United States District Court, S.D. Ohio, Eastern Division
OPINION AND ORDER
KIMBERLY A. JOLSON, UNITED STATES MAGISTRATE JUDGE.
matter, in which the parties have consented to the
jurisdiction of the Magistrate Judge pursuant to 28 U.S.C.
§ 636(c) (Docs. 15-16, 52), is before the Court on
Defendant Saltlick Township Trustees' Motion for Summary
Judgment. (Doc. 90). For the reasons that follow, the Motion
dispute is over land. Plaintiffs Jeffrey and Amy Friend live
outside of Columbus in Grove City but own twenty-four acres
of property in Saltlick Township, Perry County, Ohio. (Doc.
102 9:9-25). The property has been in Mr. Friend's family
for over 100 years, and he visits the property often to hike,
birdwatch, and hunt. (Id., 17:1-9, 135:1-4, Doc.
100-1, ¶ 3; Doc. 102, 21:13-22:2, 100-1, ¶ 4).
most weekdays, Mr. Friend was working in Columbus on October
4, 2017. But he received an unexpected call from one of his
Perry County neighbors. The neighbor reported that a group of
men were on Mr. Friend's property with a bulldozer. (Doc.
100-1, ¶ 7). Mr. Friend called the Perry County
Sheriff's Office to report the incident and then hastily
left work to travel to Perry County. (Id.; Doc. 102,
69:6-17). While Mr. Friend was en route, Deputy Cody Palmer
called him. Mr. Friend testified that Deputy Palmer informed
him during this conversation that what was happening on
Plaintiffs' property “was a civil matter”
and, if Mr. Friend tried to stop the construction, he would
be arrested. (Doc. 102, 93:3-8).
Mr. Friend arrived at his property, he saw that it had been
marked with flags, and Deputy Palmer was on site.
(Id., 69-70:25). Mr. Friend testified that Deputy
Palmer again told him not to interfere because the county
engineer had approved the construction. (Id.,
74:8-14, 80:4-8). Lenn Adams, who works for Defendant Ohio
Mulch Supply, Inc. (“Ohio Mulch”), was there,
too. In 2010, the Friends and Ohio Mulch became neighbors of
sorts when Jim Weber, the former president of Ohio Mulch, and
New Lexington Tree Farm, LLC, purchased roughly 1, 000 acres
of land to the north of Plaintiffs' property. (Doc. 102,
57:11-22; Doc. 99-1, 13:9-14:15). New Lexington Tree Farm
(“NLTF”) has no employees and serves simply as a
holding entity for the property. (Doc. 99-1, 13:9-14:3,
22:4-9). Ohio Mulch is a landscape supply company with 25
locations and production facilities throughout the country.
Friend testified that Mr. Adams told him that the Saltlick
Township Trustees (the “Trustees”) and the county
engineer gave Ohio Mulch permission to build a road. (Doc.
102, 75:3-6). According to Mr. Friend's testimony, Mr.
Adams explained how Ohio Mulch came to be there that day with
a bulldozer: Surveyor Kevin Cannon surveyed the property and
determined that a preexisting public road, Township Road 221,
once ran north and south through Plaintiffs' property.
(Id., 76:23-77:11). Mr. Cannon was also at the
scene. And Mr. Friend recalls Mr. Cannon telling him that he
“guessed” and then flagged the location of
Township Road 221. (Id., 77:5-11; 132:8-12; Doc. 97,
111:10-19). Incredulous, Mr. Friend demanded proof of
Township approval. (Doc. 102, 78:10-11). To satisfy Mr.
Friend, Mr. Adams drove to Saltlick Township Trustee James
Denny's house and brought him to the property.
(Id., 78:12-14). Mr. Friend testified that Mr. Denny
approved the construction. (Doc. 102, 78:17-24). At that
point, Ohio Mulch employees cleared trees from the property
and paved the road (“the Road”) that is the basis
for this lawsuit. (Doc. 99-1, 31:18-24).
filed the instant lawsuit against Defendants NLTF, Ohio
Mulch, Perry County Sheriff William Barker (in his official
capacity), Deputy Cody Palmer (in his personal capacity), and
Saltlick Township Trustees (“the Township”).
(Doc. 19). The Court dismissed Sheriff Barker from the
lawsuit on September 11, 2018, and dismissed two of
Plaintiffs' state law claims roughly three months later.
(Doc. 60). The parties then engaged in discovery as well as
settlement discussions. Plaintiffs settled first with Deputy
Palmer, on May 23, 2019, (Doc. 86), and are currently
finalizing their settlement with NLTF and Ohio Mulch, (Doc.
Plaintiffs' claims against the Township remain. These
claims include: a § 1983 claim for a violation of their
Fifth Amendment rights (Count I), a § 1983 claim for a
violation of their Fourteenth Amendment substantive due
process rights (Count II), a § 1983 claim for a
violation of their Fourteenth Amendment procedural due
process rights (Count III); a claim for declaratory judgment
under 28 U.S.C. § 2201 (Count XI), and a claim for
declaratory judgment under 28 U.S.C. § 2721.02 (Count
XII). The Township has moved for summary judgment on all
claims, and the motion is ripe for review. (See
Docs. 90, 100, 111).
STANDARD OF REVIEW
judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). The
party seeking summary judgment bears the initial
“responsibility of informing the district court of the
basis for its motion, and identifying those portions”
of the record that demonstrate “the absence of a
genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The burden then
shifts to the nonmoving party to “set forth specific
facts showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986). “The evidence of the nonmovant is to be
believed, and all justifiable inferences are to be drawn in
his favor.” Id. at 255. (citing Adickes v.
S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)). A
genuine issue of material fact exists if a reasonable jury
could return a verdict for the nonmoving party.
