Ludt v. City of Youngstown

• Court: Ohio Court of Appeals
• Writing for the Court: DeGENARO, J.
• Citation: Ludt v. City of Youngstown, 2016 Ohio 8553, CASE NO. 15 MA 0084 (Ohio App. Dec 29, 2016)
• Decision Date: 29 December 2016
• Docket Number: CASE NO. 15 MA 0084
• Parties: JAMES B. LUDT PLAINTIFF-APPELLEE v. CITY OF YOUNGSTOWN, et al. DEFENDANTS-APPELLANTS

2016 Ohio 8553

JAMES B. LUDT PLAINTIFF-APPELLEE v. CITY OF YOUNGSTOWN, et al. DEFENDANTS-APPELLANTS

CASE NO. 15 MA 0084

STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT

December 29, 2016

OPINION

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio Consolidated Case No. 2013 CV 2548

JUDGMENT: Reversed.

APPEARANCES:

For Plaintiff-Appellee

James Ludt, Pro-se

2129 East Midlothian Boulevard

Struthers, Ohio 44471

For Defendants-Appellants

Attorney Megan Millich

Attorney Neil Schor

26 Market Street, Suite 1200

Youngstown, Ohio 44501-6077

JUDGES:

Hon. Mary DeGenaro

Hon. Gene Donofrio

Hon. Carol Ann Robb

DeGENARO, J.

{¶1} Defendants-Appellants, City of Youngstown, et al, appeal the trial court's judgment overruling their motion for summary judgment in part. As Appellants' arguments are meritorious, the judgment of the trial court is reversed and modified so as to grant Appellants summary judgment on all of Ludt's claims.

Facts and Procedural History

{¶2} This appeal involves three of four cases which were consolidated into Case No. 2013 CV 2548 at the trial court level, and are described as follows by case number.

13 CV 2549

{¶3} Ludt filed a complaint against the City of Youngstown, Mayor Jay Williams, and Assistant Chief Enforcement Officer Tony DeNicholas, alleging multiple claims. Appellants filed an answer denying all claims and asserting various affirmative defenses. They also filed a motion for summary judgment which Ludt opposed. On May 26, 2015, the trial court granted summary judgment to Appellants on a majority of Ludt's claims. However, it denied summary judgment on Ludt's Section 1983 Fourth Amendment claim and his due process claim.

14 CV 2590

{¶4} Ludt's complaint as amended against the City of Youngstown, Mayor Charles Samarone, Prosecutor Dana Lantz, Police Officer Laura Fulmer, Assistant Prosecutor Kathleen Thompson, and other unknown city employees, alleged, pertinent to this appeal, "4th Amendment Violation Retaliation Thru Officials Position of Office/Employment Since the Year 2004." Defendants filed a motion for summary judgment and one month later Ludt filed a voluntary motion to dismiss this case citing his lack of legal training and bipolar condition as grounds. On May 26, 2015, the trial court overruled the motion to dismiss and granted summary judgment to Defendants on all of Ludt's claims except for the retaliation claim.

13 CV 2550

{¶5} Ludt filed a complaint against the City of Youngstown, Mayor Jay Williams, Arson Investigator Alvin Ware, Fireman Richard Russo, Battalion Chief David Harris, and Police Officer Doug Pesa for Abuse of Process, Malicious Prosecution, False Arrest, Retaliation, and Section 1983 claim.

{¶6} Factually, on April 22, 2009, a fire occurred at Ludt's property located at 1422 Midlothian Boulevard, Youngstown, Ohio. Ludt alleges City of Youngstown firefighters Ware, Russo, and Harris and Officer Pesa embarrassed him and trespassed onto his property. He contends a verbal altercation occurred after the fire was extinguished. Ludt believes the fire was arson and not properly investigated. Ludt was charged with obstruction of official business and misconduct at an emergency. The latter charge was dismissed by the city prosecutor. Ludt waived his preliminary hearing and consented to binding over to the grand jury the obstruction charge. He was indicted on May 21, 2009 and ultimately found not guilty.

{¶7} Appellants filed an answer denying all claims and asserting various affirmative defenses. Defendants filed a motion for summary judgment which Ludt opposed. On May 26, 2015, the trial court granted summary judgment to Appellants on all of Ludt's claims except for the Malicious Prosecution, False Arrest, and Retaliation claims.

{¶8} When reviewing a trial court's decision to grant summary judgment, an appellate court review is de novo. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. Summary judgment will be granted when the movant demonstrates, viewing the evidence most strongly in favor of the nonmovant, that reasonable minds can find no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Doe v. Shaffer, 90 Ohio St.3d 388, 390, 2000-Ohio-186, 738 N.E.2d 1243. A material fact is one that affects the outcome of the suit under the applicable substantive law. Bank v. Miller, 7th Dist. No. 13 MA 119, 2015-Ohio-2325, ¶ 26.

