[76] Section 2947.14 was not complied with in this case because Alkire did not receive a hearing to determine his ability to pay prior to being incarcerated. Of course, violation of a state statute does not automatically create a cause of action under § 1983 for the deprivation of a constitutionally protected right. See Harrill v. Blount County, Tenn., 55 F.3d 1123, 1125 (6th Cir. 1995) ("A state statute cannot 'create' a federal constitutional right."). However, the failure to comply with § 2947.14 by not determining ability to pay also violates the constitutional prohibition against incarcerating an indigent defendant for his failure to pay a debt.

[77] We therefore reverse the district court's dismissal of these two claims, for there are genuine issues of material fact as to whether Alkire's Thirteenth Amendment right not to be imprisoned for a civil debt and Fourteenth Amendment right not to lose his liberty due to indigency were violated pursuant to an official policy or custom.

[78] C. Whether the district court erred in finding no violation of Alkire's due process and equal protection rights when defendants failed to allow credit toward fines and costs for time served.

[79] Alkire next complains that the Holmes County Court, through Judge Irving and the Clerk's Office, violated his Fourteenth Amendment right to due process when it failed to enter a credit against the fines and costs owed based on the time he served as required under state law. As noted previously, Alkire must show first that he was deprived of a constitutional right and, second, that such deprivation was caused by a person acting under color of state law. Brock, 94 F.3d at 244.

[80] Under Ohio law in effect at the time of Alkire's incarceration, if a defendant were imprisoned for refusing to pay a fine when he or she had the capability to do so, the defendant was to "receive a credit upon the fine at the rate of thirty dollars per day or fraction of a day." Ohio Rev. Code Ann. § 2947.14(D). Of course, Alkire claims that he was indigent and did not refuse to pay, which would make this provision inapplicable. However, given his claim that he was imprisoned under § 2947.14, it does seem that Alkire was entitled under state law to receive thirty dollars per day credit toward his debt.

[81] In this case, Holmes County Court had a policy of giving credit against fines owed, although not against court costs owed, based on work performed while in jail. A prisoner was to be credited at the then-in-effect minimum wage for each hour of work performed. While this policy violates Ohio law, there is no constitutional requirement that a particular dollar amount of credit be given for jail time served. This claim, therefore, fails to state a constitutional violation. Accordingly, we affirm the district court's grant of summary judgment to defendants on this issue.

[82] D. Whether the district court abused its discretion in refusing to certify a class.

[83] Alkire argues that the district court abused its discretion by denying his motion for class certification on damages and restitution. There are four prerequisites to a class action found in Federal Rule of Civil Procedure 23(a):

[84] One or more members of a class may sue or be sued as representative parties on behalf of all only if: (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

[85] Although Rule 23(a)(2) refers to common questions of law or fact, in the plural, there need only be one question common to the class - though that question must be a "common issue the resolution of which will advance the litigation." Sprague, 133 F.3d at 397. See also Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997). Ultimately, the class may only be certified if, "after a rigorous analysis," the district court is satisfied that these prerequisites have been met. Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982). The burden is on the plaintiff "to establish his right" to class certification. Senter v. Gen. Motors Corp., 532 F.2d 511, 522 (6th Cir. 1976).

[86] If Alkire can satisfy the four prerequisites for class certification found in Rule 23(a), then he must show that, in addition, he satisfies one the three types of class actions found in Federal Rule of Civil Procedure 23(b). Only two of the three types found in Rule 23(b) are relevant here, types II and III. A type II class action requires that the plaintiff seek primarily injunctive or declaratory relief. Fed. R. Civ. P. 23(b)(2). Type III requires that "the court find[] that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Fed. R. Civ. P. 23(b)(3).

[87] The district court's denial of Alkire's motion for class certification survives abuse of discretion review. On the first prerequisite, numerosity, the district court found it was "highly improbable" that Alkire could make such a showing. While Alkire postulates that there are hundreds of potential plaintiffs, defendants' search of jail records produced only nine potential class members who were incarcerated due to failure to pay a civil debt or court costs. The district court did not abuse its discretion by believing defendants' asserted number of class members over Alkire's speculative one.

[88] The second prerequisite of Rule 23(a) requires common questions of law and fact among the class, and the third prerequisite looks to the typicality of the claims or defenses of the representative party. The district court found that the potential class members are too diverse to warrant class treatment, that the "varying reasons for the arrests, varying lengths of stay in jail, varying financial situations, varying reasons for contempt adjudications . . . would impact on the amount of damages any individual class member might be entitled to." The district court expressly found that Alkire's proposed class lacks the "common questions of fact" required under the second prong and the "typicality" required under the third prong of Rule 23(a).*fn13

[89] Alkire argues that the district court abused its discretion because only one common question of law or fact is required. He points to a common question of fact, "the existence and routine application of the illegal policies ultimately proven by the [defendants' own] depositions," and common questions of law, including issues one through four presented in this appeal.

