                         NOT RECOMMENDED FOR PUBLICATION
                                 File Name: 13a0770n.06

                                             No. 12-3703

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                                                       FILED
JACK DRAKE, Individually and as Administrator             )                      Aug 16, 2013
of the Estate of Jessica Drake, Deceased,                 )                  DEBORAH S. HUNT, Clerk
                                                          )
       Plaintiff-Appellant,                               )
                                                          )
                 v.                                       )   ON APPEAL FROM THE UNITED
                                                          )   STATES DISTRICT COURT FOR
VILLAGE OF JOHNSTOWN, OHIO, et al.,                       )   THE SOUTHERN DISTRICT OF
                                                          )   OHIO
       Defendants-Appellees.                              )
                                                          )



BEFORE: KETHLEDGE, WHITE, and STRANCH, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. Plaintiff Jack Drake, a former resident of the Village

of Johnstown, Ohio, brought this action against the Village, its Council, and several Village officials

and employees following his arrest and detention for failure to pay Village income taxes. Drake

challenges the district court’s grant of summary judgment to Defendants dismissing his procedural

due process claim, 42 U.S.C. § 1983, and his state-law claim of false arrest. We AFFIRM.

                                                  I.

       By codified ordinance, Defendant Village of Johnstown (the Village) imposes a 1% income

tax on residents’ per-annum earnings and requires that residents file tax returns.1 Jack Drake and

his late wife, Jessica Drake, lived in a rented house in the Village for two years, until October 2006.


       1
           Johnstown Codified Ordinances, §§ 191.02, 191.19(a)(8).
No. 12-3703
Drake v. Village of Johnstown, Ohio, et al.

The Drakes2 testified that they first learned of the Village’s income tax and tax-return filing

requirement in October 2007, when they received by mail a letter entitled “Complaint,” together with

an Order to Appear in Johnstown’s Mayor’s Court. The letter stated that the Drakes unlawfully

failed to file a tax return for the 2005 tax year on or before April 15 of the following year, contrary

to Johnstown Codified Ordinance § 191.17, an unclassified misdemeanor, and that “[t]his crime is

commonly known as failure to file a tax return.”3 Defendant John Berryhill, the Mayor’s Court

Magistrate, signed the Order to Appear.4 See PageID (PID) 787.

       The Drakes appeared before Magistrate Berryhill in Mayor’s Court, as ordered, on December

13, 2007, and pleaded no contest. Magistrate Berryhill explained to the Drakes that they owed taxes

and court costs and that they needed to arrange to file the tax return and set up a payment plan with

Tax Director Wilson. The Drakes met with Tax Director Wilson and provided copies of their federal

tax returns.5 Wilson prepared and filed the Drakes’ Village tax returns for 2005 and 2006.

       Several weeks later, on January 9, 2008, Tax Director Wilson sent the Drakes a “Delinquent

Taxes” notice, stating they owed Village taxes, plus penalties interest totaling $220.01 for 2005 and

$222.83 for 2006. The notice stated, “If the above is not paid or arrangements made for payment,


       2
          All references to the Drakes’ testimony come from Jessica Drake’s deposition. As the
district court noted, Jack testified that Jessica got everything right in her deposition and that he had
nothing to add. See PID 907 n.2.
       3
        Defendant Karen Wilson, Tax Director, and Defendant Regina Hunt, Mayor’s Court Clerk,
signed the letter entitled “Complaint.” PID 787.
       4
           PID 788.
       5
           PID 323-24. Jessica testified that she and Jack always filed separate tax returns. PID 325.

                                                  -2-
No. 12-3703
Drake v. Village of Johnstown, Ohio, et al.

further legal action may be taken.”6 PID 379. Defendants sent the Drakes several more such notices,

including in July 2008.

       On September 9, 2008, Tax Director Wilson and Court Clerk Hunt signed Complaints against

the Drakes for failure to pay their 2005 and 2006 taxes.           Magistrate Berryhill signed the

accompanying arrest and bench warrants and Court Clerk Hunt signed the summons. PID 811-Jack

(Case No. 07-OTH-00072), PID 813-Jessica (Case No. 08-OTH-00223).

       The Drakes appeared in Mayor’s Court on October 23, 2008, met with Tax Director Wilson,

and agreed to pay $25 bi-monthly beginning on November 14, 2008. The Mayor’s Court docket

sheet reflects that the charge against Jack Drake, “191.200 Tax Violation,” was dismissed. PID 822-

23 (Case no. 07OTH00104).

