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File Name: 10a0235p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

CLARENCE ELKINS; BRANDEN ELKINS;

CLARENCE ELKINS, JR.; MELINDA ELKINS,

Plaintiffs-Appellees,

v.

SUMMIT COUNTY, OHIO; MICHAEL KALLAI,

Chief of Police; PETER MAURER, Sergeant; B.

DAVIS, Detective,

Defendants,

DANTON ADAIR, Officer; M. HUDAK,

Detective; J.L. FLAKER, Detective; DON

ADAMSON, Sergeant; JIM WEESE, Detective,

in their individual and official capacities,

Defendants-Appellants.

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No. 09-3680

Appeal from the United States District Court

for the Northern District of Ohio at Akron.

No. 06-03004—James S. Gwin, District Judge.

Argued: June 9, 2010

Decided and Filed: August 10, 2010 

Before: MARTIN, RYAN, and KETHLEDGE, Circuit Judges.

_________________

COUNSEL

ARGUED: John T. McLandrich, MAZANEC, RASKIN, RYDER & KELLER CO., L.P.A.,

Cleveland, Ohio, for Appellants. Russell Ainsworth, LOEVY & LOEVY, Chicago, Illinois,

for Appellees. ON BRIEF: John T. McLandrich, Frank H. Scialdone, MAZANEC,

RASKIN, RYDER & KELLER CO., L.P.A., Cleveland, Ohio, for Appellants. Russell

Ainsworth, Jonathan Loevy, LOEVY & LOEVY, Chicago, Illinois, for Appellees. 

1
No. 09-3680 Elkins, et al. v. Summit County, Ohio, et al. Page 2

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Facts are drawn from the district court opinion. See Elkins v. Summit County, Ohio, No. 5:06-

CV-3004, 2009 WL 1150114, at *1 (N.D. Ohio Apr. 28, 2009).

_________________

OPINION

_________________

BOYCE F. MARTIN, JR., Circuit Judge. A jury convicted Clarence Elkins, Sr., of

raping and murdering his mother-in-law, Judith Johnson, and of assaulting and raping his

six-year-old niece, Brooke Sutton. The jury sentenced him to life in prison with no

eligibility for parole. Seven years later, Elkins obtained DNA evidence that proved that Earl

Mann, Johnson’s neighbor at the time of the murder, had committed the crimes, and Elkins

was exonerated. The case against Elkins was dismissed, and the State of Ohio awarded him

$1,075,000 in a wrongful imprisonment settlement.

Thereafter, Elkins brought suit on a variety of state and federal claims in the United

States District Court in the Northern District of Ohio against the City of Barberton, Ohio,

and multiple officers and detectives who had investigated the Johnson murder. Elkins

claimed that the officers failed to disclose to the prosecution a memorandum that would have

exonerated him. The officers and the city moved for summary judgment on all the claims,

asserting that they were entitled to qualified immunity and state sovereign immunity. The

court dismissed the claims against the city and granted the officers qualified immunity on

all claims except: (1) the Brady violation of Elkins’ constitutional right to due process under

42 U.S.C. § 1983 claim; and (2) the state-law malicious prosecution and loss of consortium

claims. We affirm.

I.

On June 6, 1998, Johnson was raped and murdered in her home at Barberton, Ohio.1

Her six-year-old granddaughter, Brooke, was also assaulted and raped. Based on

Brooke’s statement that the rapist looked like her uncle, Elkins, the Barberton police

arrested Elkins. Shortly thereafter, he was indicted on charges of aggravated murder,

attempted aggravated murder, rape, and felonious assault.
No. 09-3680 Elkins, et al. v. Summit County, Ohio, et al. Page 3

2

Strong-arm robberies are robberies in which the victim is surrounded by a group of individuals

who brutally beat the victim while robbing him or her.

3

These procedures were not contested at the trial.

