Simpson v. Shelby County Tennessee Office of Construction Code Enforcement

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

)

MICHAEL WESLEY SIMPSON, )

)

Plaintiff, )

)

v. ) No. 19-cv-2625-TMP

)

SHELBY COUNTY, TENNESSEE )

OFFICE OF CONSTRUCTION )

CODE ENFORCEMENT, and )

FELICIA CAMPBELL, )

)

Defendants. )

)

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND

DENYING PLAINTIFF’S MOTION TO AMEND

Before the court are defendants Shelby County, Tennessee,

Office of Construction Code Enforcement and Felicia Campbell’s

Motion to Dismiss or in the Alternative for Summary Judgment, filed

on October 30, 2020, and pro se plaintiff Michael Wesley Simpson’s

Motion for Leave to Amend and Supplement Complaint, filed October

26, 2020.1 (ECF Nos. 28-29.) Simpson filed a response to the

defendants’ motion on December 1, 2020. (ECF No. 31.) Defendants

filed a response to Simpson’s motion on November 3, 2020, as well

1On February 21, 2020, the parties consented to have a United

States magistrate judge conduct all proceedings in this case

including trial, the entry of final judgment, and all post-trial

proceedings. (ECF No. 17.)

as a reply in support of their motion on December 15, 2020. (ECF

Nos. 30, 32.)

I. BACKGROUND

Pro se plaintiff Michael Wesley Simpson’s hobby is to collect

and refurbish old military vehicles. (ECF No. 29-5 at 12.)

Simpson’s complaint is centered around two alleged constitutional

violations that bookend a legal battle over whether his hobby is

in violation of local zoning ordinances. (ECF No. 1 at 4.)

Defendant Felicia Campbell, a Sign & Zoning Senior Inspector for

defendant Shelby County, Tennessee, Office of Construction Code

Enforcement (“Code Enforcement”), first visited Simpson’s property

on November 11, 2016. (ECF No. 29-3 at 2, 4.) On inspection of the

property, Campbell observed what she described as “a heavy

military-style truck, a heavy trailer, and a large, heavy, metal

box” parked in his yard and driveway. (ECF No. 29-3 at 4.) Because

storing heavy trucks and trailers is a violation of Shelby County

municipal ordinances, Campbell warned Simpson that he needed to

remove the vehicles or else risk a civil citation.2 (ECF No. 29-3

at 4.)

2See Memphis and Shelby County Unified Development Code (“UDC”) §

2.7.10(B) (“The parking of trucks, heavy equipment or tractor

trailers shall not be allowed on any lot or on any street segment

wholly or partially located within a residential or open zoning

district.”).

A little over a week later, Campbell returned to the property

and saw that Simpson had not taken any steps towards complying

with the ordinance. (ECF No. 29-3 at 4-5.) When the vehicles were

still on his property on November 30, 2016, Campbell issued him a

citation. (ECF No. 29-3 at 5.) Because he was not home at the time,

Campbell followed standard Code Enforcement procedure and taped

the citation to his front door. (ECF No. 29-3 at 5.) Later, on

December 5, 2016, Campbell, accompanied by two other code

enforcement employees, again returned to the property, this time

to take photographs of the vehicles on his property. (ECF No. 1 at

4.) In order to take the photographs, Campbell walked down the

driveway towards the back of the house. (ECF No. 29-5 at 17-18.)

Simpson knew that Campbell and others were present on his property

because he heard voices coming from the driveway side of his house,

though they never entered his backyard. (ECF No. 29-5 at 18.) It

is this occasion that Simpson asserts was a violation of his Fourth

Amendment rights, as Campbell did not have his consent to enter

the property or a warrant to search the premises. (ECF No. 1 at

4.)

Campbell would visit the property to inspect for compliance

and take pictures on several more occasions in 2017 and 2019,

though Simpson’s complaint focuses on the December 2016 incident.

(ECF No. 29-3 at 5-6.) On each visit, Campbell stood on Simpson’s

driveway or his porch, except for one occasion where she stood on

a strip of gravel immediately adjacent to the driveway to conduct

her investigation. (ECF No. 29-3 at 7.) The only time that she

physically touched the house was when she knocked on the door to

no avail and resorted to taping the citation to his door. (ECF No.

