COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72004 MILTON BRIDGES, ET AL. : ACCELERATED DOCKET : Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION KAREN BUTCH, ET AL. : : Defendants-appellees : PER CURIAM : DATE OF ANNOUNCEMENT : OF DECISION : AUG. 28, 1997 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 293005 JUDGMENT : Reversed. DATE OF JOURNALIZATION : APPEARANCE FOR PLAINTIFFS-APPELLANTS: FOR DEFENDANTS-APPELLEES: Roy M. Kaufman, Esq. Timothy J. Mangan, Esq. 745 Leader Building Asst. Attorney General Cleveland, Ohio 44114-1401 140 East Town Street 9th Floor Columbus, Ohio 43215-6001 -2- PER CURIAM: This matter comes before this court on the accelerated docket. Therefore, pursuant to App. R. 11.1 and Loc. R. 25, this court may state the reasons for its decision in brief and conclusory form. Appellants appeal from the trial court's granting of appellees' motion for summary judgment. As our review of the evidence indicates issues of material fact remain for resolution, this matter is reversed. On September 30, 1994, appellees Karen Butch, Timothy McGlynn, Dave Hammons, Dave Switzer, Scott Bernard, and Curtis Patrick, all Ohio State Parole Officers, (hereinafter appellees) entered the home of appellants Milton Bridges, Sr. and Thelma Bridges (hereinafter appellants), pursuant to arrest warrants issued for appellants' sons, Milton Jr. and Amel Bridges, who had been declared "probation violators at large." Neither Milton Jr. nor Amel were in the home, and the officers proceeded to search for contraband. Milton Jr. had been granted probation on January 14, 1994, Amel was granted probation on June 14, 1993. Both agreed, as a condition of supervision to: a search without warrant of my person, my motor vehicle, or my place of residence by a probation/parole officer at any time. They also consented to: not purchase, possess, own, use, or have under my control, any firearms, deadly weapons, ammunition, or dangerous ordnance. And to: -3- not possess, use, purchase, or have under my control any narcotic drug or other controlled substance ***. When the parole officers arrived at appellants' residence, appellant Thelma Bridges (Thelma) contends she was sitting on her front porch with her four grandchildren. She stated that appellee Butch ordered her, at gunpoint, to go inside and sit on the couch, where she was held for approximately one hour. Thelma also states that she gave appellees keys to the back apartment and the closet door so they would not break down any doors. She also offered them a key to her husband's locked office. Appellants maintain appellees broke the lock and door jamb on the office, broke the lock on the closet door, searched every room, including the drawers, and scattered the contents of drawers on the floor. Appellants further contend appellees seized from them several weapons and also a medicine pouch, a blackjack, a pair of handcuffs, a belt bullet holder, 2 long dirk knives, several gun holsters, and approximately $700.00 in cash. Appellant Milton Bridges Sr. (Milton, Sr.) claimed that the various shotguns and other equipment are used by him for hunting, and are kept in a locked room in the home. Appellants further assert they were not given any receipts for the items taken. Following a replevin action in Cleveland Municipal Court, the various guns were returned to appellants. However, appellants claim that the remaining items were never given to the police, and thus, were not returned to appellants. Appellants also allege appellees damaged their home while conducting the -4- search. Appellants filed their complaint on July 28, 1995 and an amended complaint on September 4, 1996. Appellants brought this action under 42 U.S.C. 1983, alleging appellees, both individually and as members of the State Adult Parole Authority, violated their "right to be free from unlawful search and seizure, false imprisonment and violating their right to privacy of their home, from destroying their locks and doors from the theft, and placing Plaintiff, Thelma Bridges, and her grandchildren in terror and fear of bodily harm and destruction of her property." Appellees filed a motion for summary judgment on October 15, 1996. The trial court granted appellees' motion on January 22, 1997. Appellants filed a timely Notice of Appeal of the trial court's order on February 6, 1997. Appellant states the following as his sole assignment of error: THE LOWER COURT ERRED IN GRANTING DEFENDANT'S (sic) MOTION FOR SUMMARY JUDGMENT. When reviewing a motion for summary judgment, the appellate court applies the same standard as that employed by the trial court. Lorain Natl. Bank v. Saratoga Apts. (1989), 61 Ohio App.3d 127, 129. Civ. R. 56(C) provides that summary judgment is properly entered when the admissible evidence as enumerated in the rule shows that there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law. Appellants' complaint apparently contends that their rights -5- were violated pursuant to 42 U.S.C. 1983, as they were subjected to an unlawful search and seizure, and were deprived of property without due process of law. Appellees argue they were entitled to summary judgment as appellants failed to allege the absence of a post-deprivation remedy and also failed to establish an 1 unlawful search and seizure. Initially, this court notes that the court of common pleas correctly asserted jurisdiction in the action sub judice. R.C. 2743.02(F), requires that a plaintiff with a potential claim against the state as the result of the conduct of a state employee first file the action in the Court of Claims to determined whether the employee is entitled to immunity pursuant to R.C. 9.86. However, a plaintiff need not comply with 2743.02 when bringing a claim under federal law. Conley v. Shearer (1992), 64 Ohio St.3d 284, 