                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0147n.06

                                                 No. 10-3516                                           FILED
                                                                                                  Feb 07, 2012
                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT                                  LEONARD GREEN, Clerk

SANDRA FARINACCI, et al.,                                  )
                                                           )        ON APPEAL FROM THE UNITED
        Plaintiffs-Appellants,                             )        STATES DISTRICT COURT FOR
                                                           )        THE NORTHERN DISTRICT OF
v.                                                         )        OHIO
                                                           )
CITY OF GARFIELD HEIGHTS, et al.,                          )                      OPINION
                                                           )
        Defendants-Appellees.                              )



BEFORE:          McKEAGUE, and WHITE, Circuit Judges; BARRETT, District Judge.*

        BARRETT, District Judge. Mother and daughter Sandra and Kim Farinacci brought

constitutional claims under 42 U.S.C. § 1983 against the City of Garfield Heights and six of its

employees. The Farninaccis also brought state law claims for trespass, invasion of privacy and

intentional infliction of emotional distress. The Farinaccis’ claims stem from the warrantless entry

into Sandra Farinacci’s home to remove a number of cats who were living there. The Farinaccis’

claims are also based on a letter written by the City’s building commissioner which states that the

Farinacci home was vacant and abandoned. The Farinaccis appeal the district court’s conclusion that

the City employees are entitled to qualified immunity on the constitutional claims and statutory

immunity on the tort claims. The Farinaccis also appeal the dismissal of their Monell claims against

the City. For the reasons set forth below, we AFFIRM the district court.



        *
          Honorable Michael R. Barrett, United States District Judge for the Southern District of Ohio, sitting by
designation.
                                            No. 10-3516

                                    STATEMENT OF FACTS

       Sandra Farinacci lived in her home on Mountview Avenue in Garfield Heights, Ohio for

thirty-seven years. (R. 59-1, at 1.) In January of 2006, Sandra fell into default on her mortgage on

the property. (R. 51-4, at 2.) Foreclosure proceedings began in December of 2006. (R. 51-5.) On

February 21, 2007, Sandra was forced to leave her home due to poverty and illness. (R. 59-1, at 3.)

Sandra left behind almost all of her personal belongings, including a number of cats. (R. 59-1, at

1.) Sandra’s daughter, Kim Farinacci, has not lived in the home since June of 2006, but would return

to the home to care for the cats. (R. 51-2; 59-1, at 1.)

       In April of 2007, Rayfield James, Jr., an employee of James Secure, Inc., contacted the City

Service Director, Tim McLaughlin, and asked him to remove the cats from the Farinacci home. (R.

59-1. at 7.) James Secure was hired by Fidelity National Field Services, Inc. (“Fidelity”) to perform

property preservation services. (Doc. 51-6.) Fidelity, in turn, was under a contract with Select

Portfolio Servicing, Inc. (“SPS”), who was the servicing agent for the Bank of New York (“Bank”),

who was the mortgage holder on the Farinacci home. The mortgage provides:

       Borrower shall not destroy, damage or impair the Property, allow the Property to
       deteriorate, or commit waste on the Property . . . If Borrower fails to perform the
       covenants and agreements contained in this Security Instrument, or there is a legal
       proceeding that may significantly affect Lender’s rights in the Property (such as a
       proceeding in bankruptcy, probate, for condemnation or forfeiture or to enforce laws
       or regulations), then Lender may do and pay for whatever is necessary to protect the
       value of the Property and Lender’s rights in the Property. Lender’s actions may
       include paying any sums secured by a lien which has priority over this Security
       Instrument, appearing in court, paying reasonable attorneys’ fees and entering on the
       property to make repairs.

(Doc. 51-4, at 11.)



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                                            No. 10-3516

       McLaughlin notified John Becony, the City Foreman, about the situation at the Farinacci

home. (R. 38, at 4.) Becony subsequently informed Brad Buntura, the City Animal Warden. (Id.)

Becony and Mike Kristof, the current Animal Warden, went to the Farinacci home to assess the

situation. It is undisputed that no one from the City contacted the Farinaccis or the Bank to verify

James’ authority. (R. 59-1, at 9.) It is also undisputed that the Farinaccis never directly gave

permission to the City to enter the home. (R. 59-1, at 2, 4.)

       On April 5, 2007, Buntura and John Berdysz, a service department employee, entered the

Farinacci home and placed cat traps inside the house. (R. 59-1, at 15-16, 60-61.) Later that same

day, Kim Farinacci went into the house, freed the cats caught in the traps, and removed the traps

from the house. (R. 59-1, at 4.) On April 6, 2007, Buntura returned to the house to check the traps,

but discovered that they were missing. (Id. at 20, 26.) Buntura reported the missing traps to the

police, who filed a theft incident report. (R. 59-1, at 25-26.)

