Boulton v. Swanson et al

Filing 40

OPINION and ORDER granting defendant's 17 MOTION for Summary Judgment ; and denying plaintiff's 18 MOTION for Summary Judgment Signed by District Judge Nancy G. Edmunds. (CBet)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Sergeant Joseph Boulton,
Case No. 13-13543
Plaintiff,
Honorable Nancy G. Edmunds
v.
Christopher Swanson and Genesee
County,
Defendants.
/

OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [17
& 18]
Currently before the Court are cross motions for summary judgment. For the
reasons set forth below, the Court DENIES Plaintiff's motion for summary judgment,
GRANTS Defendants' motion for summary judgment, and DISMISSES this case with
prejudice.
I.

FACTS
Plaintiff, Joseph Boulton, was employed by the Genesee County Sheriff's

Department, beginning in 1996. Defendant Christopher Swanson, holds the rank of
Undersheriff in Genesee County and was Plaintiff's supervisor's supervisor.
The Sheriff's Department has a written policy in place regarding employee speech.
Specifically, Office of the Sheriff Genesee County, Policies and Procedures, General Order
1, Section 4.10 states:
Office of the Sheriff Genesee County employees shall not make public
statements through verbal, written or any other form of expression, criticizing

or ridiculing the Sheriff’s Office, its policies or other employees, when such
statement brings the Sheriff’s Office into disrepute. Statements which are
defamatory, obscene, unlawful or which may impair the operation or
efficiency of the Sheriff’s Office, interfere with discipline, or which show a
reckless disregard for the truth, are likewise prohibited.
Plaintiff alleges that, after he testified at a labor arbitration hearing, Undersheriff
Swanson targeted him for suspension, demotion, and eventual termination. Plaintiff further
alleges that his testimony at the hearing is what prompted Undersheriff Swanson's actions.
Specifically, Plaintiff claims to have testified that Swanson did not testify truthfully regarding
the Sheriff Department's training regimen. A full transcript of the April 9, 2012 arbitration
hearing was submitted in support of Plaintiff's motion for summary judgment. Pl.'s Mot., Ex.
B. While it contains one or two instances of Plaintiff contradicting Swanson's testimony,
none of the statements made by Plaintiff during the hearing relate to CPR, Taser, or firearm
training, as his complaint and motion suggest. During the hearing held on the instant
motions, Plaintiff's counsel suggested that Plaintiff's contradictory arbitration testimony may
have been given on another day of the arbitration session in question. The record,
however, only contains the transcript for the April 9 arbitration hearing.
Defendants admit that their actions, specifically the suspension, demotion, and
removal of Plaintiff's police powers, were in part, a result of Plaintiff's "criticism of the Office
of the Genesee County Sheriff." Pl.'s Mot., Ex. L. Defendants further claim that Plaintiff's
mistreatment of prisoners and colleagues, untruthfulness, and insubordination - in the form
of his disregarding a direct order not to interfere in the Sheriff's Office's investigation into
complaints against him - were also a contributing factor in the disciplinary action taken
against Plaintiff, and that these concerns would have supported not just suspension and
demotion, but outright termination. Indeed, the record reflects at least three instances of
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Plaintiff exhibiting hostile behavior towards female employees that pre-date the arbitration
hearing.
Plaintiff brought this lawsuit in state court, initially as two separate actions. The state
court saw fit to consolidate the actions, and Defendants promptly removed to this Court.
Upon receipt of Defendants' notice of removal, the Court remanded all of Plaintiff's claims,
save for the 42 §1983 First Amendment claim. Plaintiff sought to amend his complaint, and
the Court initially granted him leave to do so, however, on Defendants' motion for
reconsideration, the Court reversed course and disallowed the sought after amendment.
The parties now move for summary judgement.
II.

ANALYSIS
A. The Standard on Motion for Summary Judgment
The Sixth Circuit employs the familiar standard for summary judgment, namely, that

