         RECOMMENDED FOR FULL-TEXT PUBLICATION
              Pursuant to Sixth Circuit Rule 206           2    S.J. v. Hamilton County, Ohio, et al.       No. 02-3852
     ELECTRONIC CITATION: 2004 FED App. 0188P (6th Cir.)
                 File Name: 04a0188p.06                    Marc D. Mezibov, SIRKIN, PINALES, MEZIBOV &
                                                           SCHWARTZ, Cincinnati, Ohio, for Appellee. ON BRIEF:
                                                           David Todd Stevenson, Stephen K. Shaw, HAMILTON
UNITED STATES COURT OF APPEALS                             COUNTY PROSECUTING OFFICE, Cincinnati, Ohio, for
                                                           Appellants. Marc D. Mezibov, Michael N. Budelsky,
               FOR THE SIXTH CIRCUIT                       SIRKIN, PINALES, MEZIBOV & SCHWARTZ, Cincinnati,
                 _________________                         Ohio, for Appellee.

 S.J.,                            X                                            _________________
            Plaintiff-Appellee, -
                                   -                                               OPINION
                                   -  No. 02-3852                              _________________
           v.                      -
                                    >                        BOGGS, Chief Judge. This case presents the question of
                                   ,                       whether Hillcrest Training School, a juvenile facility created
 HAMILTON COUNTY, OHIO ;           -
 HILLCREST TRAINING                                        pursuant to Ohio Rev. Code § 2151.65, is cloaked with
                                   -                       Ohio’s sovereign immunity against a 42 U.S.C. § 1983 action
 SCHOOL; and WILLIAM H.            -                       brought by a former Hillcrest resident. The district court held
 HAMILTON ,                        -                       that Hillcrest was not entitled to sovereign immunity. For the
       Defendants-Appellants. -                            reasons explained below, we affirm.
                                   -
                                  N                                                       I
      Appeal from the United States District Court
     for the Southern District of Ohio at Cincinnati.         Plaintiff S.J., when a minor, was referred to Hillcrest by
      No. 98-00603—Susan J. Dlott, District Judge.         order of the Hamilton County Juvenile Court. His complaint
                                                           alleges that he was sexually assaulted several times by a
                Argued: December 9, 2003                   fellow resident, R.B., who sneaked into his room at night.
                                                           The last attack took place on the night after S.J. had informed
            Decided and Filed: June 22, 2004               a Hillcrest employee about the assaults. R.B. later admitted
                                                           attacking S.J., and was adjudicated a delinquent. S.J. sued
 Before: BOGGS, Chief Judge; and BATCHELDER and            Hillcrest, its superintendent, and Hamilton County under
             SUTTON, Circuit Judges.                       § 1983, alleging that they violated his Fourteenth Amendment
                                                           rights by failing to investigate and prevent sexual abuse, and
                   _________________                       failing to train Hillcrest employees adequately. The
                                                           defendants moved for summary judgment on the basis of
                        COUNSEL                            sovereign immunity, arguing that Hillcrest is an arm of the
                                                           State of Ohio because it was created by state law and is
ARGUED: David Todd Stevenson, HAMILTON COUNTY              overseen by the juvenile court. The magistrate judge
PROSECUTING OFFICE, Cincinnati, Ohio, for Appellants.      disagreed, and recommended denying the motion. The

                             1
No. 02-3852           S.J. v. Hamilton County, Ohio, et al.              3    4      S.J. v. Hamilton County, Ohio, et al.        No. 02-3852

district court adopted the magistrate’s recommendation in                     Keller v. Cent. Bank of Nigeria, 277 F.3d 811, 815 (6th Cir.
relevant part.                                                                2002).
