NOT RECOMMENDED FOR PUBLICATION File Name: 22a0184n.06
Case No. 21-3684
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED ) May 02, 2022 MT. PLEASANT BLACKTOPPING DEBORAH S. HUNT, Clerk ) COMPANY, INC., ) Plaintiff-Appellant, ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR v. ) THE SOUTHERN DISTRICT OF ) OHIO GREENE COUNTY, OHIO; RONALD S. ) VOLKERDING; INVERNESS GROUP, ) INC., ) Defendants-Appellees. ) )
Before: McKEAGUE, GRIFFIN, and READLER, Circuit Judges.
CHAD A. READLER, Circuit Judge. Greene County, Ohio, administers its sanitary
sewer system infrastructure though a series of governing regulations. When one of those
regulations was enforced against a contractor following its installation of several sewer lines, the
contractor challenged the regulation as being both arbitrarily enforced and impermissibly vague.
The district court, however, disagreed with the contractor’s arguments and granted summary
judgment to defendants. We affirm.
BACKGROUND
The Greene County Sanitary Engineering Department oversees the County’s sewer system.
Relevant here is a County requirement that sewer lines pass the Department’s T-V camera Case No. 21-3684, Mt. Pleasant Blacktopping Co., Inc., v. Greene County, et al.
inspection, which determines if there is too much standing water in a line. That requirement is
codified in § 3.9.8 of the County’s Specifications and Regulations, which the County promulgates
under Ohio law. See Ohio Rev. Code §§ 6103.02, 6117.01, 343.01. In accordance with § 3.9.8,
the test begins by flushing the sewer line with water. After the line is flushed, a camera is placed
in the line so that “the bottom of the lens coincides with twenty-five percent (25%) of the diameter
of the sewer line.” If “the camera lens encounter[s] standing water” as the camera travels through
the line, “the sanitary sewer in that area shall be considered unacceptable and shall be dug up and
replaced.”
That regulatory backdrop sets the stage for today’s dispute. Mt. Pleasant Blacktopping, an
infrastructure contractor, was hired by Inverness Group, a real estate developer, to install sewer
lines for Inverness’s Sugar Creek housing development in Greene County. Once the lines were
installed, they were inspected by the County’s Sanitary Engineering Department. As he watched
video footage from a camera placed in the lines to examine their condition, a Department inspector
noticed that “[t]here was significant water laying in a couple spots.” Though all agree that the
camera filmed standing water in the lines, it is unclear whether the camera lens made contact with
that water. The inspector reported the issue to his supervisor. Several Department employees,
including Ronald Volkerding, the sanitary engineer and director of the Department, watched the
video. Together, they determined that two of the sewer lines failed the T-V inspection, meaning
that they were “unacceptable,” as that term is used § 3.9.8, and, as a result, must be replaced. Mt.
Pleasant, however, refused to replace the lines.
Instead, the company sued Greene County and Volkerding (in both his official and
individual capacity) and joined Inverness as a necessary party. The complaint asserted a § 1983
claim against Greene County and Volkerding, along with various state-law claims. Inverness filed
2 Case No. 21-3684, Mt. Pleasant Blacktopping Co., Inc., v. Greene County, et al.
a counterclaim against Mt. Pleasant, alleging that Mt. Pleasant’s refusal to replace the lines at issue
breached a contract between the two parties. Following discovery, the parties filed cross motions
for summary judgment. The district court granted Greene County and Volkerding’s motion as to
Mt. Pleasant’s § 1983 claim. The district court then declined to exercise supplemental jurisdiction
over the state-law claims and dismissed the case. Mt. Pleasant timely appealed the district court’s
grant of summary judgment.
ANALYSIS
We review the district court’s summary judgment decision de novo. M.J. ex rel. S.J. v.
Akron City Sch. Dist. Bd. of Educ., 1 F.4th 436, 445 (6th Cir. 2021). In so doing, we construe the
evidence and draw all reasonable inferences in Mt. Pleasant’s favor. Id. Greene County and
Volkerding are entitled to summary judgment if they show “that there is no genuine dispute as to
any material fact” and that they are “entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
According to Mt. Pleasant, Department employees “traditionally and consistently
construed and applied” § 3.9.8 to mean that a sewer line was unacceptable only if the camera lens
“c[a]me into contact with” standing water in the line. Yet when inspecting Mt. Pleasant’s lines,
Department employees, for the first and only time, says Mt. Pleasant, applied § 3.9.8 to deem a
line unacceptable if the camera merely saw standing water in the line. Such incorrect and arbitrary
enforcement, Mt. Pleasant contends, violated its Fourteenth Amendment rights to substantive due
process and equal protection. And § 3.9.8 itself, Mt. Pleasant claims, is unconstitutionally vague
as applied because it allows for such arbitrary enforcement.
