                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 10a0483n.06

                                        Nos. 08-4225/4226                                 FILED
                                                                                      Aug 06, 2010
                            UNITED STATES COURT OF APPEALS                      LEONARD GREEN, Clerk
                                 FOR THE SIXTH CIRCUIT

JEANETTE SPANGLER, ET AL.,                              )
                                                        )
          Plaintiffs-Appellees,                         )
                                                        )   ON APPEAL FROM THE
v.                                                      )   UNITED STATES DISTRICT
                                                        )   COURT FOR THE SOUTHERN
DWAYNE WENNINGER, ET AL.,                               )   DISTRICT OF OHIO
                                                        )
          Defendants-Appellants.                        )



Before:          KEITH, COLE, and GIBBONS, Circuit Judges.


          KEITH, Circuit Judge. Defendants-Appellants Dwayne Wenninger (“Wenninger”) and

Albert J. Rodenberg, Jr., (“Rodenberg”) (collectively “Defendants”) appeal the district court’s denial

of their motions for summary judgment. They argue that they are entitled to immunity from

Plaintiffs-Appellees’ federal and state law claims against them as a matter of law. Plaintiffs-

Appellees Jeanette Spangler (“Spangler”) and Jerrod Messer (“Messer”) (collectively “Plaintiffs”)

sued Defendants pursuant to 42 U.S.C. § 1983 for violating their Fourth Amendment rights. During

the course of a search of Plaintiffs’ real property, Plaintiffs’ personal property was damaged at

Defendants’ authorization. For the reasons discussed below, we AFFIRM the district court’s denial

of Defendants’ motions for summary judgment.
No. 08-4226
Jeanette Spangler, et al. v. Dwayne Wenninger, et al.

                                       I. BACKGROUND

A.     Facts

       In 1997, Vincent Doan (“Doan”) was convicted of the kidnapping and aggravated murder of

Carrie Culberson. The Clinton County Sheriff’s Office conducted the investigation and arrested

Doan. Culberson’s body was never found. In early 2004, deputies of Ohio’s Clermont County

Sheriff’s Office received tips from reliable informants concerning the whereabouts of Culberson’s

body. The informants told the deputies that Culberson’s body could be found near or under the

garage on Spangler’s real property at 21962 Fayetteville-Blanchester, which is located in Brown

County, Ohio. Spangler’s son, Messer, lived in and operated a business on the property until his

imprisonment for unrelated charges in 2003. Messer stored supplies, tools, and equipment for his

roofing and construction business in the garage. He also stored vehicles there. At the time of the

search, Spangler did not live on the property and had rented the property to tenants.

       On April 27, 2004, Clermont County Deputy Mark Penn (“Penn”) met with officers from the

Sheriff’s Office in Brown County, including Captain Barry Creighton (“Creighton”), Chief Deputy

John Dunn, and Sergeant John Schadle. After Penn informed them of the facts of the investigation,

they assisted him in preparing a search warrant. Penn and Creighton subsequently obtained a search

warrant from Brown County Judge Thomas Zachman. The search warrant stated, in relevant part:

       WHEREAS there has been filed with me an Affidavit, copy of which is attached
       hereto and incorporated herein, in the County aforesaid, and they are hereby
       commanded to go to the afore described premises . . . and there diligently search for
       a body, body parts, or any human remains, including but not limited to blood, hair,
       skin, bones, or any clothing or other articles relevant to a site where a body has been
       disposed of.


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Jeanette Spangler, et al. v. Dwayne Wenninger, et al.

(R. 72-2, Search Warrant at 1.) After obtaining the search warrant, Penn requested the FBI’s

assistance in executing the search warrant. The FBI agreed to provide assistance, and FBI Special

Agent Stephen Griegher (“Griegher”) was present at the property nearly every day of the search.

       The search began on April 27, 2004. Brown County Sheriff Wenninger was generally in

charge of the search, but Brown County Deputy John Dunn (“Dunn”) was in charge of the search

when Wenninger was not present. Wenninger was on site on six separate occasions and assisted

with digging and operated a Bobcat during his multiple visits to the site. When neither Dunn nor

Wenninger were on the property, Clermont County Sheriff Rodenberg was in charge of the search,

and in his absence, Penn was in charge.

