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Cook v. Greenleaf Township

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

May 15, 2018

SHELLY COOK, et al., Plaintiffs,
GREENLEAF TOWNSHIP, et al., Defendants.


          MARK A. GOLDSMITH United States District Judge.

         This matter is before the Court on Defendants Greenleaf Township, Judy Keller, Randall Schuette, Ken Brown, and Rosie Quinn's motion for partial summary judgment (Dkt. 40). The issues have been fully briefed, and a hearing was held on May 2, 2018. For the reasons stated below, the Court grants in part and denies in part Defendants' motion.

         I. BACKGROUND

         Plaintiffs Shelly Cook and Christina Gibbard, residents of Greenleaf Township, are dedicated to staying informed about their local governance. Since 2015, with the exception of one meeting, both women have attended every Greenleaf Township board meeting and planning commission meeting that has been held. They have made a point to videotape each meeting, and have provided public comment on issues and proposals that are before the township.

         This case concerns the events that took place during and after the township board meeting on October 18, 2016. The meeting was called in order to vote on a proposed settlement between Greenleaf and Kirk Winter, the township's former supervisor. Compl. ¶ 29 (Dkt. 1). Winter had been recalled from office after engaging in misconduct, and had sued the county for apparently denying a license for his truck business. Id. ¶¶ 26-27. The meeting was not called by Rodney Lazure, the current township supervisor, and would only be permitted under state law if a majority of the township board called for the meeting in writing. Id. ¶ 16. Aware of this fact, Gibbard questioned the township clerk, Judy Keller, at the beginning of the meeting whether a majority of the board had signed a document calling the special township board meeting, and whether Lazure had been notified of this decision. Gibbard Dep., Ex. 2 to Defs. Mot., at 29 (Dkt. 40-1).

         During the board meeting, Cook and Gibbard recorded the meeting with their video cameras. Id. at 27. They also gave public comment during the meeting, during which Gibbard questioned the propriety of the township's proposed settlement with Winter, and noted that the township was also facing a separate $70, 000 lawsuit from another individual. Compl. ¶¶ 29-30. Plaintiffs both testified that they were not prevented from speaking or recording during the meeting. Gibbard Dep. at 28; Cook Dep., Ex. 1 to Defs. Mot., at 24-27 (Dkt. 40-1). After the meeting, as Gibbard was shutting off her camera, Keller told her to meet her in Keller's office, so that Keller could provide her with the document indicating that a majority of the board had called the October 18, 2016 meeting, and that they had notified Lazure of this decision. Gibbard Dep. at 35.

         Gibbard testified that she followed Keller into her office, at which point Keller began berating her regarding the $70, 000 lawsuit that Gibbard had mentioned during the board meeting. Id. Keller yelled that she was unaware of this lawsuit, and wanted Gibbard to tell her more about it. Id. Gibbard testified that as Keller was speaking, she took her video camera out of her purse, turned it on, and pointed it towards the ground so that she could record what was happening without putting the camera in Keller's face. Id. at 36. Gibbard testified that Keller “came up to me and pushed her breasts into my body.” Id. at 35. The Court's review of Gibbard's recording indicates that Keller stormed towards Gibbard and stood close to her; it is unclear from the video whether physical contact was made. Keller then informed Gibbard that she would not be giving her the document indicating that the majority of the board consented to the meeting, and that if Gibbard wanted it, she could file a request under Michigan's Freedom of Information Act. As Gibbard turned to leave, Quinn, the township treasurer, attempted to turn off Gibbard's camera. Id. at 36. Gibbard moved her camera out of the way and exited the office into what Gibbard described as the warehouse of the township hall. Id. at 42.

         After Gibbard exited the office, Keller continued to yell at her, and ordered her out of the building. Id. at 42-43. The Court's review of Gibbard's recording indicates that Keller also exited the office into the warehouse, and began complaining that she had been accused of lying. Keller can be seen on the tape looking over at Gibbard and observe that she is being recorded, at which she points she runs at Gibbard and grabs the camera from her. Gibbard testified that she thought she was about to be taken to the ground, but that a man stepped between them. Id. at 43. Gibbard stated that Keller attempted to hit her as the man stood in the way. Id.

