[Cite as Jones v. Norwood, 2013-Ohio-350.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
FARRIS JONES, : APPEAL NO. C-120237 TRIAL NO. A-1009426 Plaintiff-Appellee, :
vs. : O P I N I O N.
CITY OF NORWOOD, :
GERRY STOKER, in his individual : capacity and in his official capacity as Building Commissioner of the city of : Norwood, : and : DAVID LEWIS, Sergeant, city of Norwood Police Department, in his : individual capacity, : Defendants-Appellants, : and : JOHN DOES 1-5, : Defendants.
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed from is: Affirmed in Part, Reversed in Part, and Cause Remanded
Date of Judgment Entry on Appeal: February 6, 2013 OHIO FIRST DISTRICT COURT OF APPEALS
Mark Lawson, Brian Howe, Legal Aid Society of Southwest Ohio, LLC, O’Hara, Ruberg, Taylor, Sloan & Sergent, and Michael O’Hara, for Plaintiff-Appellee,
Schroeder, Maundress, Barbiere & Powers, Lawrence E. Barbiere, and Christopher S. Brown, Norwood Assistant Law Director, for Defendants-Appellants.
2 OHIO FIRST DISTRICT COURT OF APPEALS
C UNNINGHAM , Judge.
{¶1} Defendants, the city of Norwood, Ohio, Norwood’s Building
Commissioner Gerry Stoker, and Norwood Police Sergeant David Lewis, appeal from
the trial court’s order (1) denying in part their motion for summary judgment on
plaintiff Farris Jones’s federal claims for substantive- and procedural-due-process
violations brought under 42 U.S.C. 1983, and her state law claims for the intentional
infliction of emotional distress and negligence, and (2) granting partial summary
judgment to Jones on her claim that the city of Norwood violated her procedural-
due-process rights.
{¶2} Jones brought this action seeking money damages and injunctive and
declaratory relief after the city of Norwood and its agents ordered her to vacate
within hours, due to “overcrowding,” the one-bedroom apartment that she shared
with another individual. The defendants moved for summary judgment in part on
the basis of state and federal immunity. For the reasons that follow, we affirm in
part and reverse in part the trial court’s order.
I. Background Facts and Procedural History
{¶3} Jones began renting the one-bedroom apartment located on the
third-floor of the building at 2000 Maple Avenue in Norwood, Ohio, in 2008, with
the assistance of a full subsidy from the Talbert House through its Shelter Care
Voucher Program. The rental occupancy certificate for the unit allowed four
residents. Although Jones was the only individual named in the lease agreement,
beginning in 2009, she began to share her apartment with Matt Waller. They did not
share the bedroom; one of them slept on the floor in the “spacious” living room on a
makeshift-bed comprised of blankets and pillows.
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{¶4} Prior to the incident that is the basis of the lawsuit, defendant Lewis,
a sergeant with the Norwood Police Department, was familiar with both Jones and
Waller because of frequent police runs made to the apartment building for issues
such as public intoxication, drug use, unsanitary conditions, and unruliness.
According to Jones, Lewis had threatened to have her housing voucher removed.
{¶5} Defendant Stoker, as the Building Commissioner of Norwood, was the
head of the Norwood Building Department. The building department was
responsible for enforcing the Norwood Building Code and the International Property
Maintenance Code (“IMPC”), which it had adopted as its own property maintenance
code.
{¶6} Both Stoker and Lewis were active in Norwood’s Keep Our Properties
Safe (“KOPS”) program, a collaborative effort amongst the Norwood Building, Police,
Fire and Health Departments. One of the goals of KOPS was to proactively address
issues of blight and nuisance properties in the city.
{¶7} Members of KOPS met three times a month to coordinate team
inspections of properties throughout the city of Norwood. As part of KOPS, the
police department compiled addresses of properties it deemed problem properties
and in need of inspection, and forwarded those to Stoker, as well as to an official at
the health department. Sergeant Lewis was the police liaison for KOPS, and reported
to Stoker. Stoker reported to the mayor of Norwood on KOPS.
{¶8} On October 6, 2010, at about 11 a.m., Commissioner Stoker and
Sergeant Lewis, together with representatives from Norwood’s Building, Health,
Fire, and Police Departments (“the KOPS group”), visited 2000 Maple Avenue
pursuant to the KOPS program. The property maintenance inspectors from the
building department on the visit included Charles Russ and James Shelby. Prior to
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the inspection, the building department had received complaints about the property
from neighbors and the caretaker, and the police department had included the
property on its list of problem properties based on the number of police runs to the
building.
{¶9} After arriving at the apartment building, the building department
representatives issued “notices of intent to vacate for overcrowding” to occupants of
several lower-level units. These notices required the occupants to vacate by 5 p.m.
that same day and provided no opportunity to cure the “overcrowding.”
{¶10} The KOPS group then approached Jones’s unit on the third floor.
Jones’s unit, like all of the apartments in the building, has two doors: a “back door”
that enters into the kitchen area, and a “front door” that enters into the living room
area. They knocked on Jones’s back door. When no one responded, they knocked on
the front door.
{¶11} When Jones and Waller answered the door, Stoker and Lewis asked
them about their sleeping arrangement. According to Jones, Lewis specifically asked
if she and Waller were “sexually” active. This upset Jones.
{¶12} After determining that Jones and Waller were not sharing the same
bedroom and Waller would not voluntarily move out, Stoker decided to cite Jones
and Waller for “overcrowding.”
