                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                      File Name: 07a0347p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                      X
                                                       -
                                Plaintiff - Appellee, -
 MICHAEL POWERS,
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                                                       -
                                                           No. 06-3460

                                                       ,
              v.                                        >
                                                       -
                                                       -
                                                       -
 HAMILTON COUNTY PUBLIC DEFENDER

                           Defendants - Appellants. -
 COMMISSION, et al.,

                                                       -
                                                       -
                                                      N
                       Appeal from the United States District Court
                      for the Southern District of Ohio at Cincinnati.
                     No. 02-00605—S. Arthur Spiegel, District Judge.
                                   Argued: January 30, 2007
                             Decided and Filed: August 29, 2007
                     Before: NORRIS, COLE, and CLAY, Circuit Judges.
                                      _________________
                                          COUNSEL
ARGUED: David Todd Stevenson, HAMILTON COUNTY PROSECUTING OFFICE, Cincinnati,
Ohio, for Appellants. Robert B. Newman, NEWMAN & MEEKS CO., Cincinnati, Ohio, for
Appellee. ON BRIEF: David Todd Stevenson, Pamela J. Sears, HAMILTON COUNTY
PROSECUTING OFFICE, Cincinnati, Ohio, for Appellants. Robert B. Newman, NEWMAN &
MEEKS CO., Cincinnati, Ohio, Stephen R. Felson, Cincinnati, Ohio, for Appellee.
        COLE, J., delivered the opinion of the court, in which CLAY, J., joined. NORRIS, J. (p.
23), delivered a separate dissenting opinion.
                                      _________________
                                          OPINION
                                      _________________
        R. GUY COLE, JR., Circuit Judge. Defendants-Appellants Hamilton County Public
Defender Office (the “Public Defender Office”) and Hamilton County Public Defender Commission
(the “Public Defender Commission”) (collectively, the “Public Defender”) appeal the judgment of
the district court granting class certification and summary judgment to Plaintiff-Appellee Michael
Powers. The Hamilton County municipal court ordered Powers to pay a fine in connection with a
reckless-driving charge. Powers was subsequently incarcerated for non-payment of that fine. He

                                                1
No. 06-3460           Powers v. Hamilton County Public Defender Comm’n, et al.                  Page 2


then filed this § 1983 class action, alleging that his constitutional rights were violated by the Public
Defender’s policy or custom of failing to seek indigency hearings on behalf of criminal defendants
facing jail time for unpaid fines.
        For the reasons set forth below, we AFFIRM the district court’s ruling that Powers’s § 1983
claims are cognizable, and AFFIRM the grant of class certification. We REVERSE the district
court’s grant of summary judgment to Powers and REMAND for further proceedings.
                                        I. BACKGROUND
        On January 23, 2002, Powers pleaded no contest in Hamilton County, Ohio municipal court
to a charge of reckless operation of a motor vehicle, a fourth-degree misdemeanor. Powers was
convicted on the same day and sentenced to thirty days of incarceration. The court suspended
twenty-seven of those days and ordered Powers to serve the remaining three days in a driver-
intervention program. The court further ordered Powers to pay a $250 fine and court costs.
        Two months later, on March 23, 2002, Powers was arrested for violating his probation by,
among other things, failing to pay the court-ordered fine. He again pleaded no contest and was
found guilty. The court terminated Powers’s probation and reinstated his original sentence of thirty
days of incarceration, minus credit for one day served. Powers alleges that he served at least one
day in the Hamilton County jail for his failure to pay the fine. At oral argument, the Public Defender
conceded that Powers spent some portion of his time behind bars exclusively in connection with the
unpaid fine.
       Attorneys with the Public Defender Office represented Powers at both his January plea and
sentencing for the reckless-driving charge, and the March hearing at which his probation was
revoked. Powers alleges that he was deprived of an indigency hearing because the Public Defender
has a policy or custom of failing to request such hearings when its clients face jail time for non-
payment of court-ordered fines.
        On August 21, 2002, Powers filed a class-action complaint seeking damages under 42 U.S.C.
§ 1983 on the theory that his incarceration, in the absence of any inquiry into his ability to pay the
court-imposed fine, violated his Fifth, Sixth, and Fourteenth Amendment rights. Powers also
asserted a legal-malpractice claim. In his original complaint, Powers named as defendants the
Public Defender Office; the Public Defender Commission; and Simon L. Leis, Jr., the Sheriff of
Hamilton County (the “Sheriff”). On June 4, 2003, Powers amended his complaint to add as
defendants Hamilton County (the “County”) and Hamilton County’s Board of Commissioners (the
“Board of Commissioners”).
       Powers moved for class certification on August 5, 2003. Defendants moved for summary
judgment on November 5, 2003. The district court held a hearing on both motions and issued a joint
order on August 23, 2005. The district court granted the Defendants partial summary judgment by
dismissing the Sheriff, the County, and the Board of Commissioners and further dismissing Powers’s
legal-malpractice claim. The district court declined to grant summary judgment as to the Public
Defender Office and the Public Defender Commission. The court rejected these Defendants’
argument that Powers’s § 1983 claims are not cognizable. The court further concluded that the
evidence established that the Public Defender “had a well-settled custom or policy of not asking for
an indigency hearing before a probationer is incarcerated for failure to pay a fine,” and that the
Public Defender was a state actor for purposes of § 1983. (District Court’s Order [On Plaintiff’s
Motion For Class Certification And Defendants’ Motion For Summary Judgment] at 13-14.)
         After disposing of the Public Defender’s motion for summary judgment, the district court
went on to grant Powers’s class-certification motion. The court concluded that Powers had satisfied
all the prerequisites of Federal Rule of Civil Procedure 23(a) and that certification was proper under
No. 06-3460           Powers v. Hamilton County Public Defender Comm’n, et al.                  Page 3


Rule 23(b)(3) because Powers’s case presents questions of law or fact common to the class that
predominate over questions affecting only individual class members. Although the court
periodically tinkered with the class definition, it ultimately certified a class consisting of
               [a]ll persons who, without an indigency hearing, were committed to
               the custody of a Hamilton County correctional facility by a Hamilton
               County municipal or common pleas court from August 21, 2000, to
               the present in satisfaction of a fine and/or court costs, including
               persons who violated probation following a “stay to pay” sentence.
(Final Judgment Order at 1.)
         Powers subsequently brought his own motion for partial summary judgment on liability,
arguing that “the [c]ourt’s rejection of Defendants’ [summary-judgment] motion clearly establishes
liability in his favor and in favor of the class.” (Order [On Powers’s Motion For Partial Summary
Judgment] at 2.) The district court granted Powers’s motion. Even though the Public Defender
submitted additional evidence to negate the existence of the alleged policy or custom of failing to
request indigency hearings, the district court concluded that the Public Defender’s showing was
insufficient to raise a genuine issue of material fact.
        Finally, the district court approved the content and dissemination of the class notice and
claim form, to be sent to a stipulated list of class members via United States mail and published in
the Cincinnati Enquirer. The court further approved a damage award equal to $100 per day for
each day of a class member’s incarceration. The court then stayed its judgment pending the
resolution of the Public Defender’s appeal.
                                         II. DISCUSSION
        The Public Defender asserts that the district court erred in several respects. First, the Public
Defender argues that the district court was obligated to dismiss Powers’s § 1983 suit as barred by
the Supreme Court’s holding in Heck v. Humphrey, 512 U.S. 477 (1994). Second, the Public
Defender contends that a proper balancing of the relationship between state and federal courts as
embodied in the Younger abstention doctrine and the Rooker-Feldman doctrine precludes Powers’s
§ 1983 claims. Third, the Public Defender argues that the district court erred in granting summary
judgment to Powers because (1) it did not cause the deprivation of Powers’s rights, (2) it is not a
state actor for purposes of § 1983, and (3) the evidence showed at least a disputed question of fact
as to the existence of its alleged policy or custom of failing to seek indigency hearings for clients
threatened with jail time for the non-payment of fines. Finally, the Public Defender contends that
the district court erred in certifying a class.
      We begin by considering whether Powers may even maintain his § 1983 action and then
move on to consider whether he is entitled to summary judgment and class certification.
A.      Standard of Review
         We review the district court’s grant of summary judgment de novo. Watkins v. Battle Creek,
273 F.3d 682, 685 (6th Cir. 2001). Summary judgment is appropriate where the record shows that
“there is no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.” Fed. R. Civ. P. 56(c). “Summary judgment is appropriate if a party who has
the burden of proof at trial fails to make a showing sufficient to establish the existence of an element
that is essential to that party’s case.” Beecham v. Henderson County, 422 F.3d 372, 374 (6th Cir.
2005).
No. 06-3460           Powers v. Hamilton County Public Defender Comm’n, et al.                 Page 4


