Opinion
No. 5:01 CV 1642
December 11, 2002
MEMORANDUM OF OPINION AND ORDER
Before the Court is Defendants' Motion for Summary Judgment ("Defendants' Motion") ( ECF No. 46). Plaintiffs ("Argo") bring this action against the Defendants for violating Argo's property rights under the Fifth Amendment, as well as Argo's' procedural and substantive due process rights and equal protection rights under the Fourteenth Amendment to the United States Constitution.
I. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where "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). The moving party 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." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant may meet this burden by demonstrating the absence of evidence supporting one or more essential elements of the non-movant's claim. Id. at 323-25. Once the movant meets this burden, the opposing party "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)). 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 "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, Rule 56(e) "requires the nonmoving party to go beyond the pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324; see also Harris v. General Motors Corp., 201 F.3d 800, 802 (6th Cir. 2000). 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, 477 U.S. at 322. "In considering a motion for summary judgment, the Court must view the facts and draw all reasonable inferences therefrom in a light most favorable to the nonmoving party." Williams v. Belknap, 154 F. Supp.2d 1069, 1071 (E.D.Mich. 2001) (citing 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987)). However, "`at the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter,'" Wiley v. U.S., 20 F.3d 222, 227 (6th Cir. 1994) (quoting Anderson, 477 U.S. at 249); therefore, "[t]he Court is not required or permitted . . . to judge the evidence or make findings of fact." Williams, 154 F. Supp.2d at 1071. The purpose of summary judgment "is not to resolve factual issues, but to determine if there are genuine issues of fact to be tried." Abercrombie Fitch Stores, Inc. v. American Eagle Outfitters, Inc., 130 F. Supp.2d 928, 930 (S.D. Ohio 1999). Ultimately, this Court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52; see also Atchley v. RK Co., 224 F.3d 537, 539 (6th Cir. 2000).
II. FACTUAL BACKGROUND
Plaintiffs Argo Contracting Corporation, Bay State Painting, Inc., and Larry Frangos (collectively, "Argo") filed a Complaint and Amended Complaint on July 6, 2001 and February 22, 2002, respectively. ECF Nos. 1 and 17. Under the allegations of the Amended Complaint (ECF No. 17), Argo tells the following story. Plaintiffs Argo Contracting Corporation and Bay State Painting, Inc. are incorporated in and have their principal place of business in Ohio. ECF No. 17, ¶ 2. Plaintiff Larry Frangos is the owner of Argo Contracting and Bay State Painting. Id., ¶ 3. Each of the Defendants was employed by ODOT, District 4, and maintained the following position at the time that the facts in question allegedly occurred: James Mashburn, Project Manager ( ECF No. 32, ¶ 8); Robert Paradise, District Construction Engineer (ECF No. 33, ¶ 1); Anthony Pamer, District Area/Field Engineer ( ECF No. 34, ¶ 1); Philip Crish, Construction Field/Area Engineer (ECF No. 37, ¶ 1); Robert Rossbach, District Field/Area Engineer (ECF No. 31, ¶ 1); and George Morar, Transportation Engineer Intern (ECF No. 36, ¶ 1). Argo was engaged in bridge painting contracts or subcontracts awarded by ODOT. ECF No. 17, ¶ 10. During this time, Defendants violated rights and privileges and property rights of Argo protected under the Fifth and Fourteenth Amendments to the United States Constitution Id. ¶ 11. Defendants violated Argo's rights to procedural and substantive due process of law and equal protection as guaranteed by the Fifth and Fourteenth Amendments. Id. ¶ 12. Defendants willfully and deliberately intimidated, harassed, and humiliated Argo by the disparate treatment of Argo; overzealous enforcement of contract specifications; and defaming Argo's business reputation. Id. ¶ 13.
The Amended Complaint asserted claims against James D. Mashburn, Robert A. Paradise, Anthony Pamer, Phil Crish, Robert Rossbach, and George Morar (collectively, "Defendants"), each in their individual capacity as employees of the Ohio Department of Transportation ("ODOT"). Based on the foregoing factual allegations, Argo sets forth the following eight counts:
Plaintiffs' Amended Complaint incorrectly identified Defendant as Phil Krish.
On March 25, 2002, Argo voluntarily dismissed its claims against ODOT and the Defendants in their official capacity. ECF No. 22. The Court issued an Order and Notice of Party Dismissal on March 26, 2002. ECF No. 23.
Count I: From approximately September-November 1999 when Argo worked on Project No. 215-99, Defendant Mashburn, in concert with the other Defendants, deliberately engaged in overzealous enforcement of ODOT regulations which caused delay in the completion of this project (¶ 15), and caused Argo to incur additional expenses; such conduct violates the Federal Civil Rights Act, 42 U.S.C. § 1983 (¶ 16).
Count II: Defendants intentionally and wrongfully prepared a false and misleading evaluation of Argo's performance on Project No. 203-98 (¶ 18), and made false, misleading comments regarding Argo's work and reputation to other ODOT districts (¶ 19), which violates the Federal Civil Rights Act, 42 U.S.C. § 1983 (¶ 20).
Count III: Defendants purposefully and with the intention to harm conducted overzealous inspections, dictated methods of performance, and generally interfered with Argo's performance of Project No. 63-914 (¶ 23), which violates the Federal Civil Rights Act, 42 U.S.C. § 1983 (¶ 25).
Count IV: Defendants deliberately deprived Argo of a contract by excluding Argo from a bid on Project No. 990184 (¶ 29), which violates the Federal Civil Rights Act, 42 U.S.C. § 1983 (¶ 30).
Count V: Defendant ODOT has maintained a policy relative to the conduct of Defendants that exhibits indifference to the constitutional rights of Argo (¶ 32), and violated these rights, which violates the Federal Civil Rights Act, 42 U.S.C. § 1983 (¶ 34).
Count VI: Defendants acted in concert to threaten, coerce, and retaliate against Argo because of the nationality of the owner Larry Frangos (¶ 36), which violates the Federal Civil Rights Act, 42 U.S.C. § 1983 (¶ 37).
Count VII: Defendants' conduct was motivated by bad faith desire and personal hatred and to cause Argo to go out of business (¶ 39).
Count VIII: Defendants' conduct constituted disparate treatment (¶ 42), since Defendants treated Argo differently from other bridge painting contractors (¶¶ 43-68).
ODOT did not have a Project No. 63-914 in Summit County. BSP did serve as bridge painting subcontractor under Project No. 613-94. See ECF No. 46, fn 8.
