Cavanaugh v. McBride et al
OPINION AND ORDER granting 14 Motion for Summary Judgment. Signed by District Judge Thomas L. Ludington. (SGam)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 12-15463
Honorable Thomas L. Ludington
JAMES D. McBRIDE; MATTHEW J.
NOWICKI; and COUNTY OF OTSEGO,
OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
From January 1999 to March 2010, Nicholas Cavanaugh was employed by the County of
Otsego as a Sheriff’s Deputy. At all relevant times, James McBride was the Sheriff of Otsego
County, and Matthew Nowicki served as Undersheriff. Cavanaugh alleges that McBride and
Nowicki—and through them, Otsego County—retaliated against him for protected First
Amendment speech. Because Cavanaugh’s speech did not address a matter of public concern,
however, his claims are without merit, and the Defendants’ motion for summary judgment will
Cavanaugh began his employment with the Otsego County Sheriff’s Department (the
“Department”) on January 4, 1999. Between 1999 and 2010, Cavanagh was disciplined on
numerous occasions for unacceptable conduct. At other times, he was commended for conduct
that was anything but unacceptable. In their papers, the parties spend an inordinate amount of
time with Cavanaugh’s storied work history—Cavanaugh indicating he was a solid Sheriff’s
Deputy, the Defendants contending just the opposite—but that issue is not relevant to the
questions presented here.
So, although the parties would like to debate Cavanaugh’s
employment record, the Court will not, as it is unrelated to the primary question framed by the
Sometime in late 2008 or early 2009, Cavanaugh was elected president of his union,
representing primarily road-patrol deputies working for the Department. In January 2010, the
Department began requiring that all road patrol deputies be trained in the use of a “jump pack,” a
device capable of starting a car with a dead battery. After they were trained, the Department
required that all road patrol deputies use the jump packs to restart dead batteries in citizens’ cars.
Cavanaugh and his union did not approve.
On January 17, 2010, Cavanaugh sent
Nowicki a letter indicating that he, and the union, felt that requiring members to use the jump
packs was a “direct violation” of the terms of the collective bargaining agreement governing the
parties’ relationship. Defs.’ Mot. Ex. U, ECF No. 14. Cavanaugh did not explain precisely why
he and the union felt the use of jump packs violated the agreement. Nowicki responded the next
day and established that the Department would not budge on requiring the use of jump packs:
It is mandatory for every employee that received the original email from me dated
December 29th 2009, to receive the jump pack training and, once trained, to use
the jump packs when necessary. Your training, as you were informed by email, is
scheduled for Thursday, January 21st at 0600. You are ordered to be there.
Furthermore, upon receiving the training, you are ordered to perform the public
service of jump starting a citizen’s dead battery with said jump pack.
As addressed in the original email, jump starting a vehicle is a public service and
considered a motorist assist and part of your duties as a Deputy with the Otsego
County Sheriff’s Office.
Defs.’ Mot. Ex. V.
Seeing that the Department was not going to waiver on the issue, Cavanaugh filed a
grievance with the Police Officers’ Labor Council on January 21, 2010.1 In the grievance,
Cavanaugh complained that he was “ordered to attend training on 1-21-2010 @ 0600hrs. for the
use of portable car battery charging packs.
After completion of such training, Deputy
Cavanaugh was ‘ordered to perform the public service of jump starting a citizens dead battery
with said jump pack’ when situations arise.” Defs.’ Mot. Ex. T, at 1. Cavanaugh then indicated
how the issue should be settled: “Replacement and/or reimbursement of personal items that are
damaged, lost, or ruined by carrying out the above order[,]” and “For the administration of the
Otsego County Sheriff’s Office to rescind its order of ‘jump starting’ vehicles.” Id.
Four days later, Cavanaugh’s grievance was denied because “[t]he jump starting of
vehicles is a duty that has historically been conducted by P.O.L.C. unit members. It is the
administrations stance that it is a public service that the P.O.L.C. unit members have, and will
continue to perform.” Id. at 2. In March 2010, the Otsego County Board of Commissioners
issued a letter explaining why Cavanaugh’s grievance was denied:
The committee reviewed the current bargaining agreement between the County,
Sheriff, and the POLC Unit and found no language that prohibited the act of jump
starting a citizen’s vehicle. . . . The reimbursement and/or replacement of
personal items that are damaged or ruined by jump starting a vehicle would be
standard practice. The desired settlement of rescinding its order of “jump
starting” vehicles for all situations is denied. The County would note, the usual
caveat that there are particular instances where extenuating circumstances exist
and the officer reasonably feels there is an issue of safety in performing a duty
which may arise.
