Estate of Isaiah Andrews v. City of Cleveland, Ohio

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 24a0176p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

ESTATE OF ISAIAH ANDREWS,

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Plaintiff-Appellant, │

> No. 23-3387

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v. │

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CITY OF CLEVELAND, OHIO; ESTATE OF WILLIAM │

HUBBARD; ESTATE OF ERNEST ROWELL, │

Defendants-Appellees. │

┘

Appeal from the United States District Court for the Northern District of Ohio at Cleveland.

No. 1:22-cv-00250—James S. Gwin, District Judge.

Argued: May 28, 2024

Decided and Filed: August 13, 2024

Before: SUTTON, Chief Judge; CLAY and BUSH, Circuit Judges.

_________________

COUNSEL

ARGUED: Elizabeth Bonham, FRIEDMAN, GILBERT + GERHARDSTEIN, Cleveland,

Ohio, for Appellant. William M. Menzalora, CITY OF CLEVELAND, Cleveland, Ohio, for

Appellee City of Cleveland. John D. Latchney, HANNA, CAMPBELL & POWELL, LLP,

Akron, Ohio, for Appellees Estate of Ernest Rowell and Estate of William Hubbard.

ON BRIEF: Elizabeth Bonham, Sarah Gelsomino, FRIEDMAN, GILBERT +

GERHARDSTEIN, Cleveland, Ohio, Jacqueline Greene, M. Caroline Hyatt, FRIEDMAN,

GILBERT + GERHARDSTEIN, Cincinnati, Ohio, for Appellant. William M. Menzalora, Elena

N. Boop, Gilbert E. Blomgren, Matthew R. Aumann, Michael A. Arnold, CITY OF

CLEVELAND, Cleveland, Ohio, for Appellee City of Cleveland. John D. Latchney, Kenneth A.

Calderone, HANNA, CAMPBELL & POWELL, LLP, Akron, Ohio, for Appellees Estate of

Ernest Rowell and Estate of William Hubbard.

SUTTON, C.J., delivered the opinion of the court in which BUSH, J., joined. CLAY, J.

(pp. 14–21), delivered a separate opinion concurring in part and dissenting in part.

No. 23-3387 Andrews v. City of Cleveland, et al. Page 2

_________________

OPINION

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SUTTON, Chief Judge. Isaiah Andrews spent nearly 46 years in prison for the alleged

1974 murder of his wife. After an Ohio court determined that the government failed to turn over

key exculpatory evidence, Ohio granted Andrews a new trial, and a new jury found him not

guilty. He filed a § 1983 suit against the City of Cleveland and some of the officers involved

with his case. The district court rejected his claims as a matter of law. It found that Andrews

had waited too long after his release to file this lawsuit against the deceased officers, and that he

failed to show that it was the police rather than the prosecutors who violated his rights. We

affirm on the first issue and reverse and remand on the second.

I.

Sometime between 7:00 am and 2:00 pm on September 18, 1974, someone fatally

stabbed Regina Andrews. Cleveland police found her body in a park wrapped in bed linens. The

scene offered some clues. A nearby newspaper showed a bloody palm print, and a blood-stained

pillowcase carried a tag from Howard Johnson’s Motor Lodge.

Officers went to the Howard Johnson’s motel. The desk clerk told police that bed linens

were missing from the room of Willie Watts. The next morning, police arrested Watts for

Regina’s murder. His custody did not last long. The police released Watts after he established

an alibi for the morning of September 18.

The police identified Regina’s husband, Isaiah Andrews, as another suspect. No physical

evidence linked him to the scene. But the State had recently released Andrews for a previous

murder, he admitted to arguing with Regina shortly before her death, and his polygraph results

and alibi did not add up. An Ohio grand jury indicted Andrews for murder, and a jury found him

guilty in 1975. He received a life sentence.

During the next 45 years, Andrews periodically pursued postconviction relief in state

court. In 2020, the State granted Andrews a new trial after finding that he never received

No. 23-3387 Andrews v. City of Cleveland, et al. Page 3

exculpatory evidence concerning Watts. In October 2021, the new jury found Andrews not

guilty.

On February 14, 2022, Andrews filed this § 1983 action against the lead detectives,

William Hubbard and Ernest Rowell, eight other officers, and the City of Cleveland. The lawsuit

alleged that the officers and the City violated Andrews’ Fourteenth Amendment right to due

process by withholding exculpatory evidence. Because Hubbard, Rowell, and some of the other

officers had died by the time of the lawsuit, the district court allowed Andrews to substitute the

common administrator of their estates as the defendant. When Andrews died later in 2022, the

court permitted his estate administrator to litigate the case.

The district court ruled as a matter of law for all of the defendants. It dismissed the

claims against the Hubbard and Rowell estates because Andrews had waited too long to bring his

claims against them. See Ohio Rev. Code § 2117.06. And it granted summary judgment in favor

of the City of Cleveland because its police, as opposed to the prosecutor, did not withhold

exculpatory evidence.

II.

Andrews’ estate argues that the district court erred in dismissing the § 1983 claim against

the Hubbard and Rowell estates on timeliness grounds. We review this legal argument with

fresh eyes. Sampson v. Garrett, 917 F.3d 880, 881 (6th Cir. 2019).

Federal civil rights laws play a key role in the balance between national and state

authority. Perhaps the most pivotal of these laws, 42 U.S.C. § 1983 creates a cause of action to

vindicate federal rights against state officials and governments. At the same time that federal

law creates this action, it leaves state law to fill in the gaps over how these actions work. See Bd.

of Regents of Univ. of State of N.Y. v. Tomanio, 446 U.S. 478, 483–84 (1980). When federal law

is “deficient” in explaining how an action works, state law governs the proceedings as long as it

“is not inconsistent with the Constitution and laws of the United States.” 42 U.S.C. § 1988(a).

