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ANTHONY ALLEN, Plaintiff, v. SIMON L. LEIS, JR., et al.,Defendants.
NO: C-1-00-261
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO, WESTERN DIVISION
154 F. Supp. 2d 1240; 2001 U.S. Dist. LEXIS 8416
June 14, 2001, Decided
ORDER
This matter is before the Court on Plaintiff's Motion to Certify the Class (doc. 7); Defendants' Response (doc. 15), to which Plaintiff did not file a Reply; Plaintiff's Motion for a Preliminary Injunction (doc. 8); Defendants' Response (doc. 15); Plaintiff's Reply (doc. 19); the Ohio Attorney[**2] General's Notice of Intervention and Motion to Extend the Time to File a Response Motion to Plaintiff's Motion for a Preliminary Injunction (doc. 17); Intervenor Attorney General's Post-Hearing Brief in Support of Ohio Revised Code § 341.06 (doc. 22); Defendants' Motion for Summary Judgment (doc. 18); and Plaintiff's Response (doc. 19), to which Defendants did not file a Reply.
In addition, the Court held a Hearing in this matter on Thursday, May 10, 2001 (doc. 21).
The Complaint in this case asserts a constitutional challenge to Hamilton County's application of an Ohio state statute, which allegedly permits counties and sheriff's offices throughout the state to be reimbursed by prisoners and criminal offenders for the government's confinement costs and booking fees (see doc. 1). See also Ohio Rev. Code § 341.06. The County Defendants have moved this Court for an entry of summary judgment in their favor as a matter of law (see doc. 18). We conclude that there exist genuine issues of material fact which prevents this Court from finding in favor of the County Defendants as a matter of law, and, therefore, this matter will be permitted to proceed forward to a trial on[**3] the merits.
Accordingly, for the reasons set forth below, the Court hereby DENIES Defendants' Motion for Summary Judgment (doc. 18), and a status conference is hereby SCHEDULED in this matter for the Parties in this case on Tuesday, June 19, 2001, at 3:00 P.M. [*1245]
An outline of the Court's discussion of Ohio Revised Code Section 347.06 is as follows:
I. BACKGROUND
A. An Introduction to the Parties and the Complaint
1. The Parties
2. The Complaint
B. Factual History
1. Section 341.06
2. The Attorney General's Opinion Letter
3. The Hamilton County "Pay-for-Stay" Program
4. Plaintiff's Arrest, Incarceration, and Book-in-Fee
C. Procedural History
1. Introduction
2. The Intervenor Attorney General
D. The May 10, 2001 Hearing
1. Plaintiff's Motion for a Preliminary Injuntion
2. Compensatory and Punitive Damages
3. The Intellitect Corporation
4. Waiver and Refund
5. Plaintiff's Motion for Class Certification
II. THE STANDARD OF REVIEW
III. DISCUSSION
A. Defendants' Motion for Summary Judgment
1. Introduction
2. Defendants' Arguments
3. Plaintiff's Arguments
4. The Intervenor's Arguments
B. [**4] The Court's Analyses
1. Introduction to the Parties' Claims and Defenses
2. Count I of the Complaint
3. Qualified Immunity
4. Eleventh Amendment Immunity
IV. THE COURT'S CONSTITUTIONAL REVIEW
A. Introduction
B. The Fourteenth Amendment
1. Pretrial Detainees
2. The Procedural Due Process Clause
3. The Equal Protection Clause
C. The Fourth Amendment
1. Introduction
2. The County Defendants "Seized" Plaintiff's Funds
3. Defendants' "Seizure" May Have Been Unreasonable
D. Case of James Daniel Good Realty and The Matthews' Test
1. United States v. James Daniel Good Realty
2. Matthews v. Eldrige
3. Case of Good and the Matthews' Test Favor Plaintiff
E. Ohio Revised Code Section 341.06, As Applied by Defendants
1. The Pay-for-Stay Program May Be Unconstitutional
2. Any Signed Releases or Waivers May Be Invalid
3. Defendants' Post-Deprivation Procedures Are Inadequate
F. Ohio Revised Code Section 341.06 May Be Unconstitutional
1. Introduction
2. Section 341.06 May Not Provide Adequate Due Process
3. The Uniformity Clause of the Ohio Constitution
[*1246] V. THE PULLMAN [**5] ABSTENTION DOCTRINE
A. Introduction
B. Railroad Comm'n of Texas v. Pullman Co.
C. The Pullman Doctrine May Not Be Applicable in this Case
VI. CONCLUSION
I. BACKGROUND
A. An Introduction To The Parties And The Complaint
1. The Parties
On April 5, 2001, Plaintiff, individually and on behalf of all other persons similarly situated, filed a Class Action Complaint against Defendants (doc. 1). In his Complaint, Plaintiff seeks actual and punitive damages, as well as injunctive and other equitable relief, pursuant to 42 U.S.C. § 1983, against Defendants for the alleged "violation of the rights of Plaintiff and all other class members under the Fifth Amendment to the United States Constitution, as applied to the States by the Fourteenth Amendment," in levying the cost of confinement fees upon all pretrial detainees, regardless of their innocence or guilt (Id.). The proposed class consists of all persons whose funds were confiscated before conviction under the Hamilton County Pay-for-Stay Program (Id.).
In the case at bar, Plaintiff Anthony Allen was a resident of Cincinnati, Ohio at the time of his arrest in July of 1999, and[**6] was also the sole owner of the $30.00 cash currency that was taken by the County Defendants under its "Pay-for-Stay" Program (Id.). The Pay-for-Stay Program was allegedly promulgated and enacted pursuant to Ohio Revised Code § 341.06, also known as the "Prisoner Reimbursement Policy" (Id.).
Defendant Simon L. Leis, Jr. is the duly elected and qualified Sheriff of Hamilton County, Ohio, and is believed to be one of the principal promulgators of the Pay-for-Stay Program, which results in the allegedly "unconstitutional" levying of pretrial cost of confinement fines upon prisoners, such fines are known as "Book-in-Fees" (Id.). Defendant Leis has been sued in his official capacity only (Id.).
Defendants Tom Neyer and John Dowlin, at all relevant times hereto, were and are duly elected and qualified members of the Board of County Commissioners for Hamilton County, Ohio, and are believed to be one of the principal promulgators of the Pay-for-Stay Program which results in the levying of Book-in-Fee fines upon pretrial detainees (Id.). This Court takes judicial notice that Defendants Neyer and Dowlin are sued in both their official and individual capacities and are[**7] considered to be duly elected and qualified members of the Board of County Commissioners (Id.).
In addition, pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, Todd Portune is automatically substituted for Defendant-Commissioner Bob Bedinghaus in his official capacity only, since he has succeeded Mr. Bedinghaus in public office as a newly-elected member of the Hamilton County Board of County Commissioners. However, Plaintiff's claims against Defendant Bedinghaus, in his individual capacity, are not necessarily affected by the succession in public office of now Defendant-Commissioner Todd Portune.
2. The Complaint
On April 5, 2000, Plaintiff filed this action, on behalf of himself and a proposed class of similarly situated plaintiffs, pursuant to Title 42 U.S.C. § 1983, against the above-named County Defendants. In his single-count Complaint, Plaintiff alleges that the County Defendants violated Plaintiff's constitutional rights that are secured [*1247] by the Fifth Amendment to the United States Constitution, as applied to the States by the Fourteenth Amendment, against the taking of personal property without due process of law by adopting[**8] a policy, pursuant to Ohio Revised Code § 341.06, the "Prisoner Reimbursement Policy." Section 341.06 authorizes county sheriffs to seek reimbursement from pretrial detainees and convicted prisoners related to the administrative costs of their confinement (Id.).
Jurisdiction over the sole claim of this action is conferred upon this Court by Title 28 U.S.C. §§ 1331 and 1343 (Id.). The substantive federal claim is brought by Plaintiff under 42 U.S.C. § 1983.
B. Factual History
The following facts are generally undisputed by the Parties in this case, unless otherwise noted, and are taken from the Parties' respective briefs (see docs. 1, 3, 18 & 19). The Court views these facts in a light most favorable to the non-movant party, which in this case is the Plaintiff. See Fed. R. Civ. P. 56.
