# Correnti v. City of Cleveland

> District Court, N.D. Ohio · November 21, 2022

URL: https://www.frixlaw.com/law-library/cases/10371532

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** November 21, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

JOHN CORRENTI, ) Case No. 1:21-cv-02372
)
Plaintiff, ) Judge J. Philip Calabrese
)
v. )
)
CITY OF CLEVELAND, et al., )
)
Defendants. )
)

OPINION AND ORDER
Plaintiff John Correnti filed suit against the City of Cleveland, four John Doe
individuals, and one John Doe corporation alleging violations of his property rights
when the City demolished the structure on real property he owns either without
notice or mistaking it for another property. Specifically, Plaintiff asserts claims for
common-law negligence and under Section 1983 for violation of his federal civil
rights. Defendants move to dismiss based on the applicable statute of limitations and
for failure to state a claim under Rule 12(b)(6). (ECF No. 21.) For the reasons that
follow, the Court GRANTS Defendants’ motion to dismiss Plaintiff’s Section 1983
claim and declines to exercise supplemental jurisdiction over Plaintiff’s remaining
negligence claim.
FACTUAL AND PROCEDURAL BACKGROUND
According to the amended complaint, Plaintiff John Correnti owned real
property in Cleveland, Ohio. (ECF No. 20, ¶ 3, PageID #84.) After purchasing the
property, Mr. Correnti hired contractors for its rehabilitation. (Id., ¶ 3, PageID #84.)
On November 1, 2018, the City issued four permits for Mr. Correnti to fix certain
violations and undertake various repairs at the property. (Id., PageID #88–91.) Just
over a year later, on December 19, 2019, Mr. Correnti alleges that he received a bill

for the cost of demolition of the structure on the property. (Id., ¶ 3, PageID #84.)
According to the complaint, Mr. Correnti did not know when the demolition occurred
and only learned about it when he received the bill. (Id.) He maintains that the City
either demolished the wrong structure or failed to provide notice to him. (Id., ¶ 6.)
On December 20, 2021, Plaintiff filed a complaint against the City of Cleveland
and five unnamed parties, referred to as “John Does 1–4 and John Doe Corporation.”

(ECF No. 1.) Later, Plaintiff amended his complaint and alleged two causes of action:
(1) common-law negligence (Count I); and (2) constitutional violations under 42
U.S.C. § 1983 (Count II). (ECF No. 20, ¶¶ 11–18, PageID #84–86.) With respect to
Section 1983, Plaintiff alleges of his “right to own property free of molestation of the
government,” a taking without just compensation, and a due process violation
because of the alleged lack of notice. (Id., ¶ 12, PageID #85.) Against the City,
Plaintiff alleges that the City developed and maintains policies, practices, or customs

that allowed these violations to occur and that exhibit deliberate indifference to the
constitutional rights of Mr. Correnti and other property owners. (Id., ¶¶ 13, 15 & 18,
PageID #85–86.) Defendants move to dismiss based on the applicable statute of
limitations and for failure to state a claim under Rule 12(b)(6). (ECF No. 21.)
ANALYSIS
To survive a motion to dismiss, a complaint must “contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A complaint “states a claim for relief that is plausible, when
measured against the elements” of the cause of action asserted. Darby v. Childvine,
Inc., 964 F.3d 440, 444 (6th Cir. 2020) (citing Binno v. American Bar Ass’n, 826 F.3d
338, 345–46 (6th Cir. 2016)). To meet Rule 8’s pleading standard, a complaint must
plead “factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556). To state a claim, a complaint must “raise a right to relief
above the speculative level” into the “realm of plausible liability.” Twombly, 550 U.S.
at 555.
In assessing plausibility, the Court construes factual allegations in the
complaint in the light most favorable to the plaintiff, accepts the factual allegations
of the complaint as true, and draws all reasonable inferences in the plaintiff’s favor.

