Thiede v. Burcoff et al

Filing 50

OPINION AND ORDER granting 33 Motion for Summary Judgment; granting 36 Motion for Summary Judgment; denying 37 Motion for Partial Summary Judgment. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN THIEDE,
Plaintiff,
v.

Case No. 16-13650

LEROY BURCROFF, et al.,
Defendants.
/
OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY
JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT
Plaintiff is a firefighter for the City of Romulus. He brings this suit alleging that he
was unlawfully retaliated against for exercising his First Amendment rights. He claims
that Defendant LeRoy Burcroff (the Mayor of Romulus), Defendant Julie Wojtylko (the
Mayor’s Chief of Staff), and Defendant Jadie Settles (the Director of Public Safety and
Plaintiff’s supervisor), improperly suspended him after text messages between Plaintiff
and a former Romulus employee were disclosed to the City. Plaintiff also names the
City of Romulus as a Defendant.
Presently before the court are three motions for summary judgment: Defendants
Burcroff, Wojtylko, and City of Romulus move for summary judgment as to all of
Plaintiff’s claims (Dkt. #33); Defendant Settles similarly moves for summary judgment as
to all of Plaintiff’s claims against him (Dkt. #36); and Plaintiff moves for partial summary
judgment as to Count III of his Complaint, which seeks declaratory judgment that the
City of Romulus’s “Policy #34” is a facially unconstitutional prior restraint of free speech
(Dkt. #37). The motions are fully briefed and the court held a hearing on November 29,

2017. Following the hearing, the court ordered supplemental briefing from both parties,
asking them to address whether Plaintiff has standing to challenge the constitutionality
of Policy #34. (Dkt. #47.) For the following reasons, Defendants’ motions are granted
and Plaintiff’s motion is denied.
I. BACKGROUND
Plaintiff’s suit finds its origin in a case formerly before this court: Guzall v. City of
Romulus, No. 13-11327 (E.D. Mich.) (Parker, J.). The plaintiff there—Marianne Guzall—
alleged that she was unlawfully terminated by the City of Romulus and some of its
employees because she exercised her First Amendment right to speak out about
alleged corruption in Romulus. (See Guzall Compl. Dkt. #41-2.) At some point during
that litigation, Guzall was ordered to disclose over 1200 text messages exchanged
between her and Plaintiff. (Dkt. #41 Pg. ID 1057.) According to Plaintiff, these text
messages “discussed government corruption, misuse of public funds, suspected illegal
activity, and Plaintiff[’]s assistance/participation in the Guzall litigation.” (Dkt. #41 Pg. ID
1057.) The court in Guzall granted summary judgment to the defendants, and judgment
was entered in their favor. Guzall v. City of Romulus, No. 13-11327, 2017 WL 3394751,
at *16 (E.D. Mich. Aug. 8, 2017) (Parker, J.).
Though none of the individual Defendants in this case were named in Guzall,
they nonetheless learned of the text messages. Sometime in July 2016, the Romulus
City Attorney provided Defendants Burcroff and Wojtylko copies of the texts, and they
read some—though not all—of them. (Dkt. #41-5 Pg. ID 1316, 1323–24; Burcroff Dep.
Dkt. #41-6 Pg. ID 1358; Wojtylko Dep. Dkt. #41-7 Pg. ID 1381.) Defendant Wojtylko was
“saddened” and “disappoint[ed]” by the messages. (Wojtylko Dep. Dkt. #41-7 Pg. ID

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1381.) Defendant Burcroff cast them as “middle school gossip stuff.” (Burcroff Dep. Dkt.
#41-6 Pg. ID 1358.)
Sometime before August 2016, Defendant Settles learned about the text
messages “in passing.” (Settles Dep. Dkt. #41-11 Pg. ID 1431.) According to Defendant
Settles, Defendants Burcroff and Wojtylko may have mentioned the texts in his
presence, but he never discussed the texts with them. (Id.)1 There is no dispute that
Defendant Settles did not read the texts. (Dkt. #36 Pg. ID 738; Dkt. #42 Pg. ID 1661.)
What happened after the disclosure of the texts in Guzall (and why) is a matter of
debate between the parties. The parties agree that the pertinent events happened on
August 2, 2016—a primary election day in Michigan.
That morning, Defendant Burcroff received a phone call from Douglas Geiss, a
former state representative. (Burcroff Dep. Dkt. #41-6 Pg. ID 1374.) Mr. Geiss informed
Defendant Burcroff that there may be some election signs too close to polling places, a
violation of rules requiring a buffer zone around polling places on election day. (Id.) The
phone call was received just before Defendant Burcroff’s weekly executive team
meeting, which generally commences at 8:30am. (Id.) Defendants Wojtylko and Settles
usually attend the weekly executive team meetings (id. at Pg. ID 1355), though the

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Plaintiff claims that Defendant Settles’s deposition testimony, in which he
testified the Defendants Burcroff and Wojtylko may have discussed the texts in his
presence, contradicts Defendant Settles’s signed discovery responses, in which he
stated that he had not spoken to anyone about the texts. (Dkt. #42 Pg. ID 1661.) The
court sees no discrepancy. Plaintiff never testified that he may have “discussed” the text
messages with Defendants Burcroff and Wojtylko. (Id.) Rather, Defendant Settles
testified that these Defendants may have mentioned the texts to him. (See, e.g., Settles
Dep. Dkt. #41-11 Pg. ID 1431) (“Q. What about Mayor Burcroff, did he ever mention the
text messages? A. He may have. Like I said, there was never any direct conversation
. . . .”).)

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parties have cited nothing in the record to indicate whether they were in attendance on
August 2. The court has gleaned, of its own accord, that at least Defendant Settles was
in attendance on August 2. (Settles Dep. Dkt. #41-11 Pg. ID 1442.) According to
Defendant Settles, there was no discussion of the election at the meeting. (Id.)
That same day, Plaintiff—on his day off—was at the Romulus Athletic Center
(“RAC”) polling location supporting a candidate in the primary election. (Thiede Dep.
Dkt. #41-4 Pg. ID 1280.) He posted his location on Facebook. (Id. at Pg. ID 1302.) He
was wearing a t-shirt with an International Association of Firefighters emblem on it. (Id.
at Pg. ID 1281.)
Around noon, two City of Romulus ordinance officers, at the direction of
Defendant Burcroff, arrived at the RAC. They were purportedly there to check whether
election activity was happening within the 100-foot buffer zone around the polling
location. (Id. at Pg. ID 1300–03.) Plaintiff was acquainted with one of the ordinance
officers. (Thiede Dep. Dkt. #41-4 Pg. ID 1299–30.)
The ordinance officers informed Plaintiff that the sign indicating the edge of the
100-foot buffer would need to be moved, and they moved it. (Thiede Dep. Dkt. #41-4
Pg. ID 1300, 1302.) Plaintiff believes that the ordinance officers were accusing him
specifically of moving the 100-foot sign from where the City would have placed it. But he
also admits that his name was never mentioned during his encounter with the ordinance
officers. (Id. at Pg. ID 1302.) The City Clerk arrived during the interaction as part of her
rounds checking the precinct. (Id.; Craig-Bragg Dep. Dkt. #41-10 Pg. ID 1408.) She was
not at the location because of Plaintiff, but she apologized to Plaintiff for the
inconvenience caused by moving the buffer sign. (Craig-Bragg Dep. Dkt. #41-10 Pg. ID

