McWain v. Clay Township

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

WILLIAM L. MCWAIN,

Plaintiff, Case No. 3:20-cv-123

vs.

CLAY TOWNSHIP, et al., District Judge Michael J. Newman

Defendants.

______________________________________________________________________________

ORDER: (1) GRANTING CLAY TOWNSHIP’S MOTION FOR SUMMARY

JUDGMENT (Doc. No. 44); (2) DENYING PLAINTIFF’S CROSS MOTION FOR

SUMMARY JUDGMENT (Doc. No. 45); (3) DENYING AS MOOT CLAY TOWNSHIP’S

MOTION IN LIMINE (Doc. No. 54); (4) GRANTING SUMMARY JUDGMENT FOR

ENGLEWOOD TRUCK TOWING & RECOVERY ON PLAINTIFF’S CLAIM; AND (5)

TERMINATING THIS CASE ON THE DOCKET

______________________________________________________________________________

Plaintiff William L. McWain (“McWain”)—through counsel—asserts a single count under

42 U.S.C. § 19831 against Defendants Clay Township, Montgomery County, Ohio; Clay Township

Police Department; Clay Township Trustees Dave Vore, Dale Winner, and Steve Woolf (“Clay

Township Trustees”) (collectively, “Clay Township”); and Englewood Truck Towing and

Recovery (“Englewood Towing”). Doc. No. 1 at PageID 1–2. McWain alleges that Clay

Township violated his due process rights, under the Fourteenth Amendment to the U.S.

Constitution, when it declared his property a nuisance and then removed certain items from his

property in October 2019. Id.

Before the Court are McWain’s and Clay Township’s cross-motions for summary

judgment on McWain’s § 1983 claim. Fed. R. Civ. P. 56; Doc. Nos. 44, 45. McWain and Clay

Township have filed opposition memoranda in response to the respective summary judgment

1 No other claims are pled here. Doc. No. 1 at PageID 1–2.

motions. Doc. Nos. 48, 52. Clay Township filed a reply brief in support of its summary judgment

motion. Doc. No. 53. McWain did not, and the time for doing so has passed. S.D. Ohio Civ. R.

7.2(a)(2). Englewood Towing does not join Clay Township’s motion. Therefore, the cross-

motions for summary judgment are now ripe for review.

Also pending is Clay Township’s motion in limine. Doc. No. 54. McWain filed an

opposition memorandum and Clay Township replied. Doc. Nos. 58, 60. Clay Township’s motion

in limine is also ripe for review.

I.

A. Statement of Undisputed Facts

This case began on McWain’s front yard. Doc. No. 1 at PageID 3. Since at least 2013,

Clay Township knew that McWain’s property was covered with junk and debris. Doc. No. 44-2

at PageID 265. Before Clay Township intervened, McWain’s front yard was littered with various

items including, inter alia, gardening equipment, children’s toys, gas tanks, tools, hoses, brooms,

plastic chairs, Christmas lights, carpeting, vacuums, piles of clothing, cabinet doors, piles of

newspapers, gas canisters, cardboard boxes, shower heads, glass bottles, a broken screen door, and

a flatscreen television. Doc. No. 45-3 at PageID 284–86.

Under Ohio Rev. Code § 505.87, “[a] board of township trustees may provide for the

abatement, control, or removal of vegetation, garbage, refuse, and other debris from land in the

township, if the board determines that the owner’s maintenance of that vegetation, garbage, refuse,

or other debris constitutes a nuisance.” In 2011, Clay Township adopted Nuisance Abatement

Resolution #06-2011, and an accompanying ordinance, to comply with Ohio Rev. Code § 505.87.

Doc. No. 44-1 at PageID 233; Ohio Rev. Code Ann. § 505.87. Pursuant to this resolution and

ordinance, Clay Township may declare a property a nuisance after a public hearing. Doc. No. 44-

1 at PageID 234–35. Clay Township must give the property owner notice of that hearing. Id.;

Ohio Rev. Code Ann. § 505.87(B). Specifically, Clay Township must send a certified mail notice

to the property owner,2 or post notice in the newspaper if the property owner’s address cannot be

reasonably obtained, that it is holding a public hearing to declare the property a nuisance. Doc.

No. 44-1 at PageID 234.

