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Jackson v. City of Cleveland

United States Court of Appeals, Sixth Circuit

May 20, 2019

Ricky Jackson (17-3840); Kwame Ajamu, fka Ronnie Bridgeman, and Wiley Edward Bridgeman (17-3843), Plaintiffs-Appellants,
v.
City of Cleveland; Jerold Englehart; Karen Lamendola, Guardian Ad Litem on behalf of Frank Stoiker; Estate of Eugene Terpay, Administrator; Estate of James T. Farmer, Administrator; Estate of John Staimpel, Administrator, Defendants-Appellees.

          Argued: June 14, 2018

          Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:15-cv-00989-Christopher A. Boyko, District Judge.

         ARGUED:

          Elizabeth C. Wang, LOEVY & LOEVY, Boulder, Colorado, for all Appellants.

          William M. Menzalora, CITY OF CLEVELAND, Cleveland, Ohio, for Appellee City of Cleveland.

          Stephen W. Funk, ROETZEL & ANDRESS, LPA, Akron, Ohio, for Appellees Karen Lamendola and the Estates of Eugene Terpay, James Farmer, and John Staimpel.

         ON BRIEF:

          Elizabeth C. Wang, LOEVY & LOEVY, Boulder, Colorado, for Appellant Ricky Jackson.

          Terry H. Gilbert, Jacqueline C. Greene, FRIEDMAN & GILBERT, Cleveland, Ohio, David E. Mills, THE MILLS LAW OFFICE LLC, Cleveland, Ohio, for Appellants Kwame Ajamu and Wiley Bridgeman. William M. Menzalora, CITY OF CLEVELAND, Cleveland, Ohio, for Appellee City of Cleveland.

          Stephen W. Funk, ROETZEL & ANDRESS, LPA, Akron, Ohio, for Appellees Karen Lamendola and the Estates of Eugene Terpay, James Farmer, and John Staimpel.

          Before: ROGERS and BUSH, Circuit Judges. [*]

          AMENDED OPINION

          JOHN K. BUSH, CIRCUIT JUDGE.

         Appellants Ricky Jackson, Wiley Bridgeman, and Kwame Ajamu served a long time in prison for a crime they did not commit. For Jackson, it was thirty-nine years; for Bridgeman, thirty-seven years; for Ajamu, twenty-five years. They each spent close to two and a half of those years on death row.

         These men cannot get back any of the time they lost or erase the things they experienced. The best they can hope for is a remedy of damages under 42 U.S.C. § 1983 and Ohio law. This appeal concerns whether their complaints state sufficient facts for certain claims not to be dismissed and whether the men have presented enough evidence for other claims to overcome summary judgment.

         In 1975, Jackson, Ajamu, and Bridgeman were convicted of murder. Their convictions were based largely on the purportedly eyewitness testimony of Edward Vernon, who then was thirteen years old. In 2014, nearly forty years later, Vernon recanted, disclosing that police officers had coerced him into testifying falsely. Vernon's recantation led to the overturning of appellants' convictions.

         The exonerated men filed suit in the Northern District of Ohio, alleging § 1983 claims based on alleged violations of their constitutional rights by the officers and the City of Cleveland ("Cleveland"), along with state-law claims for indemnification against Cleveland. This appeal requires us to untangle a knot of legal issues surrounding the district court's grant of appellees' motions for judgment on the pleadings and for summary judgment and its denial of appellants' motions to amend their complaints. We AFFIRM the district court's grant of summary judgment as to the § 1983 claims based on conspiracy, but we REVERSE and REMAND the district court's (1) judgment on the pleadings as to the indemnification claims; (2) denial of appellants' motions to amend their complaints to substitute the administrator of the estates of the deceased officers as a party in their place; (3) summary judgment as to § 1983 claims arising from violations of Brady v. Maryland, 373 U.S. 83 (1963), fabrication of evidence, and malicious prosecution; and (4) summary judgment as to claims against Cleveland based on Monell v. Department of Social Services, 436 U.S. 658 (1978).

         I. BACKGROUND

         A. Factual Background

         As befits this stage of the litigation, we recite the relevant facts in the light most favorable to the plaintiffs, who are appellants here. See Ciminillo v. Streicher, 434 F.3d 461, 464 (6th Cir. 2006).