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1407–08.) Plaintiff apparently told the City Clerk that “[t]his is a bad polling precinct if
you can’t give the hundred feet.” (Thiede Dep. Dkt. #41-4 Pg. ID 1281.)
At some point, Defendant Settles was informed by the City Ordinance Director
that there was a problem at the RAC involving someone wearing a “T-shirt that said
fireman.” (Settles Dep. Dkt. #41-11 Pg. ID 1419.) Defendant Settles went to the RAC
with his secretary, and he got there about fifteen to thirty minutes after the ordinance
officers left. (Id. at Pg. ID 1419–20; Thiede Dep. Dkt. #41-4 Pg. ID 1303.)
According to Plaintiff, Defendant Settles immediately came up to him and said “I
heard you had a run-in with my ordinance.” (Thiede Dep. Dkt. #41-4 Pg. ID 1303.)
Plaintiff tried to explain what happened with the ordinance officers. He also told
Defendant Settles “I don’t work for you today” and “[y]ou’re not my boss today.” (Id. at
Pg. ID 1303–04.) Another person volunteering at the RAC with Plaintiff similarly tried to
explain what had happened with the ordinance officers. (Warren Decl. Dkt. #41-9 Pg. ID
1402.)
Defendant Settles suspended Plaintiff until further notice and then left. (Thiede
Dep. Dkt. #41-4 Pg. ID 1304.) Plaintiff maintains that while he was “flabbergasted,” he
never yelled, never threatened Defendant Settles, and never used profanity. (Id. at Pg.
ID 1303.)
Defendant Settles, however, describes Plaintiff’s conduct and words as
disrespectful and threatening. According to Defendant Settles, Plaintiff raised his voice,
pointed his finger, and told Defendant Settles he wanted to “file a fucking complaint.”
(Settles Dep. Dkt. #41-11 Pg. ID 1424.) Plaintiff told Defendant Settles that he was not
required to talk to him because it was his day off, and he continued to make threats,

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including that he was going to call his attorney. (Id.) Defendant Settles maintains that he
suspended Plaintiff because of Plaintiff’s behavior and disrespect. (Id. at Pg. ID 1442.)2
Plaintiff was suspended (with pay) for one work day. (Thiede Dep. Dkt. #41-4 Pg.
ID 1284, 1313.)3 He has not been subjected to any discipline since then. (Id. at Pg. ID
1284.)
Sometime after Plaintiff’s suspension, Robert McLachlan—a person identified
only as a “City resident known to all parties in this matter” (Dkt. #33 Pg. ID 346)—visited
the Mayor’s Office. (McLachlan Dep. Dkt. #41-12 Pg. ID 1461; McLachlan Aff. Dkt. #418 Pg. ID 1399.) Defendant Wojtylko allegedly told McLachlan, “I’m aware you and
[Plaintiff] are friends and are comparing notes. Be careful. There’s more than what is on
the surface. He said some hurtful, personal things about me in texts to [Guzall], for
which I will never forgive him for. He’s nobody’s friend.” (McLachlan Aff. Dkt. #41-8 Pg.

2

Defendants repeatedly claim that Plaintiff admitted that he was suspended for
his behavior towards Defendant Settles. (See, e.g., Dkt. #33 Pg. ID 345; Dkt. #36 Pg. ID
746.) The court finds Plaintiff’s testimony on this point ambiguous at best. Plaintiff’s
deposition testimony reads as follows:
Q.
Mr. Thiede, you would agree with me you weren’t suspended for working
the polls, you were suspended because of your behavior and demeanor toward the
director when he was asking you questions about whether you had been involved in an
incident with the ordinance officers, correct?
MR. SKLAR: I’ll object to form and foundation. You can answer if you know.
A.
I understand, and my witness will attest –
MR. SKLAR: Stop it. The question is –
A.
(Continuing) No
Q.
(By Ms. Forbush) So, your answer is yes?
A.
Yes.
(Thiede Dep. Dkt. #41-4 Pg. ID 1289.) Taking this testimony in the light most favorable
to Plaintiff, the court finds that Plaintiff did not admit that the reason for his suspension
was his alleged insubordination.
3
Though it is an immaterial point, the court noted at oral argument the seeming
oddity of a sanction that equates to awarding one additional day of paid vacation.

6

ID 1399.) Defendant Wojtylko continued: “[Plaintiff] knows that we’re coming after him
for those texts made while on duty, and he took the opportunity to react the way he did
at the RAC to deflect the attention to cover his ass.” (Id.)
Defendant Burcroff also advised McLachlan “as a friend” to distance himself from
Plaintiff because Plaintiff was toxic. (Id.) Defendant Burcroff allegedly told McLachlan
that the “RAC ‘incident’ was the least of ‘his problems.’” (Id.) Somewhat contradictorily,
he also apparently told McLachlan that he had spoken with Defendant Settles and that
the interaction at the RAC should have resulted in “no more than a verbal reprimand
because . . . it clearly never should have happened.” (Id.)
In September 2016, the City of Romulus adopted “Policy #34.” (Dkt. #37 Pg. ID
773.) Policy #34 provides:
From time to time, the City of Romulus may be sued in a Court of law. All
verbal or written communications, information or documents in the
possession of the city related to City business requested by a party to the
litigation, or by a third party on behalf of the party to the litigation, must be
coordinated through the City Attorney or the attorney representing the
City.
Therefore, all employees of the City shall not provide any information or
documents related to the City to a litigant or a third party representing a
litigant, unless otherwise designated by the Mayor.
Further, all information or documents related to the City must be provided
to the City Attorney, or other attorney representing the City in the litigation,
for distribution to the parties in the litigation or their representatives.
(Id.) There is no dispute that Plaintiff has never been found in violation of Policy #34.
II. STANDARD
Summary judgment is proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “In deciding a motion for summary judgment, the court must

