

FLUHARTY, ET AL. V. CITY OF CLARKSBURG, ET AL.

1:14CV27

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 158, 160, 162, 164, 166, 168,
AND 170], DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT [DKT. NO. 157], AND DISMISSING CASE WITH PREJUDICE
On October 14, 2016, each of the defendants moved separately
for summary judgment on all of the plaintiffs’ claims (Dkt. Nos.
158; 160; 162; 164; 166; 168; 170). Among other things, they argue
that the statute of limitations bars this suit in its entirety, and
that the plaintiffs have not established a violation of their
constitutional rights.
II. LEGAL STANDARD
Summary
documents,

judgment

is

electronically

declarations,

appropriate

where

the

stored

information,

.

,

stipulations

.

.

admissions,

“depositions,
affidavits

or

interrogatory

answers, or other materials” establish that “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed R. Civ. P. 56(a), (c)(1)(A). When
ruling on a motion for summary judgment, the Court reviews all the
evidence “in the light most favorable” to the nonmoving party.
Providence Square Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846,
850 (4th Cir. 2000). The Court must avoid weighing the evidence or
determining

its

truth

and

limit

its

inquiry

solely

to

a

determination of whether genuine issues of triable fact exist.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

8

FLUHARTY, ET AL. V. CITY OF CLARKSBURG, ET AL.

1:14CV27

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 158, 160, 162, 164, 166, 168,
AND 170], DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT [DKT. NO. 157], AND DISMISSING CASE WITH PREJUDICE
The moving party bears the initial burden of informing the
Court

of

the

basis

for

the

motion

and

of

establishing

the

nonexistence of genuine issues of fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Once the moving party has made the
necessary showing, the non-moving party “must set forth specific
facts showing that there is a genuine issue for trial.” Anderson,
477 U.S. at 256 (internal quotation marks and citation omitted).
The “mere existence of a scintilla of evidence” favoring the nonmoving party will not prevent the entry of summary judgment; the
evidence

must

be

such

that

a

rational

trier

of

fact

could

reasonably find for the nonmoving party. Id. at 248–52.
III. APPLICABLE LAW
Title 42 U.S.C. § 1983 provides a remedy for those who suffer
a “deprivation of any rights, privileges, or immunities secured by
the Constitution and laws” by one acting “under color of any
statute, ordinance, regulation, custom, or usage, of any State.”
“The essential elements to be proved in any section 1983 action are
(1) that the defendant was acting under color of state law in the
actions

complained

plaintiff

of

a

of;

right,

and

(2)

privilege

that
or

the

defendant

immunity

secured

deprived
by

the

Constitution or laws of the United States.” Clark v. Link, 855 F.2d
9

FLUHARTY, ET AL. V. CITY OF CLARKSBURG, ET AL.

1:14CV27

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 158, 160, 162, 164, 166, 168,
AND 170], DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT [DKT. NO. 157], AND DISMISSING CASE WITH PREJUDICE
156, 161 (4th Cir. 1988) (citing Briley v. California, 564 F.2d
849, 853 (9th Cir. 1977)).
Section 1983 is available to plaintiffs even if they could
have sought vindication of their rights through the enforcement of
a

state

constitution

or

statute.

“The

federal

remedy

is

supplementary to the state remedy, and the latter need not be first
sought and refused before the federal one is invoked.” Zinermon v.
Burch, 494 U.S. 113, 124 (1990) (quoting Monroe v. Pape, 365 U.S.
167, 183 (1961)).
Pursuant to the Fourteenth Amendment, a State may not “deprive
any person of life, liberty or property, without due process of
law.” U.S. Const. amend. XIV § 2.2 A cognizable claim that one’s
due process rights have been violated depends first upon whether
one possessed a protected interest. See Mathews v. Eldridge, 424
U.S. 319, 332 (1976).

2

The plaintiffs alleged that Barbario, Kesling, and Davis
violated the Jacquezes’ Fourth Amendment rights by “enter[ing]
their properties without their consent using ‘search warrants’
issued by the municipal judge under Article 1705.04" (Dkt. No. 65
at 30). The only alleged instances fall outside the statutory
period. See W. Va. Code § 55-2-12. In addition, the plaintiffs
appear to have abandoned this claim (Dkt. No. 196 at 13).
10

FLUHARTY, ET AL. V. CITY OF CLARKSBURG, ET AL.

