Charles Jackson v. City of Cleveland

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 23a0065p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CHARLES JACKSON,
Plaintiff-Appellee,
v.
CITY OF CLEVELAND, et al.,
Defendants,
BARBARA RHODES MARBURGER,
Defendant-Appellant.
┐
│
│
│
│
│
│
│
│
│
│
│
┘
No. 22-3253
Appeal from the United States District Court for the Northern District of Ohio at Cleveland.
No. 1:21-cv-01679—J. Philip Calabrese, District Judge.
Argued: December 8, 2022
Decided and Filed: April 6, 2023
Before: MOORE, STRANCH, and MURPHY, Circuit Judges.
_________________
COUNSEL
ARGUED: Stephen W. Funk, ROETZEL & ANDRESS, LPA, Akron, Ohio, for Appellant. M.
Caroline Hyatt, FRIEDMAN, GILBERT & GERHARDSTEIN, Cincinnati, Ohio, for Appellee.
ON BRIEF: Stephen W. Funk, ROETZEL & ANDRESS, LPA, Akron, Ohio, for Appellant.
M. Caroline Hyatt, Jacqueline Greene, FRIEDMAN, GILBERT & GERHARDSTEIN,
Cincinnati, Ohio, Sarah Gelsomino, FRIEDMAN, GILBERT & GERHARDSTEIN, Cleveland,
Ohio, for Appellee.
MOORE, J., delivered the opinion of the court in which STRANCH, J., joined, and
MURPHY, J., joined in part. MURPHY, J. (pp. 20–26), delivered a separate opinion concurring
in part and concurring in the judgment.
>

-- 1 of 26 --

No. 22-3253 Jackson v. City of Cleveland et al. Page 2
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Charles Jackson filed a 42 U.S.C. § 1983
lawsuit, claiming that Barbara Rhodes Marburger, an assistant prosecutor at the Cuyahoga
County Prosecutor’s Office, denied him access to the courts by redacting exculpatory
information from his investigative file, which had been requested from her office under the Ohio
Public Records Act. The district court found that she was protected by neither absolute
immunity nor qualified immunity and denied her motion to dismiss. Although we agree with the
district court that Marburger is not entitled to absolute immunity, for the reasons stated below we
REVERSE the district court’s denial of qualified immunity.
I. BACKGROUND
In 1991, Charles Jackson was wrongfully convicted of murder and was sentenced to
twenty years to life in prison. R. 1 (Compl. ¶¶ 56–57, 79–81) (Page ID #10, 13). The Ohio
Eighth District Court of Appeals upheld his conviction on appeal. Id. ¶ 58 (Page ID #10).
Between 1996 and 2013, Jackson made multiple attempts to have his conviction set aside and his
sentence vacated, but each time he was denied relief. Id. ¶¶ 59–61 (Page ID #10). Eventually,
the Ohio Innocence Project became involved in his case. Id. ¶ 62 (Page ID #10).
In February 2016, pursuant to the Ohio Public Records Act, the Ohio Innocence Project
requested from the Cleveland Division of Police (CDP) documents relating to the investigation
of Joe Travis’s murder and the arrest of Charles Jackson. Id. ¶ 63 (Page ID #11). It received no
response. In June 2016, the Innocence Project renewed its request to CDP and filed a new
records request with the Cleveland Law Department. Id. ¶¶ 63–65. In August 2016, the
Innocence Project sent another records request, this time to the Cuyahoga County Prosecutor’s
Office. Id. ¶ 66 (Page ID #11). Assistant Prosecuting Attorney Barbara Marburger responded
and produced a heavily redacted file. Id. ¶¶ 66–68, 70 (Page ID #11).
The Ohio Public Records Act exempts “investigatory work product” and “[t]rial
preparation record[s]” from production as public records. Ohio Rev. Code § 149.43(A)(1)(g),

-- 2 of 26 --

No. 22-3253 Jackson v. City of Cleveland et al. Page 3
(h); (A)(2)(c); (A)(4). At the time the Ohio Innocence Project filed its public-records request,
the exemption from production for investigatory work product and trial preparation records
extended until all “‘trials,’ ‘actions’ and/or ‘proceedings’ have been fully completed,” including
postconviction proceedings. State ex rel. Steckman v. Jackson, 639 N.E.2d 83, 92, 94 (Ohio
1994); State ex rel. WLWT-TV5 v. Leis, 673 N.E.2d 1365, 1369 (Ohio 1997). These precedents
remained in force until December 2016, several months after Marburger produced the redacted
documents to the Ohio Innocence Project, when the Ohio Supreme Court overturned the cases
and ruled that the investigatory-work-product exception did not extend beyond the conclusion of
trial, and that as a result, convicted individuals could use the Ohio Public Records Act to obtain
investigative files for the purpose of seeking postconviction relief. State ex rel. Caster v. City of
Columbus, 89 N.E.3d 598, 609 (Ohio 2016).
In May 2017, nine months after Marburger’s production of redacted records, the City of
Cleveland responded to the Innocence Project’s initial request and produced the unredacted file.
R. 1 (Compl. ¶ 69) (Page ID #11). The unredacted documents included significant exculpatory
evidence. The documents contained early statements by witnesses that contradicted their trial
testimony, as well as reports revealing unduly suggestive identification and interview
procedures, fabrication of evidence, witness statements that identified other potential suspects or
that denied that Charles Jackson was the killer, and attempts to coerce false testimony from
witnesses. Id. ¶ 71 (Page ID #11–12). Neither Jackson nor his counsel had ever received this
information before. Id. ¶ 72 (Page ID #12). In August 2017, the Cuyahoga County Prosecutor’s
Office produced an unredacted version of their file, which contained the same exculpatory police
reports as the one produced in May 2017 by the City of Cleveland. Id. ¶ 75 (Page ID #12).
In May 2018, the Ohio Innocence Project filed a Petition for Post-Conviction Relief and a
Motion for Leave to File a Motion for New Trial on Jackson’s behalf. Id. ¶ 79 (Page ID #13). In
these materials, Jackson relied upon the exculpatory information that Marburger had redacted
from the investigative file in the Cuyahoga County Prosecutor’s Office’s initial production. In
November 2018, a state-court judge vacated Jackson’s conviction and released Jackson from
custody on bond. Id. ¶ 80 (Page ID #13). In August 2019, the State moved to dismiss the
charges against him, and he was finally exonerated. Id. ¶ 81 (Page ID #13).