7

view the evidence in the light most favorable to the non-moving party, drawing all
reasonable inferences in that party’s favor.” Sagan v. United States, 342 F.3d 493, 497
(6th Cir. 2003).
The movant has the initial burden of showing the absence of a genuine dispute
as to a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden
then shifts to the nonmovant, who must put forth enough evidence to show that there
exists “a genuine issue for trial.” Horton v. Potter, 369 F.3d 906, 909 (6th Cir. 2004)
(citation omitted). It is the parties’ responsibility to support their factual assertions by
citation to the record; the court is under no obligation to search for materials in the
record uncited by the parties. Fed. R. Civ. P. 56(c).
III. DISCUSSION
Plaintiff brings two claims arising from his suspension: First Amendment
retaliation and violation of the Michigan Whistleblower’s Protection Act (“WPA”). He also
seeks declaratory judgment that Policy #34 is an unconstitutional prior restraint on First
Amendment free speech. Each count will be addressed in turn.
A. First Amendment Retaliation
Plaintiff claims that the texts messages he exchanged with Guzall are
constitutionally-protected speech for which he was unlawfully disciplined.
“[T]he First Amendment protects a public employee’s right, in certain
circumstances, to speak as a citizen addressing matters of public concern.” Garcetti v.
Ceballos, 547 U.S. 410, 417 (2006). A claim for First Amendment retaliation requires
proof of three elements: “1) the plaintiff engaged in constitutionally protected speech; 2)
the plaintiff was subjected to adverse action or was deprived of some benefit, and 3) the

8

protected speech was a ‘substantial’ or a ‘motivating factor’ in the adverse action.”
Brandenburg v. Hous. Auth. of Irvine, 253 F.3d 891, 897 (6th Cir. 2001); see also
Jenkins v. Rock Hill Local Sch. Dist., 513 F.3d 580, 585–86 (6th Cir. 2008). Defendants
argue that Plaintiff’s texts are not protected First Amendment speech4 and that, even if
Plaintiff’s texts are protected, he has not established the required causal connection—a
“substantial” or “motivating” factor—between his speech and his suspension. The court
agrees with Defendants on both points.
The individual Defendants also argue that they are entitled to qualified immunity
on this claim (see Dkt. #33 Pg. ID 355–57; Dkt. #36 Pg. ID 753–57) and Defendant
Settles argues that Plaintiff’s claim against him in his official capacity should be
dismissed as duplicative of Plaintiff’s claim against Defendant City of Romulus (Dkt. #36
Pg. ID 753–57). The court does not address these latter arguments because
Defendants are entitled to summary judgment on other grounds.
1. Protected Speech
The court determines as a matter of law whether a public employee engaged in
constitutionally-protected speech. Farhat v. Jopke, 370 F.3d 580, 593 (6th Cir. 2004).
Where the plaintiff is a public employee, the plaintiff must meet three requirements to
establish that his speech is protected: (1) the employee’s speech must relate to a matter

4

Defendant Settles did not address the issue of protected speech in his motion,
and Plaintiff therefore argues that Defendant Settles “concedes that Plaintiff engaged in
conduct protected under the [First Amendment].” (Dkt. #42 Pg. ID 1678.) Defendant
Settles, however, filed a joinder and concurrence in the motion for summary judgment
by the other Defendants; that motion argued that Plaintiff’s speech is not entitled to
protection. (Dkt. #38 Pg. ID 1007.) Because the court decides whether Plaintiff’s speech
was protected as a matter of law, Farhat v. Jopke, 370 F.3d 580, 593 (6th Cir. 2004),
the court finds that Defendant Settles adequately challenged the status of Plaintiff’s
speech.

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of public concern, see Connick v. Myers, 461 U.S. 138, 143 (6th Cir. 2010); (2) if the
employee’s speech relates to a matter of public concern, the employee’s interest “in
commenting on matters of public concern . . . [must] outweigh[] the employer’s interest
in promoting the efficiency of the public services it performs through its employees,” see
Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968); and (3) the employee’s speech
must not be made “pursuant to . . . official duties,” Garcetti v. Ceballos, 547 U.S. 410,
421 (2006). These three requirements—the “public concern,” “balancing,” and “pursuant
to” requirements—must all be satisfied for a public employee’s speech to be protected.
Evans-Marshall v. Bd. of Educ., 624 F.3d 332, 338 (6th Cir. 2010). Defendants
challenge the first requirement: they argue that Plaintiff has not demonstrated that his
speech relates to a matter of public concern.
Speech addresses a matter of public concern when 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.” Brandenburg, 253 F.3d at
898 (internal quotation and citation omitted). “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.” Connick v. Myers, 461
U.S. 138, 147–48 (1983). Accordingly, the Sixth Circuit employs the “focus” test in
determining whether speech touches on a matter of public concern. Farhat v. Jopke,
370 F.3d 580, 592 (6th Cir. 2004). The court looks to the point or focus of the speech in
question and what the speaker intended to communicate. Id. It does not matter whether
the speech was communicated to the public at large; private conversations are also

10

entitled to protected status where the focus is a matter of public concern. Handy-Clay,
695 F.3d at 544.
The court examines the speech’s content, not the speaker’s motivation, when
determining its focus. Handy-Clay v. City of Memphis, 695 F.3d 531, 543–44 (6th Cir.
2012). Cursory references to private matters do not deprive otherwise protected speech
of its protected status. Farhat, 370 F.3d at 589 (“[T]he entire speech does not have to
address matters of public concern, as long as some portion of the speech does so.”).
But the reverse is also true, as minor or offhand comments will not blanket all of
a plaintiff’s speech with First Amendment protection. Id. “[T]he proper inquiry is not
what might be ‘incidentally conveyed’ by the speech, and . . . ‘passing’ or ‘fleeting’
references to an arguably public matter do not elevate the speech to a matter of ‘public
concern’” where private interests are the primary focus. Id. at 592–93.
Of particular difficulty are cases involving “mixed speech”: cases in which the
employee’s speech arises out of an “employment grievance or other personnel dispute”
and the employee claims some part of the speech touches on matters of public concern.
Farhat, 370 F.3d at 590; see also Connick v. Myers, 461 U.S. 138, 149 (1983) (holding
that one question in a survey containing fifteen touched on a matter of public concern
and proceeding to do a Pickering analysis). Where the “focus” of an employee’s speech
is an expression of personal grievances, the speech is not entitled to protection. Farhat,
370 F.3d at 593. This includes complaints “of a personal nature that come from working
with [a public official] on a daily basis rather than those that touch on political, policy, or
social matters affecting the public.” Dye v. Office of the Racing Comm’n, 702 F.3d 286,
296 (6th Cir. 2012).

