Hilton et al v. Mish et al

Filing 18

OPINION ; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, kcb)

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

ELISE HILTON and ED HILTON,
as individuals and as next friends
for “EH,” a mentally disabled adult,
Plaintiffs,
Case No. 1:16-CV-702
v.
HON. GORDON J. QUIST
CATHERINE MISH and
THE CITY OF GRAND RAPIDS,
Defendants.
/
OPINION
Plaintiffs, Elise Hilton and Ed Hilton, individually, and as next friends of “EH,” a mentally
disabled adult, filed a complaint against Defendants, Catherine Mish and the City of Grand Rapids,
alleging claims under 42 U.S.C. § 1983 for retaliation based on the Hiltons’ and EH’s exercise of
their First Amendment rights to redress of grievances, freedom of speech, and association, and a
state-law claim for intentional infliction of emotional distress. All of the Hiltons’ claims arise out
of an email that Mish—the former City Attorney for the City of Grand Rapids—sent from her work
email at the City to an individual concerning the Hiltons and EH’s involvement in an incident that
formed the basis of a separate, previous lawsuit filed in this district against the City and parties.
The City and Mish have moved to dismiss the Hiltons’ claims for failure to state a claim.
The Hiltons filed a response, and the Court heard oral argument on December 1, 2016.
For the reasons set forth below, the Court will grant Defendants’ motions and dismiss the
complaint with prejudice.

I. BACKGROUND
A.

The Parties
The Hiltons are husband and wife, and EH is their developmentally-disabled adult daughter.

The Hiltons are EH’s guardians. At the time of the incidents set forth in the complaint, EH was a
minor. (ECF No. 1 at Page ID.2.) Also during the relevant period, Elise Hilton was employed by
the Acton Institute, a political think tank and advocacy group located in the City. Among other
things, the Acton Institute presents seminars that concern religion and economics and related topics.
(Id. at PageID.5.) In 2014, the Acton Institute applied to the City for real and personal property tax
exemptions. Although the City initially denied the request, the parties eventually entered into a
consent judgment. (Id.)
The City is a Michigan municipal corporation and, during the relevant period of time, Mish
was the City Attorney. Mish’s duties as City Attorney included:
•
•
•
•
•
•

Acting as the legal advisor for the City and its various bodies;
Litigating cases for the City and its bodies;
Reviewing all contracts, bonds and other instruments for the City and its bodies;
Issuing legal opinions when requested to do so by any of the City’s bodies and
officials;
Maintaining copies of all franchises granted the City and all contracts and agreements
entered into by the City; and
Investigating citizen complaints concerning, among other things, misapplication of
the City’s funds.

(ECF No. 9-3 at Page ID.87–88 (City Charter).)
B.

The Prior Lawsuit
On January 16, 2012, EH was a minor and a student at Hope Academy in Grand Rapids.

That day, EH was disruptive at school and was told to leave school. After EH left the school, a
stranger induced EH to enter his house. Over the next several days, EH was repeatedly raped by the
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stranger and other men. At some point the abductors took EH’s clothes. EH eventually escaped in
a bed sheet and was later found in an abandoned building wrapped in the sheet. EH was then taken
to the YWCA, and later to a hospital. (Id. at PageID.4.) Several days later, a detective with the
Grand Rapids Police Department (GRPD) interviewed EH and concluded that her story did not make
sense. The detective thought that EH would not make a good witness. The GRPD declined to
investigate further, and the prosecutor declined to file charges against anyone. Although the GRPD
knew the name of one of the abductors and his address, the GRPD did not interview him for ten
months. (Id.)
On July 8, 2013, the Hiltons, individually and on behalf of EH, filed a complaint in the
Western District of Michigan against the GRPD and others.

The Hiltons alleged a gross

negligence/failure to train claim against the GRPD. The case, captioned Elise Hilton et al. v. Grand
Rapids Police Department, et al., No. 1:13-CV-727, was assigned to Judge Paul Maloney. The
Hiltons subsequently filed a second amended complaint against the City, two GRPD employees, and
others, in which they alleged various constitutional violations against the City and the GRPD
employees. On March 24, 2016, Judge Maloney granted the City’s and the GRPD employees’
motion to dismiss.
C.

