John Paterek v. Village of Armada ( 2015 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0223p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
JOHN W. PATEREK; CYNTHIA S. PATEREK; PATEREK ┐
MOLD & ENGINEERING, INC., │
Plaintiffs-Appellants, │
│ No. 14-1894
│
v. >
│
│
VILLAGE OF ARMADA, MICHIGAN; BEN DELECKE, │
Defendants-Appellees. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:13-cv-13966—David M. Lawson, District Judge.
Argued: June 11, 2015
Decided and Filed: September 8, 2015
Before: KEITH and CLAY, Circuit Judges; MARBLEY, District Judge.*
_________________
COUNSEL
ARGUED: Cindy Rhodes Victor, THE VICTOR LAW FIRM, PLLC, Auburn Hills, Michigan,
for Appellants. Caryn A. Ford, GARAN LUCOW MILLER, P.C., Detroit, Michigan, for
Appellees. ON BRIEF: Cindy Rhodes Victor, THE VICTOR LAW FIRM, PLLC, Auburn
Hills, Michigan, for Appellants. Caryn A. Ford, GARAN LUCOW MILLER, P.C., Detroit,
Michigan, for Appellees.
*
The Honorable Algenon L. Marbley, United States District Judge for the Southern District of Ohio, sitting
by designation.
1
No. 14-1894 Paterek, et al. v. Village of Armada, et al. Page 2
_________________
OPINION
_________________
CLAY, Circuit Judge. Plaintiffs John (“Paterek”)1 and Cynthia Paterek (“the Patereks”),
along with their company Paterek Mold & Engineering, Inc. (“PME”), (collectively “Plaintiffs”),
appeal the district court order granting summary judgment in favor of Defendants Ben Delecke,
Commissioner of the Village of Armada Planning Commission, and the Village of Armada
(collectively “Defendants”), in this § 1983 action. Specifically, Plaintiffs appeal the adverse
judgment on their First Amendment retaliation, substantive and procedural due process, and
equal protection claims. Plaintiffs also appeal the district court’s decision to dismiss two
motions seeking to hold Defendants in contempt of court. Because there are genuine issues of
material fact with respect to three of Plaintiffs’ claims, and because the district court should have
granted one of the motions for contempt, we hereby REVERSE the grant of summary judgment
in favor of Defendants, VACATE the district court’s denial of Plaintiffs’ contempt motion, and
REMAND this case to the district court for further proceedings consistent with this opinion.
BACKGROUND
A. Initial Approval and Zoning Dispute
In 1993, the Patereks—owners of PME, an injection molding company—sought to
relocate their business within Macomb County, Michigan to the Village of Armada. The
Patereks found a former high school auto shop (“the garage”) that suited their needs and
they purchased the building. Unfortunately for the Patereks, the garage was located in a
neighborhood with zoning restrictions that limited commercial activity to “general business,” and
injection molding is classified as a “light industrial activity.” The Patereks could commence
operations at the garage only if they first obtained a Special Approval Land Use permit
(“SALU”) by successfully petitioning the Village of Armada Planning Commission (“the
Planning Commission”).
1
All references to an individual Plaintiff refer to John Paterek, as the salient facts of this dispute are
centered on his interactions with the Village of Aramada in both his professional capacity as a co-owner of PME and
as a private citizen who engages in municipal politics.
No. 14-1894 Paterek, et al. v. Village of Armada, et al. Page 3
On August 2, 1993, the Patereks went before the Planning Commission to advocate for
the issuance of a SALU so that PME could begin operations at the garage; it was the third time
that the Planning commission debated the Patereks’ request. John Paterek believed Village
officials were discouraging the Patereks from moving PME into the Village on account of their
fear that those light-industrial activities might “generate too much noise” and set a “bad
example” for other business in the community. (R. 2-2, June 12 Appeal, PGID 44) Despite any
concerns the officials may have had, the SALU was issued following this third hearing. The
Planning Commission, however, placed the following restrictions on the SALU: a prohibition
against the “outside storage of any materials, supplies, or parts”; a limitation on permissible
operating hours—7:00 a.m. to 8:00 p.m., Mondays through Saturdays; and a limitation on the
number of full-time employees who could work at the garage. Another condition of the SALU
required PME to resurface the parking lot within two years of occupying the garage. Defendant
Ben Delecke, central to this dispute, was one of the Planning Commission members who joined
in the unanimous approval of the time-restricted SALU.
PME commenced operations at the garage sometime in January 1994. The business was
successful, so much so that PME began exceeding its permissible operating hours in order to
meet the demands of a growing customer base. The workload also kept the Patereks from
scheduling to repave the parking lot in time to meet the deadline stipulated in the SALU.2 For
that reason, John Paterek voluntarily went to the Planning Commission in February 1995, and he
apprised that body of the predicament PME was facing. The Planning Commission responded,
first, by reprimanding Paterek that PME should not be asking for additional accommodations
and, next, by suggesting to Paterek that he could always sell the garage and relocate PME outside
of the Village of Armada. Shortly thereafter, on May 3, 1995, the Patereks received a letter
notifying them of the Village’s intent to take legal action against them for failing to comply with
certain provisions of the garage’s SALU; mainly, for failing to construct a retaining wall along
the perimeter of the PME lot and for neglecting to make plans to have the parking lot paved with
a hard surface. The Patereks immediately attempted to remedy the situation by building the
requisite retaining wall, and by repaving the parking lot with crushed limestone (as an
intermediate solution until they repaved with a hard surface).
2
The Patereks’ deadline for the repaving task would not arrive until August of 1995.
No. 14-1894 Paterek, et al. v. Village of Armada, et al. Page 4
John Paterek wrote the Village Council on June 12, 1995, seeking to modify the terms of
the SALU, prospectively, to quash any legal action threatened by the Village of Armada. In his
letter, he requested the following: unrestricted operating hours for PME; the right to add signage
and lighting to a garden he had recently crafted on the PME premises; the right to use a portion
of the PME parking lot as an outside lunch area with a picnic table; the right to hire additional
employees beyond the 14-employee cap; and an extension on his timeline to resurface the
parking lot, or, in the alternative, approval of his crushed limestone lot as being in compliance
with the SALU. Along with these requests, Paterek submitted numerous testimonials from
neighboring businesses commending the Patereks’ positive impact on the neighborhood due to
the improvements PME made to the preexisting property. Following mixed public reaction to
Paterek’s requests, the Village Council directed Paterek to return to the Planning Commission
and seek approval from that body.
Paterek submitted his request to the Planning Commission on July 3, 1995. Following a
lengthy discussion, Defendant Delecke, who had been elevated to Commissioner of the Planning
Commission, moved to reject the majority of Paterek’s requests—to lift the restriction on PME’s
operating hours, to lift the restriction on the number of PME employees, and to afford the
Patereks additional time to repave the PME parking lot. The motion carried upon a unanimous
vote. (The requests for a lunch area with a picnic table and for lighted signage, however, were
both granted.) Paterek appealed the decision to the Village Council. The Village Council
reversed the Planning Commission and further modified the SALU by (a) affording the Patereks
two more years to repave the parking lot, (b) allowing them to hire three more employees, and
(c) easing the restriction on operating hours by extending the daily closing time and allowing for
unlimited hours with respect to any emergency jobs.
