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Logan v. Township of West Bloomfield

United States District Court, E.D. Michigan, Southern Division

July 31, 2018

Kevin Logan, Plaintiff,
v.
Township of West Bloomfield, Eric Beauchamp, Gary Crimaldi, Bruce Eck, and Charles Woodward, Defendants.

          Stephanie Dawkins Davis Mag. Judge.

          OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [20], DENYING AS MOOT PLAINTIFF'S MOTION IN LIMINE [29], AND DENYING AS MOOT PLAINTIFF'S MOTION FOR APPOINTMENT OF A SPECIAL MASTER [36]

          JUDITH E. LEVY UNITED STATES DISTRICT JUDGE.

         This case stems from plaintiff's dissatisfaction with the existence and allegedly unlawful enforcement of mold regulations in West Bloomfield Township. Plaintiff's claim, which includes eight counts ranging from First Amendment retaliation to defamation, is one of several ongoing or concluded legal proceedings all stemming from the same underlying situation. This matter is before the Court on defendants' motion for summary judgment on all eight counts. The Court heard oral argument on March 22, 2018. For the reasons set forth more fully below, defendants' motion is GRANTED.

         I. Background

         Fundamentally, plaintiff alleges that individuals within West Bloomfield Township unlawfully withheld a building permit to do renovation work on his property. The core of plaintiff's arguments are twofold: first, that West Bloomfield Township's mold remediation requirements are constitutionally invalid; and second, that defendants' enforcement of the Township's mold remediation requirements with respect to plaintiff was unlawful because it was retaliatory. Defendants assert their building construction codes are constitutionally valid, their treatment of plaintiff was entirely in accordance with the governing construction ordinances in place in the Township, and their actions were not motivated by retaliation.

         The factual record in the case is voluminous. However, plaintiff's written and oral argument provided limited, if any, direction to the Court to assist in locating evidence to support his claims. The Court has no duty to scour the record to find factual support for a party's claims. Magnum Towing & Recovery v. City of Toledo, 287 Fed.Appx. 442, 449 (6th Cir. 2008) (“It is not the district court's . . . duty to search through the record to develop a party's claims; the litigant must direct the court to evidence in support of its arguments before the court.”) The Court reviewed the information put forward by both parties and allowed both parties to provide supplemental briefing to clarify the factual support for their arguments. What follows is a brief recitation of the relevant timeline of disputed events.

         On December 12, 2014, plaintiff purchased the property (“Littletell”) involved in the present dispute. The property was bank-owned before plaintiff purchased it. West Bloomfield Township code official and plumbing inspector Charles Woodward conducted several routine vacant property inspections in 2014, before and after plaintiff purchased Littletell. The first time mold was allegedly identified on the property was during one of those inspections: on August 25, 2014, Woodward observed a substance that appeared to be mold on the new drywall and a recently demolished wall in a family room area.[1] (Dkt. 20-2 at 9.) Another routine inspection took place on October 2, 2014; neither the property log nor the vacant property compliance request issued to the bank following that inspection indicated a problem with mold. (Dkt. 20-4 at 3-4; Dkt. 20-5 at ¶ 2-3.)

         On December 18, 2014, Woodward conducted another routine property inspection. After this inspection, the property log indicated “mold visible on new drywall and recently demoed wall in family room.” (Dkt. 20-4 at 3.) The accompanying vacant property compliance request, dated December 19, 2014, states “[m]old in home, required a licensed contractor. Mold visible on new drywall in family room.” (Dkt. 20-5 at 5.) This inspection was completed, and these records produced, prior to any meeting between plaintiff and defendants.

         On December 19, 2014, plaintiff went to the West Bloomfield Township offices to file a permit to remove closets between two bedrooms. (Dkt. 20-6 at 11.) It was during this visit to the offices that plaintiff met Woodward, and when he was alerted that “there was mold in the house and that it was hazardous and that [plaintiff] had to get it remediated.” (Id.) Plaintiff indicated that it would be difficult to remediate the mold because the roof was leaking; Woodward initially indicated that no one would be going in the house and no permits would issue until the mold was remediated, but ultimately agreed to issue a permit for roof work in advance of the remediation. (Id.) Plaintiff states that during the conversation, Woodward was “combative and belligerent” and was unwilling to clarify for him what the precise requirements were for the mold to be satisfactorily remediated. (Id.)

