Powers v. Hamilton County Public Defender Commission

systematic Voting violations of the III. CONCLUSION (Id.) however, This, Rights Act.” reasons, we For these DISMISS the entirely challenge pre- new that was never appeal Consequently, Plaintiffs’ as moot. to the district court. The issue sented we also DISMISS the MCRI Defendants’ whether litigated the district cross-appeal moot. as process initiative during petition fraud injunctive can relief serve as basis Voting Rights 2 of the Act

under Section keep a off the proposal ballot. On time,

appeal, and for the the Plain- first attempt

tiffs’ now to advance a Section seeking

claim to invalidate a state consti- sure, tutional amendment. To this is a be POWERS, Plaintiff-Appellee, Michael very challenge pre- different than the one sented to the and in district court v. complaint. Plaintiffs’ Because the Plain- HAMILTON COUNTY PUBLIC present argument tiffs this for the first COMMISSION, DEFENDER et appeal, time on it. decline to address al., Defendants-Appellants. See, e.g., Freight, White Anchor Motor No. 06-3460. Inc., (6th Cir.1990) 899 F.2d (“This court will not decide issues or Appeals, United States Court litigated claims not before the district Sixth Circuit. court.”). Moreover, the Plaintiffs’ decision appeal sought to alter the relief Argued; Jan. 2007. transform cause of action further un- Aug. Decided and Filed: 2007. appeal derscores that their is moot. sum, it because is too late for us to grant request the relief that the Plaintiffs complaint litigated

ed their in the court, any

district that we issue opinion

addressing Voting the merits of the their

Rights Act challenge advisory. would be

See, e.g., Beals, Hall v. 396 U.S. 200, 24 (holding

S.Ct. L.Ed.2d 214

that a case becomes moot whenever it present, its character as a live

“los[es]

controversy of the kind that must exist advisory

we are to avoid opinions on ab law”). Thus, propositions

stract See, appeal e.g.,

Plaintiffs’ is moot. Wein Nostat, Co.,

garten Inc. v. Serv. Merck (6th Cir.2005)

Inc.,

(“[A]n appeal must be dismissed as moot

when, by events, intervening virtue of appeals

court of cannot fashion effective

relief.”). Stevenson,

ARGUED: David Todd Office, County Prosecuting Hamilton Cin- cinnati, Ohio, Appellants. Robert B. for Newman, Co., Newman & Meeks Cincin- nati, Ohio, Appellee. for ON BRIEF: Stevenson, Sears, David Todd Pamela J. Office, County Prosecuting Hamilton Cin- cinnati, Ohio, Appellants. Robert B. for Newman, Co., Newman & Meeks Cincin- Cincinnati, Felson, suspended Ohio, incarceration. twen- nati, Stephen R. Ohio, ty-seven days of those and ordered Powers Appellee. remaining days to serve the three CLAY, COLE, NORRIS, Before: The court program. driver-intervention Judges. Circuit pay further ordered fine Powers $250 and court costs. COLE, J., opinion delivered CLAY, J., court, joined. in which later, Two months on March NORRIS, 619-20), delivered a (p. J. violating pro- Powers was arrested for dissenting opinion. separate by, among things, failing bation other pay again the court-ordered fine. He OPINION pleaded guilty. no and was found contest COLE, JR., Judge. R. GUY Circuit probation The court terminated Powers’s original reinstated his sentence of thir- Hamilton Coun- Defendants-Appellants (the incarceration, ty days “Public ty Public Defender Office minus credit Office”) County Defender Hamilton day alleges one served. Powers that he (the “Public Public Defender Commission day served at least one the Hamilton Commission”) (collectively, Defender the County jail pay for his failure to the fine. Defender”) judgment appeal “Public At argument, oral the Public Defender class certifi- granting of the district court spent portion conceded Powers some Plain- summary judgment cation and exclusively in con- of his time behind bars Ham- Michael Powers. The tiff-Appellee unpaid nection with the fine. County municipal court ordered ilton Attorneys with the Public Defender Of- with a a fine connection represented fice Powers at both his Janu- Powers was sub- reckless-driving charge. ary sentencing and for the reckless- plea non-payment of sequently incarcerated hearing and at driving charge, the March § 1983 class that fine. He then filed this probation which his was revoked. Powers action, alleging that his constitutional indigen- he of an alleges deprived that was were violated the Public De- rights Public Defender cy hearing because the failing of to policy fender’s or custom policy failing request a or custom of has of indigency hearings on behalf seek jail clients face hearings such when its facing jail criminal defendants time for nonpayment of court-ordered time unpaid fines. fines. below, we For the reasons set forth 21, 2002, Powers filed a August On ruling AFFIRM the district court’s damages complaint seeking class-action cognizable, 1983 claims are Powers’s theory 1983 on the under U.S.C. certification. grant AFFIRM the of class incarceration, any in absence of his grant court’s REVERSE the district We ability pay the court- inquiry into his and RE- summary judgment to Powers fine, Fifth, Sixth, his imposed violated proceedings. MAND for further rights. Powers Amendment Fourteenth I. BACKGROUND claim. In legal-malpractice a also asserted Powers named as original complaint, his no January pleaded Powers On Office; Defender defendants the Public County, Ohio munici- contest Hamilton Commission; and Si- the Public Defender operation a of reckless pal charge court to Jr., Leis, Hamilton L. the Sheriff of mon vehicle, fourth-degree a misde- of a motor (the “Sheriff’). 2003, 4, County On June convicted on the meanor. Powers was complaint to add as amended his thirty days of Powers day same and sentenced (the County facili- County “Coun- of a Hamilton correctional defendants Hamilton County’s ty by County municipal Board of Com- a Hamilton ty”) and Hamilton (the 21, “Board of Commission- pleas August missioners common court from ers”). present satisfaction of a costs, including per- fine court and/or on for class certification moved a probation following sons who violated moved for 2003. Defendants August “stay pay” sentence. on November 2003. summary judgment (Final 1.) on hearing court held a both The district Judgment Order at joint August motions and issued order Powers subsequently brought his own 2033696. The district 2005 WL partial summary motion for judgment on granted partial court the Defendants sum- liability, arguing rejec- that “the [c]ourt’s Sheriff, mary by dismissing the judgment [summary-judgment] tion of Defendants’ County, and the Board of Commission- clearly liability motion establishes dismissing legal- and further Powers’s ers (Order favor and in favor of the class.” claim. The malpractice district de- Summary Powers’s Motion For Partial [On grant summary judgment clined to as to 2.) Judgment] grant- The district court the Public Defender Office and the Public ed though Powers’s motion. Even rejected The court Defender Commission. Public Defender submitted additional evi- argument that these Defendants’ Powers’s negate dence to the existence the al- cognizable. 1983 claims are not leged policy failing request or custom of court further concluded the evidence indigency hearings, the district court con- that the Public Defender “had established showing cluded that the Public Defender’s policy well-settled custom or not ask- genuine was insufficient to raise a issue of ing indigency hearing pro- for an before a material fact. bationer is incarcerated for failure to Finally, approved the district court fine,” the Public Defender was a content and dissemination of the class no- (Dis- purposes state actor for 1983. form, tice and claim stipu- to be sent to a trict Court’s Order Plaintiffs Motion [On lated list of class members via United For Class Certification And Defendants’ States mail and Summary Judgment] published Motion For at 13- the Cincinna- 14.) ti Enquirer. approved The court further damage a equal per day award $100 disposing After of the Public Defender’s day each of a class member’s incarceration. summary judgment, motion for the district stayed judgment pend- The court then its grant court went on to Powers’s class- ing the resolution of the Public Defender’s certification motion. The court concluded appeal. prerequi- Powers had all the satisfied sites of Federal Rule of Procedure Civil II. DISCUSSION 23(a) proper and that certification was un- 23(b)(3) The Public Defender asserts that der Rule because Powers’s case respects. district court erred in several presents questions of law or fact common First, predominate ques- argues the class that over Public Defender that the affecting only obligated tions individual class mem- district court was to dismiss Although periodically § bers. the court tink- 1983 suit Powers’s as barred definition, ultimately ered with the it class Supreme holding in Court’s Heck v. Hum- certified a consisting class 2364, 512 114 phrey, U.S. S.Ct. 129 (1994). who, Second, L.Ed.2d persons indigency without an 383 the Public

[a]ll hearing, custody proper balancing were committed to the Defender contends that a