-- 3 of 26 --

No. 22-3253 Jackson v. City of Cleveland et al. Page 4
Jackson filed a lawsuit in the U.S. District Court for the Northern District of Ohio in
August 2021 against the City of Cleveland, a number of CDP officers and supervisors, Cuyahoga
County, and Assistant Prosecuting Attorney Barbara Marburger. R. 1 (Compl. ¶¶ 7–14) (Page
ID #3–5). He made claims under 42 U.S.C. § 1983 for Brady violations, fabrication of false
evidence, unconstitutional identification procedures, false arrest, malicious prosecution, and
failure to intervene, in addition to Monell claims against the City of Cleveland and Cuyahoga
County. Id. ¶¶ 260–362 (Page ID #45–61). Against Barbara Marburger, Jackson alleged a claim
of denial of access to courts. Id. ¶¶ 315–30 (Page ID #54–56). Specifically, he claimed that her
actions in redacting exculpatory information from the Cuyahoga County Prosecutor’s Office’s
file before turning it over to the Ohio Innocence Project denied him access to the courts.
Marburger filed a motion to dismiss in the district court. R. 11 (Marburger Mot. to
Dismiss at 1) (Page ID #126). She argued that she was entitled to absolute immunity for her role
in redacting the exculpatory information. Id. at 6–8 (Page ID #136–38). She further argued that
she was entitled to qualified immunity. Id. at 8–20 (Page ID #138–50). Finally, she argued that
Jackson’s claim was barred by the statute of limitations. Id. at 20 (Page ID #150). The district
court denied her motion to dismiss. Jackson v. City of Cleveland, 586 F. Supp. 3d 737, 754
(N.D. Ohio 2022). It reasoned that when Marburger responded to the public-records request,
there were no legal proceedings pending, and that “[r]esponding to a public records request is not
‘intimately associated with the judicial phase of the criminal process’ sufficient to confer
absolute immunity.” Id. at 747. Marburger had argued that because Jackson’s counsel had made
the records request, Marburger knew that Jackson was engaged in “a form of post-conviction
advocacy that entitle[d] her to absolute immunity.” Id. The district court found that because
there were no proceedings pending at the time of the records request, there could be no absolute
immunity. Id. at 748.
The district court then evaluated Marburger’s claim of qualified immunity. It found that
Jackson had made out a plausible claim for denial of access to the courts, which requires a
showing that: “(1) Plaintiff had a nonfrivolous underlying claim; (2) State actors took
obstructive actions, (3) those actions caused substantial prejudice to the underlying claim, for
which a State court cannot provide a remedy; and (4) Plaintiff would have sought relief on the

-- 4 of 26 --

No. 22-3253 Jackson v. City of Cleveland et al. Page 5
underlying claim that is otherwise now unattainable.” Id. at 748, 749. The district court found
that Jackson had alleged the underlying causes of action to which he had allegedly been denied
access: motions for a new trial and petitions for postconviction relief that he had lost between
1991 and 2013. Id. at 749. The district court also rejected Marburger’s argument that Jackson
did not permanently lose his remedies because he obtained relief when the state acquiesced in his
motion for a new trial and eventually dismissed the charges. Id. The district court reasoned that
this argument confused backward- and forward-looking claims. Id. It dismissed Marburger’s
argument that damages recoverable against the other defendants would adequately compensate
Jackson for his delayed release and exoneration, concluding that Jackson’s “claims against Ms.
Marburger and the County seek to vindicate different rights and interests than those against the
other Defendants. As a result, the damages flowing from these alleged harms differ.” Id. The
district court then considered whether Jackson needed to exhaust his state-court remedies before
bringing an access-to-the-courts claim and concluded that he was not required to do so,
distinguishing Jackson’s case from Swekel v. City of River Rouge, 119 F.3d 1259 (6th Cir. 1997).
Jackson, 586 F. Supp. 3d at 749–50.
The district court next considered whether Jackson’s right of access to the courts was
clearly established. Id. at 750–51. It distinguished cases requiring plaintiffs to show previous
Sixth Circuit or Supreme Court cases with similar fact patterns on the ground that they
“involve[d] police officers responding in a matter of moments to life-threatening situations.” Id.
It concluded that because Marburger “took nearly two months to respond” to the records request
and “had time to consider whether withholding exculpatory information might violate Jackson’s
rights or prejudice his efforts at exoneration” Jackson had stated a plausible claim that Marburger
had knowingly violated his clearly established constitutional rights. Id. at 751.
Finally, the district court considered whether the fact that Marburger redacted the
investigative file pursuant to Ohio state law entitled her to qualified immunity. It determined
that this issue was not a “pure legal question[] capable of neat resolution at the pleading stage,”
and it saw “no reason to deviate from the general rule in this Circuit that qualified immunity is
best decided at summary judgment.” Id. Marburger filed this timely interlocutory appeal.

-- 5 of 26 --

No. 22-3253 Jackson v. City of Cleveland et al. Page 6
II. JURISDICTION
The courts of appeals have appellate jurisdiction over “final decisions of the district
courts.” Mitchell v. Forsyth, 472 U.S. 511, 524 (1985) (quotation marks omitted). Though
denials of motions to dismiss are often non-final orders, “under the collateral-order doctrine a
‘limited set of district-court orders are reviewable’ even though they are ‘short of final
judgment.’” Cahoo v. SAS Analytics Inc., 912 F.3d 887, 896 (6th Cir. 2019) (quoting Peatross
v. City of Memphis, 818 F.3d 233, 239 (6th Cir. 2016)). Included in these collateral orders are “a
district court’s denial of a defendant’s motion for dismissal or summary judgment on the grounds
of absolute immunity or qualified immunity ‘to the extent that it turns on an issue of law.’”
Watkins v. Healy, 986 F.3d 648, 658 (6th Cir. 2021) (quoting Forsyth, 472 U.S. at 530). We
therefore have appellate jurisdiction over the district court’s denial of Marburger’s motion to
dismiss based on absolute and qualified immunity.
III. ANALYSIS
A. Standard of Review
We review de novo a defendant’s claims that they are entitled to absolute or qualified
immunity. Spurlock v. Thompson, 330 F.3d 791, 796 (6th Cir. 2003); Watkins, 986 F.3d at 660.
At the motion-to-dismiss stage, a plaintiff’s “complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We must
“construe the complaint in the light most favorable to the plaintiff, accept all well-pleaded
factual allegations as true, and draw all reasonable inferences in [the plaintiff’s] favor.” Waskul
v. Washtenaw Cnty. Cmty. Mental Health, 979 F.3d 426, 440 (6th Cir. 2020).
B. Absolute Immunity
Prosecutors receive absolute immunity from suit for conduct in initiating and pursuing
criminal prosecutions. Imbler v. Pachtman, 424 U.S. 409, 431 (1976). Absolute immunity is the
exception to the general presumption that qualified immunity “is sufficient to protect government
officials in the exercise of their duties.” Burns v. Reed, 500 U.S. 478, 486–87 (1991). When

