UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DAILY SERVICES, LLC,

Plaintiff,

 Civil Action 2:11-cv-01147

v. Magistrate Judge Elizabeth Deavers

TRACY VALENTINO, et al.,

 

Defendants.

OPINION AND ORDER

Plaintiff, Daily Services, LLC, an Ohio company, files this action against various

employees of the Ohio Bureau of Wokers’ Compensation (“BWC”), alleging violations of its

Constitutional right to procedural due process. This matter is before the Court for consideration

of Defendants’ Motion for Judgment on the Pleadings or Alternatively to Stay on the Grounds of

Abstention. (ECF No. 10.) Plaintiff filed its Memorandum in Opposition to Defendants’ Motion

on April 27, 2012. (ECF No. 19.) Defendants filed their Reply on May 14, 2012. (ECF No. 20.) 

On June 4, 2013, Defendants filed a Notice of Supplemental Authority highlighting three recent

state-court rulings related to Plaintiff’s allegations, to which Plaintiff responded.. (ECF Nos. 21

and 24.) This case was referred to the United States Magistrate Judge on June 26, 2013. For the

reasons that follow, the Court concludes that Defendants are entitled to qualified immunity. 

Defendants’ Motion for Judgment on the Pleadings is, therefore, GRANTED. 

I.

According to the Complaint, Plaintiff is a company that provides temporary employment

services in Central Ohio. (Compl. ¶¶ 17, 27, ECF No. 1.) Ryan Mason is the sole member of

Plaintiff. Mason was also the sole member of an Ohio company known as I-Force, LLC (“ICase: 2:11-cv-01147-EPD Doc #: 27 Filed: 09/11/13 Page: 1 of 17 PAGEID #: <pageID>
Force”). I-Force also provided temporary employment services in Central Ohio, but on a longerterm basis than those arranged by Plaintiff. Id. at ¶ 16. 

I-Force applied for self-insured status within the BWC in June, 2008. In November,

2008, the BWC denied I-Force’s application to become self-insured. I-Force then owed over $3

million in unpaid workers’ compensation premiums. Because it could not make this payment, IForce closed in March, 2009.

After I-Force closed, Plaintiff acquired a portion of I-Force’s customers and began to

provide longer-term employment services. Consequently, the BWC sought to hold Plaintiff

liable for I-Force’s unpaid workers’ compensation premiums. In doing so, however, Defendants

purportedly failed to provide Plaintiff with notice and opportunity to be heard, as Ohio law

requires. 

According to Plaintiff, Ohio law sets forth specific procedures that the BWC must follow

prior to filing liens and judgments against an employer. Specifically, the BWC must first provide

the employer with a notice of overdue premiums and an opportunity to pay the premiums within

twenty (20) days. Id. at ¶ 30 (citing Ohio Rev. Code § 4123.37 and Ohio Admin. Code § 4123-

14-02). Upon receipt of the notice, the employer can challenge the assessment by filing a

petition for reassessment. If the employer files a petition for reassessment, the BWC

administrator will issue an ultimate finding, which is then appealable to the Franklin County

Court of Common Pleas. If the employer does not file a petition for reassessment after receiving

a notice of assessment, the BWC may certify that the assessment has become final by operation

of law. Thereafter, the BWC may file a lien or judgment (or both) with the county recorder or

the Franklin County Court of Common Pleas. 

2

Case: 2:11-cv-01147-EPD Doc #: 27 Filed: 09/11/13 Page: 2 of 17 PAGEID #: <pageID>
Ohio law also provides a procedure by which the BWC may transfer rights and

obligations, such as unpaid premiums, from one company to another. Id. at ¶ 52 (citing Ohio

Rev. Code § 4123.32(D), Ohio Admin. Code § 4123-17-02-(C)(1)). According to Plaintiff,

successor liability is appropriate under Ohio law when it is determined that “one employer

wholly succeeds another in the operation of a business.” Id. 

