Banks v. City of Whitehall

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 Banks, et al. v. City of Whitehall, et al. No. 01-4155

ELECTRONIC CITATION: 2003 FED App. 0340P (6th Cir.)

File Name: 03a0340p.06 Before: BATCHELDER and ROGERS, Circuit Judges;

RUSSELL, District Judge.*

UNITED STATES COURT OF APPEALS _________________

FOR THE SIXTH CIRCUIT COUNSEL

_________________

ARGUED: Ronald B. Noga, WELTMAN, WEINBERG &

STEWART BANKS ; BAMBI X REIS, Columbus, Ohio, for Appellants. Steven Lee Smith,

- SMITH & COLNER, Columbus, Ohio, for Appellees.

MOTEL, INC.; RICHARD H. ON BRIEF: Ronald B. Noga, WELTMAN, WEINBERG &

TURNER; P.T. PROPERTIES, -

- No. 01-4155 REIS, Columbus, Ohio, for Appellants. Steven Lee Smith,

INC., - SMITH & COLNER, Columbus, Ohio, for Appellees.

Plaintiffs-Appellants, >

, _________________

-

v. - OPINION

- _________________

CITY OF WHITEHALL; DENN IS -

J. FENNESSEY; JOHN WOLF ; - ALICE M. BATCHELDER, Circuit Judge. The plaintiffs

- appeal the district court’s order granting summary judgment

CHARLES D. UNDERWOOD;

- to the defendants in this action brought pursuant to 42 U.S.C.

CATHY CRANDALL ; TIM - § 1983, claiming that the defendants, in the course of strictly

TILTON , - enforcing local building and fire codes in the city, took the

Defendants-Appellees. - plaintiffs’ property for public use without just compensation

- and enforced the law selectively in violation of the Fifth and

N Fourteenth Amendments. The district court granted the

Appeal from the United States District Court defendants’ motion for summary judgment on several

for the Southern District of Ohio at Columbus. alternative grounds. First, that the plaintiffs’ claims are

No. 99-01082—James L. Graham, District Judge. barred by a two-year statute of limitations; second, that their

claims are barred by both claim preclusion and issue

Argued: August 7, 2003 preclusion; third, that their inverse condemnation and takings

claims are not ripe for review pursuant to principles set forth

Decided and Filed: September 24, 2003 in Williamson County Regional Planning Commission v.

Hamilton Bank of Johnson City, 473 U.S. 172 (1985); fourth,

*

The Honorable Thomas B. Russell, United States District Judge for

the Western District of Kentucky, sitting by designation.

1

No. 01-4155 Banks, et al. v. City of Whitehall, et al. 3 4 Banks, et al. v. City of Whitehall, et al. No. 01-4155

that the individual defendants are entitled to immunity; and or entered into a binding contract with a real estate broker in

finally, that all of their claims are without merit. a good faith effort to sell the property. The stipulated

injunction required that on July 9, 1996, if the structures

The plaintiffs do not challenge the district court’s holding comprising the motel were still standing, they would be

that their takings and inverse condemnation claims are not closed pending demolition or sale. Eventually, after two

ripe, and we need not address those claims on appeal. contempt motions and several hearings, the court found that

Ewolski v. City of Brunswick, 287 F.3d 492, 516-17 (6th Cir. Banks and the motel were in contempt and ordered the motel

2002). Because we conclude that the remaining claims are all razed. The appellate court held that Banks and the motel

barred by the applicable statute of limitations, we affirm the were bound by their stipulations, and the motel was then

judgment of the district court without reaching the alternative demolished.

bases of the district court’s ruling.

After finding the Robinwood Trailer Park and one of the

Factual Background P.T. Properties buildings in violation of various code

provisions, the City filed an action against Turner and P.T.