       It is undisputed that the Drakes made no payments under this payment plan, and that they

agreed to at least one other payment plan with Tax Director Wilson, but made no payments.

       Over the next few months Johnstown sent the Drakes several letters regarding their

outstanding taxes. The Drakes testified that they did not receive these letters but conceded that the

letters were correctly addressed.

       The Drakes were ordered to appear in Mayor’s Court on February 12, 2009, by Notices to

Appear dated January 12, 2009. The Drakes testified that they did not receive the Notices to Appear,

and the record reflects that those sent by certified mail were returned to Johnstown bearing the stamp




       6
           PID 379.

                                                -3-
No. 12-3703
Drake v. Village of Johnstown, Ohio, et al.

“Return to Sender. Unclaimed. Unable to Forward.” Court Clerk Hunt testified that it was her

practice to send notices to appear via both certified and regular mail.

       In any event, the Drakes did not appear as ordered and Magistrate Berryhill signed warrants

for their arrest the following day, February 13, 2009. By letter dated the same day, entitled “Warrant

Issue Notice,” Court Clerk Hunt advised the Drakes that the Mayor’s Court “has issued a warrant

for your arrest. Therefore, you must now post bond, in person, at the Johnstown Police Dept. Once

you have posted your bond, the warrant will be set aside, and you will be given a Court date at which

time you must appear before the Court. Total bond is set at $500.00.” PID 714 (case No.

09OTH00003).7 The multi-section form accompanying the Warrant Issue Notice bore Magistrate

Berryhill’s signatures under the bench warrant and arrest warrant sections and identified the Drakes’

transgressions as failing to “appear for Trial/Hearing,” and failing to “Obey an Order of the Court.”

PID 712. Tax Director Wilson and Court Clerk Hunt signed the complaint sections of the forms, and

Court Clerk Hunt the summons sections. Id.

       The Drakes received the Warrant Issue Notices on Saturday, February 14, 2009, during the

President’s Day holiday weekend. Jessica testified that she called and told the Police Department



       7
        By separate letters dated February 13, 2009, entitled “Warrant Block Issue Notice,” Court
Clerk Hunt advised that
       [a] warrant has been/will be issued and a registration block was issued for all vehicles
       that you own . . . The Bureau of Motor Vehicles was notified on February 13, 2009.
       After this date you will NOT be able to renew your plates or register another vehicle
       until the warrant has been released by this Court.
PID 803 (case No. 09OTH00003/Jessica, No. 07OTH00104/Jack). These warrant blocks were
cancelled around the time that Magistrate Berryhill released the Drakes from jail on February 19,
2009.

                                                -4-
No. 12-3703
Drake v. Village of Johnstown, Ohio, et al.

dispatcher that she and Jack did not have $500 a piece for bond, and that the dispatcher told her to

call Tax Director Wilson on Tuesday, since Monday was a holiday. On Tuesday, Jessica spoke to

Court Clerk Hunt, who told her that Tax Director Wilson would be available on Wednesday, the

following day, and that if the Drakes arranged with Wilson to pay the outstanding taxes, she (Hunt)

would hold the warrants.

       At 9:10 p.m. on Tuesday evening (February 17, 2009) Newark police officers arrested the

Drakes at their Newark home and transported them to the Licking County Jail, where they were

booked and jailed.     On the afternoon of Thursday, February 19, 2009, a Johnstown police officer

transported Jessica from the county jail to the Johnstown Police Department, where Magistrate

Berryhill met with her in a room. Magistrate Berryhill testified that he considered this meeting a

“bond hearing,” and admitted saying to Jessica that the Village was tired of the Drakes “dicking

around.” PID 451-52. Jessica testified that Berryhill also said that the “next time” he would jail the

Drakes for a month. Berryhill denied saying this.

       After the meeting, Berryhill issued identical orders for Jack and Jessica, which stated:

       This matter came on for consideration by the Magistrate and it is ordered that the
       Deft. be released on the execution of a $5,000 own recognizance bond. Deft. is to
       either schedule an appointment with Ms. Wilson or if not possible appear in Mayor’s
       Court on February 26, 2009 at 6:30 p.m.

PID 808-09. Jessica was transported back to the county jail, and both she and Jack were released.

