Ludt v. Youngstown

[Cite as Ludt v. Youngstown, 2016-Ohio-8553.]

STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

JAMES B. LUDT )

)

PLAINTIFF-APPELLEE )

) CASE NO. 15 MA 0084

VS. )

) OPINION

CITY OF YOUNGSTOWN, et al. )

)

DEFENDANTS-APPELLANTS )

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common

Pleas of Mahoning County, Ohio

Consolidated Case No. 2013 CV 2548

JUDGMENT: Reversed.

APPEARANCES:

For Plaintiff-Appellee James Ludt, Pro-se

2129 East Midlothian Boulevard

Struthers, Ohio 44471

For Defendants-Appellants Attorney Megan Millich

Attorney Neil Schor

26 Market Street, Suite 1200

Youngstown, Ohio 44501-6077

JUDGES:

Hon. Mary DeGenaro

Hon. Gene Donofrio

Hon. Carol Ann Robb

Dated: December 29, 2016

[Cite as Ludt v. Youngstown, 2016-Ohio-8553.]

DeGENARO, J.

{¶1} Defendants-Appellants, City of Youngstown, et al, appeal the trial

court's judgment overruling their motion for summary judgment in part. As Appellants'

arguments are meritorious, the judgment of the trial court is reversed and modified so

as to grant Appellants summary judgment on all of Ludt's claims.

Facts and Procedural History

{¶2} This appeal involves three of four cases which were consolidated into

Case No. 2013 CV 2548 at the trial court level, and are described as follows by case

number.

13 CV 2549

{¶3} Ludt filed a complaint against the City of Youngstown, Mayor Jay

Williams, and Assistant Chief Enforcement Officer Tony DeNicholas, alleging multiple

claims. Appellants filed an answer denying all claims and asserting various

affirmative defenses. They also filed a motion for summary judgment which Ludt

opposed. On May 26, 2015, the trial court granted summary judgment to Appellants

on a majority of Ludt's claims. However, it denied summary judgment on Ludt's

Section 1983 Fourth Amendment claim and his due process claim.

14 CV 2590

{¶4} Ludt's complaint as amended against the City of Youngstown, Mayor

Charles Samarone, Prosecutor Dana Lantz, Police Officer Laura Fulmer, Assistant

Prosecutor Kathleen Thompson, and other unknown city employees, alleged,

pertinent to this appeal, "4th Amendment Violation Retaliation Thru Officials Position

of Office/Employment Since the Year 2004." Defendants filed a motion for summary

judgment and one month later Ludt filed a voluntary motion to dismiss this case citing

his lack of legal training and bipolar condition as grounds. On May 26, 2015, the trial

court overruled the motion to dismiss and granted summary judgment to Defendants

on all of Ludt's claims except for the retaliation claim.

13 CV 2550

{¶5} Ludt filed a complaint against the City of Youngstown, Mayor Jay

Williams, Arson Investigator Alvin Ware, Fireman Richard Russo, Battalion Chief

David Harris, and Police Officer Doug Pesa for Abuse of Process, Malicious

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Prosecution, False Arrest, Retaliation, and Section 1983 claim.

{¶6} Factually, on April 22, 2009, a fire occurred at Ludt's property located

at 1422 Midlothian Boulevard, Youngstown, Ohio. Ludt alleges City of Youngstown

firefighters Ware, Russo, and Harris and Officer Pesa embarrassed him and

trespassed onto his property. He contends a verbal altercation occurred after the fire

was extinguished. Ludt believes the fire was arson and not properly investigated.

Ludt was charged with obstruction of official business and misconduct at an

emergency. The latter charge was dismissed by the city prosecutor. Ludt waived his

preliminary hearing and consented to binding over to the grand jury the obstruction

charge. He was indicted on May 21, 2009 and ultimately found not guilty.

{¶7} Appellants filed an answer denying all claims and asserting various

affirmative defenses. Defendants filed a motion for summary judgment which Ludt

opposed. On May 26, 2015, the trial court granted summary judgment to Appellants

on all of Ludt's claims except for the Malicious Prosecution, False Arrest, and

Retaliation claims.