1. We begin with Mt. Pleasant’s § 1983 claim against Volkerding, in both his individual
and official capacities. Volkerding asserts that he is entitled to qualified immunity as to the
individual capacity claim. With Volkerding having raised the issue, Mt. Pleasant bears “the burden
3 Case No. 21-3684, Mt. Pleasant Blacktopping Co., Inc., v. Greene County, et al.
of showing that [Volkerding] is not entitled to qualified immunity.” Jacobs v. Alam, 915 F.3d
1028, 1039 (6th Cir. 2019). To satisfy that burden, Mt. Pleasant must make two showings. One,
that Volkerding violated a constitutional right. Pearson v. Callahan, 555 U.S. 223, 232 (2009).
And two, that the right was clearly established at the time of the violation. Id. We may consider
these questions in either order. Id. at 236.
Here, we can sidestep the first inquiry, as Mt. Pleasant plainly fails the second. With
respect to its burden to demonstrate a “clearly established” constitutional violation, Mt. Pleasant,
in its briefing before both this Court and the district court, failed to “identify a case that put
[Volkerding] on notice that his specific conduct was unlawful” and to show that this is an “obvious
case” where general “standards can ‘clearly establish’ the answer, even without a body of relevant
case law.” Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 8 (2021) (per curiam) (citation omitted).
Indeed, it made no argument at all as to qualified immunity, clearly failing to carry its burden.
Accordingly, Volkerding is entitled to qualified immunity. See id.; see also Thomas v. City of
Columbus, 854 F.3d 361, 364 (6th Cir. 2017) (“We may affirm a decision of the district court for
any reason supported by the record, including on grounds different from those on which the district
court relied.” (quotation omitted)).
As to Mt.
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NOT RECOMMENDED FOR PUBLICATION File Name: 22a0184n.06
Case No. 21-3684
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED ) May 02, 2022 MT. PLEASANT BLACKTOPPING DEBORAH S. HUNT, Clerk ) COMPANY, INC., ) Plaintiff-Appellant, ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR v. ) THE SOUTHERN DISTRICT OF ) OHIO GREENE COUNTY, OHIO; RONALD S. ) VOLKERDING; INVERNESS GROUP, ) INC., ) Defendants-Appellees. ) )
Before: McKEAGUE, GRIFFIN, and READLER, Circuit Judges.
CHAD A. READLER, Circuit Judge. Greene County, Ohio, administers its sanitary
sewer system infrastructure though a series of governing regulations. When one of those
regulations was enforced against a contractor following its installation of several sewer lines, the
contractor challenged the regulation as being both arbitrarily enforced and impermissibly vague.
The district court, however, disagreed with the contractor’s arguments and granted summary
judgment to defendants. We affirm.
BACKGROUND
The Greene County Sanitary Engineering Department oversees the County’s sewer system.
Relevant here is a County requirement that sewer lines pass the Department’s T-V camera Case No. 21-3684, Mt. Pleasant Blacktopping Co., Inc., v. Greene County, et al.
inspection, which determines if there is too much standing water in a line. That requirement is
codified in § 3.9.8 of the County’s Specifications and Regulations, which the County promulgates
under Ohio law. See Ohio Rev. Code §§ 6103.02, 6117.01, 343.01. In accordance with § 3.9.8,
the test begins by flushing the sewer line with water. After the line is flushed, a camera is placed
in the line so that “the bottom of the lens coincides with twenty-five percent (25%) of the diameter
of the sewer line.” If “the camera lens encounter[s] standing water” as the camera travels through
the line, “the sanitary sewer in that area shall be considered unacceptable and shall be dug up and
replaced.”
That regulatory backdrop sets the stage for today’s dispute. Mt. Pleasant Blacktopping, an
infrastructure contractor, was hired by Inverness Group, a real estate developer, to install sewer
lines for Inverness’s Sugar Creek housing development in Greene County. Once the lines were
installed, they were inspected by the County’s Sanitary Engineering Department. As he watched
video footage from a camera placed in the lines to examine their condition, a Department inspector
noticed that “[t]here was significant water laying in a couple spots.” Though all agree that the
camera filmed standing water in the lines, it is unclear whether the camera lens made contact with
that water. The inspector reported the issue to his supervisor. Several Department employees,
including Ronald Volkerding, the sanitary engineer and director of the Department, watched the
video. Together, they determined that two of the sewer lines failed the T-V inspection, meaning
that they were “unacceptable,” as that term is used § 3.9.8, and, as a result, must be replaced. Mt.
