         NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                    File Name: 07a0434n.06
                      Filed: June 21, 2007

                                    No. 06-3452

                   UNITED STATES COURT OF APPEALS
                        FOR THE SIXTH CIRCUIT

RACHAEL COX                                      )
                                                 )
      Plaintiff- Appellant,                      )       ON APPEAL FROM THE
                                                 )       UNITED STATES
v.                                               )       DISTRICT COURT FOR
                                                 )       THE    SOUTHERN
JAMES DRAKE, OFFICER, ET AL.,                    )       DISTRICT OF OHIO
                                                 )
      Defendants-Appellees.                      )             OPINION


Before: GILMAN and SUTTON, Circuit Judges, and TARNOW, District Judge*

      ARTHUR J. TARNOW, District Judge. Plaintiff Rachael Cox brought suit

in the district court claiming that Defendants violated her Fourteenth Amendment
Due Process rights in connection with their involvement in an alleged eviction from
her rented residence. The district court determined that Plaintiff was not deprived of

her possessory interest in her rented property under Fourteenth Amendment due
process analysis. As a result, the district court granted Defendants’ motion for
summary judgment and dismissed the case. We AFFIRM the district court’s
determination that summary judgment is appropriate because Plaintiff was not

deprived of her possessory interest in her rented home by state action.
Factual History
      Since December 1, 2001, Plaintiff Rachael Cox rented a residence located at
4267 Redmont Avenue in the City of Deer Park from landlord Betty Nabors.
Plaintiff’s former husband Johnny Cox occasionally stayed at the residence with her
and her son. Rachael Cox admits that both she and Johnny Cox used crack cocaine
at the house at least a dozen times prior to the alleged eviction. Rachael Cox would
give money to Johnny Cox so that he could buy drugs for both her and her

acquaintances, who also used the drugs at her home. However, she denies that she
ever sold drugs or that she ever personally bought crack.

      On November 10, 2003, after using crack and becoming ill, Rachael Cox
telephoned her mother asking for help. After arriving at the Redmont residence, her

mother called 911. Soon thereafter, City of Deer Park police officers arrived at the
residence along with an ambulance and medical personnel. Officer James Drake was

one of the officers who arrived at the scene. The paramedics proceeded to transport
Rachael Cox to University Hospital for treatment for a cocaine overdose. No arrests

were made.
      The November 10 incident was the impetus for Rachael Cox to stop using

drugs. She began attending Alcoholics Anonymous meetings, and found herself a
sponsor within the group. Despite her change in lifestyle, Rachael Cox claims that
the Deer Park Police Department, in particular Officer Drake, began to harass her and
her acquaintances.


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      Officer Drake admits that there was a departmental decision to “watch the
house, to make sure that… [the Police Department was] aware of what was going on

in the residence.” The City of Deer Park Police Chief approved of the decision to
watch Rachael Cox’s house. According to Officer Drake, this was not the first

instance where this method of surveillance had been used on a particular residence
by the City of Deer Park Police Department.

      During the first week of December 2003, Officer Drake pulled over Johnny
Cox, who was driving Rachael Cox’s car, because the license plate light was not

functional. Officer Drake asked to search the car, but Johnny Cox refused. Officer
Drake in turn radioed for search dogs from a neighboring city. The search dogs

arrived, but nothing illegal was discovered.
      On April 1, 2004, Officer Drake pulled over Rachael and Johnny Cox in order
to arrest Johnny Cox for his failure to pay the traffic ticket he had received from the
December 2003 traffic stop. Officer Drake approached the car with his gun drawn
and told Johnny Cox to step out of the car. Once out of the car, Officer Drake patted
him down, found a small pocket knife on his person and proceeded to handcuff him.
      After complying with the officers’ instruction to exit the car, Rachael Cox
agreed to an officer’s request to search her car. During the search, Rachael Cox

claims that Officer Drake remarked that she was in a lot of trouble and that the police
had an appointment to speak with her landlord at 3:00 p.m. to inform her about all the
trouble Rachael Cox was causing.
      Later that day, Rachael Cox called Officer Drake and requested a meeting to


                                     Page 3 of 13
discuss the situation. They agreed to meet at the police station. During the meeting,
Officer Drake informed Rachael Cox that a total of 16 separate 911 calls had been

placed by her neighbors concerning incidents at the residence. According to Rachael
Cox, Officer Drake also told her that “he didn’t want people like [her] in their

neighborhood, that [she] needed to leave, and that [she] needed to find a new
residence.” Officer Drake also mentioned that he was going to speak to her landlord

and tell the landlord that her house might be subject to abatement procedures if
Rachael Cox was not evicted. Officer Drake denies making these remarks.

