Probable Cause Does Not Alone Establish Ohio Employee Immunity Against an Abuse-of-Process Claim

Case: F. Dyann McDowell v. Bd. of Trs. for Perry Twp.
Court: United States Court of Appeals for the Sixth Circuit
Date: October 26, 2026
Opinion by: Circuit Judge Bloomekatz, joined by Circuit Judges Clay and Nalbandian
Disposition: Denial of summary judgment on statutory immunity affirmed; case remanded.

Central principle: Probable cause and legal authority to initiate criminal proceedings do not, by themselves, establish immunity under Ohio Revised Code § 2744.03(A)(6)(b). Evidence that an official used otherwise lawful discretion for a malicious or dishonest purpose can create a factual question requiring further proceedings.

Precedential qualification: The opinion is designated “NOT RECOMMENDED FOR PUBLICATION.” Its significance lies principally in its application and clarification of existing immunity doctrine, rather than the announcement of a new, binding published rule.

1. Introduction

This appeal concerns the boundary between a public employee’s authority to enforce criminal law and Ohio’s refusal to immunize conduct undertaken with malice or bad faith. Although the broader litigation involved Perry Township and multiple claims, the appellate dispute was narrow: whether former police chief Michael T. Pomesky was entitled to statutory immunity from an abuse-of-process claim brought by human-resources consultant F. Dyann McDowell.

Perry Township retained McDowell and her company, Training Marbles Inc., to examine its human-resources practices, including complaints about Pomesky’s management of the police department. According to the evidence viewed favorably to McDowell, her investigation uncovered retaliatory behavior and prompted conduct suggesting that Pomesky was monitoring employees who cooperated with her.

After Pomesky indicated that he knew where she lived, McDowell falsely told him that she had received notification that someone had run a report on her through the Law Enforcement Automated Data Systems, or LEADS. She hoped the statement would discourage retaliation. Pomesky investigated, discovered no such report, and subsequently pursued misdemeanor charges against her.

The important question was not simply whether those charges had probable cause. It was whether the surrounding evidence permitted a jury to find that Pomesky used the charging and arrest process dishonestly to undermine McDowell’s investigation and protect his employment.

2. Background and Procedural History

Several features of the record supported McDowell’s account of retaliatory motivation:

  • Township employees described Pomesky as vindictive and expressed concern about retaliation for participating in the audit.
  • Pomesky positioned himself where he could observe employees arriving for interviews and later investigated the employee who alerted McDowell to his presence.
  • McDowell’s draft report discussed complaints against Pomesky and possible responses, including discipline, discharge, and resignation.
  • After discovering that McDowell’s LEADS statement was false, Pomesky obtained prosecutorial approval for misdemeanor falsification and obstruction-of-official-business charges and secured an arrest warrant.
  • Seeking a warrant rather than a summons departed from the department’s established practice. Among approximately 15,000 misdemeanors over five years, Township representatives could identify no misdemeanor falsification case handled through a warrant rather than a summons.
  • Pomesky expanded the warrant’s pickup radius beyond the geographic limits specified in departmental policy, enabling pickup from Franklin County, several counties away.

Pomesky left McDowell a voicemail that did not identify the charges, a summons, or the warrant. When she had not returned the call by the following morning, he requested execution of the warrant through the Reynoldsburg Police Department. McDowell voluntarily surrendered and spent 36 hours in custody. The charges were later dismissed. The Township placed Pomesky on administrative leave, at least partly because of the arrest decision, and subsequently discharged him.

The district court granted summary judgment on some claims but allowed the abuse-of-process claim against Pomesky to proceed. It found a genuine factual dispute over whether he had used legal process for an ulterior purpose and whether his conduct fell within Ohio’s malice-or-bad-faith exception to employee immunity. Pomesky appealed only the immunity ruling.

