[Cite as Ludt v. Youngstown, 2016-Ohio-8553.]



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

JAMES B. LUDT                                   )
                                                )
        PLAINTIFF-APPELLEE                      )
                                                )           CASE NO. 15 MA 0084
VS.                                             )
                                                )                  OPINION
CITY OF YOUNGSTOWN, et al.                      )
                                                )
        DEFENDANTS-APPELLANTS                   )

CHARACTER OF PROCEEDINGS:                       Civil Appeal from the Court of Common
                                                Pleas of Mahoning County, Ohio
                                                Consolidated Case No. 2013 CV 2548

JUDGMENT:                                       Reversed.

APPEARANCES:
For Plaintiff-Appellee                          James Ludt, Pro-se
                                                2129 East Midlothian Boulevard
                                                Struthers, Ohio 44471

For Defendants-Appellants                       Attorney Megan Millich
                                                Attorney Neil Schor
                                                26 Market Street, Suite 1200
                                                Youngstown, Ohio 44501-6077

JUDGES:

Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Carol Ann Robb


                                                Dated: December 29, 2016
[Cite as Ludt v. Youngstown, 2016-Ohio-8553.]
DeGENARO, J.

        {¶1}    Defendants-Appellants, City of Youngstown, et al, appeal the trial
court's judgment overruling their motion for summary judgment in part. As Appellants'
arguments are meritorious, the judgment of the trial court is reversed and modified so
as to grant Appellants summary judgment on all of Ludt's claims.
                                Facts and Procedural History
        {¶2}    This appeal involves three of four cases which were consolidated into
Case No. 2013 CV 2548 at the trial court level, and are described as follows by case
number.
                                            13 CV 2549
        {¶3}    Ludt filed a complaint against the City of Youngstown, Mayor Jay
Williams, and Assistant Chief Enforcement Officer Tony DeNicholas, alleging multiple
claims. Appellants filed an answer denying all claims and asserting various
affirmative defenses. They also filed a motion for summary judgment which Ludt
opposed. On May 26, 2015, the trial court granted summary judgment to Appellants
on a majority of Ludt's claims. However, it denied summary judgment on Ludt's
Section 1983 Fourth Amendment claim and his due process claim.
                                            14 CV 2590
        {¶4}    Ludt's complaint as amended against the City of Youngstown, Mayor
Charles Samarone, Prosecutor Dana Lantz, Police Officer Laura Fulmer, Assistant
Prosecutor Kathleen Thompson, and other unknown city employees, alleged,
pertinent to this appeal, "4th Amendment Violation Retaliation Thru Officials Position
of Office/Employment Since the Year 2004." Defendants filed a motion for summary
judgment and one month later Ludt filed a voluntary motion to dismiss this case citing
his lack of legal training and bipolar condition as grounds. On May 26, 2015, the trial
court overruled the motion to dismiss and granted summary judgment to Defendants
on all of Ludt's claims except for the retaliation claim.
                                            13 CV 2550
        {¶5}    Ludt filed a complaint against the City of Youngstown, Mayor Jay
Williams, Arson Investigator Alvin Ware, Fireman Richard Russo, Battalion Chief
David Harris, and Police Officer Doug Pesa for Abuse of Process, Malicious
                                                                                -2-


Prosecution, False Arrest, Retaliation, and Section 1983 claim.
       {¶6}    Factually, on April 22, 2009, a fire occurred at Ludt's property located
at 1422 Midlothian Boulevard, Youngstown, Ohio. Ludt alleges City of Youngstown
firefighters Ware, Russo, and Harris and Officer Pesa embarrassed him and
trespassed onto his property. He contends a verbal altercation occurred after the fire
was extinguished. Ludt believes the fire was arson and not properly investigated.
Ludt was charged with obstruction of official business and misconduct at an
emergency. The latter charge was dismissed by the city prosecutor. Ludt waived his
preliminary hearing and consented to binding over to the grand jury the obstruction
charge. He was indicted on May 21, 2009 and ultimately found not guilty.
       {¶7}   Appellants filed an answer denying all claims and asserting various
affirmative defenses. Defendants filed a motion for summary judgment which Ludt
opposed. On May 26, 2015, the trial court granted summary judgment to Appellants
on all of Ludt's claims except for the Malicious Prosecution, False Arrest, and
Retaliation claims.
       {¶8}   When reviewing a trial court's decision to grant summary judgment, an
appellate court review is de novo. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-
4559, 833 N.E.2d 712, ¶ 8. Summary judgment will be granted when the movant
demonstrates, viewing the evidence most strongly in favor of the nonmovant, that
reasonable minds can find no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Doe v. Shaffer, 90 Ohio St.3d 388, 390,
2000-Ohio-186, 738 N.E.2d 1243. A material fact is one that affects the outcome of
the suit under the applicable substantive law. Bank v. Miller, 7th Dist. No. 13 MA 119,
2015-Ohio-2325, ¶ 26.
                       13 CV 2549 - Fourth Amendment Claim
       {¶9}   In their first of six assignments of error, Appellants assert:

