Hora v. Risner

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

FRANKIE HORA, et a/., :

Plaintiffs,

Case No. 3:18-cv-344

Vv. ;

JUDGE WALTER H. RICE

RICK RISNER, et a/.,

Defendants.

DECISION AND ENTRY OVERRULING MOTION FOR SUMMARY

JUDGMENT FILED BY DEFENDANTS STEPHEN NELSON AND

WILLIAM WORTMAN (DOC. #46); CONFERENCE CALL SET FOR

JUNE 9, 2021, AT 4:30 P.M. TO DISCUSS NEW TRIAL DATE AND

OTHER DATES

Plaintiffs, Frankie and Mary Hora, along with their business, Tukens, LLC

(d/b/a Tukens Farm Market), filed suit against their neighbor Rick Risner and

against Perry Township, Perry Township Police Officer Stephen Nelson and

Sergeant William Wortman (the “Perry Township Defendants”). Plaintiffs sought

damages under 42 U.S.C. § 1983, for alleged violations of their Fourth, Fifth,

Sixth and Fourteenth Amendment rights under the United States Constitution.

They also brought a state law claim of “emotional distress.”

On August 13, 2020, the Court issued a Decision and Entry on the Perry

Township Defendants’ Motion for Judgment on the Pleadings, dismissing all claims

against them except for the 8 1983 Fourteenth Amendment procedural due

process claim brought against Defendants Nelson and Wortman in their individual

capacities.’ Doc. #37.

This matter is currently before the Court on a Motion for Summary

Judgment filed by Defendants Nelson and Wortman. Doc. #46. They argue that

they are entitled to qualified immunity on that one remaining claim against them.

I. Factual Background

This case involves law enforcement officers’ response to a property

boundary dispute between neighbors. Plaintiffs Frankie and Mary Hora own and

operate the Tukens Farm Market, located on the north side of Eaton Pike in Perry

Township near West Alexandria, Ohio. For more than fourteen years, signs

advertising the farm market were located on a triangular piece of land on the east

bank of a creek that runs near the eastern edge of their property.

In the Spring of 2017, Defendant Rick Risner purchased the property

immediately to the east of the farm market. Given that Frankie Hora had also

expressed an interest in purchasing this same property, Risner’s purchase allegedly

created some tension between them. In October of 2017, Frankie Hora called the

fire department to report that Risner was illegally burning debris. Doc. #42,

PagelD#472. Hora claims that Risner retaliated by falsely claiming ownership of

' Acclaim brought against a government official in his individual capacity seeks to

impose personal liability for alleged constitutional violations. See Kentucky v.

Graham, 473 U.S. 159, 165 (1985).

the triangular piece of land on which the farm market signs were located (hereafter

“the disputed property”). /d. at PagelD#492.

The Horas could access the disputed property only by crossing Risner’s

property or by crossing through the creek. According to Frankie Hora, Risner had

previously given him permission to enter onto his property to collect walnuts from

a tree that was on the property boundary near the farm market signs. /d. at

PagelD##364-65.

On the morning of October 20, 2017, Risner contacted the Perry Township

Police Department to file a complaint about an incident “which had occurred the

day before.” Officer Stephen Nelson, of the Perry Township Police Department,

was dispatched to take Risner’s statement. Risner claimed that Frankie Hora had

been threatening to sue him if he did not agree to sell him his property, had

reported him to the fire department, and was harassing him. Risner asked that

Hora be arrested for trespassing if he entered onto his property. Doc. #48-1,

PagelD##897, 900; Doc. #44, PagelD##633-34. Risner also told Officer Nelson

that the farm market signs were located on his property, and he wanted Hora to

remove them. Doc. #48-1, PagelD#897. Risner told Nelson that the creek was

the boundary between the two properties, and that the signs were located on his

side of the creek. Doc. #44, PagelD##639-40.

The parties have different recollections about what happened next, and

some of the disputed facts are material. Because, on a motion for summary

judgment on qualified immunity grounds, the Court must view the facts in the light

most favorable to Plaintiffs, it will rely primarily on Frankie and Mary Hora’s

depositions, noting Defendants’ areas of disagreement where applicable.

The officers testified that Sergeant Wortman was also present when Officer

Nelson took Risner’s statement that morning. Doc. #43, PagelD#586; Doc. #44,

PagelD#636. According to Wortman, while Officer Nelson was talking to Risner,

Frankie Hora walked over to meet them. Wortman pulled Hora aside and explained

to him that Risner wanted Hora to stop harassing him, to stay off of his property,

and to remove the signs, which Risner claimed were located on his property.