Mish’s Email
On March 5, 2015, Donald Zerial, a Grand Rapids lawyer who supported the Acton Institute

in its tax dispute with the City, sent an email to Julie Hoogland, the Editor of the Grand Rapids
Press, stating:
I think it would be a worth-while investment for the Grand Rapids Press and Mlive
to make on behalf of the West Michigan community to have a reporter attending
these meetings and do a Press review for all of your faithful readers.
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(ECF No. 10-7 at PageID.315.) Zerial attached an advertisement for an upcoming March 25, 2015
lecture at the Acton Institute. (Id. at Page ID316–17.) The advertisement also promoted other
upcoming Acton Institute events, including an April 29 event, “The Scarlet Cord - The Evils of Sex
Trafficking with Pam Alderman and Elise Hilton.” (Id. at PageID.317–18.) Mish was apparently
copied on the email at her City email address. About an hour later, Mish responded to Zerial:
Perhaps you should ask the Acton Institute why they think they should be exempt
from paying real property taxes? And why are they suing the City of Grand Rapids
to demand their valuable government handout of that real property tax exemption?
For an institute that proclaims the below political message, it seems to me that they
are entirely hypocritical in throwing an absolute hissy fit because they didn’t get the
government handout that they believe they are “entitled” to.
(ECF No. 11-1 at PageID.449.) A few hours later, Mish sent Zerial another email:
I find this particularly ironic. . . .if you scroll down on the attachment you sent me,
and get to upcoming events, you see this entry:
April 29–Acton Art Series–The Scarlet Cord - The Evils of Sex Trafficking with
Pam Alderman and Elise Hilton
Elise Hilton is a staff member of Acton Institute here in GR. Her daughter, at the age
of 15-16 or thereabouts, ran away from home (ran away from her “alternative” high
school in downtown GR). She wandered the streets of downtown Grand Rapids,
acting as a prostitute in exchange for heroin, cocaine, alcohol and so forth. Her
father talked to her on her cell phone and asked where she was / asked her to come
home. She refused to come home and refused to tell her father where she was. The
police finally found her after many days of her escapades in trading sex for drugs.
And the result? Ms Elise Hilton the Acton hypocrite dares to sue the City of Grand
Rapids blaming the GRPD for the fact that her daughter ran away from home to
become a crack and heroin whore. Currently pending litigation. Case No. 1:13-CV00727, assigned to the Hon. Paul Maloney, U.S. District Court for the Western
District of Michigan. Apparently, Ms. Hilton the Acton hypocrite believes that the
government is the cause of her family’s woes. Therefore, the government owes them
a pile of money! It must be the police department’s fault, and she and her husband
Ed believe they are owed money for this!

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The young woman did not run away from home to become a crack and heroin whore
because of anything done by the City of Grand Rapids or the GRPD. We did not
raise her and did not influence her life choices in this regard. The hypocrisy of the
Acton Institute and its employees is simply amazing. Beware that you are dealing
with hypocrites, sir.
(Id. at PageID.450.)
The Hiltons allege that, in sending this email, Mish was acting in her capacity as City
Attorney. The Hiltons further allege that, at the time Mish sent the email, Mish had access to the
investigation file regarding EH’s abduction and, therefore, had reason to know that her statements
to Zerial were false. (ECF no. 1 at PageID.7.) The Hiltons subsequently obtained Mish’s email
through a third party’s Freedom of Information Act request. (Id. at PageID.9–10.)
II. MOTION STANDARD
Pursuant to Federal Rule of Civil Procedure 8(a), a complaint must provide “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Detailed factual allegations are
not required, but “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964–65 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 103 (1957)). The court must accept all of
the plaintiff’s factual allegations as true and construe the complaint in the light most favorable to the
plaintiff. Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009). The court must determine
whether the complaint contains “enough facts to state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570, 127 S. Ct. at 1974. “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949
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(2009). Although the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it
asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly,
550 U.S. at 556, 127 S. Ct. at 1965). “[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—that the pleader is entitled to relief.” Id. at 1950 (quoting Fed. R. Civ. P. 8(a)(2)).
III. DISCUSSION
In Counts I and II of their complaint, the Hiltons allege that Mish violated the First
Amendment when she retaliated against them and EH by sending the email to Zerial. The Hiltons
allege that Mish retaliated against them based on their filing of the 2013 lawsuit, Elise Hilton’s
association with the Acton Institute, and Elise Hilton’s speech on the issue of sex trafficking. In
Count III, the Hiltons allege that Mish committed intentional infliction of emotional distress when
she sent her email to Zerial.
A.

