Carrie Cox v. Anthony Ruckel

NOT RECOMMENDED FOR PUBLICATION

File Name: 25a0418n.06

Case No. 23-5698

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED

Sep 09, 2025

) KELLY L. STEPHENS, Clerk

CARRIE COX; GUY MEADE,

)

Plaintiffs-Appellants, )

) ON APPEAL FROM THE

v. ) UNITED STATES DISTRICT

) COURT FOR THE EASTERN

ANTHONY TODD RUCKEL, et al., ) DISTRICT OF KENTUCKY

Defendants-Appellees. )

) OPINION

)

Before: THAPAR, NALBANDIAN, and DAVIS, Circuit Judges.

NALBANDIAN, Circuit Judge. Carrie Cox and Guy Meade purchased and restored an

abandoned property next to the historic Cabin Creek Covered Bridge in Lewis County, Kentucky.

Unfortunately, they soon came into conflict with members of the local community over access to

the bridge. These conflicts escalated to the point of harassment. Cox told Todd Ruckel, then-

Judge Executive of Lewis County, that she intended to raise the bridge-access issues at a meeting

of the county fiscal court. Ruckel suggested that the meeting was not the appropriate forum, but

Cox persisted and spoke anyway. Cox claims that Ruckel and other defendants engaged in a

coordinated campaign of retaliation to punish her for her speech and perceived obstinance

regarding the bridge. So she and her husband sued, alleging that the defendants’ actions violated

the First Amendment. The district court dismissed the claims against the private-citizen

No. 23-5698, Cox, et al. v. Ruckel, et al.

defendants for failure to state a claim. After discovery, the district court granted summary

judgment to the public-official defendants based on their qualified immunity. We affirm.

I.

In March 2017, Cox and Meade were married in a ceremony on the Cabin Creek Covered

Bridge. Soon after their marriage, they learned that the property abutting the bridge was for sale.

So the couple decided to purchase the lot, fix up the dilapidated home on the property, and move

to Lewis County. They purchased the land from Dennis Humphries, who was still the owner of

record despite having abandoned the property some years before. At the time of closing, Cox and

Meade had not discussed the borders of the property with anyone and had not inspected the

boundaries. But the couple was provided with a Property Valuation Administrator (PVA) map,

which they understood as outlining their property’s borders.

A quick note on the relevant geography. Cabin Creek runs from south to north through

Lewis County until it reaches the Ohio River. And the Cabin Creek Covered Bridge spans the

river’s banks. The home that Cox and Meade purchased is on the western side of Cabin Creek.

The old county road that used to cross the creek at the covered bridge passes directly in front of

the couple’s house. But in 1983, the Commonwealth of Kentucky determined that the century-old

covered bridge was no longer suitable for vehicular traffic. So it constructed a new concrete bridge

several hundred meters downstream of the covered bridge and realigned Cabin Creek Road to

cross the creek at that point. Because the covered bridge was closed to vehicles (though still open

to pedestrians), the vestigial spur of the old road that runs in front of Cox and Meade’s home

stopped functioning as an official road maintained by Lewis County.

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No. 23-5698, Cox, et al. v. Ruckel, et al.

But because the property had been abandoned for so long, members of the Lewis County

community had grown accustomed to using it to access the covered bridge. And they frequently

used the property to fish, swim, and enjoy Cabin Creek in the shadow of the covered bridge, which

they saw as part of their heritage.

The opposite side of the covered bridge from Cox and Meade’s house had a gravel patch,

which visitors used to park. After purchasing the property, Cox spoke with county officials about

creating an official parking lot on that gravel patch to limit the number of people driving and

parking on the road in front of her house. Cox claims that she talked with Ruckel about allowing

visitors to park on the eastern side of the creek in return for the county paying for maintenance and

mowing that site. As part of this plan, Cox stated that she planned to “put up a gazebo and create

a park-like atmosphere” for visitors that would serve as an alternative to parking in front of her

house on the western side of the creek. R.67, Cox Dep., p.36, PageID 1818.

But conflict soon arose over access to the bridge. Cox and Meade became concerned with

the amount of traffic on the old road in front of their house. Specifically, Cox objected to the

number of cars that were “parked feet from her front door in a rural area.” R. 53-14, Dep. Ex. 10,

p.2, PageID 982. Though Lewis County still had title to the old road, in 2012 it granted an

easement to the Commonwealth (the road easement), granting it use of the road to access the

bridge. That agreement explicitly stated that failure to use the roadway to the west of the bridge

for two consecutive calendar years would terminate the road easement. But the bridge itself

belongs to the Kentucky Department of Parks, which delegates some of its supervisory authority

over these landmarks to the Buffalo Trace Covered Bridge Authority.

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No. 23-5698, Cox, et al. v. Ruckel, et al.

Uncertainty over the status of the road easement plagued Cox and Meade as they renovated

their new home. Cox viewed the easement on the road as having terminated, at least on her side

of the creek, based on Kentucky’s failure to maintain the road. And the county officials agreed—

at least at first. Around that time, the Commonwealth requested a new survey of the old access

road. Cox claims that Ruckel told her that “they were doing the survey for the purposes of

returning the road” in front of the house to Cox and Meade so that they “would have clear title.”

R.67, Cox Dep., p.39, PageID 1821. And in March 2018, Benjamin Harrison of the Lewis County

Attorney’s Office advised the Commonwealth that the county viewed the road easement as

terminated for lack of use.

No one at the Covered Bridge Authority ever responded to Harrison’s letter. And internal

communications make it clear that the Authority’s members still believed that the road easement

was in place. Still, without an acknowledgment that the Authority understood the easement had

been terminated, Harrison informed Cox of his belief that “full use and ownership of the road [wa]s

with the current landowners—Carrie Cox and Guy Meade.” R.53-17, Dep. Ex. 12, p.2, PageID

986.

Even with this letter, Cox and Meade were still apprehensive about trespassing and

criminal activity on the bridge. Subscribing to the adage that good fences make good neighbors,

Cox and Mead posted a “private property” sign on the entrance to the old road and installed a gate.

Lori Ulrich, a member of the Covered Wooden Bridge Authority, became incensed that Cox and

Meade were “restricting access and running people out of the bridge after dark.” R.53-16, Dep.

Ex. 11A, p.1, PageID 984. She contacted Amy Kennedy, the then-director of the Buffalo Trace

Area Development District, who concluded that Cox was “up to no good.” Id. And so the

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No. 23-5698, Cox, et al. v. Ruckel, et al.

Commonwealth considered legal action against Cox and Meade to ensure road access to the

western side of the bridge.

Members of the community also began to resent what they perceived as Cox’s attempts to

deny access to the bridge. Some formed a Facebook group called the “Troll of Cabin Creek

Covered Bridge” accusing Cox of attempting to steal the bridge. From there the exchanges grew

more and more acrimonious. Indeed, two individuals—Lisa Bradford and Dianna Malone—

eventually faced criminal charges for harassment related to their activities. And Cox and Meade

called the county sheriffs many times to report trespassing, though the remoteness of their home

meant that trespassers had often left before deputies arrived to verify the complaint. As part of the

harassment, someone shot and killed Cox’s cat.

In October 2019, the county installed a light pole and trail camera at the bridge because of

the concerns about criminal activity. The camera was only accessible to county officials, but

members of the community mistakenly believed that Cox and Meade were the ones recording

them. So they decided to attend the next meeting of the Lewis County Fiscal Court to “have the

camera removed” and “put a stop to this woman trying to control the bridge.” R.53-66, Dep. Ex.