From 2013 to 2017, McWain received at least four notices from Clay Township that his

property violated the nuisance ordinance and would be subject to abatement if he did not clean it

up. See Doc. No. 44-1 at PageID 226–27 (reproducing notices sent by Clay Township to McWain

stating he was in violation of the nuisance ordinance on May 7, 2013; December 20, 2014; January

5, 2015; and September 27, 2017). On July 30, 2019, Clay Township hand-delivered the following

notice to McWain at his address:

The Clay Township Zoning Department inspected your property

after receiving complaints about the property. On June 26[], 2019,

I called you and left a voicemail to gain verbal compliance for the

junk items on your property. On July 15[], 2019, I spoke with you

and gave you fourteen (14) days to remove the items from the front

of your house. You stated to me that this would get done and the

items would be removed from the public’s view. On July 29[,] 2019,

I inspected the property and saw little to no improvement. You are

hereby advised that you are in violation of the Clay Township

Zoning Ordinance, specifically, Article 38, Section 3812B and the

Nuisance Abatement Resolution 06-2011 enacted upon September

16, 2011.

Doc. No. 44-1 at PageID 230, 231. On August 26, 2019, Clay Township delivered another notice

to McWain at his address:

On July 29[,] 2019, I inspected the property and saw little to no

improvement. A notice of violation was issued to you on July 30,

2019. On August 19, I inspected your property and still saw no

improvement, to which I informed you that on Monday, August

26[], 2019, you would be receiving your final notice on this issue.

You stated to me that you had been running a garage sale on your

property on this date (August 19). Per the Clay Township Zoning

Code Section 3701(E), all garage sales cannot exceed three (3) days

2 It may optionally post notice on the principal structure on the land. Doc. No. 44-1 at PageID 234.

in length and you are now past this allotted time. On Monday,

August 26[], 2019, little to no improvement has occurred . . . . This

violation must be brought into compliance with Articles and

Resolutions listed above within 15 days of receipt of this notice.

Failure to do so will cause the Clay Township Trustees to declare

the violation(s) and [sic] nuisance and have them abated at the

owner’s expense.

Id. at PageID 231, 232. On September 24, 2019, Clay Township sent another notice via certified

mail to McWain at his property, informing him that his property would be the subject of an October

7, 2019 nuisance hearing:

Notice is hereby given; the Clay Township Board of Trustees will

conduct a public hearing on Monday, October 7, 2019, beginning at

04:00 PM, at the Clay Township Offices, located at 8207 Arlington

Rd, Brookville, OH 45309. Zoning Incident Case # 19-002-09, a

nuisance abatement of your property at 8121 Arlington Rd,

Brookville, OH located in Clay Township, Section 21, Town 6,

Range 4E. Your property is in violation of the Clay Township

Zoning Ordinance, specifically, Article 38, Section 3812B and the

Nuisance Abatement Resolution 06-2011 enacted upon September

16, 2011.

Id. at PageID 244. Elizabeth Sheley, who has delivered mail for McWain and his wife for the past

21 years, signed for the notice and left it in McWain’s mailbox. Doc. No. 44 at PageID 231; Doc.

No. 44-3 at PageID 271–72. She was authorized to sign for, and accept, McWain’s mail on his

behalf. Doc. No. 44-3 at PageID 272. Clay Township then ran notice of the nuisance hearing in

the Brookville Star, a local newspaper. Doc. No. 44-1 at PageID 231.

On October 7, 2019, Clay Township held a nuisance hearing regarding McWain’s property.

Id. at PageID 258. McWain was not present. Id. At the hearing, Clay Township declared

McWain’s property a nuisance. Id. The following day, Clay Township sent McWain another

notice:

[T]he Clay Township Board of Trustees conducted a public hearing

on Monday, October 7, 2019, at 04:00 PM, at the Clay Township

Offices . . . . Your property is in violation of the Clay Township

Zoning Ordinance, specifically, Article 38, Section 3812B and the

Nuisance Abatement Resolution 06-2011 enacted upon September

16, 2011 . . . . The Board shall cause said nuisance to be abated or

removed in seven (7) days of this notice.

Id. at PageID 259. On October 21, 2019, Clay Township Trustees and police officers went to

McWain’s property and removed the various tools, appliances, old newspapers, clothes, and other

junk from his front yard. Id. at PageID 263–64. During the nuisance abatement, Clay Township

called Englewood Towing to tow McWain’s car that obstructed their removal. Id.

B. McWain’s Claims

McWain claims he did not receive the September 24, 2019 notice. Doc. No. 52-1 at PageID

320. McWain, in an affidavit, attests that Sheley was not entitled to accept mail on his behalf (but

has not pled any claims against her and does not seek relief from her). Id. at PageID 319–20. He

alleges Clay Township violated his due process rights by not affording him notice of the hearing

and disposing of, and/or damaging, his property. Doc. No. 45 at PageID 276. He further asserts

Englewood Towing is liable under § 1983 for negligently damaging his car. Id. at PageID 278–

79.

II.

“Summary judgment is only appropriate ‘if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter

of law.’” Keweenaw Bay Indian Cmty. v. Rising, 477 F.3d 881, 886 (6th Cir. 2007) (quoting

Bennett v. City of Eastpointe, 410 F.3d 810, 817 (6th Cir. 2005)). Once “a motion for summary

judgment is properly made and supported, an opposing party may not rely merely on allegations

or denials in its own pleading[.]” Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009)

(quoting Fed. R. Civ. P. 56(e)). Instead, the party opposing summary judgment has a shifting

burden and “must—by affidavits or as otherwise provided in [Fed. R. Civ. P. 56]—set out specific

facts showing a genuine issue for trial.” Id.

The Court’s standard of review does not change when the parties file cross motions for

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

Court must still “evaluate each motion on its own merits and view all facts and inferences in the

light most favorable to the non-moving party.” Wiley v. United States, 20 F.3d 222, 224 (6th Cir.

1994) (citing Taft Broad. Co., 929 F.2d at 248). Likewise, “[t]he filing of cross-motions for

summary judgment does not necessarily mean that an award of summary judgment is appropriate.”

Beck v. City of Cleveland, 390 F.3d 912, 917 (6th Cir. 2004) (citing B.F. Goodrich Co. v. U.S.

Filter Corp., 245 F.3d 587, 593 (6th Cir. 2001)).

Finally, the Court does not have to “search the entire record to establish that it is bereft of

a genuine issue of material fact.” Guarino v. Brookfield Twp. Trs., 980 F.2d 399, 404 (6th Cir.

1992) (citations omitted). “[T]he free-ranging search for supporting facts is a task for which

attorneys in the case are equipped and for which courts generally are not.” Id. at 406.

III.

42 U.S.C. § 1983 allows citizens to vindicate official deprivations of their constitutional

due process. See Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 583 (6th Cir. 2012). To state a

§ 1983 claim, a plaintiff must: (1) allege the violation of a right secured by the Constitution and

law of the United States; and (2) show that the alleged deprivation was committed by a person

acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). A plaintiff can allege

either procedural or substantive due process violations.

A. Procedural Due Process Standard

“[P]rocedural due process . . . protect[s] persons from deficient procedures that lead to the

deprivation of cognizable liberty interests.” Schulkers v. Kammer, 955 F.3d 520, 545 (6th Cir.

2020) (quoting Pittman v. Cuyahoga Cnty. Dep’t of Child. & Fam. Servs., 640 F.3d 716, 729 (6th

Cir. 2011)). “To establish a procedural due process violation, Plaintiffs must show (1) that they

have been deprived of a cognizable [property] interest, and (2) that such deprivation occurred

without adequate procedural protections.” Golf Vill. N., LLC v. City of Powell, 14 F.4th 611, 623

(6th Cir. 2021) (alterations in original) (quoting Schulkers, 955 F.3d at 545). Procedural “due

process requires that when a State seeks to terminate [a protected] interest . . . , it must afford

‘notice and opportunity for hearing appropriate to the nature of the case’ before the termination

becomes effective.” Pittman, 640 F.3d at 729 (quoting Bell v. Burson, 402 U.S. 535, 542 (1971)).

Constitutionally adequate notice is “notice reasonably calculated, under all the

circumstances, to apprise interested parties of the pendency of the action and afford them an

opportunity to present their objections.” Ming Kuo Yang v. City of Wyoming, 793 F.3d 599, 602

(6th Cir. 2015) (quoting Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1953)).

