LaVon Moore v. Hiram Twp., Ohio

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0041p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

LAVON MOORE, Successor Trustee of the Clarence M. ┐
Moore and Laura P. Moore Trust, │
Plaintiff-Appellant, │
> No. 20-3259
│
v. │
│
│
HIRAM TOWNSHIP, OHIO; JANET PANCOST; GARY │
BOTT; THOMAS FRANEK; RICHARD GANO; DOES 1–10, │
Defendants-Appellees. │
┘

Appeal from the United States District Court
for the Northern District of Ohio at Akron.
No. 5:19-cv-01750—George J. Limbert, Magistrate Judge.

Decided and Filed: February 19, 2021

Before: MOORE, GILMAN, and GRIFFIN, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Joel A. Holt, ICKES & HOLT, Stow, Ohio, for Appellant. Tonya J. Rogers,
BAKER, DUBLIKAR, BECK, WILEY & MATHEWS, North Canton, Ohio, for Appellees.

GILMAN, J., delivered the opinion of the court in which GRIFFIN, J., joined. MOORE,
J. (pp. 17–24), delivered a separate dissenting opinion.
_________________

OPINION
_________________

RONALD LEE GILMAN, Circuit Judge. This case involves a zoning dispute over
LaVon Moore’s right to continue using his rural property in Ohio as a private airport.
 No. 20-3259 Moore v. Hiram Twp., Ohio Page 2

Moore filed the present suit under 42 U.S.C. § 1983, alleging that Hiram Township, members of
the Township’s Board of Zoning Appeals (BZA members), and the Township’s Zoning Inspector
(collectively, the defendants) violated (1) his procedural due process rights by not following the
proper process for issuing a certificate of nonconforming use, (2) his substantive due process
rights by unlawfully restricting the use of his property, and (3) his equal protection rights by not
requiring other similarly situated landowners to apply for a certificate of nonconforming use.
The district court dismissed the case based on the doctrine of res judicata. For the reasons set
forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

Because we are reviewing a dismissal pursuant to Rule 12(c) of the Federal Rules of
Civil Procedure, we accept as true all of the factual allegations contained in Moore’s complaint.
See Kottmyer v. Maas, 436 F.3d 684, 689 (6th Cir. 2006). Moore is the successor trustee of an
Ohio trust that is the record title holder of approximately 108 acres of real property located in
Hiram, Ohio (the Property). Although Laureen Ruth Moore Copeland was listed as the successor
trustee in the prior state-court litigation involving this zoning dispute, LaVon Moore now serves
in that role. The Moore family, individually or in trust, has owned and maintained the Property
since 1813. They have operated Far View Airport, a small airport located on the Property, since
1948.

Around 1951, the Township enacted a zoning resolution that zoned the Property as
Rural-Residential and classified the airport as a nonconforming use. Under Ohio zoning law, a
“nonconforming use” is a lawful, preexisting use of property established prior to the enactment
of a land-use regulation. See Ohio Rev. Code § 519.19. A nonconforming use can continue so
long as the use is not abandoned for two years or more. Id.

The airport has been active in varying degrees since its inception. But its use for
ultralight aircraft and hang gliders started only recently, and that use has prompted nuisance
complaints from neighboring landowners. In 2016, Township officials told Moore that he
needed to acquire a certificate of nonconforming use in order to continue the airport’s operations.
After two unsuccessful attempts to secure a certificate, Moore was directed to apply to the BZA.
 No. 20-3259 Moore v. Hiram Twp., Ohio Page 3

This prompted Moore to request a certificate from Zoning Inspector Richard Gano, who in turn
referred the matter to the BZA for a hearing.

In September 2016, the BZA conducted a public hearing to determine whether to issue
Moore a certificate of nonconforming use. The BZA voted to grant Moore a certificate at the
end of the hearing, but imposed several conditions on the certificate. Moore timely appealed the
BZA’s decision to the Portage County Common Pleas Court pursuant to Ohio Revised Code
§ 2506.01 et seq. (hereinafter the § 2506 Appeal), naming Hiram Township as the sole
defendant. He argued that the BZA’s actions were illegal, arbitrary, capricious, unreasonable,
and unconstitutional because, among other things, (1) the BZA erred by issuing Moore an
improper certificate of nonconforming use, (2) the BZA exceeded its statutory authority by
placing illegal conditions on Moore’s nonconforming use, (3) the BZA violated Ohio law by
placing conditions on Moore’s nonconforming use that effectively barred the use from
continuing if the airport was ever sold or transferred, and (4) the BZA erred by not following its
regular procedures for issuing a nonconforming-use certificate.

In July 2017, the state trial court determined that the BZA had properly issued the
certificate, but the court modified several of the conditions imposed by the BZA. Both Moore
and the Township appealed the trial court’s judgment to the Ohio Court of Appeals. The
Township argued that the trial court’s modifications to the restrictions placed on the certificate
were inconsistent with both the Moore family’s prior use and the Township’s zoning resolution.
Moore in turn argued that (1) the restrictions placed on the certificate were themselves unlawful,
and (2) the trial court erred in holding that the BZA was authorized to decide that large-scale use
of the airport for ultralight aircraft and hang gliders was a nuisance. In December 2018, the Ohio
Court of Appeals affirmed the trial court’s judgment in its entirety. Neither the Township nor
Moore appealed the matter to the Ohio Supreme Court.

While his appeal of the state trial-court judgment was pending in the Ohio Court of
Appeals, Moore turned to the federal courts and filed a complaint in October 2018. As set forth
in an authorized refiled complaint, Moore’s four claims against the defendants are for
(1) a violation of his procedural due process rights under 42 U.S.C. § 1983 for allegedly not
pursuing the proper process for issuing a certificate of nonconforming use, (2) a violation of his
 No. 20-3259 Moore v. Hiram Twp., Ohio Page 4

substantive due process rights under 42 U.S.C. § 1983 for restricting the use of his property in an
allegedly unlawful manner, (3) a violation of his equal protection rights under 42 U.S.C. § 1983
for not requiring other allegedly similarly situated landowners to apply for a certificate of
nonconforming use, and (4) punitive damages. The Township and the individual defendants
filed a motion for judgment on the pleadings based on res judicata, qualified immunity, and the
expiration of the statute of limitations. In January 2020, the district court granted the motion,
concluding that Moore’s claims were barred by the doctrine of res judicata. This timely appeal
followed.

II. ANALYSIS

A. Standard of review

We review de novo a judgment on the pleadings granted pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure, using the same standard that applies to a review of a motion to
dismiss under Rule 12(b)(6). Roger Miller Music, Inc. v. Sony/ATV Publishing, LLC, 477 F.3d
383, 389 (6th Cir. 2007). “For purposes of a motion for judgment on the pleadings, all well-
pleaded material allegations of the pleadings of the opposing party must be taken as true, and the
motion may be granted only if the moving party is nevertheless clearly entitled to judgment.”
Tucker v. Middleburg-Legacy Place, 539 F.3d 545, 549 (6th Cir. 2008) (internal citation and
quotation marks omitted).