      In response, Rachael Cox told Officer Drake that she was clean and sober. To
demonstrate her sincerity, she offered to take a urine test. Officer Drake refused the

offer and instead insisted that she “needed to find a new place to live,” and that she
“had to leave Deer Park” because she was going to be evicted. Again, Officer Drake
denies that he made these remarks.
      On March 30, 2004, Officer Drake contacted Rachael Cox’s landlord, Betty
Nabors, by telephone. He told her that he needed to talk to her in person about
problems concerning the 4267 Redmont Avenue residence. A meeting was scheduled
for April 1, 2004 in the late afternoon.
      During either the phone call or the April meeting, Officer Drake told Nabors

about the volume of phone calls the police had received related to 4267 Redmont
residence. This was the first time that Nabors had heard about such complaints.
Besides being late with rent and water bill payments, Nabors had few problems with
Rachael Cox. During the face-to-face meeting, Officer Drake informed Nabors that


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she could not continue to rent to somebody who is known to be involved in drug
activity under Ohio’s abatement procedure law.1 Officer Drake asked Nabors whether

she “could do something about this,” which Nabors understood to be a suggestion
that she evict Rachael Cox. Officer Drake disputes that he requested or even

suggested that Nabors evict Rachael Cox. He claims that after reading the crime
blotter concerning the residence, Nabors stated that she was going to have to take care

of the problem.
       After the meeting, Nabors went to the 4267 Redmont residence. She knocked

on the door and Rachael Cox answered. Nabors then handed Rachael Cox a three-day
“Notice to Leave the Premises” that had been faxed to Nabors earlier by her attorney

that she subsequently completed. According to Nabors, Rachael Cox responded to
the notice by saying, “I’m leaving, I don’t want to cause you any trouble” and “I’m
sorry… you’re brought into this.” Nabors responded by telling Cox: “I don’t want
you to leave, I don’t know, I said the police said I had to. But I said—you know, after
the meeting and stuff, I have to Rachael.”
       Rachael Cox claims that a few days later Nabors called to tell her that she felt
that what the police were doing to Rachael was wrong. Nabors also expressed her
desire to not have Rachael Cox leave the 4267 Redmont residence.

       Officer Drake allegedly followed up Nabor’s three-day notice with a phone call



       1
        Ohio’s mandatory eviction statute requires landlords to evict tenants if they know or
have a reasonable suspicion that drug use or distribution is taking place in the residence or
possibly face misdemeanor charges and/or abatement pursuant to Ohio Rev. Code Ann. § 3767.


                                         Page 5 of 13
to Rachael Cox. He told Rachael Cox that she needed to leave the 4267 Redmont
residence “as soon as possible” and asked for a specific date. Officer Drake denies

that either the phone call or the conversation took place.
      Although the notice gave her until April 5 to vacate the premises, Rachael Cox

asked Nabors that she be given until April 15. Soon thereafter, Rachael Cox moved
out. As a result, Nabors did not follow through with a forcible entry and detainer

(statutory eviction) proceeding.

Procedural History
      Plaintiff filed a complaint in federal district court pursuant to 42 U.S.C. § 1983
against Officer Drake, alleging the he deprived her of her constitutional rights under

both the Ninth Amendment and the Due Process Clause of the Fourteenth
Amendment. Rachael Cox also claimed that Officer Drake defamed her. Apx. 5.

Both the Ninth Amendment and defamation claims were later abandoned. In terms
of her Fourteenth Amendment claim, Plaintiff argues that Officer Drake, acting under

the color of law, used his position to cause Betty Nabors to declare a violation of the
lease in order to effect her eviction. After discovery, the district court granted

Plaintiff’s motion for leave to amend the complaint to include Police Chief Guille and
the City of Deer Park as defendants.

      Defendants filed a joint motion for summary judgment. The district court later
granted the motion as to all Defendants. The court determined that even though
Plaintiff had a constitutionally protected possessory interest in the 4267 Redmont
residence and even though Officer Drake’s actions “were arguably reprehensible,”


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“Cox was never deprived of physical access to her house by the police, or anyone
else, for that matter…” Because the actions did not amount to an eviction under Ohio

law, the district court concluded that Plaintiff’s alleged facts did not amount to a
“deprivation of Cox’s possessory property interest.” The district court did not reach

the questions of whether there was state action, whether Officer Drake was acting
pursuant to an official policy or custom, or whether Defendants would have been

entitled to qualified immunity.
      Plaintiff filed a timely notice of appeal, arguing that the district court erred in

its decision to grant summary judgment based on the lack of a constitutional
deprivation.

Standard of Review
      We review a district court’s decision to grant summary judgment de novo.