Commissioner Delecke attended the Village Council meeting and spoke out against
modifying the SALU for PME’s garage. At that meeting, the Village Council determined that it
should also investigate a decision of the Planning Commission to issue a SALU to a business
associated with Commissioner Delecke. Delecke, at the next Planning Commission meeting,
expressed his displeasure with both of the Village Council’s decisions.
No. 14-1894 Paterek, et al. v. Village of Armada, et al. Page 5
Plaintiffs alleged that following their successful appeal to the Village Council, Delecke
determined to embarrass and harass the Patereks and their business. This harassment included
disparaging John Paterek and maliciously spreading a false rumor that the Patereks had filed for
bankruptcy. Delecke admitted to spreading the rumor, but he claimed that he believed the rumor
to be true.
B. Downtown Development Authority
In 2004, John Paterek was appointed Chairman of the Armada Downtown Development
Authority (“DDA”). Plaintiffs alleged that Delecke campaigned to have Paterek removed from
the time he was initially appointed. This campaign was initially unsuccessful. By 2011, Paterek
not only remained the Chairman of the DDA, he had also been elected Supervisor of Armada
Township.3 Delecke’s harassment, Plaintiffs alleged, steadily intensified following Paterek’s
election to this second leadership role as the top administrative official of the Township, the
political subdivision that encompassed the Village of Armada.
On November 14, 2011, Paterek received a letter from the Village Council, threatening
his removal from the DDA chairmanship. The letter alleged the following bases as valid cause
for Paterek’s removal:
- Blatant disregard of Village Council directives
- Misrepresentation of council directives in public statements
- Failure to follow Government Funds and payment procedures
- Failure to follow Village Council meeting protocol
- Derogatory and threatening behavior exhibited during public meetings of
the Village Council
- Personal attacks on Village Officials
The letter went on to note, “While we respect your absolute right to voice your opinion on these
matters [the administration of other Village bodies], you have demonstrated a pattern of
increasing hostility towards and lack of respect for your fellow public servants which has
compromised your ability to serve on the Armada DDA.”
3
Armada Township is a political subdivision of Macomb County that encompasses the Village of Armada.
No. 14-1894 Paterek, et al. v. Village of Armada, et al. Page 6
Paterek claimed to be shocked upon receiving this letter, and he denied any
wrongdoing—other than having expressed his opinions on matters of public concern. He
promptly replied to the letter by seeking clarification and requesting any and all evidence in
support of the allegations. No response was offered.
Ultimately, the Village Council dissolved the DDA board in early 2013 and appointed
Delecke as the new Chairman of the DDA; the Planning Commission constituted the new board.
Plaintiffs alleged that this decision was a direct result of a dispute Paterek had with the Village in
2012 regarding the SALU for the garage. That dispute is detailed below.
C. Outside Storage Dispute
On March 7, 2012, prior to his removal from the DDA chairmanship, Paterek was
notified that PME was violating the terms of the garage’s SALU on account of work materials
being strewn about the premises. Paterek agreed to remove the offending supplies as soon as
possible, but on April 12, 2012, PME remained non-compliant, and the Village Building
Inspector, Dennis LeMieux, sent Paterek a second warning notification. On April 16, 2012,
Paterek responded by explaining the delay and notifying LeMieux that he had finished his most
recent job, and that the materials were no longer being stored outside at the garage.
At the next Planning Commission meeting, held on April 19, 2012, PME was a major
topic of discussion. The Planning Commission neglected to notify Plaintiffs about this meeting,
but John Paterek was in attendance, having learned from another source that his business would
be up for discussion at the meeting. Delecke explained to those in attendance that “Mr. Paterek
is an industrial user in [a general business] district; he does not qualify to be there.” (R. 2-11,
Apr. 19 PC Mtng., PGID 90). Delecke described the details of the garage’s SALU and then
pronounced that Plaintiffs were knowingly violating the terms of the SALU by working during
restricted hours and by keeping outside storage. Paterek contested Delecke’s understanding of
the term “outside storage,” and argued that, in any event, the offending work materials had been
removed following Inspector LeMieux’s second request. Delecke disagreed, and he concluded
that PME remained noncompliant because of a “plastic tote” and some “large pallets” that were
still outside on the garage premises. Delecke ordered the parking lot cleared and declared that
Paterek would be subject to “a fine of not less than $100 but not more than $1,000 per
No. 14-1894 Paterek, et al. v. Village of Armada, et al. Page 7
infraction” if the Patereks failed to comply with this directive by April 30, 2012. (Id. at 91).
Delecke also warned Paterek that the Planning Commission had the authority to rescind the
garage’s SALU.
The Planning Commission, historically, had not resorted to making similar threats. For
example, Delecke declined to ticket Larry’s Automotive for a SALU infraction that was nearly
identical to the allegations levied against Plaintiffs. Instead, he opted to have a conversation
with the owner of Larry’s Automotive after informing the Planning Commission that “the only
action available to us if we choose to do it is to instruct . . . LeMieux to initiate the violation
process,” which Delecke preferred not to do. (R. 36-2, Delecke Dep., PGID 920). Delecke
explained the disparate treatment by noting that he was “not really the best of friends” with
Paterek; he had a “personality conflict” with Paterek; Paterek’s “views [were] different” than his
own, and that Paterek should be held to a higher standard because he was the Supervisor of
Armada Township, a position that allegedly included code enforcement responsibilities. (Id. at
921). Those were the reasons that Paterek was given a deadline to comply with Delecke’s
interpretation of the SALU or face the consequences.
Paterek removed the remaining items that Delecke identified as constituting outside
storage prior to the April 30, 2012 deadline. Delecke, however, was not satisfied. On May 1, he
directed LeMieux to inform Paterek that the snow plow on PME’s parking lot also needed to be
removed from view. Paterek complied with this additional demand, and Lemieux dictated in his
notes, “complaint closed.” (R. 36-5, LeMieux Notes, PGID 961). Nonetheless, LeMieux called
Paterek the following week to demand that Paterek remove a barbeque grill that sat next to the
lunch area situated on his parking lot. LeMieux did not actually believe that the grill constituted
outside storage, but he had again been directed by Delecke to threaten Paterek with a citation.
Paterek held his ground with respect to the barbeque grill, refusing to concede that it constituted
outside storage and, therefore, a violation of the SALU.
On May 10, 2012, the Patereks received their first ticket for maintaining a barbeque grill
outside on the garage premises. Next, on July 19, 2012 a letter from LeMieux was mailed to the
Patereks advising them that the “barbeque remain[ed] in violation” of the SALU and that “the
picnic tables being stored in [the] parking lot [were also] in violation of [the SALU].” (R. 2-13,
No. 14-1894 Paterek, et al. v. Village of Armada, et al. Page 8
July 19, 2012 Ltr, PGID 96). Oddly enough, the picnic tables were one of the few modification
requests that Delecke and the Planning Commission had approved back in 1995. Regardless,
LeMieux forwarded notice of the violation to Village officials to initiate a lawsuit against John
Paterek for failing to remedy the purported violations. Eventually, the Village moved for
voluntary dismissal.