{¶8} When reviewing a trial court's decision to grant summary judgment, an

appellate court review is de novo. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-

4559, 833 N.E.2d 712, ¶ 8. Summary judgment will be granted when the movant

demonstrates, viewing the evidence most strongly in favor of the nonmovant, that

reasonable minds can find no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. Doe v. Shaffer, 90 Ohio St.3d 388, 390,

2000-Ohio-186, 738 N.E.2d 1243. A material fact is one that affects the outcome of

the suit under the applicable substantive law. Bank v. Miller, 7th Dist. No. 13 MA 119,

2015-Ohio-2325, ¶ 26.

13 CV 2549 - Fourth Amendment Claim

{¶9} In their first of six assignments of error, Appellants assert:

THE TRIAL COURT ERRED BY DENYING SUMMARY JUDGMENT

TO MAYOR JAY WILLIAMS AND TONY DENICHOLAS ON

APPELLEE'S 4th AMENDMENT CLAIM.

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{¶10} An action under Section 1983 alleges that an individual had been

deprived of a Constitutional right by a person acting under color of law. 42 U.S.C.

1983; Conley v. Shearer, 64 Ohio St.3d 284, 292, 1992-Ohio-133, 595 N.E.2d 862.

Federal and state courts have concurrent jurisdiction to remedy this deprivation.

Schwarz v. Board of Trustees of Ohio State Univ., 31 Ohio St.3d 267, 510 N.E.2d

806. "To establish a 1983 claim against an individual public official, two elements are

required: (1) the conduct complained of must be committed by a person acting under

color of state law, and (2) the conduct must deprive the plaintiff of a federally

protected right, either constitutional or statutory." Cook v. Cincinnati, 103 Ohio

App.3d 80, 85, 658 N.E.2d 814 (1st Dist.1995).

{¶11} The pertinent part of Section 1983, Title 42, U.S. Code states:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State * * *, subjects, or causes to be

subjected, any citizen of the United States * * * to the deprivation of any

rights, privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress * * *.

{¶12} Governmental officials may avail themselves of a qualified immunity

defense if they are sued under Section 1983. When determining whether qualified

immunity should be granted, the court applies a three-prong test:

(1) whether, based upon the applicable law, the facts viewed in

the light most favorable to the plaintiffs show that a constitutional

violation has occurred; (2) whether the violation involved a

clearly established constitutional right of which a reasonable

person would have known; and (3) whether the plaintiff has

offered sufficient evidence to indicate that what the official

allegedly did was objectively unreasonable in light of the clearly

established constitutional rights.

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Vlcek v. Chodkowski, 2015-Ohio-1943, 34 N.E.3d 446, ¶ 20 (2d Dist.) citing

Radvansky v. City of Olmsted Falls, 395 F.3d 291, 302 (6th Cir.2005).

{¶13} Once qualified immunity is raised, it is the plaintiff's burden of proof to

establish that the defendants are not entitled to qualified immunity. Cook, supra, at

85-86.

{¶14} Although Ludt made multiple allegations against Williams, Ludt never

alleged that Williams violated his Fourth Amendment rights depriving him of his

personal property. Thus, we need not consider whether Williams is protected by

qualified immunity. Even if we were to consider it, Appellants asserted the defense,

and Ludt asserted nothing in response and as such did not meet his burden to

demonstrate Williams was not entitled to qualified immunity. Cook supra.

{¶15} Regarding DeNicholas, Ludt alleged, and Appellants admitted in their

motion for summary judgment, that DeNicholas was employed and acting in his

capacity as a Youngstown zoning officer when he briefly took Ludt's video camera

but quickly returned it. They further asserted the administration of a zoning

department is a governmental function and entitled to immunity. As Appellants

carried the initial burden of alleging facts demonstrating DeNicholas was acting within

the scope of his authority during the incident, the burden shifts to Ludt to establish

that DeNicholas' conduct violated a clearly established right that any official in his

position would have understood he or she was under an affirmative duty to refrain

from such conduct. Cook, supra.

{¶16} In his opposition to summary judgment Ludt contended DeNicholas was

"acting outside his/her Authority" and consequently has no qualified immunity; he

asserts nothing else in rebuttal. This contradicts the allegations in Ludt's complaint

that DeNicholas took his camera while working for the city.

{¶17} In sum, summary judgment should have been granted to Appellants on

Ludt's Fourth Amendment claim against Williams and DeNicholas. Accordingly

Appellants' first assignment of error is meritorious.