3. Summary of the Opinion

The Sixth Circuit affirmed. Applying the summary-judgment standard, it concluded that a reasonable jury could find that Pomesky acted with malicious purpose or in bad faith. His unusual pursuit of an arrest warrant, departure from departmental geographic restrictions, and apparent personal interest in frustrating McDowell’s investigation supplied more than a bare allegation of hostility.

The court rejected two principal arguments:

  1. Probable cause necessarily establishes immunity. It does not. Proper initiation of proceedings with probable cause is itself an element of an Ohio abuse-of-process claim.
  2. Legally authorized conduct necessarily excludes malice or bad faith. It does not. Whether conduct satisfies the elements of abuse of process is distinct from whether an employee acted with the culpable state of mind specified in the immunity exception.

The court did not decide that Pomesky committed abuse of process or conclusively establish his state of mind. It held that the evidence, construed in McDowell’s favor, prevented summary judgment on immunity.

4. Analysis

A. Appellate Jurisdiction and the Limited Question Presented

Ordinarily, a denial of summary judgment is not immediately appealable because it does not end the litigation. Immunity presents a limited exception: if immunity protects an official from having to undergo litigation, postponing review until after trial can undermine that protection.

The court could therefore review whether Pomesky was entitled to immunity as a matter of law on the facts construed favorably to McDowell. It could not use this interlocutory appeal to resolve contested evidence or make credibility findings.

The opinion also carefully separated immunity from the underlying tort. Although appellate consideration of a state-law claim’s merits may sometimes be available when those merits are inextricably intertwined with immunity, Pomesky did not challenge the district court’s merits ruling here. The panel consequently expressed no view on whether McDowell ultimately could establish abuse of process.

B. Precedents Cited and Their Influence

Summary-Judgment Review and Interlocutory Jurisdiction

King v. Steward Trumbull Mem'l Hosp., Inc., 30 F.4th 551, 559 (6th Cir. 2022)

This decision supplied the requirement to view the evidence in the light most favorable to the nonmoving party. Accordingly, the panel’s factual account was a summary-judgment account, not a set of findings establishing that McDowell’s interpretation was ultimately correct.

Barry v. O'Grady, 895 F.3d 440, 443 (6th Cir. 2018)

The court cited this case for the ordinary rule that denial of summary judgment is not a final, appealable decision. It established the procedural baseline from which the immunity exception operates.

Heeter v. Bowers, 99 F.4th 900, 908, 921 (6th Cir. 2024)

This precedent supported immediate review of the immunity question, limited that review to legal issues, and supplied de novo review. The panel therefore independently assessed whether the plaintiff-favorable version of events could defeat immunity without resolving factual disputes.

Adams v. Blount County, 946 F.3d 940, 948 (6th Cir. 2020)

Cited through Heeter v. Bowers, this authority reinforced the restriction of interlocutory immunity jurisdiction to issues of law. That restriction prevented the appeal from becoming a retrial of disputed events.

Frenchko v. Monroe, 160 F.4th 784, 804–05 (6th Cir. 2025)

This case served two roles. Procedurally, it recognized that an underlying state-law claim may sometimes be reviewed when inextricably intertwined with statutory immunity. Substantively, it supplied the definition of bad faith applied here. The panel used its jurisdictional principle to explain the possible scope of review, while declining to examine an unpresented merits challenge.

Ohio Employee Immunity and Culpable Intent

Sabo v. City of Mentor, 657 F.3d 332, 337 (6th Cir. 2011)

This decision established the starting presumption that municipal employees enjoy immunity. McDowell therefore needed evidence bringing Pomesky’s conduct within a statutory exception, rather than merely pointing to an unfavorable outcome.

Radvansky v. City of Olmsted Falls, 395 F.3d 291, 315 n.15 (6th Cir. 2005)

The court drew its definition of malice from this case: a willful and intentional design to injure, or an intention or desire to harm another, usually seriously, through unlawful or unjustified conduct. This definition focused attention on whether the arrest process was used to harm McDowell rather than merely enforce the law.

