holding that county officials who sent cease-and-desist letters to the plaintiffs “did not act out of a state-imposed duty. Rather, they were motivated to safeguard their personal reputations.”
How later courts described this case
- holding that county officials who sent cease-and-desist letters to the plaintiffs “did not act out of a state-imposed duty. Rather, they were motivated to safeguard their personal reputations.”
- when “the ‘nature of the act performed’ was ‘functionally equivalent to that of any private citizen,’” a public official did not act under color of state law (quoting Redding v. St. Eward, 241 F.3d 530, 533 (6th Cir.2001))
- Because any person may hire a private attorney to threaten private legal action, it cannot be said that the letter was possible only because [the Defendants] were clothed with the authority of state law”
- extending the requirement to regulatory-enforcement proceedings against the plaintiff
Written by the judges who cited it.
The opinion
KAREN NELSON MOORE, Circuit Judge,
dissenting in part.
I agree with the majority’s conclusion that the Meadowses have established a prima facie case of First Amendment retaliation. They have shown constitutionally protected speech or conduct, adverse action by defendants, and a causal connection, ie., “the adverse action was motivated at least in part by [the] protected conduct.” Dye v. Office of the Racing Comm’n, 702 F.3d 286, 294 (6th Cir.2012) (internal quotation marks omitted).
I differ from the majority with respect to the next analytical step. The law is *508 clear that “[i]f the plaintiff establishes this prima facie case, the defendants can avoid liability by showing that they would have taken the same action even in the absence of the protected conduct.” Wenk v. O’Reilly, 783 F.3d 585, 593 (6th Cir.2015) (internal quotation marks and alteration omitted). Then “summary judgment is warranted if, in light of the evidence viewed in the light most favorable to the plaintiff, no reasonable juror could fail to return a verdict for the defendant.” Dye, 702 F.3d at 294-95 (internal quotation marks omitted).
Here, the Meadowses have produced sufficient evidence from which a reasonable jury could conclude that Enyeart and Migliozzi retaliated against the Meadowses at least in part because of their protected activity, by subjecting Berry Meadows to a civil permit-review hearing that delayed his permit’s renewal and then by halting the hearing mid-stream. The Meadowses produced evidence that not only did Enyeart halt the permit-review hearing, but also the hearing administrator actually found (1) that the Notice of Violation did not provide the Meadowses with sufficient notice of the alleged violations, R. 95-1 at 33-34 (Hr’g Officer’s Report) (Page ID # 1841-42); (2) that “the Board presented no evidence to prove the allegations” in the Notice of Violation, id. at 35 (Page ID # 1843); (3) that the Board had not provided the Meadowses with an “opportunity to testify at the Hearing,” id. at 34 (Page ID #1842); and (4) “that the failure to permit [the Meadowses] to present testimony and documentary evidence at this Hearing was a denial of due process, in violation of their rights to a fair hearing under federal and Ohio law,” id. at 36 (Page ID # 1844). Under these circumstances there is a genuine issue of material fact whether Defendants would have undertaken the same actions absent the Meadowses’ protected activity. Therefore, I would affirm the district court’s denial of qualified immunity regarding the First Amendment retaliation claim based upon Defendants subjecting Berry Meadows to a civil administrative hearing that delayed his permit’s renewal. 1
. This particular claim does not involve a criminal prosecution, so probable cause is not the pertinent standard. See Hartman v. Moore, 547 U.S. 250, 265-66 , 126 S.Ct. 1695 , 164 L.Ed.2d 441 (2006) (applying probable-cause analysis when addressing claim that criminal prosecution was retaliatory).