1:14CV27

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 158, 160, 162, 164, 166, 168,
AND 170], DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT [DKT. NO. 157], AND DISMISSING CASE WITH PREJUDICE
There

can

be

no

dispute

that

the

Jacquezes

have

a

constitutionally protected interest in their real property. The
“valuable rights of ownership” include “the right of sale, the
right of occupancy, the right to unrestricted use and enjoyment,
and the right to receive rents.” United States v. James Daniel Good
Real

Prop.,

temporary

or

510

U.S.

partial

43,

54

(1993).

impairments

to

In

addition,

property

“even

rights

the
that

attachments, liens, and similar encumbrances entail are sufficient
to merit due process protections.” See Connecticut v. Doehr, 501
U.S. 1, 12 (1991).
Whether the City and its employees complied with the West
Virginia Code or the State Building Code is not relevant to this
case. “[O]nce it is determined that the Due Process Clause applies,
‘the question remains what process is due.’ The answer to that
question is not to be found in” in state or local law. Cleveland
Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985) (internal
citation omitted). Due process requires that a deprivation of
property

“be

preceded

by

notice

and

opportunity

for

hearing

appropriate to the nature of the case.” Id. at 542 (quoting Mullane

11

FLUHARTY, ET AL. V. CITY OF CLARKSBURG, ET AL.

1:14CV27

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 158, 160, 162, 164, 166, 168,
AND 170], DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT [DKT. NO. 157], AND DISMISSING CASE WITH PREJUDICE
v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)).3 A
violation of the right to procedural due process “arises not upon
the occurrence of a deprivation but rather the failure of due
process in connection with the deprivation.” Snider Int’l Corp. v.
Town of Forest Heights, Md., 739 F.3d 140, 149 (4th Cir. 2014)
(citing Zinermon v. Burch, 494 U.S. 113, 125 (1990)).
“[D]ue process is flexible and calls for such procedural
protections as the particular situation demands.” Mathews, 424 U.S.
at 334. “The process due in any given instance is determined by
weighing ‘the private interest that will be affected by the
official action’ against the Government’s asserted interest.” Hamdi
v. Rumsfeld, 542 U.S. 507, 529 (2004) (quoting Mathews, 424 U.S. at
335). A number of factors affect this determination:
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

3

The Court perceives that the plaintiffs initially may have
been attempting to prove a claim of substantive due process. See
Sylvia Dev. Corp. v. Calvert Cty., Md., 48 F.3d 810, 827 (4th Cir.
1995). They allege to have been “targeted for arbitrary, unlawful
building code enforcement actions” (Dkt. No. 65 at 29-30). However,
at a hearing on January 6, 2017, the plaintiffs advised that they
no longer intended to pursue this claim (Dkt. No. 198).
12

FLUHARTY, ET AL. V. CITY OF CLARKSBURG, ET AL.

1:14CV27

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 158, 160, 162, 164, 166, 168,
AND 170], DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT [DKT. NO. 157], AND DISMISSING CASE WITH PREJUDICE
and the fiscal and administrative burdens that the
additional or substitute procedural requirements would
entail.
Mathews, 424 U.S. at 335.
Procedural due process thus entitles one to “notice reasonably
calculated, under all the circumstances, to apprise interested
parties

of

the

pendency

of

the

action

and

afford

them

an

opportunity to present their objections.” Jones v. Flowers, 547
U.S. 220, 226 (2006) (quoting Mullane, 339 U.S. at 314). “Failure
to give notice violates ‘the most rudimentary demands of due
process of law.’” Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80,
84 (1988) (citing Armstrong v. Manzo, 380 U.S. 545, 550 (1965)).
“The notice must be of such nature as reasonably to convey the
required information, and it must afford a reasonable time for
those interested to make their appearance,” but actual notice is
not

necessarily

required.

Mullane,

339

U.S.

at

314

(citing

Dusenbery v. United States, 534 U.S. 161, 170 (2002)).
“‘The fundamental requisite of due process of law is the
opportunity to be heard’ . . . ‘at a meaningful time and in a
meaningful manner.’” Goldberg v. Kelly, 397 U.S. 254, 267 (1970)
(quoting Armstrong, 380 at 552; Grannis v. Ordean, 234 U.S. 385,
394 (1914)). “An impartial decisionmaker is an essential element of
13

FLUHARTY, ET AL. V. CITY OF CLARKSBURG, ET AL.

1:14CV27

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 158, 160, 162, 164, 166, 168,
AND 170], DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT [DKT. NO. 157], AND DISMISSING CASE WITH PREJUDICE
due process.” Bowens v. N.C. Dep’t of Human Res., 710 F.2d 1015,
1020 (4th Cir. 1983). Administrative decisionmakers are entitled to
a presumption that they are honest and have integrity. Morris v.
City of Danville, Va., 744 F.2d 1041, 1044 (4th Cir. 1984). Actual
bias presents clear constitutional issues. In addition, courts must
also avoid the “probability of unfairness” that arises when an
adjudicator has a direct or indirect pecuniary interest in the
outcome. Withrow v. Larkin, 421 U.S. 35, 47 (1975); Gibson v.
Berryhill, 411 U.S. 564, 579 (1973).
IV. DISCUSSION
A.

