Bright Petition For Cert

No.
__________
IN THE
Supreme Court of the United States

ROBERT BRIGHT,
v.
Petitioner,
GALLIA COUNTY, OHIO; BOARD OF

COMMISSIONERS OF GALLIA COUNTY,
OHIO; GALLIA COUNTY PUBLIC DEFENDER
COMMISSION; AND GALLIA COUNTY
CRIMINAL DEFENSE CORPORATION,
Respondents.
On Petition for Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit
PETITION FOR A WRIT OF CERTIORARI
Alphonse A. Gerhardstein
Counsel of Record
Jacklyn Gonzales Martin

GERHARDSTEIN & BRANCH
CO. LPA
423 Walnut Street, #400
Cincinnati, Ohio 45202
(513) 621-9100
agerhardstein@gbfirm.com
Counsel for Petitioners
i
QUESTION PRESENTED
Whether the First Amendment protects a public
defender from being fired solely based on the content
of pleadings appropriately filed on behalf of indigent
criminal defendants.
ii
PARTIES TO THE PROCEEDING
Petitioner, Robert Bright was the plaintiff in the
District Court and the appellant in the Court of
Appeals case against Gallia County, Ohio, the Board
of Commissioners of Gallia County, Ohio, the Gallia
County Public Defender Commission, and the Gallia
Criminal Defense Corporation.
Respondents, Gallia County, Ohio, the Board of
Commissioners of Gallia County, Ohio, the Gallia
County Public Defender Commission, and the Gallia
Criminal Defense Corporation were the defendants
in the District Court and the appellees in the Court
of Appeals.
Judge David Dean Evans was a party to the
proceedings below, as a defendant and an appellant,
but is no longer a party. Robert Bright is not
appealing the Court of Appeals order dismissing the
case against Judge Evans.
iii
TABLE OF CONTENTS
QUESTION PRESENTED ........................................... i
PARTIES TO THE PROCEEDING .........................ii
TABLE OF AUTHORITIES ....................................... vi
PETITION FOR A WRIT OF CERTIORARI.............. 1
OPINIONS BELOW .................................................... 3
JURISDICTION .......................................................... 3
RELEVANT CONSTITUTIONAL PROVISION ........ 4
STATEMENT OF THE CASE .................................... 4
I.
Background ....................................................... 4
II.
District Court Proceedings ............................... 7
III.
Court of Appeals for the Sixth Circuit

Proceedings ....................................................... 8
REASONS FOR GRANTING THE PETITION.......... 9

I.
The Supreme Court has not given

definitive guidance on attorneys right to
free speech in the courtroom, however the
Sixth Circuits holding is inconsistent
with the thrust of Supreme Court First
Amendment jurisprudence. .............................. 9
iv
II.
The issue of whether an attorney has a

right to free speech in the courtroom is an
important question of federal law. ................. 15
III.
Federal and State courts are divided as to

the extent of an attorneys right to free
speech in the courtroom.................................. 20
IV.
The Question Presented is Ripe for

Review, and This Case Is An Appropriate
Vehicle for the Court to Consider the
Issue of Attorney Free Speech........................ 23
CONCLUSION .......................................................... 24
APPENDIX
Appendix A
Order Denying Panel Rehearing en

banc in the United States Court of
Appeals for the Sixth Circuit
(August 22, 2014) .............................1a
Appendix B
Opinion in the United States Court of

(June 3, 2014) ...................................3a
Appendix C
Opinion and Order in the United

States District Court for the Southern
District of Ohio Eastern Division
(July 29, 2013) .................................42a
Appendix D

(June 3, 2013) .................................45a
Appendix E

v
(June 3, 2013) .................................53a
vi
TABLE OF AUTHORITIES
CASES
Application of Griffiths,
413 U.S. 717 (1973). ................................................. 2
Bank v. Katz,
424 F. App'x 67 (2d Cir. 2011) ............................... 22
Barrett v. Harrington,
130 F.3d 246 (6th Cir.1997), cert. denied,
523 U.S. 1075 (1998) ............................................ 14
Bates v. State Bar,
433 U.S. 350 (1977) ................................................ 14
Berner v. Delahanty,
129 F.3d 20 (1st Cir. 1997) .................................... 22
Eng v. Cooley, 552 F.3d 1062 (9th Cir. 2009),
cert. denied, 558 U.S. 1110 (2010) ................. passim
Gentile v. State Bar of Nevada,
501 U.S. 1030 (1991) .................................. 16, 22, 23
Gideon v. Wainwright,
372 U.S. 335 (1963) ................................................ 18
Hirschkop v. Snead,
594 F.2d 356 (4th Cir. 1979) .................................. 22
Legal Services v. Velazquez,
531 U.S. 533 (2001) ........................................ passim
Mezibov v. Allen,
411 F.3d 712 (6th Cir. 2005) .......................... passim
NAACP v. Button,
371 U.S. 415 (1963) ................................................ 13
vii
Neuberger v. Gordon,
567 F. Supp. 2d 622 (D. Del. 2008) ........................ 13
Ohio State Bar Assn. v. Evans,
999 N.E.2d 674 (Ohio 2013) ..................................... 6
Shapero v. Kentucky Bar Assn,
486 U.S. 466 (1988) ................................................ 14
Thaddeus-X v. Blatter,
175 F.3d 378 (6th Cir. 1999) .................................. 13
United States v. Grace,
461 U.S. 171 (1983) ................................................ 20
United States v. Scarfo,
263 F.3d 80 (3d Cir. 2001) ..................................... 21
Zauderer v. Office of Disciplinary Counsel,
471 U.S. 626 (1985) ................................................ 14
STATUTES
U.S. Const. amend. I. .................................................. 4
OTHER AUTHORITIES
ABA STANDING COMM. ON LEGAL AID &
INDIGENT DEFENDANTS, GIDEONS BROKEN
PROMISE: AMERICAS CONTINUING QUEST FOR
EQUAL
JUSTICE
38
(2004)
(available
athttp://www.americanbar.org/content/dam/ab
a/administrative/legal_aid_indigent_defendan
ts/ls_sclaid_def_bp_right_to_counsel_in_crimi
nal_proceedings.authcheckdam.pdf) ..................... 18
Erwin Chemerinsky, Lessons from Gideon, 122
YALE L.J. 2676 (2013) ............................................ 18
viii
Kathleen Sullivan, The Intersection of Free
Speech and the Legal Profession: Constraints
on Lawyers First Amendment Rights, 67
FORDHAM L. REV. 569, (1998)..............................14, 15
Margaret Tarkington, A Free Speech Right to
Impugn
Judicial
Integrity
in
Court
Proceedings, 51 BOSTON COLLEGE LAW REVIEW
363 (2010). ........................................................ 16, 17
1
PETITION FOR A WRIT OF CERTIORARI
Petitioner Robert Bright alleges that he was
terminated from his appointment as a public
defender based solely on the content of a pleading he
filed on behalf of his indigent criminal defendant
client. The Sixth Circuit Court of Appeals dismissed
the claims against respondents Gallia County, the
Gallia County Public Defender Commission (the
Commission), and the Gallia County Criminal
Defense Corporation (the Corporation) on the basis
that an attorney has no First Amendment right to
free speech when speaking on behalf of a client in
court. Pet. App. 5a. Petitioner respectfully petitions
for a writ of certiorari to review the judgment of the
Sixth Circuit Court of Appeals in Case No. 133451/3907 to correct the Sixth Circuits error of law
and resolve a conflict among the circuits on this
matter of exceptional public importance.
An attorney should not be fired for making
unpopular arguments on behalf of unpopular clients.
Petitioner Robert Bright filed a pleading in which he
challenged local county court rules, including one
imposing a drop dead date for accepting plea
bargain proposals. The sole trial judge handling cases
in that county retaliated against Mr. Bright by
ordering him removed from all the (more than 70)
criminal cases assigned to him as a public defender.
Rather than support the attorney for doing his duty
as an advocate, Respondents discharged him as a
public defender stating as its pretextual reason that
Mr. Bright could no longer practice before the only
judge in the county. The trial judge was eventually
disciplined by the Ohio Supreme Court for his
2
treatment of the petitioner. However when Mr.
Bright sued over his retaliatory discharge the Sixth
Circuit panel held that his advocacy for his clients
was not protected by the First Amendment. App. 27a.
The panel stated, If we were writing on a clean
slate, we would be inclined to hold that Bright has
[engaged in activity protected by the First
Amendment] but Mezibov v. Allen, 411 F.3d 712 (6th
Cir. 2005), a panels prior published decision, compels
us to affirm the dismissal of Brights claim. Id. This
ruling violates clear precedent from this Court,
conflicts with other circuits and presents a matter of
exceptional public importance. Allowing this ruling to
stand would mean that public defenders have no
protection from retaliation when they do their duty of
zealously representing indigent criminal defendants.
This ruling encourages lawyers to go along with
unjust and unconstitutional policies rather than
speaking up and it seriously undermines the quality
of justice available to indigent defendants.
As stated by this Court: The history of the legal
profession is filled with accounts of lawyers who
risked careers by asserting their independent status
in opposition to popular and governmental attitudes,
as John Adams did in Boston to defend the soldiers
accused in what we know in our folklore as the
Boston Massacre. Application of Griffiths, 413 U.S.
717, 732 (1973). Further, The very independence of
the lawyer from the government . . . is what makes
law a profession, something apart from trades and
vocations in which obligations of duty and conscience
play a lesser part. It is as crucial to our system of
justice as the independence of judges themselves.
Id.
3
Attorneys should not have to fear government
retaliation for their responsible zealous advocacy of
their clients. Just as [w]e must be vigilant when
Congress imposes rules and conditions which in
effect insulate its own laws from legitimate judicial
challenge, we must also be vigilant against attempts
to insulate the judiciary from criticism. Legal
Services v. Velazquez, 531 U.S. 533, 548 (2001).
OPINIONS BELOW
The opinion of the court of appeals is reported at
753 F.3d 639 (6th Cir. 2014) and reprinted in the
Appendix at 3a-41a. The order of the court of appeals
denying rehearing en banc is unreported but
reprinted in the Appendix at 1a-2a. The opinions of
the district court granting defendants motion to
dismiss are unreported but available at 2013 WL
2417972 (S.D. Ohio June 3, 2013) (dismissing the
claims against the Gallia County Board of
Commissioners and the Gallia County Public
Defender Commission) and 2013 WL 2417971 (S.D.
Ohio June 3, 2013) (dismissing claims against the
Criminal Defense Corporation) and reprinted in the
Appendix at 45a-52a and 53a-76a, respectively. The
opinion and order of the district court that entered
final judgment of the dismissals is unpublished but
available at 2013 WL 3924312 (S.D. Ohio July 29,
2013) and reprinted in the Appendix at 42a-44a.
JURISDICTION
The Sixth Circuit rendered its opinion on June 3,
2014 and denied rehearing en banc on August 22,
4
2014. The jurisdiction of this Court is invoked under
28 U.S.C. 1254(1).
RELEVANT CONSTITUTIONAL PROVISION
The First Amendment to the Constitution
provides, in relevant part: Congress shall make no
law . . . abridging the freedom of speech. U.S. Const.
amend. I.
STATEMENT OF THE CASE
I.
Background
In 2011, Petitioner Robert Bright was hired by

Respondent Gallia County Criminal Defense
Corporation (the Corporation), to represent
indigent defendants charged with felonies in Gallia
County. The Corporation is funded by Respondent
Gallia County pursuant to a contract with
Respondent Gallia County Public Defender
Commission (the Commission).
In July 2011, Mr. Bright represented indigent
defendant Mr. Gleason before Judge David Dean
Evans, the countys only Court of Common Pleas
judge. Mr. Bright negotiated a plea with the
prosecutor and a plea hearing was scheduled, but on
the day of the hearing, July 25, 2011, Mr. Gleason
changed his mind and declined to proceed with the
plea. Mere seconds later, Mr. Gleason again
reconsidered and Petitioner informed Judge Evans
that Mr. Gleason would take the deal after all.
However, Judge Evans refused.
Mr. Bright and the Prosecuting Attorney met
with Judge Evans on July 28, 2011 in Judge Evans
5
chambers to try to convince him to accept the plea,
but Judge Evans again refused. On August 3, 2011,
Petitioner filed a Motion to Accept Plea with the
Court on behalf of Mr. Gleason urging the Court to
accept the plea. In this motion, Bright stated that
the judges refusal to accept the plea was an abuse
of discretion and unreasonable and/or arbitrary
and/or unconscionable. Petitioner also criticized a
number of Judge Evans courtroom policies
infringing the rights of Mr. Gleason and other
criminal defendants in Gallia County, including a
blanket policy of a drop dead date concerning plea
agreements under which Judge Evans refused to
accept a guilty plea or a prosecutors decision to drop
charges after a set date. As the Sixth Circuit noted,
[t]hroughout the motion, Bright cited case law and
made legal arguments. His language was emphatic
and forceful in many places (for example, calling
Judge Evanss actions unconscionable), but he used
zero profanity and made no charges of ethical
impropriety. App. 7a.
In response to Petitioners Motion, Judge Evans
filed a grievance against Mr. Bright with the Office
of Disciplinary Counsel of the Supreme Court of Ohio
on August 8, 2011. That same day, instead of
recusing himself from the case as required by Ohio
Code of Judicial Conduct, Judge Evans filed a public
journal entry in which he declared that Mr. Bright
had created a conflict with the Court and ordered
that Mr. Bright be removed from the case of Mr.
Gleason. The following day Judge Evans removed
Mr. Bright from every other action pending before
him in which Mr. Bright was serving as appointed
6
counselmore than seventy felony cases, citing the
same conflict.
On September 7, 2011, Petitioner was notified by
the Corporation that his service as a public defender
was terminated without a hearing or other due
process. The Corporation cited the conflict between
Mr. Bright and Judge Evans and the fact that Judge
Evans had barred Mr. Bright from practicing in his
court, effectively preventing Mr. Bright from
performing his duties as a public defender. However,
Petitioner alleges that the decision to terminate him
as a public defender was in fact motivated by his
speech, and that the reason cited by the Corporation
was a mere pretext. At no time did Respondents
formally challenge the actions of Judge Evans in
removing Mr. Bright from all pending cases. They
did notinsist on the Judge recusing himself or
otherwise protect Mr. Bright consistent with the
terms of the indigent defense statutes, rules, and
contracts. They simply acquiesced, cooperated, and
made permanent through discharge the retaliation
against Mr. Bright for engaging in protected speech.
The grievance filed by Judge Evans against Mr.
Bright ultimately resulted in a finding of no probable
cause for disciplinary action and the Office of
Disciplinary Counsel closed its investigation without
filing any complaint against Mr. Bright. The Office of
Disciplinary Counsel did, however, find fault in
Judge Evans actions, and it recommended sanctions
against the judge that were later increased by the
Ohio Supreme Court. Ohio State Bar Assn. v. Evans,
999 N.E.2d 674 (Ohio 2013) (the disciplinary boards
recommended sixth-month suspension for Judge
7
Evans too lenient and the Ohio Supreme Court
increased the stayed suspension to one year).
II.
District Court Proceedings
On September 4, 2012, Petitioner filed a

complaint in the Southern District of Ohio alleging,
inter alia, a violation of his First and Fourteenth
Amendment rights to free speech under 42 U.S.C.
1983 against Gallia County, the Corporation, and
Judge Evans. On November 29, 2012, Petitioner
amended his complaint to include the Commission.
On December 12, 2013, Judge Evans filed a motion to
dismiss the Amended Complaint, arguing that the
doctrine of absolute judicial immunity protects him
from suits for monetary damages. The district court
denied the motion on April 2, 2013 and Judge Evans
appealed.
The County, the Commission, and the Corporation
also filed motions to dismiss. The district court
dismissed the claims against the County and the
Commission, concluding that Bright failed to plead
sufficiently that the Board or the Commission
retaliated
against
him
for
exercising
his
constitutional rights or that liability attaches to the
Board or the Commission under the Monell doctrine.
(Doc. 53). Likewise, the district court dismissed the
claim against the Corporation holding that Bright
had not sufficiently pleaded that the Corporation
deprived Bright of a federal right. (Doc. 52).
Petitioner moved for entry of final judgment as to the
County, the Commission, and the Corporation under
Federal Rule of Civil Procedure 54(b) and
8
subsequently appealed the decisions to the Sixth
Circuit.
III.
Court of Appeals for the Sixth Circuit