On January 5, 1999, while the Elkins investigation was ongoing, Mann was

arrested by the Barberton police for two “strong-arm” robberies.2 During the course of

the arrest, Mann, who was drunk, asked a patrol officer, Gerard Antenucci, “Why don’t

you charge me with the Judy Johnson murder?” In compliance with his training that

mandated reporting anything that officers believed the Detective Bureau should know

about, Antenucci wrote an interdepartmental memorandum memorializing Mann’s

statement and directed it to the department that was investigating Johnson’s murder.

Antenucci later testified that he wrote the memorandum that day and placed it in a mail

box that, according to department procedures,3 was emptied each day by a member of

the Detective Bureau and disseminated to the detectives working on the specific case.

However, the Mann memorandum was not disclosed to Elkins or the prosecution and

was never produced.

At trial, Brooke identified Elkins as the perpetrator. However, Elkins presented

substantial evidence that someone else committed the crime. Elkins’ then-wife, Melinda

Elkins, who is Johnson’s daughter, testified that Elkins had been at home with her, forty

miles away from Johnson’s house, at the time of the crime. Other witnesses testified to

having spent time with Elkins during the evening until shortly before the murder

occurred. More significantly, the officers recovered pubic hair and head hairs from

Johnson’s anus and Brooke’s nightgown that, when subjected to DNA analysis, did not

match Elkins’ hair. The officers obtained hair samples from several other individuals,

attempting to find a DNA match, but did not succeed. On June 4, 1999, a jury convicted

Elkins on all charges and sentenced him to life imprisonment with no eligibility for

parole.
No. 09-3680 Elkins, et al. v. Summit County, Ohio, et al. Page 4

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Elkins became aware of a news report stating that Mann had been arrested and convicted of

molesting his three young daughters while living next door to Johnson. As luck would have it, Mann was

sentenced to prison and transferred to the same facility where Elkins was housed. Elkins noticed that

Mann left a cigarette butt on a table in the recreational area. He requested that another prisoner watch the

butt while he obtained toilet paper in order to recover the cigarette without tainting any DNA evidence.

Elkins then spent the next two weeks illicitly attempting to get a plastic bag through the prison black

market so that he could smuggle the cigarette out of prison for his attorney to test, which he eventually did.

The testing showed that Mann’s DNA matched the DNA found at the scene of the Johnson murders.

(Appellee Br. at 14-15.) 

In 2002, Brooke recanted her testimony, but the state did not reverse its

conviction. The same year, through a series of breathtakingly improbable coincidences,4

Elkins began to suspect that Mann was Johnson’s murderer and was able to obtain a

DNA sample from him. Subsequent testing revealed that Mann’s DNA matched the

DNA found at the Johnson murder scene, and after an investigation, Elkins was released

from prison after serving seven years. Mann ultimately pled guilty to Johnson’s murder,

and the criminal case against Elkins was dismissed. The Summit County Court of

Common Pleas found that Elkins was wrongfully imprisoned and the State of Ohio

awarded him $1,075,000 in a wrongful imprisonment settlement.

On December 18, 2006, Elkins brought suit against multiple defendants,

including the City of Barberton, Officer Danton Adair, Detective M. Hudak, Detective

J.L. Flaker, Sergeant Don Adamson and Detective Jim Weese on multiple state and

federal claims. The individual defendants requested summary judgment, alleging that

they were protected from suits by qualified immunity and state sovereign immunity.

The district court dismissed the claims against the city and granted summary

judgment to the officers on all claims but the section 1983 due process claim, the statelaw malicious prosecution claim, and the derivative state-law loss of consortium claim.

The court held that, in a summary judgment posture, it must infer that the detectives both

received and failed to disclose the memorandum, and that the failure to disclose the

memorandum violated Elkins’ right to due process. It further held that Elkins had

presented sufficient evidence to show that the officers acted in bad faith or were reckless

in failing to disclose the memo, and therefore provided sufficient evidence to support the

state-law malicious prosecution claim. The officers timely appealed.
No. 09-3680 Elkins, et al. v. Summit County, Ohio, et al. Page 5

II.

