                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0442n.06

                                         No. 09-3090                                 FILED
                                                                                  Jul 21, 2010
                          UNITED STATES COURT OF APPEALS                    LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


ENGINEERING & MANUFACTURING                            )
SERVICES, LLC,                                         )       ON APPEAL FROM THE
                                                       )       UNITED STATES DISTRICT
       Plaintiff -Appellant,                           )       COURT FOR THE NORTHERN
                                                       )       DISTRICT OF OHIO
                v.                                     )
                                                       )       OPINION
CHESTER J. ASHTON; JOHN MCKENNA;                       )
DOUGLAS G. VESELSKY,                                   )
                                                       )
       Defendants-Appellees.



BEFORE: BATCHELDER, Chief Judge, and WHITE, Circuit Judge, and GREER*, District
Judge.

       HELENE N. WHITE, Circuit Judge. Plaintiff Engineering & Manufacturing Services,

L.L.C. (EMS), appeals the denial of its motion for partial summary judgment and the grant of

summary judgment to defendants in this 42 U.S.C. § 1983 action arising from a wall-to-wall

administrative search of EMS’s plant. The issue is whether defendants’ search warrant was

supported by administrative probable cause. We conclude that it was not, and therefore REVERSE

the grant of summary judgment to defendants, and REMAND for further proceedings consistent with

this opinion.




       *
       The Honorable J. Ronnie Greer, United States District Judge for the Eastern District of
Tennessee, sitting by designation.
No. 09-3090
Eng’g & Mfg. Servs. v. Ashton, et al.

                            I. FACTS and PROCEDURAL HISTORY

       EMS manufactures sheet metal parts for the automotive after-market in a 42,000 square foot

building located at 1120 East 152nd Street in Cleveland. Defendants are high-ranking Cleveland Fire

Department officers: Chester J. Ashton is a Captain and a Battalion Chief, John McKenna a Captain

and Deputy Fire Marshall, and Douglas G. Veselsky a Lieutenant and Chief Fire Inspector.

Defendants are sued in their individual and official capacities.

       EMS’s complaint alleged that the affidavit in support of the search warrant pursuant to which

defendants conducted the February 22, 2007 search of EMS’s plant failed to present facts sufficient

to constitute probable cause, and contained material, intentional and reckless falsehoods. EMS

alleged that defendants’ actions were deliberate and intentional violations of EMS’s clearly

established rights under the Fourth and Fourteenth Amendments.

                                                 A.

       Ashton’s notarized affidavit in support of the search warrant stated:

       1. [] I am chief of the battalion that is closest to the property at 1124 East 152nd[1]
       Street and my firefighters would be responsible for responding to a fire at this address
       if one were to occur.

       2. Cleveland Codified Ordinance § 381.04 gives the right of entry to the Fire Chief
       or his authorized representatives during reasonable hours . . . “to examine and inspect
       for hazardous or dangerous conditions, equipment, materials, liquids, gases or
       accumulations; obstructions to or on fire escapes and other means of egress; and for
       the maintenance of fire protection equipment.”




       1
           EMS’s actual address is 1120 East 152nd Street.

                                                 -2-
No. 09-3090
Eng’g & Mfg. Servs. v. Ashton, et al.

        3. As part of my duties, I (with my local firefighters) conduct annual inspections of
        industrial sites to “get to know the property” the [sic] make certain there are no
        hazardous or dangerous conditions inside that would pose a threat to firefighters in
        the event of a fire.

        4. On November 29, 2006 and December 22, 2006, I along with local firefighters,
        went to the premises located at 1124 East 152nd Street to conduct our annual interior
        inspection of the premises to determine if there are any hazardous or dangerous
        conditions in case there is a need to fight a fire at this large industrial building in the
        future. We were denied access to the premises on both occasions by the owner,
        Alexander Erdey.
        ....
        6. Based on my experience as a Battalion Chief and the foregoing facts, I believe it
        is likely that the conditions of the interior of the premises known as 1124 East 152nd
        Street, are in violation of the City’s Fire Code, and are or may become hazardous to
        the public health, safety or welfare.