       The search began with the drilling of holes in the concrete floor of the garage. Cadaver dogs

were brought to the search site after the holes were drilled to assist in the search for the missing

body. Officers would dig in those areas where the dogs indicated the possible presence of a cadaver.

On April 29, 2004, Dunn and others removed some of the personal property contained in the garage.

Dunn contacted a tow truck service to move some of the vehicles in the garage to the front of the

property. By May 1, 2004, law enforcement officers had removed the remaining personal property

from the garage.

       After extracting the dirt from the ground, the officers would examine it for human remains.

The dirt would then be moved outside of the garage. By May 3, 2004, there was large hole in the

garage from the digging, and the hole became filled with water after a heavy rain. As the search

progressed, Defendants became concerned about the structural integrity of the garage, and

Wenninger reinforced the frame of the garage, applying his construction knowledge.

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Jeanette Spangler, et al. v. Dwayne Wenninger, et al.

        Defendants soon ran out of space to store the extracted and examined dirt. Defendants then

began piling dirt on top of Plaintiffs’ personal property, including the vehicles, outside of the garage.

Dunn and Wenninger testified that they considered the property left outside the garage to be “junk.”

(R. 77, Dunn Dep. at 211-12; R. 78, Wenninger Dep. at 95.) Dunn testified that the officers knew

that they were damaging the property by piling dirt on it. Plaintiffs argue that an aerial photograph

shows that there was ample room on the two-acre property to move either the personal property or

the extracted dirt to another area to avoid ruining their property. Despite this, other areas of the

property and neighboring properties were not used to place the extracted dirt. Dunn testified that

nothing prohibited Penn from returning to Judge Zachman to request an expansion of the search

warrant to allow for this to happen.

        On May 10, 2004, Dunn and Wenninger decided to end the search because the cadaver dogs

no longer picked up any scents. The search ended on May 11, 2004. The law enforcement officers

did not fill the hole that they dug in the garage, which was as deep as fifteen feet. Wenninger

admitted that he knew that the hole in the garage would likely fill with rain water and groundwater,

but he advised the law enforcement personnel that they were not required to fill it. The hole did

indeed fill with water, creating a pond in Plaintiffs’ garage. The tenants renting the house on the

property moved out of the property near the end of the search because the septic system was

damaged.

B.      Procedural History

        On April 20, 2006, Plaintiffs filed a multi-count complaint against the Brown County Board

of Commissioners (“Brown Board”), Brown County Sheriff Wenninger, the Clermont County Board

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Jeanette Spangler, et al. v. Dwayne Wenninger, et al.

of County Commissioners (“Clermont Board”), and Clermont County Sheriff Rodenberg, alleging

violations of their civil rights and seeking recovery for property damage arising from the execution

of the search warrant. At the close of discovery, all of the defendants moved for summary judgment

on Plaintiffs’ claims on January 6, 2008. Defendants asserted immunity defenses for the claims

being brought against them in their individual capacities. The district court granted summary

judgment in favor of the Clermont Board, the Brown Board, and Wenninger and Rodenberg in their

respective official capacities and on the failure to discipline claim. The district court denied the

motion for summary judgment on the claims brought against Rodenberg and Wenninger in their

individual capacities, finding that “there is a genuine issue of material fact as to the reasonableness

of the destruction of Plaintiffs’ property.” (R. 131, 9/03/2008 Order at 12.)

                                          II. ANALYSIS

       This Court reviews a district court’s grant of summary judgment de novo. See Spencer v.

Bouchard, 449 F.3d 721, 727 (6th Cir. 2006) (citing McQueen v. Beecher Cmty. Sch., 433 F.3d 460,

463 (6th Cir. 2006)). Summary judgment is only appropriate where “the pleadings, the discovery

and disclosure materials on file, and any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c)(2). “In considering a motion for summary judgment, the district court must construe the

evidence and draw all reasonable inferences in favor of the nonmoving party.” See Jones v. Potter,

488 F.3d 397, 402-03 (6th Cir. 2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986)).



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No. 08-4226
Jeanette Spangler, et al. v. Dwayne Wenninger, et al.

