Eugene Wrinn, Jr. v. DAREN JOHNSON, Ohio State Highway Patrol (Lima)

The Honorable James L. Graham, United States District Judge for the Southern District of*
Ohio, sitting by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0174n.06
Filed: March 4, 2009
No. 07-4354
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
EUGENE WRINN, JR.,
Plaintiff-Appellant,
v.
DAREN JOHNSON, Ohio State
Highway Patrol (Lima); G.K.
MANLEY, Ohio State Highway Patrol
(Lima); K.J. KOVERMAN, Ohio
State Highway Patrol (Lima),
Defendants-Appellees,
and
CITY OF LIMA, Lima Municipal
Center et al.,
Defendants.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE NORTHERN
DISTRICT OF OHIO
OPINION
Before: DAUGHTREY and MOORE, Circuit Judges; GRAHAM, District Judge.*
KAREN NELSON MOORE, Circuit Judge. This case is before us for the second time,
following our certification to the Supreme Court of Ohio of the following question of Ohio law:
“Does OHIO REV. CODE ANN. § 2743.02(A)(1) require waiver of a party’s federal causes of action

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against state officers or employees when that party files suit in the Ohio Court of Claims based on
the same act or omission?” Wrinn v. Johnson, No. 07-4354, slip op. at 11 (6th Cir. Nov. 12, 2008)
(unpublished order). On January 28, 2009, the Supreme Court of Ohio dismissed the certified
proceeding for lack of prosecution by Plaintiff-Appellant Eugene Wrinn, Jr. (“Wrinn”). In the
absence of guidance from the state court, we proceed to apply this court’s precedents in Leaman v.
Ohio Dep’t of Mental Retardation & Development Disabilities, 825 F.2d 946 (6th Cir. 1987) (en
banc), cert. denied, 487 U.S. 1204 (1988), and Thomson v. Harmony, 65 F.3d 1314 (6th Cir. 1995),
cert. denied, 517 U.S. 1105 (1996), which have answered the above question in the affirmative.
Accordingly, we AFFIRM the district court’s dismissal of all of Wrinn’s claims against Defendants-
Appellees, three officers of the Ohio State Highway Patrol (collectively, “the OSHP officers”).
The background of this case is fully set forth in our order of certification, see Wrinn, No. 07-
4354, slip op. at 3-6, and we restate the relevant factual and procedural background only briefly here.
Wrinn filed this lawsuit in district court on September 11, 2006, naming three groups of defendants,
including the OSHP officers, and asserting six claims under 42 U.S.C. § 1983 and two state-law
claims. Wrinn then filed a separate action in the Ohio Court of Claims, naming the State of Ohio
and two of the OSHP officers as defendants and asserting four claims under Ohio law arising from
the same set of facts alleged in Wrinn’s federal complaint. The Ohio Court of Claims subsequently
dismissed the two OSHP officers from the case and substituted the Ohio State Highway Patrol
(“OSHP”) for the State of Ohio as the named defendant. That state suit was stayed pending
resolution of this federal-court action.
On October 6, 2006, the OSHP (appearing as an interested party) filed a motion to dismiss
the OSHP officers from the federal action under FED. R. CIV. P. 12(b)(6), arguing that Wrinn’s

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Section 2743.02(A)(1) provides in relevant part:1
Except in the case of a civil action filed by the state, filing a civil action in the court
of claims results in a complete waiver of any cause of action, based on the same act
or omission, which the filing party has against any officer or employee, as defined
in section 109.36 of the Revised Code. The waiver shall be void if the court
determines that the act or omission was manifestly outside the scope of the officer’s
or employee’s office or employment or that the officer or employee acted with
malicious purpose, in bad faith, or in a wanton or reckless manner.
OHIO REV. CODE ANN. § 2743.02(A)(1) (emphasis added).
No claims were dismissed as to the remaining defendants—officers from the Allen County2
Sheriff’s Department, Allen County, the Lima Police Department, and the City of Lima.
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claims against the OSHP officers in federal court were barred under the waiver provision of OHIO
REV. CODE ANN. § 2743.02(A)(1) , because Wrinn brought suit in the Court of Claims based on the1
same conduct. On August 13, 2007, the district court granted the OSHP’s motion, dismissing both
Wrinn’s state and federal claims against the OSHP officers. The district court found that it was2
bound by Leaman v. Ohio Dep’t of Mental Retardation & Development Disabilities, 825 F.2d 946
(6th Cir. 1987) (en banc), cert. denied, 487 U.S. 1204 (1988), and subsequent decisions of this court
holding that § 2743.02(A)(1) requires “a complete waiver of all claims, including federal claims,
upon the filing of a similar complaint in the Ohio Court of Claims.” Joint Appendix (“J.A.”) at 31
(Mem. Op. at 6). On September 20, 2007, the district court granted Wrinn’s motion to pursue an
immediate appeal under FED. R. CIV. P. 54(b) and stayed further proceedings in the district court
pending appeal. Wrinn timely appealed, and on January 22, 2008 filed a petition for initial hearing
en banc, which was denied on April 11, 2008.
On appeal, Wrinn argued that the district court erred in ruling that our decision in Leaman
controlled to bar Wrinn’s claims in federal court against the OSHP officers under the waiver
provision of OHIO REV. CODE ANN. § 2743.02(A)(1). In Leaman, we held that § 2743.02(A)(1)