                B. EMS’s Motion for Partial Summary Judgment on Liability

        Before discovery began, EMS filed a motion for summary judgment on the issue of liability,

asserting that the warrant application did not allege specific evidence of an existing fire-code

violation; Chief Ashton’s conclusory belief that unspecified code violations existed in EMS’s

building, without supporting facts, did not demonstrate administrative probable cause; and the

warrant application did not permit the magistrate to find that the inspection was based on reasonable

legislative or administrative standards, i.e., neutral criteria.

        Defendants opposed EMS’s motion, submitting with their opposition brief several documents

not submitted to the issuing magistrate with the warrant application, including two affidavits and

Cleveland Ordinance § 381.04. EMS moved to strike the exhibits defendants had not supplied to

the magistrate. The district court overruled EMS’s motion to strike, but did not consider the




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Eng’g & Mfg. Servs. v. Ashton, et al.
challenged exhibits, noting that it determined probable cause with reference to Ashton’s affidavit

alone.

                                                    C.

         The district court concluded that Ashton’s affidavit provided probable cause for the

administrative warrant and denied EMS’s motion for partial summary judgment:

                  [] The affidavit Judge Pianka reviewed provides the identity and
         qualifications of the affiant. Chester Ashton is the chief of the battalion closest to the
         industrial premises; and the firefighters he supervises would “be responsible for
         responding to a fire at this address if one were to occur.” Reference is made to
         Cleveland Codified Ordinance § 381.04,[2] authorizing the Fire Chief or his
         representatives to enter during reasonable hours “to examine and inspect for
         hazardous or dangerous conditions. . .” In addition, paragraphs #3 and #4 mention
         the Fire Department’s annual inspections of industrial sites, to “get to know the
         property” and “make certain there are no hazardous or dangerous conditions inside
         that would pose a threat to firefighters in the event of a fire.” Considering the totality
         of the circumstances, therefore, probable cause for the administrative warrant existed:
         1) Battalion Chief Ashton was competent to make the sworn declarations in the
         search warrant application; 2) a valid city ordinance authorized an administrative
         search, such as the one conducted here; and 3) annual inspections of industrial
         premises for fire safety concerns are reasonable and neutral. [R. 15, 4-6.]




         2
             Ordinance 381.04 provides in pertinent part:

         (a) The Fire Chief or his authorized representatives upon presentation of proper
         credentials, may enter any building or premises at all reasonable hours or at such
         times as may be necessary in an existing emergency to examine and inspect for
         hazardous or dangerous conditions . . . and for the maintenance of fire protection
         equipment. No person shall prevent, obstruct or delay any inspection or the
         performance of any lawful duty of a fireman acting within his official capacity. [R.
         7-12.]


                                                   -4-
No. 09-3090
Eng’g & Mfg. Servs. v. Ashton, et al.
                          D. Defendants’ Motion for Summary Judgment

       Defendants filed a motion for summary judgment on April 28, 2008, asserting that because

EMS’s complaint raised no issue other than the validity of the warrant, and the district court had

ruled the warrant was supported by probable cause, they were entitled to summary judgment.

       EMS filed a motion for leave to file its opposition brief instanter on May 29, 2008, one day

after the May 28 deadline set by the district court’s briefing schedule.3 Defendants did not object

and the district court granted EMS’s motion by a non-document order entered on May 30, 2008.

       EMS’s brief in opposition to defendants’ motion argued that the warrant was not based on

administrative probable cause (EMS had argued this in its own summary judgment motion); that the

evidence established that the selection of buildings to be inspected and decisions on how often to

inspect were left to the discretion of Fire Department officials; and that the search-warrant

application failed to include a copy of a “neutral” inspection plan and failed to make any showing

regarding how the EMS search fit the plan’s neutral selection criteria.

       Defendants filed a Reply brief to EMS’s opposition brief on June 9, 2008. Citing Cleveland

Ordinance § 381.04, see n.2, and Order 7-5,4 defendants asserted that Cleveland’s inspection plan


       3
        EMS’s motion explained that the opposition brief was completed the day prior, but that in
converting the document to pdf format for electronic filing with the district court, the document was
lost, and counsel’s outside computer consultant was unable to address the problem until the
following morning. [R. 21.]
       4
           Fire Division General Order 7-5, dated May 31, 2000, states in pertinent part:

       Due to [] an increasing number of building inspections required by Federal, State and
       local legislation, the Cleveland Fire Prevention Bureau cannot inspect all existing