B. Res judicata

Federal courts give the same preclusive effect to a state-court judgment as that judgment
would receive in the rendering state, meaning that “if an individual is precluded from litigating a
suit in state court by the traditional principles of res judicata, he is similarly precluded from
litigating the suit in federal court.” Ohio ex rel. Boggs v. City of Cleveland, 655 F.3d 516, 519
(6th Cir. 2011) (quoting ABS Indus., Inc. ex rel. ABS Litig. Trust v. Fifth Third Bank, 333 F.
App’x 994, 998 (6th Cir. 2009)). We look to Ohio law to assess whether res judicata should
attach to the state-court judgment in the present case. Id.
 No. 20-3259 Moore v. Hiram Twp., Ohio Page 5

Under Ohio law, the doctrine of res judicata encompasses two related concepts: claim
preclusion and issue preclusion. O’Nesti v. DeBartolo Realty Corp., 862 N.E.2d 803, 806 (Ohio
2007) (citation omitted). As a general matter, claim preclusion bars the litigation of claims that
were or could have been litigated in the original action. Id. Issue preclusion is more limited,
preventing the relitigation of a specific fact or point previously determined by a court. Id. The
defendants argue that both apply here. But because claim preclusion bars all of Moore’s claims,
we need not address issue preclusion.

This court has distilled Ohio’s doctrine of claim preclusion down to the following four
elements:

(1) a prior final, valid decision on the merits by a court of competent jurisdiction;
(2) a second action involving the same parties, or their privies, as the first; (3) a
second action raising claims that were or could have been litigated in the first
action; and (4) a second action arising out of the transaction or occurrence that
was the subject matter of the previous action.

Boggs, 655 F.3d at 520 (quoting Hapgood v. City of Warren, 127 F.3d 490, 493 (6th Cir. 1997)).

The defendants bear the burden of proof as to each element. See Winget v. JP Morgan
Chase Bank, N.A., 537 F.3d 565, 572 (6th Cir. 2008). Moore, however, does not dispute that this
action arises out of the same transaction or occurrence as his prior state-court suit. The fourth
element is therefore satisfied because both actions concerned the issuance of the certificate of
nonconforming use, leaving only the first three elements to be examined.

1. Final adjudication on the merits

A judgment was entered by the state trial court that affirmed in part and modified in part
the BZA’s administrative decision. The judgment specifically discussed the facts of the case and
concluded that, although the BZA had properly issued the certificate, some of the conditions
imposed by the certificate were improper and thus had to be modified. Such a judgment
constitutes a “decision on the merits.” See Hendrix v. Roscommon Twp., 2004 WL 1197359, at
*5 (E.D. Mich. May 18, 2004) (finding that the state trial court’s judgment in a zoning dispute
regarding a nonconforming use constituted a final decision on the merits). The fact that the state
 No. 20-3259 Moore v. Hiram Twp., Ohio Page 6

trial court acknowledged but did not expressly address Moore’s constitutional challenges is
immaterial because the court necessarily rejected the challenges in entering its judgment. See id.

Moreover, “[w]hether the original claim explored all the possible theories of relief is not
relevant” to the claim-preclusion analysis. Brown v. City of Dayton, 730 N.E.2d 958, 962 (Ohio
2000). As discussed below, even if Moore’s § 1983 claims are distinct from the underlying
challenge (which they are not), they could have been brought in the underlying action and are
thus subsumed by the state trial court’s judgment for res judicata purposes. See Heike v. Cent.
Michigan Univ. Bd. of Trustees, 573 F. App’x 476, 480, 483 (6th Cir. 2014) (holding that, where
a plaintiff’s new Title IV and Title IX claims could have been litigated with her original § 1983
equal protection and due process claims, the grant of summary judgment in an earlier action
constituted a “final adjudication on the merits”).

Also irrelevant is whether the state trial court was ultimately wrong in its judgment. The
Supreme Court has held that “the res judicata consequences of a final, unappealed judgment on
the merits” are not “altered by the fact that the judgment may have been wrong or rested on a
legal principle subsequently overruled in another case.” Federated Department Stores, Inc. v.
Moitie, 452 U.S. 394, 398 (1981). If Moore believed that the state trial court issued an erroneous
ruling on the constitutional issues, he could have raised those issues in his appeal to the Ohio
Court of Appeals (which he did not do) and requested further review by the Ohio Supreme Court
(which he also did not do) instead of filing a collateral attack in federal court. See id. at 398–99.

2. Same parties or their privies

Moore concedes that, although the Moore Family Trust was represented by a different
successor trustee in the state-court action, both Moore and the Township were parties to the
§ 2506 Appeal. The parties dispute, however, whether the remaining defendants in this action
(Zoning Inspector Gano and the BZA members) are in “privity” with the Township.

A final judgment on the merits of an action bars not only the same parties from
relitigating claims that were or could have been raised in that action, but also parties to the
second case who are in privity with a party bound by the earlier judgment. Richards v. Jefferson
County, 517 U.S. 793, 798 (1996). Under Ohio law, privity is “somewhat amorphous,” and
 No. 20-3259 Moore v. Hiram Twp., Ohio Page 7

“[a] contractual or beneficiary relationship is not required.” Brown, 730 N.E.2d at 962. It is
created when there is a “mutuality of interest, including an identity of desired result” between the
two parties. Id.; see also State ex rel. Schachter v. Ohio Pub. Emps. Ret. Bd., 905 N.E.2d 1210,
1217 (Ohio 2009) (same). But such mutuality of interest exists only if “the person taking
advantage of the judgment would have been bound by it had the result been the opposite.”
O’Nesti v. DeBartolo Realty Corp., 862 N.E.2d 803, 806 (Ohio 2007) (quoting Johnson’s Island,
Inc. v. Danbury Twp. Bd. of Trustees, 431 N.E.2d 672, 675 (Ohio 1982)).

Ohio courts have thus found that privity exists when “a government official is sued in his
individual and in his official capacity,” id. (citing Kirkhart v. Keiper, 805 N.E.2d 1089, 1093
(Ohio 2004)), “between an association and its individual members when the members are liable
by law for a judgment against the association,” id. (citing State ex rel. Clinton Mut. Ins. Assn. v.
Bowen, 9 N.E.2d 494, 497 (Ohio 1937)), and in a “principal-agent relationship . . . where the
claims alleged are within the scope of the agency relationship,” ABS Indus., Inc. ex rel. ABS
Litig. Tr. v. Fifth Third Bank, 333 F. App’x 994, 999 (6th Cir. 2009) (collecting Ohio cases).
Relevant to this case, Ohio courts have established that “a government official who is sued in
his or her official capacity is in privity with the governmental entity.” Denton v. Bedinghaus,
2002-Ohio-3273, 2002 WL 1393563, at *4 ¶ 16 (Ohio Ct. App. 2002), aff’d sub nom. State ex
rel. Denton v. Bedinghaus, 784 N.E.2d 99 (Ohio 2003); see also Stotts v. Pierson, 976 F. Supp.
2d 948, 962 (S.D. Ohio 2013) (noting the lack of dispute that the city and the BZA members, in
their official capacities, were privies of the BZA for purposes of res judicata).

