               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 05a0046n.06
                           Filed: January 18, 2005

                                         No. 03-3357

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


TERRY L. LUCAS, Jr.,                             )
                                                 )
       Plaintiff                                 )
                                                 )
v.                                               )    ON APPEAL FROM THE UNITED
                                                 )    STATES DISTRICT COURT FOR THE
PHILIP A. CHANCE, JEFFREY                        )    NORTHERN DISTRICT OF OHIO
CHANCE, and MAHONING COUNTY,                     )
OHIO,                                            )
                                                 )
       Defendants                                )




BEFORE:       MERRITT, MOORE, and GILMAN, Circuit Judges.

       MERRITT, Circuit Judge. This is a § 1983 case raising a First Amendment claim

against municipal officials and a municipality. It is an appeal from a summary judgment in favor

of defendants. The main legal question involves the admissibility of hearsay evidence in

opposition to a motion for summary judgment.

       Plaintiff Terry Lucas (“Lucas”) was hired by Sheriff Edward Nemeth (“Nemeth”) in

1993 as a deputy sheriff for Mahoning County, Ohio. Nemeth faced re-election in 1996 and

Lucas campaigned in support of him during his primary race against Phillip Chance, a defendant

in this case. Lucas’s campaigning on behalf of Nemeth included talking with people about the

election, placing signs in his yard and the yards of several family members, purchasing two

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tickets for a Nemeth fundraising event and wearing a pro-Nemeth pin when off-duty.

       Jeffrey Chance, a co-defendant in this case, served as a deputy sheriff with Lucas while

his brother Phillip was running for Sheriff. According to Lucas, he was friends with Jeffrey,

who tried to convince Lucas to vote for his brother by telling him to choose the “right team.” In

his deposition, Lucas stated that he considered this to be an implied threat.

       In spite of Lucas’s efforts on his behalf, Nemeth lost the primary to Philip Chance. For

the general election, Lucas supported Randall Wellington, Phillip Chance’s opponent, and

conducted limited campaigning on his behalf, primarily consisting of placing a few yard signs.

In response to this round of campaigning, Lucas claims that Jeffrey Chance again asked him to

support his brother’s election and that to support Wellington was to choose the “wrong team.”

       Several months after Phillip Chance won the general election and was installed as the

new Sheriff, he transferred Lucas from his assignment at the Youngstown Metropolitan Housing

Authority to a posting at the county jail. Lucas claims that Jeffrey Chance told him the transfer

to a less prestigious position was in retaliation for his political speech against his brother Phillip.

There is no indication that this transfer resulted in a decrease in salary or other benefits.

       In September 1998 a special grand jury empaneled to investigate fraud and corruption in

the tri-county area indicted Lucas on charges that he stole money from several individuals

arrested on drug charges. On July 14, 1999, prior to trial and at the prosecutor’s request, the

state court dismissed all charges against Lucas without prejudice.

       On July 12, 2001, Lucas filed a § 1983 suit against the Chance brothers, three other local

government officials, and the County itself. All defendants except the Chance brothers and the

County have been dismissed from the case. Lucas claims that the remaining defendants


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conspired with various criminal defendants to manufacture the charges against him and to

influence the prosecutor to seek an indictment. The only evidence that he provides in support of

this claim are his own reports of conversations he had with various parties about his indictments.

In these conversations Lucas was allegedly told about back-room deals made between the

Chances and their agents and several criminal defendants, who were promised favorable

treatment in exchange for their perjured testimony against Lucas.1

       Unrelated to the allegations in this case, Phillip Chance was found guilty on federal

bribery charges and linked in the media to organized crime. He is currently serving his sentence

in a federal prison in New York. While these facts may lend some credence to Lucas’s

allegations, they do not change his burden of proof or the rules of evidence.



       1
        Lucas’s Brief describes these contacts as follows

       One of the charges in the indictment against Lucas was that Lucas had kept
       [$2500] confiscated in a raid against Harold Lothard (“Lothard”). An attorney
       named Paul Gambrel (“Gambrel”) represented Lothard. Gambrel told Lucas that
       Jeffrey Chance had approached Lothard. Gambrel also told Lucas that Jeffrey
       Chance had instructed Lothard to approach a probation officer and assert that
       Lucas had participated in the theft of the [$2500].