                                                 -5-
No. 09-3090
Eng’g & Mfg. Servs. v. Ashton, et al.
was constitutional and that EMS was selected for an annual inspection pursuant to a neutral

administrative plan. Defendants argued that Captain Otto sent monthly inspection sheets to the

Battalions for buildings with water-based systems, and that EMS appeared on the Battalion Six list

in 2006, 2007 and again in 2008. They further argued that Otto maintains lists of buildings to be

inspected and that

       [t]he goal is that by the end of the year each building utilizing a water-based fire
       suppression system will have been inspected. Each year – every building on the
       water-based list [such as Plaintiff’s] is selected for inspection. Even if this Court
       should determine that the City’s current plan give [sic] fire inspectors too much
       discretion[,] the solution . . . is to require a warrant. [R. 22, p. 13-14.]

Defendants’ reply brief and several exhibits attached thereto included data not provided to plaintiff

in discovery. Defendants also submitted for the first time an affidavit of Fire Marshall Scott, which

stated that in 2007, the Fire Division conducted inspections at 8,449 of the 15,515 addresses on file,

and that the Division “does not claim to inspect every address, every year–but this is the goal we

strive to achieve.”



       buildings. All fire companies, therefore, shall assume the responsibility of building
       inspections and refer unabated violations to the Fire Prevention Bureau for follow-up.

               1. Each shift of each company shall conduct inspections from a list that will
       be distributed monthly by the Fire Prevention Bureau . . . .

               2. Shift Battalion Chiefs shall coordinate and attend one Major Inspection
       monthly . . . . Battalion Chiefs will also be forwarded monthly inspection lists, from
       the Fire Prevention Bureau, which will include facilities with water-based protection
       systems . . .
       Note: It is the goal of the Division of Fire that all facilities with water-based fire
       protection systems be inspected annually. [R. 7-3.]


                                                -6-
No. 09-3090
Eng’g & Mfg. Servs. v. Ashton, et al.
        On June 11, 2008, EMS filed a motion seeking leave, until June 23, 2008, to respond to new

data, a new affidavit and new arguments and theories defendants presented for the first time in their

Summary Judgment Reply Brief. Defendants opposed the motion.

        On June 16, 2008, court staff telephoned and advised EMS’s counsel to re-file EMS’s brief

in opposition to defendants’ summary judgment motion (i.e., advised that the brief had to be filed

after the district court granted EMS leave to file the brief instanter). EMS’s counsel re-filed the

brief that day.

        EMS filed its sur-reply brief on June 23, 2008 – at which time the district court had not ruled

on its June 11 motion for leave to file a sur-reply brief. Defendants did not object and, on July 8,

2008, defendants moved for leave to respond to EMS’s sur-reply, attaching their response.

        E. District Court Strikes EMS’s Brief in Opposition to Summary Judgment
                and Denies EMS’s Motion for Leave to file Sur-Reply Brief

        On July 15, 2008, the district court entered an order striking EMS’s brief in opposition to

defendants’ summary judgment motion as untimely, denying EMS’s motion for leave to respond to

defendants’ reply brief, and denying as moot defendants’ motion for leave to reply to plaintiff’s sur-

reply brief.

        On July 16, 2008, EMS moved for reconsideration and requested a hearing, stating in

pertinent part:

                Counsel’s understanding of an order granting a motion for leave to file an
        “accompanying brief,” is that the brief accompanying the motion is deemed to have
        been filed “instanter” (i.e., “immediately, forthwith, without delay”) at the moment
        the order is entered. Counsel was unaware that a brief already submitted



                                                 -7-
No. 09-3090
Eng’g & Mfg. Servs. v. Ashton, et al.
        electronically, and already part of the court’s electronic files, had to be submitted
        again, after the motion for leave was granted [on May 30, 2008].

                On June 16, 2008, undersigned counsel received a telephone call from the
        Magistrate’s chambers instructing counsel to re-file the Brief in Opposition. This
        was the first counsel was made aware of the need to file the document a second time.
        Counsel promptly complied with that directive, and re-submitted the document
        within the hour.

                Counsel sincerely apologizes for any misunderstanding regarding “instanter”
        procedure in this Court. . . However, this technical faux pas did not cause any
        prejudice. It did not prejudice Defendants since the Opposition Brief was timely
        served on their counsel on May 29, 2008 (via the Court’s electronic filing system),
        and defendants had no difficulty filing their Reply Brief by its original deadline. Nor
        did it delay this case in any material way.
                                                 ***
In a footnote, counsel stated:

        “Instanter procedure” in the courts of the State of Ohio consists of submitting the
        signed, original copy of the out-of-rule brief, along with a motion for leave to file
        instanter. If the motion for leave is granted, the signed original is deemed filed as of
        that moment.

