Hazel v. Quinn
Filing
28
OPINION and ORDER Rejecting 25 REPORT AND RECOMMENDATION,Sustaining 26 Objection to Report and Recommendation, Denying 20 MOTION for Summary Judgment filed by Brian Quinn, Vacating Order of Reference 4 and Scheduling Status Conference. ( Status Conference set for 4/1/2013 04:30 PM before District Judge David M. Lawson) - Signed by District Judge David M. Lawson. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DEAN S. HAZEL,
Plaintiff,
Case Number 11-12165
Honorable David M. Lawson
Magistrate Judge Michael Hluchaniuk
v.
BRIAN QUINN,
Defendant.
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OPINION AND ORDER REJECTING MAGISTRATE JUDGE’S REPORT
AND RECOMMENDATION, SUSTAINING PLAINTIFF’S OBJECTIONS
TO REPORT AND RECOMMENDATION, DENYING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT, VACATING ORDER OF REFERENCE,
AND SCHEDULING STATUS CONFERENCE
The matter is before the Court on the plaintiff’s objections to the report filed by Magistrate
Judge Michael Hluchaniuk recommending that the defendant’s motion for summary judgment be
granted and the case dismissed. The plaintiff filed a pro se complaint in this Court alleging that the
defendant, a police officer, retaliated against him in violation of the First Amendment when the
defendant issued traffic citations to the plaintiff for driving a car with its rear window obliterated
by a Ron-Paul-for-President campaign sign and not wearing a seatbelt. The Court entered an order
referring the case to Magistrate Judge Hluchaniuk to conduct all pretrial matters, after which counsel
filed an appearance for the plaintiff and the defendant filed his motion for summary judgment.
Judge Hluchaniuk filed his report on January 11, 2013 recommending that the motion be granted.
The plaintiff filed objections and the defendant responded. The case is now before the Court for
fresh review of the case in light of the objections filed. After due consideration, the Court finds that
fact questions preclude summary judgment and therefore respectfully disagrees with the magistrate
judge. The motion for summary judgment will be denied and the order of reference will be vacated
so the matter can proceed to trial before the Court.
I.
The basic facts of the case do not appear to be disputed. On May 17, 2008, plaintiff Dean
Hazel was driving his 1995 Mercury Tracer on a public roadway in Monroe County, Michigan. It
was not apparent that he was wearing his seatbelt, as he connected only the lap belt part of the
equipment and declined to use the shoulder restraint. In the center of the rear window, the Tracer
sported a large sign that read: “Ron Paul, Hope for America.”
Defendant Quinn is a Monroe County sheriff deputy who was on road patrol that day. He
initiated a traffic stop and issued the plaintiff two civil infraction tickets, one for failure to wear his
seatbelt properly in violation of Michigan Compiled Laws § 257.710 e(3), and the other for driving
a vehicle with its rear window obstructed in violation of Michigan Compiled Laws § 257.709(2).
Quinn told the plaintiff that if he removed the sign, the rear window obstruction ticket would be
dismissed.
The plaintiff did not remove the campaign sign from the rear window, and he requested a
formal hearing on both tickets in the Monroe County district court. On the date scheduled for the
hearing for both citations, August 26, 2008, the prosecutor moved to dismiss the obstructed rear
window violation because there was no actual violation of the statute. Michigan law states that a
person may not operate a motor vehicle with an obstructed rear window “unless the vehicle is
equipped with 2 rearview mirrors, 1 on each side, adjusted so that the operator has a clear view of
the highway behind the vehicle.” Mich. Comp. Laws § 257.709(2). Because the plaintiff’s Tracer
was equipped with side view mirrors that satisfied the statute, the prosecutor concluded that there
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was no violation. The seatbelt violation then went before the judge, who noted that defendant Quinn
had a legitimate basis to stop plaintiff for that violation, since he was not wearing the shoulder
harness part of the seatbelt. But because the plaintiff was wearing the lap belt at the time, the court
decided to dismiss the citation for failure to wear a seatbelt.
During discovery in this case, defendant Quinn testified that he had been in law enforcement
for nearly twenty years. He explained that he issued the obstructed view citation because he was
mistaken as to the elements of the offense, not realizing that a rear window obstruction is allowed
if side view mirrors provide adequate rear vision. In fact, he said he had never issued such a citation
before that date.
