[Cite as Parmelee v. Schnader, 2018-Ohio-707.]



                           STATE OF OHIO, MAHONING COUNTY
                                 IN THE COURT OF APPEALS
                                       SEVENTH DISTRICT

NANCY PARMELEE ET AL.,                           )
                                                 )
        PLAINTIFFS-APPELLANTS,                   )
                                                 )           CASE NO. 17 MA 0026
V.                                               )
                                                 )                  OPINION
GENE SCHNADER ET AL.,                            )
                                                 )
        DEFENDANTS-APPELLEES.                    )

CHARACTER OF PROCEEDINGS:                        Civil Appeal from Court of Common
                                                 Pleas of Mahoning County, Ohio
                                                 Case No. 2015 CV 1919

JUDGMENT:                                        Affirmed.

APPEARANCES:
For Plaintiffs-Appellants                        Attorney Anthony Farris
                                                 Attorney Jennifer Ciccone
                                                 860 Boardman-Canfield Road, Suite 204
                                                 Youngstown, Ohio 44512

For Defendants-Appellees                         Attorney Gregory Beck
                                                 Attorney Tonya Rogers
                                                 400 South Main Street
                                                 North Canton, Ohio 44720




JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Carol Ann Robb


                                                 Dated: February 22, 2018
[Cite as Parmelee v. Schnader, 2018-Ohio-707.]
DONOFRIO, J.

        {¶1}    Plaintiffs-appellants, Nancy Parmelee and Amy Sloan, appeal from a
Mahoning County Common Pleas Court judgment granting summary judgment in
favor of defendants-appellees, Steven Kotheimer, the Goshen Police District, and
Goshen Township, and finding that appellees were entitled to qualified immunity.
        {¶2}    Appellant Nancy Parmelee is defendant Gene Schnader’s ex-wife.
Appellant Amy Sloan is Parmelee’s adult daughter but is unrelated to Schnader.
Schnader resides in a house on Pine Lake Road in Salem. He also owns a separate
guest house on that property.
        {¶3}    During the end of May 2014, Sloan and her minor children moved into
Schnader’s guest house. Parmelee and her grandson moved into Schnader’s main
residence. The parties did not enter into a written lease and appellants paid no rent
to Schnader. On July 25, 2014, Parmelee informed Schnader that she was going to
find other living arrangements. The next day, Schnader changed the locks on the
main house and the guest house.                  He also placed some of appellants’ personal
property in bags and placed the bags on the porch.
        {¶4}    On July 27, 2014, appellee Officer Steven Kotheimer was dispatched to
Schnader’s property on a call from Parmelee.                 Officer Kotheimer arrived at the
property before appellants arrived there. Appellants sought to retrieve their personal
belongings from inside of Schnader’s house and guest house, which were both
locked. Officer Kotheimer told appellants that he could not force Schnader to grant
them access to the houses.
        {¶5}    Officer Kotheimer informed appellants that a dispute over personal
property was a civil matter and if Schnader did not want them on his property, they
would have to leave.          Officer Kotheimer did not forcibly remove appellants from
Schnader’s property.          Appellants loaded up the bags of their belongings that
Schnader had left outside and they left.
        {¶6}    Appellants returned to Schnader’s property on July 31, 2014 and again
on August 4, 2014. Sloan collected all of her remaining personal property. Parmelee
claims some of her personal property is still in Schnader’s house.
                                                                               -2-


      {¶7}    Appellants filed a 16-count complaint on July 22, 2015, against
Schnader and appellees. Of the 16 counts, four were against appellees. Appellants
asserted that appellees deprived them of their Fourteenth Amendment right against
deprivation of property without due process and their Fourth Amendment right
against illegal seizures of their persons and property. They also asserted Goshen
Police District and Goshen Township failed to adequately train its officers in landlord-
tenant disputes.
      {¶8}    Appellees filed a motion for summary judgment on April 1, 2016,
asserting they were entitled to qualified immunity. Appellants filed a response in
opposition.
      {¶9}    A magistrate considered appellees’ summary judgment motion.
      {¶10} As to the claims against Officer Kotheimer, the magistrate found that
appellants were denied their possessory right to their personal property by Schnader.
He pointed out that when Officer Kotheimer arrived on the scene, Schnader had
already changed the locks and placed some of appellants’ personal property outside.
The magistrate noted that Officer Kotheimer played no role in this. Moreover, he
found it was undisputed that Schnader would not allow appellants into his property to
retrieve the rest of their belongings. The magistrate noted that when asked what the
officer did to lead them to believe he was evicting them, appellants only stated that
Officer Kotheimer denied them access to the property. But the magistrate noted that
the doors were locked, appellants did not have a key, and they admitted the only way
they could have gained access into the houses would have been to break down a
door or window. Moreover, the magistrate noted that appellants were able to return
to their own homes on the day in question. Thus, the magistrate determined that
Officer Kotheimer did not meaningfully interfere with appellants’ possessory interests
in their property and, therefore, there was no seizure under the Fourteenth
Amendment.
      {¶11} As to the claims against the Goshen Police District (GPD), the
magistrate found that the GPD was a township police department and is not sui juris,
                                                                                    -3-