We review the district court’s denial of summary judgment de novo. Moldowan

v. City of Warren, 578 F.3d 351, 373 (6th Cir. 2009). “Summary judgment is proper ‘if

the pleadings, the discovery and disclosure materials on file, and any affidavits show that

there is no genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law.’” Id. at 373-74 (quoting FED.R.CIV.P. 56(c)). “A genuine

issue of material fact exists when there are ‘disputes over facts that might affect the

outcome of the suit under the governing law.’” Id. (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)). “However, ‘[w]here the record taken as a whole could

not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine

issue for trial.’’” Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986). “That Defendants’ motions for summary judgment were based

on claims of . . . qualified immunity does not affect the standard of review that applies.

[This] is a legal question that this Court reviews de novo.” Id. (internal citation omitted).

III.

Elkins brings claims under 42 U.S.C. § 1983, alleging that the officers deprived

him of his constitutional right to a fair trial when they failed to disclose the Mann

memorandum to the defense, evidence that Elkins claims would likely have made a

substantial difference to the outcome of his trial. He also advances a state-law malicious

prosecution claim and derivative loss of consortium claim. The officers respond that

they are entitled to qualified immunity and state sovereign immunity on all the claims

and, thus, the district court erred in denying them summary judgment on Elkins’ section

1983 violation claim, and the state malicious prosecution and loss of consortium claims.
No. 09-3680 Elkins, et al. v. Summit County, Ohio, et al. Page 6

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The officers allege that the district court applied the wrong legal standard to the case. While

Moldowan, which is this Court’s most recent iteration of the relevant law, had not been decided at the time

of the district court’s opinion, the district court’s analysis is legally sound. 

6

“[F]ederal appellate courts have jurisdiction to hear interlocutory appeals considering ‘the legal

question of qualified immunity, i.e., whether a given set of facts violates clearly established law.’”

Moldowan, 578 F.3d at 369 (quoting Farm Labour Org. Comm. v. Ohio State Highway Patrol, 308 F.3d

523, 531 (6th Cir. 2002)). “Our jurisdiction is limited to resolving pure questions of law . . . [and] we lack

jurisdiction to consider a ‘district court’s summary judgment order insofar as that order determines whether

or not the pretrial record sets forth a ‘genuine’ issue of fact for trial.’” Id. at 369-70 (quoting Johnson v.

Jones, 515 U.S. 304, 313 (1995).

A. Section 1983 Claim

1. Qualified Immunity

In evaluating qualified immunity claims, we “[f]irst . . . determine whether a

constitutional violation occurred; second, we determine whether the right that was

violated was a clearly established right of which a reasonable person would have

known.” Moldowan, 578 F.3d at 375.5 The officers claim first that they are entitled to

qualified immunity on the due process claim because Elkins has not presented sufficient

evidence demonstrating that the officers actually received the Mann memorandum and

that, had they received it, he cannot show that the memorandum was apparently

exculpatory. 

Although the officers either deny having seen the memorandum or did not testify

regarding the memorandum, they do not contest that Antenucci created and dispatched

the memorandum to the Detective Bureau in accordance with department policies. There

is also no dispute that the memorandum, if mailed, would have been delivered to the

detectives assigned to the case. Evidence adduced at trial reveals that no other relevant

document in the case was missing, and that the incident report regarding Mann’s

robbery, which was also placed into the mailbox along with the Mann memorandum,

was received by the detectives and preserved. It is also uncontested that the Mann

memorandum was never delivered to the prosecutor or Elkins. 

