NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0147n.06
No. 10-3516
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
SANDRA F ARINAC CI, et al.,
P laintif fs-App ellants,

v. CITY OF GA RF IELD HE IGHTS, et al.,
Defendan ts-Appellees. ) ) ) ) ) ) ) ) ) ON AP P EAL FR OM THE UNITE D STATE S DIST RICT COURT F OR THE NORT HERN DISTRICT O F OHIO
O P I N I O N

BEFORE: McK

EAGU E, and WHITE , Circuit Judges; BARRETT, District Judge. *
BA RRETT, District J udg e. M o t h e r a n d d a u g h t e r S a n d r a a n d K i m F a r i n a c c i b r o u g h t

co n s t i t u t ional claims under 42 U.S.C. § 1983 ag ainst the City of Gar field Heig hts and six of i t s

em ploy ees. The Fa

rninac cis also broug ht state law claims for trespass, invasion of pri v ac y an d intentional infliction of emotional distress. The Fa rinac cis’ claims stem from the war rantless entry into Sandra Far inacc i’s home t o remove a number of cats who were li ving there. The Fa rinac cis’ claims are also based on a letter wr itten by

the City ’s building c ommissi oner which states t hat t he
Fa rin a cci home was vaca

nt and abandone d. The Fa rinac cis appea l the district court’s conclusion that the City employ ees are entitled to qualified immunit y on the constitu t i o n al claims and statutory immunit y on the tort claims. The Fa rinac cis also appea l the dismiss al of their Monell claims ag ainst the City . For

the re asons set for

th below, we AF F IRM the district court.

H o n o r a b l e M i c h a e l R

. B a r r e t t , U n i t e d S t a t e s D i s t r i c t J u d g e f o r t h e S o u t h e r n D i s t r i c t o f O h i o , s i t t i n g b y * d e s i g n a t i o n .No. 10-3516 STATE MENT OF F ACTS Sandra Fa

rinac ci lived in her home on Mountview Avenue in Gar field Hei gh ts, Ohio for thirty -seve n y ear s. (R. 59-1, at 1.) I n J anuar y of 2006, Sandra fell into defa ult on her mortg ag e on the proper

ty

. (R. 51-4, at 2.) For eclosure proce eding s beg an in Dec ember of 2006. (R. 51-5.) On
Fe bruar y 21, 2007, Sandra was forc ed to leave her home due to poverty and illness. (R. 59-1, at 3.) Sandra left behind a l m o s t all of her persona l belong ings, including a number of cats. (R. 59-1, at 1.) Sandra’ s daug hter, Kim Fa rinac ci, has not lived in the home since J une of 2006, but would return to the home to car e for

the ca ts. (R. 51-2; 59-1, at 1.)
I n April of 2007, Ray field J ames, J r., an employ ee of J ames Secure , I nc., contac ted the City Service Direc tor, Tim McL aug hlin, and asked him to remove the cats from the Fa rinac ci home. (R.
59-1. at 7.) J ames Secure was hired by Fidelity National Field Service s, I nc. (“F idelity ”) to perf orm
proper ty prese rvation service s. (Doc

. 51-6.) Fidelity , in turn, was under a contra ct with Select Portfolio Servicing , I nc. (“SPS”), who was the servicing ag ent for the Ba nk of New York (“B ank”) , who was the mortg ag e holder on the Fa rinac ci home. The mortg ag e provide s: Bor rowe r shall no t d es t ro y , damag e or impair the Property , allow the Property to deter iorate, or commit waste o n t h e Property

. . . I f Bor rowe r fails to perf

orm the covena nts and agr eeme nts contained in thi s S ec u ri ty I nstrument, or t here is a lega l proce eding that may signific antly aff ect L ender ’s rig hts in the Property (suc h as a proce eding in bankruptc y , probate , for condemna tion or forf eiture or to enfor ce laws or reg ulations), then L ender may do and pay for whateve r is nece ssary to protec t the value of the Property and L ender ’s rig hts in the Property

. L ender ’s actions may include pay ing any sums secur ed by a lien which has priority over this Security I nstrument, appea

ring in court, pay ing rea sonable attorney s’ fee s and enter ing on the proper ty to make re pairs. (Doc . 51-4, at 11.)