a legal entity.   Therefore, the magistrate found the GPD did not have the legal
capacity to be sued.
       {¶12} Finally, as to the claims against Goshen Township, the magistrate
found that appellants failed to establish that the township was on notice that an
alleged lack of training could lead to violations of citizens’ rights and that the failure to
take action amounted to deliberate indifference.         Moreover, the magistrate found
there was no need for training by the township since there was no injury caused by
an officer in this case and appellants failed to allege any past history of injury or
abuse.
       {¶13} Based on the above, the magistrate granted appellees’ motion for
summary judgment and dismissed the complaint against them.
       {¶14} Appellants filed objections to the magistrate’s decision arguing the
magistrate misconstrued the law dealing with qualified immunity.
       {¶15} On October 19, 2016, the trial court ruled on the objections and found
the magistrate properly determined the factual issues and appropriately applied the
law.     Therefore, the trial court overruled appellants’ objections, adopted the
magistrate’s decision, and entered summary judgment in favor of appellees.
       {¶16} On January 25, 2017, the trial court entered an amended judgment
entry adding the Civ.R. 54(B) language that there was no just reason for delay.
Appellants filed a timely notice of appeal On February 13, 2017.
       {¶17} Appellants now raise two assignments of error asserting summary
judgment was in error.
       {¶18} In reviewing a trial court's decision on a summary judgment motion,
appellate courts apply a de novo standard of review.            Cole v. Am. Industries &
Resources Corp., 128 Ohio App.3d 546, 552, 715 N.E.2d 1179 (7th Dist.1998).
Thus, we shall apply the same test as the trial court in determining whether summary
judgment was proper. Civ.R. 56(C) provides that the trial court shall render summary
judgment if no genuine issue of material fact exists and when construing the
evidence most strongly in favor of the nonmoving party, reasonable minds can only
                                                                                 -4-


conclude that the moving party is entitled to judgment as a matter of law. State ex
rel. Parsons v. Flemming, 68 Ohio St.3d 509, 511, 628 N.E.2d 1377 (1994).              A
“material fact” depends on the substantive law of the claim being litigated. Hoyt, Inc.
v. Gordon & Assoc., Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th
Dist.1995), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986).
       {¶19} Appellants’ first assignment of error states:

              THE     LOWER        COURT       ERRED      IN    FINDING      THAT
       DEFENDANT-APPELLEE STEVEN KOTHEIMER WAS ENTITLED TO
       QUALIFIED IMMUNITY.

       {¶20} In their first assignment of error, appellants contend the trial court erred
in finding that Officer Kotheimer was entitled to immunity.         Appellants claim that
Officer Kotheimer ordered them to leave under threat of arrest. They assert that an
illegal eviction conducted with law enforcement present to prevent interference
constitutes a Fourth Amendment violation by the officer.          Appellants assert they
presented evidence that Schnader was their landlord, they had rental agreements
with him, and their belongings were in their premises. Appellants claim these same
facts demonstrate a due process violation because Officer Kotheimer, in effectuating
the eviction, interfered with their possessory interest in their property.
       {¶21} Appellants brought their claims against appellees pursuant to 42 U.S.C.
§1983. In order to prove a claim under §1983, “a plaintiff must establish: (1) that he
was deprived of a right secured by the Constitution or laws of the United States, and
(2) that he was subjected to or caused to be subjected to this deprivation by a person
acting under color of state law.” Searcy v. City of Dayton, 38 F.3d 282, 286 (6th
Cir.1994), citing Flagg Bros. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 56 L.Ed.2d
185 (1978).
       {¶22} A governmental official sued under 42 U.S.C. §1983 may assert the
defense of qualified immunity when their conduct “does not violate clearly established
                                                                                -5-


