Fritz v. Comstock, Charter Township of et al

Filing 71

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

F r i t z v. Comstock, Charter Township of et al

D o c . 71

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 public body, and TIM HUDSON, individually and in his official capacity as S u p e rv is o r for the Charter Township of C o m s to c k , D e f e n d a n ts . / OPINION T h i s action alleging First Amendment retaliation is before the Court on Defendants' s e c o n d motion for summary judgment.1 (Dkt. No. 60.) For the reasons that follow, D e f en d a n ts ' motion will be granted. I. In 2005 Plaintiff Sue Fritz became an independent agent for the Farm Bureau In s u ra n c e Company ("Farm Bureau"), doing business as the Fritz Agency, out of an office in Comstock Township, in Kalamazoo County, Michigan. In June 2005, the Comstock T o w n s h ip Zoning Board of Appeals denied Plaintiff's request for a variance to operate an

Although denominated a "second" motion for summary judgment, Plaintiff's first m o tio n for summary judgment requested judgment on the pleadings pursuant to Fed. R. Civ. P . 12(c). (Dkt. No. 25.)

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in -h o m e insurance office in a single family residential district. (Dkt. No. 66, Def.'s Br., Ex. 3 0 , Zoning Bd. Mins.) However, after the Township Board adopted a zoning text

a m e n d m e n t, the Planning Commission approved Plaintiff's application for a special e x c ep tio n use permit to operate an insurance office in a residential district. (Def.'s Ex. 4, H u d s o n Dep. 50; Def.'s Ex. 31, Twp. Bd. Mins.; Def.'s Ex. 32, Twp. Bd. Mins.; Def.'s Ex. 3 3 , Planning Comm'n Mins.) P la in tif f ran into conflicts with various Comstock Township departments and was c ritica l of the manner in which the Township conducted its business. (Def.'s Ex. 8, Fritz D e p . 77-84.) She began attending meetings of the Township Board, the Zoning Board of A p p e a ls , the Planning Commission, and the Parks Board, where she questioned various p o lic ie s and procedures. (Id. at 85-89.) Although the Township issued Plaintiff a special exception use permit to operate her in s u ra n c e office in a residential district, Plaintiff was still subject to Township zoning o rd in a n c e s restricting signage, parking, employees, alterations to the structure, and living in th e house. (Def.'s Ex. 6, Goodman Dep. 22; Def.'s Ex. 35, Zoning Ord.) In late 2005 and e a rly 2006, Township residents complained to the Township and to Farm Bureau that P la in ti f f ' s home office did not comply with zoning requirements and was destroying the re s id e n tia l character of the neighborhood. (Def.'s Ex. 45, Complaints to Comstock Twp.; D ef .'s Exs. 46-51, Complaints to Farm Bureau.) On July 28, 2006, Dick Keilen, Fritz's supervisor at Farm Bureau, called Defendant T im Hudson, Comstock Township Supervisor, to discuss the complaints. (Def.'s Ex. 5, 2

K e ile n Dep. 31-32; Def.'s Ex. 3, Husdson Aff. ¶ 10.) On November 15, 2006, and March 1 , 2007, Beth Goodman, Manager of Marketing Field Offices for Farm Bureau, called H u d s o n to inquire about the complaints and the Township requirements. (Def.'s Ex. 6, G o o d m a n Dep. 20-21; Hudson Aff. ¶ 11.) Goodman's investigation revealed that the T o w n sh ip requirements were in direct conflict with Farm Bureau's requirements for a satellite office. (Goodman Dep. 22-23.) During this same period of time, Farm Bureau was developing concerns regarding F ritz's employment with Farm Bureau. In particular, Keilen was concerned about her failure to apply herself at career school, her frustrations with Farm Bureau's requirements, her n e g a tiv e attitude, the disrespectful tone of her emails to her supervisor, her low productivity in property, casualty, and auto insurance sales, her statement that she was going to sue Farm B u re a u , and her criticism of Farm Bureau to agents of other companies. (Keilen Dep. 13-16, 5 2 -7 6 ; Def.'s Ex. 7, Luxmore Dep. 60-64; Def.'s Exs. 14-27, internal Farm Bureau emails a n d memos regarding Fritz.) O n March 22, 2007, Robert Luxmore, Farm Bureau's Regional Director of Agencies, ter m in a ted Fritz's relationship with Farm Bureau. p e rtin e n t part: The reasons for this termination relate to your working relationship with e m p l o ye e s of the Company and/or other Farm Bureau Insurance companies a n d to your controversial community relations with your neighbors and with th e local governmental unit. Their comments and complaints have led the C o m p a n y to conclude that your practices and methods are resulting in c o n te n tio u s and undesirable public controversy. The Company is concerned th a t this detracts from the public's image and perception of the Company, in 3 The termination letter provides in

