Opinion

Smith Land Company, Inc v. City of Fairlawn, Ohio

Court: District Court, N.D. Ohio
Filed: Sep 21, 2023
Cited by: 0 cases
Authority: More cited than 28.1%

“[W]e have made clear that the ‘driving force’ behind creation of the qualified immunity doctrine was a desire to ensure that ‘ “insubstantial claims” against government officials [will] be resolved prior to discovery. ”

How later courts described this case

“[W]e have made clear that the ‘driving force’ behind creation of the qualified immunity doctrine was a desire to ensure that ‘ “insubstantial claims” against government officials [will] be resolved prior to discovery. ”
holding the Eleventh Amendment barred claims against the Ohio EPA
“Plaintiff cites no case, and we can find none, that suggests that an individual may commit and be liable in damages for a ‘taking’ under the Fifth Amendment”
“Although a motion pursuant to Rule 12(b)(6

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

SMITH LAND COMPANY, INC., et al., ) CASE NO. 5:21-cv-1848

)

Plaintiffs, ) JUDGE CHARLES E. FLEMING

)

vs. )

) MEMORANDUM ORDER AND

THE CITY OF FAIRLAWN, OHIO, et al., ) OPINION

)

Defendant. )

Before the Court is Defendant Ohio Environmental Protection Agency (“Ohio EPA”) and

Defendant Ed Wilk’s (“Wilk”) Motion to Dismiss (ECF No. 28) Plaintiffs Smith Land Company

(“SLC”) and Robert G. Smith’s (“Smith”) Amended Complaint (ECF No. 19). For the reasons

discussed below, the Motion is GRANTED.

I. BACKGROUND

A. Factual Background

The allegations in this action arise from the subdivision, sale, designation as wetlands of,

and fill material placement on real property owned by Plaintiffs. (ECF No. 19., Am. Compl. at

PageID #389). Plaintiffs’ allegations are as follows:

1. Purchase and Subdivision of the Property

SLC purchased and sought to subdivide 9.7 acres of real property on Brunsdorph Drive in

Fairlawn, Ohio (the “Property”) in 1999. (Id. at PageID #390-91). To do so, SLC applied to

Defendant City of Fairlawn (“Fairlawn”) to subdivide the property into ten single-family

residential lots and Block A. (Id. at PageID #391). Fairlawn determined the Property contained

isolated wetlands, subject to the jurisdiction of the United States under the Clean Water Act (the

“CWA”). (Id.). To subdivide the Property, Fairlawn required a 404 Permit from the U.S. Army

Corps of Engineers (the “USACE”) to fill or impact the isolated wetlands. (Id.). On April 14,

2000, SLC obtained a 404 Permit from the USACE and a 401 Permit from the Ohio EPA, both of

which were valid until February 11, 2002. (Id.).

When SLC sought to further subdivide Block A into three single-family residential parcels,

it provided a copy of the 404 Permit to Fairlawn. (Id.). Fairlawn approved the subdivision of

Block A on April 18, 2000 and SLC filed deeds approved by Fairlawn subdividing Block A into

three parcels on May 19, 2000. (Id.).

2. Supreme Court Decision

On January 9, 2001, the Supreme Court decided Solid Waste Agency of Northern Cook Cty.

v. Army Corps of Engineers, 531 U.S. 159 (2001). (Id.). The Supreme Court held that the

migratory bird rule, which purported to extend jurisdiction of isolated wetlands on the Property to

the USACE, exceeded the authority granted under the CWA. (Id.). Thus, the isolated wetlands

on the Property were no longer within the jurisdiction of the USACE. (Id. at PageID #392).

3. Fairlawn Fills Block A

In February 2001, a road contractor for Fairlawn dumped fill on two parcels in Block A.

(Id. at PageID #391-92). Smith complained to Fairlawn that the dumping was unauthorized, and

Fairlawn sent the contractor to grade the dumped fill. (Id. at PageID #392). Plaintiffs allege they

were never given the opportunity to challenge Fairlawn’s dumping of fill. (Id. at PageID #400).

On July 17, 2001, Ohio enacted a permanent permitting process for impacting isolated wetlands,

O.R.C. § 611.02-029. (Id.).

4. Sale of Property

Defendants Shawn A. Herhold (“Herhold”) and Malavanh D. Rassavong (“Rassavong”)

contracted to purchase a Block A parcel (the “Herhold Parcel”) on July 11, 2002. (Id.). The

contract included a disclosure noting the Herhold Parcel had been designated as a wetland. (Id.).

On March 26, 2003, Timothy and Dawn Kensinger (collectively the “Kensingers”) contracted to

purchase a Block A parcel (the “Kensinger Parcel”). (Id. at PageID #393). The contract did not

include a disclosure noting that the Kensinger Parcel had been designated as a wetland. (Id. at

PageID #394).

In November 2003, William J. Roth (“Roth”), Mayor of Fairlawn, wrote the USACE

enquiring as to whether future owners of the Block A parcels would have to acquire USACE

authorization to impact wetlands on the parcels. (Id. at PageID #393). The USACE responded on

February 4, 2004, stating that a USACE permit was not required for impacts to wetlands on Block

A and advising to contact the Ohio EPA to determine the state permit requirements.1 (Id.). On

February 9, 2004, the Ohio EPA informed Fairlawn that owners of the Block A parcels will need

to apply for and receive an Isolated Wetland Permit (“IWP”) before impacting isolated wetlands.2

(Id. at PageID #393-34).