29-3 at 7.)

After receiving the citation, Simpson appeared before the

Shelby County Environmental Court in early 2017. (ECF No. 29-3 at

6.) On February 13, 2017, the Environmental Court found that he

had violated the zoning ordinance and ordered him to remove the

vehicles from his property no later than April 1, 2017. (ECF No.

25-1 at 7.) Simpson appealed the order to the Shelby County Circuit

Court. (ECF No. 29-4 at 2.) On January 6, 2019, Campbell again

entered Simpson’s property to conduct an inspection. (ECF No. 29-

3 at 6.) On that occasion, Campbell was accompanied by two other

code enforcement inspectors. (ECF No. 29-3 at 6.) The officers

observed that Simpson still had the vehicles on his property and

that it appeared as if he had begun doing commercial repairs, which

is itself a separate violation of the UDC. (ECF No. 29-3 at 6.)

Though Campbell and the other inspectors took pictures while

standing in the driveway and the adjacent gravel strip, the trucks

could be seen from the main road. (ECF Nos. 29-3 at 12; 29-5 at

19-20.) Campbell issued Simpson a second citation, this time for

“[f]ailure to comply with court orders. Improper outdoor storage

of military trucks and heavy equipment. [And a]uto repairs in RS-

Zone.” (ECF No. 29-3, at 11.) Because litigation for the first

court order was ongoing and being handled by the Circuit Court,

the Environmental Court dismissed the second citation for lack of

jurisdiction.3 (ECF No. 29-3 at 6.) According to Simpson, Campbell

issued this second citation in an attempt to harass him in

violation of his due process rights. (ECF No. 1 at 4.)

Regarding the first citation, on October 8, 2019, the Circuit

Court entered an Order of Judgment for Memphis/Shelby County,

Assessing Fine and Costs and Requiring Removal of Heavy Trucks,

Trailers and Equipment from 7198 Polder Drive. (ECF No. 29-4 at

2.) On November 7, 2019, Simpson filed a notice of appeal to the

Tennessee Court of Appeals. (ECF No. 29-4 at 3.) His appeal is

still pending before the Court of Appeals. Tennessee v. Michael

Simpson, W2019-01981-COA-R3-CV (Tenn. Ct. App. filed Nov. 7,

2019).

II. ANALYSIS

A. Standard of Review

As a preliminary matter, the undersigned will construe the

defendants’ motion as one for summary judgment. Under Federal Rule

of Civil Procedure 12(d), if a party presents matters outside of

the pleadings, “the motion must be treated as one for summary

3It is unclear from the record on what date the Environmental Court

dismissed the second citation, but Simpson’s complaint states that

it was about six months after the citation was issued. (ECF No. 1

at 4.)

judgment under Rule 56.” Before doing so, the Rule requires that

all parties be given a reasonable opportunity to present materials

that are germane to the motion as it is construed. See Wysocki v.

Int’l Bus. Mach. Corp., 607 F.3d 1102, 1105 (6th Cir. 2010)

(holding that it was proper for the district court to convert a

motion to dismiss to a motion for summary judgment where the

initial motion noted that it contained materials outside the

pleadings and the plaintiff’s response “clearly indicated that

[plaintiff] understood that the court might grant summary

judgment”). Here, the defendants styled their motion as a motion

to dismiss or, in the alternative, as a motion for summary

judgment. Attached to the motion were affidavits and exhibits that

were not a part of the pleadings. In Simpson’s response, he also

included exhibits that were not contained in the pleadings and

noted that it was a response to a motion for summary judgment. As

such, the court finds that both parties have had a reasonable

opportunity to present materials in support and in defense of this

motion. Thus, the court will consider the arguments contained in

the defendants’ motion under the summary judgment standard.

