TERRY L. LUCAS, Jr. v. PHILIP A. CHANCE, JEFFREY CHANCE, and MAHONING COUNTY, OHIO

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0046n.06
Filed: January 18, 2005
No. 03-3357
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
TERRY L. LUCAS, Jr.,
Plaintiff
v.
PHILIP A. CHANCE, JEFFREY
CHANCE, and MAHONING COUNTY,
OHIO,
Defendants
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OHIO
BEFORE: MERRITT, MOORE, and GILMAN, Circuit Judges.
MERRITT, Circuit Judge. This is a § 1983 case raising a First Amendment claim
against municipal officials and a municipality. It is an appeal from a summary judgment in favor
of defendants. The main legal question involves the admissibility of hearsay evidence in
opposition to a motion for summary judgment.
Plaintiff Terry Lucas (“Lucas”) was hired by Sheriff Edward Nemeth (“Nemeth”) in
1993 as a deputy sheriff for Mahoning County, Ohio. Nemeth faced re-election in 1996 and
Lucas campaigned in support of him during his primary race against Phillip Chance, a defendant
in this case. Lucas’s campaigning on behalf of Nemeth included talking with people about the
election, placing signs in his yard and the yards of several family members, purchasing two

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tickets for a Nemeth fundraising event and wearing a pro-Nemeth pin when off-duty.
Jeffrey Chance, a co-defendant in this case, served as a deputy sheriff with Lucas while
his brother Phillip was running for Sheriff. According to Lucas, he was friends with Jeffrey,
who tried to convince Lucas to vote for his brother by telling him to choose the “right team.” In
his deposition, Lucas stated that he considered this to be an implied threat.
In spite of Lucas’s efforts on his behalf, Nemeth lost the primary to Philip Chance. For
the general election, Lucas supported Randall Wellington, Phillip Chance’s opponent, and
conducted limited campaigning on his behalf, primarily consisting of placing a few yard signs.
In response to this round of campaigning, Lucas claims that Jeffrey Chance again asked him to
support his brother’s election and that to support Wellington was to choose the “wrong team.”
Several months after Phillip Chance won the general election and was installed as the
new Sheriff, he transferred Lucas from his assignment at the Youngstown Metropolitan Housing
Authority to a posting at the county jail. Lucas claims that Jeffrey Chance told him the transfer
to a less prestigious position was in retaliation for his political speech against his brother Phillip.
There is no indication that this transfer resulted in a decrease in salary or other benefits.
In September 1998 a special grand jury empaneled to investigate fraud and corruption in
the tri-county area indicted Lucas on charges that he stole money from several individuals
arrested on drug charges. On July 14, 1999, prior to trial and at the prosecutor’s request, the
state court dismissed all charges against Lucas without prejudice.
On July 12, 2001, Lucas filed a § 1983 suit against the Chance brothers, three other local
government officials, and the County itself. All defendants except the Chance brothers and the
County have been dismissed from the case. Lucas claims that the remaining defendants

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1Lucas’s Brief describes these contacts as follows
One of the charges in the indictment against Lucas was that Lucas had kept
[$2500] confiscated in a raid against Harold Lothard (“Lothard”). An attorney
named Paul Gambrel (“Gambrel”) represented Lothard. Gambrel told Lucas that
Jeffrey Chance had approached Lothard. Gambrel also told Lucas that Jeffrey
Chance had instructed Lothard to approach a probation officer and assert that
Lucas had participated in the theft of the [$2500].
Another charge in the indictment was that Lucas was involved in taking money
from an arrestee, Nicholas Fusco (“Fusco”). Robert Ruggeri, a special
prosecutor, told Lucas that Mahoning County Deputies Parise and Farina had
visited Fusco in prison before Fusco made allegations of criminal conduct by
Lucas. Deputies Parise and Farina were close associates of Sheriff Philip Chance.
Lucas reasoned that Philip Chance had dispatched Deputies Parise and Farina to
speak to Fusco in prison. Farina also spoke to an individual named Billy Aaron
(“Aaron”). Farina instructed Aaron to make allegations against Lucas. Farina
advised Aaron that in return for allegations of criminal conduct against Lucas
Aaron would receive help relating to criminal charges then pending against
Aaron. Aaron’s brother told Lucas about Farina’s approach to Aaron.
Lucas Br. at 7-8 (citations omitted).
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conspired with various criminal defendants to manufacture the charges against him and to
influence the prosecutor to seek an indictment. The only evidence that he provides in support of
this claim are his own reports of conversations he had with various parties about his indictments.
In these conversations Lucas was allegedly told about back-room deals made between the
Chances and their agents and several criminal defendants, who were promised favorable
treatment in exchange for their perjured testimony against Lucas.1
Unrelated to the allegations in this case, Phillip Chance was found guilty on federal
bribery charges and linked in the media to organized crime. He is currently serving his sentence
in a federal prison in New York. While these facts may lend some credence to Lucas’s
allegations, they do not change his burden of proof or the rules of evidence.