GMC v. Larned Toys, Inc., 468 F.3d 405, 412 (6th Cir. 2006)(citation omitted).
Summary judgment is only appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “In reviewing a summary
judgment motion, credibility judgments and weighing of the evidence are prohibited.

Rather, the evidence should be viewed in the light most favorable to the non-moving
party.” Id. at 412 (quotation and citations omitted). Thus for this appeal, all fact
disputes will be resolved in favor of the Plaintiff.

Due Process Analysis


                                      Page 7 of 13
      Plaintiff contends that Defendants violated her Fourteenth Amendment Due
Process rights by depriving her of the use and enjoyment of the 4267 Redmont

residence without a predeprivation hearing. To adequately plead a 42 U.S.C. § 1983
claim, Plaintiff must allege that a defendant, acting under state law, deprived her of

a right secured by the Constitution or laws of the United States- in this instance, the
Fourteenth Amendment right to due process. Thomas v. Cohen, 304 F.3d 563, 568

(6th Cir. 2002). The Due Process Clause of the Fourteenth Amendment guarantees
that “no State shall deprive ... any person of life, liberty, or property without due

process of law.” U.S. Const. amend. XIV. “It is well established that possessory
interests in property invoke procedural due process protections.” Thomas, 304 F.3d

at 576 (citing Fuentes v. Shevin, 407 U.S. 67, 82 (1972)). “In procedural due process
claims, the deprivation by state action of a constitutionally protected interest in ‘life,
liberty, or property’ is not in itself unconstitutional; what is unconstitutional is the
deprivation of such an interest without due process of law.” Zinermon v. Burch, 494
U.S. 113, 125 (U.S. 1990). The “root requirement” of the Due Process Clause is that
in most cases “an individual be given an opportunity for a hearing before he is
deprived of any significant property interest.” Cleveland Bd. of Ed. v. Loudermill,
470 U.S. 532, 542 (1985) (hereinafter “Loudermill”) (quoting Boddie v. Connecticut,

401 U.S. 371, 379 (1971)).
      Procedural due process claims are examined under a two-part analysis.
      First, the court must determine whether the interest at stake is a
      protected liberty or property right under the Fourteenth Amendment.
      Only after identifying such a right do we continue to consider whether
      the deprivation of that interest contravened notions of due process.

                                      Page 8 of 13
Thomas, 304 F.3d at 576.
      In terms of the first part of the procedural due process analysis, it is settled that

under Ohio law, Plaintiff, as a leasehold tenant, had a recognized property interest in
the 4267 Redmont residence for Fourteenth Amendment purposes. See Ohio Rev.

Code Ann. § 5321.01; Thomas, 304 F.3d at 576.
      After identifying the protected right, we next turn to whether the deprivation

contravened the notions of due process. “It is well settled that a temporary, nonfinal
deprivation of property is ‘nonetheless’ a deprivation in terms of the Fourteenth

Amendment, and must be preceded by a fair hearing.” Fuentes v. Shevin, 407 U.S.
67, 84-85 (1972). “In Feuntes v. Shevin, the Supreme Court held that due process

requires notice and a hearing prior to eviction.” Flatford v. City of Monroe, 17 F.3d
162, 167 (6th Cir. 1994). When a state actor is actively involved in an unlawful
eviction, a deprivation occurs which triggers procedural due process rights even if
post-deprivation proceedings are available that may be used as a remedy. See Soldal
v. Cook County, 506 U.S. 56 (1992) (illegal removalof trailer home by private mobile
home park owner with county deputy sheriffs present to prevent interference was not
only held to be a “seizure” of property for the purposes of the Fourth Amendment, but
also actionable separately under the Fourteenth Amendment for lack of procedural

due process); Thomas, 304 F.3d 563 (a majority upheld district court’s determination
that qualified immunity and summary judgment was not appropriate for officers who
helped transitional shelter unlawfully evict residents without prior notice and hearing
in violation of the Fourteenth Amendment); Flatford, 17 F.3d 162 (affirming the


                                      Page 9 of 13
district court’s denial of qualified immunity to building inspector when he along with
police officers evicted tenants from apartment building because of unsafe conditions

without prior notice or hearing because he did not act reasonably when he deprived
plaintiffs of right to their leasehold property interest, but reversing the district court’s

denial of qualified immunity to police officers, holding that they acted reasonably
under the exigent circumstances of unsafe conditions).