       The Drakes received several subsequent notices from Tax Director Wilson regarding their

outstanding taxes but were not ordered to appear in Mayor’s Court again. Jessica testified that she

paid the outstanding income taxes to a collection agency in early 2010, after she was approved for


                                                -5-
No. 12-3703
Drake v. Village of Johnstown, Ohio, et al.

disability benefits and received a sum retroactive to 2008. By the time Jessica paid off the

outstanding taxes, Johnstown had abandoned the practice of collecting taxes through the Mayor’s

Court and turned it over to an outside agency.

          The Drakes filed suit against Magistrate Berryhill, Court Clerk Hunt, Tax Director Wilson,

Johnstown Mayor Kevin Riffe, the Village Council, and the Village, asserting violations of due

process and equal protection, conspiracy, and false arrest, and seeking prospective and injunctive

relief.

                                                  II.

          The State of Ohio “gives mayors in cities with populations of more than 100 jurisdiction to

‘hear and determine any prosecution for the violation of an ordinance of the municipal corporation’,”

provided that certain requirements not at issue here are met. Bailey v. City of Broadview Heights,

674 F.3d 499, 501 n.1 (6th Cir. 2012) (quoting Ohio Rev. Code § 1905.01); DePiero v. City of

Macedonia, 180 F.3d 770, 786 (6th Cir. 1999). There is no dispute that the Village is authorized to

convene a Mayor’s Court to preside over prosecutions for violations of a municipal ordinance. Ohio

Rev. Code 1905.01; DePiero, 180 F.3d at 776. Mayor Kevin Riffe appointed Defendant John

Berryhill as magistrate of the Village’s Mayor’s Court, as authorized by statute. Ohio Rev. Code §

1905.05(A); see also Johnstown, Ohio, Codified Ordinance § 171.03 (“[t]he Mayor shall appoint a

qualified magistrate to conduct Mayor’s Court.”)

          Johnstown Codified Ordinance § 191.16, entitled “Failure to File Return or Pay Tax;

Assessments; Notice,” provides in pertinent part:



                                                 -6-
No. 12-3703
Drake v. Village of Johnstown, Ohio, et al.

       (a) [] If any taxpayer fails to file a return or fails to pay the tax imposed by Section
       191.02 of this chapter, the taxpayer is personally liable for the amount of the tax.
       (b) If any . . . taxpayer required to file a return . . . fails to file the return within the
       time prescribed . . . , fails to remit the full amount of the taxes due for the period
       covered by the return . . . the Tax Director may make an assessment against any
       person liable for any deficiency for the period for which the return is or taxes are due,
       based upon any information in the administrator’s possession.
       (c) Such assessment shall be served upon the . . . taxpayer . . . in person or by
       mailing to the last known address of such taxpayer . . . Proof of mailing such
       proposed assessment shall be presumptive proof of receipt thereof by the addressee.

Ordinance § 191.19, entitled “Penalties for Failure to File, Failure to Pay,” provides:

       (a) In addition to any other penalty imposed by this chapter, the following penalties
       shall apply:
               (1) All taxes imposed by this chapter and remaining unpaid after they
       become due shall accrue interest at the rate of two percent (2%) per month on the
       principal unpaid balance. Such interest shall accrue on the unpaid balance of all tax
       which was due from the date if the tax had been time [sic] filed and paid.

              (2) The penalty for non-filing or late filing of a return required to be filed
      and paid, for which an extension of time was not timely sought and obtained, shall
      be ten percent (10%) of the amount of the principal tax or twenty-five dollars
      ($25.00) whichever is greater and will be due with the filed return.
      ....
              (8) Any taxpayer who shall fail, neglect or refuse to pay the tax, interest and
      penalties imposed by this chapter shall be guilty of a misdemeanor and shall be
      fined not more than one hundred dollars ($100.00) for the first offense . . . .
      ....
      If the violation of this section is willful and intentional a jail term may also be
      imposed with the fine as follows:
              A. First offense        30 days (max.)
      ....
(Emphasis added). As Tax Director, Defendant Karen Wilson administered the Department of

Taxation and was authorized

       to arrange for the payment of unpaid taxes, interest, and penalties on a schedule of
       installment payments, when the taxpayer has proved to the Tax Director that, due to
       certain hardship conditions, he is unable to pay the full amount of the tax due. Such


                                                   -7-
No. 12-3703
Drake v. Village of Johnstown, Ohio, et al.

        authorization shall not be granted until proper returns are filed by the taxpayer for all
        amounts owed by him under this chapter.