Moore named Township BZA Members Gary Bott, Thomas Franek, and Janet Pancost,
as well as Township Zoning Inspector Gano, as defendants. Although he did not indicate in his
complaint whether he was suing them in their official or individual capacities, Moore’s opening
brief to this court makes clear that this is an official-capacity suit. Moore first delineates the
difference between official-capacity and individual-capacity suits, explaining that the former
involves officials “acting in their official capacity, cloaked in authority, abusing their authority.”
He then states that he “clearly alleged that Gano and the BZA Members, individually and
collectively, acted in their official capacities as the zoning inspector and BZA in a manner that
 No. 20-3259 Moore v. Hiram Twp., Ohio Page 8

exceeded and abused their lawful authority under the Zoning Resolution and Ohio law.”
(Emphasis in original.)

Although parts of the complaint might suggest an individual-capacity suit as well, such as
allegations that the defendants “individually and collectively” took certain actions and that the
defendants are “jointly and severally liable,” Moore’s briefing is murky as to these arguments
and clearest as to the assertion underlined above. Cf. Moore v. City of Harriman, 272 F.3d 769,
774 (6th Cir. 2001) (noting that “[e]ven assuming the complaint itself failed to provide sufficient
notice, [the plaintiff’s] response . . . clarified any remaining ambiguity” by expressly stating that
the officers are “being sued in their individual capacities”); see also Abdur-Rahman v. Michigan
Dep’t of Corr., 65 F.3d 489, 491 (6th Cir. 1995) (finding that the pro se plaintiff cleared up the
ambiguity in his motion for summary judgment). Taking the pleadings as a whole and conscious
of the importance of fair notice to the individual defendants, we agree with the district court that
Moore has brought his claims against the defendants in their official capacities only. See Wells
v. Brown, 891 F.2d 591, 594 (6th Cir. 1989) (“It is certainly reasonable to ask that all plaintiffs
. . . alert party defendants that they may be individually responsible in damages.”).

But even if we were to conclude that the BZA members and Zoning Inspector Gano
should also be considered sued in their individual capacities, the Ohio Supreme Court has
determined that “when a party is sued as an individual for actions taken solely in her official role,
res judicata may not be circumvented.” Kirkhart, 805 N.E.2d at 1093 (finding privity when “a
plaintiff brings two lawsuits against the same public officials for acts performed in their official
roles, even though the defendants were sued in their official capacities in one lawsuit and in their
individual capacities in the other”). This prevents a party from being able to “escape the rule of
res judicata through expansive pleading.” Id. (citation omitted).

In the present case, all of the actions that Moore complains about were taken by the
individual defendants in the exercise of their official duties as employees of the Township. See
id. (finding privity where allegations from both complaints were “based upon the same conduct,
and all of the alleged wrongdoing stem[med] from conduct by the defendants in their official
roles” that “could only have been taken [ ] in the exercise of their official duties” (emphasis in
original)). To the extent that Moore labels the BZA members’ routine conduct as individual and
 No. 20-3259 Moore v. Hiram Twp., Ohio Page 9

unauthorized actions, such conclusory and threadbare allegations are insufficient to survive a
judgment on the pleadings. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[T]he tenet that a
court must accept a complaint’s allegations as true is inapplicable to threadbare recitals of a
cause of action’s elements, supported by mere conclusory statements.”).

The same result would be reached even if the state court had found in favor of Moore and
against the Township in the first action because the BZA members and Zoning Inspector Gano
would have been bound by the result. Such mutuality of interest is also evidenced by the fact
that Moore lumps all the defendants—the Township, the BZA members, and Zoning Inspector
Gano—together throughout his complaint and in his Prayer for Relief. In sum, even if these
defendants were deemed to be named in both their individual and official capacities, that would
not be enough to bypass the application of res judicata.

3. Claims actually litigated or that should have been litigated

Moore’s final argument is that the district court erred in its analysis because he did not,
and could not, litigate his constitutional claims as part of his administrative appeal. But the
record shows that Moore did litigate his constitutional claims in his administrative appeal and,
even if he did not, that he could have.

In the state-court action, Moore alleged that the BZA acted outside the scope of its
authority, and that the certificate of nonconforming use, as well as the procedures used to issue
the certificate, were unconstitutional. Moore further alleged that the unlawful application of the
zoning regulations violated his constitutional rights. The state trial court, after considering these
arguments, modified the certificate when it determined that certain conditions listed in the
certificate were “clearly improper.” Moore did not raise any specific constitutional issues on
appeal to the Ohio Court of Appeals, which affirmed the judgment of the lower court. Neither
party sought review by the Ohio Supreme Court.

Moore’s claims in the case before us allege the same constitutional challenges as in the
state-court action, albeit in different packaging. He argues again that the BZA acted outside the
scope of its authority and that the procedures used to issue the certificate were unconstitutional,
thus violating his procedural due process, substantive due process, and equal protection rights.
 No. 20-3259 Moore v. Hiram Twp., Ohio Page 10

Although Moore provides specific labels to his constitutional rights in the present action, the
allegations in the state-court action and the allegations at issue here are ultimately the same. See
generally Negin v. City of Mentor, 601 F. Supp. 1502, 1504 (N.D. Ohio 1985) (holding that the
Ohio Supreme Court’s decision that the zoning practices in question were unconstitutional barred
relitigating in federal court whether the landowner’s due process rights were violated, even
though (1) the state court “did not resolve precisely the same issues as raised by [the federal]
case,” and (2) the federal case, unlike the administrative appeal, was brought pursuant to
§ 1983). Moore’s current constitutional challenges were in fact litigated in his first suit, where
his arguments were rejected and not pursued on appeal.

But even if Moore’s claims were not actually litigated in the underlying action, they
could have been. The doctrine of res judicata requires a plaintiff to advance all theories for every
ground of relief in the first action or be forever barred from asserting it. Grava v. Parkman Twp.,
653 N.E.2d 226, 229 (Ohio 1995). Ohio’s view of res judicata is “expansive.” Demsey v.
Demsey, 488 F. App’x 1, 4 (6th Cir. 2012). That “different legal theories casting liability on an
actor may apply to a given episode does not create multiple transactions and hence multiple
claims,” even if the theories “depend on different shadings of the facts . . . or [ ] call for different
measures of liability or kinds of relief.” Id. (quoting Grava, 563 N.E.2d at 229). Where, as here,
claims brought in the second suit “arose from the same transaction, or series of transactions”
forming the basis of the first suit, those claims must be litigated in the earlier action. Rawe v.
Liberty Mut. Fire Ins. Co., 462 F.3d 521, 529 (6th Cir. 2006) (internal citation and quotation
marks omitted).

