           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                        2    Summers v. Leis                             No. 03-3347
        ELECTRONIC CITATION: 2004 FED App. 0148P (6th Cir.)
                    File Name: 04a0148p.06                                Cincinnati, Ohio, for Appellant. Kenneth L. Lawson,
                                                                          LAWSON & ASSOCIATES, Cincinnati, Ohio, for Appellee.
UNITED STATES COURT OF APPEALS                                               HOOD, D. J., delivered the opinion of the court, in which
                                                                          COLE, J., joined. BATCHELDER, J. (pp. 15-18), delivered
                  FOR THE SIXTH CIRCUIT                                   a separate concurring opinion.
                    _________________
                                                                                              _________________
 TERRY SUMMERS ,                  X
                                                                                                  OPINION
             Plaintiff-Appellee, -                                                            _________________
                                   -
                                   -  No. 03-3347
           v.                                                                HOOD, District Judge. Terry Summers (“Summers”)
                                   -
                                    >                                     brought this 42 U.S.C. § 1983 action against Hamilton
                                   ,                                      County Sheriff Simon Leis (“Leis”), certain unnamed
 SIMON LEIS , Sheriff,             -                                      deputies employed by him, and Hamilton County, Ohio,
         Defendant-Appellant. -                                           alleging, in part, violations of the First, Fourth, and
                                  N                                       Fourteenth Amendments to the United States Constitution.
      Appeal from the United States District Court                        Leis appeals the district court’s orders denying his motion for
     for the Southern District of Ohio at Cincinnati.                     summary judgment on the grounds of qualified immunity and
     No. 02-00686—Susan J. Dlott, District Judge.                         Younger abstention “without prejudice to resubmission,” and
                                                                          entering a scheduling order requiring full discovery. For the
                  Submitted: October 30, 2003                             reasons set forth below, we REVERSE the judgment of the
                                                                          district court and REMAND for further proceedings
               Decided and Filed: May 21, 2004                            consistent with this opinion.

   Before: BATCHELDER and COLE, Circuit Judges;                               I. FACTUAL AND PROCEDURAL HISTORY
               HOOD, District Judge.*
                                                                            Summers, a resident of Cincinnati, Ohio, actively protests
                      _________________                                   the police misconduct, judicial misconduct, and racial
                                                                          injustice he perceives to exist in Hamilton County, Ohio. On
                            COUNSEL                                       September 18, 2002, and September 23, 2002, he was
                                                                          engaging in such protests on the public sidewalk in front of
 ON BRIEF: David Todd Stevenson, Joseph M. Hutson,                        the Hamilton County Courthouse. During both protests,
HAMILTON COUNTY PROSECUTING OFFICE,                                       Summers dragged the American Flag on the ground and, on
                                                                          both occasions, he was arrested by Hamilton County deputy
                                                                          sheriffs. At the time of his arrests, Summers was charged
                                                                          with disorderly conduct in violation of Ohio Revised Code
    *
     The Honorable Joseph M. Hood, United States District Judge for the   § 2917.11 and carrying concealed weapons in violation of
Eastern District of Kentucky, sitting by designation.

                                  1
No. 03-3347                                      Summers v. Leis            3    4       Summers v. Leis                                   No. 03-3347

Ohio Revised Code § 2923.12.1 These charges are currently                          Leis filed a motion for summary judgement on October 15,
pending in the Hamilton County Municipal Court.2 Summers                         2002, on the grounds of abstention, qualified immunity, state
has filed motions contesting the validity of his arrests on First                based immunities, and failure to state a claim. In response, on
Amendment grounds in the Hamilton County Municipal                               October 29, 2002, Plaintiff-Appellee filed a motion to hold
Court.                                                                           Sheriff Leis’s motion for summary judgment in abeyance
                                                                                 until completion of discovery. On February 18, 2003, after
   On September 24, 2002, while the charges against                              the issue was fully briefed, the district court denied
Summers were pending in the Hamilton County Municipal                            Summers’s motion as moot, and denied “without prejudice to
Court, Summers filed a 42 U.S.C. § 1983 complaint in the                         resubmission” Leis’s motion for summary judgment,
United States District Court, Southern District of Ohio,                         declining to address the merits of the motion pending the
alleging, in part, violations of the First, Fourth, and                          completion of discovery.4 On February 18, 2003, the district
Fourteenth Amendments to the United States Constitution.                         court also entered a scheduling order for the completion of
The complaint appears to assert two distinct causes of action.                   discovery. A timely notice of appeal was filed.
