Gardner v. City of Cleveland

• Decision Date: 20 August 2009
• Docket Number: Case No. 1:07 CV 1601.
• Citation: 656 F.Supp.2d 751
• Parties: Steven L. GARDNER, Plaintiff, v. CITY OF CLEVELAND, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

656 F.Supp.2d 751

Steven L. GARDNER, Plaintiff, v.CITY OF CLEVELAND, et al., Defendants.

Case No. 1:07 CV 1601.

United States District Court, N.D. Ohio, Eastern Division.

August 20, 2009.

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Laurence A. Turbow, Laurence A. Turbow, Cleveland, OH, for Plaintiff.

Gary S. Singletary, City of Cleveland Department of Law, Mark R. Musson, City of Cleveland, Gregory V. Mersol, Kelly M. King, Baker & Hostetler, Kristin A. Somichm Ogletree, Deakins, Nash, Smoak & Stewart, Cleveland, OH, for Defendants.

MEMORANDUM OPINION

DONALD C. NUGENT, District Judge.

This matter is before the Court on the Motions of Defendants City of Cleveland and Earle B. Turner for Summary Judgment(ECF #25) and Plaintiff, Steven L. Gardner, for Summary Judgment.(ECF # 24).For the reasons that follow, Defendants' Motion for Summary Judgment is granted as to Plaintiff's federal claims and Plaintiff's Motion is denied as to those claims.Further, the Court declines to accept supplement jurisdiction over Plaintiff's remaining state law claims and those claims are remanded to state court.

PROCEDURAL AND FACTUAL BACKGROUND¹

This action was filed in the Court of Common Pleas for Cuyahoga County by PlaintiffSteven L. Gardner against Defendants City of Cleveland, Earle B. Turner in his Official Capacity as Clerk of the Cleveland Municipal Court and Clerk of the Cleveland Parking Violations Bureau, and Affiliated Computer Services, Inc. on May 11, 2007.The action arises from Plaintiff's receipt of two "Notices of Liability" from the City of Cleveland Parking Violations Bureau, Photo Safety Division for two purported violations of Section 413.031 of the Codified Ordinances of the City of Cleveland("C.O."), one on December 31, 2006 and one on January 1, 2007.Under C.O. 413.031, Plaintiff requested and received a hearing regarding the Notices of Liability before a Hearing Examiner in the City of Cleveland's Parking Violations Bureau, Photo Safety Division on April 12, 2007.At the hearing, Plaintiff submitted no evidence other than his statement that he was not driving at the time of the offenses.No other evidence was presented on either side.At the conclusion of the hearing, the Hearing Examiner found Plaintiff liable for the violations depicted in the Notices of Liability, gave Plaintiff notice of the finding of liability, and informed Plaintiff of his right to appeal.Plaintiff did not exercise his right to file an administrative appeal of the Hearing Examiners' findings of liability to the Cuyahoga County Court of Common Pleas under R.C. § 2506.Instead, Plaintiff filed the instant action seeking declaratory judgment, a permanent injunction and relief under 42 U.S.C. § 1983.Defendants removed the action to this Court on May 31, 2007.

This Court granted Defendant ACS State and Local Solutions' Motion to Stay the proceedings pending the decision of the Ohio Supreme Court on a question certified to them by Judge Dowd in Mendenhall v. Akron and Sipe v. Nestor Traffic Systems, Inc.;cases which involved challenges to an Akron ordinance providing an automated mobile speed enforcement system.The question certified to the Ohio Supreme Court was "Whether a municipality has the power under home rule to enact civil penalties for the offense of violating a traffic signal light or for the offense of speeding, both of which are criminal offenses under the Ohio Revised Code."The Ohio Supreme Court issued an opinion on January 31, 2008 finding that "an Ohio municipality does not exceed its home rule authority when it creates an automated system for enforcement of traffic laws that imposes civil liability upon violators, provided that the municipality does not alter statewide traffic regulations."Mendenhall v. Akron,117 Ohio St.3d 33, 881 N.E.2d 255(2008).(Syllabus of the Court, January 31, 2008).

