                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0656n.06

                                            No. 08-4062

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                       FILED
                                                                                    Sep 23, 2009
FRED DEVER, BOBBIE DEVER,                          )                LEONARD GREEN, Clerk
AMERICAN POWDER COATING AND                        )
MANUFACTURING COMPANY, INC.,                       )
                                                   )
       Plaintiffs-Appellants,                      ) ON APPEAL FROM THE UNITED
                                                   ) STATES DISTRICT COURT FOR THE
v.                                                 ) SOUTHERN DISTRICT OF OHIO
                                                   )
GENE KELLY, Clark County Sheriff;                  )
TERRY REED, DUSTIN CRAMBLETT,                      )
BRADLEY TILLMAN,                                   )
GLENN CLARK,                                       )
                                                   )
       Defendants-Appellees.                       )



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

       JULIA SMITH GIBBONS, Circuit Judge. Plaintiffs-appellants Fred Dever, Bobbie

Dever, and American Powder Coating and Manufacturing Company, Inc. (“APC”) appeal from the

grant of summary judgment in favor of defendants-appellees Sheriff Gene Kelly, Sergeant Terry

Reed, Deputy Dustin Cramblett, Deputy Bradley Tillman (collectively, “Sheriff Defendants”) and

Glenn Clark. The plaintiffs filed this 42 U.S.C. § 1983 action in the United States District Court for

the Southern District of Ohio alleging a violation of their Fourth Amendment right to be free from

unreasonable search and seizure, violation of their Fourteenth Amendment right to procedural and

substantive due process, and state law claims of conversion and trespass. The district court granted

summary judgment for the defendants on all claims. For the reasons that follow, we affirm the
judgment of the district court.

                                                   I.

       This case arises out of a business relationship between the Devers and Clark that dissolved.

The Devers, husband and wife, operated APC from 1992 to 2005. In 2004, the Devers hired Clark

so that he might learn the business and eventually purchase it from them. Negotiations for the sale

of APC began in May of 2005. Although the parties had not yet agreed to the terms of sale, Clark

assumed operation of APC on July 1, 2005. Clark managed the company from July to October of

2005. However, the parties never reached agreement on the details of the sale, and on October 1,

2005, the Devers decided to take control of APC away from Clark. Fred called the sheriff’s office

for assistance in removing Clark, but the deputies declined to intervene absent a court order. Fred

proceeded to change the locks, effectively barring Clark from entering APC. Clark attempted to

return a few times, and on one occasion an APC employee again called the sheriff’s office. The

Devers filed an action for declaratory judgment against Clark in the Court of Common Pleas of Clark

County, Ohio. In response, Clark filed a motion seeking an injunction against the Devers allowing

him to continue to operate the business.

       After an evidentiary hearing, the Court of Common Pleas issued a preliminary injunction

against the Devers. The court found that there was a reasonable probability that Clark would succeed

in enforcing the sale of APC on a theory of promissory estoppel because Clark had operated APC

from July 1 to October 1, 2005; that Clark would suffer irreparable injury to his livelihood and

business reputation if an injunction did not issue; and that the public interest weighed in favor of the

continued operation of APC by Clark. Accordingly, on December 7, 2005, the court issued a


                                                   2
preliminary injunction ordering that:

       1.      [The Devers] are prohibited from interfering with [Clark’s] quiet enjoyment
               of the subject business and real estate;

       2.      [The Devers] provide defendant Glenn Clark with keys to all locks in all
               buildings located on the subject real estate;

       3.      [The Devers] not enter upon the subject real estate until resolution of this
               case unless express consent is given by Glenn Clark;

       4.      [The Devers] cease collection of accounts receivable and turn over to [Clark]
               any money collected on invoices issued after July 1, 2005.

The court denied the Devers’ motions to stay the preliminary injunction and to require Clark to post

a bond. The Devers refused to comply with the preliminary injunction and filed a notice of appeal

on December 12, 2005.