Proceedings
On appeal the Sixth Circuit reversed the district

courts decision with regard to Judge Evans,
dismissing the claims against him on grounds of
absolute judicial immunity. App 13a-14a. Petitioner
does not appeal that decision.
With regard to the Corporation, the Sixth Circuit
panel applied the three part test for First
Amendment retaliation, finding that there was
adverse action and that the adverse action was
motivated by Mr. Brights speech. App 24a-27a.
However, the panel reluctantly found that it was
bound by the decision in Mezibov v. Allen, holding
that an attorney retains no personal First
Amendment rights when filing motions and making
statements on behalf of a client in courtroom
proceedings. App 28a. Thus, Petitioners speech was
not constitutionally protected, and the Corporation
did not violate the First Amendment by firing
Petitioner in connection with that speech.
Id.However, in reaching this conclusion, the panel
criticized the Mezibov decision as overbroad and
controversial. App. 29a. The panel also found that it
was bound under Mezibovto affirm dismissal of the
claims against the Commission and County because
those claims failed to identify any violation of federal
law. App. 41a. The panel explained that Mezibov can
only be overturned by an en banc decision or by this
9
Court, and therefore with great reluctance the
panel was required to follow a precedent that drew
several controversial opinions and an emphatic
dissent. App. 28a-29a. The en banc panel denied
Brights petition. App. 1a-2a.
REASONS FOR GRANTING THE PETITION
I.
The Supreme Court has not given
definitive guidance on attorneys right to free
speech in the courtroom, however the Sixth
Circuits holding is inconsistent with the thrust
of
Supreme
Court
First
Amendment
jurisprudence.
The court of appeals erred in holding that an
attorney has no First Amendment right to free
speech in the courtroom, even when advocating on
behalf of parties before the court. In light of this
Courts decision in Legal Servs. Corp. v. Velazquez,
531 U.S. 533 (2001) this Court should grant this
petition and overturn that holding to prevent further
encroachment on attorneys and litigants free speech
rights.
While the Supreme Court has not laid out a
standard for adjudicating cases of attorney free
speech in the courtroom, the Courts First
Amendment jurisprudence clearly establishes that
such a right exists. In Legal Servs. Corp. v.
Velazquez, this Court considered a challenge to a law
that provided federal grants to Legal Services Corp.
(LSC) lawyers to represent indigent clients but
prohibited grant recipients from engaging in
representation involving efforts to amend or
10
challenge welfare laws. 531 U.S. at 536-37. The
restriction required lawyers to refrain from making
constitutional or statutory challenges to the validity
of the law. Id. at 539. Lawyers employed by
recipients of these grants and their clients brought
suit challenging the constitutionality of the
restriction on First Amendment grounds. Id. at 537.
This Court held that the restriction violated the
First Amendment, reasoning that the speech of an
attorney representing a client is private speech even
when subsidized by the government because
attorneys are held to the canons of professional
responsibility mandating that they exercise
independent judgment on behalf of the client. Id. at
542. The advice from the attorney to the client and
the advocacy by the attorney to the courts cannot be
classifiedas governmental speech even under a
generous understanding of the concept. Id. at 543.
The Court also noted that the restriction would
severely impair the judicial function because the
truncated representation could lead to incomplete
analysis of the case. Id. at 545. Concluding that the
restriction is designed to insulate the Governments
interpretation of the Constitution from judicial
challenge, the restriction was held invalid. Id. at
548-49.
The ruling in this case similarly allows retaliation
for the very speech an attorney is required to
pursueunder
the
canons
of
professional
responsibility. The problem is grounded in the
Circuits erroneous precedent set in Mezibov v. Allen.
In that case, a criminal defense attorney filed three
motions seeking to dismiss an indictment against a
11
client and to disqualify the prosecutor because of the
prosecutors alleged improper conduct. Mezibov v.
Allen, 411 F.3d 712, 715 (6th Cir. 2005). The motions
were denied and the client was convicted. Id.
Following the jury verdict, the prosecutor released
allegedly defamatory statements to the media
denigrating Mr. Mezibovs skills as an attorney. Id.
at 715-716. Mezibov sued the prosecutor, claiming
that the prosecutor had retaliated against him for
exercising his First Amendment rights by filing
motions in court on behalf of a client. Id. at 716.
Applying the three part test for retaliation, the
Sixth Circuit concluded that in the context of the
courtroom proceedings, an attorney retains no
personal First Amendment rights when representing
his client in those proceedings. Id. at 720. In
reaching this conclusion, the court opined that [t]he
courtroom is a nonpublic forum where the First
Amendment rights of everyone (attorneys included)
are at their constitutional nadir. Id. at 718. The
court also wrote that an attorneys job in the
courtroom, although it necessarily includes speech, is
fundamentally inconsistent with the basic concept of
free speech. Id. at 719.
Although the Sixth Circuit was bound to apply
Mezibov in the case at hand, the panel appropriately
expressed great displeasure at doing so, stating, If
we were writing on a clean slate, we would be
inclined to hold that Bright has also carried this
burden [of showing that his activity is protected by
the First Amendment.] App. 27a. The panel also
correctly stated that, The panels opinion in Mezibov
deployed overly broad, general language and drew
12
several controversial conclusions. Id. at p. 17. App.
28a.
The Mezibov holding is indeed overbroad and
clearly conflicts with this Courts holding in
Velazquez. The Mezibo vcourt addressed the holding
in Velasquez by attempting to distinguish it,
concluding that the cases were different because
Velazquezinvolved clients seeking to vindicate their
own First Amendment rights, not the attorneys
personal rights, and because the regulation touched
on both in-court and out-of-court speech. Mezibov,
411 F.3d at 720. However the Velazquez decision
provides no basis for these distinctions. The Supreme
Court framed the question presented as whether the
law violates the First Amendment rights of LSC
grantees and their clients. Velazquez, 531 U.S. at
536. Velazquez therefore suggests that government
action seeking to limit an attorney's advocacy on
behalf of a client implicates the client's, as well as
the attorney's, First Amendment interests. Eng v.
Cooley, 552 F.3d 1062 (9th Cir. 2009), cert. denied.,
558 U.S. 1110 (2010). Upholding Mezibov and the
decision in this case, which allow unfettered
retaliation in response to attorney speech on behalf
of a client, rendersVelazquez meaningless.
As the Sixth Circuit panel in the instant case
recognized, the Mezibov majority opinion was
sharply criticized by the dissent and by judges in
subsequent cases. See Mezibov, 411 F.3d at 72326
(Moore, J., dissenting) (Far from seeing the
courtroom as a place where the First Amendment
would intrude, Maj. Op. at 717, I view the
courtroom as a place where freedom of expression
13
should be embraced and exercised with vigor.);
Lewter v. Kannensohn, 159 F. Appx 641, 648 (6th
Cir. 2005) (Keith, J., dissenting) (unpublished)
(stating that Mezibov holding was an unwarranted
extension of prior law); App. 28a. (The panels
opinion in Mezibov deployed overly broad, general
language
and
drew
several
controversial
conclusions.). Other circuits have also interpreted
Velazquez to suggest that government action limiting
an attorney's advocacy on behalf of a client
implicates both the clients and the attorneys First
Amendment interests. See Eng, 552 F.3d 1062, cert.
denied (speech by deputy district attorney). Further,
the Sixth Circuit has recognized that assisting
someone with legal claims is protected First
Amendment activity. Thaddeus-X v. Blatter, 175
F.3d 378 (6th Cir. 1999) (en banc).
Moreover, speech by an attorney advocating on
behalf of indigent criminal defendants is similar to
the attorney speech protected in NAACP v. Button,
371 U.S. 415 (1963), to associate for the purpose of
assisting persons who seek legal redress for
infringements of their constitutionally guaranteed
and other rights. Id. at 428; See also Neuberger v.
Gordon, 567 F. Supp. 2d 622 (D. Del. 2008) (lawyer
speech and lawsuits filed for clients alleging public
corruption protected by First Amendment).
Even regulations on out-of-court attorney speech
in the form of solicitation and advertising, are subject
to First Amendment limits.1 This Court has struck
1See
Kathleen Sullivan, The Intersection of Free Speech and the

Legal Profession: Constraints on Lawyers First Amendment
14
down bans on price advertising, Bates v. State Bar,
433 U.S. 350 (1977), the use of pictures, Zauderer v.
Office of Disciplinary Counsel, 471 U.S. 626, 627
(1985), and mailing targeted advertisements,
Shapero v. Kentucky Bar Assn, 486 U.S. 466, 467
(1988). The value of such speech pales in comparison
with the value of advocacy exposing government
misconduct which is at the core of the First
Amendment. Barrett v. Harrington, 130 F.3d 246,
262-63 (6th Cir. 1997) (Freedom to criticize public
officials and expose their wrongdoing is at the core of
First Amendment values, even if the conduct is
motivated by personal pique or resentment.), cert.
denied, 523 U.S. 1075 (1998). To provide attorney
advertisement and solicitation greater protection
than attorney advocacy that exposes wrongdoing flies
in the face of First Amendment jurisprudence
declaring that the right to criticize ones government
is inviolable. As a public defender Mr. Bright was
challenging unfair and unconstitutional procedures
imposed on indigent criminal defendants including a
drop dead date for accepting plea agreements.
Attorneys must be protected in making such
arguments if criminal defendants are to receive due
process and fair treatment.
Rights, 67 FORDHAM L. REV. 569, (1998) (analyzing the tension

between lawyers rights to free speech and association as
representative of clients and their role as officers of the court
and professional licensees).
15
II.
The issue of whether an attorney has a
right to free speech in the courtroom is an
important question of federal law.
The issue of an attorneys free speech rights in
court is a matter of exceptional societal importance.
Both attorneys and their clients would be impacted
should Mezibov and the decision in this case be
allowed to stand. The denial of an attorneys free
speech rights when acting on behalf of a client
implicates the clients right to free speech, the right
to free association, as well as the right to retain
counsel and right to a fair trial.
Petitioner readily acknowledges that attorney
speech is and should be subject to ethical,
procedural, and evidentiary restraints. It does not
follow from this premise that an attorneys job in the
courtroom . . . is fundamentally inconsistent with the
basic concept of free speech. Mezibov, 411 F.3d at
719. Even the ethical regulations on attorney speech
are subject to limitations imposed by the
Constitution.2 Designating attorney speech as
unprotected places it in a class with obscenity and
fighting words, speech almost devoid of social value.
This chills attorney speech and discourages attorneys
from presenting all the reasonable and wellgrounded arguments necessary for fair treatment
and proper resolution of cases. Lawyers who remain
within the bounds of the ethical and evidentiary
rules should not have to fear retaliation for otherwise
vigorously representing their clients. This ruling
leaves indigent litigants with publicly funded counsel
2
See Sullivan, supra note 1, at 569.
16
most vulnerable to abuse. Government funded
attorneys are at greater risk for First Amendment
retaliation than private counsel because the
government
may
easily
terminate
their
appointments due to their speech as happened in this
case.
As Judge Moore pointed out in her dissent to
Mezibov, the right to free speech is particularly
important when it concerns potential misconduct by
a public official. Mezibov, 411 F.3d at 725 (Moore, J.,
dissenting). Such speech lies at the core of the First
Amendment. It would be difficult to single out any
aspect of government of higher concern and
importance to the people than the manner in which
criminal trials are conducted. Gentile v. State Bar of
Nevada, 501 U.S. 1030, 1034-35 (1991) (Kennedy, J.).
Lawyers using professional care, circumspection and
discretion in exercising that right need not be
apprehensive of chastizement or penalties for having
the advocative courage to raise such a sensitive issue
to assure the client's right to a fair trial and the
integrity of our system for administering justice.
Mezibov, 411 F.3d at 726 (Moore, J., dissenting),
quoting United States v. Cooper, 872 F.2d 1, 5 (1st
Cir. 1989).
Professor Margaret Tarkington has discussed the
need for courts to recognize a free speech right for
attorneys to criticize the judiciary in court
proceedings.3 She argues that extending attorneys
3Margaret Tarkington, A Free Speech Right to Impugn Judicial

Integrity in Court Proceedings, 51 BOSTON COLLEGE L. REV. 363
(2010).
17
this right is necessary to maintain an unbiased and
competent judiciary, as well as to protect litigants
access to courts and due process rights.4 It is
shocking that a court would be more concerned with
ensuring respectful rhetoric regarding the judiciary
than with ensuring that criminal defendants are
afforded due process by impartial judges before
losing their liberty.5
Government action limiting an attorneys speech
also interferes with the clients First Amendment
rights. An attorney's primary role is to serve as his
or her client's representative and advocate in the
judicial process, and it is for this very reason that an
attorney's First Amendment rights in the courtroom
must be zealously guarded. Mezibov, 411 F.3d at
724 (Moore, J., dissenting). Lawyers have an ethical
duty to advocate on behalf of their clients, which
includes a duty to present all reasonable and wellgrounded arguments necessary for proper resolution
of the case. Velazquez, 531 U.S. at 545. If attorneys
must constantly fear retaliation for making
arguments that are within the bounds of the code of
professional responsibility but are distasteful to the
court or their employer, attorneys will shy away from
making such arguments even when doing so is in the
best interest of their clients.
This in turn implicates the clients Sixth
Amendment right to counsel, the right to hire and
consult an attorney, as well as the right to a fair
4Id.
5Id.
at 370.
at 421.
18
trial. In Gideon v. Wainwright, 372 U.S. 335 (1963),
the United States Supreme Court recognized that
state governments are required by the Sixth
Amendment to provide an attorney to all indigent
defendants facing a possible prison sentence. Despite
this guarantee, the public defender system is plagued
with problems. As the American Bar Association
(ABA) concluded in a report on the right to counsel in
criminal proceedings:Forty years after Gideon v.
Wainwright, indigent defense in the United States
remains in a state of crisis, resulting in a system that
lacks fundamental fairness and places poor persons
at constant risk of wrongful conviction.6
According to the ABA, this crisis is due to a
severe lack of funding for indigent defense services.
Low compensation rates make it difficult to find
competent and experienced attorneys willing to work
as public defenders. Those who are willing and able
to accept the inadequate compensation are burdened
with overwhelming caseloads and limited resources.7
These problems have only gotten worse in the ten
years since the ABA completed its study.8
6ABA
Standing Comm. On Legal Aid & Indigent Defendants,

Gideons Broken Promise: Americas Continuing Quest For
Equal
Justice
at
38
(Dec.
2004),
available
at
http://www.americanbar.org/content/dam/aba/administrative/leg
al_aid_indigent_defendants/ls_sclaid_def_bp_right_to_counsel_i
n_criminal_proceedings.authcheckdam.pdf.
7Id.
8Erwin Chemerinsky, Lessons from Gideon, 122 YALE L.J. 2676,
2679 (2013).
19
Faced with so many challenges to carrying out
their duty to represent their clients competently,
public defenders should not also have to worry about
the possibility of retaliation for making legitimate
arguments on behalf of indigent clients. As the
dissent in Mezibov recognized, the ability and
willingness of persons to serve as advocates for their
clients, particularly in matters adverse to the
government, will be severely hampered if persons
acting under color of state law are permitted to
retaliate with impunity against attorneys who
exercise their First Amendment rights on behalf of
their clients. Mezibov, 411 F.3d at 725 (Moore, J.,
dissenting); see also Eng, 552 F.3d at 1069([T]he
First Amendment's prohibition against state
retaliation for hiring a lawyer would ring hollow if
the state could simply retaliate for the lawyer's
advocacy on behalf of the client instead.). In order
for litigants to meaningfully assert any of these
rights, attorneys must be allowed to express them.
Here, Respondents fired Mr. Bright because he
criticized courtroom policies which deprived his
indigent criminal defense clientof his constitutional
rights, arguments that his clientwould undoubtedly
be permitted to make on his own behalf. Mr. Bright
also expressed criticism of policies that did not
directly affect his clients immediatecase but involved
the deprivation of the rights of criminal defendants
in Gallia County, a matter of undeniable public
concern. If attorneys cannot make statements
criticizing the judiciary without fear of retaliation, it
will compromise the integrity of the judiciary, as well
as litigants right to free speech, free association, and
due process. It would be ironic indeed if an exception
20
to the Constitution were to be recognized for the very
institution that has the chief responsibility for
protecting constitutional rights. United States v.
Grace, 461 U.S. 171, 185 (1983) (Marshall, J.,
concurring in part and dissenting in part).
III. Federal and State courts are divided as
to the extent of an attorneys right to free
speech in the courtroom.
There is significant variation among the circuits
as to what standard applies to attorney free speech.
The Sixth Circuits decision here lies at the very end
of the spectrum. No circuit has gone as far as the
Sixth Circuit in concluding that an attorney has no
free speech rights in the courtroom.
In contrast to the Sixth Circuits extreme position,
other circuits have found that attorneys do have
First Amendment rights in the courtroom. In Eng
552 F.3d 1062 (9th Cir. 2009), cert. denied, the Ninth
Circuit considered the case of a public employee who
was fired after his attorney made statements on his
behalf. The court cited Mezibov in recognizing that
when an attorney speaks on behalf of a client, the
attorneys right to free speech is almost always
grounded in the rights of the client. Id. at 1068.
However, the Ninth Circuit reasoned that Velazquez
compels the conclusion that government action
seeking to limit an attorney's advocacy on behalf of
a client implicates the client's, as well as the
attorney's, First Amendment intereststhe attorney
is, after all, the client's speaker hired to deliver the
client's message. Id. at 1069. This conclusion stands
21
in stark contrast to that reached in Mezibov and the
case at hand.
A number of circuits have recognized that
attorneys possess personal First Amendment free
speech rights without distinguishing between incourt and out-of-court speech. In United States v.
Scarfo, 263 F.3d 80 (3d Cir. 2001), the Third Circuit
wrote, A lawyer's right to freespeech in a pending
case may be circumscribed in the courtroom and is
limited outside the courtroom as well. Id. at 93.
However, [a]ny limitation on the attorney's speech
must be narrow and necessary, carefully aimed at
comments likely to influence the trial or judicial
determination. Id. Likewise, the Fourth Circuit has
written:
Lawyers have First Amendment rights of
free speech. They are not second class
citizens. They are first class citizens with
many privileges not enjoyed by other
citizens. With privilege, however, goes
responsibility, and codes of professional
responsibility have traditionally recognized
that a lawyer is subject to special
disciplinary sanctions when he neglects his
responsibility to his clients and to the
public.
Hirschkop v. Snead, 594 F.2d 356, 366 (4th Cir.
1979).
Circuit courts have often upheld courtroom
restrictions on attorney speech on the basis that such
restrictions were reasonable without reaching the
conclusion that attorneys have no free speech rights
in court whatsoever. For example, in Berner v.
22
Delahanty, 129 F.3d 20, 29 (1st Cir. 1997), the First
Circuit upheld a judges policy prohibiting attorneys
from wearing political pins in court on the basis that
the restriction was a reasonable, unbiased means of
maintaining political neutrality in the courtroom.
The court found no need to declare that attorneys
were entitled to no free speech rights at all.
Similarly, in Bank v. Katz, 424 F. App'x 67, 68 (2d
Cir. 2011), the Second Circuit held that an attorneys
free speech rights were not violated when he was
instructed not to wear a baseball hat and casual
attire when appearing in court because the
restriction was reasonable and viewpoint-neutral.
The inconsistencies between the circuits stems
from the fact that this Court has not issued clear
guidance as to what standard applies to in-court
attorney free speech. The Court has observed in dicta
that in the courtroom itself, during a judicial
proceeding, whatever right to freespeech an
attorney has is extremely circumscribed. Gentile,
501 U.S. at 1071. The Mezibov court relied on this
language in reaching its conclusion that attorneys
have no First Amendment protection for statements
made in court on behalf of a client. 411 F.3d at 717.
However, the mere fact that lawyers may be subject
to ethical restraints does not mean, of course, that
lawyers forfeit their First Amendment rights, only
that a less demanding standard applies. Gentile, 501
U.S. at 1082 (OConnor, J., concurring).
Petitioner proposes that in-court attorney speech
on behalf of an indigent criminal defendant client
should be protected by the First Amendment.
Reasonable, viewpoint-neutral restrictions on speech
23
are appropriate for the management of a courtroom.
The restrictions set by the code of professional
responsibility are also appropriate. However, policies
and retaliation which punish attorneys based on the
content of their legal arguments overstep the bounds
of the First Amendment. The Court should grant
this petition to clarify the First Amendment standard
that should apply when evaluating attorney speech
in court on behalf of an indigent criminal defendant
client.
IV.
The Question Presented is Ripe for
Review, and This Case Is An Appropriate
Vehicle for the Court to Consider the Issue of
Attorney Free Speech.
The Court will not benefit from further
percolation of this issue in the lower courts. There is
no realistic prospect of the conflict being resolved
without this Courts intervention. The Sixth Circuit
panel expressed its dismay at applying Mezibov as it
was required to do by the law of the circuit doctrine.
App. 28a-29a. However, the Sixth Circuit denied
rehearing en banc and the erroneous principle of law
expressed in Mezibov remains the law throughout
the Circuit. App. 1a-2a. Declining to intervene will
only lead to further repression of attorney speech
and inconsistent results in the lower courts.
Furthermore, this case is an appropriate vehicle
for resolving the question presented. The issue is
clear cut: whether an attorney does or does not have
any free speech rights in court. There is no
24
preliminary or threshold question that this Court
must decide before reaching the question presented.
CONCLUSION
Petitioner respectfully requests that the Court
grant this petition. The Sixth Circuit has established
an erroneous principle of law on an important federal
issue. Leaving the Sixth Circuits holding in this case
intact would not only jeopardize Petitioners First
Amendment rights, but would also have far-reaching
effects on the First Amendment rights to free speech
and freedom of association of indigent criminal
defendants, as well as their due process rights to
counsel and a fair trial.
Respectfully submitted,
Alphonse A. Gerhardstein
Counsel of Record for Petitioner
Jacklyn Gonzales Martin
GERHARDSTEIN &BRANCH
CO. LPA
423 Walnut Street #400
Cincinnati, OH 45202
(513) 621-9100
agerhardstein@gbfirm.com
Date: January 16, 2015
APPENDIX
i
APPENDIX
TABLE OF CONTENTS
Appendix A
Order Denying Panel Rehearing en

