                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 18a0580n.06

                                         Case Nos. 17-4151/4166

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT

                                                                                           FILED
                                                                                    Nov 20, 2018
TED BOWMAN,                                                )
                                                                                DEBORAH S. HUNT, Clerk
                                                           )
     Plaintiff-Appellant/Cross-Appellee,                   )
                                                           )       ON APPEAL FROM THE UNITED
v.                                                         )       STATES DISTRICT COURT FOR
                                                           )       THE NORTHERN DISTRICT OF
CITY OF OLMSTED FALLS, et al.,                             )       OHIO
                                                           )
     Defendants-Appellees/Cross-Appellants.                )


BEFORE: GRIFFIN and DONALD, Circuit Judges; BERTELSMAN, District Judge*

        BERNICE BOUIE DONALD, Circuit Judge. For more than fifteen years, Ted Bowman

has fought with the City of Olmsted over citations he received for violations of city ordinances on

his property.     Bowman has long argued that the City’s Chief Building Official, Robert

McLaughlin, selectively enforced zoning laws against Bowman, and more recently that the City

impermissibly auctioned off Bowman’s chattel. Various administrative bodies and courts have

considered and rejected these claims. Nevertheless, Bowman persisted. He filed suit against the

City and McLaughlin in the district court in 2016, alleging violations of his Fifth and Fourteenth

Amendment rights. The district court dismissed Bowman’s claims on summary judgment on

several grounds. Now before this court are cross-appeals: Bowman appeals the summary judgment



*
  The Honorable William O. Bertelsman, Senior United States District Judge for the Eastern District of Kentucky,
sitting by designation.
Case Nos. 17-4151/4166, Bowman v. City of Olmsted Falls, et al.


order and the City appeals the district court’s denial of the City’s motion for costs and fees. For

the reasons stated herein, we AFFIRM IN PART, REVERSE IN PART, and REMAND for a

cost and fees analysis consistent with this order.

                                                     FACTS

        Purchase of the Property. This case arises from a long, contentious history between

Bowman and McLaughlin. It was going well for Bowman between May 2001 and April 2002, the

time when he purchased Permanent Parcel No. 291-10-007 (the “Property”) in the City of Olmsted

Falls (the “City”) and the time when the City hired McLaughlin as its Chief Building Official,

respectively.     As the Chief Building Official, McLaughlin was tasked with inspection and

enforcement of state and city zoning, land use, and construction codes in the city. He carried out

his job with great vigor, apparently.

        First Citations to Bowman. Bowman received his first citation from McLaughlin in 2002

for illegally cutting down trees and installing a driveway on the Property without submitting plans

or obtaining required permits. McLaughlin felt that Bowman “was essentially using the Property

as a junk yard,” and continued to issue additional citations to Bowman for some extended period

of time.1 In 2006, after several citations accumulated and had been referred for prosecution, the

prosecutor dismissed them “[t]o avoid the inconvenience and costs of further litigation” and so

that Bowman could pursue alternative resolution.

        Variance Request. Seeking a variance, Bowman filed an application with the Board of

Zoning Appeals (“BZA”) to declare his use of the property as a legal, pre-existing, non-conforming

use. The BZA held a hearing and denied the application. Then Bowman appealed that decision

to the City Council, which held a hearing and affirmed the BZA’s order. Bowman appealed the


1
 Neither the record nor the briefing makes clear exactly when Bowman received the citations that formed the basis of
his request for a variance.

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Case Nos. 17-4151/4166, Bowman v. City of Olmsted Falls, et al.


decision further to the Cuyahoga County Court of Common Pleas, arguing that he was entitled to

a zoning variance based on the historic uses of the Property and because he had been individually

singled out for prosecution while other property owners faced no punishment for code violations.

On July 11, 2007, the Court of Common Pleas affirmed the BZA’s order and denied Bowman a

variance.

       Guilty Plea. Bowman continued to violate city ordinances through his use of the Property;

and McLaughlin continued to respond in kind by issuing citations and initiating litigation. After

additional cases accumulated, the parties entered into another settlement agreement in April 2016,

whereby the City would dismiss all but one pending case and in exchange Bowman would plead

guilty to a violation of City Ordinance 1210.03. The one case left out of the settlement agreement

was pending in the Cuyahoga County Court of Common Pleas (“the Common Pleas Case”), the

resolution of which now underlies Bowman’s Takings Clause claim.

