Opinion
No. 1:05-1072-T-An.
January 12, 2006
ORDER ON DEFENDANT GEORGE KILLEBREW'S PENDING MOTION FOR SUMMARY JUDGMENT
Plaintiffs, Joe F. Jenkins ("Jenkins") and Joan J. Jenkins, sued Defendants, Greg Horton ("Horton"), Jim Pillow ("Pillow"), George Killebrew ("Killebrew"), and the City of Milan, Tennessee, seeking damages and injunctive relief pursuant to 42 U.S.C. §§ 1983, 1985, and Tennessee law. Jenkins sued Defendant Killebrew, who is the Mayor of the City, in Killebrew's individual and official capacities. Defendant Killebrew, in his individual capacity, has filed a motion for summary judgment with respect to Jenkins' § 1983 claims under the First and the Fourth Amendment to the United States Constitution. Defendant Killebrew also contends that Jenkins has failed to state a § 1983 conspiracy claim or a claim that Defendant Killebrew violated Jenkins' "substantive due process" rights. See Def. Killebrew's Mem. Supp. Mot. Summ. J. at 7, 8.
Joan J. Jenkins is no longer a party to this proceeding. [Dkt. # 43].
Jenkins voluntarily dismissed all pending claims against Defendant Pillow, in Pillow's individual capacity, on November 21, 2005. [Dkt. 50]
Jenkins' state law claims and his claim that Defendants violated 42 U.S.C. § 1985 were disposed of in previous orders. [Dkt. ## 18, 31].
For the reasons set forth below, the motion [Dkt. # 20] is GRANTED. The court GRANTS Defendant Killebrew's motion to dismiss Jenkins' substantive due process claim. The court GRANTS Defendant Killebrew's motion to dismiss the conspiracy claim. The court GRANTS summary judgment to Defendant Killebrew with respect to Jenkins' First and Fourth Amendment claims against Defendant Killebrew, individually. The court does not address Jenkins' Equal Protection claim.
I. A.
In this part of the court's order, the "facts" are recited primarily from Jenkins' own pleadings for the purposes of introduction and to explain Jenkins' essential theory of the case as it relates to Defendant Killebrew.
Jenkins alleges that, in 2001 or 2002, he signed and participated in the circulation of a citizens' petition regarding the City's Building Inspector, Defendant Pillow. According to Jenkins, Defendant Pillow had exercised his authority to interpret and to enforce relevant city ordinances in a manner that was "irrational and inappropriate." Compl. ¶ 15; Am. Compl. ¶ 14. The petition apparently asked the City to give Defendant Pillow the ultimatum of either changing his alleged misconduct or losing his position as Building Inspector. Compl. ¶ 14. The Board of Alderman did not adopt the course of action proposed in the petition, however, and Defendant Pillow remained employed by the City.
Pillow is no longer the City's Building Inspector. Am. Compl. ¶ 11.
Defendants Pillow, Horton, and Killebrew then allegedly began to carry out a scheme to "get" Jenkins in revenge for his role in the petition to remove Defendant Pillow. Each of the alleged adverse actions involved one or more of several parcels of residential rental property that Jenkins owned in or near the City. First, on April 16, 2001, Defendant Pillow issued a "stop work order" to Jenkins regarding the properties that Jenkins was renovating at 2030 Barger Street and 3029 Keel Street. Compl., Ex. A. The letter advised Jenkins that the structures located on these lots were in violation of the City's slum clearance ordinances. Id. The letter ordered Jenkins to appear before Defendant Pillow to answer the City's complaint. Id. Jenkins alleges that he later received a condemnation notice despite interim assurance by Defendants Killebrew and Pillow that Jenkins could continue renovating the Barger and Keel Street properties notwithstanding the stop work order. Id. ¶¶ 21-22; see also id., Ex. B. Jenkins ultimately was forced to demolish the existing structures on Barger and Keel. Id. ¶ 30. When he did, he kept the salvaged materials for the purpose of reusing them. Id. Before he could reuse them, and allegedly without notice, the City removed the salvage from the Barger and Keel locations. Id. ¶ 35. The City then billed Jenkins for the removal. Id., Ex. C.