-- 6 of 26 --

No. 22-3253 Jackson v. City of Cleveland et al. Page 7
determining whether a prosecutor’s actions should be shielded by such an expansive grant of
immunity, we apply a functional approach that “looks to ‘the nature of the function performed,
not the identity of the actor who performed it.’” Buckley v. Fitzsimmons, 509 U.S. 259, 269
(1993) (quoting Forrester v. White, 484 U.S. 219, 229 (1988)). Officials seeking the protection
of absolute immunity bear the burden of showing that absolute immunity is justified and that
“qualified immunity does not suffice.” Stockdale v. Helper, 979 F.3d 498, 502 (6th Cir. 2020);
Buckley, 509 U.S. at 269.
In our circuit, “[t]he critical inquiry is how closely related is the prosecutor’s challenged
activity to [their] role as an advocate intimately associated with the judicial phase of the criminal
process.” Howell v. Sanders, 668 F.3d 344, 349–50 (6th Cir. 2012) (quoting Ireland v. Tunis,
113 F.3d 1435, 1443 (6th Cir. 1997)); see also Prince v. Hicks, 198 F.3d 607, 611 (6th Cir.
1999). When a prosecutor performs administrative or investigatory functions that “do not relate
to an advocate’s preparation for the initiation of a prosecution or for judicial proceedings,” they
are “not entitled to absolute immunity.” Prince, 198 F.3d at 611 (quoting Buckley, 509 U.S. at
273). But administrative actions that are “directly connected with the conduct of a trial” are
protected by absolute immunity. Van de Kamp v. Goldstein, 555 U.S. 335, 344 (2009).
Therefore, “we must identify precisely the wrongful acts” that a prosecutor has taken and
“classify those acts according to their function.” Adams v. Hanson, 656 F.3d 397, 403 (6th Cir.
2011). We must also take into consideration the timing of the actions taken: “[W]here the
[prosecutor’s] role as advocate has not yet begun, namely prior to indictment, or where it has
concluded, absolute immunity does not apply.” Spurlock, 330 F.3d at 799. Functions that are
administrative or investigative in nature include “‘giving legal advice to police,’ making ‘out-of-
court statements’ at a press conference, making statements ‘in an affidavit supporting an
application for an arrest warrant,’ and ‘authorizing warrantless wiretaps in the interest of national
security.’” Koubriti v. Convertino, 593 F.3d 459, 467 (6th Cir. 2010) (citations omitted) (first
quoting Spurlock, 330 F.3 at 798; then quoting Fitzsimmons, 509 U.S. at 277–78; then quoting
Kalina v. Fletcher, 522 U.S. 118, 119 (1997); and then quoting Mitchell, 472 U.S. at 520).1
1Marburger claims that absolute immunity applies whenever a prosecutor engages in “even unquestionably
illegal or improper conduct . . . so long as the general nature of the action is part of the normal duties of a

-- 7 of 26 --

No. 22-3253 Jackson v. City of Cleveland et al. Page 8
The act in question here is Barbara Marburger’s response to the Ohio Innocence Project’s
public-records request and her redaction of exculpatory information in the Cuyahoga County
Prosecutor’s Office’s file on Jackson. This is an administrative task that is not closely related to
“an advocate’s preparation for the initiation of a prosecution or for judicial proceedings.”
Prince, 198 F.3d at 611 (quoting Buckley, 509 U.S. at 273). Marburger has provided no
historical or common-law support for her argument that responding to a records request after the
conclusion of a trial should be protected by absolute immunity. And, as the district court found
significant, there was no trial or other ongoing judicial proceeding at the time the records request
was filed; Jackson’s most recent attempt at having his conviction overturned had concluded in
2013. Marburger never took on a role as an advocate in a judicial proceeding related to Jackson.
Marburger contends that absolute immunity shields prosecutors from liability for failure
to disclose exculpatory evidence “in connection with a criminal proceeding,” Appellant Br. at 46,
and that under state law at the time, such a proceeding extended until the completion of a
defendant’s sentence, id. at 48. Notwithstanding any provisions of Ohio law, Marburger fails to
cite any case indicating that a criminal proceeding in the federal courts extends from the moment
of indictment to the moment an individual is released from incarceration. She also misstates the
law in our circuit; we have held that “absolute immunity protects a prosecutor from civil liability
for the non-disclosure of material exculpatory evidence at trial.” Koubriti, 593 F.3d at 470
(emphasis added). The Sixth Circuit has extended absolute immunity for adversarial acts of
prosecutors past the trial context in some circumstances, but those circumstances are limited to
“post-conviction proceedings, including direct appeals, habeas corpus proceedings, and parole
proceedings, where the prosecutor is personally involved in the subsequent proceedings and
continues [their] role as an advocate.” Spurlock, 330 F.3d at 799 (emphasis added). To be
protected by absolute immunity in both the trial and postconviction contexts, a prosecutor must
be acting as an advocate in a judicial proceeding. Marburger was not acting as an advocate when
she responded to the Innocence Project’s records request. The fact that Jackson’s investigative
file was ultimately used to support a petition for postconviction relief did not transform the
prosecutor.” Appellant Br. at 46 (quoting Hatchett v. City of Detroit, 495 F. App’x 567, 571 (6th Cir. 2012)). This
fundamentally misstates both Sixth Circuit and Supreme Court precedent on absolute immunity, which explicitly
require a functional analysis of the challenged action. See Burns, 500 U.S. at 486; Buckley, 509 U.S. at 269; Adams,
656 F.3d at 402.

-- 8 of 26 --

No. 22-3253 Jackson v. City of Cleveland et al. Page 9
records request into a judicial proceeding. At the time of the records request, there was no
adversarial judicial proceeding taking place in Jackson’s case, and Marburger was not preparing
to participate in such a proceeding. The Sixth Circuit has not extended the scope of absolute
immunity to the extent Marburger claims.
We also find unconvincing Marburger’s arguments that she ought to be treated the same
as a prosecutor representing the government in a postconviction proceeding would have been.
She contends that, at the time of the Innocence Project’s records request, the Ohio Public
Records Act required incarcerated individuals to file a motion with their sentencing judge to
obtain a copy of public records relevant to a justiciable claim, and that if Jackson had done so,
his request could have been considered by a prosecutor acting as an advocate in his criminal case
and entitled to absolute immunity. Appellant Br. at 48–49; see also Ohio Rev. Code
§ 149.43(B)(8); Steckman, 639 N.E.2d at 92. But absolute immunity is derived from the
historical common law. Imbler, 424 U.S. at 421. It would make little sense for absolute
immunity to turn on minutiae of current state law. And our precedent regarding claims of
absolute immunity directs us to consider the prosecutor’s actions and whether they are inherently
part of a prosecutor’s adversarial function as an advocate of the state in criminal proceedings.
We cannot consider hypothetical actions that might have been taken in a different set of
circumstances; here, we are squarely presented with the question of whether responding to a
records request after the conclusion of a criminal trial and appeal is an action that is an inherent
part of a prosecutor’s adversarial function as an advocate of the state in criminal proceedings.
We hold that it is not. The district court correctly denied Marburger absolute immunity.
C. Qualified Immunity
We next consider Marburger’s claim of qualified immunity. Qualified immunity protects
public officials from civil liability for damages when their conduct does not violate the plaintiff’s
“clearly established statutory or constitutional rights of which a reasonable person would have
known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)). “In order to overcome a defendant’s qualified immunity defense, ‘a
plaintiff must plausibly allege facts showing (1) that the official violated a statutory or
constitutional right, and (2) that the right was clearly established at the time of the challenged