Pleasant, however, refused to replace the lines.
Instead, the company sued Greene County and Volkerding (in both his official and
individual capacity) and joined Inverness as a necessary party. The complaint asserted a § 1983
claim against Greene County and Volkerding, along with various state-law claims. Inverness filed
2 Case No. 21-3684, Mt. Pleasant Blacktopping Co., Inc., v. Greene County, et al.
a counterclaim against Mt. Pleasant, alleging that Mt. Pleasant’s refusal to replace the lines at issue
breached a contract between the two parties. Following discovery, the parties filed cross motions
for summary judgment. The district court granted Greene County and Volkerding’s motion as to
Mt. Pleasant’s § 1983 claim. The district court then declined to exercise supplemental jurisdiction
over the state-law claims and dismissed the case. Mt. Pleasant timely appealed the district court’s
grant of summary judgment.
ANALYSIS
We review the district court’s summary judgment decision de novo. M.J. ex rel. S.J. v.
Akron City Sch. Dist. Bd. of Educ., 1 F.4th 436, 445 (6th Cir. 2021). In so doing, we construe the
evidence and draw all reasonable inferences in Mt. Pleasant’s favor. Id. Greene County and
Volkerding are entitled to summary judgment if they show “that there is no genuine dispute as to
any material fact” and that they are “entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
According to Mt. Pleasant, Department employees “traditionally and consistently
construed and applied” § 3.9.8 to mean that a sewer line was unacceptable only if the camera lens
“c[a]me into contact with” standing water in the line. Yet when inspecting Mt. Pleasant’s lines,
Department employees, for the first and only time, says Mt. Pleasant, applied § 3.9.8 to deem a
line unacceptable if the camera merely saw standing water in the line. Such incorrect and arbitrary
enforcement, Mt. Pleasant contends, violated its Fourteenth Amendment rights to substantive due
process and equal protection. And § 3.9.8 itself, Mt. Pleasant claims, is unconstitutionally vague
as applied because it allows for such arbitrary enforcement.
1. We begin with Mt. Pleasant’s § 1983 claim against Volkerding, in both his individual
and official capacities. Volkerding asserts that he is entitled to qualified immunity as to the
individual capacity claim. With Volkerding having raised the issue, Mt. Pleasant bears “the burden
3 Case No. 21-3684, Mt. Pleasant Blacktopping Co., Inc., v. Greene County, et al.
of showing that [Volkerding] is not entitled to qualified immunity.” Jacobs v. Alam, 915 F.3d
1028, 1039 (6th Cir. 2019). To satisfy that burden, Mt. Pleasant must make two showings. One,
that Volkerding violated a constitutional right. Pearson v. Callahan, 555 U.S. 223, 232 (2009).
And two, that the right was clearly established at the time of the violation. Id. We may consider
these questions in either order. Id. at 236.
Here, we can sidestep the first inquiry, as Mt. Pleasant plainly fails the second. With
respect to its burden to demonstrate a “clearly established” constitutional violation, Mt. Pleasant,
in its briefing before both this Court and the district court, failed to “identify a case that put
[Volkerding] on notice that his specific conduct was unlawful” and to show that this is an “obvious
case” where general “standards can ‘clearly establish’ the answer, even without a body of relevant
case law.” Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 8 (2021) (per curiam) (citation omitted).
Indeed, it made no argument at all as to qualified immunity, clearly failing to carry its burden.
Accordingly, Volkerding is entitled to qualified immunity. See id.; see also Thomas v. City of
Columbus, 854 F.3d 361, 364 (6th Cir. 2017) (“We may affirm a decision of the district court for
any reason supported by the record, including on grounds different from those on which the district
court relied.” (quotation omitted)).
As to Mt. Pleasant’s claim against Volkerding in his official capacity, that claim is properly
construed as a claim against Greene County. See Pineda v. Hamilton County, 977 F.3d 483, 494
(6th Cir. 2020); Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“As long as the government entity
receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than
name, to be treated as a suit against the entity.”).
2(a). That takes us to Mt. Pleasant’s § 1983 claim against Greene County. One aspect of
that claim challenges the purported arbitrary enforcement of § 3.9.8 against Mt. Pleasant.
