1:12-cv-1338 WILLIAM RUSSELL GARDNER v. Jason Evans

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0023p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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1:12-cv-1338
WILLIAM R USSELL GARDNER, et al.,
Plaintiffs-Appellees,
v.
J ASON EVANS , et al.
Defendants,
DAVID B RAND; STEVE M ALONEY; SCOTT SANFORD ;
GREGG S CRIMGER,
Defendants-Appellants.
1:12-cv-00914
HENRY LEE HOLSEY,
Plaintiff-Appellee,
v.
AARON WIEBER, et al.,
Defendants,
SCOTT SANDFORD ,
Defendant-Appellant.
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No. 15-1200
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
Nos. 1:12-cv-00914; 1:12-cv-01338—Robert J. Jonker, District Judge.
Argued: December 9, 2015
Decided and Filed: February 4, 2016
Before: BATCHELDER and GRIFFIN, Circuit Judges; CARR, District Judge.
The Honorable James G. Carr, Senior United States District Judge for the Northern District of Ohio,
sitting by designation.
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No. 15-1200 Gardner, et al. v. Evans, et al. Page 2
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COUNSEL
ARGUED: F. Joseph Abood, OFFICE OF THE CITY ATTORNEY, Lansing, Michigan, for
Appellants. J. Nicholas Bostic, Lansing, Michigan, for Appellees. ON BRIEF: Mary
Massaron, PLUNKETT COONEY, Bloomfield Hills, Michigan, for Appellants. J. Nicholas
Bostic, Lansing, Michigan, for Appellees.
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OPINION
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ALICE M. BATCHELDER, Circuit Judge. The district court denied the defendants’
motions for summary judgment on grounds of qualified immunity, holding that the defendants
should have known that because the eviction notices they issued lacked specific information
advising of the available appeals process, those notices were constitutionally inadequate. We
must decide whether our decision in J.C. Flatford v. City of Monroe, 17 F.3d 162 (6th Cir. 1994),
clearly established that a notice of eviction must include a direct explanation of the post-
deprivation appeals process. Because we do not think that Flatford clearly established such a
rule, we REVERSE the decision of the district court.
I.
Between December 9, 2009, and May 8, 2010, William Gardner and seven of his fellow
plaintiffs (collectively, “Tenants”) were evicted from their respective homes in Lansing,
Michigan, for alleged violations of the Lansing Housing and Premises Code. Jason Evans and
the other defendants are the code compliance officers (collectively, “Inspectors”) who inspected
the buildings and issued the notices of eviction. In each instance, the evictions followed an
inspection of the buildings conducted in conjunction with criminal drug investigations.
After the respective Inspector went through each of the homes, he summarized his
findings in an eviction “red-tag” notice form, which he gave to the home’s Tenant. Each red-tag
was filled out as specified by the Lansing Housing and Premises Code § 1460.07. But none of

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No. 15-1200 Gardner, et al. v. Evans, et al. Page 3
the red-tags provided any information regarding the occupant’s right to appeal the inspector’s
decision and receive an administrative hearing. Each red-tag stated:
You must contact the undersigned, no later than seven days before the
compliance due date, to set up an appointment to meet at the structure (to verify
that all corrections have been completed) or to acquire an authorized extension.
Before the re-inspection you must obtain all required permits and have those
repairs inspected and approved by the appropriate inspector.
All violations must be corrected with approved materials and methods. If
you have any questions or concerns about complying within the time indicated,
you may contact at (517) 483-4064 Monday through Thursday between the hours
of 8-9 AM or 12-1 PM. [Name of the officer to contact.]
The red-tag notices failed to reveal that § 1460.12 of the Lansing Housing and Premises Code
outlines a post-deprivation appeals process and directs that if an evicted occupant fails to file an
appeal within twenty days after receiving a red-tag, the occupant waives the right to
administrative review. Unaware of these requirements, none of the Tenants filed an appeal
within the twenty-day period, and thus all of them inadvertently waived their right to an
administrative review. Without recourse to any administrative remedy, the Tenants’ sole option
was to pursue a judicial remedy.
The only question presented to us in this appeal is whether the district court erred by
denying the Inspectors’ qualified immunity defense with respect to the constitutional adequacy
of the notice given to the Tenants.
II.
To overcome the defense of qualified immunity, a plaintiff “must, at a minimum, offer
sufficient evidence to create a genuine issue of fact, that is, evidence on which [a] jury could
reasonably find for the plaintiff.” DiLuzio v. Village of Yorkville, 796 F.3d 604, 608–09 (6th Cir.
2015) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 256 (1986)) (internal
quotation marks omitted). But where, as here, the facts surrounding a question of qualified
immunity are not in dispute, “the district court’s denial of qualified immunity is subject to de
novo review.” Thomas v. Cohen, 304 F.3d 563, 568 (6th Cir. 2002). In determining whether a
defendant is entitled to qualified immunity, we consider two questions: First, did the defendant