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Concomitant with the right to speak is the right to listen. Kleindienst v. Mandel,
408 U.S. 753, 762–63 (1972). The freedom of speech “necessarily protects the right to
receive.” Id. (alterations omitted) (quoting Martin v. City of Struthers, 319 U.S. 141, 143
(1943)). What an employee hears is also entitled to constitutional protection, therefore,
where it touches on a matter of public concern.
Plaintiff argues that the text messages here “discuss matters at the height of
public concern.” (Dkt. #41 Pg. ID 1075.) Plaintiff avers that:
The text[s] discuss government corruption (TM 143),5 use of public funds
to settle a prior whistleblower lawsuit (TM 20, 1086), “shady” campaign
contributions (TM 30–31), falsification of public records and possible
insurance fraud by City officials (TM 48), misuse and waste of public funds
(TM 51, 239), destruction of evidence (TM 65), inefficient operation of
government (TM 95), excessive salaries for political appointees (TM 108,
142, 156, 403, 583, 1216), breach of public duty (TM 182), and
intimidation of a witness (TM 1189–1186 [sic]).
(Dkt. #41 Pg. ID 1074.) In all, Plaintiff cites about twenty out of over 1200 text messages
(depending on how one counts the apparent error in citation for the last set of texts).
The court has examined all of the cited texts Plaintiff cites. Six were sent by Plaintiff, the
rest were sent to Plaintiff by Guzall.

5

“TM,” as used by Plaintiff, means “text message.” Plaintiff cites the sequentiallynumbered text messages, attached as an exhibit to his response (Dkt. #41-3),
throughout his briefing. The court notes that Plaintiff seems to have made a
typographical error in his citation method—though the numbers in this exhibit refer to
the text appearing below the number, Plaintiff uses the numbers to refer to the text
message appearing above. (See, e.g., Dkt. #41-3 Pg. ID 1163. Plaintiff cites “TM 143”
as referring to “government corruption.” According to the exhibit, TM 143 reads: “Have
you heard anything about who will run against Burcroff next election?” TM 142, on the
other hand, reads: “All of council must be in Burcroff’s pocket.”) For the sake of clarity,
the court will use Plaintiff’s citation method and refer to the text appearing above the
identifying number.

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The first cited text sent by Plaintiff is one he identifies as referring to “use of
public funds to settle a prior whistleblower lawsuit.” It reads: “Like to kno [sic] how
dickerson steps down stating lambert had no integrity and cant [sic] work fir [sic] him yet
the city paid a settlement because he told a cop to destroy a tape.” (“TM 20” Dkt. #41-3
Pg. ID 1151.) Another text apparently covers the same topic: “Funny that the city settled
on the whistleblower case from the cop against dickerson and paid him off.” (“TM 1086”
Dkt. #41-3 Pg. ID 1253.) A third text refers to employee salaries: “U saw the salearies
[sic]. Monte and shelby over 200000.” (“TM 583” Dkt. #41-3 Pg. ID 1205.) Another two
texts6 read: “Yep” and “Fyi kevin ladach got demoted to patrolman.” (“TM 1187–88” Dkt.
#41-3 Pg. ID 1263.) Finally, Plaintiff cites what appears to be a photo message. (“TM
1216” Dkt. #41-3 Pg. ID 1267.) Next to the photo is some handwriting, the source or
veracity of which the court cannot identify, that reads: “The salaries thing I got from my
mother It [sic] was on her mailbox.” The court cannot decipher what is depicted in the
photo.
Guzall’s messages cover further complaints about the City and its employees.
Texts about “shady” campaign contributions include one that reads:
I am going to make sure that voters have a bullet point flyer of anything
that I am allowed to make public[.] it’s the right of the voters to be
informed[.] I am also going to get a copy of his campaign finance report
and highlight all of the donors that contributed to Lambert’s administration.
(“TM 30” Dkt. #41-3 Pg. ID 1152.) One about “misuse of public funds” includes:
Do you happen to know if Julie is allowed to be covered by the city’s
medical again? Was this just a creative way if [sic] giving her a bonus? Did
you know that lambert [sic] is telling people that he is running again? Have

6

In the range of TM 1186–1189, which the court assumes is what Plaintiff meant
to refer to in briefing.

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you heard anything like that? Funny since his attorney told the judge that
he was to be arraigned any day[.] these people are unbelievable!
(“TM 51” Dkt. #41-3 Pg. ID 1154.) Another on misuse of public funds: “Who is paid to
maintain the city’s FB page? I find it hysterical when there are misspelled words!!! Dear
god I hope that’s not what 90k buys you!!!” (“TM 239” Dkt. #41-3 Pg. ID 1173.) Texts on
“excessive salaries” include: “The residents need to start asking questions[.] they
deserve much better than this[.] fat cats making equally fat salaries without a thought
about the residents[.]” (“TM 403” Dkt. #41-3 Pg. ID 1188.)
Plaintiff has not established that his speech was protected. The court agrees with
Defendants that the text messages here are most appropriately categorized as personal
workplace grievances and complaints “of a personal nature that come from working with
[a public official] on a daily basis.” A cursory examination of the few text messages
appearing before and after each of Plaintiffs’ cited texts reveals that those cited by
Plaintiff are “fleeting” or “passing references” to matters of arguably public concern. The
focus of Plaintiffs’ conversations was Guzall’s complaints about her former coworkers
and the progress of her lawsuit.
TM 19, for example, reads: “Ironic, isn’t it? That he would request I be terminated
but hire Tim and Dickerson back after they ‘resigned’ because they couldn’t work for
Lambert lol.” (“TM 19” Dkt. #41-3 Pg. ID 1151.) TM 21 covers the lawsuit: “I guess Leroy
doesn’t care that they look like liars avoiding depositions . . . .” (“TM 21” Dkt. #41-3 Pg.
ID 1151.) So does TM 73: “I can’t wait to sit across from that big holier than thou Julie
and see her flat out lie[.] she’s such a woman of god[.]” (“TM 73” Dkt. #41-3 Pg. ID
1156.) This pattern continues on each cited page.