Federal Rule of Civil Procedure 56(a) provides that “the 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.” When assessing whether to grant

summary judgment, a judge “may not ‘make credibility

determinations or weigh the evidence,’ because those are ‘jury

functions.’” Jordan v. Kohl's Dep't Stores, Inc., 490 F. App'x

738, 741 (6th Cir. 2012) (citation omitted) (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). Instead, the judge

must determine “whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.” Block

v. Meharry Med. Coll., 723 F. App’x 273, 277 (6th Cir. 2018)

(quoting Anderson, 477 U.S. at 251-52). “In resolving a summary

judgment motion, th[e] court must view the evidence in the light

most favorable to [the nonmovant].” Huckaby v. Priest, 636 F.3d

211, 216 (6th Cir. 2011) (citing Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

B. Section 1983 Claims

Simpson’s claims against both defendants are couched in terms

of 42 U.S.C. § 1983. Section 1983 allows actions against any person

who, acting under color of state law, subjects “any citizen of the

United States or other person within the jurisdiction thereof to

the deprivation of any rights[ or] privileges . . . secured by the

Constitution and laws” of the United States. 42 U.S.C. § 1983. It

does not create substantive rights but instead “provides remedies

for deprivations of rights established elsewhere.” Flint v. Ky.

Dep't of Corr., 270 F.3d 340, 351 (6th Cir. 2001) (citing Okla.

City v. Tuttle, 471 U.S. 808 (1985)). There are two elements to a

claim under § 1983: “(1) the deprivation of a right secured by the

Constitution or laws of the United States and (2) the deprivation

was caused by a person acting under color of state law.” Conexx

Staffing Servs. v. PrideStaff, No. 2:17-cv-02350-SHM-cgc, 2017 WL

9477760, at *2 (W.D. Tenn. Nov. 3, 2017) (citing Tahfs v. Proctor,

316 F.3d 584, 590 (6th Cir. 2003)).

1. Statute of Limitations

Simpson’s Fourth Amendment claims related to the December 5,

2016, incident are barred by the statute of limitations. “The

statute of limitations applicable to a § 1983 action is the state

statute of limitations applicable to personal injury actions under

the law of the state in which the § 1983 claim arises.” Howell v.

Farris, 655 F. App'x 349, 351 (6th Cir. 2016) (internal citations

and quotations omitted). In Tennessee, the applicable statute of

limitations runs for one year. T.C.A. § 28-3-104(a). “Although the

applicable time period is borrowed from state law, the date on

which the statute of limitations begins to run . . . is a question

of federal law.” Howell, 655 F. App'x at 351. “Ordinarily, the

limitation period starts to run when the plaintiff knows or has

reason to know of the injury which is the basis of his action.”

Id.

Simpson’s complaint alleges that, on December 5, 2016,

defendants violated his Fourth Amendment rights when Campbell

entered his curtilage to take photographs of his personal property.

(ECF No. 1 at 4.) Simpson testified at his deposition that he was

at his house on December 5, 2016, when Campbell and others arrived

to take photographs and that he heard and saw them standing on his

driveway. (ECF No. 29-5 at 17-18.) As such, Simpson had one year

from that date to raise any corresponding § 1983 claims. See

Howell, 655 F. App'x at 351. Simpson did not file this complaint

until September 17, 2019. Thus, Simpson is time-barred from

pursuing his § 1983 claims against Campbell and Code Enforcement

that stem from Campbell’s entry onto his property on December 5,

2016.

2. Fourth Amendment Claim Against Campbell

Even if the court were to consider the merits of Simpson’s

Fourth Amendment claim from 2016, the court would still find that

it fails. Simpson argues that Campbell violated his Fourth

Amendment rights by entering his property to take photographs. The

Fourth Amendment provides, “[t]he right of the people to be secure

in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated . . . .”

U.S. Const. amend. IV. It is well-settled that a “naked-eye”

observation of a home’s exterior from a public street or from an

open field is not a Fourth Amendment search. Widgren v. Maple Grove

Twp., 429 F.3d 575, 581 (6th Cir. 2005). The Fourth Amendment,

however, may be implicated when a defendant enters onto the

curtilage of the home. Id. at 582. In determining whether a search

violates the Fourth Amendment, the court must consider both the

methods used – such as if the defendant observed what could have

been seen by a passerby or if the defendant resorted to either

“[e]xtraordinary measures” or “dirty business” – as well as the

purpose of the investigation. Id. at 583 (quoting Olmstead v.

