Daily Services, LLC v. Tracy Valentino

will, not, may willfully likely be Garcia more than tor government officials be torture, likely instigation future but on an tured or at the of or blind to his with the actual- they previously acquiescence public were consent or of a assertion official in or enabled the extortion and ly any government involved or person level other likely again and are to be involved beating acting under color of law. See Marmora to, alleged in the future. The active involve- Fed.Appx. 8 C.F.R. 208.18(a)(1). in their offi- public acting ment of officials The BIA is also instructed to temporal prox- capacity cial close remand to the IJ for fact additional with imity public between Garcia’s contact finding necessary is for the BIA to subsequent threats and officials and make its determination. his assertions and war-

beatings support

rant review. further solely

The BIA denied CAT relief

because it was not clear that the men who beat were actual

threatened and Garcia

police officers. Neither the BIA nor the the alternative view of the

IJ considered SERVICES, LLC, DAILY showing that the extortionists evidence Plaintiff-Appellant, information about have received their act government Garcia from other officials ing capacities. their official Because of Tracy VALENTINO; Kielmeyer; Tina regarding this error what Garcia was re Sico; Does, Through Tom John Nos. 1 protection, quired to show obtain CAT 5, Employees of the Ohio Bureau of BIA legal committed error. We va Compensation, Workers’ Defendants- cate the BIA’s decision and remand for the Appellees. properly consider this evidence agency legal under the under color of law stan No. 13-4157.

dard. Appeals, United States Court of Sixth Circuit.

III. Conclusion reasons, foregoing peti- For the Garcia’s Argued: May for is PART tion review GRANTED IN 26, 2014. Decided and Filed: June IN PART. DENIED We DENY the En Banc Denied Rehearing petition for review as to the BIA’s denial July 2014.* withholding, for petition Garcia’s petition for review as to the GRANT petition protec-

BIA’s denial of Garcia’s for CAT,

tion under the VACATE the BIA’s regarding protection,

decision CAT proceed-

REMAND to the BIA for further

ings opinion.3 consistent with this On re-

mand, the BIA should consider whether * Judge grant rehearing designate Moore would

3. Garcia’s motion to different denied, country preju- of removal without in her dissent. reasons stated dice to his to file that motion with the IJ BIA, appropriate. if II, W. Evan Price Law Of-

ARGUED: II, LLC, Dublin, fice of W. Evan Price Ohio, King, A. Port- Appellant. for James er, LLP, Wright, Morris Arthur & Colum- Ohio, bus, Appellees. for BRIEF: ON W. II, Evan Evan Price Law Office W. II, LLC, Dublin, Ohio, for Appellant. Price Bloomfield, Jr., King, David James A. S. Chamberlin, Porter, Wright, E. Caitlin LLP, Columbus, Ohio, Arthur Morris & Appellees. COLE, Before: MOORE and Circuit DRAIN, Judges; Judge.** District COLE, J., opinion of the delivered court, DRAIN, D.J., joined which ** Drain, Michigan, sitting by designation. The Honorable Gershwin A. United Judge States District for the Eastern District MOORE, J., joined except as to

which MOORE, 910-11), (pp. J.

Part II.C.3. opinion dissenting separate delivered tem- provides short-term part. in central porary employment services COLE, Judge. Circuit Ryan member is company’s Ohio. The sole member Mason. Mason was also sole Services, sued various em- LLC LLC, I-Force, provid- company Bureau of Workers’ ployees of the Ohio longer-term temporary employment ed Bureau filed a ser- after the Compensation losing coverage under the services. After against liens judgments and ies of rating plan, I- group Bureau’s insurance statutory of Ohio’s in violation company the Bureau for self- applied Force with Daily Ser- procedures. administrative The Bureau denied the insurance status. the defendants violated vices claimed that and I-Force owed over application, $3 The right process. its unpaid compensation million in workers’ the defen- concluded district court make to- premiums. payments Unable to immunity. to qualified dants were entitled I-Force closed. Da- premiums, wards the Tay- that Parratt v. recognized The court ily acquired some of I-Force’s Services lor, began offering longer-term customers (1981), and its some- progeny employment services. temporary satisfy a state to times allow opportunity notice or an providing without law allows the Bureau to recover Ohio depriving property to be heard before by filing judgments and unpaid premiums it was not estab- interest. Because against delinquent employers. liens See court apply, that Parratt did not lished 4123.78; 4123.37, §§ Ann. Ohio Rev.Code reasoned, Daily did have a Services not. § 4123-14-02. Under Ohio Admin. Code clearly established process, the Bureau this administrative process. provide employer must with writ- first court’s conclusion in find the district We an premiums ten notice of the overdue applicability error because the of Parratt premiums within opportunity pay “clearly is irrelevant to the established” Ann. twenty days. See Ohio Rev.Code immunity analysis. prong of the § employer pay 4123.37. If the does Nevertheless, doctrine because twenty days, the Bureau must within Daily has not apply, does Services by mail. vide an “assessment” certified provided inadequate pleaded Ohio twenty final Id. The assessment becomes remedies, we affirm the later, days employer petitions unless the granting district court’s decision the defen- reassessment, point at which the Bu- judgment plead- dants’ motion for findings administrator must issue reau’s ings. may employer ap- and an order. Id. The peal findings the administrator’s and order I. BACKGROUND County to the Franklin Court of Common final, Pleas. Id. Once assessment judg- Because the defendants moved for may judgment the Bureau file a with the pleadings, accepts on the this court ment county allega- court and a lien with the complaint’s well-pleaded factual 4123.37, §§ recorder. See id. 4123.78. complaint tions as true and construes the words, law, Daily provides Ohio in other light in the most favorable to Ser- employer opportunity with notice and Iqbal, vices. See Ashcroft may Daily file a again be heard before the Bureau Services moved against judgment. or hen it. court to vacate the In Novem- ber the state court vacated the sec- Ohio law also the Bureau to allows ond million judgment because the $3 as- company deem the successor of anoth- one sessment was “final” light of the purposes compensa- er for of the workers’ pending appeal. administrative Four days 4123.32(C); § tion laws. See Ohio Ad- id. later, on November the Bureau filed an 4123-17-02(B) (C). § min. Code & The $8,400 against Daily lien Services based on may prior employer’s Bureau transfer a yet-to-be-issued its decision that four other experience rating, which is used to calcu- companies owned Mason should be and, premiums, employer late if an “whol- Daily “combined” with Services into one ly in the operation succeeds another of a compensation workers’ policy. The Bu- business,” the Bureau transfer reau did not notice of its decision obligation pay unpaid premiums. before filing Daily the lien. ap- Services 4123-17-02(B). Ohio Admin. Code decision, pealed the Bureau’s but while the appeal was May pending the Bureau filed an the Bureau decided inter- $8,400 nally judgment against Daily wholly Services on succeeded later, I-Force, December 12. About began quest and it I- six weeks after recover Daily Services filed the unpaid premiums complaint, Force’s instant from Ser- the Bureau judgment vices. need not detail dismissed the and lengthy We the released the lien. procedural history The Bureau has not between the Bureau released the Daily second million lien. The part, Services here. relevant $3 parties are still litigating Daily the Bureau did whether notice of its wholly Services assessment via certified mail succeeded I-Force. oppor- or an heard, tunity law, to be in violation of Ohio Daily Valentino, Tracy Services sued before it filed the following judgments and Bureau; Chief Financial Officer of the against Daily liens Services: a million $54 Sico, Tom Assistant General Counsel of lien and a million judgment on Novem- $54 Bureau; Kielmeyer, the Tina the Bureau’s 6, 2009; ber million lien on Novem- $22 Service; Chief of Customer and five un- 8, 2010; ber a million lien on July $3 known Bureau all in their employees, indi- judgment July and a million 13. $3 capacities, § vidual under 42 U.S.C. 1983. Daily Services Daily moved state court to Services alleged the defendants vacate judgments September the 2010. violated its Fourteenth Amendment provided Because the had not pri- Bureau nine times—one notice, or the state court judgment vacated the count for each and lien. Accord- $3 judgment ing Services, million in October 2010 and Daily judgments the these judgment million in February prevented 2011. liens it securing $54 from conven- later, days Ten the Bureau released the tional financing, causing Daily Services however, day, three liens. That same incur hindering excess interest and Bureau filed ability another million lien and company’s expand. Daily Ser- $3 judgment another million against Daily sought vices million in damages. $3 over $1 provided Daily Services. This time the Bureau Services also claimed that the defen- prior assessment, notice of its but it filed intending Daily dants acted to shut down Services, judgment lien and before the in part Bureau’s because Valentino is a Daily administrator appeal heard Services’ close friend of the owner of one of the assessment. competitors. Services’ Pearson v. Calla complaint question either first. answered the

