Angelo DiLuzio v. Village of Yorkville Ohio

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 15a0179p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

ANGELO DILUZIO, ┐

Plaintiff-Appellee, │

│

│ Nos. 14-3970/3971

v. │

>

│

VILLAGE OF YORKVILLE, OHIO, JOHN DIFILIPPO, and │

KEVIN KLUBERT (14-3970); JOHN MORELLI and │

JERRY DAVIS (14-3971), │

Defendants-Appellants. │

┘

Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 2:11-cv-01102—Michael H. Watson, District Judge.

Decided and Filed: August 6, 2015

Before: BATCHELDER, ROGERS, and KETHLEDGE, Circuit Judges

_________________

COUNSEL

ON BRIEF: Robert H. Stoffers, Frank H. Scialdone, Jason R. Deschler, MAZANEC, RASKIN

& RYDER CO., L.P.A., Columbus, Ohio, for Appellants in 14-3970. Michael J. Valentine,

Melvin J. Davis, REMINGER CO., LPA, Columbus, Ohio, for Appellants in 14-3971. James D.

McNamara, Columbus, Ohio, for Appellee.

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OPINION

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ALICE M. BATCHELDER, Circuit Judge. In this interlocutory appeal from the district

court’s denial of a claim of qualified immunity, the defendants argue that the plaintiff’s evidence

1

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did not create genuine disputes of material fact so as to overcome summary judgment. For the

reasons that follow, we establish our appellate jurisdiction and AFFIRM.

I.

The defendants in this case are the Village of Yorkville (Ohio), Mayor John DiFilippo,

Fire Chief Kevin Klubert, Police Chief John Morelli, demolition contractor Greg Nemeth, and

Police Officer Jerry Davis. The plaintiff, Angelo DiLuzio, owned three adjacent buildings in the

heart of downtown Yorkville, and those buildings caught fire under suspicious circumstances.

Fire Chief Klubert led the firefighting effort and coordinated with Mayor DiFilippo on a decision

to demolish a portion of one of the burned buildings immediately, without any inspection or

formal decision on the need for demolition. Fire Chief Klubert and Mayor DiFilippo had ordered

Officer Davis to find DiLuzio and bring him to a meeting, which—against DiLuzio’s wishes—he

did. At that meeting, DiLuzio insisted the buildings could be repaired and he departed believing

that the matter was ended. Mayor DiFilippo nonetheless ordered Nemeth to demolish most of

the south building, though he left one wall standing and left the middle building intact, even

though it had suffered the worst damage because the fire had started there.

Less than a week later, Police Chief Morelli (acting on orders from Mayor DiFilippo)

approached DiLuzio’s son with a low-ball offer from an anonymous investor, to purchase the

property “as is.” DiLuzio declined and Chief Morelli approached DiLuzio himself with a

similar, but lower, “as is” offer about two months later. DiLuzio declined again and Morelli,

Klubert, and DiFilippo began to issue fire department citations to DiLuzio, threatening $600 per

day fines until he cleaned up the property. When the Village solicitor dismissed the first of these

citations, which had included false statements about inspections and authorizations, Morelli

falsified and forged a State Fire Marshall citation threatening $1,000 per day fines. This too was

dismissed after the State Fire Marshall revealed it was a forgery. The Village then passed a

criminal ordinance concerning unkempt properties and Morelli charged DiLuzio under it, at one

point falsely notarizing his own signature by using a rubber stamp of DiFilippo’s signature.

Eventually, DiLuzio filed a 42 U.S.C. § 1983 action in federal court, claiming due

process violations, among other things, as well as federal conspiracy charges and state law

offenses. Basically, DiLuzio theorized that Mayor DiFilippo wanted him to sell his property to a

Nos. 14-3970/3971 DiLuzio v. Village of Yorkville, et al. Page 3

developer, so DiFilippo had knowingly faked the emergency situation as an excuse to order the

demolition and then used the threat of the huge daily fines to pressure DiLuzio to sell. DiLuzio

has discovered and introduced into the record evidence that supports his theory.

