S.L. Ex Rel. K.L. v. Pierce Township Board of Trustees

RECOMMENDED FOR FULL-TEXT PUBLICATION

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

File Name: 14a0281p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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S.L., a minor, by and through his guardian and next ┐

friend K.L.; K.L., individually and on behalf of all │

others similarly situated, │

│ No. 13-3892

Plaintiffs-Appellants,

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>

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RICHARD ROE, et al.,

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Plaintiffs, │

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v. │

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PIERCE TOWNSHIP BOARD OF TRUSTEES, et al., │

Defendants, │

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THOMAS G. DELGRANDE; EDWARD S. BARTLEY, aka

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Shawn Bartley, aka E. Shawn Bartley, individually │

and on behalf of all others similarly situated, │

Defendants-Appellees. │

┘

Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 1:07-cv-00986—Timothy S. Black, District Judge.

Argued: July 30, 2014

Decided and Filed: November 17, 2014

Before: SILER, BATCHELDER, and DONALD, Circuit Judges.

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COUNSEL

ARGUED: Curt C. Hartman, THE LAW FIRM OF CURT C. HARTMAN, Amelia, Ohio, for

Appellants. Frank H. Scialdone, MAZANEC, RASKIN & RYDER CO., L.P.A., Cleveland,

Ohio, for Appellees. ON BRIEF: Curt C. Hartman, THE LAW FIRM OF CURT C.

HARTMAN, Amelia, Ohio, for Appellants. Frank H. Scialdone, MAZANEC, RASKIN &

RYDER CO., L.P.A., Cleveland, Ohio, for Appellees.

1

No. 13-3892 S.L., et al. v Pierce Twp. Bd. of Trustees, et al. Page 2

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OPINION

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ALICE M. BATCHELDER, Circuit Judge. S.L., a minor, by and through his guardian

K.L., and K.L. individually (“Appellants”), appeal the district court’s summary judgment orders

for Defendants-Appellees Edward (“Shawn”) Bartley and Thomas DelGrande. We AFFIRM.

I.

On December 4, 2006, Pierce Township Police Officer David Homer responded to a call

made by S.L.’s mother. Homer “smelled smoke” upon entering S.L.’s house and S.L.’s mother

reiterated that her teenage son had been setting fires in the house after an argument between the

two had escalated. She said that she had found smoldering Popsicle sticks in her son’s bedroom,

which she thought may have been her son’s attempt to cast a “black magic” spell. Homer then

entered S.L.’s bedroom. Although the Popsicle sticks were not visible, S.L. allegedly admitted

that he had “set some popsicle sticks on fire and they went out after I left the room.” When

asked by Homer whether he was afraid that the house might catch fire, S.L. responded, “I really

don’t care. I don’t want to be here.” Homer then arrested S.L. for aggravated arson and

transported him to the Clermont County Juvenile Detention Center (“Detention Center”).

Thomas G. DelGrande was the superintendent of the Detention Center.

Upon arriving at the Detention Center, Homer prepared a complaint charging S.L. as a

delinquent child based on the felony charge of aggravated arson, and turned over custody of S.L.

to Detention Center “Youth Leader” Shawn Bartley. Clermont County Juvenile Court Judge

Stephanie A. Wyler had appointed Bartley as “Youth Leader” and deputy clerk. The

appointment as clerk authorized Bartley to sign a complaint, and Bartley did sign the complaint

prepared by Homer, attesting that Homer had taken an oath in his presence as required by Ohio

Rule of Juvenile Procedure 10(B)(3). Bartley, however, never administered the oath to Homer.

S.L. appeared before Judge Wyler fewer than twelve hours later. At this hearing, Judge

Wyler appointed a guardian ad litem, set a date for the pre-trial hearing, and ordered the

No. 13-3892 S.L., et al. v Pierce Twp. Bd. of Trustees, et al. Page 3

continued detention of S.L. pending a psychological evaluation. S.L. was released on December

11, 2006, and his aggravated arson charge was later dismissed.

The Appellants sued Homer, Bartley, DelGrande, Chief of Police James T. Smith, and

Pierce Township Board of Trustees in the United States District Court for the Southern District

of Ohio. The claims against Homer included a 42 U.S.C. § 1983 action premised on a violation

of S.L.’s Fourth Amendment rights, and state-law claims for false arrest, false imprisonment,

malicious prosecution, and loss of filial consortium. The district court characterized the

“ultimate issue for . . . these claims” as “[w]hether Homer had probable cause to arrest S.L. for

aggravated arson.” The district court denied the Appellants’ motion for partial summary

judgment against Homer, holding that a genuine dispute of material fact existed on whether S.L.

told Homer that he set the Popsicle sticks on fire, and thus whether there was probable cause to

arrest S.L.

