                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0092n.06

                                            No. 09-3735                                   FILED
                                                                                      Feb 10, 2011
                           UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


CURTIS SMITH, et al.,                                     )
                                                          )        ON APPEAL FROM THE
       Plaintiffs-Appellees,                              )        UNITED STATES DISTRICT
                                                          )        COURT     FOR     THE
v.                                                        )        SOUTHERN DISTRICT OF
                                                          )        OHIO
SIMON LEIS, Sheriff, et al.,                              )
                                                          )                           OPINION
       Defendants-Appellants.                             )




BEFORE:        BOGGS and McKEAGUE, Circuit Judges; and QUIST, Senior District Judge.*

       McKeague, Circuit Judge. In this procedurally unique interlocutory appeal, we are asked

to resolve a number of complex issues regarding our appellate jurisdiction, as well as address various

claims of immunity. Plaintiff Curtis Smith, a resident of Hamilton County, Ohio, filed a class action

against numerous defendants, challenging the constitutionality of the electronic pretrial monitoring

program instituted by the Hamilton County Municipal Court. Smith alleged that the policy enacted

to enforce the electronic monitoring resulted in the issuance of illegal and unconstitutional warrants

for the arrest of individuals who allegedly violated the terms of their pretrial bonds. The complaint

named the Hamilton County Municipal Court (“Municipal Court”), the Hamilton County Sheriff’s

Office (“Sheriff’s Office”), Hamilton County Sheriff Simon Leis, Deputy Eric Copenhaver, and two



       *
       The Honorable Gordon J. Quist, United States Senior District Judge for the Western District
of Michigan, sitting by designation.
Curtis Smith, et al. v. Simon Leis, et al.
Case No. 09-3735

John Doe deputies (collectively “Defendants”). Defendants filed a motion for summary judgment

alleging, in part, that each defendant was immune from liability. Without first ruling on the motion

for summary judgment, the district court granted Smith’s previously-filed motion to amend his

complaint, and Defendants filed a motion to stay all proceedings pending the district court’s ruling

on the motion for summary judgment. The court denied the motion to stay and ordered additional

discovery on the issue of the adequacy of two proposed class representatives. Defendants then filed

this interlocutory appeal, arguing that the district court erred in denying the motion to stay, that

Defendants were immune as a matter of law, and that the case should be dismissed pursuant to the

abstention doctrine established in Younger v. Harris, 401 U.S. 37 (1971). Under this court’s existing

precedents, appellate jurisdiction exists over Defendants’ interlocutory appeal as it extends to the

immunity claims, and we find that Defendant Copenhaver is entitled to qualified immunity as a

matter of law. Defendants also raise a number of claims that are not properly before this court on

appeal, and therefore those claims should be considered by the district court on remand.

                                         I. BACKGROUND

A. Factual History

        Smith was charged on December 31, 2007, with violating the terms of a civil protection

order. After being arrested in January 2008, Smith was released on his own recognizance by a judge

of the Hamilton County Municipal Court, on the condition that he submit to electronic monitoring.

Without notifying Smith’s counsel, the Hamilton County Sheriff’s Office “presented Smith with an

additional list of conditions of electronic monitoring,” which included testing for unlawful drug use.

Two months later, Deputy Eric Copenhaver appeared ex parte before the Hamilton County

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Municipal Court judge assigned to Smith’s case and alleged in an affidavit that Smith had tested

positive for marijuana twice.        The court, pursuant to Hamilton County Municipal Court

Administrative Rule 12, notarized the affidavit, revoked Smith’s bond, and signed a warrant

authorizing Smith’s arrest.

        Smith was arrested approximately one week later for violating a condition of his pretrial bond

and was held overnight in jail. A bond revocation hearing was held the next day, though neither the

court nor anyone at the Sheriff’s Office notified Smith’s counsel about that proceeding, or of the

prior ex parte proceeding between the judge and Deputy Copenhaver. At the hearing, during which

no one from the Sheriff’s Office appeared to testify regarding the allegations of Smith’s positive drug

tests, the court revoked Smith’s recognizance bond and issued a new bond in the amount of $5,000.

Smith was unable to pay the new bond and remained incarcerated from the date of the hearing until

the conclusion of his trial eight days later. Although Smith attempted to file a state petition for a writ

of habeas corpus immediately after being incarcerated, the oral argument on his petition was

scheduled for three days after he was released and the court determined that the case was moot and

dismissed it.

B. Procedural History

        On April 3, 2008, Smith filed a complaint on behalf of himself and “all criminal defendants

in Hamilton County who are currently or will in the future be placed on electronic monitoring as a

condition of pretrial release” against Hamilton County Sheriff Simon Leis in his official capacity;

Deputy Eric Copenhaver in his individual and official capacity; the Hamilton County Sheriff’s

Office; the Hamilton County Municipal Court; and two John Does, both deputies with the Hamilton

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County Sheriff’s Office who were responsible for administering pretrial electronic monitoring. The

complaint, filed as a class action pursuant to 42 U.S.C. § 1983, challenged “the policy, practice, and

custom of the Hamilton County Sheriff’s Office and the Hamilton County Municipal Court of

issuing illegal and unconstitutional warrants for the arrest of individuals who allegedly violate the

terms of their pretrial bonds.” The complaint sought declaratory relief, temporary and permanent

injunctive relief, and monetary damages.

        Two months after filing the complaint, Smith filed a motion to certify a class consisting of

all criminal defendants in Hamilton County who were or would be placed on electronic monitoring

as a condition of pretrial release. After obtaining an extension from the court, Defendants filed a

response in opposition two months later, alleging that Smith had not presented a prima facie case

for class certification. The response also alleged that Smith’s claims were moot and that he lacked

standing; that Smith failed to name a necessary party; and that Smith’s request, if granted, would

contravene the abstention doctrine established in Younger. During that same time, the court issued

a preliminary pretrial order, in which it set a hearing for class certification on January 27, 2009, a

discovery completion date of May 1, 2009, and ordered that any dispositive motions be filed by June

1, 2009. The order also set a tentative trial date of August 24, 2009.