Johnstown Codified Ordinance § 191.03(f).8
                                                   A.

        Magistrate Berryhill testified that he has served as Johnstown’s Mayor’s Court magistrate,

a part-time position, for between 7 and 10 years, and serves as magistrate for a number of other

towns as well. For the last 15 years, his full-time employment has been as magistrate judge in the

Domestic Relations Court of Licking County. Berryhill testified that he signed the Drakes’ arrest

warrants in February 2009 because they had failed to pay outstanding taxes and failed to appear in

court as ordered. He also testified that he signed the arrest warrants believing that valid complaints

had been filed against the Drakes and that they had been properly served.

        On advice of counsel, Magistrate Berryhill did not answer certain questions at

deposition—those that went to why he did certain things relative to the Drakes’ cases. The Drakes

moved to compel Berryhill to answer “why” questions, and the magistrate judge ruled that Berryhill

should not be compelled to testify to the thought processes underlying his judicial decisions.




        8
         Johnstown Codified Ordinance section 191.04, entitled “Investigative Powers of Tax
Director,” authorizes the Tax Director “to examine the books, papers, records, and federal income
tax returns of . . . any taxpayer . . . for the purposes of verifying the accuracy of any return made, or,
if no return was made, to ascertain the tax due under this chapter.” Ordinance § 191.18 authorizes
the Tax Director to institute civil suit to collect delinquent taxes:
        191.18 COLLECTION OF UNPAID TAXES
        All taxes imposed by this chapter shall be collectable, together with any interest and
        penalties thereon, by suit, as other debts of like amount are recoverable. The Tax
        Director is authorized, in addition to other duties, to institute civil lawsuits to collect
        delinquent taxes due and owing the Municipality . . . .

                                                  -8-
No. 12-3703
Drake v. Village of Johnstown, Ohio, et al.

       Several months later, when Defendants moved for summary judgment, they appended to their

motion an affidavit from Berryhill that attested:

       7. I made a finding of probable cause that [the Drakes] failed to appear in Mayor’s
       Court on February 12, 2009.
       8. I made a finding of probable cause that [the Drakes] were in violation of the
       Ordinances of Johnstown, Ohio with respect to their failure to pay their Village
       income taxes.
       9. On February 12, 2009, pursuant to my findings of probable cause, I issued a
       warrant for the arrest of [the Drakes.] See Exhibits M and N.
       10. [The Drakes] were brought before me within 48 hours of their arrest for a bond
       hearing.
       11. At the bond hearing, I released both Jessica Drake and Jack Drake on their own
       recognizance. See Exhibits T and U.
       12. The decision to issue a warrant for the arrest of [the Drakes] was made solely by
       me.
       13. The decision to release [the Drakes] on their own recognizance was made solely
       by me.9

Mayor’s Court “Diversion Program”

       Magistrate Berryhill testified that, rather than take to trial residents who pleaded not guilty

to charges of failure to file returns or pay Village income taxes, the Mayor’s Court had “something

comparable to a diversion program,” which he described as follows:

       Ms. Wilson, most of the time, probably every time, would have had contact with the
       people prior to their appearing in court, and she we [sic] would have a pretty good
       idea as to what was going on with the cases.
       . . . the case would be called. The person would appear before me. I would explain
       what the . . . diversion program consisted of.
       ....
       In essence, what would happen, we were interested not in punishing people, but in
       getting the revenue for the Village.
       And if the person felt that they didn’t owe the money for some reason, they hadn’t
       lived in the Village during the tax period in question or something along those lines,


       9
           PID 715-16.

                                                -9-
No. 12-3703
Drake v. Village of Johnstown, Ohio, et al.

       had no income, whatever, what we would do is set up a conference with Ms. Wilson
       and they would talk and enter a not guilty plea at that point.
               I don’t recall any . . . cases that would fit into that category that ever came
       back to court . . . if they reached a consensus that there was a tax liability there, that
       Ms. Wilson and the person would set up some sort of a payment plan and the
       payment plan would be taken care of.
               When that was paid and the court costs were paid, then the case would be
       dismissed.
       Q. Okay. The rules governing the diversion program, are they written down
       anywhere?
       A. No.