         In 1973, the Cleveland Division of Police promulgated General Police Order 19-73 ("GPO 19-73"), entitled "PRETRIAL DISCOVERY RIGHTS OF DEFENSE ATTORNEYS AND COURTS IN CRIMINAL CASES." R. 101-7, PageID 1630.[1] GPO 19-73 provided that "defense counsel may be entitled" to several types of evidence, including "[e]vidence favorable to the defendant." Id. But it also included a section entitled "EXCEPTION TO THE FOREGOING," which contained the following provision: "The foregoing does not authorize the discovery or the inspection of . . . statements made by witnesses or prospective witnesses to state agents." Id. The Manual of Rules used by the Division of Police (the "Manual") did not otherwise instruct officers in handling potentially exculpatory information and did not mention Brady, as the Manual's last update had occurred before Brady was decided.

         As described later in this opinion, some testimony suggests that Cleveland police officers may have received no formal training in their Brady obligations, and may not have known that Brady imposed any obligations upon them.

         Deposition testimony also reveals that, regardless of how officers understood their obligations under Brady, violations of those obligations were common. Although it was generally understood that anything in a detective's file that was pertinent to a case "should go to the prosecutor," it was up to individual officers whether they followed this policy, and they did not always do so. R. 103, PageID 3794. The general practice at the time, followed in "every case," was for detectives to provide prosecutors with only "arrest reports, witness forms and written statements taken by the Statement Unit," and "photos," while omitting to turn over other evidence, including potentially exculpatory evidence, unless it was specifically requested by the prosecutor. Id. at PageID 3672-75. Deposition testimony describes this as a "practice," which "happened more than it should," of "detectives not [turning] over all the evidence to prosecutors." R. 104, PageID 3970.

         Some detectives took a more proactive role by "manipulating the evidence" before giving it to prosecutors. Id. at PageID 3967. This was done, one officer testified, "because winning the case was what it was all about. It wasn't about what was fair, it wasn't about what was honest, it was about winning." Id. at PageID 3967-68.

         Against this backdrop of evidence of incomplete Brady knowledge and frequent Brady violations, the record tells the following story.

         On May 19, 1975, Edward Vernon, then twelve years old, was riding the bus home from school when he heard two gunshots. Being twelve, Vernon exited the bus at the earliest opportunity and ran to where he believed the shots originated. Coming upon the scene, Vernon found a gunshot victim, but nothing to indicate who was responsible for the shooting. After police had secured the area, Vernon left and met up with a friend who told Vernon that the perpetrators were Ricky Jackson, Kwame Ajamu (then known as Ronnie Bridgeman), and Wiley Bridgeman (collectively, "Plaintiffs"). Vernon, a civic-minded youth, returned to the crime scene and told an officer that he knew who had committed the shooting, whereupon the officer recorded Vernon's contact information.

         The next day, Detectives Eugene Terpay and James Farmer went to Vernon's house and requested that he go down to the station to give a statement. As Vernon later recounted, when his mother asked to accompany him to the station, the officers "told her, no, he'll be all right, he'll be all right." R. 99-1, PageID 1183. At the station, Vernon told Terpay and Farmer that Plaintiffs had committed the shooting and gave their descriptions, which he was able to do because he knew them from the neighborhood. The following day, Terpay and Farmer again went to Vernon's house and asked him for Plaintiffs' addresses.

         Detective John Staimpel, along with his partner Frank Stoiker, was working the case with Terpay and Farmer. On May 25, Staimpel and another detective, whose name Vernon cannot remember, picked Vernon up at his house to bring him to a line-up. Vernon's mother again asked to accompany him, and Vernon recalls the detectives saying, "[N]o, he'll be all right. We'll bring him back after the lineup." Id. at PageID 1189. The detectives brought Vernon to the line-up and, as he recollects, asked him if "I see anybody that I recognize up there," which Vernon interpreted as asking whether he had seen anyone in the line-up commit the shooting. Id. at PageID 1190. Vernon replied that he had not. Ricky Jackson and Wiley Bridgeman, who had been arrested earlier in the day, were in that line-up. From Vernon's point of view, he had been forthright up until this point: he had honestly told the detectives that (he thought) he knew who had committed the crime, but he had never said that he had actually witnessed the crime, and so when he was asked at the line-up whether he saw anyone whom he had seen commit the crime, he said no.

