Scott v. Schuster et al

Filing 87

MEMORANDUM AND ORDER regarding pending motions. 1. Defendant Tempelmeyer's motion (Filing 73 ) to alter or amend the court's prior order on summary judgment to grant him qualified immunity is denied;2. Defendant Tempelmeyer's motion (Filing 76 ) to file an amended answer to plead an additional affirmative defense of absolute and/or prosecutorial immunity is granted, and the proposed amended answer (Filing 76 -1), attached to Tempelmeyer's motion, is accepted and s hall be considered filed; 3. Defendant Tempelmeyer's supplemental motion (Filing 77 ) for summary judgment on Plaintiffs First Amendment claim against him on the basis of absolute and/or prosecutorial immunity is denied;4. Plaintiff� 39;s First Amendment retaliation claim against defendant Tempelmeyer in his individual capacity is the only remaining claim in this case; and 5. This matter is referred to Magistrate Judge Zwart for further progression. Ordered by Senior Judge Richard G. Kopf. (E-mailed to CRZ)(JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RAY SCOTT,
Plaintiff,
V.
DENNIS M. SCHUSTER, In his
Official and Individual Capacity,
CITY OF BEATRICE, Nebraska,
and TOBIAS J. TEMPELMEYER,
City Attorney,
Defendants.

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4:14CV3093

MEMORANDUM
AND ORDER

This is a 42 U.S.C. § 1983 action asserting claims under the First and Fourth
Amendments. (Filings 35, 43.) Plaintiff Ray Scott alleges that he exercised his First
Amendment right to free speech by protesting the City of Beatrice’s imposition of a
lodging tax on his business, which was renting living quarters to tenants in a twobuilding property called the “Villa Motel” in Beatrice, Nebraska. Plaintiff asserts that
the defendants retaliated against him for objecting to payment of the tax by
conducting a sham inspection—without Plaintiff’s permission or a warrant—of the
property in which Plaintiff held a leasehold interest, which led to retaliatory
condemnation of the property, effectively putting Plaintiff out of business.
On March 2, 2016, I granted in part and denied in part the defendants’ motion
for summary judgment, leaving Plaintiff’s First Amendment retaliation claim against
defendant Tobias J. Tempelmeyer in his individual capacity as the only remaining
claim. (Filing 71.) Tempelmeyer now moves to alter or amend the court’s prior order
on summary judgment (Filing 73) to grant him qualified immunity; to file an amended
answer (Filing 76) to plead an additional affirmative defense of absolute and/or

prosecutorial immunity; and for summary judgment on Plaintiff’s First Amendment
claim against him on the basis of absolute and/or prosecutorial immunity (Filing 77).
A. Motion to Alter or Amend
Pursuant to Fed. R. Civ. P. 59(e), defendant Tempelmeyer has filed a motion
to alter or amend the court’s prior order denying him qualified immunity as to
Plaintiff’s First Amendment retaliation claim. “A district court has broad discretion
in determining whether to grant or deny a motion to alter or amend [a] judgment
pursuant to Rule 59(e) . . . .” United States v. Metro. St. Louis Sewer Dist., 440 F.3d
930, 933 (8th Cir. 2006). Rule 59(e) motions serve the limited function of correcting
“‘manifest errors of law or fact or to present newly discovered evidence.’” Id. (quoting
Innovative Home Health Care v. P.T.-O.T. Assoc. of the Black Hills, 141 F.3d 1284,
1286 (8th Cir. 1998)). “Such motions cannot be used to introduce new evidence,
tender new legal theories, or raise arguments which could have been offered or raised
prior to entry of judgment.” Metro. St. Louis Sewer Dist., 440 F.3d at 933.
Because Tempelmeyer does not present newly discovered evidence, I need only
to determine whether my previous analysis regarding Tempelmeyer’s entitlement to
qualified immunity was manifestly erroneous. Tempelmeyer argues that I incorrectly
used a three-prong test under Peterson v. Kopp, 754 F.3d 594, 598 (8th Cir. 2014), to
analyze Plaintiff’s First Amendment claim when I should have used a four-part test.
Specifically, Tempelmeyer contends that instead of analyzing only whether (1)
Plaintiff “engaged in a protected activity, (2) the government official took adverse
action against [Plaintiff] that would chill a person of ordinary firmness from
continuing in the activity, and (3) the adverse action was motivated at least in part by
the exercise of the protected activity,” id. at 602, I should have also considered a
fourth prong—that is, lack of probable cause or arguable probable cause for the
government action. (Filing 75, Def.’s Br. Supp. Mot. Alter at CM/ECF pp. 6-11.)