        After hearing arguments on the motion to certify a class on January 27, the court determined

that it would not rule on the merits of the case and instead continued the hearing until May 27, 2009

(later reset for June 16, 2009), in order to allow the parties to conduct additional discovery on the

class certification issues raised at the hearing. Two weeks after the hearing, Defendants filed a

motion to dismiss, in which they asserted that on the narrow issue presented by Smith regarding the

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constitutionality of the bond revocation proceedings in the Municipal Court, Defendants were

entitled to have the complaint dismissed.1 Although the motion was fully briefed by the parties, it

then remained pending on the court’s docket without action.

        Two months later, Smith moved for leave to file an amended complaint. The motion sought

to substitute two new plaintiffs in lieu of Smith as the named class representatives and to eliminate

one of the claims raised in the original complaint. Defendants then filed a motion requesting that

the court dismiss the complaint for failure to prosecute because of Smith’s failure to attend a

scheduled deposition and impose sanctions. In the same pleading, Defendants opposed Smith’s

motion for leave to file the amended complaint, arguing that Smith did not authorize filing the

motion and that the putative substitute class representatives were not proper parties in the action or

adequate class representatives.

        After Smith filed his response to that motion, Defendants filed a third motion to dismiss and

motion for summary judgment on June 1, 2009, asserting that: (1) the Hamilton County Municipal

Court was not sui juris and therefore could not be sued; (2) even if the court was properly named,

the action could not proceed; (3) the court was entitled to immunity pursuant to the Eleventh

Amendment; (4) the court and judges were entitled to absolute judicial immunity; (4) Smith’s claims

contravened the Younger abstention doctrine; (5) the Hamilton County Sheriff’s Office did not make

the policy that Smith alleged was unconstitutional, and it had immunity for all other claims; (6)

Sheriff Leis and Deputy Copenhaver were entitled to qualified immunity for claims against them in


        1
         Although not expressly invoked by Defendants, it appears that the motion to dismiss sought
to do so on the basis of failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6).

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Case No. 09-3735

their official capacities; (7) Deputy Copenhaver was entitled to qualified and quasi-judicial immunity

in his individual capacity; and (8) Deputy Copenhaver was entitled to absolute quasi-judicial

immunity in his official capacity as a probation officer. At the time this motion was filed, the court

had all prior motions filed by the parties still pending on the docket, as well as an additional motion

filed by the Ohio Association of Criminal Defense Lawyers requesting leave to file an amicus brief.

        On June 12, the court granted Smith’s motion for leave to amend his complaint, denied

Defendants’ motion to dismiss for failure to prosecute and for sanctions, and denied as moot

Defendants’ pending motion to dismiss for failure to state a claim; the court did not rule on

Defendants’ motion for summary judgment raising the immunity claims. That same day, Smith filed

the amended complaint as permitted by the court, naming Andre Miles and Dwight Ringer as the

new class representatives.2 Also that day, Defendants filed a motion to stay any further proceedings

pending the court’s ruling on Defendants’ motion for summary judgment. Although Defendants had

raised no objections to Smith’s previously-filed motion for extension of time to file a response to

the motion for summary judgment until July 15, 2009, Defendants argued that due to this delay, the

existence of pending motions, and the upcoming hearing on the motion for class certification,

Defendants would be required to continue to defend the action and engage in discovery without a

decision on their immunity defenses. Defendants argued that questions of immunity should be




        2
         Because the court granted the motion to amend the complaint, Miles and Ringer became
plaintiffs in this action in addition to Smith. However, for the sake of consistency and clarity, we
will continue to refer to the plaintiffs-appellees collectively as “Smith.”

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resolved at the earliest stages of litigation and that the district court could not avoid ruling on these

issues.

          On June 16, 2009, the court held a hearing on Smith’s motion to certify a class and

Defendants’ motion to stay. By Opinion and Order dated June 18, 2009, the court denied

Defendants’ motion to stay, explaining that regardless of the court’s decision on the motion for

summary judgment and the success of any claims of immunity, Smith’s claims for declaratory and

injunctive relief would remain pending. The court also stated that dismissal prior to certification

would be res judicata as to the class representatives but not to the putative class members, thus “[t]he

interests of judicial economy” weighed in favor of determining class certification prior to

consideration of the motion for summary judgment. Additionally, the court ordered that the decision

on class certification would be held in abeyance for forty-five days to allow Defendants the

opportunity to conduct thirty days of discovery on whether the newly proposed class representatives

would be adequate. Defendants filed a timely interlocutory appeal, challenging the district court’s

denial of the motion to stay and its failure to rule on the motion for summary judgment.

                                         II. JURISDICTION

          Before we address the merits of Defendants’ claim, we must first address Smith’s contention

that we do not have jurisdiction over this interlocutory appeal. Defendants assert that their appeal

is being taken pursuant to 28 U.S.C. § 1291, which authorizes jurisdiction over appeals “from all

final decisions of the district courts of the United States,” and this court’s holding in Everson v. Leis,

556 F.3d 484 (6th Cir. 2009). Although Defendants filed an appeal from a denial of a motion to stay,

which is not a final order, “[i]nterlocutory appeals can be made under § 1291 in limited

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circumstances, namely when the district court's order ‘is effectively unreviewable on appeal from

a final judgment,’ when it ‘conclusively determine[s] the disputed question,’ and when the question

involves a claim ‘of right separable from, and collateral to, rights asserted in the action.’” Id. at 490

(quoting Mitchell v. Forsyth, 472 U.S. 511, 527 (1985)). Defendants claim that the denial of the

motion to stay is effectively a denial of their motion for summary judgment based on qualified

immunity, and thus we have jurisdiction over their interlocutory appeal.

        This circuit has determined that “[a] decision on qualified immunity is separable from and

collateral to any rights asserted in the [underlying] action.” Id. Where, as here, the district court

failed to address the merits of the immunity claims raised in the motion, “[t]he key issue thus

becomes whether the district court’s refusal to address the merits of the [Defendants’] motion

conclusively determined the issue in this case.” Summers v. Leis, 368 F.3d 881, 886 (6th Cir. 2004).