         The two detectives then brought Vernon into a room, whereupon Staimpel accused Vernon of lying, threatened to send his parents to jail for perjury, banged on a table, and used racial pejoratives to describe Vernon. (Vernon and Plaintiffs are African-Americans.) After Vernon began to cry, Staimpel said, "[W]e'll fix it," and the detectives left the room. Id. at PageID 1191. When the detectives returned, they gave Vernon a piece of paper, explained to him that it said he had failed to identify Jackson and Bridgeman in the line-up because he had been scared of their retaliating, and told Vernon to sign it, which Vernon did.

         Stoiker signed a police report dated May 25, 1975, which described Stoiker and Staimpel's picking Vernon up and taking him to the line-up, Vernon's failing to identify Jackson and Bridgeman, and Vernon's explaining this failure as due to his being "very afraid" of Plaintiffs. R. 114-19, PageID 5113.

         The day after the line-up, Terpay and Farmer again spoke with Vernon. The detectives brought Vernon to the station, where he told them that he had not witnessed the crime and that he had never said that he had witnessed the crime. Terpay was wroth, yelling at Vernon and accusing him of having lied when he had gone to the line-up and said "that this is not them." R. 99-1, PageID 1194. Terpay threatened to send Vernon's parents to jail for perjury, and Vernon agreed to testify that he had seen Plaintiffs commit the crime.

         A police report dated May 28, 1975 indicates that Stoiker and Staimpel "[c]onsulted with [the prosecutor] who issued papers charging [Plaintiffs] with [homicide]." R. 114-28, PageID 5321.

         Prior to Jackson's trial, Terpay coached Vernon regarding his testimony and afterwards reviewed the trial transcript with Vernon to ensure that his testimony in the trials of Bridgeman and Ajamu was consistent.

         Plaintiffs were convicted at separate trials. They were sentenced to death, but their sentences were later reduced to life imprisonment.

         For nearly forty years, Vernon struggled with the knowledge that his testimony had put Plaintiffs in prison. He later testified, "Through out [sic] the years this case has . . . be[en] heavy on my emotion, my everything." R. 99-2, PageID 1234. "I wanted to come forward throughout the years, but I was scared, scared to come forward and tell the truth . . . with this battle in my mind, battle in my spirit, battle in my heart . . . . I'm battling with this . . . pretty much all my life . . . ." R. 99-1, PageID 1203. The years did not lessen the turmoil in Vernon's mind.

         One day in 2013, Vernon finally disburdened his conscience. He was lying in a hospital bed, stricken with hypertension and kidney failure, when his pastor visited and told him that Innocence Project attorneys were seeking to exonerate Plaintiffs. Vernon testified:

So, after he stated that and I said, okay, well, you know what-I got up out of the bed and I just broke down and I cried on his shoulder and I said, well, I'm ready to tell the truth, I'm ready to come forward and tell the truth that Ricky Jackson did not commit the crime that he went to prison for.

Id. at PageID 1203-04.

         Vernon formally recanted his testimony against each of the three Plaintiffs in November 2014. After the recantation, the prosecutor for Cuyahoga County, where Cleveland is located, admitted that there was "no evidence tying any of the three convicted defendants to the crimes" and that "[t]hey have been victims of a terrible injustice." R. 116, PageID 6302-03.

         B. Procedural History

         On May 19, 2015, Jackson filed suit against Terpay, Farmer, Stoiker, [2] Staimpel, and Cleveland (collectively, "Defendants"), as well as others, [3] alleging a multitude of state and federal claims. Bridgeman and Ajamu filed suit against the same defendants on July 2, 2015. On October 1, 2015, Cleveland moved for judgment on the pleadings, under Federal Rule of Civil Procedure 12(c), as to the state-law claims in both complaints. The district court granted both motions.

         In November 2015, Jackson, and Bridgeman and Ajamu in their parallel lawsuit, all moved for leave to file amended complaints substituting the administrator of the estates of the deceased Defendants (the "administrator") for those Defendants. (J. Reid Yoder is the administrator of all of the estates.) The district court denied those motions as futile, reasoning that a § 1983 claim brought in Ohio does not survive a defendant's death.

         On January 27, 2017, Stoiker (the only living individual Defendant) moved for summary judgment in both lawsuits, arguing that he was not involved in any unconstitutional activity and that, even if he was, he is protected by qualified immunity. On the same date, Cleveland also moved for summary judgment as to the Monell claims, arguing that Plaintiffs had failed to provide evidence sufficient for a jury to find Cleveland liable. The district court granted both motions for summary judgment.

