United States District Court, E.D. Michigan, Southern Division
Stephanie Dawkins Davis Mag. Judge.
OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT , DENYING AS MOOT PLAINTIFF'S MOTION
IN LIMINE , AND DENYING AS MOOT PLAINTIFF'S MOTION
FOR APPOINTMENT OF A SPECIAL MASTER 
E. LEVY UNITED STATES DISTRICT JUDGE.
case stems from plaintiff's dissatisfaction with the
existence and allegedly unlawful enforcement of mold
regulations in West Bloomfield Township. Plaintiff's
claim, which includes eight counts ranging from First
Amendment retaliation to defamation, is one of several
ongoing or concluded legal proceedings all stemming from the
same underlying situation. This matter is before the Court on
defendants' motion for summary judgment on all eight
counts. The Court heard oral argument on March 22, 2018. For
the reasons set forth more fully below, defendants'
motion is GRANTED.
plaintiff alleges that individuals within West Bloomfield
Township unlawfully withheld a building permit to do
renovation work on his property. The core of plaintiff's
arguments are twofold: first, that West Bloomfield
Township's mold remediation requirements are
constitutionally invalid; and second, that defendants'
enforcement of the Township's mold remediation
requirements with respect to plaintiff was unlawful because
it was retaliatory. Defendants assert their building
construction codes are constitutionally valid, their
treatment of plaintiff was entirely in accordance with the
governing construction ordinances in place in the Township,
and their actions were not motivated by retaliation.
factual record in the case is voluminous. However,
plaintiff's written and oral argument provided limited,
if any, direction to the Court to assist in locating evidence
to support his claims. The Court has no duty to scour the
record to find factual support for a party's claims.
Magnum Towing & Recovery v. City of Toledo, 287
Fed.Appx. 442, 449 (6th Cir. 2008) (“It is not the
district court's . . . duty to search through the record
to develop a party's claims; the litigant must direct the
court to evidence in support of its arguments before the
court.”) The Court reviewed the information put forward
by both parties and allowed both parties to provide
supplemental briefing to clarify the factual support for
their arguments. What follows is a brief recitation of the
relevant timeline of disputed events.
December 12, 2014, plaintiff purchased the property
(“Littletell”) involved in the present dispute.
The property was bank-owned before plaintiff purchased it.
West Bloomfield Township code official and plumbing inspector
Charles Woodward conducted several routine vacant property
inspections in 2014, before and after plaintiff purchased
Littletell. The first time mold was allegedly identified on
the property was during one of those inspections: on August
25, 2014, Woodward observed a substance that appeared to be
mold on the new drywall and a recently demolished wall in a
family room area. (Dkt. 20-2 at 9.) Another routine
inspection took place on October 2, 2014; neither the
property log nor the vacant property compliance request
issued to the bank following that inspection indicated a
problem with mold. (Dkt. 20-4 at 3-4; Dkt. 20-5 at ¶
December 18, 2014, Woodward conducted another routine
property inspection. After this inspection, the property log
indicated “mold visible on new drywall and recently
demoed wall in family room.” (Dkt. 20-4 at 3.) The
accompanying vacant property compliance request, dated
December 19, 2014, states “[m]old in home, required a
licensed contractor. Mold visible on new drywall in family
room.” (Dkt. 20-5 at 5.) This inspection was completed,
and these records produced, prior to any meeting between
plaintiff and defendants.
December 19, 2014, plaintiff went to the West Bloomfield
Township offices to file a permit to remove closets between
two bedrooms. (Dkt. 20-6 at 11.) It was during this visit to
the offices that plaintiff met Woodward, and when he was
alerted that “there was mold in the house and that it
was hazardous and that [plaintiff] had to get it
remediated.” (Id.) Plaintiff indicated that it
would be difficult to remediate the mold because the roof was
leaking; Woodward initially indicated that no one would be
going in the house and no permits would issue until the mold
was remediated, but ultimately agreed to issue a permit for
roof work in advance of the remediation. (Id.)
Plaintiff states that during the conversation, Woodward was
“combative and belligerent” and was unwilling to
clarify for him what the precise requirements were for the
mold to be satisfactorily remediated. (Id.)
months following the “confrontational”
conversation with Woodward, plaintiff applied for and
received several building permits, including for roof
repairs, a furnace replacement, duct work, window
replacements, electrical work, plumbing, and bath venting.
(Dkt. 20-11 at 1-13.) On February 3, 2015, plaintiff
“decided [he] was going to move into the house and . .