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Tempelmeyer asserts that because “probable cause” supported the inspection and
condemnation of the Motel, he is entitled to qualified immunity.1
Peterson—one of the cases on which Tempelmeyer relies—expressly limits use
of the fourth “probable cause” prong to “retaliatory arrest cases.” Peterson, 754 F.3d
at 602 (“In retaliatory arrest cases, we have identified a fourth prong: lack of probable
cause or arguable probable cause.” (citing retaliatory arrest cases)). The case now
before me is not a retaliatory arrest case, nor is it a case involving the issuance of
citations for violations of the city’s municipal codes or a criminal prosecution.2
Further, the Eighth Circuit Court of Appeals has very recently applied the three-prong
test in a First Amendment retaliation case involving a governmental department’s
investigation and inquiries of a financial advisor who publicly engaged in protected
political speech. Bennie v. Munn, No. 14-3473, __ F.3d __, 2016 WL 2731577, at *4
(8th Cir. May 11, 2016) (citing three-prong test for analyzing First Amendment
retaliation claim; fourth “probable cause” prong not mentioned as part of test). Under
such circumstances, it was not a “manifest error of law” to apply the three-part test in
this case.

1

Tempelmeyer does not question my analysis of the first three prongs.

2

See Hartman v. Moore, 547 U.S. 250 (2006) (plaintiff asserting Bivens claim
that he was prosecuted for exercising his First Amendment free-speech rights must
plead and prove lack of probable cause for pressing underlying criminal charges in
order to sustain his First Amendment retaliatory-prosecution claim; noting differences
in constitutional tort action where “the claimed retaliation for protected conduct is a
criminal charge”); Williams v. City of Carl Junction, 480 F.3d 871, 875 (8th Cir.
2007) (finding that, because plaintiff failed to show that police officers lacked
probable cause to issue citations for violation of city codes, he could not establish a
necessary element of his retaliatory-prosecution claim; distinguishing retaliatoryprosecution claim from “ordinary retaliation case” with regard to required showing
of causation).
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Further, it should be noted that the Peterson court reversed the district court’s
grant of summary judgment based on qualified immunity on the plaintiff’s First
Amendment retaliatory use-of-force claim because “[a] reasonable jury could
conclude . . . that [the public transit officer] pepper sprayed [the plaintiff] in retaliation
for asking for his badge number, and [the plaintiff’s] First Amendment right was
clearly established at the time of the incident.” Peterson, 754 F.3d at 603 (stating that
whether transit officer pepper-sprayed plaintiff “even in part—because of his
protected speech” is “generally a jury question . . . [unless] the question is so free from
doubt as to justify taking it from the jury” and that plaintiff had presented “affirmative
evidence that [the officer] pepper[-]sprayed him in retaliation for criticizing him and
asking for his badge number” (internal quotation and citation omitted)).
Here, as in Peterson, a reasonable jury could conclude that Tempelmeyer
ordered the inspection and condemnation of the Motel because of Plaintiff’s dispute
with the City of Beatrice regarding the applicability of a certain tax on his business
property, and Plaintiff’s First Amendment right to so challenge the City was clearly
established at the time of the alleged government retaliation. Therefore, and as I
previously concluded, “defendant Tempelmeyer is not entitled to qualified immunity
on [plaintiff] Scott’s First Amendment claim.” (Filing 71 at CM/ECF p. 10.)
Tempelmeyer’s motion to alter or amend (Filing 73) shall be denied.
B. Motion to Amend Answer
In response to a footnote in the court’s previous summary-judgment order that
“[t]he defendants do not argue that Tempelmeyer is entitled to an immunity defense
other than qualified immunity, such as prosecutorial immunity,” (Filing 71 at
CM/ECF p. 6 n.3), Tempelmeyer moves to amend his answer to include the
affirmative defense of absolute and/or prosecutorial immunity. (Filing 76.)