1. Section 341.06
In 1996, the Ohio Legislature enacted Revised Code § 341.06, which is titled the "Prisoner Reimbursement Policy; Fees for Medical Treatment or Services." n1 The relevant portion of the statute in question reads as follows:
(A)(1) In lieu of requiring offenders to reimburse the county for[**9] expenses incurred by reason of the person's confinement under section 341.14 or 341.19 of the Revised Code, the board of county commissioners, in an agreement with the sheriff, may adopt a prisoner reimbursement policy for the jail pursuant to this section to be administered in the jail under the sheriff's direction. The sheriff may appoint a reimbursement coordinator to administer the jail's reimbursement policy.
(2) A prisoner reimbursement policy adopted under this section is a policy that requires a person confined to the jail to reimburse the county for any expenses it incurs by reason of the person's confinement in the jail, which expenses may include, but are not limited to, the following:
(a) A per diem fee for room and board of not more than sixty dollars per day or the actual per diem cost, whichever is less, for the entire period of time the person is confined to the jail . . .
(c) Reimbursement for county property damaged by the person while confined to the jail.
Rates charged shall be on a sliding scale determined by the sheriff with the approval of the board of county commissioners based on the ability of the person confined to the jail to pay and[**10] on consideration of any legal obligation of the person to support a spouse, minor children, or other dependents and any moral obligation to support dependents to whom the person is providing or has in fact provided support.
The reimbursement coordinator or another person designated by the sheriff may investigate the financial status of the confined person and obtain information necessary to investigate that status, by means that may include contacting employers and reviewing income tax records. The coordinator may work with the confined person to create a repayment plan to be implemented upon the person's release. At the end of the person's incarceration, the person shall be [*1248]presented with a billing statement signed by the sheriff.
(3) The reimbursement coordinator or another person designated by the sheriff may collect, or the sheriff may enter into a contract with one or more public agencies or private vendors to collect, any amounts remaining unpaid. Within twelve months after the date of the confined person's release, the prosecuting attorney may file a civil action to seek reimbursement from that person for any billing amount that remains unpaid. The county shall not[**11] enforce any judgment obtained under this section by means of execution against the person's homestead. . . .
(4) Any reimbursement received under division (A)(3) of this section shall be credited to the county's general fund to be used for general fund purposes. . . .
Ohio Rev. Code § 341.06(A) (West 2001).
n1 Ohio Revised Code § 341.06 was amended on September 22, 2000, but the changes in the statute at that time have no effect on the relevant facts and issues of this case (see doc. 18).
On December 3, 1998, the Board of Hamilton County Commissioners and the Hamilton County Sheriff entered into an agreement and adopted a Prisoner Reimbursement Policy (also referred to as the "Pay-For-Stay Program"), as set forth in Ohio Revised Code § 341.06(A) (see doc. 18, Ex. A). Specifically, the Prisoner Reimbursement Policy requires any person confined in the Hamilton County Justice Center ("HCJC") to reimburse Hamilton County and the Sheriff's Office for expenses incurred by reason of that person's[**12] confinement.
The expenses included a thirty-dollar ($30.00) Book-in-Fee in order to allegedly help defray a portion of the booking fee and confinement costs involved in processing pretrial prisoners, also known as pretrial detainees. The Pay-for-Stay Program and the Book-in-Fee are the primary focus of Plaintiff's Complaint, as well as the subject of Plaintiff's Motions for Class Certification (see doc. 7), Plaintiff's Motion for a Preliminary Injunction (see doc. 8), and Defendants' Motion for Summary Judgment (see doc. 18).
3. The Attorney General's Opinion Letter (doc. 18 Ex. B)
The Ohio Attorney General has issued and published a Legal Opinion Letter regarding the prisoner reimbursement policies that may be promulgated pursuant to Ohio Revised Code § 341.06 (doc. 18, Ex. B). In its March 16, 1999 Opinion Letter # 99-021 addressed to Kevin J. Baxter, Erie County Prosecuting Attorney, the Honorable Betty D. Montgomery advised that a board of commissioners may adopt a prisoner reimbursement policy, pursuant to Ohio Revised Code § 341.06, that requires a person to reimburse the county for the costs it incurs when the person is processed for confinement in[**13] the county jail. The Opinion Letter of the Attorney General specifically asserts that book-in-fees are costs of confinement, and, therefore, that book-in-fees qualify as permissible charges subject to reimbursement as stated in § 341.06.
However, Opinion Letter # 99-021 does not address the issue of whether a pretrial detainee is entitled to notice and an opportunity to be heard. Nor does the Opinion Letter answer the question as to when should such confinement costs be assessed; before or after a prisoner is convicted by a jury or pleads guilty to a criminal charge. Finally, Opinion Letter # 99-021 does not provide a method or time frame as to how or when to reimburse those detainees who are acquitted or whose charges are later dismissed.
3. The Hamilton County "Pay-for-Stay" Program (doc. 18)
The Hamilton County Prisoner Reimbursement Policy or the Pay-for-Stay Program was implemented soon after the Board of Commissioners and Sheriff Leis [*1249]agreed to its adoption (doc. 18 & Dale C. McMillian Dep.). According to the County Defendants, the Hamilton County Pay-for-Stay Program is supposed to follow the following procedure (see doc. 18).
Upon arrival at the HCJC, the[**14] pretrial detainee or prisoner is immediately taken to a booking window for initial processing. A processing clerk receives paperwork from the arresting officer and the corrections officer related to the prisoner criminal charges. The processing clerk then gives the corrections officer a form titled, a "Release of Funds Waiver" (see doc. 18, Ex. C.). At that point, the correction officer is supposed to explain the Prisoner Reimbursement Policy to the prisoner, and asks him or her to then read the Release of Funds Waiver. If the prisoner is illiterate, the corrections officer is supposed to read the Waiver aloud to the prisoner.
The corrections officer then proceeds to explain to the prisoner that a state law allows the Sheriff to require prisoners to reimburse the County for expenses associated with the costs of confinement. See Ohio Rev. Code § 341.06. The prisoner is also supposed to be informed that he or she can apply for a full refund of the Book-in-Fee if the criminal charges against him or her are ultimately dismissed in the prisoner's favor or if the prisoner is acquitted of the charges.
To apply for a refund, a prisoner is advised to bring the proper documentation[**15] to the Property Window at the HCJC. A prisoner can also receive a refund by calling the Sheriff's Office directly during normal business hours using the telephone number listed on the Release of Funds Waiver form (see doc. 18, Ex. C).
Defendants assert that a corrections officer then attempts to answer any questions that a prisoner might have regarding the Reimbursement Policy and asks the prisoner to voluntarily sign the Release of Funds Waiver. A copy of the Release of Funds Waiver is then provided to the prisoner at the point of initial intake or processing, and reads as follows:
I , have read and acknowledge that certain monies are owed for the pay-for-stay program. I authorize and grant my permission that a $30.00 booking fee and/or per diem amount to be removed from my commissary/property account, cash on hand, check or my personal credit card.
I further authorize and grant permission to the Hamilton County Sheriff to deduct the amount due from my commissary/property account for purpose of paying for the costs outlined herein including any previous costs incurred during prior incarcerations . . .
If the charges for which you were booked are dismissed[**16] or you are found not guilty of the charges, then you may be reimbursed your book-in-fee by bringing proper documentation to the Hamilton County Sheriff's Corrections Property Window (next to visiting desk), 1000 Sycamore Street, Cincinnati, Ohio 45202 (513/946-6335). Hours of operation are Monday-Friday, 8:00 A.M. to 3:00 P.M. except holidays.
(doc. 8, Ex. 2). According to Defendants, the monies collected from the Book-in-Fees are set aside in a separate account that is credited to either Hamilton County or the Sheriff's Office, and those funds are then placed in the general operating fund (doc. 8).