In thinking about whether federal law incorporates state law with respect to a cause of

action, three questions come into play. Does a “suitable federal rule exist[]” or has Congress left

No. 23-3387 Andrews v. City of Cleveland, et al. Page 4

a gap for state law to fill? Wilson v. Garcia, 471 U.S. 261, 267 (1985) (quotation omitted). If a

gap exists, what is the “most analogous” state rule? Id. at 267–68. Is the state rule “inconsistent

with the Constitution and laws of the United States”? Id. at 267 (quotation omitted).

As to the first question, federal law does not tell us what to do when a plaintiff or a

defendant in a § 1983 action dies. “[O]ne specific area not covered by federal law is that relating

to the survival of civil rights actions under § 1983 upon the death of either the plaintiff or

defendant.” Robertson v. Wegmann, 436 U.S. 584, 589 (1978) (quotation omitted). States have

traditionally regulated the “type of claims that survive and the parties as to whom survivorship is

allowed.” Id.; see, e.g., United States v. Hoar, 26 F. Cas. 329 (Story, Circuit Justice, C.C.D.

Mass. 1821) (No. 15,373); In re Broderick’s Will, 88 U.S. 503, 517 (1874); cf. Sutton v. English,

246 U.S. 199, 205 (1918) (explaining that estate administration has traditionally been reserved to

the States).

As to the second question, we look to the forum State, Ohio, to determine how to

proceed. “All creditors having claims against an estate,” Ohio law says, must present their

claims “within six months after the death of the decedent.” Ohio Rev. Code § 2117.06(A), (B).

Otherwise, “[n]o payment shall be made on the claim and no action shall be maintained on the

claim.” Id. § 2117.06(C). Ohio grants an extension to creditors bringing “contingent claims”

against an estate administrator. Id. “If a claim is contingent at the time of a decedent’s death

and a cause of action subsequently accrues on the claim, it shall be presented to the executor or

administrator, in the same manner as other claims, before the expiration of six months after the

date of death of the decedent, or before the expiration of two months after the cause of action

accrues, whichever is later[.]” Id. § 2117.37. If a contingent claim ripens against an estate more

than six months after the decedent’s death, in other words, the creditor still has two months to

present his claim to the administrator. These provisions of Ohio law, all agree, form the relevant

state law backdrop and deal with the reality that officer Hubbard died in 2009 and officer Rowell

died in 2015.

As to the third question, these Ohio principles are not “inconsistent with the Constitution

and laws of the United States.” It is not inconsistent with federal policy for a State to say that a

cause of action abates when a party dies, or to forbid the substitution of the deceased with their

No. 23-3387 Andrews v. City of Cleveland, et al. Page 5

personal representative. Robertson, 436 U.S. at 590–92; see also Moor v. Alameda County, 411

U.S. 693, 702 n.14 (1973). Confirming the point, several federal statutes “take the same

approach” to survival and do not allow the substitution of a deceased party’s personal

representative. Robertson, 436 U.S. at 592 n.8.

The greater state power upheld in Robertson—to end a cause of action based on the

claimant’s death—includes the lesser power to require the timely presentation of claims before

proceeding against an estate administrator. As in Robertson, Ohio law leaves open the

possibility that claims might survive against parties other than the deceased’s personal

representatives—here to account for the deaths of Hubbard and Rowell in 2009 and 2015. See

Ohio Rev. Code § 2117.39. Ohio law does not cut off the ability of claimants in Andrews’ shoes

to bring a § 1983 suit. Indeed, it allowed claims to be filed upon accrual—in one instance twelve

years after the officer died and in the other instance six years after the officer died. What it does

do is require the prompt filing of the claims after they accrue—in this instance in 2021 when

Andrews was acquitted.

Put another way, once an estate has been wrapped up and a final distribution has been

made, Ohio law allows a creditor with a contingent claim to proceed directly “against the

distributees of the decedent’s estate” without presentation to them or to the estate administrators.

Id.; see also id. § 2117.41 (providing that heirs are liable for paying contingent claims of the

estate “in an amount not exceeding the value of the . . . property that the person received under

the will”); id. § 2117.42 (specifying how to proceed when there are multiple heirs). Nothing in

federal law requires states to permit plaintiffs to name estate administrators, instead of heirs, as

defendants. See Robertson, 436 U.S. at 591; cf. Fed. R. Civ. P. 17(b)(3) (“Capacity to sue or be

sued is determined . . . by the law of the state where the court is located . . . .”). This Ohio law is

not inconsistent with federal law.

Under Ohio law, Andrews may not maintain this § 1983 lawsuit against the administrator

of Hubbard and Rowell’s estates. Hubbard and Rowell died long before Andrews brought an

action against them. And Andrews did not present his claims to the estate administrator within

six months of Hubbard and Rowell’s deaths in 2009 and 2015, Ohio Rev. Code § 2117.06(B), or

within two months of when he was found not guilty (when the parties agree that his Brady claim

No. 23-3387 Andrews v. City of Cleveland, et al. Page 6

accrued, Appellant’s Br. 37, R.89 at 758), id. § 2117.37. Andrews therefore cannot proceed

against the estates’ administrator. See id. § 2117.06(C).

Andrews mounts several responses, one under Ohio law, a few under federal law.