Defendants opposed EMS’s motion for reconsideration.

        The district court denied EMS’s motion for reconsideration, noting that its order granting

plaintiff leave to file the brief instanter “did not deem the brief filed.”

F. District Court Grants Defendants Summary Judgment, ruling on Motion as Unopposed

        The district court proceeded to rule on defendants’ summary judgment motion as unopposed,

and granted defendants summary judgment. Its opinion states:

               Plaintiff moved for an order granting EMS summary judgment on liability.
        However, the Court denied Plaintiff’s motion, and held EMS’ constitutional rights
        under the Fourth and Fourteenth Amendments were not violated because probable
        cause for the warrant to inspect the EMS premises existed. Since Plaintiff’s
        Complaint pleads no claim other than the validity of the administrative search


                                                  -8-
No. 09-3090
Eng’g & Mfg. Servs. v. Ashton, et al.
       warrant, and since the Court held there was no constitutional violation in the issuance
       and execution of the search warrant, Defendants . . . are entitled to summary
       judgment in their favor. [R. 34.]

EMS timely appealed.

                                                  II.

       EMS argues on appeal that 1) the district court abused its discretion by striking its brief in

opposition to defendants’ summary judgment motion; 2) the court erred in granting defendants

summary judgment where the search warrant was fatally deficient, the Fire Department’s

administrative inspection plan involved discretionary selection, and the search violated clearly

established law; 3) the brief and evidentiary submissions the district court struck established genuine

factual issues that precluded summary judgment; 4) the court abused its discretion in denying EMS

leave to file a sur-reply brief where defendants’ reply brief presented new arguments and new data

not provided to EMS in discovery; and 5) the court erred in denying EMS partial summary judgment.

                                                  1

       We first address EMS’s argument that the district court abused its discretion by sua sponte

striking EMS’s brief in opposition to defendants’ summary judgment motion and dismissing its

complaint on the ground that defendants’ motion for summary judgment was “unopposed.”

       EMS contends that this court reviews a dismissal of a complaint for a non-moving party’s

failure to respond to a motion within the applicable time limit as a dismissal for failure to prosecute

under Fed. R. Civ. P. 41(b), a harsh sanction that should be ordered only in extreme situations

showing a clear record of delay or contumacious conduct by the non-movant. EMS maintains that



                                                 -9-
No. 09-3090
Eng’g & Mfg. Servs. v. Ashton, et al.
the district court failed to consider the four factors necessary to support a Rule 41(b) involuntary

dismissal as set forth in Stough v. Maryville Cmty. Sch., 138 F.3d 612, 614-15 (6th Cir. 1998).

       Defendants maintain that Stough does not apply, asserting that the district court did not

dismiss EMS’s complaint under Fed. R. Civ. P. 41(b), but rather, first struck EMS’s opposition brief

as untimely, and granted defendants summary judgment “based in large part on its prior holding that

the administrative warrant in question was based upon probable cause.” Defendants assert that,

having granted their motion, the district court dismissed EMS’s case under Fed. R. Civ. P. 58. This

court’s review of the order striking EMS’s reply brief, they argue, is of the district court’s

determination regarding excusable neglect.

                                                   a

       We agree with defendants that excusable neglect is the appropriate standard given the

procedural posture of this case. Matters of docket control and discovery are within the sound

discretion of the district court. Jones v. Northcoast Behavioral Healthcare Sys., 84 F. App’x 597,

599 (6th Cir. 2003); In re Air Crash Disaster, 86 F.3d 498, 516 (6th Cir. 1996). When a party fails

to meet a deadline, the district court should determine if such failure was the result of excusable

neglect, Fed. R. Civ. P. 6(b), and review of that determination is for abuse of discretion. Nafziger

v. McDermott Int’l, Inc., 467 F.3d 514, 522 (6th Cir. 2006).