       The following morning at 5:30 a.m., Clark called the Clark County Sheriff’s Office for

assistance enforcing the preliminary injunction. Deputies Reed, Tillman, and Cramblett met Clark

a short distance from APC, and all four men arrived at the business at 6:10 a.m. According to Fred’s

affidavit and deposition testimony, he was already at work inside the building. The deputies knocked

on the shop door, which Fred unlocked and opened. Fred then led the deputies down the hall to his

office. Reed “threw” a copy of the preliminary injunction on Fred’s desk and stated that it gave

possession of APC to Clark. Fred responded that he and his wife, Bobbie, owned APC and that they

had filed a motion for a stay and an appeal, both of which were pending. Fred attempted to show

the deputies court documents to this effect, but the deputies refused to read them. Reed then

threatened to arrest Fred if he did not comply with the court order. Fred called his lawyer, but the

deputies declined to speak with his counsel. Reed testified that he eventually became frustrated with


                                                 3
what he perceived as Fred’s stalling and “probably” told Fred, “get your shit and get out.” According

to Fred, he began to pack up certain items he claimed were his personal property. Clark, however,

disputed that the items belonged to Fred, and the deputies ordered Fred to leave some of the items

behind. Finally, Fred, escorted by Tillman, left the premises in the early morning of December 13,

2005.

        Meanwhile, the Court of Appeals of Ohio set an expedited briefing schedule and issued a stay

of the preliminary injunction on December 22, 2005. The next day, the Devers sought the sheriff’s

help in enforcing the stay, but they assert that the sheriff’s office declined to intervene. Also on

December 23, 2005, Clark filed a bankruptcy petition on behalf of APC, which automatically stayed

the stay issued in the state court litigation. Believing that Clark filed the petition in order to avoid

complying with the stay issued by the state appellate court, the Devers filed a motion to dismiss the

bankruptcy petition, which the bankruptcy court granted. The dismissal of the bankruptcy case lifted

the stay in the Clark County litigation, and the Devers regained control of APC on January 26, 2006.1

However, there was little left of the business by that time.2

        On December 12, 2006, the Devers filed the instant case against Clark and the Sheriff


        1
        Following the dismissal of the bankruptcy case, the Devers filed a civil action against Clark
in the Court of Common Pleas of Delaware County, Ohio, alleging malicious prosecution, abuse of
process, and frivolous conduct based on Clark’s filing of the bankruptcy petition. The Delaware
County court dismissed the complaint for failure to state a claim upon which relief could be granted.
        2
          Because APC was operating at a loss, the Devers soon filed a motion seeking the court’s
permission to cease operation. Clark did not oppose the motion. The trial court granted the motion
and terminated the preliminary injunction on May 26, 2006. The Devers assert in their brief that they
subsequently obtained judgment against Clark in the Clark County litigation, but they have not
provided record evidence of any judgment. In any event, the outcome of the Clark County litigation
is irrelevant to our disposition of the Devers’ constitutional claims.

                                                   4
Defendants alleging a violation of their Fourth Amendment right to be free from unreasonable search

and seizure, violation of their Fourteenth Amendment right to procedural and substantive due

process, and state law claims of conversion and trespass, and seeking actual damages in excess of

$810,764 and punitive damages.        Chief United States Magistrate Judge Michael R. Merz

recommended that the district court grant summary judgment to all defendants, and the district court

adopted the magistrate’s report and recommendation in full. See Dever v. Kelly, 566 F. Supp. 2d

703, 705 (S.D. Ohio 2008). This timely appeal followed.

                                                 II.

       We review de novo the district court’s grant of summary judgment. See Sullivan v. Or. Ford,

Inc., 559 F.3d 594, 594 (6th Cir. 2009). Summary judgment is proper “if 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); Northup Props., Inc. v. Chesapeake Appalachia, L.L.C., 567 F.3d 767, 771 (6th Cir. 2009).