Defs.’ Mot. Ex. W, at 1.
Cavanaugh did not indicate on the grievance form that he was bringing a “class action” or an action on behalf of
his union. The Defendants conclude that the grievance was therefore filed on “[Cavanaugh’s] own behalf . . . .”
Defs.’ Mot. 6. Cavanaugh argues to the contrary: “The circumstances reveal that this grievance was on behalf of the
unit, addressing the unit’s concerns.” Pl.’s Resp. 3. Because the Court is reviewing the issue in the context of a
motion for summary judgment, the Court will assume that the grievance was brought by Cavanaugh on behalf of his
unit, just as he suggests.
While the jump-pack incident was winding down, another issue arose in March 2010.
Cavanaugh alleges in his complaint that prior to March 5, 2010, “Nowicki announced a change
in schedule for the deputies.”
Pl.’s Compl. ¶ 25, ECF No. 1.
You see, prior to the
announcement, deputies were assigned one of two twelve-hour shifts—6:00 a.m. to 6:00 p.m. or
6:00 p.m. to 6:00 a.m. Allegedly, “Nowicki had decided, with McBride’s approval, to change to
a 6:00 AM to 6:00 PM shift, followed by a 12:00 Noon to 12:00 Midnight shift.” Id. ¶ 27.
On March 5, 2010, Cavanaugh—in his capacity as union president—met with Nowicki to
discuss the scheduling change. According to Cavanaugh, he told Nowicki “that he believed the
schedule change was being implemented without properly following the procedure outlined in
the Collective Bargaining Agreement.” Id. ¶ 29. Cavanaugh expressed his intention to file an
“unfair labor practice claim with the MERC” if Nowicki went forward with the change. Id. ¶ 30.
Cavanaugh claims that he and Nowicki “decided that the union and the administration would
propose a schedule and have the proposed schedules ready to review over the weekend.” Id. ¶
But that is not what happened. On March 9, 2010, Cavanaugh was in the squad room
completing a vacation request form at the end of his shift. Also in the squad room was Jail Cook
Tim Hohl. After some polite conversation with Hohl, Cavanaugh opened the schedule book to
complete his vacation request. That is when he noticed “that the administration had gone ahead
and implemented the [new] schedule, contrary to the decision he and Nowicki had reached.” Id.
¶ 36. Cavanaugh did not approve. Still armed and in uniform, he said, “I could kill the boss.”
Id. ¶ 37.
Hohl authored a statement on March 9, 2010, in which he indicated that Cavanaugh’s
comment made him “really uncomfortable; the manner in which he was acting and talking
seemed very odd. I became very concerned for my superiors and wrote down exactly what was
said.” Defs.’ Mot. Ex. AA. Hohl was particularly concerned because Cavanaugh “was armed
and in uniform.” Id. Hohl made clear that he “definitely did not take [Cavanaugh’s] statement as
a joke or just blowing off steam.” Id.
Hohl then conferred with Corrections Officer Eric Pandell, who “was walking through
the room” when Cavanaugh said he could kill the boss. Id. Pandell also authored a statement on
March 9, 2010. He indicated that he heard Cavanaugh say “I should shoot the boss.” Defs.’
Mot. Ex. BB. Pandell was caught “off guard” by the statement, and after talking with Hohl
about it, Pandell “had to agree w/ Tim Hohl that it didn’t seem right that [Cavanaugh] should say
‘I should shoot the boss[.]’ ” Id. Pandell also agreed with Hohl “that someone who carries a gun
should not be making statemnents [sic] like deputy Cavanaugh did, even if he might of ment
[sic] it as a joke.” Id.