Rural Bldg. of Cincinnati, LLC v. Mercer, 96 N.E.3d 882, 888 (Ohio Ct. App. 2017)

Quoted through Frenchko v. Monroe, this Ohio authority defined bad faith through dishonest purpose, conscious wrongdoing, or breach of a known duty motivated by an ulterior purpose or ill will. It supported the conclusion that otherwise available official discretion may be exercised dishonestly.

Post v. City of Munroe Falls, 861 F. App'x 69, 79 (6th Cir. 2021), and Chesher v. Neyer, 477 F.3d 784, 800, 802 (6th Cir. 2007)

These authorities supported the proposition that intent sufficient to overcome employee immunity is typically a jury question. They did not eliminate summary judgment in immunity cases; they explained why a court should not resolve competing inferences about intent when sufficient supporting evidence exists.

Abuse of Process and the Distinction Between Liability and Immunity

Yaklevich v. Kemp, Schaeffer & Rowe Co., 626 N.E.2d 115, 118 & n.2 (Ohio 1994)

This Ohio Supreme Court decision was central to the appeal. It identifies proper initiation of proceedings with probable cause as the first element of abuse of process. It also requires that the proceeding be perverted to attempt an ulterior purpose for which it was not designed.

Pomesky relied on its footnote explaining that merely carrying process to its authorized conclusion does not establish abuse-of-process liability, even when accompanied by bad intentions. The Sixth Circuit did not reject that principle. Instead, it explained that the footnote concerns the tort’s merits, whereas § 2744.03(A)(6)(b) concerns the official’s culpable state of mind. The two inquiries are not interchangeable.

Buehner v. City of Cleveland, 788 F. Supp. 3d 827, 914, 921–22 (N.D. Ohio 2025)

This decision illustrated that distinction. As described by the panel, allegations of fabricated evidence sufficiently supported bad faith or malice for immunity purposes, yet failed to establish abuse of process without an ulterior purpose beyond obtaining a conviction. Thus, defeating immunity does not necessarily establish the underlying tort.

Authorities Distinguished on Their Facts

Simon v. Mitchell, 85 N.E.3d 470, 473 (Ohio Ct. App. 2017)

In this case, a history of disagreements with an officer was insufficient to defeat immunity. McDowell’s evidence went further: it connected an alleged retaliatory objective with an investigation threatening Pomesky’s employment and unusually severe procedural choices.

Day v. DeLong, 358 F. Supp. 3d 687, 708 (S.D. Ohio 2019)

The officer there had no prior contact with the plaintiff, and the record lacked evidence of a dishonest purpose behind the arrest. Here, the parties’ extensive prior dealings and the employment-related stakes supported an inference absent from that case.

McDowell v. Bd. of Trustees for Perry Twp., No. 2:23-cv-02860, 2025 WL 3763823 (S.D. Ohio Dec. 30, 2025)

This was the decision under review, rather than an independent appellate precedent. Its finding of a genuine dispute concerning an ulterior purpose and dishonest motivation framed the appeal. The Sixth Circuit affirmed the immunity ruling without adopting a final determination of tort liability.

C. Why Probable Cause Did Not Resolve Immunity

The court’s reasoning followed from the nature of abuse of process. Unlike a claim directed at initiating proceedings without probable cause, abuse of process addresses misuse of proceedings that were properly initiated.

Consequently, treating probable cause as an automatic immunity rule would largely eliminate abuse-of-process claims against public employees precisely where the tort’s first element was satisfied. That result would also disregard the legislature’s express exception for malicious or bad-faith conduct.

The prosecutor’s approval and the judge’s issuance of the warrant therefore did not conclusively resolve Pomesky’s motive. Those events supported the legitimacy of initiating criminal proceedings, but they did not necessarily explain why he selected an unusually coercive means of pursuing them.