. wanted to broaden the permit.” (Dkt. 20-6 at 14.) On
that day, plaintiff made another visit to the West Bloomfield
Township offices. During that visit, defendant Gary Crimaldi
“asked if [plaintiff] had worked out that mold thing
with [defendant] Woodward.” (Id.) He confirmed
that he had not.
submitted his revised (“broadened”) permit
request to Crimaldi via email just prior to their meeting on
February 3, 2015. Plaintiff was under the impression that the
permit had been granted (Id.) but the Township
confirms that the initial permit was not issued because it
was incomplete, and the revised permit application was not
issued because the mold on the property had not yet been
remediated. (Dkt. 20-13 at 6 (email from Crimaldi, stating
“[t]o approve a certificate of occupancy on this
property we need assurance from a professional that the
property is safe for habitation.”).) Plaintiff did the
work on the property despite the fact that the general
construction permit had not been issued. (Dkt. 20-6 at 15.)
plaintiff completed work that was beyond the scope of the
permits that had been issued, West Bloomfield Township
officials placed their first “stop work order” on
the Littletell property on February 23, 2015. (Dkt. 20-4 at
3.) Plaintiff removed the “stop work orders” and
continued to do work on the property. (Id.)
October 12, 2015, the property log indicates that
“[m]old was removed.” (Id. at 2.) That
same day, as ordered by Oakland County Circuit Court Judge
Chabot, West Bloomfield Township paid for a mold inspection.
(Dkt. 20-16.) The mold inspection revealed the presence of
several types of mold, and indicated that “further mold
remediation corrective action is necessary.” (Dkt.
20-18 at 2.)
October 28, 2015, West Bloomfield Township initiated code
enforcement actions against plaintiff. (Dkt. 20-19.) On that
day, plaintiff received a letter from Erik Beauchamp, the
Township Code Enforcement Officer, which listed four
violations of the Code of Ordinances for West Bloomfield
Township. (Id.) Plaintiff was instructed to correct
all violations prior to November 4, 2015, or “court
action may be initiated.” Plaintiff was also notified
that he had a right to appeal the notice and order to the
Construction Board of Appeals for West Bloomfield Township
within 20 days of the filing of the notice. (Id. at
did not correct the violations, and on November 13, 2015,
plaintiff received a summons for a court appearance on
November 25, 2015 regarding property violations. Two
additional summonses followed for violations of stop work
orders. (Dkt. 20-20.) Plaintiff pursued several avenues to
challenge the Township's mold remediation requirements,
including a motion in the district court challenging the
constitutionality of International Property Maintenance Code
108.1.3 and an application with the Construction Board of
Appeals. Both efforts were unsuccessful. (Dkt. 20-21, Dkt.
20-22, Dkt. 20-23.) Plaintiff also filed two state court
civil suits against the Township, one of which was dismissed
(Dkt. 20-24), and the second of which is pending.
judgment is proper when “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). The Court may not grant summary judgment if “the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court
“views the evidence, all facts, and any inferences that
may be drawn from the facts in the light most favorable to
the nonmoving party.” Pure Tech Sys., Inc. v. Mt.
Hawley Ins. Co., 95 Fed.Appx. 132, 135 (6th Cir. 2004)
(citing Skousen v. Brighton High Sch., 305 F.3d 520,
526 (6th Cir. 2002)).
Count I: Violation of 42 U.S.C. § 1983 for First
Amendment Retaliation against Individual Defendants and West
Count I, plaintiff asserts that he engaged in protected
conduct when he spoke out in opposition against the
defendants regarding their interpretation, application, and
enforcement of their ordinances, codes, and regulations. This
public comment took the form of written communications, court
actions, and hearings before the Construction Board of
Appeals for West Bloomfield Township. (Dkt. 1 at 33-34.)
Plaintiff asserts that defendants unlawfully retaliated
against him for his speech by action including, but not
limited to “making false statements about [plaintiff],
instituting criminal proceedings against [plaintiff], issuing
fines, citations, stop work orders, and other penalties
against [plaintiff], as well as withholding permits and
services to the point that other persons of ordinary firmness
would have been deterred from continuing to engage in
[protected conduct.]” (Dkt. 1 at 39.)
individual defendants assert that they are entitled to
summary judgment because they have qualified immunity against
plaintiff's First Amendment claim. “[G]overnment
officials performing discretionary functions are generally
shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). When “a defendant raises qualified immunity
as a defense, the plaintiff bears the burden of demonstrating
that the defendant is not entitled to qualified
immunity.” Everson v. Leis, 556 F.3d 484, 494
(6th Cir. 2009).
an official is entitled to qualified immunity depends on a
two-pronged inquiry. “First, a court must decide
whether the facts that the plaintiff has alleged or shown
make up a violation of a constitutional right. . . . Second,
if a plaintiff has satisfied this first step, the court must
decide whether the right at issue was ‘clearly
established' at the time of the defendant's alleged
misconduct.” Pearson v. Callahan, 555 U.S.
