Jerry Moore, Sr. v. Wesbanco Bank, Inc.

NOT RECOMMENDED FOR PUBLICATION
File Name: 15a0368n.06
No. 13-4477
FILED
May 21, 2015
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
JERRY E. MOORE, SR., )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
WESBANCO BANK, INC., DANIEL ) THE SOUTHERN DISTRICT OF
FRY, and JANE/JOHN DOE, ) OHIO
)
Defendants-Appellees. )
)
)
BEFORE: BATCHELDER and WHITE, Circuit Judges; and COX, District Judge.*
SEAN F. COX, District Judge. Plaintiff-Appellant Jerry E. Moore, Sr., through
counsel, appeals the district court’s grant of summary judgment in favor of defendants on his
claims for violation of 42 U.S.C. § 1983, abuse of process, and invasion of privacy by wrongful
intrusion. For the reasons that follow, we AFFIRM.
I.
Jerry E. Moore, Sr. (“Moore”) is a black resident of Ohio and a banking customer of
Defendant-Appellee WesBanco Bank, Inc. (“WesBanco”). In 2006, Moore’s son, Jerry E.
Moore, II (“Moore II”) was charged with the robbery of an Insta-Cash business in Bridgeport,
Ohio. Moore II is also black. Defendant-Appellee Daniel Fry (“Fry”) was the Belmont County,
Ohio prosecutor assigned to Moore II’s case.
*
The Honorable Sean F. Cox, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 13-4477, Moore v. WesBanco Bank, Inc., et al.
Moore II was arrested approximately fifteen minutes after the robbery took place. He
had $500 cash in his car. Before trial, Moore sought to provide his son’s defense attorney, John
Vavra (“Vavra”), with a copy of a check (“Check #108”), payable to cash in the amount of $500,
which Moore had given Moore II as a housewarming present. This, Moore thought, would
explain why his son had $500 cash in his possession shortly after the robbery occurred.
Moore went to WesBanco to request a copy of Check #108. Moore maintains that he
received only a copy of Check #108, whereas WesBanco and Fry claim that Moore received
copies of several checks, including Checks #107 and #109. Moore provided Vavra with a copy
of Check #108 to be used in Moore II’s defense.
During the second trial of Moore II,1 Moore learned that Fry had somehow obtained
copies of Checks #107 and #109. Moore insists that Fry unlawfully obtained these checks from
WesBanco, and that WesBanco unlawfully provided these checks to Fry without Moore’s
authorization.
Moore filed suit against WesBanco and Fry, in his official and individual capacities,
alleging that they were motivated to act improperly because Moore and Moore II are black.
Moore sued WesBanco and Fry for violations of 42 U.S.C. § 1981 (interference with contracts);
42 U.S.C. § 1983; the Right to Financial Privacy Act, 12 U.S.C. §§ 3401–3422; Ohio Revised
Code § 4112.02; common law invasion of privacy, and abuse of process and misfeasance.
II.
This is the second time that this case has been before this court. On March 8, 2012, the
district court granted summary judgment to WesBanco and Fry on all of Moore’s claims. On
1
Moore II was tried three times for aggravated robbery. The first and second trials ended
in a mistrial due to a hung jury; Moore II was acquitted of the charge at the conclusion of the
third trial.
2
No. 13-4477, Moore v. WesBanco Bank, Inc., et al.
March 6, 2013, we issued an order affirming in part and vacating in part the district court’s grant
of summary judgment and remanding for further proceedings. (R. 55 at PageID# 905-911).
We affirmed the district court’s grant of summary judgment to defendants on Moore’s
§ 1981 claim because “[Moore] provided no evidence of racial discrimination.” (R. 55 at
PageID# 909). Specifically, we found that Moore’s “general and conclusory allegations that
white bank customers are treated differently than he was treated are inadequate, without
additional factual support, to plead a claim for racial discrimination or to survive summary
judgment.” (R. 55 at PageID# 909).
We also affirmed the district court’s grant of summary judgment to defendants as to
Moore’s claims for (1) violation of the Right to Financial Privacy Act, 12 U.S.C. §§ 3401–3422,
(2) malicious prosecution, (3) violation of Ohio Revised Code § 4112.02, and (4) common law
invasion of privacy for publication of private affairs. (R. 55 at PageID# 909-10).
However, we vacated the district court’s grant of summary judgment as to Moore’s
§ 1983, abuse-of-process, and common law invasion of privacy for wrongful intrusion claims.
