Paige v. Coyner

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0220p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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MARTHA PAIGE,

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Plaintiff-Appellant,

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No. 09-3287

v.

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KIMBERLY COYNER, In her individual and

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official capacities; BOARD OF

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COMMISSIONERS, WARREN COUNTY;

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Defendants-Appellees. -

WARREN COUNTY PORT AUTHORITY,

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Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 08-00518—S. Arthur Spiegel, District Judge.

Argued: January 15, 2010

Decided and Filed: July 26, 2010

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Before: BOGGS and GILMAN, Circuit Judges; McCALLA, Chief District Judge.

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COUNSEL

ARGUED: Stephen A. Simon, TOBIAS, KRAUS & TORCHIA, Cincinnati, Ohio, for

Appellant. Mark H. Troutman, ISAAC, BRANT, LEDMAN & TEETOR, LLP,

Columbus, Ohio, for Appellees. ON BRIEF: Stephen A. Simon, David Torchia,

TOBIAS, KRAUS & TORCHIA, Cincinnati, Ohio, for Appellant. Mark H. Troutman,

Steven G. LaForge, ISAAC, BRANT, LEDMAN & TEETOR, LLP, Columbus, Ohio,

Vladimir P. Belo, Natalie Trishman Furniss, BRICKER & ECKLER, LLP, Columbus,

Ohio, for Appellees.

GILMAN, J., delivered the opinion of the court. BOGGS, J. (pp. 17-18),

delivered a separate concurring opinion. McCALLA, Chief D. J. (pp. 19-21), delivered

a separate opinion concurring in the judgment.

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The Honorable Jon P. McCalla, Chief United States District Judge for the Western District of

Tennessee, sitting by designation.

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OPINION

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RONALD LEE GILMAN, Circuit Judge. Martha Paige sued a county official

and two county entities pursuant to 42 U.S.C. § 1983, which provides a cause of action

against those who violate a person’s constitutional rights while acting under color of

state law. Paige alleged that after she raised concerns at a public hearing regarding a

proposed interstate-highway project, the county official retaliated against Paige by

calling her employer and saying false things about her speech. Because Paige’s

employer was involved in the development of commercial properties in the county, the

employer allegedly fired Paige as a result of the county official’s call. Paige contends

that the county official intended this result when making the call, thereby violating

Paige’s First Amendment right of free speech.

One of the county entities filed a motion to dismiss pursuant to Rule 12(b)(6) of

the Federal Rules of Civil Procedure. It argued that Paige had failed to state a claim for

which relief can be granted because she did not allege any “state action” by her

employer, as purportedly required under § 1983. The district court granted the motion

and sua sponte dismissed the case against the remaining two defendants. For the reasons

set forth below, we REVERSE the judgment of the district court and REMAND the

case for further proceedings consistent with this opinion.

I. BACKGROUND

A. Factual background

Paige is a long-time resident of Warren County, Ohio, where she owns a large

farm with her husband. In March 2002, she began working as an accountant for Bunnell

Hill Development Company, which privately develops commercial properties in the

area, including Warren County.

No. 09-3287 Paige v. Coyner et al. Page 3

When Paige learned of a proposed road-construction project in 2005 that would

interfere with her property, she and her neighbors attended several public meetings to

oppose the project and to voice their opinions regarding Warren County’s development

plan. Paige was subsequently elected president of the Residents’ Association of West

Central Warren County (Residents’ Association). Bunnell Hill was allegedly aware of

Paige’s “civic activities” and never objected to them.

On August 6, 2007, Paige attended a public meeting held by the Warren County

Port Authority, which was established to encourage economic development in Warren

County. She had concerns about a proposed interstate-highway project in nearby

Monroe, Ohio for which the Port Authority would be a source of funds. Before the

meeting started, Kimberly Coyner approached Paige. Coyner is Director of the Warren

County Office of Economic Development and Executive Director of the Warren County

Port Authority. When Coyner spoke to Paige, Coyner incorrectly identified Paige’s

employer as Henkle Schueler and Associates (a company affiliated with Bunnell Hill)

and asked how long Paige had been employed there. Paige corrected Coyner and

informed her that Paige had been working for Bunnell Hill for more than five years. No

one else overheard this exchange between Paige and Coyner.

Once the meeting began, several residents spoke up about the proposed interstate

project, including Paige. When Paige spoke, she identified herself as a resident of

Warren County and as president of the Residents’ Association. She alleges that at no

time during her public comments did she identify herself as an employee of Bunnell Hill

or “give any indication whatsoever that her remarks should be associated with anyone

other than herself in her capacity as private citizen and president of the Residents’

Association.”