Moore’s procedural due process, substantive due process, and equal protection claims
each stem from the same occurrence—the issuance of the certificate of nonconforming use—that
was litigated in the state-court action, and thus could have been litigated at that time. His
argument that a general constitutional claim is far different than a § 1983 constitutional tort is
unpersuasive where each set of claims “arose from the same transaction.” See Rawe, 462 F.3d at
529 (citation omitted).

Moore next argues that he could not have brought his § 1983 claim in the state-court
action because he is now seeking money damages, a remedy barred by Ohio Revised Code
 No. 20-3259 Moore v. Hiram Twp., Ohio Page 11

§ 2506.04. He is correct in pointing out that § 2506.04 sets forth limited options available to
state trial courts in their review of administrative rulings:

Consistent with its findings, the court may affirm, reverse, vacate, or modify the
order, adjudication, or decision, or remand the cause to the officer or body
appealed from with instructions to enter an order, adjudication, or decision
consistent with the findings or opinion of the court.

Ohio Rev. Code § 2506.04. Such options do not include the award of money damages. Nor, for
that matter, do such options include the award of the injunctive relief that Moore seeks,
particularly “[a]n order directing Defendants to . . . identify all appropriate pre-existing
nonconforming use within the jurisdiction of Hiram Township and issue Certificates of
Nonconforming Use for those uses to the subject property owners.”

Nonetheless, Moore’s attempt to isolate his § 1983 claims from the doctrine of res
judicata based on the relief sought fails because, as this court has explained, “a plaintiff pursuing
an administrative appeal in Ohio need not limit [him]self to administrative claims. Rather, [he]
may seek relief under both § 2506 and federal statutory law, as long as [he] follows the proper
procedures.” Carroll v. City of Cleveland, 522 F. App’x 299, 305–06 (6th Cir. 2013) (rejecting
the argument that res judicata is inapplicable because the § 1983 claim sought relief—attorney
fees, declaratory relief, and injunctive relief—all of which was unavailable in a § 2506 appeal)
(emphasis in original).

Different procedures and standards of review govern § 2506 appeals and federal statutory
claims. A court in a § 2506 appeal, unlike in a civil action, “sits in appellate review of the
board’s decision,” Sudan, Inc. v. Chagrin Falls, 577 N.E.2d 1160, 1164 (Ohio Ct. App. 1989),
and is authorized only to determine whether the agency’s action is “unconstitutional, illegal,
arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable,
and probative evidence,” R.C. § 2506.04. Moreover, although both procedures allow the court to
admit and consider evidence, AT&T Commc’ns of Ohio, Inc. v. Lynch, 969 N.E.2d 1166, 1169
(Ohio 2012), a § 2506 appeal restricts, in certain circumstances, the evidence that the court may
admit, see R.C. § 2506.03.
 No. 20-3259 Moore v. Hiram Twp., Ohio Page 12

Despite these procedural differences, the path in Ohio for raising independent claims
alongside a § 2506 appeal is well-paved—even when the joined claims request relief unavailable
under the § 2506 appeal. See, e.g., Castle Manufactured Homes, Inc. v. Tegtmeier, No.
98CA0065, 1999 WL 771605, at *2, 6 (Ohio Ct. App. Sept. 29, 1999) (considering a claim for
money damages pursuant to § 1983 that the plaintiffs set forth in a combined notice of appeal
and complaint following an adverse decision by the BZA); Krol v. Seven Hills City Council, No.
88695, 2007 WL 2269465, at *2 (Ohio Ct. App. Aug. 9, 2007) (noting that the plaintiffs who had
filed a § 2506 appeal in the state trial court were granted leave to amend their complaint to raise
claims under the American with Disabilities Act and the Rehabilitation Act of 1973); Nelson v.
City of Akron, No. 14605, 1990 WL 167357, at *1 (Ohio Ct. App. Oct. 31, 1990) (reviewing a
§ 2506 appeal of an adverse decision by the Akron Civil Service Commission, as well as a claim
for damages for tortious interference with employment relations).

Indeed, the practice of consolidating a § 2506 appeal with a separate complaint for
declaratory and injunctive relief—relief that, like money damages, may not be available in a
§ 2506 appeal—is commonplace. See, e.g., BP Am., Inc. v. Avon City Council, 753 N.E.2d 947,
949 (Ohio Ct. App. 2001); Schropshire v. Englewood, 634 N.E.2d 657, 657 (Ohio Ct. App.
1993); Fox v. Lakewood, 616 N.E.2d 588, 589 (Ohio Ct. App. 1992); Ohio Holding Co. v. City of
Grove City, No. 89AP-213, 1989 WL 155961, at *1 (Ohio Ct. App. Dec. 28, 1989).

Moreover, the Ohio Court of Appeals in D’Amico v. City of Stow, No. 14131, 1990 WL
66894, at *6–7 (Ohio Ct. App. May 16, 1990), specifically addressed whether a party bringing a
§ 2506 appeal must join a related claim—even where the relief requested under the joined claim
is unavailable in a § 2506 appeal—to avoid the risk of being barred from later bringing that
claim in a separate action. The court in D’Amico dismissed the plaintiff’s § 1983 action, ruling
that he could have brought his § 1983 claim for money damages as part of his earlier
consolidated § 2506 appeal and declaratory-judgment action. It therefore concluded that

Gillespie had control over this litigation and it was within his ambit to determine
the strategy to pursue and in which forum he would litigate. Here, where Gillespie
has had a fair opportunity to fully litigate these issues and receive relief, judicial
economy requires an end. We will certainly not permit a relitigation of identical
 No. 20-3259 Moore v. Hiram Twp., Ohio Page 13

issues solely because the remedy has been unsatisfactory. Res judicata bars claims
which were or could have been raised.

Id.

Federal courts interpreting Ohio law have made similar determinations. See Lustgarten v.
Ayres, 1982 U.S. App. LEXIS 12523, at *2–3 (6th Cir. Jan. 6, 1982) (holding that the Ohio
plaintiff’s civil rights claims brought pursuant to § 1983 and § 1985 were barred by res judicata
because those issues could have been presented during the state administrative appeal regarding
her termination); Landberg v. Newburgh Heights Police Dep’t, No. 1:17-CV-298, 2018 WL
2899660, at *5 (N.D. Ohio June 11, 2018) (concluding that, because the plaintiff could have
raised his federal age-discrimination claims alongside a § 2506 appeal in the state trial court, his
claims in federal court were barred by res judicata); Maurer v. Leonard, No. C-2-07-1142, 2008
WL 5076816, at *5 (S.D. Ohio Nov. 21, 2008) (holding that the plaintiff’s § 1983 claims seeking
money damages were precluded by his previous administrative appeal, even though the
administrative appeal at issue did not permit the court to award damages).