599 relationship between state and fed- viction or sentence cannot be maintained Younger eral courts as embodied unless the conviction or sentence has been doctrine and the Rooker-Feld- abstention invalidated. 512 U.S. § precludes

man doctrine Powers’s (1994). L.Ed.2d Because the mu- Third, argues claims. the Public Defender nicipal never court set aside Powers’s con- in granting the district court erred sentence, viction and the Public Defender (1) summary judgment to Powers because argues proceed that Powers cannot on his deprivation it cause the did not Powers’s § 1983 suit. (2) it rights, pur- is not state actor for responds Powers poses Heck no poses of the evidence First, obstacle to his case for two reasons. disputed question showed at least a of fact argues that Heck inapplicable is alleged of its policy as to existence who, himself, § 1983 claimants like were failing indigency custom of to seek hear- precluded challenging legality from jail ings for clients threatened with time their convictions and sentences through non-payment Finally, for the of fines. Second, federal habeas action. Powers ar- Public Defender contends the district gues that his case fits within an exception certifying erred class. challenges Heck because he the flawed begin by considering We whether Pow- procedures used to incarcerate him—that ers even maintain his 1983 action is, inquiry the lack of an into ability his and then move on to consider whether he pay the court-ordered fine—and not his summary judgment is entitled to and class underlying conviction for reckless driving certification. jail or his sentence. Powers contends that procedural analytically attack is dis- A. Standard of Review tinct an municipal attack on the review the district grant We court’s judgment. court’s summary judgment novo. de Watkins v. Creek, (6th Battle F.3d Cir. 1. Heck’s Favorable-Termination Re- 2001). Summary judgment appropriate is quirement where the record shows that “there is no genuine any liability issue as to material fact and Section tort 1983 establishes moving party is entitled to a deprivation rights by per- of federal judgment as a matter of law.” Fed. acting sons under color of state law. 56(c). “Summary judgment ap R.Civ.P. (2007). Heck, U.S.C. the Su- propriate party if a who has the burden of preme Court addressed whether proof showing trial fails to make a suffi prison Indiana inmate could maintain a cient to establish the existence of an ele alleged 1983 suit in which he that the party’s ment that is to that essential case.” (the prosecuting attorney defendants County, Beecham v. 422 Henderson F.3d investigator) an Indiana State Police vio- (6th Cir.2005). 372, 374 by lated rights his constitutional conduct- an ing illegal investigation leading to his Cogni- § B. 1983 Are Powers’s Claims arrest, evidence, destroying exculpatory zable using illegal an voice-identification argues The Public Defender that 478-79, at his trial. 512 U.S. at procedure holding court erred in district that Pow- 114 S.Ct. 2364. § cognizable. Citing ers’s 1983 claims are analogized Supreme Court Humphrey, Heck v. the Public Defender § Heck’s 1983 claim to a tort claim for § damages contends that a 1983 action in an Id. at 114 allegedly prosecution. connection with unlawful con- malicious 600 An of a malicious- strate that the conviction or sentence

S.Ct. 2364. element already has been invalidated. showing that prosecution claim is proceed- criminal plaintiff prevailed 487, 114 at Id. S.Ct. 2364. malicious-prosecu- ing gave rise Souter, joined by Justice three of his The Court noted that this tion lawsuit. colleagues, separate wrote a concurrence requirement” pro- Heck, “favorable-termination expressed in which he the view against judg- of inconsistent requirement tects the risk the favorable-termination § preclude by per- does not 1983 lawsuits on criminal ments collateral attacks who could not have their convictions sons engender. convictions could otherwise Id. impugned through or sentences habeas re- 484-85, Accordingly, at 114 S.Ct. 2364. petitioners may view. Because obtain ha- that a Supreme Court held 1983 only if “in they custody,” beas relief are un- damages action in connection with an persons Justice Souter noted that “who will not lie lawful conviction or sentence fined, merely example, were or who claimant, malicious-prose- unless the like a completed imprison- have short terms of plaintiff, underly- cution can show that the ment, parole, or or who discover probation, ing or sentence has invali- conviction been own) (through no fault of their a constitu- dated: full expiration tional violation after of their damages allegedly recover un- [T]o prohibited bringing sentences” are imprison- constitutional conviction or challenge habeas actions to their convic- ment, tions or sentences. Id. at 114 or for other harm caused S.Ct. ac- argued 2364. Justice Souter that applying tions whose unlawfulness would render a Heck’s, favorable-termination requirement invalid, §a conviction or sentence 1983 §to 1983 claimants in these circumstances prove must that the conviction altogether deny- would have the effect of or sentence has been reversed on direct ing them a federal forum alleged for the order, appeal, expunged by executive de- deprivation of their rights. federal He by a clared invalid state tribunal author- imper- reasoned such outcome was determination, ized to make such First, applying missible for two reasons. question called into a federal court’s requirement favorable-termination corpus. issuance of a writ of habeas prohibited claimants from seeking habeas 486-87, Moreover, Id. at relief S.Ct. 2364. is inconsistent with broad construc- tion of 1983 and the statute’s purpose Supreme instructed that Court even “ ‘interposing] the federal courts between plaintiff challenges something other people, guardians the States and the as sentence, than his conviction or where ” people’s rights.’ federal Id. ruling “necessarily in his favor would im- Foster, (quoting S.Ct. 2364 Mitchum v. ply invalidity of his conviction or sen- 225, 242, 407 U.S. tence,” require- the favorable-termination (1972)); L.Ed.2d 705 accord Dennis v. ment applies: Higgins, 498 U.S. S.Ct. prisoner damages a state seeks [W]hen (stating L.Ed.2d 969 suit, in a the district court must “provides remedy, broadly to be judgment consider whether a in favor of construed, against all forms of official vio- plaintiff necessarily would imply the federally protected rights”). lation of Sec- sentence; invalidity of his conviction or ond, argued Justice Souter that absent if it would the complaint must be dis- direction,” “unambiguous Congressional plaintiff Supreme authority” missed unless the can demon- Court “lacks the deny §a challenge 1983 cause action those could not his conviction through pursue not who could habeas relief. Id. a proceeding, habeas and therefore he § free to bring “[was] 1983 action.” Id. Kemna, Souter, Spencer Justice concurrence, in again reiterated his conclu- 2. Heck Inapplicable Is Because Pow- that sion Heck’s favorable-termination re- ers Was Foreclosed Challeng- quirement inapplicable persons is those ing his Incarceration in a Habeas prevented from it satisfying “as a matter Action 1, 21, of law.” 523 U.S. 118 S.Ct. (1998). habeas, Spencer L.Ed.2d 43 was a Drawing on Justice Souter’s Heck 1983, case, §a Supreme which the Spencer pronouncements, Powers ar held Spencer’s petition Court habeas gues the favorable-termination re moot completed because he had his quirement inapplicable is to his claims be 17-18, term of incarceration. Id. 118 cause he has been prison. released from Spencer argued S.Ct. 978. that the Court matter, As an initial Powers misstates the petition could not dismiss his on mootness nature of the Heck limitation that Justice because, grounds adjudica- absent a merits Souter has theorized. dispositive What is tion, he satisfy could not Heck’s favorable- in Powers’s situation is not that he is no requirement, termination and therefore incarcerated, longer but his term of § be bringing would barred from day incarceration —one too short to —was challenge to alleged deprivation of his him enable to seek habeas relief. It seems rights. constitutional Id. at 118 S.Ct. unlikely that Justice Souter intended to 978. carve out a exception broad Heck for all rejected The Court Spencer’s argument. former prisoners. The reading better Nonetheless, majority of the Court analysis § is that a plaintiff agreed with Justice Souter’s view that the entitled to a Heck exception plaintiff Spencer’s dismissal of petition habeas on was precluded “as a matter of law” from grounds mootness Spenc did not eliminate redress, seeking habeas but not entitled to right er’s to seek 1983 relief. Justices such an exception if the could O’Connor, Ginsburg, Breyer joined sought have and obtained habeas review Stevens, Souter’s concurrence and Justice prison while still in but failed to do so. dissent, clear, perfectly stated that “it is See, Gates, e.g., Guerrero v. explains, as Justice Souter [Spenc that he (9th Cir.2006) (holding plain may bring an action er] under 1983.” tiff could not “now use timely his failure 18, 25, 978; Id. at n. 118 S.Ct. see also pursue against habeas remedies as a shield —Kato, U.S. -, Wallace v. Heck”) (internal implications quota (Ste 166 L.Ed.2d 973 omitted). tion marks

vens, concurring) (stating J. that “because date, we, To neither the Supreme nor remedy a habeas was never available Court, conclusively have resolved whether [petitioner] in the first place,” Heck did not Spencer should be limiting construed as postpone petitioner’s § the accrual of claim). reach of Heck such that a Justice Souter went so far as to claimant excepted Powers’s shoes is concede that if the Spencer’s dismissal of require- from the favorable-termination petition actually foreclosed a 1983 dam action, Cunigan, ment. In Shamaeizadeh v. ages Spencer would be correct in “clearly claiming Spencer that dismissal would stated excludes from improper. be Spencer, requirement 523 U.S. at Heck’s favorable termination 118 S.Ct. 978. But, Spencer’s argument prisoners longer custody.” failed because he former no 602 Cir.1999). First (6th requirement,” the Cir In termination’ 391, n. 3 F.3d 396