During her remarks, Paige briefly explained the concerns that some members of

the Residents’ Association had about the impact of the interstate project. At the close

of her comments, Paige asked the Board “whether in analyzing a potential development

project they should consider if the project benefits the residents of Warren County.”

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While Paige was speaking, she noticed Coyner’s allegedly negative reaction to

Paige’s inquiry. The interstate project discussed at the meeting was the first project that

Coyner had brought to the Port Authority for its consideration and was one of the first

major projects that she had initiated as Director of the Warren County Office of

Economic Development.

According to Paige, as part of “a plan to retaliate against Ms. Paige for the public

comments she made at the hearing,” Coyner called Bunnell Hill on August 13,

2007—one week after the hearing—and spoke with Greg Bartley, the Executive Vice

President of Bunnell Hill. Coyner falsely told Bartley that Paige had publicly introduced

herself at the Port Authority hearing as an employee of Bunnell Hill and had spoken

negatively about the establishment of the Port Authority. Coyner then “sought

clarification of Bunnell Hill’s commitment to development in the region.”

Three days after the call, on August 16, 2007, Bunnell Hill management met with

Paige and terminated her employment. To justify her termination, they specifically

referenced Coyner’s false allegation that Paige had used Bunnell Hill’s name to oppose

development at the public meeting of the Port Authority.

B. Procedural history

In August 2008, Paige filed her § 1983 complaint against Coyner in both her

individual and official capacities, as well as against the Warren County Port Authority

and the Warren County Board of Commissioners (the body that established the Port

Authority). Paige also raised state-law claims of defamation and tortious interference

with her employment relationship.

The Port Authority filed a motion to dismiss in September 2008, arguing that it

was immune from liability for the state-law claims under Ohio law and that Paige’s

§ 1983 claim was deficient because her alleged injury—the loss of her job—was caused

by her private employer, not by anyone acting under color of state law. Paige conceded

that her state-law claims against the Port Authority were barred, but otherwise opposed

the motion.

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In February 2009, the district court granted the Port Authority’s motion to

dismiss. It dismissed the state-law claims against the Port Authority under Ohio

immunity law and the § 1983 claim against the Authority under federal law because

Paige had not demonstrated that the actions of Bunnell Hill in firing her were attributable

to the state. The court then sua sponte dismissed with prejudice all claims against both

Coyner and the Board for the same reasons, except that it declined to exercise

supplemental jurisdiction over the state-law claims against Coyner in her individual

capacity. These latter claims were dismissed without prejudice. Paige has timely

appealed.

II. ANALYSIS

A. Standard of review

When deciding a motion to dismiss under Rule 12(b)(6) of the Federal Rules of

Civil Procedure for failure to state a claim, the district court must construe the complaint

in the light most favorable to the plaintiff and must accept all the factual allegations

contained in the complaint as true. Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir.

2008). In order to survive a Rule 12(b)(6) motion to dismiss, Paige’s complaint need

contain only “enough facts to state a claim to relief that is plausible on its face.” See

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This court reviews de novo the

district court’s grant of such a motion. Lambert, 517 F.3d at 438-39.

B. Application of Blum v. Yaretsky

The crux of Paige’s § 1983 claim is that Coyner, the Port Authority, and the

Board retaliated against Paige for exercising her First Amendment rights by making false

statements to her employer with the intent of having Paige fired. In order to succeed on

a retaliation claim, a plaintiff such as Paige must establish the following elements:

(1) that the plaintiff was engaged in a constitutionally protected activity;

(2) that the defendant’s adverse action caused the plaintiff to suffer an

injury that would likely chill a person of ordinary firmness from

continuing to engage in that activity; and (3) that the adverse action was

No. 09-3287 Paige v. Coyner et al. Page 6

motivated at least in part as a response to the exercise of the plaintiff’s

constitutional rights.

Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998); see also id. at 682, 687 (holding that

a rape victim’s § 1983 claim against the local sheriff for releasing confidential and

personal details of her rape after she publicly criticized the sheriff’s handling of the case

could survive a Rule 12(b)(6) motion to dismiss).

There is, however, an additional requirement common to all § 1983 claims: “a

plaintiff must allege that [s]he was deprived of a right secured by the Federal

Constitution or laws of the United States by a person acting under color of state law.”

Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992) (emphasis added); see also

Romanski v. Detroit Entm’t, L.L.C., 428 F.3d 629, 636 (6th Cir. 2005) (“Section 1983

makes liable only those who, while acting under color of state law, deprive another of

a right secured by the Constitution or federal law.”). This so-called state-actor

requirement becomes particularly complicated in cases such as the present one where a

private party is involved in inflicting the alleged injury on the plaintiff.

