Laurie Range v. Kenneth Douglas , 2014 FED App. 0190P ( 2014 )


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  •                           RECOMMENDED FOR FULL-TEXT PUBLICATION
    Pursuant to Sixth Circuit I.O.P. 32.1(b)
    File Name: 14a0190p.06
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    _________________
    LAURIE RANGE, et al.,                                  ┐
    Plaintiffs-Appellees (12-3857),   │
    │
    Plaintiffs-Appellants/Cross-Appellees      │       Nos. 12-3857/4190/4192
    (12-4190 & 12-4192),    │
    >
    │
    v.                                              │
    │
    KENNETH DOUGLAS,                                       │
    │
    Defendant,    │
    │
    ESTATE OF BERNARD KERSKER, Individually and in         │
    his official capacity as an employee of Hamilton       │
    County, Ohio; ESTATE OF DR. FRANK CLEVELAND,           │
    on behalf of Dr. Cleveland in all his capacities;      │
    HAMILTON COUNTY, BOARD OF COUNTY                       │
    COMMISSIONERS,                                         │
    │
    Defendants-Appellants (12-3857),   │
    Defendants-Appellees/Cross-Appellants    │
    (12-4190 & 12-4192).    │
    ┘
    Appeal from the United States District Court
    for the Southern District of Ohio at Cincinnati.
    No. 1:10-cv-00473—Michael R. Barrett, District Judge.
    Argued: October 1, 2013
    Decided and Filed: August 15, 2014
    Before: ROGERS, STRANCH, and DONALD, Circuit Judges.
    _________________
    COUNSEL
    ARGUED: Pamela J. Sears, HAMILTON COUNTY PROSECUTOR’S OFFICE, Cincinnati,
    Ohio, for Appellants in 12-3857 and for Appellees/Cross-Appellants in 12-4190 and 12-4192.
    1
    Nos. 12-3857/4190/4192            Range, et al. v. Douglas, et al.               Page 2
    Alphonse A. Gerhardstein, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, for
    Appellees in 12-3857 and for Appellants/Cross-Appellees in 12-4190 and 12-4192. ON BRIEF:
    Pamela J. Sears, Mark C. Vollman, Jerome A. Kunkel, HAMILTON COUNTY
    PROSECUTOR’S OFFICE, Cincinnati, Ohio, for Appellants in 12-3857 and for
    Appellees/Cross-Appellants in 12-4190 and 12-4192. Alphonse A. Gerhardstein, Jennifer L.
    Branch, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, Arthur W. Harmon, Jr.,
    ARTHUR W. HARMON, JR. LLC, Cincinnati, Ohio, Joseph M. Hutson, COHEN, TODD,
    KITE & STANFORD, LLC, Cincinnati, Ohio for Appellees in 12-3857 and for
    Appellants/Cross-Appellees in 12-4190 and 12-4192.
    _________________
    OPINION
    _________________
    JANE B. STRANCH, Circuit Judge. These cases arose when the family members of
    murdered young women discovered that the bodies of their loved ones had been sexually abused.
    Kenneth Douglas, a former morgue attendant for the Hamilton County Morgue, sexually abused
    an untold number of bodies while he was drunk or high and on duty at the morgue. Three of the
    bodies Douglas sexually abused belonged to family members of Plaintiffs. Plaintiffs sued
    Douglas himself, who was convicted of the crime of gross abuse of a corpse, but the civil claims
    against him are not part of these appeals.       Plaintiffs also sued several Hamilton County
    Defendants alleging state law claims and a claim under 42 U.S.C. § 1983. After the district court
    granted partial summary judgment to the County Defendants, the parties brought these separately
    docketed appeals.
    In Case No. 12-3857, the County Defendants bring an interlocutory challenge to the
    denial of Ohio immunity regarding the state claims. Because a jury could find that the County
    Defendants recklessly and wantonly failed to supervise Douglas despite the known risks he
    posed to the bodies, we AFFIRM the denial of Ohio statutory immunity and remand those
    claims for further proceedings.
    In Case Nos. 12-4190 and 12-4192, Plaintiffs bring a Rule 54(b) challenge to the grant of
    summary judgment based on qualified immunity to the County Defendants on the § 1983 claim,
    and the County Defendants cross-appeal. While we have no doubt as to the special nature of the
    relationship between Plaintiffs and their deceased relatives, we conclude that they cannot
    Nos. 12-3857/4190/4192             Range, et al. v. Douglas, et al.              Page 3
    establish a constitutional violation as to the County Defendants. Therefore, we must AFFIRM
    the grant of summary judgment to the County Defendants on the § 1983 claim.
    I. BACKGROUND
    A. Facts
    Over a number of years, Kenneth Douglas sexually abused the dead bodies of murder
    victims held at the Hamilton County Morgue. He sexually abused the body of Karen Range in
    1982, an action that led to a false rape conviction of the man who was convicted of her murder.
    He sexually abused the bodies of Charlene Appling and Angel Hicks in 1991. Douglas’s actions
    were discovered in 2007 after advances in forensic science allowed testing that matched his
    DNA to semen found in the bodies.
    Douglas was regularly alone at the morgue, usually during the late afternoon or evening
    hours, and had sex with each of the bodies while on duty and alone. Douglas said that the body
    of Range was the first one he abused, but admitted to abusing many other bodies as well.
    Douglas was regularly under the influence of alcohol, marijuana, and cocaine while at work and
    was under the influence every time he abused the bodies. An expert for Plaintiffs described
    Douglas as an “opportunistic necrophile” and opined that Douglas’s substance abuse was a
    “major contributing factor to his sexual abuse of corpses.”
    During his time at the morgue, Douglas was directly supervised by Bernard Kersker, the
    morgue director, who was in turn supervised by Carol Maratea, the morgue administrator.
    Maratea was supervised by Dr. Frank Cleveland, the Coroner. Much in this case depends on
    what Kersker and Dr. Cleveland knew or had reason to know. For purposes of all issues on
    appeal, we must view the facts in the light most favorable to Plaintiffs.
    Kersker admitted having concerns about Douglas’s tardiness and dependability as far
    back as 1980. Douglas was often tardy and he used a significant number of sick days, especially
    in 1990 and 1991. Kersker said that he disciplined Douglas by docking his pay, making him stay
    late, and by having him talk to Dr. Cleveland, but that “I was going to keep him because I needed
    him.”
    Nos. 12-3857/4190/4192           Range, et al. v. Douglas, et al.                Page 4
    There is also evidence on the record suggesting that Kersker knew or should have known
    about Douglas’s alcohol use and perhaps his drug use. A co-worker testified that he often
    smelled alcohol on Douglas before, during, or after his shift; that Douglas looked like “he had
    been partying every night” both at the beginning and end of his shift; and that he sometimes
    came to work drunk. Douglas testified that his cocaine addiction was so bad by 1992 that he
    could not perform his job duties because of heavy shaking.
    Douglas’s former wife, Patricia Chavis, testified that she called Kersker to complain that
    Douglas was drinking at work. Twice around 1987, she told Kersker that Douglas was coming
    home intoxicated and that she knew he was drinking at work because she called Douglas at the
    morgue fifteen minutes before he arrived at home. Kersker told her to stop calling the morgue