PID 238. Tax Director Wilson similarly testified that, after she repeatedly attempted to collect

outstanding taxes from residents who had either appeared in Mayor’s Court and agreed to payment

plans or had not appeared as ordered, she would obtain a case number from Court Clerk Hunt. Hunt

worked separately with residents to get them to pay affiliated court costs, while Wilson only

addressed outstanding tax debt. Wilson’s computer was not networked with Hunt’s. If the residents

appeared and either paid all outstanding taxes and court costs or agreed to another payment plan, the

Mayor’s Court “dismissed” the complaint. Subsequent complaints, issued after residents again failed

to pay, could have different case numbers. In the Drakes’ case, they appeared in Mayor’s Court

twice, and entered into at least two payment plans.

       Tax Director Wilson kept track of delinquent taxpayers, aided by a computer program that

produced monthly reports. She maintained case files for residents who had not paid outstanding

taxes, which included documentation of when notices were sent, communications with the resident,

payment plans the resident had agreed to, etc. Wilson attended Mayor’s Court whenever there was

a tax case in case persons brought before the court wanted to arrange a payment plan or provide her

with their W-2 forms. PID 577.

                                                 - 10 -
No. 12-3703
Drake v. Village of Johnstown, Ohio, et al.

       Wilson testified that she spoke with Jessica Drake “a few times” regarding the Drakes’

outstanding taxes, that Jessica told her she did not have the money to pay the taxes, and that Wilson

believed her. PID 584-85.

       Court Clerk Hunt testified that she handled the physical processing of arrest warrants when

Magistrate Berryhill ordered such warrants, and that she took the signed warrants from the magistrate

to the Village Police Department’s dispatcher, where the warrants were entered into LEADS. PID

484. Hunt signed the notices to appear sent to the Drakes in January 2009. PID 497.

       Mayor Riffe testified that he had no knowledge of the Mayor’s Court’s operations, financial

or otherwise; had no training in its operation; and had no knowledge whether Court Clerk Hunt had

any training. PID 640-44.

                                                  B.

       Following discovery, Defendants moved for and were granted summary judgment.

Regarding the § 1983 claims, the district court concluded that Magistrate Berryhill and Court Clerk

Hunt were entitled to absolute immunity, Tax Director Wilson and Mayor Riffe were entitled to

qualified immunity, and there was no basis for Monell10 liability as to the Village and Village

Council. The district court determined that the false-arrest claim failed because Magistrate Berryhill

had probable cause to conclude that the Drakes failed to appear in Mayor’s Court as ordered and that

their failure to pay the outstanding income taxes was willful and intentional.11


       10
            Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).
       11
         Jessica Drake passed away in November 2011. The district court permitted Jack to
substitute as administrator of her estate.

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No. 12-3703
Drake v. Village of Johnstown, Ohio, et al.

                                                 III.

       Two claims are at issue in this appeal–the asserted deprivation of procedural due process

under 42 U.S.C. § 1983 and false-arrest under Ohio law.12

       It is important to understand what Drake is not arguing. Drake does not contest Johnstown’s

authority to levy taxes on income or to collect those taxes through lawful means. He does not

dispute that for several years he and Jessica were delinquent in paying outstanding taxes. Nor does

Drake contest that the Village is permitted to prosecute the failure to pay tax as a crime. Rather,

Drake challenges the district court’s determination that probable cause existed to issue the arrest

warrants, arguing that disputed issues of fact regarding why Berryhill issued the warrants should

have precluded summary judgment. Drake also argues that the diversion program deprived the

Drakes of their due process rights and was a custom and policy of the Village, and that the individual

Defendants were not entitled to immunity.

                                                 A.

       Review of the district court’s grant of summary judgment to Defendants is de novo. Thom

v. Am. Standard, Inc., 666 F.3d 968, 972 (6th Cir. 2012). The facts and inferences therefrom are

viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986); Gregorcic v. Stow, 229 F.3d 1151, 2000 WL

1140520, at *2 (6th Cir. 2000) (unpublished).


       12
           The Drakes abandoned their equal protection claim and claim for prospective and injunctive
relief in the district court. PID 911 n.4, 923 n.5. On appeal, Drake has abandoned the substantive
due process and conspiracy claims and concedes that Magistrate Berryhill is entitled to absolute
immunity for the federal claims. Drake Br. at 3.

                                                - 12 -
No. 12-3703
Drake v. Village of Johnstown, Ohio, et al.

