Harris v. German Township, Ohio

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

NEAL HARRIS, et a/,, .

Plaintiffs,

V. Case No. 3:19-cv-341

GERMAN TOWNSHIP, OHIO, et JUDGE WALTER H. RICE

al,

Defendants.

DECISION AND ENTRY OVERRULING MOTION FOR PARTIAL

SUMMARY JUDGMENT OF PLAINTIFFS NEAL AND JOY HARRIS

(DOC. #53); SUSTAINING GERMAN TOWNSHIP DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT (DOC. #55) AND

DEFENDANT CHERYL WATSON’S MOTION FOR SUMMARY

JUDGMENT (DOC. #56) ON 42 U.S.C. 81983 CLAIMS; DECLINING

TO EXERCISE SUPPLEMENTAL JURISDICTION OVER STATE LAW

CLAIMS; JUDGMENT TO ENTER IN FAVOR OF DEFENDANTS AND

AGAINST PLAINTIFFS; TERMINATION ENTRY

Plaintiffs Neal and Joy Harris filed suit against German Township, Ohio, its

Board of Trustees, Trustees Benjamin DeGroat, Jacob Stubbs and Mark Cross,

German Township Zoning Inspector Valorie Hill, the Township Police Department,

Police Chief Joseph Andzik, Officer Steven Marsden and Sergeant Christopher

Birch (the “German Township Defendants”), and former German Township

Zoning Inspector Cheryl Watson.

The claims stem from a dispute involving a fence along Plaintiffs’ property

line. The First Amended Complaint includes numerous claims under 42 U.S.C.

§ 1983, and state law claims of civil conspiracy, intentional infliction of emotional

distress, malicious criminal prosecution, malicious civil prosecution, abuse of

process, and respondeat superior liability.

This matter is currently before the Court on three summary judgment

motions: (1) Plaintiffs’ Motion for Partial Summary Judgment, Doc. #53; (2) the

German Township Defendants’ Motion for Summary Judgment, Doc. #55; and (3)

Defendant Cheryl Watson’s Motion for Summary Judgment, Doc. #56.

I. Background and Procedural History

The relevant facts in this case are largely undisputed. Plaintiffs Neal and

Joy Harris own 13 acres on Little Twin Road in German Township. They own the

land on both sides of Little Twin Creek, which runs near the eastern border of their

property. Mark Haffner owns six acres of land to the east of their property. His

house, which used to be an old hunting cabin, sits approximately six feet from the

property line. In 2011, Haffner allegedly began trespassing on the Harris’s

property to illegally dump gravel, bricks and broken concrete into the creek. The

Harrises maintain that this effectively destroyed the eastern bank of the creek.

The Harrises decided to construct an 8-foot privacy fence along the eastern

property border. German Township Zoning Resolution Article 39, Section 3909,

states that fences located in a front yard shall not exceed 3 % feet in height.

Because the proposed fence would extend beyond the front of their house, the

Harrises sought a variance. In December of 2012, the German Township Board of

Zoning Appeals (“BZA”) granted them the requested variance. Construction of the

fence took place in the Spring of 2013. Haffner complained to the Township

officials because the fence blocked his view of the river and allegedly interfered

with his enjoyment of his property. Late in 2013, the Harrises began finding wood

planks from the fence in the creek and suspected that Haffner was to blame.

In 2014, the Township hired Defendant Cheryl Watson as its Zoning

inspector. In September of that year, Neal Harris informed Watson that Haffner

did not have a fence around his pool as required by the zoning regulations.

Watson investigated and advised Haffner that he either had to empty the pool or

put a fence around it.

Haffner then confronted Cheryl Watson about the Harris's fence. In March

of 2015, when she inspected the fence, she observed chains hanging from

portions of it, and noted that some portions of the fence were nailed to trees. The

fence was only partially painted and had many protruding nails. In addition,

portions of the fence were unstable due to erosion along the creek bank. Watson

believed that the BZA had erred in granting a variance. She asked the BZA to

revoke the variance, but the BZA told her that it lacked jurisdiction to do so. Her

similar requests directed to legal counsel for the Township and to the Township’s

Board of Trustees were also rebuffed.

Thereafter, on April 28, 2015, Watson informed the Harrises that the fence

was a nuisance. She gave them until June 12, 2015, to either repair the fence or

remove it. On June 17, 2015, Watson notified them that the Township would hold

a public hearing on July 13, 2015, to determine whether the fence was a nuisance.

On June 19, 2015, Joy Harris sent Watson a letter stating that she had taken care

of the protruding nails. However, when Watson returned to inspect the fence, she

found numerous protruding nails. At the July 13th hearing, Joy Harris promised

to remedy this issue. She also agreed to contact the Army Corps of Engineers to

shore up the creek bank that was eroding under the fence.

A follow-up hearing was held on August 10, 2015, during which Joy Harris

admitted that there were still protruding nails that she could not reach. Following

the hearing, the Township Board of Trustees adopted Resolution 2015-47, which

declared the Harris’s fence to be a public nuisance under Ohio Revised Code

§ 505.87. The Board gave them 14 days to abate the nuisance or remove the

fence.' On August 14, 2015, Trustee Jacob Stubbs sent a letter to the Harrises,

indicating that if they continued to make progress on repairing the fence, the

Board would not enforce Resolution 2015-47.