182 apply it to Stine, that was bound acknowl cuit reasoned contrast, v. Huey in if that “even Supreme precedent, Court uncertainty Spenc generated edged the by pro appears still er, precedent that Heck was weakened nonetheless held but (an inmate) decisions,” subsequent in its plaintiff nouncements controlling where challenge only Supreme to his Court has the bring not habeas because could because own decisions. disciplinary authority detention to overrule its thirty-day 226, Felton, F.3d expired. Agostini 230 v. 521 (citing had at 81 n. 3 the detention Id. Cir.2000). (6th v. 203, 1997, In Muhamma 117 138 L.Ed.2d 391 230 d S.Ct. U.S. Close, however, Redmann, re Supreme Court (1997)); v. 485 see also Entzi Cir.2007) ease is (8th Huey (declining “[t]his and stated to versed F.3d 1003 of whether the issue” no occasion to settle prisoner to allow a former Spencer read Heck’s, requirement favorable-termination grounds on the maintain his 1983 action are habeas plaintiffs §to who applies 1983 Heck not differentiate between did 749, 124 S.Ct. ineligible. 540 U.S. habeas-ineligible former and prisoners (2004). L.Ed.2d 32 applying the fa purposes for prisoners Supreme and no vorable-termination rule definitively yet Although we have “explicitly overrule[d]” decision had Court Heck interplay in between weighed Davis, Heck); 427 F.3d 209- Gilles v. circuits are divided Spencer, our sister (3d Cir.2005) (declining recognize circuits, including question. on the Four habeas-ineligible exception for Heck Fifth, First, Third, Eighth Cir- that the court had grounds on the plaintiff cuits, analy- rejected Souter’s have Justice authority Heck’s “continued question no and instead have held sis Johnson, 227 v. F.3d validity”); Randell favor- with Heck’s comply claimants must Cir.2000) (5th (declining to 301-02 requirement even habe- able-termination §a recognize exception a Heck for to them. These as relief was unavailable imprisoned longer who was no recognize that to an courts have reasoned of a lower prerogative it is not the because along the lines sketched exception to Heck for the Su federal court to “announce an amount by Justice Souter would it overruled one of preme Court that has Supreme from impermissible deviation decisions”). its precedent. Court reasoning of our disagree We with Rivera, Figueroa example, them- circuits who decreed sister have action on be- brought a appellants by Heck to the exclusion selves bound Rios, murderer, who half of a convicted Heck and comments his (1st Justice Souter’s prison. had died have concurrences. These courts Spencer Cir.1998). petition filed a habeas Rios had ordinary rule refinement mistaken but the district in federal district court necessarily engage courts appellate following it moot his court dismissed as binding improper departure The First Circuit death. Id. at 79-80. Heck precedent. The Supreme Court attempting acknowledged that Rios “was with a factual was not confronted Court inter- impugn his when death conviction Powers’s, in which the scenario like vened,” it determined but nonetheless in habeas and has no recourse claimant § 1983 suit appellants’ Heck barred the sen- have conviction or thus cannot had not been set because Rios’s conviction by a court. The set aside federal tence Id. at 80-81. prior proceeding. aside in a incarcerated plaintiff Heck still “may east doubt though Spencer Even Thus, relief. sought could have habeas so universality of Heck’s ‘favorable upon

603 one, adopting imprisoned Justice Souter’s rationale does for at least but not more a failure to follow not amount to Heck thirty, than days for his failure to binding guidance offered no where Heck circumstances, fine. Under these there is application on the of the favorable-termi- way no that Powers could have obtained requirement nation to the circumstances habeas review of his incarceration. This is Moreover, only way here. to side with precisely the kind of situation that Justice those circuits have enforced the favor- Souter had in mind argued when he requirement against able-termination ha- Spencer Heck and that the favorable-ter- beas-ineligible plaintiffs altogether ig- is to mination requirement could not be de- (four Spencer, justices nore in which five ployed to foreclose federal review of as- dissent) in concurrence and one in agreed deprivations serted rights by federal that Heck did not extend that far. Cast- habeas-ineligible plaintiffs. Accordingly, ing Spencer something aside is we decline Second, join Ninth, and Eleventh to do. in holding Circuits that the favorable-ter- persuaded by We are logic those requirement mination poses impedi- no circuits have held that Heck's favor- § ment to Powers’s 1983 claims. requirement able-termination cannot be imposed against plaintiffs § 1983 who lack Inapplicable 3. Heck Is Because Pow- option a habeas for the vindication of their Challenges ers the Procedures that rights. analogous federal Most to Pow- Incarceration, Led to his and not Eyck, ers’s case is Leather v. Ten in which Underlying his Conviction or the the Second Circuit concluded that Duration his Sentence plaintiffs proceed 1983 suit could de- being exempt Besides from Heck’s fa- spite noncompliance with the favorable- requirement vorable-termination because termination requirement because relief, he could not have obtained habeas plaintiff had only been assessed a mone- we hold that Powers is exempt for a sec- tary fine in criminal proceeding his ond reason. agree We with the district ineligible thus was for habeas relief. 180 court’s conclusion that Powers need not (2d Cir.1999). F.3d The Ninth comply with the favorable-termination re- and Eleventh Circuits also have dispensed quirement alleges because he that his con- with the require- favorable-termination rights stitutional were violated as a result ment where habeas is unavailable. See improper procedures, not that un- Small, Nonnette v. 316 F.3d 875-77 derlying jail conviction or sentence was (9th Cir.2002) (declining apply the favor- Heck, improper. following two cases requirement able-termination where the Supreme distinguished Court between plaintiff pursue could not habeas relief be- challenges judgments jail); cause he had been released from challenges procedures Pataki, Harden v. 1298-99 led (11th Cir.2003) judgments. to those (declining apply the fa- requirement vorable-termination where Balisok, In Edwards v. Edwards was a plaintiff pursue could not habeas relief prison state inmate filed a who challenge procedures extradition be- on the grounds procedures action already cause the had been extra- prison disciplinary hearing used in a de- dited). prived due-process rights him of his be- hearing improperly officer was These cause Circuits have the better-rea against soned view. Powers was fined for his biased him. 520 U.S. (1997). reckless-driving misdemeanor and then L.Ed.2d 906 S.Ct. alleged that plaintiffs 125 S.Ct. 1242. The “pos- claim as Edwards’s Court described wrong, were violated the Constitu- procedures procedures the these iting] that necessarily that the result was.” Ex Facto and Due Process but not tion’s Post Moreover, 645, the 1584. 76-77, Id. at S.Ct. at 125 S.Ct. 1242. Clauses. Id. that distinction be- “[t]he Court stated held that the suits Supreme The Court clearly of claims is tween these two sorts prison- in if proceed part could because the in case law....” Id. established our successful, they were would be entitled ers approved of an an- Although the Court hearings at which con- only parole to new that remove alytical would framework stitutionally procedures would be proper Heck’s, challenges from procedure-based (the declaratory and prisoners sought used ambit, concluded that Ed- it nonetheless relief, 82, damages). Id. at injunctive cognizable. claim was not The wards’s 1242. did not “necessar- 125 S.Ct. Success in prevailed that if Edwards Court held ily imply invalidity the of their convictions that the hear- proving §his 1983 suit sentences,” matter, that the or for him, ing against was indeed officer biased judgment declining to re- parole board’s implicitly negate an such outcome would lease them. Id. judgment disciplinary proceed- in the establish that Balisok Wilkinson ing, even if there otherwise was sufficient comply need not with Heck’s favor- support judgment. evidence to Id. prevail To requirement. able-termination 647, 117 S.Ct. 1584. .This was true be- suit, in his Powers must show tried cause criminal “[a] defendant indigency hearing he was not afforded partial judge is entitled to have his con- right to which he had a constitutional be- aside, strong no matter viction set how jail. If being fore committed to he suc- Thus, him.” against the evidence Id. Bal- ceeds, resulting judgment his favor courts to'scrutinize “the na- isok cautions way impugn would in no his conviction for challenge proceedings” ture of the driving. A conclusion that reckless challenges procedures because even the lack of procedures, proce- or rather necessarily imply “could be such as dures, that culminated in Powers’s incar- 645, invalidity judgment.” of the Id. at rights ceration violated his constitutional 117 S.Ct. 1584. nothing propriety has to do with the of his Dotson, v. the Supreme Wilkinson Indeed, only underlying conviction. judgment the en banc Court affirmed proceedings criminal aspect of Powers’s Court, giving green light to two this possibly regarded could be as vulnera- challenging parole-hearing 1983 cases judgment invalidity ble to collateral procedures. 544 U.S. 125 S.Ct. sending Pow- municipal court’s order (2005). plaintiffs 161 L.Ed.2d 253 jail non-payment ers to of the fine. serving Wilkinson were two Ohio inmates here, however, Even if Powers succeeds 76( lengthy jail sentences.' Id. at 125 S.Ct. suit, only §his that means that the parole 1242. Both were denied on the grant indigency failure to Powers an hear- parole guidelines argued basis of 1998 but ing wrongful, was not that the order com- guidelines year in effect in the jail wrongful. him mitting was See they which were convicted should have Brown, McKithen v. 481 F.3d 102-03 76-77, been used instead. Id. at (2d Cir.2007) (holding that the favorable- plaintiff argued 1242. One further requirement termination did not bar pres- there were too few board members seeking testing § 1983 action DNA of evi- hearing ent at that he parole his prevailed opportunity speak. denied an Id. at dence because claims, he would be entitled ing guilt or innocence person extra- only production of the evidence for test 1297; dited.” Id. at see Weilburg also v. course, ing, testing, ‘neces “[s]uch (9th Cir.2007) Shapiro, 488 F.3d 1202 sarily implies nothing at all about the (holding that plaintiffs because the allega- ”) plaintiffs (quoting Harvey conviction’ challenging tions procedures used to Horan, (4th Cir.2002)); extradite him from Arizona to Illinois Burton, see also Ballard v. 444 F.3d 391 conviction, would not affect his underlying (5th Cir.2006) (holding that the favorable- apply). Heck did not The same rationale requirement termination did not bar a applies to Powers’s situation. The Public § claim for excessive force because alleged practice Defender’s request- of not conclusion that the defendant’s use of force ing indigency hearings has bearing no objectively was unreasonable would not guilt Powers’s or innocence in failing to necessarily question call into plaintiffs pay his court-ordered fine. assault). criminal conviction for Powers’s Accordingly, we hold that because Pow- “necessarily incarceration is not invalid” challenges ers the procedures that led to willfully because Powers have refused his incarceration and not the incarceration a fine capable paying, he was itself, Powers need not comply with the having rather than actually impecuni been favorable-termination requirement. ous. Nelson v. Campbell, 541 U.S. 2117, 158 L.Ed.2d 924 C. Powers’s Action is not (“[W]e were in careful Heck to stress Younger Barred Abstention importance ‘necessarily.’”). of the term Doctrine or the Rooker-Feldman we guess precisely This cannot because Doctrine get Powers did not an indigency hearing. argues The Public Defender that consid-

