IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

STEVE HESKETT, II, et. al., : 

 : Case No. 2:11-cv-00890 

 Plaintiffs, : 

 : JUDGE ALGENON L. MARBLEY 

 v. : 

 : 

ATHENS COUNTY, et. al., : Mag. Judge Elizabeth Preston Deavers 

 : 

 Defendants. :

 :

OPINION AND ORDER 

I. INTRODUCTION 

 This matter is before the Court on Plaintiffs’ Motion for Preliminary Injunction (Doc. 16) 

and Defendants’ Motion for Summary Judgment (Doc. 25). For the reasons stated herein the 

Court lacks subject matter jurisdiction and the action is, thus, DISMISSED. Plaintiffs’ Motion 

for Preliminary Injunction and Defendants’ Motion for Summary Judgment are both MOOT.

II. BACKGROUND 

Plaintiffs, Steven Heskett II, Steven Heskett Sr., and Heskett Land Development Co., 

LLC (“HLDC”) have brought suit against Defendants Athens County and County Auditor Jill 

Thompson alleging, under 42 U.S.C. § 1983, violations of the First and Fourteenth Amendments, 

as well as the Americans With Disabilities Act (“ADA”). Plaintiffs’ claims stem from the tax 

valuation of a parcel of real property located at 177 Pinegrove Drive, Nelsonville, Ohio (“the 

parcel”), and owned by HLDC. Plaintiffs also filed a Motion for Preliminary Injunction seeking 

that Defendants be enjoined from proceeding with the foreclosure action on the parcel for the 

collection of unpaid property taxes. 

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Plaintiffs purchased the parcel at issue in early 2000 for $115,500.00 through a Sheriff’s 

sale. Complaint, Doc 1 at 5. Prior to Plaintiffs’ purchase , one of the buildings on the parcel was 

used as a school building. Id. The parcel had enjoyed tax-exempt status while used as a school 

by its previous owner. Id. In approximately June 2000, following Plaintiffs’ purchase, Plaintiffs 

began using the property for religious activities including a “faith-based, non-profit youth camp 

for disadvantaged children and teens from inner-city Ohio communities.” Id. At some point, 

following Plaintiffs’ purchase of the parcel, Defendants reassessed the parcel’s value. Id. 

Plaintiffs allege that the valuation was conducted without notice and was untimely under state 

law. Id. Plaintiffs also allege that three applications were filed seeking tax exempt status for the 

parcel at issue, the last of which was filed on December 30, 2010. Id. at 6. Defendants maintain, 

however, that the lone application filed by Plaintiffs was that of December 30, 2010, and that 

Defendants received no others before or since. Motion for Summary Judgment, Doc. 25 at 7. 

Indeed, Defendants cite to both Plaintiff Steven Heskett Sr.’s and Plaintiff Steven Heskett II’s 

respective depositions as evidence that neither Plaintiff has evidence of filing a tax exempt 

application prior to December 30, 2010. Id. Furthermore, Defendants assert that HLDC was 

organized as a for-profit organization. There is no evidence that HLDC has ever sought or 

received tax exempt status as a 501(c)3 from the Internal Revenue Service. Id. 

On May 29, 2008, a separate foreclosure action against HLDC was instituted by Talbott 

Consulting, Inc. in Athens County Common Pleas Court to foreclose on the parcel. Motion for 

Summary Judgment, Doc. 25 at 8. On September 15, 2009, the Athens County Treasurer moved 

to intervene to assert real estate tax liens against the parcel. Id. On December 21, 2010, in an 

Agreed Amended Statement of Facts, Plaintiffs stipulated that: (1) the current property taxes due 

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were $89,553.60; (2) the overdue amount was made based on valuations beginning in 2001; and 

(3) HLDC filed no written appeals to the County Auditor’s valuations under O.R.C. Chapter 57. 

Id. 

On October 12, 2011, the Athens County Common Pleas Court entered judgment against 

HLDC in the amount of $98,078.95 for real property tax liability. Id. Following this adverse 

decision in state court, without appealing the decision, Plaintiffs filed this suit, alleging, under 42 

U.S.C. § 1983, violations of the First and Fourteenth Amendments, as well as the Americans 

with Disabilities Act. Plaintiffs seek injunctive relief and damages. Before the Court is 

Plaintiffs’ Motion for a Preliminary Injunction (Doc. 16). In Defendants’ Response (Doc. 17) 

and Motion for Summary Judgment (Doc. 25) they have alleged this Court lacks subject matter 

jurisdiction. The issue has been fully briefed and is ripe for adjudication. 

