Petition for Writ of Certiorari — Kalvin Schanz, Petitioner v. City of Otsego, Michigan, et al.
Supreme Court briefJul 15, 2024
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No. 24In the
Supreme Court of the United States
KALVIN SCHANZ,
Petitioner,
v.
CITY OF OTSEGO, MICHIGAN, AARON MITCHELL,
DAVE RAYMAN, AND BRET REITKERK,
Respondents.
On Petition for a Writ of Certiorari to the
United States Court of A ppeals for the Sixth Circuit
PETITION FOR WRIT OF CERTIORARI
Robert L. Levi
Counsel of Record
Robert L. Levi, P.C.
4125 Cumberland Court
Commerce Township, MI 48390
(313) 910-0337
robert@robertlevilaw.com
Counsel for Petitioner
July 15, 2024
116931
A
(800) 274-3321 • (800) 359-6859
i
QUESTION PRESENTED FOR REVIEW
1.
Under the Fair Housing Act, 42 U.S.C. § 3617,
when a plaintiff claims that a defendant has
intimidated or interfered with him “on account of
his having aided or encouraged any other person
in the exercise or enjoyment” of FHA rights, may
a court require that the alleged aid provided is of
a certain degree, or will any amount of aid suffice
to trigger the protections of the statute?
ii
PARTIES TO THE PROCEEDING
IN THE COURT WHOSE JUDGMENT
IS SOUGHT TO BE REVIEWED
Kalvin Schanz, Plaintiff-Petitioner.
City Of Otsego, Michigan, Aaron Mitchell, Dave
Rayman and Bret Reitkerk, Defendants-Respondents.
iii
DISCLOSURE OF CORPORATE AFFILIATIONS
AND FINANCIAL INTEREST
Plaintiff Kalvin Schanz makes the following disclosure:
1.
Is said party a subsidiary or affiliate of a publicly
owned corporation? If yes, list below the identity
of the parent corporation or affiliate and the
relationship between it and the named party:
No.
2.
No.
Is there a publicly owned corporation, not a
party to the appeal, that has a financial interest
in the outcome? If yes, list the identity of such
corporation and the nature of the financial
interest:
iv
RELATED PROCEEDINGS IN FEDERAL TRIAL
AND APPELLATE COURTS
1.
United States District Court, Western District
of Michigan
No. 21-cv-1028
KALVIN SCHANZ,
Plaintiff-Appellant,
v.
CITY OF OSTEGO, MI, a municipal corporation;
BRANDON WEBER, individually and in
his official capacity; AARON MITCHELL,
individually and in his official capacity; DAVE
RAYMAN, individually and in his official
capacity; BRET REITKIRK, individually
and in his official capacity; BRAD MISNER,
individually and in his official capacity,
Defendants-Appellees.
Date of Judgment: July 14, 2023
v
2.
United States Court of Appeals for the Sixth
Circuit
No. 23-1705
KALVIN SCHANZ,
Plaintiff-Appellant,
v.
CITY OF OTSEGO, MICHIGAN, AARON
MITCHELL, DAVE RAYMAN, and BRET
REITKIRK,
Defendants-Appellees,
and
BRANDON WEBER and BRAD MISNER,
Defendants.
Date of Judgment: April 15, 2024
vi
TABLE OF CONTENTS
Page
QUESTION PRESENTED FOR REVIEW . . . . . . . . . i
PARTIES TO THE PROCEEDING IN THE
COURT WHOSE JUDGMENT IS SOUGHT
TO BE REVIEWED . . . . . . . . . . . . . . . . . . . . . . . . . . ii
DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST . . . . . . . iii
RELATED PROCEEDINGS IN FEDERAL
TRIAL AND APPELLATE COURTS . . . . . . . . . . . iv
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . vi
TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . viii
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . ix
CI TAT IONS OF T H E OF FICI A L A N D
UNOFFICIAL REPORTS OF THE OPINIONS
AND ORDERS ENTERED IN THE CASE . . . . . . 1
JURISDICTION OF THE UNITED STATES
SUPREME COURT . . . . . . . . . . . . . . . . . . . . . . . . . . .1
STATUTE INVOLVED IN THIS CASE . . . . . . . . . . . 1
CONCISE STATEMENT OF THE CASE . . . . . . . . . . 2
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . 2
vii
Table of Contents
Page
The Complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
The Trial Court’s Decision . . . . . . . . . . . . . . . . . . . . . . 9
The Court of Appeals’ Decision . . . . . . . . . . . . . . . . . 10
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
I.
THE COURT OF APPEALS’ DECISION
AFFIRMING THE DISMISSAL OF THE
FHA CLAIM CONFLICTS WITH THE
HOLDING OF MULDROW V. CITY OF ST.
LOUIS, MISSOURI, 144 S. Ct. 967 (2024) . . . . 11
A. In Muldrow v. City of St. Louis, the
Supreme Court held that, in absence
of a statutory requirement, a plaintiff
in an employment discrimination
case need show only that she suffered
some harm, not “significant harm”
from the discriminatory act . . . . . . . . . . . . 11
B. The Court of Appeals’ decision conflicts
with Muldrow, because, instead of
determining whether Schanz aided the
JBS employees to any degree, the Court
of Appeals required Schanz to have
provided aid that the Court considered
significant . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
viii
Table of Contents
Page
APPENDIX
APPENDIX A — OPINION OF THE UNITED
STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT, FILED APRIL 15, 2024 . . . . . . 1a
APPENDIX B — OPINION AND ORDER OF
THE UNITED STATES DISTRICT COURT
FOR T H E W EST ERN DIST RICT OF
MICHIGAN, SOUTHERN DIVISION, FILED
JULY 14, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18a
ix
TABLE OF CITED AUTHORITIES
Page
CASES:
Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . 19, 21
Geraci v. Union Square Condo Ass’n,
891 F.3d 274 (7th Cir. 2018) . . . . . . . . . . . . . . . . . . . . 19
Hatfield v. Cottages on 78th Cmty Ass’n,
No. 21-4035, 2022 WL 2452379
(10th Cir., July 6, 2022) . . . . . . . . . . . . . . . . . . . . . . . . 19
Hollis v. Chestnut Bend Homeowners Ass’n,
760 F.3d 531 (6th Cir. 2014) . . . . . . . . . . . . . . . . . . . . 12
Huntington Branch, NAACP v.
Town of Huntington,
844 F.2d 926 (2d Cir. 1988), aff’d in part sub nom.
Town of Huntington, NY v. Huntington Branch,
NAACP, 488 U.S. 15 (1988) . . . . . . . . . . . . . . . . . . . . 12
Linkletter v. Western & Southern Financial
Group, Inc.,
851 F.3d 632 (2017) . . . . . . . . . . . . . . . 14, 15, 17, 18, 21
Muldrow v. City of St. Louis, Missouri,
144 S. Ct. 967 (2024) . . . . . . . . . 2, 11, 12, 13, 14, 19, 21
Schanz v. City of Otsego, Michigan,
No. 23-1705, 2024 WL 1622465
(6th Cir., April 15, 2024) . . . . . . . . . . . . . . . . . . . . . . . . 1
x
Cited Authorities
Page
Smith v. Stechel,
510 F.2d 1162 (9th Cir. 1975) . . . . . . . . . . . . . . . . . . . 19
Texas Dept of Hous & Cmty Affairs v.
Inclusive Communities Project, Inc.,
576 U.S. 519 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
United States v. Gilbert,
813 F.2d 1523 (9th Cir. 1987) . . . . . . . . . . . . . . . . 18, 19
STATUTES AND OTHER AUTHORITIES:
U.S. Const. art. III, § 2, cl. 2 . . . . . . . . . . . . . . . . . . . . . . . 1
28 U.S.C. § 1254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
28 U.S.C. § 1343 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9
42 U.S.C. § 3602(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
42 U.S.C. § 3603 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
42 U.S.C. § 3604 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 8
xi
Cited Authorities
Page
42 U.S.C. § 3605 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
42 U.S.C. § 3606 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
42 U.S.C. § 3617 . . . . . . . . . . . . . . . . . 1, 8, 9, 10, 13, 19, 21
42 U.S.C. § 3631(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
1
CITATIONS OF THE OFFICIAL AND
UNOFFICIAL REPORTS OF THE OPINIONS
AND ORDERS ENTERED IN THE CASE
Schanz v. City of Otsego, No. 1:21-CV-1028, 2023 WL
11081615 (W.D. Mich., July 14, 2023), sub nom. Schanz v.
City of Otsego, Michigan, No. 23-1705, 2024 WL 1622465
(6th Cir., April 15, 2024)
Schanz v. City of Otsego, Michigan, No. 23-1705, 2024
WL 1622465 (6th Cir., April 15, 2024)
JURISDICTION OF THE UNITED STATES
SUPREME COURT
The United States Court of Appeals for the Sixth
Circuit entered Judgment in this case on April 14, 2024.
1a-15a.
This Court has appellate jurisdiction under U.S.
Const. Art. III § 2, cl. 2 to review this case by petition for
writ of certiorari under 28 U.S.C. § 1254.
STATUTE INVOLVED IN THIS CASE
It shall be unlawful to coerce, intimidate,
threaten, or interfere with any person in the
exercise or enjoyment of, or on account of his
having exercised or enjoyed, or on account of his
having aided or encouraged any other person in
the exercise or enjoyment of, any right granted
or protected by section 3603, 3604, 3605, or
3606 of this title.
42 U.S.C. § 3617.
2
CONCISE STATEMENT OF THE CASE
The Petitioner asks this Court to review the decision of
the United States Court of Appeals for the Sixth Circuit.
1a-15a.
The Court of Appeals’ decision conflicts with the
decision of the United States Supreme Court in Muldrow
v. City of St. Louis, Missouri, 144 S. Ct. 967 (2024).
Accordingly, for the following reasons Plaintiff Kalvin
Schanz seeks a writ of certiorari for this Court to review
the decision of the Court of Appeals.
STATEMENT OF FACTS
In 2013, Plaintiff Kalvin Schanz (Schanz) purchased a
former elementary school (the school) in Otsego, Michigan.
In 2015, Schanz read that JBS Foods, a local meatpacking plant in Plainwell, Michigan, had a multitude of
employees needing local housing. Otsego is next door to
Plainwell and housing in Otsego would be local housing
for the employees.
Schanz wanted to convert the former school to
dormitory-style housing for a multitude of the JBS
employees. The national origins of the employees were
Africa, the Middle East, and Asia. Some were black, and
they were all religious refugees. Dep Schanz 10-3-22,
ECF No. 112-2, PageID.1468-16; Dep Winn, ECF No.
112-3, PageID.150722; Dep Zevalkink, ECF No. 112-4,
PageID.151310.
Defendant Dave Ray man was the Director of
Development for the City of Otsego. Schanz believed that
3
Rayman was “the representative of the City, so anything
that had to do with any development, you would have to
ask him for permission.” Dep Schanz 10-3-22, ECF No.
112-2, PageID.1466, 1467.
But, starting in 2015, Rayman voiced his racist
objections to the JBS employees living at the school.
Rayman told Schanz, “That ain’t happening. Get real.
You’ll get run out of town.” Dep Schanz 10-3-22, ECF No.
112-2, PageID.1490-1491.
In 2017, Scot Reitenour expressed interest in
converting the school to apartments and renting them to
the JBS workers. In summer 2017, Schanz had Reitenour
set up a meeting at the school with Schanz and certain
JBS executives, and Dave Rayman. Schanz had Reitenour
set up the meeting instead of doing it himself, because
Schanz feared Rayman after Rayman had told Schanz,
“it ain’t happening.” Dep Schanz 10-3-22, ECF No. 112-2,
PageID.1489-1492.
The company executives toured the school But, when
Rayman and Schanz were apart from the JBS executives
and Reitenour, Rayman again told Schanz: “Ain’t ever
going to happen here. The city is never going to go for
that.” Dep. Struyk, ECF No. 112-5, PageID.1517.
Later, when neither the JBS officials nor Reitenour
showed interest converting the school to apartments,
Schanz independently moved forward with a new housing
design that he planned to market directly to the employees
– dormitory style housing, like a college dormitory. Dep
Schanz, ECF No. 112-6, PageID.1525 (deposition p. 21-22;
Appellant’s Brief, Document 19. 40-41.)
4
Schanz consulted with Brian Winn, a contractor who
was the former chaplain for the JBS workers and then
supervisor of Otsego Township. From his service as
chaplain, Winn was very familiar with the workers’ dire
need for affordable local housing. At Schanz’s request,
Winn called the JBS personnel office and learned that the
workers were still desperate for local housing. JBS was
hiring 10 to 20 immigrants per week. There was a crunch
for local housing for those new employees, most of who
were living in Lansing or Grand Rapids (some in motels)
and reimbursing JBS from their wages for housing and
travel costs. Dep Winn, ECF No. 121-1, PageID.1750; Dep
Zevalkink, ECF No. 121-5, PageID.1826-1827.
Creating the dormitory was relatively inexpensive
and simple. Winn, Schanz’s general contractor, prepared
an estimate that labor and materials would cost Schanz
$1, 20 0,0 0 0. A lterations required only building a
community kitchen, dining hall, showers and restrooms.
Dep Winn, ECF No. 121-1, PageID.1747-1749; Estimate,
ECF No. 121-7, PageID.1868. Schanz planned to rent each
classroom (bedrooms) to four workers and would provide
furniture. This design avoided the much larger capital
investment required to convert the school to apartments.
Schanz had the financial ability to fund the project by
himself. Dep. Schanz, ECF No. 112-6, PageID.1537-1538.
Over the years until March 2021, Schanz approached
Rayman and City Manager Aaron Mitchell every month
or two and asked about using the school as housing for the
JBS employees. Schanz advocated for the JBS employees
and prodded Rayman and Mitchell to withdraw their
objections to the housing for the JBS employees.
