         [Cite as Jones v. Norwood, 2013-Ohio-350.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



FARRIS JONES,                                    :    APPEAL NO. C-120237
                                                      TRIAL NO. A-1009426
        Plaintiff-Appellee,                      :

  vs.                                            :         O P I N I O N.

CITY OF NORWOOD,                                 :

GERRY STOKER, in his individual                  :
capacity and in his official capacity as
Building Commissioner of the city of             :
Norwood,
                                                 :
  and
                                                 :
DAVID LEWIS, Sergeant, city of
Norwood Police Department, in his                :
individual capacity,
                                                 :
     Defendants-Appellants,
                                                 :
  and
                                                 :
  JOHN DOES 1-5,
                                                 :
     Defendants.




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed from is: Affirmed in Part, Reversed in Part, and Cause
                           Remanded

Date of Judgment Entry on Appeal: February 6, 2013
                   OHIO FIRST DISTRICT COURT OF APPEALS


Mark Lawson, Brian Howe, Legal Aid Society of Southwest Ohio, LLC, O’Hara,
Ruberg, Taylor, Sloan & Sergent, and Michael O’Hara, for Plaintiff-Appellee,

Schroeder, Maundress, Barbiere & Powers, Lawrence E. Barbiere, and Christopher
S. Brown, Norwood Assistant Law Director, for Defendants-Appellants.




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                      OHIO FIRST DISTRICT COURT OF APPEALS




C UNNINGHAM , Judge.

       {¶1}     Defendants, the city of Norwood, Ohio, Norwood’s Building

Commissioner Gerry Stoker, and Norwood Police Sergeant David Lewis, appeal from

the trial court’s order (1) denying in part their motion for summary judgment on

plaintiff Farris Jones’s federal claims for substantive- and procedural-due-process

violations brought under 42 U.S.C. 1983, and her state law claims for the intentional

infliction of emotional distress and negligence, and (2) granting partial summary

judgment to Jones on her claim that the city of Norwood violated her procedural-

due-process rights.

       {¶2}     Jones brought this action seeking money damages and injunctive and

declaratory relief after the city of Norwood and its agents ordered her to vacate

within hours, due to “overcrowding,” the one-bedroom apartment that she shared

with another individual. The defendants moved for summary judgment in part on

the basis of state and federal immunity. For the reasons that follow, we affirm in

part and reverse in part the trial court’s order.

                I. Background Facts and Procedural History

       {¶3}     Jones began renting the one-bedroom apartment located on the

third-floor of the building at 2000 Maple Avenue in Norwood, Ohio, in 2008, with

the assistance of a full subsidy from the Talbert House through its Shelter Care

Voucher Program.       The rental occupancy certificate for the unit allowed four

residents. Although Jones was the only individual named in the lease agreement,

beginning in 2009, she began to share her apartment with Matt Waller. They did not

share the bedroom; one of them slept on the floor in the “spacious” living room on a

makeshift-bed comprised of blankets and pillows.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



        {¶4}   Prior to the incident that is the basis of the lawsuit, defendant Lewis,

a sergeant with the Norwood Police Department, was familiar with both Jones and

Waller because of frequent police runs made to the apartment building for issues

such as public intoxication, drug use, unsanitary conditions, and unruliness.

According to Jones, Lewis had threatened to have her housing voucher removed.

        {¶5}   Defendant Stoker, as the Building Commissioner of Norwood, was the

head of the Norwood Building Department.                The building department was

responsible for enforcing the Norwood Building Code and the International Property

Maintenance Code (“IMPC”), which it had adopted as its own property maintenance

code.

        {¶6}   Both Stoker and Lewis were active in Norwood’s Keep Our Properties

Safe (“KOPS”) program, a collaborative effort amongst the Norwood Building, Police,

Fire and Health Departments. One of the goals of KOPS was to proactively address

issues of blight and nuisance properties in the city.

        {¶7}   Members of KOPS met three times a month to coordinate team

inspections of properties throughout the city of Norwood. As part of KOPS, the

police department compiled addresses of properties it deemed problem properties

and in need of inspection, and forwarded those to Stoker, as well as to an official at

the health department. Sergeant Lewis was the police liaison for KOPS, and reported

to Stoker. Stoker reported to the mayor of Norwood on KOPS.

        {¶8}   On October 6, 2010, at about 11 a.m., Commissioner Stoker and

Sergeant Lewis, together with representatives from Norwood’s Building, Health,

Fire, and Police Departments (“the KOPS group”), visited 2000 Maple Avenue

pursuant to the KOPS program. The property maintenance inspectors from the

building department on the visit included Charles Russ and James Shelby. Prior to



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                       OHIO FIRST DISTRICT COURT OF APPEALS



the inspection, the building department had received complaints about the property

from neighbors and the caretaker, and the police department had included the

property on its list of problem properties based on the number of police runs to the

building.

       {¶9}       After arriving at the apartment building, the building department

representatives issued “notices of intent to vacate for overcrowding” to occupants of

several lower-level units. These notices required the occupants to vacate by 5 p.m.

that same day and provided no opportunity to cure the “overcrowding.”

       {¶10}      The KOPS group then approached Jones’s unit on the third floor.

Jones’s unit, like all of the apartments in the building, has two doors: a “back door”

that enters into the kitchen area, and a “front door” that enters into the living room

area. They knocked on Jones’s back door. When no one responded, they knocked on

the front door.

       {¶11}      When Jones and Waller answered the door, Stoker and Lewis asked

them about their sleeping arrangement. According to Jones, Lewis specifically asked

if she and Waller were “sexually” active. This upset Jones.

       {¶12}      After determining that Jones and Waller were not sharing the same

bedroom and Waller would not voluntarily move out, Stoker decided to cite Jones

and Waller for “overcrowding.”