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Though Plaintiff styles the texts he does cite as “just a sample,” (Dkt. #41 Pg. ID
1075), it is Plaintiff’s burden—not the court’s—to examine the record and support his
factual assertions with citations. See Fed. R. Civ. P. 56(c). Plaintiff has cited a small
fraction of the text messages produced in the Guzall litigation, and even those are
surrounded by text messages unrelated to matters of public concern. On this record as
cited, the court cannot find as a matter of law that the “focus” of Plaintiff’s conversations
was “information . . . needed or appropriate to enable the members of society to make
informed decisions about the operation of their government.” Brandenburg, 253 F.3d at
898 (internal quotation and citation omitted). Plaintiff’s speech was not protected.
2. Causation
Even if Plaintiff had demonstrated that his speech was protected, however, he
cannot establish the third required element of a retaliation claim: that his suspension
was motivated by his speech.
To meet the causation element of First Amendment retaliation, a public employee
must demonstrate (1) that an individual defendant proximately caused the adverse
employment action and (2) that the individual defendant was “motivated in substantial
part by a desire to punish an individual for exercise of a constitutional right.” King v.
Zamiara, 680 F.3d 686, 695 (6th Cir. 2012). The causal element requires the employee
to “point to specific, nonconclusory allegations reasonably linking [his] speech to
employer discipline.” Rodgers v. Banks, 344 F.3d 587, 602 (6th Cir. 2003) (internal
quotations and citations omitted).
Because this element can “rarely” be met by production of direct evidence,
circumstantial evidence is most often required. Harbin-Bey v. Rutter, 420 F.3d 571, 580

15

(6th Cir. 2005). A plaintiff may therefore point to the “temporal proximity” between the
protected speech and the adverse action, and the temporal proximity may be so strong
as to “creat[e] an inference of retaliatory motive.” King, 680 F.3d at 695. The Sixth
Circuit, however, has been “reluctant” to find that temporal proximity is sufficient where
the plaintiff cannot point to other evidence of retaliatory motive. Coleman v. Bowerman,
474 F. App’x 435, 437 (6th Cir. 2012).
Comments made by individuals who were uninvolved in the adverse employment
decision—even where those comments seem to be retaliatory—are insufficient to
establish causation. Smith v. Campbell, 250 F.3d 1032, 1038 (6th Cir. 2001).
Plaintiff has not pointed to nonconclusory evidence in the record that would allow
a reasonable jury to find, by a preponderance of the evidence, that he was suspended
for his speech. Plaintiff’s factually-supported evidence amounts to the following: a
temporal link between his suspension and the speech at issue (around a month from
disclosure of the texts to suspension); testimony that Defendants Burcroff and Wojtylko
harbored some animus as a result of the text messages; Defendant Wojtylko’s
statement that “[Plaintiff] knows that we’re coming after him for those texts made while
on duty”; Defendant Burcroff’s “admission” of the “pretextual nature” of Plaintiff’s
suspension; and testimony that Defendant Settles’s decision to suspend Plaintiff was
unwarranted based on Plaintiff’s August 2 conduct. But in the context of the whole
record, this evidence is insufficient to withstand summary judgment.
Plaintiff alleges that Defendants Burcroff, Wojtylko, and City of Romulus are
responsible for his suspension after his encounter with Defendant Settles. Even
assuming, as the court must, that Defendants Burcroff and Wojtylko were upset over

16

learning about and reading some of Plaintiff’s text messages, Plaintiff has not
demonstrated that they were somehow involved in the August 2 interaction he had with
Defendant Settles. See Smith, 250 F.3d at 1038. Defendant Settles was the one who
decided to suspend Plaintiff, and there is nothing in the record to suggest that
Defendants Burcroff and Wojtylko were at all involved in that decision.
Plaintiff attempts to bridge this gap by claiming, without citation, that Defendant
Burcroff received “automatic notice” of Plaintiff’s location on August 2 because Plaintiff
and Defendant Burcroff were Facebook “friends” and Plaintiff posted his location on
Facebook. But this proposition is nowhere supported in the record. Tellingly, though
Plaintiff testified that he was Facebook friends with Defendant Burcroff (Thiede Dep.
Dkt. #41-4 Pg. ID 1302), Plaintiff has cited nothing indicating that he ever asked
Defendant Burcroff—at deposition or any other time—whether Defendant Burcroff
received or saw Plaintiff’s Facebook post. Plaintiff also says in briefing that he was
Facebook friends with Defendant Wojtylko (Dkt. #41 Pg. ID 1058), but he has cited
nothing in the record to support this assertion, either.
Plaintiff presents the court with a trail of inferences too long and tenuous to
survive summary judgment. Plaintiff asks a future jury to assume that Defendant
Burcroff saw Plaintiff’s Facebook post; that Defendant Burcroff realized—based on his
phone call about ordinance signs earlier in the day—that Plaintiff was in a position to be
blamed for violating the ordinance; that Defendant Burcroff communicated Plaintiff’s
location to Defendants Wojtylko and Settles or otherwise discussed Plaintiff at their
scheduled morning meeting (though the record does not reflect whether Plaintiff’s
Facebook post was made before or after that meeting); that one of the Defendants sent

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ordinance officers to the RAC to stage a run-in with Plaintiff; that Defendant Settles
waited until he was contacted by the City Ordinance Director before making his way to
Plaintiff’s location; that Defendant Settles then falsely accused Plaintiff of having a runin with the ordinance officers; and that all this happened despite the undisputed fact that
Defendant Settles never read the text messages at issue in this case.
To be sure, all of these events may have happened. But Plaintiff is not entitled to
raise the specter of possibilities without supporting evidence. The evidence Plaintiff
does point to—the temporal connection and the animus Defendants Burcroff and
Wojtylko may have had toward him and these text messages—cannot support the
weight of the otherwise unsupported inferences a jury would be required to find to
sustain liability. See Rodgers, 344 F.3d at 602.
Plaintiff’s case, in other words, is not one in which a temporal connection alone
can create an inference of retaliatory motive because Plaintiff has presented no other
evidence sufficient to demonstrate retaliation. While Plaintiff points to the statements
allegedly made by Defendants Burcroff and Wojtylko as evidence of retaliatory motive,
these statements cannot support that claim without some evidence that Burcroff and
Wojtylko were involved Plaintiff’s suspension. See Smith v. Campbell, 250 F.3d 1032,
1038 (6th Cir. 2001). The fact that Defendant Burcroff’s and Defendant Wojtylko’s views
of Plaintiff changed after reading these text messages is neither surprising nor sufficient
to withstand summary judgment where there is no evidence they were involved in his
interaction with Defendant Settles on August 2.
The court also fails to see, as Plaintiff would have it, how Defendant Burcroff’s
statement that the suspension “clearly never should have happened” amounts to a

