Daily Services, LLC v. Valentino et al
Filing
27
OPINION AND ORDER granting 10 Defendants' Motion for Judgment on the Pleadings. Signed by Magistrate Judge Elizabeth Preston Deavers on 9/11/2013. (er1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DAILY SERVICES, LLC,
Plaintiff,
Civil Action 2:11-cv-01147
Magistrate Judge Elizabeth Deavers
v.
TRACY VALENTINO, et al.,
Defendants.
OPINION AND ORDER
Plaintiff, Daily Services, LLC, an Ohio company, files this action against various
employees of the Ohio Bureau of Wokers’ Compensation (“BWC”), alleging violations of its
Constitutional right to procedural due process. This matter is before the Court for consideration
of Defendants’ Motion for Judgment on the Pleadings or Alternatively to Stay on the Grounds of
Abstention. (ECF No. 10.) Plaintiff filed its Memorandum in Opposition to Defendants’ Motion
on April 27, 2012. (ECF No. 19.) Defendants filed their Reply on May 14, 2012. (ECF No. 20.)
On June 4, 2013, Defendants filed a Notice of Supplemental Authority highlighting three recent
state-court rulings related to Plaintiff’s allegations, to which Plaintiff responded.. (ECF Nos. 21
and 24.) This case was referred to the United States Magistrate Judge on June 26, 2013. For the
reasons that follow, the Court concludes that Defendants are entitled to qualified immunity.
Defendants’ Motion for Judgment on the Pleadings is, therefore, GRANTED.
I.
According to the Complaint, Plaintiff is a company that provides temporary employment
services in Central Ohio. (Compl. ¶¶ 17, 27, ECF No. 1.) Ryan Mason is the sole member of
Plaintiff. Mason was also the sole member of an Ohio company known as I-Force, LLC (“I-
Force”). I-Force also provided temporary employment services in Central Ohio, but on a longerterm basis than those arranged by Plaintiff. Id. at ¶ 16.
I-Force applied for self-insured status within the BWC in June, 2008. In November,
2008, the BWC denied I-Force’s application to become self-insured. I-Force then owed over $3
million in unpaid workers’ compensation premiums. Because it could not make this payment, IForce closed in March, 2009.
After I-Force closed, Plaintiff acquired a portion of I-Force’s customers and began to
provide longer-term employment services. Consequently, the BWC sought to hold Plaintiff
liable for I-Force’s unpaid workers’ compensation premiums. In doing so, however, Defendants
purportedly failed to provide Plaintiff with notice and opportunity to be heard, as Ohio law
requires.
According to Plaintiff, Ohio law sets forth specific procedures that the BWC must follow
prior to filing liens and judgments against an employer. Specifically, the BWC must first provide
the employer with a notice of overdue premiums and an opportunity to pay the premiums within
twenty (20) days. Id. at ¶ 30 (citing Ohio Rev. Code § 4123.37 and Ohio Admin. Code § 412314-02). Upon receipt of the notice, the employer can challenge the assessment by filing a
petition for reassessment. If the employer files a petition for reassessment, the BWC
administrator will issue an ultimate finding, which is then appealable to the Franklin County
Court of Common Pleas. If the employer does not file a petition for reassessment after receiving
a notice of assessment, the BWC may certify that the assessment has become final by operation
of law. Thereafter, the BWC may file a lien or judgment (or both) with the county recorder or
the Franklin County Court of Common Pleas.
2
Ohio law also provides a procedure by which the BWC may transfer rights and
obligations, such as unpaid premiums, from one company to another. Id. at ¶ 52 (citing Ohio
Rev. Code § 4123.32(D), Ohio Admin. Code § 4123-17-02-(C)(1)). According to Plaintiff,
successor liability is appropriate under Ohio law when it is determined that “one employer
wholly succeeds another in the operation of a business.” Id.
