Mansfield Apartment Owners Ass'n v. City of Mansfield

• Decision Date: 12 March 1993
• Docket Number: No. 92-3021,92-3021
• Citation: 988 F.2d 1469
• Parties: MANSFIELD APARTMENT OWNERS ASSOCIATION, et al., Plaintiffs-Appellants, v. CITY OF MANSFIELD, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1469

988 F.2d 1469

MANSFIELD APARTMENT OWNERS ASSOCIATION, et al., Plaintiffs-Appellants, v. CITY OF MANSFIELD, et al., Defendants-Appellees.

No. 92-3021.

United States Court of Appeals Sixth Circuit.

Submitted Nov. 20, 1992.

Decided March 12, 1993.

Edward L. Gilbert, Akron, OH, for plaintiffs-appellants Mansfield Apartment Owners Ass'n, Dan Roane, and Alpha & Omega Church of God in Christ.

Wallace Toward, pro se.

Richard G. Beer, pro se.

Bruce Jewett, pro se.

Paul W. Allison, Sue M. Douglas, James D. Kurek, Vincent J. Tersigni, Buckingham, Doolittle & Burroughs, Akron, OH, for defendants-appellees.

Before: KENNEDY, MARTIN, and SUHRHEINRICH, Circuit Judges.

KENNEDY, Circuit Judge.

Plaintiffs Mansfield Apartment Owners Association appeal the order of the District Court granting summary judgment in favor of defendants City of Mansfield, et al., in this civil rights action challenging the defendants' policy of refusing to provide water service to landlords until the delinquent accounts of plaintiffs' former tenants are paid. Plaintiffs argue on appeal that the District Court erred in granting summary judgment, that defendants' practices and policies deprived plaintiffs of the due process of law, and that Ohio's four-year residual personal limitations period should govern this action. For the reasons that follow, we affirm the District Court's grant of summary judgment.

I.

The City of Mansfield provides water service to its citizens under the guidelines provided in the City's Water Division Regulations, issued pursuant to City Ordinances. Under those Regulations, the water account may be established in either the name of the tenant or the landowner when the City provides water service to a rental property. Pursuant to Water Division Regulation 941.04(e), ¹ where a landowner has obtained the beneficial arrangement of having water service connected to the property and the tenants pay their own water bills, the landowner is held ultimately responsible for the tenant's unpaid water bills.

When a water bill is in the name of the tenant and the tenant's bill is delinquent, i.e. approximately one month overdue, a termination notice is sent to the tenant stating that water service will be terminated unless payment is made by a specified date. The notice states the reason for the termination, the action the tenant may take to avoid the termination, and the hearing procedures available to contest the reasons for the termination. At the same time notice is sent to the tenant, a water termination notice is also sent to the landowner advising of the tenant's delinquency, and the landowner's own right to a hearing to contest the termination.

If a delinquent bill has not been paid and no hearing has been requested, the tenant receives a second notice of water termination (approximately two weeks later). The landowner does not receive a second notice. However, upon inquiry, landowners have access to all information regarding the status of water accounts in the names of their tenants. According to the landowners, it takes at least thirty minutes to check the payment record of one tenant. If the water bill has not been paid by the termination date, a crew is sent to give final notice and shut off the tenant's water. ²

Pursuant to City Ordinance and Water Division Regulations, the landowner is held primarily liable for all charges for each water service account at the owner's premises. Therefore, when a tenant moves out of the premises without paying a delinquent water bill, the City of Mansfield Utilities Collection Department transfers the delinquency to the landowner's account. The landowner receives notice of the transfer. The landowners may request that water service to the property be terminated to avoid the transfer of additional delinquencies to their accounts.

The City's water department will not establish new service to any person who has a delinquent water service account. Because of the administrative difficulties involved in tracking the movements of all tenants, the City keeps track of delinquencies by property and not by person.

When a property is sold and the new purchaser receives a water bill for delinquencies incurred by the former owner or tenant, the purchaser merely needs to provide the Utility Collection Department with evidence of the purchase in order to negate his responsibility for the bill. However, in the event a lien has been placed on the tax record and duplicate by the County Auditor for delinquent water bills prior to the time of the purchase, then the new purchaser is obligated to pay the charges.

Whenever "customers" or "consumers" ³ have a dispute regarding water service and bill collection, they may request a hearing by filling out a "Form-6" provided by the water department. Once a customer has properly requested a hearing to contest any charge assessed by the City, the customer is not required to pay the bill in question unless and until ordered to do so by the decision of the hearing officer or upon settlement of the dispute.

Upon receipt of the written request for hearing, the Utility Collections Department sends a notice of hearing and of hearing rights, setting forth the time and date of the hearing, to the requesting party. ⁴ At the hearing, the customer may present evidence or testimony and may be represented by an attorney. After hearing the evidence, a decision is issued by the Board of Utility Appeals.

As of March 1, 1991, according to the records of the Manager of the Utility Collections Department, the plaintiffs together owed $30,551.00 for water and sewer service provided their properties. Due to these delinquencies, the plaintiffs were not permitted to put new water service in their own names.

On June 20, 1988, the plaintiffs filed their complaint with the District Court, alleging that the manner in which the City provides water service, collects delinquent water bills, and resolves disputes regarding such water service, violated their right to due process under the Fourteenth Amendment. On October 23, 1991, the District Court granted summary judgment in favor of the defendants, finding that the City's policies and practices did not violate the due process clause. The court further found that plaintiffs' section 1983 claims were barred by their failure to pursue adequate state remedies, and the appropriate statute of limitations was Ohio's two-year residual or general statute of limitations for personal injury actions. This appeal followed.

II.

Plaintiffs contend that the District Court erred in granting summary judgment for the defendants. We review a grant of summary judgment de novo, making all reasonable inferences in favor of the non-moving party. EEOC v. University of Detroit, 904 F.2d 331, 332 (6th Cir.1990). Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to summary judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The inquiry is whether there is sufficient evidence supporting a factual dispute that a judge or jury is required to "resolve the parties differing versions of the truth at trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968)).

Plaintiffs claim that in granting summary judgment, the District Court relied upon the defendants' factual assertions and ignored issues of fact raised by the plaintiffs. However, in its decision, the District Court set forth the facts based upon the affidavit of Plaintiff Wallace Toward. "Despite extensive discovery, this affidavit is the sole document referred to by the plaintiffs," in their opposition to the motion for summary judgment. To summarize, this affidavit contended that: (1) defendants had delinquent tenants' accounts transferred for payment to accounts in the name of plaintiffs; (2) defendants transferred to plaintiffs' account for payment, delinquent sums not paid by previous owners on properties which plaintiffs now own but did not own when the delinquencies were established; (3) plaintiffs were told by Water Division personnel that landlords do not have a hearing right under water regulations; (4) the City refused to credit plaintiffs' accounts when a tenant paid a delinquent account; and (5) the City refused to establish or reestablish water service to the property unless plaintiffs paid the assessment amounts accrued and unpaid by the former owner or tenants. Contention number one is undisputed. Numbers two and four are undisputed to the extent that the new owners had to pay if a lien was already established or the new owner failed to provide proof of purchase. The District Court accepted all the contentions as true and still found no dispute as to any material issues of fact. In addition, these "litany of abuses" were enunciated by the plaintiffs in order to support their procedural due process claim, not to raise genuine issues of material fact. Therefore, we focus on the question of whether the defendants were entitled to summary judgment as a matter of law.

III.

Plaintiffs contend that the City of Mansfield's practices constitute deprivation of property without due process. This Court has analyzed section 1983 actions based on deprivations of due process as falling into two categories: violations of procedural due process and violations of substantive due process; the latter being further subdivided into: (1) deprivations of a particular constitutional guarantee and (2) actions that "shock the conscience." Braley v. City of Pontiac, 906 F.2d 220, 224-25 (6th Cir.1990).

A.

In order for plaintiffs to demand due process protection under the Fourteenth Amendment, they must possess a constitutionally protected liberty or property interest in continued water service. It...