       On the same day, William Wervey wrote a letter to the Cuyahoga County Common Pleas

Court which stated that the Farinacci home was vacant and abandoned:

       As the Building Commissioner of the City of Garfield Heights, I am familiar with the
       property located at 10520 Mountview . . . It is my opinion that this property is vacant
       and abandoned and is having a negative impact on the surrounding neighborhood.

(R. 59-1, at 41.) The Farinaccis claim that this letter circumvented the City’s ordinance which

requires the Building Department to post a notice of vacancy and give the property owner thirty days

to respond. (See R. 59-2.)

       The Farinaccis brought a section 1983 claim against the City and Wervey for a violation of

the right to procedural due process; a section 1983 claim against the City, Becony, Buntura, Kristof,


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McLaughlin, and Berdysz for a violation of the right to be free from unreasonable searches and

seizures under the Fourth Amendment; and claims against all defendants for trespass, invasion of

privacy, intentional infliction of emotional distress under Ohio law. The City and the individual

defendants filed a motion for summary judgment on all claims, which the district court granted in

its entirety. This appeal followed.

                                           DISCUSSION

I.     Standard of Review

       “We review a district court’s grant of summary judgment de novo.” Alspaugh v. McConnell,

643 F.3d 162, 168 (6th Cir. 2011). Summary judgment is appropriate where “the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law.” Fed.R.Civ.P. 56(a).

II.    Qualified immunity

       The district court determined that the individual City employees were entitled to qualified

immunity from the Farinaccis’ claims brought pursuant to 42 U.S.C. § 1983. “A defendant is

entitled to qualified immunity on summary judgment unless the evidence, viewed in the light most

favorable to the plaintiff, ‘would permit a reasonable juror to find that (1) the defendant violated a

constitutional right; and (2) the right was clearly established.’” Coble v. City of White House, Tenn.,

634 F.3d 865, 870 (6th Cir. 2011) (quoting Aldini v. Johnson, 609 F.3d 858, 863 (6th Cir. 2010)).

Courts may “exercise their sound discretion in deciding which of the two prongs of the qualified

immunity analysis should be addressed first in light of the circumstances in the particular case at

hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).


                                                 -4-
                                           No. 10-3516

       The district court concluded that under the first prong of the analysis, no Fourth Amendment

violation occurred because the City employees had third-party consent to enter the Farinacci home.

Farinacci v. City of Garfield Heights, 2010 WL 1268068, *11 (N.D. Ohio Mar. 30, 2010). The

district court also concluded that no procedural due process violation occurred based on Wervey’s

failure to follow the City’s ordinance. Id. at *8. Because the district court determined that there

were no constitutional violations, it did not address whether the constitutional rights at issue were

“clearly established.” Id. at *8, 11.

       A.      Fourth Amendment

       Under the Fourth Amendment, “[a]n officer with consent needs neither a warrant nor

probable cause to conduct a constitutional search.” United States v. Jenkins, 92 F.3d 430, 436 (6th

Cir. 1996) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)). Valid consent may be

provided by “a third party who possessed common authority over or other sufficient relationship to

the premises or effects sought to be inspected.” U.S. v. McCauley, 548 F.3d 440, 446 (6th Cir.

2008) (quoting United States v. Matlock, 415 U.S. 164, 171 (1974)).

       As the district court properly explained, the issue in this case is “whether James Secure, Inc.

had authorization to give third-party consent and did properly give such consent to the individual

Defendants.” 2010 WL 1268068, at *9. The district court noted that:

       On this point, there is no dispute that Plaintiffs had no contract with either property
       preservation company—Fidelity National Field Services, Inc. or James Secure, Inc.
       The only contractual relationship was through Sandra Farinacci’s mortgage with the
       bank and with SPS as the bank’s servicing agent. Plaintiffs do not dispute the
       validity of the property preservation provisions in the mortgage, nor disagree that
       those provisions authorize the bank and SPS to enter the premises and do “whatever
       is necessary to protect the value of the property” under the circumstances identified.


                                                 -5-
                                             No. 10-3516

Id. Instead, the Farinaccis argued that while the Bank or SPS could enter the property and authorize

its agents to do so, no one else, including Fidelity or James Secure, had the authority to give third-

party consent for entry. Id. However, the district court rejected this argument and found that the

Bank and SPS delegated their authority to Fidelity and James Secure for the purpose of carrying out

their property preservation duties. Id. at 11. Accordingly, the district court concluded that James

Secure “had common authority over the house and a sufficient relationship to the premises” to give

valid third-party consent to the City to enter the house. Id.