The decision to dissolve the DDA board was announced shortly after these events. John
Paterek lost his position as Chairman of the DDA, and he was replaced by his rival,
Commissioner (and now Chairman) Delecke.
D. PME Expansion: the Workshop
In 2013, the Patereks sought to expand PME when a neighboring property owner decided
to relocate and sell the building that housed his workshop; the workshop also held a SALU for
light industrial activities. The two-story building housed an apartment on the second floor in
addition to the workshop on the ground level. PME began leasing the property in early 2013 and
began moving new equipment into the workshop while the details of the sale were being
negotiated.
On June 17, 2013, LeMieux sent a notice to the property owner stating that Village
ordinances required that the Planning Commission approve any new business at the property, and
that a new Certificate of Occupancy (“COO”) was also required. A substantially similar letter
was directed to the Patereks on July 22, 2013, after they had officially purchased the property.
The Patereks applied for a new SALU for the workshop, but they withdrew the application after
being informed by their attorney that the preexisting SALU for the workshop remained valid.
They, likewise, did not believe a new COO was required.
On August 8, 2013, LeMieux began issuing $150 tickets daily to the Patereks for their
failure to apply for a COO for the workshop and for failing to seek approval from the Planning
Commission for a new SALU. The Patereks received at least twenty-five tickets for the
purported violations.
John Paterek contacted Village administrators, and he was informed that Delecke was
again the driving force behind the tickets—incorrectly demanding that the Patereks needed to
No. 14-1894 Paterek, et al. v. Village of Armada, et al. Page 9
apply for a second SALU at the workshop. The impetus for this demand is not clear, as it is
undisputed that the workshop had previously been issued a SALU for light-industrial activities
(which had not been revoked); and Delecke had specifically been informed a few months earlier
that SALUs ran with the land and, therefore, need not be renewed upon a change in ownership.
No explanation was provided with respect to Delecke’s involvement concerning the COO,
which, pursuant to the Village ordinances, was to be enforced and issued solely by the Building
Inspector; it had no connection to the Planning Commission’s jurisdiction.
Prior to letting out the second floor of their building, the Patereks planned to make certain
repairs and renovations; once those repairs were completed, they would also need to apply for a
COO, specific to the apartment. The Patereks applied for a permit to make the necessary repairs;
however, an unidentified Village administrator directed LeMieux to refrain from issuing the
Patereks any construction permits until they had first obtained a COO for the downstairs
workshop. LeMieux testified that this was an “unusual,” if not drastic, measure under the
circumstances, but he complied with the directive.
E. Certificate of Occupancy
In demanding that the Patereks obtain a new COO for the workshop, the Village relied on
the following provision of the zoning ordinances:
Certificates Required. No land or structure hereafter erected or altered shall be
occupied, used or changed in use until a certificate of occupancy shall have been
issued by the Building Inspector. A certificate of occupancy shall be required
prior to occupancy or re-occupancy of any use of land or structure. It shall be
unlawful for any person, firm or corporation to occupy or permit the occupation
of any structure or portion thereof until a certificate of occupancy has been issued.
(R. 16-4, Vill. Ord., PGID 4330).
On September 9, 2013, the Village filed suit seeking a preliminary injunction against
Plaintiffs for continuing to utilize the newly-acquired workshop without a new COO or SALU.
Plaintiffs contended that they were not required to obtain a new COO for the workshop because
the building’s primary purpose did not change—it remained a “machine shop”—and there was
no lapse in occupancy, such that PME’s expansion into the building could be considered a re-
occupancy. Likewise, they contended that a SALU was unnecessary because the original SALU
No. 14-1894 Paterek, et al. v. Village of Armada, et al. Page 10
remained valid. Plaintiffs thereafter submitted FOIA requests for Planning Commission meeting
minutes to determine the treatment of other businesses. These requests were denied.
Plaintiffs were eventually able to obtain evidence that seven local businesses had no
COO on file whatsoever: Lisa-Lea’s Hair Salon; K-Lynn & Company; Chap’s Restaurant; Main
Street Chiropractor; Grunwald Family Dentistry; and two distinct locations of Larry’s
Automotive. The Village records also indicated that a portrait studio was allowed to begin its
operations three months prior to its final inspection that was necessary for obtaining a COO.
Moreover, when control of the portrait studio transferred to a new owner, a new COO was issued
without inspection. Similarly, a pizzeria received its COO one month prior to having a final
inspection. The pizzeria also changed ownership, and it, likewise, was issued a COO without
passing an inspection; in fact, the pizzeria had failed its inspection due to serious fire code
violations, yet it was still issued a COO.
F. District Court Proceedings
Plaintiffs filed suit against the Village, and against Commissioner Delecke, in his
individual capacity, in the United States District Court for the Eastern District of Michigan, on
September 16, 2013. Relevant to this appeal, Plaintiffs asserted a retaliation claim under the
First Amendment, substantive and procedural due process claims under the Fourteenth
Amendment, and an equal protection claim, also under the Fourteenth Amendment. Plaintiffs
also asserted that the Village violated the Michigan Freedom of Information Act.
On September 25, 2013, Plaintiffs moved for a temporary restraining order to enjoin the
Village from issuing further tickets and from attempting to invalidate the workshop SALU. The
district court granted the motion (in part) on October 21, 2013. The Village was restrained and
enjoined from issuing further tickets with respect to the workshop where PME housed its
expanded operations. The Village was also restrained and enjoined from pursuing its
prosecution related to the previously issued tickets and the continued use/occupancy of the
workshop. Finally, the district court ordered Plaintiffs to submit a COO application for both
areas of the building, to resubmit the construction permit applications for the apartment, and to
No. 14-1894 Paterek, et al. v. Village of Armada, et al. Page 11
allow an inspection of the workshop by a neutral party. The Village thereafter would be required
to issue the appropriate permits and certificates, assuming the inspections were satisfactory.4
Following a number of delays, the Village indicated that it required certain renovation
plan documents from Plaintiffs prior to its inspection of the apartment. Plaintiffs were directed
to provide the documents by December 3, 2013, after which point the Village was required to
inspect the apartment and “either issue a [COO] for that part of the structure or specify the
deficiencies in detail.” (Id.)
A neutral official shortly thereafter inspected the workshop and discovered a number of
issues that would need to be addressed before a COO could be issued. The district court on
November 27, 2013 ordered Defendants to re-inspect the property at a later date and promptly
issue a COO if Plaintiffs had remedied each of the deficiencies noted at the initial inspection; the
district court also reaffirmed its order for Plaintiffs to provide Defendants with the requested
documents prior to the impending deadline so that Defendants could inspect the apartment and
promptly thereafter issue a COO for that portion of the premises. The Village was specifically
directed to issue a COO for the workshop that was “in conformance with the existing [SALU].”
(R. 22, Nov. 27 Order, PGID 505)
Plaintiffs proffered the requested documents by the December 3, 2013 deadline, and the
Village scheduled an inspection for both portions of the building to occur a few days later.
When the inspectors arrived at the property on December 6, 2013, they refused to inspect the
upstairs apartment; the Village did re-inspect the workshop, and the Village confirmed that
Plaintiffs had remedied all deficiencies.
