Melanie Briner v. City of Ontario ( 2010 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0196n.06
Case No. 08-3731
FILED
Mar 26, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
MELANIE BRINER, et al., )
)
Plaintiffs-Appellants, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
CITY of ONTARIO, et al., ) COURT FOR THE NORTHERN
) DISTRICT OF OHIO
Defendants-Appellees. )
)
_______________________________________ )
BEFORE: BATCHELDER, Chief Judge; KENNEDY and McKEAGUE, Circuit Judges.
ALICE M. BATCHELDER, Chief Judge. The plaintiffs appeal the grant of summary
judgment to the defendants in this action for retaliation and related claims arising from the removal
of their business from a municipal towing list. For the reasons that follow, we AFFIRM in part,
REVERSE in part, and REMAND for further proceedings consistent with this opinion.
BACKGROUND
This case arises out of a series of disputes between Appellants Tom and Melanie Briner and
certain officials of the City of Ontario, Ohio (the “City”), where the Briners reside. In early 2004,
the Briners purchased a towing company, F&W Towing (“F&W”), which, among other things,
towed vehicles for the City and other nearby municipalities as a participant on the towing “rotational
call list” maintained by the police departments of the various municipalities.1
1
F&W had been on the tow list for the City of Mansfield, the Ohio State Highway Patrol, the Lexington Police
Department, and the Richland County Sheriff. They were eventually removed from all of these lists.
On December 20, 2004, the F&W office was burglarized and $2,000 was stolen from the cash
drawer. The office was not ransacked and nothing else was taken or disturbed. The Briners reported
the theft to the Ontario City Police Department (the “Department”), and stated that they believed that
Billy Hamm, a former F&W employee, had committed the crime. After an initial investigation by
other officers, the case was turned over to Detective Riley Snavely. Det. Snavely left the crime scene
and drove to the Hamms’ house. Mr. Hamm was not at home, but was waiting at the police station
when Det. Snavely returned there.
Det. Snavely interviewed Mr. Hamm and his wife at the police station, but did not record the
conversation in any way. Det. Snavely interviewed an F&W employee named Tim (who, according
to Det. Snavely, vouched for Hamm), and attempted to contact other F&W employees, but was
unable to convince any other employees to come to the police station to be interviewed. At his
deposition, Det. Snavely indicated that one F&W employee, Debra Hissong, refused to come to the
police station because she wished to remain with her husband, who was recovering from open-heart
surgery.2
Det. Snavely never solved the investigation into the F&W burglary. He apparently concluded
that Mr. Hamm had not done it and then closed the case, explaining that F&W employees would not
come to the police station to give statements.
There is some evidence that Det. Snavely closed the case because he thought the Briners had
staged the robbery themselves. Melanie Briner recounted her final discussion with Det. Snavely this
way:
2
There is some evidence that Det. Snavely may have had a pre-existing bias against Ms. Hissong. Ms. Hissong’s
son, Jason, had married Det. Snavely’s ex-wife, and the two had been involved in an altercation shortly after Jason and
Det. Snavely’s ex-wife began dating. Jason subsequently filed a complaint against Det. Snavely with the Department.
Det. Snavely had also previously arrested another of Ms. Hissong’s sons for auto theft and knew that the same son had
been incarcerated in a federal penitentiary for narcotics distribution.
2
[Det. Snavely] started to say things like, well, Mrs. Briner, Billy Ham[m] told me
you’re in financial trouble[,] and I said, no, I would not discuss my finances with my
employees, and [Det. Snavely] said ---- he looked around the building and he said,
you must have a pretty big loan on this building and everything, and I said, what does
that have to do with anything? [Det. Snavely] was, in my mind, the other officer was
there, [but Det. Snavely] was insinuating that maybe we had robbed ourselves.
The Briners expressed some dissatisfaction with what they perceived as Det. Snavely’s failure to
adequately investigate the case.
Shortly after the burglary and curtailed investigation, on or about December 27, 2004, Officer
Don Wallace accompanied Mr. Hamm to F&W to obtain a copy of some pay records from F&W,
relevant to Mr. Hamm’s former employment with F&W. Upset that the Department would send an
officer to assist the person who they believed was responsible for a burglary the Department
allegedly refused to solve, the Briners went to the police station on December 28, 2004, to complain.
Although they had no appointment, Ontario Police Chief Timothy McClaren agreed to speak
with the Briners, but did so in the lobby of the police station, rather than in the privacy of his office.
The Briners indicated that they were upset but Chief McClaran responded that Officer Wallace had
merely performed a “civil standby,” to keep a potentially volatile situation under control. The
Briners complained that this was an insult and an improper use of tax payer funds, that Det. Snavely
had been “rude and disrespectful to them,” and that the burglary of their business was not receiving
the attention it deserved. The Briners alleged that Chief McClaran “took a tone” with them, an
attitude of impatience and intimidation, made it clear that they were annoying him, and walked away
without saying goodbye. McClaran apparently wrote them a letter (not in the record), informing
them that their complaint had no merit and that the investigation of their burglary was closed. The
evidence before the district court indicates that this was their first complaint ever about the
Department.