(R. 55 at PageID# 908). As to these claims, we stated:
Here, drawing all justifiable inferences from the evidence and reasonably
resolving any credibility determinations in Moore’s favor, a jury could find that
an employee of WesBanco improperly provided Fry with copies of Checks 107
and 109. The district court relied on the opposite determination to grant summary
judgment on Moore’s § 1983, common law invasion of privacy for wrongful
intrusion, and abuse of process claims. Accordingly, summary judgment on these
claims was inappropriate.
(R. 55 at PageID# 909). We remanded those claims to the district court for further proceedings.
(R. 55 at PageID# 910).
3
No. 13-4477, Moore v. WesBanco Bank, Inc., et al.
On remand, defendants urged the district court to consider the alternative grounds for
summary judgment that they offered in their original motions, but which the district court did not
initially consider.
The district court again granted summary judgment to defendants on all of Moore’s
remaining claims. With regard to Moore’s § 1983 claim, the district court granted defendants’
motions for summary judgment “to the extent that [Moore’s § 1983 claim] allege[s] a deprivation
of his federal right to be free from race discrimination under § 1981” because this court found
that “Moore provided no evidence of racial discrimination.” (R. 65 at PageID# 977-78). The
district court reasoned that, if Moore lacked evidence of racial discrimination to support his
§ 1981 claim, then Moore also lacked evidence of racial discrimination to support his § 1983
claim. Id.
The district court also granted defendants’ motions for summary judgment on Moore’s
§ 1983 claim to the extent that it was based on a constitutional right to privacy in his financial
affairs. The district court found that Moore has no constitutionally protected right to
nondisclosure of his financial affairs under existing Sixth Circuit case law. (R. 65 at PageID#
982).
Alternatively, the district court found that Fry is entitled to qualified immunity, making
summary judgment on his individual-capacity claim appropriate. The district court granted
summary judgment to Fry in his official capacity because it found that Moore could not establish
Monell liability. (R. 65 at PageID# 982-84).
The district court also granted Fry’s motion for summary judgment on Moore’s abuse-of-
process claim. First, the district court concluded that no federal abuse-of-process claim under
§ 1983 exists in this Circuit. As to Moore’s state law abuse-of-process claim, the district court
4
No. 13-4477, Moore v. WesBanco Bank, Inc., et al.
found that Fry, in his official capacity, was entitled to statutory immunity under Ohio Revised
Code Chapter 2744, entitled the “Political Subdivision Tort Liability Act.” The district court
further found that summary judgment on the state-law abuse-of-process claim was proper
because Moore could not show that Fry had an ulterior motive in obtaining the checks. (R. 65 at
PageID# 987-88).
Having granted summary judgment to defendants on Moore’s federal claims, the district
court declined to exercise supplemental jurisdiction over his common law invasion of privacy by
wrongful intrusion claim and dismissed it without prejudice. (R. 65 at PageID# 990).
Moore timely filed a Notice of Appeal. (R. 67 at PageID# 993-94).
III.
This court reviews the grant of summary judgment de novo. Holloway v. Brush,
220 F.3d 767, 772 (6th Cir. 2000) (en banc). Summary judgment is proper “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)
(quoting Fed. R. Civ. P. 56(c)).
The party who moves for summary judgment has the burden of showing that there are no
genuine issues of material fact in the case. LaPointe v. United Autoworkers Local 600, 8 F.3d
376, 378 (6th Cir. 1993). The moving party may meet its burden by showing that the nonmoving
party lacks evidence to support an essential element of his or her case. Barnhart v. Pickrel,
Schaeffer & Ebeling Co., 12 F.3d 1382, 1389 (6th Cir. 1993). In response, the plaintiff must
come forth with more than a “mere existence of a scintilla of evidence” in support of his or her
position in order to survive summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
5
No. 13-4477, Moore v. WesBanco Bank, Inc., et al.
251 (1986). The court must view the evidence, all facts, and any inferences that may permissibly
be drawn from the facts in the light most favorable to the nonmoving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
IV.
Moore alleges that the district court erred in granting summary judgment to defendants
on remand because it improperly reconsidered questions of law that had already been settled by
this court, in violation of the law-of-the-case doctrine.
The law-of-the-case doctrine provides that “when a court decides upon a rule of law, that
decision should continue to govern the same issues in subsequent stages in the same case.”
