      RECOMMENDED FOR FULL-TEXT PUBLICATION
           Pursuant to Sixth Circuit Rule 206            2        Banks, et al. v. City of Whitehall, et al.    No. 01-4155
   ELECTRONIC CITATION: 2003 FED App. 0340P (6th Cir.)
               File Name: 03a0340p.06                        Before: BATCHELDER and ROGERS, Circuit Judges;
                                                                        RUSSELL, District Judge.*
UNITED STATES COURT OF APPEALS                                                  _________________
             FOR THE SIXTH CIRCUIT                                                   COUNSEL
               _________________
                                                         ARGUED: Ronald B. Noga, WELTMAN, WEINBERG &
STEWART BANKS ; BAMBI              X                     REIS, Columbus, Ohio, for Appellants. Steven Lee Smith,
                                    -                    SMITH & COLNER, Columbus, Ohio, for Appellees.
MOTEL, INC.; RICHARD H.                                  ON BRIEF: Ronald B. Noga, WELTMAN, WEINBERG &
TURNER; P.T. PROPERTIES,            -
                                    -  No. 01-4155       REIS, Columbus, Ohio, for Appellants. Steven Lee Smith,
INC.,                               -                    SMITH & COLNER, Columbus, Ohio, for Appellees.
          Plaintiffs-Appellants, >
                                    ,                                           _________________
                                    -
            v.                      -                                               OPINION
                                    -                                           _________________
CITY OF WHITEHALL; DENN IS -
J. FENNESSEY; JOHN WOLF ;           -                       ALICE M. BATCHELDER, Circuit Judge. The plaintiffs
                                    -                    appeal the district court’s order granting summary judgment
CHARLES D. UNDERWOOD;
                                    -                    to the defendants in this action brought pursuant to 42 U.S.C.
CATHY CRANDALL ; TIM                -                    § 1983, claiming that the defendants, in the course of strictly
TILTON ,                            -                    enforcing local building and fire codes in the city, took the
         Defendants-Appellees. -                         plaintiffs’ property for public use without just compensation
                                    -                    and enforced the law selectively in violation of the Fifth and
                                   N                     Fourteenth Amendments. The district court granted the
       Appeal from the United States District Court      defendants’ motion for summary judgment on several
      for the Southern District of Ohio at Columbus.     alternative grounds. First, that the plaintiffs’ claims are
    No. 99-01082—James L. Graham, District Judge.        barred by a two-year statute of limitations; second, that their
                                                         claims are barred by both claim preclusion and issue
               Argued: August 7, 2003                    preclusion; third, that their inverse condemnation and takings
                                                         claims are not ripe for review pursuant to principles set forth
       Decided and Filed: September 24, 2003             in Williamson County Regional Planning Commission v.
                                                         Hamilton Bank of Johnson City, 473 U.S. 172 (1985); fourth,


                                                              *
                                                              The Honorable Thomas B. Russell, United States District Judge for
                                                         the Western District of Kentucky, sitting by designation.

                           1
No. 01-4155     Banks, et al. v. City of Whitehall, et al.    3    4     Banks, et al. v. City of Whitehall, et al.    No. 01-4155