Decisions from other holding Circuits of comity erations require dismissal of that Heck challenges does bar Powers’s 1983 claims. Invoking to extradition procedures support Powers’s Harden, position. Younger abstention doctrine and the Rook- example, the plaintiff argued doctrine, that he was extradited er-Feldman the Public Defender Georgia to New York violation of says that allowing pro- Powers’s case to due-process rights because he was de- ceed will upset proper relationship be- pre-extradition nied a hearing. habeas tween the by per- federal and state courts Harden, 320 F.3d at 1292. In addition to mitting undue federal intrusiveness into concluding that the favorable-termination the final judgments of a state court. The requirement apply did not because Harden wrong. Public Defender is prevented was from seeking habeas relief Younger abstention doctrine (the occurred), already extradition had prevents “stay[ing] federal courts from or Eleventh Circuit held that “Heck does not enjoin[ing] pending state court proceed purely procedural bar brought claims un- ings except special under circumstances.” der 1983.” Id. at 1295. Harden’s Harris, Younger v. 401 U.S. procedural claims were in nature because (1971). Younger S.Ct. 27 L.Ed.2d 669 if he succeeded in proving that the extradi- only play comes require into when three unconstitutional, tion procedures were satisfied, including ments are that there is did not mean his conviction sentence “on-going judicial proceeding[ state ]” for the crime for which he was extradited running parallel to the federal action. were procedures, invalid: “[E]xtradition (6th Squire Coughlan, v. they rights, even violate federal no have Cir.2006). bearing, Here, direct implied, underly- proceedings on the Powers’s injured federal claim that he long pendent since concluded court have the state competing pending filing action the defendant’s of a false affidavit and he has no abstention doctrine Younger proceeding). there. The in the state-court there are inapplicable because therefore reasons, reject the Public For these in the state courts for the proceedings no Younger Defender’s and Rooker-Feldman to defer to. federal courts arguments. par doctrine bars The Rooker-Feldman D. The District Erred in Court Grant- filing court from

ties that have lost state ing Summary Judgment for Powers pur courts for the suit in federal district review of the adverse pose obtaining section, In this we consider whether Fidelity judgments. state-court Rooker summary judgment Powers is entitled to Co., 413, 44 S.Ct. Trust 263 U.S. light requirements for establish- (1923); Appeals Court v. L.Ed. 362 D.C. of ing municipal-liability a 1983 claim. We Feldman, 462, 1303, 460 U.S. 103 S.Ct. (1) agree alleged with Powers that he has (1983); v. L.Ed.2d 206 Johnson DeGran by right protected a violation of a the 997, 1005-06, 2647, dy, 512 114 S.Ct. U.S. (2) Constitution, that the Public Defender (1994) (Rooker-Feldman L.Ed.2d 775 (3) violation, alleged caused the prevents party an unsuccessful state-court the Public Defender acted under color of seeking what in substance would be “from However, in doing state law so. we re- appellate judgment review of the state a grant verse and remand the court district’s court, on United States district based the summary judgment of because we con- losing party’s judg claim that the state that, assuming clude even has car- Powers ment itself violates the loser’s federal evidentiary respect ried his burden with rights”). showing that a Public Defender has The Rooker-Feldman doctrine policy failing request or custom of indi- bearing no claims has Powers’s because gency hearings, the Public Defender has allege deprived he does not that he was of genuine question fact raised of material rights by his constitutional the state-court purported policy about the existence of the judgment, by but rather the Public De custom, making summary judgment or failing fender’s conduct in to ask for inappropriate.

indigency hearing prerequisite as a to his 1. Requirements 1983 Mu- injury

incarceration. Assertions of that do of nicipal-Liability Claim implicate judgments not state-court are beyond purview of the Rooker-Feld imposes liability against Section 1983 man doctrine. See McCormick v. Braver who, [e]very person any under color of man, (6th Cir.2006) 451 F.3d 392-93 statute, ordinance, custom, regulation, or (holding inapplicable Rooker-Feldman be any of usage, Territory State or or the plaintiff cause the did not attack the state- Columbia, subjects, of District or causes judgments court indepen but “assert[ed] subjected, any to be citizen of the Unit- judg dent claims that those state court person ed or other within the States by” ments were [improperly] procured jurisdiction deprivation thereof to the of defendants); Weltman, Weinberg, Todd v. any rights, privileges, or immunities se- Co., L.P.A., & Reis 434 F.3d 436-37 cured the Constitution and laws.... (6th Cir.2006) (holding Rooker-Feldman 42 U.S.C. 1983. triggered plaintiff because the did not in a two- allege injured by engage[ “[We] that he was the state- ] judgment, pronged inquiry considering but instead filed an inde- when a mu- (1) nieipal-liability claim.” Cash v. Hamilton plaintiff prove must the existence of a Prob., County Dep’t Adult persistent F.3d clear and pattern violating (6th Cir.2004). (in We first ask whether case, federal rights this failing to re- plaintiff deprivation has (2) asserted of quest indigency hearings); notice or guaranteed by right Constitution or constructive notice on part of defen- Id.; Irving, dants; (3) federal law. Alkire v. the defendants’ tacit approval of (6th Cir.2003). Second, F.3d conduct, the unconstitutional such that analyze alleged deprivation whether their deliberate indifference in failing to acting was caused the defendants under act can be said to amount to an official Cash, 542; color of state law. 388 F.3d at inaction; policy of that the defen- Alkire, 330 F.3d at 813. force,” dants’ custom was the “moving direct causal for the constitutional link de- A municipality cannot be liable Doe, privation. 508; see also employ the constitutional torts of its City Thomas v. Chattanooga, 398 F.3d ees; is, it cannot be liable on a re- (6th Cir.2005) 426, 429 (applying Doe fac- spondeat superior theory. Dep’t Monell v. tors where the plaintiff alleged that Servs., Soc. 436 U.S. Chattanooga police department had a cus- (1978). Rather, 56 L.Ed.2d 611 lia tolerating tom of the use of excessive force bility only will attach where against suspects); detained Garretson establishes that the municipality engaged City Heights, 789, Madison 407 F.3d of “policy in a or custom” that was the “mov (6th Cir.2005) 796 (applying Doe factors ing force” deprivation behind the plaintiff alleged where the city that the 694, 2018; plaintiffs rights. Id. at 98 S.Ct. had a custom of failing provide to medical see also Doe v. County, Claiborne 103 F.3d detainees). pre-arraignment treatment to Cir.1996) (“Under 495, (6th Monell, 507 the [defendants] cannot be found liable 2. Depriva- Powers Has Asserted the plaintiff unless the can that establish an tion Right a Federal of officially policy, executed or the toleration alleges that the Public De to, causes, of a custom ... leads or results request fender’s failure to an inquiry into deprivation of a constitutionally pro ability pay his to the court-ordered fine right.”). tected jailed Fifth, before he was violated his The Monell Court described a Sixth, and rights. Fourteenth Amendment municipal policy as “a including policy § Under the first of a prong 1983 munici statement, ordinance, regulation, or deci claim, pal-liability we must evaluate wheth officially adopted sion promulgat rights federally protected er these are 690, ed....” 436 U.S. at 98 2018. An S.Ct. that, proven, § such provide 1983 will “custom,” contrast, actionable “has not Doe, infringement. relief for their See 103 received formal ... approval through offi (stating F.3d at 506 that the Court’s task decisionmaking cial channels.” Id. at 690- right was the nature of the “examin[e] 91, 98 A plaintiff may S.Ct. 2018. 1983 infringed upon”—the claimed to have been establish the existence of a custom right be free from sexual abuse at the showing policymaking officials knew of a hands state actor—to determine acquiesced practice about at whether it was embodied the Four Local, Memphis, issue. Tenn. Area Am. Amendment); Cash, teenth 388 F.3d at City Memphis, Postal Workers Union v. (commenting 542 can be little “[t]here (6th Cir.2004). 898, 902 persons doubt” that the homeless municipal-liability constitutionally protected right Where claim had a premised theory,” personal belongings, is on an “inaction which tak- their were alleged de “moving force” behind the pursuant municipal to a and discarded en Monell, rights. privation of his federal program). bottom, 2018. At 436 U.S. at 98 S.Ct. dispute does not The Public Defender inquiry, requiring this is a causation prong the first that Powers has satisfied it the defen plaintiff to show liability, nor can it: establishing policy custom or led to the dant’s Supreme Court Georgia, v. Bearden complained injury. Memphis v. Garner “impose a fine as that a state held (6th F.3d 363-64 Cir. Dept., Police automatically convert a sentence and then 1993). solely the defen jail into a term because it pay cannot forthwith indigent dant Traditional tort of causa concepts the fine in full.” 461 U.S. inquiry on a tion inform causation (1983). 76 L.Ed.2d S.Ct. McKinley City claim. Mans that “fun Bearden went on to hold Court Cir.2005). (6th field, 404 F.3d a court to in requires damental fairness” Thus, we must consider whether the Public a criminal defendant is quire into whether request indigency Defender’s failure to an at pay a fine. Id. able in fact and the hearing was both cause Alkire, 2064; 330 F.3d at 816-17 see also of the denial of Powers’s proximate cause that a criminal (citing holding Bearden and indigency hearing prior to his right to right judicial inquiry to a into defendant’s unpaid incarceration fine. ability is well established pay fine Amendment). has by the Fourteenth Ohio (a) in Fact Cause requirement this Ohio Revised codified First, concluding have no trouble (“O.R.C.”) 2947.14, provides which Code failure to act Public Defender’s ability hearing that a as to the offender’s injury. in fact of was the cause Powers’s at the the fine shall be conducted typically using in fact is Cause assessed sentencing a court’s con time of and that test, requires the “but for” which us to clusion that the offender is able to imagine whether the harm would have oc- supported by findings be of fact set “shall curred the defendant had behaved other that judgment entry forth in a indicate the ” Robertson, than it did. David W. The income, assets, and debts.... offender’s Fact, Tex. Common Sense Cause in Meyer, App.3d v. 124 Ohio See also State (1997). 1765, L.Rev. 1768-69 “Conduct is (holding that N.E.2d 378 particular the in fact of a result if cause duty hearing trig a the conduct would not have occurred but for result gered until the seeks to enforce the court Similarly, the conduct. if the result would imposition by ordering of a fine the defen have occurred without the conduct com- imprisoned). dant of, a plained such conduct cannot be cause dispute Because there is no that Powers particular fact of that result.” Butler v. deprivation has of a federal asserted (8th Cir.1992). Dowd, 979 F.2d right, question the next more complex Here, “but for” the Public Defender’s is whether Defender caused Public indigency hearing, failure to move for an injury. Powers’s hearing. Powers would have received a Of 3. The Public the “Mov- Was course, Defender we cannot conclude with absolute ing Force’’ Behind the Violation of certainty municipal court would Rights Powers’s Constitutional granted Powers’s motion. Robert- have son, above, (commenting 75 Tex. L.Rev. at 1774

