Darling v. Lake Cnty. Bd. of Comm'rs
| Decision Date | 25 May 2012 |
| Docket Number | CASE NO. 1:12 CV 194 |
| Parties | HUNTER DARLING, et al, Plaintiffs, v. LAKE COUNTY BOARD OF COMMISSIONERS, et al., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
OPINION AND ORDER
Pro se Plaintiffs Hunter Darling, Amanda Darling, Joseph Zeigler, and minor children C.H.D. and I.M.D., filed this action under 33 U.S.C. §§ 1251,1334, 1342, 1344; 42 U.S.C. §§ 1983, 1985, 1986 and 4001-4129 and "any/all other applicable Federal Statutes on violations of flood plain management" against Lake County Commissioners Raymond Sines, Robert Aufuldish, and Daniel Troy, Lake County Engineer James Gills, Lake County Prosecutor Charles Coulson, Lake County Assistant Prosecutor Michael DeLeone, Lake County General Health District Supervisor Laura Kramer Kuns, Lake County General Health District Registered Sanitarian Susan Bell, Concord Township Trustees Caroline Luhta, Christopher Galloway, and Paul Malchesky, Concord Township Fiscal Officer Amy Dawson, the Ohio Department of Transportation ("ODOT") ODOTDirector Jerry Wray, the Ohio Department of Natural Resources ("ODNR"), ODNR Director Scott Zody, the Ohio Environmental Protection Agency ("EPA"), Ohio EPA Director Scott Nally, the United States Army Corp of Engineers, Army Corp of Engineers Resource Management Director Wesley C. Miller, Federal Emergency Management Agency ("FEMA"), and FEMA Director William Craig Fugate. In the Complaint, Plaintiffs assert Defendants permitted developers to install storm drains which have an adverse affect on property they own or on which they reside. They seek declaratory, monetary and injunctive relief.
The Complaint, although substantial in size, contains very few factual allegations. Plaintiffs allege Hunter Darling purchased property located at 11864 Concord-Hamden Road in Concord Township, Ohio 44077 in 2005. He, Amanda Darling, Joseph Ziegler, and minor children I.M.D. and C.H.D reside there. Plaintiffs contend Defendants approved the installation of storm drains or sewer pipes in housing developments. They claim these pipes drain into an existing flood plain of the Jordan Creek. They contend that from 2006 to the present, this situation has led to flooding of contaminated water in the yard and in the residence at the Concord-Hamden Road property whenever it rains or snows significantly. Water samples were taken by the Lake County General Health District from standing water on the Concord-Hamden Road property on November 16, 2011. These samples were then tested, and the results indicated that no significant contamination was present.1 Plaintiffs claim the test results were altered by Defendants.
Plaintiffs assert five claims for relief. First, they allege Lake County CommissionersRaymond Sines, Robert Aufuldish, and Daniel Troy, Lake County Engineer James Gills, Concord Township Trustees Caroline Luhta, Christopher Galloway, and Paul Malchesky, ODOT, ODOT Director Jerry Wray, the ODNR, ODNR Director Scott Zody, the Ohio EPA, and Ohio EPA Director Scott Nally, acting in their official capacities, violated "clearly established Federal FEMA and Presidential Executive Orders on Flood Plain Management, Federal Clean Water Act as well as other clearly established Federal Policies/Procedures/Acts for said State Government Officials to follow and is mandated under Federal Flood Plain Management." (ECF No. 1 at 7). In addition, they claim these Defendants, in their official capacities, violated their First, Fourth, and Fifth Amendment rights as well as their Fourteenth Amendment rights to Equal Protection and Due Process.
Plaintiffs' Second Claim is captioned "State Statutes violated by State." In this claim, they allege Sines, Aufuldish, Troy, Gills, ODOT, Wray, ODNR, Zody, the Ohio EPA, and Nally, acting in their official capacities, violated "clearly established [policies, procedures, or statutes] by the Ohio Environmental Protection Agency (EPA), Ohio Department of Natural Resources (DNR) as well as other clearly established Ohio Policies/Procedures/Acts for said State Government Officials to follow and mandated on Ohio Flood Plain Management." (ECF No. 1 at 11). They again include claims for violation of the First, Fourth, Fifth, and Fourteenth Amendments.
Plaintiffs' Third Claim is entitled "Statutes violated by Feds." (ECF No. 1 at 13). They assert the United States Army Corp of Engineers, Army Corp of Engineers Employee Wesley C. Miller, FEMA, and FEMA Director William Craig Fugate, acting in their official capacities, violated "were literally/actually negligence [sic] (per se) by blatantly violating clearly established Federal FEMA and Presidential Executive Orders on Flood Plain Management, Federal Clean WaterAct as well as other clearly established Federal Policies/Procedures/Acts for said State Government Officials to follow and is mandated under Federal Flood Plain Management." (ECF No. 1 at 7). In addition, they claim these Defendants, in their official capacities, violated their First, Fourth, Fifth, and Fourteenth Amendment rights.