Wortman testified that Hora then showed him posts in the field on the east side of

the creek, which Hora believed to be the property boundary. Wortman then

allegedly told Hora that he was going back to the township building to look at

maps of the area. Doc. #43, PagelD##590-94; Doc. #44, PagelD##663-64.

Frankie Hora, however, disputes this testimony, and flatly denies talking to

either officer that morning. Doc. #42, PagelD##299-304, 311. He testified that,

at approximately 11:00 a.m. on October 20th, he was working in the fields when

his wife, Mary, called him on his cell phone to tell him that Officer Nelson was at

the farm market. Nelson had demanded to talk to Frankie, and told her that their

signs were on a neighbor’s property and had to be removed immediately. Mary

was upset because Nelson had parked right in front of the store and interrupted her

while she was waiting on customers. /d. at PagelD##294-98; Doc. #45,

PagelD##763-68.

By the time Frankie returned from the fields to the farm market, Officer

Nelson was no longer there. Frankie attempted to reach him by phone, but there

was no answer. That afternoon, Frankie went to the Perry Township offices and

told the receptionist that he was responding to a request that he contact Officer

Nelson. Officer Nelson came to the lobby and told him that the farm market signs

were on Risner’s property. Doc. #42, PagelD##294-302.* Nelson showed Hora

the Perry Township zoning map and a plat map, which appeared to support

Risner’s claim that the signs were located on his property. /d. at PagelD##333-34;

Doc. #48-1, PagelD#897; Doc. #44, PagelD##643-44.°

According to Hora, Sergeant Wortman told him that if he did not remove the

signs, the township would do it for him and bill him. The officers also allegedly

told him that if he did not immediately remove the signs, he would be arrested and

charged with trespassing. Doc. #42, PagelD##303-04, 344, 365-66, 369-70.

Defendants deny threatening to arrest Hora if he refused to remove the signs

that day. They admit, however, they told him that, if he had any belongings on

2 Officer Nelson’s “Investigator Notes” indicate that Hora came to the police

station at 2:34 p.m. that day to speak to him about the property dispute. Nelson

wrote, “| informed him that the official zoning map shows his property line on the

other side of the creek. | informed him that his neighbor, Rick Risner, wants him

to remove his signs and [Hora] be trespassed from the property.” Doc. #48-1,

PagelD#899.

3 Sergeant Wortman and Officer Nelson testified that Hora conceded that the

zoning map appeared to show that the signs were located on Risner’s property.

Doc. #43, PagelD#598; Doc. #44, PagelD#655. Hora denies making any such

concession. Doc. #42, PagelD#345.

the disputed property, he needed to remove them that day, because he would be

charged with trespassing if he entered onto Risner’s property to retrieve them after

that.* Doc. #43, PagelD##594, 601; Doc. #44, PagelD##666-71. Nelson and

Wortman also testified that they advised Hora to obtain an official survey to

determine the exact boundary line, but Hora disputes this. Doc. #43, PagelD#600;

Doc. #44, PagelD#667; Doc. #42, PagelD##346-47, 354.

Although Hora disagreed with the officers about the property boundary, he

agreed to remove the signs and other belongings from the disputed property. He

claims that he agreed to do so only because he did not want to be arrested. Doc.

#42, PagelD#355. He asked that Officer Nelson come with him and remain

present while he took photographs and removed the signs. /d. at PagelD#347.

Wortman instructed Nelson to “go out and keep the peace and allow a window of

time for which Hora could transverse across Mr. Risner’s .. . property” to retrieve

the signs. Doc. #44, PagelD##654-55.

According to Hora, Officer Nelson then followed him home.® Doc. #42,

PagelD#372. Hora attempted to show Nelson a property survey that had been

* In addition to the signs, Hora also had a walnut bin and a tractor on the

disputed property. Doc. #42, PagelD#379.

Officer Nelson testified that he arranged to meet Hora at the farm market

parking lot. Nelson maintains that he entered the farm market to look for him only

because he did not see him outside. Nelson denies going into the farm market

earlier that morning. Doc. #44, PagelD##657-58, 664-65.

completed in 2003.° /d. at PagelD#331; Doc. #45, PagelD##778-79. Hora

testified that he and Nelson then walked out to the disputed property. Hora

pointed out the steel posts located on the east side of the creek, which he claimed

marked the property boundary. Although Nelson allegedly agreed that the posts

looked like they could be the property line, he stated that he was told to rely on

the township zoning map. Doc. #42, PagelD##343-44, 375-76.

Hora took photographs of the disputed property, and then removed the signs

and the walnut bin. It is undisputed that Officer Nelson did not take possession of

the signs. Nor did he help Hora remove the signs or tell him where they should be

relocated. Nelson’s only concern was making sure that Hora removed the signs

from the disputed property. /d. at PagelD##395, 399-400. A few days later, Hora

repositioned the signs on the west side of the creek.