D. Why Authorized Conduct Could Still Raise a Bad-Faith Question

The panel distinguished power from purpose. An official may possess authority to seek a warrant while allegedly using that authority for a dishonest objective. Legal authorization does not itself establish good faith.

That distinction does not mean that bad intentions alone prove abuse of process. The plaintiff must still establish the tort’s elements. Rather, it means that a defense addressing those elements cannot simply be substituted for the separate statutory-immunity analysis.

Here, a jury could infer that Pomesky sought incarceration to discredit or silence the consultant investigating him. The court held only that this inference was reasonably available, not that it was compelled.

E. The Evidentiary Significance of Departures from Routine Practice

The policy and practice evidence gave the alleged retaliation an objective foundation. The warrant-versus-summons decision departed from the department’s ordinary misdemeanor handling, while the expanded pickup radius departed from a written geographic restriction. Neither departure, standing alone, was declared sufficient to establish malice.

Considered alongside the employment investigation, prior alleged retaliation, and personal conflict, however, these choices supported an inference of selective, purpose-driven escalation. The opinion therefore illustrates how evidence of what officials normally do can illuminate why they acted differently in a particular case.

The court did not hold that the distant arrest arrangements were independently unlawful. Its analysis concerned what the deviations suggested about motive.

5. Potential Impact

  • Probable cause is not a universal immunity defense. Future courts addressing Ohio abuse-of-process claims must examine the asserted statutory exception rather than end the inquiry upon finding probable cause.
  • Comparative practice evidence can matter. Policies, historical charging practices, and unexplained departures may help distinguish a concrete bad-faith claim from a complaint based only on personal friction.
  • Immunity and liability remain separate. Surviving an immunity motion does not establish misuse of process, causation, damages, or any other unresolved merits issue.
  • Interlocutory review remains limited. Officials may obtain review of legal immunity questions, but cannot ordinarily use that appeal to secure favorable resolution of factual disputes.
  • The holding is fact-sensitive. The decision does not make every policy violation malicious, every unusual arrest actionable, or every allegation of retaliation sufficient to overcome immunity.

Its unpublished designation also counsels against portraying the decision as a sweeping transformation of Ohio law. Its practical contribution is a focused explanation of how established principles apply when lawful enforcement authority allegedly becomes a tool of personal retaliation.

6. Complex Concepts Simplified

Statutory immunity
A protection created by legislation that generally shields covered public employees from liability, subject to specified exceptions.
Summary judgment
A decision without trial when no genuine dispute over a material fact requires resolution. Here, reasonable competing inferences about motive prevented judgment for Pomesky on immunity.
Interlocutory appeal
An appeal before the entire case is finished. Immunity can justify such review because its protection may include avoiding litigation itself.
De novo review
Independent appellate examination of a legal question, without deferring to the district court’s legal conclusion.
Probable cause
A sufficient legal basis for initiating the criminal process. Its existence does not necessarily establish that every later use of that process serves a proper purpose.
Abuse of process versus malicious prosecution
Abuse of process concerns misuse of properly initiated proceedings for an improper objective. The absence of probable cause belongs to the distinct malicious-prosecution inquiry discussed by the court.
Malice and bad faith
Malice concerns intentional injury through unlawful or unjustified conduct. Bad faith concerns dishonest purpose, conscious wrongdoing, or certain duty breaches driven by improper motives. Either may trigger the relevant statutory exception.

7. Conclusion

The Sixth Circuit preserved a crucial distinction: authority to invoke criminal process does not automatically establish immunity for the purpose behind its use. Probable cause, prosecutorial approval, and a judicial warrant did not foreclose a factual inquiry into whether Pomesky pursued McDowell’s arrest to obstruct her investigation and protect his job.

The decision leaves ultimate liability unresolved. Its significance is narrower but important: when concrete evidence supports malice or bad faith, Ohio employee immunity cannot be secured at summary judgment merely by showing that the criminal process was legally available.