Banks v. City of Whitehall

• Citation: 344 F.3d 550
• Decision Date: 24 September 2003
• Docket Number: No. 01-4155.,01-4155.
• Parties: Stewart BANKS; Bambi Motel, Inc.; Richard H. Turner; P.T. Properties, Inc., Plaintiffs-Appellants, v. CITY OF WHITEHALL; Dennis J. Fennessey; John Wolf; Charles D. Underwood; Cathy Crandall; Tim Tilton, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

344 F.3d 550

Stewart BANKS; Bambi Motel, Inc.; Richard H. Turner; P.T. Properties, Inc., Plaintiffs-Appellants, v. CITY OF WHITEHALL; Dennis J. Fennessey; John Wolf; Charles D. Underwood; Cathy Crandall; Tim Tilton, Defendants-Appellees.

No. 01-4155.

United States Court of Appeals, Sixth Circuit.

Argued: August 7, 2003.

Decided and Filed: September 24, 2003. Pursuant to Sixth Circuit Rule 206

Ronald B. Noga, (argued and briefed), Weltman, Weinberg & Reis, Columbus, OH, Daniel J. Igoe, Columbus, OH, Alba L. Whiteside, Whiteside & Whiteside, Bexley, OH, for Plaintiffs-Appellants.

Steven Lee Smith (argued and briefed), Smith & Colner, Columbus, OH, for Defendants-Appellees.

Before: BATCHELDER and ROGERS, Circuit Judges; RUSSELL, District Judge.^*

OPINION

ALICE M. BATCHELDER, Circuit Judge.

The plaintiffs appeal the district court's order granting summary judgment to the defendants in this action brought pursuant to 42 U.S.C. § 1983, claiming that the defendants, in the course of strictly enforcing local building and fire codes in the city, took the plaintiffs' property for public use without just compensation and enforced the law selectively in violation of the Fifth and Fourteenth Amendments. The district court granted the defendants' motion for summary judgment on several alternative grounds. First, that the plaintiffs' claims are barred by a two-year statute of limitations; second, that their claims are barred by both claim preclusion and issue preclusion; third, that their inverse condemnation and takings claims are not ripe for review pursuant to principles set forth in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985); fourth, that the individual defendants are entitled to immunity; and finally, that all of their claims are without merit.

The plaintiffs do not challenge the district court's holding that their takings and inverse condemnation claims are not ripe, and we need not address those claims on appeal. Ewolski v. City of Brunswick, 287 F.3d 492, 516-17 (6th Cir.2002). Because we conclude that the remaining claims are all barred by the applicable statute of limitations, we affirm the judgment of the district court without reaching the alternative bases of the district court's ruling.

Factual Background

The plaintiffs in this action are the Bambi Motel, Inc. and its owner, Stewart Banks, and P.T. Properties, Inc. and Richard Turner, the owner and operator, respectively, of Robinwood Trailer Park and two other commercial buildings. All of these properties are located in the City of Whitehall, Ohio. The allegations in this § 1983 action have their genesis in the city's campaign of strict enforcement of its fire and building codes in order to force certain businesses that were in violation of those codes to shut down, either until the violations could be remedied, or permanently. The Bambi Motel, Robinwood Trailer Park and the P.T. Properties commercial buildings were targets of this campaign.

The City filed an action in the Environmental Division of the Municipal Court in Franklin County, Ohio, on November 22, 1995, against Banks and the Bambi Motel, alleging numerous building code, fire code and licensing law violations, as well as seeking an injunction to abate a public nuisance allegedly resulting from drug trafficking, prostitution and other criminal activity occurring at the motel. On April 10, 1996, Banks and the Bambi Motel stipulated to a permanent injunction, based on stipulated findings of violations of the law, requiring that by July 9, 1996, Banks would have either (1) razed the structures comprising the motel or contracted to have it razed, or (2) sold the property or entered into a binding contract with a real estate broker in a good faith effort to sell the property. The stipulated injunction required that on July 9, 1996, if the structures comprising the motel were still standing, they would be closed pending demolition or sale. Eventually, after two contempt motions and several hearings, the court found that Banks and the motel were in contempt and ordered the motel razed. The appellate court held that Banks and the motel were bound by their stipulations, and the motel was then demolished.

After finding the Robinwood Trailer Park and one of the P.T. Properties buildings in violation of various code provisions, the City filed an action against Turner and P.T. Properties on November 22, 1996, in the Environmental Division of the Franklin County Municipal Court, seeking to close the trailer park and to demolish the building. Turner made the repairs necessary to bring both properties into compliance, and, on August 29, 1997, the action was dismissed.

The plaintiffs filed this action in the district court on October 18, 1999, against the City of Whitehall and various of its officials, in their official and individual capacities, complaining that their actions had been undertaken in an effort to drive the plaintiffs out of business; that these actions constituted inverse condemnation and takings without just compensation; that the defendants had selectively enforced the building and fire codes against these plaintiffs and thereby worked a taking without just compensation and a violation of the Equal Protection Clause of the Fourteenth Amendment; and that the plaintiffs were entitled to injunctive relief. The district court granted summary judgment to the defendants, and this timely appeal followed.

Analysis

We review de novo the district court's holding that the plaintiffs' claims were filed outside of the applicable statute of limitations. Tolbert v. Ohio Dep't of Transp., 172 F.3d 934, 938 (6th Cir.1999).

In this appeal, the plaintiffs do not contend that they filed this section 1983 action within two years of the defendants' allegedly unconstitutional conduct. The plaintiffs' sole argument pertaining to the statute of limitations is that "Browning v. Pendleton, ... which establishes a two-year (2) statute of limitations for 42 USC § 1983 claims is contrary to Ohio law and should be overruled with respect to § 1983 claims arising in Ohio." The plaintiffs have no legal basis whatsoever for advancing this argument in this court.

In 1985, the Supreme Court held that section 1983 claims were best characterized as tort actions for the recovery of damages for personal injuries and federal courts must borrow the statute of limitations governing personal injury actions in the state in which the section 1983 action was brought. Wilson v. Garcia, 471 U.S. 261, 275-76, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). Four years later, in Owens v. Okure, 488 U.S. 235, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989), the Supreme Court refined its Wilson holding, and declared that in a state with more than one statute of limitations for personal injury actions, the state's residual or general statute of limitations governing personal injury actions is to be applied to all section 1983 actions brought in that state. Id. at 249-50. The ink was hardly dry on Okure when this circuit, sitting en banc, decided Browning v. Pendleton, 869 F.2d 989 (6th Cir.1989). Noting that in Okure, the Supreme Court had "unanimously held that when a state, like Ohio, has multiple statutes of limitation for personal injury actions, the appropriate state statute of limitations to borrow for claims brought under 42 U.S.C. § 1983 is the residual or general personal injury statute of limitations," id. at 991, we held that "the appropriate statute of limitations for 42 U.S.C. § 1983 civil rights actions arising in Ohio is contained in Ohio Rev.Code Ann. § 2305.10, which requires that actions for bodily injury be filed within two years after their accrual." Id. at 992.

Not only did we determine en banc in Browning that a two-year statute of limitations applies to section 1983 actions, but in two later cases, LRL Properties v. Portage Metro Housing Authority, 55 F.3d 1097, 1105 (6th Cir.1995), and Kuhnle Brothers, Inc. v. County of Geauga, 103 F.3d 516, 519-20 (6th Cir.1997), we squarely rejected attempts to get around Browning. As we noted in LRL Properties, "[i]t is the well-settled law of this Circuit that `[a] panel of this Court cannot overrule the decision of another panel. The prior decision remains controlling authority unless an inconsistent...