In sum, these state-court and federal-court cases establish that the unavailability of the
desired relief in a § 2506 appeal does not create a bypass to the application of res judicata.
Where the plaintiff can join other claims with his § 2506 appeal, and where those joined claims
permit such relief, the strictures of res judicata apply.

The dissent acknowledges that “Ohio courts permit plaintiffs to join a § 1983 claim for
damages with a § 2506 appeal,” but then concludes that “Ohio courts do not require that
plaintiffs join the two actions to avoid claim preclusion.” (Dissent p. 18). To the contrary, Ohio
law provides that if a plaintiff can bring a claim in the first action, he or she is barred from
relitigating that claim in the second action. Grava, 653 N.E.2d at 228–229 (expressly rejecting
the argument that the doctrine of res judicata bars “only those subsequent actions involving the
same legal theory of recovery as a previous action,” holding instead that the “modern application
of the doctrine bars “all subsequent actions based upon any claim arising out of the transaction or
occurrence that was the subject matter of the previous action”). Although, as the dissent points
out, two unpublished Ohio cases have found that res judicata does not apply when a party brings
a money-damages claim following an administrative appeal, neither case contemplated the
 No. 20-3259 Moore v. Hiram Twp., Ohio Page 14

possibility of joining the claim with the administrative appeal. See Walters v. City of Brecksville,
No. 53660, 1988 WL 38111, at *4–5 (Ohio Ct. App. Apr. 21, 1988); Bd. of Cnty. Comm’rs v.
Coppess, No. 06-CA-125, 2008 WL 2390846, at *5–6 (Ohio Ct. App. June 13, 2008).

The same problem exists with the federal district-court cases that Moore relies on. See
Negin v. City of Mentor, 601 F. Supp. 1502, 1504 (N.D. Ohio 1985); Blue Rock Investments v.
City of Xenia, No. 3:17-CV-409, 2020 WL 1443369, at *4 (S.D. Ohio Mar. 25, 2020). These
cases are similarly unpersuasive because they failed to consider what this court made clear in
Carroll v. City of Cleveland, 522 F. App’x 299, 305–06 (6th Cir. 2013), and what the Ohio
courts have long recognized: that plaintiffs may bring claims seeking money damages alongside
their administrative appeal in a state-court action. See id. (holding that if a plaintiff “follows the
proper procedures,” he may seek money damages) (collecting cases). A claimant “splitting his
claim and trying to litigate in two forums . . . r[uns] the risk of being vulnerable to a defense
based on res judicata.” Perry v. Croucher, 165 F.3d 28, 1998 WL 661151, at *6 (6th Cir. 1998)
(table) (internal citation and quotation marks omitted) (holding that the plaintiff could have
pursued his § 1983 claim in the state-court litigation). Moore ran that risk here. Because his
instant claims were litigated, or could have been litigated, in the state-court action, res judicata
applies.

We note that the dissent cites Ohio Kentucky Oil Corp. v. Nolfi, 5 N.E.3d 683, 690 (Ohio
Ct. App. 2013), for the proposition that if “‘formal barriers’ exist against a plaintiff in the first
action, ‘it is unfair to preclude him from a second action in which he can present those phases of
the claim which he was disabled from presenting in the first.’” (Dissent p. 18). But the “formal
barrier” in Nolfi was that a federal court had declined to exercise supplemental jurisdiction over
the defendants’ state-law claims. Id. at 691. The defendants had no control over the federal
court’s decision. Here, Moore had full control over the claims that he could have brought in the
state-court action.

The dissent next argues that the difference in procedures between a § 2506 appeal and a
§ 1983 action supports an exception to the res judicata doctrine because joining the two
proceedings together in the state court would not further a key goal of claim preclusion:
promoting the “efficient use of limited judicial . . . time and resources.” (Dissent p. 23, quoting
 No. 20-3259 Moore v. Hiram Twp., Ohio Page 15

Grava, 653 N.E.2d 226, 230). We find this argument unpersuasive for several reasons. First, the
efficient use of judicial resources is only one goal of claim preclusion. Grava, which barred the
plaintiff from relitigating a claim that he could have brought in a prior action, outlined other
principles underlying claim preclusion in addition to judicial efficiency. These principles
include “certainty in legal relations and individual rights” and “stability to judgments,” id., both
of which are present even where the court uses two different sets of procedures to resolve the
claims before it.

Second, we believe that combining the different procedures in one case actually
conserves judicial resources. As we have already outlined, Moore is raising in his § 1983 claims
the same allegations that he raised his § 2506 Appeal: that the BZA acted outside the scope of
its authority and that the procedures used to issue the certificate were unconstitutional. The court
system surely saves judicial resources when the trial court reviews the same underlying facts and
addresses all related arguments simultaneously, even if the standards of review and the
procedures used to do so vary. As the court noted in D’Amico v. City of Stow, No. 14131, 1990
WL 66894 (Ohio Ct. App. May 16, 1990)—where, as here, the plaintiff attempted to bring a
separate § 1983 action for money damages after pursuing a § 2506 appeal—“judicial economy
requires an end.” Id. at *6. We also see judicial economy at work in Castle Manufactured
Homes, Inc. v. Tegtmeier, No. 98CA0065, 1999 WL 771605 (Ohio Ct. App. Sept. 29, 1999),
where the court, relying on the same set of facts, efficiently addressed the plaintiff’s § 2506
appeal along with the plaintiff’s § 1983 damages claim.

And finally, the dissent extracts its argument from a Wisconsin Supreme Court case,
Hanlon v. Town of Milton, 612 N.W.2d 44 (Wis. 2000), which is readily distinguishable from the
case before us. (Dissent p. 23–24). The statute at issue in Hanlon differs from the statute at
issue here precisely on the issue of procedure. “Additional fact finding by the circuit court is not
permitted” by the Wisconsin statute, and the “court’s scope of review is limited to the record
produced in the proceeding below.” Id. at 49. By contrast, Moore was permitted to offer
additional evidence to the Ohio trial court in his § 2506 Appeal. See SMC, Inc. v. Laudi,
338 N.E.2d 547, 551 (Ohio Ct. App. 1975). In fact, because the BZA was prohibited from ruling
on constitutional issues, the trial court was required to allow Moore to present additional
 No. 20-3259 Moore v. Hiram Twp., Ohio Page 16

evidence supporting his claim that the certificate of nonconforming use, and the procedures used
to issue the certificate, were unconstitutional. See id.; Grossman v. City of Cleveland Heights,
698 N.E.2d 76, 78 (Ohio Ct. App. 1997). Any evidence presented on the constitutional issues in
Moore’s § 2506 Appeal would have undoubtedly also been presented to support his § 1983
claims, had he brought them.