In addition to the petition, Defendant Horton allegedly was angry at Jenkins because Jenkins had reported Defendant Horton to the police after Horton had ignored Jenkins' requests to keep Horton's dog on a leash and off of Jenkins' land. Defendant Horton had allegedly threatened Jenkins' employees after this incident. Compl. ¶¶ 24-27, 32; Am. Compl. ¶¶ 24-27, 33. Defendant Killebrew swore in his affidavit, however, that he was unaware that Defendant Horton had made any threats to Jenkins. Killebrew Aff. ¶¶ 8, 9. Jenkins did not dispute this in response to Defendant Killebrew's motion. See Jenkins' Resp. to Def. Killebrew's Mot. Summ. J. at 5. Nor has Jenkins offered any evidence that Defendant Killebrew knew that Jenkins had called the police on Defendant Horton for violating the City's dog lease ordinance.
In the amended complaint, Jenkins for the first time suggests that he had campaigned against Defendant Killebrew in the 2000 mayorial election. Am. Compl. ¶ 13. This additional theory on motive was not before the court until after the instant motion became ready for disposition, and there is no record evidence supporting the new theory that can be considered in the court's decision.
"Keel Street" is sometimes referred to as "Kelly Street" or "Keil Street."
Approximately two years after receiving the first stop work order, Jenkins planted corn where the former structures had been located on Barger and Keel. Id. ¶ 37. Soon thereafter, Defendant Pillow notified Jenkins that these properties were classified as "R-3 Residential" in the City's zoning ordinance; consequently, farming was not permitted as a primary use. Id., Ex. D. Jenkins did not believe he was engaging in farming, so he did not remove the corn himself. The City removed it for him on August 15, 2003. Id. ¶ 39.
Jenkins claims that he began to re-circulate the anti-Pillow petition around this time. Compl. ¶ 41.
In March of 2004, Jenkins states that he went to various City officials and legislators to complain about Pillow's behavior and to reiterate the contents of his petition. He alleges that both Defendants Pillow and Killebrew responded by openly "berat[ing]" Jenkins and the petition in a local newspaper. Id. ¶¶ 46. Pillow apparently did not stop with verbal abuse, however. As Jenkins describes it, Defendant Pillow continued to "inspect properties owned by Mr. Jenkins in an attempt to find code violations out-of-spite for Mr. Jenkins and to harass him." Id. ¶ 43.
Jenkins did not produce any evidence to support this assertion after Defendant Killebrew moved for summary judgment. In fact, Jenkins' response does not appear to even mention the alleged newspaper articles.
For example, Defendant Pillow allegedly took it upon himself to visit Jenkins' property at 2049 Culpepper Street and "demand" that Jenkins produce a building permit. Id. ¶ 49. When Jenkins informed Defendant Pillow that he did not have his permit on his person, Defendant Pillow told Jenkins that he would have to come to City Hall and purchase another permit. Id. ¶ 50. Jenkins went to City Hall, but he never bought a new permit because Defendant Pillow allegedly exaggerated the value of the renovations to 2049 Culpepper. Jenkins thus left City Hall without a new permit. Later, the City cited him for not having a valid permit, even though Jenkins maintained that his old permit was effective. Id. ¶¶ 51-55.
Defendants did not agree that Jenkins' old permit was still valid. This issue is pending in state court. Compl. ¶ 60.
On his own accord, Defendant Pillow allegedly questioned a tenant at Jenkins' West Main Street rental unit about whether or not a smoke detector was installed in the residence. Id. ¶¶ 63-64. Defendant Pillow then inspected the West Main property. Id. ¶ 67. Although a smoke detector had been installed in the West Main residence when the tenant had taken possession — which is apparently all that state law required — there was not a smoke detector installed in March of 2004 when Defendant Pillow inspected the premises. After Defendant Pillow made this discovery, he and Defendants Killebrew and Horton allegedly plotted to have Jenkins arrested for violating the smoke detector law. Id. ¶ 66. Defendant Pillow allegedly gave Jenkins' tenant a complaint and instructed the tenant as to what the complaint should say regarding Jenkins and the lack of a smoke detector. Id. ¶ 68.