that the individual defendants are entitled to immunity; and       or entered into a binding contract with a real estate broker in
finally, that all of their claims are without merit.               a good faith effort to sell the property. The stipulated
                                                                   injunction required that on July 9, 1996, if the structures
   The plaintiffs do not challenge the district court’s holding    comprising the motel were still standing, they would be
that their takings and inverse condemnation claims are not         closed pending demolition or sale. Eventually, after two
ripe, and we need not address those claims on appeal.              contempt motions and several hearings, the court found that
Ewolski v. City of Brunswick, 287 F.3d 492, 516-17 (6th Cir.       Banks and the motel were in contempt and ordered the motel
2002). Because we conclude that the remaining claims are all       razed. The appellate court held that Banks and the motel
barred by the applicable statute of limitations, we affirm the     were bound by their stipulations, and the motel was then
judgment of the district court without reaching the alternative    demolished.
bases of the district court’s ruling.
                                                                     After finding the Robinwood Trailer Park and one of the
                    Factual Background                             P.T. Properties buildings in violation of various code
                                                                   provisions, the City filed an action against Turner and P.T.
   The plaintiffs in this action are the Bambi Motel, Inc. and     Properties on November 22, 1996, in the Environmental
its owner, Stewart Banks, and P.T. Properties, Inc. and            Division of the Franklin County Municipal Court, seeking to
Richard Turner, the owner and operator, respectively, of           close the trailer park and to demolish the building. Turner
Robinwood Trailer Park and two other commercial buildings.         made the repairs necessary to bring both properties into
All of these properties are located in the City of Whitehall,      compliance, and, on August 29, 1997, the action was
Ohio. The allegations in this § 1983 action have their genesis     dismissed.
in the city’s campaign of strict enforcement of its fire and
building codes in order to force certain businesses that were        The plaintiffs filed this action in the district court on
in violation of those codes to shut down, either until the         October 18, 1999, against the City of Whitehall and various
violations could be remedied, or permanently. The Bambi            of its officials, in their official and individual capacities,
Motel, Robinwood Trailer Park and the P.T. Properties              complaining that their actions had been undertaken in an
commercial buildings were targets of this campaign.                effort to drive the plaintiffs out of business; that these actions
                                                                   constituted inverse condemnation and takings without just
  The City filed an action in the Environmental Division of        compensation; that the defendants had selectively enforced
the Municipal Court in Franklin County, Ohio, on November          the building and fire codes against these plaintiffs and thereby
22, 1995, against Banks and the Bambi Motel, alleging              worked a taking without just compensation and a violation of
numerous building code, fire code and licensing law                the Equal Protection Clause of the Fourteenth Amendment;
violations, as well as seeking an injunction to abate a public     and that the plaintiffs were entitled to injunctive relief. The
nuisance allegedly resulting from drug trafficking,                district court granted summary judgment to the defendants,
prostitution and other criminal activity occurring at the motel.   and this timely appeal followed.
On April 10, 1996, Banks and the Bambi Motel stipulated to
a permanent injunction, based on stipulated findings of                                       Analysis
violations of the law, requiring that by July 9, 1996, Banks
would have either (1) razed the structures comprising the            We review de novo the district court’s holding that the
motel or contracted to have it razed, or (2) sold the property     plaintiffs’ claims were filed outside of the applicable statute
No. 01-4155      Banks, et al. v. City of Whitehall, et al.    5    6     Banks, et al. v. City of Whitehall, et al.    No. 01-4155

of limitations. Tolbert v. Ohio Dep’t of Transp., 172 F.3d             Not only did we determine en banc in Browning that a two-
934, 938 (6th Cir. 1999).                                           year statute of limitations applies to section 1983 actions, but
                                                                    in two later cases, LRL Properties v. Portage Metro Housing
   In this appeal, the plaintiffs do not contend that they filed    Authority, 55 F.3d 1097, 1105 (6th Cir. 1995), and Kuhnle
this section 1983 action within two years of the defendants’        Brothers, Inc. v. County of Geauga, 103 F.3d 516, 519-20
allegedly unconstitutional conduct. The plaintiffs’ sole            (6th Cir. 1997), we squarely rejected attempts to get around
argument pertaining to the statute of limitations is that           Browning. As we noted in LRL Properties, “[i]t is the
“Browning v. Pendleton, . . . which establishes a two-year (2)      well-settled law of this Circuit that ‘[a] panel of this Court
statute of limitations for 42 USC § 1983 claims is contrary to      cannot overrule the decision of another panel. The prior
Ohio law and should be overruled with respect to § 1983             decision remains controlling authority unless an inconsistent
claims arising in Ohio.” The plaintiffs have no legal basis         decision of the United States Supreme Court requires
whatsoever for advancing this argument in this court.               modification of the decision or this Court sitting en banc
                                                                    overrules the prior decision.’” 55 F.3d at 1105 n.2 (quoting
   In 1985, the Supreme Court held that section 1983 claims         Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689
were best characterized as tort actions for the recovery of         (6th Cir. 1985)). There is no such inconsistent decision of
damages for personal injuries and federal courts must borrow        either the Supreme Court or this court.
the statute of limitations governing personal injury actions in
the state in which the section 1983 action was brought.               The plaintiffs’ brief includes in its statement of
Wilson v. Garcia, 471 U.S. 261, 275-76 (1985). Four years           facts—although not as a distinct legal argument—the claim
later, in Owens v. Okure, 488 U.S. 235 (1989), the Supreme          that a recent deposition of one of the defendants in this case,
Court refined its Wilson holding, and declared that in a state      taken in an unrelated lawsuit, brought to light evidence that
with more than one statute of limitations for personal injury       the City’s actions were designed to take the plaintiffs’
actions, the state’s residual or general statute of limitations     property “without Due Process or Just Compensation to
governing personal injury actions is to be applied to all           facilitate the redevelopment of East Main Street for the
section 1983 actions brought in that state. Id. at 249-50. The      political and personal advancement of the individual
ink was hardly dry on Okure when this circuit, sitting en           Defendants,” and upon discovery of this evidence, the
banc, decided Browning v. Pendleton, 869 F.2d 989 (6th Cir.         plaintiffs were left with no vehicle to redress these
1989). Noting that in Okure, the Supreme Court had                  constitutional violations except this section 1983 action.
“unanimously held that when a state, like Ohio, has multiple        Such a discovery, if true, might enable the plaintiffs to avoid
statutes of limitation for personal injury actions, the             the application of the statute of limitations to bar their claims.
appropriate state statute of limitations to borrow for claims       But we find no evidence in this record that the plaintiffs’
brought under 42 U.S.C. § 1983 is the residual or general           claim is true. We have thoroughly reviewed the record,
personal injury statute of limitations,” id. at 991, we held that   including the portions of the deposition that supposedly
“the appropriate statute of limitations for 42 U.S.C. § 1983        produced “new” evidence, as well as newspaper accounts
civil rights actions arising in Ohio is contained in Ohio Rev.      from the mid-1990s that contained as much inculpatory
Code Ann. § 2305.10, which requires that actions for bodily         evidence as the deposition, and we conclude that the
injury be filed within two years after their accrual.” Id. at       deposition did not alert the plaintiffs to any evidence that they
992.                                                                could not have easily discovered prior to the expiration of the
                                                                    statute of limitations.
No. 01-4155     Banks, et al. v. City of Whitehall, et al.    7    8      Banks, et al. v. City of Whitehall, et al.   No. 01-4155

