one three four one five seven daily services elsie versus tracy valentino at our arguments not to exceed fifteen minutes for side mr price for talent daily services between november of two thousand and nine in december of two thousand and eleven as a result of the a police actions the trial court granted a pelleas motion for judgment on the pleadings based on qualified immunity political standard for review of review here is the no vote in the factual allegations of the complaint must be accepted as true in construed in the light most favorable to daily services despite the alternative version that was presented in a pelleas brief where they talked about mistakes missteps in clerical errors specifically the trial court held that because of uncertainty regarding the application of the peerage doctrine arising from the circuits case law there were services failed to show and indeed could not show that a pelleas actions violated clearly established constitutional rights now though pair it was decided over thirty years ago the trial court's decision was the first one in this circuit to apply the period rock tiring to the issue of qualified immunity in so doing the trial court committed revers regarding that circuits application apparently precluded the plaintiff from showing that reasonable defendants would know that their conduct violated clearly established constitutional rights now the first circuit subsequently vacated in withdrew that opinion and issued a new in bank decision sandhu around m o two in a concurrence on the m on bank decision one of the members of the original plan will actually explained that uncertainty whether or not there was a violation of a constitutional right second of all was that right clearly established such that reasonable officials in the appellate position would know that their actions would violate that clearly establish get right to the question of was there a violation of the constitutional right here in your view yes well and i guess i would still go i think you need to decide whether period applies as far as qualified immunity yes you begin with was are a violation of due process procedural due process i believe there was and then second you would analyze the reasonableness of helen's a police conduct in light of how clearly established it was thought of parrot applies we would prefer him there ground the district court judgement so you don't want us to apply here correct tell us why why p r doesn't apply i can i can move to that  in order for parent to apply under zero mom and it's progeny the filing of the nine judgments in liens against daily services property would have to satisfy the following test first the deprivations were police actions need to satisfy all three of these requirements they feel the satisfy any of and indeed of powys admit that their actions violated the very state procedures that were  acted to ensure the daily services would be accorded due process before any deprivation occurred are you challenging the established state procedures themselves not the statutes or the regulations adopted  pursuant to those statutes those are designed precisely to ensure the due process is a court and here a public is argue that the fact that they disregarded those regulations and statutes is their very salvation  they claim that since they violated the procedures designed by state law to ensure the daily service received due process their actions were both brand on and on authorize the us they maintain that if the state adopts procedures to provide due process and the state officials then intentionally disregard those procedures those actions are random and unpredictable  or to ascertain predictability or do we look at the actions of the state officials of the individual defendants here or do we look at the from the perspective of the state of ohio and whether it could determine who predictability i think courts in this circuit have adopted sort of both approaches i know in murtagh they talked about the fact that the the particular municipal employees would how could it be unpredictable to them were the ones that did it i don't think that is the proper analysis i think when you when you dig into parrot and look at what it's talking about it does talk about random and unpredictable actions by state employees such that the the state you know couldn't do anything about it and i think what the supreme court talking about wants to talk about the state i think it's talking about responsible state officials senior state officials the state officials that we would expect to provide the exact new process ensure the due process be protected that would ensure the lower level employees are flowing constitutional regular you know the the the constitution they those senior state officials in parrot you know they can't from their perspective it was unpredictable that a particular prison guard might throw out somebody's property  and predictable here in the same way i think because precisely because these are the senior government officials when this court decided more tech it said you need to look at all of the circumstances surrounding the deprivation and i think those circumstances involve who the police are what they love or are they prison guards like we haven't parent in so many of the other cases cited or are they more like the hearing officers where this court is said parent doesn't apply when the hearing officer refused to follow state law or state procedures regarding the conduct of the hearing the court says they're not entitled to parents protection reached the same conclusion in wedgewood him or him where they were and as well as were they were dealing with senior state officials who were in a position both to affect the deprivation and also had the responsibility to ensure the due process protections were provided do we have the same sort of question will we get to the words random and authorize so myself of the record these individual defendants were not authorize to file these various liens and judgments after the completion of the notice an opportunity to be heard the assessment process an opportunity for there to be an appeal at that point presumably they would be authorized to to file cleans and judgments but they file them at different points along the way prematurely so i would say just prematurely i do think they were authorized i mean we're talking about senior level officials who not only had the authority to do it to direct that they be filed but that's how it came to be filed by either direction it again is just like the the board in wedgewood where the state all said before you can pass this owning regulation you have to provide notice and here the board didn't ok they i guess you view is the authorization comes from the fact that a senior official apparently gave the go ahead as opposed to there being authority in the regulation is one but where they have this court has specifically noted that the state officials didn't follow state law they ignored so in effect they were an authorised to take the action they did but they did so anyway and again i think if you read through the cases closely you see that the distinction involves a number of things one of course is the position of the person who's acting and you've been covering these people senior officials why are they  well as noted in the complaint we are dealing with the chief financial officer the chief customer service officer i believe his exact title as well as an assistant general counsel are the three named and then there are also john doe defendants because again this case is at the pleading stage we haven't had any discovery to discover who