Full Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 26a0436n.06 No. 26-3027 UNITED STATES COURT OF APPEALS FILED Oct 26, 2026 FOR THE SIXTH CIRCUIT KELLY L. STEPHENS, Clerk F. DYANN MCDOWELL; TRAINING MARBLES ) ) INC., ON APPEAL FROM THE ) Plaintiffs -Appellees, ) UNITED STATES DISTRICT ) COURT FOR THE v. ) SOUTHERN DISTRICT OF ) OHIO MICHAEL T. POMESKY, ) ) OPINION Defendant -Appellant. ) Before: CLAY, NALBANDIAN, and BLOOMEKATZ, Circuit Judges. BLOOMEKATZ, Circuit Judge. Perry Township hired Dyann McDowell to conduct a review of its human resources practices. In the course of her audit, she uncovered a range of complaints against then-Chief of Police Michael T. Pomesky and also witnessed his attempts to intimidate officers who participated in her investigatory interviews. After he not-so-subtly insinuated that he knew where she lived, McDowell began to fear that Pomesky would retaliate against her. So she falsely told Pomesky that she had received a notification that a police report had been run on her, hoping it would deter him from targeting her, particularly at home. But Pomesky soon realized the lie and sought charges against McDowell for misdemeanor falsification and misdemeanor obstruction of official duties. Contrary to his department’s policy and practice, he then effectuated her arrest outside of his jurisdiction, and she spent 36 hours in jail before all charges against her were dismissed and the Township fired Pomesky. No. 26-3027, McDowell, et al. v. Pomesky McDowell then sued Pomesky alleging, as relevant here, that he abused the legal process by bringing misdemeanor charges and effectuating her arrest and detention. The district court denied Pomesky’s motion for summary judgment, holding that McDowell’s allegations raised a factual question as to whether Pomesky acted with malice or in bad faith in pursuing legal action against McDowell, such that he was not entitled to statutory immunity under Ohio Revised Code § 2744.03(A). Pomesky filed this interlocutory appeal challenging the denial of statutory immunity. For the following reasons, we affirm. BACKGROUND1 In the summer of 2022, Perry Township, a municipality in northeast Ohio, engaged F. Dyann McDowell and her consulting company, Training Marbles, to review its human resources policies and practices, including complaints related to mismanagement of the Township’s police department by then-Chief of Police Michael T. Pomesky. During her investigation, McDowell interviewed Township employees who detailed Pomesky’s malicious and retaliatory behavior, and several expressed fears that he would retaliate against them for participating in McDowell’s audit. Confirming their description of Pomesky’s vindictive nature, one day that McDowell was conducting interviews, Pomesky positioned himself in the department’s maintenance garage so he could observe employees entering the building to meet with McDowell, and he subsequently opened an investigation into the employee who notified McDowell of Pomesky’s presence in the garage. As part of her audit, McDowell submitted a draft report to Perry Township detailing the complaints against Pomesky and analyzing several potential courses of action, including 1 We recite the evidence in the light most favorable to McDowell, the nonmoving party. See King v. Steward Trumbull Mem’l Hosp., Inc., 30 F.4th 551, 559 (6th Cir. 2022). No. 26-3027, McDowell, et al. v. Pomesky discipline, discharge, and resignation. The same day she submitted her report to the Township, McDowell became concerned that Pomesky might retaliate against her for the report. She was particularly worried because Pomesky made a comment to her indicating that he knew where she lived, a fact which she had not disclosed to him or shared openly with others. Suspecting that Pomesky may have discovered her address by running her name in a police database, she bluffed and falsely told him that she had received a notification from Law Enforcement Automated Data Systems (LEADS) that a report had been run on her. The next day, Pomesky opened an investigation into whether anyone in his department had generated a LEADS report on McDowell. He found no such report and closed the investigation. Several days later, Pomesky presented a prosecutor with his findings