In September of 2015, the Harrises submitted a public records request to

the Township, asking for copies of all permits issued for Haffner’s property after

1993. Haffner’s residence was only six feet from the property boundary. The

Harrises maintained that the Township gave him preferential treatment by

The Board adopted this Resolution even though the Board’s legal counsel had

advised the Board that § 505.87 was limited to nuisances in the form of noxious

weeds, trash, refuse and debris, and therefore did not apply.

allowing him to convert the hunting cabin into a residence without requiring a

variance excusing the Township’s 50-foot rear-yard setback requirement.

Cheryl Watson sent an email to Trustee Stubbs, expressing her displeasure

with Joy Harris’s public records request and accusing her of harassment. Watson

also indicated that she had inquired at the municipal court about what needed to

be done to require the removal of certain sections of the Harris’s fence that were

more than eight feet high.

In 2016, the Army Corps of Engineers granted the Harrises permission to

restore the creek bank. As part of the restoration, the Harrises had to remove a

portion of the existing fence. In August of 2017, they replaced that portion of the

fence with a chain link fence. To deter further damage to the fence, they also

installed a security camera on the property line. Haffner complained to the police

about the camera.

In July of 2017, before the new fence was even installed, Watson again

emailed Stubbs, asking if they should schedule a time for the Fire Chief to inspect

the fence “and then declare it insecure, unsafe, structurally defective,” so that the

Board of Trustees “can, by resolution, provide for the removal of the structure.”

On September 1, 2017, Defendant Sergeant Christopher Birch and

Defendant Police Chief Joseph Andzik met with Miamisburg Municipal Court

Judge Robert Rettich to discuss the fence and the security camera. Judge Rettich

asked for a copy of the original variance. Former Township Zoning Inspector Lori

Rohrbach, who was then employed by the police department, told Sergeant Birch

that the replacement fence did not need a new permit.

On September 22, 2017, Defendant Officer Steve Marsden inspected the

security camera and spoke to Sergeant Birch. Birch then spoke to Haffner. They

allegedly concocted a plan whereby Haffner and his granddaughter would walk in

view of the camera the following day. Birch would then confiscate the camera

and, if he found pictures of the granddaughter on the camera, he would charge

the Harrises with voyeurism. Birch was disciplined for this conduct.

In October of 2017, the Board of Trustees determined that the Harrises

invalidated their variance when they built the replacement fence. The Board

determined that the replacement fence was an unpermitted structure and was not

properly installed. Although the Board held meetings to discuss the matter on

October 3rd and October 10th, the Harrises did not receive notice of either

meeting.

On October 10, 2017, the Board passed Resolution 2017-37, which ordered

Plaintiffs to remove the fence. Due to irregularities with the voting procedure, this

Resolution was rescinded on October 24, 2017, and replaced with Resolution

2017-40. Resolution 2017-40 states that portions of the originally constructed

fence are in a state of disrepair, that it is hazardous because nails are protruding

from it, and because neither the fence itself nor the ground on which It Is built is

properly supported. The Resolution further states that the new portion of the

fence is “an unpermitted fence that does not meet the stipulations of the variance

granted in 2012 and was not included in said variance.” Doc. #1-6, PagelD#40.

The Resolution declared the fence to be a nuisance pursuant to Ohio Revised

Code 8 505.86(B) and ordered its removal within 30 days.

The Harrises learned of this Resolution only after receiving a copy in the

mail. Their attorney requested documents related to the Resolution and

requested a hearing on the matter. Several months passed and the Township

took no action to enforce the Resolution. In the Spring of 2018, Cheryl Watson

resigned and Valorie Hill was hired as the new Zoning Inspector. On June 28,

2018, the Board of Trustees rescinded Resolution 2017-40, but did not notify the

Harrises that it had done so.

On July 13, 2018, Hill inspected the fence. On December 4, 2018, Hill issued

a Notice of Zoning Violation, stating that the 99-foot chain link replacement fence

was outside the scope of the 2012 variance and was, therefore, an unpermitted

structure. The Harrises received the Notice and appealed to the Board of Zoning

Appeals (“BZA”). A hearing was held on May 14, 2019.

The BZA determined that 89 feet of the chain link fence did not violate the

zoning regulations because it was simply a repair of the existing fence for which a

variance had been granted. However, it determined that 10 feet of the chain link

fence was first built outside the period of validity of the granted variance. It was,

therefore, new construction which required a separate variance. Following the

BZA's decision, the Township took no further action concerning the fence.

On October 23, 2019, the Harrises filed suit against German Township, its

Board of Trustees, Trustees Benjamin DeGroat, Jacob Stubbs and Mark Cross,

Cheryl Watson and Valorie Hill. The First Amended Complaint adds claims

against Chief Joseph Andzik, Officer Steven Marsden, Sergeant Christopher Birch

and the German Township Police Department. The First Amended Complaint

includes the following causes of action:

Count |: 42 U.S.C. § 1983 (Due Process) (against DeGroat, Stubbs,

Cross, Watson and Hill)

Count II: 42 U.S.C. 8 1983 (municipal liability based on unlawful decision

by policymakers)

Count lll: 42 U.S.C. § 1983 (municipal liability based on unlawful policy,

practice or custom)

Count!IV: U.S.C. 8 1983 (municipal liability based on ratification)

Count V: 42 U.S.C. § 1983 (municipal liability based on failure to train

and supervise township employees)

Count VI: U.S.C. § 1983 (Equal Protection) (against DeGroat, Stubbs,

Cross, Watson and Hill)

Count Vil: 42 U.S.C. § 1983 (municipal liability based on failure to train

and supervise police department employees)

Count Vill: Civil conspiracy

Count IX: — Intentional infliction of emotional distress

Count X: Malicious criminal prosecution

Count XI: Malicious civil prosecution

Count XII: Abuse of process

Count XIlll: ARespondeat superior for common law and state constitutional

claims

Plaintiffs have moved for summary judgment on Counts | and II of the First

Amended Complaint, Doc. #53, with respect to alleged due process violations.