As a described plaintiff showing that the that a of cause in fact does not must show defendant See, proof). Neither can require e.g., mathematical were foreseeable. Kerman v. however, York, (2d that had the Public presume, City New 374 F.3d 126-27 Cir.2004) that the Defender advised Con- (holding that even where it was a jailing stitution forbids the of a defendant hospital’s doctors who decided to admit the judicial on a fíne without determination plaintiff psychiatric observation, ability pay, as to the defendant’s police plaintiff officer who took the ignored the court would have this com- hospital subject was nonetheless liability reasons, mand. For these we conclude under 1983 because it was foreseeable that the Public Defender was the cause plaintiff that the would be detained deprivation rights. fact of the of Powers’s hospital as a result taking of the officer’s there); him Orange County Warner v. (b) Proximate Cause Probation, Dept. 1072-74 question The thornier is whether (2d Cir.1996) (holding that in recommend the Public to act proxi Defender’s failure ing that the be sentenced to an mately injury. caused Powers’s Proximate program alcohol-treatment incorpo cause “is not about causation at all but elements, rated religious probation de appropriate scope responsibil about the partment could be held liable under ity.” Dobbs on Torts 181. Proximate- violating plaintiffs First Amend analysis line-drawing cause is a kind of ment rights, though judge even made the exercise which we ask whether there decision). sentencing any policy practical are reasons that argues that it was reason militate against holding a defendant liable ably jailed foreseeable that he would be though even that defendant is a but-for indigency without an hearing when his plaintiffs injury. cause of the Id. counsel did not move for such a hearing, Supreme Court has stated and that therefore the Public Defender “ § 1983 ‘should against be read proximate injury. was the cause of his background liability of tort that makes a contrast, the Public argues Defender responsible man for the natural conse duty indigency hearing to hold the ” quences Malley of his actions.’ v. exclusively municipal rested with the Briggs, 475 U.S. judge, irrespective quality of the (1986) (quoting 89 L.Ed.2d 271 Monroe representation. There Public Defender’s Pape, 365 U.S. 81 S.Ct. 5 fore, Defender, contends the Public the (1961)). Relying L.Ed.2d 492 on lan this municipal judge “moving was the force” courts have guage, framed the 1983 rights.1 behind the violation of Powers’s proximate-cause question as a matter of reject attempt We the Public Defender’s foreseeability, asking it whether was rea liability by shifting to evade to the munici- sonably complained foreseeable that the pal judge responsibility alleged all for the harm plaintiff would befall the as a infringement rights. of Powers’s As an result of the if defendant’s conduct. Even matter, typically initial courts do not issue party an third intervening is the immedi rulings brought on matters not to their trigger plaintiffs injury, ate for the the liable, by parties, attention the and in in- may proximately defendant still be some stances, provided that the it for party’s improper third actions even be municipal pursuant 1. did not sue the for actions carried out to their offi- judge jailed presumably who ordered him Stump be- Sparkman, cial 435 U.S. duties. any cause (1978). such claim would have been dis- 55 L.Ed.2d 331 judges enjoy immunity missed since absolute misrepresenta- predicated are on the Dep’t v. Ala. to do so. Galvan courts (9th Cir.2005) facts, material on the Corr., or omission of tion hand, (“Courts and, judicial issues not do not decide on the other generally one hand Moreover, busy parties.”). presenta- the a full raised that are made after orders growing lengthy faced with judges, facts, legal- are nonetheless of the but tion dockets, necessarily rely litigants must case, inaccu- In the first the ly erroneous. gov- facts and law present the relevant factual portrayal of the circumstances rate judges are erning disputes liability. subjects defendant to Powers is therefore asked to resolve. case, where the defen- Only the latter the Public right when he contends fully apprised judge dant has indi- about his asserted Defender’s silence facts, misap- judge material but the has reasonably made it foreseeable gency law, shield- will the defendant be plied of his jailed non-payment he would be Two cases illustrate the liability. ed from indigency having received an fine without point. hearing. plaintiff brought father Egervary, recognize that in some circum We (the § counterpart a Bivens action stances, judge may a sever the actions of officials) against against actions federal plaintiffs causation between a the chain of defendants, estranged wife’s attor- See, wrongdoing. injury and a defendant’s neys. plaintiff argued The that the defen- York, 176 F.3d e.g., City Townes v. Newof rights by due-process dants violated his Cir.1999) (2d police (holding au- judge a to enter an order persuading for an could not be held liable officers plaintiffs son thorizing the removal of illegal and seizure because the search plaintiffs where the wife was Hungary, injury proximately caused plaintiffs any hearing living, the absence failing judge’s the trial error could contest the loss of which the evidence). Thus, even suppress the seized custody. Third stated that Circuit it that a defendant’s con is foreseeable here purported misrepresentation “[t]he harm, complained will a duct lead inadequate legal ... is a one and not may be able to avoid defendant of the factual basis representation false intervening ac liability by pointing to the depended.” upon legal ruling which the cause of judge proximate tion of a as the Because the Egervary, 366 F.3d at 249. plaintiffs injury. grown This rule has man- judge not been “misled some had principle tort that “an general out of the facts,” instead ner as to the relevant but which intervening party, act of third legal error for which “the had made person’s after the first [causes harm] judge judge responsi- and the alone was committed, wrongful act has been ble,” the held that Egervary Court prevents which the first superseding cause superseding order constituted a judge’s being though liable person [even causation, that the chain of cause broke person’s first was a substantial conduct] thereby preventing the defendants from harm. bringing Eger factor about” the being held liable. (3d 238, vary Young, v. 246 Cir. 2004) (Second) (citing Restatement of Earle, plain- Similarly, Murray v. (1965)). Torts 440-41 that the brought grounds tiff suit on the Amendment defendants violated her Fifth judicial

To determine whether a act con- her. 405 rights by illegally interrogating cause that relieves a superseding stitutes (5th Cir.2005). 278 The defendants liability, circuits F.3d defendant of our sister liable judicial argued they could not be held distinguished have between orders