         Cook heard the commotion and came out to see Keller charge at Gibbard, and also witnessed Keller's husband grab Gibbard's hand in an attempt to take the camera. Cook Dep. at 35. As the altercation between Gibbard and Keller's husband was occurring, Keller walked quickly towards Cook, told her to “shut that damn camera off” and then proceeded to turn “slap off” Cook's camera. Id. at 40.

         Keller testified that she never physically touched the Plaintiffs, but acknowledged that she did attempt to shut off Gibbard's camera. Keller Dep., Ex. 6 to Pl. Resp., at 59-60 (Dkt. 43-7). She also acknowledged that she “aggressively approached both of them, ” and that she told a police officer that night that “it may have been assault.” Id. at 59.


         A court must grant “summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “In making this determination, the court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor.” U.S. S.E.C. v. Sierra Brokerage Servs., Inc., 712 F.3d 321, 327 (6th Cir. 2013). The court must determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252 (1986). In considering the material facts in the record, a court must recognize that “[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Id. at 422. In this case, Defendant bears the burden of proving that any coverage under the policy is negated by an exclusion. Monteleone v. The Auto Club Grp., 113 F.Supp.3d 950, 959 (E.D. Mich. 2015). “Where the moving party has the burden . . . his showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party.” Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986) (citation and internal quotation marks omitted).

         III. ANALYSIS

         Plaintiffs bring the following claims against Defendants: (i) First Amendment retaliation; (ii) assault and battery; (iii) violation of Michigan's Freedom of Information Act (“FOIA”), Mich. Comp. Laws § 15.240a; and (iv) violation of Michigan's Open Meetings Act (“OMA”), Mich. Comp. Laws § 15.261, et seq. In their motion, Defendants seek summary judgment on the First Amendment retaliation, FOIA, and OMA claims. The Court will address each in turn.

         A. First Amendment Retaliation

         Plaintiffs first argue that each of the individual Defendants committed acts of First Amendment retaliation against them.[1] “In the specific context of a § 1983 action, the non-moving party must demonstrate a genuine issue of material fact as to the following two elements: 1) the deprivation of a right secured by the Constitution or laws of the United States and 2) [that] the deprivation was caused by a person acting under color of state law.” Miller v. Calhoun Cty., 408 F.3d 803, 812 (6th Cir. 2005) (internal citation and quotations omitted).

         Plaintiffs argue that the following actions were undertaken under color of state law in order to deprive them of their First Amendment rights: (i) Keller assaulted both Plaintiffs because of their statements during the October 18, 2016 meeting, their video recording, and because of Gibbard's request for documentation proving that a majority of the township board called the special meeting; (ii) Quinn attempted to stop Gibbard's recording while Gibbard was requesting the documentation; (iii) after the October 18, 2016 meeting, Schuette, a township official, recorded Gibbard in close proximity in an attempt to intimidate her, and also cut her off during other board meetings; and (iv) after the October 18, 2016 meeting, Brown, another township official, stated that neither Plaintiff was assaulted. He also stated that Gibbard was “rude” because she requested information from the board and spoke at meetings.[2]

         1. Under Color of State Law

         Defendants argue that the alleged deprivation of Plaintiffs' First Amendment rights were not caused by actions undertaken under color of state law. “Section 1983 is generally not implicated unless a state actor's conduct occurs in the course of performing an actual or apparent duty of his office, or unless the conduct is such that the actor could not have behaved as he did without the authority of his office.” Waters v. City of Morristown, TN, 242 F.3d 353, 359 (6th Cir. 2001). “The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” West v. Atkins, 487 U.S. 42, 49 (U.S. 1988) (internal citation and quotations omitted). “It is firmly established that a defendant in a § 1983 suit acts under color of state law when he abuses the position given to him by the State.” Id. at 49-50. In contrast, “a defendant's private conduct, outside the course or scope of his duties and unaided by any indicia of actual or ostensible state authority, is not conduct occurring under color of state law.” Waters, 242 F.3d at 359.

         a. ...

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