banc in the United States Court of
(August 22, 2014). . . . . . . . . . . . . . . .1a
Appendix B
Opinion in the United States Court of

(June3, 2014) . . . . . . . . . . . . . . . . . . .3a
Appendix C

(July 29, 2013) . . . . . . . . . . . . . . . . .42a
Appendix D

District of Ohio Eastern Division:
Board of Commissioners & County
Public Defender Commission
(June 3, 2013) . . . . . . . . . . . . . . . . . 45a
Appendix E

District of Ohio Eastern Division:
Criminal Defense Corp.
(June 3, 2013) . . . . . . . . . . . . . . . . . 53a
1a
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
[Filed: August 22, 2014]
No. 13-3907
ROBERT W. BRIGHT,
Plaintiff-Appellant,
v.
GALLIA
COUNTY
OHIO;
BOARD
OF
COMMISSIONERS OF GALLIA COUNTY, OHIO;
GALLIA
COUNTY
PUBLIC
DEFENDER
COMMISSION; AND GALLIA COUNTY CRIMINAL
DEFENSE CORPORATION,
Defendants-Appellees.
ORDER
BEFORE: MOORE, WHITE, and DONALD, Circuit
Judges.
The court received a petition for rehearing en
banc. The original panel has reviewed the petition for
rehearing and concludes that the issues raised in the
petition were fully considered upon the original
submission and decision of the case. The petition
then was circulated to the full court. Less than a
2a
majority of the judges voted in favor of rehearing en
banc.
Therefore, the petition is denied.
ENTERED BY ORDER OF THE COURT
/s/ Deborah S. Hunt
Deborah S. Hunt, Clerk
3a
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Nos. 13-3451; 3907
ROBERT W. BRIGHT,
Plaintiff-Appellee (13-3451),
Plaintiff-Appellant (13-3907),
v.
GALLIA
COUNTY,
OHIO;
BOARD
OF
COMMISSIONERS OF GALLIA COUNTY, OHIO;
GALLIA
COUNTY
PUBLIC
DEFENDER
COMMISSION; and GALLIA COUNTY CRIMINAL
DEFENSE CORPORATION,
Defendants-Appellees (13-3907),
DAVID DEAN EVANS,
Defendant-Appellant (13-3451).
_____________________________________________
13-3451 & 13-3907
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:12-cv-00800James L. Graham, District
Judge.
Argued: March 12, 2014
Decided and Filed: June 3, 2014
4a
Before: MOORE, WHITE, and DONALD, Circuit
Judges.
_______________________________________________
COUNSEL
ARGUED: Linda L. Woeber, MONTGOMERY,
RENNIE& JONSON, Cincinnati, Ohio, for Appellant
in
13-3451.
Alphonse
A.
Gerhardstein,
GERHARDSTEIN & BRANCH, CO. LPA, Cincinnati,
Ohio, for Appellee in 13-3451 and Appellant in 133907. Daniel T. Downey, FISHEL HASS KIM
ALBRECT LLP, Columbus, Ohio, for Appellees in 133907. ON BRIEF: George D. Jonson, Lisa M. Zaring,
MONTGOMERY, RENNIE& JONSON, Cincinnati,
Ohio, for Appellant in 13-3451. Alphonse A.
Gerhardstein,
Jacklyn
Gonzales
Martin,
GERHARDSTEIN & BRANCH, CO. LPA, Cincinnati,
Ohio, for Appellee in 13-3451 and Appellant in 133907. Daniel T. Downey, Stacy V. Pollock, FISHEL
HASS KIM ALBRECT LLP, Columbus, Ohio, for
Appellees in 13-3907.
_______________________________________________
OPINION
KAREN NELSON MOORE, Circuit Judge. In this
case, there is no debate that Judge David Dean
Evans failed to meet the minimum expectations for
members of the judiciary: He overreacted to attorney
Robert Brights criticisms and inappropriately
removed Bright from nearly seventy felony cases.
The judges high-handed actions caused Bright great
hardship, but litigation seeking to hold Judge Evans
personally liable is not the solution. Generally, we
rely upon the judges further up the judicial hierarchy
5a
to review and correct the rulings of lower courts.
Only in a few circumstances do we allow lawsuits
against individual judges to proceed, and for good
reason. The specter of facing a lawsuit naturally
encourages overly timid judging and presents a direct
threat to judicial independence. While Judge Evanss
conduct was worthy of censure, it does not fit within
one of the exceptions to absolute judicial immunity;
thus, we must REVERSE the district courts denial
of immunity.
Unfortunately for Bright, our case law also
requires us to side against him in his lawsuit against
the Gallia County Board of Commissioners (the
Board), the Gallia County Public Defender
Commission (the Commission), and the Gallia
County Criminal Defense Corporation (the
Corporation). Under Mezibov v. Allen, 411 F.3d 712
(6th Cir. 2005), the First Amendment offers no
protection to an attorney for his speech in court. Id.
at 716. Without such protection, Bright cannot state
a valid claim under 42 U.S.C. 1983, and we must
AFFIRM the district courts dismissal.
I. BACKGROUND
Gallia County lies along the Ohio River in
Southern Ohio, bordering West Virginia. A board of
commissioners governs the county and is responsible
for providing indigent criminal defendants with legal
representation. To that end, the Board established
the Commission pursuant to Ohio Revised Code
120.13. According to this statute, the Commission is
to have five membersthree chosen by the Board;
two chosen by the countys Court of Common Pleas
6a
judgeand must either employ criminal defense
attorneys directly or hire outside counsel. In this
case, the Commission contracted with the non-profit
Corporation to hire and retain defense attorneys,
who would represent indigent criminal defendants.
In 2011, the Corporation hired Bright to be one of
these county public defenders at a rate of $5,600 per
month. R. 18 at 5 (Am. Compl. at 15) (Page ID
#141). As part of his duties, on July 25, 2011, Bright
represented R.G. before Judge Evans, the countys
only Court of Common Pleas judge. Bright negotiated
a plea agreement between the prosecutor and R.G.,
but R.G. hesitated to accept it during the plea
colloquy. According to Bright, R.G. was under the
mistaken assumption that he could return home for a
short period of time before leaving for prison. R. 18-2
at 2 (Bright Mot.) (Page ID #154). Mere seconds
after refusing to accept the plea agreement, R.G.
informed Bright and Judge Evans that he would take
the deal after all. Id. at 23 (Page ID #15455).
Judge Evans refused, stating: No, were not going to
play games. Id. at 3 (Page ID #155). Judge Evans
then ordered trial to be scheduled.
On July 28, 2011, Bright and the prosecutor met
with Judge Evans in his chambers in an attempt to
convince the judge to accept R.G.s plea. Judge Evans
refused. On August 3, 2011, Bright filed a Motion to
Accept Plea with the court. R. 18 at 6 (Am. Compl.
at 23) (Page ID #142). In this motion, Bright stated
that [i]t is arbitrary and unreasonable or [Judge
Evans] to refuse to [hold a hearing regarding
whether to accept R.G.s plea as voluntarily,
knowingly, and intelligently made]. R. 18-2 at 6
7a
(Bright Mot.) (Page ID #158). He criticized Judge
Evanss blanket policy of a drop dead date
concerning plea agreements by which Judge Evans
refused to accept a guilty plea from the defendant or
a prosecutors decision to drop charges once a certain
date passed. Id. at 8 (Page ID #160). Bright called
such a policy an abuse of discretion because [Judge
Evanss] position and attitude is unreasonable and/or
arbitrary and/or unconscionable. Id. at 9 (Page ID
#161). Bright also took issue with Judge Evanss
failure to conduct a full colloquy with R.G. regarding
his willingness to plead guilty, id.at 16 (Page ID
#168), with Judge Evanss categorical refusal to
accept Alford/no contest pleas, id. at 16 n.5 (Page
ID #168), and with Judge Evanss one strike and
youre out policy on community control violations,
id. at 1617 (Page ID #16869). Throughout the
motion, Bright cited case law and made legal
arguments. His language was emphatic and forceful
in many places (for example, calling Judge Evanss
actions unconscionable), but he used zero profanity
and made no charges of ethical impropriety.
According to Bright, on August 5, 2011, Judge
Evans contacted the Office of Disciplinary Counsel of
the Supreme Court of Ohio . . . and filed a grievance
against . . . Bright on August 8, 2011. R. 18 at 6
(Am. Compl. at 24) (Page ID #142). Also on August
8, Judge Evans filed a public journal entry in which
he declared that . . . Brights motion, although not
rising to the level of misconduct or contempt, had
created a conflict with the Court and ordered that
Bright be removed from the case of [R.G.]. Id. (Am.
Compl. at 26) (Page ID #142). In his briefing on
appeal, Bright claims that the entry stated:
8a
By such conduct [Bright] has created
conflict with the Court whereby in this case
or for that matter any other case in the
future, when [Bright] does not agree with a
decision or ruling by the Court, instead of
being critical by accusation of being
arbitrary, unreasonable, unconscionable or
of abusing discretion, [Bright] simply may
accuse the [C]ourt of being bias[ed] or
prejudice[d] as it relates to him. The Court
must not only avoid any impropriety, bias
or prejudice but must avoid any appearance
of such. The expressions and attitudes of
Defense Counsel [Bright] as exhibited and
announced in the instant motion toward
this Court compromises the Courts ability
to avoid any appearance of bias, prejudice,
or to be fair and impartial as it relates to
Defense Counsel [Bright] regardless [of]
how hard it tries or what strides it makes
toward guaranteeing that there would be
no bias, prejudice and that it would be fair
and impartial.
Bright Appellee Br. at 9 (emphasis deleted).
The next day, Judge Evans filed public journal
entries in every other felony case that Bright had
before Judge Evans and removed Bright from each of
those cases, approximately seventy in total. R. 18 at
67 (Am. Compl. at 27) (Page ID #14243). In its
opinion denying Judge Evans absolute judicial
immunity, the district court reproduced an example
of these entries:
9a
Now comes the Court and orders that
Michael L. Barr be substituted for counsel
for the defendant. Attorney Robert W.
Bright is relieved of further obligation due
to the conflict he has created with the
Court and as described in the case of State
of Ohio v. [R.G.],to which reference is here
made, and further due [to] the Courtss [sic]
inquiry to the Office of Disciplinary
Counsel, the Supreme Court of Ohio
regarding Mr. Brights conduct. Further,
the Court finds it is not feasible/practicable
to request the Ohio Supreme Court to
assign a visiting judge to each of the
approximately fifty to seventy cases
currently handled by Mr. Bright due to
financial burden to Gallia County judicial
economy, scheduling of the court, the
constitutional rights of the defendant, and
the constraints/requirements of a speedy
trial guaranteed to the defendant. The
Court finds the simplest solution to this
created conflict is to appoint new counsel
for the defendant....
R. 43 at 78 (D. Ct. Op. Denying Immunity) (Page ID
#410411)
(citation
omitted;
emphasis
deleted).Bright alleges that he sent a letter to Judge
Evans in an attempt[] to amicably resolve the
situation ... R. 18 at 7 (Am. Compl. at 30) (Page ID
#143). Judge Evans did not respond. Id.
On September 7, 2011, the Corporation
terminated . . . Brights employment as a Public
Defender because he could not practice before Judge
10a
Evans. Id. (Am. Compl. at 32) (Page ID #143).
Bright alleges that the Corporation did so without
[holding] a hearing or [providing] other due
process... Id.
On September 4, 2012, Bright filed suit in district
court against Judge Evans, the Board, and the
Corporation. On November 29, 2012, he amended his
complaint to include the Commission. In the
Amended Complaint, Bright alleged several causes of
action. First, Bright claimed that the Board, the
Commission, the Corporation, and Judge Evans
violated his First and Fourteenth Amendment rights
to free speech, to free association, to substantive due
process, to procedural due process, and to equal
protection. R. 18 at 9 (Am. Compl. at 47) (Page ID
#145). These violations, he asserted, are cognizable
under 42 U.S.C. 1983. Id. Second, Bright alleged
that Judge Evans tortiously interfered with Brights
contractual rights with the Corporation in violation
of state common law. Id. at 10 (Am. Compl. at 48
49) (Page ID #146). Third, Bright averred that Judge
Evans tortiously interfered with Brights business
relationship with the Corporation, also in violation of
state common law. Id. (Am. Compl. At 5051)
(Page ID #146). Fourth, Bright claimed that the
Corporation breached the contract between them by
terminating Brights employment without good
cause and in violation of public policy. Id. (Am.
Compl. at 52) (Page ID #146). Fifth and finally,
Bright alleged that Judge Evans invaded Brights
privacy by publicly announc[ing] that Judge Evans
had filed a grievance with the Office of Disciplinary
Counsel in approximately seventy public journal
entries, a violation of the Ohio professional-
11a
responsibility rules and common law. Id. (Am.
Compl. at 53) (Page ID #146).
On December 12, 2013, Judge Evans filed a
motion to dismiss the Amended Complaint, arguing
inter alia that the doctrine of absolute judicial
immunity protects him from suits for monetary
damages. R. 21 at 7 (Evans Mot. to Dismiss) (Page ID
#189). The district court denied this motion on April
2, 2013. R. 43 at 22 (D. Ct. Op. Denying Immunity)
(Page ID #425). The district court found that Judge
Evanss decisions to remove Bright from felony cases
pending before him were judicial actions. Id. at 12
(Page ID #415). However, the district court concluded
that Judge Evans was not entitled to absolute
judicial immunity because his actions were
completely outside of his jurisdiction. Id. at 13 (Page
ID #416); see id.at 22 (Page ID #425). Judge Evans
appeals this decision. R. 46 at 1 (Evans Notice of
Appeal) (Page ID #460).
The other defendants also filed motions to
dismiss. The Board and the Commission filed Rule
12(b)(6) motions, claiming that they were too far
removed from the alleged actions in the Amended
Complaint to be found liable. R. 20 at 7 (Bd. Mot. to
Dismiss) (Page ID #179); R. 28 at 10 (Commn Mot. to
Dismiss) (Page ID #270). In addition, the
Commission asserted that Bright failed to identify
and then connect the Commission to a policy or
custom to impose liability under Monellv.
Department of Social Services, 436 U.S. 658 (1978),
and its progeny. R. 28 at 78 (Commn Mot. to
Dismiss) (Page ID #26768). The district court
concluded that Bright failed to plead sufficiently that
12a
the Board or the Commission retaliated against him
for exercising his constitutional rights or that
liability attaches to the Board or the Commission
under the Monell doctrine. See R. 53 at 46 (D. Ct.
Order Granting Bd. & Commn Mot. to Dismiss)
(Page ID #53941).
The Corporation, taking a different line of attack,
argued that the district court lacked subject-matter
jurisdiction under Parratt v. Taylor, 451 U.S. 527
(1981), and asked the district court to dismiss
Brights suit pursuant to Federal Rule of Civil
Procedure 12(b)(1). R. 30 at 1 (Corp. Mot. to Dismiss)
(Page ID #276). The district court denied this motion
and ordered supplemental briefing on whether Bright
sufficiently pleaded that the Corporation deprived
Bright of a federal right. R. 44 at 6 (D. Ct. Rule
12(b)(1) Op.) (Page ID #453). The parties complied,
and in a subsequent order, the district court
determined that Brights pleadings were deficient
and dismissed for failure to state a claim under Rule
12(b)(6). R. 52 at 1117 (D. Ct. Order Granting Corp.
Mot. to Dismiss) (Page ID #52935). The district
court also declined to exercise supplemental
jurisdiction over Brights state-law claim against the
Corporation and dismissed it without prejudice. Id.
at 1617 (Page ID #53435).
Bright requested that the district court certify the
dismissals of the claims against the Board, the
Commission, and the Corporation for immediate
appeal under Rule 54(b), and the district court
agreed to do so. R. 59 at 2 (D. Ct. Rule 54(b) Order)
(Page ID #567). These appeals followed.
13a
II. JURISDICTION
The district court had jurisdiction to hear Brights
1983 claims under 28 U.S.C. 1331 and to hear his
state-common-law claims under 28 U.S.C. 1367. We
have jurisdiction to hear appeals of final judgments
under 28 U.S.C. 1291. Even though the denial of
absolute judicial immunity is not a final judgment, it
is immediately appealable under the collateral order
doctrine. See Mitchell v. Forsyth, 472 U.S. 511, 528
29 (1985); Brookings v. Clunk, 389 F.3d 614, 61617
(6th Cir. 2004). Furthermore, the district court,
finding no just reason to delay appellate review of
[its] dismissal of the Board . . . , the . . . Commission,
or the . . . Corporation, entered final judgment with
respect to those entities under Federal Rule of Civil
Procedure 54(b). R. 59 at 2 (D. Ct. Rule 54(b)
Certification) (Page ID #567). This certification was
proper, and therefore, we have jurisdiction to hear
Brights appeal of the Rule 12(b)(6) dismissals. See
Planned Parenthood Sw. Ohio Region v. DeWine, 696
F.3d 490, 500 (6th Cir. 2012); EJS Properties, LLC v.
City of Toledo, 689 F.3d 535, 537 (6th Cir. 2012).
III. ABSOLUTE JUDICIAL IMMUNITY
Judge Evans moved to dismiss Brights 1983
suit against him on grounds of absolute judicial
immunity from suit. The district court denied this
request, a decision that was in error. Judge Evanss
actions fell short of expectations, but they were
actions judicial in nature and taken in cases over
which he had jurisdiction. As a result, he is entitled
to absolute judicial immunity. We REVERSE the
district courts decision and REMAND with
14a
instructions to dismiss Brights suit against Judge
Evans.
A. Standard of Review
We review the district courts denial of immunity
de novo as it involves purely a legal question. Archie
v. Lanier, 95 F.3d 438, 440 (6th Cir. 1996). In
determining whether Judge Evans qualifies for
absolute judicial immunity at this stage in the
litigation, we must construe the complaint in the
light most favorable to the plaintiff, accept all factual
allegations as true, and determine whether the
plaintiff undoubtedly can prove no set of facts in
support of his claims that would entitle him to
relief. Barnes v. Winchell, 105 F.3d 1111, 1114 (6th
