Opinion
Case No. C-3-96-010
March 16, 2000.
Patrick M. Flanagan, for plaintiff.
Robin B. DeBell, for defendant.
This litigation arises out of efforts by the Defendant to abate what it deemed to be a nuisance on a parcel of real property owned by the Plaintiff in the City of Springfield, Ohio. By order dated October 10, 1994, the Defendant notified the Plaintiff that his property was a nuisance and ordered him to abate that nuisance, within 15 days of the receipt of the letter, by removing a number of items, including an accumulation of tires, from that property. The order also informed the Plaintiff that, if he failed to abate the nuisance, the Defendant and/or its authorized agents would do so and assess the Plaintiff for the cost of same. In addition, the order advised the Plaintiff that any appeal was required to be filed with the Code Enforcement Manager, within 10 days of its receipt.
Plaintiff had leased the property to State Tire Shredding Fuel Company, which had operated a tire shredding operation on the property.
Specifically, the order directed Plaintiff to remove all tires, rubbish and debris from the side building and yard; all concrete garbage bags, car parts and pieces, junked vehicles, rubbish, debris and litter discarded throughout the exterior property area and lot west of the building; and all commercial truck trailers, that the Plaintiffs' tenant had abandoned, on the west side of the building.
The Plaintiff did not appeal the order, nor did he abate the nuisance. Rather, during the ensuing months, the parties exchanged correspondence about cleaning up the Plaintiff's property. On November 2, 1994, Plaintiff wrote to the Defendant disclaiming responsibility for the condition on his property and stating that he was also concerned about its condition. In that letter, the Plaintiff also indicated that he had instructed "those responsible" to take action "to get the premises in good condition" and promised to try to meet with the Defendant's Law Director to decide upon a mutually agreeable plan to remedy the situation. On January 18, 1995, Plaintiff wrote again to the Defendant, expressing regret for his inability to follow his November 2nd letter with a visit, requesting that the Defendant reply to his previous letter and promising to submit a plan to clean up his property, if asked to do so. On February 21, 1995, Mary J. Wells ("Wells"), Defendant's Manager of Code Enforcement, wrote to the Plaintiff, stating that the Defendant was in the process of securing bids to remove the junk and debris on Plaintiff's property and requesting that the Plaintiff contact her, if he intended to do the work himself. On February 27, 1995, the Plaintiff wrote to Wells, stating that he had been "vigorously pursuing making arrangements" to bring his property into compliance and that he would do whatever was necessary to accomplish the task, most of which would be completed within the next 90 days.
Wells also reminded the Plaintiff that he would be billed for the costs incurred by the Defendant in removing the junk and debris.
There is no indication that, between February 27, 1995, and May 28, 1995 (90 days after February 27th), the Plaintiff did anything to clean up his property.
There is no evidence before the Court that the parties communicated, after Plaintiff sent his February 27, 1995, letter to Wells, until late October of that year. On October 24, 1995, the Plaintiff was served with a criminal summons, charging him with two counts of operating a salvage yard without a license on his property in Springfield. In his affidavit, the Plaintiff states that both he and his attorney contacted the Defendant after he was served with the summons and that he asked for some accommodation so that he could work to remove the tires on his property. On October 31, 1995, Wells wrote again to the Plaintiff, informing him that a recent inspection revealed that he had not complied with the October, 1994, abatement order and that the Defendant intended to have the exterior and interior of the building cleaned. Wells also requested that the Plaintiff remove from his real estate, by November 13, 1995, all items of personal property he wished to keep. By letter dated December 5, 1995, Plaintiff's attorney, Patrick Flanagan ("Flanagan"), wrote to Defendant's Law Director, Robin DeBell ("DeBell"), confirming that the two had spoken on the telephone regarding the Defendant's intention to enter into a contract with a company to remove the tires on Plaintiff's property and stating that, although the Plaintiff was willing to cooperate in the removal effort, he (Plaintiff) could not agree to be responsible for any contract executed by the Defendant, including one in excess of $100,000, the amount mentioned by DeBell in the telephone conversation. Flanagan also explained that the Plaintiff was attempting to have the tires removed for a lesser sum and requested that the Defendant refrain from voting on or executing a contract for a period of 21 days. On December 19, 1995, Flanagan wrote again to DeBell, setting forth the commitments the Plaintiff had made during a meeting at DeBell's office the previous day. In particular, Flanagan stated that the Plaintiff was investigating options for removing the tires and would make every effort to have signed contracts to accomplish that by January 9, 1996.
