James C. JANOSEK; Welded Ring Products Co., Plaintiffs-Appellants, v. CITY OF CLEVELAND; Barry A. Withers, Defendants-Appellees.
No. 12-4028
United States Court of Appeals, Sixth Circuit.
June 7, 2013.
We evaluate the incentives differently. What could the agents have hoped to gain by unlawfully detaining Figueredo-Diaz and Morales-Loya? Very little, we conclude. Incriminating statements made by either man, as well as evidence recovered from his person, would be suppressed as to the speaker, or the victim of the search, as the product of his unlawful detention. See, e.g., United States v. Buchanon, 72 F.3d 1217, 1226 (6th Cir. 1995); see also Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (explaining that one may not assert the Fourth Amendment rights of another by seeking to suppress the fruits of the other‘s unlawful seizure). The same would likely be true of evidence later obtained because of such statements, so that if either illegally detained defendant had mentioned the location of a stash house, which then caused police to obtain a warrant to search the house, drugs and other evidence discovered during the search in all likelihood would be suppressed as to the one who made the statement. Likewise, Morales-Loya could probably obtain suppression of drugs or contraband recovered during a search of his Blazer were it determined that the agents unlawfully detained him and thereby prevented him from driving his vehicle away before a dog could sniff it (provided, of course, no other basis existed to detain the vehicle). The prospect of forfeiting the admission of such valuable evidence because of Fourth Amendment violations is considerable and sufficiently discourages non-particularized seizures.
IV.
For these reasons, we reverse and remand for further proceedings.
Before: MARTIN and COOK, Circuit Judges; GRAHAM, District Judge.*
OPINION
BOYCE F. MARTIN, JR., Circuit Judge.
James C. Janosek sued the City of Cleveland over the apparent overbilling of Janosek‘s company, Welded Ring Products, Co., for its water use from 1999 to
I.
Janosek owns a Cleveland-based company, Welded Ring Products, Co., that makes welded ring products for aircraft engines and other industries. Historically, Welded Ring used a large amount of water as a way of cooling the hydraulics used for its manufacturing, resulting in high water bills that Welded Ring paid to the City of Cleveland‘s Water Department, which controls the water supply in Cuyahoga County where Welded Ring is located.
While the date is not stated in either the briefs or the complaint, presumably in or before 1999 Janosek installed “six closed loop water chillers that he hoped would enable Welded Ring Products Co. to recapture the water it used to cool its hydraulics and thereby significantly decreas[e] its water consumption.” Instead of seeing a decrease in his water bills’ cost, Janosek continued to pay water bills in excess of $150,000 a year between 1999 and 2001. The water bills’ cost did not decrease significantly until 2002, when they dropped to between $10,000 and $25,000 a year.
In October 2009, eight years after the drop in the water bills’ costs, Janosek approached Cleveland‘s Law Department about the discrepancy in the water bills from 1999 to 2001, claiming that the Water Department overcharged him about $500,000 between 1999 and 2001, and billed him $36,000 for a water line that had been closed for more than ten years. Janosek believed that the Water Department‘s overbilling stemmed from a “practice and procedure of estimating the amount of water used and consumed by its customers based on said customer‘s prior usage and consumption,” and thus did not accurately reflect its customers’ water usage.1 In response to Janosek‘s inquiries, the Law Department referred Janosek to the City of Cleveland‘s Moral Claims Commission.
The Moral Claims Commission was established by Cleveland Codified Ordinance section 155.01 to consider monetary claims against Cleveland that Cleveland is not legally obligated to pay.
II.
We review de novo a district court‘s dismissal of a complaint for failure to state a claim under Rule 12(b)(6). Marks v. Newcourt Credit Grp., Inc., 342 F.3d 444, 451 (6th Cir. 2003) (citing Weiner v. Klais & Co., 108 F.3d 86, 88 (6th Cir. 1997)). As part of our analysis “we must construe the allegations of the complaint in the light most favorable to plaintiffs, accept all well-pled factual allegations as true, and decide whether the complaint contains sufficient facts to state a claim for relief that is plausible on its face.” U.S. Citizens Ass‘n v. Sebelius, 705 F.3d 588, 597 (6th Cir. 2013) (citing Dudenhoefer v. Fifth Third Bancorp, 692 F.3d 410, 416 (6th Cir. 2012)).
Janosek claims that the district court erred when it held that his claims were barred by the statute of limitations. He supports this claim only by saying that the district could not have determined from the face of his complaint whether his claims were time-barred because he did not specify a date on which he discovered the billing discrepancies. This argument is not persuasive, and the district court was correct when it dismissed the case.
Under Ohio law, an action against a political subdivision must be brought “within two years after the cause of action accrues.”
Janosek does not argue that there is a special discovery rule that could change the time of accrual,2 he merely asserts that there are not enough dates in the complaint for a district court to decide whether his claims were time-barred.
III.
Janosek next argues that the district court erred when it dismissed his federal due process claims by holding that Janosek had not alleged a protected liberty or property interest. Janosek says that the district court erred when it neglected to consider “the fact that the City of Cleveland afforded him a Moral Claims Commission Hearing which should have presented him with an opportunity to be awarded money from the City for its unlawful taking....” He further argues that the Moral Commission‘s scheduling of a hearing to consider his claim is further evidence that Janosek had a protected property interest in the subject matter of the hearing. This argument fails.
Procedural due process protections only apply to property and liberty interests recognized by the Fifth and Fourteenth Amendments. Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). To succeed on his claim, Janosek must establish the existence of a legitimate claim of entitlement, not merely state “[a]n abstract need or unilateral expectation.” Richardson v. Twp. of Brady, 218 F.3d 508, 517 (6th Cir. 2000). A government entitlement is not provided due process protections if “government officials may grant or deny it in their discretion.” Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 756, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005); Richardson, 218 F.3d at 517. Nor may a plaintiff assert a property right in government procedures themselves. Richardson, 218 F.3d at 517-18.
Any legitimate property interests that Janosek had in the overpayment of water bills lapsed once the statute of limitations ran. That the Moral Commission agreed to a hearing does not demonstrate that Janosek had an interest in the subject matter of the hearing. The entitlement to the hearing was entirely discretionary because the sole purpose of the Commission is to consider monetary claims that Cleveland is not legally required to pay. Furthermore, as the Ohio ordinance establishes, the Commission “may fix an award for the payment of the claim ... in the discretion of the Commission as a matter of grace and not as a matter of right.”
IV.
We AFFIRM the district court.