223, 232 (2009). For a right to be clearly established, the
law “must dictate, that is truly compel (not just
suggest or allow or raise a question about), the conclusion
for every like-situated, reasonable government agent that
what defendant is doing violates federal law in the
circumstances.” Gragg v. Ky. Cabinet for Workforce
Dev., 289 F.3d 958, 964 (6th Cir. 2002).
case, plaintiff is alleging that his First Amendment rights
were violated. To prove a First Amendment retaliation claim,
“a plaintiff must show that (1) he was participating in
a constitutionally protected activity; (2) defendant's
action injured plaintiff in a way likely to chill a person of
ordinary firmness from further participation in that
activity; and (3) in part, plaintiff's constitutionally
protected activity motivated defendant's adverse
action.” Center for Bio-Ethical Reform, Inc. v.
City of Springboro, 477 F.3d 807, 821 (6th Cir. 2007).
Court will assume, without deciding, that plaintiff's
activities of speaking out against the defendants and
challenging their interpretation and application of building
code regulations is constitutionally protected activity. The
Court will further assume, without deciding, that
defendants' actions including instituting criminal
proceedings and issuing fines is injurious in a way that is
likely to chill a person of ordinary firmness from further
participation in that activity.
satisfy the third element, plaintiff must
“proffer evidence sufficient to raise the inference
that his or her protected activity was a motivating factor
for the adverse decision. Circumstantial evidence, like the
timing of events or the disparate treatment of similar
individuals, may support this inference. Once a plaintiff has
met his or her burden of establishing that his or her
protected conduct was a motivating factor behind the adverse
conduct, the burden of production shifts to the defendant. If
the defendant can demonstrate that it would have taken the
same action in the absence of the protected activity, it has
met its burden and is entitled to summary judgment if it can
show affirmatively that there is no genuine issue in
Tucker v. City of Richmond, Ky., 388 F.3d 216, 220
(6th Cir. 2004).
case, defendants assert that plaintiff proffers no evidence
that plaintiff's speech was a motivating factor in the
decisions regarding the building permit and inspections.
Defendants do provide evidence that “the individual
defendants did not make or participate in the decision to
place the building permit on hold or withhold
inspections.” Additionally, they proffer evidence that
there was no disparate treatment because the Township
required mold testing from other similarly situated property
owners. Finally, defendants point to evidence that
the same action would have been taken even in the absence of
any alleged protected conduct: plaintiff's permit was not
issued because his application was incomplete. (Dkt. 20-7 at
5-6 (defendant Crimaldi's deposition testimony describing
the regular process of verifying the completeness of a
building permit application).) Defendants emphasize that
plaintiff admits that “he was informed on December 19,
2014, before he ever began [engaging in the allegedly
protected conduct], that no permit would be issued and that
no one could go into the house.” (Dkt. 20-6 at
points to an extensive email conversation between plaintiff
and individual defendants to support his assertion that
defendants' “prior, protected conduct was a
substantial or motivating factor leading to the alleged
retaliatory action.” (Dkt. 20-13.) Plaintiff's
brief does not direct the Court to a particular portion of
the eleven-page exchange. At oral argument, plaintiff argued
that the portion of the email correspondence between
defendant Woodward and plaintiff, in which Woodward
emphasized that his credentials would not be questioned, was
sufficient circumstantial evidence for the Court to conclude
that defendant's conduct was retaliatory.
argument that defendants “persisted in withholding [ ]
services even after [the State rejected] defendants'
purported legal authority for withholding such
services” does not support his claim that defendants
were acting in a retaliatory manner. It simply affirms that
defendants cited the incorrect regulatory provision when
first questioned by plaintiff.
light of this, plaintiff has failed to raise a material
question of fact regarding defendants' motive for failing
to issue a building permit. Defendants have proffered
evidence to demonstrate that - from the first inspection of
plaintiff's property after he purchased it - mold was
identified and the permit was put on hold. To the extent that
plaintiff engaged in protected conduct after the permit was
put on hold, he has provided no evidence that his protected
conduct resulted in any further retaliatory action.
Defendants maintained their initial position that the permit
would not issue until the mold was remediated.
the Court finds no question of material fact regarding the
existence of a constitutional violation, defendants are
entitled to qualified immunity. Summary judgment is granted
for the defendants on Count I.
Count II: Violation of Procedural Due Process and Equal
Protection against ...