Opinion
Civil No. 1:00CV89
June 13, 2001
MEMORANDUM AND ORDER
THIS MATTER is before the Court on Plaintiffs' timely filed objections to the Memorandum and Recommendation of United States Magistrate Judge Max 0. Cogburn, Jr. Pursuant to standing orders of designation and 28 U.S.C. § 636, this Court referred Defendants' motion for summary judgment to the Magistrate Judge for a recommendation as to disposition. Having conducted a de novo review of the Magistrate Judge's recommendation, the Court grants Defendants' motion.
I. FACTUAL BACKGROUND
A. Parties
Plaintiffs Leonard and Kasey Cottom ("the Cottoms") operate and are the principal shareholders of Ski Hawksnest, Inc., and Hawksnest Food and Beverage, Inc. (collectively "Hawksnest"). Amended Complaint, ¶¶ 1-2. Hawksnest Food and Beverage operates a restaurant and lounge which is located on the premises and caters to the guests of Ski Hawksnest, a ski resort. Id. ¶¶ 7, 9-10. The Cottoms reside and Hawksnest is located in the Town of Seven Devils ("Seven Devils") within Avery County, North Carolina. Id. ¶¶ 1-2, 7.
Defendant Joe Ray Buchanan, Sr., the police chief of Seven Devils, and is being sued by Plaintiffs both in his individual and official capacities. Id. ¶ 5. Defendant Yardy Williams is the Mayor of Seven Devils, and is being sued only in his official capacity. Id. ¶ 4. Finally, Plaintiffs are seeking to impose municipal liability upon the Town of Seven Devils. Id. ¶ 3.
Joe Ray Buchanan, Jr., the son of Defendant Joe Ray Buchanan, Sr., remains listed as a named party to this lawsuit even after this Court dismissed Buchanan, Jr., as a party, and afforded Plaintiffs an opportunity to amend their complaint, at least in part, to reflect as much. See Memorandum and Order of Dismissal, filed August 23, 2000. Indeed, not only is Buchanan, Jr., still a named party, but Plaintiffs continue to allege his participation in various purportedly illegal acts. As "all of Plaintiff's claims against [Defendant Joe Ray Buchanan, Jr.] [were] dismissed in their entirety[,]" as of August 23, 2000, it should be abundantly clear that Plaintiffs may not continue to allege that Buchanan, Jr., is liable for alleged constitutional violations. See id., at 2. Query why Plaintiffs have neglected to properly amend their complaint to reflect this Court's Order dismissing their claims against Buchanan, Jr.
While there are two other ski resorts located in the general area, Hawksnest is the only ski resort located in Seven Devils; thus, it is the only ski resort routinely patrolled by the Seven Devils Police Department. See id. ¶¶ 10-12. Hawksnest attracts a diverse clientele, though a large percentage of their visitors are students from local colleges. Id. ¶ 13. Indeed, Hawksnest targets the student clientele by offering a special "Nighthawk" ski package with discount rates for night skiing which lasts until 2 a.m. Id . Labeled both Seven Devils Road and Skyland Drive (hereinafter "Skyland Drive"), Skyland Drive is the only means of ingress and egress to and from Hawksnest. Id. ¶ 14. Skyland Drive is located within Seven Devils and is routinely patrolled by the Seven Devils Police Department. Id. ¶¶ 14-15.
B. Spring Thaw Out Party
On April 26, 1997, a charity event known as the "Spring Thaw Out Party" was held at Hawksnest. Id. ¶ 17. Prior to 1997, the party had been held at the Horn of the West; in response to complaints from residents regarding the rowdy and drunken behavior of attendees in previous years, the Horn of the West declined to host the party in 1997. See Jennifer Bent, A day of music and fun for a good cause, Watuga Democrat, April 30, 1997, attached to Brief in Support of Defendants' Motion for Summary Judgment; Deposition of Arthur F. Wood, at 9-10. The party was organized by student-fraternity members from Appalachian State University, and the proceeds of the party were to benefit the charitable organization Oasis. Amended Complaint, ¶ 17; Deposition of Kasey Cottom, at 9-10. Prior to the date of the party, the Cottoms met with Chief Buchanan, among others, to discuss security and law enforcement concerns. Amended Complaint, ¶ 17. It was agreed that undercover agents from the North Carolina Alcohol Law Enforcement Division ("ALE") would be present; the parties disagree over whether an agreement was reached with regard to the presence of uniformed members of the Seven Devils Police Department. Compare id . ¶ 18 with Deposition of Joe Ray Buchanan, Sr., at 53-54 and Deposition of Mark Clinton Phillips, at 16-18. In addition to non-alcoholic beverages and food, at least six kegs of beer and assorted canned beer were provided by Plaintiffs for sale at the party. See Deposition of Shirley Diane Wood, at 23; Deposition of Leonard Cottom, at 19; Deposition of Arthur F. Wood, at 15.
Plaintiffs allege that "the Buchanans inexplicably told the Cottoms that they were never going to have another party like this at the resort." Amended Complaint, ¶ 18. However, the only evidence proffered by Plaintiffs in support of this allegation shows that, if anyone, it was an ALE officer who made this statement. Deposition of Shirley Diane Wood, at 19 ("[T]he ALE man told me that this would be the last one they'd want to have up there after, you know, they got done with it."). As Plaintiffs know, the ALE and the Seven Devils police are distinct and autonomous law enforcement agencies. See id . None of the Defendants in this case are ALE officers or have any authority over ALE officers. Thus, this allegation is wholly immaterial to the charges brought by Plaintiffs.