Plaintiff alleges that Defendants failed to comply with the foregoing requirements prior to
filing liens and judgments against it. Plaintiff maintains that Defendants did so in an effort to put
it out of business. Defendants allegedly filed a series of liens and judgments without a prior
determination that Plaintiff is legally a successor to I-Force. In addition, Plaintiff contends that
Defendants failed to provide a notice of assessment and opportunity to file a petition for
reassessment with respect to at least three sets of liens and judgments. Specifically, according to
Plaintiff, Defendants failed to provide a notice of assessment prior to filing a $54 million lien and
a $54 million judgment against Plaintiff on November 6, 2009; a $22 million lien on November
17, 2009; and a $3 million lien and $3 million judgment on July 8, 2010. Id. at ¶¶ 54, 62, 65.
Plaintiff contends that in light of Defendants’ failure to provide notice and opportunity to
be heard in accordance with Ohio law, the Franklin County Court of Common Pleas vacated the
$54 million judgment and the $3 million judgment on February 8, 2011 and October 4, 2010,
respectively. Id. at ¶¶ 62, 63. After the State court decisions vacating the judgments, on
February 18, 2011, Defendants released the $54 million lien, the $22 million lien, and the $3
million lien. (Compl. ¶ 73, ECF No. 1.)
That very same day, however, Defendants filed another $3 million lien and $3 million
judgment against Plaintiff for past-due premiums. Id. at ¶¶ 73, 74. Although this time
3
Defendants provided prior notice of the assessment, an appeal of the assessment was pending in
the BWC administrative process when Defendants filed the lien and judgment, rendering the lien
and judgment premature and in violation of Ohio law. The BWC eventually denied Plaintiff’s
appeal the $3 million assessment, concluding, incorrectly according to Plaintiff, that it had
previously determined that Plaintiff was a successor to I-Force. Plaintiff subsequently appealed
that decision to the Franklin County Court of Common Pleas and prevailed, resulting in the court
vacating the $3 million judgment.1
According to Plaintiff, Defendants acted in an effort to put it out of business, partly
because Defendant Valentino is a friend of the owner of one of Plaintiff’s competitors. Id. at ¶ 8.
Plaintiff alleges that Defendants’ actions prevented it from securing conventional financing. Due
to the inappropriate liens and judgments, Plaintiff submits that Defendants caused it to incur
approximately $1 million in excess interest charges. Plaintiff alleges that Defendants violated its
due process rights under 42 U.S.C. 1983 causing it significant financial damages.
II.
Rule 12(c) of the Federal Rules of Civil Procedure allows a party to “move for judgment
on the pleadings.” Fed. R. Civ. P. 12(c). The Court evaluates a motion filed under Rule 12(c)
using the same standard as a Rule 12(b)(6) motion to dismiss. Roth v. Guzman, 650 F.3d 603,
605 (6th Cir. 2011). To survive a motion to dismiss for failure to state a claim under Rule
1
The authority Defendants provided in their Notice of Supplemental Authority indicates
that the parties continued to contest the issue of successor liability in the Ohio court system after
Plaintiff filed this action. Defendants apparently appealed the Franklin County Court of
Common Pleas’ ruling setting aside the $3 million judgment, without success. The Ohio Tenth
District Court of Appeals affirmed the trial court’s ruling on September 18, 2012. (Notice of
Supp. Auth., Ex. 1, ECF No. 21-1.) The parties are currently involved in litigation in the BWC
administrative process to obtain a final determination as to successor liability. Id. at 4.
4
12(b)(6) of the Federal Rules of Civil Procedure, a plaintiff must satisfy the basic federal
pleading requirements set forth in Federal Rule of Civil Procedure 8(a). Under Rule 8(a)(2), a
complaint must contain a “short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual demands
on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B., --- F.3d
----, No. 12-2620, 2013 WL 4081909, at *1 (6th Cir. Aug. 14, 2013).
Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a
complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on
its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. “The plausibility of an inference depends on
a host of considerations, including common sense and the strength of competing explanations for
the defendant’s conduct.” Flagstar Bank, 2013 WL 4081909 at *2 (citations omitted).
III.
A.