The German Township Defendants have moved for summary judgment on all

claims, Doc. #55, and Defendant Cheryl Watson has moved for summary

judgment on all claims brought against her, Doc. #56.

ll. 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. /o. 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 a/so 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

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. Celotex, 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. /o. 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 § 2726 (3d ed. 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

Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989). If it so chooses, however, a

court may consider other materials in the record. Fed. R. Civ. P. 56(c)(3).

The standard of review for cross-motions of summary judgment does not

differ from the standard applied when a motion is filed by only one party to the

litigation. Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991). “The

10

fact that both parties have moved for summary judgment does not mean that the

court must grant judgment as a matter of law for one side or the other; summary

judgment in favor of either party is not proper if disputes remain as to material

facts. Rather, the court must evaluate each party's motion on its own merits.” /d.

(citations omitted).

ill. 42 U.S.C. § 1983 Claims (Counts | through VII)

Counts | through VII of the First Amended Complaint seek relief under 42

U.S.C. § 1983 for alleged violations of Plaintiffs’ constitutional rights. Section

1983 “‘is not itself a source of substantive rights,’ but merely provides ‘a method

for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S.

386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)).

To recover damages under 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).

Here, it appears to be undisputed that Defendants, at all relevant times,

were acting under color of state law. At issue is whether they violated a right

secured by the Constitution or laws of the United States. Plaintiffs have alleged

violations of their substantive and procedural due process rights and their equal

protection rights as guaranteed by the Fourteenth Amendment to the United

States Constitution.

1]

Defendants DeGroat, Stubbs, Cross, Watson and Hill are sued in their

official and individual capacities. A claim brought against a government official in

his or her official capacity is the equivalent of a claim brought against the

governmental entity of which the official is an agent. A claim brought against a

government official in his or her individual capacity, however, seeks to impose

personal liability for alleged constitutional violations. See Kentucky v. Graham,

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

A. Statute of Limitations

State law governs the statute of limitations applicable to a 8 1983 action.

Wallace v. Kato, 549 U.S. 384, 387 (2007). In Ohio, § 1983 claims are governed by

the two-year statute of limitations for bodily injury actions. See Browning v.

Pendleton, 869 F.2d 989, 992 (6th Cir. 1989) (en banc) (citing Ohio Rev. Code 8

2305.10). Such claims accrue when the plaintiff knows or has reason to know of

the injury which is the basis of his action. Cooey v. Strickland, 479 F.3d 412, 416

(6th Cir. 2007).

Plaintiffs filed their Complaint on October 23, 2019. Accordingly, only those

§ 1983 claims that accrued after October 23, 2017, are actionable. As Defendants

note, much of the alleged wrongdoing took place long before that. Defendants

ask the Court to exclude from consideration any conduct occurring prior to

October 23, 2017, including all claims arising out of the passage of Resolution

2015-47, which first declared the fence to be a nuisance.

12

Citing Hensley v. Columbus, 557 F.3d 693 (6th Cir. 2009), Plaintiffs ask the

Court to apply the “continuing violation” doctrine to toll the statute of limitations

on their constitutional claims. A continuing violation exists if: “(1) the defendants

engage in continuing wrongful conduct; (2) injury to the plaintiffs accrues

continuously; and (3) had defendants at any time ceased their wrongful conduct,

further injury would have been avoided.” /d. at 697.

The continuing violation doctrine, however, is narrowly applied. In the

Sixth Circuit, it is generally limited to Title VIl cases and comes into play only

when there is “some evidence of present discriminatory activity,” such as

ongoing unequal pay for equal work, or when there “has occurred a longstanding

and demonstrable policy of discrimination.” LAL Props. v. Portage Metro Hous.

Auth., 55 F.3d 1097, 1105-06 (6th Cir. 1995) (internal quotations omitted). The

Sixth Circuit has rarely extended the doctrine to § 1983 actions. Sharpe v.

Cureton, 319 F.3d 259, 267 (6th Cir. 2003) (citing LAL Props., 55 F.3d at 1106 n.3).

Even in Hensley, the § 1983 case cited by Plaintiffs, the court refused to apply the

continuing violation doctrine to that set of facts. 557 F.3d at 697-98.

Assuming arguendo that the continuing violation doctrine were available in

§ 1983 cases, it would not apply here. There is no evidence of “present

discriminatory activity.” Rather, it is undisputed that the Township Defendants

have taken no action since December of 2018 to force Plaintiffs to remove or

repair the fence. Moreover, rather than alleging a continuing “over-arching policy

of discrimination,” LAL Props., 55 F.3d at 1106, Plaintiffs allege that “from 2015 to

13

2018, the Township—through its elected officials and employees—committed a

series of separate unlawful acts to invalidate and revoke the variance given to

Neal and Joy in 2012.” Doc. #60, PagelD#1998 (emphasis added).

Each separate act described in the Amended Complaint would have put

Plaintiffs on notice of the alleged constitutional violation, thereby triggering the

two-year statute of limitations for that particular act. Under the circumstances

presented here, the Court finds that the continuing violation doctrine does not

apply. Accordingly, the Court will not consider any alleged wrongdoing that

occurred prior to October 23, 2017.