One of those counts was subsequently dismissed, as being barred by the statute of limitations, and the Plaintiff was found not guilty on the other count.
Flanagan also stated that, as a gesture of good faith, the Plaintiff would pay the back taxes he owed on the property by January 2, 1996.
On December 21, 1995, the Defendant's City Commission adopted Ordinance No. 95-406, which authorized the City Manager to enter into a contract, not to exceed $122,242, with Rumpke Waste, Inc. ("Rumpke"), to remove and to dispose of the tires and shredded rubber which were located upon the Plaintiff's property and to seek to recover all sums expended in the effort. On December 29, 1995, the Defendant entered into such a contract with Rumpke.
On January 10, 1996, the Plaintiff initiated this litigation by filing his Complaint (Doc. #1). In that pleading, the Plaintiff asserts a claim under 42 U.S.C. § 1983, alleging that, by passing Ordinance No. 95-406, the Defendant violated his (Plaintiff's) rights secured by the United States Constitution. In particular, the Plaintiff alleges that the passage of Ordinance No. 95-406 caused him to suffer a deprivation of property without due process and a denial of equal protection, in violation of the Fourteenth Amendment, and a taking of property without just compensation, in violation of the Fifth Amendment. Plaintiff also alleges that Ordinance 95-406 violates the Ex Post Facto Clause of Article I, Section 10, of the United States Constitution. With his Complaint, the Plaintiff sought compensatory damages. The Defendant has filed a Counterclaim against the Defendant, seeking to recover $122,242, the sum it expended on its contract with Rumpke. See Doc. #3.
In his Complaint, the Plaintiff also sought injunctive relief, prohibiting the Defendant from entering into a contract with Rumpke or preventing any such contract from being performed. Since Rumpke performed its obligations under its contract with the Defendant, shortly after this lawsuit was filed, the Court has granted summary judgment to the Defendant on Plaintiff's request for injunctive relief. See Doc. #15.
On July 15, 1997, this Court entered a Decision in which it sustained in part and overruled in part the Defendant's Motion for Summary Judgment. See Doc. #15. Of particular present importance, the Court rejected the Defendant's argument that principles of res judicata prevent the Plaintiff from now challenging the finding in the October, 1994, abatement order that his property was a nuisance, because he did not appeal that order. The Court agreed with the Defendant that, as a matter of Ohio law, principles of res judicata prevent a person from challenging, in a subsequent lawsuit, an unappealed administrative finding that his property constituted a nuisance. See State ex rel. Casale v. McLean, 58 Ohio St.3d 163, 569 N.E.2d 475 (1991); Annis v. City of Dayton, 1991 WL 12047 (Ohio App. 1991); Platt v. City of Dayton, 1988 WL 131913 (Ohio App. 1988). However, the Court concluded that the Defendant was not entitled to summary judgment, because it had not established, as a matter of law, that this Plaintiff had a right of appeal. In addition, the Court questioned whether such a right of appeal would prevent, as a matter of federal law, the Plaintiff from litigating the question of the existence of a nuisance in the context of resolving his federal law claim under § 1983. This Court noted that, under University of Tennessee v. Elliott, 478 U.S. 788, 794 (1986), the unreviewed final decision of a state administrative body would be given preclusive effect, only when "acting in a judicial capacity . . . [it] resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate." Id. at 799 (quotingUnited States v. Utah Construction Mining Co., 384 U.S. 394, 422 (1966)). Herein, there was neither evidence that the Defendant had been acting in a "judicial capacity" when the abatement order was issued, nor evidence that the order had been made after the Plaintiff had an opportunity to litigate the question of whether his property constituted a nuisance. The Court also directed the Defendant to file a supplemental motion for summary judgment to resolve those and other issues presented by this litigation.