       “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the

Constitution and laws of the United States, and must show that the alleged deprivation was

committed by a person acting under color of state law.” Gray v. City of Detroit, 399 F.3d 612, 615

(6th Cir. 2005) (internal quotation marks omitted). Government officials are immune from civil

liability under 42 U.S.C. § 1983 when performing discretionary duties so long as their conduct does

not violate clearly established statutory or constitutional rights of which a reasonable person would

have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Webb v. Ky. State Univ., 468 F.

App’x 515, 520 (6th Cir. 2012).

       To succeed on a municipal-liability claim, a plaintiff must demonstrate an official policy or

custom that is either “facially unconstitutional as written or articulated” or has been implemented

in such a manner as to demonstrate “deliberate indifference” to the “plainly obvious” risk of

constitutional violation. Gregory v. City of Louisville, 444 F.3d 725, 752 (6th Cir. 2006). In

addition, liability under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), must rest on a direct

causal connection between the policies or customs of the local government entity and the

constitutional injury to the plaintiff. Gray, 399 F.3d at 617.

                                                 B.

Section 1983: Probable Cause Determination

       Drake argues that genuine issues of material fact precluded summary judgment on the

question whether probable cause supported the Drakes’ arrest warrants.            He acknowledges

nonetheless that Berryhill is entitled to absolute immunity on the federal claims. In any event, Drake

contends that the district court improperly credited Berryhill’s affidavit when questions of fact

                                                - 13 -
No. 12-3703
Drake v. Village of Johnstown, Ohio, et al.

remained regarding why Berryhill issued the warrants. According to Drake, Berryhill’s explanation

at deposition of why he issued the arrest warrants differed from his explanation in his subsequently-

filed affidavit. Drake further contends that record evidence is also conflicting as to what charges

prompted the warrants—whether it was failure to pay taxes, failure to pay in accordance with a court

order, or contempt of court. The two cases Drake cites to support his argument stand for the

propositions: 1) that a party may not assume a position in a legal proceeding contrary to an earlier

position, to the prejudice of the other party and 2) that a deponent is not permitted to submit an

affidavit at odds with his deposition testimony.

       Defendants respond that, given Drake’s concession that Berryhill was entitled to absolute

immunity on the federal claims, Berryhill cannot be held liable for any aspect of the Drakes’ arrest

and detention and the only issue remaining is whether there is any evidence that Defendants other

than Berryhill had involvement or control over the decision to arrest the Drakes. The district court

answered that question in the negative. PID 917-19.

                                                   C.

       Under § 1983, probable cause to justify an arrest means facts and circumstances within the

official’s knowledge that are sufficient to warrant a prudent person in believing, in the circumstances

shown, that the suspect has committed or is about to commit an offense. Alman v. Reed, 703 F.3d

887, 896 (6th Cir. 2013). “Whether [the Drakes’] constitutional rights were violated (and by

extension, the viability of [their] § 1983 claims) therefore hinges principally on whether there was

probable cause to arrest [them] in the first place.” Id.



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No. 12-3703
Drake v. Village of Johnstown, Ohio, et al.

       The district court concluded that Berryhill alone decided to issue the warrants and did so

based on sufficient evidence that the warrants were supported by probable cause:

       [T]here is sufficient evidence that the Drakes were arrested pursuant to a valid
       warrant supported by probable cause. It is undisputed that the decision to issue a
       warrant for the Drakes’ arrest was made by Magistrate Berryhill. (Berryhill Dep. 34.)
       In his affidavit, Magistrate Berryhill avers that he made a finding of probable cause
       that the Drakes had violated § 191.19(a)(8) of the Codified Ordinances of the Village
       of Johnstown for failure to pay income taxes, and that the Drakes failed to appear as
       ordered in the . . . Mayor’s Court on February 12, 2009 to answer to the violation.
       (Berryhill Aff. ¶ 8.) Section 191.19(a)(8) provides that an individual who willfully
       and intentionally fails, neglects, or refuses to pay their [sic] income taxes may be
       jailed for up to thirty days. (Doc. 41-18.) Here, it is undisputed that in 2007, the
       Drakes pled no contest to the charge of failing to file a tax return. (Jessica Drake
       Dep. 31-32.) It is also undisputed that the Drakes failed to make a single payment
       toward their outstanding income taxes or court costs, despite entering into several
       payment agreements with Wilson, and that they did not appear in the Mayor’s Court
       as ordered on February 12, 2009. (Jessica Drake Dep. 63-64.) Thus, there was
       sufficient probable cause that the Drakes willfully and intentionally violated §
       191.19(a)(8). There is no evidence that there was a violation of the Drakes’
       procedural due process rights.