In short, Moore’s failure to combine all of his claims in his state-court action bars his
attempt to piecemeal them here. The Ohio Supreme Court reached the same conclusion in
Grava, 653 N.E.2d at 229: “res judicata requires a plaintiff to present every ground for relief in
the first action, or be forever barred from asserting it.” Grava, 653 N.E.2d at 229.

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district court.
 No. 20-3259 Moore v. Hiram Twp., Ohio Page 17

_________________

DISSENT
_________________

KAREN NELSON MOORE, Circuit Judge, dissenting. After a careful review of Ohio
caselaw, I do not agree with the majority opinion’s conclusion that Ohio precedent requires a
plaintiff to join a 42 U.S.C. § 1983 claim for damages with an Ohio Revised Code § 2506
administrative appeal (“§ 2506 appeal”) to avoid claim preclusion. Although binding precedent
does not squarely address the issue, Ohio courts have considered whether res judicata applies to a
§ 1983 claim filed after a § 2506 appeal and have held that claim preclusion does not bar an Ohio
court from considering a § 1983 claim, to the extent that it seeks damages, even where a court
already considered or could have considered the same or substantially similar theories in a prior
§ 2506 appeal. Because claim preclusion in this context is a question of state law, I would
accord greater weight to these decisions over unpublished Sixth Circuit opinions. Furthermore,
substantive and procedural considerations weigh against requiring the joinder of § 2506 appeals
with § 1983 claims for damages in order for a plaintiff to avoid claim preclusion. Due to these
concerns, I would not hold that claim preclusion bars the district court from considering Moore’s
§ 1983 claim, to the extent that it seeks damages.

Whether claim preclusion bars Moore’s § 1983 claim for damages turns on (1) whether
under Ohio law, Moore could have litigated his § 1983 claim in his § 2506 appeal proceeding;
and (2) whether under Ohio law a plaintiff’s failure to join a § 1983 claim for damages with a
§ 2506 appeal will preclude the plaintiff from bringing the § 1983 claim in a subsequent
proceeding. See Carroll v. City of Cleveland, 522 F. App’x 299, 303 (6th Cir. 2013) (noting that
a federal court must look to Ohio law to determine whether an Ohio state-court judgment bars a
subsequent action).

On the first point, Ohio law clearly limits the kinds of relief a court may grant in a § 2506
appeal. Ohio Rev. Code § 2506.04. In particular, “Section 2506.01 does not empower state
courts to award damages for injuries suffered as a result of erroneous administrative decisions.”
Carroll, 522 F. App’x at 305 (quoting Negin v. City of Mentor, 601 F. Supp. 1502, 1505 (N.D.
 No. 20-3259 Moore v. Hiram Twp., Ohio Page 18

Ohio 1985)); Bd. of Cnty. Commr’s v. Coppess, No. 06-CA-125, 2008 WL 2390846, ¶ 42 (Ohio
Ct. App. June 13, 2008). In contrast, a § 1983 claim is a tort remedy for deprivations of
constitutional rights by government action, and the “basic purpose of a § 1983 damages award
[is] to compensate persons for injuries caused by the deprivation of constitutional rights.” Carey
v. Piphus, 435 U.S. 247, 254 (1978). Consequently, Moore could not have litigated his § 1983
claim for damages within the § 2506 appeal because the state court could not have awarded
Moore § 1983 damages in the § 2506 appeal proceeding.

Moore’s inability to seek § 1983 damages in his first action makes claim preclusion
inapplicable to his circumstances. Under Ohio precedent, claim preclusion does not apply when
a “plaintiff was unable to . . . seek a certain remedy or form of relief in the first action because of
. . . restrictions on [the court’s] authority to entertain . . . demands for multiple remedies or forms
of relief in a single action, and the plaintiff desires in the second action . . . to seek that remedy
or form of relief.” Ohio Kentucky Oil Corp. v. Nolfi, 5 N.E.3d 683, 689 (Ohio Ct. App. 2013)
(quoting Restatement (Second) of Judgments § 26(c)(1) (Am. Law Inst. 1982)). “Thus, if
‘formal barriers’ exist against a plaintiff in the first action, ‘it is unfair to preclude him from a
second action in which he can present those phases of the claim which he was disabled from
presenting in the first.’” Id. at 690 (quoting Restatement (Second) of Judgments § 26 cmt. c).
Because the “formal barriers” of the § 2506 appeal proceeding prevented Moore from litigating
his § 1983 claim for damages within his § 2506 appeal, Ohio caselaw and the principles of claim
preclusion instruct us that the exception to the general rule against claim splitting applies. See
Walters v. City of Brecksville, No. 53660, 1988 WL 38111, at *4–5 (Ohio Ct. App. Apr. 21,
1988).

The majority opinion dismisses this concern because it found that no barriers prevent a
plaintiff from joining a § 2506 appeal with a § 1983 civil action seeking damages. Therefore, it
concludes that Moore’s failure to join his § 1983 claim with his § 2506 appeal precludes Moore
from now asserting his § 1983 claim. Even though Ohio courts permit plaintiffs to join a § 1983
claim for damages with a § 2506 appeal, Ohio courts do not require that plaintiffs join the two
actions to avoid claim preclusion. For example, in Coppess, the Ohio court of appeals reviewed
the defendants’ appeal from summary judgment where the defendants argued, inter alia, that the
 No. 20-3259 Moore v. Hiram Twp., Ohio Page 19

trial court erred in dismissing their counterclaim for money damages on the basis of claim
preclusion grounds due to their prior § 2506 appeal. Coppess, 2008 WL 2390846, ¶ 12. Because
the § 2506 appeal involved, inter alia, whether the county board’s actions were unconstitutional,
the court of appeals concluded that almost all of the defendants’ counterclaims and defenses
regarding the constitutionality of the board’s actions in the civil action “were actually litigated in
the prior R.C. 2506 appeal” or “could have been litigated in the prior R.C. 2506 appeal.” Id.
¶ 37. Consequently, the court of appeals found the defendants’ counterclaims and defenses were
precluded except for one important exception: the defendants’ claim for money damages. Id.
¶¶ 38–39. The court held that “the trial court erred in granting summary judgment on res
judicata grounds on the second counterclaim to the extent that it sought money damages”
because “[d]efendants could not have litigated any claims for money damages in the R.C. 2506
appeal.” Id. ¶ 42. As Coppess makes clear, Ohio courts do not require plaintiffs to join a § 1983
claim, to the extent that they request money damages, with a § 2506 appeal. A plaintiff’s failure
to join the two actions will not preclude the plaintiff from subsequently bringing a § 1983 claim
for damages. See also Walters, 1988 WL 38111, at *4–5 (holding same).

