Robert Bright v. Gallia Cnty., Ohio , 753 F.3d 639 ( 2014 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0116p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
ROBERT W. BRIGHT, ┐
Plaintiff-Appellee (13-3451), │
│
Plaintiff-Appellant (13-3907), │ Nos. 13-3451/ 3907
│
v. >
│
│
GALLIA COUNTY, OHIO; BOARD OF COMMISSIONERS │
OF GALLIA COUNTY, OHIO; GALLIA COUNTY PUBLIC │
DEFENDER COMMISSION; and GALLIA COUNTY │
CRIMINAL DEFENSE CORPORATION, │
│
Defendants-Appellees (13-3907),
│
DAVID DEAN EVANS, │
Defendant-Appellant (13-3451). │
┘
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:12-cv-00800—James L. Graham, District Judge.
Argued: March 12, 2014
Decided and Filed: June 3, 2014
Before: MOORE, WHITE, and DONALD, Circuit Judges.
_________________
COUNSEL
ARGUED: Linda L. Woeber, MONTGOMERY, RENNIE & JONSON, Cincinnati, Ohio, for
Appellant in 13-3451. Alphonse A. Gerhardstein, GERHARDSTEIN & BRANCH, CO. LPA,
Cincinnati, Ohio, for Appellee in 13-3451 and Appellant in 13-3907. Daniel T. Downey,
FISHEL HASS KIM ALBRECT LLP, Columbus, Ohio, for Appellees in 13-3907. ON BRIEF:
George D. Jonson, Lisa M. Zaring, MONTGOMERY, RENNIE & JONSON, Cincinnati, Ohio,
for Appellant in 13-3451. Alphonse A. Gerhardstein, Jacklyn Gonzales Martin,
GERHARDSTEIN & BRANCH, CO. LPA, Cincinnati, Ohio, for Appellee in 13-3451 and
Appellant in 13-3907. Daniel T. Downey, Stacy V. Pollock, FISHEL HASS KIM ALBRECT
LLP, Columbus, Ohio, for Appellees in 13-3907.
1
Nos. 13-3451/3907 Bright v. Gallia Cnty., Ohio et al. Page 2
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OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. In this case, there is no debate that Judge
David Dean Evans failed to meet the minimum expectations for members of the judiciary: He
overreacted to attorney Robert Bright’s criticisms and inappropriately removed Bright from
nearly seventy felony cases. The judge’s high-handed actions caused Bright great hardship, but
litigation seeking to hold Judge Evans personally liable is not the solution. Generally, we rely
upon the judges further up the judicial hierarchy to review and correct the rulings of lower
courts. Only in a few circumstances do we allow lawsuits against individual judges to proceed,
and for good reason. The specter of facing a lawsuit naturally encourages overly timid judging
and presents a direct threat to judicial independence. While Judge Evans’s conduct was worthy
of censure, it does not fit within one of the exceptions to absolute judicial immunity; thus, we
must REVERSE the district court’s denial of immunity.
Unfortunately for Bright, our case law also requires us to side against him in his lawsuit
against the Gallia County Board of Commissioners (“the Board”), the Gallia County Public
Defender Commission (“the Commission”), and the Gallia County Criminal Defense
Corporation (“the Corporation”). Under Mezibov v. Allen, 411 F.3d 712 (6th Cir. 2005), the First
Amendment offers no protection to an attorney for his speech in court. Id. at 716. Without such
protection, Bright cannot state a valid claim under 42 U.S.C. § 1983, and we must AFFIRM the
district court’s dismissal.
I. BACKGROUND
Gallia County lies along the Ohio River in Southern Ohio, bordering West Virginia. A
board of commissioners governs the county and is responsible for providing indigent criminal
defendants with legal representation. To that end, the Board established the Commission
pursuant to Ohio Revised Code § 120.13. According to this statute, the Commission is to have
five members—three chosen by the Board; two chosen by the county’s Court of Common Pleas
judge—and must either employ criminal-defense attorneys directly or hire outside counsel. In
Nos. 13-3451/3907 Bright v. Gallia Cnty., Ohio et al. Page 3
this case, the Commission contracted with the non-profit Corporation to hire and retain defense
attorneys, who would represent indigent criminal defendants.
In 2011, the Corporation hired Bright to be one of these county public defenders at a rate
of $5,600 per month. R. 18 at 5 (Am. Compl. at ¶ 15) (Page ID #141). As part of his duties, on
July 25, 2011, Bright represented R.G. before Judge Evans, the county’s only Court of Common
Pleas judge. Bright negotiated a plea agreement between the prosecutor and R.G., but R.G.
hesitated to accept it during the plea colloquy. According to Bright, R.G. was under the
mistaken assumption that he could return home for a short period of time before leaving for
prison. R. 18-2 at 2 (Bright Mot.) (Page ID #154). “Mere seconds” after refusing to accept the
plea agreement, R.G. informed Bright and Judge Evans that he would take the deal after all. Id.
at 2–3 (Page ID #154–55). Judge Evans refused, stating: ‘“No, we’re not going to play games.’”
Id. at 3 (Page ID #155). Judge Evans then ordered trial to be scheduled.
On July 28, 2011, Bright and the prosecutor met with Judge Evans in his chambers in an
attempt to convince the judge to accept R.G.’s plea. Judge Evans refused. On August 3, 2011,
Bright filed a “Motion to Accept Plea” with the court. R. 18 at 6 (Am. Compl. at ¶ 23) (Page ID
#142). In this motion, Bright stated that “[i]t is arbitrary and unreasonable for [Judge Evans] to
refuse to [hold a hearing regarding whether to accept R.G.’s plea as voluntarily, knowingly, and
intelligently made].” R. 18-2 at 6 (Bright Mot.) (Page ID #158). He criticized Judge Evans’s
“blanket policy of a ‘drop dead date’ concerning plea agreements” by which Judge Evans refused
to accept a guilty plea from the defendant or a prosecutor’s decision to drop charges once a
certain date passed. Id. at 8 (Page ID #160). Bright called such a policy “an abuse of discretion
because [Judge Evans’s] position and attitude is unreasonable and/or arbitrary and/or
unconscionable.” Id. at 9 (Page ID #161). Bright also took issue with Judge Evans’s failure to
conduct a full colloquy with R.G. regarding his willingness to plead guilty, id. at 16 (Page ID
#168), with Judge Evans’s categorical refusal to accept “Alford/no contest pleas,” id. at 16 n.5
(Page ID #168), and with Judge Evans’s “‘one strike and you’re out’ policy on community
control violations,” id. at 16–17 (Page ID #168–69). Throughout the motion, Bright cited case
law and made legal arguments. His language was emphatic and forceful in many places (for
Nos. 13-3451/3907 Bright v. Gallia Cnty., Ohio et al. Page 4
example, calling Judge Evans’s actions “unconscionable”), but he used zero profanity and made
no charges of ethical impropriety.
According to Bright, on August 5, 2011, “Judge Evans contacted the Office of
Disciplinary Counsel of the Supreme Court of Ohio . . . and filed a grievance against . . . Bright
on August 8, 2011.” R. 18 at 6 (Am. Compl. at ¶ 24) (Page ID #142). Also on August 8, “Judge
Evans filed a public journal entry in which he declared that . . . Bright’s motion, although not
rising to the level of misconduct or contempt, had created a conflict with the Court and ordered
that . . . Bright be removed from the case of [R.G.].” Id. (Am. Compl. at ¶ 26) (Page ID #142).