if anyone else may have participated in this what individuals who were named were you know the file core of the desire to fry the person who you know may have done the actual administrate a filing that was following the direction again the people that are named as defendants in this case or more analogous to you know the the hearing officers in the context of the prison cases where the court did find parrott did not apply the hearing officers as opposed to the prison guards were of course following perry the court has announced a number of decisions over the years that said prison guards you know if they take these actions whether they do so intentionally or  should have issued it was in an emergency it was a mistake in the court the court ultimately decided that that did not give rise to one nine hundred eighty three liability a single action a single mistake but here you have officials who not just conduct would have one mistake but then they proceed to to repeat it again and again and again gee oftentimes repeating it literally within days of getting an order from the court of common pleas vacating one  some sort of pre deprivation due process and you're not making any claim as to inadequate ohio's post deprivation procedures there's that in your view not an issue that only comes into play if the court were to find that this wasn't random unauthorized then the the issue becomes whether the post deprivation remedies are adequate but that's not something you can the thing your complaint is  it is not ok although i will say the complaint describes a number of attempts to get judgments vacated that were not didn't provide a remedy thank you  one thing that we agree on is that the case here centers on the proper application of parent to the facts as alleged in daily services complaint and in particular to what extent do  daily services have to show plead and show the inadequacy of available state law remedies in as we argued blown as it is we argued here they can't make that showing because not only did they have adequate state daily services have adequate state law remedies they took full advantage of those state law remedies and was able to address the violations of ohio law that are described in the complaint  for them to have deprivation remedies under under parent we believe your honor yes that is enough as long as they have adequate post operation remedies which we believe that they do you say under p authorized conduct but the conduct is subject to the unfettered discretion of a state official that it's really standardless so in that situation you must provide some type of procedural due process there some type of deprivation process in order to satisfy the requirements of procedural due process here we don't have instances of unfettered discretion we have specific requirements of ohio law w with regard to assessments and notices of assessment in judgments with regard to delinquent workers compensation premiums that are very clear and they were followed i mean there are the complaint in this case concerns really five sets of judgments and liens four which relate to the allegation that daily services is the successor in interest to another company i force which failed to pay roughly three and a half million dollars in workers compensation premiums with regard to those assessments judgments and  liens the allegations are and they were able to establish in several those instances that the bureau workers compensation did not comply with the established state procedure you know doesn't make any difference that this figure to comply happened again and again and again three four five times i think there were nine judgments and liens thereabouts filed if you think at some point that should be held to get to the state or the defendant well there is a keystone kops quality to what the bureau did i would i admitted to at the they didn't take action they did they did challenge what the state did and they prevailed in each instance  state continuing these officials from continuing to do this and each time the plate of should rely on their post deprivation remedies hypothetically i guess they could seek some type of war or some type of injunctive order they could try to seek some more formal adjudication of the basis for which is being adjudicated right now is laid out in the briefs the basis for the state's claim against daily services successor in liability there are other steps conceivably that could be taken to stop this to prevent this action or these actions from occurring recurring in the future and i think the point the claim that it is made i think it's important also to address that these were senior state officials and so there should be an exception here i think is what one point that i believe the magistrate judge could rule correctly on is that there is no case on the six circuit that says that but moreover i know that the chief financial officer of bureau sounds like a senior position but there is nothing in the pleading indicating that any of these three arsed quote unquote senior officials that had the authority to take the action that he's claiming that they took it's not it's not set out in the complaint we're dealing with in this we're dealing with an assistant general counsel not the general counsel bureau we're dealing with a chief of customer service wherever she fits within the organizational charts unclear if we're not dealing with the administrator maybe if we're dealing with administrator may would have something to talk about but the claim that these are senior officials that have the authority that's not pleaded that's not laid out anywhere in the complaint in fact there of allegations in the complaint pertaining to specific actions that any of these three took indeed most of the complaints in the complaint center on robo signing of press appease that were used to obtain judgments and liens robo sign facsimile signatures it was almost like it was on automatic pilot which is the antithesis of discretionary decision making that that cases like designer  element is whether the right is cool currently established magistrate judge deaver's below focused on that second element whether the right was clearly established looking at some case law that at least apparently according to her shows some inconsistency in terms of the application of parrot we believe the proper analysis first is that paired applies in the plaintiffs have not daily services is not established that there is a violation of procedure due process precisely because they had available state law remedies in and in terms of the random unauthorized nature of the action i know this is a federal appendix case but it is a case judge and judge cole in which both of you were on it and i'll just quote it's curious inverses walters in it says if an official fails to follow state procedures or conform his conduct to state law the plaintiff's injury is a result of  often authorized act which the state was unable to forsee and thus prevent i was respectfully submit that this case fall squarely within there that they're not jalen daily services are not challenging the established a procedures rather they're claiming that the defendants fail to follow conform their conduct with those established procedures and as such that conduct would constitute random and authorized conduct for purposes of parent and this case i think there probably could be i don't know whether they have that hurry but you know there's a there's abuse of process claims that possibly could be alleged there you know there's a waiver of sovereign immunity in the state of ohio for traditional tor claims that's a tort