The first, entitled “First Claim for Relief Injunction,” relies
on the First Amendment and asks the Court to permanently                                         II. STANDARD OF REVIEW
enjoin Leis from arresting him for engaging in protests and
symbolic speech. The second cause of action seems to assert                        We review a grant or denial of summary judgment de novo,
a claim based on alleged violations of the First and Fourteenth                  using the same Fed. R. Civ. P. 56(c) standard as the district
Amendments for arresting and incarcerating Summers for a                         court. Cox v. Kentucky Department of Transportation, 53
minor misdemeanor in violation of Ohio law. Summers                              F.3d 146, 149 (6th Cir. 1995) (citing Hansard v. Barrett, 980
sought a declaration from the district court that the acts                       F.2d 1059 (6th Cir. 1992)). Summary judgment is
complained of are unconstitutional, an order permanently                         appropriate where “the pleadings, depositions, answers to
enjoining defendants from the “unconstitutional violations                       interrogatories, and admissions on file, together with the
complained of,” and damages based on his state law claims.3                      affidavits, if any, show 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). In
    1
         Among the “weapons” at issue are a hammer, crow bar, and pocket         deciding a motion for summary judgment, we view the factual
knife.                                                                           evidence and draw all reasonable inferences in favor of the
    2
                                                                                 non-moving party. National Enterprises v. Smith, 114 F.3d
       The disorderly conduct charge from September 18, 200 2, is a
misdemeanor of the fourth degree, carrying a maximum penalty of 30
days in jail and a $250 fine . The disorderly conduct charge from
September 24, 2002, is a minor misdemeanor punishable by a fine of               commission of a minor misdem eano r,“ issue a citation in lieu of a
$100. Both charges of carrying concealed weapons are misdemeanors of             physical arrest in the absence of certain specified circumstances.
the first degree, carrying a maximum penalty of six months in jail and a
$1,000 fine.                                                                         4
                                                                                       The actual motion for summary judgment was not included in the
    3
                                                                                 parties Joint Appendix, but was frequently referenced by the parties.
       From the com plaint, the plaintiff-appellee’s state claims are unclear.   Unfortunate ly, the district court’s o rder denying summary judgm ent did
It appea rs Plain tiff-Appellee is alleging the tort of false arrest and         not address any of the substantive issues raised by said motion.
violation of Ohio Rev. Cod e §2935 .36 which requires that arresting             Therefore, there is no thing in the record, other than the parties claims,
officers, “when otherwise authorized to arrest a person for the                  regarding the nature of the motion for summary judgm ent.
No. 03-3347                              Summers v. Leis       5    6        Summers v. Leis                          No. 03-3347

561, 563 (6th Cir. 1997). To prevail, the non-movant must           refusal to grant relief. He also argues that because the motion
show sufficient evidence to create a genuine issue of material      can be renewed at the close of discovery, Leis retains the
fact. Klepper v. First Am. Bank, 916 F.2d 337, 341-42 (6th          possibility that the qualified immunity defense will shield him
Cir. 1990) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322,     from trial. Leis, on the other hand, argues that the district
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). A mere scintilla of         court’s denial of the motion as premature operates as a final
evidence is insufficient; “there must be evidence on which the      decision on qualified immunity because it deprives him of a
jury could reasonably find for the [non-movant].” Anderson          key benefit of the doctrine’s protection - immunity from suit,
v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91       not just from liability. Further, Leis contends that in order to
L.Ed.2d 202 (1986).                                                 adequately oppose the motion for summary judgment based
                                                                    on a need for further discovery, Summers should have filed an
  Additionally, this Court conducts de novo review of the           explanatory Fed. R. Civ. P. 56(f) affidavit.