The Appellants also filed a motion for partial summary judgment against Bartley,

alleging that Bartley, under § 1983, violated S.L.’s Fourth Amendment rights and falsely arrested

and imprisoned him. After noting that the Appellants’ § 1983 claim depended on whether

Bartley “had a duty to make an independent assessment of probable cause for S.L.’s arrest and

detention,” the court denied the Appellants’ motion, finding “[a]fter an exhaustive search, . . . no

duty for a detention clerk to make an independent assessment of probable cause before an

arrestee may be detained.” The court also denied the Appellants’ motion on their false arrest

claim because a genuine dispute of material fact existed as to whether Bartley had the legal

authority to administer oaths and whether, if he did not, the absence of legal authority made

S.L.’s detention unlawful.

Pierce Township Board of Trustees, Smith, and Homer (“Township Defendants”) filed

their own joint motion for summary judgment on five claims: the § 1983 action premised on a

violation of S.L.’s Fourth Amendment rights, the false-arrest and malicious prosecution claims

against Homer, the negligent-supervision claim against Smith, and the loss of filial consortium

claim against both Smith and Homer. On the § 1983 claim against the Township Defendants, the

district court “when viewing the evidence and drawing all reasonable inferences in favor of the

nonmoving party” was “forced to conclude that Judge Wyler did not make a probable-cause

No. 13-3892 S.L., et al. v Pierce Twp. Bd. of Trustees, et al. Page 4

determination,” which would have precluded relitigation of the probable-cause issue. The court

then denied summary judgment for the Township Defendants on the Appellants’ § 1983 claim,

holding that given the fact-intensive nature of the probable-cause inquiry, a genuine dispute of

material fact existed on whether Homer had probable cause to arrest S.L. for aggravated arson.

The court did grant the Township Defendants’ motion on the Appellants’ § 1983 official-

capacity claim against Smith, holding that insufficient evidence existed that police department

training was inadequate or that Smith knew of prior unconstitutional actions and failed to

respond. Next, the court denied the Township Defendants’ motion for summary judgment on the

Appellants’ § 1983 individual-capacity claim against Homer, primarily because “summary

judgment based on a qualified immunity defense is inappropriate in a § 1983 action” where a

genuine dispute of material fact exists “on which the question of immunity turns.” The factual

dispute identified by the court was whether Homer had probable cause to arrest S.L.1

Finally, on the Appellants’ state-law claims, the district court granted Pierce Township’s

motion for summary judgment, holding that Pierce Township is immune from suit under Ohio

Rev. Code Ann. § 2744.02. Finding that the Appellants “have failed to brief this issue,” the

district court granted summary judgment to the Township Defendants on Smith’s immunity

claim, resulting in summary judgment on the Appellants’ negligent-supervision claim as well.

The district court denied summary judgment on Homer’s claim for immunity, however, because

“Ohio courts have found that summary judgment on immunity grounds is improper where there

is a genuine issue of fact as to whether an officer had probable cause to effectuate an arrest.”

And, for the same reason, the court denied the Township Defendants’ summary judgment motion

on the Appellants’ false-arrest claim against Homer. The Township Defendants’ motion on the

Appellants’ malicious prosecution claim against Homer similarly was denied because “the

existence of probable cause is subject to a genuine dispute,” “malice is tied so closely to

probable cause,” and “[n]either party points to sufficient evidence . . . to allow this Court to

determine definitively the eventual disposition of S.L.’s juvenile-court case.” The court also

1

The court granted summary judgment to the Township Defendants on the Appellants’ § 1983 due process

claims, finding that the Appellants “have abandoned any due-process claims.” And, for the same reason, the court

granted summary judgment to the Township Defendants on the Appellants’ § 1983 official policy, practice, and

custom claims against Pierce Township.

No. 13-3892 S.L., et al. v Pierce Twp. Bd. of Trustees, et al. Page 5

awarded summary judgment to the Township Defendants on K.L.’s loss of filial consortium

claim because S.L. did not suffer a “physical injury” as required by Ohio law.

On the issue of damages, the court denied the Township Defendants’ summary judgment

motion pertaining to compensatory damages, concluding that S.L.’s deposition testimony

identified sufficient evidence of damages. With respect to punitive damages, the court held that

Pierce Township was itself immune from punitive damages under both § 1983 and Ohio law.