This does not mean actual notice, Jones v. Flowers, 547 U.S. 220, 226 (2006), but notice that is

“‘reasonable’ under the ‘particular circumstances,’” Ming Kuo Yang, 793 F.3d at 603 (quoting

Tulsa Pro. Collection Servs., Inc. v. Pope, 485 U.S. 478, 484 (1988)). A nuisance abatement given

with reasonable notice does not violate the owner’s due process rights. See, e.g., Crow v. City of

Springfield, 15 F. App’x 219, 224 (6th Cir. 2001). Including “[p]ost-hearing notice,” the test to

determine whether notice was reasonable is whether “many notice efforts amounted in the

aggregate to a reasonable effort to apprise [the plaintiff] of what was going on.” Ming Kuo Yang,

793 F.3d at 604.

B. Substantive Due Process Standard

Substantive due process prevents the government from depriving “individuals of certain

rights, regardless of the procedures used.” Siefert v. Hamilton Cnty, 951 F.3d 753, 765 (6th Cir.

2020) (citing Guertin v. State, 912 F.3d 907, 918 (6th Cir. 2019)). To prevail, McWain must prove

Clay Township deprived him of “‘a liberty or property interest,’ as well as ‘conscience-shocking

conduct.’” Id. at 766 (quoting Guertin, 912 F.3d at 922).

“Conscience-shocking” behavior is more than mere negligence. Siefert, 951 F.3d at 766.

It must be “so ‘brutal’ and ‘offensive’ that [it does] not comport with traditional ideas of fair play

and decency.” Range v. Douglas, 763 F.3d 573, 589–90 (6th Cir. 2014) (quoting Cnty. of

Sacramento v. Lewis, 523 U.S. 833, 846–47 (1998)). Naturally, this is a weighty threshold. See

id. at 589–92 (finding no conscience-shocking behavior in failure to terminate forensic officer after

he sexually abused murder victims’ bodies while he was intoxicated).

To show Clay Township deprived him of substantive due process when enforcing its

nuisance ordinance, McWain must show “(1) a constitutionally protected property or liberty

interest exists, and (2) the constitutionally protected interest has been deprived through arbitrary

and capricious action.” EJS Props., LLC v. City of Toledo, 698 F.3d 845, 855 (6th Cir. 2012)

(quoting Braun v. Ann Arbor Charter Twp., 519 F.3d 564, 573 (6th Cir. 2008)). A local

government’s action is “arbitrary and capricious” only if it is “willful and unreasoning, without

consideration and in disregard of the facts and circumstances of the case.” Pearson v. City of

Grand Blanc, 961 F.2d 1211, 1221 (6th Cir. 1992) (quoting Greenhill v. Bailey, 519 F.2d 5, 10 n.

12 (8th Cir. 1975)).

IV.

McWain does not specify in his complaint or motion which of his Fourteenth Amendment

due process rights were allegedly violated. See Doc. No. 1 at PageID 3–4; Doc. No. 45 at PageID

274–79. Giving him the benefit of the doubt, the Court construes his complaint as making both

procedural and substantive due process claims. For the reasons that follow, the Court finds

McWain cannot show that Clay Township or Englewood Towing violated his constitutional rights

under either theory.3

A. Clay Township’s Motion for Summary Judgment

1. Procedural Due Process Claim4

It is undisputed that Clay Township, via certified mail, delivered the September 24, 2019

notice of the final hearing to McWain’s address by giving it to Sheley, who placed it in his mailbox.

Doc. No. 44-1 at PageID 230; Doc. No. 44-3 at PageID 272. It is further undisputed that Clay

Township published notice of the nuisance hearing in the local newspaper. Doc. No. 44-1 at

PageID 228, 231. McWain cannot create a genuine dispute of material fact through his self-serving

affidavit denying this because he has not “ma[de] an affirmative showing with proper evidence in

order to defeat [Clay Township’s] motion.” Alexander, 576 F.3d at 558 (citing Street v. J.C.

Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989)). Thus, not only did Clay Township satisfy

3 Additionally, “[a] municipality is liable under § 1983 if the acts that violated a person’s rights were

undertaken pursuant to its policies and customs.” Mobley v. City of Detroit, 938 F. Supp. 2d 669, 684 (E.D.

