United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR
V. PARKER U.S. DISTRICT JUDGE
a civil rights action arising from Plaintiff Robert Lee's
unsuccessful candidacy for Bay County Sheriff in 2012 and
2016. In his First Amended Complaint, Plaintiff alleges that
Defendants conspired to infringe his First Amendment rights
in violation of 42 U.S.C. § 1985(3) and deprived him of
his rights to equal protection in violation of 42 U.S.C.
§ 1983. Presently before the Court is
Defendants' motion for summary judgment, filed pursuant
to Federal Rule of Civil Procedure 56 on June 14,
2017. (ECF No. 39.) The motion has been fully
briefed. (ECF Nos. 47, 52.) Finding the facts and legal
arguments sufficiently presented in the parties' filings,
the Court is dispensing with oral argument pursuant to
Eastern District of Michigan Local Rule 7.1. For the reasons
that follow, the Court is granting Defendants' motion.
2012, shortly after retiring from his position as a deputy
with the Bay County Sheriff's Department, Plaintiff
announced his candidacy for Bay County Sheriff. Plaintiff ran
against long-time incumbent Defendant John Miller
(“Miller”). Defendant Troy Cunningham
(“Cunningham”) was the Undersheriff for Bay
County and a supporter of Miller. Defendant Michael Shore
(“Shore”), a road patrol sergeant with the
sheriff's department, and Defendant Art Kleinert
(“Kleinert”) a sheriff's department deputy,
also supported Miller.
County Sheriff, Miller oversaw the county's jail and
appointed its administrator, Defendant Troy Stewart
(“Stewart”). Stewart also supported Miller's
alleges that Miller gave favorable treatment to Bay County
employees who supported his candidacy and “crack[ed]
down” on employees who supported Plaintiff. For
example, Plaintiff claims Miller failed to discipline Bay
County Sheriff's Department corrections officer Lori
Redman when she physically assaulted another officer because
she was a supporter of Miller's campaign and her husband
was Miller's campaign manager. According to Plaintiff,
Miller terminated Bay County Sheriff's Department deputy
Jason Holsapple because Holsapple vocally supported
lost to Miller in the 2012 election by less than 300 votes.
On February 14, 2014, Plaintiff officially declared his
candidacy for sheriff in the 2016 election.
thereafter, on April 8, 2014, Plaintiff attended a meeting of
the Bay County Commissioners. At the meeting, Plaintiff
publicly criticized Miller for his absenteeism as sheriff.
Plaintiff also made public statements about Shore and
Stewart. Specifically, Plaintiff asserted that Shore acted
negligently in responding to a 911 call reporting the death
of an elderly woman under non-suspicious circumstances at a
home in the county. Shore refused to send a sheriff's car
to retrieve the body, resulting in the deceased's family
having to wait for a Michigan State trooper to respond.
Plaintiff alleged that Stewart committed a felony by
smuggling a “controlled substance” into the jail
for an inmate. The substance was a prescription-strength
mouthwash called Peridex to treat the inmate's serious
and Shore separately sued Plaintiff for defamation based on
the statements Plaintiff made about them at the
commissioners' meeting. Plaintiff claims the lawsuits
were frivolous. According to Plaintiff, Shore told Neil
Papin, a janitor in the sheriff's department, that the
purpose of the lawsuits was to make Plaintiff spend his money
on litigation, so he would have insufficient funds for his
campaign for sheriff during the 2016 election. (Pl.'s
Resp. Br. at 14, ECF No. 47 at Pg ID 1612.) Plaintiff cites
Papin's deposition transcript in support of this
assertion; however, no transcript has been filed in this
case. Plaintiff did file an affidavit from Papin
on August 9, 2017. (ECF No. 50.) Nowhere in his affidavit,
however, does Papin mention the lawsuits or make a statement
supporting this factual assertion. (See id.)
December 2015, the state court ruled that Plaintiff's
statements regarding Stewart were defamatory. (Defs.'
Mot. Ex. 7 at 1, ECF No. 41-7 at Pg ID 1372.) Similarly, the
court concluded that Plaintiff's statements regarding
Shore “assert[ed] facts that can be proven
false.” (Id. Ex. 8 at 3, ECF No. 41-8 at Pg ID
1392.) The judge dismissed Stewart's and Shore's
lawsuits, however, concluding that they were public officials
and thus needed to meet a heightened evidentiary standard to
prove their claims-that is, they needed to prove that
Plaintiff made the statements with actual malice.
(Id., Ex. 7 at 1, ECF No. 41-7 at Pg ID 1372; Ex. 8
at 4, ECF No. 41-8 at Pg ID 1395.) The court found
insufficient evidence to support a finding of malice.
(Id. Ex. 7 at 5-6, ECF No. 41-7 at Pg ID 1376-77;
Ex. 8 at 7, ECF No. 41-8 at Pg ID 1396.)
appealed the trial court's decision. On June 8, 2017, the
Michigan Court of Appeals reversed. (Id., Ex. 4, ECF
No. 41-4.) The appellate court concluded that “the
evidence … would be sufficient for a rational trier of
fact to find by clear and convincing evidence that
defendant's [Lee's] statements were made with
reckless disregard for their truth.” (Id. at
2, Pg ID 1268.)
filed motions in the state trial courts seeking sanctions
against Stewart and Shore pursuant to Michigan Compiled Laws
Section 600.2591. (Id. Ex. 7, ECF No. 41-7 at Pg ID
1383; Ex. 8, ECF No. 41-8 at Pg ID 1397.) Section 600.2591
requires the court to award costs and fees incurred
by a party to an action where the action was frivolous. Mich.
Comp. Laws § 600.2591. The state trial judge denied
Plaintiff's motions. (Defs.' Mot., Ex. 7, ECF No.