United States, 277 U.S. 438, 470 (1928) (Holmes, J., dissenting);

citing James v. United States, 418 F.2d 1150, 1151 n.1 (D.C. Cir.

1969) and Wayne R. LaFave, 1 Search and Seizure: A Treatise on the

Fourth Amendment § 2.3(g) (4th ed. 2004)). “A criminal

investigation is generally more intrusive than an administrative

or regulatory investigation.” Id. As such, the Sixth Circuit has

held that a city employee “does not conduct a Fourth Amendment

search by entering the curtilage for the [] purpose of naked-eye

observations of the house's plainly visible exterior attributes .

. . all without touching, entering or looking into the house”

during an “administrative inspection.” Id. at 585-86.

Simpson’s Fourth Amendment allegation against Campbell is

that she walked down his driveway “to take photographs of personal

property items located on my property at the rear of my driveway.”

(ECF No. 1 at 4.) He argues that the machinery he stores in his

backyard and driveway is protected by the Fourth Amendment because

it is on his private property and Campbell must have had to enter

his private property to conduct the inspection. Even assuming that

Campbell entered the curtilage of his home, this is insufficient

to support a claim that Campbell violated his Fourth Amendment

rights. See, e.g., Widgren, 429 F.3d at 585 (holding that a tax

appraiser did not violate the Fourth Amendment despite entering

the curtilage of the plaintiff’s home where he “did not touch,

enter, or look into the house [nor] did he stray beyond areas

reasonably necessary to aid his inspection.”); Field v. City of

Hartford, No. 3:18-cv-01803 (JAM), 2019 WL 4279011, at *8 (D. Conn.

Sept. 9, 2019) (holding that there was no Fourth Amendment

violation where a police officer trespassed onto the plaintiff’s

property and posted a zoning citation on the plaintiff’s front

door); Conrad v. City of Berea, 243 F. Supp. 3d 896, 905-07 (N.D.

Ohio 2017) (holding that a building inspector did not commit a

Fourth Amendment violation where he trespassed onto property to

take pictures during “an administrative assessment”). In her

affidavit, Campbell stated that she remained on the driveway,

sidewalk, and porch during every visit to his house (except for

one occasion in January 2019 where she stood immediately adjacent

to the driveway) and that she only touched the house to knock on

the door and post the citation. (ECF No. 29-3 at 7.) Simpson even

admits as much in his deposition, where he testified that he saw

code enforcement inspectors taking pictures from his driveway and

from the gravel section adjacent to the driveway, but never in his

backyard. (ECF No. 29-5 at 17-18.) He testified further that his

primary contention for a Fourth Amendment violation is that the

defendants entered onto the curtilage of his home by standing on

and around his driveway. (ECF No. 29-5 at 22.) This does not amount

to a Fourth Amendment violation.

3. Fourteenth Amendment Claims Against Campbell

Additionally, Simpson argues that his due process rights were

violated when Campbell issued him a citation for failing to comply

with court orders while his earlier citation was still pending on

appeal.4 The Fourteenth Amendment provides that no “State [shall]

deprive any person of life, liberty, or property, without due

process of law.” U.S. Const. amend. XIV. There are two forms of

due process rights: procedural and substantive. Midkiff v. Adams

Cty. Reg'l. Water Dist., 409 F.3d 758, 762 (6th Cir. 2005).

“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)

4In his response to the motion for summary judgment, Simpson refers

to his due process rights as being under the Fifth Amendment.

Because the Fifth Amendment applies to the federal government and

the Fourteenth Amendment applies to state governments, the court

will construe his claims as being brought under the Fourteenth

Amendment. See Dusenberry v. United States, 534 U.S. 161, 167

(2002) (“The Due Process Clause of the Fifth Amendment prohibits

the United States, as the Due Process Clause of the Fourteenth

Amendment prohibits the States, from depriving any person of

property without ‘due process of law.’”).

(quoting Collins v. City of Harker Heights, 503 U.S. 115, 125

(1992) (internal quotation marks omitted)).