{¶13} Russ completed a “notice of intent to vacate” form and checked the
box indicating a violation of IPMC 2006 Section 404.5 He handwrote on the order
“NOTICE OF INTENT TO VACATE ON OR ABOUT 10-6-10@ 5:00P.M,” “FOR
OVERCROWDING” and “NO PERSON’S [sic] TO OCCUPY PROPERTY AFTER 5:00
P.M.” Although the form used by the building department includes a section for the
city to offer the recipient an opportunity to cure overcrowding by reducing
5 OHIO FIRST DISTRICT COURT OF APPEALS
occupancy by a set amount, Russ had crossed out that provision. The form did not
include any information advising Jones of a right to appeal.
{¶14} The IPMC 2006 Section 404.5 defined “overcrowding” based on the
square footage of the bedroom. The guidelines indicated 70 square feet for the first
person in a bedroom and an additional 50 square feet for each additional person.1
{¶15} Sergeant Lewis, Stoker, and Russ testified in their depositions that
Waller had pushed aside blankets and pillows when he answered the door. Jones
claimed that the blankets were at least six feet from the door. Russ and Stoker
believed they were closer, but everyone agreed that the distance was a minimum
several feet, and that the makeshift bed was made of blankets and pillows, which
were easily removed.
{¶16} In his deposition, Russ testified that the placement of the blankets
and pillows near the door was a safety concern and an additional reason why he
issued the intent to vacate. But Russ did not indicate on the notice of intent to vacate
a violation of Norwood’s Property Maintenance Code 702.1, which applies when the
main exit or egress is blocked. And Jones testified in her deposition that no one had
mentioned the blankets by the door or told her that they were a safety concern.
{¶17} Although Jones had initially refused to sign the standard form
providing the building department officials consent for an inspection, later she had
orally invited them into the apartment. With the exception of Russ, who briefly
stepped about five feet into the unit before issuing orders, no one from the group
1 The 2009 version of the IPMC dealing with “overcrowding” provides that “[t]he number of persons occupying a dwelling unit shall not create conditions that, in the opinion of the code official, endanger the life, health, safety or welfare of the occupants.” At his deposition, Russ stated that Norwood had not begun to use the 2009 version until 2011.
6 OHIO FIRST DISTRICT COURT OF APPEALS
entered or inspected the apartment. Thus, no one measured the apartment or
checked to see if the back door was obstructed.
{¶18} Jones and Waller refused to sign the “intent to vacate order” or to
accept it, so Russ left it on the front door of the apartment unit. Lewis and Stoker
told Jones and Waller that if they did not leave by 5 p.m. that same day, then they
could be arrested. Jones recalled in her deposition that Stoker had said, “If you’re
not out of here by 5:00, if we think that you’re in your apartment, we’re going to bust
down your door and take you both to jail for criminal trespassing.” Lewis, backing
him up, had said, “Yeah, we will be back.” Jones and Waller left and spent the next
two nights in a hotel.
{¶19} The next day, October 7, 2010, Russ, Shelby, and a police officer
returned to the property and posted the actual order to vacate on the front door of
the unit. This document retroactively ordered the occupants to vacate “by 5:00 p.m.
on Wednesday October 6, 2010.”
{¶20} The document informed Jones and Waller that the structure was
ordered vacated under the authority of Norwood Codified Ordinances 1331.13(a) for
(1) the “[f]ailure to maintain the property in accordance with the provisions of the
Norwood Codified Ordinances 1305.08 (Rental Certificates and Certificates of Use
and Occupancy)” and (2) “violations, and safety issues of the Norwood Property
Maintenance Code Section 1305.14 and I.P.M.C. 2006 Property Maintenance Code.”
The retroactive order also contained information about the appeal process. Several
Norwood officials, including Stoker and the mayor, were copied on the order to
vacate document.
7 OHIO FIRST DISTRICT COURT OF APPEALS
{¶21} At the same time, Russ and Shelby also posted a large placard on the
front and back doors warning individuals not to “occupy” the unit and that they
would be penalized if they did so.
{¶22} Meanwhile, after vacating the apartment on October 6 based on the
threat of criminal charges, Jones contacted a lawyer at the Legal Aid Society of
Greater Cincinnati (“Legal Aid”), Jessica Powell. Powell averred that she had
communicated with the city’s law department about the propriety of the “intent to
vacate order” and had received assurances from the city’s assistant law director that
the city would not enforce the order and that Jones and Waller would not be arrested
for returning to the apartment. Powell relayed this information to Jones. Based on
that assurance, Jones and Waller returned to the apartment on October 8, 2010.
Upon their arrival, they saw the additional documents ordering them to vacate or
face criminal prosecution. Jones called Legal Aid again, and Powell again contacted
the city’s law department and was again reassured that the city would not enforce the
vacate orders.
{¶23} Jones presented evidence that Stoker and Lewis returned to her
apartment on additional occasions in October. She claimed that they had returned
together on or about October 13, 2010. On that date, they banged on her door and
told her that she and Waller needed to leave. She recalled also that Lewis returned to
the apartment building later in October on a police run. When he saw Jones, he said,
“It’s not over. You think you’re gonna be here long. You’re not going to be in this
apartment long.”
{¶24} On October 14, 2010, Jones and Waller filed this multiple-claim
lawsuit against the city of Norwood; Stoker, in his individual capacity and in his
8 OHIO FIRST DISTRICT COURT OF APPEALS
official capacity as the Norwood Building Commissioner;2 Sergeant Lewis in his
individual capacity, and John Does 1-5. Jones and Waller then sought and were
granted a temporary restraining order and a preliminary injunction against the
defendants. The court rescinded the vacate orders, ordered the city and its
employees to provide Jones and Waller unfettered access to their apartment, and
restrained the city of Norwood and its employees from ordering Jones and Waller to
vacate the apartment and from “threatening” Jones and Waller “with criminal
prosecution and/or arrest for peacefully being in their home.”
