Terry Summers v. SIMON LEIS, Sheriff

*The Honorable Joseph M. Hood, United States District Judge for the
Eastern District of Kentucky, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0148P (6th Cir.)
File Name: 04a0148p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
TERRY SUMMERS,
Plaintiff-Appellee,
v.
SIMON LEIS, Sheriff,
Defendant-Appellant.
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No. 03-3347
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 02-00686—Susan J. Dlott, District Judge.
Submitted: October 30, 2003
Decided and Filed: May 21, 2004
Before: BATCHELDER and COLE, Circuit Judges;
HOOD, District Judge.*
_________________
COUNSEL
ON BRIEF: David Todd Stevenson, Joseph M. Hutson,
HAMILTON COUNTY PROSECUTING OFFICE,
2 Summers v. Leis No. 03-3347
Cincinnati, Ohio, for Appellant. Kenneth L. Lawson,
LAWSON & ASSOCIATES, Cincinnati, Ohio, for Appellee.
HOOD, D. J., delivered the opinion of the court, in which
COLE, J., joined. BATCHELDER, J. (pp. 15-18), delivered
a separate concurring opinion.
_________________
OPINION
_________________
HOOD, District Judge. Terry Summers (“Summers”)
brought this 42 U.S.C. § 1983 action against Hamilton
County Sheriff Simon Leis (“Leis”), certain unnamed
deputies employed by him, and Hamilton County, Ohio,
alleging, in part, violations of the First, Fourth, and
Fourteenth Amendments to the United States Constitution.
Leis appeals the district court’s orders denying his motion for
summary judgment on the grounds of qualified immunity and
Younger abstention “without prejudice to resubmission,” and
entering a scheduling order requiring full discovery. For the
reasons set forth below, we REVERSE the judgment of the
district court and REMAND for further proceedings
consistent with this opinion.
I. FACTUAL AND PROCEDURAL HISTORY
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
September 18, 2002, and September 23, 2002, he was
engaging in such protests on the public sidewalk in front of
the Hamilton County Courthouse. During both protests,
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
§ 2917.11 and carrying concealed weapons in violation of

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

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No. 03-3347 Summers v. Leis 5
561, 563 (6th Cir. 1997). To prevail, the non-movant must
show sufficient evidence to create a genuine issue of material
fact. Klepper v. First Am. Bank, 916 F.2d 337, 341-42 (6th
Cir. 1990) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). A mere scintilla of
evidence is insufficient; “there must be evidence on which the
jury could reasonably find for the [non-movant].” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986).
Additionally, this Court conducts de novo review of the
district court’s denial of a defendant’s motion for summary
judgment on the basis of qualified immunity because, as we
have noted, "the issue whether qualified immunity is
applicable to an official’s actions is a question of law."
Chappel v. Montgomery Country Fire Protection Dist. No. 1,
131 F.3d 564, 573 (6th Cir. 1997) (citing Dickerson v.
McClellan, 101 F.3d 1151, 1157 (6th Cir. 1996)). “Because
the issue of qualified immunity is a legal question, no
deference is due the district court’s conclusion.” O’Brien v.
City of Grand Rapids, 23 F.3d 990, 998 (6th Cir. 1994).
III. DISCUSSION
A. Qualified Immunity
In this case, Leis filed a motion for summary judgment
based, in part, on the defense of qualified immunity. The
district court’s February 18, 2002, order declined to assess the
merits of Leis’s motion for summary judgment, denying the
motion “without prejudice to resubmission.” This ruling was
effectively a denial of qualified immunity. The district
court’s decision was based on an apparent belief that any
decision regarding qualified immunity was premature and
should await the close of discovery.
Summers argues that because the district court did not rule
on the merits of the asserted qualified immunity defense, this
court presently lacks jurisdiction to review the district court’s
6 Summers v. Leis No. 03-3347
refusal to grant relief. He also argues that because the motion
can be renewed at the close of discovery, Leis retains the
possibility that the qualified immunity defense will shield him
from trial. Leis, on the other hand, argues that the district
court’s denial of the motion as premature operates as a final
decision on qualified immunity because it deprives him of a
key benefit of the doctrine’s protection - immunity from suit,
not just from liability. Further, Leis contends that in order to
adequately oppose the motion for summary judgment based
on a need for further discovery, Summers should have filed an
explanatory Fed. R. Civ. P. 56(f) affidavit.