54, p.1, PageID 1106. Cox also decided to attend. Because Ruckel, as Lewis County Judge

Executive, would preside over the fiscal court, Cox let him know about her intention to speak at

the meeting. Ruckel advised against speaking at the meeting because he believed it was more of

a “law enforcement issue and not a fiscal court issue.” R.54, Ruckel Dep., p.57, PageID 1184.

Undeterred, Cox and Meade decided to raise the issue at the next hearing, which happened on

October 14, 2019.

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No. 23-5698, Cox, et al. v. Ruckel, et al.

At the meeting, Cox spoke on the bridge issue. But the exact content of some of her speech

is unclear. Cox and Meade had hired a television crew to record her speech, but they stopped

recording right after prepared remarks—thus missing the rest of the meeting. Cox maintains that

after her initial speech she offered some other thoughts on how county officials had handled the

bridge issue. But the film crew didn’t record these parts of her remarks. And before speaking,

Cox had passed out informational packets. She also claims that Sheriff Johnny Bivens handed out

the PVA map showing that her property extended to the eastern side of the creek.

After that meeting, Ruckel began to work on the bridge problem in earnest. He believed

that the county had an agreement with Melvin Hughes, a property owner on the eastern side of

Cabin Creek, to use some property on the eastern end of the bridge (the parking easement) as a

parking and public access area in exchange for mowing and maintaining it. Despite his belief in

the preexisting arrangement, Ruckel could not locate any signed agreement granting the county

such an easement. But a 2007 survey by the county surveyor suggested that the area to the east of

the bridge was subject to a parking easement from Hughes. To make it official, Ruckel asked

Harrison to draft a new parking easement. And because he did not know Hughes well, he asked

his friend Jonathan Shane Wallingford to accompany him when he went to ask Hughes for the

parking easement. So Ruckel and Wallingford went to Hughes’ home and had him execute the

newly drafted parking easement.

On October 21, Ruckel sent a text message to Cox notifying her that his entire “last week

after fiscal court ha[d] been filled with this covered bridge issue.” R.53-33, Dep. Ex. 26, p.1,

PageID 1014. He noted that the 2007 survey showed that Cox and Meade’s “property goes to the

middle of the creek” while the eastern side of the creek was owned by Hughes and the

Commonwealth of Kentucky. Id. He also stated that “[t]he county has an easement on Hughes’s

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No. 23-5698, Cox, et al. v. Ruckel, et al.

property,” though he failed to mention that the parking easement was only a week old. Id. And

finally he notified Cox that the local newspaper, the Lewis County Herald, “ha[d] all this info”

and that it would appear in the paper that week. Id. He closed the message by stating that he

“want[ed] the facts out there and people will know now.” Id. But he invited her to call him, noting

that he had “a little time this morning before meetings if [she] want[ed] to talk.” Id. Cox alleges

that when she called Ruckel he told her to not dispute what was in the newspaper article or else

“he would open the road in front of [her] house.” R.67, Cox Dep., pp.73–74, PageID 1855–56.

As promised, the Lewis County Herald ran the article. It quoted Ruckel as saying that he

wanted to balance the right of the people to access the bridge with Cox and Meade’s privacy

interest. Based on the 2007 survey, he stated that Cox and Meade did not own both banks on either

side of the bridge because their property line extended only to the middle of Cabin Creek. He

noted that the county had a parking easement on the eastern side of the bridge for parking so

visitors “can access the creek.” R.51-15, Mot. for Summ. J. Ex. G, p.1, PageID 921. But notably,

the article did not mention whether the public could access the part of the old road that runs in

front of Cox and Meade’s house.

The Lewis County Herald then printed an op-ed written by Wallingford, supporting

Ruckel’s position. The op-ed emphasized that the PVA map that Cox and Meade had shown at

the meeting was not “legal or binding in any way, shape or form” before affirming that the county

had a parking easement. R.53-29, Dep. Ex. 23, p.1, PageID 1000. And Wallingford castigated

Cox and Meade for “calling law enforcement officials to report trespassing on private property

that did not even belong to them.” Id. He then accused the couple of making their complaints in

bad faith, harassing “those who chose to visit our local, refurbished, historic landmark.” Id. And

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No. 23-5698, Cox, et al. v. Ruckel, et al.

the op-ed concluded by praising Ruckel for addressing the bridge issue “head-on” using “facts

from reliable sources.” Id.

After the article and op-ed were released, Malone added a celebratory post on the Troll of

Cabin Creek Facebook page. Her post concluded with the following rather cryptic remark:

I know everyone was pissed at Todd Ruckel and so was [I]. But after [I] was told

what was going on and what they was doing [I] backed off. I couldn[’]t say

anything so that[’]s why [I] posted what [I] did. Todd is on our side believe me

and [I] want to also thank Shane Wallingford and the others.

R.53-75, Dep. Ex. 63, p.1, PageID 1115. In response to the article and the reaction it garnered

online, Cox contacted Harrison, who stated that he “couldn’t believe that shit was in the paper.”

R.53-36, Dep. Ex. 28A, p.1, PageID 1023. And Cox alleges that Harrison told her that she had “a

very good case for first amendment rights retaliation because all of these things have transpired.”

R.67, Cox Dep., p.72, PageID 1854.

The location of the parking easement quickly became a source of friction between the

homeowners and the county because the exact ownership of the land encumbered by the easement

was disputed. As part of the conflict over the parking easement, Cox commissioned Cahill

Surveyors to survey her and Meade’s property. Cox alleges that this survey found that the property

line went over the creek and that it matched the 1891 survey and PVA map of their property. And

so she maintains that she and Meade own the land on which the disputed parking easement lies.

Cox also claimed that the county’s parking easement lies on property that she—rather than

Hughes—allowed the county to mow in return for use as a parking lot. Yet Ruckel stated that he

didn’t know why the county would have such an agreement with Cox because he always

understood the land to belong to Hughes as shown by the 2007 survey. But Cox alleges that the

2017 survey conducted by the Commonwealth had “uncovered problems” with the 2007 survey,

making Ruckel’s reliance on it unreasonable. R.67, Cox Dep., pp.38–39, PageID 1820–21.

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No. 23-5698, Cox, et al. v. Ruckel, et al.

She claims that Jean Bird, a lawyer with the Commonwealth, had told her as much and that both

Ruckel and Harrison knew about this conversation. Ruckel and Harrison each deny that they

learned of any potential problems with the 2007 survey.

Less than two weeks after this survey, the Lewis County Fiscal Court petitioned to quiet

title to the area of the parking easement. The fiscal court added the Kentucky Tourism, Arts, and

Heritage Cabinet’s Department of Parks as a defendant because it “may be claiming an interest to

property located adjacent to” the area covered by the petition. R.53-48, Dep. Ex. 37, p.4, PageID

1044. Eventually, the Lewis County Circuit Court granted the Parks Department summary

judgment and confirmed the property interest in the old road in front of Cox and Meade’s home.

And the Kentucky Court of Appeals affirmed. See Cox v. Commonwealth, No. 2022-CA-1068,

2023 Ky. App. Unpub. Lexis 701, at *14 (Ky. Ct. App. Dec. 1, 2023).

At the same time Cox and Meade were experiencing a redoubled harassment campaign by

members of the community who felt that the couple was trying to steal the bridge. The couple

called the police more than fifty times since the start of 2020. Cox thought her primary antagonists

were Dianna Malone and Terri Thomas, one of the Lewis County Magistrates.

In October 2020, Cox and Meade sued Ruckel, Thomas, Wallingford, Kennedy, the

Malones, and an assortment of John Does for First Amendment retaliation and conspiracy to deny

them their civil rights. Wallingford and the Malones moved to be dismissed for failure to state a

claim. The district court granted both motions, holding that the complaint included insufficient

factual allegations to show that “Wallingford and the Malones acted in concert with state officials

to retaliate against [them].” R.23, Op. & Order, p.8, PageID 181.

