Opinion
Case No. C2-99-088
June 27, 2003
MEMORANDUM ORDER
After being remanded by the Sixth Circuit, this matter is currently before the Court on supplemental cross-motions for summary judgment. (Record at 65 and 67). Also pending are Plaintiffs' objections to Magistrate Judge Abel's order denying their motion to compel discovery. (Record at 68).
I. Background and Procedural History
The facts giving rise to this lawsuit are set forth in detail in this Court's October 30, 2000 Memorandum and Order. To summarize, on December 3, 1998, Defendant John Cross, a Code Enforcement Officer with the Department of Trade and Development for the City of Columbus, went to the home of Plaintiffs Bonnie Sell and Natalie Cuckler to investigate a complaint of unsanitary conditions. Upon arrival, he discovered two elderly women, mother and daughter, living in a two-bedroom house with thirty-three dogs and four birds. Twenty-one of the dogs lived inside the house; the others were housed in kennels in the back yard. Officer Cross found an accumulation of feces in the dog cages inside the house. Since Ms. Sell had been sick with the flu, she had been unable to clean the cages as often as she usually did.
Officer Cross determined that an emergency existed requiring immediate action to protect the health and safety of the women. After consulting with more experienced Code Enforcement Officers on the scene and with his supervisor, Defendant Anthony Arnold, Officer Cross issued an Emergency Vacate Order, requiring the women to leave their house immediately and not to return until it was cleaned up.
Plaintiffs later filed suit seeking relief under 42 U.S.C. § 1983, alleging violations of the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. Defendants include: Code Enforcement Officers John Cross, Michael Bartley and Kenneth Reed; their supervisor, Anthony Arnold; and the City of Columbus. Plaintiffs alleged that the Code Enforcement Officers were not authorized to issue Emergency Vacate Orders. Plaintiffs further alleged that, because no true emergency existed, they should have been given the opportunity for a hearing prior to being evicted. Plaintiffs also claimed that the City of Columbus was liable for its failure to train its Code Enforcement Officers about constitutional due process requirements. In addition, Plaintiffs asserted claims of negligence and intentional infliction of emotional distress.
The parties filed cross-motions for summary judgment. On October 30, 2000, this Court issued an order denying Plaintiffs' motion for summary judgment, granting Defendants' motion for summary judgment on the § 1983 claims, and dismissing without prejudice the state law claims. On appeal, the Sixth Circuit reversed and remanded the case for "further factual development." This Court then directed the parties to submit supplemental motions for summary judgment limited to the following issues raised by the Sixth Circuit:
• Whether either Cross or his supervisor, Code Enforcement Officer Arnold, were duly authorized designees of the Director of the Department of Trade and Development for the purpose of ordering an emergency eviction pursuant to § 4509.06 of the Columbus City Code (Corrected Sixth Cir. Op. at 13, 18);
• If Cross and Arnold were not so authorized, whether the City's custom and policy of allowing unauthorized officials to order emergency evictions was a proximate cause of the alleged deprivation of Plaintiffs' due process rights (Id. at 13-14);
• The extent of training and instruction the City provided to its Code Enforcement Officers about their constitutional duty to provide a pre-eviction hearing in all but extraordinary situations where exigent circumstances preclude them from doing so (Id. at 16); and
• Whether a reasonable Code Enforcement Officer, under the circumstances of this case, after finding that the dog feces posed a risk to human health and that an emergency existed requiring immediate action, would have determined, consistent with § 4509.06(b) of the City Code, that the health and safety risks posed by this particular emergency were such that immediate eviction without a hearing was necessary. (Id. at 24). Involved in this issue are questions concerning Ms. Sell's illness and whether consideration was given to immediate action options other than vacating the home immediately. (Id. at 19, 24).
The supplemental motions for summary judgment have been fully briefed and are ripe for decision.
II. Plaintiff's Objections to Magistrate Judge Abel's Order Denying Motion to Compel
On February 6, 2003, Magistrate Judge Abel issued an Order denying as moot Plaintiffs' motion to compel discovery. On February 18, 2003, Plaintiffs filed objections to that Order, claiming that they had not yet received Defendant Arnold's job description. On March 3, 2003, Defendants filed a response indicating that the requested document had been provided to Plaintiffs. Plaintiffs' objections to Magistrate Judge Abel's Order are therefore moot.