-- 9 of 26 --

No. 22-3253 Jackson v. City of Cleveland et al. Page 10
conduct.’” Moderwell v. Cuyahoga County, 997 F.3d 653, 659–60 (6th Cir. 2021) (quotation
marks omitted) (quoting Marvaso v. Sanchez, 971 F.3d 599, 605 (2020)). We may address these
questions in any order. Cahoo, 912 F.3d at 897.
“[I]t is ‘generally inappropriate for a district court to grant a 12(b)(6) motion to dismiss
on the basis of qualified immunity.’” Siefert v. Hamilton County, 951 F.3d 753, 761 (6th Cir.
2020) (quoting Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016)). “Although
an officer’s ‘entitlement to qualified immunity is a threshold question to be resolved at the
earliest possible point,’ that point is usually summary judgment and not dismissal under Rule
12.” Hart v. Hillsdale County, 973 F.3d 627, 635 (6th Cir. 2020) (quoting Wesley v. Campbell,
779 F.3d 421, 433–34 (6th Cir. 2015)). This is because “‘[i]t is often perilous to resolve a Rule
12(b)(6) motion on qualified immunity grounds’ because development of the factual record is
frequently necessary to decide whether the official’s actions violated clearly established law.”
Hart, 951 F.3d at 635 (quoting Singleton v. Kentucky, 843 F.3d 238, 242 (6th Cir. 2016)).
“Without more than the complaint to go on, the court ‘cannot fairly tell whether a case is
“obvious” or “squarely governed” by precedent,’ making qualified immunity inappropriate.”
Siefert, 951 F.3d at 761 (quoting Guertin v. State, 912 F.3d 907, 917 (6th Cir. 2019)). “The test
is whether, reading the complaint in the light most favorable to the plaintiff, it is plausible that an
official’s acts violated the plaintiff’s clearly established constitutional right.” Cahoo, 912 F.3d at
899 (quoting Courtright, 839 F.3d at 518). We first ask whether Jackson alleged a plausible
claim that his constitutional right of access to the courts has been violated.
1. Violation of Constitutional Rights
Plaintiffs with nonfrivolous legal claims have a constitutional right to access the courts to
bring those claims. Christopher v. Harbury, 536 U.S. 403, 414–15 & n.12 (2002). Jackson
brought a backward-looking access-to-courts claim, in which he alleged that Marburger barred
his access to the courts by concealing exculpatory evidence so that he could not obtain an
adequate remedy for his underlying postconviction or habeas relief claims in state and federal
courts. R. 1 (Compl. at ¶¶ 315–30) (Page ID #54–55). This claim has four elements: “(1) a
non-frivolous underlying claim; (2) obstructive actions by state actors; (3) ‘substantial[ ]
prejudice’ to the underlying claim that cannot be remedied by the state court; and (4) a request

-- 10 of 26 --

No. 22-3253 Jackson v. City of Cleveland et al. Page 11
for relief which . . . is now otherwise unattainable.” Flagg v. City of Detroit, 715 F.3d 165, 174
(6th Cir. 2013) (citations and quotations omitted). On appeal, Marburger argues that Jackson has
not satisfied only the final two elements. Appellant Br. at 31.2
A plaintiff “must show actual injury” or prejudice to their underlying claim when stating
a claim for interference with access to the courts. Harbin-Bey v. Rutter, 420 F.3d 571, 578 (6th
Cir. 2005); see also Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). If the
obstructive action occurs before the plaintiff can file their claim, they “must establish that such
abuse denied [them] ‘effective’ and ‘meaningful’ access to the courts.” Swekel, 119 F.3d at 1263
(quoting Bounds v. Smith, 430 U.S. 817, 822 (1977)). A plaintiff can do so by showing that the
defendant’s actions prevented plaintiff “from filing suit in state court or rendered ineffective
any state court remedy [plaintiff] previously may have had.” Id. at 1263–64. We have identified
“having a case dismissed, being unable to file a complaint, and missing a court-imposed
deadline” as some examples of actual prejudice to pending or contemplated litigation.
Harbin-Bey, 420 F.3d at 578.
Jackson has plausibly stated “‘substantial[] prejudice’ to [his] underlying claim that
cannot be remedied by the state court.” Flagg, 715 F.3d at 174 (quoting Swekel, 119 F.3d at
1264). The concealment of exculpatory information deprived Jackson of access to “all of the
requisite facts to file” his claim, and therefore Marburger’s concealment “den[ied] the plaintiff[]
the opportunity to file a lawsuit” for at least nine months. Green v. City of Southfield, 925 F.3d
281, 289 (6th Cir. 2019) (Murphy, J., concurring) (first quoting Swekel, 119 F.3d at 1263; and
then quoting Thompson v. Boggs, 33 F.3d 847, 852 (7th Cir. 1994)). In Swekel, the Sixth Circuit
contemplated that delay alone could prejudice the plaintiff’s ability to prevail in state court, but
ultimately denied the plaintiff’s access-to-courts claim in part because the plaintiff failed
to present evidence that she had attempted to gain access to state courts before filing her
access-to-courts claim. Here, we know for certain that Jackson’s state-court remedies were
2The concurrence suggests that Jackson has not shown that Marburger engaged in an “obstructive” act, and
that by seeking to hold Marburger responsible for redacting the exculpatory information in the Cuyahoga County
Prosecutor’s Office’s possession, Jackson is effectively bringing a claim that would conflict with the Supreme
Court’s holding in District Attorney’s Off. For Third Jud. Dist. v. Osborne, 557 U.S. 52, 68–69 (2009). Crucially,
Marburger does not contest that she engaged in obstructive actions.

-- 11 of 26 --

No. 22-3253 Jackson v. City of Cleveland et al. Page 12
rendered ineffective without the exculpatory information contained in the file because he had
previously and unsuccessfully attempted to obtain postconviction relief on several occasions.
Marburger redacted the investigative file and delivered the redacted file to the Innocence
Project in August 2016. Jackson ultimately received the unredacted file from the City of
Cleveland in May 2017—nine months later—and then filed a petition for a new trial, after which
his conviction was vacated and he was released from prison in November 2018. Had Marburger
sent Jackson an unredacted file, he could have applied for postconviction relief and been released
approximately nine months earlier. Marburger’s actions “effectively cover[ed]-up evidence” and
temporarily “foreclosed [Jackson] from filing suit in state court,” because her concealment
“render[ed] [his] state court remedy ineffective.” Swekel, 119 F.3d at 1262, 1264. Marburger
thus caused Jackson substantial prejudice on his postconviction relief claims.
Even if, as Marburger contends, Jackson could have filed an action before his sentencing
judge seeking release of the records, the state court cannot turn back time. The state court must
be able to remedy the “‘substantial[] prejudice’ to the underlying claim,” not the obstructive
action. Flagg, 715 F.3d at 174 (quoting Swekel, 119 F.3d at 1264). Though the state courts
could have, after State ex rel. Caster v. Columbus, issued a writ of mandamus requiring
Marburger to produce the unredacted file, or the state sentencing judge could have ordered the
production of the unredacted file, they could not have remedied the delay of his postconviction
filing. Thus, there is no procedure that could “remedy the wrong alleged.” Green, 925 F.3d at
288 (Murphy, J., concurring) (quoting Swekel, 119 F.3d at 1265).
To be sure, a previous panel of the Sixth Circuit suggested in a brief unpublished and
nonbinding decision that delay alone does not substantially prejudice an underlying
claim, Winburn v. Howe, 43 F. App’x 731, 734 (6th Cir. 2002). But Jackson did not suffer only
delay—he also suffered the injury of prolonged wrongful incarceration as a result of delay. In
Winburn, the plaintiff complained of a lost or destroyed habeas petition. But his habeas petition
was eventually considered on the merits and denied by a federal district court, and he was unable
to show that earlier consideration of his petition would have produced a different result.
Winburn, 43 F. App’x at 734. The delay did not injure Winburn or his claims. Id. The panel in
Winburn was not presented with the question of whether the plaintiff could have shown prejudice