Wilburn v. United States, 616 F. App’x 848, 852 (6th Cir. 2015). In reviewing a motion
to dismiss, the Court distinguishes between “well-pled factual allegations,” which it
must treat as true, and “naked assertions,” which it need not. Iqbal, 556 U.S. at 628.
The Court will also not accept as true “[c]onclusory allegations or legal conclusions
masquerading as factual allegations[.]” Eidson v. Tennessee Dep’t of Children’s
Servs., 510 F.3d 631, 634 (6th Cir. 2007).
On a motion under Rule 12(b)(6), the Court’s inquiry is limited to the content
of the complaint, although matters of public record, orders, items appearing in the
record of the case, and exhibits attached to or made part of the complaint may also

be taken into account. Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001).
Defendants attach three documents to their motion to dismiss: a general warranty
deed for the real property located at 3682 East 149th Street, in Cleveland, Ohio;
notices of violation of building and housing ordinances; and photos of condemnation
notices that were posted on the property. (ECF No. 21-1; ECF No. 21-2; ECF No. 21-
3.) In response, Plaintiff requests the Court to treat Defendants’ motion as one for

summary judgment under Rule 56(d) and defer ruling on the motion to allow Plaintiff
time to conduct discovery. (ECF No. 25, PageID #125–26.) At this stage of the
proceedings, the Court does not consider matters outside the pleadings in resolving
Defendants’ motion. Therefore, the Court declines Plaintiff’s request, and gives no
consideration to them. In resolving Defendants’ motion, the Court limits its inquiry
to the allegations of the complaint, including the four permits Plaintiff made part of
the pleading.

I. Statute of Limitations
A two-year statute of limitations governs Section 1983 claims, Banks v. City of
Whitehall, 344 F.3d 550, 553 (6th Cir. 2003) (citing Browning v. Pendleton, 869 F.2d
989 (6th Cir. 1989)), including those relating to takings and code enforcement, LRL
Props. v. Portage Metro Hous. Auth., 55 F.3d 1097, 1105 (6th Cir. 1995). Federal law
governs when a Section 1983 claim accrues. A to Z, Inc. v. City of Cleveland, 281 F.
App’x 458, 459 (6th Cir. 2008) (citing Cooey v. Strickland, 479 F.3d 412, 416 (6th Cir.
2007)). A cause of action accrues “when the plaintiff has a complete and present cause
of action, that is, when the plaintiff can file suit and obtain relief.” D’Ambrosio v.
Marion, 747 F.3d 378, 384 (6th Cir. 2014) (cleaned up). In other words, a cause of

action accrues when the plaintiff knew of or should have known of the injury which
forms the basis of his claims. Eidson v. State of Tennessee Dep’t of Children’s Servs.,
510 F.3d 631, 635 (6th Cir. 2007) (citation omitted).
Defendants argue that Plaintiff’s cause of action accrues on the date of the
demolition—December 26, 2018. (ECF No. 21, PageID #98–99.) In support,
Defendants point to the parties’ initial disclosures as proof that Plaintiff had

knowledge of the demolition. (Id., PageID #99.) Again, a motion to dismiss limits the
materials the Court may consider; therefore, the Court will not consider initial
disclosures in resolving the pending motion. At the very latest, according to the
amended complaint, Plaintiff did not have notice of the demolition until December
19, 2019, the date on which Mr. Correnti received a bill for the costs of the demolition.
(ECF No. 20, ¶ 3, PageID #84.) But he did not file suit until December 20, 2021.
For purposes of determining whether Plaintiff missed timely filing suit by one

day, two years after December 19, 2019 falls on Sunday, December 19, 2021 (if
counting by year or by same day of the month) or Saturday, December 18, 2021 (if
counting by days). Either way, Rule 6, which applies when “any statute . . . does not
specify a method of computing time,” provides that, if the deadline falls on a Saturday
or Sunday, then “the period continues to run until the end of the next [business] day.”
Fed. R. Civ. P. 6(a)(1)(C). For this reason, at this stage of the proceedings, Plaintiff
timely filed his complaint. However, discovery might show that Mr. Correnti had
knowledge before December 19, 2021, in which case the statute of limitations would
bar his claims.

II. Failure to State a Claim
Next, Defendants argue that Plaintiff fails to state a claim for municipal
liability under Section 1983. (ECF No. 21, PageID #100–01; ECF No. 26, PageID
#137.) “Section 1983 creates a federal cause of action against ‘any person’ who
deprives someone of a federal constitutional right while acting under color of state
law.” Red Zone 12 LLC v. City of Columbus, 758 F. App’x 508, 515 (6th Cir. 2019)
(citing Monell v. Department of Soc. Servs., 436 U.S. 658, 691–92 (1978)). “A city can

be a ‘person’ for the sake of a § 1983 claim.” Id. (citing Monell, 436 U.S. at 690). “But
[the city] cannot be held liable under § 1983 on a respondeat superior theory—or, in
other words, because it employs a tortfeasor.” Id. (citing Monell, 436 U.S. at 691).
Rather, a local government may be sued under Section 1983 only “when execution of
a government’s policy or custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official policy, inflicts the injury.”

