United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
Plaintiff Ronald Hasley brings this 42 U.S.C. § 1983 action against the City of Beatrice, Nebraska (“City”), and its mayor at the relevant time, Dennis M. Schuster, for alleged violations of his First, Fourth, and Fourteenth Amendment rights during late 2010 and early 2011. Hasley alleges that the City inspected and condemned his property after he ran against Schuster for mayor and, during the campaign, criticized Schuster’s prior performance as mayor.
As against Schuster in his individual capacity, Hasley asserts 42 U.S.C. § 1983 claims for retaliating against him when he exercised his First Amendment rights and for trespassing, inspecting, and condemning his property in violation of the Fourth Amendment. As to Schuster in his official capacity and the City of Beatrice, Hasley asserts section 1983 claims under the First and Fourth Amendments for failure to train and supervise City employees regarding their duty to not retaliate against individuals and for having a policy and practice of unlawfully retaliating against Hasley.
Defendants have moved for summary judgment based on qualified immunity and the merits. (Filing 53.)
I. UNDISPUTED FACTS
1. Plaintiff Ronald Hasley testified that since 2003, he has been involved in a number of disputes with the City of Beatrice regarding his properties and inspections thereof by City police and the City building inspector. (Filing 62-1 at CM/ECF pp. 1-7, Hasley Aff. ¶ 10.) Hasley maintains that since that time, whenever he publicly commented or criticized the City or the Beatrice mayor, the City issued to Hasley notices of property violations and contacted his tenants. (Filing 62-1 at CM/ECF pp. 1-7, Hasley Aff. ¶ 39.)
2. As a result of this alleged retaliatory conduct on the part of the City, on March 18, 2008, Hasley filed a letter with the City of Beatrice Clerk stating in part: “we will not allow any trespassing by any city employee or individuals contracted by the city of any departments or agencies working in conjunction with the city, to trespass or photograph any properties owned by Ron and/or Vicki Hasley or any company owned by Ron and/or Vicki Hasley.” Hasley requested that the letter be posted in all City departments. (Filing 62-1 at CM/ECF pp. 1-7, Hasley Aff. ¶ 19; Filing 62-1 at CM/ECF p. 8.)
3. In 2010, Hasley became a candidate for mayor of the City of Beatrice, an office then held by defendant Dennis Schuster. Prior to the November 2, 2010, election, Hasley actively campaigned, including using signs, speeches, and advertisements, as well as criticizing Schuster’s performance as mayor. Schuster won the election. (Filing 62-1 at CM/ECF pp. 1-7, Hasley Aff. ¶¶ 6-8, 41; Filing 27, Amended Complaint ¶ 9.)
4. The property that is the subject of this lawsuit is residential rental property at 1011 North 6th Street in Beatrice, Nebraska, that has been owned and managed by plaintiff Ronald and Vicki Hasley for over 20 years. The property was vacant at the relevant time, as Hasley was considering razing the property, along with adjacent property he also owned, in order to convert it into a commercial real estate development. (Filing 27, Amended Complaint ¶¶ 13; Filing 62-1 at CM/ECF pp. 1-7, Hasley Aff. ¶¶ 3-4.)
5. On January 4, 2011, Dennis Mitchell, the Chief Building Inspector for the City Inspections Department, filed an Application for Inspection Warrant in the County Court of Gage County, Nebraska, seeking permission to inspect Hasley’s property for suspected violations of the 2003 International Property Maintenance Code. Attached to the application was Mitchell’s affidavit, in which he stated that he had “reason to believe that [the Property] is in violation of Section 108 of the International Property Maintenance Code, 2003 Edition[.]” In support of that assertion, Mitchell provided the county court with six photographs of the property to support his suspicion that the structure had “a large hole in the roof, cracks in the foundation, insufficient weather protection, damaged fascia and eave overhangs and other deterioration.” (Filing 54-1.)
6. On January 4, 2011, the county court found “that the facts contained in [Mitchell’s] Affidavit and the evidence adduced constitute grounds for the issuance of an inspection warrant and that the inspection warrant should be issued.” Accordingly, the county court issued an inspection warrant that authorized Mitchell, a Beatrice code enforcement officer, and “other authorized personnel” to search Hasley’s property for “violation of the International Property Maintenance Code, 2003 Edition incorporated into the Beatrice City Code by Section 7-30 and deal with the same as by law provided and to make return of this warrant to me within ten (10) days after the date thereof.” (Filing 54-1 at CM/ECF p. 6.)
7. On January 5, 2011, Mitchell conducted his inspection of Hasley’s property with a City police officer and a City code enforcement officer. (Filing 54-1 at CM/ECF p. 7.) As a result of that inspection, Mitchell issued a Notice and Order of Condemnation on February 25, 2011, in which he detailed 23 violations of the 2003 International Property Maintenance Code that were supposedly discovered during the course of the inspection, and he notified Plaintiff that as a result of those violations, the property was unsafe and unfit for human occupancy. (Filing 54-2, Mitchell Dep. 21:12-22:3, at CM/ECF pp. 15-16; Filing 54-2 at CM/ECF pp. 21-23.) Mitchell believed that his observations during the course of his inspection provided him with good cause to issue the Notice and Order of Condemnation. (Filing 54-2, Mitchell Dep. 24:6-11, at CM/ECF p. 18.)
8. Hasley claims that prior to its condemnation, his property only had a small vent hole in the roof, and that it did not have a cracked foundation, insufficient weather protection, damaged fascia and eave overhangs, or other deterioration. (Filing 62-1 at CM/ECF pp. 1-7, Hasley Aff. ¶ 33.) As a result of the condemnation, Hasley incurred expenses, such as hiring an exterminator who performed tests and set traps, but found no “issues” requiring treatment. (Filing 62-1 at CM/ECF p. 5, Hasley Aff. ¶ 31; Filing 62-1 at CM/ECF pp. 34-35 (invoices from Ken’s Pest Control).)
9. Hasley believed that at least three of the photographs submitted in support of the warrant application could only have been obtained by a photographer who was on Hasley’s property without his permission. (Filing 62-1 at CM/ECF pp. 1-7, Hasley Aff. ¶ 17.) Therefore, Hasley filed a Petition for Temporary Injunction against the City of Beatrice, Dennis Mitchell, and the Beatrice code enforcement officer who participated in the property inspection. (Filing 62-1 at CM/ECF pp. 1-7, Hasley Aff. ¶ 23.) Judge Daniel Bryan of the District Court of Gage County issued a temporary injunction against the City of Beatrice, as follows:
The Plaintiff’s Motion for Temporary Injunction is granted to the degree that the City is enjoined from harassing, intimidating, or making any derogatory comments about Ronald P. Hasley . . . . The City has the right to continue to enforce its city codes as long as it does so without ...