summary judgment is proper when the movant "shows that there is no genuine dispute as
to any material fact, and that the movant is entitled to judgment as a matter of law." U.S.
SEC v. Sierra Brokerage Services, Inc., 712 F.3d 321, 326-27 (6th Cir. 2013) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986)) (quotations omitted). When
reviewing the record, "the court must view the evidence in the light most favorable to the
non-moving party and draw all reasonable inferences in its favor." Id. Furthermore, the
"substantive law will identify which facts are material, and summary judgment will not lie if
the dispute about a material fact is 'genuine,' that is, if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party." Id.
When considering the material facts on the record, a court must bear in mind that
“[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be
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insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.”
Anderson, 477 U.S. at 252.
Moreover, “[i]n order to survive a motion for summary judgment, the non-moving
party must be able to show ‘sufficient probative evidence [that] would permit a finding in
[their] favor on more than mere speculation, conjecture, or fantasy.” Arendale v. City of
Memphis, 519 F.3d 587, 605 (6th Cir. 2008) (citing and quoting Lewis v. Philip Morris Inc.,
355 F.3d 515, 533 (6th Cir. 2004)).
B. Plaintiff Concedes That His Claim is Only Against Genesee County
As an initial matter, the Court notes that Plaintiff, in his response to Defendant's
motion for summary judgment, states that he "does not dispute that his 42 U.S.C. § 1983
claim is only against Defendant, Genesee County." Pl.'s Resp. 16 [Dkt. 37]. The Court finds
Plaintiff's admission dispositive as to the other named Defendants in this matter and,
therefore, to the extent that they were not already dismissed from this matter when the
state law claims were remanded to state court, the Court hereby GRANTS Defendants'
motion as it relates to the non-municipal Defendants and DISMISSES Christopher
Swanson, Matthew Rule, Diane Nims, and the Genesee County Sheriff's Department from
this case.1
C. Plaintiff's Claims Against Genesee County Fail as a Matter of Law
In order for Plaintiff to succeed on his claims against Genesee County he must show
that he suffered the deprivation of a constitutional right as a result of an official or
1

The Court acknowledges Defendants' arguments regarding whether or not the Sheriff's
Department is an entity that is capable of being sued, however, given Plaintiff's concession
that his claim is only against Genesee County, the Court need not rule on the issue of the
Sheriff's Department's legal status.
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established policy or practice. Powers v. Hamilton County Pub. Defender Comm'n, 501
F.3d 592, 607 (6th Cir. Ohio 2007) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691
(1978)). That is "liability will attach only where the plaintiff establishes that the municipality
engaged in a 'policy or custom' that was the 'moving force' behind the deprivation of the
plaintiff's rights." Id.
Additionally, the theory of resondeat superior has been specifically rejected as a
mechanism for establishing municipal liability in a 42 U.S.C. § 1983 action. Id. Therefore,
as far as Plaintiff's claim attempts to establish such liability, that aspect of his claim fails as
a matter of law.
The process for determining whether a public employee has suffered the deprivation
of a constitutional right in the First Amendment context is well established. In Garcetti v.
Ceballos, 547 U.S. 410 (2006), the Supreme Court further developed the longstanding, socalled Pickering rule governing this issue, which holds that the First Amendment only
protects public employees who speak as citizens addressing matters of public concern.
Crucial to the Pickering analysis, the Garcetti court held, is whether the speech at issue
was made pursuant to the employee’s official duties. Specifically, the Court held “that when
public employees make statements pursuant to their official duties, the employees are not
speaking as citizens for First Amendment purposes, and the Constitution does not insulate
their communications from employer discipline.” Garcetti, 547 U.S. at 421.
Given that the Court is ruling in Defendant's favor on these cross-motions for
summary judgment, the following analysis is based on a liberal reading of Plaintiff's claims
in general, and in particular of the phrase "Plaintiff exercised his First Amendment right to
freedom of Speech [sic], including comments made during contract negotiations, testimony
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at arbitration hearings and comments made during investigations" found in Paragraph 105
of the Second Amended Complaint, with every reasonable factual inference made in
Plaintiff's favor. That being said, even with the broadest interpretation possibly applicable
to Plaintiff's allegations, there is not even a scintilla of evidence in the record supporting
Plaintiff's vaguely alleged statements that he contradicted Swanson's testimony regarding
firearm, Taser, and CPR training in a setting other than the office or the arbitration hearing
and that such statements contributed to his demotion and suspension. With nothing to
support his claims that Plaintiff was disciplined for speech made to the community, the
Court is left to assess speech made at the arbitration hearing and during an internal
investigation. Both of those situations place Plaintiff's speech firmly in the class of speech
specifically excepted from the First Amendment's otherwise robust protections under
Garcetti. That is, Plaintiff was only in a position to make the speech at issue as a direct
result of his employment with the Sheriff's Office, and the speech, therefore, is not insulated
from disciplinary action. Garcetti, 547 U.S. at 421-422 (noting that "[r]estricting speech that
owes its existence to a public employee's professional responsibilities does not infringe any
liberties the employee might have enjoyed as a private citizen. It simply reflects the
exercise of employer control over what the employer itself has commissioned or created.").
In short, Plaintiff was at the arbitration hearing because he worked at the Sheriff's Office
and held a union position related to that work, and the investigation was as a result of on
the job misconduct. The Court finds that such facts establish that the speech at issue "owes
its existence to" to Plaintiff's professional responsibilities, and is therefore regulable.
Furthermore, even if Plaintiff were able to overcome the above obstacles, given that
the County is the only Defendant, Plaintiff must still show that an official or established
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policy or practice was to blame for his injuries. Powers, 501 F.3d at 607. On this point,
Plaintiff points to the Sheriff's General Order that prohibits criticism of the Sheriff's Office.
The Sixth Circuit has specifically addressed this policy in the recent past. In the
unpublished, but highly relevant Cherry v. Pickell, 188 Fed. App'x 465, 471 (6th Cir. 2006),
the Sixth Circuit found that, under the facts of that case, the plaintiffs had "not
demonstrated that the Work Rules and Regulations were calculated to discourage
constitutionally protected speech." Id. The Cherry court reached its decision in large part
by way of the reasoning found in Brown v. Trenton, 867 F.2d 318, 323-324 (6th Cir. 1989),
which addressed a challenge to an ordinance substantially similar to the one at issue in this
case. In Brown, the Sixth Circuit reasoned that:
[t]o devise a detailed code of police conduct incapable of misapplication
would be utterly impossible, or so we should find it, but that does not mean
that the Constitution bars codes of police conduct generally. Most chiefs of
police are neither corrupt nor mad, and while any police chief can make a
mistake, just as any of the rest of us can, courts are fully capable of
correcting such mistakes. If [the] Chief...had disciplined [the plaintiff] for
publicly exposing corruption in the City of Trenton police force, for example,
or for publicly criticizing unconstitutional orders, we have no doubt that [the
district court], upon request, would have taken appropriate action--and if he
had not, we would have.
Id. In light of the foregoing language found in Brown and Cherry, in the Sixth Circuit, the
Monell framework that requires a plaintiff to tie his or her First Amendment violation to an
official policy in order to recover from a municipality has an extra step where the policy at
issue is a police code of conduct or some such similar set of rules and regulations.
Specifically, that extra step requires a plaintiff to show that the policy in question either has
in fact been abused or was intentionally designed to discourage constitutionally protected
speech.