Based upon Hohl’s and Pandell’s statements, on March 9, 2010, McBride placed
Cavanaugh on paid administrative leave, “effective immediately, pending an internal
investigation.” Defs.’ Mot. Ex. CC. On March 17, 2010, McBride sent Cavanaugh a notice of
hearing and opportunity for review. See Defs.’ Mot. Ex. DD. The notice informed Cavanaugh
that an investigation revealed evidence supporting charges that he failed to carry out his
responsibilities as a Deputy for the Department, and that his conduct could subject him to
discharge. Id. at 1. The notice also indicated that Cavanaugh was “entitled to respond both in
writing and in person to the charges and receive a full review of the charges.” Id.
After a Loudermill hearing2 on March 19, 2010, Cavanaugh received a letter from
McBride dated March 26, 2010. In the letter, McBride indicated that the Department had
“carefully considered all of the information” gathered during the internal investigation, and that
Cavanaugh’s “employment with the Otsego County Sherriff’s Department is terminated
immediately. Your actions were of such a serious nature that continued employment is not
possible.” Defs.’ Mot. Ex. EE.
Cavanaugh filed a grievance after he was fired, but the County Grievance Committee
denied the grievance because Cavanaugh refused to answer questions about whether he made
statements concerning shooting or killing his boss. See Defs.’ Mot. Ex. FF, at 1–2. Although
Cavanaugh and his union pursued the grievance to arbitration, after an arbitration hearing on
January 10, 2011, the termination of Cavanaugh’s employment was sustained and his grievance
Cavanaugh then filed this suit on December 5, 2012.
His complaint alleges First
Amendment retaliation in violation of 42 U.S.C. § 1983. Cavanaugh indicates that he was
retaliated against “for engaging in union activities, including bringing a grievance that the ‘jump
training’ was not in conformance with the CBA and speaking out to Nowicki about violations of
the [CBA] in implementing the new schedule.” Pl.’s Compl. ¶ 99. Specifically, Cavanaugh
claims that the Defendants, “acting under color of law, retaliated by firing [him] and depriving
him of his job due to his exercising his free speech and right to assemble.” Id. ¶ 102. Currently
pending is the Defendants’ collective motion for summary judgment.
In Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985), the Supreme Court held that non-probationary civil
servants have a property right to continued employment, and such employment cannot be denied to employees
unless they are given an opportunity to hear and respond to the charges against them prior to being deprived of that
continued employment. Id. at 546.
Summary judgment is proper when there are no genuine issues of material fact and the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The focus must
be “whether the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty
Lobby, 477 U.S. 242, 251–52 (1986). All justifiable inferences from the evidence must be drawn
in the non-moving party’s favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986). “Entry of summary judgment is appropriate ‘against a party who fails to make
a showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.’ ” Walton v. Ford Motor Co., 424 F.3d
481, 485 (6th Cir. 2005) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
Cavanaugh’s complaint alleges First Amendment retaliation for essentially three
activities: bringing a grievance concerning use of the jump packs; speaking out to Nowicki about
violations of the CBA in implementing the new schedule; and assembling with his union and
participating in union activities. See Pl.’s Compl. ¶ 99. Each issue is addressed below.
A prima facie case of First Amendment retaliation pursuant to 42 U.S.C. § 1983 requires
the plaintiff to demonstrate the following three elements: (1) that he was engaged in
constitutionally protected activity; (2) that he was subjected to adverse action or deprived of
some other benefit; and (3) that the adverse action was motivated, at least in part, as a response
to the exercise of constitutional rights. Farhat v. Jopke, 370 F.3d 580, 588 (6th Cir. 2004)
(citing Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir. 2003)).
When the plaintiff is a
government employee, as here, “he must also demonstrate that his speech touched on matters of
public concern, and that his interest in commenting upon matters of public concern outweighed
the interest of the State, as an employer, in promoting the efficiency of the public services it
performs through its employees.” Van Compernolle v. City of Zeeland, 241 F. App’x 244, 248
(6th Cir. 2007) (brackets, ellipsis, and internal quotation marks omitted) (quoting Cockrel v.
Shelby Cnty. School Dist., 270 F.3d 1036, 1048 (6th Cir. 2001)). The purpose of the latter two
requirements “is to strike a proper balance between the employee’s right, as a citizen, to
comment on matters of public concern and the government’s legitimate interest, as an employer,
in regulating the speech of its employees as a means of efficiently providing public services
through its employees.” Van Campernolle, 241 F. App’x at 248–49 (collecting cases).