5. The Kensinger Lawsuit

The Kensingers applied to Fairlawn for a building permit and Fairlawn denied the

application, requiring the fill previously deposited by Fairlawn’s contactor to be removed. (Id. at

PageID #394). The Kensingers sued Plaintiffs for breach of contract, stating that they were not

aware that the Kensinger Parcel was a designated wetland that required a USACE permit in order

to obtain a building permit from Fairlawn. (Id.). Plaintiffs settled with the Kensingers and bought

the Kensinger Parcel back upon learning that its realtor did not provide the Kensingers with the

wetland disclosure. (Id.).

1 ECF No. 19-2, USACE-Fairlawn Letter at Page ID#430-31.

2ECF No. 19-3, Ohio EPA-Fairlawn Letter at Page ID#432.

6. Herhold Lawsuit One

On May 9, 2008, Herhold and Rassavong also sued the Plaintiffs for breach of contact and

fraud in state court. (Id. at PageID #395). The Plaintiffs refused to buy the Herhold Parcel back

because Herhold and Rassavong were provided with a wetland disclosure, a USACE permit was

issued for the fill Fairlawn’s contractor dumped on the parcel, and Fairlawn authorized the

dumping. (Id.). The Plaintiffs moved to dismiss and were denied, and in 2014, the case went to a

jury trial and judgment was for Herhold and Rassavong. (Id.). Thereafter, the judge recused, and

a new trial was ordered. (Id.).

7. Ohio EPA Public Records

After Herhold Lawsuit One, on May 4, 2015, Smith made a public records request to the Ohio

EPA for all records of Wilk. (Id. at PageID #398). Included in the records were Wilk’s calendar,

notes, and letters. (Id. at PageID #399).

a. The Wilk-Randles Letter

Wilk met with Herhold and Rassavong at the Herhold Parcel on May 27, 2005. (Id.). On

May 31, 2005, Wilk wrote a letter to Chris Randles (“Randles”), an employee of the Fairlawn

Building and Zoning Department.3 (Id.). The Wilk-Randles Letter stated that after walking the

Herhold Parcel, Wilk determined that the fill was mostly on the neighboring property to the north

of the Herhold Parcel and some fill activity occurred on the north boundary of the Herhold Parcel.

(Id.). Wilk also stated the amount of over-fill on the Herhold Parcel is minimal compared to the

adjacent property and removal of the over-fill is not required as long as the area is used as a buffer

zone between the fill permitted on the Herhold Parcel and the wetlands that should not have been

filled. (Id.). The Wilk-Randles Letter was sent to Herhold. (Id.).

3 ECF No. 19-4, Wilk-Randles Letter at Page ID#433.

b. The Wilk-Herhold Letter

On October 24, 2005, Wilk wrote Herhold.4 (Id. at PageID #400). The Wilk-Herhold

Letter stated that the fill previously dumped on the Herhold Parcel failed to comply with the

USACE limits. (Id.). It further stated that SLC overfilled the wetlands at the north property

boundary and since then, the wetlands have been determined to be regulated by the Ohio EPA.

(Id.). Wilk further stated “your decision was to have the excessive fill properly removed off site.

I have visited the site numerous times providing direction during the project.” (Id.). He also stated

that he visited the Herhold Parcel on the date of the letter to inspect the work and the excess fill

was removed, but it must also meet the conditions and approval of the Fairlawn Building and

Zoning Department. (Id.).

Plaintiffs allege they were never notified of a claim of overfill on the Herhold Parcel, any

violation of the USACE permit and/or the Ohio EPA regulation, or any enforcement action being

taken due to the overfill. (Id. at PageID #400, 403). They allege they first learned of the overfill

when they were served with a copy of the complaint for Herhold Lawsuit One. (Id. at PageID

#403).

c. The Wilk-White Tail Letter

On March 28, 2007, Wilk wrote to a property owner on White Tail Ridge Road in Fairlawn

regarding the property owner’s concern about the wetlands behind the homes on White Tail Ridge

Road that border the homes on Brunsdorph Road.5 (Id. at PageID #409). Wilk stated he visited

the area on March 21, 2007 and verified the conditions of the wetlands. (Id.). He also stated that

the USACE issued a permit allowing the fill of wetlands along the properties on Bunsdorph Road

and any additional impacts to wetlands will require a 401 permit from the Ohio EPA. (Id.).

4ECF No. 19-5, Wilk-Herhold Letter at Page ID#434.

5 ECF No. 19-7, Wilk-White Tail Letter at PageID #436.

d. Notice of Violation

On February 24, 2016, Wilk issued a Notice of Violation (“NOV”) against Plaintiffs for

unauthorized fill on both of the Block A parcels they owned.6 (Id.). Plaintiffs allege that Wilk

issued the NOV in retaliation for Plaintiffs’ public records request. (Id.). Plaintiffs allege the

NOV was mailed to Smith at an old address, where he no longer resided, and he did not receive it.

(Id.). Plaintiffs allege that Wilk issued the NOV to deliberately and unlawfully encumber

Plaintiffs’ parcels so that they could not be used for a single-family residence and prevent Plaintiffs

from marketing and selling their parcels. (Id. at PageID #411).