Though Leonard Cottom is reported to have described the party as "a very successful event," see Jennifer Bent, A day of music and fun for a good cause, Watauga Democrat, supra, the Cottoms assert that the Seven Devils police caused a disruption at the party. Amended Complaint, ¶ 19. Plaintiffs complain that the police "spent the majority of the party interrogating and ticketing various guest at the charity event." Id . Specific activities allegedly undertaken by the police at the Spring Thaw Out Party include conducting patrols (on foot) through the party; visual and olfactory inspections of beverages; and harassment of women. See Deposition of Kasey Cottom, at 17-18. The harassment of women allegations stem from Kasey Cottom's "feeling that [the police] were looking down a girl's shirt" and her purported observation of an unidentified Seven Devils police officer making masturbatory hand gestures in reference to female party-goers during the course of a conversation he was having with a member of another law enforcement agency. Id . at 15-16, 18.
The party was ended by Plaintiffs after they received their third citation from ALE officers. Deposition of Shirley Diane Wood, at 20. As a result of the citations issued to Plaintiffs at the Spring Thaw Out Party, Plaintiffs' ABC license was suspended for fifteen days. See Exhibit E, November 14, 1997, Amended Final Agency Decision, attached to Response to Defendants' Motion to Compel; but see Deposition of Leonard Cottom, at 29 (stating that ABC license was "originally suspended for ten days.").
Plaintiffs also allege that they were the victims of police harassment at their 1998 New Year's Eve party. At the 1998 party, Plaintiffs allege that Joe Ray Buchanan, Jr., and other ALE officers harassed Plaintiff and their guests. See Amended Complaint, ¶¶ 21-27. However, as noted, supra, n. 1, Joe Ray Buchanan, Jr. is no longer a party to this lawsuit; nor is any other ALE agent or supervisor. Thus, Plaintiffs allegations concerning the 1998 New Year's Eve party are wholly irrelevant to the case at bar.
Plaintiffs allege on information and belief that Chief Buchanan requested that the fire marshal inspect Hawksnest prior to the 1999 New Year's Eve party. Amended Complaint, ¶ 29. Chief Buchanan readily admits that he did in fact request the fire marshal inspect Hawksnest. Deposition of Joe Ray Buchanan, at 56-60. Chief Buchanan stated, under oath, that he did so because he had learned that Hawksnest did not have an occupancy rating set. Id . Buchanan was concerned that if anything were to happen at a crowded New Year's Eve party, the town might be liable for having failed to properly inspect the building. Id . at 56-58. The fire marshal conducted an inspection of Hawksnest, and found no code violations. Amended Complaint, ¶ 32.
Plaintiffs allege that members of the Seven Devils Police Department harassed them at the New Year's Eve party by conducting excessive patrols of the premises. Id . ¶¶ 33-34. Specific instances of alleged harassment include an incident where Leonard Cottom purportedly was shoved aside by an unidentified officer after Cottom had questioned his authority to be present; the positioning of several Seven Devils officers along with officers from other law enforcement agencies in a riot line" within the lounge; and the sudden departure of the Seven Devils police from Hawksnest, wherein, in the process of leaving, they knocked over two unidentified guests, thereby creating alarm and concern among the guests. Id . ¶¶ 34-35, 38. After the officers' sudden departure, Plaintiffs allege that their guests left, too, and many vowed not to return because the evening had been ruined by the police presence. Id . ¶ 39.
Here again Plaintiffs make several allegations solely related to the conduct of ALE officers. See id . ¶¶ 36-37, 40. As noted, supra, no officer, agent, or supervisor of the ALE is a named party to this lawsuit. Again, allegations concerning actions purportedly taken by ALE officers have no bearing on the merits of this case.
D. Press Releases
Upset with the events of New Year's Eve 1999, Plaintiffs issued a press release on January 3, 2000, complaining of the police's conduct. Id . ¶ 45. On January 13, 2000, Plaintiffs met with Mayor Williams, Chief Buchanan, Councilman Halpert, and Town Manager Gates to discuss the New Year's Eve party. Id . ¶ 46. Plaintiffs assert that Mayor Williams criticized them for issuing a press release condemning the police, and stated that he (the Mayor) would neither apologize for the police's conduct nor care if Hawksnest went out of business. Id . ¶ 47; but see Deposition of Yardy T. Williams, at 46-47 (denying that he made such statements). Chief Buchanan stated that the presence of his officers at the party constituted "routine patrol." Amended Complaint, ¶ 47.
In retaliation for Plaintiffs' complaints, the police purportedly harassed Plaintiffs and their guests.
[P]laintiffs are informed and believe and therefore allege that the Seven Devils Police Department, under the direction of Buchanan, Sr. and with the consent and ratification of Mayor Williams and Seven Devils, intensified patrols of the Ski Hawksnest parking lot, often exiting their vehicles to patrol the lot by foot, shinning their flashlights into all vehicles in the lot[;] . . . increased its stops of Ski Hawksnest's guests and employees traveling on Skyland Drive[;] . . . issued in excess of five hundred (500) warning tickets to travelers on Skyland Drive, the majority of which were issued to Ski Hawksnest's guests[;] . . . routinely followed vehicles leaving the resort at extremely close distances, tailgating these vehicles, only to stop them and conduct vehicle searches and sobriety tests of many of the vehicles and their passengers without probable cause to do so[;] . . . stopped Ski Hawksnest employees and guests exiting the lodge as well as visitors to the parking lot on various occasions, often interrogating the guests and employees, forcing drivers and passengers out of their vehicle [sic] and conducting searches of these employees, visitors and their vehicles while parked in the Ski Hawksnest parking lot[;] and[,] on at least one occasion used racial epithets when referring to a minority guest in the parking lot.Amended Complaint, ¶¶ 51-54, 56. In late February, while other local ski resorts were "enjoying one of the most profitable ski seasons in many years," Hawksnest was virtually deserted, "all because of the police misconduct and guests' fears that they would be subjected to such police misconduct." Id . ¶ 57.