Overview
The claims in this case arise from allegations brought before

West Virginia agencies and courts by both the plaintiffs and
parties to related cases, in which a consistent theme was the
City’s alleged failure to comply with West Virginia law (Dkt. Nos.
1-3; 65-1). In this case, the plaintiffs contend that the City’s
actions deprived them of due process (Dkt. No. 65 at 29-30).
Consequently, it is important to take note at the outset of the
well-established rule that a violation of state law cannot form the
basis of a § 1983 action. Clark, 855 F.2d at 161. In order to
succeed on their claims here, the plaintiffs must prove the
14

FLUHARTY, ET AL. V. CITY OF CLARKSBURG, ET AL.

1:14CV27

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 158, 160, 162, 164, 166, 168,
AND 170], DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT [DKT. NO. 157], AND DISMISSING CASE WITH PREJUDICE
violation

of a

federal

right.

Id.

The Constitution

does not

guarantee compliance with state law, but rather provides for a
baseline of procedural safeguards prior to property deprivation.
See Loudermill, 470 U.S. at 542; Mathews, 424 U.S. at 335.
The Jacquezes’ ownership interest in their real property
plainly entitled them to due process. James Daniel Good, 510 U.S.
at 54; Doehr, 501 U.S. at 12. Nonetheless, it is clear that most of
the

constitutional

violations

alleged

by

the

plaintiffs

fall

outside the applicable statute of limitations. Moreover, for those
actions that fall within the statutory period, the Jacquezes have
not met their burden to establish a dispute of material fact
regarding their due process and conspiracy allegations.
B.

Statute of Limitations
Section 1983 provides a federal cause of action, but it looks

to state law to establish the applicable statute of limitations.
See Wallace v. Kato, 549 U.S. 384, 387 (2007). Under West Virginia
Code § 55-2-12, the period within which to bring a claim for
personal

injury

is

two

years.4

4

“The

applicable

statute

of

In a brief footnote, the plaintiffs direct the Court’s
attention to W. Va. Code § 55-2-18(a), suggesting that they are
entitled to an additional year after their state court case against
the City was involuntarily dismissed on August 26, 2013 (Dkt. No.
15

FLUHARTY, ET AL. V. CITY OF CLARKSBURG, ET AL.

1:14CV27

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 158, 160, 162, 164, 166, 168,
AND 170], DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT [DKT. NO. 157], AND DISMISSING CASE WITH PREJUDICE
limitations begins to run once a claim accrues, and federal law
controls that determination.” A Society Without a Name v. Virginia,
655 F.3d 342, 348 (4th Cir. 2011) (citing Cox v. Stanton, 529 F.2d
47, 50 (4th Cir. 1975)).

176 at 15 n.2). That code section provides:
For a period of one year from the date of an order
dismissing an action or reversing a judgment, a party may
refile the action if the initial pleading was timely
filed and: (i) the action was involuntarily dismissed for
any reason not based upon the merits of the action; or
(ii) the judgment was reversed on a ground which does not
preclude a filing of new action for the same cause.
This “savings statute” should be liberally construed “to save one,
who has brought his suit within the time limited by law, from loss
of his right of action by reason of accident or inadvertance.”
Vincenzo v. AIG Ins. Servs., Inc., 288 Fed. App’x 875, 878 (4th
Cir. 2008) (quoting Tompkins v. Pac. Mut. Life Ins. Co., 44 S.E.
439, 441 (1903)). However, “a dismissal of an action which will
save a second action from the effects of a statute of limitations
must not be the result of voluntary action on the part of the
plaintiff, or must not amount to an abandonment of the action by
the plaintiff.” Dean v. Pilgrim’s Pride Corp., 395 F.3d 471, 476
(4th Cir. 2005) (quoting Henthorn v. Collins, 118 S.E.2d 358, 360
(W. Va. 1961)). The state case was dismissed from the active docket
for statistical purposes as a result of the Jacquezes’ voluntary
Chapter 7 bankruptcy filing, and pursuant to the dismissal order,
they were entitled to reinstate the case upon discharge (Dkt. No.
1-3). Instead, they chose to file this lawsuit (No. 1:13bk686, Dkt.
No. 23). Because those voluntary decisions amount to an abandonment
of the state case, they may not take advantage of the savings
statute. See Dean, 395 F.3d at 476.
16

FLUHARTY, ET AL. V. CITY OF CLARKSBURG, ET AL.

