                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 18a0015p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT



 KEITH CRABBS,                                             ┐
                                    Plaintiff-Appellant,   │
                                                           │
                                                           >      No. 17-3854
        v.                                                 │
                                                           │
                                                           │
 ZACH SCOTT,                                               │
                                   Defendant-Appellee.     │
                                                           ┘

                          Appeal from the United States District Court
                         for the Southern District of Ohio at Columbus.
                    No. 2:12-cv-01126—Michael H. Watson, District Judge.

                              Decided and Filed: January 22, 2018

                  Before: NORRIS, SUTTON, and DONALD, Circuit Judges.
                                   _________________

                                           COUNSEL

ON BRIEF: Michael Garth Moore, LAW OFFICES OF MICHAEL GARTH MOORE,
Columbus, Ohio, for Appellant. Nick A. Soulas, Jr., FRANKLIN COUNTY PROSECUTOR’S
OFFICE, Columbus, Ohio, for Appellee.
                                       _________________

                                            OPINION
                                       _________________

       SUTTON, Circuit Judge. Keith Crabbs filed a § 1983 claim alleging that the local police
violated his Fourth (and Fourteenth) Amendment right to be secure from unreasonable searches.
But he died before the case could be resolved. Anne Crabbs, Keith’s mother and the personal
representative of his estate, filed a motion to substitute as a party. The district court found that
Keith’s death extinguished his claim and dismissed the case. Because Keith’s § 1983 action
 No. 17-3854                              Crabbs v. Scott                                     Page 2


qualifies as a “cause[] of action for . . . injuries to the person” under the Ohio survivorship statute
and thus outlasts his death, we reverse and remand.

                                                  I.

       In December 2010, Keith Crabbs surrendered to the Franklin County Sheriff on charges
of voluntary manslaughter. After spending a night in jail, the court released him on bond.
Keith’s trial did not begin until March 2012.

       Two days into the trial, the court revoked Keith’s bond after he arrived late and quarreled
with a witness outside of the courthouse. Ohio law requires county sheriffs to collect a DNA
specimen of anybody “arrested on or after July 1, 2011, for a felony offense.” Ohio Rev. Code
§ 2901.07(B)(1)(a). The jail officials failed to collect a sample of Keith’s DNA when they took
him back into custody, triggering an “ID hold” on him. R. 82-1 at 2. At the conclusion of trial,
the jury acquitted Keith. But because of the hold, the County Sheriff required Keith to undergo a
DNA cheek swab before releasing him.

       Keith filed a § 1983 action against Sheriff Zach Scott in his official capacity alleging that
the Sheriff’s DNA-collection and ID-hold policies, when applied to acquitted defendants, violate
the Fourth Amendment. Before the litigation came to an end, however, Keith died. Anne
Crabbs, Keith’s mother and the personal representative of his estate, moved the court to allow
her to take Keith’s place under Civil Rule 25(a)(1). The district court denied the motion and
dismissed the case. Anne appeals.

                                                  II.

       “If a party dies and the claim is not extinguished, the court may order substitution of the
proper party.” Civil Rule 25(a)(1). We tend to review substitution determinations for an abuse
of discretion. See Bauer v. Commerce Union Bank, 859 F.2d 438, 441 (6th Cir. 1988). But a
district court necessarily abuses its discretion when it commits an error of law. United States v.
Taylor, 286 F.3d 303, 305 (6th Cir. 2002). The district court denied Anne’s motion to substitute
because it determined that Keith’s death extinguished his claim. All that was at issue then, and
 No. 17-3854                               Crabbs v. Scott                                   Page 3


all that is at issue now, is whether Keith’s claim survived his death. That is a question of law.
Fresh review applies. See Bailey v. City of Ann Arbor, 860 F.3d 382, 385 (6th Cir. 2017).

       To determine whether § 1983 claims survive, we first look to federal law for an
applicable rule of decision. Robertson v. Wegmann, 436 U.S. 584, 588–95 (1978). If no suitable
federal rule exists, we use the law of the forum state to the extent it is “not inconsistent with the
Constitution and laws of the United States.” Id. at 588; 42 U.S.C. § 1988.