The defendants han, 223, 236, 129 S.Ct. pleadings judgment for on the and moved L.Ed.2d Rule of Procedure under Federal Civil 12(c). mo- granted court The district A. Mootness the defendants It concluded that

tion. qualified immunity be- were entitled matter, the defen As an initial did not establish cause the law is moot because argue dants that this case entitled to notice and Daily Services was of the court vacated all but one the state to be heard before opportunity the Bureau released the judgments and and liens were filed. judgments against Dai remaining judgment liens and timely appealed. moot, ly depriv A case becomes Services. “when ing jurisdiction, courts of federal jurisdiction under The district court had presented longer are no ‘live’ issues §§ 1331 and 28 U.S.C. 28 U.S.C. inter parties legally cognizable lack a 636(c) judge author- gave magistrate Already, est in the outcome.” LLC the case. This court has ity to decide —Inc., —, Nike, U.S. 133 S.Ct. 636(c)(3) §§ jurisdiction under 28 U.S.C. (2013) (quoting Mur 184 L.Ed.2d 553 Hunt, phy v. (1982) curiam)). II. ANALYSIS (per 71 L.Ed.2d 353 it “But a case ‘becomes moot when novo a decision This court reviews de effectu impossible grant court to an action under Federal Rule of dismissing prevailing par al relief whatever 12(c). Procedure Fritz v. Charter Civil ” — U.S. —, Chafin, ty.’ Chafin Comstock, Twp. of (2013) 185 L.Ed.2d Cir.2010). 12(c) evaluate a Rule mo- We Union, (quoting Emps. Knox v. Serv. Int’l pleadings on the as we tion for 1000, — U.S. —, Local 12(b)(6) motion to dismiss. would a Rule (2012)). long “As as Mkt., Inc., Hog IBP 249 F.3d Ziegler v. interest, parties have a concrete how (6th Cir.2001). To survive the 511-12 small, litigation, in ever the outcome of 12(c) motion, complaint “a must con- Rule Knox, the case is not moot.” 132 S.Ct. matter, accepted factual as tain sufficient Clerks, Railway v. 466 (quoting Ellis true, to state a claim to relief that is L.Ed.2d U.S. Iqbal, on its face.” plausible (1984)) (internal quotation marks and (internal quotation 129 S.Ct. 1937 omitted). brackets omitted). marks Daily complaint also reviews de novo the dis- Services’ federal This court damages finding immunity. compensatory punitive of seeks and qualified trict court’s (6th Ribar, liens, judgments 156 F.3d caused and Bloch v. Cir.1998). judgments from the and simply To determine whether state of- release this immunity, damages keeps liens. The claim alone ficials are entitled to Monaghan, ease alive. See Deakins v. generally questions: we ask two whether 193, 201-02, 523, L.Ed.2d that make U.S. plaintiff alleged has facts (1988) (concluding that the had right, a Court out a violation of constitutional jurisdiction plaintiffs’ to address the claims at issue was es- whether attorney’s fees even damages at the time of the misconduct. tablished moot). equitable claims were Ringle, v. 734 F.3d 593 where their Santiago See (6th Cir.2013). Indeed, damages “remains live The court address a claim for settled, resolved, judicially until it is or on question Moreover, of mootness. by a statute of barred limitations.” Gene the Ninth Circuit later overruled Punton — Corp. Symczyk, Healthcare v. sis the extent it rested on the election of —, 1523, 1531, 185 L.Ed.2d 636 remedies doctrine. Haphey v. Cnty., Linn (9th Cir.1992) (en of ap None these three scenarios 953 F.2d 551-52 banc). plies possible It here. for the court to Campbell’s mootness conclusion grant effectual relief on Services’ ground resides on dubious and thus has claim; damages a con continuing precedential Services has little value. crete interest in the litiga outcome WJW-TV, too, help does not the defen- case, therefore, tion. The is not moot. dants. That holding case’s not apply does Knox, Chafin, 133 S.Ct. at a plaintiff where damages seeks additional S.Ct. at 2287. WJW-TV, in federal court. See WJW-TV, The ignore analy- defendants this classic plaintiff sta- TV sis, relying instead Campbell City on sought tion in federal injunctive court re- Park, (6th Cir.1987), fees, Allen 829 F.2d 576 attorney’s lief and damages. but not WJW-TV, Cleveland, City Inc. v. awarded, 878 See id. A state court later (6th Cir.1989) curiam), (per F.2d 906 plaintiff, and another precisely the in- same Pontiac, City Braley junctive 906 F.2d 220 relief the sought TV station in (6th Cir.1990). These cases are unavail- federal court. Id. at 908-09. The state ing. case arose from the “identical pre- facts” in sented WJW-TV resolved “identical Campbell solely relied City Punton v. controversies.” Id. at 910. Under Seattle, Cir.1986), 805 F.2d 1378 circumstances, unique those we found the plaintiffs conclude that a success in a prior TV station’s federal claim moot. Id. at state court proceeding rendered moot her 909-10. But does not apply WJW-TV federal constitutional claim for additional where, here, plaintiff as damages seeks money damages. See Campbell, 829 F.2d sought state court. In Campbell, city 578-80. a fired em- ployee city sued the federal court Braley There, under is also inapplicable. reinstatement, § seeking back pay, plaintiff filed suit in alleging federal court distress, damages for emotional and attor- 1983violation and pendant three state- ney’s fees. Id. at 578. She appealed Braley, also law claims. 906 F.2d at 222. The her discharge state court. Id. The state district court dismissed the three state-law pay, city court awarded back prejudice, rein- claims without and the stated her. Id. The federal court then separate complaint filed a in state court action, § dismissed the 1983 and our court based on those three claims. Id. He re- affirmed. Id. at 577-78. “The constitu- in damages covered state court on two of tionality of employee’s] discharge [the be- the claims. Id. The federal court then suit, came moot once she § was restored to her dismissed the 1983 and our court job affirmed, with a pay,” for back this holding plaintiff that the did not concluded, Punton,” court light an underlying “[i]n state constitutional claim. 222, the claim attorney’s fees and additional at explained Id. 224. This court also damages keep employee’s did not case plaintiff] its view that “once [the obtained Punton, however, alive. at ap- Id. underlying substantial satisfaction of his peared rely court, on the doctrines of claim claim in state the federal issue ... preclusion and election of remedies. 805 became moot.” Id. at 223. The court F.2d at § 1381-82. Neither doctrine bears supplemental wrote 1983 action “[a]