In a series of cases, this court has held that a district court cannot refuse to resolve a question of

qualified immunity; rather, the court must address the merits of the claims to determine if qualified

immunity is appropriate or if there are material facts in dispute. See, e.g., Skousen v. Brighton High

School, 305 F.3d 520, 522, 527 (6th Cir. 2002). When a district court refuses to address a motion

for summary judgment on qualified immunity grounds, instead denying the motion as premature or

dismissing it without prejudice to re-file after discovery, this court has held that such refusal

“constitutes a conclusive determination for the purposes of allowing an interlocutory appeal.”

Summers, 368 F.3d at 887; see also Wallin v. Norman, 317 F.3d 558, 563 (6th Cir. 2003) (holding

that “[b]y failing to elaborate on why further discovery was necessary to properly decide the motion,

the district court erroneously denied the defendants the benefit of their defense from suit . . . [and]

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[w]e therefore conclude that the district court’s refusal to address the merits of the defendants’

motion based on qualified immunity was a conclusive determination for the purpose of allowing an

interlocutory appeal”); Skousen, 305 F.3d at 526 (concluding that because the district court denied

defendant’s motion without prejudice to re-file and otherwise refused to address the immunity claims

on the merits, “the denial did not turn on the existence of a genuine issue of material fact,” and

therefore this court had jurisdiction over the interlocutory appeal).

        However, in this case, the district court did not actually deny, dismiss, or issue any ruling on

Defendants’ motion for summary judgment as in the cases noted above. Instead, Defendants premise

appellate jurisdiction over their appeal on the district court’s denial of the motion to stay and its

corresponding failure to rule on the motion for summary judgment. Two cases are particularly

instructive in determining whether Defendants’ appeal permits this court to exercise appellate

jurisdiction over their claims. In Kimble v. Hoso, 439 F.3d 331 (6th Cir. 2006), relied on by Smith

to argue that this court does not have jurisdiction over Defendants’ appeal, this court addressed

“whether the district court’s delay in ruling on the defendant’s motion for summary judgment

qualifie[d] as a conclusive determination of the issue of qualified immunity or some other collateral

order in this case.” Id. at 334. There, defendants filed a motion for summary judgment raising

claims of qualified immunity, and plaintiff’s counsel failed to file a brief in opposition. Id. at 333.

The district court held a show cause hearing, ordered counsel to retain co-counsel, and set a new

deadline for filing the response. Id. Newly retained co-counsel also missed the deadline and filed

a motion for extension of time, in which he asserted that he had not yet had the opportunity to meet



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Case No. 09-3735

with original counsel to review the case. Id. The district court granted the motion, stating that no

further extensions would be granted, and defendants filed an appeal. Id.

        On appeal, this court held that the district court’s delay in ruling on the motion for summary

judgment was distinguishable from the circumstances in Skousen, and thus did not amount to a

conclusive determination on the qualified immunity issue that would permit the court to have

jurisdiction over the appeal. Id. at 334–35. First, the court noted that in Skousen there was an order

denying the motion for summary judgment, while in Kimble the district court had not ruled on the

motion but instead had delayed its ruling pending the filing of a response by plaintiff. Id. at 335.

Second, “the district court did not delay ruling on the defendants's motion for the legally erroneous

reason of permitting further discovery.” Id. Instead, the district court stayed further discovery until

the issue of qualified immunity could be addressed, thus not requiring “the defendants to face any

additional stages of litigation” and not undercutting “the essential purpose of qualified immunity.”

Id. As a result, this court concluded “that there was no appealable order . . . to which the collateral

order doctrine could apply” and dismissed the appeal for lack of jurisdiction. Id. at 336.

        Defendants, however, rely on Everson v. Leis, 556 F.3d 484, to assert that this court does

have jurisdiction over this appeal. In Everson, the district court failed to rule on defendant’s motion

for summary judgment based on qualified immunity, and instead held the motion in abeyance, re-

opened discovery for ninety days pursuant to a request by the plaintiff in his first response to the

motion, and ordered that a second response to the motion be filed by plaintiff at the close of

discovery. Id. at 490. On appeal, this court explained that the issue required the court to determine


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whether Everson was more like Kimble or the Skousen line of cases. Id. at 491. Although this court

noted that the district court did not actually deny or dismiss defendants’ motion for summary

judgment, “the district court did permit additional discovery without first resolving the question of

qualified immunity.” Id. The court explained that by failing to resolve the qualified immunity

question, defendants “would ‘be forced to go through a large part of the litigation process that the

qualified immunity doctrine seeks to avoid.’” Id. (quoting Wallin, 317 F.3d at 563). Further, this

court stated that “[a]rguably, the district court's actions here [were]even more egregious, as it did not

simply let discovery continue through to the original cutoff date, but rather ordered an additional

ninety days of discovery, to begin more than a year past the original discovery-cutoff date.” Id. at

491–92. And, “[i]f a district court can thwart interlocutory appeal by refusing to address qualified

immunity through abeyance rather than dismissal, then the district court can effectively ignore this

court’s directive that district courts address qualified immunity promptly.” Id. at 492. Accordingly,

finding that the district court’s order would be effectively unreviewable on final appeal and that the

order “conclusively determined [d]efendants’ claim of right to avoid further discovery,” this court

held that “a district court's decision to hold in abeyance a motion seeking qualified immunity is

immediately appealable unless that decision is related to the proper disposition of the motion.” Id.

        In the instant appeal, Defendants filed their motion for summary judgment on June 1, 2009.

