Opinion

Bruce v. City of Miamisburg

Court
District Court, S.D. Ohio
Filed
Jan 13, 2023
Cited by
0 cases
Authority
More cited than 28.3%

The opinion

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

DOUGLAS BRUCE, :

:

Plaintiff, : Case No. 3:21-cv-80

:

v. : Judge Thomas M. Rose

:

CITY OF MIAMISBURG, OHIO, et al., :

:

Defendants. :

______________________________________________________________________________

ENTRY AND ORDER GRANTING DEFENDANT CITY OF MIAMISBURG’S

MOTION FOR SUMMARY JUDGMENT (DOC. NO. 48)

______________________________________________________________________________

Presently before the Court is Defendant City of Miamisburg’s Motion for Summary

Judgment (“Motion”). The City of Miamisburg (“Miamisburg”) seeks summary judgment on

Plaintiff Douglas Bruce’s (“Bruce”) claims of deprivation of property, violation of due process,

and violation of the Eighth and Fourteenth Amendments related to the fining and demolition of his

properties at 609 and 621 Cherry Hill Drive in Miamisburg, Ohio.

The Court GRANTS Defendant’s Motion for Summary Judgment and terminates the case.

I. BACKGROUND

Bruce purchased the properties at 609 and 621 Cherry Hill Drive (the “properties”) at a

public auction in 2013 for approximately $153,000. (Doc. No. 47 at PageID 352.) Bruce has been

a property owner for approximately 46 years and owns 50 properties across the county. (Id. at

PageID 353-54, 382-83, 425.) The properties at issue were initially placed in the name of Helen

Collins (“Collins”). (Doc. No. 47-20.) Collins’ sole role was to forward notices to Bruce. (Doc.

No. 47 at PageID 465.) In June 2016, at Bruce’s request, Collins signed a quitclaim deed turning

the property over to Bruce. (Doc. No. 47-19.)

During the several years he owned the properties, Bruce did not hire a property manager

or contract with any companies to maintain the properties. (Doc. No. 47 at PageID 354-57.)

Neither Bruce or Collins stepped foot on the properties during their ownership and no tenant ever

rented a unit at the properties. (Id. at PageID 352-53, 359, 383-85.) Consequently, over the course

of Bruce and Collins’ ownership, the properties were cited multiple times for failing to mow the

grass or secure trash and debris on the properties. (Doc. No. 48-1 at PageID 856-882, 905-912.)

The properties were ultimately declared a public nuisance and unfit for human occupation. (Id. at

PageID 883-893, 896-904, 913-951.) Along with these notices, Miamisburg issued a number of

invoices for maintenance on the properties. (Doc. No. 48-1 at PageID 953-71.) Between 2013

and 2017, Miamisburg issued the following notices:

• May 2, 2013, Violation Warning Notice for lack of mowing at the Properties (Id.

at PageID 856-59, 864-66);

• June 20, 2013, Violation Notice for lack of mowing at the Properties (Id. at PageID

860-63);

• October 30, 2013, Violation Warning Notice for trash and debris surrounding the

property, including the dumpster and shed at 621 Cherry Hill Drive (Id. at PageID

867-74);

• May 9, 2014, Violation Notice for lack of mowing at the Properties (Id. at PageID

875-82);

• March 30, 2015, Violation Notice declaring the Properties public nuisances (Id. at

PageID 883-893, 896-904);

• October 22, 2015, Violation Notice for improperly secured large trash collection

facilities at the Properties (Id. at PageID 905-12);

• December 6, 2016, Violation Notice declaring the Properties public nuisances (Id.

at PageID 913-47);

• April 25, 2017, Violation Notice for lack of mowing at 609 Cherry Hill Drive (Id.

at PageID 948-51);

• September 1, 2017, notifying Plaintiff that 609 Cherry Hill Drive is unsound for

human occupancy and that a Notice of Demolition will be posted on the structure

(Doc. No. 47-5 and 47-8); and

• September 12, 2017, notifying Plaintiff that the Properties are unsound for human

occupancy and that Notices of Demolition will be posted on the structures (Doc.