         In the months following the “confrontational” conversation with Woodward, plaintiff applied for and received several building permits, including for roof repairs, a furnace replacement, duct work, window replacements, electrical work, plumbing, and bath venting. (Dkt. 20-11 at 1-13.) On February 3, 2015, plaintiff “decided [he] was going to move into the house and . . . wanted to broaden the permit.” (Dkt. 20-6 at 14.) On that day, plaintiff made another visit to the West Bloomfield Township offices. During that visit, defendant Gary Crimaldi “asked if [plaintiff] had worked out that mold thing with [defendant] Woodward.” (Id.) He confirmed that he had not.

         Plaintiff submitted his revised (“broadened”) permit request to Crimaldi via email just prior to their meeting on February 3, 2015. Plaintiff was under the impression that the permit had been granted (Id.) but the Township confirms that the initial permit was not issued because it was incomplete, and the revised permit application was not issued because the mold on the property had not yet been remediated. (Dkt. 20-13 at 6 (email from Crimaldi, stating “[t]o approve a certificate of occupancy on this property we need assurance from a professional that the property is safe for habitation.”).) Plaintiff did the work on the property despite the fact that the general construction permit had not been issued. (Dkt. 20-6 at 15.)

         Because plaintiff completed work that was beyond the scope of the permits that had been issued, West Bloomfield Township officials placed their first “stop work order” on the Littletell property on February 23, 2015. (Dkt. 20-4 at 3.) Plaintiff removed the “stop work orders” and continued to do work on the property. (Id.)

         On October 12, 2015, the property log indicates that “[m]old was removed.” (Id. at 2.) That same day, as ordered by Oakland County Circuit Court Judge Chabot, West Bloomfield Township paid for a mold inspection. (Dkt. 20-16.) The mold inspection revealed the presence of several types of mold, and indicated that “further mold remediation corrective action is necessary.” (Dkt. 20-18 at 2.)

         On October 28, 2015, West Bloomfield Township initiated code enforcement actions against plaintiff. (Dkt. 20-19.) On that day, plaintiff received a letter from Erik Beauchamp, the Township Code Enforcement Officer, which listed four violations of the Code of Ordinances for West Bloomfield Township. (Id.) Plaintiff was instructed to correct all violations prior to November 4, 2015, or “court action may be initiated.” Plaintiff was also notified that he had a right to appeal the notice and order to the Construction Board of Appeals for West Bloomfield Township within 20 days of the filing of the notice. (Id. at 2.)

         Plaintiff did not correct the violations, and on November 13, 2015, plaintiff received a summons for a court appearance on November 25, 2015 regarding property violations. Two additional summonses followed for violations of stop work orders. (Dkt. 20-20.) Plaintiff pursued several avenues to challenge the Township's mold remediation requirements, including a motion in the district court challenging the constitutionality of International Property Maintenance Code 108.1.3 and an application with the Construction Board of Appeals. Both efforts were unsuccessful. (Dkt. 20-21, Dkt. 20-22, Dkt. 20-23.) Plaintiff also filed two state court civil suits against the Township, one of which was dismissed (Dkt. 20-24), and the second of which is pending.

         II. Legal Standard

         Summary judgment is proper when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The Court may not grant summary judgment if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court “views the evidence, all facts, and any inferences that may be drawn from the facts in the light most favorable to the nonmoving party.” Pure Tech Sys., Inc. v. Mt. Hawley Ins. Co., 95 Fed.Appx. 132, 135 (6th Cir. 2004) (citing Skousen v. Brighton High Sch., 305 F.3d 520, 526 (6th Cir. 2002)).

         III. Analysis

         a. Count I: Violation of 42 U.S.C. § 1983 for First Amendment Retaliation against Individual Defendants and West Bloomfield Township

         In Count I, plaintiff asserts that he engaged in protected conduct when he spoke out in opposition against the defendants regarding their interpretation, application, and enforcement of their ordinances, codes, and regulations. This public comment took the form of written communications, court actions, and hearings before the Construction Board of Appeals for West Bloomfield Township. (Dkt. 1 at 33-34.) Plaintiff asserts that defendants unlawfully retaliated against him for his speech by action including, but not limited to “making false statements about [plaintiff], instituting criminal proceedings against [plaintiff], issuing fines, citations, stop work orders, and other penalties against [plaintiff], as well as withholding permits and services to the point that other persons of ordinary firmness would have been deterred from continuing to engage in [protected conduct.]” (Dkt. 1 at 39.)

         The individual defendants assert that they are entitled to summary judgment because they have qualified immunity against plaintiff's First Amendment claim. “[G]overnment officials performing discretionary functions are generally shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). When “a defendant raises qualified immunity as a defense, the plaintiff bears the burden of demonstrating that the defendant is not entitled to qualified immunity.” Everson v. Leis, 556 F.3d 484, 494 (6th Cir. 2009).