PID 919.
                                                 D.

       Drake cites no authority to support the proposition that Magistrate Berryhill’s subjective

reasons for issuing the warrants are relevant where sufficient probable cause supported the warrants’

issuance. Without doubt, the Drakes’ case files are far from the epitome of organization and the

Mayor’s Court’s record-keeping left much to be desired. For example, the multiple case numbers

assigned the Drakes and the fact that the cover of one of the files stated that their arrest warrants

issued because they were in contempt of court (as opposed to for failure to pay taxes and failure to

appear as ordered) are confusing and would frustrate any litigant. Nonetheless, when Berryhill,

Wilson, and Hunt’s deposition testimony are read together, the Mayor’s Court’s record-keeping and

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No. 12-3703
Drake v. Village of Johnstown, Ohio, et al.

processes are sufficiently explained to undermine the claim that the Drakes’ arrest was without

probable cause.

        Record evidence clearly establishes that there were several legitimate grounds for the Drakes’

arrest on February 12, 2009, including their failure to pay outstanding income taxes and their failure

to appear in Mayor’s Court as ordered to answer for that failure. Assuming that there was internal

confusion about which of several legitimate reasons for the Drakes’ arrest was the actual reason, any

valid reason that could justify their arrest (and therefore, the warrants) renders their arrests

reasonable. See Devenpeck v. Alford, 543 U.S. 146, 153 (2004) (observing that “[o]ur cases make

clear that an arresting officer’s state of mind . . . is irrelevant to the existence of probable cause . .

. his subjective reason for making the arrest need not be the criminal offense as to which the known

facts provide probable cause. . . . [T]he fact that the [arresting] officer does not have the state of

mind which is hypothecated by the reasons which provide the legal justification for the officer’s

action does not invalidate the action taken as long as the circumstances, viewed objectively, justify

that action.” (emphasis added) (citations and internal quotation marks omitted)). Thus, irrespective

of Magistrate Berryhill’s subjective reason for issuing the warrants (or confusion among various such

reasons), the warrants and the arrests based on those warrants were constitutional.

                                                   E.

        The question then becomes whether Drake presented sufficient evidence that a Defendant

other than Berryhill “cause[d] the plaintiff to be subjected to deprivation of his constitutional rights,”

as § 1983 requires. Baker v. McCollan, 443 U.S. 137, 142 (1979). We conclude that he did not.

Although Court Clerk Hunt signed the summons and complaints accompanying the arrest warrants

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No. 12-3703
Drake v. Village of Johnstown, Ohio, et al.

and kept Magistrate Berryhill apprised of the Drakes’ failure to pay court costs, there is no evidence

that she performed these or any other acts other than as quasi-judicial functions in her capacity as

Clerk of the Mayor’s Court. Foster v. Walsh, 864 F.2d 416, 417–18 (6th Cir. 1988) (issuance of

arrest warrant was a “truly judicial act” for which court clerk enjoyed absolute immunity); see also

Fish v. Murphy, 22 F. App’x 480, 482 (6th Cir. 2001) (observing that one defendant, the Clerk of

the district court for the Southern District of Ohio, was clearly sued in his capacity as court clerk

performing quasi-judicial functions and was thus entitled to absolute immunity from suit for money

damages).

       As part of her responsibilities for administering the Village’s Tax Department and the tax

diversion program, Tax Director Wilson kept Magistrate Berryhill apprised of the Drakes’

delinquency in paying outstanding taxes, and signed the complaints against the Drakes. The

complaints against the Drakes were on the same form as the arrest warrants, which Magistrate

Berryhill signed.   Drake presented no evidence that Wilson played anything other than an

administrative role in Berryhill’s decision to issue warrants for the Drakes’ arrest. See Gregorcic

v. City of Stow, 229 F.3d 1151, 2000 WL 1140520, at *3 (6th Cir. 2000) (noting that a city “can

certainly rely on the representations of staff members in pursuing a criminal complaint.”)

       Drake presented no evidence that Mayor Riffe played any role in the Johnstown’s Mayor’s

Court other than appointing Berryhill as magistrate.