This significantly narrows the scope of Plaintiffs’ § 1983 claims. The only

conduct that remains at issue is: (1) the Township’s October 24, 2017, passage of

Resolution 2017-40 (which was later rescinded); and (2) Hill’s issuance of the

December 4, 2018, Notice of Zoning Violation (which was later significantly

modified by the BZA).

B. Claims Against Individual Defendants (Counts | and VI)

With respect to the § 1983 claims brought against them in their individual

capacities (in Counts | and VI of the First Amended Complaint), Defendants

DeGroat, Stubbs, Cross, Hill and Watson invoke the doctrine of qualified

immunity. 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,

14

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 Livingston,

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

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). In determining whether a defendant is 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

Silberstein 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.

Here, the Court turns first to the question of whether the facts, taken in the

light most favorable to Plaintiffs, show that Defendants’ conduct violated a

constitutional right, namely the guarantees of due process or equal protection.

Because the Court concludes that, based on the evidence presented, no

15

reasonable jury could find that any individual defendant violated Plaintiffs’

constitutional rights, Defendants are entitled to qualified immunity on the claims

brought against them in their individual capacities. The Court need not, and does

not, address the question of whether those rights were clearly established.

1. Due Process Claims (Count 1)

The Fourteenth Amendment to the United States Constitution provides that

no State shall “deprive any person of life, liberty, or property, without due process

of law.” U.S. Const. amend. XIV, § 1. The Due Process Clause has both

procedural and substantive components. “Procedural due process is traditionally

viewed as the requirement that the government provide a ‘fair procedure’ when

depriving someone of life, liberty, or property; substantive due process ‘protects

individual liberty against certain government actions regardless of the fairness of

the procedures used to implement them.'’” EJS Props., LLC v. City of Toledo, 698

F.3d 845, 855 (6th Cir. 2012) (quoting Co/lins v. City of Harker Heights, 503 U.S.

115, 125 (1992)).2 In Pearson v. City of Grand Blanc, 961 F.2d 1211 (6th Cir. 1992),

the court held that “citizens have a substantive due process right not to be

subjected to arbitrary or irrational zoning decisions.” /d, at 1217.

2 For example, substantive due process rights may be violated when government

action impinges on a fundamental right or “shocks the conscience.” Government

action may shock the conscience, in a constitutional sense, when it is “arbitrary or

capricious.” Pearson v. City of Grand Blanc, 961 F.2d 1211, 1216-17 (6th Cir.

1992). See also Bowers v. City of Flint, 325 F.3d 758, 763 (6th Cir. 2003)

(explaining that the “arbitrary and capricious” standard is simply another

formulation of the “shocks the conscience” standard).

16

Here, in Count | of the First Amended Complaint, Plaintiffs have alleged

violations of their substantive and procedural due process rights. As previously

discussed, however, the two-year statute of limitations severely limits the scope

of Plaintiffs’ claims. With respect to the claims that are not time-barred, Plaintiffs

allege that Defendants DeGroat, Stubbs, Cross, Watson and Hill violated their

substantive due process rights by adopting illegal enforcement actions (the Notice

of Zoning Violation) and resolutions (Resolution 2017-40) that lacked any

legitimate legal and legislative purpose. Plaintiffs also allege that Defendants

violated their procedural due process rights by arbitrarily depriving them of a

protected property interest without appropriate notice and the opportunity to be

heard.

The German Township Defendants and Cheryl Watson have moved for

summary judgment on the due process claims. Plaintiffs have also moved for

summary judgment on these claims. For the reasons set forth below, as to Count

| of the First Amended Complaint, the Court sustains Defendants’ motions for

summary judgment and overrules Plaintiffs’ motion for summary judgment.

To succeed on either their substantive or procedural due process claim,

Plaintiffs must first prove that they have a constitutionally-protected property or

liberty interest, and that they were deprived of that interest. See E/S Props., LLC

v. City of Toledo, 698 F.3d 845, 855 (6th Cir. 2012) (setting forth elements of

substantive and procedural due process claims).

17

Plaintiffs maintain that they have a constitutionally-protected property

interest in using and enjoying their land in accordance with the zoning variance

granted by the Township in 2012. The Court agrees. See, e.g., EJS Props., 698

F.3d at 856 (holding that property owners have a property interest “in a

discretionary benefit, such as a re-zoning ordinance, after it is conferred.”);

Chandler v. Vill. of Chagrin Falls, 296 F. App’x 463, 470 (6th Cir. 2008) (holding that

a property owner has a protected property interest in a building permit after it is

issued).

That variance allowed Plaintiffs to build an 8-foot privacy fence along a

certain portion of their eastern property boundary. However, it did not insulate

them from all enforcement actions. In fact, the Zoning Certificate issued in 2012

specifically states that “[t]he issuance of this Permit does not allow the violation

of German Township Zoning Resolutions or other governing Regulations.” Doc.

#1-2, PagelD#32. Accordingly, to the extent that the fence posed a safety hazard,

the variance did not necessarily prohibit Defendants from ordering its removal.

Moreover, that variance, which expired six months after it was issued, did

not give Plaintiffs blanket permission, years later, to extend the length of the

original fence. The Board of Zoning Appeals (“BZA”) found that when Plaintiffs

rebuilt a portion of the fence in conjunction with the creek bed repair, they

extended the fence an additional 10 feet. Plaintiffs have presented no evidence to

the contrary. The BZA determined that this 10-foot extension was outside the

scope of the 2012 variance. As such, although the Court finds that Plaintiffs have

18

a protected property interest in the variance granted in 2012, they do not have a

protected property interest in the 10-foot extension of the fence.

