                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 13a0008n.06

                                     Nos. 11-4003/11-4004
                                                                                        FILED
                          UNITED STATES COURT OF APPEALS                            Jan 03, 2013
                               FOR THE SIXTH CIRCUIT                          DEBORAH S. HUNT, Clerk


S.L., a minor, by and through his guardian and next      )
friend K.L., et al,                                      )
                                                         )
       Plaintiffs/Appellees,                             )
                                                         )
v.                                                       )   ON APPEAL FROM THE UNITED
                                                         )   STATES DISTRICT COURT FOR
PIERCE TOWNSHIP BOARD OF TRUSTEES, et al.,               )   THE SOUTHERN DISTRICT OF
                                                         )   OHIO
       Defendants/Appellants.                            )
                                                         )
                                                         )


       Before: MOORE, GILMAN, and KETHLEDGE, Circuit Judges.

       KETHLEDGE, Circuit Judge. S.L., a teenager, filed this § 1983 action against several

defendants after he was arrested for aggravated arson and held in a juvenile detention center.

Defendants David Homer, the police officer who arrested S.L., and Thomas DelGrande, the

Superintendent of the Clermont County Juvenile Detention Center, appeal the district court’s denial

of their summary-judgment motions, in which they sought qualified immunity. We dismiss Homer’s

appeal for lack of jurisdiction and affirm the denial of DelGrande’s summary judgment motion.

                                                I.

       On December 3, 2006, S.L.’s mother, Gayle Schneider, found some burnt popsicle sticks in

S.L.’s bedroom. Schneider confronted S.L. and the ensuing argument led her to call 911. Homer

and his supervisor, Lieutenant Marvin Saylor, responded to the call.
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S.L. v. Pierce Township Board of Trustees
       Homer questioned S.L. alone in S.L’s room. It is undisputed that S.L. then admitted that he

had set some popsicle sticks on fire. But Homer and S.L. now disagree about what happened next.

According to Homer, S.L. said that he had left the sticks in his room while they were smoldering.

Homer asked S.L. whether he thought the smoldering sticks would start a fire. S.L. replied, “I really

don’t care. I don’t want to be here.” Homer left S.L. to confer with Lieutenant Saylor, after which

Homer arrested S.L. for arson. According to S.L., however, he did not say that he left sticks

smoldering in his room. Rather, he extinguished the fire and placed the sticks on a cardboard box.

S.L. also says that Homer arrested him without speaking to Saylor.

       The rest of the story is undisputed. Homer booked S.L. at the Clermont County Juvenile

Detention Center for aggravated arson, a first-degree felony. There, Shawn Bartley, the intake clerk

for the night, prepared a risk-assessment sheet and a report recommending S.L.’s detention.

       The next day, S.L. appeared before Juvenile Court Judge Stephanie Wyler for a detention

hearing. She determined that S.L. should remain confined pending a psychological evaluation.

Judge Wyler also appointed a guardian ad litem and scheduled S.L.’s pretrial conference. Before

the pretrial conference, S.L.’s guardian ad litem filed a motion for release. At the hearing on the

motion, the prosecutor acknowledged the lack of evidence of aggravated arson and amended S.L.’s

charge to unruliness. Judge Wyler ordered S.L.’s release and later dismissed the unruliness charge.

       S.L. thereafter filed this 42 U.S.C. § 1983 action, alleging that Homer arrested S.L. without

probable cause and that DelGrande negligently supervised the admissions process at the detention

center. Homer and DelGrande moved for summary judgment on qualified-immunity grounds, which

the district court denied. This interlocutory appeal followed.

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                                                 II.

       We review de novo the district court’s denial of qualified immunity. Marcilis v. Twp. of

Redford, 693 F.3d 589, 597 (6th Cir. 2012). In doing so, “[w]e take the district court’s view of the

facts in the light most favorable to [S.L].” Hayden v. Green, 640 F.3d 150, 152–53 (6th Cir. 2011).

       Homer first argues that collateral estoppel bars S.L.’s wrongful-arrest claim because Judge

Wyler had already determined that Homer had probable cause to arrest S.L. Under Ohio law, which

applies here, if the parties to the current action already litigated an issue to a decision in a prior

action, they must live with the decision. See Daubenmire v. City of Columbus, 507 F.3d 383, 389

(6th Cir. 2007) (quoting Thompson v. Wing, 637 N.E.2d 917, 923 (Ohio 1994)).

       But here, the premise of Homer’s argument is wrong. Judge Wyler never testified in her

deposition that she had made a probable-cause determination at S.L.’s detention hearing. (Instead,

she implied the opposite.) Homer says that collateral estoppel applies nonetheless, citing Judge

Wyler’s affidavit that, at the detention hearing, she “was satisfied that there was probable cause to

believe that [S.L.] may have committed the offense.” But whether Judge Wyler was “satisfied” as

to probable cause is beside the point. What matters for our purposes is whether she made a formal

probable-cause determination at the detention hearing; and she did not. So there is no prior decision

as to probable cause to bind the parties here.