    and hung up on her. Kersker denied having these conversations, but another employee testified
    that he heard Kersker discussing them with Douglas.
    The record also suggests that Kersker may have known that Douglas was having sex with
    live women at the morgue, something he apparently did with some frequency. Kersker himself
    took messages from the women who constantly called the morgue for Douglas, and Douglas’s
    wife stated during one of her calls to Kersker that Douglas came home “smelling like sex.”
    Chavis also told Maratea that she believed Douglas was having sex at the morgue, warned her
    about Douglas’s drinking, and told her that other morgue employees were using cocaine.
    Finally, Douglas himself testified that Kersker knew about his numerous run-ins with the
    law, including a domestic violence charge and two DUI’s, because Douglas had to request
    vacation time for the period of incarceration. Douglas also testified that he told Kersker about
    his suicide attempt via overdose and his ensuing psychiatric hospital stay as well as his
    alcoholism.
    During all this time, Kersker’s supervision of Douglas never changed. There is testimony
    suggesting that the environment at the morgue was very “laid back” and that other employees
    were also drug users. At least one employee made lewd comments about the bodies of women
    that came into the morgue. While Kersker denied allowing such behavior, he did say in a
    deposition that one of the risks of morgue attendants drinking at work is that they might
    disrespect or harm the bodies.
    Nos. 12-3857/4190/4192                 Range, et al. v. Douglas, et al.                       Page 5
    B. Procedure
    The claims in these appeals are against the “County Defendants”: Hamilton County
    through the Hamilton County Board of Commissioners, Kersker, and Dr. Cleveland.1 Plaintiffs
    brought three claims under Ohio tort law, alleging negligent infliction of emotional distress,
    intentional infliction of emotional distress, and negligent retention and supervision, and one
    claim under 42 U.S.C. § 1983, alleging due process violations.
    After much discovery, the district court issued an order granting partial summary
    judgment to the County Defendants. As to the state claims, the court denied summary judgment
    on the basis of Ohio statutory immunity to the County Defendants because it found that there
    were genuine issues as to whether they supervised Douglas in a wanton and reckless manner, but
    granted Ohio common law immunity to Kersker and Dr. Cleveland regarding claims brought by
    the family of Karen Range. As to the § 1983 claim alleging a substantive due process violation,
    the district court granted summary judgment to the County Defendants. The court granted
    qualified immunity to Kersker and Dr. Cleveland because nothing in the record indicates that
    they knew Douglas might sexually abuse the bodies, and granted summary judgment to Hamilton
    County because Plaintiffs could not establish deliberate indifference.
    As to the state claims, the County Defendants appealed the denial of Ohio immunity and
    moved for certain tort-law questions to be certified to the Ohio Supreme Court. As to the § 1983
    claim, Plaintiffs received certification under Federal Rule of Civil procedure 54(b) and appealed
    the grant of summary judgment. The County Defendants cross-appealed, alleging errors in the
    district court’s reasoning. We consolidated the cases for argument.
    II. CASE No. 12-3857, STATE CLAIMS
    The County Defendants claim immunity under Ohio law from the state claims, but the
    basis for immunity varies depending on the Ohio immunity law in effect at the time each alleged
    act occurred. Hubbard v. Canton City Sch. Bd. of Educ., 
    780 N.E.2d 543
    , 454 (Ohio 2002). For
    claims arising out of the 1982 abuse of Karen Range, Hamilton County relies on Ohio common
    1
    Kersker and Dr. Cleveland both died while this suit was pending. They have been replaced as parties by
    their respective estates.
    Nos. 12-3857/4190/4192                 Range, et al. v. Douglas, et al.                        Page 6
    law immunity.2 For claims arising out of the 1991 abuse of Charlene Appling and Angel Hicks,
    Hamilton County claims immunity under Ohio Revised Code §§ 2744.03(A)(3) and (A)(5).
    Also for the 1991-based claims, Kersker and Dr. Cleveland, in their individual capacities, claim
    immunity under Ohio Revised Code § 2744.03(A)(6)(b).
    A. Choice of Law
    Generally, state substantive law and federal procedural law apply to state claims. E.g.,
    Tompkins v. Crown Corr., Inc., 
    726 F.3d 830
    , 837 n.4 (6th Cir. 2013) (citing Erie R.R. Co. v.
    Tompkins, 
    304 U.S. 64
    , 79 (1938)).              Federal procedural law governs jurisdiction over an
    interlocutory appeal of denial of state immunity, see Chesher v. Neyer, 
    477 F.3d 784
    , 793 (6th
    Cir. 2007), but our jurisdiction here depends on the substance of state immunity, which is a
    matter of state substantive law, see 
    Chesher, 477 F.3d at 793-94
    ; see also Town of Smyrna, Tenn.
    v. The Municipal Gas Authority, 
    723 F.3d 640
    , 645-47 (6th Cir. 2013). Thus, our analysis on
    certain issues involves overlapping federal and state law.
    B. Jurisdiction
    This interlocutory appeal presents jurisdictional issues, though the parties do not raise
    them. Steel Co. v. Citizens for a Better Env’t, 
    523 U.S. 83
    , 94 (1998) (holding that courts must
    ensure that it has jurisdiction, even if sua sponte); 
    Smyrna, 723 F.3d at 644
    (noting that courts
    must address interlocutory jurisdiction). Our jurisdiction is normally limited under 28 U.S.C.
    § 1291 to review of “final decisions” of the district court, but the collateral order doctrine allows
    for review of a limited class of decisions that “finally determine claims of right, separable from,
    and collateral to, rights asserted in the action.” Cohen v. Beneficial Indus. Loan Corp., 
    337 U.S. 541
    , 546 (1949). The collateral order doctrine extends to appeals of a denial of state immunity
    only when the state immunity in question would provide complete immunity from suit; if the
    state immunity is merely from liability, then we have no jurisdiction to review the denial until a
    final judgment is rendered. Sabo v. City of Mentor, 
    657 F.3d 332
    , 336 (6th Cir. 2011); 
    Chesher, 477 F.3d at 793
    .
    2
    The district court granted summary judgment to Kersker and Dr. Cleveland in their individual capacities
    for the claims arising out of the abuse of Karen Range, but that decision is not presently on appeal.
    Nos. 12-3857/4190/4192            Range, et al. v. Douglas, et al.                 Page 7
    1. Jurisdiction over Hamilton County common law municipal immunity
    For claims arising out of the abuse of the body of Karen Range, Hamilton County seeks
    common law immunity under Enghauser Manufacturing Co. v. Eriksson Engineering, Ltd.,
    which formerly provided municipalities certain limited immunity from liability. 
    451 N.E.2d 228
    ,
    232 (Ohio 1983); see also 
    Chesher, 477 F.3d at 793
    (noting that Ohio statutory immunity prior to
    2003 provided only immunity from liability); Greyhound Food Mgmt. Inc. v. City of Dayton,
    
