Pusey v. City of Youngstown

• Citation: 11 F.3d 652
• Decision Date: 03 February 1994
• Docket Number: No. 92-4185,92-4185
• Parties: Ethel L. PUSEY, Plaintiff-Appellant, v. CITY OF YOUNGSTOWN; Maureen Cronin, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 652

11 F.3d 652

Ethel L. PUSEY, Plaintiff-Appellant, v. CITY OF YOUNGSTOWN; Maureen Cronin, Defendants-Appellees.

No. 92-4185.

United States Court of Appeals, Sixth Circuit.

Argued Nov. 15, 1993.

Decided Dec. 15, 1993.

Rehearing and Suggestion for Rehearing En Banc Denied Feb. 3, 1994.

Percy Squire (briefed), Drew H. Campbell (argued), Bricker & Eckler, Columbus, OH, for plaintiff-appellant.

William Scott Fowler, Comstock, Springer & Wilson, Youngstown, OH, Cheryl L. Waite (argued and briefed), Edwin Romero, Maureen A. Cronin, Youngstown, OH, for defendants-appellees.

Before: KENNEDY, MILBURN, and GUY, Circuit Judges.

KENNEDY, Circuit Judge.

Plaintiff Ethel L. Pusey appeals the District Court's summary judgment dismissing plaintiff's claims in this 42 U.S.C. Sec. 1983 action against an assistant prosecutor in her personal and official capacities, and against the City of Youngstown for her alleged failure to comply with Ohio's victim impact law. For the reasons stated below, we affirm.

I.

Plaintiff filed an action against defendant Maureen Cronin, a City of Youngstown prosecutor, and the City of Youngstown, alleging that the defendants deprived her of her First Amendment right to free speech and her constitutional right to access to the courts. Plaintiff's claims arise out of Cronin's handling of the prosecution of one Eric Bator for the death of plaintiff's son, Derrell Pusey. Bator was initially charged with involuntary manslaughter.

Ohio Rev.Code Sec. 2937.081 requires the prosecutor assigned to certain charged crimes, including involuntary manslaughter, to provide the victim, or the victim's next of kin, with notice of the date, time and place of the trial pertaining to the particular offense or if the prosecution is resolved without trial, the date, time and place at which a guilty plea will be entered. ¹

On September 27, 1991, at a status conference on the case, Cronin entered a nolle prosequi to the charge under Ohio Rev.Code Sec. 2903.04 (involuntary manslaughter) and charged Bator under section 2903.05 (negligent homicide). Bator pleaded no contest to the reduced charge and the plea was accepted by the municipal court. The court scheduled sentencing for December 13, 1991. Plaintiff was not present at the September 27, 1991, hearing.

Plaintiff and her counsel claim Cronin deprived plaintiff of her constitutional rights by failing to notify her that the charge would be reduced at the September 27, 1991, hearing. Cronin, in her affidavit in support of her motion for summary judgment, states that Cronin met with plaintiff on September 25, 1991, and advised plaintiff that there would be a status conference with the judge on September 27, 1991, at which time the charges might be reduced. ² Her affidavit also states that she orally advised plaintiff's attorney of the status conference.

Ohio Rev.Code Sec. 2937.081 does not require a prosecutor to provide notice when the crime charged is negligent homicide. Cronin nonetheless notified plaintiff that Bator's sentencing hearing on the negligent homicide charge was set for December 13, 1991. Plaintiff attended and spoke at this hearing but the municipal court refused to allow her attorney to speak for her or to allow her to read a motion to vacate Bator's no contest plea to the reduced charge. ³ Plaintiff argues that Cronin had a duty as an officer of the court to inform the trial judge that the judge's actions were in violation of plaintiff's statutory and constitutional rights.

As a result of the charge reduction and sentencing hearing, plaintiff filed a 42 U.S.C. Sec. 1983 claim against Cronin and the City. Plaintiff alleged that Cronin's failure to notify her that the charges might be reduced, her failure to inform the judge of his obligations to crime victims at the reduction hearing, and Cronin's failure to advise the judge at sentencing that plaintiff had the right to counsel in connection with her exercise of rights under the Ohio victim impact laws, deprived her of her First Amendment right to free speech and denied her access to the courts. Defendants moved for summary judgment on all claims which the District Court granted. This timely appeal followed.

II.

