Lymer et al v. The City of Clarksburg
Filing
23
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT: It is ORDERED that Defendant's 19 Motion for Summary Judgment is hereby GRANTED and this case is DISMISSED WITH PREJUDICE and STRICKEN from the active docket. The Clerk is DIRECTED to enter a separate judgment order. Signed by District Judge Irene M. Keeley on 3/10/17. (cnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TINA LYMER and
WILLIAM LYMER,
PlaintiffS,
v.
//
CIVIL ACTION NO. 1:15CV136
(Judge Keeley)
THE CITY OF CLARKSBURG,
Defendant.
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 19]
Pending before the Court is the motion for summary judgment
filed by the defendant, the City of Clarksburg (“Clarksburg” or
“the City”) (dkt. no. 19). For the reasons that follow, the Court
GRANTS the motion and DISMISSES this case WITH PREJUDICE.
I. BACKGROUND
Tina Lymer and William Lymer (“the Lymers”) purchased property
located at 420 Stealey Avenue in Clarksburg, West Virginia (“the
property” or “the structure”) from Mrs. Lymer’s parents on November
6, 1992. The home has been Mrs. Lymer’s residence since her parents
purchased it in 1967.
The Lymers allege that the City adopted the State Building
Code in 2003, and that West Virginia law requires municipalities to
comply strictly with and adhere to the Code. They further allege
that the City knowingly, intentionally, and unlawfully amended the
Code in 2009 to remove certain mandated safeguards, which made it
reasonably foreseeable that the Lymers’ rights would be violated.
LYMER v. CITY OF CLARKSBURG
1:15CV136
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 19]
The alleged wrongful conduct began on February 15, 2013, when
two
of
Clarksburg’s
Code
Enforcement
Officers,
Keith
Kesling
(“Kesling”) and Jonathan Davis (“Davis”), served a Notice of
Violation (“NOV”) on the Lymers that related to the condition of
the property. The NOV cited various sections of the Code, noted
that the structure was unsafe and dangerous to occupants, and
stated that it was condemned with “Demolition Order status.”
Furthermore,
the
Officers
served
the
Lymers
with
a
document
entitled “Condemnation and Demolition Order,” which declared the
structure unfit for human occupancy and ordered that it be vacated
by May 1, 2015.
As alleged in the complaint, when the Officers served him with
the order, Mr. Lymer questioned them about what work he would need
to complete in order to remove the condemnation and demolition
order. Officer Kesling informed Mr. Lymer that, because he was
disabled, the City would not allow him to work on the property, and
the only way he could reverse the order was through an appeal to
the
Clarksburg
Building
Code
Appeals
Board
(“BCAB”).
As
a
consequence, the Lymers complied with the order and vacated their
home,
which,
as
a
result
of
its
vacancy,
has
deteriorated
considerably.
On July 18, 2013, the City adopted a “Resolution Declaring
2
LYMER v. CITY OF CLARKSBURG
1:15CV136
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 19]
Certain Areas of the City of Clarksburg to be Slum or Blighted
Areas.” (Dkt. No. 1-1 at 16). Attached to that Resolution was a
list of properties that had received demolition orders, including
the Lymers’ property. (Dkt. No. 1-1 at 17).
The instant lawsuit seeks damages arising out of the City’s
determination that the Lymers’ home should be declared “slum or
blight” and thereafter be demolished and removed. The City’s
determination, set forth in the Resolution, was based on findings
of Clarksburg’s Code Enforcement Office, an entity that the Lymers
contend
was
staffed
with
unqualified
and
uncertified
code
inspectors operating under an improperly adopted and implemented
municipal building code.
Further, the Lymers allege that the improper building code
failed to give aggrieved individuals an adequate means to appeal
the Code Enforcement Office’s determinations. The Lymers claim that
they were deprived of their rights under the Fourth, Fifth, and
Fourteenth Amendments to the Constitution of the United States.
Specifically, they allege that Clarksburg deprived them of liberty
and property without due process of law, and took their property
without just compensation.
The Lymers’ complaint includes six counts. Counts I through IV
3
LYMER v. CITY OF CLARKSBURG
1:15CV136
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 19]
are based on civil rights violations under 42 U.S.C. § 1983. Count
I asserts liability of the City as a municipal corporation pursuant
to Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). Count II
asserts general claims that the City knew or should have known that
its building code was improper. Count III claims that the City knew
or should have known that its code officials were not properly
trained, qualified, or certified. Count IV claims the City deprived
the Lymers of constitutionally protected rights, including the
right to be free from unreasonable search and seizure, the right to
be free from deprivation of liberty and property without due
process of law, and the right not to have their property taken
without just compensation. Count V is a negligent hiring claim.
Finally, Count VI asserts a violation of the Americans with
Disabilities Act (“ADA”).
The Lymers originally filed their complaint in Harrison County
Circuit Court on July 17, 2015. The City removed the case to this
Court on August 11, 2015, asserting federal question jurisdiction
based on the Lymers’ claims of civil rights violations under 42
U.S.C. § 1983. On August 18, 2015, pursuant to Fed. R. Civ. P.
