Gardner v. Evans

• Citation: 811 F.3d 843
• Decision Date: 04 February 2016
• Docket Number: No. 15–12001.,15–12001.
• Parties: William Russell GARDNER, et al., Plaintiffs–Appellees, v. Jason EVANS, et al., Defendants, David Brand; Steve Maloney; Scott Sanford ; Gregg Scrimger, Defendants–Appellants. Henry Lee Holsey, Plaintiff–Appellee, v. Aaron Wieber, et al., Defendants, Scott Sandford, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

811 F.3d 843

William Russell GARDNER, et al., Plaintiffs–Appellees,

v.Jason EVANS, et al., Defendants,David Brand; Steve Maloney; Scott Sanford ; Gregg Scrimger, Defendants–Appellants.

Henry Lee Holsey, Plaintiff–Appellee,

v.Aaron Wieber, et al., Defendants,Scott Sandford, Defendant–Appellant.

No. 15–12001.

United States Court of Appeals, Sixth Circuit.

Argued: Dec. 9, 2015.

Decided and Filed: Feb. 4, 2016.

ARGUED:F. Joseph Abood, Office of the City Attorney, Lansing, Michigan, for Appellants. J. Nicholas Bostic, Lansing, Michigan, for Appellees. ON BRIEF:Mary Massaron, Plunkett Cooney, Bloomfield Hills, Michigan, for Appellants. J. Nicholas Bostic, Lansing, Michigan, for Appellees.

Before: BATCHELDER and GRIFFIN, Circuit Judges; CARR, District Judge.^*

OPINION

ALICE M. BATCHELDER, Circuit Judge.

The district court denied the defendants' motions for summary judgment on grounds of qualified immunity, holding that the defendants should have known that because the eviction notices they issued lacked specific information advising of the available appeals process, those notices were constitutionally inadequate. We must decide whether our decision in J.C. Flatford v. City of Monroe, 17 F.3d 162 (6th Cir.1994), clearly established that a notice of eviction must include a direct explanation of the post-deprivation appeals process. Because we do not think that Flatford clearly established such a rule, we REVERSE the decision of the district court.

I.

Between December 9, 2009, and May 8, 2010, William Gardner and seven of his fellow plaintiffs (collectively, "Tenants") were evicted from their respective homes in Lansing, Michigan, for alleged violations of the Lansing Housing and Premises Code. Jason Evans and the other defendants are the code compliance officers (collectively, "Inspectors") who inspected the buildings and issued the notices of eviction. In each instance, the evictions followed an inspection of the buildings conducted in conjunction with criminal drug investigations.

After the respective Inspector went through each of the homes, he summarized his findings in an eviction "red-tag" notice form, which he gave to the home's Tenant. Each red-tag was filled out as specified by the Lansing Housing and Premises Code § 1460.07. But none of the red-tags provided any information regarding the occupant's right to appeal the inspector's decision and receive an administrative hearing. Each red-tag stated:

You must contact the undersigned, no later than seven days before the compliance due date, to set up an appointment to meet at the structure (to verify that all corrections have been completed) or to acquire an authorized extension. Before the re-inspection you must obtain all required permits and have those repairs inspected and approved by the appropriate inspector.

All violations must be corrected with approved materials and methods. If you have any questions or concerns about complying within the time indicated, you may contact at (517) 483–4064 Monday through Thursday between the hours of 8–9 AM or 12–1 PM. [Name of the officer to contact.]

The red-tag notices failed to reveal that § 1460.12 of the Lansing Housing and Premises Code outlines a post-deprivation appeals process and directs that if an evicted occupant fails to file an appeal within twenty days after receiving a red-tag, the occupant waives the right to administrative review. Unaware of these requirements, none of the Tenants filed an appeal within the twenty-day period, and thus all of them inadvertently waived their right to an administrative review. Without recourse to any administrative remedy, the Tenants' sole option was to pursue a judicial remedy.

The only question presented to us in this appeal is whether the district court erred by denying the Inspectors' qualified immunity defense with respect to the constitutional adequacy of the notice given to the Tenants.

II.

To overcome the defense of qualified immunity, a plaintiff "must, at a minimum, offer sufficient evidence to create a genuine issue of fact, that is, evidence on which [a] jury could reasonably find for the plaintiff." DiLuzio v. Village of Yorkville, 796 F.3d 604, 608–09 (6th Cir.2015) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ) (internal quotation marks omitted). But where, as here, the facts surrounding a question of qualified immunity are not in dispute, "the district court's denial of qualified immunity is subject to de novo review." Thomas v. Cohen, 304 F.3d 563, 568 (6th Cir.2002). In determining whether a defendant is entitled to qualified immunity, we consider two questions: First, did the defendant violate a constitutional right? And second, were the contours of that right clearly established? Quigley v. Tuong Vinh Thai, 707 F.3d 675, 680–81 (6th Cir.2013).

A.

First, we address whether a constitutional violation occurred. The Tenants argue that the Inspectors violated their due process rights by failing to provide constitutionally sufficient notice of their ability to appeal the red-tag evictions. See Flatford, 17 F.3d at 168–69. In response, the Inspectors assert that the telephone number and the offer to answer questions was sufficient to satisfy the constitutional notice requirement. See Silvernail v. Cnty. Of Kent, 385 F.3d 601, 604–05 (6th Cir.2004). They also assert that, because the Lansing Housing and Premises Code was extant and available to the public, the Tenants had constructive notice of the appeals process. See City of West Covina v. Perkins, 525 U.S. 234, 240–41, 119 S.Ct. 678, 142 L.Ed.2d 636 (1999). The district court agreed with the Tenants, holding that our precedent in Flatford clearly established that direct and clear notice of an appeals process is necessary to satisfy the constitutional notice requirement.

"The essence of due process is the requirement that a person in jeopardy of serious loss be given notice of the case against him and opportunity to meet it."

Mathews v. Eldridge, 424 U.S. 319, 348, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (quoting Joint Anti–Fascist Comm. v. McGrath, 341 U.S. 123, 171–72, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring)) (internal quotation marks and alterations omitted). In cases where tenants are deprived of the right to occupy their homes for any length of time, "fundamental fairness requires notice in short order of the right to an administrative hearing, including the manner designated for obtaining timely review." Flatford, 17 F.3d at 169 (footnote omitted). These general principles are well-established, but there are no bright-line rules regarding how such notice must be given or how many details it must include. Rather, the sufficiency of notice requires a fact-based analysis that seeks to determine whether the notice is "reasonably calculated to inform the Plaintiffs of the allegations against them and provide[ ] a means for responding to the allegations." Silvernail, 385 F.3d at 605.

For purposes of deciding this case, we need not determine whether the red-tags provided by the Inspectors meet the constitutional notice standard that we have just outlined. Even if we assume, without deciding, that the Tenants are correct and that the red-tags were constitutionally infirm, the Tenants cannot satisfy the second prong of the qualified immunity analysis, namely, whether this constitutional notice requirement was clearly established.

B.

The district court held that "[a]t least since Flatford, it has been clearly established in this Circuit that meaningful post-deprivation review process is constitutionally required, and that direct, personal notice of such a process to affected individuals is also required." Gardner v. Evans, Nos. 1:12cv1338, 1:12cv914, 2015 WL 403166 at *18 (W.D.Mich. Jan. 28, 2015). We disagree.

The Supreme Court has stated that, in order for a qualified immunity defense to fail,

[t]he contours of the right [at issue] must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held

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