Engineering & Manufacturing Services, LLC v. Ashton, 072110 FED6, 09-3090

Docket Nº:09-3090
Opinion Judge:HELENE N. WHITE, Circuit Judge.
Party Name:ENGINEERING & MANUFACTURING SERVICES, LLC, Plaintiff -Appellant, v. CHESTER J. ASHTON; JOHN MCKENNA; DOUGLAS G. VESELSKY, Defendants-Appellees.
Judge Panel:BEFORE: BATCHELDER, Chief Judge, and WHITE, Circuit Judge, and GREER, District Judge.
Case Date:July 21, 2010
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

ENGINEERING & MANUFACTURING SERVICES, LLC, Plaintiff -Appellant,

v.

CHESTER J. ASHTON; JOHN MCKENNA; DOUGLAS G. VESELSKY, Defendants-Appellees.

No. 09-3090

United States Court of Appeals, Sixth Circuit

July 21, 2010

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

BEFORE: BATCHELDER, Chief Judge, and WHITE, Circuit Judge, and GREER[*], District Judge.

HELENE N. WHITE, Circuit Judge.

Plaintiff Engineering & Manufacturing Services, L.L.C. (EMS), appeals the denial of its motion for partial summary judgment and the grant of summary judgment to defendants in this 42 U.S.C. § 1983 action arising from a wall-to-wall administrative search of EMS's plant. The issue is whether defendants' search warrant was supported by administrative probable cause. We conclude that it was not, and therefore REVERSE the grant of summary judgment to defendants, and REMAND for further proceedings consistent with this opinion.

I. FACTS and PROCEDURAL HISTORY

EMS manufactures sheet metal parts for the automotive after-market in a 42, 000 square foot building located at 1120 East 152nd Street in Cleveland. Defendants are high-ranking Cleveland Fire Department officers: Chester J. Ashton is a Captain and a Battalion Chief, John McKenna a Captain and Deputy Fire Marshall, and Douglas G. Veselsky a Lieutenant and Chief Fire Inspector. Defendants are sued in their individual and official capacities.

EMS's complaint alleged that the affidavit in support of the search warrant pursuant to which defendants conducted the February 22, 2007 search of EMS's plant failed to present facts sufficient to constitute probable cause, and contained material, intentional and reckless falsehoods. EMS alleged that defendants' actions were deliberate and intentional violations of EMS's clearly established rights under the Fourth and Fourteenth Amendments.

A.

Ashton's notarized affidavit in support of the search warrant stated:

1.[] I am chief of the battalion that is closest to the property at 1124 East 152nd1 Street and my firefighters would be responsible for responding to a fire at this address if one were to occur.

2. Cleveland Codified Ordinance § 381.04 gives the right of entry to the Fire Chief or his authorized representatives during reasonable hours . . . "to examine and inspect for hazardous or dangerous conditions, equipment, materials, liquids, gases or accumulations; obstructions to or on fire escapes and other means of egress; and for the maintenance of fire protection equipment."

3. As part of my duties, I (with my local firefighters) conduct annual inspections of industrial sites to "get to know the property" the [sic] make certain there are no hazardous or dangerous conditions inside that would pose a threat to firefighters in the event of a fire.

4. On November 29, 2006 and December 22, 2006, I along with local firefighters, went to the premises located at 1124 East 152nd Street to conduct our annual interior inspection of the premises to determine if there are any hazardous or dangerous conditions in case there is a need to fight a fire at this large industrial building in the future. We were denied access to the premises on both occasions by the owner, Alexander Erdey.

. . . .

6. Based on my experience as a Battalion Chief and the foregoing facts, I believe it is likely that the conditions of the interior of the premises known as 1124 East 152ndStreet, are in violation of the City's Fire Code, and are or may become hazardous to the public health, safety or welfare.

B. EMS's Motion for Partial Summary Judgment on Liability

Before discovery began, EMS filed a motion for summary judgment on the issue of liability, asserting that the warrant application did not allege specific evidence of an existing fire-code violation; Chief Ashton's conclusory belief that unspecified code violations existed in EMS's building, without supporting facts, did not demonstrate administrative probable cause; and the warrant application did not permit the magistrate to find that the inspection was based on reasonable legislative or administrative standards, i.e., neutral criteria.

Defendants opposed EMS's motion, submitting with their opposition brief several documents not submitted to the issuing magistrate with the warrant application, including two affidavits and Cleveland Ordinance § 381.04. EMS moved to strike the exhibits defendants had not supplied to the magistrate. The district court overruled EMS's motion to strike, but did not consider the challenged exhibits, noting that it determined probable cause with reference to Ashton's affidavit alone.