Retaliation Claims
In this Court’s judgment, the Hiltons’ and EH’s § 1983 claims fail on two grounds: Mish

was not acting in her capacity as the City Attorney when she wrote the email, and she is entitled to
qualified immunity.
1.

Mish Did Not Act Under Color of State Law

In order to state a valid claim under § 1983, a plaintiff must allege that: (1) a deprivation of
a right secured by the federal Constitution or laws; and (2) the defendant acted under color of state
law. Flagg Bros. v. Brooks, 436 U.S. 149, 155–56, 98 S. Ct. 1729, 1733 (1978). In general, a public
official acts under color of state law when she has “exercised power ‘possessed by virtue of state law
and made possible only because the wrongdoer is clothed with the authority of state law.’” West v.
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Atkins, 487 U.S. 42, 49, 108 S. Ct. 2250, 2255 (1988) (quoting United States v. Classic, 313 U.S.
299, 326, 61 S. Ct. 1031, 1043 (1941)). “Section 1983 is generally not implicated unless a state
actor’s conduct occurs in the course of performing an actual or apparent duty of his office, or unless
the conduct is such that the actor could not have behaved as he did without the authority of his
office.” Waters v. City of Morristown, 242 F.3d 353, 359 (6th Cir. 2001) (citing West, 487 U.S. at
49–50, 108 S. Ct. at 2255). The pertinent inquiry, then, is “whether the actor intends to act in an
official capacity or to exercise official responsibilities pursuant to state law.” Id. In the context of
police officers, the Sixth Circuit has noted that “‘[t]he fact that a police officer is on or off duty, or
in or out of uniform is not controlling. It is the nature of the act performed, not the clothing of the
actor or even the status on duty, or off duty, which determines whether the officer has acted under
color of law.’” Mooneyhan v. Hawkins, No. 96-6135, 1997 WL 685423, at *3 (6th Cir. Oct. 29,
1997) (quoting Stengel v. Belcher, 522 F.2d 438, 441 (6th Cir. 1975)); see also id. at *4 (listing
actions such as “flashing a badge, identifying oneself as a police officer, placing an individual under
arrest, or intervening in a dispute between third parties pursuant to a duty imposed by police
departmental regulations” as actions indicative of official authority). Thus, the fact that an actor is
a state official does not necessarily mean that she acted under color of law. A government actor’s
“private conduct, outside the course or scope of h[er] duties and unaided by any indicia of actual or
ostensible state authority, is not conduct occurring under color of state law.” Waters, 242 F.3d at
359.
It is apparent from the email chain that Mish was not acting pursuant to her duties as City
Attorney in responding to Zerial’s email. Zerial sent the email to the editor of the Grand Rapids
Press and apparently copied or blind copied Mish. Zerial’s email was directed at the newspaper,
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suggesting that it report on the advertised series of lectures at the Acton Institute. Nothing in Zerial’s
email mentions the Acton Institute’s tax exemption dispute with the City. Moreover, the text of
Mish’s email shows that she was offering her opinion as a private individual—a status she retains
notwithstanding that she is also the City Attorney. Mish did not indicate in either her first or second
response to Zerial that she was acting pursuant to her official duties as City Attorney or that she was
speaking on behalf of the City. For example, Mish did not say that she was acting as City Attorney
and did not sign her name in an official capacity as City Attorney. The fact that Mish used her work
email to respond to Zerial’s email, while arguably done in bad judgment, does not transform Mish’s
private conduct into official City business. See Laxalt v. McClatchy, 622 F. Supp. 737, 747 (D. Nev.
1985) (concluding that a senator’s use of Senate stationery to demand a retraction in a news story
did not transform the senator’s action into action taken under color of federal law for purposes of a
Bivens claim).
The Hiltons argue that Mish was acting pursuant to her official duties because she was
responding to Zerial’s citizen complaint that the City had abused its powers in denying the Acton
Institute’s request for tax exempt status. This argument is meritless because, as noted above,
Zerial’s email said nothing about the tax dispute. Since his email was not directed to Mish, Zerial
was not complaining to Mish about anything at all. The Hiltons also argue that Mish was acting
under color of state law because she had access to EH’s investigation file, and, therefore, her
statements to Zerial about the incident involving EH carried special weight that would not be
accorded statements of a private citizen. This argument fails because, at bottom, it is really that
Mish was acting under color of state law simply because she was the City Attorney. Such is not the
law. As the Sixth Circuit recognizes, it is the nature of the action, not the status of the actor, that
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determines whether an individual was acting under color of state law. See Burris v. Thorpe, 166 F.
App’x 799, 802–03 (6th Cir. 2006) (“Simply put, when Thorpe was engaging in sexual intercourse
with Burris, even when he was on duty and in uniform, he was not acting under color of state law.”).
Here, Mish did something that any private citizen could have done without the aid of official
authority—express her views about the Acton Institute, the Hiltons, and their prior lawsuit.
Accordingly, Mish was not acting under color of state law when she responded to Zerial’s
email.
2.