No. 47-6 and 47-7; Doc. No. 48-1 at PageID 980-87).

The notices and invoices were sent to a variety of different addresses. Several notices were

sent to an address listed by Collins on the 2013 quitclaim, 632 Lakewood Circle, Colorado Springs,

CO 80910. (Doc. No. 47-20; Doc. No. 48-1 at PageID 856-93, 896-951, 953-71.) Three of the

notices were returned to Miamisburg labeled “RETURN TO SENDER,” while others were signed

for by Collins. (Doc. No. 48-1 at PageID 953-59, 960-65, 966-71, 980-87.) Miamisburg also

mailed two Final Violation Notices, informing Bruce that the properties had been declared a

nuisance and were subject to demolition, to P.O. Box 26018, Colorado Springs, Colorado 80936.

(Doc. No. 47 at PageID 339-42; Doc. Nos. 47-5, 47-8, 47-16.) Bruce has maintained that P.O. box

for 36 years and he listed it on the 2016 quitclaim deed. (Doc. No. 47 at PageID 339-42; Doc. No.

47-19.) Miamisburg also mailed the two Final Notices to Bruce at the Colorado State Penitentiary1

in Canon City, Colorado. (Doc. No. 47-6, 47-7.) Additionally, Miamisburg posted the Final

Notices on the front doors of both properties. (Doc. No. 47-11, 47-13.) Having received no

1 Bruce was incarcerated for a period of time in either 2015 or 2016. (Doc. No. 47 at PageID 349, 364-65.)

response,2 Miamisburg published notices of demolition in relation to the properties in five Miami

Valley newspapers from September 21 to September 28, 2017 and April 19 to April 26, 2018.

(Doc. No. 48-1 at PageID 849-54.) Miamisburg ultimately demolished the properties and mailed

invoices for the demolition costs to Bruce’s P.O. Box on July 20, 2018. (Doc. No. 47-10.)

Bruce filed his Complaint on March 5, 2021. (Doc. No. 1.) Bruce alleges claims of

deprivation of property under the Fifth and Fourteenth Amendments, violation of Procedural Due

process under the Fifth and Fourteenth Amendments, and violation of the Eigth and Fourteenth

Amendments.3 (Doc. No. 1 at PageID 5-9.) All of Bruce’s claims are brought pursuant to 42

U.S.C. § 1983. (Id.) Miamisburg filed the present Motion on November 1, 2022 (Doc. No. 48),

Bruce filed his opposition on December 13, 2022 (Doc. No. 52), and Miamisburg filed its reply

on January 5, 2023 (Doc. No. 54). This matter is fully briefed and ripe for review.

II. LEGAL STANDARDS FOR SUMMARY JUDGMENT

Rule 56 of the Federal Rules of Civil Procedure provides that “[a] party may move for

summary judgment, identifying each claim or defense--or the part of each claim or defense--on

which summary judgment is sought” and that “[t]he court shall grant summary judgment 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). Alternatively, summary judgment is denied

“[i]f there are ‘any genuine factual issues that properly can be resolved only by a finder of fact

because they may reasonably be resolved in favor of either party.’” Hancock v. Dodson, 958 F.2d

1367, 1374 (6th Cir. 1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)).

2 Bruce also maintained an email address at Taxcutter@msn.com, which Miamisburg used in 2013 and 2015 to

communicate with Bruce about the condition of the properties. (Doc. No. 47 at PageID 507; Doc. No. 48-1 at PageID

973, 975, 977-78.)

3 A claim for violation of Substantive Due Process was dismissed on November 3, 2021. (Doc. No. 28.)

The party seeking summary judgment has the initial burden of informing the court of the

basis for its motion and identifying those portions of the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, that it believes demonstrate

the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);

see also Fed. R. Civ. P. 56(a), (c). In opposing summary judgment, the nonmoving party cannot

rest on its pleadings or merely reassert its previous allegations. Anderson, 477 U.S. at 248-49. It

also is not sufficient to “simply show that there is some metaphysical doubt as to the material

facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The

nonmoving party must “go beyond the [unverified] pleadings” and present some type of

evidentiary material in support of its position. Celotex Corp., 477 U.S. at 324.