         II. DISCUSSION

         We review de novo a judgment on the pleadings under Federal Rule of Civil Procedure 12(c), applying the same standard we apply to review the grant of a motion to dismiss under Rule 12(b)(6). Warrior Sports, Inc. v. Nat'l Collegiate Athletic Ass'n, 623 F.3d 281, 284 (6th Cir. 2010). We therefore "construe the complaint in the light most favorable to the plaintiff and accept all allegations as true" to determine whether the "complaint . . . contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Doe v. Miami Univ., 882 F.3d 579, 588 (6th Cir. 2018) (citations and internal quotation marks omitted).

         Federal Rule of Civil Procedure 15(a)(2) provides that leave to amend "should [be] freely give[n] . . . when justice so requires." "We review a district court's order denying a Rule 15(a) motion to amend for an abuse of discretion." Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000) (citing Gen. Elec. Co. v. Sargent & Lundy, 916 F.2d 1119, 1130 (6th Cir. 1990)). "A district court abuses its discretion when it relies on clearly erroneous findings of fact, uses an erroneous legal standard, or improperly applies the law." United States v. Arny, 831 F.3d 725, 730 (6th Cir. 2016) (citation and internal quotation marks omitted).

         "We review a district court's grant of summary judgment de novo." Adair v. Charter Cty. of Wayne, 452 F.3d 482, 486 (6th Cir. 2006) (quoting Allen v. Mich. Dep't of Corr., 165 F.3d 405, 409 (6th Cir. 1999)). Summary judgment is appropriate when "no genuine dispute as to any material fact" exists and the moving party "is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "A genuine dispute of material fact exists 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Peffer v. Stephens, 880 F.3d 256, 262 (6th Cir. 2018) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). At the summary judgment stage, "the evidence is construed and all reasonable inferences are drawn in favor of the nonmoving party." Burgess v. Fischer, 735 F.3d 462, 471 (6th Cir. 2013) (citing Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 332 (6th Cir. 2008)).

         Numerous decisions by the district court are now on appeal: (1) the district court's dismissal, with prejudice, of Plaintiffs' claims against Cleveland for indemnification under state law; (2) the district court's denial of Plaintiffs' motions to substitute the administrator of the deceased Defendants' estates as a defendant; (3) the district court's grant of summary judgment to Stoiker on the § 1983 claims; and (4) the district court's grant of summary judgment to Cleveland on the Monell claims. We address each issue in turn.

         A. Indemnification Claims

         The claims against Cleveland under Ohio Revised Code § 2744.07(B)[4] seek indemnification for damages based on the alleged torts of the individual Defendants, who are former employees of Cleveland. Section 2744.07(B) provides that "a political subdivision shall indemnify and hold harmless an employee" found liable for that employee's acts, so long as the employee was "acting in good faith" and "within the scope of employment."[5] The district court granted Cleveland's motions for judgment on the pleadings, reasoning that § 2744.07(B) provides only a tortfeasor employee, and not a tort victim, with the right to bring a claim of indemnification against the tortfeasor's employer.

         Plaintiffs argue that the district court erred in dismissing their indemnification claims with prejudice because the claims were not yet ripe and unripe claims, if they are to be dismissed, should only be dismissed without prejudice.

         Generally, a claim may not be adjudicated on its merits unless it is ripe. See Nat'l Rifle Ass'n of Am. v. Magaw, 132 F.3d 272, 284 (6th Cir. 1997). A claim is unripe when it "is anchored in future events that may not occur as anticipated, or at all." Id. (citing Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190, 200-01 (1983); Dames & Moore v. Regan, 453 U.S. 654, 689 (1981)). This prohibition comes both from the case or controversy requirement of Article III and from prudential considerations. See Brown v. Ferro Corp., 763 F.2d 798, 801 (6th Cir. 1985) (noting that a ripeness analysis includes a discretionary determination beyond the Article III standing considerations).

         The ripeness doctrine exists "to prevent the courts, through premature adjudication, from entangling themselves in abstract disagreements." Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580 (1985) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967)). Application of this doctrine "requires that the court exercise its discretion to determine if judicial resolution would be desirable under all of the circumstances." Brown, 763 F.2d at 801. Of primary importance is "whether the issues tendered are appropriate for judicial resolution," and, if so, the degree of "hardship to the parties if judicial relief is denied" before the claim is allowed to ripen further. Young v. Klutznick, 652 F.2d 617, 625 (6th Cir. 1981) (quoting Toilet Goods Ass'n v. Gardner, 387 U.S. 158, 162 (1967)).