1. Jurisdiction
Jurisdiction in this matter arises under 28 U.S.C. § 1291,
granting jurisdiction to hear appeals from final judgments of
district courts. Generally, a denial of summary judgment is
not a final judgment for purposes of appeal. Hoover v.
Radabaugh, 307 F.3d 460, 465 (6th Cir. 2002); Johnson v.
Jones, 515 U.S. 404 (1995). Courts, however, have
recognized that, under certain circumstances, denials of
qualified immunity on summary judgment by a district court
may be appealed as a collateral order.
An interlocutory decision appealable as a final order must
satisfy two criteria: (1) “[I]t must conclusively determine the
disputed question,” and (2) that question must involve a claim
“of right separable from, and collateral to, rights asserted in
the action.” Mitchell v. Forsyth, 482 U.S. 511, 527 (1985)
(internal citations omitted). There is no doubt that a decision
on qualified immunity involves a claim of right that is
separate from, and collateral to, rights asserted in the action.
Id. The key issue thus becomes whether the district court’s
refusal to address the merits of the Leis’s motion conclusively
determined the issue in this case.
The purpose of a qualified immunity defense is not only
protection from civil damages but protection from the rigors
of litigation itself, including the potential disruptiveness of

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No. 03-3347 Summers v. Leis 7
discovery. See Pierson v. Ray, 386 U.S. 547 (1967); Harlow
v. Fitzgerald, 457 U.S. 800, 816 (1982); Mitchell v. Forsyth,
472 U.S. 511, 526 (1985). In fact, the Court in Anderson v.
Creighton emphasized that “[o]ne of the purposes of the
Harlow qualified immunity standard is to protect public
officials from the ‘broad-ranging discovery’ that can be
‘particularly disruptive of effective government.’” Anderson
v. Creighton, 483 U.S. 635, 646 (1987) (quoting Harlow, 457
U.S. at 817). So, here, even though the defendant-appellant
is free to renew his motion later, “[he] would in the meantime
be forced to go through a large part of the litigation process
that the qualified immunity doctrine seeks to avoid.” Wallin
v. Norman, 317 F.3d 558, 563 (6th Cir. 2003).
This Court has held on multiple prior occasions that, when
faced with a motion based on qualified immunity, a district
court can not avoid ruling on the issue. See e.g., Skousen v.
Brighton High School, 305 F.3d 520 (6th Cir. 2002). In the
case of Skousen v. Brighton High School, we concluded that
a district court committed legal error in dismissing a motion
for summary judgement based on qualified immunity solely
because discovery was not complete. See Skousen, 305 F.3d
520 (6th Cir. 2002). We held that, because the defense of
qualified immunity is a threshold question, if the defense is
properly raised prior to discovery, the district court has a duty
to address it. Id.
Rather than dismiss the [summary judgment] motion
because discovery was not complete, the district court
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.
Id. at 527. Only after the court inquires into whether any
facts material to Plaintiff’s claims are genuinely at issue, and
only upon a finding that material facts are in fact in dispute is
a court at liberty to hold a motion for summary judgment in
8 Summers v. Leis No. 03-3347
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
essential to justify the parties oppo sition. In that situation, the district
court may permit further discovery so that the nonmoving party can
adequately oppose the motion for summary judgment. But it is up to the
party opp osing the motion to state why more discovery is needed.”
Wallin v. Norman, 317 F.3d 55 8, 564 (6th Cir. 2003).
abeyance pending additional discovery. Id. Because the
order denying summary judgment was premised on the legal
question of qualified immunity rather than the existence of a
genuine issue of material fact, the Court retained jurisdiction
and found that an interlocutory appeal was proper. See
Skousen, 305 F.3d at 520.
