Klen et al v. Loveland, City of, The, Colorado et al
OPINION AND ORDER DENYING SUPPLEMENTAL MOTION FOR PARTIAL SUMMARY JUDGMENT: IT IS THEREFORE ORDERED that (1) Defendants' Supplemental Motion for Summary Judgment on First Amendment Retaliation Claim 158 is DENIED. by Judge Marcia S. Krieger on 6/18/12.(msksec, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger
Civil Action No. 07-cv-00347-MSK
EDWARD J. KLEN;
STEPHEN J. KLEN;
DIVERSE CONSTRUCTION, INC., a Colorado corporation; and
HOLSTEIN SELF-SERVICE STORAGE, LLC, organized under Colorado law,
THE CITY OF LOVELAND, COLORADO, a Colorado Municipal Corporation;
THOMAS HAWKINSON, City of Loveland Building Official, in his individual and official
GREG GEORGE, City of Loveland, Community Services Director, in his individual and
JOHN R. DUVAL, City of Loveland Attorney, in his individual and official capacities; and
DAVID SPRAGUE, City of Loveland Plans Reviewer, in his individual and official
OPINION AND ORDER DENYING SUPPLEMENTAL MOTION FOR PARTIAL
THIS MATTER comes before the Court on the Defendants’ Supplemental Motion for
Partial Summary Judgment on First Amendment Retaliation Claim (#158) and the Plaintiffs’
Brief in Support of Presenting All Remaining Claims to the Factfinder (#157).
This case1 went to the Tenth Circuit on a Summary Judgment ruling issued by another
The Plaintiffs’ Complaint alleged numerous constitutional violations with regard to their
efforts to obtain a building permit, including deliberate delay, unreasonable requirements,
solicitation of illegal and extortionate fees, selective prosecution against the Plaintiffs for
building without a permit; use of perjured statements in criminal ordinance violation
proceedings, retaliation for the Plaintiffs’ exercise of their First Amendment rights, forgery of
the Plaintiffs’ permit application to facilitate a wrongful prosecution, and trespass by a building
judge.2 The Tenth Circuit affirmed the summary judgment decision in part, reversed it in part,
and remanded to this court for further proceedings.3 The case was then reassigned to the
undersigned. Because the Tenth Circuit’s decision did not address all of the issues raised in the
original motions, the parties were given the opportunity to provide additional briefing as to those
issues. Thus the Defendants’ Motion supplements their prior Motions for Summary Judgment
(## 97, 98, 99, 100, 101 & 102).
Having considered the Defendants’ Motion, Plaintiffs’ Brief, the briefs filed in
connection with the original Motions for Summary Judgment, and the Klen decision, the Court
FINDS and CONCLUDES the following.
According to a submission from the parties (#145), the following claims are outstanding
First Amendment Retaliation (presented as the fifth claim for relief) by Plaintiffs
Holstein Self-Service Storage, LLC, Diverse Construction, Inc., Edward Klen,
and Stephen Klen against Defendants City of Loveland, Community Services
Director Greg George, Building Official Thomas Hawkinson, City Attorney John
Duval, and Plan Reviewer David Sprague.
Violation of Due Process (conviction based on false evidence) (presented as the
The case was initially assigned to Senior Judge Richard P. Matsch who granted the
Defendants summary judgment in favor of the Defendants on all the federal claims and declined
to exercise jurisdiction over the state law claims.
Klen v. City of Loveland, 661 F.3d 498 (10th Cir. 2011).
fourth claim for relief), by Plaintiff Edward Klen against Defendant City of
Violation of Fourth Amendment (illegal search) (presented as the sixth claim for
relief), by Plaintiffs Edward Klen and Stephen Klen against Defendant City of
The Defendants’ Supplemental Motion seeks summary judgment in favor of the
individual Defendants on the First Amendment retaliation claim. The Defendants argue that the
Plaintiffs’ evidence is insufficient as a matter of law to establish the elements of the claim as to
each individual Defendant. The Plaintiffs disagree, and contend that there is at least an issue of
fact in this regard.