   Later, the defendants filed a motion to dismiss the                                                         II
complaint for lack of subject matter jurisdiction, in effect
asking the district court to revisit its ruling on sovereign                                                  A
immunity. 1 The motion argued that dismissal was necessary
in light of this court’s unpublished decision in Oswald v.                       Hillcrest operates within a statutory framework that vests
Lucas County Juvenile Det. Ctr., No. 99-3771, 2000 U.S.                       both the state and Hamilton County with a role in its
App. LEXIS 27990 (6th Cir. Oct. 30, 2000), which held that                    administration. Juvenile training facilities such as Hillcrest
a “juvenile detention facility” defined under former Ohio Rev.                belong to a broader class of facilities referred to in the Ohio
Code § 2151.34 (now Ohio Rev. Code § 2152.41) was “part                       Code as “single county or joint-county facilities.” Ohio Rev.
of the juvenile court, which is an arm of the state,” and                     Code § 307.021(A) (authorizing board of county
therefore was entitled to sovereign immunity. Id. at ** 5-6.                  commissioners to construct such facilities). The same
However, the district court concluded that the “juvenile                      statutory provision states generally that “the juvenile court
detention facility” at issue in Oswald was distinguishable                    [is] . . . the branch of state government having jurisdiction
from Hillcrest, a juvenile facility defined under Ohio Rev.                   over any such . . . juvenile . . . facilities.” Ibid. Hillcrest’s
Code § 2151.652 and it denied the motion to dismiss.                          specific authorizing statute, Ohio Rev. Code § 2151.65,
                                                                              provides:
   Defendants timely appealed. Under the collateral order
doctrine, we have jurisdiction over an appeal from a district                     Upon the advice and recommendation of the juvenile
court’s denial of sovereign immunity to a government entity                       judge, the board of county commissioners may provide
that claims to be an “arm of the state.” Puerto Rico Aqueduct                     by purchase, lease, construction, or otherwise a school
and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139                             . . . or other facilit[y] where delinquent children, . . .
(1993); Tenn. v. United States Dep’t of Transp., 326 F.3d                         dependent children, abused children, unruly children, . . .
729, 733 (6th Cir. 2003). We review de novo the legal                             or neglected children or juvenile traffic offenders may be
question of whether Hillcrest is entitled to sovereign                            held for training, treatment, and rehabilitation. . . . Such
immunity, Timmer v. Mich. Dep’t of Commerce, 104 F.3d                             . . . facility . . . shall be maintained as provided in
833, 836 (6th Cir. 1997), but accept any pertinent factual                        Chapters 2151. and 2152. of the Revised Code. [. . . ]
findings by the district court unless they are clearly erroneous,
                                                                                  The juvenile court shall determine:

    1                                                                             (A) The children to be admitted to any school . . . or
     The district co urt pro perly construed this late-filed motion as a          other facility maintained under this section;
“suggestion” that it lacked subject-matter jurisdiction. Such a filing may
be made at any time. Fed. R. Civ. P. 12 (h)(3); Von D unser v. Aronoff,
                                                                                  (B) The period such children shall be trained, treated, and
915 F.2d 1071, 10 74 (6th Cir. 1990).                                             rehabilitated at such facility;
                                                                                  (C) The removal and transfer of children from such
    2                                                                             facility.
     W e will henceforth refer to H illcrest, and other facilities under
§ 2151.65 , as “juvenile training facilities,” to distinguish them from the
“juvenile detention facilit[ies]” authorized by § 2152.41.
No. 02-3852        S.J. v. Hamilton County, Ohio, et al.      5    6       S.J. v. Hamilton County, Ohio, et al.                 No. 02-3852

Thus, by the terms of the statute, the initial request to create   instrumentalities,” Regents of Univ. of Calif. v. Doe, 519 U.S.
a facility such as Hillcrest originates from the juvenile court,   425, 429 (1997), or, in other words, to those government
which is a division of the Ohio Court of Common Pleas.             entities that act as “arm[s] of the State.” Mt. Healthy City
Ohio Rev. Code § 2151.08. The county possesses the                 Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977).
discretion to grant or refuse this initial request. However, if    However, it “does not extend to counties and similar
the county agrees, the facility must “be maintained as             municipal corporations.” Ibid.
provided in [Ohio Rev. Code §§] 2151. and 2152.” Ibid.