The majority opinion points to D’Amico v. City of Stow, No. 14131, 1990 WL 66894, at
*6–7 (Ohio Ct. App. May 16, 1990), for the proposition that Ohio courts do require parties to
join a § 2506 appeal with a § 1983 claim for damages or risk being barred by claim preclusion.
Because Ohio’s intermediate appellate courts have split on this issue and the Ohio Supreme
Court has not decided this question, we can look to “other sources such as ‘restatements of law,
law-review commentaries, and the rules adopted by other jurisdictions’” to guide our inquiry.
Croce v. New York Times Co., 930 F.3d 787, 792 (6th Cir. 2019) (quoting Mazur v. Young, 507
F.3d 1013, 1016–17 (6th Cir. 2007)). As discussed supra, the Restatement counsels against
applying claim preclusion in this scenario, and as discussed infra, two other relevant sources also
support the Ohio courts’ conclusion that claim preclusion is inapplicable under these narrow
circumstances.

The majority opinion also relies on this court’s unpublished decisions in Carroll and
Perry v. Croucher, No. 97-3033, 1998 WL 661151 (6th Cir. Aug. 31, 1998), to conclude that
plaintiffs may bring § 1983 claims with § 2506 appeals and that the failure to take advantage of
 No. 20-3259 Moore v. Hiram Twp., Ohio Page 20

such opportunity will subject plaintiffs to claim preclusion if they attempt to bring a § 1983
claim after pursuing a § 2506 appeal. Op. at 11, 14. However, in Carroll, the § 2506 appeal
would have afforded the plaintiffs the monetary relief they demanded, i.e., a return of the fine
that they had paid if the court found that the municipality’s action was erroneous. Carroll,
522 F. App’x at 305. The plaintiffs did not seek “damages for injuries suffered as a result of
erroneous administrative decisions,” which a § 2506 appeal proceeding could not award. Negin,
601 F. Supp. at 1505. Consequently, the court’s holding in Carroll that res judicata would apply
when a plaintiff in a § 1983 claim sought “attorney’s fees and declaratory and injunctive relief”
did not address whether res judicata would also apply if a plaintiff properly alleged
compensatory or punitive damages. Carroll, 522 F. App’x at 305–06 (noting that a plaintiff can
obtain both declaratory and injunctive relief in a § 2506 appeal; collecting cases where plaintiffs
pursued both a § 2506 appeal and federal statutory claims seeking injunctive or declaratory
relief). Similarly, this court’s decision in Perry is also distinguishable. In Perry, the court
affirmed the dismissal of a § 1983 claim on res judicata grounds and noted that the Ohio court
“could have heard Perry’s [§ 1983] claim” with his § 2506 appeal. Id. at *4–6. However, the
court never addressed whether Perry sought damages in connection with his § 1983 claim and
whether that would have impacted its analysis. In contrast, the Ohio courts’ opinions squarely
address the issue. Thus, I consider them to be the more pertinent authority for the case at hand.

Moreover, although I agree that Ohio caselaw makes clear that plaintiffs can join a
§ 1983 claim for damages with a § 2506 appeal, it is important to note that Ohio courts consider
a § 2506 appeal proceeding to be a separate and distinct proceeding from a § 1983 civil action.
See Bolek v. Chardon Bd. of Educ., No. 1014, 1982 WL 5670, at *1 (Ohio Ct. App. Oct. 8, 1982)
(per curiam) (“[§ 2506 a]ppeals and original actions are, by their appellation, not similar legal
proceedings.”). When considering a § 2506 appeal, “a court of common pleas . . . ‘performs an
appellate function,’” AT&T Commc’ns of Ohio, Inc. v. Lynch, 969 N.E.2d 1166, 1170 (Ohio
2012) (quoting Dvorak v. Mun. Civ. Serv. Comm’n of Athens, 346 N.E.2d 157, 160 (Ohio 1976)),
and many of the procedural rules and motions that apply to civil actions do not apply to the
proceeding. See Lupo v. Columbus Board of Zoning Adjustment, No. 13AP-1063, 2014 WL
2931893, ¶¶ 18–21 (Ohio Ct. App. June 26, 2014). Additionally, a § 2506 appeal “does not
contemplate the filing of a complaint, but a notice of appeal.” Bolek, 1982 WL 5670, at *1.
 No. 20-3259 Moore v. Hiram Twp., Ohio Page 21

Thus, for an Ohio court properly to join the two proceedings, a plaintiff must follow the correct
procedure to initiate both proceedings. Compare Castle Manufactured Homes, Inc. v. Tegtmeier,
No. 98CA0065, 1999 WL 771605, at *2, 6 (Ohio Ct. App. Sept. 29, 1999) (considering a claim
for damages pursuant to § 1983 that the plaintiffs set forth in a combined notice of appeal and
complaint following an adverse decision by the BZA), with Shewmaker v. Clay Twp. Trs., No.
98CA29, 1999 WL 482620, at *1 (Ohio Ct. App. June 30, 1999) (holding that a plaintiff “cannot
initiate a Section 1983 action in a notice of appeal filed with a common pleas court; she must file
a complaint and comply with Civ.R.6 concerning pleadings and service of process”). And even
when an Ohio court joins the two proceedings, the court “proceed[s] separately as to each.”
Bolek, 1982 WL 5670, at *1; see, e.g., Castle, 1999 WL 771605, at *2–3; Nelson v. City of
Akron, No. 14605, 1990 WL 167357, at *1 (Ohio Ct. App. Oct. 31, 1990). Ohio courts clearly
treat them as separate proceedings that require different procedures.

Furthermore, the special nature and limits of a § 2506 appeal proceeding make it distinct
from the broad federal remedy that is a § 1983 civil action and support a denial of claim
preclusion under these circumstances. See 18 Charles Alan Wright, Arthur R. Miller, Edward A.
Cooper, Federal Practice and Procedure § 4412, p. 307 & n.16 (3d ed. 2016) (discussing claim
preclusion issues in the context of special forms of state-court proceedings; “[c]laim preclusion
is readily denied when the remedies sought in the second action could not have been sought in
the first action, so long as there was good reason to maintain the first action in a court or in a
form of proceeding that could not afford full relief.”). Ohio courts have long noted the special
nature of a § 2506 appeal proceeding. Under Ohio law, a plaintiff can challenge the final order
of a board of zoning appeals only by filing a § 2506 appeal.1 City of Cleveland v. Sun Oil Co.,
577 N.E.2d 431, 433 (Ohio Ct. App. 1989). “Absent an appeal to the court of common pleas, the
board’s decision becomes a final judgment on the merits, erroneous or not, and is res judicata to
identical future applications.” Id.

