Summers v. Leis

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.

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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.

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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

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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).

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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

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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

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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

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_________________ “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.

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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).