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Here, Plaintiff has not made a showing that the Sheriff's General Order against
criticism of the Sheriff's Office was used in an untoward manner, nor has he shown that the
rule was devised with an unconstitutional purpose in mind. The rule at issue prohibits
criticizing or ridiculing the Sheriff’s Office, its policies or other employees,
when such statement brings the Sheriff’s Office into disrepute. Statements
which are defamatory, obscene, unlawful or which may impair the operation
or efficiency of the Sheriff’s Office, interfere with discipline, or which show a
reckless disregard for the truth, are likewise prohibited.
There is nothing in the above language to suggest an unconstitutional intent, indeed, as
noted above the Sixth Circuit already ruled that absent a showing "that the Work Rules and
Regulations were calculated to discourage constitutionally protected speech" this rule is not
problematic from a constitutional standpoint. In this case, Plaintiff has not made such a
showing. There is simply not enough evidence linking Plaintiff's demotion and suspension
to the statements that he claims he made to the community regarding training practices at
the Sheriff's office to support a causal connection. The "criticism" identified in the Notice
of Disciplinary Action detailing Plaintiff's adverse employment action is not explicitly spelled
out, but that means that it could be anything. Without more to link the two, no reasonable
juror could conclude that the policy at issue was used in an unconstitutional manner without
engaging in impermissible speculation and conjecture.
While Plaintiff has provided the Court with a lengthy "Statement of Additional Facts,"
which are more or less supported by exhibits, the additional facts, some of which are
troubling, do not change this Court's analysis. That is so because none of the facts serve
to either link Boulton's alleged off-duty statements to the community to the disciplinary
action at issue, or to demonstrate that the policy at issue was "calculated to discourage
constitutionally protected speech."
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Therefore, the Court GRANTS Defendants' motion for summary judgment, DENIES
Plaintiff's motion for summary judgment, and DISMISSES this case with prejudice.
IV.

Conclusion
For the reasons set forth above, and because Defendants have shown the absence

of a genuine dispute as to a material fact, and Plaintiff has failed to bring forth sufficient
evidence to counter Defendants' showing, the Court hereby GRANTS Defendants' motion
for summary judgment, DENIES Plaintiff's motion for summary judgment, and DISMISSES
Plaintiff's complaint, with prejudice.

SO ORDERED.

s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: September 15, 2014
I hereby certify that a copy of the foregoing document was served upon counsel of record
on September 15, 2014, by electronic and/or ordinary mail.
s/Carol J. Bethel
Case Manager

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