Coyner, the Port Authority, and the Board do not dispute that they are state actors

with regard to their own actions. If, for example, the Port Authority had fired one of its

own employees as a result of the employee speaking at a public hearing, the state-actor

requirement would surely be met. Instead, they argue that they cannot be held legally

responsible for the actions of Bunnell Hill, a private employer, which ultimately inflicted

the harm on Paige. They contend, therefore, that the district court was correct in holding

that Paige needed to meet either the nexus test or the state-compulsion test laid out by

the Supreme Court in Blum v. Yaretsky, 457 U.S. 991, 1004-05 (1982), in order to

adequately plead state action.

In Blum, a class of nursing home residents sued the Commissioners of the New

York Department of Social Services and the Department of Health. They alleged that

the practice by various private nursing homes of transferring residents to facilities with

lower levels of care without giving the residents an opportunity to challenge the decision

violated the residents’ constitutional right to the due process of law. The plaintiffs

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sought to hold the state defendants liable because the nursing homes were state-

regulated. Even though Blum was a Fourteenth Amendment case, as opposed to an

action brought under § 1983, the Court employed an identical analysis to determine

whether the state-action requirement was satisfied. Id. at 1009 n.20. The analysis is the

same because the Fourteenth Amendment prohibits only states (as opposed to private

entities) from depriving individuals of due process. Id. at 1002-03; see also Lugar v.

Edmondson Oil Co., 457 U.S. 922, 929 (1982) (explaining that the “under color of state

law” requirement for § 1983 is the same as the “state action” requirement of the

Fourteenth Amendment).

The Supreme Court in Blum described the residents’ suit as one that “seeks to

hold state officials liable for the actions of private parties” and ultimately concluded that

the state-action requirement was not satisfied. Blum, 457 U.S. at 1003. It used three

tests to determine whether the actions of the nursing homes should be attributed to the

state. First, where “there is a sufficiently close nexus between the State and the

challenged action of the regulated entity[,] . . . the action of the latter may be fairly

treated as that of the State itself.” Id. at 1004 (citation omitted). The nexus test assures

that “constitutional standards are invoked only when it can be said that the State is

responsible for the specific conduct of which the plaintiff complains.” Id. (emphasis in

original). Second, “a State normally can be held responsible for a private decision only

when it has exercised coercive power or has provided such significant encouragement,

either overt or covert, that the choice must in law be deemed to be that of the State.” Id.

This is the so-called state-compulsion test. Finally, state action will likely be present if

“the private entity has exercised powers that are traditionally the exclusive prerogative

of the State.” Id. at 1005 (citation and internal quotation marks omitted).

None of these tests were satisfied in Blum because the decisions to transfer

residents were solely “medical judgments made by private parties according to

professional standards that are not established by the State.” Id. at 1008. For the

purposes of the instant case, we note that the Court undertook this state-action analysis

in Blum even though the suit was against state officials who would typically be

No. 09-3287 Paige v. Coyner et al. Page 8

considered state actors if they had taken the challenged actions themselves. The Court

was clear, however, that the residents were “challenging decisions by the nursing homes

in which they reside to discharge or transfer patients without notice or an opportunity

for a hearing” and not “particular state regulations or procedures.” Id. at 993, 1003.

Furthermore, the residents’ “arguments concede[d] that the decision to discharge or

transfer a patient originates not with state officials, but with nursing homes that are

privately owned and operated.” Id. at 1003 (emphasis added).

The district court in the case before us applied the nexus and state-compulsion

tests from Blum to conclude that Paige had not alleged any state action by Bunnell Hill,

her employer. Paige contends, however, that Blum does not apply to retaliation cases

such as hers where the suit is solely against state officials and where the officials

themselves took the action that allegedly violated constitutionally protected rights. That

is, Paige does not argue that Bunnell Hill was a state actor or that its action in firing her

should be attributed to the state, but that Coyner, as a state actor, violated Paige’s rights

when Coyner called Bunnell Hill and gave false information in retaliation for Pagie’s

comments at the Port Authority hearing.

Blum turned not on who was sued—i.e., whether the named defendant was a

public official or a private entity—but on who took the constitutionally impermissible

action. In Blum, the action that allegedly deprived the residents of their constitutional

rights was the private nursing homes’ transferring residents without due process—an

action taken by private parties. The Court in Blum therefore had to determine whether

that action could be attributed to the state. Here, Paige alleges that Coyner’s phone call

giving the false statements to her employer was the state action taken in retaliation for

Paige’s exercise of her First Amendment rights. Blum is therefore distinguishable from

the instant case.