In his briefing on appeal, Bright claims that the entry stated:
By such conduct [Bright] has created conflict with the Court whereby in this case
or for that matter any other case in the future, when [Bright] does not agree with a
decision or ruling by the Court, instead of being critical by accusation of being
arbitrary, unreasonable, unconscionable or of abusing discretion, [Bright] simply
may accuse the [C]ourt of being bias[ed] or prejudice[d] as it relates to him. The
Court must not only avoid any impropriety, bias or prejudice but must avoid any
appearance of such. The expressions and attitudes of Defense Counsel [Bright] as
exhibited and announced in the instant motion toward this Court compromises the
Court’s ability to avoid any appearance of bias, prejudice, or to be fair and
impartial as it relates to Defense Counsel [Bright] regardless [of] how hard it tries
or what strides it makes toward guaranteeing that there would be no bias,
prejudice and that it would be fair and impartial.
Bright Appellee Br. at 9 (emphasis deleted).
The next day, Judge Evans filed public journal entries in every other felony case that
Bright had before Judge Evans and removed Bright from each of those cases, approximately
seventy in total. R. 18 at 6–7 (Am. Compl. at ¶ 27) (Page ID #142–43). In its opinion denying
Judge Evans absolute judicial immunity, the district court reproduced an example of these
entries:
Now comes the Court and orders that Michael L. Barr be substituted for counsel
for the defendant. Attorney Robert W. Bright is relieved of further obligation due
to the conflict he has created with the Court and as described in the case of State
of Ohio v. [R.G.], . . . to which reference is here made, and further due [to] the
Courts’s [sic] inquiry to the Office of Disciplinary Counsel, the Supreme Court of
Ohio regarding Mr. Bright’s conduct. Further, the Court finds it is not
feasible/practicable to request the Ohio Supreme Court to assign a visiting judge
to each of the approximately fifty to seventy cases currently handled by Mr.
Nos. 13-3451/3907 Bright v. Gallia Cnty., Ohio et al. Page 5
Bright due to financial burden to Gallia County judicial economy, scheduling of
the court, the constitutional rights of the defendant, and the
constraints/requirements of a speedy trial guaranteed to the defendant. The Court
finds the simplest solution to this created conflict is to appoint new counsel for the
defendant . . . .
R. 43 at 7–8 (D. Ct. Op. Denying Immunity) (Page ID #410–411) (citation omitted; emphasis
deleted). Bright alleges that he sent a letter to Judge Evans in an “attempt[] to amicably resolve
the situation . . . .” R. 18 at 7 (Am. Compl. at ¶ 30) (Page ID #143). Judge Evans did not
respond. Id.
On September 7, 2011, the Corporation “terminated . . . Bright’s employment as a Public
Defender because he could not practice before Judge Evans.” Id. (Am. Compl. at ¶ 32) (Page ID
#143). Bright alleges that the Corporation did so “without [holding] a hearing or [providing]
other due process . . . .” Id.
On September 4, 2012, Bright filed suit in district court against Judge Evans, the Board,
and the Corporation. On November 29, 2012, he amended his complaint to include the
Commission. In the Amended Complaint, Bright alleged several causes of action. First, Bright
claimed that the Board, the Commission, the Corporation, and Judge Evans violated his First and
Fourteenth Amendment rights to free speech, to free association, to substantive due process, to
procedural due process, and to equal protection. R. 18 at 9 (Am. Compl. at ¶ 47) (Page ID
#145). These violations, he asserted, are cognizable under 42 U.S.C. § 1983. Id. Second, Bright
alleged that Judge Evans tortiously interfered with Bright’s contractual rights with the
Corporation in violation of state common law. Id. at 10 (Am. Compl. at ¶¶48–49) (Page ID
#146). Third, Bright averred that Judge Evans tortiously interfered with Bright’s business
relationship with the Corporation, also in violation of state common law. Id. (Am. Compl. at
¶¶ 50–51) (Page ID #146). Fourth, Bright claimed that the Corporation breached the contract
between them by terminating Bright’s employment “without good cause and in violation of
public policy.” Id. (Am. Compl. at ¶ 52) (Page ID #146). Fifth and finally, Bright alleged that
Judge Evans invaded Bright’s privacy by “publicly announc[ing]” that Judge Evans had filed a
grievance with the Office of Disciplinary Counsel in approximately seventy public journal
entries, a violation of the Ohio professional-responsibility rules and common law. Id. (Am.
Compl. at ¶ 53) (Page ID #146).
Nos. 13-3451/3907 Bright v. Gallia Cnty., Ohio et al. Page 6
On December 12, 2013, Judge Evans filed a motion to dismiss the Amended Complaint,
arguing inter alia that the doctrine of absolute judicial immunity protects him from suits for
monetary damages. R. 21 at 7 (Evans Mot. to Dismiss) (Page ID #189). The district court
denied this motion on April 2, 2013. R. 43 at 22 (D. Ct. Op. Denying Immunity) (Page ID
#425). The district court found that Judge Evans’s decisions to remove Bright from felony cases
pending before him were judicial actions. Id. at 12 (Page ID #415). However, the district court
concluded that Judge Evans was “not entitled to absolute judicial immunity because his actions
were completely outside of his jurisdiction.” Id. at 13 (Page ID #416); see id. at 22 (Page ID
#425). Judge Evans appeals this decision. R. 46 at 1 (Evans Notice of Appeal) (Page ID #460).
The other defendants also filed motions to dismiss. The Board and the Commission filed
Rule 12(b)(6) motions, claiming that they were “too far removed from the alleged actions in the
Amended Complaint to be found liable.” R. 20 at 7 (Bd. Mot. to Dismiss) (Page ID #179); R. 28
at 10 (Comm’n Mot. to Dismiss) (Page ID #270). In addition, the Commission asserted that
Bright failed to identify and then connect the Commission to a policy or custom to impose
liability under Monell v. Department of Social Services, 436 U.S. 658 (1978), and its progeny.
R. 28 at 7–8 (Comm’n Mot. to Dismiss) (Page ID #267–68). The district court concluded that
Bright failed to plead sufficiently that the Board or the Commission retaliated against him for
exercising his constitutional rights or that liability attaches to the Board or the Commission under
the Monell doctrine. See R. 53 at 4–6 (D. Ct. Order Granting Bd. & Comm’n Mot. to Dismiss)
(Page ID #539–41).
The Corporation, taking a different line of attack, argued that the district court lacked
subject-matter jurisdiction under Parratt v. Taylor, 451 U.S. 527 (1981), and asked the district
court to dismiss Bright’s suit pursuant to Federal Rule of Civil Procedure 12(b)(1). R. 30 at 1
(Corp. Mot. to Dismiss) (Page ID #276). The district court denied this motion and ordered
supplemental briefing on whether Bright sufficiently pleaded that the Corporation deprived
Bright of a federal right. R. 44 at 6 (D. Ct. Rule 12(b)(1) Op.) (Page ID #453). The parties
complied, and in a subsequent order, the district court determined that Bright’s pleadings were
deficient and dismissed for failure to state a claim under Rule 12(b)(6). R. 52 at 11–17 (D. Ct.
Order Granting Corp. Mot. to Dismiss) (Page ID #529–35). The district court also declined to
Nos. 13-3451/3907 Bright v. Gallia Cnty., Ohio et al. Page 7
exercise supplemental jurisdiction over Bright’s state-law claim against the Corporation and
dismissed it without prejudice. Id. at 16–17 (Page ID #534–35).