Plaintiff alleges that Defendants failed to comply with the foregoing requirements prior to

filing liens and judgments against it. Plaintiff maintains that Defendants did so in an effort to put

it out of business. Defendants allegedly filed a series of liens and judgments without a prior

determination that Plaintiff is legally a successor to I-Force. In addition, Plaintiff contends that

Defendants failed to provide a notice of assessment and opportunity to file a petition for

reassessment with respect to at least three sets of liens and judgments. Specifically, according to

Plaintiff, Defendants failed to provide a notice of assessment prior to filing a $54 million lien and

a $54 million judgment against Plaintiff on November 6, 2009; a $22 million lien on November

17, 2009; and a $3 million lien and $3 million judgment on July 8, 2010. Id. at ¶¶ 54, 62, 65. 

Plaintiff contends that in light of Defendants’ failure to provide notice and opportunity to

be heard in accordance with Ohio law, the Franklin County Court of Common Pleas vacated the

$54 million judgment and the $3 million judgment on February 8, 2011 and October 4, 2010,

respectively. Id. at ¶¶ 62, 63. After the State court decisions vacating the judgments, on

February 18, 2011, Defendants released the $54 million lien, the $22 million lien, and the $3

million lien. (Compl. ¶ 73, ECF No. 1.) 

That very same day, however, Defendants filed another $3 million lien and $3 million

judgment against Plaintiff for past-due premiums. Id. at ¶¶ 73, 74. Although this time

3

Case: 2:11-cv-01147-EPD Doc #: 27 Filed: 09/11/13 Page: 3 of 17 PAGEID #: <pageID>
Defendants provided prior notice of the assessment, an appeal of the assessment was pending in

the BWC administrative process when Defendants filed the lien and judgment, rendering the lien

and judgment premature and in violation of Ohio law. The BWC eventually denied Plaintiff’s

appeal the $3 million assessment, concluding, incorrectly according to Plaintiff, that it had

previously determined that Plaintiff was a successor to I-Force. Plaintiff subsequently appealed

that decision to the Franklin County Court of Common Pleas and prevailed, resulting in the court

vacating the $3 million judgment. 

1

According to Plaintiff, Defendants acted in an effort to put it out of business, partly

because Defendant Valentino is a friend of the owner of one of Plaintiff’s competitors. Id. at ¶ 8. 

Plaintiff alleges that Defendants’ actions prevented it from securing conventional financing. Due

to the inappropriate liens and judgments, Plaintiff submits that Defendants caused it to incur

approximately $1 million in excess interest charges. Plaintiff alleges that Defendants violated its

due process rights under 42 U.S.C. 1983 causing it significant financial damages. 

II.

Rule 12(c) of the Federal Rules of Civil Procedure allows a party to “move for judgment

on the pleadings.” Fed. R. Civ. P. 12(c). The Court evaluates a motion filed under Rule 12(c)

using the same standard as a Rule 12(b)(6) motion to dismiss. Roth v. Guzman, 650 F.3d 603,

605 (6th Cir. 2011). To survive a motion to dismiss for failure to state a claim under Rule

The authority Defendants provided in their Notice of Supplemental Authority indicates 1

that the parties continued to contest the issue of successor liability in the Ohio court system after

Plaintiff filed this action. Defendants apparently appealed the Franklin County Court of

Common Pleas’ ruling setting aside the $3 million judgment, without success. The Ohio Tenth

District Court of Appeals affirmed the trial court’s ruling on September 18, 2012. (Notice of

Supp. Auth., Ex. 1, ECF No. 21-1.) The parties are currently involved in litigation in the BWC

administrative process to obtain a final determination as to successor liability. Id. at 4. 