{¶25} Jones moved out of the apartment in January 2011 and into another
apartment with Waller where the Talbert House pays her portion of the rent. She did
not appeal the vacate order administratively. Waller subsequently dismissed all
claims against the defendants.
{¶26} The defendants moved for summary judgment on all claims in the
amended complaint. In addition to attacking the merits of Jones’s claims, they
asserted immunity under state and federal law. Specifically, the city of Norwood
alleged Ohio’s political-subdivision immunity from the state law claims. Stoker, in
his individual and official capacity, and Lewis, in his individual capacity, alleged
Ohio’s political-subdivision-employee immunity from the state-law claims and
federal qualified immunity from the federal constitutional claims.
{¶27} Jones subsequently dismissed the Fair Housing Act, Ohio Civil
Rights and Equal Protection based claims, leaving only the 42 U.S.C. 1983 claims and
the state claims for negligence and the intentional infliction of emotional distress.
Jones then moved for partial summary judgment on her claim for municipal liability
2Jones and Waller added the claims against Stoker “acting in his official capacity as the Building Commissioner” in an amended complaint.
9 OHIO FIRST DISTRICT COURT OF APPEALS
against Norwood and Stoker in his official capacity based on a procedural-due-
process violation. She argued that the undisputed facts demonstrated the violation
of her procedural-due-process rights, and the city’s responsibility for that
unconstitutional action, because the deprivation was committed by a government
actor pursuant to a custom or policy and the act was committed by the final
policymaker for the governmental entity.
{¶28} The trial court granted summary judgment to the city on the state-law
claims on the basis of the political-subdivision immunity set forth in R.C. Chapter
2744. The court otherwise denied the defendants’ motion.
{¶29} The trial court granted partial summary judgment to Jones on her 42
U.S.C. 1983 claim against the municipality based on the violation of her procedural-
due-process rights, finding that Jones had established a procedural-due-process
violation but that a genuine issue of material fact remained as to the city’s liability for
the violation.3
II. Assignments of Error
{¶30} In two assignments of error, the city, Commissioner Stoker, and
Sergeant Lewis now argue that the trial court erred (1) by not granting summary
judgment to Stoker and Lewis on the state and federal claims, and (2) by granting
partial summary judgment to Jones upon finding a procedural-due-process
violation.
3 In its judgment entry, but not in its decision, the court granted summary judgment to Jones against Stoker in his individual capacity on the procedural-due-process claim. Jones, however, had moved for summary judgment against Stoker in his official capacity, which had the legal significance of a claim against the municipality, for which qualified immunity did not apply. Stoker does not purport to appeal that judgment except to the extent that he was denied qualified immunity.
10 OHIO FIRST DISTRICT COURT OF APPEALS
A. Jurisdiction
{¶31} We first address our jurisdiction in this interlocutory appeal. The
denial of a motion for summary judgment is generally not a final, appealable order.
Hubbell v. City of Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, ¶ 9.
But “[w]hen a trial court denies a motion in which a political subdivision or its
employee seeks immunity under R.C. Chapter 2744, that order denies the benefit of
an alleged immunity and is therefore a final, appealable order pursuant to R.C.
2744.02(C).” Id. at syllabus. Likewise, “[a]n order denying a motion for summary
judgment in which an employee of a political subdivision sought immunity from
claims brought under Section 1983, Title 42, U.S. Code is a final, appealable order
pursuant to R.C. 2744.02(C).” Summerville v. City of Forest Park, 128 Ohio St.3d
221, 2010-Ohio-6280, 943 N.E.2d 522. In this case, the trial court denied Stoker and
Lewis the benefit of an alleged immunity. Thus, this court has jurisdiction over the
interlocutory appeal, even in the absence of a Civ.R. 54(B) certification, to review the
trial court’s order denying the defendants the benefit of the alleged state and federal
immunity.
{¶32} The defendants additionally ask this court to review the propriety of
the trial court’s order denying summary judgment on the merits of the federal and
state claims and the trial court’s disposition of Jones’s motion for summary
judgment on the procedural-due-process claim against the city. But the order
appealed is not otherwise final, and, therefore, this court’s jurisdiction in this appeal,
arising under R.C. 2744.02(C), is limited to the review of the trial court’s denial of
the benefit of immunity. See, e.g., Leasure v. Adena Local School Dist., 2012-Ohio-
3071, 973 N.E.2d 810, 822 (4th Dist.) (holding that when appealing a denial of
immunity under R.C. 2744.02(C), and the order is not otherwise final and
11 OHIO FIRST DISTRICT COURT OF APPEALS
appealable, a party may not raise other alleged errors concerning the denial of
summary judgment.) See also Inwood Village, Ltd. v. City of Cincinnati, 1st Dist.
No. C-110117, 2011-Ohio-6632, ¶ 7 (noting that dismissal of plaintiffs’ appeal from
the trial court’s entry dismissing their contract claims was proper because the appeal
had not been taken from the order denying the political subdivision the benefit of an
alleged immunity).
{¶33} Nonetheless, application of the qualified-immunity analysis requires
some determination of the state of the constitutional law at the time of the alleged
state action. Thus, our jurisdiction includes the authority to resolve these issues
concerning the federal claims to the extent that is necessary to resolve the claim of
qualified immunity. Our jurisdiction does not extend to issues raised by Stoker and
Lewis concerning the merits of the state-law claims.