III. Cross-Motions for Summary Judgment
Plaintiffs have moved for summary judgment arguing that: (1) Code Enforcement Officers have no authority to issue Emergency Vacate Orders; (2) the individual defendants are not entitled to qualified immunity; and (3) the City of Columbus is liable based on its custom and practice of allowing unauthorized officials to issue Emergency Vacate Orders, its failure to provide a mechanism whereby Code Enforcement Officers could request an emergency hearing prior to issuing Emergency Vacate Orders, and its failure to train its Code Enforcement Officers concerning the constitutional requirement of a pre-eviction hearing in all but the most extraordinary circumstances.
Defendants have also moved for summary judgment. They contend that: (1) Code Enforcement Officers were duly authorized to issue Emergency Vacate Orders; (2) the individual defendants are entitled to qualified immunity; and (3) there is no basis for imposing municipal liability.
A. Standard of Review
Federal Rule of Civil Procedure 56(c) provides:
[Summary judgment] . . . shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
"[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original); Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984).
Summary judgment will not lie if the dispute about a material fact is genuine; "that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. The purpose of the procedure is not to resolve factual issues, but to determine if there are genuine issues of fact to be tried. Lashlee v. Sumner, 570 F.2d 107, 111 (6th Cir. 1978). Therefore, summary judgment will be granted "only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is . . . [and where] no genuine issue remains for trial, . . . [for] the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try." Poller v. Columbia Broadcasting Sys., 368 U.S. 464, 467 (1962) (quoting Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627 (1944)); accord County of Oakland v. City of Berkley, 742 F.2d 289, 297 (6th Cir. 1984).
In making this inquiry, the standard to be applied by the Court mirrors the standard for what was formerly referred to as a directed verdict.Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Anderson, 477 U.S. at 250.
"The primary difference between the two motions is procedural; summary judgment motions are usually made before trial and decided on documentary evidence, while directed verdict motions are made at trial and decided on the evidence that has been admitted." Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 745, n. 11 (1983). In essence, though, the inquiry under each is the same: whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.Anderson, 477 U.S. at 251-52. Accordingly, although summary judgment should be cautiously invoked, it is an integral part of the Federal Rules, which are designed "to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).
In a motion for summary judgment the moving party bears the "burden of showing the absence of a genuine issue as to any material fact, and for these purposes, the [evidence submitted] must be viewed in the light most favorable to the opposing party." Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970) (footnote omitted); accord Adams v. Union Carbide Corp., 737 F.2d 1453, 1455-56 (6th Cir.). cert. denied, 469 U.S. 1062 (1984). Inferences to be drawn from the underlying facts contained in such materials must also be considered in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Watkins v. Northwestern Ohio Tractor Pullers Ass'n, 630 F.2d 1155, 1158 (6th Cir. 1980). Additionally, "unexplained gaps" in materials submitted by the moving party, if pertinent to material issues of fact, justify denial of a motion for summary judgment. Adickes, 398 U.S. at 157-60.
If the moving party meets its burden and adequate time for discovery has been provided, summary judgment is appropriate if the opposing party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. The existence of a mere scintilla of evidence in support of the opposing party's position is insufficient; there must be evidence on which the jury could reasonably find for the opposing party. Anderson, 477 U.S. at 252.
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 the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
B. Authority to Issue Emergency Vacate Orders
Citing § 4509.06 of the Columbus City Code, Plaintiffs have argued that the defendant Code Enforcement Officers had no authority to issue the Emergency Vacate Order in question. The ordinance at issue reads as follows:
(a) Whenever the development regulation administrator finds that an emergency exists which requires immediate action to protect the public health and safety or health and safety of any person, he may issue an order reciting the existence of such emergency and requiring that such action as he deems necessary be taken to meet the emergency. Notwithstanding the other provisions of this Housing Code, such order shall be effective immediately and complied with immediately.
(b) If necessary to protect the public health and safety or the health and safety of any person where an emergency exists in an occupied building, the administrator shall order that the premises be vacated forthwith and further that they shall not be reoccupied until the conditions causing the emergency to exist have been abated and approved by the administrator.
Columbus City Code § 4509.06. Section 4501.073 of the Columbus City Code defines a "Code Enforcement Officer" as the "development regulation administrator or any of his duly authorized representatives."
In its October 30, 2000 Memorandum and Order, the Court acknowledged that the plain language of § 4509.06 gives only the "development regulation administrator" the authority to issue Emergency Vacate Orders. However, the Court also noted that the Development Regulation Division of the City of Columbus was apparently abolished effective February 8, 1998 and all of its regulations repealed. See Columbus City Code § 215.04; Ordinance No. 169-98. In its place now stands the Department of Trade and Development. See Columbus City Code § 215.01. On the date in question, all Code Enforcement Officers were employed by that department. The references to the "development regulation administrator" appeared to be inadvertently carried over from the time when the Development Regulation Division still existed.