1:14CV27

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 158, 160, 162, 164, 166, 168,
AND 170], DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT [DKT. NO. 157], AND DISMISSING CASE WITH PREJUDICE
“A civil rights claim accrues when the plaintiff knows or has
reason to know of the injury which is the basis of the action.” Id.
(internal quotation omitted). This occurs “when the plaintiff
possesses

sufficient

facts

about

the

harm

done

to

him

that

reasonable inquiry will reveal his cause of action.” Nasim v.
Warden, Md. House of Corr., 64 F.3d 951, 955 (4th Cir. 1995) (en
banc). In other words, “a federal cause of action accrues upon
inquiry notice.” Id. If the common law provides a “distinctive
rule” other than this, a court must consider it. Owens v. Baltimore
City State’s Attorneys’ Office, 767 F.3d 379, 389 (4th Cir. 2014).5
As

this

Court

recently

discussed

in

Hall

v.

City

of

Clarksburg, the plaintiff may establish a continuing violation that
tolls the statute of limitations if “the unconstitutional or
illegal act was a fixed and continuing practice” that occurred “in

5

The plaintiffs point to the “distinctive rule” that a
litigant must exhaust his administrative remedies before proceeding
in court. Bank of Wheeling v. Morris Plan Bank & Trust Co., 183
S.E.2d 692 (W. Va. 1971). However, the Fire Commission does not
have jurisdiction to bring actions directly against a municipality
regarding its compliance with the strictures of due process (Dkt.
No. 174-5 at 11-12). The Fire Commission proceedings also cannot be
considered a part of the relevant “procedural safeguards built into
the
statutory
or
administrative
procedure
effecting
the
deprivation,” which the Court analyzes in a due process challenge.
Zinermon, 494 U.S. at 125-26.
17

FLUHARTY, ET AL. V. CITY OF CLARKSBURG, ET AL.

1:14CV27

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 158, 160, 162, 164, 166, 168,
AND 170], DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT [DKT. NO. 157], AND DISMISSING CASE WITH PREJUDICE
a series of separate acts.” No. 1:14cv90, 2016 WL 5680218 (quoting
A Society Without a Name, 655 F.3d at 348) (internal quotation
omitted). “The limitations period begins anew with each violation.”
Id. However, “continuing ill effects of an original violation . .
. do not constitute a continuing violation.” Id.
The critical issue here is when the plaintiffs knew or had
reason to know of their procedural due process claims. A Society
Without a Name, 655 F.3d at 348. Because this case was filed on
February

17,

2014

(Dkt.

No.

1),

the

statute

of

limitations

encompasses only those causes of action that accrued on or after
February 17, 2012. W. Va. Code § 55-2-12. Most of the alleged
wrongdoing in this case occurred prior to that date. The plaintiffs
reference code enforcement that the City carried out between April
14, 2010, and March 13, 2013 (Dkts. No. 65 at 20-22; 172-8). In
each instance that the Jacquezes allegedly were subject to code
enforcement activity and deprivation of property prior to February
17, 2012, they knew or had reason to know at the time of the
defendants’ actions of alleged deficiencies in the notice they
received or their opportunity to present objections.
Nonetheless, the plaintiffs argue that their due process cause
of action could not have accrued until later. This assertion is
18

FLUHARTY, ET AL. V. CITY OF CLARKSBURG, ET AL.

1:14CV27

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 158, 160, 162, 164, 166, 168,
AND 170], DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT [DKT. NO. 157], AND DISMISSING CASE WITH PREJUDICE
based

primarily

on

ancillary

state

proceedings

that

bear

no

relation to the constitutional sufficiency of the notice and
hearing procedure provided to them.6 Moreover, alleged violations
of state law, or when the plaintiffs knew about such violations,
simply have no effect on when a cause of action under § 1983
accrued.

The

constitutional

sufficiency

of

the

procedural

safeguards provided to the Jacquezes is not tied to compliance with
state law except in certain circumstances. Loudermill, 470 U.S. at
541; Jones v. Bd. of Governors, 704 F.2d 713, 717 (4th Cir. 1983).
The only relevant argument the plaintiffs have in this regard
is

that

they

had

no

reason

to

know

that

Ralph

Pederson

(“Pederson”), a BCAB member until 2011, had an alleged conflict of
interest related to his employment with the WVHDF (Dkt. No. 174 at
17). However, Mr. Jacquez testified that he first believed he had
been subjected to unlawful conduct when BCAB denied his Hamill
Avenue appeal in 2010 (Dkt. No. 175-1 at 2). That he chose not to

6

The plaintiffs argue that their due process cause of action
could not have accrued prior to a variety of dates tied to the
defendants’ compliance with state law, such as when Mr. Jacquez
filed his complaints with the Fire Commission, when the City fully
adopted the State Building Code, when the Fire Commission resolved
its complaint, or when Judge Bailey entered her Order Granting Writ
of Prohibition (Dkt. No. 176 at 7-10, 12-14).
19

FLUHARTY, ET AL. V. CITY OF CLARKSBURG, ET AL.