4

Case: 2:11-cv-01147-EPD Doc #: 27 Filed: 09/11/13 Page: 4 of 17 PAGEID #: <pageID>
12(b)(6) of the Federal Rules of Civil Procedure, a plaintiff must satisfy the basic federal

pleading requirements set forth in Federal Rule of Civil Procedure 8(a). Under Rule 8(a)(2), a

complaint must contain a “short and plain statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual demands

on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B., --- F.3d

----, No. 12-2620, 2013 WL 4081909, at *1 (6th Cir. Aug. 14, 2013). 

Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]

pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause

of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557). 

Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a

complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on

its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. “The plausibility of an inference depends on

a host of considerations, including common sense and the strength of competing explanations for

the defendant’s conduct.” Flagstar Bank, 2013 WL 4081909 at *2 (citations omitted). 

III.

A. The Parties’ Positions

In the instant Motion, Defendants assert that they are entitled to judgment on the

pleadings because Plaintiff has failed to plead that state law remedies were inadequate to

5

Case: 2:11-cv-01147-EPD Doc #: 27 Filed: 09/11/13 Page: 5 of 17 PAGEID #: <pageID>
compensate its lost property interest. In the alternative, Defendants submit that qualified

immunity protects them from liability because, at the time of their alleged conduct, it was not

clearly established law that their purported conduct would give rise to a due-process entitlement

to predeprivation process. Put another way, although Defendants concede for purposes of this

Motion that they deprived Plaintiff of a property interest, they contend that it was not clearly

established law that Plaintiff was entitled to anything more than postdeprivation review to

compensate the loss. In support of their position, Defendants invoke a doctrine first announced

in Parratt v. Taylor, 451 U.S. 527 (1981), which generally requires plaintiffs who have been

deprived of a property interest as a result of “random and unauthorized” conduct to plead and

prove a lack of adequate postdeprivation state-law remedies.

Plaintiff asserts that Parratt does not apply, and thus that it is not required to plead a lack

of adequate state law remedies. In addition, Plaintiff contends that the clearly established law in

effect at the time of Defendants conduct required them to provide predeprivation process to

satisfy procedural due process. 

B. Procedural Due Proccess and the Parratt Doctrine 

The Fourteenth Amendment provides that “[n]o State shall . . . deprive any person of life,

liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. To sustain a

procedural due process claim, a plaintiff must first point to a property or liberty interest that is

entitled to due-process protection. Mitchell v. Frankhauser, 375 F.3d 477, 480 (2004) (citing

Leary v. Dawschner, 228 F.3d 729, 741-42 (6th Cir. 2000)). Once the plaintiff makes such a

showing, the court “must then determine what process is due.” Id. (quoting Leary, 228 F.3d at

741). Here, the parties do not contest that Plaintiff held a property interest which was entitled to

6

Case: 2:11-cv-01147-EPD Doc #: 27 Filed: 09/11/13 Page: 6 of 17 PAGEID #: <pageID>
due process protection. Thus, the Court addresses only the question of what process Plaintiff was

due.

“Procedural due process generally requires that the state provide a person with notice and

an opportunity to be heard before depriving that person of a property or liberty interest.” Warren

v. City of Athens, Oh., 411 F.3d 697, 708 (6th Cir. 2005); see also Thompson v. Ashe, 250 F.3d

399, 407 (6th Cir. 2001) (“Courts have long recognized that the Fourteenth Amendment requires

that an individual who is deprived of an interest in liberty or property be given notice and a

hearing.”). Nevertheless, a line of United States Supreme Court cases illustrates that, under

certain limited circumstances, the lack of predeprivation process will not invariably render the

taking unconstitutional. 

In Parratt v. Taylor, 451 U.S. 527 (1981), an inmate alleged that a guard’s negligent loss 2

of his mail-ordered hobby kit deprived him of property without due process of law. The Court

recognized that the “fundamental requirement of due process is the opportunity to be heard and it

is an opportunity which must be granted at a meaningful time and in a meaningful manner.” Id.

at 540. Where the “random and unauthorized” negligence of a state official, as opposed to an

“established state procedure,” causes the deprivation, the Court recognized that “[i]t is difficult to

conceive how the State could provide a meaningful hearing before the deprivation takes place.” 