The Parties’ Positions
In the instant Motion, Defendants assert that they are entitled to judgment on the
pleadings because Plaintiff has failed to plead that state law remedies were inadequate to
5
compensate its lost property interest. In the alternative, Defendants submit that qualified
immunity protects them from liability because, at the time of their alleged conduct, it was not
clearly established law that their purported conduct would give rise to a due-process entitlement
to predeprivation process. Put another way, although Defendants concede for purposes of this
Motion that they deprived Plaintiff of a property interest, they contend that it was not clearly
established law that Plaintiff was entitled to anything more than postdeprivation review to
compensate the loss. In support of their position, Defendants invoke a doctrine first announced
in Parratt v. Taylor, 451 U.S. 527 (1981), which generally requires plaintiffs who have been
deprived of a property interest as a result of “random and unauthorized” conduct to plead and
prove a lack of adequate postdeprivation state-law remedies.
Plaintiff asserts that Parratt does not apply, and thus that it is not required to plead a lack
of adequate state law remedies. In addition, Plaintiff contends that the clearly established law in
effect at the time of Defendants conduct required them to provide predeprivation process to
satisfy procedural due process.
B.
Procedural Due Proccess and the Parratt Doctrine
The Fourteenth Amendment provides that “[n]o State shall . . . deprive any person of life,
liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. To sustain a
procedural due process claim, a plaintiff must first point to a property or liberty interest that is
entitled to due-process protection. Mitchell v. Frankhauser, 375 F.3d 477, 480 (2004) (citing
Leary v. Dawschner, 228 F.3d 729, 741-42 (6th Cir. 2000)). Once the plaintiff makes such a
showing, the court “must then determine what process is due.” Id. (quoting Leary, 228 F.3d at
741). Here, the parties do not contest that Plaintiff held a property interest which was entitled to
6
due process protection. Thus, the Court addresses only the question of what process Plaintiff was
due.
“Procedural due process generally requires that the state provide a person with notice and
an opportunity to be heard before depriving that person of a property or liberty interest.” Warren
v. City of Athens, Oh., 411 F.3d 697, 708 (6th Cir. 2005); see also Thompson v. Ashe, 250 F.3d
399, 407 (6th Cir. 2001) (“Courts have long recognized that the Fourteenth Amendment requires
that an individual who is deprived of an interest in liberty or property be given notice and a
hearing.”). Nevertheless, a line of United States Supreme Court cases illustrates that, under
certain limited circumstances, the lack of predeprivation process will not invariably render the
taking unconstitutional.
In Parratt v. Taylor, 451 U.S. 527 (1981),2 an inmate alleged that a guard’s negligent loss
of his mail-ordered hobby kit deprived him of property without due process of law. The Court
recognized that the “fundamental requirement of due process is the opportunity to be heard and it
is an opportunity which must be granted at a meaningful time and in a meaningful manner.” Id.
at 540. Where the “random and unauthorized” negligence of a state official, as opposed to an
“established state procedure,” causes the deprivation, the Court recognized that “[i]t is difficult to
conceive how the State could provide a meaningful hearing before the deprivation takes place.”
Id. at 541. Ultimately the Court concluded as follows:
[E]ither the necessity of quick action by the State or the impracticality of providing
any meaningful predeprivation process, when coupled with the availability of some
meaningful means by which to assess the propriety of the State’s action at some time
after the initial taking . . . satisf[ies] the requirements of procedural due process.
2
Parratt was subsequently overruled in part on unrelated grounds. Daniels v. Williams,
474 U.S. 327, 331 (1986).
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Id. at 539.
In Hudson v. Palmer, 468 U.S. 517 (1984), the Supreme Court extended the Parratt
doctrine to the random and unauthorized intentional conduct of state employees. There, an
inmate alleged that a corrections officer intentionally destroyed his non-contraband items.
Reasoning that “a state can no more anticipate and control in advance random and unauthorized
conduct of its employees than it can anticipate similar negligent conduct,” the Court held that
Parratt applied, rendering postdeprivation process sufficient to satisfy procedural due process.
Id. at 533. The Court indicated that when a plaintiff is not challenging an established state
procedure, the “controlling inquiry is solely whether the state is in a position to provide for
predeprivation process.” Id. at 534.