Westside Mothers v. Olszewski, 454 F.3d 532, 538 (6th Cir. 2006) (quoting Scott v. Churchill,
377 F.3d 565, 569–70 (6th Cir. 2004)). The complementary “mandate” rule requires the lower
court to follow the orders of an appellate court following a remand. United States v. Moored, 38
F.3d 1419, 1421 (6th Cir. 1994).
“[U]pon remand of a case for further proceedings after a decision by the appellate court,
the trial court must ‘proceed in accordance with the mandate and the law of the case as
established on appeal.’ The trial court must ‘implement both the letter and the spirit of the
mandate, taking into account the appellate court’s opinion and the circumstances it embraces.’”
Id. (quoting United States v. Kikumura, 947 F.2d 72, 76 (3rd Cir. 1991)); see also Westside
Mothers, 454 F.3d at 538.
The law of the case doctrine does not preclude the trial court from considering issues not
expressly or impliedly decided by the appellate court. Westside Mothers, 454 F.3d at 538. “The
law of the case doctrine ‘has no application where the issue in question was not previously
decided.’” Fortis Corporate Ins., SA v. Viken Ship Mgmt. AS, 597 F.3d 784, 792 (6th Cir. 2010)
6
No. 13-4477, Moore v. WesBanco Bank, Inc., et al.
(quoting Niemi v. NHK Spring Co., 543 F.3d 294, 308 (6th Cir. 2008)). To determine whether a
district court violated the law of the case doctrine, this court considers: “a) whether the [] issue
was expressly or impliedly decided by this court in [the first appeal], and b) whether this court’s
mandate to the district court was so narrow in scope as to preclude the district court from
considering the [] issue.” Yeschick v. Mineta, 675 F.3d 622, 633 (6th Cir. 2012) (quoting Waste
Mgmt. of Ohio, Inc. v. City of Dayton, 169 F. App’x 976, 986 (6th Cir. 2006)) (alterations in
original).
There are limited exceptions to the law-of-the-case doctrine. In a situation where the law
of the case would prevent a district court from reconsidering an issue, the district court may
nevertheless “reopen” the issue where there is “substantially different evidence raised on
subsequent trial; a subsequent contrary view of the law by the controlling authority; or a clearly
erroneous decision which would work a manifest injustice.” Moored, 38 F.3d at 1421–22
(quoting Petition of U.S. Steel Corp., 479 F.2d 489, 494 (6th Cir. 1973), cert. denied, 414 U.S.
859 (1973)).
Moore argues that, in awarding summary judgment to defendants a second time, the
district court improperly “reopened” issues that had been settled by this court in the first appeal.
WesBanco maintains that the district court did not betray the law-of-the-case doctrine in granting
summary judgment a second time because it considered other arguments that had not been
explicitly or implicitly decided by this court. WesBanco construes this court’s prior decision as
partially vacating the district court’s grant of summary judgment “solely because [this court]
disagreed with the district court’s determination that there was no genuine issue for trial as to
how the two checks came into Fry’s possession.” (WesBanco Br., Doc. #21 at 12-13).
7
No. 13-4477, Moore v. WesBanco Bank, Inc., et al.
We agree with WesBanco’s interpretation of our prior decision. When we partially
vacated the district court’s original grant of summary judgment, we did so based on our
conclusion that there was a genuine issue of material fact as to whether WesBanco improperly
provided Fry with copies of Moore’s checks. We did not state that Moore had viable claims ripe
for trial. On remand, the district court considered whether summary judgment in defendants’
favor was warranted on alternative grounds that neither it nor we had previously considered.
Therefore, the district court did not violate the law-of-the-case doctrine or the “mandate” rule.2
V.
Moore filed suit against defendants alleging violation of his substantive due process right
to privacy in his financial records, pursuant to 42 U.S.C. § 1983.3
2
We also reject Moore’s argument that defendants’ failure to file a cross-appeal
constituted a waiver of arguments that defendants raised to, but were not considered by, the
district court in their motions for summary judgment. Defendants could not have pursued a
cross-appeal when this case was first before us because, at that time, the district court had
resolved all claims in their favor. Therefore, this court would have had no jurisdiction to
entertain a cross-appeal by defendants. Wheeler v. City of Lansing, 660 F.3d 931, 939 (6th Cir.