Id. at 541. Ultimately the Court concluded as follows:

[E]ither the necessity of quick action by the State or the impracticality of providing

any meaningful predeprivation process, when coupled with the availability of some

meaningful means by which to assess the propriety of the State’s action at some time

after the initial taking . . . satisf[ies] the requirements of procedural due process.

Parratt was subsequently overruled in part on unrelated grounds. Daniels v. Williams,

2

474 U.S. 327, 331 (1986). 

7

Case: 2:11-cv-01147-EPD Doc #: 27 Filed: 09/11/13 Page: 7 of 17 PAGEID #: <pageID>
Id. at 539. 

In Hudson v. Palmer, 468 U.S. 517 (1984), the Supreme Court extended the Parratt

doctrine to the random and unauthorized intentional conduct of state employees. There, an

inmate alleged that a corrections officer intentionally destroyed his non-contraband items. 

Reasoning that “a state can no more anticipate and control in advance random and unauthorized

conduct of its employees than it can anticipate similar negligent conduct,” the Court held that

Parratt applied, rendering postdeprivation process sufficient to satisfy procedural due process. 

Id. at 533. The Court indicated that when a plaintiff is not challenging an established state

procedure, the “controlling inquiry is solely whether the state is in a position to provide for

predeprivation process.” Id. at 534. 

In its most recent opinion on point, the Supreme Court addressed the contours of the

Parratt doctrine in Zinermon v. Burch, 494 U.S. 113 (1990). The plaintiff in Zinermon alleged

that officials at a state mental-health institution deprived him of his liberty without due process

when they permitted him to consent to his voluntary commitment to the institution even though

they knew or should have known that he was incompetent to provide informed consent. The

Court emphasized that “Parratt and Hudson represent a special case of the general [due process

analysis] in which postdeprivation tort remedies are all the process that is due, simply because

they are the only remedies the State could be expected to provide.” Id. at 128. The dispositive

issue, as the Court saw it, was “whether predeprivation procedural safeguards could address the

risk of deprivation of the kind [the plaintiff] alleges.” Id. at 132. The Court determined that

safeguards could have addressed the risk in that case:

The risk is that some persons who come into Florida’s mental health facilities will

apparently be willing to sign forms authorizing admission and treatment, but will be

8

Case: 2:11-cv-01147-EPD Doc #: 27 Filed: 09/11/13 Page: 8 of 17 PAGEID #: <pageID>
incompetent to give the express conformed consent required for voluntaryplacement. 

Indeed, the very nature of mental illness makes it foreseeable that a person needing

mental health care will be unable to understand . . . the forms that person is asked to

sign, and will be unable to make a knowing and willful decision whether to consent

to admission.

Id. at 133. Ultimately, the Court concluded that Parratt did not apply for three reasons. First, it

found that “[a]ny erroneous deprivation will occur, if at all, at a specific, predictable point in the

admission process – when a patient is given admission forms to sign.” Id. at 136. Second,

because the risk of deprivation was foreseeable, the Court found that it was not impossible for

Florida to provide predeprivation process in the voluntary admission process. Id. Distinguishing

Parratt and Hudson, the Court noted that “[i]t would do no good for the State to have a rule

telling its employees not to lose mail by mistake, . . . [or] a rule forbidding a prison guard to

maliciously destroy a prisoner’s property . . . .” Id. Third, the Court found that the conduct of

the state employees was not “unauthorized” as that term was used in Parratt and Hudson: 

The State delegated to [the state employees] the power and authority to effect the

very deprivation complained of here, . . . and also delegated to them the concomitant

duty to initiate the procedural safeguards set up by state law to guard against

unlawful confinement. In Parratt and Hudson, the state employees had no similar

broad authority to deprive prisoners of their personal property, and no similar duty

to initiate . . . the procedural safeguards required before deprivations occur. The

deprivation here is “unauthorized” only in the sense that it was not an act sanctioned

by state law, but, instead, was a deprivation of constitutional rights by an official’s

abuse of his position. 