[90] Our review is for abuse of discretion, and the district court did not abuse its discretion in applying the class action prerequisites. There are enormous variations in the factual and legal backgrounds surrounding the hundreds of cases Alkire asserts might qualify for class membership. A class action cannot be certified unless the resolution of the common issues "will advance the litigation." Sprague, 133 F.3d at 397. The district court neither applied the wrong legal standard in examining these two elements, nor did it misapply the correct legal standard. The court correctly placed the burden of demonstrating his right to class certification and concluded that Alkire did not meet his burden. Such a conclusion was not an abuse of discretion.

[91] Even if we agreed with Alkire that the district court abused its discretion in applying the prerequisites, we would still not find in his favor because he has not satisfied either the type II or III requirements for maintaining a class action. Alkire, in his initial motion for class certification, asserted his right to class certification under a type II class action only. As the district court noted, though, the stipulated settlement regarding declaratory and injunctive relief demonstrates that Alkire has "obtained all the relief future potential plaintiffs would want or need." Alkire even agrees with the district court's conclusion on this point, stating the he does not dispute the district court's holding "as to a class of future members . . . . The stipulations do provide sufficient protection for their interests." Thus, Alkire cannot maintain a type II class action.

[92] Alkire's quarrel with the district court, then, is its failure to certify a type III class action, where monetary damages predominate. However, he ignores the requirements of a type III class action, which include a showing that the common questions predominate over the individual ones and that the class action is a superior method for adjudication. Consequently, Alkire's argument that only one common question is necessary for class certification does not apply under the type III analysis. The district court's finding that numerous factual issues, such as varying reasons for arrest, varying lengths of stay, and varying financial situations "do not warrant class treatment" is even stronger when reviewed under the type III requirements. Accordingly, we affirm the district court's denial of Alkire's motion for class certification.

[93] V. CONCLUSION

[94] For the foregoing reasons, we REVERSE the district court with respect to its grant of defendants' summary judgment motion as to Alkire's first and second claims and AFFIRM the district court with respect to its grant of defendants' summary judgment motion on the third claim. We also AFFIRM the district court's denial of Alkire's motion for class certification. We REMAND to the district court for further consideration in light of this opinion.


Opinion Footnotes

[95] *fn1 The Honorable Arthur J. Tarnow, United States District Judge for the Eastern District of Michigan, sitting by designation.

[96] *fn2 There is no explanation in the record for the discrepancy between $620 and $635.

[97] *fn3 The date stamp indicates that the letter was filed on September 26, 1995, which would be before the court sent the first show cause letter. Alkire argues that this demonstrates he was being proactive about his inability to meet the payment schedule. However, the letter itself is dated November 22, 1995. In addition, the letter refers to "your letter last week," apparently referencing the Judge's show cause letter, which was signed on November 15, 1995. Thus, we will assume that the date stamp was inaccurate and the correct date is November 22, 1995, as listed in the letter.

[98] *fn4 Again there is no explanation in the record for the discrepancy between this amount and the $295.22 amount.

[99] *fn5 Consequently, it is not clear whether the settlement regarding prospective relief is in effect, or whether Alkire is still seeking declaratory and injunctive relief. Because the district court assumed he was not, and the parties did not address declaratory and injunctive relief on appeal, we will assume that the settlement resolved the prospective portions of the case.

[100] *fn6 Alkire is appealing both the grant of defendants' summary judgment motions and the denial of his summary judgment motion. The denial of summary judgment is usually considered an interlocutory order, not a final judgment. Phelps v. Coy, 286 F.3d 295, 298 (6th Cir. 2002) (citing Johnson v. Jones, 515 U.S. 304, 309 (1995)). Thus, under 28 U.S.C. § 1291 (1994), which grants appellate jurisdiction over final judgments only, this Court usually does not accept appeals where summary judgment was denied. Id. "However, when the appeal from a denial of summary judgment is presented together with an appeal from a grant of summary judgment, we have jurisdiction to review the appropriateness of the district court's denial." Thomas v. United States, 166 F.3d 825, 828 (6th Cir. 1999). The denial of summary judgment based purely on legal grounds is reviewed de novo. Id.

[101] *fn7 Although Alkire did not specifically state that he was appealing the grant of summary judgment to the Holmes County Court, his briefs discuss at great length the wrongdoings of the Holmes County Court Clerk's Office, which is part of the Holmes County Court. Alkire seeks to phrase these wrongdoings as the wrongdoings of Holmes County, but it is clear that the Clerk's Office (as well as the Judge) are agents of the Holmes County Court. Since Alkire discussed his claims against the Clerk's Office in his appellate briefs and since the Clerk's Office is part of the County Court, we hold that Alkire has properly appealed his claims against the County Court, and we will consider them in full.