Slightly more than a week after the court granted Smith’s unopposed motion for an extension of time

to file a response to the motion for summary judgment, the court granted Smith’s motion for leave

to file the amended complaint, and Defendants immediately filed the motion to stay. At a joint



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hearing on Smith’s motion for class certification and Defendants’ motion for summary judgment,

the court denied Defendants’ motion to stay, held Smith’s motion in abeyance for forty-five days,

and ordered an additional thirty days of discovery on the issue of the adequacy of the newly proposed

class representatives. On the basis of these facts, this case is more like Everson than Kimble, and

accordingly, we find that we may properly exercise jurisdiction over Defendants’ interlocutory

appeal. Although in their brief Defendants attempt to premise their appeal on the district court’s

denial of the motion to stay, this court is not bound by Defendants’ characterization of the procedural

posture of this case. Thus, rather than premise appellate jurisdiction on the district court’s denial of

the motion to stay, we may exercise appellate jurisdiction as a result of the district court’s failure to

rule on the motion for summary judgment raising the immunity claims.3 Such a failure by the district

court is in error for the same reasons that the district court’s court decision in Everson to hold the

motion for summary judgment in abeyance was error.

        Here, like in Everson, Skousen, Wallin, and Summers, “the district court permitted discovery

to continue before first resolving the qualified-immunity question,” which forced Defendants “to go

through a large part of the litigation process that the qualified immunity doctrine seeks to avoid.”

Everson, 556 F.3d at 491 (internal quotation marks omitted). As in Everson, the district court’s

actions here were “even more egregious, as it did not simply let discovery continue through to the

original cutoff date, but rather ordered an additional [thirty] days of discovery ” on the class


        3
        In fact, at oral argument, counsel for Defendants argued that this court had jurisdiction
pursuant to the district court’s failure to rule on the motion for summary judgment, and not on the
denial of the motion to stay, as argued in their brief.

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certification motion after the original cutoff date had passed. Id. at 491–92. Although a district

court may hold a motion for summary judgment raising claims of immunity in abeyance, it may do

so only after inquiring “whether any facts material to the plaintiff’s claims are genuinely at issue”

and then making a finding that those material facts are in dispute. Id. at 492. No such inquiry was

undertaken nor was such a finding made by the district court in this case. In light of the Supreme

Court’s reiteration that immunity questions should be resolved “at the earliest possible stage in

litigation,” Pearson v. Callahan, 129 S. Ct. 808, 815 (2009), and this court’s repeated directive that

a district court may not avoid ruling on a motion for summary judgment raising immunity claims,

see, e.g., Skousen, 305 F.3d at 527, the district court’s failure to rule on the motion for summary

judgment is immediately appealable.

        Additionally, although this court qualified its holding in Everson by stating that the decision

to hold the motion in abeyance was immediately appealable “unless that decision is related to the

proper disposition of the motion,” that exception does not apply here. 556 F.3d at 492. The district

court ordered discovery solely on the issue of the adequacy of the proposed class representatives and

not, for example, on a conclusion that there existed a well-supported need for discovery to resolve

the immunity issues raised in the motion for summary judgment resulting from a specific factual

dispute. The court also denied the motion to stay in part on the basis of judicial economy, explaining

that a decision on the motion for summary judgment would be res judicata as to the class

representatives and not the putative class members. However, this does not otherwise trump the

requirement that the district court decide the issue of immunity promptly so that Defendants are not



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subjected to further litigation that they sought to avoid by filing the motion.4 See Pearson, 129 S.

Ct. at 815 (“Indeed, we have made clear that the ‘driving force’ behind creation of the qualified

immunity doctrine was a desire to ensure that ‘insubstantial claims’ against government officials

[will] be resolved prior to discovery.”) (quoting Anderson v. Creighton, 483 U.S. 635, 640 n.2

(1987)). Similarly, although the district court noted that Fed. R. Civ. P. 23 requires that a court

determine whether to certify a class action “[a]t an early practicable time after a person sues or is

sued as a class representative,” this also does not mean that the court is obligated to decide a motion

for class certification prior to a motion for summary judgment on immunity grounds.5 Fed. R. Civ.


        4
         Smith argues in his brief that “[t]he sole basis of the district court’s decision to delay ruling
upon the County’s summary judgment motion was the County’s request for additional discovery
to oppose class certification.” However, Smith’s characterization is contradicted by the transcript
of the motions hearing at which the court ordered the additional discovery. The transcript shows that
after the court denied Defendants’ motion to stay, it addressed Smith’s motion for class certification
in light of the two new plaintiffs added to the complaint when the court granted Smith’s motion to
amend the complaint. When asked whether the two new plaintiffs would be adequate class
representatives instead of Smith, Defendants responded that they had used the original discovery
period to inquire about the adequacy of Smith, pursuant to the district court’s instructions at the
January 27 hearing. Since they had not had the opportunity to do the same for the two new plaintiffs,
who had just been added to the amended complaint, Defendants asserted that there was “no evidence
before the court that these two putative class members [were] adequate class representatives.”
Accordingly, Defendants reminded the court that they had “an ability and a right to conduct
discovery to determine whether they are adequate class representatives.” They did not, as Smith
seems to indicate, ask for an additional period of discovery in lieu of a ruling on their motion for
summary judgment.
        5
         Smith argues that this court’s precedent requires that a motion for class certification be
decided prior to a motion for summary judgment, citing Grant v. Bureau of Field Servs., 818 F.2d
31 (6th Cir. 1987) (per curiam) (table). However, Grant did not involve claims of qualified
immunity, which this court has specifically required district courts to resolve at the earliest stage of
litigation. Moreover, Grant was decided prior to the amendment to Rule 23 of the Federal Rules of
Civil Procedure. Prior to the 2003 amendments, Rule 23(c)(1) required that courts decide motions
for class certification “as soon as practicable after commencement of an action.” The rule in its

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P. 23(c)(1)(A). Again, permitting further litigation prior to ruling on the immunity claims directly

contradicts this court’s mandate that district courts may not avoid ruling on properly raised claims

of immunity. See Everson, 556 F.3d at 492. Accordingly, we conclude that the Skousen line of cases

and this court’s decision in Everson are controlling, and that the district court’s failure to rule on

Defendants’ motion for summary judgment raising claims of immunity is immediately appealable.6

                                             III. ANALYSIS

        Having determined that the exercise of jurisdiction over Defendants’ appeal is appropriate,

and having also determined that the district court erred in failing to rule on Defendants’ motion for

summary judgment, we may remand the case to the district court so that it may rule on all of the

substantive claims, or we may resolve the claims over which we have appellate jurisdiction and

remand the remaining claims over which there is no jurisdiction to the district court. See Wallin, 317

F.3d at 564 (remanding for further proceedings); Everson, 556 F.3d at 493–501 (resolving claims

of qualified immunity and remanding claims over which there was no appellate jurisdiction).

