Eaton v. City of Solon, C83-4668.
| Decision Date | 13 December 1984 |
| Docket Number | No. C83-4668.,C83-4668. |
| Citation | 598 F. Supp. 1505 |
| Parties | Andrea EATON, Plaintiff, v. CITY OF SOLON, Charles J. Smercina, Mayor, Arthur Korkowski, John Rachocki, Anthony J. Celebrezze, Jr., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
Joseph W. Diemert, Jr. & Associates Co., L.P.A., Cleveland, Ohio, for plaintiff.
Charles T. Riehl, Law Director, City of Solon, Victor Leo, Thomas G. Longo, Asst. Law Director, Cleveland, Ohio, for City of Solon, Charles J. Smercina, Mayor, Arthur Korkowski and John Rachocki.
John T. Williams, Asst. Atty. Gen., Columbus, Ohio, for Anthony J. Celebrezze, Jr.
In this case, the plaintiff is asking the court to order the city of Solon, Ohio, to issue a building permit for a single-family, "Geodesic Dome home." The plaintiff is also seeking money damages, both compensatory and punitive, for the City's failure to issue the permit, and an injunction mandating the issuance of the permit. The action has both federal claims and pendent state claims. The federal claims are alleged violations of Title 42 U.S.C. §§ 1983 and 1985. Although inartfully drawn, the Court concludes that plaintiff's claims for mandamus, declaratory judgment, and injunctive relief constitute pendent state claims under Ohio Rev.Code Ann. chs. 2731, 2721, and 2727, respectively.
This case could be disposed of with a brief opinion, but because the proper scope of actions under § 1983 has become a troublesome and vexatious issue in the federal courts, it merits a more in depth analysis by this Court.
This Court is concerned that recent cases decided under § 1983 have indicated that § 1983 is, in effect, being amended and repealed, not by congressional action but by court decisions. Accordingly, this Court will consider § 1983 in some depth, both in general and as it applies to this case.
The plaintiff, Andrea Eaton, filed a complaint captioned "Complaint for Mandamus, Declaratory Judgment, Damages, and Equitable Relief." The defendants are the City of Solon; Charles J. Smercina, the Mayor; Arthur Korkowski, the Building Commissioner; John Rachocki, a former City Councilman; and Anthony J. Celebrezze, Jr., the Attorney General of the State of Ohio.
The plaintiff proposes to build a home on a parcel of property in the City of Solon, acting as the authorized agent and representative of the owner.1 She alleges that the defendants, individually and in concert with one another, and by intentional acts under color of municipal and/or state statutes, city ordinances, or regulations, have violated, and will violate in the future, certain of her constitutional rights.
Specifically, plaintiff claims that she is being deprived of her liberty and lawful use of her property without due process of law, that the actions of the defendants constitute a confiscation of her property without due process of law, and that she is being denied equal protection of laws. She alleges that the defendants have interfered with her private ownership of her property and imposed arbitrary, discriminatory, capricious, and unreasonable restrictions upon the use of her property by the refusal to act upon her application for a building permit.
She further avers that the defendants have acted under the guise of an ordinance which is unconstitutional, in that it imposes arbitrary, discriminatory, vague, and unreasonable standards.
Finally, plaintiff alleges that as a direct and proximate result of the above violations and conspiracy, she has suffered damages. She seeks monetary relief for her damages, attorney's fees, and a permanent injunction against the defendants, jointly and severally, ordering them to grant the building permit.
The defendants, the City of Solon, Mayor Charles Smercina, Building Commissioner Arthur Korkowski, and former Councilman John Rachocki, filed a joint motion to dismiss the complaint.
First, they argue that the plaintiff has made conclusory allegations which are not sufficient to state a cause of action and afford the relief requested under § 1983.
Second, the defendants allege that the plaintiff has no standing to maintain this action because she is not the owner of the property upon which the house is to be built.