Mich. 2012) (citing Monell v. Dep’t. of Soc. Servs., 436 U.S. 658, 690–94 (1978)). “[A] local government

may not be sued under § 1983 for an injury inflicted solely by its employees or agents.” Monell, 436 U.S.

at 694. McWain merely alleges that Clay Township, through its agents, violated his rights by removing the

items on his property. Doc. No. 1 at PageID 3–4; Doc. No. 45 at PageID 274–79. He does not identify any

policy or custom that Clay Township violated, and the nuisance abatement here was an isolated incident,

so his claim against Clay Township fails as a matter of law on this independent ground. See, e.g., Monell,

436 U.S. at 694.; cf. May v. Pierce Cnty., No. 3:19-cv-06167, 2020 WL 639681, at *2 (W.D. Wash. Feb.

11, 2020) (dismissing § 1983 claim where the plaintiff did not “allege that any [municipality] policy or

custom was the moving force behind” abating the nuisance on plaintiff’s property).

4 McWain alleged that the police officers who went to his property were acting in an official capacity. See

Doc. No. 1 at PageID 4. Like the rest of his allegations, it is unclear whether he is suing these police

officers, as he does not list them in the caption of his complaint as opposing parties. Id. at PageID 1–2, 4.

Nonetheless, the Clay Township Trustees and police officers are individuals, so the suit against Clay

Township as a public entity requires the Court to dismiss any official claim against them as “superfluous.”

Foster v. Michigan, 573 F. App’x 377, 390 (6th Cir. 2014) (quoting Faith Baptist Church v. Waterford

Twp., 522 F. App’x 322, 327 (6th Cir. 2013)); see also Von Herbert v. City of St. Clair Shores, 61 F. App’x

133, 140 n.4 (6th Cir. 2003).

its own ordinance by delivering notice of the final hearing, but it also afforded McWain

constitutionally sufficient notice.5

Assuming, arguendo, that McWain never received the September 24, 2019 notice—which

is not the case—McWain received at least seven notices since 2013 that his property was a

nuisance that Clay Township planned to remediate. Doc. No. 44-1 at PageID 226–28, 230–232,

259. The four notices Clay Township sent McWain from 2013 through 2017 afforded him

constitutionally sufficient notice. Id. at PageID 226–27. McWain was on further notice of his

continuing ordinance violations when he received the July and August 2019 letters. Id. at PageID

226–27, 230–31. Likewise, when Clay Township sent McWain a post-hearing letter (which he

unquestionably received)—telling him that he had seven days before remediation of his property

would begin—he, yet again, had notice. Id. at PageID 259; see also Ming Kuo Yang, 793 F.3d at

603–06 (finding that posted notices, mail notices, and post-hearing notice apprised property

owners of demolition notwithstanding actual notice). Thus, his procedural due process claim fails

as a matter of law. The Court thus turns to this other Fourteenth Amendment claim, substantive

due process.

2. Substantive Due Process Claim

After sending McWain notice, Clay Township lawfully declared that his property—which

was covered with piles of clothing, children’s toys, and other miscellaneous items—was a nuisance

under Ohio Rev. Code § 505.87. Doc. No. 44-1 at PageID 258. Because “there is no due process

5 In addition to McWain’s self-serving affidavit, he files an affidavit from Valerie Hennessey, his counsel’s

administrative assistant. Doc. No. 45-2 at PageID 283. That affidavit does not present a genuine dispute

of material fact fit for trial. It merely states, “the Final Notice of Violation(s) was not delivered to William

McWain by the United States Postal Service.” Id. Considering it is undisputed that Clay Township

delivered this notice to McWain’s address, and Sheley signed for it, Hennessey’s affidavit is irrelevant.

Doc. No. 44-1 at PageID 230; Doc. No. 44-3 at PageID 272. McWain was undisputedly on notice that Clay

Township would hold a hearing to abate the nuisance on his property.

violation when [a] municipality abates a nuisance pursuant to notice,” Crow, 15 F. App’x at 224

(citations omitted), McWain’s substantive due process claim likewise fails as a matter of law.

Clay Township acted lawfully under Ohio law when it removed the items from McWain’s

property. See LePage v. Bd. of Trs. of Thorn Twp., No. 2:03-cv-0062, 2005 WL 3274873, at *3

(S.D. Ohio Dec. 2, 2005) (nuisance abatement under Ohio Rev. Code § 505.87 was not a

substantive due process violation as a matter of law). This was neither “willful [nor] unreasoning,”

nor arbitrary and capricious, since Clay Township lawfully determined that the property on

McWain’s front yard was “garbage, refuse, or other debris.” Pearson, 961 F.2d at 1221 (citation

omitted); see also Kochis v. City of Westland, 409 F. Supp. 3d 598, 609–10 (E.D. Mich. 2019)

(upholding nuisance ordinance as rationally related to legitimate purposes of public welfare).