A procedural due process claim involves a two-part analysis:

“First, the court must determine whether the interest at stake is

a protected liberty or property right under the Fourteenth

Amendment. Only after identifying such a right do we continue to

consider whether the deprivation of that interest contravened

notions of due process.” Midkiff, 409 F.3d at 762–63; see also

Thomas v. Cohen, 304 F.3d 563, 576 (6th Cir. 2002). “Substantive

due process claims, in comparison, serve[] as a vehicle to limit

various aspects of potentially oppressive government action.”

Handy–Clay v. City of Memphis, 695 F.3d 531, 546–47 (6th Cir. 2012)

(quoting Howard v. Grinage, 82 F.3d 1343, 1349 (6th Cir. 1996)

(internal quotation marks omitted)). “They often fall into one of

two categories — claims that an individual has been deprived of a

particular constitutional guarantee, or claims that the government

has acted in a way that ‘shock[s] the conscience.’” Id. at 547

(quoting Valot v. Se. Local Sch. Dist. Bd. of Educ., 107 F.3d 1220,

1228 (6th Cir. 1997) (citations omitted)). “The conscience-

shocking limit on substantive due process claims serves to keep

the doctrine from expanding to cover administrative incompetence

or irresponsibility.” Brown v. Detroit Pub. Sch. Cmty. Dist., 763

F. App'x. 497, 504 (6th Cir. 2019) (citing Cty. of Sacramento v.

Lewis, 523 U.S. 833, 848 (1998)). “Where government action does

not deprive a plaintiff of a particular constitutional guarantee

or shock the conscience, that action survives the scythe of

substantive due process so long as it is rationally related to a

legitimate state interest.” Id. (quoting Valot, 107 F.3d at 1228

(internal quotation marks omitted)).

Here, viewing the evidence in the light most favorable to

Simpson, the facts do not establish that Campbell violated either

Simpson’s procedural or substantive due process rights. Regarding

substantive due process, Campbell did not deprive Simpson of any

constitutional guarantee or engage in any conduct that would even

come close to shocking the conscience. See Handy–Clay, 695 F.3d at

546–47 (stating that “‘only the most egregious official conduct,’

conduct that is ‘so brutal and offensive that it [does] not comport

with traditional ideas of fair play and decency’” should be

construed as shocking the conscience) (quoting Lewis, 523 U.S. at

846-47 and Breithaupt v. Abram, 352 U.S. 432, 435 (1957)). Campbell

merely posted a citation on Simpson’s door for failing to comply

with the Environmental Court’s order to remove all of the military

vehicles from his property and for continuing to violate local

zoning ordinances. The citation was ultimately dismissed for lack

of jurisdiction because of the ongoing litigation for the first

citation. That he was required to reappear in court and defend

against the second citation does not establish a substantive due

process violation. See DePoutot v. Raffaelly, 424 F.3d 112, 119

(6th Cir. 2005) (“Mere violations of state law, even violations

resulting from bad faith, do not necessarily amount to

unconstitutional deprivations of substantive due process.”).

Moreover, it was reasonable for Campbell to believe that she was

justified in issuing him a second citation for continuing to have

military vehicles on his property. (ECF No. 29-3 at 11); see

Memphis and Shelby County UDC § 11.1 (“Each day’s continuance of

a violation shall be considered a separate offense.”). Further, as

defendants point out, maintaining community aesthetics and

enforcing zoning ordinances is a legitimate government interest.

Conrad, 243 F. Supp. 3d at 903 (citing Franchise Developers, Inc.

v. City of Cincinnati, 505 N.E.2d 966, 967 (1987)).

Regarding procedural due process, “a § 1983 plaintiff may

prevail on a procedural due process claim by either (1)

demonstrating that he is deprived of property as a result of

established state procedure that itself violates due process

rights; or (2) by proving that the defendants deprived him of

property pursuant to a ‘random and unauthorized act’ and that

available state remedies would not adequately compensate for the

loss.” Macene v. MJW, Inc., 951 F.2d 700, 706 (6th Cir. 1991). To

do so, a plaintiff must prove that “(1) she has a property interest

protected by the Due Process Clause; (2) she was deprived of this

property interest; and (3) the state did not afford her adequate

pre-deprivation procedural rights.” Muhammad v. Azar, No. 18-cv-

2857-MSN-tmp, 2019 WL 4228915, at *7 (W.D. Tenn. Aug. 19, 2019)

(citing Chandler v. Vill. of Chagrin Falls, 296 F. App'x 463, 469

(6th Cir. 2008)).