ODOT did not have a Project No. 63-914 in Summit County. BSP did serve as bridge painting subcontractor under Project No. 613-94. See ECF No. 46, fn 8.
Defendants filed an Amended Motion for Summary Judgment on June 26, 2002, stating that 1) certain claims of violations of civil rights are barred by the statute of limitations; 2) Plaintiff Larry Frangos cannot assert claims for violations of civil rights of corporations in which he holds an ownership interest; and 3) the claims against each of the Defendants as individuals are barred by the defense of qualified immunity. ECF No. 46, at 2.
Defendants filed the initial Motion for Summary Judgment on June 17, 2002. ECF No. 29.
At a Case Management Conference conducted on January 2, 2002, Argo was granted leave to file an Amended Complaint to set forth facts identifying the specific acts of specific Defendants which allegedly constitute violations of its rights. It is still quite difficult, however, to discern which factual allegation relates to each individual, as well as which specific constitutional right Argo alleges was being violated in each count of the Amended Complaint. However, Defendants attempted to correlate each count/allegation with a specific constitutional violation. ECF No. 46, (Defendants' Amended Motion for Summary Judgment). In Argo's "Response to Defendants' Amended Motion for Summary Judgment" Argo did not object to any of the correlations; therefore Argo has conceded that the correlations are accurate. ECF Nos. 48; 64.
At the Case Management Conference held on March 18, 2002, the Court gave both parties the opportunity to proceed with discovery but limited it to the issue of qualified immunity. Furthermore, the Court stated that if the parties could not obtain affidavits from other contractors then they could file brief depositions. Both parties had ample time to conduct discovery.
While Plaintiffs have made reference, in several pleadings to a desire to conduct discovery ( See ECF Nos. 48; 64), Plaintiffs have never moved for an extension of time in which to conduct additional discovery nor have they identified what discovery would be relevant to the issue of qualified immunity.
Before undertaking the qualified immunity analysis, the Court will examine Defendants' statute of limitations and standing claims.
III. STATUTE OF LIMITATIONS
A district court's determination that a complaint was filed within the applicable statute of limitations is a conclusion of law. Tolbert v. State of Ohio Dep't of Transp., 172 F.3d 934, 938 (6th Cir. 1999). In Ohio, the two-year statute of limitations contained in O.R.C. § 2305.10 applies to claims brought pursuant to 42 U.S.C. § 1983. LRL Properties v. Portage Metro Housing Authority', 55 F.3d 1097, 1105 (6th Cir. 1995). Ordinarily, the limitations period starts to run "when the plaintiff knows or has reason to know of the injury which is the basis of his action." Sevier v. Turner, 742 F.2d 262, 273 (6th Cir. 1984). However, Argo urges the Court to consider all of its claims, spanning several years, under a "continuing violation" theory. LRL Properties, 55 F.3d at 1105. The doctrine of continuing violation tolls the relevant statute of limitations. Paschal v. Flagstar Bank, 295 F.3d 565, 572-573 (6th Cir. 2002). This theory has been applied in only two narrow instances — "where there is some evidence of present discriminatory activity giving rise to a claim of a continuing violation," and where there is evidence of "a longstanding and demonstrable [over-arching] policy of discrimination." Dixon v. Anderson, 928 F.2d 212, 216-217 (6th Cir. 1991). Courts have been extremely reluctant to apply the continuing violation theory outside the context of Title VII claims. LRL Properties, 55 F.3d at 1105 n. 3. Based on Baker v. F F Inv. Co., 489 F.2d 829, 836 (7th Cir. 1973), the Sixth Circuit has adopted a three-part inquiry for determining whether a continuing violation exists. Kuhnle Brothers, Inc. v. County of Geauga, 103 F.3d 516, 522 (6th Cir. 1997), followed by Tolbert v. State of Ohio Dep't Transp., 172 F.3d 934 (6th Cir. 1999) First, the defendant's wrongful conduct must continue after the precipitating event that began the pattern. Second, injury to the plaintiff must continue to accrue after that event. Finally, further injury to the plaintiff must have been avoidable if the defendant had at any time ceased her wrongful conduct. Tolbert, 172 F.3d at 940. However, "[a] continuing violation is occasioned by continual unlawful acts, not continual ill effects from an original violation." Tolbert, 172 F.3d at 940 (quoting National Advertising Co. v. City of Raleigh, 947 F.2d 1158, 1166 (4th Cir. 1991)). As a basis for dismissing Argo's § 1983 claims, Defendants argue that Count III and some incidents referred to in Count VIII that arose prior to July 6, 1999 are time barred.
The Sixth Circuit held that the deprivation of a trucking company's liberty interest in intrastate travel was a "continuing violation." Kuhnle Brothers, Inc., 103 F.3d at 522.
The Sixth Circuit concluded that approval of an environmental impact statement did not create a "continuing violation" but a single discrete event. Tolbert, 172 F.3d at 940.
A. COUNT III
Count III of the Amended Complaint alleges that Defendants conducted "overzealous inspections, dictated methods of performance and in general interfered with the performance of Plaintiffs contract" on ODOT's Project No. 613 (94). Amended Complaint, ("Am. Compl.") ¶ 23. Defendants submitted evidence that the contract for Project No. 613(94) was entered on September 22, 1994 and the work was accepted by ODOT on October 30, 1997. ECF No. 43, Affidavit of Anthony Pamer (" Pamer Aff."),¶¶ 17, 20. Plaintiff Bay State Painting ("Plaintiff BSP") finished the bridge painting work in October, 1996. Id., ¶¶ 24, 25.
The allegations in Count III against Defendants fail to satisfy the Kuhnle test. Under the first prong of the Kuhnle test Argo must establish that Defendants' wrongful conduct continued after a precipitating event. The Sixth Circuit found a continuing violation when Kuhnle Brothers Trucking was forced to abide by an invalid traffic ban on each day that the resolution remained in effect. Kuhnle, 103 F.3d at 522. Subsequently, the Sixth Circuit held that the approval of an environmental impact statement did not create a "continuing violation" but a discrete event. Tolbert, 172 F.3d at 940. In the instant case, Defendants' inspections and enforcement of contract specifications ended with the completion of Project No. 613(94). Here, Defendants' actions constitute a single, discrete event. Furthermore, Plaintiff BSP sought and was awarded monetary compensation for its injury in binding arbitration. Count III fails to meet the second prong, for once the project was completed there was no continuing injury to Argo from the inspections. As to the third prong of the Kuhnle test, it also cannot be met by Argo, for Defendants' inspections of Project No. 613(94) was not a continuing course of conduct.