The defendants moved for summary judgment, primarily on the basis of qualified

immunity, but also on a basic theory that DiLuzio could not prove his claims. The district court

granted summary judgment on several claims, but denied it on others. Specifically, as pertinent

here, the court denied qualified immunity to Mayor DiFilippo and Fire Chief Klubert on the due

process claim concerning demolition of the building, denied qualified immunity to Police Chief

Morelli and Officer Davis on substantive due process claims, and denied qualified immunity to

Nemeth because he was not a state actor. The court also denied summary judgment on the

conspiracy claims and certain state law claims, and to the Village on final-decision-maker

liability claims. All but Nemeth appealed, citing the denial of qualified immunity as a predicate

jurisdictional claim and urging pendant appellate jurisdiction for their other claims.

II.

Qualified immunity shields government officials in the performance of discretionary

functions from standing trial for civil liability unless their actions violate clearly established

rights. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A plaintiff who brings a § 1983 action

against such an official bears the burden of overcoming the qualified immunity defense. Quigley

v. Tuong Vinh Thai, 707 F.3d 675, 681 (6th Cir. 2013). At the summary judgment stage, the

plaintiff must show that (1) the defendant violated a constitutional right and (2) that right was

clearly established. Id. at 680. In so doing, the plaintiff must, at a minimum, offer sufficient

evidence to create a “genuine issue of fact,” that is, “evidence on which [a] jury could reasonably

find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 256 (1986).

Put another way, if the district court determines that the plaintiff’s evidence would

reasonably support a jury’s finding that the defendant violated a clearly established right, the

court must deny summary judgment. Cf. Quigley, 707 F.3d at 681. As the denial of summary

judgment is ordinarily not a final decision within the meaning of 28 U.S.C. § 1291, it is generally

not immediately appealable. But the “denial of a claim of qualified immunity, to the extent that

Nos. 14-3970/3971 DiLuzio v. Village of Yorkville, et al. Page 4

it turns on an issue of law, is an appealable ‘final decision’ within the meaning of [] § 1291

notwithstanding the absence of a final judgment.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).

Thus, we may decide an appeal challenging the district court’s legal determination that

the defendant’s actions violated a constitutional right or that the right was clearly established. Id.

We may also decide an appeal challenging a legal aspect of the district court’s factual

determinations, such as whether the district court properly assessed the incontrovertible record

evidence. See Plumhoff v. Rickard, 572 U.S. --, 134 S. Ct. 2012, 2019 (2014); Roberson v.

Torres, 770 F.3d 398, 402 (6th Cir. 2014). And we may decide, as a legal question, an appeal

challenging the district court’s factual determination insofar as the challenge contests that

determination as “blatantly contradicted by the record, so that no reasonable jury could believe

it.” Scott v. Harris, 550 U.S. 372, 380 (2007); Plumhoff, 134 S. Ct. at 2020; Roberson, 770 F.3d

at 402; Austin v. Redford Twp. Police Dept., 690 F.3d 490, 496 (6th Cir. 2012) (“In exceptional

circumstances, an appellate court may overrule a district court’s determination that a factual

dispute exists where evidence in the record establishes that the determination is ‘blatantly and

demonstrably false.’” (relying on Bishop v. Hackel, 636 F.3d 757, 769 (6th Cir. 2011)).

We may not, however, decide an appeal challenging the district court’s determination of

“‘evidence sufficiency,’ i.e., which facts a party may, or may not, be able to prove at trial.”

Johnson v. Jones, 515 U.S. 304, 313 (1995). Because such a challenge is purely fact-based,

lacking any issue of law, it “does not present a legal question in the sense in which the term was

used in Mitchell,” Plumhoff, 134 S. Ct. at 2019, and is therefore not an appealable “final

decision” within the meaning of 28 U.S.C. § 1291. These types of prohibited fact-based

(“evidence sufficiency”) appeals challenge directly the plaintiff’s allegations (and the district

court’s acceptance) of “what [actually] occurred[] or why an action was taken or omitted,” Ortiz

v. Jordan, 562 U.S. 180, 190 (2011), who did it, Johnson, 515 U.S. at 307, or “nothing more than

whether the evidence could support a [jury’s] finding that particular conduct occurred,” Behrens

v. Pelletier, 516 U.S. 299, 313 (1996). We have also held that a defendant may not challenge the

inferences the district court draws from those facts, as that too is a prohibited fact-based appeal.

