Soil Friends, LLC v. Charter Twp. of Comstock, Mich.

NOT RECOMMENDED FOR PUBLICATION

File Name: 26a0015n.06

No. 24-1925

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT FILED

Jan 07, 2026

SOIL FRIENDS, LLC, a Michigan limited liability ) KELLY L. STEPHENS, Clerk

)

company, et al.,

)

Plaintiffs-Appellants, )

) ON APPEAL FROM THE

v. ) UNITED STATES DISTRICT

) COURT FOR THE WESTERN

CHARTER TOWNSHIP OF COMSTOCK, ) DISTRICT OF MICHIGAN

MICHIGAN, a Michigan municipal corporation, et )

al., ) OPINION

Defendants-Appellees. )

Before: CLAY, KETHLEDGE, and LARSEN, Circuit Judges.

LARSEN, Circuit Judge. Dissatisfied with zoning restrictions and red tape, Plaintiffs

Benjamin and Sarah Martin and Soil Friends, LLC, sued Charter Township of Comstock and

related parties, raising both federal and state claims. The district court dismissed the case in its

entirety based on absolute and qualified immunity. We AFFIRM.

I.

Plaintiffs Benjamin and Sarah Martin own and operate Plaintiff Soil Friends, LLC, a 22-

acre farm in Comstock Township, Michigan. Plaintiffs grow a variety of produce, some of which

they use to make hard cider. They also use the land for commercial purposes: selling wine, cider,

produce, and other products and offering on-premises consumption of the alcohol.

In 2018, the Michigan Liquor Control Commission (MLCC) issued Plaintiffs a small-

winemaker license and an on-premises tasting-room permit. At that time, Plaintiffs ran these

No. 24-1925, Soil Friends, LLC v. Charter Township of Comstock

operations out of a shipping container. The following year, they built a red barn on their property

and began operating the business inside it, using it for a farm market and cider tastings.

Three years later, a Township official notified Plaintiffs that they would need a special-

exception-use approval to hold private events and parties in the red barn. The official added that

Plaintiffs would need to comply with all applicable building codes to do so. The Kalamazoo Area

Building Authority (KABA) then informed Plaintiffs that they needed a plan showing compliance

with various safety codes.

Plaintiffs subsequently hired an architect and submitted drawings to KABA. KABA

reviewed the drawings and informed Plaintiffs that they needed a drinking fountain and an

accessible route from the public parking area. A month later, the Township cited Plaintiffs for

using the barn to offer food, alcohol, and live music without the required zoning approval and

permits. And the Township posted signage on the red barn, condemning it as a “DANGEROUS

BUILDING – UNSAFE STRUCTURE” under the Township’s Property Maintenance Code.

R. 20-9, Ex. 9, PageID 360. Plaintiffs responded by posting on Facebook a picture of the

condemnation signage and publicly criticizing the Township’s “horrendous leadership.” Id.

During the following six months, Plaintiffs and the Township clashed over what activities

were permissible in the red barn and on the farm. The dispute unfolded through correspondence,

at Township meetings, in court, and online.

The Township sent Plaintiffs various letters and emails detailing what Plaintiffs needed to

do to obtain approval for their desired uses. This included special-exception-use approval, site-

plan approval, building-code compliance, and Fire Marshal approval.

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The Township officials also discussed Plaintiffs’ operations at multiple meetings. They

debated which activities were permissible without Township approval, whether to permit other

activities, and how to permit such activities. And more than once, the officials postponed a final

decision. At one meeting, a Township official “insinuat[ed]” that Plaintiffs should stop posting on

Facebook because such posts damage the Township’s reputation. R. 20, First Am. Compl.,

PageID 277.

Around this time, the Township brought an action against Plaintiffs for the Zoning and

Building Code violations. Plaintiffs and a Township attorney attended an informal hearing before

a state magistrate judge, who found Plaintiffs responsible, imposed a $25.00 fine, and ordered

Plaintiffs to cease commercial operations inside the red barn, absent zoning approval and building

code compliance.

Throughout all this, Plaintiffs repeatedly criticized the Township on Facebook. They

suggested that certain Township officials should not “consider[] reelection” because “[i]t’s not

looking good;” and that the officials “would be doing us all a favor if [they] packed [their] boxes”

and got “out of the way so real leaders can get to work!” R. 20-12, Ex. 12, PageID 377. They

proposed that the “township should make due without [KABA]. Many people are not happy.” Id.