Argo next argues that it has alleged bad faith and malice and "this cause of action should allow events taking place more than 2 years ago to be considered by the Court in the determination of punitive damages." ECF No. 64, at 3. However, Argo does not cite any controlling authority which demonstrates that this Court must consider events that are time barred in calculating punitive damages. Therefore, Count III is dismissed because it is time barred.
B. COUNT VIII
The following analysis, for establishing a continuing violation theory, discusses the events prior to July 6, 1999. There is evidentiary support that some of the claims contained in Count VIII happened after July 6, 1999 and therefore are not time-barred. Am. Compl. ¶¶ 58-68.
The conduct of "each government official must be judged on the basis of his or her own conduct, intent and position." Poe v. Haydon, 853 F.2d 418, 427 fn. 5 (6th Cir. 1988). In several paragraphs of the Amended Complaint, Argo refers to an incident without naming any of the Defendants (¶ 51), or refers to a named person or an unnamed person who is not a party to this lawsuit. See Am. Compl. ¶¶ 43-44 and 54-56. The Court did not consider the above paragraphs in its analysis for Count VIII. On the other hand, Argo uses the phrase "other Defendants" throughout the Amended Complaint. The Court will not try to second guess which individual Defendants make up the category of "other Defendants." If an individual Defendant was named with the category of "other Defendants" the Court based its analysis on the individual Defendant only. See Am. Compl. ¶¶ 46-49.
Analogous to the instant case is LRL Properties v. Portage Metro Housing Authority, where property owners sued the Portage Metropolitan Housing Authority under § 1983 for arbitrarily enforcing housing quality standards and denying the owners' proposal for financial assistance. 55 F.3d at 1097-1103. The LRL plaintiffs asserted a "continuing violation" theory so that the statute of limitations would be extended. Id. at 1105. The LRL plaintiffs alleged that the following claims, which occurred two years prior to the filing date, tolled the statute of limitations: 1) defendants' 1989 proposal for converting the Section 8 Moderate Rehabilitation Program purposefully excluded plaintiffs; 2) defendants proposed a secret joint venture where a third party would purchase Phase II of Kenwood Courts at a depressed price; 3) defendants did not permit plaintiffs to benefit from the 1989 conversion plan; 4) defendants made a number of malicious and knowingly false communications about plaintiffs; 5) defendant Smith intentionally refused to give plaintiffs the rent increases; 6) defendants embarked upon a campaign of arbitrary and capricious enforcement of housing quality standards against plaintiffs; 7) defendant Smith and inspectors imposed their own arbitrary standards and invented violations by plaintiffs; 8) defendant Smith and other inspectors held plaintiffs to a more rigorous standard than other similarly situated property owners; 9) defendants weakened plaintiffs' financial standing by providing plaintiffs' tenants with alternative financing assistance and encouraging the tenants to move; 10) before the publication for applications defendants had already decided that plaintiffs' application would be rejected; 11) defendants did not follow the law, regulations, and internal polices thereby assuring that plaintiffs would not receive financial assistance; 12) the Board purposefully rejected plaintiffs' proposal; and 13) plaintiffs were denied the right to appeal the Board's rejection. Id. at 1101-03. The Sixth Circuit held that the LRL plaintiffs could not establish a continuing violation. Id. at 1106. The court explained that "plaintiffs are complaining of a series of discrete and separate acts that, at best, are separate incidents of discrimination and are not sufficient, even when the plaintiffs' pleadings are liberally construed, to establish an `over-arching policy of discrimination.'" Id.
In the instant case, Argo alleges that the following claims, which occurred two years prior to the filing date, toll the statute of limitations:
DEFENDANT CRISH
In 1994, Defendant Crish allegedly made a verbal remark about Argo and conducted an unexpected inspection. Am. Compl. ¶ 57. In 1995, Defendant Crish allegedly directed Argo to shut down. ECF No. 58, Affidavit of Larry Frangos (" Frangos Aff."), ¶ 14. In 1998, Defendant Crish allegedly made a verbal remark about Argo's work. Am. Compl.¶ 53.
DEFENDANT MASHBURN
Argo alleges that in 1990 Defendant Mashburn failed to notify Argo that they would be in violation of the EPA/OSHA mandate. Frangos Aff. ¶ 27. In 1994, Defendant Mashburn allegedly made a verbal remark about Larry Frangos. ECF No. 61, Affidavit of George Makris ("Makris Aff."), ¶ 3. In 1995, Defendant Mashburn allegedly directed Argo to shut down. Am. Compl. ¶ 53. On Project 613 (94) Defendant Mashburn oppressively inspected the painting job by Argo. Frangos Aff. ¶ 26.
DEFENDANT MORAR
Argo alleges that in 1992-1993 Defendant Morar mandated that Argo continually re-blast the bridge surface and shut down the project for containment structure and tarps to be reset. Am. Compl. ¶¶ 46-47. Based on the deliberate actions of the Defendant Morar, Argo spent 3 days blasting and painting 400 square feet in 1995. Am. Compl.¶ 49. Argo alleges that in 1996 Defendant Morar refused to accept Argo's work, and required Argo to re-blast the same area several times and paint the bridge again. Am. Compl.¶ 48. During early August 1996, Defendant Morar shut down the operations of Argo, and demanded that Argo redo containment, and move and reset equipment. Am. Comp. ¶ 50.
DEFENDANT PAMER
Argo alleges that it met with Defendant Pamer and requested that Defendant Mashburn not be the inspector for a project. Frangos Aff.¶ 12. In 1995, Defendant Pamer allegedly directed Argo to shut down. Am. Compl.¶ 53.
DEFENDANT PARADISE
Defendant Paradise was involved in the competitive bidding process for Project No. 184 (99). Frangos Aff.¶¶ 49-52.
DEFENDANT ROSSBACH
Defendant Rossbach's evaluation dated June 24, 1999 contained an allegation that Plaintiff BSP had submitted fraudulent documentation. § Frangos Aff.¶ 29. However, Plaintiff BSP appealed the evaluation, and the performance evaluation was modified. Id.
Argo alleges that in 1990 Defendants failed to notify Argo that it would be in violation of the EPA/OSHA mandate. Am. Compl. ¶ 45. In 1996 Defendants inspected the blast cleaning and painting by one of the Argo Plaintiffs on a bridge. Am. Compl. ¶ 51.
In paragraph 45 Argo alleges that ODOT conducted cruel and severe inspections; that ODOT did not subject other contractors to this type of harassment; and that ODOT shut down all open air sandblasting bridges except the operations of Argo. ODOT is not a party to this lawsuit. Therefore, the Court only addresses the claims against Defendants.