The Village issued a COO for the workshop following the re-inspection, but the COO
stipulated that Plaintiffs would be restricted to operating only between the hours of 6:00 a.m. and
5:00 p.m. The purported basis for this time constraint, according to the Village, was language
from the original SALU. The SALU, however, stipulated only that the building’s occupant
4
The order was reissued on October 25, 2013 to account for the fact that the building inspector appointed
by the court in the original order would be unable to conduct the inspections in the time period contemplated by the
order due to previously scheduled commitments.
No. 14-1894 Paterek, et al. v. Village of Armada, et al. Page 12
should “avoid conflicts with adjacent and neighboring properties during normal sleeping hours.”5
Plaintiffs identified for the Village the governing language contained in the workshop’s SALU,
but the Village refused to modify its position by removing the time restriction it had decreed as
being a condition of the workshop COO.
With respect to the apartment, the Village claimed that its refusal to perform its
inspection on that date was premised on the fact that Plaintiffs had made slight modifications to
the site plan detailing the renovations, which the Village would have to review.
Plaintiffs thereafter filed a motion to place the Village in contempt of court for failing to
comply with the district court’s November 27, 2013 order, which required the Village (a) to issue
a COO consistent with the pre-existing SALU, and (b) to promptly inspect the apartment upon
receipt of the requested materials. The district court did not decide the motion until it also ruled
on the merits, at which point all inspections had been completed and Plaintiffs had been granted
a COO for the apartment; but the operating-hours restriction remained.
The Village next filed for summary judgment. Discovery continued while the contempt
and summary judgment motions remained pending; Plaintiffs filed for partial summary judgment
during this period.
As a result of requests made during discovery, Plaintiffs realized a new cause for concern
with Defendants’ conduct during the course of the litigation. LeMieux’s notes from the Fall of
2013 indicated that the Village issued a COO for the workshop on October 24, 2013, long before
any of the inspections that occurred in December. LeMieux’s notes also indicated that one day
later, October 25, 2013, he spoke with the Village’s attorneys regarding the COOs. October 25,
2013 was the same day that the court issued its revised order reaffirming that Plaintiffs would
have to submit to an inspection of the workshop. The details of LeMieux’s conversation were
redacted from his notes.
Based on this discovery, Plaintiffs filed a second motion for contempt, invoking the
criminal contempt statute this time. Plaintiffs’ theory was that the Village issued a COO, and
then it deliberately withheld the COO from Plaintiffs (and failed to disclose the issuance to the
5
Defendants’ suggestion to the contrary is based on the fact that the previous owner of the building, in
applying for the SALU, told the Village Council that his typical work hours lasted from 6:00 a.m. to 5:00 p m.
No. 14-1894 Paterek, et al. v. Village of Armada, et al. Page 13
court) after the Village learned that the court had granted its request to bar Plaintiffs from
utilizing the workshop until a COO issued following an inspection. Defendants countered
Plaintiffs’ arguments by noting that there was no record of a COO actually being issued on
October 24, 2013, and by contending that LeMieux’s notes merely indicated that the Patereks
had applied for a COO on that date. The court, as it did with the first motion for contempt,
tabled the issue to be decided contemporaneously with the merits.
The district court issued its opinion and order on June 17, 2014. It denied the first
contempt motion, reasoning that the Village had not “violated any definite and specific order of
the court,” because the November 27, 2013 order did not specifically prohibit the Village from
issuing a conditional COO with time restrictions, and because the order did not specify an
inspection date but, merely, required that the inspection be prompt. The district court also denied
Plaintiffs’ second (criminal) contempt motion because there was no definitive evidence that a
COO had ever been issued on October 24, and LeMieux testified that he was out of town on that
date. The notes, LeMieux suggested, likely reflected his own misinterpretation of a log entry
made by the substitute building inspector. The court concluded by noting that after the issuance
of the apartment COO, “the contempt motions serve[d] little purpose other than to prolong the
acrimony between the parties,” despite the Plaintiffs’ continuing dispute concerning the
limitation on operating hours at the workshop. (Id. at 1385).
Finally, the district court addressed the merits of the case, granting to Defendants
summary judgment on each of Plaintiffs’ constitutional claims.6 Plaintiffs timely filed a notice
of appeal with respect to the dismissal of their substantive claims and with respect to the
dismissal of the motions for contempt.
DISCUSSION
I. The Motions for Contempt
First, we address Plaintiffs’ motions for contempt. A district court’s decision to forego
issuing an order of contempt is reviewed for an abuse of discretion. Rolex Watch USA, Inc. v.
Crowley, 74 F.3d 716, 720 (6th Cir. 1996). This Court may not disturb the district court’s
determination unless it has a “definite and firm conviction that the trial court committed a clear
6
Plaintiffs prevailed on the FOIA claim, and they were awarded fees and costs.
No. 14-1894 Paterek, et al. v. Village of Armada, et al. Page 14
error of judgment.” FTC v. EMA Nationwide, Inc., 767 F.3d 611, 623 (6th Cir. 2014) (internal
quotations marks omitted). Reversal is warranted when the district court’s judgment was
undoubtedly mistaken or erroneous, but it is not warranted “simply because [this Court] would
have decided the case differently.” Innovation Ventures, LLC v. N2G Distrib., Inc., 763 F.3d
524, 544 (6th Cir. 2014). Relying on an incorrect legal standard, misapplying the correct legal
standard, or judging the outcome based on factual findings that are clearly erroneous, all
constitute an abuse of discretion. Yoder & Frey Auctioneers, Inc. v. EquipmentFacts, LLC,
774 F.3d 1065, 1070 (6th Cir. 2014).
A. Civil Contempt
On a motion for civil contempt, the moving party bears the burden of proof in showing
by clear and convincing evidence that the allegedly contumacious party violated a prior order of
the district court. Glover v. Johnson, 75 F.3d 264, 267 (6th Cir. 1996). The order in question
must be “definite and specific and ambiguities must be resolved in favor” of the party charged
with contempt. United States v. Conces, 507 F.3d 1028, 1042 (6th Cir. 2007). Where no
ambiguity exists, however, this Court must interpret the district court’s decrees “to mean rather
precisely what they say.” Grace v. Ctr. for Auto Safety, 72 F.3d 1236, 1241 (6th Cir. 1996).
The district court’s November 27, 2013 order directed the Village to inspect Plaintiffs’
manufacturing workshop and issue a COO in conformance with the SALU, so long as the
workshop passed the inspection; it also directed Plaintiffs to submit their site-plan
documentation; and the Village was directed to promptly thereafter inspect Plaintiffs’ upstairs
apartment and either issue a COO or explain in detail why the COO should not be issued. These
orders will be addressed in turn.