But “[b]ecause a genuine dispute exists as to whether Officer Homer acted with malice,” the

district court denied the Township Defendants’ motion as to punitive damages against Homer.

Finally, the court held that the Township Defendants’ motion for summary judgment on

attorney’s fees and costs was “premature.”

Bartley filed his own motion for summary judgment on the Appellants’ § 1983, false

arrest, and loss of filial consortium claims. The court granted the motion on all claims, holding

that “Bartley was performing a quasi-judicial function by accepting the complaint against S.L.

and by preparing a risk assessment,” and thus he was entitled to absolute, quasi-judicial

immunity.

DelGrande also filed a motion for summary judgment on the Appellants’ official-capacity

§ 1983 claim, state-law negligent supervision claim, and loss of filial consortium claim. On the

official-capacity § 1983 claim for violation of S.L.’s Fourth Amendment rights, the district court

held that DelGrande had final policymaking authority over the detention center, that DelGrande

“fail[ed] to address the issue of deliberate indifference,” and that “based on the Detention

Center’s policies in place at the time of S.L.’s detention, prior instances of unconstitutional

conduct demonstrating a history of abuse can be inferred.” The court therefore denied summary

judgment on the Appellants’ official-capacity § 1983 claim against DelGrande.

DelGrande argued that he was immune from liability under Ohio law on the Appellants’

negligent supervision claim, but the district court disagreed, holding that DelGrande could have

acted recklessly—and thus outside the scope of immunity under Ohio Rev. Code Ann.

§ 2744.03(A)(6)—because “where there is evidence that Defendant DelGrande trained Detention

Center employees regarding the constitutional rights of juveniles, that evidence is incomplete

and subject to doubt—it is subject to genuine dispute.” The court also agreed with the

No. 13-3892 S.L., et al. v Pierce Twp. Bd. of Trustees, et al. Page 6

Appellants that sufficient evidence existed that DelGrande failed to train on “constitutional

detention issues” like probable cause requirements, which “is enough . . . to overcome Defendant

DelGrande’s presumption of statutory immunity.” On the merits of the Appellants’ negligent

supervision claim, the court concluded that DelGrande did not “properly move[] for summary

judgment on this claim,” but even “if he did intend to make such a motion . . . DelGrande’s

motion for summary judgment is DENIED in this respect.” Finally, the court granted

DelGrande’s motion for summary judgment on K.L.’s claim for loss of filial consortium,

concluding that S.L. did not allege a “physical injury.”

DelGrande filed a Rule 59(e) motion to reconsider, arguing that the court clearly erred by

not “first finding that Officer Bartley’s conduct violated S.L.’s constitutional rights.” The court

denied the motion, holding that DelGrande had forfeited this argument and the court had not

clearly erred. DelGrande appealed the district court’s denial of statutory immunity under Ohio

law. We affirmed. See S.L. ex rel. K.L. v. Pierce Twp. Bd. of Trs., 509 F. App’x 536, 539 (6th

Cir. 2013).

The case was transferred to a new district court judge, and DelGrande filed a second

motion for reconsideration, reiterating that the district court clearly erred by not first finding that

Bartley’s conduct violated some constitutional right. This time, the district court granted

DelGrande’s motion for summary judgment on the Appellants’ § 1983 claim.2 In addition to

holding that DelGrande could not be liable because Bartley had not violated S.L.’s constitutional

rights, the court sua sponte raised an Eleventh Amendment defense, and also granted

DelGrande’s motion for summary judgment on the Appellants’ state-law negligent supervision

claim, holding that because Bartley was not liable to S.L., DelGrande could not be liable either.

S.L. and K.L. now appeal the district court’s summary judgment order in favor of Bartley

on their § 1983 claims, and its subsequent summary judgment order in favor of DelGrande on

their § 1983 and state-law claims.

2

“District courts have inherent power to reconsider interlocutory orders and reopen any part of a case

before entry of a final judgment.” Mallory v. Eyrich, 922 F.2d 1273, 1282 (6th Cir. 1991).

No. 13-3892 S.L., et al. v Pierce Twp. Bd. of Trustees, et al. Page 7

II.

The district court raised sua sponte an Eleventh Amendment defense with regard to

DelGrande. When the merits offer a more straightforward means of resolving a case and the

defendants raise sovereign immunity only as an alternative defense on appeal, we have held that

it is unnecessary to address a potential Eleventh Amendment defense. Nair v. Oakland Cnty.