In the Amended Complaint Argo uses the word "Defendants" in paragraphs 45 and 51. The Court assumes that Argo is referring to all of the Defendants.
In paragraph 45 Argo alleges that ODOT conducted cruel and severe inspections; that ODOT did not subject other contractors to this type of harassment; and that ODOT shut down all open air sandblasting bridges except the operations of Argo. ODOT is not a party to this lawsuit. Therefore, the Court only addresses the claims against Defendants.
According to the record, Defendants' acts are discrete and separate incidents of individuals that occurred on different projects and at different times. No matter how favorably construed, the facts pled by Argo cannot establish a continuing injury or an "over-arching policy of discrimination." Janikowski v. Bendix Corp., 823 F.2d 945, 948 (6th Cir. 1987); See LRL Properties, 55 F.3d at 1106. Therefore, all claims with respect to alleged incidents occurring prior to July 26, 1999 are time-barred.
IV. STANDING OF LARRY FRANGOS
Standing is "the threshold question in every federal case." Coyne v. American Tobacco Co., 183 F.3d 488, 494 (6th Cir. 1999) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). To satisfy the standing requirement of Article III to the United States Constitution, the plaintiff "must have suffered some actual or threatened injury due to the alleged illegal conduct of the defendant; the injury must be `fairly traceable' to the challenged action; and there must be a substantial likelihood that the relief requested will redress or prevent the plaintiffs injury." Coyne, 183 F.3d at 494 (citing Valley Forge Christian College v. Americans United for Separation of Church State, Inc., 454 U.S. 464, 472-73 (1982)). The plaintiff bears the burden of demonstrating standing, and must do so with specificity. Coyne, 183 F.3d at 494.
Generally, a shareholder does not have standing to maintain an action under § 1983 for damages suffered by the corporation. Quarles v. City of East Cleveland, 202 F.3d 269, No. 99- 3050, WL 1336112, **3 (6th Cir. Dec. 20, 1999) (citing Smith v. Martin, 542 F.2d 688, 690 (6th Cir. 1976)); see also Canderm Pharmacal Ltd v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 602-03 (6th Cir. 1988). A "corporation alone, and not its stockholders. . ., has a right to recovery, even though in an economic sense real harm may well be sustained as the impact of such wrongful acts bring [sic] about reduced earnings, lower salaries, bonuses, injury to general business reputation, or diminution in the value of ownership." Canderm Pharmacal, Ltd, 862 F.2d at 603 (citing Schaffer, et al. v. Universal Rundle Corp., 397 F.2d 893, 896 (5th Cir. 1968). Even the sole shareholder of a corporation may not maintain such an action. Canderm Pharmacal Ltd, 862 F.2d at 603 (quoting Schaffer, 397 F.2d at 896). A shareholder may nevertheless maintain a § 1983 action if she can establish that she directly suffered an injury in her individual capacity due to the defendant's illegal conduct. See Kush v. American States Ins. Co., 853 F.2d 1380, 1383 (7th Cir. 1988).
While a shareholder may bring a derivative suit on behalf of the corporation for an injury caused to the corporation, that is not the situation in the instant case. Plaintiff Larry Frangos ("Frangos") must therefore establish a separate basis for standing; he must show that Defendants' actions directly caused him individual harm. Coyne, 183 F.3d at 494. Frangos asserts that Defendant Mashburn's actions caused harm to him individually. ECF No. 64, at 4. Frangos bases his claim solely on a statement contained in the affidavit of George Makris:
. . . Jim Mashburn, an employee of ODOT, directly told me that he could not wait until [BSP] "got on the job, so he could burn the owners, Mr. Frangos and Mr. Ginnis, and the company to such an extent that they would never work again.ECF No. 61, ¶ 3. Defendants contend that Frangos does not have standing to assert a claim for individual harm because Frangos has failed to establish that Defendants in fact violated his personal rights, and that he has not plead any facts indicating that Frangos in fact suffered distinct, personal injuries. ECF No. 46, at 13.
Count VI of the Amended Complaint states "[a]t all times relevant to this Complaint, Defendants acted in concert to threaten, coerce, and retaliate against Plaintiffs because of the nationality of their owner, [Larry] Frangos." ECF No. 17, at 9. However, the Court need not address this portion of the claim, since Frangos conceded at the Case Management Conference that many other contractors were Greek Americans and that his nationality is not an issue in the case. Frangos has not argued this theory and has not alleged any specific conduct of this nature.
At the time that Defendant Mashburn made this statement to George Makris, Makris was a foreman for a different painting company that was doing work for ODOT in Summit County. ECF No. 61, ¶ 3.
The most that the Court can glean from Makris' statement is that Defendant Mashburn may have had a bad relationship with Frangos. However, the Court cannot infer from this evidence that Defendant Mashburn did in fact act in a way to cause any sort of hardship to Frangos. Based on the entire record, the Court concludes that Frangos has not established a legally cognizable claim involving individual harm caused by Defendant Mashburn or any of the other Defendants. Accordingly, Frangos lacks standing, and therefore his claim is dismissed.
V. QUALIFIED IMMUNITY
The doctrine of qualified immunity is an affirmative defense that shields public officials from being held personally liable for acts performed within the scope of their employment. Harlow v. Fitzgerald, 457 U.S. 800 (1982); see also Anderson v. Creighton, 483 U.S. 635 (1987). Qualified immunity provides that public officials performing discretionary functions are "shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person [official] would have known." Harlow, 457 U.S. at 818; Jackson v. Leighton, 168 F.3d 903, 909 (6th Cir. 1999). Qualified immunity protects public officials from the harsh burden of litigation, and thus the threshold immunity question should be addressed as early in the litigation as possible. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); Poe v. Haydon, 853 F.2d 418, 424 (6th Cir. 1988). Before determining whether the right violated was clearly established or examining the reasonableness of a defendant's conduct in relation thereof, the Court must decide as a preliminary matter whether Argo has asserted a violation of a constitutional or statutory right and if Defendants violated that right. Jackson, 168 F.3d at 909 (citing Siegert v. Gilley, 500 U.S. 226, 232 (1991)). If the Court finds that no right was in fact violated, then the Court need not inquire further into whether Defendants satisfy the remaining elements of the qualified immunity doctrine. Saucier v. Katz, 533 U.S. 194, 201 (2001).