8. Herhold Lawsuit Two

The second trial was in July 2017. (Id.). Wilk was designated as the Ohio EPA’s

representative. (Id.). Wilk testified that he is an Ohio EPA 401 Coordinator and his job duties

include reviewing 401 permit applications, conducting pre-application meetings, reviewing

complaints of unauthorize fill, and enforcement. (Id. at PageID #398). Wilk also testified to the

measurements of the overfill and that mitigation was available in 2005 for $35,000 per acre,

approximately $442 for the Herhold Parcel. (Id. at PageID #403). Plaintiffs allege they were not

notified of Wilk’s involvement with the Herhold Parcel. (Id.). Wilk also testified that the USACE

would handle any violations on the Herhold Parcel until 2004. (Id. at PageID #410).

On September 19, 2017, the court issued a final order of judgment for Herhold and

Rassavong. (Id.). Plaintiffs filed a motion for judgment notwithstanding the verdict and new trial

that was denied on November 30, 2017. (Id.). The Ohio Ninth District Court of Appeals affirmed

the judgment on June 19, 2019. (Id.). The Ohio Supreme Court declined jurisdiction on October

15, 2019, and the U.S. Supreme Court denied certiorari on June 8, 2020. (Id.).

6 ECF No. 19-8, NOV at PageID #437.

9. Post-Lawsuit

After the second Herhold Trial, on September 28, 2017, Plaintiffs allege that they received

two Google Earth Pro photos (the “Block A Photos”), dated April 9, 2005 and February 28, 2006,

respectively. (Id. at PageID #404). Plaintiffs allege the Block A Photos show what Block A

looked like before Herhold and Rassavong removed the overfill from the Herhold Parcel and after.

(Id. at PageID #404-05). Plaintiffs assert the Block A Photos show that dirt from the Herhold

Parcel was improperly removed and dumped on SLC’s parcel. (Id. at PageID #405). Plaintiffs

contend that Wilk oversaw the improper removal of dirt from the Herhold Parcel and dumping on

SLC’s parcel. (Id.). Plaintiffs claim the Block A Photos also show that homes built to the south

of the Herhold Parcel have filled in wetlands. (Id.). Plaintiffs aver that the Block A Photos support

their claim that Fairlawn, Roth, Randles, Wilk, Herhold, and Rassavong engaged in conduct that

constitute or contributed to trespass on their parcel. (Id. at PageID #406).

10. Claims Against the Ohio EPA and/or Wilk

Count One of the Amended Complaint is brought under 42 U.S.C. § 1983, and alleges that

Fairlawn, Roth, Randles, Wilk, Herhold, and Rassavong conspired to deprive Plaintiffs of their

interest in the Property. (ECF No. 19, Am. Compl. at PageID #414-16).

Count Two of the Amended Complaint is brought under 42 U.S.C. § 1985(3), and alleges

that Fairlawn, Roth, Randles, Wilk, Herhold, Rassavong, and Skidmore conspired to deprive

Plaintiffs of equal protection of the law by conspiring to deprive them of their interest in the

Property. (Id. at PageID #417-18).

Count Three of the Amended Complaint is brought under 28 U.S.C. § 1367 for civil

conspiracy under Ohio law. (Id. at PageID #418). Plaintiff alleges that Fairlawn, Roth, Randles,

Wilk, Herhold, and Rassavong conspired to obtain a civil judgment against Plaintiffs in Herhold

Lawsuit Two, based on fabrication of a need to properly remove overfill from the Herhold Parcel.

Plaintiffs allege a conspiracy to commit fraud, trespass, and take property, including a judgment

against Plaintiffs for $284,889.29 plus interest. (Id. at PageID #418-20).

Count Six of the Amended Complaint is brought under Section 1983 and 28 U.S.C. § 1331,

alleging that Wilk deprived Plaintiffs of their private property, in violation of the Fifth Amendment

Takings Clause. (Id. at PageID #422-24).

Count Seven of the Amended Complaint is a request for permanent prospective injunction

against the Ohio EPA, Wilk, and Fairlawn, requesting this Court to permanently enjoin them from

enforcing or penalizing them based on the NOV. (Id. at PageID #424-25).

Count Nine of the Amended Complaint is a request for exemplary punitive damages against

Fairlawn, Roth, Randles, Wilk, Herhold, and Rassavong for their alleged conduct constituting

“conspiracy to commit fraud, trespass, and taking of [their parcels],” and denying Plaintiffs “of

equal protection of the law to commit trespass and the physical taking of [their parcels].” (Id. at

PageID #425-26).

Plaintiffs bring all claims against Wilk in his individual capacity only. (ECF Nos. 19, Am.

Compl. at PageID #390; 31, Opp. at PageID #871).

B. Procedural Background

Plaintiffs filed this action on September 28, 2021. (ECF No. 1, Compl.). Plaintiffs

subsequently filed an Amended Complaint on December 27, 2021. (ECF No. 19, Am. Compl.).

The Ohio EPA and Wilk filed their Motion to Dismiss the Amended Complaint (ECF No. 28) on

January 14, 2022. Plaintiffs filed their Opposition (ECF No. 31) on February 14, 2022. The Ohio

EPA and Wilk filed their Reply in Support of the Motion (ECF No. 34) on February 28, 2022.

II. LEGAL STANDARD

A. Federal Rule of Procedure 12(b)(1)

Federal courts have limited jurisdiction and possess only that power authorized by the U.S.

Constitution and federal statutes. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994).