Pointing to Ohio law, Andrews argues that he did not bring a “claim[] against an estate,”

id. § 2117.06, because the City would pay any judgment against Hubbard and Rowell. Under

Ohio law, it is true, a claim that has not been properly presented to the estate administrator may

nonetheless go forward so long as “no portion of any recovery on a claim . . . shall come from

the assets of an estate.” Id. § 2117.06(G); Meinberg v. Glaser, 237 N.E.2d 605, 609 (Ohio

1968). But that carve-out does not help him because Andrews raises a claim for monetary

damages against the estates, not just the City. And the possibility that the estates might seek

indemnification does not establish that “no portion of any recovery” would come from the

estates. Ohio promises to indemnify its employees under certain conditions, Ohio Rev. Code

§ 2744.07, but it clarifies that the “right of indemnification is personal to the employee,” Ayers v.

Cleveland, 156 N.E.3d 848, 292–93 (Ohio 2020). The indemnification statute “does not permit a

judgment creditor” (like Andrews) “to proceed directly against an indemnitor” (like Cleveland).

Id. at 293. Even if Andrews may wish to draw on Cleveland’s coffers, the only path to those

funds proceeds through an obligation of Hubbard and Rowell’s estates. See Ohio Rev. Code

§ 2744.07 (“[A] political subdivision shall indemnify and hold harmless an employee in the

amount of any judgment, other than a judgment for punitive or exemplary damages, that is

obtained against the employee . . . .” (emphasis added)).

What’s more, even if Andrews did obtain a judgment against Hubbard and Rowell, it’s

not clear that the City would indemnify them. Put to one side the argument that, under Ohio law,

a political subdivision must indemnify “the employee[s],” not necessarily their estates. Id.; see

id. § 2744.01 (“‘Employee’ means an officer, agent, employee, or servant . . . .”); Ayers, 156

N.E.3d at 292. The Ohio indemnification statute still covers only an employee’s “act[s] or

omission[s] in connection with a governmental or proprietary function,” Ohio Rev. Code

§ 2744.07(A)(1), if at the time of the “act[s] or omission[s]” the employee was acting “in good

faith” and within the scope of employment or official responsibilities, id. § 2744.07(A)(2).

Should a jury conclude that Hubbard and Rowell withheld the evidence from the prosecution and

No. 23-3387 Andrews v. City of Cleveland, et al. Page 7

that they did so in bad faith or outside the scope of employment, their estates would be liable to

Andrews but have no right of indemnification against the City. Because Andrews seeks a

remedy that might require the estates to pay the price, he must follow Ohio’s timelines for

making claims on an estate.

As to federal law, Andrews argues that Ohio’s estate administration deadlines violate

“the Constitution and laws of the United States” because they stand as an obstacle to prevailing

in a federal civil rights claim. 42 U.S.C. § 1988. In doing so, he specifically invokes Burnett v.

Grattan, 468 U.S. 42 (1984), and Felder v. Casey, 487 U.S. 131 (1988).

But a statute does not become “‘inconsistent’ with federal law merely because the statute

causes the plaintiff to lose the litigation.” Robertson, 436 U.S. at 593. And neither Burnett nor

Felder supports his theory.

Burnett did not involve inconsistency with federal law. It concerned whether the best

analog under state law was a Maryland six-month limitation on initiating administrative

employment discrimination proceedings. 468 U.S. at 45, 49–50. The Court held that the

Maryland administrative proceedings offered an inapt analogy to § 1983 proceedings. Id. at 55.

The better analogy, the Court later concluded, was a state statute of limitations for personal

injury claims. See Owens v. Okure, 488 U.S. 235, 240–41, 251 (1989). Burnett speaks to how to

pick between competing provisions of state law. It does not tell us whether state law violates

federal law.

Felder is afield in other ways. It concluded that § 1983 preempted Wisconsin from

requiring parties to provide prompt written notice of their claims before they could sue the state

government or its agents. 487 U.S. at 135–36. This provision, Felder reasoned, conflicted with

the “design and effect” of § 1983 because it served primarily to shield state subdivisions from

“large liability and defense costs.” Id. at 141, 143. The targeted harm Wisconsin sought to

deter, in short, was precisely what § 1983 sought to permit. Instead of a “neutral, uniformly

applicable state rule,” it “discriminate[d]” against “only those persons who wish to sue

governmental defendants” by requiring them and them alone “to provide notice.” Id. at 141,

144, 146.

No. 23-3387 Andrews v. City of Cleveland, et al. Page 8

In telling contrast, the relevant Ohio law applies to all lawsuits and serves to further the

efficient, timely, and fair administration of estates, something federal and state law have long

promoted. See In re Broderick’s Will, 88 U.S. at 509; In re Natherson’s Estate, 134 N.E.2d 852,

855 (Ohio Ct. App. 1956); The Ohio Sav. Ass’n v. Friedman, No. 40001, 1980 WL 354413, at *2

(Ohio Ct. App. Jan. 4, 1980). Ohio applies these estate administration provisions equally to all

creditors with contingent claims, regardless of whether the defendants are government

employees or private parties, and regardless of whether the cause of action sounds in civil rights

litigation, contract, tort, or something else. As with the survivorship statute in Robertson, no

official clued into Ohio estate administration law would “be influenced in his behavior by its

provisions.” 436 U.S. at 592. This “neutral, uniformly applicable state rule” satisfies § 1988,

Felder, and Robertson. See Felder, 487 U.S. at 144.