[102] *fn8 A related question that the district court may need to consider is whether the Holmes County Court is a "person" for purposes of § 1983. Although we held in Foster that a state court was not a person for purposes of § 1983, Foster v. Walsh, 864 F.2d 416, 418 (6th Cir. 1988), we believe that this holding has also been undermined by the recent Supreme Court decisions addressing sovereign immunity that were discussed above-as the issues of sovereign immunity and personhood under § 1983 are conceptually related (as we discuss below). Of course, insofar as Holmes County Court is an arm of the State of Ohio entitled to sovereign immunity, it is not a "person" for purposes of § 1983. See Will v. Mich. Dep't of State Police, 491 U.S. 58 (1989). However, if Holmes County Court is not entitled to sovereign immunity, it will be necessary on remand to undertake an independent determination of whether Holmes County Court is a "person" under § 1983. The Supreme Court's holding in Will implicitly suggests that those entities that are not arms of the State should generally be considered "persons" for purposes of § 1983. Our sister circuits have disagreed over the extent to which the analyses of sovereign immunity and whether an entity is a "person" for § 1983 purposes are co-extensive. Compare Harter v. Vernon, 101 F.3d 334, 338 n.1 (4th Cir. 1996) ("If an official or entity is not immune from suit under the Eleventh Amendment that official or entity is a 'person' subject to suit under § 1983."), cert. denied, 521 U.S. 1120 (1997), with Indep. Enters. Inc. v. Pittsburgh Water & Sewer Auth., 103 F.3d 1165, 1173 (3d Cir. 1997) (stating that "Monell and Will establish that the most important inquiry in determining whether a governmental entity is a 'person' within the meaning of § 1983 is whether the entity is an 'arm[] of the State' for Eleventh Amendment purposes" (some internal quotation marks omitted)). We find it prudent to undertake an analysis similar to the Supreme Court's analysis in Will to determine whether an entity such as the Holmes County Court is "person" under § 1983. In Will, in determining that a State is not a "person" for purposes of § 1983, the Supreme Court looked at: (1) the language of § 1983 as well as its legislative history and purpose; (2) the common usage of the term "person"; and (3) whether the entity in question, there a State, was entitled to common law immunities, such as sovereign immunity. 491 U.S. at 61-70. The scope of the Eleventh Amendment is an important, although perhaps not the only, consideration. Id. at 66-67. Should the need to decide this issue arise, we leave the analysis to the sound judgment of the district court for an initial determination.

[103] *fn9 While Alkire asserted that the documents were included in the joint appendix on appeal, they were not. Therefore, the Court ordered the district court record, and the documents were contained within an evidentiary appendix attached to plaintiff's motion for class certification filed in the district court.

[104] *fn10 To the extent Alkire is claiming the policies or customs in question are attributable to the Holmes County Clerk's Office, we reject Alkire's claim. There is no suggestion in the record that either Judge Irving or the Holmes County Clerk's Office had any involvement in whether a detainee was held over the weekend. All of the testimony in the record supports Alkire's assertion that Sheriff Zimmerly, and therefore Holmes County, was the party responsible for the policy to detain defendants over weekends.

[105] *fn11 The Court notes that, while neither party raised the issue, Alkire's § 1983 suit could be barred under Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court held that: [T]o recover damages for [an] allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. Heck, 512 U.S. at 486-87 (1994) (footnote omitted). Thus, to the extent that Alkire is seeking monetary damages that would invalidate the underlying conviction, his suit is barred. As for Alkire's first claim, Heck does not apply. He is not challenging the underlying conviction for driving while intoxicated. Rather, he is seeking monetary damages for a constitutional violation unrelated to his ultimate conviction of the substantive offense. Alkire's second claim is more problematic. It may implicate Heck because a finding that Alkire's Thirteenth and Fourteenth amendment rights were violated may necessarily imply that his conviction for contempt was invalid. However, it would likely not implicate his conviction for driving while intoxicated, which is the offense underlying this entire proceeding. As for Alkire's third claim, we affirm the district court's dismissal, so there is no need to discuss the applicability of Heck. We decline to rule on whether Heck applies at this time because the parties have not had a chance to submit briefs on the issue. Instead, the district court may consider the applicability of Heck upon remand.

[106] *fn12 Importantly, before a finding of criminal contempt can be imposed, a defendant is entitled by to notice of the charges and an opportunity to be heard and present a defense. Consol. Rail Corp. v. Yashinsky, 170 F.3d 591, 596 (6th Cir. 1999). It is not clear that these due process requirements were met in this case. However, Alkire does not challenge the procedures used at the contempt hearings as a violation of his due process rights.

[107] *fn13 The fourth element of Rule 23(a), whether the representative parties will fairly and protect the interests of the class, is not addressed by the district court or in the briefs. Therefore, we will also not address it.