E. Cause of Action
Plaintiffs allege that the above conduct constitutes a violation of their liberty and property rights guaranteed by the First, Fifth, and Fourteenth Amendments. Id . ¶ 62. Also, Plaintiffs allege that Chief Buchanan conspired with his son Joe Ray Buchanan, Jr., to force Plaintiffs out of business, and that said conspiracy was consented to and ratified by Mayor Williams and the Town of Seven Devils. Id . ¶ 63. Plaintiffs seek to recover for the infringement of their constitutional rights pursuant to 42 U.S.C. § 1983. Id . ¶ 66.
II. STANDARD OF REVIEW
Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "[W]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate." Teamsters Joint Council No. 83 v. Centra, Inc., 947 F.2d 115, 119 (4th Cir. 1991) (citations omitted). "[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial." Celotex, 477 U.S. at 322 . The "obligation of the nonmoving party is "particularly strong., when the nonmoving party bears the burden of proof'" Hughes v. Bedsole, 48 F.3d 1376, 1381 (4th Cir. 1995) (alterations omitted) (quoting Pachaly v. City of Lynchburg, 897 F.2d 723, 725 (4th Cir. 1990)). "Summary judgment is not `a disfavored procedural shortcut,' but an important mechanism for weeding out "claims and defenses [that] have no factual bases.'" Moore v. Brown, 215 F.3d 1320 (table), 2000 WL 691436, **4 (4th Cir. 2000) (quoting Celotex, 477 U.S. at 327).
While all evidence should be viewed in the light most favorable to the nonmoving party, see Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990), "any asserted inference which [plaintiffs] seek to draw must flow from the evidence, not merely from the . . . bald assertions of their pleadings." Long v. Chesapeake Ohio Ry. Co., 825 F.2d 407 (table), 1987 WL 38247, **2 (4th Cir. 1987) (citing Celotex, supra, and Ross v. Communication Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985)). "Mere speculation by the non-moving party cannot create a genuine issue of material fact." Cox v. County of Prince William, 249 F.3d 295, 299 (4th Cir. 2001) (citing Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985)). Conclusory averments made "upon information and belief' do not raise a dispute of material fact. See Toro Co. v. Krouse, Kern Co., Inc., 827 F.2d 155, 162 n. 3 (7th Cir. 1987); Giac Leasing Corp. v. Perper, 935 F.2d 1286 (table), 1991 WL 110369, **2 (4th Cir. 1991) ("Where the trumpet sounds so uncertain a note, neither the court below nor [an appellate] court is justified in accepting the conclusion which [plaintiffs] base on their `information and belief.'"). It follows, then, that an affidavit based only upon information and belief derived from a third party, which "does not represent the testimony of one who has personal knowledge of the essential facts[,]" "adds no weight to [a party's] position." Minnesota Mining Mfg. Co. v. U.S. Rubber Co., 279 F.2d 409, 415 (4th Cir. 1960); see also Sheinkopf v. Stone, 927 F.2d 1259, 1271 (1st Cir. 1991) ("It is apodictic than an affidavit . . . made upon information and belief . . . does not comply with Rule 56(e)." (citation and internal quotations omitted)).
III. DISCUSSION
A. Standing
The Magistrate Judge recommended that the Cottoms and Hawksnest Food and Beverage, Inc., be dismissed for lack of standing. Recognizing that only corporate entities, rather than individual shareholders, may sue on the behalf of the corporation, see, e.g. Zimmerman v. Bell, 800 F.2d 386, 390-91 (4th Cir. 1986), Plaintiffs do not object to the dismissal of the Cottoms. However, Plaintiffs do object to the dismissal of Hawksnest Food and Beverage, Inc., on the grounds that it has suffered damages resulting from Defendants' retaliatory and harassing conduct. See Plaintiffs' Objections, ¶ 1. The Court agrees that Hawksnest Food and Beverage, Inc., has standing inasmuch as it allegedly was injured, at least to the same extent as Ski Hawksnest, Inc., by the police presence and conduct inside the lounge, which is operated by Hawksnest Food and Beverage, Inc. See generally, Vermont Agency of Nat Resources v. United States, 529 U.S. 765, 771 (2000) (reiterating the three requirements which must be met by plaintiffs to establish Article III standing).
B. Harassment
Plaintiffs allege that Defendants undertook to "chill" their constitutional right to hold and promote large events at their ski resort. See Brief in Support of Plaintiffs' Response to Defendants' Motion for Summary Judgment, at 15. According to Plaintiff, the purported harassment which Plaintiffs suffered at the hands of the police constitutes an infringement of their substantive due process rights. Id .
As a general matter, the [courts have] always been reluctant to expand the concept of substantive due process because the guideposts for responsible decisionmaking in this uncharted area are scarce and open-ended. The protections of substantive due process have for the most part been accorded to matters relating to marriage, family, procreation, and the right to bodily integrity.Albright v. Oliver, 510 U.S. 266, 271-72 (1994) (plurality opinion) (citations and internal quotations omitted). "Where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of `substantive due process,' must be the guide for analyzing these claims." Id . at 273 (citations and internal quotations omitted). Thus, the Court will consider whether the police presence and the searches they conducted — the specific acts complained of by Plaintiffs — violate any right secured by a particular Amendment. See id . (finding that petitioner's complaint was more properly considered under a Fourth Amendment, rather than substantive due process, analysis, but expressing no opinion as to whether petitioner's claim would succeed under the Fourth Amendment.).
Alternatively, the Court could simply grant Defendants' motion for summary judgment on this claim inasmuch as Defendants are entitled to qualified immunity on the issue of whether they violated Plaintiffs' substantive due process rights. Government officials such as Defendants are entitled to qualified immunity where "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). Plaintiffs have not brought to the Court's attention, and the Court has not found in its own research, a single case where the Fourth Circuit has held that conduct similar to that complained of here violates a person's substantive due process rights. Therefore, by definition, the right was not clearly established at the time of the acts complained of, and Defendants would be entitled both to qualified immunity and summary judgment. See Swint v. City of Wadley, 51 F.3d 988, 1000-01 (11th Cir. 1995) (finding that a due process right, that is separate and distinct from an equal protection right, had not been clearly established in the Circuit at the time of the acts complained of). In this scenario, because the individual Defendants would be entitled to qualified immunity and summary judgment, the Court would not need to reach the question of whether municipal liability could be imposed. See generally, Pachaly, 897 F.2d at 725-26.