Nor is Robertson distinguishable. True, Robertson specifically concerned whether a

§ 1983 claim would abate following plaintiff’s death rather than a defendant’s. See 436 U.S. at

587. Its reasoning, however, explicitly deals with “the death of either the plaintiff or defendant.”

Id. at 589 (quotation omitted); see also id. (explaining that state survivorship statutes may “vary

widely” when it comes to “the parties as to whom survivorship is allowed,” but they all “modify”

the “common law rule[]” that “[a]n injured party’s personal claim was always extinguished upon

the death of either the injured party himself or the alleged wrongdoer” (quotation and alterations

omitted)). Nor is there any reason to think that the Ohio statute will necessarily extinguish

claims more often than the Louisiana statute. Just as Louisiana law allowed an action to survive

for a year “in favor of a spouse, children, parents, or siblings,” id. at 591–92; Shaw v. Garrison,

391 F. Supp. 1353, 1361 n.13 (E.D. La. 1975) (citing La. Civil Code art. 2315 (1971)), so Ohio

law also allows an action to survive against a deceased defendant’s estate for two months, Ohio

Rev. Code § 2117.37, and against his “heirs, next of kin, surviving spouse as next of kin,

devisees, and legatees” for six months, id. § 2117.41. “[F]ew persons are not survived by one of

the[] close relatives” named in the Louisiana statute, Robertson, 436 U.S. at 591–92, and even

fewer are not survived by any of the broad categories of people covered by the Ohio statute, see

Ohio Rev. Code § 2117.41.

No. 23-3387 Andrews v. City of Cleveland, et al. Page 9

Nor does Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969), change things.

Sullivan explained that, even though federal law does not specify that damages are available in a

§ 1982 claim, § 1988 permits “both federal and state rules on damages” to be “utilized,

whichever better serves the policies expressed in the federal statutes.” Id. at 240. This general

statement from Sullivan does not contradict Robertson’s clear holding that state survivorship

statutes are consistent with the policies of the civil rights statutes. For that reason, not

surprisingly, Andrews’ appellate briefs never invoke Sullivan.

The district court correctly held that Andrews could not proceed against Hubbard and

Rowell’s estate administrator.

III.

Andrews separately argues that the district court erred in summarily rejecting his claim

against the City of Cleveland. We give fresh review to this claim and draw all reasonable factual

inferences in favor of Andrews. See Peffer v. Stephens, 880 F.3d 256, 262 (6th Cir. 2018).

A criminal defendant suffers a due process violation when the prosecution fails to turn

over favorable evidence that would materially aid in his defense. See Brady, 373 U.S. at 87.

Police share this obligation. Just as prosecutors must make Brady disclosures to the defendant,

police bear “an equally important Brady-derived responsibility to turn over potentially

exculpatory evidence to the prosecutor’s office.” Moldowan v. City of Warren, 578 F.3d 351,

381 (6th Cir. 2009) (quotation omitted). Cities do not face vicarious liability for the acts of their

employees. See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978). But a

city will face liability under § 1983 if it implements an unconstitutional policy that causes a

Brady violation. Jackson v. City of Cleveland, 925 F.3d 793, 828 (6th Cir. 2019).

At stake is whether the police suppressed two exculpatory pieces of evidence and, if so,

whether they did so in connection with an unconstitutional policy of the City of Cleveland. The

two pieces of evidence are (1) notes about a bloody palm print and (2) a missing page from a

police report. Each one deserves a turn.

No. 23-3387 Andrews v. City of Cleveland, et al. Page 10

Handprint Notes. Recall that the police found a bloody palm print at the scene of the

crime. The Scientific Investigation Unit compared the palm print to Andrews’ print. In a

handwritten note, one of the prosecutors, Carmen Marino, wrote that “per SIU, partial print

completely NOT DEFENDANT’S PRINT.” R.97-1 at 269. He then scratched that note out and

wrote “PRINT NOT CLEAR ENOUGH TO COMPARE.” Id.

Marino’s notes do not show that the police suppressed exculpatory information from the

prosecutor. In an earlier postconviction action, Andrews said that he told his defense counsel

“prior to trial and during trial that the prosecutor had in his files information of a ‘bloody palm

print’ found at the scene of the crime which established that it was someone’s print other than

[Andrews’].” Id. at 245. Given this prior acknowledgement, Andrews cannot now say that the

prosecution never had the information in its files.

The notes do not help Andrews’ cause in any event. Marino knew the contents of his

own notes. Marino’s handwritten note that the palm prints did not match, without more,

therefore does not show that Marino never learned that the palm prints did not match. In the

absence of evidence that the police suppressed information from the prosecutor, Andrews’ Brady

claim necessarily fails. See Mack v. Bradshaw, 88 F.4th 1147, 1155 (6th Cir. 2023). In the

absence of suppressed evidence, it follows that the City of Cleveland did not deploy an

unconstitutional policy to create a Brady violation.

Andrews points to Marino’s notes as proof that the police withheld a written report on the

palm print. But we can only speculate about whether a written report ever existed. Marino

attested that he got his information over the phone, not in a written report. And while Andrews

argues that the Scientific Investigation Unit should have written such a report, Brady concerns

the failure to turn over evidence, not the failure to create it. See Hill v. Mitchell, 842 F.3d 910,

926 (6th Cir. 2016) (explaining that Brady requires a showing that favorable evidence existed

and was suppressed); Bell v. Bell, 512 F.3d 223, 234 (6th Cir. 2008) (stating that “not disclosing

something” that police “d[o] not have[] cannot be considered a Brady violation” (quotations

omitted)). So long as police turn over the substance of an investigation to the prosecution, a

Brady violation does not arise merely from failing to memorialize that information in a formal

report.

No. 23-3387 Andrews v. City of Cleveland, et al. Page 11

Police Report. On the same day that the police discovered Regina’s body, Rowell

prepared a four-page police report. On page three, he documented that, “[a]t the scene,” he and

Hubbard found a bloody pillowcase from the Howard Johnson’s Motor Lodge. R.109-1 at 23.