These sections authorize the juvenile court to demand funds           Because Ohio counties lack sovereign immunity, see ibid.
from the county that are reasonably necessary to operate           (holding that an Ohio school board lacked immunity because
Hillcrest, as part of the court’s annual appropriation for         it was “more like a county” than an arm of the state); Alkire
“administrative expenses.” Ohio Rev. Code § 2151.10. The           v. Irving, 330 F.3d 802, 811 (6th Cir. 2003), we affirm,
county must provide the funds requested if they are                without further discussion, the portion of the district court’s
“reasonably necessary to meet . . . [the] administrative           order denying immunity to defendant Hamilton County.
expenses of the court” and its facilities. Ibid.; see § 2151.13;
State ex rel. Wilke v. Hamilton County Bd. of Comm’rs, 734            The difficult issue is determining whether the same is true
N.E.2d 811, 818 (Ohio 2000) (county must pay court’s               of Hillcrest itself – and, derivatively, of its superintendent,
funding request unless it can prove that request is an abuse of    Mr. Hamilton, since for the purpose of sovereign immunity
discretion). The statutory scheme also authorizes the juvenile     “individuals sued in their official capacities stand in the shoes
court to appoint Hillcrest’s superintendent and to determine       of the entity they represent.” Alkire, 330 F.3d at 811; see
his compensation. Ohio Rev. Code § 2151.70.                        Kentucky v. Graham, 473 U.S. 159, 165 (1985).3 Hillcrest
                                                                   presents a two-step argument in support of its claim of
  Hillcrest receives the large majority of its funding from        sovereign immunity. It contends that the Hamilton County
Hamilton County. It also receives some funds from the Ohio         Juvenile Court is itself an arm of the state, and that Hillcrest
Department of Youth Services and the Ohio Department of            is sufficiently bound to the Juvenile Court to count as “a part
Mental Health, and it is subject to standards promulgated by
the Department of Youth Services.
                               B                                       3
                                                                         In theory, M r. Hamilton m ight be immune, eve n if Hillcrest is not,
                                                                   if he was personally acting as an “arm of the state” in connection with the
   The text of the Eleventh Amendment explicitly refers to the     alleged conduct described in S.J.’s co mplaint – in effect, if his actions or
immunity of the states from suits “commenced or prosecuted         omissions giving rise to S.J.’s claim were prompted by a state statute. See
. . . by Citizens of another State.” U.S. Const., amend. XI.       Brotherton v. Cleveland, 173 F.3d 552 , 563 (6th Cir. 19 99).
However, the Supreme Court has made clear that the                      However, the standard to e stablish such a defense is rigorous, and Mr.
sovereign immunity of the states “neither derives from nor is      Hamilton does not satisfy it. A local actor who “makes conscious policy
                                                                   decisions,” and does not simply “mechanically adopt and enforce . . . a
limited by the terms of the Eleventh Amendment,” Alden v.          state policy,” cannot claim to have been acting as an arm of the state
Maine, 527 U.S. 706, 713 (1999), and that it extends to            unde r this theory. Id. at 565.
actions brought against a state by its own citizens, Hans v.            Here, while Mr. Hamilton was authorized by statute to supervise the
Louisiana, 134 U.S. 1, 15 (1890). Sovereign immunity               juvenile facility at Hillcrest, the statute d id not instruct him abou t how to
applies not only to the states themselves, but also to “state      exerc ise that authority. See Ohio Rev. Cod e § 2151 .70. His entitlement
                                                                   to sovereign immunity thus stand s or falls with that of H illcrest.
No. 02-3852        S.J. v. Hamilton County, Ohio, et al.      7    8    S.J. v. Hamilton County, Ohio, et al.       No. 02-3852

of” the court, thereby entitling it to share in the court’s        of Mumford’s reasoning, noting that Mumford had not taken
immunity. Appellant Br. at 7.                                      into account, as the Supreme Court requires, whether the state
                                                                   would be legally responsible for a judgment against an Ohio
  To determine whether an entity is an arm of the state, courts    court. See Alkire, 330 F.3d at 811. We did not decide
have traditionally looked to several factors, including:           whether Mumford was correct; instead, we remanded the issue
(1) whether the state would be responsible for a judgment          so that the federal district court could engage in fact finding
against the entity in question; (2) how state law defines the      on the question of whether a judgment against the county
entity; (3) what degree of control the state maintains over the    court would be paid by a county or by the state itself, and
entity; and (4) the source of the entity’s funding. Brotherton,    could apply the proper arm-of-the-state analysis in the first
173 F.3d at 560 (summarizing past decisions). In an earlier        instance. Id. at 813. We have not yet had an opportunity to
case whose analysis focused upon state law, we held that an        re-examine those facts. Cf. Harmon v. Hamilton County Ct.
