Avalon Precision Casting Co v. Industrial Commission of Ohio, et al, No. 07-4131 (6th Cir. 2008)
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 08a0440n.06 Filed: July 25, 2008 No. 07-4131 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT AVALON PRECISION CASTING CO., Plaintiff-Appellant, v. INDUSTRIAL COMMISSION OF OHIO; ROBIN NASH, Staff Hearing Officer; GARY DICEGLIO, Chairman; WILLIAM E. THOMPSON, Member; KEVIN R. ABRAMS, Member; OHIO BUREAU OF WORKERS COMPENSATION; MARSHA P. RYAN, Administrator; JOHNNIE EDWARDS, Defendants-Appellees. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO Before: SUTTON and COOK, Circuit Judges; and ROSE,* District Judge. PER CURIAM. A tow-motor accident injured Johnnie Edwards s knee at work. Edwards received disability payments, as well as a safety-violation ( VSSR ) award for $3,310.72 because the tow motor lacked a working horn to warn Edwards as it approached. Instead of seeking Ohio judicial review, his employer, Avalon Precision Casting Company ( Avalon ), filed this 42 U.S.C. § 1983 action asking the court to declare that: OSHA preempts * The Honorable Thomas M. Rose, United States District Judge for the Southern District of Ohio, sitting by designation. No. 07-4131 Avalon Precision Casting Co. v. Industrial Commission of Ohio, et al. Ohio s VSSR scheme; the Ohio Administrative Code section requiring a working horn is impermissibly vague; and Ohio s prohibition on cross-examining a claimant s personal physician in workers compensation proceedings violates due process. The district court, in a thorough and thoughtful opinion with which we agree, rejected each of Avalon s claims, and we adopt the district court s Opinion as the opinion of this panel. See Avalon Precision Casting Co. v. Indus. Comm n of Ohio, No. 1:04-cv-02292, 2006 WL 3332212 (N.D. Ohio Nov. 15, 2006). In a separate Order the district court denied Avalon default judgment against Edwards. Avalon s appeal also targets that decision, relying on the compulsory phrasing of the defaultjudgment rule that the clerk must enter the party s default if that party has failed to plead or otherwise defend, as did Edwards. See Fed. R. Civ P. 55(a) (emphasis added). But § 1983 confers jurisdiction only [t]o redress the deprivation, under color of any State law . . . of any right, privilege, or immunity secured by the Constitution of the United States . . . . See Watson v. Kenlick Coal Co., 498 F.2d 1183, 1185 (6th Cir. 1974); see also Steel Co. v. Citizens for a Better Env t, 523 U.S. 83, 89 (1998); Bell v. Hood, 327 U.S. 678, 682 83 (1946). The district court thus lacked jurisdiction to grant a judgment against Edwards, a defendant who indisputably is not a state actor and who cannot be traced to any of these alleged constitutional violations. We affirm. -2-
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