Next, the prisoner's personal property is placed on the processing counter and inventoried. The processing clerk logs the property as it comes across the counter and places it in a plastic bag. A receipt is generated and explained to the prisoner. The prisoner is requested to confirm the accuracy of the receipt and sign it as well.
The prisoner's "cash-on-hand" is separately inventoried on a "money form receipt." [*1250] The money form reflects the amount of cash inventoried, minus the Book-in-Fee, and is given to the prisoner to confirm its accuracy. Once again, the prisoner is asked[**17] to sign the form. The receipts are placed in the prisoner's personal property bag. The amount of the prisoner's cash that is actually applied to the Book-in-Fee is kept in a separate envelope from the prisoner's remaining cash.
The remaining cash is deposited with the County Treasurer and applied to the prisoner's inmate account. The Book-in-Fee is also deposited with the County Treasurer, however, that fee is then placed in the general operating fund and applied as reimbursement for the cost of the prisoner's confinement. It is undisputed in this case that the Book-in-Fee is separated from the remainder of a prisoner's cash and other personal items as a matter of routine during the prisoner's initial processing upon arrest at the HCJC, without the benefit of notice, a hearing, or judicial review.
At the conclusion of the prisoner's confinement in the HCJC, all personal property is returned to the prisoner at the HCJC's Property Window with their corresponding receipts, except for the $30.00 Book-in-Fee that was taken during the prisoner's initial intake processing. As stated above, if the criminal charges are dismissed or the prisoner is acquitted of the charges, then he or she[**18] may apply for a refund of the Book-in-Fee.
The refund can be requested either in-person or by telephone. According to Defendants, a great majority of the Book-in-Fee refunds are requested by telephone. Upon request of the prisoner, whose charges have either been dismissed or acquitted, the disposition of the criminal case is checked by jail employees and if it meets the required criteria, a refund check is issued from the County to the prisoner's last known address in approximately 4-6 weeks.
The Pay-for-Stay Program was originally designed by a private contractor, the "Intellitech Corporation," which according to the terms of its contract, received a 50/50 split of the "profits" until Hamilton County recouped its initial $12,000.00 investment (doc. 8). Thereafter, Intellitech would receive 70% of the profits and the County would then get 30% (doc. 8, Ex. 7).
Plaintiff further asserts that the agreement between Hamilton County and the Sheriff's Office indicates that the taking of funds from pretrial detainees are not purely at the option of the detainee, regardless of whether he or she signs a Waiver form. According to Plaintiff, the agreement states, in pertinent part:
A[**19] person confined to the County Jail shall be required to reimburse the County for any expenses incurred by reason of the person's confinement in the County Jail, which expenses may include, but are not limited to the following:
(a) a minimum Book-in-Fee of thirty dollars $30.00. (doc. 8, Ex. 1) (emphasis added). The confinement costs and processing charges are said to be subject to a sliding scale (Id.).
4. Plaintiff's Arrest, Incarceration, and Book-in-Fee
In the case at bar, on July 18, 1999, Plaintiff Anthony Allen was arrested by a Cincinnati police officer on an allegedly outstanding felony forgery warrant and transported to the HCJC immediately thereafter (see doc 1, 19 & Anthony Allen Dep.). Prior to that arrest, it is undisputed that Plaintiff had never been arrested before. Plaintiff was taken to the intake area where he was then processed into the HCJC. [*1251]
Plaintiff's personal property, including $100.00 in cash, was inventoried by a processing clerk and the corrections officer. The processing clerk separated $30.00 in cash from Plaintiff's $100.00 cash total, pursuant to the Prisoner Reimbursement Program. Plaintiff does acknowledge that he signed [**20]the Release of Funds Waiver and further identified his signature on the Waiver form (see doc. 18, Ex. C).
Plaintiff also admits that, at the time of his initial processing, he did not object to the taking of the Book-in-Fee by Defendants to any of the HCJC personnel, either verbally or in writing, at any time during his confinement in the jail. Apparently, the first time Plaintiff voiced a complaint regarding the $30.00 Book-in-Fee was immediately after he was released from the HCJC, was outside the building with his family, and apparently noticed that $30.00 from his original $100.00 in cash was not returned to him upon making bail.
The day after Plaintiff was released from the HCJC, he was advised by a Cincinnati police officer that the criminal charges filed against him would be dismissed. Apparently, while it was true that the police computer contained an entry for a "Warrant and Arrest" with Plaintiff's correct name and social security number, Plaintiff in fact had no outstanding arrest warrant and was released after his initial Arraignment.
It is undisputed by the Parties to this action that, at no time after the charges were dismissed, did Plaintiff request or apply[**21] for a refund of the Book-in-Fee from the HCJC, either in person, by mail, or by phone. It is also undisputed by either Party that, as of the day of the May 10, 2001 Hearing, Plaintiff had still not sought a refund of his Book-in-Fee, which according to Defendants, he is still eligible to receive upon his request.
Defendants assert that, whenever Plaintiff decides to apply for his refund, his $30.00 Book-in-Fee refund would be mailed to him sometime in the following 4-6 weeks. Plaintiff responds by asserting that, he is fearful of having any further contact with the HCJC based on his mistaken arrest and his experiences at the HCJC.
C. Procedural History
1. Introduction
On April 5, 2000, Plaintiff Anthony Allen filed a single-count civil Complaint in federal court against Defendants Hamilton County Sheriff Simon Leis, Jr. and the Hamilton County Board of Commissioners seeking the following forms of relief: (1) return of all confiscated funds, (2) compensatory and punitive damages, and finally, (3) attorney fees and litigation costs (see doc. 1). See also 42 U.S.C. §§ 1983 and 1988.
Shortly thereafter, Defendants filed their Answer asserting[**22] a general denial of Plaintiff's claims, as stated in his Complaint, and defending with numerous affirmative defenses in response, including the doctrine of qualified immunity and Eleventh Amendment Immunity (doc. 3). Specifically, Defendants denied "committing any wrongful or unlawful acts or omissions against Plaintiff and against all class members, as well as denying the allegations that they are responsible to Plaintiff(s) for any damages, punitive or otherwise" (Id.).
On February 28, 2001, Plaintiff filed a Motion for Class Certification, pursuant to Federal Rule of Civil Procedure 23(b)(2) and Local Rule 23.3, which this Court has not yet ruled on (doc. 7). Specifically, in his Motion, Plaintiff requests this Court to certify the following proposed class, which he describes as follows:
[*1252] All persons whose funds were confiscated before conviction under the Hamilton County Pay-for-Stay Program.
(doc. 7).
Shortly thereafter, Plaintiff also filed a Motion for a Preliminary Injunction, pursuant to 42 U.S.C. 1983, requesting this Court to require the Sheriff of Hamilton County "to cease confiscating the funds of pretrial detainees pursuant[**23] to the Defendants' Pay-for-Stay Program and to return all such confiscated sums" (doc. 8). The Court has also not ruled on Plaintiff's Motion for a Preliminary Injunction.
On April 27, 2001, Defendants filed their Response to Plaintiff's Motions for Certification and Injunction (doc. 15). In addition, Defendants followed with their own Motion for Summary Judgment as to all of the issues before this Court asserting that, there are no genuine issues of material fact and that Defendants are entitled to judgment in their favor as a matter of law (doc. 18). See Fed. R. Civ. P. 56.
On May 7, 2001, Plaintiff followed with a Reply to his Motion for a Preliminary Injunction, as well as a Response to Defendants' Motion for Summary Judgment (doc. 19).
2. The Intervenor Attorney General
In response to this Court's Leave to Intervene Order of April 25, 2001 (doc. 14), the Ohio Attorney General, the Honorable Betty D. Montgomery, filed a Notice of Intervention and Motion for Extension of Time, or in the Alternative, a Motion to File a Post-Hearing Brief (doc. 17).
Specifically, the Attorney General informed the Court that she was moving to intervene in this action, "but exclusively[**24] and expressly to defend the constitutionality of R.C. 341.06 on its face, and not to defend the Hamilton County policy. This is not to say that the Attorney General believes the Hamilton County policy to be unconstitutional, rather, the Attorney General's sole interest is to defend the facial constitutionality of R.C. 341.06, and she takes no position on any other issue in the case" (Id.). In addition, the Attorney General also requested an extension of time in which to file a memorandum in response to Plaintiff's Motion for Preliminary Injunction (Id.).