292-3, see, also, Shockey v. Fourty (1995), 106 Ohio App.3d 420, 425 (actions against state officials in their individual capacity can proceed in state court without a determination from the court of claims that the employees acted outside the scope of their employment.) In a 42 U.S.C. 1983 action, the inquiry is two-fold: whether the conduct complained of was committed by a person acting under color of law, and whether this conduct deprived the person of rights, privileges or immunities secured by the Constitution or the laws of the United States. Parratt v. Taylor 1 In their summary judgment motion, appellees also argued that they were entitled to qualified immunity. However, this argument was omitted in their brief on appeal. -6- (1981), 451 U.S. 527 101 S.Ct. 1908, 68 L.Ed.2d 420, overruled on other grounds, Daniels v. Williams (1986), 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662. It is uncontested that appellees acted under color of law. The remaining inquiry, therefore, focuses on whether appellants suffered a deprivation of a right, privilege or immunity secured by the Constitution or federal law. The Ohio Supreme Court has stated: [p]roperty interests are distinguishable from life or liberty interests because property interests are founded on the procedural aspects of due process; they are not substantive rights created by the federal Constitution. Cooperman [v. Univ. Surgical Assoc., Inc. (1987), 32 Ohio St.3d 191] at 200, 513 N.E.2d at 297-298. * * * When the interest is purely economic, the Constitution demands only that the challenging party be given a meaningful opportunity to be heard. Parratt, supra at 543-544. If the state provides adequate postdeprivation state tort remedies for unauthorized intentional property deprivations, the state has provided all the "process" required under the Fourteenth Amendment. (citations omitted.) 1946 St. Clair Corp. v. Cleveland (1990), 49 Ohio St.3d 33, 36. Therefore, the court held that in order to assert a claim pursuant to 42 U.S.C. 1983 and the Fourteenth Amendment for deprivation of property without due process of a purely economic interest, a plaintiff must allege and prove the inadequacy of state remedies. Id. In reaching its decision, the Ohio Supreme Court references the United States Supreme Court's decision in Parratt. 1946 St. Clair Corp., supra. In Parratt, an inmate brought suit under -7- section 1983 when materials he had ordered through the mail were lost after normal procedures for receipt of mail packages were not followed. Id. The Court noted that the fundamental requirement of due process is the opportunity to be heard, which must be granted at a meaningful time and in a meaningful manner. Id. The Court determined that the state provided sufficient state law remedies for a person who has suffered a tortious loss due to the negligence of an employee of the state. Id. As the inmate failed to first use the state law remedies available to him, the Court held that the inmate did not sufficiently allege a 2 violation of section 1983. The holding in Parratt was then extended in Hudson v. Palmer, (1984), 468 U.S. 517, 104 S.Ct. 3194. The Court in Hudson held that an intentional deprivation of property by a state employee does not constitute a violation of the due process clause of the fourteenth amendment if a meaningful postdeprivation remedy for the loss is available. The court in Yates v. Jamison (4th Cir. 1986), 782 F.2d 1182 summarized: [t]hus, Parratt and Palmer establish the rule that a government official's random and unauthorized act, whether intentional or negligent, which causes the loss of private property is not a violation of procedural due process when the state provides a meaningful postdepriva-tion remedy. The rationale is that because the wrongful act is not sanctioned by any established procedure, and because state law provides a means for the plaintiff to be made whole for his loss occasioned by the wrongful act, there has been no denial of 2 Parratt has been overruled to the extent that it states that the mere lack of due care by a state official may deprive an individual of life, liberty or property under the fourteenth amendment. See Daniels v. Williams 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). -8- procedural due process because the state action is not necessarily complete until the termination of the state's postdeprivation remedy. Where the claim asserted rests on the deprivation of a property interest alone, the constitutional interest involved is the procedural due process right to notice and hearing. Cooperman, supra at 200, citing Hudson [v. Palmer (1984) 468 U.S. 517,] 530-537; Parratt, supra at 536-545; Bd. of Regents v. Roth (1972) 408 U.S. 564. (Emphasis in the original.) The plaintiff therefore must allege and prove the inadequacy of state remedies before asserting a claim pursuant to 42 U.S.C. 1983. However, where the right deprived under color of state law is a substantive right, such as the Fourth Amendment's prohibition against unreasonable searches and seizures, "a Section 1983 suit is always available regardless of supplemental state remedies." (Citations omitted.) Cooperman, supra at 199. In the action sub judice, appellants also maintain that they were subject to unreasonable search and seizure, thus stating a violation of their Fourth Amendment rights. Therefore, appellants did sufficiently state a claim under 42 U.S.C. 1983. Appellees argue that the search was consented to by both Milton Jr. and Amel as a condition of their probation, and that no seizure occurred as neither of the appellants was arrested. Appellants do not dispute that appellees had the right to enter 3 their residence and conduct a se 3 As conditions of their parole, both Milton Jr. and Amel had consented in writing to allow