Plassman v. City of Wauseon, 95-3736

• Citation: 85 F.3d 629
• Decision Date: 14 May 1996
• Docket Number: No. 95-3736,95-3736
• Parties: NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Otis W. PLASSMAN and Joyce A. Plassman, Plaintiffs-Appellants, v. CITY OF WAUSEON, a Municipal Corporation; Perry Rupp, Individually and as Receiver; Tom Hall, Zoning Inspector; James Gamber, Fire Chief; Jerry G. Matheny, Mayor; and Clair W. Clark, President of Council, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 629

85 F.3d 629

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Otis W. PLASSMAN and Joyce A. Plassman, Plaintiffs-Appellants, v. CITY OF WAUSEON, a Municipal Corporation; Perry Rupp,

Individually and as Receiver; Tom Hall, Zoning Inspector;

James Gamber, Fire Chief; Jerry G. Matheny, Mayor; and

Clair W. Clark, President of Council, Defendants-Appellees.

No. 95-3736.

United States Court of Appeals, Sixth Circuit.

May 14, 1996.

Before: MILBURN and BOGGS, Circuit Judges; and BORMAN, ^* District Judge.

MILBURN, Circuit Judge.

Plaintiffs Otis W. Plassman and Joyce A. Plassman appeal the district court's grant of summary judgment in favor of defendants, Receiver Perry Rupp, in his individual and official capacities; City of Wauseon Zoning Inspector Tom Hall; Fire Chief James Gamber; Mayor Jerry G. Matheny; President of Wauseon City Council Clair W. Clark; and the City of Wauseon, Ohio, in this civil rights action brought under 42 U.S.C. § 1983. Plaintiffs allege that defendants violated their constitutional rights by destroying their property, which had been declared a nuisance. On appeal, the issues are (1) whether the district court erred in converting defendants' motions to dismiss plaintiffs' amended complaint under Federal Rule of Civil Procedure ("Fed.R.Civ.P.") 12(b)(6) into motions for summary judgment; (2) whether the district court erred in dismissing, on the basis of res judicata, plaintiffs' claim that defendants' destruction of their property violated their due process rights; (3) whether the district court erred in dismissing plaintiffs' claim that defendants violated their First Amendment rights by seeking to enforce a court order in retaliation for the exercise of their right of access to the courts; and (4) whether the district court erred in dismissing plaintiffs' claims against Receiver Rupp. For the reasons that follow, we affirm.

I.

A.

On April 27, 1992, plaintiffs Otis and Joyce Plassman purchased property in Wauseon, Ohio. The property, commonly known as Kolb Feed Mill, is located at 135 Commercial Street in downtown Wauseon. Although defendants contend that plaintiffs used the property as a "junk yard," plaintiffs assert that they used the property as a "recycling facility." The Plassmans were issued citations for violating the City of Wauseon Zoning Code, the City of Wauseon Maintenance Code, State of Ohio and City of Wauseon Fire Codes, and the State of Ohio Basic Building Code. Plaintiffs were served with notice of these violations by the Ohio Department of Industrial Relations, the City of Wauseon Department of Zoning, Building, and Housing, and the City of Wauseon Fire Chief. Plaintiffs did not effect any form of administrative appeal with respect to these citations.

On November 18, 1992, the City of Wauseon filed an action in the Court of Common Pleas of Fulton County, Ohio, to have the property declared a nuisance and to enjoin further and continued violations of the various city and state codes. The Plassmans filed an answer pro se, and at a pretrial hearing, the court set a hearing date and advised the Plassmans of the necessity of obtaining counsel for that hearing. The Plassmans could not find an attorney to represent them at the hearing, and the court refused to grant a continuance. On March 18, 1993, the court entered judgment in favor of the City of Wauseon. The court found that the Plassmans' use of their property violated city zoning, maintenance, and fire codes and that the condition of the building on the property violated the state building code. The court further determined that because the Plassmans had not effected administrative appeals, they were estopped to deny that the violations existed.

The court's judgment ordered the Plassmans to remove all materials, recyclables, and junk from the property by May 3, 1993, and ordered them to submit to the Wauseon City law director a contract for either the repair or the demolition of the building on the property by June 1, 1993. The court further held that if the Plassmans failed to comply with its orders by the specified dates, the court would appoint a receiver who would be authorized to take charge of the premises and all personal property. The court's judgment further authorized the receiver to sell all of the personal property on the premises and to obtain a contract to repair or demolish the building.