III. STANDARD OF REVIEW 

 Subject matter jurisdiction is a threshold matter that a court must decide prior to 

considering a claim’s merits. City of Health, Ohio v. Ashland Oil, Inc., 834 F.Supp. 971, 975 

(S.D.Ohio 1993). The plaintiff has the burden of proving jurisdiction when subject matter 

jurisdiction is challenged. Rogers v. Stratton Indus., 798 F.2d 913, 915 (6th Cir.1986). Attacks 

on subject matter jurisdiction may be either facial attacks or factual attacks. United States v. 

Ritchie, 15 F.3d 592, 598. A facial attack challenges the legal sufficiency of the complaint. 

When considering such a challenge, the court “must take the material allegations of the petition 

as true and construe[] [them] in the light most favorable to the nonmoving party.” Id.

IV. LAW AND ANALYSIS 

Plaintiffs seek to enjoin a tax foreclosure proceeding instituted by Defendant Athens 

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County for nonpayment of delinquent taxes. Essentially, Plaintiffs seek to restrict Defendant 

Athens County from levying taxes on Plaintiffs’ real property. Plaintiffs assert federal question 

jurisdiction, 28 U.S.C. § 1331, on the basis of their ADA and § 1983 claims. Defendants counter 

that Congress divested this Court of jurisdiction over a suit seeking to enjoin collection of State 

taxes under 28 U.S.C. § 1341, Tax Injunction Act (the “TIA”). 

A. Tax Injunction Act 

Under the TIA, this Court may not “enjoin, suspend or restrain the assessment, levy, or 

collection of any tax under State law where a plain, speedy, and efficient remedy may be had in 

the court of such State.” 28 U.S.C. § 1341. The TIA is intended “to promote comity and to 

afford states the broadest independence, consistent with the federal constitution, in the 

administration of their affairs, particularly revenue raising.” Wright v. McClain, 835 F.2d 143, 

144 (6th Cir.1987); see also Thiokol Corp. v. Mich. Dep’t of Treasury, 987 F.2d 376, 378 (6th 

Cir.1993) (quoting Fair Assessment in Real Estate Ass’n v. McNary, 454 U.S. 100, 103 (1981)). 

Where applicable, the TIA acts as a bar to federal jurisdiction. Hedgepeth v. Tennessee, 215 

F.3d 608, 612 (6th Cir. 2000); see also Wenz v. Rossford Ohio Transp. Improvement Dist., 392 F. 

Supp. 2d 931, 935 (N.D. Ohio 2005). 

As the Sixth Circuit has noted, “[t]he TIA has been interpreted broadly to bar suits for 

declaratory relief, injunctive relief, as well as monetary relief when there is an adequate remedy 

in state court.” Hedgepeth, 215 F.3d at 612 n. 4 (citing California v. Grace Brethren Church, 457 

U.S. 393, 408-10 (1982) and Nat'l Private Truck Council, Inc. v. Oklahoma Tax Comm'n, 515 

U.S. 582, 586-88 (1995)). Similarly, in Thiokol Corp. the Sixth Circuit found that, although the 

TIA only specifically mentions injunctions, it also bars declaratory actions and suits seeking 

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damages under 42 U.S.C. § 1983. 987 F.2d at 378. See also California v. Grace Brethren 

Church, 456 U.S. at 407-411 (holding that the TIA precludes district courts from awarding 

declaratory judgments). 

Generally, the TIA acts to bar jurisdiction even where Plaintiff alleges civil rights or 

constitutional claims. See Hedgepeth, 215 F.3d at 610 (finding the TIA applicable and thus 

granting dismissal for lack of subject matter jurisdiction where plaintiff’s suit included claims 

under the Americans with Disabilities Act); see also Thiokol Corp., 987 F.2d at 378 (“This 

exclusion of federal courts from the state taxation area is so far reaching it precludes federal 

courts from declaring state tax laws unconstitutional.”). Jurisdiction depends on whether the 

relief sought requires the federal court to ‘enjoin, suspend or restrain the assessment, levy or 

collection of any tax under State law, not on whether a state tax law allegedly violates a federal 

statute or constitutional provision. See Hibbs v. Winn, 542 U.S. 88, 99 (2004) (“To determine 

whether this litigation falls within the TIA's prohibition, it is appropriate, first, to identify the 

relief sought.”). 