       Common Pleas Case and Auction. The Common Pleas Case started on November 4,

2014, when the City filed a Verified Petition for Injunctive Relief against Bowman for open

dumping and storage of inappropriate materials on the Property. On May 28, 2015, the parties

executed an Agreed Judgment Entry (the “AJE”) whereby Bowman agreed to remove specific

materials and items from the Property within a specified timeline. If Bowman failed to satisfy his

obligations, the AJE permitted the City to enter the Property and remove the items, as well as to

auction off Bowman’s chattel to pay for the removal. Bowman did not comply with the AJE, so

the court appointed a receiver and ordered the removal and auctioning of items from the Property.

The receiver conducted an auction on March 1, 2016, selling twenty-three inventoried items from

the Property.




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Case Nos. 17-4151/4166, Bowman v. City of Olmsted Falls, et al.


           Attempting to remove the receiver, Bowman filed a motion in the Common Pleas Court.

That court denied the motion, so Bowman appealed to the Eighth Appellate District Court of the

County of Cuyahoga (“Eighth Appellate Court”). There, Bowman argued that “the trial court

abused its discretion by ordering the asset sale,” but the Eighth Appellate Court found that the trial

court had the authority to appoint a receiver and provided sufficient oversight of the asset sale.

Accordingly, the Eighth Appellate Court affirmed the decision of the trial court to “authoriz[e] a

receiver to sell at auction certain chattel owned by Bowman that was the subject of a nuisance

action.”

           District Court Case. Bowman filed suit in the district court on August 19, 2016, naming

the City and McLaughlin as defendants,2 and alleging that they violated his Fifth and Fourteenth

Amendment rights by selectively enforcing laws against him, and taking his property without just

compensation, respectively.3 Following discovery, which included depositions of both Bowman

and McLaughlin, the City filed for summary judgment. The district court granted that motion,

finding that Bowman is collaterally estopped from raising both of his extant claims, that he did not

satisfy “at least” the first element of his selective enforcement claim, and that he had waived his

takings clause claim by entering into the AJE. Bowman now timely appeals that order.

                                         STANDARD OF REVIEW

           We review a district court’s grant of summary judgment de novo. Gillis v. Miller, 845 F.3d

677, 683 (6th Cir. 2017). To succeed on summary judgment, the movant must show she is entitled

to judgment as a matter of law by “identifying those portions of ‘the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it



2
    Bowman named two other defendants that were dismissed prior to entry of the summary judgment order.
3
 Bowman also asserted a breach of fiduciary duty claim that was dismissed prior to the entry of the summary judgment
order.

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Case Nos. 17-4151/4166, Bowman v. City of Olmsted Falls, et al.


believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). To avoid entry of judgment, the

nonmovant “must set forth specific facts showing that there is a genuine issue for trial.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (emphasis added). “The mere existence of some

alleged factual dispute between the parties will not defeat an otherwise properly supported motion

for summary judgment; the requirement is that there be no genuine issue of material fact.” Id. at

247–48 (emphases in original).

                                            ANALYSIS

                                                  I.

        We address first the district court’s finding that Bowman failed to offer proof creating a

genuine issue as to “at least” the first element of his selective enforcement claim. We agree with

the district court.

        A selective enforcement claim—which arises under the Equal Protection clause of the

Fourteenth Amendment—prohibits government actors from selectively enforcing the laws with

discriminatory purpose and effect. Gardenhire v. Schubert, 205 F.3d 303, 318 (6th Cir. 2000). It

carries the following three elements:

        First, an official must single out a person belonging to an identifiable group, such
        as those of a particular race or religion, or a group exercising constitutional rights,
        for prosecution even though he has decided not to prosecute persons not belonging
        to that group in similar situations. Second, the official must initiate the prosecution
        with a discriminatory purpose. Finally, the prosecution must have a discriminatory
        effect on the group which the defendant belongs to.

