Stewart Banks; Bambi Motel, Inc.; Richard H. Turner; P.t. Properties, Inc. v. City of Whitehall

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0340P (6th Cir.)
File Name: 03a0340p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
STEWART BANKS; BAMBI
MOTEL, INC.; RICHARD H.
TURNER; P.T. PROPERTIES,
INC.,
Plaintiffs-Appellants,
v.
CITY OF WHITEHALL; DENN IS
J. FENNESSEY; JOHN WOLF;
CHARLES D. UNDERWOOD;
CATHY CRANDALL; TIM
TILTON,
Defendants-Appellees.
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No. 01-4155
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 99-01082—James L. Graham, District Judge.
Argued: August 7, 2003
Decided and Filed: September 24, 2003
2 Banks, et al. v. City of Whitehall, et al. No. 01-4155
*The Honorable Thomas B. Russell, United States District Judge for
the Western District of Kentucky, sitting by designation.
Before: BATCHELDER and ROGERS, Circuit Judges;
RUSSELL, District Judge.*
_________________
COUNSEL
ARGUED: Ronald B. Noga, WELTMAN, WEINBERG &
REIS, Columbus, Ohio, for Appellants. Steven Lee Smith,
SMITH & COLNER, Columbus, Ohio, for Appellees.
ON BRIEF: Ronald B. Noga, WELTMAN, WEINBERG &
REIS, Columbus, Ohio, for Appellants. Steven Lee Smith,
SMITH & COLNER, Columbus, Ohio, for Appellees.
_________________
OPINION
_________________
ALICE M. BATCHELDER, Circuit Judge. The plaintiffs
appeal the district court’s order granting summary judgment
to the defendants in this action brought pursuant to 42 U.S.C.
§ 1983, claiming that the defendants, in the course of strictly
enforcing local building and fire codes in the city, took the
plaintiffs’ property for public use without just compensation
and enforced the law selectively in violation of the Fifth and
Fourteenth Amendments. The district court granted the
defendants’ motion for summary judgment on several
alternative grounds. First, that the plaintiffs’ claims are
barred by a two-year statute of limitations; second, that their
claims are barred by both claim preclusion and issue
preclusion; third, that their inverse condemnation and takings
claims are not ripe for review pursuant to principles set forth
in Williamson County Regional Planning Commission v.
Hamilton Bank of Johnson City, 473 U.S. 172 (1985); fourth,

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No. 01-4155 Banks, et al. v. City of Whitehall, et al. 3
that the individual defendants are entitled to immunity; and
finally, that all of their claims are without merit.
The plaintiffs do not challenge the district court’s holding
that their takings and inverse condemnation claims are not
ripe, and we need not address those claims on appeal.
Ewolski v. City of Brunswick, 287 F.3d 492, 516-17 (6th Cir.
2002). Because we conclude that the remaining claims are all
barred by the applicable statute of limitations, we affirm the
judgment of the district court without reaching the alternative
bases of the district court’s ruling.
Factual Background
The plaintiffs in this action are the Bambi Motel, Inc. and
its owner, Stewart Banks, and P.T. Properties, Inc. and
Richard Turner, the owner and operator, respectively, of
Robinwood Trailer Park and two other commercial buildings.
All of these properties are located in the City of Whitehall,
Ohio. The allegations in this § 1983 action have their genesis
in the city’s campaign of strict enforcement of its fire and
building codes in order to force certain businesses that were
in violation of those codes to shut down, either until the
violations could be remedied, or permanently. The Bambi
Motel, Robinwood Trailer Park and the P.T. Properties
commercial buildings were targets of this campaign.
The City filed an action in the Environmental Division of
the Municipal Court in Franklin County, Ohio, on November
22, 1995, against Banks and the Bambi Motel, alleging
numerous building code, fire code and licensing law
violations, as well as seeking an injunction to abate a public
nuisance allegedly resulting from drug trafficking,
prostitution and other criminal activity occurring at the motel.
On April 10, 1996, Banks and the Bambi Motel stipulated to
a permanent injunction, based on stipulated findings of
violations of the law, requiring that by July 9, 1996, Banks
would have either (1) razed the structures comprising the
motel or contracted to have it razed, or (2) sold the property
4 Banks, et al. v. City of Whitehall, et al. No. 01-4155
or entered into a binding contract with a real estate broker in
a good faith effort to sell the property. The stipulated
injunction required that on July 9, 1996, if the structures
comprising the motel were still standing, they would be
closed pending demolition or sale. Eventually, after two
contempt motions and several hearings, the court found that
Banks and the motel were in contempt and ordered the motel
razed. The appellate court held that Banks and the motel
were bound by their stipulations, and the motel was then
demolished.
After finding the Robinwood Trailer Park and one of the
P.T. Properties buildings in violation of various code
provisions, the City filed an action against Turner and P.T.
Properties on November 22, 1996, in the Environmental
Division of the Franklin County Municipal Court, seeking to
close the trailer park and to demolish the building. Turner
made the repairs necessary to bring both properties into
compliance, and, on August 29, 1997, the action was
dismissed.
The plaintiffs filed this action in the district court on
October 18, 1999, against the City of Whitehall and various
of its officials, in their official and individual capacities,
complaining that their actions had been undertaken in an
effort to drive the plaintiffs out of business; that these actions
constituted inverse condemnation and takings without just
compensation; that the defendants had selectively enforced
the building and fire codes against these plaintiffs and thereby
worked a taking without just compensation and a violation of
the Equal Protection Clause of the Fourteenth Amendment;
and that the plaintiffs were entitled to injunctive relief. The
district court granted summary judgment to the defendants,
and this timely appeal followed.
Analysis
We review de novo the district court’s holding that the
plaintiffs’ claims were filed outside of the applicable statute