Because “the district court’s refusal to address the merits of [Defendants’] motion asserting qualified


present form, and as applicable to Smith’s motion, requires only that the court decide the motion “at
an early practicable time.”
        6
         Although Everson and the Skousen line of cases deal only with claims of qualified immunity,
the holdings are equally applicable to claims of sovereign immunity, which were also raised by
Defendants. Sovereign immunity “protects ‘a State’s dignitary interests,’” and a denial of a claim
of sovereign immunity is immediately appealable in an interlocutory appeal. Kelly v. Great Seneca
Fin. Corp., 447 F.3d 944, 948 (6th Cir. 2006) (quoting Will v. Hallock, 546 U.S. 345, 352 (2006)).
Claims of absolute immunity are also immediately appealable. See Barnes v. Wright, 449 F.3d 709,
714 (6th Cir. 2006) (citing Will, 546 U.S. at 350). Accordingly, to the extent the district court failed
to rule on Defendants’ claims of sovereign and quasi-judicial immunity, they too are immediately
appealable along with Defendants’ claims of qualified immunity.

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immunity constitutes a conclusive determination for the purposes of allowing an interlocutory

appeal,” and the record permits this court to resolve some of Defendants’ immunity claims, this court

will reach the merits of those claims rather than remand them to the district court. Summers, 368

F.3d at 887. However, not all claims raised by Defendants are properly before this court on appeal,

and those claims over which this court does not have jurisdiction must be remanded to the district

court.

A. Immunity

         Smith filed a complaint pursuant to 42 U.S.C. § 1983, which requires that he “establish (1)

the deprivation of a right secured by the Constitution or laws of the United States (2) caused by a

person acting under the color of state law.” Miller v. Sanilac Cnty., 606 F.3d 240, 247 (6th Cir.

2010). However, Defendants raised various claims of immunity for each of the named defendants

in their motion for summary judgment. Claims of entitlement to immunity are questions of law,

therefore they are reviewed de novo. See Barnes, 449 F.3d at 714.

         1. Sheriff Leis, Deputy Copenhaver, and John Doe Deputies

         In his amended complaint, Smith names as defendants Sheriff Leis in his official capacity,

Deputy Copenhaver in his individual and official capacity, and two John Doe deputies employed by

the Hamilton County Sheriff’s Office in their individual and official capacities.          Although

Defendants assert on appeal that the John Doe deputies are entitled to immunity on various grounds,

these claims were not raised in Defendants’ motion for summary judgment filed in the district court.

Defendants asserted immunity only on behalf of Leis, Copenhaver, the Sheriff’s Office, and the


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Municipal Court. Accordingly, any claims regarding the John Doe deputies are not properly before

this court on interlocutory appeal. See Noble v. Chrysler Motors Corp., Jeep Div., 32 F.3d 997, 1002

(6th Cir. 1994) (explaining that when an argument is not presented to the district court, it “will not

be considered for the first time by this court on appeal”).

        Defendants allege that Leis and Copenhaver are entitled to qualified immunity in their official

capacity. However, “[q]ualified immunity may be asserted by government officials sued in their

individual capacity.” Guest v. Leis, 255 F.3d 325, 337 (6th Cir. 2001) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 807 (1982)). As this court clearly summarized in Everson:

        “[I]ndividuals sued in their official capacities stand in the shoes of the entity they
        represent.” Alkire v. Irving, 330 F.3d 802, 810 (6th Cir. 2003) (citing Kentucky v.
        Graham, 473 U.S. 159, 165, 105 S. Ct. 3099, 87 L.Ed.2d 114 (1985)). “[O]fficial-
        capacity suits . . . represent only another way of pleading an action against an entity
        of which an officer is an agent.” Monell v. New York City Dep't of Soc. Servs., 436
        U.S. 658, 690 n.55, 98 S. Ct. 2018, 56 L.Ed.2d 611 (1978); see also Matthews v.
        Jones, 35 F.3d 1046, 1049 (6th Cir.1994) (“A suit against an individual in his official
        capacity is the equivalent of a suit against the governmental entity.”). As long as the
        governmental entity receives notice and an opportunity to respond, an official-
        capacity suit “imposes liability on the entity that he represents.” Brandon v. Holt,
        469 U.S. 464, 471-72, 105 S. Ct. 873, 83 L.Ed.2d 878 (1985). A government entity
        cannot claim any personal immunities, such as quasi-judicial or qualified immunity.
        Alkire, 330 F.3d at 810-11 (citing Graham, 473 U.S. at 167, 105 S. Ct. 3099). “The
        only immunities that can be claimed in an official-capacity action are forms of
        sovereign immunity that the entity, qua entity, may possess, such as the Eleventh
        Amendment.” Id. at 811 (quoting Graham, 473 U.S. at 167, 105 S. Ct. 3099).


556 F.3d at 493 n.3. Accordingly, these defendants are not entitled to qualified immunity in their

official capacity, because the suit is considered a suit against either the Sheriff’s Office or the county.




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Curtis Smith, et al. v. Simon Leis, et al.
Case No. 09-3735

         Defendants also allege that Deputy Copenhaver is entitled to both qualified immunity and

absolute quasi-judicial immunity in his individual capacity. It is well-established that “[t]he doctrine

of qualified immunity protects government officials ‘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.’” Pearson, 129 S. Ct. at 815 (quoting Harlow, 457 U.S. at 818). The

protection afforded to government officials entitled to qualified 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 omitted).

        To determine whether a government official is entitled to qualified immunity, this court

undertakes a two-step inquiry to determine if (1) the defendant violated a constitutional right, and

(2) if that right was clearly established. See Aldini v. Johnson, 609 F.3d 858, 863 (6th Cir. 2010).