1:14CV27

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 158, 160, 162, 164, 166, 168,
AND 170], DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT [DKT. NO. 157], AND DISMISSING CASE WITH PREJUDICE
investigate the composition of BCAB until later does not obviate
the fact that he “possesse[d] sufficient facts about the harm done
to him that reasonable inquiry [would have] reveal[ed] his cause of
action.” Nasim, 64 F.3d at 955. Indeed, Mr. Jacquez knew “that he
ha[d] been hurt and who inflicted the injury.” Id.7 Therefore, in
the absence of any convincing argument to the contrary, the Court
finds that inquiry notice bars any due process claim regarding code
enforcement actions prior to February 17, 2012.
The following code enforcement actions took place within the
statutory period, on or after February 17, 2012 (Dkt. No. 65 at 2022; 172-8 at 12):

7

In any event, it is not clear that Pederson’s membership on
BCAB in 2010 would have made the Hamill Avenue hearing
constitutionally deficient. The plaintiffs have alleged that, at
the time he was a member of BCAB, Pedersen was also employed by the
WVHDF, which loaned money to the City for its demolition program
(Dkt. No. 65 at 15-16). Howe testified that Pedersen resigned from
BCAB after WVHDF raised concerns about a conflict of interest (Dkt.
No. 172-20). Despite this testimony, there is no evidence that
Pedersen stood to profit from the BCAB proceedings in which he was
involved. Unlike cases where the Supreme Court has expressed
concern, see Tumey v. Ohio, 273 U.S. 510 (1927), there is no
indication that affirming adverse code enforcement against the
Jacquezes would have resulted in direct or indirect pecuniary gain
such that ruling against the Jacquezes would be a “possible
temptation.” Caperton v. Massey Coal Co., Inc., 556 U.S. 868, 878
(2009) (quoting Ward v. Monroeville, 409 U.S. 57, 60 (1972)).
20

FLUHARTY, ET AL. V. CITY OF CLARKSBURG, ET AL.

1:14CV27

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 158, 160, 162, 164, 166, 168,
AND 170], DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT [DKT. NO. 157], AND DISMISSING CASE WITH PREJUDICE
•

February 17, 2012:

Notice to Show
Virginia Avenue;
Denham Street

Cause issued at 210
Citation at 123-125

•

February 21, 2012:

Notice of Violation at 446 Lee Avenue

•

February 27, 2012:

Demolition of 661 Mulberry Avenue

•

March 1, 2012:

Citation at 121-121 ½ Denham Street

•

March 19, 2012:

Demolition of 1513-1515 Hamill Avenue

•

April 2, 2012:

Invoice for the cost of demolishing 15131515 Hamill Avenue

•

March 13, 2013:

Notice of Violation and Condemnation
Order at 121-121 ½ Denham Street

These actions within the statutory period, however, are all
properly

characterized

as

the

ongoing

effect

of

alleged

insufficient procedure or unlawful ordinance amendment that took
place before February 17, 2012. First, the demolition of property
at Mulberry Avenue and Hamill Avenue, as well as the invoice for
costs of demolition associated with the property on Hamill Avenue,
are unquestionably the ongoing ill effects of alleged procedural
deficiencies in 2010. See A Society Without a Name, 655 F.3d at
348. Code enforcement action against the Mulberry Avenue property
included notices of violation and condemnation orders issued on
July 23 and August 31, 2010 (Dkt. No. 65 at 21). Although those
notices informed the Jacquezes of their right to appeal and how to
21

FLUHARTY, ET AL. V. CITY OF CLARKSBURG, ET AL.