Despite the restrictive language of Columbus City Code § 4509.06, the Court concluded that Code Enforcement Officers were authorized to issue Emergency Vacate Orders. The Court relied on the deposition testimony of Michael Farrenkopf, Property Management Specialist, and Manager of the Code Enforcement Section of the Building and Development Services Section of the Department of Trade and Development for the City of Columbus. He testified that Code Enforcement Officers are charged with enforcing the Housing Code and are authorized to determine whether a dwelling unit is so unsanitary that it is unfit for human habitation. (Farrenkopf Dep. at 10). The Court also noted that the last line on Form HC6, the City's pre-printed Emergency Vacate Order form, contains a signature line for "Code Enforcement Officer." (Ex. 2 to Cross Aff.).
On appeal, the Sixth Circuit found that while Farrenkopf's testimony and the pre-printed form were evidence of the City's practice of allowing Code Enforcement Officers to issue Emergency Vacate Orders, they were not evidence that the practice is authorized by law. The Sixth Circuit held that "further factual development" was needed on this issue. It reasoned that if the Development Regulation Administrator position no longer existed, power to issue Emergency Vacate Orders was transferred to the person holding the equivalent position after the reorganization, i.e., the Director of the Department of Trade and Development. It also followed that since Code Enforcement Officers had been "duly authorized representatives" of the Development Regulation Administrator, they were now "duly authorized representatives" of the Director of the Department of Trade and Development. (Corrected Sixth Circuit Op. at 12-13).
The Court noted that, in 2001, the Columbus City Code was again amended to define "director" as the "director of the department of trade and development or his or her designee." Columbus City Code § 4501.085. Even though Code Enforcement Officers were duly authorized representatives of the Director of the Department of Trade and Development, the Court held that this does "not necessarily mean that each and every Code Enforcement Officer is a designee of the director" for purposes of issuing Emergency Vacate Orders. (Corrected Sixth Cir. Op. at 12-13). The Sixth Circuit noted that the use of the term "designee" implies a specific, affirmative action by the director designating a person to act in his or her stead. It held that further evidence was needed to determine whether the defendant Code Enforcement Officers were "duly authorized designees" of the Director of the Department of Trade and Development for the purpose of issuing Emergency Vacate Orders.
Like Defendants, this Court questions the applicability of the 2001 amendment to the Columbus City Code to an incident that occurred in 1998.
After reviewing the additional evidence submitted in connection with the supplemental motions for summary judgment, this Court concludes, as a matter of law, that the defendant Code Enforcement Officers were, in fact, authorized to issue Emergency Vacate Orders. Defendants have submitted affidavits from George Arnold, the Director of the Department of Trade and Development, and Kathy Kerr, his Deputy Director. Mr. Arnold testified that:
2. . . . Code Enforcement Officers (including supervisors) were my duly authorized representatives to enforce the provisions of the Columbus Housing Code and to issue notices and orders consistent with the provisions of the Code. Code Enforcement Officers (including supervisors) were authorized by me to issue "emergency orders," as provided for in Columbus City Code § 4509.06, and to make such orders as my authorized representatives.
3. This delegation of authority to Code Enforcement Officers (including supervisors) included the authority to determine the need for an emergency order as provided for in Columbus City Code § 4509.06(b). and to make an order that the premises be vacated forthwith, if the circumstances warranted.
4. Training and supervision, at my direction, were provided with reference to this delegation of authority to Code Enforcement Officers (including supervisors). It was my intention, belief and understanding, therefore, that Code Enforcement Officers (including supervisors) carried out the functions and duties referenced herein. This authorization and delegation of duties was consistent throughout my tenure as Director.
5. . . .
6. On December 3, 1998, John Cross and his supervisor, Anthony Arnold, were my duly authorized designees for the purpose of ordering an "immediate vacate" pursuant to § 4509.06(b) of the Columbus City Code.
(Arnold Aff. ¶¶ 2-4, 6, Ex. to Defs.' Supp. Mot. Summ. J.).
Kathy Kerr averred the same. (Kerr Aff., Ex. to Defs.' Supp. Mot. Summ. J.). She noted that on December 3, 1998 no one held the title of "Development Regulation Administrator." As the Deputy Director of the Department of Trade and Development, she was responsible for overseeing code enforcement on that date. (Id. at ¶ 2). Code Enforcement Officers were authorized to issue Emergency Vacate Orders. (Id. at ¶ 3).