B.     Powers’s § 1983 Claims Are Cognizable
       The Public Defender argues that the district court erred in holding that Powers’s § 1983
claims are cognizable. Citing Heck v. Humphrey, the Public Defender contends that a § 1983
damages action in connection with an allegedly unlawful conviction or sentence cannot be
maintained unless the conviction or sentence has been invalidated. 512 U.S. 477 (1994). Because
the municipal court never set aside Powers’s conviction and sentence, the Public Defender argues
that Powers cannot proceed on his § 1983 suit.
       Powers responds that Heck poses no obstacle to his case for two reasons. First, Powers
argues that Heck is inapplicable to § 1983 claimants who, like himself, were precluded from
challenging the legality of their convictions and sentences through a federal habeas action. Second,
Powers argues that his case fits within an exception to Heck because he challenges the flawed
procedures used to incarcerate him—that is, the lack of an inquiry into his ability to pay the court-
ordered fine—and not his underlying conviction for reckless driving or his jail sentence. Powers
contends that his procedural attack is analytically distinct from an attack on the municipal court’s
judgment.
       1. Heck’s Favorable-Termination Requirement
        Section 1983 establishes tort liability for the deprivation of federal rights by persons acting
under color of state law. 42 U.S.C. § 1983 (2007). In Heck, the Supreme Court addressed whether
an Indiana prison inmate could maintain a § 1983 suit in which he alleged that the defendants (the
prosecuting attorney and an Indiana State Police investigator) violated his constitutional rights by
conducting an illegal investigation leading to his arrest, destroying exculpatory evidence, and using
an illegal voice-identification procedure at his trial. 512 U.S. at 478-79.
       The Supreme Court analogized Heck’s § 1983 claim to a tort claim for malicious
prosecution. Id. at 484. An element of a malicious-prosecution claim is a showing that the plaintiff
prevailed in the criminal proceeding that gave rise to the malicious-prosecution lawsuit. The Court
noted that this “favorable-termination requirement” protects against the risk of inconsistent
judgments that collateral attacks on criminal convictions could otherwise engender. Id. at 484-85.
Accordingly, the Supreme Court held that a § 1983 damages action in connection with an unlawful
conviction or sentence will not lie unless the claimant, like a malicious-prosecution plaintiff, can
show that the underlying conviction or sentence has been invalidated:
               [T]o recover damages for allegedly unconstitutional conviction or
               imprisonment, or for other harm caused by actions whose
               unlawfulness would render a conviction or sentence invalid, a § 1983
               plaintiff must prove that the conviction or sentence has been reversed
               on direct appeal, expunged by executive order, declared invalid by a
               state tribunal authorized to make such determination, or called into
               question by a federal court’s issuance of a writ of habeas corpus.
Id. at 486-87. Moreover, the Supreme Court instructed that even if the plaintiff challenges
something other than his conviction or sentence, where a ruling in his favor would “necessarily
imply the invalidity of his conviction or sentence,” the favorable-termination requirement applies:
               [W]hen a state prisoner seeks damages in a § 1983 suit, the district
               court must consider whether a judgment in favor of the plaintiff
               would necessarily imply the invalidity of his conviction or sentence;
               if it would the complaint must be dismissed unless the plaintiff can
               demonstrate that the conviction or sentence has already been
               invalidated.
No. 06-3460           Powers v. Hamilton County Public Defender Comm’n, et al.                Page 5


Id. at 487.
        Justice Souter, joined by three of his colleagues, wrote a separate concurrence in Heck, in
which he expressed the view that the favorable-termination requirement does not preclude § 1983
lawsuits by persons who could not have their convictions or sentences impugned through habeas
review. Because petitioners may obtain habeas relief only if they are “in custody,” Justice Souter
noted that persons “who were merely fined, for example, or who have completed short terms of
imprisonment, probation, or parole, or who discover (through no fault of their own) a constitutional
violation after full expiration of their sentences” are prohibited from bringing habeas actions to
challenge their convictions or sentences. Id. at 500. Justice Souter argued that applying Heck’s
favorable-termination requirement to § 1983 claimants in these circumstances would have the effect
of altogether denying them a federal forum for the alleged deprivation of their federal rights. He
reasoned that such an outcome was impermissible for two reasons. First, applying the favorable-
termination requirement to claimants prohibited from seeking habeas relief is inconsistent with
broad construction of § 1983 and the statute’s purpose of “‘interpos[ing] the federal courts between
the States and the people, as guardians of the people’s federal rights.’” Id. at 501 (quoting Mitchum
v. Foster, 407 U.S. 225, 242 (1972)); accord Dennis v. Higgins, 498 U.S. 439, 443 (1991) (stating
that § 1983 “provides a remedy, to be broadly construed, against all forms of official violation of
federally protected rights”). Second, Justice Souter argued that absent “unambiguous Congressional
direction,” the Supreme Court “lacks the authority” to deny a § 1983 cause of action to those who
could not pursue habeas relief. Id.
         In Spencer v. Kemna, Justice Souter, again in concurrence, reiterated his conclusion that
Heck’s favorable-termination requirement is inapplicable to those persons prevented from satisfying
it “as a matter of law.” 523 U.S. 1, 21 (1998). Spencer was a habeas, not a § 1983, case, in which
the Supreme Court held that Spencer’s habeas petition was moot because he had completed his term
of incarceration. Id. at 17-18. Spencer argued that the Court could not dismiss his petition on
mootness grounds because, absent a merits adjudication, he could not satisfy Heck’s favorable-
termination requirement, and therefore would be barred from bringing a § 1983 challenge to the
alleged deprivation of his constitutional rights. Id. at 17.
        The Court rejected Spencer’s argument. Nonetheless, a majority of the Court agreed with
Justice Souter’s view that the dismissal of Spencer’s habeas petition on mootness grounds did not
eliminate Spencer’s right to seek § 1983 relief. Justices O’Connor, Ginsburg, and Breyer joined
Souter’s concurrence and Justice Stevens, in dissent, stated that “it is perfectly clear, as Justice
Souter explains, that he [Spencer] may bring an action under § 1983.” Id. at 18, 25, n.8; see also
Wallace v. Kato, 127 S. Ct. 1091, 1101 (2007) (Stevens, J. concurring) (stating that “because a
habeas remedy was never available to [petitioner] in the first place,” Heck did not postpone the
accrual of petitioner’s § 1983 claim). Justice Souter went so far as to concede that if the dismissal
of Spencer’s petition actually foreclosed a § 1983 damages action, Spencer would be correct in
claiming that dismissal would be improper. Spencer, 523 U.S. at 19. But, Spencer’s argument failed
because he could not challenge his conviction through a habeas proceeding, and therefore he “[was]
free to bring a § 1983 action.” Id.
        2.     Heck Is Inapplicable Because Powers Was Foreclosed from Challenging his
               Incarceration in a Habeas Action
         Drawing on Justice Souter’s Heck and Spencer pronouncements, Powers argues that the
favorable-termination requirement is inapplicable to his claims because he has been released from
prison. As an initial matter, Powers misstates the nature of the Heck limitation that Justice Souter
has theorized. What is dispositive in Powers’s situation is not that he is no longer incarcerated, but
that his term of incarceration—one day—was too short to enable him to seek habeas relief. It seems
unlikely that Justice Souter intended to carve out a broad Heck exception for all former prisoners.
No. 06-3460           Powers v. Hamilton County Public Defender Comm’n, et al.                Page 6


The better reading of his analysis is that a § 1983 plaintiff is entitled to a Heck exception if the
plaintiff was precluded “as a matter of law” from seeking habeas redress, but not entitled to such an
exception if the plaintiff could have sought and obtained habeas review while still in prison but
failed to do so. See, e.g., Guerrero v. Gates, 442 F.3d 697, 705 (9th Cir. 2006) (holding that the
plaintiff could not “now use his failure timely to pursue habeas remedies as a shield against the
implications of Heck”) (internal quotation marks omitted).
        To date, neither we, nor the Supreme Court, have conclusively resolved whether Spencer
should be construed as limiting the reach of Heck such that a § 1983 claimant in Powers’s shoes is
excepted from the favorable-termination requirement. In Shamaeizadeh v. Cunigan, we stated that
Spencer “clearly excludes from Heck’s favorable termination requirement former prisoners no
longer in custody.” 182 F.3d 391, 396 n.3 (6th Cir. 1999). In contrast, in Huey v. Stine, we
acknowledged the uncertainty generated by Spencer, but nonetheless held that Heck was still
controlling where the plaintiff (an inmate) could not bring a habeas challenge to his thirty-day
disciplinary detention because the detention had expired. 230 F.3d 226, 230 (6th Cir. 2000). In
Muhammad v. Close, however, the Supreme Court reversed Huey and stated that “[t]his case is no
occasion to settle the issue” of whether Heck’s favorable-termination requirement applies to § 1983
plaintiffs who are habeas ineligible. 540 U.S. 749 (2004).
        Although we have not yet definitively weighed in on the interplay between Heck and
Spencer, our sister circuits are divided on the question. Four circuits, including the First, Third,
Fifth, and Eighth Circuits, have rejected Justice Souter’s analysis and instead have held that § 1983
claimants must comply with Heck’s favorable-termination requirement even if habeas relief was
unavailable to them. These courts have reasoned that to recognize an exception to Heck along the
lines sketched by Justice Souter would amount to an impermissible deviation from Supreme Court
precedent.
         In Figueroa v. Rivera, for example, the appellants brought a § 1983 action on behalf of a
convicted murderer, Rios, who had died in prison. 147 F.3d 77, 79 (1st Cir. 1998). Rios had filed
a habeas petition in federal district court but the district court dismissed it as moot following his
death. Id. at 79-80. The First Circuit acknowledged that Rios “was attempting to impugn his
conviction when death intervened,” but it nonetheless determined that Heck barred the appellants’
§ 1983 suit because Rios’s conviction had not been set aside in a prior proceeding. Id. at 80-81.
Even though Spencer “may cast doubt upon the universality of Heck’s ‘favorable termination’
requirement,” the First Circuit reasoned that it was bound to apply Supreme Court precedent, “even
if that precedent appears weakened by pronouncements in its subsequent decisions,” because only
the Supreme Court has the authority to overrule its own decisions. Id. at 81 n.3 (citing Agostini v.
Felton, 521 U.S. 203 (1997)); see also Entzi v. Redmann, 485 F.3d 998, 1003 (8th Cir. 2007)
(declining to read Spencer to allow a former prisoner to maintain his § 1983 action on the grounds
that Heck did not differentiate between prisoners and habeas-ineligible former prisoners for purposes
of applying the favorable-termination rule and no Supreme Court decision had “explicitly
overrule[d]” Heck); Gilles v. Davis, 427 F.3d 197, 209-10 (3d Cir. 2005) (declining to recognize a
Heck exception for a habeas-ineligible plaintiff on the grounds that the court had no authority to
question Heck’s “continued validity”); Randell v. Johnson, 227 F.3d 300, 301-02 (5th Cir. 2000)
(declining to recognize a Heck exception for a § 1983 plaintiff who was no longer imprisoned
because it is not the prerogative of a lower federal court to “announce for the Supreme Court that
it has overruled one of its decisions”).
        We disagree with the reasoning of our sister circuits who have decreed themselves bound
by Heck to the exclusion of Justice Souter’s comments in his Heck and Spencer concurrences. These
courts have mistaken the ordinary rule refinement that appellate courts necessarily engage in for an
improper departure from binding Supreme Court precedent. The Heck Court was not confronted
with a factual scenario like Powers’s, in which the § 1983 claimant has no recourse in habeas and
No. 06-3460           Powers v. Hamilton County Public Defender Comm’n, et al.                 Page 7


thus cannot have his conviction or sentence set aside by a federal court. The plaintiff in Heck was
still incarcerated and so could have sought habeas relief. Thus, adopting Justice Souter’s rationale
does not amount to a failure to follow Heck where Heck offered no binding guidance on the
application of the favorable-termination requirement to the circumstances here. Moreover, the only
way to side with those circuits that have enforced the favorable-termination requirement against
habeas-ineligible plaintiffs is to altogether ignore Spencer, in which five justices (four in
concurrence and one in dissent) agreed that Heck did not extend that far. Casting Spencer aside is
something we decline to do.
        We are persuaded by the logic of those circuits that have held that Heck’s favorable-
termination requirement cannot be imposed against § 1983 plaintiffs who lack a habeas option for
the vindication of their federal rights. Most analogous to Powers’s case is Leather v. Ten Eyck, in
which the Second Circuit concluded that the plaintiff’s § 1983 suit could proceed despite non-
compliance with the favorable-termination requirement because the plaintiff had been assessed only
a monetary fine in his criminal proceeding and thus was ineligible for habeas relief. 180 F.3d 420,
424 (2d Cir. 1999). The Ninth and Eleventh Circuits also have dispensed with the favorable-
termination requirement where habeas is unavailable. See Nonnette v. Small, 316 F.3d 872, 875-77
(9th Cir. 2002) (declining to apply the favorable-termination requirement where the plaintiff could
not pursue habeas relief because he had been released from jail); Harden v. Pataki, 320 F.3d 1289,
1298-99 (11th Cir. 2003) (declining to apply the favorable-termination requirement where the
plaintiff could not pursue habeas relief to challenge extradition procedures because the plaintiff had
already been extradited).
        These Circuits have the better-reasoned view. Powers was fined for his reckless-driving
misdemeanor and then imprisoned for at least one, but not more than thirty, days for his failure to
pay the fine. Under these circumstances, there is no way that Powers could have obtained habeas
review of his incarceration. This is precisely the kind of situation that Justice Souter had in mind
when he argued in Heck and Spencer that the favorable-termination requirement could not be
deployed to foreclose federal review of asserted deprivations of federal rights by habeas-ineligible
plaintiffs. Accordingly, we join the Second, Ninth, and Eleventh Circuits in holding that the
favorable-termination requirement poses no impediment to Powers’s § 1983 claims.
       3.      Heck Is Inapplicable Because Powers Challenges the Procedures that Led to his
               Incarceration, and not his Underlying Conviction or the Duration of his Sentence
         Besides being exempt from Heck’s favorable-termination requirement because he could not
have obtained habeas relief, we hold that Powers is exempt for a second reason. We agree with the
district court’s conclusion that Powers need not comply with the favorable-termination requirement
because he alleges that his constitutional rights were violated as a result of improper procedures, not
that his underlying conviction or jail sentence was improper. In two cases following Heck, the
Supreme Court distinguished between § 1983 challenges to judgments and § 1983 challenges to the
procedures that led to those judgments.
         In Edwards v. Balisok, Edwards was a state prison inmate who filed a § 1983 action on the
grounds that the procedures used in a prison disciplinary hearing deprived him of his due-process
rights because the hearing officer was improperly biased against him. 520 U.S. 641 (1997). The
Court described Edwards’s claim as “posit[ing] that the procedures were wrong, but not necessarily
that the result was.” Id. at 645. Moreover, the Court stated that “[t]he distinction between these two
sorts of claims is clearly established in our case law . . . .” Id.
       Although the Court approved of an analytical framework that would remove procedure-based
challenges from Heck’s ambit, it nonetheless concluded that Edwards’s claim was not cognizable.
The Court held that if Edwards prevailed in his § 1983 suit by proving that the hearing officer was
No. 06-3460           Powers v. Hamilton County Public Defender Comm’n, et al.                  Page 8


indeed biased against him, such an outcome would implicitly negate the judgment in the disciplinary
proceeding, even if there otherwise was sufficient evidence to support that judgment. Id. at 647.
This was true because “[a] criminal defendant tried by a partial judge is entitled to have his
conviction set aside, no matter how strong the evidence against him.” Id. Thus, Balisok cautions
courts to scrutinize “the nature of the challenge to the proceedings” because even challenges to
procedures “could be such as necessarily to imply the invalidity of the judgment.” Id. at 645.
        In Wilkinson v. Dotson, the Supreme Court affirmed the en banc judgment of this Court,
giving the green light to two § 1983 cases challenging parole-hearing procedures. 544 U.S. 74
(2005). The plaintiffs in Wilkinson were two Ohio inmates serving lengthy jail sentences. Id. at 76.
Both were denied parole on the basis of 1998 parole guidelines but argued that the guidelines in
effect in the year in which they were convicted should have been used instead. Id. at 76-77. One
plaintiff further argued that there were too few board members present at his parole hearing and that
he was denied an opportunity to speak. Id. at 77. The plaintiffs alleged that these procedures
violated the Constitution’s Ex Post Facto and Due Process Clauses. Id. at 76-77.
        The Supreme Court held that the suits could proceed in part because if the prisoners were
successful, they would be entitled only to new parole hearings at which constitutionally proper
procedures would be used (the prisoners sought declaratory and injunctive relief, not damages). Id.
at 82. Success did not “necessarily imply the invalidity of their convictions or sentences,” or for that
matter, of the parole board’s judgment declining to release them. Id.
        Balisok and Wilkinson establish that Powers need not comply with Heck’s favorable-
termination requirement. To prevail in his § 1983 suit, Powers must show that he was not afforded
an indigency hearing to which he had a constitutional right before being committed to jail. If he
succeeds, the resulting judgment in his favor would in no way impugn his conviction for reckless
driving. A conclusion that the procedures, or rather the lack of procedures, that culminated in
Powers’s incarceration violated his constitutional rights has nothing to do with the propriety of his
underlying conviction. Indeed, the only aspect of Powers’s criminal proceedings that could possibly
be regarded as vulnerable to a collateral judgment of invalidity is the municipal court’s order
sending Powers to jail for non-payment of the fine. Even here, however, if Powers succeeds in his
§ 1983 suit, that means only that the failure to grant Powers an indigency hearing was wrongful, not
that the order committing him to jail was wrongful. See McKithen v. Brown, 481 F.3d 89, 102-03
(2d Cir. 2007) (holding that the favorable-termination requirement did not bar a § 1983 action
seeking DNA testing of evidence because if the plaintiff prevailed on his § 1983 claims, he would
be entitled only to production of the evidence for testing, and “[s]uch testing, of course, ‘necessarily
implies nothing at all about the plaintiff’s conviction’”) (quoting Harvey v. Horan, 285 F.3d 298,
308 (4th Cir. 2002)); see also Ballard v. Burton, 444 F.3d 391 (5th Cir. 2006) (holding that the
favorable-termination requirement did not bar a § 1983 claim for excessive force because a
conclusion that the defendant’s use of force was objectively unreasonable would not necessarily call
into question the plaintiff’s criminal conviction for assault). Powers’s incarceration is not
“necessarily invalid” because Powers may have willfully refused to pay a fine he was capable of
paying, rather than having been actually impecunious. Nelson v. Campbell, 541 U.S. 637, 647
(2004) (“[W]e were careful in Heck to stress the importance of the term ‘necessarily.’”). This we
cannot guess at precisely because Powers did not get an indigency hearing.
         Decisions from other Circuits holding that Heck does not bar § 1983 challenges to extradition
procedures support Powers’s position. In Harden, for example, the plaintiff argued that he was
extradited from Georgia to New York in violation of his due-process rights because he was denied
a pre-extradition habeas hearing. Harden, 320 F.3d at 1292. In addition to concluding that the
favorable-termination requirement did not apply because Harden was prevented from seeking habeas
relief (the extradition had already occurred), the Eleventh Circuit held that “Heck does not bar purely
procedural claims brought under § 1983.” Id. at 1295. Harden’s claims were procedural in nature
No. 06-3460           Powers v. Hamilton County Public Defender Comm’n, et al.                 Page 9


because if he succeeded in proving that the extradition procedures were unconstitutional, that did
not mean his conviction and sentence for the crime for which he was extradited were invalid:
“[E]xtradition procedures, even if they violate federal rights, have no bearing, direct or implied, on
the underlying guilt or innocence of the person extradited.” Id. at 1297; see also Weilburg v.
Shapiro, 488 F.3d 1202 (9th Cir. 2007) (holding that because the plaintiff’s allegations challenging
the procedures used to extradite him from Arizona to Illinois would not affect his underlying
conviction, Heck did not apply). The same rationale applies to Powers’s situation. The Public
Defender’s alleged practice of not requesting indigency hearings has no bearing on Powers’s guilt
or innocence in failing to pay his court-ordered fine.
       Accordingly, we hold that because Powers challenges the procedures that led to his
incarceration and not the incarceration itself, Powers need not comply with the favorable-termination
requirement.
C.     Powers’s § 1983 Action is not Barred by the Younger Abstention Doctrine or the
       Rooker-Feldman Doctrine
       The Public Defender argues that considerations of comity require the dismissal of Powers’s
§ 1983 claims. Invoking the Younger abstention doctrine and the Rooker-Feldman doctrine, the
Public Defender says that allowing Powers’s case to proceed will upset the proper relationship
between the federal and state courts by permitting undue federal intrusiveness into the final
judgments of a state court. The Public Defender is wrong.
        The Younger abstention doctrine prevents federal courts from “stay[ing] or enjoin[ing]
pending state court proceedings except under special circumstances.” Younger v. Harris, 401 U.S.
37, 41 (1971). Younger only comes into play when three requirements are satisfied, including that
there is an “on-going state judicial proceeding[]” running parallel to the federal action. Squire v.
Coughlan, 469 F.3d 551, 555 (6th Cir. 2006). Here, Powers’s proceedings in the state court have
long since concluded and he has no competing action pending there. The Younger abstention
doctrine therefore is inapplicable because there are no proceedings in the state courts for the federal
courts to defer to.
        The Rooker-Feldman doctrine bars parties that have lost in state court from filing suit in
federal district courts for the purpose of obtaining review of the adverse state-court judgments.
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462
(1983); Johnson v. DeGrandy, 512 U.S. 997, 1005-06 (1994) (Rooker-Feldman prevents an
unsuccessful state-court party “from seeking what in substance would be appellate review of the
state judgment in a United States district court, based on the losing party’s claim that the state
judgment itself violates the loser’s federal rights”).
        The Rooker-Feldman doctrine has no bearing on Powers’s claims because he does not allege
that he was deprived of his constitutional rights by the state-court judgment, but rather by the Public
Defender’s conduct in failing to ask for an indigency hearing as a prerequisite to his incarceration.
Assertions of injury that do not implicate state-court judgments are beyond the purview of the
Rooker-Feldman doctrine. See McCormick v. Braverman, 451 F.3d 382, 392-93 (6th Cir. 2006)
(holding Rooker-Feldman inapplicable because the plaintiff did not attack the state-court judgments
but “assert[ed] independent claims that those state court judgments were [improperly] procured by”
the defendants); Todd v. Weltman, Weinberg, & Reis Co., L.P.A., 434 F.3d 432, 436-37 (6th Cir.
2006) (holding Rooker-Feldman not triggered because the plaintiff did not allege that he was injured
by the state-court judgment, but instead filed an independent federal claim that he was injured by
the defendant’s filing of a false affidavit in the state-court proceeding).
       For these reasons, we reject the Public Defender’s Younger and Rooker-Feldman arguments.
No. 06-3460           Powers v. Hamilton County Public Defender Comm’n, et al.                  Page 10


D.      The District Court Erred in Granting Summary Judgment for Powers
        In this section, we consider whether Powers is entitled to summary judgment in light of the
requirements for establishing a § 1983 municipal-liability claim. We agree with Powers (1) that he
has alleged a violation of a right protected by the Constitution, (2) that the Public Defender caused
the alleged violation, and (3) that the Public Defender acted under color of state law in doing so.
However, we reverse and remand the district’s court grant of summary judgment because we
conclude that, even assuming Powers has carried his evidentiary burden with respect to showing that
the Public Defender has a policy or custom of failing to request indigency hearings, the Public
Defender has raised a genuine question of material fact about the existence of the purported policy
or custom, making summary judgment for Powers inappropriate.
        1.      The Requirements of a § 1983 Municipal-Liability Claim
        Section 1983 imposes liability against
                [e]very person who, under color of any statute, ordinance, regulation,
                custom, or usage, of any State or Territory or the District of
                Columbia, subjects, or causes to be subjected, any citizen of the
                United States or other person within the jurisdiction thereof to the
                deprivation of any rights, privileges, or immunities secured by the
                Constitution and laws . . . .
42 U.S.C. § 1983.
        “[We] engage[] in a two-pronged inquiry when considering a municipal-liability claim.”
Cash v. Hamilton County Dep’t of Adult Prob., 388 F.3d 539, 542 (6th Cir. 2004). We first ask
whether the plaintiff has asserted the deprivation of a right guaranteed by the Constitution or federal
law. Id.; Alkire v. Irving, 330 F.3d 802, 813 (6th Cir. 2003). Second, we analyze whether the
alleged deprivation was caused by the defendants acting under color of state law. Cash, 388 F.3d
at 542; Alkire, 330 F.3d at 813.
        A municipality cannot be liable for the constitutional torts of its employees; that is, it cannot
be liable on a respondeat superior theory. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978).
Rather, liability will attach only where the plaintiff establishes that the municipality engaged in a
“policy or custom” that was the “moving force” behind the deprivation of the plaintiff’s rights. Id.
at 694; see also Doe v. Claiborne County, 103 F.3d 495, 507 (6th Cir. 1996) (“Under Monell, the
[defendants] cannot be found liable unless the plaintiff can establish that an officially executed
policy, or the toleration of a custom . . . leads to, causes, or results in the deprivation of a
constitutionally protected right.”).
        The Monell Court described a municipal policy as including “a policy statement, ordinance,
regulation, or decision officially adopted and promulgated . . . .” 436 U.S. at 690. An actionable
“custom,” in contrast, “has not received formal approval through . . . official decisionmaking
channels.” Id. at 690-91. A § 1983 plaintiff may establish the existence of a custom by showing
that policymaking officials knew about and acquiesced in the practice at issue. Memphis, Tenn.
Area Local, Am. Postal Workers Union v. City of Memphis, 361 F.3d 898, 902 (6th Cir. 2004).
        Where a municipal-liability claim is premised on an “inaction theory,” the plaintiff must
prove (1) the existence of a clear and persistent pattern of violating federal rights (in this case,
failing to request indigency hearings); (2) notice or constructive notice on the part of defendants;
(3) the defendants’ tacit approval of the unconstitutional conduct, such that their deliberate
indifference in failing to act can be said to amount to an official policy of inaction; and (4) that the
defendants’ custom was the “moving force,” or direct causal link for the constitutional deprivation.
No. 06-3460           Powers v. Hamilton County Public Defender Comm’n, et al.                Page 11


Doe, 103 F.3d at 508; see also Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005)
(applying Doe factors where the plaintiff alleged that the Chattanooga police department had a
custom of tolerating the use of excessive force against detained suspects); Garretson v. City of
Madison Heights, 407 F.3d 789, 796 (6th Cir. 2005) (applying Doe factors where the plaintiff
alleged that the city had a custom of failing to provide medical treatment to pre-arraignment
detainees).
       2.      Powers Has Asserted the Deprivation of a Federal Right
        Powers alleges that the Public Defender’s failure to request an inquiry into his ability to pay
the court-ordered fine before he was jailed violated his Fifth, Sixth, and Fourteenth Amendment
rights. Under the first prong of a § 1983 municipal-liability claim, we must evaluate whether these
rights are federally protected such that, if proven, § 1983 will provide relief for their infringement.
See Doe, 103 F.3d at 506 (stating that the Court’s task was to “examin[e] the nature of the right
claimed to have been infringed upon”—the right to be free from sexual abuse at the hands of a state
actor—to determine whether it was embodied by the Fourteenth Amendment); Cash, 388 F.3d at
542 (commenting that “[t]here can be little doubt” that the plaintiff homeless persons had a
constitutionally protected right in their personal belongings, which were taken and discarded
pursuant to a municipal program).
         The Public Defender does not dispute that Powers has satisfied the first prong of establishing
§ 1983 liability, nor can it: In Bearden v. Georgia, the Supreme Court held that a state may not
“impose a fine as a sentence and then automatically convert it into a jail term solely because the
defendant is indigent and cannot forthwith pay the fine in full.” 461 U.S. 660, 667 (1983). The
Bearden Court went on to hold that “fundamental fairness” requires a court to inquire into whether
a criminal defendant is able to pay a fine. Id. at 673; see also Alkire, 330 F.3d at 816-17 (citing
Bearden and holding that a criminal defendant’s right to a judicial inquiry into his ability to pay a
fine is well established by the Fourteenth Amendment). Ohio has codified this requirement at Ohio
Revised Code (“O.R.C.”) § 2947.14, which provides that a hearing as to the offender’s ability to pay
the fine shall be conducted at the time of sentencing and that a court’s conclusion that the offender
is able to pay “shall be supported by findings of fact set forth in a judgment entry that indicate the
offender’s income, assets, and debts . . . .” See also State v. Meyer, 706 N.E.2d 378 (Ohio Ct. App.
1997) (holding that the duty to conduct a hearing is not triggered until the court seeks to enforce the
imposition of a fine by ordering the defendant imprisoned).
       Because there is no dispute that Powers has asserted the deprivation of a federal right, the
next and more complex question is whether the Public Defender caused Powers’s injury.
       3.      The Public Defender Was the “Moving Force” Behind the Violation of Powers’s
               Constitutional Rights
        As described above, a § 1983 plaintiff must show that the defendant was the “moving force”
behind the alleged deprivation of his federal rights. Monell, 436 U.S. at 694. At bottom, this is a
causation inquiry, requiring the plaintiff to show that it was the defendant’s custom or policy that
led to the complained of injury. Garner, 8 F.3d 358, 363-64 (6th Cir. 1993).
       Traditional tort concepts of causation inform the causation inquiry on a § 1983 claim.
McKinley v. City of Mansfield, 404 F.3d 418, 438 (6th Cir. 2005). Thus, we must consider whether
the Public Defender’s failure to request an indigency hearing was both the cause in fact and the
proximate cause of the denial of Powers’s right to an indigency hearing prior to his incarceration for
the unpaid fine.
No. 06-3460            Powers v. Hamilton County Public Defender Comm’n, et al.                  Page 12