The same page added that he learned from the Howard Johnson’s desk clerk that, on the same

day as the murder, the bed linens from Watts’s motel room were missing. This page was

favorable to Andrews and material to his defense because it showed someone else may have

committed the murder. See Jackson, 925 F.3d at 814. Yet the parties dispute whether, as a

factual matter, the police turned over this page to the prosecutors.

Whether the police turned over page three of the police report is a material dispute of fact

that a jury must decide. Two members of the prosecution team, Ronald Adrine and Joseph

Gibson, attested that they were not aware of any physical evidence tying Watts to the murder.

And sometime before 2018, the Cuyahoga County Prosecutor’s Office digitally scanned its files

spanning from the 1975 pre-trial investigation to the 1995 denial of state postconviction relief to

Andrews’ 2009 parole proceedings. No legible copy of page three of the police report appears in

any of these files. Nor is there any other mention of the tie between the Howard Johnson’s motel

pillowcase and Watts. A reasonable jury could conclude that police withheld the pillowcase

evidence against Watts.

The City pushes back, pointing out that a copy of page three appears in the 2018 scan of

the prosecution’s files. True enough. But the page is incomprehensible, whether due to lack of

ink, water damage, poor scan quality, or something else. More, this illegible copy of the police

report appears in the prosecutor’s files sandwiched between a 1976 state court decision denying

Andrews’ direct appeal and a 1978 motion concerning post-conviction relief. A reasonable

juror, viewing this evidence, could conclude that police gave the prosecutors an illegible copy of

page three or turned it over sometime after the trial ended.

The City also cites another copy of the report found elsewhere in the prosecutor’s digital

scan. This one is legible, and it contains handwritten notes that resemble Marino’s handwriting,

supporting the inference that trial counsel had it. But this annotated copy of the report skips

from page two to page four. A reasonable jury, again, could conclude that, when police turned

over the report to the prosecutors, they left out page three.

No. 23-3387 Andrews v. City of Cleveland, et al. Page 12

The City maintains that the County Coroner’s office had its own copy of this report. But

this copy, too, does little. The police have a Brady obligation to provide information to the

prosecutors, not just to the coroner, and there is no evidence that the coroner’s files ever made it

into the hands of the prosecutors. See Moldowan, 578 F.3d at 378.

The City insists that the prosecutors could have pieced together some of the story from

other evidence in the record. They noted, for example, that the record contained evidence that

police found a bloody pillowcase near the scene of the crime, that police suspected and arrested

Watts, and that he stayed at the Howard Johnson’s. We agree to a point. One page of the record,

annotated with Marino’s handwriting, discloses that police arrested Watts. But those facts do not

tell the full story. The information on page three—that the pillowcase came from the Howard

Johnson’s Motor Lodge at the same time that all of Watts’s bed linens went missing—provided

the crucial link between the crime scene and the alternative suspect. The City has not shown that

this link appeared anywhere else in prosecution’s files at trial.

A reasonable jury, to be sure, could still take the opposite view on whether the police

withheld evidence. A jury might discredit the prosecutors’ testimony that they were unaware of

physical evidence tying Watts to the murder. It likewise might find that police gave one or more

legible copies of page three to the prosecutors, and any such copies merely got lost or damaged

in the years before the prosecutors digitized their files. But those are quintessential factual

questions for a jury to decide.

That leaves the question whether a City policy created the violation. Because a

reasonable jury could conclude that the police withheld information from the prosecution in

violation of Brady, we must consider whether an unconstitutional policy of the City of Cleveland

caused the violation. Jackson, 925 F.3d at 828. The parties briefed that issue at length below

and renew their arguments here. But the district court did not reach the issue, and ours is a court

of “sequels, not premiers.” Harrison v. Montgomery County, 997 F.3d 643, 652 (6th Cir. 2021).

We will entrust the issue to the district court’s good judgment in the first instance. See id.

For these reasons, we reverse the district court’s grant of summary judgment to the City

of Cleveland and remand for the district court to consider whether a City policy caused the Brady

No. 23-3387 Andrews v. City of Cleveland, et al. Page 13

violation. We otherwise affirm the district court’s dismissal of Andrews’ claims against

Hubbard and Rowell.

No. 23-3387 Andrews v. City of Cleveland, et al. Page 14

______________________________

CONCURRENCE / DISSENT

______________________________

CLAY, Circuit Judge, concurring in part and dissenting in part. Isaiah Andrews spent

over 45 years behind bars for the brutal murder of his wife. A later jury—untainted by the Brady

violations of his first prosecution—found him not guilty, and the state of Ohio has formally

exonerated him. I agree in part with today’s holding because it allows Andrews’ claim against

the City of Cleveland to go forward. But because Andrews should also be able to seek relief

from the estates of the individual officers who may have violated his constitutional rights, I

respectfully dissent from Part II of the majority opinion.

Title 42 U.S.C. § 1983 safeguards individuals’ constitutional rights and, when those

rights are abridged by state action, provides those individuals with some form of relief. When

adjudicating § 1983 claims, courts sometimes must borrow from the law of the state where the

dispute arises. See, e.g., Browning v. Pendleton, 869 F.2d 989, 992 (6th Cir. 1989) (applying

Ohio’s two year statute of limitations for bodily injury claims to a § 1983 civil rights action).