The threshold issue is whether Cavanaugh’s speech addressed a matter of public concern,
“which is a matter of law for the court to decide.” Id. at 249 (citing Garcetti v. Ceballos, 547
U.S. 410, 418–19 (2006); Brandenburg v. Housing Authority of Irvine, 253 F.3d 891, 897 (6th
Cir. 2001)). If Cavanaugh’s speech does not address a matter of public concern, “there is no
need to balance his interest in speech with the employer’s interest in efficiency, and
[Cavanaugh’s] claim must fail.” Van Campernolle, 241 F. App’x at 249 (citing Garcetti, 547
U.S. at 418–19). Matters of public concern are those that can “be fairly considered as relating to
any matter of political, social, or other concern to the community . . . .” Connick v. Myers, 461
U.S. 138, 146 (1983). “Whether an employee’s speech addresses a matter of public concern
must be determined by the content, form, and context of a given statement, as revealed by the
whole record.” Id. at 147–48.
The Sixth Circuit has established that speech is of “public concern” if “it involves issues
about which information is needed or appropriate to enable the members of society to make
informed decisions about the operation of their government.” Farhat, 370 F.3d at 590 (citing
Rodgers v. Banks, 344 F.3d 587, 596 (6th Cir. 2003)). “Such matters of public concern are to be
contrasted with internal personnel disputes or complaints about an employer’s performance.”
Brandenburg, 253 F.3d at 898.
Cavanaugh first argues that the Defendants retaliated against him because of the
grievance he filed concerning the jump-pack incident. But because Cavanaugh’s speech did not
relate to a matter of public concern, summary judgment is appropriate on this issue.
Cavanaugh claims that he filed the jump-pack grievance on behalf of his union, and thus,
the grievance involves “a matter of ‘public concern’ . . . .” Pl.’s Resp. 16. Specifically, he
claims that “filing a grievance on behalf of others, and on behalf of the union, would be in the
‘public interest’ such that it would be protected.” Id. In support of this argument, Cavanaugh
relies on Boals v. Gray, 775 F.2d 686 (6th Cir. 1985). He concludes: “If filing a grievance on
behalf of others in your union is not protected . . . it is not clear what union activity would be.”
Pl.’s Resp. 18.
Cavanaugh’s position is without merit.
To begin, Cavanaugh promotes a distorted
reading of Boals. The court in Boals did not hold that speech, simply because it is union-related,
touches on a matter of public concern. Instead, the court established that “an employee’s speech,
activity or association, merely because it is union-related, does not touch on a matter of public
concern as a matter of law.” Boals, 775 F.2d at 693 (emphasis added).
More recent Sixth Circuit cases have developed the principles originally established in
Boals. In Van Compernolle, the court held that “union-related activity on behalf of other
officers” was not a matter of public concern because the activity did not “encompass more than
internal personnel issues[.]” 241 F. App’x at 250. Thus, the activity was not “focused on issues
about which information is needed or appropriate to enable the members of society to make
informed decisions about the operation of their government.” Id. And, notably, although the
“union-related activity” concerned “issues [that] were shared by officers other than Van
Compernolle,” that did not mean those activities were matters of public concern. Id. Instead,
“[a] group effort to gain more overtime is no less an internal personnel dispute than if it were the
effort of one officer.” Id. Likewise, in Golembiewski v. Logie, 516 F. App’x 476 (6th Cir.
2013), the court established that an employee’s speech, activity, or association does not become
a matter of public concern “merely because it is union-related.” Id. at 477 (brackets omitted)
(quoting Akers v. McGinnis, 352 F.3d 1030, 1038 (6th Cir. 2003)). To warrant First Amendment
protection, union-related speech “must still involve a matter of public concern . . . .”
Golembiewski, 516 F. App’x at 478.
These principles, applied to Cavanaugh’s jump-pack grievance, establish that his speech
did not relate to a matter of public concern, regardless of the fact that it was union-related and
involved other employees. During his deposition, Cavanaugh confirmed that the basis of his
grievance was his belief that “as police officers or as [a] road patrol unit, [he] should not be
mandated to jump start vehicles.” Cavanaugh Dep. 109, attached as Defs.’ Reply Ex. A.