       {¶13}       Russ completed a “notice of intent to vacate” form and checked the

box indicating a violation of IPMC 2006 Section 404.5 He handwrote on the order

“NOTICE OF INTENT TO VACATE ON OR ABOUT 10-6-10@ 5:00P.M,” “FOR

OVERCROWDING” and “NO PERSON’S [sic] TO OCCUPY PROPERTY AFTER 5:00

P.M.” Although the form used by the building department includes a section for the

city to offer the recipient an opportunity to cure overcrowding by reducing



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                       OHIO FIRST DISTRICT COURT OF APPEALS



occupancy by a set amount, Russ had crossed out that provision. The form did not

include any information advising Jones of a right to appeal.

        {¶14}    The IPMC 2006 Section 404.5 defined “overcrowding” based on the

square footage of the bedroom. The guidelines indicated 70 square feet for the first

person in a bedroom and an additional 50 square feet for each additional person.1

        {¶15}    Sergeant Lewis, Stoker, and Russ testified in their depositions that

Waller had pushed aside blankets and pillows when he answered the door. Jones

claimed that the blankets were at least six feet from the door. Russ and Stoker

believed they were closer, but everyone agreed that the distance was a minimum

several feet, and that the makeshift bed was made of blankets and pillows, which

were easily removed.

        {¶16}    In his deposition, Russ testified that the placement of the blankets

and pillows near the door was a safety concern and an additional reason why he

issued the intent to vacate. But Russ did not indicate on the notice of intent to vacate

a violation of Norwood’s Property Maintenance Code 702.1, which applies when the

main exit or egress is blocked. And Jones testified in her deposition that no one had

mentioned the blankets by the door or told her that they were a safety concern.

        {¶17}    Although Jones had initially refused to sign the standard form

providing the building department officials consent for an inspection, later she had

orally invited them into the apartment. With the exception of Russ, who briefly

stepped about five feet into the unit before issuing orders, no one from the group




1 The 2009 version of the IPMC dealing with “overcrowding” provides that “[t]he number of
persons occupying a dwelling unit shall not create conditions that, in the opinion of the code
official, endanger the life, health, safety or welfare of the occupants.” At his deposition, Russ
stated that Norwood had not begun to use the 2009 version until 2011.


                                               6
                     OHIO FIRST DISTRICT COURT OF APPEALS



entered or inspected the apartment.      Thus, no one measured the apartment or

checked to see if the back door was obstructed.

       {¶18}   Jones and Waller refused to sign the “intent to vacate order” or to

accept it, so Russ left it on the front door of the apartment unit. Lewis and Stoker

told Jones and Waller that if they did not leave by 5 p.m. that same day, then they

could be arrested. Jones recalled in her deposition that Stoker had said, “If you’re

not out of here by 5:00, if we think that you’re in your apartment, we’re going to bust

down your door and take you both to jail for criminal trespassing.” Lewis, backing

him up, had said, “Yeah, we will be back.” Jones and Waller left and spent the next

two nights in a hotel.

       {¶19}   The next day, October 7, 2010, Russ, Shelby, and a police officer

returned to the property and posted the actual order to vacate on the front door of

the unit. This document retroactively ordered the occupants to vacate “by 5:00 p.m.

on Wednesday October 6, 2010.”

       {¶20}   The document informed Jones and Waller that the structure was

ordered vacated under the authority of Norwood Codified Ordinances 1331.13(a) for

(1) the “[f]ailure to maintain the property in accordance with the provisions of the

Norwood Codified Ordinances 1305.08 (Rental Certificates and Certificates of Use

and Occupancy)” and (2) “violations, and safety issues of the Norwood Property

Maintenance Code Section 1305.14 and I.P.M.C. 2006 Property Maintenance Code.”

The retroactive order also contained information about the appeal process. Several

Norwood officials, including Stoker and the mayor, were copied on the order to

vacate document.




                                          7
                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶21}     At the same time, Russ and Shelby also posted a large placard on the

front and back doors warning individuals not to “occupy” the unit and that they

would be penalized if they did so.

       {¶22}     Meanwhile, after vacating the apartment on October 6 based on the

threat of criminal charges, Jones contacted a lawyer at the Legal Aid Society of

Greater Cincinnati (“Legal Aid”), Jessica Powell.      Powell averred that she had

communicated with the city’s law department about the propriety of the “intent to

vacate order” and had received assurances from the city’s assistant law director that

the city would not enforce the order and that Jones and Waller would not be arrested

for returning to the apartment. Powell relayed this information to Jones. Based on

that assurance, Jones and Waller returned to the apartment on October 8, 2010.

Upon their arrival, they saw the additional documents ordering them to vacate or

face criminal prosecution. Jones called Legal Aid again, and Powell again contacted

the city’s law department and was again reassured that the city would not enforce the

vacate orders.

       {¶23}     Jones presented evidence that Stoker and Lewis returned to her

apartment on additional occasions in October. She claimed that they had returned

together on or about October 13, 2010. On that date, they banged on her door and

told her that she and Waller needed to leave. She recalled also that Lewis returned to

the apartment building later in October on a police run. When he saw Jones, he said,

“It’s not over. You think you’re gonna be here long. You’re not going to be in this

apartment long.”

       {¶24}     On October 14, 2010, Jones and Waller filed this multiple-claim

lawsuit against the city of Norwood; Stoker, in his individual capacity and in his




                                           8
                       OHIO FIRST DISTRICT COURT OF APPEALS



official capacity as the Norwood Building Commissioner;2 Sergeant Lewis in his

individual capacity, and John Does 1-5. Jones and Waller then sought and were

granted a temporary restraining order and a preliminary injunction against the

defendants.     The court rescinded the vacate orders, ordered the city and its

employees to provide Jones and Waller unfettered access to their apartment, and

restrained the city of Norwood and its employees from ordering Jones and Waller to

vacate the apartment and from “threatening” Jones and Waller “with criminal

prosecution and/or arrest for peacefully being in their home.”