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barred a plaintiff’s federal, as well as state, causes of action against state officials when the plaintiff
files suit against the state in the Court of Claims based on the same acts or omissions. Subsequently,
the Supreme Court of Ohio decided Conley v. Shearer, 595 N.E.2d 862 (Ohio 1992), which
suggested that § 2743.02(A)(1) might not apply to federal civil-rights claims. But in Thomson v.
Harmony, 65 F.3d 1314 (6th Cir. 1995), cert. denied, 517 U.S. 1105 (1996), we held that Conley did
not speak to the question of whether § 2743.02(A)(1) extends to federal claims and therefore
Leaman’s holding was undisturbed.
On November 12, 2008, we issued an order sua sponte certifying to the Supreme Court of
Ohio the question of whether OHIO REV. CODE ANN. § 2743.02(A)(1) requires the waiver of a party’s
federal causes of action against state officers when that party files suit in the Ohio Court of Claims
based on the same act or omission. We noted that “the Supreme Court of Ohio has never directly
ruled on the question of whether § 2743.02(A)(1) is applicable to federal claims” and therefore
“[o]ur decisions in Leaman and Thomson remain speculation, or Erie guesses, about the meaning
of § 2743.02(A)(1).” Wrinn, No. 07-4354, slip op. at 10. We also noted, however, that “[i]f we were
to decide the case before us without certifying this question to the Ohio Supreme Court . . . we would
be bound by Leaman and Thomson to hold that all of Wrinn’s claims against the OSHP officers are
barred by § 2743.02(A)(1).” Id.
Our order of certification was filed at the Supreme Court of Ohio on November 13, 2008.
Rule XVIII of the Rules of Practice of the Supreme Court of Ohio requires that “[w]ithin 20 days
after a certification order is filed with the Supreme Court, each party shall file a memorandum”
addressing the certified question. R. of Prac. Sup. Ct. Ohio XVIII, § 6. The OSHP officers timely
filed a memorandum before the twenty-day period expired on December 3, 2008. However, Wrinn’s

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After the Supreme Court of Ohio’s dismissal of the certified proceeding, the parties filed3
additional briefs with this court. Wrinn filed a “Motion to Reinstate Appeal on Docket,” which is
incorrectly captioned and unnecessary because the case was not finally disposed of by this court and
remained on our docket pending disposition of the certified proceeding in the Supreme Court of
Ohio. The OSHP officers filed a “Motion to Dismiss for Failure to Prosecute,” asking us to dismiss
Wrinn’s appeal and citing dicta from our decision in Diamond Club v. Insurance Co. of North
America, 984 F.2d 746, 747 (6th Cir. 1993), where we cautioned that “failure to comply with state
rules on certification matters . . . may lead not only to dismissal in state court, but to dismissal in this
court as well.” Although we find the lack of diligence by Wrinn’s attorneys extremely troubling, we
decline to impose the severe sanction of dismissal and instead decide Wrinn’s appeal on the merits.
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attorneys failed to file the required memorandum by the filing deadline, and the OSHP officers
moved the Supreme Court of Ohio to dismiss the certified proceeding for failure to prosecute. On
January 28, 2009, the Supreme Court of Ohio granted the OSHP officers’ motion to dismiss for want
of prosecution by Wrinn. Wrinn v. Johnson, No. 2008-2209 (Ohio Jan. 28, 2009).
Because the Supreme Court of Ohio dismissed the certified proceeding for failure to
prosecute, we now proceed to decide the merits of Wrinn’s appeal. As we stated in our order of3
certification, our decisions in Leaman and Thomson hold that “a plaintiff waives all claims he may
have against state officers, including federal claims, when he brings suit in the Court of Claims based
on the same acts or omissions.” Wrinn, No. 07-4354, slip op. at 10; see also Plinton v. County of
Summit, 540 F.3d 459, 463 (6th Cir. 2008) (“The Sixth Circuit has consistently applied Leaman to
bar plaintiffs from bringing suit in federal court against a state employee after bringing suit against
the state in the Court of Claims based on the same claim.”). Because Wrinn brought suit against the
State of Ohio in the Court of Claims, OHIO REV. CODE ANN. § 2743.02(A)(1) bars Wrinn’s claims
in federal court against the OSHP officers based on the same acts or omissions.

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CONCLUSION

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For the foregoing reasons, we AFFIRM the district court’s judgment dismissing all of
Wrinn’s claims against the OSHP officers.

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