900 was right vices’ claimed constitutional to vindicate a it seeks is available where A constitutional adequate- “clearly not established.” right that was constitutional clearly law action.” Id. established where its con- by right the state is ly vindicated “sufficiently clear that a reason- tours are this take on mootness conclude that We that what he officialwould understand able action, § availability of a 1983 right” other doing is violates —in First, dicta, not in viable. expressed words, “it clear to a rea- where would be reasoning relied Braley court’s mootness unlaw- officer that his conduct was sonable itself rested on Campbell, which heavily in the situation he confronted.” ful overruled subsequently dubious 635, 640, Creighton, v. 483 U.S. Anderson 223-24; Braley, 906 F.2d at grounds. See 3034, (1987); 97 L.Ed.2d 523 107 S.Ct. Second, wholly Campbell, supra. see also 199, Haugen, v. 543 U.S. Brosseau Braley’s reasoning is absent from (2004). An 160 L.Ed.2d 583 125 S.Ct. mootness analysis typically used assess See, apparent must e.g., action’s unlawfulness be issues, including §in 1983 cases. Smith, law, Knox, very but the ac- light pre-existing at Alvarez v. 87, 92-94, 130 S.Ct. have question previously 558 U.S. tion in need not Deakins, (2009); Anderson, 484 U.S. L.Ed.2d unlawful. 483 U.S. been held Third, 199-202, the reason 108 S.Ct. 523. Indeed, “an action’s 107 S.Ct. 3034. Taylor, much Parratt v. ing asks far too apparent can from direct unlawfulness be L.Ed.2d described holdings, specific examples from (1981). viability on the Parratt bears general or from the reason- prohibited, as claim. See of a ing employs.” Hensley that a court 543-44, 101 S.Ct. 1908. Par Cir.2012). Gassman, not, Braley as the court indicat ratt does qualified im- granted The district court § ed, availability of a 1983 action limit the uncertainty about munity because itself, regardless underlying of the consti applies in whether the Parratt doctrine reasoning improperly tutional claim. Such prevail this To on its due case. the merits.” “confuses mootness with claim, explained, Daily the court It Chafin, 133 S.Ct. at 1024. also collides right prede- claimed must show its that a principles with the well-established privation process clearly established. may maintain a 1983 action that, recognized The court under the Par- remedies, judicial exhausting state without doctrine, need not 167, 183, ratt Pape, Monroe (1961), long pro- so as it predeprivation or state remedies, Patsy v. adequate Bd. remedies. administrative vides Regents, 457 U.S. logic: The court then reasoned event, And, 73 L.Ed.2d Services’ where, here, as Braley apply does only if cess exists the Parratt doctrine damages plaintiff did not seek uncertain, and apply; it was does not court. established, that the therefore thus, it apply; Parratt doctrine does Qualified Immunity’s Clearly

B. Es- clearly was not established Ser- and tablished Law process. a right vices had to approach, this formalist the court Under immunity analysis qualified Our immuni- granted the defendants dis addresses the sole basis for the first ty- trict court’s decision: whether Ser- erroneously Palmer, analysis