The defendant moved for summary judgment, arguing that the plaintiff had not established
all the elements of his First Amendment retaliation claim. The magistrate judge agreed. Of the three
elements of a retaliation claim — protected conduct, adverse action, and a causal link — the
magistrate judge focused the dispute on the third, causation. He found that the display of the
campaign sign constituted protected conduct, and issuance of the obstructed view citation amounted
to adverse action.
The defendant has not filed objections to that part of the report and
recommendation. However, the magistrate judge concluded that the plaintiff had not brought forth
sufficient evidence to establish that the defendant issued the citation because the plaintiff engaged
in the protected conduct, and also concluded that the evidence showed that Quinn would have taken
the same action regardless of the protected conduct.
II.
The plaintiff filed three objections to the report and recommendation. First, the plaintiff
objects that the magistrate judge impermissibly resolved factual disputes and drew inferences in
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favor of the moving party. Second, although the magistrate judge did not rule otherwise, the
plaintiff objects, insisting that he has provided sufficient evidence to demonstrate that an adverse
action was taken against him.
Third, the plaintiff argues that he has provided sufficient evidence of a causal connection
between the protected conduct and the adverse action and that the defendant failed to present a
legitimate reason for the adverse action. He contends that causation can be shown through temporal
proximity alone. He also points out that the defendant told him that he had to remove his sign and
noted on the citation that the sign was for Ron Paul. The plaintiff also notes that the defendant had
never issued a citation for obstructed rear view before and states that the defendant’s attitude and
conduct during the stop led him to believe that the citation was politically motivated.
Objections to a report and recommendation are reviewed de novo. “A judge of the court
shall make a de novo determination of those portions of the report or specified proposed findings
or recommendations to which objection is made. A judge of the court may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. §
636(b)(1). “[T]he failure to file specific objections to a magistrate’s report constitutes a waiver of
those objections.” Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004). In addition, the parties’
failure to file objections to the report and recommendation waives any further right to appeal.
Frontier Ins. Co. v. Blaty, 454 F.3d 590, 596-97 (6th Cir. 2006); Smith v. Detroit Fed’n of Teachers
Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987).
Under Federal Rule of Civil Procedure 56 — the summary judgment rule — the party
bringing the summary judgment motion has the initial burden of informing the court of the basis for
its motion and identifying portions of the record that demonstrate the absence of a genuine dispute
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over material facts. Mt. Lebanon Pers. Care Home, Inc. v. Hoover Universal, Inc., 276 F.3d 845,
848 (6th Cir. 2002). If the party opposing the motion contends facts are in dispute, he may not “rely
on the hope that the trier of fact will disbelieve the movant’s denial of a disputed fact” but must
make an affirmative showing with proper evidence in order to defeat the motion. Street v. J.C.
Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989). A party opposing a motion for summary
judgment must designate specific facts in affidavits, depositions, or other factual material showing
“evidence on which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986). If the non-moving party, after sufficient opportunity for discovery,
is unable to meet his burden of proof, summary judgment is clearly proper. Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986).
To prevail on a First Amendment retaliation claim, a plaintiff must show that (1) he was
engaged in protected conduct; (2) an adverse action was taken against him that would deter a person
of ordinary firmness from continuing to engage in that conduct; and “(3) there is a causal connection
between elements one and two — that is, the adverse action was motivated at least in part by the
plaintiff’s protected conduct.” Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc);
see also Evans-Marshall v. Board of Educ. of Tipp City Exempted Vill. Sch. Dist., 624 F.3d 332, 337
(6th Cir. 2010). Notwithstanding a showing of all three, the defendant may escape liability by
showing that he would have taken the same action in the absence of the protected activity.
Thaddeus-X, 175 F.3d at 399; see also Jenkins v. Rock Hill Local Sch. Dist., 513 F.3d 580, 586 (6th
Cir. 2008).
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A. Causation
As mentioned above, the main dispute framed by the magistrate judge’s report and the
objections filed deals with the third element of the claim. Proof of causation requires some evidence
of the defendant’s motivation in taking the adverse action, that is, that he was moved to take such
action because the plaintiff engaged in protected speech. As the Sixth Circuit has explained:
protected speech causes an adverse action if the speech motivates an individual actor
to take acts that then proximately cause an adverse action. Subjective motivation
appropriately enters the picture on a retaliation claim because our concern is with
actions by public officials taken with the intent to deter the rights to free expression
guaranteed under the First Amendment. Bloch v. Ribar, 156 F.3d 673, 681-82 (6th
Cir. 1998) (“[A]n act taken in retaliation for the exercise of a constitutionally
protected right is actionable under § 1983 even if the act, when taken for a different
reason, would have been proper.”) (internal quotation marks omitted). Thus,
causation in retaliatory claims may really be considered a two-part inquiry: A
plaintiff must show both (1) that the adverse action was proximately caused by an
individual defendant’s acts, Siggers-El v. Barlow, 412 F.3d 693, 702 (6th Cir. 2005),
but also (2) that the individual taking those acts was “motivated in substantial part
by a desire to punish an individual for exercise of a constitutional right,” ThaddeusX, 175 F.3d at 386.