This Court reviews a District Court's grant of summary judgment de novo, "making all reasonable inferences in favor of the nonmoving party to determine if a genuine issue of material fact" exists. EEOC v. University of Detroit, 904 F.2d 331, 334 (6th Cir.1990). Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to summary judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Viewing the evidence in the light most favorable to the nonmoving party, this Court must determine whether "the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986).

III.

As an initial matter, we note that plaintiff cannot complain about Cronin's actions with regard to the sentencing hearing. At that time, Bator had pled guilty to negligent homicide. Ohio Revised Code Sec. 2937.081(B) does not require that the prosecutor give notice to the victim or the victim's family when the charge involved is negligent homicide. Thus, any claim that her rights were violated with regard to the sentencing hearing is without merit.

Additionally, plaintiff alleges that the prosecutor committed a constitutional tort by failing to advise the judge at the sentencing hearing that plaintiff was entitled to assistance of counsel. There is absolutely no basis in law for plaintiff to claim that the prosecutor has deprived her of her constitutional rights because of a failure on the part of a prosecutor to correct the trial judge. Plaintiff does not point to any constitutional or statutory duty of prosecutors to tell the judge before whom they appear that the judge is wrong in his or her ruling.

Finally, plaintiff claims that the prosecutor violated plaintiff's constitutional rights by failing to inform the judge of his obligations to crime victims at the charge reduction hearing. Again, there is no constitutional or other duty on a prosecutor to correct the trial judge.

IV.

We turn then to plaintiff's claim that Cronin violated plaintiff's constitutional rights by failing to tell her that the charge might be reduced at the September 27, 1991 hearing. Under 42 U.S.C. Sec. 1983, plaintiff must establish that Cronin deprived plaintiff of her federal statutory or constitutional rights under color of state law. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923-24, 64 L.Ed.2d 572 (1980). The parties do not dispute that Cronin acted under color of state law. The only question is whether plaintiff was deprived of a federal right. Plaintiff argues Cronin has deprived her of her constitutional substantive due process rights and her procedural due process rights. These alleged rights include her liberty interest in free access to the courts and her First Amendment right to freedom of expression.

A. Procedural Due Process

"We examine procedural due process questions in two steps: the first asks whether there exists a liberty or property interest which has been interfered with by the State, the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient." Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 1908, 104 L.Ed.2d 506 (1989) (citations omitted). Liberty interests derive from both the Due Process Clause itself and the laws of the states. Id. Plaintiff clearly rests the establishment of her liberty interests on Ohio law. Initially, we must determine whether the Ohio crime victim's statute establishes a federally enforceable procedural right. To determine if state law establishes a protected liberty interest we must closely examine the state's statutes and regulations. To establish a liberty interest, the state law must use " 'explicitly mandatory language,' in connection with the establishment of 'specified substantive predicates' to limit discretion" of those to whom the statutory duty applies. Id. at 463, 109 S.Ct. at 1910. "[T]he most common manner in which a State creates a liberty interest is by establishing 'substantive predicates' to govern official decisionmaking, and, further, by mandating the outcome to be reached upon a finding that the relevant criteria have been met." Id. at 462, 109 S.Ct. at 1909 (emphasis added).

Ohio Rev. Code Sec. 2937.081 requires the prosecutor assigned to certain charged crimes, including involuntary manslaughter, to provide the victim, or the victim's next of kin, with notice of the date, time and place of the trial pertaining to the particular offense or if the prosecution is resolved without trial, the date, time and place at which a guilty plea will be entered. This statute extends procedural rights, notice, to crime victims but fails "to protect a substantive interest to which the individual has a legitimate claim of entitlement." Olim v. Wakinekona, 461 U.S. 238, 250, 103 S.Ct. 1741, 1748, 75 L.Ed.2d 813 (1983). "[A]n expectation of receiving process is not, without more, a liberty interest protected by the Due Process Clause." Id. at 250, n. 12, 103 S.Ct. at 1748 n. 12. The Ohio victim impact law does not create a liberty interest here because it only provides that the victim has the right to be notified. The statute does not specify how the victim's statement must affect the hearing nor does it require a particular outcome based on what the victim has said. See also Dix v. County of Shasta, 963 F.2d 1296, 1300 (9th Cir.1992). Thus, plaintiff has failed to establish that Ohio Rev. Code Sec. 2937.081 creates a constitutionally protected liberty interest.

B. Substantive Due...