C.

The district court concluded that Ashton's affidavit provided probable cause for the administrative warrant and denied EMS's motion for partial summary judgment:

[] The affidavit Judge Pianka reviewed provides the identity and qualifications of the affiant. Chester Ashton is the chief of the battalion closest to the industrial premises; and the firefighters he supervises would "be responsible for responding to a fire at this address if one were to occur." Reference is made to Cleveland Codified Ordinance § 381.04, 2 authorizing the Fire Chief or his representatives to enter during reasonable hours "to examine and inspect for hazardous or dangerous conditions. . ." In addition, paragraphs #3 and #4 mention the Fire Department's annual inspections of industrial sites, to "get to know the property" and "make certain there are no hazardous or dangerous conditions inside that would pose a threat to firefighters in the event of a fire." Considering the totality of the circumstances, therefore, probable cause for the administrative warrant existed: 1) Battalion Chief Ashton was competent to make the sworn declarations in the search warrant application; 2) a valid city ordinance authorized an administrative search, such as the one conducted here; and 3) annual inspections of industrial premises for fire safety concerns are reasonable and neutral. [R. 15, 4-6.]

D. Defendants' Motion for Summary Judgment

Defendants filed a motion for summary judgment on April 28, 2008, asserting that because EMS's complaint raised no issue other than the validity of the warrant, and the district court had ruled the warrant was supported by probable cause, they were entitled to summary judgment.

EMS filed a motion for leave to file its opposition brief instanter on May 29, 2008, one day after the May 28 deadline set by the district court's briefing schedule.3 Defendants did not object and the district court granted EMS's motion by a non-document order entered on May 30, 2008.

EMS's brief in opposition to defendants' motion argued that the warrant was not based on administrative probable cause (EMS had argued this in its own summary judgment motion); that the evidence established that the selection of buildings to be inspected and decisions on how often to inspect were left to the discretion of Fire Department officials; and that the search-warrant application failed to include a copy of a "neutral" inspection plan and failed to make any showing regarding how the EMS search fit the plan's neutral selection criteria.

Defendants filed a Reply brief to EMS's opposition brief on June 9, 2008. Citing Cleveland Ordinance § 381.04, see n.2, and Order 7-5, 4 defendants asserted that Cleveland's inspection plan was constitutional and that EMS was selected for an annual inspection pursuant to a neutral administrative plan. Defendants argued that Captain Otto sent monthly inspection sheets to the Battalions for buildings with water-based systems, and that EMS appeared on the Battalion Six list in 2006, 2007 and again in 2008. They further argued that Otto maintains lists of buildings to be inspected and that

[t]he goal is that by the end of the year each building utilizing a water-based fire suppression system will have been inspected. Each year – every building on the water-based list [such as Plaintiff's] is selected for inspection. Even if this Court should determine that the City's current plan give [sic] fire inspectors too much discretion[, ] the solution . . . is to require a warrant. [R. 22, p. 13-14.]

Defendants' reply brief and several exhibits attached thereto included data not provided to plaintiff in discovery. Defendants also submitted for the first time an affidavit of Fire Marshall Scott, which stated that in 2007, the Fire Division conducted inspections at 8, 449 of the 15, 515 addresses on file, and that the Division "does not claim to inspect every address, every year–but this is the goal we strive to achieve."

On June 11, 2008, EMS filed a motion seeking leave, until June 23, 2008, to respond to new data, a new affidavit and new arguments and theories defendants presented for the first time in their Summary Judgment Reply Brief. Defendants opposed the motion.

On June 16, 2008, court staff telephoned and advised EMS's counsel to re-file EMS's brief in opposition to defendants' summary judgment motion (i.e., advised that the brief had to be filed after the district court granted EMS leave to file the brief instanter). EMS's counsel re-filed the brief that day.

EMS filed its sur-reply brief on June 23, 2008 – at which time the district court had not ruled on its June 11 motion for leave to file a sur-reply brief. Defendants did not object and, on July 8, 2008, defendants moved for leave to respond to EMS's sur-reply, attaching their response.

E. District Court Strikes EMS's Brief in Opposition to Summary Judgment and Denies EMS's Motion for Leave to file Sur-Reply Brief

On July 15, 2008, the district court entered an order striking EMS's brief in opposition to defendants' summary judgment motion as untimely, denying EMS's motion for leave to respond to defendants' reply brief, and denying as moot defendants' motion for leave to reply to plaintiff's sur-reply brief.

On July 16,...

To continue reading

FREE SIGN UP