1. The Nonconforming Workshop COO
In relevant part, the order reads: “[D]efendants agree that if they are allowed to inspect
the manufacturing area of the building, and if they find that the deficiencies identified in that part
of the building by the recent independent inspection have been corrected, then the defendants
will issue promptly a [COO] allowing use of the manufacturing area in conformance with the
existing [SALU].” (R. 22, Nov. 27 Order, PGID 505) (emphasis added). It is undisputed that all
deficiencies at the workshop had been corrected prior to when the Village performed its
No. 14-1894 Paterek, et al. v. Village of Armada, et al. Page 15
inspection. The Village promptly issued a COO, but it did not conform to the then-existing
SALU, as was required by the court’s order; instead, it placed a new operating-hours restriction
on Plaintiffs’ workshop.
The original SALU contained only one condition with respect to time: “The hours and
days of operation, together with operational activities, shall be so scheduled and controlled as to
avoid conflicts with adjacent and neighboring properties during normal sleeping hours.” (R. 2-
19, Korzen SALU, PGID 120). It is impossible to square this flexible limitation with the rigid
time constraint the Village placed on Plaintiffs. The district court reasoned, and Defendants now
argue, that the restriction was not inconsistent with the district court’s prior order because that
order “was silent as to content and conditions of the COO, and simply required that a COO must
be issued if the property was found to be compliant with applicable regulations.” Appellee Br. at
41 (quoting Paterek v. Vill. of Armada, No. 13-13966, 2014 WL 2766104, at *10 (6th Cir. June
17, 2014)). This contention is baseless in view of the explicit direction that the COO be “in
conformance with the existing” SALU. There is no rational basis to support an interpretation of
“normal sleeping hours” to mean anytime immediately after 5:00 p.m.7 The district court abused
its discretion, in connection with its consideration of Plaintiffs’ contempt motion, by failing to
hold that the Village violated its order, inasmuch as Defendants patently disregarded the district
court’s unequivocal instruction for Defendants to issue a COO that conformed with the then-
existing SALU.
2. Timely Apartment Inspection
Plaintiffs’ second contention—that the Village failed to promptly inspect the apartment—
is far less persuasive. The record evidence indicates that any delay in inspecting the apartment
may be wholly attributable to the Patereks, inasmuch as the Patereks made alterations to their
renovation plans, which Defendants needed to review prior to the inspection. For that reason, it
cannot be said that the district court abused its discretion in finding that Defendants did not
violate a clear and specific directive of the court.
7
The restriction appears to be no more than an attempt to modify the SALU, which would require the
Patereks’ consent—Defendants failed to indicate any provision of the Village ordinances that allows for the
imposition of conditions on a business’ operational hours by way of a COO.
No. 14-1894 Paterek, et al. v. Village of Armada, et al. Page 16
In summary, despite the district court’s contrary contention, granting a meritorious
contempt motion serves an essential purpose even though the COOs had already been issued at
the time the motion was decided; an order holding Defendants in contempt in this case, if
warranted, would provide an opportunity for the court to remedy Plaintiffs’ injury (from
suffering reduced operating hours) by requiring the issuance of a COO that actually conforms to
the pre-existing SALU. See Colling v. Barry, 841 F.2d 1297, 1300 (6th Cir. 1988) (“[C]ivil
contempt seeks to remedy a deprivation or a loss.”). The district court abused its discretion in
this case by failing to apply the proper legal criteria in deciding whether to hold Defendants in
contempt after they violated a clear and unambiguous order of the court. See Elec. Workers
Pension Trust Fund of Local Union 58, IBEW v. Gary’s Elec. Serv. Co., 340 F.3d 373, 382 (6th
Cir. 2003). We therefore vacate the district court’s order denying Plaintiffs’ motion for civil
contempt so that the matter can be reconsidered on remand.
The power to shape the appropriate remedy for a finding of contempt lies squarely within
the discretion of the district court. Id. In this case, however, the district court apparently failed
to appropriately consider the possibility of relief that would include the issuance of a COO
without imposing additional time constraints on the operation of Plaintiffs’ business, beyond
those identified in the SALU.
B. Criminal Contempt
The criminal contempt motion turns on whether the Village withheld from Plaintiffs and
the district court a COO that was issued for the workshop on October 24, 2013. A district court
may refer an alleged contempt of court for criminal prosecution only when there is clear and
convincing evidence that (1) a party purposefully acted in a contumacious manner, (2) resulting
in the obstruction of judicial administration, (3) the bad behavior having “occurred in the
presence of the court,” and (4) it was intended to result in the obstruction. United States v.
Moncier, 571 F.3d 593, 598 (6th Cir. 2009).
The only evidence proffered in support of Plaintiffs’ motion was the reference in
LeMieux’s notes to a COO being issued on October 24, 2013. LeMieux’s testimony, however,
revealed that he was out of town on that date; his notes may have merely reflected an attempt to
transcribe log entries made by a substitute inspector. Whether the Village issued a COO on that
No. 14-1894 Paterek, et al. v. Village of Armada, et al. Page 17
date is not dispositive in this case because, based on the conflicting record evidence, it is clear
that the district court did not abuse its discretion in denying Plaintiffs’ motion.
II. Constitutional Claims
Next, we consider the district court’s grant of summary judgment in favor of Defendants
with respect to Plaintiffs’ claims brought pursuant to 42 U.S.C. § 1983.
Standard of Review
We review de novo a district court’s grant of summary judgment. Gillie v. Law Office of
Eric A. Jones, LLC, 785 F.3d 1091, 1097 (6th Cir. 2015). A motion for summary judgment
should be granted when the material facts are not in dispute and the moving party, in light of the
facts presented, is entitled to judgment as a matter of law. Id. Courts must view the facts in the
light most favorable to the non-moving party. Combs v. Int’l Ins. Co., 354 F.3d 568, 576 (6th
Cir. 2004). But the nonmoving party must offer more than a mere “scintilla of evidence” in its
favor to create a genuine issue of fact sufficient to avoid summary judgment. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
A. First Amendment Retaliation
To succeed on a First Amendment retaliation claim, the following elements must be
proven: “(1) the plaintiff engaged in constitutionally protected conduct; (2) an adverse action
was taken against the plaintiff that would deter a person of ordinary firmness from continuing to
engage in that conduct; and (3) the adverse action was motivated at least in part by the plaintiff’s
protected conduct.” Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 723 (6th Cir. 2010).
Defendants do not dispute that the first two elements have been satisfied—appealing an adverse
judgment and speaking out against public officials are well-established as protected conduct, see
Leonard v. Robinson, 477 F.3d 347, 357 (6th Cir. 2007), and the numerous tickets that were
issued to Plaintiffs, the suits that were initiated against them, and the loss of John Paterek’s
position on the DDA patently constitute adverse actions, see, e.g., Fritz, 592 F.3d at 724; see
also Garcia v. City of Trenton, 348 F.3d 726, 729 (8th Cir. 2003). Therefore, we need only
address the third element—the causal connection between elements one and two. If a plaintiff is
able to establish a prima facie case of First Amendment retaliation, the burden then shifts to the
No. 14-1894 Paterek, et al. v. Village of Armada, et al. Page 18
defendant to put forth evidence showing it would have taken the adverse action absent any
retaliatory motive; summary judgment is only warranted if, viewing the evidence “in the light
most favorable to the plaintiff, no reasonable juror could fail to return a verdict for defendant.”
Dye v. Office of the Racing Comm’n, 702 F.3d 286, 294–95 (6th Cir. 2012) (internal quotation
marks omitted).