1. The Assessment at Issue is a “Tax” 

The TIA applies only where the challenged assessment is a “tax.” The Sixth Circuit 

holds that taxes are assessments made for revenue purposes, as opposed to fees which are 

assessments made for regulatory or punitive purposes. See Hedgepeth, 215 F.3d at 612; see also 

Am. Landfill, Inc. v. Stark/Tuscarawas/Wayne Joint Mgmt. Dist., 166 F.3d 835, 837 (6th Cir. 

1999). The Sixth Circuit has adopted a three-factor test to determine whether an assessment is a 

tax or a fee: “(1) the entity that imposes the assessment; (2) the parties upon whom the 

assessment is imposed; and (3) whether the assessment is expended for general public purposes, 

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or used for the regulation or benefit of the parties upon whom the assessment is imposed.” 

American Landfill, 166 F.3d at 837; see also Hedgepeth, 215 F.3d at 612. The “predominant 

factor” in determining whether an assessment is a tax or a fee is “the revenue’s ultimate use.” 

Hedgepeth, 215 F.3d at 612. “Where the ultimate use is to provide a general public benefit, the 

assessment is likely a tax, while an assessment that provides a more narrow benefit...is likely a 

fee.” Am. Landfill, 166 F.3d at 838 (internal citations omitted); see also Wenz, 392 F. Supp. 2d 

at 936. Simply because the tax at issue has been transformed into a debt for purposes of 

collection by virtue of State statute does not serve to transform the tax into a debt. See, e.g., 

Brown Bark I, L.P. v. Traverse City Light & Power Dept., 736 F. Supp. 2d 1099, 1113 (W.D. 

Mich. 2010) aff'd, 10-2644, 2012 WL 3871889 (6th Cir. 2012) (citing Levine v. Levine, 209 

F.Supp. 564, 566–67 (D.Del.1962)). 

Although Plaintiffs style their action as a discrimination suit under the ADA and § 1983, 

the suit is, ultimately, a challenge to a State court judgment entered against Plaintiffs in the 

amount of $98,078.95 for real estate tax liability, under Ohio Revised Code 2329.01. See

Defendants’ Memorandum in Opposition, Doc 17, at 2. The challenged assessment is a “tax” 

under the TIA definition and Sixth Circuit law. The money Plaintiffs owe was levied on their 

real property by the State of Ohio and the amount calculated using the County Auditor’s 

statutory property valuations, as defined in Ohio Revised Code Chapter 57. The tax does not 

regulate or punish land owners. It is imposed on broad class of landowners and there is no 

benefit given to those assessed, beyond the benefit to the general public. Thus, the assessment in 

question is not a fee, but a tax for general revenue raising purposes that benefit the general 

public. 

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2. The Challenged Tax Foreclosure Proceeding is a “Collection” of a Tax under the TIA. 

The foreclosure action Plaintiffs challenge is actually a “collection” of a tax, rather than a 

standard foreclosure. See, e.g., Dixon v. Oisten, 62 F. App’x 105, 105 (6th Cir. 2003) (holding 

the TIA barred a claim challenging the manner in which the tax foreclosure was carried out 

where the plaintiff claimed the foreclosure was without due process); Johnson v. Mich. Dep’t of 

Treasury, No. 99-1730, 2000 WL 571916, at *2 (6th Cir. May 4, 2000) (holding the TIA barred 

plaintiff’s claim that he was denied due process because he did not receive notice of the tax 

foreclosure on his home); see also Anderson v. County of Wayne, 10-13708, 2011 WL 2470467 

at *7 (E.D. Mich. June 20, 2011) (finding that “[t]he Sixth Circuit has held that the TIA bars 

claims challenging the manner in which tax foreclosures are carried out[]” and finding a similar 

claim barred by the TIA in the present case). 

Plaintiffs here are the subject of an Ohio tax foreclosure proceeding. Despite Plaintiffs’ 

claims of discrimination, it is precisely that foreclosure proceeding the Plaintiffs challenge. See

Defendants’ Memorandum in Opposition, Doc 17, at 5. Ohio Revised Code Section 2327.02(C) 

expressly sanctions foreclosure sales as a means for the State to collect. Thus, the foreclosure 

proceeding at issue is, for purposes of the TIA, a “collection” of a tax under Sixth Circuit law. 