       It is undisputed that Plaintiff was not afforded a hearing. However, the Thomas
analysis does not end there because we must determine whether a deprivation

occurred. The district court tried to answer this question by examining whether
Plaintiff was “evicted” as defined by Ohio statute and Ohio case law.2 The district

court determined that the undisputed facts failed to amount to either an actual or
constructive eviction under Ohio law because Rachael Cox voluntarily left the
premises after receiving the “Notice to Vacate the premises” from her landlord. As
a result, the district court granted Defendants’ motion for summary judgment
determining that Plaintiff failed to present evidence of a deprivation.
       We agree with the district court, many of the critical facts are undisputed. The


       2
        An eviction is either actual or constructive under Ohio law. McAlpin v. Woodruff, 11
Ohio St. 120 (1860). To constitute an actual eviction under Ohio law, there must be some act of
the landlord that compels the abandonment of the property. The mere notice to vacate or demand
for possession is not an eviction, since it is a precatory step to instituting an action for forcible
and entry and detainer pursuant to Ohio Rev. Code Ann. § 1923.04. Greenberg v. Murphy, 16
Ohio C.D. 359 (Ohio Cir. Ct. 1904). However, a notice to vacate by the property owner that the
tenancy is being terminated, combined with a demand for possession, is not an actual eviction for
which damages may be covered. Greenberg, 16 Ohio C.D. at 3. Constructive eviction is the
surrender of possession because some act of interference compels the tenant to leave. Liberal
Sav. & Loan Co. v. Frankel Reality Co., 137 Ohio St. 489, 499 (1940).

                                           Page 10 of 13
landlord gave Rachael Cox notice that is both required by law and prerequisite to a
forcible entry and detainer (statutory eviction) action. However, Rachael Cox vacated

the premises before such an action was required and prior to a hearing. Moreover,
Defendants did not physically seize the property nor were they present when Plaintiff

vacated her premises. In spite of these facts, Plaintiff contends that Officer Drake’s
alleged intimidating actions and not-so-subtle threats to both her and her landlord

amounted to a constructive eviction similar to the one effectuated in Thomas. 304
F.3d 563. Rachael Cox relies on the part of Judge Clay’s dissent in Thomas, where

he noted “the lack of physical force is not terribly germane inasmuch as the police
effectuated the eviction by the very apparent and not too subtle threat… of dire legal

consequences should the tenants not comply with the officers’ instructions to vacate
the property.” 304 F.3d at 572.      Even if this portion had been adopted by the
majority, which it was not, the facts of Thomas are still inapposite since in Thomas
the state actors were physically present when they unquestionably ordered and
escorted tenants from their rooms. In contrast, it was Nabors, the private landlord,
who asked Rachael Cox to leave the premises by way of the “Notice to Vacate the
Premises” form without any state actors present.
      In response, Plaintiff claims that Nabors was coerced to initiate the eviction

process through Officer Drake’s actions, his statements, and the Deer Park Police
Department policy. A state actor under some circumstances can be held responsible
for a private decision
      when [the State actor] has exercised coercive power or has provided
      such a significant encouragement, either overt or covert, that the choice

                                    Page 11 of 13
      must in law to be that of the State... Mere approval or acquiescence in
      the initiatives of a private party is not sufficient for those initiatives
      under the terms of the Fourteenth Amendment...

Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)(citations omitted).
      We nonetheless do not find this argument persuasive. Had Defendants been

forcibly removed or barred Plaintiff from entering the premises without following
Ohio’s forcible detainer procedures, Plaintiff would have an actionable claim because

she was deprived of her leasehold interest. Additionally, had Defendants entered the
premises and actively participated in a constructive eviction, such as ordering and
escorting Plaintiff out of the premises, without following the statutory eviction
procedures, this too would amount to an actionable claim. But that is not what
transpired. Plaintiff was given notice to vacate through her landlord, which she later
complied with by voluntarily vacating the premises outside the presence of state
actors. Although Officer Drake may have encouraged Rachael Cox to vacate the
premises, it was ultimately her decision to comply with the notice. In contrast, the
officers in Thomas entered into the tenants’ rooms, announced that the tenants had
to leave, refused to listen to the tenants’ position, and then escorted them out of the

shelter all the while without the necessary eviction papers. Here, Rachael Cox had
a choice to vacate the premises or challenge an eventual eviction, unlike the tenants

in Thomas who themselves attempted to challenge the eviction while the officers
were present but were not allowed to do so. Although there may be cases where an

officer’s mere psychological coercion of a tenant to vacate or a landlord to evict a
tenant from the premises may constitute a deprivation of property, such as a case that

                                     Page 12 of 13
includes threats of violence, this is not such a case. As a result, we determine that
Plaintiff was not deprived of the use of her rented premises due to state action.

Accordingly, the district court’s order dismissing the case is AFFIRMED.3




       3
       This opinion does not address the lawfulness and constitutionality of either the
mandatory eviction statute or the City of Deer Park’s surveillance policy.

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