As of the date of this Order, none of the Parties to this action have filed an Objection or response brief to the Attorney General's Notice of Intervention. Therefore, the Court hereby GRANTS the Attorney General's unopposed Motion for Intervention (doc. 17), and EXTENDS the time in which the Attorney General has to file her supporting brief.
On May 23, 2001, the Intervenor Attorney General filed a Post-Hearing Brief in Support of Ohio Revised Code § 341.06 (doc. 22). Specifically, the Intervenor asserts in her brief that, if one assumes for the moment that Plaintiff is challenging the constitutionality of Ohio Revised Code[**25] § 341.06 on its face, the challenge should be dismissed for three reasons (Id.).
First, the Attorney General asserts that the proposed plaintiff's class lacks standing to challenge § 341.06 on its face. Second, the Attorney General contends that this Court should abstain from deciding the issue or certify this issue to the Ohio Supreme Court. Finally, the Attorney General maintains that the statute is constitutional under both the Due Process and Takings Clauses of the United States Constitution (Id.).
D. The May 10, 2001 Hearing
On May 10, 2001, this Court held a Hearing on all of the pending Motions before us.
1. Plaintiff's Motion for a Preliminary Injunction
During the Hearing, Counsel for Defendants drew the Court's attention to pp. 5-6 [*1253] of Plaintiff's Reply brief (doc. 19), which states, in pertinent part:
The County is now holding, and was holding at the time the complaint was filed, hundreds of thousands of dollars seized from pretrial detainees, both those who were later convicted and those who were not. Each and every one of the seizures violated the Constitution. The most direct remedy for these violations is to require the County[**26] to give the money back in all cases. The County has done so with respect to less than three per cent of the funds wrongfully seized. Plaintiff therefore does not need, nor does it any longer request, injunction or declaratory relief.
(doc. 19 at 5-6) (emphasis added). Plaintiff's Counsel then informed the Court that Plaintiff was withdrawing his Motion for a Preliminary Injunction at this time for the reasons stated in his Reply brief (Id.).
Therefore, the Court hereby DENIES WITHOUT PREJUDICE Plaintiff's Motion for a Preliminary Injunction against the County Defendants (doc. 8).
2. Compensatory and Punitive Damages
During the Hearing, Counsel for Defendants drew the Court's attention to p. 15 of Plaintiff's Reply brief (doc. 19), which states, in pertinent part:
The County makes only a "clearly established" argument (Doc. 15 at 32), and does not deal with the fact that Plaintiff and the class members primarily wish to have their money returned and do not claim damages from the pockets of any of the Defendants. In such an instance, the doctrine of qualified immunity does not apply.
(doc. 19 at 15) (emphasis added). Plaintiff's Counsel[**27] then informed the Court that Plaintiff was withdrawing his requested relief for compensatory and punitive damages in this case, and now only seeks an Order of Restitution to reimburse Plaintiff for the "confiscated funds" that were taken by Defendant (see doc. 1).
Therefore, the Court hereby DISMISSES WITHOUT PREJUDICE Plaintiff's requested claims of relief for compensatory and punitive damages against the County Defendants (Id.).
3. The Intellitect Corporation
During the Hearing, Counsel for the County Defendants informed the Court that the Intellitect Corporation was no longer collecting the Book-in-Fees for Hamilton County, but rather that the Sheriff's Office had taken over those previously contracted tasks completely and that the funds collected were now placed in either the Sheriff's Office or the County's general operating fund.
4. Waiver and Refund
Counsel for Defendants admitted during the Hearing that, even if a pretrial detainee was unwilling to sign the Waiver form, which "voluntarily" transfers the $30.00 Book-in-Fee from the detainee to the care of the Sheriff's Office, the $30.00 would, nonetheless, be taken by the HCJC personnel during[**28] the initial processing procedure. In addition, Counsel for Defendants was unable to provide the Court any details as to the general operating fund, how the detainee-collected funds are separated from the other operating fund monies, the percentage of Book-in-Fee refunds that goes uncollected, what efforts are made to locate a detainee who has not claimed his funds, as well as other details of the Pay-for-Stay Program.
Plaintiff's Counsel informed the Court that the reason that Plaintiff did not pursue his refund was because he was fearful of returning back to the HCJC, and that he did not want to have any further contact with the HCJC in order to secure his [*1254] $30.00 Book-in-Fee fees that were collected during his July 1999 arrest. Defendants assert the defense of waiver against Plaintiff for his failure to pursue his post-deprivation remedies.
5. Plaintiff's Motion for Class Certification
During the Hearing, the Court informed the Parties that once we decide the issues regarding Defendant's Motion for Summary Judgment (doc. 18), then, if still needed, we will address Plaintiff's Motion for Class Certification and schedule a status conference at a later date.
Therefore, [**29] the only issues that will be addressed in this Order are those put forth in Defendants' Motion for Summary Judgment (see doc. 18), Plaintiff's Response (see doc. 19), the Intervenor's Post-Hearing Brief (doc. 22), and those related arguments that were presented by the Parties at the May 10, 2001 Hearing in regard to Defendants' Motion for Summary Judgment (see doc. 21).
II. THE STANDARD OF REVIEW
The narrow question that we must decide on a motion for summary judgment is whether there exists a "genuine issue as to any material fact and [whether] the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The Supreme Court elaborated upon the appropriate standard in deciding a motion for summary judgment as follows:
The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).[**30]
The moving party has the initial burden of showing the absence of a genuine issue of material fact as to an essential element of the non-movant's case. Id. at 321; Guarino v. Brookfield Township Trustees, 980 F.2d 399, 405 (6th Cir. 1992); Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989). If the moving party meets this burden, then the non-moving party "must set forth specific facts showing there is a genuine issue for trial." Fed. R. Civ. P. 56(e); see Guarino, 980 F.2d at 405.
As the Supreme Court stated in Celotex, the non-moving party must "designate" specific facts showing there is a genuine issue for trial. Celotex, 477 U.S. at 324; Guarino, 980 F.2d at 405. Although the burden might not require the non-moving party to "designate" facts by citing page numbers, "'the designated portions of the record must be presented with enough specificity that the district court can readily identify the facts upon which the non-moving party relies.'" Guarino, 980 F.2d at 405 (quoting InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989),[**31] cert. denied, 494 U.S. 1091 (1990)).
Summary judgment is not appropriate if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Conclusory allegations, however, are not sufficient to defeat a motion for summary judgment. McDonald v. Union Camp Corp., 898 F.2d 1155, 1162 (6th Cir. 1990).
III. DISCUSSION
A. Defendants' Motion For Summary Judgment (doc. 18)
1. Introduction
On May 1, 2001, Defendants filed their Motion for Summary Judgment, and now [*1255]move this Court for a finding of summary judgment against Plaintiff's claim for an Order of Restitution in regard to the $30.00 in cash currency that was taken during his arrest, as well as Plaintiff's attempt to get the Pay-for-Stay Program, Book-in-Fee, and Ohio Revised Section § 341.06, as applied, to be declared unconstitutional by this Court (doc. 18). Defendants also assert that they are not liable for Plaintiff's claims due to the defenses of qualified immunity and Eleventh Amendment Immunity (Id.).
The Parties to this case[**32] have informed the Court that their research indicates that the issue of a county or sheriff's office promulgation and implementation of a state's prisoner reimbursement policy in regard to the pre-hearing attachment by a governmental body of cash brought in the jailhouse by pretrial detainees, may well be a case of first impression in this Circuit as well as a case of first impression in any other federal court as well. The Court notes that we too have not found any authority on point which deals directly with the due process implications of a pre-hearing attachment by a governmental body of cash brought in the jailhouse in relation to pretrial detainees.
