Clarence Elkins ; Branden Elkins ; Clarence Elkins , J R .; Melinda Elkins v. Summit County , Ohio

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Pursuant to Sixth Circuit Rule 206
File Name: 10a0235p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
CLARENCE ELKINS ; BRANDEN ELKINS ;
CLARENCE ELKINS , J R .; M ELINDA ELKINS ,
Plaintiffs-Appellees,
v.
SUMMIT COUNTY , OHIO ; M ICHAEL KALLAI,
Chief of Police; PETER M AURER , Sergeant; B.
DAVIS , Detective,
Defendants,
DANTON ADAIR , Officer; M. HUDAK ,
Detective; J.L. FLAKER , Detective; DON
ADAMSON , Sergeant; J IM WEESE , Detective,
in their individual and official capacities,
Defendants-Appellants.
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N
No. 09-3680
Appeal from the United States District Court
for the Northern District of Ohio at Akron.
No. 06-03004—James S. Gwin, District Judge.
Argued: June 9, 2010
Decided and Filed: August 10, 2010
Before: MARTIN, RYAN, and KETHLEDGE, Circuit Judges.
_________________
COUNSEL
ARGUED: John T. McLandrich, MAZANEC, RASKIN, RYDER & KELLER CO., L.P.A.,
Cleveland, Ohio, for Appellants. Russell Ainsworth, LOEVY & LOEVY, Chicago, Illinois,
for Appellees. ON BRIEF: John T. McLandrich, Frank H. Scialdone, MAZANEC,
RASKIN, RYDER & KELLER CO., L.P.A., Cleveland, Ohio, for Appellants. Russell
Ainsworth, Jonathan Loevy, LOEVY & LOEVY, Chicago, Illinois, for Appellees.
1

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No. 09-3680 Elkins, et al. v. Summit County, Ohio, et al. Page 2
1Facts are drawn from the district court opinion. See Elkins v. Summit County, Ohio, No. 5:06-
CV-3004, 2009 WL 1150114, at *1 (N.D. Ohio Apr. 28, 2009).
_________________
OPINION
_________________
BOYCE F. MARTIN, JR., Circuit Judge. A jury convicted Clarence Elkins, Sr., of
raping and murdering his mother-in-law, Judith Johnson, and of assaulting and raping his
six-year-old niece, Brooke Sutton. The jury sentenced him to life in prison with no
eligibility for parole. Seven years later, Elkins obtained DNA evidence that proved that Earl
Mann, Johnson’s neighbor at the time of the murder, had committed the crimes, and Elkins
was exonerated. The case against Elkins was dismissed, and the State of Ohio awarded him
$1,075,000 in a wrongful imprisonment settlement.
Thereafter, Elkins brought suit on a variety of state and federal claims in the United
States District Court in the Northern District of Ohio against the City of Barberton, Ohio,
and multiple officers and detectives who had investigated the Johnson murder. Elkins
claimed that the officers failed to disclose to the prosecution a memorandum that would have
exonerated him. The officers and the city moved for summary judgment on all the claims,
asserting that they were entitled to qualified immunity and state sovereign immunity. The
court dismissed the claims against the city and granted the officers qualified immunity on
all claims except: (1) the Brady violation of Elkins’ constitutional right to due process under
42 U.S.C. § 1983 claim; and (2) the state-law malicious prosecution and loss of consortium
claims. We affirm.
I.
On June 6, 1998, Johnson was raped and murdered in her home at Barberton, Ohio.1
Her six-year-old granddaughter, Brooke, was also assaulted and raped. Based on
Brooke’s statement that the rapist looked like her uncle, Elkins, the Barberton police
arrested Elkins. Shortly thereafter, he was indicted on charges of aggravated murder,
attempted aggravated murder, rape, and felonious assault.