The plaintiffs in this action are the Bambi Motel, Inc. and Properties on November 22, 1996, in the Environmental

its owner, Stewart Banks, and P.T. Properties, Inc. and Division of the Franklin County Municipal Court, seeking to

Richard Turner, the owner and operator, respectively, of close the trailer park and to demolish the building. Turner

Robinwood Trailer Park and two other commercial buildings. made the repairs necessary to bring both properties into

All of these properties are located in the City of Whitehall, compliance, and, on August 29, 1997, the action was

Ohio. The allegations in this § 1983 action have their genesis dismissed.

in the city’s campaign of strict enforcement of its fire and

building codes in order to force certain businesses that were The plaintiffs filed this action in the district court on

in violation of those codes to shut down, either until the October 18, 1999, against the City of Whitehall and various

violations could be remedied, or permanently. The Bambi of its officials, in their official and individual capacities,

Motel, Robinwood Trailer Park and the P.T. Properties complaining that their actions had been undertaken in an

commercial buildings were targets of this campaign. effort to drive the plaintiffs out of business; that these actions

constituted inverse condemnation and takings without just

The City filed an action in the Environmental Division of compensation; that the defendants had selectively enforced

the Municipal Court in Franklin County, Ohio, on November the building and fire codes against these plaintiffs and thereby

22, 1995, against Banks and the Bambi Motel, alleging worked a taking without just compensation and a violation of

numerous building code, fire code and licensing law the Equal Protection Clause of the Fourteenth Amendment;

violations, as well as seeking an injunction to abate a public and that the plaintiffs were entitled to injunctive relief. The

nuisance allegedly resulting from drug trafficking, district court granted summary judgment to the defendants,

prostitution and other criminal activity occurring at the motel. and this timely appeal followed.

On April 10, 1996, Banks and the Bambi Motel stipulated to

a permanent injunction, based on stipulated findings of Analysis

violations of the law, requiring that by July 9, 1996, Banks

would have either (1) razed the structures comprising the We review de novo the district court’s holding that the

motel or contracted to have it razed, or (2) sold the property plaintiffs’ claims were filed outside of the applicable statute

No. 01-4155 Banks, et al. v. City of Whitehall, et al. 5 6 Banks, et al. v. City of Whitehall, et al. No. 01-4155

of limitations. Tolbert v. Ohio Dep’t of Transp., 172 F.3d Not only did we determine en banc in Browning that a two-

934, 938 (6th Cir. 1999). year statute of limitations applies to section 1983 actions, but

in two later cases, LRL Properties v. Portage Metro Housing

In this appeal, the plaintiffs do not contend that they filed Authority, 55 F.3d 1097, 1105 (6th Cir. 1995), and Kuhnle

this section 1983 action within two years of the defendants’ Brothers, Inc. v. County of Geauga, 103 F.3d 516, 519-20

allegedly unconstitutional conduct. The plaintiffs’ sole (6th Cir. 1997), we squarely rejected attempts to get around

argument pertaining to the statute of limitations is that Browning. As we noted in LRL Properties, “[i]t is the

“Browning v. Pendleton, . . . which establishes a two-year (2) well-settled law of this Circuit that ‘[a] panel of this Court

statute of limitations for 42 USC § 1983 claims is contrary to cannot overrule the decision of another panel. The prior

Ohio law and should be overruled with respect to § 1983 decision remains controlling authority unless an inconsistent

claims arising in Ohio.” The plaintiffs have no legal basis decision of the United States Supreme Court requires

whatsoever for advancing this argument in this court. modification of the decision or this Court sitting en banc

overrules the prior decision.’” 55 F.3d at 1105 n.2 (quoting

In 1985, the Supreme Court held that section 1983 claims Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689

were best characterized as tort actions for the recovery of (6th Cir. 1985)). There is no such inconsistent decision of

damages for personal injuries and federal courts must borrow either the Supreme Court or this court.

the statute of limitations governing personal injury actions in

the state in which the section 1983 action was brought. The plaintiffs’ brief includes in its statement of

Wilson v. Garcia, 471 U.S. 261, 275-76 (1985). Four years facts—although not as a distinct legal argument—the claim

later, in Owens v. Okure, 488 U.S. 235 (1989), the Supreme that a recent deposition of one of the defendants in this case,

Court refined its Wilson holding, and declared that in a state taken in an unrelated lawsuit, brought to light evidence that

with more than one statute of limitations for personal injury the City’s actions were designed to take the plaintiffs’

actions, the state’s residual or general statute of limitations property “without Due Process or Just Compensation to

governing personal injury actions is to be applied to all facilitate the redevelopment of East Main Street for the

section 1983 actions brought in that state. Id. at 249-50. The political and personal advancement of the individual

ink was hardly dry on Okure when this circuit, sitting en Defendants,” and upon discovery of this evidence, the

banc, decided Browning v. Pendleton, 869 F.2d 989 (6th Cir. plaintiffs were left with no vehicle to redress these

1989). Noting that in Okure, the Supreme Court had constitutional violations except this section 1983 action.