Subsequently, Jenkins received a letter advising him of numerous building code violations at his West Main property. Id., Ex. G. Among other things, the letter implied that the absence of a smoke detector was a criminal offense. Id. Jenkins avers that, before he could remedy the alleged violation, the City police department called him and told him to come to the police station. When Jenkins complied, he was arrested. Id. ¶¶ 73-75.
B.
In March of 2005, Jenkins brought suit against Defendants Pillow, Horton, Killebrew, and the City. Among other things, Jenkins alleged that all of these Defendants had violated the First Amendment by retaliating against him because of his exercise of the "right to freedom of political speech." Id. ¶ 94. Second, based on his arrest for allegedly violating the smoke detector law, he alleged that all Defendants had deprived him of his right to be free from unreasonable seizures. Id. ¶ 97. Third, he claimed that Pillow, Horton, and Killebrew had deprived him of his "substantive due process" right to be free from conscience-shocking or egregious government action. Id. ¶ 103. He sought relief for these alleged constitutional deprivations pursuant to 42 U.S.C. § 1983. Defendants interpreted Jenkins' original complaint as also attempting to state a separate conspiracy claim under to § 1983. See Def. Killebrew's Mem. Supp. Summ. J. at 7 (citing Compl. ¶ 66).
The complaint contained additional claims for relief not relevant to the issues before the court here.
On June 27, 2005, Defendant Killebrew filed a motion seeking dismissal of Jenkins' substantive due process and conspiracy claims against Defendant Killebrew in his individual capacity. Defendant Killebrew also sought summary judgment with respect to Jenkins' First and Fourth Amendment claims against Killebrew. In support of summary judgment, Defendant Killebrew relied on his own affidavit. Because Jenkins cited a need to conduct additional discovery, the court granted Jenkins an additional sixty days in which to respond to Defendant Killebrew's motion and affidavit. On September 26, 2005, Jenkins responded, but the only "additional" discovery that was relied on was Jenkins' own affidavit disagreeing with the assertions in Defendant Killebrew's affidavit. Besides his affidavit, Jenkins produced no evidence in response to Defendant Killebrew's motion other than excerpts from two depositions that were taken — one of Defendant Pillow and the other of Defendant Killebrew — in conjunction with Jenkins' state court criminal case. On October 14, 2005, Defendant Killebrew filed a reply to Jenkins' response.
During those state depositions, however, Jenkins' counsel was prohibited from asking anything not strictly pertaining to the state criminal case. As a consequence, counsel was not allowed to ask some questions that may have been relevant to this federal civil rights case. See, e.g., Killebrew Dep. at 87-92. Jenkins' reliance on those same limited depositions in response to Defendant Killebrew's affidavit is therefore somewhat surprising.
On November 10, 2005, Jenkins filed an amended complaint. [Dkt. # 43]
II.
Defendant Killebrew argues that Jenkins' substantive due process and conspiracy allegations should be dismissed for failure to state a claim. See FED. R. CIV. P. 12(b)(6). The court will grant such a request only if the court concludes that Jenkins can undoubtedly prove no set of facts in support of either his conspiracy or substantive due process claim that would entitle him to relief. See Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 724 (6th Cir. 1996) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The court will assume the truth of Jenkins' version of the facts and will draw all reasonable inferences in his favor. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957).A. Conspiracy
Even under this lenient standard, neither the complaint nor the amended complaint states a conspiracy claim under § 1983. "'It is well-settled that conspiracy claims must be pled with some degree of specificity and that vague and conclusory allegations unsupported by material facts will not be sufficient to state such a claim under § 1983.'" Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir. 2003) (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987)). Here, Jenkins declares that, "Defendant Pillow conspired with Defendant Killebrew and Defendant Horton in a plan to have Mr. Jenkins arrested for an alleged failure to have a smoke detector at 2093 West Main." Compl. ¶ 66; Am. Compl. ¶ 67. This single reference to a "conspir[acy]" is a legal conclusion contained in the "[f]acts" sections of Jenkins' complaints, wholly unconnected to any specific material allegations describing the alleged plan or Defendant Killebrew's knowledge of or participation in that plan. Because "legal conclusions masquerading as factual conclusions will not suffice to prevent [dismissal]," Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005) (citations omitted), the court grants Defendant's motion to dismiss Jenkins' § 1983 conspiracy claim.