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2Lucas effectively concedes this point by failing to contest it in his brief. He argues only
that the evidence he offers falls within an exception to the hearsay rule, not that inadmissible
hearsay may be considered on summary judgment.
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The magistrate judge identified the three elements of a First Amendment retaliation claim
as (1) the plaintiff engaged in protected conduct, (2) the plaintiff suffered an adverse action that
would deter a person of ordinary firmness from continuing in that conduct, and (3) a causal
connection existed between the first two elements, or in other words, the adverse action was at
least in part motivated by the plaintiff’s protected conduct. See Thaddeus-X v. Blatter, 175 F.3d
378, 394 (6th Cir. 1999) (en banc). For purposes of opposing a motion for summary judgment,
the magistrate ruled that Lucas was successful with respect to the first two elements. However,
the only evidence he offered in support of the third element was inadmissible hearsay. The
magistrate correctly found that only admissible evidence can be used to oppose a motion for
summary judgment and therefore ruled in favor of the defendants.
It is well-established in this circuit that otherwise inadmissible hearsay evidence may not
be used to support or oppose a motion for summary judgment.2 See Carter v. Univ. of Toledo,
349 F.3d 269, 274 (6th Cir. 2003) (“If the [offered] comments are deemed to be hearsay, then the
evidence could not be considered on summary judgment.”); Wiley v. United States, 20 F.3d 222,
225-26 (6th Cir. 1994) (“[H]earsay evidence cannot be considered on a motion for summary
judgment.”). This rule is grounded in the language of Rule 56(e), which states “[s]upporting and
opposing affidavits [related to a motion for summary judgment] shall be made on personal
knowledge, shall set forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated therein.” Fed. R. Civ. P.
56(e) (emphasis added).

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In response, Lucas argues that the asserted testimony falls within one of the hearsay
exceptions found in Rule 804 of the Federal Rules of Evidence. Under Rule 804, if a declarant is
unavailable as a witness, then additional hearsay exceptions may apply to that declarant’s
statements. These include his former testimony, statements made under belief of impending
death, statements made against interest, and statements made regarding personal or family
history.
Lucas erroneously argues in his brief that the three declarants are unavailable, under Rule
805(a)(5), because they “are highly unlikely to make themselves available to appellant to testify
in a civil case such as this one.” Lucas Br. at 11. But the rules require more than merely
asserting a high probability of uncooperativeness for the exception to apply. “‘Unavailability as
a witness includes situations in which the declarant . . . is absent from the hearing and proponent
of a statement has been unable to procure the declarant’s . . . attendance or testimony . . . by
process or other reasonable means.” Fed. R. Evid. 804(a)(5) (emphasis added). There is no
evidence in the record that Lucas has made any effort whatsoever to “procure the declarants’
testimony.” Instead he merely asserts the belief that the declarants would not make themselves
available if he were to make such an effort. One purpose of the subpoena power is to require the
cooperation of witnesses who would otherwise prefer not to be subjected to the rigors of the
adversarial process. Lucas argues that a proponent of hearsay need not utilize this power of the
court if he believes it will ultimately prove ineffectual. Lucas has offered no support for this
position in the case law or otherwise. “Unavailability” does not mean that a witness may be
hostile or reluctant. The language of the rule “attendance or testimony . . . by process” means
what it says.

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Finally, since Lucas has failed to offer admissible evidence of any First Amendment
violation, he cannot prove liability for the County. See City of Los Angeles v. Heller, 475 U.S.
796, 799 (1986).
Accordingly we AFFIRM the summary judgment entered by the district court.

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