Compare Doc. No. 44-1 at PageID 258 (showing Clay Township officers and trustees voted to

declare McWain’s property a nuisance), with Howard v. Preble Cnty. Sheriff, No. 3:18-cv-410,

2019 WL 3842446, at *4–5 (S.D. Ohio Aug. 15, 2019), report and recommendation adopted by

No. 3:18-cv-410, 2019 WL 6050967, at *1 (S.D. Ohio Nov. 15, 2019) (due process claims failed

because municipality properly declared property a nuisance under Ohio Rev. Code

§ 505.87).

Likewise, Clay Township did not engage in conscience-shocking behavior. Clay

Township’s disposal of McWain’s property after years of notifying him of the consequences of his

failure to act cannot meet the high threshold for conscience-shocking behavior. See Harris v. City

of Akron, 20 F.3d 1396, 1405 (6th Cir. 1994) (finding no conscience-shocking behavior where city

authorities demolished property under ordinance); Crow, 15 F. App’x at 224; Shelton v. Twin Twp.,

No. 3:12-cv-00390, 2013 WL 1627345, at *7 (S.D. Ohio Apr. 16, 2013) (finding no substantive

due process claim when township abated nuisance under Ohio law). Therefore, his substantive

due process claim also fails as a matter of law.

3. Qualified Immunity

Clay Township argues qualified immunity shields the individual police officers and

trustees from liability if they are sued in their individual capacities. Doc. No. 44 at PageID 223.

McWain does not address this argument. The Court agrees with Clay Township.

“Qualified immunity shields individual government officials from liability ‘insofar as their

conduct does not violate clearly established statutory or constitutional rights of which a reasonable

person would have known.’” Hensley v. Gassman, 693 F.3d 681, 687 (6th Cir. 2012) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). A law is clearly established where it is “clear in

regard to the official’s particular actions in the particular situation.” Id. (citation omitted). “‘The

contours of the right must be sufficiently clear that a reasonable official would understand that

what he [or she] is doing’ violates federal law.” Id. (quoting Anderson v. Creighton, 483 U.S. 635,

640 (1987)). In that regard, “pre-existing law must dictate, that is, truly compel (not just suggest

or allow or raise a question about), the conclusion for every like-situated, reasonable government

agent that what defendant is doing violates federal law in the circumstances.” Saylor v. Bd. of

Educ. of Harlan Cnty., 118 F.3d 507, 515–16 (6th Cir. 1997) (citation omitted) (emphasis omitted).

Even assuming a constitutional violation occurred, in this instance, the Clay Township

Trustees and individual police officers are entitled to qualified immunity. An objectively

reasonable official entering McWain’s property would not understand that doing so and abating

the nuisance, after McWain received notice and Clay Township declared the property a nuisance,

would violate McWain’s constitutional rights. Cf. Livant v. Clifton, 272 F. App’x 113, 116–17

(2d Cir. 2008) (granting qualified immunity to officers in abating nuisance because repeated notice

attempts made it objectively reasonable to conclude plaintiff was apprised of impending

abatement). Moreover, the Clay Township trustees who either voted to enact the ordinance or to

declare McWain’s property a nuisance under Ohio Rev. Code § 505.87 are shielded from § 1983

liability by legislative immunity because these acts “were, in form, quintessentially legislative.”

Bogan v. Scott-Harris, 523 U.S. 44, 55 (1998) (holding that legislators voting for an ordinance

were shielded by legislative immunity). Thus, the Clay Township Trustees and individual police

officers who abated the nuisance are shielded from liability. See, e.g., id.; Ross v. Duggan, 402

F.3d 575, 590 n.7 (6th Cir. 2004).

4. The Clay Township Police Department

McWain’s claim against the Clay Township Police Department is invalid as a matter of

law because Ohio police departments cannot sue or be sued. See Carmichael v. City of Cleveland,

571 F. App’x 426, 435 (6th Cir. 2014); Hughey v. Creston Police Dep’t, No. 5:20-cv-1669, 2020

WL 7262888, at *2 (N.D. Ohio Dec. 10, 2020). Therefore, McWain’s claim must be dismissed.

See Hale v. Vance, 267 F. Supp. 2d 725, 737 (S.D. Ohio 2003).