13 CV 2549 - Due Process Claim

{¶18} In their second of six assignments of error, Appellants assert:

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THE TRIAL COURT ERRED BY DENYING SUMMARY JUDGMENT

TO THE CITY OF YOUNGSTOWN, MAYOR JAY WILLIAMS, AND

TONY DENICHOLAS ON APPELLEE'S DUE PROCESS CLAIM.

{¶19} Ludt makes no allegations in either his complaint or in opposition to

summary judgment that Jay Williams and the City violated his due process rights.

Thus, we need not consider whether Williams and the City are protected by qualified

immunity. Even if we were to consider it, Appellants asserted the defense and Ludt

asserted nothing in response and as such did not meet his burden to demonstrate

Williams and the City were not entitled to qualified immunity. Cook, supra.

{¶20} Regarding DeNicholas, Ludt alleged his due process rights were

violated when DeNicholas took his camera and briefly withheld it before returning it to

him. It's unclear if Ludt is arguing that his procedural or substantive due process

rights were violated. Both will be discussed in turn.

The Due Process Clause of the Fourteenth Amendment states that no

state shall 'deprive any person of life, liberty, or property without due

process of law.' In order to state a claim under 42 U.S.C.1983 for a

procedural due process violation, a plaintiff must allege that (1) he or

she has a right or interest that is entitled to due process protection, and

(2) that he or she was deprived of that right without a meaningful

opportunity to be heard.

Rodefer v. McCarthy, 2015-Ohio-3052, ¶ 50, 36 N.E.3d 221 (2d Dist.).

{¶21} Ludt made no claim or asserted any facts that he had a right or interest

that was entitled to due process and that he was deprived of that right without a

hearing. Accordingly a procedural due process argument is meritless.

{¶22} "[S]ubstantive rights may be enforced via Section 1983." Peoples

Rights Org., Inc. v. Montgomery, 142 Ohio App.3d 443, 488, 756 N.E.2d 127 (12th

Dist. 2001). Many of the specific protections in the Bill of Rights are incorporated into

the Due Process Clause, the infringement of which may be challenged via litigation.

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Id. "The Due Process Clause contains a substantive component that bars arbitrary,

wrongful government actions 'regardless of the fairness of the procedures used to

implement them.'" Id., quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662,

88 L.Ed.2d 662 (1986). "Substantive due process thus protects both explicit rights

and other fundamental rights." Id. The Twelfth District elaborated:

The protection of substantive due process exists to ensure " 'the right to

be free [from] state intrusions into [the] realms of personal privacy and

bodily security through means so brutal, demeaning, and harmful as

literally to shock the conscience.' " Lillard v. Shelby Cty. Bd. of Edn.

(C.A.6, 1996), 76 F.3d 716, 725. * * *

Substantive due process protections have been afforded only in certain

fundamental realms, relating to "marriage, family, procreation, and the

right to bodily integrity." Albright, 510 U.S. at 272, 114 S.Ct. at 812, 127

L.Ed.2d at 122.

Montgomery, 142 Ohio App.3d at 491.

{¶23} Ludt has failed to provide a substantive due process ground as the

basis to sustain this lawsuit; his claim that DeNicholas took his camera is not one of

the recognized protected grounds.

{¶24} In sum, the trial court should have granted summary judgment to the

Appellants on Ludt's due process claim against the city, Jay Williams, and Tony

DeNicholas. Accordingly, Appellants' second assignment of error is meritorious.

13 CV 2550 - Malicious Prosecution

{¶25} In their third of six assignments of error, Appellants assert:

THE TRIAL COURT ERRED BY DENYING SUMMARY JUDGMENT

TO MAYOR JAY WILLIAMS, ALVIN WARE, RICHARD RUSSO, DAVID

HARRIS, AND DOUG PESA ON APPELLEE'S MALICIOUS

PROSECUTION CLAIM.