In reviewing the evidence, we must draw all reasonable inferences in favor of the nonmoving party.

Abercrombie & Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc., 280 F.3d 619, 629 (6th Cir. 2002).

                                                 A.

       To establish a claim for relief under 42 U.S.C. § 1983, the Devers must show that (1) the

defendants acted under color of state law and (2) the defendants’ conduct deprived them of rights

secured by federal law. See League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 475 (6th

Cir. 2008). The Sheriff Defendants do not dispute the first element–that they were acting under color

of state law. As for Clark, the Devers allege that Clark’s actions were so entwined with those of the


                                                 5
Sheriff Defendants that Clark–a private individual–acted under color of state law. See Hughes v.

Region VII Area Agency on Aging, 542 F.3d 169, 176 (6th Cir. 2008). Clark, who is representing

himself, has not responded to this allegation. We need not address the question because, as shown

below, the Devers have not established the second element–a violation of their constitutional rights.

                                                 1.

       The Devers first allege that the defendants’ warrantless entry into APC violated their Fourth

Amendment right to be free from unreasonable search. Before we can decide whether a search is

unreasonable, we must determine whether a “search” occurred. A “search” occurred within the

meaning of the Fourth Amendment only if the Devers had a legitimate expectation of privacy in the

APC premises on December 13, 2005. See United States v. Dillard, 438 F.3d 675, 682 (6th Cir.

2006) (quoting Rakas v. Illinois, 439 U.S. 128, 143 (1978)). Factors to consider include (1) the

Devers’ possessory interest in APC; (2) whether the Devers had the right to exclude others from

APC; (3) whether the Devers took normal precautions to maintain their privacy in the premises; (4)

whether the Devers exhibited a subjective expectation that APC would remain free from intrusion

by the Sheriff’s Office; and (4) whether Fred Dever was legitimately on the premises. See United

States v. King, 227 F.3d 732, 744 (6th Cir. 2000).3

       Here, possessory rights to APC and the building that housed it were hotly contested in

December of 2005. The state trial court issued a preliminary injunction giving possessory rights to

Clark on December 7. The Devers took an interlocutory appeal on December 12, but the state


       3
         The Devers’ argument that the Sheriff Defendants acted contrary to state law and the
Sheriff’s General Order 74.2 by enforcing a civil entry is misplaced. As shown above, the relevant
inquiry focuses on the actions of the Devers, not the Sheriff Defendants.

                                                 6
appellate court did not stay the preliminary injunction until December 22. Therefore, on December

13, the preliminary injunction was still in effect. As noted previously, the order granting the

preliminary injunction included the following provisions:

       1.      [The Devers] are prohibited from interfering with [Clark’s] quiet enjoyment
               of the subject business and real estate;

       2.      [The Devers] provide defendant Glenn Clark with keys to all locks in all
               buildings located on the subject real estate;

       3.      [The Devers] not enter upon the subject real estate until resolution of this
               case unless express consent is given by Glenn Clark;

       4.      [The Devers] cease collection of accounts receivable and turn over to [Clark]
               any money collected on invoices issued after July 1, 2005.

       The terms of the preliminary injunction defeat any claim that the Devers had a legitimate

expectation of privacy on December 13. Rather than giving the Devers rights to APC, the

preliminary injunction excluded them from the premises. Fred Dever’s presence at APC on the

morning of December 13 was contrary to the state court order and could have been punished by civil

or criminal contempt. See Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 438 (1976).

Under these circumstances, the Devers had no legitimate expectation of privacy in APC when the

defendants arrived.

