                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 14a0281p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


 S.L., a minor, by and through his guardian and next     ┐
 friend K.L.; K.L., individually and on behalf of all    │
 others similarly situated,                              │
                                                         │       No. 13-3892
                                Plaintiffs-Appellants,
                                                         │
                                                          >
                                                          │
 RICHARD ROE, et al.,
                                                          │
                                              Plaintiffs, │
                                                          │
        v.                                                │
                                                          │
                                                          │
 PIERCE TOWNSHIP BOARD OF TRUSTEES, et al.,               │
                                            Defendants, │
                                                          │
                                                          │
 THOMAS G. DELGRANDE; EDWARD S. BARTLEY, aka
                                                          │
 Shawn Bartley, aka E. Shawn Bartley, individually │
 and on behalf of all others similarly situated,          │
                                Defendants-Appellees. │
                                                          ┘
                           Appeal from the United States District Court
                          for the Southern District of Ohio at Cincinnati.
                      No. 1:07-cv-00986—Timothy S. Black, District Judge.
                                     Argued: July 30, 2014
                            Decided and Filed: November 17, 2014

               Before: SILER, BATCHELDER, and DONALD, Circuit Judges.

                                      _________________

                                          COUNSEL

ARGUED: Curt C. Hartman, THE LAW FIRM OF CURT C. HARTMAN, Amelia, Ohio, for
Appellants. Frank H. Scialdone, MAZANEC, RASKIN & RYDER CO., L.P.A., Cleveland,
Ohio, for Appellees. ON BRIEF: Curt C. Hartman, THE LAW FIRM OF CURT C.
HARTMAN, Amelia, Ohio, for Appellants. Frank H. Scialdone, MAZANEC, RASKIN &
RYDER CO., L.P.A., Cleveland, Ohio, for Appellees.



                                                1
No. 13-3892            S.L., et al. v Pierce Twp. Bd. of Trustees, et al.             Page 2

                                      _________________

                                            OPINION
                                      _________________

       ALICE M. BATCHELDER, Circuit Judge. S.L., a minor, by and through his guardian
K.L., and K.L. individually (“Appellants”), appeal the district court’s summary judgment orders
for Defendants-Appellees Edward (“Shawn”) Bartley and Thomas DelGrande. We AFFIRM.

                                                 I.

       On December 4, 2006, Pierce Township Police Officer David Homer responded to a call
made by S.L.’s mother. Homer “smelled smoke” upon entering S.L.’s house and S.L.’s mother
reiterated that her teenage son had been setting fires in the house after an argument between the
two had escalated. She said that she had found smoldering Popsicle sticks in her son’s bedroom,
which she thought may have been her son’s attempt to cast a “black magic” spell. Homer then
entered S.L.’s bedroom. Although the Popsicle sticks were not visible, S.L. allegedly admitted
that he had “set some popsicle sticks on fire and they went out after I left the room.” When
asked by Homer whether he was afraid that the house might catch fire, S.L. responded, “I really
don’t care. I don’t want to be here.” Homer then arrested S.L. for aggravated arson and
transported him to the Clermont County Juvenile Detention Center (“Detention Center”).
Thomas G. DelGrande was the superintendent of the Detention Center.

       Upon arriving at the Detention Center, Homer prepared a complaint charging S.L. as a
delinquent child based on the felony charge of aggravated arson, and turned over custody of S.L.
to Detention Center “Youth Leader” Shawn Bartley. Clermont County Juvenile Court Judge
Stephanie A. Wyler had appointed Bartley as “Youth Leader” and deputy clerk.                   The
appointment as clerk authorized Bartley to sign a complaint, and Bartley did sign the complaint
prepared by Homer, attesting that Homer had taken an oath in his presence as required by Ohio
Rule of Juvenile Procedure 10(B)(3). Bartley, however, never administered the oath to Homer.