-- 12 of 26 --

No. 22-3253 Jackson v. City of Cleveland et al. Page 13
if his habeas petition had been granted on the merits, and other circuits have not been presented
with this issue, either. In Waller v. Hanlon, 922 F.3d 590 (5th Cir. 2019), the Fifth Circuit held
that delay of an excessive-force claim caused by police obstruction did not “cost” the plaintiffs
anything. Id. at 602. In the case of a suit seeking only monetary damages, that may perhaps be
true. Jackson’s “compromised” claim, however, was not for monetary damages; instead, he
sought his freedom. Earlier consideration of his petition would have freed him from wrongful
incarceration at an earlier date, and thus the delay in access to the unredacted investigative file
cost him nine months of freedom––nine months of being able to see his family, nine months of
going outside into the sunshine and the fresh air at will. Delay of a claim for postconviction
relief that operates to prolong wrongful incarceration constitutes prejudice.
Finally, Jackson has requested “a remedy that could not be obtained on an existing
claim.” Harbury, 536 U.S. at 421. In Harbury, when dismissing the plaintiff’s access-to-courts
claim, the Supreme Court reasoned that the plaintiff “ha[d] not explained, and it is not otherwise
apparent, that she can get any relief on the access claim that she cannot obtain on her other tort
claims.” Id. at 422. The Harbury Court went on to say that her “access claim cannot address
any injury she has suffered in a way [that her] presently surviving intentional-infliction claims
cannot . . . .” Id. That was because in Harbury, the plaintiff had a surviving intentional-
infliction claim against the CIA defendants. Id. at 409, 410, 412. Importantly, the underlying
claim that she asserted had been compromised as a result of the State Department’s obstruction
was an intentional infliction of emotional distress claim against the CIA, the very same claim that
was presently pending against the CIA—though, of course, she was no longer able to seek an
injunction, as she claimed she would have.3 She could thus still obtain the “single payment for
the harm caused by her husband’s death,” Concurrence at 25, that she sought from the federal
government through her existing intentional-infliction claim against the CIA, and therefore there
was no different remedy available to her.
3This squares with the Supreme Court’s statement in Harbury explaining its rationale for requiring a
showing that the remedy requested cannot be awarded in some other lawsuit. Immediately after describing that
requirement, the Court noted that “after all, [there is] no point in spending time and money to establish the facts
constituting denial of access when a plaintiff would end up just as well off after litigating a simpler case without the
denial-of-access element.” 536 U.S. at 415. Harbury was faced with this precise issue: she could receive the same
damages from the federal government by simply litigating her (much more straightforward) intentional-infliction
claim against the CIA.

-- 13 of 26 --

No. 22-3253 Jackson v. City of Cleveland et al. Page 14
Jackson’s case is distinct from Harbury’s in several ways. First, Jackson’s surviving
§ 1983 claims against the City of Cleveland and the defendant officers are not the same claims as
the postconviction relief petition that Marburger obstructed. A postconviction petition for relief
is different in kind from a damages claim, even if they are derived from the same Brady
violations. Second, as the district court correctly noted, Jackson’s access-to-courts claim seeks
redress for a different wrong than his Brady claims against the individual police officers and the
City of Cleveland. His claim against Marburger seeks recompense for his inability to file a
petition for postconviction relief for nine additional months as a result of her obstructive actions
in 2016. His claims against the city and its officers seek compensation for the officers’
wrongdoing in 1991 and of course for Jackson’s resultant twenty-seven years of wrongful
imprisonment. If Jackson’s claims were ultimately vindicated, Marburger and the defendant
officers would each be held responsible for damages for the final nine months of his
imprisonment––the defendant officers for obtaining his wrongful conviction and imprisonment
in the first instance, and Marburger for prolonging his imprisonment by obstructing his access to
the courts. Third, Harbury could obtain the same single payment from the federal government
for the harms caused by her husband’s death through either her access-to-courts claim or her
intentional-infliction claim. Jackson, on the other hand, could not obtain payment at all from
Marburger without his access-to-courts claim, and the Court in Harbury explicitly contemplated
that a plaintiff could bring an access-to-courts claim in which the underlying cause of action
might even be “timely and subject to trial, but for a different remedy than the one sought under
the access claim, or against different defendants.” Harbury, 536 U.S. at 416 n.13 (emphasis
added). The requirement that a plaintiff request “relief unobtainable in other suits,” id. at 416, is
therefore best read to require that a plaintiff request relief unobtainable from this entity in any
other suits. Harbury was still able to obtain relief from the federal government. But as
previously stated, Jackson cannot obtain relief from Marburger in any other way. Jackson has
therefore satisfied the fourth prong by requesting relief from Marburger that is unavailable to
him in any other action.
Another panel of this court offered a different rule for this fourth prong of a backward-
looking access-to-courts claim, stating that the plaintiff must request “relief which the plaintiff
would have sought on the underlying claim and is now otherwise unattainable.” Flagg, 715 F.3d

-- 14 of 26 --

No. 22-3253 Jackson v. City of Cleveland et al. Page 15
at 174 (emphasis added). But the holding in Flagg was based on the plaintiff’s failure to satisfy
the third prong, substantial prejudice, id. at 178–79, and therefore its discussion of the fourth
prong is dicta and does not bind this panel. Harbury contemplates that in a backward-looking
access-to-courts claim a plaintiff could seek relief that could not be obtained otherwise, not that
the plaintiff must specifically request the relief they would have received in the lawsuit they
were unable to file as a result of the denial of access to the courts. Harbury, 536 U.S. at 421–22
& nn.21, 22. Specifically, the Supreme Court explained that the plaintiff in Harbury could not
maintain a cause of action for denial of access to the courts because the district court had not
dismissed her tort claims against the defendants and she could still seek monetary damages on
those claims, and therefore she had not shown “that she can get any relief on the access claim
that she cannot obtain on her other tort claims, i.e., those that remain pending in the District
Court.” Harbury, 536 U.S. at 422. The Court went on to note that “[t]his might not be the case
where, for example, the underlying claim had been tried or settled for an inadequate amount
given official deception . . . and thus likely barred by res judicata, or where the statute of
limitations had run.” Id. at 422 n.22 (citations omitted). This important context from the
Harbury opinion makes clear that Flagg’s statement of the fourth prong of an access-to-courts
claim is too narrow, and that the correct inquiry is whether the plaintiff has requested “a remedy
that could not be obtained on an existing claim,” Harbury, 536 U.S. at 421, rather than “relief
which the plaintiff would have sought on the underlying claim and is now otherwise
unattainable,” Flagg, 715 F.3d at 174 (emphasis added). In other words, Jackson does not need
to seek release from prison on his access-to-courts claim because that is the relief that was denied
to him. He can instead seek damages from Cuyahoga County and from Marburger because he
cannot obtain any other remedy against either defendant. Jackson has plausibly stated a claim
that Marburger violated his right of access to the courts when she removed exculpatory
information from the file she supplied in response to the Ohio Innocence Project’s public-records
request and thereby effectively prevented him from filing for postconviction relief.
2. Clearly Established Law
We next consider the second prong of qualified immunity, which asks whether the right
that has been violated was clearly established, meaning that “every ‘reasonable official would