The district court’s occurs. See Hudson 468 U.S. Parratt, 517, 533, qualified immunity fuses two 104 S.Ct. 82 L.Ed.2d 393 (1984). separate key doctrines that should remain be The inquiry is “whether the they liability cause limit for different rea in position provide state is to for prede- qualified immunity privation process.” sons. The doctrine Id. at 104 S.Ct. competing seeks to balance two interests: If not—because the official’s con- public “the need to hold officials accounta duct is random and unauthorized —the they power irresponsibly responsible ble when exercise state is for the official’s mis- to only and the need shield officials from conduct if it provide does not ade- harassment, distraction, liability quate when remedies. See Miss., they perform reasonably.” their duties v. George Cnty., Brooks Pearson, (5th Cir.1996) (“The 808. 165 doctrine is meant core, qualified immunity At its protect liability “acts the state from for failing safeguard government, thereby pro provide predeprivation process in situa- public large, tect the not to benefit its tions it anticipate where cannot the need Cole, (when 158, 168, agents.” Wyatt v. process U.S. for such actions are random (1992). unauthorized).”). 112 S.Ct. 118 L.Ed.2d 504 The importance doctrine embodies “the words, qualified immunity other pre damages remedy protect the rights of personal liability vents order to allow citizens,” government for where a official public officials to act interest where office, damages abuses her “an action for clearly the law is not The established. may offer the realistic avenue for prevents liability Parratt doctrine in order guarantees.” vindication of constitutional to allow the state to avoid responsibility 800, 807, Fitzgerald, Harlow v. denying for it reasonably cannot (1982). 73 L.Ed.2d 396 be expected provide. See Zinermon v. that, recognizes But the doctrine also Burch, 113, 128, 129, when reasonably officials act in areas (1990). 975, 108 L.Ed.2d 100 established, clearly where the law is not Parratt, then, applicability The is ir reducing being by pro their fear of sued relevant to the prong established tecting them from damages liability better qualified immunity analysis. aAs col public serves the interest. See id. at noted, league on our sister circuit “Grant “clearly 102 S.Ct. 2727. The established” immunity ing clarity based on the lack of prong “reasonably exists to allow officials responsibili as to whether the State bears anticipate when their conduct [to] ty qualified immunity would turn the doc give liability damages.” rise to for Davis trine on its head. The official would in Scherer, seeking immunity effect be based on a 3012, 82 L.Ed.2d 139 belief that his ‘reasonable’ conduct was so doctrine, contrast, wrong i.e.,

The Parratt it was ‘random and unautho — asks whether the responsible state is un rized’—that it could not the basis employ der the Due Process Clause for its a procedural claim.” San Project, ee’s misconduct. If an official’s conduct Inc. v. Gerónimo Caribe Acevedo- (1st Cir.2012) (en Vilá, would deprive otherwise individual of banc) J., (Lipez, concurring). Qualified but is “random and unauthorized,” immunity the Parratt doctrine allows exists to shield actions reason liability by providing light pro the state to avoid able in of current law without Anderson, adequate tecting remedies after the of office. abuses Cir.2007) the district court’s de- 646, (reversing It 638, 107 S.Ct. 3034. applied, the Parratt doctrine cision purpose that doctrine’s would undermine immunity because denying qualified violation but process a due to find clearly right had a established plaintiff the defendant could the remedy no because process); Amsden v. predeprivation him Parratt would let thought that have (1st Moran, 904 F.2d 756-57 (and state) for his viola- the hook off Cir.1990) (assuming “plaintiffs enti- process due law. clearly established tion of ‘clearly estab- tlement to due was J., Gerónimo, (Lipez, F.3d at 500 San ” lished,’ immunity granting qualified but concurring). applied); the Parratt doctrine because Indeed, Supreme Court has never 1368, Mackey, F.2d 1372-73 Merritt v. doctrine when as looked to the Parratt (9th Cir.1987) (reversing the district deserves a defendant sessing whether decision that the Parratt doctrine court’s claimed immunity because the qualified denying qualified immunity applied, and was not process right procedural due clearly had a estab- because the court Nor has our clearly established. process); right predeprivation lished uncertainty about whether ever held York, City New No. 88-cv- Roach v. of im qualified rise to applies gives Parratt (S.D.N.Y. 176944, *4 WL fact, times, sug we have munity. At 1992) immunity July (denying qualified See, e.g., Silberstein gested opposite. pre- follow state where defendant did not 440 F.3d 315-18 City Dayton, v. of procedures, noting (6th Cir.2006) (finding plaintiffs right “[wjhether or not actions were Defendant’s part violated in procedural due ... and unauthorized’ this case ‘random not apply the Parratt doctrine did because question from whether De- is different Parratt, and, finding without reference to immunity”). entitled to fendant is established); Thomas v. right clearly of other have discussed A handful cases (6th Cir.2002) Cohen, 563, 579-81 304 F.3d assessing while the Parratt doctrine (same); Rodgers v. 36th Dist. 529 Fed. Ct. due procedural whether the claimed (6th Cir.2013) (denying Appx. 649-51 established, clearly but cess was qualified immunity by concluding, “[a]fter Parratt none have examined whether the survey an extensive court’s some clearly properly part doctrine contradictory precedent,” that times inquiry place. law in the first established apply, doctrine did not and that Parratt See, Glendale, e.g., City Clement procedural pro plaintiffs right (9th Cir.2008) (granting F.3d established). clearly cess was rea- qualified immunity because the officer of our sister circuits and other Some sonably thought could have suggested that uncertain- courts also have him to tow an other case law would allow Parratt doctrine does not ty about the unregistered notifying vehicle without first “clearly inquiry. established” affect owner); Georgia Dep’t its Powell v. Pataki, See, (11th e.g., Bailey Res., 708 F.3d Human F.3d 1082-83 (2d Cir.2013) Cir.1997) (finding, lengthy after qualified immunity 404-08 be- (granting discussion, viola- clearly it established that cause was procedures the Parratt doctrine did not were tion because additional immunity feasible, ap- be- doctrine apply, denying qualified and thus the Parratt Martinez, process right Coriz v. plied); cause the due Cir.1990) (10th established); (granting qualified v. Univ. Tex. at 1470-71 Stotter uncertainty about the Antonio, immunity because of 821-23 San