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No. 01-4155 Banks, et al. v. City of Whitehall, et al. 5
of limitations. Tolbert v. Ohio Dep’t of Transp., 172 F.3d
934, 938 (6th Cir. 1999).
In this appeal, the plaintiffs do not contend that they filed
this section 1983 action within two years of the defendants’
allegedly unconstitutional conduct. The plaintiffs’ sole
argument pertaining to the statute of limitations is that
“Browning v. Pendleton, . . . which establishes a two-year (2)
statute of limitations for 42 USC § 1983 claims is contrary to
Ohio law and should be overruled with respect to § 1983
claims arising in Ohio.” The plaintiffs have no legal basis
whatsoever for advancing this argument in this court.
In 1985, the Supreme Court held that section 1983 claims
were best characterized as tort actions for the recovery of
damages for personal injuries and federal courts must borrow
the statute of limitations governing personal injury actions in
the state in which the section 1983 action was brought.
Wilson v. Garcia, 471 U.S. 261, 275-76 (1985). Four years
later, in Owens v. Okure, 488 U.S. 235 (1989), the Supreme
Court refined its Wilson holding, and declared that in a state
with more than one statute of limitations for personal injury
actions, the state’s residual or general statute of limitations
governing personal injury actions is to be applied to all
section 1983 actions brought in that state. Id. at 249-50. The
ink was hardly dry on Okure when this circuit, sitting en
banc, decided Browning v. Pendleton, 869 F.2d 989 (6th Cir.
1989). Noting that in Okure, the Supreme Court had
“unanimously held that when a state, like Ohio, has multiple
statutes of limitation for personal injury actions, the
appropriate state statute of limitations to borrow for claims
brought under 42 U.S.C. § 1983 is the residual or general
personal injury statute of limitations,” id. at 991, we held that
“the appropriate statute of limitations for 42 U.S.C. § 1983
civil rights actions arising in Ohio is contained in Ohio Rev.
Code Ann. § 2305.10, which requires that actions for bodily
injury be filed within two years after their accrual.” Id. at
992.
6 Banks, et al. v. City of Whitehall, et al. No. 01-4155
Not only did we determine en banc in Browning that a two-
year statute of limitations applies to section 1983 actions, but
in two later cases, LRL Properties v. Portage Metro Housing
Authority, 55 F.3d 1097, 1105 (6th Cir. 1995), and Kuhnle
Brothers, Inc. v. County of Geauga, 103 F.3d 516, 519-20
(6th Cir. 1997), we squarely rejected attempts to get around
Browning. As we noted in LRL Properties, “[i]t is the
well-settled law of this Circuit that ‘[a] panel of this Court
cannot overrule the decision of another panel. The prior
decision remains controlling authority unless an inconsistent
decision of the United States Supreme Court requires
modification of the decision or this Court sitting en banc
overrules the prior decision.’” 55 F.3d at 1105 n.2 (quoting
Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689
(6th Cir. 1985)). There is no such inconsistent decision of
either the Supreme Court or this court.
The plaintiffs’ brief includes in its statement of
facts—although not as a distinct legal argument—the claim
that a recent deposition of one of the defendants in this case,
taken in an unrelated lawsuit, brought to light evidence that
the City’s actions were designed to take the plaintiffs’
property “without Due Process or Just Compensation to
facilitate the redevelopment of East Main Street for the
political and personal advancement of the individual
Defendants,” and upon discovery of this evidence, the
plaintiffs were left with no vehicle to redress these
constitutional violations except this section 1983 action.
Such a discovery, if true, might enable the plaintiffs to avoid
the application of the statute of limitations to bar their claims.
But we find no evidence in this record that the plaintiffs’
claim is true. We have thoroughly reviewed the record,
including the portions of the deposition that supposedly
produced “new” evidence, as well as newspaper accounts
from the mid-1990s that contained as much inculpatory
evidence as the deposition, and we conclude that the
deposition did not alert the plaintiffs to any evidence that they
could not have easily discovered prior to the expiration of the
statute of limitations.