Although there has been some indication that Cavanaugh also wished to contest the training
officers received in using the jump packs, he testified that “there is nothing . . . in [the] grievance
report about [his] displeasure with who was providing the training.” Id. at 111. In fact,
Cavanaugh testified that his “grievance report only has to do with that [he] shouldn’t be required
to assist all motorists and should only be required to assist them in emergency situations.” Id.
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As he emphasized, “the sentiment of the grievance was [using jump packs is] not a law
enforcement duty.” Id. at 127. Just as was the case in Van Compernolle, Cavanaugh’s grievance
involves an “internal personnel dispute” that “advances only a private interest[,]” 241 F. App’x
at 249 (citations omitted), i.e., his complaint that road-patrol deputies should not be responsible
for certain job duties. Thus, Cavanaugh’s speech does not involve a matter of public concern.
Of course, although he does not argue as much in his response to the Defendants’ motion,
Cavanaugh could contend that his speech touches on a matter of public concern because it relates
to services that will be provided to public citizens. But this argument is foreclosed by Farhat:
“passing or fleeting references to an arguably public matter do not elevate the speech to a matter
of public concern where the focus or point of the speech advances only a private interest.” 370
F.3d at 592–93 (internal quotation marks omitted) (collecting cases). Cavanaugh’s real interest
was ensuring that he and other officers would not be responsible for jump starting cars under
certain circumstances; his speech did not involve “issues about which information is needed or
appropriate to enable the members of society to make informed decisions about the operation of
their government.” Farhat, 370 F.3d at 590.
The analysis concerning Cavanaugh’s speech related to his work schedule is identical.
Once again, Cavanaugh argues that his speech involved a matter of public concern simply
because it was union-related and was on the behalf of other officers. See Pl.’s Resp. 17–18. But,
again, speech does not involve a public concern simply because it relates to a union and is
advanced on behalf of others. Van Compernolle, 241 F. App’x at 250; Golembiewski, 516 F.
App’x at 477–78.
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Even more than his jump-pack grievance, Cavanaugh’s speech related to the deputies’
work schedules is an internal personnel dispute that advances only a private interest: when he
and others would have to report to work. In his deposition, Cavanaugh made clear that despite
the shift change, there would still be “a 24 hour patrol[,]” Cavanaugh Dep. 129, so the public
would not be affected in any way by the change to the deputies’ hours. Indeed, Cavanaugh
testified that “the concern with th[e] proposed [schedule] change” was that “it would have meant
less days off so the deputies that had children would have to coordinate child care” and “we have
grown accustomed for the last couple years being on 12 hour shifts and liked having the time off
quite frankly.” Id. at 131.
As this testimony makes clear, Cavanaugh’s statements concerning the proposed
schedule change did not “involve issues about which information is needed or appropriate to
enable the members of society to make informed decisions about the operation of their
government[,]” Farhat, 370 F.3d at 590 (citation omitted), but instead related to internal
personnel disputes that are not relevant to the public. Summary judgment is warranted here as
Finally, Cavanaugh alleges that he was retaliated against simply because he was a union
member engaged in union activities.
As established by Boals, there is “no doubt that an
employee who is disciplined solely in retaliation for his membership in and support of a union
states a valid first amendment claim under Connick and Pickering.” 775 F.2d at 693 (citations
omitted). Although association claims are slightly different than those relating to protected
speech, the Sixth Circuit has established that there is “no logical reason . . . for distinguishing
between speech and association in applying [the public concern test] to first amendment claims,
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including union activities claims.” Monks v. Marlinga, 923 F.2d 423, 425 (6th Cir. 1991) (citing
Boals, 775 F.2d at 692). Accordingly, to succeed on this association claim, Cavanaugh’s unionaffiliated activities must have related to a matter of public concern. See Monks, 923 F.2d at 425;
see also Orr v. Trumbull Cnty., 77 F. Supp. 2d 853, 858 (N.D. Ohio 1999) (“the Court must
determine whether the Plaintiff’s associational activities touched upon a matter of public concern
or were of purely personal interest.”).