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Unless a party seeks to amend a pleading “once as a matter of course,” which
is not the case here, Fed. R. Civ. P. 15(a)(2) allows a party to amend “only with the
opposing party’s written consent or the court’s leave,” and “[t]he court should freely
give leave when justice so requires.” This rule “encourages the court to look favorably
on requests to amend,” and “the grant or denial of leave to amend is a matter that is
within the discretion of the trial court.” 6 Charles Alan Wright, et al., Federal
Practice and Procedure § 1484 (3d ed. Westlaw 2016).
Because the question of whether Tempelmeyer is entitled to immunity, of
whatever type, has been at issue throughout this case, Plaintiff would not be unfairly
surprised or prejudiced by allowing Tempelmeyer to amend his answer to assert
absolute and/or prosecutorial immunity. Further, allowing the amendment will hasten
the resolution of this case by allowing the court to address an issue that should be
decided by the court before trial. Pearson v. Callahan, 555 U.S. 223, 232 (2009) (“we
repeatedly have stressed the importance of resolving immunity questions at the earliest
possible stage in litigation” (internal quotation and citation omitted)).
Defendant Tempelmeyer’s motion for leave to file an amended answer (Filing
76) shall be granted, and the proposed amended answer (Filing 76-1), attached to
Tempelmeyer’s motion, is accepted and shall be considered filed.
C. Supplemental Motion for Summary Judgment
Tempelmeyer has also filed a supplemental motion for summary judgment
(Filing 77) on the basis of “absolute and/or prosecutorial immunity” in response to the
court’s footnote that Tempelmeyer had not asserted prosecutorial immunity in his
prior motion for summary judgment based on qualified immunity. (Filing 71 at
CM/ECF p. 6 n.3.) Tempelmeyer argues that while he did not specifically mention
“prosecutorial immunity” in his prior motion for summary judgment, such argument
was “necessarily included within Tempelmeyer’s broader assertion of qualified
immunity.” (Filing 79, Def.’s Br. Supp. Supp. Mot. Summ. J. at CM/ECF p. 1.)
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Further, Tempelmeyer contends that assuming he directed the city inspector to inspect
and condemn the Motel, Tempelmeyer would be entitled to absolute prosecutorial
immunity. (Id. at CM/ECF p. 5.)
Prosecutors may be entitled to either absolute or qualified immunity
from civil liability under 42 U.S.C. § 1983 for actions undertaken
pursuant to their official duties. If the prosecutor is acting as advocate
for the state in a criminal prosecution, then the prosecutor is entitled to
absolute immunity. Absolute immunity covers prosecutorial functions
such as the initiation and pursuit of a criminal prosecution, the
presentation of the state’s case at trial, and other conduct that is
intimately associated with the judicial process. In contrast, a prosecutor
is entitled only to qualified immunity when [s]he pursues actions in an
investigatory or administrative capacity. In determining whether
particular actions of government officials fit within the absolute or
qualified immunity standard, the Supreme Court has adopted a functional
approach that looks to the nature of the function performed, not the
identity of the actor who performed it.
Brodnicki v. City of Omaha, 75 F.3d 1261, 1266 (8th Cir. 1996) (internal quotation
marks omitted) (citing Burns v. Reed, 500 U.S. 478 (1991); Buckley v. Fitzsimmons,
509 U.S. 259 (1993); Imbler v. Pachtman, 424 U.S. 409 (1976); Forrester v. White,
484 U.S. 219 (1987)).
The Supreme Court has held that a prosecutor does not have absolute immunity
when he or she gives legal advice to the police or performs “investigatory functions
that do not relate to . . . preparation for the initiation of a prosecution or for judicial
proceedings.” Buckley, 509 U.S. at 273 (citing Burns, 500 U.S. at 492-496 (“We do
not believe . . . that advising the police in the investigative phase of a criminal case is
so intimately associated with the judicial phase of the criminal process that it qualifies
for absolute immunity” (internal quotation marks and citation omitted)). If a
prosecutor is not acting as an “advocate for the state in a criminal prosecution” such
that absolute immunity would apply, the prosecutor may be entitled to qualified
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immunity “when he pursues actions in an investigatory or administrative capacity.”
Brodnicki, 75 F.3d at 1266 (internal quotation marks and citation omitted).
As stated in the court’s prior order on the defendants’ motions for summary
judgment, Tempelmeyer (1) directed the City of Beatrice Chief Building Inspector to
inspect Plaintiff’s property for safety issues after having an ongoing dispute with
Plaintiff about the payment of certain taxes on Plaintiff’s business property and after
seeing interior photographs of the property provided by a private citizen; (2) directed
the inspector to advise Plaintiff of the “life safety issues” found by the fire marshal at
the property, despite the fact that the inspector opined that the issues were not lifethreatening; and (3) directed the inspector to condemn the property, contrary to the
City’s previous practice of not condemning properties that did not contain lifethreatening conditions. Further, based on a conversation the inspector overheard
between Tempelmeyer and the mayor, the inspector believes Tempelmeyer directed
him to inspect and condemn Plaintiff’s property because of Plaintiff’s ongoing
resistance to paying a lodging tax on the property. (Filing 71 at CM/ECF pp. 1-6.)
Tempelmeyer’s actions cannot be characterized as initiating or pursuing a
criminal prosecution, presenting the city’s case at trial, or engaging in conduct that is
“intimately associated with the judicial process.” Brodnicki, 75 F.3d at 1266. Rather,
Tempelmeyer’s directives are more properly considered administrative or
investigatory acts, which only entitle Tempelmeyer to qualified immunity. Id. I
previously determined that Tempelmeyer is not entitled to qualified immunity (Filing
71), and I have declined to amend or alter that order pursuant to the discussion above.
Accordingly, Tempelmeyer’s supplemental motion for summary judgment (Filing 77)
shall be denied.
IT IS ORDERED:
1.
Defendant Tempelmeyer’s motion (Filing 73) to alter or amend the
court’s prior order on summary judgment to grant him qualified immunity is denied;
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2.
Defendant Tempelmeyer’s motion (Filing 76) to file an amended answer
to plead an additional affirmative defense of absolute and/or prosecutorial immunity
is granted, and the proposed amended answer (Filing 76-1), attached to
Tempelmeyer’s motion, is accepted and shall be considered filed;
3.
Defendant Tempelmeyer’s supplemental motion (Filing 77) for summary
judgment on Plaintiff’s First Amendment claim against him on the basis of absolute
and/or prosecutorial immunity is denied;
4.
Plaintiff’s First Amendment retaliation claim against defendant
Tempelmeyer in his individual capacity is the only remaining claim in this case; and
5.

This matter is referred to Magistrate Judge Zwart for further progression.

DATED this 19th day of May, 2016.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

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