       No federal statute or rule says anything about the survivorship of § 1983 claims.

       But Ohio law speaks to the issue. It contains a survivorship statute, which provides:

       In addition to the causes of action which survive at common law, causes of action
       for mesne profits, or injuries to the person or property, or for deceit or fraud, also
       shall survive; and such actions may be brought notwithstanding the death of the
       person entitled or liable thereto.

Ohio Rev. Code § 2305.21. The question, then, is whether Keith’s lawsuit amounts to a “cause[]
of action for . . . injuries to the person.” Id. If yes, his mother may pursue his cause of action.
If no, the lawsuit ended with his death.

       Wilson v. Garcia, 471 U.S. 261 (1985), offers guidance in answering the question.
At issue was how to characterize § 1983 claims under state statutes of limitations. In answering
the question, Wilson said three useful things.

       First, the characterization of § 1983 as a cause of action is itself a question of federal law.
Id. at 269–70. While we may look to state procedural rules, federal standards dictate the
essential elements of a § 1983 claim and, in turn, which procedural rules to apply. See id.

       Second, all § 1983 claims must be characterized in the same way.               Id. at 271–75.
Section 1983 claims span an array of topics, including discrimination in public employment,
illegal arrests and searches, deprivations of liberty and property without due process, violations
of freedom of speech and religion, and deliberate indifference to the medical needs of inmates,
just to name a few. See Fallon et al., Hart and Wechsler’s The Federal Courts and The Federal
System 750 (7th ed. 2003). Even when looked at individually, some of these constitutional
claims have no precise counterpart in state law, rendering decision making by analogy inherently
 No. 17-3854                               Crabbs v. Scott                                  Page 4


imperfect. Wilson, 471 U.S. at 272–73. Analyzing the particular facts of each § 1983 action
“inevitably breeds uncertainty and time-consuming litigation that is foreign to the central
purposes of § 1983.” Id. at 272. As a result, courts should adopt a straightforward and uniform
characterization of § 1983 claims. Id.

       Third, § 1983 actions are best characterized as personal injury actions. Id. at 280. The
evils that Congress addressed in the Civil Rights Act of 1871 sounded in tort and are most
analogous in the main to tort actions. Id. at 277.

       For these reasons, the Wilson Court held that all § 1983 actions brought in New Mexico
were governed by that State’s 3-year statute of limitations for “injury to the person,” id. at 280,
the same language as the Ohio survivorship statute.

       Owens v. Okure, 488 U.S. 235 (1989), applied a similar approach in a 9-0 decision.
It addressed a common scenario in which a State provides one statute of limitations for
intentional torts and a residual limitations period for other personal injuries. Id. at 236. Invoking
the virtues of uniformity, administrability, and predictability, Owens held that all § 1983 claims
were governed by the residual statute of limitations for personal injuries, even those stemming
from intentional conduct. Id. at 249–50.

       Since these decisions, Congress has gone further in the direction of uniformity. It has
provided a single, 4-year federal statute of limitations for all civil rights actions, thereby
preempting all state rules. 28 U.S.C. § 1658. Regrettably for us, it has not done the same thing
for survivorship issues.

       Even so, Wilson and Owens tell us what we need to know to resolve this case. Neither
decision cabined its rationale to state statutes of limitation. And if survivorship statutes are not
siblings of time-bar statutes, they are at least cousins. Together they seek to balance repose and
finality with the substantive policies served by enforcement of the cause of action. See Dobbs’
Law of Torts §§ 241 (Statutes of Limitation: Foundational Principles and Rationales),
372 (Wrongful Death and Survival Actions) (2d ed. 2017).
 No. 17-3854                             Crabbs v. Scott                                   Page 5


       In reaching this conclusion, we agree with the Seventh Circuit. It held that characterizing
all § 1983 claims as personal injury actions was “equally important” in the survivorship context
and that it would be “anomalous” to draw a distinction between survivorship statutes and statutes
of limitation. Bennett v. Tucker, 827 F.2d 63, 67–68 (7th Cir. 1987).