Plaintiffs' Fourth Claim asserts individual capacity causes of action. They contend Sines, Aufuldish, Troy, Gills, Kramer Kuns, Bell, Luhta, Galloway, Malchesky, Dawson, Wray, and Zody, in their individual capacities, violated "clearly established FEMA and Presidential Executive Orders, Federal/Ohio Environmental Protection Agency (EPA), as well as other clearly established Federal/State Policies/Procedures for said State Government Officials to follow and are mandated under Flood Plain Management." (ECF No. 1 at 15). They also assert claims against these Defendants, in their individual capacities for violations of their First, Fourth, Fifth, and Fourteenth Amendment rights.
Plaintiffs' Fifth Claim has several parts to it. They first contend Lake County Prosecutors Charles Coulson and Michael DeLeone conspired, in violation of 43 U.S.C. § 1985, with Sines, Aufuldish, Troy, Gills, Luhta, Galloway, and Malchesky by refusing to disclose public records Plaintiffs requested under the Freedom of Information Act, 5 U.S.C. § 552. They next allege Dawson conspired, in violation of 43 U.S.C. § 1985, with Luhta, Galloway, and Malchesky by refusing to disclose public records Plaintiffs requested under the Freedom of Information Act. Plaintiffs then allege that Kramer Kuns and Bell conspired, in violation of 43 U.S.C. § 1985, with Coulson and DeLeone by "intentionally failing/refusing to take water samples as required under Ohio Statutes/Laws on November 16, 2011, and then reporting inaccurate findings to the Lake County Prosecutors Office...to cover up actual negligence of other Lake County Defendants." (ECFNo. 1 at 17.) Finally, they allege Coulson, DeLeone, Kramer Kuns, and Bell conspired together, in violation of 43 U.S.C. § 1985, "to cover-up negligence (per se) that said other Co-Defendants actually signed/approved such developments to drain into a known Flood Plain, and/or by said Defendants conspired to cover-up the fact that said other Co-Defendants failed/refused to get mandated approval on such developments as required under both Federal/Ohio Flood Plain Management Statutes." (ECF No. 1 at 18.)
Finally, Plaintiffs request certification as a class action. They assert that their claims against the Defendants "are predominate [sic] or identical, and that the State/Federal Statutes on Flood Plain Management chronologically states [sic] that Defendants need approval from other Co-Defendants to drain into a Flood Plain and that it would not affect environment/property/life of Plaintiffs." (ECF No. 1 at 18.) Based on this statement, they conclude they meet the prerequisites for class certification under Federal Civil Procedure Rule 23.
On February 6, 2012, Lake County General Health District Supervisor Laura Kramer Kuns, and Registered Sanitarian Susan Bell filed a Motion to Dismiss pursuant to Federal Civil Rule 12(b)(6). (ECF No. 5). In the Motion, they contend there are no allegations against them suggesting they personally engaged in misconduct. They claim Plaintiffs fail to allege class-based discrimination to support a claim for denial of Equal Protection and assert there are no facts suggesting they denied Plaintiffs procedural due process. They contend they are entitled to qualified immunity. Finally, they claim the Plaintiffs failed to adequately allege the existence of a conspiracy to violate civil rights under 42 U.S.C. § 1985.
The Ohio EPA and Director Scott Nally filed a Motion to Dismiss under Federal Civil Procedure Rules 12(b)(1) and 12(b)(6) on February 21, 2012. (ECF No. 11). They assert thatPlaintiffs' claims for monetary damages against the Ohio EPA and claims against Nally in his official capacity are barred by the Eleventh Amendment. They contend Plaintiffs failed to allege facts to suggest Nally could be held liable, in his individual capacity, under any of the federal statutes cited, and that they are nonetheless entitled to qualified immunity. Finally, they claim Plaintiffs failed to demonstrate any constitutional right violated by Nally, have not adequately pled the existence of a conspiracy to support a claim under § 1985, and failed to specify which provisions of the Clean Water Act, FEMA regulation or Executive Order Nally or the Ohio EPA violated.
The ODNR and Scott Zody also filed a Motion to Dismiss pursuant Federal Civil Procedure Rules 12(b)(1) and 12(b)(6) on February 21, 2012. (ECF No. 12). They too assert that Plaintiffs' claims for monetary damages against the ODRN and claims against Zody in his official capacity are barred by the Eleventh Amendment. They contend they are entitled to qualified immunity. They assert Plaintiffs failed to allege facts to support any of their constitutional claims, conspiracy claims under § 1985, or claims under the Clean Water Act.
Plaintiffs filed a Motion for Default Judgment on February 22, 2012. (ECF No. 14). In the Motion, Plainti...
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