611 injury proxi plaintiffs because the was the attention of municipal court. mately by judge’s caused the trial decision Having so, O.R.C. 2947.14. failed to do evidence, to admit her confession into the Public Defender left the municipal interrogation. their unlawful Fifth judge with the misleading impression that agreed. The court Circuit stated that Powers’s financial circumstances did not identified, plaintiff] has not and we “[the investigated need to be prior to incarcerat- found, any have not evidence the record ing him on unpaid hold, fine. We judge presid to indicate that the state who therefore, that the municipal com- court’s (or juvenile ed over her trial failed hear to mitment order did not break the chain of prevented from hearing) was all of the causation. The Public Defender be surrounding interroga relevant facts her held proximate liable as the cause of Pow- deciding tion before to admit her confes injury. ers’s sion into evidence.” at 294. Id. There fore, plaintiffs injury because the was 4. The Public Acted Under Defender caused the trial judge’s erroneous fail Color State Law confession, suppress ure to her the defen The Public argues Defender it is liability, dants were shielded from notwith not a state purposes actor for standing wrongful their own conduct. But 345, Malley, liability, McCollum, 475 U.S. at see Georgia S.Ct. 1092 v. cf. (holding police applied that a officer who 42, 9, U.S. 53 n. 112 S.Ct. for a probable warrant without cause could L.Ed.2d 33 (stating that the “state liability not evade under actor” and “acting under color of state unlawful arrest arguing that it was the same), law” inquiries because, are the un- judge’s issuance of the warrant Dodson, der County Polk 454 U.S. plaintiffs injury, caused the rather than (1981), 70 L.Ed.2d 509 conduct). the officer’s public do not defenders “act under color of Here, no dispute there is that the Public lawyer’s state law when performing a tra- present Defender did not the municipal ditional functions as counsel to defendant judge any with information about Powers’s in a proceeding.” criminal Reasoning that financial status. Without the Public De- requesting indigency hearings among stepping fender forward to alert the court these “traditional to functions”—similar alleged to Powers’s indigency, the court “entering] guilty1 pleas, mov[ing] ‘not way had no knowing indigency was evidence, suppress objecting] State’s germane sentencing issue to its deter- trial, cross-examin[ing] evidence at State’s True, municipal judge mination. had witnesses, mak[ing] closing arguments duty independently ascertain the rele- in behalf of defendants” —the Public De- law, i.e., governing vant know he fender contends that it is immune to liabili- jail could not commit Powers to for non- ty. County, Polk U.S. payment actually of a fine if Powers was S.Ct. 445. indigent. municipal judge But the did not holding The Public Defender reads the an independent duty have to unearth facts County broadly. of Polk too The issue establishing whether Powers was indeed attorney, there was whether an individual indigent. investigation Such a factual employed by county public-defender responsibility It Powers’s counsel. agency, acted under color of state law duty was the Public Defender’s marshal representation her of the defendant. The establishing indigency the facts Powers’s law, Supreme rejected argument that Court the including, under Ohio Powers’s in- come, assets, debts, merely and bring public them to a defender is a state actor inability to jailed as a result of their employee an of the he or she is because plaintiff in fines. Unlike the 319-22, court-ordered 102 S.Ct. 445. More- Id. at state. Powers does not seek to County, Polk that our over, held Supreme Court failures of his on the basis of the recover justice and a law- system of adversarial counsel, an but on the basis of individual compel the to a client yer’s ethical duties policy or custom of alleged agency-wide an is not public that a defender conclusion indigency in routinely ignoring the issue state, indepen- but instrument Al- non-payment of fines. the context interests. Id. of the client’s agent dent requesting though acknowledge that County did the Polk Court Significantly, hearings lawyer’s is within a indigency never acts public that a defender not hold functions,” the conduct com- “traditional McCollum, color of state law. See under nonetheless “administrative” plained (“the 54, 112 deter at S.Ct. 2348 505 U.S. already in for the reasons de- character is a public whether a defender mination that the Public scribed: Powers maintains purpose de particular actor for a state and there- systemic Defender’s inaction is nature and context of the pends on the imprimatur fore carries the of administra- Indeed, the performing”). he is function approval. tive that are propositions articulated two Court It is no means clear Su First, here. the Court stated relevant suggest intended to a strict preme Court ... also may public be that a defender “[i]t dichotomy prac between “administrative” law while act under color of state would a be public tices of defender pos performing certain administrative state action and “traditional func deemed Polk sibly investigative functions.” Coun defender, may not. public tions” of a which Second, at 445. ty, 454 U.S. differently, Stated we do not read Polk that, to his noted addition Court using to mean that the term County defender, public plaintiff had particular “administrative,” Supreme Court County, Polk named as defendants only action finding meant to limit a of state (the County equiv Polk Offender Advocate tasks, managerial hiring, firing, such as here), alent of the Public Defender and the allocation, and resource which are different County Supervisors. Board of Id. at Polk from the “traditional functions” of kind 325-26, 102 S.Ct. 445. The Court held a client. Polk lawyer representing a See although plaintiffs pleading County, 454 U.S. 102 S.Ct. 445 a 1983 claim for insufficient state Finkel, (citing Branti v. 445 U.S. defendants, it against County relief left 1287, 63 L.Ed.2d 574 for the S.Ct. open possibility might that the result proposition public that a defender acts un had the al have been different making hiring der color of state law when leged the existence of an unconstitutional decisions); firing Miranda Clark 326, 102 policy. Id. at S.Ct. 445. (9th Nevada, County, 319 F.3d 465 Cir. question The first then is whether 2003) (en banc) (holding public that a de purported policy of the Public Defender’s fender acted under color of state law failing indigency hearings on be seek allocating resources to cases based on the half of its clients falls within the “adminis routinely polygraph results of tests admin exception alluded to in Polk Coun trative” clients). case, If that were the istered to ty. conclude that it does. We public-defender agency then alleges that the Defender adopted policy, acquiesced Public or cus tom, engages policy refusing in an across-the-board to cross-examine the would immune to doing nothing protect custom of its indi- State’s witnesses be rights liability notwithstanding obvi- gent clients’ constitutional to be — unconstitutionality policy ous of such a or 5. The Record Reveals a Genuine Is- cross-examining custom—because wit- sue Material Fact Regarding the of falls within the “traditional func- Alleged nesses Existence Policy or lawyer. tions” of Custom Any alleged about whether doubt its order denying summary policy judgment Defender, or custom here constitutes state ac- for the Public the dis by tion is eliminated the second consider- trict court stated that “it is clear to the in County. ation articulated Polk As men- Court that the Public Defender Commis above, the Supreme tioned Court did not sion and the County Hamilton Public De decide whether the defendant in Polk fender had a policy well-settled custom or County would have satisfied the state-ac- of not asking for an indigency hearing requirement pleaded tion if he had before a probationer is incarcerated for (Class of an policy. existence unconstitutional failure to pay a fine.” Cert./Sum Here, 13-14.) very thing. mary Judgment Powers has done that Order at In rul argues that sys- ing He the Public Defender on summary Powers’s motion for judg ment, tematically violates class members’ consti- by district court stood its earlier conclusion, rights failing represent tutional them commenting: “Defendants have question on the indigency. Given the failed to genuine raise a issue of material reasoning of it County, Polk makes sense fact toas the existence of such a ... policy alleged to treat policy this or custom as There is no in question the Court’s view purposes state action for indigent 1983. The represented by defendants policy, existence of such a if proven, County will the Hamilton Public Defender show that the relationship jailed adversarial be- were they fines that were unable (Order tween the pay.”2 State and the Public Defender— to on Powers’s Motion for upon 19.) County which the Polk Court relied Summary Judgment at heavily in determining that the individual To establish the alleged existence of the public defender there was not a state ac- custom, policy or presented Powers sever- tor —has broken down such that the Public evidence, al different types including the serving Defender is the State’s in interest case, record of the in proceedings his own exacting punishment, rather than the in- testimony affidavit “judges’ about what the clients, society’s terests of its or interest show, sheets” numerous cases seven judicial proceedings. fair transcripts of proceedings, and an reasons, excerpt judicial meeting