        On appeal, the Farinaccis argue that even if James Secure, through the Bank, had certain

rights under property or contract law, these rights must be distinguished from the authority to give

consent to government officials to enter the premises owned or occupied by another.1

        The Farinaccis are correct that common authority is “not to be implied from the mere

property interest a third party has in the property.” Matlock, 415 U.S. at 172 n.7. As the Supreme

Court has explained: “The authority which justifies the third-party consent does not rest upon the

law of property with its attendant historical and legal refinements.” Id. Instead, common authority

has been found to exist where there is “mutual use of the property by persons generally having joint

access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants

has the right to permit the inspection in his own right and that the others have assumed the risk that

one of their number might permit the common area to be searched.” Id.



        1
         There is some dispute between the parties as to whether the Farinaccis made this specific
argument before the district court. However, we note that regardless of how the argument was
articulated, the district court relied on the same cases identified by the Farinaccis in support of their
argument.

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                                           No. 10-3516

       In refining this principle, the Supreme Court has explained that “[t]he constant element in

assessing Fourth Amendment reasonableness in the consent cases . . . is the great significance given

to widely shared social expectations, which are naturally enough influenced by the law of property,

but not controlled by its rules.” Georgia v. Randolph, 547 U.S. 103, 111 (2006). To illustrate, the

Supreme Court explained that:

       A person on the scene who identifies himself, say, as a landlord or a hotel manager
       calls up no customary understanding of authority to admit guests without the consent
       of the current occupant. See Chapman v. United States, [365 U.S. 610 (1961)]
       (landlord); Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964)
       (hotel manager). A tenant in the ordinary course does not take rented premises
       subject to any formal or informal agreement that the landlord may let visitors into the
       dwelling, Chapman, supra, at 617, 81 S.Ct. 776, and a hotel guest customarily has
       no reason to expect the manager to allow anyone but his own employees into his
       room, see Stoner, supra, at 489, 84 S.Ct. 889; see also United States v. Jeffers, 342
       U.S. 48, 51, 72 S.Ct. 93, 96 L.Ed. 59 (1951) (hotel staff had access to room for
       purposes of cleaning and maintenance, but no authority to admit police).

Id. at 112. The Supreme Court summarized: “In these circumstances, neither state-law property

rights, nor common contractual arrangements, nor any other source points to a common

understanding of authority to admit third parties generally without the consent of a person occupying

the premises.” Id.

       In contrast, James had authority to admit third parties based on the mortgage document itself,

which provided in broad terms that the Bank, as the Lender “may do and pay for whatever is

necessary to protect the value of the Property and Lender's rights in the Property.” The mortgage

even specifies that the Bank’s actions in this regard may include “entering on the property to make

repairs.” As the district court recognized: “When Sandra Farinacci signed her mortgage, which

included the property preservation provisions, she expressly assumed the risk that, if it became


                                                 -7-
                                            No. 10-3516

necessary to preserve the property, the bank might permit its agents and others to enter the house to

effectuate that purpose.” 2010 WL 1268068, at *10. Therefore, the district court did not err in

concluding that James had common authority over the Farinacci home and a sufficient relationship

to the premises to give third-party consent to the City employees to enter the house.

       B.      Procedural due process

       The Farinaccis argue that in finding that there was no procedural due process violation, the

district court incorrectly characterized Wervey’s letter as merely stating his opinion. The Farinaccis

also argue that the district court should have found a causal connection between Wervey’s letter and

the warrantless entry into the Farinacci home.

       The district court concluded that Wervey was not acting pursuant to Chapter 1371 of the

Building Code, which is the City ordinance identified by the Farinaccis. The district court explained:

       Wervey sent a letter to the Common Pleas Court which was adjudicating Sandra
       Farinacci’s property foreclosure, advising the Court that he believed the Mountview
       property was vacant and asking that the foreclosure proceedings relating to the
       property be expedited. Plaintiffs do not dispute that this letter was written in
       response to a request from the Common Pleas Court, asking municipalities to identify
       vacant properties in their environs so that the foreclosure proceedings as to those
       properties might be “fast-tracked” (Doc. 62–1 at 5). Plaintiffs also do not dispute
       that Wervey’s letter followed the form suggested by the Common Pleas Court, which
       asked for an opinion as to the vacant status of properties in foreclosure, not for a
       formal or official declaration thereof. Finally, Plaintiffs do not dispute and the record
       is clear that, upon receipt of letters like the Wervey letter, the Common Pleas Court
       employed a procedure by which it notified the property owners of the fact that their
       properties were being treated as vacant ones, and giving the property owners the
       opportunity to object to that designation (Doc. 62–1 at 5)—the very notice and
       opportunity Sandra Farinacci claims to have been entitled under Chapter 1371. There
       simply is no support in the record, accordingly, for Sandra Farinacci’s assertion that
       Wervey’s letter constituted a legally binding declaration of her rights.