In their supplemental motion for summary judgment, Plaintiffs argue that Ordinance 169-98 did not abolish the Development Regulation Division, but merely eliminated the requirement that it exist as a subunit within the Department of Trade and Development. Even if this is true, it is largely irrelevant. As Ms. Kerr's affidavit indicates, on the date in question, no one was serving as the "Development Regulation Administrator." As the Sixth Circuit has already held, the power to issue Emergency Vacate Orders was logically transferred to the person holding the equivalent position, i.e., the Director of the Department of Trade and Development. The only relevant inquiry is whether he in turn delegated that authority to any of his employees.
In this Court's view, the affidavits of George Arnold and Kathy Kerr are sufficient to establish that, on the date in question, the Director of the Department of Trade and Development had designated all Code Enforcement Officers as his duly authorized designees for the purpose of issuing Emergency Vacate Orders. Plaintiffs have failed to present any evidence to refute these sworn statements. Plaintiffs argue only that the specific delegation of authority must be embodied in a statute, ordinance, or the common law. It is undisputed that no such delegation of authority exists, but none is required. In the alternative, Plaintiffs argue that the delegation of authority must be memorialized in a document signed by the Director listing, by name, each individual Code Enforcement Officer authorized to issue Emergency Vacate Orders. Citing portions of the Sixth Circuit's opinion, Plaintiffs further contend that it would be unconstitutional for the Director to broadly delegate authority to issue Emergency Vacate Orders to all Code Enforcement Officers.
Plaintiffs' concerns are based on a faulty interpretation of the Sixth Circuit's opinion. The Sixth Circuit stated:
As a general rule of interpretation, Columbus permits authority given by the City Code to an officer to be exercised by a "deputy or subordinate, unless contrary to law or to the clear intent of any such particular provision." Columbus City Code § 101.03(a). In this case, the language of § 4501.085, referring to "the director of the department of development or his or her designee," signals a clear intent that the exercise of the director's authority be limited to that individual or to those individuals specifically designated, rather than all of the employees of the Department of Trade and Development (including the Code Enforcement Officers), who are subordinate to the director. In addition, in light of Flatford's mandate that statutes authorizing emergency eviction without a hearing be "narrowly drawn," any interpretation of the Columbus housing code that widely and indiscriminately delegates authority to evict residents without a hearing would be contrary to law.
(Corrected Sixth Cir. Op. at 13).
In other words, it is contemplated that the Director will delegate authority to issue Emergency Vacate Orders to certain employees of the Department of Trade and Development. The Sixth Circuit implied that it would be unconstitutional for the director to authorize all employees of the Department of Trade and Development to issue such orders. However, delegating that authority to a subsection of departmental employees, specifically all Code Enforcement Officers who are charged with enforcing the building code, is not the kind of "wide" and "indiscriminate" delegation of authority mentioned by the Sixth Circuit.
The Sixth Circuit held that Defendants are entitled to summary judgment on this issue if the evidence on remand shows that Officers Cross and Arnold were duly authorized designees of the Director of the Department of Trade and Development for the purpose of ordering an emergency eviction pursuant to § 4509.06(b) of the Columbus City Code. (Corrected Sixth Cir. Op. at 13). Finding no genuine issue of material fact, the Court concludes, as a matter of law, that Defendants John Cross and Anthony Arnold were the duly authorized designees of the Director of the Department of Trade and Development for the purpose of ordering an emergency eviction pursuant to § 4509.06(b) of the Columbus City Code.
C. Municipal Liability
A municipality may be held liable under 42 U.S.C. § 1983 if an official policy or custom of that municipality was a moving force behind the alleged deprivation of constitutional rights. See Monell v. Dep't of Soc. Serv., 436 U.S. 658, 694-95 (1978). Municipal liability may attach where its failure to train its employees rises to the level of a deliberate indifference to the constitutional rights of its citizens.See City of Canton v. Harris, 489 U.S. 378, 389 (1989).
Plaintiffs have alleged that the City of Columbus should be held liable on two grounds. First, Plaintiffs contend that the City's alleged custom and policy of allowing unauthorized officials to order emergency evictions was a proximate cause of the alleged deprivation of Plaintiffs' due process rights. However, since the Court has already concluded that Code Enforcement Officers were authorized to issue Emergency Vacate Orders, it follows that Defendants are entitled to summary judgment on this claim.
Second, Plaintiffs contend that the City of Columbus is liable under § 1983 for failing to train its Code Enforcement Officers that, except for extraordinary situations, the Constitution requires that residents be given the opportunity for a hearing prior to be being evicted from their homes. In its previous Memorandum and Order, this Court concluded that because Code Enforcement Officers were adequately trained to recognize those situations in which an Emergency Vacate Order would be warranted, the City of Columbus was entitled to summary judgment.