For the purposes of resolving the summary judgment issue the material facts are
construed in the light most favorable to the Plaintiffs, the non-moving parties. The background
of the dispute is concisely explained in the Tenth Circuit’s opinion in Klen, 661 F.3d at 501-503:
Plaintiffs Ed Klen and Stephen J. Klen are partners in plaintiff
Holstein Self–Service, LLC (Holstein). They are also shareholders
in plaintiff Diverse Construction, Inc. (Diverse). Holstein owns
land in Loveland known as Anasazi Park, which it contracted with
Diverse to develop.
In 2003, plaintiffs completed construction of a commercial project
in Anasazi Park known as “Phase 1.” Early in 2004, they began the
process of obtaining City approval for a new commercial project in
Anasazi Park, known as “Phase 2.” Plaintiffs had two potential
anchor tenants lined up for Phase 2: a martial arts studio (the
“Oriental School of Mudu”), and a shooting range.
Contractors who construct buildings within the City must obtain
approval for their structures. The City approves various phases of
industrial construction in incremental stages by granting permits,
inspecting work performed pursuant to these permits, and granting
final approval based on successful inspection results. The City
makes available several different types of building permits with
differing requirements and different time frames for issuance.
“Footing and foundation” permits allow a builder to pour the
concrete foundation and footings for a building. “Core and shell”
permits allow the builder to construct the core and shell of the
structure. “Tenant finish” permits allow completion of the building
so that it may be occupied by tenants. Finally, “special use”
permits are used where the builder intends to use a building for a
purpose not permitted by existing zoning.
Anasazi 2 was not zoned for a martial arts studio or a firing range.
Accordingly, when plaintiffs submitted their building permit
application on July 6, 2004, they filed for both a tenant finish
permit (allowing them to complete the structure from start to
finish) and a special use permit. According to plaintiffs, defendant
Thomas Hawkinson, the City’s permit coordinator, suggested to
them that things might move faster if they withdrew their
application for a tenant finish and special use permit, and simply
filed instead for a core and shell permit to get started on the
building. This was because, under the City's municipal ordinances,
plaintiffs could obtain a core and shell permit by right, whereas the
City had discretion concerning whether to issue a special use
permit and would impose strict requirements before issuing such a
permit. Hawkinson's seemingly reasonable suggestion would lead
to no end of trouble as things progressed.
Even now, there is considerable factual disagreement between the
parties about the nature of the permit plaintiffs actually sought and
the delays they endured in obtaining it. . . . . [W]e will assume for
purposes of summary judgment analysis that it was the core and
shell permit that was delayed.
The Plaintiffs contend they suffered unreasonable delays, and that when they complained,
Defendants George, Hawkinson, Duval and Sprague retaliated by creating further delays,
unreasonably withholding approval of permit elements, issuing stop work orders and citations,
illegally inspecting the property, and other adverse actions.
Based on assurances from City officials that the core and shell permit would issue within
six to eight weeks, the Plaintiffs applied for and obtained a construction loan, anticipating that
construction would begin around September 2004. On August 12, 2004, they resubmitted to the
City their plans for a core and shell permit and began preliminary site preparation.
However, the aforementioned delays soon began. On September 14, 2004, David
Sprague, a plan reviewer for the City, told the Klens he would not approve the Plaintiffs’ permit
application unless they submitted mechanical, plumbing, and electrical drawings. Plaintiffs
disagreed that such drawings were needed because they concerned tenant finishes, which were
not part of the core and shell permit. According to the Plaintiffs, sometime in September 2004,
perhaps in that same interaction, Ed Klen confronted Sprague, accusing him of not even looking
at the permit application, since it was clearly marked as a core and shell permit. He asked
Sprague why he was lying and also demanded to know “what the hell was going on” in the
building department. #45, at ¶ 56. In October 2004, Stephen Klen again confronted Mr. Sprague
and complained of Mr. Sprague’s treatment; both Klens also apparently questioned the
competence of both Sprague and Hawkinson, asking, “when the hell are you going to get your
shit together in this department?” #45, at ¶ 62.