Cir. 1997) (quoting Allard v. Weitzman (In re
DeLorean Motor Co.), 991 F.2d 1236, 1240 (6th Cir.
1993)). Judge Evans, as [t]he proponent of a claim to
absolute immunity[,] bears the burden of establishing
the justification for such immunity. Antoine v. Byers
& Anderson, Inc., 508 U.S 429, 432 (1993); see also
Cooper v. Parrish, 203 F.3d 937, 944 (6th Cir. 2000).
B. Legal Standard and Application
It is a well-entrenched principle in our system of
jurisprudence that judges are generally absolutely
immune from civil suits for money damages. Barnes,
105 F.3d at 1115 (citing, inter alia, Mireles v. Waco,
502 U.S. 9, 9 (1991); Bradley v. Fisher, 80 U.S. (13
Wall.) 335, 351 (1872)). The passage of 42 U.S.C.
1983 did nothing to change this ancient
understanding. See Briscoe v. LaHue, 460 U.S. 325,
334 (1983); Pierson v. Ray, 386 U.S. 547, 554 (1967).
Importantly, [t]his immunity . . . is not for the
protection or benefit of a malicious or corrupt judge,
15a
but for the benefit of the public, whose interest it is
that the judges should be at liberty to exercise their
functions with independence and without fear of
consequences. Pierson, 386 U.S. at 554 (internal
quotation marks omitted). If judges were personally
liable for erroneous decisions, the resulting
avalanche of suits, most of them frivolous but
vexatious, would provide powerful incentives for
judges to avoid rendering decisions likely to provoke
such suits. Forrester v. White, 484 U.S. 219, 22627
(1988) (citing Forrester v. White, 792 F.2d 647, 660
61 (7th Cir. 1986) (Posner, J., dissenting)). The
resulting timidity would be hard to detect or control,
and it would manifestly detract from independent
and impartial adjudication. Id. at 227. In general,
litigants can protect themselves from judicial errors
through the appellate process or other judicial
proceedings without resort to suits for personal
liability. See id. at 226 27.
As a result of these strong policy justifications for
the doctrine, absolute judicial immunity can be
overcome only in two instances: First, a judge is not
immune from liability for nonjudicial actions, i.e.,
actions not taken in the judges judicial capacity.
Second, a judge is not immune for actions, though
judicial in nature, taken in the complete absence of
all jurisdiction. Mireles, 502 U.S. at 1112 (internal
citations omitted). The parties focus upon the latter
exception, given the district courts finding that
Judge Evans lacked all jurisdiction to remove Bright
from the nearly seventy felony cases before him. See
R. 43 at 1213, 15 (D. Ct. Op. Denying Immunity)
(Page ID #41516, 418).
16a
The Supreme Court has long recognized that
jurisdiction is a tricky concept: Indeed some of the
most difficult and embarrassing questions which a
judicial officer is called upon to consider and
determine relate to his jurisdiction, or that of the
court held by him, or the manner in which the
jurisdiction shall be exercised. Bradley, 80 U.S. at
352. Accordingly, [t]he term jurisdiction is to be
broadly construed to effectuate the purposes of
judicial immunity. Barnes, 105 F.3d at 1122 (citing
Stump v. Sparkman, 435 U.S. 349, 356 (1978)). The
Supreme Court has also acknowledged that there is a
difference between excess of jurisdiction and the
clear absence of all jurisdiction over the subjectmatter. Bradley, 80 U.S. at 351. We have stated that
[o]nly in the absence of subject matter jurisdiction
are judicial actors devoid of the shield of immunity.
Holloway v. Brush, 220 F.3d 767, 773 (6th Cir. 2000)
(en banc); see also Barnes, 105 F.3d at 1122
(Generally, where a court has some subject matter
jurisdiction, there is sufficient jurisdiction for
immunity purposes.). And so, [e]ven grave
procedural errors or acts taken when no statute
purports to confer on the court the authority
purportedly exercised will not deprive a judge of
judicial immunity. Stern v. Mascio, 262 F.3d 600,
607 (6th Cir. 2001).
Under this standard, the district court erred in
denying Judge Evans absolute judicial immunity.
Judge Evanss actions were petty, unethical, and
unworthy of his office, see Ohio State Bar Assn v.
Evans, 999 N.E.2d 674 (Ohio 2013) (sanctioning
Judge Evans for his behavior toward Bright), but
Judge Evans and the Court of Common Pleas had
17a
subject-matter jurisdiction over the underlying
criminal proceedings, see Ohio Rev. Code 2931.03.
As a result, we cannot say that Judge Evans acted
clearly outside the subject matter of the court over
which he presides. Brookings, 389 F.3d at 623
(quoting Johnson v. Turner, 125 F.3d 324, 334 (6th
Cir. 1997)).
This courts decision in Stern is helpful for
understanding the scope of judicial immunity in
cases such as this one. In that case, a Court of
Common Pleas judge identified a potential conflict
between the judge and one partys attorney in a case,
and he asked both parties to brief the issue. Stern,
262 F.3d at 603. Instead of filing a brief, plaintiffs
counsel filed an Affidavit of Disqualification in the
Ohio Supreme Court pursuant to Ohio Revised Code
2701.03. Id. at 604. This provision immediately
divests the state-court judge of any authority to
preside in the [case] until the [C]hief [J]ustice of the
[Ohio] [S]upreme [C]ourt . . . rules on the affidavit . .
. . 2701.03(D)(1). Angry at counsel for filing the
affidavit, the judge ordered him into the courtroom
and found him in contempt. Stern, 262 F.3d at 605.
The Ohio Supreme Court held that this particular
judge patently and unambiguously lack[ed]
jurisdiction to make such a ruling. Id. at 609
(quoting State ex rel. Stern v. Mascio, 691 N.E.2d
253, 255 (Ohio 1998)) (alteration in original).
Nonetheless, we distinguished between jurisdiction
to proceed in the case and jurisdiction over the
subject matter of the case. See id. Because the judge
and the Court of Common Pleas retained subjectmatter jurisdiction over the underlying proceeding
under Ohio law, this court held that the judge still
18a
enjoyed absolute judicial immunity. Id. at 60910,
n.5.
Here, Judge Evans retained subject-matter
jurisdiction over the criminal cases in which Bright
had been appointed. Judge Evanss actions, however
unprofessional and misguided, took place in the
context of those prosecutions. Therefore, Judge
Evans did not clearly lack all jurisdiction, and
absolute judicial immunity shields him from suit.
The district court advanced several arguments to
the contrary, and Bright continues and supplements
those counterarguments on appeal. None of them are
convincing. First, Bright maintains that Judge Evans
acted without jurisdiction when he punished or
disciplined Bright, a responsibility given exclusively
to the Ohio Supreme Court. He has a point: the Ohio
Constitution vests the Ohio Supreme Court with
exclusive original jurisdiction over the regulation of
the bar. See Ohio Const. art. IV, 2(B)(1)(g); Melling
v. Stralka, 465 N.E.2d 857, 85960 (Ohio 1984). This
fact distinguishes this case from Bradley, in which
the Supreme Court of the United States asserted that
[the] power of removal from the bar is possessed by
all courts which have authority to admit attorneys to
practice. 80 U.S. at 354. The problem for Bright,
however, is that Judge Evanswhether his actions
constitute discipline or notwas not sitting without
jurisdiction over a disciplinary hearing; rather, he
took these actions while overseeing nearly seventy
criminal prosecutions. Thus, under Stern and similar
cases, he still had subject matter jurisdiction over
those proceedings in which his actions took placea
fact that preserves his absolute immunityeven if he
19a
clearly lacked jurisdiction to take such actions
against Bright independent of the criminal
prosecutions.
Second and similarly, Bright argues that Court of
Common Pleas judges lack the authority to disqualify
counsel from every case currently before their court
and in the future. Again, this argument founders
against Stern. In addition, though, it is not so clear
that Bright is correct on the merits of his point. The
Ohio Supreme Court has stated repeatedly that [a]
trial court has the inherent power to regulate the
practice before it and protect the integrity of its
proceedings . . . including the authority and duty to
see to the ethical conduct of attorneys . . . . Mentor
Lagoons, Inc. v. Rubin, 510 N.E.2d 379, 382 (Ohio
1987) (quoting Royal Indem. Co. v. J.C. Penney Co.,
501 N.E.2d 617, 620 (Ohio 1986)) (ellipses in
original). In response, Bright cites State ex rel. Buck
v. Maloney, 809 N.E.2d 20 (Ohio 2004), and State ex
rel. Jones v. Stokes, 551 N.E.2d 220 (Ohio Ct. App.
1989), for support and as evidence that Judge
Evanss actions fell outside this inherent power. The
state-court judges in those cases issued blanket bans
against certain attorneys practicing before them at
the time or in the future, and the Ohio courts
declared these actions violated the Ohio Supreme
Courts
exclusive
jurisdiction
over
attorney
disciplinary matters. See Maloney, 809 N.E.2d at 23;
Stokes, 551 N.E.2d at 222.
These cases are distinguishable on several
different grounds. One, the judges actions in
Stokeswere divorced entirely from a particular
proceeding. Here, Judge Evans acted only in current
20a
cases over which he was presiding. By acting only in
current cases, Judge Evans was arguably availing
himself of his inherent powers to regulate his
courtroom. Two, Maloney and Stokes both involved
prospective bans. Here, Judge Evans removed Bright
only from pending cases over which he had
jurisdiction. Admittedly, Judge Evans stated that a
conflict existed between Bright and himself in R.G.
or for that matter any other case in the future.
Appellee Br. at 9 (internal quotation marks omitted;
emphasis deleted). However, Judge Evans has not
definitively banned Bright, as the attorneys in
Maloney and Stokes certainly were. Without a
definite statement or standing order, Judge Evanss
actions fall short of the other judges orders in the
cases cited by Bright. Thus, it is not clear that Judge
Evans was usurping the exclusive jurisdiction of the
Ohio Supreme Court.
Third, Bright argues that civil litigation is the
only avenue through which he can combat Judge
Evanss misconduct and, thus, that the district court
correctly denied Judge Evans absolute immunity. On
this point, the cases that Bright cites in his own brief
sow his arguments undoing. In Stern, the attorney
who was eventually the subject of the judges wrath
filed an affidavit of disqualification with the Ohio
Supreme Court, a motion that prevents a judge from
acting in an attorneys case automatically. 262 F.3d
at 604 (citing Ohio Rev. Code 2701.03). Such a
filing, if it were made in this case, would have
required the Ohio Supreme Court to answer whether
Judge Evans was bias[ed] or prejudice[d] for or
against a party . . . or a partys counsel . . . before
Judge Evans could proceed in the cases once assigned
21a
to Bright. 2701.03(A) (emphasis added). Bright, as
he concedes, could also have filed for a writ of
prohibition. See Bright Appellee Br. at 15. While this
writ is extraordinary, the aggrieved attorneys in
Stern, Maloney, and Stokes all followed this
procedure and were successful. According to the
Supreme Court of the United States, these
mechanisms of review, which are largely free of the
harmful side effects inevitably associated with
exposing judges to personal liability are the correct
way to combat judicial wrongdoing. Forrester, 484
U.S. at 22627. While the harm to Bright has been
great, there is no extraordinary reason to combat
judicial misconduct through private litigation here.
And thus, there is no reason to deny absolute judicial
immunity.
***
While we ultimately conclude that Judge Evans is
entitled to absolute judicial immunity, we cannot
help but add our voices to the chorus of
condemnation for his actions. By operating in such
an unreasonable manner, Judge Evans has brought
dishonor on himself and his position. The Ohio
Supreme Court properly sanctioned him for this
behavior. But we say again, absolute judicial
immunity is not designed to protect individual bad
actors; rather it is in place to protect judicial
independence. In our legal system, there is often
someone who loses his money, his liberty, or his life.
This cannot be helped. But if that defeated party
could turn around and file suit against the judge or
judges in his case, then the whole system would
unravel as the threat of suit crept into the judges
22a
minds. This conclusion does little to help Bright, who
was wronged by Judge Evans. It, however, preserves
the independent judiciary. For the above reasons, we
hold that Judge Evans is entitled to absolute judicial
immunity.
IV. CLAIMS AGAINST THE CORPORATION
Bright alleged two causes of action against the
Corporation in the Amended Complaint: (1) that the
Corporation, under color of law, deprived [him] of
clearly established rights, privileges, and immunities
secured by the First and Fourteenth Amendment[s]
to the United States Constitution including but not
limited to the right to free speech, . . . substantive
due process, procedural due process[,] and equal
protection under the law; and (2) that the
Corporation terminated its contract of employment
with [him] without good cause and in violation of
public policy. R. 18 at 9, 10 (Am. Compl. at 47,
52) (Page ID #145, 146). The district court dismissed
Brights federal claims in their entirety under Rule
12(b)(6). R. 52 at 17 (D. Ct. Order Granting Corp.
Mot. to Dismiss) (Page ID #535). Given that the
breach-of-contract claim presented an issue of first
impression under Ohio law, the district court
declined to exercise supplemental jurisdiction over it
and dismissed the claim without prejudice. Id. at 16
(Page ID #534). We AFFIRM, though partially on
other grounds.
23a
A. Standard of Review
We review de novo the district courts dismissal of
a claim pursuant to Rule 12(b)(6). Seaton v.
TripAdvisor LLC, 728 F.3d 592, 596 (6th Cir. 2013).
In reviewing a motion to dismiss, we must accept
non-conclusory allegations of fact in the complaint as
true and determine if the plaintiff has stated a
plausible claim for relief. Orton v. Johnnys Lunch
Franchise, LLC, 668 F.3d 843, 846 (6th Cir. 2012)
(citing Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009)).
Conclusory allegations or legal conclusions
masquerading as factual allegations will not suffice.
Eidson v. Tenn. Dept of Childrens Servs., 510 F.3d
631, 634 (6th Cir. 2007) (citing Mezibov v. Allen, 411
F.3d 712, 716 (6th Cir. 2005)). Further, we are not
confined to the grounds relied on by the district court
in affirming the courts dismissal; rather, we may
affirm the district courts dismissal of [the plaintiffs]
claims on any grounds . . . . Robert N. Clemens Trust
v. Morgan Stanley DW, Inc., 485 F.3d 840, 845 (6th
Cir. 2007) (citing Hoffman v. Comshare, Inc. (In re
Comshare, Inc. Sec. Litig.), 183 F.3d 542, 54849 (6th
Cir. 1999)).
B. Section 1983 Claims
A plaintiff must make two showings to survive a
motion to dismiss his 1983 action: one, a plaintiff
must allege that a defendant acted under color of
state law; and two, a plaintiff must allege that the
defendants conduct deprived the plaintiff of rights
secured under federal law. Handy-Clay v. City of
Memphis, 695 F.3d 531, 539 (6th Cir. 2012) (citing
Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722
(6th Cir. 2010)). No party contends that state action
24a
is not present, so we turn to each claim to determine
whether the Corporation deprived Bright of a right
protected by federal law.
1. First Amendment Retaliation Claim
Bright first claims that the Corporation
terminated its employment relationship with him in
retaliation for Bright engaging in speech protected by
the First Amendment. For a retaliation claim to
survive a motion to dismiss, [a] 1983 plaintiff must
plead factual allegations sufficient to establish that
(1) the plaintiff engaged in constitutionally protected
conduct; (2) an adverse action was taken against the
plaintiff that would deter a person of ordinary
firmness from continuing to engage in that conduct;
and (3) the adverse action was motivated at least in
part by the plaintiffs protected conduct. HandyClay, 695 F.3d at 539 (quoting Fritz, 592 F.3d at
723)). There can be little argument that losing ones
employment for filing motions critical of a judge
would deter an ordinary person from continuing to do
so. See Thaddeus-X v. Blatter, 175 F.3d 378, 396 (6th
Cir. 1999) (en banc). Whether Bright satisfied the
first and third requirements is a closer question, and
we address them in reverse order.
a. Causal Connection
The district court dismissed Brights action
against the Corporation after concluding that Bright
failed to allege facts that would support the third,
causal-connection prong. We disagree with this
conclusion.
Determining whether a causal connection has
been adequately alleged in the complaint requires a
25a
two-part inquiry: A plaintiff must show both (1) that
the adverse action was proximately caused by an
individual defendants acts, but also (2) that the
individual taking those acts was motivated in
substantial part by a desire to punish an individual
for exercise of a constitutional right. King v.
Zamiara, 680 F.3d 686, 695 (6th Cir. 2012) (quoting
Thaddeus-X, 175 F.3d at 386). Here, there is no
debate that the Corporation caused Brights
employment to be terminated. The question is
whether Bright alleged facts that would allow a jury
to find that [the Corporation] was motivated at least
in part by Brights speech. Paige v. Coyner, 614 F.3d
273, 282 (6th Cir. 2010).1 In prior cases, we have
found two factors to be especially helpful in
determining whether motive existed: (1) whether the
defendant knew of the plaintiffs protected conduct;
and (2) whether the chronology of events supports
an inference of causation, such as temporal
proximity between the speech and the adverse action.
1The burden of persuasion on this prong then shifts to the