district court’s denial of a defendant’s motion for summary
judgment on the basis of qualified immunity because, as we              1.    Jurisdiction
have noted, "the issue whether qualified immunity is
applicable to an official’s actions is a question of law."            Jurisdiction in this matter arises under 28 U.S.C. § 1291,
Chappel v. Montgomery Country Fire Protection Dist. No. 1,          granting jurisdiction to hear appeals from final judgments of
131 F.3d 564, 573 (6th Cir. 1997) (citing Dickerson v.              district courts. Generally, a denial of summary judgment is
McClellan, 101 F.3d 1151, 1157 (6th Cir. 1996)). “Because           not a final judgment for purposes of appeal. Hoover v.
the issue of qualified immunity is a legal question, no             Radabaugh, 307 F.3d 460, 465 (6th Cir. 2002); Johnson v.
deference is due the district court’s conclusion.” O’Brien v.       Jones, 515 U.S. 404 (1995). Courts, however, have
City of Grand Rapids, 23 F.3d 990, 998 (6th Cir. 1994).             recognized that, under certain circumstances, denials of
                                                                    qualified immunity on summary judgment by a district court
                     III. DISCUSSION                                may be appealed as a collateral order.
A. Qualified Immunity                                                  An interlocutory decision appealable as a final order must
                                                                    satisfy two criteria: (1) “[I]t must conclusively determine the
  In this case, Leis filed a motion for summary judgment            disputed question,” and (2) that question must involve a claim
based, in part, on the defense of qualified immunity. The           “of right separable from, and collateral to, rights asserted in
district court’s February 18, 2002, order declined to assess the    the action.” Mitchell v. Forsyth, 482 U.S. 511, 527 (1985)
merits of Leis’s motion for summary judgment, denying the           (internal citations omitted). There is no doubt that a decision
motion “without prejudice to resubmission.” This ruling was         on qualified immunity involves a claim of right that is
effectively a denial of qualified immunity. The district            separate from, and collateral to, rights asserted in the action.
court’s decision was based on an apparent belief that any           Id. The key issue thus becomes whether the district court’s
decision regarding qualified immunity was premature and             refusal to address the merits of the Leis’s motion conclusively
should await the close of discovery.                                determined the issue in this case.
  Summers argues that because the district court did not rule         The purpose of a qualified immunity defense is not only
on the merits of the asserted qualified immunity defense, this      protection from civil damages but protection from the rigors
court presently lacks jurisdiction to review the district court’s   of litigation itself, including the potential disruptiveness of
No. 03-3347                              Summers v. Leis           7   8       Summers v. Leis                                     No. 03-3347

discovery. See Pierson v. Ray, 386 U.S. 547 (1967); Harlow             abeyance pending additional discovery. Id. Because the
v. Fitzgerald, 457 U.S. 800, 816 (1982); Mitchell v. Forsyth,          order denying summary judgment was premised on the legal
472 U.S. 511, 526 (1985). In fact, the Court in Anderson v.            question of qualified immunity rather than the existence of a
Creighton emphasized that “[o]ne of the purposes of the                genuine issue of material fact, the Court retained jurisdiction
Harlow qualified immunity standard is to protect public                and found that an interlocutory appeal was proper. See
officials from the ‘broad-ranging discovery’ that can be               Skousen, 305 F.3d at 520.
‘particularly disruptive of effective government.’” Anderson
v. Creighton, 483 U.S. 635, 646 (1987) (quoting Harlow, 457              As mentioned above, the district court’s denial of Leis’s
U.S. at 817). So, here, even though the defendant-appellant            summary judgment motion was based on an apparent belief
is free to renew his motion later, “[he] would in the meantime         that any decision regarding qualified immunity was premature
be forced to go through a large part of the litigation process         and should await the close of discovery. When a motion for
that the qualified immunity doctrine seeks to avoid.” Wallin           summary judgment is filed, the party opposing the motion
v. Norman, 317 F.3d 558, 563 (6th Cir. 2003).                          may, by affidavit, explain why he is unable to present facts
                                                                       essential to justify the party’s opposition to the motion. Fed.