        {¶25}    Jones moved out of the apartment in January 2011 and into another

apartment with Waller where the Talbert House pays her portion of the rent. She did

not appeal the vacate order administratively. Waller subsequently dismissed all

claims against the defendants.

        {¶26}    The defendants moved for summary judgment on all claims in the

amended complaint. In addition to attacking the merits of Jones’s claims, they

asserted immunity under state and federal law. Specifically, the city of Norwood

alleged Ohio’s political-subdivision immunity from the state law claims. Stoker, in

his individual and official capacity, and Lewis, in his individual capacity, alleged

Ohio’s political-subdivision-employee immunity from the state-law claims and

federal qualified immunity from the federal constitutional claims.

        {¶27}     Jones subsequently dismissed the Fair Housing Act, Ohio Civil

Rights and Equal Protection based claims, leaving only the 42 U.S.C. 1983 claims and

the state claims for negligence and the intentional infliction of emotional distress.

Jones then moved for partial summary judgment on her claim for municipal liability



2Jones and Waller added the claims against Stoker “acting in his official capacity as the Building
Commissioner” in an amended complaint.


                                                9
                       OHIO FIRST DISTRICT COURT OF APPEALS



against Norwood and Stoker in his official capacity based on a procedural-due-

process violation. She argued that the undisputed facts demonstrated the violation

of her procedural-due-process rights, and the city’s responsibility for that

unconstitutional action, because the deprivation was committed by a government

actor pursuant to a custom or policy and the act was committed by the final

policymaker for the governmental entity.

        {¶28}     The trial court granted summary judgment to the city on the state-law

claims on the basis of the political-subdivision immunity set forth in R.C. Chapter

2744. The court otherwise denied the defendants’ motion.

        {¶29}     The trial court granted partial summary judgment to Jones on her 42

U.S.C. 1983 claim against the municipality based on the violation of her procedural-

due-process rights, finding that Jones had established a procedural-due-process

violation but that a genuine issue of material fact remained as to the city’s liability for

the violation.3

                               II. Assignments of Error

        {¶30}     In two assignments of error, the city, Commissioner Stoker, and

Sergeant Lewis now argue that the trial court erred (1) by not granting summary

judgment to Stoker and Lewis on the state and federal claims, and (2) by granting

partial summary judgment to Jones upon finding a procedural-due-process

violation.




3  In its judgment entry, but not in its decision, the court granted summary judgment to Jones
against Stoker in his individual capacity on the procedural-due-process claim. Jones, however,
had moved for summary judgment against Stoker in his official capacity, which had the legal
significance of a claim against the municipality, for which qualified immunity did not apply.
Stoker does not purport to appeal that judgment except to the extent that he was denied qualified
immunity.


                                               10
                     OHIO FIRST DISTRICT COURT OF APPEALS



                                   A. Jurisdiction

       {¶31}   We first address our jurisdiction in this interlocutory appeal.       The

denial of a motion for summary judgment is generally not a final, appealable order.

Hubbell v. City of Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, ¶ 9.

But “[w]hen a trial court denies a motion in which a political subdivision or its

employee seeks immunity under R.C. Chapter 2744, that order denies the benefit of

an alleged immunity and is therefore a final, appealable order pursuant to R.C.

2744.02(C).” Id. at syllabus. Likewise, “[a]n order denying a motion for summary

judgment in which an employee of a political subdivision sought immunity from

claims brought under Section 1983, Title 42, U.S. Code is a final, appealable order

pursuant to R.C. 2744.02(C).” Summerville v. City of Forest Park, 128 Ohio St.3d

221, 2010-Ohio-6280, 943 N.E.2d 522. In this case, the trial court denied Stoker and

Lewis the benefit of an alleged immunity. Thus, this court has jurisdiction over the

interlocutory appeal, even in the absence of a Civ.R. 54(B) certification, to review the

trial court’s order denying the defendants the benefit of the alleged state and federal

immunity.

       {¶32}   The defendants additionally ask this court to review the propriety of

the trial court’s order denying summary judgment on the merits of the federal and

state claims and the trial court’s disposition of Jones’s motion for summary

judgment on the procedural-due-process claim against the city.            But the order

appealed is not otherwise final, and, therefore, this court’s jurisdiction in this appeal,

arising under R.C. 2744.02(C), is limited to the review of the trial court’s denial of

the benefit of immunity. See, e.g., Leasure v. Adena Local School Dist., 2012-Ohio-

3071, 973 N.E.2d 810, 822 (4th Dist.) (holding that when appealing a denial of

immunity under R.C. 2744.02(C), and the order is not otherwise final and



                                           11
                     OHIO FIRST DISTRICT COURT OF APPEALS



appealable, a party may not raise other alleged errors concerning the denial of

summary judgment.) See also Inwood Village, Ltd. v. City of Cincinnati, 1st Dist.

No. C-110117, 2011-Ohio-6632, ¶ 7 (noting that dismissal of plaintiffs’ appeal from

the trial court’s entry dismissing their contract claims was proper because the appeal

had not been taken from the order denying the political subdivision the benefit of an

alleged immunity).

       {¶33}   Nonetheless, application of the qualified-immunity analysis requires

some determination of the state of the constitutional law at the time of the alleged

state action. Thus, our jurisdiction includes the authority to resolve these issues

concerning the federal claims to the extent that is necessary to resolve the claim of

qualified immunity. Our jurisdiction does not extend to issues raised by Stoker and

Lewis concerning the merits of the state-law claims.