903 adequacy remedies un- must be in light specific undertaken of the Parratt, case, though “conceding] der that this context of the a general as broad im- application proposition.”). is an unusual munity”); Sluyter, Birkenholz 857 At the time of the defendants’ Cir.1988) (granting quali- actions, it clearly established immunity fied because a reasonable officer “even the temporary partial impair provided could have believed state law attachments, ments to property rights adequate postdeprivation remedies under liens, and similar encumbrances entail are Parratt). These cases fail therefore process sufficient to merit due protection.” provide meaningful guidance ques- on the Doehr, 1, 12, Connecticut v. U.S. tion before us. (1991). 115 L.Ed.2d theAs

Thus, Supreme while courts consider many years ago, Court stated the Parratt doctrine to determine whether “the root requirement” of due pro plaintiff alleged procedural has a tection is “that an individual given be violation, courts opportunity hearing should not consid for a he is de before prived er doctrine to determine significant property inter process right whether the due at issue was est.” Cleveland Bd. Educ. v. Louder mill, simply established. The doctrine 470 U.S. 105 S.Ct. (1985) place assessing has no “it whether L.Ed.2d 494 (quoting Boddie v. Connecticut, would be clear to a reasonable officer that (1971)) (internal his conduct was unlawful in the situation 28 L.Ed.2d quo Brosseau, omitted). he confronted.” Indeed, tation marks “[t]he 198-99, 125 S.Ct. 596. right prior notice and a hearing is cen tral to the Constitution’s command of due

Here, the district court erred when it process.” United States James Daniel granted qualified immunity based on its 43, 53, 114 Real Prop., Good understanding that the law “is as unsettled 492, 126 L.Ed.2d 490 “We tolerate to whether the a public failure of official to exceptions general some to the rule requir follow procedure established constitutes ing predeprivation notice hearing, but conduct, ‘random and unauthorized’ there- only in extraordinary situations where by triggering Simply put, Parratt.” governmental some valid interest is at clarity court focused on the wrong of the justifies stake that postponing hearing inquiry law. The is not whether a reason- until after the event.” Id. (quoting able official would understand that his Shevin, Fuentes v. wrongful denial of predeprivation process (1972)) (internal quo might ultimately amount to a due omitted). tation marks recog Ohio law cess violation the state under the Par- requirements by requiring nizes these Rather, ratt doctrine. in the context of employees Bureau and its notice claim, opportunity and an to be heard before “clearly inquiry established law” should filing judgment or lien for unpaid premi ask whether a reasonable official would See, ums. Ann. e.g., Ohio Rev.Code understand that the was entitled 4123.37; § Ohio Admin. Code 4123-14- opportunity to notice and an to be heard before the official filed a or lien Silberstein,

against plaintiff. It is well-established and unassailable (“[T]he inquiry F.3d at 316 “a reasonably competent public over whether offi- ‘clearly governing constitutional established’ cial know the his should law elements, we address Harlow, 102 first two so U.S. at conduct.” Thus, Daily has if third. 2727. S.Ct. a of that make out violation

alleged facts right predeprivation its constitutional 1. The Parratt doctrine for infra, the basis discussed process, Federal Constitution defines The the defen- immunity would be a must follow when de procedures state uncertainty about reasonable dants’ inte property an individual of a priving presented “ex- whether the circumstances 541, Loudermill, 105 rest. 470 U.S. some valid traordinary situations where gen process “Procedural due S.Ct. 1487. justified postpon- governmental interest” provide a erally requires that the state heard to be ing opportunity notice or opportunity with notice and an person See James deprivation. until after the person of a depriving be heard before Good, The facts of at 53. Daniel 510 U.S. liberty or interest.” Warren v. property uncertainty. no such present this case Ohio, Athens, 411 F.3d 708 City of po- in the defendants’ Reasonable officials (6th Cir.2005). recognizes these Ohio law would know sitions may Before the Bureau file requirements. opportunity to be process —notice unpaid premiums, or a lien filing the required before heard —was prop an individual of a thereby depriving against and liens Ser- judgments interest, requires law the Bu erty Ohio vices. opportunity notice and an reau See, Ann. e.g., heard. Ohio Rev.Code to be Due Process Violation C. Procedural 4123.37; § § Admin. Code 4123-14- Ohio Though clearly established in this context, Daily specific Services’ vio

procedural process due has been circumstances, however, a certain Under any person “deprive lated. States may satisfy process without state due life, liberty, property, of or without due viding opportunity notice or an to be heard Const, XIV, of amend. law.” U.S. deprivation. before the Three cases stake compo a procedural 1. This clause has guideposts the main of this notorious doc- nent, traditionally which “is viewed as the Taylor, 101 trine: Parratt v. 451 U.S. government provide that the requirement (1981); 1908, L.Ed.2d 420 Hudson S.Ct. procedure’ depriving a ‘fair when someone Palmer, 517, 104 v. S.Ct. life, Props., liberty, property.” or EJS (1984); and Zinermon v. Toledo, City v. LLC Burch, U.S. (6th Cir.2012) (quoting City Collins of L.Ed.2d 100 115, 125, 112 Heights, Harker Parratt, prison guard In a state (1992)). 1061, 117 To S.Ct. L.Ed.2d destroyed prisoner’s proper negligently claim, a establish a ty. 451 1908. The (1) life, plaintiff must show that it had a that, though it Supreme Court held even liberty, protected by interest property (2) provide predeprivation process, did not Clause; the Due Process it was de (3) process by providing satisfied due interest; prived protected of this adequate postdeprivation remedies. See id. adequate proce not afford it the state did ex 101 S.Ct. 1908. The Court rights. Corp. dural Women’s Med. Prof'l (6th Cir.2006). necessity quick Baird, plained that “either impracticality or the Daily action the State The defendants do not contest that any meaningful predeprivation complaint sufficiently alleges providing Services’ coupled availability equal- with the for such intentional conduct process, when [postdeprivation situation, reme- meaningful ly impracticable. of some Id. proce- dy], satisfy requirements may satisfy can process by providing process.” Id. at dural due a meaningful postdeprivation remedy. Id. deprivation at issue Moreover, 1908. Because employee whether the state “a unauthorized resulted from random and knew of the in advance is irrel- proce- act” and not an “established state evant; instead, controlling inquiry is “[t]he dure,” predict precisely the state could not solely in a position whether the state is 541, 543, occur. at the loss would Id. when provide predeprivation process.” Id. (In fact, deprivation 101 1908. the S.Ct. 534, added). at 104 S.Ct. 3194 (emphasis the “unauthorized failure resulted from The Court limited Parratt’s reach in procedure.” ... to follow established state There, Zinermon. hospital state mental 1908.) 543, cases, at 101 In such Id. S.Ct. plaintiff staff admitted the under a “volun- concluded, only imprac- the Court “it is not tary” placement statutory procedure even ticable, impossible, provide but to a mean- though competent he was not give the ingful hearing deprivation.” before the Id. by informed required consent the statute. The found at S.Ct. 1908. Court Zinermon, 118-21, at See postdeprivation that the state’s remedies argued S.Ct. 975. The that the fully compensated [prison- “could have staff him deprived liberty members property for the loss he suffered” and er] without they due when failed to satisfy process. were sufficient to due Id. involuntary placement initiate the statute’s 544, at The S.Ct. 1908. Court reaf- 123-24, procedure. Id. at 110 S.Ct. 975. in Logan firmed and cabined Parratt that, The Court held unlike Parratt and Co., 422, Zimmerman Brush Hudson, postdepri- the existence of state (1982), holding S.Ct. 71 L.Ed.2d 265 satisfy vation remedies did not that a state’s remedies 139,110 cess. Id. at S.Ct. 975. satisfy alone will not if the deprivation from The cast pursu- resulted conduct Court Parratt and Hudson as procedure,” ant to an “established special state cases of the well-known due pro- rather than random and con- unauthorized balancing cess test articulated in Mathews 435-36,102 duct. Id. at S.Ct. 1148. v.Eldridge, 424 U.S. (1976). Zinermon, 494 U.S. at extended to a Hudson 128-30, Mathews, see also