2011) (“There is generally no appellate jurisdiction when the appellant does not seek a change in
the relief ordered by the judgment appealed from.”); ASARCO, Inc. v. Sec’y of Labor, 206 F.3d
720, 722 (6th Cir. 2000) (“[A] prevailing party cannot appeal an unfavorable aspect of a decision
in its favor. . . . Appellate courts review judgments, not statements in an opinion.”).
3
Although it is not clear whether Moore alleges any error regarding his race
discrimination claim brought under § 1983, Moore references racial “discrimination” throughout
his brief and contends there is an issue of material fact whether Prosecutor Fry “refuses to
prosecute crimes against black persons, that Fry has misused his authority with regard to
subpoenas and that he or his office has exceeded his/its authority with regard to causing Moore’s
son to be suspended from his employment,” and that “discrimination and/or improper purpose
can be inferred from the fact that Wesbanco did release information concerning Plaintiff-
Appellant Moore’s bank account in order to help convict an innocent black man, Jerry Moore’s
son.” (Moore Br. 34, 38). The district court acknowledged that “[a]ny § 1983 claims against
WesBanco or Fry based on race discrimination do not survive appeal because the Sixth Circuit
concluded that ‘Moore provided no evidence of racial discrimination.’” (R. 65 at PageID# 977).
We agree. Our decision in the first appeal, concluding Moore failed to provide evidence
of racial discrimination to sustain a § 1981 claim, impliedly resolved his § 1983 race
discrimination claim because Moore bases the § 1983 claim on the same factual allegations
8
No. 13-4477, Moore v. WesBanco Bank, Inc., et al.
In order to prevail on a claim brought under 42 U.S.C. § 1983, a plaintiff must show that
a person acting under color of state law deprived him of a right secured by the U.S. Constitution
or a federal law. Savoie v. Martin, 673 F.3d 488, 93–94 (6th Cir. 2012). A state actor’s violation
of an individual’s substantive due process right to privacy may give rise to a cognizable § 1983
claim. See, e.g., Kallstrom v. City of Columbus, 136 F.3d 1055, 1069–70 (6th Cir. 1998)
(reversing and remanding dismissal of plaintiff’s § 1983 claims based on the defendant’s public
release of their personal information). The U.S. Supreme Court has found that individuals have a
substantive due process right to privacy in those activities “which are ‘fundamental’ or ‘implicit
in the concept of ordered liberty.’” Paul v. Davis, 424 U.S. 693, 713 (1976) (citing Palko v.
Connecticut, 302 U.S. 319, 325 (1937)).
In other words, “[t]he substantive due process clause protects two types of privacy
rights.” Jenkins v. Rock Hill Local Sch. Dist., 513 F.3d 580, 590 (6th Cir. 2008) (citing Whalen
v. Roe, 429 U.S. 589, 599–600 (1977)). A “fundamental” privacy right is an “individual’s right
to make ‘personal decisions relating to marriage, procreation, contraception, family relationships,
child rearing, and education.’” Id. (quoting Lawrence v. Texas, 539 U.S. 558, 574 (2003)). The
second type of privacy right is “an individual’s ‘interest in avoiding disclosure of personal
matters.’” Id. (quoting Whalen, 429 U.S. at 599). This court has coined the latter interest the
“informational right to privacy.” Lambert v. Hartman, 517 F.3d 433, 440 (6th Cir. 2008)
(quoting Bloch v. Ribar, 156 F.3d 673, 683 (6th Cir. 1998)).
supporting his § 1981 claim. (See Compl. ¶¶ 28, 30, 36–37.) Additionally, it appears Moore
does not have standing to raise the claim against Fry because he has not alleged facts showing he
was injured by Fry’s alleged discriminatory prosecutions or misuse of his subpoena authority, or
that he has third-party standing to assert the rights of his son.
9
No. 13-4477, Moore v. WesBanco Bank, Inc., et al.
We have adopted a two-step approach to evaluating constitutional claims arising from the
alleged disclosure of an individual’s personal information: (1) the court must determine whether
the interest at stake implicated a right that is fundamental or implicit in the concept of ordered
liberty, and (2) the court must determine whether the government’s interest in releasing the
information outweighs the individual’s interest in keeping the information private. Lambert,
517 F.3d at 440.
This court narrowly construes the “informational right to privacy,” extending it “only to
interests that implicate a fundamental liberty interest.” Id. Thus, we have “recognized an
informational-privacy interest of constitutional dimension in only two instances: (1) where the
release of personal information could lead to bodily harm, and (2) where the information
released was of a sexual, personal, and humiliating nature.” Id. at 440.