3. A “Plain, Speedy, and Efficient” State Remedy is Available

Although the foreclosure action at issue is, in fact, a tax collection, the TIA only bars 

Plaintiffs’ claims if there is a state remedy that is “plain, speedy, and efficient.” 28 U.S.C. 

§1341. Federal courts are instructed to construe narrowly the “no plain, speedy, and efficient 

remedy” exception to the TIA. See California v. Grace Brethren Church, 457 U.S. at 413 

(1982). The TIA requires only that state court remedies meet “certain minimal procedural 

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criteria.” See Rosewell v. LaSalle Nat’l Bank, 450 U.S. 503, 512 (1981). Where Plaintiff can 

bring his claims in an administrative proceeding and receive review by Ohio courts, such state 

remedies have been found sufficient as “plain, speedy, and efficient” under the TIA. See, e.g., 

Aluminum Co. of Am. v. Dep’t of Treasury, 522 F.2d 1120, 1125 (6th Cir. 1975); see also Wenz, 

392 F. Supp. 2d at 937. State remedies meet this requirement where they “provide the taxpayer 

with a full hearing and judicial determination at which the taxpayer may raise any federal 

constitutional objections to the tax.” Chippewa Trading Co v. Cox, 365 F.3d 538, 544 

(discussing the comity doctrine’s “plain, adequate, and complete remedy” requirement and 

determining it to be essentially equivalent to the “plain, speedy, and efficient remedy” 

requirement of the TIA under Fair Assessment, 454 U.S. at 116). 

The Sixth Circuit has held that even where a plaintiff allows a plain, speedy, and efficient 

remedy to elapse, such a remedy still satisfies the TIA. See, e.g., Johnson, 2000 WL 571916 at 

*2 (finding adequate state remedies available even where plaintiff failed to take advantage of 

them, thus barring his claim under the TIA); Aluminum Co. of Am. V. Dep’t of Treasury, 522 

F.2d 1120, 1125 (6th Cir. 1975); see also, e.g., Wenz, 392 F. Supp. 2d at 937 (Plaintiffs’ failure 

to timely bring a claim in administrative or other state proceedings does not make the state 

remedy inadequate); Anderson v. County of Wayne, 10-13708, 2011 WL 2470467 at *7 (E.D. 

Mich. June 20, 2011) (plaintiffs had a plain, speedy, and efficient state remedy where they could 

have (1) paid the delinquent taxes; (2) participated in the public foreclosure auctions; or (3) 

challenged the foreclosure ruling in state court, thus the suit was barred by the TIA). 

Here, Plaintiffs had multiple plain, speedy, and efficient remedies available under state 

law. First, under O.R.C. 5715.27(A) and procedures set forth in O.R.C. Chapter 5713, taxpayers 

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may file for tax exempt status. Indeed, the parties agree that at least one such tax exemption 

application was filed and considered by the State Tax Commissioner. See Defendants’ 

Memorandum in Opposition, Doc 17, at 7. Additionally, procedures for challenging a real estate 

tax valuation are set forth under O.R.C. § 5715.19(A)(1). Plaintiffs admit that they did not file a 

written appeal to the property valuations at issue. See Defendants’ Memorandum in Opposition, 

Doc 17, at 2. 

Moreover, Plaintiffs had recourse to State courts and did, in fact, challenge the tax 

foreclosure in State court. The challenge was unsuccessful and Plaintiffs have not appealed the 

judgment of the Athens County Court of Common Pleas. See Defendants’ Motion for Summary 

Judgment at Exh. 2, Decision in Talbot Consulting Inc. v. Heskett Land Development Company, 

LLC. Simply because Plaintiffs have not availed themselves of a remedy or because they have 

received an adverse determination, however, does not make the remedy insufficiently plain, 

speedy, or efficient under the TIA or Sixth Circuit precedent. 

The record demonstrates that Plaintiffs have had ample opportunity for due process at the 

state level, in both administrative and judicial proceedings, on their challenges to the tax 

assessment and collection which have resulted in the tax foreclosure at issue. These remedies 

exceed minimal procedural requirements mandated by the Sixth Circuit. The state remedies here 

are sufficiently “plain, speedy, and efficient” to satisfy the requirements of the TIA and, thus, 

divest this Court of jurisdiction over Plaintiffs’ challenge.1

 

1

 Although this decision does not address the broader doctrine of comity, it is noted that the federal common law 

doctrine of comity would also yield dismissal of Plaintiffs’ action. Comity doctrine “reflects some of the same 

concerns that led Congress to enact the Tax Injunction Act,” but “stands on its own bottom, and extends to cases 

seeking monetary damages as well as injunctive or other equitable relief.” Chippewa Trading Co. v. Cox, 365 F.3d 