B. Standard of Review
{¶34} We review the grant or denial of summary judgment de novo,
applying the standards set forth in Civ.R. 56. See Grafton v. Ohio Edison Co., 77
Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). To obtain summary judgment, the
movant must demonstrate that (1) there is no genuine issue of material fact; (2) the
movant is entitled to judgment as a matter of law; (3) and it appears from the
evidence that reasonable minds can come to but one conclusion when viewing
evidence in favor of the nonmovant, and that conclusion is adverse to the
nonmovant. Id. We first address Stoker’s and Lewis’s argument that the trial court
erred by failing to grant them summary judgment on the grounds of state and federal
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III. State Law Immunity
{¶35} Jones’s complaint contains state-law claims for the intentional
infliction of emotional distress and negligence against Stoker, individually, and in his
official capacity as Norwood Building Commissioner, and Lewis, individually. We
begin by clarifying the legal significance of Jones naming Stoker as a defendant in his
individual capacity and in his official capacity.
{¶36} Generally, making allegations against a named officeholder of a
political subdivision in his official capacity is the equivalent of suing the political
subdivision. See Lambert v. Clancy, Hamilton Cty. Clerk of Courts, 125 Ohio St.3d
231, 2010-Ohio-1483, 927 N.E.2d 585. Here, Jones not only made allegations
against the building department, she clarified that she was suing Stoker in his official
capacity as the head of the building department, and in his individual capacity for his
personal involvement in the dispute. Thus, the allegations against Commissioner
Stoker in his official capacity involve municipal liability. Conversely, the allegations
against Commissioner Stoker in his individual capacity involve his personal liability.
{¶37} We make this distinction because the appropriate R.C. Chapter 2744
immunity analysis depends on whether the officerholder defendant is sued in his
official capacity or in his individual capacity. Lambert at ¶ 10. The analysis set forth
in R.C. 2744.02—political-subdivision-immunity analysis—applies when the named
defendant officerholder of a political subdivision is sued in his official capacity. The
analysis set forth in R.C. 2744.03(A)(6) applies to certain employees of political
subdivisions.
{¶38} In moving for summary judgment on the basis of immunity, Stoker,
in his official capacity and in his individual capacity, urged the trial court to grant
immunity under the analysis set forth in R.C. 2744.03(A)(6). The trial court denied
13 OHIO FIRST DISTRICT COURT OF APPEALS
summary judgment to Stoker in his official capacity on the state-law claims using the
R.C. 2744.03(A)(6) analysis as erroneously urged by Stoker. Conversely, the trial
court granted summary judgment to the city on the state-law claims applying the
political-subdivision-immunity analysis set forth in R.C. 2744.02. Jones rightfully
conceded that the city was entitled to summary judgment on those claims on the
basis of immunity. Because Jones’s claims against Stoker in his official capacity were
claims against the city, and the city is entitled to immunity from liability from those
state-law claims, we conclude that the trial court erred by denying summary
judgment to Stoker in his official capacity on the state-law claims.
{¶39} The employee-immunity provision of R.C 2744.03(A)(6) governs
whether Stoker or Lewis are individually immune from liability for Jones’s two
remaining state-law claims—negligence and the intentional infliction of emotional
distress. With respect to both Stoker and Lewis, this statute provides for immunity
unless (a) their “acts or omissions were manifestly outside the scope of [their]
employment or official responsibilities;” (b) their “acts or omissions were with
malicious purpose, in bad faith, or in a wanton or reckless manner;” or (c) a section
of the Revised Code expressly imposed civil liability on them. R.C. 2744.03(A)(6)(a)-
(c).
{¶40} Jones concedes that the actions of Stoker and Lewis were not
manifestly outside the scope of their employment or official responsibilities, and the
evidence submitted on summary judgment demonstrates only that they were acting
within the scope of their employment and official responsibilities when they
committed the allegedly tortious acts. Therefore, the first exception to immunity
does not apply in this case.
14 OHIO FIRST DISTRICT COURT OF APPEALS
{¶41} Likewise, there is no evidence that a section of the Revised Code
expressly imposes civil liability on either of the individual defendants.
{¶42} The crux of the dispute, therefore, is whether the exception for
malicious, bad faith, and wanton or reckless acts or omissions set forth in R.C.
2744.03(A)(6)(b) applies. “Malicious purpose” is the willful and intentional design
to injure or harm another, generally seriously, through unlawful or unjustified
conduct. See, e.g., Chaney v. Norwood, 189 Ohio App.3d 124, 2010-Ohio-3434, 937
N.E.2d 634, ¶ 11; Cook v. City of Cincinnati, 103 Ohio App.3d 80, 90, 658 N.E.2d 814
(1st Dist.1995). “Bad faith” evinces a “dishonest purpose, conscious wrongdoing, the
breach of a known duty through some ulterior motive or ill will, as in the nature of
fraud, or an actual intent to mislead or deceive another.” Cook at 90-91.
{¶43} “Wanton misconduct is the failure to exercise any care toward those
to whom a duty of care is owed in circumstances in which there is a great probability
that harm will result.” Anderson v. City of Massillon, ___ Ohio St.3d ___, 2012-
Ohio-5711, ___ N.E.2d ___ (2012), paragraph three of the syllabus, approving and
following Hawkins v. Ivy, 50 Ohio St.2d 114, 363 N.E.2d 367 (1977). On the other
hand, “[r]eckless conduct is characterized by the conscious disregard of or
indifference to a known or obvious risk of harm to another which is unreasonable
under the circumstances and substantially greater than negligent conduct.” Id. at
paragraph four of the syllabus, adopting 2 Restatement of the Law 2d, Torts, Section
500 (1965).