“unanimously held that when a state, like Ohio, has multiple Such a discovery, if true, might enable the plaintiffs to avoid

statutes of limitation for personal injury actions, the the application of the statute of limitations to bar their claims.

appropriate state statute of limitations to borrow for claims But we find no evidence in this record that the plaintiffs’

brought under 42 U.S.C. § 1983 is the residual or general claim is true. We have thoroughly reviewed the record,

personal injury statute of limitations,” id. at 991, we held that including the portions of the deposition that supposedly

“the appropriate statute of limitations for 42 U.S.C. § 1983 produced “new” evidence, as well as newspaper accounts

civil rights actions arising in Ohio is contained in Ohio Rev. from the mid-1990s that contained as much inculpatory

Code Ann. § 2305.10, which requires that actions for bodily evidence as the deposition, and we conclude that the

injury be filed within two years after their accrual.” Id. at deposition did not alert the plaintiffs to any evidence that they

992. could not have easily discovered prior to the expiration of the

statute of limitations.

No. 01-4155 Banks, et al. v. City of Whitehall, et al. 7 8 Banks, et al. v. City of Whitehall, et al. No. 01-4155

We think it is prudent, however, in light of this allegation, regulations with impunity, and the conduct of Whitehall

to note briefly that even if the record contained some officials in enforcing those codes and regulations was neither

indication that the plaintiffs could not have discovered this “arbitrary” nor “conscience-shocking” in the constitutional

evidence sooner, there is no basis whatever for their claim sense. See Bowers v. City of Flint, 325 F.3d 758 (6th Cir.

that their substantive due process rights were violated when 2003) (majority and concurring opinions). In fact, the

the defendants rigorously enforced Whitehall’s building and government regularly uses the civil law to address problems

fire codes in a specific area of town in order to shut down that it could, perhaps more directly, address with the criminal

businesses around which drug dealers and prostitutes often law. See, e.g., 21 U.S.C. § 881 (authorizing civil forfeiture

congregated. The plaintiffs argue that there is a so-called proceedings against property acquired in or associated with

“middle ground” protected by substantive due process the illegal drug trade). Finally, the plaintiffs cannot prevail

wherein the government cannot act arbitrarily or capriciously on a claim of selective enforcement because they have not

with respect to property even if its actions do not rise to the shown that they “belong[] to an identifiable group, such as . . .

level of a taking. They pursue this argument notwithstanding a particular race or religion, or a group exercising

their admission that Stewart Banks and the Bambi Motel constitutional rights,” and who were targeted for law

voluntarily entered into an order before the state enforcement action as a result of that group status.

environmental court admitting to the existence of various Gardenhire v. Schubert, 205 F.3d 303, 318-19 (6th Cir.

code violations and agreeing to take specified remedial 2000).

measures, and Richard Turner and P.T. Properties, Inc. made

necessary repairs to their facilities, which enabled Whitehall None of the defendants’ actions which the plaintiffs

to lift its condemnation order and dismiss any pending legal complain of occurred within two years of the filing of this

actions against them. lawsuit, nor were the plaintiffs prevented from timely

discovering any actions of the defendants that could

As an initial matter, we note that the Fifth Amendment, and conceivably be redressed by a lawsuit brought under section

not substantive due process, is the basis upon which a 1983. Because this action is wholly barred by the applicable

plaintiff may challenge the government’s actions with respect statute of limitations, we need not reach any of the alternative

to his property: “Graham v. Connor, 490 U.S. 386, 395 bases upon which the district court granted summary

(1989), precludes the use of substantive due process analysis judgment to the defendants.

when a more specific constitutional provision governs.” City

of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 123 S. Ct. The judgment of the district court is AFFIRMED.

1389, 1397 (2003) (Scalia, J., concurring) (internal quotations

omitted). Moreover, to the extent that the plaintiffs attempt to

avoid the dictates of Graham by claiming that their challenge

is not to the “quasi-taking” of their property but is instead to

the conduct of Whitehall officials—namely, the rigorous and

allegedly selective enforcement of city regulations with the

purpose of shutting down businesses suspected of

contributing to a culture of crime—that challenge is wholly

without foundation. There exists no “fundamental” right in

our legal system to violate a municipality’s codes and