Based on the record before the court, Simpson’s procedural

due process claim fails because he was given an adequate

opportunity to defend against the second citation and because his

right to appeal the first citation was not abridged. See id.

Simpson’s complaint alleges that his due process rights were

violated because the second citation interfered with his right to

appeal the first citation and amounted to harassment. (ECF No. 1

at 4.) In his reply to the motion for summary judgment motion, he

argues that his due process rights were violated because the

citation “sen[t] the matter before a court that had no jurisdiction

over the matter, . . . in turn cost[ing] the plaintiff time, legal

fees, and emotional stress that took place for over six months

before the General Sessions District 14 Court dismissed the

citation that Ms. Campbell had written in January 2019[,] reverting

. . . the appeal [that] was pending before the Shelby County

Circuit Court.” (ECF No. 31 at 8.) However, Simpson was not

deprived of his right to appeal the first citation, as court

records show that he appealed the first citation to the Tennessee

Court of Appeals on November 7, 2019 – several months after the

first citation was dismissed and two months after filing this

lawsuit.5 See Tennessee v. Michael Simpson, W2019-01981-COA-R3-CV

(Tenn. Ct. App. filed Nov. 7, 2019). Further, Simpson successfully

defended against the second citation, ultimately resulting in its

dismissal.6 It is axiomatic that “‘the root requirement’ of the

Due Process Clause [is] ‘that an individual be given an opportunity

for a hearing before he is deprived of any significant property

interest.’” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,

542 (1985) (emphasis in original) (quoting Boddie v. Connecticut,

401 U.S. 371, 379 (1971)). For both citations, Simpson was afforded

a constitutionally sufficient hearing process and, as a result,

his procedural due process challenge fails as a matter of law.7

5Moreover, it has been deemed admitted by this court that “on or

about November 7, 2019, [Simpson] appealed the Shelby County

Circuit Court judgment against [him] to the Tennessee Court of

Appeals.” (ECF Nos. 25-1 at 2; 26.)

6While defendants state only that the Environmental Court dismissed

the citation for lack of jurisdiction, Simpson’s complaint states

that he had “to appear before a court that had no jurisdiction

over the matter for 6 months.” (ECF No. 1 at 5.)

7Additionally, the defendants assert that Campbell is protected by

qualified immunity. “The doctrine of qualified immunity protects

government officials ‘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.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citing

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In analyzing

qualified immunity, a court must answer two questions: (1) whether

a constitutional violation occurred, and (2) whether the contours

of the constitutional right is sufficiently established that the

government official would have understood that they were violating

the right. Askew v. City of Memphis, No. 14-cv-02080-STA-tmp, 2016

WL 3461549, at *12 (W.D. Tenn. June 21, 2016). Because the court

4. Claims Against Code Enforcement

Simpson also named the Shelby County, Tennessee, Office of

Construction Code Enforcement – a division of the Memphis and

Shelby County Office of Planning and Development – as a defendant

in this case.8 “A municipality cannot be held liable under § 1983

on a respondeat superior basis.” Mhoon v. Metro. Gov't of Nashville

& Davidson Cty., No. 3:16–cv–01751, 2016 WL 6250379, at *6 (M.D.

Tenn. Oct. 26, 2016) (citing Thomas v. City of Chattanooga, 398

F.3d 426, 432–33 (6th Cir. 2005)). Instead, municipal liability

under § 1983 arises “‘when execution of a government's policy or

custom . . . inflicts the injury’ of a constitutional violation.”

David v. City of Bellevue, 706 F. App'x 847, 850 (6th Cir. 2017)

(quoting Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978)).

“Official municipal policy includes the decisions of a

government's lawmakers, the acts of its policymaking officials,

and practices so persistent and widespread as to practically have

the force of law.” Id. (quoting Connick v. Thompson, 563 U.S. 51,

61 (2011)). A plaintiff can establish such a “policy or custom” by

has found that no constitutional violation occurred, it follows

that Simpson would not be able to overcome qualified immunity.