Given that, when appealing a denial of qualified immunity, “the defendant must

. . . be willing to concede the most favorable view of the facts to the plaintiff for

purposes of the appeal,” id. at 370,6

 we agree with the district court’s conclusion that
No. 09-3680 Elkins, et al. v. Summit County, Ohio, et al. Page 7

“the Court must assume that the Mann memo was delivered to the [officers] working the

Elkins case, according to police policy and custom,” and also assume that “having read

the memo, the [officers] withheld it, never divulging it to the prosecution, thereby

preventing it from being disclosed to the defense.” Elkins, 2009 WL 1150114, at *8.

Having assumed that the officers received the Mann memorandum and did not

divulge it, we must next determine whether that failure violated Elkins’ constitutional

right to due process. “‘[T]he suppression by the prosecution of evidence favorable to

an accused . . . violates due process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the prosecution.’” Moldowan,

578 F.3d at 376-77 (quoting Brady, 373 U.S. at 87). Traditionally, this duty applied to

prosecution rather than police, but in Moldowan, we held that “the due process

guarantees recognized in Brady also impose an analogous or derivative obligation on the

police [to disclose to the prosecutor evidence whose materially exculpatory value should

have been “apparent” to him at the time of his investigation].” Id. at 382, 388. Thus,

Elkins had a constitutional right to have favorable evidence disclosed to the prosecution

and court.

Next, we must determine whether the “‘contours of the right [were] sufficiently

clear that a reasonable official would understand that what he is doing violate[d] that

right,’” id. at 382 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)) at the time

the officers failed to disclose the Mann memorandum—in this case, January 5, 1999, the

date that Antenucci wrote and mailed the memorandum to the officers. In Moldowan,

we found that “at least three circuits recognized prior to August 1990 . . . this right was

clearly established,” id., and that the right may have been clearly established as early as

1964. Id. Thus, Elkins’ right to have the Mann memorandum disclosed was clearly

established on January 5, 1999.
No. 09-3680 Elkins, et al. v. Summit County, Ohio, et al. Page 8

2. Apparent Exculpatory Nature of the Memorandum

Having determined that Elkins’ claims against the officers implicate a clearly

established constitutional right, we must next determine whether, taking the facts alleged

by Elkins as true, Elkins can show a violation of this right. In order to do so, Elkins

must provide evidence that “‘the exculpatory value’ of the evidence [was] ‘apparent.’”

Moldowan, 578 F.3d at 388 (quoting California v. Trombetta, 467 U.S. 479, 489 (1984)).

Moldowan is grounded in two Supreme Court cases, Arizona v. Youngblood, 488 U.S.

51 (1988) and California v. Trombetta, 467 U.S. 479. Although Youngblood established

that police cannot be held accountable for failing to divine the materiality of every scrap

of evidence, Trombetta holds that when police have in their possession a piece of

evidence that “might be expected to play a significant role in the suspect’s defense,” Id.

at 488, they have a constitutional duty to preserve that evidence. 

Thus, the question for us is whether the exculpatory value of the Mann

memorandum would have been apparent to the detectives given the state of the case at

the time. See Moldowan, 578 F.3d at 388-89; Trombetta, 467 U.S. at 487-88. While we

have never elucidated a test for determining what evidence is apparently exculpatory,

there is no question that, in light of the broad range of evidence available to the officers

at the time, the Mann statement “cast serious doubt on, if not entirely discredit[ed

Brooke’s] identification of [Elkins].” Moldowan, 578 F.3d at 382. Even less would

have been sufficient. 

The case against Elkins was flimsy at best. His conviction relied primarily upon

the testimony of a six-year-old child who had been attacked in her bed in the dark,

savagely raped, and never clearly saw her attacker. On the morning following her rape,

Brooke went to Mann’s house for help. When Mann’s wife answered the door, she did

not call 911 or alert the police, but instead asked Brooke—who was covered in

blood—to wait on the front porch and then drove her home, behavior that is highly

unusual if not suspect. Additionally, several witnesses testified that Elkins was home

with his wife, forty miles away from the scene of the crime, at the time it took place.