A defendant bears the burden of pleading qualified immunity but the plaintiff must show that a defendant is not entitled to qualified immunity. Blake v. Wright, 179 F.3d 1003, 1007 (6th Cir. 1999). In Kennedy v. City of Cleveland, the Sixth Circuit explained:
Where a defendant official is entitled to qualified immunity the plaintiff must plead facts which, if true, describe a violation of a clearly established statutory or constitutional right of which a reasonable public official, under an objective standard, would have known. The failure to so plead precludes a plaintiff from proceeding further, even from engaging in discovery, since the plaintiff has failed to allege acts that are outside the scope of the defendant's immunity.Kennedy, 797 F.2d 297, 299 (6th Cir. 1986), cert. denied, sub nom., Hanton v. Kennedy, 479 U.S. 1103 (1987).
Argo argues that Defendants are not entitled to qualified immunity. As a basis for this argument Argo cites McBride v. Village of Michiana, 100 F.3d 457 (6th Cir. 1996). Argo's reliance on McBride is misplaced. The Sixth Circuit held that the village officials violated McBride's First Amendment rights and therefore were not entitled to qualified immunity. Id. at 461.
In the Amended Complaint Argo alleges a violation of a property right, unconstitutional taking of property, equal protection, procedural and substantive due process and disparate treatment. ECF No. 17, ¶¶ 11-13. Defendants contend that, as a matter of law, Argo has failed to sustain their burden to prove violations of clearly established constitutional rights, and that therefore Defendants have qualified immunity from liability under 42 U.S.C. § 1983. Argo counters that Defendants have violated Argo's constitutional rights and are not within the scope of the qualified immunity standard. Whether Defendants are entitled to qualified immunity is a question of law.
A. 42 U.S.C. § 1983 Claim
To prevail on a civil action under § 1983, a plaintiff must plead and prove that the defendants, acting under the color of state law, deprived him of a right secured by the Constitution and laws of the United States. Paul v. Davis, 424 U.S. 693, 700 (1976); Sutton v. Cleveland Bd. of Educ., 958 F.2d 1339, 1348 (6th Cir. 1992). Title 42 U.S.C. § 1983 provides in relevant part that:
Every person, who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof 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.
1. Procedural Due Process
The Due Process Clause of the Fourteenth Amendment prohibits a state from depriving individuals of "life or liberty or property without due process of law." Due process requires that no person be deprived of a constitutionally protected interest without proper notice and an opportunity to be heard. Cleveland Bd Educ. v. Loudermill, 470 U.S. 532, 541-542 (1985); Thomas v. Cohen, 304 F.3d 563, 576 (6th Cir. 2002). To establish a due process violation Argo must establish that it had a property interest, that Defendants deprived Argo of that property interest, and that the afforded process was less than that due. Vicory v. Walton, 721 F.2d 1062, 1063 (6th Cir. 1983), cert. denied 469 U.S. 834 (1984). The Supreme Court limited the use of § 1983 by holding that in cases involving deprivation of property without due process, a cause of action under § 1983 is not available if there exists a state remedy that comports with procedural due process. Parratt v. Taylor, 451 U.S. 527 (1981); Braley v. City of Pontiac, 906 F.2d 220, 225 (6th Cir. 1990). Argo has failed to identify a specific protected property interest. Presumably, Argo alleges that it was deprived of procedural due process when Defendants deprived Argo of a contract and payment for work that has been performed. Am. Compl. ¶¶ 16, 20, 25, 29-30, 34, 37 and various paragraphs throughout Count VIII.
Property interests subject to due process protection are not created by the Constitution but are created by state law. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Id.
a) COUNT IV: Entitlement to Contract
Presumably, Argo contends that it was denied a property right when Defendants allegedly excluded Argo from the bidding process when they were the second lowest bidder in an ODOT construction contract, and a higher bidder was awarded the contract. In Michigan Paytel Joint Venture v. City of Detroit, 287 F.3d 527, 539 (6th Cir. 2002), the Sixth Circuit stated that to establish a protected property interest in a bid on a governmental contract, plaintiff may show she was "awarded the contract and then deprived of it, or she may claim that state law granted the governmental entity limited discretion in awarding the contract, which the entity abused." Id. (citing United of Omaha Life Ins. Co. v. Solomon, 960 F.2d 31, 34 (6th Cir. 1992)). Argo cannot assert a property interest under the first test because its bid was never accepted, and therefore no contract was ever formed.
An ODOT committee decided to award the contract to North Star Painting instead of Argo. ECF No. 39 Affidavit of Jeffery Hisem ("Hisem Aff."), ¶ 29. More importantly, Argo has not submitted any evidence that establishes that any of the individual Defendants was a party to an ODOT contract, had the authority or responsibility to enter into contracts on behalf of ODOT or were involved in the decision making process for awarding a construction contract. As to the second test, Ohio Revised Code § 5525.01 provides that "[t]he director may reject any or all bids . . . if the director awards the contract, the director shall award it to the lowest competent and responsible bidder." O.R.C. § 5525.01. Ohio courts are "reluctant to substitute their judgment for that of city officials in determining which party is the "lowest and best bidder'." Cedar Bay Const., Inc. v. City of Fremont, 50 Ohio St.3d 19, 21 (Ohio 1990). "The rule is generally accepted that, in the absence of evidence to the contrary, public officers, administrative officers and public boards . . . will be presumed to have properly performed their duties and not to have acted illegally but regularly and in a lawful manner. All legal intendments are in favor of the administrative action." Id. Argo does not offer facts to establish that ODOT's Director of Transportation abused his discretion in awarding the contract, or that any of the Defendants were directly involved in the denial of a contract. As a consequence, Argo cannot have a legitimate proprietary interest in the monetary value of the contract. Argo simply had a unilateral expectation for the contract and an abstract desire for it. Bd. of Regents of State Colleges, 408 U.S. at 577. Argo has not cited any legal authority that supports the notion that an expectation of a second lowest bidder in an ODOT contract constitutes a property interest. Although Argo insists that Defendants violated its Fourteenth Amendment rights, Argo fails to identify exactly what process was due and not provided. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. at 542-43.
b) COUNT I: Entitlement to Payment
Argo alleges that it was denied a protected property interest in receiving money damages for excess work performed for ODOT under a contract or as a subcontractor. Argo's money damage claims concern overzealous inspection, excess blasting, overzealous enforcement of ODOT rules and regulations, and excess drying time between coats of paint. Am. Compl. ¶¶ 14-16. Argo has not cited any legal authority that establishes that additional costs of performance caused by delays is a constitutionally protected property interest.