A.     Qualified Immunity for Fourth Amendment Claims

       Plaintiffs brought a 42 U.S.C. § 1983 lawsuit, alleging that Defendants had violated their

Fourth Amendment right to be free from unreasonable searches and seizures. Section 1983 prohibits

violations of citizens’ constitutional rights by state officials. See 42 U.S.C. § 1983. Defendants

argue that they are entitled to qualified immunity on this claim, which has been brought against them

in their individual capacities.    Qualified immunity shields government officials performing

discretionary functions from “‘liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person would have

known.’” Feathers v. Aey, 319 F.3d 843, 847 (6th Cir. 2003) (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982)). Qualified immunity does not serve merely as a defense against liability to

be asserted during litigation. See Saucier v. Katz, 533 U.S. 194, 200-01 (2001). Rather, it offers “an

entitlement not to stand trial or face the other burdens of litigation.” Mitchell v. Forsyth, 472 U.S.

511, 526 (1985).

       A defendant enjoys qualified immunity on summary judgment unless the facts alleged and

the evidence produced, when 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. See Jones v. City of Cincinnati, 521 F.3d 555, 559 (6th Cir. 2008) (citing

Saucier, 533 U.S. at 201). A right is “clearly established” if “[t]he contours of the right [are]

sufficiently clear that a reasonable official would understand that what he is doing violates that

right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). Thus, the relevant inquiry is “whether it



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would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”

Saucier, 533 U.S. at 202.

        The first question is whether Plaintiffs’ constitutional rights were violated. The Fourth

Amendment secures “[t]he right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures . . .” by federal government officials. U.S. Const.

amend. IV. The Fourteenth Amendment extends this constitutional guarantee to searches and

seizures by state officers. See Elkins v. United States, 364 U.S. 206, 213 (1960).

        Plaintiffs’ claims are premised on Defendants’ seizure of their personal property and garage,

which affected their possessory interests in said property. A seizure occurs where “there is some

meaningful interference with an individual’s possessory interests in that property.” Soldal v. Cook

County, 506 U.S. 56, 61 (1992) (quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)). The

destruction of property is a “meaningful interference” with personal property and constitutes a

seizure within the meaning of the Fourth Amendment. Jacobsen, 466 U.S. at 124-25. The manner

in which the seizure is conducted is reviewed for “reasonableness, and in a § 1983 action the District

Court must determine not whether the destruction was ‘reasonably necessary to effectively execute

the search warrant’ but whether the plaintiff has raised factual issues to be submitted to a jury on this

point.” Hill v. McIntyre, 884 F.2d 271, 278 (6th Cir. 1989) (quoting Tarpley v. Greene, 684 F.2d

1, 9 (D.C. Cir. 1982)).

        Photographs of the property following the search show that the property was left in complete

disarray with piles of dirt placed all over Plaintiffs’ vehicles and property. While Defendants claim

that they had no choice but to pile dirt on Plaintiffs’ personal property, there was evidence that there

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Jeanette Spangler, et al. v. Dwayne Wenninger, et al.

were other areas of the property where the dirt or personal property could have been placed.

Defendants could have sought to expand the search warrant to allow for the placement of the

extracted dirt in these other areas, but they did not. They have failed to identify any exigent

circumstances that explain their failure to do so although Plaintiffs’ two-acre property could have

easily accommodated this. Wenninger was at the site on several occasions, operating a Bobcat and

piling dirt on Plaintiffs’ property. The officers were aware that doing this would damage Plaintiffs’

property. Additionally, Defendants failed to fill the hole that they dug during the search, leaving a

hole that was up to fifteen feet deep in the garage that became filled with water. Defendants fail to

explain why they did not fill the hole, and merely argue that they believed that they were not required

to do so. However, Wenninger testified that the officers were aware that the hole could become

filled with water upon conclusion of the search. The totality of the circumstances did not warrant

the knowing destruction of Plaintiffs’ personal property by unnecessarily piling dirt on it, and failing

to fill the large hole that remained in the garage. Viewing the evidence in the light most favorable

to the nonmoving parties in this case, Plaintiffs, we find that genuine issues of material fact remain

concerning the reasonableness of Defendants’ conduct here.

        We next consider whether the constitutional right against the unreasonable destruction of

personal property was clearly established. “In inquiring whether a constitutional right is clearly

established, [a district court] must look first to the decisions of the Supreme Court, then to decisions

of [the Sixth Circuit] and other courts within the circuit, and finally to decisions of other circuits.”