Causation is best addressed as a two part inquiry. First, we determine whether “the
adverse action was proximately caused by an individual defendant’s acts,” and second, we
consider whether “the individual taking those acts was motivated . . . by a desire to punish [the
plaintiff] for the exercise of a constitutional right.” King v. Zamiara, 680 F.3d 686, 695 (6th Cir.
2012) (internal quotation marks and citation omitted). The true object of this inquiry is to
determine whether the plaintiff has been retaliated against as a direct result of his or her
protected speech.
The first instance of protected speech cited by Plaintiffs in support of their claim is the
successful appeal to the Village Council in July of 1995, which overturned the Planning
Commission’s decision to deny the Patereks’ request for a modification of the garage’s SALU.
Delecke spoke out vehemently against Plaintiffs’ appeal, which ultimately resulted in Delecke’s
own business being investigated. These facts lend support to drawing the inference that Delecke
would seek retaliation against the Patereks; however, a retaliation claim cannot reasonably rest
on the occurrence of this speech alone, because the first adverse action cited by Plaintiffs as an
example of retaliation did not occur for nearly another two decades. See Vereecke v. Huron
Valley Sch. Dist., 609 F.3d 392, 400 (6th Cir. 2010) (“[T]he more time that elapses between the
protected activity and the adverse . . . action, the more the plaintiff must supplement his claim
with other evidence of retaliatory conduct to establish causality.” (internal quotation marks
omitted)). However, Plaintiffs’ claim is not foreclosed simply due to the passage of time,
because it is based on more than an isolated incident of protected speech. The first incident
simply offers an explanation respecting the initial cause of the rift between Defendants and John
Paterek.
Rather than rely on a single example of protected speech, Plaintiffs’ theory of the case is
that their recurring speech activities resulted in an escalating animus between Defendants and the
No. 14-1894 Paterek, et al. v. Village of Armada, et al. Page 19
Patereks, which ultimately led Defendants to take the adverse actions at issue in this case. The
following passages recount Plaintiffs’ evidence that, when viewed in the light most favorable to
them, supports the plausibility of their escalating animus theory.
In November of 2011, the Village Council explicitly threatened to depose John Paterek
from his position as Chairman of the DDA as direct result of his protected speech. The Village
Council asserted Paterek’s outspoken disagreement with members of that body as the purported
basis for menacing Paterek with the prospect of removal—characterizing Paterek’s speech as
“[p]ersonal attacks on Village Officials” and “[d]erogatory . . . behavior exhibited during public
meetings.” (R. 2-15, Notice of Cause, PGID 100). The Village Council acknowledged Paterek’s
“absolute right to voice [his] opinion” on public matters, id., and no immediate action was taken
after Paterek responded by forcefully contesting the Council’s characterization of his speech
activities. However, this matter was not concluded at that time.
A few months later, Paterek was once again at loggerheads with Village officials when he
purportedly violated his SALU by leaving work materials outside on the garage premises in
order to complete a project for one of his clients. Paterek subsequently removed the offending
materials, and Inspector LeMieux was satisfied. Delecke, however, continued to involve himself
after the matter was seemingly closed. At an ensuing Planning Commission meeting, Delecke
indicated his belief that a “plastic tote,” along with some “large pallets” that remained outside in
the garage parking lot, also constituted outside storage. Delecke then gave Plaintiffs ten days to
remove the items before he would demand that LeMieux issue a citation. This directive
constituted a shift in policy, inasmuch as Delecke typically spoke with business owners about
perceived violations as opposed to threatening them with sanctions. Nonetheless, Plaintiffs
promptly complied with Delecke’s instructions by removing the offending objects. LeMieux
again believed that Plaintiffs were in compliance with the SALU and thought the matter was
closed. However, Delecke relentlessly persisted in his campaign against Paterek by insisting that
Plaintiffs’ snowplow should then be removed from PME’s parking lot as well. Plaintiffs again
complied with Delecke’s new directive. Yet Delecke remained dissatisfied. He next demanded
that Plaintiffs remove a barbeque grill from PME’s Planning Commission-authorized outside
lunch area. The Patereks balked at this demand, the latest of Delecke’s seemingly baseless
quibbles. Delecke thereafter directed LeMieux to begin issuing citations for the purported
No. 14-1894 Paterek, et al. v. Village of Armada, et al. Page 20
violations to enforce the terms of the SALU. Plaintiffs were issued a few tickets, which they
refused to pay, before the Village commenced legal proceedings to prosecute John Paterek for
the non-payment. The Village voluntarily withdrew from pressing its charges against Paterek,
but shortly thereafter the Village dissolved the DDA and transferred the administration of the
DDA to Delecke and his Planning Commission.
“Circumstantial evidence, like the timing of events or the disparate treatment of similar
individuals, may support [the] inference [of a retaliatory motive].” Arnett v. Myers, 281 F.3d
552, 560–61 (6th Cir. 2002). The letter from the Village Council, in concert with the timing of
Paterek’s removal from the DDA following shortly after his dispute with the Planning
Commission, constitutes strong circumstantial evidence of a retaliatory motive. The Village’s
disparate treatment of Paterek during the outside storage dispute and Delecke’s strained reading
of the SALU to prohibit a barbeque grill from a lunch area under the theory that it constituted
“outside storage of any materials, supplies, or parts” provides additional circumstantial evidence
that, when considered together, is sufficient to preclude summary judgment. See Eckerman v.
Tenn. Dep’t of Safety, 636 F.3d 202, 209–10 (6th Cir. 2010) (finding an inference of retaliatory
motive even after a three year lapse in time, because there was subsequent circumstantial
evidence of disparate treatment and allegations that the defendants had openly voiced their
dislike of the plaintiff); Thaddeus-X v. Blatter, 175 F.3d 378, 399–400 (6th Cir. 1999) (en banc)
(finding plaintiff’s allegations about causation sufficient to survive summary judgment because
they were “specific” and “nonconclusory” and defendants did little more than offer a summary
denial of the allegations).
Defendants argue that the dissolution of the entire DDA board cannot reasonably be
construed as an action taken against Paterek individually, but this contention rings hollow in
light of the timing, the Village’s letter to Paterek, and the result of the dissolution being that
Delecke gained control of the DDA. Because a reasonable jury could conclude that Defendants
retaliated against Plaintiffs for their protected speech activity, summary judgment was
inappropriate on the grounds that there was no causal link to support an inference of retaliation.
No. 14-1894 Paterek, et al. v. Village of Armada, et al. Page 21
B. Substantive Due Process
Substantive due process, among other things, protects citizens from being subject to
“arbitrary or irrational zoning decisions.” Pearson v. City of Grand Blanc, 961 F.2d 1211, 1217
(6th Cir. 1992). To succeed on a substantive due process claim based on this theory, a plaintiff is
required to show that “(1) a constitutionally protected property or liberty interest exists, and
(2) the constitutionally protected interest has been deprived through arbitrary and capricious
action.” Braun v. Ann Arbor Charter Twp., 519 F.3d 564, 573 (6th Cir. 2008) (internal quotation
marks omitted). We will not “interfere with local zoning decisions unless the locality’s action
has no foundation in reason and is a mere arbitrary or irrational exercise of power.” Warren v.