As the district court recognized, Moore bases his § 1983 claim on his alleged right to
privacy in his financial records. In considering the merits of Moore’s § 1983 privacy claim, the
district court concluded:
Privacy in financial records is not a right that is either fundamental or implicit in
the concept of ordered liberty. Neither the Supreme Court nor the Sixth Circuit
has recognized a fundamental right to privacy in financial records. . . .
Nor do the circumstances of this case bring it within one of the instances
in which the Sixth Circuit has found a fundamental informational-privacy
rightCPlaintiff never alleged nor offered any evidence that the release of his
financial information could lead to bodily harm, and the information obtained and
released was certainly not of a sexual, personal, or humiliating nature. The case
certainly does not implicate the fundamental rights of procreation, marriage,
contraception, family relationships, and child rearing or education. In sum,
Plaintiff may have a right to privacy in his financial information, but it is not so
firmly rooted in our legal tradition as to constitute a fundamental right protected
by the United States Constitution.
10
No. 13-4477, Moore v. WesBanco Bank, Inc., et al.
Because Plaintiff does not have a constitutional right to privacy in his
financial affairs, Plaintiff cannot make out a § 1983 claim based on a violation of
such a right. Accordingly, the Court grants Fry and WesBanco summary
judgment on Plaintiff’s § 1983 claim.
(R. 65 at PageID# 981-82).
Moore summarily asserts that the district court erred in dismissing his § 1983 claim
because “financial records have long been found to be entitled to constitutional protection under
the right to privacy.” (Moore Br. at 39). Moore’s assertion is without merit. This court has
previously rejected the proposition that individuals have a fundamental right to privacy in their
financial affairs. Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 575 (6th
Cir. 2002) (citing Hahn v. Star Bank, 190 F.3d 708, 715 (6th Cir. 1999) (finding that, without
more, mere production of plaintiffs’ loan file to third parties is “far afield” from the fundamental
interests protected by the right to privacy)). Indeed, Moore has no privacy interest in cancelled
checks. As the Supreme Court recognized in the Fourth Amendment context: “The checks are
not confidential communications but negotiable instruments to be used in commercial
transactions. All of the documents obtained, including financial statements and deposit slips,
contain only information voluntarily conveyed to the banks and exposed to their employees in
the ordinary course of business.” United States v. Miller, 425 U.S. 435, 442 (1976).
Additionally, as the district court recognized, Moore has made no attempt to show how his
alleged privacy right in his personal financial affairs is “implicit in the concept of ordered
liberty.” Lambert, 517 F.3d at 440.
Accordingly, Moore has not shown that he has a valid “informational right to privacy” in
his financial records, including copies of his cancelled checks. Because Moore has failed to
establish that he has a constitutionally protected privacy right in his financial records, we
11
No. 13-4477, Moore v. WesBanco Bank, Inc., et al.
conclude that Moore has failed to establish that defendants have deprived him of any
constitutional or federal right. We therefore AFFIRM the district court’s grant of summary
judgment to defendants as to Moore’s § 1983 claim.4
VI.
In his complaint, Moore alleges, quite perfunctorily, that “the acts and conduct of
defendant Fry constitute misfeasance and/or abuse of process.” (R. 1 at PageID #10). Moore’s
allegations do not make clear whether he is attempting to plead an abuse-of-process claim under
state or federal law. The district court considered whether Moore’s asserted abuse-of-process
claim could survive summary judgment under both federal and Ohio law; we shall do the same
here.
Moore’s alleged federal abuse-of-process claim can be easily disposed of, as this court
has consistently declined to recognize an abuse-of-process claim under 42 U.S.C. § 1983. Rapp
v. Dutcher, 557 F. App’x 444, 448 (6th Cir. 2014) (“[A] federal abuse of process claim does not
exist in the law of this circuit.”); see also Voyticky v. Vill. of Timberlake, Ohio, 412 F.3d 669,
676 (6th Cir. 2005) (“This court has never specifically determined whether a claim for abuse of
process is a cognizable constitutional claim that can be redressed pursuant to § 1983.”).
Therefore, to the extent that Moore purports to assert a claim for abuse of process under federal
law, that claim was properly rejected by the district court.