Monell, 436 U.S. at 694. “The ‘touchstone,’ then, is an ‘official policy’ that causes the
alleged constitutional violation.” Red Zone 12 LLC, 758 F. App'x at 515 (citing
Monell, 436 U.S. at 691).
A plaintiff can establish such a “policy or custom” by demonstrating “(1) the
existence of an illegal official policy or legislative enactment; (2) that an official with
final decision making authority ratified illegal actions; (3) the existence of a policy of
inadequate training or supervision; or (4) the existence of a custom of tolerance or
acquiescence of federal rights violations.” Osberry v. Slusher, 750 F. App’x 385, 397
(6th Cir. 2018) (quoting Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013)). Monell
holds that municipalities may be liable for the constitutional violations of their

employees only where the municipality’s policy or custom led to the violation. Monell,
436 U.S. at 694–95.
Defendants argue that Plaintiff’s Section 1983 claim fails because he did not
identify an “official policy that was the moving force behind the alleged deprivation
of constitutional rights he claims to have suffered.” (ECF No. 21, PageID #101; see
also ECF No. 26, PageID #137.) In the amended complaint, Plaintiff has not

identified a policy or custom that led to a violation of his constitutional rights. No
facts alleged in the amended complaint describe an unofficial municipal policy,
practice, or custom. To the extent the amended complaint mentions one, it does so
only in conclusory terms. But without alleging facts pointing to “an official municipal
policymaker under the circumstances,” Plaintiff cannot establish a claim that the
City is liable. Red Zone 12 LLC, 758 F. App'x at 516 (cleaned up). A city is liable
under Section 1983 “only if the challenged conduct occurs pursuant to [the city’s]

‘official policy’ such that [the city’s] promulgation can be said to have ‘caused’ one of
its employees to violate the plaintiff’s rights.” D’Ambrosio, 747 F.3d at 386 (quoting
Monell, 436 U.S. at 692). Plaintiff fails to make such a showing against the City.
That leaves Plaintiff’s claims against the Doe Defendants. The amended
complaint contains no factual allegations directed at them. (ECF No. 20, ¶¶ 11–18,
PageID #85–86.) Therefore, the Court concludes that Plaintiff fails to state a claim
against the Doe Defendants as well and GRANTS Defendant’s motion to dismiss the
claim under Section 1983.
III. Supplemental Jurisdiction

“When all federal claims are dismissed before trial, the balance of
considerations usually will point to dismissing the state law claims.” Musson
Theatrical, Inc. v. Federal Express Corp., 89 F.3d 1244, 1254 (6th Cir. 1996).
Pursuant to 28 U.S.C. § 1367(c)(3), this Court “may decline to exercise supplemental
jurisdiction over a claim . . . if . . . [it] has dismissed all claims over which it has
original jurisdiction.” Because comity to State courts is a substantial interest, there
is “a strong presumption against the exercise of supplemental jurisdiction once

federal claims have been dismissed.” Packard v. Farmers Ins. Co. of Columbus, 423
F. App’x. 580, 584 (6th Cir. 2011). The Court should retain jurisdiction “only in cases
where the interests of judicial economy and the avoidance of multiplicity of litigation
outweigh [the] concern over needlessly deciding state law issues.” Id. (quoting Moon
v. Harrison Piping Supply, 465 F.3d 719, 728 (6th Cir. 2006)).
In exercising that discretion, the Court may consider the convenience to the

parties and expeditiousness in resolving the case. Long v. Bando Mfg. of Am., Inc.,
201 F.3d 754, 761 (6th Cir. 2000). Here, the case in its early stages, and the parties
have not engaged in significant discovery. Therefore, the factors that guide the
exercise of the Court’s discretion weigh against consideration of Plaintiff’s claim
under State law. “Normally, when a court declines to exercise supplemental
jurisdiction, the court dismisses the [State] claims without prejudice.” Bullock v. City
of Covington, 698 F. App'x 305, 307 (6th Cir. 2017). Therefore, the Court
DISMISSES Plaintiffs negligence claim WITHOUT PREJUDICE.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss
Plaintiff's Section 1983 claim and declines to exercise supplemental jurisdiction over
Plaintiffs negligence claim. Therefore, the Court DISMISSES Plaintiffs negligence
claim WITHOUT PREJUDICE.
SO ORDERED.
Dated: November 21, 2022

J.PhilipCalabrese
United States District Judge
Northern District of Ohio

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10371532. Public record. Not legal advice.