Fritz v. Comstock, Charter Township of et al

Filing 43

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN S O U T H E R N DIVISION

S U E FRITZ, P l a in tif f , F ile No. 1:07-CV-1254 v. H O N . ROBERT HOLMES BELL C H A R T E R TOWNSHIP OF COMSTOCK, a n d TIM HUDSON, individually and in his official capacity as Supervisor for the Charter Township of Comstock, D e f e n d a n ts . / OPINION P la in tif f brought this action against a township and its supervisor alleging a federal re ta lia tio n claim and state tort claims. Defendants have filed a motion for judgment on the p le a d in g s pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons that follow Defendants' motion will be granted as to Plaintiff's federal claim and the Court w ill dismiss without prejudice Plaintiff's state law tort claims. I. P la in tif f Sue Fritz alleges in her complaint that she was an independent agent for the F a rm Bureau Insurance Company ("Farm Bureau") doing business as the Fritz Agency out o f her home office in Kalamazoo County. (Compl. ¶¶ 1, 7). In May 2005 Plaintiff p u rc h a s e d property in Comstock Township contingent on receiving approval for a home

o f f ic e . (Id. at ¶ 8.) She applied for a Special Use Permit and attended meetings of the C o m s to c k Planning Commission and Board of Trustees meetings. (Id. at ¶¶ 9-10.) Plaintiff n o tic e d many procedural improprieties at those meetings. (Id. at ¶ 11.) Defendant Tim H u d so n , Supervisor of Comstock Township, expressed irritation at her presence at Township m e e tin g s when she was not on the agenda. (Id. at ¶¶ 12-13.) Plaintiff's home office was a p p ro v e d in October 2005, but Plaintiff learned that Township zoning ordinances restricted th e way she could conduct business. (Id. at ¶¶ 14, 16.) The Township denied Plaintiff's re q u e s t for a zoning variance. (Id. at ¶¶ 17-18.) On February 29, 2006, the Township issued P la in tif f a signage violation. (Id. at 19.) In late 2005 and early 2006 citizens and Township o f f ic ia ls made false statements about Plaintiff and her home office. (Id. at ¶¶ 15, 21.) In July 2 0 0 6 Plaintiff complained to Defendant Hudson about Township officials falsely accusing h e r of zoning and other violations and about a neighbor's harassment. (Id. at ¶¶ 22-23.) On th re e occasions between July 28, 2006, and March 1, 2007, Defendant Hudson spoke with P la in tif f 's Farm Bureau supervisor by phone and advised him that Plaintiff's comments at T o w n sh ip planning commission meetings and other conduct were antagonizing the people o f Comstock Township and were damaging to Farm Bureau. (Compl. ¶¶ 24-28, 32, 34-36.) O n March 22, 2007, Plaintiff's supervisor terminated her relationship with Farm Bureau b e c au s e of "controversial community relations with your neighbors and with the local g o v ern m en tal unit." (Compl. ¶ 39.)

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P la in tif f alleges in Count I of her complaint that Defendants retaliated against her for s p e a k in g out on matters of public interest by "threatening her" and "speaking to her employer in an unlawful, improper and unprivileged way." (Compl. ¶ 46.) She alleges that as a result o f Defendants' unlawful actions she has suffered and will continue to suffer loss of income, lo s s of goodwill, damages to her personal and business reputation, loss of business o p p o rtu n itie s , emotional distress, anger, and loss of enjoyment of life. (Compl. ¶ 43.) P la in tif f alleges in Count II of her complaint that Defendants are liable under state law for to rtio u s interference with contract, tortious interference with business relationship or e x p e c ta n c y, and defamation. Defendants have moved for judgment on the pleadings 1 pursuant to Rule 12(c) of the F e d e ra l Rules of Civil Procedure. II. T h e standard o f review for a Rule 12(c) motion for judgment on the pleadings is n e a rly identical to that employed for a Rule 12(b)(6) motion to dismiss for failure to state a c la im upon which relief can be granted. Kottmyer v. Maas, 436 F.3d 684, 689 (6th Cir. 2 0 0 6 ). In reviewing a Rule 12(c) motion the court "must construe the complaint in the light m o s t favorable to the plaintiff, accept all of the complaint's factual allegations as true, and d e ter m in e whether the plaintiff undoubtedly can prove no set of facts in support of his claim

Although Defendants describe their motion as one for summary judgment, they rely o n Rule 12(c) and they have not presented matters outside the pleadings. See Fed. R. Civ. P . 12(d). 3

