NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0313n.06

                                            No. 19-3803

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                        FILED
MARCUS NEWELL,                                         )                          Jun 01, 2020
                                                       )                      DEBORAH S. HUNT, Clerk
       Plaintiff-Appellant,                            )
                                                       )
v.                                                     )
                                                       )      ON APPEAL FROM THE
                                                       )      THE UNITED STATES DISTRICT
CASEY HUEPENBECKER; HENRY                              )      COURT FOR THE NORTHERN
COUNTY, OH, BOARD OF                                   )      DISTRICT OF OHIO
COMMISSIONERS,                                         )
                                                       )
       Defendants-Appellees.                           )      OPINION


BEFORE: NORRIS, DONALD, and NALBANDIAN, Circuit Judges.

       ALAN E. NORRIS, Circuit Judge. On April 5, 2016, Casey Huepenbecker, a special

deputy sheriff for Henry County, and Marcus Newell were receiving firearms training at a range

operated by the City of Napoleon, Ohio. During a break, Huepenbecker asked for, and received,

permission to clean his weapon. Shortly after cleaning the gun, he set it on a picnic table near

where other trainees were relaxing. It fired and the bullet hit Newell in the back. The shot damaged

his liver, cracked a vertebra, and caused the loss of his spleen.

       No one disputes what happened. The only issue is where responsibility lies. As part of his

quest for compensation, Newell filed a Section 1983 suit in federal court naming Huepenbecker,

Henry County, its Commissioners, and the City of Napoleon as defendants. The complaint

included a second cause of action under Ohio law for negligence.
No. 19-3803, Newell v. Heupenbecker


        With respect to the federal cause of action, the district court granted summary judgment to

defendants Huepenbecker and the County while declining to exercise jurisdiction over the state-

law claim.1 This appeal followed. We now affirm.

                                                I.

        Ohio Revised Code § 311.04 authorizes the appointment of deputy sheriffs. In Henry

County, special deputies, which is the capacity in which defendant Huepenbecker served,

performed a limited set of duties as opposed to regular deputies. See 1989 Op. Att’y Gen. No. 89-

071, 2-323. Typical assignments included “parking duties and patrol at county-wide functions such

as fairs.”

year before the shooting, Huepenbecker had been appointed and sworn

in as a special deputy by Henry County Sheriff Michael Bodenbender. Special deputies are

required to complete the Ohio Peace Officer Training Academy (“OPOTA”) firearms course

before they can be authorized to carry a weapon or perform duties outside the presence of a fully

certified deputy. (Page ID 446) (Rules and Regulations of the Henry County Sheriff’s Auxiliary);

1989 Op. Att’y Gen. No. 89-071, 2-323. At the time of the accident, Huepenbecker was attending

the police academy at Northwest State Community College to obtain his OPOTA certification.

The County did not pay him for the time spent taking the course nor did it reimburse him for

tuition. Plaintiff Newell was likewise enrolled it the program. The shooting occurred during one

of the course sessions.

        In Henry County, special deputies receive compensation and assignments from the County

Sheriff’s Auxiliary, a non-governmental organization, rather than from the Sheriff’s Department.



        1
        In an earlier order, the district court granted summary judgment to the City of Napoleon.
That judgment has not been appealed.
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No. 19-3803, Newell v. Heupenbecker


Randy Hill served as the Auxiliary’s only officer during the period at issue. In his deposition, he

explained that there are two kinds of special deputies: those who have obtained OPOTA

certification and those who had not. With respect to the non-certified deputies, “they are not

allowed to work by themselves, not make arrests . . . they basically are there to provide assistance.”

These special deputies also do not carry a firearm. Sheriff Bodenbender noted during his deposition

that “I have never had a special deputy make an arrest.”

       Moreover, Huepenbecker never received a paycheck from Henry County; he was paid by

the Auxiliary. He knew that he would have to complete the OPOTA course to be considered for

employment in the Sheriff’s Department, which he acknowledged was his long-term goal.

However, he had not told Hill or anyone in the Sheriff’s Department that he was enrolled in the

course. He also stated during his deposition that he believed neither Hill nor Sheriff Bodenbender

“had any idea that [he was] at the Napoleon gun range on the day the shooting occurred.”

                                                 II.