Hora testified that, on or about October 23, 2017, he returned to the Perry

Township offices with Perry Township Trustee Dale Seim, armed with a map from

the auditor’s website, allegedly showing that the Horas owned the disputed

property. Seim told Nelson that the zoning map was inaccurate and should not be

relied upon, but Nelson refused to change his stance. /d. at PagelD##316, 350-

52, 373.

® It appears to be undisputed that the 2003 survey did not clearly show where the

creek passed through the property. Accordingly, it would not have resolved the

boundary dispute.

+

In November of 2017, Hora obtained a new survey of the property

boundaries. Doc. #42, PagelD#483. He testified that he concluded, on his own,

that this would be the most appropriate course of action if he wanted to regain

access to his land. /d. at PagelD##347-48. The parties now agree that this

survey shows that the disputed property on which the farm market signs had been

located does, in fact, belong to the Horas. /d. at PagelD#414.

On April 13, 2018, Hora provided the Perry Township Trustees with a copy

of this new survey. He asked that the records regarding his property boundary and

the records of the investigation be corrected, that he be reimbursed $750,000 for

the denial of use of his property, that Risner be informed of the true property

boundaries, and that he be permitted to erect the signs in their previous location.

Id, at PagelD#409. Hora, however, got no response from the township and, in an

abundance of caution, he has never reentered the disputed property.’

ll. Procedural History

On October 19, 2018, Frankie and Mary Hora filed suit against Rick Risner,

Perry Township, Officer Nelson and Sergeant Wortman. An Amended Complaint,

filed on November 15, 2019, sought relief under 42 U.S.C. § 1983 for alleged

’ Hora did later put a sign on the east bank of the creek, on what he claims is the

“public right-of-way” rather than the disputed property. Doc. #42, PagelD##432-

oT.

violations of the Fourth, Fifth, Sixth, and Fourteenth Amendments, and asserted a

state law claim of “emotional distress.” °

The Perry Township Defendants filed a Motion for Judgment on the

Pleadings. On August 13, 2020, the Court dismissed all claims against the Perry

Township Defendants except for the 8 1983 claim alleging procedural due process

violations, brought against Nelson and Wortman in their individual capacities. The

Court refused to grant qualified immunity to them at that juncture. Doc. #37. See

Watkins v. Healy, 986 F.3d 648, 668 (6th Cir. 2021) (noting that it is generally

inappropriate to grant a motion to dismiss on the basis of qualified immunity,

because development of the factual record is typically required to determine

whether the officer’s actions violated clearly established law).

In denying Defendants’ request for qualified immunity, the Court found that,

by alleging that they were forced to remove the farm market signs from the

disputed property without the opportunity to be heard, Plaintiffs had stated a

plausible procedural due process violation, and that the law was clearly established

such that a reasonable officer would have known that individuals are entitled to a

meaningful opportunity to be heard prior to being deprived of the use of their

property. Doc. #37, PagelD##254-63.

8 The Amended Complaint alleges that, “with respect to the boundary dispute,

Risner acted in concert with Nelson, Wortman and Perry Township.” Doc. #26,

PagelD#146. This allegation could be interpreted to assert § 1983 claims not only

against the Perry Township Defendants, but also against Risner. Given that Risner

has not filed any dispositive motions, all claims against him remain pending.

Defendants Stephen Nelson and William Wortman’s Motion for Summary

Judgment (Doc. #46)

Defendants Nelson and Wortman have now moved for summary judgment

on the one remaining claim. Now citing deposition testimony, they again argue

that they are entitled to qualified immunity. Doc. #46. That motion is now fully

briefed. See Docs. ##48, 50.

A. Summary Judgment Standard

Summary judgment must be entered “against a party who fails to make a

showing sufficient to establish the existence of an element essential to that party’s

case, and on which that party will bear the burden of proof at trial.” Ce/otex Corp.

v. Catrett, 477 U.S. 317, 322 (1986). The moving party always bears the initial

responsibility of informing the court of the basis for its motion, and identifying

those portions of the record which it believes demonstrate the absence of a

genuine issue of material fact. /d. at 323; see also Boretti v. Wiscomb, 930 F.2d

1150, 1156 (6th Cir. 1991).