However, on appeal, the Sixth Circuit found that the key issue is whether officers were instructed:
that the Constitution . . . prefers hearing before eviction and that accordingly, before evicting a homeowner, officers should affirmatively consider whether a particular emergency is so time-sensitive and a pre-eviction hearing would be so time-consuming that a delay of physical eviction required by a hearing would materially aggravate the conditions that the eviction is addressing.
Specifically, there is no evidence in the record that the training related to both vacate and emergency vacate orders included training for Code Enforcement Officers to differentiate between emergencies where time and circumstances do not preclude a hearing, and those relatively dire emergencies posing a threat to health and safety of individuals or the public that require eviction without first holding a hearing. Indeed, there is no indication in the record that the municipality trained the Code Enforcement Officers about, for example, the time required to conduct a pre-eviction hearing and the procedures for an emergency one, perhaps analogous to the streamlined procedures police officers employ to obtain a warrant for an emergency search. Farrenkopf's testimony . . . conspicuously omits any reference as to whom a Code Enforcement Officer should call to arrange for an emergency hearing. This shortcoming is reflected in the forms provided for the officers' use: the Emergency Order form reminds an officer of the abatement alternative to forthwith physical eviction, but nothing on the form prompts the officer to consider a pre-eviction hearing.
(Corrected Sixth Cir. Op. at 15-16).
The Sixth Circuit ordered this Court, on remand, to "develop the factual record." It concluded that:
If Columbus failed to instruct or train the officers responsible for emergency evictions about their constitutional responsibility to provide a hearing in all but "extraordinary situations" where exigent circumstances preclude them from doing so, Fuentes, 407 U.S. at 82, that shortcoming is one that is so likely to lead [sic] a violation of the constitutional right to due process as to be deliberate indifference to citizens' constitutional rights, and give rise to municipal liability under § 1983.Id. at 16.
Defendant John Cross concedes that he was not specifically trained that the Constitution prefers a hearing before citizens are evicted from their homes. However, he was trained in all aspects of the Housing Code, which incorporates the Constitution's due process requirements. (Cross Answer to Interrog. No. 1, Ex. to Defs.' Supp. Mot. Summ. J). For example, Officer Cross was trained that Columbus City Code § 4509.03 provides that "[a]ny person affected by any notice which has been issued in connection with the enforcement of any provision of this Housing Code . . . may request and shall be granted a hearing." Furthermore, Officer Cross was instructed that only one section of the Housing Code permitted him to order an immediate eviction without a hearing. Columbus City Code § 4509.06(b) permitted him to order immediate eviction "forthwith" only where "necessary to protect the public health and safety or the health and safety of any person where an emergency exists in an occupied building." (Cross Aff. ¶ 4, Ex. to Defs.' Supp. Mot. Summ. J.). He was trained to identify what types of circumstances might warrant such action. (Cross Answer to Interrog. No. 2). Officer Cross was instructed that other, less drastic, options were available to remedy less serious housing code violations. For instance, he could give notice of a code violation, designate a building as unfit for habitation and provide notice of the same, or order a condemned building "vacated within a reasonable time." (Cross Aff. ¶ 5).
In this Court's view, even though Code Enforcement Officers were not specifically instructed that, absent an emergency, the due process requirements of the United States Constitution dictate that citizens be given the opportunity for a pre-eviction hearing, this does not necessitate summary judgment in Plaintiffs' favor. As Officer Cross's testimony illustrates, it is possible to be trained in the spirit of the law without using technical legal jargon. However, genuine issues of material fact still exist, precluding summary judgment in Defendants' favor.
Defendants have failed to present any evidence to address the other concern raised by the Sixth Circuit. Conspicuously absent from John Cross's affidavit is any indication that he received any specific training about the City's established hearing procedures, i.e., who must be contacted to arrange for a hearing, how much advance notice is needed, or how quickly a hearing can be arranged. While it is entirely possible that Code Enforcement Officers were given this information, there is no evidence that this was included as part of their training. The Sixth Circuit implied that without this information, it would be difficult, if not impossible, for a Code Enforcement Officer to properly assess the situation he or she is confronting and determine whether there is such a great risk to the residents that there is simply no time for a hearing. A reasonable jury could conclude that this alleged lack of training constitutes a deliberate indifference to the constitutional rights of Columbus's citizens, and creates a serious risk that people will be evicted from their homes without a hearing in cases where no true emergency exists. Summary judgment on this claim is therefore inappropriate.
The Columbus City Code provides that a hearing shall be held no later than forty-five days after the request is made. See Columbus City Code § 4509.03. Presumably, a hearing could be held much more quickly if the circumstances warranted, although it is unclear how much advance notice would be needed.