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No. 23-5698, Cox, et al. v. Ruckel, et al.

After discovery, Ruckel, Thomas, and Kennedy moved for summary judgment. So Cox

and Meade filed their own motion for partial summary judgment. In support, Cox and Meade

introduced a declaration from Meade about certain statements that Cox allegedly made at the fiscal

court meeting. Ruckel and the other defendants moved to strike Meade’s declaration under the

sham affidavit rule. The district court granted the defendants’ motion for summary judgment,

finding them entitled to qualified immunity; it also struck Meade’s declaration under the sham

affidavit rule. So Cox and Meade appealed both the grant of summary judgment1 and the earlier

dismissal of their claims against Wallingford.

II.

Begin with the conspiracy claim against Wallingford. We review a dismissal for failure to

state a claim de novo. Smith v. Gen. Motors LLC, 988 F.3d 873, 877 (6th Cir. 2021). In doing so,

we view the complaint in the light most favorable to the non-moving party and accept all well-

pleaded factual allegations as true. Id.

Cox and Meade claim that Wallingford conspired with public officials to retaliate against

them for speaking at the fiscal court meeting. The complaint’s key allegations against Wallingford

were that he (1) attended the fiscal court hearing and (2) wrote an op-ed in the local newspaper on

the covered-bridge issue that favored Ruckel. Determining that both actions implicated

Wallingford’s own First Amendment rights, the district court dismissed the conspiracy claim

against him because his protected actions couldn’t be the basis of a § 1983 claim. Although we

disagree with this precise reasoning, we affirm the district court’s larger holding that the complaint

failed to provide sufficient facts to make the conspiracy claim against Wallingford plausible.

1

Cox and Meade do not appeal the grant of summary judgment as to their claims against Amy

Kennedy.

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No. 23-5698, Cox, et al. v. Ruckel, et al.

A.

Private citizens like Wallingford may be sued under 42 U.S.C. § 1983 if they “conspired

with state officials to violate constitutional rights.” Cooper v. Parrish, 203 F.3d 937, 952 n.2 (6th

Cir. 2000). Our circuit applies a simple test for both civil and criminal conspiracies. Rudd v. City

of Norton Shores, 977 F.3d 503, 517 (6th Cir. 2020). A plaintiff must show (1) the existence of a

“single plan,” (2) a “general conspiratorial objective” shared among the defendants, and (3) the

commission of an overt act in furtherance of the conspiracy that caused the complained-of injury.

Hooks v. Hooks, 771 F.2d 935, 944 (6th Cir. 1985). The essence of the conspiracy is the agreement

to commit an unlawful act. United States v. Wheat, 988 F.3d 299, 306 (6th Cir. 2021). So long as

this element is present, there is “no requirement that the defendant himself commit the overt act.”

See United States v. Fox, 134 F.4th 348, 370 (6th Cir. 2025) (per curiam) (quoting United States

v. Bradley, 917 F.3d 493, 505 (6th Cir. 2019)). And any individual who joins the conspiracy can

be held liable even if they didn’t commit an overt act. Id.

On appeal, Wallingford argues that the only substantive allegations directed against him

involved conduct protected by the Noerr-Pennington doctrine. The Noerr-Pennington doctrine

developed from antitrust law to balance the statutory prohibitions of the Sherman Act with the

constitutional protection of the right to petition. See E. R.R. Presidents Conf. v. Noerr Motor

Freight, Inc., 365 U.S. 127, 139–40 (1961); United Mine Workers of Am. v. Pennington, 381 U.S.

657, 670 (1965). Despite its origins in antitrust law, we have held that “[t]he doctrine immunizes

parties from liability under antitrust laws or § 1983 for actions taken when petitioning authorities

to take official action.” Knology, Inc. v. Insight Commc’ns Co., 393 F.3d 656, 658 (6th Cir. 2004).

And “petitioning authorities to take official action” is protected under the First Amendment “even

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No. 23-5698, Cox, et al. v. Ruckel, et al.

where the petitioning activity has the intent or effect of depriving another of property interests.”

Id.

Both of Wallingford’s alleged actions—attending the fiscal court meeting and publishing

the op-ed—can be understood as either protected speech or petitioning the government for official

action. Wallingford “cannot be held liable for [these] actions” because they “were protected by

the first amendment rights to speak freely and to petition the government.” Eaton v. Newport Bd.

of Educ., 975 F.2d 292, 299 (6th Cir. 1992). And the complaint does not allege that these actions

were merely a “sham” for intentional harassment. Id. at 298 (quoting City of Columbia v. Omni

Outdoor Advert., Inc., 499 U.S. 365, 380 (1991)). So neither of the alleged actions can qualify as

overt actions in furtherance of the conspiracy because that would amount to imposing liability for

a constitutionally protected action. After all, § 1983’s private right of action does not penalize

speech otherwise protected by the First Amendment.

Yet that is not the end of the inquiry. Even if Wallingford’s speech deserves First

Amendment protection, that by itself doesn’t mean that the conspiracy claim against him must be

dismissed. The complaint claims that Wallingford was a part of a conspiracy where several other

overt acts were alleged—acts that were not challenged in the motion to dismiss. That neither of

Wallingford’s own actions constituted an overt act for the conspiracy does not mean he cannot be

held liable for a conspiracy. Even though the First Amendment prevents liability from directly

attaching to the protected speech, these lawful actions could “plausibly raise an inference of

unlawful agreement.” See Erie Cnty. v. Morton Salt, Inc., 702 F.3d 860, 869 (6th Cir. 2012). So

the question is not whether Wallingford individually committed any overt act, but whether he

joined the alleged conspiratorial agreement to unlawfully retaliate against Cox and Meade for their

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No. 23-5698, Cox, et al. v. Ruckel, et al.

speech. And the success—or failure—of this claim hinges on whether the complaint plausibly

alleges Wallingford’s participation in the conspiratorial agreement.

B.

And so we address the plausibility of the conspiracy claim. To survive a motion to dismiss,

a complaint must “state a ‘claim to relief that is plausible on its face.’” Kovalchuk v. City of

Decherd, 95 F.4th 1035, 1037 (6th Cir. 2024) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)). To have facial plausibility, the plaintiff must plead “factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Crawford v. Tilley, 15 F.4th 752, 762 (6th Cir. 2021) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009)). But pleading “facts that are merely consistent with a defendant’s liability” isn’t enough

to nudge a complaint across “the line between possibility and plausibility of entitlement to relief.”

Id. (quoting Iqbal, 556 U.S. at 678). More is required.

In reviewing a previously dismissed claim, we limit our review to “the complaint itself,”

because we “cannot decide that a complaint was worthy of proceeding to discovery against one

party by considering evidence uncovered during discovery against another.” Agema v. City of

Allegan, 826 F.3d 326, 332 (6th Cir. 2016). After all, “a district court may not consider matters

beyond the complaint” in reviewing a motion to dismiss. Winget v. JP Morgan Chase Bank, N.A.,

537 F.3d 565, 576 (6th Cir. 2008). And it would be an odd inversion indeed if this court could

second-guess the correctness of the district court’s dismissal using evidence that we specifically

instructed that court not to consult. So the conspiracy claim rises or falls based on the factual

allegations contained in the complaint—nothing more.

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No. 23-5698, Cox, et al. v. Ruckel, et al.