Plaintiffs' complaint is perhaps best understood to be an allegation that the police violated their rights under the Fourth Amendment to be free from unreasonable searches and their right to be free from selective law enforcement guaranteed by the Equal Protection Clause of the Fourteenth Amendment. With respect to Plaintiffs' claim that the police violated the Fourth Amendment by conducting unreasonable searches during the course of the Spring Thaw Out Party, Plaintiffs have failed to produce even a scintilla of evidence demonstrating objective "unreasonableness." It is undisputed that at previous Spring Thaw Out parties members of the community in which the party was held had complained that party-goers had engaged in drunken, rowdy behavior which disrupted the community. Indeed, the Horn of the West, which had previously served as the host location of the party, refused to host the party in 1997 leading to the change in forum to Hawksnest. Similarly, the Seven Devils police knew that fraternity members would again be organizing and running the 1997 party, and that a substantial amount of alcohol would again be served at the party. Assuming the truth of the Plaintiffs' allegations, none of the actions taken by members of the Seven Devils Police Department violated any clearly established constitutional right enjoyed by Plaintiffs. While the Court does not approve of rude hand gestures or lustful leering, Plaintiffs have simply failed to produce evidence tending to show the unreasonableness of the police actions, in light of their knowledge of the problems which had plagued the party in previous years. See, e.g., Turner v. Dammon , 848 F.2d 440, 447 (4th Cir. 1988) (knowledge of a history of violations is grounds for increased police attention), abrogated on other grounds, Johnson v. Jones, 515 U.S. 304 (1995). In sum, the actions taken by the police to ensure compliance with alcoholic beverage laws and the keeping of the peace were eminently reasonable, and were in no way a breach of the Fourth Amendment's prohibition against unreasonable searches.
The Court is equally persuaded that Plaintiffs' Fourth Amendment rights were not infringed by the police at the New Year's Eve party held in 1999. First, Plaintiffs allege that Chief Buchanan contacted the fire marshal and requested that he inspect Hawksnest "in an effort to shut down the lodge on the day before Ski Hawksnest's New Year's Eve party." Amended Complaint, ¶ 29. While Chief Buchanan acknowledges requesting the fire marshal to inspect Hawksnest, he states that he did so because he was concerned about the town's potential liability if an accident were to occur in an uninspected building. Deposition of Joe Raymond Buchanan, at 56-58. In contrast to Chief Buchanan's sworn testimony on matters of which he had first-hand knowledge, Plaintiffs aver upon information and belief that Chief Buchanan's request of the fire marshal was motivated by a sinister desire to put Plaintiffs out of business. See Amended Complaint, ¶ 29; see also Brief in Support of Plaintiffs' Response to Defendants' Motion for Summary Judgment, at 13. "[S]tatements based merely upon information and belief do not satisfy the standards of Rule 56(e)[,]" as they do not "set forth such facts as would be admissible in evidence. . . ." Toro Co., 827 F.2d at 162-63 (citations and internal quotations omitted). Therefore, the Court finds that there does not exist a material question of fact concerning Chief Buchanan's motive for requesting the fire marshal to inspect Hawksnest. Accord, Evans v. Technologies Applications Service Co., 80 F.3d 954, 962 (4th Cir. 1996); Minnesota Mining Mfg. Co., 279 F.2d at 415 .
Plaintiffs do not contest the propriety of the administrative fire inspection itself, only Chief Buchanan's motivation for requesting it. Compare Sequoia Books, Inc. v. McDonald, 725 F.2d 1091, 1094 (7th Cir. 1984) (the existence of a valid warrant is not a defense to a § 1983 suit where the inspecting officer's motivation was to unlawfully force the plaintiff out of business) with Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995) (to prevail on a malicious prosecution claim the plaintiff must "show that the defendants prosecuted her with malice and without probable cause, and that they did so for the purpose of denying her equal protection or another specific constitutional right." (citations omitted)).
Nor is this allegation saved by the fact that Kasey Cottom verified the Amended Complaint. For a pleading to be properly verified it must meet the requirements of Fed.R.Civ.P. 56(e). Because the allegation in question is made upon information and belief, the complaint, or at least this portion of it, cannot be said to be verified. See United States v. Akuffo, 7 F.3d 226 (table), 1993 WL 385170, *1 n.* (4th Cir. 1993).
Second, none of the specific police conduct complained of constitutes harassment. While the positioning of police in a "riot line" within the Hawksnest lounge perhaps portrays poor judgment, insensitivity or lack of awareness of public perception on the part of unidentified members of the Seven Devils Police Department, this conduct does not rise to the level of a constitutional violation. The mere presence of officers at Hawksnest on New Year's Eve is unremarkable, as the officers routinely patrolled the premises; indeed, an increased police presence at a New Year's Eve party would seem not only understandable but desirable, given concerns over drinking and driving and Hawksnest's history of ABC violations. See, e.g., Exhibit E, April 17, 1998, Final Agency Decision, and February 19, 1999, Notice of Alleged Violation, attached to Response to Defendants' Motion to Compel; Exhibit 8, Arrest Reports, attached to Brief in Support of Defendants' Motion for Summary Judgment; Deposition of Leonard Cottom, at 40-43. Leonard Cottom's subjective impression that this incident is evidence of a "grudge" Chief Buchanan harbors against him, see Deposition of Leonard Cottom, at 90-91, is entirely insufficient to raise an issue of material fact. See, e.g., Davis v. Fleet Funding Corp., 884 F.2d 1387 (table), 1989 WL 100661, **[(4th Cir. 1989).