1:14CV27

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 158, 160, 162, 164, 166, 168,
AND 170], DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT [DKT. NO. 157], AND DISMISSING CASE WITH PREJUDICE
pursue it,8 the Jacquezes

chose not to do so. Likewise, the

property on Hamill Avenue was the subject of citations, notices,
condemnation orders, and demolition orders in 2010. At that time,
Mr. Jacquez appealed to BCAB, which upheld the demolition order on
July 21, 2010 (Dkt. No. 172-12 at 24).
Moreover, when BCAB upheld the demolition order regarding the
Hamill Avenue property in 2010, the ordinances imposed a duty upon
the

Jacquezes

to

demolish

the

property

or

pay

the

costs

of

demolition (Dkt. No. 172-4 at 13). This included the City’s right
to place a lien on the property for monies expended in connection
with demolition. Id. Thus, the imposition of demolition costs in
2012 was the direct effect of BCAB’s final decision in 2010 that
the property should be demolished. The Jacquezes were indeed
entitled

to

receive

notice

and

a

hearing

regarding

this

deprivation, Doehr, 501 U.S. at 12, which they, in fact, did
receive (Dkt. No. 172-12).
The Jacquezes thus “possesse[d] sufficient facts about the
harm done . . . that reasonable inquiry” would have revealed their

8

The form notices of violation issued at Hamill Avenue during
that same time period are contained within the record and give such
notice of appeal rights (Dkt. No. 172-12).
22

FLUHARTY, ET AL. V. CITY OF CLARKSBURG, ET AL.

1:14CV27

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 158, 160, 162, 164, 166, 168,
AND 170], DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT [DKT. NO. 157], AND DISMISSING CASE WITH PREJUDICE
cause of action regarding Mulberry Avenue and Hamill Avenue prior
to the statutory period. Nasim, 64 F.3d at 955. They cannot
complain in 2014 about the sufficiency of procedures they were
provided in 2010, even if demolition or lien imposition occurred
later. See A Society Without a Name, 655 F.3d at 348.
Finally, any contention that the remaining citations, notices
of violation, or condemnation orders did not comply with state law
fails as an ongoing effect of the ordinance amendments that took
effect in 2009. See Hall, 2016 WL 5680218, at *5. Much like the
plaintiff in Hall, the Jacquezes were on constructive notice of the
amendments when enacted in 2009, and when the City thereafter took
adverse code enforcement action against them.
C.

Due Process Allegations
To the extent that notices and orders issued during the

statutory period may constitute new violations rather than ongoing
effects, the plaintiffs have failed to establish a violation of
their procedural due process rights. With the exception of the
argument that the Jacquezes did not receive due process prior to a
lien being imposed on their Hamill Avenue property, the Court has
had difficulty discerning due process allegations that are not
based solely on a violation of state law.
23

FLUHARTY, ET AL. V. CITY OF CLARKSBURG, ET AL.

1:14CV27

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 158, 160, 162, 164, 166, 168,
AND 170], DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT [DKT. NO. 157], AND DISMISSING CASE WITH PREJUDICE
Indeed, in response to the defendants’ assertions that there
is no evidence of a constitutional violation (Dkt. Nos. 159 at 21;
161 at 12-13; 163 at 9; 165 at 10; 167 at 17; 169 at 17; 171 at
16), the plaintiffs provide little support to the contrary.9 A
review of the notices, orders, and hearing procedures in the record
convinces

the

Court

that

the

City

provided

constitutionally

sufficient procedural safeguards.10

9

Rather, they ask the Court to apply “the well-recognized
doctrines of equitable and judicial estoppel” to the defendants’
claim that there is no evidence of wrongdoing (Dkt. No. 174 at 1114) (“[The defendants] should not be permitted to ‘play fast and
loose’ with the record in this case and in the case resulting from
the Consolidated Complaint.”). The Court, however, has been unable
to ascertain the extent of this argument, as the plaintiffs do not
point to any “false representation or a concealment of material
facts” that would necessitate the application of equitable
estoppel. See Syl. Pt. 3, Folio v. City of Clarksburg, 655 S.E.2d
143 (W. Va. 2007). Moreover, as to judicial estoppel, the Court has
not identified any clearly contrary positions taken by the
defendants. See Syl. Pt. 2, W. Va. Dept. of Transportation,
Division of Highways v. Robertson, 618 S.E.2d 506 (W. Va. 2005).
10

Although the record does not contain each of the City’s
alleged code enforcement actions against the Jacquezes’ property,
it does contain examples of each form at issue (Dkt. No. 172-12).
The Court considers the record to fairly represent City action
taken during the statutory period. Despite the City’s contention
that no constitutional violation has taken place, the plaintiffs
have not produced any additional documents (Dkt. No. 159 at 25).
Moreover, Kesling testified that the notices of violation in
particular did not change substantially over time (Dkt. No. 172-11
at 5-6).
24

FLUHARTY, ET AL. V. CITY OF CLARKSBURG, ET AL.