The Defendant filed such a motion. See Doc. #17. On March 30, 1998, this Court overruled same, concluding once again that the Defendant had failed to establish that there was no genuine issue of material fact as to whether the Plaintiff had a right to appeal the October, 1994, nuisance abatement order. See Doc. #21. In addition, the Court concluded that an appeal that provides a property owner "a full and fair opportunity to argue his version of the facts and an opportunity to seek out review of any adverse findings" could provide sufficient due process and meet the standards set forth in Elliot. Id. at 3. However, given the absence of evidence concerning the nature of the appeal to which the Plaintiff was entitled, assuming that such an appeal were available to him, the Court also concluded that this question constituted a genuine issue of material fact. Thus, the Court identified two issues in need of resolution, to wit:
(1) whether the right of appeal from a decision declaring a nuisance, pursuant to Chapter 1323 of the Ordinances of the City of Springfield, existed prior to October 11, 1994, and (2) assuming such a right existed, what is the exact nature of such an appeal (de novo vs. deferential review, etc.).Id. at 4.
The Court conducted a telephone conference call with counsel on April 13, 1998, in order to discuss and to come to an agreement on procedures to resolve those issues. See Doc. #22. During that conference, it was agreed that the parties would file jointly prepared Stipulations of Fact addressing three issues, to wit:
whether (1) a right of appeal from a decision declaring a nuisance, pursuant to Chapter 1323 of the Ordinances of the City of Springfield, existed prior to October 11, 1994; (2) assuming such a right existed, what is the exact nature of such an appeal (de novo vs. deferential review, etc.); and (3) assuming such a right of appeal existed, what is the exact nature of the hearing provided on appeal (the presentation of witnesses, oral argument, etc.).Id. at 1. The parties were also directed to file brief cross motions for summary judgment. Id. at 2. After the parties had filed the requisite stipulations (Doc. #23) and their cross motions for summary judgment (Docs. #24 and #25), this Court, in its Decision of March 6, 1999, sustained the Defendant's motion and overruled that filed by the Plaintiff. See Doc. #26. In particular, this Court concluded that the Plaintiff had a right of appeal which would have provided him "a full and fair opportunity to argue his version of the facts and an opportunity to seek out review of any adverse findings" and that, therefore, principles ofres judicata prevented him from litigating in this lawsuit the issue of whether his property constituted a nuisance. See Doc. #26 at 14. This Court also noted that its ruling meant that the Defendant was entitled to summary judgment on its counterclaim and that it appeared that the ruling meant that none of the Plaintiff's claims remained viable, since they were predicated upon the theory that his property did not constitute a nuisance, at the time the Defendant's City Commission adopted Ordinance No. 95-406, authorizing the City Manager to enter into a contract with Rumpke to remove and to dispose of the tires and shredded rubber which were located upon his property. Id. at 15. However, since the parties had not addressed in their motions whether Defendant was entitled to summary judgment on Plaintiff's claims, because principles of res judicata prevented him from litigating herein the issue of whether his property constituted a nuisance, the Court declined to order, at that point, the entry of final judgment in favor of the Defendant. Id. Rather, the Court directed the Defendant to file a supplemental motion for summary judgment, demonstrating that the Court's ruling entitled it to judgment on the claims set forth in Plaintiff's Complaint. Id. The Defendant has complied with that directive. See Doc. #27. The Court begins its analysis of that motion by setting forth the standards that are applicable to all motions for summary judgment.
Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Of course, the moving party:
always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.Id. at 323. See also Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991) (The moving party has the "burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record, construed favorably to the nonmoving party, do not raise a genuine issue of material fact for trial.") (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir. 1987)). The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed.R.Civ.P. 56(e)). Thus, "[o]nce the moving party has met its initial burden, the nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial." Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir. 1995). Read together, Liberty Lobby and Celotex stand for the proposition that a party may move for summary judgment by demonstrating that the opposing party will not be able to produce sufficient evidence at trial to withstand a directed verdict motion (now known as a motion for judgment as a matter of law. Fed.R.Civ.P. 50). Street v. J.C. Bradford Co., 886 F.2d 1472, 1478 (6th Cir. 1989).
Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient to "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). See also Michigan Protection and Advocacy Service, Inc. v. Babin, 18 F.3d 337, 341 (6th Cir. 1994) ("The plaintiff must present more than a scintilla of evidence in support of his position; the evidence must be such that a jury could reasonably find for the plaintiff."). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex Corp., 477 U.S. at 324. Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment shall be denied "[i]f there are . . . `genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.'" Hancock v. Dodson, 958 F.2d 1367, 1374 (6th Cir. 1992) (citation omitted). Of course, in determining whether a genuine issue of material fact exists, a court must assume as true the evidence of the nonmoving party and draw all reasonable inferences in the favor of that party. Anderson, 477 U.S. at 255 (emphasis added). If the parties present conflicting evidence, a court may not decide which evidence to believe, by determining which parties' affiants are more credible; rather, credibility determinations must be left to the fact-finder. 10A Wright, Miller Kane, Federal Practice and Procedure, § 2726. In ruling on a motion for summary judgment (in other words, in determining whether there is a genuine issue of material fact), "[a] district court is not . . . obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim." Interroyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989), cert. denied, 494 U.S. 1091 (1990). See also L.S. Heath Son, Inc. v. ATT Information Systems, Inc., 9 F.3d 561 (7th Cir. 1993); Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n. 7 (5th Cir.), cert. denied, 113 S.Ct. 98 (1992) ("Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment. . . ."). Thus, a court is entitled to rely, in determining whether a genuine issue of material fact exists on a particular issue, only upon those portions of the verified pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits submitted, specifically called to its attention by the parties.
In his Complaint (Doc. #1), the Plaintiff has alleged that the Defendant violated his rights under the Fifth and Fourteenth Amendments to and the Ex Post Facto Clause of the United States Constitution. With its Supplemental Motion for Summary Judgment (Doc. #27), the Defendant argues it is entitled to summary judgment on the Plaintiff's claims under all of those constitutional provisions. As a means of analysis, the Court will address the three provisions in the above order. I. Fifth Amendment
The Plaintiff raises one argument, which, because it could be applicable to a number of his theories, this Court chooses to address at this point. In particular, Plaintiff contends that the Defendant violated his constitutional rights by removing his personal trailers from his property, without having provided him with advance notice that it would remove those trailers. That assertion is contradicted by the Plaintiff's own affidavit, which he has previously filed in this litigation. See Doc. #10. Therein, the Plaintiff concedes that the October 10, 1994, nuisance abatement order directed him to remove commercial truck trailers from the property.
In his Complaint, the Plaintiff alleges that the Defendant has taken his property without paying him just compensation, in violation of the Takings Clause contained within the Fifth Amendment. The Defendant argues that it is entitled to summary judgment on this claim, because the Plaintiff's failure to appeal the notice to abate the nuisance prevents him from challenging, in this litigation, the City's claim that his property constituted a nuisance. This Court agrees that the Defendant did not violate the Takings Clause, by adopting Ordinance No. 95-406, which authorized the City Manager to enter into a contract with Rumpke to remove and to dispose of the tires, shredded rubber and other trash and debris which were located upon the Plaintiff's property. In Dolan v. City of Tigard, 512 U.S. 374 (1994), the Supreme Court reiterated that the fundamental purpose of the Takings Clause is "`to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.'" Id. at 384 (quoting Armstrong v. United States, 364 U.S. 40, 49 (1960)). Courts, including the Supreme Court, have rejected the argument that a unit of government violates the Takings Clause, by preventing the use of private property in such a manner which either is or could be consider to be a nuisance. Therefore, fairness and justice do not compel the public as a whole to bear the burden of abating the nuisance which Plaintiff permitted his property to become.
The Fifth Amendment provides, in pertinent part, "nor shall property be taken for public use, without just compensation." The Supreme Court has repeatedly held that the Takings Clause is made applicable to the states and their subdivisions by the Fourteenth Amendment. Dolan v. City of Tigard, 512 U.S. 374, 383-84 (1994).