Corporation, and the Corporation is of course free to rebut
these allegations on summary judgment or at trial by
establishing that [it] was motivated by any number of
nonretaliatory goals. Paige, 614 F.3d at 283; see also
Thaddeus-X, 175 F.3d at 399 (recognizing burden-shifting
obligation of plaintiff at summary-judgment stage). When
evaluating the sufficiency of a complaint, however, the district
court should not be weighing the strength of competing
inferences. SeePaige, 614 F.3d at 283. In general, [a]
defendants motivation for taking action against the plaintiff is
usually a matter best suited for the jury. Id. at 282 (citing
Harris v. Bornhorst, 513 F.3d 503, 51920 (6th Cir. 2008)).
26a
Handy-Clay, 695 F.3d at 545 46; see also King, 680
F.3d at 695; Paige, 614 F.3d at 28283.
Clearly, Bright alleged that the Corporation knew
of his conduct. See R. 18 at 7, 89 (Am. Compl. at
32, 39, 42) (Page ID #143145). He also implicitly
noted a short timespan between filing the motion and
being terminated. See id.at 67 (Am. Compl. at
23, 26, 32) (Page ID #14243). Whether these
facts, along with Brights bare allegation that [the
Corporation] singled out [Bright] in retaliation for
exercising his freedom of speech, is enough to raise a
plausible inference of motive is a close call. Id. at 9
(Am. Compl. at 42) (Page ID #145). The district
court found that Brights complaint provided one
very compelling rationale for the Corporations
termination of Brights employment: because he
could not practice before Judge Evans. R. 52 at 12
(D. Ct. Order Granting Corp. Mot. to Dismiss) (Page
ID #530) (quoting R. 18 at 7 (Am. Compl. at 32)
(Page ID #143)).2 But the close temporal proximity
and the Corporations knowledge of Brights motion
present
another
plausible
reason
for
the
Corporations termination of Brights employment,
namely retaliation. On the information presently
before the court, the Corporations proffered rationale
2The
district court read this statement as an admission by

Bright that he was fired because he could not fulfill his duties, a
nonretaliatory reason. There is another possible inference,
however, i.e., that the Corporations proffered reason was mere
pretext. At the motion-to-dismiss stage, we must read Brights
Amended Complaint to state the latter.
27a
does appear stronger, but the district court should
not have been judging the relative strength of the
competing inferences. If we accept Brights
allegations as true and draw all inferences in his
favor, we conclude that the Amended Complaint
states enough facts to require the Corporation to
present evidence at summary judgment to rebut the
retaliatory inference. Thus, the district court erred in
dismissing Brights First Amendment retaliation
claim against the Corporation for failing to state a
causal connection.
b. Protected Interest
Carrying the burden of persuasion on the causal
connection prong, by itself, is not enough to overcome
a motion to dismiss. The plaintiff must also show
that the activity in which he engaged is protected by
the First Amendment. Problematically, the district
court never addressed whether Brights speech was
protected. If we were writing on a clean slate, we
would be inclined to hold that Bright has also carried
this burden, but Mezibov v. Allen, 411 F.3d 712 (6th
Cir. 2005), a prior panels published decision, compels
us to affirm the dismissal of Brights claim.
In Mezibov, the panel faced the question of
[w]hether an attorney can claim First Amendment
protection on his own behalf for his filing motions
and making courtroom statements on behalf of his
client, id.at 717, and concluded that an attorney
could not, id.at 72021. The attorney in that case
filed three motions seeking to dismiss the
indictment and disqualify [the prosecutor] on the
basis that he had engaged in improper conduct. Id.
at 715. Here, Bright filed a motion with Judge Evans
28a
criticizing the judges handling of proceedings before
the court. In both cases, the lawyers arguments and
motions contained core political speech, given that
they involved criticism of government officials. In
both cases, the lawyers speech came from inside the
courtroom and in service of a client. We see no valid
distinction in fact or law between Mezibov and this
case. Mezibov is binding precedent in this circuit and
can be overturned only by a decision of the en banc
court or the United States Supreme Court. Darrah v.
City of Oak Park, 255 F.3d 301, 30910 (6th Cir.
2001). Therefore, with great reluctance, we hold that,
at this time, Mezibov prevents us from recognizing
Brights filing of his motion or its contents as
protected conduct. As a result, Brights complaint is
deficient, and the district courts dismissal of his
claim is AFFIRMED.
***
Before turning to Brights other claims, a few
words on Mezibov and the law-of-the circuit doctrine
are appropriate. The panels opinion in Mezibov
deployed overly broad, general language and drew
several controversial conclusions. For instance, the
majority opined that [t]he courtroom is a nonpublic
forum where the First Amendment rights of everyone
(attorneys included) are at their constitutional
nadir, 411 F.3d at 718, and that an attorneys job in
the courtroom, although it necessarily includes
speech, is fundamentally inconsistent with the basic
concept of free speech, id. at 719. These statements
and others drew an emphatic dissent, see id. at 723
26 (Moore, J., dissenting), and judges in subsequent
cases have not been shy in expressing their
29a
displeasure with the decision, see, e.g., Lewter v.
Kannensohn, 159 F. Appx 641, 648 (6th Cir. 2005)
(Keith, J., dissenting) (stating that Mezibovs
protected-interest holding was an unwarranted
extension of prior law). Nevertheless, the majoritys
view carried the day and remains binding upon
subsequent panels, under the law-of-the-circuit
doctrine, until overturned by this court en banc or by
the United States Supreme Court. Darrah, 255 F.3d
at 30910.
Whether we agree with the merits of these past
decisions or not, it is essential that we hold true to
this simple rule. For generations, the precedential
system has been the best method of ensuring
consistent application of the law even as this court
predominantly renders decisions in three-judge
panels. If a panel can discard prior decisions with
which it disagrees, this system unravels; each panel
becomes a court unto itself; and the parties will have
no way of predicting the state of the law, their rights,
or their obligations. There are times when the law-ofthe-circuit doctrine does not apply, such as when the
related law-of-the-case doctrine is relevant, but we
would be foolish to diminish the doctrine or give
panels the ability to override decisions of another
panel with which they disagree.
2. Equal Protection Claim
As for Brights Equal Protection claim, he pleads
himself out of court by citing the Corporations
proffered
explanation
for
terminating
his
employment. The Supreme Court has recognized that
the Equal Protection Clause protects class[es] of
one from irrational government action. Village of
30a
Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
Under ordinary rational-basis review, however, there
is no motive inquiry; a plaintiff has the burden . . .
to negative any reasonably conceivable state of facts
that could provide a rational basis for the
classification. Board of Trustees of Univ. of Ala. v.
Garrett, 531 U.S. 356, 367 (2001) (quoting FCC v.
Beach Commcns, Inc., 508 U.S. 307, 313 (1993)).
Here, Bright has not carried that burden because his
suggestion that the Corporation fired him due to his
inability to appear before Judge Evans and, thus, to
meet the jobs requirements, is a rational reason for
the Corporation to terminate his employment.
Whether that reason was the actual motivation
behind the Corporations action is not relevant to
traditional rational-basis review. See Heller v. Doe,
509 U.S. 312, 31920 (1993) (noting that a legislature
can offer post hoc justifications for its actions). By
offering a rational justification for the Corporations
actions in his Amended Complaint, Bright has
defeated his own Equal Protection claim. Therefore,
we AFFIRM the district courts dismissal of this
claim.
3. Procedural-Due-Process Claim
Bright next argues that the Corporation violated
his procedural-due-process rights under the
Fourteenth Amendment. To survive a motion to
dismiss this claim, Bright must allege facts showing
(1) that he was deprived of a constitutionally
recognized liberty or property interest; and (2) that
he did not receive the required process. Leary v.
Daeschner, 228 F.3d 729, 74142 (6th Cir. 2000)
(citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
31a
532, 538, 541 (1985)). In his Amended Complaint,
Bright alleged that the Corporation deprived him of
three constitutionally recognized interests without
any process: (1) a property interest in his continued
employment as a public defender; (2) a property
interest in his right to practice law before the Court
of Common Pleas; and (3) a liberty interest in his
good reputation. See R. 18 at 89 (Am. Compl. at
39, 4347) (Page ID #14445); see also Bright
Appellant Br. at 15. The district court found that
none of these interests were entitled to protection.
We agree and, therefore, AFFIRM the district courts
decision.
a. Property Interests
Property interests . . . are not created by the
Constitution. Rather, they are created and their
dimensions are defined by existing rules or
understandings that stem from an independent
source such as state lawrules or understandings
that secure certain benefits and that support claims
of entitlement to those benefits. Board of Regents of
State Colls. v. Roth, 408 U.S. 564, 577 (1972).
Bright first claimed that he has a property
interest in continued employment as a public
defender and cites Ohio Revised Code 120.14 as the
relevant source of law.3See Bright Appellant Br. at
3The
district court rejected this argument on the grounds that

Bright failed to plead that he had been prejudiced by a lack of
process. See R. 52 at 14 (D. Ct. Order Granting Corp. Mot. to
Dismiss) (Page ID #532) (citing Graham v. Mukasey, 519 F.3d
546, 54950 (6th Cir. 2008); Garza-Moreno v. Gonzales, 489
F.3d 239, 241 42 (6th Cir. 2007)). Both of these cases involved
32a
15. Bright is mistaken. Section 120.14(A)(1) states
that Except as provided in division (A)(2) of this
section, the county public defender commission shall
appoint the county public defender and may remove
him from office only for good cause. Subsection
(A)(2) provides that [i]f a county public defender
commission contracts with . . . [a] nonprofit
organization[] . . . to provide all of the services that
the county public defender is required or permitted to
provide by this chapter, . . . the commission shall not
appoint a county public defender. Because the
Commission chose to contract with the Corporation,
see R. 18-1 at 14 (Commn/Corp. Contract) (Page ID
#149152), 120.14(A)(1) is not relevant. See also R.
18-1 at 2 (Commn/Corp. Contract) (Page ID #150)
([The Corporation] will utilize the service of
attorneys as independent contractors.). Section
120.14(F)(3) does state that any nonprofit
organization that contracts with a county public
defender commission . . . shall . . . [c]omply with all
statutory duties and other laws applicable to county
public defenders. But that directive suggests only
that nonprofit organizations must fulfill the duties of
the county public defender enumerated in
120.15(B), which, importantly, does not mention
standards for dismissal or contain a job-security
aliens being deported for immigration offenses, and the due