D. Qualified Immunity
The doctrine of qualified immunity shields government officials performing discretionary functions from personal liability so long as their actions do not violate clearly established constitutional rights of which a reasonable official would have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In this case, the constitutional right at issue stems from the Due Process Clause of the Fourteenth Amendment. In most situations, due process requires that residents be given notice and hearing prior to being evicted from their homes. See Fuentes v. Shevin, 407 U.S. 67, 82 (1972). However, "[a] prior hearing is not constitutionally required where there is a special need for very prompt action to secure an important public interest and where a government official is responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in a particular instance." Flatford v. City of Monroe, 17 F.3d 162, 167 (6th Cir. 1994). In other words, Plaintiffs "have a clearly established right to a pre-eviction hearing only in the absence of exigent circumstances."Id.
Plaintiffs again argue that because Defendants were not authorized to issue Emergency Vacate Orders, they could not be acting within the scope of their discretionary authority. In light of this Court's finding to the contrary, the Court also rejects Plaintiffs' argument that a qualified immunity analysis is inapplicable.
In its October 30, 2000 Memorandum and Order, this Court found that it was objectively reasonable for Defendants, confronted with the situation that existed at Plaintiffs' house on the date in question, to conclude that an emergency existed and that immediate action was required to protect the health of the two elderly residents. The Court therefore found that the individual defendants were entitled to qualified immunity on Plaintiffs' § 1983 claims against them.
The Court of Appeals agreed with this Court that "the undisputed accumulation of feces in the inside dog cages, alone, provided a reasonable basis for a Code Enforcement Officer to declare an emergency." (Corrected Sixth Cir. Op. at 20). However, a reasonable belief that an emergency existed and immediate action was required is not sufficient. There also must be a reasonable belief that the emergency was of such a nature that eviction was " necessary to protect the public health and safety or the health and safety of any person." Columbus City Code § 4509.06(b) (emphasis added). This Court had not made a specific finding of a reasonable belief of necessity for immediate eviction.
The Court of Appeals held that, based on the evidence in the record, it was error to grant the Code Enforcement Officers qualified immunity. In particular, the record was not sufficient to show whether Cross or Arnold "considered whether it was 'necessary' in the particular circumstances here to order plaintiff-appellants to vacate their home without first affording them a pre-deprivation hearing" (Corrected Sixth Cir. Op. at 21). The Court of Appeals, however, made it clear that upon remand and upon a proper record, the individual defendants could be entitled to qualified immunity.
It is quite possible that a reasonable Code Enforcement Officer, after giving the matter due consideration, could conclude that the unsanitary conditions in the Sell and Cuckler home posed such an extreme risk to the health and safety of the two elderly residents that there was not time to order abatement of the unsanitary conditions or hold a pre-eviction hearing. But it is unclear if Cross, Arnold, and the other Code Enforcement Officers engaged in this sort of analysis. The record before us indicates that Officer Cross, and his fellow officers, after determining that conditions in the Sell residence required immediate action, gave little, if any, consideration to immediate action options other than vacating the home immediately. The record does not indicate whether the officers did so because they reasonably believed an emergency eviction without awaiting even an expedited hearing was necessary under the circumstances to protect plaintiffs' health and safety (and simply failed to articulate this in their deposition testimony), or because they never considered the constitutional and statutory limitations on evictions without a hearing.
Nor does it appear that the district court focused on this issue. See J.A. at 33 ("[T]he court need only determine that a reasonable Code Enforcement Officer could conclude that immediate action was required to protect the health and safety of the Plaintiffs.") (emphasis added). There is a significant difference between "immediate action" and immediate eviction. The district court did not address the issue of whether a reasonable Code Enforcement Officer, after concluding that immediate action was required to protect plaintiff's health and safety, in accordance with § 4509.06(a), would then determine, consistent with § 4509.06(b), that the health and safety risk posed by this particular emergency was such that immediate eviction without a hearing was necessary. On remand, the district court should determine whether the officers here made such a determination.
(Corrected Sixth Cir. Op. at 23-24).
As this Court reads the Sixth Circuit's opinion on the subject of qualified immunity, the appellate court believed that a reasonable Code Enforcement Officer could conclude, but only after consideration of lesser immediate remedies available, that immediate eviction was necessary to protect the health of the two elderly residents inside the house under the circumstances that confronted the officers at the time. If the Code Enforcement Officers in the present case considered those other options, they are entitled to qualified immunity. The record on remand fully supports the conclusion that the officers did consider less drastic options prior to concluding that immediate eviction was necessary to protect Plaintiff's health. They are therefore entitled to qualified immunity.