Courts may only do so, however, where federal law is “deficient . . . to furnish suitable remedies

and punish offenses against law” and where application of state law “is not inconsistent with the

Constitution and laws of the United States[.]” 42 U.S.C. § 1988. In making this determination,

“courts must look not only at particular federal statutes and constitutional provisions, but also at

the policies expressed in them.” Robertson v. Wegmann, 436 U.S. 584, 590 (1978) (citing

Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 240 (1969)). “Of particular importance is

whether application of state law ‘would be inconsistent with the federal policy underlying the

cause of action under consideration.’” Id. (quoting Johnson v. Railway Express Agency, Inc.,

421 U.S. 454, 465 (1975)).

The majority affirms the district court’s dismissal of Andrews’ claims against the

Defendant Estates—the estates of the individual Defendants who have passed away in the

decades since Andrews was incarcerated—because it claims that Ohio law bars Andrews’ suit.

Ohio requires that “all claims shall be presented within six months after the death of the

decedent,” and that “a claim that is not presented within six months after the death of the

No. 23-3387 Andrews v. City of Cleveland, et al. Page 15

decedent shall be forever barred as to all parties [and] [n]o payment shall be made on the claim

and no action shall be maintained on the claim.” Ohio Rev. Code § 2117.06(B)–(C). The

majority holds that this provision of state law forecloses Andrews’ claims against Defendant

Estates because Andrews brought his claim outside of the two-month window prescribed by the

statute (while otherwise complying with the relevant statute of limitations for § 1983 claims).

This represents a dramatic reduction in the amount of time plaintiffs typically have to understand

a violation has occurred, seek counsel, and file the necessary legal documents. If permitted to

stand, today’s holding will surely hinder a plaintiff’s ability to vindicate his constitutional rights,

in direct contravention of federal law.

In fact, both Supreme Court precedent and federal statutes command a different result.

When deciding the application of state law to § 1983 claims, Sullivan instructs courts to apply

whichever source of law “better serves the policies expressed in the federal statutes.” 396 U.S. at

240. It is difficult if not impossible to see how the Ohio estate law better serves the policies

behind § 1983—to vindicate constitutional or civil rights claims—when, in Andrews’ case, it is

being applied to foreclose such a claim. And § 1988 requires that federal law be “deficient” in

“furnish[ing] suitable remedies” in order for state law to apply. 42 U.S.C. § 1988. But there is

no indication that federal law in this case is so deficient that the Ohio estate law should apply.

To the contrary, the Ohio estate law would prevent any suitable remedies that federal law

otherwise provides—that which would come from the successful pursuit of a § 1983 claim.

The majority rests its contrary conclusion primarily on Robertson, in which the Supreme

Court held that a Louisiana survivorship statute, which permitted only a plaintiff’s spouse,

children, parents, or siblings to maintain an action after the plaintiff’s death, barred the action in

that case. 436 U.S. at 587. Because “the greater state power upheld in Robertson”—to

categorically bar an estate’s ability to pursue an otherwise timely § 1983 claim—includes “the

lesser power to require the timely presentation of claims before proceeding against an estate

administrator,” the Ohio law can bar Andrews’ claim. Maj. Op. at 5. Admittedly, Robertson

found that the Louisiana statute could apply because it did not conflict with federal law. 436

U.S. at 590–92. But Robertson’s holding was expressly a “a narrow one, limited to situations in

which no claim is made that state law generally is inhospitable to survival of § 1983 actions[.]”

No. 23-3387 Andrews v. City of Cleveland, et al. Page 16

Id. at 594. Thus rather than extend Robertson to cases that arguably will affect more § 1983

actions than the facts of that case, the actual holding of Robertson should have been left

undisturbed.

There is good reason not to apply Robertson to this case. First, the Court in Robertson

believed it was addressing a Louisiana statute that would apply in relatively few cases, relying on

the assumptions that “most Louisiana actions survive the plaintiff’s death” and “surely few

persons are not survived by one of these [the statutorily-specified] close relatives.” Id. at 591–

92. While those statements may be true, the same cannot be said for § 1983 actions like

Andrews’. In wrongful conviction cases that later give rise to § 1983 suits, the plaintiffs may be

incarcerated for decades—Andrews himself was incarcerated for nearly 46 years—making it

highly likely that the relevant defendants may have died by the time the

constitutional claim accrues. See Milestone: Exonerated Defendants Spent 20,000 Years in

Prison, Nat’l Registry of Exonerations, (Aug. 30, 2018), https://www.law.umich.edu/

special/exoneration/Documents/NRE.20000.Years.Report.pdf (collecting cases of exonerees who

spent more than 30 years in prison before being ruled innocent). In other words, Robertson

depended on the assumption that it was applying a rule that would operate in a rare number of

cases. But the extension of that rule here has few guardrails to prevent it from extinguishing

most if not all § 1983 actions that arise from long ago wrongful convictions in Ohio.

Second, the state law in Robertson constrained who could bring an action on behalf of a

deceased plaintiff, not who could be sued in lieu of a deceased defendant. That distinction

matters. The Robertson Court thought that the Louisiana law did not endanger the policy behind

§ 1983 because plaintiffs’ estates—particularly those whose executors are unrelated to the

harmed plaintiff—did not have a categorical right to recovery. Id. at 592 (“The goal of

compensating those injured by a deprivation of rights provides no basis for requiring

compensation of one who is merely suing as the executor of the deceased’s estate.”). But the

goals of compensating those injured by a deprivation of rights surely provides a basis for

requiring compensation from the estates of those who allegedly committed the constitutional

violation.

No. 23-3387 Andrews v. City of Cleveland, et al. Page 17

Finally, it is worth noting that Robertson itself was likely wrongly decided, given

Supreme Court precedent, as well as federal statutes like 42 U.S.C. § 1988, that encourages

enforcement of § 1983 rather than allowing state law to poke holes in it. See, e.g., Sullivan, 396

U.S. at 240; Felder v. Casey, 487 U.S. 131, 151 (1988). But given the substantial differences

between this case and Robertson, this Court need not, and cannot, confront that question today.