process considerations are different in that context than those
at issue in this case. Because we affirm the district court for a
different reason, we express no views on whether these cases
have any purchase here.
33a
provision. Furthermore, 120.14(A)(1) pertains to
the duties and powers of the Commission, not the
Corporation or a county public defender, and thus, it
is not applicable to a county public defender. As a
result, 120.14 does not give Bright a property
interest in his continued employment. His Amended
Complaint offers no other source of law that
establishes a property interest in his continued
employment, and therefore, we AFFIRM the district
courts decision to dismiss this claim.
Brights second property-interest-based claim was
that he has a protected property interest in his right
to practice law before the Gallia County Court of
Common Pleas. Bright Appellant Br. at 16. The
district court rejected this claim, finding that the
Corporation could not deprive him of this right
because only the Ohio Supreme Court has the power
to restrict an attorneys ability to practice law. See R.
52 at 1314 (D. Ct. Order Granting Corp. Mot. to
Dismiss) (Page ID #53132). Whether the
Corporation had the legal power to prevent Bright
from practicing law is not the issue, however; the
important questions are (1) whether Bright had a
right to practice before the Court of Common Pleas in
the first place, and (2) whether the Corporation
actually prevented Bright from practicing in that
court. Assuming that the answer to the first question
is yes, the answer to the second one, at least
according to Brights Amended Complaint, is no.
Bright alleged that the Corporation terminated his
employment as a public defender. R. 18 at 8 (Am.
Compl. at 39) (Page ID #144). But nowhere in the
Amended Complaint does Bright plead facts
suggesting that the Corporation took any other
34a
action to prevent Bright from working as an attorney
before Judge Evans or another visiting judge in the
Gallia County Court of Common Pleas. Absent such a
statement, Bright has not adequately pleaded facts
showing that the Corporation deprived him of a
property interest, even assuming he has one in being
an attorney appearing before the Court of Common
Pleas in Gallia County. Thus, we AFFIRM the
district courts dismissal of this second propertyinterest-based claim.
b. Liberty Interest
Bright also alleged that he has a liberty interest
in his reputation, which the Corporation purportedly
damaged without affording him an opportunity to
clear his name. The district court never specifically
addressed this claim when dismissing Brights claims
against the Corporation in total. See R. 52 at 1314
ID #53132) (dismissing Brights procedural-dueprocess claims without addressing his liberty-interest
argument). This oversight might be because Bright
never alleged that the Corporation made any
statement, let alone a public, defamatory one,
regarding Bright and his termination. Absent such
an allegation, Bright has failed to state a valid claim.
See Quinn v. Shirey, 293 F.3d 315, 320 (6th Cir.
2002) (citing Brown v. City of Niota, 214 F.3d 72223
(6th Cir. 2000)). Thus, we AFFIRM the dismissal of
this claim.
4. Substantive-Due-Process Claim
Bright asserted two substantive-due-process
claims: that the Corporation infringed upon his
fundamental rights to the freedom of speech and to
35a
the practice of law. The district court succinctly
stated that [the] Corporation did not violate either
right and, thus, dismissed these claims. R. 52 at 15
ID #533). For the following reasons, we AFFIRM
these dismissals.
First, from his briefing, it appears that Bright is
arguing that the Corporations termination of Bright,
or its acquiescence in Judge Evanss actions,
represents a violation of Brights fundamental right
to criticize the government. It is rather difficult to
discern how these arguments differ from his
retaliation claim discussed above and his vicariousliability claim addressed below. The cases that Bright
cites in his briefing do not support a third,
unaddressed claim, and to the extent that Bright
argues that his position as an attorney affords him
greater First Amendment rights, Mezibov holds the
opposite. See 411 F.3d at 719 ([I]n finding no First
Amendment rights on the part of the attorney
participating in a judicial proceeding, we are simply
re-affirming the commonsense principle that
attorneys do not possess any right in the first
amendment that is not the common legacy of every
citizen. (quoting Ukrainian-American Bar Assn v.
Baker, 893 F.2d 1374, 1381 (D.C. Cir. 1990))). Thus,
we see no reason to hold that the district court erred
in dismissing this part of Brights substantive-dueprocess claim.
Brights second substantive-due-process argument
gets further, but the district court did not err in
rejecting it either. Bright claims that the Corporation
violated his substantive due process right to pursue
36a
his career as a public defender.Bright Appellant Br.
at 20. In part, he is correct: This Court has long held
that the freedom to choose and pursue a career, to
engage in any of the common occupations of life,
qualifies as a liberty interest which may not be
arbitrarily denied by the State. Parate v. Isibor, 868
F.2d 821, 831 (6th Cir. 1989) (internal quotation
marks omitted). More specifically, the Supreme
Court has stated that [a] State cannot exclude a
person from the practice of law or from any other
occupation in a manner or for reasons that
contravene the Due Process or Equal Protection
Clause[s] of the Fourteenth Amendment. Schware v.
Board of Bar Exam. of N. Mex., 353 U.S. 232, 23839
(1957) (citing Dent v. West Virginia, 129 U.S. 114
(1889)). However, these two holdings do not mean
that Bright has a substantive-due-process right to
practice law as a Gallia County Public Defender. The
Corporations decision to terminate Bright does not
prevent him from practicing law in Gallia County or
working as a defense attorney; it merely prevents
him from doing so as an independent contractor for
the Corporation. Now, other legal provisions might
render his termination a violation of the law, but the
substantive aspect of the Due Process Clause is not
one of them. Thus, we AFFIRM the dismissal of this
claim.
5. Collusion with Judge Evans
Brights final 1983 claim is that the Corporation
directly participated in Judge Evanss alleged
violation of Brights federal rights. The district court
rejected this claim, finding that the Corporation had
no supervisory relationship over Judge Evans. R. 52
37a
at 16 (D. Ct. Order Granting Corp. Mot.to Dismiss)
(Page ID #534). In doing so, the district court
overstated the caselaw, given that a supervisory
relationship is not always required to state a valid
claim. See Flagg v. City of Detroit, 715 F.3d 165, 174
(6th Cir. 2013) ([F]or constitutional violations under
1983, a plaintiff must demonstrate that the actor
directly participated in the alleged misconduct, at
least by encouraging, implicitly authorizing,
approving or knowingly acquiescing in the
misconduct, if not carrying it out himself.).
Regardless, the bigger problem for Bright is that,
under Mezibov, his motion and arguments to Judge
Evans are not protected conduct. Thus, there was no
violation of federal rights for the Corporation to
authorize, encourage, or approve. As a result, Bright
cannot state a valid claim, and we AFFIRM the
district courts dismissal of this claim.
C. Breach-of-Contract Claim
Bright also asks us to order the district court to
exercise supplemental jurisdiction over Brights
state-law breach-of-contract claim. In the original
proceedings, after dismissing all federal claims
against the Corporation, the district court declined to
exercise jurisdiction over Brights state-law claims
because they presented a question of first
impression under Ohio Law. . . . R. 52 at 16 (D. Ct.
Order Granting Corp. Mot. to Dismiss) (Page ID
#534) (citing 28 U.S.C. 1367(c)). We review a
district courts refusal to exercise supplemental
jurisdiction for abuse of discretion. Habich v. City of
Dearborn, 331 F.3d 524, 535 (6th Cir. 2003) (citing
Hankins v. The Gap, Inc., 84 F.3d 797, 802 (6th Cir.
38a
1996)). In his briefing, Bright offers no argument as
to why the district courts refusal constitutes an
abuse of discretion, and thus, we AFFIRM the
dismissal without prejudice of Brights state-law
claims against the Corporation.
V. CLAIMS AGAINST THE BOARD AND THE
COMMISSION
In the Amended Complaint, Bright also alleged
that the Board and the Commission, under color of
law, deprived [him] of clearly established rights,
privileges, and immunities secured by the First and
Fourteenth Amendment[s] to the United States
Constitution . . . . R. 18 at 9 (Am. Compl. at 47)
(Page ID #145). Specifically, Bright claimed that the
Board and the Commission accomplished this
deprivation by knowingly failing to protect . . .
Bright from the clearly illegal actions by . . . [the
Corporation] and Judge Evans . . . . Id. at 8 (Am.
Compl. at 40) (Page ID #144). The Board and the
Commission, according to Bright, should have
challenge[d] the actions of Judge Evans terminating
[Bright] as a public defender and should have
support[ed] . . . Bright by, for example, requesting
visiting judges or assigning Bright to misdemeanor
cases where he would not be arguing in front of
Judge Evans. Id. at 7 (Am. Compl. at 31) (Page ID
#143). Bright alleged that, by not doing so, the Board
and the Commission were irrational and wholly
arbitrary and singled out [Bright] in retaliation for
exercising his freedom of speech. Id. at 9 (Am.
Compl. at 41, 42) (Page ID #145).
39a
The district court rejected these arguments,
finding that Bright had failed to plead sufficient facts
to state a claim for relief based on the Boards or the
Commissions direct actions against Bright. R. 53 at 4
(D. Ct. Order Granting Bd. &Commn Mot. to
Dismiss) (Page ID #539). Additionally, the district
court found that Bright failed to state a sufficient
claim that the Board or Commission were liable
under a Monell theory based on the actions of the
Corporation or Judge Evans. For the reasons below,
we AFFIRM the district courts dismissal.
A. Direct Infringement
In the Amended Complaint, Brights allegations
that the Board and the Commission directly violated
his federal rights were exceptionally thin. The
district court dismissed them without much
discussion because Bright did not aver sufficient
facts that would support a finding that the Board or
Commission took any direct action against Bright.
On appeal, Bright appears to have abandoned this
claim, having offered no argument in support of his
original allegations. Thus, it is forfeited. Patel v.
Gonzales, 470 F.3d 216, 219 (6th Cir. 2006).
B. Monell Liability
In his briefing, Bright focuses on the district
courts decision to dismiss his 1983 claims
attributing liability to the Board and the Commission
for the actions of the Corporation and Judge Evans.
In particular, the district court concluded that Bright
failed to allege sufficient facts showing that the
Corporation violated Brights rights, as discussed
above, or that either the Board or the Commission
had a policy or custom that Judge Evans followed,
40a
which caused Brights injuries. R. 53 at 6 (D. Ct.
Order Granting Bd. &Commn Mot. to Dismiss) (Page
ID #541). Based on the analysis above and Brights
Amended Complaint, we AFFIRM the dismissal of
Brights claims against the Board and the
Commission.
To establish municipal liability pursuant
to 1983, a plaintiff must allege an
unconstitutional action that implements or
executes a policy statement, ordinance,
regulation, or decision officially adopted
and promulgated by that bodys officers or
a constitutional deprivation[] visited
pursuant to governmental custom even
though such a custom has not received
formal approval through the bodys official
decisionmaking channels. Shamaeizadeh
v. Cunigan, 338 F.3d 535, 556 (6th Cir.
2003) (quoting Monell, 436 U.S. at 69091))
(alteration in original). [A] municipality
cannot be held liable solely because it
employs a tortfeasoror, in other words, a
municipality cannot be held liable under
1983 on a respondeat superior theory.
Monell, 436 U.S. at 691. Accordingly, to survive a
motion to dismiss under Rule 12(b)(6), a plaintiff
must adequately plead (1) that a violation of a
federal right took place, (2) that the defendants acted
under color of state law, and (3) that a municipalitys
policy or custom caused that violation to happen.
Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir.
2008).
41a
In this case, Bright pleaded that the Board and
the Commission had a policy or custom of deferring
to Judge Evanss decisions regarding the
appointment of public defenders, and thus, because
Judge Evans removed Bright from all cases pending
before his court, the Corporation the municipalitys
alleged
policymakerterminated
Brights
employment. See R. 18 at 8 (Am. Compl. at 39)
(Page ID #144). The problem is that Bright failed to
plead sufficient facts that would support a finding
that the Corporation violated federal law. Thus, it
does not matter whether that action was taken
pursuant to a policy or custom adopted by the Board
or the Commission. Accordingly, we AFFIRM the
dismissal of Brights claims against the Board and
the Commission.
VI. CONCLUSION
For the reasons stated above, in case number 133451, we REVERSE the district courts decision
denying Judge Evans absolute judicial immunity and
REMAND with instructions to dismiss the case
against Judge Evans. In case number 13-3907, we
AFFIRM the dismissal with prejudice of Brights
federal claims against the Board, the Commission,
and the Corporation, and we AFFIRM the dismissal
without prejudice of Brights state-law claims against
the Corporation.
42a
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
[Filed: July 29, 2013]
Robert W. Bright,
cv-800
Case No. 2:12-
Plaintiff,
Judge Graham
v.
Magistrate Judge Deavers
Gallia County, Ohio and the

Board of Commissioners of
Gallia County, Ohio, et al.
Defendants.
OPINION AND ORDER
This matter is before the court on a motion for
entry of judgment pursuant to Federal Rule of Civil
Procedure 54(b). Pursuant to that rule, when an
action presents more than one claim for relief or
when multiple parties are involved, the court may
direct entry of a final judgment as to one or more, but
fewer than all, claims or parties only if the court
expressly determines that there is no just reason for
delay. For the reasons stated below, the motion is
granted.
43a
This action presents claims against four
defendants: Gallia County, Ohio and the Board of
Commissioners of Gallia County, the Gallia County
Public Defender Commission, Judge David Dean
Evans, and the Gallia County Criminal Defense
Corp. In a pair of orders, the Court dismissed three of
the four defendants, only Judge Evans remains. See
docs. 43, 44. The denial of Judge Evanss motion to
dismiss is currently under interlocutory appeal.
Though plaintiffs claims against all parties arise
generally from a dispute with Judge Evans and his
subsequent termination from his job, his claims
against Judge Evans are quite different from and
rely on different facts and legal theories than his
claims against the other defendants. Plaintiff claims
that by removing him from more than representing
more than 70 felony defendants before the Gallia
County Court of Common Pleas, Judge Evans
violated his rights under the First and Fourteenth
Amendments, interfered with his contract and
business relationships with other defendants, and by
publicizing facts of his removal invaded his privacy.
Plaintiff claims that the other defendants retaliated
against him for exercising his First Amendment
rights, violated his right to equal protection by
terminating him for speaking out against Judge
Evans, and violated his due process and contractual
rights by terminating him. In short, plaintiff seeks to
hold Judge Evans liable for actions he took in
removing him from his criminal representations, but
he seeks to hold the other defendants liable for how
they responded to or failed to protect him from Judge
Evanss actions.
44a
There is no just reason to delay appellate review
of the Courts dismissal of the Board of
Commissioners, the Public Defender Commission, or
the Criminal Defense Corporation. There is little
chance that appellate review of these dismissals
could be mooted by subsequent developments, nor
that the appeals court could be called upon to rule on
the same issues twice. See Corrosioneering Inc. v.
Thyssen Envtl. Sys. Inc., 807 F.2d 1279, 1283 (6th
Cir. 1986).
For the foregoing reasons, the clerk is
ORDERED to enter final judgment as to defendants
Gallia County, Ohio and the Board of Commissioners
of Gallia County, the Gallia County Public Defender
Commission, and the Gallia County Criminal
Defense Corp.
IT IS SO ORDERED.
S/ James L Graham
James L. Graham
UNITED STATES DISTRICT JUDGE
45a
APPENDIX D
EASTERN DIVISION
[Filed: June 3, 2013]
Robert W. Bright,
cv-800
Case No. 2:12-
Plaintiff,
Judge Graham
v.
Magistrate Judge Deavers