King v. Zamiara, 680 F.3d 686, 695 (6th Cir. 2012). When determining whether an individual had
a retaliatory motive, it must be remembered that “retaliation ‘rarely can be supported with direct
evidence of intent.’” Harbin-Bey v. Rutter, 420 F.3d 571, 580 (6th Cir. 2005) (quoting Murphy v.
Lane, 833 F.2d 106, 108 (7th Cir. 1987)). That is why “[c]ircumstantial evidence, like the timing
of events or the disparate treatment of similarly situated individuals, is appropriate” to consider
when determining whether a genuine issue of fact exists on that element of a First Amendment
retaliation claim. Thaddeus-X, 175 F.3d at 399.
The Sixth Circuit has “considered the temporal proximity between protected conduct and
retaliatory acts as creating an inference of retaliatory motive.” King, 680 F.3d at 695. “In theory,
temporal proximity between the protected conduct and the adverse action, standing alone, may be
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significant enough to create an inference of retaliatory motive.” Coleman v. Bowerman, 474 F.
App’x 435, 437 (6th Cir. 2012) (citing Muhammad v. Close, 379 F.3d 413, 417-18 (6th Cir. 2004)).
“However, when other evidence of retaliatory motive is lacking, [the Sixth Circuit has] been
reluctant to hold that temporal proximity is sufficient to establish causation.” Ibid. (citing Smith v.
Campbell, 250 F.3d 1032, 1038 (6th Cir. 2001)). In analyzing claims based on temporal proximity,
courts must look to “the totality of the circumstances to determine whether an inference of
retaliatory motive could be drawn.” Vereecke v. Huron Valley School Dist., 609 F.3d 392, 401 (6th
Cir. 2010)). The Sixth Circuit’s “case law can fairly be characterized as recognizing the possibility
that, on a particular set of facts, extremely close temporal proximity could permit an inference of
retaliatory motive, but also recognizing that often evidence in addition to temporal proximity is
required to permit the inference.” Ibid.
In this case, the adverse action was, essentially, contemporaneous with the protected conduct.
The magistrate judge concludes that that fact was insufficient to demonstrate retaliatory intent
because the timing of the ticket was logically related to the traffic stop. The magistrate judge relied
primarily on Vereecke and LaFountain v. Mikkelsen, 478 F. App’x 989, 993 (6th Cir. 2012), when
he suggested that there was no evidence of causation. But there was other evidence, circumstantial
though it was, from which a fact finder could infer retaliatory intent. The evidence in the record is
that (1) the defendant noted on the citation that the obstruction was a “Ron Paul” campaign sign; (2)
he issued the citation when in fact there was no actual violation of the statute; (3) in nearly twenty
years on the road, the officer had never before issued an obstructed rear view citation, even when
he had seen semi trucks with obstructed rear views and vans with no rear window; and (4) he told
the plaintiff that if he would remove the campaign poster, the citation would be dismissed.
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Certainly, there are innocent explanations for each of these facts. On the other hand, from these
facts, a jury could make the reasonable inference that issuance of the obstructed view citation was
politically motivated. Choosing which inference to accept, however, is not the business of the Court,
at least at the summary judgment stage. Kalamazoo River Study Group v. Rockwell Intern. Corp.,
171 F.3d 1065, 1072 (6th Cir. 1999) (stating that “credibility determinations, the weighing of
evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of the
judge” (citing Anderson, 477 U.S. at 255)).