The next question is whether Plaintiffs were deprived of their protected

property interest in the 2012 variance, either by the passage of Resolution 2017-

40, or by the December 2018, Notice of Zoning Violation. Based on the evidence

presented, no reasonable jury could find that any such deprivation has taken

place.

Resolution 2017-40 ordered the removal of the fence within 30 days.

Nevertheless, after Plaintiffs requested a formal hearing, the Township took no

action to enforce that Resolution and, in June of 2018, the Township rescinded the

Resolution. Under these circumstances, it cannot be said that Plaintiffs were

deprived of any protected property interest by the passage of Resolution 2017-40.

The December 2018, Notice of Zoning Violation acknowledges that the

original 71-foot-long, 8-foot wooden privacy fence that was built pursuant to the

2012 variance complies with Zoning Resolution Article 39 Section 3909. However,

according to Zoning Inspector Valorie Hill, the 99-foot-long, 8-foot chain link fence

that was first constructed in 2016 is outside the scope of the 2012 variance and is

therefore in violation of the Zoning Resolution. Doc. #1-9, PagelD#52. The Notice

gave the Harrises 30 days to correct the violation.

Again, however, Plaintiffs cannot show that this Notice led to the

deprivation of a protected property interest in the 2012 variance. Plaintiffs

immediately appealed the Notice of Zoning Violation and requested a hearing by

19

the Board of Zoning Appeals (BZA”). It is undisputed that, during the pendency of

that appeal, the entire chain link fence remained in place and the Township took

no further action against Plaintiffs.

On appeal, the BZA agreed with Plaintiffs that 89 feet of the 99-foot chain

link fence was simply a “repair” of the existing fence and, given that this portion

of the fence fell within the scope of the 2012 variance, it did not violate Article 39,

Section 3909, of the German Township Zoning Resolution. The Township has

taken no further action to require Plaintiffs to remove or repair any of the 89-foot

portion of chain link fence in which Plaintiffs have a protected property interest.*

The Court finds that, under the circumstances presented here, no

reasonable jury could find that Plaintiffs were actually deprived of their protected

property interest in being able to use their property in accordance with the

variance granted to them in 2012. See, e.g., Klein v. Donatucci, 861 F. App'x 503,

508 (3d Cir. 2021) (holding that where government official unsuccessfully

attempted to seize control of protected property interest, plaintiff could not show

that she suffered an actual deprivation as required to succeed on due process

claim).

3 As previously discussed, Plaintiffs have no protected property interest in the

additional 10 feet of chain link fence which was first built outside the period of

validity of the 2012 variance. The BZA found this addition to be “new

construction” and determined that a separate variance was required. Doc. #1-11,

PagelD#58. Even as to this new section of fence, the Township has taken no

further action to require Plaintiffs to remove or repair it.

20

Given that Plaintiffs have failed to present sufficient evidence of the

deprivation of a constitutionally-protected property interest, the Court need not

consider the remaining elements of their substantive or procedural due process

claims. See Am. Exp. Travel Related Servs. Co., Inc. v. Kentucky, 641 F.3d 685, 688

(6th Cir. 2011) ("a plaintiff must demonstrate a deprivation of a constitutionally

protected liberty or property interest in order to establish a due process violation

based on discretionary conduct of government officials."); Warren v. City of

Athens, Ohio, 411 F.3d 697, 708 (6th Cir. 2005) ("Only after a plaintiff has met the

burden of demonstrating that he possessed a protected property or liberty interest

and was deprived of that interest will the court consider whether the process

provided the plaintiff in conjunction with the deprivation, or lack thereof, violated

his rights to due process."). Nevertheless, for the sake of completeness, the Court

will briefly address the other elements of both claims.

The Court turns first to the substantive due process claim. Substantive due

process does not “offer recourse for every wrongful action taken by the

government.” EJS Props., 698 F.3d at 862. “A citizen does not suffer a

constitutional deprivation every time he is subject to the petty harassment of a

state agent.” /d. (quoting Vasquez v. City of Hamtramck, 757 F.2d 771, 773 (6th

Cir. 1985)). As the Sixth Circuit noted in Pearson, it is “extremely rare” for a

federal court to find a substantive due process violation in the context of an

administrative zoning action. “The vast majority of such attacks may readily be

disposed of on summary judgment.” Pearson, 961 F.2d at 1222.

21

To prevail on their substantive due process claim, Plaintiffs must prove that

they were deprived of a constitutionally protected property interest by arbitrary

and capricious action. Federal court review is limited to determining whether

Defendants “paid attention to the evidence adduced and acted rationally upon it.”

The administrative action cannot be set aside as arbitrary and capricious if there is

“some factual basis” for it. /o. Plaintiffs must prove that there is “no rational

basis” for the decision. JofAnson v. Morales, 946 F.3d 911, 937 (6th Cir. 2020).

With these standards in mind, the Court concludes that no reasonable jury

could find that Defendants’ conduct was arbitrary and capricious. The Board of

Trustees enacted Resolution 2017-40 after finding that the fence was unsafe.