Claims are presumed to lie outside this limited jurisdiction and the burden to establish jurisdiction

rests upon the party asserting jurisdiction. Id. A party may move to dismiss a claim against it

when the Court lacks subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). In fact, “[i]f th[is]

[C]ourt determines at any time that it lacks subject-matter jurisdiction, th[is] [C]ourt must dismiss

the action.” Fed. R. Civ. P. 12(h)(3). “Sovereign immunity is jurisdictional in nature and deprives

th[is] [C]ourt[] of subject-matter jurisdiction where applicable.” Moher v. U.S., 875 F. Supp. 2d

739, 753 (W.D. Mich. 2012) (citing FDIC v. Meyer, 510 U.S. 471, 475 (1994)).

B. Federal Rule of Procedure 12(b)(6)

A party may move to dismiss a claim against it when the claimant has “failed to state a

claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A 12(b)(6) motion to dismiss

tests the complaint’s legal sufficiency. Riddle v. Egensperger, 266 F.3d 542, 550 (6th Cir. 2001).

A cause of action fails to state a claim upon which relief may be granted when it lacks “plausibility

in the Complaint.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). A pleading must contain

a “short and plain statement of the claim showing that the pleader is entitled to relief.” Ashcroft v.

Iqbal, 556 U.S. 662, 677-78 (2009). The factual allegations in the pleading must be sufficient to

raise the right to relief above the speculative level on the assumption that all the allegations in the

Complaint are true. Bell Atl. Corp., 550 U.S. at 555. The Plaintiff is not required to include

detailed factual allegations, but must provide more than “an unadorned, the-Defendant-unlawfully-

harmed-me accusation.” Iqbal, 556 U.S. at 678. A pleading that offers legal conclusions or a

simple recitation of the elements of a cause of action will not meet this pleading standard. Id. In

reviewing a Complaint, the Court must construe the pleading in the light most favorable to the

Plaintiff. Bibbo v. Dean Witter Reynolds, Inc., 151 F.3d 559, 561 (6th Cir.1998).

III. LAW AND ANALYSIS

A. Claims Against the Ohio EPA

1. Failure to State a Claim

Defendants argue that Counts One, Two, and Three fail to state a claim for relief because

Plaintiffs fail to allege facts to show that the Ohio EPA engaged in conduct that could have

deprived Plaintiffs of their federally protected rights. (ECF No. 28, Mot. to Dismiss at PageID

#750). Similarly, Defendants assert Claims Four, Five, and Six fail to state a claim for relief

because Plaintiffs fail to allege facts to show that the Ohio EPA committed a taking. (Id. at PageID

#755-56).

In their Opposition, Plaintiffs state “the only claim asserted against the Ohio EPA, in the

[C]omplaint, is the request for prospective injunctive relief for Wilk’s unlawful issuance of [the

NOV].” (ECF No. 31, Opp. at PageID #870). Plaintiffs also state that Count Six is against Wilk

individually. (ECF No. 31, Opp. at PageID #871). Accordingly, there are no §1983 deprivation

of rights claims, §1985(3) conspiracy claims, or §1983 takings claims alleged against the Ohio

EPA. Therefore, Ohio EPA’s arguments as to these purported claims are moot.

2. Eleventh Amendment Sovereign Immunity

Defendants argue that this Court lacks subject matter jurisdiction over this action with

regard to claims against the Ohio EPA because the Ohio EPA has sovereign immunity pursuant to

the Eleventh Amendment.7 (ECF No. 28, Mot. to Dismiss at PageID #747-48). Plaintiffs’ only

claim against the Ohio EPA is a claim for injunctive relief. (ECF No. 19, Am. Compl. at PageID

7 “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced

or prosecuted against one of the United States by Citizens of another State, or by citizens or Subjects of any Foreign

State.” U.S. Const. amend. XI.

#424-25). “Eleventh Amendment immunity ‘bars all suits, whether for injunctive, declaratory, or

monetary relief, against the state and its departments, by citizens of another state, foreigners, or its

own citizens.’” McCormick v. Miami University, 693 F.3d 654, 661 (6th Cir. 2012); (quoting

Thiokol Corp. v. Dep't of Treasury, 987 F.2d 376, 381 (6th Cir.1993) (internal citations omitted)).

Sovereign immunity applies to “state instrumentalities,” S.J. v. Hamilton County, Ohio, 374 F.3d

416, 419 (6th Cir. 2004); (quoting Regents of Univ. of Calif. v. Doe, 519 U.S. 425, 429 (1997)).

In other words, it applies “to those government entities that act as ‘arm[s] of the state.’” Id.;

(quoting Mt. Healthy City Sch. Dist. Bd. of Educ. V. Doyle, 429 U.S. 274, 280 (1977).

The Ohio EPA is a department of the state of Ohio. See Gitler v. Ohio E.P.A., No.

2021WL6201289, *2 (6th Cir. 2021) (holding the Eleventh Amendment barred claims against the

Ohio EPA); Nihiser v. Ohio E.P.A., 269 F.3d 626, 627-629 (analyzing Eleventh Amendment

immunity claims against the Ohio EPA). Eleventh Amendment immunity bars Plaintiffs’ claim

against it and Count Seven is dismissed as to the Ohio EPA.

B. Claims Against Wilk

1. Subject Matter Jurisdiction

Wilk asserts that this Court lacks subject matter jurisdiction over Count Six because a

takings claim cannot be asserted against Wilk in his individual capacity. (ECF No. 28, Mot. to

Dismiss at PageID #754). Indeed, the Sixth Circuit has made clear that “a takings claims cannot

be asserted against an individual defendant.” Boggs v. City of Cleveland, No. 1:08-cv-02153,

2020WL 1640390, at *4 (N.D. Ohio April 2, 2020) (quoting Jamison v. Angelo, No. 4:10CV2843,

2012 WL 4434152, at *7 (N.D. Ohio Sept. 24, 2012)); See also Vicory v. Walton, 730 F.2d 466,

467 (6th Cir. 1984) (“Plaintiff may not maintain a constitutional cause of action against these

defendants who neither have nor claim the eminent domain power, nor any power similar to it.