Next, the defendants contend that the plaintiff failed to use at least three available state procedures to challenge the action of the Solon building inspector. Specifically, the defendants allege that the plaintiff could have made use of any of the following procedures available under state law: (1) a mandamus action pursuant to Ohio Rev.Code Ann. ch. 2731; (2) administrative procedures provided for in the Solon Building Code, Ordinance 1305.07, together with the right of appeal in the Ohio courts under Ohio Rev.Code Ann. ch. 2506; and (3) a declaratory judgment action pursuant to Ohio Rev.Code Ann. § 2721.03.
The defendants cite Vicory v. Walton, 721 F.2d 1062 (6th Cir.1983), rehearing en banc denied, 730 F.2d 466 (6th Cir.1984), as authority for the proposition that the plaintiff cannot maintain this Fourteenth Amendment due process claim under § 1983, because she had an adequate state remedy which satisfied due process requirements. Defendants claim that since the plaintiff failed to plead or demonstrate the inadequacy of the state processes, she has not stated a claim for denial of due process pursuant to § 1983.
The defendants next contend that the plaintiff has not stated a cause of action under § 1985 because she has not alleged any "class based invidiously discriminatory animus" on the part of the defendants.
Finally, the defendants allege that the federal district court lacks jurisdiction over a suit seeking mandamus of a local public official.
In substance, the defendants argue that the plaintiff is asking the district court to order the issuance of a building permit, a remedy which is inappropriate since the state has adequate remedies which provide all the due process to which the plaintiff is entitled.
Attached to the motion to dismiss is the affidavit of Charles T. Riehl, the Law Director of the City of Solon. He states that the plaintiff has submitted to the Solon Building Department an application for a building permit to construct a "Geodesic Dome home" on a certain lot located within the City of Solon, Ohio. Her application was supplemented by architectural plans for the construction. Riehl states that the application remains incomplete and has not been formally acted upon by the Building Commissioner.
Riehl goes on to state that on or about September 26, 1983, the Building Commissioner of the City of Solon verbally advised the plaintiff that, upon completion of her application, her application would be denied. In considering the plaintiff's application for a permit, the City of Solon solicited and obtained opinions from an appraiser and an architect regarding the advisability of issuing the permit requested.
Finally, the affiant states that the plaintiff has not filed any action in mandamus pursuant to Ohio Rev.Code Ann. ch. 2731 in connection with this matter; has not initiated any declaratory judgment action under Ohio Rev.Code Ann. ch. 2721 in connection with this matter; and has not initiated any other procedure under state statute or local ordinance in connection with this matter.
Attached to the affidavit were the written opinions of the appraiser and the architect and §§ 1301.01-1301.05 of the Codified Ordinances of the City of Solon dealing with the appointment and duties of the Building Commissioner. Also attached was § 1305.07 of the Codified Ordinance of the City of Solon which provides the mechanism for administratively appealing decisions of the building inspector regarding the denial of building permits.
The plaintiff filed a brief and a supplemental brief in opposition to the defendants' motion to dismiss but did not attach any evidentiary material other than the before-mentioned power of attorney.
Because the defendants filed an affidavit with their motion to dismiss and the plaintiff filed the power of attorney, the Court will consider the motion to dismiss as a motion for summary judgment. Fed.R. Civ.P. 12(b) and 56.
The two important legislative and constitutional provisions with which we will deal are 42 U.S.C. § 1983 and the Fourteenth Amendment to the United States Constitution.
Section 1983 provides as follows:
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 proceedings for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
Section 1 of the Fourteenth Amendment to the United States Constitution is as follows:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 1983 was enacted in 1871 and from 1871 through 1961, there were very few cases brought under the statute. In 1961, Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), was decided. Since Monroe, there have been thousands of reported and unreported § 1983 cases, and the only thing that is consistent about them is their inconsistency. Law...
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...or judicial. The impact of applying these methods has been to preclude the maintenance of a § 1983 action. See Eaton v. Solon, 598 F.Supp. 1505 (N.D.Oh.1984). The underlying basis of this trend seems to be that since individuals' rights are created by state law, if the state law provides a ......
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