NOT RECOMMENDED FOR PUBLICATION

File Name: 20a0313n.06

No. 19-3803

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MARCUS NEWELL, )

)

Plaintiff-Appellant, )

)

v. )

) ON APPEAL FROM THE

) THE UNITED STATES DISTRICT

CASEY HUEPENBECKER; HENRY ) COURT FOR THE NORTHERN

COUNTY, OH, BOARD OF ) DISTRICT OF OHIO

COMMISSIONERS, )

)

Defendants-Appellees. ) OPINION

BEFORE: NORRIS, DONALD, and NALBANDIAN, Circuit Judges.

ALAN E. NORRIS, Circuit Judge. On April 5, 2016, Casey Huepenbecker, a special 

deputy sheriff for Henry County, and Marcus Newell were receiving firearms training at a range 

operated by the City of Napoleon, Ohio. During a break, Huepenbecker asked for, and received, 

permission to clean his weapon. Shortly after cleaning the gun, he set it on a picnic table near 

where other trainees were relaxing. It fired and the bullet hit Newell in the back. The shot damaged 

his liver, cracked a vertebra, and caused the loss of his spleen.

No one disputes what happened. The only issue is where responsibility lies. As part of his 

quest for compensation, Newell filed a Section 1983 suit in federal court naming Huepenbecker, 

Henry County, its Commissioners, and the City of Napoleon as defendants. The complaint 

included a second cause of action under Ohio law for negligence. 
No. 19-3803, Newell v. Heupenbecker

2

With respect to the federal cause of action, the district court granted summary judgment to 

defendants Huepenbecker and the County while declining to exercise jurisdiction over the statelaw claim.1 This appeal followed. We now affirm.

I.

Ohio Revised Code § 311.04 authorizes the appointment of deputy sheriffs. In Henry 

County, special deputies, which is the capacity in which defendant Huepenbecker served, 

performed a limited set of duties as opposed to regular deputies. See 1989 Op. Att’y Gen. No. 89-

071, 2-323. Typical assignments included “parking duties and patrol at county-wide functions such 

as fairs.” Id.

Approximately a year before the shooting, Huepenbecker had been appointed and sworn 

in as a special deputy by Henry County Sheriff Michael Bodenbender. Special deputies are 

required to complete the Ohio Peace Officer Training Academy (“OPOTA”) firearms course 

before they can be authorized to carry a weapon or perform duties outside the presence of a fully 

certified deputy. (Page ID 446) (Rules and Regulations of the Henry County Sheriff’s Auxiliary); 

1989 Op. Att’y Gen. No. 89-071, 2-323. At the time of the accident, Huepenbecker was attending 

the police academy at Northwest State Community College to obtain his OPOTA certification. 

The County did not pay him for the time spent taking the course nor did it reimburse him for 

tuition. Plaintiff Newell was likewise enrolled it the program. The shooting occurred during one 

of the course sessions.

In Henry County, special deputies receive compensation and assignments from the County 

Sheriff’s Auxiliary, a non-governmental organization, rather than from the Sheriff’s Department. 

1

In an earlier order, the district court granted summary judgment to the City of Napoleon. 

That judgment has not been appealed.
No. 19-3803, Newell v. Heupenbecker

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Randy Hill served as the Auxiliary’s only officer during the period at issue. In his deposition, he 

explained that there are two kinds of special deputies: those who have obtained OPOTA 

certification and those who had not. With respect to the non-certified deputies, “they are not 

allowed to work by themselves, not make arrests . . . they basically are there to provide assistance.” 

These special deputies also do not carry a firearm. Sheriff Bodenbender noted during his deposition 

that “I have never had a special deputy make an arrest.” 

Moreover, Huepenbecker never received a paycheck from Henry County; he was paid by 

the Auxiliary. He knew that he would have to complete the OPOTA course to be considered for 

employment in the Sheriff’s Department, which he acknowledged was his long-term goal. 

However, he had not told Hill or anyone in the Sheriff’s Department that he was enrolled in the 

course. He also stated during his deposition that he believed neither Hill nor Sheriff Bodenbender 

“had any idea that [he was] at the Napoleon gun range on the day the shooting occurred.”

II.

In his amended complaint, plaintiff alleged that defendants deprived him of his right to due 

process under the Fourteenth Amendment and acted with deliberate indifference towards him. The 

district court provided the following analysis in granting summary judgment to defendants with 

respect to the Section 1983 claim:

Liability arises under 42 U.S.C. § 1983 only if the defendant violated the 

plaintiff’s federal rights while acting “under color of state law.” West v. Atkins, 

487 U.S. 42, 48 (1988). “[A]cting under color of state law requires that the 

defendant . . . have exercised the power ‘possessed by virtue of state law and made 

possible only because the wrongdoer is clothed with the authority of state law.’” 