Mish is Entitled to Qualified Immunity

Mish also argues that she is entitled to qualified immunity on the retaliation claims. “Under
the doctrine of qualified immunity, ‘government officials performing discretionary functions
generally are shielded from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.’”
Phillips v. Roane Cnty., 534 F.3d 531, 538 (6th Cir. 2008) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818, 102 S. Ct. 2727, 2738 (1982)). Once a defendant raises the qualified immunity defense,
the burden shifts to the plaintiff to demonstrate that the defendant official violated a right so clearly
established “that every ‘reasonable official would have understood that what he [was] doing
violate[d] that right.’” Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S. Ct. 2074, 2083 (2011) (quoting
Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039 (1987)). The ultimate question
is whether the governmental official had “fair warning” that his conduct violated the plaintiff’s
constitutional right. Hope v. Pelzer, 536 U.S. 730, 740, 122 S. Ct. 2508, 2515 (2002). There are two
general steps in the qualified immunity analysis. First, “[t]he court must determine whether the ‘the
facts alleged show the officer’s conduct violated a constitutional right.’” Cass v. City of Dayton, 770
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F.3d 368, 374 (6th Cir. 2014) (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156
(2001)). If the plaintiff’s evidence demonstrates a constitutional injury, the court must then ask
“whether that right was ‘clearly established.’” Id. (quoting Saucier). Under Pearson v. Callahan,
555 U.S. 223, 129 S. Ct. 808 (2009), a court may address either question first. See McKenna v.
Bowling Green State Univ., 568 F. App’x 450, 459–60 (6th Cir. 2014).
In order to allege a legally sufficient retaliation claim, a plaintiff must allege: (1) that she
engaged in constitutionally-protected conduct; (2) the defendant took an adverse action that would
likely deter a person of ordinary firmness from continuing to engage in the protected conduct; and
(3) the adverse action was motivated at least in part by the plaintiff’s protected conduct. Bloch v.
Ribar, 156 F.3d 673, 678 (6th Cir. 1998). The Sixth Circuit has observed that “since § 1983 is a tort
statute, we must be careful to ensure that real injury is involved, lest we ‘trivialize the First
Amendment’ by sanctioning a retaliation claim even if it is unlikely that the exercise of First
Amendment rights was actually deterred.” Mezibov v. Allen, 411 F.3d 712, 721 (6th Cir. 2005)
(quoting Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). This is simply a
recognition of the broader rule that “de minimis injuries do not support a constitutional violation,
even if intentionally inflicted.” United States v. Budd, 496 F.3d 517, 530 (6th Cir. 2007).
Based on its review of Sixth Circuit cases, the Court notes that whether a defendant’s
statements, comments, or disclosure of information amounts to an adverse action depends on the
particular circumstances of the case. However, certain general rules or principles can be gleaned
from the cases. First, verbal abuse, foul language, and insensitive comments made to or about a
plaintiff generally do not constitute adverse action. See Taylor v. City of Falmouth, 187 F. App’x
596, 600-01 (6th Cir. 2006). Second, general allegations of harm to one’s character and reputation
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resulting from “being held up to ‘ridicule, contempt, shame, and disgrace,’” do not rise to the level
of injury required for a constitutional violation. Mattox v. City of Forest Park, 183 F.3d 515, 523
(6th Cir. 1999). Finally, statements containing false or embarrassing information can constitute
adverse action if they are both publicly disclosed and the focus of the communication. See id. at 521
(citing Bloch v. Ribar, 156 F.3d 673 (6th Cir. 1998), and Barrett v. Harrington, 130 F.3d 246 (6th
Cir. 1997)). While some of Mish’s statements in her email might be considered defamatory and,
thus, more than mere verbal abuse and insults that do not amount to constitutional injury, Mish’s
email, and the circumstances in which she sent it, do not amount to adverse action because
comments made to a third party in a private email exchange would not deter an average person of
ordinary firmness—here a private citizen —from continuing to engage in litigation against the City,
to be associated with a political advocacy organization, or to speak on the issue of sex trafficking.1
Moreover, the Hiltons and EH allege only generalized harm that does not surmount the de minimis
threshold required for constitutional injury.
The Hiltons rely primarily on three cases, Bloch, Barrett, and Fritz v. Charter Township of
Comstock, 592 F.3d 718 (6th Cir. 2010), to support their argument that Mish’s email constituted
adverse action. In Bloch, the plaintiff alleged that in response to newspaper articles reporting the
plaintiff’s statements that were critical of the sheriff’s lack of progress in investigating her alleged
rape, the sheriff held a press conference, during which he released highly embarrassing details of the
rape that the plaintiff had not even disclosed to her husband. 156 F.3d at 676. The court held that
the plaintiff adequately alleged an adverse action because, while the sheriff had the right to respond