    852 F.2d 866
    , 868 (6th Cir. 1988) (explaining that Ohio statutory immunity prior to 2003 was a
    reenactment of common law immunities). Because Enghauser provided immunity from liability
    and not from suit, we do not have interlocutory jurisdiction over the immunity claim arising out
    of the abuse of Karen Range.
    2. Jurisdiction over statutory immunity of the County Defendants
    For claims arising out of the abuse of the bodies of Charlene Appling and Angel Hicks,
    the County Defendants all seek immunity under Ohio Revised Code § 2744. Since 2003, Ohio
    statutory immunity has provided complete immunity from suit, which means there is
    interlocutory jurisdiction. 
    Chesher, 477 F.3d at 793-94
    . Because the change in Ohio law does
    not apply retroactively, however, the existence of jurisdiction here depends on when the
    underlying claims accrued in relation to the 2003 passage of the Act. 
    Id. at 794
    (citing Jackson
    v. Columbus, 
    804 N.E.2d 1016
    , 1019-20 (Ohio Ct. App. 2004)). If the claims accrued after
    2003, we have interlocutory jurisdiction; if they accrued before, we do not. 
    Id. Emotional distress
    claims “accrue not when the underlying activity occurs, but rather
    when the plaintiffs suffer emotionally by learning of it.” 
    Chesher, 477 F.3d at 794
    . According
    to the Complaint, between 2007 and 2009, Plaintiffs each learned that Douglas abused the bodies
    of their loved ones.    Jurisdiction, therefore, exists to consider questions of Ohio statutory
    immunity arising out of these claims.
    For the negligent retention and supervision claims, however, the accrual date is not
    dispositive because we may exercise pendent jurisdiction “where the appealable and non-
    appealable issues are inextricably intertwined.” Tucker v. City of Richmond, 
    388 F.3d 216
    , 224
    (6th Cir. 2004) (internal quotation marks omitted). The analysis of Ohio statutory immunity is
    Nos. 12-3857/4190/4192            Range, et al. v. Douglas, et al.                    Page 8
    identical for all three state claims. Because they are thus “inextricably intertwined,” we have
    interlocutory jurisdiction over the County Defendants’ state immunity claims arising out of the
    abuse of Charlene Appling and Angel Hicks.
    3. Scope of Jurisdiction: Motion to Certify and Other Issues
    Interlocutory jurisdiction for denials of immunity is limited to the specific issue of
    whether immunity was properly denied. Estate of Owensby v. City of Cincinnati, 
    414 F.3d 596
    ,
    605 (6th Cir. 2005) (citing Tucker v. City of Richmond, 
    388 F.3d 216
    , 224 (6th Cir.2004)).
    Therefore, although the parties’ arguments often stray into the underlying merits of the state tort
    claimsCincluding issues of foreseeability, causation, tortious interference, evidence of harm,
    duty of care, and intervening causationCthese questions are not properly before us. Nor do we
    consider any questions of fact because our jurisdiction is limited “‘to the extent that [the appeal]
    turns on an issue of law.’” Estate of Carter v. City of Detroit, 
    408 F.3d 305
    , 309 (6th Cir. 2005)
    (quoting Mitchell v. Forsyth, 
    472 U.S. 511
    , 530 (1985)). For purposes of this appeal, the County
    Defendants “must concede the most favorable view of the facts to the [P]laintiff[s].” 
    Id. at 309-
    310 (internal quotation marks omitted).
    The County Defendants have also moved to certify to the Ohio Supreme Court four
    questions regarding duties existing under state tort law. All of these questions are outside the
    scope of immunity issues on interlocutory appeal and may be raised only after final judgment.
    Therefore, we deny the motion. The parties will have sufficient opportunity to raise these issues
    before the court below.
    C. State Immunity for Claims Relating to the Abuse of Appling and Hicks
    We review a denial of summary judgment based on state immunity de novo. 
    Chesher, 477 F.3d at 796
    . Summary judgment is proper only when there are no genuine issues of fact and
    the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
    In 1985, Ohio passed the Political Subdivision Tort Liability Act, codified in Ohio
    Revised Code Chapter 2744 and governing state immunity for political subdivisions and their
    employees. Lambert v. Clancy, 
    927 N.E.2d 585
    , 588 (Ohio 2010). For provisions that have
    since been amended, we use the version that was in place in 1991, at the time Douglas abused the
    Nos. 12-3857/4190/4192            Range, et al. v. Douglas, et al.                  Page 9
    bodies of Appling and Hicks. See Hubbard v. Canton City Sch. Bd. of Educ., 
    780 N.E.2d 543
    ,
    454 (Ohio 2002) (“We are bound to apply the words [of the immunity statute] in effect at the
    time the alleged negligent acts occurred.”).
    Ohio uses a three-tier analysis to determine if a person or entity is immune. 
    Lambert, 927 N.E.2d at 588
    . Under Tier 1, political subdivisions and their employees receive a general
    grant of immunity for acts in connection with a government function. Id.; see also Ohio Rev.
    Code Ann. § 2744.02(A)(1) (2013). Tier 2 lists five exceptions to this immunity. 
    Lambert, 927 N.E.2d at 588
    ; see also Ohio Rev. Code Ann. § 2744.02(B). If an exception applies, courts
    then look to Tier 3 to see if immunity is reinstated under any of the defense provisions in Ohio
    Revised Code § 2744.03. 
    Lambert, 927 N.E.2d at 588
    . The parties agree that the County
    Defendants have general immunity under Tier 1 because they are a political subdivision and
    employees of a political subdivision, see Ohio Rev. Code Ann. §2744.02(A)(1) (not amended
    since 1991), and that the County Defendants are potentially liable under Tier 2 because the
    alleged acts occurred “within or on the grounds of buildings that are used in connection with the
    performance of a government function.” Ohio Rev. Code Ann. § 2744.02(B) (2013) (2003
    amendment inapplicable); see also 
    Hubbard, 780 N.E.2d at 545-46
    . The parties dispute whether
    immunity may be reinstated for any of the County Defendants under Tier 3.
    1. Hamilton County=s Claims of Immunity Under Ohio Revised Code
    § 2744.03(A)(3)
    Hamilton County claims that it is entitled to immunity under two separate provisions, the
    first of which reads:
    (3) The political subdivision is immune from liability if the action or failure to act
    by the employee involved that gave rise to the claim of liability was within the
    discretion of the employee with respect to policy-making, planning, or
    enforcement powers by virtue of the duties and responsibilities of the office or
    position of the employee.
    Ohio Rev. Code Ann. § 2744.03(A)(3) (2013) (not amended since 1991) (emphasis added).