538, 541 (6th Cir. 2004). Analysis under the doctrine asks the same questions as in a TIA analysis; the doctrine of 

comity, however, is broader. See id. More specifically, in Fair Assessment, the Supreme Court held that under § 

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Nevertheless, Plaintiffs argue that the Supreme Court’s decision in Hibbs v. Winn allows 

their claim to proceed in federal court notwithstanding the TIA. 542 U.S. 88 (2004). Hibbs, 

however, is inapplicable to Plaintiffs’ suit. The Hibbs Plaintiff challenged the constitutionality 

of a state statute that provided tax credits to third parties attending private religious schools. See 

Hibbs, 542 U.S. at 92. The Supreme Court distinguished the case in the opinion, stating that 

“Plaintiffs-respondents do not contest their own tax liability. Nor do they seek to impede 

Arizona's receipt of tax revenues.” Id. Based on those facts, the Court held that the TIA did not 

bar the claim. See id. at 111-12. In this case, Plaintiffs seek relief from state tax laws under 

which Plaintiffs themselves have incurred liability. Additionally, the relief Plaintiffs seek here, 

as opposed to that sought in Hibbs, would involve the “disruption of ‘state tax administration’ . . 

. specifically in relation to ‘the collection of revenue.’” Hibbs, 542 U.S. at 105 (quoting 

California v. Grace Brethren Church, 457 U.S. at 410). Thus, Hibbs case bears little 

resemblance to this case, and does not lift the TIA’s jurisdictional bar to Plaintiffs’ claims. 

B. FRCP 12(h)(3) Requires Dismissal for Lack of Subject Matter Jurisdiction 

The Federal Rules of Civil Procedures require that “[w]henever it appears by suggestion 

of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall 

dismiss the action.” Fed.R.Civ.P. 12(h)(3). Since the TIA is a jurisdictional bar to suit in federal 

courts, it deprives this court of subject matter jurisdiction. 2 Neither does this Court have 

 1983 federal courts may not award damages in state tax cases when state law provides an adequate remedy. 454 

U.S. at 116. Although the judge-made doctrine of comity requires that there be a “plain, adequate, and complete” 

state remedy to bar jurisdiction, the Supreme Court has held that there is “no significant difference” between the 

TIA’s “plain, speedy, and efficient remedy” requirement and the “plain, adequate, and complete” state remedy 

requirement. See Fair Assessment, 454 U.S. at 116 n. 8. While comity analysis would likely require the Court to 

dismiss Plaintiffs’ suit as well, the Court chooses to dismiss this case on the narrower grounds of the TIA. 

2 Under Sixth Circuit precedent, this action is properly dismissed in its entirety, notwithstanding Plaintiffs’ claims 

for damages as well as injunctive relief. See, e.g., Hedgepeth, 215 F.3d at 610 (upholding motion to dismiss for lack 

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supplemental jurisdiction over Plaintiffs’ suit because no federal question remains and there is no 

diversity between the parties. Thus, this Court also lacks supplemental jurisdiction over 

Plaintiffs’ state law claims. See 28 U.S.C. § 1367; 28 U.S.C. § 1332. Therefore, Plaintiffs’ suit 

must be dismissed. 

V. CONCLUSION

 For the reasons stated herein the Court lacks subject matter jurisdiction and the action is, 

hereby, DISMISSED. Plaintiffs’ Motion for Preliminary Injunction and Defendants’ Motion for 

Summary Judgment are both MOOT. 

IT IS SO ORDERED. 

 s/ Algenon L. Marbley 

 ALGENON L. MARBLEY 

 UNITED STATES DISTRICT JUDGE 

 

DATED: March 19, 2013 

 of subject matter jurisdiction under the TIA where plaintiff brought an action in part for alleged violations of the 

Americans with Disabilities Act and sought compensatory relief); Wenz, 392 F.Supp.2d at 934 (upholding motion to 

dismiss for lack of subject matter jurisdiction under the TIA where plaintiff sought compensatory relief under 42 

U.S.C § 1983; see also Thiokol Corp., 987 F.2d at 378 (“Although the TIA mentions only injunctions, its policy of 

comity bars declaratory and 42 U.S.C § 1983 damage actions as well) (citing Fair Assessment, 454 U.S. 100 at 105). 

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