The only union activities Cavanaugh presents are the two discussed above—which do not
touch upon matters of public concern—and the fact that he filed a grievance on behalf of Trevor
Winkle. As to the third event, Cavanaugh testified during his deposition that the grievance
related to Winkle’s “work scheduling” and “his overtime issue,” Cavanaugh Dep. 74, which are
both matters of private interest, certainly not public concern. Whether Nowicki and McBride
“had animus towards persons acting as the Union President,” Pl.’s Resp. 15, is not relevant
unless Cavanaugh’s actions as union president related to matters of public concern. They did
not. So Cavanaugh’s claim is without merit.
Discussed above, Cavanaugh has not demonstrated that either McBride or Nowicki
violated his First Amendment rights. Because he has failed to demonstrate a constitutional
violation, Cavanaugh cannot overcome the individual defendants’ defense of qualified immunity
with respect to being sued in their individual capacities. Anderson v. Ravenna Twp. Fire Dep’t,
159 F. App’x 619, 626 (6th Cir. 2005) (citation omitted); Gragg v. Kentucky Cabinet for
Workforce Dev., 289 F.3d 958, 964 (6th Cir.2002) (in order to “prevail against a defense of
qualified immunity a plaintiff must first establish the constitutional right that she claims was
violated by the defendants.”).
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As to the claims against McBride and Nowicki in their official capacities, those claims
are duplicative of the claim against Otsego County. As established in Leach v. Shelby Cnty., 891
F.2d 1241 (6th Cir. 1989), a suit against officers of a county “in their official capacities is . . .
essentially and for all purposes, a suit against the County itself.” Id. at 1245–46; see also Petty v.
Cnty. of Franklin, Ohio, 478 F.3d 341, 349 (6th Cir. 2007) (“To the extent that [the plaintiff’s §
1983] suit is against [the sheriff] in his official capacity, it is nothing more than a suit against
Franklin County itself.” (emphasis in original)); Kentucky v. Graham, 473 U.S. 159, 166 (1985)
(“[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the
entity.”)). Thus, because Cavanaugh has raised claims against Otsego County, the claims against
McBride and Nowicki in their official capacities are duplicative and will be dismissed. See
Swartz Ambulance Serv., Inc. v. Genesee Cnty., 666 F. Supp. 2d 721, 726 (E.D. Mich. 2009)
(“claims brought against Genesee Board of Commissioners and individual Commissioners . . .
are duplicative of the claim against Genesee County because official capacity suits are the
equivalent of a suit against the municipality.”).
And finally, because Cavanaugh has not demonstrated that McBride or Nowicki violated
his constitutional rights, his claims against Otsego County are also without merit and must be
dismissed. As Cavanaugh acknowledges in his response, to hold a municipality liable under §
1983, he “must establish that [the] municipality’s official policy or custom caused a
constitutional violation.” Pl.’s Resp. 24 (citing Monell v. Dept. of Social Servs. Of the City of
New York, 436 U.S. 658 (1978)).
Because such an unconstitutional act is lacking here,
Cavanaugh’s claims against Otsego County itself are without merit. See Wilson v. Morgan, 477
F.3d 326, 340 (6th Cir. 2007) (“There can be no Monell municipal liability under § 1983 unless
there is an underlying unconstitutional act.” (citation omitted)); Ewolski v. City of Brunswick,
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287 F.3d 492, 516 (6th Cir. 2002) (“Where, as here, a municipality’s liability is alleged on the
basis of the unconstitutional actions of its employees, it is necessary to show that the employees
inflicted a constitutional harm.” (collecting cases)).
Cavanaugh’s inability to demonstrate a constitutional violation is fatal to his claims
against all three Defendants, and summary judgment is appropriate on all of his claims.
Accordingly, it is ORDERED that the Defendants’ motion for summary judgment, ECF
No. 14, is GRANTED.
It is further ORDERED that Plaintiff’s complaint, ECF No. 1, is DISMISSED with
prejudice. This is a final order and closes the case.
Dated: January 9, 2014
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing
order was served upon each attorney or party of record
herein by electronic means or first class U.S. mail on
January 9, 2014.
s/Tracy A. Jacobs
TRACY A. JACOBS
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