Id. at 138 (internal quotation marks, citations, and modifications omitted). 

Accordingly, Parratt, Hudson, and Zinermon demonstrate that to prevail on a procedural

due process claim, a plaintiff must establish that the state deprived him of a liberty or property

interest pursuant to either (1) an “established state procedure” which itself violates procedural

due process rights; or (2) a “random and unauthorized act,” and that state law remedies are

9

Case: 2:11-cv-01147-EPD Doc #: 27 Filed: 09/11/13 Page: 9 of 17 PAGEID #: <pageID>
inadequate to compensate for the loss. Wedgewood Ltd. P’ship I v. Twp. of Liberty, Oh., 610

F.3d 340, 349-50 (6th Cir. 2010). 

A. Analysis 

Defendants offer various challenges to Plaintiff’s claims, including that qualified

immunity protects them from liability. The Court agrees that qualified immunity applies, and,

therefore, Defendants are shielded from liability.

3

1. Standard for Qualified Immunity 

“Qualified immunity balances two important interests—the need to hold public officials

accountable when they exercise power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform their duties reasonably.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009). “Under the doctrine of qualified immunity, ‘government

officials performing discretionary functions generally are shielded from liability for civil

damages insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.’” Phillips v. Roane Cnty., 534 F.3d 531,

538 (6th Cir. 2008) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “[Q]ualified

immunity applies regardless of whether the government official’s error is a mistake of law, a

mistake of fact, or a mistake based on mixed questions of law and fact.” Id. (internal quotation

marks and citations omitted). The determination of whether a government official is entitled to

qualified immunity involves two inquiries. Miller v. Sanilac Cnty., 606 F.3d 240, 247 (6th Cir.

2010). “First, viewing the facts in the light most favorable to the plaintiff, has the plaintiff

Because this conclusion is dispositive of the case, the Court need not, and does not, 3

address the remaining issues Defendants raise in their Motion. 

10

Case: 2:11-cv-01147-EPD Doc #: 27 Filed: 09/11/13 Page: 10 of 17 PAGEID #: <pageID>
shown that a constitutional violation has occurred? Second, was the right clearly established at

the time of the violation?” Id. (internal quotation marks and citations omitted). This second

question turns on whether the right was “so clearly established when the acts were committed

that any [official] in the defendant’s position, measured objectively, would have clearly

understood that he was under an affirmative duty to have refrained from such conduct.” 

Dominique v. Telb, 831 F.2d 673, 676 (6th Cir. 1987). As this Court has previously indicated, a

right is clearly established if

the contours of the right [are] sufficiently clear that a reasonable official would

understand that what he is doing violated that right. This is not to say that an official

action is protected by qualified immunity unless the very action in question has

previously been unlawful; but it is to say that in the light of pre-existing law the

unlawfulness is apparent.

CareToLive v. Eschenbach, 525 F. Supp. 2d 952, 963 (S.D. Oh. 2007). In addition, the Court

need not consider the first and second qualified-immunity inquiries sequentially. Jones v.

Byrnes, 585 F.3d 971, 975 (6th Cir. 2009) (citation omitted). 

Furthermore, in determining whether a right is clearly established for purposes of

qualified immunity, the Court of Appeals for the Sixth Circuit has directed that courts must “look

first to decisions of the Supreme Court, then to decisions of this court and other courts within our

circuit, and finally to decisions of other circuits.” Chappel v. Montgomery Cnty. Fire Prot. Dist.

No. 1, 131 F.3d 564, 579 (6th Cir. 1997). “The burden of convincing a court that the law was

clearly established ‘rests squarely with the plaintiff.’” Key v. Grayson, 179 F.3d 996, 999 (6th

Cir. 1999) (quoting Cope v. Heltsley, 128 F.3d 452, 459 (6th Cir. 1997)).