Bright requested that the district court certify the dismissals of the claims against the
Board, the Commission, and the Corporation for immediate appeal under Rule 54(b), and the
district court agreed to do so. R. 59 at 2 (D. Ct. Rule 54(b) Order) (Page ID #567). These
appeals followed.
II. JURISDICTION
The district court had jurisdiction to hear Bright’s § 1983 claims under 28 U.S.C. § 1331and to hear his state-common-law claims under 28 U.S.C. § 1367. We have jurisdiction to hear
appeals of final judgments under 28 U.S.C. § 1291. Even though the denial of absolute judicial
immunity is not a final judgment, it is immediately appealable under the collateral order doctrine.
See Mitchell v. Forsyth, 472 U.S. 511, 528–29 (1985); Brookings v. Clunk, 389 F.3d 614, 616–17
(6th Cir. 2004). Furthermore, the district court, finding “no just reason to delay appellate review
of [its] dismissal of the Board . . . , the . . . Commission, or the . . . Corporation,” entered final
judgment with respect to those entities under Federal Rule of Civil Procedure 54(b). R. 59 at 2
(D. Ct. Rule 54(b) Certification) (Page ID #567). This certification was proper, and therefore,
we have jurisdiction to hear Bright’s appeal of the Rule 12(b)(6) dismissals. See Planned
Parenthood Sw. Ohio Region v. DeWine, 696 F.3d 490, 500 (6th Cir. 2012); EJS Properties, LLC
v. City of Toledo, 689 F.3d 535, 537 (6th Cir. 2012).
III. ABSOLUTE JUDICIAL IMMUNITY
Judge Evans moved to dismiss Bright’s § 1983 suit against him on grounds of absolute
judicial immunity from suit. The district court denied this request, a decision that was in error.
Judge Evans’s actions fell short of expectations, but they were actions judicial in nature and
taken in cases over which he had jurisdiction. As a result, he is entitled to absolute judicial
immunity. We REVERSE the district court’s decision and REMAND with instructions to
dismiss Bright’s suit against Judge Evans.
Nos. 13-3451/3907 Bright v. Gallia Cnty., Ohio et al. Page 8
A. Standard of Review
“We review the district court’s denial of immunity de novo as it involves purely a legal
question.” Archie v. Lanier, 95 F.3d 438, 440 (6th Cir. 1996). In determining whether Judge
Evans qualifies for absolute judicial immunity at this stage in the litigation, we “‘must construe
the complaint in the light most favorable to the plaintiff, accept all factual allegations as true, and
determine whether the plaintiff undoubtedly can prove no set of facts in support of his claims
that would entitle him to relief.’” Barnes v. Winchell, 105 F.3d 1111, 1114 (6th Cir. 1997)
(quoting Allard v. Weitzman (In re DeLorean Motor Co.), 991 F.2d 1236, 1240 (6th Cir. 1993)).
Judge Evans, as “[t]he proponent of a claim to absolute immunity[,] bears the burden of
establishing the justification for such immunity.” Antoine v. Byers & Anderson, Inc., 508 U.S
429, 432 (1993); see also Cooper v. Parrish, 203 F.3d 937, 944 (6th Cir. 2000).
B. Legal Standard and Application
“It is a well-entrenched principle in our system of jurisprudence that judges are generally
absolutely immune from civil suits for money damages.” Barnes, 105 F.3d at 1115 (citing, inter
alia, Mireles v. Waco, 502 U.S. 9, 9 (1991); Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351
(1872)). The passage of 42 U.S.C. § 1983 did nothing to change this ancient understanding. See
Briscoe v. LaHue, 460 U.S. 325, 334 (1983); Pierson v. Ray, 386 U.S. 547, 554 (1967).
Importantly, “[t]his immunity . . . is not for the protection or benefit of a malicious or corrupt
judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to
exercise their functions with independence and without fear of consequences.” Pierson,
386 U.S. at 554 (internal quotation marks omitted). “If judges were personally liable for
erroneous decisions, the resulting avalanche of suits, most of them frivolous but vexatious,
would provide powerful incentives for judges to avoid rendering decisions likely to provoke such
suits.” Forrester v. White, 484 U.S. 219, 226–27 (1988) (citing Forrester v. White, 792 F.2d
647, 660–61 (7th Cir. 1986) (Posner, J., dissenting)). “The resulting timidity would be hard to
detect or control, and it would manifestly detract from independent and impartial adjudication.”
Id. at 227. In general, litigants can protect themselves from judicial errors through the appellate
process or other judicial proceedings without resort to suits for personal liability. See id. at 226–
27.
Nos. 13-3451/3907 Bright v. Gallia Cnty., Ohio et al. Page 9
As a result of these strong policy justifications for the doctrine, absolute judicial
immunity can be overcome only in two instances: “First, a judge is not immune from liability
for nonjudicial actions, i.e., actions not taken in the judge’s judicial capacity. Second, a judge is
not immune for actions, though judicial in nature, taken in the complete absence of all
jurisdiction.” Mireles, 502 U.S. at 11–12 (internal citations omitted). The parties focus upon the
latter exception, given the district court’s finding that Judge Evans lacked all jurisdiction to
remove Bright from the nearly seventy felony cases before him. See R. 43 at 12–13, 15 (D. Ct.
Op. Denying Immunity) (Page ID #415–16, 418).
The Supreme Court has long recognized that jurisdiction is a tricky concept: “Indeed
some of the most difficult and embarrassing questions which a judicial officer is called upon to
consider and determine relate to his jurisdiction, or that of the court held by him, or the manner
in which the jurisdiction shall be exercised.” Bradley, 80 U.S. at 352. Accordingly, “[t]he term
‘jurisdiction’ is to be broadly construed to effectuate the purposes of judicial immunity.”
Barnes, 105 F.3d at 1122 (citing Stump v. Sparkman, 435 U.S. 349, 356 (1978)). The Supreme
Court has also acknowledged that there is a difference “between excess of jurisdiction and the
clear absence of all jurisdiction over the subject-matter.” Bradley, 80 U.S. at 351. We have
stated that “[o]nly in the absence of subject matter jurisdiction are judicial actors devoid of the
shield of immunity.” Holloway v. Brush, 220 F.3d 767, 773 (6th Cir. 2000) (en banc); see also
Barnes, 105 F.3d at 1122 (“Generally, where a court has some subject matter jurisdiction, there
is sufficient jurisdiction for immunity purposes.”). And so, “[e]ven grave procedural errors or
acts taken when no statute purports to confer on the court the authority purportedly exercised
will not deprive a judge of judicial immunity.” Stern v. Mascio, 262 F.3d 600, 607 (6th Cir.
2001).
Under this standard, the district court erred in denying Judge Evans absolute judicial
immunity. Judge Evans’s actions were petty, unethical, and unworthy of his office, see Ohio
State Bar Ass’n v. Evans, 999 N.E.2d 674 (Ohio 2013) (sanctioning Judge Evans for his behavior
toward Bright), but Judge Evans and the Court of Common Pleas had subject-matter jurisdiction
over the underlying criminal proceedings, see Ohio Rev. Code § 2931.03. As a result, we cannot
say that Judge Evans acted “‘clearly outside the subject matter of the court over which he
Nos. 13-3451/3907 Bright v. Gallia Cnty., Ohio et al. Page 10
presides.’” Brookings, 389 F.3d at 623 (quoting Johnson v. Turner, 125 F.3d 324, 334 (6th Cir.