Because Jenkins' conspiracy "claim" is clearly insufficient on this basis, the court does not presently address Defendant Killebrew's contention that the "intracorporate conspiracy doctrine" bars Jenkins' conspiracy claims under § 1983.
B. Substantive Due Process
Although pleaded with specificity, the substantive due process claim also must be dismissed. See Compl. ¶¶ 101-05; Am. Compl. ¶¶ 124-33. The Supreme Court has held that when an "explicit textual source of constitutional protection" applies to a particular type of government action, "that Amendment, not the more generalized notion of 'substantive due process,' must be the guide for analyzing [the] claims." Albright v. Oliver, 510 U.S. 266, 273 (1994) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)); Thadeuss-X v. Blatter, 175 F.3d 378, 387-88 (6th Cir. 1999) (en banc); Estate of Smith v. Michigan, 256 F. Supp.2d 704, 707 (E.D. Mich. 2003). This principle applies in the present case.Each of Jenkins' factual claims describes government conduct that is addressed by and should be analyzed under a specific provision of the Constitution. First, Jenkins complains about various adverse actions allegedly taken to punish him for circulating a petition critical of Defendant Pillow. The First Amendment clearly provides the most "explicit textual source of constitutional protection" for that type of government retaliation. See, e.g., Barrett v. Harrington, 130 F.3d 246, 264 (6th Cir. 1997), cert. denied, 523 U.S. 1075 (1998) ("[I]t is well-established that a public official's retaliation against an individual exercising his or her First Amendment rights is a violation of § 1983.") (citations omitted). Jenkins' second claim — that he was arrested without probable cause — is covered similarly by one of the ten individual provisions of the Bill of Rights. See U.S. CONST. amend. IV ("The right of the people to be secure in their persons . . . against unreasonable . . . seizures, shall not be violated."); Albright v. Oliver, 510 U.S. 266, 274 (1994) ("The Framers considered the matter of pretrial deprivations of liberty and drafted the Fourth Amendment to address it."). Last, the Equal Protection Clause supplies the appropriate standard for reviewing Jenkins' claim that the City's ordinances were enforced selectively against Jenkins for no legitimate reason. See Am. Compl. ¶¶ 134-141; Village of Willowbrook v. Olech, 528 U.S. 562 (2000).
In light of Albright, Graham, and the law of the Sixth Circuit, there is no room for Jenkins' freestanding "substantive due process" claim, and the claim is dismissed.
Jenkins apparently believes that he is entitled to pursue his substantive due process claim unless and until he prevails on one or more of his other constitutional claims. See Jenkins' Resp. Opp. Def. Killebrew's Mot. Summ. J. at 12, 13 (citing FED. R. CIV. P. 8 for the proposition that Jenkins' substantive due process claim is an "alternative theory of recovery" for the same misconduct); id. at 13 (suggesting that Defendant Killebrew's denial of a First or Fourth Amendment violation leaves open the possibility of recovery for a violation of substantive due process based on the same facts). This understanding is misplaced. In Albright, for example, the Court affirmed dismissal of the petitioner's substantive due process claim without opining as to the ultimate merit of a Fourth Amendment claim based on the exact same facts. See Albright, 510 U.S. at 275 ("We express no view as to whether petitioner's claim would succeed under the Fourth Amendment. . . . We do hold that substantive due process, with its 'scarce and open ended' 'guideposts' . . . can afford him no relief.") (emphasis added) (internal citations omitted). This holding does not bode well for Jenkins' "supplemental" or "alternative" substantive due process argument.