Recall that any complaint claiming civil conspiracy must plead (1) the existence of a single

plan, (2) a general conspiratorial objective shared among the defendants, and (3) the commission

of an overt act in furtherance of the conspiracy that caused the complained-of injury. Hooks, 771

F.2d at 944. This court has noted that “allegations alone, even if conclusory or improbable” may

be sufficient to plead a conspiracy at “this early stage of litigation.” Novak v. City of Parma, 932

F.3d 421, 436 (6th Cir. 2019). So the mere fact that the “defendant’s briefing identifies a ‘more

likely alternative explanation[]’ for what occurred” doesn’t render a conspiracy claim implausible.

Rudd, 977 F.3d at 517 (alteration in original) (quoting 16630 Southfield Ltd. P’ship v. Flagstar

Bank, F.S.B., 727 F.3d 502, 505 (6th Cir. 2013)). Still, the complaint must allege the conspiracy

with “specificity” to survive a motion to dismiss. Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th

Cir. 1987). Allegations of parallel conduct, without the connective tissue of a conspiracy, will not

suffice.

Under this standard, Cox and Meade’s complaint falls short. Yes, they meet the

requirements of the conspiracy test as to some alleged conspirators not including Wallingford.

First, their complaint alleges a specific plan—to retaliate against Cox and Meade for their speech

at the fiscal court meeting. And second, the complaint alleges several overt acts taken in

furtherance of the conspiracy—which Wallingford didn’t challenge in his motion to dismiss. So

if Cox and Meade could allege that Wallingford had “joined in the conspiracy’s objectives,” they

would have pleaded a plausible claim to relief. Rudd, 977 F.3d at 518. But it is on the third prong

that the complaint stumbles.

As Wallingford points out, he is strangely absent from Cox and Meade’s allegations of a

wide-ranging conspiracy in Lewis County. Indeed, beyond the conclusory allegation that

Wallingford was a part of the conspiratorial agreement, the complaint’s only allegations are that

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No. 23-5698, Cox, et al. v. Ruckel, et al.

(1) he was good friends with Ruckel, (2) he became infuriated at Cox and Meade after hearing

their speech at the fiscal court meeting, and (3) he published an op-ed in the Lewis County Herald

“praising Ruckel and casting aspersions on” Cox and Meade. R.1, Compl., p.7–8, PageID 7–8.

That’s it.

These allegations don’t allow the reasonable inference that Wallingford joined the alleged

conspiratorial agreement to retaliate against Cox and Meade. That Ruckel was friends with

Wallingford isn’t enough because “mere association with conspirators is not enough to establish

participation in a conspiracy.” United States v. Hughes, 505 F.3d 578, 588 (6th Cir. 2007) (quoting

United States v. Pearce, 913 F.2d 159, 162 (6th Cir. 1990)). Neither is his attendance at the fiscal

court meeting, nor his publication of the op-ed. These allegations fail not because of the First

Amendment protection for Wallingford’s speech, but because they aren’t enough to allow a

reasonable inference of his joining the conspiratorial agreement.

Although speech protected by the First Amendment cannot give rise to liability under

§ 1983, it can provide factual support for the allegation that the speaker was part of a conspiracy.

Because “it is the agreement which forms the nucleus of the offense” in conspiracy cases, the

constitutionally protected speech provides evidence of the crime rather than being the crime itself.

United States v. Xu, 114 F.4th 829, 840 (6th Cir. 2024) (quoting United States v. Sinito, 723 F.2d

1250, 1256 (6th Cir. 1983)). So the fact that the Constitution bars direct liability for protected

speech doesn’t mean that such speech couldn’t support a reasonable inference that the speaker

harbored the requisite conspiratorial intent.

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No. 23-5698, Cox, et al. v. Ruckel, et al.

But here, the complaint never alleges more than the remote possibility that Wallingford’s

actions demonstrate a conspiratorial agreement.2 To borrow a phrase from antitrust law, the

complaint merely lists parallel conduct rather than showing any cooperation or shared objective

between Wallingford and the alleged co-conspirators. Such “parallel conduct does not suggest

conspiracy, and a conclusory allegation of agreement at some unidentified point does not supply

facts adequate to show illegality.” Twombly, 550 U.S. at 557. And though an allegation of

conspiracy doesn’t fail just because the defendants can point to a more likely alternative

explanation, Cox and Meade must still allege enough supporting facts to move the claim from the

realm of the possible to that of the plausible. Id. Cox and Meade’s barebones complaint doesn’t

meet this burden. The district court didn’t err in dismissing the conspiracy claim against

Wallingford.

III.

Cox and Meade also challenge—both directly and indirectly—the district court’s grant of

summary judgment to Ruckel and Thomas. First, they claim that the district court erred in rejecting

Meade’s last-minute declaration as an attempt to create a sham fact issue. Second, they argue that

they were entitled to a remedial presumption based on Ruckel’s spoliation of his county email.

And third, they assert that the district court erred in granting summary judgment to Ruckel and

Thomas on this record. The first two points attack the grant of summary judgment indirectly by

2

Subsequent evidence indicates that Wallingford helped Ruckel get the easement—one of the

actions that Cox and Meade complained of as retaliatory. But, as discussed, this after-acquired

evidence from discovery conducted against other parties cannot impact the plausibility of the

conspiracy claim as pleaded in the complaint. The complaint itself needed to provide sufficient

factual allegations of Wallingford’s involvement with Meade in order to pass the initial hurdle of

a motion to dismiss. We recognize the difficulty of pleading a conspiracy with specificity due to

their clandestine nature. But that difficulty alone is not enough to relax the requirement that the

plaintiffs plead “enough fact[s] to raise a reasonable expectation that discovery will reveal

evidence of illegal agreement.” Twombly, 550 U.S. at 556.

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No. 23-5698, Cox, et al. v. Ruckel, et al.

undermining key points of the district court’s decision. The third directly challenges the district

court’s application of the summary judgment standard. Since the first two logically precede the

summary judgment determination, we address them first.

A.

The sham fact rule embodies the common-sense conclusion that “[a] party may not create

a factual issue by filing an affidavit, after a motion for summary judgment has been made, which

contradicts [his] earlier deposition testimony.” Reid v. Sears, Roebuck & Co., 790 F.2d 453, 460

(6th Cir. 1986). Otherwise, any party could defeat summary judgment by submitting an affidavit

contradicting their own prior testimony, which “would greatly diminish the utility of summary

judgment as a procedure for screening out sham issues of fact.” See France v. Lucas, 836 F.3d

612, 622 (6th Cir. 2016) (internal quotation marks omitted); see also 11 James W. Moore et al.,

Moore’s Federal Practice § 56.94[5][a] (3d ed. 2017) (noting that the rule “is considered

necessary to preserve the utility of the summary judgment procedure, preventing parties from

routinely raising ‘sham’ factual disputes by merely submitting affidavits or declarations

contradicting other testimony”); 10A Arthur R. Miller et al., Federal Practice and Procedure

§ 2726.1 (3d ed. 2004) (noting that “the nonmoving party should not be allowed to manufacture a

question of fact to delay resolution of the suit”).

So an affidavit that’s “directly contradictory” to the affiant’s prior sworn testimony should

be struck by the court unless he can provide “a persuasive justification for the contradiction.”

Aerel, S.R.L. v. PCC Airfoils, L.L.C., 448 F.3d 899, 908 (6th Cir. 2006). But contradictions in this

context are construed “narrowly.” Johnson v. Ford Motor Co., 13 F.4th 493, 501 (6th Cir. 2021).

After all, deponents are not required to “volunteer information” or answer questions they’ve never

been asked. Reich v. City of Elizabethtown, 945 F.3d 968, 976 (6th Cir. 2019).