This court has previously applied the Blum tests only where a § 1983 action was

brought against a private entity. See, e.g., Campbell v. PMI Food Equip. Group, Inc.,

509 F.3d 776, 779, 783-84 (6th Cir. 2007) (manufacturing plant); Lansing v. City of

Memphis, 202 F.3d 821, 825, 828-34 (6th Cir. 2000) (nonprofit festival organizer);

No. 09-3287 Paige v. Coyner et al. Page 9

Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 180 F.3d 758, 762 (6th Cir.

1999) (private, voluntary athletic association), rev’d on other grounds, 531 U.S. 288

(2001); Adams v. Vandemark, 855 F.2d 312, 313-14 (6th Cir. 1988) (nonprofit

development corporation); Crowder v. Conlan, 740 F.2d 447, 449-50 (6th Cir. 1984)

(private hospital).

Indeed, this court has described Blum as “defin[ing] the contours of the state

action doctrine with respect to nominally private parties.” Brentwood Acad., 180 F.3d

at 762 (explaining that Blum “reviewed a challenge to a private nursing home’s transfer

and discharge policy” and concluded that “the nursing home was not a state actor”

because “being subject to state regulation does not by itself convert the actions of a

private organization into state action”); see also Bier v. Fleming, 717 F.2d 308, 310-11

(6th Cir. 1983) (stating that the party charged in a § 1983 case “must be a state official,

or he must have acted together with or received significant aid from state officials”

(emphasis added)).

Because the state actors in Blum took no action themselves, the Supreme Court

necessarily had to determine whether the state should be obligated to shoulder the blame

for solely private action. Here, the state actor (Coyner) initiated the entire chain of

events. And, as discussed in more detail below, Coyner will be potentially liable for the

result of that chain of events—Paige’s firing—only if that result was a reasonably

foreseeable consequence of Coyner’s phone call. See Powers v. Hamilton County Pub.

Defender Comm’n, 501 F.3d 592, 609 (6th Cir. 2007) (holding that a state action in a

§ 1983 claim is liable for the reasonably foreseeable consequences of his conduct).

Coyner could thus be liable not because the firing itself was state action, but because a

jury might find that the firing was a reasonably foreseeable consequence of the action

taken by Coyner. In other words, once there has been state action (here, the phone call),

the proper test for the scope of responsibility for events flowing from that action is

reasonable foreseeability, not how close the nexus is between the private actors and the

state actors.

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The district court thus erred in applying Blum to the instant case and by framing

the issue as whether Bunnell Hill’s actions in firing Paige could be fairly attributed to

the state. Blum’s tests are limited to suits where the private party is the one allegedly

responsible for taking the constitutionally impermissible action. Here, Coyner is clearly

a state actor because she works on behalf of local government entities, and Paige

contends that Coyner violated § 1983 when Coyner called Bunnell Hill and made false

statements in retaliation for Paige’s criticism of the proposed interstate project. Paige

has therefore properly alleged state action.

C. Elements of a First Amendment retaliation claim

Moving now to the heart of Paige’s § 1983 cause of action, we must determine

whether Paige’s complaint alleges sufficient facts that, taken as true for the purposes of

Rule 12(b)(6), would satisfy the three elements required to establish a First Amendment

retaliation claim. These three elements are analyzed in detail below.

1. Constitutionally protected activity

In order to succeed on a retaliation claim, a plaintiff must first allege that she

“was engaged in a constitutionally protected activity.” Bloch v. Ribar, 156 F.3d 673,

678 (6th Cir. 1998). Paige contends that she engaged in protected activity by attending

the Port Authority hearing and voicing her opinion concerning a proposed interstate

project. The First Amendment clearly protects the right to speak publicly about such

matters. See Glasson v. City of Louisville, 518 F.2d 899, 904 (6th Cir. 1975) (noting that

“freedom of expression upon public questions is secured by the First Amendment”).

Paige has thus stated sufficient facts to satisfy the first element of Bloch.

2. Adverse action

Next, a plaintiff must allege that “the defendant’s adverse action caused the

plaintiff to suffer an injury that would likely chill a person of ordinary firmness from

continuing to engage in that activity.” Bloch, 156 F.3d at 678. As discussed above,

Paige contends that, by calling her employer and making false statements regarding

Paige’s public speech, Coyner took an adverse action against her. The injury that Paige

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alleges was caused by this adverse action was her termination from Bunnell Hill.

Losing one’s job and accompanying benefits is certainly severe enough to deter a person

of ordinary firmness from speaking at public meetings. See Harris v. Bornhorst, 513

F.3d 503, 519 (6th Cir. 2008) (holding that the adverse action element was met because

the state official “actually prevented [the § 1983 plaintiff] from securing the career he

wants,” and that “[a] more effective deterrent is difficult to imagine”).