{¶44} Stoker and Lewis argue that the exception in R.C. 2744.03(A)(6)(b)
cannot apply as a matter of law to claims of negligence. Jones did not address this
part of Stoker’s and Lewis’s motion for summary judgment, and she has failed to
15 OHIO FIRST DISTRICT COURT OF APPEALS
address the issue on appeal. Moreover, her bare-bones claim for negligence did not
allege any more than Stoker and Lewis “negligently performed their duty to [Jones.]”
{¶45} We agree with Stoker and Lewis that the exception to immunity for
political-subdivision employees set forth in R.C. 2744.03(A)(6)(b) does not reach
these allegations of merely negligent conduct. See Anderson at ¶ 23. Because none
of the other exceptions to immunity for political-subdivision employees apply to
Jones’s negligence claim against Stoker and Lewis in their individual capacities, they
are entitled to immunity on that claim. Thus, the trial court erred by denying
summary judgment to them on the negligence claim.
{¶46} Conversely, the exception to immunity for political-subdivision
employees set forth in R.C. 2744.03(A)(6)(b) does apply to Jones’s intentional
infliction-of-emotional-distress claim. To prevail on this exception to immunity,
Jones must show that Stoker and Lewis willfully harmed her, were motivated by a
dishonest purpose in breaching a duty owed to her, acted with no care whatsoever, or
that their actions were indifferent to a known or obvious risk of harm under the
circumstances. See R.C. 2744.03(A)(6)(b).
{¶47} In support of her intentional-infliction-of-emotional-distress claim,
Jones presented evidence that Stoker, as building commissioner, and Lewis, as the
Norwood police department’s liaison to KOPS, were involved in the decision to target
Jones’s apartment building and to issue the equivalent of an immediate vacate order
on October 6, 2010, even if the emergency order was not supported under the law.
Further, she presented evidence that both Stoker and Lewis had threatened to return
and arrest her if she did not comply with the October 6, 2010 order, and that at least
Lewis knew she was living in the unit with the assistance of a voucher from a social
services agency. Jones also presented evidence that Stoker and Lewis harassed her
16 OHIO FIRST DISTRICT COURT OF APPEALS
about the vacate order after her lawyer had received assurances from the city that she
could stay.
{¶48} We conclude that whether Stoker acted in a wanton or reckless
manner, acted in bad faith, and/or acted with malicious purpose is a material issue
of genuine fact that remains in dispute, a finding that would deprive Stoker, in his
individual capacity, of his statutory immunity. We arrive at the same conclusion
with respect to Lewis. Accordingly, we affirm the trial court’s denial of summary
judgment on the basis of immunity to Stoker and Lewis in their individual capacities
on the intentional-infliction-of-emotional-distress claim.
{¶49} Stoker and Lewis additionally argue that Jones failed to establish that
she suffered “emotional distress,” and, therefore, the trial court erred by failing to
grant summary judgment to them on this claim on that basis. As we noted in
discussing our jurisdiction in this appeal, this issue is beyond the scope of our
interlocutory appeal on the issue of immunity. Accordingly, we do not address that
issue.
IV. Federal Qualified Immunity
{¶50} Stoker and Lewis as individual defendants argue that they are entitled
to the protection of qualified immunity because they were acting with discretionary
authority at the time of the allegations. Stoker’s and Lewis’s immunity to the 42
U.S.C. 1983 claims is an issue of federal law. Cook, 103 Ohio App.3d at 85, 658
N.E.2d 814.
{¶51} The doctrine of federal qualified immunity shields government
officials from civil liability “insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d
17 OHIO FIRST DISTRICT COURT OF APPEALS
396 (1982); Summerville v. City of Forest Park, 195 Ohio App.3d 13, 2011-Ohio-
3457, 958 N.E.2d 625, ¶ 17 (1st Dist.) We are mindful that while immunity generally
applies, “[w]hen government officials abuse their offices,” a civil action for damages
may supply the sole means “for vindication of constitutional guarantees.” Anderson
v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), quoting
Harlow at 814.
{¶52} Once the government official has presented facts that suggest he was
performing a discretionary function during the incident, the plaintiff bears the
burden of presenting evidence to meet a two-part test. The plaintiff must show: (1)
the violation of a constitutional right, and (2) that the right at issue was “clearly
established” at the time of defendant’s misconduct such that a reasonable official
acting with the same knowledge would understand that his actions violate that right.
See Summerville at ¶ 18.
{¶53} The trial court, and this court, may address these tests in any order.
See Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 818, 172 L.Ed.2d 565
(2009), modifying the procedure for resolving claims of qualified immunity
mandated in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).
{¶54} Because it is undisputed that Stoker and Lewis were acting within the
scope of their discretionary authority as building commissioner and police sergeant,
respectively, when the alleged constitutional violations occurred, we begin our review
of the trial court’s denial of qualified immunity by determining whether the facts
shown, when viewed in the light most favorable to Jones, demonstrate that the
actions of each of the individual defendants violated Jones’s clearly established due-
process rights.
18 OHIO FIRST DISTRICT COURT OF APPEALS
A. Procedural Due Process
1. Stoker
{¶55} The trial court determined that Stoker violated Jones’s Fourteenth
Amendment right to procedural due process when, in the absence of exigent
circumstances, he required Jones to vacate without a predeprivation hearing.
{¶56} The Due Process Clause of the Fourteenth Amendment guarantees
that “no State shall deprive * * * any person of life, liberty, or property, without due
process of law.” Fourteenth Amendment to the U.S. Constitution. The concept of
procedural due process constrains governmental-decision making that deprives
individuals of liberty or property interests protected by the Due Process Clause. See
Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The
requirements of due process are flexible, but at a minimum, the Due Process Clause
requires meaningful process at a meaningful time, as determined by a balancing of
the competing interests involved. See id.