that McDowell’s comments about the LEADS report were false. The prosecutor agreed with Pomesky that probable cause existed to charge McDowell with misdemeanor falsification and obstruction of official business and signed off on those charges. Pomesky then obtained a warrant to arrest McDowell. Pomesky’s decision to seek an arrest warrant, rather than a summons, deviated from the police department’s practice for handling misdemeanors. Out of approximately 15,000 misdemeanors in the previous five years, the Township’s representatives could not identify a single case where a misdemeanor falsification charge resulted in a warrant, rather than a summons. And neither Pomesky nor the other Township officers deposed could remember any time in their career where they had issued a warrant, rather than a summons, in a similar case. Pomesky also deviated from the police department’s written arrest warrant policy. That policy specified that individuals accused of misdemeanors are to be arrested if they are stopped in Stark County, where Perry Township is located, or in adjacent counties. Pomesky admitted that he changed the pickup radius for McDowell’s warrant to enable his department to pick her up from the Franklin County No. 26-3027, McDowell, et al. v. Pomesky Corrections Center, which is several counties away (and a four-hour round trip) from Perry Township. He could not remember another time that he or his department had ever done that before. After obtaining the warrant, Pomesky called McDowell and left a voicemail late in the afternoon, which he claimed was an attempt to serve a summons on her, though the voicemail did not mention the charges, a summons, or the arrest warrant. When McDowell failed to return his call by the following morning, Pomesky initiated a request to the Reynoldsburg Police Department to execute the arrest warrant. That same day, McDowell voluntarily surrendered to the Reynoldsburg Police and was taken to the Franklin County Corrections Center II, where she was incarcerated for 36 hours. Several days later, the Township placed Pomesky on administrative leave, at least in part because of his decision to arrest McDowell. He was later discharged. McDowell sued Perry Township and Pomesky alleging various claims under 42 U.S.C. § 1983 and state law—including, as relevant here, abuse of process. The defendants moved for summary judgment, which the district court granted in part and denied in part. McDowell v. Bd. of Trustees for Perry Twp., No. 2:23-cv-02860, 2025 WL 3763823, at *1 (S.D. Ohio Dec. 30, 2025). As relevant here, the court denied summary judgment to Pomesky on the abuse of process claim, reasoning that McDowell sufficiently established “a genuine issue of material fact regarding whether Pomesky perverted the process for an ulterior purpose.” Id. at *10. It also decided that Pomesky was not entitled to statutory immunity on the abuse of process claim because immunity under Ohio law does not extend to government employees who act “with malicious purpose, in bad faith, or in a wanton or reckless manner.” Id. at *7 (quoting Ohio Rev. Code Ann. § 2744.03(A)(6)(b)). Based on its thorough review of the record, the district court determined that No. 26-3027, McDowell, et al. v. Pomesky McDowell presented sufficient evidence that Pomesky pursued McDowell’s arrest for the “dishonest purpose” of hampering her investigation into him and protecting his job. Id. at *8. Pomesky now appeals the district court’s denial of statutory immunity. ANALYSIS Pomesky’s appeal here is narrow. He challenges only the district court’s decision that he is not entitled to summary judgment on his claim to state statutory immunity from McDowell’s abuse of process suit. We have jurisdiction over “appeals from all final decisions of the district courts,” 28 U.S.C. § 1291, and “[b]ecause denial of summary judgment is not a final decision, it ordinarily is not appealable.” Barry v. O’Grady, 895 F.3d 440, 443 (6th Cir. 2018). But McDowell is claiming immunity from suit, and in that context the denial of summary judgment effectively operates as a final order as to entitlement to immunity, so we may exercise jurisdiction to resolve the immunity question. Heeter v. Bowers, 99 F.4th 900, 908 (6th Cir. 2024). We have jurisdiction