However, we are no longer required to undertake this inquiry in the sequential order established in

Saucier v. Katz, 533 U.S. 194 (2001), and instead this court may “exercise [its] sound discretion in

deciding which of the two prongs of the qualified immunity analysis should be addressed first in

light of the circumstances in the particular case at hand.” Pearson, 129 S. Ct. at 818.

        Although Smith spends a significant portion of his brief arguing that his Sixth and Fourteenth

amendment rights were violated, we need not decide that issue. As Defendants correctly argue, it

is evident that it was not clearly established that following the Hamilton County Municipal Court

Administrative Rules violated any constitutional right. When a defendant raises a claim of qualified

immunity as a defense, the plaintiff bears the burden of showing that a right is clearly established,


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Curtis Smith, et al. v. Simon Leis, et al.
Case No. 09-3735

while the defendant must demonstrate that “the challenged act was objectively reasonable in light

of the law existing at the time.” Everson, 556 F.3d at 494. Thus, when reviewing a claim of

immunity on appeal, this court “must determine whether the ‘contours of the right [were] sufficiently

clear that a reasonable official would understand that what he is doing violate[d] that right.’” Elkins

v. Summit Cnty., Ohio, 615 F.3d 671, 676 (6th Cir. 2010) (quoting Moldowan v. City of Warren, 578

F.3d 351, 382 (6th Cir. 2009)).

        Smith alleged in his amended complaint that Deputy Copenhaver “appeared ex parte and

outside the presence of either Smith or his counsel before the Hamilton County Municipal Court

judge assigned to Smith’s case,” and informed the Municipal Court that Smith had twice tested

positive for marijuana since being placed on electronic monitoring. After that, the municipal court

judge, who was not named in the complaint, notarized Copenhaver’s affidavit, revoked Smith’s

bond, and signed a warrant authorizing Smith’s arrest for bond revocation. As Defendants correctly

note in their brief, when Deputy Copenhaver went before the Hamilton County judge, he was

following the provisions detailed in Rule 12 of the Hamilton County Municipal Court Administrative

Rules, which require that the pretrial monitoring officer prepare an affidavit stating the details of a

pretrial monitoring violation when such a violation occurs. Thus, Copenhaver’s actions were

authorized and, in fact, mandated by Rule 12. It would be unreasonable to claim that in following

a court rule that was not unconstitutional on its face, Copenhaver would have understood that

preparing an affidavit and bringing it to the court, as he was required to do by Rule 12, would violate

Smith’s constitutional rights. To claim that Copenhaver’s actions were anything but objectively



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Case No. 09-3735

reasonable at the time he prepared and brought his affidavit before the court, in light of the existing

court rule that governed his actions as Smith’s pretrial monitoring officer, would defy logic. Thus,

regardless of whether there were ultimately any violations of Smith’s constitutional rights, it cannot

be said that those rights were so clearly established at the time Copenhaver performed his duties as

required by Rule 12, such that any reasonable officer in Copenhaver’s position would have known

he was violating Smith’s rights. Accordingly, we find that Copenhaver is entitled to qualified

immunity as a matter of law.

        In addition, Defendants argue that Copenhaver is entitled to absolute quasi-judicial immunity

in his individual capacity because he was serving as an assistant probation officer and enforcing an

order of the court. Smith, however, contends that Defendants rely on “facts in dispute regarding the

role of sheriff’s deputies in administering the pretrial EMU program,” which prevents this court from

exercising jurisdiction over this claim of immunity. Smith asserts that Copenhaver was an employee

of the Sheriff’s Office and not the Municipal Court, and therefore he acted as a law enforcement

officer, not as a judicial employee, and is not entitled to absolute quasi-judicial immunity.

        “It is well established that judges are entitled to absolute judicial immunity from suits for

money damages for all actions taken in the judge’s judicial capacity, unless these actions are taken

in the complete absence of any jurisdiction.” Bush v. Rauch, 38 F.3d 842, 847 (6th Cir. 1994) (citing

Mireles v. Waco, 502 U.S. 9 (1991)). Moreover, this absolute immunity “has been extended to non-

judicial officers who perform ‘quasi-judicial’ duties.” Id. As this court has explained, “[q]uasi-

judicial immunity extends to those persons performing tasks so integral or intertwined with the


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Curtis Smith, et al. v. Simon Leis, et al.
Case No. 09-3735

judicial process that these persons are considered an arm of the judicial officer who is immune.” Id.

As with absolute judicial immunity, whether an individual is entitled to absolute quasi-judicial

immunity is determined by the function of the actor, rather than the constitutionality and

reasonableness of his actions. See Dixon v. Clem, 492 F.3d 665, 674 (6th Cir. 2007) (“Whether an

action is judicial depends on the nature and function of the act, not the act itself.”) (quoting DePiero

v. City of Macedonia, 180 F.3d 770, 784 (6th Cir. 1999)). Accordingly, “a court ‘looks to the nature

of the function performed, not the identity of the actor who performed it.’” Bush, 38 F.3d at 847

(quoting Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993)).

        However, because we have already held that Copenhaver is immune from civil damages on

the basis of qualified immunity, it is not necessary to resolve Defendants’ claim of entitlement to

absolute quasi-judicial immunity, which would provide the same protection from liability for

monetary damages. It is true that when a claim is brought pursuant to § 1983, the express language

of the statute partially limits available remedies by stating that “in any action brought against a

judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall

not be granted unless a declaratory decree was violated or declaratory relief was unavailable.” 42

U.S.C. § 1983. In other words, while a court could award both declaratory and injunctive relief in

an action against a defendant protected by qualified immunity, it could only award injunctive relief

in an action against a defendant protected by judicial or quasi-judicial immunity when a declaratory

decree was violated (which is not an issue here) or when declaratory relief is not available.

        Here, Smith seeks to have the electronic monitoring policy declared unconstitutional and



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Curtis Smith, et al. v. Simon Leis, et al.
Case No. 09-3735

“enjoin all Defendants from enforcing” the policy. However, if the district court declared Rule 12

unconstitutional, and therefore unenforceable, there would be no need for injunctive relief against

Copenhaver, who does no more than enforce the rule at the direction of the judges of the Municipal

Court.7 Furthermore, should any defendant, including Copenhaver, attempt to enforce the rule

following a declaration that it was unconstitutional, Smith would be entitled to seek injunctive relief.