{¶57} To succeed on a procedural-due-process claim, a plaintiff must
establish a constitutionally protected property or liberty interest and show that such
an interest was deprived without appropriate process. Bd. of Regents v. Roth, 408
U.S. 564, 569-70, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); LRL Properties v. Portage
Metro Hous. Auth., 55 F.3d 1097, 1108 (6th Cir.1995).
a. Jones had a Protected Property Interest
{¶58} Jones’s procedural-due-process claim depends on her having a
protected property or liberty interest. She claims a protected property interest in her
leasehold estate. The United States Constitution does not create property interests.
Bd. of Regents at 577. Instead, “they are created and their dimensions are defined by
existing rules or understandings that stem from an independent source such as state
19 OHIO FIRST DISTRICT COURT OF APPEALS
law.” Id; Thomas v. Cohen, 304 F.3d 563, 576 (6th Cir.2002). Under Ohio law,
tenants holding leasehold estates have a recognized property interest. See R.C.
5321.01 and R.C. 5321.04; Carroll Weir Funeral Home v. Miller, 2 Ohio St.2d 189,
191, 207 N.E.2d 747 (1965). Thus, we conclude, as the trial court did, that Jones had
a recognized property interest for Fourteenth Amendment purposes.
b. Preeviction Hearing
{¶59} Possessory interests in property invoke the protections of procedural
due process. Fuentes v. Shevin, 407 U.S. 67, 87, 92 S.Ct. 1983, 32 L.E.2d 556 (1972).
This legal conclusion is “well-established.” Thomas at 576. Generally, due process
requires notice and a hearing prior to an eviction, which affects a significant property
interest. See id.; Flatford v. City of Monroe, 17 F.3d 162, 167 (6th Cir.1994), citing
Fuentes.
{¶60} There are rare exceptions to the requirement of a hearing prior to an
eviction. “A prior hearing is not constitutionally required where there is a special
need for very prompt action to secure an important public interest and where a
government official is responsible for determining, under the standards of a narrowly
drawn statute, that it was necessary and justified in a particular instance.” Flatford
at 167, citing Fuentes at 91.
{¶61} Stoker argued that the order was authorized under Norwood Building
Code 1331.12, which allows for “Emergency Measures.” That section provides:
Vacating Structures. When the Code Official determines that
there is actual and immediate risk of failure or collapse of a
building or structure or any part thereof or the existence of
defective equipment or service facilities such as to endanger life
or health, or when any structure or part of structure has fallen or
20 OHIO FIRST DISTRICT COURT OF APPEALS
failed and use or occupancy of the structure, equipment, service
facility and/or equipment or part thereof would, in his opinion,
endanger life or health or where there is a particularly hazardous
use of the building or structure such as to endanger life or health,
the Code Official is hereby authorized and empowered to order
and require the occupants and tenants to vacate the same
forthwith, and/or to immediately cease, and refrain from use or
operation of the building * * * or part thereof which is deemed
dangerous. The Code Official shall placard the building,
structure or premise in accordance with the procedures of
Section 1331.10.
{¶62} While this section allows the code official to issue an emergency
vacate order under exigent circumstances, including “where there is a particularly
hazardous use of the building or structure such as to endanger life or health,” for
such an emergency order to pass constitutional muster, the circumstances must
require “very prompt action” to secure an important public or governmental interest.
See Flatford, 17 F.3d 162, 167, citing Fuentes, 407 U.S. at 91, 92 S.Ct. 1983, 32
L.Ed.2d 556. In this case, the trial court found that as a matter of law, no exigent
circumstances existed such that a reasonable code official would have declared an
emergency.
{¶63} Stoker argues that a reasonable building inspector could have
concluded that there was a “safety” threat where he observed a makeshift bed placed
near the front door and Jones refused to reduce the number of occupants in the
apartment unit. In support, he cites Flatford v. City of Monroe, 17 F.3d 162 (6th
Cir.1994).
21 OHIO FIRST DISTRICT COURT OF APPEALS
{¶64} In Flatford, a building inspector issued an emergency vacate order
after observing exposed electrical wiring and nonfunctioning smoke detectors in a
wooden-framed structure occupied by families with children. The Sixth Circuit
Court of Appeals held that the plaintiffs’ evidence failed to prove that a reasonable
building inspector under those circumstances could not conclude that the condition
of the structure posed an immediate threat to the safety of its occupants. See Sell v.
City of Columbus, 127 Fed.Appx. 754 (6th Cir.2005) (upholding judgment for code
enforcement officer on claim alleging emergency vacate order violated procedural
due process rights where evidence supported a finding that a code enforcement
officer could have reasonably concluded that the unsanitary conditions in a home
occupied by two ill elderly residents, with 33 dogs and four birds on or about the
premises, posed an immediate threat to health and safety of the occupants); Elsmere
Park Club, L.P. v. Town of Elsmere, 542 F.3d 412 (3d Cir.2008) (upholding
summary judgment for town in property owner’s 42 U.S.C. 1983 action alleging the
violation of procedural-due-process rights when town condemned apartment
complex without a predeprivation hearing, where competent evidence supported a
reasonable belief that the serious mold infestation in the complex presented an
emergency).
{¶65} Jones argues that the circumstances in this case did not raise any
safety concern, much less the serious and imminent safety concern at issue in
Flatford. She maintains that Stoker ordered her to vacate under the pretext of a code
violation and that the circumstances did not warrant immediate action.