       THE TRIAL COURT ERRED BY DENYING SUMMARY JUDGMENT
       TO     MAYOR     JAY    WILLIAMS      AND    TONY      DENICHOLAS       ON
       APPELLEE'S 4th AMENDMENT CLAIM.
                                                                                -3-


      {¶10} An action under Section 1983 alleges that an individual had been
deprived of a Constitutional right by a person acting under color of law. 42 U.S.C.
1983; Conley v. Shearer, 64 Ohio St.3d 284, 292, 1992-Ohio-133, 595 N.E.2d 862.
Federal and state courts have concurrent jurisdiction to remedy this deprivation.
Schwarz v. Board of Trustees of Ohio State Univ., 31 Ohio St.3d 267, 510 N.E.2d
806. "To establish a 1983 claim against an individual public official, two elements are
required: (1) the conduct complained of must be committed by a person acting under
color of state law, and (2) the conduct must deprive the plaintiff of a federally
protected right, either constitutional or statutory." Cook v. Cincinnati, 103 Ohio
App.3d 80, 85, 658 N.E.2d 814 (1st Dist.1995).
      {¶11} The pertinent part of Section 1983, Title 42, U.S. Code states:

      Every person who, under color of any statute, ordinance, regulation,
      custom, or usage, of any State * * *, subjects, or causes to be
      subjected, any citizen of the United States * * * to the deprivation of any
      rights, privileges, or immunities secured by the Constitution and laws,
      shall be liable to the party injured in an action at law, suit in equity, or
      other proper proceeding for redress * * *.

      {¶12} Governmental officials may avail themselves of a qualified immunity
defense if they are sued under Section 1983. When determining whether qualified
immunity should be granted, the court applies a three-prong test:

             (1) whether, based upon the applicable law, the facts viewed in
             the light most favorable to the plaintiffs show 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 indicate that what the official
             allegedly did was objectively unreasonable in light of the clearly
             established constitutional rights.
                                                                                 -4-


Vlcek v. Chodkowski, 2015-Ohio-1943, 34 N.E.3d 446, ¶ 20 (2d Dist.) citing
Radvansky v. City of Olmsted Falls, 395 F.3d 291, 302 (6th Cir.2005).
         {¶13} Once qualified immunity is raised, it is the plaintiff's burden of proof to
establish that the defendants are not entitled to qualified immunity. Cook, supra, at
85-86.
         {¶14} Although Ludt made multiple allegations against Williams, Ludt never
alleged that Williams violated his Fourth Amendment rights depriving him of his
personal property. Thus, we need not consider whether Williams is protected by
qualified immunity. Even if we were to consider it, Appellants asserted the defense,
and Ludt asserted nothing in response and as such did not meet his burden to
demonstrate Williams was not entitled to qualified immunity. Cook supra.
         {¶15} Regarding DeNicholas, Ludt alleged, and Appellants admitted in their
motion for summary judgment, that DeNicholas was employed and acting in his
capacity as a Youngstown zoning officer when he briefly took Ludt's video camera
but quickly returned it. They further asserted the administration of a zoning
department is a governmental function and entitled to immunity. As Appellants
carried the initial burden of alleging facts demonstrating DeNicholas was acting within
the scope of his authority during the incident, the burden shifts to Ludt to establish
that DeNicholas' conduct violated a clearly established right that any official in his
position would have understood he or she was under an affirmative duty to refrain
from such conduct. Cook, supra.
         {¶16} In his opposition to summary judgment Ludt contended DeNicholas was
"acting outside his/her Authority" and consequently has no qualified immunity; he
asserts nothing else in rebuttal. This contradicts the allegations in Ludt's complaint
that DeNicholas took his camera while working for the city.
         {¶17} In sum, summary judgment should have been granted to Appellants on
Ludt's Fourth Amendment claim against Williams and DeNicholas. Accordingly
Appellants' first assignment of error is meritorious.
                            13 CV 2549 - Due Process Claim
         {¶18} In their second of six assignments of error, Appellants assert:
                                                                                -5-


       THE TRIAL COURT ERRED BY DENYING SUMMARY JUDGMENT
       TO THE CITY OF YOUNGSTOWN, MAYOR JAY WILLIAMS, AND
       TONY DENICHOLAS ON APPELLEE'S DUE PROCESS CLAIM.