Thus, because injunctive relief against Copenhaver would be unnecessary and he is already immune

from monetary damages as a matter of law, we need not reach the issue of whether Copenhaver is

entitled to absolute quasi-judicial immunity, as it provides him no greater protection than that already

afforded by qualified immunity.

        2. Hamilton County Sheriff’s Office


        Smith also listed the Hamilton County Sheriff’s Office as a defendant, as well as Sheriff Leis,

Deputy Copenhaver, and the John Doe deputies in their official capacities, which “is the equivalent

of a suit against the governmental entity.” Matthews, 35 F.3d at 1049. In their motion for summary

judgment, Defendants asserted in a footnote that the Sheriff’s Office was not a legal entity that could

be sued, and therefore should be dismissed because it was not a proper defendant in the action.

Defendants do not raise this argument on appeal, and state only that, “[a]ssuming arguendo the

Hamilton County Sheriff’s office is sui juris, the case of Monell v. Department of Social Services


        7
         Moreover, even if Copenhaver were personally enjoined from executing his duties pursuant
to Rule 12, the judges of the Municipal Court could simply order another deputy to undertake those
duties. Thus, enjoining Copenhaver would not provide meaningful relief. In other words, to the
extent that Smith seeks to have the court stop enforcement of the policy in its entirety, an injunction
against Copenhaver would be ineffectual and unnecessary.

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Curtis Smith, et al. v. Simon Leis, et al.
Case No. 09-3735

of City of New York, 436 U.S. 658, 98 S. Ct. 2018 and the facts of this case support

Appellants/Defendants’ plea for summary judgment on behalf of the Sheriff’s Office.” Because

Defendants fail to raise this issue on appeal, this court need not address it. See Miller v. Admin.

Office of Courts, 448 F.3d 887, 893 (6th Cir. 2006) (explaining that “issues are waived when not

raised in the appellant’s opening brief”) (internal quotation marks omitted).

        Rather, it appears that Defendants conflate immunity and liability when they assert that the

Sheriff’s Office “is immune from liability and summary judgment should be granted on its behalf.”

According to Defendants, because Smith conceded in his motion for leave to file his amended

complaint that the Sheriff’s Office did not create or impose the conditions of electronic monitoring

as initially alleged, the Sheriff’s Office is “immune from 42 U.S.C. § 1983 liability.” In response,

Smith asserts that this court lacks jurisdiction to address Defendant’s argument that the Sheriff’s

Office does not make the challenged policy, asserting that it is a question of fact that this court may

not review. Although Smith mis-states the governing rule, he is correct that this court lacks

jurisdiction to review Defendants’ claim.

        In both their brief on appeal and their motion for summary judgment filed in the district

court, Defendants invoke the term “immunity,” yet they do not present any argument that raises a

proper immunity defense. As noted above, “[t]he only immunities that can be claimed in an official-

capacity action are forms of sovereign immunity that the entity, qua entity, may possess, such as the

Eleventh Amendment.” Graham, 473 U.S. at 167. Yet, Defendants do not mention the Eleventh

Amendment when discussing the alleged “immunity” of the Sheriff’s Office or the individual


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Curtis Smith, et al. v. Simon Leis, et al.
Case No. 09-3735

defendants named in their official capacity, nor do they address any of the relevant factors for

determining whether an entity is an arm of the state and therefore entitled to sovereign immunity.

See Alkire v. Irving, 330 F.3d 802, 812–13 (6th Cir. 2003) (presenting an extensive but not

exhaustive list of factors “to guide the district court’s analysis of whether” the municipal court was

entitled to sovereign immunity).

        Instead, Defendants assert here, as they did below, that the Sheriff’s Office is “immune”

because it did not make or impose the policy challenged by Smith. Defendants’ argument is not

actually one of immunity from suit, but rather a question of whether Smith’s claim against the

Sheriff’s Office lacked a factual basis such that Smith failed to state a claim under Fed. R. Civ. P.

12(b)(6). This argument, however, is not reviewable under the collateral order doctrine or this

court’s pendent appellate jurisdiction. See Lowe v. Hamilton Cnty. Dep’t of Job and Family Servs.,

610 F.3d 321, 323–24 (6th. Cir. 2010) (noting that only a “small category” of decisions fall within

the collateral order doctrine, and those decisions must be conclusive, resolve “important questions

separate from the merits,” and be effectively unreviewable on appeal from the final judgment); id.

at 324 (declining to exercise pendent appellate jurisdiction because the issues raised were “not

‘inextricably intertwined’ with the district court’s denial of sovereign immunity” and review of the

issues was “not ‘necessary to ensure meaningful review’ of the denial of sovereign immunity”).

Accordingly, this court is without jurisdiction to address Defendants’ claim, and this too should be




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Case No. 09-3735

addressed by the district court on remand.8

        3. Hamilton County Municipal Court

        Finally, Smith sued the Hamilton County Municipal Court, although he did not name any

judge of the court or the judge who issued his arrest warrant or revoked his bond. In their brief,

Defendants raise multiple arguments regarding the liability of the Municipal Court.              First,

Defendants argue that the Municipal Court “is not sui juris; therefore, it cannot be a party to this

action.” Defendants also argue that even if the Municipal Court was properly named as a defendant,

the action could not proceed because Smith failed to demonstrate either legally or factually that a

constitutional violation occurred. In addition, Defendants allege that the Municipal Court is entitled

to absolute judicial immunity and sovereign immunity under the Eleventh Amendment.9




        8
         We pause to note that it appears once Smith conceded in his motion for leave to file an
amended complaint “that the Sheriff’s Office [does] not create or impose the conditions of electronic
monitoring as Smith initially alleged,” even if the Sheriff’s Office was not immune, it could not be
held liable. For a local government entity to be liable under § 1983, the entity itself must be engaged
in its “own wrongdoing.” Gregory v. City of Louisville, 444 F.3d 725, 752 (6th Cir. 2006). In other
words, under Monell, “[a]local government entity violates § 1983 where its official policy or custom
actually serves to deprive an individual of his or her constitutional rights.” Id. (citing Monell, 436
U.S. at 692–94); see also Los Angeles Cnty. v. Humphries, 131 S. Ct. 447, 449 (2010) (holding that
“the ‘policy or custom’ requirement also applies when plaintiffs seek prospective relief, such as an
injunction or a declaratory judgment,” and not just monetary damages). Smith conceded that the
Sheriff’s Office did not create the policy, but instead only followed court orders imposing electronic
monitoring and requiring the Sheriff’s Office to monitor these pretrial detainees, pursuant to Rule
12.
        9
         Defendants also state in their reply brief that the Municipal Court would be entitled to
legislative immunity for enacting the challenged rule. However, Defendants never raised this
argument below, and it is not properly before this court on appeal.