       The Devers argue, however, that the preliminary injunction was erroneously issued and

consequently that they were entitled to disobey it. This argument is without merit. Under the so-

called collateral bar rule, “[a]n injunction issued by a court acting within its jurisdiction must be

obeyed until the injunction is vacated or withdrawn.” W.R. Grace & Co. v. Local Union 759, 461

U.S. 757, 766 (1983). When faced with a court order they believed to be incorrect, the proper course


                                                 7
of action was for the Devers to appeal the order, not disobey it. See Spangler, 427 U.S. at 439. This

rule reflects the public policy of promoting respect for the rule of law. W.R. Grace, 461 U.S. at 766;

see also Walker v. City of Birmingham, 388 U.S. 307, 320-21 (1967). Consequently, the Devers

were bound to obey the preliminary injunction “even if it [wa]s erroneously issued.” See Zomba

Enters., Inc. v. Panorama Records, Inc., 491 F.3d 574, 585 (6th Cir. 2007); see also In re Mann, 311

F.3d 788, 789 (7th Cir. 2002) (“Half of all litigants (the losing half) may believe that the decision

is incorrect, but it is essential to the operation of any legal system that unsuccessful litigants abide

by the judgment unless they can persuade a higher court to set it aside.”).

        Here, the Devers have not alleged that the Clark County Court of Common Pleas lacked

personal or subject matter jurisdiction over the dispute, nor is there any indication that jurisdiction

was lacking. Therefore, the collateral bar rule required the Devers to obey the preliminary

injunction, unless an exception to the rule applies. See GTE Sylvania, Inc. v. Consumers Union of

U.S., Inc., 445 U.S. 375, 386 (1980). The Devers argue that they were entitled to disobey the

preliminary injunction because their situation fits into the following three exceptions: (1) the

preliminary injunction was transparently invalid; (2) they had no adequate opportunity for appellate

review; and (3) the preliminary injunction required them to irretrievably surrender their

constitutional rights.

        First, it is well established that a party may ignore an injunction if it is “transparently invalid

or had only a frivolous pretense to validity.” See Walker, 388 U.S. at 315; see also Celotex Corp.

v. Edwards, 514 U.S. 300, 306 (1995) (quoting GTE Sylvania, 445 U.S. at 386). The Devers assert

that the preliminary injunction was transparently invalid because it was a “clearly improper


                                                    8
exercise[] of judicial authority” under Ohio law. This, however, amounts to an argument that the

preliminary injunction was erroneously issued which, as shown above, would not have excused

compliance. The Devers have given us no other reasons why they believe the court order was

transparently invalid, and we can find none. The preliminary injunction bore all of the hallmarks of

validity. Before ruling on the motion, the trial court held an evidentiary hearing and received written

submissions from the parties. The court then produced a five-page, single-spaced opinion applying

relevant Ohio law and explaining why a preliminary injunction should issue. The first page of the

order contained a stamp indicating that it had been filed with the clerk of court, and the last page

bore the judge’s signature. Under these circumstances, the preliminary injunction appeared on its

face to be valid, and the Devers had no right to disobey it.

        Second, relying on United States v. Dickinson, 465 F.2d 496, 511 (5th Cir. 1972), the Devers

argue that they were free to disobey the court order if they had no opportunity for “adequate and

effective” appellate review. See id.; see also Walker, 388 U.S. at 318-19 (speculating that an

exception to the collateral bar rule might arise if “delay or frustration” occurred in the state appellate

courts). The record does not support the Devers’ contention that they had no opportunity for

appellate review because they did, in fact, obtain interlocutory appellate review. The Court of

Appeals of Ohio set an expedited briefing schedule and issued its stay just ten days after the Devers

filed their notice of appeal. Despite this, the Devers insist that the stay was not an adequate remedy

because “Clark diverted [their] assets, consumed [their] property, irreparably destroyed [their]

business relationships and filed for Bankruptcy protection.” Even assuming, arguendo, that

monetary damages would not adequately compensate the Devers for their lost business, this


                                                    9
argument is unavailing. A review of the record indicates that Clark’s alleged mismanagement of the

company occurred between July and October of 2005–before the preliminary injunction was issued.

