NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 13a0008n.06 Nos. 11-4003/11-4004 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
S.L ., a min o r, b y and throug h his g uardia n and next friend K .L ., et al, Plaintiffs/Appellees,
v. PI ERCE TOWNSHI P BO ARD OF TRUSTEES, et al., Def endants/Appe llants. ) ) ) ) ) ) ) ) ) ) ) ) ON APP EAL FROM THE UNI TED STATES DI STRI CT COUR T FOR THE SOUTHERN DI STRI CT OF OHI O

Be fore : MOORE, GI L MAN, and K ETHL EDGE, Circuit Judges. KE T HLED GE, Circuit J udg e. S.L ., a teena g er, filed this § 1983 action ag ainst sev er al defe ndants afte r he was arr ested for ag g rava ted arson and held in a juvenile detention cente r. Def endants David Hom er, the police office r who arr ested S.L ., and Thomas DelGr ande, the Superintendent of the Clermont County J uvenile Detention Center, appea l the district court’s denial of their summary -judg ment motions, in which they soug ht qua lified immunit y . We dismiss Homer’ s appea l for lac k of jurisdiction and af firm the denia l of DelGr ande’ s summary judgme nt motion. I
. On Dec ember 3, 2006, S.L .’s mother, Gay le Schneider , found some burnt popsicle sticks in S.L .’s bedr oom. Schneider c onfronted S.L
. and the ensuing arg ument led her to call 911. Homer and his supervisor, L ieutenant Ma rvin Say lor, responde d to the call.No. 11-4003

S.L. v. Pierce Townshi

p Board of Trust ees Homer questioned S.L
. alone in S.L ’s room. I t is undisputed that S.L
. then admitted that he had set some popsicle sticks on fire. But Homer and S.L
. now disag ree about what happene d next. Acc ording to H omer, S.L
. said that he had lef t the sticks in his room while they wer e smoldering
. Homer asked S.L
. whether he thought the smoldering sticks would start a fire. S.L
. replied, “I rea lly don’t car e. I don’t want to be here .” Homer left S.L
. to confe r with L ieutenant Say lor, afte r which Homer arr ested S.L
. for arson. Acc ording to S.L
. , h o we v er , h e d id not say that he left sticks smoldering in his room. Rather, he exti ng uished the fire and place d the sticks on a car dboard box
. S.L . also say s that Homer a rre sted him without speaking to Say lor. The re s t o f t h e story is undisputed. Homer booked S.L
. at the Clermont County J uvenile Detention Center for ag g rava ted arson, a first-deg ree felony
. There , Shawn Ba rtley , the intake cler

k for the nig ht, prepa

red a risk-asse ssment sheet and a repor t rec ommending S.L .’s detention. The next day , S
. L
. ap p eared befor e J uvenile Court J udg e Stephanie Wy ler for a detention hear ing. S h e d et ermined that S.L
. should rema in confine d pending a psy cholog ical evalua tion. J udg e W y ler also appointed a g uardia n ad litem and sche d u l ed S
. L .’s pretrial confe renc e. Be fore t h e p re t ri al conferenc e, S.L .’s g uardia n ad litem filed a motion for rele ase. At the hear ing on th e motion, the prosec utor acknow ledg ed the lack of evidenc e of ag g rava ted arson and amende d S.L .’s char g e to unruliness. J udg e Wy ler order ed S.L .’s rele ase and later dismiss ed the unruliness char g e. S.L
. there afte r filed this 42 U.S.C. § 1983 action, alleg ing that Homer arr ested S.L
. without probable cause and that DelGr ande ne g lige ntly supervised the admissions process at the detention cente r. H o me r and DelGr ande moved for summary judgme nt on qualified-immunity g rounds, which the district court de nied. This interlocutory appea l followed. -2-No. 11-4003

S.L. v. Pierce Townshi

p Board of Trust ees I I
. We revie w de novo the district court’s denial of qu al i fi ed immunit y . Marcilis v. Twp. of Redford , 693 F.3d 589, 597 (6th Cir. 2012). I n doing so, “[w]e take the district court’s view of the fac ts in the light most favor able to [S .L ].” Hayde n v. Gree n , 640 F.3d 150, 152–53 (6th Cir. 2011). Homer first arg ues that collater al estoppel bars S.L .’s wrong ful-ar rest claim beca

use J udg e Wy ler had alre ady deter

mined that Homer had probable cause to arr est S.L
. Under Ohio law, which applies here , if the parties to the curr ent action alr ea d y litigated an issue to a decision in a prior action, they must li ve with the dec ision. See D aubenmire v . City of Col umbus , 507 F.3d 383, 389 (6th Cir. 2007) (quoting Thompson v. W ing , 637 N.E.2d 917, 923 (Ohio 1994) ). But here , the prem i s e of Homer’ s arg ument is wrong . J udg e Wy ler never testified in her deposition that she had made a probable -ca use deter mination at S.L .’s detention hear ing. (I nstead, she implied the oppo s i t e.) Homer say s that collater al estoppel applies nonetheless, citing J udg e Wy ler’s a ffidavit that, at the detention hear ing, she “wa s satisfied that there was probable cause to believe that [S .L .] may have committed the offe nse.” But whether J udg e Wy ler was “satisfied” as to probable cause is beside the point. What matters for our purposes is whether she made a formal probable -ca

use deter mination at the detention hear ing; and she did not. So there is no prior decision as to probable cause to bind the parties her e. Homer next arg

ues that he was entitled to q u al i fi ed immunit y beca use he, in fac t, had probable cause to arr est S.L
. An arr esting office r has probable cause if, based on fac ts known at the time of arr est, he rea sonably believes that the defe ndant had committed a crime. Logsdon v. Hains , 492 F.3d 334, 341 (6th Cir. 2007). Her e, Homer arr ested S. L
. fo r aggr avate d arson. To have -3-No. 11-4003

