Plinton v. County of Summit

• Citation: 540 F.3d 459
• Decision Date: 02 September 2008
• Docket Number: No. 07-3985.,No. 07-4103.,07-3985.,07-4103.
• Parties: Charles PLINTON, Father and Administrator of the Estate of Charles Theordore Plinton, Deceased, Plaintiff-Appellant, v. COUNTY OF SUMMIT, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

540 F.3d 459

Charles PLINTON, Father and Administrator of the Estate of Charles Theordore Plinton, Deceased, Plaintiff-Appellant, v. COUNTY OF SUMMIT, et al., Defendants-Appellees.

No. 07-3985.

No. 07-4103.

United States Court of Appeals, Sixth Circuit.

Argued: July 31, 2008.

Decided and Filed: September 2, 2008.

ARGUED: Robert C. Meeker, Akron, Ohio, for Appellant. Orville L. Reed, III, Buckingham, Doolittle & Burroughs, LLP, Akron, Ohio, Susan Baker Ross, Summit County Prosecutor's Office, Akron, Ohio, for Appellees. ON BRIEF: Edward L. Gilbert, Michael J. Wright, Edward L. Gilbert Co., LPA, Akron, Ohio, for Appellant. Orville L. Reed, III, David W. Hilkert, Buckingham, Doolittle & Burroughs, LLP, Akron, Ohio, Randall W. Knutti, Office of the Ohio Attorney General, Columbus, Ohio, Susan Baker Ross, Summit County Prosecutor's Office, Akron, Ohio, for Appellees.

Before: KENNEDY, GILMAN, and GIBBONS, Circuit Judges.

OPINION

KENNEDY, Circuit Judge.

Plaintiff Charles Plinton appeals the district court's grant of summary judgment to defendants the County of Summit ("County") and police officer Keith Lavery ("Lavery").¹ Plaintiff also appeals the dismissal of his claim for injunctive relief against the University of Akron ("University"), a state university. Plaintiff's son, Charles Theodore Plinton ("Chuck"), was arrested, tried and then acquitted of selling marijuana at the University in 2004. On the day of his arrest, the University suspended Chuck from school pending the resolution of his criminal trial and an appearance in front of the University Hearing Board ("Board"). Chuck was acquitted of the criminal charges against him on August 11, 2004. In spite of the acquittal, the Board found Chuck "responsible" for violating the University code of conduct and suspended him for an additional semester to follow the Fall 2004 semester. In December 2005, Chuck committed suicide.

On August 4, 2006, Plaintiff filed this action in federal district court based on 42 U.S.C. § 1983 against the County, Lavery, and Newman, alleging that they had violated Chuck's constitutional rights by maliciously prosecuting him for marijuana trafficking. Plaintiff also sued the University, alleging that the hearing procedures had violated Chuck's due process rights, for which plaintiff sought an injunction to prevent the University from using those procedures in the future.² A day before, on August 3rd, Plaintiff sued the University and assorted University employees, among them the arresting officer Lavery, in the Ohio Court of Claims for the same conduct.³ The County prevailed on summary judgment in district court where the court held that Lavery was a state employee whose conduct could not be ascribed to the County. In the alternative, the court held that even if Lavery were a County employee, Plaintiff lacked evidentiary support for his failure-to-train claim. Lavery won summary judgment in the district court because Plaintiff had represented in the Ohio Court of Claims that Lavery was a state employee and the nature of Lavery's employment indicated that he was a state employee. The district court granted the University judgment on the pleadings because of Plaintiff's lack of standing. Plaintiff appeals these decisions in addition to statements made in the district court's opinion couched in the language of a holding and an associated footnote regarding a wrongful death claim that Plaintiff had not brought. For the reasons that follow, we AFFIRM the judgment of the district court.

BACKGROUND

Chuck was a graduate student pursuing a masters degree in public administration from the University beginning in the fall of 2003. On April 26, 2004, he was arrested for allegedly selling marijuana on campus. On the same day, Lavery reported the arrest to the University, and as a result, Chuck was suspended by the University pending the criminal proceedings against him and a Board hearing, pursuant to University policy. After Chuck's acquittal, the Board, following a hearing and relying in part on Lavery's testimony, decided to suspend Chuck for one additional semester to follow the Fall 2004 semester. Chuck left school and obtained employment selling insurance. He committed suicide in December 2005.

Lavery started as a police officer with the University in 1998. In 2002, Lavery, who had risen to the rank of sergeant, was assigned to the Summit County Drug Unit ("SCDU"). Established in 1991, the SCDU was a multi-jurisdictional unit designed to combat drug trafficking in Summit County, Ohio, where the University is located. Lavery worked in the SCDU full time dealing with drug cases. When Lavery began with the SCDU, he was not given written copies of the SCDU's policies, nor was he formally trained on them. He did profess to know the policies' contents and to have received on-the-job training. Lavery began to investigate drug deals on the University campus where Chuck lived in early 2004. His investigation led him to arrest Chuck in April of 2004.