2. Defendants' Arguments
Defendants' arguments can be summarized as follows (doc. 18). First, Defendants assert that Plaintiff has failed to state a claim for which relief could be granted under 42 U.S.C. § 1983 (doc. 18). See Fed. R. Civ. P. 12(b)(6). Specifically, Defendants assert that Plaintiff's failure to prove a constitutional violation, an essential element in a § 1983 action, renders all other "facts" immaterial. Defendants argue that, since Plaintiff did not and cannot establish that[**33] he suffered a constitutional deprivation, his § 1983 action must be dismissed and summary judgment must be granted in favor of Defendants.
Second, Defendants allege that there has been no deprivation of property whatsoever in this case, and certainly no deprivation of property without due process of law. Specifically, Defendants allege that there has not been a constitutional "taking" in violation of the Fifth Amendment, as applied to the States through the Fourteenth Amendment. Furthermore, Defendants argue that, even if there was a constitutional taking, there has been no deprivation of property without due process of law, and, therefore, summary judgment must be granted in favor of Defendants.
Third, Defendants contend that they are entitled to qualified immunity. Specifically, Defendants contend that, given the state of the evidence in this case and the state of the relevant statutory interpretation and case law from 1996 to the present, Defendants are entitled to qualified immunity from suit as to Plaintiff's individual § 1983 claim against the County Defendants.
Fourth, Defendants maintain that they are also entitled to Eleventh Amendment Immunity. Specifically, Defendants[**34] maintain that, under the circumstances of this case, Defendants are considered to be state actors for liability purposes under 42 U.S.C. § 1983, and are, therefore, entitled to immunity from liability for damages under the Eleventh Amendment.
Finally, Defendants request that, if this Court questions the constitutionality of the Hamilton County Pay-for-Stay Program or Ohio Revised Code § 341.06, then Defendants move that this Court abstain from deciding that issue and certify the question to the Ohio state courts for their interpretation of this state statute, as well as Defendants' application of that statute.
3. Plaintiff's Arguments
Plaintiff filed his Response on May 7, 2001 asserting several reasons as to why [*1256] this Court should rule in his favor in regard to the proposed Order of Restitution for the confiscated $30.00 in cash, as well as Plaintiff's request for this Court to find, as a matter of law, that the Hamilton County Sheriff's Office Pay-for Stay Program is unconstitutional, as applied (doc. 19).
First, Plaintiffs assert that federal abstention is inappropriate under the circumstances of this case. Specifically, Plaintiff argues that[**35] there is simply no way an Ohio court will ever have an opportunity to pass on the constitutionality of Defendants' policy, since neither Plaintiff nor any of the class members had or would ever have the time to appeal in state court, between the confiscation of their funds and their release from jail, without having been charged or found guilty in order to meet the jurisdictional requirements that are necessary to go through the prison grievance system in order to reach the Ohio state courts.
According to Plaintiff, Defendants have admitted that, if the former detainees are lucky enough to receive a receipt and have the time and competence to follow the instructions on it, the former detainees would have to wait several weeks before receiving their expected refunds in the mail. Therefore, Plaintiff argues that a state court lawsuit concerning the constitutionality of the seizure of funds is unlikely, if not impossible, and Defendants have not pointed out any authority to the contrary.
Second, Plaintiff contends that there has been a constitutional "taking" by Defendants in this case of his $30.00 Book-in-Fee. In fact, Plaintiff contends that Defendants have already admitted that[**36] they "separated $30.00 from Plaintiff's property on July 18, 1999, and that the prisoner's cash that is applied to the Book-in-Fee is kept in a separate envelope . . ., deposited with the county treasurer, and applied as reimbursement for the cost of the prisoner's confinement" (see doc. 15) (emphasis added). Plaintiff argues that Defendants have failed to explain how this is not a constitutional "taking" of property.
Third, Plaintiffs maintain that the Ohio Legislature has granted all prisoner's the right to a hearing in front of a judge before that person is required to reimburse the incarcerating authority for any costs of confinement. See Ohio Rev. Code §§ 341.14 & 341.19. According to Plaintiff, § 341.06 neither requires nor authorizes Defendants to seize and attach an amount equal to the Book-in-Fee, or any other cost of incarceration, prior to a notice and a hearing.
Moreover, Plaintiff maintains that Defendants' position ignores the mandates of the Ohio Legislature as set forth in two other statutory provisions, one for felonies and one for misdemeanors, each of which expressly requires a hearing before any order of reimbursement is made (Id.).
For example, [**37] Ohio Revised Code § 2929.223(A)-(B) provides for reimbursement of costs for felonies, while a similar provision is applicable for those prisoners who are convicted of a felony are found in Ohio Revised Code § 2929.18(A)(4)b)(i). These statutes require reimbursement of a county "for its expenses incurred by reasons of the prisoner's confinement" to be imposed by a court of law, and not by a county government or sheriff's office (Id.).
Fourth, Plaintiff asserts that, even without a state created property interest, due process is violated by a pre-hearing attachment of funds in these circumstances. Specifically, Plaintiff argues that the County Defendants would have this Court believe "it is playing fair" by requiring a released and innocent former detainee to return downtown to the courthouse with the proper paperwork to obtain his or her own money, taken out of his or her pocket and averaging $9.35 per taking. [*1257]
Therefore, Plaintiff argues that the only rational way to comport with due process in the situation before this Court is for Defendants to refrain from its allegedly "unconstitutional pre-hearing attachments" and to follow the Ohio statutory provisions, which require[**38] a hearing before a judge in order to determine whether or when reimbursement should occur, as well as the amount of such reimbursement. See Ohio Rev. Code §§ 2929.223 & 2921.18. Plaintiff maintains that this will eliminate the persistent unconstitutional taking of money from innocent persons, a result that allegedly far outweighs the few dollars Defendants would lose if they are prohibited from "separating" cash from its "innocent-until-proven guilty" pretrial detainee jail population.
Fifth, Plaintiff contends that qualified immunity is inappropriate where, as here, no civil damages are sought and a state statute grants an express right to a hearing. Specifically, Plaintiff argues that the County Defendants knew, as does everyone else, that the unconstitutional taking of private property, by the very words of the Fourteenth Amendment, is not to be accomplished by the State without giving the process that is constitutionally due. Therefore, Plaintiff contends that since Defendants have given no due process whatsoever in this case, Defendants cannot now hide behind a shield of ignorance, in the form of qualified immunity.
Sixth, Plaintiff maintains that Eleventh Amendment Immunity[**39] is not applicable when the State Treasury is not implicated and when the county officials involved are not acting on behalf of the State. Specifically, Plaintiff maintains that any money recovered by Plaintiff would come from the Hamilton County Treasury, and not the Treasury of the State of Ohio, since it is the County's expenses which are being reimbursed.
According to Plaintiff, not only were these Defendants not agents of the State in setting up and enforcing their allegedly unconstitutional policy, they were also acting contrary to avowed State policy. Therefore, Plaintiff concludes his arguments by asserting that the Eleventh Amendment cannot insulate their actions in these circumstances.
4. The Intervenor's Arguments (doc. 22)
On May 23, 2001, the Intervenor Attorney General filed a Post-Hearing Brief in Regard to Defendants' Motion for Summary Judgment in which she asserts three arguments in support of the facial constitutionality of Ohio Revised Code § 341.06 only (doc. 22).
First, the Intervenor asserts that Plaintiff lacks standing to challenge § 341.06 since he cannot put forth sufficient facts to establish that § 341.06 will harm him in any way in the[**40] future. However, the Court notes that the Intervenor does not address the issue of whether that harm is likely to be repeated again and again in the future against other potential plaintiffs.
Second, the Intervenor contends that, even if we find that Hamilton County and the Sheriff's Office acted unconstitutionally in promulgating and formulating their Pay-for- Stay Program, we should, nonetheless, abstain from ruling on any facial challenge to § 341.06, and/or instead, certify this issue to the Ohio Supreme Court for its review of a state statute. However, the Court notes that the Intervenor does not take any position in regard to supporting or challenging the County Defendants' application of § 341.06 in this case.