See Deposition of Joe Raymond Buchanan, at 46; Deposition of Mark Clinton Phillips, at 9-10.
Finally, the Court concludes that the sudden departure of several Seven Devils police officers during the 1999 New Year's Eve party did not violate Plaintiffs' constitutional rights. Plaintiffs complain that in the process of leaving, the officers knocked two patrons to the ground and alarmed other guests. However, when viewed in the context of officers responding to a call to assist a fellow officer engaged in a vehicle chase approaching Hawksnest, see Deposition of Joe Raymond Buchanan, at 73-75; Deposition of Kasey Cottom, at 30-32, the contact did not infringe anyone's constitutional rights.
Though Leonard Cottom states that two patrons were knocked down by the police, he cannot identify either of them. See Deposition of Leonard Cottom, at 44-46. Indeed, he does not even state that he personally witnessed the contact. See id . Kasey Cottom claims to have seen officers shoving patrons out of their way as they existed the lounge, but does not aver having witnessed two patrons knocked to the ground. See Deposition of Kasey Cottom, at 26-27. of course, as Plaintiffs were not themselves (inasmuch as a corporation could be) knocked to the ground, they lack standing to sue for this affront. And, Plaintiffs have failed to produce any evidence to show that the police adopted a plan of sorts to knock patrons to the ground in order to disrupt Plaintiffs' business, thus failing to show any violation of their constitutional rights associated with these events.
"Not every push or shove," Graham v. Connor, 490 U.S. [386, 396 (1989)], nor every incidental contact, in the course of lawful police business can give rise to a potential Fourth Amendment violation. Police work involves contact, and we refuse to countenance a rule of law that every time contact occurs, however slight, a jury may decide whether the contact was reasonable. Such a rule would paralyze law enforcement and be a virtual abdication of the court's duties to cut off litigation on motions for summary judgment in proper cases.Friedman v. Jensen, 940 F.2d 1538 (table), 1991 WL 151790, **4 (10th Cir. 1991). Here again, while it is unfortunate that Hawksnest guests were purportedly so alarmed by the officers' sudden departure that they vowed not to return to Hawksnest, this reaction is not of constitutional magnitude.
As an initial matter, Plaintiffs have failed to produce any admissible evidence supporting this allegation. Leonard Cottom states in his affidavit that "many of the guests vowed not to return" because of the police's conduct. Affidavit of Leonard Cottom, ¶ 33. This statement is clearly hearsay which can provide no support for Plaintiffs position. See Fed.R.Civ.P. 56(e); Fed.R.Evid. 801, 802; Evans, 80 F.3d at 962.
Plaintiffs' allegation that their rights were violated by the officers exiting through the wrong door in their effort to rush to the aid of a fellow officer is sophistical. See Deposition of Leonard Cottom, at 43-44 ("It was a total disregard from my business. They chose to go out the wrong door. I mean, they didn't — they didn't — the officers that came to my lounge [on New Year's Eve] were not familiar at all with my building. They didn't even know what I was doing up there, and they went out the wrong exit.").
Similarly, Plaintiffs have wholly failed to produce evidence from which a reasonable jury could conclude that any of the Defendants violated their right to equal protection by selectively enforcing the law against them so as to prevent Hawksnest from holding large events. In order to succeed on an Equal Protection claim, Plaintiffs must show that they were treated differently from others similarly situated because of some impermissible consideration (such as the intent to inhibit the exercise of a constitutional right). See, e.g., Diesel v. Town of Lewisboro, 232 F.3d 92, 103 (2d Cir. 2000); Patel v. Penman, 103 F.3d 868, 877 (9th Cir. 1996); Esmail v. Macrane, 53 F.3d 176, 180 (7th Cir. 1995) (plaintiff must prove that defendant's actions were "a spiteful effort to "get" him for reasons wholly unrelated to any legitimate state objective."). As there is no other ski resort located within the Town of Seven Devils, the Court will construe the "class of businesses" to which Plaintiffs belong, and to which they will be compared, to include business located in Seven Devils which serve alcohol.
Comparing police attention focused on Hawksnest with police scrutiny of Pappy's Barbecue, a restaurant in Seven Devils which serves alcoholic beverages, and Nick's Deli, another establishment that sells alcoholic beverages, is instructive. See generally Deposition of Leonard Cottom, at 58-60. As evidence of the discriminatory treatment suffered by Hawksnest in relation to the level of police attention trained on Pappy's, Leonard Cottom pointed to the fact that "chief [Buchanan] just said they eat dinner there all the time[,]" while "he's never had dinner at my place, that I'm aware of." Id . at 60. Other than Chief Buchanan's dining elections, Cottom stated that he did not know whether there was any difference between police enforcement activities at Hawksnest and Pappy's. Id . Indeed, Chief Buchanan testified that his officers "walked through" (in the words of Plaintiff's counsel) Pappy's and Nick's just as they walked through Hawksnest. Deposition of Joe Raymond Buchanan, at 46. Buchanan testified unequivocally that his officers treated each of these three establishments equally. Id . As Buchanan's testimony is wholly uncontradicted by evidence proffered by Plaintiffs, the Court is compelled to find that Plaintiffs' Equal Protection rights were not infringed.
C. Retaliation
Plaintiffs allege that members of the Seven Devils Police Department have harassed them in retaliation for Plaintiffs' exercise of their First Amendment rights. See generally, ACLU of Md., Inc. v. Wicomico County, 999 F.2d 780, 785 (4th Cir. 1993).