-- 15 of 26 --

No. 22-3253 Jackson v. City of Cleveland et al. Page 16
[have understood] that what he is doing violates that right.’” Ashcroft v. Al-Kidd, 563 U.S. 731,
741 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)) (alteration in Anderson);
see also Johnson v. Moseley, 790 F.3d 649, 653 (6th Cir. 2015). The Supreme Court has often
“stressed that courts must not ‘define clearly established law at a high level of generality, since
doing so avoids the crucial question whether the official acted reasonably in the particular
circumstances that he or she faced.’” District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018)
(quoting Plumhoff v. Rickard, 572 U.S. 765, 779 (2014)). A rule is too general “if the
unlawfulness of the officer’s conduct ‘does not follow immediately from the conclusion that [the
rule] was firmly established.’” Id. (quoting Anderson, 483 U.S. at 641). Nevertheless, an
official “can still be on notice that their conduct violates established law even in novel factual
circumstances. . . . Although earlier cases involving ‘fundamentally similar’ facts can provide
especially strong support for a conclusion that the law is clearly established, they are not
necessary to such a finding.” Hope v. Pelzer, 536 U.S. 730, 741 (2002) (quoting United States
v. Lanier, 520 U.S. 259, 268 (1997)); see also Al-Kidd, 563 U.S. at 741; cf. Taylor v. Riojas, 141
S. Ct. 52, 53 (2020) (per curiam) (vacating and remanding a Fifth Circuit decision granting
qualified immunity because no reasonable official could have concluded that it was permissible
to house a prisoner in deplorably unsanitary conditions for six days even though there was no
previous case directly on point). Qualified immunity protects “all but the plainly incompetent or
those who knowingly violate the law.” White v. Pauly, 580 U.S. 73, 79 (2017) (quoting Mullenix
v. Luna, 577 U.S. 7, 12 (2015)).
The district court found that the Sixth Circuit had recognized backward-looking access-
to-courts claims and defined the elements of the claim with particularity, thus making it beyond
debate that restricting an individual’s access to the courts is a constitutional violation. Jackson,
586 F. Supp. 3d at 750. It rejected Marburger’s argument that, based on Arrington-Bey v. City of
Bedford Heights, 858 F.3d 988 (6th Cir. 2017), Jackson was required to identify a specific case
with a similar fact pattern. Id. at 750–51. The district court reasoned that in contrast to those
officers, Marburger had at least several weeks to consider whether redacting the substantive
information from Jackson’s file would violate his rights. Id. at 751. It concluded that Jackson
had stated a claim that Marburger knowingly violated Jackson’s rights. Id.

-- 16 of 26 --

No. 22-3253 Jackson v. City of Cleveland et al. Page 17
At the time of Marburger’s actions, it was clearly established that “if a party engages in
actions that effectively cover-up evidence and this action renders a plaintiff’s state court remedy
ineffective, they have violated his right of access to the courts.” Swekel, 119 F.3d at 1262; see
also Spurlock, 330 F.3d at 801 n.3 (“[I]t is clearly established that a violation of the right of
access occurs if a party engages in actions that effectively cover-up evidence, thereby rendering
a plaintiff’s court remedy ineffective. As such, any reasonable official would know [the
defendant’s] conduct was constitutionally inappropriate.” (citation omitted)).
The contours of this right must be “clear enough that every reasonable official would
interpret it to establish the particular rule the plaintiff seeks to apply.” Wesby, 138 S. Ct. at 590.
The Supreme Court has repeatedly urged the courts of appeals that general principles can clearly
establish law only in obvious cases, see, e.g., Rivas-Villegas v. Cortesluna, 142 S. Ct. 4,
8 (2021); Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018); Wesby, 138 S. Ct. at 590, and has
criticized the courts of appeals for citing cases “too factually distinct to speak clearly to the
specific circumstances,” Mullenix, 577 U.S. at 18; see also City of Tahlequah v. Bond, 142 S. Ct.
9, 11–12 (2021). The question then becomes whether the principle outlined in Spurlock and
Swekel is sufficiently specific or whether the facts of those cases are sufficiently similar that
every reasonable official in Marburger’s position would know that concealing exculpatory
information by redacting the investigative file violated Jackson’s right of access to the courts.
Swekel refers to two examples of situations in which officials engaged in cover-ups that
constitute violations of the right of access to the courts: one in which police officers concealed a
murder by one of their officers, and one in which prosecutors covered up the fact that a murder
had occurred and that one of their fellow prosecutors was the murderer. Swekel, 119 F.3d at
1262. And the court in Swekel denied the plaintiff’s access-to-courts claim because she had not
shown that the defendants’ actions had rendered her state-court suit ineffective. Id. at 1264.
Spurlock is closer; it considered a prosecutor who engaged in obstructive actions and to whom
the Sixth Circuit denied qualified immunity. That prosecutor, however, engaged in egregious
conduct that included coercing witnesses to maintain false testimony and concealing evidence
that would have revealed a wrongful conviction. Spurlock, 330 F.3d at 798–801, 801 n.3.

-- 17 of 26 --

No. 22-3253 Jackson v. City of Cleveland et al. Page 18
The rule set out in Swekel and Spurlock, that a violation of the right of access to the
courts occurs when an official “engages in actions that effectively cover-up evidence, thereby
rendering a plaintiff’s court remedy ineffective,” Spurlock, 330 F.3d at 801 n.3, is too general.
“[T]he unlawfulness of [Marburger’s] conduct ‘does not follow immediately from the conclusion
that [the rule is] firmly established.’” Wesby, 138 S. Ct. at 590 (quoting Anderson, 483 U.S. at
641). We do not believe that every reasonable official would conclude that redacting
exculpatory information included in a response to a public-records request constitutes “actions
that effectively cover-up evidence” on par with coercion of witnesses or concealment of a
murder. The Sixth Circuit had never considered an access-to-courts claim based on redaction in
a response to a public-records request, and a reasonable official, considering the legal landscape
at the time, could conclude that they would not be violating constitutional or statutory law by
redacting exculpatory information from a response to a public-records request. Marburger did
not interfere or coerce witnesses or conceal evidence of a murder, as detailed in Swekel and
Spurlock. Ohio state law at the time expressly classified all investigatory work product and trial
preparation material as not public records for the purposes of public-records requests, which
would arguably allow the refusal to disclose exculpatory information contained in those records.
Ohio Rev. Code § 149.43(A)(1)(g), (h); (A)(2)(c); (A)(4). State law also created an alternative
method for defendants to access investigative records and any exculpatory information therein.
Ohio Rev. Code § 149.43(B)(8). Furthermore, the Supreme Court has held that defendants do
not have a Brady right to exculpatory evidence in the postconviction context and must show
instead that “consideration of [the] claim within the framework of the State’s procedures for
postconviction relief ‘offends some principle of justice so rooted in the traditions and conscience
of our people as to be ranked as fundamental,’ or ‘transgresses any recognized principle of
fundamental fairness in operation.’” District Attorney’s Off. for Third Jud. Dist. v. Osborne, 557
U.S. 52, 68–69 (2009) (quoting Medina v. California, 505 U.S. 437, 446, 448 (1992)). A
reasonable official could conclude that, in light of Osborne, they had no special obligation to
provide exculpatory information outside of ordinary state procedures for obtaining
postconviction relief, provided that those procedures are adequate. We cannot say that every
reasonable official would have apprehended that they were violating Jackson’s constitutional
right of access to the courts by redacting exculpatory information when responding to a

-- 18 of 26 --

No. 22-3253 Jackson v. City of Cleveland et al. Page 19
public-records request, even if they did so purposefully. We hold that Marburger is protected by
qualified immunity because in 2016 it was not clearly established that redacting exculpatory
information from a response to a public-records request constituted “actions that effectively
cover-up evidence” and thus actions that violate the right of access to the courts.
IV. CONCLUSION
We hold that Marburger is not entitled to absolute immunity for redacting Jackson’s
investigative file in response to the Ohio Innocence Project’s records request because she
performed an administrative function that is not intimately connected with judicial proceedings.
We also hold that Jackson has plausibly alleged that Marburger violated his right of access to the
courts by redacting exculpatory material from the investigative file and thereby stymieing his
efforts to file a petition for postconviction relief. But it was not yet clearly established in 2016
that redacting exculpatory information from a response to a public-records request would violate
the right of access to the courts, and therefore we must grant qualified immunity to Marburger.
Accordingly, we REVERSE the district court’s order denying qualified immunity.