claim i query whether they could still maintain that claim because there has been other litigation which has proceeded involving the bureau and daily services in the bureau has prevailed at least on most recent decision that went up to the ohio's tenth district court of appeals in which those services brought claims against the bureau there whether the whether they could still bring those claims today in light of principles of claim preclusion i don't know i haven't thought about that but there is an analog in state law that they could at least pursue or look at you know what i guess as a try to think about this case i wonder if your argument also comes down to  proposition that we should shield your clients from liability because they believe their conduct was so controllable that we should make the state responsible reasonable sort of extension of the argument you're on i don't know of any case law that would that has that kind of application to parrot if there are adequate state law remedies to address the alleged procedural due process and they obtained belief and then their actions happened again they happened again they happen concurrently i mean it was a look like a flurry of activity that was coming out of the bureau whether that was because of you know the robo signing and it was on autopilot i don't know but it did happen it happened several times it happened in part because of a mistake by the bureau in terms of what they thought had already as laid out in the complaint there was a there was an administrative adjudication from october of two thousand and nine within the bureau that determined that the experience of by force were transferred to daily services for purposes of determining your workers compensation rating the bureau believe that that decision also established daily services liability turns out that was not the case that that adjudication did not address that matter and the matter remain pending in this still being adjudicated today in ministry typically they were arabs i mean there were errors by the bureau there's no question about that but i think the analysis under prod is do you have an adequate state law remedy to we don't concede that there has been any even in light of the mistakes of the bureau that there have been any procedural due process violations for purposes of the fourteenth amendment if you look at their complaint they allege violations of notice in that the bureau failed to provide notice by certified mail not that they failed to provide notice but they failed to provide notice by certified mail that is what got the bureau hung up over and over and over again either they smelled it by regular mail or they mailed it to i force rather than daily services i know this is probably i think this is beyond the scope but i think it's important for the court to understand we don't it was an error of a higher law for the bureau to obtain judge first court judgments at least one while an assessment was being protested ok so that there's one of the one of the leans in judgments was taken in light of an administrative protest that was occurring within the bureau that should not have been done that was mistaken and the tenth district clarified that a decision in september two thousand and twelve which is actually the first decision in ohio that clarified that so whether the state officials should be on notice then is a question  procedure due process would require i would also note that the only sources had notice of the overall claim now i'm not saying they had notice or least notice by certified mail of each particular judgment in lien but they knew about the bureau's position because they protested that position and that was the protest that at least resulted in a partial adjudication in october two thousand and nine before the bureau so that it was not a surprise what the bureau's position was  the you know specific actions by the state they didn't conform to ohio law and they were set aside and i know you've also argued the matter is moot but i'm wondering if you're still advancing that argument you seem to acknowledge the judge drains question of the plaintiff though have a monetary claim claim for damages so will make the claim a monetary claim and make i think they have avenues or lease they may have avenues to pursue that in ohio law i do believe that it is been decided in in state court and so they're not therefore in the one nine hundred eighty three claim would be moot in the availability of they were decided in state court in their favor they were decided in their yes the the challenges were decided in their favor correct but not the don't think claim that part of the damages daily services was was not able to get credit their financing was impair thank you your honor let me first of all address garrison the gears in case in conjunction with judge moore's question about what's to stop them from doing it again and again and that's the problem with the position that's being advanced here yes the court said these prison guards who happened to have lost this guy's photo album are destroyed it that doesn't give rise and it's interesting the phrase used by the court it doesn't say it's not a due process violation the court says it's not act hundred three it's not actionable but it doesn't say that's not a due process violation but again garrison was a single incident involving prison guards here the problem is if you accept the point origin meant that because there is a procedure in place under ohio law to provide due process they can ignore it they can file another judgment tomorrow they can follow a judgment the week after that when the next one vacated they can f one and they can keep doing it in our room and he has to go down and get it vacated that may take six months it may take nine months and let me address again this notion about there were just some mistakes were made and things happen there are specific allegations in the complaint and let's start with the first one the fifty four million dollars judgment that they said well they misread misunderstood the decision the decision that was made was whether or not daley services was  force for purposes of experience even if it had decided successor liability it starts a new process you issue an assessment there was no assessment created it was mailed to the wrong  address according to the complaint appellee valentino specifically directed hey go down and file this judgement for fifty four million in this win for fifty four million in two weeks later they filed another twenty two million dollar lee to get was vacated almost over a year later ten days later another judgment is filed again and another lena's filed again literally ten minutes after the fifty four million dollar lien was released cases where the relief being sought in the federal court was the same as the state for example injunctive relief here it's not moving because the relief that was a pain the vacating of the judgments to me it would be akin to if you had a case with a defendant who had been beaten by the police and he had signed a confession and the court suppressed the confession because because of a violation of his due process rights were no legal search and then he brings in one nine hundred eighty three action because of the damages he suffered from either the search or from the abuse by the police the court would not say hey you've already had your relief you got the substantial and in part one of the reasons they were suffered was because right when daily services would get a decision from the court vacating the judgment and mr king indicated that there's there's no allegation of due process