A party’s failure “to properly address another party’s assertion of fact as required by Rule

56(c)” can result in the court “consider[ing] the fact undisputed for purposes of the motion.” Fed.

R. Civ. P. 56(e). Additionally, “[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.”

InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989). “The court need consider only

the cited materials, but it may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3).

In ruling on a motion for summary judgment, it is not the judge’s function to make

credibility determinations, “weigh the evidence[,] and determine the truth of the matter, but to

determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249, 255. In

determining whether a genuine issue of material fact exists, the court must assume as true the

evidence of the nonmoving party and draw all reasonable inferences in that party’s favor. Id. at

255; Matsushita, 475 U.S. at 587; Tolan v. Cotton, 572 U.S. 650, 660 (2014). However, the “mere

existence of a scintilla of evidence in support of the” nonmoving party is not sufficient to avoid

summary judgment. Anderson, 477 U.S. at 252. “There must be evidence on which the jury could

reasonably find for the plaintiff.” Id. The inquiry, then, is “whether reasonable jurors could find

by a preponderance of the evidence that the” nonmoving party is entitled to a verdict. Id.

III. ANALYSIS

Miamisburg makes four arguments in favor of summary judgment in its Motion. First,

Miamisburg argues that the statute of limitations has expired because Bruce should have been on

notice of the demolition that occured nearly three years prior to the initiation of this action. (Doc.

No. 48 at PageID 830-33.) Second, Miamisburg argues that a Fifth Amendment taking did not

occur because the city was abating a public nuisance. (Id. at PageID 833-36.) Third, Miamisburg

argues that it provided Bruce due process because it provided notice and the opportunity for a

hearing. (Id. at PageID 836-40.) Finally, Miamisburg argues the fines and fees assessed to Bruce

were not excessive and do not fall within the meaning of the Eight Amendment. (Id. at PageID

840-42.) As the statute of limitations is dispositive of the entire action, the Court finds it

unnecessary to rule on Miamisburg’s remaining arguments.

A. Statute of Limitations

“Section 1983 does not provide a statute of limitations, so we must borrow one from the

most analogous state cause of action.” 3799 Mill Run Partners, LLC v. City of Hilliard, Ohio, 839

F. App’x 948, 950 (6th Cir. 2020). Consequently, the Supreme Court has explained that the statute

of limitations for a Section 1983 action is borrowed from the limitations period for personal injury

actions provided by the state in which the action arises. Wilson v. Garcia, 471 U.S. 261, 275-76,

105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), partially superseded by statute as stated in Jones v. R.R.

Donnelley & Sons Co., 541 U.S. 369, 377-380, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004). The

Supreme Court later clarified that where a state has multiple statutes of limitations for different

categories of personal injury, the residual personal injury statute of limitations applies. Owens v.

Okure, 488 U.S. 235, 249-50, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989). The Sixth Circuit has held

that the limitations period for § 1983 actions arising in Ohio is the two-year period found in Ohio

Revised Code § 2305.10. Browning v. Pendleton, 869 F.2d 989, 991-92 (6th Cir. 1989). The

parties agree that the two-year statute of limitations applies in this case.

The inquiry then becomes when the statute of limitations began to run on Bruce’s claims.

The Sixth Circuit has repeatedly held, “‘[t]he statute of limitations commences to run when the

plaintiff knows or has reason to know of the injury which is the basis of his action. A plaintiff has

reason to know of his injury when he should have discovered it through the exercise of reasonable

diligence.’” Hughes v. Vanderbilt Univ., 215 F.3d 543, 548 (6th Cir. 2000) (quoting Sevier v.

Turner, 742 F.2d 262, 273 (6th Cir. 1984)). The test to determine whether a plaintiff has reason

to know of an injury “is an objective one, and the Court determines ‘what event should have alerted

the typical lay person to protect his or her rights.’” Sharpe v. Cureton, 319 F.3d 259, 266 (6th Cir.

2003) (quoting Dixon v. Anderson, 928 F.2d 212, 215 (6th Cir. 1991)).

