Faraone v. Heath et al

Filing 44

MEMORANDUM OPINION and ORDER Denying 42 MOTION for Reconsideration - Signed by District Judge Judith E. Levy. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Michael A. Faraone,
Plaintiff,
v.

Case No. 15-13834
Judith E. Levy
United States District Judge

Patrick J. Heath, Julie L.
Goldman, Daphne M. Johnson,
and Denise R. Allsberry, in their
individual capacities,

Mag. Judge R. Steven Whalen

Defendants.
________________________________/
OPINION AND ORDER DENYING MOTION FOR
RECONSIDERATION [42]
Before the Court is plaintiff Michael A. Faraone’s motion for
reconsideration of the order granting defendants’ motion for summary
judgment. (Dkt. 42.)
For the reasons set forth below, plaintiff’s motion is denied.
I.

Background
Plaintiff is an attorney who previously served as an independent

contractor for the Parole Violation Unit of the Michigan Department of
Corrections (“MDOC”).

In this position, he represented parolees

charged with parole violations during hearings before administrative
law examiners (“ALEs”). He received compensation of $45 per hour for
up to six hours of work for each case. (Dkt. 20 at 4.)
Plaintiff appeared at hearings at which Parole Violation Specialist
Cynthia VanLake was also present.

Plaintiff believed Ms. VanLake

was inefficient and wasting public time and money by, among other
things, repeatedly adjourning cases.

As plaintiff said during his

deposition, “[T]he real problem we had – I’m almost willing to say the
only problem I had with her was the unpreparedness.” (Dkt. 27-2 at 5
(Pl’s. Dep.)). And because plaintiff was compensated for only six hours
per case, the adjournments allegedly caused him to lose money.
Plaintiff’s wife wrote to the head of the Parole Violation Unit about the
losses he was incurring, stating that Ms. VanLake’s conduct made
“things more difficult and, ultimately extremely costly” for plaintiff,
eventually causing him to lose clients and “[write] off thousands upon
thousands of dollars.” (Dkt. 30-8 at 1.)
Plaintiff complained about Ms. VanLake’s conduct to defendant
Patrick J. Heath, who discussed the matter with the other defendants.

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Defendants decided to inform plaintiff that his services would no longer
be required.
Plaintiff then filed this complaint against defendants Patrick J.
Heath, Julie L. Goldman, Daphne M. Johnson, and Denise R. Allsberry.
Plaintiff claimed he was terminated in retaliation for threatening to
“inform the public that their resources were being wasted” by Ms.
VanLake’s conduct.

(Dkt. 1 at 5.)

Specifically, he alleges that he

“engaged in protected activity under the First Amendment by speaking
as a citizen on a matter of public concern, i.e. government waste by an
MDOC employee,” and his termination “violated well-established First
Amendment rights by censoring speech.” (Id. at 6.)
On January 18, 2017, the Court held a hearing on defendants’
motion for summary judgment, and granted the motion. (See Dkt. 40.)
Plaintiff then filed this motion for reconsideration, arguing that he had
brought a claim for First Amendment retaliation with respect to the
petition clause, not just the speech clause, and the Court erred in failing
to consider it. (Dkt. 42 at 3.)

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II.

Legal Standard
A motion for reconsideration should be granted “if the movant

demonstrates a palpable defect by which the court and the parties have
been misled and that a different disposition of the case must result from
a correction thereof.” In re Greektown Holdings, LLC, 728 F.3d 567,
573–74 (6th Cir. 2013). “A palpable defect is one that is ‘obvious, clear,
unmistakable, manifest, or plain.’” Majchrzak v. Cty. of Wayne, 838 F.
Supp. 2d 586, 596 (E.D. Mich. 2011).
III. Analysis
Plaintiff claims the decision to grant defendants’ motion for
summary judgment was erroneous because the Court concluded
plaintiff did not bring a First Amendment retaliation claim for
exercising his right to petition the government. Plaintiff argues the
Court should have found plaintiff pleaded the petition clause component
of the retaliation claim based on the analysis in Enterprises Leonard
Inc. v. Montrose, Case No. 15-cv-12480, 2016 WL 5073680 (E.D. Mich.
Sept. 20, 2016).
Plaintiff has not identified a palpable defect that misled the Court
to an erroneous conclusion. Plaintiff raised the Montrose case during
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the January 18, 2017 hearing, and the Court articulated on the record
that the circumstances of that case were not analogous to plaintiff’s
complaint.

In Montrose, plaintiff had previously filed complaints

against the township and pleaded that the township retaliated against
her for these complaints.

The Montrose court concluded that even

though plaintiff did not expressly bring suit under the petition clause,
because of the allegations made in the complaint, plaintiff had
sufficiently pleaded such a claim. Montrose, 2016 WL 5073680, at *2–3.
In this case, plaintiff has not previously filed a lawsuit against
defendants and did not articulate in the complaint that he believed he
was terminated for more than threatening to expose public waste,
which is an exercise of his right to free speech.
Although plaintiff may have discussed his right to petition with
defendants outside of court and prior to commencement of this lawsuit,
these discussions cannot cure the fact that he has not referenced the
petition clause expressly or by implication in the complaint.

And

defendants must be on notice from the complaint, not prior interactions
outside of court, of the charges against them. Nothing in the complaint
would place defendants on notice that plaintiff was filing a complaint
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under the petition clause of the First Amendment.

Thus, plaintiff’s

motion for reconsideration does not identify a palpable defect that
misled the Court and raises only arguments the Court considered and
previously decided.
Additionally, the Court ruled during the hearing that even if
plaintiff had stated a claim with respect to the petition clause, the
public concern test applicable to the free speech clause was similarly
applicable to the petition clause claim. See Borough of Duryea, Pa. v.
Guarnieri, 564 U.S. 379, 389 (2011). And because plaintiff could not
demonstrate

his

dispute

regarding

Ms.

VanLake’s

alleged

unpreparedness and requests for adjournments was a matter of public
concern,1 plaintiff could not prevail, as a matter of law, on a claim
under the petition clause.

Accordingly, plaintiff’s motion for

reconsideration is denied. See LR 7.1(h)(3).

As set forth on the record, plaintiff’s dispute appears to be a personal problem with
another employee, not a matter of public concern. This is evidenced by plaintiff’s
deposition, during which he said, “[T]he real problem we had – I’m almost willing to
say the only problem I had with her was the unpreparedness.” (Dkt. 27-2 at 5 (Pl’s.
Dep.)).

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IV.

Conclusion

For

the

reasons

set

forth

above,

plaintiff’s

motion

for

reconsideration (Dkt. 42) is DENIED.
IT IS SO ORDERED.
Dated: March 21, 2017
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on March 21, 2017.
s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

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