p a rtic u la r, and the Farm Bureau organization, in general. As a result, the C o m p a n y has concluded that it is not in the best interests of the Company to c o n tin u e your Agent Employment Agreement. (D ef .'s Ex. 11, 03/22/2007 letter from Luxmore to Fritz.) Plaintiff filed this action alleging that Defendants Comstock Township and Tim H u d so n retaliated against her for her protected speech in violation of the First Amendment. P la in tif f also alleged state law claims of tortious interference with contract, tortious in t e rf e r e n c e with business relationship or expectancy, and defamation. Plaintiff's First A m e n d m e n t retaliation claim was dismissed for failure to state a claim, and her state law c laim s were dismissed without prejudice. (Dkt. No. 44.) On appeal, the Sixth Circuit re v e rs e d the dismissal of Plaintiff's First Amendment retaliation claim and remanded for fu rth er proceedings. Fritz v. Charter Twp. of Comstock, 592 F.3d 718 (6th Cir. 2010). P la in tif f 's state law claims, which she refiled in the Kalamazoo County Circuit Court, have a ll been dismissed. (Def.'s Exs. 1, 2, State Cir. Ct. Orders.) Defendants have filed a motion f o r summary judgment on Plaintiff's First Amendment retaliation claim, the sole remaining c la im before this Court. II. U n d e r Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is p ro p e r if there is no genuine issue as to any material fact and the moving party is entitled to ju d g m e n t as a matter of law. In evaluating a motion for summary judgment the Court must lo o k beyond the pleadings and assess the proof to determine whether there is a genuine need f o r trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). If 4

D e f e n d a n ts carry their burden of showing there is an absence of evidence to support a claim, P la in tif f must demonstrate by affidavits, depositions, answers to interrogatories, and a d m is s io n s on file, that there is a genuine issue of material fact for trial. Celotex Corp. v. C a tre tt, 477 U.S. 317, 324-25 (1986). In considering a motion for summary judgment, the Court must construe the evidence a n d draw all reasonable inferences in favor of the nonmoving party. Minges Creek, L.L.C. v . Royal Ins. Co. of Am., 442 F.3d 953, 955-56 (6th Cir. 2006) (citing Matsushita, 475 U.S. a t 587). Nevertheless, the mere existence of a scintilla of evidence in support of Plaintiff's p o s itio n is not sufficient to create a genuine issue of material fact. Anderson v. Liberty L o b b y , Inc., 477 U.S. 242, 252 (1986). The proper inquiry is whether the evidence is such th a t a reasonable jury could return a verdict for Plaintiff. Id.; see generally Street v. J.C. B r a d fo r d & Co., 886 F.2d 1472, 1476-80 (6th Cir. 1989). I I I. In order to survive summary judgment on her § 1983 First Amendment retaliation c la im , Plaintiff must present sufficient evidence to create a triable issue of fact as to each of th e following 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. Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 723 (6th Cir. 2010) (quoting Mezibov v. A lle n , 411 F.3d 712, 717 (6th Cir .2005)). "[I]f the plaintiff establishes the three elements,

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th e burden of production then shifts to the defendants to show that their actions would not h a v e been different absent the plaintiff's protected conduct." Thaddeus-X v. Blatter, 175 F .3 d 378, 400 (6th Cir. 1999) (en banc). 1. Protected Conduct T h e re is no question in this case that Plaintiff engaged in protected conduct by s p e a k in g out at public meetings and writing letters to the editor of the local newspaper. See F ritz , 592 F.3d at 723. However, not all of Plaintiff's activities that were of concern to D e f en d a n ts constituted protected speech. For example, engaging in violations of the