prison guard’s intentional destruction of a (weighing U.S. at 96 S.Ct. 893 prisoner’s property. interest, of an private affected risk recognized The S.Ct. 3194. Court deprivation probable erroneous value underlying rationale of Parratt is “[t]he procedural safeguards, of additional deprivations that when property are interest). government’s In Parratt through effected random and unauthorized Hudson, “postdeprivation tort reme- employee, predepriva- conduct of a state due, are all the simply dies procedures simply ‘impracticable’- tion are they because are the remedies the since the state cannot know when such expected provide”; could be “no State deprivations explained will It occur.” Id. significant private matter how interest can anticipate “[t]he state no more at stake and the risk of its erroneous and control in advance the random and required cannot be deprivation, intentional conduct of its em- State unauthorized constitutionally ployees anticipate negli- impossible than it can similar to do the conduct,” gent process.” rendering predeprivation providing predeprivation Ziner- that “unauthorized” did mon, Court maintained 110 S.Ct. 975 at omitted). prohibited (internal simply mean that state law citations id. at 138 & n. the action. Parrott and Hudson found The Court Instead, the defendants were S.Ct. 975. for “three basic Zinermon inapplicable general in a more sense. The “authorized” First, Id. reasons.” delegated power the broad both not claim the Zinermon defendants could and the state’s liberty accompany- deprive unpredictable; deprivation adequate procedural ing duty would occur “at erroneous words, given Id. protections. other point.” Id. As the specific, predictable “broadly delegated, their uncircumscribed very nature of men- “the explained, Court 136,110 power,” id. hospi- per- it foreseeable that a tal illness makes liberty authority deprive tal had staff might mental health care” be needing son adequate procedural pro- with or without authorizing sign forms admission willing to liberty, depriving tections. But incompetent give informed con- be but duty to accompanying also had the staff Id. 110 S.Ct. 975.. Without sent. constitutionally-required procedur- provide compe- determination some threshold safeguards pro- al could have been might confined tency, person a be such —which for in- by initiating protections vided the safeguards of the procedural without the voluntary already set placement up Id. process. In involuntary placement law. The staff members abused state Hudson, however, the state Parrott and authority by failing their broad to initiate anticipate precisely could not when errone- statutory procedures. See id. at those deprivations would occur. Id. ous contrast, 136, 138, 110 975. the Second, the Zinermon defendants could Parrott and Hudson had employees predeprivation process not claim that was authority no similar broad and no similar Id. at provide. to impossible duty procedural safeguards to initiate the already The state had an estab- S.Ct. 975. occurred. required deprivations before the involuntary procedure place- lished 138,110 Id. at S.Ct. 975. ment, could and the admission statutes hospital staff “to determine have directed the Ziner- stated, Ultimately, the Court competent give a person whether mon “neither an action plaintiffs suit was allowing voluntary consent” before admis- challenging adequacy the facial of a State’s 135, 136-37, Id. at 110 S.Ct. 975. sion. an action statutory procedures, nor based guided the state so limited and Had random and unau- on state officials’ power patients, defendants’ admit of state laws.” Id. at thorized violation reasoned, deprivation might Court in Parrott and S.Ct. 975. Unlike Id. at have been averted. 110 S.Ct. Hudson, in Zinermon deprivation Hudson, Parrott and it 975. But would predictable occurred at a foreseeable and require be “absurd” to process, pre- in the some point admission process, hearing such as a deprivation process pre- could of use in be prison guard a to determine whether venting deprivation alleged, kind of mistakenly intentionally destroy or should deprivation and the occurred the hands Id. property. charged pow- of the state officials with the the Zinermon defendants could er Third, duty to effect the and the Id. safeguards. implement procedural “unautho- not characterize their conduct as Parrott 138-39, rized,” as Parrott and Hudson used that 110 S.Ct. 975. Unlike Hudson, Zinermon present did not Id. 975. The term. random, deprivations unauthorized pro- of the Mathews due instance “special pro- apply analysis property where those cess all that is due.” Id. broadly. analysis cess is more Our convinces us authority line in the the correct under precedent 2. Sixth Circuit former].”). is that of [the Sixth Circuit the Parratt doctrine noted, however, wisely This court has grappled has with precedent own Our process challenges that not all due can be has This court often the Parratt doctrine. easily challenge as a categorized direct sought place procedural a chal- procedure an established state or involving categories: into two “those suits lenge to random and unauthorized conduct. challenge to an established state a direct Mertik, “Specifically, F.2d at it random challenging and “those procedure” necessarily is not the case that a due unauthorized acts.” Mertik v. Blal challenge involving cess to state action not (6th Cir.1993) ock, procedure’ an ‘established state must auto- MJW, Inc., (citing Macene v. F.2d matically come within the Parratt Warren, (6th Cir.1991)); see also governing Hudson rule random and unau- (“Under a precedent, at 709 circuit here, Where, thorized acts.” Id. as prevail can plaintiff claims that the conduct at issue by demonstrating claim was not random and unauthorized but also resulted from ei property deprivation challenge of an adequacy does not (1) procedure ther: an established state procedure, established state we undertake process rights, itself violates due scrutiny” a “careful of the three Zinermon (2) act caus a ‘random and unauthorized’ whether the Parratt factors to determine reme ing a loss for which available state applies. doctrine Id. at 1366-67. adequately compensate dies would not Macene, 951 F.2d at plaintiff.”) (citing procedural a Courts dismiss (con Silberstein, 706); 440 F.3d at 316 provides claim if the state an by a that occurs an trasting deprivation “(1) remedy and adequate postdeprivation a procedure with random established or ‘ran deprivation unpredictable was Par- deprivation). and unauthorized The (2) im dom’; process was operates only doctrine the second ratt (3) the state possible impracticable; or Warren, 411 category of cases. See to take the action actor was not authorized (“The Silberstein, 440 F.3d at 315 at property of or deprived plaintiff requiring rule to show Machulis, 57 F.3d liberty.” Copeland v. inadequacy post-depriva of a state’s curiam) (6th Cir.1995) (citing (per ... proceedings applies corrective tion 136-39, Zinermon, at 494 U.S. complained of only deprivation where the 975). that, in this explained Our court has such that the unpredictable, is random and “ analysis, ‘unauthorized’ means feasibly predepriva state cannot power did not have the question official opin A few Sixth Circuit hearing.”). tion authority deprivation, to effect the not to a applied ions the Parratt doctrine contrary that the act was to law.” War cases, attempts of but these broader set Zinermon, ren, (citing 411 F.3d at 709-10 were rebuked. See Mitchell v. Fankhau Cir.2004) 975); also (6th see ser, 375 F.3d 483-84 (“We Twp. I v. Liber Wedgewood P’ship Ltd. deciding with are therefore faced Cir.2010) Ohio, ty, 610 F.3d on both multiple precedents between of state law do (noting that “violations apply sides—those that First, wrongful depriva deprivation into a defendants’ ‘automatically translate unpredictable tions were or “random” from under the Unit- procedural Zinermon, perspective. ”) the state’s (quoting DePiero ed States Constitution’ Daily 110 S.Ct. 975. Macedonia, City disagrees, arguing depri that the Services (6th Cir.1999)). predictable vations were and not random repeatedly ignored the defendants because the Parratt doctrine Application S. procedures filing judg Ohio’s when case, facts of this specific On the liens, intending ments and and did so applies that the Parratt doctrine we find Daily shut down Services. But as the plead requires out, point viola defendants provide adequate postdepriva Ohio did erroneously varied. The Bureau tions Daily Services tion remedies. Because judgments filed two and two liens without allegation, the de failed to make such notice, erroneously judgment filed one prevail must on their motion for fendants one lien before Services’ administra pleadings. judgment on resolved, voluntarily tive appeal released one and two liens. It complaint explicitly Daily Services’ dis- would be difficult for to predict the state to the any challenge claims constitutionali- varied, precisely when these intentional vi ty predeprivation procedure of Ohio’s olations of state law would occur. Zin Cf. Nevertheless, relying statutes. ermon, 110 S.Ct. 975 355, Daily Wedgewood, 610 F.3d Ser- (noting erroneous argues complaint that its still chal- vices at a “specific, predictable would occur lenges procedure” an “established state point”). This is not a case in which the by alleging repeatedly that the defendants deprivation process here, nature of the — Wedgewood failed to follow Ohio law. filing judgments and liens Bureau em There, support reasoning. does not ployees it foreseeable to the —renders that a township’s the court concluded en- employees state that its would not follow zoning actment instructions constituted state law. id. at Cf. procedure. Wedge- an established state (recognizing very that “the of men nature wood, Here, 610 F.3d at 355. there is no tal makes it that an illness foreseeable” Moreover, legislative Wedgewood action. deprivation liberty erroneous oc could says nothing repeated about how the fail- notwithstanding cur the procedures). already-enacted ure to follow state law Furthermore, instructs, that as Hudson might pro- constitute established state the to defendants intended cause the de Contrary Daily argu- cedure. Services’ Services; Daily privation help does the ment, state procedures” the “established focus of due is on what the state in statutory this case are Ohio’s and ad- 533-34, anticipate. can See 468 at requirements judgments ministrative Nevertheless, specifi 104 S.Ct. 3194. we by and liens obtained the Bureau. cally open question leave whether re violations of the or peated same similar Daily that Services also claims the chal predeprivation procedural rights over lenged acts were not random or unautho “un period of time could be considered carefully analyze rized. We therefore predictable,” point even from the state’s Mertik, Zinermon factors. See 983 F.2d view. at 1366-67. All three Zinermon factors here, Second, im- present predeprivation process are so the Parratt doctrine Zinermon, practicable here. See applies. mon, 136-37, Daily 494 U.S. at 110 S.Ct. 975. Ac 110 S.Ct. 975. Services at already procedures merely tions that violate argues might that Ohio has state law process, there- provide predeprivation that still be “authorized” under the Parratt is by proving practicality. point Warren, 709-10; its This analysis. at F.3d see argument but carries the persuasive Zinermon, 494 U.S. at 138 & n. line. The Zinermon halfway goal to the actions, S.Ct. 975. “Unauthorized” in con procedure identified a in addition Court trast, occur official in question when the already place the state to those power lacks authority the broad to ef to avert the erro- implemented could have Warren, deprivation. fect the 411 F.3d at 135-37, at deprivation. neous See id. Here, presents 709-10. this factor a close (noting that the statutes could S.Ct. Nevertheless, that, call. we think al provided predeprivation additional have though delegated the state has the defen by directing hospital staff “to de- power deprive property by dants the competent is person termine whether liens, see, filing judgments e.g., Ohio voluntary give allowing consent” before 4123.37, Ann. power Rev.Code such admission). question To the what more “broadly delegated” or “uncircum- expected of the the Due Process Clause terms, scribed” as Zinermon used those state, procedure the additional supplied see 494 U.S. 110 S.Ct. 975. The the answer. But Services does not by power is circumscribed Ohio’s detailed additional, identify any proce- practical statutory requirements. and administrative thwart implement dures Ohio could argues the defen wrongful filing judgments and liens. dants’ actions were “authorized” because fact, Daily complaint suggests Services’ they by high-ranking were taken officials defendants, prison guard “like the positions. who abused their But we need Hudson, effecting upon were bent high- not resolve whether acts certain substantive and would have ranking officials should never be consid all despite predeprivation done so unauthorized,” ered “random and as safeguards.” Id. at Second Circuit has held. See Rivera-Pow angle, from another Ohio’s Considered Elections, 470 City ell v. N.Y. Bd. F.3d procedures protect against current do not (2d Cir.2006). But see San Ger specific risk in this case: that Bureau (1st Cir.) (re ónimo, 493-94 employees intentionally disregard will Johnson v. La. jecting proposition); already safeguards (5th Dep’t Agric., 18 F.3d Cir. place. procedures protect Additional 1994) (same); Felder, Easter House v. against impractical this risk are (en banc) Cir.1990) Hudson, vide. (same). Regardless positions, of their Zinermon, cf. not authorized to effect defendants were Powell, 114 at 1082 S.Ct. way in the de deprivations the Zinermon in (denying plaintiffs part the claim be- fendants were. already provides pre- cause “the Protocol deprivation procedures for caseworkers to factors, light In of the three Zinermon “[tjhere follow,” and is no other feasible “postdeprivation tort remedies are all the predeprivation procedure readily that due, simply they that is because us”). apparent to are the could be the remedies State Zinermon,