City of Athens, Ohio, 411 F.3d 697, 707 (6th Cir. 2005) (internal quotation marks omitted).
Plaintiffs rely on two incidents to support their substantive due process claim: first, the
outside storage dispute, which ultimately led to the Village attempting to prosecute Paterek; and
second, the dispute over whether Plaintiffs were required to apply for a new COO and SALU,
which also led to an attempted prosecution that was only cut off by order of the district court.
We look to state law to determine whether there is a recognized property interest, EJS
Properties, LLC v. City of Toledo, 698 F.3d 845, 854 (6th Cir. 2012); specifically, we consider
whether the plaintiff had a “legitimate claim of entitlement” or a “justifiable expectation” to rely
on a zoning authorization. Silver v. Franklin Twp. Bd. of Zoning Appeals, 966 F.2d 1031, 1039
(6th Cir. 1992). This question has already been answered: under Michigan law, Plaintiffs had a
recognized property interest in both the garage and workshop SALUs, and they had a legitimate
claim of entitlement to the workshop COO, so long as the workshop passed the Village’s
inspection. Dorr v. City of Ecorse, 305 F. App’x 270, 275 (6th Cir. 2008) (citing Dingeman
Adver v. Algoma Twp., 223 N.W.2d 689, 691 (1974) and Schenden v. Addison Twp., Nos.
244389, 245808, 2004 WL 1908231, at *5 (Mich. Ct. App. Aug. 26, 2004)); see also Hillside
Prods., Inc. v. Duchane, 249 F. Supp. 2d. 880, 893 (E.D. Mich. 2003) (“Entitlements to permits
are rare. In this case, however, Defendants had already exercised their discretion to grant a
Special Approval Land Use, and Plaintiffs’ claim of entitlement is based on the express terms of
the SALU itself . . . .”).
No. 14-1894 Paterek, et al. v. Village of Armada, et al. Page 22
When viewed in the light most favorable to Plaintiffs, there is a disputed issue of fact as
to whether Defendants’ enforcement and permitting activity as related to the Patereks was
arbitrary and capricious. With respect to the outside storage, Delecke admitted to handling
Paterek in a different manner than other business owners; and Delecke’s assertion that a
barbeque grill (situated next to an authorized lunch area) constitutes outside storage strains
credulity. Likewise, the Village has failed to offer any explanation of its attempt to prosecute
Plaintiffs for refusing to obtain a new SALU, when it is undisputed that the Village was aware of
the preexisting SALU and the fact that SALUs run with the land. Finally, the decision to
withhold Plaintiffs’ building permits for the apartment until Plaintiffs applied for a new COO at
the workshop, in the Building Inspector’s own words, was odd; and the COO that ultimately was
issued unilaterally modified the terms of the workshop SALU in contravention of the district
court order—placing an onerous operating-hours restriction on Plaintiffs that was inconsistent
not only with the workshop SALU itself, but with the permissible operating hours at Plaintiffs’
garage, which was right next door.
Based on these facts, a reasonable jury could find that Defendants acted arbitrarily and
capriciously in deciding to (1) issue outside storage citations based on Paterek’s barbeque grill,
(2) seek prosecution against Paterek for his failure to apply for a new SALU, and (3) issue
Paterek a COO that restricted his operating hours beyond that authorized by his pre-existing
SALU for the workshop.
Defendants contend that Plaintiffs’ claim is doomed for want of a cognizable injury,
inasmuch as they were never deprived of a property interest because each of the attempted
prosecutions was dismissed. This argument fails because a deprivation need not be permanent or
complete to run afoul of the Constitution, see, e.g., Edison v. Tenn. Dep’t of Children’s Servs.,
510 F.3d 631, 635 (6th Cir. 2007), and, at minimum, Plaintiffs were deprived of the full benefits
of the preexisting SALU for the workshop when the Village issued a COO restricting Plaintiffs
permissible operating hours.
C. Procedural Due Process
Procedural due process requires that the government, prior to depriving an individual of
their property, provide that individual with notice of the proposed action and an opportunity to be
No. 14-1894 Paterek, et al. v. Village of Armada, et al. Page 23
heard. Morrison v. Warren, 375 F.3d 468, 473 (6th Cir. 2004). To establish a procedural due
process claim, a plaintiff must show (1) the existence of a protected property interest at issue,
(2) a deprivation of that protected property interest, and (3) that he or she was not afforded
adequate procedures. Daily Servs., LLC v. Valentino, 756 F.3d 893, 904 (6th Cir. 2014).
Plaintiffs’ sole contention is that they were not afforded any notice with regards to the Planning
Commission meeting where Delecke threatened to revoke Plaintiffs’ SALU and warned that
Plaintiffs would be ticketed if they failed to conform to Delecke’s understanding of what items
constituted outside storage. Plaintiffs satisfy the first element because they had a protected
property interest in the SALU. Hillside Prods., Inc., 249 F. Supp. 2d. at 893. They cannot
succeed on their claim, however, because the facts available in the record, even when viewed in
the light most favorable to Plaintiffs, do not support finding that Plaintiffs suffered any
deprivation as a direct result of the Planning Commission meeting. The SALU was not revoked.
Defendants were therefore entitled to summary judgment with respect to this claim.
D. Equal Protection
The Equal Protection Clause safeguards against the disparate treatment of similarly
situated individuals as a result of government action that “either burdens a fundamental right,
targets a suspect class, or has no rational basis.” Ctr. for Bio-Ethical Reform, Inc. v. Napolitano,
648 F.3d 365, 379 (6th Cir. 2011) (internal quotation marks omitted). Plaintiffs’ claim does not
concern a fundamental right, and Plaintiffs do not purport to be part of a suspect class. Rather,
Plaintiffs’ claim—sometime referred to as a “class-of-one claim,” see Vill. of Willowbrook v.
Olech, 528 U.S. 562, 564 (2000)—is premised on the theory that Defendants, due to animus,
treated PME differently than similarly situated businesses. To succeed on this type of claim, a
plaintiff must allege either disparate treatment from similarly situated individuals and that the
government actors had no rational basis for the difference, Assocs. of Cleveland Fire Fighters v.
City of Cleveland, Ohio, 502 F.3d 545, 549 (6th Cir. 2007), or that the “challenged government
action was motivated by animus or ill-will,” EJS Properties, LLC v. City of Toledo, 698 F.3d
845, 864 (6th Cir. 2012).
“Similarly situated” is a term of art—a comparator business must be similar in “all
relevant respects.” United States v. Green, 654 F.3d 637, 651 (6th Cir. 2011) (internal quotation
No. 14-1894 Paterek, et al. v. Village of Armada, et al. Page 24
marks omitted). Plaintiffs point to a number of incidents concerning businesses that were
allowed to operate without a COO, or were issued a COO after a failed inspection, or were not
subjected to inspection prior to being granted a COO when the business had previously been
operated under different ownership. Plaintiffs also submit Larry’s Automotive, which, like
PME, required a SALU but was treated more favorably. Delecke’s explanation for treating
Plaintiffs less favorably was that he had a “personality conflict” with John Paterek. A jury could
reasonably find, on this admission alone, that PME was treated differently, not on account of any
rational basis, but instead due to animus.