    Hamilton County may assert the (A)(3) defense if 1) “an employee who has the duty and
    responsibility for policy-making, planning, or enforcement, by virtue of office or position
    [2)] actually exercises discretion with respect to that power” when giving rise to the claims in
    Nos. 12-3857/4190/4192               Range, et al. v. Douglas, et al.                   Page 10
    question. Elston v. Local Sch., 
    865 N.E.2d 845
    , 851 (Ohio 2007).3 But the defense covers only
    “the exercise of an executive or planning function involving the making of a basic policy
    decision which is characterized by . . . a high degree of official judgment or discretion.” 
    Id. (internal quotation
    marks omitted). “[O]nce the decision has been made to engage in a certain
    activity or function, the state may be held liable, in the same manner as private parties, for the
    negligence of the actions of its employees and agents in the performance of such activities.” 
    Id. (internal quotation
    marks omitted). In response to a city=s argument that any act involving a
    judgment call qualifies as discretionary under these provisions, an Ohio court responded,
    “Horsefeathers. Unfortunately, too many courts have fallen victim to this specious argument.”
    McVey v. Cincinnati, 
    671 N.E.2d 1288
    , 1290 (Ohio Ct. App. 1995). Instead, the court explained,
    “immunity attaches only to the broad type of discretion involving public policy made with the
    creative exercise of political judgment” and not to “the details of carrying out the activity even
    though there is discretion in making choices.” 
    Id. (internal quotation
    marks omitted).
    For example, in a case where a school district was sued because a baseball coach failed to
    properly supervise practice or train the players, the Ohio Supreme Court held that the (A)(3)
    defense did not apply because the coach’s position did not involve “the exercise of a high degree
    of official judgment or discretion.” 
    Elston, 865 N.E.2d at 847
    , 852 (internal quotation marks
    omitted). Nor did the defense apply in a case where a school system was sued because a student
    volunteer was injured at an unsupervised sporting event. Spaid v. Bucyus City Sch., 
    760 N.E.2d 67
    , 68-69, 72 (Ohio Ct. App. 2001). Although teachers made a discretionary decision that the
    event would be unsupervised, it was not “the type of decision making with respect to public
    policy and planning that is characterized by such a high degree of discretion.” 
    Id. at 70,
    72.
    Likewise, the defense did not apply to a city’s decision to install escalators in a parking facility
    because when it made this decision, the City became like any other common carrier. 
    McVey, 671 N.E.2d at 1290
    . The County Defendants argue that a few Ohio cases apply the (A)(3)
    defense more broadly. But these cases were rendered no longer applicable by Elston. See, e.g.,
    Cook v. Hubbard Exempted Vill. Bd. of Educ., 
    688 N.E.2d 1058
    , 1062 (Ohio Ct. App. 1996)
    3
    Because Ohio Rev. Code Ann. §2744.03(A)(3) has not been revised since the underlying acts in 1991,
    Ohio court interpretations of that provision that came after 1991 apply.
    Nos. 12-3857/4190/4192                Range, et al. v. Douglas, et al.                    Page 11
    (holding that the (A)(3) defense applied to the discretion used by a school principle in his daily
    task of clearing hallways, a holding superseded by Elston).
    In the present case, the actions or failures to act that gave rise to the negligent supervision
    claim were the decisions of various morgue employees regarding supervision of Douglas. The
    actions or failures to act that gave rise to the emotional distress claims included those actions as
    well as the abuse itself. The abuse cannot qualify as a policy-making or planning decision. We
    turn to the other actions, viewing the facts in the light most favorable to Plaintiffs. Protection
    might be afforded to tasks that could arguably be considered policy-making or planning, such as
    hiring the morgue director, hiring staff and determining their responsibilities, designing a
    rotating schedule, or managing day-to-day operations. But this record contains facts from which
    a jury could conclude that Hamilton County employees were not engaged in policy-making or
    planning but were instead making factual, employee-specific decisions. Such facts include
    detailed decisions about: what shift to assign to Douglas; whether to administer drug tests to him;
    how to respond to Douglas’s continuing tardiness and dependability problems; whether to make
    unannounced visits while Douglas was alone at the morgue; whether to confront Douglas or
    change the level of supervision after his wife called to complain about alcohol and sex at the
    morgue; whether to supervise Douglas differently after Douglas told Kersker about his DUI and
    suicide attempt; and whether to look into Chavis’s allegations that some of the other employees
    were doing drugs.        These specific, fact-based single employee decisions do not involve
    discretionary acts of an employee with respect to policy-making, planning, or the kind of
    “creative exercise of political judgment” required for the (A)(3) defense.
    The district court did not err by denying (A)(3) immunity to Hamilton County.4
    4
    We do not reach the issue of whether our reasoning here also applies to the district court’s decision
    denying common law municipal immunity for claims arising out of the abuse of Karen Range because, as explained
    above, we do not have jurisdiction over that issue. See 
    Enghauser, 451 N.E.2d at 232
    (common law municipal
    immunity from liability applies only if the acts involved government planning and policy-making).
    Nos. 12-3857/4190/4192           Range, et al. v. Douglas, et al.                Page 12
    2. Hamilton County’s Claims of Immunity Under Ohio Revised Code
    § 2744.03(A)(5)
    Hamilton County also claims that it is entitled to immunity under the following
    provision:
    (5) The political subdivision is immune from liability if the injury, death, or loss
    to person or property resulted from the exercise of judgment or discretion in
    determining whether to acquire, or how to use, equipment, supplies, materials,
    personnel, facilities, and other resources unless the judgment or discretion was
    exercised with malicious purpose, in bad faith, or in a wanton or reckless manner.
    Ohio Rev. Code Ann. §2744.03(A)(5) (2013) (not amended since 1991) (emphasis added). The
    only dispute here is whether there exists a genuine issue of fact as to whether the failure to
    supervise Douglas was wanton and reckless.
    In Ohio, the question of whether a government employee has acted in a reckless or
    wanton manner is a question of fact for a jury.       Fabrey v. McDonald Vill. Police Dep’t,
    