John Cross has sworn that, prior to issuing the immediate vacate order, he did consider other options such as issuing a notice of violation and giving Plaintiffs time to clean the residence. (Cross Aff. ¶ 8). However, he ultimately determined that this was truly an emergency situation and that there was no time to conduct a hearing. He states that Ms. Sell told him that she had been ill for four days and had been unable to clean up after the dogs like she usually did. Although representatives from several social service agencies were also present at the house that day, no one offered any assistance in cleaning the cages, and Officer Cross firmly believed that continued exposure to the conditions inside the home posed a serious health risk to Plaintiffs. (Id.). Cross also notes that prior to issuing the Emergency Vacate Order, he consulted with more experienced Code Enforcement Officers, and with his supervisor, Anthony Arnold. (Id. at ¶ 7). They all concurred in his assessment of the situation, and agreed that immediate eviction was warranted. John Cross's affidavit addresses the concerns raised by the Sixth Circuit and is certainly sufficient to meet the requirements referred to by the Court of Appeals. With a more complete picture of the decision-making process, this Court can now put it in the context of the applicable case law.
Even if, in hindsight, the Code Enforcement Officers violated Plaintiffs' due process rights, they are nevertheless entitled to qualified immunity unless the unlawfulness of their conduct was readily apparent in light of clearly established law. For a right to be clearly established, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 639 (1987). Although it need not be the case that "the very action in question has been previously held unlawful, . . . in light of pre-existing law, the unlawfulness must be apparent." Id. at 640. In deciding whether the law on a particular issue is clearly established, this court must look first to decisions of the Supreme Court, then to decisions of the Sixth Circuit and other courts within the Sixth Circuit, and then to decisions of other circuits. See Daugherty v. Campbell, 935 F.2d 780, 784 (6th Cir. 1991). As noted earlier, on the date of the eviction, December 3, 1998, Plaintiffs had a clearly established right to a pre-eviction hearing unless "there is a special need for very prompt action to secure an important public interest and where a government official is responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in a particular instance." Flatford, 17 F.3d at 167.
The Court notes that the ordinance at issue permits immediate eviction where "necessary to protect the . . . health and safety of any person where an emergency exists in an occupied building." Columbus City Code § 4509.06(b). It could be argued that this ordinance is not quite as narrowly drawn as the ordinance examined by the Sixth Circuit inFlatford. That ordinance permitted immediate eviction "[i]f the building or structure is in such condition as to make it immediately dangerous to the life, limb, property or safety of the public or its occupants." 17 F.3d at 167 (citing Monroe, Mich. Ordinance No. 89-018). Nevertheless, Plaintiffs have not challenged the constitutionality of the Columbus City ordinance, and there is absolutely no evidence that anyone has challenged it before. The Code Enforcement Officers were therefore certainly entitled to presume that it was valid and to make their determination based on the language of the ordinance.
On the date in question, there were very few published opinions within the Sixth Circuit to provide guidance on this issue. In Flatford, a Monroe, Michigan building inspector ordered the tenants of an apartment building to vacate the property immediately. He believed that the absence of smoke detectors, combined with exposed electrical wiring and the presence of combustibles and wood rot rendered the premises "immediately dangerous to the life, limb, property or safety of the public or its occupants." The tenants sued. The district court held that the tenants' due process rights had been violated and that the inspector was not entitled to qualified immunity. On appeal, the Sixth Circuit found that, even viewing the evidence in a light most favorable to the tenants, the inspector's conclusion — that the conditions were serious enough to warrant an immediate eviction — was objectively reasonable. The Court therefore concluded that he was entitled to qualified immunity in connection with Plaintiffs' claim that he had violated their due process rights by failing to provide a pre-eviction hearing. See 17 F.3d at 167-168.
In its corrected opinion in the instant case, the Sixth Circuit cited two cases that further define what types of emergencies might justify eviction without a hearing. In Mitchell v. City of Cleveland, No. 97-4206, 1998 WL 898872 (6th Cir. Dec. 17, 1998), the Sixth Circuit upheld a summary judgment ruling in favor of the city, finding that city officials were justified in ordering an immediate eviction where officials found numerous code violations, including faulty heating facilities, lack of smoke detectors, and hazardous electrical conditions, that constituted an "imminent danger and peril to human life and public health, safety and welfare." Id. at **1 (citing language of a Cleveland ordinance). In Zakaib v. City of Cleveland, No. 77402, 2001 WL 406209 (Ohio Ct.App. April 19, 2001), the Eighth District Court of Appeals held that immediate eviction was warranted because of raw sewage found in a basement where food was stored, electrical violations, a gas leak, and an incorrect pitch of the flue. Id. at *7.