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McL aug hlin notified J ohn Be cony , t h e C i t y Foreman, about the situation at the Fa rinac ci home. (R. 38, at 4.) Be cony subsequently informed Br ad Buntura , the City Animal Warden. (I d.)
Be cony and Mike Kristof, the curr ent Animal Warden, we n t t o t h e Fa rinac ci home to assess the situation. I t is undisput ed that no one from the City contac ted the Fa rinac cis or the B ank to ver ify
J ames’ authority

. (R. 59-1, at 9 .) I t is also undisputed that the Fa rinac cis never direc tly g ave permission to the City

to enter the home. (R. 59-1, a t 2, 4.)
On Apr i l 5 , 2 0 0 7 , Buntura and J ohn Be rdy sz, a service depar tment employ ee, enter ed the
Fa rinac ci hom e and place d cat tra ps inside the house. (R. 59-1, a t 15-16, 60-61.) L ater that same day , Ki m Fa rinac ci went into the house, fre ed the cats caug ht in the traps, and remove d the traps from the house. (R. 59-1, at 4.) On April 6, 2007, Buntura returne d to the house to chec k the traps, but discovered t h at t h ey wer e missing. (I d. at 20, 26.) Buntura repor ted the missing traps to the police, who f

iled a thef t incident repor

t. (R. 59-1, at 25-26.)
On t h e s am e day , Wil liam Wervey wrote a letter to the Cuy ahog a County Common Pleas Court which stated that the F arina cci home w as vac ant and a bandoned:
As the Building Commi ssioner of the City of Gar field Heig hts, I am familiar with the proper ty located at 10520 Mountview

. . . I t is my opinion that this proper ty is vaca nt and aba ndoned and is ha ving a

neg ative impact on the sur rounding neig hborhood. (R. 59-1, at 4 1

. ) T he Fa rinac cis claim that this letter circ umvented the City ’s ordinanc e which require s the Building Depa rtment to post a notice of vaca ncy and g ive the proper

ty owner thirty day s to respond. (See R. 59-2.) The Fa rinac cis broug ht a section 1983 claim ag ainst the City and Wervey for a violation of the rig ht to proce dural due proce ss; a section 1983 claim ag ainst the City , Be cony , Buntura , Kristof,

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McL aug hlin, and Be rdy sz for a violation of the rig ht to be fre e from unrea sonable sear ches and seizures under the Fou rt h Amendment; and claims ag ainst all defe ndants for trespass, i nvasion of privac y , intentional infl i ction of emotional distress under Ohio law. The City and the individual defe ndants filed a motion for summ ary judgme nt on all claims, which the district c ourt g rante d in its entirety . This appea l followed.
DISCUSSIO N
I. Stand ard of Review “We revie w a district court’s g rant of summary judgme nt de novo .” Alspaugh v. McConnell , 643 F.3d 162, 168 (6th Cir. 2011). Summary judgme nt is appropr iate wher e “the movant shows that there is no g enuine dispute as to any materia l fac t and the movant is entitled to judgme nt as a matter of law.” Fe d.R.Civ.P . 56(a)

. II. Quali fi ed im m uni ty The dist rict court deter

mined that the i ndividual City employ ees were entitled to qualified immunit y from the Fa

rinac cis’ claims broug ht pursuant to 42 U.S.C. § 1983. “A defe ndant is entitled to qualified immunit y on summary judgme nt unless the evidenc e, viewed in the light most favor able to the plaintiff, ‘would permit a rea sonable juror to f ind tha t ( 1) the defe ndant violated a constitutional rig ht; and (2) the rig ht was clea rly established.’” Coble v. City of W hite House, Tenn ., 634 F.3d 865, 870 (6th Cir. 2011) (quoting Aldini v

. Johnson , 609 F.3d 858, 863 (6th Cir. 2010)).
C o u rt s may “exerc ise their sound discretion in deciding which of the two prong s of the qualified immunit y analy sis should be addre ssed first in light of t h e circ umstances in the particula r case at hand.” Pearson v. Callahan , 555 U.S. 223, 236 (2009).