The Plaintiffs closed on their construction loan in November, 2004. Around the same
time, they had several meetings with Mr. Hawkinson in an effort to determine when they could
expect the permit. Plaintiffs contend on December 1, 2004, Mr. Hawkinson told them that they
could proceed with some foundation work even without a permit; there is evidence that the City
routinely permitted builders to do some work before permits were issued.
Nonetheless, on December 28, 2004, despite his prior verbal approval for work to
commence, Mr. Hawkinson issued a stop work order (SWO). The next day, the Plaintiffs met
with Mr. Hawkinson and Mr. Sprague about their permit and the SWO. This meeting was again
confrontational. The Plaintiffs discovered that Mr. Sprague had been reviewing the original
tenant finish plans submitted in July 2004, and claimed never to have received the core and shell
plans the Plaintiffs had submitted in August 2004. The Klens contend that as a result of this
meeting Mr. Hawkinson told the Klens that they could continue working despite the SWO.
There continued to be issues delaying the project. Around the same time, in December
2004, a surveyor informed the Klens that “a ‘ghost line’ which had been added to the [Anasazi]
Phase I plat at the City’s request had somehow been transformed by Larimer County into a
property line.” Klen, 661 F.3d at 504. The Plaintiffs assert that the City customarily allowed
contractors to resolve such issues a memorandum of understanding, whereby a temporary permit
would be issued while the plat was corrected. The City initially agreed to using this approach.
However, around March 18, 2005, City Attorney John Duval informed the Klens’ attorney that
he was rejecting the memorandum of understanding regarding the plat “ghost line” problem.4
On March 25, 2005, the Klens met with City manager Don Williams to complain about
Mr. Duval and Mr. Hawkinson; during this meeting, Ed Klen called Mr. Duval a “boob” and said
Mr. Hawkinson “was acting like an ‘asshole’ in running his department.” #45, at ¶ 86.
According to the Plaintiffs, Williams terminated the meeting, warning them “you're big boys and
you know what you are getting into.” When they later met with Mr. Hawkinson, he stated “so
I’m an asshole, huh? We’ll see about that.” #45, at ¶ 88. In addition, two days after the meeting
with City manager Williamson, Mr. Duval cancelled without explanation a mandatory
Mr. Duval later informed the Klens that the plat issue could only be resolved by
obtaining affidavits of correction from all the affected landowners. The Plaintiffs complied with
this requirement around May 9, 2005.
neighborhood meeting required for their special review permit.
On March 29, 2005, the Klens went to the Building Division and reviewed a printout of a
log showing progress notes on the project; they discovered that their plans had not been
reviewed since September 14, 2004. The Klens apparently loudly expressed their “disgust” for
how the division was managed. They were immediately called into Mr. Hawkinson’s office; Mr.
Hawkinson there handed Ed Klen a citation for continuing work in violation of an SWO.
In April 2005, Mr. Sprague, the plan reviewer, sent the Plaintiffs a letter stating that he
had the resubmitted plans but that the Klens had to submit new elevation architectural drawings.
When the Plaintiffs protested that they had already submitted identical elevations with their
original plans, Mr. Sprague told them he needed the documents stamped by their engineering
firm. The Plaintiffs contend this was an unnecessary requirement but nonetheless complied with
it. In addition, in May 2005, an official with the City Water Department told the Klens that they
would have to resubmit the water taps on their plans to show two three-quarter inch, rather than
one, one-inch, tap. The Plaintiffs also contend that this was a completely unnecessary
requirement but that they complied with it, delivering the new plans on May 23, 2005 and then
again on June 3, 2005 after the Water Department claimed not to have received them.
On May 17, 2005, the Klens examined another log printout pertaining to their project and
came to the conclusion that the log had been tampered with. They became loudly irate, and were
called into Mr. Hawkinson’s office, where Mr. Hawkinson attempted to serve twenty-one
citations on Ed Klen, including tickets for working without a permit.