                (a)     Cause in Fact
         First, we have no trouble concluding that the Public Defender’s failure to act was the cause
in fact of Powers’s injury. Cause in fact is typically assessed using the “but for” test, which requires
us to imagine whether the harm would have occurred if the defendant had behaved other than it did.
David W. Robertson, The Common Sense of Cause in Fact, 75 Tex. L. Rev. 1765, 1768-69 (1997).
“Conduct is the cause in fact of a particular result if the result would not have occurred but for the
conduct. Similarly, if the result would have occurred without the conduct complained of, such
conduct cannot be a cause in fact of that particular result.” Butler v. Dowd, 979 F.2d 661, 669 (8th
Cir. 1992).
        Here, “but for” the Public Defender’s failure to move for an indigency hearing, Powers
would have received a hearing. Of course, we cannot conclude with absolute certainty that the
municipal court would have granted Powers’s motion. Robertson, 75 Tex. L. Rev. at 1774
(commenting that a showing of cause in fact does not require mathematical proof). Neither can we
presume, however, that had the Public Defender advised the court that the Constitution forbids the
jailing of a defendant on a fine without a judicial determination as to the defendant’s ability to pay,
that the court would have ignored this command. For these reasons, we conclude that the Public
Defender was the cause in fact of the deprivation of Powers’s rights.
                (b)     Proximate Cause
       The thornier question is whether the Public Defender’s failure to act proximately caused
Powers’s injury. Proximate cause “is not about causation at all but about the appropriate scope of
responsibility.” Dobbs on Torts § 181. Proximate-cause analysis is a kind of line-drawing exercise
in which we ask whether there are any policy or practical reasons that militate against holding a
defendant liable even though that defendant is a but-for cause of the plaintiff’s injury. Id.
         The Supreme Court has stated that “§ 1983 ‘should be read against the background of tort
liability that makes a man responsible for the natural consequences of his actions.’” Malley v.
Briggs, 475 U.S. 335, 345 (1986) (quoting Monroe v. Pape, 365 U.S. 167, 187 (1961)). Relying on
this language, courts have framed the § 1983 proximate-cause question as a matter of foreseeability,
asking whether it was reasonably foreseeable that the complained of harm would befall the § 1983
plaintiff as a result of the defendant’s conduct. Even if an intervening third party is the immediate
trigger for the plaintiff’s injury, the defendant may still be proximately liable, provided that the third
party’s actions were foreseeable. See, e.g., Kerman v. City of New York, 374 F.3d 93, 126-27 (2d
Cir. 2004) (holding that even where it was a hospital’s doctors who decided to admit the plaintiff
for psychiatric observation, the police officer who took the plaintiff to the hospital was nonetheless
subject to liability under § 1983 because it was foreseeable that the plaintiff would be detained at
the hospital as a result of the officer’s taking him there); Warner v. Orange County Dept. of
Probation, 115 F.3d 1068, 1072-74 (2d Cir. 1996) (holding that in recommending that the plaintiff
be sentenced to an alcohol-treatment program that incorporated religious elements, a probation
department could be held liable under § 1983 for violating the plaintiff’s First Amendment rights,
even though a judge made the sentencing decision).
        Powers argues that it was reasonably foreseeable that he would be jailed without an
indigency hearing when his counsel did not move for such a hearing, and that therefore the Public
Defender was the proximate cause of his injury. In contrast, the Public Defender argues that the
duty to hold the indigency hearing rested exclusively with the municipal judge, irrespective of the
No. 06-3460               Powers v. Hamilton County Public Defender Comm’n, et al.                             Page 13


quality of the Public Defender’s representation. Therefore, contends the Public  Defender, the
municipal judge was the “moving force” behind the violation of Powers’s rights.1
        We reject the Public Defender’s attempt to evade liability by shifting to the municipal judge
all responsibility for the alleged infringement of Powers’s rights. As an initial matter, courts do not
typically issue rulings on matters not brought to their attention by the parties, and in some instances,
it may even be improper for courts to do so. Galvan v. Ala. Dep’t of Corr., 397 F.3d 1198, 1204 (9th
Cir. 2005) (“Courts generally do not decide issues not raised by the parties.”). Moreover, busy
judges, faced with lengthy and growing dockets, necessarily must rely on litigants to present the
relevant facts and law governing the disputes that the judges are asked to resolve. Powers is
therefore right when he contends that the Public Defender’s silence about his asserted indigency
made it reasonably foreseeable that he would be jailed for non-payment of his fine without having
received an indigency hearing.
         We recognize that in some circumstances, the actions of a judge may sever the chain of
causation between a plaintiff’s injury and a defendant’s wrongdoing. See, e.g., Townes v. City of
New York, 176 F.3d 138, 146 (2d Cir. 1999) (holding that police officers could not be held liable for
an illegal search and seizure because the plaintiff’s injury was proximately caused by the trial
judge’s error in failing to suppress the seized evidence). Thus, even if it is foreseeable that a
defendant’s conduct will lead to the complained of harm, a defendant may be able to avoid § 1983
liability by pointing to the intervening action of a judge as the proximate cause of the plaintiff’s
injury. This rule has grown out of the general tort principle that “an intervening act of a third party,
which [causes harm] after the first person’s wrongful act has been committed, is a superseding cause
which prevents the first person from being liable [even though the first person’s conduct] was a
substantial factor in bringing about” the harm. Egervary v. Young, 366 F.3d 238, 246 (3d Cir. 2004)
(citing Restatement (Second) of Torts § 440-41 (1965)).
         To determine whether a judicial act constitutes a superseding cause that relieves a defendant
of liability, our sister circuits have distinguished between judicial orders that are predicated on the
misrepresentation or omission of material facts, on the one hand and, on the other hand, judicial
orders that are made after a full presentation of the facts, but are nonetheless legally erroneous. In
the first case, the inaccurate portrayal of the factual circumstances subjects the defendant to § 1983
liability. Only in the latter case, where the defendant has fully apprised the judge of the material
facts, but the judge has misapplied the law, will the defendant be shielded from liability. Two cases
illustrate the point.
        In Egervary, the plaintiff father brought a Bivens action (the § 1983 counterpart for actions
against federal officials) against the defendants, his estranged wife’s attorneys. The plaintiff argued
that the defendants violated his due-process rights by persuading a judge to enter an order
authorizing the removal of the plaintiff’s son to Hungary, where the plaintiff’s wife was living, in
the absence of any hearing at which the plaintiff could contest the loss of custody. The Third Circuit
stated that “[t]he purported misrepresentation here . . . is a legal one and not an inadequate or false
representation of the factual basis upon which the legal ruling depended.” Egervary, 366 F.3d at
249. Because the judge had not been “misled in some manner as to the relevant facts,” but instead
had made a legal error for which “the judge and the judge alone was responsible,” the Egervary
Court held that the judge’s order constituted a superseding cause that broke the chain of causation,
thereby preventing the defendants from being held liable.



         1
          Powers did not sue the municipal court judge who ordered him jailed presumably because any such claim
would have been dismissed since judges enjoy absolute immunity for actions carried out pursuant to their official duties.
Stump v. Sparkman, 435 U.S. 349 (1978).
No. 06-3460           Powers v. Hamilton County Public Defender Comm’n, et al.                  Page 14


        Similarly, in Murray v. Earle, the plaintiff brought suit on the grounds that the defendants
violated her Fifth Amendment rights by illegally interrogating her. 405 F.3d 278 (5th Cir. 2005).
The defendants argued that they could not be held liable because the plaintiff’s injury was
proximately caused by the trial judge’s decision to admit her confession into evidence, not their
unlawful interrogation. The Fifth Circuit agreed. The court stated that “[the plaintiff] has not
identified, and we have not found, any evidence in the record to indicate that the state judge who
presided over her juvenile trial failed to hear (or was prevented from hearing) all of the relevant facts
surrounding her interrogation before deciding to admit her confession into evidence.” Id. at 294.
Therefore, because the plaintiff’s injury was caused by the trial judge’s erroneous failure to suppress
her confession, the defendants were shielded from liability, notwithstanding their own wrongful
conduct. But cf. Malley, 475 U.S. at 345 (holding that a police officer who applied for a warrant
without probable cause could not evade liability under § 1983 for the unlawful arrest by arguing that
it was the judge’s issuance of the warrant that caused the plaintiff’s injury, rather than the officer’s
conduct).
         Here, there is no dispute that the Public Defender did not present the municipal judge with
any information about Powers’s financial status. Without the Public Defender stepping forward to
alert the court to Powers’s alleged indigency, the court had no way of knowing that indigency was
an issue germane to its sentencing determination. True, the municipal judge had a duty to
independently ascertain the relevant governing law, i.e., to know that he could not commit Powers
to jail for non-payment of a fine if Powers was actually indigent. But the municipal judge did not
have an independent duty to unearth facts establishing whether Powers was indeed indigent. Such
a factual investigation was the responsibility of Powers’s counsel. It was the Public Defender’s duty
to marshal the facts establishing Powers’s indigency including, under Ohio law, Powers’s income,
assets, and debts, and bring them to the attention of the municipal court. O.R.C. § 2947.14. Having
failed to do so, the Public Defender left the municipal judge with the misleading impression that
Powers’s financial circumstances did not need to be investigated prior to incarcerating him on the
unpaid fine. We hold, therefore, that the municipal court’s commitment order did not break the
chain of causation. The Public Defender may be held liable as the proximate cause of Powers’s
injury.
        4.      The Public Defender Acted Under Color of State Law
        The Public Defender argues that it is not a state actor for purposes of § 1983 liability, see
Georgia v. McCollum, 505 U.S. 42, 53 n.9 (1992) (stating that the “state actor” and “acting under
color of state law” inquiries are the same), because, under Polk County v. Dodson, 454 U.S. 312, 325
(1981), public defenders do not “act under color of state law when performing a lawyer’s traditional
functions as counsel to a defendant in a criminal proceeding.” Reasoning that requesting indigency
hearings is among these “traditional functions”—similar to “enter[ing] ‘not guilty’ pleas, mov[ing]
to suppress State’s evidence, object[ing] to evidence at trial, cross-examin[ing] State’s witnesses,
and mak[ing] closing arguments in behalf of defendants”—the Public Defender contends that it is
immune to liability. Polk County, 454 U.S. at 320.
        The Public Defender reads the holding of Polk County too broadly. The issue there was
whether an individual attorney, employed by the county public-defender agency, acted under color
of state law in her representation of the defendant. The Supreme Court rejected the argument that
a public defender is a state actor merely because he or she is an employee of the state. Id. at 319-22.
Moreover, the Supreme Court held that our adversarial system of justice and a lawyer’s ethical
duties to a client compel the conclusion that a public defender is not an instrument of the state, but
an independent agent of the client’s interests. Id.
        Significantly, the Polk County Court did not hold that a public defender never acts under
color of state law. See McCollum, 505 U.S. at 54 (“the determination whether a public defender is
No. 06-3460            Powers v. Hamilton County Public Defender Comm’n, et al.                  Page 15


a state actor for a particular purpose depends on the nature and context of the function he is
performing”). Indeed, the Court articulated two propositions that are relevant here. First, the Court
stated that “[i]t may be . . . that a public defender also would act under color of state law while
performing certain administrative and possibly investigative functions.” Polk County, 454 U.S. at
325. Second, the Court noted that, in addition to his particular public defender, the plaintiff had
named as defendants Polk County, the Polk County Offender Advocate (the equivalent of the Public
Defender here), and the Polk County Board of Supervisors. Id. at 325-26. The Court held that
although the plaintiff’s pleading was insufficient to state a § 1983 claim for relief against the County
defendants, it left open the possibility that the result might have been different had the plaintiff
alleged the existence of an unconstitutional policy. Id. at 326.
       The first question then is whether the Public Defender’s purported policy of failing to seek
indigency hearings on behalf of its clients falls within the “administrative” exception alluded to in
Polk County. We conclude that it does.
        Powers alleges that the Public Defender engages in an across-the-board policy or custom of
doing nothing to protect its indigent clients’ constitutional rights not to be jailed as a result of their
inability to pay court-ordered fines. Unlike the plaintiff in Polk County, Powers does not seek to
recover on the basis of the failures of his individual counsel, but on the basis of an alleged agency-
wide policy or custom of routinely ignoring the issue of indigency in the context of non-payment
of fines. Although we acknowledge that requesting indigency hearings is within a lawyer’s
“traditional functions,” the conduct complained of is nonetheless “administrative” in character for
the reasons already described: Powers maintains that the Public Defender’s inaction is systemic and
therefore carries the imprimatur of administrative approval.
        It is by no means clear that the Supreme Court intended to suggest a strict dichotomy
between “administrative” practices of a public defender that may be deemed state action and
“traditional functions” of a public defender, which may not. Stated differently, we do not read Polk
County to mean that in using the term “administrative,” the Supreme Court meant to limit a finding
of state action only to managerial tasks, such as hiring, firing, and resource allocation, which are
different in kind from the “traditional functions” of a lawyer representing a client. See Polk County,
454 U.S. at 325 (citing Branti v. Finkel, 445 U.S. 507 (1980) for the proposition that a public
defender acts under color of state law when making hiring and firing decisions); Miranda v. Clark
County, Nevada, 319 F.3d 465 (9th Cir. 2003) (en banc) (holding that a public defender acted under
color of state law in allocating resources to cases based on the results of polygraph tests routinely
administered to clients). If that were the case, then a public-defender agency that adopted a policy,
or acquiesced to a custom, of refusing to cross-examine the State’s witnesses would be immune to
§ 1983 liability—notwithstanding the obvious unconstitutionality of such a policy or
custom—because cross-examining witnesses falls within the “traditional functions” of a lawyer.
        Any doubt about whether the alleged policy or custom here constitutes state action is
eliminated by the second consideration articulated in Polk County. As mentioned above, the
Supreme Court did not decide whether the defendant in Polk County would have satisfied the state-
action requirement if he had pleaded the existence of an unconstitutional policy. Here, Powers has
done that very thing. He argues that the Public Defender systematically violates class members’
constitutional rights by failing to represent them on the question of indigency. Given the reasoning
of Polk County, it makes sense to treat this alleged policy or custom as state action for purposes of
§ 1983. The existence of such a policy, if proven, will show that the adversarial relationship
between the State and the Public Defender—upon which the Polk County Court relied heavily in
determining that the individual public defender there was not a state actor—has broken down such
that the Public Defender is serving the State’s interest in exacting punishment, rather than the
interests of its clients, or society’s interest in fair judicial proceedings.
No. 06-3460                 Powers v. Hamilton County Public Defender Comm’n, et al.                                  Page 16


         For these reasons, we hold that Powers satisfies the state-action requirement.
         5.        The Record Reveals a Genuine Issue of Material Fact Regarding the Existence of the
                   Alleged Policy or Custom
         In its order denying summary judgment for the Public Defender, the district court stated that
“it is clear to the Court that the Public Defender Commission and the Hamilton County Public
Defender had a well-settled custom or policy of not asking for an indigency hearing before a
probationer is incarcerated for failure to pay a fine.” (Class Cert./Summary Judgment Order at 13-
14.) In ruling on Powers’s motion for summary judgment, the district court stood by its earlier
conclusion, commenting: “Defendants have failed to raise a genuine issue of material fact as to the
existence of such a policy . . . There is no question in the Court’s view that indigent defendants
represented    by the Hamilton County Public Defender were jailed on fines that they were unable to
pay.”2 (Order on Powers’s Motion for Summary Judgment at 19.)
        To establish the existence of the alleged policy or custom, Powers presented several different
types of evidence, including the record of the proceedings in his own case, affidavit testimony about
what the “judges’ sheets” in numerous 3cases show, seven transcripts of court proceedings, and an
excerpt from judicial meeting minutes. Each of these will be discussed in turn.
        First, the record in Powers’s own case does not reflect that his counsel asked for a hearing
into his ability to pay the court-ordered fine and costs, either at the entry of his no-contest plea to
the underlying reckless-driving charge, or at the hearing on his probation violation for failing to pay
the fine and costs. (JA 129-32.) Indeed, at Powers’s probation hearing, the judge recited Powers’s
purported probation violations, including the non-payment of the fine and court costs and asked
Powers’s counsel if he had anything to say on behalf of his client. Powers’s counsel responded,
“[n]othing, Judge.” (JA 130.)
        Second, Powers submitted the affidavit testimony of John Weber, who avers that he
researched the cases of persons incarcerated for non-payment of fines by reviewing the records in
their proceedings through the Hamilton County Clerk of Courts office. Weber based his research

         2
           Powers argues that the Public Defender has waived any argument about whether Powers is entitled to summary
judgment as to the existence of the alleged policy or custom because the Public Defender failed to sufficiently develop
this argument in its appellate briefing. We disagree. Although the Public Defender does not explain what inferences
should be drawn in its favor as the non-moving party, it does adequately point to the record evidence tending to show,
in its view, that there is no policy or custom of violating the constitutional rights of its clients by failing to seek indigency
hearings, or that, at a minimum, there is a genuine issue of material fact as to its existence.
         3
           None of Powers’s evidence satisfies the standards of Federal Rule of Civil Procedure 56 for evidence
submitted in support of summary judgment. Rule 56(e) provides as follows: “Supporting and opposing affidavits shall
be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated therein.” Neither the hearing transcripts, nor
the excerpt from the judicial meeting minutes are attached to an affidavit explaining how they were obtained, from
where, or by whom. Similarly, Weber’s affidavit (discussed infra) does not show that he “is competent to testify to the
matters” he describes because he does not identify himself, explain his professional background or skills, or in what
capacity he was serving when he undertook to research the court records he describes. Despite these glaring deficiencies,
we may still consider Powers’s evidence because the Public Defender did not object to its competence below (or on
appeal, for that matter). See Wiley v. United States, 20 F.3d 222, 226 (6th Cir. 1994) (“If a party fails to object before
the district court to the affidavits or evidentiary materials submitted by the other party in support of its position on
summary judgment, any objections to the district court’s consideration of such materials are deemed to have been
waived, and we will review such objections only to avoid a gross miscarriage of justice.”); Carter v. Western Reserve
Psychiatric Habilitation Ctr., 767 F.2d 270, 273 n.2 (6th Cir. 1985) (per curiam) (“Although the district court may have
erred in basing its holding . . . on unsworn affidavits and uncertified copies of documents attached as exhibits to
appellees’ motion for summary judgment, since such materials do not comport with the requirements of Fed. R. Civ. P.
56(e), we are satisfied that essential justice was done.”).
No. 06-3460           Powers v. Hamilton County Public Defender Comm’n, et al.                 Page 17