8The defendants argue that the real party in interest is Shelby

County because the Office of Construction Code Enforcement is not

a stand-alone entity capable of being sued. Because the outcome is

the same regardless of whether Shelby County or Code Enforcement

is the real party in interest, the court need not address whether

to amend the pleadings to reflect that Shelby County should be the

actual defendant.

demonstrating “(1) the existence of an illegal official policy or

legislative enactment; (2) that an official with final decision

making authority ratified illegal actions; (3) the existence of a

policy of inadequate training or supervision; or (4) the existence

of a custom of tolerance or acquiescence of federal rights

violations.” Osberry v. Slusher, 750 F. App'x 385, 397 (6th Cir.

2018) (quoting Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir.

2013)).

Even construing all facts in the light most favorable to

Simpson, the record does not support a finding that Simpson was

harmed by a government “policy or custom.” Not only does Simpson

not point to a municipal policy or custom in any of his filings,

but he also argues in his response that Code Enforcement is liable

because Campbell was “acting under the official duty of the county

[when she] conducted an illegal administrative search on 7198

Polder Drive” and that Campbell was acting “as a code enforcement

officer” when she issued the second citation.9 (ECF No. 31 at 4-

7, 9.); see Mhoon, 2016 WL 6250379, at *6 (“[A] municipal entity

. . . ‘may only be sued under § 1983 for unconstitutional or

illegal municipal policies, and not for unconstitutional conduct

of [its] employees.’”) (quoting Ctr. for Bio–Ethical Reform, Inc.

9Additionally, to the extent that his claims against Code

Enforcement are based on the December 5, 2016, incident, the court

has already found that they are barred by the relevant statute of

limitations.

v. City of Springboro, 477 F.3d 807, 819 (6th Cir. 2007)). Because

Simpson has not presented any evidence of a custom or policy that

caused his harm, Simpson’s § 1983 claims against Shelby County

must fail as a matter of law.

C. Motion to Amend

Simpson filed a motion to amend his complaint to include

allegations that code enforcement inspectors entered onto his

property to take photographs without his consent and without a

warrant on January 30, 2017, January 8, 2019, July 17, 2019, and

July 19, 2019. (ECF No. 28 at 2-3.) Federal Rule of Civil Procedure

15(a)(2) directs courts to freely grant a party leave to amend its

pleading “when justice so requires.” A court may deny the motion

to amend if such an amendment would be futile. Beydoun v. Sessions,

871 F.3d 459, 469 (6th Cir. 2017) (quoting Riverview Health Inst.

LLC v. Med. Mut. of Ohio, 601 F.3d 505, 520 (6th Cir. 2010)). “A

proposed amendment is futile if the amendment could not withstand

a Rule 12(b)(6) motion to dismiss.” Id. (quoting Riverview Health,

601 F.3d at 520). The court has already found that the defendants

did not violate Simpson’s Fourth Amendment rights by entering his

property to take photographs on December 5, 2016. This analysis

would apply equally to Simpson’s allegations in the proposed

amended complaint that Campbell “entered onto the curtilage of the

home with the intent to take photographs of the plaintiff’s

personal property located at the plaintiff’s residence without

consent and without presentation of a warrant” on January 30, 2017,

January 8, 2019, July 17, 2019, and July 19, 2019.10 (ECF No. 28

at 2-3.) Additionally, Simpson’s allegation in the proposed

amended complaint that Campbell entered onto his property to take

photographs on January 17, 2017, would be barred by the statute of

limitations. See Howell, 655 F. App'x at 351. Thus, amending the

complaint to assert that defendants entered onto his property to

take photographs once more in 2017 and on three occasions in 2019

would be futile, and his motion to amend the complaint is DENIED.

III. CONCLUSION

For the reasons above, the defendants’ Motion to Dismiss or

in the Alternative for Summary Judgment is GRANTED and Simpson’s

Motion for Leave to Amend and Supplement Complaint is DENIED.

IT IS SO ORDERED.

/s/ Tu M. Pham__________________________

Tu M. Pham

Chief United States Magistrate Judge

March 9, 2021___________________________

Date

10Simpson provided this description for each occurrence listed in

the proposed amended complaint. (ECF No. 28 at 2-3.)