Nos. 14-3970/3971 DiLuzio v. Village of Yorkville, et al. Page 5

Romo v. Largen, 723 F.3d 670, 673-74 (6th Cir. 2013).1 As a rule, we either dismiss these fact-

based (“evidence sufficiency”) appeals for lack of jurisdiction or excise the prohibited challenge.

See Behrens, 516 U.S. at 312-13 (“Denial of summary judgment often includes a determination

that there are controverted issues of material fact and Johnson surely does not mean that every

such denial of summary judgment is nonappealable.” (internal citation omitted)).

As a matter of practical application, this is merely to say that we may not decide a

challenge directly to the district court’s determination of the record-supported evidence or the

inferences it has drawn therefrom, but we may decide a challenge with any legal aspect to it, no

matter that it might encroach on the district court’s fact-based determinations. See Roberson,

770 F.3d at 403 (“Plumhoff appears to cabin the reach of Johnson to purely factual issues that the

trial court might confront if the case were tried.” (quotation marks omitted; emphasis added));

Family Serv. Ass’n v. Wells Tp., 783 F.3d 600, 607 (6th Cir. 2015) (“Johnson applies to

interlocutory appeals that solely contest the plaintiff’s account of the facts.” (emphasis added));

see also Rudlaff v. Gillispie, -- F.3d --, No. 14-1712, 2015 WL 3981335, *2 (6th Cir. 2015).

And, in the event that legal and factual challenges are confused or entwined, “we must

separate an appealed order’s reviewable determination (that a given set of facts violates clearly

established law) from its unreviewable determination (that an issue of fact is ‘genuine’).”

Roberson, 770 F.3d at 402 (citing Johnson, 515 U.S. at 319) (quotation marks omitted).

1

Although an argument could be made that the Supreme Court has rejected this this proposition (thus

implicitly overruling Romo), we decline to make such a holding. In Plumhoff, the police fatally shot a fleeing driver,

the plaintiff sued claiming excessive force, and the accused officers moved for summary judgment on qualified

immunity grounds. Estate of Allen v. City of West Memphis, No. 05-2489, 2011WL197426, *1-3 (W.D. Tenn., Jan.

20, 2011). The district court denied the motion by drawing certain inferences from the evidence: e.g., “it is not clear

that [t]his evasion of arrest was sufficiently dangerous to justify deadly force,” id. at *9; “a reasonable jury could

determine that the [officers’] belief that danger was imminent was not reasonable,” id. at *10; “the officers had no

reason to believe that the suspects were violent or would continue to pose a threat if they were not apprehended,” id.

On direct appeal, we affirmed and accepted those inferences, but with sparse discussion. Estate of Allen v.

City of West Memphis, 509 F. App’x 388, 392-93 (6th Cir. 2012). In reversing the decision, however, the Supreme

Court considered the same evidence but drew the opposite inferences: “all that a reasonable police officer could

have concluded was that [the driver] was intent on resuming his flight and that, if he was allowed to do so, he would

once again pose a deadly threat for others on the road,” Plumhoff, 134 S. Ct. at 2022. That is, the Court drew its

own inferences from the evidence, it did not defer to the district court’s inferences. But the Court did not discuss its

approach to assessing the inferences and the question of deference (or jurisdictional effect) was not at issue.

Moreover, those were inferences drawn from incontrovertible video evidence, not inferences drawn in the light most

favorable to the plaintiff from the plaintiff’s record-supported evidence, as we have here and as is the typical case.

Because this latter distinction may matter and because Plumhoff offers no consideration of the issue, we decline to

read Plumhoff as deciding this issue in the ordinary case. Accordingly, Romo remains the law of the Circuit.

Nos. 14-3970/3971 DiLuzio v. Village of Yorkville, et al. Page 6

Similarly, we can separate an appellant’s reviewable challenges from its unreviewable. See, e.g.,

Wenk v. O’Reilly, 783 F.3d 585, 599 (6th Cir. 2015) (recognizing that the appellant improperly

premised his arguments on his evidence and his version of the disputed facts, despite his

purporting to accept the plaintiff-appellee’s version, and proceeding with our appellate review by

accepting the plaintiff-appellee’s version of the disputed facts and evidence); Romo, 723 F.3d at

674 & n.2 (6th Cir. 2013) (recognizing that the appeal improperly challenged the soundness of

the district court’s finding of a genuine dispute of material facts, but accepting appellate

jurisdiction by ignoring the “factual disputations” and “ruling on what [wa]s properly before us

[while] say[ing] nothing about what [wa]s jurisdictionally not before us”). That is, we can

“ignore the defendant’s attempts to dispute the facts and nonetheless resolve the legal issue,

obviating the need to dismiss the entire appeal for lack of jurisdiction.” Estate of Carter v. City

of Detroit, 408 F.3d 305, 310 (6th Cir. 2005) (deciding based on the plaintiff’s record facts).