       {¶19} Ludt makes no allegations in either his complaint or in opposition to
summary judgment that Jay Williams and the City violated his due process rights.
Thus, we need not consider whether Williams and the City are protected by qualified
immunity. Even if we were to consider it, Appellants asserted the defense and Ludt
asserted nothing in response and as such did not meet his burden to demonstrate
Williams and the City were not entitled to qualified immunity. Cook, supra.
       {¶20} Regarding DeNicholas, Ludt alleged his due process rights were
violated when DeNicholas took his camera and briefly withheld it before returning it to
him. It's unclear if Ludt is arguing that his procedural or substantive due process
rights were violated. Both will be discussed in turn.

       The Due Process Clause of the Fourteenth Amendment states that no
       state shall 'deprive any person of life, liberty, or property without due
       process of law.' In order to state a claim under 42 U.S.C.1983 for a
       procedural due process violation, a plaintiff must allege that (1) he or
       she has a right or interest that is entitled to due process protection, and
       (2) that he or she was deprived of that right without a meaningful
       opportunity to be heard.

Rodefer v. McCarthy, 2015-Ohio-3052, ¶ 50, 36 N.E.3d 221 (2d Dist.).
       {¶21} Ludt made no claim or asserted any facts that he had a right or interest
that was entitled to due process and that he was deprived of that right without a
hearing. Accordingly a procedural due process argument is meritless.
       {¶22} "[S]ubstantive rights may be enforced via Section 1983." Peoples
Rights Org., Inc. v. Montgomery, 142 Ohio App.3d 443, 488, 756 N.E.2d 127 (12th
Dist. 2001). Many of the specific protections in the Bill of Rights are incorporated into
the Due Process Clause, the infringement of which may be challenged via litigation.
                                                                                -6-


Id. "The Due Process Clause contains a substantive component that bars arbitrary,
wrongful government actions 'regardless of the fairness of the procedures used to
implement them.'" Id., quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662,
88 L.Ed.2d 662 (1986). "Substantive due process thus protects both explicit rights
and other fundamental rights." Id. The Twelfth District elaborated:

      The protection of substantive due process exists to ensure " 'the right to
      be free [from] state intrusions into [the] realms of personal privacy and
      bodily security through means so brutal, demeaning, and harmful as
      literally to shock the conscience.' " Lillard v. Shelby Cty. Bd. of Edn.
      (C.A.6, 1996), 76 F.3d 716, 725. * * *

      Substantive due process protections have been afforded only in certain
      fundamental realms, relating to "marriage, family, procreation, and the
      right to bodily integrity." Albright, 510 U.S. at 272, 114 S.Ct. at 812, 127
      L.Ed.2d at 122.

Montgomery, 142 Ohio App.3d at 491.
      {¶23} Ludt has failed to provide a substantive due process ground as the
basis to sustain this lawsuit; his claim that DeNicholas took his camera is not one of
the recognized protected grounds.
      {¶24} In sum, the trial court should have granted summary judgment to the
Appellants on Ludt's due process claim against the city, Jay Williams, and Tony
DeNicholas. Accordingly, Appellants' second assignment of error is meritorious.
                         13 CV 2550 - Malicious Prosecution
      {¶25} In their third of six assignments of error, Appellants assert:

      THE TRIAL COURT ERRED BY DENYING SUMMARY JUDGMENT
      TO MAYOR JAY WILLIAMS, ALVIN WARE, RICHARD RUSSO, DAVID
      HARRIS,      AND     DOUG     PESA       ON   APPELLEE'S        MALICIOUS
      PROSECUTION CLAIM.
                                                                                -7-