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naked admission of pretext. It seems to the court that this statement could just as easily
be some acknowledgment that a suspension for alleged insubordination was
unwarranted. The court does not engage in credibility determinations on a motion for
summary judgment, but this statement—even if made—would not provide a jury with
enough evidence to find by a preponderance that Plaintiff was terminated as a result of
his speech.
Plaintiff has, in short, failed to demonstrate a causal chain that should be sent to
a jury. See Rodriguez v. Stryker Corp., 680 F.3d 568, 573 (6th Cir. 2012) (“Trial and
appellate courts must decide whether the inferences a party asks the jury to draw are
too speculative to be reasonable.”); Kalamazoo River Study Grp. v. Rockwell Int’l Corp.,
171 F.3d 1065, 1072 (6th Cir. 1999) (summary judgment appropriate where “the
evidence presented leaves a ‘gap’ that is simply too wide to allow a jury to speculate on
the ultimate issue of causation”); Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th
Cir. 1986) (“Evidence suggesting a mere possibility is not enough to get past the
summary judgment stage.”) Plaintiff virtually acknowledges the speculative nature of his
assertions by making statements like “Burcroff and Wojtylko most likely shared their
animus toward Plaintiff with Settles, who they saw and spoke to almost every day,” (Dkt.
#41 Pg. ID 1077 (emphasis added)), and “Plaintiff volunteered for Ms. Geiss and
Burcroff may also have learned of Plaintiff’s planned attendance at the RAC at that
time,” (Dkt. #41 Pg. ID 1079 (emphasis added)). Without support in the record, they
remain mere hopeful speculations, and are insufficient to survive summary judgment.
The court also notes that—to supplement the dearth of record evidence
establishing causation—Plaintiff seems to rely on allegations that some witnesses are

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not telling the truth. Plaintiff, for example, “disputes the truthfulness” of Defendant
Settles’s testimony that he was informed about the trouble at the RAC by the Ordinance
Director—not Defendant Burcroff or anyone else with knowledge that Plaintiff was there.
(Dkt. #42 Pg. ID 1668.) This, too, is insufficient to survive summary judgment. A party
may not rely on statements that his opponent is lying or misstating the truth—he must
come forward with evidence that creates a genuine issue of material fact. Plaintiff has
not done so, and Defendants are entitled to summary judgment.
B. Violation of the Michigan Whistleblower’s Act
The Michigan Whistleblower Protection Act (“WPA”), Mich. Comp. Laws
§ 15.362, “protects an employee against an employer’s retaliatory employment actions,
including discharge, when the employee is engaged in protected activity.” Whitman v.
City of Burton, 831 N.W.2d 223, 225 (Mich. 2013). Much like a claim for First
Amendment retaliation, a WPA claim requires the plaintiff to prove “(1) he or she was
engaged in protected activity as defined by the act, (2) he or she suffered an adverse
employment action, and (3) a causal connection exists between the protected activity
and the adverse employment action.” Id. at 229.
Plaintiff claims that Defendants’ actions violated the WPA for the same reasons
that they amount to First Amendment retaliation. He also argues that Defendant
Wojtylko’s “statement” that “we’re coming after him for those texts” is itself a violation of
the WPA because it is a threat made as a result of Plaintiff’s protected activity. (Dkt. #41
Pg. ID 1086 (citing Randazzo v. City of Inkster, No. 324149, 324400, 2016 Mich. App.
LEXIS 496, at *3 (Mar. 15, 2016)).).

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Defendants contend that Plaintiff’s WPA claim fails for two reasons: Plaintiff
cannot establish causation as required by the Act, and Plaintiff did not engage in
protected activity. For the reasons stated above, Plaintiff has not established that there
is a genuine issue of material fact as to whether his speech was a motivating factor in
his suspension. The court finds, therefore, that Defendants are entitled to summary
judgment on Plaintiff’s WPA claim arising out of his suspension.
Plaintiff’s WPA claims for suspension and Wojtylko’s comment also fail, however,
because he did not engage in activity protected by the Act. The WPA protects three
kinds of activity: “reporting a violation of law, regulation, or rule to a public body; being
about to report such a violation to a public body; and being asked by a public body to
participate in an investigation or court action.” Talhelm v. ABF Freight Sys., Inc., 364 F.
App’x 176, 188 (6th Cir. 2010). The statute defines “public body” as:
(i) A state officer, employee, agency, department, division, bureau, board,
commission, council, authority, or other body in the executive branch of
state government.
(ii) An agency, board, commission, council, member, or employee of the
legislative branch of state government.
(iii) A county, city, township, village, intercounty, intercity, or regional
governing body, a council, school district, special district, or municipal
corporation, or a board, department, commission, council, agency, or any
member or employee thereof.
(iv) Any other body which is created by state or local authority or which is
primarily funded by or through state or local authority, or any member or
employee of that body.
(v) A law enforcement agency or any member or employee of a law
enforcement agency.
(vi) The judiciary and any member or employee of the judiciary.

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Mich. Comp. Laws § 15.361(d). There is no dispute that Guzall is not a “public body” for
the purposes of the WPA. Indeed, Guzall was no longer employed with the City at the
time she and Plaintiff exchanged their text messages. (Thiede Dep. Dkt. #41-4 Pg. ID
1285.) To qualify as protected activity, then, Plaintiff’s speech must fall in the third
category: being asked by a public body to participate in an investigation or court action.
An employee may “participate” in an investigation or court action without actually
testifying or providing evidence—a request to participate is all that is required. Shaw v.
Ecorse, 770 N.W.2d 31, 39 (Mich. App. 2009). The Act itself does not define what it
means to “participate.” The dictionary defines “participate” as “to take part”; “to have a
part or share in something.” Participate, Merriam-Webster, available at
https://www.merriam-webster.com/dictionary/participate.
Plaintiff argues that his “participation in the Guzall suit occurred as soon as
Defendants obtained his texts by court order.” (Dkt, #41 Pg. ID 1085.) Plaintiff does not
dispute, however, that he was never subpoenaed or requested to provide information,
evidence, or testimony as part of the Guzall case. He did not, therefore, participate in
the litigation. He did not “take part” or “have a part” in the Guzall litigation. While his
previously recorded speech may have played a role in that case, he did not.
But, Plaintiff argues, the WPA, “[b]y its express terms,” (id. at Pg. ID 1084)
provides protection even when “a person [is] acting on behalf of the employee,” Mich.
Comp. Laws § 15.362. Thus, according to Plaintiff, he was requested to participate in
the Guzall litigation when Guzall handed over their text messages. Plaintiff fails,
however, to explain how Guzall was acting on his behalf in providing these text
messages. Guzall handed over the text messages because she was ordered to by the