on a list of persons who were jailed between August 21, 2000, and August 21, 2002, for failure to
pay fines. The list was compiled at the direction of the Hamilton County Prosecutor and produced
to Powers in discovery. The list is twenty-three pages long and Powers says it consists of
approximately 1000 names.
        Weber avers that he researched names on only the first four pages of the list. Weber obtained
the “judges’ sheets” in some unspecified number of cases. These judges’ sheets, according to
Weber, “contain the entries made by the judges” disposing of the matters before them. (JA 142-43.)
Weber testified that in thirty-two cases, the judges’ sheets simply ordered the defendants’
“commit[ed] on fines” and in no case reflected any findings of fact into the offender’s income,
assets, debts, and ability to pay the fine, as required by O.R.C. § 2947.14. (JA 143.)
         Powers submitted the judges’ sheets from four cases, which were presumably retrieved by
Weber pursuant to his research. None of these judges’ sheets reflect an inquiry into the offenders’
ability to pay the court-imposed fine.
       Third, Powers presented seven transcripts of hearings in which the court ordered the
defendants to pay a fine for their infractions, or ordered them jailed for their failure to pay. In no
case do the transcripts show that the defendants’ counsel objected to the imposition of a fine on
indigency grounds or asked for an inquiry into their clients’ ability to pay. One transcript shows that
the defendant’s counsel asked the court to commit his client because the client “[c]an’t afford to
pay.” (JA 148-49.)
         The last piece of evidence Powers submitted was an excerpt from what appear to be meeting
minutes from 1982, in which Judge Timothy Hogan, who chaired the Standing Criminal Committee
at that time, reported on his committee’s efforts to protect against the jailing of indigent persons for
non-payment of fines:
               Judge Hogan informed the Judges assembled of a letter from Robert
               Newman, Legal Aid Director, challenging the incarceration of
               defendants for fines if they are indigent. He reported that Judge
               Albanese had chaired a special committee which met on June 23rd
               and the committee instructed the Court Administrator, Mr.
               Schweiker, to draft a procedure to eliminate the problem.
(JA 74.)
       As described above, the district court concluded that this evidence was sufficient to
unequivocally establish that the Public Defender has a policy or custom of failing to seek indigency
hearings on behalf of its clients threatened with incarceration for non-payment of fines.
         We disagree with the district court and instead conclude that Powers’s evidence is
insufficient to show a “clear and persistent pattern” of abuse that the Defendants knew about and
acquiesced in sufficient to entitle Powers to summary judgment as a matter of law. Doe, 103 F.3d
at 508; but see Alkire, 330 F.3d at 818 (plaintiff’s evidence showing that no ability-to-pay
determination was made in his case or in nine other cases was sufficient to defeat summary
judgment). In particular, it is difficult to assess the probative value of what would seem to be
Powers’s strongest piece of evidence, namely, Weber’s testimony, because Weber’s affidavit is
inartfully drawn. By our count, there are 174 names of incarcerated individuals on the four pages
of the list that Weber consulted. Weber testifies that in thirty-two cases, the judges’ sheets suggest
that no inquiry into the offenders’ ability to pay was conducted. However, Weber does not state that
if indigency hearings were requested or held, the judges’ sheets would be the court record, as
opposed to some other document, that noted this fact. Moreover, Weber does not state (1) whether
he researched the records in the cases of all 174 persons listed and indigency hearings were not held
No. 06-3460           Powers v. Hamilton County Public Defender Comm’n, et al.                Page 18


in only thirty-two, giving rise to the inference that they occurred in the remaining 142 cases;
(2) whether he simply randomly selected thirty-two of the 174 names; or (3) whether he could obtain
information on only thirty-two cases because the court records in the other cases were not available.
In short, without a context as to why Weber’s findings were limited to thirty-two cases, we cannot
conclude that his testimony confirms the existence of the Public Defender’s alleged policy or
custom.
       Although it is clear that Powers has not satisfied his summary judgment burden, the Public
Defender does not controvert any of Powers’s evidence, except for the seven hearing transcripts
Powers submitted. The Public Defender does not dispute that Powers never received an indigency
hearing, nor does the Public Defender challenge Weber’s testimony that the court records in thirty-
two cases between 2000 and 2002 did not reflect any inquiry into the offenders’ ability to pay court-
ordered fines before they were incarcerated for non-payment. As to the seven hearing transcripts,
the Public Defender argues that two of the defendants there were not represented by the Public
Defender, that one defendant’s fine was obviated by jail time already served, and that three other
defendants’ indigence was reported to the court.
        Although it generally does not attack Powers’s evidence, the Public Defender adduced
evidence of its own, which it claims shows that the purported policy does not exist or, at a minimum,
gives rise to a genuine issue of fact as to its existence. The Public Defender’s evidence consists of
affidavit testimony from the current Hamilton County Public Defender and head of the Public
Defender’s office, Lou Stringari, and identical, form affidavits from fourteen Public Defender staff
attorneys. Taken together, this evidence stands for the proposition that assistant public defenders
comply with their professional obligations to advocate on behalf of their clients’ best interests and
that they take into account a myriad of factors in assessing how best to represent a client facing a
monetary penalty. Finally, the Defendants submitted an affidavit from Mary W. Sullivan, the
Chairperson of the Public Defender Commission, in which she avers that the Commission does little
more than oversee the budgetary needs of the Public Defender’s office.
        First, Stringari testifies that he has served as the Hamilton County Public Defender since
1994. He explains that the Office of the Public Defender employs staff attorneys as assistant public
defenders and also contracts with private-sector attorneys “on an on-call basis.” (JA 331.) He
further testifies that,
               The office of the County Public Defender does not direct or control
               the actions of either its staff attorneys or the attorneys operating on
               a contract basis in the municipal division [i.e., the division that
               represents perons charged with misdemeanors in municipal court]
               with respect to tactical decisions made in the representation of
               individual clients. The office expects that each attorney working for
               it will represent their clients in a professional manner and exercise
               independent judgment in the best interest of the represented clients
               consistent with standards established by the Supreme Court of Ohio
               in its Code of Professional Responsibility.
(JA 332.)
        The affidavits submitted by the fourteen assistant public defenders are identical in substance.
All of these attorneys aver that “[w]hen making decisions regarding the representation of an
individual client, I am governed by the best interests of my client and my oath as a lawyer.” (JA
338-379.) They further testify, verbatim, as to the nature of their representation when their clients
are facing fines:
No. 06-3460           Powers v. Hamilton County Public Defender Comm’n, et al.                 Page 19


               When a monetary fine is a component of a sentence the discussion of
               how to proceed includes:
               the ability of the client or someone else to pay the fine and reasons
               for prior non-payment;
               whether they are being held on other charges;
               if the jail is at capacity, a commitment on a fine may result in an
               immediate release;
               resolution of the fine may result in early termination of probation;
               if credited with time served, an immediate release may result;
               the possibility of a commitment concurrent with a jail sentence
               associated with the same or a different offense.
(JA 378-79.)
        Importantly, neither Stringari, nor the individual staff attorneys, testify that they request
indigency hearings where appropriate, including to fend-off possible incarceration for non-payment
of fines. In addition, although the staff attorneys aver that they take into account certain tactical
considerations when their clients are facing monetary penalties, they do not explain if, or how, these
considerations affect their analysis of whether to ask for an indigency hearing. Finally, the Public
Defender did not submit any court records showing that it has sought indigency hearings in order
to counter the court records submitted by Powers showing that it has not.
         As described above, we conclude that Powers has not submitted sufficient evidence entitling
him to summary judgment. Even if his evidence were sufficient, however, we would still reverse
the district court’s judgment on the grounds that the Public Defender has raised a genuine issue of
material fact at to the existence of the purported policy or custom of failing to seek indigency
hearings. Drawing all reasonable inferences in favor of the Public Defender, the Stringari affidavit
and those of the staff attorneys could be read as averring that in some circumstances, the best
interests of the client are served by not seeking an inquiry into his/her ability to pay a court-ordered
fine. For instance, a public defender may counsel her client to accept a commitment on a fine
because the public defender knows that the jail is full and her client therefore will not actually serve
any time. (JA 378 (“if the jail is at capacity, a commitment on a fine may result in an immediate
release”).) Similarly, if jail time on a fine can be served concurrent with another sentence, then
challenging the fine on indigency grounds may only expose the client to an alternative and
additional penalty, such as community service. (JA 378-79 (“the possibility of a commitment
concurrent with a jail sentence associated with the same or a different offense”).) The same analysis
may apply if the client is “being held on other charges.” (JA 378.) Thus, strictly speaking,
defendants may sustain a deprivation of their constitutional rights but, in some proportion of cases,
that deprivation may be immaterial because not asking for an indigency hearing, and simply
accepting a commitment for non-payment of a fine, may be more beneficial to the client than
requesting the hearing. Given the tension here between the constitutional rights at stake and a
lawyer’s ethical duty to represent her client’s best interests, further factual development in the
district court is needed.
      Accordingly, we reverse the district court’s grant of summary judgment for Powers and
remand for further proceedings.
E.      The District Court did not Err in Certifying a Class
        The district court granted Powers’s motion for class certification, concluding that the
requirements spelled out in Federal Rule of Civil Procedure 23 have been satisfied. We review a
class-certification determination for an abuse of discretion. Barney v. Holzer Clinic, Ltd., 110 F.3d
No. 06-3460           Powers v. Hamilton County Public Defender Comm’n, et al.               Page 20