Plaintiffs readily admit that the fence still had protruding nails. In addition, the

fence itself and the ground on which it was built were not properly supported,

rendering it hazardous to those in the vicinity. The Sixth Circuit has held that

safety is a legitimate governmental interest. Shoemaker v. City of Howell, 795

F.3d 553, 567 (6th Cir. 2015) (collecting cases). Given that the Board’s passage of

Resolution 2017-40 is rationally related to a legitimate governmental interest, it

cannot be deemed arbitrary and capricious in the constitutional sense.

Plaintiffs’ arguments to the contrary are misplaced. They argue that the

Board improperly relied on Ohio Revised Code §505.86(B) as the source of its

authority to enact Resolution 2017-40. That statute allows a township board of

trustees to order the removal or repair of a structure that has been declared

“insecure, unsafe, or structurally defective” by the fire department or building

22

department.’ It is undisputed that no such determination was made in this case.

Rather, it was the Zoning Inspector who found the fence to be unsafe.

Defendants argue, however, that Resolution 2017-40 nevertheless complied

with the spirit of the law. Moreover, the fact that the Board of Trustees may have

violated state law in enacting Resolution 2017-40 does not, in and of itself, give

rise to a substantive due process claim, even if the Board acted in bad faith. See

Chesterfield Dev. Corp. v. City of Chesterfield, 963 F.2d 1102, 1105 (8th Cir. 1992)

(“A bad-faith violation of state law remains only a violation of state law."); WMX

Techs., Inc. v. Gasconade Cty., Mo., 105 F.3d 1195, 1200 (8th Cir. 1997) ("A

violation of state law... does not amount to the kind of ‘truly irrational’

governmental action which gives rise to a substantive due process claim.");

Sameric Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 594 (3d Cir.

1998) (holding that, even if the City exceeded its authority, the error “is only one

of law, and such an error is not sufficient in itself to establish a substantive due

process claim.").

This same reasoning also defeats Plaintiffs’ argument that, in enacting

Resolution 2017-40, the Board unlawfully considered the replacement fence to be

an “unpermitted structure” when, in fact, no additional permit was required. See

Natale v. Town of Ridgefield, 170 F.3d 258, 262 (2d Cir. 1999) (“Arbitrary conduct

that might violate zoning regulations as a matter of state law is not sufficient to

4 Plaintiffs also deny that the fence constitutes a “structure” as that term is used

in § 505.86(B), but cite no authority for this proposition.

23

demonstrate conduct so outrageously arbitrary as to constitute a gross abuse of

governmental authority that will offend the substantive component of the Due

Process Clause.”).

The Court finds that, even if Plaintiffs could somehow show that they were

deprived of a constitutionally-protected property interest, they cannot show that

Defendants’ conduct was arbitrary and capricious. Because the Board’s passage

of Resolution 2017-40 is rationally related to a legitimate governmental interest,

i.e., safety, it cannot be deemed arbitrary and capricious in the constitutional

sense. For this reason also, Defendants are entitled to summary judgment on

Plaintiffs’ substantive due process claim.

Likewise, assuming arguendo that Plaintiffs were somehow deprived of a

protected property interest, they cannot satisfy the remaining element of their

procedural due process claim. To succeed on their procedural due process claim,

Plaintiffs must establish not only that they were deprived of a constitutionally-

protected property interest, but also that the Township did not afford them

adequate procedural protections. Cahoo, 912 F.3d at 900.

The procedural due process 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). Typically, this requires

that notice and an opportunity to be heard must occur before the deprivation

takes place. Warren v. City of Athens, 411 F.3d 697, 709 (6th Cir. 2005). However,

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the Sixth Circuit has also held that, in deciding how much process is due, “ pre-

and post-deprivation processes should be considered together as a single

package.” Shoemaker v. City of Howell, 795 F.3d 553, 559 (6th Cir. 2015).

In the context of zoning cases, the procedures that are due are “not

extensive.” Hart v. City of Ecorse, No. 05-71061, 2006 WL 8431924, at *4 (E.D.

Mich. June 20, 2006), aff'd sub nom. Mator v. City of Ecorse, 301 F. App'x 476 (6th

Cir. 2008). The Sixth Circuit has repeatedly held that plaintiffs were afforded

“complete procedural due process” when they were notified of their right to

appeal a zoning decision to the board of zoning appeals. See Sinclair v. City of

Ecorse, 366 F. App’x 579, 583 (6th Cir. 2010); Dubuc v. Twp. of Green Oak, 406 F.

App’x 983, 989 (6th Cir. 2011).

Here, Plaintiffs were given reasonable notice and an opportunity to be

heard at a meaningful time. They cite no authority for their argument that they

had a right to notice and an opportunity to be heard priorto the enactment of

Resolution 2017-40.° It is undisputed that Plaintiffs received a copy of Resolution

5 Factors to be considered in determining what process is owed include: (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.” Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

6 Notably, before Resolution 2017-40 was passed, the Harrises had already

participated in several evidentiary hearings involving the condition of the fence

and were fully aware that the Township considered the fence to be a safety

hazard.

25

2017-40 after it was passed. That Resolution gave them 20 days to request a

hearing concerning the matter. Plaintiffs did so, and requested that the hearing

be continued until Defendants produced numerous public records related to the

Resolution. The Board then rescinded the Resolution before any hearing was

held. It is undisputed that, in the interim, the Board took no action to enforce the

Resolution. Under these circumstances, with respect to Resolution 2017-40, it

cannot be said that Plaintiffs were deprived of a protected property interest

without adequate procedural protections.’