“Once the moving party has met its initial burden, the nonmoving party must

present evidence that creates a genuine issue of material fact making it necessary

to resolve the difference at trial.” Ta/ley v. Bravo Pitino Rest., Ltd., 61 F.3d 1241,

1245 (6th Cir. 1995); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

250 (1986). Once the burden of production has so shifted, the party opposing

summary judgment cannot rest on its pleadings or merely reassert its previous

allegations. It is not sufficient to “simply show that there is some metaphysical

10

doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 586 (1986). Rule 56 “requires the nonmoving party to go beyond

the [unverified] pleadings” and present some type of evidentiary material in support

of its position. Ce/otex, 477 U.S. at 324. “The plaintiff must present more than a

scintilla of evidence in support of his position; the evidence must be such that a

jury could reasonably find for the plaintiff.” Michigan Prot. & Advocacy Serv., Inc.

v. Babin, 18 F.3d 337, 341 (6th Cir. 1994).

Summary judgment shall be granted “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). “Summary judgment will not lie if the dispute

about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.

In determining whether a genuine dispute of material fact exists, a court must

assume as true the evidence of the nonmoving party and draw all reasonable

inferences in favor of that party. /d. at 255. If the parties present conflicting

evidence, a court may not decide which evidence to believe. Credibility

determinations must be left to the fact-finder. 10A Wright, Miller & Kane, Federa/

Practice and Procedure Civil 3d § 2726 (1998).

In determining whether a genuine dispute of material fact exists, a court

need only consider the materials cited by the parties. Fed. R. Civ. P. 56(c)(3). “A

district court is not . . . obligated to wade through and search the entire record for

some specific facts that might support the nonmoving party’s claim.” /nterRoyal

11

Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989), cert. denied, 494 U.S.

1091 (1990). If it so chooses, however, the court may also consider other

materials in the record. Fed. R. Civ. P. 56(c)(3).

B. Relevant Law

1; 42 U.S.C. § 1983

In order to recover under 42 U.S.C. 8 1983, a plaintiff must prove that the

defendant, while acting under color of state law, violated a right secured by the

Constitution or laws of the United States. See Adickes v. S.H. Kress & Co., 398

U.S. 144, 150 (1970). It is undisputed that, at all relevant times, Officer Nelson

and Sergeant Wortman were acting under color of state law. At issue is whether

Defendants violated Plaintiffs’ Fourteenth Amendment procedural due process

rights when, prior to giving them a meaningful opportunity to be heard, Defendants

ordered Plaintiffs to remove the signs from the disputed property.

2. Qualified Immunity

When defendants raise the defense of qualified immunity, plaintiffs bear the

burden of showing that defendants are not entitled to it. Johnson v. Moseley, 790

F.3d 649, 653 (6th Cir. 2015)). As the Sixth Circuit has explained:

The doctrine of qualified immunity generally shields “government

officials performing discretionary functions . . . from liability for civil

damages 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 396 (1982). “Qualified immunity ‘gives ample room

for mistaken judgments [and protects] all but the plainly incompetent

or those who knowingly violate the law.’” Essex v. Cty. of

12

Livingston, 518 F. App'x 351, 356 (6th Cir. 2013) (quoting Chappel/

v. City of Cleveland, 585 F.3d 901, 907 (6th Cir. 2009)).

Cahoo v. SAS Analytics Inc., 912 F.3d 887, 897 (6th Cir. 2019). Qualified

immunity applies “regardless of whether the government official's error is a

mistake of law, a mistake of fact, or a mistake based on mixed questions of law

and fact.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation

omitted).

In determining whether Defendants Nelson and Wortman are entitled

to qualified immunity, the court follows a two-step inquiry.

“First, taken in the light most favorable to the party asserting the

injury, do the facts alleged show that the officer's conduct violated a

constitutional right? Second, is the right clearly established?” Sea/es

v. City of Detroit, Mich., 724 F. App'x 356, 359 (6th Cir. 2018)

(quoting Si/berstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir.

2006)). This Court may address these prongs in either order. Pearson

v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565

(2009). “If either prong is not met, then the government officer is

entitled to qualified immunity.” Doe v. Miami Univ., 882 F.3d 579,

604 (6th Cir. 2018) (citing Courtright, 839 F.3d at 518).

Cahoo, 912 F.3d at 897-98.

As explained in Behrens v. Pelletier, 516 U.S. 299 (1996), defendants may

raise the defense of qualified immunity at multiple stages of the litigation.

However, on a motion to dismiss, “it is the defendant's conduct as alleged in the

complaint that is scrutinized for ‘objective legal reasonableness.’” At the summary

judgment stage, however, “the plaintiff can no longer rest on the pleadings...

and the court looks to the evidence before it (in the light most favorable to the

plaintiff).” /a. at 309 (emphasis in original).

13

C. Analysis

dl. Constitutional Violation?