-- 19 of 26 --

No. 22-3253 Jackson v. City of Cleveland et al. Page 20
_________________
CONCURRENCE
_________________
MURPHY, Circuit Judge, concurring in part and concurring in the judgment. In 1991,
Charles Jackson was wrongfully convicted of murdering a man in Cleveland, Ohio. According
to Jackson, Cleveland police officers intentionally failed to produce exculpatory information at
his criminal trial in violation of Brady v. Maryland, 373 U.S. 83 (1963). Decades later,
Jackson’s case file in the Cuyahoga County Prosecutor’s Office still contained the exculpatory
information. He alleges that the Ohio Innocence Project asked for this file in 2016 using Ohio’s
public-records laws. Barbara Marburger, a former assistant prosecutor, responded to this request
by disclosing a “heavily redacted” file that left out the exculpatory information. Compl., R.1,
PageID 11. After the prosecutor’s office later provided the unredacted file in 2017, Jackson won
his release from prison. Id., PageID 12–13. He alleges that Marburger’s failure to immediately
disclose the full file to the Ohio Innocence Project violated his right to access the courts. I agree
with my colleagues that Marburger did not have absolute immunity under § 1983 when
responding to this public-records request. I likewise agree that Marburger’s conduct did not
violate clearly established constitutional law. Qualified immunity under § 1983 thus insulates
her from Jackson’s access-to-courts claim. See City of Tahlequah v. Bond, 142 S. Ct. 9, 11–12
(2021) (per curiam).
But I part ways with my colleagues’ conclusion that, apart from this qualified-immunity
defense, Jackson’s complaint stated a viable access-to-courts claim against Marburger. As I
have noted, this “nebulous” claim “remains a work in progress.” Green v. City of Southfield, 925
F.3d 281, 287–89 (6th Cir. 2019) (Murphy, J., concurring) (citation omitted). The Supreme
Court has merely assumed the claim’s existence. See Christopher v. Harbury, 536 U.S. 403, 414
n.9 (2002). And circuit courts have had trouble even pinpointing its constitutional source. Is it
the First Amendment right to “petition the Government for a redress of grievances”? U.S. Const.
amend. I. Or the Fourteenth Amendment right not to be “deprive[d]” of “life, liberty, or
property, without due process of law”? U.S. Const. amend. XIV, § 1. We and other courts have

-- 20 of 26 --

No. 22-3253 Jackson v. City of Cleveland et al. Page 21
identified these possibilities, among several others. See Swekel v. City of River Rouge, 119 F.3d
1259, 1262 (6th Cir. 1997); Ryland v. Shapiro, 708 F.2d 967, 971–72 (5th Cir. 1983).
Because courts remain unsure of the constitutional claim’s source, they have created its
elements with little regard for the constitutional text. In seemingly common-law fashion, we
have created a four-part test for plaintiffs to prove this claim. See Flagg v. City of Detroit, 715
F.3d 165, 174 (6th Cir. 2013). Other courts have adopted similar multi-part tests. See, e.g.,
Harer v. Casey, 962 F.3d 299, 308 (7th Cir. 2020); Waller v. Hanlon, 922 F.3d 590, 602 (5th Cir.
2019). As for our elements, we have said that: (1) a plaintiff must at one time have possessed a
“non-frivolous underlying claim”; (2) the state-actor defendant must have engaged in
“obstructive actions”; (3) these actions must have caused “‘substantial[] prejudice’ to the
underlying claim” that cannot be remedied by the court that would have heard it; and (4) the
plaintiff must request the relief that the plaintiff “would have sought on the underlying claim”
but is “now otherwise unattainable.” Flagg, 715 F.3d at 174 (citation omitted).
Jackson’s complaint does not plausibly plead these elements. To be sure, I agree that the
complaint pleads our first element: that Jackson possessed a “non-frivolous” Brady claim.
Flagg, 715 F.3d at 174. He has pursued this claim in two venues seeking two forms of relief. In
his state criminal case, he filed a post-conviction motion asking the state court to overturn his
conviction because of the Brady violation. Compl., R.1, PageID 13. Once the prosecutor
conceded the “materiality” of the exculpatory information, Jackson won his release. Id. In this
federal civil case, he filed a § 1983 suit seeking damages against the Cleveland police officers
who committed the Brady violation. Id., PageID 45–47. This claim remains pending in the
district court.
I also agree that we cannot resolve Jackson’s access-to-courts claim on our second
element—that Marburger engaged in an “obstructive” act—because Marburger did not dispute
this element on appeal. Flagg, 715 F.3d at 174. Yet I pause to highlight that our cases offer
little guidance on what they mean by “obstructive” conduct. We should interpret this claim’s
elements to reflect (not refute) broader constitutional principles. See Green, 925 F.3d at 288–89
(Murphy, J., concurring). And the Supreme Court has held that the Constitution does not
typically compel state actors to disclose information in their possession. McBurney v. Young,

-- 21 of 26 --

No. 22-3253 Jackson v. City of Cleveland et al. Page 22
569 U.S. 221, 233 (2013). It has also held that a defendant’s Brady right to the disclosure of
exculpatory information does not extend beyond the criminal trial. See District Attorney’s Off.
for Third Jud. Dist. v. Osborne, 557 U.S. 52, 68–69 (2009).
Jackson, though, does not allege that Marburger participated in the Brady violation in
1991. Compl., R.1, PageID 6–10. She entered the scene 25 years later when responding to the
Ohio Innocence Project’s public-records request. Id., PageID 11–12. Jackson also does not
challenge Marburger’s contention that her public-records redactions adhered to the Ohio
Supreme Court’s then-existing reading of Ohio law. See State ex rel. Steckman v. Jackson, 639
N.E.2d 83, 92–94 (Ohio 1994). (The court changed its reading months later, which led to the
release of Jackson’s full file. See State ex rel. Caster v. Columbus, 89 N.E.3d 598, 608–09 (Ohio
2016).) As far as I can tell, then, Jackson seeks to hold Marburger liable under the Constitution
for her state-law-authorized refusal to disclose information to a third party. If we imposed this
constitutional duty on Marburger, how would it fit with the Supreme Court’s precedent that the
Constitution does not require state actors to disclose information in their possession? And
wouldn’t such a duty create the very post-trial Brady right that the Court has said does not exist?
I am not sure of the answer to these questions. But we can save them for another day given the
parties’ briefing choices.
Jackson’s access-to-courts claim nevertheless founders on our third element: that he
show “substantial prejudice” to his Brady claim that the court considering the claim cannot
remedy. Flagg, 715 F.3d at 174 (citation omitted). This element requires Jackson to prove that
Marburger’s conduct “foreclosed” the relief that he seeks on his Brady claim. Swekel, 119 F.3d
at 1264.
But Marburger’s initial redactions of Jackson’s case file have not prohibited him from
seeking either type of Brady relief that he has requested (his release and damages). As for the
injunctive-type relief that he once sought in state court, Jackson cannot show prejudice for an
obvious reason: he won. Despite Marburger’s conduct, Jackson obtained his release from prison
by pursuing this Brady claim in his post-conviction motion. Without a “lost remedy,” Jackson
cannot establish that Marburger prejudiced his victorious Brady claim. Harbury, 536 U.S. at
416.