       Pulling all of this together, let’s review the bidding: § 1983 is silent on survivorship.
Ohio has a survivorship statute. The Ohio law guides us here. Keith’s Fourth Amendment
claim is a personal injury action under Wilson and Owens and thus qualifies as a “cause[] of
action for . . . injury to the person” under the Ohio statute and survives his death. Nothing about
this conclusion interferes with federal law. Because Keith’s claim survives his death, the district
court may substitute Anne in his place under Civil Rule 25(a)(1).

       Sheriff Scott offers a fair response. He maintains that, under the Ohio survivorship
statute, personal injury actions must arise from physical harm. Because Keith’s cheek-swab
claim arose from an invasion of his privacy, not physical harm, death extinguished the claim and
the district court has no authority to substitute a new party. We are not persuaded.

       The Ohio Supreme Court, the authoritative voice on Ohio law, has never established a
physical injury requirement under the Ohio survivorship statute. And the language of the statute,
“injury to the person,” does not suggest such a requirement. This language normally requires the
invasion only of a personal, not a physical, right and thus permits claims premised on
psychological harm. See Injury, Black’s Law Dictionary (10th ed. 2014) (defining “personal
injury” among other things as “[a]ny invasion of a personal right, including mental suffering”);
Restatement (Second) of Torts § 7 (defining “injury” as “the invasion of any legally protected
interest of another”).

       Many State High Courts have rejected a physical-harm requirement in the context of
survivorship (and similar) laws that contained identical or nearly identical language. See, e.g.,
Gressman v. State, 323 P.3d 998, 1006–07 (Utah 2013); Harrison v. Loyal Protective Life Ins.
Co., 396 N.E.2d 987, 989–90 (Mass. 1979); Gray v. Wallace, 319 S.W.2d 582, 584–85 (Mo.
1958); White v. Safe Deposit & Tr. Co., 118 A. 77, 80 (Md. 1922). In Bennett, the Seventh
Circuit case, the court preserved a procedural due process claim as “injury to the person” under
 No. 17-3854                             Crabbs v. Scott                                    Page 6


the Illinois Survival Act, which is about as ephemeral as constitutional injuries come. Bennett,
827 F.2d at 65, 68; 755 Ill. Comp. Stat. Ann. 5/27-6.

       The decisions of Ohio’s lower courts face in two directions. Some cases impose a
physical injury requirement in interpreting “injuries to the person.”        Witcher v. Fairlawn,
680 N.E.2d 713, 715 (Ohio Ct. App. 1996); Vill. of Oakwood v. Makar, 463 N.E.2d 61, 64–65
(Ohio Ct. App. 1983). But other cases say that this language encompasses “psychic injury”
including sexual harassment and intentional infliction of emotional distress. Bowman v. Parma
Bd. of Educ., 542 N.E.2d 663, 670–71 (Ohio Ct. App. 1988); Kelly v. Greene, No. 66359, 1994
WL 547767, at *2–3 (Ohio Ct. App. 1994). These Janus-faced intermediate court decisions offer
no basis for thinking that the Ohio Supreme Court would reject our approach.

       On top of all this, Wilson and Owens underscored the need for a simple and administrable
characterization of § 1983 claims under state law. Requiring courts to go pleading by pleading
and determine whether each civil rights case arises in greater part from physical harm than
psychic or dignitary harm would largely undo the benefit of characterizing all § 1983 claims as
personal injury actions in the first place. We think the appropriate level at which to generalize a
§ 1983 claim under state law is as a personal injury action, sounding in tort, and nothing further.

       We recognize that our decision parts way with a prior unpublished decision of this court,
Tinney v. Richland Cty., 678 F. App’x 362 (6th Cir. 2017). It held that a § 1983 malicious
prosecution claim did not survive under the Ohio statute. Id. at 368–69. But the decision
addressed survivorship only in dicta after holding that the constitutional claims lacked merit. Id.
The analysis is brief and never mentions, let alone distinguishes, Wilson, Owens, Bennett, or the
contrary state law authority discussed above. Unpublished decisions bind only the parties to the
instant case. FDIC v. Dover, 453 F.3d 710, 715 (6th Cir. 2006).

       For these reasons, we reverse and remand to the district court for further proceedings.