In its most recent opinion on point, the Supreme Court addressed the contours of the
Parratt doctrine in Zinermon v. Burch, 494 U.S. 113 (1990). The plaintiff in Zinermon alleged
that officials at a state mental-health institution deprived him of his liberty without due process
when they permitted him to consent to his voluntary commitment to the institution even though
they knew or should have known that he was incompetent to provide informed consent. The
Court emphasized that “Parratt and Hudson represent a special case of the general [due process
analysis] in which postdeprivation tort remedies are all the process that is due, simply because
they are the only remedies the State could be expected to provide.” Id. at 128. The dispositive
issue, as the Court saw it, was “whether predeprivation procedural safeguards could address the
risk of deprivation of the kind [the plaintiff] alleges.” Id. at 132. The Court determined that
safeguards could have addressed the risk in that case:
The risk is that some persons who come into Florida’s mental health facilities will
apparently be willing to sign forms authorizing admission and treatment, but will be
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incompetent to give the express conformed consent required for voluntary placement.
Indeed, the very nature of mental illness makes it foreseeable that a person needing
mental health care will be unable to understand . . . the forms that person is asked to
sign, and will be unable to make a knowing and willful decision whether to consent
to admission.
Id. at 133. Ultimately, the Court concluded that Parratt did not apply for three reasons. First, it
found that “[a]ny erroneous deprivation will occur, if at all, at a specific, predictable point in the
admission process – when a patient is given admission forms to sign.” Id. at 136. Second,
because the risk of deprivation was foreseeable, the Court found that it was not impossible for
Florida to provide predeprivation process in the voluntary admission process. Id. Distinguishing
Parratt and Hudson, the Court noted that “[i]t would do no good for the State to have a rule
telling its employees not to lose mail by mistake, . . . [or] a rule forbidding a prison guard to
maliciously destroy a prisoner’s property . . . .” Id. Third, the Court found that the conduct of
the state employees was not “unauthorized” as that term was used in Parratt and Hudson:
The State delegated to [the state employees] the power and authority to effect the
very deprivation complained of here, . . . and also delegated to them the concomitant
duty to initiate the procedural safeguards set up by state law to guard against
unlawful confinement. In Parratt and Hudson, the state employees had no similar
broad authority to deprive prisoners of their personal property, and no similar duty
to initiate . . . the procedural safeguards required before deprivations occur. The
deprivation here is “unauthorized” only in the sense that it was not an act sanctioned
by state law, but, instead, was a deprivation of constitutional rights by an official’s
abuse of his position.
Id. at 138 (internal quotation marks, citations, and modifications omitted).
Accordingly, Parratt, Hudson, and Zinermon demonstrate that to prevail on a procedural
due process claim, a plaintiff must establish that the state deprived him of a liberty or property
interest pursuant to either (1) an “established state procedure” which itself violates procedural
due process rights; or (2) a “random and unauthorized act,” and that state law remedies are
9
inadequate to compensate for the loss. Wedgewood Ltd. P’ship I v. Twp. of Liberty, Oh., 610
F.3d 340, 349-50 (6th Cir. 2010).
A.
Analysis
Defendants offer various challenges to Plaintiff’s claims, including that qualified
immunity protects them from liability. The Court agrees that qualified immunity applies, and,
therefore, Defendants are shielded from liability.3
1.
Standard for Qualified Immunity
“Qualified immunity balances two important interests—the need to hold public officials
accountable when they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties reasonably.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009). “Under the doctrine of qualified immunity, ‘government
officials performing discretionary functions generally are shielded from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’” Phillips v. Roane Cnty., 534 F.3d 531,
538 (6th Cir. 2008) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “[Q]ualified
immunity applies regardless of whether the government official’s error is a mistake of law, a
mistake of fact, or a mistake based on mixed questions of law and fact.” Id. (internal quotation
marks and citations omitted). The determination of whether a government official is entitled to
qualified immunity involves two inquiries. Miller v. Sanilac Cnty., 606 F.3d 240, 247 (6th Cir.
2010). “First, viewing the facts in the light most favorable to the plaintiff, has the plaintiff
3
Because this conclusion is dispositive of the case, the Court need not, and does not,
address the remaining issues Defendants raise in their Motion.