III.
Defendant Killebrew next seeks summary judgment based on his contention that Jenkins has failed to create a genuine dispute of material fact regarding whether Killebrew may be held personally liable for violating Jenkins' rights under either the First or the Fourth Amendment. "The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A factual dispute is "material" "only if its resolution might affect the outcome of the suit under the governing substantive law." Trihealth, Inc. v. Bd. of Comm'rs, Hamilton County, Ohio, 430 F.3d 783, No. 05-3195, 2005 U.S. App. LEXIS 27269, at *8 (6th Cir. Dec. 14, 2005). A material factual dispute is "genuine" "only if premised on evidence upon which a reasonable jury could return a verdict in favor of the non-moving party." Id. (citing Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 451 (6th Cir. 2004).When, as here, the movant claims simply that the record contains no genuine dispute of material fact, the court must view the record in a light most favorable to the non-moving party and must draw all reasonable factual inferences in that party's favor. Johnson v. Karnes, 398 F.3d 868, 873 (6th Cir. 2005). A non-movant who will bear the ultimate burdens of production and persuasion may not, however, rely solely on the pleadings to defeat a motion for summary judgment based on the lack of evidence. FED. R. CIV. P. 56(e). Nor may the non-movant rely on an affidavit containing inadmissible hearsay or matters about which the affiant would not be competent to testify at trial. Id.
In every case seeking recovery under § 1983, the plaintiff must establish two threshold elements. First, the plaintiff must establish that he was deprived of a "right, privilege, or immunit[y] secured by the Constitution [or] laws of the United States." 42 U.S.C. § 1983; see also Miller v. Calhoun County, 408 F.3d 803, 812 (6th Cir. 2005). Next, the plaintiff must establish that the deprivation was caused by a defendant acting under color of law. See § 1983; Miller, 408 F.3d at 812 (citations omitted). In this case, though, the inquiry is not concerned with either of these two threshold elements standing alone. Instead, the court here focuses on the factual issue of whether — assuming the deprivation of a constitutional right by someone acting under color of law — Jenkins has produced a genuine issue of fact regarding whether that deprivation was caused by Defendant Killebrew in a sense that could render him subject to personal liability. Based on the record before it, the court cannot conclude that Jenkins has satisfied that burden of production against Defendant Killebrew in this case.
A. Fourth Amendment
Jenkins attacks the constitutionality of his April 1, 2004 arrest. He contends that the warrant for this arrest was based on false information manufactured by Pillow, Horton, and Killebrew. Compl. ¶¶ 98; Am. Compl. ¶ 119. Defendant Killebrew insists that he was not involved in the decision to issue a warrant for Jenkins' arrest and that the record contains no evidence upon which a reasonable jury could come to a contrary conclusion. Defendant Killebrew has submitted an affidavit in support of his denial of participation.
§ 1983 in some circumstances may support damages against an officer who makes "material false statements either knowingly or in reckless disregard for the truth to establish probable cause for an arrest." Vakilan v. Shaw, 335 F.3d 509, 517 (6th Cir. 2003), reh'g denied, No. 01-2377: 01-2443, 2003 U.S. App. LEXIS 18084, at *1 (6th Cir. Aug. 26, 2003) (citation omitted).
In his affidavit, Defendant Killebrew swears under oath that he was not involved in the decision to arrest Jenkins. Killebrew Aff. ¶ 4. In fact, Defendant Killebrew denies that he even knew that Jenkins would be arrested for failure to keep a smoke detector at the West Main property. Id. In response to Defendant Killebrew's affidavit, Jenkins relies first on the following exchange from Defendant Pillow's state court deposition testimony:
QUESTION: You're saying you [Defendant Pillow] did not participate in the decision to have Mr. Jenkins arrested at all?
