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Arrington v. City of Fort Wayne

United States District Court, N.D. Indiana, Fort Wayne Division

September 27, 2017

CITY OF FORT WAYNE, et al. Defendants.



         This matter is before the Court on: (1) Defendant Lunz Excavating, Inc.'s Motion for Summary Judgment (DE #50); (2) Defendant's Motion for Summary Judgment, filed by Kelley Towing (DE #52); and (3) Defendants, City of Fort Wayne and John Caywood's Motion for Summary Judgment (DE #56), all filed on February 23, 2017. For the reasons set forth below, the motions are GRANTED. Arrington's federal claims are DISMISSED WITH PREJUDICE and this case is REMANDED to Allen Superior Court for further proceedings.


         On March 10, 2016, Eddie J. Arrington (“Arrington”) filed a complaint against the City of Fort Wayne (“City”), Mayor Henry, John Caywood (“Caywood”), Kelley Towing (“Kelley”), and Lunz Excavation (“Lunz”) in the Allen Superior Court. The complaint alleges that the Defendants discriminated against him based on his “race and aesthetic belief, ” by depriving him of property in violation of the Fourteenth Amendment and I.C. § 35-46-4-1. More specifically, he alleges that, on March 10, 2014, a neighborhood code officer, together with the Fort Wayne Police Department, entered his property and unlawfully removed his car, truck, trailer, riding lawn mower, grill and other items. Because the complaint asserts federal claims, it was removed to this Court.

         Defendants have each filed a motion for summary judgment asserting that judgment must be entered in their favor as a matter of law. Each Defendant also served Arrington with a “Notice of Summary Judgment Motion” that explained what a summary judgment motion is and his obligations in response to the motion. (DE ##54, 55, 59). The notice explained that factual allegations must be supported with citations, and that the court is not required to consider materials that are not cited. Despite these notices, Arrington filed a single response to the instant motions that is roughly two pages in length and devoid of any citations. (DE #66). He also filed a handful of exhibits, including a disk with two video segments. (DE #67). Defendants filed a joint reply brief on July 21, 2017, and the motion is now ripe for adjudication.


         Summary judgment must be granted when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine dispute of material fact exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Not every dispute between the parties makes summary judgment inappropriate; “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. In determining whether summary judgment is appropriate, the deciding court must construe all facts in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010). “However, our favor toward the nonmoving party does not extend to drawing inferences that are supported by only speculation or conjecture.” Fitzgerald v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (citing Harper v. C.R. Eng., Inc., 687 F.3d 297, 306 (7th Cir. 2012)).

         A party opposing a properly supported summary judgment motion may not rely on allegations or denials in her own pleading, but rather must “marshal and present the court with the evidence she contends will prove her case.” Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). If the nonmoving party fails to establish the existence of an essential element on which he or she bears the burden of proof at trial, summary judgment is proper. Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006).


         Each Defendant has provided a statement of undisputed material facts with citations to supporting evidence in compliance with the requirements of Federal Rule of Civil Procedure 56 and Northern District of Indiana Local Rule 56-1. Accordingly, to avoid summary judgment, Arrington must demonstrate that there is a genuine dispute by citing material facts he contends are in dispute in a statement of genuine disputes or showing that the materials cited by the Defendants do not establish the absence of a genuine dispute. Fed. R.Civ. P. 56(c).

         Although there are three separate motions for summary judgment before the Court, the controlling facts are undisputed and identical as to each motion. For that reason, the Court has borrowed liberally from the response brief of the City, Mayor Henry, and Caywood. (DE #57). Arrington's response brief does not contain a statement of genuine disputes, but does cite to several exhibits in the body of his response. Although not strictly in compliance with this Court's rules, in light of his pro se status, the exhibits cited by Arrington have been considered by the Court. These exhibits, however, do not directly contradict any of the Defendants' assertions. Accordingly, where Defendants have appropriately cited to the record, the facts they present are deemed admitted.

         The City has enacted ordinances which regulate housing and building standards for properties located within the City, including an ordinance entitled “Minimum Housing and Maintenance Standards, codified as Chapter 152 of the Fort Wayne City Code of Ordinances.” (Caywood Aff. ¶ 4). The City has also enacted an ordinance regulating the manner of parking of motor vehicles within the City limits. (Id. ¶ 5).

         Section 152.04.C(6) and (7) govern exterior property areas and provide:

(C) Exterior Property Areas. ****
(6) Vehicles. Except as provided for in other regulations, no inoperable motor vehicle shall be parked, kept or stored on any premises, and no vehicle shall at any time be in a state of major disassembly, disrepair, or in the process of being stripped or dismantled. All operable vehicles shall be parked on an approved surface.
(7) Prohibited outdoor storage. It shall be unlawful and prohibited for an occupant to cause, keep, permit or maintain a public nuisance. Public nuisance shall include, but not be limited to, the following:
(a) Building materials stored on any premises, except the following: building materials and equipment placed or stored on premises, or for a period of no longer than 30 days prior to a commencement of building, and no longer than ten days after the completion of building on said premises.
(b) Any furniture, appliances or household items not originally designed or manufactured solely for outdoor use, including tools, auto parts, and other similar items.
(c) Any equipment, furniture, bicycles, or children's toys which were originally designed or manufactured for outdoor use and which are now dilapidated, deteriorated or dismantled.

(Caywood Aff. Ex. 1 at 9).

         Section 152.04.E, governs trash and debris. It provides:

(E) Trash and Debris. All exterior property and premises, and the interior of every structure, shall be free from any accumulation of trash and debris.
(1) Disposal of Trash and Debris. Every occupant of a structure shall dispose of all refuse in a clean and sanitary manner by placing in refuse containers.
(2) Approved Refuse Containers. The owner of every occupied premise shall be responsible to supply covered refuse containers for trash sufficient to meet the needs of the occupants.

(Caywood Aff. Ex. 1 at 11).

         The City's Neighborhood Code Enforcement Department (“NCE”) is responsible for enforcement of both the Indiana Unsafe Building Law (I.C. § 36-7-9 et seq.) and the relevant sections of the City Building Code. (Caywood Aff. ¶ 6). On March 10, 2014, the date of the NCE's entry onto Arrington's properties to abate violations of the City Code, Cindy Joyner was the Deputy Director of NCE. (Joyner Aff. ¶¶ 2-3). Caywood held the position of Administrator. (Id. ¶ 3; Caywood Aff. ¶ 3). His duties included the supervision of one field supervisor and eleven (11) Code enforcement officers. (Caywood Aff. ¶ 3). He was not a policy maker for NCE or the City. (Id.). NCE has policies and procedures for its enforcement of the City Code. (Id. ¶ 7; City Code Section 152.12, Enforcement of Penalties; I.C. § 36-7-9-17).

         When NCE learns that a property may be in violation of Section 152 or 72, or the Unsafe Building Law, a Code enforcement officer goes to the property, inspects the property, and takes photographs of the items that violate the City Code. (Caywood Aff. ¶ 8). The NCE then cites the property owner. (Id.). The property owner has a right to an administrative hearing. (Id.). If the violations concern health and safety, NCE will give the property owner ten days to abate the violation. (Id.). If the violations are not abated, the NCE issues a written Order to Abate (“OTA”), giving the property owner an additional ten days to ...

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