The second part of this element—causation—is the closest issue in the case. To

survive a motion to dismiss, Paige’s allegations must plausibly establish that Coyner is

legally responsible for Paige losing her job. This requires Paige to establish both cause

in fact and proximate cause. See Powers, 501 F.3d at 608 (“Traditional tort concepts of

causation inform the causation inquiry on a § 1983 claim.”).

“Cause in fact is typically assessed using the ‘but for’ test, which requires us to

imagine whether the harm would have occurred if the defendant had behaved other than

it did.” Id. Bunnell Hill had been aware of Paige’s various civic activities, including

attending meetings and expressing opinions about development projects in Warren

County, but had never previously objected. Paige had been employed by Bunnell Hill

for over five years. Most importantly, Bunnell Hill specifically cited the information

relayed in Coyner’s call as a reason for terminating Paige. The temporal proximity

between Coyner’s allegedly retaliatory call and Paige’s termination also suggests that,

but for the call, Paige would have remained employed by Bunnell Hill. Paige has

therefore alleged sufficient facts to establish as plausible that, but for Coyner’s call, she

would not have been terminated by Bunnell Hill.

Turning now to proximate cause, we have explained that the concept deals with

determining the proper scope of responsibility:

[C]ourts have framed the § 1983 proximate-cause question as a matter of

foreseeability, asking whether it was reasonably foreseeable that the

complained of harm would befall the § 1983 plaintiff as a result of the

defendant’s conduct. Even if an intervening third party is the immediate

trigger for plaintiff’s injury, the defendant may still be proximately

liable, provided that the third party’s actions were foreseeable.

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Id. at 609. Under Powers, Bunnell Hill’s intervening act of terminating Paige’s

employment does not relieve Coyner of liability if Coyner reasonably should have

foreseen that the company would fire Paige as a result of the call. See id. (holding that

the chain of causation in a § 1983 suit against a public defender for his failure to move

for an indigency hearing was not broken by the judge’s failure to hold such a hearing sua

sponte); Kerman v. City of New York, 374 F.3d 93, 126-28 (2d Cir. 2004) (holding that

a hospital’s decision to admit the plaintiff for psychiatric observation did not break the

chain of causation in a § 1983 suit against the police officer who took him there);

Warner v. Orange County Dep’t of Prob., 115 F.3d 1068, 1074 (2d Cir. 1997) (holding

that the acts of Alcoholics Anonymous (AA) in offering religious content and the acts

of the sentencing judge in imposing attendance at AA meetings as a condition of

probation did not break the chain of causation in a § 1983 suit against the probation

department that recommended the attendance at such meetings as a probationary

condition).

The case most directly on point in this circuit is Harris v. Bornhorst, 513 F.3d

503 (6th Cir. 2008). Harris had been convicted of murder, but the conviction was

ultimately reversed on appeal. He then brought suit against the prosecutor and the

county for malicious prosecution and other claims. After the suit was filed, Harris

sought enlistment in the Marine Corps. When the Marine Corps contacted the

prosecutor to inquire about Harris’s murder conviction, the prosecutor said that the

conviction was reversed only because of a technicality and specifically mentioned

Harris’s malicious prosecution suit. The Marine Corps subsequently declined to enlist

Harris. Harris then added a § 1983 claim to his lawsuit, alleging that the prosecutor had

retaliated against him for exercising his constitutional right to bring the original suit.

The right to seek redress in court is a protected activity under the First Amendment. See

id. at 518-19.

This court reversed the district court’s grant of summary judgment in favor of the

defendants on the First Amendment retaliation claim and remanded the case for further

proceedings. Id. at 520, 523. Even though the Marine Corps was the intervening actor

No. 09-3287 Paige v. Coyner et al. Page 13

taking the action that harmed Harris, the court accepted for summary judgment purposes

the allegation that the prosecutor’s comments to the recruiter had caused Harris’s injury.

Id. at 519. The facts in the instant case are strikingly similar. Although Bunnell Hill

took the action that ultimately injured Paige, this will not absolve Coyner of liability if

such a result was a reasonably foreseeable consequence of Coyner’s call to Bunnell Hill.

See Powers, 501 F.3d at 609.

Paige alleges that Coyner intended for Paige to lose her job when Coyner made

the phone call. Similarly, Paige alleges that Coyner knew that Bunnell Hill, as a

developer active in Warren County, would not want to jeopardize its working

relationship with Warren County officials. If Coyner’s goal was to have Paige fired

from Bunnell Hill, a jury could find that such a result was reasonably foreseeable. See

Kerman, 374 F.3d at 127 (“[F]oreseeability is normally an issue of fact . . . .”). Paige

has thus alleged sufficient facts on proximate cause at this early stage of the proceedings

to satisfy the second element of Bloch and to avoid the dismissal of her complaint as a

matter of law.