Likewise, it is undisputed that Plaintiffs received the Notice of Zoning

Violation issued in December of 2018, and timely challenged that administrative

decision by filing an appeal with the Board of Zoning Appeals. A hearing was

held in May of 2019, during which Plaintiffs were given an ample opportunity to

make their position known.® The fact that Plaintiffs won that appeal, in large part,

speaks to the adequacy of the procedural protections that were available to them.

Again, Defendants took no action to force Plaintiffs to remove the fence during the

7 Again, even though the Board may have lacked authority to order removal of

the fence absent a determination, by the fire department, that the fence was an

unsafe structure, this violation of state law does not automatically constitute a

procedural due process violation. See DePiero v. City of Macedonia, 180 F.3d 770,

788 (6th Cir. 1999) (holding that a violation of state law does not “automatically

translate into a deprivation of procedural due process under the United States

Constitution.”); Shoemaker, 795 F.3d at 560 (same).

8 Plaintiffs complain that it was unreasonable that they had to wait five months

for the hearing to take place. However, that delay was caused by illness and there

is no evidence that Plaintiffs were in any way prejudiced by the delay.

26

pendency of that appeal, and have taken no further action since then. Therefore,

no reasonable jury could find that Plaintiffs were deprived of a protected property

interest without adequate procedural protections. In this context, Plaintiffs were

given all the process that they were owed. See Sinclair, 366 F. App’x at 583;

Dubuc, 406 F. App’x at 989.

For the reasons set forth above, the Court finds that Defendants are entitled

to summary judgment on Plaintiffs’ § 1983 claims alleging substantive and

procedural due process violations. Accordingly, the Court sustains Defendants’

motion for summary judgment on Count | of the First Amended Complaint and

DISMISSES that Count WITH PREJUDICE. The Court overrules Plaintiffs’ motion

for partial summary judgment on Count I.

2. Equal Protection Claim (Count VI)

The Equal Protection Clause of the Fourteenth Amendment provides that no

State shall deny to any person the equal protection of the laws. U.S. Const.

amend. XIV, § 1. States cannot make distinctions that “burden a fundamental

right, target a suspect class, or intentionally treat one differently from others

similarly situated without any rational basis for the difference.” Radvansky v. City

of Olmsted Falls, 395 F.3d 291, 312 (6th Cir. 2005) (citing Village of Willowbrook v.

Olech, 528 U.S. 562, 564 (2000) (per curium)).

Count | of the First Amended Complaint generally alleges that Defendants

violated Plaintiffs’ rights to due process and equal protection of the law. The

Equal Protection claim itself, however, is fully fleshed out in Count VI. It alleges

ZF

that Defendants DeGroat, Stubbs, Cross, Watson and Hill, acting under color of

state law, engaged in conduct intended to deny Plaintiffs equal protection of the

law, and treated them differently than similarly situated residents of German

Township. Plaintiffs allege that Defendants selectively enforced the laws of the

State of Ohio and the Township's zoning regulations, that they acted in an

irrational and arbitrary manner, and that their animus toward Plaintiffs, their

extraordinary efforts to force Plaintiffs to remove their fence, and their purposeful

discrimination against them violated Plaintiffs’ equal protection rights.

To succeed on their “class of one” claim, Plaintiffs must show that they

were “intentionally treated differently from others similarly situated” and that

“there is no rational basis for the difference in treatment.” O/ech, 528 U.S. at 564.

The German Township Defendants and Cheryl Watson have moved for summary

judgment on this claim.

Plaintiffs maintain that they are similarly situated to their neighbor, Mark

Haffner, and that they were intentionally treated differently with no rational basis

for the difference in treatment with respect to: (1) the need to obtain variances;

and (2) the enforcement of the Township's zoning regulations.

A German Township Zoning Resolution prohibited front yard fences that

were more than 3 ¥% feet tall. In 2012, the Township therefore required Plaintiffs to

get a variance to build an 8-foot fence in their front yard. Another Township

Resolution required residences to be set back at least 50 feet from the property

line. Plaintiffs note, however, that when Haffner converted the hunting cabin into

28

a residence, the Township did not require him to get a variance, even though the

cabin was located just 6 feet from their property line. Given that Plaintiffs were

aware of this alleged difference in treatment no later than September of 2015,

when they obtained the public records related to Haffner’s residence, this

particular portion of the claim is time-barred.

However, to the extent that Plaintiffs argue that the Township selectively

enforced its zoning code, this portion of the claim is not necessarily time-barred.

Plaintiffs argue that, after they brought Haffner’s violation of the setback rule to

the attention of Township officials in 2015, the Township took no action to enforce

the setback rule. In contrast, in 2017 and 2018, the Township instituted

enforcement actions against Plaintiffs concerning their fence, through the passage

of Resolution 2017-40 and the Notice of Zoning Violation.

Defendants argue that this claim fails on the merits because Plaintiffs

cannot show that they are similarly situated to Haffner. In assessing whether

others are similarly situated, “courts should not demand exact correlation, but

instead seek relevant similarity.” Perry v. McGinnis, 209 F.3d 597, 601 (6th

Cir.2000).

The Court agrees that Plaintiffs cannot show relevant similarity. As Cheryl

Watson explained to Plaintiffs, Haffner’s residence was originally built as storage

shed. As such, at that time, it was not subject to the 50-foot setback requirement.

Instead, the setback for a storage shed is only six feet. The Township later

granted a permit (akin to the variance granted to Plaintiffs), which allowed the

29

shed to be converted into a single-family residence. Doc. #52-10, PagelD#1835.

Moreover, the rear-yard setback requirement does not implicate any safety issues.