Ohio Court of Common Pleas was an arm of the state cloaked         Of Common Pleas, 83 Fed. Appx. 766, 768 (6th Cir. Dec. 8,
with sovereign immunity. Mumford v. Basinski, 105 F.3d             2003) (unpublished order) (concluding that it was “not clear,”
264, 269 (6th Cir. 1997); see also Kelley v. Mun. Cts., 97 F.3d    in light of Alkire, whether an Ohio court of common pleas had
902, 907-08 (7th Cir. 1996) (holding that municipal court was      sovereign immunity).
a unit of the judicial branch of the state entitled to sovereign
immunity); Franceschi v. Schwartz, 57 F.3d 828, 831 (9th              Resolving the present case does not require us to decide
Cir. 1995) (per curiam) (same); Harris v. Mo. Ct. of App., W.      whether one of the several Mt. Healthy criteria has now
Dist., 787 F.2d 427, 429 (8th Cir. 1986) (same; Missouri state     become the sole criterion for determining whether an agency
court); cf. Foster v. Walsh, 864 F.2d 416, 418-19 (6th Cir.        is a state entity for sovereign immunity purposes. But there
1988) (per curiam) (determining that state court is not a          are significant reasons to doubt such a suggestion. The
“person” suable under 42 U.S.C. § 1983).                           Supreme Court explained in Hess v. Port Auth. Trans-Hudson
                                                                   Corp., 513 U.S. 30 (1994), that the sovereign immunity
   Our recent decisions have modified this arm-of-the-state        doctrine is about money and dignity – it not only protects a
framework, in light of Supreme Court opinions that “ha[ve]         State’s treasury, but also “pervasively . . . emphasizes the
. . . explicitly [stated] that . . . the most important factor     integrity retained by each State in our federal system.” Id. at
bearing on the Eleventh Amendment question” is “who would          39; see id. at 47 (noting that when immunity factors cut in
pay for a damage judgment” against the entity being sued.          different directions, “the Eleventh Amendment’s twin reasons
Alkire, 330 F.3d at 811 (citing, inter alia, Regents of Univ. of   for being remain our prime guide” in arm-of-the-state
Calif. v. Doe, 519 U.S. 425, 430 (1997)). The emphasis on          inquiry). Indeed, in the important recent case of Fed.
“who pays” is substantial: our recent decisions have left open     Maritime Comm’n v. S.C. State Ports Auth., 535 U.S. 743
the question of “[w]hether we view as dispositive [the]            (2002), the Court renewed that emphasis, declaring: “The
emphasis on the State treasury, or [simply] interpret it as        preeminent purpose of state sovereign immunity is to accord
placing significant weight on one factor of a multi-factor         States the dignity that is consistent with their status as
test.” Brotherton, 173 F.3d at 561.                                sovereign entities.” Id. at 760 (emphasis added).
  Alkire v. Irving has been our latest word on this evolving         Examining the contours of related sovereign immunity
legal issue. In Alkire, a § 1983 action against an Ohio county     doctrines reinforces the impression that values beyond
court, we expressed some doubt about the continued validity        guarding the public fisc play a role in the arm-of-the-state
No. 02-3852        S.J. v. Hamilton County, Ohio, et al.        9    10       S.J. v. Hamilton County, Ohio, et al.               No. 02-3852

inquiry. The Eleventh Amendment ordinarily bars all actions            As noted above, our inquiry begins by asking who would
brought against a State itself, even injunctive actions that         be responsible for a judgment against Hillcrest. Hillcrest’s
raise no risk of an impact on the treasury. See Pennhurst St.        brief concedes (consistent with the magistrate judge’s finding,
Sch. & Hosp. v. Halderman, 465 U.S. 89, 102 (1984).                  adopted by the district court) that Hamilton County, not the
Conversely, it does not ordinarily bar injunctive actions            state of Ohio, would pay such a judgment. Appellant Br. at
against state officials, even when those actions may have a          18. Thus, this “important” factor weighs against sovereign
substantial impact on state finances. See Edelman v. Jordan,         immunity. Doe, 519 U.S. at 430.