Thereafter, Plaintiff was granted leave to file an Amended Complaint.Count One contains a number of allegations purporting to show that C.O. 431.031 is unconstitutional on its face for the reasons identified in the Mendenhall case, and that it was unconstitutional as applied under both the Ohio and United States' Constitutions.With respect to his § 1983 claim, Plaintiff asserts that his civil rights were violated by the Defendants' unfair, and unlawful process and unfair prosecution causing Plaintiff damages in the nature of fines, costs and attorneys fees.(ECF # 15, ¶ 26).In Count Two, Plaintiff alleges that the use of the parking violations bureau for the initial appeal of the notice of violation issued by the Clerk of the Cleveland Municipal Court violates Cleveland City Charter provision § 76-6(b).The Amended Complaint seeks a judgment declaring C.O. 431.031 unconstitutional; a permanent injunction ordering the City of Cleveland and the Clerk of the Cleveland Municipal Court to stop enforcing C.O. 431.031; to dissolve the Division of Photo Safety; and, an order reversing the fines, penalties, and other consequences associated with Plaintiff's tickets/citations/notices stemming from violations of C.O. 431.031.Plaintiff also seeks attorneys fees and costs associated with prosecuting this action.

DefendantAffiliated Computer Services, Inc. filed a motion to dismiss the claims against it for failure to state a claim upon which relief could be granted.(ECF # 16).The Court granted that Motion on July 18, 2008.

Plaintiff and the remaining Defendants filed cross motions for summary judgment.The motions are fully briefed and ready for decision.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate where the court is satisfied "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."FED. R. CIV. P. 56(c).The burden of showing the absence of any such "genuine issue" rests with the moving party:

[A]party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions answers to interrogatories, and admissions on file, together with affidavits, if any,' which it believes demonstrates the absence of a genuine issue of material fact.

Celotex v. Catrett,477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265(1986)(citingFED. R. CIV. P. 56(c)).A fact is "material" only if its resolution will affect the outcome of the lawsuit.Anderson v. Liberty Lobby,477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202(1986).Determination of whether a factual issue is "genuine" requires consideration of the applicable evidentiary standards.The court will view the summary judgment motion"in the light most favorable to the party opposing the motion."U.S. v. Diebold, Inc.,369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176(1962), see alsoU.S. v. Hodges X-Ray, Inc.,759 F.2d 557, 562(6th Cir.1985).

Summary judgment should be granted if a party who bears the burden of proof at trial does not establish an essential element of their case.Tolton v. American Biodyne, Inc.,48 F.3d 937, 941(6th Cir.1995)(citingCelotex,477 U.S. at 322, 106 S.Ct. 2548).Accordingly, "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff."Copeland v. Machulis,57 F.3d 476, 478(6th Cir.1995)(quotingAnderson,at 248-49, 106 S.Ct. 2505(1986)).Moreover, if the evidence presented is "merely colorable" and not "significantly probative,"the court may decide the legal issue and grant summary judgment.Anderson,477 U.S. at 249-50, 106 S.Ct. 2505(citation omitted).In most civil cases involving summary judgment, the court must decide "whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict."Id. at 252, 106 S.Ct. 2505.However, if the non-moving party faces a heightened burden of proof, such as clear and convincing evidence, it must show that it can produce evidence which, if believed, will meet the higher standard.Street v. J.C. Bradford & Co.,886 F.2d 1472, 1479(6th Cir.1989).

Once the moving party has satisfied its burden of proof, the burden then shifts to the nonmover.The nonmoving party may not simply rely on its pleadings, but must "produce evidence that results in a conflict of material fact to be solved by a jury."Cox v. Kentucky Department of Transportation,53 F.3d 146, 149(6th Cir.1995).The text of FED. R. CIV. P. 56(e) states:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.

Id.The Federal Rules identify the penalty for the lack of such a response by the nonmoving party as an automatic grant of summary judgment, where otherwise appropriate.

Though parties must produce evidence in support of and in opposition to a motion for summary judgment, not all types of evidence are permissible.The Sixth Circuit has concurred that, "`it is well settled that only admissible evidence may be considered by the trial court in ruling on a motion for summary judgment.'"Wiley v. U.S.,20 F.3d 222(6th Cir.1994)(quotingBeyene v. Coleman Sec. Servs., Inc.,854 F.2d 1179, 1181(9th Cir.1988)).FED. R. CIV. P. 56(e) also has certain, more specific requirements:

[it] requires that affidavits used for summary judgment purposes be made on the basis of personal knowledge, set forth admissible evidence, and show that the affiant is competent to testify.Rule 56(e) further requires the party to attach sworn or certified copies to all documents referred to in the affidavit.Furthermore, hearsay evidence cannot be considered on a motion for summary judgment.

Wiley,at 225-26...