       Another charge in the indictment was that Lucas was involved in taking money
       from an arrestee, Nicholas Fusco (“Fusco”). Robert Ruggeri, a special
       prosecutor, told Lucas that Mahoning County Deputies Parise and Farina had
       visited Fusco in prison before Fusco made allegations of criminal conduct by
       Lucas. Deputies Parise and Farina were close associates of Sheriff Philip Chance.
       Lucas reasoned that Philip Chance had dispatched Deputies Parise and Farina to
       speak to Fusco in prison. Farina also spoke to an individual named Billy Aaron
       (“Aaron”). Farina instructed Aaron to make allegations against Lucas. Farina
       advised Aaron that in return for allegations of criminal conduct against Lucas
       Aaron would receive help relating to criminal charges then pending against
       Aaron. Aaron’s brother told Lucas about Farina’s approach to Aaron.

Lucas Br. at 7-8 (citations omitted).

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       The magistrate judge identified the three elements of a First Amendment retaliation claim

as (1) the plaintiff engaged in protected conduct, (2) the plaintiff suffered an adverse action that

would deter a person of ordinary firmness from continuing in that conduct, and (3) a causal

connection existed between the first two elements, or in other words, the adverse action was at

least in part motivated by the plaintiff’s protected conduct. See Thaddeus-X v. Blatter, 175 F.3d

378, 394 (6th Cir. 1999) (en banc). For purposes of opposing a motion for summary judgment,

the magistrate ruled that Lucas was successful with respect to the first two elements. However,

the only evidence he offered in support of the third element was inadmissible hearsay. The

magistrate correctly found that only admissible evidence can be used to oppose a motion for

summary judgment and therefore ruled in favor of the defendants.

       It is well-established in this circuit that otherwise inadmissible hearsay evidence may not

be used to support or oppose a motion for summary judgment.2 See Carter v. Univ. of Toledo,

349 F.3d 269, 274 (6th Cir. 2003) (“If the [offered] comments are deemed to be hearsay, then the

evidence could not be considered on summary judgment.”); Wiley v. United States, 20 F.3d 222,

225-26 (6th Cir. 1994) (“[H]earsay evidence cannot be considered on a motion for summary

judgment.”). This rule is grounded in the language of Rule 56(e), which states “[s]upporting and

opposing affidavits [related to a motion for summary judgment] 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.” Fed. R. Civ. P.

56(e) (emphasis added).


       2
         Lucas effectively concedes this point by failing to contest it in his brief. He argues only
that the evidence he offers falls within an exception to the hearsay rule, not that inadmissible
hearsay may be considered on summary judgment.

                                                 -4-
       In response, Lucas argues that the asserted testimony falls within one of the hearsay

exceptions found in Rule 804 of the Federal Rules of Evidence. Under Rule 804, if a declarant is

unavailable as a witness, then additional hearsay exceptions may apply to that declarant’s

statements. These include his former testimony, statements made under belief of impending

death, statements made against interest, and statements made regarding personal or family

history.

       Lucas erroneously argues in his brief that the three declarants are unavailable, under Rule

805(a)(5), because they “are highly unlikely to make themselves available to appellant to testify

in a civil case such as this one.” Lucas Br. at 11. But the rules require more than merely

asserting a high probability of uncooperativeness for the exception to apply. “‘Unavailability as

a witness includes situations in which the declarant . . . is absent from the hearing and proponent

of a statement has been unable to procure the declarant’s . . . attendance or testimony . . . by

process or other reasonable means.” Fed. R. Evid. 804(a)(5) (emphasis added). There is no

evidence in the record that Lucas has made any effort whatsoever to “procure the declarants’

testimony.” Instead he merely asserts the belief that the declarants would not make themselves

available if he were to make such an effort. One purpose of the subpoena power is to require the

cooperation of witnesses who would otherwise prefer not to be subjected to the rigors of the

adversarial process. Lucas argues that a proponent of hearsay need not utilize this power of the

court if he believes it will ultimately prove ineffectual. Lucas has offered no support for this

position in the case law or otherwise. “Unavailability” does not mean that a witness may be

hostile or reluctant. The language of the rule “attendance or testimony . . . by process” means

what it says.


                                                -5-
       Finally, since Lucas has failed to offer admissible evidence of any First Amendment

violation, he cannot prove liability for the County. See City of Los Angeles v. Heller, 475 U.S.

796, 799 (1986).

       Accordingly we AFFIRM the summary judgment entered by the district court.




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