   We think it is prudent, however, in light of this allegation,   regulations with impunity, and the conduct of Whitehall
to note briefly that even if the record contained some             officials in enforcing those codes and regulations was neither
indication that the plaintiffs could not have discovered this      “arbitrary” nor “conscience-shocking” in the constitutional
evidence sooner, there is no basis whatever for their claim        sense. See Bowers v. City of Flint, 325 F.3d 758 (6th Cir.
that their substantive due process rights were violated when       2003) (majority and concurring opinions). In fact, the
the defendants rigorously enforced Whitehall’s building and        government regularly uses the civil law to address problems
fire codes in a specific area of town in order to shut down        that it could, perhaps more directly, address with the criminal
businesses around which drug dealers and prostitutes often         law. See, e.g., 21 U.S.C. § 881 (authorizing civil forfeiture
congregated. The plaintiffs argue that there is a so-called        proceedings against property acquired in or associated with
“middle ground” protected by substantive due process               the illegal drug trade). Finally, the plaintiffs cannot prevail
wherein the government cannot act arbitrarily or capriciously      on a claim of selective enforcement because they have not
with respect to property even if its actions do not rise to the    shown that they “belong[] to an identifiable group, such as . . .
level of a taking. They pursue this argument notwithstanding       a particular race or religion, or a group exercising
their admission that Stewart Banks and the Bambi Motel             constitutional rights,” and who were targeted for law
voluntarily entered into an order before the state                 enforcement action as a result of that group status.
environmental court admitting to the existence of various          Gardenhire v. Schubert, 205 F.3d 303, 318-19 (6th Cir.
code violations and agreeing to take specified remedial            2000).
measures, and Richard Turner and P.T. Properties, Inc. made
necessary repairs to their facilities, which enabled Whitehall       None of the defendants’ actions which the plaintiffs
to lift its condemnation order and dismiss any pending legal       complain of occurred within two years of the filing of this
actions against them.                                              lawsuit, nor were the plaintiffs prevented from timely
                                                                   discovering any actions of the defendants that could
   As an initial matter, we note that the Fifth Amendment, and     conceivably be redressed by a lawsuit brought under section
not substantive due process, is the basis upon which a             1983. Because this action is wholly barred by the applicable
plaintiff may challenge the government’s actions with respect      statute of limitations, we need not reach any of the alternative
to his property: “Graham v. Connor, 490 U.S. 386, 395              bases upon which the district court granted summary
(1989), precludes the use of substantive due process analysis      judgment to the defendants.
when a more specific constitutional provision governs.” City
of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 123 S. Ct.             The judgment of the district court is AFFIRMED.
1389, 1397 (2003) (Scalia, J., concurring) (internal quotations
omitted). Moreover, to the extent that the plaintiffs attempt to
avoid the dictates of Graham by claiming that their challenge
is not to the “quasi-taking” of their property but is instead to
the conduct of Whitehall officials—namely, the rigorous and
allegedly selective enforcement of city regulations with the
purpose of shutting down businesses suspected of
contributing to a culture of crime—that challenge is wholly
without foundation. There exists no “fundamental” right in
our legal system to violate a municipality’s codes and
