Thomson v. Harmony
| Decision Date | 01 November 1995 |
| Docket Number | No. 93-4089,93-4089 |
| Citation | 65 F.3d 1314 |
| Parties | 103 Ed. Law Rep. 599 Paul E. THOMSON, M.D., Plaintiff-Appellant, v. Judith A.K. HARMONY, Andrew T. Filak, Jr., M.D., Evelyn V. Hess, M.D., Gene Conway, M.D., John Hutton, M.D., Joseph Broderick, M.D., Kathleen Robbins, and Donald Ebersold, M.D., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Ivan L. Tamarkin (argued and briefed), Katz, Greenberger & Norton, Cincinnati, OH, for plaintiff-appellant.
Mark J. Wasserman (argued and briefed), Richard S. Barnett, Beckman, Weil, Shepardson & Faller, Cincinnati, OH, for defendants-appellees.
Before: MERRITT, Chief Judge; and KEITH and BOGGS, Circuit Judges.
BOGGS, J., delivered the opinion of the court, in which KEITH, J., joined. MERRITT, C.J. (pp. 1321-22), delivered a separate dissenting opinion.
Plaintiff Paul Thomson appeals from the district court's dismissal of his suit pursuant to Leaman v. Ohio Dept. of Mental Retardation and 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). For the reasons below, we affirm in part and reverse in part the decision of the district court.
In July 1989, Thomson began a clinical fellowship in the Division of Immunology at the University of Cincinnati College of Medicine, where all of the defendants are employed in various capacities. Thomson took the position at the hospital in order to pursue a career in academic medicine, and he conducted research in rheumatology in Dr. Harmony's laboratory. Thomson and Dr. Harmony had a falling out, which escalated to the point that Thomson was ultimately expelled from the lab, jeopardizing his application for a National Institutes of Health ("NIH") research fellowship and damaging his career prospects. Thomson alleges he was denied the procedural safeguards and hearings guaranteed in the Hospital's policy manual, and that several of the defendants drove him out of his position at another hospital.
On December 2, 1991, Thomson sued the eight defendants under 42 U.S.C. Sec. 1983 in federal court. He asserted that the defendants had deprived him of property and liberty interests without due process of law, and he also raised several state law causes of action. The defendants answered and moved on February 14, 1992, for partial dismissal and/or partial judgment on the pleadings.
In an order dated June 8, 1992, the district court dismissed Thomson's state law claims against the defendants in their official capacities, holding that those claims were barred by the Eleventh Amendment. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). Thomson's state law claims against the defendants in their individual capacities were also dismissed, because Ohio gives state employees immunity unless the Court of Claims finds they fall under one of four statutory exceptions. Ohio Rev.Code Sec. 9.86 (Baldwin 1994). However, the district court permitted Thomson's Sec. 1983 claims for prospective injunctive relief against the state to proceed, finding that his allegations fit within the exception to Eleventh Amendment immunity established in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).
With the district court's permission, Thomson filed an amended complaint on May 17, 1993, which added allegations that the defendants, in their official and individual capacities, violated his First Amendment rights by their actions in response to statements he made to Dr. Harmony and by continuing to hinder his employment. Thomson sought monetary relief (compensatory damages, attorney's fees and punitive damages) against the defendants in their individual and personal capacities, as well as prospective relief 1 from them in their official capacities. The defendants filed an answer to the amended complaint.
On June 3, 1993, Thomson filed an action in the Ohio Court of Claims. This action did not allege violations of the First Amendment or of Sec. 1983, but raised only the state law claims (breach of contract, defamation, promissory estoppel, interference with advantageous contractual relationship, and breach of promise) that the district court had previously dismissed in its June 8, 1992, ruling. Thus, Thomson sued, in their official capacities, seven of the same eight defendants 2 from his federal suit, seeking $500,000 in damages, attorney's fees and court costs.
In a "pre-screening entry" dated June 4, 1993, the Court of Claims struck the demand for attorney's fees because the court was not empowered to award that relief, and substituted the University of Cincinnati College of Medicine as defendant because Thomson amended his complaint in the Court of Claims on June 8, 1993, suing the defendants as individuals "because [their] conduct was outside the scope of [their] employment or official responsibilities and in bad faith."