       S.L. appeared before Judge Wyler fewer than twelve hours later. At this hearing, Judge
Wyler appointed a guardian ad litem, set a date for the pre-trial hearing, and ordered the
No. 13-3892             S.L., et al. v Pierce Twp. Bd. of Trustees, et al.               Page 3

continued detention of S.L. pending a psychological evaluation. S.L. was released on December
11, 2006, and his aggravated arson charge was later dismissed.

       The Appellants sued Homer, Bartley, DelGrande, Chief of Police James T. Smith, and
Pierce Township Board of Trustees in the United States District Court for the Southern District
of Ohio. The claims against Homer included a 42 U.S.C. § 1983 action premised on a violation
of S.L.’s Fourth Amendment rights, and state-law claims for false arrest, false imprisonment,
malicious prosecution, and loss of filial consortium.         The district court characterized the
“ultimate issue for . . . these claims” as “[w]hether Homer had probable cause to arrest S.L. for
aggravated arson.”    The district court denied the Appellants’ motion for partial summary
judgment against Homer, holding that a genuine dispute of material fact existed on whether S.L.
told Homer that he set the Popsicle sticks on fire, and thus whether there was probable cause to
arrest S.L.

       The Appellants also filed a motion for partial summary judgment against Bartley,
alleging that Bartley, under § 1983, violated S.L.’s Fourth Amendment rights and falsely arrested
and imprisoned him. After noting that the Appellants’ § 1983 claim depended on whether
Bartley “had a duty to make an independent assessment of probable cause for S.L.’s arrest and
detention,” the court denied the Appellants’ motion, finding “[a]fter an exhaustive search, . . . no
duty for a detention clerk to make an independent assessment of probable cause before an
arrestee may be detained.” The court also denied the Appellants’ motion on their false arrest
claim because a genuine dispute of material fact existed as to whether Bartley had the legal
authority to administer oaths and whether, if he did not, the absence of legal authority made
S.L.’s detention unlawful.

       Pierce Township Board of Trustees, Smith, and Homer (“Township Defendants”) filed
their own joint motion for summary judgment on five claims: the § 1983 action premised on a
violation of S.L.’s Fourth Amendment rights, the false-arrest and malicious prosecution claims
against Homer, the negligent-supervision claim against Smith, and the loss of filial consortium
claim against both Smith and Homer. On the § 1983 claim against the Township Defendants, the
district court “when viewing the evidence and drawing all reasonable inferences in favor of the
nonmoving party” was “forced to conclude that Judge Wyler did not make a probable-cause
No. 13-3892                S.L., et al. v Pierce Twp. Bd. of Trustees, et al.                      Page 4

determination,” which would have precluded relitigation of the probable-cause issue. The court
then denied summary judgment for the Township Defendants on the Appellants’ § 1983 claim,
holding that given the fact-intensive nature of the probable-cause inquiry, a genuine dispute of
material fact existed on whether Homer had probable cause to arrest S.L. for aggravated arson.
The court did grant the Township Defendants’ motion on the Appellants’ § 1983 official-
capacity claim against Smith, holding that insufficient evidence existed that police department
training was inadequate or that Smith knew of prior unconstitutional actions and failed to
respond. Next, the court denied the Township Defendants’ motion for summary judgment on the
Appellants’ § 1983 individual-capacity claim against Homer, primarily because “summary
judgment based on a qualified immunity defense is inappropriate in a § 1983 action” where a
genuine dispute of material fact exists “on which the question of immunity turns.” The factual
dispute identified by the court was whether Homer had probable cause to arrest S.L.1

