NOT RECOMMENDED FOR FULL

- TEXT PUBLICATION File Name: 17a0263n.06
Case No. 16

- 3946
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

STATE OF OHIO ex rel. JEFF FAULKNER , Individually and as Trustee of the Faulkner Family Trust Dated 3

- 22

- 95 and Relator , Plaintiffs

- Appellants ,

v.
CITY OF MIDDLETOWN, O HIO , Defendant

- Appellee

. ____________________________________/ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO

B efore : MERRITT, BATCHELDER, and CLAY, Circuit Judges.
M ERRITT , Circuit Judge. Plaintiff

- Appellant Jeff Faulkner alleges that the City of Middletown

— as part of a vague conspiracy against him

— violated his rights on two separate occasions. 1 First, he claims that the City’s decision to “downzone” a piece of real property that would later come to be owned by the Faulkner Family Trust amounted to a taking that required notice and compensation under both the United States Constitution and the Ohio Constitution. Second, he argues that the City is liable to him for malicious prosecution and abuse of process

1 In addition to the claims he brought in his personal capacity, Faulkner also sued the City in his c apacity as Trustee of the Faulkner Family Trust Dated 3

- 22

- 95

— which held title to the piece of real property at issue in Faulkner’s first set of claims

— as well as on behalf of the State of Ohio according to Ohio’s procedure for seeking compensation for a r egulatory taking. See Coles v. Granville , 448 F.3d 853, 861 (6th Cir. 20 06 ) ; Ohio Rev. Co de § 2731 .01.Case No. 16

- 3 946 , Ohio ex rel. Faulkner v. City of Middletown

- 2

- under Ohio law because City employees wrongfully arrested him and charged him with landlord theft o f rent. On the basis of those events, Faulkner brought nine claims against the City, seeking relief ranging from damages under 42 U.S.C. § 1983 to mandamus. T he district court granted summary judgment in favor of the City on all nine claims , and w e AFFIRM , relying largely on the district court’s well

- reasoned opi nion and order. Ohio ex rel. Faulkner v. City of Middletown , No. 1:15

- cv - 122, 2016 WL 3855203 (S.D. Ohio July 15, 2016). I. Zoning Claims The district court properly granted the City’s motion for summary judgment on Faulkner’s § 1983 claims for the City’s alleged violation of the Faulkner Family Trust’s rights to due process and equal protection under the United States Constitution . The essence of tho s e claims is that the City owed the Trust a duty to provide notice and an oppo rtunity to respond before downzoning the lot in question and to refrain from singling out the Trust’s property for disparate and discriminatory treatment. To prevail on either claim , Faulkner must show the Trust held a n interest in the property at issue w hen the zoning decision was made. Otherwise, there can be no finding that the Trust had the “legitimate claim of entitlement” to the property needed to support a procedural due process challenge , O’Donnell v. City of Cleveland , 838 F.3d 718, 730 (6th Cir. 2016) (quoting Bd. of Regents v. Roth , 408 U.S. 564, 577 (1972)) (internal quotation marks omitted), or that the Trust was “ intentionally treated differently from others similarly situated ” in violation of the Equal Protection Clause of the Fourteenth Ame ndment. 2
Davis v. Prison Health Servs. , 679 F.3d 433, 441 (6th Cir. 2012 ) (quoting Vill. of Willowbrook v. Olech , 528 U.S. 562, 564 (2000)) (internal quotation marks omitted).

2 Faulkner does not allege that he informed the City of his intent to acquire the prop erty at issue on behalf of the T rust before executing the document s of conveyance. Our decision might have been different if he had done so, but we do not opine on the result under that hypothetical.Case No. 16

- 3 946 , Ohio ex rel. Faulkner v. City of Middletown

- 3

- As the district court ably demonstrates, the property at issue was validly down zoned on August 20, 2013. Faulkner , 2016 WL 3855203 at *7

- 8 . It is undisputed that Faulkner did not agree to purchase the land at issue on behalf of the Trust until February 27, 2014 and that he did not close on the land until March 26, 2014. Id. at *3

. Since the Trust did not own the land at issue when the City duly amended the land’s zoning classification , Faulkner lacks standing to challenge that decision on the basis of procedural due process or equal protection. The district court also properly granted summary judgment on Faulkner’s § 1983 claims under the Ohio Constitution ’s due process and equal protection analogs . Even if the City’s
actions actually violated Faulkner’s rights under the Ohio Constitution, the district court properly awarded summary judgment to the City because relief under § 1983 is only available for violations of federal law. See Waters v. City of Morristown , 242 F.3d 353, 358

- 59 (6th Cir. 2001) (“ To prevail on a § 1983 claim, a plaintiff mu st establish t hat a person acting under color of state law deprived the plaintiff of a right secured by the Constitution or laws of the United
States. ”). Since Faulkner’s § 1983 claims under the Ohio Constitution assert only violations of state law, they were properly rejected by the district court. The remainder of Faulkner’s claims regarding the City’s zoning decision seek several types of relief