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No. 23-5698, Cox, et al. v. Ruckel, et al.

And yet, even if the affidavit is not directly contradictory to the deposition, the rule may

still “apply when the witness’s affidavit is in tension with that prior testimony.” Boykin v. Family

Dollar Stores of Mich., LLC, 3 F.4th 832, 842 (6th Cir. 2021). In that situation, the key question

is whether “the circumstances show that the party filed the affidavit merely to manufacture a ‘sham

fact issue.’” Id. (quoting Aerel, 448 F.3d at 908). We often approach this question by examining

(1) whether the affiant was cross-examined during his prior sworn testimony, (2) whether the

affidavit is based on newly discovered evidence or information that the affiant had access to at the

time of his prior testimony, and (3) whether the affidavit merely represents an attempt to clarify a

point of confusion in the prior testimony. Johnson, 13 F.4th at 501 n.6. But these factors are

“nonexhaustive.” Aerel, 448 F.3d at 908. So we may consider other facts, too.

Cox and Meade filed Meade’s declaration as an attachment to their response to the

defendants’ summary judgment motion. The declaration states that, after the film crew had

stopped taping the meeting, Wallingford and Malone “again raised the issue of the bridge and

indicated that they thought that the county had been maintaining the area on the other side of the

bridge.” R.69-1, Meade Decl., p.2, PageID 1991. Meade maintained that Cox “respond[ed] to

their comments by again stating that [Cox and Meade] owned the land, and . . . publicly object[ing]

to any additional expenditure of public funds being used to mow or maintain that space.” Id. But

in his deposition, Meade had not testified about this untaped interaction between Cox, Wallingford,

and Malone. At one point he was questioned if he “address[ed] any of the concerns about public

money being used for on (sic) private property at that meeting.” R.70, Reply to Resp., p.3, PageID

1998 (second modification in original). But Meade responded that a recent traumatic brain injury

from a car wreck prevented him from “hav[ing] details like that.” Id.

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No. 23-5698, Cox, et al. v. Ruckel, et al.

Because Meade did not testify about whether his wife raised the issue at the fiscal court

meeting, his subsequent declaration isn’t directly contradictory. So the key question is whether,

by filing this declaration, Meade attempted to create a sham fact issue and frustrate the summary

judgment motion.

Unfortunately, the three-factor test does little to resolve the issue. Neither party put

Meade’s deposition in the record. And we do not know whether he was cross-examined—though

it seems likely that there would have been an opportunity to do so. See Fed. R. Civ. P. 30(c)(1).

Thus, the first factor is inconclusive.3 On the second, Meade’s declaration is not based on newly

discovered information. It is based on information that he claims he could not remember at the

time of his original testimony because of his traumatic brain injury. But even accepting this as

true, we’re left questioning why Meade waited until after the defendants moved for summary

judgment to divulge this information. So the second factor weighs against Meade. And on the

third factor, Meade’s declaration seems to be trying to add new testimony rather than clarify some

3

Granted, the cases are less than clear on how this first factor applies. In the context of depositions,

the terminology of examination and cross-examination can be confusing. Under Federal Rule of

Civil Procedure 30(b)(1), the “party who wants to depose a person by oral questions” gives notice.

The noticing party’s attorney then conducts the initial round of questioning of the witness—called

the examination. The opposing attorney then can cross-examine the witness. Fed. R. Civ.

P. 30(c)(1). But the cases are unclear whether the test is that the witness was cross-examined on

the specific issue in the declaration or whether they were cross-examined at all at the deposition.

Compare France v. Lucas, 836 F.3d 612, 624 (6th Cir. 2016) (noting that the witness “was cross-

examined during his earlier testimony” (internal quotation marks omitted)), with Camfield Tires,

Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1364 (8th Cir. 1983) (noting that the witness “was

cross-examined at length on the subject during the earlier deposition”). This comes down to

whether the test is about the opportunity to ask clarifying questions or whether such clarifying

questions were asked and proved insufficient. We note that the latter interpretation does expose

the rule to some gamesmanship since an attorney might make the strategic choice to waive cross-

examination and choose instead to introduce declarations at the last minute to frustrate summary

judgment. But since we lack the full deposition transcript, we have no occasion to resolve this

question of application.

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No. 23-5698, Cox, et al. v. Ruckel, et al.

confusion in his deposition responses. But it runs into the same question of timing—namely, why

Meade held this information back until a motion for summary judgment had been filed. As a

result, this factor is also inconclusive.

So on the whole, the three-factor test doesn’t determine the outcome here. But since these

factors aren’t meant to be exhaustive, we don’t stop there. Indeed, the most persuasive feature

here is the fact that Meade is offering this testimony rather than Cox herself. After all, this

declaration is about whether Cox spoke about misusing public funds at the fiscal court meeting.

So presumably she would be the best witness to clarify whether such a conversation took place.

But in her own deposition, Cox repeatedly refused to testify that she had raised this issue after the

video crew had stopped recording the meeting, saying only: “I don’t recall.” R.67, Cox Dep. Tr.,

pp.64–65, PageID 1846–47. So it seems that Meade is being used as a stalking horse to put forward

a declaration because Cox couldn’t without creating a sham fact issue herself.4

As the district court noted, it’s “telling that Cox, who allegedly made the statement, was

unable to remember whether she commented on the county’s alleged misuse of funds . . . , while

Meade, who sustained a traumatic brain injury and conceded having memory problems, recalled

that she did so.” Cox v. Ruckel, No. 0:20-120, 2023 WL 4422849, at *10 (E.D. Ky. July 10, 2023).

So given the circumstances of this declaration, it wasn’t an abuse of discretion for the district court

to strike it.

4

Though Cox’s statements might not be directly contradictory, they would almost certainly fail

the sham fact issue test outlined above. Cox was not cross examined at her own deposition, so the

first factor wouldn’t count against her. But the remaining two factors would. Since the declaration

would be about her own actions at the meeting, she would have had access to this information at

the time of her earlier deposition. That is—it wouldn’t be based on newly discovered information.

And Cox couldn’t cast this declaration as an attempt to clarify an ambiguity or misstatement in her

earlier testimony. So Cox couldn’t have offered a declaration like the one Meade did.

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No. 23-5698, Cox, et al. v. Ruckel, et al.

B.

The next preliminary issue is whether the district court erred in holding that the spoliation

of Ruckel’s county email address required an adverse-inference instruction and created a genuine

dispute of material fact that would preclude summary judgment. This court reviews the district

court’s denial of remedies for the spoliation of evidence for an abuse of discretion. Ouza v. City

of Dearborn Heights, 969 F.3d 265, 285 (6th Cir. 2020). As part of this review, we “acknowledge

the district court’s broad discretion in crafting a proper sanction for spoliation.” Adkins v. Wolever,

554 F.3d 650, 652 (6th Cir. 2009) (en banc).

The party requesting a spoliation sanction must show that (1) the individual who controlled

the evidence had “an obligation to preserve it at the time it was destroyed,” (2) the destruction was

done “with a culpable state of mind,” and (3) the evidence destroyed was such that a “reasonable

trier of fact could find that it would support [the adversely affected party’s] claim or defense.”

Yoder & Frey Auctioneers, Inc. v. EquipmentFacts, LLC, 774 F.3d 1065, 1070 (6th Cir. 2014)

(quoting Beaven v. U.S. Dep’t of Just., 622 F.3d 540, 553 (6th Cir. 2010)). Among the sanctions

that a district court can impose for spoliation are (1) dismissal of the case, (2) summary judgment,

or (3) a jury instruction of a negative inference against the party at fault. Automated Sols. Corp.

v. Paragon Data Sys., Inc., 756 F.3d 504, 513 (6th Cir. 2014). But the “severity” of the sanction

imposed varies based on the culpability of the party responsible for destruction. Yoder, 774 F.3d

at 1070. And, in some cases, spoliation sanctions are appropriate for even negligent conduct.