       In his amended complaint, plaintiff alleged that defendants deprived him of his right to due

process under the Fourteenth Amendment and acted with deliberate indifference towards him. The

district court provided the following analysis in granting summary judgment to defendants with

respect to the Section 1983 claim:

               Liability arises under 42 U.S.C. § 1983 only if the defendant violated the
       plaintiff’s federal rights while acting “under color of state law.” West v. Atkins,
       

, 48 (1988). “[A]cting under color of state law requires that the
       defendant . . . have exercised the power ‘possessed by virtue of state law and made
       possible only because the wrongdoer is clothed with the authority of state law.’”
       Redding v. St. Eward, 

, 533 (6th Cir. 2001) (quoting

As the
       Court of Appeals stated in Waters v. City of Morristown, 

, 359 (6th
       Cir. 2001),
               [t]he key determinant is whether the actor intends to act in an official
               capacity or to exercise official responsibilities pursuant to state law . . . .
               Accordingly, a defendant’s private conduct, outside the course or scope of

                                                  3
No. 19-3803, Newell v. Heupenbecker


               his duties and unaided by any indicia of actual or ostensible state authority,
               is not conduct occurring under color of state law.
                Under this standard, Huepenbecker clearly did not shoot Newell under color
       of state law. He did not injure Newell by abusing power he possessed as a volunteer
       sheriff’s deputy, and he neither acted in an official capacity nor exercised official
       authority. The law-enforcement course was open to the public; the County did not
       authorize Huepenbecker to carry a gun; and the gun he used was not County-issued.
       Virtually anyone, County volunteer or not, could have discharged the bullet that
       struck Newell. Huepenbecker’s actions were “functionally equivalent to [those] of
       any private citizen.” 

–33 (holding that police officer did
       not act under color of state law when she called 911 during domestic dispute, even
       though she identified herself as an officer to the 911 operators). See also 

(holding that city alderman’s misconduct did not occur under color
       of state law because “he would have been in the same position to harass and abuse
       [the plaintiff] even if he had not been a city alderman”). Cf. Stengel v. Belcher,
       

, 439, 441 (6th Cir. 1975) (affirming determination that off-duty
       officer acted under color of state law, where officer shot three men (1) while
       intervening in dispute because of a duty imposed by police department (2) with a
       gun the department required him to carry). Newell emphasizes that the County
       required Huepenbecker to complete the course. This requirement, however, is
       insufficient to justify a finding that Huepenbecker acted under color of state law.

(Page ID 726-27) (references to record omitted). The court went on to hold that, because

Huepenbecker did not act under color of state law, the County is likewise not liable under § 1983.

       We recognize that we apply de novo review to the district court’s grant of summary

judgment and the reasoning that supports it. Does 8-10 v. Snyder, 

, 961 (6th Cir.

2019) (citation omitted). However, having had the benefit of the parties’ thoughtful briefs and oral

arguments, we are convinced that the district court reached the correct conclusion. A recent

decision by this court only reinforces our thinking. Morris v. City of Detroit, 789 F. App’x 516

(6th Cir. 2019). In that case, defendant Detroit police officer Jennifer Lee Adams attempted to

collect a personal debt while on duty. An altercation ensued and defendant discharged her

department-issued firearm. The bullet grazed one of the plaintiffs. Despite the fact that Adams was

on duty, we upheld the district court’s grant of summary judgment to Adams because she did not

attempt “to use her status as a police officer advantageously during the altercation.”

                                                 4
No. 19-3803, Newell v. Heupenbecker


Even the use of her city-issued revolver did not transform the case into one proceeding under color

of state law.

A quick comparison of Morris to the appeal before us illustrates why

plaintiff’s federal cause of action fails. Unlike the officer in Morris, Huepenbecker used his own

firearm and was not “on duty.” Like Officer Adams, however, Special Deputy Huepenbecker’s

status as a government official played no role whatsoever in the events giving rise to the lawsuit.

He had enrolled in the firearms course as a private citizen and was advancing his own interests at

his own expense when the unfortunate accident occurred. See 

(“Section

1983 is generally not implicated unless a state actor’s conduct occurs in the course of performing

an actual or apparent duty of his office, or unless the conduct is such that the actor could not have

behaved as he did without the authority of his office.”). For all of these reasons, we hold that

Huepenbecker did not act under color of state law and is therefore entitled to summary judgment

on the § 1983 claim lodged against him.

       Having reached this conclusion, it follows that the County is likewise entitled to summary

judgment. If one of its employees did not commit a constitutional violation, any such claim against

it must also fail. Morris, 789 F. App’x at 519 (holding that constitutional liability requires more

than that the municipality employs a tortfeasor). In this case, plaintiff’s complaint included a state-

law claim for negligence that would seem to be a more appropriate avenue of redress for his

injuries. The district court declined to retain jurisdiction over that cause of action and dismissed it

without prejudice.

                                                 III.

       The judgment is affirmed.




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