12(b)(6),
the
City
filed
a
motion
to
dismiss
the
Lymers’
complaint,(dkt. no. 3), which the Court denied on March 23, 2016
(dkt. no. 15).
4
LYMER v. CITY OF CLARKSBURG
1:15CV136
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 19]
On July 13, 2016, the City moved for summary judgment on all
claims against it, arguing that the statute of limitations had
expired prior to the Lymers’ filing of the suit. The Lymers timely
filed their response, and the City filed its reply. The matter is
now fully briefed and ripe for review.
II. LEGAL STANDARD
Summary
documents,
judgment
is
appropriate
electronically
declarations,
where
the
stored
.
stipulations
information,
,
.
.
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).
The moving party bears the initial burden of informing the
Court
of
the
basis
for
the
motion
nonexistence of genuine issues of fact.
5
and
of
establishing
the
Celotex Corp. v. Catrett,
LYMER v. CITY OF CLARKSBURG
1:15CV136
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 19]
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
reasonably find for the nonmoving party.
trier
of
fact
could
Id. at 248–52.
III. APPLICABLE LAW
Claims brought under § 1983 are subject to the applicable
analogous state law statute of limitations. Sattler v. Johnson, 857
F.2d 224, 226 n. 3 (4th Cir. 1988) (citing McCausland v. Mason Cty.
Bd. of Educ., 649 F.2d 278, 279 (4th Cir. 1981). In West Virginia,
“[e]very personal action for which no limitation is otherwise
prescribed shall be brought (a) [w]ithin two years next after the
right to bring the same shall have accrued, if it be for damage to
property . . . .” W. Va. Code § 55-2-12(a).
Section 1983 claims accrue when “the plaintiff ‘knows or has
reason to know of the injury which is the basis of the action.’ ”
A Society Without A Name v. Virginia, 655 F.3d 342, 348 (4th Cir.
2011) (quoting Cox v. Stanton, 529 F.2d 47, 50 (4th Cir. 1975)). If
alleged harm is the result of a series of acts or omissions, the
6
LYMER v. CITY OF CLARKSBURG
1:15CV136
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 19]
continuing violation doctrine may apply, and the limitations period
begins
to
run
from
the
last
violation.
Howard
v.
City
of
Clarksburg, 2016 WL 183558, at *3 (N.D.W.Va. 2016) (citing Green v.
Rubenstein, 644 F. Supp. 2d 723, 747 (S.D.W. Va. 2009)).
The continuing violation doctrine applies when a plaintiff can
establish that the unconstitutional or illegal act “was a fixed and
continuing practice.” A Society Without A Name, 655 F.3d at 348
(quoting Nat’l Advert. Co. v. City of Raleigh, 947 F.2d 1158, 1166
(4th
Cir.
1991)
(quotation
marks
omitted)).
“Allegations
of
entirely new violations do not implicate the continuing violation
doctrine; rather, the same alleged violation must occur at the time
of each act.” Howard, 2016 WL 183558, at *3 (citing A Society
Without A Name, 655 F.3d at 348).
Notably, a continuing violation “is occasioned by continual
unlawful
acts,
not
continual
ill
effects
from
an
original
violation.” City of Raleigh, 947 F.2d at 1166 (quoting Ward v.
Caulk, 650 F.2d 1144, 1147 (9th Cir. 1981) (internal quotation
marks omitted)); see, e.g., A Society Without A Name, 655 F.3d at
348-49 (differentiating between a continuing violation and the
continual
effect
of
the
original
violation);
Jersey
Heights
Neighborhood Ass’n v. Glendening, 174 F.3d 180, 189 (4th Cir. 1999)
(holding that every subsequent refusal to reconsider the original
7
LYMER v. CITY OF CLARKSBURG
1:15CV136
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 19]
violation does not “revive the limitations period” as a continuing
violation).
IV. DISCUSSION
The City argues that it is entitled to summary judgment
because the Lymers filed their suit beyond the expiration of the
applicable two-year statute of limitations set forth in W. Va. Code
§ 55-2-12. The Lymers filed their complaint on July 15, 2015.
According to the City, the statute of limitations may have begun to
run as early as either 2003 or 2009, the dates on which it changed
its building code, occurrences which the Lymers allege led to the
deprivation of their rights. In any event, the City argues that the
last possible date on which the statute of limitation could have
begun to run would have been February 15, 2013, the date on which
the code enforcement officials served the Lymers with the NOV and
the Condemnation and Demolition Order.
In response, the Lymers contend that their claims are not
barred, but instead are saved under the continuing violation
doctrine
because
their
complaint
established
a
“fixed
and
continuing practice.” Dkt. No. 21 at 3. They maintain that the
City’s declaration on July 18, 2013, that their property was “slum
and blight,” was part of an ongoing course of conduct and therefore
a continuing violation.