415 U.S. 651, 667 (1974).
                                                                        The second factor is how state law defines Hillcrest. As we
   To the extent that considerations of dignity are relevant in      have noted, the authorizing statute describes Hillcrest as a
determining whether an entity is protected by state sovereign        “single-county juvenile facility,” rather than, for example, as
immunity, one would expect this factor to weigh heavily in a         a state facility. Ohio Rev. Code § 2151.65. However, many
suit against a state court. See Erie R. Co. v. Tompkins, 304         of the relevant statutory provisions suggest a significant
U.S. 64, 78-79 (1938) (“[T]he constitution of the United             connection between the state and Hillcrest. Under Ohio law,
States . . . recognizes and preserves the autonomy and               it is “a public purpose and function of the state” to “acquire,
independence of the states . . . in their judicial departments.”).   construct, [and] renovate” training facilities such as Hillcrest.
Such courts are the “adjudicative voice” of the state itself.        Ohio Rev. Code § 307.021(A). The counties act as “state
Harris, 787 F.2d at 429. That is particularly true in the            agencies . . . perform[ing] duties of the state” in carrying out
context of a court system that, like Ohio’s, is mandated by the      such capital improvements. Ibid.4 Moreover, the juvenile
state constitution to be uniform and to be supervised by one         court, a “branch of state government,” exercises “jurisdiction”
supreme court. Ohio Const. art. IV, § 5; Foster, 864 F.2d at         over Hillcrest. Ibid. We conclude that the state-law factor
418. While lower state courts may sometimes be funded by             somewhat supports extending sovereign immunity to
the counties where they sit, separation of powers concerns           Hillcrest, though other entities, such as a court itself, would
frequently preclude counties and other branches of                   present a stronger claim to sovereign immunity in this regard.
government from denying reasonable funding for the
operation of the courts. See, e.g., Ohio Rev. Code                     Turning to the third factor, state control, we find that Ohio
§ 307.01(B); State ex rel. Weaver v. Lake County Bd. of              exercises some, but limited, control over Hillcrest. The
Comm’rs, 580 N.E.2d 1090, 1092 (Ohio 1991); Mumford,                 Hamilton County Juvenile Court, a part of the Ohio judicial
105 F.3d at 269; cf. Tennessee v. Lane, 124 S. Ct. 1978, 1991        system, controls the admission of juveniles to the facility.
n.16 (2004) (observing that “the provision of judicial               The court appoints Hillcrest’s supervisor and sets his salary,
services” is “an area in which local governments are typically       though it does not administer Hillcrest directly. The juvenile
treated as arms of the state for Eleventh Amendment                  court also possesses discretion over the facility’s budget:
purposes.”) (punctuation omitted).
  In the present case, however, we are asked only to
determine whether Hillcrest is an arm of the state, not whether           4
the Hamilton County Juvenile Court itself is such. We                      W e note that this provision, by its terms, applies only to tasks
conclude that Hillcrest is not an arm of the state.                  performed in connection with the acquisition, construction, or renovation
                                                                     of juvenile facilities, and not to the ordinary operations of such facilities,
                                                                     which are the activities that gave rise to S.J.’s claim here.