Even if Argo had acquired a protected property interest in money damages stemming from a contract or subcontract with ODOT, the Sixth Circuit has held that the failure of a plaintiff in a § 1983 action to plead and prove the inadequacy of state and administrative remedies is a bar to claims based on procedural due process. Mansfield Apartment Owners Ass'n v. City of Mansfield, 988 F.2d 1469, 1475 (6th Cir. 1993) (emphasis added); Vicory v. Walton, 721 F.2d 1062, 1063-64 (6th Cir. 1983). Argo is well aware of the procedure to follow in order to be made whole for the alleged loss of money. See Am. Compl., at 7. If Argo was underpaid, they could have sought additional compensation before the ODOT Director's Claim Board or Review Board. On Project No. 613-94, Plaintiff BSP performed a bridge painting contract. Am. Compl., ¶¶ 21-24. Plaintiff BSP filed a claim for additional compensation against Defendants. ECF No. 20, Ex. B. On January 13, 1999, Richard P. Turner issued a "Final Report of Arbitration Proceeding to Resolve Claim of Bay State Painting" and awarded Plaintiff BSP $318,212.00 in additional compensation. Id. If Argo did not want to pursue the avenue of arbitration, the State of Ohio has a forum whereby the State may be sued for monetary damages. O.R.C. § 2743 et seq. Argo alleges they have availed themselves of various state laws and remedies regarding the actions of Defendants . . . [and] such remedies are insufficient to redress the claimed wrongs and are totally insufficient to compensate Plaintiffs for the claimed losses and damages resulting from Defendants' conduct." ECF No. 48, at 8. Argo has not offered any facts to support that it availed itself of the Review Board procedures, arbitration procedures, or state procedures and has not proven any significant deficiencies in these available remedies. Vicory, 721 F.2d at 1063. For all these reasons, summary judgment is GRANTED with respect to Argo's procedural due process claim.
2. Substantive Due Process
In order to state a § 1983 claim under the substantive due process clause, a plaintiff must show either: 1) a violation of a constitutional guarantee or 2) state action that shocks the conscience. Braley v. City of Pontiac, 906 F.2d 220, 225-26 (6th Cir. 1990). While property interests protected under procedural due process are derived from state law, substantive due process rights are created only by the United States Constitution. Charles v. Baesler, 910 F.2d 1349, 1354 (6th Cir. 1990). Argo's complaint alleges no violation of a specific constitutional guarantee. Argo does not cite a single federal right or statute upon which it bases the substantive due process claim. The Court finds, as a matter of law, that there is no constitutionally-viable property interest in the expectation of money or in the possibility of a future contract.
Under the substantive due process analysis the validity of the Defendants' actions generally necessitates a determination of whether the Defendants' conduct "shocks the conscience." Rochin v. California, 342 U.S. 165 (1952). Argo also argues that Defendants actions "shock the conscience" because Defendants "acted so egregiously that they misused their power to intentionally harm" Argo. ECF No. 48, at 8. As a basis for this argument, Argo cites Braley v. City of Pontiac, 906 F.2d 220, 225-26 (6th Cir. 1990). In Braley, the Sixth Circuit discussed the prudence of applying this standard: "[a]pplying the `shock the conscience' test in an area other than excessive force, however, is problematic. [T]he `shock the conscience' test is not as uniformly applied to cases where excessive force or physical brutality is not the basis of the claim." 906 F.2d 220 at 226. "The status of the `shock the conscience' test in contexts other than excessive force is uncertain." Id. Argo has not pointed to any legal authority that the "shock the conscience" test should be applied to contract matters between ODOT and its contractors or subcontractors. Accordingly, summary judgment is GRANTED with respect to the substantive due process claim.
3. COUNTS I, VII, and VIII: Equal Protection Claim.
Under 42 U.S.C. § 1983 a civil action may be maintained based on a violation of the Equal Protection Clause. The Equal Protection Clause proscribes arbitrary or unreasonable differential treatment between similarly situated individuals based on their membership in a protected class. Albright v. Oliver, 975 F.2d 343, 348 (7th Cir. 1992), aff'd, 510 U.S. 266 (1994). Argo alleges that the Defendants treated them differently from other contractors performing the same type of bridge painting work for ODOT. ECF No. 17. The prototypical equal protection claim involved discrimination against people based on their membership in a vulnerable class. Futernick v. Sumpter Township, 78 F.3d 1051, 1056 (6th Cir. 1996). Argo has failed to establish that the enforcement of ODOT regulations was based on the prohibited discriminatory motive of race, nationality, religion, or gender. Argo stated that one of the Plaintiffs is of Greek nationality, but Argo has not plead facts indicating that Defendants' conduct was based on this nationality.
At the Case Management conference, held on January 22, 2002 Argo admitted that many other contractors were Greek Americans and that it was not pursuing a claim based on the theory of national origin discrimination. Argo has not argued this theory and has not alleged any specific conduct of this nature.
Argo does not claim that Defendants are punishing them for exercising a constitutional right. Rather, Argo in Count VIII alleges that Defendants' conduct constituted disparate treatment, since Defendants treated Argo differently from other bridge painting contractors. Am. Compl. ¶¶ 42-68. As a basis for this argument, Argo cites Village of Willowbrook v. Olech ("Olech"), 528 U.S. 562, 564-65 (2000). In Olech, the Supreme Court recognized a "class of one" equal protection claim where the plaintiff did not allege membership in a class or group. Olech, 528 U.S. at 564-65. The Supreme Court held that plaintiff, a class of one, could still bring a claim for equal protection even though the discrimination was not class-based, where plaintiff alleges intentionally different treatment from others similarly situated and there is no rational basis for the different in treatment. Id. at 564.
"Furthermore, `there is a strong presumption that the state actors have properly discharged their official duties, and to overcome that presumption the plaintiff must present clear evidence to the contrary; the standard is a demanding one'." Gardenhire v. Schubert, 205 F.3d 303, 319 (6th Cir. 2000) (quoting Stemler v. City of Florence, 126 F.3d 856, 873 (6th Cir. 1997)). To establish that it was similarly situated to other bridge contractors Argo must show that the material facts are the same. Argo has not provided factual details of contracts, number of crew members, type and capacity of equipment and supplies, physical conditions of the bridges and rust encountered, traffic conditions, and that other contractors' work was being inspected by the same ODOT supervisor and/or ODOT inspector.
Argo mentions several contractors: Americo, Americoat, North Star, Vemus, Vemis, (Defendants mention Vimas), Velotta, and Hazemihali's Painting. The Court examined the record and could not find which of the mentioned contractors Argo contends is similarly situated and which contractors were allegedly permitted to perform work in violation of contract specifications which were applied against Argo.