         Indemnification claims are frequently brought while unripe, depending as they often do on the favorable adjudication of underlying tort claims. Because of this, as a general matter, a claim for indemnification for damages that may be awarded on an underlying tort claim should not be adjudicated on the merits until the underlying claim is adjudicated. See, e.g., Safety Nat'l Cas. Corp. v. Am. Special Risk Ins. Co., 99 Fed.Appx. 41, 43 (6th Cir. 2004) (finding unripe a claim of indemnification for fraudulent conveyance because, among other reasons, the underlying claim for fraudulent conveyance had not yet been adjudicated); see also Armstrong v. Ala. Power Co., 667 F.2d 1385, 1388-89 (11th Cir. 1982) (affirming dismissal of indemnity suits as premature prior to entry of judgment in underlying lawsuit); A/S J. Ludwig Mowinckles Rederi v. Tidewater Constr. Co., 559 F.2d 928, 932 (4th Cir. 1977) (holding indemnification issue not ripe prior to adjudication of underlying claims).

         Because the ripeness doctrine is discretionary, courts sometimes apply an exception for indemnification claims that have no possibility of success, regardless of the merits of the underlying claims. See, e.g., Cincinnati Ins. Co. v. Grand Pointe, LLC, No. 1:05-CV-161, 2006 WL 1806014, at *9 (E.D. Tenn. June 29, 2006) (collecting cases in support of the proposition that "a court may grant summary judgment on the issue of indemnification if it can determine the allegations in the complaint could under no circumstances lead to a result which would trigger the duty to indemnify" (citations and internal quotation marks omitted)).

         The Sixth Circuit has not analyzed the propriety of this exception, and we need not do so now because, even if it is permissible for district courts to adjudicate indemnification claims with no possibility of success prior to the adjudication of underlying tort claims, this is not such a case.

         If Plaintiffs' indemnification claims have no possibility of success, that would be because Ohio law provides that only the tortfeasor employees, and not the parties injured by them, may bring claims under Ohio Revised Code § 2744.07(B). The district court did an admirable job analyzing Ohio court cases before holding that Ohio law does so provide. See Jackson v. City of Cleveland, No. 1:15CV989, 2016 WL 3952117, at *2 (N.D. Ohio July 20, 2016). But the only cases available to the district court were from the Ohio courts of appeal, as the Ohio Supreme Court had yet to opine on the issue.

         The judgments of Ohio appellate courts not being binding on the Ohio Supreme Court, there remains a possibility that Plaintiffs' indemnification claims could succeed: Plaintiffs would need to win their underlying tort action and, while that action was pending, the Ohio Supreme Court would need to adopt their interpretation of Ohio Revised Code § 2744.07(B). Although the latter eventuality may seem remote, it is far from impossible and, as it happens, the Ohio Supreme Court has accepted an appeal addressing this very issue. See Ayers v. Cleveland, 106 N.E.3d 65 (Ohio 2018) (Table).

         Because it is not impossible for Plaintiffs to prevail on their indemnification claims, those claims are not ripe for adjudication. As discussed above, in evaluating whether a claim is ripe, courts should determine (1) whether a matter is "appropriate for judicial resolution" and (2) whether the parties would undergo hardship "if judicial relief is denied" on their claim before it ripens further. Young, 652 F.2d at 625. Neither factor supports finding the indemnification claims are ripe here.

         First, interpreting Ohio Revised Code § 2744.07(B) is best avoided unless necessary. Federal courts generally avoid interpreting unsettled state law because state "courts are in the better position to apply and interpret" their own jurisdiction's law. Travelers Indem. Co. v. Bowling Green Prof'l Assocs., PLC, 495 F.3d 266, 272 (6th Cir. 2007). As the Supreme Court said in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941) and repeated in Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25 (1959):

Had we or they (the lower court judges) no choice in the matter but to decide what is the law of the state, we should hesitate long before rejecting their forecast of [state] law. But no matter how seasoned the judgment of the district court may be, it cannot escape being a forecast rather than a determination.

Thibodaux, 360 U.S. at 27 (quoting Pullman, 312 U.S. at 499). Where, as here, adjudicating an issue of state law is unnecessary because the litigation is in its early stages, and state law is unsettled, the inappropriateness of deciding the issue in federal court weighs in favor of finding the claim unripe for adjudication in federal court.