Third, the Intervenor argues that § 341.06 on its face does not violate the Due Process Clause to the Constitution. However, the Court also notes that all of [*1258] the arguments and cases the Intervenor puts forth in support of this contention do not address the specific issue of pretrial detainees who are deprived of a property right by a countywide policy and are not given notice and an opportunity to be heard. The arguments and cases put forth in the Intervenor's Brief[**41] all dealt with convicted prisoners, who presumably already had notice and a hearing before any deprivation took place by the governmental defendants.
B. The Court's Analyses
1. Introduction to the Parties' Claims and Defenses
This is an action brought, pursuant to 42 U.S.C. § 1983, challenging the constitutionality of Ohio Revised Code § 341.06, as applied by the County Defendants in this case.
In the case at bar, there are essentially six issues that are before this Court: (1) Whether, pursuant to Rule 56 of the Federal Rules of Civil Procedure, there exist any genuine issues of material fact that would preclude this Court from rendering a final judgment in this case? (2) If not, are Defendants entitled to judgment in their favor as a matter of law? (3) Is Ohio Revised Code § 341.06 being applied in an unconstitutional manner by the Hamilton County Sheriff's Office and the Board of County Commissioners? (4) If so, what is the appropriate remedy or should this Court abstain from rendering a decision in this matter, and, instead, certify this issue to the Ohio Supreme Court? (5)Is Ohio Revised Code § 341.06 unconstitutional on its face? (6) [**42] If so, what is the remedy or should this Court abstain and certify this issue?
Having reviewed this matter, the Court makes the following preliminary findings in regard to the questions presented to us. First, there do exist several genuine issues of material fact that have not been answered by the Parties in their respective memoranda of law, as well as during the May 10th Hearing, which prevent this Court from making a conclusive finding in favor of one Party or the other.
Second, having found that there exist several issues of material fact, we also must find that, at this stage of the litigation, Defendants are not entitled to judgment in their favor as a matter of law.
Third, the Court makes a preliminary finding that the Hamilton County Sheriff's Office Pay-for-Stay Program may be unconstitutional as it is now applied and implemented, in general, as well as possibly unconstitutional as it was specifically applied in the case of Plaintiff Anthony Allen. However, this Court also finds that because there exist genuine issues of material facts at this stage of the litigation, it would be premature to make a final holding as to unconstitutionality of the Hamilton County Pay-for-Stay[**43] Program as a matter of law.
Fourth, the Court also makes a preliminary finding that Ohio Revised Code § 341.06 may be unconstitutional as applied and on its face as well, but the Court will reserve final judgment as to the appropriate remedies in this case and the issue of abstaining in favor of a state court's interpretation at this time. The reasons for the Court's findings will be explained more fully in the following sections.
Finally, we also find that "the distinction between convicted prisoners and pretrial detainees bears greatly on the assessment of the constitutionality of the conditions of incarceration." Cudnik v. Kreiger, 392 F. Supp. 305, 310 (N.D. Ohio 1974) (holding that the refusal by defendants to permit pretrial detainees, who were undergoing methadone treatment for drug addiction prior to their detention the right to continue methadone treatment during pretrial detention, denied those detainees due process). [*1259] Therefore, we do not find prisoner reimbursement policy cases that do not apply to pretrial detainees particularly helpful in our analysis of Plaintiff's allegations of property deprivation without a predeprivation notice and a hearing by[**44] the County Defendants.
Here, the class which Plaintiff wishes to represent consists only of pretrial detainees who are, as a fundamental constitutional tenet, presumed innocent of any wrongdoing. See Cudnik, 392 F. Supp. at 310 (citing In re Winship, 397 U.S. 358, 363, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970)). Therefore, any constitutional "taking" by Defendants must adhere to the constitutional prerequisite of notice and an opportunity to be heard or a voluntary and informed waiver. However, if a negligent, reckless, or intentional taking takes place by an agent of Defendants, then and only then, is an adequate post-deprivation remedy constitutionally acceptable in this case. See Parratt v. Taylor, 451 U.S. 527, 537-38, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981) overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 330, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986) ("This Court has never directly addressed the question of what process is due a person . . . when an employee of the State negligently takes [a plaintiff's] property. . . . [In all prior cases,] the deprivation of property was authorized[**45] by an established state procedure and due process was held to require predeprivation notice and hearing in order to serve as a check on the possibility that a wrongful deprivation would occur.") (emphasis added). n2
n2 Daniels overruled Parratt only to the extent that the earlier case held that a mere lack of due care may deprive an individual of "life, liberty, or property under the Fourteenth Amendment." Daniels, 474 U.S. at 330-31.
2. Count I of the Complaint.
a. The County Defendants' Liability
In the case at bar, Plaintiff has sued all of the County Defendants in their official capacity (see doc. 1). Unlike States, municipal corporations and local governments are "persons" within the meaning of 42 U.S.C. § 1983, and are not, therefore, wholly immune from suit. See Monell v. Department of Soc. Servs. of the City of New York, 436 U.S. 658, 690, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). A governmental entity may not be held liable[**46] under § 1983 for an employee's conduct on the basis of respondeat superior. Monell, 436 U.S. at 691. Rather, plaintiffs must show that the government entity itself is the wrongdoer. Collins v. City of Harker Heights, 503 U.S. 115, 122, 117 L. Ed. 2d 261, 112 S. Ct. 1061 (1992).
In essence, "official capacity suits . . . represent only another way of pleading an action against an entity of which an officer is an agent." Kentucky v. Graham, 473 U.S. 159, 165, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (citing Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 691 n.55, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978)). "A suit against an individual in his official capacity is the equivalent of a suit against the governmental entity." Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994). Specifically, a section 1983 action against a city official in his or her official capacity is treated as an action against the City entity itself. Baker v. McCollan, 443 U.S. 137, 61 L. Ed. 2d 433, 99 S. Ct. 2689 (1979).
Accordingly, for the purposes of the official capacity claims herein, Hamilton County is the only true Defendant at issue[**47] in this case.
In contrast, "personal-capacity suits" seek to impose personal liability upon a government official for actions the official takes under color of state law. See Scheuer v. Rhodes, 416 U.S. 232, 237-38, [*1260] 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). In the case at bar, only the Board of County Commissioners are sued in their respective individual capacities (see doc. 1). However, during the Hearing, Counsel for Plaintiff advised the Court that Plaintiff was no longer seeking compensatory and punitive damages against any of the listed County Defendants in this case. Therefore, this appears to be a moot issue at this point of the litigation, but, nonetheless, we will proceed to address the merits of this issue.
As long as the governmental entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than the name, to be treated as a suit against the entity. Brandon v. Holt, 469 U.S. 464, 471-472, 83 L. Ed. 2d 878, 105 S. Ct. 873 (1985). "Thus, while an award of damages[**48] against an official in his personal capacity can be executed only against the official's personal assets, a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself." Graham, 473 U.S. at 166.
The Court views Plaintiff's sole claim as an action against the County Defendants, who are the official and duly elected agents of Hamilton County, Ohio. Plaintiff's Counsel informed the Court during the Hearing and in his Response that Plaintiff was now only seeking a Declaratory Judgment Order and Order of Restitution in this case.
Specifically, Plaintiff asks this Court to declare the Hamilton County Pay-for-Stay Program unconstitutional, move for the Court to order the County Defendants to return Plaintiff's $30.00 Book-in-Fee, and certify a class action for all other similarly situated plaintiff's who were directly affected by this allegedly unconstitutional Program.
b. Title 42 U.S.C. § 1983
Title 42 U.S.C. § 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or[**49] Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Id.; see also Board of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 402-403, 137 L. Ed. 2d 626, 117 S. Ct. 1382 (1997).
To establish a claim under § 1983, two elements are required: (1) conduct committed by a person acting under the color of state law that (2) deprives plaintiffs of the rights, privileges, or immunities that are secured by the United States Constitution or the laws of the United States. Gomez v. Toledo, 446 U.S. 635, 640, 64 L. Ed. 2d 572, 100 S. Ct. 1920 (1980); Sargi v. Kent City Board of Educ., 70 F.3d 907, 910 (6th Cir. 1995).[*1261]
The Parties to this action do not dispute the fact that the County Defendants were acting under the "color of state law" when promulgating and implementing the Pay-for-Stay Program, as well as when the HCJC, [**50] under the direction of the Sheriff's Office, removed the $30.00 in cash from Plaintiff's person during his July 18, 1999 arrest in Cincinnati, Ohio. The only question remaining under § 1983 is, "Did Defendants also deprive Plaintiff of certain rights, privileges, or immunities secured by the Constitution or the laws of the United States?"