Those additional facts distinguish the cases upon which the magistrate judge relied. In
LaFountain, the defendant issued the plaintiff, a prisoner, two misconduct tickets for visiting the law
library without a pass and was found guilty of one by a hearing officer. Id. at 991. The plaintiff
argued that this misconduct ticket was in retaliation for his filing a grievance against another officer
and his attempts to use the law library to research a case. Ibid. The Sixth Circuit found that the
plaintiff had not established causation because the plaintiff admitted to “engaging in the acts that
formed a basis of the misconduct charge” and therefore “[t]he closeness in time between [the
plaintiff’s] alleged protected conduct and [the defendant’s] decision to file a misconduct ticket [was]
easily explained by the fact that [the plaintiff] disobeyed a direct order during the same time period.”
Id. at 993. In contrast, here, although both parties agree that the defendant had probable cause to
stop the plaintiff, there was no legal basis to issue the obstructed view citation. The defendant
attributes his action to a mistaken understanding of the statute, but a jury need not accept that
excuse. At most, LaFountain suggests that the plaintiff may not rely on temporal proximity alone
to establish causation. Vereecke likewise stands for the proposition that courts often require
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evidence other than temporal proximity to give rise to an inference of causation. As noted earlier,
more than temporal proximity can be found in this record
The Sixth Circuit also has cautioned that the plaintiff’s burden in demonstrating causation
is not “trivial” and that “the analysis of motive in retaliation claims utilizes a shifting burden that
may mean early dismissal.” Thaddeus-X, 175 F.3d at 399. If, “[o]nce the plaintiff has met his
burden of establishing that his protected conduct was a motivating factor behind any harm . . . the
defendant can show that he would have taken the same action in the absence of the protected
activity, he is entitled to prevail on summary judgment.” Ibid. In order to make this showing, it is
not enough for the defendant to “deny the allegations put forth by the plaintiff[].” Ibid.
The magistrate judge concluded that even if the plaintiff met his burden of establishing
causation, the “defendant offered unrebutted testimony that he would have issued the obstructed
view infraction regardless of the content of the language on the sign.” Rep. & Rec. at 11. But a
mere denial of retaliatory intent is insufficient to permit a defendant to prevail on summary
judgment. Thaddeus-X, 175 F.3d at 399. Again, a jury may credit the defendant’s testimony rather
than the inferences that the plaintiff urges. But where a defendant has offered nothing more than
an unsupported assertion that he lacked retaliatory intent, he has not demonstrated his entitlement
to summary judgment. CenTra, Inc. v. Estrin, 538 F.3d 402, 412 (6th Cir. 2008) (holding that
credibility judgments fall to the jury, not the Court on summary judgment).
B. Adverse action
The magistrate judge “assumed” that the acting of issuing the obstructed view citation
amounted to adverse action, in First Amendment parlance. As noted above, the defendant did not
object to that part of the report, which waives the right to challenge that report here or on appeal.
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Smith, 829 F.2d at 1373. Likewise, the failure to object to an unfavorable portion of the magistrate
judge’s report releases the Court from its duty to independently review the issue. Thomas v. Arn,
474 U.S. 140, 149 (1985).
Nonetheless, even though the point is conceded, the evidence in the record is sufficient to
establish that the defendant’s conduct constituted an adverse action. An adverse action is one that
would deter a person of ordinary firmness from continuing to engage in protected conduct.
Thaddeus-X, 175 F.3d at 397. As a general rule, “[w]hether an alleged adverse action is sufficient
to deter a person of ordinary firmness is generally a question of fact.” Wurzelbacher v. JonesKelley, 675 F.3d 580, 583-84 (6th Cir. 2012) (citing Bell v. Johnson, 308 F.3d 594, 603 (6th Cir.
2002)). Certainly, trivial inconveniences and minor slights will not amount to an adverse action.
But because the plaintiff is a private citizen, “the level of injury [he] must allege would be the lower
limit of a cognizable injury for a First Amendment retaliation claim.” Fritz v. Charter Twp. of
Comstock, 592 F.3d 718, 724 (6th Cir. 2010).