Third, expected provide.” 494 U.S. the were not “author- defendants 128, 975. The Parratt doc- deprived to take the actions that S.Ct. ized” Daily applies, Ziner- trine therefore and Services’ Daily property. its “unau- fail if that the defendants’ actions were process claims Ohio procedural postdeprivation rem- adequate by Supreme the Court provides thorized” as defined Daily 57 F.3d at 479. edy. Copeland, Burch, 113, 138, in v. 494 U.S. Zinermon allege not complaint does Services’ As 110 S.Ct. 108 L.Ed.2d inade- remedies are Ohio’s result, from respectfully I must dissent Moreover, “[although the state quate. opinion. Part II.C.3 of the lead respondent the remedies Zinermon, delegated State “[t]he may have all the relief which been with power authority [the defendants] under proceeded if he could have available very complained to effect the deprivation that does not mean that the state ..., and also to them the delegated satisfy adequate remedies are not duty procedural concomitant to initiate the Parratt, requirements process.” of due up by guard set law to safeguards state 1908. In other 451 U.S. S.Ct. against unlawful confinement.” Id. The words, Daily why explain Services must distinguished that case from Parratt Court in and to ability to be heard state court Taylor, liens, wrongful judgment vacate the (1981), L.Ed.2d 420 and Hudson v. Palm damages, in is insuffi- even the absence er, remedy cient to the defendants’ (1984), by noting L.Ed.2d 393 A on convincing argument violations. in exist, employees those cases “had no Daily point might but Services has Parratt, Thus, authority deprive prison it. under similar broad not offered a claim complaint Services’ does not state personal property, ers of their and no simi procedural (for for a violation. duty persons lar to initiate unable to interests) protect their own