       Homer next argues that he was entitled to qualified immunity because he, in fact, had

probable cause to arrest S.L. An arresting officer has probable cause if, based on facts known at the

time of arrest, he reasonably believes that the defendant had committed a crime. Logsdon v. Hains,

492 F.3d 334, 341 (6th Cir. 2007). Here, Homer arrested S.L. for aggravated arson. To have

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S.L. v. Pierce Township Board of Trustees
probable cause to arrest S.L. for that, therefore, Homer needed grounds reasonably to believe that,

by setting the popsicle sticks on fire, S.L. knew he had created a substantial risk of harm by fire to

the home or to the people inside. See O.R.C. § 2909.02(A).

       Homer says he has such grounds because S.L. said that he left the sticks smoldering in the

bedroom and did not care whether the house caught on fire. But S.L. disputes that he left the sticks

smoldering and, even if we were to interpret S.L.’s ambiguous testimony as conceding that he did

not care whether the house caught on fire, such a statement is largely immaterial to determining

whether S.L.’s conduct created the “substantial risk” that Ohio’s aggravated-arson statute requires.

Homer also says he obtained more information from Saylor before arresting S.L. But S.L. disputes

that Homer conferred with Saylor. And the only relevant undisputed fact—that S.L. set popsicle

sticks on fire in his room—does not support a probable-cause finding. Ohio defines “substantial

risk” as “a strong possibility . . . that a certain result may occur.” O.R.C. § 2901.01(A)(8). The

statute therefore requires more than an open flame inside a structure. Otherwise criminal violations

would include lighting a candle, cigarette, or stove-top burner inside a home. Cf. State v. Wolf, 891

N.E. 2d 358, 362–63 (Ohio Ct. App. 2008) (overturning a conviction for aggravated arson because

of insufficient evidence).

       Homer’s appeal is based upon disputed issues of fact. We therefore dismiss his appeal for

lack of jurisdiction. See Berryman v. Rieger, 150 F.3d 561, 563–64 (6th Cir. 1998).

                                                 III.

       S.L. also asserts a state-law negligent-supervision claim against DelGrande, the

superintendent of the detention center. According to S.L., DelGrande failed to train Shawn Bartley

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S.L. v. Pierce Township Board of Trustees
about the legal requirements for the intake process at the center. And Bartley, in turn, made a

mistake that allegedly resulted in S.L.’s detention. Specifically, Bartley failed to give Homer an oath

before Bartley accepted Homer’s complaint, as required under Ohio Rule of Juvenile Procedure

10(B)(3). DelGrande argues here, as he did in the district court, that he is entitled to immunity from

this claim under Ohio law. We review the district court’s denial of Ohio state-law immunity de

novo. Sabo v. City of Mentor, 657 F.3d 332, 336–37 (6th Cir. 2011).

       Ohio law provides two types of qualified immunity: public immunity and individual

immunity. See O.R.C. 2744.03; Lambert v. Clancy, 927 N.E.2d 585, 587 (Ohio 2010). DelGrande

did not seek public immunity in the district court, so we consider only his argument for individual

immunity here. See Summe v. Kenton Cnty. Clerk’s Office, 604 F.3d 257, 269–70 (6th Cir. 2010).

       Ohio law presumes individual immunity for public employees in civil actions, subject to

three exceptions: (1) where the employee acted outside the scope of employment, (2) where the

employee acted with “malicious purpose, in bad faith, or in a wanton or reckless manner,” and

(3) where a statute imposes liability. O.R.C. 2744.03(A)(6). Here, the district court determined that

the second exception applied because a jury could find that DelGrande acted in a wanton or reckless

manner. Thus, the court denied immunity.

       DelGrande first says that the “wanton or reckless” exception categorically cannot apply to

negligent-supervision claims because those claims require only a finding of negligence. But S.L. can

prove his negligence claim by a showing of wanton or reckless conduct. And the district court

properly concluded that the evidence in the record is sufficient to create a jury question concerning

whether S.L. has made that showing here. So DelGrande’s first argument is without merit.

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No. 11-4003
S.L. v. Pierce Township Board of Trustees

       DelGrande also argues that he did not, in fact, act wantonly or recklessly. Wanton

misconduct is “the failure to exercise any care whatsoever.” Fabrey v. McDonald Vill. Police Dept.,

639 N.E.2d 31, 35 (Ohio 1994). Recklessness is a “perverse disregard of a known risk.” O’Toole

v. Denihan, 889 N.E.2d 505, 516–17 (Ohio 2008).

       DelGrande admits that, as superintendent, he is responsible for training employees about the

legal requirements for detaining juveniles. And Bartley testified that he was never trained to

administer an oath before accepting complaints, as required under Ohio law. A jury could therefore

find that, by failing to train Bartley about a specific detention requirement, DelGrande exercised no

care with regard to supervising his staff or disregarded the risk of illegally detaining juveniles. Cf.

DiGorgio v. Cleveland, 2011 WL 5517366, at *7 (Ohio Ct. App. Nov. 10, 2012). Thus, DelGrande

is not entitled to individual immunity under Ohio law.

       We therefore dismiss Officer Homer’s appeal for lack of jurisdiction and affirm the

district court’s order denying qualified immunity for DelGrande.




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