Beaven, 622 F.3d at 554.

While the district court has latitude in determining what form a spoliation sanction should

take, Federal Rule of Civil Procedure 37(e) provides some guidance for unrecoverable electronic

information. The rule distinguishes between negligent and intentional spoliation. If electronic

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No. 23-5698, Cox, et al. v. Ruckel, et al.

evidence “is lost because a party failed to take reasonable steps to preserve it” the court “may order

measures no greater than necessary to cure the prejudice.” Fed. R. Civ. P. 37(e)(1). But the more

serious sanctions—such as a negative inference—are appropriate “only upon [a] finding that the

party acted with the intent to deprive another party of the information’s use in the litigation.” Fed.

R. Civ. P. 37(e)(2).

Cox and Meade’s counsel had notified Ruckel of his obligation to preserve “any and all

evidence” related to the pending suit on June 25, 2020. R.53-44, Dep. Ex. 35, pp.4–5, PageID

1036–37. But when Ruckel left his position as the Judge Executive of Lewis County, he took no

steps to preserve his county email.

In considering the spoliation claim for this email data, the district court ran through the

Rule 37(e) analysis and determined that “remedial action would result in an unwarranted windfall

to the plaintiffs.” Cox, 2023 WL 4422849, at *10. Cox and Meade requested “a rebuttable

presumption that the evidence in question is to be presumed to be inculpatory.” R.69, Mem. in

Opp’n to Mot. to Dismiss, p.11, PageID 1975. But the district court appropriately determined that,

though Ruckel may have been negligent in failing to ensure the preservation of his county email,

there was no indication in the record that he or any of the other defendants intended to destroy the

information to prevent its use in litigation. And the more severe sanction that Cox and Meade had

requested wasn’t appropriate under Rule 37(e). So declining to award the couple’s preferred

sanction was not an abuse of discretion.

C.

Having resolved these preliminary issues, we turn to the heart of the matter—whether the

district court erred in granting summary judgment based on Ruckel and Thomas’s qualified

immunity. In doing so, we review the district court’s grant of summary judgment de novo. Capen

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No. 23-5698, Cox, et al. v. Ruckel, et al.

v. Saginaw Cnty., 103 F.4th 457, 461 (6th Cir. 2024). Summary judgment is appropriate only

when the moving party “shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

Here the main question is whether Ruckel and Thomas are entitled to summary judgment

on the First Amendment retaliation claim. To succeed on a First Amendment retaliation claim, a

plaintiff must show that (1) he “engaged in protected conduct,” (2) the defendant took “an adverse

action . . . that would deter a person of ordinary firmness from continuing to engage in that

conduct,” and (3) the adverse action “was motivated at least in part by the plaintiff’s protected

conduct.” Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc) (per curiam). While

these factors remain constant, a court’s determination of “whether activity is ‘protected’ or an

action is ‘adverse’ will depend on context.” Id. at 388.

But even if a plaintiff demonstrates these elements of First Amendment retaliation,

qualified immunity may still bar suit if the law was not clearly established. Qualified immunity

protects government officials from suit provided that “their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The limited nature of this doctrine balances “the

need to hold public officials accountable when they exercise power irresponsibly” with “the need

to shield officials from harassment, distraction, and liability when they perform their duties

reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009).

The qualified immunity inquiry has two prongs. First, we ask whether the facts, “when

taken in the light most favorable to the party asserting the injury, show the offic[ial]’s conduct

violated” a statutory or constitutional right. Mullins v. Cyranek, 805 F.3d 760, 765 (6th Cir. 2015).

Second, we ask whether, at the time of the violation, the right was clearly established “such ‘that

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No. 23-5698, Cox, et al. v. Ruckel, et al.

a reasonable official would understand that what he is doing violates that right.’” Id. (quoting

Saucier v. Katz, 533 U.S. 194, 202 (2001)). We may address these prongs in the order of our

choosing. Pearson, 555 U.S. at 236. And once the doctrine has been invoked, the plaintiff bears

the burden of proving that the defendant is not entitled to qualified immunity. Baker v. City of

Hamilton, 471 F.3d 601, 605 (6th Cir. 2006). Because Ruckel and Thomas both assert qualified

immunity, we consider each official’s entitlement to such immunity separately. Smith v. City of

Troy, 874 F.3d 938, 944 (6th Cir. 2017) (per curiam).

We start with the protected conduct requirement. Cox and Meade have shown that Cox

spoke at the fiscal court meeting—a protected activity. 5 Speaking with a public official, especially

in a public forum, can “implicate both the freedom to petition and the freedom of speech.” Rudd,

977 F.3d at 513; see also Holzemer v. City of Memphis, 621 F.3d 512, 520 n.2 (6th Cir. 2010)

(noting that a conversation with a government official can amount to petitioning activity even

when the request is not reduced to writing). As a result, Cox and Meade can likely meet the first

requirement of showing that they engaged in protected conduct.

5

The parties debate whether Cox’s speech at the fiscal court meeting amounted to protected speech

because it touched on a matter of public concern. But when the plaintiff is a private citizen, we

don’t require a showing that the speech or protected conduct touched upon matters of public

concern because that requirement is limited to the context of “public employment, where free

speech rights must be balanced against the need to effectively manage a governmental entity.”

Jenkins v. Rock Hill Loc. Sch. Dist., 513 F.3d 580, 586–87 (6th Cir. 2008). Obviously, the Meade

affidavit would make it easier for Cox and Meade to meet this first requirement because it could

show that the couple engaged in clearly protected conduct by criticizing a public employee. But

as discussed, the district court didn’t abuse its discretion in excluding that declaration. Still it

seems likely that the couple’s speech at the fiscal court meeting is protected conduct even if they

leveled no criticism against Ruckel or Lewis County government. But since Cox and Meade’s

claim fails on the second requirement of adverse action, we only assume without deciding that it

meets the first requirement of showing that they engaged in protected conduct.

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No. 23-5698, Cox, et al. v. Ruckel, et al.

But their First Amendment claims stumble on the second requirement because they cannot

show that either defendant engaged in an adverse action. Recognizing this fact, Cox and Meade

suggest that this court’s qualified-immunity inquiry “extends only to the protected

conduct/speech . . . because it is clearly established that public officials cannot retaliate against

citizens for engaging in such speech.” Appellant Br. at 34 (emphasis modified). Not so. Their

suggestion mistakenly defines the protected right “at too high a level of generality.” Finley v.

Huss, 102 F.4th 789, 808 (6th Cir. 2024) (citing White v. Pauly, 580 U.S. 73, 79 (2017)). And our

caselaw makes clear that the “salient question” is whether “the state of the law” provides “fair

warning” to the defendants that specific actions might be unconstitutional. MacIntosh v. Clous,

69 F.4th 309, 319 (6th Cir. 2023) (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)). So we avoid

defining the protected right in a way that would convert “a guarantee of immunity into a rule of

pleading.” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 639 (1987)). And we review

whether any of the claimed adverse actions amount to a constitutional violation as part of our

qualified immunity inquiry.

Applying this standard, we find that both Ruckel and Thomas are entitled to qualified

immunity. Of course, Cox and Meade have the right to speak freely without fear of harassment or

retaliation by public officials. But even viewed in the light most favorable to Cox and Meade, the

record doesn’t support the claim that Ruckel or Thomas violated a clearly established

constitutional right.6

6

Because we determine that none of the alleged adverse actions are sufficient to go to a jury, we

don’t address whether Cox and Meade could show that any of the alleged adverse actions were

prompted by the couple’s protected conduct.