Champion v. Outlook Nashville, Inc., 380 F.3d 893, 902 (6th Cir. 2004). The Supreme Court

established that the unreasonable destruction of property may be a meaningful interference with

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Jeanette Spangler, et al. v. Dwayne Wenninger, et al.

personal property constituting an unconstitutional seizure under the Fourth Amendment in 1984.

See Jacobsen, 466 U.S. at 113 (1984); see also Soldal, 506 U.S. at 61 (1992); Thomas v. Cohen, 304

F.3d 563, 571 (6th Cir. 2002). Accordingly, this constitutional right was clearly established.

         Nonetheless, liability under § 1983 cannot be based on the doctrine of respondeat superior.

See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (citing Hays v. Jefferson County, 668 F.2d

869, 874 (6th Cir. 1982)). For supervisory liability to attach, the officers must have done “more than

play a passive role in the alleged violation or showed mere tacit approval of the goings on.” Bass

v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999). “At a minimum a plaintiff must show that the

[supervising] official at least implicitly authorized, approved, or knowingly acquiesced in the

unconstitutional conduct of the offending officers.” Shehee, 199 F.3d at 300. As the district court

noted:

         Plaintiffs have shown that Sheriff Wenninger directly participated in the search.
         Sheriff Wenninger was on site on six separate occasions and helped with the actual
         digging. Plaintiffs have also shown that Sheriff Rodenberg at least implicitly
         authorized the manner in which the search was conduct[ed]. Sheriff Rodenberg
         testified that he has a ‘general’ awareness of the search, and that on May 5, 2004 he
         spent about ninety minutes at the site to survey the progress.

(R. 131, 9/30/2008 Order at 11-12.) Accordingly, there are genuine issues of material fact

concerning Defendants’ supervisory liability.

B.       Immunity under Ohio Law for State Law Claims

         Defendants next argue that the district court erred by finding that they were not entitled to

immunity for the state law claims against them. The Political Subdivision Tort Liability Act, as

codified in Ohio Revised Code Chapter 2744, requires a three-tiered analysis to determine whether


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Jeanette Spangler, et al. v. Dwayne Wenninger, et al.

immunity is applicable. See Carter v. City of Cleveland, 697 N.E.2d 610, 614 (Ohio 1998). Section

2744.02(A)(1) sets out a general rule that political actors are not liable for damages. See id.; OHIO

REV . CODE ANN . § 2744.01 (B)(1). The second tier of the analysis is whether one of the exceptions

in section 2744.02(B) apply. OHIO REV . CODE ANN . § 2744.02 (B). The third tier of the analysis

is a consideration of the application of Ohio Revised Code § 2744.03. Here, the parties agree on the

first tier of the analysis and disagree concerning the applicability of an exception to the general bar

on liability.

        Plaintiffs argue that Defendants are not entitled to immunity because section 2744.03(A)(6),

an exception to immunity, applies to their claims against Defendants. In relevant part, section

2744.03(A)(6) provides: “the employee is immune from liability unless one of the following applies:

. . . (b) The employee’s acts or omissions were with malicious purpose, in bad faith, or in a wanton

or reckless manner.” OHIO REV . CODE ANN . § 2744.03 (A)(6). As the district court noted, “Sheriff

Wenninger intentionally piled dirt on Plaintiffs’ personal property and drove the ‘Bobcat’ excavator

over the piles of dirt. . . . Sheriff Rodenberg spent about ninety minutes surveying the site [and

whether he] was reckless by failing to prevent the dirt from being piled on the property is [] a

question for the jury.” (R. 131, 9/30/2008 Order at 24.) Given Defendants’ conduct, there is a

question for the jury regarding the applicability of section 2744.03(A)(6). Moreover, this issue is

generally left for the jury. See Fabrey v. McDonald Vill. Police Dept., 639 N.E. 2d 31, 35 (Ohio

1994) (“[The] issue of wanton misconduct is normally a jury question.”).




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Jeanette Spangler, et al. v. Dwayne Wenninger, et al.

                                       III. CONCLUSION

       For the aforementioned reasons, we AFFIRM the district court’s determination that

Defendants are not entitled to immunity as a matter of law on Plaintiffs’ federal or state law claims

against them.




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