        Finally, on the Appellants’ state-law claims, the district court granted Pierce Township’s
motion for summary judgment, holding that Pierce Township is immune from suit under Ohio
Rev. Code Ann. § 2744.02. Finding that the Appellants “have failed to brief this issue,” the
district court granted summary judgment to the Township Defendants on Smith’s immunity
claim, resulting in summary judgment on the Appellants’ negligent-supervision claim as well.
The district court denied summary judgment on Homer’s claim for immunity, however, because
“Ohio courts have found that summary judgment on immunity grounds is improper where there
is a genuine issue of fact as to whether an officer had probable cause to effectuate an arrest.”
And, for the same reason, the court denied the Township Defendants’ summary judgment motion
on the Appellants’ false-arrest claim against Homer. The Township Defendants’ motion on the
Appellants’ malicious prosecution claim against Homer similarly was denied because “the
existence of probable cause is subject to a genuine dispute,” “malice is tied so closely to
probable cause,” and “[n]either party points to sufficient evidence . . . to allow this Court to
determine definitively the eventual disposition of S.L.’s juvenile-court case.” The court also



        1
           The court granted summary judgment to the Township Defendants on the Appellants’ § 1983 due process
claims, finding that the Appellants “have abandoned any due-process claims.” And, for the same reason, the court
granted summary judgment to the Township Defendants on the Appellants’ § 1983 official policy, practice, and
custom claims against Pierce Township.
No. 13-3892            S.L., et al. v Pierce Twp. Bd. of Trustees, et al.              Page 5

awarded summary judgment to the Township Defendants on K.L.’s loss of filial consortium
claim because S.L. did not suffer a “physical injury” as required by Ohio law.

       On the issue of damages, the court denied the Township Defendants’ summary judgment
motion pertaining to compensatory damages, concluding that S.L.’s deposition testimony
identified sufficient evidence of damages. With respect to punitive damages, the court held that
Pierce Township was itself immune from punitive damages under both § 1983 and Ohio law.
But “[b]ecause a genuine dispute exists as to whether Officer Homer acted with malice,” the
district court denied the Township Defendants’ motion as to punitive damages against Homer.
Finally, the court held that the Township Defendants’ motion for summary judgment on
attorney’s fees and costs was “premature.”

       Bartley filed his own motion for summary judgment on the Appellants’ § 1983, false
arrest, and loss of filial consortium claims. The court granted the motion on all claims, holding
that “Bartley was performing a quasi-judicial function by accepting the complaint against S.L.
and by preparing a risk assessment,” and thus he was entitled to absolute, quasi-judicial
immunity.

       DelGrande also filed a motion for summary judgment on the Appellants’ official-capacity
§ 1983 claim, state-law negligent supervision claim, and loss of filial consortium claim. On the
official-capacity § 1983 claim for violation of S.L.’s Fourth Amendment rights, the district court
held that DelGrande had final policymaking authority over the detention center, that DelGrande
“fail[ed] to address the issue of deliberate indifference,” and that “based on the Detention
Center’s policies in place at the time of S.L.’s detention, prior instances of unconstitutional
conduct demonstrating a history of abuse can be inferred.” The court therefore denied summary
judgment on the Appellants’ official-capacity § 1983 claim against DelGrande.

       DelGrande argued that he was immune from liability under Ohio law on the Appellants’
negligent supervision claim, but the district court disagreed, holding that DelGrande could have
acted recklessly—and thus outside the scope of immunity under Ohio Rev. Code Ann.
§ 2744.03(A)(6)—because “where there is evidence that Defendant DelGrande trained Detention
Center employees regarding the constitutional rights of juveniles, that evidence is incomplete
and subject to doubt—it is subject to genuine dispute.”          The court also agreed with the
No. 13-3892               S.L., et al. v Pierce Twp. Bd. of Trustees, et al.                      Page 6

Appellants that sufficient evidence existed that DelGrande failed to train on “constitutional
detention issues” like probable cause requirements, which “is enough . . . to overcome Defendant
DelGrande’s presumption of statutory immunity.” On the merits of the Appellants’ negligent
supervision claim, the court concluded that DelGrande did not “properly move[] for summary
judgment on this claim,” but even “if he did intend to make such a motion . . . DelGrande’s
motion for summary judgment is DENIED in this respect.”                        Finally, the court granted
DelGrande’s motion for summary judgment on K.L.’s claim for loss of filial consortium,
concluding that S.L. did not allege a “physical injury.”