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                                            No. 10-3516

2010 WL 1268068, at *8. The district court also found that there was no causal connection between

Wervey’s letter and the claimed constitutional deprivation because the City entered the property

before the letter was even sent. Id. Moreover, as the district court noted, the City employees did not

rely on the letter for entry into the Farinacci home, but instead were acting at the request of James.

Id. We find no error in this logic, and conclude that there was no procedural due process violation

based upon Wervey’s letter.

       C.      Monell claims against the City

       The district court found that the City was entitled to summary judgment on the Farinaccis’

claims under Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978) because there were no

constitutional violations. We have previously held that the absence of a constitutional violation by

the individual defendants compels the grant of summary judgment with respect to a plaintiff’s

Monell claim based on the same conduct. Meals v. City of Memphis, Tenn., 493 F.3d 720, 731 (6th

Cir. 2007) (citing City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)). Therefore, the district

court did not err in granting summary judgment on the claims against the City.

       D.      Statutory immunity

       The district court concluded that the City employees were entitled to statutory immunity from

the Farinaccis’ state law claims. Pursuant to Ohio Revised Code § 2744.03(A)(6), employees of a

political subdivision are entitled to immunity unless the employee’s actions “were with malicious

purpose, in bad faith, or in a wanton or reckless manner.” The district court found that the individual

City employees did not act recklessly and the state law tort claims lacked merit regardless of

statutory immunity.


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                                              No. 10-3516

         On appeal, the Farinaccis argue that the question of whether the individual employees’

conduct was reckless is a jury question. The district court recognized that the issue of recklessness

is generally a jury question. 2010 WL 1268068, at *12. However, the district court also recognized

that “[w]here the evidence in the record does not suggest a material factual issue on the question of

reckless or willful or wanton misconduct, [it] is perfectly proper to determine the case by means of

summary judgment.” Id. (quoting Garrison v. Bobbitt, 731 N.E.2d 216, 225 (Ohio Ct. App. 1999)).

After reviewing the record in great detail, the district court concluded that there was no evidence that

the City employees acted recklessly.

         The Farinaccis complain that the district court unfairly required them to show recklessness

in the form of an unreasonable risk of physical harm. However, in interpreting Ohio Revised Code

§ 2744.03(A)(6), Ohio courts have held that an employee of a political subdivision is immune from

liability unless there is reckless conduct which “creates an unreasonable risk of physical harm to

another.” Moss v. Lorain Cty. Bd. of Mental Retardation, 924 N.E.2d 401, 408 (Ohio Ct. App. 2009)

(quoting Thompson v. McNeill, 559 N.E.2d 705 (Ohio 1990)); see also Hunter v. Columbus, 746

N.E.2d 246, 252 (Ohio Ct. App. 2000); Thompson v. Smith, 899 N.E.2d 1040, 1051 (Ohio Ct. App.

2008).

         The Farinaccis also find fault with the district court’s finding that the failure on the part of

the City employees to verify James’ authority was merely “sloppy,” as opposed to reckless. The

Farinaccis argue that this is an issue for the jury to decide. However, as the district court pointed out,

James did in fact have proper third-party consent to enter the house, and any attempt to verify his




                                                  -10-
                                           No. 10-3516

authority would have merely delayed his entry, not prevented it. Therefore, the failure to confirm

his authority cannot be deemed reckless.

       Construing the evidence and all reasonable inferences therefrom in the light most favorable

to the Farinaccis, we conclude that summary judgment was proper on their state law claims.

                                        CONCLUSION

       For the foregoing reasons, we AFFIRM the decision of the district court.




                                              -11-
                                           No. 10-3516



HELENE N. WHITE, Circuit Judge, concurring.



       I agree that plaintiffs made no showing that Wervey’s letter had any connection to the

allegedly wrongful entry into the home. Nor have plaintiffs shown that the City of Garfield Heights

has a policy or custom of entering homes in violation of Fourth Amendment rights of homeowners.

       I concur as to the remaining defendants on the narrow basis that the individual defendants

are entitled to qualified immunity where they acted pursuant to the request of the authorized

property-protection company after viewing the property and confirming that the property appeared

vacant and in the process of being damaged by abandoned cats.

       For the same reasons, the district court correctly determined that the defendants did not act

recklessly.




                                               -12-