This Court begins by examining Miller v. Schoene, 276 U.S. 272 (1928). Therein, the state of Virginia ordered the plaintiff to cut down ornamental cedar trees growing on his property, in order to prevent the spread of a plant disease from those trees to nearby apple orchards. After complying with that order, the plaintiff brought suit, alleging that the state had violated the Takings Clause, by issuing the order, and seeking to recover the costs he had incurred as a result, as well as the diminution in the value of his property. The Supreme Court unanimously held that Virginia had not violated the Takings Clause, because "[w]here the public interest is involved, preferment of that interest over the property interest of the individual, to the extent even of its destruction, is one of the distinguishing characteristics of every exercise of the police that affects property." Id. at 279-80. In other words, the danger posed to the public as a whole by the existence of diseased trees on the plaintiff's property justified ordering him to remove them without being compensated. See also, Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470 (1987) (noting that courts have consistently held that a state need not provide compensation when it has acted to abate a nuisance). Other courts have reached similar results. In United States v. Northeastern Pharmaceutical Chemical Co., Inc., 810 F.2d 726, 734 (8th Cir. 1986), cert.denied, 484 U.S. 848 (1987), the Eighth Circuit rejected the argument that imposing liability under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601, et seq., violated the Takings Clause, since that statute, by requiring the cleanup of hazardous waste sites, eliminated substantial endangerment to the public health and, thus, abated nuisances. In Nassr v. Commonwealth, 394 Mass. 767, 477 N.E.2d 987 (1985), the court addressed a controversy which is similar to the instant litigation. Therein, the state had entered the plaintiff's property to cleanup a hazardous waste facility that had been operating without a license. The plaintiff sued, alleging that the state had violated the Takings Clause. The Supreme Judicial Court of Massachusetts rejected that argument, since the state had been acting within its police power by abating the nuisance on plaintiff's property. See also, Porter v. Diblasio, 93 F.3d 301, 310 (7th Cir. 1996) (holding that the seizure and disposal of neglected animals did not violate the Takings Clause, because it was "analogous to the state's traditional power to take action to abate a nuisance" and citingMiller to support that proposition).
In sum, the Plaintiff's property constituted a nuisance. He was given well over one year in which to abate that nuisance and informed that his failure to act would cause the Defendant to take cleanup action itself and to collect the amount expended from him. When the Plaintiff failed to act, the Defendant passed an ordinance, whereby its administrators were permitted to enter into a contract to abate the nuisance that existed on Plaintiff's property. Under those circumstances, and in accordance with the foregoing authority, there was no violation of the Takings Clause. Accordingly, the Court sustains the Defendant's Supplemental Motion for Summary Judgment (Doc. #27), as it relates to the Plaintiff's Claim under the Takings Clause of the Fourteenth Amendment.
II. Fourteenth Amendment
The Plaintiff contends that the Defendant has violated both the Due Process and the Equal Protection Clauses of the Fourteenth Amendment. As a means of analysis, the Court will discuss those two theories in the above order.
First, the Defendant is entitled to summary judgment on the Plaintiff's claim that he was deprived of property without due process of law, in violation of the Fourteenth Amendment. The Due Process Clause of the Fourteenth Amendment does not prohibit every deprivation of due process, only those which occur without due process of law. See e.g., Harris v. City of Akron, 20 F.3d 1396, 1401 (6th Cir. 1994). It is axiomatic that "[t]he fundamental elements of procedural due process are notice and an opportunity to be heard." Yellow Freight Sys., Inc. v. Martin, 954 F.2d 353, 357 (6th Cir. 1992). Accord In re Julien Co., 146 F.3d 420, 425 (6th Cir. 1998). Herein, before he suffered any sort of deprivation of property, the Plaintiff was given notice and an opportunity to be heard. In particular, the October 10, 1994, nuisance abatement order informed him that he had the right to appeal that order. In its Decision of March 6, 1999, this Court concluded that such a hearing would have afforded the Plaintiff the opportunity of presenting evidence and arguments and that the order would have been subject to a de novo review. Doc. #26 at 12-14. The Plaintiff did not receive such a hearing, because he declined to take advantage of his right of appeal. Therefore, this Court concludes that the Plaintiff has not suffered a deprivation of property without due process of law. Accord,Samuels v. Meriwether, 94 F.3d 1163, 1166-67 (8th Cir. 1996) ("We have held that where a property owner is given written notice to abate a hazard on his or her property and has been given an opportunity to appear before the proper municipal body considering condemnation of the property, no due process violation occurs when the municipality abates the nuisance pursuant to the condemnation notice."). Moreover, his failure to pursue his appellate rights would prevent this Court from adjudicating his due process claim. In Platt v. City of Dayton, 1991 WL 186642 (6th Cir. 1991), the Sixth Circuit reached such a conclusion in an analogous case. Therein, the plaintiff alleged, inter alia, that he had suffered a deprivation of property without due process of law, when the defendant condemned several structures that he owned, pursuant to its nuisance abatement program. The Sixth Circuit affirmed the grant of summary judgment in favor of the defendant on that claim, because the plaintiff had failed to challenge the condemnation order, in accordance with the procedures afforded by state law.