        DelGrande filed a Rule 59(e) motion to reconsider, arguing that the court clearly erred by
not “first finding that Officer Bartley’s conduct violated S.L.’s constitutional rights.” The court
denied the motion, holding that DelGrande had forfeited this argument and the court had not
clearly erred. DelGrande appealed the district court’s denial of statutory immunity under Ohio
law. We affirmed. See S.L. ex rel. K.L. v. Pierce Twp. Bd. of Trs., 509 F. App’x 536, 539 (6th
Cir. 2013).

        The case was transferred to a new district court judge, and DelGrande filed a second
motion for reconsideration, reiterating that the district court clearly erred by not first finding that
Bartley’s conduct violated some constitutional right.             This time, the district court granted
DelGrande’s motion for summary judgment on the Appellants’ § 1983 claim.2 In addition to
holding that DelGrande could not be liable because Bartley had not violated S.L.’s constitutional
rights, the court sua sponte raised an Eleventh Amendment defense, and also granted
DelGrande’s motion for summary judgment on the Appellants’ state-law negligent supervision
claim, holding that because Bartley was not liable to S.L., DelGrande could not be liable either.

        S.L. and K.L. now appeal the district court’s summary judgment order in favor of Bartley
on their § 1983 claims, and its subsequent summary judgment order in favor of DelGrande on
their § 1983 and state-law claims.




        2
          “District courts have inherent power to reconsider interlocutory orders and reopen any part of a case
before entry of a final judgment.” Mallory v. Eyrich, 922 F.2d 1273, 1282 (6th Cir. 1991).
No. 13-3892             S.L., et al. v Pierce Twp. Bd. of Trustees, et al.               Page 7

                                                  II.

       The district court raised sua sponte an Eleventh Amendment defense with regard to
DelGrande. When the merits offer a more straightforward means of resolving a case and the
defendants raise sovereign immunity only as an alternative defense on appeal, we have held that
it is unnecessary to address a potential Eleventh Amendment defense. Nair v. Oakland Cnty.
Cmty. Mental Health Auth., 443 F.3d 469, 477 (6th Cir. 2006). When a party “declines to raise
sovereign immunity as a threshold defense, we conclude that the federal courts have discretion to
address the sovereign-immunity defense and the merits in whichever order they prefer.” Ibid. In
Nair, we “bypass[ed]” the state’s Eleventh Amendment defense, instead dismissing the case on
the merits of the plaintiff’s constitutional and statutory claims. Ibid.

       We do the same here. DelGrande first raised sovereign immunity as an alternative
defense in this appeal; he did not raise it as a threshold defense on a motion to dismiss. And
ruling that DelGrande is entitled to Eleventh Amendment immunity would not resolve all claims,
but addressing the underlying absence of a constitutional violation would. We therefore decline
to address Eleventh Amendment immunity, instead resolving the case on the merits.

                                                 III.

       We review de novo a district court’s summary judgment order. Johnson v. Karnes,
398 F.3d 868, 873 (6th Cir. 2005). Summary judgment should be granted “if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). To survive a motion for summary judgment, “[a] § 1983
claim must satisfy two elements: 1) the deprivation of a right secured by the Constitution or laws
of the United States and 2) the deprivation was caused by a person acting under color of state
law.” Ellison v. Garbarino, 48 F.3d 192, 194 (6th Cir. 1995) (internal quotation marks omitted).

                                                  A.

       The Appellants assert that by taking custody of S.L., Bartley was effectively arresting and
detaining him, without probable cause and without a warrant, in violation of S.L.’s Fourth
Amendment rights. And, they argue, because the Fourth Amendment applies to all state actors,
No. 13-3892             S.L., et al. v Pierce Twp. Bd. of Trustees, et al.                  Page 8

Bartley’s “seizure” of S.L. without a warrant and without probable cause gives rise to a cause of
action under § 1983.