1

Many of Mish’s statements are opinions about the Hiltons and the Acton Institute, which are themselves
protected speech under the First Amendment.

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to the plaintiff’s criticisms, such right did not extend to the release of irrelevant, humiliating, and
confidential information. Id. at 681. In Barrett, the plaintiff alleged that a state-court judge
retaliated against him for investigating illegal conduct by the judge by falsely accusing the plaintiff,
in statements to the media, of stalking her. 130 F.3d at 262. The court addressed whether the
plaintiff engaged in protected conduct and whether such conduct was a “substantial” or “motivating”
factor in the judge’s accusations against the plaintiff, but the court did not address whether the
judge’s statements to the media constituted adverse action. Id. at 262–63. Nonetheless, the court
concluded that the plaintiff presented sufficient evidence to survive summary judgment. Id. at 263.
Finally, in Fritz, the plaintiff alleged that the defendant retaliated against her by making certain
statements to the plaintiff’s employer that were intended to threaten the plaintiff’s economic
livelihood and ultimately led the employer to terminate its contract with the plaintiff. 592 F.3d at
728. The court observed that “[s]ince few aspects of one’s life are more important than gainful
employment, it is likely that a person of ordinary firmness would be deterred by this conduct.” Id.
The circumstances of the instant case are materially distinguishable from those in Bloch,
Barrett, and Fritz. In contrast to the defendant in Bloch, who made statements about the plaintiff
in a press conference, and the defendant in Barrett, who made statements about the plaintiff to
newspaper and television reporters, Mish made statements about the Hiltons and EH in an email to
a single private individual, who apparently never disclosed the email to the Hiltons or anyone else.
And, in contrast to Fritz, the Hiltons and EH allege no facts suggesting that Mish’s statements to
Zerial were designed to inflict any type of concrete damage on the Hiltons or EH, such as loss of
employment. In fact, the complaint is devoid of any fact suggesting that Zerial had any type of legal
relationship with the Hiltons or EH that Mish intended to affect.
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The facts in this case are more akin to those in Wurzelbacher v. Jones-Kelley, 675 F.3d 580
(6th Cir. 2012), in which the Sixth Circuit held that the plaintiff failed to allege an adverse action.
The plaintiff in Wurzelbacher—a private citizen like the Hiltons and EH—alleged that the
defendants retaliated against him by conducting an improper search of state databases. In rejecting
the plaintiff’s retaliation claim, the court said:
[The plaintiff] asserts that defendants, without his knowledge, performed several
improper database searches under his name. However, the complaint contains no
information regarding what, if any, information was discovered. Moreover, if any
information was obtained, it was never publicly disclosed. [The plaintiff] did not
suffer a threat to his economic livelihood, was not defamed, did not endure a search
or seizure of property, and did not experience the public disclosure of intimate or
embarrassing information. In addition, [the plaintiff] was not threatened with a
continuing governmental investigation, and he does not allege that defendants’
actions in fact caused a ‘chill’ of his First Amendment rights. . . .
Id. at 584 (internal citations omitted). Moreover, the court said that the plaintiff’s allegation that “his
knowledge of the improper database searches caused him to suffer ‘emotional distress, harassment,
personal humiliation, and embarrassment,” were “too generalized to withstand judgment on the
pleadings.” Id.
Wurzelbacher is distinguishable from the instant case in that Wurzelbacher involved
computer database searches, whereas the Mish’s alleged adverse action is an email that made
arguably defamatory statements, at least about EH. As the court noted in Fritz, however, the issue
is not whether statements are defamatory but, instead, whether they are made under circumstances
that amount to an adverse action for purposes of § 1983. Fritz, 592 F.3d at 727. Wurzelbacher is
pertinent here because Mish’s statement to Zerial was never publicly disclosed. In fact, the Hiltons
learned of the email, after more than a year, by happenstance when a third party obtained it through
a FOIA request and sent it to the Hiltons. In addition, and perhaps more importantly, like the
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plaintiff in Wurzelbacher, the Hiltons allege only “anger, humiliation, mortification and outrage” as
a result of the email—“allegations [that] are too generalized to withstand” dismissal. Wurzelbacher,
675 F.3d at 584. Having concluded that the Hiltons and EH fail to allege a constitutional violation,
the Court need not address the second prong of the qualified immunity analysis. See Summerland
v. Cnty. of Livingston, 240 F. App’x 70, 78 (6th Cir. 2007).
3.