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No. 01-4155 Banks, et al. v. City of Whitehall, et al. 7
We think it is prudent, however, in light of this allegation,
to note briefly that even if the record contained some
indication that the plaintiffs could not have discovered this
evidence sooner, there is no basis whatever for their claim
that their substantive due process rights were violated when
the defendants rigorously enforced Whitehall’s building and
fire codes in a specific area of town in order to shut down
businesses around which drug dealers and prostitutes often
congregated. The plaintiffs argue that there is a so-called
“middle ground” protected by substantive due process
wherein the government cannot act arbitrarily or capriciously
with respect to property even if its actions do not rise to the
level of a taking. They pursue this argument notwithstanding
their admission that Stewart Banks and the Bambi Motel
voluntarily entered into an order before the state
environmental court admitting to the existence of various
code violations and agreeing to take specified remedial
measures, and Richard Turner and P.T. Properties, Inc. made
necessary repairs to their facilities, which enabled Whitehall
to lift its condemnation order and dismiss any pending legal
actions against them.
As an initial matter, we note that the Fifth Amendment, and
not substantive due process, is the basis upon which a
plaintiff may challenge the government’s actions with respect
to his property: “Graham v. Connor, 490 U.S. 386, 395
(1989), precludes the use of substantive due process analysis
when a more specific constitutional provision governs.” City
of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 123 S. Ct.
1389, 1397 (2003) (Scalia, J., concurring) (internal quotations
omitted). Moreover, to the extent that the plaintiffs attempt to
avoid the dictates of Graham by claiming that their challenge
is not to the “quasi-taking” of their property but is instead to
the conduct of Whitehall officials—namely, the rigorous and
allegedly selective enforcement of city regulations with the
purpose of shutting down businesses suspected of
contributing to a culture of crime—that challenge is wholly
without foundation. There exists no “fundamental” right in
our legal system to violate a municipality’s codes and
8 Banks, et al. v. City of Whitehall, et al. No. 01-4155
regulations with impunity, and the conduct of Whitehall
officials in enforcing those codes and regulations was neither
“arbitrary” nor “conscience-shocking” in the constitutional
sense. See Bowers v. City of Flint, 325 F.3d 758 (6th Cir.
2003) (majority and concurring opinions). In fact, the
government regularly uses the civil law to address problems
that it could, perhaps more directly, address with the criminal
law. See, e.g., 21 U.S.C. § 881 (authorizing civil forfeiture
proceedings against property acquired in or associated with
the illegal drug trade). Finally, the plaintiffs cannot prevail
on a claim of selective enforcement because they have not
shown that they “belong[] to an identifiable group, such as . . .
a particular race or religion, or a group exercising
constitutional rights,” and who were targeted for law
enforcement action as a result of that group status.
Gardenhire v. Schubert, 205 F.3d 303, 318-19 (6th Cir.
2000).
None of the defendants’ actions which the plaintiffs
complain of occurred within two years of the filing of this
lawsuit, nor were the plaintiffs prevented from timely
discovering any actions of the defendants that could
conceivably be redressed by a lawsuit brought under section
1983. Because this action is wholly barred by the applicable
statute of limitations, we need not reach any of the alternative
bases upon which the district court granted summary
judgment to the defendants.
The judgment of the district court is AFFIRMED.

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