       {¶26} A malicious prosecution claim entails the following: "(1) malicious
institution of prior proceedings against the plaintiff by defendant, (2) lack of probable
cause for the filing of the prior lawsuit, (3) termination of the prior proceedings in
plaintiff's favor, and (4) seizure of plaintiff's person or property during the course of
the prior proceedings." (Citations omitted.) Crawford v. Euclid Natl. Bank, 19 Ohio
St.3d 135, 139, 483 N.E.2d 1168 (1985). A grand jury indictment in a criminal
prosecution creates a rebuttable presumption that there was probable cause to
prosecute, unless those proceedings received perjured testimony or were otherwise
significantly irregular. See Adamson v. May Co., 8 Ohio App.3d 266, 456 N.E.2d
1212 (8th Dist.1982), syllabus.
       {¶27} Appellants asserted in their summary judgment motion that Ludt failed
to establish the second element, lack of probable cause, because he waived his
preliminary hearing and was indicted by the grand jury, attaching a copy of the waiver
and the indictment. Ludt failed to provide any evidence rebutting that assertion, and
did not address this argument in his opposition to summary judgment.
       {¶28} Based on the evidence presented, reasonable minds could find no
genuine issue of material fact as to whether probable cause was established.
Accordingly, the trial court should have granted Appellants' summary judgment on
Ludt's malicious prosecution claim, and their third assignment of error is meritorious.
                          13 CV 2550 - False Arrest Claim
       {¶29} In their fourth of six assignments of error, Appellants assert:

       THE TRIAL COURT ERRED BY DENYING SUMMARY JUDGMENT
       TO MAYOR JAY WILLIAMS, ALVIN WARE, RICHARD RUSSO, DAVID
       HARRIS, AND DOUG PESA ON APPELLEE'S FALSE ARREST
       CLAIM.

       {¶30} The Fourth District held regarding false arrest and Section 1983 claims:

       [T]he plaintiff asserts that law enforcement officers deprived him or her
       of the Fourth Amendment right to be free from unreasonable seizures of
                                                                               -8-


       the person. "[A] warrantless arrest by a law officer is reasonable under
       the Fourth Amendment where there is probable cause to believe that a
       criminal offense has been or is being committed." Devenpeck v. Alford,
       543 U.S. 146, 152, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004). Thus, for a
       wrongful arrest claim to succeed under 42 U.S.C.1983, a plaintiff must
       prove that the police lacked probable cause to arrest. Miller v. Sanilac
       Cty., 606 F.3d 240, 250 (6th Cir.2010); Logsdon v. Hains, 492 F.3d
       334, 341 (6th Cir.2007).

Bodager v. Campbell, 4th Dist. No. 12CA828, 2013-Ohio-4650, ¶ 35.
       {¶31} Ludt's false arrest claim is based on his allegation that the arrest
warrant issued for him was based upon "false testimony that was recanted at trial."
He never attached any evidentiary materials to support this contention. Appellants
again asserted in the summary judgment motion that the grand jury indictment in the
criminal prosecution created a rebuttable presumption of probable cause. Ludt did
not address this argument in response. The trial court should have granted summary
judgment to Williams, Ware, Russo, Harris, and Pesa on Ludt's false arrest claim.
Accordingly, Appellants' fourth assignment of error is meritorious.
                   13 CV 2550 & 14 CV 2590 - Retaliation Claims
       {¶32} Appellants' fifth and six assignments of error are interrelated and will be
discussed together for clarity of analysis:

       THE TRIAL COURT ERRED BY DENYING SUMMARY JUDGMENT
       TO CITY OF YOUNGSTOWN, MAYOR JAY WILLIAMS, ALVIN WARE,
       RICHARD RUSSO,          DAVID HARRIS,        AND DOUG          PESA   ON
       APPELLEE'S RETALIATION CLAIM.

       THE TRIAL COURT ERRED BY DENYING SUMMARY JUDGMENT
       TO    THE      CITY     OF    YOUNGSTOWN,          MAYOR       CHARLES
       SAMMARONE, DANA LANTZ, LAURA FULLMER, AND KATHLEEN
       THOMPSON ON APPELLEE'S RETALIATION CLAIM.
                                                                          -9-


{¶33} The Sixth Circuit discussed the remedy for retaliation claims:

      It is well established that government actions, which standing
      alone do not violate the Constitution, may nonetheless be
      constitutional torts if motivated in substantial part by a desire to
      punish an individual for exercise of a constitutional right. See,
      e.g., Crawford–El v. Britton, 523 U.S. 574, 118 S.Ct. 1584, 140
      L.Ed.2d 759 (misdirection of personal belongings may state a
      claim of retaliation for exercise of First Amendment rights); Board
      of County Comm'rs, Wabaunsee County v. Umbehr, 518 U.S.
      668, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996) (nonrenewal of
      plaintiff's government contract in retaliation for his exercise of
      free speech is actionable); Perry v. Sindermann, 408 U.S. 593,
      597, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) ("[I]f the government
      could deny a benefit to a person because of his constitutionally
      protected speech or associations, his exercise of those freedoms
      would in effect be penalized and inhibited."); Valot v. Southeast
      Local Sch. Dist. Bd. of Educ., 107 F.3d 1220, 1225 (6th Cir.)
      ("[A] claim of retaliation for exercise of the constitutional right of
      access is cognizable under § 1983."), cert. denied, 522 U.S. 861,
      118 S.Ct. 164, 139 L.Ed.2d 108 (1997); Zilich v. Longo, 34 F.3d
      359, 365 (6th Cir.1994) ("The law is well settled in this Circuit
      that retaliation under color of law for the exercise of First
      Amendment rights is unconstitutional ...."), cert. denied, 514 U.S.
      1036, 115 S.Ct. 1400, 131 L.Ed.2d 288 (1995). Therefore, for
      these wrongs, too, § 1983 provides a remedy.
                 *        *     *      *      *     *
      Retaliation claims arise in any number of contexts. The essence
      of such a claim is that the plaintiff engaged in conduct protected
      by the Constitution or by statute, the defendant took an adverse
                                                                                - 10 -


              action against the plaintiff, and this adverse action was taken (at
              least in part) because of the protected conduct.         There are
              variations on this theme in bodies of statutory law that allow
              retaliation claims (e.g., ADA, Title VII, NLRA, etc.), but the
              essential framework remains the same. See, e.g., Barnett v.
              Department of Veterans Affairs, 153 F.3d 338, 343 (6th Cir.1998)
              (Title VII retaliation claim); Walborn v. Erie County Care Facility,
              150 F.3d 584, 588–89 (6th Cir.1998) (ADA retaliation claim);
              Wrenn v. Gould, 808 F.2d 493, 500–01 (6th Cir.1987) (Title VII
              retaliation claim).

Thaddeus-X v. Blatter, 175 F.3d 378, 386-387 (6th Cir. 1999)
       {¶34} Regarding Ludt's claims against Youngstown, Williams, Ware, Russo,
Harris, and Pesa, he does not allege any specific speech on his part that resulted in
him being charged with obstruction of official business. He alleged that the
Appellants criminally prosecuted him without following or applying normal city
procedures of investigation before charging him. Ludt alleged nothing correlating free
or protected speech with the accompanying charges. Thus, the complaint does not
adequately set forth a retaliation claim in the first instance.
       {¶35} Moreover, Appellants' summary judgment motion asserted this
deficiency yet Ludt did not address it in his opposition to summary judgment. As
such, the trial court should have granted Youngstown, Williams, Ware, Russo, Harris,
and Pesa summary judgment on this retaliation claim.
       {¶36} Regarding Ludt's claim against, Youngstown, Sammarone, Lantz,
Fulmer, and Thompson, he does allege several specific instances of graffiti on his
property and the lawsuits the City filed against him that followed. These lawsuits are
based on defacement ordinances and zoning violations. Ludt was charged for zoning
violations as opposed to being charged for exercising his free speech rights. Ludt's
retaliation claim is deficient and inadequately sets forth a cause of action because it
merely states that the Appellants criminally prosecuted him without following or
                                                                                - 11 -


applying normal city procedures of investigation.
         {¶37} In light of this deficiency, we need not consider whether Youngstown,
Williams, Ware, Russo, Harris, Pesa, Sammarone, Lantz, Fulmer, and Thompson are
protected by qualified immunity. Even if we were to consider it, Appellants asserted
the defense and Ludt asserted nothing in response and as such did not meet the
burden and demonstrate Appellants were not entitled to qualified immunity. Cook
supra.
         {¶38} The trial court should have granted summary judgment in favor of the
Appellants on both of Ludt's retaliation claims. Accordingly, Appellants' fifth and sixth
assignments of error are meritorious.
         {¶39} In sum, all six of Appellants' assignments of error are meritorious. Ludt
has inadequately pled the causes of action he wishes to sustain. Moreover, Ludt has
failed to rebut Appellants' assertion of qualified immunity. Accordingly, the judgments
of the trial court in favor of Ludt are reversed, and modified so that summary
judgment is granted in favor of Appellants.



Donofrio, P. J., concurs.

Robb, J., concurs.