1207, 1213 n.9 (6th Cir. 1997). “A district court that either uses the wrong legal standard or
misapplies the correct legal standard abuses its discretion.” Id. For the reasons described below,
we affirm the district court’s grant of class certification but modify the class definition to exclude
persons who were not represented by the Public Defender.
        A class action cannot be certified unless the numerosity, commonality, typicality, and
adequacy requirements of Rule 23 are met. In other words, the plaintiff must show that (1) the class
is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact
common to the class, (3) the claims or defenses of the class representative are typical of the claims
or defenses of the class, and (4) the representative party will fairly and adequately protect the
interests of the class. Fed. R. Civ. P. 23(a). In addition, the plaintiff must satisfy one of the
subsections of Rule 23(b). Here, Powers moved for certification under Rule 23(b)(3), which
demands a showing that questions of law or fact common to the class predominate over questions
affecting only individual class members.
       The district court certified a class consisting of:
               [a]ll persons who, without an indigency hearing, were committed to
               the custody of a Hamilton County correctional facility by a Hamilton
               County municipal or common pleas court from August 21, 2000, to
               the present in satisfaction of a fine and/or court costs, including
               persons who violated probation following a ‘stay to pay’ sentence.
(Final Judgment Order at 1.)
        On appeal, the Public Defender argues that the district court erred in certifying the class
because Powers has failed to satisfy Rule 23(a)’s commonality and typicality requirements and has
further failed to satisfy Rule 23(b)(3)’s predominance requirement.
         As an initial matter, we conclude that, as presently defined, the class is overbroad because
it is not limited to persons who were represented by the Public Defender, but instead encompasses
“[a]ll persons who, without an indigency hearing, were committed to the custody of a Hamilton
County correctional facility . . . .” The Public Defender cannot be held liable for harm to persons
that it did not cause. Therefore, we will modify the class definition to exclude persons who
proceeded pro se or who were represented by attorneys other than public defenders. See Barney,
110 F.3d at 1214-15 (modifying the class definition on appeal to conform to the parties’ arguments);
In re Chiang, 385 F.3d 256, 268-69, 272 (3d Cir. 2004) (modifying the class definition on appeal
to reflect the plaintiffs’ focus on national-origin discrimination and to eliminate an improper
subjective element of the class definition). Accordingly, the class will now be defined as:
               [a]ll persons who were represented by the Office of the Hamilton
               County Public Defender, and who, without an indigency hearing,
               were committed to the custody of a Hamilton County correctional
               facility by a Hamilton County municipal or common pleas court from
               August 21, 2000, to the present in satisfaction of a fine and/or court
               costs, including persons who violated probation following a ‘stay to
               pay’ sentence.
With this revised class definition in mind, we proceed to consider the Public Defender’s arguments
challenging class certification.
        First, the Public Defender contends, without any explanation, that Powers is not typical of
the class he seeks to represent. To satisfy the typicality requirement, the representative plaintiff’s
interests must be aligned with those of the class. Sprague v. GMC, 133 F.3d 388, 399 (6th Cir.
No. 06-3460            Powers v. Hamilton County Public Defender Comm’n, et al.                  Page 21


1998) (en banc) (citing Herbert B. Newberg & Alba Conte, Newberg on Class Actions, § 3-13, at
3-75, 76 (3d ed. 1992)). “[A] plaintiff’s claim is typical if it arises from the same event or practice
or course of conduct that gives rise to the claims of other class members, and if his or her claims are
based on the same legal theory.” In re Am. Med. Sys., 75 F.3d 1069, 1082 (6th Cir. 1996).
        The Public Defender does not dispute that Powers was committed to jail for failing to pay
a court-ordered fine and that his counsel did not seek an indigency hearing at any time prior to his
incarceration. The Public Defender also does not dispute that the class certified by the district court
consists of similarly situated persons who were incarcerated for their non-payment of fines in the
absence of an inquiry into their ability to pay those fines. It therefore cannot be said that Powers is
not typical of the class he seeks to represent.
       Second, the Public Defender argues that neither the commonality, nor the predominance
requirements are satisfied because there are too many variations in the experiences of individual
class members to make class treatment of their claims appropriate. Notably, the Public Defender
does not explain what these purported “variations” are.
         The commonality requirement is satisfied if there is a single factual or legal question
common to the entire class. Am. Med. Sys., 75 F.3d at 1080. The predominance requirement is met
if this common question is at the heart of the litigation. “[T]he mere fact that questions peculiar to
each individual member of the class action remain after the common questions of the defendant’s
liability have been resolved does not dictate the conclusion that a class action is impermissible.”
Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1197 (6th Cir. 1988). Cases alleging a single
course of wrongful conduct are particularly well-suited to class certification. Id. Here, Powers has
alleged that the Public Defender engaged in an ongoing and regular practice of failing to seek
indigency hearings for criminal defendants facing incarceration for non-payment of fines. Powers
has asserted a single factual theory of wrongdoing and seeks to recover based on the single legal
claim that the Public Defender’s practice violated class members’ due process rights. The
dispositive facts and law are the same as to each class member. This is sufficient to satisfy both the
commonality and predominance requirements.
        Finally, the Public Defender appears to criticize the district court’s repeated modification of
the class definition but does not go so far as to contend that this amounted to reversible error, nor
could it. As demonstrated by our own clarifying revision to the class definition, courts must be
vigilant to ensure that a certified class is properly constituted. More to the point, district courts have
broad discretion to modify class definitions, so the district court’s multiple amendments merely
showed that the court took seriously its obligation to make appropriate adjustments to the class
definition as the litigation progressed. See, e.g. Schorsch v. Hewlett-Packard Co., 417 F.3d 748, 750
(7th Cir. 2005) (noting that “[l]itigants and judges regularly modify class definitions”); In re
Monumental Life Ins. Co., 365 F.3d 408, 414 (5th Cir. 2004) (“District courts are permitted to limit
or modify class definitions to provide the necessary precision.”).
                                         III. CONCLUSION
        For the foregoing reasons, we AFFIRM the district court’s conclusion that Powers’s § 1983
claims are cognizable and also AFFIRM the grant of class certification. We REVERSE the district
court’s judgment that Powers is entitled to summary judgment as a matter of law, and REMAND
for further proceedings consistent with this opinion.
No. 06-3460                Powers v. Hamilton County Public Defender Comm’n, et al.                               Page 22


                                                 ________________
                                                     DISSENT
                                                 ________________
        ALAN E. NORRIS, Circuit Judge, dissenting. While I agree with much of the majority’s
opinion, we part company on what it properly recognizes to be the “thorny question” of causation,
specifically proximate cause. Maj. Op. at 12. The Ohio Revised Code places the duty squarely upon
the court to hold a hearing into a defendant’s financial resources   before committing him to a jail or
workhouse for failure to pay a fine. Ohio Rev. Code § 2947.14.1 In a perfect world, defense counsel
should remind   the court of its statutory obligation, particularly when it is in the best interest of his
or her client.2 However, simply because judges face lengthy and growing dockets does not excuse
them from fulfilling a statutory duty, as the majority suggests. Nor may a court refrain from
inquiring into an issue that has not been raised by the litigants when a statute commands it. This
court, for instance, has an independent duty to examine the basis of its jurisdiction regardless of
whether the parties have briefed the issue. Accordingly, it seems to me that the majority is in error
when it concludes that the trial court’s breach of its duty does not sever the “chain of causation”
between plaintiff’s injury and defendant’s alleged wrongdoing. Maj. Op. at 13.
        In cases of outright misrepresentation by defense counsel, I agree with the majority that an
erroneous ruling on the part of the court would not serve as a superseding cause. That is not the case
here, however. The majority states that “there is no dispute that the Public Defender did not present
the municipal judge with any information about Power’s financial status.” Maj. Op. at 14. On the
contrary, counsel informed the court that “Mr. Powers is homeless and can’t come up with any
bond,” which put the court on notice that an indigency     hearing was necessary if the court intended
to confine Powers for nonpayment of his fine.3 It is hard for me to fathom how counsel’s statement,
as the majority would have it, “left the municipal judge with the misleading impression that Power’s
financial circumstances did not need to be investigated prior to incarcerating him on the unpaid
fine.” Maj. Op. at 14. In short, I find nothing in this record to support the majority’s conclusion that
the Public Defender, not the court, proximately caused Power’s alleged constitutional injury.
         I respectfully dissent.




         1
          This statute, which addresses the requirements outlined in Bearden v. Georgia, 461 U.S. 660, 667 (1983),
provides in part as follows:
         If a fine is imposed as a sentence or a part of a sentence, the court or magistrate that imposed the fine may order
         that the offender be committed to the jail or workhouse until the fine is paid or secured to be paid, or the
         offender is otherwise legally discharged, if the court or magistrate determines at a hearing that the offender is
         able, at that time, to pay the fine but refuses to do so. The hearing required by this section shall be conducted
         at the time of sentencing.
Ohio Rev. Code § 2947.14(A) (emphasis added).
         2
          As the majority notes, there may be scenarios where requesting a hearing is not in the best interest of the client,
Maj. Op. at 39, which may help to explain why the statutory scheme places the duty to inquire on the court.
         3
          The fact that Powers was represented by the Public Defender in the first place likewise provided a clear signal
to the court that his financial resources were limited.