1997)).
This court’s decision in Stern is helpful for understanding the scope of judicial immunity
in cases such as this one. In that case, a Court of Common Pleas judge identified a potential
conflict between the judge and one party’s attorney in a case, and he asked both parties to brief
the issue. Stern, 262 F.3d at 603. Instead of filing a brief, plaintiffs’ counsel filed an “Affidavit
of Disqualification” in the Ohio Supreme Court pursuant to Ohio Revised Code § 2701.03. Id. at
604. This provision immediately divests the state-court judge of “any authority to preside in the
[case] until the [C]hief [J]ustice of the [Ohio] [S]upreme [C]ourt . . . rules on the affidavit . . . .”
§ 2701.03(D)(1). Angry at counsel for filing the affidavit, the judge ordered him into the
courtroom and found him in contempt. Stern, 262 F.3d at 605. The Ohio Supreme Court held
that this particular judge “‘patently and unambiguously lack[ed] jurisdiction’” to make such a
ruling. Id. at 609 (quoting State ex rel. Stern v. Mascio, 691 N.E.2d 253, 255 (Ohio 1998))
(alteration in original). Nonetheless, we distinguished between jurisdiction to proceed in the
case and jurisdiction over the subject matter of the case. See id. Because the judge and the
Court of Common Pleas retained subject-matter jurisdiction over the underlying proceeding
under Ohio law, this court held that the judge still enjoyed absolute judicial immunity. Id. at
609–10, n.5.
Here, Judge Evans retained subject-matter jurisdiction over the criminal cases in which
Bright had been appointed. Judge Evans’s actions, however unprofessional and misguided, took
place in the context of those prosecutions. Therefore, Judge Evans did not clearly lack all
jurisdiction, and absolute judicial immunity shields him from suit.
The district court advanced several arguments to the contrary, and Bright continues and
supplements those counterarguments on appeal. None of them are convincing. First, Bright
maintains that Judge Evans acted without jurisdiction when he punished or disciplined Bright, a
responsibility given exclusively to the Ohio Supreme Court. He has a point: the Ohio
Constitution vests the Ohio Supreme Court with exclusive original jurisdiction over the
regulation of the bar. See Ohio Const. art. IV, § 2(B)(1)(g); Melling v. Stralka, 465 N.E.2d 857,
859–60 (Ohio 1984). This fact distinguishes this case from Bradley, in which the Supreme Court
Nos. 13-3451/3907 Bright v. Gallia Cnty., Ohio et al. Page 11
of the United States asserted that “[the] power of removal from the bar is possessed by all courts
which have authority to admit attorneys to practice.” 80 U.S. at 354. The problem for Bright,
however, is that Judge Evans—whether his actions constitute discipline or not—was not sitting
without jurisdiction over a disciplinary hearing; rather, he took these actions while overseeing
nearly seventy criminal prosecutions. Thus, under Stern and similar cases, he still had subject-
matter jurisdiction over those proceedings in which his actions took place—a fact that preserves
his absolute immunity—even if he clearly lacked jurisdiction to take such actions against Bright
independent of the criminal prosecutions.
Second and similarly, Bright argues that Court of Common Pleas judges lack the
authority to disqualify counsel from every case currently before their court and in the future.
Again, this argument founders against Stern. In addition, though, it is not so clear that Bright is
correct on the merits of his point. The Ohio Supreme Court has stated repeatedly that “[a] trial
court has the ‘inherent power to regulate the practice before it and protect the integrity of its
proceedings . . .’ including the ‘authority and duty to see to the ethical conduct of attorneys
. . . .’” Mentor Lagoons, Inc. v. Rubin, 510 N.E.2d 379, 382 (Ohio 1987) (quoting Royal Indem.
Co. v. J.C. Penney Co., 501 N.E.2d 617, 620 (Ohio 1986)) (ellipses in original). In response,
Bright cites State ex rel. Buck v. Maloney, 809 N.E.2d 20 (Ohio 2004), and State ex rel. Jones v.
Stokes, 551 N.E.2d 220 (Ohio Ct. App. 1989), for support and as evidence that Judge Evans’s
actions fell outside this inherent power. The state-court judges in those cases issued blanket bans
against certain attorneys practicing before them at the time or in the future, and the Ohio courts
declared these actions violated the Ohio Supreme Court’s exclusive jurisdiction over attorney-
disciplinary matters. See Maloney, 809 N.E.2d at 23; Stokes, 551 N.E.2d at 222.
These cases are distinguishable on several different grounds. One, the judges’ actions in
Stokes were divorced entirely from a particular proceeding. Here, Judge Evans acted only in
current cases over which he was presiding. By acting only in current cases, Judge Evans was
arguably availing himself of his inherent powers to regulate his courtroom. Two, Maloney and
Stokes both involved prospective bans. Here, Judge Evans removed Bright only from pending
cases over which he had jurisdiction. Admittedly, Judge Evans stated that a conflict existed
between Bright and himself in R.G. “or for that matter any other case in the future.” Bright
Nos. 13-3451/3907 Bright v. Gallia Cnty., Ohio et al. Page 12
Appellee Br. at 9 (internal quotation marks omitted; emphasis deleted). However, Judge Evans
has not definitively banned Bright, as the attorneys in Maloney and Stokes certainly were.
Without a definite statement or standing order, Judge Evans’s actions fall short of the other
judges’ orders in the cases cited by Bright. Thus, it is not clear that Judge Evans was usurping
the exclusive jurisdiction of the Ohio Supreme Court.
Third, Bright argues that civil litigation is the only avenue through which he can combat
Judge Evans’s misconduct and, thus, that the district court correctly denied Judge Evans absolute
immunity. On this point, the cases that Bright cites in his own brief sow his argument’s undoing.
In Stern, the attorney who was eventually the subject of the judge’s wrath filed an affidavit of
disqualification with the Ohio Supreme Court, a motion that prevents a judge from acting in an
attorney’s case automatically. 262 F.3d at 604 (citing Ohio Rev. Code § 2701.03). Such a filing,
if it were made in this case, would have required the Ohio Supreme Court to answer whether
Judge Evans was “bias[ed] or prejudice[d] for or against a party . . . or a party’s counsel . . .”
before Judge Evans could proceed in the cases once assigned to Bright. § 2701.03(A) (emphasis
added). Bright, as he concedes, could also have filed for a writ of prohibition. See Bright
Appellee Br. at 15. While this writ is extraordinary, the aggrieved attorneys in Stern, Maloney,
and Stokes all followed this procedure and were successful. According to the Supreme Court of
the United States, these “mechanisms of review, which are largely free of the harmful side-
effects inevitably associated with exposing judges to personal liability” are the correct way to
combat judicial wrongdoing. Forrester, 484 U.S. at 226–27. While the harm to Bright has been
great, there is no extraordinary reason to combat judicial misconduct through private litigation
here. And thus, there is no reason to deny absolute judicial immunity.
***
While we ultimately conclude that Judge Evans is entitled to absolute judicial immunity,
we cannot help but add our voices to the chorus of condemnation for his actions. By operating in
such an unreasonable manner, Judge Evans has brought dishonor on himself and his position.