3. Retaliatory motive

The final element of a First Amendment retaliation claim requires the plaintiff

to show that “the adverse action was motivated at least in part as a response to the

exercise of the plaintiff’s constitutional rights.” Bloch, 156 F.3d at 678. A defendant’s

motivation for taking action against the plaintiff is usually a matter best suited for the

jury. Harris, 513 F.3d at 519-20. And Paige alleges several facts that would allow a

jury to find that Coyner was motivated at least in part by Paige’s comments criticizing

the proposed interstate project. For example, Coyner had a personal interest in the

project because it was one of the first major projects that she was in charge of as the

Director of the Warren County Office of Economic Development. Coyner also had a

visibly negative reaction to Paige’s critical comments during the Port Authority hearing.

Finally, one could reasonably infer from the fact that Coyner made allegedly false

statements about Paige’s speech during the call to Bunnell Hill that Coyner was acting

with a retaliatory motive.

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Proof of Coyner’s retaliatory motive may also arise from the fact that she called

Paige’s employer only one week after Paige spoke at the hearing. Temporal proximity

between the protected conduct and the adverse action by the state actor “alone may be

significant enough to constitute indirect evidence . . . to create an inference of retaliatory

motive.” Muhammad v. Close, 379 F.3d 413, 417-18 (6th Cir. 2004) (citation and

internal quotation marks omitted) (holding that on remand the district court should

consider whether the temporal proximity between an inmate’s grievances against a

prison officer and that officer’s charges against the inmate alone could create a genuine

issue of material fact that the officer was acting with a retaliatory motive when he

brought the charges against the inmate).

Coyner is of course free to rebut these allegations on summary judgment or at

trial by establishing that she was motivated by any number of nonretaliatory goals. In

Worrell v. Henry, 219 F.3d 1197 (10th Cir. 2000), for example, the court suggested that

public officials who were being sued in a First Amendment retaliation case after they

pressured the district attorney to not hire a person who had previously testified for the

defense in an important criminal case could be motivated by a desire to “provide[]

effective law enforcement” rather than retaliating against the plaintiff for his testimony.

Id. at 1213.

Similarly, Coyner could have been motivated purely by business concerns rather

than a desire to punish Paige for speaking out negatively against one of Coyner’s

proposed projects. She might have simply wanted to ensure that Bunnell Hill would

adequately perform if it were awarded any development contracts or, more generally,

that Bunnell Hill was fully behind the Port Authority and the Board’s goals of

developing the area. In this way, Paige might have just been doing her job—i.e.,

directing development in the area. But because Paige’s complaint alleges facts that, if

taken as true, could establish that Coyner was acting with a retaliatory motive, Paige has

satisfied the third and final element of Bloch. She has therefore alleged sufficient facts

to have her complaint survive a Rule 12(b)(6) motion to dismiss.

No. 09-3287 Paige v. Coyner et al. Page 15

This is not to say that public officials lack the right to inquire into the

motivations and goals of their colleagues or constituents. What they cannot do,

however, is take action in order to punish a citizen for exercising his or her constitutional

rights. That is, “an act taken in retaliation for the exercise of a constitutionally protected

right is actionable under § 1983 even if the act, when taken for a different reason, would

have been proper.” Bloch, 156 F.3d at 681-82 (citation and internal alteration omitted).

Thus, although Coyner’s call to Bunnell Hill would be proper if prompted by purely

business or governmental concerns, it would run afoul of § 1983 if prompted by

retaliatory motives.

D. Liability of the Port Authority and the Board of Commissioners

The final issue on appeal concerns the potential liability of the Port Authority and

the Board of Commissioners. They argue that Paige’s retaliation claim against them

should be dismissed as a matter of law because Paige did not allege that Coyner acted

according to an unconstitutional policy or custom when she called Bunnell Hill. “[A]

local government may not be sued under § 1983 for an injury inflicted solely by its

employees or agents. Instead, it is when execution of a government’s policy or custom

. . . inflicts the injury that the government as an entity is responsible under § 1983.”

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).

A § 1983 plaintiff seeking to hold a municipality liable must therefore allege that

the particular injury complained of flowed from the execution of the municipality’s

policy or custom. Garner v. Memphis Police Dep’t, 8 F.3d 358, 361, 363-64 (6th Cir.