S.L. v. Pierce Townshi

p Board of Trust ees probable cause to a

rre st S.L
. for that, there fore , Homer ne eded g rounds re asonably to be lieve that, by setting the popsicle sticks on fire , S.L
. knew he had cre ated a substantial r isk of harm by fire to the home or to the pe ople inside. See O.R.C. § 2909.02(A). Homer sa y s he has suc h g rounds bec ause S.L . said that he left the s ticks smoldering in the bedroom and did not car e whether the house caug ht on fire. But S.L
. disputes that he left the sticks smoldering and, eve n if we w ere to interpret S.L .’s ambig uous testimony as conc eding that he did not car e whether the house caug ht o n fi re , s uch a statement is larg ely immaterial to deter mining whether S.L .’s conduct cre ated the “substantial risk” that Ohio’s ag g rava ted-a rson statute require s. Homer also say s he obtained more information from Say lor befor e arr esting S.L
. But S.L
. disputes that Homer conf

err ed with Say lor. And the only rele vant undisputed fac t—that S.L
. set popsicle sticks on fire in h i s room —does not support a probable -ca use finding
. Ohio define s “substantial risk” as “a strong possibili ty
. . . that a cer tain result may occur .” O.R.C. § 2901.01(A)( 8 ). T h e statute there fore require s more than an open flame inside a structure
. Otherw ise criminal violations would include lighting a candle , cig are tte, or stove-top burner inside a home. Cf. State v. W olf , 891 N.E. 2d 358, 362–63 (Ohio Ct. App. 2008) (over turning a conviction for ag g rava ted arson beca use of insufficie nt evidence ). Homer’ s appea l is based upon disputed issues of fac t. We therefor e dismiss his appeal for lack of jurisdiction. See B erryman v . Rieger , 150 F.3d 561, 563–64 ( 6th Cir. 1998). I I I
. S
. L
. also asser

ts a state-law neg lige nt-supervision claim ag ainst DelGr ande, th e superintende nt of the detention cente r. Acc ording to S.L ., DelGr ande failed to train Shawn Ba rtley -4-No. 11-4003

S.L. v. Pierce Townshi

p Board of Trust ees about the leg al require ments for the intake proce ss at the ce n t er . And Ba rtley , in turn, made a mistake that alleg edly resulted in S.L .’s detention. Specifica lly , Ba rtley failed to g ive Homer an oath befor e Ba rtley acc epted Homer’ s complaint, as re q u i red under Ohio Rule of J uvenile Procedur e 10(B )(3)
. DelGr ande arg ues here , as he did in the district court, that he is entitled to immunit y from this claim under Ohio law. We revie w the district court’s denial of Ohi o state-law immunit y de
novo. Sabo v. City of Mentor , 657 F.3d 332, 336–37 ( 6th Cir. 2011). Ohio law provi d es t wo ty pes of qualified immunit y : public immunit y and individual immunit y . See O.R.C. 2744.03; Lambert v. Clancy , 927 N.E.2d 585, 587 (Ohio 2010)

. DelGr ande did not seek public immunit y in the district court, so we consider only his a rg ument for individual immunit y here
. See Summe v. Kenton Cnty. Clerk’s Office , 604 F.3d 257, 269–70 (6th Cir. 2010)
. Ohio law presumes individual immunit y for p u b l i c empl oy ees in civil actions, subject to three ex ce p t i o n s : (1) wher e the employ ee acte d outside the scope of employ ment, (2) wher e the employ ee acte d with “malicious purpose, in bad faith, or i n a wa n t o n or rec kless manner ,” and (3) wher e a statute imposes liability
. O.R.C. 2744.03(A)( 6). Her e, the district court deter mined that the second exception applied beca use a jury could find that DelGr ande acte d in a wanton or rec kless
manner . Thus, the cour

t denied immunity
. DelGr ande first say s that the “wanton or reckless” exception cate g orica lly cannot apply to neg lige nt-supervision claims beca use those claims require only a finding of neg lige nce. But S.L
. can prove his neg li gen ce cl ai m b y a showing of wanton or rec kless conduct. And the district court proper ly conclude d that the evidenc e in the rec ord is sufficie nt to cre ate a jury question conce rning whether S.L . has made that showing here . So DelGra nde’s f irst arg ument is without m erit. -5-No. 11-4003

S.L. v. Pierce Townshi

p Board of Trust ees DelGr ande also arg ues that he did not, in fac t, act want only or rec klessly
. Wanton misconduct is “the failure to exercise any car e whatsoeve r.” Fabrey v. McD onald Vill. Police Dept. , 639 N.E.2d 31, 35 (Ohio 1994). Recklessne ss is a “pe rver se disreg ard of a known risk.” O’Toole v. De nihan , 889 N.E.2d 505, 516–17 (Ohio 2008)
. DelGr ande admits that, as superintende nt, he is responsible for training employ ees about the leg al require ments for detaining juveniles. And Ba rtley t es t i fi ed that he was never trained to administer an oath befor e acc epting complaints, as require d under Ohio law. A jury could there fore find that, by failing to train Ba rtley about a specific detention require ment, DelGr ande exercised no
car e with reg ard to supervising his staff or disreg arde d the risk of illega lly detaining juveniles. Cf. DiGorgio v. Cleveland , 2011 WL 5517366, at *7 (Ohio Ct. App. Nov. 10, 2012). Thus, DelGr ande is not entitl ed to individual immuni ty under O hio law. We theref ore dismiss Office r Homer ’s appe al for la ck of jurisdiction and a ffirm the district court’s orde r deny ing qua lified immunit y

for De lGrande
.

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