5
You know, I was prodding them a little after
I knew that it offended them that some brown
folks would move in there, I was offended,
so I poked them a little. Even when I took
-- I will not use the word legitimate because
legitimately them people should be living there
today, but it wouldn’t matter what person called
or what they called me about, it’s like just move
the Marshall Islanders in there, who’s it going
to hurt.
Dep. Schanz, ECF No. 112-2, PageID.1493, deposition
page 115 (emphasis added.)
But Rayman and Mitchell gave the same response:
“[T]hey ain’t living here, are you crazy…you’d get run out
of town for that one, we ain’t got time for this,” or “It ain’t
happening. The town’s people would hang you. Imagine
how pissed-off the community would be if you did that.
We would rather destroy the school than provide housing
to those people.” Dep Schanz 10/3/22, ECF No. 112-2,
PageID.1491; First Am. Verified Complaint, ECF No. 3,
PageID.101. Mitchell and Rayman “pretty much convinced
me [Schanz] that if I tried they would run me out of town.”
Dep Schanz, 1/23/23, ECF No. 112-6, PageID.1538-1539.
In 2017, Brian Winn was the supervisor for Otsego
Township and was a private construction contractor
whom Schanz wanted to renovate the school for the JBS
employees. After Dave Rayman had intimidated Schanz,
Brian Winn approached Rayman and asked why Rayman
would not support the housing project. Rayman told Winn:
“There’s never -- the city will never allow you and Kal to
run a refugee camp out of that school.” Dep Winn, ECF
121-1, PageID.1753.
6
Eventually, Rayman’s threats included demolishing
the school building if Schanz kept asking about housing
the JBS employees. “[S]everal years these guys have
warned me and it got to the point, sir, that when Dave was
around and I would ever mention, he’d say the building
will have to come down, this building will have to come
down, it will have to come down, you know... It just like
made me very nervous.” Schanz Dep 10/3/22, ECF No.
112-2, PageID.1494.
Thus, the racist attitude and threats from Mitchell
and Rayman, to run Schanz out of down and to demolish
the school, dissuaded Schanz from filing an application for
rezoning or for permits to convert the school to housing
for the JBS employees. Id., ECF No. 112-2, PageID.1466;
ECF No. 112-2, PageID.1494-1495; Dep Schanz 1-2323, ECF No. 112-6, PageID.1538; First Am (verified)
Complaint, ECF No. 3, PageID.101.
In 2020, there were some instances when several
trespassers breached the school building. Defendant
Officer Weber investigated those incidents, but Weber
did not voice any concerns about building code violations
or safety issues at the school. Dep Weber, ECF No. 112-7,
PageID.1545-1547.
But on July 14, 2020, Weber sent an email to City
Manager Mitchell, Police Chief Misner, and Building
Official Bret ReitKerk, complaining that because Schanz
had left windows open, persons had breached the building
and that responding to the intrusions was a waste of police
resources. Email message series, 7/14/20 and 7/24/20,
ECF No. 112-8, PageID.1559; Dep Weber, ECF No. 112-7,
PageID.1546-1548.
7
But the City Building Official did not believe the
building was an attractive nuisance and he refused to
issue a building code citation. Dep. Reitkerk, 2 ECF No.
112-9, PageID.1568-1568.
Meanwhile, Schanz unsuccessfully tried to develop
the school in other ways throughout the years. But finally,
in 2020 Schanz told Rayman, “I am going to bring in the
JBS employees as tenants.” Declaration of Kalvin Schanz,
ECF No. 121-2, PageID.1786-1787.
On that same day in 2020, Mitchell emailed the other
Defendants stating that, without any other prospects
for developing the school, they had to deal with Schanz.
Dep Mitchell, ECF No. 112-10, PageID.1591; Email from
Mitchell 7/24/20, ECF No. 112-8, PageID.1559.
Shortly thereafter, Mitchell instructed Officer Weber
to enter the school the next time he performed perimeter
checks and go in and photograph any conditions that he
considered health or safety violations.
On July 28, 2020, Weber entered the school without
permission from Schanz, without a search warrant,
and without contacting ReitKerk, the Building Official.
Weber took pictures of alleged code violations and wrote
a report which he conveyed to Mitchell and to ReitKerk.
Dep. Weber, ECF No. 112-7, PageID.1549-1550; Weber’s
Report, ECF No. 112-11, PageID.1596.
After a suggestion from Mitchell, ReitKerk issued a
demolition notice for the school. Dep ReitKerk, ECF No.
112-9, PageID.1570.
8
Schanz hired Henry Green, former Executive Director
of the State of Michigan’s Bureau of Construction Codes,
to inspect the building. Green issued a report verifying
that the building did not warrant demolition. Declaration
of Henry Green, ECF No. 121-9, PageID.1871-1875.
ReitKerk finally inspected the school in September
2022. Shortly thereafter, the city withdrew the demolition
notice. Dep Schanz 10/3/22, ECF No. 112-2, PageID.1483,
1487; Dep ReitKerk, ECF No. 112-9, PageID.1576
and Letter from Kirk Scharphorn, ECF No. 112-15,
PageID.1621.
The Complaint
On December 6, 2021, in the United States District
Court for the Western District of Michigan, Schanz filed
his Complaint against the Defendants. Schanz sued the
City of Otsego, Aaron Mitchell, and Dave Rayman for
violation of 42 U.S.C. § 3617 for coercing, intimidating,
threatening and, or interfering with Schanz in the exercise
of the fair housing rights, granted and protected under 42
U.S.C. § 3604. Complaint and Jury Demand, ECF No.
1, PageID.1-31; First Amended Complaint, ECF No. 3,
PageID.94-126.
Schanz sued Bret ReitKerk under 42 U.S.C. § 1983
for depriving Schanz of procedural and substantive due
process in connection with the attempted demolition of
the building. Id.
Schanz sued Brandon Weber, Mitchell, Brad Misner,
and the City under 42 U.S.C. § 1983 for violating Schanz’s
4th Amendment rights by illegally entering the building
without a warrant. Id.
9
The United States District Court for the Western
District of Michigan had jurisdiction of this case under
28 U.S.C. §§ 1331 and 1343, because federal questions
are presented in this action under the United States
Constitution, 42 U.S.C. § 3617, and 42 U.S.C. § 1983.
The Trial Court’s Decision
On July 14, 2023, the trial judge granted the
Defendants’ dispositive motion and, ruling that there was
no genuine issue of material fact, dismissed all counts in
the Complaint. 18a-51a.
The judge dismissed the claims under FHA section
3617. 24a-31a. First, the judge found that the building was
not a dwelling as defined by 42 U.S.C. § 3602(b). The judge
stated that Schanz was not a “real developer” because he
did not have “real skin in the game.” 24a-29a (footnote 4).
On that basis, the judge ruled that the building was not a
dwelling because it was not “intended for occupancy as, a
residence by one or more families…” The judge ruled that,
because the building was not a dwelling, Schanz lacked
standing under Article III. 29a.
Second, the judge also dismissed the FHA count
because he ruled that Schanz had not encouraged or aided
any protected party. The judge found that Schanz had not
contacted any individual JBS workers directly and there
was no evidence that any workers needed local housing.
29a-31a.
The trial judge also dismissed the other claims.
32a-51a.
10
The Court of Appeals’ Decision
On July 31, 2023, Schanz appealed the decision of
the district court to the United States Court of Appeals
for the Sixth Circuit. Notice of Appeal, ECF No. 136,
PageID.2221. Schanz appealed the dismissal of the FHA
claim against Rayman, Mitchell, and the City of Otsego.
Schanz also appealed the dismissal of the procedural due
process claim against ReitKerk. Appellant’s Principal
Brief, Document 19, pages 21-41 and 45-52. Schanz also
asked for a different judge upon remand. Id., 52-56. The
Court of Appeals had jurisdiction of this case under 28
U.S.C. § 1291.
The panel of the Court of Appeals affirmed the
dismissal of the FHA claim under 42 U.S.C. § 3617
holding that Schanz had not “aided” the JBS employees
as required by the statute.1 The Court claimed that
Schanz had not aided the employees because he had not
spoken with any employee, there was no evidence the
employees were aware of his efforts, he had no contact
with JBS management after they expressed no interest
in sponsoring Schanz’s project, and Schanz never filed
any application for a zoning change or for approval of a
site plan. 8a-13a.
The Court of Appeals also affirmed the dismissal of
the procedural due process claim. 14a-15a.
1. 42 U.S.C. § 3617 prohibits intimidation or interference
“with any person ... on account of his having aided or encouraged
any other person in the exercise or enjoyment” of FHA rights. 42
U.S.C. § 3617 (emphasis added).
11
ARGUMENT
I.
T H E C OU R T OF A PPE A L S ’ DE C I S ION
AFFIRMING THE DISMISSAL OF THE FHA
CLAIM CONFLICTS WITH THE HOLDING OF
MULDROW V. CITY OF ST LOUIS, MISSOURI, 144
S. Ct. 967 (2024).
A.
In Muldrow v. City of St. Louis, the Supreme
Court held that, in absence of a statutory
requirement, a plaintiff in an employment
discrimination case need show only that she
suffered some harm, not “significant harm”
from the discriminatory act.
In Muldrow v. City of St. Louis, Missouri, 144 S. Ct.
967 (2024), the Supreme Court held that, in an employment
discrimination case under Title VII, the judicially-created
requirement that the plaintiff-employee have suffered
“significant harm” from the discriminatory act cannot
stand. Since the statute does not require that the harm
be significant, a court has no ability to introduce that
requirement. This Court ruled that proof of any amount
of harm is sufficient to withstand a dispositive motion.
“Muldrow need show only some injury respecting her
employment terms or conditions. The transfer must have
left her worse off, but need not have left her significantly
so.” Id., at 976-977.
When construing the FHA, courts look to the
decisions interpreting Title VII. “Because Title VII and
the FHA employ similar language and ‘are part of
a coordinated scheme of federal civil rights laws
enacted to end discrimination,’ [citation omitted]
12
much of our FHA jurisprudence is drawn from cases
interpreting Title VII.” Hollis v. Chestnut Bend
Homeowners Ass’n, 760 F.3d 531, 537 (6th Cir. 2014) citing
Huntington Branch, NAACP v. Town of Huntington, 844
F.2d 926, 935 (2nd Cir. 1988), aff’d in part sub nom. Town
of Huntington, NY v. Huntington Branch, NAACP, 488
U.S. 15 (1988); see also Texas Dep’t of Hous. & Cmty.
Affairs v. Inclusive Communities Project, Inc, 576 U.S.
519, 539 (2015) (“The FHA, like Title VII and the ADEA,
was enacted to eradicate discriminatory practices within a
sector of our Nation’s economy.”) But in construing Section
3617 of the FHA, the Court of Appeals made the same
error as the lower courts in Muldrow. By measuring the
amount of effort necessary to constitute “aiding” under the
statute, the Court of Appeals has created a requirement
that is not in the statute. Any amount of “injury” was
sufficient to withstand a dispositive motion in Muldrow.
And any amount of “aiding” is sufficient to withstand a
dispositive motion under FHA’s retaliation provisions.
Muldrow, supra, at 976-977.
B. The Court of Appeals’ decision conflicts with
Muldrow, because, instead of determining
whether Schanz aided the JBS employees to
any degree, the Court of Appeals required
Schanz to have provided aid that the Court
considered significant.
The statute under which Schanz sued provides:
It shall be unlawful to coerce, intimidate,
threaten, or interfere with any person in the
exercise or enjoyment of, or on account of his
having exercised or enjoyed, or on account of his
13
having aided or encouraged any other person in
the exercise or enjoyment of, any right granted
or protected by section 3603, 3604, 3605, or
3606 of this title.
42 U.S.C. § 3617.
The Court of Appeals denied that Schanz had “aided”
the JBS employees. 13a. But the actual rationale was not
that Schanz failed to aid the employees, but that Schanz
did not aid them enough. That rationale conflicts with the
Supreme Court’s decision in Muldrow, because there is
no requirement in 42 U.S.C. § 3617 that a plaintiff must
provide a certain level of aid.
The Court of Appeals’ reasoning is as follows:
Schanz, by contrast, has presented no evidence
that he did anything that aided or encouraged,
or that even had the prospect of aiding or
encouraging, JBS’s immigrant employees in
their pursuit of housing. There is no evidence
that any of the employees were interested in,
or even aware of, Schanz’s plan. Schanz admits
that he never spoke to or tried to reach any such
person. He also admits that he had no further
contact with JBS representatives after his sole
meeting with them in mid-2017, and that he does
not know whether the company had any interest
in the building. And Schanz never attempted to
file a single application to obtain the necessary
approvals to develop the building for his stated
purpose.
14
Schanz, in short, would like to premise § 3617
liability on evidence that he manifested a
speculative desire to aid or encourage others
in the exercise or enjoyment of their FHA
rights. But § 3617 prohibits interference “with
any person ... on account of his having aided or
encouraged any other person in the exercise or
enjoyment” of FHA rights, not on account of
having an abstract, future intention to do so. 42
U.S.C. § 3617 (emphasis added); see Linkletter
[v. Western & Southern Financial Group,
Inc.], 851 F.3d [632] at 639 [2017] (considering
the “plain-meaning understanding of the word
‘encouraged’ ”).
This is not to say that a plaintiff’s actions
can come within the protection of § 3617
only if the plaintiff’s aid or encouragement is
efficacious. As Linkletter suggests, advocacy
may constitute protected conduct. But we do not
need to define the precise boundary between
protected and unprotected conduct; wherever
it is, we are confident that something more
than stray comments or idle talk is required.
Schanz’s conversations with Mitchell and
Rayman do not amount to protected conduct
because they had no prospect of aiding or
encouraging the immigrant employees at JBS.