ANSWER: No, sir, . . . other than forwarding [the results of my investigation] to the police department. . . .
QUESTION: Did you talk to [Defendant Killebrew] about it?
ANSWER: I advised him of what was going on [in] the situation as I did [in] any other situation like that.
Pillow Dep. at 76, ¶¶ 13-22. Then, in his affidavit, Jenkins states that, "Pillow had me arrested and pursued other actions against me because of the exercise of my First Amendment rights." Jenkins Aff. ¶ 6. Jenkins believes that Pillow's alleged motive and the fact that Pillow "advised [Defendant Killebrew] of what was going on" creates a genuine factual dispute as to whether Killebrew participated in an effort to have Jenkins arrested. This belief is not well-founded.
First, Jenkins' accusations about Pillow's motive do not shed any light on the issue of Killebrew's involvement in providing the information upon which Jenkins' arrest warrant was based. Second, it is clear to the court that Pillow's deposition testimony does not support the inference that Pillow "advised" Killebrew that false information was provided to the police for the purpose of causing Jenkins' arrest. Instead, the most favorable inference that could be drawn in Jenkins' favor from the above testimony is that Killebrew was informed that Pillow had investigated Jenkins' West Main Street property and he (Pillow) subsequently had transmitted his findings to the police department. Even if that inference is drawn, the present record still could not support a finding that Defendant Killebrew ever played an active role in Pillow's alleged effort to cause Jenkins' arrest (which is what Jenkins accuses Killebrew of doing, see compl. ¶ 98; am. compl. ¶ 119).
To defeat Defendant Killebrew's motion for summary judgment on Jenkins' claim that Killebrew is personally responsible for the alleged breach of the Fourth Amendment, Jenkins had to produce some affirmative evidence upon which a reasonable jury could find that Killebrew played more than a passive role in the events leading to Jenkins' arrest. E.g., Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999) (citations omitted). No reasonable jury could so find based on nothing more than Pillow's statement that Killebrew was "advised . . . of what was going on." Pillow Dep. at 76. The evidence on this issue is "so one-sided that [Defendant Killebrew] must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Accordingly, the court grants Defendant Killebrew's motion for summary judgment on Jenkins' Fourth Amendment claim.
B.
Finally, Jenkins claims that Defendant Killebrew is personally liable for taking numerous adverse actions against Jenkins in retaliation for Jenkins' First Amendment right to criticize the government. See Compl. ¶¶ 90-91; Am. Compl. ¶¶ 109-114. In particular, Jenkins complains about the "stop work order" and the subsequent condemnation notice that he received regarding the structures that once existed on his Barger and Keel Street properties, the removal of the salvaged materials from those locations, the expenses he incurred when the City billed him for the removal, the destruction of the corn that he later substituted for the demolished structures, the citation for his allegedly failing to maintain a valid permit to perform renovations at 2049 Culpepper Street, and the April 2004 arrest regarding the absence of a smoke detector on West Main.
As discussed above, Jenkins has failed to create a jury issue regarding Killebrew's involvement in the arrest. See supra Pt. III.A. The court therefore does not discuss the arrest in evaluating Jenkins' First Amendment retaliation claims against Defendant Killebrew.
To prevail under § 1983 on his First Amendment retaliation claim against Defendant Killebrew, Jenkins must show (1) that Jenkins was engaging in constitutionally protected conduct, (2) that Killebrew then took or caused "adverse action" to be taken against Jenkins that would deter a person of ordinary firmness from continuing to engage in the protected conduct, and (3) that Killebrew was motivated at least in part by Jenkins' protected conduct. E.g., Mezibov v. Allen, 411 F.3d 712, 717 (6th Cir. 2005), reh'g en banc denied, No. 03-3973, 2005 U.S. App. LEXIS 21401, at *1 (6th Cir. Sept. 29, 2005) (citing Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc)). For the purpose of deciding this motion, the court assumes that Jenkins' petition constituted protected speech under the Constitution. The court also assumes that the various actions taken against Jenkins and his real estate would deter a person of ordinary firmness from continuing to criticize the local government. Defendant Killebrew is still entitled to summary judgment on this claim, first because Jenkins produced no evidence that Defendant Killebrew took or caused some of the alleged adverse actions, and second because any adverse actions that Defendant Killebrew arguably did "take" were in no way shown to be motivated in part by Jenkins' protected speech.