22

court. Plaintiff has pointed to no evidence on the record demonstrating that Guzall’s
production of the texts pursuant to a court order was in any way done at his direction or
for his benefit. Indeed, he admits that he was not involved in their production and does
not even know when or how they were produced. (Thiede Dep. Dkt. #41-4 Pg. ID 1295,
1297.)
Plaintiff did not participate in the Guzall litigation. Plaintiff, therefore, is not
entitled to WPA protection on the basis that he participated in an investigation or court
action.
C. Policy #34
Finally, Defendants Burcroff, Wojtylko, and the City of Romulus have moved for
summary judgment on Plaintiff’s claim that Policy #34 is an unconstitutional prior
restraint on free speech. Plaintiff has cross moved, asking this court for declaratory
judgment that Policy #34 is unconstitutional and to enjoin its enforcement.
As noted above, the “First Amendment protects a public employee’s right, in
certain circumstances, to speak as a citizen addressing matters of public concern.”
Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). The employee’s right is limited,
however, by the fact that “[g]overnment employers, like private employers, need a
significant degree of control over their employees’ words and actions” to promote the
efficient and effective provision of public services. Id. at 418. Accordingly, “a
governmental employer may impose certain restraints on the speech of its employees,
restraints that would be unconstitutional if applied to the general public.” City of San
Diego v. Roe, 543 U.S. 77, 80 (2004).

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“A prior restraint is any law ‘forbidding certain communications when issued in
advance of the time that such communications are to occur.’” McGlone v. Bell, 681 F.3d
718, 733 (6th Cir. 2012). When analyzing a prior restraint on a public employee’s
speech, the court begins with the same two-part Pickering test it uses to evaluate
whether an employee’s speech is protected for a First Amendment retaliation claim. See
United States v. Nat’l Treas. Emps. Union, 513 U.S. 454, 465–68 (1995) (“NTEU”). The
court determines whether the employee was speaking as a citizen upon matters of
public concern and, if so, then asks whether the employee’s interest in speaking is
outweighed by “the interest of the State, as an employer, in promoting the efficiency of
the public services it performs through its employees.” Id. at 465–66 (citing Pickering v.
Bd. of Educ., 391 U.S. 563, 568 (1968)). A prior restraint requires an additional inquiry,
however, as the “Government must show that the interests of both potential audiences
and a vast group of present and future employees in a broad range of present and
future expression are outweighed by that expression’s necessary impact on the actual
operation of the Government.” Id. at 468 (internal quotation omitted).
1. Standing
The court begins with an issue not initially addressed by the parties: whether
Plaintiff, who was indisputably not punished under Policy #34, has standing to challenge
its constitutionality. Concerned about Plaintiff’s ability to establish standing, the court
ordered the parties to submit additional briefing on the issue. (Dkt. #47.) The court,
having reviewed the briefing, concludes that Plaintiff lacks standing to pursue his claim
for declaratory judgment.

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As noted in the court’s order directing further briefing, federal courts lack
jurisdiction where there is no “case” or “controversy” within the meaning of Article III of
the Constitution. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). “[S]tanding is
an essential and unchanging part of the case-or-controversy requirement of Article III.”
Id. The party invoking federal court jurisdiction has the burden to demonstrate standing.
Id. at 561. In response to a summary judgment motion, therefore, a plaintiff must come
forward with concrete evidence—not “mere allegations”—that establish standing.
McKay v. Federspiel, 823 F.3d 862, 867 (6th Cir. 2016).
Standing requires proof of three elements: (1) injury in fact, a violation of a
legally-protected interest that is both (a) concrete and particularized and (b) “actual or
imminent, not conjectural or hypothetical”; (2) a causal connection between the injury
and the complained-of conduct; and (3) redressability, that it is likely that the injury will
be redressed by a favorable decision. Lujan, 504 U.S. at 560 (internal quotations
omitted).
Standing does not always require that a plaintiff challenging the constitutionality
of a law have that law enforced against him. That is, a plaintiff need not “first expose
himself to actual arrest or prosecution to be entitled to challenge a statute that he claims
deters the exercise of his constitutional rights.” Steffel v. Thompson, 415 U.S. 452, 459
(1974). He must, however, allege “an intention to engage in a course of conduct
arguably affected with a constitutional interest, but proscribed by a statute, and there
exists a credible threat of prosecution thereunder.” Susan B. Anthony List v. Driehaus,
__ U.S. __, 134 S. Ct. 2334, 2342 (2014) (quoting Babbitt v. Farm Workers, 442 U.S.
289, 298 (1979)). Each of these allegations—intent to engage in conduct affected with a

25

constitutional interest, proscription by statute, and threat of prosecution—is analyzed
separately. See, e.g., id. at 2343–47; McKay v. Federspiel, 823 F.3d 862, 868 (6th Cir.
2016); Kiser v. Reitz, 765 F.3d 601, 608–10 (6th Cir. 2014).
Plaintiff has failed to establish this last requirement: threat of prosecution.
Though allegations of overbreadth and vagueness are sometimes called
“exceptions” to traditional standing rules, see Savage v. Gee, 665 F.3d 732, 740 (6th
Cir. 2012), standing still requires a plaintiff to point to “some specific action on the part
of the defendant in order for the litigant to demonstrate an injury-in-fact,” Morrison v. Bd.
of Educ., 521 F.3d 602, 609 (6th Cir. 2008). Injury-in-fact therefore requires a plaintiff to
show that enforcement occurred or is imminent—allegations of subjective chill are
insufficient. “[A]bsent proof of a concrete harm, where a First Amendment plaintiff only
alleges inhibition of speech, the federal courts routinely hold that no standing exists.” Id.
at 609.
Imminence may be found “where plaintiffs allege a subjective chill and point to
some combination” of other facts demonstrating likely enforcement. McKay, 823 F.3d at
869 (emphasis original). A plaintiff may point to: “(1) a history of past enforcement
against the plaintiffs or others; (2) enforcement warning letters sent to the plaintiffs
regarding their specific conduct; and/or (3) an attribute of the challenged statute that
makes enforcement easier or more likely,” like a provision permitting members of the
public to initiate enforcement actions. Id. (internal citations omitted). The court may also
take into account a defendant’s refusal to “disavow enforcement” against the particular
plaintiff. Id.