Another delay resulted from the issue of capital expansion fees (CEFs). The Klens were
told that these fees needed to be paid before they could receive the permit. They disputed this,
asserting that under the applicable municipal ordinance CEFs were not due until final inspection
for a certificate of occupancy, which would not be issued until the tenant finish was complete.
The Plaintiffs paid the fees under protest, which were much higher than originally quoted. On
June 13, 2005, during a dispute about the CEFs, Steve Klen asked Mr. Hawkinson, “what kind of
idiot are you, if you can’t even run your own goddamned department?” #45, at ¶ 135. Two days
later, during a meeting with Mr. Duval, Mr. Duval told them they had “made a, ‘slap in the face
of authority,’ ” for which they must pay.” #107-3, at ¶ 41.
On June 16, 2005, the core and shell permit finally issued. By that time, the City had
issued a total of nearly sixty citations to Ed Klen for working without a permit or in violation of
the SWO, discussed above.5 The Plaintiffs contend these citations were issued in retaliation for
their protected speech expressing anger and frustration at the permitting process.
On May 3, 2006, the Plaintiffs served the Defendants with their notice of intent to sue.
Eight days later, a City building inspector, Richard Hoskinson, entered the premises of Anasazi
Phase 2 without a warrant or consent from the Plaintiffs. The Plaintiffs contend that Mr. George,
the Community Services Director and Mr. Hawkinson’s supervisor, later told them that Mr.
George, Mr. Duval and Mr. Hawkinson had sent Hoskinson to conduct the inspection. The
Plaintiffs and the City disputed whether the building code permitted an unannounced inspection.
The Plaintiffs attempted to get an interpretative ruling on the issue from the construction
advisory board and thereafter to petition City Council regarding whether City building inspectors
The citations were ultimately resolved in Loveland Municipal Court pursuant to a plea
agreement but not without further issues, including Mr. Duval allegedly submitting a false
affidavit executed by Mr. Hawkinson and Mr. Duval and the Klens getting into a verbal
altercation about the plat issue.
could enter the premises without notice or permission. The Plaintiffs contend that Mr. Duval
prevented them from having the construction advisory board hear the issue, although it is not
clear how he effected this.
Plaintiffs claim that the City continued its retaliatory actions against them for years after
the permit issued. They assert that Mr. Hawkinson improperly denied them a certificate of
occupancy for the property in 2008; in addition, in June 2009, when the lessee of the firing range
gave up the lease and the Klens took over the operation, City manager Williams ordered
Loveland police officers to stop using the range in order to deny the Klens the City's business.
Standard of Review
Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if
no trial is necessary. See White v. York Intern. Corp., 45 F.3d 357, 360 (10th Cir. 1995).
Summary adjudication is authorized when there is no genuine dispute as to any material fact and
a party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Substantive law governs
what facts are material and what issues must be determined. It also specifies the elements that
must be proved for a given claim or defense, sets the standard of proof and identifies the party
with the burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Kaiser-Francis Oil Co. v. Producer’s Gas Co., 870 F.2d 563, 565 (10th Cir. 1989). A factual
dispute is “genuine” and summary judgment is precluded if the evidence presented in support of
and opposition to the motion is so contradictory that, if presented at trial, a judgment could enter
for either party. See Anderson, 477 U.S. at 248. When considering a summary judgment
motion, a court views all evidence in the light most favorable to the non-moving party, thereby
favoring the right to a trial. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213 (10th Cir.
When the moving party does not have the burden of proof at trial, it must point to an
absence of sufficient evidence to establish the claim or defense that the non-movant is obligated
to prove. If the respondent comes forward with sufficient competent evidence to establish a
prima facie claim or defense, a trial is required. If the respondent fails to produce sufficient
competent evidence to establish its claim or defense, the claim or defense must be dismissed as a
matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
First Amendment Retaliation - Elements
To establish a claim of retaliation in violation of the exercise of First Amendment rights
under § 1983, a plaintiff must plead and prove (1) that he was engaged in a constitutionally
protected activity; (2) that the defendant’s action caused him to suffer an injury that would chill a
person of ordinary firmness from continuing to engage in that activity; and (3) that the
defendant’s action was substantially motivated as a response to the plaintiff’s exercise of his
First Amendment speech rights. Becker v. Kroll, 494 F.3d 904, 925 (10th Cir. 2007).