— damages, declaratory judgment, and mandamus

— but they are all based on the same basic theory: the City’s dec ision to zone the property at issue for light industrial use
amounts to a regulatory taking under the Takings Clause for which the City was required to pay “just compensation. ” U.S. Const. amend. V. The district court correctly reject ed each of those cla ims

. First, the property’s light

- industrial classification under the City’s zoning ordinance did

not amount to a “categorical” taking because it did not deprive the Trust of “all economicallyCase No. 16

- 3 946 , Ohio ex rel. Faulkner v. City of Middletown

- 4

- beneficial or productive use of [its] land.” Lucas v. S.C. Coastal Council , 505 U.S. 1003, 1015 (1992). Indeed, Faulkner indicated that he would “probably build a store and lock facility” if the City rejected his application for a zoning change . While the Trust might have obtained more economic benefit if the Ci ty had agreed to zone the parcel for commercial use, Faulkner’s alternative plan for the land proves that the present zoning ordinance permits the Trust to obtain

some economic benefit from the land. Accordingly, the district court properly denied mandamus and declaratory judgment on that claim. Nor did the property’s light

- industrial classification amount to a “ noncategorical ” taking
under the ad hoc test adopted by the Supreme Court in Penn Central Transportation Co. v. City of New York , 438 U.S. 104 (1978). We rely on the district court’s opinion on that point.
Faulkner , 2016 WL 3855203 at *11. Having correctly held that the property’s classification under the City’s zoning ordinance did not rise to the level of a constitutional ta king , the district court properly rejected Faulkner’s claims for “just compensation” under the Fifth Amendment.

II. Malicious Prosecution & Abuse of Process Claims Finally, the district court properly granted summary judgment to the City on Faulkner’s
claims of malicious prosecution and abuse of process. Ohio law generally immunizes municipalities from civil liability flowing from “loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political s ubdivision in connection with a governmental or proprietary function.” Ohio Rev. Code § 2744.02(A)(1). Exceptions to this general rule exist, but none expose municipalities to liability for the intentional torts of municipal employees. See Griffits v. Vi ll. of Newburgh Heights , No. 91428, 2009 WL 280376 , ¶ 26 (Ohio Ct. App. 2009) (“[W]e note that [Ohio] c ourts have generally held that because R.C. 2744.02(B) includes no specific exceptions for intentional torts, politicalCase No. 16

- 3 946 , Ohio ex rel. Faulkner v. City of Middletown

- 5

- subdivisions are immune from inte ntional tort claims. ” ). Specifically, Ohio courts have held that “no section of the [Ohio] Revised Code expressly imposes liability upon a public agency for . . . malicious prosecution . . . . ” Id. (collecting cases). Since both malicious prosecution an d abuse of process have intent elements, the district court correctly held that the City is immune from liability on both claims. Faulkner , 2016 WL 3855203 at *12

- 14. Faulkner’s reliance on Mayes v. City of Columbus , 664 N.E.2d 1340 (Ohio Ct. App. 1995), as authority to the contrary is misplaced. Specifically, he cites that case for the proposition that the City may be held liable for malicious p rosecution and abuse of process

— immunity statutes notwithstanding

— because the City’s employees acted “with mal icious purpose.” That reading ignores both the content of Ohio’s immunity statute and the context of the dispute before the court in Mayes . As the district court rightly noted, the “malicious purpose” language in Mayes was used in deciding a malicious pr osecution claim against two police officers, not against the officers’ municipal employer

. Id. at 134 8

- 4 9. In holding that the officers were not immune because they acted with “malicious purpose,” the court was simply applying the express terms of Ohio R evised Code § 2744.03(A)(6) , which apply only to claims against individual employees, not to claims against municipalities

. 3 Mayes , 664 N.E.2d at 1348

- 49. Mayes did nothing to disturb the settled law in Ohio prohibiting malicious prosecution claims again st municipalities. Faulkner argues that affirmance of the district court’s immunity de cision would “make all malicious prosecution and abuse of process claims against government actors nearly impossible,” Appellant Br. at 15, but Mayes makes clear that su ch claims are viable so long as the plaintiff sues the police officers involved individually and is able to show that they acted “with malicious purpose, in bad faith, or in a wanton or reckless manner.” Mayes ,

3 Ohio Revised Code § 2744.03(A)(6) provides: “The employee is immune from liability unless one of the following applies: . . . [t]he employee’s act or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner.”Case No. 16

- 3 946 , Ohio ex rel. Faulkner v. City of Middletown

- 6

- 664 N.E.2d at 1348 (quoting Ohio Rev. Code § 2744.03(A)(6)(b) ) . Since Faulkner only sued the City, Mayes is not on point. Accordingly, we AFFIRM the judgment of the district court.