statutory or constitutional rights of which a reasonable person would have known.”
Vlcek v. Chodkowski, 2d Dist. No. 26078, 2015-Ohio-1943, ¶ 20, quoting Harlow v.
Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In determining
whether to grant qualified immunity, the court must apply a three-part test:          (1)
whether the facts when viewed in the light most favorable to the plaintiff shows that a
constitutional violation has occurred; (2) whether the violation involved a clearly
established constitutional right of which a reasonable person would have known; and
(3) whether the plaintiff has offered sufficient evidence to demonstrate that what the
official allegedly did was objectively unreasonable in light of the clearly established
constitutional rights. Id. citing Radvansky v. City of Olmsted Falls, 395 F.3d 291, 302
(6th Cir.2005). Once the defendant raises the defense of qualified immunity, it is the
plaintiff's burden to establish that the defendant is not entitled to qualified immunity.
Id. citing Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir.2006).
       {¶23} According to Parmelee, Schnader suggested it would be cheaper if they
only paid one set of expenses so she moved into Schnader’s house in May of 2014.
(Parmelee Dep. 11-13). She did not have a written lease with Schnader, did not pay
rent to Schnader, her name was not on the deed to Schnader’s house, and her
driver’s license did not reflect Schnader’s address. (Parmelee Dep. 13, 15). She did
have a key to the house. (Parmelee Dep. 13). Additionally, Parmelee still owned her
own house in Youngstown during the time she stayed with Schnader. (Parmelee
Dep. 16).
       {¶24} Similarly, Sloan stated that she began living in Schnader’s guest house
in May of 2014. (Sloan Dep. 8, 9). Sloan did not pay rent, did not have a written
rental agreement, her name was not on the deed, and her driver’s license did not
reflect Schnader’s address. (Sloan Dep. 8, 12). She did have a key. (Sloan Dep. 8).
Additionally, Sloan stated that she lived at an address in Columbiana from April 2007
until March 2015. (Sloan Dep. 6).
       {¶25} Parmelee stated that on the day in question she went to Schnader’s
property with Sloan and found numerous bags on the front porch with Sloan’s
                                                                               -6-


belongings in them. (Parmelee Dep. 24). Parmelee stated that the police officer who
was there told them they needed to load the bags into their car or their bags would
be gone. (Parmelee Dep. 26). Parmelee thought the officer left and then another
officer returned later. (Parmelee Dep. 28). She also stated that the officer told her
and Sloan to hurry up and to leave the property and that he would physically remove
her from the property if she did not leave. (Parmelee Dep. 29, 34). But he did not
physically remove her. (Parmelee Dep. 34).
         {¶26} According to Sloan, when she arrived at Schnader’s property on the
day in question, Officer Kotheimer was already there. (Sloan Dep. 11). She stated
that she pleaded with the officer to let her into both the guest house and the main
house because all of her belongings were in there. (Sloan Dep. 12).
         {¶27} Parmelee stated that she tried to get into Schnader’s house on the day
in question but the door was locked and Schnader would not answer the door.
(Parmelee Dep. 29).
         {¶28} When asked whether Parmelee could have gotten into Schnader’s
house had the officer not been there, Parmelee stated, “I suppose if I broke a door or
a window maybe.” (Parmelee Dep. 34).
         {¶29} When asked how Officer Kotheimer deprived her of her constitutional
rights, Sloan simply stated that he “just wouldn’t allow me to go in and get my things.”
(Sloan Dep.16).     Then, when asked about her damages, Sloan replied that she
suffered psychological damages from what Schnader had done and that Schnader
still had her belongings.     (Sloan Dep. 17-18).      When asked how the police
department was responsible for her damages, Sloan responded, “[j]ust in the manner
and way he [Officer Kotheimer] was treating us that day.” (Sloan Dep. 18).
         {¶30} According to Officer Kotheimer, he was dispatched to Schnader’s
property on the day in question after Parmelee placed a call to the police to meet her
there.    (Kotheimer Dep. 14-15).   When he arrived, Parmelee was not there yet.
(Kotheimer Dep. 17). Schnader was home and Officer Kotheimer spoke with him.
(Kotheimer Dep. 30). Schnader relayed to the officer that appellants did not reside at
                                                                             -7-


his property, although he had allowed them to stay there, and he did not want any
contact with them at that time. (Kotheimer Dep. 30-31, 36). Officer Kotheimer never
entered the residence. (Kotheimer Dep. 40).
        {¶31} Officer Kotheimer testified that appellants arrived and he spoke with
them.    (Kotheimer Dep. 39).    He stated that Parmelee showed him her driver’s
license, which had an address other than Schnader’s address and she indicated she
had been staying with a friend. (Kotheimer Dep. 39). He told appellants that this was
a civil matter and if Schnader did not want them in his house, there was nothing he
could do about it.    (Kotheimer Dep. 40).    He told appellants he could not force
Schnader to let them in. (Kotheimer Dep. 41-42). He told appellants they would
have to leave if Schnader did not want them on his property. (Kotheimer Dep. 42-
43).
        {¶32} Based on the evidence, the trial court properly granted summary
judgment in favor of Officer Kotheimer and correctly found that he was entitled to
qualified immunity.
        {¶33} The testimony is uncontroverted that Schnader changed the locks and
did not allow appellants into the house or guest house and that Schnader placed
some of appellants’ belongings into bags and left them on the porch. The testimony
is also uncontroverted that had Officer Kotheimer not responded to the call at
Schnader’s house, appellants would not have been able to gain access to the inside
of the house or the guest house. Thus, whether Officer Kotheimer was present at
this scene made no difference as to whether appellants would have been able to
access their belongings that were allegedly inside Schnader’s house and guest
house.    Appellants were locked out by Schnader. The only way they could have
gained entrance was to break down a door or window. Appellants may have been
deprived of their property by Schnader.       But the evidence is clear that Officer
Kotheimer had nothing to do with Schnader’s conduct.
        {¶34} Even construing the evidence in the light most favorable to appellants,
as we are required to do, does not suggest in any way that Officer Kotheimer violated
                                                                                -8-