         Second, that no harm will befall Cleveland if "judicial relief is denied" for the time being also weighs in favor of finding the indemnification claims unripe. Young, 652 F.2d at 625. The district court's grant of Cleveland's motions for judgment on the pleadings as to Plaintiffs' indemnification claims did not release Cleveland from the litigation, as Plaintiffs still have Monell claims outstanding against Cleveland. The only effect that denying Cleveland's motions, or holding them in abeyance, would have on the litigation would be to delay adjudication of the indemnification claims until a later stage in the litigation. At that point, the district court may be able to avoid interpreting Ohio Revised Code § 2744.07(B), because the Ohio Supreme Court may already have done so. The district court should interpret Ohio law only if the Ohio Supreme Court has not done so by the time the underlying § 1983 claims have been properly adjudicated on remand, and if those claims are found to have merit.

         The ripeness doctrine therefore requires that the indemnification claims not be adjudicated on the merits at the pleading stage, given the unsettled condition of state law. Because "a dismissal with prejudice operates as a rejection of the plaintiff's claims on the merits," the district court erred in dismissing those claims with prejudice. Mich. Surgery Inv., LLC v. Arman, 627 F.3d 572, 575 (6th Cir. 2010) (quoting United States v. One Tract of Real Prop., 95 F.3d 422, 425-26 (6th Cir. 1996)).

         B. Plaintiffs' Motions to Substitute

         Plaintiffs sought leave to amend their complaints to substitute the administrator of the estates of Defendants Terpay, Staimpel, and Farmer as a party in place of those Defendants, as they are now deceased. District courts "should freely give leave" to amend a complaint pre-trial "when justice so requires." Fed.R.Civ.P. 15(a)(2). One permissible reason to deny leave is the "futility of [the] amendment[s]." Foman v. Davis, 371 U.S. 178, 182 (1962).

         The district court denied leave to amend, reasoning that § 1983 claims brought in Ohio do not survive the death of the tortfeasor, and, therefore, the requested amendments would be futile.[6]On appeal, Defendants argue that the district court was correct, but also suggest an alternative ground for affirming-that Plaintiffs did not timely present their claims to the estates of the deceased Defendants. We address the survival and timeliness arguments in turn.

         1. Survival of § 1983 Claims

         Defendants first argue that the denial of Plaintiffs' motions to amend should be affirmed because § 1983 claims do not survive the death of the tortfeasor in Ohio.

         42 U.S.C. § 1988(a) provides that in actions to protect civil rights, where "the laws of the United States . . . are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held," shall be applied, "so far as the same is not inconsistent with the Constitution and laws of the United States."

         The Supreme Court has interpreted this statutory language as requiring a three-step process for determining which jurisdiction's procedural law, such as provisions concerning statutes of limitations or the survival of claims, is used in § 1983 suits. See Robertson v. Wegmann, 436 U.S. 584, 588-89 (1978). First, a district court must determine whether there is an applicable federal law that covers the issue, and, if there is, apply it. See id. Second, if there is no relevant federal law, then the district court must determine what the appropriate rule is in the state where the district court sits. See id. at 588. Third, the district court must determine whether the law of that state is "inconsistent with the Constitution and laws of the United States;" if there is no inconsistency, the state law is used, but if inconsistency exists, a federal common-law rule is used. Id. at 588-89.

         Because "[n]o federal statute or rule says anything about the survivorship of § 1983 claims," Crabbs v. Scott, 880 F.3d 292, 294 (6th Cir. 2018), we turn to the relevant Ohio law, which provides:

In addition to the causes of action which survive at common law, causes of action for mesne profits, or injuries to the person or property, or for deceit or fraud, also shall survive; and such actions may be brought notwithstanding the death of the person entitled or liable thereto.

Ohio Rev. Code § 2305.21. Plaintiffs argued before the district court that their claims fall within "injuries to the person," while Defendants argued that "injuries to the person" encompasses only physical injuries, and not the violation of rights alleged in this case. The district court agreed with Defendants, citing a district court case holding that under Ohio law, § 1983 claims similar to those brought by Plaintiffs did not involve "injuries to the person." Tinney v. Richland Cty., No. 1:14 CV 703, 2014 WL 6896256, at *2 (N.D. Ohio Dec. 8, 2014), aff'd, 678 Fed.Appx. 362 (6th Cir. 2017).