B. McWain’s Motion for Summary Judgment

Because Clay Township is entitled to judgment as a matter of law on McWain’s claims,

see supra Part IV (A)(1)–(4), his summary judgment motion fails as a matter of law. Doc. No. 45.

C. Clay Township’s Motion in Limine

Because Clay Township is entitled to judgment as a matter of law, it is unnecessary to

consider its pending motion in limine. Doc. No. 54. Therefore, it is denied as moot.

D. McWain’s Claim Against Englewood Towing

McWain also seeks relief against Englewood Towing under § 1983 for negligently

damaging his car. Doc. No. 1 at PageID 2, 4; Doc. No. 45 at PageID 278–79. Englewood Towing

did not move for summary judgment or dismissal. McWain moved for summary judgment against

Englewood Towing, but the Court granted McWain’s motion to withdraw his motion for summary

judgment against Englewood Towing after it filed a memorandum in opposition. Doc. Nos. 45,

49, 50, 51.

Although Englewood Towing failed to move for summary judgment, Fed. R. Civ. P. 56(f)

permits the Court to enter summary judgment for a nonmovant after giving the opposing party

notice and a reasonable time for a response “after identifying . . . material facts that may not be

genuinely in dispute.” Fed. R. Civ. P. 56(f)(3). Even if McWain did not have notice, a sua sponte

summary judgment is appropriate where he will not be “prejudiced by the [Court’s] failure to

provide an opportunity to respond with more evidence,” Smith v. Perkins Bd. of Educ., 708 F.3d

821, 830–31 (6th Cir. 2013) (citations omitted). Prejudice results if “entry of summary judgment

deprived [the losing party] of [his] ability to develop the record or to present legal arguments that

would disturb . . . entitlement to judgment as a matter of law.” Turcar, LLC v. I.R.S., 451 F. App’x

509, 515 (6th Cir. 2011).

McWain only alleges that Englewood Towing was negligent—conduct that is not

actionable under § 1983. See Lewellen v. Metro. Gov’t of Nashville & Davidson Cnty., 34 F.3d

345, 351 (6th Cir. 1994). Though Englewood Towing failed to move—at any stage of the

litigation—for summary judgment based on this clear proposition, the Court is inclined to grant

summary judgment in Englewood Towing’s favor on this basis. Giving McWain more time to

argue that Englewood is liable under § 1983 for negligence “would merely entail an empty

formality[,]” Turcar, LLC, 451 F. App’x at 513 (quoting Excel Energy, Inc. v. Cannelton, 246 F.

App’x 953, 959 (6th Cir. 2007)), because no “reasonable jury could find a [constitutional]

violation” on his claims, Smith v. Erie Cnty. Sheriff’s Dep’t, 603 F. App’x 414, 423 (6th Cir. 2015)

(sua sponte summary judgment was appropriate where, notwithstanding notice, constitutional

claim against police department failed as a matter of law); see also Stansbury v. Hopkins

Hardwoods, Inc., 769 F. App’x 202, 209 (6th Cir. 2019) (“Were we to vacate this judgment and

remand . . . [the defendant] could file its [summary judgment] motion, satisfying the [plaintiff’s]

desired formality, and the district court could grant the same motion”). McWain’s sole claim

against Englewood Towing—negligence under § 1983—is not actionable, regardless of whether

McWain has more time to recapitulate this claim. See, e.g., Lewellen, 34 F.3d at 351. Therefore,

summary judgment in Englewood Towing’s favor is warranted.

V.

The Court thus (1) GRANTS Clay Township’s motion for summary judgment (Doc. No.

44); (2) DENIES McWain’s cross motion for summary judgment (Doc. No. 45); (3) DENIES AS

MOOT Clay Township’s pending motion in limine (Doc. No. 54); (4) GRANTS summary

judgment for Englewood Towing on McWain’s § 1983 claim; and (5) TERMINATES this case

on the docket.6

IT IS SO ORDERED.

Date: March 29, 2022 s/Michael J. Newman

Hon. Michael J. Newman

United States District Judge

6 Pursuant to 28 U.S.C. § 1915(a)(3), the Court hereby CERTIFIES to the United States Court of Appeals

for the Sixth Circuit that an appeal by Plaintiff would be frivolous and not taken in good faith.

Consequently, Plaintiff should not be permitted to proceed in forma pauperis on appeal, and the Court

DENIES Plaintiff a certificate of appealability.