       As to the municipal Defendants, the Village and Village Council, the district court properly

dismissed them under Monell because Drake failed to establish a violation of constitutional rights

and failed to establish that any aspect of the Village’s tax collection procedures targeted, approved,

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No. 12-3703
Drake v. Village of Johnstown, Ohio, et al.

or encouraged the allegedly unconstitutional conduct. See PID 921. Only Magistrate Berryhill’s

determination to have the Drakes arrested was the moving force behind their arrest, and Drake

concedes that Berryhill is entitled to absolute immunity on the federal claims.

                                                 F.

       Drake forfeited his final argument under § 1983: that the Drakes’ challenge “is to the

warrants themselves, and the factual underpinnings upon which they were based. As to that issue,

Franks v. Delaware, 438 U.S. 154 (1978), . . . and it[s] progeny, are the controlling precedent.”

Reply Br. at 11; see also Drake Br. at 45. Drake did not request a Franks hearing below nor did he

raise this issue. It is thus forfeited. See 600 Marshall Entm’t Concepts, LLC v. City of Memphis,

705 F.3d 576, 586 (6th Cir. 2013).

                               IV. False arrest under Ohio Law

       As to his false arrest claim, Drake argues that Tax Director Wilson, Court Clerk Hunt, and

Magistrate Berryhill were not entitled to immunity under Ohio law.

       “[T]o succeed on a claim of false arrest or imprisonment, a plaintiff must establish that the

defendants were without legal authority to arrest and detain him and that the detention was not

accomplished pursuant to accepted legal procedures.” Krantz v. City of Toledo Police Dep’t, 365

F. Supp.2d 832, 837 (N.D. Ohio 2005) (citing McFinley v. Bethesda Oak Hosp., 607 N.E.2d 936,

938–39 (Ohio App. 1992) (noting that one element essential to recovery for false arrest and false

imprisonment is a showing that a detention or confinement “occurred without lawful justification”)).

The existence of probable cause to arrest defeats a false arrest claim. Harvey v. Horn, 514 N.E.2d

452, 455–56 (Ohio App. 1986). Probable cause is “[a] reasonable ground of suspicion, supported

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No. 12-3703
Drake v. Village of Johnstown, Ohio, et al.

by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the

person accused is guilty of the offense with which he is charged.” Melanowski v. Judy, 131 N.E.

360, 361 (Ohio 1921).

       Under Ohio law, individual employees of a political subdivision generally are immune from

civil actions to recover damages for “injury . . . or loss to person or property allegedly caused by any

act or omission in connection with a governmental or proprietary function.” Ohio Rev. Code §

2744.03(A)(6). Immunity exists unless “(a) [t]he employee’s acts or omissions were manifestly

outside the scope of the employee’s employment or official responsibilities; (b) [t]he employee’s acts

or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner; [or] (c)

[] liability is expressly imposed upon the employee by a section of the Revised Code.” Id.

       A political subdivision is not liable in damages in a civil action for injury caused by any act

or omission of the political subdivision or an employee thereof in connection with a governmental

function. Ohio Rev. Code § 2744.02(A)(1).

                                                  A.

       Drake maintains that Tax Director Wilson had no authority to commence a criminal action

or participate in sending taxpayers to jail, Court Clerk Hunt had no authority to issue substantive

orders including the January 12, 2009 order that the Drakes appear in Mayor’s Court, and that

Magistrate Berryhill had no authority to create and administer a diversion program that deprived the

Drakes of due process. Thus, Drake argues, a reasonable jury could conclude that these three

Defendants acted manifestly outside the scope of their official responsibilities and recklessly. Drake

Br. at 46-47.

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No. 12-3703
Drake v. Village of Johnstown, Ohio, et al.

       The district court properly dismissed Drake’s false arrest claim on the basis that the Drakes

were arrested pursuant to valid warrants supported by probable cause. PID 922. As discussed,

Magistrate Berryhill alone determined there was probable cause that the Drakes willfully and

intentionally failed to pay Village income taxes and that the Drakes failed to appear in Mayor’s Court

on February 12, 2009, as ordered. Ordinance § 191.19(a)(8) provides that an individual who

willfully and intentionally fails, neglects, or refuses to pay income taxes may be jailed for up to 30

days, and Drake does not contest that Johnstown is authorized to prosecute the failure to pay taxes

as a crime. Under Ohio law, the existence of probable cause to arrest defeats a false arrest claim.

Harvey, 514 N.E.2d at 455–56. Thus, the district court properly concluded that none of the

Defendants could be liable for false arrest.

       For these reasons, we AFFIRM the district court’s grant of summary judgment to Defendants.




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