The wrongful ‘taking,’ detention or theft by an individual of the property of another is not a

constitutional ‘taking’ as that term has been defined by the [F]ifth [A]mendment and commonly

understood by the courts.”) (citation omitted). Count Six is dismissed as to Wilk.

2. Statute of Limitations

Defendants argue that Counts One and Two are barred by the statute of limitations. (ECF

No. 28, Mot. to Dismiss at PageID #752-53).

a. The statute of limitations for Section 1983 and 1985(3) claims brought in

Ohio is two years.

The statute of limitations for a claim for relief under §1983 is governed by the state statute

of limitations for personal injury claims.” Bowden v. City of Franklin, Kentucky, 13 Fed.Appx

266, 272 (6th Cir. 2001). Similarly, “[T]he statute of limitations for a claim for relief under §1985

is governed by “’the most analogous statute of limitations of the state in which the cause of action

arose.’” Bowden v. City of Franklin, Kentucky, 13 Fed.Appx 266, 272 (6th Cir. 2001) (citing

Bedford v. University of Louisville School of Medicine, No. 88–6423, 1989 WL 123143, at *2, 887

F.2d 1086 (6th Cir. Oct.19 1989). The Sixth Circuit has held that a two-year statute of limitations

applies to §1983 claims in Ohio. Cooey v. Strickland, 479 F.3d 412, 416 (6th Cir. 2007) (citing

Banks v. City of Whitehall, 344 F.3d 550, 553 (6th Cir.2003); Browning v. Pendleton, 869 F.2d

989 (6th Cir.1989) (en banc)). Similarly “[a] two-year statute of limitations applies to §1985

claims brought in the state of Ohio.” Dotson v. Lane, 360 Fed.Appx. 617, 620 n. 2 (6th Cir. 2010).

b. The claims in Counts One and Two accrued on September 28, 2017.

“While statutes of limitations and tolling principles are governed by state law, the question

of when a federal civil rights claim accrues remains one of federal law.” Bowden v. City of

Franklin, Kentucky, 13 Fed.Appx 266, 272 (6th Cir. 2001). “In general, a civil rights claim for

relief accrues when the plaintiff knows or has reason to know of the injury that is the basis of his

action.” (citing Friedman v. Estate of Presser, 929 F.2d 1151, 1159 (6th Cir.1991); citing Sevier

v. Turner, 742 F.2d 262, 273 (6th Cir.1984)). “A plaintiff has reason to know of his injury when

he should have discovered it through the exercise of reasonable diligence.” Sevier, 742 F.2d at

273.

The following allegations are relevant to determining when Plaintiffs’ claims accrued:

e Plaintiffs allege that beginning in 2004, and continuing today,

Fairlawn, Roth, Randles, Wilk, Herhold and Rassavong

conspired to deprive Smith of equal protection of the laws by

conspiring to deprive him of his interest in the Property. (ECF

No. 19, Am. Compl. at PageID #417).

e Plaintiffs allege that “[iJn 2005, Wilk conspired with Fairlawn,

Roth, and Randles to allow Herhold and Rassavong to trespass

on Plaintiffs’ parcel #09-03800.” (/d. at PageID #415).

e To support this allegation, Plaintiffs reference the October 24,

2005 letter from Wilk to Herhold stating “[y]our decision was to

have the excessive fill properly removed off site. I have visited

the site numerous times providing direction during the project.”

(d.).

e Plaintiffs further allege that “Herhold and Rassavong conspired

with Fairlawn, Roth, Randles, and Wilk to dump the fill dirt

from their lot onto the property of [Plaintiffs].” (d.). And,

beginning in 2006, Fairlawn mowed Plaintiffs’ property and

assessed SLC for the cost. (/d.).

e support of this allegation, Plaintiffs reference the 2016 NOV

issued by Wilk. (/d.).

e Plaintiffs then allege that satellite photos, taken on April 9, 2005

and February 28, 2006, show that fill from the Herhold Parcel

was improperly removed, dumped, and graded on Plaintiffs’

parcel. Ud. at PageID #403-405, 416).

e Plaintiffs allege that they obtained the satellite photos on

September 28, 2017. (Ud. at PageID #404).

Plaintiffs argue that “the conspiracy has been ongoing since 2005” when Wilk oversaw the

removal of fill from the Herhold Parcel. (ECF No. 31, Opp. at PageID #868). Plaintiffs further

assert that the conspiracy continued through the Herhold Lawsuit Two trial through the use of

allegedly false evidence. (/d. at PageID #868-69). Plaintiffs argue that they became aware of the

allegedly false evidence after the State Trials on September 28, 2017. (U/d.). Viewing these facts

as true, Plaintiffs awareness of the alleged falsity of evidence triggered their claims’ accrual no

later than September 28, 2017.