As mentioned above, the district court’s denial of Leis’s
summary judgment motion was based on an apparent belief
that any decision regarding qualified immunity was premature
and should await the close of discovery. When a motion for
summary judgment is filed, the party opposing the motion
may, by affidavit, explain why he is unable to present facts
essential to justify the party’s opposition to the motion. Fed.
R. Civ. P. 56(f). The burden is on the party seeking
additional discovery to demonstrate why such discovery is
necessary. See Wallin, 317 F.3d 558. In this instance, in
order to adequately oppose Leis’s motion for summary
judgment, Summers should have filed a Fed. R. Civ. P. 56(f)
affidavit explaining his need for additional discovery.5
Summers argues that he did in fact submit the affidavit of
his counsel which ostensibly states why further discovery is
needed. That affidavit, however, merely recites the same
conclusory allegation[s] contained in the complaint: ‘Counsel
believes evidence will demonstrate the Plaintiff was arrested
for no other reason than dragging the American Flag.’
(Lawson Aff. ¶ 3). This does not meet the requirements of
Fed. R. Civ. P. 56(f).

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No. 03-3347 Summers v. Leis 9
Bare allegations or vague assertions of the need for
discovery are not enough. United States v. Cantrell, 92 F.
Supp.2d 704, 717 (S.D. Ohio 2000) (citing Lewis v. ABC
Business Serv., Inc., 135 F.3d 389, 409 (6th Cir. 1998)). In
order to fulfill the requirements of Fed. R. Civ. P. 56(f),
Summers must state with “some precision the materials he
hopes to obtain with further discovery, and exactly how he
expects those materials would help him in opposing summary
judgment.” Simmons Oil Corp. v. Tesoro Petroleum Corp.,
86 F.3d 1138, 1144 (Fed. Cir. 1996). The affidavit on which
Summers relies does neither.
In the absence of a sufficient affidavit, there is no
justification for the district court’s determination that a
motion for summary judgment would be premature until the
close of discovery. Therefore, the district court erred in not
ruling on Leis’s motion for summary judgment.
This Court finds that the district court’s refusal to address
the merits of the defendant’s motion asserting qualified
immunity constitutes a conclusive determination for the
purposes of allowing an interlocutory appeal.
2. Merits
Having determined that the district court’s refusal to
address the merits of the defendant’s motion asserting
qualified immunity constitutes a conclusive determination for
the purposes of allowing an interlocutory appeal, we can
consider the order as final. Thus, we now turn to the merits
of whether Leis is entitled to qualified immunity.
In an action brought pursuant to 42 U.S.C. § 1983, the
plaintiff must prove that (1) the challenged conduct was
committed by a person acting under the color of state law, and
(2) the conduct caused a deprivation of a person’s rights or
privileges protected by the laws or Constitution of the United
States. Parratt v. Taylor, 451 U.S. 527, 535 (1981), Baker v.
McCollan, 443 U.S. 137, 142 (1979). In Saucier v. Katz, the
10 Summers v. Leis No. 03-3347
United States Supreme Court held that a district court
considering a claim of qualified immunity must first
determine whether the individual claiming the immunity
committed a constitutional violation. Saucier v. Katz, 533
U.S. 194 (2001). The Court considered this a threshold
question for, “if no constitutional right would have been
violated [by the officer’s conduct] were the allegations
established, there is no necessity for further inquiries
concerning qualified immunity.” Id. at 201.
The first question for the Court is whether Leis, acting
under the color of state law, committed a constitutional
violation. A claimed constitutional violation must be based
upon active unconstitutional behavior. Greene v. Barber, 310
F.3d 889, 899 (6th Cir. 2002). The acts of one’s subordinates
are not enough, nor can supervisory liability be based upon
the mere failure to act. Id. Summers has failed to
demonstrate that Leis engaged in any active unconstitutional
behavior. In fact, Summers’s complaint attributes no specific
acts to Leis at all. Summers’s claim against the Sheriff is
based solely on the actions of his unnamed deputies.
Furthermore, Summers’s complaint alleges no specific,
unconstitutional policy, custom or practice on the part of
Sheriff Leis, nor does it allege that Leis acted in any capacity
other than employer of the deputies that arrested Summers.