Rayman was not even a relevant decisionmaker
for the fate of the building. Mitchell did have
a role on the Planning Commission once he
became City Manager, but he was not in office
in 2017, the only year during which Schanz
made even the slightest efforts to explore a
15
plan to house the employees. Schanz is sparse
on the details of what his exchanges with these
men entailed, but even he does not characterize
his comments as being aimed at any practical
objectives: he testified that he would mention
the topic to them to “prod[ ]” and “poke[ ] them
a little,” because he thought they were offended
by the idea of “some brown folks ... mov[ing] in
there.” R. 112-2, Schanz Dep.1, PageID.1493.
And he denies that his comments sparked
“big, long conversations”—just “the dumb look
of scoff, of get real, it ain’t happening.” Id. at
1494. Schanz’s comments, untethered from any
indications of a practical intention to advance
his hypothetical plan, could not have aided or
encouraged anyone in the exercise or enjoyment
of FHA rights.
12a-13a.
The Court of Appeals cited with approval the
Linkletter case for employing in its analysis the “plainmeaning understanding of the word ‘encouraged’.” 12a.
But the Court did not consider the plain-meaning of the
word “aided” which is the protected activity that Schanz
engaged in here. The plain-meaning of the word “aiding”
is “to provide with what is useful or necessary in achieving
an end.” Merriam-Webster Dictionary https://www.
merriam-webster.com/dictionary/aid (accessed 6-20-24).
Schanz could not achieve the end of providing
dormitory-style housing for religious refugees, because
the threats and intimidation by the city officials dissuaded
him from doing so. Mitchell and Rayman “pretty much
16
convinced me [Schanz] that if I tried they would run
me out of town.” Dep Schanz, 1/23/23, ECF No. 112-6,
PageID.1538-1539; Appellant’s Brief, Document 19, 43-46.
But Schanz’s efforts certainly provided what is useful, and
even necessary, in achieving that end.
In 2017, Scot Reitenour expressed interest in
converting the school to apartments and renting them to
the JBS workers. In summer 2017, Schanz had Reitenour
set up a meeting at the school with Schanz and certain
JBS executives, and Dave Rayman. Schanz had Reitenour
set up the meeting instead of doing it himself, because
Schanz feared Rayman after Rayman had told Schanz,
“it ain’t happening.” Dep Schanz 10-3-22, ECF No. 112-2,
PageID.1489-1492.
The company executives toured the school. But, when
Rayman and Schanz were apart from JBS the executives
and Reitenour, Rayman again told Schanz: “Ain’t ever
going to happen here. The city is never going to go for
that.” Dep. Struyk, ECF No. 112-5, PageID.1517.
Later, when neither the JBS officials nor Reitenour
showed interest in converting the school to apartments
(because the conversion to apartments was too expensive,)
Schanz independently moved forward with a new housing
design that he planned to market directly to the employees
– dormitory style housing, like a college dormitory. Dep
Schanz, ECF No. 112-6, PageID.1525 (deposition p. 21-22;
Appellant’s Brief, Document 19. 40-41.
Schanz consulted with Brian Winn, a contractor who
was the former chaplain for the JBS workers and then
supervisor of Otsego Township. From his service as
17
chaplain, Winn was very familiar with the workers’ dire
need for affordable local housing. At Schanz’s request,
Winn called the JBS personnel office and learned that the
workers were still desperate for local housing. JBS was
hiring 10 to 20 immigrants per week. There was a crunch
for local housing for those new employees, most of who
were living in Lansing or Grand Rapids (some in motels)
and reimbursing JBS from their wages for housing and
travel costs. Dep Winn, ECF No. 121-1, PageID.1750; Dep
Zevalkink, ECF No. 121-5, PageID.1826-1827.
Creating the dormitory was relatively inexpensive
and simple. Winn, Schanz’s general contractor, prepared
an estimate that labor and materials would cost Schanz
$1, 20 0,0 0 0. A lterations required only building a
community kitchen, dining hall, showers and restrooms.
Dep Winn, ECF No. 121-1, PageID.1747-1749; Estimate,
ECF No. 121-7, PageID.1868. Schanz planned to rent each
classroom (bedrooms) to four workers and would provide
furniture. This design avoided the much larger capital
investment required to convert the school to apartments.
Schanz had the financial ability to fund the project by
himself. Dep. Schanz, ECF No. 112-6, PageID.1537-1538.
For five years, from 2017 until March 2021, Schanz
“prodded” and “poked” Rayman and City Manager Aaron
Mitchell every month or two to withdraw their objections
to using the school as housing for the JBS employees.
Dep. Schanz, ECF No. 112-2, PageID.1493, deposition
page 115, emphasis added. By his persistence, Schanz
certainly “advocated” for housing for the JBS employees.
If “Linkletter’s petition-signing supporting the shelter fits
within the meaning of the phrase ‘aided or encouraged’”
[Linkletter supra, 851 F.3d at 635,] then Schanz’s monthly
18
beseeching Rayman and Mitchell certainly fits within the
definition of “aided or encouraged” in section 3617 of the
FHA.
All Schanz’s efforts were designed “to provide with
what is useful or necessary to achieve an end” – housing
for the JBS employees.
That Schanz did not, indeed could not, reach his goal
does not mean he did not aid the JBS employees. And the
Court of Appeals in this case acknowledged: “This is not to
say that a plaintiff’s actions can come within the protection
of § 3617 only if the plaintiff’s aid or encouragement
is efficacious. As Linkletter suggests, advocacy may
constitute protected conduct.” 12a-13a.
Likewise, “‘aiding or encouraging’ may occur without
actually securing housing for a would-be tenant.” United
States v. Gilbert, 813 F.2d 1523, 1528 (9th Cir. 1987). 2
Here, the threats from the Defendants dissuaded
Schanz from further action and prevented his aid from
being efficacious. In fact, unless the threats reasonably
2. In United States v. Gilbert, 813 F.2d 1523 (9 th Cir. 1987),
the court construed 42 U.S.C. § 3631(c) which provides a criminal
penalty for “whoever … intimidates or interferes with any citizen
… in order to discourage such citizen or any other citizen from
lawfully aiding or encouraging other persons to participate,
without discrimination on account of race, color, religion, sex,
handicap,” etc.) The Court held that the director of an adoption
organization responsible for the placement and adoption of
black and Asian children with families, but who was not directly
involved with placing the children in “dwellings,” had aided the
children within the meaning of 42 U.S.C. § 3631(c) [FHA’s criminal
provision.]
19
dissuade a plaintiff from further aiding a protected class,
a defendant’s threats are not actionable under section
3617 of the FHA. Cf. Burlington N. & Santa Fe Ry. Co.
v. White, 548 U.S. 53, 67–68 (2006) (construing Title VII
of the Civil Rights Act of 1964) cited in Muldrow v. City
of St. Louis, Missouri, 144 S. Ct. 967, 976 (2024).
The Title VII principle in Burlington is applicable
to FHA section 3617. See Geraci v. Union Square Condo
Ass’n, 891 F.3d 274, 277 (7th Cir. 2018); United States v.
Gilbert, 813 F.2d 1523, 1528 (9 th Cir. 1987); Hatfield v.
Cottages on 78th Cmty. Ass’n, No. 21-4035, 2022 WL
2452379, at *9 (10th Cir., July 6, 2022).
Yet, the Court of Appeals ignored Schanz’s argument
that the threats themselves prevented Schanz from aiding
the JBS employees more than Schanz did. Appellant’s
Brief, Document 19, 44-47; see Smith v. Stechel, 510 F.2d
1162, 1164 (9th Cir. 1975) (“[§ 3617] deals with a situation
where no discriminatory housing practice may have
occurred at all because the would-be tenant has been
discouraged from asserting [ ] rights”).
By all Schanz’s efforts (hosting the meeting with
JBS officials, contacting JBS personnel office, obtaining
a quote from a contractor, and repeatedly “prodding”
Rayman and Mitchell to withdraw their objections to
the project,) Schanz certainly advocated for the JBS
employees even though Schanz did not reach his goal.
Ironically, despite its acknowledging that aiding
need not be efficacious, the Court of Appeals’ rationale
for finding Schanz had not aided the workers is centered
around the criticism that his efforts would not have been
efficacious.
20
The Court of Appeals found that, “There is no
evidence that any of the employees were interested in, or
even aware of, Schanz’s plan. Schanz admits that he never
spoke to or tried to reach any such person.” 12a. But that
point relates to whether the employees would have rented
from Schanz if he had completed the project, i.e., whether
Schanz’s efforts would have been efficacious. And even if
no employee rented from Schanz, his efforts would still
have been designed “to provide with what is useful or
necessary” to “achieve the end” of housing for the JBS
employees. Merriam-Webster Dictionary https://www.
merriam-webster.com/dictionary/aid (accessed 6-20-24).
Moreover, even if, arguendo, the JBS workers were
not aware of Schanz’s specific plan, Schanz had a reliable
source that the JBS workers were desperately looking for
affordable local housing. The JBS personnel department
conveyed that to Brian Winn, Schanz’s agent. Dep Winn,
ECF No. 121-1, PageID.1750; Dep Zevalkink, ECF No.
121-5, PageID.1826-1827. Schanz did not need to talk to
individual employees. A reliable source told Schanz that
there was great demand for housing.
The Court of Appeals stated, “[Schanz] also admits
that he had no further contact with JBS representatives
after his sole meeting with them in mid-2017, and that he
does not know whether the company had any interest in
the building.” 12a. But Schanz did not need the support or
financial assistance of JBS. Schanz wanted to deal with
the grassroot workers directly through his friends that
worked at the plant and by a billboard Schanz owned near
the plant. Dep Schanz, ECF No. 112-6, PageID.1537-1538.
The Court of Appeals stated: “Schanz’s conversations
with Mitchell and Rayman do not amount to protected
21
conduct because they had no prospect of aiding or
encouraging the immigrant employees at JBS.” 13a. By
that statement, the Court of Appeals again improperly
tied whether Schanz aided the employees to whether his
efforts would have been efficacious. Thus, the Court of
Appeals contradicted its own principle that “[t]his is not to
say that a plaintiff’s actions can come within the protection
of § 3617 only if the plaintiff’s aid or encouragement
is efficacious. As Linkletter suggests, advocacy may
constitute protected conduct.” 12a-13a.
CONCLUSION
By reviewing the decision below, this Court can make
explicit the following important principles of law:
1.
When construing the FHA, courts should look to
the decisions interpreting Title VII, and courts
should specifically look to:
a.
the decision in Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53 (2006), as applied
to the FHA, that unless the intimidation
reasonably dissuades a plaintiff from aiding
a protected class, a defendant’s intimidation
is not actionable under 42 U.S.C. § 3617, and,
b.
the holding in Muldrow v. City of St. Louis,
Missouri, 144 S. Ct. 967 (2024), as applied
to the FHA, that when a court construes the
terms “aiding or encouraging” in 42 U.S.C.
§ 3617, any amount of aid or encouragement
suffices to overcome a motion for summary
judgment.
22
For the above reasons, Schanz asks this Court to issue
a writ of certiorari in this case.
Respectfully submitted,
Robert L. Levi
Counsel of Record
Robert L. Levi, P.C.
4125 Cumberland Court
Commerce Township, MI 48390
(313) 910-0337
robert@robertlevilaw.com
Counsel for Petitioner
July 15, 2024
APPENDIX
i
TABLE OF APPENDICES
Page
APPENDIX A — OPINION OF THE UNITED
STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT, FILED APRIL 15, 2024 . . . . . . 1a
APPENDIX B — OPINION AND ORDER OF
THE UNITED STATES DISTRICT COURT
FOR T H E W EST ERN DIST RICT OF
MICHIGAN, SOUTHERN DIVISION, FILED
JULY 14, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18a
1a
Appendix
A
APPENDIX A — OPINION
OF THE
UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT,
FILED APRIL 15, 2024
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 23-1705
KALVIN SCHANZ,
Plaintiff-Appellant,
v.
CITY OF OTSEGO, MICHIGAN et al.,
Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE WESTERN DISTRICT
OF MICHIGAN
Before: LARSEN, READLER, and DAVIS, Circuit Judges.
OPINION
LARSEN, Circuit Judge. Kalvin Schanz bought a
building in Otsego, Michigan, and explored the possibility
of converting it into dormitory-style housing for nearby
immigrant workers. In response to that idea, he claims,
local officials intimidated and retaliated against him in
violation of the Fair Housing Act. He also asserts that
one official violated his procedural-due-process rights. So
2a
Appendix A
Schanz sued the City of Otsego and several of its officials
and employees under the Fair Housing Act and 42 U.S.C.
§ 1983. The district court entered summary judgment in
favor of defendants. We AFFIRM.
I.
In May 2013, Kalvin Schanz purchased a vacant school
building located at 313 West Allegan Street in Otsego,
Michigan. Schanz had no particular plans in mind when
he bought the building, but over the years he entertained
ideas for several development projects. This lawsuit
springs from an idea that Schanz’s friend, Brian Winn,
suggested to him. Winn told Schanz that JBS Foods USA,
which operated a meatpacking facility near Otsego, was
in search of housing for some of its employees. Many JBS
employees were immigrants and religious refugees who
required assistance in finding housing. Schanz thought
that the school building could be outfitted to provide
dormitory-style housing to some of these employees, so,
in 2017, he arranged for several JBS representatives to
tour the building with him and a developer.
Schanz claims that his idea of providing housing
to JBS’s immigrant employees provoked opposition
from two City of Otsego officials: Dave Rayman, the
Economic Development Director; and Aaron Mitchell,
the City Manager. Rayman had been Otsego’s Economic
Development Director since 2009. But he was not on the
City’s Planning Commission, and he had no role with
respect to building code inspections or site plan approvals.