1:14CV27

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 158, 160, 162, 164, 166, 168,
AND 170], DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT [DKT. NO. 157], AND DISMISSING CASE WITH PREJUDICE
The City’s Office of Code Enforcement made use of forms when
it issued notices and orders to the Jacquezes.11 When the City
issued a citation, it was addressed to the owner or lessee and
included the property at issue, the charge against it, the code
violation alleged, and a time to appear in court (Dkt. No. 172-12
at 1). Likewise, the City’s notice of violation form contained
space to fill in the subject property’s location as well as the
name and address of the owner, lessee, or contractor to whom the
notice was being issued. The building inspector filling out the
form selected the type of “violation,” which included 1) working
without permits, 2) use and occupancy without inspection, 3) stop
work order, or 4) a violation of a city code. If the final option
was chosen, there were fields provided in which the inspector could
specify the code violation and provide additional comments. The
bottom of the form noted that a notice “issued pursuant to The
Building, Zoning or Property Maintenance Code is subject to appeal”

11

The plaintiffs allege that the City’s forms did not contain
all the information required by the State Building Code or even its
own Building Code (Dkt. No. 65 at 31). Except for circumstances not
applicable here, see Jones, 704 F.2d at 717, that fact is
irrelevant to whether the Jacquezes received due process.
25

FLUHARTY, ET AL. V. CITY OF CLARKSBURG, ET AL.

1:14CV27

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 158, 160, 162, 164, 166, 168,
AND 170], DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT [DKT. NO. 157], AND DISMISSING CASE WITH PREJUDICE
and directs the recipient to “[c]ontact the Building Inspection
office for procedure.” Id. at 4.
Condemnation or demolition orders issued by the City gave
brief reasons for the action, such as “dilapidated dwelling,”
“unsafe

dwelling,”

or

“structural

members

rotten.”

Both

condemnation and demolition orders also stated that the action was
subject

to

appeal

and

directed

the

recipient

to

contact

the

Building Inspection office. Id. at 5, 7.
After

receiving

these

communications

from

the

City,

the

Jacquezes were capable of contacting the Building Inspection office
or referencing the City’s Building Code. At the relevant time,
Building Code 1705.11 and 1720.05 allowed “[a]ny person aggrieved
by

a

decision

of

the

Building

Inspector

or

his

designated

representative” to appeal to the three-member BCAB within 20 days
of being served with a decision (Dkt. No. 172-4 at 13, 21). At the
hearing, parties were permitted to appear in person, by agent, or
by attorney. Id. at 21. BCAB had full authority to reverse, affirm,
or modify the decision being appealed. Id. If BCAB made a decision
adverse to the appellant, the Circuit Court of Harrison County had
jurisdiction to hear a challenge to BCAB’s decision. See W. Va.

26

FLUHARTY, ET AL. V. CITY OF CLARKSBURG, ET AL.

1:14CV27

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 158, 160, 162, 164, 166, 168,
AND 170], DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT [DKT. NO. 157], AND DISMISSING CASE WITH PREJUDICE
Code § 51-2-2; see also Green v. City of Clarksburg, No. 11-0421,
2011 WL 8197531, *1 (W. Va. 2011) (memorandum decision).
Here, the plaintiffs have failed to direct the Court to any
evidence that the Jacquezes did not receive the various notices and
orders issued against their properties. The City’s forms informed
the Jacquezes about the specific properties that were the subject
of code enforcement action, and identified the basic nature of
problems that the City alleged. This constituted “notice reasonably
calculated, under all the circumstances, to apprise” the Jacquezes
of the code enforcement action. Mullane, 339 U.S. at 314.
After reviewing the notices the Jacquezes received, the Court
is unable to conclude that they were not apprised of “the pendency
of the action.” Id. ; see also Lee v. City of Norfolk, 706 S.E.2d
330,

336-37

(Va.

2011).

In

addition,

the

hearing

procedure

described above provided the Jacquezes with “an opportunity to
present objections” to BCAB and to appeal its decision through the
court

system.

Mullane,

339

U.S.

314.

Whether

or

not

these

procedures satisfy the strictures of state law, they undoubtedly
suffice under the Constitution.12

12

This same conclusion obtains with regard to the general
procedures of the Notice to Show Cause issued on February 17, 2012,
27

FLUHARTY, ET AL. V. CITY OF CLARKSBURG, ET AL.

1:14CV27

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 158, 160, 162, 164, 166, 168,
AND 170], DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT [DKT. NO. 157], AND DISMISSING CASE WITH PREJUDICE
D.