to review Pomesky’s immunity appeal “‘only to the extent’ the appeal ‘turns on an issue of law.’” Id. (citing Adams v. Blount County, 946 F.3d 940, 948 (6th Cir. 2020)).2 Here, Pomesky asks us to resolve a question of law: whether, accepting the facts as construed in the light most favorable to McDowell, he is entitled to state law immunity. We turn to that question with de novo review. Id. at 921. Pomesky claims that he is entitled to immunity under an Ohio statute that provides general immunity for government employees who act “in connection with a governmental or proprietary 2 On appeal, we have jurisdiction to consider the merits of the underlying state law claim if it is “‘inextricably intertwined’ with the statutory immunity issue.” Frenchko v. Monroe, 160 F.4th 784, 804 (6th Cir. 2025) (internal citation omitted). But Pomesky does not argue that the district court erred by denying his motion for summary judgment on the merits of the abuse of process claim; rather, he argues only that he is entitled to immunity on that claim. See, e.g., Appellant Br. at 1, 29. We thus consider only the immunity question. No. 26-3027, McDowell, et al. v. Pomesky function.” Ohio Rev. Code Ann. § 2744.03(A). In Ohio, municipal employees enjoy a “presumption of immunity.” Sabo v. City of Mentor, 657 F.3d 332, 337 (6th Cir. 2011). But that immunity does not extend to employees whose “acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner.” Ohio Rev. Code Ann. § 2744.03(A)(6)(b). McDowell alleges both malice and bath faith. For malice, an employee must act with “the willful and intentional design to do injury or the intention or desire to harm another, usually seriously, through conduct which is unlawful or unjustified.” Radvansky v. City of Olmsted Falls, 395 F.3d 291, 315 n.15 (6th Cir. 2005) (internal quotation omitted). An employee acts in “bad faith” when they have “dishonest purpose,” engage in “conscious wrongdoing,” or breach a “known duty through some ulterior motive or ill will.” Frenchko v. Monroe, 160 F.4th 784, 805 (6th Cir. 2025) (quoting Rural Bldg. of Cincinnati, LLC v. Mercer, 96 N.E.3d 882, 888 (Ohio Ct. App. 2017)). The question of “[w]hether a government employee acted with the intent necessary to overcome the presumption of immunity is typically a jury question.” Post v. City of Munroe Falls, 861 F. App’x 69, 79 (6th Cir. 2021) (citing Chesher v. Neyer, 477 F.3d 784, 800, 802 (6th Cir. 2007)). Here, Pomesky argues that he is entitled to statutory immunity because he had a reasonable justification for investigating, charging, and arresting McDowell and because his actions were “authorized” under Ohio law. Appellant Br. at 19. But viewing the evidence in the light most favorable to McDowell, a reasonable jury could conclude that Pomesky’s actions nonetheless evinced malice or bad faith. Consider even just a few parts of the record that raise a material question as to whether Pomesky acted with an intent to harm McDowell or with a dishonest purpose. McDowell, for example, presented evidence that Pomesky’s decision to seek and enforce an arrest warrant was contrary to the police department’s policy for misdemeanor offenses. Various officers in the department—including Pomesky—could not identify a single instance in No. 26-3027, McDowell, et al. v. Pomesky their entire careers where misdemeanor charges had been handled in a similar manner. A reasonable jury could find that Pomesky deviated from the department’s arrest policy for the dishonest purpose of hampering or halting McDowell’s investigation into him by incarcerating her. Pomesky contends that he is entitled to immunity because his decision to arrest McDowell was supported by probable cause; he emphasizes that a prosecutor brought the charges and a judge signed off on the arrest warrant. See, e.g., Appellant Br. at 18–19. But Pomesky does not cite authority for the proposition that the presence of probable cause is, by itself, enough to guarantee immunity. Nor could he: The first element of a claim for abuse of process is “that a legal proceeding has been set in motion in proper form and with probable cause.” See Yaklevich v. Kemp, Schaeffer & Rowe Co., 626 N.E.2d 115, 118 (Ohio 1994). The premise of an abuse of process claim is that a process