         On appeal, Defendants again argue that Plaintiffs' claims for malicious prosecution, fabrication of evidence, and Brady violations cannot be characterized as "injuries to the person" that survive the death of the tortfeasor. Therefore, they argue that Tinney controls the result here. Defendants also argue that State ex rel. Crow v. Weygandt, 162 N.E.2d 845, 848 (Ohio 1959), an Ohio Supreme Court case holding that state-law claims for malicious prosecution do not survive the death of a party, means that Plaintiffs' § 1983 claims for malicious prosecution also do not survive. The Weygandt court based its holding on Ohio Revised Code § 2311.21, which provided:

Unless otherwise provided, no action or proceeding pending in any court shall abate by the death of either or both of the parties thereto, except actions for libel, slander, malicious prosecution, for a nuisance, or against a judge of a County Court for misconduct in office, which shall abate by the death of either party.

         This provision is still in effect, its language unamended since the Weygandt decision except for one capitalization change. See Ohio Rev. Code § 2311.21. Finally, Defendants point to Stein-Sapir v. Birdsell, 673 F.2d 165, 167 (6th Cir. 1982), a Sixth Circuit case recognizing the Weygandt rule.

         Neither Defendants' reliance on Tinney nor their argument based on Weygandt is persuasive. To begin with, the Sixth Circuit's unpublished opinion affirming the district court in Tinney is no longer good law. After the district court's judgment in this case, Tinney was superseded by Crabbs, a published opinion of this circuit that expressly rejected Tinney's holding and held instead that all § 1983 claims are subject to the forum state's survival rules for personal injury actions, regardless of the specific type of injury underlying the § 1983 claim. See Crabbs, 880 F.3d at 296.

         It is immaterial that Crabbs addressed an unreasonable search claim under the Fourth and Fourteenth Amendments, see id. at 293, whereas Plaintiffs' claims here are for malicious prosecution, fabrication of evidence, and Brady violations. Crabbs expressly disagreed with Tinney, which did involve a malicious prosecution claim. The Tinney plaintiff had sued in Ohio; therefore, his § 1983 claims were subject to Ohio survival rules just as Plaintiffs' claims are here. Noting that the Tinney court did not apply Ohio's survival rule for personal injury actions to a § 1983 malicious prosecution claim, the Crabbs court announced that it was "part[ing] way with" Tinney. Crabbs, 880 F.3d at 296. With that language, Crabbs rejected Tinney's reasoning pertaining to malicious prosecution claims.

         If the explicit rejection of Tinney were not enough to defeat Defendants' argument, the Crabbs court's more general discussion of its rationale would be. Although Crabbs involved an unreasonable search claim, the reasoning applied to all § 1983 claims. See 880 F.3d at 296. In explaining that all § 1983 claims must be classified together for purposes of determining what state procedural rules apply, the Crabbs court cited Wilson v. Garcia, 471 U.S. 261 (1985), in which the Supreme Court addressed what state statute of limitations should apply in § 1983 actions. See Crabbs, 880 F.3d at 294-95. (After Wilson was decided, Congress enacted a federal statute of limitations, codified at 28 U.S.C. § 1658.) Crabbs cited Wilson for three general propositions. "First, the characterization of § 1983 as a cause of action is itself a question of federal law . . . . Second, all § 1983 claims must be characterized in the same way . . . . Third, § 1983 actions are best characterized as personal injury actions." Crabbs, 880 F.3d at 294-95 (second emphasis added) (citing Wilson, 471 U.S. at 269-70, 271-75, 280).

         More specifically, the Crabbs court reasoned that all § 1983 claims must be treated the same way for survival-of-claims purposes, just as they are for statute-of-limitations purposes. Id. at 295. The court's language could not be clearer: "the appropriate level at which to generalize a § 1983 claim under state law is as a personal injury action, sounding in tort, and nothing further." Id. at 296 (emphasis added). Therefore, although Weygandt and Ohio Revised Code § 2311.21 are still good law, after Crabbs, they do not establish a separate survival rule for malicious prosecution claims brought under § 1983.