We could, and should, have found that the sufficient factual distinctions between this case and

Robertson, not to mention the statutory and Supreme Court authority that precedes Robertson

and has not been overruled, were sufficient to make Robertson inapplicable to this case—so that

Andrews’ claims could survive against all who caused him harm.

The majority’s other arguments are unavailing. First the majority claims that “Ohio law

does not cut off the ability of claimants in Andrews’s shoes to bring a § 1983 suit” because it

permits individuals like Andrews to bring their claims within two months of the claim’s accrual.

Maj. Op. 5. But this is still a drastic reduction in the amount of time civil rights claimants are

typically permitted to bring their claims. As the Supreme Court has previously held, “[c]ivil

rights victims often do not appreciate the constitutional nature of their injuries, and thus will fail

to file a notice of injury or claim within the requisite time period[.]” Felder, 487 U.S. at 152. In

that case, the Court held that a Wisconsin notice-of-claim statute that applied when plaintiffs

sued government defendants was inapplicable as it conflicted with the strong federal interest in

remedying constitutional violations. And the Court also noted that a time period of “a mere four

months” was insufficient to properly safeguard the vindication of civil rights claims. Id. Surely

a period that is half that—the two months that the Ohio estate statute imposes on plaintiffs like

Andrews—is doubly alarming, and at odds with the objectives and policy goals behind § 1983.

But the majority argues that any reliance on Felder was misplaced. Maj. Op. at 7–8. In

the majority’s view, that the state law at issue in this case applies to any claim against an estate,

whether it is brought under § 1983 or a different cause of action, distinguishes it from the state

law in Felder, which imposed heightened restrictions only on claims against government entities

(which includes most if not all § 1983 suits). In other words, because the Ohio estate law applies

to claims other than those asserting violations of civil rights, the fact that it may foreclose civil

No. 23-3387 Andrews v. City of Cleveland, et al. Page 18

rights claims is of no moment. By the majority’s misguided logic, a state can impose any barrier

to recovery for § 1983 claims so long as it imposes such a barrier on all claims.

But Supreme Court precedent does not allow this; it requires the application of federal

law where it “better serves the policies expressed in the federal statutes.” Sullivan, 396 U.S. at

240. And the federal statutes in this case were enacted to remedy “the deprivation of any rights,

privileges, or immunities secured by the Constitution,” 42 U.S.C. § 1983, and “for the protection

of all persons in the United States in their civil rights, and for their vindication.” 42 U.S.C.

§ 1988. Thus, both Supreme Court precedent and the text of the relevant federal statutes

emphasize the importance of vindicating civil rights over the application of state law. A society

that values its courts’ ability to remedy civil rights violations would not tolerate the majority’s

endorsement of a regime where state law routinely prevents such a goal.

Finally, the majority favorably notes the interest that states have in the orderly disposition

of estates.1 While states do have an interest in the efficient settlement of its citizens’ estates, this

interest is outweighed by the federal government’s strong interest in the vindication of its

citizens’ civil rights. See Mitchum v. Foster, 407 U.S. 225, 239 (1972) (“Section 1983 opened

the federal courts to private citizens, offering a uniquely federal remedy against incursions under

the claimed authority of state law upon rights secured by the Constitution and laws of the

Nation.”); Burnett v. Grattan, 468 U.S. 42, 55 (1984) (noting that a six month limitations period

is “manifestly inconsistent with the central objective of the Reconstruction–Era civil rights

statutes, which is to ensure that individuals whose federal constitutional or statutory rights are

abridged may recover damages or secure injunctive relief”); Wilson v. Garcia, 471 U.S. 261, 277

1

Andrews also argues that his claims fit within an exception to the Ohio estate statute because his suit does

not seek recovery from the assets of the estates since the City of Cleveland will indemnify the estates. The majority

notes that Ayers v. Cleveland, 156 N.E.3d 848, 292–93 (Ohio 2020) restricts a third-party creditor from proceeding

directly against an indemnitor, and observes that it is unsettled whether the Ohio law that requires localities to

indemnify their employees necessarily means localities must also indemnify those employees’ estates. Maj Op. at

6–7. I do not understand the majority to reach a categorical holding as to whether and when municipalities might be

obligated to indemnify their employees’ estates, particularly when other courts when confronted with similar issues

have not found as much. See Graham v. Sauk Prairie Police Comm’n, 915 F.2d 1085, 1089 (7th Cir. 1990) (holding

that a state indemnity statute required the locality to indemnify the officer’s estate). Rather, the majority merely

notes that this is one of several murky areas of law—all of which must and have yet to be resolved in Andrews’

favor—before he can qualify for this exception of the Ohio estate statute. Because I would not apply the Ohio estate

statute at all, I would have left these questions untouched and for Ohio courts to decide.

No. 23-3387 Andrews v. City of Cleveland, et al. Page 19

(1985) (“By providing a remedy for the violation of constitutional rights, Congress hoped to

restore peace and justice to the region through the subtle power of civil enforcement.”);

Robertson, 436 U.S. at 601 (1978) (Blackmun, J., dissenting) (“We are not concerned with the

reasonableness of the Louisiana survivorship statute in allocating tort recoveries. We are

concerned with its application in the face of a claim of civil rights guaranteed the decedent by

federal law.”).