  This Court has held on multiple prior occasions that, when           R. Civ. P. 56(f). The burden is on the party seeking
faced with a motion based on qualified immunity, a district            additional discovery to demonstrate why such discovery is
court can not avoid ruling on the issue. See e.g., Skousen v.          necessary. See Wallin, 317 F.3d 558. In this instance, in
Brighton High School, 305 F.3d 520 (6th Cir. 2002). In the             order to adequately oppose Leis’s motion for summary
case of Skousen v. Brighton High School, we concluded that             judgment, Summers should have filed a Fed. R. Civ. P. 56(f)
a district court committed legal error in dismissing a motion          affidavit explaining his need for additional discovery.5
for summary judgement based on qualified immunity solely
because discovery was not complete. See Skousen, 305 F.3d                Summers argues that he did in fact submit the affidavit of
520 (6th Cir. 2002). We held that, because the defense of              his counsel which ostensibly states why further discovery is
qualified immunity is a threshold question, if the defense is          needed. That affidavit, however, merely recites the same
properly raised prior to discovery, the district court has a duty      conclusory allegation[s] contained in the complaint: ‘Counsel
to address it. Id.                                                     believes evidence will demonstrate the Plaintiff was arrested
                                                                       for no other reason than dragging the American Flag.’
  Rather than dismiss the [summary judgment] motion                    (Lawson Aff. ¶ 3). This does not meet the requirements of
  because discovery was not complete, the district court               Fed. R. Civ. P. 56(f).
  was required to determine - prior to permitting further
  discovery - whether [Plaintiff’s] complaint alleged the
  violation of a constitutional right at all, and if so, whether
  that right was clearly established at the time of the
  alleged violation.                                                       5
                                                                             “Pursuant to Rule 56(f) a party opposing a motion for summary
                                                                       judgment is allowed to state that he or she is unab le to present facts
Id. at 527. Only after the court inquires into whether any             essential to justify the parties oppo sition. In that situation, the district
facts material to Plaintiff’s claims are genuinely at issue, and       court may permit further discovery so that the nonmoving party can
only upon a finding that material facts are in fact in dispute is      adequately oppose the motion for summary judgment. But it is up to the
a court at liberty to hold a motion for summary judgment in            party opp osing the mo tion to state why more discovery is needed.”
                                                                       Wallin v. Norman, 317 F.3d 55 8, 564 (6th Cir. 2003).
No. 03-3347                            Summers v. Leis       9    10   Summers v. Leis                              No. 03-3347

  Bare allegations or vague assertions of the need for            United States Supreme Court held that a district court
discovery are not enough. United States v. Cantrell, 92 F.        considering a claim of qualified immunity must first
Supp.2d 704, 717 (S.D. Ohio 2000) (citing Lewis v. ABC            determine whether the individual claiming the immunity
Business Serv., Inc., 135 F.3d 389, 409 (6th Cir. 1998)). In      committed a constitutional violation. Saucier v. Katz, 533
order to fulfill the requirements of Fed. R. Civ. P. 56(f),       U.S. 194 (2001). The Court considered this a threshold
Summers must state with “some precision the materials he          question for, “if no constitutional right would have been
hopes to obtain with further discovery, and exactly how he        violated [by the officer’s conduct] were the allegations
expects those materials would help him in opposing summary        established, there is no necessity for further inquiries
judgment.” Simmons Oil Corp. v. Tesoro Petroleum Corp.,           concerning qualified immunity.” Id. at 201.