The second element is evaluated under an objective standard; therefore, the Plaintiffs
need not demonstrate that they were actually deterred from engaging in constitutionally
protected activity. Smith v. Plati, 258 F.3d 1167, 1177 (10th Cir. 2001). An action that is
otherwise permissible or authorized may nonetheless support a claim for retaliation if it is taken
in order to retaliate and suppress speech. Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir.
The establish third element, substantial motivation, a plaintiff must come forward with
some evidence linking the defendant’s action to the plaintiff’s speech; a defendant’s knowledge
of the protected speech, together with close temporal proximity between the speech and
challenged action, may be sufficient. Maestas v. Segura, 416 F.3d 1182, 1188-89 (10th Cir.
2005) (examining “substantial motivation” for the purposes of a public employee’s retaliation
claim). However, mere speculation and “hunches” are inadequate. Id.
As noted above, the Tenth Circuit in Klen determined that the Plaintiffs’ complaints and
criticisms6 could amount to constitutionally protected speech sufficient to establish the first
element of the claim. However, the Defendants contend that the Plaintiffs’ evidence is
insufficient to make a prima facie showing of the second (action that would chill a person of
ordinary firmness from engaging in protected speech) and third (retaliation as substantial
motivation for taking the action) elements of the claim with respect to each individual
a. Injury that would chill a person of ordinary firmness
As noted above, Mr. Duval is the City Attorney for the City of Loveland. It is not
entirely clear what the Plaintiffs rely upon for the second element of the claim against Mr. Duval
(adverse action taken in retaliation for engaging in protected speech). It appears there are
several possibilities: (1) Mr. Duval cancelling the community meeting two days after Edward
Klen told City Manager Williams that Mr. Duval was a “boob”; (2) requiring the Plaintiffs to
The Court will assume without deciding that all instances of speech by the Klens was
made in their personal capacity as well as in their representative capacity for the two entity
obtain affidavits from property owners before authorizing the permit instead of allowing
Plaintiffs to continue working while resolving the plat issue; (3) prosecuting Edward Klen for
working without a permit; (4) sending a City inspector to inspect the building site without
permission or notice; or (5) preventing the Klens from raising their dispute regarding the May
2006 inspection with the construction advisory board or City Council.
With respect to the first of these possibilities, there is no evidence demonstrating any
injury that resulted from Mr. Duval’s cancellation of the community meeting. The Plaintiffs say
that the meeting was “mandatory,” but there is no evidence that shows a particular adverse effect
on the processing of Plaintiffs’ permit or other aspects of the project due to its cancellation.
Given the absence of any indication of hardship, inconvenience, or burden, this action does not
amount to an injury that would chill a person of ordinary firmness from continuing to exercising
his or her First Amendment rights.
The second action was Mr. Duval’s rejection of the memorandum of understanding and
requirement that Plaintiffs obtain affidavits from property owners to correct the plat before
allowing the permit to issue. Given that this could have extended the delay in the issuance of the
permit, and the delay had economic consequences for the Plaintiffs, a reasonable jury could find
that such an action resulted in an injury to the Plaintiffs that would chill a person of ordinary
firmness from criticizing City officials for the problems associated with the issuance of the
The third action was Mr. Duval’s prosecution of Ed Klen for working without a permit
and/or violating the stop work order. However, Judge Matsch concluded and the Tenth Circuit
affirmed, under the doctrine of prosecutorial immunity, Mr. Duval cannot be individually liable
for any claim arising from his prosecution of Ed Klen in a judicial proceeding. Klen, 661 F.3d at
515. Therefore, this action cannot support a retaliation claim against Mr. Duval.
The next action was Duval’s decision to send an inspector to the Klen’s property. This,
the Klens contend resulted in trespass on their property, an abstract and technical injury. The
evidence that Mr. Duval was involved in this decision is not strong, but giving the Klens the
benefit of all favorable inferences, his participation in the decisionmaking resulted in an injury
that could chill a person of ordinary firmness from continuing to complain about the Defendants’
conduct and to initiate legal proceedings.
