Thomas Embry v. Liza Kotlarsic ( 2023 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0303n.06
No. 22-4027
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Jun 30, 2023
) DEBORAH S. HUNT, Clerk
THOMAS D. EMBRY,
)
Plaintiff-Appellant, )
ON APPEAL FROM THE
)
v. UNITED STATES DISTRICT
)
COURT FOR THE
)
LIZA KOTLARSIC, Clerk of Court, City of Fairfield ) SOUTHERN DISTRICT OF
Municipal Court, OHIO
)
Defendant-Appellee. )
OPINION
)
Before: GILMAN, LARSEN, and NALBANDIAN, Circuit Judges.
LARSEN, Circuit Judge. Thomas Embry brought a 42 U.S.C. § 1983 claim against the
clerk of the Fairfield, Ohio Municipal Court for failing to return the entirety of a bond he posted
on behalf of a third party. The district court found that sovereign immunity barred Embry’s claim.
We AFFIRM.
I.
Jessica Ann Taylor was convicted of attempted falsification in Fairfield Municipal Court
(Municipal Court). She was ordered to pay a fine of $500, as well as $900 in probation fees and
$145 in other fees and costs, for a total of $1,545. When Taylor failed to pay the debt, she was
held on criminal contempt charges. Taylor’s friend, Thomas Embry, posted a $3,500 bond, as well
as a $25 fee, with the Municipal Court to free Taylor from confinement. The Municipal Court
ultimately dismissed Taylor’s contempt charge but ordered her to pay an additional dismissal fee
of $46. After Taylor was released, the Municipal Court returned $1,934 to Embry, deducting the
No. 22-4027, Embry v. Kotlarsic
$46 fee to dismiss Taylor’s claim as well as the $1,545 in fines and costs incurred for Taylor’s
falsification charge from the $3,525 Embry paid the Municipal Court.
Embry then brought this lawsuit under 42 U.S.C. § 1983 in federal district court. His
complaint sought “[c]ompensatory damages” from Liza Kotlarsic, the clerk of the Municipal
Court, for allegedly depriving him of $3,525, in violation of the Fourteenth Amendment. Kotlarsic
moved to dismiss. The district court granted the motion, holding that sovereign immunity barred
Embry’s claim. Embry appeals.
II.
We review the district court’s decision on sovereign immunity de novo. See S & M Brands,
Inc. v. Cooper, 527 F.3d 500, 507 (6th Cir. 2008). Embry sued Kotlarsic in her official capacity,
so his lawsuit is “in all respects other than name, to be treated as a suit against the entity”: the
Municipal Court. Kentucky v. Graham, 473 U.S. 159, 166 (1985). We agree with the district court
that sovereign immunity protects the Municipal Court from suit.
Sovereign immunity applies to “lawsuits against the State or ‘an arm of the State.’”
Laborers’ Int’l Union of N. Am., Loc. 860 v. Neff, 29 F.4th 325, 334 (6th Cir. 2022) (quoting Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977)). To determine whether
the Municipal Court is an arm of the State, we consider (1) the State of Ohio’s “potential liability”
for a judgment against the Municipal Court; (2) the way state law describes the Municipal Court
and “the degree of state control and veto power over the [Municipal Court’s] actions”; (3) whether
state officials control membership on the Municipal Court; and (4) “the extent to which the
[Municipal] Court’s ‘functions fall within the traditional purview of state or local government.’”
Id. (quoting Ernst v. Rising, 427 F.3d 351, 359 (6th Cir. 2005) (en banc)).
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The parties do not dispute that the municipality—not the State—would have to satisfy any
judgment in Embry’s favor. This factor helps Embry, but it is not dispositive. Neff, 29 F.4th at
330; see also Ward v. City of Norwalk, 640 F. App’x 462, 465 (6th Cir. 2016) (concluding that the
Norwalk Municipal Court was entitled to sovereign immunity even though its municipal
corporation would pay the judgment). And each of the other three factors indicates that the
Municipal Court is an arm of the State. First, regarding state control, we noted in Neff that the
Ohio Constitution created a “unified state judicial system,” 29 F.4th at 330 (citation omitted),
vesting the judicial power of the state “in a supreme court, courts of appeals . . . and such other”
inferior courts to be established by law, Ohio Const. art. IV, § 1, including the Municipal Court,
see Ohio Rev. Code § 1901.01(A). Ohio municipal courts are thus “state courts” under the Ohio
Constitution. Second, state officials control membership on the court—judicial vacancies in the
municipal courts are filled by the Ohio Supreme Court, Ohio Rev. Code § 1901.121, and the state
legislature can remove state judges, Ohio Const. art. IV, § 17; cf. Neff, 29 F.4th at 331. And finally,
“state courts quintessentially fall within the traditional purview of state government” because they
serve as the State’s “adjudicative voice.” Neff, 29 F.4th at 331 (internal quotation marks and
citations omitted). As we recently concluded with respect to juvenile courts in Ohio: “If any entity
qualifies as an arm of the State, a state court does.” Id.; see also Hohenberg v. Shelby County, 68
F.4th 336, 343 (6th Cir. 2023) (concluding that a Tennessee environmental court was not a
“person” subject to suit under 42 U.S.C. § 1983, in part because it would be “difficult to understand
why § 1983 would create a right to sue an entity that could always assert immunity from suit”).
Like the Ohio courts at issue in Neff and Norwalk, we conclude that the Fairfield Municipal Court
is an arm of the state.
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Embry makes a final attempt to evade sovereign immunity by arguing that he is not seeking
damages from the Municipal Court, but rather the return of his bail money. But Embry’s
complaint—drafted by counsel—unambiguously requests “compensatory damages in an amount
to be determined at trial” based on the “actual damage” he suffered at the hands of the Municipal
Court. And, as the district court rightly noted, “[s]uits seeking compensatory monetary damages
are the exact suits barred by Eleventh Amendment immunity.” Embry v. Kotlarisc, No. 1:22-
CV‑006, 2022 WL 17327290, at *3 (S.D. Ohio Nov. 29, 2022); see also Ernst, 427 F.3d at 358(“[Sovereign] immunity . . . applies to actions against state officials sued in their official capacity
for money damages.”); Cooper, 527 F.3d at 508 (“The Ex parte Young exception does
not . . . extend to any retroactive relief.”). Only in his sur-reply in the district court did Embry
attempt to argue that he was seeking some other form of relief. The district court refused to permit
Embry effectively to “amend his Complaint through his memorandum in opposition to a motion
to dismiss.” Embry, 2022 WL 17327290, at *3 (quoting Grant v. Montgomery County, No. 3:19-
cv-80, 2021 WL 1192568, at *5 (S.D. Ohio Mar. 30, 2021)). That was not error. So it was also
not error for the district court to dismiss Embry’s suit on the ground that it is barred by sovereign
immunity.
***
We AFFIRM.
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