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The district court conclude d that under the first prong of the analy sis, no Four th Amendment violation occur

red beca use the City employ ees had third-par ty consent to enter the Fa

rinac ci home.
Farinacci v. City of Garfield Heights , 2010 WL 1268068, *11 (N.D. Ohio Mar. 30, 2010). The district c ourt also conclude d that no proce dural due proce ss violation occur red based on Wervey ’s failure to follow the City ’s ordi n an ce. Id. at *8. Be cause the district court deter mined that there

wer e no constitutional violations, it did not address whe ther the c onstitut ional rig hts at issue were “cle arly established.” Id. at *8, 11.
A. F ourth Am endm ent Under the Four

th Amendment, “[a]n officer with consent needs neither a war rant nor probable cause to conduct a constitutional sear ch.” United States v. Jenk ins , 92 F.3d 430, 436 (6th Cir. 1996) (citing S

ch neck loth v. Bustamonte , 412 U.S. 218, 219 (1973))

. Valid consent may be provided by “a third party who possessed common authority over or other sufficie nt rela tionship to the premises or eff

ects s o u gh t to be inspected.” U.S. v. McCauley , 548 F.3d 440, 446 (6th Cir. 2008) (quoting United States v. Matlock , 415 U.S. 164, 171 (1974)).
As the district court proper ly explained, the issue in this case is “whe ther J ames Secure , I nc. had authorization to g ive third-par ty consent and did proper ly g ive such consent to the individual Def endants.” 2010 WL 1268068, at *9. The district c ourt noted that:
On this point, there is no dispute that Plaintiffs had no contra ct with either proper ty prese rvation company

—Fidelity National Field Service s, I nc. or J ames Secure , I nc. The only contra ctual rela tionship was throug h Sandra Fa rinac ci’s mortg ag e with the bank and with SPS as the bank’s servicing ag ent. Plaintiffs do not dispute the validity of the proper

ty prese rvation provisions in the mortg ag e, nor di s agre e that those provisions authorize the bank and SPS to enter the premises and do “wha tever is nece ssary to protec t the value of the proper ty ” under the circ umstances identified.

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Id. I nstead, the Fa

rinac cis arg ued that while the Ba nk or SPS could enter the proper ty and authorize its ag ents to do so, no one else, including Fidelity or J ames Secure , had the authority to g ive thirdparty consent for entry

. Id. Howeve r, the district court reje cted this arg ument and found that the
Ba nk and SPS deleg ated their authority to Fidelity and J ames Secure for the purpose of car ry ing out their property prese rvation dut ies. Id. at 11. Acc ording ly , the di strict court concluded that J ames Secure “had common authority over the house and a sufficie nt rela tionship to the premises” to g ive valid third-par

ty consent to the City

to enter the house. Id.
On appea l, the Fa

rinac cis arg

ue that even if J ames Secure , throug h the Ba nk, had cer

tain rig hts unde r proper

ty or contra ct law, these rig hts must be distinguished from the authority to g ive consent to g overnme nt officials to ente r the pre mises owned or oc cupied by another

. 1
The Fa rin ac cis are corr ect that common authority is “not to be implied from the mere
proper ty interest a third party has in the proper ty .” Matlock , 415 U.S. at 172 n.7. As the Supreme Court has explained: “The a uthority which justifies the third-pa rty consent doe s not rest upon the law of proper

ty with its attendant historical and leg al ref inements.” Id. I nstead, common authority has been found to exis t wher e there is “mutual use of the proper ty by persons g ener ally having joint

acc ess or control for most purposes, so that it is rea sonable to rec og nize that any of the co-inha bitants has the rig ht to permit the inspection in his own rig ht and that the others have assumed the risk that one of the ir number mig ht permit the common are a to be se arc hed.” Id.

There is some dispute betwee n the parties as t o whether the Farin accis made this specific 1 arg ument befor e the district court. Howeve r, we note that reg ardle ss of how t h e ar g ument was articula ted, the district court relied on the same case s identified by the Fa rinac cis in support of their arg ument. -6-No. 10-3516

I n ref ining this principle, the Supreme Court has ex plain ed that “[t] he constant element in assessing Four

th Amendment rea sonablene ss in the consent case s . . . is the g rea t signific ance g iven
to widely share d social expectations, which are natura lly enoug h influence d by the law of proper ty , but not controlled by its rule s.” Georgia v. Randolph , 547 U.S. 103, 111 (2006). To illust rate , the Supreme Court explained that:
A person on the sc ene w ho identifies himself, say , as a landlord or a hotel manag er calls up no customary understanding of authority to admit g uests without the consent of the curr ent occupa

nt. See Chapman v. United States , [365 U.S. 610 (19 6 1)] (landlord) ; Stoner v. Calif ornia , 376 U.S. 483, 84 S.Ct

. 889, 11 L .Ed.2d 856 (1964) (hotel manag er)