The Parties to this action do not dispute the fact that the Book-in-Fee was derived from the Pay-for-Stay Program that was promulgated and implemented by the County Defendants.
3. Qualified Immunity
Qualified immunity protects an official from liability only in his personal capacity. Owen v. City of Independence, 445 U.S. 622, 63 L. Ed. 2d 673, 100 S. Ct. 1398 (1980). In the Complaint, Plaintiff asserted a federal civil rights claim against the Board of Commissioners in both their individual and official capacities (doc. 1). However, even if a plaintiff only prevails against an official in his official capacity, individual liability may not be imposed on the named official. Kentucky v. Graham, 473 U.S. 159, 166, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985). In the case at bar, the County Defendants have[**51] moved for summary judgment on the ground that they are immune from individual liability under 42 U.S.C. § 1983 (doc. 18) due to the doctrine of qualified immunity.
The Court notes that § 341.06, the "Prisoner Reimbursement Policy," was enacted by the Ohio Legislature in 1996. It is undisputed that the County Defendants promulgated and implemented the Pay-for-Stay Program in response to that statute on December 3, 1998 (doc. 18, Ex. A). In addition, on March 16, 1999, the Attorney General's Office drafted and distributed an official Opinion Letter # 99-021 supporting the Erie County, Ohio version of the Prisoner Reimbursement Program (Id., Ex. B).
Furthermore, all of the Parties to this litigation assert that this is possibly a case of first impression in the nation in regard to deciding the constitutionality of a Prisoner Reimbursement Program that is applied to a pretrial detainee, without an opportunity for notice and a hearing. In fact, every other case that this Court has reviewed on this subject involves convicted prisoners, parolees, or probation offenders who have already had a measure of due process before the taking, seizure, or attachment of[**52] funds was allowed to take place. See Tillman v. Lebanon County Correctional Facility, 221 F.3d 410, 422-24 (3d Cir. 2000) (holding that a fee of approximately $ 4,000.00 imposed on an inmate for housing costs incurred at a Pennsylvania state prison did not deny the inmate due process or deprive him of equal protection).
In addition, in his Complaint, Plaintiff has not made any allegations of bad faith or malice in regards to the actions of the County Defendants in promulgating and implementing the Pay-for-Stay Program. Therefore, the Court cannot find that the County Defendants' promulgation and implementation of the Pay-for-Stay Program violated clearly established statutory or constitutional rights of which a reasonable person would have known would be invalid or unconstitutional.
Whether or not qualified immunity exists in a given case is a legal question for the court, unless there is a genuine issue of material fact regarding whether the defendant actually committed the acts that would violate a clearly established right. See Monday v. Oullette, 118 F.3d 1099, 1102 (6th Cir. 1997). The plaintiff bears the ultimate burden of proof to establish[**53] that the defendant is not entitled to qualified immunity. See Wegener v. City of Covington, 933 F.2d 390, 392 (6th Cir. 1991). Plaintiff has not met his burden in this case for another reason as well.
As stated earlier, Plaintiff's Counsel has asserted that Plaintiff is no longer seeking compensatory and punitive damages in this case. Therefore, we must assume that the named County Defendants are being sued in their official capacity only in order to seek an Order of Restitution and a Declaratory [*1262]Judgment finding that the Hamilton County Pay-for-Stay Program and the Book-in-Fee are unconstitutional.
Accordingly, Defendants' Motion for Summary Judgment in regard to the defense of qualified immunity is hereby GRANTED (doc. 18).
4. Eleventh Amendment Immunity
The Eleventh Amendment provides:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any foreign State.
U.S. Const. amend. XI.
"Although by its terms, the [Eleventh] Amendment applies only to suits against a State by[**54] citizens of another State, our cases have extended the Amendment's applicability to suits by citizens against their own States." Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 121 S. Ct. 955, 961-62, 148 L. Ed. 2d 866 (2001); see also Kimel v. Florida Bd. of Regents, 528 U.S. 62, 145 L. Ed. 2d 522, 120 S. Ct. 631 (2000); College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 627, 659-60, 144 L. Ed. 2d 575, 119 S. Ct. 2199 (1999); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54, 134 L. Ed. 2d 252, 116 S. Ct. 1114 (1996); Hans v. Louisiana, 134 U.S. 1, 15, 33 L. Ed. 842, 10 S. Ct. 504 (1890). "The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private individuals in federal court." Garratt, 121 S. Ct. at 962; see also Kimel, 528 U.S. at 73. The Court takes note of the fact that the State of Ohio is not listed in the Complaint as a named-Defendant in this case (see doc. 1)
A few years ago, the Supreme Court revisited its method for determining whether the Eleventh[**55] Amendment bars actions against certain entities of the State. In Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 115 S. Ct. 394, 130 L. Ed. 2d 245 (1994), the Court considered whether the Eleventh Amendment prevented an action under the Federal Employers' Liability Act against the Port Authority of New York and New Jersey. The facts differed considerably from the case at bar, but the legal rule applies here, nonetheless.
Justice Ginsberg, writing for the Court, emphasized one core issue: "Will a State pay if the defendant loses?" See Hess, 513 U.S. at 48, 115 S. Ct. at 394 ("Courts of Appeals have recognized the vulnerability of the State's purse as the most salient factor in Eleventh Amendment determinations."). In the case at bar, this Court finds the Sixth Circuit Court of Appeals case of Brotherton v. Cleveland, 173 F.3d 552, 560 (1999) to be instructive and helpful in relation to the facts before us.
In Brotherton, a man's family alleged that there was a violation of their due process rights because the man's corneas were removed by the county coroner without the man's consent, or without the consent of the[**56] decedent's surviving next of kin. Id., 173 F.3d at 557. Specifically, in Brotherton, Dr. Cleveland, the Hamilton County Coroner, removed the corneas from dead bodies pursuant to an internal policy and procedure by the Coroner's Office to remain deliberately ignorant of the wishes of the deceased's next of kin. Id. This policy was derived from an interpretation of Ohio law. Id. The Sixth Circuit ultimately held that the county coroner was not a state actor, but a county actor, and, therefore, he and the county defendant were not entitled to Eleventh Amendment Immunity. Brotherton, 173 F.3d at 561-62.[*1263]
In the case at bar, whether we view as dispositive Hess's emphasis on the state treasury, or interpret it as placing significant weight on one factor of a multi-factor test, see, e.g., Harter v. Vernon, 101 F.3d 334, 338 (4th Cir. 1996), we conclude that the County Defendants may not properly invoke the Eleventh Amendment. See Brotherton, 173 F.3d at 561-62 (affirming the Order of this District Court that the Eleventh Amendment does not bar Plaintiff Brotherton's claims against the Defendant eye bank association, [**57] and concluding that the county coroner, Dr. Cleveland, acted as a county, and not a state official).
The rationale of Hess suggests that the Eleventh Amendment does not bar this action as well; because Hamilton County -- rather than the State of Ohio -- would satisfy any money judgment against the Sheriff and the Commissioners, therefore, this case also does not implicate the Eleventh Amendment. See Hess, 513 U.S. at 50; see also Brotherton, 173 F.3d at 563. The factors in the multi-part tests, whether modified or supplanted by Hess, point to a similar result.
Each factor militates against the County Defendants, who are duly elected county officials, who act autonomously with no State oversight, funded by Hamilton County, which presumably will bear financial responsibility for the judgment, and defended by attorneys from the County, and not from the State. See Brotherton, 173 F.3d at 563.
In particular, we find that Ohio law may have permitted Sheriff Leis to receive reimbursement for incarceration expenses from the prisoners in his care, however, it did not prescribe a specific policy as to how, when, or how much to charge[**58] those incarcerated with such expenses.
