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Branham v. Gienger

August 21, 2006


The opinion of the court was delivered by: Judge Gregory L. Frost

Magistrate Judge Kemp


The motion for summary judgment filed by Defendants Jack Gienger ("Gienger"), Allison Terry ("Terry"), Chris Forshey ("Forshey"), and City of Pataskala ("Pataskala") is currently ripe for consideration. (Doc. # 17, Doc. # 20). The Court finds the motion to be well-taken and therefore GRANTS the same. (Doc.# 17).


Plaintiff Thomas Branham, Sr. ("Branham") is an Ohio resident who founded Plaintiff Branham Sign Company, Incorporated ("Sign Company"). (Branham Aff. ¶ 3; Doc. # 1 ¶ 1). As the name indicates, the Sign Company creates large signs for businesses. (Branham Aff. ¶ 10; Doc. # 20 at 1-2). The Sign Company is located in Pataskala, Ohio and is therefore located within the jurisdiction of the Court. (Doc. # 1 at ¶ 2).

Gienger was Pataskala's code enforcement officer during the time relevant to the instant matter. (Gienger Aff. ¶ 2, 3). That position required Gienger to enforce Pataskala's Ordinances regarding "collection and storage of junk and other materials and debris on property that create[d] an unsightly condition or a nuisance or harbor for rats, rodents or insects or a health hazard to the community." Id. at ¶ 3.

Terry is Pataskala's Director of Planning. (Terry Aff. ¶ 2). No job description is contained within her affidavit or motion. Terry is Gienger's supervisor. (Doc. # 1 ¶ ¶ 3, 11). Forshey is Pataskala's Chief of Police. (Doc. # 1 ¶ 3). Branham sues Gienger, Terry, and Forshey ("individual defendants") in their individual and official capacities. (Doc. # 1 ¶ 3).

The Sign Company often stored large or uncompleted signs in the land adjacent to the company's office due to lack of space inside the building. (Branham Aff. ¶ 10). On September 8, 2004, Gienger completed a criminal complaint ("Pataskala Complaint") against "Thomas E. Branham-Branham Sign Co. Inc." in the Pataskala Mayor's Court. (Rox Aff. Ex. 1). The Pataskala Complaint stated that on August 4, 2004:

Thomas E. Branham-Branham Sign Co. Inc. did unlawfully maintain junk drums, crates, wood, boxes, papers, trash, plastic, metal, motor vehicle parts, manufacturing waste or by-products so as to create an unsightly condition or to create a nuisance or create a harbor for rats or rodents or insects or create a health hazard to the community contrary to section 521.12(b), Pataskala City Ordinance, a misdemeanor of the minor degree. This crime is commonly known as junk yard and collection center prohibited.

Id. The Complaint and Summons ordered Branham to appear in the Pataskala Mayor's Court on October 10, 2004. Id. That document indicated that Brenda Rox ("Rox"), the Clerk of the Mayor's Court, mailed the Complaint and Summons to Branham by certified mail. Id. The certified mail return receipt indicated that the document was received on September 22, 2004. (Rox Aff. ¶ 4).

October 10, 2004 was a Sunday; consequently, the Mayor did not conduct court that day. (Branham Aff. ¶ 8). However, the Mayor did conduct Court on October 1, 2004 and Branham did not appear. (Rox Aff. ¶ 7). As such, Magistrate John Berryhill ("Berryhill") issued a warrant for Branham's arrest. Id.

Pataskala police contacted Branham's family member when attempting to locate Branham to execute the warrant. (Branham Aff. ¶ 12). When Branham learned of the warrant, he contacted Forshey. Id. at ¶ 13. The next day, December 21, 2004, Berryhill vacated the warrant and Branham was not arrested. (Rox Aff. ¶ 8 & Ex. 5).

Branham filed the instant Complaint on June 1, 2005. (Doc. # 1). He asserts claims against Gienger, Terry, Forshey, and Pataskala. Id. Specifically, Branham asserts that the Defendants violated 42 U.S.C. § 1983 by violating his rights to due process, equal protection, and freedom from cruel and unusual punishment. Id. Branham also maintains that Pataskala City Ordinance 521.12(b) is void for vagueness under the Fifth and Fourteenth Amendments to the United States Constitution. Id. Lastly, Branham asserts a state law malicious prosecution claim. Id. Defendants deny each of Branham's claims and move for full summary judgment. (Doc. # 17).


Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The Court must therefore grant a motion for summary judgment if the nonmoving party who has the burden of proof at trial fails to make a showing sufficient to establish the existence of an element that is essential to that party's case. See Muncie Power Prods., Inc. v. United Techs. Auto., Inc., 328 F.3d 870, 873 (6th Cir. 2003) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).

In viewing the evidence, the Court must draw all reasonable inferences in favor of the nonmoving party, which must set forth specific facts showing that there is a genuine issue of material fact for trial. Id. (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)); Hamad v. Woodcrest Condo. Ass'n, 328 F.3d 224, 234 (6th Cir. 2003). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Muncie, 328 F.3d at 873 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Consequently, the central issue is " 'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.' " Hamad, 328 F.3d at 234-35 (quoting Anderson, 477 U.S. at 251-52). However, in ruling on a motion for summary judgment, "a district court is not ... obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim." InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989).



At the outset, the Court is compelled to comment upon the parties' absolute failure to mention the statute at issue, discuss the elements necessary for establishing claims under that statute, and to analyze applicable case law. (Doc. # 17, Doc. # 20). The parties would be ...

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