865 F.2d 259 (6th Cir. 1988), 86-1776, Miller v. Kunze
| Citation | 865 F.2d 259 |
| Party Name | Leo H. MILLER and Agnes J. Miller, Plaintiffs-Appellants, v. Laurence KUNZE, et al., Defendants-Appellees. |
| Case Date | December 28, 1988 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Sixth Circuit |
Page 259
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA6 Rule 28 and FI CTA6 IOP 206 regarding use of unpublished opinions)
E.D.Mich.
AFFIRMED.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
Before BOYCE F. MARTIN, Jr. and BOGGS, Circuit Judges and THOMAS A. WISEMAN, Jr., Chief District Judge. [*]
PER CURIAM.
Plaintiffs, Leo and Agnes Miller, filed this civil rights action under 42 U.S.C. § 1983 against the County and City of Alpena and various Michigan officials. The Millers alleged that the defendants violated the Fourth, Fifth and Fourteenth Amendments to the Constitution by damaging their rental property in the course of ending a confrontation with an armed tenant, and by refusing to allow them to make repairs to the fire-damaged structure. The district court ruled in favor of the defendants on all claims raised, and the Millers now appeal. For the reasons discussed below, we affirm.
I
Plaintiffs own a parcel of land in Alpena, Michigan, on which was located a house and an accessory building that contained the Millers' upholstery business and served as their living quarters. In May 1980, the Millers leased the house, which they used as a rental property to Norbert and Gwendolyn Skiera. During the early morning hours of August 2, 1980, Officers Chalton, Wiser and Ludwiczak of the Alpena Police Department received a call that a domestic dispute was occurring at the residence of Norbert and Gwendolyn Skiera. When the officers arrived, Norbert Skiera burst from the house and, leveling a loaded shotgun at Officer Wiser, threatened to shoot the officers if they did not leave the property. After retreating some distance, the officers were able to defuse the situation by convincing Norbert to allow his wife to leave the house. The police then escorted Gwendolyn to a local motel where she remained until the next morning. While traveling to the motel, Gwendolyn advised the officers that her husband had other weapons with ammunition in the house. She also stated that her husband became violent when he was intoxicated, that he had been drinking since early morning, and that he had threatened her life.
Later that morning, Gwendolyn returned home to retrieve some of her clothing. When she emerged from the house, she met her husband, who was pulling into the driveway. She immediately ran to a neighbor's house, and a short time later Norbert came after her carrying a gun. The Skieras became embroiled in a heated argument, during which he demanded and received money from his wife. Norbert left the neighbor's house, but he returned on two more occasions, still holding the gun, to make additional demands on his wife. When he was refused entry on the third visit, he pounded on the door until he broke it. Frightened, the neighbors telephoned the Alpena Police Department and they responded to the call at about 3:40 p.m.
Norbert returned home before Officers Bell and Chalton arrived in separate patrol cars. When Officer Bell pulled into the Skiera driveway, he was fully aware of Norbert's prior threats against police earlier that morning, having read the police report and spoken with one of the officers on the scene. After briefly conferring with Gwendolyn, the officers returned to the Skiera house and requested that Norbert come out. Using profane language, Norbert refused to do so and threatened to kill the officers if they did not remove their vehicles from the driveway. The officers pulled their vehicles away from the house, and Officer Chalton proceeded to the police station to secure an arrest warrant for Norbert for the felonious assault on Officer Wiser earlier that day. In the meantime, Officer Bell requested further assistance and maintained surveillance of the house from behind his police car. A short time later, Chalton returned with verbal authorization from a state's attorney for the warrant, and Bell notified Skiera over the public address system of his vehicle that a warrant had been issued for his arrest.
Police Chief Kunze arrived with reinforcements at about 5:30 p.m. and took command of the situation. Several officers were instructed to take positions around the house, while others set up a security perimeter, keeping away the neighbors and other curious spectators. During the next several hours, police attempted to negotiate with Norbert Skiera to leave the house unarmed, but each time he refused. As time passed, Skiera became increasingly loud, profane and belligerant. He repeatedly screamed threats at the officers, informing them of his intention to use his weapons to kill those outside. According to Officer Anderson, on one occasion Norbert screamed, "I have an 1100 automatic and I'm coming out and I'll take you with me. And I'll take three or four of you. I'll blow your fucking heads off." Officer Soldenski recalled hearing Norbert say "to the effect that he had loaded guns in the house, to stay away, 'You may take me but I'll take a few cops with me.' "
After the second round, a fire developed in the front bedroom of the house. Police heard Norbert scream for help, but when they offered assistance he continued his threats and profanity. At approximately 10:30 p.m., Chief Kunze ordered fire officials summoned to the scene to enter the dwelling to extinguish the blaze. Several police officers accompanied them for protection. When they entered, the officers discovered Norbert Skiera lying dead in the hallway, an apparent victim of smoke inhalation.
The damage to the Miller house was extensive. On August 8, 1980, Larry Rettell, Building Inspector for the City of Alpena, informed the plaintiffs "once more" that they were residing in the accessory building in violation of the City's zoning ordinance which prohibited two residences on one lot. The letter continued.
Because of the violation that exists on the premises and that it is illegal to have two residences on one lot, a building permit for the reconstruction and repair of the fire damaged residence will not be issued until such time as the rear residence has completely been abandoned and returned to its original permitted use of an accessory building.
On April 28, 1981, the City's attorney notified the Millers that once the necessary building was vacated and the bathroom facilities were removed, making it uninhabitable for residential purposes, a permit would be issued to repair the fire-damaged house. After a brief time in Florida, however, the Millers moved back into the accessory building. They notified the City that they intended to live there until the house was repaired, at which time they would vacate the accessory building and no longer use it for residential purposes. On June 15, 1982, the City attorney demanded that the Millers demolish the house or face a future condemnation action. 1
On August 2, 1982, the Millers filed the present action in district court against the County and City of Alpena, the law enforcement officers participating in the Skiera confrontation, and Building Inspector Rettell. They alleged that their home was damaged extensively and thus unreasonably "seized" during the police confrontation with Skiera, and that the dwelling continued to be unreasonably "seized" by the City's refusal to allow them to repair it, in violation of the Fourth Amendment. They also asserted that the destruction of their home was a "taking" without just compensation in violation of the Fifth Amendment, and was a deprivation of property without due process of law in violation of the Fourteenth Amendment. Finally, the Millers alleged that the actions of the police officers and Building Inspector Rettell were "shockingly unjustified" in violation of substantive due process. After the parties engaged in discovery, the district court granted the defendants' motions for summary judgment on all the claims except the Fifth Amendment claim. The court ruled that the just compensation claim was not ripe for review, and granted the defendants' motion to dismiss
II
At the outset, we set forth the standard for reviewing the district court's decisions. Since we are concerned primarily with motions for summary judgment, our review is de novo: we must determine whether there is a genuine issue of material fact, viewing the evidence in the light most favorable to the non-moving parties, and whether the moving parties are entitled to judgment as a matter of law. Rule 56, Fed.R.Civ.P. We may not weigh the evidence, assess the credibility of witnesses or determine the truth of the matter at issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The movants have the initial burden of identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which they believe demonstrate the absence of a genuine issue of material fact, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). They need not support their motion with affidavits or other similar materials negating the nonmovants' claims, Ibid. Once the movants have met their initial burden, the nonmoving parties must go beyond the pleadings and by their own affidavits, or by the depositions, answers to interrogatories and admissions on file, designate specific facts showing that there is a genuine issue for trial, Id. at 324. "[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at...
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