10
shown that a constitutional violation has occurred? Second, was the right clearly established at
the time of the violation?” Id. (internal quotation marks and citations omitted). This second
question turns on whether the right was “so clearly established when the acts were committed
that any [official] in the defendant’s position, measured objectively, would have clearly
understood that he was under an affirmative duty to have refrained from such conduct.”
Dominique v. Telb, 831 F.2d 673, 676 (6th Cir. 1987). As this Court has previously indicated, a
right is clearly established if
the contours of the right [are] sufficiently clear that a reasonable official would
understand that what he is doing violated that right. This is not to say that an official
action is protected by qualified immunity unless the very action in question has
previously been unlawful; but it is to say that in the light of pre-existing law the
unlawfulness is apparent.
CareToLive v. Eschenbach, 525 F. Supp. 2d 952, 963 (S.D. Oh. 2007). In addition, the Court
need not consider the first and second qualified-immunity inquiries sequentially. Jones v.
Byrnes, 585 F.3d 971, 975 (6th Cir. 2009) (citation omitted).
Furthermore, in determining whether a right is clearly established for purposes of
qualified immunity, the Court of Appeals for the Sixth Circuit has directed that courts must “look
first to decisions of the Supreme Court, then to decisions of this court and other courts within our
circuit, and finally to decisions of other circuits.” Chappel v. Montgomery Cnty. Fire Prot. Dist.
No. 1, 131 F.3d 564, 579 (6th Cir. 1997). “The burden of convincing a court that the law was
clearly established ‘rests squarely with the plaintiff.’” Key v. Grayson, 179 F.3d 996, 999 (6th
Cir. 1999) (quoting Cope v. Heltsley, 128 F.3d 452, 459 (6th Cir. 1997)).
11
2.
Application of Qualified Immunity Defense
Plaintiff’s due process claims arise from Defendants’ purported deliberate failure to
follow Ohio’s established procedures requiring notice and opportunity to be heard prior to filing
liens and judgments against it. As discussed above, to prevail on a procedural due process claim
a plaintiff must generally demonstrate that the defendant effected the deprivation pursuant to (1)
an “established state procedure” which itself violates procedural due process rights; or (2) a
“random and unauthorized act,” for which state law remedies are inadequate to compensate it for
its loss. Wedgewood, 610 F.3d at 349-50. Here, Plaintiff specifically disavows any direct
challenge to Ohio’s established procedures. (Compl. ¶ 28, ECF No. 1.) Thus, Plaintiff must
demonstrate that Defendants engaged in random and unauthorized acts and available state
remedies could not adequately compensate for its loss. Plaintiff contends that although it does
not challenge Ohio’s established procedure, Defendants’ failure to follow Ohio law was not
“random and unauthorized” under Parratt. Put another way, Plaintiff maintains that Parratt does
not apply because Defendants’ conduct, although noncompliant with Ohio’s established
procedure, was not “random and unauthorized.” Consequently, Plaintiff asserts that it was
entitled to predeprivation process, such that the adequacy of postdeprivation remedies is
irrelevant.
For purposes of qualified immunity, Plaintiff must demonstrate that, at the time of
Defendants’ conduct, it was clearly established that Plaintiff was entitled to predeprivation
process. Thus, Plaintiff’s ability to prevail depends on whether the law was clearly established
that an official’s deliberate failure to follow established state procedures falls outside of Parratt’s
12
reach. Because the meaning and application of Parratt are anything but clear, Plaintiff cannot
meet its burden.
Parratt indicates that the Court is concerned with deprivations that “did not occur as a
result of some established state procedure.” 451 U.S. at 543. This holding, however, obfuscates
the meaning of random and unauthorized conduct. The law in the Sixth Circuit is unsettled as to
whether the failure of a public official to follow established procedure constitutes “random and
unauthorized” conduct, thereby triggering Parratt. In Copeland v. Machulis, for example, prison
officials allegedly confiscated and withheld an inmate’s money in violation of prison policy. 57
F.3d 476, 479 (6th Cir. 1995). In ruling that Parratt applied, the Court characterized the
deprivation as an “unpredictable and unauthorized departure[] from prison policy directives [that
was] beyond the State’s reasonable control . . . .” Id. Similarly, in Hebestreit v. Brown, an
inmate alleged that prison officials failed to follow established procedure requiring a hearing
before classifying his property as contraband. 995 F.2d 1067, 1993 WL 206535, *1 (6th Cir.