In failing to assert, much less identify, any constitutional
wrong committed by Leis, Summers has failed to set forth
anything establishing a claim under 42 U.S.C. § 1983. Thus,
the Court finds that Leis is entitled to qualified immunity.
The district court erred in denying Leis’s motion for summary
judgment on this issue.
B. Municipal Liability and Younger abstention
The final two issues, whether the district court erred in
failing to dismiss the claims against Hamilton County, Ohio,
and whether the district court erred in failing to dismiss the
action pursuant to Younger v. Harris, will be treated together

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No. 03-3347 Summers v. Leis 11
for it is in these contexts that another jurisdictional issue, an
issue not broached by either party, arises.
As noted above, the dismissal of Leis’s motion for
summary judgment is appealable as a final judgment to the
extent that it involves issues of qualified immunity. The
reasoning behind such a finding, however, does not carry over
to the questions of whether the district court erred in failing
to dismiss the claims against Hamilton County or in failing to
dismiss the entire action pursuant to Younger v. Harris. We
conclude that this Court does not have jurisdiction to address
either of these issues.
1. Municipal Liability
In Swint v. Chambers County Commission, a unanimous
Supreme Court held that the denial of summary judgment
based on municipal liability is not immediately appealable.
Swint v. Chambers County Commission, 514 U.S. 35, 43
(1995). The Swint Court supported their holding by pointing
out that the rationale supporting immediate review of some
qualified immunity decisions does not extend to a
municipality’s defenses to § 1983 claims. As discussed in
more detail above, in qualified immunity cases, “the
entitlement is an immunity from suit rather than a mere
defense to liability; and like an absolute immunity, it is
effectively lost if a case is erroneously permitted to go to
trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The
Swint Court ruled that, unlike the qualified immunity
entitlement, municipal defenses under § 1983 are not a right
to immunity from trial but a “mere defense to liability.”
Swint, 514 U.S. at 43. As such, the collateral order doctrine
does not apply and a municipality’s defenses to suit may only
be reviewed after a final judgment on the merits.
This Circuit has also determined that the denial of summary
judgment based on municipal liability is not immediately
appealable. See Crockett v. Cumberland College, 316 F.3d
571, 578 (6th Cir. 2003). In Crockett we stated that “...even
12 Summers v. Leis No. 03-3347
if the City [appellant] had raised the issue of municipal
liability at the district court level and the district court had
rejected that argument, this Court would not have jurisdiction
over such an appeal under the collateral order doctrine.”
Crockett, 316 F.3d at 578. We explained that, in such cases,
the third prong of the collateral order doctrine can not be
satisfied because an appellate court can effectively review the
question of municipal liability after the district court renders
a final judgment. Id.
As this Court is without jurisdiction to consider the merits
of Hamilton County’s municipal liability defense, we decline
to entertain this portion of the appeal.
2. Younger Abstention
Abstention is treated in much the same manner as the
municipal liability issue discussed above. The outcome is
identical; this Court does not have jurisdiction to review the
issue of whether the district court erred in failing to dismiss
the action when criminal charges involving the same conduct
and parties were pending in state court. The district court’s
failure to dismiss the entire action pursuant to Younger does
not qualify as a final decision under 28 U.S.C. § 1291, nor
does it fit within the collateral order exception to that statute.
Additionally, the district court’s decision does not qualify as
an interlocutory order as defined in 28 U.S.C. § 1292.
Further, Younger abstention does not require us to decline to
address the qualified immunity question, as the concurrence
suggests. As we discussed above, Summers has failed even
to allege any acts by Sheriff Leis at all. Section 1983
supervisory liability cannot be predicated on the mere failure
to act. Greene, 310 F.3d at 899. Quite simply, resolution of
the constitutionality of Leis’s conduct does not require us to
address the constitutionality of the arresting deputy’s conduct.
Whether or not the deputies violated Summers’s
constitutional rights, Leis is entitled to dismissal of the case
against him.