[A] § 1983 retaliation plaintiff must establish three elements in order to prove a First Amendment § 1983 retaliation claim. First, the plaintiff must demonstrate that his or her speech was protected. Second, the plaintiff must demonstrate that the defendant's alleged retaliatory action adversely affected the plaintiff's constitutionally protected speech. Third, the plaintiff must demonstrate that a causal relationship exists between its speech and the defendant's retaliatory action.Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685-86 (4th Cir. 2000) (internal citations omitted); accord Connell v. Signoracci, 153 F.3d 74, 79 (2d Cir. 1998); Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998). The linchpin of a retaliation claim is a showing by the plaintiff that "she suffered some adversity in response to her exercise of protected rights." Wicomico County, 999 F.2d at 785 (citation omitted). "Where there is no impairment of the plaintiff's rights, there is no need for the protection provided by a cause of action for retaliation. Thus, a showing of adversity is essential to any retaliation claim." Id .
There is no dispute that Plaintiffs were engaging in protected First Amendment activity when (through the Cottoms) they issued press releases, spoke at a town meeting, and filed a complaint alleging police misconduct. However, Defendants are entitled to summary judgment because Plaintiffs have failed to offer sufficient evidence from which a reasonable jury could conclude that they suffered some adversity at the hands of Defendants. Indeed, because Plaintiffs have not shown that Defendants took any actions against them in response to the exercise of their First Amendment rights, the Court's inquiry ends before examining the issues of injury and motive.
Plaintiffs allege upon information and belief that "the Seven Devils Police Department . . . intensified patrols of the Ski Hawksnest parking lot, often exiting their vehicles to patrol the lot by foot, shining their flashlights into all vehicles in the lot." Amended Complaint, ¶ 51. In support of this allegation Plaintiffs direct the Court's attention to ¶ 47 of Leonard Cottom's affidavit. Brief in Support of Plaintiffs' Response, at 7. Presumably, Plaintiffs meant to direct the Court's attention to ¶ 46, as it, rather than ¶ 47, alleges an intensification of patrols. Compare Affidavit of Leonard Cottom, ¶ 46 with id . ¶ 47. Regardless, Cottom's affidavit fails to provide admissible evidence, as it states conclusorily, virtually verbatim to the complaint, that the police intensified patrols. See Evans, 80 F.3d at 962 ("summary judgment affidavits cannot be conclusory"). There is no basis to conclude that the affidavit is made on personal knowledge, and it patently fails to "set forth such facts as would be admissible in evidence[.]" Minnesota Mining Mfg. Co., 279 F.2d at 415. In sum, Plaintiffs have failed to produce any evidence that members of the Seven Devils Police Department increased their patrols of Hawksnest.
Next, Plaintiffs allege upon information and belief that "the Seven Devils Police Department . . . increased its stops of Ski Hawksnest's guests and employees traveling on Skyland Drive." Amended Complaint, ¶ 52. In support of this allegation Plaintiffs direct the Court's attention to portions of Leonard Cottom's affidavit and deposition testimony and to portions of Kasey Cottom's deposition testimony. Leonard Cottom states in his affidavit that he "received complaints from citizens that the police department routinely [stopped vehicles and searched both the occupants and the vehicle.]" Affidavit of Leonard Cottom, ¶ 50. This is bare hearsay: Plaintiffs have failed to provide even the names of the complaining citizens, much less proper affidavits from them setting forth first hand knowledge of said stops.
Kasey Cottom's testimony concerning this matter also fails to raise a material issue of fact, for it, too, is entirely hearsay. Kasey Cottom states that she "lost quite a few employees because they were tired of being pulled over every time they came to work or went home from work." Deposition of Kasey Cottom, at 38. She identifies these employee as "Lori," "Chad," "Bobby," and "Bonnie," but the Court has not been favored with the benefit of an affidavit from anyone setting forth their personal knowledge of said harassment. See id . at 38-40. While Leonard Cottom states that he has personally witnessed the police stopping patrons, he neither identifies the dates of such occurrences nor alleges that he has personal knowledge of the police increasing said stops after Plaintiffs exercised their First Amendment rights. See Deposition of Leonard Cottom, at 88-89. Here again, Plaintiffs have failed to produce sufficient evidence from which a reasonable jury could conclude that the police increased vehicle stops and searches at Hawksnest after Plaintiffs exercised their First Amendment rights.
Plaintiffs also allege upon information and belief "that between January 13, 2000 and March 1, 2000 the police issued in excess of five hundred (500) warning tickets to travelers on Skyland Drive, the majority of which were issued to Ski Hawksnest's guests." Amended Complaint, ¶ 53. Plaintiffs have failed to offer evidence to support this allegation. Indeed, the only instance where the issue of 500 citations was discussed is in a question posed to Chief Buchanan during the course of his deposition testimony. After Chief Buchanan stated that he did not know how many citations had been issued by the police department between January 1, 2000, and March 1, 2000, Plaintiffs' counsel asked:
Q: If I told you that your department issued in excess of 500 citations, would that seem kind of out of line?
A: It would seem kind of high, sure would.
Q: Do you believe that that's the amount?
A: I don't think so.
Deposition of Joe Raymond Buchanan, at 80-81. Given the complete lack of evidence showing that the police issued in excess of 500 warning tickets or citations, and the absence of a pre-First-Amendment-exercise" base-line to which this number could be compared, the Court finds that Plaintiffs have failed to produce sufficient evidence from which a reasonable jury could conclude that the police issued an excessive number of citations in retaliation for Plaintiffs' exercise of their First Amendment rights.