Cmty. Mental Health Auth., 443 F.3d 469, 477 (6th Cir. 2006). When a party “declines to raise

sovereign immunity as a threshold defense, we conclude that the federal courts have discretion to

address the sovereign-immunity defense and the merits in whichever order they prefer.” Ibid. In

Nair, we “bypass[ed]” the state’s Eleventh Amendment defense, instead dismissing the case on

the merits of the plaintiff’s constitutional and statutory claims. Ibid.

We do the same here. DelGrande first raised sovereign immunity as an alternative

defense in this appeal; he did not raise it as a threshold defense on a motion to dismiss. And

ruling that DelGrande is entitled to Eleventh Amendment immunity would not resolve all claims,

but addressing the underlying absence of a constitutional violation would. We therefore decline

to address Eleventh Amendment immunity, instead resolving the case on the merits.

III.

We review de novo a district court’s summary judgment order. Johnson v. Karnes,

398 F.3d 868, 873 (6th Cir. 2005). Summary judgment should be granted “if the movant shows

that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). To survive a motion for summary judgment, “[a] § 1983

claim must satisfy two elements: 1) the deprivation of a right secured by the Constitution or laws

of the United States and 2) the deprivation was caused by a person acting under color of state

law.” Ellison v. Garbarino, 48 F.3d 192, 194 (6th Cir. 1995) (internal quotation marks omitted).

A.

The Appellants assert that by taking custody of S.L., Bartley was effectively arresting and

detaining him, without probable cause and without a warrant, in violation of S.L.’s Fourth

Amendment rights. And, they argue, because the Fourth Amendment applies to all state actors,

No. 13-3892 S.L., et al. v Pierce Twp. Bd. of Trustees, et al. Page 8

Bartley’s “seizure” of S.L. without a warrant and without probable cause gives rise to a cause of

action under § 1983.

The Appellants cannot show the deprivation of a constitutional right. It was Homer—not

Bartley—who arrested (or seized) S.L. They point to no authority to support the proposition that

an alleged constitutional violation by an arresting officer imputes § 1983 liability to each

successive officer who takes custody of the arrestee, or that each successive officer

independently “seizes” the arrestee within the meaning of the Fourth Amendment. Counsel

conceded at oral argument that to his knowledge, no court has ever held that an intake officer

such as Bartley who takes custody of an arrestee and facilitates the administrative steps incident

to a warrantless arrest violates the Constitution if the arresting officer originally lacked probable

cause. In fact, caselaw suggests the contrary.

In Gerstein v. Pugh, 420 U.S. 103, 125 (1975), the Supreme Court held that the Fourth

Amendment requires a “prompt[]” determination of probable cause after a warrantless arrest and

detention. The Court recognized that “a policeman’s on-the-scene assessment of probable cause

provides legal justification for arresting a person suspected of crime, and for a brief period of

detention to take the administrative steps incident to arrest.” Id. at 113–14. And in County of

Riverside v. McLaughlin, 500 U.S. 44, 53 (1991), the Court reiterated that it had “stopped short

of holding that jurisdictions were constitutionally compelled to provide a probable cause hearing

immediately upon taking a suspect into custody.” It then concluded “that a jurisdiction that

provides judicial determinations of probable cause within 48 hours of arrest will, as a general

matter, comply with the promptness requirement of Gerstein.” Id. at 56. Gerstein and

McLaughlin establish that an officer’s pre-arrest probable cause determination is sufficient legal

authority for the detention of an arrestee pending a judicial probable cause determination. That

determination must take place “promptly,” generally within forty-eight hours.

In denying the Appellants’ motion for summary judgment, the district court characterized

the issue as whether Bartley “had a duty to make an independent assessment of probable cause

for S.L.’s arrest and detention.” The Appellants insist that because they argue only that probable

cause did not exist and thus Bartley violated the Fourth Amendment, Bartley and the district

No. 13-3892 S.L., et al. v Pierce Twp. Bd. of Trustees, et al. Page 9

court “mischaracterize[] the basis of the claims.” Reply Br. 2.3 But how could Bartley ensure

that S.L.’s arrest was supported by probable cause unless he undertook the independent

determination of probable cause that Gerstein and McLaughlin held was not required? Such a

rule would mean that every police officer, corrections officer, and courtroom deputy who takes

custody—however briefly—of an arrestee such as S.L. must make this independent assessment

or risk § 1983 liability.4 After an initial warrantless seizure, the Fourth Amendment requires

only a “prompt[]” judicial probable cause determination. Because Bartley did not violate S.L.’s

constitutional rights, the district court did not err by granting summary judgment to Bartley on

the Appellants’ § 1983 claim.

B.

