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Friend v. New Lexington Tree Farm, LLC

United States District Court, S.D. Ohio, Eastern Division

September 5, 2019

JEFFREY FRIEND, et al., Plaintiffs,
NEW LEXINGTON TREE FARM, LLC, et al., Defendants.



         This 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 is DENIED.

         I. BACKGROUND

         This 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).

         Like 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).

         When 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.

         Mr. 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).

         Plaintiffs 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. 114).

         Only 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).


         Summary 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.


         Up 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).

         Whether 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 disputes remain.

         Shifting 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' constitutional claims.

         A. Municipal Liability

         “Section 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 omitted).

         When 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).

         Next, a 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).

         Applying 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 constitutional violation.

         i. Official Policy/Custom/Final Policymaker

         The 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.

         In 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).

         1. Official Policy/Custom

         First, 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 ...

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