1993). The Court concluded that because prison officials “did not act according to established
procedures, . . . their actions were random and unauthorized.” Id. The Court reasoned that,
“[unlike the defendants in Zinermon, who had broad discretionary powers to [effect the type of
deprivation complained of], and who were sued by a patient who sought to hold [them]
accountable for their abuse of their broadly delegated, uncircumscribed power to effect the
deprivation at issue, the defendants in the instant case had no choice but to administer a
predeprivation hearing.” Id. at *2; see also Clemons v. Frassetto, No. 97-1291, 132 F.3d 32
(table), 1997 WL 778121, *2 (6th Cir. 1997) (“If the official performing the state procedure fails
to follow the state procedure, or conform his conduct to state law, the plaintiff’s injury is the
13
result of a ‘random and unauthorized act’ which the state was unable to foresee and thus
prevent.”).
The law likewise is unclear as to the significance of pleading that an official with policymaking authority effected the deprivation. The Court of Appeals has suggested that conduct is
“unauthorized,” triggering Parratt, only when the official lacks the authority to cause the type of
deprivation complained of, even if the official violates established state procedure. For example,
in Warren v. City of Athens, Oh., city officials failed to provide a hearing before erecting
barricades blocking the entrance to the drive thru of the plaintiff’s fast-food restaurant. 411 F.3d
697, 702 (6th Cir. 2005). In finding Parratt inapplicable, the Court noted that “‘unauthorized’
means that the official in question did not have the power or authority to effect the deprivation,
not that the act was contrary to law.”4 Id. at 709-10; see also Keenan v. Allen, No. 93-2398, 28
F.3d 1213 (table), 1994 WL 284118, *1 (6th Cir. 1994) (“This complaint may not be dismissed
under the Parratt doctrine, because, contrary to the district court’s conclusions, [the plaintiff] is
arguing that [the defendant] failed to comply with established procedure for conducting a proper
hearing, rather than acting outside that procedure in a ‘random and unauthorized’ manner.”);
Abdul-Mateen v. Moton, No. 93-1662, 19 F.3d 1432 (table), 1994 WL 91827, *2 (6th Cir. 1994)
(in declining to apply Parratt to prison official’s failure to allow inmate to present evidence at a
disciplinary hearing as prison policy dictated, the Court noted that “[a]n otherwise lawful act is
not rendered random and unauthorized for purposes of Parratt merely because the process
4
Arguably, Warren is distinguishable from this case because there the plaintiff did not
allege that placement of the barricades violated established state procedure. Nevertheless, the
Court’s broad language suggests that the due-process inquiry depends at least in part as to
whether the official possessed the authority to effect the deprivation.
14
afforded by state law was not followed”); LRL Prop. v. Portage Metro Hous. Auth., 55 F.3d
1097, 1114 (6th Cir. 1995) (Jones, J. dissenting) (noting, where majority did not reach the issue,
that the “conduct of [defendant] was intentional, and it constituted an abuse of authority rather
than conduct entirely outside of [defendant’s] authority. . . . [H]ad [defendant] merely followed
its own procedures . . ., it would not have deprived the [p]laintiffs of the property interest to
which they are allegedly entitled.”).
Courts outside the Sixth Circuit have pursued varying approaches as to whether an
official’s failure to follow established procedure constitutes “random and unauthorized” conduct,
thereby relieving defendants of their obligation to provide predeprivation process. For example,
the Second Circuit has held that any conduct by a “high ranking official,” even conduct that
violates established procedure, cannot be considered “unauthorized” under Parratt. See, e.g.,
Rivera-Powell v. N.Y. City Bd. of Elections, 470 F.3d 458, 465 (2d Cir. 2006) (“[T]he acts of
high-ranking officials who are ultimate decision-makers and have final authority over significant
matters, even if those acts are contrary to law, should not be considered ‘random and
unauthorized’ conduct for purposes of a procedural due process analysis.”) (internal quotation
marks and citations omitted). The Ninth and Fourth Circuits look to whether the official
possessed the authority to effect the general type of deprivation at issue. See, e.g., Honey v.