A state probate rule preventing civil rights plaintiffs like Andrews, whose claim did not

accrue until well after Defendants’ deaths through no fault of his own but rather as a result of

being wrongfully imprisoned by the state for 45 years, from holding those who violated the

Constitution to task is undoubtedly inconsistent with federal law encouraging the enforcement

and availability of § 1983 claims. This is particularly true for plaintiffs like Andrews who

already face intense challenges when attempting to re-enter society after a lengthy wrongful

incarceration. To require those individuals—who must find housing and employment, access

healthcare that was unavailable to them behind bars, obtain drivers’ licenses and learn new

technology—to also gather the necessary documentary support and legal advice necessary to

hold the estates of alleged constitutional violators to account in just two months is especially at

odds with our civil rights laws. Today’s decision recklessly expands Robertson’s already

misguided holding and has the potential to allow any state procedural rule to drastically foreclose

claims from individuals whose constitutional rights have been violated by state actors.

I therefore respectfully dissent from Part II of the majority opinion.

With respect to the majority’s Monell holding, I agree that Andrews has shown a genuine

dispute of material fact only as to the missing page from the police report detailing the

exculpatory evidence regarding Willie Watts. And I agree that it is appropriate for the district

court to resolve, in the first instance, whether an unconstitutional policy of the City of Cleveland

caused the alleged violation. I note briefly that our Court has previously held that Cleveland’s

policy, challenged both in that case and before us today, prohibiting its police department from

turning over evidence, “can be read as consistent with a policy of not disclosing exculpatory

[evidence.]” Jackson v. City of Cleveland, 925 F.3d 793, 831, 834 (6th Cir. 2019). Therefore, in

No. 23-3387 Andrews v. City of Cleveland, et al. Page 20

that case, a genuine issue of material fact existed as to whether Cleveland had a policy of

suppressing exculpatory evidence in violation of Brady. Id.

Further, our decision today allows Andrews’ Monell claim against Cleveland to go

forward while foreclosing his claims against the individual Defendant Estates—meaning

Andrews will be in the somewhat unique position of arguing at trial that a municipal policy or

custom led to his constitutional violation, without being able to hold any individual liable.

Cleveland claims that such arguments are foreclosed by case law, because Monell liability for a

constitutional violation can lie only when a “specific individual municipal employee committed

the underlying constitutional violation and identifying a municipal policy or custom which

caused the violation.” Def. Br., ECF No. 34, 34–35. But this argument is contradicted by our

precedent.

Certainly, a finding that there has been a constitutional violation is required for Monell

liability to lie. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986). But this Court has

not interpreted this statement so strictly as to require individual liability for that constitutional

violation—just the opposite. “[I]t is proper to consider possible constitutional violations

committed by a municipality qua municipality, even in the absence of a showing of a

constitutional violation by any one individual officer.” Grote v. Kenton Cnty., Kentucky,

85 F.4th 397, 414 (6th Cir. 2023); see also Epps v. Lauderdale Cnty., 45 F. App’x 332, 334 (6th

Cir. 2002) (Cole, J., concurring) (endorsing “read[ing] Heller to prohibit municipal liability only

when the victim suffers no constitutional injury at all, not when the victim fails to trace that

constitutional injury to an individual police officer”); Winkler v. Madison Cnty., 893 F.3d 877,

900 (6th Cir. 2018) (recognizing Heller’s narrow scope). Thus we, along with some of our sister

circuits, have recognized that “Heller does not preclude a finding of municipal liability even if

no individual officer violated the Constitution where constitutional harm has nonetheless been

inflicted upon the victim and the municipality is responsible for that harm.” Grote, 85 F.4th at

414 (citation omitted); see also Fairley v. Luman, 281 F.3d 913, 917 (9th Cir. 2002) (“If a

plaintiff establishes he suffered a constitutional injury by the City, the fact that individual officers

are exonerated is immaterial to [municipal] liability under § 1983.”); Speer v. City of Wynne, 276

F.3d 980, 986 (8th Cir. 2002) (“The appropriate question under Heller is whether a verdict or

No. 23-3387 Andrews v. City of Cleveland, et al. Page 21

decision exonerating the individual governmental actors can be harmonized with a concomitant

verdict or decision imposing liability on the municipal entity. The outcome of the inquiry

depends on the nature of the constitutional violation alleged, the theory of municipal liability

asserted by the plaintiff, and the defenses set forth by the individual actors.”); Fagan v. City of

Vineland, 22 F.3d 1283, 1294 (3d Cir. 1994) (holding that “a municipality can be liable under

section 1983 and the Fourteenth Amendment for a failure to train its police officers” even if no

individual officer violated the Constitution).

Thus, on remand and while evaluating Andrews’ Monell claim, the district court may be

confronted with the seemingly difficult question of whether his claim against Cleveland can

proceed at all without any anchor of individual liability. But this question has an easy answer.

Plaintiffs seeking to hold municipalities to account will still need to allege, establish, and prove

that an official policy or custom caused a violation of their constitutional rights. Monell v. Dep’t

of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). It is entirely possible for plaintiffs

to do so without necessarily proving that a specific individual violated their rights. Such a

scenario might arise when “when the constitutional harm complained of relates to lack of action

due to a failure to train,” Grote, 85 F.4th at 414, when a constitutional violation is “attributable

to a municipality’s acts alone and not to those of its employees—as when a government actor in

good faith follows a faulty municipal policy,” Epps, 45 F. App’x at 334 (Cole, J., concurring), or

when “the combined acts or omissions of several employees acting under a governmental policy

or custom may violate an individual’s constitutional rights.” Id. (quotation omitted). Therefore,

a finding that an individual officer is liable for the constitutional violation is not a necessary

prerequisite of Monell liability—just a finding that a constitutional violation occurred. And

Andrews has certainly met his burden on that issue.