The first question is whether the facts, taken in the light most favorable to

Plaintiffs, show that Defendants’ conduct violated a federal right. Jo/an v. Cotton,

572 U.S. 650, 655-56 (2014). Plaintiffs allege that Defendants’ conduct violated

their procedural due process rights under the Fourteenth Amendment to the United

States Constitution. This Amendment provides that no state shall “deprive any

person of life, liberty, or property without due process of law.” U.S. Const.

amend. XIV. The procedural due process portion of this clause requires that, when

a significant property interest is at stake, “the right to notice and an opportunity to

be heard must be granted at a meaningful time and in a meaningful manner.”

Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (internal quotation omitted).

In order to succeed on their procedural due process claim, Plaintiffs must

establish three elements: “(1) that they have a property interest protected by the

Due Process Clause; (2) that they were deprived of this property interest; and (3)

that the state did not afford them adequate pre-deprivation procedural rights.”

Cahoo, 912 F.3d at 900.

a. Property Interest

Based on the survey conducted in November of 2017, Defendants now

concede that Frankie and Mary Hora do, in fact, own the disputed property, /.e.,

the triangular piece of land on which the farm market signs were located. The

14

question is whether the property interest at stake is one that is protected by the

Due Process Clause.

The Court must first resolve a disagreement about the nature of the property

interest at issue. Defendants argue that the only property interest at stake in this

lawsuit is Plaintiffs’ persona/ property interest in the signs themselves. In support,

they cite to one line from the Court’s Decision and Entry Sustaining in Part and

Overruling in Part Defendants’ Motion for Judgment on the Pleadings. Therein, the

Court stated, “[i]t appears to be undisputed that Plaintiffs have a protected

property interest in the signs used to advertise their farm market.” The Court

found that Plaintiffs had “adequately alleged that they were deprived of that

property interest when Officer Nelson ordered them to immediately take down the

signs.” Doc. #37, PagelD#257,.

The Court's analysis, however, was not limited to a discussion of Plaintiffs’

property interest in the signs themselves. It encompassed Plaintiffs’ claim that

they were deprived of their right to use their real property to advertise the farm

market. The Court concluded that “it could be argued that, at the very least, due

process required that, before Plaintiffs were forced to remove the signs, they be

given the opportunity to hire a surveyor and present evidence to support their claim

that the signs were not on Mr. Risner’s property.” /d. at PagelD#259.

Moreover, nothing in the Amended Complaint limits the nature of the

property interest at issue to personal property, /.e., the signs. In fact, the

Amended Complaint alleges that Plaintiffs “were wrongfully deprived of the use of

15

their Property.” Doc. #26, PagelD#148, at { 61.° The Amended Complaint

defines “the Property” not as the signs, but rather as the real property located at

15725 Eaton Pike, Doc. #26, PagelD#140, at 44.

In addition, in their Motion for Summary Judgment, Defendants state that

“Plaintiffs’ protected property interest is in the p/acement of the signs to advertise

their market.” Doc. #46, PagelD#846 (emphasis added). For these reasons, the

Court rejects Defendants’ later attempts to limit the property interest at stake to

the signs themselves. The property interest at stake clearly encompasses the real

property that is the subject of this dispute.

Property interests arise from state law. Cleveland Bad. of Educ. v.

Loudermill, 470 U.S. 532, 538 (1985). Under Ohio law, ownership of real

property carries with it a bundle of rights, including the right to freely use and

enjoy the property. Antonik v. Chamberlain, 81 Ohio App. 465, 472-73, 78

N.E.2d 752, 758 (Ohio Ct. App. 1947) ("The chief characteristic of ownership is

the right to complete dominion, and when ownership is applied to land it means

the land itself and what pertains to it, and the right for the time being to possess

and enjoy it."). In addition, Ohio law permits outdoor advertising on “lands used

for agricultural purposes.” Ohio Rev. Code § 519.20.

° Although § 61 is part of Count II (the Fifth Amendment claim), Count IV (the

Fourteenth Amendment claim) incorporates it “as if fully restated and realleged

herein.” Doc. #26, PagelD##150-51, { 76.

16

Based on the foregoing, the Court rejects Defendants’ argument that the

property interest at issue is de minimis and, therefore, not constitutionally

protected. See, e.g., Kennedy v. City of Cincinnati, 595 F.3d 327, 335 (6th Cir.

