Hussein v. City of Perrysburg, Case No. 3:07CV1715.

• Decision Date: 28 February 2008
• Docket Number: Case No. 3:07CV1715.
• Citation: 535 F.Supp.2d 862
• Parties: Fadhil A. HUSSEIN, M.D., et al., Plaintiffs, v. CITY OF PERRYSBURG, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

535 F.Supp.2d 862

Fadhil A. HUSSEIN, M.D., et al., Plaintiffs, v. CITY OF PERRYSBURG, et al., Defendants.

Case No. 3:07CV1715.

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

February 28, 2008.

As Amended March 17, 2008.

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Cary R. Cooper, Cooper & Walinski, Toledo, OH, for Plaintiffs.

Darlene E. White, Robert H. Eddy, III, Gallagher Sharp, Cleveland, OH, for Defendants.

ORDER

JAMES G. CARR, Chief Judge.

Background

This is a civil rights suit under 42 U.S.C. § 1983 for a violation of plaintiffs' constitutional rights. Plaintiffs, Iraq nationals, are a husband and wife. They sue the City of Perrysburg (City) and three of its officials, claiming selective or vindictive enforcement of the law, denial of equal protection of the laws under the Fourteenth Amendment, and retaliation following exercise of their First Amendment rights.

This court has jurisdiction under 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331 and 1343.

Pending is defendants' motion to dismiss. [Doc. 14]. For the reasons that follow, the motion shall be granted in part and denied in part.

Discussion

Fadhil Hussein, M.D., and his wife, Raya Ahmed, purchased two lots from Hafner & Shugarman Enterprises (Hafner), a real estate developer and contractor. They entered into a contract for Hafner to build a new home. Construction began in July, 2004.

Hafner obtained neither necessary building permits from the City nor the other municipal and state authorizations required to build the home. Plaintiffs allege that the City knew Hafner had not complied with the laws and regulations, but let the work progress nonetheless.

Plaintiffs' property is, in part, on a flood plain. Again without obtaining the necessary permits, Hafner altered a ditch and otherwise disturbed the watercourse on the flood plain. This led to complaints by neighboring homeowners about flooding resulting from Hafner's work. Plaintiffs also allege the City knew Hafner" failed to obtain authorization to do work in the flood plain, yet allowed Hafner to proceed.

At some point prior to July, 2606, the City issued a stop-work order. In July, 2006, the neighboring property owners objected to lifting of the stop-work order and urged the City not to issue an occupancy permit. The neighbors sought to keep plaintiffs from occupancy until Hafner and the plaintiffs remediated the flood plain and had, as well, constructed a suitable entrance and public sidewalks.

In October, 2006, plaintiffs, through a consultant-contractor, received approval from a City employee to place a temporary layer of asphalt on their drive so that they could safely enter and leave during the winter. In early November, a paving contractor laid the asphalt. Neighbors, learning of this development, complained to defendant Rick Thielen, City Planning, Zoning, and Economic Development Administrator. Police arrived shortly thereafter and instructed the contractor to tear up the paving as violative of the stop-work order.

Thereafter, Hussein complained to defendant John Alexander, City Administrator. Alexander was unresponsive to his complaints. Hussein then sought to meet with the Mayor. While waiting in the reception area of the Mayor's office, defendant Roud Klag, City Inspector, appeared and commented to another individual that the good doctor had come in "flapping his jaw." The Mayor's receptionist said that plaintiff would not be able to look up from the floor.

On January 10, 2007, Alexander sent Hussein a letter stating that he had interviewed Klag, and Klag could not remember making that statement. According to the letter, if the remark was made, it was not directed at Hussein. This provoked an voicemail message to Alexander from Hussein, in which plaintiff stated that Alexander was lying and was a racist.

Two days later, the City Law Director sent a letter to plaintiffs' counsel and Hafner's counsel stating that work on the flood plain violated a Perrysburg ordinance. The letter also stated that the City had issued a stop-work order and would not issue the certificate of occupancy until plaintiffs resolved entrance-way issues. The letter stated that if the parties were able to remediated the situation to the satisfaction of the City before May 15, 2007, the City would not take enforcement action against either the developer or the owner.