T o w n s h ip 's ordinances is not protected conduct. See Banks v. City of Whitehall, 344 F.3d 5 5 0 , 554-55 (6th Cir. 2003) ("There exists no "fundamental" right in our legal system to v iolate a municipality's codes and regulations with impunity . . . ."). 2 . Adverse Action A s noted by the Sixth Circuit, the primary disagreement in this case is "whether there w a s an adverse action by the Defendants against Plaintiff that would `deter a person of o rd in a ry firmness from continuing to engage' in the kinds of protected conduct in which P la in tif f was engaging." Fritz, 592 F.3d at 723 (quoting Mezibov, 411 F.3d at 717). B e c au s e Plaintiff is not a public employee, official, or prisoner, the level of injury she m u s t show would be "the lower limit of a cognizable injury for a First Amendment retaliation c la im ." Fritz, 592 F.3d at 724. Nevertheless, the adverse action must still be substantial e n o u g h to constitute a cognizable injury:

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[ A ] s a tort statute, § 1983 requires injury and "[i]t would trivialize the First A m e n d m e n t to hold that harassment for exercising the right of free speech was alw ays actionable no matter how unlikely to deter a person of ordinary f irm n e ss from that exercise . . . ." Thaddeus-X v. Blatter, 175 F.3d 378, 397 (6th Cir. 1999) (quoting Bart v. Telford, 677 F.2d 6 2 2 , 625 (7th Cir. 1982)). M o re o v e r, in analyzing the extent of the "adverse action" required for retaliation c la im s against public officials, courts must consider the public official's own First A m e n d m e n t rights, and right of reply. See Mezibov, 411 F.3d at 722 (noting that in analyzing th e extent of the "adverse action" alleged against a prosecutor, the court must be "careful to take into account only those comments made by [the prosecutor] that could reasonably be co n stru ed as defamatory, lest we trample on the First Amendment rights that [the prosecutor] re tain s as a government official"); see also McBride v. Village of Michiana, 100 F.3d 457, 4 6 2 (6th Cir. 1996) (cautioning that the proper exercise by government officials of their own f re e speech rights cannot serve as the basis for imposing liability for First Amendment re ta lia tio n ). It would be inconsistent with core First Amendment principles and basic n o tio n s of fairness not to allow [a government official] to respond to [a lleg atio n s of unethical conduct] to the extent his out-of-court comments were n o t defamatory, even if that response was (quite naturally) prompted by co n stitu tio n ally protected speech by [the plaintiff]. M e zib o v , 411 F.3d at 722.

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P la in tif f has clarified that the adverse action in this case is not the termination of her e m p lo ym e n t by Farm Bureau, or the denial of her zoning and signage variances.2 (Dkt. No. 6 9 , Pl.'s Resp. 2, 7, 9-10, 12, 18.) Rather, the adverse action Plaintiff relies on is "the c o m m u n ic a tio n and threats by Mr. Hudson to Farm Bureau." (Id. at 18.) Plaintiff contends th a t: M r. Hudson took adverse action against Ms. Fritz by attempting to threaten M s. Fritz's business relationship with Farm Bureau, by making statements to F a rm Bureau designated to communicate to Farm Bureau both that it would be i n its interest in terms of its dealing with Comstock to rein in Ms. Fritz's ex erc ise of her First Amendment rights and that it would be better for Farm B u re a u to cancel its contract with Ms. Fritz. (Pl.'s Resp. 9-10.) M r. Hudson participated in four telephone conversations with two Farm Bureau e m p lo ye e s. All four calls were initiated by the Farm Bureau employees. (Hudson Aff. ¶¶ 10, 1 1 .) On July 28, 2006, Hudson spoke with Dick Keilen, Plaintiff's supervisor at Farm B u rea u . Plaintiff attributes the following statements to Hudson, which she contends were f a ls e , misleading, or both: 1 . Fritz was not making friends, 2. Fritz did not live in her Comstock home, 3. Fritz said things in Planning Commission meetings that she should not say,

This is so despite the Sixth Circuit's observation that "Plaintiff alleges essentially two f o rm s of adverse action in her complaint: 1) the three conversations between Defendant H u d s o n and her employer; and 2) the denial of her zoning and signage variances." Fritz, 592 F .3 d at 725. 8