And they complained that “township officials are literally concerned about selling cut Christmas

trees and Santa visiting the farm . . . . This has got to be a joke.” R. 20-15, Ex. 15, PageID 393.

The Township responded with a public statement to address Plaintiffs’ “public media campaign to

discredit the township.” R. 20-13, Ex. 13, PageID 379–80.

On April 27, 2023, the Township held another meeting, and one official opined that the

Township should not consider Plaintiffs’ permit application “because [the official] did not approve

of . . . Benjamin Martin’s character.” R. 20, First Am. Compl., PageID 290. Nonetheless, at this

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meeting, the Township conditionally granted Plaintiffs special-exception-use approval and site-

plan approval. Afterwards, though, Plaintiffs faced additional hurdles in obtaining building

permits.

Displeased with this whole process, Plaintiffs sued the Township, KABA, and fourteen

individuals in federal court, alleging First, Fifth, and Fourteenth Amendment violations—among

other federal and state claims—and seeking both injunctive and monetary relief. Defendants

moved to dismiss on multiple grounds, including absolute and qualified immunity. The district

court granted two defendants absolute immunity, and, holding that Plaintiffs had failed to allege

any violation of “clearly established” rights, the court granted the remaining officials qualified

immunity. The court further disposed of the claims against the Township and KABA based on

Plaintiffs’ representation that they sought to bring claims against the individual defendants only.

The court then dismissed the federal claims with prejudice and declined to exercise supplemental

jurisdiction over the state claims.

Plaintiffs timely appealed, challenging the court’s determinations regarding (1) the claims

against the Township and KABA; (2) qualified immunity; and (3) dismissal with prejudice. At

oral argument, the parties informed the court, for the first time, that they had partially settled their

dispute. Plaintiffs are now using the red barn as desired, mooting their request for injunctive relief;

but Plaintiffs still seek monetary relief for the “damage that occurred prior to” such approval. Oral

Arg. at 8:40–9:14.

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No. 24-1925, Soil Friends, LLC v. Charter Township of Comstock

II.

Plaintiffs raise three arguments on appeal. We address each in turn.

A.

Plaintiffs first argue that they properly pleaded a Monell claim against the Township and

KABA, so the district court erred in dismissing the claims against them. But this argument directly

contradicts the representations Plaintiffs made to the district court. There, Plaintiffs insisted that

they had not pleaded a Monell claim. And Plaintiffs have not explained how the district court

erred by relying on their own representations to dispose of the claims against the municipal

defendants. See Castellon-Vogel v. Int’l Paper Co., 829 F. App’x 100, 102 (6th Cir. 2020).

Defendants argued below that the claims against the individual defendants were official-

capacity suits and should, thus, be dismissed as duplicative of the claims against the municipal

defendants. See Kentucky v. Graham, 473 U.S. 159, 166 (1985). Plaintiffs objected, arguing that

their “omission of a § 1983 Monell claim” from the complaint proved that they were suing the

officials in their individual capacities. R. 30, Resp. to Mot. to Dismiss, PageID 708. Plaintiffs

further argued that their complaint could not have stated a Monell claim because their “allegations

do not seek recourse nor imply a policy, practice, or custom of Defendant Comstock Township

that is in issue.” Id.; see Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978) (holding that a

municipality may not be “held liable unless action pursuant to official municipal policy” caused

the constitutional violation).

The district court took this to mean that Plaintiffs were not bringing any claims against the

Township or KABA and disposed of all claims against them. On appeal, Plaintiffs have not

explained how this was error. Their appellate briefing instead contradicts their representations to

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the district court, claiming that the complaint did “sufficiently allege[] a Monell claim” against the

municipal defendants. Appellants Br. at 21.

When pressed at oral argument in this court, counsel admitted that Plaintiffs’ arguments in

the district court had abandoned any Monell claim related to the First Amendment. Counsel

claimed, however, that Plaintiffs had preserved Monell claims related to the Fifth and Fourteenth

Amendments. But Plaintiffs’ briefing in the district court made no such distinction; nor does its

briefing here attempt to show how it preserved its Fifth and Fourteenth Amendment Monell claims.

We affirm the district court’s dismissal of the municipal defendants.

B.

Plaintiffs next argue that the district court erred in its qualified-immunity analysis. We

disagree.