As City Manager, Mitchell was a member of the Planning
3a
Appendix A
Commission. But he did not assume this role until 2018;
before that, he worked for another municipality.
Schanz says that he mentioned the idea of housing
JBS employees to Rayman and Mitchell repeatedly over
several years, but that they insisted that it would “never
happen[],” that Schanz would “get run out of town for
that one,” and that the “building will have to come down.”
R. 112-2, Schanz Dep.1, PageID 1491, 1494. Schanz
characterizes these responses as racist. And Schanz’s
friend Winn testified that Rayman said “the city w[ould]
never allow [Schanz] to run a refugee camp out of that
school.” R. 121-1, Winn Dep., PageID 1753. Schanz was
“pissed off” and “embarrassed . . . that some person would
have a problem with them nice people working over at
that factory.” R. 112-2, Schanz Dep.1, PageID 1491. So, he
claims, he would mention the issue to Rayman or Mitchell
“every couple months”—in part, he says, to “prod[] them
a little after [he] knew that it offended them.” Id. at 1493.
Rayman denies ever expressing opposition to Schanz’s
idea of housing JBS’s immigrant employees, and Mitchell
says that he had never heard of the idea until this lawsuit
was filed.
Despite his alleged persistent comments to Rayman
and Mitchell concerning the development idea, Schanz
never took steps to get his plan off the ground. He had
only one meeting with JBS representatives, and he asserts
that he “never met or talked to any JBS employees except
for that meeting, period.” Id. at 1492. He admits that he
has no knowledge of whether “JBS had an interest in [the]
building,” but he notes that “[a]t the meeting they were
4a
Appendix A
very nice to [him].” Id. at 1494. And Schanz “never filed”
any application with the City of Otsego that would have
been necessary to commence his contemplated project.
Id. Nor did he ever speak to or interact with any of the
immigrant employees of JBS who were, in his vision,
the prospective tenants of the school building. Besides
the single meeting with JBS representatives, the only
tangible step that Schanz took to advance his idea was
to brainstorm with his friend Winn, a contractor, which
resulted in some handwritten cost estimates on a piece of
notebook paper. But their brainstorming did not lead to
any action—Schanz never hired a contractor or engineer,
never secured financing, and never filed paperwork or
attempted to appear before any local building or zoning
body.
In subsequent years, Schanz explored other possible
plans for the building. At one point, he tried to work with
a developer to get public grants for low-income housing,
but that went nowhere. Later, he entered into a purchase
agreement with another housing developer, but the buyer
backed out after determining that the project was not
financially feasible. Still, over the years, Schanz continued
to make comments to Rayman or Mitchell about housing
JBS’s immigrant employees.
On several occasions in 2020, Schanz experienced
problems with break-ins and vandalism at the building.
He says that tensions arose between him and the police
department regarding his habit of leaving the windows
open and unsecured. On one occasion in mid-July of that
year, the police had to search the building for “a prowler
5a
Appendix A
reported in the area.” R. 108-17, Weber Dep., PageID
1429. The responding officer, Brandon Weber, called for
backup because he was concerned about searching a large,
unsecured building alone. After Weber’s dispatch to the
building in mid-July 2020, he wrote to several city officials,
including Mitchell, complaining of Schanz’s “fail[ure] to
take even the most basic steps to secure the building.”
R. 108-7, Weber Email, PageID 1308. In his view, the
building was “an attractive nuisance” and “a significant
safety hazard,” especially for the school children who, he
said, frequented it. Id. at 1309. Keeping watch of Schanz’s
building was, Weber thought, “an egregious misuse
of police resources,” so he asked for advice on how to
“mitigate this problem.” Id.
Mitchell responded that, “unfortunately,” a potential
purchaser of the building had backed out of its deal with
Schanz. Id. at 1308. Thus, they would have to “deal with
[Schanz]” and “do something to get this building buttoned
up.” Id. According to Weber, Mitchell also separately told
him that he should “get some pictures” of the building’s
interior the next time he did “door checks and perimeter
checks.” R. 108-17, Weber Dep., PageID 1431. That way,
they could send the pictures to the code inspector for a
health and safety evaluation. So, on July 28, 2020, Weber
entered the school building and took forty photographs
of what seemed to him to be health and safety concerns.
Weber composed a report and sent it to Mitchell and the
code inspector, Bret Reitkerk.
After receiving Weber’s report, Reitkerk issued a
demolition letter for the school building on August 24,
6a
Appendix A
2020. The letter explained that “[a] police report shows
consistent break-ins, failures in the roof system, mold,
interior fall hazards, and an obvious lack of maintenance,”
and that “[t]he building is abandoned, neglected, and
unsecured.” R. 112-14, Demolition Notice, PageID 1619.
The letter informed Schanz that he had “the right to
appeal this notice” by sending “a written request for
an appeals meeting within 20 days upon receipt of this
notice.” Id. at 1620.
Reitkerk sent the letter to Schanz by certified mail,
using the mailing address listed on the tax records for
the school building. As it turned out, that address was
the home of Schanz’s mother, and Schanz did not live
there. (He lived two doors down.) His mother signed for
the letter on September 4, 2020. Schanz claims that he
did not receive the letter from his mother until October.
However, having heard around town that he was going
to be “dinged” by the City, in September Schanz texted
Rayman and Mitchell asking for “a copy of this notice
everybody is talking about,” but to no avail. Id. at 1474. On
September 21, he went to Reitkerk’s office and “begg[ed]”
for the letter. Id. at 1476. Schanz did not receive a copy
of the letter, but he and Reitkerk exchanged words about
the possibility of appealing the demolition notice or
challenging it in court.
On March 23, 2021, the City of Otsego initiated an
ordinance enforcement action against Schanz in state
court. The day before trial was set to begin, the City and
Schanz, through counsel, reached a settlement agreement
by which the City would dismiss its enforcement
7a
Appendix A
action without prejudice and Schanz would allow City
representatives to inspect the building. Despite the
parties’ agreement, however, Schanz instructed his
attorney to deny entry to the City’s representatives when
the time came for their scheduled inspection. Eventually,
an inspection took place on September 8, 2022; Schanz
corrected the relevant deficiencies, and the City rescinded
its demolition notice. The City represents that there are
currently no issues relating to the condition of the building.
In the meantime, Schanz, through different counsel,
filed the instant suit in federal court, seeking damages
for violations of the Fair Housing Act (FHA), the Fourth
A mendment, and the Fourteenth A mendment. As
relevant to this appeal, the operative complaint names as
defendants the City of Otsego and Mitchell, Rayman, and
Reitkerk, each in their individual and official capacities.
After extensive discovery, defendants moved for
summary judgment on all claims, and Schanz moved for
summary judgment on his Fourth Amendment claim.
The district court granted defendants’ motion and denied
Schanz’s motion. Schanz timely appealed.
II.
On appeal, Schanz contends that the district court
erred in entering summary judgment on his claim under
the FHA and on his procedural-due-process claim under
the Fourteenth Amendment. He does not renew his Fourth
Amendment claim. We review a district court’s grant of
summary judgment de novo. Huckaby v. Priest, 636 F.3d
8a
Appendix A
211, 216 (6th Cir. 2011). “Summary judgment is proper
when 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.’” Kareem v. Cuyahoga Cnty. Bd. of
Elections, 95 F.4th 1019, 1021 (6th Cir. 2024) (quoting Fed.
R. Civ. P. 56(a)). Because Schanz bears the burden of proof
at trial, he can survive a summary-judgment motion only
if he “has presented a jury question as to each element” of
his claim—that is, if he has presented “evidence on which
the trier of fact could find” in his favor. Davis v. McCourt,
226 F.3d 506, 511 (6th Cir. 2000) (citation omitted). At this
stage, we view the evidence in the light most favorable to
Schanz and draw all reasonable inferences in his favor.
Rafferty v. Trumbull County, 915 F.3d 1087, 1093 (6th
Cir. 2019).
We first address Schanz’s FHA claim and then turn
to his procedural-due-process claim.
A.
1.
Schanz brings his FHA claim against Mitchell,
Rayman, and the City of Otsego. Before we reach the
merits of this claim, however, we address defendants’
suggestion that Schanz lacks standing. To establish
Article III standing at the summary-judgment stage,
Schanz must put forth evidence, with respect to each
claim, showing that defendants’ actions caused him an
injury in fact that is redressable in these proceedings.
See TransUnion LLC v. Ramirez, 594 U.S. 413, 423, 431,
141 S. Ct. 2190, 210 L. Ed. 2d 568 (2021).
9a
Appendix A
Defendants argue that Schanz fails at this threshold
step because Schanz’s plans were too speculative to
turn the school building into a “dwelling” covered by the
FHA. See 42 U.S.C. § 3602(b) (defining “[d]welling” to
include “any building . . . intended for occupancy as[] a
residence”). This reasoning is mistaken. If the building is
not a “dwelling” under the FHA, Schanz might lack a valid
claim to relief under the statute.1 But that would not defeat
Schanz’s standing for Article III purposes. See Lexmark
Int’l, Inc. v. Static Control Components, Inc., 572 U.S.
118, 128, 134 S. Ct. 1377, 188 L. Ed. 2d 392 & n.4 (2014).
To have standing Schanz must “show only that he ‘has a
right to relief if the Court accepts [his] interpretation of
the constitutional or statutory laws on which the complaint
relies.’” Ward v. NPAS, Inc., 63 F.4th 576, 582 (6th Cir.
2023) (alteration in original) (quoting CHKRS, LLC v.
City of Dublin, 984 F.3d 483, 488 (6th Cir. 2021)). In other
words, “just because a plaintiff’s claim might fail on the
merits does not deprive the plaintiff of standing to assert
it.” Id. (brackets omitted).
We are satisfied that Schanz has standing to bring
his § 3617 claim for damages. For purposes of evaluating
standing, we assume that Schanz’s statutory arguments
are correct. Id. And Schanz has presented evidence that, if
believed, could show that Rayman repeatedly threatened
to have Schanz’s building demolished and, eventually,
in coordination with Mitchell, caused the City and its
representatives to issue a baseless demolition notice and
1. To be clear, we express no view regarding whether or
how a “dwelling” must be involved for there to be a violation of
42 U.S.C. § 3617.
10a
Appendix A
enforcement action against Schanz. At this stage of the
litigation, that is sufficient to establish an injury in fact.
See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561, 112 S.
Ct. 2130, 119 L. Ed. 2d 351 (1992). This injury can be
redressed by an award of damages by a federal court. See
42 U.S.C. § 3613(c)(1) (authorizing a court to award “actual
and punitive damages”). Accordingly, Schanz has standing
to bring his FHA claim, and we proceed to the merits.
2.
Schanz brings his claim under 42 U.S.C. § 3617. That
provision of the FHA makes it
unlawful to coerce, intimidate, threaten, or
interfere with any person in the exercise
or enjoyment of, or on account of his having
exercised or enjoyed, or on account of his having
aided or encouraged any other person in the
exercise or enjoyment of, any right granted or
protected by section 3603, 3604, 3605, or 3606
of this title.
Of these latter sections, Schanz says § 3604 is relevant
here. It “prohibit[s] various forms of discrimination
relating to housing” on the basis of race, color, religion,
sex, familial status, or national origin—such as “mak[ing]
unavailable or deny[ing] a dwelling” or “discriminat[ing]
. . . in the terms, conditions, or privileges of sale or rental
of a dwelling.” Hidden Village, LLC v. City of Lakewood,
734 F.3d 519, 528 (6th Cir. 2013); 42 U.S.C. § 3604(a). To
prevail on a claim under § 3617’s “aided or encouraged”
11a
Appendix A
clause, a plaintiff must prove that: (1) he “aided or
encouraged another’s enjoyment of the housing rights
protected by §§ 3603-06”; (2) the defendant engaged
in conduct amounting to coercion, intimidation, threat,
or interference; and (3) there was a nexus between the
defendant’s interference and the underlying FHA rights.
Linkletter v. W. & S. Fin. Group, Inc., 851 F.3d 632, 63840 (6th Cir. 2017) (cleaned up); see Hood v. Midwest Sav.
Bank, 95 F. App’x 768, 779 (6th Cir. 2004). A plaintiff must
also “demonstrate ‘discriminatory animus’” on the part of
the defendant. HDC, LLC v. City of Ann Arbor, 675 F.3d
608, 613 (6th Cir. 2012) (quoting Mich. Prot. & Advocacy
Serv., Inc. v. Babin, 18 F.3d 337, 347 (6th Cir. 1994)).
The district court concluded that Schanz failed to
create a triable issue of fact on the first element, and we
agree. Although we have never delineated the precise
contours of the “aided or encouraged” element, Schanz’s
evidence fails to satisfy any plausible interpretation
of it. Our most relevant case is Linkletter. There, the
plaintiff had signed a petition supporting residents of a
women’s shelter in their ongoing dispute with an insurance
company, which was seeking to force the shelter out of
the neighborhood and acquire the property. 851 F.3d
at 636, 638-39. The plaintiff had accepted an offer of
employment from the same insurance company. Id. at
635. But the insurance company rescinded the offer,
citing the plaintiff’s support for the shelter as its reason.
Id. We held that the plaintiff had adequately stated a
claim under § 3617. “A plain-meaning understanding of
the word ‘encouraged,’” we explained, “clearly covers the
act of signing a petition advocating support for a women’s
12a
Appendix A
shelter.” Id. at 639. This was especially true given the
“timing of the petition,” which the plaintiff had signed
“while the dispute between the shelter and [the insurance
company] was ongoing.” Id. at 638, 636.
Schanz, by contrast, has presented no evidence that he
did anything that aided or encouraged, or that even had
the prospect of aiding or encouraging, JBS’s immigrant
employees in their pursuit of housing. There is no evidence
that any of the employees were interested in, or even
aware of, Schanz’s plan. Schanz admits that he never
spoke to or tried to reach any such person. He also admits
that he had no further contact with JBS representatives
after his sole meeting with them in mid-2017, and that he
does not know whether the company had any interest in
the building. And Schanz never attempted to file a single
application to obtain the necessary approvals to develop
the building for his stated purpose.