In so doing, because we defer to the district court’s factual determinations, ideally we

need look no further than the district court’s opinion for the facts and inferences cited expressly

therein. That is, in deciding these legal challenges on interlocutory appeal from the denial of

qualified immunity, we often may be able merely to adopt the district court’s recitation of facts

and inferences. See Johnson, 515 U.S. at 319. Of course, in briefing or arguing for reversal on

legal grounds, the defendant-appellant may—indeed, for some arguments, must—point to some

other of the plaintiff’s record evidence, or some incontrovertible record evidence, to support that

argument. See, e.g., Scott, 550 U.S. at 380; Bishop, 636 F.3d at 769. Alternatively, or

correspondingly, the plaintiff-appellee may point to additional record evidence in support of its

position, or to bolster the district court’s determination. Thus, while we need not engage in a

plenary review of the record, neither are we limited to only the facts, evidence, or inferences that

the district court has stated expressly. See Estate of Carter, 408 F.3d at 310 (relying on the

“facts as alleged by the Estate”). Rather, we must make the legal determination of whether the

defendant violated a clearly established right, based on those now (for this purpose) undisputed

record facts, i.e., “once we have determined the relevant set of facts and drawn all inferences in

favor of the nonmoving party to the extent supportable by the record.” Scott, 550 U.S. at 381

n.8. Moreover, the presumption favoring the district court’s factual determinations is such that,

if the district court has cited no facts or evidence (e.g., has “simply den[ied the] summary

Nos. 14-3970/3971 DiLuzio v. Village of Yorkville, et al. Page 7

judgment motion[] without indicating [its] reasons for doing so”), we “may have to undertake a

cumbersome review of the record to determine what facts the district court . . . likely assumed.”

Johnson, 515 U.S. at 319 (quoted with approval in Behrens, 516 U.S. at 313).

Finally, it bears mention that, in accepting the district court’s factual determinations and

relying on the plaintiff’s record evidence for the purpose of deciding the interlocutory appeal, we

do not ourselves make any findings of fact or inference for purposes of any subsequent

proceedings. See, e.g., Norelus v. Denny’s, Inc., 628 F.3d 1270, 1293 (11th Cir. 2010) (“[A]s

everyone knows, appellate courts may not make fact findings.”); Nelson v. Shuffman, 603 F.3d

439, 448 (8th Cir. 2010) (“Whether [the plaintiff] is ultimately able to prove the alleged factual

bases for his claims is a matter left for the finder of fact [on remand]—not the appellate court on

interlocutory appeal.”); Golden Bridge Technology, Inc. v. Nokia, Inc., 527 F.3d 1318, 1323

(Fed. Cir. 2008) (“Appellate courts review district court judgments; we do not find facts.”).

In this appeal, the defendants proclaim that they are accepting plaintiff DiLuzio’s version

of the facts but, in reality, they rest each of their arguments (but for one) on their own version of

the disputed facts and the inferences they would draw from them. For each of their challenges,

we will discard the fact-based or “evidence sufficiency” portion of the appeal—that is, any

challenge to the district court’s view of the facts or its associated inferences or, more frequently,

any challenge to plaintiff DiLuzio’s version of the record-supported evidence—and resolve the

legal challenge based on those given facts and inferences. See Estate of Carter, 408 F.3d at 310.