Plaintiffs contend that their claims were complete and their causes of action began to accrue

on June 8, 2020, when they exhausted their appeals in Herhold Lawsuit Two. (ECF No. 31, Opp.

at PageID #869). Plaintiffs’ argument relies on McDonough v. Smith, 588 U.S. ---, 139 S.Ct. 2149,

2155 (2019) for the proposition that the statute of limitations on their claims began to run when

they exhausted their appeals in State Trial 2. (ECF No. 31, Opp. at PageID #869-70). Plaintiffs

are misguided. In McDonough, the Supreme Court recognized that a particular claim may not

realistically be brought while a violation is ongoing, such a claim may accrue at a later date.

McDonough v. Smith, 139 S.Ct. at 2155. The Supreme Court cited Wallace v. Kato, 549 U.S. 384,

389 (2007) for this proposition.

In Wallace, the petitioner was convicted of first-degree murder in state court and sentenced

to 26 years in prison. Wallace, 549 U.S. at 386. On appeal, the Appellate Court of Illinois held

that the petitioner was arrested without probable cause and the case was remanded. Id. at 386-87.

On April 10, 2002, prosecutors dropped the charges against the petitioner; on April 2, 2003, the

petitioner brought a §1983 claim against city police detectives, seeking damages for his unlawful

arrest. Id. at 397. The district court granted summary judgment to the city police and the Seventh

Circuit affirmed, holding that the suit was time barred because the claim accrued at the time of

arrest, not when the arrestee’s conviction was later set aside. Id. The Supreme Court granted cert.

Id. The parties agreed that the statute of limitations was two-years pursuant to Illinois law; the

Supreme Court was left to determine whether the statute of limitations began to run at the time of

the arrest or on the date his conviction was vacated. Id. at 387-88.

The dissenting judge in the Seventh Circuit argued that the claim accrued on the date his

conviction was vacated, in reliance on the rule for deferred accrual in Heck v. Humphrey, 512 U.S.

477, 489 (1994) (holding “just as a cause of action for malicious prosecution does not accrue until

the criminal proceedings have terminated in the plaintiff's favor, so also a § 1983 cause of action

for damages attributable to an unconstitutional conviction or sentence does not accrue until the

conviction or sentence has been invalidated.”)). The Supreme Court’s holding in Heck was based

on “the hoary principle that civil tort actions are not appropriate vehicles for challenging the

validity of outstanding criminal judgments.” Wallace, 549 U.S. at 392; Heck, 512 U.S. at 486.

In Wallace, the Supreme Court clarified the rule for deferred accrual in Heck “is called into

play only when there exists ‘a conviction or sentence that has not been ... invalidated,’ that is to

say, an ‘outstanding criminal judgment.’ It delays what would otherwise be the accrual date of a

tort action until the setting aside of an extant conviction which success in that tort action would

impugn.” Wallace, 549 U.S. at 392-93. Indeed, the rule in Heck would not apply to Plaintiffs’

Section 1983 and 1985(3) claims for conspiracy and their pending appeals in Herhold Lawsuit

Two. Therefore, the Plaintiffs’ claims accrued on September 28, 2017.

c. The statute of limitations for Counts One and Two expired on September

28, 2019.

Plaintiffs also argue that the conspiracy is ongoing, thereby tolling the statute of limitations

period. (ECF No. 31, Opp. at PageID #869-70). As discussed infra, Plaintiff only provides

conclusory allegations, insufficient to fully state their conspiracy claims. Accordingly, the statute

of limitations period was not tolled. See Collyer v. Darling, 98 F.3d 211, 220 (6th Cir. 1996)

(holding that the statute of limitations was not tolled for a §1983 conspiracy claim brought in Ohio,

where the plaintiff made conclusory allegations to support the claim.). Counts One and Two are

barred by the statute of limitations and those claims are dismissed as to Wilk.

3. Immunity

Defendants argue that this Court lacks subject matter jurisdiction over this action with

regard to claims against Wilk because he is entitled to both qualified immunity and absolute

immunity. (ECF Nos. 28, Mot. to Dismiss at PageID #748-49; 34, Rep. in Supp. at PageID #921-

22). As previously stated, the Court is dismissing Counts One, Two, and Six against Wilk on other

grounds. However, for the sake of completeness, the Court will analyze Defendants’ immunity

arguments.

a. Qualified Immunity

Although Defendants assert this argument in a Rule 12(b)(1) motion, it should have been

asserted under Rule 12(b)(6). See Peatross v. City of Memphis, 818 F.3d 233, 240 (6th Cir. 2016)

(“Although a motion pursuant to Rule 12(b)(6) invites an inquiry into the legal sufficiency of the

complaint, not an analysis of potential defenses to the claims set forth therein, dismissal

nevertheless is appropriate when the defendant is entitled to a meritorious affirmative defense such

as qualified immunity.”)). Generally, the defense of qualified immunity is rejected when asserted

in a Rule 12(b)(6) motion. Wesley v. Campbell, 779 F.3d 421, 433 (“[I]t is generally inappropriate

for a district court to grant a 12(b)(6) motion on the basis of qualified immunity.”).

However, quality immunity can be asserted in a motion to dismiss and district courts

“cannot ‘avoid ruling on the issue.’” (Sterling Hotels, LLC v. McKay, 71 F.4th 463, 466 (6th Cir.

2023). The Supreme Court has “repeatedly…stressed the importance of resolving immunity

questions at the earliest possible stage in litigation.” Pearson v. Callahan, 555 U.S. 223, 231–32

(2009) (“[W]e have made clear that the ‘driving force’ behind creation of the qualified immunity

doctrine was a desire to ensure that ‘ “insubstantial claims” against government officials [will] be

resolved prior to discovery. ”) (quoting Anderson v. Creighton, 483 U.S. 635, 640 n. 2, (1987)).