Distelrath, 195 F.3d 531, 534 (9th Cir. 1999) (“We hold that the acts at issue in this case were
not random and unauthorized because the defendants in this case had the authority to effect the
very deprivation complained of, and the duty to afford [the plaintiff] procedural due process.”);
Plumer v. State of Md., 915 F.2d 927, 931 (4th Cir. 1990) (“[T]he conduct of the state employees
here were not ‘unauthorized,’ for the state had delegated to its employees the power and authority
15
to effect the very deprivation complained of here . . . .”). Still other courts take a contrary view.
See, e.g., Wright v. Fred Hutchinson Cancer Research Ctr., 269 F. Supp. 2d 1286, 1293 (W.D.
Wash. 2002) (“Unlike the state mental hospital personnel in Zinermon, who were delegated the
choice of whether to initiate precommitment hearings . . ., defendants in this case were given no
choice to make [because a]ll governing statutes, regulations, policies, and procedures require
[predeprivation process].”); Sheppard v. Welch, No. 1:05-cv-467, 2006 WL 3134869, *5 (S.D.
Ind. Oct. 31, 2006) (“Unlike in Zinermon, the Indiana statute does not give the Prosecutor’s
office discretion to decide whether to provide advance notice and an opportunity for a hearing.
The evidence in this case shows no more than unauthorized and unpredictable violations of state
law.”).
Accordingly, the law in this and other Circuits does not clearly establish that an official’s
deliberate failure to follow established state procedure falls outside of Parratt’s reach. At best,
the law is inconsistent as to whether Parratt controls under these circumstances. Thus, it was not
clearly established that Plaintiff was entitled to predeprivation process at the time of Defendants’
conduct. Consequently, even construing Plaintiff’s allegations as true, this Court cannot find that
Defendants violated Plaintiff’s clearly established right to due process. Defendants therefore
enjoy qualified immunity under the facts presented here.
Plaintiff cannot prevail on its contrary arguments. First, Plaintiff contends that qualified
immunity cannot apply because reasonable persons in Defendants’ positions would have known
that their conducted violated Plaintiff’s rights. (Op. 11-12, ECF No. 19.) Perhaps a reasonable
persons in Defendants’ positions would have known that their conduct violated Plaintiff’s
statutory rights under Ohio law; that, however, is not the inquiry. The Court cannot conclude
16
that these persons would have knows that their conduct violated Plaintiff’s Constitutional right to
due process. Not every deprivation of a property interest requires predeprivation process.
Hudson, 468 U.S. at 533. For the reasons discussed above, the law is unclear as to whether the
deprivation complained of here gives rise to an entitlement of predeprivation process.
Relatedly, Plaintiff asserts that qualified immunity is inappropriate because it alleges in
its Complaint that Defendants knowingly violated its Constitutional rights. Thus, according to
Plaintiff, a jury must decide whether Defendants acted with the requisite knowledge and intent to
violate its Constitutional rights. A close review of the Complaint reveals that Plaintiff alleges
only that Defendants’ knowingly violated Ohio law, i.e., that they knowingly violated the
statutory right to notice and opportunity to be heard. Moreover, even if Plaintiff had alleged that
Defendants knowingly violated its Constitutional right to due process, whether a right is clearly
established is a question of law. Hughes v. City of North Olmsted, 93 F.3d 238, 241 (6th Cir.
1996). Because the law does not clearly establish that Defendants’ conduct falls outside of
Parratt, and thus that Plaintiff was entitled to predeprivation process, Defendants are entitled to
qualified immunity.
IV.
For the reasons set forth herein, Defendants’ Motion for Judgment on the Pleadings is
GRANTED. (ECF No. 10.) The clerk is DIRECTED to enter judgment in favor of Defendants
and to remove this case from the Court’s active cases and motions docket.
IT IS SO ORDERED.
/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge
Date: September 11, 2013
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