The Appellants also seek to impose § 1983 liability on DelGrande “based on municipal or

supervisory liability” in his official capacity as the supervisor of the Detention Center. The

Appellants premise liability on inadequate training.

“[A]n official-capacity suit is, in all respects other than name, to be treated as a suit

against the entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985). We said in Barber v. City of

Salem, 953 F.2d 232, 235–36 (6th Cir. 1992), that “a municipality may [] be liable under

42 U.S.C. § 1983 in certain circumstances for constitutional violations arising from its failure to

properly train its employees.”

In order for a plaintiff to prevail against a municipality, the plaintiff must show

that inadequate training represented a city policy and that the need for better

training was so obvious and the inadequacy so likely to result in a violation of

constitutional rights, that the municipality can be said to have been deliberately

indifferent to the need.

Id. at 236. The “policy” prong “requires a showing that the unconstitutional policy or custom

existed, that the policy or custom was connected to the county, and that the policy or custom

caused his constitutional violation.” Napier v. Madison Cnty., 238 F.3d 739, 743 (6th Cir. 2001).

3

Neither Bartley nor the district court, moreover, mischaracterizes the Appellants’ claims. The Appellants

argue repeatedly that the Fourth Amendment “require[s] some independent assessment and determination that the

arrest and detention is legally justified.”

4

And if Bartley were required to make this independent assessment of probable cause, he probably would

be exercising judicial authority and would be entitled to claim quasi-judicial immunity.

No. 13-3892 S.L., et al. v Pierce Twp. Bd. of Trustees, et al. Page 10

In Weeks v. Portage County Executive Offices, 235 F.3d 275, 279 (6th Cir. 2000), we explained

that an attempt to impose municipal liability under § 1983 requires an underlying violation of the

§ 1983 claimant’s constitutional rights. See also Wilson v. Morgan, 477 F.3d 326, 340 (6th Cir.

2007) (“There can be no Monell municipal liability under § 1983 unless there is an underlying

unconstitutional act.”); Napier, 238 F.3d at 743 (“Because the analysis concludes that Napier

cannot show that he suffered an underlying constitutional violation, his claims against Madison

County must also fail.”). We concluded in Section III.A, however, that Bartley did not violate

S.L.’s constitutional rights. Because no underlying constitutional violation occurred, the district

court did not err by granting summary judgment to DelGrande on the Appellants’ § 1983

municipal liability claim.

To the extent the Appellants raise a separate supervisory liability claim under § 1983 for

a policy of inadequately training subordinates, O’Banion v. Bowman, 824 F. Supp. 743, 745

(S.D. Ohio 1993), their claim must fail. “[A] prerequisite of supervisory liability under § 1983 is

unconstitutional conduct by a subordinate of the supervisor.” McQueen v. Beecher Cmty. Sch.,

433 F.3d 460, 470 (6th Cir. 2006). But because Bartley did not violate S.L.’s constitutional

rights, supervisory liability does not attach to DelGrande under § 1983.

IV.

The Appellants also bring a state-law negligent supervision claim against DelGrande.

The district court held that “[u]nder Ohio law, where no cause of action may be maintained

against the individual employee, a claim against the employer for negligent supervision and

negligent training necessarily fails as a matter of law.”

In Strock v. Pressnell, 527 N.E.2d 1235 (Ohio 1988), the Ohio Supreme Court held that a

negligent supervision claim against a church failed because

an underlying requirement in actions for negligent supervision and negligent

training is that the employee is individually liable for a tort or guilty of a claimed

wrong against a third person, who then seeks recovery against the employer.

Because no action can be maintained against [the minister] in the instant case, it is

obvious that any imputed actions against the church are also untenable.

No. 13-3892 S.L., et al. v Pierce Twp. Bd. of Trustees, et al. Page 11

Id. at 1244. Bartley is neither “liable for a tort” nor “guilty of a claimed wrong” because he did

not violate S.L.’s constitutional rights.5 Bartley’s liability is premised solely on the Appellants’

unsuccessful § 1983 claim. Accordingly, the district court did not err by granting summary

judgment for DelGrande on the Appellants’ state-law negligent supervision claim.

V.

For the foregoing reasons, we AFFIRM the judgment of the district court.

5

The Appellants contend that Strock provides a disjunctive test, and thus an employee need not be “liable”

provided the employee is “guilty of a claimed wrong.” This argument arises because the district court ordered

summary judgment for Bartley on the basis of quasi-judicial immunity and did not reach the merits of the § 1983

claim. Because we resolve the claim against Bartley on the merits, we need not comment on whether the Strock test

is disjunctive. Bartley is neither “liable” nor “guilty.”