At the pleadings stage, the complaint's factual allegations are taken as true and the court decides

whether – based on those facts – the defendant is entitled to qualified immunity. Sterling, 71 F.4th

at 467; citing Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016

i. Entitlement to Qualified Immunity

Government officials are entitled to qualified immunity so long as their actions do not

violate “clearly established statutory or constitutional rights of which a reasonable person would

have known.” Mitchell v. Forsyth, 472 U.S. 511, 524 (1985) (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818-19 (1982) (“Where an official could be expected to know that his conduct would

violate statutory or constitutional rights, he should be made to hesitate....”) (emphasis added).

Qualified immunity shields government officials from liability for claims brought under Section

1983. Peatross, 818 F.3d at 240.

ii. Qualified Immunity does not shield government officials from

claims for injunctive relief.

Count Seven of the Amended Complaint is a request for injunctive relief, asking the Court

to permanently enjoin the enforcement of the NOV issued by Wilk. (ECF No. 19, Am. Compl. at

PageID #422-23). Plaintiffs’ prayer for relief includes 1) a request that the Court issue a

declaratory judgment that the NOV is null and void and 2) a request that the Court enjoin the Ohio

EPA, Wilk, and Fairlawn from enforcing or penalizing Plaintiffs based on the NOV. (Id. at PageID

#426). Qualified immunity protects government officials from individual liability for money

damages, but not from declaratory or injunctive relief. Flagner v. Wilkinson, 241 F.3d 475, 483

(6th Cir. 2001); Pearson, 555 U.S. at 242–43 (2009) (observing that qualified immunity does not

preclude injunctive relief for a claim under 42 U.S.C. § 1983); see also Wood v. Strickland, 420

U.S. 308, 315 n.6 (“[I]mmunity from damages does not ordinarily bar equitable relief.”). But for

the fact that the aforementioned claims against Wilk are time barred, qualified immunity would

not have been a defense to any claim against Wilk for declaratory and injunctive relief sought.

iii. Qualified Immunity bars Section 1983 Claims for money

damages.

Count Nine of the Amended Complaint is a request for exemplary punitive damages against

all Defendants. (ECF No. 19, Am. Compl. at PageID #425-26). Plaintiffs allege 1) all Defendants’

actions “were malicious, willful, and wanton,” 2) the actions were “made with specific intent to

harm Plaintiffs,” and 3) the actions constitute a “conspiracy to…commit trespass and the physical

taking of parcels #09-03800 and #09-03799)”. (Id. at PageID #426). Plaintiff requests exemplary

damages to deter the alleged conduct in the future. (Id.). Plaintiffs’ prayer for relief includes 1)

finding all Defendants jointly liable for damage in an amount to be proven at trial, 2) a request for

the Court to issue a judgment for compensatory damages in an amount to be proven at trial, and 3)

a request for litigation fees and punitive damages in an amount to be decided by a jury. (Id.). To

the extent that Plaintiffs could bring any of these requests for money damages against Wilk for

their Section 1983 claims, the Court finds that qualified immunity applies.

In the Sixth Circuit, there is a two-step inquiry to determine whether a government official

is entitled to qualified immunity. Peatross, 818 F.3d at 240. “First, viewing the facts in the light

most favorable to the plaintiff, ‘do the facts alleged show that the officer's conduct violated a

constitutional right?’” Id.; citing Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir.2006).

“Second, was ‘the right clearly established’ at the time of the violation?” Id.; see also Philips v.

Roane County, Tenn., 534 F.3d 531 538–39 (6th Cir.2008). The plaintiff “bear[s] the burden of

showing that a clearly established right has been violated and that the official's conduct caused that

violation,” Id.; citing Essex v. Cty. of Livingston, 518 Fed.Appx. 351, 357 (6th Cir. 2013).

The facts alleged do not show that Wilk’s conduct violated Plaintiffs’ constitutional

rights.

A §1983 individual-capacity claim seeks to hold an official personally liable, as opposed

to an official-capacity claim which is essentially a claim against a municipality. Peatross, 818

F.3d at 241. “[T]o establish personal liability in a Section 1983 action, it is enough to show that

the official, acting under color of state law, caused the deprivation of a federal right[.]” Id.;

(quoting Leach v. Shelby Cty. Sheriff, 891 F.2d 1241, 1245 (6th Cir.1989) (internal quotation

marks omitted) (quoting Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114

(1985)).

Plaintiff alleges that Wilk issued the NOV to Plaintiffs for unauthorized fill of isolated

wetlands on February 24, 2016. (ECF No. 19, Am. Compl. at PageID #422). Plaintiffs further

assert that the NOV, purporting to enforce the USACE permit, was unlawful. (Id., at PageID

#423). Plaintiffs contend the USACE permit expired on February 4, 2004, upon the issuance of

the USACE-Fairlawn Letter to the Ohio EPA stating that the USACE permit was not required for

impact to isolated wetlands. (Id.). Plaintiffs claim the issuance of the NOV denied them use of

their property, constituting a taking in violation of the Fifth Amendment. (Id.). They also aver that

Wilk’s conduct was part of a conspiracy to deprive them of their interest in the Property in violation

of §1983. (Id. at PageID #414). They contend that he engaged in a conspiracy to deprive Plaintiffs

equal protection of the law in violation of Section 1985(3). (Id. at PageID #417).