11

Case: 2:11-cv-01147-EPD Doc #: 27 Filed: 09/11/13 Page: 11 of 17 PAGEID #: <pageID>
2. Application of Qualified Immunity Defense 

Plaintiff’s due process claims arise from Defendants’ purported deliberate failure to

follow Ohio’s established procedures requiring notice and opportunity to be heard prior to filing

liens and judgments against it. As discussed above, to prevail on a procedural due process claim

a plaintiff must generally demonstrate that the defendant effected the deprivation pursuant to (1)

an “established state procedure” which itself violates procedural due process rights; or (2) a

“random and unauthorized act,” for which state law remedies are inadequate to compensate it for

its loss. Wedgewood, 610 F.3d at 349-50. Here, Plaintiff specifically disavows any direct

challenge to Ohio’s established procedures. (Compl. ¶ 28, ECF No. 1.) Thus, Plaintiff must

demonstrate that Defendants engaged in random and unauthorized acts and available state

remedies could not adequately compensate for its loss. Plaintiff contends that although it does

not challenge Ohio’s established procedure, Defendants’ failure to follow Ohio law was not

“random and unauthorized” under Parratt. Put another way, Plaintiff maintains that Parratt does

not apply because Defendants’ conduct, although noncompliant with Ohio’s established

procedure, was not “random and unauthorized.” Consequently, Plaintiff asserts that it was

entitled to predeprivation process, such that the adequacy of postdeprivation remedies is

irrelevant. 

For purposes of qualified immunity, Plaintiff must demonstrate that, at the time of

Defendants’ conduct, it was clearly established that Plaintiff was entitled to predeprivation

process. Thus, Plaintiff’s ability to prevail depends on whether the law was clearly established

that an official’s deliberate failure to follow established state procedures falls outside of Parratt’s

12

Case: 2:11-cv-01147-EPD Doc #: 27 Filed: 09/11/13 Page: 12 of 17 PAGEID #: <pageID>
reach. Because the meaning and application of Parratt are anything but clear, Plaintiff cannot

meet its burden. 

Parratt indicates that the Court is concerned with deprivations that “did not occur as a

result of some established state procedure.” 451 U.S. at 543. This holding, however, obfuscates

the meaning of random and unauthorized conduct. The law in the Sixth Circuit is unsettled as to

whether the failure of a public official to follow established procedure constitutes “random and

unauthorized” conduct, thereby triggering Parratt. In Copeland v. Machulis, for example, prison

officials allegedly confiscated and withheld an inmate’s money in violation of prison policy. 57

F.3d 476, 479 (6th Cir. 1995). In ruling that Parratt applied, the Court characterized the

deprivation as an “unpredictable and unauthorized departure[] from prison policy directives [that

was] beyond the State’s reasonable control . . . .” Id. Similarly, in Hebestreit v. Brown, an

inmate alleged that prison officials failed to follow established procedure requiring a hearing

before classifying his property as contraband. 995 F.2d 1067, 1993 WL 206535, *1 (6th Cir.

1993). The Court concluded that because prison officials “did not act according to established

procedures, . . . their actions were random and unauthorized.” Id. The Court reasoned that,

“[unlike the defendants in Zinermon, who had broad discretionary powers to [effect the type of

deprivation complained of], and who were sued by a patient who sought to hold [them]

accountable for their abuse of their broadly delegated, uncircumscribed power to effect the

deprivation at issue, the defendants in the instant case had no choice but to administer a

predeprivation hearing.” Id. at *2; see also Clemons v. Frassetto, No. 97-1291, 132 F.3d 32

(table), 1997 WL 778121, *2 (6th Cir. 1997) (“If the official performing the state procedure fails

to follow the state procedure, or conform his conduct to state law, the plaintiff’s injury is the

13

Case: 2:11-cv-01147-EPD Doc #: 27 Filed: 09/11/13 Page: 13 of 17 PAGEID #: <pageID>
result of a ‘random and unauthorized act’ which the state was unable to foresee and thus

prevent.”).