Schanz, in short, would like to premise § 3617 liability
on evidence that he manifested a speculative desire to aid
or encourage others in the exercise or enjoyment of their
FHA rights. But § 3617 prohibits interference “with any
person . . . on account of his having aided or encouraged
any other person in the exercise or enjoyment” of FHA
rights, not on account of having an abstract, future
intention to do so. 42 U.S.C. § 3617 (emphasis added);
see Linkletter, 851 F.3d at 639 (considering the “plainmeaning understanding of the word ‘encouraged’”).
This is not to say that a plaintiff’s actions can come
within the protection of § 3617 only if the plaintiff’s aid
13a
Appendix A
or encouragement is efficacious. As Linkletter suggests,
advocacy may constitute protected conduct. But we do not
need to define the precise boundary between protected
and unprotected conduct; wherever it is, we are confident
that something more than stray comments or idle talk
is required. Schanz’s conversations with Mitchell and
Rayman do not amount to protected conduct because they
had no prospect of aiding or encouraging the immigrant
employees at JBS. Rayman was not even a relevant
decisionmaker for the fate of the building. Mitchell did
have a role on the Planning Commission once he became
City Manager, but he was not in office in 2017, the only year
during which Schanz made even the slightest efforts to
explore a plan to house the employees. Schanz is sparse on
the details of what his exchanges with these men entailed,
but even he does not characterize his comments as being
aimed at any practical objectives: he testified that he
would mention the topic to them to “prod[]” and “poke[]
them a little,” because he thought they were offended by
the idea of “some brown folks . . . mov[ing] in there.” R.
112-2, Schanz Dep.1, PageID 1493. And he denies that his
comments sparked “big, long conversations”—just “the
dumb look of scoff, of get real, it ain’t happening.” Id. at
1494. Schanz’s comments, untethered from any indications
of a practical intention to advance his hypothetical plan,
could not have aided or encouraged anyone in the exercise
or enjoyment of FHA rights.
Accordingly, we affirm the district court’s grant of
summary judgment to Mitchell, Rayman, and the City
on Schanz’s FHA claim.
14a
Appendix A
B.
Schanz also contends that the district court erred
in granting summary judgment to Reitkerk on the 42
U.S.C. § 1983 claim for a violation of procedural due
process. To prevail on a procedural-due-process claim,
a plaintiff must prove that: (1) he had a constitutionally
protected interest, (2) the government deprived him of
that interest, and (3) the government did not afford him
constitutionally adequate process. Golf Village N., LLC v.
City of Powell, 42 F.4th 593, 598 (6th Cir. 2022). Because
the Constitution does not create property interests, we
look to “an independent source such as state law” to
determine whether a plaintiff has identified an interest
protected by the Due Process Clause. Bd. of Regents of
State Colls. v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33
L. Ed. 2d 548 (1972).
Schanz brings this claim against Reitkerk for
allegedly failing to timely provide him with the demolition
notice. But Schanz has not shown that he was deprived
of a property interest. The City eventually dismissed
its state-court enforcement action and rescinded its
demolition notice, so his building was never demolished.
To the extent Schanz believes that Reitkerk did not
follow the appropriate procedures before issuing the
demolition notice, this gets him nowhere: he does not
have a property interest in procedures themselves.
Richardson v. Township of Brady, 218 F.3d 508, 51718 (6th Cir. 2000). Similarly unavailing is his argument
that the demolition notice reduced the market value of
his property by requiring him to disclose the notice to
15a
Appendix A
any buyer during the pendency of the demolition matter.
Not only does Schanz fail to offer any evidence that the
property value was reduced, either while the demolition
matter remained pending or after its resolution; but this
argument also turns on the premise that the notice itself
deprived Schanz of a property interest. Yet Schanz has
identified no authority to support the notion that state law
confers on him a property interest in being free of a notice
of an appealable building-code order and of any market
consequences it might entail.
Schanz’s procedural-due-process claim fails because
he has presented no evidence that he was deprived of a
protected property interest.
***
For the foregoing reasons, we AFFIRM the judgment
of the district court.
16a
Appendix A
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 23-1705
KALVIN SCHANZ,
Plaintiff-Appellant,
v.
CITY OF OTSEGO, MICHIGAN, A MUNICIPAL
CORPORATION, BRANDON WEBER, AARON
MITCHELL, DAVE RAYMAN, BRET RIETKERK,
AND BRAD MISNER, INDIVIDUALLY AND IN
THEIR OFFICIAL CAPACITIES,
Defendants-Appellees.
Before: LARSEN, READLER, and DAVIS,
Circuit Judges.
JUDGMENT
On Appeal from the United States District Court for
the Western District of Michigan at Grand Rapids.
THIS CAUSE was heard on the record from the
district court and was submitted on the briefs without
oral argument.
IN CONSIDERATION THEREOF, it is ORDERED
that the district court’s grant of summary judgment in
favor of the defendants is AFFIRMED.
17a
Appendix A
ENTERED BY ORDER OF THE COURT
/s/ Kelly L. Stephens
Kelly L. Stephens, Clerk
18a
Appendix
B AND ORDER
APPENDIX B —
OPINION
OF THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN,
SOUTHERN DIVISION, FILED JULY 14, 2023
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN,
SOUTHERN DIVISION
CASE NO. 1:21-cv-1028
KALVIN SCHANZ,
Plaintiff,
v.
CITY OF OTSEGO, MICHIGAN, et al.,
Defendants.
July 14, 2023, Decided;
July 14, 2023, Filed
HON. ROBERT J. JONKER
OPINION AND ORDER
Plaintiff Kalvin Schanz (“Plaintiff” or “Schanz”)
purchased a vacant elementary school in 2013. He says
that he planned to convert that property into housing for
religious refugees and Pacific Islanders who could work at a
nearby meat-packing facility, but that Defendants opposed
his idea out of racial animus. Defendants deny that and
19a
Appendix B
say Plaintiff had no actual housing plan or opportunity in
any event. Defendants admit requiring Plaintiff to secure
and repair his property but only because it had become a
recurring subject of nuisance calls and only in compliance
with all the process legally due Plaintiff. Defendants move
for summary judgment on all counts and Plaintiff moves
on his Fourth Amendment Claim. The Court heard oral
argument on the motions on May 17, 2023. Based on all
matters of record, the Court is satisfied that there is no
genuine issue of material fact, and that Defendants are
entitled to judgment as a matter of law.
Factual Background
In 2013, Schanz purchased a former elementary school
(hereinafter, “the Property”) in Otsego, Michigan. (ECF
No. 112, PageID.1441.) The Property was located in an
area that is zoned for single-family residences. (ECF No.
108, PageID.1149.) Educational institutions and two-family
residences are permitted under special use, but all other
residential development would require rezoning. (Id.)
As early as 2015, Schanz considered turning the facility
into “dormitorystyle housing for a multitude of JBS
employees,” who were “all religious refuges” with national
origins from “Africa, the Middle East, and Asia.” (ECF
No. 112, PageID.1441.) Schanz alleges that also in 2015,
Defendant Dave Rayman, the Director of Development
for the City of Otsego, objected to the idea, saying “That
ain’t happening. Get real. You’ll get run out of town.”
(Id., PageID.1442.) Schanz alleges that over the next five
or so years, Plaintiff periodically approached Defendant
Rayman and City Manager Aaron Mitchell about using
20a
Appendix B
the school as housing and was rebuffed. (Id., PageID.1443.)
Schanz understood these objections to be because the
potential residents were not white. (Id.) Schanz alleges
that Mitchell and Rayman’s “racist attitude” and
“threats”, such as “you’d get run out of town for that
one” deterred him from filing an application to rezone
the Property or for the permits that would be required to
convert the vacant school building into housing. (Id.) Other
development options he pursued ultimately fell through.
(ECF No. 112, PageID.1446.)
On several occasions in 2020, Defendant Brendon
Weber, a police officer, interacted with Schanz and the
Property. (ECF No. 112, PageID.1444.) In January of
2020, Schanz called for assistance when some teenagers
entered the school building. (Id.) Weber responded,
making arrests, and authoring a report. (Id.) Weber recalls
multiple other instances, including pursuing a fleeing
suspect into the Property through a broken window. (Id.)
On July 14, 2020, Weber sent an email to the City Manager
Mitchell, Police Chief Misner, and Bret Reitkerk, a code
inspector1, about the state of the Property, noting that
Schanz “routinely fails to take even the most basic steps
to secure the building” only to “complain[] vociferously
when vandalism and thefts occur.” (ECF No. 112-8,
PageID.1560.) In the same email, Weber describes open
or unlocked windows, “open voids, asbestos laden floor
tiles that are being haphazardly scraped off the floor,
leaks in the roof” and open gates to access the playground
1. Reitkerk is employed by PCI, which is the company the
City contracts with for building inspection services. (ECF No. 108,
PageID.1151.)
21a
Appendix B
area. Weber’s email specifically notes that the Property
is attractive to children and expressed concern about it
posing a safety hazard because it was unsecured. (Id.,
PageID.1560-61.)
Weber testified that during an in-person conversation
after his email, Mitchell suggested that the next time
Weber was in the building, he should take pictures that
could be shared with city inspectors. (ECF No. 112,
PageID.1445.) On July 28, 2020, Weber entered the
school without a warrant or permission from Schanz.
(Id., PageID.1447.) Weber took photographs and prepared
a report describing dangerous conditions, which he
delivered to Mitchell and Reitkerk. (Id.)
After a review of the photos, Reitkerk sent Schanz a
Notice letter of demolition dated August 24, 2020. (ECF
No. 112-14, PageID.1619.) That document stated that the
recipient had 120 days from receipt to have the structure
demolished and all debris removed. (Id.) It also explained
that to appeal the notice, one must send a written request
for an appeal meeting within 20 days of receipt. (Id.,
PageID.1620.) The notice was mailed to the address on
the tax record for the School, which Schanz alleges is his
parents’ address. (ECF No. 112, PageID.1448.) Schanz’s
mother signed for the certified letter on September 4,
2020. (Id.) Schanz testified that she never told him about
the letter and that he only received it in early October
2020. (Id.) Even so, on September 21, 2020, Schanz met
with Reitkerk to discuss these issues. (ECF No. 108,
PageID.1151.) During that meeting, Schanz testified that
Mr. Reitkerk told him that he could appeal the Notice. (Id.)
At no time did Schanz file that written request for appeal.
22a
Appendix B
On March 23, 2021, the City implemented an
enforcement action. (ECF No. 108, PageID.1146.) Schanz
filed this action in December 2021. (ECF No. 1.) The City
ultimately dismissed the enforcement action as part of a
negotiated settlement which permitted the City to conduct
an inspection of the building. (ECF No. 108, PageID.1152.)
That inspection was originally scheduled for February
28, 2022, but Schanz, at the direction of counsel, did not
permit the inspectors to enter the Property. (ECF No.
108-3, PageID.1264.) The inspection ultimately took place
on September 8, 2022. (ECF No. 108, PageID.1153.) The
demolition notice was rescinded in September 2022. (ECF
No. 112-15, PageID.1622.)
Legal Standards
Summary judgment is appropriate if there is no
genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a). Summary judgment is appropriate only if,
“taking the evidence in the light most favorable to the nonmoving party, ‘the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law.” La Quinta
Corp. v. Heartland Props., LLC, 603 F.3d 327, 335 (6th Cir.
2010) (quoting Fed. R. Civ. P. 56). In considering a motion
for summary judgment, the Court draws all justifiable
inferences in favor of the non-moving party. Bobo v.
United Parcel Service, Inc., 665 F.3d 741 (6th Cir. 2012).
On a summary judgment motion, “the ultimate question
. . . is whether the evidence presents a sufficient factual
23a
Appendix B
disagreement to require submission of a particular legal
claim to the jury or whether the evidence on the claim is
so one-sided that [the moving party] should prevail as a
matter of law.” Id. at 748-49.
When cross motions for summary judgment are filed,
the court must “evaluate each party’s motion on its own
merits, taking care in each instance to draw all reasonable
inferences against the party whose motion is under
consideration.” Taft Broad. Co. v. United States, 929 F.2d
240, 248 (6th Cir. 1991) (quoting Mingus Constructors,
Inc. v. United States, 812 F.2d 1387, 1391)). “[I]f the
moving party also bears the burden of persuasion at trial,
the moving party’s initial summary judgment burden
is ‘higher in that it must show that the record contains
evidence satisfying the burden of persuasion and that
the evidence is so powerful that no reasonable jury would
be free to disbelieve it.’“ Cockrel v. Shelby Cnty. Sch.
Dist., 270 F.3d 1036, 1056 (6th Cir. 2001) (quoting Moore’s
Federal Practice).
Discussion
In November 2022, Schanz filed the operative
Complaint in this matter, which asserts three counts: (1)
a Fair Housing Act violation against Defendants Mitchell,
Rayman, and the City; (2) a Due Process Violation against
Defendant Reitkerk; and (3) a Fourth Amendment
Violation for illegal search against Defendants Weber,
Mitchell, Misner, and the City. (ECF No. 84.) Defendants
have moved for summary judgment on all counts, while
Schanz has cross-moved for summary judgment only
regarding the allegedly illegal search by Officer Weber.