Plaintiffs have put forth no facts showing how issuing the NOV accomplished or amounted

to a deprivation of Plaintiffs’ constitutional rights. Plaintiffs’ allegations are conclusory. As

discussed infra, there are no facts alleged to support the §1983 conspiracy claims nor are there

facts alleged that show how issuing the NOV is a taking under the Fifth Amendment. This element

is not satisfied.

The Constitutional right alleged is not clearly established.

“[T]here has been no court in this circuit that ha[s] yet decided whether an officer could be

liable for a taking in his individual capacity.” Sterling Hotels, LLC v. McKay, 71 F.4th 463, 468

(6th Cir. 2023); See Vicory v. Walton, 730 F.2d 466, 467 (6th Cir. 1984) (“Plaintiff cites no case,

and we can find none, that suggests that an individual may commit and be liable in damages for a

‘taking’ under the Fifth Amendment”). Therefore, Wilk’s alleged individual liability for a taking

claim is not clearly established. See Sterling Hotels, 71 F.4th at 468 (A state elevator inspector

sealed the plaintiff’s elevators and the plaintiff alleged that the inspector deprived him of the use

of his property in violation of the Fourteenth and Fifth Amendments. The Sixth Circuit held the

state inspector was entitled to qualified immunity on the Fifth Amendment taking claim brought

against him in his individual capacity, because the constitutional right alleged was not clearly

established when the alleged taking occurred.). Accordingly, while the Court has determined that

the counts against Wilk are time-barred, he otherwise would be entitled to qualified immunity as

to any request for money damages.

b. Absolute Immunity

Defendants also argue that Wilk is entitled to absolute immunity from suit based on any

testimony given in the previous state court action. (ECF No. 34, Rep. in Supp. at PageID #921).

Indeed, the Supreme Court has held that “a trial witness has absolute immunity with respect to any

claim based on the witness’ testimony.” Rehberg v. Paulk, 566 U.S. 356, 367 (2012); (citing

Briscoe v. LaHue, 460 U.S. 325, 332-33 (1983)).

All of Plaintiff’s claims against Wilk appear to be based in large part on is his allegedly

false testimony in Herhold Lawsuit Two: 1) about his job duties in 2005; 2) that Herhold and

Rassavong needed to resolve the fill issue with the Ohio EPA in order to meet Fairlawn’s

conditions to obtain a building permit; 3) that the fill was properly removed from the Herhold

Parcel; 4) that he oversaw the proper removal of the fill; and 5) to the necessity of removing the

fill. (ECF No. 31, Opp. at PageID #861-68). Wilk is therefore entitled to absolute immunity from

all of Plaintiffs’ claims.

4. Failure to State a Claim

Defendants argue that Counts One, Two, and Three fail to state a claim for relief because

Plaintiffs fail to allege facts to show that the Wilk engaged in conduct that could have deprived

Plaintiffs of their federally protected rights. (ECF No. 28, Mot. to Dismiss at PageID #750-52).

Although the Court has dismissed Counts One, Two, and Six against Wilk on other grounds, it

will conduct the 12(b)(6) analysis.

a. Count One – Section 1983 Conspiracy

A §1983 civil conspiracy claim requires a plaintiff to show “(1) a ‘single plan’ existed, (2)

[defendants] ‘shared in the general conspiratorial objective’ to deprive [plaintiffs] of [their]

constitutional ... rights, and (3) ‘an overt act was committed in furtherance of the conspiracy *768

that caused injury’ to [plaintiffs].” Siefert v. Hamilton County, 951 F.3d 753, 767 (6th Cir. 2020)

(quoting Bazzi v. City of Dearborn, 658 F.3d 598, 602 (6th Cir. 2011)). Plaintiffs claim fails

because there are no facts alleged by Plaintiffs that any such agreement existed. Plaintiffs

allegations are conclusory, only stating that the Defendants conspired to deprive them of their

property rights. (ECF No. 19, Am. Compl. at PageID #414-20). Although Plaintiffs include the

working relationships between the Defendants, they do not allege that the Defendants agreed to

violate Plaintiffs’ constitutional rights.

Without specific allegations that the Defendants entered into an agreement to deprive

Plaintiffs of their rights, Count One fails to state a claim for relief. Siefert, 951 F.3d at 768 (“It is

well-settled that conspiracy claims must be pled with some degree of specificity.”) (quoting Heyne

v. Metropolitan Nashville Schools, 655 F.3d 556, 563 (6th Cir. 2011) (editing mark omitted.)).

Plaintiffs have not alleged any facts, with particularity, showing that Wilk entered into a plan or

conspiratorial objective to deprive Plaintiffs of their constitutional rights. Heyne, 655 F.3d at 564.

Count One fails to state a claim as to Wilk.

b. Count Two – Section 1985(3) Conspiracy

A §1985(3) civil conspiracy claim requires a plaintiff to show “1) a conspiracy involving

two or more persons; 2) for the purpose of depriving, directly or indirectly, a person or class of

persons of the equal protection of the laws; and 3) an act in furtherance of the conspiracy; 4) which

causes injury to a person or property, or a deprivation of any right or privilege of a citizen of the

United States.” Smith v. Thornburg, 136 F.3d 1070, 1078 (6th Cir.1998) (citing Johnson v. Hills

& Dales Gen. Hosp., 40 F.3d 837, 839 (6th Cir.1994), cert denied). The plaintiff must demonstrate

that the conspiracy was motivated by a class-based animus, such as race. Johnson, 40 F.3d at 839;