    639 N.E.2d 31
    , 35 (Ohio 1994). “Wanton” conduct is generally “the failure to exercise any care
    whatsoever,” characterized by perversity of being “conscious that [the] conduct will in all
    probability result in injury.” 
    Id. It implies
    knowledge of the probability of harm and the
    “reckless disregard of consequences.” Addis v. Howell, 
    738 N.E.2d 37
    , 40 (Ohio Ct. App. 2000).
    “Reckless” means that the conduct was committed with knowledge or with reason to know of
    facts that would cause a reasonable person to realize that the conduct in question creates an
    unreasonable risk that is greater than mere negligence. Rankin v. Cuyahoga Cnty. Dep’t of
    Children & Family Servs., 
    889 N.E.2d 521
    , 527 (2008). Thus, the question is whether the
    employees consciously disregarded a serious risk of harm that they knew or should have known
    about. For example, it was not reckless conduct for a state agency to place a child with a father
    who eventually killed the child when the father was not a known placement risk. 
    Chesher, 477 F.3d at 799
    (citing Jackson v. Butler City Bd. of Comm’rs, 
    602 N.E.2d 363
    , 366-68 (Ohio 1991)).
    Conversely, it was reckless conduct where a physical education teacher assumed that a child
    floating face down in the water was “joking around,” sent three different students to attempt to
    pull the child out, and only afterward attempted CPR. 
    Id. at 800
    (citing Thomson v. Bagley, 
    2005 WL 940872
    . at *1, 11 (Ohio Ct. App. 2005)).
    Nos. 12-3857/4190/4192             Range, et al. v. Douglas, et al.             Page 13
    Our previous opinion in Chesher is particularly relevant. Family members sued the
    Hamilton County Morgue and its employees for permitting an artist to photograph, disrupt, and
    pose their deceased relatives at the morgue. 
    Id. at 787-92.
    After considering a similar immunity
    question, we held that a jury could find that: the various morgue employees were reckless
    because each knew or had reason to know of some risk of harm, and the risk the employees
    disregarded was substantially greater than the type of risk necessary to make the conduct merely
    negligent. 
    Id. at 801-05;
    see also Moss v. Lorain Cnty. Bd. of Mental Retardation, 
    924 N.E.2d 401
    , 407 (Ohio App. Ct. 2009) (finding enough evidence of recklessness to defeat immunity
    where supervision of special needs child was so lax that a child was able to wander undetected to
    the kitchen and retrieve a pot of hot coffee).
    Turning to the record here, there is significant evidence that by the time of the abuse of
    the two women, Kersker knew that Douglas was an alcoholic and knew that he drank and had
    sex while on duty at the morgue. Two witnessesCDouglas and ChavisCsaid they told Kersker
    about the drinking and sex, and this was corroborated by one of Douglas’s co-workers. Others
    testified that Douglas came to work smelling like booze, shaking from drug-use, and disheveled-
    looking. This is sufficient for a jury to find that Kersker knew that Douglas was mis-using his
    time alone at the morgue. A jury could also find that Kersker knew Douglas presented a risk of
    harm to the bodiesCKersker admitted that one of the risks of a morgue attendant being drunk on
    the job is that he might disrespect or harm the bodies. And there is no question that Kersker
    failed to mitigate any risk. He kept Douglas on shifts where Douglas would be alone several
    days a week, he never administered drug tests or installed cameras, and there is evidence to
    suggest that he maintained a very lax environment in which other employees also had enough
    freedom to drink, do drugs, and have visitors.         Kersker admitted that he was willing to
    put up with” some bad conduct such as tardiness and absences from work because he “needed”
    Douglas. A jury could conclude from this evidence that Kersker “disregard[ed] a known risk
    substantially greater than that necessary to make the conduct negligent.” See 
    Chesher, 477 F.3d at 802
    (internal quotation marks omitted). It is not necessary for Kersker to have disregarded a
    risk of necrophilic acts, only that he disregarded a risk that Douglas would harm the bodies in
    some way.
    Nos. 12-3857/4190/4192                Range, et al. v. Douglas, et al.                      Page 14
    The district court did not err by denying (A)(5) immunity to Hamilton County.
    3. Kersker and Dr. Cleveland’s Claim of Immunity Under Ohio Revised Code
    § 2744.03(A)(6)(b)
    As defendants in their individual capacity, Kersker and Dr. Cleveland rely on an Ohio
    law that provides immunity to an employee of a political subdivision unless the acts or omissions
    “were with malicious purpose, in bad faith, or in a wanton or reckless manner.” Ohio Rev. Code
    Ann. § 2744.03(A)(6)(b).5 As with the (A)(5) defense, the dispute here turns on whether a jury
    could find that Kersker and Dr. Cleveland’s failures to supervise Douglas in a manner that was
    wanton or reckless. Having already concluded that there are genuine issues as to whether
    Kersker’s failures were wanton and reckless, he is not entitled to (A)(6)(b) immunity.
    The record as to Dr. Cleveland is slightly different. Kersker was most immediately
    responsible for supervising Douglas, he designed the shift rotation scheme that left Douglas
    alone, and the evidence suggests that it was Kersker who knew about Douglas’s drinking and sex
    at the morgue. The clearest indication of Dr. Cleveland’s knowledge is testimony from Kersker
    that he kept Dr. Cleveland informed and told Dr. Cleveland about Douglas’s tardiness and
    dependability problems. But there is additional circumstantial evidence from which a jury could
    infer that Dr. Cleveland had knowledge of an unreasonable risk. See, e.g., Cox v. Ky. Dep’t of
    Transp., 
    53 F.3d 146
    , 151-52 (6th Cir. 1995) (reversing grant of summary judgment on
    immunity grounds because district court should have considered circumstantial evidence). If a
    jury were to conclude that Kersker knew of Douglas’s actions, it could conclude that Dr.
    Cleveland, whom Kersker kept informed, also knew. Knowledge of the risk factors could be
    inferred as well because Maratea, Dr. Cleveland’s direct subordinate, heard allegations from
    Chavis that Douglas drank alcohol and had sex at the morgue and that other employees did drugs
    at the morgue.       Even if the jury found that Dr. Cleveland only knew about the serious
    dependability problems, a jury could conclude that he should have been more concerned about
    Douglas in general and instructed his subordinates to provide more supervision.
    5
    While Ohio Revised Code § 2744.03(A)(6) has been modified since 1991, the relevant language is exactly
    the same. See Ohio Revised Code Ann. § 2744.03(A)(6)(b) (1990).
    Nos. 12-3857/4190/4192            Range, et al. v. Douglas, et al.              Page 15
    The district court did not err by denying (A)(6)(b) immunity to Kersker or Dr. Cleveland.
    Thus, we affirm the denial of Ohio immunity, and the state law claims alleging negligent
    infliction of emotional distress, intentional infliction of emotional distress, and negligent
    retention and supervision may proceed below.
    III. CASE Nos. 12-4190/12-4192, §1983 CLAIM
    We now turn to the second appeal, which involves the question of whether the district
    court erred in granting summary judgment to the County Defendants on the § 1983 substantive
    due process claim. Plaintiffs argue that the County Defendants are not entitled to qualified
    immunity because a jury could find that Kersker and Dr. Cleveland were deliberately indifferent
    to the known risk that Douglas would harm the bodies. They allege that extending unsupervised
    access to someone who would touch the bodies with no forensic purpose “shocks the
    conscience” and violates the substantive due process rights to family association and privacy.
    Plaintiffs argue that the rights at stake are obvious and that Hamilton County had a policy of
    deliberate ignorance to known risks of harm.
    The County Defendants cross-appeal arguing that the district court erred by failing to use
    this Court’s “plainly obvious” and “particular injury” test. They also argue that the Board of
    Commissioners of Hamilton County, as well as Kersker and Dr. Cleveland in their official
    capacities, should be dismissed as parties.
    This appeal is before us after the district court granted the Plaintiffs’ motion under
    Federal Rule of Civil Procedure 54(b) to certify the judgment as to the § 1983 claims—which
    granted rather than denied immunity—as a “final order,” and after a panel of this court denied
    the County Defendants’ motion challenging certification.
    A. Standard of Review
    We review the district court’s grant of summary judgment to the County Defendants de
    novo. Bazzi v. City of Dearborn, 
    658 F.3d 598
    , 602 (6th Cir. 2011). Summary judgment is
    appropriate only when there is no genuine issue of material fact and the moving party is entitled
    to judgment as a matter of law. Fed. R. Civ. P. 56(a). “[T]his court must view all inferences to
    be drawn from the underlying facts in the light most favorable to the nonmoving party,” and
    Nos. 12-3857/4190/4192              Range, et al. v. Douglas, et al.               Page 16
    must determine whether a reasonable jury could return a verdict for the plaintiff. Weigel v.
    Baptist Hosp. of E. Tenn., 
    302 F.3d 367
    , 375 (6th Cir. 2002).
    B. Qualified Immunity for Kersker and Dr. Cleveland
    Title 42 U.S.C. §1983 creates a private right of action against anyone who, under color of
    law, deprives a citizen of a right secured by the Constitution, but qualified immunity shields
    government officials, such as Kersker and Dr. Cleveland, from civil damages for discretionary
    functions “insofar as their conduct does not violate clearly established statutory or constitutional
    rights of which a reasonable person would have known,” Harlow v. Fitzgerald, 
    457 U.S. 800
    ,
    818 (1982). To determine whether qualified immunity applies, we ask whether 1) “considering
    the allegations in a light most favorable to the party injured, a constitutional right has been
    violated,” and 2) “that right was clearly established.” McKenna v. Edgell, 
    617 F.3d 432
    , 438
    (6th Cir. 2010); see also McCullum v. Tepe, 
    693 F.3d 696
    , 699 (6th Cir. 2012). We have
    discretion to consider either of these questions first. Pearson v. Callahan, 
    555 U.S. 223
    , 236
    (2009). Whether an official is entitled to qualified immunity is also a legal question that we
    review de novo. Kovacic v. Cuyahoga Cnty. Dep’t of Children & Family Servs., 
    724 F.3d 687
    ,
    693 (6th Cir. 2013).
    1. Substantive Due Process
    Under the Fourteenth Amendment, “[n]o State shall . . . deprive any person of life,
    liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. The due process
    clause has both procedural and substantive components, EJS Props., LLC v. City of Toledo,
    