§ 1983 Conspiracy
Finally,

even

if

the

plaintiffs

could

establish

a

constitutional violation, they have failed to meet their burden to
survive summary judgment on Count Three. In order to succeed on a
claim of civil conspiracy under § 1983, the plaintiffs “must
present evidence that the [defendants] acted jointly in concert and
that some overt act was done in furtherance of the conspiracy which
resulted in [plaintiffs’] deprivation of a constitutional right.”
Hinkle v. City of Clarksburg, 81 F.3d 416, 421 (4th Cir. 1996). On
summary judgment, “[t]he non-moving party may not ‘create genuine
issue of material fact through mere speculation or the building of
one inference upon another.’” Id. (quoting Beale v. Hardy, 769 F.2d

at the Jacquezes’ Virginia Avenue property (Dkt. No. 1-20). The
Notice informed Mr. Jacquez of a public nuisance petition filed
against him and Mrs. Jacquez, and it provided the time at which he
was required to appear before the City Council and contest the
allegations. Id. at 5. Mr. Jacquez did not appear before the City
Council, which ultimately decided to revoke his business license on
March 1, 2012 (Dkt. No. 1-23). Mr. Jacquez testified that he was
sick on that date, and there is a dispute concerning whether the
municipal clerk may have misrepresented that he would be able to
present objections at a later date if he decided not to attend
(Dkt. Nos. 174 at 20; 175 at 9). Ultimately, however, this dispute
is of no consequence, as the second amended complaint only alleges
damages as a result of the defendants’ deprivation of the
Jacquezes’ interest in their real property, not their business
license (Dkt. No. 65 at 32, 34, 35).
28

FLUHARTY, ET AL. V. CITY OF CLARKSBURG, ET AL.

1:14CV27

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 158, 160, 162, 164, 166, 168,
AND 170], DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT [DKT. NO. 157], AND DISMISSING CASE WITH PREJUDICE
213, 214 (4th Cir. 1985)). The plaintiffs have the burden to prove
the essential elements of their conspiracy claim, and at this
stage, they must present evidence permitting a rational trier of
fact to find that a conspiracy existed to deprive them of their
constitutional rights. Id.
The plaintiffs have failed to proffer even a scintilla of
actual evidence in support of their conspiracy allegations. See
Anderson,

477

U.S.

at

248-52.

For

instance,

they

offer

Mr.

Jacquez’s belief “that the individual defendants, together with the
Holyfields and Alastanos, were acting together as conspirators to
benefit from Clarksburg’s code enforcement” (Dkt. No. 174 at 19).
Mr. Jacquez testified that he believed neighboring property owners
had

complained

to

the

City

so

that

his

properties

would

be

condemned, and the neighbors could then obtain the lots (Dkt. No.
174-4 at 46-47). However, aside from the observation that his
properties and many others had been condemned as a part of an
effort to enforce Clarksburg’s ordinances, Mr. Jacquez was not
aware

of

any

conspiracy.

Id.

meetings
at

or

48-49.

concerted
The

efforts

plaintiffs

also

constituting
point

to

a

Fire

Commission investigator Joseph Stiles’ testimony that, based on a

29

FLUHARTY, ET AL. V. CITY OF CLARKSBURG, ET AL.

1:14CV27

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 158, 160, 162, 164, 166, 168,
AND 170], DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT [DKT. NO. 157], AND DISMISSING CASE WITH PREJUDICE
perceived concerted effort to demolish certain homes, a conspiracy
must have existed (Dkt. No. 161-1 at 10).
None of this is sufficient to support the “weighty burden”
that the plaintiffs must meet on summary judgment. See Hinkle, 81
F.3d at 421. Other than the circumstantial observations that some
residents wanted homes to be condemned, and that the City clearly
had a program in place to accomplish demolition of dilapidated
structures, no direct or compelling evidence was presented to
support the proposition that a meeting of the minds existed, much
less that the intention of that agreement was to deprive the
Jacquezes of their constitutional rights. The evidence relied on by
the plaintiffs “amounts to nothing more than rank speculation and
conjecture.

It

does

not

reveal

any

member

of

this

alleged

conspiracy possessed an intent to commit an unlawful objective.”
Id. at 422.
V. CONCLUSION
As discussed, the statute of limitations has run on the
plaintiffs’ claims. Moreover, the alleged constitutional violations
identified by the plaintiffs are without merit, and there is
insufficient evidence to establish that a conspiracy existed to
deprive them of their rights. Therefore, the Court GRANTS all of
30

FLUHARTY, ET AL. V. CITY OF CLARKSBURG, ET AL.

1:14CV27

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 158, 160, 162, 164, 166, 168,
AND 170], DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT [DKT. NO. 157], AND DISMISSING CASE WITH PREJUDICE
the defendants’ motions for summary judgment on all claims, DENIES
the plaintiffs’ motion for partial summary judgment, and DISMISSES
this case WITH PREJUDICE.
It is so ORDERED.
The Court DIRECTS the Clerk of Court to transmit copies of
this Order to counsel of record and to enter a separate judgment
order.
DATED: January 12 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

31