. A tenant in the ordinary course does not take rente d p re mises subject to any formal or informal ag ree ment that the landlord may let visitors into the dwelling , Chapman , supra , at 617, 81 S.Ct . 776, and a hotel g uest customarily has n o rea son to expect the manag er to allow any one but his own employ ees into h i s room, see Stoner , supra , at 489, 84 S.Ct

. 889; see also U nited States v. Jeffers , 342 U.S. 48, 51, 72 S.Ct

. 93, 96 L .Ed. 59 (1951) (hotel sta ff had acc ess to room for purposes of c leaning and maintena nce, but no a

uthority to admit police). Id. at 112. The Supreme Court summarized: “I n these circ umstances, n ei t h er state-law proper ty rig hts, nor common contra ctual arr ang ements, nor any other so u rc e p o i nts to a common understanding of authority to admit third parties g ener ally without the consent of a person occupy ing the pre mises.” Id.
I n contra st, J ames had authority to admit third parties based on the mortg ag e document itself, which provided in broad terms that the Ba nk, as the L ender “may do and p ay for whateve r is

nece ssary to protec t the value of t he P ro p er t y an d L ender ' s rig hts in the P roper ty .” The mortgag e

even specifie s that the Ba nk’s actions in this reg ard may include “ente ring on the proper ty to make
repa irs.” As t h e d i s t ri ct court rec og nized: “When Sandra Fa rinac ci signe d her mortg ag e, which included the proper

ty prese rvation provisions, she expressly assumed the risk that, if it beca me

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nece ssary to prese rve the proper ty , the bank might permit its ag ents and others to enter the house to effec t uate that purpose.” 2010 WL 1268068, at *10. There fore , the district court did not err in concluding that J ames had common authority over the Fa rinac ci home and a sufficie nt rela tionship to the premises to g ive third-par ty consent to the City

employ ees to e nter the house

. B. P roce dural d ue process The Fa rinac cis arg ue that in finding that there was no proce dural due proce ss violation, the district court incorre ctly char acte rized Wervey ’s letter as mere ly stating his opinion. The Fa rinac cis also arg ue that the district court should have found a causa l connec tion betwee n Wervey ’s letter and the war rantless e ntry

into the Far inacc i home. The district court conclude d that Wervey was not acting pursuant to Chapter 1371 of the Building Code, which is the City ordinanc e identified by the Fa rinac cis. The district court explained: Wervey sent a letter to the Common Pleas Court which was adjudicating Sandra Fa rinac ci’s proper

ty fore closure, advising the Court that he believed the Mountview proper ty was vaca

nt and asking that the fore closure proce eding s rela ting to the proper ty be expedited. Plaintiffs do not dispute that this letter wa s wr i t ten in response to a r e quest from the Common Pleas Court, asking municipalities to identify vaca nt proper ties i n their environs so that the fore closure proce eding s as to those proper ties might be “fa st-trac ked” (Doc

. 62–1 at 5). Plaintiffs also do not d i spute that Wervey ’s letter followed the form sug g ested by the Common Pleas Court, which asked for an opinion as to the vaca nt status of proper

ties in fore closure, not for a formal or officia l decla

ration there of. Finally , Plaintiffs do not dispute and the rec ord is clea r that, upon rec eipt of letters like the Wervey letter, the Common Pleas Court employ ed a proce dure by which it notified the proper ty owner s of the fac t that their proper ties wer e being trea ted as vaca nt ones, and g iving the prope rt y owner s the opportunity to o b

j ec t to that desig nation (Doc

. 62–1 at 5)—the very notice and opportunity Sa

n d r a Fa rinac ci claims to have been entitled under Chapter 1371. There simply is no support in the rec ord, acc ording ly , for Sandra Fa rinac ci’s asser

tion that Wervey ’s letter c onstitut ed a le g ally binding de clar ation of her rig hts.