    698 F.3d 845
    , 855 (6th Cir. 2012), but Plaintiffs raise only a substantive due process claim on
    appeal.
    Substantive due process is “[t]he doctrine that governmental deprivations of life, liberty
    or property are subject to limitations regardless of the adequacy of the procedures employed.”
    Pearson v. City of Grand Blanc, 
    961 F.2d 1211
    , 1216 (6th Cir. 1992) (internal quotation marks
    omitted). It protects a narrow class of interests, including those enumerated in the Constitution,
    those so rooted in the traditions of the people as to be ranked fundamental, and the interest in
    freedom from government actions that “shock the conscience.”            Bell v. Ohio State Univ.,
    Nos. 12-3857/4190/4192                  Range, et al. v. Douglas, et al.                        Page 17
    
    351 F.3d 240
    , 249-50 (6th Cir. 2003).6 It also protects the right to be free from “arbitrary and
    capricious” governmental actions, which is another formulation of the right to be free from
    conscience-shocking actions. 
    Bowers, 325 F.3d at 763
    ; 
    Pearson, 961 F.2d at 1216-17
    .
    Plaintiffs’ argument has two parts.              They contend that Kersker and Dr. Cleveland
    deprived them of an unenumerated fundamental right guaranteed by due process. They frame
    this right primarily as the right to the “protection of the bodies of [their] deceased family
    members.” But they also invoke the right to privacy of a grieving family member, the right to
    “the protection and dignified treatment of their loved one’s bodies,” the right of family members
    to “privately grieve” and “make decisions regarding the disposition of the body,” and the right to
    “non-interference with a family’s remembrance of a deceased loved one.” Independent of
    whether any identifiable unenumerated right is at issue, they also argue that the conduct of
    Kersker and Dr. Cleveland was undertaken with deliberate indifference to a known risk that
    Douglas would harm the bodies and that this “shocks the conscience.”
    At least one of our sister circuits has found that the “common law right to non-
    interference with a family=s remembrance of a decedent” is so rooted in our traditions that
    publication of death photos is a deprivation under the Fourteenth Amendment. Marsh v. Cnty. of
    San Diego, 
    680 F.3d 1148
    , 1154 (9th Cir. 2012); see also Nat’l Archives & Records Admin. v.
    Favish, 
    541 U.S. 157
    , 164-65, 168 (2004) (suggesting in a FOIA case that family members of the
    deceased had a right to privacy over death-scene photos and noting that a family=s control over a
    body has been long-recognized at common law).                     We have also found, in the context of
    procedural due process claims, that relatives have at least a property interest in the bodies of
    deceased relatives. Whaley v. Cnty. of Tuscalosa, 
    58 F.3d 1111
    (6th Cir. 1995) (holding that
    next-of-kin has a constitutionally protected property interest in the bodies of the deceased
    relatives); Brotherton v. Cleveland, 
    923 F.2d 477
    , 481-82 (6th Cir. 1991) (holding that a widow
    has a constitutional entitlement to her husband’s body, including his corneas); see also Newman
    6
    This class of interests is narrower than those protected by procedural due process. 
    Bell, 351 F.3d at 249
    -
    50. Thus, the County Defendants’ contention that we must look for the existence of a right in Ohio state law is
    incorrect. Most state-created rights that qualify for procedural due process protections do not rise to the level of
    substantive due process protection. EJS 
    Props., 698 F.3d at 862
    ; see also Bowers v. City of Flint, 
    325 F.3d 758
    , 763
    (6th Cir. 2003).
    Nos. 12-3857/4190/4192                  Range, et al. v. Douglas, et al.                        Page 18
    v. Sathyavaglswarani, 
    287 F.3d 786
    , 699-70 (9th Cir. 2007) (holding that parents have a
    procedural due process property right in the corneas of their deceased children). Whether or not
    the asserted rights exist, Plaintiffs understandably experienced the desire to protect their family
    members and to grieve for them in privacy. The most obvious violator of those rights, however,
    was Douglas, who committed the abuse. But the claims before us are brought against Kersker
    and Dr. Cleveland, not Douglas. Plaintiffs’ claims, therefore, hinge on a deliberate indifference
    analysis and whether the conduct of Kersker or Dr. Cleveland themselves shocks the
    conscience.7
    Our case law on substantive due process is somewhat conflicted as to whether an
    underlying constitutionally-protected right must be established in order for a government action
    to violate one’s rights by shocking the conscience. EJS 
    Props., 698 F.3d at 861-62
    . In the
    context of zoning decisions, our cases hold that government action will not shock the conscience
    unless it touches on a protectable interest, but in other contexts we have held that, “government
    action may certainly shock the conscience or violate substantive due process without a liberty or
    property interest at stake.” 
    Id. Under either
    formulation, we acknowledge that “substantive due
    process is not a rigid conception, nor does it offer recourse for every wrongful action taken by
    the government” and that the “shocks the conscience” standard sets a high bar: “Substantive due
    process affords only those protections so rooted in the traditions and conscience of our people as
    to be ranked as fundamental.” EJS 
    Props., 698 F.3d at 862
    (internal quotation marks omitted).
    Over the years, the courts have used several tropes to explain what it means to shock the
    conscience. Cnty. of Sacramento v. Lewis, 
    523 U.S. 83
    3, 846-47 (1998). Conduct shocks the
    7
    The County Defendants seem to suggest that this case falls under the DeShaney rule that, absent certain
    exceptions, a government actor’s failure to protect an individual against private action does not violate substantive
    due process. DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 
    489 U.S. 189
    , 197 (1989). However, the rubric in
    DeShaney does not apply to the present allegations, first, because Plaintiffs allege only harm caused by state actors
    and, second, because Plaintiffs allege that Kersker and Dr. Cleveland took an affirmative actionCsupervised
    DouglasCin a deliberately indifferent manner. The County Defendants also suggest that Kersker and Dr. Cleveland
    cannot be held liable because there is no § 1983 liability for the actions of a subordinate based on respondeat
    superior. See Taylor v. Mich. Dep’t of Corrs., 
    69 F.3d 76
    , 81 (6th Cir. 1995) (“At a minimum, a § 1983 plaintiff
    must show that a supervisory official at least implicitly authorized, approved or knowingly acquiesced in the
    unconstitutional conduct of the offending subordinate.” (internal quotation marks and italics omitted)). The
    substance of Plaintiffs’ claim, however, is that the conduct of Kersker and Dr. Cleveland themselves violated the
    constitution. Taylor and other cases based on the theory of respondeat superior do not apply.
    Nos. 12-3857/4190/4192             Range, et al. v. Douglas, et al.                Page 19
    conscience if it “violates the ‘decencies of civilized conduct.’” 
    Id. at 846
    (quoting Rochin v.
    California, 
    342 U.S. 165
    , 172-73 (1952)). Such conduct includes actions “so ‘brutal’ and
    ‘offensive’ that [they do] not comport with traditional ideas of fair play and decency.” 
    Id. at 847
    (quoting Breithaupt v. Abram, 
    352 U.S. 432
    , 435 (1957)). These are subjective standards, to be
    sure, but they make clear that the “shocks the conscience” standard is not a font of tort law, but is
    instead a way to conceptualize the sort of egregious behavior that rises to the level of a
    substantive due process violation. See 
    id. at 847-48.
    Our cases recognize the difficulty of determining where conscience-shocking behavior
    resides on the continuum of actions. The bookends present the easier cases. Merely negligent
    tortious conduct is categorically beneath constitutional due process, but conduct on the other
    extreme end of the culpability spectrum, that which is “intended to injure” without any justifiable
    government interest, most clearly rises to the “conscience-shocking” level.          
    Id. at 848-49.
    Conduct that is more akin to recklessness or gross recklessness, such as deliberate indifference,
    is a “matter for closer calls.” 
    Id. at 849.
    These middle states of culpability “may or may not be
    shocking depending on the context.” Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., 
    542 F.3d 529
    , 535 (6th Cir. 2008). “Deliberate indifference that shocks in one environment may not be so
    patently egregious in another, and our concern with preserving the constitutional proportions of
    substantive due process demands an exact analysis of circumstances before any abuse of power
    is condemned as conscience shocking.” 
    Lewis, 523 U.S. at 850
    .
    We have identified several considerations that bear on the question of whether deliberate
    indifference amounts to conscience-shocking behavior: 1) the voluntariness of the plaintiff=s
    relationship with the government, 2) whether there was time for the government actor to
    deliberate, and 3) whether the government actor was pursuing a legitimate governmental
    purpose. 
    Hunt, 542 F.3d at 536
    . A critical question in deliberate indifference cases is “whether
    the circumstances allowed the state actors time to fully consider the potential consequences of
    their conduct.” Ewolski v. City of Brunswick, 510 (6th Cir. 2002) (internal quotation marks
    omitted). So a police officer who exhibits a reckless disregard for life during a high-speed chase
    does not shock the conscience because the circumstances require instant judgment, 
    Lewis, 523 U.S. at 853-54
    (discussing Daniels v. Williams, 
    474 U.S. 327
    , 332 (1986)), but an officer
    Nos. 12-3857/4190/4192             Range, et al. v. Douglas, et al.               Page 20
    who has five hours to decide whether to use tear gas and forced entry during a standoff might
    shock the conscience if the officer is deliberately indifferent to the risks posed to hostages,
    