On August 4, 2006, Plaintiff filed this § 1983 action against the University, Lavery and the County, among others, in the Northern District of Ohio. A day earlier, Plaintiff had filed suit in the Ohio Court of Claims against the University and assorted University employees, including Lavery. The Court of Claims proceeding is ongoing with respect to Plaintiff's claims for breach of contract and intentional infliction of emotional distress. His claim for wrongful death and his request for a declaratory judgment that Lavery acted in bad faith have both failed. The district court awarded summary judgment to Lavery and the County, and judgment on the pleadings to the University. This appeal followed.

ANALYSIS

I. Lavery

The district court granted summary judgment to Lavery on the ground that he was a state employee. In proceeding in the Ohio Court of Claims against the state for his son's death and suspension, Plaintiff represented that Lavery was a state employee in order to receive damages from the state for Lavery's actions. This raised a problem with his claims in federal court, then, because Ohio Revised Code ("O.R.C.") § 2743.02(A) provides that the state waives its immunity from liability in the Ohio Court of Claims in exchange for a waiver from Plaintiff from filing "any cause of action, based on the same act or omission, which the filing party has against any officer or employee. . . ." "Officer or employee" as defined by O.R.C. § 109.36 refers to state employees. To avoid O.R.C. § 2743.02(A) and have his claims heard in federal district court, Plaintiff argued there that Lavery was not a state employee. The district court granted summary judgment in favor of Lavery, calling Plaintiff's unchallenged assertions in the Court of Claims "admissions" of the fact that Lavery was a state employee.

The district court's opinion made clear that the court would "reconsider the decision" if "the Court of Claims determines that Defendants Lavery and/or Newman are/is not entitled to immunity" in accordance with O.R.C. § 2743.02(A)(1). In the Ohio Court of Claims, Plaintiff's claims were quickly dismissed as to all defendants except the University, under O.R.C. § 2743.02(E).⁴ The Court of Claims subsequently granted partial summary judgment to the University on Plaintiff's wrongful death claim. The court held that suicide was an intervening cause of death. Plinton v. Univ. of Akron, No.2006-04989 at 10 (Ohio Ct.Cl. Dec. 12, 2007) (decision granting the University partial summary judgment). The court also ruled that Lavery, among others, deserved immunity for lack of behavior "manifestly outside the scope of [his] employment or with malicious purpose, in bad faith, or in a wanton, reckless manner." Id. at 5 (decision of immunity for Lavery). The liability phase of the trial for the remaining claims is currently scheduled for April 2009.

Plaintiff now argues in federal court that Lavery is not a state employee and therefore he ought not receive immunity. Dismissal was proper, however, under Leaman v. Ohio Department of Mental Retardation & Development Disabilities, 825 F.2d 946 (6th Cir.1987) (en banc), cert. denied, 487 U.S. 1204, 108 S.Ct. 2844, 101 L.Ed.2d 882 (1988). In that case, as here, Plaintiff brought suit against the state in the Court of Claims and argued there that Plaintiff was a state employee. Leaman laid out what courts have called a quid pro quo approach to waiver whereby the state makes itself available as "an otherwise unavailable deep-pocket defendant" and in exchange plaintiffs "waive suit against the [state] employees in favor of suit against the employer." Id. at 953.

The Sixth Circuit has consistently applied Leaman to bar plaintiffs from bringing suit in federal court against a state employee after bringing suit against the state in the Court of Claims based on the same claim. See Thomson v. Harmony, 65 F.3d 1314, 1319 n. 4 (6th Cir.1995) (commenting that plaintiff "erroneously claims Leaman is inapplicable because his state court suit does not have the same defendants as his federal suit," implying that Leaman applies especially in the case of a defendant who appears in both lawsuits); White by Swafford v. Gerbitz, 860 F.2d 661, 664 (6th Cir.1988) (barring claims in federal court under a "nearly identical waiver statute" as in Leaman where the "plaintiff waived his federal cause of action [against state employees] when he subsequently filed a similar claim [against the state] before the Tennessee Claims Commission").

The waiver bars subsequent suit against persons in the abstract who could be categorized as state employees under the law. However, the quid pro quo rationale applies with even more force when the individual sued in federal court as a non-state employee is the selfsame employee who Plaintiff attempted to characterize as a state employee in his suit in the Court of Claims against the state. Indeed, Plaintiff benefited from using Lavery's acts to underlie the...