Municipal Liability

Citing Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S. Ct. 1292 (1986), the Hiltons
argue that because Mish had the ultimate authority to respond to citizen emails regarding the Acton
Institute tax dispute, the City is liable for Mish’s actions. Because the Hiltons and EH fail to allege
a constitutional violation, any claim for municipal liability is foreclosed. See Kinkus v. Vill. of
Yorkville, 289 F. App’x 86, 93 (6th Cir. 2008) (noting that “absent any constitutional violation, there
can be no municipal liability”).2
. B.

Intentional Infliction of Emotional Distress3
The elements of an intentional infliction of emotional distress claim are: (1) extreme and

outrageous conduct; (2) intent or recklessness; (3) causation; and (4) severe emotional distress. See
Hayley v. Allstate Ins. Co., 262 Mich. App. 571, 577, 686 N.W.2d 273, 276 (2004). “The conduct
complained of must be ‘so outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized

2

Even if the Court were to conclude that the Hiltons alleged a constitutional violation, and even if Mish had
policymaking authority, the municipal liability claim would fail because there is no reasonable argument that Mish
was engaged policymaking when she sent the email to Zerial. Policymaking entails a “deliberate choice” among
various alternatives to follow a particular course of action. Pembaur, 475 U.S. at 483, 106 S. Ct. at 1300. Nothing
in Mish’s email can reasonably be construed as a choice by the City to do anything.
3

Although the Court would normally dismiss the state-law claim, see 28 U.S.C. § 1367(c)(3), in light of the
obvious failings of the state-law claim, the Court exercises its discretion decide the claim.

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community.’” Id. at 577, 686 N.W.2d at 276-77 (quoting Graham v. Ford, 237 Mich. App. 670, 674,
604 N.W.2d 713, 716 (1999). A defendant may not be held liable for mere insults, indignities,
threats, annoyances, petty oppressions, or other trivialities. See Lewis v. LeGrow, 258 Mich. App.
175, 196, 670 N.W.2d 675, 689 (2003).
The Hilton’s and EH’s intentional infliction of emotional distress claim fails because their
allegations show that Mish did not act intentionally or recklessly to cause the Hiltons and EH
emotional distress. As noted, Mish sent her email to Zerial, not the Hiltons or EH. There is no
allegation suggesting that Mish had any reason to believe that her email would be seen by the Hiltons
or EH. In fact, the Hiltons discovered it almost a year later by happenstance.
IV. CONCLUSION
For the foregoing reasons, the Court will grant Defendants’ motions and dismiss the
complaint with prejudice.
A separate order will enter.

Dated: December 13, 2016

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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