86 F.3d 1138, 1144 (Fed. Cir. 1996). The affidavit on which
Summers relies does neither.                                        The first question for the Court is whether Leis, acting
                                                                  under the color of state law, committed a constitutional
  In the absence of a sufficient affidavit, there is no           violation. A claimed constitutional violation must be based
justification for the district court’s determination that a       upon active unconstitutional behavior. Greene v. Barber, 310
motion for summary judgment would be premature until the          F.3d 889, 899 (6th Cir. 2002). The acts of one’s subordinates
close of discovery. Therefore, the district court erred in not    are not enough, nor can supervisory liability be based upon
ruling on Leis’s motion for summary judgment.                     the mere failure to act. Id. Summers has failed to
                                                                  demonstrate that Leis engaged in any active unconstitutional
  This Court finds that the district court’s refusal to address   behavior. In fact, Summers’s complaint attributes no specific
the merits of the defendant’s motion asserting qualified          acts to Leis at all. Summers’s claim against the Sheriff is
immunity constitutes a conclusive determination for the           based solely on the actions of his unnamed deputies.
purposes of allowing an interlocutory appeal.                     Furthermore, Summers’s complaint alleges no specific,
                                                                  unconstitutional policy, custom or practice on the part of
  2.   Merits                                                     Sheriff Leis, nor does it allege that Leis acted in any capacity
                                                                  other than employer of the deputies that arrested Summers.
  Having determined that the district court’s refusal to
address the merits of the defendant’s motion asserting              In failing to assert, much less identify, any constitutional
qualified immunity constitutes a conclusive determination for     wrong committed by Leis, Summers has failed to set forth
the purposes of allowing an interlocutory appeal, we can          anything establishing a claim under 42 U.S.C. § 1983. Thus,
consider the order as final. Thus, we now turn to the merits      the Court finds that Leis is entitled to qualified immunity.
of whether Leis is entitled to qualified immunity.                The district court erred in denying Leis’s motion for summary
                                                                  judgment on this issue.
  In an action brought pursuant to 42 U.S.C. § 1983, the
plaintiff must prove that (1) the challenged conduct was          B. Municipal Liability and Younger abstention
committed by a person acting under the color of state law, and
(2) the conduct caused a deprivation of a person’s rights or        The final two issues, whether the district court erred in
privileges protected by the laws or Constitution of the United    failing to dismiss the claims against Hamilton County, Ohio,
States. Parratt v. Taylor, 451 U.S. 527, 535 (1981), Baker v.     and whether the district court erred in failing to dismiss the
McCollan, 443 U.S. 137, 142 (1979). In Saucier v. Katz, the       action pursuant to Younger v. Harris, will be treated together
No. 03-3347                              Summers v. Leis      11    12     Summers v. Leis                              No. 03-3347

for it is in these contexts that another jurisdictional issue, an   if the City [appellant] had raised the issue of municipal
issue not broached by either party, arises.                         liability at the district court level and the district court had
                                                                    rejected that argument, this Court would not have jurisdiction
   As noted above, the dismissal of Leis’s motion for               over such an appeal under the collateral order doctrine.”
summary judgment is appealable as a final judgment to the           Crockett, 316 F.3d at 578. We explained that, in such cases,
extent that it involves issues of qualified immunity. The           the third prong of the collateral order doctrine can not be
reasoning behind such a finding, however, does not carry over       satisfied because an appellate court can effectively review the
to the questions of whether the district court erred in failing     question of municipal liability after the district court renders
to dismiss the claims against Hamilton County or in failing to      a final judgment. Id.
dismiss the entire action pursuant to Younger v. Harris. We
conclude that this Court does not have jurisdiction to address        As this Court is without jurisdiction to consider the merits
either of these issues.                                             of Hamilton County’s municipal liability defense, we decline
                                                                    to entertain this portion of the appeal.