24a
Appendix B
1) The Fair Housing Claims
The Fair Housing Act (“FHA”) prohibits discrimination
in the “sale or rental of a dwelling, or in the provision of
services or facilities in connection therewith, because
of race, color, religion, sex, familial status, or national
origin.” 42 U.S.C. § 3604. Any “aggrieved person”, which
the Act defines as one who “(1) claims to have been injured
by a discriminatory housing practice; or (2) believes that
such person will be injured by a discriminatory housing
practice that is about to occur” may bring suit. Id. §
3602(i). “Under the Fair Housing Act, a plaintiff thus
need show only that he or she (1) has suffered an injury
in fact (2) that is causally connected to the defendants’
conduct and (3) that is likely to be redressed by a favorable
ruling.” Hamad v. Woodcrest Condo. Ass’n, 328 F.3d
224, 230-31 (6th Cir. 2003) (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992)); see also DeBolt v.
Espy, 47 F.3d 777, 779-82 (6th Cir.1995) (applying three
Lujan factors to determine standing in a Fair Housing
Act case). Defendants are entitled to summary judgment
on this claim.
a)
The Property is not a “dwelling.”
Defendants argue that Schanz has no standing to
assert a claim under the FHA for multiple reasons. (ECF
No. 108, PageID.1154.) First, Defendants argue that the
FHA does not apply because the Property is not a dwelling
within the meaning of the statute. The Fair Housing Act
defines “dwelling” as: “any building, structure, or portion
thereof which is occupied as, or designed or intended for
25a
Appendix B
occupancy as, a residence by one or more families, and
any vacant land which is offered for sale or lease for the
construction or location thereon of any such building,
structure, or portion thereof.” 42 U.S.C. § 3602(b).
Defendants argue that the Property was not designed
for or intended for occupancy nor was it occupied as a
residence. (ECF No. 108, PageID.1156.) Plaintiff counters
that the Fair Housing Act is more broadly applicable and
that the Property meets the definition. (ECF No.121,
PageID.1708.) Specifically, Plaintiff argues that the
language of “intended for occupancy” includes Schanz’s
future intention to use it for dormitory-style housing. (Id.)
The Supreme Court “has repeatedly written that
the FHA’s definition of person ‘aggrieved’ reflects a
congressional intent to confer standing broadly” and
“that the definition of ‘person aggrieved’ in the original
version of the FHA, § 810(a), 82 Stat. 85, ‘showed a
congressional intention to define standing as broadly as
is permitted by Article III of the Constitution.’” Bank of
Am. Corp. v. City of Miami, Fla., 581 U.S. 189, 197 (2017)
(quoting Trafficante v. Metropolitan Life Ins. Co., 409
U.S. 205, 209 (1972) (additional internal quotations and
citations omitted). Whether, and if so how, this principle
specifically applies to the term “dwelling” is not something
the Supreme Court has addressed nor has the Supreme
Court explicitly addressed the “intended for occupancy”
prong of the term “dwelling. Neither has the Sixth Circuit.
Several other circuits have. The Third Circuit relied on
Trafficante’s “generous” interpretation of the statute
when finding that a drug- and alcohol- treatment center
qualified as a dwelling. Lakeside Resort Enterprises,
26a
Appendix B
LP v. Bd. of Sup’rs of Palmyra Twp., 455 F.3d 154, 156
(3d Cir. 2006), as amended (Aug. 31, 2006). The Eleventh
Circuit concluded that halfway houses were dwellings.
Schwarz v. City of Treasure Island, 544 F.3d 1201, 1214
(11th Cir. 2008). Both Circuits focused on factors like how
long occupants expected to remain in the building and
whether the occupants treated the building as a home.
As the Eleventh Circuit put it, “the house, apartment,
condominium, or co-op that you live in is a “residence,”
but the hotel you stay in while vacationing at Disney
World is not.” Schwarz, 544 F.3d at 1214. In Court’s view,
a dormitory would fall squarely within the meaning of
“dwelling.”
But this is not enough to answer the question here
because everyone agrees the building was not and never
has been a dormitory. In fact, no one has ever resided in
the school on any terms. 2 Is the owner’s suggestion that
he plans one day to turn the school into dormitory-style
housing for marginalized individuals enough to qualify?
The answer on this record is “no.” Schanz never had
anything more than a speculative concept. Neither he,
nor anyone else, including the meat-packing plant, had an
2. Before Schanz’s purchase, a liberal arts college owned the
Property. The Complaint alleges that previous owners “operated a
Catholic liberal arts college” on the Property and that there “were
dormitory rooms in part of” the Property. 3d Am. Compl. ¶ 20.
But Defendants state, and Plaintiff does not dispute, that, in fact,
the “project did not materialize.” ECF No. 108, PageID.1149. The
previous owners had applied for and received a special land use
permit for the project, which expired in 2009 when the project did
not proceed-- well before Schanz purchased the Property.
27a
Appendix B
identified group of religious refugees or Pacific Islanders
looking for worker housing. Plaintiff never filed any
papers aimed at the necessary zoning changes. Schanz
never spent any money demonstrating even the basic
feasibility of converting a vacated elementary school into
a residence for a group of adults. At most Plaintiff says
he talked to a contractor (ECF No. 121, PageID.1705.)
No matter how far the “intended for” prong may reach, it
cannot cover Schanz’s, or anyone else’s, mere speculative
concept without overreaching the case or controversy limit
of Article III. See TransUnion LLC v. Ramirez, 141 S.
Ct. 2190 (2021).
Plaintiff argued at oral argument that Schanz’s
idea was enough and directed the Court to consider the
many Fair Housing Act cases brought by developers.
But those cases actually underscore the point because all
the developer cases involve players with real skin in the
game and not simply a speculative concept. In Park View
Heights v. City of Blackjack, 467 F.2d 1208 (8th Cir. 1972),
the Eighth Circuit held that two non-profits involved in
sponsoring and developing a specific public housing project
had standing because “[i]t is as important to protect
the right of sponsors and developers to be free from
unconstitutional interferences in planning, developing,
and building an integrated housing project, as it is to
protect the rights of potential tenants of such projects.
467 F.2d at 1212. In Park View Heights, the plaintiffs
sought to invalidate a zoning ordinance which effectively
barred the type of housing they planned to build. One
of the corporate plaintiffs signed a sales contract for
land and had advanced the religious organizations “seed
28a
Appendix B
money” financing.” Id. at 1210. An initial application was
submitted to the federal government about building the
apartments. Id. The federal government had even issued a
feasibility letter. Id. at 1211. After that, the local residents
incorporated into the city and ultimately passed a new
ordinance prohibiting the apartments from being built. Id.
The Eight Circuit relied on the economic interest of the
corporate entities to satisfy the standing requirements,
as well as having sufficiently close interests to individual
plaintiffs concerned with equal protection violations to
satisfy the Brewer test.
Similarly, in U.S. Gen., Inc. v. City of Joliet, 432 F.
Supp. 346 (N.D. Ill. 1977), the developer plaintiff had
bought or purchased options on each of the sites approved
for the low-income housing projects and entered into a
contract with the city’s Housing Authority to construct the
rental units. The contract required the plaintiff to secure
a zoning change, so the developer submitted a rezoning
proposal to the planning commission, which recommended
it be accepted. The Council blocked it and the plaintiff
developer sued. 3
In these cases, the developer who was asserting
standing under the Fair Housing Act had done far more
to demonstrate that they were, in fact, going to build
housing. Here, Schanz never submitted a plan or applied
for a zoning ordinance. The most concrete step Schanz
took here was talking to a contractor. (ECF No. 121,
3. U.S. Gen., Inc. also references Warth v. Seldin, 422 U.S. 490
(1975), but in Warth, the Supreme Court ultimately concluded no
plaintiff had standing. Warth does not help Schanz.
29a
Appendix B
PageID.1705.) The record simply does not support that
Schanz had more than a speculative concept to ever
convert the building. Faced with this record, the Court
must consider the Property as it was, which was an
unoccupied school building in a single-family residence
district permitting special use applications for educational
or two-family housing only. That is not a dwelling within
the meaning of the Fair Housing Act and stretching the
“intended for” prong to cover this situation would exceed
the bounds of Article III standing. Therefore, Schanz’s
claim fails as a matter of law.
b)
Schanz Did Not “Aid or Encourage” Any
Protected Party.
Even if the Property qualified as a dwelling, Schanz’s
Fair Housing Act claims would fail. Section 3617 of the
Fair Housing Act makes it “unlawful to coerce, intimidate,
threaten, or interfere with any person in the exercise or
enjoyment of, or on account of his having exercised or
enjoyed, or on account of his having aided or encouraged
any other person in the exercise of, any right granted or
protected by section 3603, 3604, 3605 or 3606 of this title.”
42 U.S.C § 3617. “Essentially, § 3617 allows a plaintiff
to step into the shoes of the victims of certain types of
housing discrimination when the plaintiff faces retribution
for providing encouragement to the victims.” Linkletter v.
W. & S. Fin. Grp., Inc., 851 F.3d 632, 637 (6th Cir. 2017).
To state a claim under § 3617, a plaintiff must establish:
“(1) that he exercised or enjoyed a right guaranteed by
§§ 3603-3606; (2) that the defendant’s intentional conduct
30a
Appendix B
constituted coercion, intimidation, threat, or interference;
and (3) a causal connection between his exercise or
enjoyment of a right and the defendant’s conduct. Hood v.
Midwest Sav. Bank, 95 Fed. Appx. 768, 779 (6th Cir. 2004).
What’s more, “[i]n this Circuit, a plaintiff is required to
demonstrate ‘discriminatory animus’ to prevail on an
interference claim under the Act.” HDC, LLC v. City of
Ann Arbor, 675 F.3d 608, 613 (6th Cir. 2012) (citing Mich.
Prot. & Advocacy Serv., Inc. v. Babin, 18 F.2d 337, 347
(6th Cir. 1994). Section 3617 should be read broadly and “is
not limited to those who used some sort of ‘potent force or
duress,’ but extends to other actors who are in a position
directly to disrupt the exercise or enjoyment of a protected
right and exercise their powers with a discriminatory
animus.” Michigan Prot. & Advocacy Serv., Inc. v. Babin,
18 F.3d 337, 347 (6th Cir.1994).
Schanz’s claim under this act is premised on his
“aid[ing] or encourage[ing]” individuals who are members
of a protected class from moving into the Property. The
local plant employed religious refugees of a wild variety
of national origins. (ECF No. 112-3, PageID.1508). In his
deposition, a former company chaplain, who was employed
between 2010-2014, testified there were employees who
were “Hispanic,” “from the Middle East,” “from Asia,”
and “from Africa.” (Id. at PageID.1507, 1508.) These
individuals were from a variety of religious backgrounds,
including Islam. (Id. at PageID.1508). Per the Second
Amended Complaint, there were also Pacific Islanders who
were employed at the Plant. (ECF No. 22-1, PageID.433.)
But there is no evidence Plaintiff knew or had contact with
any of them, and no evidence any of them were looking for
dormitory housing from Plaintiff.
31a
Appendix B
Nor is there any evidence that JBS itself was
supporting a development. In 2017, several JBS employees,
including Angela Zevalink, who was in human resources
at the time toured the Property. (ECF No.108-15,
PageID.1403.) She recalled touring another property at
the same time but did not recall any interest in moving
forward with Schanz’s idea. (Id., PageID.1407). To her
knowledge, JBS never moved forward with any housing
developments in that area. (Id.) Schanz admitted that was
the only time he ever spoke to anyone at JBS. (ECF No.
108-3, PageID.1275).
Schanz provides no evidence that he ever communicated
directly with any JBS employees or prospective employees
in need of such housing. On this record, no reasonable jury
could find that Schanz ever “aided or encouraged” anyone
of a protected class to exercise or enjoy any rights under
the Fair Housing Act.4 The unrebutted evidence is that
neither JBS nor any actual protected person ever had any
interest in Plaintiff’s speculative concept.
4. Schanz also asserts claims for lost profits under the Fair
Housing Act. Because the Court finds that Schanz does not have
a claim under the FHA at all, it need not address the parties’
arguments about finality and futility. However, the Court has
observed that no zoning application or building plan has ever been
filed. See Vill. Green At Sayville, LLC v. Town of Islip, 43 F.4th 287,
297 (2d Cir. 2022) (analyzing multiple cases holding that land use
queries, including under the FHA, are “not ripe” where plaintiffs
“failed to submit a single variance application” or where plaintiff has
“midstream abandon[ed] the zoning process.”) Whether considered
as a ripeness issue, a standing issue, or a speculative damages issue,
the overall point is that real developers with real skin in the game
are in a totally different class from Schanz, who never had more
than an idea, hope, or concept.
32a
Appendix B
2) The Due Process Claim
Next, Schanz asserts that Defendant Reitkerk
violated his right to due process. The Due Process Clause
of the Fourteenth Amendment “provide[s] a guarantee of
fair procedure in connection with any deprivation of life,
liberty, or property by a State.” Collins v. City of Harker
Heights, 503 U.S. 115, 125 (1992). On the other hand,
“substantive due process protects against government
actions that are ‘arbitrary and capricious’ even if there
are adequate procedural safeguards.” Golf Vill. N., LLC
v. City of Powell, Ohio, 42 F.4th 593, 598 (6th Cir. 2022)
(quoting EJS Props., LLC v. City of Toledo, 698 F.3d 845,
855 (6th Cir. 2012). To make a procedural or substantive
due process claim, “the plaintiff must show that (1) [he]
has a constitutionally protected interest, and (2) the state
in some way deprived him of that interest.” Golf Vill. N.,
LLC, 42 F.4th at 598. For the reasons detailed below,
Schanz’s claim fails under either framework.
The fundamental flaw in Schanz’s due process theory
is that he never actually lost anything. The City did issue
a demolition notice in August of 2020. Schanz complains it
was sent to his mother’s address and that he did not learn
about it until October of 2020. Despite that, he was able
to meet personally with Reitkerk about it on September
21, 2020. So, by that time, Schanz had actual notice. But
even if that would otherwise be a problem, it is of no
moment here because the demolition never occurred. To
the contrary, the City ultimately dismissed its efforts to
enforce the demolition and rescinded the demolition order
entirely in September of 2022. Plaintiff lost nothing, and
33a
Appendix B
he has no property interest in the procedures themselves.