2010) (holding that a protected property interest generally must be more than a de

minimis interest). From a constitutional standpoint, Plaintiffs’ interest in being able

to freely use this portion of their real property cannot be deemed de minimis. See

Burden v. Ohio Dep't of Job & Fam. Servs., 2012-Ohio-1552, 2012 WL 1139164,

{ 27 ("The rights to acquire, use, and dispose of property are essential attributes

of private property ownership and are protected by due process.").'°

The Court finds, as a matter of law, that Plaintiffs have a protected property

interest not only in the signs themselves but, more importantly, in the real property

on which they were located.

b. Deprivation of Property Interest

The next question is whether Plaintiffs were deprived of their protected

property interest. Defendants note that they never took physical possession of the

signs. They argue that, because Frankie Hora voluntarily agreed to remove the

Defendants also argue that, because this incident occurred near the end of the

farm market’s season, any deprivation of a property interest was de minimis. Mary

Hora testified, however, about the importance, in terms of visibility for passing

motorists, of having the advertising signs on that particular triangular piece of

property. Doc. #45, PagelD##789-92. Plaintiffs presented evidence that, in

October of 2017, when the signs were removed for several days, the farm

market’s revenues dropped by nearly $8,000 from the same month the previous

year. Doc. #42-3, PagelD##568, 571.

17

signs from the disputed property and repositioned them just a few days later, it

cannot be said that Plaintiffs were ever deprived of their property interest in the

signs themselves. This may be true.

Nevertheless, viewing the evidence in a light most favorable to the Plaintiffs,

the Court finds that a reasonable jury could find that Defendants deprived them of

their property interest in the disputed real property, /.e., the triangular piece of land

on the east side of the creek. According to Hora’s testimony, the officers told him

that he would be arrested if he did not remove the signs that day, and that if he

refused to do so, the township would do it for him and send him the bill. As such,

a reasonable jury could find that Hora did not “voluntarily” remove the signs, and

that the officers deprived Plaintiffs of their right to use and enjoy their own

property, including their right to place advertising signs on it.

c. Adequate Pre-Deprivation Procedural Rights

The next question is whether a reasonable jury could find that, given the

circumstances, Plaintiffs were afforded adequate due process protections prior to

being deprived of their protected property interest. The amount of process that is

due depends on the facts of each case. See Morrissey v. Brewer, 408 U.S. 471,

481 (1972) (“due process is flexible and calls for such procedural protections as

the particular situation demands."). Although procedural due process protections

are required in cases involving deprivations of personal property, such protections

are even more important in cases involving deprivations of real property.

18

In determining what process is owed, the court applies the three-part

balancing test set forth in Mathews v. Eldridge, 424 U.S. 319 (1976): (1) “the

private interest that will be affected by the official action;” (2) “the risk of an

erroneous deprivation of such interest through the procedures used, and the

probable value, if any, of additional or substitute procedural safeguards;” and (3)

“the Government's interest, including the function involved and the fiscal and

administrative burdens that the additional or substitute procedural requirement

would entail.” /d. at 335.

Here, the private interest at stake is the right of Plaintiffs to freely use their

real property as they wish, including the right to place advertising signs on it. The

Court must next consider the risk that, through the procedures actually used,

Defendants would make an erroneous determination about who owned the

disputed property, and the probable value of additional or substitute safeguards.

Notably, the farm market signs had been in the same location without

incident for approximately fourteen years. It was only after Risner purchased the

property next door that anyone challenged ownership of the land on which they

were located. To their credit, Nelson and Wortman did not rely solely on Risner’s

claim to the disputed property; they also looked at the zoning map and the plat

map, which they maintain supported Risner’s claim of ownership.

However, the accuracy of these maps for determining property boundaries is

questionable. Wortman testified that Township Trustee Dale Seim told them that

the zoning map was old, Doc. #43, PagelD##599-600, and, according to Frankie

19

Hora, Seim also told the officers that it should not be used. Doc. #42,

PagelD#340. Moreover, the zoning map and plat map appear to be inconsistent

with the document obtained from the auditor's website, which Hora and Seim

showed the officers on October 23rd. /d. at PagelD#350. It therefore appears

that using the zoning map and plat map to determine the property boundary

resulted in a fairly high risk of an erroneous determination of ownership.

Of course, a property boundary survey would have provided a definitive

answer as to who owned the disputed property. Officer Nelson testified that the

township would have respected the results of an official survey. Doc. #44,

PagelD#667. As previously discussed, Hora denies that the officers recommended

that he have a survey done to determine the true property boundary.

In any event, instead of waiting for Hora to obtain a survey, Defendants—

relying solely on the zoning map, the plat map, and Risner’s claim of ownership—

determined that Risner owned the disputed property. Nelson’s narrative

supplement states that he “found that not only were Hora’s signs on Rick’s

property, but the property line was on the other side of the creek.” Doc. #48-1,

PagelD#897. According to Hora, this determination was made before he was

given any opportunity to show the officers the steel posts that he maintains

marked the true property boundary. He testified that “they expressed as a

statement of fact that | was on [Risner’s] property.” Doc. #42, PagelD#347.