                             B. Standard of Review

       {¶34}   We review the grant or denial of summary judgment de novo,

applying the standards set forth in Civ.R. 56.   See Grafton v. Ohio Edison Co., 77

Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). To obtain summary judgment, the

movant must demonstrate that (1) there is no genuine issue of material fact; (2) the

movant is entitled to judgment as a matter of law; (3) and it appears from the

evidence that reasonable minds can come to but one conclusion when viewing

evidence in favor of the nonmovant, and that conclusion is adverse to the

nonmovant. Id. We first address Stoker’s and Lewis’s argument that the trial court

erred by failing to grant them summary judgment on the grounds of state and federal

immunity.




                                         12
                     OHIO FIRST DISTRICT COURT OF APPEALS



                             III. State Law Immunity

       {¶35}    Jones’s complaint contains state-law claims for the intentional

infliction of emotional distress and negligence against Stoker, individually, and in his

official capacity as Norwood Building Commissioner, and Lewis, individually. We

begin by clarifying the legal significance of Jones naming Stoker as a defendant in his

individual capacity and in his official capacity.

       {¶36}    Generally, making allegations against a named officeholder of a

political subdivision in his official capacity is the equivalent of suing the political

subdivision. See Lambert v. Clancy, Hamilton Cty. Clerk of Courts, 125 Ohio St.3d

231, 2010-Ohio-1483, 927 N.E.2d 585.             Here, Jones not only made allegations

against the building department, she clarified that she was suing Stoker in his official

capacity as the head of the building department, and in his individual capacity for his

personal involvement in the dispute. Thus, the allegations against Commissioner

Stoker in his official capacity involve municipal liability. Conversely, the allegations

against Commissioner Stoker in his individual capacity involve his personal liability.

       {¶37}    We make this distinction because the appropriate R.C. Chapter 2744

immunity analysis depends on whether the officerholder defendant is sued in his

official capacity or in his individual capacity. Lambert at ¶ 10. The analysis set forth

in R.C. 2744.02—political-subdivision-immunity analysis—applies when the named

defendant officerholder of a political subdivision is sued in his official capacity. The

analysis set forth in R.C. 2744.03(A)(6) applies to certain employees of political

subdivisions.

       {¶38}    In moving for summary judgment on the basis of immunity, Stoker,

in his official capacity and in his individual capacity, urged the trial court to grant

immunity under the analysis set forth in R.C. 2744.03(A)(6). The trial court denied



                                            13
                     OHIO FIRST DISTRICT COURT OF APPEALS



summary judgment to Stoker in his official capacity on the state-law claims using the

R.C. 2744.03(A)(6) analysis as erroneously urged by Stoker. Conversely, the trial

court granted summary judgment to the city on the state-law claims applying the

political-subdivision-immunity analysis set forth in R.C. 2744.02. Jones rightfully

conceded that the city was entitled to summary judgment on those claims on the

basis of immunity. Because Jones’s claims against Stoker in his official capacity were

claims against the city, and the city is entitled to immunity from liability from those

state-law claims, we conclude that the trial court erred by denying summary

judgment to Stoker in his official capacity on the state-law claims.

       {¶39}   The employee-immunity provision of R.C 2744.03(A)(6) governs

whether Stoker or Lewis are individually immune from liability for Jones’s two

remaining state-law claims—negligence and the intentional infliction of emotional

distress. With respect to both Stoker and Lewis, this statute provides for immunity

unless (a) their “acts or omissions were manifestly outside the scope of [their]

employment or official responsibilities;” (b) their “acts or omissions were with

malicious purpose, in bad faith, or in a wanton or reckless manner;” or (c) a section

of the Revised Code expressly imposed civil liability on them. R.C. 2744.03(A)(6)(a)-

(c).

       {¶40}   Jones concedes that the actions of Stoker and Lewis were not

manifestly outside the scope of their employment or official responsibilities, and the

evidence submitted on summary judgment demonstrates only that they were acting

within the scope of their employment and official responsibilities when they

committed the allegedly tortious acts. Therefore, the first exception to immunity

does not apply in this case.




                                           14
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶41}   Likewise, there is no evidence that a section of the Revised Code

expressly imposes civil liability on either of the individual defendants.

       {¶42}   The crux of the dispute, therefore, is whether the exception for

malicious, bad faith, and wanton or reckless acts or omissions set forth in R.C.

2744.03(A)(6)(b) applies. “Malicious purpose” is the willful and intentional design

to injure or harm another, generally seriously, through unlawful or unjustified

conduct. See, e.g., Chaney v. Norwood, 189 Ohio App.3d 124, 2010-Ohio-3434, 937

N.E.2d 634, ¶ 11; Cook v. City of Cincinnati, 103 Ohio App.3d 80, 90, 658 N.E.2d 814

(1st Dist.1995). “Bad faith” evinces a “dishonest purpose, conscious wrongdoing, the

breach of a known duty through some ulterior motive or ill will, as in the nature of

fraud, or an actual intent to mislead or deceive another.” Cook at 90-91.

       {¶43}   “Wanton misconduct is the failure to exercise any care toward those

to whom a duty of care is owed in circumstances in which there is a great probability

that harm will result.” Anderson v. City of Massillon, ___ Ohio St.3d ___, 2012-

Ohio-5711, ___ N.E.2d ___ (2012), paragraph three of the syllabus, approving and

following Hawkins v. Ivy, 50 Ohio St.2d 114, 363 N.E.2d 367 (1977).         On the other

hand, “[r]eckless conduct is characterized by the conscious disregard of or

indifference to a known or obvious risk of harm to another which is unreasonable

under the circumstances and substantially greater than negligent conduct.” Id. at

paragraph four of the syllabus, adopting 2 Restatement of the Law 2d, Torts, Section

500 (1965).

