Avalon Precision Casting Co v. Industrial Commission of Ohio

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0440n.06
Filed: July 25, 2008
No. 07-4131
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
AVALON PRECISION CASTING CO., )
)
Plaintiff-Appellant, )
)
v. )
)
INDUSTRIAL COMMISSION OF OHIO; )
ROBIN NASH, Staff Hearing Officer; ) ON APPEAL FROM THE UNITED
GARY DICEGLIO, Chairman; WILLIAM E. ) STATES DISTRICT COURT FOR THE
THOMPSON, Member; KEVIN R. ) NORTHERN DISTRICT OF OHIO
ABRAMS, Member; OHIO BUREAU OF )
WORKERS’ COMPENSATION; MARSHA )
P. RYAN, Administrator; JOHNNIE )
EDWARDS, )
)
Defendants-Appellees. )
Before: SUTTON and COOK, Circuit Judges; and ROSE,* District Judge.
PER CURIAM. A tow-motor accident injured Johnnie Edwards’s knee at work. Edwards
received disability payments, as well as a safety-violation (“VSSR”) award for $3,310.72 because
the tow motor lacked a working horn to warn Edwards as it approached.
Instead of seeking Ohio judicial review, his employer, Avalon Precision Casting Company
(“Avalon”), filed this 42 U.S.C. § 1983 action asking the court to declare that: OSHA preempts
*
The Honorable Thomas M. Rose, United States District Judge for the Southern District
of Ohio, sitting by designation.
No. 07-4131
Avalon Precision Casting Co. v. Industrial Commission of Ohio, et al.
Ohio’s VSSR scheme; the Ohio Administrative Code section requiring a working horn is
impermissibly vague; and Ohio’s prohibition on cross-examining a claimant’s personal physician
in workers’ compensation proceedings violates due process. The district court, in a thorough and
thoughtful opinion with which we agree, rejected each of Avalon’s claims, and we adopt the district
court’s Opinion as the opinion of this panel. See Avalon Precision Casting Co. v. Indus. Comm’n
of Ohio, No. 1:04-cv-02292, 2006 WL 3332212 (N.D. Ohio Nov. 15, 2006).
In a separate Order the district court denied Avalon default judgment against Edwards.
Avalon’s appeal also targets that decision, relying on the compulsory phrasing of the default-
judgment rule that the clerk “must enter the party’s default” if that party “has failed to plead or
otherwise defend,” as did Edwards. See Fed. R. Civ P. 55(a) (emphasis added). But § 1983 confers
jurisdiction only “[t]o redress the deprivation, under color of any State law . . . of any right,
privilege, or immunity secured by the Constitution of the United States . . . .” See Watson v. Kenlick
Coal Co., 498 F.2d 1183, 1185 (6th Cir. 1974); see also Steel Co. v. Citizens for a Better Env’t, 523
U.S. 83, 89 (1998); Bell v. Hood, 327 U.S. 678, 682–83 (1946). The district court thus lacked
jurisdiction to grant a judgment against Edwards, a defendant who indisputably is not a state actor
and who cannot be traced to any of these alleged constitutional violations.
We affirm.
-2-