The Ohio Supreme Court properly sanctioned him for this behavior. But we say again, absolute
judicial immunity is not designed to protect individual bad actors; rather it is in place to protect
judicial independence. In our legal system, there is often someone who loses his money, his
Nos. 13-3451/3907 Bright v. Gallia Cnty., Ohio et al. Page 13
liberty, or his life. This cannot be helped. But if that defeated party could turn around and file
suit against the judge or judges in his case, then the whole system would unravel as the threat of
suit crept into the judges’ minds. This conclusion does little to help Bright, who was wronged by
Judge Evans. It, however, preserves the independent judiciary. For the above reasons, we hold
that Judge Evans is entitled to absolute judicial immunity.
IV. CLAIMS AGAINST THE CORPORATION
Bright alleged two causes of action against the Corporation in the Amended Complaint:
(1) that the Corporation, “under color of law, deprived [him] of clearly established rights,
privileges, and immunities secured by the First and Fourteenth Amendment[s] to the United
States Constitution including but not limited to the right to free speech, . . . substantive due
process, procedural due process[,] and equal protection under the law”; and (2) that the
Corporation “terminated its contract of employment with [him] without good cause and in
violation of public policy.” R. 18 at 9, 10 (Am. Compl. at ¶¶ 47, 52) (Page ID #145, 146). The
district court dismissed Bright’s federal claims in their entirety under Rule 12(b)(6). R. 52 at 17
(D. Ct. Order Granting Corp. Mot. to Dismiss) (Page ID #535). Given that the breach-of-
contract claim presented an issue of first impression under Ohio law, the district court declined to
exercise supplemental jurisdiction over it and dismissed the claim without prejudice. Id. at 16
(Page ID #534). We AFFIRM, though partially on other grounds.
A. Standard of Review
We review de novo the district court’s dismissal of a claim pursuant to Rule 12(b)(6).
Seaton v. TripAdvisor LLC, 728 F.3d 592, 596 (6th Cir. 2013). “In reviewing a motion to
dismiss, we must accept non-conclusory allegations of fact in the complaint as true and
determine if the plaintiff has stated a plausible claim for relief.” Orton v. Johnny’s Lunch
Franchise, LLC, 668 F.3d 843, 846 (6th Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 677
(2009)). “Conclusory allegations or legal conclusions masquerading as factual allegations will
not suffice.” Eidson v. Tenn. Dep’t of Children’s Servs., 510 F.3d 631, 634 (6th Cir. 2007)
(citing Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005)). “Further, we are not confined to the
grounds relied on by the district court in affirming the court’s dismissal; rather, we may affirm
the district court’s dismissal of [the plaintiff’s] claims on any grounds . . . .” Robert N. Clemens
Nos. 13-3451/3907 Bright v. Gallia Cnty., Ohio et al. Page 14
Trust v. Morgan Stanley DW, Inc., 485 F.3d 840, 845 (6th Cir. 2007) (citing Hoffman v.
Comshare, Inc. (In re Comshare, Inc. Sec. Litig.), 183 F.3d 542, 548–49 (6th Cir. 1999)).
B. Section 1983 Claims
A plaintiff must make two showings to survive a motion to dismiss his § 1983 action:
one, “a plaintiff must allege that a defendant acted under color of state law”; and two, “a plaintiff
must allege that the defendant’s conduct deprived the plaintiff of rights secured under federal
law.” Handy-Clay v. City of Memphis, 695 F.3d 531, 539 (6th Cir. 2012) (citing Fritz v. Charter
Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010)). No party contends that state action is not
present, so we turn to each claim to determine whether the Corporation deprived Bright of a right
protected by federal law.
1. First Amendment Retaliation Claim
Bright first claims that the Corporation terminated its employment relationship with him
in retaliation for Bright engaging in speech protected by the First Amendment. For a retaliation
claim to survive a motion to dismiss, “[a] § 1983 plaintiff must plead factual allegations
sufficient to establish that ‘(1) the plaintiff engaged in constitutionally protected conduct; (2) an
adverse action was taken against the plaintiff that would deter a person of ordinary firmness from
continuing to engage in that conduct; and (3) the adverse action was motivated at least in part by
the plaintiff’s protected conduct.’” Handy-Clay, 695 F.3d at 539 (quoting Fritz, 592 F.3d at
723)). There can be little argument that losing one’s employment for filing motions critical of a
judge would deter an ordinary person from continuing to do so. See Thaddeus-X v. Blatter, 175
F.3d 378, 396 (6th Cir. 1999) (en banc). Whether Bright satisfied the first and third requirements
is a closer question, and we address them in reverse order.
a. Causal Connection
The district court dismissed Bright’s action against the Corporation after concluding that
Bright failed to allege facts that would support the third, causal-connection prong. We disagree
with this conclusion.
Nos. 13-3451/3907 Bright v. Gallia Cnty., Ohio et al. Page 15
Determining whether a causal connection has been adequately alleged in the complaint
requires a “two-part inquiry: A plaintiff must show both (1) that the adverse action was
proximately caused by an individual defendant’s acts, but also (2) that the individual taking those
acts was ‘motivated in substantial part by a desire to punish an individual for exercise of a
constitutional right.’” King v. Zamiara, 680 F.3d 686, 695 (6th Cir. 2012) (quoting Thaddeus-X,
175 F.3d at 386). Here, there is no debate that the Corporation caused Bright’s employment to
be terminated. The question is whether Bright alleged facts “that would allow a jury to find that
[the Corporation] was motivated at least in part by” Bright’s speech. Paige v. Coyner, 614 F.3d
273, 282 (6th Cir. 2010).1 In prior cases, we have found two factors to be especially helpful in
determining whether motive existed: (1) whether the defendant knew of the plaintiff’s protected
conduct; and (2) whether “the chronology of events supports an inference of causation,” such as
temporal proximity between the speech and the adverse action. Handy-Clay, 695 F.3d at 545–
46; see also King, 680 F.3d at 695; Paige, 614 F.3d at 282–83.
Clearly, Bright alleged that the Corporation knew of his conduct. See R. 18 at 7, 8–9
(Am. Compl. at ¶¶ 32, 39, 42) (Page ID #143–145). He also implicitly noted a short timespan
between filing the motion and being terminated. See id. at 6–7 (Am. Compl. at ¶¶ 23, 26, 32)
(Page ID #142–43). Whether these facts, along with Bright’s bare allegation that “[the
Corporation] singled out [Bright] in retaliation for exercising his freedom of speech,” is enough
to raise a plausible inference of motive is a close call. Id. at 9 (Am. Compl. at ¶ 42) (Page ID
#145). The district court found that Bright’s complaint provided “one very compelling rationale”
for the Corporation’s termination of Bright’s employment: ‘“because he could not practice
before Judge Evans.’” R. 52 at 12 (D. Ct. Order Granting Corp. Mot. to Dismiss) (Page ID
#530) (quoting R. 18 at 7 (Am. Compl. at ¶ 32) (Page ID #143)).2 But the close temporal
1
The burden of persuasion on this prong then shifts to the Corporation, and the Corporation “is of course
free to rebut these allegations on summary judgment or at trial by establishing that [it] was motivated by any number
of nonretaliatory goals.” Paige, 614 F.3d at 283; see also Thaddeus-X, 175 F.3d at 399 (recognizing burden-shifting
obligation of plaintiff at summary-judgment stage). When evaluating the sufficiency of a complaint, however, the
district court should not be weighing the strength of competing inferences. See Paige, 614 F.3d at 283. In general,
“[a] defendant’s motivation for taking action against the plaintiff is usually a matter best suited for the jury.” Id. at
282 (citing Harris v. Bornhorst, 513 F.3d 503, 519–20 (6th Cir. 2008)).
2
The district court read this statement as an admission by Bright that he was fired because he could not
fulfill his duties, a nonretaliatory reason. There is another possible inference, however, i.e., that the Corporation’s
proffered reason was mere pretext. At the motion-to-dismiss stage, we must read Bright’s Amended Complaint to
state the latter.
Nos. 13-3451/3907 Bright v. Gallia Cnty., Ohio et al. Page 16
proximity and the Corporation’s knowledge of Bright’s motion present another plausible reason
for the Corporation’s termination of Bright’s employment, namely retaliation. On the
information presently before the court, the Corporation’s proffered rationale does appear
stronger, but the district court should not have been judging the relative strength of the
competing inferences. If we accept Bright’s allegations as true and draw all inferences in his
favor, we conclude that the Amended Complaint states enough facts to require the Corporation to
present evidence at summary judgment to rebut the retaliatory inference. Thus, the district court
erred in dismissing Bright’s First Amendment retaliation claim against the Corporation for
failing to state a causal connection.
b. Protected Interest
Carrying the burden of persuasion on the causal-connection prong, by itself, is not
enough to overcome a motion to dismiss. The plaintiff must also show that the activity in which
he engaged is protected by the First Amendment. Problematically, the district court never
addressed whether Bright’s speech was protected. If we were writing on a clean slate, we would
be inclined to hold that Bright has also carried this burden, but Mezibov v. Allen, 411 F.3d 712(6th Cir. 2005), a prior panel’s published decision, compels us to affirm the dismissal of Bright’s
claim.
In Mezibov, the panel faced the question of “[w]hether an attorney can claim First
Amendment protection on his own behalf for his filing motions and making courtroom
statements on behalf of his client,” id. at 717, and concluded that an attorney could not, id. at
720–21. The attorney in that case “filed three motions seeking to dismiss the indictment and
disqualify [the prosecutor] on the basis that he had engaged in improper conduct.” Id. at 715.
Here, Bright filed a motion with Judge Evans criticizing the judge’s handling of proceedings
before the court. In both cases, the lawyer’s arguments and motions contained core political
speech, given that they involved criticism of government officials. In both cases, the lawyers’
speech came from inside the courtroom and in service of a client. We see no valid distinction in
fact or law between Mezibov and this case. Mezibov is binding precedent in this circuit and can
be overturned only by a decision of the en banc court or the United States Supreme Court.
Darrah v. City of Oak Park, 255 F.3d 301, 309–10 (6th Cir. 2001). Therefore, with great
Nos. 13-3451/3907 Bright v. Gallia Cnty., Ohio et al. Page 17
reluctance, we hold that, at this time, Mezibov prevents us from recognizing Bright’s filing of his
motion or its contents as protected conduct. As a result, Bright’s complaint is deficient, and the
district court’s dismissal of his claim is AFFIRMED.
***
Before turning to Bright’s other claims, a few words on Mezibov and the law-of-the-
circuit doctrine are appropriate. The panel’s opinion in Mezibov deployed overly broad, general
language and drew several controversial conclusions. For instance, the majority opined that
“[t]he courtroom is a nonpublic forum where the First Amendment rights of everyone (attorneys
included) are at their constitutional nadir,” 411 F.3d at 718, and that “an attorney’s job in the
courtroom, although it necessarily includes speech, is fundamentally inconsistent with the basic
concept of ‘free’ speech,” id. at 719. These statements and others drew an emphatic dissent, see
id. at 723–26 (Moore, J., dissenting), and judges in subsequent cases have not been shy in
expressing their displeasure with the decision, see, e.g., Lewter v. Kannensohn, 159 F. App’x
641, 648 (6th Cir. 2005) (Keith, J., dissenting) (stating that Mezibov’s protected-interest holding
was “an unwarranted extension of prior law”). Nevertheless, the majority’s view carried the day
and remains binding upon subsequent panels, under the law-of-the-circuit doctrine, until
overturned by this court en banc or by the United States Supreme Court. Darrah, 255 F.3d at309–10.
Whether we agree with the merits of these past decisions or not, it is essential that we
hold true to this simple rule. For generations, the precedential system has been the best method
of ensuring consistent application of the law even as this court predominantly renders decisions
in three-judge panels. If a panel can discard prior decisions with which it disagrees, this system
unravels; each panel becomes a court unto itself; and the parties will have no way of predicting
the state of the law, their rights, or their obligations. There are times when the law-of-the-circuit
doctrine does not apply, such as when the related law-of-the-case doctrine is relevant, but we
would be foolish to diminish the doctrine or give panels the ability to override decisions of
another panel with which they disagree.
Nos. 13-3451/3907 Bright v. Gallia Cnty., Ohio et al. Page 18
2. Equal Protection Claim
As for Bright’s Equal Protection claim, he pleads himself out of court by citing the
Corporation’s proffered explanation for terminating his employment. The Supreme Court has
recognized that the Equal Protection Clause protects ‘“class[es] of one”’ from irrational
government action. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Under ordinary
rational-basis review, however, there is no motive inquiry; a plaintiff has “the burden . . . to
negative ‘any reasonably conceivable state of facts that could provide a rational basis for the
classification.’” Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001) (quoting
FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993)). Here, Bright has not carried that
burden because his suggestion that the Corporation fired him due to his inability to appear before
Judge Evans and, thus, to meet the job’s requirements, is a rational reason for the Corporation to
terminate his employment. Whether that reason was the actual motivation behind the
Corporation’s action is not relevant to traditional rational-basis review. See Heller v. Doe, 509
U.S. 312, 319–20 (1993) (noting that a legislature can offer post hoc justifications for its
actions). By offering a rational justification for the Corporation’s actions in his Amended
Complaint, Bright has defeated his own Equal Protection claim. Therefore, we AFFIRM the
district court’s dismissal of this claim.
3. Procedural-Due-Process Claim
Bright next argues that the Corporation violated his procedural-due-process rights under
the Fourteenth Amendment. To survive a motion to dismiss this claim, Bright must allege facts
showing (1) that he was deprived of a constitutionally recognized liberty or property interest; and
(2) that he did not receive the required process. Leary v. Daeschner, 228 F.3d 729, 741–42 (6th
Cir. 2000) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 541 (1985)). In his
Amended Complaint, Bright alleged that the Corporation deprived him of three constitutionally
recognized interests without any process: (1) a property interest in his continued employment as
a public defender; (2) a property interest in his right to practice law before the Court of Common
Pleas; and (3) a liberty interest in his good reputation. See R. 18 at 8–9 (Am. Compl. at ¶¶ 39,
43–47) (Page ID #144–45); see also Bright Appellant Br. at 15. The district court found that
Nos. 13-3451/3907 Bright v. Gallia Cnty., Ohio et al. Page 19
none of these interests were entitled to protection. We agree and, therefore, AFFIRM the
district court’s decision.
a. Property Interests
“Property interests . . . are not created by the Constitution. Rather, they are created and
their dimensions are defined by existing rules or understandings that stem from an independent
source such as state law—rules or understandings that secure certain benefits and that support
claims of entitlement to those benefits.” Board of Regents of State Colls. v. Roth, 408 U.S. 564,
577 (1972).
Bright first claimed that he has a property interest in continued employment as a public
defender and cites Ohio Revised Code § 120.14 as the relevant source of law.3 See Bright
Appellant Br. at 15. Bright is mistaken. Section 120.14(A)(1) states that “Except as provided in
division (A)(2) of this section, the county public defender commission shall appoint the county
public defender and may remove him from office only for good cause.” Subsection (A)(2)
provides that “[i]f a county public defender commission contracts with . . . [a] nonprofit
organization[] . . . to provide all of the services that the county public defender is required or
permitted to provide by this chapter, . . . the commission shall not appoint a county public
defender.” Because the Commission chose to contract with the Corporation, see R. 18-1 at 1–4
(Comm’n/Corp. Contract) (Page ID #149–152), § 120.14(A)(1) is not relevant. See also R. 18-1
at 2 (Comm’n/Corp. Contract) (Page ID #150) (“[The Corporation] will utilize the service of
attorneys as independent contractors.”). Section 120.14(F)(3) does state that “any nonprofit
organization that contracts with a county public defender commission . . . shall . . . [c]omply with
all statutory duties and other laws applicable to county public defenders.” But that directive
suggests only that nonprofit organizations must fulfill the duties of the county public defender
enumerated in § 120.15(B), which, importantly, does not mention standards for dismissal or
contain a job-security provision. Furthermore, § 120.14(A)(1) pertains to the duties and powers
3
The district court rejected this argument on the grounds that Bright failed to plead that he had been
prejudiced by a lack of process. See R. 52 at 14 (D. Ct. Order Granting Corp. Mot. to Dismiss) (Page ID #532)
(citing Graham v. Mukasey, 519 F.3d 546, 549–50 (6th Cir. 2008); Garza-Moreno v. Gonzales, 489 F.3d 239, 241–
42 (6th Cir. 2007)). Both of these cases involved aliens being deported for immigration offenses, and the due-
process considerations are different in that context than those at issue in this case. Because we affirm the district
court for a different reason, we express no views on whether these cases have any purchase here.
Nos. 13-3451/3907 Bright v. Gallia Cnty., Ohio et al. Page 20
of the Commission, not the Corporation or a county public defender, and thus, it is not
“applicable to” a county public defender. As a result, § 120.14 does not give Bright a property
interest in his continued employment. His Amended Complaint offers no other source of law
that establishes a property interest in his continued employment, and therefore, we AFFIRM the
district court’s decision to dismiss this claim.
Bright’s second property-interest-based claim was that he has a “protected property
interest in his right to practice law before the Gallia County Court of Common Pleas.” Bright
Appellant Br. at 16. The district court rejected this claim, finding that the Corporation could not
deprive him of this right because only the Ohio Supreme Court has the power to restrict an
attorney’s ability to practice law. See R. 52 at 13–14 (D. Ct. Order Granting Corp. Mot. to
Dismiss) (Page ID #531–32). Whether the Corporation had the legal power to prevent Bright
from practicing law is not the issue, however; the important questions are (1) whether Bright had
a right to practice before the Court of Common Pleas in the first place, and (2) whether the
Corporation actually prevented Bright from practicing in that court. Assuming that the answer to
the first question is yes, the answer to the second one, at least according to Bright’s Amended
Complaint, is no. Bright alleged that the Corporation terminated his employment as a public
defender. R. 18 at 8 (Am. Compl. at ¶ 39) (Page ID #144). But nowhere in the Amended
Complaint does Bright plead facts suggesting that the Corporation took any other action to
prevent Bright from working as an attorney before Judge Evans or another visiting judge in the
Gallia County Court of Common Pleas. Absent such a statement, Bright has not adequately
pleaded facts showing that the Corporation deprived him of a property interest, even assuming he
has one in being an attorney appearing before the Court of Common Pleas in Gallia County.
Thus, we AFFIRM the district court’s dismissal of this second property-interest-based claim.
b. Liberty Interest
Bright also alleged that he has a liberty interest in his reputation, which the Corporation
purportedly damaged without affording him an opportunity to clear his name. The district court
never specifically addressed this claim when dismissing Bright’s claims against the Corporation
in total. See R. 52 at 13–14 (D. Ct. Order Granting Corp. Mot. to Dismiss) (Page ID #531–32)
(dismissing Bright’s procedural-due-process claims without addressing his liberty-interest
Nos. 13-3451/3907 Bright v. Gallia Cnty., Ohio et al. Page 21
argument). This oversight might be because Bright never alleged that the Corporation made any
statement, let alone a public, defamatory one, regarding Bright and his termination. Absent such
an allegation, Bright has failed to state a valid claim. See Quinn v. Shirey, 293 F.3d 315, 320
(6th Cir. 2002) (citing Brown v. City of Niota, 214 F.3d 722–23 (6th Cir. 2000)). Thus, we
AFFIRM the dismissal of this claim.
4. Substantive-Due-Process Claim
Bright asserted two substantive-due-process claims: that the Corporation infringed upon
his fundamental rights to the freedom of speech and to the practice of law. The district court
succinctly stated that “[the] Corporation did not violate either right” and, thus, dismissed these
claims. R. 52 at 15 (D. Ct. Order Granting Corp. Mot. to Dismiss) (Page ID #533). For the
following reasons, we AFFIRM these dismissals.
First, from his briefing, it appears that Bright is arguing that the Corporation’s
termination of Bright, or its acquiescence in Judge Evans’s actions, represents a violation of
Bright’s fundamental right to criticize the government. It is rather difficult to discern how these
arguments differ from his retaliation claim discussed above and his vicarious-liability claim
addressed below. The cases that Bright cites in his briefing do not support a third, unaddressed
claim, and to the extent that Bright argues that his position as an attorney affords him greater
First Amendment rights, Mezibov holds the opposite. See 411 F.3d at 719 (“[I]n finding no First
Amendment rights on the part of the attorney participating in a judicial proceeding, we are
simply re-affirming the commonsense principle that attorneys do not possess ‘any right in the
first amendment that is not the common legacy of every citizen.’” (quoting Ukrainian-American
Bar Ass’n v. Baker, 893 F.2d 1374, 1381 (D.C. Cir. 1990))). Thus, we see no reason to hold that
the district court erred in dismissing this part of Bright’s substantive-due-process claim.
Bright’s second substantive-due-process argument gets further, but the district court did
not err in rejecting it either. Bright claims that the Corporation violated his “substantive due
process right to pursue his career as a public defender.” Bright Appellant Br. at 20. In part, he is
correct: “This Court has long held that the freedom to choose and pursue a career, to engage in
any of the common occupations of life, qualifies as a liberty interest which may not be arbitrarily
denied by the State.” Parate v. Isibor, 868 F.2d 821, 831 (6th Cir. 1989) (internal quotation
Nos. 13-3451/3907 Bright v. Gallia Cnty., Ohio et al. Page 22
marks omitted). More specifically, the Supreme Court has stated that “[a] State cannot exclude a
person from the practice of law or from any other occupation in a manner or for reasons that
contravene the Due Process or Equal Protection Clause[s] of the Fourteenth Amendment.”
Schware v. Board of Bar Exam. of N. Mex., 353 U.S. 232, 238–39 (1957) (citing Dent v. West
Virginia, 129 U.S. 114 (1889)). However, these two holdings do not mean that Bright has a
substantive-due-process right to practice law as a Gallia County Public Defender. The
Corporation’s decision to terminate Bright does not prevent him from practicing law in Gallia
County or working as a defense attorney; it merely prevents him from doing so as an
independent contractor for the Corporation. Now, other legal provisions might render his
termination a violation of the law, but the substantive aspect of the Due Process Clause is not one
of them. Thus, we AFFIRM the dismissal of this claim.