In fact, Judge Easterbrook of the Seventh Circuit held that, where Illinois law afforded discretion to a county official charged with enforcing its commands, the defendant acted as a county, not a state, official, and thus, could not invoke the protection Eleventh Amendment. See Ruehman v. Sheahan, 34 F.3d 525, 529 (7th Cir. 1994); see also Brotherton, 173 F.3d at 565.
We find that the Seventh Circuit case of Ruehman comports with the Sixth Circuit case of Brotherton and several other similar decisions regarding county officials sued under § 1983. Id., 173 F.3d at 567 (holding that the county coroner was not entitled to Eleventh Amendment Immunity because he was not an agent of the State).
Where county officials are sued simply for complying with state mandates that afford no discretion, they act as an arm of the State. See, e.g., Bethesda Lutheran Homes and Servs., Inc. v. Leean, 154 F.3d 716, 718 (7th Cir. 1998) ("When the municipality is acting under compulsion of state or federal law, it is the policy contained in that state or federal law, rather than anything [**59]devised or adopted by the municipality, that is responsible for the injury."); Scott v. O'Grady, 975 F.2d 366, 371 (7th Cir. 1992) (holding that the county official acted as an arm of the State where the official merely executed a writ pursuant to his non-discretionary duty); Echols v. Parker, 909 F.2d 795, 801 (5th Cir. 1990) (finding that local officials acted as State agents when they enforced a State anti-boycott statute by prosecuting boycotters).
In contrast, this case implicates Sheriff Leis and the Commissioners in their official policymaking capacity. See Brotherton, 173 F.3d at 566. Rather than merely enforcing prescribed Ohio law, the County Defendants voluntarily implemented a Pay-for-Stay Program and they chose the means of enforcing this Program using the Book-in-Fee guidelines. Id.
The essential question we must ask is, "Whether the County Defendants could [*1264]have chosen not to use their authority under the State statute and how much discretion they had in using such State-sponsored authority?" According to the Intervenor, the County Defendants were not mandated to implement § 341.06 and the statute was considered[**60] permissive in its application. Therefore, it appears that the County Defendants acted as agents for the County and not for the State of Ohio.
If the County Defendants could have opted to act differently, or not to act, they did not act as an arm of Ohio when the Defendants formulated and implemented the Hamilton County Pay-for-Stay Program. "This distinction reconciles Garner v. Memphis Police Department, 8 F.3d 358 (6th Cir. 1993) and Pusey v. City of Youngstown, 11 F.3d 652 (6th Cir. 1993), and accords with Ruehamn and other views." Brotherton, 173 F.3d at 566.
Ohio law allowed the County Defendants to implement a prisoner reimbursement policy in the course of their actions as agents of Hamilton County, but it did not dictate a method. Sheriff Leis, acting without state compulsion, chose to implement this state statute using the Pay-for-Stay Program with the active involvement, participation, or acquiescence of the Hamilton County Board of Commissioners. Therefore, all of the named Defendants acted as agents of Hamilton County, not of the State of Ohio.
Accordingly, the Eleventh Amendment does not prevent this Court from [**61]exercising jurisdiction over Plaintiff's claims against all of the County Defendants in their official capacities as the Sheriff and Commissioners of Hamilton County. See Brotherton, 173 F.3d at 567.
In addition, since Plaintiff has conceded the fact that he is no longer seeking compensatory or punitive damages, the State's fisc or tax dollars are not at stake. Plaintiff only wants an Order of Restitution seeking the return of his $30.00 Book-in-Fee. At this point of the litigation, Plaintiff is only asking for his money back and possibly those funds taken from other similarly situated plaintiffs. Such an Order of Restitution should only impinge the County's general operating fund and not that of the State of Ohio in returning Plaintiff's funds, and not the taxpayers of Ohio or of Hamilton County.
Furthermore, Hamilton County cannot be said to be prejudiced by a denial of Eleventh Amendment Immunity, since Plaintiff is only asking for the return of his funds, which Defendants have already stated that Plaintiff is entitled to receive as soon as he is willing to apply for a refund. Therefore, this Court hereby DENIES Defendants' Motion for Summary Judgment in regard[**62] to Defendants' assertion of Eleventh Amendment Immunity (doc. 18).
IV. THE COURT'S CONSTITUTIONAL REVIEW
A. Introduction
The United States Supreme Court has rejected the view that the applicability of one constitutional Amendment preempts the guarantees of another. As explained in Soldal v. Cook County, 506 U.S. 56, 70, 121 L. Ed. 2d 450, 113 S. Ct. 538 (1992):
Certain wrongs affect more than a single right and, accordingly, can implicate more than one of the Constitution's commands. Where such multiple violations are alleged, we are not in the habit of identifying as a preliminary matter the claim's dominant character. Rather, we examine each constitutional provision in turn.
Soldal, 506 U.S. at 70. Here, as in Soldal, the seizure of property implicates two, "explicit textual source[s] of constitutional protection," the Fourth Amendment and the Fifth Amendment, as [*1265] applied to the States through the Fourteenth Amendment.
The proper question is not which Amendment controls but whether any of the Constitutional Amendments are violated. "So even assuming that the Fourth Amendment was satisfied in this case, it[**63] remains for us to determine whether the seizure complied with our well-settled jurisprudence under the Due Process Clause." United States v. James Daniel Good Real Property, 510 U.S. 43, 52, 126 L. Ed. 2d 490, 114 S. Ct. 492 (1993).
In the following sections, this Court will address several of the potential constitutional problems that now exist in regard to Defendants' Pay-for-Stay Program and which prevents this Court finding in favor of Defendants as a matter of law.
B. The Fourteenth Amendment
1. Pretrial Detainees
"The Eighth Amendment standards which prohibit cruel and unusual treatment of prisoners have doubtful applicability to pretrial detainees, for the state may subject an individual to punishment only after conviction of a crime." Cudnik v. Kreiger, 392 F. Supp. 305, 310-11 (N.D. Ohio 1974) (Battisti, C.J.) (citing Johnson v. Glick, 481 F.2d 1028, 1032 (2d Cir. 1973)); see also Rhem v. Malcolm, 371 F. Supp. 594, 623-24 (S.D.N.Y. 1974). "Since an unconvicted individual may not be punished by the state, it follows that a proper analytical framework for the assessment of conditions of pretrial[**64] detention is the due process clause." Cudnik, 392 F. Supp. at 311. In the case at bar, it is undisputed by either Party to this action that, from the day of his arrest on July 18, 1999, until the day his charges were dismissed, Plaintiff Anthony Allen was a pretrial detainee at the HCJC.
"Given this permissible deprivation of liberty, due process and its concept of fairness dictates that a pretrial detainee should not be subjected to additional punishment or loss, unless such further deprivation receives justification from a valid interest of the state." Id. As aptly stated in Hamilton v. Love, 328 F. Supp. 1182, 1193 (E.D. Ark. 1971):
If the conditions of pretrial detention derive from punishment rationales, such as retribution, deterrence, or even involuntary rehabilitation, then those conditions are suspect constitutionally and must fall unless also clearly justified by the limited . . . purpose and objective of pretrial detention. .
Hamilton, 328 F. Supp. at 1193. Defendants counter that the Book-in-Fee was not a form of pre-conviction punishment, but merely a method of reimbursement from pretrial detainees[**65] for the costs of their booking and processing fees, instead of burdening the taxpayers of Hamilton County for such costs.
Some past cases have held that pretrial confinement must be consistent with the least restrictive means available to achieve this valid governmental objective. See Cudnik, 392 F. Supp. at 312 (holding that the jail policy of denying methadone to pretrial detainees, does not effectuate the state's narrow interests in pretrial confinement, and, therefore, this policy "constitutes punishment imposed without a finding of criminal culpability and, as such, is violative of fundamental due process rights"); Hamilton, 328 F. Supp. at 1192 (holding that, "it is manifestly obvious that the conditions of incarceration for detainees must, cumulatively, add up to the least restrictive means of achieving the purpose requiring and justifying the deprivation of liberty").