13 CV 2549 - Fourth Amendment Claim

{¶9} In their first of six assignments of error, Appellants assert:

THE TRIAL COURT ERRED BY DENYING SUMMARY JUDGMENT TO MAYOR JAY WILLIAMS AND TONY DENICHOLAS ON APPELLEE'S 4^th AMENDMENT CLAIM.

{¶10} An action under Section 1983 alleges that an individual had been deprived of a Constitutional right by a person acting under color of law. 42 U.S.C. 1983; Conley v. Shearer, 64 Ohio St.3d 284, 292, 1992-Ohio-133, 595 N.E.2d 862. Federal and state courts have concurrent jurisdiction to remedy this deprivation. Schwarz v. Board of Trustees of Ohio State Univ., 31 Ohio St.3d 267, 510 N.E.2d 806. "To establish a 1983 claim against an individual public official, two elements are required: (1) the conduct complained of must be committed by a person acting under color of state law, and (2) the conduct must deprive the plaintiff of a federally protected right, either constitutional or statutory." Cook v. Cincinnati, 103 Ohio App.3d 80, 85, 658 N.E.2d 814 (1st Dist.1995).

{¶11} The pertinent part of Section 1983, Title 42, U.S. Code states:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State * * *, subjects, or causes to be subjected, any citizen of the United States * * * 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 * * *.

{¶12} Governmental officials may avail themselves of a qualified immunity defense if they are sued under Section 1983. When determining whether qualified immunity should be granted, the court applies a three-prong test:

(1) whether, based upon the applicable law, the facts viewed in the light most favorable to the plaintiffs show that a constitutional violation has occurred; (2) whether the violation involved a clearly established constitutional right of which a reasonable person would have known; and (3) whether the plaintiff has offered sufficient evidence to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights.

Vlcek v. Chodkowski, 2015-Ohio-1943, 34 N.E.3d 446, ¶ 20 (2d Dist.) citing Radvansky v. City of Olmsted Falls, 395 F.3d 291, 302 (6th Cir.2005).

{¶13} Once qualified immunity is raised, it is the plaintiff's burden of proof to establish that the defendants are not entitled to qualified immunity. Cook, supra, at 85-86.

{¶14} Although Ludt made multiple allegations against Williams, Ludt never alleged that Williams violated his Fourth Amendment rights depriving him of his personal property. Thus, we need not consider whether Williams is protected by qualified immunity. Even if we were to consider it, Appellants asserted the defense, and Ludt asserted nothing in response and as such did not meet his burden to demonstrate Williams was not entitled to qualified immunity. Cook supra.

{¶15} Regarding DeNicholas, Ludt alleged, and Appellants admitted in their motion for summary judgment, that DeNicholas was employed and acting in his capacity as a Youngstown zoning officer when he briefly took Ludt's video camera but quickly returned it. They further asserted the administration of a zoning department is a governmental function and entitled to immunity. As Appellants carried the initial burden of alleging facts demonstrating DeNicholas was acting within the scope of his authority during the incident, the burden shifts to Ludt to establish that DeNicholas' conduct violated a clearly established right that any official in his position would have understood he or she was under an affirmative duty to refrain from such conduct. Cook, supra.

{¶16} In his opposition to summary judgment Ludt contended DeNicholas was "acting outside his/her Authority" and consequently has no qualified immunity; he asserts nothing else in rebuttal. This contradicts the allegations in Ludt's complaint that DeNicholas took his camera while working for the city.

{¶17} In sum, summary judgment should have been granted to Appellants on Ludt's Fourth Amendment claim against Williams and DeNicholas. Accordingly Appellants' first assignment of error is meritorious.

13 CV 2549 - Due Process Claim

{¶18} In their second of six assignments of error, Appellants assert:

THE TRIAL COURT ERRED BY DENYING SUMMARY JUDGMENT TO THE CITY OF YOUNGSTOWN, MAYOR JAY WILLIAMS, AND TONY DENICHOLAS ON APPELLEE'S DUE PROCESS CLAIM.

{¶19} Ludt makes no allegations in either his complaint or in opposition to summary judgment that Jay Williams and the City violated his due process rights. Thus, we need not consider whether Williams and the City are protected by qualified immunity. Even if we were to consider it, Appellants asserted the defense and Ludt asserted nothing in response and as such did not meet his burden to demonstrate Williams and the City were not entitled to qualified immunity. Cook, supra.

{¶20} Regarding DeNicholas, Ludt alleged his due process rights were violated when DeNicholas took his camera and briefly withheld it before returning it to him. It's unclear if Ludt is arguing that his procedural or substantive due process rights were violated. Both will be discussed in turn.

The Due Process Clause of the Fourteenth Amendment states that no state shall 'deprive any person of life, liberty, or property without due process of law.' In order to state a claim under 42 U.S.C.1983 for a procedural due process violation, a plaintiff must allege that (1) he or she

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