       The Appellants cannot show the deprivation of a constitutional right. It was Homer—not
Bartley—who arrested (or seized) S.L. They point to no authority to support the proposition that
an alleged constitutional violation by an arresting officer imputes § 1983 liability to each
successive officer who takes custody of the arrestee, or that each successive officer
independently “seizes” the arrestee within the meaning of the Fourth Amendment. Counsel
conceded at oral argument that to his knowledge, no court has ever held that an intake officer
such as Bartley who takes custody of an arrestee and facilitates the administrative steps incident
to a warrantless arrest violates the Constitution if the arresting officer originally lacked probable
cause. In fact, caselaw suggests the contrary.

       In Gerstein v. Pugh, 420 U.S. 103, 125 (1975), the Supreme Court held that the Fourth
Amendment requires a “prompt[]” determination of probable cause after a warrantless arrest and
detention. The Court recognized that “a policeman’s on-the-scene assessment of probable cause
provides legal justification for arresting a person suspected of crime, and for a brief period of
detention to take the administrative steps incident to arrest.” Id. at 113–14. And in County of
Riverside v. McLaughlin, 500 U.S. 44, 53 (1991), the Court reiterated that it had “stopped short
of holding that jurisdictions were constitutionally compelled to provide a probable cause hearing
immediately upon taking a suspect into custody.” It then concluded “that a jurisdiction that
provides judicial determinations of probable cause within 48 hours of arrest will, as a general
matter, comply with the promptness requirement of Gerstein.”                 Id. at 56.   Gerstein and
McLaughlin establish that an officer’s pre-arrest probable cause determination is sufficient legal
authority for the detention of an arrestee pending a judicial probable cause determination. That
determination must take place “promptly,” generally within forty-eight hours.

       In denying the Appellants’ motion for summary judgment, the district court characterized
the issue as whether Bartley “had a duty to make an independent assessment of probable cause
for S.L.’s arrest and detention.” The Appellants insist that because they argue only that probable
cause did not exist and thus Bartley violated the Fourth Amendment, Bartley and the district
No. 13-3892                 S.L., et al. v Pierce Twp. Bd. of Trustees, et al.                         Page 9

court “mischaracterize[] the basis of the claims.” Reply Br. 2.3 But how could Bartley ensure
that S.L.’s arrest was supported by probable cause unless he undertook the independent
determination of probable cause that Gerstein and McLaughlin held was not required? Such a
rule would mean that every police officer, corrections officer, and courtroom deputy who takes
custody—however briefly—of an arrestee such as S.L. must make this independent assessment
or risk § 1983 liability.4 After an initial warrantless seizure, the Fourth Amendment requires
only a “prompt[]” judicial probable cause determination. Because Bartley did not violate S.L.’s
constitutional rights, the district court did not err by granting summary judgment to Bartley on
the Appellants’ § 1983 claim.

                                                        B.

        The Appellants also seek to impose § 1983 liability on DelGrande “based on municipal or
supervisory liability” in his official capacity as the supervisor of the Detention Center. The
Appellants premise liability on inadequate training.

        “[A]n official-capacity suit is, in all respects other than name, to be treated as a suit
against the entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985). We said in Barber v. City of
Salem, 953 F.2d 232, 235–36 (6th Cir. 1992), that “a municipality may [] be liable under
42 U.S.C. § 1983 in certain circumstances for constitutional violations arising from its failure to
properly train its employees.”

        In order for a plaintiff to prevail against a municipality, the plaintiff must show
        that inadequate training represented a city policy and that the need for better
        training was so obvious and the inadequacy so likely to result in a violation of
        constitutional rights, that the municipality can be said to have been deliberately
        indifferent to the need.