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2010 WL 1268068, at *8. The district court also found that there was no causa l connec tion betwee n Wervey ’s letter and t h e cl ai m ed constitutional depriva tion beca use the City enter ed the proper ty befor e the letter was even sent. Id. Moreove r, as the district court noted, the City employ ees did not rely on the letter for entry into the Fa rinac ci home, but instead wer e acting at the reque st of J ames. Id. We find no err or in this logic , and conclude that there was no proce dural due proce ss violation based upon Werve y ’s letter.
C. Monell claim s against the City The district c ourt found that the City was e ntitled to sum mary judgme nt on the Fa

rinac cis’ claims under Monell v. Dep’ t of Social Servs. , 436 U.S. 6 5 8 (1 9 7 8 ) b ecause there wer e no constitutional violations. We have previously held that the absenc e of a constitutional violation by the individual defe ndants compels the g rant of summary judgme n t wi t h respe ct to a plaintiff’s Monell claim based on the same conduct. Meals v. City of Mem phis, Tenn ., 493 F.3d 720, 731 (6th Cir. 2007) (citing City of Los Ange les v. Heller , 475 U.S. 796, 799 (1986))

. There fore , the district court did not err

in gr anting summary

judgme nt on the claims ag ainst the City

. D. Statutory im m uni ty The district court conclude d tha t th e Ci ty employ ees wer e entitled to statutory immunit y from the Fa rinac cis’ state law claims. Pursuant to O hio Revised Code § 2744.03(A)( 6), employ ees of a political subdivisi on are entitled to immunit y unless the employ ee’ s actions “were with malicious
purpose, in bad faith, or in a wanton or rec kless manner .” The district court found that the individual City employ ees did not act rec klessly and the state law tort claims lacke d m erit reg ardle ss of statutory immunit y .

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On appea l, the Fa

rinac cis arg ue that the question o f wh et h er the individual employ ees’ conduct was rec kless is a jury question. The district court rec og nized that the issue of rec klessness is g ener ally a jury question. 2010 WL 1268068, at *12. Howeve r, the district court also rec og nized that “[w]here the evidenc e in the rec ord does not sug g est a materia l fac tual issue on the question of

rec kless or willful or wanton misconduct, [i t] is perf ectly proper to deter

mine the case by means of
summary judgme nt.” Id. (quoting Garrison v. Bobbitt , 731 N.E.2d 216, 225 (Ohio Ct. App. 1999)). After revie wing the rec ord in g rea t detail, the district court conclude d that there was no evidenc e that the City employ ees a cted r eckle ssly

. The Fa rinac cis complain that the district court unfairly require d them to show rec klessness in the form of an unrea sonable risk of physical harm. Howeve r, in interpre ting Ohio Revised Code § 2744.03(A)( 6), Ohio courts have held that an employ ee of a political subdivision is immune from liability unless there is rec kless conduct which “cr eate s an unrea sonable risk of phy sical h arm to another .” Moss v. Lorain Cty. Bd. of Mental Retardation , 924 N.E.2d 401, 408 (Ohio Ct. App. 2009) (quoting Thompson v. McNeill , 559 N.E.2d 705 (Ohio 1990)); see also Hunter v. Columbus , 746 N.E.2d 246, 252 (Ohio Ct. App. 2000); Thompson v. Smith , 899 N.E.2d 1040, 1051 (Ohio Ct. App. 2008). The F arina ccis a lso find fault with the district court’s finding that the failure on the par t of the City employ ee s t o v er i fy J ames’ authority was mere ly “sloppy ,” as opposed to rec kless. The
Fa rinac cis arg ue that this is an issue for the jury to decide

. Howeve r, as the district court pointed out, J ames did in fac t have proper third-party consent to enter t h e h o use, and any attempt to verify his

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authority would have merely delay ed his entry , not preve nted it. There fore , the failure t o confirm his authority

cannot be deeme d rec kless. Construing the evidenc e and all rea sonable infere nces there from in the light most favor able to the Fa rinac cis, we c onclude that summary judgme nt was prope r on their state law cla ims.
CONCLUSION
For the fore g oing r easons, we AF F IRM the dec ision of the district court.

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HELE NE N. WHITE, Circuit Jud ge , concur ring

.

I ag ree that plaintiffs made no showing that Wervey ’s letter had any connect i o n t o the alleg edly wrong ful entry into the home. Nor have plaintiffs shown that the City of Gar field Heig hts has a policy or custom of enter ing homes in violation of Four th Amendment rig hts of homeowner s. I concur as t o the remaining defenda nts on the narrow basis that the i ndividual defe ndants

are enti t l ed to qualified immunit y wher e they acte d pursuant to the reque st of the authorized
proper ty -protec tion company afte r viewing the proper ty and confirming that the proper ty appea red

vaca nt and in the proc ess of be ing da mag ed by abandone d cats.
For the same rea sons, the district c ourt corr ectly deter mined that the defe ndants did not act

rec klessly

.

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