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Lee v. Miller

United States District Court, E.D. Michigan, Southern Division

December 28, 2017

ROBERT LEE, Plaintiff,
v.
JOHN MILLER, TROY CUNNINGHAM, TROY STEWART, MICHAEL SHORT, and ART KLEINERT, Defendant.

          OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          LINDA V. PARKER U.S. DISTRICT JUDGE

         This is 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.[1] Presently before the Court is Defendants' motion for summary judgment, filed pursuant to Federal Rule of Civil Procedure 56 on June 14, 2017.[2] (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.

         I. Factual Background

         In 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.

         As Bay County Sheriff, Miller oversaw the county's jail and appointed its administrator, Defendant Troy Stewart (“Stewart”). Stewart also supported Miller's candidacy.

         Plaintiff 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 Plaintiff's candidacy.

         Plaintiff 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.

         Shortly 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 dental condition.

         Stewart 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.[3] 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.)

         In 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.)

         Stewart 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.)

         Plaintiff 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.)

         Miller 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.)

         During 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 888.)

         Another 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.)

         Beson 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.)

         A third 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.)

         At the 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.” (Id.)

         Murphy's 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.)

         Plaintiff 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 ...


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