-7-

{¶26} A malicious prosecution claim entails the following: "(1) malicious

institution of prior proceedings against the plaintiff by defendant, (2) lack of probable

cause for the filing of the prior lawsuit, (3) termination of the prior proceedings in

plaintiff's favor, and (4) seizure of plaintiff's person or property during the course of

the prior proceedings." (Citations omitted.) Crawford v. Euclid Natl. Bank, 19 Ohio

St.3d 135, 139, 483 N.E.2d 1168 (1985). A grand jury indictment in a criminal

prosecution creates a rebuttable presumption that there was probable cause to

prosecute, unless those proceedings received perjured testimony or were otherwise

significantly irregular. See Adamson v. May Co., 8 Ohio App.3d 266, 456 N.E.2d

1212 (8th Dist.1982), syllabus.

{¶27} Appellants asserted in their summary judgment motion that Ludt failed

to establish the second element, lack of probable cause, because he waived his

preliminary hearing and was indicted by the grand jury, attaching a copy of the waiver

and the indictment. Ludt failed to provide any evidence rebutting that assertion, and

did not address this argument in his opposition to summary judgment.

{¶28} Based on the evidence presented, reasonable minds could find no

genuine issue of material fact as to whether probable cause was established.

Accordingly, the trial court should have granted Appellants' summary judgment on

Ludt's malicious prosecution claim, and their third assignment of error is meritorious.

13 CV 2550 - False Arrest Claim

{¶29} In their fourth of six assignments of error, Appellants assert:

THE TRIAL COURT ERRED BY DENYING SUMMARY JUDGMENT

TO MAYOR JAY WILLIAMS, ALVIN WARE, RICHARD RUSSO, DAVID

HARRIS, AND DOUG PESA ON APPELLEE'S FALSE ARREST

CLAIM.

{¶30} The Fourth District held regarding false arrest and Section 1983 claims:

[T]he plaintiff asserts that law enforcement officers deprived him or her

of the Fourth Amendment right to be free from unreasonable seizures of

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the person. "[A] warrantless arrest by a law officer is reasonable under

the Fourth Amendment where there is probable cause to believe that a

criminal offense has been or is being committed." Devenpeck v. Alford,

543 U.S. 146, 152, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004). Thus, for a

wrongful arrest claim to succeed under 42 U.S.C.1983, a plaintiff must

prove that the police lacked probable cause to arrest. Miller v. Sanilac

Cty., 606 F.3d 240, 250 (6th Cir.2010); Logsdon v. Hains, 492 F.3d

334, 341 (6th Cir.2007).

Bodager v. Campbell, 4th Dist. No. 12CA828, 2013-Ohio-4650, ¶ 35.

{¶31} Ludt's false arrest claim is based on his allegation that the arrest

warrant issued for him was based upon "false testimony that was recanted at trial."

He never attached any evidentiary materials to support this contention. Appellants

again asserted in the summary judgment motion that the grand jury indictment in the

criminal prosecution created a rebuttable presumption of probable cause. Ludt did

not address this argument in response. The trial court should have granted summary

judgment to Williams, Ware, Russo, Harris, and Pesa on Ludt's false arrest claim.

Accordingly, Appellants' fourth assignment of error is meritorious.

13 CV 2550 & 14 CV 2590 - Retaliation Claims

{¶32} Appellants' fifth and six assignments of error are interrelated and will be

discussed together for clarity of analysis:

THE TRIAL COURT ERRED BY DENYING SUMMARY JUDGMENT

TO CITY OF YOUNGSTOWN, MAYOR JAY WILLIAMS, ALVIN WARE,

RICHARD RUSSO, DAVID HARRIS, AND DOUG PESA ON

APPELLEE'S RETALIATION CLAIM.

THE TRIAL COURT ERRED BY DENYING SUMMARY JUDGMENT

TO THE CITY OF YOUNGSTOWN, MAYOR CHARLES

SAMMARONE, DANA LANTZ, LAURA FULLMER, AND KATHLEEN

THOMPSON ON APPELLEE'S RETALIATION CLAIM.

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{¶33} The Sixth Circuit discussed the remedy for retaliation claims:

It is well established that government actions, which standing

alone do not violate the Constitution, may nonetheless be

constitutional torts if motivated in substantial part by a desire to

punish an individual for exercise of a constitutional right. See,

e.g., Crawford–El v. Britton, 523 U.S. 574, 118 S.Ct. 1584, 140

L.Ed.2d 759 (misdirection of personal belongings may state a

claim of retaliation for exercise of First Amendment rights); Board

of County Comm'rs, Wabaunsee County v. Umbehr, 518 U.S.

668, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996) (nonrenewal of

plaintiff's government contract in retaliation for his exercise of

free speech is actionable); Perry v. Sindermann, 408 U.S. 593,

597, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) ("[I]f the government

could deny a benefit to a person because of his constitutionally

protected speech or associations, his exercise of those freedoms

would in effect be penalized and inhibited."); Valot v. Southeast

Local Sch. Dist. Bd. of Educ., 107 F.3d 1220, 1225 (6th Cir.)

("[A] claim of retaliation for exercise of the constitutional right of

access is cognizable under § 1983."), cert. denied, 522 U.S. 861,

118 S.Ct. 164, 139 L.Ed.2d 108 (1997); Zilich v. Longo, 34 F.3d

359, 365 (6th Cir.1994) ("The law is well settled in this Circuit

that retaliation under color of law for the exercise of First

Amendment rights is unconstitutional ...."), cert. denied, 514 U.S.

1036, 115 S.Ct. 1400, 131 L.Ed.2d 288 (1995). Therefore, for

these wrongs, too, § 1983 provides a remedy.

* * * * * *

Retaliation claims arise in any number of contexts. The essence

of such a claim is that the plaintiff engaged in conduct protected

by the Constitution or by statute, the defendant took an adverse

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action against the plaintiff, and this adverse action was taken (at

least in part) because of the protected conduct. There are

variations on this theme in bodies of statutory law that allow

retaliation claims (e.g., ADA, Title VII, NLRA, etc.), but the

essential framework remains the same. See, e.g., Barnett v.

Department of Veterans Affairs, 153 F.3d 338, 343 (6th Cir.1998)

(Title VII retaliation claim); Walborn v. Erie County Care Facility,

150 F.3d 584, 588–89 (6th Cir.1998) (ADA retaliation claim);

Wrenn v. Gould, 808 F.2d 493, 500–01 (6th Cir.1987) (Title VII

retaliation claim).

Thaddeus-X v. Blatter, 175 F.3d 378, 386-387 (6th Cir. 1999)

{¶34} Regarding Ludt's claims against Youngstown, Williams, Ware, Russo,

Harris, and Pesa, he does not allege any specific speech on his part that resulted in

him being charged with obstruction of official business. He alleged that the

Appellants criminally prosecuted him without following or applying normal city

procedures of investigation before charging him. Ludt alleged nothing correlating free

or protected speech with the accompanying charges. Thus, the complaint does not

adequately set forth a retaliation claim in the first instance.

{¶35} Moreover, Appellants' summary judgment motion asserted this

deficiency yet Ludt did not address it in his opposition to summary judgment. As

such, the trial court should have granted Youngstown, Williams, Ware, Russo, Harris,

and Pesa summary judgment on this retaliation claim.

{¶36} Regarding Ludt's claim against, Youngstown, Sammarone, Lantz,

Fulmer, and Thompson, he does allege several specific instances of graffiti on his

property and the lawsuits the City filed against him that followed. These lawsuits are

based on defacement ordinances and zoning violations. Ludt was charged for zoning

violations as opposed to being charged for exercising his free speech rights. Ludt's

retaliation claim is deficient and inadequately sets forth a cause of action because it

merely states that the Appellants criminally prosecuted him without following or

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applying normal city procedures of investigation.

{¶37} In light of this deficiency, we need not consider whether Youngstown,

Williams, Ware, Russo, Harris, Pesa, Sammarone, Lantz, Fulmer, and Thompson are

protected by qualified immunity. Even if we were to consider it, Appellants asserted

the defense and Ludt asserted nothing in response and as such did not meet the

burden and demonstrate Appellants were not entitled to qualified immunity. Cook

supra.

{¶38} The trial court should have granted summary judgment in favor of the

Appellants on both of Ludt's retaliation claims. Accordingly, Appellants' fifth and sixth

assignments of error are meritorious.

{¶39} In sum, all six of Appellants' assignments of error are meritorious. Ludt

has inadequately pled the causes of action he wishes to sustain. Moreover, Ludt has

failed to rebut Appellants' assertion of qualified immunity. Accordingly, the judgments

of the trial court in favor of Ludt are reversed, and modified so that summary

judgment is granted in favor of Appellants.

Donofrio, P. J., concurs.

Robb, J., concurs.