See Taylor Acquisitions LLC v. City of Taylor, 313 Fed.
Appx. 826, 832 (6th Cir. 2009).
Moreover, due process does not require perfect
notice. It requires “notice reasonably calculated under
all the circumstances, to apprise interested parties of
the pendency of the action,” Mullane v. Cent. Hanover
Bank & Tr. Co., 339 U.S. 306, 316 (1950), “actual notice
is not required.” Keene Grp., Inc. v. City of Cincinnati,
Ohio, 998 F.3d 306, 311 (6th Cir. 2021) (citing Dusenbery
v. United States, 534 U.S. 161, 170 (2002)). Schanz asserts
that the Notice was mailed to the wrong address because
it was mailed to his mother’s home address. (ECF No.
82, PageID.973.) It is undisputed that Schanz’s parents’
address was on the tax record for the school. (ECF No. 121,
PageID.1695.) His mother signed for the certified letter
on September 4, 2020. (ECF No. 108-10, PageID.1347.)
By his own admission, Plaintiff was aware that he had
been “dinged with some notice about the school” in
September of 2020. (ECF No. 121, PageID.1727.) And
Schanz had actual notice of the pending procedures.
By early October, he had received the Notice itself and,
by his own description, elected to call the City and tell
them “I’m going to sue your asses off,” rather than file a
written appeal as the Notice instructs. (ECF No. 112-2,
PageID.1475.) Schanz received adequate notice in time to
contest the issues.
Nor does Schanz have a viable substantive due process
claim. “Substantive due process ‘prevents the government
from engaging in conduct that shocks the conscience or
34a
Appendix B
interferes with rights implicit in the concept of ordered
liberty.’” Prater v. City of Burnside, 289 F.3d 417, 431
(6th Cir. 2002) (quoting United States v. Salerno, 481 U.S.
739, 746 (1987)). “Substantive due process . . . serves the
goal of preventing governmental power from being used
for purposes of oppression, regardless of the fairness of
the procedures used.” Pittman v. Cuyahoga Cnty. Dep’t
of Child. & Fam. Servs., 640 F.3d 716, 728 (6th Cir. 2011)
(quoting Howard v. Grinage, 82 F.3d 1343, 1349 (6th Cir.
1996)). “Conduct shocks the conscience if it ‘violates the
“decencies of civilized conduct.”’” Range v. Douglas, 763
F.3d 573, 589 (6th Cir. 2014) (quoting Cnty. of Sacramento
v. Lewis, 523 U.S. 833, 846-47 (1998) (quoting Rochin v.
California, 342 U.S. 165, 172-73 (1952))). Viewing the facts
in the light most favorable to Schanz, Defendant Reitkerk’s
actions are not even close to the “shocks the conscience”
test. Mr. Reitkerk articulated a factual and legal basis
for the notice and provided notice to the record address.
(ECF No. 108-11, PageID.1359.) Defendant Reitkerk is
entitled to summary judgment on this claim.
3)
The Illegal Search Claim
The Fourth Amendment protects the “right of the
people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizure.”
U.S. Const. amend. IV. A search occurs when “a
government official invades an area in which ‘a person
has a constitutionally protected reasonable expectation
of privacy.’” Taylor v. City of Saginaw, 922 F.3d 328, 332
(6th Cir. 2019) (quoting Katz v. United States, 389 U.S.
347, 360 (1967) (Harlan, J., concurring)). To establish
35a
Appendix B
a Fourth Amendment search, one must establish “first
that a person exhibit an actual (subjective) expectation
of privacy and, second, that the expectation be one that
society is prepared to recognize as ‘reasonable.’” Katz,
389 U.S. at 361.
Schanz says that Defendant Weber’s entry into the
Property on July 28 violated the Fourth and Fourteenth
Amendments because Weber had no warrant. (ECF No.
112, PageID.1449.) The defense acknowledges there was
no warrant but asserts that Plaintiff had no reasonable
expectation of privacy in a vacant and derelict school
building, and that even if he did, the community caretaker
exception to the warrant requirement applies here. The
defense further argues that qualified immunity and
other doctrines apply to mandate summary judgment for
Defendants. The Court agrees with the defense.
a)
Reasonable Expectation of Privacy
In determining whether someone has a reasonable
expectation of privacy for Fourth Amendment purposes,
the Sixth Circuit applies a test weighing several factors.
Those factors are:
the person’s proprietary or possessory interest
in the place to be searched or item to be seized
.... whether the defendant has the right to
exclude others from the place in question;
whether he had taken normal precautions to
maintain his privacy; whether he has exhibited
a subjective expectation that the area would
36a
Appendix B
remain free from governmental intrusion; and
whether he was legitimately on the premises.
Shamaeizadeh v. Cunigan, 338 F.3d 535, 544-45 (6th Cir.
2003) (quoting United States v. King, 227 F.3d 732, 744
(6th Cir. 2000); see also United States v. Trice, 966 F.3d
506, 513 (6th Cir. 2020). Defendants do not contest Schanz’s
possessory interest nor that he could exclude others from
the building. (ECF No. 108, PageID.1171.) However,
they argue that he did not take adequate measures to
maintain the space as private. (Id., PageID.1172.) Between
April 2017 and August 2020, police department records
show thirteen separate incidents involving the old school
building. Officer Weber reported that neighborhood kids
entered the building through unsecured doors repeatedly.
(ECF No. 108-5, PageID.1293.) “What a person knowingly
exposes to the public, even in his own home or office, is
not a subject of Fourth Amendment protection.” Katz v.
U.S., 389 U.S. 347, 351 (1967). Officer Weber testified that
he had spoken with Schanz and that Schanz had told him
that “he intentionally leaves the windows open when there
is no rain expected because, according to him, with no
ventilation system(s), the building will get moldy (moldier
would be more appropriate) otherwise.” (ECF No. 108-7,
PageID.1308-09.) Schanz admitted to leaving ground floor
windows open. 5 (ECF No. 108-3, PageID.1253.)
5. Schanz has submitted an affidavit which contradicts this
testimony. A party “cannot create a genuine issue of fact sufficient
to survive summary judgment simply by contradicting his or her own
previous sworn statement.” Aerel, S.R.L., v. PCC Airfoils, L.L.C.,
448 F.3d 899, 907-08 (6th Cir. 2006) (quoting Cleveland v. Policy
Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999)).
37a
Appendix B
Schanz objects that many of the statements within
the police reports are hearsay. Police reports may be
admissible under the public records exception but only
so far as they “incorporate firsthand observations of the
officer.” Dortch v. Fowler, 588 F.3d 396, 403 (6th Cir.
2009). Schanz is correct that the statements by third
parties cannot be admitted for their truth under Fed. R.
Evid. 803(8). However, the reports also contain Defendant
Weber’s firsthand observations that he “located over a
dozen open windows” and that “many have locks that
are inoperable.” (ECF No. 108-6, PageID.1306.) He also
testified that he observed the gate to the old playground
“was standing wide open” and two teenagers playing
on the ground. (ECF No. 108-17, PageID.1430.) In fact,
Schanz himself testified that he told Defendant Weber
that he had “no problem” with the teenagers being
on the Property. (ECF No. 108-3, PageID.1252-53.)
Even ignoring the parts of the reports which record
accounts from third parties, the admissible statements
in the record are sufficient to establish the Property was
deliberately unsecured and routinely accessible to the
public. Moreover, the third-party reports are admissible
to the extent they demonstrate that public officials were
on notice of issues or potential issues at the Property,
which is in itself circumstantial evidence undercutting
any reasonable expectation of privacy.
Defendants also stress that the Property was not
Schanz’s residence but is, at best, a commercial property.
(ECF No. 118, PageID.1662). Because “the expectation
of privacy that the owner of commercial property enjoys
in such property differs significantly from the sanctity
38a
Appendix B
accorded to an individual’s home,” “the Government has
greater latitude to conduct warrantless inspections of
commercial property.” Dow Chem. Co. v. U.S., 476 U.S.
227, 237-38 (1986).
Here, in fact, the evidence—including Schanz’s own
admission that he left windows open and had no problem
with teenagers accessing the site—defeat any subjective
expectation of privacy and converts the Property to an
“open field” for Fourth Amendment purposes. To qualify
as an “open field” for the purposes of Fourth Amendment
protection, the area need be neither a literal field nor
an unfenced area. The Sixth Circuit has “held that the
following factors had no bearing on whether the property
was an open field: that the property was surrounded by
a fence and a tall hedgerow of cleared debris, that entry
onto the land could be made only through a locked gate,
that the land had undergone “extensive alteration and
development for one economic purpose or another and was
clearly ‘commercial property,’ ” and that the landowner
was present.” United States v. Mathis, 738 F.3d 719, 730
(6th Cir. 2013) (quoting United States v. Rapanos, 115 F.3d
367, 373 (6th Cir. 1997). The key question is simply whether
the property owner’s conduct before the litigation evinced
a subjective expectation of privacy that society is prepared
to accept. Here, Schanz repeatedly and deliberately left
his property unsecured such that local youth felt at liberty
to avail themselves of it. Schanz himself said he had no
problem with this, which is direct evidence he did not have
a subjective expectation of privacy. As in Mathis, Schanz
did not have a reasonable expectation of privacy and as
such, there was no Fourth Amendment Violation.
39a
Appendix B
b)
Qualified Immunity
Under the doctrine of qualified immunity, “‘government
officials performing discretionary functions generally are
shielded from liability from civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would
have known.’” Phillips v. Roane County, 534 F.3d 531, 538
(6th Cir. 2008) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). “As the qualified immunity defense has
evolved, it provides ample protection to all but the plainly
incompetent or those who knowingly violate the law.”
Malley v. Briggs, 475 U.S. 335, 341 (1986). Determining
whether the government officials in this case are entitled
to qualified immunity generally requires two inquiries:
“First, viewing the facts in the light most favorable to
the plaintiff, has the plaintiff shown that a constitutional
violation has occurred? Second, was the right clearly
established at the time of the violation?” Id. at 538-39
(citing Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th
Cir. 2006)); cf. Pearson v. Callahan, 555 U.S. 223 (2009)
(holding that the two-part test is no longer considered
mandatory; thereby freeing district courts from rigidly,
and potentially wastefully, applying the two-part test in
cases that could more efficiently be resolved by a modified
application of that framework). As discussed in the
previous section, Schanz had no reasonable expectation of
privacy based, among other things, on the fact that he had
no problem with teenagers accessing the Property. But
even if Plaintiff had such an expectation here, qualified
immunity would certainly protect Defendant Weber
because his actions did not violate a “clearly established”
40a
Appendix B
law. Mathias alone creates more than enough ambiguity to
support a reasonable officer’s conclusion that the Property
was subject to search without a warrant. But here, there
is even more.
i)
The Community Caretaker Exception
Defendants assert that Defendant Weber relied on
the community caretaker exception when he entered the
Property. Community caretaking describes police work
that is not related to crime. As the Sixth Circuit recently
described:
Much of an officer’s day-to-day work in truth
involves community service of a different
order. Officers help lost children return home,
find missing persons, rescue pets, deal with
domestic disputes before they get out of hand,
keep an eye on a home when the resident travels,
lock an unlocked door, arbitrate disagreements
between neighbors about loud music, respond
to health emergencies, check in on the elderly
or those facing addiction challenges on behalf
of their relatives, and help inebriates by
preventing them from placing others at risk
and by ensuring that they get home safely. Law
enforcement has served these watchman’s roles
long before the dawn of the Republic.
United States v. Morgan, No. 22-1445, 2023 WL 4175235,
at *2 (6th Cir. June 26, 2023) (internal citations and
quotations omitted). In Cady v. Dombrowski, the Supreme
41a
Appendix B
Court first acknowledged this role, describing actions that
are “totally divorced from the detection, investigation,
or acquisition of evidence relating to the violation of a
criminal statute.” 413 U.S. 433, 411 (1973). To be sure,
“the community caretaker exception does not provide the
government with refuge from the warrant requirement
except when delay is reasonably likely to result in injury
or ongoing harm to the community at large.” United States
v. Washington, 573 F.3d 279, 289 (6th Cir. 2009).
In Cady, the defendant, who appeared to be intoxicated,
was involved in a car accident. 413 U.S. at 436. He informed
the officers at the scene that he was a police officer from
a different jurisdiction. Id. Before letting the tow truck
take the car, officers looked for the defendant’s service
weapon, as they believed that officers were required by
regulation to carry it at all times. Id. They did not locate
the weapon and the car was towed to a private lot without
police guard. Id. The defendant was taken to a police
station and formally arrested for drunk driving. Id. One
of the officers returned to the car to try to locate the
service weapon, concerned about leaving a gun somewhere
unsecured. Id. at 437. During his more thorough search
of the car, he found a variety of blood-spattered items. Id.
The defendant was ultimately charged with murder. Id.
at 438. At issue before the Supreme Court was whether
the bloodied items and all the evidence stemming from
them (including an admission the defendant knew where
the body was and the body itself) needed to be suppressed
in the criminal case as a warrantless search and seizure.
Ultimately, the Court held in Cady that when the officer
was looking through the car, he was not investigating a
42a
Appendix B
crime but concerned for the safety of the general public
should the gun fall into the wrong hands. There was no
Fourth Amendment violation.