4 Case No. 21-3684, Mt. Pleasant Blacktopping Co., Inc., v. Greene County, et al.
Mt. Pleasant grounds that theory in both substantive due process and equal protection principles.
When a plaintiff asserts a § 1983 claim against a municipality, commonly known as a Monell
claim, the plaintiff must prove both that (1) it “suffered a constitutional violation” and (2) “a
municipal policy or custom directly caused the violation.” Hardrick v. City of Detroit, 876 F.3d
238, 243 (6th Cir. 2017); see also Winkler v. Madison County, 893 F.3d 877, 901 (6th Cir. 2018)
(listing the four ways by which a plaintiff can prove a municipality had a “policy or custom” that
directly caused a constitutional violation).
Mt. Pleasant has not identified a Greene County policy or custom that caused the alleged
constitutional violations. Rather, it focuses solely on the one-time, allegedly unconstitutional acts
of the Department’s employees in conducting the T-V camera inspection of its sewer lines, without
tying those acts to County policy or custom. Indeed, Mt. Pleasant’s theory is that this case is the
exception to the way County policy typically is implemented. Because this alleged exception is
not a “policy or custom,” Mt. Pleasant has failed to establish a Monell violation. See Hardrick,
876 F.3d at 243–44; Siefert v. Hamilton County, 951 F.3d 753, 767 (6th Cir. 2020).
Even if Mt. Pleasant did properly brief its Monell claim, we agree with the district court
that its claims fail. Mt. Pleasant has a heavy burden to establish either its asserted substantive due
process claim or equal protection “class of one” claim. See Warren v. City of Athens, 411 F.3d
697, 707–08 (6th Cir. 2005); Loesel v. City of Frankenmuth, 692 F.3d 452, 461–62 (6th Cir. 2012).
These high bars guard against needlessly second-guessing the decisions of local governments.
And as Mt. Pleasant fails to turn its dispute with Greene County into a constitutional tort, we affirm
the grant of summary judgment to Greene County. See Thomas, 854 F.3d at 364.
2(b). We arrive at the same conclusion as to Mt. Pleasant’s claim that § 3.9.8 is
unconstitutionally vague as applied. Mt. Pleasant’s claim faces a high bar, as “[f]ew statutes meet
5 Case No. 21-3684, Mt. Pleasant Blacktopping Co., Inc., v. Greene County, et al.
the void-for-vagueness threshold.” United States v. Kettles, 970 F.3d 637, 650 (6th Cir. 2020).
A statute may be unconstitutionally vague if it either (1) “fails to provide people of ordinary
intelligence a reasonable opportunity to understand what conduct it prohibits” or (2) “authorizes
or even encourages arbitrary and discriminatory enforcement.” Johnson v. Morales, 946 F.3d 911,
929 (6th Cir. 2020) (citation omitted). Under the latter, a law is impermissibly vague if it
“delegates basic policy matters to [officials] for resolution on an ad hoc and subjective basis.”
Ass’n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 551 (6th Cir. 2007) (citation
omitted).
Assuming for Monell purposes that § 3.9.8 is Greene County’s official policy, it is not
unconstitutionally vague. Mt. Pleasant expressly abandons the first method of proving vagueness,
acknowledging that § 3.9.8 has a “specific meaning” and is not “vague and ambiguous.” That
leaves the second method. On this point, Mt. Pleasant concedes that the text of § 3.9.8 provides
an objective standard: if the camera lens encounters standing water, the line is unacceptable. And
it agrees that for more than 20 years, “Greene County had been abiding by that meaning,” other
than as to its two rejected sewer lines. Yet despite, in Mt. Pleasant’s words, the “definite meaning”
of § 3.9.8, Department employees enforced the regulation arbitrarily and discriminatorily as to its
lines. But allegedly arbitrary or inconsistent enforcement of a regulation whose terms are
unambiguous does not render the regulation impermissibly vague. See 600 Marshall Ent.
Concepts, LLC v. City of Memphis, 705 F.3d 576, 586–87 (6th Cir. 2013); PHN Motors, LLC v.
Medina Township, 498 F. App’x 540, 547–48 (6th Cir. 2012). As applied to Mt. Pleasant, then,
§ 3.9.8 is not unconstitutionally vague.
6 Case No. 21-3684, Mt. Pleasant Blacktopping Co., Inc., v. Greene County, et al.
* * * * * For the foregoing reasons, we affirm the district court’s grant of summary judgment to
Greene County and Volkerding, and we dismiss Mt. Pleasant’s motion to strike Inverness as moot.