Anderson, 477 U.S. at 248; see also Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986) (defining “genuine” as more than
“some metaphysical doubt as to the material
facts”). 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.” Anderson, 477 U.S. at 251-52.
front, the Court must address one of the Township's
central arguments. It repeatedly emphasizes that
Plaintiffs' claimed harm is not simply the building of a
road. Instead, the Township explains Plaintiffs' alleged
harm as the building of a road where none had previously
existed under the guise of it being Township Road 221.
(See, e.g., Doc. 90 at viii, 6, 10-11; see
also Doc. 111 at 2, 18). The Township draws this
distinction to make alternative arguments. First, the
Township argues that if the Road is in fact Township Road
221, then, at most, the Trustees approved maintenance on one
of its roads-and the Township had every right to do so.
(See, e.g., Doc. 90 at 1, 10-11; 18; see
also Doc. 111 at 2, 8-9, 14-16, 23-25). Alternatively,
if the Road turns out to be Plaintiffs' property (and not
Township Road 221), then there was no taking because, in that
scenario, a private entity built a road on private property.
(See, e.g., Doc. 90 at 1, 11, 14; see also
Doc. 111 at 2, 24).
this argument is the result of an overly narrow reading of
the Complaint or simply clever lawyering, the Township has
misconstrued the nature of Plaintiffs' claimed harm. The
heart of Plaintiffs' alleged constitutional injury is the
Township's taking of private property for a purely
private purpose. (See generally Doc. 19). Any
attempt to whittle down that harm is unpersuasive. As
explained below, the record is inconsistent as to both the
location of Township Road 221 and the Township's
involvement in the construction. In disclaiming involvement
with the Road's construction, while at the same time
asserting that the Road is its property, the Township has not
clarified matters in its favor. To the contrary, the
Township's arguments confirm that important factual
to its more substantive legal arguments, the Township makes
two primary arguments in support of summary judgment: (1)
There was no “government action” for which it
could be held liable under 42 U.S.C. § 1983; and (2)
Plaintiffs have no property interest in the Road because it
is a Township Road. (See generally Doc. 90).
According to the Township therefore, Plaintiffs' takings
and due process claims cannot withstand summary judgment.
(See id.). The Court will first address, as a
threshold matter, municipal liability under § 1983
before turning to the merits of Plaintiffs'
1983 does not itself create any constitutional rights,
” rather it creates an avenue to pursue independent
constitutional guarantees. Braley v. City of
Pontiac, 906 F.2d 220, 223 (6th Cir. 1990). To state a
claim under § 1983, a plaintiff must set forth facts
that establish: (1) the deprivation of a right secured by the
Constitution or laws of the United States; (2) caused by a
person acting under the color of state law. Harris v.
Circleville, 583 F.3d 356, 364 (6th Cir. 2009) (citation
the government actor is a municipality, like the Township in
this case, a plaintiff must show even more. First, the
plaintiff must demonstrate that the injury suffered was a
direct result of the municipality's official policy or
custom. Monell v. Dep't of So. Servs. of New
York, 436 U.S. 658, 694-95 (1978). In other words, a
municipality cannot be held liable for the constitutional
torts of its employees on a theory of respondeat
superior. Id. at 691. But a policy or custom
need not always be formal or written to be official. In
certain circumstances, where a municipal policymaker's
“edicts or acts may fairly be said to represent
official policy, ” Ford v. Cty. of Grand
Traverse, 535 F.3d 483, 495 (6th Cir. 2008) (quotation
marks and citation omitted), “a single decision”
by that policymaker may bind the municipality, Pembaur v.
City of Cincinnati, 475 U.S. 469, 480 (1986).
plaintiff must also show causation. To do so, the record must
reflect an “affirmative link” between the
municipal policy and the alleged constitutional violation
such that the municipal policy was “the moving
force” behind the alleged violation. Heyerman v.
Cty. of Calhoun, 680 F.3d 642, 648 (6th Cir. 2012)
(quotation marks and citation omitted).
the above standard here, the Court's inquiry is twofold.
It must first determine whether Plaintiffs have identified
either a Township policy/custom or a Township policymaker,
and if so, whether a reasonable juror could find that such a
policy or policymaker caused Plaintiffs' alleged
Official Policy/Custom/Final Policymaker
Township's argument is simple. It insists it had nothing
to do with the Road's construction and that Ohio Mulch
performed the work on its own and for its “own
benefit.” (Doc. 90 at viii.). Put simply, its theory is
that, because a private entity constructed the Road, the
Township cannot be held liable under § 1983.
response, Plaintiffs make three primary arguments: first, the
Township has an official policy with respect to its roads;
second, Township Trustees are final policymakers; and third,
in failing to investigate the work done on the Road, the
Trustees ratified the Township's unconstitutional
conduct. (Doc. 100 at 7-13).
Plaintiffs assert that the Township's official policy is
that “the Driveway is Saltlick Township Road
221.” (Doc. 100 at 7-10). This argument reflects a
misunderstanding of the meaning of “official
policy” for purposes of § 1983 liability. There is
no doubt that the Township has official policies regarding
its roads and that, with those policies, come corresponding
responsibilities. But to succeed on an official policy/custom
claim, Plaintiffs must identify either “an
unconstitutional decision of a legislative body, ”
Sweat v. Butler, 90 F.Supp.3d 773, 780 (W.D. Tenn.
2015), or a “relevant practice” that “is so
widespread as to have the force of law, ”
Ford, 535 F.3d at 495-96 (quotation marks and
citation omitted). Plaintiffs have not done this. Instead,
they simply rely on the Township's general duty to
maintain its roads. (See, e.g., Doc. 100 at 8-9
(explaining that Ohio law requires Township Trustees to
maintain and control Township ...