For these we hold that from minutes.3 requirement. satisfies the state-action Each of these will be discussed turn. minimum, argues genuine 2. Powers that the Public Defender has there is a issue of materi- al fact as any argument to its existence. waived about whether Powers summary judgment is entitled to to the as 3. None of Powers’s evidence satisfies the alleged policy existence of the or custom be- standards Rule of Civil of Federal Procedure cause the Public Defender failed to sufficient- support 56 for evidence submitted in of sum- ly develop argument appellate this in its 56(e) mary judgment. provides Rule as fol- briefing. disagree. Although We the Public “Supporting opposing lows: affidavits explain Defender does what inferences personal knowledge, shall be made on shall should be drawn in its favor as non- would be set forth such facts as admissible moving party, adequately point it does evidence, affirmatively show shall show, view, tending record evidence in its competent testify the affiant is to the mat- policy violating that there is no or custom of hearing ters stated therein.” Neither rights the constitutional of its clients judicial fail- transcripts, excerpt nor that, ing indigency hearings, meeting to seek at a minutes are attached to an affidavit of These unspecified number cases. First, in own case some record Powers’s sheets, Weber, “con- according counsel asked for to judges’ reflect that his does not ability pay by judges” to the court- dis- into his tain the entries made hearing (JA costs, entry at the either ordered fine and them. of the matters before posing underlying to the plea 142-43.) of his no-contest thirty- Weber testified hearing or at the reckless-driving charge, cases, simply sheets or- judges’ two failing pay to violation for probation on his on “committed] dered the defendants’ 129-32.) (JA Indeed, costs. the fine and any findings no case reflected fines” hearing, judge probation at Powers’s income, assets, of fact into the offender’s probation vio- purported Powers’s recited debts, fine, ability pay to as re- lations, non-payment of including 143.) (JA by 2947.14. quired O.R.C. and asked Powers’s fine and court costs judges’ sheets Powers submitted the anything say had to on behalf counsel he cases, presumably four which were from responded, Powers’s counsel of his client. by pursuant to his re- retrieved Weber (JA 130.) “[njothing, Judge.” judges’ of these sheets re- search. None Second, the affidavit Powers submitted ability inquiry into the offenders’ flect Weber, testimony who avers of John court-imposed fine. pay to persons incar- he researched the cases Third, tran- presented seven by re- non-payment of fines cerated hearings in the court or- scripts of which proceedings in their viewing the records pay a fine for dered the defendants County through the Hamilton Clerk infractions, jailed their or ordered them Weber based his research Courts office. pay. failure to In no case do the for their jailed persons who were be- on a list of the defendants’ transcripts show August August tween objected imposition of a fine counsel The list was for failure to fines. an in- indigency grounds on or asked for at the direction of the Hamilton compiled ability quiry pay. into their clients’ One Pow- County produced Prosecutor and transcript shows that the defendant’s twenty-three discovery. ers in The list is his counsel asked the court to commit says it pages long and Powers consists client afford to “[c]an’t client because the approximately 1000 names. (JA 148-49.) pay.” names avers that he researched Weber Powers sub- piece The last of evidence of the list. only pages on the first four appear from excerpt in mitted was an what “judges’ Weber sheets” obtained obtained, party support position on explaining they the other of its how were where, any objections Similarly, summary judgment, to the dis Weber's affi- or whom. (discussed infra) of such materials not that he trict court's consideration davit does show waived, testify to have and we will competent to the matters” he are deemed been “is only gross identify objections to avoid a he does not him- review such describes because self, background miscarriage justice.”); Carter v. Western explain professional or Ctr., skills, Psychiatric capacity serving Habilitation 767 F.2d or in what he was Reserve (6th 1985) curiam) (per 273 n. 2 Cir. when he undertook to research the court rec- ("Although may have erred Despite glaring defi- the district court ords he describes. these ciencies, basing holding ... on unsworn affida Powers's evi- its still consider copies at of documents Defender did not vits and uncertified dence because the Public (or appellees' object competence appeal, tached as exhibits to motion to its below States, matter). Wiley summary judgment, since such materials do v. United for that See (6th Cir.1994) (“If comport requirements of Fed. party with the 56(e), we are satisfied that essential object the district court to the R.Civ.P. fails to before done.”). evidentiary justice was materials submitted affidavits 1982, in which that if meeting indigency hearings minutes from were requested be Timothy Hogan, chaired the Judge held, who judges’ sheets would be the time, at that Standing Criminal Committee record, opposed as to some other pro- committee’s efforts to reported document, Moreover, that noted this fact. jailing indigent persons of against tect (1) Weber does not state whether he re- non-payment of fines: searched the records in the cases of all 174 Hogan Judges informed the Judge as- persons indigency listed and hearings were of a letter from Robert New- sembled only thirty-two, not held in giving rise to man, Director, Legal challenging Aid they the inference that occurred in the incarceration of defendants for fines if cases; (2) remaining whether he sim- they indigent. reported are He that ply randomly thirty-two selected of the 174 Judge special Albanese had chaired a names; or whether he could obtain committee which met on June 23rd and only information on thirty-two cases be- the committee instructed the Court Ad- cause court records in the other cases ministrator, Schweiker, Mr. to draft a short, were not available. In without a procedure problem. to eliminate the context why findings as to Weber’s were (JA 74.) thirty-two cases, limited to we cannot con- above,

As described the district court testimony clude that his confirms the exis- concluded that this evidence was sufficient tence of the Public alleged poli- Defender’s unequivocally establish that the Public cy or custom. policy failing Defender has a or custom of Although it is clear that Powers has indigency hearings to seek on behalf of its not summary judgment satisfied his bur- clients threatened with incarceration for den, the Public Defender does not contro- non-payment of fines. any evidence, vert of Powers’s except disagree with the district court and We hearing transcripts the seven sub- instead conclude that Powers’s evidence is mitted. The Public Defender does not persistent insufficient to show a “clear and dispute that Powers never received an in- pattern” of abuse that the Defendants digency hearing, nor does the Public De- about, acquiesced knew in sufficient challenge testimony fender Weber’s summary judgment entitle Powers to as a in thirty-two the court records cases be- Doe, 508; matter of law. 103 F.3d at but any tween 2000 and 2002 did not reflect Alkire, (plaintiffs see 330 F.3d at 818 evi- ability into inquiry pay the offenders’ showing ability-to-pay dence that no deter- they court-ordered in- fines before were in mination was made his case or nine non-payment. carcerated for As to the other cases was sufficient to sum- defeat hearing transcripts, seven the Public De- mary it judgment). particular, is diffi- argues fender that two of the defendants probative cult to assess the value of what were represented there the Public strongest piece would seem to be Powers’s Defender, that one defendant’s fine was evidence, namely, testimony, Weber’s served, by jail already time obviated inartfully because Weber’s affidavit indigence three defendants’ other- count, By drawn. our there are 174 names court. reported of incarcerated individuals on the four consulted, generally it does not attack Although pages of the list that Weber evidence,-the ad- Powers’s Public Defender cases, thirty-two Weber testifies own, which it claims duced evidence its judges’ suggest inquiry that no sheets policy does not ability purported shows into the offenders’ was con- However, or, minimum, to a gives ducted. Weber does not state exist rise its Code of Professional its existence. Court Ohio of fact as to genuine issue Responsibility. consists Defender’s evidence The Public 332.) (JA the current Ham- testimony from affidavit County Defender and head of ilton Public by the fourteen The affidavits submitted office, Stringari, Lou Public Defender’s public defenders are identical assistant identical, attorneys form affidavits fourteen All of aver substance. these making regarding decisions attorneys. “[w]hen Taken Public Defender staff client, I of an individual representation the stands for the together, this evidence my governed by am the best interests defenders public that assistant proposition (JA my lawyer.” oath as a 338- client and obligations comply professional with their 379.) verbatim, They testify, further as to on behalf of their clients’ best to advocate representation of their 'when the nature a they and that take into account interests facing their clients are fines: myriad assessing of factors in how best monetary component a fine is a When monetary facing penal- a client a represent to pro- a sentence the discussion of how an ty. Finally, the Defendants submitted ceed includes: Sullivan, Mary the affidavit W. ability of the client or someone else the Chairperson of the Public Defender Com- prior the fine and reasons for mission, in which she that the Com- avers non-payment; than the mission does little more oversee they being are held on other whether needs of the Public Defender’s budgetary charges; office. if jail capacity, the is at commitment may on a fine result in an immediate First, Stringai-i testifies that he has release; County the Hamilton Public De- served as in may early resolution of the fine result explains 1994. He that the fender since probation; termination of employs the Defender staff Office of Public served, an immedi- credited with time attorneys public as defenders and assistant result; ate release contracts with attor- private-sector also of a commitment concur- possibility (JA 331.) neys “on an on-call basis.” He jail rent sentence associated with with that, further testifies the same or a different offense. County The office of the Public Defend- 378-79.) (JA er does not direct or control the actions Stringari, Importantly, neither nor attorneys its or the attor- of either staff attorneys, testify they individual staff in neys operating on a contract basis request indigency hearings appro- where [i.e., municipal division the division that including possible to fend-off incar- priate, represents persons charged with misde- non-payment ceration for of fines. ad- in with municipal respect meanors court] dition, attorneys although the staff aver repre- tactical decisions made in the they take into account certain tactical of individual clients. The of- sentation their clients are fac- considerations when attorney expects working fice that each monetary they explain ing penalties, do represent for it will their clients if, how, affect their these considerations professional and exercise inde- manner analysis indigency of whether to ask for judgment in the interest of pendent best Finally, hearing. the Public Defender did with represented clients consistent any showing not submit court records sought indigency hearings it has order Supreme standards established district court is by- development tual court records submitted to counter it has not. needed. showing that Powers above, we reverse the Accordingly, we conclude district

As described summary evi- grant judgment sufficient has not submitted court’s Powers summary judgment. proceed- remand further entitling him to dence sufficient, how- evidence were ings. Even if his district ever, reverse the would still did not E. The District Court Err that the grounds on the judgment court’s Certifying a Class genuine raised a issue Defender has