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No such facts are alleged here. In response to the court’s order for supplemental
briefing, Plaintiff has—for the first time—put before the court his own affidavit, in which
he describes the kind of conduct he is afraid to engage in because of Policy #34.
Specifically, Plaintiff alleges that “I have limited my communications with Ms. Guzall
because I am fearful that I will be disciplined and perhaps even discharged if I violate
Policy #34 and communicate with Ms. Guzall as I did before Romulus implemented
Policy #34.” (Thiede Decl. Dkt. #48-1 Pg. ID 2275.) He similarly alleges that he is
“fearful of speaking to other employees” about this case and “fearful of communicating
with any person involved in litigation with Romulus” because of Policy #34. (Id.)
What Plaintiff does not allege is any fact that, under prevailing law, would
demonstrate enforcement of Policy #34 is imminent. He does not allege that Policy #34
has been enforced against any City employee, including himself. (Indeed to date, the
court has only the testimony of Defendants Burcroff and Wojtylko that Policy #34, to
their knowledge, has not been enforced.) He does not allege he has received some
warning letter under Policy #34 regarding his specific conduct. He does not allege that
some member of the public may initiate enforcement of Policy #34. And he does not
credibly allege that Defendants have refused to disavow enforcement of Policy #34.
(Contrary to Plaintiff’s assertion (Dkt. #48 Pg. ID 2270), silence as to enforcement of
Policy #34 does not amount to a refusal to disavow enforcement.) Instead, his allegation
that the threat of enforcement is sufficiently imminent rests on his belief that he was
impermissibly suspended for the texts he sent—actions that occurred prior to the
promulgation of Policy #34 and that, as noted above, lack sufficient factual
underpinning. (See Dkt. #48 Pg. ID 2269.)

27

The court grants that there is some ambiguity in what conduct might be
proscribed by Policy #34. Though Policy #34—when read as a whole—seems aimed at
discovery requests that a public employee might respond to, Policy #34’s middle
directive amounts to a ban on all speech with a litigant, regardless of whether the
speech is in response to a discovery request or not. The prohibition reads: “Therefore,
all employees of the City shall not provide any information or documents related to the
City to a litigant or a third party representing a litigant, unless otherwise designated by
the Mayor” (emphasis added). This provision, as Plaintiff points out, makes no
distinction between official and unofficial speech.
But Defendants Burcroff, Wojtylko, and City of Romulus continually repeat, in
both briefing and at argument, that Policy #34 applies “only to requests for information
by a party or their representative in such litigation.” (See, e.g., Dkt. #40 Pg. ID 1036.)
They say that Policy #34 applies only to situations involving discovery requests in
pending litigation. To the extent, then, that Plaintiff claims he is censoring himself by not
speaking to Guzall or other City employees about the pending Guzall litigation or this
case (see Thiede Decl. Dkt. #48-1 Pg. ID 2275), the court finds that his conduct
amounts to a subjective chill. The court cannot find, based on Plaintiff’s presented
evidence, that enforcement of Policy #34 is imminent. Plaintiff has not established
standing.
The court notes that rather than point to some fact demonstrating that
enforcement of Policy #34 is imminent, Plaintiff seems to argue that no such fact is
required. He quotes Miller v. City of Wickliffe, 852 F.3d 497, 506 (6th Cir. 2017): “A
threat is credible, in this context, if a person must censor herself to avoid violating the

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law in question.” 852 F.3d at 506 (citing Platt v. Bd. of Comm’rs, 769 F.3d 447 (6th Cir.
2014); Carey v. Wolnitzek, 614 F.3d 189 (6th Cir. 2010)). But the keyword there is
“must”—Miller (and the cases it cites as being “in this context”) dealt with statutes
amounting to an outright prohibition on certain types of speech in which a Plaintiff had
demonstrated an intent to engage. They did not consider, as here, restrictions on
speech resulting in a plaintiff’s subjective chill.
In Miller, the plaintiffs made as-applied and facial challenges to a city ordinance
requiring night clubs to apply for a permit. Id. at 502. The Sixth Circuit noted that to
establish standing and ripeness in the First Amendment context, the plaintiffs would
have to censor themselves to avoid violating the ordinance. Id. at 506. They would
have, in other words, had to have planned to operate a night club without a permit, but
self-censored to avoid violating the ordinance. The Sixth Circuit held that the plaintiff’s
claims were not ripe, however, because the plaintiffs had indisputably not applied for a
permit. Id. The plaintiffs in Miller, notably, made no allegations of “subjective chill”: they
did not allege that they censored themselves out of fear of violating the ordinance or out
of some anticipation that they might be prosecuted.
So, too, with Platt and Carey. Both Platt and Carey dealt with state campaign
restrictions on candidates for judicial office. See Platt, 769 F.3d at 450; Carey, 614 F.3d
at 193. In each of those cases, the plaintiffs established that they planned on engaging
in conduct directly prohibited by the various statutes at issue. Platt, 769 F.3d at 452
(noting that the plaintiff “wishe[d] to publicly endorse candidates, personally and directly
solicit campaign funds, and begin receiving campaign contributions earlier than 120–
days before the primary,” violations of the challenged law); Carey, 614 F.3d 196 (noting

29

that the plaintiff “want[ed] to let voters know his party affiliation[,] . . . to solicit campaign
funds directly, . . . [and] to answer judicial questionnaires propounded by a local right-tolife organization,” in contravention of the challenged law). Both Platt and Carey noted
that while the challenged laws “at least chill[ed]” speech, some aspects of the plaintiffs’
intended speech were also outright prohibited. Platt, 769 F.3d at 452; Carey, 614 F.3d
196. The Platt and Carey plaintiffs had not alleged that they were subjectively chilled by
potential prosecution under the statutes. Rather, they alleged that they wanted, as
judicial candidates, to engage in conduct directly proscribed by the statute. The Sixth
Circuit determined that the outright prohibitions on their speech made enforcement
sufficiently imminent to confer standing.
Plaintiff’s allegations of subjective chill, without more, do not render enforcement
of Policy #34 sufficiently imminent to confer standing. Plaintiff therefore lacks standing
to pursue this claim, and Defendants are entitled to summary judgment.
IV. CONCLUSION
Defendants have demonstrated that there is no genuine issue of material fact as
to Plaintiff’s claims for First Amendment retaliation or violation of the Michigan
Whistleblower’s Protection Act. Plaintiff, moreover, lacks standing to pursue his claim
for declaratory judgment as to Policy #34. Accordingly,
IT IS ORDERED that Defendants Burcroff, Wojtylko, and City of Romulus’ motion
for summary judgment (Dkt. #33) is GRANTED.
IT IS FURTHER ORDERED that Defendant Settles’s motion for summary
judgment (Dkt. #36) is GRANTED.

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IT IS FURTHER ORDERED that Plaintiff’s motion for partial summary judgment
(Dkt. #37) is DENIED.
A separate judgment will issue.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE

/

Dated: January 18, 2018
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, January 18, 2018, by electronic and/or ordinary mail.

s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]
S:\Cleland\KNP\Civil\16-13650.THIEDE.summary.judgment.KNP3.RHC.docx

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