No. 02-3852           S.J. v. Hamilton County, Ohio, et al.           11     12   S.J. v. Hamilton County, Ohio, et al.        No. 02-3852

within reasonable limits, its funding requests for Hillcrest                 N.E.2d 80, 83 (Ohio 1981). “Common pleas courts and their
must be honored by the county.                                               divisions possess inherent authority to order funding that is
                                                                             reasonable and necessary to the court’s administration of its
  On the other hand, the authorizing statute vests Hamilton                  business.” Wilke, 734 N.E.2d at 818. In our judgment, the
County with discretion over the crucial decision of whether to               co-operative scheme created by Ohio Rev. Code § 2151.65
create a facility such as Hillcrest at all. Ohio Rev. Code                   does not offend these principles. Giving the county a say in
§ 2151.65. This fact marks an important difference between                   the initial creation of Hillcrest is not the same as giving it a
Hillcrest and the juvenile detention facility at issue in this               say in the core functions of the juvenile court. Section
court’s unpublished decision in Oswald. Oswald concluded                     2151.65 authorizes the creation of a separate, subsidiary
that “[u]nder Ohio law, a county juvenile detention center is                government entity that is to be partially administered by the
part of the juvenile court, which is an arm of the state.” 2000              juvenile court, when the court and the county agree to do so.
U.S. App. LEXIS 27990, at *2 (citing former Ohio Rev. Code                   Once such a facility is created, the sphere of “judicial
§ 2151.34). We agree with the district court that Oswald is                  administration” presumably extends to include the new entity,
distinguishable from the present case.5 Former § 2151.34,                    and the statutory scheme accordingly denies the county
now Ohio Rev. Code § 2152.41, the provision that authorized                  discretion in funding Hillcrest’s operations, consistent with
the “juvenile detention facility” at issue in Oswald, provides               Ohio’s law of separation of powers. See ibid.
that the county “shall” create the detention facility upon the
recommendation of the juvenile court. Ibid. (emphasis                          On balance, we conclude that the state control factor favors
added); see S.J. v. Hamilton County, No. C-1-98-603, Order                   sovereign immunity, though not as strongly as it would in the
Denying Defendant’s Motion to Dismiss, slip op. at 4. Here,                  case of a juvenile detention facility under § 2152.41 (as in
in contrast, § 2151.65 provides only that the county “may”                   Oswald) or an Ohio court itself.
construct a juvenile facility such as Hillcrest, if the juvenile
court so recommends. The difference in wording, at a crucial                   The final factor, the source of Hillcrest’s funding, can be
point, in two such closely related statutory provisions as                   dealt with quickly. The parties have stipulated that the great
§§ 2152.41 and 2151.65, clearly vests the county with                        majority of Hillcrest’s funding comes from Hamilton County,
authority to grant or deny the juvenile court’s initial request              not the state of Ohio. Hillcrest’s budget in 2000 was
to create a facility such as Hillcrest.                                      approximately $9,000,000; approximately $710,000 of this
                                                                             came from state sources, and the rest from the county.
  In so construing this statutory language, we recognize that                Accordingly, this factor weighs strongly against extending
Ohio law places limits on the interaction between a legislative              sovereign immunity to Hillcrest.
entity such as Hamilton County’s Board of Commissioners
and a judicial entity such as the Hamilton County Juvenile                      Thus, of the four factors typically employed in the arm-of-
Court. Ohio’s constitution forbids “granting to a legislative                the-state inquiry, two (status under state law, and level of
body . . . the ‘power of the purse’ over judicial                            state control) weigh somewhat in favor of sovereign
administration.” State ex rel. Johnston v. Taulbee, 423                      immunity, and two (responsibility for a judgment, and source
                                                                             of funding) clearly weigh against sovereign immunity.
                                                                             Because our precedents and the Supreme Court’s case law
    5                                                                        still single out the factor of responsibility for a judgment as
     As an unp ublished decision o f this court, Oswald also lacks binding   the most important (albeit not exclusive) determinant of arm-
precedential value.
No. 02-3852       S.J. v. Hamilton County, Ohio, et al.     13

of-the-state status, we hold that Hillcrest, as a juvenile
training facility under Ohio Rev. Code § 2151.65, is not
entitled to assert sovereign immunity as an arm of the state of
Ohio. Accordingly, the district court properly denied the
defendants’ motion to dismiss S.J.’s complaint for lack of
subject matter jurisdiction.
                              III
 For the foregoing reasons, the district court’s order is
AFFIRMED.