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Curtis Smith, et al. v. Simon Leis, et al.
Case No. 09-3735

        When a claim of sovereign immunity is asserted, the inquiry turns on whether the entity “is

to be treated as an arm of the State partaking of the State’s Eleventh Amendment immunity, or is

instead to be treated as a municipal corporation or other political subdivision to which the Eleventh

Amendment does not extend.” Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280

(1977); see also Lowe, 610 F.3d at 324–25 (“One of the more prominent exceptions to the doctrine

[of sovereign immunity] is that state instrumentalities that properly are characterized as political

subdivisions, rather than arms of the state, are not entitled to sovereign immunity.”). Here,

Defendants assert that because the municipal courts are part of the state’s judicial branch in Ohio,

they are entitled to Eleventh Amendment immunity. Smith countered in his brief that, to the extent

he seeks prospective injunctive relief against the Municipal Court, “Eleventh Amendment immunity

does not apply,” pursuant to the exception in Ex Parte Young, 209 U.S. 123 (1908). Nonetheless,

at oral argument, Smith’s counsel conceded that the court was not only protected by sovereign

immunity from damages, but also that there was no theory under which Smith was entitled to

injunctive relief from the Municipal Court as an entity, and agreed that the Municipal Court may be

dismissed. Accordingly, the Municipal Court is no longer a party to this action pursuant to counsel’s

concessions at oral argument, and we need not address any of Defendants’ claims regarding the

Municipal Court.10


        10
         Although we need not address the merits of Defendants’ claims, we note briefly our recent
decision in Pucci v. Nineteenth Dist. Ct., – F.3d –, 2010 WL 5110209 (6th Cir. Dec. 16, 2010), in
which we highlighted “the importance of dignity in the origins of our sovereign immunity doctrine”
and the emphasis on this factor in an analysis of sovereign immunity involving courts. Id. at *9.
This court noted that “if the agency in question carries out a long-recognized state function, it is a
particular affront to a state to subject this agency to suit.” Id. These considerations “are particularly

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Curtis Smith, et al. v. Simon Leis, et al.
Case No. 09-3735

B. Younger Abstention

        Finally, Defendants assert that Smith’s claims should be dismissed pursuant to Younger

abstention. However, this court has expressly foreclosed resolving claims of Younger abstention in

an interlocutory appeal raising claims of immunity. In Summers, this court explained that Younger

claims do not fit within the collateral order doctrine. 368 F.3d at 889. The court also explained that

determinations of whether a court must abstain under Younger and whether to grant immunity

“require the application of separate and distinct legal standards.” Id. at 889–90. Whether a

defendant is entitled to immunity “does not ‘necessarily and unavoidably’ resolve the Younger

abstention issue.” Id. at 890; see also id. (explaining that “resolution of the Younger abstention issue

is not critical because, even if the district court is required to abstain under Younger and dismiss the

suit, such a result has no effect on whether Leis is entitled qualified immunity”). Therefore Younger

claims also do not fall within this court’s pendent appellate jurisdiction when it is otherwise

addressing claims of immunity. Accordingly, we do not have jurisdiction over Defendants’ claims

of Younger abstention, and these should also be addressed on remand.

                                        IV. CONCLUSION

        For the reasons set forth above, we find that the district court erred in failing to rule on

Defendants’ motion for summary judgment and ordering additional discovery on the issue of class

certification. The district court’s failure to rule on the motion amounted to a final judgment for the



relevant in a suit against a state court, which is the ‘adjudicative voice’ of the State itself.” Id.
(quoting Barachkov v. 41B Dist. Ct., 311 F. App’x 863, 868 (6th Cir. 2009)).

                                                 - 27 -
Curtis Smith, et al. v. Simon Leis, et al.
Case No. 09-3735

purpose of exercising jurisdiction over this interlocutory appeal. On the merits, we hold that Deputy

Copenhaver is entitled to qualified immunity on Smith’s claims against Copenhaver in his individual

capacity. All claims regarding the immunity of the John Doe deputies are not properly before this

court on appeal because they were not raised in the motion for summary judgment below.

Additionally, all claims against Sheriff Leis and Deputy Copenhaver in their official capacity are

essentially claims against the Sheriff’s Office, thus they are not entitled to any personal immunities.

However, Defendants also did not raise a proper claim of sovereign immunity on behalf of the

Sheriff’s Office, and instead challenge only whether Smith’s claim against the Sheriff’s Office

lacked a factual basis such that Smith failed to state a claim under Fed. R. Civ. P. 12(b)(6). As we

are without jurisdiction to review this claim on interlocutory appeal, this should be addressed by the

district court on remand. Smith also has conceded that the Municipal Court may be dismissed as a

party, as he cannot seek monetary damages or injunctive relief against the court. Thus, we need not

address any of Defendants’ claims regarding the Municipal Court on appeal, nor will these claims

need to be addressed on remand, and the Municipal Court will be dismissed as a party to this action.

Finally, we are without jurisdiction to address Defendants’ claims regarding Younger abstention on

interlocutory appeal, and therefore those claims also should be addressed by the district court on

remand. Accordingly, we REVERSE the district court’s decision not to rule on the motion for

summary judgment and REMAND to the district court for further proceedings consistent with this

opinion.




                                                - 28 -