Finally, the Plaintiffs assert that Mr. Duval prevented them from obtaining an decision
from the construction advisory board about whether the building code authorized an
unannounced inspection. There are several problems with this assertion. First, there is no
evidence that Mr. Duval was responsible for the board’s refusal to hear the issue; the evidence
only shows that Mr. Duval’s assistant informed the Plaintiffs that the board would not hear the
issue, not that Mr. Duval had any role in such decision. In addition, there is no evidence of any
particular injury that resulted from the board’s decision. Thus, the evidence is insufficient to
show that Mr. Duval caused an injury that would chill a person of ordinary firmness from
continuing to engage in protected First Amendment activity.
b. Evidence that retaliation was substantial motivation in taking the action
Focusing on actions by Mr. Duval that could have caused injury actions– rejection of the
memorandum of understanding and some role in instructing Mr. Hoskinson to inspect the
Plaintiff’s property– the question is whether there is evidence sufficient to raise an inference that
he was substantially motivated by a desire to retaliate against the Plaintiffs for their complaints
and criticisms of the City and their initiation of this lawsuit.
As to rejection of the memorandum of understanding, the only protected speech made by
the Plantiffs is found in verbal confrontations between the Klens and Mr. Sprague and Mr.
Hawkinson. There is no evidence that Mr. Duval was aware of what the Plaintiffs said. The only
statements directed at Mr. Duval–calling Mr. Duval a “boob”–occurred after he rejected the
memorandum of understanding. Thus, there is no evidence from which a reasonable jury could
infer that Mr. Duval’s motivation in rejecting the memorandum of understanding related to
anything that the Plaintiffs said. Plaintiffs offer some evidence that, construed most favorably to
them, could show that Mr. Duval may have developed some animosity toward them later in the
process7, but there is nothing to indicate that at the time Mr. Duval rejected the memorandum of
understanding he did so out of a desire to retaliate against the Klens for their confrontations with
and criticisms of City employees. Therefore, although the rejection of the memorandum of
understanding may have been adverse, there is insufficient evidence to show that Mr. Duval was
motivated by the Plaintiffs’ speech.
In contrast, Mr. Duval’s authorization of the inspection occurred after an extended period
of dispute between the Plaintiffs and the City, which included personal confrontations between
the Klens and Mr. Duval. In addition, the inspection occurred approximately a week after the
Plaintiffs served notice of their intent to sue. Given the history and close temporal proximity
between these two events, there is sufficient evidence from which a jury could reasonably infer
that Mr. Duval’s action was substantially motivated by a desire to retaliate against the Plaintiffs.
For example, at a meeting several months later, on June 13, 2005, Mr. Duval supposedly
said that the Klens would have to pay for their “slap in the face of authority,” but again this
occurred months after the alleged retaliatory action occurred.
Because the Plaintiffs have evidence that could carry their burden of proof as to the
second and third elements of the claim against Mr. Duval, summary judgment is denied.
However, Plaintiff’s claim is limited to Mr. Duval’s actions in directing/authorizing the
a. Action that would chill a person of ordinary firmness
Mr. Sprague was the plan reviewer for a portion of the plans for Plaintiffs’ permit
application. The Plaintiffs resubmitted their core and shell application in mid-August 2004, but
Mr. Sprague did not approve his portion of the project until May 11, 2005. It appears that this
claim is based entirely on the delay in Mr. Sprague’s review the requirements he imposed during
the approval process. Construing the evidence most favorably to the Plaintiffs, the delays and
requirements could amount to an injury that would chill a person of ordinary firmness from
continuing to engage in speech critical of the City and its employees.