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No. 09-3680 Elkins, et al. v. Summit County, Ohio, et al. Page 3
2Strong-arm robberies are robberies in which the victim is surrounded by a group of individuals
who brutally beat the victim while robbing him or her.
3These procedures were not contested at the trial.
On January 5, 1999, while the Elkins investigation was ongoing, Mann was
arrested by the Barberton police for two “strong-arm” robberies.2 During the course of
the arrest, Mann, who was drunk, asked a patrol officer, Gerard Antenucci, “Why don’t
you charge me with the Judy Johnson murder?” In compliance with his training that
mandated reporting anything that officers believed the Detective Bureau should know
about, Antenucci wrote an interdepartmental memorandum memorializing Mann’s
statement and directed it to the department that was investigating Johnson’s murder.
Antenucci later testified that he wrote the memorandum that day and placed it in a mail
box that, according to department procedures,3 was emptied each day by a member of
the Detective Bureau and disseminated to the detectives working on the specific case.
However, the Mann memorandum was not disclosed to Elkins or the prosecution and
was never produced.
At trial, Brooke identified Elkins as the perpetrator. However, Elkins presented
substantial evidence that someone else committed the crime. Elkins’ then-wife, Melinda
Elkins, who is Johnson’s daughter, testified that Elkins had been at home with her, forty
miles away from Johnson’s house, at the time of the crime. Other witnesses testified to
having spent time with Elkins during the evening until shortly before the murder
occurred. More significantly, the officers recovered pubic hair and head hairs from
Johnson’s anus and Brooke’s nightgown that, when subjected to DNA analysis, did not
match Elkins’ hair. The officers obtained hair samples from several other individuals,
attempting to find a DNA match, but did not succeed. On June 4, 1999, a jury convicted
Elkins on all charges and sentenced him to life imprisonment with no eligibility for
parole.

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No. 09-3680 Elkins, et al. v. Summit County, Ohio, et al. Page 4
4Elkins became aware of a news report stating that Mann had been arrested and convicted of
molesting his three young daughters while living next door to Johnson. As luck would have it, Mann was
sentenced to prison and transferred to the same facility where Elkins was housed. Elkins noticed that
Mann left a cigarette butt on a table in the recreational area. He requested that another prisoner watch the
butt while he obtained toilet paper in order to recover the cigarette without tainting any DNA evidence.
Elkins then spent the next two weeks illicitly attempting to get a plastic bag through the prison black
market so that he could smuggle the cigarette out of prison for his attorney to test, which he eventually did.
The testing showed that Mann’s DNA matched the DNA found at the scene of the Johnson murders.
(Appellee Br. at 14-15.)
In 2002, Brooke recanted her testimony, but the state did not reverse its
conviction. The same year, through a series of breathtakingly improbable coincidences,4
Elkins began to suspect that Mann was Johnson’s murderer and was able to obtain a
DNA sample from him. Subsequent testing revealed that Mann’s DNA matched the
DNA found at the Johnson murder scene, and after an investigation, Elkins was released
from prison after serving seven years. Mann ultimately pled guilty to Johnson’s murder,
and the criminal case against Elkins was dismissed. The Summit County Court of
Common Pleas found that Elkins was wrongfully imprisoned and the State of Ohio
awarded him $1,075,000 in a wrongful imprisonment settlement.
On December 18, 2006, Elkins brought suit against multiple defendants,
including the City of Barberton, Officer Danton Adair, Detective M. Hudak, Detective
J.L. Flaker, Sergeant Don Adamson and Detective Jim Weese on multiple state and
federal claims. The individual defendants requested summary judgment, alleging that
they were protected from suits by qualified immunity and state sovereign immunity.
The district court dismissed the claims against the city and granted summary
judgment to the officers on all claims but the section 1983 due process claim, the state-
law malicious prosecution claim, and the derivative state-law loss of consortium claim.
The court held that, in a summary judgment posture, it must infer that the detectives both
received and failed to disclose the memorandum, and that the failure to disclose the
memorandum violated Elkins’ right to due process. It further held that Elkins had
presented sufficient evidence to show that the officers acted in bad faith or were reckless
in failing to disclose the memo, and therefore provided sufficient evidence to support the
state-law malicious prosecution claim. The officers timely appealed.

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No. 09-3680 Elkins, et al. v. Summit County, Ohio, et al. Page 5
II.
We review the district court’s denial of summary judgment de novo. Moldowan
v. City of Warren, 578 F.3d 351, 373 (6th Cir. 2009). “Summary judgment is proper ‘if
the pleadings, the discovery and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law.’” Id. at 373-74 (quoting FED .R.CIV .P. 56(c)). “A genuine
issue of material fact exists when there are ‘disputes over facts that might affect the
outcome of the suit under the governing law.’” Id. (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)). “However, ‘[w]here the record taken as a whole could
not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine
issue for trial.’’” Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). “That Defendants’ motions for summary judgment were based
on claims of . . . qualified immunity does not affect the standard of review that applies.
[This] is a legal question that this Court reviews de novo.” Id. (internal citation omitted).
III.
Elkins brings claims under 42 U.S.C. § 1983, alleging that the officers deprived
him of his constitutional right to a fair trial when they failed to disclose the Mann
memorandum to the defense, evidence that Elkins claims would likely have made a
substantial difference to the outcome of his trial. He also advances a state-law malicious
prosecution claim and derivative loss of consortium claim. The officers respond that
they are entitled to qualified immunity and state sovereign immunity on all the claims
and, thus, the district court erred in denying them summary judgment on Elkins’ section
1983 violation claim, and the state malicious prosecution and loss of consortium claims.

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No. 09-3680 Elkins, et al. v. Summit County, Ohio, et al. Page 6
5The officers allege that the district court applied the wrong legal standard to the case. While
Moldowan, which is this Court’s most recent iteration of the relevant law, had not been decided at the time
of the district court’s opinion, the district court’s analysis is legally sound.
6“[F]ederal appellate courts have jurisdiction to hear interlocutory appeals considering ‘the legal
question of qualified immunity, i.e., whether a given set of facts violates clearly established law.’”
Moldowan, 578 F.3d at 369 (quoting Farm Labour Org. Comm. v. Ohio State Highway Patrol, 308 F.3d
523, 531 (6th Cir. 2002)). “Our jurisdiction is limited to resolving pure questions of law . . . [and] we lack
jurisdiction to consider a ‘district court’s summary judgment order insofar as that order determines whether
or not the pretrial record sets forth a ‘genuine’ issue of fact for trial.’” Id. at 369-70 (quoting Johnson v.
Jones, 515 U.S. 304, 313 (1995).
A. Section 1983 Claim
1. Qualified Immunity
In evaluating qualified immunity claims, we “[f]irst . . . determine whether a
constitutional violation occurred; second, we determine whether the right that was
violated was a clearly established right of which a reasonable person would have
known.” Moldowan, 578 F.3d at 375.5 The officers claim first that they are entitled to
qualified immunity on the due process claim because Elkins has not presented sufficient
evidence demonstrating that the officers actually received the Mann memorandum and
that, had they received it, he cannot show that the memorandum was apparently
exculpatory.
Although the officers either deny having seen the memorandum or did not testify
regarding the memorandum, they do not contest that Antenucci created and dispatched
the memorandum to the Detective Bureau in accordance with department policies. There
is also no dispute that the memorandum, if mailed, would have been delivered to the
detectives assigned to the case. Evidence adduced at trial reveals that no other relevant
document in the case was missing, and that the incident report regarding Mann’s
robbery, which was also placed into the mailbox along with the Mann memorandum,
was received by the detectives and preserved. It is also uncontested that the Mann
memorandum was never delivered to the prosecutor or Elkins.
Given that, when appealing a denial of qualified immunity, “the defendant must
. . . be willing to concede the most favorable view of the facts to the plaintiff for
purposes of the appeal,” id. at 370,6 we agree with the district court’s conclusion that

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No. 09-3680 Elkins, et al. v. Summit County, Ohio, et al. Page 7
“the Court must assume that the Mann memo was delivered to the [officers] working the
Elkins case, according to police policy and custom,” and also assume that “having read
the memo, the [officers] withheld it, never divulging it to the prosecution, thereby
preventing it from being disclosed to the defense.” Elkins, 2009 WL 1150114, at *8.
Having assumed that the officers received the Mann memorandum and did not
divulge it, we must next determine whether that failure violated Elkins’ constitutional
right to due process. “‘[T]he suppression by the prosecution of evidence favorable to
an accused . . . violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution.’” Moldowan,
578 F.3d at 376-77 (quoting Brady, 373 U.S. at 87). Traditionally, this duty applied to
prosecution rather than police, but in Moldowan, we held that “the due process
guarantees recognized in Brady also impose an analogous or derivative obligation on the
police [to disclose to the prosecutor evidence whose materially exculpatory value should
have been “apparent” to him at the time of his investigation].” Id. at 382, 388. Thus,
Elkins had a constitutional right to have favorable evidence disclosed to the prosecution
and court.
Next, we must determine whether the “‘contours of the right [were] sufficiently
clear that a reasonable official would understand that what he is doing violate[d] that
right,’” id. at 382 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)) at the time
the officers failed to disclose the Mann memorandum—in this case, January 5, 1999, the
date that Antenucci wrote and mailed the memorandum to the officers. In Moldowan,
we found that “at least three circuits recognized prior to August 1990 . . . this right was
clearly established,” id., and that the right may have been clearly established as early as
1964. Id. Thus, Elkins’ right to have the Mann memorandum disclosed was clearly
established on January 5, 1999.

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No. 09-3680 Elkins, et al. v. Summit County, Ohio, et al. Page 8
2. Apparent Exculpatory Nature of the Memorandum
Having determined that Elkins’ claims against the officers implicate a clearly
established constitutional right, we must next determine whether, taking the facts alleged
by Elkins as true, Elkins can show a violation of this right. In order to do so, Elkins
must provide evidence that “‘the exculpatory value’ of the evidence [was] ‘apparent.’”
Moldowan, 578 F.3d at 388 (quoting California v. Trombetta, 467 U.S. 479, 489 (1984)).
Moldowan is grounded in two Supreme Court cases, Arizona v. Youngblood, 488 U.S.
51 (1988) and California v. Trombetta, 467 U.S. 479. Although Youngblood established
that police cannot be held accountable for failing to divine the materiality of every scrap
of evidence, Trombetta holds that when police have in their possession a piece of
evidence that “might be expected to play a significant role in the suspect’s defense,” Id.
at 488, they have a constitutional duty to preserve that evidence.
Thus, the question for us is whether the exculpatory value of the Mann
memorandum would have been apparent to the detectives given the state of the case at
the time. See Moldowan, 578 F.3d at 388-89; Trombetta, 467 U.S. at 487-88. While we
have never elucidated a test for determining what evidence is apparently exculpatory,
there is no question that, in light of the broad range of evidence available to the officers
at the time, the Mann statement “cast serious doubt on, if not entirely discredit[ed
Brooke’s] identification of [Elkins].” Moldowan, 578 F.3d at 382. Even less would
have been sufficient.
The case against Elkins was flimsy at best. His conviction relied primarily upon
the testimony of a six-year-old child who had been attacked in her bed in the dark,
savagely raped, and never clearly saw her attacker. On the morning following her rape,
Brooke went to Mann’s house for help. When Mann’s wife answered the door, she did
not call 911 or alert the police, but instead asked Brooke—who was covered in
blood—to wait on the front porch and then drove her home, behavior that is highly
unusual if not suspect. Additionally, several witnesses testified that Elkins was home
with his wife, forty miles away from the scene of the crime, at the time it took place.
Moreover, the officers knew that body hair found in Johnson’s anus and on Brooke’s

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No. 09-3680 Elkins, et al. v. Summit County, Ohio, et al. Page 9
nightgown suggested that someone other than Elkins had sodomized and murdered
Johnson and then raped Brooke.
Mann, who was out of prison on parole, was arrested for committing violent
crimes, two “strong-arm” robberies. When the police arrested him, he listed his address
as being next door to Johnson. Moreover, when Mann made the incriminating statement
to Antenucci, Antenucci found the statement so obviously exculpatory that he
memorialized it in a memorandum that he forwarded to the detectives on the Elkins’
case.
The officers had all of this information available to them at the time that they
received the memorandum. Furthermore, they knew that the case against Elkins was
weak and had been attempting to identify other suspects whose DNA matched the DNA
found at the crime scene. Thus, it is clear that Mann’s statement, which linked him
directly to Johnson’s murder, “might be expected to play a significant role in [Elkins’]
defense.” Id. at 388. Therefore, the Mann memorandum was apparently exculpatory in
light of the whole case at the time, and the officers’ failure to disclose it violated Elkins’
right to due process.
Thus, we affirm the district court’s denial of summary judgment as to the
officers’ liability on Elkins’ section 1983 claim.
B. State-Law Malicious Prosecution and the Derivative Loss of Consortium Claims
The district court granted Elkins summary judgment on his state-law malicious
prosecution claims, finding that he had “presented sufficient evidence at the summary
judgment stage to show that the [officers] withheld exculpatory evidence more than
negligently.” Elkins, 2009 WL 1150114, at *13. The officers appeal, claiming that
Elkins failed to provide sufficient evidence that they acted maliciously, in bad faith, or
recklessly. See O.R.C. § 2744.03(A)(6)(b) (granting employees of political subdivisions
immunity from civil liability unless the acts that formed the basis of the claim were
committed with “malicious purpose, in bad faith, or in a wanton and reckless manner.”).

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No. 09-3680 Elkins, et al. v. Summit County, Ohio, et al. Page 10
7Furthermore, were we to review the state claims, we would find that Elkins has presented
evidence sufficient to withstand summary judgment on the question of whether the officers’ failure to
disclose the memorandum was more than negligent. Officers allegedly told Johnson’s daughter, who
discovered a lampshade bearing two bloody hand-prints in Johnson’s house following the police
investigation, that they did not need the lampshade “because they had enough evidence already.”
Moreover, an alibi witness, Sue Dalton, testified that, when she informed the officers that she had seen
Elkins the night of the murder and did not believe that he committed the crime, the officers allegedly
responded, “we got our man, we know for a fact that we have our man.” When Dalton continued to
protest, the officers allegedly told her that, if she did not distance herself from Elkins, she would end up
in jail. Id. Furthermore, one of the officers allegedly falsified a police report to hide evidence that Brooke
was unsure that Elkins had attacked her. Id. In addition, Elkins has presented unrefuted testimony that
the apparently exculpatory Mann memorandum was mailed to the officers.
Under the Ohio law in place at the time that Elkins’ claims accrued, we do not
have jurisdiction to review an interlocutory appeal of a denial of immunity from liability
under state law. See Chesher v. Neyer, 477 F.3d 784, 794 (6th Cir. 2007) (holding that
the April 9, 2003 amendment of the Ohio Revised Code section 2744.03 making a
denial of immunity immediately appealable applies only prospectively to claims accruing
after the effective date of the amendment). “Our jurisdiction thus turns on whether the
claims to which the denial of immunity applied accrued on or after [the 2003
amendment].” Id. As the statements by Mann occurred on January 5, 1999 and Elkins
was convicted on June 4, 1999, there is no question that Elkins’ state law claims accrued
in 1999, prior to the 2003 amendment. Thus, we do not have jurisdiction to review
them.7
IV.
For the reasons set forth above, we AFFIRM the district court’s denial of
summary judgment.

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