Public material fact at to existence granted The district court. failing custom of policy or purported certification, con Powers’s motion for class hearings. Drawing all rea- indigency seek requirements spelled out cluding that in favor of the Public inferences sonable 23 have in Federal Rule of Civil Procedure Defender, and those Stringari affidavit review a been satisfied. We class-certifi attorneys read as could be of the staff an cation determination for abuse dis of circumstances, the that in some averring Clinic, Ltd., Barney v. Holzer cretion. are served of the client interests best (6th Cir.1997). 1207, 1213n. “A 110 F.3d ability into seeking inquiry an not his/her wrong the district that either uses court instance, fine. For to a court-ordered the legal misapplies standard or correct client to may counsel her public a defender Id. legal standard abuses its discretion.” the on a fine accept a commitment because below, af For the reasons described we jail full knows that is public defender the grant firm court’s cer the class district actually therefore will not and client her modify to tification the class definition but (“if (JA at jail is any time. serve represented not persons exclude who were may a re- a on fine capacity, commitment by the Public Defender. release”).) Similarly, in an immediate sult cannot be certified unless A class action can be concur- jail on a fine served time commonality, typicality, numerosity, sentence, challeng- then another rent with are requirements of Rule 23 adequacy and may only indigency grounds ing fine words, must In met. other and to an alternative the client expose (1) the class is so numerous show that community ser- such as penalty, additional (2) impracticable, joinder of members all (“the (JA of a possibility vice. 378-79 fact of law or common there questions are jail sen- with a commitment concurrent (3) class, thé claims or defenses to the a the same or differ- with tence associated typical of the áre representative the class offense”).) analysis' may The same ent class, and claims or defenses “being on other if the client is held apply fairly ade- party will representative 378.) (JA Thus, strictly speak- charges.” class. the interests quately protect may deprivation sustain a ing, defendants 23(a). addition, plain- Fed.R.Civ.P. but, in rights some constitutional of their satisfy one of subsections tiff must cases, deprivation proportion of 23(b). Here, certi- Powers moved for Rule for an asking be because immaterial 23(b)(3), de- Rule which fication under accepting a hearing, simply indigency questions of law or showing a mands fíne, of a non-payment commitment over predominate to the class fact common the client than more beneficial to may be only individual class affecting questions tension hearing. Given the requesting the , members. rights at the constitutional here between a con- certified class court The district duty repre- lawyer’s a ethical stake and sisting of: interests, fac- further client’s best sent her who, facility by indigency County without tional Hamilton persons [a]ll custody municipal pleas or common court from hearing, were committed to the August present to the in satis- County correctional facili- of a Hamilton costs, faction aof fine court in- ty by County municipal or and/or a Hamilton cluding persons probation who violated pleas August court from common following ‘stay pay1 sentence. present in satisfaction of a costs, including per- mind, fine With this revised class definition in and/or proceed probation following sons who violated to consider the Public Defend- arguments er’s challenging class certifica- ‘stay pay’ sentence. tion. (Final 1.) at Judgment Order First, the Public Defender con argues the Public appeal, On Defender tends, any explanation, without that Pow certifying that the district court erred in ers typical is not of the class he seeks to the class because Powers has failed to represent. satisfy typicality To re 23(a)’s satisfy commonality Rule typi- quirement, representative plaintiffs in cality requirements and has further failed aligned terests must with be those of the 23(b)(3)’s satisfy predominance Rule re- GMC, class. Sprague quirement. (6th Cir.1998) (en banc) (citing Herbert B. matter, that, As an initial we conclude as Conte, Newberg & Alba Newberg on Class defined, presently the class is overbroad (3d Actions, 3-13, 3-75, ed.1992)). because it is not limited persons who plaintiffs claim typical “[A] is it arises by Defender,

were represented the Public practice the same event or or course encompasses persons but instead “[a]ll of conduct that gives rise to the claims of who, an indigency without hearing, were members, other class and if his or her custody committed to the of a Hamilton claims are based on the same legal theo County facility....” correctional The Pub- ry.” Sys., In re Am. Med. 75 F.3d lic Defender cannot be held liable for harm (6th Cir.1996). 1082 to persons that it did not cause. There- The Public dispute Defender does not fore, modify we will the class definition to jail that Powers was committed to for fail- persons proceeded pro exclude who se or ing to pay court-ordered fine and that his represented by attorneys who were other counsel did not seek an indigency hearing than public Barney, defenders. See any prior time to his incarceration. The F.3d at (modifying 1214-15 the defi- class Public dispute Defender also does not that appeal parties’ nition on to conform to the the class certified the district court Veneman, arguments); Chiang v. 385 F.3d similarly persons consists of situated who (3d 256, 268-69, Cir.2004) (modifying were non-payment incarcerated for their the appeal class definition on to reflect the fines in inquiry the absence of an into their plaintiffs’ national-origin focus on discrimi- ability those fines. It therefore improper nation and to eliminate an sub- cannot be said that Powers is not typical of definition). jective element of the class the class he represent. seeks to Accordingly, the class will now be defined Second, argues the Public Defender as: commonality, neither the nor predomi- the persons who were represented

[a]ll requirements nance are satisfied because County the Office of the Hamilton Pub- many there are too expe- variations Defender, who, lic and without an indi- riences of individual class members to gency hearing, were committed to the make class treatment of their claims ap- custody of a County propriate. Hamilton correc- Notably, the Public Defender constituted. properly class is certified purported what these explain not does courts have point, district More to are. “variations” modify class defini- broad discretion requirement commonality The tions, multiple district court’s so single factual or is a if there is satisfied merely showed amendments class. to the entire common legal question ap- make seriously obligation its took at 1080. F.3d Sys., 75 Am. Med. adjustments to class defini- propriate if this is met requirement predominance See, e.g. litigation progressed. tion as the of the at the heart question common Co., 417 Hewlett-Packard F.3d Schorsch questions mere fact litigation. “[T]he (7th Cir.2005) (noting that “[[liti- -member individual to each peculiar modify regularly class gants judges after the common action remain class definitions”); In re Ins. Monumental Life liability have defendant’s questions (5th Cir.2004) (“Dis- Co., 408, 414 conclu dictate the resolved does been limit or modi- permitted are trict courts impermissible.” action is class sion the neces- provide fy class definitions Corp., F.2d Sterling v. Chem. Velsicol sary precision.”). Cir.1988). (6th alleging a Cases par conduct are wrongful single course III. CONCLUSION to class certification. ticularly well-suited reasons, we AFFIRM foregoing For the Pub Here, alleged that the Powers has Id. that Pow- court’s conclusion the district ongoing in an engaged lic Defender cognizable and also claims are ers’s indigen- failing to seek practice regular certification. grant of class AFFIRM facing defendants hearings for criminal cy judg- court’s REVERSE district We fines. non-payment of incarceration for summary entitled to ment Powers is theo single has asserted factual law, and RE- as a matter of judgment to recover wrongdoing seeks ry of consistent proceedings MAND for further legal claim that single based opinion. with this class practice violated Public Defender’s dispos- rights. due The process members’ NORRIS, Judge, E. Circuit ALAN to each are the same as itive facts law dissenting. satisfy to This is sufficient member. class majori- much of the agree I with While commonality predominance

both it on what part ty’s opinion, company requirements. “thorny the' to recognizes be properly causation, proxi- specifically question” of ap Finally, the Public Defender Maj. at 609. The Ohio Op. re mate cause. the district court’s pears to criticize duty squarely places the Revised Code class definition peated modification into a hearing court to hold a upon so far as to contend go does not but before com- financial error, resources nor defendant’s reversible amounted to this jail or workhouse to a mitting-him by own our it. As demonstrated could Ohio Rev.Code- definition, pay a fine. failure to to the class clarifying revision world, defense perfect In a 2947.14.1 vigilant to ensure must be courts jail workhouse or statute, committed require- er be which addresses the This 1. paid, paid secured be fine is or Georgia, 461 Bearden v. until outlined in ments legally dis- is otherwise offender 76 L.Ed.2d or the S.Ct. U.S. magistrate deter- or (1983), charged, the court provides part as follows: able, is hearing offender at a that the part mines or a imposed as a sentence If a fine is time, refuses to pay the but fine sentence, at magistrate that the court of a by section hearing required this do may offend- so. order that the imposed the fine the court of stat- need to investigated prior counsel should remind its be to incarcerat- it utory obligation, particularly when is ing him unpaid Maj. Op. on the fine.” interest of his or her client.2 best short, 611. In I nothing find this record However, simply judges because face support majority’s conclusion that lengthy growing dockets does not ex- Defender, court, the Public not proxi- fulfilling statutory duty, cuse them from mately alleged caused Power’s constitu- majority suggests. as the Nor injury. tional inquiring court refrain from into an issue respectfully I dissent. litigants that has not been raised court, a statute commands it. This when instance, duty has an independent jurisdiction

examine basis of its re-

gardless of the parties whether have Accordingly,

briefed the issue. it seems majority

me that the is in it error when trial

concludes court’s breach of duty its does not sever the “chain of causa- America, UNITED STATES of plaintiffs injury tion” between and defen- Plaintiff-Appellee, alleged wrongdoing. Maj. dant’s Op. at 610. SIMMONS, Kossie Lamon outright misrepresentation eases of Defendant-Appellant. counsel, agree defense I ma- with the

jority that an ruling part erroneous on the No. 06-6173. of the court would not serve as a supersed- Appeals, United States Court of

ing here, cause. That is not the case Sixth Circuit. majority however. The states that “there dispute no the Public Defender did Argued: Aug. 2007. present municipal judge any with Decided and Aug. Filed: 2007. information about Power’s financial sta- Maj. Op. tus.” at 611. contrary, On the Rehearing Sept. Denied 2007. counsel informed the court that “Mr. Pow-

ers is homeless and can’t up any come with

bond,” put which the court on notice that indigency hearing necessary if the

court intended to confine Powers for non- It

payment his fine.3 is hard for me to statement,

fathom how counsel’s as the it,

majority municipal would have “left the

judge with the misleading impression that

Power’s financial circumstances did not shall be conducted at the may help explain why time of sentenc- which statutory ing. places duty inquire scheme on the 2947.14(A) (emphasis

Ohio Rev.Code add- court. ed). 3. represented by The fact that Powers was notes, majority 2. As the there be scenar- place Public Defender in the first likewise requesting hearing provided ios where signal is not in the a clear to the court that his client, Maj. Op. best interest of the financial resources were limited.

Case Details

Case Name: Powers v. Hamilton County Public Defender Commission

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Aug 29, 2007

Citation: 501 F.3d 592

Docket Number: 17-4239

Court Abbreviation: 6th Cir.