-- 22 of 26 --

No. 22-3253 Jackson v. City of Cleveland et al. Page 23
As for the monetary relief that he now seeks in this federal suit, Jackson makes no claim
that Marburger’s redactions of his case file harmed his ability to prove his Brady claim against
the Cleveland officers in any way. See Swekel, 119 F.3d at 1263–64. He, for example, does not
allege that Marburger’s conduct prevented him from filing a timely § 1983 claim. See Harbury,
536 U.S. at 422 n.22. Nor does he allege that her conduct triggered a claim-preclusion defense
because he litigated and lost an earlier suit at a time when he lacked the later-obtained case file.
See id.
Maybe so, Jackson responds, but he would have won his release in state court sooner if
Marburger had not held up the disclosure of his unredacted file. Yet this delay does not show
prejudice. Indeed, we have already made this precise point when rejecting a prisoner’s claim
that state actors impeded (but did not prevent) his pursuit of a habeas petition. Winburn v. Howe,
43 F. App’x 731, 734 (6th Cir. 2002). As we said in Winburn, “[d]elay in filing legal documents
alone does not rise to the level of a constitutional deficiency.” Id. Rather, a plaintiff must show
that the defendant’s delay-causing conduct generated a “litigation-related” harm to the legal
claim. Id. Given that Jackson has won on his state-court Brady claim, he cannot identify this
special type of prejudice. No obstacle blocked the litigation of his Brady claim to a state-court
victory.
While only an unpublished decision, Winburn has plenty of company. The other circuit
courts to consider this question all agree that litigation delay does not suffice. As the Seventh
Circuit explained, police misconduct that “delays redress” but “still allow[s] sufficient time for
the plaintiff” to pursue the claim does not prove prejudice. Harer, 962 F.3d at 307 (citation
omitted). Or as the Fifth Circuit put it, “showing delay alone is not enough; the plaintiffs must
likewise show the delay caused some further harm to their cause of action.” Waller, 922 F.3d at
603.
My colleagues respond that the delay caused a tangible non-litigation harm (Jackson’s
incarceration for several more months) and that this harm allows Jackson to pursue an
access-to-courts claim. Under the existing caselaw, however, a plaintiff must identify
“litigation-related” harm—not outside-the-courtroom harm. Winburn, 43 F. App’x at 734
(emphasis added). That is, the prejudice must affect the “cause of action” itself. Waller, 922

-- 23 of 26 --

No. 22-3253 Jackson v. City of Cleveland et al. Page 24
F.3d at 603. This limit flows out of the nature of the claim: it is not a substantive-due-process
claim alleging the denial of the right to liberty; it is an access-to-courts claim alleging the denial
of the right to litigate. My colleagues’ reasoning thus rejects our logic in Winburn and creates a
circuit split.
My colleagues’ analysis of prejudice also conflicts with Harbury—the case in which the
Supreme Court assumed the existence of this access-to-courts claim. The plaintiff in Harbury
alleged that the delay in disclosing information had led to the most serious of non-litigation
harms: her husband’s death. 536 U.S. at 405. She suggested that certain CIA defendants had
collaborated with the Guatemalan army to detain, torture, and kill her husband. Id. at 406. She
next suggested that other State Department defendants “intentionally misled” her when she
expressed concerns about her husband’s safety. Id. at 406–07. These latter defendants had
allegedly deprived her of her right to ask the courts for an injunction that could have saved his
life. Id. at 409–10.
The Court held that this access-to-courts claim against the State Department defendants
failed for two reasons. It noted that her complaint did not identify any underlying claim that the
failure to disclose truthful information had prevented. Id. at 418. She later identified this
underlying claim in oral argument as one for the intentional infliction of emotional distress
against the CIA defendants. Id. at 419 & n.17, 421. Even assuming that she could amend her
pleadings in this fashion, the Court next held that she could still seek damages on this
intentional-infliction claim in her pending suit against the CIA defendants. Id. at 420–21.
Money, of course, could not turn back the clock. So the State Department defendants’ conduct
had permanently foreclosed her ability to seek an injunction against the CIA defendants that
might have saved her husband’s life (and thus the delay prejudiced her in this tragic real-world
sense). Id. at 421. But the Court responded that she could not now seek that injunction through
her access-to-courts claim either. Id. at 421–22. And because she could seek damages on both
claims (the intentional-infliction claim against the CIA defendants and the access-to-courts claim
against the State Department defendants), it held that she must pursue her tort claim rather than
her access-to-courts claim. Id.

-- 24 of 26 --

No. 22-3253 Jackson v. City of Cleveland et al. Page 25
Identical logic applies here. Apart from Jackson’s access-to-courts claim against
Marburger, he continues to pursue his Brady claim against the Cleveland officers. Neither
through his pending Brady claim nor through his pending access-to-courts claim can Jackson get
back the extra months in prison that he allegedly served due to the delayed disclosure of his case
file. But he can seek damages for this extra time under his Brady claim. So he is “not entitled to
maintain the access claim as a substitute” for that Brady claim. Id.
This reasoning brings me to our fourth and final element. I agree with my colleagues
that, notwithstanding stray language in Flagg, this element requires Jackson to prove that he may
not now seek the relief through his Brady claim that he pursues through his access-to-courts
claim. See Harbury, 536 U.S. at 416; cf. Flagg, 715 F.3d at 174. In this suit, however, he did
not identify in the district court any impediment that would bar him from using his Brady claim
to seek payment for the extra months that he spent in prison allegedly due to Marburger’s
delayed disclosure. Cf. County of Los Angeles v. Mendez, 581 U.S. 420, 430–31 (2017). To the
contrary, he pursues both claims at the same time in the same suit—something that other courts
would categorically prohibit him from doing. See, e.g., Harer, 962 F.3d at 309; Waller, 922 F.3d
at 603.
My colleagues assert that Jackson seeks relief on his access-to-courts claim that he
cannot pursue on his Brady claim because he pursues the two claims against different defendants:
he sued Marburger for the alleged access-to-courts violation in 2016 and the Cleveland officers
for the alleged Brady violation in 1991. This logic would allow a plaintiff to pursue an access-
to-courts claim whenever the defendant who allegedly violated the access-to-courts right is
different from the defendant who committed the underlying violation. I do not read this fourth
element to permit that result. Rather, it asks whether the plaintiff seeks to use both claims to
redress the same injury. Harbury again proves my point. The plaintiff there sought a single
payment for the harm caused by her husband’s death. So, even though the tort claim ran against
the CIA defendants and the access-to-courts claim ran against the State Department defendants,
the Court did not let the latter claim proceed. Id. at 421. Likewise, Jackson seeks to use both
claims to pursue a payment for the extra time that he spent in prison. I thus would follow
Harbury here.

-- 25 of 26 --

No. 22-3253 Jackson v. City of Cleveland et al. Page 26
Because Jackson’s complaint fails to state an access-to-courts claim, I respectfully concur
in the majority opinion in part and concur in the judgment.

-- 26 of 26 --