a search of their residence at any time. Additionally, appellant Thelma Bridges had acknowledged that Milton Jr. was to be paroled to her residence. -9- affidavit, alleges, inter alia, that appellees ignored her offer of keys and destroyed a door and a closet, that appellees took the guns from the house without leaving any receipts, and finally, that appellees took cash that was in the home. Appellant Milton stated by way of affidavit, that appellees took several gun holsters, knives, a medicine pouch, a bullet belt holder, handcuffs and cash without issuing a receipt, and that these items were never returned. Finally, appellants submit photographs showing a broken door, and a room that appears to have been ransacked. A "seizure" of property occurs when "there is some meaningful interference with an individual's possessory interests in that property." Soldal v. Cook County, Illinois, (1992), 506 U.S. 56, 61 113 S.Ct. 538, 543, 121 L.Ed.2d 450, quoting United States v. Jacobsen (1984), 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85. The Fourth Amendment protects the right of "the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ***." Soldal, supra. Thus, the Fourth Amendment protects both property and privacy. Id. The Fourth Amendment: protects two types of expectations, one involving 'searches', the other 'seizures.' A 'search' occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. A 'seizure' of property occurs where there is some meaningful interference with an individual's possessory interests in that property. Id. -10- The Soldal court further held: In our view, the reason why an officer might enter a house or effectuate a seizure is wholly irrelevant to the threshold question whether the [Fourth] Amendment applies. What matters is the intrusion on the people's security from governmental interference. Therefore, the right against unreasonable seizures would be no less transgressed if the seizure of the house was undertaken to collect evidence, verify compliance with a housing regulation, effect an eviction by the police, or on a whim, for no reason at all. Id. Thelma also contends that appellee Butch ordered her and her grandchildren, at gunpoint, to go inside the house from the porch where they had been sitting, and ordered them to stay on the couch for approximately an hour while the search was being conducted. A seizure of a person occurs when there is some application of physical force, however slight, or a show of authority to which the subject yields. California v. Hodari (1991), 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690. The deposition testimony of appellees Patrick, Switzer and 4 Berna Parole Officer Patrick does not recall any of the officers breaking any locks, nor does he remember seizing property other than firearms. He did not recall seeing a woman and children on the porch. He also testified that one of the rooms upstairs was already a "pigsty" when the officers arrived. He further testified that he would ordinarily issue a receipt when confiscating weapons, as long as there was no breach of security. 4 Interestingly, the affidavit submitted by Parole Officer Butch does not contest any of the facts as asserted by appellants. -11- Parole Officer Switzer testified that he did not have the authority to seize anything that wasn't contraband. He also did not remember seeing anyone on the porch when they arrived. Further, he did not recall anyone breaking a door lock, and he recalls removing only weapons, although he admitted no receipt 5 was issued for the weapon Parole Officer Bernard also believed that only weapons were removed from the home, although he remembered seeing handcuffs. He did not remember that keys were given to any of the officers. Bernard also acknowledged that they did not issue a receipt. He believed that it was the duty of the Cleveland Police Department to issue receipts because once property is removed from the home, it becomes the property of the Cleveland Police Department. Bernard also did not remember seeing a woman and children on the front porch when they arrived. When considering a motion for summary judgment, it is neither the duty of this court, nor of the trial court, to weigh the evidence or determine the credibility of witnesses. The evidence submitted by both appellants and appellees indicates the existence of issues of material facts. If appellees did seize property that was not contraband, did not issue a receipt, failed to turn over the property to the Cleveland Police Department, and destroyed doors and locks in appellants' home as alleged, there was an interference with appellants' possessory interest in their 5 Parole Officer Switzer, therefore, admits that the officers failed to comply with R.C. 2933.41 which requires an inventory of property that is taken pursuant to a search. -12- property which would constitute a seizure. If Thelma and her grandchildren were ordered inside the house and forced to remain seated, at gunpoint, a "seizure" of Thelma's person may have occurred. The resolution of the issues of fact will determine whether appellants suffered a seizure of either person or property, and whether the seizure, if it occurred, was unreasonable. Appellants have submitted sufficient evidence to indicate that when construing the evidence most strongly in favor of the non-movant as required by Civ.R. 56(C), issues of fact remain to be determined regarding appellants' allegations that they were subject to an unreasonable search and seizure. Summary judgment was improperly granted in the trial court. This cause is reversed. -13- It is ordered that appellants recover of appellees their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, CHIEF JUSTICE ANN DYKE, JUDGE KENNETH A. ROCCO, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .