S.j. v. HAMILTON COUNTY, OHIO; HILLCREST TRAINING SCHOOL; and WILLIAM H. HAMILTON

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0188P (6th Cir.)
File Name: 04a0188p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
S.J.,
Plaintiff-Appellee,
v.
HAMILTON COUNTY, OHIO;
HILLCREST TRAINING
SCHOOL; and WILLIAM H.
HAMILTON,
Defendants-Appellants.
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No. 02-3852
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 98-00603—Susan J. Dlott, District Judge.
Argued: December 9, 2003
Decided and Filed: June 22, 2004
Before: BOGGS, Chief Judge; and BATCHELDER and
SUTTON, Circuit Judges.
_________________
COUNSEL
ARGUED: David Todd Stevenson, HAMILTON COUNTY
PROSECUTING OFFICE, Cincinnati, Ohio, for Appellants.
2 S.J. v. Hamilton County, Ohio, et al. No. 02-3852
Marc D. Mezibov, SIRKIN, PINALES, MEZIBOV &
SCHWARTZ, Cincinnati, Ohio, for Appellee. ON BRIEF:
David Todd Stevenson, Stephen K. Shaw, HAMILTON
COUNTY PROSECUTING OFFICE, Cincinnati, Ohio, for
Appellants. Marc D. Mezibov, Michael N. Budelsky,
SIRKIN, PINALES, MEZIBOV & SCHWARTZ, Cincinnati,
Ohio, for Appellee.
_________________
OPINION
_________________
BOGGS, Chief Judge. This case presents the question of
whether Hillcrest Training School, a juvenile facility created
pursuant to Ohio Rev. Code § 2151.65, is cloaked with
Ohio’s sovereign immunity against a 42 U.S.C. § 1983 action
brought by a former Hillcrest resident. The district court held
that Hillcrest was not entitled to sovereign immunity. For the
reasons explained below, we affirm.
I
Plaintiff S.J., when a minor, was referred to Hillcrest by
order of the Hamilton County Juvenile Court. His complaint
alleges that he was sexually assaulted several times by a
fellow resident, R.B., who sneaked into his room at night.
The last attack took place on the night after S.J. had informed
a Hillcrest employee about the assaults. R.B. later admitted
attacking S.J., and was adjudicated a delinquent. S.J. sued
Hillcrest, its superintendent, and Hamilton County under
§ 1983, alleging that they violated his Fourteenth Amendment
rights by failing to investigate and prevent sexual abuse, and
failing to train Hillcrest employees adequately. The
defendants moved for summary judgment on the basis of
sovereign immunity, arguing that Hillcrest is an arm of the
State of Ohio because it was created by state law and is
overseen by the juvenile court. The magistrate judge
disagreed, and recommended denying the motion. The

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No. 02-3852 S.J. v. Hamilton County, Ohio, et al. 3
1The district co urt pro perly construed this late-filed motion as a
“suggestion” that it lacked subject-matter jurisdiction. Such a filing may
be made at any time. Fed. R. Civ. P. 12 (h)(3); Von Dunser v. Aronoff,
915 F.2d 1071, 10 74 (6th Cir. 1990).
2W e will henceforth refer to H illcrest, and other facilities under
§ 2151.65 , as “juvenile training facilities,” to distinguish them from the
“juvenile detention facilit[ies]” authorized by § 2152.41.
district court adopted the magistrate’s recommendation in
relevant part.
Later, the defendants filed a motion to dismiss the
complaint for lack of subject matter jurisdiction, in effect
asking the district court to revisit its ruling on sovereign
immunity.1 The motion argued that dismissal was necessary
in light of this court’s unpublished decision in Oswald v.
Lucas County Juvenile Det. Ctr., No. 99-3771, 2000 U.S.
App. LEXIS 27990 (6th Cir. Oct. 30, 2000), which held that
a “juvenile detention facility” defined under former Ohio Rev.
Code § 2151.34 (now Ohio Rev. Code § 2152.41) was “part
of the juvenile court, which is an arm of the state,” and
therefore was entitled to sovereign immunity. Id. at ** 5-6.
However, the district court concluded that the “juvenile
detention facility” at issue in Oswald was distinguishable
from Hillcrest, a juvenile facility defined under Ohio Rev.
Code § 2151.652 and it denied the motion to dismiss.
Defendants timely appealed. Under the collateral order
doctrine, we have jurisdiction over an appeal from a district
court’s denial of sovereign immunity to a government entity
that claims to be an “arm of the state.” Puerto Rico Aqueduct
and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139
(1993); Tenn. v. United States Dep’t of Transp., 326 F.3d
729, 733 (6th Cir. 2003). We review de novo the legal
question of whether Hillcrest is entitled to sovereign
immunity, Timmer v. Mich. Dep’t of Commerce, 104 F.3d
833, 836 (6th Cir. 1997), but accept any pertinent factual
findings by the district court unless they are clearly erroneous,
4 S.J. v. Hamilton County, Ohio, et al. No. 02-3852
Keller v. Cent. Bank of Nigeria, 277 F.3d 811, 815 (6th Cir.
2002).
II
A
Hillcrest operates within a statutory framework that vests
both the state and Hamilton County with a role in its
administration. Juvenile training facilities such as Hillcrest
belong to a broader class of facilities referred to in the Ohio
Code as “single county or joint-county facilities.” Ohio Rev.
Code § 307.021(A) (authorizing board of county
commissioners to construct such facilities). The same
statutory provision states generally that “the juvenile court
[is] . . . the branch of state government having jurisdiction
over any such . . . juvenile . . . facilities.” Ibid. Hillcrest’s
specific authorizing statute, Ohio Rev. Code § 2151.65,
provides:
Upon the advice and recommendation of the juvenile
judge, the board of county commissioners may provide
by purchase, lease, construction, or otherwise a school
. . . or other facilit[y] where delinquent children, . . .
dependent children, abused children, unruly children, . . .
or neglected children or juvenile traffic offenders may be
held for training, treatment, and rehabilitation. . . . Such
. . . facility . . . shall be maintained as provided in
Chapters 2151. and 2152. of the Revised Code. [. . . ]
The juvenile court shall determine:
(A) The children to be admitted to any school . . . or
other facility maintained under this section;
(B) The period such children shall be trained, treated, and
rehabilitated at such facility;
(C) The removal and transfer of children from such
facility.

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No. 02-3852 S.J. v. Hamilton County, Ohio, et al. 5
Thus, by the terms of the statute, the initial request to create
a facility such as Hillcrest originates from the juvenile court,
which is a division of the Ohio Court of Common Pleas.
Ohio Rev. Code § 2151.08. The county possesses the
discretion to grant or refuse this initial request. However, if
the county agrees, the facility must “be maintained as
provided in [Ohio Rev. Code §§] 2151. and 2152.” Ibid.
These sections authorize the juvenile court to demand funds
from the county that are reasonably necessary to operate
Hillcrest, as part of the court’s annual appropriation for
“administrative expenses.” Ohio Rev. Code § 2151.10. The
county must provide the funds requested if they are
“reasonably necessary to meet . . . [the] administrative
expenses of the court” and its facilities. Ibid.; see § 2151.13;
State ex rel. Wilke v. Hamilton County Bd. of Comm’rs, 734
N.E.2d 811, 818 (Ohio 2000) (county must pay court’s
funding request unless it can prove that request is an abuse of
discretion). The statutory scheme also authorizes the juvenile
court to appoint Hillcrest’s superintendent and to determine
his compensation. Ohio Rev. Code § 2151.70.
Hillcrest receives the large majority of its funding from
Hamilton County. It also receives some funds from the Ohio
Department of Youth Services and the Ohio Department of
Mental Health, and it is subject to standards promulgated by
the Department of Youth Services.
B
The text of the Eleventh Amendment explicitly refers to the
immunity of the states from suits “commenced or prosecuted
. . . by Citizens of another State.” U.S. Const., amend. XI.
However, the Supreme Court has made clear that the
sovereign immunity of the states “neither derives from nor is
limited by the terms of the Eleventh Amendment,” Alden v.
Maine, 527 U.S. 706, 713 (1999), and that it extends to
actions brought against a state by its own citizens, Hans v.
Louisiana, 134 U.S. 1, 15 (1890). Sovereign immunity
applies not only to the states themselves, but also to “state
6 S.J. v. Hamilton County, Ohio, et al. No. 02-3852
3In theory, M r. Hamilton m ight be immune, even if Hillcrest is not,
if he was personally acting as an “arm of the state” in connection with the
alleged conduct described in S.J.’s co mplaint – in effect, if his actions or
omissions giving rise to S.J.’s claim were prompted by a state statute. See
Brotherton v. Cleveland, 173 F.3d 552 , 563 (6th Cir. 19 99).
However, the standard to establish such a defense is rigorous, and Mr.
Hamilton does not satisfy it. A local actor who “makes conscious policy
decisions,” and does not simply “mechanically adopt and enforce . . . a
state policy,” cannot claim to have been acting as an arm of the state
unde r this theory. Id. at 565.
Here, while Mr. Hamilton was authorized by statute to supervise the
juvenile facility at Hillcrest, the statute d id not instruct him about how to
exercise that authority. See Ohio Rev. Cod e § 2151 .70. His entitlement
to sovereign immunity thus stand s or falls with that of H illcrest.
instrumentalities,” Regents of Univ. of Calif. v. Doe, 519 U.S.
425, 429 (1997), or, in other words, to those government
entities that act as “arm[s] of the State.” Mt. Healthy City
Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977).
However, it “does not extend to counties and similar
municipal corporations.” Ibid.
Because Ohio counties lack sovereign immunity, see ibid.
(holding that an Ohio school board lacked immunity because
it was “more like a county” than an arm of the state); Alkire
v. Irving, 330 F.3d 802, 811 (6th Cir. 2003), we affirm,
without further discussion, the portion of the district court’s
order denying immunity to defendant Hamilton County.
The difficult issue is determining whether the same is true
of Hillcrest itself – and, derivatively, of its superintendent,
Mr. Hamilton, since for the purpose of sovereign immunity
“individuals sued in their official capacities stand in the shoes
of the entity they represent.” Alkire, 330 F.3d at 811; see
Kentucky v. Graham, 473 U.S. 159, 165 (1985).3 Hillcrest
presents a two-step argument in support of its claim of
sovereign immunity. It contends that the Hamilton County
Juvenile Court is itself an arm of the state, and that Hillcrest
is sufficiently bound to the Juvenile Court to count as “a part

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No. 02-3852 S.J. v. Hamilton County, Ohio, et al. 7
of” the court, thereby entitling it to share in the court’s
immunity. Appellant Br. at 7.
To determine whether an entity is an arm of the state, courts
have traditionally looked to several factors, including:
(1) whether the state would be responsible for a judgment
against the entity in question; (2) how state law defines the
entity; (3) what degree of control the state maintains over the
entity; and (4) the source of the entity’s funding. Brotherton,
173 F.3d at 560 (summarizing past decisions). In an earlier
case whose analysis focused upon state law, we held that an
Ohio Court of Common Pleas was an arm of the state cloaked
with sovereign immunity. Mumford v. Basinski, 105 F.3d
264, 269 (6th Cir. 1997); see also Kelley v. Mun. Cts., 97 F.3d
902, 907-08 (7th Cir. 1996) (holding that municipal court was
a unit of the judicial branch of the state entitled to sovereign
immunity); Franceschi v. Schwartz, 57 F.3d 828, 831 (9th
Cir. 1995) (per curiam) (same); Harris v. Mo. Ct. of App., W.
Dist., 787 F.2d 427, 429 (8th Cir. 1986) (same; Missouri state
court); cf. Foster v. Walsh, 864 F.2d 416, 418-19 (6th Cir.
1988) (per curiam) (determining that state court is not a
“person” suable under 42 U.S.C. § 1983).
Our recent decisions have modified this arm-of-the-state
framework, in light of Supreme Court opinions that “ha[ve]
. . . explicitly [stated] that . . . the most important factor
bearing on the Eleventh Amendment question” is “who would
pay for a damage judgment” against the entity being sued.
Alkire, 330 F.3d at 811 (citing, inter alia, Regents of Univ. of
Calif. v. Doe, 519 U.S. 425, 430 (1997)). The emphasis on
“who pays” is substantial: our recent decisions have left open
the question of “[w]hether we view as dispositive [the]
emphasis on the State treasury, or [simply] interpret it as
placing significant weight on one factor of a multi-factor
test.” Brotherton, 173 F.3d at 561.
Alkire v. Irving has been our latest word on this evolving
legal issue. In Alkire, a § 1983 action against an Ohio county
court, we expressed some doubt about the continued validity
8 S.J. v. Hamilton County, Ohio, et al. No. 02-3852
of Mumford’s reasoning, noting that Mumford had not taken
into account, as the Supreme Court requires, whether the state
would be legally responsible for a judgment against an Ohio
court. See Alkire, 330 F.3d at 811. We did not decide
whether Mumford was correct; instead, we remanded the issue
so that the federal district court could engage in fact finding
on the question of whether a judgment against the county
court would be paid by a county or by the state itself, and
could apply the proper arm-of-the-state analysis in the first
instance. Id. at 813. We have not yet had an opportunity to
re-examine those facts. Cf. Harmon v. Hamilton County Ct.
Of Common Pleas, 83 Fed. Appx. 766, 768 (6th Cir. Dec. 8,
2003) (unpublished order) (concluding that it was “not clear,”
in light of Alkire, whether an Ohio court of common pleas had
sovereign immunity).
Resolving the present case does not require us to decide
whether one of the several Mt. Healthy criteria has now
become the sole criterion for determining whether an agency
is a state entity for sovereign immunity purposes. But there
are significant reasons to doubt such a suggestion. The
Supreme Court explained in Hess v. Port Auth. Trans-Hudson
Corp., 513 U.S. 30 (1994), that the sovereign immunity
doctrine is about money and dignity – it not only protects a
State’s treasury, but also “pervasively . . . emphasizes the
integrity retained by each State in our federal system.” Id. at
39; see id. at 47 (noting that when immunity factors cut in
different directions, “the Eleventh Amendment’s twin reasons
for being remain our prime guide” in arm-of-the-state
inquiry). Indeed, in the important recent case of Fed.
Maritime Comm’n v. S.C. State Ports Auth., 535 U.S. 743
(2002), the Court renewed that emphasis, declaring: “The
preeminent purpose of state sovereign immunity is to accord
States the dignity that is consistent with their status as
sovereign entities.” Id. at 760 (emphasis added).
Examining the contours of related sovereign immunity
doctrines reinforces the impression that values beyond
guarding the public fisc play a role in the arm-of-the-state

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No. 02-3852 S.J. v. Hamilton County, Ohio, et al. 9
inquiry. The Eleventh Amendment ordinarily bars all actions
brought against a State itself, even injunctive actions that
raise no risk of an impact on the treasury. See Pennhurst St.
Sch. & Hosp. v. Halderman, 465 U.S. 89, 102 (1984).
Conversely, it does not ordinarily bar injunctive actions
against state officials, even when those actions may have a
substantial impact on state finances. See Edelman v. Jordan,
415 U.S. 651, 667 (1974).
To the extent that considerations of dignity are relevant in
determining whether an entity is protected by state sovereign
immunity, one would expect this factor to weigh heavily in a
suit against a state court. See Erie R. Co. v. Tompkins, 304
U.S. 64, 78-79 (1938) (“[T]he constitution of the United
States . . . recognizes and preserves the autonomy and
independence of the states . . . in their judicial departments.”).
Such courts are the “adjudicative voice” of the state itself.
Harris, 787 F.2d at 429. That is particularly true in the
context of a court system that, like Ohio’s, is mandated by the
state constitution to be uniform and to be supervised by one
supreme court. Ohio Const. art. IV, § 5; Foster, 864 F.2d at
418. While lower state courts may sometimes be funded by
the counties where they sit, separation of powers concerns
frequently preclude counties and other branches of
government from denying reasonable funding for the
operation of the courts. See, e.g., Ohio Rev. Code
§ 307.01(B); State ex rel. Weaver v. Lake County Bd. of
Comm’rs, 580 N.E.2d 1090, 1092 (Ohio 1991); Mumford,
105 F.3d at 269; cf. Tennessee v. Lane, 124 S. Ct. 1978, 1991
n.16 (2004) (observing that “the provision of judicial
services” is “an area in which local governments are typically
treated as arms of the state for Eleventh Amendment
purposes.”) (punctuation omitted).
In the present case, however, we are asked only to
determine whether Hillcrest is an arm of the state, not whether
the Hamilton County Juvenile Court itself is such. We
conclude that Hillcrest is not an arm of the state.
10 S.J. v. Hamilton County, Ohio, et al. No. 02-3852
4W e note that this provision, by its terms, applies only to tasks
performed in connection with the acquisition, construction, or renovation
of juvenile facilities, and not to the ordinary operations of such facilities,
which are the activities that gave rise to S.J.’s claim here.
As noted above, our inquiry begins by asking who would
be responsible for a judgment against Hillcrest. Hillcrest’s
brief concedes (consistent with the magistrate judge’s finding,
adopted by the district court) that Hamilton County, not the
state of Ohio, would pay such a judgment. Appellant Br. at
18. Thus, this “important” factor weighs against sovereign
immunity. Doe, 519 U.S. at 430.
The second factor is how state law defines Hillcrest. As we
have noted, the authorizing statute describes Hillcrest as a
“single-county juvenile facility,” rather than, for example, as
a state facility. Ohio Rev. Code § 2151.65. However, many
of the relevant statutory provisions suggest a significant
connection between the state and Hillcrest. Under Ohio law,
it is “a public purpose and function of the state” to “acquire,
construct, [and] renovate” training facilities such as Hillcrest.
Ohio Rev. Code § 307.021(A). The counties act as “state
agencies . . . perform[ing] duties of the state” in carrying out
such capital improvements. Ibid.4 Moreover, the juvenile
court, a “branch of state government,” exercises “jurisdiction”
over Hillcrest. Ibid. We conclude that the state-law factor
somewhat supports extending sovereign immunity to
Hillcrest, though other entities, such as a court itself, would
present a stronger claim to sovereign immunity in this regard.
Turning to the third factor, state control, we find that Ohio
exercises some, but limited, control over Hillcrest. The
Hamilton County Juvenile Court, a part of the Ohio judicial
system, controls the admission of juveniles to the facility.
The court appoints Hillcrest’s supervisor and sets his salary,
though it does not administer Hillcrest directly. The juvenile
court also possesses discretion over the facility’s budget:

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No. 02-3852 S.J. v. Hamilton County, Ohio, et al. 11
5As an unp ublished decision o f this court, Oswald also lacks binding
precedential value.
within reasonable limits, its funding requests for Hillcrest
must be honored by the county.
On the other hand, the authorizing statute vests Hamilton
County with discretion over the crucial decision of whether to
create a facility such as Hillcrest at all. Ohio Rev. Code
§ 2151.65. This fact marks an important difference between
Hillcrest and the juvenile detention facility at issue in this
court’s unpublished decision in Oswald. Oswald concluded
that “[u]nder Ohio law, a county juvenile detention center is
part of the juvenile court, which is an arm of the state.” 2000
U.S. App. LEXIS 27990, at *2 (citing former Ohio Rev. Code
§ 2151.34). We agree with the district court that Oswald is
distinguishable from the present case.5 Former § 2151.34,
now Ohio Rev. Code § 2152.41, the provision that authorized
the “juvenile detention facility” at issue in Oswald, provides
that the county “shall” create the detention facility upon the
recommendation of the juvenile court. Ibid. (emphasis
added); see S.J. v. Hamilton County, No. C-1-98-603, Order
Denying Defendant’s Motion to Dismiss, slip op. at 4. Here,
in contrast, § 2151.65 provides only that the county “may”
construct a juvenile facility such as Hillcrest, if the juvenile
court so recommends. The difference in wording, at a crucial
point, in two such closely related statutory provisions as
§§ 2152.41 and 2151.65, clearly vests the county with
authority to grant or deny the juvenile court’s initial request
to create a facility such as Hillcrest.
In so construing this statutory language, we recognize that
Ohio law places limits on the interaction between a legislative
entity such as Hamilton County’s Board of Commissioners
and a judicial entity such as the Hamilton County Juvenile
Court. Ohio’s constitution forbids “granting to a legislative
body . . . the ‘power of the purse’ over judicial
administration.” State ex rel. Johnston v. Taulbee, 423
12 S.J. v. Hamilton County, Ohio, et al. No. 02-3852
N.E.2d 80, 83 (Ohio 1981). “Common pleas courts and their
divisions possess inherent authority to order funding that is
reasonable and necessary to the court’s administration of its
business.” Wilke, 734 N.E.2d at 818. In our judgment, the
co-operative scheme created by Ohio Rev. Code § 2151.65
does not offend these principles. Giving the county a say in
the initial creation of Hillcrest is not the same as giving it a
say in the core functions of the juvenile court. Section
2151.65 authorizes the creation of a separate, subsidiary
government entity that is to be partially administered by the
juvenile court, when the court and the county agree to do so.
Once such a facility is created, the sphere of “judicial
administration” presumably extends to include the new entity,
and the statutory scheme accordingly denies the county
discretion in funding Hillcrest’s operations, consistent with
Ohio’s law of separation of powers. See ibid.
On balance, we conclude that the state control factor favors
sovereign immunity, though not as strongly as it would in the
case of a juvenile detention facility under § 2152.41 (as in
Oswald) or an Ohio court itself.
The final factor, the source of Hillcrest’s funding, can be
dealt with quickly. The parties have stipulated that the great
majority of Hillcrest’s funding comes from Hamilton County,
not the state of Ohio. Hillcrest’s budget in 2000 was
approximately $9,000,000; approximately $710,000 of this
came from state sources, and the rest from the county.
Accordingly, this factor weighs strongly against extending
sovereign immunity to Hillcrest.
Thus, of the four factors typically employed in the arm-of-
the-state inquiry, two (status under state law, and level of
state control) weigh somewhat in favor of sovereign
immunity, and two (responsibility for a judgment, and source
of funding) clearly weigh against sovereign immunity.
Because our precedents and the Supreme Court’s case law
still single out the factor of responsibility for a judgment as
the most important (albeit not exclusive) determinant of arm-

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No. 02-3852 S.J. v. Hamilton County, Ohio, et al. 13
of-the-state status, we hold that Hillcrest, as a juvenile
training facility under Ohio Rev. Code § 2151.65, is not
entitled to assert sovereign immunity as an arm of the state of
Ohio. Accordingly, the district court properly denied the
defendants’ motion to dismiss S.J.’s complaint for lack of
subject matter jurisdiction.
III
For the foregoing reasons, the district court’s order is
AFFIRMED.

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