Jenkins produced no evidence creating a genuine issue as to whether Defendant Killebrew ordered or allowed the condemnation/destruction of the structures on Barger and Keel in part because of Jenkins' protected conduct. In his deposition, Defendant Killebrew testified:
QUESTION: Do you remember conflict with Joe Jenkins and the city where two houses were torn down, two of his houses were torn down, or he was required to demolish them?
ANSWER: Yes.
QUESTION: Why did you require him to tear those two houses down?
ANSWER: Why did I require him to?
QUESTION: Uh-huh.
ANSWER: Jim Pillow told me that they violated the living standards under the ordinance.
QUESTION: All right.
Killebrew Dep. at 46, ¶¶ 4-14. Later, Defendant Killebrew testified:
QUESTION: Do you find that there might be a connection between [the petition] and [the adverse actions]?
. . . .
ANSWER: . . . I never knew Joe Jenkins filed a petition or had a petition. I never knew it was his petition. An alderman actually found part of the petition in the car wash and brought it and showed it to me. And then another alderman shows up with this petition. And, honestly, I didn't know who started it.Id. at 81, ¶¶ 10-22. The above testimony has not been controverted, save Jenkins' assertion that, "Defendant George Killebrew forced me to tear down my rental units at 3029 K[ee]l and 2030 Barger Street in the City of Milan, Tennessee, because of the exercise of my First Amendment rights." Jenkins Aff. ¶ 7; see also id. ¶ 4 (Jenkins swearing that he is "aware that . . . Killebrew . . . took action against [Jenkins] because [he] circulated a petition[,]" but not setting forth the facts upon which this awareness is based). Besides this assertion, there is no direct or circumstantial evidence that Defendant Killebrew's reliance on Defendant Pillow's report was even slightly motivated by a desire to exact revenge against Jenkins for exercising constitutional rights. And the court agrees with Defendant Killebrew that Jenkins' suspicions about Killebrew's motive — no matter how well-founded they might be — do not create genuine issues of material fact within the meaning of Rule 56(c). See Street v. J.C. Bradford Co., 886 F.2d 1472, 1479 (6th Cir. 1989) (noting that "[c]ases involving state of mind issues are not necessarily" foreclosed from disposition on summary judgment) (citation omitted); accord Mitchell v. Toledo Hospital, 964 F.2d 577, 585 (6th Cir. 1992) (stating, in a case requiring the plaintiff to show some improper motive, that "rumors, conclusory allegations and subjective beliefs . . . are insufficient" to rebut a defendant's articulated motive "as a matter of law"); Devine v. Jefferson County, No. 3:99CV-695-S, 2000 U.S. Dist. LEXIS 21677, at *8-9 (W.D. Ky. Dec. 1, 2000) (applying Mitchell to a § 1983 First Amendment retaliation claim), aff'd, 40 Fed. App'x 924 (6th Cir. 2002).
Regarding the subsequent removal of the salvaged materials, Killebrew maintains that, "[he] was not involved in the removal . . . of the remains of the demolished structures formerly located [on] Keil and . . . Barger Streets." Killebrew Aff. ¶ 7. Jenkins here attempts to create a genuine dispute again by relying on Killebrew's deposition, where Killebrew suggests that he actually did make the decision to condemn the former structures. Jenkins' Resp. to Def. Killebrew's Mot. Summ. J. at 4, G.; Killebrew Dep. at 46, ¶¶ 13-14 (Killebrew testifying that he formally approved the condemnation because "Jim Pillow told [him] that they violated the living standards under the ordinances"). The problem is that this testimony has nothing to do with whether Killebrew took part in the subsequent removal of the salvage that once constituted the condemned structures. The removal of the remains occurred more than one year after the destruction of the structures. Compare Am. Compl., Ex. B. with id., Ex. C. Killebrew's participation in the condemnation decision does not create a dispute as to his participation in the subsequent removal. Therefore, Jenkins has failed to genuinely dispute Killebrew's denial of involvement in that removal.