Qualified immunity protects government officials “not just against liability, but against suit

itself.” Johnson v. Moseley, 790 F.3d 649, 653 (6th Cir. 2015) (citing Pearson v. Callahan, 555

U.S. 223, 231 (2009)). The Supreme Court has “stressed the importance of resolving immunity

questions at the earliest possible stage in litigation”—to ensure that “insubstantial claims” against

officials will be resolved “prior to discovery.” Pearson, 555 U.S. at 231–32 (citations omitted).

When a defendant raises qualified immunity, the plaintiff bears the burden of overcoming it.

Crawford v. Tilley, 15 F.4th 752, 760 (6th Cir. 2021). To do so, the plaintiff must show that the

defendant (1) violated a constitutional right (2) that was clearly established. Johnson, 790 F.3d at

653. To be clearly established, a right must be “dictated by controlling authority,” and must

“clearly” prohibit the official’s conduct “in the particular circumstances before him.” Fitzpatrick

v. Hanney, 138 F.4th 991, 995 (6th Cir. 2025) (citation omitted). The precedent must be “clear

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enough that every reasonable official would interpret it to establish the particular rule the plaintiff

seeks to apply.” Id. (citation omitted).

Plaintiffs failed to challenge the district court’s qualified-immunity analysis on appeal. The

district court granted the individual defendants qualified immunity because Plaintiffs had failed to

demonstrate a clearly established right. The decision rested on the doctrine’s second prong. The

district court explained that Plaintiffs had “wholly fail[ed] to argue—let alone identify—a case

with sufficiently similar facts that would have provided fair warning” to Defendants that their

conduct “violated Plaintiffs’ rights under the Fifth or Fourteenth Amendments.” R. 35, Op. and

Order, PageID 828. And with respect to the First Amendment retaliation claim, the district court

concluded that the one case Plaintiffs identified—Fritz v. Charter Twp. of Comstock, 592 F. 3d

718 (6th Cir. 2010)—was too factually dissimilar to “place[] the constitutional question beyond

debate.” R. 35, Op. and Order, PageID 829.

Plaintiffs’ opening brief on appeal fails to grapple with the district court’s conclusion.

While Plaintiffs argue at length that they plausibly alleged constitutional violations, they advert to

the clearly established prong only when stating the legal rule. They make no attempt whatsoever

to explain why Fritz—the lone case they offered below—clearly established their constitutional

rights. The brief does not even cite Fritz; nor does it offer any other case purporting to clearly

establish their rights. “As the appellant[s], [Plaintiffs] must confront the district court’s reasons

for dismissing [their] claims and explain why the court was wrong. The failure to do so results in

the abandonment of [their] claims” on appeal. Castellon-Vogel, 829 F. App’x at 102 (citing Scott

v. First Southern Nat’l Bank, 936 F.3d 509, 522 (6th Cir. 2019)).

Plaintiffs’ arguments in reply do not save them: “arguments made to us for the first time

in a reply brief are waived.” Sanborn v. Parker, 629 F.3d 554, 579 (6th Cir. 2010). There is a

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good reason for this rule. Defendants here have had no chance to respond to Plaintiffs’ last-minute

attempt to offer some caselaw purporting to clearly establish their Fifth and Fourteenth

Amendment rights, so we will not entertain this argument even in passing. And while we might

have some discretion to reach Plaintiff’s belated argument that Fritz clearly established their First

Amendment rights, we see no error in the district court’s determination that Fritz is too dissimilar

to put “the constitutional question beyond debate.” R. 35, Op. and Order, PageID 829.

We affirm the district court’s grant of qualified immunity to the individual defendants.

C.

Finally, Plaintiffs argue that the district court erred in dismissing their federal claims with

prejudice. Reviewing for an abuse of discretion, we disagree. See Warman v. Mount St. Joseph

Univ., 144 F.4th 880, 899 (6th Cir. 2025). If a party never formally moves to amend his complaint

nor proposes an amendment, a district court does not abuse its discretion in dismissing with

prejudice. Id.; Crosby v. Twitter, Inc., 921 F.3d 617, 627 (6th Cir. 2019). Here, Plaintiffs did

neither—opting instead to include a cursory request at the end of their motion-to-dismiss response.

See Crosby, 921 F.3d at 628.

The district court did not abuse its discretion in dismissing Plaintiffs’ federal claims.

***

We AFFIRM.

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