Ricky Jackson (17-3840); Kwame Ajamu, fka Ronnie Bridgeman, and Wiley Edward Bridgeman (17-3843), Plaintiffs-Appellants,
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
from the United States District Court for the Northern
District of Ohio at Cleveland. No. 1:15-cv-00989-Christopher
A. Boyko, District Judge.
Elizabeth C. Wang, LOEVY & LOEVY, Boulder, Colorado, for
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.
Elizabeth C. Wang, LOEVY & LOEVY, Boulder, Colorado, for
Appellant Ricky Jackson.
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. [*]
K. BUSH, CIRCUIT JUDGE.
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.
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.
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.
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).
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).
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. 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.
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
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.
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
this backdrop of evidence of incomplete Brady
knowledge and frequent Brady violations, the record
tells the following story.
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
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'
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.
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.
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,
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.
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.
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.
were convicted at separate trials. They were sentenced to
death, but their sentences were later reduced to life
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.
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
Id. at PageID 1203-04.
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.
19, 2015, Jackson filed suit against Terpay, Farmer, Stoiker,
Staimpel, and Cleveland (collectively,
"Defendants"), as well as others,  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.
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.
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.
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).
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
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)).
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.
claims against Cleveland under Ohio Revised Code §
2744.07(B) 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." 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.
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.
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
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)).
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
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
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
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.
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).
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.
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
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.
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
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)).
Plaintiffs' Motions to Substitute
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,
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.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.
Survival of § 1983 Claims
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.
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."
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
"[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
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.
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.
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.
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.
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).
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 §
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.
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
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.
Timeliness of Plaintiffs' Claims Against the Estates
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 §§
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.
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. "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)).
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.
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.
Stoiker's Motion for Summary Judgment
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.
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 ...