Hora maintains that, when he went to the township offices that afternoon,

20

Defendants told him that he would be arrested and charged with trespassing

unless he immediately removed the signs from the disputed property.

Finally, the Court must consider “the Government's interest, including the

function involved and the fiscal and administrative burdens that the additional or

substitute procedural requirement would entail.” Mathews, 424 U.S. at 335. In

this case, there is no evidence that giving Plaintiffs the opportunity to obtain a

property survey prior to ordering them to remove the signs from the disputed

property would have imposed any fiscal or administrative burdens on the township.

Moreover, making a unilateral decision about who owned the disputed

property is arguably contrary to paragraph 14(a) of the Perry Township Police

Department Operation Guidelines. That paragraph states, “[mJembers shall avoid

entering into civil disputes, particularly while performing their police business, but

shall prevent or abate a breach of peace or crime in such cases. They shall avoid

making determinations on... a disposition of property absent court documents to

support said decision.” Doc. #44-1, PagelD#702. It is undisputed that, at the

time Plaintiffs were ordered to remove the signs from the disputed property, there

were no court documents showing that the property at issue belonged to Rick

Risner.

Defendants now argue, however, that it was necessary for them to make an

immediate determination about who owned the disputed property to avert a breach

of peace. Wortman testified that, from past experience, he knew that neighbor

disputes involving Frankie Hora “could get loud and disorderly.” Doc. #43,

21

PagelD#588. Risner reported to Officer Nelson that Hora had been harassing him

and threatening to sue him if he did not sell him his property. Defendants maintain

that, because this was a volatile situation, they had act quickly to abate a breach

of peace.

A reasonable jury could find otherwise. Frankie Hora may not have been

pleased that Risner bought the property next door, and Hora admittedly called the

fire department a few days earlier to report Risner’s unauthorized burning of debris.

Hora also threatened to sue Risner. There is no evidence, however, that Hora had

ever physically threatened Risner. Likewise, there is no evidence that Risner had

made any previous complaints about Plaintiffs. In short, although there may have

been some animosity between these two neighbors, any risk of immediate civil

unrest is speculative at best.

Notably, Risner waited until mid-morning on the day after the incident in

question to call the police department. See Doc. #48-1, PagelD#893. This delay

appears to belie any sense of urgency. Likewise, Nelson’s narrative supplement to

his investigative report does not convey any fear of an immediate breach of peace.

He wrote that, after speaking to Risner, he researched the property boundaries and

determined that the signs were on Risner’s property. He wrote that he would

attempt to notify Hora “at a later time.” /d. at PagelD#897. Based on these facts,

a reasonable jury could reject Defendants’ claim that they needed to make a quick

determination of property ownership in order to prevent a breach of the peace.

22

Based on all of the foregoing, the Court concludes that, under the three-part

balancing test set forth in Mathews v. Eldridge, a reasonable jury could find that

Plaintiffs were not afforded adequate due process protections prior to being

deprived of their protected interest in the disputed property.

Having found that the facts, taken in the light most favorable to Plaintiffs,

support a finding that Defendants’ conduct violated Plaintiffs’ Fourteenth

Amendment procedural due process rights, the next step in the qualified immunity

analysis is whether the law was clearly established.

2. Clearly Established Law?

In Plumhoff v. Rickard, 572 U.S. 765, 778-79 (2014), the Supreme Court

held that “a defendant cannot be said to have violated a clearly established right

unless the right’s contours were sufficiently definite that any reasonable official in

the defendant’s shoes would have understood that he was violating it.”

In determining whether the law was clearly established, the Court looks first

to decisions of the Supreme Court, then to decisions of the Sixth Circuit and other

courts within the Sixth Circuit, and then to decisions of other federal appellate

courts. Andrews v. Hickman Cty., 700 F.3d 845, 853 (6th Cir. 2012). Although

the conduct at issue in those cases need not be identical, “existing precedent must

have placed the statutory or constitutional question beyond debate.” Ashcroft v.

al-Kidd, 563 U.S. 731, 741 (2011). See also Baker v. Union Twp., 587 F. App’x

229, 233 (6th Cir. 2014) (noting that the right at issue should not be defined at “a

high level of generality,” but neither should it be defined so narrowly to require the

23

“circumstances of the alleged violation” to be “identical to cases already

decided.”).