         Whether an official is entitled to qualified immunity depends on a two-pronged inquiry. “First, a court must decide whether the facts that the plaintiff has alleged or shown make up a violation of a constitutional right. . . . Second, if a plaintiff has satisfied this first step, the court must decide whether the right at issue was ‘clearly established' at the time of the defendant's alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009). For a right to be clearly established, the law “must dictate, that is truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what defendant is doing violates federal law in the circumstances.” Gragg v. Ky. Cabinet for Workforce Dev., 289 F.3d 958, 964 (6th Cir. 2002).

         In this case, plaintiff is alleging that his First Amendment rights were violated. To prove a First Amendment retaliation claim, “a plaintiff must show that (1) he was participating in a constitutionally protected activity; (2) defendant's action injured plaintiff in a way likely to chill a person of ordinary firmness from further participation in that activity; and (3) in part, plaintiff's constitutionally protected activity motivated defendant's adverse action.” Center for Bio-Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807, 821 (6th Cir. 2007).

         The Court will assume, without deciding, that plaintiff's activities of speaking out against the defendants and challenging their interpretation and application of building code regulations is constitutionally protected activity. The Court will further assume, without deciding, that defendants' actions including instituting criminal proceedings and issuing fines is injurious in a way that is likely to chill a person of ordinary firmness from further participation in that activity.

         To satisfy the third element, plaintiff must

“proffer evidence sufficient to raise the inference that his or her protected activity was a motivating factor for the adverse decision. Circumstantial evidence, like the timing of events or the disparate treatment of similar individuals, may support this inference. Once a plaintiff has met his or her burden of establishing that his or her protected conduct was a motivating factor behind the adverse conduct, the burden of production shifts to the defendant. If the defendant can demonstrate that it would have taken the same action in the absence of the protected activity, it has met its burden and is entitled to summary judgment if it can show affirmatively that there is no genuine issue in dispute.”

Tucker v. City of Richmond, Ky., 388 F.3d 216, 220 (6th Cir. 2004).

         In this case, defendants assert that plaintiff proffers no evidence that plaintiff's speech was a motivating factor in the decisions regarding the building permit and inspections. Defendants do provide evidence that “the individual defendants did not make or participate in the decision to place the building permit on hold or withhold inspections.”[2] Additionally, they proffer evidence that there was no disparate treatment because the Township required mold testing from other similarly situated property owners.[3] Finally, defendants point to evidence that the same action would have been taken even in the absence of any alleged protected conduct: plaintiff's permit was not issued because his application was incomplete. (Dkt. 20-7 at 5-6 (defendant Crimaldi's deposition testimony describing the regular process of verifying the completeness of a building permit application).) Defendants emphasize that plaintiff admits that “he was informed on December 19, 2014, before he ever began [engaging in the allegedly protected conduct], that no permit would be issued and that no one could go into the house.” (Dkt. 20-6 at 11.)[4]

         Plaintiff points to an extensive email conversation between plaintiff and individual defendants to support his assertion that defendants' “prior, protected conduct was a substantial or motivating factor leading to the alleged retaliatory action.” (Dkt. 20-13.) Plaintiff's brief does not direct the Court to a particular portion of the eleven-page exchange. At oral argument, plaintiff argued that the portion of the email correspondence between defendant Woodward and plaintiff, in which Woodward emphasized that his credentials would not be questioned, was sufficient circumstantial evidence for the Court to conclude that defendant's conduct was retaliatory.

         Plaintiff's argument that defendants “persisted in withholding [ ] services even after [the State rejected] defendants' purported legal authority for withholding such services” does not support his claim that defendants were acting in a retaliatory manner. It simply affirms that defendants cited the incorrect regulatory provision when first questioned by plaintiff.[5]

         In light of this, plaintiff has failed to raise a material question of fact regarding defendants' motive for failing to issue a building permit. Defendants have proffered evidence to demonstrate that - from the first inspection of plaintiff's property after he purchased it - mold was identified and the permit was put on hold. To the extent that plaintiff engaged in protected conduct after the permit was put on hold, he has provided no evidence that his protected conduct resulted in any further retaliatory action. Defendants maintained their initial position that the permit would not issue until the mold was remediated.

         Because the Court finds no question of material fact regarding the existence of a constitutional violation, defendants are entitled to qualified immunity. Summary judgment is granted for the defendants on Count I.

         b. Count II: Violation of Procedural Due Process and Equal Protection against ...


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