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th a t would entitle him to relief." Ziegler v. IBP Hog Market, Inc., 249 F.3d 509, 512 (6th C ir. 2001) (citations omitted). However, the court does not need to accept as true legal c o n c lu s io n s or unwarranted factual inferences. Kottmyer, 436 F.3d at 689. III. D e f en d a n ts contend that even if the Court accepts all of Plaintiff's allegations as true a n d construes the complaint in the light most favorable to Plaintiff, Plaintiff can prove no set o f facts in support of her first amendment retaliation claim that would entitle her to relief. To state a claim under 42 U.S.C. § 1983, a plaintiff must properly allege two e le m e n ts : "(1) that the defendant was acting under color of state law, and (2) that the o f f en d in g conduct deprived the plaintiff of rights secured under federal law." Mezibov v. A lle n , 411 F.3d 712, 716-17 (6th Cir. 2005) (citing Bloch v. Ribar, 156 F.3d 673, 677 (6th C ir. 1998)). Plaintiff has alleged that Defendant Hudson was employed as the Township S u p erv isor and that he had improper conversations with Plaintiff's employer/supervisor. A lth o u g h Plaintiff's allegations do not make it clear whether Defendant Hudson was acting u n d e r color of state law when he had these conversations, the Court will assume, for p u rp o s e s of this motion, that Plaintiff has adequately alleged state action. The second element of a § 1983 claim requires a showing that the offending conduct d e p riv e d the plaintiff of rights secured under federal law. In order to allege retaliation based

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u p o n the exercise of constitutional rights, the plaintiff must allege facts to support the f o llo w in g three elements: (1) the plaintiff engaged in constitutionally protected conduct; (2) an adverse ac tio n was taken against the plaintiff that would deter a person of ordinary f irm n e ss from continuing to engage in that conduct; and (3) the adverse action w a s motivated at least in part by the plaintiff's protected conduct. M e zib o v , 411 F.3d at 717 (citing Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir.1999) (en b an c)). T h e re is no dispute that Plaintiff has adequately alleged that she engaged in protected c o n d u c t. Defendants contend, however, that she has not adequately alleged that an adverse a c tio n was taken against her by them. Defendants contend that, because they exercised no au tho rity or control over Farm Bureau's decision to terminate Plaintiff, Plaintiff's te rm in a tio n does not constitute an adverse action for purposes of her retaliation claim. See S h e h e e v. Luttrell, 199 F.3d 295, 301 (6th Cir. 1999) (holding that despite the allegation that th e defendants instigated the plaintiff's firing, the defendants did not have the ability to te rm in a te the plaintiff, so the plaintiff did not set forth a valid First Amendment retaliation c la im against them). Plaintiff contends that, contrary to Defendants' assumptions, she is not claiming that h e r termination was the adverse action. (Dkt. No. 29, Pl.'s Br. in Opp. 3.) She contends that th e adverse action is the following: Tim Hudson's acts of informing Farm Bureau of his dislike and opposition to M s . Fritz's speech that she made in Comstock Township forums, that she sh o u ld refrain from doing so in the future, and warning Farm Bureau that its 5

p re se n c e in the community would be jeopardized if she did not refrain from d o in g so in the future . . . . (Id . at 4.) " [ A ]n adverse action is one that would `deter a person of ordinary firmness' from the e x e rc is e of the right at stake." Thaddeus-X, 175 F.3d at 396 (quoting Bart v. Telford, 677 F .2 d 622, 625 (7th Cir. 1982)). The standard is an attempt to balance the tension between two propositions: F irs t, the injury suffered need not be great because there is no justification for h a ra s s in g people for exercise of their constitutional rights; but second, a c o n stitu tio n a l tort ­ like any tort ­ requires injury, and allowing constitutional r e d re s s for every minor harassment may serve to trivialize the First A m e n d m e n t. Mattox v. City of Forest Park, 183 F.3d 515, 521 (6th Cir. 1999). " T h e term `adverse action' is drawn from employment case law." Thaddeus-X, 175 F .3 d at 396. Examples of "adverse action" in the employment context include discharge, d e m o tio n s , refusal to hire, nonrenewal of contracts, and failure to promote. Id. The analysis o f whether an act qualifies as an adverse action must be tailored to the circumstances of the s p e c if ic retaliation claim. Mezibov, 411 F.3d at 721. As noted in Thaddeus-X, "[p]risoners m a y be required to tolerate more than public employees, who may be required to tolerate m o re than average citizens, before an action taken against them is considered adverse." 175 F .3 d at 398. "[T]he adverseness inquiry is an objective one, and does not depend upon how th e particular plaintiff reacted." Bell v. Johnson, 308 F.3d 594, 606 (6th Cir. 2002) (citing T h a d d eu s-X , 175 F.3d at 398).