Id. at 319 (quoting United States v. Anderson, 923 F.2d 450, 453 (6th Cir.1991)) (brackets

removed). Bowman failed to introduce any proof in response to Defendants’ motion for summary

judgment that created a genuine issue as to at least the first element.




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Case Nos. 17-4151/4166, Bowman v. City of Olmsted Falls, et al.


        To establish the first element, “it is an absolute requirement that the plaintiff make at least

a prima facie showing that similarly situated persons outside her category were not prosecuted.”

Gardenhire, 205 F.3d at 319 (quoting Stemler v. City of Florence, 126 F.3d 856, 873 (6th

Cir.1997)). Bowman, who is a white male, alleged in his complaint that he was treated differently

than eight other property owners; however, Bowman admitted in his deposition that each of those

different property owners are also white males or white couples. There is no proof that any

similarly situated persons “outside [Bowman’s] category” were not prosecuted. Accordingly,

Bowman has not satisfied the first element of his claim.

        In response to these facts, Bowman argues that he composes a “class of one” for purposes

of equal protection, pursuant to Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). In Olech,

the Supreme Court found that a plaintiff pled a claim for selective enforcement—although that

plaintiff did not allege membership in a class or group—because the village’s demands of her as

an individual were “irrational and wholly arbitrary.” Olech, 528 U.S. at 565 (creating “class of

one” designation for equal protection claims). Bowman, though, does not qualify as a “class of

one.”

        In a “class of one” case, the plaintiff must demonstrate that 1) there is no rational basis for

her treatment and 2) that she has been intentionally treated differently from others similarly

situated. See Ass’n of Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545, 549 (6th

Cir. 2007) (quoting Olech, 528 U.S. at 564). Bowman has done neither. First, Defendants’ actions

cannot be characterized as “irrational and wholly arbitrary,” especially by Bowman, who entered

a guilty plea and admitted to having violated a city zoning ordinance (in exchange, the City

dropped several other pending cases against Bowman that may have resulted in convictions).

Second, Bowman has not provided any proof of discriminatory intent. During his deposition, he



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Case Nos. 17-4151/4166, Bowman v. City of Olmsted Falls, et al.


admitted that he had no evidence of discriminatory intent, and that the theories he proffered in the

lawsuit amounted to “speculation on [his] part.” “To survive a summary judgment motion, a

plaintiff must put forward more than speculations or intuitions.” Frazier v. USF Holland, Inc.,

250 F. App’x 142, 148 (6th Cir. 2007) (citing Mulhall v. Ashcroft, 287 F.3d 543, 551 (6th Cir.

2002)). Bowman has only put forward speculation and intuition as his purported proof of

McLaughlin and the City’s purpose. For this reason, he fails to demonstrate not only a “class of

one” designation, but also the second element of his selective enforcement claim (discriminatory

purpose). His claim for selective enforcement does not survive summary judgment.

                                                II.

       We now turn to the district court’s order collaterally estopping Bowman from pursuing his

Takings Clause claim. Under the doctrine of collateral estoppel (or issue preclusion), a party is

“precluded from relitigating facts resolved adversely to them in a prior equitable proceeding.”

Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979). Here, we apply Ohio’s collateral

estoppel law because that is where the prior judgment was entered. See Migra v. Warren City Sch.

Dist. Bd. of Educ., 465 U.S. 75, 81 (1984) (“a federal court must give to a state-court judgment the

same preclusive effect as would be given that judgment under the law of the State in which the

judgment was rendered.”). In Ohio, the party asserting collateral estoppel must demonstrate the

following elements:

       (1) The party against whom estoppel is sought was a party or in privity with a party
       to the prior action;
       (2) There was a final judgment on the merits in the previous case after a full and
       fair opportunity to litigate the issue;
       (3) The issue must have been admitted or actually tried and decided and must be
       necessary to the final judgment; and
       (4) The issue must have been identical to the issue involved in the prior suit.



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Case Nos. 17-4151/4166, Bowman v. City of Olmsted Falls, et al.