  1.   Municipal Liability
                                                                      2.    Younger Abstention
   In Swint v. Chambers County Commission, a unanimous
Supreme Court held that the denial of summary judgment                 Abstention is treated in much the same manner as the
based on municipal liability is not immediately appealable.         municipal liability issue discussed above. The outcome is
Swint v. Chambers County Commission, 514 U.S. 35, 43                identical; this Court does not have jurisdiction to review the
(1995). The Swint Court supported their holding by pointing         issue of whether the district court erred in failing to dismiss
out that the rationale supporting immediate review of some          the action when criminal charges involving the same conduct
qualified immunity decisions does not extend to a                   and parties were pending in state court. The district court’s
municipality’s defenses to § 1983 claims. As discussed in           failure to dismiss the entire action pursuant to Younger does
more detail above, in qualified immunity cases, “the                not qualify as a final decision under 28 U.S.C. § 1291, nor
entitlement is an immunity from suit rather than a mere             does it fit within the collateral order exception to that statute.
defense to liability; and like an absolute immunity, it is          Additionally, the district court’s decision does not qualify as
effectively lost if a case is erroneously permitted to go to        an interlocutory order as defined in 28 U.S.C. § 1292.
trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The          Further, Younger abstention does not require us to decline to
Swint Court ruled that, unlike the qualified immunity               address the qualified immunity question, as the concurrence
entitlement, municipal defenses under § 1983 are not a right        suggests. As we discussed above, Summers has failed even
to immunity from trial but a “mere defense to liability.”           to allege any acts by Sheriff Leis at all. Section 1983
Swint, 514 U.S. at 43. As such, the collateral order doctrine       supervisory liability cannot be predicated on the mere failure
does not apply and a municipality’s defenses to suit may only       to act. Greene, 310 F.3d at 899. Quite simply, resolution of
be reviewed after a final judgment on the merits.                   the constitutionality of Leis’s conduct does not require us to
                                                                    address the constitutionality of the arresting deputy’s conduct.
  This Circuit has also determined that the denial of summary       Whether or not the deputies violated Summers’s
judgment based on municipal liability is not immediately            constitutional rights, Leis is entitled to dismissal of the case
appealable. See Crockett v. Cumberland College, 316 F.3d            against him.
571, 578 (6th Cir. 2003). In Crockett we stated that “...even
No. 03-3347                              Summers v. Leis      13    14    Summers v. Leis                              No. 03-3347

   We therefore focus on whether exercise of our pendent            decision is not “necessary to ensure meaningful review of”
appellate jurisdiction is appropriate. Pendent appellate            the denial of qualified immunity.
jurisdiction refers to the exercise of jurisdiction over issues
that ordinarily may not be reviewed on interlocutory appeal,          The district court’s failure to dismiss the action on the basis
but, may be reviewed on interlocutory appeal if those issues        of Younger abstention, therefore, is not "inextricably
are “inextricably intertwined” with matters over which the          intertwined" with or “necessary to ensure meaningful review
appellate court properly and independently has jurisdiction.        of” the qualified immunity appeal of Leis. Consequently, this
Chambers v. Ohio Dep’t of Human Servs., 145 F.3d 793, 797           Court lacks pendent appellate jurisdiction over that argument.
(6th Cir. 1998). This circuit has interpreted "inextricably         As we are without jurisdiction, we decline to review the
intertwined" to mean that the resolution of the appealable          district court’s failure to dismiss pursuant to Younger v.
issue "necessarily and unavoidably" decides the non-                Harris.
appealable issue. Vakilian v. Shaw, 335 F.3d 509, 521 (6th
Cir. 2003) (citing Brennan v. Township of Northville, 78 F.3d         Since the principles of Younger do not require us to abstain
1152, 1157 (6th Cir. 1996)).                                        from considering Leis’s qualified immunity, we do not
                                                                    believe it would be proper to use the asserted qualified
   A district court’s determinations of whether it must abstain     immunity defense of one defendant as a gateway to review
under Younger and whether to grant qualified immunity               the otherwise currently unappealable Younger assertions of all
require the application of separate and distinct legal standards.   the defendants. We are confident that the district court is
It is not necessary to decide whether the district court should     capable of addressing the issue in the first instance on
have abstained under Younger in order to review whether it          remand.