While Mitchell and Zakaib may shed additional light on what constitutes an emergency justifying eviction without a hearing, these two cases have little, if any, significance in the present case. Not only are they both unpublished decisions, neither of them was decided prior to the date Plaintiffs were evicted from their home. Therefore, they play no part in a determination of established law prior to December 3, 1998. Flatford, of course, had been decided and is a published opinion. However, it reached the same conclusion sought by Defendants in the present case; the Court granted qualified immunity to Code Enforcement Officers who ordered immediate eviction of residents from their homes. In this Court's view, on the date in question, there was no controlling case law that would have put the Code Enforcement Officers on notice that the situation confronting them was not sufficiently serious to justify immediate eviction.
The key question is whether a reasonable Code Enforcement Officer could have believed that his or her conduct was lawful in light of clearly established law. As the Supreme Court noted in Saucier v. Katz, 533 U.S. 194 (2001), it is sometimes difficult for a government official to determine how the relevant legal doctrine applies to the factual situation he or she is confronting. If the official makes a reasonable mistake concerning the legal limits on his or her authority to respond in a particular way, the official is entitled to qualified immunity. Id. at 205. In other words, if reasonable officials could disagree about whether an emergency situation requiring immediate eviction existed, Defendants are entitled to qualified immunity. See Thomas v. Cohen, 304 F.3d 563, 580 (6th Cir. 2002) (citing McCloud v. Testa, 97 F.3d 1536, 1553 (6th Cir. 1996)).
As John Cross has stated in his affidavit, although he considered other options available to him, he and the other officers nevertheless concluded that Plaintiffs' continued exposure to the unsanitary conditions inside the house posed such a serious risk to Plaintiffs' health that immediate eviction was necessary. This kind of judgment call falls squarely within the kind of discretionary decision-making that the doctrine of qualified immunity is designed to protect. As the Sixth Circuit held in Flatford, even if, in hindsight, it appears that a government official made a bad judgment call, the official is nevertheless entitled to qualified immunity if the conclusion was objectively reasonable in light of the information possessed at the time. See 17 F.3d at 167-68. This Court concludes that Defendants' decision to issue an Emergency Vacate Order was objectively reasonable in light of the information they possessed at the time, and the unlawfulness of their conduct was not readily apparent in light of clearly established law. For this reason, the Court concludes that the individual defendants are entitled to qualified immunity on Plaintiffs' § 1983 claim.
E. Plaintiffs' Request for Injunctive Relief
Plaintiffs also contend that the Court should issue an injunction barring the City's current procedures for issuing Emergency Vacate Orders, and ordering that only the Director may issue such orders until the City implements procedures that pass constitutional muster. Even though the Court has found that genuine issues of material fact preclude summary judgment on Plaintiffs' § 1983 "failure to train" claim against the City of Columbus, there is no need for the Court to delay in ruling on Plaintiffs' request for injunctive relief.
It is clear that Plaintiffs lack standing to seek such injunctive relief since it is highly unlikely that they will again be evicted from their home under similar circumstances without a pre-eviction hearing.See Los Angeles v. Lyons, 461 U.S. 95, 105-106 (1983) (holding that plaintiff lacked standing to seek an injunction against the enforcement of a police chokehold policy because he could not credibly allege that he faced a realistic future threat from the policy); O'Shea v. Littleton, 414 U.S. 488, 496-97 (1974). Defendants are therefore entitled to summary judgment on Plaintiffs' request for injunctive relief.
IV. Conclusion
For the reasons set forth above, Plaintiffs' supplemental motion for summary judgment and for a permanent injunction is DENIED. (Record at 65). Plaintiffs' objections to Magistrate Judge Abel's order denying their motion to compel are OVERRULED AS MOOT. (Record at 68). Defendants' supplemental motion for summary judgment is GRANTED IN PART and DENIED IN PART. (Record at 67).
Plaintiffs' claims against the individual defendants are dismissed on the basis of qualified immunity. However, the Court finds that genuine issues of material fact preclude summary judgment on Plaintiffs' claim that the City's failure to train its Code Enforcement Officers concerning the right to a pre-eviction hearing in all but the most extraordinary circumstances constituted a deliberate indifference to citizens' constitutional rights and was a proximate cause of the alleged deprivation of Plaintiffs' due process rights.
This case will therefore proceed on Plaintiffs' § 1983 claim against the City of Columbus for failure to train. A final pretrial conference will be held on July 31, 2003 at 10:00 a.m. A conference prior to trial will be held on September 5, 2003 at 10:00 a.m. and trial will commence September 8, 2003 at 9:00 a.m.