       {¶44}   Stoker and Lewis argue that the exception in R.C. 2744.03(A)(6)(b)

cannot apply as a matter of law to claims of negligence. Jones did not address this

part of Stoker’s and Lewis’s motion for summary judgment, and she has failed to




                                           15
                    OHIO FIRST DISTRICT COURT OF APPEALS



address the issue on appeal. Moreover, her bare-bones claim for negligence did not

allege any more than Stoker and Lewis “negligently performed their duty to [Jones.]”

       {¶45}   We agree with Stoker and Lewis that the exception to immunity for

political-subdivision employees set forth in R.C. 2744.03(A)(6)(b) does not reach

these allegations of merely negligent conduct. See Anderson at ¶ 23. Because none

of the other exceptions to immunity for political-subdivision employees apply to

Jones’s negligence claim against Stoker and Lewis in their individual capacities, they

are entitled to immunity on that claim. Thus, the trial court erred by denying

summary judgment to them on the negligence claim.

       {¶46}   Conversely, the exception to immunity for political-subdivision

employees set forth in R.C. 2744.03(A)(6)(b) does apply to Jones’s intentional

infliction-of-emotional-distress claim. To prevail on this exception to immunity,

Jones must show that Stoker and Lewis willfully harmed her, were motivated by a

dishonest purpose in breaching a duty owed to her, acted with no care whatsoever, or

that their actions were indifferent to a known or obvious risk of harm under the

circumstances. See R.C. 2744.03(A)(6)(b).

       {¶47}   In support of her intentional-infliction-of-emotional-distress claim,

Jones presented evidence that Stoker, as building commissioner, and Lewis, as the

Norwood police department’s liaison to KOPS, were involved in the decision to target

Jones’s apartment building and to issue the equivalent of an immediate vacate order

on October 6, 2010, even if the emergency order was not supported under the law.

Further, she presented evidence that both Stoker and Lewis had threatened to return

and arrest her if she did not comply with the October 6, 2010 order, and that at least

Lewis knew she was living in the unit with the assistance of a voucher from a social

services agency. Jones also presented evidence that Stoker and Lewis harassed her



                                         16
                      OHIO FIRST DISTRICT COURT OF APPEALS



about the vacate order after her lawyer had received assurances from the city that she

could stay.

         {¶48}   We conclude that whether Stoker acted in a wanton or reckless

manner, acted in bad faith, and/or acted with malicious purpose is a material issue

of genuine fact that remains in dispute, a finding that would deprive Stoker, in his

individual capacity, of his statutory immunity. We arrive at the same conclusion

with respect to Lewis. Accordingly, we affirm the trial court’s denial of summary

judgment on the basis of immunity to Stoker and Lewis in their individual capacities

on the intentional-infliction-of-emotional-distress claim.

         {¶49}   Stoker and Lewis additionally argue that Jones failed to establish that

she suffered “emotional distress,” and, therefore, the trial court erred by failing to

grant summary judgment to them on this claim on that basis.            As we noted in

discussing our jurisdiction in this appeal, this issue is beyond the scope of our

interlocutory appeal on the issue of immunity. Accordingly, we do not address that

issue.

                         IV. Federal Qualified Immunity

         {¶50}   Stoker and Lewis as individual defendants argue that they are entitled

to the protection of qualified immunity because they were acting with discretionary

authority at the time of the allegations. Stoker’s and Lewis’s immunity to the 42

U.S.C. 1983 claims is an issue of federal law. Cook, 103 Ohio App.3d at 85, 658

N.E.2d 814.

         {¶51}   The doctrine of federal qualified immunity shields government

officials from civil liability “insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d



                                           17
                       OHIO FIRST DISTRICT COURT OF APPEALS



396 (1982); Summerville v. City of Forest Park, 195 Ohio App.3d 13, 2011-Ohio-

3457, 958 N.E.2d 625, ¶ 17 (1st Dist.) We are mindful that while immunity generally

applies, “[w]hen government officials abuse their offices,” a civil action for damages

may supply the sole means “for vindication of constitutional guarantees.” Anderson

v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), quoting

Harlow at 814.

       {¶52}      Once the government official has presented facts that suggest he was

performing a discretionary function during the incident, the plaintiff bears the

burden of presenting evidence to meet a two-part test. The plaintiff must show: (1)

the violation of a constitutional right, and (2) that the right at issue was “clearly

established” at the time of defendant’s misconduct such that a reasonable official

acting with the same knowledge would understand that his actions violate that right.

See Summerville at ¶ 18.

       {¶53}      The trial court, and this court, may address these tests in any order.

See Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 818, 172 L.Ed.2d 565

(2009), modifying the procedure for resolving claims of qualified immunity

mandated in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).

       {¶54}      Because it is undisputed that Stoker and Lewis were acting within the

scope of their discretionary authority as building commissioner and police sergeant,

respectively, when the alleged constitutional violations occurred, we begin our review

of the trial court’s denial of qualified immunity by determining whether the facts

shown, when viewed in the light most favorable to Jones, demonstrate that the

actions of each of the individual defendants violated Jones’s clearly established due-

process rights.




                                            18
                     OHIO FIRST DISTRICT COURT OF APPEALS



                            A. Procedural Due Process

                                        1. Stoker

       {¶55}   The trial court determined that Stoker violated Jones’s Fourteenth

Amendment right to procedural due process when, in the absence of exigent

circumstances, he required Jones to vacate without a predeprivation hearing.