    Ewolski, 287 F.3d at 511-12
    .
    As Plaintiffs correctly point out, the time-to-deliberate consideration is especially
    relevant here because it appears that Kersker and Dr. Cleveland had ample time, years even, to
    appreciate whatever risks they could glean from the alleged knowledge that Douglas was
    drinking and having sex with live women at the morgue. Plaintiffs, however, misunderstand the
    nature of the time-to-deliberate consideration.      The purpose of the time element is not to
    transform any reckless action from a tort to conscience-shocking behavior simply because the
    government actor had time to appreciate any risk of harm. Time is instead one element in
    determining whether the actor’s culpability “inch[es] close enough to harmful purpose to spark
    the shock that implicates” substantive due process. 
    Lewis, 523 U.S. at 853
    . For assessing
    whether conduct indicates harmful purpose and, thus, constitutional culpability, both the
    substance of the risk and the time the official had to appreciate it matter.
    Deliberate indifference in the constitutional sense requires that the officials knew of facts
    from which they could infer a “substantial risk of serious harm,” that they did infer it, and that
    they acted with indifference “toward the individual=s rights.” 
    Ewolski, 287 F.3d at 513
    (internal
    quotation marks omitted); see also Darrah v. City of Oak Park, 
    255 F.3d 301
    , 306 (6th Cir.
    2001) (A government actor who has time to deliberate shocks the conscience if the actions “were
    taken with deliberate indifference towards the plaintiff’s federally protected rights.” (emphasis
    added and internal quotation marks omitted)). So, it is the entirety of the situation that must be
    assessed, including a defendant’s awareness of the kind and degree of risk, and of the right
    threatened. For example, a prison official who has time to appreciate a known risk to an
    inmate’s medical needs can shock the conscience by failing to provide medical care. 
    Lewis, 523 U.S. at 850
    -51. A police officer who has five hours to deliberate the known risks of bodily
    injury to hostages shocks the conscience by making a tactical decision to use tear gas and forced
    entry. 
    Ewolski, 287 F.3d at 511-12
    . And an officer who has an opportunity to deliberate the risk
    to life shocks the conscience by placing a drunk woman in the passenger seat of a car with a
    drunk driver who is known to be violent. Stemler v. City of Florence, 
    126 F.3d 856
    , 862-63, 870
    Nos. 12-3857/4190/4192             Range, et al. v. Douglas, et al.                 Page 21
    (6th Cir. 1997). In each case, the risk, i.e. the probability of harm, was substantial, the harm at
    issue was “serious,” and there was evidence from which a jury could find that the defendants
    knew of the scope and substance of the risk. Thus, the type of harm, the level of risk of the
    harm occurring, and the time available to consider the risk of harm are all necessary factors in
    determining whether an official was deliberately indifferent.
    We are not convinced by Plaintiffs’ argument that “any touching” of the bodies without a
    forensic purpose amounts to a “serious harm” in the constitutional sense. If a drunk person
    moves a dead body’s arm, it may amount to inappropriate behavior or even a tort violation. If
    done intentionally by a government actor, it’s even arguable that it’s a constitutional violation.
    See generally Chesher v. Neyer, No. 1:01-cv-0056 (S.D. Ohio July 28, 2004) (holding that
    certain touching done intentionally met the shocks-the-conscience standard). But we cannot say
    that protection against the possible risk of such an occurrence is “so rooted in the traditions and
    conscience of our people as to be ranked as fundamental.” See EJS 
    Props., 698 F.3d at 862
    . Nor
    can we agree that a jury could find that Kersker and Dr. Cleveland were aware of a “substantial
    risk” of what might be a more serious constitutional harm such as desecrating a body. While we
    agree that lapses in judgment by people under the influence are generally recognized, Plaintiffs
    have pointed to no cases, scientific or sociological knowledge, or literature suggesting that there
    is a substantial risk that an inebriated person will desecrate a body. Nor is there evidence that
    these Defendants knew of such a risk.
    Viewing the facts in the light most favorable to Plaintiffs, a jury could find much to
    condemn in the conduct of Kersker and Dr. Cleveland, perhaps even recklessness. But a jury
    could not conclude that these Defendants were aware of facts from which they could infer a
    substantial risk of the kind of serious harm that occurred here, that they did infer it, and that they
    acted with indifference toward the rights of the families involved. We simply cannot say that the
    behavior of these Defendants could show deliberate indifference to Plaintiffs’ constitutionally
    protected rights such that their actions “shock the conscience.” The district court did not err in
    concluding that there was no violation of Plaintiffs’ clearly established rights by Kersker or Dr.
    Cleveland.
    Nos. 12-3857/4190/4192            Range, et al. v. Douglas, et al.               Page 22
    C. County Liability
    “Where, as here, [a county’s] liability is alleged on the basis of the unconstitutional
    actions of its employees, it is necessary to show that the employees inflicted a constitutional
    harm.” 
    Ewolski, 287 F.3d at 516
    ; see also Connick v. Thompson, 
    131 S. Ct. 1350
    , 1359 (2011)
    (explaining that municipalities and other local governments are liable only if an employee takes
    an action pursuant to official policy that causes the injury). Having concluded that, as to County
    employees Kersker and Dr. Cleveland, Plaintiffs have not shown a genuine issue of material fact
    regarding a violation of Plaintiffs= constitutional rights, we must also conclude that the district
    court properly granted summary judgment to Hamilton County on this claim.
    D. Cross-Appeal
    Although the County Defendants prevailed on the § 1983 claims below, they “cross-
    appeal” alleging various errors in the district court’s analysis. We generally have “no appellate
    jurisdiction when the appellant does not seek a change in the relief ordered by the judgment
    appealed from.” Wheeler v. City of Lansing, 
    660 F.3d 931
    , 939-40 (6th Cir. 2011). This cross-
    appeal is dismissed.
    IV. CONCLUSION
    Accordingly, as to Case No. 12-3857 regarding the state claims, we do not have
    jurisdiction to resolve the question of common law immunity as to claims arising out of the
    abuse of Karen Range, but we AFFIRM the district court’s denial of Ohio statutory immunity
    for claims arising out of the abuse of Charlene Appling and Angel Hicks and DENY the motion
    to certify questions of Ohio tort law to the Ohio Supreme Court.            The state claims are
    REMANDED to the district court for further proceedings.
    As to Case Nos. 12-4190 and 12-4192 regarding the § 1983 claim alleging a substantive
    due process violation, we AFFIRM the district court’s grant of summary judgment for the
    County Defendants. The cross-appeal is DISMISSED.
    

