Brkic v. Cleveland

• Decision Date: 26 November 1997
• Docket Number: No. 72724,72724
• Parties: BRKIC, Appellant, v. CITY OF CLEVELAND et al., Appellees. *
• Court: Ohio Court of Appeals

Page 271

124 Ohio App.3d 271

706 N.E.2d 10

BRKIC, Appellant, v. CITY OF CLEVELAND et al., Appellees. ^*

No. 72724.

Court of Appeals of Ohio,

Eighth District, Cuyahoga County.

Decided Nov. 26, 1997.

Morscher & Straka, and Roy C. Morscher, Cleveland, for appellant.

Sharon Sobol Jordan, Cleveland Director of Law, and John W. Monroe, Assistant Director of Law, Cleveland, for appellees.

PER CURIAM.

Plaintiff-appellant, Dushan Brkic ("appellant"), appeals from the grant of summary judgment in favor of defendants-appellees, the city of Cleveland and Mayor Michael R. White ("Cleveland"), in a suit for recompense for damage done to appellant's property by the police while executing a search warrant.

Appellant assigns the following error for review:

"The trial court erred in finding that there were no genuine issues of material fact and abused its discretion by granting summary judgment in favor of the City Of Cleveland as a matter of law."

Finding the appeal to have merit, we reverse the judgment of the trial court.

I

In 1992, appellant filed a complaint against Cleveland, Mayor White, and various other defendants, alleging a conspiracy by the defendants to defraud appellant of his property, waste, and an unlawful taking of property without due process for compensation. The trial court granted the defendants' motion for summary judgment. Appellant appealed that judgment to this court, which reversed the trial court in Brkic v. Cleveland (1995), 100 Ohio App.3d 282, 653 N.E.2d 1225. This court held that the trial court abused its discretion by refusing to grant appellant leave to amend his complaint to add a count that the defendants' conduct was an unreasonable, arbitrary, and/or a capricious exercise of police power; that the trial court erred in failing to conduct an in-camera inspection of documents requested by appellant in discovery; and that appellant set forth genuine issues of material fact related to an unconstitutional taking of property. The case was remanded to the trial court. Appellant later voluntarily dismissed the action.

On April 25, 1996, appellant refiled the case against Cleveland and Mayor White. In the complaint, appellant averred that he is the owner of a two-family home located at 1955 West 58th Street in Cleveland. Tenants rented both units, which were in good repair. On May 25, 1992, the Cleveland Police executed a search warrant at the downstairs unit of the residence. The property was damaged by the police officers breaking into walls, smashing toilet reservoirs, sinks, tubs, and kitchen cabinets, cutting wires, and removing copper lines.

Following the raid, the Cleveland Police contacted the city housing inspectors, who examined the house and found numerous violations. Appellant received notices of some violations, which were dated June 3, 1992. Appellant was ordered to correct the violations by June 4, 1992. The property was condemned by Cleveland. Appellant received estimates from contractors to repair the damage, which were for more than $19,000. The monetary value of the damages is almost equal to the fair market value of the property. Appellant alleged in his complaint that Cleveland had retained exclusive control over the property since the raid, Cleveland committed waste upon the property, appellant had suffered lost rents as a result of Cleveland's conduct, the conduct of the raid was an unconstitutional taking of property, appellant was denied due process, the conduct of the raid and search was an unconstitutional exercise of police power and the raid and search were conducted in an unreasonable, capricious and arbitrary manner.

On January 28, 1997, Cleveland filed a motion for summary judgment in which it argued that it was immune from some of appellant's allegations under R.C. Chapter 2744, which governs political subdivision tort liability. Cleveland further argued that appellant's complaint was insufficient to support his federal constitutional claims under Section 1983, Title 42, U.S.Code. Cleveland contended that appellant was barred from asserting constitutional violations because he did not pursue an appeal to the Board of Building Standards to contest the violations and that res judicata applied. Cleveland maintained that no taking of property in violation of the Constitution occurred, as appellant could have obtained a rehabilitation permit, repaired the property, and regained possession. The trial court granted Cleveland's motion for summary judgment.

II

In his assignment of error, appellant contends that the trial court erred in granting Cleveland's motion for summary judgment. Appellant submits that he did present proper constitutional claims for the taking of his property without just compensation and for deprivation of his due process rights, that the police raid and search were an unconstitutional exercise of police power, and that the raid and search were conducted in an unreasonable, capricious, and arbitrary manner. Appellant argues that the defense of political subdivision tort immunity does not apply, as his claims were not for torts but for violations of his constitutional rights. Appellant further contends that he did not need to appeal the housing code violations, as he does not assert that the violations do not exist but asserts that the violations were caused by the conduct of Cleveland.

This case was decided by summary judgment. Civ.R. 56(C) provides that summary judgment is proper if the trial court determines that:

"(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274.

Summary judgment is a procedural device designed to terminate litigation and to avoid a formal trial where there is nothing to try. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1, 24 O.O.3d 1, 433 N.E.2d 615. Summary judgment is not appropriate where the facts are subject to reasonable dispute when viewed in a light favorable to the nonmoving party. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 104, 19 OBR 261, 264-265, 483 N.E.2d 150, 154. The moving party is entitled to summary judgment if the nonmoving party fails to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett (1986), 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265, 273.

Appellant has alleged that Cleveland's action was a taking of his property without just compensation and a denial of due process under both the United States and Ohio Constitutions. Appellant's federal causes of action will be examined first.

Section 1983 provides:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

Section 1983 provides a remedy for violations of substantive rights created by the United States Constitution or federal statute. Roe v. Franklin Cty. (1996), 109 Ohio App.3d 772, 778, 673 N.E.2d 172, 176- 177. The statute is limited to deprivations of federal constitutional and statutory rights. State ex rel. Carter v. Schotten (1994), 70 Ohio St.3d 89, 92, 637 N.E.2d 306, 309-310.

In order to bring a Section 1983 action, two requirements must be met. The plaintiff must allege that some person has deprived him of a federal right and that the person acted under color of law. Gomez v. Toledo (1980), 446 U.S. 635, 640, 100 S.Ct. 1920, 1923-1924, 64 L.Ed.2d 572, 577-578. Among those persons who can be sued directly under Section 1983 are municipalities and other local government units. However, a municipality may not be held liable under a theory of respondeat superior; rather, the execution of a government's policy or custom must inflict the injury that the government as an entity is responsible for under Section 1983. Monell v. New York City Dept. of Social Services (1978), 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611. Recovery from a municipality is limited to acts that the municipality has officially sanctioned or ordered. Municipal liability attaches where a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question. Pembaur v. Cincinnati (1986), 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452. For a Section 1983 claim, a custom or usage of a municipality must have the force of law by virtue of the persistent practices of government officials. Adickes v. S.H. Kress & Co. (1970), 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142.

A municipal employer or supervisor of a person who deprived a plaintiff of his federal constitutional rights is not vicariously liable for the wrongdoer's actions. To recover from the wrongdoer's supervisor, a plaintiff must demonstrate that the supervisory official at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the employee. If the municipality is sued, the plaintiff must demonstrate that he suffered a constitutional wrong as a result of an official policy, custom, or practice. Gardner v. Grand River (N.D.Ohio 1997), 955 F.Supp. 817.

Appellant has failed to offer any proof that Cleveland has an official policy, custom, or practice...