In its Decision and Entry on the Perry Township Defendants’ Motion for

Judgment on the Pleadings, the Court held that the law was clearly established

such that reasonable officers standing in the shoes of Defendants would have

known that their conduct, in ordering Plaintiffs to remove the signs prior to notice

and a hearing, was unconstitutional.'' Doc. #37, PagelD##259-63, It noted that

the Third Circuit, in Abbott v. Latshaw, 164 F.3d 141 (3d Cir. 1998), held that “it

is not for law enforcement officers to decide who is entitled to possession of

property. Rather, it is the domain of the courts, and citizens are to have a

meaningful opportunity to be heard as to their rights before they are finally

deprived of possession of property.” /d. at 149 (citing Fuentes v. Shevin, 407

U.S. 67 (1972)). The Court finds no reason to revisit that analysis in any detail.

Defendants argue that Abbott is distinguishable because the plaintiff in that

case was given no opportunity to prove rightful ownership of the vehicle before

the officers determined that it belonged to his ex-wife and ordered him give her

"Defendants again argue that they are entitled to qualified immunity because

they made a “reasonable mistake of fact” when they determined that the farm

market signs were located on Risner’s property. However, as the Court noted in

its previous Decision and Entry, Doc. #37, PagelD#262 n.4, the relevant question

is not whether Defendants made a reasonable mistake in determining property

boundaries, but whether they made a reasonable mistake in ordering the removal

of the signs from the disputed property without notice and a meaningful

opportunity to be heard.

24

possession of it. However, viewing the evidence in the light most favorable to

Plaintiffs herein, Defendants fare no differently. Hora testified that the officers

determined that Risner owned the disputed property and ordered Hora to remove

the signs prior to giving him any opportunity to prove that he owned the land.

Defendants further argue that Abbott is distinguishable because the officers

in that case made a final determination concerning who was entitled to possession

of the vehicle. According to Defendants, in this case, they did not “forever ban

Plaintiffs from their real property.” Doc. #46, PagelD#853. They gave Hora the

opportunity to present a boundary survey to fully resolve the issue. As previously

noted, however, Hora denies that Defendants presented him with this option.

Moreover, even after he submitted a copy of his November 2017, survey

and asked township officials to acknowledge that he owned the disputed property,

to correct the records of the investigation, to inform Risner of the survey results,

and to grant him (Hora) permission to erect the signs in their previous location, he

received no response. Doc. #42, PagelD#409. With the alleged ongoing threat of

arrest hanging over his head, Hora, in an abundance of caution, has not reentered

the disputed property. As a practical matter, therefore, it could be said that he is

still being deprived of the use of his property.

Defendants cite to two other cases in support of their argument that

Plaintiffs’ rights were not clearly established— Wessendarp v. Berling, No. 1:12-cv-

559, 2013 WL 3353886 (S.D. Ohio July 3, 2013), and Skovgard v. Pedro, 448 F.

App’x 538 (6th Cir. 2011). These two unreported cases, however, involved

25

claims of criminal trespass. They are, therefore, irrelevant. Plaintiffs note that

they do not argue that Defendants violated their due process rights when they

threatened to arrest them if they crossed over Risner’s land to reach the disputed

property after the date in question. All agree that the mere presence of Horas’

personal property, /.e., the farm market signs, on the disputed rea/ property would

not give rise to a claim of criminal trespass. In the instant case, the relevant

question is whether Defendants had to give Plaintiffs notice and a meaningful

opportunity to be heard prior to determining that Risner owned the disputed

property and ordering Plaintiffs to remove their signs. Per Abbott, a reasonable

officer standing in Defendants’ shoes would have known that their conduct

violated Plaintiffs’ clearly established rights. '*

Accordingly, Defendants Stephen Nelson and William Wortman are not

entitled to qualified immunity on the Fourteenth Amendment procedural due

process claims brought against them in their individual capacities.

12 Wessendarp involved a plaintiff who claimed to have a life membership at a

golf club. Following an incident involving a female vendor, he was told by the

manager that he was no longer welcome. When he returned anyway, the manager

called the police, who threatened to arrest him for criminal trespass. He sued the

officers, alleging a due process violation. In Skovgard, plaintiffs were arrested for

criminal trespass at an abortion clinic after police officers mistakenly determined

that plaintiffs were on private property rather than on the public right-of-way

adjacent to the clinic.

26

IV. Conclusion

For the reasons set forth above, the Court OVERRULES Defendants Stephen

Nelson and William Wortman’s Motion for Summary Judgment, Doc. #46.

The Court will hold a conference call on June 9, 2021, at 4:30 p.m. to

discuss a new trial date and other dates.

Date: May 24, 2021 I hein: ia \ ver

WALTER H. RICE

UNITED STATES DISTRICT JUDGE

27