Defendants.
OPINION AND ORDER
This matter is before the Court on Motions to
dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) filed by defendants Gallia County, Ohio and
the Board of Commissioners of Gallia County, Ohio
(doc. 20) and the Gallia County Public Defender
Commission (doc. 28).
I. Factual Background
Plaintiff Robert Bright's complaint arises from the
termination of his employment by the Gallia County
46a
Criminal Defense Corporation. Plaintiff was
terminated from his position as a public defender
after defendant Judge David Dean Evans issued
orders removing him from all felony criminal cases to
which he was assigned. Two prior orders provide a
detailed overview of the facts of this case. See docs.
43, 52. The following is a brief summary of the
plaintiff's claims against the moving defendants, the
Gallia County Board of Commissioners (the Board)
and the Gallia County Public Defender Commission
(the Commission). Plaintiff brings one of his five
causes of action against the moving defendants.
Plaintiff alleges that the Board, the Commission, and
the other defendants under color of law, deprived
Plaintiff of clearly established rights, privileges, and
immunities secured by the First and Fourteenth
Amendment to the United States Constitution
including but not limited to the right to free speech,
free association, substantive due process, procedural
due process and equal protection under the law. Doc.
18 47.
To support his claim under 1983, plaintiff
alleges that the Board is legally required to provide
public defender services, and that it does so through
the Commission and the Gallia County Criminal
Defense Corporation. Doc. 18 4. Plaintiff alleges
that the Commission is a policymaker for the County
with respect to provision of public defender services
and that defendant Judge Evans appoints two of the
five members of the Commission. Doc. 18 5, 13.
Plaintiff's complaint makes very few allegations
regarding actions that the Board or the Commission
took to deprive him of a federal right. For the most
47a
part, he claims only that the Board and the
Commission failed to protect him from the allegedly
wrongful actions of other defendants. For example,
plaintiff alleges that [a]t no time did the [Board or
the Commission] formally challenge the actions of
Judge Evans terminating Plaintiff as a public
defender.... Doc. 18 31. Similarly, the Board and
the
Commission
acquiesced
in
plaintiff's
termination despite their duty to provide public
defender services in accordance with the state public
defender standards. Doc. 18 39. Plaintiff also
alleges that the Board and Commission had a policy
of knowingly failing to protect Mr. Bright from the
clearly illegal actions by Defendants [Criminal
Defense Corporation] and Judge Evans.... Doc. 18
40.
Finally, plaintiff includes two general allegations
against all defendants, that in taking away Mr.
Bright's livelihood [they] were irrational and wholly
arbitrary, and that they singled out the Plaintiff in
retaliation for exercising his freedom of speech....
Doc. 18 41, 42.
II. Standard of Review
Federal Rule of Civil Procedure 8(a) requires that
a pleading contain a short and plain statement of
the claim showing that the pleader is entitled to
relief. Fed.R.Civ.P. 8(a)(2). When considering a
motion under Rule 12(b)(6) to dismiss a pleading for
failure to state a claim, a court must determine
whether the complaint contain[s] sufficient factual
matter, accepted as true, to state a claim to relief
that is plausible on its face.Ashcroft v. Iqbal, 556
U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)
48a
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A
court should construe the complaint in the light most
favorable to the plaintiff and accept all well-pleaded
material allegations in the complaint as true. Iqbal,
556 U.S. at 679; Erickson v. Pardus, 551 U.S. 89, 93
94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007);
Twombly, 550 U.S. at 55556.
Despite this liberal pleading standard, the tenet
that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a
cause of action, supported by mere conclusory
statements, do not suffice. Iqbal, 556 U.S. at
678; see also Twombly, 550 U.S. at 555, 557 (labels
and conclusions or a formulaic recitation of the
elements of a cause of action will not do, nor will
naked assertion[s] devoid of further factual
enhancements); Papasan v. Allain, 478 U.S. 265,
286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (a court is
not bound to accept as true a legal conclusion
couched as a factual allegation). The plaintiff must
provide the grounds of his entitlement to relief
rather than a blanket assertion of entitlement to
relief. Twombly, 550 U.S. at 556 n. 3. Thus, a court
considering a motion to dismiss can choose to begin
by identifying pleadings that, because they are no
more than conclusions, are not entitled to the
assumption of truth. Iqbal, 556 U.S. at 679.
When the complaint does contain well-pleaded
factual allegations, a court should assume their
veracity and then determine whether they plausibly
give rise to an entitlement to relief. Iqbal, 556 U.S.
49a
at 679. A claim has facial plausibility when the
plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant
is liable for the misconduct alleged. Id. at 678.
Though
[s]pecific
facts
are
not
necessary, Erickson, 551
U.S.
at
93, and
though Rule 8 does not impose a probability
requirement at the pleading stage, Twombly, 550
U.S. at 556, the factual allegations must be enough to
raise the claimed right to relief above the speculative
level and to create a reasonable expectation that
discovery will reveal evidence to support the
claim. Iqbal, 556 U.S. at 67879; Twombly, 550 U.S.
at 55556. This inquiry as to plausibility is a
context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.... [W]here the well-pleaded facts do not permit
the court to infer more than the mere possibility of
misconduct, the complaint has allegedbut it has
not show[n]'-that the pleader is entitled to relief.
Iqbal, 556 U .S. at 679 (quoting Fed.R.Civ.P.
8(a)(2)).
III. Analysis
a) Defendants' alleged violations of 42 U.S.C.
1983 by their own actions
To state a cognizable claim against an individual
under 1983, a plaintiff must set forth facts that,
when construed favorably, establish (1) the
deprivation of a right secured by the Constitution or
laws of the United States (2) caused by a person
acting under color of state law. Heyerman v. County
of Calhoun, 680 F.3d 642, 647 (6th Cir.
2012) (quoting Sigley v. City of Parma Heights, 437
50a
F.3d 527, 533 (6th Cir. 2006)). Plaintiff has only
alleged that the Board and Commission took a small
number of actions that could have directly denied
him some federal right. He alleges that they acted
arbitrarily and retaliated against him for his speech.
Doc. 18 41, 42. These bare bones allegations are
insufficient to state a claim under Section 1983. The
allegation that defendants generally acted arbitrarily
is a legal conclusion devoid of factual support. Nor is
it plausible that the Board or the Commission
retaliated against him. Neither the Board nor the
Commission terminated plaintiff from his position,
nor does plaintiff make any allegations on which to
rest a claim that they declined to help him in
retaliation for his speech. Plaintiff has not stated a
claim that the Board or the Commission
violated 1983 by their own actions.
b) Monell liability
Plaintiff's other theory under 1983 is that the
Board and the Commission may be liable because
they declined to intervene on plaintiff's behalf and
protect him from the Criminal Defense Corporation
or Judge Evans. Generally, there is no vicarious
liability under 1983. See Shehee v. Luttrell, 199
F.3d 295, 300 (6th Cir. 1999). However, in some
instances, a local government may be liable
under 1983 for the acts of others:
A 1983 plaintiff seeking to hold a
municipality liable must therefore allege
that the particular injury complained of
flowed from the execution of the
municipality's policy or custom. Garner v.
Memphis Police Dep't, 8 F.3d 358, 361,
51a
36364 (6th Cir. 1993). But policy or
custom does not have to be written law; it
can be created by those whose edicts or
acts may fairly be said to represent official
policy. Monell[ v. Dep't of Soc. Servs., 436
U.S. [658,] 694, 98 S.Ct. 2018, 56 L.Ed.2d
611 [ (1978) ]; see also Pembaur v. City of
Cincinnati, 475 U.S. 469, 483, 106 S.Ct.
1292, 89 L.Ed.2d 452 (1986) ([M]unicipal
liability under 1983 attaches where-and
only where-a deliberate choice to follow a
course of action is made from among
various alternatives by the official or
officials responsible for establishing final
policy with respect to the subject matter in
question.).
Plaintiff seeks to hold the Board and the
Commission liable for the actions of defendants
Judge Evans and the Criminal Defense Corporation.
See doc. 23 at 89, doc. 33 at 89.
As an initial matter, plaintiff cannot base
a Monell claim on the actions of the Criminal Defense
Corporation allegedly acting in accord with a policy of
the Board or the Commission. In a prior order, the
Court held that the Criminal Defense Corporation
did not deprive plaintiff of any federal rights. See
doc. 52. Without an underlying deprivation of federal
rights, there can be no claim for municipal liability
for such a deprivation.
This leaves only plaintiff's claim that the alleged
deprivation of his federal rights by defendant Judge
Evans flowed from the execution of the
municipality's policy or custom. Garner, 8 F.3d at
52a
361. But plaintiff has not made any allegations from
which to conclude that Judge Evans's actions
flowed from the policy of the Board or the
Commission. At best, plaintiff has alleged that the
Board and the Commission had a policy of deferring
to Judge Evans. Though deference and acquiescence
may be evidence of a policy or custom,
see Monell, 436 U.S. at 69091, a policy of deference
does not alone cause a deprivations of federal rights.
In order to state a claim that the Board or the
Commission are liable under Monell, plaintiff would
have needed to plead that the Board or the
Commission had a policy or custom that, when
followed, caused the deprivation of a federal right
belonging to the plaintiff. Further, plaintiff would
have needed to plead that Judge Evans's actions
flowed from that policy. Plaintiff has plead neither,
nor do his allegations make it plausible that either
the Board or Commission had the type of influence or
control over the judge that would allow his actions to
flow from Board or Commission policy.
V. Conclusion
Based on the foregoing reasons, motions to
dismiss filed by the Gallia County Board of
Commissioners and the Gallia County Public
Defender
Commission
(docs.
20,
28)
are GRANTED. The motion to stay discovery filed by
the Commission and the Board (doc. 42) is
DENIED as moot.
IT IS SO ORDERED.
S/ James L Graham
53a
James L. Graham
54a
APPENDIX E
EASTERN DIVISION
[Filed: June 3, 2013]
Robert W. Bright,
cv-800
Case No. 2:12-
Plaintiff,
Judge Graham
v.
Defendants.
OPINION AND ORDER
JAMES L. GRAHAM, District Judge. This matter
is before the Court following an order in which the
Court denied defendant Gallia County Criminal
Defense Corporation's motion to dismiss, but
expressed uncertainty that plaintiff had stated a
claim against the Criminal Defense Corporation on
which relief may be granted. Doc. 44. The Court
ordered additional briefing on the issue of whether
plaintiff's complaint includes allegations that would
make it plausible that the Criminal Defense
Corporation has deprived him of a federal right. Doc.
55a
44 at 6. Having given the parties notice of and the
opportunity to respond to a potential deficiency in
plaintiff's complaint against the Criminal Defense
Corporation, the Court dismisses plaintiff's complaint
against the Corporation for failing to state a claim on
which relief may be granted.
I. Factual Background
The recitation of facts below largely replicates the
overview of the facts presented in a prior
order. See doc. 43 at 18. This action arises from
plaintiff Robert Bright's termination from his
position as a public defender in Gallia County, Ohio.
Doc. 18 1. Plaintiff was terminated from his
employment with defendant Gallia County Criminal
Defense Corporation (the Criminal Defense
Corporation) after Judge David Dean Evans, sole
Judge of the Court of Common Pleas of Gallia
County, Ohio, removed him from each of more than
seventy felony cases in which Bright represented
indigent criminal defendants. Doc. 18 1, 26, 27.
Plaintiff's first amended complaint brings five causes
of action against Judge Evans, the Corporation, the
Gallia County Public Defender Commission (the
Public Defender Commission), and the Gallia
County Board of Commissioners (the Board of
Commissioners). Plaintiff's first cause of action
under 42 U.S.C. 1983 alleges that each defendant,
under color of state law, violated plaintiff's First
Amendment rights and his procedural due process,
substantive due process, and equal protection rights
under the Fourteenth Amendment. Doc. 18 47.
Plaintiff's second and third causes of action allege
that Judge Evans tortiously interfered with
56a
plaintiff's contractual and business relationships
with the Criminal Defense Corporation. Doc. 18
4851. Plaintiff's fourth cause of action alleges
that the Criminal Defense Corporation breached his
employment contract. Doc. 18 52. Plaintiff's fifth
cause of action alleges that Judge Evans invaded his
privacy by publishing private facts. Doc. 18 53.
Plaintiff's troubles began during the course of his
criminal defense representation of Ricky L. Gleason
before Judge Evans in the Gallia County Court of
Common Pleas. At the time, plaintiff was employed
as a public defender by the Criminal Defense
Corporation. Doc. 18 10. The Criminal Defense
Corporation is a nonprofit corporation with which the
defendants Board of Commissioners and Public
Defender Commission have contracted to employ
attorneys to provide legal services to indigent
criminal defendants in Gallia County.Doc. 18 7,
10. According to plaintiff, the contract between the
Board of Commissioners, the Public Defender
Commission, and the Criminal Defense Corporation,
and Ohio law require that individual public
defenders be assigned to cases independent of any
involvement by the court, yet Judge Evans frequently
makes decisions regarding the assignment of counsel
in specific criminal defense cases. Doc. 18
13; see Ohio Admin. Code 120110.
In the course of plaintiff's representation of Mr.
Gleason, plaintiff negotiated a plea with the
prosecutor and a plea hearing was scheduled. Doc.
18 19. At the scheduled plea hearing on July 25,
2011, Mr. Gleason had second thoughts about the
negotiated plea. Doc. 18 20. Mr. Gleason was
57a
hesitant to accept the plea because he had not
realized until the morning of the plea hearing that he
would go directly from the plea hearing to prisonhe
would not be able to go home first to collect personal
items and see family members before spending years
in prison. Doc. 182 at 2. Plaintiff advised Mr.
Gleason to go ahead with the plea anyway, but Mr.
Gleason declined. Doc. 18 20. Plaintiff informed
Judge Evans that his client did not wish to proceed
with the plea and Judge Evans set the case for trial.
Doc. 18 21. Less than a minute afterwards, Mr.
G[leason] again reconsidered and expressed his
desire to proceed with the plea. Mr. Bright informed
the Judge, but Judge Evans would not allow the
change of plea, Doc. 18 21, and said No, we're not
going to play games. Doc. 182 at 3. Two days later,
on July 27, 2011, Judge Evans moved the trial date
from September 12, 2011 to August 15, 2011. On July
28, plaintiff met with Judge Evans and the
Prosecuting Attorney (who continued to approve of
the plea deal) in Judge Evans's chambers to try to
convince him to accept the plea, but Judge Evans
refused. Doc. 18 22.
On August 3, 2011, plaintiff submitted a formal
motion for the court to accept Mr. Gleason's plea
agreement. In that motion, plaintiff described the
plea hearing, including his client's reason for
deciding not to proceed with his plea agreement and
then deciding again to go through with it. Doc. 182
at 2. The motion described the judge's reaction:
The Court's curt statement alleging that
games were being played was made directly
58a
to Defense Counsel and was in response to
Counsel's mere statement that the
Defendant would like to go forward with
the plea change hearing and accept the
plea agreement which the Defendant had
already signed. Defendant's Counsel was
not in any way playing games with the
Court. Further, the Defendant was not in
any way playing games with the Court. The
Defendant was legitimately conflicted as a
result of his surprise at the fact that he
was going to be sent to prison immediately
after the hearing, and the Defendant was
not expecting that until right before the
hearing. At no point after signing the plea
agreement did the Defendant ever want to
go to trial and always desired to accept the
terms of the guilty pleahe just didn't
want to have to go to prison that day ....
The fact that the Defendant was conflicted
and having difficulty with the decision to
go to prison that very morning did briefly
inconvenience
the
Court,
and
the
Defendant has apologized for that in his
statement attached to this motion.
Doc. 182 at 3.
Plaintiff's motion then set forth a legal argument
that Judge Evans erred by declining to allow Mr.
Gleason to accept the plea:
At the very end of the hearing, the Court
stated that it would have difficulty
accepting the Defendant's plea because the
59a
Defendant had changed his mind and the
court could not know whether or not the
Defendant was voluntarily, knowingly and
intelligently entering the plea.
This argument by the Court is without
basis in law or fact, given the
uncontrovertible fact that the Court did not
ask a single question of the Defendant
during the plea change hearing. It is not
possible for the Court to know whether or
not the Defendant was voluntarily,
knowingly and intelligently entering a plea
without inquiring of the Defendant. The
Defendant's conflicted state at the hearing
was not caused by the terms of the plea
agreement, but rather, by the fact that the
Defendant was going to be going to prison
much sooner than he had expected and
would not be permitted to go home before
he was sent to prison.
Doc. 182 at 4. Mr. Gleason's motion to the Court of
Common Pleas proceeded to discuss an Ohio case
that he argued supports allowing him to proceed with
his plea. The motion also attempted to allay Judge
Evans's concern that Mr. Gleason wanted to go home
before going to prison so that he could abscond. Doc.
182 at 78.
In addition to the issue of Judge Evans's decision
not to accept Mr. Gleason's plea, the motion also
discussed Judge Evans's practice of setting drop
dead dates after which the court will not accept plea
agreements. Plaintiff criticized this policy in a section
of the motion labeled The Court's Arbitrary Blanket
60a
Policies/Practices. Doc. 182 at 8. Because this
section appears to be central to the dispute between
plaintiff and Judge Evans, it is worth quoting at
length here:
It is ironic that the Court has before it a
Defendant who is willing to accept a guilty
plea, and the Court has thus far chosen to
require the expenditure of significant
amounts
of
unnecessary
time
in
preparation for trial by the Prosecuting
Attorney, Defense Counsel, the Court's
personnel, twenty-one (21) witnesses on the
Prosecutor's witness list, and possibly other
persons-as well as calling a jury who will
all be significantly inconvenienced for two
to three days by having to sit on the jury in
this case-even though both parties wish to
submit a negotiated plea agreement to
which the victim has consented....
It appears that the Court wishes to teach
the Defendant and/or Defendant's Counsel
a lesson. Given that the Defendant is
currently being held on a bond he cannot
afford to pay and, therefore the Defendant
cannot go home before he is sent to prison
as he had wished, it is the Defendant and
Defendant's Counsel's position that the
Defendant has learned a lesson from this
situation....
The Court's position on this matter and the
matter of the drop dead date constitutes
an abuse of discretion because the Court's
61a
position and attitude is unreasonable
and/or arbitrary and/or unconscionable....
As noted above, the drop dead date in this
case is August 15, 2011two and one half
(2) weeks from the date of the conference
held in Judge's chambers on July 28, 2011.
Even though the drop dead date in this
case has not yet passed, the Court is
unwilling to accept this Defendant's plea
apparently only because the Defendant
inconvenienced the court for a few minutes
as a result of his shock and surprise at
being informed he was going to prison
immediately.
It is notable that various Courts across the
State of Ohioincluding the 4th District
Court of Appeals-as well as Federal Courts,
have held that such categorical drop dead
dates and other, similar categorical
policies by a Trial Court are an abuse of
discretion by the Trial Court.
Doc. 182 at 910. The motion proceeded to discuss
and quote a handful of cases and argued that they
demonstrate that Judge Evans should have accepted
Mr. Gleason's plea.
The motion argued that three more of Judge
Evans's policies are arbitrary and prejudice criminal
defendants. First, it argued that the Court
impermissibly
categorically
refuses Alford /no
contest pleas ... [and that] such a categorical refusal
is impermissible under various federal and Ohio
Court of Appeal cases. Doc. 182 n. 5. Second, the
62a
motion argued that Judge Evans may have adopted
inappropriate sentencing practices:
[T]he Court apparently sentences all or
virtually all Defendants convicted at trial
to a maximum sentence. If true, such a
policy would appear to be non-compliant
with the public policy of the State of Ohio
as noted in State v. Hood (2001), Not
Reported in N.E.2d, 2001 WL 1479242
(Ohio App. 4 Dist.), 2001Ohio2620, and
several other cases which can be made
available to the Court for review upon
request. Surely not every Gallia County
Defendant convicted at trial can be one of
the most deserving offenders in the State
of Ohio. But those are issues to be
considered on another day.
Doc. 182 n. 5. Third and finally, the motion opined
that
[i]n Defense Counsel's admittedly limited
experience with this Court (and further
based on Defense Counsel's knowledge
gained from other attorneys who have
practiced in this Court for a longer period
of time as well as conversations with the
Judge), this Court has a one strike and
you're out policy on community control
violations by which every person found to
have violated the terms of their community
control is sentenced to a prison term. At
their initial sentencing on the crime for
which they were indicted, every Defendant
being sentenced to community control is
63a
informed that they WILL be sentenced to
prison for a community control violation
and that if the Defendant appears in front
of the Court on a community control
violation, the Court will take that as an
indication that the Defendant wants to or
has chosen to go to prison.
As, in those cases, the Court is making
such a determination prior to any
community control violation ever being
committed, the Court appears to be
presentencing community control violations
and not considering the necessary factors
and making a determination that the
penalty for the community control violation
is commensurate with the offense
committed. The Court appears to therefore
not be in compliance with the requirements
found in [eight listed Ohio Court of Appeals
Decisions.]
The Court appears to be making arbitrary
rules in two (2) different situations which
are not permissible under the holdings of
the Appeals Court cases cited above.
Similarly, the Defendant asserts that the
Court's refusal to accept the Defendant's
plea change in this matter is arbitrary
and/or unreasonable based on a review of
the relevant case law.
Doc. 182 at 1617.
Upon receiving the motion submitted by plaintiff
on behalf of Mr. Gleason, Judge Evans took 6 a
number of actions. First, Judge Evans contacted the
64a
Office of Disciplinary Counsel of the Supreme Court
of Ohio ... and filed a grievance against Mr. Bright....
No probable cause was found for disciplinary action
against the Plaintiff and the Office of Disciplinary
counsel closed its investigation without filing any
complaint against Mr. Bright. Doc. 18 2525.
Next, [o]n August 8, 2011, Judge Evans filed a
public journal entry in which he declared that Mr.
Bright's motion, although not rising to the level of
misconduct or contempt, had created a conflict with
the Court and ordered that Mr. Bright be removed
from the case of Mr. G[leason]. Doc. 18 26. Finally,
Judge Evans took similar actions, removing the
plaintiff from other cases: Judge Evans removed Mr.
Bright from every other action pending before him
more than seventy felony cases, citing the same
conflict and effectively preventing Mr. Bright from
performing his duties as a public defender and from
practicing law in the Gallia County Common Pleas
Court, where Judge Evans was the sole judge. At no
time did Judge Evans recuse himself from Mr.
Bright's cases. Rather, he terminated the right of Mr.
Bright to appear on behalf of the criminal defendants
in all of those cases. Doc. 18 2728. In the journal
entries removing plaintiff from the representation of
more than seventy clients, Judge Evans referred to
the inquiry he had filed with the disciplinary council,
an action that plaintiff alleges violated both his right
to privacy and the Supreme Court Rules for the
Government of the Bar of Ohio. Doc. 18 29. One of
the entries reads as follows:
NOW COMES THE COURT AND
ORDERS THAT MICHAEL L. BARR BE
SUBSTITUTED FOR COUNSEL FOR
65a
THE DEFENDANT. ATTORNEY ROBERT
W. BRIGHT IS RELIEVED OF FURTHER
OBLIGATION DUE TO THE CONFLICT
HE HAS CREATED WITH THE COURT
AND AS DESCRIBED IN THE CASE OF
STATE OF OHIO VS. RICKY L GLEASON
CASE
NO.
11CR4,
TO
WHICH
REFERENCE IS HERE MADE, AND
FURTHER DUE [TO] THE COURTS'S
INQUIRY
TO
THE
OFFICE
OF
DISCIPLINARY
COUNSEL,
THE
SUPREME
COURT
OF
OHIO
REGARDING MR. BRIGHT'S CONDUCT.
FURTHER, THE COURT FINDS IT IS
NOT
FEASIBLE/PRACTICABLE
TO
REQUEST THE OHIO SUPREME COURT
TO ASSIGN A VISITING JUDGE TO
EACH OF THE APPROXIMATE FIFTY
TO SEVENTY CASES CURRENTLY
HANDLED BY MR. BRIGHT, DUE TO
FINANCIAL BURDEN TO GALLIA
COUNTY
JUDICIAL
ECONOMY,
SCHEDULING OF THE COURT, THE
CONSTITUTIONAL RIGHTS OF THE
DEFENDANT,
AND
THE
CONSTRAINTS/REQUIREMENTS OF A
SPEEDY TRIAL GUARANTEED TO THE
DEFENDANT. THE COURT FINDS THE
SIMPLEST
SOLUTION
TO
THIS
CREATED CONFLICT IS TO APPOINT
NEW
COUNSEL
FOR
THE
DEFENDANT....
66a
Journal Entry Substituting Attorney, State of Ohio v.
Adam D. Boggess, 11 CR000022 (Gallia Cty. Ct. of
Common Pl., Aug. 9, 2011).
The removal of plaintiff from each of his felony
criminal cases created other negative consequences
for the plaintiff. Plaintiff argues that each of the
other defendants should have protected him from
Judge Evans's actions and their consequences, but
they did not. Doc. 18 31. On September 7, 2011,
without a hearing or other due process, Defendant
[Criminal Defense Corporation] terminated Mr.
Bright's employment as a public Defender because he
could not practice before Judge Evans. Doc. 18 32.
Ultimately, once plaintiff was removed from the case,
Judge Evans accepted the disputed plea from
plaintiff's former client, Mr. Gleason. Doc. 18 33.
II. Standard of Review
Federal Rule of Civil Procedure 8(a) requires that
a pleading contain a short and plain statement of
the claim showing that the pleader is entitled to
relief. Fed.R.Civ.P. 8(a)(2). When considering a
motion under Rule 12(b)(6) to dismiss a pleading for
failure to state a claim, a court must determine
whether the complaint contain[s] sufficient factual
matter, accepted as true, to state a claim to relief
that is plausible on its face. Ashcroft v. Iqbal, 556
U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929
(2007)). A court should construe the complaint in the
light most favorable to the plaintiff and accept all
well-pleaded material allegations in the complaint as
true. Iqbal, 556 U.S. at 679; Erickson v. Pardus, 551
67a
U.S. 89, 9394, 127 S.Ct. 2197, 167 L.Ed.2d 1081
(2007); Twombly, 550 U.S. at 55556.
Despite this liberal pleading standard, the tenet
that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a
cause of action, supported by mere conclusory
statements, do not suffice. Iqbal, 556 U.S. at 678; see
also Twombly, 550 U.S. at 555, 557 (labels and
conclusions or a formulaic recitation of the
elements of a cause of action will not do, nor will
naked assertion[s] devoid of further factual
enhancements); Papasan v. Allain, 478 U.S. 265,
286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (a court is
not bound to accept as true a legal conclusion
couched as a factual allegation). The plaintiff must
provide the grounds of his entitlement to relief
rather than a blanket assertion of entitlement to
relief.Twombly, 550 U.S. at 556 n. 3. Thus, a court
considering a motion to dismiss can choose to begin
by identifying pleadings that, because they are no
more than conclusions, are not entitled to the
assumption of truth. Iqbal, 556 U.S. at 679.
When the complaint does contain well-pleaded
factual allegations, a court should assume their
veracity and then determine whether they plausibly
give rise to an entitlement to relief. Iqbal, 556 U.S.
at 679. A claim has facial plausibility when the
plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant
is liable for the misconduct alleged. Id. at 678.
Though
[s]pecific
facts
are
not
necessary, Erickson, 551
U.S.
at
93, and
68a
though Rule 8 does not impose a probability
requirement at the pleading stage, Twombly, 550
U.S. at 556, the factual allegations must be enough to
raise the claimed right to relief above the speculative
level and to create a reasonable expectation that
discovery will reveal evidence to support the
claim. Iqbal, 556 U.S. at 67879; Twombly, 550 U.S.
at 55556. This inquiry as to plausibility is a
context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.... [W]here the well-pleaded facts do not permit
the court to infer more than the mere possibility of
misconduct, the complaint has allegedbut it has
not show[n]that the pleader is entitled to
relief. Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P.
8(a)(2)).
A district court faced with a complaint
which it believes may be subject to
dismissal must: (1) allow service of the
complaint upon the defendant; (2) notify all
parties of its intent to dismiss the
complaint; (3) give the plaintiff a chance to
either amend his complaint or respond to
the reasons stated by the district court in
its notice of intended sua sponte dismissal;
(4) give the defendant a chance to respond
or file an answer or motions; and (5) if the
claim is dismissed, state its reasons for the
dismissal.
Tingler v. Marshall, 716 F.2d 1109, 1112 (6th Cir.
1983).
III. Analysis
69a
Plaintiff brings two counts against defendant
Criminal Defense Corporation: Count 1 alleging
violations of 42 U.S.C. 1983 and Count 4 for breach
of contract. In response to the Court's order, plaintiff
puts a fine point on the challenge faced by these
claims:
As explained in detail below, the rights at
issue are Mr. Bright's right of free speech
as an advocate for criminal defendants, his
right to equal protection, and his right to
due process in relation to his termination
as a public defender by [the Criminal
Defense Corporation]. Those rights were
violated when [the Criminal Defense
Corporation] took the path of least
resistance and fired Mr. Bright because he
could not practice law before Judge Evans.
Doc. 48 at 1 (emphasis added).
Plaintiff's complaint includes several allegations
that are specific to the Criminal Defense
Corporation. He alleges repeatedly that the reason
for his termination by the Criminal Defense
Corporation was because he could no longer perform
his job after Judge Evans removed him from all of his
felony criminal representations. See doc. 18 1, 32.
Plaintiff also alleges that the Corporation terminated
him for a retaliatory purpose: The Defendants
singled out the Plaintiff in retaliation for exercising
his freedom of speech when they ended his career as
a public defender in Gallia County, which would
deter a lawyer of ordinary firmness from continuing
to challenge Judge Evans on his courtroom policies.
Doc. 18 42.
70a
Plaintiff also makes allegations related to his
claim that the Criminal Defense Corporation failed to
intervene on his behalf or protect him from Judge
Evans's actions. At no time did the [Criminal
Defense Corporation or other defendants] formally
challenge the actions of Judge Evans terminating
Plaintiff as a public defender .... At no time did [they]
support Mr. Bright by, for example, requesting
visiting judges or assigning Bright to misdemeanor
cases where he would not be arguing in front of
Judge Evans. Doc. 18 31.
Finally, in support of his breach of contract claim,
plaintiff alleges that the Criminal Defense
Corporation knowingly wrongfully terminated Mr.
Bright's employment in violation of public policy that
a public defender, once appointed, should not be
intimidated, harassed, or face adverse employment
action without good cause shown . Doc. 18 39.
a. 42 U.S.C. 1983
i. Retaliation
Where a plaintiff's 1983 claim rests on an
allegation that the defendant retaliated against the
plaintiff for exercising federal or constitutional
rights, plaintiff must plead factual allegations
sufficient to establish that (1) the plaintiff engaged
in constitutionally protected conduct; (2) an adverse
action was taken against the plaintiff that would
deter a person of ordinary firmness from continuing
to engage in that conduct; and (3) the adverse action
was motivated at least in part by the plaintiff's
protected conduct. HandyClay v. City of Memphis,
Tenn., 695
F.3d
531,
539
(6th
Cir.
71a
2012) (quoting Fritz
v.
Charter
Twp.
Comstock, 592 F.3d 718, 723 (6th Cir. 2010)).
Of
Plaintiff alleges that the Criminal Defense