Second, this Court agrees with Defendant that it is entitled to summary judgment on the Plaintiff's claim that he suffered a deprivation of equal protection of the laws, in violation of the Fourteenth Amendment. It is axiomatic that a claim under the Equal Protection Clause of the Fourteenth Amendment exists only when the government has taken action against or denied a benefit to a person, because he is a member of a suspect class. LRL Properties, Inc. v. Portage Metro Housing Authority, 55 F.3d 1097, 1111 (6th Cir. 1995). Since individuals who permit nuisances to exist on their property are not a suspect class, the Defendant is entitled to summary judgment on the Plaintiff's claim that he has suffered a deprivation of equal protection of the laws.
Accordingly, the Court sustains the Defendant's Supplemental Motion for Summary Judgment (Doc. #27), to the extent that, with that motion, it seeks summary judgment on his claims under the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
III. Ex Post Facto Clause
Article I, § 10, of the United States Constitution provides,inter alia, that "[n]o State shall . . . pass any . . . ex post facto Law. . . ." The Plaintiff contends that the Defendant violated that constitutional provision by adopting Ordinance 95-406. The Defendant is entitled to summary judgment on this claim for the reason that "ex post facto principles have no application in civil contexts." Wilson v. Yaklich, 148 F.3d 596, 606 (6th Cir. 1998),cert. denied, 525 U.S. 1139 (1999). In Gardner v. City of Columbus, Ohio, 841 F.2d 1272 (6th Cir. 1988), the Sixth Circuit wrote:
"The ex post facto prohibition forbids the Congress and the States to enact any law `which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.'" Weaver v. Graham, 450 U.S. 24, 28 (1981) (quoting Cummings v. Missouri, 4 Wall 277, 325-26 (1867)) (footnote omitted). In Weaver, the court also noted that "no ex post facto violation occurs if the change effected is merely procedural, and does `not increase the punishment nor change the ingredients of the offense or the ultimate facts necessary to establish guilt.'" Id. at 29 n. 12 (quoting Hopt v. Utah, 110 U.S. 574, 590 (1884)).Id. at 1280. Ordinance 95-406 did not impose punishment on the Plaintiff for actions that were not punishable at the time of their commission; nor did it increase the applicable punishment. Indeed, that municipal legislation was civil in nature, rather than being punitive, since it merely authorized administrators for the City of Springfield to enter into a contract with Rumpke, to abate the nuisance that existed on the Plaintiff's property (i.e., to remove the tires and other debris therefrom), and, then, to collect from the Plaintiff the amount that was paid to Rumpke.
Accordingly, the Court sustains the Defendant's Supplemental Motion for Summary Judgment (Doc. #27), to the extent that, with that motion, the Defendants seeks summary judgment on the Plaintiff's claim under the Ex Post Facto Clause, contained in Article I, § 10, of the United States Constitution.
Based upon the foregoing, the Court sustains the Defendant's Supplemental Motion for Summary Judgment (Doc. #27) in its entirety. As a result of this Decision and this Court's previous Decisions (see Docs. #15, #21 and #26), the Defendant is entitled to judgment on the Plaintiff's Complaint and on its Counterclaim. Accordingly, the Court directs that judgment be entered in favor of the Defendant and against the Plaintiff, dismissing the Plaintiff's Complaint with prejudice and awarding the Defendant $122,242 on its Counterclaim.
The Plaintiff argues that a genuine issue a material fact exists as to whether the Defendant has actually expended $122,242, the amount it seeks to recover with its Counterclaim. This Court does not agree. The affidavit of Kimberly Massie, which is appended to Defendant's Motion for Summary Judgment (Doc. #8), indicates that the Defendant paid $122,242 to Rumpke on February 27, 1996. The Plaintiff has failed to produce any evidence tending to contradict that affidavit.
The captioned cause is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.