       {¶56}   The Due Process Clause of the Fourteenth Amendment guarantees

that “no State shall deprive * * * any person of life, liberty, or property, without due

process of law.” Fourteenth Amendment to the U.S. Constitution. The concept of

procedural due process constrains governmental-decision making that deprives

individuals of liberty or property interests protected by the Due Process Clause. See

Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).         The

requirements of due process are flexible, but at a minimum, the Due Process Clause

requires meaningful process at a meaningful time, as determined by a balancing of

the competing interests involved. See id.

       {¶57}   To succeed on a procedural-due-process claim, a plaintiff must

establish a constitutionally protected property or liberty interest and show that such

an interest was deprived without appropriate process. Bd. of Regents v. Roth, 408

U.S. 564, 569-70, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); LRL Properties v. Portage

Metro Hous. Auth., 55 F.3d 1097, 1108 (6th Cir.1995).

                a. Jones had a Protected Property Interest

       {¶58}   Jones’s procedural-due-process claim depends on her having a

protected property or liberty interest. She claims a protected property interest in her

leasehold estate. The United States Constitution does not create property interests.

Bd. of Regents at 577. Instead, “they are created and their dimensions are defined by

existing rules or understandings that stem from an independent source such as state



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                      OHIO FIRST DISTRICT COURT OF APPEALS



law.” Id; Thomas v. Cohen, 304 F.3d 563, 576 (6th Cir.2002). Under Ohio law,

tenants holding leasehold estates have a recognized property interest.        See R.C.

5321.01 and R.C. 5321.04; Carroll Weir Funeral Home v. Miller, 2 Ohio St.2d 189,

191, 207 N.E.2d 747 (1965). Thus, we conclude, as the trial court did, that Jones had

a recognized property interest for Fourteenth Amendment purposes.

                                b. Preeviction Hearing

       {¶59}    Possessory interests in property invoke the protections of procedural

due process. Fuentes v. Shevin, 407 U.S. 67, 87, 92 S.Ct. 1983, 32 L.E.2d 556 (1972).

This legal conclusion is “well-established.” Thomas at 576. Generally, due process

requires notice and a hearing prior to an eviction, which affects a significant property

interest. See id.; Flatford v. City of Monroe, 17 F.3d 162, 167 (6th Cir.1994), citing

Fuentes.

       {¶60}    There are rare exceptions to the requirement of a hearing prior to an

eviction. “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

at 167, citing Fuentes at 91.

       {¶61}    Stoker argued that the order was authorized under Norwood Building

Code 1331.12, which allows for “Emergency Measures.” That section provides:

            Vacating Structures. When the Code Official determines that

            there is actual and immediate risk of failure or collapse of a

            building or structure or any part thereof or the existence of

            defective equipment or service facilities such as to endanger life

            or health, or when any structure or part of structure has fallen or



                                          20
                      OHIO FIRST DISTRICT COURT OF APPEALS



             failed and use or occupancy of the structure, equipment, service

             facility and/or equipment or part thereof would, in his opinion,

             endanger life or health or where there is a particularly hazardous

             use of the building or structure such as to endanger life or health,

             the Code Official is hereby authorized and empowered to order

             and require the occupants and tenants to vacate the same

             forthwith, and/or to immediately cease, and refrain from use or

             operation of the building * * * or part thereof which is deemed

             dangerous.     The Code Official shall placard the building,

             structure or premise in accordance with the procedures of

             Section 1331.10.

       {¶62}    While this section allows the code official to issue an emergency

vacate order under exigent circumstances, including “where there is a particularly

hazardous use of the building or structure such as to endanger life or health,” for

such an emergency order to pass constitutional muster, the circumstances must

require “very prompt action” to secure an important public or governmental interest.

See Flatford, 17 F.3d 162, 167, citing Fuentes, 407 U.S. at 91, 92 S.Ct. 1983, 32

L.Ed.2d 556. In this case, the trial court found that as a matter of law, no exigent

circumstances existed such that a reasonable code official would have declared an

emergency.

       {¶63}     Stoker argues that a reasonable building inspector could have

concluded that there was a “safety” threat where he observed a makeshift bed placed

near the front door and Jones refused to reduce the number of occupants in the

apartment unit.     In support, he cites Flatford v. City of Monroe, 17 F.3d 162 (6th

Cir.1994).



                                            21
                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶64}   In Flatford, a building inspector issued an emergency vacate order

after observing exposed electrical wiring and nonfunctioning smoke detectors in a

wooden-framed structure occupied by families with children.        The Sixth Circuit

Court of Appeals held that the plaintiffs’ evidence failed to prove that a reasonable

building inspector under those circumstances could not conclude that the condition

of the structure posed an immediate threat to the safety of its occupants. See Sell v.

City of Columbus, 127 Fed.Appx. 754 (6th Cir.2005) (upholding judgment for code

enforcement officer on claim alleging emergency vacate order violated procedural

due process rights where evidence supported a finding that a code enforcement

officer could have reasonably concluded that the unsanitary conditions in a home

occupied by two ill elderly residents, with 33 dogs and four birds on or about the

premises, posed an immediate threat to health and safety of the occupants); Elsmere

Park Club, L.P. v. Town of Elsmere, 542 F.3d 412 (3d Cir.2008) (upholding

summary judgment for town in property owner’s 42 U.S.C. 1983 action alleging the

violation of procedural-due-process rights when town condemned apartment

complex without a predeprivation hearing, where competent evidence supported a

reasonable belief that the serious mold infestation in the complex presented an

emergency).

       {¶65}   Jones argues that the circumstances in this case did not raise any

safety concern, much less the serious and imminent safety concern at issue in

Flatford. She maintains that Stoker ordered her to vacate under the pretext of a code

violation and that the circumstances did not warrant immediate action.