Miamisburg argues that the relevant inquiry is whether the notices it sent to Bruce were

“reasonably calculated” to apprise Bruce of the pending demolitions. (Doc. No. 48 at PageID 832-

33.) Miamisburg also argues that latest the action could have accrued would have been July 20,

2018, when it sent Bruce the invoices for the demolitions of the properties. (Id. at PageID 833.)

In opposition, Bruce argues the statute of limitations had not run because he filed this action shortly

after learning the buildings had been demolished. (Doc. No. 52 at PageID 1005.) Bruce argues

that the notices sent by Miamisburg were insufficient because he never received them. (Id. at

PageID 1006.) Moreover, Bruce argues that posting notices on the properties themselves was

inadequate because he never visited the buildings. (Id.) Finally, Bruce argues that posting notices

in Miami Valley newspapers was inadequate because he lives 800 miles away and did not have

the opportunity to see the notices. (Id.)

Jacks v. City of Youngstown offers a useful comparator to the current controversy. No.

4:19-CV-2689, 2021 U.S. Dist. LEXIS 143358, 2021 WL 3288572 (N.D. Ohio Aug. 2, 2021). In

Jacks, the plaintiff’s property was demolished in January 2016 and the parties agreed that he was

aware that property had been demolished by November 2017. Id. at 7. The plaintiff then filed his

complaint in November 2019. Id. In evaluating whether the statute of limitations had run on the

plaintiff’s claim, the court found “[i]t is not reasonable for [the plaintiff], a real estate professional

with 45 years of experience, to fail to visit his property or send an agent to visit his property for

almost two years.” Id.

Bruce filed his complaint on March 5, 2021, meaning his claim is barred unless he did not

know or did not have reason to know of his injury before March 5, 2019. Similar to the plaintiff

in Jacks, Bruce has 46 years of experience in property ownership and owns 50 properties across

the county. (Doc. No. 47 at PageID 353-54, 382-83, 425.) The Final Violation Notices were

posted on the properties by at least May 30, 2018. (Doc. No. 47-11; Doc. No. 47-13.) The

properties themselves were demolished at some point prior to July 20, 2018, when Miamisburg

sent the invoices for the demolitions (Doc. No. 47-10), because Miamisburg would send those

invoices to Bruce after they had received them from the contractor who did the work. (Doc. No.

45 at PageID 288-89, 293-99.)

For an individual with 46 years of experience in property ownership and who currently

owns 50 properties across the country, it is not reasonable for Bruce to have gone at least eight

months without realizing two of his building were no longer in existence. Indeed, a call asking

virtually anyone to drive by the properties would have confirmed this. Moreover, Bruce states that

he filed this action shortly after learning of the properties’ demolition, which means nearly three

years elapsed between the demolition of the properties and when Bruce realized they had been

demolished. Bruce also reasonably should have discovered the threat of demolition upon his

properties even sooner by having an agent simply visit the properties, at which point they would

have seen the Final Violation Notices posted on the front doors.

The Court is not inclined to accept Bruce’s argument that he never visited the property as

a worthwhile rejoinder to why he was unaware the properties had been demolished. Indeed,

Bruce’s argument that he was 800 miles away is equally unavailing. If the Court followed Bruce’s

suggestions, any far-off and difficult to locate landlord could let their property fall into complete

ruin and then sue the city that demolished the blight for a significant sum by simply ignoring their

property entirely. This would leave local governments powerless to protect the health and safety

of its communities from derelict and dangerous structures. The Court is not willing to endorse

such a complete abdication of responsibility by property owners.

A reasonably diligent person in Bruce’s position should certainly have learned that their

property had been demolished in the eight or more months between the demolition of the property

and the last day Bruce could have discovered his injury under the statute of limitations. The Court

finds that Bruce’s Complaint was filed outside the statute of limitations.

IV. CONCLUSION

For the reasons stated above, the Court GRANTS Defendant City of Miamisburg’s Motion

for Summary Judgment (Doc. No. 48).

DONE and ORDERED in Dayton, Ohio, this Friday, January 13, 2023.

s/Thomas M. Rose

________________________________

THOMAS M. ROSE

UNITED STATES DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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