Police Chief John Morelli

DiLuzio says Police Chief John Morelli violated his substantive due process rights

through an abuse of authority when he pressured DiLuzio “to sell his property to a private third

party[,] and [then] punish[ed] him for not doing so.” R. 159 at 25. Chief Morelli denies doing

any of this and insists that he merely decided that the property contained a nuisance and made

valid efforts to get DiLuzio to abate that nuisance, which does not rise to the level of a

substantive due process violation, R. 159 at 22-23. We have no jurisdiction to review Chief

Morelli’s disagreement with the facts (or inferences therefrom) as that is solely a challenge to

DiLuzio’s evidence. Plumhoff, 134 S. Ct. at 2019; Johnson, 515 U.S. at 319-20. But we can, for

purposes of this appeal from the denial of summary judgment, either adopt the district court’s

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determination of the facts or accept DiLuzio’s record-supported facts, and decide as a matter of

law whether Chief Morelli’s conduct violated substantive due process. See Estate of Carter,

408 F.3d at 310. Those facts include: that it was Morelli who conveyed the low-ball, “as is”

purchase offers four days after the fire and again two months later (and lied about doing so);

ordered Fire Chief Klubert to issue the fire department citation just two days later, based on

falsehoods that Fire Safety Inspector John Captor had inspected the property and Village

Solicitor Bob Stickles had approved the citation; falsified the State Fire Marshal citation on State

letterhead, which was unauthorized and contained known falsehoods; and filed two subsequently

withdrawn criminal complaints, on one of which he notarized his own oath and signature by

using a rubber stamp of Mayor DiFilippo’s signature. A jury could reasonably find from this

evidence that Chief Morelli “intended to injure” DiLuzio in a way “unjustifiable by any

governmental interest” such that his conduct “shocks the conscience” and violates substantive

due process. See Caldwell v. City of Louisville, 120 F. App’x. 566, 574 (6th Cir. 2004) (internal

quotation marks omitted).

For the same reason, Chief Morelli is not entitled to state law immunity under Ohio

Revised Code § 2744.03(A), which specifically excepts acts done “with malicious purpose, in

bad faith, or in a wanton or reckless manner,” § 2744.03(A)(6)(b). In Ohio, for purposes of this

provision, “‘[b]ad faith’ involves a dishonest purpose, conscious wrongdoing, the breach of a

known duty through some ulterior motive or ill will, as in the nature of fraud, or an actual intent

to mislead or deceive another.” Cook v. Cincinnati, 658 N.E.2d 814, 821 (Ohio App. Ct. 1995).

A jury could reasonably find from DiLuzio’s evidence that Chief Morelli acted in bad faith.

DiLuzio also says Police Chief Morelli conspired with others in “baseless legal . . .

campaigns against [him] in an effort to force him to sell his property,” R. 159 at 28. Chief

Morelli denies that he was pressuring DiLuzio to sell his property and insists that he just tried to

trick DiLuzio into cleaning it up. R. 159 at 29. Chief Morelli argues that two facts prove his

explanation: (1) the Village ceased its legal campaign against DiLuzio once he cleaned the

property and (2) DiLuzio admitted that he would have sold his property for the right price. But,

as the district court explained, these facts do not prove this explanation: the low-ball “as is”

purchase offer would not encourage a cleanup rather than a sale and DiLuzio did, in fact, reject

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Morelli’s low-ball offers. We have no jurisdiction to reconsider the facts underlying Chief

Morelli’s challenges to DiLuzio’s evidence or to second-guess the inferences the district court

drew from those facts. Johnson, 515 U.S. at 319-20; Romo, 723 F.3d at 673-74. But we can

decide, as a matter of law, whether those record-supported facts and inferences could prove the

conspiracy, see Estate of Carter, 408 F.3d at 310, considering that it was Morelli who conveyed

the purchase offer to DiLuzio on Mayor DiFilippo’s instruction; directed Fire Chief Klubert’s

issuance of the fire department citation; forged the State Fire Marshal citation with DiFilippo’s

approval; and filed criminal complaints with DiFilippo’s encouragement. Given that a plaintiff

may, and often must, prove a conspiracy through circumstantial evidence, Webb v. United States,

789 F.3d 647, 671 (6th Cir. 2015), we agree with the district court that a jury could reasonably

find from the proffered evidence that “there existed a plan between [Police] Chief Morelli and

Mayor DiFilippo to undertake a series of flawed legal actions to force [DiLuzio] to sell his

property and [to] punish him for not doing so.” R. 159 at 30.