1993). But policy or custom does not have to be written law; it can be created “by those

whose edicts or acts may fairly be said to represent official policy.” Monell, 436 U.S.

at 694; see also Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986) (“[M]unicipal

liability under § 1983 attaches where—and only where—a deliberate choice to follow

a course of action is made from among various alternatives by the official or officials

responsible for establishing final policy with respect to the subject matter in question.”).

Moreover, the alleged adverse action need not be part of a pattern because “municipal

liability may be imposed for a single decision by municipal policymakers.” Pembaur,

No. 09-3287 Paige v. Coyner et al. Page 16

475 U.S. at 480 (holding that a county prosecutor’s action in ordering deputy sheriffs to

enter a business establishment in violation of the Fourth Amendment was sufficient to

impose municipal liability on the county under § 1983 because the prosecutor was acting

as the final decisionmaker for the county).

Paige’s complaint alleges that Coyner “acted pursuant to the official policies of

Defendants Warren County Board of Commissioners and Warren County Port Authority

in that Defendant Coyner has final policy making authority” for those entities. Under

Monell and Pembaur, Coyner’s authority to create policy for the Board and the Port

Authority means that her actions can represent official policy. Although this factual

issue will need to be resolved at summary judgment or at trial, Paige’s allegation is

sufficient to meet the requirements of Monell at the pleading stage of this case.

In sum, Paige has alleged all that she needs to in order to state a claim for relief

under § 1983 against all three defendants: state action by Coyner, the three elements of

a First Amendment retaliation claim, and a policy or custom by the Port Authority and

the Board. There undoubtedly remain many close factual questions that will need to be

resolved by a judge or jury on remand. In her complaint, however, Paige has alleged

sufficient facts to state a § 1983 claim against all three defendants that “is plausible on

its face.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The district court

thus erred in dismissing her claims under Rule 12(b)(6) by misapplying the Supreme

Court’s decision in Blum v. Yaretsky, 457 U.S. 991 (1982).

III. CONCLUSION

For all of the reasons set forth above, we REVERSE the judgment of the district

court and REMAND the case for further proceedings consistent with this opinion.

No. 09-3287 Paige v. Coyner et al. Page 17

________________________

CONCURRENCE

________________________

BOGGS, Circuit Judge, concurring. I agree with the conclusion of my fellow

judges that, under our circuit’s precedent, this case must be remanded for further

consideration, as Paige’s complaint should not have been dismissed at the Rule 12 (b)(6)

stage, especially given the stringent standard for such a dismissal. I generally agree with

Judge Gilman’s analysis of our proper procedure under Blum v. Yaretsky, rather than

Judge McCalla’s view.

I write separately primarily to indicate that I believe that it remains rather

problematic whether our retaliation analysis in Bloch v. Ribar, 156 F.3d 673 (6th Cir.

1998), could survive a searching analysis under First Amendment doctrine. By that, I

mean that the three elements of a cause of action for First Amendment retaliation, as

properly set out by Judge Gilman, ante, at 10-15, are wholly congruent with the

following situation being an actionable tort:

1. Person A makes some silly and outrageous statement;

2. Person B, who is a state actor, publicly blasts Person A, causing

third parties to realize that Person A is a chowderhead and take action

against that person; and

3. Person B’s speech was a response to Person A’s speech.

When put that starkly, without qualification – which is what Bloch itself seems

to do – the First Amendment implications should be somewhat obvious. See Bloch, 156

F.3d at 681-82 (“[A]n act taken [at least in part as a response to] the exercise of a

constitutionally protected right is actionable under § 1983 even if the act, when taken for

a different reason, would have been proper.”) (quoting Matzker v. Herr, 748 F.2d 1142,

1150 (7th Cir. 1984)).

No. 09-3287 Paige v. Coyner et al. Page 18

To make it less abstract, let us take this wholly hypothetical example: the dean

of a public law school discovers one morning that one of her students has, in a private

e-mail, said something that could be construed as racist. The dean issues a public

statement condemning the student (perhaps characterizing the e-mail falsely, perhaps

not)1 which causes the student to lose a previously promised position as a law clerk or

law-firm associate. And, of course, the dean’s attack was motivated by the student’s

speech. In such a hypothetical situation, it would appear that Bloch would make the

dean potentially liable for damages under § 1983 and would, at the very least, allow

litigation against the dean to proceed past the Rule 12(b)(6) stage.

However, since this does appear to be the state of our circuit’s law at this point,

I concur in Judge Gilman’s opinion and in the judgment of the court, and leave such

potential problems to be sorted out in the first instance upon remand.

1

I note that another recent decision of this court analyzes a claim similar to the one in this case

without requiring that the purportedly actionable speech be false or defamatory – merely that it “threaten

[the plaintiff’s] economic livelihood directly or indirectly.” Fritz v. Charter Twp. of Comstock, 592 F.3d

718, 724 (6th Cir. 2010).