On June 30, 1993, defendants moved for dismissal of Thomson's claims in federal court based on this circuit's holding in Leaman, arguing that the causes of action in Thomson's suit in the Court of Claims and in federal district court were "based on the same act or omission." The district court agreed, and on September 14, 1993, it granted the motion, dismissing his remaining causes of action. Thomson timely appeals.
A district court's conclusions of law are subject to de novo review on appeal. United States v. Braggs, 23 F.3d 1047, 1049 (6th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 274, 130 L.Ed.2d 191 (1994); Whitney v. Brown, 882 F.2d 1068, 1071 (6th Cir.1989). An appellate court must review the evidence "in the light most likely to support the district court's decision." Braggs, 23 F.3d at 1049, citing United States v. Gomez, 846 F.2d 557, 560 (9th Cir.1988).
In Leaman v. Ohio Dept. of Mental Retardation and 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), this court interpreted a provision of the Ohio Court of Claims Act as requiring a plaintiff who files suit against state officials in the Court of Claims to waive his federal, as well as state, causes of action. The pertinent provision reads:
[F]iling a civil action in the court of claims results in a complete waiver of any cause of action, based on the same act or omission, which the filing party has against any state officer or employee.
Ohio Rev.Code Ann. Sec. 2743.02(A)(1) (Baldwin 1994) (emphasis added). The Leaman court found that the word "any" was unambiguous, and "the Ohio legislature clearly provided for waiver of federal causes of action." 825 F.2d at 952.
Ordinarily, Ohio state employees are entitled to immunity against state law claims for actions taken in their official capacities:
[N]o officer or employee shall be liable in any civil action that arises under the law of this state for damages or injury caused in the performance of his duties, unless ... [his] actions were manifestly outside the scope of his employment or official duties, or unless [he] acted with malicious purpose, in bad faith, or in a wanton and reckless manner. 3
Ohio Rev.Code Ann. Sec. 2743.02(A)(1) (Baldwin 1994).
Thus, our circuit interpreted the Court of Claims Act as establishing a quid pro quo, in which the state consents to be sued in exchange for a plaintiff's waiver of claims against the state's employees. Such a bargain did not impose an "unconstitutional condition" because until Ohio abandoned its sovereign immunity in the statute, plaintiffs had no cause of action at all:
The quid pro quo received by Ms. Leaman was not illusory, and the bargain she accepted was not unfair.... Ohio was under no constitutional duty to let itself be sued at all, and it was not unreasonable for the state to tell prospective plaintiffs ... "we will agree to let you sue the sovereign if you will agree to surrender your claims against the sovereign's servants." When one considers the depth of the sovereign's pockets in comparison to the depth of the servants', and when one remembers that Ms. Leaman was not required to give up her right to seek reinstatement through an injunction ... it is hard for us to see how the state could possibly be ... guilty of overreaching.
Id. at 954-55. The court further noted:
The price seems small enough when one recalls that a finding of malice by the Court of Claims would have enabled Ms. Leaman to proceed with her punitive damages claims against the individuals--and absent malice, the claims had no merit anyway.
The court also concluded that Leaman's waiver was voluntary because she was represented by competent counsel who "must be presumed to have known what the Court of Claims Act said." Id. at 956. Unlike a waiver in a criminal case, "it was not incumbent upon the court to make sure that her lawyer had adequately explained the effect of her action." Ibid.
Leaman has been followed in cases involving Ohio's Court of Claims Act, Haynes v. Marshall, 887 F.2d 700 (6th Cir.1989), and has been applied to similar statutes in other states. White v. Gerbitz, 860 F.2d 661 (6th Cir.1988) (Tennessee), cert. denied, 489 U.S. 1028, 109 S.Ct. 1160, 103 L.Ed.2d 219 (1989). Where Leaman has not been followed, it has been on the basis of factual distinctions rather than any disagreement with the principles in the case. See Carrelli v. Ginsburg, 956 F.2d 598, 603 n. 9 (6th Cir.1992); Majer v. Metropolitan Trans. Auth., 1992 WL 110995 (S.D.N.Y.1992).
The Ohio Supreme Court has held that a claim under Sec. 1983 may be brought directly in the Court of Common Pleas, and thus is not subject to Ohio Rev.Code Sec. 2743.02(F), which requires a preliminary determination by the Court...
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