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No. 03-3347 Summers v. Leis 13
We therefore focus on whether exercise of our pendent
appellate jurisdiction is appropriate. Pendent appellate
jurisdiction refers to the exercise of jurisdiction over issues
that ordinarily may not be reviewed on interlocutory appeal,
but, may be reviewed on interlocutory appeal if those issues
are “inextricably intertwined” with matters over which the
appellate court properly and independently has jurisdiction.
Chambers v. Ohio Dep’t of Human Servs., 145 F.3d 793, 797
(6th Cir. 1998). This circuit has interpreted "inextricably
intertwined" to mean that the resolution of the appealable
issue "necessarily and unavoidably" decides the non-
appealable issue. Vakilian v. Shaw, 335 F.3d 509, 521 (6th
Cir. 2003) (citing Brennan v. Township of Northville, 78 F.3d
1152, 1157 (6th Cir. 1996)).
A district court’s determinations of whether it must abstain
under Younger and whether to grant qualified immunity
require the application of separate and distinct legal standards.
It is not necessary to decide whether the district court should
have abstained under Younger in order to review whether it
applied the appropriate legal standard and analysis in denying
qualified immunity to Sheriff Leis. Moreover, our review of
whether the district court improperly denied Leis qualified
immunity does not “necessarily and unavoidably” resolve the
Younger abstention issue.
Pendent appellate jurisdiction may also be appropriate if
review of the issue of which the Court does not properly have
jurisdiction is “necessary to ensure meaningful review” of the
issue of which the Court does. Archie v. Lanier, 95 F. 3d 438,
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
14 Summers v. Leis No. 03-3347
decision is not “necessary to ensure meaningful review of”
the denial of qualified immunity.
The district court’s failure to dismiss the action on the basis
of Younger abstention, therefore, is not "inextricably
intertwined" with or “necessary to ensure meaningful review
of” the qualified immunity appeal of Leis. Consequently, this
Court lacks pendent appellate jurisdiction over that argument.
As we are without jurisdiction, we decline to review the
district court’s failure to dismiss pursuant to Younger v.
Harris.
Since the principles of Younger do not require us to abstain
from considering Leis’s qualified immunity, we do not
believe it would be proper to use the asserted qualified
immunity defense of one defendant as a gateway to review
the otherwise currently unappealable Younger assertions of all
the defendants. We are confident that the district court is
capable of addressing the issue in the first instance on
remand.
IV. CONCLUSION
For all the reasons set forth above, we REVERSE the
district court’s denial of summary judgment in part finding
that Leis is entitled to qualified immunity. Additionally, we
DISMISS the remainder of the appeal dealing with issues of
municipal liability and abstention for lack of appellate
jurisdiction. Finally, we REMAND this action to the district
court for further proceedings consistent with this opinion.

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No. 03-3347 Summers v. Leis 15
_________________
CONCURRENCE
_________________
ALICE M. BATCHELDER, Circuit Judge, concurring. I
concur in judgment only. Although I generally agree with the
majority’s reasoning, I believe that the federal courts should
have abstained from hearing the present matter and therefore
should not have reached the merits of Summers’ claims.
Summers asked this Court not only to enjoin future arrests,
but also to declare that the defendants’ actions are
unconstitutional. Although Summers claimed that he did not
seek to enjoin the state prosecutions, he in essence sought a
predetermination from the federal courts that his pending
motion in the state proceeding ought to be granted. Such a
holding necessarily impacts the state prosecution.
The Supreme Court has held that absent extraordinary
circumstances, federal equity jurisdiction may not be used to
enjoin pending state prosecutions. See Younger v. Harris,
401 U.S. 37 (1971). The Younger abstention doctrine is
based on the principle that the states have a special interest in
enforcing their own laws in their own courts. Id. at 44. The
rule is “designed to permit state courts to try state cases free
from interference by federal courts, particularly where the
party to the federal case may fully litigate his claim before the
state court.” Zalman v. Armstrong, 802 F.2d 199, 205 (6th
Cir. 1986) (internal quotations omitted). Thus, in applying
Younger abstention, the court must consider whether (1) a
state proceeding is pending at the time the federal action is
initiated; (2) an adequate opportunity is provided to raise the
constitutional claims in state court; and (3) there are
extraordinary circumstances that nevertheless warrant federal
intervention. Respect for the state process precludes a
presumption that state courts will not safeguard federal
constitutional rights. Middlesex County Ethics Comm. v.