Argo was given leave to file an amended complaint reasserting its equal protection claim and leave to amend the affidavits. However, after reading Argo's complaint, affidavits, and briefs, it was unclear to which project, location, date and/or individual Defendant that Argo is referring to.
Even if Argo could establish that it is similarly situated to other bridge contractors, Argo has not demonstrated that Defendants did not have a rational basis to charge Argo with a violation. Olech, 528 U.S. at 564; Alsenas v. City of Brecksville, 221 F.3d 1333, No. 99-4063, 2000 WL 875717 (6th Cir. June 19, 2000). Argo has submitted several affidavits, photographs, and journal notes to support its conclusion that other contractors were not required to abide by contract specifications. ECF No. 58, Exs. A-F. Argo contends that the photographs and journal notes establish that other contractors: 1) did not have dust collectors; 2) did not have placement barriers; 3) did not have shower or hand facilities; 4) applied several coats of paint within 10 hours; 5) had lead waste escaping from the blast site; 6) had insufficient paint thickness; and 7) painted in the rain or temperatures less than 50 degrees F. ECF NO. 58, ¶ 20. The majority of the photographs were taken of Vimas Painting Co. ("Vimas"), a competitor who Argo alleges was given more favorable treatment. Defendants submitted the project plans and contract between Vimas and ODOT which clearly specify the requirements for a SSPC-10 documentation and establish that compliance or non-compliance of this standard was documented daily; to maintain all existing lanes to be open to traffic lines during specific hours; and the elapsed time between coats was to be in accordance with the manufacturer's recommendations. ECF No. 71, Exs. 1-3. Furthermore, the photographs and journal notes do not establish that Argo was similarly situated to Vimas.
The xerox copies of the photographs which were filed do not give a clear picture. They do not show whether or not a dust collector was in place, do not show if blasting of steelwork was being performed, and do not show how many coats of paint were applied or the thickness of the coat of paint.
Defendants also submitted project plans and contracts where Argo was a subcontractor for Gaglione Construction, ECF No. 40, ¶¶ 13-15, Exs. A-D, Velotta Company, ECF No. 43, ¶¶ 15-21, Exs. B-F, and 5-D Construction, ECF No. 43, ¶¶ 40-43, Exs. P-R.
Count I of the Amended Complaint alleges that from approximately September-November 1999 when Argo worked on Project No. 215-99, Defendant Mashburn, in concert with the other Defendants, deliberately engaged in overzealous enforcement of ODOT regulations which caused delay in the completion of this project, and caused Argo to incur additional expenses. Am. Compl. ¶ 15, see also Frangos Aff. ¶¶ 21-28. Based on the discussion, supra, Argo has not set forth evidence which establishes that Defendant Mashburn, while he was the inspector for Argo, was also the inspector for a similarly situated contractor; that Defendant Mashburn did not enforce the project specifications for a similarly situtated contractor; and that Defendant Mashburn did not have a rational basis for enforcing Argo's project specifications.
The Court will not try and second guess which individual Defendants makeup the category of "other defendants."
Argo's claim for additional compensation was discussed in part V. A.1.(b), supra.
Count VII alleges that Defendants' conduct was motivated by a bad faith desire and personal hatred to cause Argo to go out of business. Am. Compl.¶ 39. As a basis for this argument, Argo cites Village of Willowbrook v. Olech ("Olech"), 528 U.S. 562, 564-65 (2000); and Futernick v. Sumpter Township, 78 F.3d 1051, 1056 (6th Cir. 1996). Argo's reliance on the Justice Breyer's concurrence in Olech is misplaced. The majority opinion of the Supreme Court states "[w]e, therefore, affirm the judgment of the Court of Appeals, but do not reach the alternative theory of "subjective ill will' relied on that court." Id. at 565.
Justice Breyer's concurrence was in response to the suggestion that every zoning decision would be turned into a constitutional claim. Id. at 565-66. Justice Breyer states "[i]n my view, the presence of that added factor [vindictive action, illegitimate animus, or ill will] in this case is sufficient to minimize my concern about transforming run-of-the-mill zoning cases into cases of constitutional rights." Id. at 566. Argo assumes that Justice Breyer would adopt the same analysis to a case arising out of the enforcement of contract specifications.
Likewise, Argo's selection of one quote, "regulation out of personal dislike or vendetta is repugnant to the American tradition of the rule of law," is misplaced. Futernick, 78 F.3d at 1059. In Futernick, the Sixth Circuit stated that selective enforcement of a law maliciously and in bad faith, but without intent to harm a protected group or punish a person for the exercise of a constitutionally protected right, was insufficient to state a § 1983 claim. Futernick, 78 F.3d at 1058-60. Argo has not submitted evidentiary support that Argo is a member of a protected group or that Defendants were punishing Argo for exercising a constitutionally protected right.
In conclusion, Argo has failed to plead facts sufficient to support its equal protection argument. Therefore, summary judgment is GRANTED with respect to Counts I, VII, and VIII.
4. Count II: Section 1983 Injury to Business Reputation
Argo asserts that Defendants "contacted other districts of ODOT and informed them that Plaintiff [Argo] is not to be trusted and is `no good' and made other false and misleading comments concerning Plaintiffs [Argo] business reputation." ECF No. 17, ¶ 19. Argo argues that "[o]ne's reputation is a significant, intensely personal possession that the law strives to protect . . . the more power bureaucrats exercise over our lives, the more some sort of ultimate responsibility should tie for their most outrageous conduct." ECF No. 48, at 3. As a basis for this argument, Argo cites Chamberlain v. Mathis, 729 P.2d 905 (Ariz. 1986). The Arizona Supreme Court analyzed a defamation case brought under state law and what type of immunity is available and when immunity applies Id. at 908-913. The Arizona court did not analyze if defendants violated a constitutional right. Id.
The Supreme Court has stressed that § 1983 is not an avenue for redress of any and all possible tort claims against the government, and that there exists "no constitutional doctrine converting every defamation by a public official into a deprivation of liberty within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment." Paul v. Davis, 424 U.S. 693, 702 (1979). The Supreme Court explained that a plaintiff cannot recover under § 1983 for injuries to his reputation alone; the alleged defamatory statements must also result in the deprivation of a constitutionally protected right or interest. Id. at 711-12. Defamation is a tort actionable under Ohio laws, but does not give rise to a constitutional deprivation. Siegert v. Gilley, 500 U.S. 226, 233 (1991) see Mertik v. Blalock, 983 F.2d 1353, 1362 (6th Cir. 1993) ("Defamatory publications, standing alone, do not rise to the level a constitutional claim, no matter how serious the harm to reputation"); Ferencz v. Hairston, 119 F.3d 1244 (6th Cir. 1997) (contractors had no protected property interest in remaining on a list of eligible contractors for city work). Argo has not discussed any controlling authority or any evidence that Defendants violated a constitutional protected interest or right. For all these reasons, summary judgment is GRANTED with respect to Count II.