Police Officer Jerry Davis

DiLuzio says Police Officer Jerry Davis unlawfully physically seized him, despite his

verbal refusal, and placed him in a police car to drive him to a meeting. R 159 at 31. Officer

Davis denies grabbing DiLuzio or ordering him anywhere and instead insists that he merely gave

DiLuzio a ride, which DiLuzio requested, and such conduct is not unlawful, R. 159 at 31-33. We

have no jurisdiction to review Officer Davis’s disagreement with the facts, as that is solely a

challenge to DiLuzio’s evidence. Johnson, 515 U.S. at 319-20. But we can accept DiLuzio’s

record-supported facts and decide as a matter of law whether Davis’s conduct violates the Fourth

Amendment. The district court summarized DiLuzio’s evidence as: “in response to [DiLuzio]’s

assertion that he did not want to go . . . Officer Davis told [him], ‘you’re going with me,’

grabbed [his] left arm, put his other arm around [DiLuzio’s] shoulder, and physically escorted

[him] to the police cruiser, all while in his police uniform.” R. 159 at 34-35. Given that Officer

Davis admittedly had no just reason for “seizing” DiLuzio and “[a] ‘seizure’ occurs when police

detain an individual under circumstances where a reasonable person would not feel free to

leave,” United States v. Lopez-Medina, 461 F.3d 724, 739 (6th Cir. 2006), a jury could

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reasonably find from DiLuzio’s evidence that a reasonable person would not have felt free to

ignore Officer Davis in this context, meaning that Davis’s conduct was an unlawful seizure.

Mayor John DiFilippo

DiLuzio says Mayor John (Jake) DiFilippo knew that DiLuzio’s building was not actually

in a dangerous condition, but DiFilippo had a secret personal desire to demolish the building and

coerce DiLuzio to sell that property, so he lied (saying that an emergency dangerous condition

necessitated quick action) as a pretext for proceeding immediately with the partial demolition,

before DiLuzio could stop him via predeprivation process. R. 161 at 14. Mayor DiFilippo

denies that he lied and insists that he thought the burned building created an emergency because

of its dangerous condition and necessitated immediate demolition. From this, DiFilippo argues

that because he was addressing an emergency condition, he was entitled to judgment as a matter

of law pursuant to either Parratt v. Taylor, 451 U.S. 527 (1981), or Harris v. City of Akron,

20 F.3d 1396 (6th Cir. 1994). We have no jurisdiction to decide Mayor DiFilippo’s appeal to the

extent that he insists he believed that the damage to DiLuzio’s building created an unsafe

condition requiring immediate demolition. That argument is solely a challenge to DiLuzio’s

evidence suggesting that Mayor DiFilippo never actually believed that demolition was necessary,

and instead simply used the fire as an excuse to destroy DiLuzio’s property and thereby force

him to sell. But we can decide, as a matter of law, whether Mayor DiFilippo’s conduct violated

procedural due process if it was pretextual, as the district court inferred from DiLuzio’s record-

supported facts, which included: the very early call to the demolition contractor (Nemeth) before

there was even any visible fire, let alone damage; the questionable (highly suspect) firefighting

tactics employed; DiLuzio’s account of the meeting; the absence of any pre-demolition

inspection; the demolition of the south building instead of the fire-damaged middle building; the

failure to document the decision-making or demolition; third-party testimony that Fire Chief

Klubert did not believe demolition was necessary but did it on DiFilippo’s orders; testimony

from other firemen, the State Fire Marshall inspector, and building experts that demolition was

unnecessary; and the circumstances surrounding the purchase offers, among many other things.

The district court cited some of DiLuzio’s record evidence in its opinion, R. 161 at 31-32, and in

his brief on appeal DiLuzio has pointed us to additional supporting record facts.

Nos. 14-3970/3971 DiLuzio v. Village of Yorkville, et al. Page 11

Under Parratt, 451 U.S. at 543, due process does not require pre-deprivation notice-and-

hearing process when the State is in no position to provide it because the deprivation was due to

a defendant official’s random or unauthorized act. See Lane v. City of Pickerington, 588 F.

App’x 456, 466 (6th Cir. 2014) (quoting Hudson v. Palmer, 468 U.S. 517, 534 (1984)); Macene

v. MJW, Inc., 951 F.2d 700, 706 (6th Cir. 1991) (“In Parratt cases, then, the facts are such that

pre-deprivation remedies are impossible and adequate post-deprivation remedies are all that is

required by due process.”). Similarly, under Harris, 20 F.3d at 1401, “[w]hen the situation

necessitates ‘quick action’ by the [S]tate or makes efforts to provide a meaningful predeprivation

process impracticable, the persons acting under state authority may proceed without violating the

property owner’s rights so long as the state provides an adequate postdeprivation procedure.”