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No. 23-5698, Cox, et al. v. Ruckel, et al.

1.

The complaint alleges that Ruckel retaliated against Cox and Meade by obtaining the

parking easement over property that they claimed, participating in the harassment campaign,

threatening to open the road in front of their house, and filing the quiet title action against the

couple. So we address whether any of the claimed adverse actions by Ruckel violated Cox and

Meade’s clearly established constitutional rights.

a.

Begin with the claim that obtaining the parking easement over land claimed by Cox and

Meade was a constitutional violation. The factual allegations indicate that Ruckel was operating

under a reasonable belief that the land belonged to Melvin Hughes and that he was merely

formalizing an agreement that pre-existed his tenure as Judge Executive. Ruckel relied on the

borders established in the 2007 survey to try and achieve a compromise that would give Cox and

Meade privacy while also allowing others to visit the bridge. And the record does not support the

inference that Ruckel knew that Cox believed the property subject to the easement belonged to

her. So even construing the record in the light most favorable to the nonmoving party, Ruckel’s

acquisition of the easement from Hughes could not amount to an adverse action.

But even if Cox and Meade could show that the easement was an adverse action retaliating

against the couple’s speech, such a constitutional violation wouldn’t be clearly established.

Resisting this conclusion, the couple claims that this court’s caselaw “establish[es] that

interference or restriction of property rights in land is sufficient adverse action for a First

Amendment retaliation case.” Appellant Br. at 41. They cite two cases to support this proposition:

Fakhoury v. O’Reilly, 837 F. App’x 333 (6th Cir. 2020), and Fritz v. Charter Township of

Comstock, 592 F.3d 718 (6th Cir. 2010). But neither is sufficient to show that the easement

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No. 23-5698, Cox, et al. v. Ruckel, et al.

deprived them of a clearly established constitutional right. Fakhoury is an unpublished case which

could not establish the law even if it stood for the proposition that Cox and Meade ascribe to it.

See Brown v. Giles, 95 F.4th 436, 439 (6th Cir. 2024). And Fritz merely puts officials on notice

that the denial of zoning and signage variances in retaliation for protected speech violates the

Constitution. 592 F.3d at 728–29. That holding didn’t give officials notice that any retaliatory

interference with property rights—or claimed property rights—violated the Constitution. So even

if securing the parking easement was a constitutional violation, it couldn’t be clearly established.

b.

Likewise, Ruckel’s release of information about the parking easement in the newspaper

didn’t rise to the level of harassment that violated the Constitution. To avoid this conclusion, Cox

and Meade argue that it is clearly established that harassment and defamatory statements retaliating

against speech can violate the Constitution. This is true but irrelevant. Ruckel’s comments about

the easement’s existence and his clarification of the property boundaries “were not highly

embarrassing nor did they impugn [Cox and Meade’s] character.” Id. at 727. Our caselaw makes

clear that the bar for defamatory statements in the First Amendment retaliation context is high. Id.

And so the Lewis County Herald article was “not of such a character” to be defamatory or

harassing in the constitutional sense. Id. The statements provided to the paper merely confirmed

the property lines as shown in the 2007 survey before noting that the county had acquired a parking

easement for public use on the opposite side of the creek from Cox and Meade. This didn’t amount

to a campaign of harassment or intimidation against the couple, though they may have disagreed

with the article’s contents. See Thaddeus-X, 175 F.3d at 398–99. So releasing this information

wasn’t a constitutional violation.

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No. 23-5698, Cox, et al. v. Ruckel, et al.

c.

Nor was the claimed threat to open the road in front of the couple’s house. Cox testified

that Ruckel warned her that continued resistance on the bridge issue might result in the road in

front of her house being opened to the public. And the Lewis County Fiscal Court, under Ruckel’s

direction, did initiate the quiet title suit that had the effect of doing exactly that. So Cox

characterizes her conversation with Ruckel as a threat made in retaliation for her speech at the

fiscal court meeting. But even if Ruckel made such a statement in response to Cox’s speech at the

meeting, this wouldn’t violate the Constitution. While we have held that an official’s threatening

behavior in response to speech can violate the Constitution, we generally limit this to “physical

threats” of violence that are clearly beyond the bounds of what a public official may do. See

MacIntosh, 69 F.4th at 316 (quoting Thaddeus-X, 175 F.3d at 398); see also Zilich v. Longo, 34

F.3d 359, 365 (6th Cir. 1994) (“No reasonable official could possibly believe that it is

constitutionally permissible to retaliate against a political opponent with physical threats. . . .”).

And where we have recognized non-physical threats, they tended to be especially serious threats

to a person’s “economic livelihood.” Fritz, 592 F.3d at 728.

The limitation of threats to those of physical violence or severe economic devastation stems

from the need “to ensure that real injury is involved, lest we ‘trivialize the First Amendment.’”

See Mezibov v. Allen, 411 F.3d 712, 721 (6th Cir. 2005) (quoting Thaddeus-X, 175 F.3d at 397).

Cox and Meade have provided evidence that they valued keeping the road in front of their house

closed to the public. And they claim that they had reasonable fears of violence if it was opened to

the public—due in part to the acrimony caused by the covered bridge debate. But Ruckel himself

did not threaten physical violence against them. And physical violence was not the natural and

foreseeable result of opening the road. Nor would opening the bridge cause Cox and Meade severe

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No. 23-5698, Cox, et al. v. Ruckel, et al.

economic hardship. So even if Ruckel said what Cox claims he did, it’s likely a bridge too far to

say that amounted to a constitutional violation.

Regardless, even if the alleged threat violated the Constitution, it wouldn’t be clearly

established. That is, an official in Ruckel’s position wouldn’t have known he was acting

unconstitutionally. A reasonable official could have understood their statement as providing Cox

and Meade with the proverbial carrot and stick—if you go along with my proposed compromise

you get to keep your driveway private, but if you continue to stir the pot and get the state officials

involved you might lose that. And nothing in our caselaw would put that official on notice that,

under the circumstances presented here, such conduct was violating a clearly established right.

d.

Finally, Ruckel didn’t violate clearly established law by asking the fiscal court to file a

lawsuit in state court. There was a genuine dispute over who owned the property that the county

claimed the parking easement in—a dispute that was made even worse because each side had

conflicting surveys. In this confusion, Harrison had notified Cox that these intractable land

disputes often required court involvement, and that the county was prepared to “litigate the matter

if sued or bring our own action” if the surveyors couldn’t reconcile the property lines. R.53-47,

Dep. Ex. 36B, p.1, PageID 1040. Ruckel’s participation in the fiscal court’s vote to sue Cox and

Meade was part of his normal duties as Judge Executive. After all, “it is not a tort for government

to govern”—a principle that extends to public officials who are charged with making tough choices

that might impact the rights and interests of others. See Scheuer v. Rhodes, 416 U.S. 232, 241

(1974) (internal quotation marks omitted).7

7

Indeed, Ruckel’s own First Amendment rights might also prevent this lawsuit from being an

adverse action. Recall that the Noerr-Pennington doctrine immunizes a party from § 1983 liability

for petitioning the government, “even where the petitioning activity has the intent or effect of

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No. 23-5698, Cox, et al. v. Ruckel, et al.