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No. 15-1200 Gardner, et al. v. Evans, et al. Page 4
violate a constitutional right? And second, were the contours of that right clearly established?
Quigley v. Tuong Vinh Thai, 707 F.3d 675, 680–81 (6th Cir. 2013).
A.
First, we address whether a constitutional violation occurred. The Tenants argue that the
Inspectors violated their due process rights by failing to provide constitutionally sufficient notice
of their ability to appeal the red-tag evictions. See Flatford, 17 F.3d at 168–69. In response, the
Inspectors assert that the telephone number and the offer to answer questions was sufficient to
satisfy the constitutional notice requirement. See Silvernail v. Cnty. Of Kent, 385 F.3d 601, 604–
05 (6th Cir. 2004). They also assert that, because the Lansing Housing and Premises Code was
extant and available to the public, the Tenants had constructive notice of the appeals process.
See City of West Covina v. Perkins, 525 U.S. 234, 240–41 (1999). The district court agreed with
the Tenants, holding that our precedent in Flatford clearly established that direct and clear notice
of an appeals process is necessary to satisfy the constitutional notice requirement.
“The essence of due process is the requirement that a person in jeopardy of serious loss
be given notice of the case against him and opportunity to meet it.” Mathews v. Eldridge,
424 U.S. 319, 348 (1976) (quoting Joint Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 171–72
(1951) (Frankfurter, J., concurring)) (internal quotation marks and alterations omitted). In cases
where tenants are deprived of the right to occupy their homes for any length of time,
“fundamental fairness requires notice in short order of the right to an administrative hearing,
including the manner designated for obtaining timely review.” Flatford, 17 F.3d at 169 (footnote
omitted). These general principles are well-established, but there are no bright-line rules
regarding how such notice must be given or how many details it must include. Rather, the
sufficiency of notice requires a fact-based analysis that seeks to determine whether the notice is
“reasonably calculated to inform the Plaintiffs of the allegations against them and provide[] a
means for responding to the allegations.” Silvernail, 385 F.3d at 605.
For purposes of deciding this case, we need not determine whether the red-tags provided
by the Inspectors meet the constitutional notice standard that we have just outlined. Even if we
assume, without deciding, that the Tenants are correct and that the red-tags were constitutionally

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No. 15-1200 Gardner, et al. v. Evans, et al. Page 5
infirm, the Tenants cannot satisfy the second prong of the qualified immunity analysis, namely,
whether this constitutional notice requirement was clearly established.
B.
The district court held that “[a]t least since Flatford, it has been clearly established in this
Circuit that meaningful post-deprivation review process is constitutionally required, and that
direct, personal notice of such a process to affected individuals is also required.” Gardner v.
Evans, Nos. 1:12cv1338, 1:12cv914, 2015 WL 403166 at *18 (W.D. Mich. Jan. 28, 2015). We
disagree.
The Supreme Court has stated that, in order for a qualified immunity defense to fail,
[t]he contours of the right [at issue] must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right. This is not to
say that an official action is protected by qualified immunity unless the very
action in question has previously been held unlawful, but it is to say that in the
light of pre-existing law the unlawfulness must be apparent.
Anderson v. Creighton, 483 U.S. 635, 640 (1987) (internal citations omitted); see also Thomas v.
Cohen, 304 F.3d 563, 568–69 (6th Cir. 2002). Applying this standard to the present case, the
Tenants’ position fails because any inadequacies in the notice provided by the Inspectors would
not have been apparent to a reasonable official solely upon the basis of Flatford.
In Flatford, our primary concern was who received the notice, not what the notice must
include. See Flatford, 17 F.3d at 169. There, the official inspector gave detailed notice of the
alleged violations and available avenues for redress to the landlord but not to the tenants who
actually held possessory interests in the premises. Id. We held that the inspector’s actions were
“objectively unreasonable” because he knew that the Flatfords, the tenants, were not being
allowed to enter their home and yet they were never given any information as to why they were
evicted, whom they could contact, when they could expect relief, or how they could seek relief.
Id. Thus, Flatford stands for the principle that the tenant is entitled to the same notice that is
afforded to the landlord. But it does not clearly establish the particularity or specificity required
for such notice.

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No. 15-1200 Gardner, et al. v. Evans, et al. Page 6
A diversity of precedent highlights this general lack of clarity regarding the notice
requirement for a post-deprivation appeals process. For example, in West Covina, the Supreme
Court noted that “neither the Federal Government nor any State requires officers to provide
individualized notice of the procedures for seeking return of seized property.” West Covina,
525 U.S. at 242–43. There, as here, officers had seized the plaintiffs’ property and provided
them with a notice form that explained the seizure and gave a phone number to call for further
information. Id. at 236–37. The Court stated that as long as the review process was available to
the plaintiffs through an extant, publicly available source, then the officers were not responsible
for providing particular notice of the remedies and process available. Id. at 241–43.
The generalized notice provided was sufficient to satisfy due process. See, e.g., Grayden v.
Rhodes, 345 F.3d 1225, 1244–45 (11th Cir. 2003) (holding under similar circumstances that “a
reasonable [housing] code enforcement officer could readily have concluded that [he] was under
no obligation to provide notice . . . of the tenants’ right to challenge the condemnation decision”
because that right was specified in a published, “generally available” city code).
Moreover, in Silvernail, we indicated that even though the plaintiffs’ notice included only
a phone number and an offer to answer questions, such notice was “reasonably calculated to
inform the Plaintiffs of the allegations against them and provided a means for responding to the
allegations.” Silvernail, 385 F.3d at 605. More specific notice was not required. Id. at 604–05.
We need not multiply examples on this point. Flatford did not clearly establish that a
notice of eviction must include an explicit reference to the availability of any post-deprivation
appeals process and the manner in such an appeal may be pursued. The case law is not so clear
on this point as to render the Inspectors’ actions unreasonable.
III.
Because we conclude that the type of notice required in these situations was not clearly
established, we REVERSE the decision of the district court, and REMAND the case for
proceedings consistent with this opinion.

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