E. Qualified Immunity
Delecke asserts immunity as a public official even if Plaintiffs’ rights were violated. The
doctrine of qualified immunity shields government actors from being sued in their individual
capacity for civil damages resulting from tortious acts committed while performing discretionary
functions. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The immunity applies “[a]s long as
[the official’s] actions could reasonably have been thought consistent with the rights they are
alleged to have violated.” Anderson v. Creighton, 483 U.S. 635, 638 (1987). To succeed on a
§ 1983 claim, a plaintiff must demonstrate that (1) the government actor violated his or her
constitutional rights, and (2) the right in question was clearly established law at the time the
injury was sustained. Saucier v. Katz, 533 U.S. 194, 199 (2001). Liability may only arise if the
defendant, “through [his] own individual actions, has violated the Constitution.” Iqbal, 556 U.S.
at 676 (emphasis added).
Defendants contend that Delecke is entitled to qualified immunity with respect to each of
the constitutional claims, but they fail to offer any analysis on this point, other than to say that
Delecke’s actions did not offend the Constitution. This failure to address the clearly established
prong of our inquiry is unsurprising given the complete absence of case law with remotely
comparable fact patterns—a point, which at first glance, seems to weigh in favor of Delecke’s
claim for qualified immunity. See Heggen v. Lee, 284 F.3d 675, 686 (6th Cir. 2002) (“To
determine whether a right is clearly established, this Court has instructed district courts to look at
binding precedent from the Sixth Circuit, the United States Supreme Court or its own court.”);
Godawa v. Byrd, No. 14-5963, 2015 WL 4926753, ___ F.3d ___ (6th Cir. Aug. 19, 2015) (“The
No. 14-1894 Paterek, et al. v. Village of Armada, et al. Page 25
Supreme Court has ‘repeatedly told courts not to define clearly established law at a high level of
generality.’” (citation omitted)). However, “a case directly on point” is not required to establish
that the law is clearly established, Ashcroft v. al-Kidd, 563 U.S. 731, 131 S. Ct. 2074, 2083
(2011), because “[s]ome violations of constitutional rights are so obvious that a materially
similar case” would be unnecessary, Hearring v. Sliwowski, 712 F.3d 275, 280 (6th Cir. 2013).
At bottom, the dispositive inquiry is whether, at the time of injury, the law was “sufficiently
clear [such] that a reasonable official would understand that what he [was] doing violate[d]” the
plaintiff’s constitutional rights. Binay v. Bettendorf, 601 F.3d 640, 646–47 (6th Cir. 2010)
(internal quotation marks omitted).
The allegations in this case, if proven, would constitute an obvious violation of Plaintiffs’
constitutional rights of which any reasonable official should have been aware. Viewed in the
light most favorable to Plaintiffs, the facts suggest that Delecke used his government post to
harass and retaliate against Plaintiffs by causing tickets to be issued and by denying Plaintiffs the
rights bestowed to them under their SALUs. It is fundamental that the right to be free of such
retaliation, arbitrary and capricious state action, and disparate treatment with no rational basis is
clearly established. See, e.g., Brown v. Crowley, 312 F.3d 782, 790 (6th Cir. 2002) (issuing
baseless citations in response to a plaintiff’s protected speech activities violates the First
Amendment); Warren v. City of Athens, Ohio, 411 F.3d 697, 707–08 (6th Cir. 2005) (noting that
a unilateral zoning change with respect to a vested right could violate substantive due process);
Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 261 (6th Cir. 2006) (“A plaintiff may
demonstrate that the government action lacks a rational basis . . . by [showing] that the
challenged government action was motivated by animus or ill-will.”).
Defendants assert that Delecke cannot be held liable because he did not directly cause the
injuries. Delecke had no authority to issue tickets, initiate lawsuits, or grant a time-constrained
COO. However, the record evidence plainly indicates that Delecke directed LeMieux to
undertake the adverse actions at issue. Whether Delecke had ultimate decision-making authority
is not dispositive, because LeMieux simply “acted as the conduit [for Delecke’s] prejudice—his
cat’s paw.” Kelly v. Warren Cnty. Bd. Of Comm’rs, 396 F. App’x 246, 255 (6th Cir. 2010);
Bobo v. United Parcel Serv., Inc., 665 F.3d 741, 756 (6th Cir. 2012) (“[T]he ‘cat’s paw’
theory . . . refers to a situation in which ‘a biased [official], who lacks decision-making power,
No. 14-1894 Paterek, et al. v. Village of Armada, et al. Page 26
influences the unbiased decision-maker to [take] an adverse [enforcement action].’” (citation
omitted)). In this case, LeMieux testified that he issued the tickets (and forwarded the tickets for
prosecution) on Delecke’s say so. Delecke, for that reason, is the responsible party.
F. Municipal Liability
The Village also contests its liability on immunity grounds. Typically, a municipality is
immune from § 1983 liability, unless it can be shown that the unconstitutional actions it is
charged with committing is the result of a municipal policy or custom. Monell v. New York City
Dep’t of Social Servs., 436 U.S. 658, 694 (1978). The phrase policy or custom is not so
limited—Monell (and municipal liability) “[are] . . . about responsibility,” not merely written
rules of conduct. Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986). Therefore, an
isolated exercise of government authority that abridges an individual’s constitutional rights can
give rise to municipal liability. Meyers v. City of Cincinnati, 14 F.3d 1115, 1117–18 (6th Cir.
1994). For example, liability can be established by showing that “an official with final decision
making authority ratified [the] illegal actions.” Id.
Each of the alleged constitutional violations in this case stem from the decision of an
official with final decision-making authority related to the particular policy at issue: LeMieux
was imbued with the primary responsibility for enforcing the Village’s zoning ordinances (and
determining whether an ordinance had in fact been violated); LeMieux was also singularly
responsible for issuing COOs; and finally, the Village Council itself caused the dissolution of the
DDA. Based on these facts, the Village is liable if a jury finds in Plaintiffs’ favor. See Bd. of
Cnty. Comm’rs of Bryan Cnty., Okla v. Brown, 520 U.S. 397, 404 (1997) (“[P]roof that a
municipality’s legislative body or authorized decisionmaker has intentionally deprived a plaintiff
of a federally protected right necessarily establishes that the municipality acted culpably.”).
CONCLUSION
Because a jury could reasonably find that Defendants retaliated against Plaintiffs for
having complained about Village officials, in violation of the First Amendment; that Defendants
arbitrarily and capriciously ticketed Plaintiffs, in violation of substantive due process; that
Defendants, due to their animus against Plaintiffs, subjected Plaintiffs’ business to disparate
treatment, in violation of the Equal Protection Clause; and because the district court erroneously
No. 14-1894 Paterek, et al. v. Village of Armada, et al. Page 27
denied Plaintiffs’ civil contempt motion, we hereby REVERSE the grant of summary judgment
in favor of Defendants, VACATE the district court’s denial of Plaintiffs’ contempt motion, and
REMAND this case to the district court for further proceedings consistent with this opinion.