Id. at 236. The “policy” prong “requires a showing that the unconstitutional policy or custom
existed, that the policy or custom was connected to the county, and that the policy or custom
caused his constitutional violation.” Napier v. Madison Cnty., 238 F.3d 739, 743 (6th Cir. 2001).


        3
           Neither Bartley nor the district court, moreover, mischaracterizes the Appellants’ claims. The Appellants
argue repeatedly that the Fourth Amendment “require[s] some independent assessment and determination that the
arrest and detention is legally justified.”
        4
          And if Bartley were required to make this independent assessment of probable cause, he probably would
be exercising judicial authority and would be entitled to claim quasi-judicial immunity.
No. 13-3892             S.L., et al. v Pierce Twp. Bd. of Trustees, et al.              Page 10

In Weeks v. Portage County Executive Offices, 235 F.3d 275, 279 (6th Cir. 2000), we explained
that an attempt to impose municipal liability under § 1983 requires an underlying violation of the
§ 1983 claimant’s constitutional rights. See also Wilson v. Morgan, 477 F.3d 326, 340 (6th Cir.
2007) (“There can be no Monell municipal liability under § 1983 unless there is an underlying
unconstitutional act.”); Napier, 238 F.3d at 743 (“Because the analysis concludes that Napier
cannot show that he suffered an underlying constitutional violation, his claims against Madison
County must also fail.”). We concluded in Section III.A, however, that Bartley did not violate
S.L.’s constitutional rights. Because no underlying constitutional violation occurred, the district
court did not err by granting summary judgment to DelGrande on the Appellants’ § 1983
municipal liability claim.

       To the extent the Appellants raise a separate supervisory liability claim under § 1983 for
a policy of inadequately training subordinates, O’Banion v. Bowman, 824 F. Supp. 743, 745
(S.D. Ohio 1993), their claim must fail. “[A] prerequisite of supervisory liability under § 1983 is
unconstitutional conduct by a subordinate of the supervisor.” McQueen v. Beecher Cmty. Sch.,
433 F.3d 460, 470 (6th Cir. 2006). But because Bartley did not violate S.L.’s constitutional
rights, supervisory liability does not attach to DelGrande under § 1983.

                                                 IV.

       The Appellants also bring a state-law negligent supervision claim against DelGrande.
The district court held that “[u]nder Ohio law, where no cause of action may be maintained
against the individual employee, a claim against the employer for negligent supervision and
negligent training necessarily fails as a matter of law.”

       In Strock v. Pressnell, 527 N.E.2d 1235 (Ohio 1988), the Ohio Supreme Court held that a
negligent supervision claim against a church failed because

       an underlying requirement in actions for negligent supervision and negligent
       training is that the employee is individually liable for a tort or guilty of a claimed
       wrong against a third person, who then seeks recovery against the employer.
       Because no action can be maintained against [the minister] in the instant case, it is
       obvious that any imputed actions against the church are also untenable.
No. 13-3892                 S.L., et al. v Pierce Twp. Bd. of Trustees, et al.                       Page 11

Id. at 1244. Bartley is neither “liable for a tort” nor “guilty of a claimed wrong” because he did
not violate S.L.’s constitutional rights.5 Bartley’s liability is premised solely on the Appellants’
unsuccessful § 1983 claim. Accordingly, the district court did not err by granting summary
judgment for DelGrande on the Appellants’ state-law negligent supervision claim.

                                                        V.

        For the foregoing reasons, we AFFIRM the judgment of the district court.




        5
           The Appellants contend that Strock provides a disjunctive test, and thus an employee need not be “liable”
provided the employee is “guilty of a claimed wrong.” This argument arises because the district court ordered
summary judgment for Bartley on the basis of quasi-judicial immunity and did not reach the merits of the § 1983
claim. Because we resolve the claim against Bartley on the merits, we need not comment on whether the Strock test
is disjunctive. Bartley is neither “liable” nor “guilty.”