8
LYMER v. CITY OF CLARKSBURG
1:15CV136
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 19]
This Court has squarely addressed this issue in two previous
cases, Howard v. Clarksburg, 2016 WL 183558 (N.D.W.Va. Jan. 24,
2016); and Hall v. City of Clarksburg, 2016 WL 5680218 (N.D.W.Va.
Sept. 30, 2016). In both cases, it evaluated complaints that were
substantially similar to the Lymers’ complaint here, and found that
the continuing violation doctrine did not operate to save their
claims.
In Hall, the Court concluded that all of the actions alleged
in the complaint “clearly constitute[d] ongoing effects of the
original decision to amend the City ordinances.” Hall, 2016 WL
5680218, at *5. In Howard, a case with facts almost identical to
the
case
at
bar,
the
Court
stated
that
“[t]he
statute
of
limitations began to run on September 21, 2009, when the City
served [Howard] with the notice of violation and condemnation and
demolition order.” 2016 WL 183558, at *5. Indeed, “[t]he latest
date on which it could have begun to run was October 5, 2011, when
the
Clarksburg
Municipal
Court
entered
a
condemnation
and
demolition order authorizing city officials to enter the property
to prepare for demolition following Howard’s unsuccessful appeal.”
Id. Accordingly, because Howard filed her complaint on July 17,
2015, her claims were deemed time-barred. Id.
The
Lymers
nevertheless
argue
9
that
their
case
is
LYMER v. CITY OF CLARKSBURG
1:15CV136
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 19]
distinguishable from Howard because that was the Howards' “fourth
suit on the topic.” They go on to note that this is their first
suit on the matter, and that they brought it within two years of
City’s declaration that
their property was slum or blighted. This
argument is inapposite as the number of suits filed on this issue
simply
has
no
bearing
on
the
resolution
of
the
statute
of
limitation issue present here.
The Lymers attempt to analogize the cases, noting that, in
Howard, the Court indicated that the “last date the statute of
limitations could have begun to run was October 5, 2011, when the
Clarksburg Municipal Court entered a condemnation and demolition
order authorizing city officials to enter the property to prepare
for demolition.” Dkt. No. 21 at 5; see also Howard, 2016 WL 183558,
at *5. The Lymers use this statement to argue that the same must be
true here: “The statute of limitations could last have begun to run
in the [Lymers’] case on the date that the City Council placed the
[Lymers’] property on the demolition list, thereby authorizing city
officials to begin to prepare for demolition.” Dkt. No. 21 at 6.
This comparison misses the mark. The date on which the NOV and
condemnation and demolition order was issued in this case was
February 15, 2013, which, in accord with Howard, is the last
possible date on which the statute of limitations could have begun
10
LYMER v. CITY OF CLARKSBURG
1:15CV136
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 19]
to run against the Lymers. Contrary to the Lymers contention, the
City’s July 18, 2013, resolution is not an ongoing violation, but,
at best, an ongoing ill. As the Court stated in Howard, when
addressing the identical argument:
Similarly, Howard’s argument here that the 2013
resolution was a continuing violation lacks merit. Any
harm to her occurred in 2009, when she received the
BOCA’s condemnation and demolition order. At that time,
the City could have demolished her property had it
possessed the funds to do so. The 2013 resolution merely
provided the City with the funding to effectuate its 2009
order. . . . The 2013 resolution was therefore a
continuing ill effect of the 2009 condemnation and
demolition order.
Id. (citing Jersey Heights, 174 F.3d at 189). The 2013 resolution
on which the Lymers rely here is the identical resolution relied on
by Howard. Accordingly, there is no ongoing violation that saves
their claims from the bar of the statute of limitations.
Finally, as to Mr. Lymer’s ADA claim, it is even more clear
that the statute of limitations has run. The lone allegation
related to this claim is that, on February 15, 2013, Kesling
refused to allow Mr. Lymer to work on his property because of his
handicap. It is evident then, based on Mr. Lymer’s own allegation,
that his claim accrued on February 15, 2013. As he did not file
suit until July 17, 2015, over five months after the expiration of
the statute of limitations, that claim also is barred.
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LYMER v. CITY OF CLARKSBURG
1:15CV136
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 19]
At bottom, this case is virtually identical to Howard, and,
both for the reasons contained in the Court's order in that case,
as well as the reasoning here, the Court concludes that the Lymers’
claims are barred by the statute of limitations. Consequently, it
GRANTS the City’s motion for summary judgment.
V. CONCLUSION
For the reasons discussed, the Court GRANTS the defendant’s
motion for summary judgment (dkt. no. 19), DISMISSES this case WITH
PREJUDICE, and ORDERS it stricken from the Court’s active docket.
It is so ORDERED.
Pursuant to Fed. R. Civ. P. 58, the Court directs the Clerk of
Court to enter a separate judgment order and to transmit copies of
this Memorandum Opinion and Order to counsel of record.
DATED: March 10, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
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