applied the appropriate legal standard and analysis in denying
qualified immunity to Sheriff Leis. Moreover, our review of                             IV. CONCLUSION
whether the district court improperly denied Leis qualified
immunity does not “necessarily and unavoidably” resolve the           For all the reasons set forth above, we REVERSE the
Younger abstention issue.                                           district court’s denial of summary judgment in part finding
                                                                    that Leis is entitled to qualified immunity. Additionally, we
   Pendent appellate jurisdiction may also be appropriate if        DISMISS the remainder of the appeal dealing with issues of
review of the issue of which the Court does not properly have       municipal liability and abstention for lack of appellate
jurisdiction is “necessary to ensure meaningful review” of the      jurisdiction. Finally, we REMAND this action to the district
issue of which the Court does. Archie v. Lanier, 95 F. 3d 438,      court for further proceedings consistent with this opinion.
443 (6th Cir. 1996) (citing Swint, 514 U.S. at 51). That is not
the case here. In this instance, resolution of the Younger
abstention issue is not critical because, even if the district
court is required to abstain under Younger and dismiss the
suit, such a result has no effect on whether Leis is entitled
qualified immunity. Nothing pertaining to the qualified
immunity issue could potentially interfere with ongoing state
proceedings, thus review of the court’s Younger abstention
No. 03-3347                              Summers v. Leis      15    16    Summers v. Leis                              No. 03-3347

                    _________________                               “Extraordinary circumstances” must “render the state court
                                                                    incapable of fairly and fully adjudicating the federal issues
                     CONCURRENCE                                    before it.” Kugler v. Helfant, 421 U.S. 117, 124 (1975).
                    _________________                               Where Younger abstention is appropriate, it requires dismissal
                                                                    of the complaint. Zalman, 802 F.2d at 207 n.11.
  ALICE M. BATCHELDER, Circuit Judge, concurring. I
concur in judgment only. Although I generally agree with the           The majority has reasoned that the district court’s failure to
majority’s reasoning, I believe that the federal courts should      dismiss the action pursuant to Younger does not qualify as a
have abstained from hearing the present matter and therefore        final decision and that deciding the issue of abstention is
should not have reached the merits of Summers’ claims.              unnecessary in order to review the issue of qualified
                                                                    immunity. Even in determining whether Sheriff Leis is
  Summers asked this Court not only to enjoin future arrests,       entitled to qualified immunity, however, this Court must
but also to declare that the defendants’ actions are                necessarily pass on Leis’ conduct - or lack thereof - in the
unconstitutional. Although Summers claimed that he did not          context of the two arrests. This would determine issues
seek to enjoin the state prosecutions, he in essence sought a       which, at the time the federal action was initiated, were
predetermination from the federal courts that his pending           present in the criminal proceedings before the Hamilton
motion in the state proceeding ought to be granted. Such a          County Municipal Court. We specifically cautioned against
holding necessarily impacts the state prosecution.                  such action in Zalman v. Armstrong. “[T]he principles
                                                                    underlying Younger require that the initial frame of reference
  The Supreme Court has held that absent extraordinary              for abstention purposes be determined at the time that the
circumstances, federal equity jurisdiction may not be used to       federal complaint is filed, or at the very latest, at the time a
enjoin pending state prosecutions. See Younger v. Harris,           hearing is held on the merits . . . . Any other rule would []
401 U.S. 37 (1971). The Younger abstention doctrine is              permit a district court to directly interfere in an ongoing state
based on the principle that the states have a special interest in   proceeding and yet preclude a review of the propriety of that
enforcing their own laws in their own courts. Id. at 44. The        interference by an appellate court.” Zalman, 802 F.2d at 203
rule is “designed to permit state courts to try state cases free    (emphasis added).