b. Evidence that retaliation was a substantial motivation in taking the action
The next question is whether there is evidence that, if credited, would permit a jury to
find that the Mr. Sprague’s delay and requirements were motivated by a retaliatory motive. The
Klens submitted their plans in August 2004 and met with Mr. Sprague in September and October
2004. During these meetings, the Klens used some abusive language toward Mr. Sprague,
accusing him of lying about what additional documentation was needed and repeatedly accusing
him of incompetence. In March 2005, the log showed that no review had been conducted on the
plans since the prior September 2004. Given the temporal proximity between the Plaintiffs’
complaints about Mr. Sprague’s conduct and the cessation of work on the Plaintiffs’ permit
application, and the apparently unreasonable additional requirements imposed on the Plaintiffs
following their complaints, a reasonable jury could infer that this conduct was in retaliation for
the Klens’ criticisms. Therefore, summary judgment is denied as to the First Amendment
retaliation claim asserted against Mr. Sprague.
a. Action that would chill a person of ordinary firmness
Mr. Hawkinson was the official responsible for issuing permits. Construing the evidence
most favorably to the Plaintiffs, following numerous disputes with Mr. Hawkinson and having
vehemently voiced complaints about the delays and roadblocks in receiving their permit, he
issued a stop work order and, thereafter, numerous citations to Ed Klen. He did this despite
telling the Plaintiffs that they could do some work while waiting for the permit to issue. This
evidence is sufficient to establish an injury that would chill a person of ordinary firmness from
continuing to engage in criticism of the City and its employees.
b. Evidence that retaliation was substantial motivation in taking the action
The Plaintiffs’ evidence shows that the stop work order and earliest citation were issued
in December 2004, following confrontations between the Klens and Mr. Hawkinson in October
and November 2004. The temporal proximity between Mr. Hawkinson’s actions and the heated
confrontations by the Klens could give rise to an inference that he acted in retaliation for the
Klens’ criticisms and complaints. In addition, citations were issued after the March 2005
meeting after which Mr. Hawkinson stated to the Klens, “so I’m an asshole, huh? We’ll see
about that.” This statement could give rise to an inference that Mr. Hawkinson was angered by
the Klens’ disparagement of him and intended to take action in retaliation.
Because there is evidence from which a jury reasonably could find in the Plaintiffs’ favor
as to the second and third elements of the First Amendment retaliation claim as to Mr.
Hawkinson, summary judgment is denied as to Mr. Hawkinson.
a. Action that would chill a person of ordinary firmness
Mr. George is the Community Services Director and Mr. Hawkinson’s supervisor.
Again, it is somewhat unclear what allegedly retaliatory actions the Klens contend that he took.
It appears the following are possibilities: (1) instructing Hoskinson to inspect the Plaintiffs’
premises in 2006; and (2) implementing a plan in 2007 to strip the construction advisory board
of its power to interpret the building code.
As noted above, the unauthorized inspection resulted in a technical injury that could chill
a person of ordinary firmness from continuing to complain about the Defendants’ conduct and to
initiate legal proceedings.
With respect to stripping the construction advisory board of its authority to interpret the
building code, however, the Plaintiffs have not offered any argument or evidence as to how this
caused them any injury. Accordingly, this alleged adverse action does not support the Plaintiffs’
b. Evidence that retaliation was substantial motivation in taking the action
Focusing only on action taken by Mr. George was sending an inspector to inspect the
Klens’ construction, there is sufficient evidence in the record, which if credited, could support an
inference that he was substantially motivated by a desire to retaliate. Although the inspection
occurred nearly a year after many of the initial confrontations regarding the permit, it occurred a
week or so after the Klens notified Mr. George and the other individual defendants of their intent
to sue. This close temporal proximity between this protected speech and the alleged adverse
action could give rise to an inference that Mr. George acted with a retaliatory motive. Therefore,
summary judgment is denied as to Mr. George on the First Amendment retaliation claim.
However, the claim is limited to the action by Mr. George with regard to the inspection.
IT IS THEREFORE ORDERED that
Defendants’ Supplemental Motion for Partial Summary Judgment on First
Amendment Retaliation Claim (#158) is DENIED.
Dated this 18th day of June, 2012
BY THE COURT:
Marcia S. Krieger
United States District Judge
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