       {¶66}   In analyzing Stoker’s decision to issue the same-day eviction, we look

to whether the record contains evidence that a reasonable building commissioner

could have concluded that the condition of the apartment posed an immediate threat



                                         22
                     OHIO FIRST DISTRICT COURT OF APPEALS



to the safety of its occupants. Flatford at 168. It is undisputed that Stoker, in his

supervisory role, issued the vacate order knowing that Jones had two doors to the

apartment. Further, the evidence demonstrates that the makeshift bed, consisting of

blankets and pillows, did not prevent the occupants from easily opening the door and

exiting the apartment. Finally, the evidence demonstrated that none of the building

department officials measured the size of the bedroom to determine whether the

“overcrowding” guidelines were violated. Even if we deem this a reasonable mistake

by the building official, no reasonable official could have believed that the occupancy

of two individuals in a one-bedroom apartment approved for four occupants

warranted an emergency order to vacate. Therefore, Jones established her right to a

preeviction hearing, a hearing that undisputedly did not occur.

                   c. “Suitable Postdeprivation Remedy”

       {¶67}   Stoker argues also that Jones’s right to appeal the vacate order after

the eviction satisfied the Due Process Clause, citing Parratt v. Taylor, 451 U.S. 527,

538, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled in part on other grounds,

Daniels v. Williams, 474 U.S. 327, 330-331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986).

This argument is premised upon his prior argument that the planned inspection

revealed exigent circumstances that justified the deprivation of property. But we

have rejected Stoker’s claim that a reasonable building commissioner could have

found exigent circumstances under these facts.              Thus, the existence of

postdeprivation remedies is “irrelevant.” Leslie v. Lacy, 91 F.Supp.2d 1182, 1188

(S.D.Ohio 2000). See Elsmere Park Club, 542 F.3d at 417.

       {¶68}   Apart from only minimal notice to leave, Stoker provided Jones with

no due process before the eviction. Jones vacated the apartment immediately, and

she did not return for two days. Because the record does not contain facts from



                                          23
                       OHIO FIRST DISTRICT COURT OF APPEALS



which a reasonable building commissioner could conclude that the occupants might

be imminently endangered, and the law clearly established Jones’s right to a

predeprivation hearing absent those exigent circumstances, we hold that Stoker was

not entitled to summary judgment on his claim of qualified immunity from the

procedural-due-process claim.

                                        2. Lewis

         {¶69}    In this case, it was sufficiently clear at the time of the eviction that

Jones was entitled to a predeprivation hearing in the absence of exigent

circumstances. We have held that the necessary exigent circumstances did not exist.

But whether exigent circumstances actually justified the same-day eviction does not

resolve the question of Lewis’s qualified immunity. Flatford, 17 F.3d at 170.

         {¶70}    Generally, police officers are given “wide latitude to rely on a

building-safety official’s expertise where that expert determination has some basis in

fact.”   Id.     But, “[i]f there are suspicious circumstances which would lead a

reasonable officer to scrutinize whether an inspector’s actions are wholly arbitrary,

then reliance upon the inspector’s judgment should not shield officers who act

unreasonably.      Similarly, officers should not be immune if there is affirmative

evidence that the officers actually knew that the city official was * * * fabricating a

story * * *.” Id. at fn. 9.

         {¶71}    In this case, the evidence presented, when viewed in the light most

favorable to Jones, demonstrated that Lewis knew or had sufficient reason to believe

that Stoker issued the emergency vacate order without legal justification. Lewis was

the police liaison for the KOPS program and he was involved in the decision to

inspect Jones’s apartment unit. Further, he participated in the same-day eviction of

the occupants of the lower-level apartment units in the building and Jones’s unit for



                                             24
                     OHIO FIRST DISTRICT COURT OF APPEALS



“overcrowding.” In his deposition, Lewis could not identify any reason why it was

imperative for Jones to leave that day. In sum, the record contains evidence to

support Jones’s theory that Stoker had made the determination to issue the

emergency vacate order before the “inspection” and that Lewis was aware of this

plan.

        {¶72}   The record in this case contains some evidence that Lewis acted with

knowledge that Stoker had not based the emergency vacate order on exigent

circumstances. For this reason, Lewis was not entitled to summary judgment on his

claim of qualified immunity.

                          B. Substantive Due Process

        {¶73}   Jones cannot avoid Stoker’s and Lewis’s claim of qualified immunity

with respect to the substantive-due-process claim unless the facts shown, when

viewed in the light most favorable to her, demonstrate that their actions violated a

clearly established substantive-due-process right.

        {¶74}    The United States Supreme Court has noted that the contours of the

due-process clause “guarantee more than fair process and * * * cover a substantive

sphere as well, barring certain government actions regardless of the fairness of the

procedures used to implement them.” (Internal citation and quotations omitted.)

Cty. of Sacramento v. Lewis, 523 U.S. 833, 840, 118 S.Ct. 1708, 140 L.E.2d 1043

(1998).

        {¶75}   With respect to the substantive-due-process claim, Jones’s amended

complaint stated, in part, as follows:

           Defendants are state actors and acted under color of state law as to

           the matters set forth above with the intent to deprive Plaintiff[] of




                                          25
                     OHIO FIRST DISTRICT COURT OF APPEALS



          [her] constitutional right to due process and opportunity to be

          heard before being denied a protected property interest.

          Plaintiff[] ha[s] a significant property interest in continued

          residency at [her] rental home which is subject to the requirement

          of due process.

          Defendants’ acts and omissions as stated above deprived Plaintiff[]

          of [her] significant property interest in continued residency in the

          rental home * * * .

