Avalon Precision Casting Co v. Industrial Commission of Ohio, (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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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.

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 42U.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. 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, 682­83 (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.

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