No. 09-3287 Paige v. Coyner et al. Page 19

_______________________________________

CONCURRING IN THE JUDGMENT

_______________________________________

McCALLA, Chief District Judge, concurring. The majority correctly determined

that Paige’s complaint alleged sufficient facts that satisfy the three elements required to

establish a § 1983 retaliation claim. See Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir.

1998). Additionally, the majority correctly concluded that Paige properly alleged that

she was deprived of a right “secured by the Constitution or laws of the United States”

and that the deprivation was committed by an individual acting “under the color of state

law.” See Wolotksy v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992). Thus, I concur in the

judgment of the majority opinion. I write separately because I believe that Plaintiff

satisfied the under-color-of-state-law requirement by meeting the state compulsion test

from Blum v. Yarestsky, 457 U.S. 991 (1982).

The Supreme Court has stated that “[l]ike the state-action requirement of the

Fourteenth Amendment, the under-color-of-state-law element of § 1983 excludes from

its reach merely private conduct, no matter how discriminatory or wrongful.” Am. Mfrs.

Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999) (quoting Blum, 457 U.S. at 1002)

(internal quotations omitted). “The purpose of this requirement is to assure that

constitutional standards are invoked only when it can be said that the State is responsible

for the specific conduct of which the plaintiff complains.” Blum, 457 U.S. at 1004. The

majority determined that it was not necessary to undertake a Blum analysis because it

found that Coyner’s phone call to her employer, by itself, was sufficient state action to

satisfy the under-color-of-state-law element of Paige’s § 1983 claim.

I would agree with the majority’s conclusion regarding the application of Blum

had Paige not sought damages for her loss of employment. “Faithful adherence to the

‘state action’ requirement . . . requires careful attention to the gravamen of the plaintiff’s

complaint.” See Blum, 457 U.S. at 1003. In her complaint, Plaintiff specifically seeks

damages that directly and proximately resulted from her loss of employment. It is

undisputed that Plaintiff was ultimately terminated by Bunnell Hill, her private

No. 09-3287 Paige v. Coyner et al. Page 20

employer. Thus, Paige is seeking to hold state actors liable for the actions of a private

employer. See Blum, 457 U.S. at 1003 (“The importance of [the state action

requirement] is evident when, as in this case, the complaining party seeks to hold the

State liable for the actions of private parties.”). Although Bunnell Hill’s intervening act

of terminating Paige’s employment does not relieve Defendants of liability for her

§ 1983 retaliation claim, Paige must nonetheless undertake a Blum analysis to determine

if her alleged injury is properly attributable to Defendants state actors.

A finding that Blum applies to the instant case does not end the inquiry. Paige

must still demonstrate that she pled facts sufficient to support a finding of state action

under the Blum state compulsion test. The state compulsion test requires that a state

actor has “exercised such coercive power or has provided such significant

encouragement, either overt or covert, that the choice must in law be deemed that of the

State.” Blum, 457 U.S. at 1004. The district court, in granting Defendants’ motion to

dismiss, relied on German v. Fox, 267 F. App’x 231 (4th Cir. 2008). In German, the

Fourth Circuit held that “when the state has coerced a private party to commit an act that

would be unconstitutional if done by the state, it means that the state has ordered specific

conduct.” Id. at 234 (citing Andrews v. Fed. Home Loan Bank, 998 F.2d 214, 217 (4th

Cir. 1993)). Because Paige did not allege that Coyner directly ordered Plaintiff’s

termination or otherwise threaten the Port Authority’s relationship with Bunnell Hill, the

district court found that the allegations in Paige’s complaint were not sufficient the meet

the state compulsion test.

Neither Blum nor Sixth Circuit precedent requires that the state actor’s conduct

rise to the level of a direct order. Rather, the state compulsion test requires only that the

state exercise “such coercive power or provide such significant encouragement, either

over or covert, that in law the choice of the private actor is deemed to be that of the

state.” Wolotsky, 960 F.2d at 1335 (citing, inter alia, Blum, 457 U.S. at 1004). In her

complaint, Plaintiff alleged that Bunnell Hill had a “close working relationship with key

Warren County Officials . . . that it did not want to jeopardize.” Paige also alleged that

Coyner’s retaliatory phone call to Bunnell Hill sought clarification of Bunnell Hill’s

No. 09-3287 Paige v. Coyner et al. Page 21

“commitment to development in the region.” Taking these allegations as true, I would

find that Coyner exercised sufficient coercive power upon Bunnell Hill to trigger state

actor status under the state compulsion test.