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In some cases allegations of injury based solely on "embarrassment, humiliation, and e m o tio n a l distress" stemming from the public release of information has been deemed s u f f ic ie n t to state a § 1983 retaliation claim. For example, in Bloch v. Ribar, 156 F.3d 673 (6 th Cir. 1998), Mr. and Mrs. Bloch alleged that the sheriff publicly released highly personal a n d extremely humiliating details about Mrs. Bloch's rape in response to the Bloch's public c ritic is m s of the sheriff's investigation into the crime. The plaintiffs further alleged that the re le a se of the details was unnecessary and had no nexus to their criticism of the investigation. W h ile acknowledging the sheriff's right to respond to criticism, the Sixth Circuit held that th e right to respond was not unlimited, and that the plaintiffs' allegations were sufficient to a lle g e adverse action and to state a cognizable § 1983 retaliation claim. Id. at 676-80. In Barrett v. Harrington, 130 F.3d 246 (6th Cir. 1997), a judge made false public c la im s that the plaintiff had been "stalking, harassing, and otherwise intimidating her,"and d id so with a "retaliatory motive to publicly humiliate and denigrate" the plaintiff. Id. at 2626 3 . The Sixth Circuit held that the plaintiff had properly alleged retaliation in violation of 4 2 U.S.C. § 1983. Id. at 263. Bloch and Barrett do not suggest that allegations of public disclosure of derogatory in f o rm a tio n is always sufficient to trigger constitutional protection. For example, in Mattox, a city council member and a fire department volunteer brought an action against the city, the p o lic e chief, the city manager and a police officer, alleging that the defendants retaliated ag ains t them for raising concerns about the fire department by releasing to the public a report

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o f their investigation into the fire department. Mattox, 183 F.3d at 517-18. The plaintiffs a lle g e d that the report included statements that were unfavorable to them and revealed e m b a r ra ss in g personal details. The Sixth Circuit compared their case to Bloch and Barrett a n d concluded that neither plaintiff had alleged an adverse action sufficient to sustain a claim o f First Amendment retaliation. Mattox, 183 F.3d at 523. As to the plaintiff city council m e m b e r , the Sixth Circuit reasoned that a deliberate attempt to discredit her, even if initiated in retaliation for her actions in investigating the fire department, was not the type of "adverse a c tio n " against which the First Amendment protects because the alleged action was not e q u iv a le n t to being fired by a government employer for expressing protected views, and " [ p ]u b lic officials may need to have thicker skin than the ordinary citizen when it comes to a tta c k s on their views." Id. at 522. As to the plaintiff fire department volunteer, the Sixth C irc u it reasoned that she failed to plead sufficient injury because, although she alleged d isc lo su re of embarrassing information about her office affairs, the revelations at issue did n o t "rise to the level of those in Bloch or Barrett." Id. at 523. The allegations in this case are more similar to the allegations in Mattox than to the a lle g a tio n s in Bloch and Barrett. Plaintiff has not alleged the disclosure of confidential, h i g h ly personal, or extremely humiliating details regarding her personal life such as those a lle g e d in Bloch. Neither has she alleged that Defendants falsely accused her of a crime such a s that alleged in Barrett. Plaintiff acknowledges that she attended and spoke out at public h e a rin g s and voiced her views in the local paper. She acknowledges that her actions

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p ro v o k e d public criticism. When a citizen voluntarily joins the public debate and publicly e x p re ss e s her own opinions on public matters, she opens herself to criticism of her actions a n d views on those same public matters. Plaintiff complains that defendants communicated th e ir dislike and opposition to her speech. (Pl.'s Br. in Opp. 4.) These communications c le a rly had a nexus to Plaintiff's own speech, and they did not exceed the right to respond to criticism. See Samad v. Jenkins, 845 F.2d 660, 663 (6th Cir. 1988) ("Ironically, plaintiff is accusing defendants of chilling his first amendment freedoms by reserving their own first a m e n d m e n t right to speak out."). Under the circumstances of this case Plaintiff has not a ll e g e d the kind of adverse action that would deter a person of ordinary firmness from c o n tin u in g to engage in the protected conduct. Accordingly, Plaintiff's allegations are not s u f f ic ie n t to state a claim for First Amendment retaliation. III. D e f en d a n ts have requested dismissal of the state tort claims asserted in Count II on th e basis of governmental immunity. It is not necessary for the Court to address the state law immunity issue. District c o u rts have discretion to refuse to exercise supplemental jurisdiction over state law claims if "the district court has dismissed all claims over which it has original jurisdiction." 28 U .S .C . § 1367(c)(3). "`When all federal claims are dismissed before trial, the balance of c o n sid e ra tio n s usually will point to dismissing the state law claims, or remanding them to s ta te court if the action was removed.'" Novak v. MetroHealth Med. Ctr., 503 F.3d 572, 583

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(6 th Cir. 2007) (quoting Musson Theatrical v. Fed. Express Corp., 89 F.3d 1244, 1254-55 (6 th Cir. 1996)). The decision on whether to exercise supplemental jurisdiction depends on " ju d ic ia l economy, convenience, fairness, and comity." Musson, 89 F.3d at 1254 (quoting C a rn e g ie- M e llo n Univ. v. Cohill, 484 U.S. 343, 350 (1988)). With these considerations in m in d , the Court declines to exercise jurisdiction over Plaintiff's state law tort claims. A c c o rd i n g l y, the state law tort claims asserted in Count II of Plaintiff's complaint will be d is m is s e d without prejudice. An order and judgment consistent with this opinion will be entered.

Dated: November 26, 2008

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

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