1However, a plaintiff may bring a § 1983 claim in federal court without challenging the order through a
§ 2506 appeal because “there is no state judicial exhaustion requirement in § 1983 cases.” Loudermill v. Cleveland
Bd. of Educ., 721 F.2d 550, 555 (6th Cir. 1983), aff'd and remanded, 470 U.S. 532 (1985).
 No. 20-3259 Moore v. Hiram Twp., Ohio Page 22

The Ohio Supreme Court has also discussed the unique limitations of a § 2506 appeal
that distinguish it from a civil action:

We recognize that under R.C. 2506.03, authorizing the courts of common pleas to
hold the hearing on appeal “as in the trial of a civil action,” the court may admit
and consider new evidence, and the court must weigh evidence on the whole
record.
However, while an appeal under R.C. 2506.01 resembles a de novo proceeding, it
is not de novo. There are limits to a court of common pleas review of the
administrative body’s decision. For example, in weighing evidence, the court
may not blatantly substitute its judgment for that of the agency, especially in areas
of administrative expertise. Further, new evidence is admitted in an R.C. Chapter
2506 appeal only under certain circumstances . . . .
In reviewing the administrative body’s decision, a court of common pleas is
authorized to determine whether the agency’s decision is “unconstitutional,
illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance
of substantial, reliable, and probative evidence.” R.C. 2506.04. The court will
then “affirm, reverse, vacate, or modify the order * * *, or remand” the underlying
administrative decision under that standard of review specified in the statute.
R.C. 2506.04. These standards that a court of common pleas must employ and the
dispositions that it must reach are more limited than relief that could be awarded
pursuant to a trial, and therefore, the administrative appeal is more akin to an
appeal than a trial.

Lynch, 969 N.E.2d at 1169–70 (internal quotations and citations omitted); see also Klein v.
Hamilton Cnty. Bd. of Zoning Appeals, 716 N.E.2d 268, 271 (Ohio Ct. App. June 26, 1998)
(“The scope of judicial review of the zoning board’s decision [under § 2506], furthermore, is
very limited and unusually deferential. The board’s decision on such matters is presumed to be
valid, and the burden is upon the party contesting the board’s determination to prove
otherwise.”).

In contrast, a civil action involving a § 1983 claim has fewer procedural and substantive
limitations. Civil actions involve discovery, the presentation of evidence, and other procedures
not guaranteed or allowed in § 2506 appeals. Unlike the limited authority of the court of
common pleas in a § 2506 proceeding, when presiding over a civil action the court of common
pleas hears the case de novo and has the authority to “weigh conflicting evidence and determine
issues of fact” in a manner it is not authorized to do in a § 2506 appeal. Manning v. Straka,
189 N.E.2d. 651, 653 (Ohio Ct. App. 1962). A plaintiff also has a right to demand a jury trial in
 No. 20-3259 Moore v. Hiram Twp., Ohio Page 23

a § 1983 cause of action.2 Additionally, a plaintiff has only thirty days after receiving a final
determination from an administrative agency to file a § 2506 appeal. Ohio Rev. Code § 2505.07.
However, in Ohio, a two-year statute of limitations applies to § 1983 claims. Browning v.
Pendleton, 869 F.2d 989, 990 (6th Cir. 1989) (en banc). If Ohio law required a plaintiff to join
§ 1983 claims for money damages with a § 2506 appeal or face claim preclusion, it would in
essence shrink the statute of limitations for a § 1983 claim to the thirty-day period for a § 2506
appeal. Claim preclusion in this context would frustrate the policies furthered by § 1983. See
Felder v. Casey, 487 U.S. 131, 139–40 (1988) (noting that in the § 1983 context the Supreme
Court has “disapproved the adoption of state statutes of limitation that provide only a truncated
period of time within which to file suit, because such statutes inadequately accommodate the
complexities of federal civil rights litigation and are thus inconsistent with Congress’
compensatory aims” and instead has “directed the lower federal courts in § 1983 cases to borrow
the state-law limitations period for personal injury claims”).

The issues discussed above add clarity to the Ohio courts’ decision not to require a
plaintiff to join a § 1983 claim for damages with a § 2506 appeal in order to avoid claim
preclusion, even though the Ohio courts permit a plaintiff to join such claims. Both substantive
and procedural considerations counsel against requiring joinder in this context. Due to the
differences in substance and procedure, joining a § 1983 cause of action to a § 2506 appeal may
lengthen and complicate the court’s review of the more limited § 2506 appeal, especially because
courts and parties may attempt to apply the wrong standards and procedures to the § 2506
appeal. Consequently, joining these two proceedings together does not “promote[] the efficient
use of limited judicial . . . time and resources,” Grava v. Parkman Twp., 653 N.E.2d 226, 230
(Ohio 1995), and thus does not further a key objective of claim preclusion.

Notably, in Hanlon v. Town of Milton, the Wisconsin Supreme Court reached the same
conclusion when considering very similar circumstances. 612 N.W.2d 44 (Wis. 2000). In
Hanlon, the Seventh Circuit certified for determination by the Wisconsin Supreme Court a
question of law concerning, inter alia, whether under Wisconsin law the failure of a litigant to
join the review of an administrative decision with a § 1983 claim for damages that arose from the
2Moore demanded a jury trial in his complaint in the federal district court. R. 1 (Complaint) (Page ID #13).
 No. 20-3259 Moore v. Hiram Twp., Ohio Page 24

same transaction results in claim preclusion. Id. at 47. Like Ohio, Wisconsin law provides for a
limited review of a municipal administrative decision by a trial court. Id. at 47–48. The review
takes place in what Wisconsin calls a “certiorari proceeding,” and, like a § 2506 appeal
proceeding, a certiorari proceeding provides a litigant with limited forms of relief, which do not
include monetary damages. Id. at 48. In keeping with the “formal barrier” exception discussed
in Section 26 of the Restatement, see Restatement (Second) of Judgments § 26 cmt. c, the
Wisconsin Supreme Court held that “[b]ecause the issue of monetary damages could not have
been litigated in the [certiorari] proceeding,” the litigant’s § 1983 claim for damages “could not
have been brought by him within his [certiorari proceeding].” Hanlon, 612 N.W.2d at 48. Thus,
claim preclusion did not apply.

The Wisconsin Supreme Court also addressed the reasoning of the majority here that a
litigant’s failure to join a § 1983 claim for damages with a limited administrative appeal
proceeding should result in claim preclusion barring a federal court from considering the § 1983
claim for damages. Id. The Wisconsin Supreme Court noted that a plaintiff could join a
certiorari proceeding with a § 1983 civil action. Id. at 50. Nevertheless, it held that a failure to
join the claims did not bar a plaintiff from pursuing a § 1983 claim for damages even after a
plaintiff litigates a certiorari proceeding in which the plaintiff raises the same arguments. Id.
The court based its conclusions on issues identical to those before us, i.e., the limited nature of
the certiorari proceeding as compared to a § 1983 civil action, including the differences in the
statutes of limitation for both claims. Id. at 48–50.

I find the Wisconsin Supreme Court’s unanimous decision to be very persuasive, and it
bolsters the Ohio courts’ conclusion that claim preclusion is inappropriate in this context.
A § 2506 appeal “and a § 1983 action do not fit together within the fundamental structure of
bringing one judicial action. The objectives of claim preclusion, therefore, cannot be attained.”
Id. at 49. Thus, I believe that this court should conclude that claim preclusion does not bar
Moore’s § 1983 claim for damages. Respectfully, I dissent.