Redding v. St. Eward, 241 F.3d 530, 533 (6th Cir. 2001) (quoting id. at 49). As the 

Court of Appeals stated in Waters v. City of Morristown, 242 F.3d 353, 359 (6th 

Cir. 2001),

[t]he key determinant is whether the actor intends to act in an official 

capacity or to exercise official responsibilities pursuant to state law . . . . 

Accordingly, a defendant’s private conduct, outside the course or scope of 
No. 19-3803, Newell v. Heupenbecker

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his duties and unaided by any indicia of actual or ostensible state authority, 

is not conduct occurring under color of state law.

Under this standard, Huepenbecker clearly did not shoot Newell under color 

of state law. He did not injure Newell by abusing power he possessed as a volunteer 

sheriff’s deputy, and he neither acted in an official capacity nor exercised official 

authority. The law-enforcement course was open to the public; the County did not 

authorize Huepenbecker to carry a gun; and the gun he used was not County-issued. 

Virtually anyone, County volunteer or not, could have discharged the bullet that 

struck Newell. Huepenbecker’s actions were “functionally equivalent to [those] of 

any private citizen.” Redding, 241 F.3d at 532–33 (holding that police officer did 

not act under color of state law when she called 911 during domestic dispute, even 

though she identified herself as an officer to the 911 operators). See also Waters, 

242 F.3d at 359 (holding that city alderman’s misconduct did not occur under color 

of state law because “he would have been in the same position to harass and abuse 

[the plaintiff] even if he had not been a city alderman”). Cf. Stengel v. Belcher, 

522 F.2d 438, 439, 441 (6th Cir. 1975) (affirming determination that off-duty 

officer acted under color of state law, where officer shot three men (1) while 

intervening in dispute because of a duty imposed by police department (2) with a 

gun the department required him to carry). Newell emphasizes that the County 

required Huepenbecker to complete the course. This requirement, however, is 

insufficient to justify a finding that Huepenbecker acted under color of state law.

(Page ID 726-27) (references to record omitted). The court went on to hold that, because 

Huepenbecker did not act under color of state law, the County is likewise not liable under § 1983.

We recognize that we apply de novo review to the district court’s grant of summary

judgment and the reasoning that supports it. Does 8-10 v. Snyder, 945 F.3d 951, 961 (6th Cir. 

2019) (citation omitted). However, having had the benefit of the parties’ thoughtful briefs and oral 

arguments, we are convinced that the district court reached the correct conclusion. A recent 

decision by this court only reinforces our thinking. Morris v. City of Detroit, 789 F. App’x 516 

(6th Cir. 2019). In that case, defendant Detroit police officer Jennifer Lee Adams attempted to 

collect a personal debt while on duty. An altercation ensued and defendant discharged her 

department-issued firearm. The bullet grazed one of the plaintiffs. Despite the fact that Adams was 

on duty, we upheld the district court’s grant of summary judgment to Adams because she did not 

attempt “to use her status as a police officer advantageously during the altercation.” Id. at 518. 
No. 19-3803, Newell v. Heupenbecker

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Even the use of her city-issued revolver did not transform the case into one proceeding under color 

of state law. Id. at 519. A quick comparison of Morris to the appeal before us illustrates why 

plaintiff’s federal cause of action fails. Unlike the officer in Morris, Huepenbecker used his own 

firearm and was not “on duty.” Like Officer Adams, however, Special Deputy Huepenbecker’s 

status as a government official played no role whatsoever in the events giving rise to the lawsuit. 

He had enrolled in the firearms course as a private citizen and was advancing his own interests at 

his own expense when the unfortunate accident occurred. See Waters, 242 F.3d at 359 (“Section 

1983 is generally not implicated unless a state actor’s conduct occurs in the course of performing 

an actual or apparent duty of his office, or unless the conduct is such that the actor could not have 

behaved as he did without the authority of his office.”). For all of these reasons, we hold that 

Huepenbecker did not act under color of state law and is therefore entitled to summary judgment 

on the § 1983 claim lodged against him.

Having reached this conclusion, it follows that the County is likewise entitled to summary 

judgment. If one of its employees did not commit a constitutional violation, any such claim against 

it must also fail. Morris, 789 F. App’x at 519 (holding that constitutional liability requires more 

than that the municipality employs a tortfeasor). In this case, plaintiff’s complaint included a statelaw claim for negligence that would seem to be a more appropriate avenue of redress for his 

injuries. The district court declined to retain jurisdiction over that cause of action and dismissed it 

without prejudice.

III.

The judgment is affirmed.