This created a dilemma; to remediated the flood plain damage Hafner had to bring heavy equipment on plaintiffs' property. In April, 2007, Hafner proposed that, if plaintiffs would allow it to bring heavy equipment across their property, it would complete the sidewalk and entrance.

Plaintiffs initially, refused to give permission unless Hafner fixed the entranceway first. An agreement between plaintiffs, Hafner, and the City broke the impasse. Plaintiffs gave Hafner permission to do the flood plain work first, but insisted that if the sidewalk and entranceway were not fully completed by May 15, the City would take enforcement action against Hafner.

Hafner completed the flood plain work during April, and the City issued a certificate of occupancy. Hafner did not fix the sidewalk and entranceway. The City granted Hafner an extension until May 31, 2007. Hafner did not complete the work by that deadline. The City never instituted enforcement proceedings.

Plaintiffs claim: 1) the City's failure to enforce its ordinances against Hafner (by letting it proceed without the permits) while enforcing them against plaintiffs (i.e., by having the newly laid asphalt torn up) constitutes a denial of equal protection on the basis of their national origin, ethnicity, and religion and selective enforcement of the laws; and 2) the letter from the City Law Director and threats of instituting enforcement actions after Hussein's complaints to the Mayor constituted retaliation for his exercise of his First Amendment rights.

Standard of Review

Defendants move to dismiss plaintiffs' complaint under Fed.R.Civ.P. 12(b)(6). The Supreme Court recently held that a complaint must be dismissed pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007).

The focus is not on whether a plaintiff will ultimately prevail, but rather on whether the claimant has offered "either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.1988) (citation omitted). Dismissal is warranted "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations," Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984), and, in the context of a civil rights claim, "pleadings are to be liberally construed and the complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief," In re Cincinnati Radiation Litigation, 874 F.Supp. 796, 830 (S.D.Ohio 1996).

Defendants attach five exhibits to their motion to dismiss, including the original complaint filed in the Wood County Court of Common Pleas; Alexander's January 10, 2007 letter to Hussein; a transcription of the January 10, 2007 voice mail recording; and codified ordinances of the City.

The Sixth Circuit has held that

when a document is referred to in the complaint and is central to the plaintiffs claim ... the defendant may submit an authentic copy to the court to be considered on a motion to dismiss, and the court's consideration of the document does not require conversion of the motion to one for summary judgment.

Greenberg v. Life Ins. Co., 177 F.3d 507, 514 (6th Cir.1999) (citation omitted); see also Weiner v. Klais & Co., 108 F.3d 86, 89 (6th Cir.1997). Further, "[w]here plaintiff has actual notice of all the information in the movant's papers and has relied upon these documents in framing the complaint, the necessity of translating a Rule 12(b)(6) motion into one under Rule 56 is largely dissipated." Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991).

I decline to convert the motion to dismiss to one for summary judgment and, to the extent that the substance and content of these documents are central to plaintiffs' claims, will consider the documents when ruling on the motion to dismiss.

Discussion

To state a prima facie case under 42 U.S.C. § 1983, a plaintiff must show that the conduct: 1) was committed by a person acting under color of state law; and 2) deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. See Parma v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled on, other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 462 (1986).

In their complaint, plaintiffs allege City Administrator Alexander, City Inspector Klag, and City Planning Administrator Thielen, are state actors, and that the actions of the City and its officials constituted unequal, selective or vindictive enforcement of the laws, thereby denying plaintiffs' equal protection of the laws, and were in retaliation for exercising their First Amendment rights.

1. Claims Against City of Perrysburg and Defendants in Their Official Capacity

A § 1983 suit against an municipal employee inn his official capacity is the equivalent of a suit against the governmental entity. Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir.1994) (citing Will v. Michigan Dept of State Police, 491 U.S" 58, 68, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989)). Local governments can be sued under 42 U.S.C. § 1983, Monell v. Dept. of Social Sens. of the City of New York, 436 U.S. 658, 690, 98...