But even if Cox and Meade can show that the lawsuit was adverse action, they can’t show

that it violated clearly established law. Resisting this conclusion, Cox and Meade point to Benison

v. Ross, 765 F.3d 649 (6th Cir. 2014), as establishing that filing a lawsuit constitutes an adverse

action in the context of First Amendment retaliation. But the facts of that case make it a poor

vehicle for establishing such a general rule. There, a university filed a lawsuit seeking to recover

sabbatical compensation from a professor, allegedly for retaliatory purposes. We held that “[a]

reasonable individual might have been dissuaded from engaging in protected conduct by the threat

of a lawsuit holding her liable for more than $50,000.” Id. at 660. But in that case, the employer’s

attempt to recover previously disbursed sabbatical compensation was like “the withdrawal of [a]

‘key benefit’” to an employee—a quintessentially retaliatory act. Id. (quoting Dye v. Off. of the

Racing Comm’n, 702 F.3d 286, 304 (6th Cir. 2012)). It would be establishing the rule at an

unreasonably high level of generality to say that this decision put public officials on notice that

filing any sort of lawsuit could amount to a constitutional violation.

depriving another of property interests.” Knology, Inc., 393 F.3d at 658. And it is well-settled

that “filing a complaint in court is a form of petitioning activity.” McDonald v. Smith, 472 U.S.

479, 484 (1985). Granted, this protection doesn’t extend to “baseless litigation.” Id. (quoting Bill

Johnson’s Rests., Inc. v. NLRB, 461 U.S. 731, 743 (1983)). But beyond a conclusory allegation in

their complaint, Cox and Meade can point to nothing showing that the suit over the easement was

meritless. And Ruckel’s vote, even as a government official, to institute the quiet title suit was

petitioning activity entitled to First Amendment protection. See generally B&G Foods N. Am.,

Inc. v. Embry, 29 F.4th 527, 536 (9th Cir. 2022) (holding that Noerr-Pennington doctrine protects

“litigation activities brought by government officials to advance public goals”); Mariana v. Fisher,

338 F.3d 189, 200 (3d Cir. 2003) (“We know of no Supreme Court or federal appellate case holding

that Noerr-Pennington cannot apply to government actors.”); New West L.P. v. City of Joliet, 491

F.3d 717, 722 (7th Cir. 2007) (“As far as the national government is concerned, a municipality has

a right to speak and petition for redress of grievances, so the Noerr-Pennington doctrine applies

fully to municipal activities.”). And so it can’t be an adverse action giving rise to a claim of First

Amendment retaliation because this would be imposing direct liability for Ruckel’s own protected

conduct.

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No. 23-5698, Cox, et al. v. Ruckel, et al.

As a result, a reasonable officer standing in Ruckel’s shoes wouldn’t suspect that his vote

to begin a quiet title action on the county’s parking easement could rise to the level of a

constitutional violation. And so even viewed in the light most favorable to them, Cox and Meade

cannot show that any of Ruckel’s actions violated their clearly established constitutional rights.

Ruckel is entitled to qualified immunity.

2.

Next, we address Cox and Meade’s claims against Thomas. Cox and Meade claim that

Thomas participated in the harassment campaign and used her position as Magistrate to sue Cox

and Meade to quiet title in the disputed area.

Begin with the alleged harassment. While the record shows that Cox and Meade suffered

harassment over the bridge issue, the key problem for their claim against Thomas is that they have

no evidence that she participated. Indeed, the only direct statement Cox and Meade point to as

evidence of this harassment campaign is Thomas’s offhanded comment that Cox was lucky that

the people of Lewis County hadn’t done more because “if this had been 25 years ago, they would

have burnt her house.” R.61, Thomas Dep., p.33, PageID 1423. But Cox and Meade do not claim

that Thomas was part of the Troll of Cabin Creek Facebook Group or that she engaged in any of

that group’s activities on social media, which at times blurred the line between free speech and

harassment. Indeed, the only specific instance of online harassment that Cox could point to in her

deposition was Thomas’s posting of a laughing response emoji on one of Cox’s posts about the

covered bridge debate.

Given the insignificant nature of this conduct, Cox and Meade can’t show that Thomas

deprived them of their constitutional rights. Still the couple argues that it is clearly established

that retaliatory harassment amounts to a constitutional violation. This statement is true with a

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No. 23-5698, Cox, et al. v. Ruckel, et al.

caveat: “sufficiently serious” harassment can amount to a constitutional violation. Spithaler v.

Smith, 803 F. App’x 826, 828 (6th Cir. 2020); see also Rudd, 971 F.3d at 514 (collecting

examples). Placing a laughing emoji on someone’s Facebook post does not. Our caselaw makes

clear that citizens don’t have a right “to sue over any governmental nuisance, no matter how

inconsequential.” Rudd, 977 F.3d at 514. And nothing in these cases should be construed to turn

every piece of expression by a government official into a constitutional tort just because the

plaintiff found it offensive. Thomas’s comments fell within her right to respond to statements

“that were made in the public sphere.” Fritz, 592 F.3d at 727. And so her actions were not a

constitutional violation.

Likewise, Thomas’s vote on the quiet title action doesn’t violate a constitutional right for

much the same reason that Ruckel’s didn’t. And there was no published caselaw that put her on

notice that such an act could amount to First Amendment retaliation. Without such notice,

Thomas’s vote couldn’t violate clearly established law even if Cox and Meade could show that her

vote was a constitutional violation. As a result, Thomas is entitled to qualified immunity.

3.

Last, we turn to whether the conspiracy claims against Ruckel and Thomas can survive the

failure of the substantive retaliation claims. Recall that in the context of constitutional torts, a

conspiracy must show “that there was a single plan, that the alleged coconspirator shared in the

general conspiratorial objective, and that an overt act was committed in furtherance of the

conspiracy that caused injury to the complainant.” Hooks, 771 F.2d at 944. And while conclusory

allegations about a single plan and shared conspiratorial objective, if pleaded with specificity,

might be enough to survive a motion to dismiss, the same is not true at summary judgment. To

survive a motion for summary judgment, the plaintiff must have enough evidence to allow a

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No. 23-5698, Cox, et al. v. Ruckel, et al.

reasonable inference of a conspiracy—not just the possibility of one. See Adickes v. S.H. Kress &

Co., 398 U.S. 144, 153–57 (1970); see also Gutierrez, 826 F.2d at 1539 (holding that a district

court doesn’t err in dismissing conspiracy claims that “lack the requisite material facts”). And so

a district court properly grants summary judgment on a conspiracy claim when “the uncontested

facts establish that no conspiracy existed.” Yancey v. Carroll Cnty., 876 F.2d 1238, 1245 (6th Cir.

1989).

Viewed in the light most favorable to them, Cox and Meade’s evidence cannot show a

conspiracy. Unlike at the motion-to-dismiss phase, mere allegations are no longer sufficient.

When challenged by a motion for summary judgment, a conspiracy claim cannot rest on

“allegations of a conspiracy to get to a jury without ‘any significant probative evidence tending to

support the complaint.’” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (quoting First

Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290 (1968). But Cox and Meade cannot point

to any facts connecting Ruckel and Thomas beyond the fact that the two both happened to have

positions on the Lewis County Fiscal Court. This is not enough. And neither are the complaint’s

conclusory allegations of a conspiratorial agreement and shared objective. More is required to

make an inference of conspiracy reasonable. Without such supporting facts and evidence to bridge

the gap, Cox and Meade’s proposed “web of inference” becomes “too weak” to allow a finding a

conspiracy “absent sheer speculation.” Bazzi v. City of Dearborn, 658 F.3d 598, 603 (6th Cir.

2011) (internal quotation marks omitted). And so the district court didn’t err in granting summary

judgment on the conspiracy claims—the last of Cox and Meade’s claims.

IV.

For all these reasons, we affirm.

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