5. Count VI: Section 1983 Conspiracy
In order to state a claim for conspiracy under, § 1983, the complaint must establish conspiracy in some detail and provide some factual basis supporting the existence of conspiracy. See Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987); Jaco v. Bloechle, 739 F.2d 239, 245 (6th Cir. 1984); Nedea v. Voinovich, 994 F. Supp. 910, 918 (N.D. Ohio 1998); Smith v. Johnston, 173 F.3d 430, 1999 WL 137619, at *3, (6th Cir. March 5, 1999). Conclusory statements unsupported by material facts are not enough to withstand a motion for summary judgment. Gutierrez, 826 F.2d at 1538-1539. The Sixth circuit explained:
When challenging the conduct of public officials exercising publicly conferred discretion, the plaintiff shoulders the additional burden of showing that qualified immunity should not shield the public officials from liability. Wegener v. City of Covington, 933 F.2d 390, 392 (6th Cir. 1991).
Courts have traditionally viewed conspiracy suits against public officials with suspicion and disfavor. Accordingly, pleading requirements governing civil conspiracies are relatively strict. Plagued by a large number of frivolous § 1983 suits, "federal courts have come to insist that the complaint state with specificity the facts that, in the plaintiffs mind, show the existence and scope of the alleged conspiracy.' Slotnick v. Staviskey, 560 F.2d 31, 33 (1st Cir. 1977), cert. denied, 434 U.S. 1077.Fisher v. City of Detroit, 4 F.3d 993, 1993 WL 344261, at **5, (6th Cir. Sept. 9, 1993). Argo asserts, "Defendants acted in concert to threaten, coerce, and retaliate against Plaintiffs [Argo] because of the nationality of their owner, Frangos." ECF No. 17, ¶ 36. Paragraph 40 states, "by aiding and abetting, and compelling the unlawful attempts to drive Plaintiffs [Argo] out of business." Argo's allegations are vague, conclusory and include no overt acts reasonably related to the promotion of an alleged conspiracy. Argo failed to identify any acts of Defendants which would link them to § 1983 conspiracy. Accordingly, summary judgment is GRANTED with respect to Count VI.
B. Unconstititutional Taking of Property under the Fifth Amendment
The Fifth Amendment to the United States Constitution prohibits governmental taking of private property "for public use without just compensation." The Fifth Amendment's Takings Clause is applicable to the states through the Fourteenth Amendment to the Constitution. Chicago, B.Q.R. Co. v. City of Chicago, 166 U.S. 226, 241 (1897). "If a state provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the just compensation clause until it [the owner] has used the procedure and been denied just compensation." Four Seasons Apartment v. City of Mayfield Heights, 775 F.2d 150, 151 (6th Cir. 1985) (emphasis added) (quoting Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 195 (1985)). Thus, before filing a § 1983 claim, the plaintiff must first show that she availed herself of state procedures for obtaining additional compensation, and was unsuccessful. Mansfield Apartment Owners Ass'n v. City of Mansfield, 988 F.2d 1469, 1478 (6th Cir. 1993); Hammond v. Baldwin, 866 F.2d 172, 179 (6th Cir. 1989). In Ohio, a party may bring an action for taking of private property either in the court of common pleas by way of mandamus, or in the court of claims in an action for money damages. See Nacelle Land Mgt. Corp. v. Ohio Dep't of Natural Resources, 584 N.E.2d 790, 792 (Ohio App. 10 Dist., 1989).
Argo asserts that Defendants did not compensate Argo for the additional expenses that it incurred while performing under ODOT project contracts or subcontracts, and that such actions constitute an unconstitutional taking of property under the Fifth Amendment. ECF No. 48 at 9. Argo further argues that it has exhausted all its remedies provided by the State. Id.
Argo's Amended Complaint does not explicitly invoke the takings clause of the Fifth Amendment, but asserts that "[D]efendants . . . have violated rights and privileges under the Fifth and Fourteenth Amendments . . . and have violated [Argo's] property rights protected under the Fifth and Fourteenth Amendments . . ." ECF No. 17 ¶ 11. Further, the Amended Complaint does not specify which actions of the Defendants violated-Argo's property rights protected by the Fifth Amendment Takings Clause. ECF No. 17. Therefore, the Court gleans the specifics of Argo's Takings Clause claim from Argo's Response to Defendants "Amended Motion for Summary Judgment, ECF No. 48, at 9.
Based on the discussion in part V. A.1.(b), supra, Argo has failed to establish that it had a protected property interest in the entitlement to payment of additional expenses incurred on projects with ODOT. Accordingly, the Court concludes that payment of additional expenses under the ODOT contracts and/or subcontracts does not constitute property within the meaning of the Fifth Amendment Takings Clause. The Court also finds that even if Argo's expectation of payments of these expenses did constitute a property interest, Argo still cannot establish a takings claim against Defendants, because Argo has not shown that it has first availed itself of state procedures for obtaining additional compensation. Williamson County Regional Planning Comm'n, 473 U.S. at 195. Accordingly, summary judgment is GRANTED in favor of Defendants with respect to Argo's Fifth Amendment claim.
The Court concludes Argo has not established a violation of its constitutional or statutory right by Defendants. Jackson v. Leighton, 168 F.3d 903, 909 (6th Cir. 1999). Therefore, the Court need not inquire further into whether Defendants satisfy the remaining elements of the qualified immunity doctrine.
COUNT V
On March 26, 2002, this Court granted Argo's motion to voluntarily dismiss the Ohio Department of Transportation and each named defendant in his official capacity. ECF No. 23. Accordingly, Count V, which names only ODOT, has been dismissed.
VI. Conclusion
Based on the foregoing, Defendants' Motion for Summary Judgment (ECF No. 46) is GRANTED with respect to Counts I, II, III, IV, VI, VII and VIII. To conclude this matter, the federal claim against ODOT alleged in Count V was previously dismissed without prejudice. ECF No. 23. This Memorandum of Opinion and Order dismisses with prejudice the claims alleged in Count I, II, III, IV, VI, VII, and VIII.