III. CONCLUSION safeguards required deprivations before court erred when it held The district Zinermon, occur.” uncertainty applicability about the Thus, concluded that Court Parratt entitled the defendants to Zinermon ‘un “[t]he [in was] Nevertheless, immunity. the Par- because only in that it authorized’ the sense apply, ratt doctrine does Ser- law, but, by act not an sanctioned provided has pleaded vices Ohio instead, ‘deprivation] was a of constitu remedies, inadequate postdeprivation Dai- rights tional ... an official’s abuse of ” ly complaint Services’ does not state position.’ (quoting his Id. Monroe constitutional Accordingly, violation. we Pape, 365 U.S. affirm granting the district court’s decision (1961)) (third alteration and defendants’ motion for on result, ellipsis original). As a Zinermon pleadings. claim, plaintiffs due-process allowed the predepriva which focused the denial of MOORE, KAREN NELSON Circuit process, go tion forward. Judge, concurring part dissenting part. The case here is similar to Zinermon. Section 4123.37 of the Ohio Revised Code I agree entirely majority’s with the well- grants power present the Bureau written and explanation well-reasoned Court of Common Pleas clerk with the the relationship between the Parratt and premiums in ar- Bureau’s assessment of However, I qualified-immunity doctrines. rears to cause a to be en- majority’s cannot concur in the ultimate against noncompliant employer. tered ap- conclusion that the Parratt doctrine case, Bureau, plies imposes upon I because do not believe Ohio law also employees, responsibility and its procedural safeguards set forth

follow protect due-process 4123.37 noncompliant employers.

rights of that the failed to fol-

The fact defendants procedures does

low the state-mandated they legally

not mean were not em-

powered deprivations. to effect those As a

result, I would hold that the defendants’ therefore, and,

actions were authorized

that the Parratt doctrine does not apply. proceed

Plaintiff should be able its

claim based on a denial of

process, judg- and defendants’ motion for pleadings on the be

ment should denied. majority ques-

Because the sees this close differently, respectfully

tion I must dis-

sent. America,

UNITED STATES of

Plaintiff-Appellee,

Stacey FIELD, Defendant-Appellant.

No. 13-1538. Appeals,

United Court of States

Sixth Circuit.

Argued: 2014. Jan.

Decided and Filed: June

Case Details

Case Name: Daily Services, LLC v. Tracy Valentino

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jun 26, 2014

Citation: 756 F.3d 893

Docket Number: 13-4157

Court Abbreviation: 6th Cir.