Courts have found that the issuance of a traffic ticket is sufficient to constitute an adverse
action for the purpose of a First Amendment retaliation claim. In Garcia v. City of Trenton, 348
F.3d 726 (8th Cir. 2003), the Eighth Circuit held that a reasonable jury could find that the issuance
of four parking tickets totaling $35 in a two-month period would deter a person of ordinary firmness
in exercising her First Amendment rights. Id. at 729. The court noted that the defendant had
“engaged the punitive machinery of government in order to punish [the plaintiff] for her speaking
out” and that parking tickets, although “typically only petty offenses . . . have concrete
consequences.” Ibid.; see also Richter v. Maryland, 590. F. Supp. 2d 730, 734-35 (D. Md. 2008)
(finding that the issuance of an “abandoned vehicle” ticket and repair order that required the plaintiff
to move his car within 48 hours and repair his windshield was sufficient to deter a person of ordinary
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firmness); Persaud v. McSorely, 275 F. Supp. 2d 490, 495 (S.D. N.Y. 2003) (stating that a plaintiff’s
First Amendment claim “may have survived” if the plaintiff were issued a traffic ticket for running
a red light in retaliation for criticism of an accident investigation but finding that the plaintiff’s
conviction for running a red light “establishe[d] that there was a legitimate basis for the issuance of
the ticket”). In an analogous case, the Sixth Circuit has held that charging an inmate with a major
misconduct, even “when the charges are subsequently determined to be unfounded” and the inmate
is found not guilty of the violation, is an adverse action that could deter a person of ordinary
firmness from exercising his First Amendment rights. King v. Zamiara, 150 F. App’x 485, 493-94
(6th Cir. 2005).
In this case, just as in Garcia, the civil infraction the defendant issued the plaintiff may only
have been a “petty offense[,]” but it had “concrete consequences.” Garcia, 348 F.3d at 729. The
scheduled fine for the obstruction citation is $100 and two points are added to the driving record,
which is substantially more serious than the $35 that was at stake in Garcia. True, the defendant
issued a fix-it ticket, which would have allowed the plaintiff to avoid paying the fine by removing
the sign from his rear window. But being offered the choice between paying a fine or ceasing to
engage in protected speech does not make the action any less adverse.
The defendant argued to the magistrate judge that the issuance of a ticket that is later
admitted to be in error would not chill a person of ordinary firmness in exercising his First
Amendment rights, and that the plaintiff legitimately was required to go to court to address the
seatbelt violation in any event. The defendant contends that the plaintiff did not actually suffer an
injury as a result of the issuance of the instruction ticket. On these points, the analogy to King is
instructive, and suggests that the fact that the plaintiff’s civil infraction was dismissed is not
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dispositive. It is the burden of having to engage the judicial machinery that is the deterrent in the
First Amendment analysis.
The defendant also compares this case to Wurzelbacher and argues that the injury here is
similarly de minimis. However, the injury in Wurzelbacher — in which the plaintiff alleged that
employees of state agencies conducted improper database searches on his name — is significantly
different than the injury in this case. The plaintiff in Wurzelbacher was not subjected to the threat
of a fine or any other penalties, as was the plaintiff here. The defendant also points to the Sixth
Circuit’s observation in Wurzelbacher that the plaintiff did “not allege that defendants’ actions in
fact caused a ‘chill’ of his First Amendment rights.” Wurzelbacher, 675 F.3d at 584. However, the
Sixth Circuit has never required that an individual plaintiff actually be chilled in the exercise of his
First Amendment rights to succeed on a retaliation claim. Center for Bio-Ethical Reform, Inc. v.
City of Springboro, 477 F.3d 807, 822 (6th Cir. 2007).
The Sixth Circuit has held that “all that is required to reach a jury on the issue of whether
the retaliatory actions could deter a person of ordinary firmness from engaging in protected conduct”
is “evidence . . . sufficient to demonstrate that the claimed retaliatory acts were not merely de
minimis acts of harassment.” Bell, 308 F.3d at 606-07. There is sufficient evidence in this record
to establish the adverse action element of the plaintiff’s claim.
III.
The Court agrees that the evidence of causation is scant and the question is close. However,
there is sufficient evidence in the record to allow a jury to make that call. The Court, therefore,
respectfully disagrees with the magistrate judge and finds that the plaintiff’s objections have merit.
Fact questions preclude summary judgment.
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Accordingly, it is ORDERED that the magistrate judge’s report and recommendation [dkt.
#25] is REJECTED.
It is further ORDERED that the plaintiff’s objections to the magistrate judge’s report and
recommendation [dkt. #26] are SUSTAINED.
It is further ORDERED that the defendant’s motion for summary judgment [dkt. #20] is
DENIED.
It is further ORDERED that the previous reference order [dkt. #4] is VACATED.
It is further ORDERED that counsel for the parties appear before the Court for a status
conference to establish additional case management dates on April 1, 2013 at 4:30 p.m.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: March 13, 2013
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 March 13, 2013.
s/Deborah R. Tofil
DEBORAH R. TOFIL
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