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4 . there was a petition in Fritz's neighborhood against her, 5 . Fritz was very antagonistic against Comstock, 6 . Fritz wrote a nasty letter to the editor of the Kalamazoo Gazette bashing Comstock, 7. if Fritz would tone down her speech and remove her sign, her problems might go away, and 8. Fritz was in violation of an ordinance prohibiting solicitation of business clients. (P l.'s Resp. 3.) On August 8, 2006, Keilen called Hudson to advise him that Fritz no longer h a d an employee working in her office. (Keilen Dep. 45-46.) O n November 15, 2006, Hudson spoke with Beth Goodman, Manager of Marketing F ie ld Offices for Farm Bureau. Plaintiff attributes the following statements to Hudson: 1 . Fritz pushes the envelope as far as she can, 2 . Fritz's neighborhood was not happy, 3 . Fritz's neighbor Scott Boucher can be pretty scary, 4 . Fritz can be pretty scary herself, 5 . the neighborhood was up in arms, and 6 . Farm Bureau needed to be concerned about its reputation as a result of the publicity and Fritz's conduct. (P l.'s Resp. 4.) On March 1, 2007, Hudson spoke with Goodman a second time. Plaintiff attributes th e following statements to Hudson during that telephone call: 1. Fritz had the Township in an uproar, 9

2 . he was about to lose his Board over it, 3 . others in the county could confirm that the Township was in an uproar as a result of Fritz's conduct, 4. Fritz wanted to know about every zoning request, 5 . Fritz wanted to be present at all Comstock meetings, 6 . He was sick of Fritz and her video camera, 7 . Fritz cannot be selling insurance because of the extent of her other a c t i v i ti e s , 8 . people refuse to talk to Fritz, 9 . Fritz's speech and conduct was damaging Farm Bureau's business and b u s in e s s prospects. (P l.'s Resp. 4-5.) F o r the most part, the comments Hudson allegedly made are simply expressions of o p in io n .3 As the Sixth Circuit recognized, to the extent Hudson expressed his opinion of P la in tif f 's speech and his opinion of its effect on Plaintiff's reputation in the Township, " [ t]h a t kind of speech is probably most akin to protected speech under the First Amendment, f a llin g under Defendant Hudson's right to respond to Plaintiff's criticisms that were made in the public sphere." Fritz, 592 F.3d at 727 (citing Samad v. Jenkins, 845 F.2d 660, 663 (6th

The statements are culled from notes taken by Keilen and Goodman during their te le p h o n e conversations. Keilen and Goodman had difficulty recalling whether the notes re f le c te d direct quotes from Hudson, a summary of what Hudson said, what they heard from o th e rs , or what they themselves were thinking during the conversations. (Goodman Dep. 24, 2 6 , 27, 44, 45, 59-60, 62, 64, 78; Keilen Dep. 35-38, 115-16.) Nevertheless, for purposes of th is opinion, the Court will assume that all of the notes reflect Hudson's statements. 10

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C ir. 1988)). Accordingly, to the extent Hudson was simply expressing his opinion, or was e x e rc isin g his right of reply, his speech fell within his constitutionally protected right to re s p o n d . Fritz, 592 F.3d at 728. To the extent Plaintiff contends that Hudson made factually false statements, the Court b e a rs in mind that "[d]efamatory statements motivated in part by a person's exercise of their F irst Amendment rights can be, but are not always, legally sufficient standing alone for a c la im of adverse action under the framework of this Circuit." Fritz, 592 F.3d at 726. "The k in d s of statements ­ both defamatory and not ­ that have been interpreted as adverse actions f o r the purposes of a retaliation claim are of a fundamentally different character than P la in tif f 's allegations that Defendant Hudson falsely stated that she was violating ordinances a n d that there was a petition against her in the neighborhood." Fritz, 592 F.3d at 727. Defendant Hudson's allegedly false statements, taken on their own, were not of such a c h a ra c ter that they amounted to an adverse action "because they were not highly e m b a r ra ss in g nor did they impugn Plaintiff's character." Fritz, 592 F.3d at 727. Plaintiff contends that even if Hudson's statements viewed individually do not c o n stitu te adverse action, taken as a whole, they raise a question of fact as to whether Hudson th re a ten e d Plaintiff's economic livelihood. The Sixth Circuit indicated that: I f Defendant Hudson in fact made statements that were designed to c o m m u n ic a te to Farm Bureau that it would be in the business' interest in terms o f its dealings in Comstock to reign in Plaintiff's exercise of her First A m e n d m e n t rights, or that it would be better for Farm Bureau to cancel its c o n tra c t with Plaintiff, that would be an adverse action sufficient to support a c la im of retaliation.