In Caniglia v. Strom, police officers entered a private
home to escort the plaintiff to a hospital for psychiatric
evaluation and seized his guns without a warrant and over
his express objections. 141 S. Ct. 1596, 1600 (2021). Here,
the Court concluded there was a Fourth Amendment
violation because the community caretaker exception did
not reach to warrantless searches of the home. Id. The
Court stressed the constitutional difference between
a car and a residence. Id. at 1598. Concurring Justices
noted that a community caretaking role might still
justify some entries to a home without a warrant, but
such circumstances were not present in the case. See 141
S. Ct. at 1600 (Roberts, C. J., concurring). To the extent
Caniglia limits the exception in cases involving homes, it
is inapplicable to this case involving a vacant commercial
property. It also came down more than a year after the
challenged entry here.
Neither the Supreme Court nor the Sixth Circuit
directly addressed how the exception might apply to
entry of an unoccupied commercial building that was the
subject of repeated public safety reports that required
police responses. Overall, the Circuit’s precedent 6 has
6. The Sixth Circuit very recently issued an opinion on the
community caretaker exception in United States v. Morgan, No.
22-1445, 2023 WL 4175235 (6th Cir. June 26, 2023), holding that
the exception did not apply where an officer, without investigating
further or taking any action to rouse the driver, opened the door of
43a
Appendix B
emphasized three factors in determining when the
exception applies. “The community-caretaking exception
applies most clearly when the action of the police is totally
divorced from the detection, investigation, or acquisition
of evidence related to the violation of a criminal statute.”
United States v. Lewis, 869 F.3d 460, 463 (6th Cir. 2017)
(internal quotations omitted). Secondly, the relative
constitutional protection afforded to the location of the
search, often noting that a car is afforded a lesser degree
of constitutional protection than a home. Id. Thirdly, the
cases often involve a concern that delay may result in some
harm to the general public. United States v. Washington,
573 F.3d 279, 289 (6th Cir. 2009). Some cases characterize
this last prong as a reasonableness analysis, weighing the
degree of the intrusion against the community’s interest.
See, e.g., Lewis, 869 F.3d at 464.
ii) Application to Defendant Weber
Here, the search was not made in furtherance of a
criminal investigation. The constitutional status of the
Property is both disputed and unsettled, as discussed
at length supra, but it certainly is not entitled to the
particular protections afforded to one’s home. The
record establishes that Defendant Weber was concerned
about the safety hazards posed by the Property based
on repeated public reports requiring police response.
Defendant Weber’s actions were likely protected by the
community caretaker exception.
a stopped but running car with the driver seemingly unconscious
at the at wheel. While this decision certainly suggests caution in
applying the exception going forward, any cautionary message came
long after Defendant Weber’s decision here.
44a
Appendix B
However, it is not necessary to make that holding
here. Rather, to apply qualified immunity, it is only
necessary to decide whether the constitutional right was
clearly established at the time the violation occurred.
Here, there was no such clearly established right. Neither
the Court nor the parties have identified a pre-entry
holding that precluded an officer from relying on the
community caretaker exception to enter an unoccupied
school building on the facts of record here. Officer Weber’s
own observations and reports from local children7 amply
supported a basis for public safety concern. The amount of
ink spilled in this case analyzing the Property’s potential
constitutional status is demonstration enough of the lack
of clarity. Under the community caretaker exception as
it stood in July 2020, it was not clearly established that
Defendant Weber needed a warrant to enter a vacant
structure frequently accessed by local youth to document
what he saw as an attractive nuisance and safety hazard.
Therefore, even assuming a constitutional infringement
occurred, Defendant Weber is entitled to qualified
immunity.
iii) Application to Defendants Mitchell &
Misner
Schanz also asserts individual claims against
Defendants Mitchell and Misner for allegedly improperly
supervising Defendant Weber. 8 To state a claim under
7. Reports from third parties are relevant and admissible to
establish Defendant’s state of mind in entering the property.
8. To the extent that Schanz sets out claims against Misner
and Mitchell in their official capacities, those are “analogous to a
45a
Appendix B
42 U.S.C. § 1983, a plaintiff must allege the violation of
a right secured by the federal Constitution or laws and
must show that the deprivation was committed by a person
acting under color of state law. West v. Atkins, 487 U.S. 42,
48 (1988); Street v. Corr. Corp. of Am., 102 F.3d 810, 814
(6th Cir. 1996). Because § 1983 is a method for vindicating
federal rights, not a source of substantive rights itself,
the first step in an action under § 1983 is to identify the
specific constitutional right allegedly infringed. Albright
v. Oliver, 510 U.S. 266, 271 (1994).
Schanz argues both Mitchell and Misner are liable
because when Defendant Weber asked what could be done
about the building, Mitchell indicated that the next time
that he was in the building, he should take photographs
of the condition. Defendant Misner was present during
the conversation but did not say anything.
Government officials may not be held liable for the
unconstitutional conduct of their subordinates under
a theory of respondeat superior or vicarious liability.
Ashcroft v. Iqbal, 556 U.S. 41, 47 (1957); Monell v. New
York City Dep’t of Soc. Servs., 436 U.S. 658, 691(1978);
Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009). A
claimed constitutional violation must be based upon active
unconstitutional behavior. Grinter v. Knight, 532 F.3d 567,
575-76 (6th Cir. 2008); Greene v. Barber, 310 F.3d 889,
899 (6th Cir. 2002). The acts of one’s subordinates are not
suit against the local entity,” Pineda v. Hamilton Cnty., Ohio, 977
F.3d 483, 494 (6th Cir. 2020) (citing Kentucky v. Graham, 473 U.S.
159, 166-67, 167 n.14 (1985)), and are therefore addressed under the
municipal liability section, infra.
46a
Appendix B
enough, nor can supervisory liability be based upon the
mere failure to act. Grinter, 532 F.3d at 576; Greene, 310
F.3d at 899; Summers v. Leis, 368 F.3d 881, 888 (6th Cir.
2004). A plaintiff must show that “each Government official
defendant, through the official’s own individual actions,
has violated the Constitution.” Iqbal, 556 U.S. at 676.
The Sixth Circuit has repeatedly summarized the
minimum required to constitute active conduct by a
supervisory official:
“[A] supervisory official’s failure to supervise,
control or train the offending individual is
not actionable unless the supervisor either
encouraged the specific incident of misconduct
or in some other way directly participated
in it.” Shehee, 199 F.3d at 300 (emphasis
added) (internal quotation marks omitted).
We have interpreted this standard to mean
that “at a minimum,” the plaintiff must
show that the defendant “at least implicitly
authorized, approved, or knowingly acquiesced
in the unconstitutional conduct of the offending
officers.”
Peatross v. City of Memphis, 818 F.3d 233, 242 (6th Cir.
2016) (quoting Shehee, 199 F.3d at 300, and citing Phillips
v. Roane Cnty., 534 F.3d 531, 543 (6th Cir. 2008)); see also
Copeland v. Machulis, 57 F.3d 476, 481 (6th Cir. 1995)
(citing Rizzo v. Goode, 423 U.S. 362, 375-76 (1976), and
Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984));
Walton v. City of Southfield, 995 F.2d 1331, 1340 (6th Cir.
47a
Appendix B
1993); Leach v. Shelby Cnty. Sheriff, 891 F.2d 1241, 1246
(6th Cir. 1989).
Schanz cannot show that Defendant Misner “implicitly
authorized, approved, or knowingly acquiesced” to Weber’s
allegedly unconstitutional entry into the Property. The
entire basis of such liability would be his presence during
the conversation where Mitchell suggested Weber take
pictures of the Property. Schanz did not depose Defendant
Misner, but Misner submitted an affidavit asserting
that he had no prior experience with the Property or
knowledge of its condition, and so did not participate in
the discussion. (ECF No. 108-4, PageID.1288.) Schanz
argues that his silence amounts to “ratification” of
Defendant Weber’s subsequent entry into the Property.
This theory is neither supported by the record nor by the
controlling case law in this circuit. Mitchell’s suggestion
that Weber take pictures of the Property the next time he
observed it was unsecured cannot be fairly characterized
as an order that Weber violate the law. Nor has Schanz
shown Misner’s so-called “ratification by silence” was
“a moving force in causing the constitutional violation.”
Feliciano v. City of Cleveland, 988 F.2d 649, 656 (6th
Cir. 1993) (internal quotations omitted). Misner’s silence
cannot be reasonably characterized as either the actual
or proximate cause of Schanz’s alleged injury. Nor is
Schanz’s argument that Misner knew or should have
known of Weber’s alleged “penchant for unconstitutional
behavior” availing. (ECF No. 127, PageID.2089.) None
of the incidents described in Schanz’s brief involve even
marginally similar facts. Schanz provides no authority to
support the suggestion that an alleged misconduct by an
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officer makes his superiors liable for future, unrelated, and
dissimilar deeds. Cf. Burgess v. Fischer, 735 F.3d 462, 478
(6th Cir. 2013) (holding that a failure-to-train theory of
municipal liability requires knowledge of insufficiency in
“this particular area” or of “similar claims.”) The Court
is aware of none. Misner is entitled to summary judgment
on this claim.
Defendant Mitchell is also not individually liable for
Officer Weber’s actions. Even assuming that Defendant
Weber’s entry into the building was improper, Mitchell
was not personally involved in entering the building.
Mitchell testified that he had no knowledge one way or the
other regarding whether a warrant would be necessary to
enter the building. (ECF No. 108-8, PageID.1323-1324.)
The conversation was in the context of Defendant Weber
describing frequent calls for him to be in the building.
Suggesting that he take photos the next time he was there
is not plausibly read as a direction to violate the law, even
if one assumes that Weber’s entry onto the Property for
the purpose of taking photos was a constitutional violation.
Therefore, Mitchell is entitled to summary judgment on
this claim. Finally, even if Misner and Mitchell weren’t
clearly entitled to summary judgment for the above
reasons, they would be entitled to qualified immunity for
the same reasons set forth supra for Defendant Weber.
c)
Municipal Liability
A local government such as a municipality or county
“cannot be held liable solely because it employs a
tortfeasor—or, in other words, a municipality cannot be
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held liable under § 1983 on a respondeat superior theory.”
Monell v. Dep’t. of Soc. Servs., 436 U.S. 658, 691 (1978).
Instead, a municipality may only be liable under § 1983
when its policy or custom causes the injury, regardless of
the form of relief sought by the plaintiff. Los Angeles Cnty.
v. Humphries, 562 U.S. 29, 35-37 (2010) (citing Monell,
436 U.S. at 694 (1974)). In a municipal liability claim, the
finding of a policy or custom is the initial determination
to be made. Lipman v. Budish, 974 F.3d 726, 747 (6th
Cir. 2020); Doe v. Claiborne Cnty., 103 F.3d 495, 509
(6th Cir. 1996). The policy or custom must be the moving
force behind the constitutional injury, and a plaintiff must
identify the policy, connect the policy to the governmental
entity and show that the particular injury was incurred
because of the execution of that policy. Turner v. City of
Taylor, 412 F.3d 629, 639 (6th Cir. 2005); Alkire v. Irving,
330 F.3d 802, 815 (6th Cir. 2003); Doe, 103 F.3d at 508-509.
A single act or decision, in appropriate circumstances,
“may qualify as an official government policy, though it
be unprecedented and unrepeated.” Holloway v. Brush,
220 F.3d 767, 773 (6th Cir. 2000). For a single decision to
qualify as a policy, the decision must have been directed
by someone who is a decisionmaker for the government
or who established governmental policy on that issue. See
Pembaur v. City of Cincinnati, 475 U.S.469, 481 (1986).
Furthermore, the decisionmaker must have “possesse[d]
final authority to establish municipal policy with respect
to the action ordered.” Id. “[W]hether an official had
final policymaking authority is a question of state law.”
Id. at 483. “The fact that a particular official—even a
policymaking official—has discretion in the exercise
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of particular functions does not, without more, give
rise to municipal liability based on an exercise of that
discretion.” Id. at 481-82. Instead, “[t]he official must also
be responsible for establishing final government policy
respecting such activity before the municipality can be
held liable.” Id. at 482-83.
Schanz alleges that the City of Otsego is responsible
for Officer Weber’s actions, as well as Defendants Misner
and Mitchell. Specifically, Schanz argues that Defendant
Mitchell had “final decision-making authority” and
ordered Officer Weber to illegally enter the Property.
(ECF No. 112, PageID.1455-56). Defendants counter
that even assuming a constitutional violation occurred,
Mitchell, as City Manager, did not have final decisionmaking authority. (ECF No. 108, PAgeID.1171-1173; ECF
No. 118, PageID.1666-1668.)
The Charter of the City of Otsego states that “The
Mayor shall be the chief executive of the city and shall
see that the ordinances thereof are enforced.” (ECF No.
108-18, PageID.1435.) The City Manager, the role Mitchell
occupied, “shall by virtue of his office be Commissioner
of Police, Commissioner of Streets, and Commissioner
of Water Works, and shall have the general supervision
and direction of the administrative operation of the city
government and shall supervise and direct the official
conduct of all appointive city officers and employees whom
he shall appoint or employ.” (Id.) But the City Manager
is supervised by and reports to the Mayor and the City
Commission. (Id.) Mitchell’s testimony supports this.
(ECF No. 108-8, PageID.1314.)
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Schanz argues that in practice, the City Manager
was the final policymaker, relying on the affidavits of two
former city officials - one former mayor and one former
city commissioner. Neither was in any position for the
city during the timeframe relevant to this case. Neither
individuals’ experience is relevant to this case. The City
Charter clearly shows that the City Manager’s decisions
were not “final and unreviewable” nor were they “not
constrained by the official polices of superior officials.”
Adair v. Charter Cty. Of Wayne, 452 F.3d 482, 493 (6th
Cir. 2006). Therefore, the City of Otsego is entitled to
judgment as a matter of law.
Conclusion
For the foregoing reasons, Defendants’ Motion for
Summary Judgment (ECF No. 107) is GRANTED and
Plaintiff’s Motion for Partial Summary Judgment (ECF
No. 111) is DENIED.
A separate judgment will issue.
Dated: July 14, 2023
/s/ Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE
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