Document Info

Docket Number: 12-3857, 12-4190, 12-4192

Citation Numbers: 763 F.3d 573, 2014 FED App. 0190P, 2014 WL 3973704, 2014 U.S. App. LEXIS 15704

Judges: Rogers, Stranch, Donald

Filed Date: 8/15/2014

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (30)

susan-stemler-v-city-of-florence-bobby-joe-wince-thomas-dusing-and-john , 126 F.3d 856 ( 1997 )

Connick v. Thompson , 131 S. Ct. 1350 ( 2011 )

diane-m-whaley-william-e-jones-christine-m-tunney-rita-sharrard , 58 F.3d 1111 ( 1995 )

National Archives & Records Administration v. Favish , 124 S. Ct. 1570 ( 2004 )

Pearson v. Callahan , 129 S. Ct. 808 ( 2009 )

Erie Railroad v. Tompkins , 58 S. Ct. 817 ( 1938 )

Lucinda Darrah v. City of Oak Park, Russell Bragg, a Troy ... , 255 F.3d 301 ( 2001 )

County of Sacramento v. Lewis , 118 S. Ct. 1708 ( 1998 )

Steel Co. v. Citizens for a Better Environment , 118 S. Ct. 1003 ( 1998 )

67-fair-emplpraccas-bna-1134-66-empl-prac-dec-p-43567-charles-cox , 53 F.3d 146 ( 1995 )

Hunt v. Sycamore Community School District Board of ... , 542 F.3d 529 ( 2008 )

Cook v. Hubbard Exempted Village Board of Education , 116 Ohio App. 3d 564 ( 1996 )

deborah-s-brotherton-deborah-s-brotherton-individually-and-as , 923 F.2d 477 ( 1991 )

gregory-tucker-v-city-of-richmond-kentucky-ann-durham-mayor-in-her , 388 F.3d 216 ( 2005 )

Sheila J. Bell v. Ohio State University , 351 F.3d 240 ( 2003 )

Bazzi v. City of Dearborn , 658 F.3d 598 ( 2011 )

Jackson v. City of Columbus , 156 Ohio App. 3d 114 ( 2004 )

Spaid v. Bucyrus City Schools , 144 Ohio App. 3d 360 ( 2001 )

Greyhound Food Management Inc. v. City of Dayton, Federal ... , 852 F.2d 866 ( 1988 )

Betty Weigel v. Baptist Hospital of East Tennessee , 302 F.3d 367 ( 2002 )

View All Authorities »