DiLuzio has produced admissible evidence to support his theory that Mayor DiFilippo

acted in bad faith, that there was actually no emergency condition or necessity for quick action,

and that nothing prevented the Village (or DiFilippo) from providing pre-deprivation process.

Consequently, Parratt and Harris do not apply in this case. Simply put, officials cannot deny

citizens due process by falsely invoking an emergency need for quick action. See Elsmere Park

Club, L.P. v. Town of Elsmere, 542 F.3d 412, 418 (3d Cir. 2008) (“That is, we cannot apply so

much deference as to allow the government to avoid affording due process to citizens by

arbitrarily invoking emergency procedures.” (quotation and editorial marks omitted)). The

district court held that “a genuine issue of material fact exists as to whether [the] [d]efendants’

justification for demolishing [DiLuzio]’s building was mere pretext.” R. 161 at 17, 32, 38.

Mayor DiFilippo responds that if he acted in bad faith, then his decision to demolish

DiLuzio’s building was a “random and unauthorized” act, such that predeprivation due process

was unnecessary, pursuant to Parratt. An official’s act is “random and unauthorized” if it was

unpredictable and he was “not acting pursuant to any established state procedure.” Zinermon v.

Burch, 494 U.S. 113, 130 (1990). Here, Mayor DiFilippo claims to have acted pursuant to Ohio

Revised Code § 715.26(B), which authorizes municipalities to demolish private buildings “[i]f an

emergency exists, as determined by” the municipality. Thus, DiFilippo’s decision was not

“random or unauthorized,” regardless of whether he acted with “intent to injure” DiLuzio or in

bad faith as to whether an emergency actually existed. See Harris, 20 F.3d at 1403.

Nos. 14-3970/3971 DiLuzio v. Village of Yorkville, et al. Page 12

DiLuzio also argues that Mayor DiFilippo conspired with others to “misuse their official

positions to plan, organize, and conduct the destruction of [his] building without due process.”

R. 161 at 41. DiFilippo denies any wrongdoing and insists that, at a minimum, he didn’t know

that what he was doing was wrong. Again, we lack jurisdiction to decide a disagreement with

DiLuzio’s evidence, Johnson, 515 U.S. at 319-20, and DiLuzio could prevail on his facts, as was

thoroughly explained above. But DiFilippo also contends that, even if he acted as alleged and

knew his actions were wrong, we must dismiss DiLuzio’s conspiracy claim under the

intracorporate conspiracy doctrine, which “provides that members of the same legal entity cannot

conspire with one another as long as their alleged acts were within the scope of their

employment.” Burgess v. Fischer, 735 F.3d 462, 483 (6th Cir. 2013). The district court

acknowledged the lack of controlling authority, inasmuch as the Sixth Circuit has never held that

the intracorporate conspiracy doctrine applies to municipal government officials in a § 1983

action and the district courts within our circuit are split on this question. R. 161 at 42-43. The

district court here determined that either the doctrine does not apply, citing Kinkus v. Village of

Yorkville, 476 F. Supp. 2d 829, 839 (S.D. Ohio 2007) (rev’d on other grounds, 289 F. App’x 86

(6th Cir. 2008)), or this case fell within the exception for defendants acting outside of their scope

of employment, citing Briner v. City of Ontario, No. 1:07-cv-129, 2010 WL 3982755, *14 (N.D.

Ohio, Oct. 7, 2010). DiFilippo argues that this court has held implicitly that the doctrine

necessarily applies because we remanded in Briner; but that argument ignores our specific

remand language: “We reverse the grant of summary judgment on this claim. We leave for the

district court, upon remand, to determine whether the intra-corporate conspiracy doctrine, first

raised by defendants on appeal, may be invoked as a defense, or whether, as the Briners claim,

the doctrine is inapplicable to § 1983 actions.” Briner v. City of Ontario, 370 F. App’x 682, 707

(6th Cir. 2010) (citations omitted, but citing Kinkus for the latter proposition). The district court

was correct in its assessment of the state of the law. See Tinney v. Richland Cnty., No. 1:14-cv-

703, 2015 WL 542415, *12 (N.D. Ohio, Feb. 10, 2015) (citing the lack of authority).