Garden State Bar Assoc., 457 U.S. 423, 431 (1982).
16 Summers v. Leis No. 03-3347
“Extraordinary circumstances” must “render the state court
incapable of fairly and fully adjudicating the federal issues
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.
The majority has reasoned that the district court’s failure to
dismiss the action pursuant to Younger does not qualify as a
final decision and that deciding the issue of abstention is
unnecessary in order to review the issue of qualified
immunity. Even in determining whether Sheriff Leis is
entitled to qualified immunity, however, this Court must
necessarily pass on Leis’ conduct - or lack thereof - in the
context of the two arrests. This would determine issues
which, at the time the federal action was initiated, were
present in the criminal proceedings before the Hamilton
County Municipal Court. We specifically cautioned against
such action in Zalman v. Armstrong. “[T]he principles
underlying Younger require that the initial frame of reference
for abstention purposes be determined at the time that the
federal complaint is filed, or at the very latest, at the time a
hearing is held on the merits . . . . Any other rule would []
permit a district court to directly interfere in an ongoing state
proceeding and yet preclude a review of the propriety of that
interference by an appellate court.” Zalman, 802 F.2d at 203
(emphasis added).
The Supreme Court has specifically held that when a state
prisoner seeks damages in a § 1983 suit, the district court
must consider whether a judgment in favor of the plaintiff
would necessarily imply the invalidity of his conviction or
sentence. Heck v. Humphrey, 512 U.S. 477, 487 (1994). If it
would, the complaint must be dismissed unless the plaintiff
can demonstrate that the conviction or sentence has already
been invalidated. Id. “For example, if a state criminal
defendant brings a federal civil-rights lawsuit during the
pendency of his criminal trial, appeal, or state habeas action,
abstention [is] an appropriate response to the parallel state-
court proceedings.” Id. at 487 n.8.

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No. 03-3347 Summers v. Leis 17
We have directly addressed this issue in the exact context
presented here, where a § 1983 action, if successful, would
imply the invalidity of a future conviction on a pending
criminal charge. In Shamaeizadeh v. Cunigan, 182 F.3d 391
(1999), we found that “the concerns of Heck apply pre-
conviction as well as post-conviction.” Id. at 398. Under the
plain holding of Shamaeizadeh, a plaintiff cannot “bring an
action seeking damages related to the criminal proceeding
brought against him until a disposition in that proceeding
ha[s] been reached.” Id. at 398-99. Indeed, the statute of
limitations does not even begin to run for criminal defendants
seeking to file § 1983 claims until the disposition of any
pending criminal proceedings. Id. at 399.
Appellate review of Younger abstention is therefore
properly before this Court, as the question of abstention
cannot be determined at any other time without permitting the
type of interference against which Younger and its progeny
specifically sought to protect. It would make little sense, I
think, to decline to address the issue of abstention at this
point, hold that qualified immunity applies to Sheriff Leis’
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).
18 Summers v. Leis No. 03-3347
Nothing prevented Summers from presenting his federal
claims in the pending state court proceedings. If he had done
so, and the trial court had denied or otherwise failed to
consider Summers’ constitutional claims, he could exercise
his right to an appeal under Ohio law. “[P]laintiffs will have
an adequate opportunity to raise th[e] issue on appeal, which
is sufficient for Younger purposes.” Nernberg v. City of
Pittsburgh, 50 F. Supp. 2d 437, 440 (1999). Summers also
has access to remedies under Ohio Criminal Rule 12(C),
which permits him to pursue a motion to dismiss by objecting
to the “institution of the prosecution” and defects in the
complaint. This includes Summers’ claim that he was
engaged in constitutionally protected conduct at the time of
his arrests. In short, an adequate opportunity is available for
Summers to raise his constitutional claims in the state court,
and the district court erred in failing to dismiss this action
when criminal charges involving the same parties and conduct
were pending in state court.
Because abstention is appropriate, this Court should not
reach any of the claims in the complaint.

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