Although Killebrew's affidavit also denies a role in the destruction of Jenkins' corn, Killebrew Aff. ¶ 12, that denial is contradicted plainly by Defendant Pillow's deposition testimony, see Pillow Dep. at 84-85, ¶¶ 21-24 1-5. The court therefore finds that there is a disputed issue of fact as to whether Defendant Killebrew ordered his subordinates to destroy Jenkins' corn. Even so, for the reasons discussed supra, at 16-18, the court finds no evidence that a reasonable jury could rely upon to conclude that Defendant Killebrew destroyed Jenkins' corn because of the petition criticizing Defendant Pillow. Jenkins' repeated insistence that he is "aware that Defendant Killebrew retaliated against him for the exercise of his First Amendment rights," see Jenkins' Resp. to Def. Killebrew's Mot. Summ. J. at 4, C. (citing Jenkins' affidavit), could not be relied upon by a reasonable fact finder to hold Defendant Killebrew personally liable for violating the Constitution.
For the same reason, the court finds that Jenkins has not satisfied his burden as the non-movant on the issues pertaining to his 2049 Culpepper Street property. In his deposition, Killebrew conceded that he had final discretion as to whether the City would force Jenkins into court over Jenkins' citation for allegedly failing to maintain a valid building permit. See Killebrew Dep. at 67, ¶¶ 20-22. Killebrew also testified, however, that he decided to proceed in municipal court because "somebody came in and [advised Killebrew] that [Jenkins] violated the permit law." Id. at 67, ¶¶ 8-9; see also id. at 68, ¶¶ 13-14 (testifying that, "from what [Killebrew] know[s] . . . [Jenkins'] permit is void"). Jenkins' "aware[ness]" that Defendant Killebrew actually had a motive to prosecute Jenkins in retaliation for Jenkins' free speech is without any independent direct or circumstantial verification. See Jenkins Aff. ¶ 5 ("Defendant George Killebrew retaliated against me because of the exercise of my First Amendment rights."); but see, e.g., Mitchell v. Toledo Hospital, 964 F.2d 577, 585 (6th Cir. 1992) (a plaintiff's subjective beliefs about a defendant's improper motive are not "evidence"). Without evidence, the court must disregard Jenkins' "aware[ness]" and find undisputed the sworn testimony that Defendant Killebrew's actions were motivated exclusively by the belief that Jenkins had violated City law.
Based solely on the materials that Jenkins presented in response to Defendant Killebrew's motion for summary judgment, no reasonable jury could find in favor of Jenkins on the claim that Defendant Killebrew took any adverse action against Jenkins entirely or in part because Jenkins' had exercised his First Amendment rights. The court therefore grants summary judgment to Defendant Killebrew on that claim.
IV.
For the reasons set out above, Defendant Killebrew's motion [Dkt. # 20] is GRANTED. Jenkins' has failed to state either a substantive due process claim or a conspiracy claim under § 1983, and the court DISMISSES both claims. The court also finds that Defendant Killebrew is entitled to summary judgment on Jenkins' First and Fourth Amendment claims under § 1983. Accordingly, Jenkins' First and Fourth Amendment § 1983 claims against Defendant Killebrew in his individual capacity are likewise DISMISSED. Because it has never been addressed, Jenkins' § 1983 Equal Protection claim against Defendant Killebrew remains pending.
This aspect of the court's order applies equally to the substantive due process and conspiracy claims that are alleged against the other defendants.
IT IS SO ORDERED.