appellants’ clearly established statutory or constitutional rights.     Thus, summary
judgment in Officer Kotheimer’s favor was proper.
       {¶35} Accordingly, appellant’s first assignment of error is without merit and is
hereby overruled.
       {¶36} Appellants’ second assignment of error states:

              THE LOWER COURT ERRED IN FINDING THAT THE
       ESTABLISHED        FACTS      SUPPORTED        A    JUDGMENT        THAT
       DEFENDANT-APPELLEES            GOSHEN        POLICE     DISTRICT      AND
       GOSHEN TOWNSHIP HAD NO GOVERNMENTAL LIABILITY.

       {¶37} In this assignment of error, appellants assert the trial court erred in
finding that because there was no injury to appellants by Kotheimer, appropriate
training would not have prevented the injury.
       {¶38} We will address the claims against the GPD and the township
separately.
       {¶39} As to the GPD, “[a] city police department is not sui juris; the real party
in interest is the city itself.” Cooper v. Youngstown, 7th Dist. No. 15 MA 0029, 2016-
Ohio-7184, ¶ 26. The same applies to townships. Township police departments
cannot sue or be sued. Smith v. McBride, 10th Dist. No. 09AP-571, 2010-Ohio-1222,
¶ 8, aff'd, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954. Therefore, the trial
court properly found the GPD could not be sued here and summary judgment in its
favor was proper.
       {¶40} As to Goshen Township, a municipality can only be held liable on a
§1983 claim if the plaintiff demonstrates that the injury suffered was a direct result of
the city's official policy or custom. Slusher v. Carson, 540 F.3d 449, 456-457 (6th
Cir.2008), citing Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 694-
695, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The Sixth Circuit explained:

       The inadequacy of police training only serves as a basis for § 1983
                                                                                  -9-


       liability “where the failure to train amounts to deliberate indifference to
       the rights of persons with whom the police come into contact.” Harris,
       489 U.S. at 388, 109 S.Ct. 1197 (emphasis added). “To establish
       deliberate indifference, the plaintiff ‘must show prior instances of
       unconstitutional conduct demonstrating that the County has ignored a
       history of abuse and was clearly on notice that the training in this
       particular area was deficient and likely to cause injury.’ ” St. John v.
       Hickey, 411 F.3d 762, 776 (6th Cir.2005) (quoting Fisher v. Harden,
       398 F.3d 837, 849 (6th Cir.2005)); see also Miller v. Calhoun County,
       408 F.3d 803, 816 (6th Cir.2005) (concluding that, absent evidence of a
       “history of similar incidents” or notice, or evidence that the
       governmental entity's “failure to take meliorative action was deliberate,”
       plaintiff's claim of municipal liability under § 1983 fails).

Id. at 457.
       {¶41} Firstly, we note that appellants presented no evidence that Goshen
Township has a history of police officers committing constitutional violations while
dealing with property disputes or landlord-tenant issues. In fact, appellants did not
present evidence of even one prior instance similar to their allegations here. Thus,
there is no evidence that the township “ignored a history of abuse and was clearly on
notice that the training in this particular area was deficient and likely to cause injury.”
On this basis alone, appellants’ claims against the township must fail.
       {¶42} Moreover, appellants offered no evidence that the alleged injury they
suffered was a direct result of the township’s official policy or alleged lack of training.
The alleged injury suffered by appellants was that they were denied access to their
belongings. But as discussed above, it was Schnader who changed the locks on the
doors and denied appellants access. And it was Schnader who bagged up their
belongings and left them on the porch.          Thus, there is no evidence of a causal
connection between the township’s alleged failure to train its officers and appellants’
alleged injury.
                                                                             - 10 -


       {¶43}    In sum, the trial court properly granted summary judgment in favor of
the GPD and Goshen Township.
       {¶44} Accordingly, appellants’ second assignment of error is without merit and
is overruled.
       {¶45} For the reasons stated above, the trial court’s judgment is hereby
affirmed.




Waite, J., concur

Robb, P. J., concur