Continuing, Plaintiffs allege upon information and belief "that between January 13, 2000 and March 1, 2000 the police department routinely followed vehicles leaving the resort at extremely close distances, tailgating these vehicles, only to stop them and conduct vehicle searches and sobriety tests of many of the vehicles and their passengers without probable cause to do so." Amended Complaint, ¶ 54; see also id . ¶ 55. As an initial matter, given the Plaintiffs' admission that Seven Devils police department officers routinely patrolled the area, see id . ¶ 51 (police "intensified" [rather than "began"] patrols); Deposition of Joe Raymond Buchanan, at 84-85, 90; Deposition of Mark Clinton Phillips, at 20, Plaintiffs must allege that the police intensified or increased their stops in order to state a claim for retaliation. Regardless, though, Plaintiffs have failed to proffer sufficient evidence from which a reasonable jury could find in their favor on this point. As noted supra, Leonard Cottom's statement that he "received complaints from citizens that the police department . . . tailgat[ed] . . . vehicles, only to stop them and conduct vehicle searches and sobriety tests of many of the vehicles and their passengers without probable cause to do so[,]" is hearsay which adds no weight to Plaintiffs position. Affidavit of Leonard Cottom, ¶ 50. Cottom's blanket assertion that the police "harassed my customers in the parking lot, they've harassed them out on the road bed[,]" similarly fails to raise a genuine issue of material fact. Deposition of Leonard Cottom, at 75.
Finally, Plaintiffs allege upon information and belief that "the Seven Devils Police Department . . . routinely stopped [and interrogated] . . . employees and guests exiting the lodge as well as visitors to the parking lot on various occasions, . . . forcing drivers and passengers out of their vehicle [sic] and conducting searches of these employees, visitors and their vehicles while parked in the Ski Hawksnest parking lot, and on at least one occasion used racial epithets when referring to a minority guest in the parking lot." Amended Complaint, ¶ 56; see also ¶ 55. Leonard Cottom states in his affidavit that the racial slur was used by an unidentified officer sometime between January 3, 2000 and March 1, 2000; he does not identify the person against whom the slur was directed. See Affidavit of Leonard Cottom, ¶ 52. While such conduct is "undeniably deplorable and unprofessional[,]" it "does not by itself rise to the level of a constitutional violation[,]" and is, in these circumstances, insufficient to raise a material issue of fact. Carter v. Morris, 164 F.3d 215, 219 n. 3 (4th Cir. 1999); see also Martinez v. Colon, 54 F.3d 980, 984 (1st Cir. 1995) ("[It] is important to bear in mind that not every genuine factual conflict necessitates a trial. It is only when a disputed fact has the potential to change the outcome of the suit under the governing law if found favorably for the nonmovant that the materiality hurdle is cleared." (citation omitted)).
Plaintiffs offer the affidavit and deposition of Leonard Cottom and the deposition of Kasey Cottom to bolster their claim that the police retaliated against them by increasing stops and searches of employees and patrons in the Hawksnest parking lot. Kasey Cottom states in the most general of terms that the police were harassing customers by "detaining them. They were wanting to search everybody's cars. . . . And they would agree to it, and nothing would be found, to my knowledge." Deposition of Kasey Cottom, at 35-36. Kasey Cottom's assumptions and subjective perceptions (concerning consent and the results of searches, among other things) are insufficient to establish that the police were stopping or searching individuals more often than they had previously done in retaliation against Plaintiffs. See, e.g., Long, 1987 WL 38247, at **2 ("mere speculation" by the plaintiff is insufficient to raise a material issue of fact). Though Leonard Cottom states that he has witnessed officers stopping patrons to ask them what was in their beverage containers, shining a flashlight into cars, searching patrons, and stopping patrons leaving Hawksnest, he does not state when these activities took place. See Deposition of Leonard Cottom, at 88-89; see also id., at 76 ("my staff . . . would tell me, you know, "They did such and such and such and such out there in that parking lot a few minutes ago, Leonard.'"). Moreover, none of these actions, if in fact taken by the police, would by themselves violate Plaintiffs' constitutional rights. These actions must be considered in reference to the undisputed evidence that the police would routinely patrol Hawksnest, check beverages on occasion, and, where supported by probable cause (e.g., theft of a snowboard or detection of marijuana), ask certain patrons to exit their vehicles to be searched. See Deposition of Joe Raymond Buchanan, at 22, 26-28, 32-33 (prior to the Cottoms buying Hawksnest, the police conducted walk-throughs, patrolled the parking lot, and set up check points at Hawksnest — all when John Reynolds, a friend of Chief Buchanan's, owned the resort), 84-85, 90; Deposition of Mark Clinton Phillips, at 9-10, 19-20; Deposition of Leonard Cottom, at 78-79 (acknowledging that, while it is not allowed, patrons nonetheless drink alcoholic beverages in the Hawksnest parking lot). As Plaintiffs have failed to produce evidence showing that the police increased or intensified their usual patrol activities after Plaintiffs exercised their First Amendment rights, they have failed to establish an essential element of their retaliation claim.
The deposition testimony of Plaintiffs' expert witness, Gerald Hotopp, adds nothing to their case. Assuming the truth of Plaintiffs' allegations, Hotopp concludes that the police conduct was improper selective enforcement indicating a retaliatory intent on the part of the Seven Devils police. See Brief in Support of Plaintiffs' Response, at 13. As Judge Posner explained:
Indeed, the only instances where Hotopp identified what he felt was an "inordinate police presence" are at the Spring Thaw Out party and the 1999 New Year's Eve party. See Deposition of Gerald D. Hotopp, at 51; but see id., at 61-62 (Hotopp has not made a study of what the "needs or [appropriate] spread of the police manpower should be."). The retaliation claim, however, focuses only on what the police did after the New Year's Eve party. Similarly, though Plaintiffs allege that after reviewing 70 citations issued by the police for "frivolous, technical, or borderline violations[,]" such as driving left of center, running a stop light, or driving with a broken taillight, Hotopp concluded that the police were violating their own policies in order to retaliate against Plaintiffs, there is no evidence indicating that the police increased the number of citations they issued, or that they had not given citations for similar infractions prior to Plaintiffs' exercise of their First Amendment rights. See id., at 84, 86; Brief in Support of Plaintiffs' Response, at 13-14.