Corporation terminated him in retaliation for
exercising clearly established rights, privileges, and
immunities secured by the First and Fourteenth
Amendment to the United States Constitution
including but not limited to the right to free speech,
free association, substantive due process, procedural
due process and equal protection under the law. Doc.
18 47. In response to the Court's order of additional
briefing, plaintiff limits his focus to four types of
constitutional rights: The First Amendment right to
speech, and the Fourteenth Amendment rights to
equal protection, procedural due process, and
substantive due process. See, doc. 48 at 311. The
challenge faced by plaintiff's retaliation claims is that
in the face of a very compelling rationale for the
Criminal Defense Corporation's termination of
plaintiff, because he could not practice before Judge
Evans, doc. 18 32, plaintiff's allegations do not
make it plausible that retaliation for the exercise of
constitutional rights was also among the Criminal
Defense Corporation's rationales in terminating
plaintiff. Plaintiff presents one very compelling
reason that the Criminal Defense Corporation
terminated himbecause he could no longer perform
a major function of his job, representing indigent
felony defendants in Gallia County, Ohio. Inability to
perform the task assigned is a very strong reason for
termination. Given that defendant Criminal Defense
Corporation had a very good reason to terminate
plaintiff, plaintiff faces a challenge in presenting
allegations that would make it plausible that the
72a
corporation also had other impermissible and
retaliatory motives. Here, all plaintiff presents is the
bare allegation against all defendants that they
singled out the Plaintiff in retaliation for exercising
his freedom of speech .... Doc. 18 42. This
allegation alone, especially in the face of a very
compelling reason for termination, is insufficient to
make
plaintiff's
retaliation
claim
plausible. See, Iqbal, 556 U.S. at 678 (A claim has
facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the
misconduct alleged.).
Plaintiff's failure to make allegations that make it
plausible that he was terminated in retaliation for
exercising some right rather than because he could
not perform major functions of his job is fatal to his
FirstAmendment retaliation claim. A First
Amendment retaliation claim requires a causal
connection between constitutionally protected
speech or conduct and the defendant's adverse
action against the plaintiff. Vereecke v. Huron Valley
Sch. Dist., 609 F.3d 392, 399 (6th Cir. 2010). It is
that causal connection that is missing here. Plaintiff
was terminated because he could not perform his job,
not because of constitutionally protected speech made
when he did perform it.
ii. Equal Protection
Plaintiff's equal protection class of one claim
fails for similar reasons. Such a claim requires that
the plaintiff allege that he was intentionally treated
differently from others similarly situated and that
there is no rational basis for the difference in
73a
treatment. Vill. Of Willowbrook v. Olech, 528 U.S.
562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). As
discussed above, plaintiff's allegations make it clear
that the Criminal Defense Corporation had a
compelling reason to terminate the plaintiff, so
plaintiff's allegations do not state a claim that his
termination lacked a rational basis.
iii. Procedural Due Process
Under the Due Process Clause, plaintiff claims a
property interest in his continued employment, his
ability to practice law before the Gallia County Court
of Common Pleas, and his good reputation. As an
initial matter, plaintiff has not alleged facts that
would support his claim that the Criminal Defense
Corporation took away his ability to practice law
before the Gallia County Court of Common Pleas, nor
is it apparent how the Corporation could possibly
have done so. As the Court has previously explained,
the governance of the Ohio bar lies within the
exclusive jurisdiction of the Supreme Court of
Ohio. See State ex rel. Buck v. Maloney, 102 Ohio
St.3d 250, 809 N.E.2d 20, 22 (Ohio 2004) (Article IV
of the Ohio Constitution grants this court general
supervisory power over the courts of Ohio ....).
For the remaining property rights alleged by
plaintiff in his procedural due process claims-in his
job and his reputation[t]his court undertakes a
two-step analysis .... The first step determines
whether the plaintiff has a property interest entitled
to due process protection. Second, if the plaintiff has
such a protected property interest, this court must
then determine what process is due. Mitchell v.
Fankhauser, 375
F.3d
477,
480
(6th
Cir.
74a
2004) (citations
omitted,
quoting Leary
v.
Daeschner, 228 F.3d 729, 74142 (6th Cir. 2000)).
However, in order to prevail on a procedural due
process challenge, [plaintiff] must also show
prejudice. Indeed, we need not address the merits of
a claim if there is no demonstration of prejudice....
Moreover, to establish the requisite prejudice, he
must show that the due process violations led to a
substantially different outcome from that which
would have occurred in the absence of those
violations.Graham v. Mukasey, 519 F.3d 546, 549
50 (6th Cir. 2008) (citing Warner v. Ashcroft, 381
F.3d 534, 539 & n. 1 (6th Cir. 2004) and Garza
Moreno v. Gonzales, 489 F.3d 239, 24142 (6th Cir.
2007)). On this basis, plaintiff's procedural due
process claims fail. Plaintiff has alleged that he could
not practice law before Judge Evans, and that he was
terminated for that reason. Had plaintiff received the
hearing or other process that he may have been due,
there is nothing that he could plausibly have said
that would alter the fact that he was being
terminated because he could no longer satisfy a
major requirement of his job.
iv. Substantive Due Process
Plaintiff's substantive due process claim fails for a
similar reason.
This court has recognized that the
Fourteenth Amendment has a substantive
due process component that protects
specific fundamental rights of individual
freedom and liberty from deprivation at the
hands of arbitrary and capricious
government action.Sutton v. Cleveland Bd.
75a
Of Educ., 958 F.2d 1339, 1350 (6th Cir.
1992) (quotation marks and citation
omitted). Absent the infringement of some
fundamental right, however, this court has
held that the termination of public
employment does not constitute a denial of
substantive due process. Id. at 1351.
Young v. Township of Green Oak, 471 F.3 d 674, 684
(6th Cir. 2006). Here, plaintiff claims that two such
fundamental rights are at issue, his First
Amendment speech right and a right against
arbitrary denial of the pursuit of a career. Doc. 18 at
9. The Criminal Defense Corporation did not violate
either right. As discussed above, it did not limit his
speech or retaliate against him for exercising his
speech rights. Nor did it arbitrarily terminate him.
To the contrary, the plaintiff provides a logical
reason for his terminationbecause he could not
appear before Judge Evans.
v. Vicarious liability under 1983
Finally, plaintiff has advanced a theory of
vicarious liability, under which the Criminal Defense
Corporation is allegedly liable for failing to protect
him from Judge Evans's actions or to intervene on his
behalf: At no time did the [defendants] formally
challenge the actions of Judge Evans terminating
Plaintiff as a public defender with respect to the
cases other than that of Mr. G even though these
actions were clearly outside his jurisdiction as a
common pleas judge. Doc. 18 31. However,
under Section 1983, a plaintiff must demonstrate
that the actor directly participated in the alleged
misconduct, at least by encouraging, implicitly
76a
authorizing, approving or knowingly acquiescing in
the
misconduct,
if
not
carrying
it
out
himself. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th
Cir. 1999). To prove acquiescence, it is not enough to
show that the actor merely failed to act against
misconduct of which he was aware. Flagg v. City of
Detroit, F.3d , 2013 WL 1759895 at *6 (6th
Cir. 2013). Here, plaintiff has only alleged that the
Criminal Defense Corporation failed to protect him
from Judge Evans's actions. Even reading plaintiff's
allegations in the most liberal light to allege
cooperation or approval, without some supervisory
relationship
between
the
Criminal
Defense
Corporation and the judgeand there was none,
plaintiff
cannot
state
claim
for
vicarious
liability. See Shehee, 199 F.3d at 300.
b. Breach of Contract
Plaintiff's amended complaint also includes a
claim that the Criminal Defense Corporation
breached his employment contract by terminating
him without good cause. It is far from clear that
plaintiff had the right that he claimsnot to be
terminated other than for good cause. He bases this
right on Ohio Rev. Code 120.14(A):
(1) Except as provided in division (A)(2) of
this section, the county public defender
commission shall appoint the county public
defender and may remove him from office
only for good cause.
(2) If a county public defender commission
contracts with the state public defender or
with one or more nonprofit organization for
the state public defender or the
77a
organizations to provide all of the services
that the county public defender is required
or permitted to provide by this chapter, the
commission shall not appoint a county
public defender.
Plaintiff was not a county public defender
appointed by a county public defender commission
under Section 120.14(A)(1). He was an attorney hired
as public defender by the Criminal Defense
Corporation, with which the Gallia County Public
Defender Commission had contracted under Section
120.14(A)(2). Yet he claims he is entitled to the
protections of (A)(1).
This appears to be a question of first impression
under Ohio Law, and this Federal District Court
need not decide it. Because this order dismisses all of
plaintiff's federal claims against the Criminal
Defense Corporation, the Court declines to exercise
supplemental jurisdiction over the remaining state
law claim against that defendant. See 28 U.S.C.
1367(c)(3).
V. Conclusion
Based on the foregoing reasons, plaintiff's claims
against the Criminal Defense Corporation arising
under 42 U.S.C. 1983 are DISMISSED with
prejudice. Plaintiffs state-law breach of contract
claim is DISMISSED without prejudice.
IT IS SO ORDERED.
S/ James L Graham
78a
James L. Graham

Bright Petition For Cert

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Bright Petition For Cert

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No.

Supreme Court of the United States

GALLIA COUNTY, OHIO; BOARD OF

On Petition for Writ of Certiorari to the

Jacklyn Gonzales Martin

Counsel for Petitioners

District Court Proceedings ............................... 7

Court of Appeals for the Sixth Circuit

REASONS FOR GRANTING THE PETITION.......... 9

The Supreme Court has not given

The issue of whether an attorney has a

Federal and State courts are divided as to

The Question Presented is Ripe for

Order Denying Panel Rehearing en

Opinion in the United States Court of

Opinion and Order in the United

Opinion and Order in the United

Opinion and Order in the United

In 2011, Petitioner Robert Bright was hired by

District Court Proceedings

On September 4, 2012, Petitioner filed a

Court of Appeals for the Sixth Circuit

On appeal the Sixth Circuit reversed the district

Kathleen Sullivan, The Intersection of Free Speech and the

Rights, 67 FORDHAM L. REV. 569, (1998) (analyzing the tension

See Sullivan, supra note 1, at 569.

3Margaret Tarkington, A Free Speech Right to Impugn Judicial

Standing Comm. On Legal Aid & Indigent Defendants,

Date: January 16, 2015

Order Denying Panel Rehearing en

Opinion in the United States Court of

Opinion and Order in the United

Opinion and Order in the United

Opinion and Order in the United

1The burden of persuasion on this prong then shifts to the

district court read this statement as an admission by

district court rejected this argument on the grounds that

aliens being deported for immigration offenses, and the due

Case No. 2:12-

Magistrate Judge Deavers

Gallia County, Ohio and the

Case No. 2:12-

Magistrate Judge Deavers

Gallia County, Ohio and the

Case No. 2:12-

Plaintiff alleges that the Criminal Defense

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