has been abused, not that it was illegal to invoke the process by proceeding without probable cause. The latter sounds in malicious prosecution, a distinct claim that Pomesky improperly conflates with abuse of process. See id. So if probable cause could confer statutory immunity, as Pomesky asserts, government employees would have immunity against all properly pleaded claims of abuse of process and could pursue malicious and bad faith actions with impunity. Next, Pomesky contends that because his actions were “authorized,” he is entitled to statutory immunity. This argument too is unavailing because it conflates two different legal questions. His argument rests on a footnote in Yaklevich, an Ohio Supreme Court case. Yaklevich explains the second element of an abuse of process claim, which requires that “the proceeding has been perverted to attempt to accomplish an ulterior purpose for which it was not designed.” Id. The footnote states: “Therefore, ‘there is no liability [for abuse of process] where the defendant No. 26-3027, McDowell, et al. v. Pomesky has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions.’” Id. at 118 n.2 (quoting Prosser & Keeton on the Law of Torts 898 (W. Page Keeton et al. eds., 5th ed.1984)). Pomesky reasons that because his conduct falls within that footnote’s safe harbor, he did not act with the malice or bad faith required to overcome immunity under § 2744.03(A)(6)(b). The problem for Pomesky is that Yaklevich addresses the merits (i.e., what makes the misuse of process tortious), whereas § 2744.03(A)(6)(b) addresses the official’s culpable state of mind for immunity purposes. Whether Pomesky “perverted” the criminal process is therefore not necessarily coextensive with whether he acted with malicious purpose or in bad faith in pursuing them. Indeed, as Yaklevich’s footnote itself suggests, a defendant can carry a legal process to its authorized conclusion but still have a dishonest purpose. See e.g., Buehner v. City of Cleveland, 788 F. Supp. 3d 827, 914, 921-22 (N.D. Ohio 2025) (holding that allegations of fabricated evidence rose to the level of bad faith or malice necessary to defeat statutory immunity but failed to establish abuse of process absent an ulterior purpose beyond securing a conviction). And here, a reasonable jury could find that Pomesky exercised otherwise lawful discretion for the dishonest purpose of protecting his job by discrediting and silencing McDowell. As noted, we do not consider whether such conduct satisfies the elements of abuse of process, so we express no view on the matter. See n.2, supra. The other cases Pomesky cites to demonstrate that he is entitled to immunity are inapposite. In Simon v. Mitchell, the court determined that an officer was entitled to immunity where the plaintiff cited nothing more than a “long history of disagreements” with the officer to defeat the presumption of immunity. 85 N.E.3d 470, 473 (Ohio Ct. App. 2017). But here McDowell’s allegations surpass mere disagreements; she alleged that Pomesky sought her arrest in order to No. 26-3027, McDowell, et al. v. Pomesky deter her from further engaging with Perry Township as to his ongoing employment, that his behavior was consistent with past retaliatory conduct, and that his decision to seek her arrest and incarceration deviated from his department’s standard operating procedure for handling misdemeanors. Pomesky also cites Day v. DeLong, but in that case, the arresting officer “did not have any prior contact” with the plaintiff, nor was “there any evidence to suggest that [the plaintiff’s] arrest was based on a dishonest purpose.” 358 F. Supp. 3d 687, 708 (S.D. Ohio 2019) (internal quotation marks omitted). By contrast, here, Pomesky and McDowell had extensive prior contact leading up to the conduct at issue, and McDowell alleged facts sufficient for a jury to find that Pomesky’s decision to investigate and arrest her was malicious or in bad faith. For these reasons, we affirm the district court’s denial of statutory immunity under Ohio Rev. Code Ann. § 2744.03(A)(6) as to the abuse of process claim against Pomesky. CONCLUSION For the foregoing reasons, we affirm the district court’s denial of statutory immunity and remand for further proceedings consistent with this opinion.