{¶66} In analyzing Stoker’s decision to issue the same-day eviction, we look
to whether the record contains evidence that a reasonable building commissioner
could have concluded that the condition of the apartment posed an immediate threat
22 OHIO FIRST DISTRICT COURT OF APPEALS
to the safety of its occupants. Flatford at 168. It is undisputed that Stoker, in his
supervisory role, issued the vacate order knowing that Jones had two doors to the
apartment. Further, the evidence demonstrates that the makeshift bed, consisting of
blankets and pillows, did not prevent the occupants from easily opening the door and
exiting the apartment. Finally, the evidence demonstrated that none of the building
department officials measured the size of the bedroom to determine whether the
“overcrowding” guidelines were violated. Even if we deem this a reasonable mistake
by the building official, no reasonable official could have believed that the occupancy
of two individuals in a one-bedroom apartment approved for four occupants
warranted an emergency order to vacate. Therefore, Jones established her right to a
preeviction hearing, a hearing that undisputedly did not occur.
c. “Suitable Postdeprivation Remedy”
{¶67} Stoker argues also that Jones’s right to appeal the vacate order after
the eviction satisfied the Due Process Clause, citing Parratt v. Taylor, 451 U.S. 527,
538, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled in part on other grounds,
Daniels v. Williams, 474 U.S. 327, 330-331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986).
This argument is premised upon his prior argument that the planned inspection
revealed exigent circumstances that justified the deprivation of property. But we
have rejected Stoker’s claim that a reasonable building commissioner could have
found exigent circumstances under these facts. Thus, the existence of
postdeprivation remedies is “irrelevant.” Leslie v. Lacy, 91 F.Supp.2d 1182, 1188
(S.D.Ohio 2000). See Elsmere Park Club, 542 F.3d at 417.
{¶68} Apart from only minimal notice to leave, Stoker provided Jones with
no due process before the eviction. Jones vacated the apartment immediately, and
she did not return for two days. Because the record does not contain facts from
23 OHIO FIRST DISTRICT COURT OF APPEALS
which a reasonable building commissioner could conclude that the occupants might
be imminently endangered, and the law clearly established Jones’s right to a
predeprivation hearing absent those exigent circumstances, we hold that Stoker was
not entitled to summary judgment on his claim of qualified immunity from the
procedural-due-process claim.
2. Lewis
{¶69} In this case, it was sufficiently clear at the time of the eviction that
Jones was entitled to a predeprivation hearing in the absence of exigent
circumstances. We have held that the necessary exigent circumstances did not exist.
But whether exigent circumstances actually justified the same-day eviction does not
resolve the question of Lewis’s qualified immunity. Flatford, 17 F.3d at 170.
{¶70} Generally, police officers are given “wide latitude to rely on a
building-safety official’s expertise where that expert determination has some basis in
fact.” Id. But, “[i]f there are suspicious circumstances which would lead a
reasonable officer to scrutinize whether an inspector’s actions are wholly arbitrary,
then reliance upon the inspector’s judgment should not shield officers who act
unreasonably. Similarly, officers should not be immune if there is affirmative
evidence that the officers actually knew that the city official was * * * fabricating a
story * * *.” Id. at fn. 9.
{¶71} In this case, the evidence presented, when viewed in the light most
favorable to Jones, demonstrated that Lewis knew or had sufficient reason to believe
that Stoker issued the emergency vacate order without legal justification. Lewis was
the police liaison for the KOPS program and he was involved in the decision to
inspect Jones’s apartment unit. Further, he participated in the same-day eviction of
the occupants of the lower-level apartment units in the building and Jones’s unit for
24 OHIO FIRST DISTRICT COURT OF APPEALS
“overcrowding.” In his deposition, Lewis could not identify any reason why it was
imperative for Jones to leave that day. In sum, the record contains evidence to
support Jones’s theory that Stoker had made the determination to issue the
emergency vacate order before the “inspection” and that Lewis was aware of this
plan.
{¶72} The record in this case contains some evidence that Lewis acted with
knowledge that Stoker had not based the emergency vacate order on exigent
circumstances. For this reason, Lewis was not entitled to summary judgment on his
claim of qualified immunity.
B. Substantive Due Process
{¶73} Jones cannot avoid Stoker’s and Lewis’s claim of qualified immunity
with respect to the substantive-due-process claim unless the facts shown, when
viewed in the light most favorable to her, demonstrate that their actions violated a
clearly established substantive-due-process right.
{¶74} The United States Supreme Court has noted that the contours of the
due-process clause “guarantee more than fair process and * * * cover a substantive
sphere as well, barring certain government actions regardless of the fairness of the
procedures used to implement them.” (Internal citation and quotations omitted.)
Cty. of Sacramento v. Lewis, 523 U.S. 833, 840, 118 S.Ct. 1708, 140 L.E.2d 1043
(1998).
{¶75} With respect to the substantive-due-process claim, Jones’s amended
complaint stated, in part, as follows:
Defendants are state actors and acted under color of state law as to
the matters set forth above with the intent to deprive Plaintiff[] of
25 OHIO FIRST DISTRICT COURT OF APPEALS
[her] constitutional right to due process and opportunity to be
heard before being denied a protected property interest.
Plaintiff[] ha[s] a significant property interest in continued
residency at [her] rental home which is subject to the requirement
of due process.
Defendants’ acts and omissions as stated above deprived Plaintiff[]
of [her] significant property interest in continued residency in the
rental home * * * .