       {¶76}   Jones essentially argued that the acts and omissions that deprived her

of property without procedural due process also violated her Fourteenth Amendment

substantive-due-process rights because Stoker’s and Lewis’s actions were an

arbitrary and capricious abuse of power and they lacked a rational basis for the

deprivation. The trial court determined that genuine issues of material fact on this

issue precluded summary judgment.

       {¶77}   Stoker and Lewis argue that substantive-due-process claims are

limited to claims involving the violation of protected liberty interests only, and not

merely the deprivation of a property interest, which is protected by procedural due

process. They argue also that there is no separate substantive-due-process right at

issue, citing Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct. 807, 127 L.Ed.2d 114

(1994). The Albright court held that “where a particular Amendment ‘provides an

explicit textual source of constitutional protection’ against a particular source of

government behavior, ‘that Amendment, not the more generalized notion of

substantive due process, must be the guide for analyzing these claims.’ ” Id.

       {¶78}   Jones argues that substantive due process protects property interests

as well as liberty interests. In support, Jones cites EJS Properties, LLC v. City of



                                          26
                      OHIO FIRST DISTRICT COURT OF APPEALS



Toledo, 698 F.3d 845 (6th Cir.2012). In that case, involving a zoning decision, the

Sixth Circuit reiterated that substantive due process mandates that “ ‘state legislative

and administrative actions depriving the citizen of life, liberty, or property must

have some rational basis.’ ” (Emphasis added.) Id. at 862, quoting Pearson v. City of

Grand Blanc, 961 F.2d 1211, 1223 (6th Cir.1992).

         {¶79}   We decline to elaborate on the scope of the protections afforded by

the substantive component, as opposed to procedural component, of the due process

clause, except to hold that Jones’s reliance on the former in this case is misplaced.

She alleged only the deprivation of a property right, not the deprivation of a

“fundamental right” protected by the substantive component of the Due Process

Cause.

         {¶80}   “The Due Process Clause provides that certain substantive rights—

life, liberty, and property—cannot be deprived except pursuant to constitutionally

adequate procedures.” Cleveland Bd. of Edn. v. Loudermill, 470 U.S. 532, 541, 105

S.Ct. 1487, 84 L.Ed.2d 494 (1985). “The categories of substance and procedure are

distinct.” Id. As Justice Powell explained, “[n]ot every [property ] right is entitled to

the protection of substantive due process. While property interests are protected by

procedural due process even though the interest is derived from state law rather than

the Constitution, substantive-due-process        rights are created      only by the

Constitution.” (Internal citation omitted.) Regents of Univ. of Michigan v. Ewing,

474 U.S. 214, 229, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985) (Powell, J., concurring

separately). See Charles v. Baesler, 910 F.2d 1349, 1354 (6th Cir.1990).

         {¶81}   The question, then, is whether Jones’s interest asserted here—her

continued residency in her rented apartment—“bears a resemblance to the

fundamental interests that previously have been viewed as implicitly protected by the



                                           27
                    OHIO FIRST DISTRICT COURT OF APPEALS



Constitution.” Ewing at 229. Jones’s interest, boiled down to its essence, is a state-

law contract right. While this property right is very important, Jones has established

only that she has this property right—not that it is a fundamental right. Because

Jones has not demonstrated a substantive fundamental right to continued residency

in her rented apartment, we conclude that Stoker and Lewis were entitled to

qualified immunity on the substantive-due-process-based 42 U.S.C. 1983 claim.

                  V. Partial Summary Judgment for Jones

       {¶82}   In its second assignment of error, the city argues that the trial court

erred by granting partial summary judgment to Jones. Jones moved for summary

judgment against the city and Stoker in his official capacity on count four of the

complaint, the 42 U.S.C. 1983 claim, based on a procedural-due-process violation.

The trial court held that Jones had established a due-process violation, and it

granted summary judgment to Jones on that portion of her procedural-due-process-

based 42 U.S.C. 1983 claim against the municipality.

       {¶83}   We addressed the issue of the due-process violation to the extent

necessary to resolve the issue of qualified immunity, consistent with the scope of our

jurisdiction. In the context of the qualified-immunity analysis, we affirmed the trial

court’s determination that Jones had shown the violation of her clearly established

procedural-due-process right to a predeprivation hearing. In accordance with this

holding, we overrule the second assignment of error.

                                 VI. Conclusion

       {¶84}   Upon our determination that issues of fact remain as to whether, for

purposes of the immunity afforded under R.C. 2744.03(A)(6), Stoker’s and Lewis’s

conduct was wanton, willful, in bad faith, or reckless, we affirm the trial court’s

denial of summary judgment to those employee defendants on their claim of state-



                                         28
                    OHIO FIRST DISTRICT COURT OF APPEALS



law immunity. We reverse the trial court’s denial of summary judgment to Stoker, in

his official capacity, on his claim of state-law immunity, upon our determination that

the political-subdivision-immunity analysis applies and that no issue of material fact

remains as to Norwood’s immunity.

       {¶85}   Additionally, we affirm the trial court’s denial of summary judgment

to Stoker on his claim of qualified immunity, upon our determination that the record

contains evidence that he violated Jones’s clearly established procedural-due-process

rights when, in the absence of exigent circumstances, he authorized the issuance and

enforcement of an emergency vacate order. Likewise, upon our determination that

the record contains some evidence supporting a finding that Lewis knew that Stoker

was issuing the emergency vacate order in violation of Jones’s procedural-due-

process rights, we affirm the trial court’s denial of summary judgment to Lewis on

his claim of qualified immunity.

                   Judgment affirmed in part, reversed in part, and cause remanded.

SUNDERMANN, P.J., and HENDON, J., concur.

J. HOWARD SUNDERMANN, retired, from the First Appellate District, sitting by
assignment.

Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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