5. Collusion with Judge Evans
Bright’s final § 1983 claim is that the Corporation directly participated in Judge Evans’s
alleged violation of Bright’s federal rights. The district court rejected this claim, finding that the
Corporation had no supervisory relationship over Judge Evans. R. 52 at 16 (D. Ct. Order
Granting Corp. Mot. to Dismiss) (Page ID #534). In doing so, the district court overstated the
caselaw, given that a supervisory relationship is not always required to state a valid claim. See
Flagg v. City of Detroit, 715 F.3d 165, 174 (6th Cir. 2013) (“[F]or constitutional violations under
§ 1983, a plaintiff must demonstrate that the actor ‘directly participated’ in the alleged
misconduct, at least by encouraging, implicitly authorizing, approving or knowingly acquiescing
in the misconduct, if not carrying it out himself.”). Regardless, the bigger problem for Bright is
that, under Mezibov, his motion and arguments to Judge Evans are not protected conduct. Thus,
there was no violation of federal rights for the Corporation to authorize, encourage, or approve.
As a result, Bright cannot state a valid claim, and we AFFIRM the district court’s dismissal of
this claim.
C. Breach-of-Contract Claim
Bright also asks us to order the district court to exercise supplemental jurisdiction over
Bright’s state-law breach-of-contract claim. In the original proceedings, after dismissing all
federal claims against the Corporation, the district court declined to exercise jurisdiction over
Nos. 13-3451/3907 Bright v. Gallia Cnty., Ohio et al. Page 23
Bright’s state-law claims because they presented “a question of first impression under Ohio Law
. . . .” R. 52 at 16 (D. Ct. Order Granting Corp. Mot. to Dismiss) (Page ID #534) (citing 28
U.S.C. § 1367(c)). “We review a district court’s refusal to exercise supplemental jurisdiction for
abuse of discretion.” Habich v. City of Dearborn, 331 F.3d 524, 535 (6th Cir. 2003) (citing
Hankins v. The Gap, Inc., 84 F.3d 797, 802 (6th Cir. 1996)). In his briefing, Bright offers no
argument as to why the district court’s refusal constitutes an abuse of discretion, and thus, we
AFFIRM the dismissal without prejudice of Bright’s state-law claims against the Corporation.
V. CLAIMS AGAINST THE BOARD AND THE COMMISSION
In the Amended Complaint, Bright also alleged that the Board and the Commission,
“under color of law, deprived [him] of clearly established rights, privileges, and immunities
secured by the First and Fourteenth Amendment[s] to the United States Constitution . . . .” R. 18
at 9 (Am. Compl. at ¶ 47) (Page ID #145). Specifically, Bright claimed that the Board and the
Commission accomplished this deprivation by “knowingly failing to protect . . . Bright from the
clearly illegal actions by . . . [the Corporation] and Judge Evans . . . .” Id. at 8 (Am. Compl. at
¶ 40) (Page ID #144). The Board and the Commission, according to Bright, should have
“challenge[d] the actions of Judge Evans terminating [Bright] as a public defender” and should
have “support[ed] . . . Bright by, for example, requesting visiting judges or assigning Bright to
misdemeanor cases where he would not be arguing in front of Judge Evans.” Id. at 7 (Am.
Compl. at ¶ 31) (Page ID #143). Bright alleged that, by not doing so, the Board and the
Commission “were irrational and wholly arbitrary” and “singled out [Bright] in retaliation for
exercising his freedom of speech.” Id. at 9 (Am. Compl. at ¶¶ 41, 42) (Page ID #145).
The district court rejected these arguments, finding that Bright had failed to plead
sufficient facts to state a claim for relief based on the Board’s or the Commission’s direct actions
against Bright. R. 53 at 4 (D. Ct. Order Granting Bd. & Comm’n Mot. to Dismiss) (Page ID
#539). Additionally, the district court found that Bright failed to state a sufficient claim that the
Board or Commission were liable under a Monell theory based on the actions of the Corporation
or Judge Evans. For the reasons below, we AFFIRM the district court’s dismissal.
Nos. 13-3451/3907 Bright v. Gallia Cnty., Ohio et al. Page 24
A. Direct Infringement
In the Amended Complaint, Bright’s allegations that the Board and the Commission
directly violated his federal rights were exceptionally thin. The district court dismissed them
without much discussion because Bright did not aver sufficient facts that would support a finding
that the Board or Commission took any direct action against Bright. On appeal, Bright appears
to have abandoned this claim, having offered no argument in support of his original allegations.
Thus, it is forfeited. Patel v. Gonzales, 470 F.3d 216, 219 (6th Cir. 2006).
B. Monell Liability
In his briefing, Bright focuses on the district court’s decision to dismiss his § 1983 claims
attributing liability to the Board and the Commission for the actions of the Corporation and
Judge Evans. In particular, the district court concluded that Bright failed to allege sufficient
facts showing that the Corporation violated Bright’s rights, as discussed above, or that either the
Board or the Commission had a policy or custom that Judge Evans followed, which caused
Bright’s injuries. R. 53 at 6 (D. Ct. Order Granting Bd. & Comm’n Mot. to Dismiss) (Page ID
#541). Based on the analysis above and Bright’s Amended Complaint, we AFFIRM the
dismissal of Bright’s claims against the Board and the Commission.
“To establish municipal liability pursuant to § 1983, a plaintiff must allege an
unconstitutional action that ‘implements or executes a policy statement, ordinance, regulation, or
decision officially adopted and promulgated by that body’s officers’ or a ‘constitutional
deprivation[] visited pursuant to governmental custom even though such a custom has not
received formal approval through the body’s official decisionmaking channels.’” Shamaeizadeh
v. Cunigan, 338 F.3d 535, 556 (6th Cir. 2003) (quoting Monell, 436 U.S. at 690–91)) (alteration
in original). “[A] municipality cannot be held liable solely because it employs a tortfeasor—or,
in other words, a municipality cannot be held liable under § 1983 on a respondeat superior
theory.” Monell, 436 U.S. at 691. Accordingly, to survive a motion to dismiss under Rule
12(b)(6), a plaintiff must adequately plead (1) that a violation of a federal right took place,
(2) that the defendants acted under color of state law, and (3) that a municipality’s policy or
custom caused that violation to happen. Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir. 2008).
Nos. 13-3451/3907 Bright v. Gallia Cnty., Ohio et al. Page 25
In this case, Bright pleaded that the Board and the Commission had a policy or custom of
deferring to Judge Evans’s decisions regarding the appointment of public defenders, and thus,
because Judge Evans removed Bright from all cases pending before his court, the Corporation—
the municipality’s alleged policymaker—terminated Bright’s employment. See R. 18 at 8 (Am.
Compl. at ¶ 39) (Page ID #144). The problem is that Bright failed to plead sufficient facts that
would support a finding that the Corporation violated federal law. Thus, it does not matter
whether that action was taken pursuant to a policy or custom adopted by the Board or the
Commission. Accordingly, we AFFIRM the dismissal of Bright’s claims against the Board and
the Commission.
VI. CONCLUSION
For the reasons stated above, in case number 13-3451, we REVERSE the district court’s
decision denying Judge Evans absolute judicial immunity and REMAND with instructions to
dismiss the case against Judge Evans. In case number 13-3907, we AFFIRM the dismissal with
prejudice of Bright’s federal claims against the Board, the Commission, and the Corporation, and
we AFFIRM the dismissal without prejudice of Bright’s state-law claims against the
Corporation.