The law likewise is unclear as to the significance of pleading that an official with policymaking authority effected the deprivation. The Court of Appeals has suggested that conduct is

“unauthorized,” triggering Parratt, only when the official lacks the authority to cause the type of

deprivation complained of, even if the official violates established state procedure. For example,

in Warren v. City of Athens, Oh., city officials failed to provide a hearing before erecting

barricades blocking the entrance to the drive thru of the plaintiff’s fast-food restaurant. 411 F.3d

697, 702 (6th Cir. 2005). In finding Parratt inapplicable, the Court noted that “‘unauthorized’

means that the official in question did not have the power or authority to effect the deprivation,

not that the act was contrary to law.” Id. at 709-10; see also Keenan v. Allen, No. 93-2398, 28 4

F.3d 1213 (table), 1994 WL 284118, *1 (6th Cir. 1994) (“This complaint may not be dismissed

under the Parratt doctrine, because, contrary to the district court’s conclusions, [the plaintiff] is

arguing that [the defendant] failed to comply with established procedure for conducting a proper

hearing, rather than acting outside that procedure in a ‘random and unauthorized’ manner.”);

Abdul-Mateen v. Moton, No. 93-1662, 19 F.3d 1432 (table), 1994 WL 91827, *2 (6th Cir. 1994)

(in declining to apply Parratt to prison official’s failure to allow inmate to present evidence at a

disciplinary hearing as prison policy dictated, the Court noted that “[a]n otherwise lawful act is

not rendered random and unauthorized for purposes of Parratt merely because the process

Arguably, Warren is distinguishable from this case because there the plaintiff did not 4

allege that placement of the barricades violated established state procedure. Nevertheless, the

Court’s broad language suggests that the due-process inquiry depends at least in part as to

whether the official possessed the authority to effect the deprivation. 

14

Case: 2:11-cv-01147-EPD Doc #: 27 Filed: 09/11/13 Page: 14 of 17 PAGEID #: <pageID>
afforded by state law was not followed”); LRL Prop. v. Portage Metro Hous. Auth., 55 F.3d

1097, 1114 (6th Cir. 1995) (Jones, J. dissenting) (noting, where majority did not reach the issue,

that the “conduct of [defendant] was intentional, and it constituted an abuse of authority rather

than conduct entirely outside of [defendant’s] authority. . . . [H]ad [defendant] merely followed

its own procedures . . ., it would not have deprived the [p]laintiffs of the property interest to

which they are allegedly entitled.”).

Courts outside the Sixth Circuit have pursued varying approaches as to whether an

official’s failure to follow established procedure constitutes “random and unauthorized” conduct,

thereby relieving defendants of their obligation to provide predeprivation process. For example,

the Second Circuit has held that any conduct by a “high ranking official,” even conduct that

violates established procedure, cannot be considered “unauthorized” under Parratt. See, e.g.,

Rivera-Powell v. N.Y. City Bd. of Elections, 470 F.3d 458, 465 (2d Cir. 2006) (“[T]he acts of

high-ranking officials who are ultimate decision-makers and have final authority over significant

matters, even if those acts are contrary to law, should not be considered ‘random and

unauthorized’ conduct for purposes of a procedural due process analysis.”) (internal quotation

marks and citations omitted). The Ninth and Fourth Circuits look to whether the official

possessed the authority to effect the general type of deprivation at issue. See, e.g., Honey v.

Distelrath, 195 F.3d 531, 534 (9th Cir. 1999) (“We hold that the acts at issue in this case were

not random and unauthorized because the defendants in this case had the authority to effect the

very deprivation complained of, and the duty to afford [the plaintiff] procedural due process.”);

Plumer v. State of Md., 915 F.2d 927, 931 (4th Cir. 1990) (“[T]he conduct of the state employees

here were not ‘unauthorized,’ for the state had delegated to its employees the power and authority

15

Case: 2:11-cv-01147-EPD Doc #: 27 Filed: 09/11/13 Page: 15 of 17 PAGEID #: <pageID>
to effect the very deprivation complained of here . . . .”). Still other courts take a contrary view. 