       Such abuse exists if the district court “relie[d] on erroneous findings of fact, applie[d]
       the wrong legal standard, misapplie[d] the correct legal standard when reaching a
       conclusion, or ma[de] a clear error of judgment.” Reeb v. Ohio Dep’t of Rehab. and
       Corr., 435 F.3d 639, 644 (6th Cir. 2006). Here, the governing legal standard for
       excusable-neglect determinations is a balancing of five principal factors: (1) the
       danger of prejudice to the nonmoving party, (2) the length of the delay and its


                                                 - 10 -
No. 09-3090
Eng’g & Mfg. Servs. v. Ashton, et al.
       potential impact on judicial proceedings, (3) the reason for the delay, (4) whether the
       delay was within the reasonable control of the moving party, and (5) whether the late-
       filing party acted in good faith. See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
       P’ship, 507 U.S. 380, 395 [] (1993).

Nafziger, 467 F.3d at 522.

       If the district court engaged in the excusable-neglect balancing process discussed in Nafziger,

it is not apparent from the record. The district court’s orders striking EMS’s opposition brief and

denying reconsideration suggest that it determined that EMS’s counsel’s ignorance of instanter

procedure in federal court, and EMS’s resultant failure to re-file the opposition brief until two weeks

after the court had granted EMS leave to file the brief instanter, warranted striking its brief.

       Although EMS’s motion for reconsideration argued that defendants were not prejudiced by

the two-week delay, that the delay had no impact on the proceedings, and that EMS acted in good

faith, the district court’s order denying reconsideration gives no indication that it weighed these

factors, which coincide with three of the excusable neglect/Nafziger factors. We conclude that these

three factors weigh in EMS’s favor.

       First, the late filings did not prejudice defendants. Defendants at no point claimed that either

the May 29 or June 16th filing of EMS’s reply brief prejudiced them and, further, defendants had

received EMS’s reply brief on May 29, 2008, and already filed their response before the district court

sua sponte struck EMS’s reply brief on July 15, 2008. Second, that defendants had already filed

their response before EMS re-filed its reply brief illustrates that the length of the delay (two weeks)

had no apparent impact on the proceedings. Third, EMS acted in good faith throughout the

proceedings. There is no local court rule or internal operating procedure addressing instanter


                                                - 11 -
No. 09-3090
Eng’g & Mfg. Servs. v. Ashton, et al.
procedure in the Northern District of Ohio. EMS’s counsel explained that state-court practice was

that when courts grant a motion for leave to file a document instanter, the document is deemed filed.

Further, in the instant case, the district court granted EMS’s motion for leave to file its opposition

brief instanter the day after EMS filed it, i.e., the day after the docket sheet entry stating that EMS’s

opposition brief was “filed prematurely without leave of court.” A reader of the docket sheet could

reasonably conclude that when the district court granted the motion to file the brief instanter the day

after this docket notation, it accepted EMS’s appended opposition brief. Further, when court staff

called EMS’s counsel several weeks later to advise that he had to file the opposition Brief, he did

so immediately.

        Defendants do not argue that EMS’s late filing of its opposition brief prejudiced them, and

offer no argument regarding the Nafziger factors. Given that the late filing had no apparent impact

on the proceedings, that defendants were not prejudiced, and that there is no indication EMS’s

counsel acted other than in good faith, we conclude that EMS established excusable neglect and that

the district court thus abused its discretion in striking EMS’s opposition brief. See Nafziger, 467

F.3d at 524 (an abuse of discretion exists if the district court applied the wrong legal standard).

                                                   b

        Turning to the issue whether the district court abused its discretion in denying EMS’s motion

for leave to file a sur-reply brief, we agree with EMS that defendants’ presentation of new arguments

and new evidence in their reply brief violated EMS’s right under Fed. R. Civ. P. 56(c) to notice and

a reasonable opportunity to respond to defendants’ summary judgment motion and supporting



                                                 - 12 -
No. 09-3090
Eng’g & Mfg. Servs. v. Ashton, et al.
evidence and necessitated that EMS be permitted to respond. In Seay v. Tennessee Valley Auth., 339

F.3d 454, 481-82 (6th Cir. 2003), this court concluded that the district court abused its discretion in

failing to allow the non-moving party an opportunity to file a sur-reply brief under circumstances

similar to the instant case:

                 When new submissions and/or arguments are included in a reply brief, and
        a nonmovant’s ability to respond to the new evidence has been vitiated, a problem
        arises with respect to Federal Rule of Civil Procedure 56(c). Rule 56(c) requires that
        an adverse party receive ten days notice before a district court may enter summary
        judgment. Fed. R. Civ. P. 56(c); Employers Ins. of Wausau v. Petroleum Specialties,
        Inc., 69 F.3d 98, 105 (6th Cir. 1995). The purpose of Rule 56(c) is to afford the
        nonmoving party notice and a reasonable opportunity to respond to the moving
        party’s summary judgment motion and supporting evidence. See Celotex Corp. v.
        Catrett, 477 U.S. 317, 326 [] (1986) (holding that summary judgment is to be entered
        only if the nonmovant is on notice that it must come forward with all of its evidence).
        It is only logical that the purposes of notice and opportunity to respond extend Rule
        56(c) to the situation where the moving party submits in a reply brief new reasons
        and evidence in support of its motion for summary judgment, and require a district
        court to allow the nonmoving party an opportunity to respond. Beaird [v. Seagate
        Tech., Inc., 145 F.3d 1159,] 1164-65 [10th Cir. 1998] (citing Cia. Petrolera Caribe,
        Inc. v. Arco Caribbean, Inc., 754 F.2d 404, 410 (1st Cir. 1985)). This is particularly
        true when the district court relies on the new evidentiary submissions.

Accordingly, we conclude that the district court abused its discretion by denying EMS’s motion for

leave to file a sur-reply brief.

                                                  2

        EMS contends that the district court erred in granting defendants summary judgment where

the search warrant affidavit was fatally deficient, defendants’ own moving papers admitted that

discretionary selection of establishments to be searched was an inherent part of the Fire




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No. 09-3090
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Department’s inspection plan, and the search of EMS’s premises violated clearly established law.

                                                  a

       This court reviews the district court’s grant of summary judgment de novo. Tysinger v.

Police Dept. of City of Zanesville, 463 F.3d 569, 572 (6th Cir. 2006). The district court’s opinion

granting defendants summary judgment does not discuss the probable cause issue–it merely notes

its initial ruling finding probable cause. That ruling rested on the court’s conclusions that “a valid

city ordinance [Cleveland Ordinance § 381.04] authorized [the] administrative search” and that

“annual inspections of industrial premises for fire safety concerns are reasonable and neutral.”

       Since Camara v. Mun. Court of City and County of San Francisco, 387 U.S. 523 (1967), and

See v. City of Seattle, 387 U.S. 541 (1967), statutes such as Cleveland’s Municipal Code § 381.04

– on which the district court partly relied in concluding probable cause was established – have been

held unconstitutional unless construed to require a search warrant supported by administrative

probable cause. Camara held that administrative inspections are significant intrusions on Fourth

Amendment rights for which warrants generally are required, and that probable cause exists in this

context “if reasonable legislative or administrative standards for conducting an area inspection are

satisfied with respect to a particular dwelling.” 387 U.S. at 538. The See Court noted that “the

decision to enter and inspect will not be the product of the unreviewed discretion of the enforcement

officer in the field.” 387 U.S. at 545. See also Allinder v. Ohio, 808 F.2d 1180 (6th Cir. 1987)

(finding unconstitutional an Ohio regulatory statute that permitted warrantless inspection of apiaries

located on private property).



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        Because defendants in the instant case secured a warrant, i.e., did not inspect EMS’s premises

without a warrant based on their purported authority to do so under Cleveland Ordinance § 381.04,

the issue is whether the “annual interior inspection plan” is derived from neutral sources. We

conclude that EMS presented ample evidence to survive defendants’ summary judgment motion on

this issue.

                                     b - Annual Inspection Plan

        Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978), and Trinity Indus., Inc. v. Occupational

Safety and Health Review Comm’n, 16 F.3d 1455 (6th Cir. 1994), established that administrative

probable cause requires a neutral administrative or legislative plan. As this court noted in Trinity

Indus., 16 F.3d at 1460:

        In Barlow’s, the Supreme Court held that warrants are required for administrative
        inspections under the [Occupational Safety and Health] Act. Id. at 325 []. The Court
        also stated that probable cause justifying the issuance of a warrant for administrative
        purposes may be based either on “specific evidence of an existing violation” or “on
        a showing that ‘reasonable legislative or administrative standards for conducting an
        . . . inspection are satisfied with respect to a particular [establishment].’” Id. at 320
        []. Expounding on the second basis, the Court noted that a “warrant showing that a
        specific business has been chosen for an OSHA search on the basis of a general
        administrative plan for the enforcement of the Act derived from neutral sources . . .
        would protect an employer’s Fourth Amendment rights.” Id. at 321 [] (emphasis
        added). Because administrative and legislative guidelines ensure that employers
        selected for inspection pursuant to neutral administrative plans have not been chosen
        simply for the purpose of harassment, courts have held that administrative plan
        searches may properly extend to the entire workplace. Donovan v. Sarasota
        Concrete Co., 693 F.2d 1061, 1068 (11th Cir. 1982).