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Id . at 725. The Sixth Circuit reasoned that "[a] person of ordinary firmness would be d e te rre d from engaging in protected conduct, if as a result, a public official encouraged her e m p lo ye r to terminate the person's contract or to have her change her behavior." Id. at 726. T h e fact that the public official did not have the power to actually terminate th e employment makes this case close, but since Defendant Hudson and the o th e r Comstock Defendants did have the power to substantially affect Farm B u re a u 's ability to do business in Comstock through their role in enacting tow n sh ip ordinances and making zoning decisions, the alleged threats are more ta n g ib le . Id . at 726 (citation omitted). "Negative comments made by Defendant Hudson, especially ab o u t the possible damage to Farm Bureau's business, are sufficient to rise to the level of `a th re a t to take action tangibly affecting employment status.'" Id. at 728 (quoting Samad, 845 F .2 d at 663). In an attempt to bring her case within the guidelines set forth in the Sixth Circuit's o p in io n , Plaintiff now baldly asserts that "Mr. Hudson's statements to Mr. Keilen were, c le a rly, intended to communicate to Farm Bureau that it would be in its interest in terms of its dealings in Comstock to reign in Ms. Fritz's exercise of her First Amendment Rights and ca n ce l its contract with Ms. Fritz. Mr. Keilen, certainly interpreted them this way." (Pl.'s R e sp . 12.) Plaintiff also asserts that "Mr. Hudson made similar coercive or threatening c o m m e n ts to Beth Goodman of Farm Bureau." (Id.) The record does not support Plaintiff's assertions that Hudson or anyone else on b e h a lf of the Township threatened or pressured Farm Bureau to discharge Plaintiff. Hudson d id not initiate any contacts with Farm Bureau. It was Farm Bureau employees who called

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H u d so n to discuss Plaintiff. Plaintiff has not identified any statements by Hudson that could re a so n a b ly be construed as a threat directed at Farm Bureau, nor has she identified any s ta te m e n ts from which such a threat could reasonably be inferred. Hudson denies making a n y threat to Farm Bureau, (Hudson Aff. ¶¶ 13-16), and Farm Bureau's employees uniformly te s t i f i e d that they did not perceive any threat. Keilen testified that Hudson never asked or e n c o u ra g e d him to discharge Fritz or to take any disciplinary action against Fritz. (Keilen D e p . 46.) He testified that Fritz would have been discharged even if he had never spoken w ith Hudson. (Keilen Dep. 79.) To the extent Hudson commented to Keilen that Fritz was n o t making friends, Keilen was already aware of this fact based on complaints he had r e c e iv e d from Fritz's neighbors. (Keilen Dep. 34, 112-13; Hudson Dep. 139.) Similarly, L u x m o re testified that Hudson never requested Farm Bureau to terminate or discipline Fritz, th a t he never felt any pressure by the Township to terminate or discipline Fritz, and that he "a b so lutely" did not feel that he was forced to terminate Fritz as a result of the Township's o rd in a n c es . (Luxmore Dep. 69.) Goodman did not suggest that she felt any pressure from the Township regarding Fritz. After Goodman's investigation led her to believe that Fritz's o ff ice could not simultaneously comply with both the Township's and Farm Bureau's re q u ire m e n ts , Goodman turned the matter over to Keilen and Luxmore and had no further in v o lv e m e n t in Fritz's employment. (Goodman Dep. 35-36, 47.) To the extent Hudson made c o m m e n ts to Goodman that Farm Bureau needed to be concerned about negative publicity, su c h comments did not present anything new to Goodman, because it was precisely G o o d m a n 's own concerns about the complaints and Farm Bureau's reputation that prompted 13