See, e.g., Wright v. Fred Hutchinson Cancer Research Ctr., 269 F. Supp. 2d 1286, 1293 (W.D.

Wash. 2002) (“Unlike the state mental hospital personnel in Zinermon, who were delegated the

choice of whether to initiate precommitment hearings . . ., defendants in this case were given no

choice to make [because a]ll governing statutes, regulations, policies, and procedures require

[predeprivation process].”); Sheppard v. Welch, No. 1:05-cv-467, 2006 WL 3134869, *5 (S.D.

Ind. Oct. 31, 2006) (“Unlike in Zinermon, the Indiana statute does not give the Prosecutor’s

office discretion to decide whether to provide advance notice and an opportunity for a hearing. 

The evidence in this case shows no more than unauthorized and unpredictable violations of state

law.”). 

Accordingly, the law in this and other Circuits does not clearly establish that an official’s

deliberate failure to follow established state procedure falls outside of Parratt’s reach. At best,

the law is inconsistent as to whether Parratt controls under these circumstances. Thus, it was not

clearly established that Plaintiff was entitled to predeprivation process at the time of Defendants’

conduct. Consequently, even construing Plaintiff’s allegations as true, this Court cannot find that

Defendants violated Plaintiff’s clearly established right to due process. Defendants therefore

enjoy qualified immunity under the facts presented here. 

Plaintiff cannot prevail on its contrary arguments. First, Plaintiff contends that qualified

immunity cannot apply because reasonable persons in Defendants’ positions would have known

that their conducted violated Plaintiff’s rights. (Op. 11-12, ECF No. 19.) Perhaps a reasonable

persons in Defendants’ positions would have known that their conduct violated Plaintiff’s

statutory rights under Ohio law; that, however, is not the inquiry. The Court cannot conclude

16

Case: 2:11-cv-01147-EPD Doc #: 27 Filed: 09/11/13 Page: 16 of 17 PAGEID #: <pageID>
that these persons would have knows that their conduct violated Plaintiff’s Constitutional right to

due process. Not every deprivation of a property interest requires predeprivation process. 

Hudson, 468 U.S. at 533. For the reasons discussed above, the law is unclear as to whether the

deprivation complained of here gives rise to an entitlement of predeprivation process. 

Relatedly, Plaintiff asserts that qualified immunity is inappropriate because it alleges in

its Complaint that Defendants knowingly violated its Constitutional rights. Thus, according to

Plaintiff, a jury must decide whether Defendants acted with the requisite knowledge and intent to

violate its Constitutional rights. A close review of the Complaint reveals that Plaintiff alleges

only that Defendants’ knowingly violated Ohio law, i.e., that they knowingly violated the

statutory right to notice and opportunity to be heard. Moreover, even if Plaintiff had alleged that

Defendants knowingly violated its Constitutional right to due process, whether a right is clearly

established is a question of law. Hughes v. City of North Olmsted, 93 F.3d 238, 241 (6th Cir.

1996). Because the law does not clearly establish that Defendants’ conduct falls outside of

Parratt, and thus that Plaintiff was entitled to predeprivation process, Defendants are entitled to

qualified immunity. 

IV.

For the reasons set forth herein, Defendants’ Motion for Judgment on the Pleadings is

GRANTED. (ECF No. 10.) The clerk is DIRECTED to enter judgment in favor of Defendants

and to remove this case from the Court’s active cases and motions docket. 

IT IS SO ORDERED.

Date: September 11, 2013 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers

 United States Magistrate Judge

17

Case: 2:11-cv-01147-EPD Doc #: 27 Filed: 09/11/13 Page: 17 of 17 PAGEID #: <pageID>