41-7 at Pg ID 1383; Ex. 8, ECF No. 41-8 at Pg ID 1397.)
did not run for re-election in 2016, and announced his
retirement as Bay County Sheriff effective at the end of
2016. Plaintiff ran in the Democratic primary against
Cunningham and Terry Spence. In response to Defendants'
motion, Plaintiff alleges that Miller, Cunningham, Shore and
others “actively intimidated general citizens in the
community that supported [Plaintiff].” (Pl.'s Resp.
Br. at 15, ECF No. 47 at Pg ID 1613.) Plaintiff deposed four
Bay County residents who, according to Plaintiff, testified
that Shore and other sheriff department deputies intimidated
them and removed their election materials (e.g., yard signs
and vehicle bumper stickers) supporting Plaintiff for sheriff
during the 2016 election. (See, id., Ex. 8, ECF No.
48-8, citing Exs. 55, 57-59.)
his deposition in this matter, one of these witnesses, Thomas
Jane, could not identify the individuals who came to his home
and asked him to remove Plaintiff's campaign signs from
his front lawn. (Defs.' Mot., Ex. 12 at 9-10, ECF No.
37-13 at Pg ID 878-79.) Jane could not even say that the men
were sheriff's department employees, only that they
represented someone running against Plaintiff. (Id.
at 7, Pg ID 876.) While Jane signed an affidavit stating that
one of the men was Shore, he testified at his deposition that
he could not say that one of them was Shore and he was unable
to identify Shore who was present at the deposition.
(Id. at 10, Pg ID 879.) Jane testified, however,
that he still voted for Plaintiff. (Id. at 19, Pg ID
witness, Stephen Beson, also had a yard-sign supporting
Plaintiff in his front yard. (Defs.' Mot. Ex. 11 at 7,
ECF No. 37-12 at Pg ID 831.) Beson testified that Shore and
another officer came to his home and identified themselves as
sheriffs working on Cunningham's campaign. (Id.
at 9, ECF No. 833.) Beson further testified that they told
him it “would be in [his] best behalf” to remove
Plaintiff's sign and replace it with a Cunningham sign.
(Id.) Shore told Beson that it was against
Beson's “better decision” not to remove
Plaintiff's sign because Plaintiff “had cost lots
and lots of money to the county and shouldn't be the
sheriff, and that if he became the sheriff that he [Shore]
wouldn't be able to go up the ladder.”
(Id. at 9, 26, Pg ID 833, 859.)
testified that he reported the incident the following day to
Michigan State Police Officer Bill Arndt. (Id. at 8,
ECF No. Pg ID 832.) Arndt told Beson that he was going to
talk to Cunningham that day. (Id. at 15, Pg ID 839.)
Later that day, Beson received a call from Cunningham who
apologized for what Shore said and indicated it would never
happen again. (Id. at 15, 26, Pg ID 839, 850). Beson
still voted for Plaintiff. (Id. at 30, Pg ID 854.)
witness, James Murphy, testified that Shore and another
sheriff's deputy came by his house sometime in June 2015,
and Murphy saw Shore remove a sign supporting Plaintiff's
campaign from the south corner of Murphy's property.
(Defs.' Mot., Ex. 10 at 7-8, ECF No. 37-11 at Pg ID
787-78.) Shore or the unidentified deputy also removed two
campaign bumper stickers from Murphy's trucks.
(Id. at 13, Pg ID 793.) Murphy spoke with Shore and
the other deputy, but Murphy did not ask why they removed the
campaign materials. (Id. at 9, Pg ID 789.) In fact,
Murphy indicated that he told them to go ahead and take the
materials. (Id. at 32, Pg ID 812.) Murphy testified
that he did not really care that they took the sign or bumper
stickers, and he did not care whether Plaintiff was elected
sheriff. (Id. at 28, 31, Pg ID 807, 811.) He only
displayed the campaign materials because Papin asked him to.
(Id. at 28, Pg ID 808.)
deposition, Murphy was not able to identify Shore, who was
present. (Id. at 22, Pg ID 802.) Murphy testified
that he had never seen Shore before. (Id.) Murphy
signed an affidavit stating that he and his son “were
coerced into voting for someone who we didn't want to
vote for.” (See Pl.'s Resp., Ex. 58 at 3,
ECF No. 48-58 at Pg ID 2310.) Murphy testified, however, that
he did not vote in the election for sheriff. (Defs.'
Mot., Ex. 10 at 22, ECF No. 37-11 at Pg ID 802.) When asked
why not, Murphy answered: “I don't vote.”
son Steve also was deposed during this litigation. (Pl.'s
Resp., Ex. 60, ECF No. 48-60.) Steve signed the same
affidavit as his dad about the incident with the removal of
the campaign materials (see Pl.'s Resp., Ex. 58,
ECF No. 48-58); however, Steve's testimony reflects that
he has no first-hand knowledge regarding many of the facts
asserted in the affidavit. Steve saw the yard sign and bumper
stickers for Plaintiff being removed, but assumed his father
had talked to the men who did it. (Id. at 8, Pg ID
2341.) Steve testified that he spoke to the men, but only
generally about the campaign, such as when the election was
and who the candidates were, and that they told him to
register to vote because he was not registered. (Id.
at 9, Pg ID 2342.)
alleges in his First Amended Complaint that Kleinert and
Cunningham also engaged in “illegal trash pulls”,
which involved taking trash bags from Plaintiff's
property to the sheriff's department and searching
through them for adverse information to use against Plaintiff
in the election. (Pl.'s First Am. Compl. ¶¶
71-77, ECF No. 3 at Pg ID 37.) Plaintiff also alleges that
Kleinert, at Cunningham's direction, removed trash from
Plaintiff's property on two occasions within the last ...