As for the exception, Mayor DiFilippo argues that if he was acting outside the scope of

his employment, then he was necessarily engaged in a “random and unauthorized” act to which

the Parratt doctrine must apply (thus defeating the due process claim). But DiFilippo confuses

his self-serving intent to obtain DiLuzio’s property, which was outside his scope of employment,

Nos. 14-3970/3971 DiLuzio v. Village of Yorkville, et al. Page 13

with his act of ordering the building demolished without predeprivation process, which was and

only could have been completed under the authority of his employment. That is, DiFilippo’s

exercise of his authority as Mayor to invoke Ohio Revised Code § 715.26(B) demonstrates that

he was not engaged in a “random and unauthorized” act, whereas the improper abuse of that

authority for personal gain or malicious intent was outside of the scope of his employment.

Thus, as the court held in Briner, 2010 WL 3982755 at *14, even if the intracorporate

conspiracy doctrine applies to municipal government officials in a § 1983 action (and we do not

here hold that it necessarily does), the doctrine does not apply in this case because the defendants

are accused of conspiring to wrongfully divest DiLuzio of his property, which would fall outside

the scope of their employment. These defendants cannot invoke this defense.

We also conclude that Mayor DiFilippo is not entitled to state law immunity under Ohio

Revised Code § 2744.03(A), which specifically excepts acts done “with malicious purpose, in

bad faith, or in a wanton or reckless manner,” § 2744.03(A)(6)(b). In Ohio, for purposes of this

provision, “‘[b]ad faith’ involves a dishonest purpose, conscious wrongdoing, the breach of a

known duty through some ulterior motive or ill will, as in the nature of fraud, or an actual intent

to mislead or deceive another.” Cook, 658 N.E.2d at 821. As the district court determined, a

jury could reasonably find from DiLuzio’s record evidence that DiFilippo acted in bad faith.

Fire Chief Kevin Klubert

DiLuzio says Fire Chief Kevin Klubert engaged in the same misconduct as, and

conspired with, Mayor DiFilippo in that he too knew that there was actually no dangerous

condition but desired to demolish the building and coerce DiLuzio to sell the property, so he lied

that an emergency dangerous condition necessitated quick action as a pretext for proceeding

immediately with the partial demolition, before DiLuzio could stop him via predeprivation

process. Chief Klubert raises the same factual and legal arguments raised by Mayor DiFilippo

and, given DiLuzio’s record-supported evidence and our determination of the governing law,

Chief Klubert’s claims for qualified and state law immunity fail for the same reasons.

Nos. 14-3970/3971 DiLuzio v. Village of Yorkville, et al. Page 14

Village of Yorkville

DiLuzio says the Village of Yorkville is responsible for the decisions of its policymakers

who hold “final and unreviewable” authority, Feliciano v. City of Cleveland, 988 F.2d 649, 655

(6th Cir. 1993), namely, Mayor DiFilippo and Fire Chief Klubert (and, presumably, Police Chief

Morelli). The Village acknowledges that DiFilippo and Klubert are final decision-makers

authorized to bind the Village, but argues that they committed no constitutional violation. Given

the foregoing determination that DiLuzio has sufficient record evidence to support a jury’s

finding of a constitutional violation, this claim fails at this summary judgment stage.

State Law Claims and Pendant Appellate Jurisdiction

DiLuzio charged DiFilippo, Klubert, and the Village with certain state law claims,

including wrongful demolition and state law civil conspiracy, and the district court denied

summary judgment on those claims. Even though these are not qualified immunity claims and,

therefore, not final for purposes of appellate jurisdiction, the defendants press these claims on

appeal and urge us to decide them under the authority of our pendant appellate jurisdiction.

“Pendent appellate jurisdiction may be exercised only when the immunity issues

absolutely cannot be resolved without addressing the nonappealable collateral issues.” Henricks

v. Pickaway Corr. Inst., 782 F.3d 744, 752 (6th Cir. 2015) (editorial marks omitted). As has

been demonstrated, that is not the case here, inasmuch as we have resolved all of the immunity

issues without consideration of any of these collateral state-law-claim issues. Consequently, we

do not have authority to extend pendant appellate jurisdiction to these issues.

III.

For the foregoing reasons, we AFFIRM the judgment of the district court.