The bankruptcy filing, on the other hand, occurred after the appellate court issued the stay. None

of the alleged harms, then, flowed from the adequacy or inadequacy of Ohio appellate procedure

between December 12 and December 22, 2005. What appears more likely is that the parties

themselves destroyed APC by wresting control of the company back and forth until they had

alienated all of their customers.

        Finally, the Devers cite Maness v. Meyers, 419 U.S. 449, 460 (1975), and the Fifth Circuit’s

opinion in Dickinson, 465 F.2d at 511, for the proposition that compliance with the preliminary

injunction was excused if it would have required an irretrievable surrender of their constitutional

rights. As a threshold issue, it is doubtful that this exception to the collateral bar rule applies to the

instant case. Maness involved the Fifth Amendment privilege against self-incrimination, and the

Supreme Court limited the exception to the facts of that case. See 419 U.S. at 461 n.8. Even if the

exception was applicable, it would not excuse the Devers’ disobedience with the challenged order

because the preliminary injunction did not require the Devers to surrender their property rights

irretrievably. See Dickinson, 465 F.2d at 512. Rather, it was a temporary order that gave possessory

rights to Clark only until the trial court could render a decision on the merits. In sum, none of the

exceptions to the collateral bar rule apply.

        Because the Devers were required to obey the preliminary injunction, they had no legitimate

expectation of privacy in APC on December 13, 2005. Consequently, no “search” occurred within

the meaning of the Fourth Amendment and the Devers have not presented evidence from which a


                                                   10
rational trier of fact could find a violation of their right to be free from an unreasonable search. It

bears repeating that the Devers’ evidence regarding the conduct of the Sheriff Defendants has no

impact on this conclusion. Rather, what is dispositive is the existence of a facially valid court order

and Fred Dever’s conduct in refusing to obey that order.

        Moreover, because the preliminary injunction gave possessory rights to Clark, the Devers had

no legitimate possessory interest in APC on December 13, 2005. Because the Devers have not

established a possessory interest in the premises, they have not presented sufficient evidence from

which a rational trier of fact could conclude that an unreasonable seizure occurred. See United States

v. Perez, 440 F.3d 363, 374 (6th Cir. 2006).

                                                  2.

        The Devers also allege that the defendants violated their Fourteenth Amendment right to

procedural and substantive due process. To proceed on either of these claims, the Devers must

present evidence from which a rational trier of fact could conclude that they had a recognized

property interest in APC at the time they allege their rights were violated. Experimental Holdings,

Inc. v. Farris, 503 F.3d 514, 519 (6th Cir. 2007) (procedural due process); Silver v. Franklin Twp.

Bd. of Zoning Appeals, 966 F.2d 1031, 1036 (6th Cir. 1992) (substantive due process). Property

rights are defined not by federal constitutional law but by state law–in this case, by Ohio law. See

Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972). Ohio courts recognize the collateral bar rule. See

Nat’l Equity Title Agency, Inc. v. Rivera, 770 N.E.2d 76, 78 (Ohio Ct. App. 2001). Because the

preliminary injunction defeats the Devers’ claim of a possessory interest on December 13, 2005,

these claims also fail.


                                                  11
       Moreover, because the Devers have not established a violation of their Fourth and Fourteenth

Amendment rights, we need not reach the question of whether the Sheriff Defendants were entitled

to qualified immunity. See Silver, 966 F.2d at 1036.

                                                B.

       Finally, the Devers assert state law claims for the torts of conversion and trespass. Again,

because the Devers have not presented evidence from which a rational trier of fact could find that

they enjoyed a possessory interest–a necessary prerequisite to claims of conversion and

trespass–these claims similarly fail. See Dice v. White Family Cos., 878 N.E.2d 1105, 1109 (Ohio

Ct. App. 2007) (conversion); Brown v. Scioto County Bd. of Comm’rs, 622 N.E.2d 1153, 1161 (Ohio

Ct. App. 1993) (trespass).

                                               III.

       For the foregoing reasons, we affirm the judgment of the district court.




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