         Our court's 1982 decision in Stein-Sapir is not to the contrary. Although Defendants argue that that opinion adopted the Weygandt rule, all Stein-Sapir did was apply Weygandt-and an Ohio Court of Appeals decision extending Weygandt's survival rule to libel and slander claims-to hold that the plaintiff's state-law defamation claims did not survive the defendant's death. See Stein-Sapir, 673 F.2d at 167. Stein-Sapir involved only state law and did not mention § 1983.

         When hearing a direct appeal, this court evaluates the merits of the case based on the current law and its interpretation, not the law and its interpretation existing when the district court entered its judgment. See Chaz Concrete Co., LLC v. Codell, 545 F.3d 407, 409 (6th Cir. 2008). After Crabbs, all claims brought under § 1983 are to be treated as actions sounding in personal injury tort. Because Ohio Revised Code § 2305.21 provides that actions for personal injury survive the death of the tortfeasor, and that statute does not conflict with the laws of the United States, see Crabbs, 880 F.3d at 295, all § 1983 actions brought in Ohio survive the death of the tortfeasor.

         Therefore, through no fault of its own because its ruling predated Crabbs, the district court was in error as to its grounds for finding that the proposed amendments, substituting the administrator of the estates of Terpay, Staimpel, and Farmer for those Defendants, would be futile.

         2. Timeliness of Plaintiffs' Claims Against the Estates

         Defendants argue that we should affirm the district court on alternative grounds-namely, that the claims against the estates were not timely brought. Proper adjudication of this issue requires analysis of both Ohio and federal law. Defendants argue that Ohio estate law regarding the timely filing of claims defines which entities have the capacity to be sued, while Plaintiffs argue that those provisions are merely statutes of limitations. See Ohio Rev. Code §§ 2117.06, 2117.37.

         The points of contention do not end there, however. If Plaintiffs are correct that Ohio estate law merely establishes statutes of limitations, the parties also dispute whether those statutes or the general Ohio statute of limitations applies to § 1983 suits. On the other hand, if Defendants are correct that Ohio estate law defines which entities have the capacity to be sued, the parties also disagree over whether federal courts hearing § 1983 actions are bound by that definition, as well as whether an exception to that definition, provided in Ohio Revised Code § 2117.06(G), applies to the facts of this case.

         The district court did not address these issues, instead relying on its holding that the § 1983 claims did not survive the deaths of the deceased Defendants.[7] "It is the general rule that a federal appellate court does not consider an issue not passed upon below." Lindsay v. Yates, 498 F.3d 434, 441 (6th Cir. 2007) (quoting United States v. Henry, 429 F.3d 603, 618 (6th Cir. 2005)). This directive is not jurisdictional, however, and "a departure from this general rule may be warranted when 'the issue is presented with sufficient clarity and completeness and its resolution will materially advance the progress of this already protracted litigation.'" Katt v. Dykhouse, 983 F.2d 690, 695 (6th Cir. 1992) (quoting Pinney Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1461 (6th Cir. 1988)).

         We will follow the general rule and decline to address these issues in the first instance. These are thorny issues of first impression in this circuit, and because the district court has not yet addressed them, we do not believe they are "presented with sufficient clarity and completeness" for our review. Id.

         3. Conclusion

         The district court erred in finding that Plaintiffs' proposed amendments would be futile on the ground that § 1983 claims brought in Ohio do not survive the deaths of the tortfeasors, and we decline to address whether Defendants have presented an alternative ground on which the district court's denial of Plaintiffs' motions to amend could be affirmed. Because applying the wrong legal standard constitutes reversible error on abuse of discretion review, United States v. Arny, 831 F.3d 725, 730 (6th Cir. 2016), the district court's denial of the motions to file amended complaints is REVERSED and REMANDED for further proceedings.

         C. Stoiker's Motion for Summary Judgment

         We next address the district court's grant of summary judgment to Stoiker on the § 1983 claims that Stoiker violated Plaintiffs' Fourteenth Amendment right to due process by withholding exculpatory evidence, fabricating evidence, and conspiring to do the same, and Plaintiffs' Fourth Amendment right to be free of malicious prosecution.

         If a police officer violates the Constitution, "42 U.S.C. § 1983 provides a civil remedy for those" injured by the violation. Peffer v. Stephens, 880 F.3d 256, 263 (6th Cir. 2018). But officers sued under the aegis of § 1983 are protected from liability by the doctrine of qualified immunity "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity does not apply if (1) "on the plaintiff's facts," a constitutional violation occurred, and (2) the alleged violation was of "clearly established constitutional rights of which a ...


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