G o o d m a n to contact the Township about Fritz's home office. (Id. at 28, 43-45.) It is also significant that Hudson did not have authority to direct that any Township a c tio n be taken against Farm Bureau. Since 1996, Hudson has not served as a member of any T o w n s h ip administrative body with any decision-making authority, such as the Planning C o m m is s io n , the Zoning Board of Appeals, or the Construction Board of Appeals. (Hudson A f f . ¶ 5.) Hudson has no power or authority, in his capacity as Township Supervisor or o th e rw is e , to enact Township ordinances or to make Township zoning decisions, nor does h e have any authority or power to take any Township actions against Farm Bureau. (Id. at ¶¶ 7, 8.) Plaintiff's bald assertion that the Township communicated to Farm Bureau that it w o u ld be adversely affected in its dealings with the Township unless it controlled or d is c h a rg e d Fritz is simply not supported by the evidence. There is no evidence that Hudson e v e r suggested or implied that the Township would make it difficult for Farm Bureau if it did n o t curb Plaintiff's speech. Hudson's statements cannot be viewed as "a threat to take action ta n g ib ly affecting employment status" unless they were designed to pressure or threaten the e n tity that could take such action. See Fritz, 592 F.3d at 728 (quoting Samad, 845 F.2d at 6 6 3 ). The lack of evidence that Hudson had any authority over Plaintiff's employment, that h e had any authority over any Township body that could affect Farm Bureau, or that he e x e rte d even the slightest pressure or threat against Farm Bureau, is fatal to Plaintiff's claim. B ase d upon the record as a whole, viewed in the light most favorable to Plaintiff, the Court c o n c lu d e s that the evidence is not sufficient to create a triable issue of fact as to the adverse 14

a c tio n element of Plaintiff's retaliation claim. Accordingly, Defendants are entitled to s u m m a ry judgment on Plaintiff's First Amendment retaliation claim. IV . P lain tiff contends that the Township of Comstock is liable to her for Hudson's re ta lia to ry conduct. Plaintiff recognizes that municipalities do not have respondeat superior lia b ility, and that she must show that there was a municipal policy, custom or practice that c a u se d the deprivation of her constitutional rights. (Pl.'s Resp. 19 (citing Monell v. New Y o r k Dep't of Soc. Servs., 436 U.S. 658 (1978).) Plaintiff contends that Comstock Township is liable for Hudson's unconstitutional conduct because he was the final decisionmaker for th e Township. See City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) ("[O]nly those m u n ic ip a l officials who have `final policymaking authority' may by their actions subject the g o v e rn m e n t to § 1983 liability." ) T h e parties dispute whether Hudson had final decisionmaking authority for Comstock T o w n s h ip . The Court need not resolve this issue, however, because Plaintiff has not shown th a t Hudson engaged in unconstitutional retaliation. Because Hudson did not engage in u n c o n s titu tio n a l conduct, no liability can attach to the Township based upon his actions. V. D e f e n d a n ts have argued that Defendant Hudson is entitled to qualified immunity. A g o v e rn m e n t official is entitled to qualified immunity on summary judgment "`unless the facts a ll e g e d and evidence produced, when viewed in the light most favorable to the plaintiff, w o u ld permit a reasonable juror to find that: (1) the defendant violated a constitutional right; 15

and (2) the right was clearly established.'" Jefferson v. Lewis, 594 F.3d 454, 459 (6th Cir. 2 0 1 0 ) (quoting Morrison v. Bd. of Trs. of Green Twp., 583 F.3d 394, 400 (6th Cir. 2009)). If the facts do not show that the defendant's conduct violated a constitutional right, the a n a lys is need not proceed any further because the defendant does not need the protection of q u a lif ie d immunity. Id. at 460. Because Plaintiff has not established a constitutional v io l a ti o n , the Court need not consider Defendants' alternative argument that Defendant H u d s o n is entitled to qualified immunity. VI. F o r the reasons stated in this opinion, Defendants' motion for summary judgment will b e granted, and judgment will be entered in their favor. A n order and judgment consistent with this opinion will be entered.

Dated: July 15, 2010

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