{¶76} Jones essentially argued that the acts and omissions that deprived her
of property without procedural due process also violated her Fourteenth Amendment
substantive-due-process rights because Stoker’s and Lewis’s actions were an
arbitrary and capricious abuse of power and they lacked a rational basis for the
deprivation. The trial court determined that genuine issues of material fact on this
issue precluded summary judgment.
{¶77} Stoker and Lewis argue that substantive-due-process claims are
limited to claims involving the violation of protected liberty interests only, and not
merely the deprivation of a property interest, which is protected by procedural due
process. They argue also that there is no separate substantive-due-process right at
issue, citing Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct. 807, 127 L.Ed.2d 114
(1994). The Albright court held that “where a particular Amendment ‘provides an
explicit textual source of constitutional protection’ against a particular source of
government behavior, ‘that Amendment, not the more generalized notion of
substantive due process, must be the guide for analyzing these claims.’ ” Id.
{¶78} Jones argues that substantive due process protects property interests
as well as liberty interests. In support, Jones cites EJS Properties, LLC v. City of
26 OHIO FIRST DISTRICT COURT OF APPEALS
Toledo, 698 F.3d 845 (6th Cir.2012). In that case, involving a zoning decision, the
Sixth Circuit reiterated that substantive due process mandates that “ ‘state legislative
and administrative actions depriving the citizen of life, liberty, or property must
have some rational basis.’ ” (Emphasis added.) Id. at 862, quoting Pearson v. City of
Grand Blanc, 961 F.2d 1211, 1223 (6th Cir.1992).
{¶79} We decline to elaborate on the scope of the protections afforded by
the substantive component, as opposed to procedural component, of the due process
clause, except to hold that Jones’s reliance on the former in this case is misplaced.
She alleged only the deprivation of a property right, not the deprivation of a
“fundamental right” protected by the substantive component of the Due Process
Cause.
{¶80} “The Due Process Clause provides that certain substantive rights—
life, liberty, and property—cannot be deprived except pursuant to constitutionally
adequate procedures.” Cleveland Bd. of Edn. v. Loudermill, 470 U.S. 532, 541, 105
S.Ct. 1487, 84 L.Ed.2d 494 (1985). “The categories of substance and procedure are
distinct.” Id. As Justice Powell explained, “[n]ot every [property ] right is entitled to
the protection of substantive due process. While property interests are protected by
procedural due process even though the interest is derived from state law rather than
the Constitution, substantive-due-process rights are created only by the
Constitution.” (Internal citation omitted.) Regents of Univ. of Michigan v. Ewing,
474 U.S. 214, 229, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985) (Powell, J., concurring
separately). See Charles v. Baesler, 910 F.2d 1349, 1354 (6th Cir.1990).
{¶81} The question, then, is whether Jones’s interest asserted here—her
continued residency in her rented apartment—“bears a resemblance to the
fundamental interests that previously have been viewed as implicitly protected by the
27 OHIO FIRST DISTRICT COURT OF APPEALS
Constitution.” Ewing at 229. Jones’s interest, boiled down to its essence, is a state-
law contract right. While this property right is very important, Jones has established
only that she has this property right—not that it is a fundamental right. Because
Jones has not demonstrated a substantive fundamental right to continued residency
in her rented apartment, we conclude that Stoker and Lewis were entitled to
qualified immunity on the substantive-due-process-based 42 U.S.C. 1983 claim.
V. Partial Summary Judgment for Jones
{¶82} In its second assignment of error, the city argues that the trial court
erred by granting partial summary judgment to Jones. Jones moved for summary
judgment against the city and Stoker in his official capacity on count four of the
complaint, the 42 U.S.C. 1983 claim, based on a procedural-due-process violation.
The trial court held that Jones had established a due-process violation, and it
granted summary judgment to Jones on that portion of her procedural-due-process-
based 42 U.S.C. 1983 claim against the municipality.
{¶83} We addressed the issue of the due-process violation to the extent
necessary to resolve the issue of qualified immunity, consistent with the scope of our
jurisdiction. In the context of the qualified-immunity analysis, we affirmed the trial
court’s determination that Jones had shown the violation of her clearly established
procedural-due-process right to a predeprivation hearing. In accordance with this
holding, we overrule the second assignment of error.
VI. Conclusion
{¶84} Upon our determination that issues of fact remain as to whether, for
purposes of the immunity afforded under R.C. 2744.03(A)(6), Stoker’s and Lewis’s
conduct was wanton, willful, in bad faith, or reckless, we affirm the trial court’s
denial of summary judgment to those employee defendants on their claim of state-
28 OHIO FIRST DISTRICT COURT OF APPEALS
law immunity. We reverse the trial court’s denial of summary judgment to Stoker, in
his official capacity, on his claim of state-law immunity, upon our determination that
the political-subdivision-immunity analysis applies and that no issue of material fact
remains as to Norwood’s immunity.
{¶85} Additionally, we affirm the trial court’s denial of summary judgment
to Stoker on his claim of qualified immunity, upon our determination that the record
contains evidence that he violated Jones’s clearly established procedural-due-process
rights when, in the absence of exigent circumstances, he authorized the issuance and
enforcement of an emergency vacate order. Likewise, upon our determination that
the record contains some evidence supporting a finding that Lewis knew that Stoker
was issuing the emergency vacate order in violation of Jones’s procedural-due-
process rights, we affirm the trial court’s denial of summary judgment to Lewis on
his claim of qualified immunity.
Judgment affirmed in part, reversed in part, and cause remanded.
SUNDERMANN, P.J., and HENDON, J., concur.
J. HOWARD SUNDERMANN, retired, from the First Appellate District, sitting by assignment.
Please note:
The court has recorded its own entry on the date of the release of this opinion.