A permissible administrative plan relies on “either random selection or selection by relevant statistics

that have no individual human component for the reason that searches flowing from these types of



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plans could not be the product of an agency’s arbitrary decision.” See Trinity Indus., 16 F.3d at 1463

(Batchelder, J., concurring) (discussing Barlow’s, 436 U.S. at 323).

        EMS argued in opposition to defendants’ summary judgment motion (in the brief the district

court struck) that although a plan to search commercial buildings annually may arguably satisfy

Barlow’s neutrality requirement by rendering the “whom to search and how often to search” non-

discretionary, the evidence established that the Fire Department inspects a small fraction of buildings

annually and, in reality, Captain Otto and several others select the buildings to be inspected without

neutral selection criteria.

        We agree with EMS. Documentary evidence submitted below supported that annual

inspections are a goal of the Fire Department, that the Department actually inspects only a fraction

of the commercial establishments in Cleveland annually, and that Otto and others have input into the

choice of buildings to be inspected, i.e., that the Fire Department’s administrative plan for annual

inspections has human input and components and is thus not neutral.

        In sum, EMS’s opposition brief and evidentiary submissions (which the district court struck)

established genuine factual issues that precluded summary judgment in defendants’ favor. We

therefore reverse the district court’s grant of summary judgment to defendants.

                                        III. Qualified Immunity

        Defendants argue that even if EMS is successful regarding all its assignments of error, they

are still entitled to qualified immunity.5 On the record before us, we disagree.


        5
            The district court did not reach the issue of qualified immunity.

                                                  - 16 -
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       “In § 1983 actions, an officer ordinarily receives qualified immunity if he . . . relies on a

judicially secured warrant.” Hale v. Kart, 396 F.3d 721, 725 (6th Cir. 2005). When no facts are in

dispute, whether an official is entitled to qualified immunity is a question of law. Dominguez v.

Corr. Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009). However,

       [i]f disputed factual issues underlying probable cause exist, those issues must be
       submitted to a jury for the jury to determine the appropriate facts. Similarly with
       qualified immunity, a court can submit to the jury the factual dispute with an
       appropriate instruction to find probable cause and qualified immunity if the factual
       inquiry is answered one way and to find probable cause and qualified immunity
       lacking if the inquiry is answered in another way. However, the jury does not decide
       whether the facts it has found are legally sufficient to amount to probable cause or
       entitlement to qualified immunity.

Hale, 396 F.3d at 728.

       Here, the facts pertinent to probable cause and qualified immunity are in dispute. Defendants

maintain that Ashton’s affidavit accurately stated that Ashton sought to inspect EMS as part of the

Fire Department’s “annual interior inspection plan,” while EMS maintains that there is no such

“plan,” but rather, that the Department inspects a fraction of the commercial establishments in

Cleveland annually, that Otto and various other fire officials have substantial input into what

buildings get inspected, and that there are no written criteria governing the selection of buildings

inspected. EMS also maintains that “to the extent [Ashton’s affidavit] intended to convey that the

Fire Department has a bona fide annual inspection plan that is selection neutral because all buildings

are regularly and systematically inspected on a yearly basis, Ashton’s reference to ‘annual

inspections’ was knowingly or recklessly false.” Because disputed factual issues underlying




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No. 09-3090
Eng’g & Mfg. Servs. v. Ashton, et al.
probable cause are present in this case, defendants are not entitled to summary judgment on qualified

immunity grounds.

                                                IV.

       The same factual disputes undermine EMS’s final issue on appeal – whether the district court

erred in denying its motion for partial summary judgment on liability.

                                                 V.

       We REVERSE the district court’s grant of summary judgment to defendants and REMAND

for further proceedings consistent with this opinion.




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