The Plassmans appealed to the Court of Appeals for Fulton County, Ohio. In their appeal, they requested a stay of the trial court's March 18, 1993 judgment and challenged the court's judgment on various constitutional grounds. The appellate panel held a conference with the Plassmans' attorney at that time, James Hitchcock, and the Wauseon City law director, and the parties agreed that the stay would be granted provided that the Plassmans removed all of the junk on the property by June 20, 1993. However, the Plassmans did not remove the junk, and the stay was lifted. On February 25, 1994, the court of appeals affirmed the lower court's decision. The Plassmans sought leave to appeal to the Ohio Supreme Court, but the court denied jurisdiction.

On June 20, 1994, defendant Perry Rupp was appointed receiver, at the City's request, to abate the nuisance. Pursuant to the court judgment, Rupp seized all personal property on the premises, including several vehicles. Rupp hired salvage operators who sold the ferrous and non-ferrous materials to various dealers in used metals.

In a letter to the Plassmans' counsel dated July 27, 1994, Jeffrey Robinson, Wauseon City law director, stated that the City would be willing to allow the building on the property to remain standing if the Plassmans would comply with the directives of the State of Ohio by providing the City with plans for rehabilitation of the building from a certified engineer or architect and proof that a contract with a builder had been entered into that indicated that the building would be rehabilitated within a specified time frame. Robinson stated that if the Plassmans accomplished these things, the City would enter into a joint judgment entry that would stop the receiver from taking any further action.

B.

On July 29, 1994, without taking any steps to accomplish the requirements stated in the letter, the Plassmans filed an action under 42 U.S.C. § 1983 in federal court, alleging constitutional violations and seeking a temporary restraining order to prevent Receiver Rupp from demolishing the building on plaintiffs' property. The Plassmans now claim that a city council meeting was held two days later, on August 1, 1994, at which the City changed its position from being willing to allow the building to stand if the Plassmans abated the nuisance to urging its demolition, as a result of their lawsuit against the City. The district court denied plaintiffs' motion for a temporary restraining order on August 3, 1994.

The Plassmans subsequently filed a motion in the Court of Common Pleas of Fulton County, Ohio, seeking to remove defendant Rupp as receiver and seeking a temporary restraining order to prevent their building's destruction. The court denied the motion on August 10, 1994. On October 17, 1994, the Ohio Court of Appeals held that the lower court's order was not final and dismissed the Plassmans' appeal sua sponte.

On August 17, 1994, the City of Wauseon, Zoning Inspector Tom Hall, Fire Chief James Gamber, Mayor Jerry G. Matheny, and the President of the City Council, Clair W. Clark (collectively referred to as "the City defendants") filed a motion to dismiss plaintiffs' complaint under Fed.R.Civ.P. 12(b)(6). Defendant Rupp also filed a motion to dismiss on September 30, 1994. On October 20, 1994, plaintiffs filed an amended complaint that added a claim against the City defendants that alleged that their decision to seek the demolition of the building on plaintiffs' property, after the City law director had stated that the City would not do so if plaintiffs complied with the terms of the state court's March 18, 1993 judgment, was motivated by plaintiffs' lawsuit against the City and constituted retaliation in violation of their First Amendment rights. Plaintiffs also sought various injunctions against further actions by defendants with regard to the property.

On February 9, 1995, the City defendants filed a Fed.R.Civ.P. 12(b)(6) motion to dismiss plaintiffs' amended complaint. Plaintiffs filed notices of depositions on February 17, 1995, and on April 6, 1995. On April 13, 1995, the district court converted defendants' motions to dismiss into motions for summary judgment and granted the motions. The building on plaintiffs' property was subsequently demolished. On April 28, 1995, plaintiffs filed a Fed.R.Civ.P. 59(e) motion to vacate judgment. The district court denied the motion on May 30, 1995, and this timely appeal followed.

II.

A.

Plaintiffs argue that the district court improperly converted defendants' motions to dismiss plaintiffs' amended complaint into motions for summary judgment. Plaintiffs assert that the district court erred by failing to provide plaintiffs with notice of its intention to treat the motions to dismiss as motions for summary judgment. Fed.R.Civ.P. 12(b) requires that "if matters outside the pleading are presented to and not excluded by the court" in a motion to dismiss under subsection (6), that motion "shall be treated as one for summary judgment." The rule also requires that such a motion be "disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56." See United Bhd. of Carpenters & Joiners of Am. v. Ohio Carpenters Health & Welfare Fund, 926 F.2d 550, 558 (6th Cir.1991) ("Where one party is likely to be surprised by...