Monahan v. Eagle Picher Indus., Inc., 21 Ohio App. 3d 179, 180–81 (Ohio Ct. App. 1984). When

a party successfully demonstrates these elements, their adversary is precluded from litigating the

previously-decided issue (e.g., the adversary is “collaterally estopped” from requesting a different

ruling on those issues in the subsequent forum).

       The district court ruled that Bowman is collaterally estopped from raising his Takings

Clause claim because he asserted and lost on the same underlying issues when he requested the

receiver be removed. We agree.

       As an initial matter, the parties disagree about the extent of Bowman’s Takings Clause

claim(s): Bowman contends that he made two claims, one for the improper sale of his chattel (a

physical taking) and one for the decrease in the value of his real property (a regulatory taking);

whereas the City argues that Bowman is confined to the alleged regulatory taking claim. The City

is correct. In his complaint, Bowman alleges that he “has been damaged by the failure [of the

City] to pay just compensation for the loss of his chattel.” (emphasis added). He only references

property values in two other paragraphs, each of which is directed towards the chattel sold from

his lot—not his real property. If Bowman intended to make a regulatory taking claim for an alleged

loss of value to his real property, he would have had to file a motion to amend pursuant to Fed. R.

Civ. P. 15(a). He did not. Because permitting Bowman to assert a new claim at the summary

judgment stage “would subject defendants to unfair surprise,” Tucker v. Union of Needletrades,

Indus. & Textile Employees, 407 F.3d 784, 788 (6th Cir. 2005), he is limited to the physical takings

claim he alleged in his pleadings.

       Accordingly, the collateral estoppel question before this court is as follows: Did the City

obtain a final judgment against Bowman wherein a court of competent jurisdiction necessarily and

actually decided that the auction of Bowman’s property was permissible? The answer is yes.



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Case Nos. 17-4151/4166, Bowman v. City of Olmsted Falls, et al.


        First, the issues between the two cases are identical. As the district court correctly noted,

the gravamen of Bowman’s current claim is that the receiver exceeded his authority in various

ways, causing his chattel to fetch less than its real value at auction. Identically, in the previous

litigation against the City, Bowman requested removal of the receiver because, according to

Bowman, the receiver’s “administration of the receivership property plainly has resulted and

continues to result in waste contrary to the Court’s mandate that the best possible price be obtained

for such chattel.”

        Second, the court issued a final judgment: the trial court denied Bowman’s motion and the

appellate court affirmed the trial court’s order (there is no indication that any further appeals are

permissible or pending).

        Third, the relevant issues were essential to the final judgment as Bowman’s request relied

solely on adjudication of the receiver’s authority and the court’s supervision of the auction.

Indeed, the appellate court affirmed the trial court’s decision after concluding that the receiver had

acted within his authority and that the “trial court properly supervise[d] the receiver and provide[d]

oversight for the sale.”

        Bowman had his day in court on these questions. See Goodson, 2 Ohio St.3d at 200–01

(“The main legal thread which runs throughout the determination of the applicability of res

judicata . . . is the necessity of a fair opportunity to fully litigate and to be ‘heard’ in the due process

sense.”). The district court properly found that Bowman is collaterally estopped from asserting

his Takings Clause claim.

                                         ATTORNEY’S FEES

        After the district court entered judgment in Defendants’ favor, Defendants filed a motion

for attorney’s fees and costs pursuant to 42 U.S.C. § 1988 and Fed. R. Civ. P. 54. The district



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Case Nos. 17-4151/4166, Bowman v. City of Olmsted Falls, et al.


court denied the motion, entering a text order with only the following sentence: “The Court cannot

say that the action was frivolous, unreasonable, or without foundation.” Defendants now appeal

that order. Because the district court provided insufficient analysis from which we can evaluate

whether the order was an abuse of discretion, Hensley v. Eckerhart, 461 U.S. 424, 452 (1983)

(applying abuse of discretion standard to denial of attorney’s fees under § 1988), we remand for a

cost and fees analysis consistent with this order. See Fisher v. City of Detroit, 4 F.3d 993 (6th Cir.

1993) (remanding, in part, because the district court provided “no analysis”).

                                          CONCLUSION

       For the reasons set forth above, we AFFIRM IN PART, REVERSE IN PART, and

REMAND for a cost and fees analysis consistent with this order.




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