from interference by federal courts, particularly where the
party to the federal case may fully litigate his claim before the     The Supreme Court has specifically held that when a state
state court.” Zalman v. Armstrong, 802 F.2d 199, 205 (6th           prisoner seeks damages in a § 1983 suit, the district court
Cir. 1986) (internal quotations omitted). Thus, in applying         must consider whether a judgment in favor of the plaintiff
Younger abstention, the court must consider whether (1) a           would necessarily imply the invalidity of his conviction or
state proceeding is pending at the time the federal action is       sentence. Heck v. Humphrey, 512 U.S. 477, 487 (1994). If it
initiated; (2) an adequate opportunity is provided to raise the     would, the complaint must be dismissed unless the plaintiff
constitutional claims in state court; and (3) there are             can demonstrate that the conviction or sentence has already
extraordinary circumstances that nevertheless warrant federal       been invalidated. Id. “For example, if a state criminal
intervention. Respect for the state process precludes a             defendant brings a federal civil-rights lawsuit during the
presumption that state courts will not safeguard federal            pendency of his criminal trial, appeal, or state habeas action,
constitutional rights. Middlesex County Ethics Comm. v.             abstention [is] an appropriate response to the parallel state-
Garden State Bar Assoc., 457 U.S. 423, 431 (1982).                  court proceedings.” Id. at 487 n.8.
No. 03-3347                              Summers v. Leis       17    18   Summers v. Leis                             No. 03-3347

  We have directly addressed this issue in the exact context            Nothing prevented Summers from presenting his federal
presented here, where a § 1983 action, if successful, would          claims in the pending state court proceedings. If he had done
imply the invalidity of a future conviction on a pending             so, and the trial court had denied or otherwise failed to
criminal charge. In Shamaeizadeh v. Cunigan, 182 F.3d 391            consider Summers’ constitutional claims, he could exercise
(1999), we found that “the concerns of Heck apply pre-               his right to an appeal under Ohio law. “[P]laintiffs will have
conviction as well as post-conviction.” Id. at 398. Under the        an adequate opportunity to raise th[e] issue on appeal, which
plain holding of Shamaeizadeh, a plaintiff cannot “bring an          is sufficient for Younger purposes.” Nernberg v. City of
action seeking damages related to the criminal proceeding            Pittsburgh, 50 F. Supp. 2d 437, 440 (1999). Summers also
brought against him until a disposition in that proceeding           has access to remedies under Ohio Criminal Rule 12(C),
ha[s] been reached.” Id. at 398-99. Indeed, the statute of           which permits him to pursue a motion to dismiss by objecting
limitations does not even begin to run for criminal defendants       to the “institution of the prosecution” and defects in the
seeking to file § 1983 claims until the disposition of any           complaint. This includes Summers’ claim that he was
pending criminal proceedings. Id. at 399.                            engaged in constitutionally protected conduct at the time of
                                                                     his arrests. In short, an adequate opportunity is available for
  Appellate review of Younger abstention is therefore                Summers to raise his constitutional claims in the state court,
properly before this Court, as the question of abstention            and the district court erred in failing to dismiss this action
cannot be determined at any other time without permitting the        when criminal charges involving the same parties and conduct
type of interference against which Younger and its progeny           were pending in state court.
specifically sought to protect. It would make little sense, I
think, to decline to address the issue of abstention at this           Because abstention is appropriate, this Court should not
point, hold that qualified immunity applies to Sheriff Leis’         reach any of the claims in the complaint.
actions, and then, if we see this case again at a later stage in
the litigation, hold at that time that the district court should
have dismissed the entire action as an initial matter.
  Summers has argued that there is “no identified important
State interest in the criminal proceeding.” This belies both
the law and common sense. “A State’s decision to classify
conduct as criminal provides some indication of the
importance it has ascribed to prompt and unencumbered
enforcement of its laws.” Younger, 401 U.S. at 55 n.2
(Stewart, J., concurring). Summers can and should present his
federal claims in the state court proceedings. Where a
prosecution is threatened by state officers for alleged
violations of a state law, the state courts are the final arbiters
of the law’s meaning and application, subject only to review
by the United States Supreme Court on federal grounds
properly asserted. Douglas v. City of Jeannette, 319 U.S.
157, 163 (1943).