Ohio does, however, recognize an abuse-of-process cause of action. Yaklevich v. Kemp,
Schaeffer & Rowe Co., 68 Ohio St. 3d 294, 298 (1994). “[A]buse of process occurs where
4
Because we affirm the district court’s grant of summary judgment on the merits of
Moore’s § 1983 claim, we decline to address whether Fry is entitled to qualified immunity. We
also decline to consider whether the district court erred in finding that Moore cannot establish the
necessary elements of Monell liability. Further, we do not address whether WesBanco can be
held liable under § 1983, as a person acting under the color of state law.
12
No. 13-4477, Moore v. WesBanco Bank, Inc., et al.
someone attempts to achieve through use of the court that which the court is itself powerless to
order.” Robb v. Chagrin Lagoons Yacht Club, Inc., 75 Ohio St. 3d 264, 271 (1996). Under Ohio
law, “the three elements of the tort of abuse of process are: (1) that a legal proceeding has been
set in motion in proper form and with probable cause; (2) that the proceeding has been perverted
to attempt to accomplish an ulterior purpose for which it was not designed; and (3) that direct
damage has resulted from the wrongful use of process.” Yaklevich, 68 Ohio St. 3d at 298.
Fry argued, and the district court found, that he is entitled to statutory immunity under
Ohio’s Political Subdivision Tort Liability Act, Ohio Rev. Code § 2744.03. That statute
provides, in pertinent part:
(A) In a civil action brought against a political subdivision or an employee of a
political subdivision to recover damages for injury, death, or loss to person or
property allegedly caused by any act or omission in connection with a
governmental or proprietary function, the following defenses or immunities may
be asserted to establish nonliability:
(1) The political subdivision is immune from liability if the employee
involved was engaged in the performance of a judicial, quasi-judicial,
prosecutorial, legislative, or quasi-legislative function.
....
(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 § 2744.03.
Fry is a prosecutor in the Belmont County Prosecutor’s Office. The Belmont County
Prosecutor’s Office is a political subdivision, as defined in Ohio Rev. Code § 2744.01(F)
(“‘Political subdivision’ . . . means a municipal corporation, township, county, school district, or
other body corporate and politic responsible for governmental activities in a geographic area
13
No. 13-4477, Moore v. WesBanco Bank, Inc., et al.
smaller than that of the state.”). “The statutory definition of ‘governmental function’ includes
prosecutorial functions” as defined by § 2744.01(C)(2)(f). See Bykova v. Cuyahoga Cnty. Dep’t
of Child & Family Servs., No. 95484, 2011 WL 917743, at *2 (Ohio Ct. App. 2011)
(unpublished). The conduct from which Moore’s alleged injury is derived appears to be
prosecutorial in nature; Moore does not argue otherwise. Furthermore, while there are certain
exceptions to Ohio’s governmental immunity statute detailed in Ohio Rev. Code § 2744.02(B), it
is undisputed that none of those exceptions apply here. Based on the facts of this case and the
plain language of Ohio’s statutory immunity provision, we conclude that the district court did not
err in finding that Fry is entitled to statutory immunity under Ohio law. We therefore affirm the
district court’s grant of summary judgment to Fry on Moore’s state-law abuse-of-process claim.
The district court further concluded that Moore’s abuse-of-process claim fails on the
merits. (R. 65 at PageID# 987). We agree. Moore has not pointed to any evidence indicating
that Fry initiated any legal process with an ulterior motive or for an improper purpose.
Therefore, Moore cannot establish the second element of an abuse-of-process claim under Ohio
law, i.e., that a legal proceeding “has been perverted to attempt to accomplish an ulterior purpose
for which it was not designed.” Yaklevich, 68 Ohio St. 3d at 298. We AFFIRM the district
court’s grant of summary judgment to Fry on the abuse-of-process claim.5
5
Defendants argue that the district court properly declined to exercise supplemental
jurisdiction over Moore’s common law invasion of privacy by wrongful intrusion claim after it
dismissed all of Moore’s federal claims. (WesBanco Br. at 36; Fry Br. at 27). We find that
Moore has abandoned this issue, as he does not argue that the district court abused its discretion
in declining to exercise supplemental jurisdiction over his remaining state-law claim. Boyd v.
Ford Motor Co., 948 F.2d 283, 284 (6th Cir. 1991) (finding that, when a plaintiff fails to raise an
issue pertaining to a lower court’s ruling, the issue is considered abandoned on appeal and not
reviewable).
14
No. 13-4477, Moore v. WesBanco Bank, Inc., et al.
VII.
For these reasons, we AFFIRM.
15