Moreover, the officers knew that body hair found in Johnson’s anus and on Brooke’s
No. 09-3680 Elkins, et al. v. Summit County, Ohio, et al. Page 9

nightgown suggested that someone other than Elkins had sodomized and murdered

Johnson and then raped Brooke.

Mann, who was out of prison on parole, was arrested for committing violent

crimes, two “strong-arm” robberies. When the police arrested him, he listed his address

as being next door to Johnson. Moreover, when Mann made the incriminating statement

to Antenucci, Antenucci found the statement so obviously exculpatory that he

memorialized it in a memorandum that he forwarded to the detectives on the Elkins’

case. 

The officers had all of this information available to them at the time that they

received the memorandum. Furthermore, they knew that the case against Elkins was

weak and had been attempting to identify other suspects whose DNA matched the DNA

found at the crime scene. Thus, it is clear that Mann’s statement, which linked him

directly to Johnson’s murder, “might be expected to play a significant role in [Elkins’]

defense.” Id. at 388. Therefore, the Mann memorandum was apparently exculpatory in

light of the whole case at the time, and the officers’ failure to disclose it violated Elkins’

right to due process.

Thus, we affirm the district court’s denial of summary judgment as to the

officers’ liability on Elkins’ section 1983 claim.

B. State-Law Malicious Prosecution and the Derivative Loss of Consortium Claims

The district court granted Elkins summary judgment on his state-law malicious

prosecution claims, finding that he had “presented sufficient evidence at the summary

judgment stage to show that the [officers] withheld exculpatory evidence more than

negligently.” Elkins, 2009 WL 1150114, at *13. The officers appeal, claiming that

Elkins failed to provide sufficient evidence that they acted maliciously, in bad faith, or

recklessly. See O.R.C. § 2744.03(A)(6)(b) (granting employees of political subdivisions

immunity from civil liability unless the acts that formed the basis of the claim were

committed with “malicious purpose, in bad faith, or in a wanton and reckless manner.”).
No. 09-3680 Elkins, et al. v. Summit County, Ohio, et al. Page 10

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Furthermore, were we to review the state claims, we would find that Elkins has presented

evidence sufficient to withstand summary judgment on the question of whether the officers’ failure to

disclose the memorandum was more than negligent. Officers allegedly told Johnson’s daughter, who

discovered a lampshade bearing two bloody hand-prints in Johnson’s house following the police

investigation, that they did not need the lampshade “because they had enough evidence already.”

Moreover, an alibi witness, Sue Dalton, testified that, when she informed the officers that she had seen

Elkins the night of the murder and did not believe that he committed the crime, the officers allegedly

responded, “we got our man, we know for a fact that we have our man.” When Dalton continued to

protest, the officers allegedly told her that, if she did not distance herself from Elkins, she would end up

in jail. Id. Furthermore, one of the officers allegedly falsified a police report to hide evidence that Brooke

was unsure that Elkins had attacked her. Id. In addition, Elkins has presented unrefuted testimony that

the apparently exculpatory Mann memorandum was mailed to the officers. 

Under the Ohio law in place at the time that Elkins’ claims accrued, we do not

have jurisdiction to review an interlocutory appeal of a denial of immunity from liability

under state law. See Chesher v. Neyer, 477 F.3d 784, 794 (6th Cir. 2007) (holding that

the April 9, 2003 amendment of the Ohio Revised Code section 2744.03 making a

denial of immunity immediately appealable applies only prospectively to claims accruing

after the effective date of the amendment). “Our jurisdiction thus turns on whether the

claims to which the denial of immunity applied accrued on or after [the 2003

amendment].” Id. As the statements by Mann occurred on January 5, 1999 and Elkins

was convicted on June 4, 1999, there is no question that Elkins’ state law claims accrued

in 1999, prior to the 2003 amendment. Thus, we do not have jurisdiction to review

them.7

IV.

For the reasons set forth above, we AFFIRM the district court’s denial of

summary judgment.