[A] party cannot assure himself of a trial merely by trotting out in response to a motion for summary judgment his expert's naked conclusion about the ultimate issue. . . . To allow this would be to confuse admissibility with weight and to disregard the judge-crafted limitations on the admissibility of expert testimony. The fact that a party opposing summary judgment has some admissible evidence does not preclude summary judgment. We and other courts have so held with specific reference to an expert's conclusional statements. . . . The Federal Rules of Evidence permit "experts to present naked opinions," but "admissibility does not imply utility. . . . An expert who supplies nothing but a bottom line supplies nothing of value to the judicial process," and his "naked opinion" does not preclude summary judgment. . . . To put this differently, an expert's opinion based on "unsupported assumptions" and "theoretical speculations" is no bar to summary judgment.American Int'l Adjustment Co. v. Galvin, 86 F.3d 1455, 1464 (7th Cir. 1996) (Posner, C.J., dissenting) (quoted in Weigel v. Target Stores, 122 F.3d 461, 469 (7th Cir. 1997)); accord Alevromagiros v. Hechinger Co., 993 F.2d 417, 421 (4th Cir. 1993) ("Like the Fifth Circuit, we are unprepared to agree that "it is so if an expert says it is so."' (citation omitted)); Hayes v. Douglas Dynamics, Inc., 8 F.3d 88, 92 (1St Cir. 1993) ("We are not willing to allow the reliance on a bare ultimate expert conclusion to become a free pass to trial every time that a conflict of fact is based on expert testimony. . . ."). Hotopp's expert opinion does not change the fact that Plaintiffs have failed to demonstrate that the Seven Devils police took any retaliatory actions against them after they exercised their First Amendment rights.
In addition to the dearth of evidence presented by Plaintiffs tending to show retaliation, Chief Buchanan testified unequivocally in his deposition that no such animus existed. When asked whether he had ever told anyone that he was going to "get" Leonard or Kasey Cottom, Chief Buchanan replied, "No, sir." Deposition of Joe Raymond Buchanan, at 81-82. He also flatly denied instructing, participating in, or having knowledge of an alleged campaign of harassment where officers would sit outside Hawksnest in order to stop people when existing, though he thought it would be appropriate to stop vehicles if the officers had probable cause to do so. Id . at 82-84. In sum, Chief Buchanan' uncontradicted testimony demonstrates the complete lack of a campaign of retaliation.
The facts of this case are virtually indistinguishable from those in Melkonian v. City of Havelock, 930 F.2d 913 (table), 1991 WL 57240 (4th Cir. 1991).
The testimony of [plaintiff] and his wife indicates only that the officers stayed near the club, walked through periodically, stopped some customers as they left "as if they were driving while impaired" and told [plaintiff] on occasion that the City received complaints of noise. Statements presented . . . indicate only that they observed police in and around [the club] and that their presence made customers nervous. . . . On the other hand, in the police affidavits presented by the defendants, the officers denied that they were directed to give special attention to [the club]. The police chief testified by deposition that he instructed police officers to patrol every bar in the City and to get out of the patrol car and walk through the businesses as often as possible. He also said that he did not direct that this activity occur more frequently at [the club] than similar establishments.Id . at ***3. The Circuit affirmed the district court's grant of summary judgment, finding that the plaintiff's "evidence simply failed to establish a genuine issue of material fact concerning whether his employees and customers were subjected to a systematic scheme of harassment and intimidation." Id . This Court is similarly persuaded that Defendants' summary judgment motion should be granted in this case.
D. Conspiracy
Plaintiffs seek to recover pursuant to 42 U.S.C. § 1983 for an alleged conspiracy between Chief Joe Raymond Buchanan, Sr., and his son, Joe Ray Buchanan, Jr., to deprive Plaintiffs of their constitutional rights. ""It is well settled that mere allegations of conspiracy, backed up by no factual showing of participation in a conspiracy, are insufficient to support such an action against a motion for summary judgment based on affidavits establishing the absence of participation."' Ballinger v. North Carolina Agr. Extension Serv., 815 F.2d 1001, 1007 (4th Cir. 1987) (quoting Buschi v. Kirven, 775 F.2d 1240, 1248 (4th Cir. 1985)). Defendants are entitled to summary judgment on this claim because there is no proof, either directly or indirectly, of participation in a conspiracy by either of the Buchanans.
E. Municipal Liability
As the Court has determined that Plaintiffs have failed to produce sufficient evidence from which a reasonable jury could conclude that officers of the Seven Devils Police Department violated their constitutional rights, the Court need not consider whether either Chief Buchanan or Mayor Williams was sufficiently a policy-maker for the Town to be held liable for the acts of individual officers. See Leather v. Ten Eyck, 242 F.3d 366 (table), 2001 WL 55787, **4 (2d Cir. 2001). Where a plaintiff fails to offer evidence from which a reasonable jury could find a § 1983 violation on the part of individual officers, it follows that a municipality likewise cannot be held constitutionally liable. Stevenson v. Martin County Bd. of Educ., 243 F.3d 541 (table), 2001 WL 98358, **7 (4th Cir. 2001).
IV. ORDER
IT IS, THEREFORE, ORDERED that the claims of Plaintiffs Leonard and Kasey Cottom be DISMISSED for lack of standing.
IT IS FURTHER ORDERED that the Defendants' motion for summary judgment as to the remaining Plaintiffs is hereby GRANTED. A Judgment dismissing this action in its entirety is filed herewith.
JUDGMENT
For the reasons stated in the Memorandum and Order filed herewith,
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the claims of Plaintiffs Leonard and Kasey Cottom are hereby DISMISSED for lack of standing, and the Defendants' motion for summary judgment as to the claims of the remaining Plaintiffs is ALLOWED, and this matter is hereby DISMISSED WITH PREJUDICE in its entirety.