In contrast, the enforcement actions taken against Plaintiffs in 2017 and 2018

stemmed, at least in part, from the fact that portions of the fence had protruding

nails and were not properly secured. For this reason, the Court finds that Plaintiffs

were not similarly situated to Haffner.

Neither can Plaintiffs establish a lack of a rational basis for the difference in

treatment. To do so, they must either negate “every conceivable basis which

might support the government action” or demonstrate that “the challenged

government action was motivated by animus or ill-will.” Warren, 411 F.3d at 711.

Here, Plaintiffs claim that Defendants acted with malice and ill will. In support,

they cite only to Watson’s September 17, 2015, email to Trustee Stubbs

expressing her frustration with Joy Harris's repeated requests for public records

related to Haffner’s property, and her displeasure with the fact that certain

sections of the fence were higher than previously-granted variance allowed.

Watson told Stubbs, “We need to shut her down on this.”

However, to succeed on this theory, Plaintiffs must prove that the

Township's actions “were motivated by personal malice unre/ated to the

defendant's official duties.” Sanders v. City of Hodgenville, 323 F. Supp. 3d 904,

913 (W.D. Ky. 2018) (quoting K/imak v. Kent Cty. Sheriff's Dep't, 91 F. App’x 396,

401 (6th Cir. 2004)). In other words, the defendant “must have some pre-existing

bias or motive to retaliate against the plaintiff.” /d.

30

It is undisputed that Watson did not know Plaintiffs prior to her

interactions with them in her role as the Township Zoning Inspector. Any ill will

that existed between them arose in the context of that relationship. As such,

Plaintiffs cannot prove that Watson acted out of personal malice unrelated to her

official duties.

In short, based on the evidence presented, no reasonable jury could find

that Plaintiffs were similarly situated to Mark Haffner. Nor could a reasonable jury

find that there was no rational basis for the difference in treatment. Accordingly,

Defendants are entitled to summary judgment on the Equal Protection claim. The

Court therefore DISMISSES Count VI of the First Amended Complaint WITH

PREJUDICE.

C. Monell Liability

In Counts Il, Ill, IV, V and VII of the First Amended Complaint, Plaintiffs seek

to impose liability for the alleged constitutional violations on German Township.

A governmental entity cannot be held liable under § 1983 merely because it

employs an individual who engages in unconstitutional conduct. Rather, a

plaintiff must prove that a policy or custom of the governmental entity was the

“moving force” behind the alleged constitutional violation. Monel/ v. Dep’t of

Soc. Servs., 436 U.S. 658, 694 (1978). Such a policy or custom may consist of: “(1)

the municipality's legislative enactments or official agency policies; (2) actions

taken by officials with final decision-making authority; (3) a policy of inadequate

training or supervision; or (4) a custom of tolerance or acquiescence of federal

31

rights violations.” Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir.

2005).

Plaintiffs seek to impose municipal liability under several of these theories.

Nevertheless, absent a showing of constitutional injury, a municipality cannot be

liable for damages, regardless of the existence of a policy or custom. City of Los

Angeles v. Heller, 475 U.S. 796, 799 (1986). Given the Court’s finding that none of

the individual defendants violated Plaintiffs’ constitutional rights to substantive or

procedural due process or to equal protection of the law, there is no legal basis

for imposing 8 1983 liability on German Township.®

Accordingly, Counts Il, Ill, IV, V and VII of the First Amended Complaint are

DISMISSED WITH PREJUDICE.

IV. Common Law Claims (Counts VIII through XIll)

In Counts VIII through XiIll, Plaintiffs assert a variety of state law claims,

including civil conspiracy, intentional infliction of emotional distress, malicious

criminal prosecution, malicious civil prosecution, abuse of process, and

respondeat superior liability.

Because the Court has dismissed all federal claims, the Court declines to

exercise supplemental jurisdiction over these state law claims. See United Mine

Likewise, to the extent that DeGroat, Stubbs, Cross, Hill and Watson were also

sued in their official capacities, there is no legal basis for imposing § 1983 liability

on them.

a2

Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (holding that if federal claims

are dismissed before trial, the state claims should be dismissed as well); 28 U.S.C.

§1367(c)(3) (providing that a district court may decline to exercise supplemental

jurisdiction if it has dismissed all claims over which it has original jurisdiction).

Accordingly, Counts VIII through XIll are DISMISSED WITHOUT PREJUDICE

to refiling in a state court of competent jurisdiction.

V. Conclusion

For the reasons set forth above, the Court OVERRULES Plaintiffs’ Motion for

Partial Summary Judgment, Doc. #53.

The Court SUSTAINS the German Township Defendants’ Motion for

Summary Judgment, Doc. #55, and Defendant Cheryl Watson’s Motion for

Summary Judgment, Doc. #56, with respect to all claims brought under 42 U.S.C.

§ 1983. Said claims, as set forth in Counts | through VII of the First Amended

Complaint, are DISMISSED WITH PREJUDICE.

The Court declines to exercise supplemental jurisdiction over the state law

claims. Accordingly, Counts VIII through XIll of the First Amended Complaint are

DISMISSED WITHOUT PREJUDICE.

Judgment shall be entered in favor of Defendants and against Plaintiffs.

The captioned case is hereby ordered terminated upon the docket records

of the United States District Court for the Southern District of Ohio, Western

Division, at Dayton.

33

Date: March 23, 2022 ( Jost 4 vis

WALTER H. RICE

UNITED STATES DISTRICT JUDGE

34