granting summary judgment dismissing "the plaintiffs claim for damages against the defendants in their official capacity."
How later courts described this case
- granting summary judgment dismissing "the plaintiffs claim for damages against the defendants in their official capacity."
- “If issues of fact preclude granting the shelter of qualified immunity, the case should proceed to trial on the merits.”
- "[I]f there are issues of disputed fact upon which immunity turns,. . .the case should proceed to trial."
Written by the judges who cited it.
The opinion
WILLIAM A. BABLITCH, J.
(concurring). I join both the reasoning and the result of the majority opinion. I also join the concurring opinion authored by Justice Wilcox. I write only to express a concern regarding one of the named defendants.
At oral argument, Mr. Burkes' attorney was asked the reason why Nicholas Hurtgen was named as a defendant in this matter. Although Hurtgen sometimes sits as trustee as the secretary's designee, Hurtgen did not sit as trustee in this particular matter, nor did he cast a vote. From the record before us, I can discern, at best, only peripheral involvement by Mr. Hurtgen. The answer given at oral argument was unsatisfactory.