3
During the same time period (circa December 20043), the Briners had agreed to trade two of
their old tow trucks to an employee, Larry Paone, for a 1993 GMC pick-up truck. On December 1,
2004, the parties exchanged the trucks — the Briners gave Larry the two tow trucks, transferred their
titles to Larry, and took physical possession of the GMC pick-up. This is not disputed. The Briners
parked the GMC pick-up in their driveway in front of their house for the following two months. At
the time of the exchange, Larry did not provide the title to the GMC pick-up truck,4 claiming that
he could not find the title but promising to provide it when found.
On December 12, 2004, the Briners allegedly learned that Larry had been misusing company
assets for personal gain and fired him. On December 16, 2004, Larry came to the F&W office to
discuss this termination. He was unable to convince the Briners to reconsider his termination, but
Ms. Briner again reminded him that he still needed to bring the title to the GMC truck. The Briners
claimed that Larry next came to the office on December 30, 2004, to deliver the title to the GMC
pick-up truck, and that Larry signed the title in the F&W office and Melanie Briner notarized it on
that day. Larry claimed that he had not gone to F&W that day, but had been with his father, Dave
Paone, all day. The Briners eventually pursued (and won) a civil suit against Larry on a conversion
claim regarding the truck. At the trial in that case, Larry testified that he couldn’t recall where he
was on December 30 and recanted his earlier assertions. The court made an express finding: “14.
Larry delivered the title for the ‘93 [GMC pick-up truck] to [the Briners] on December 30, 2004.
The Court finds that [Larry] did in fact sign the title in front of Melanie Briner, a notary.” F & W
Towing v. Larry Paone, Case NO. 2005-CVH-1263, *3 (Mansfield Municipal Court, Judgment dated
3
The burglary occurred on December 20, 2004.
4
During the Department’s investigation of the theft, Larry initially claimed that he had left the title in the glove
box, but later recanted under oath.
4
May 4, 2006).
After the exchange of possession of the vehicles, a dispute arose between Larry and the
Briners over their agreement. Larry claimed that the Briners had promised to make some repairs to
one of the tow trucks that Larry received. Allegedly, the Briners failed to do so, and Larry proceeded
to take action. At some point on December 30, 2004, Larry and Dave Paone went to a vehicle title
office, reported the title “lost or stolen,” and obtained a duplicate title for the GMC truck. Dave
subsequently went to the Briners’ home and took the GMC pick-up truck. He explained in a sworn
statement:
On January 25, 2005, I took a truck from the residence of the Briners.
On that day, I called the Ontario Police after I picked up the truck. I spoke
to a dispatcher first and thereafter I talked to Chief McClaran.
I have known Chief McClaran for many years and we have always been
friendly, but we are not close friends and we do not socialize with each other.[5]
This whole thing was about me trying to protect my son. I felt he was being
taken advantage of. They [the Briners] had fired him just 13 days before Christmas,
a man with five kids, who was experiencing drug problems, and then they did not pay
him his last paycheck. They also refused to fix a clutch on a truck as they had
promised my son. I took the truck in order to make these things right. If the Briners
and F & W had paid my son back what they owed him, I would have given them their
truck back at any time. I held it for well over a year.
I told my son I would take care of this mess and this is what I did. I simply
called the Ontario Police. I did not lie to the Ontario Police or Chief McClaran about
this at all. I did not claim that this was a court order, or that I had any lien, or that
this was a lawful repossession or recovery.
(underlining in original, italics added).
When Dave Paone called Chief McClaran, Chief McClaran assured him that the police would
not interfere. Chief McClaran then told the dispatcher that, if a call came in from the Briners, the
5
At one point during his deposition testimony, Chief McClaran testified that he and Dave are friends and while
they don’t “socialize,” he sees and speaks with Dave at least once a month.
5
dispatcher should not treat it as a theft, but should simply process a report because it was not a theft,
it was a legal repossession of a truck.6 When the Briners called the police to report their truck stolen,
the dispatcher — having been instructed by Chief McClaran — replied that “Chief McClaran said
the truck was not stolen because it is back in the hands of its rightful owner.” First Am. Compl. at
¶ 26.7 The Briners allege that, because Dave never told Chief McClaran that he lawfully repossessed
the GMC truck, Chief McClaren was denying legitimate requests for police assistance in retaliation
for the Briners’ complaints against the Department.
The Briners continued to press their case. They went to the police station to file a report
concerning the theft of their truck and presented their copy of the title which had been signed by
Larry Paone. Officer Tom Hill was assigned to take the Briners’ statements and begin the
investigation. Officer Hill took the Briners back to an interview room and, unbeknownst to the
Briners, videotaped this conversation. Officer Hill testified that, prior to this time, he was aware of
the Briners’ complaint about Officer Wallace regarding the civil stand-by, which Officer Hill
characterized as a “false or unfair complaint,” and that was the reason he chose to videotape the
conversation. The Briners gave their statement to Officer Hill, indicating that Larry Paone had stolen
the GMC truck, and then left the police station.
Officer Hill noted two concerns about the title provided by the Briners. First, because the
6
Note that Dave Paone stated, in his sworn statement, that he did not tell Chief M cClaran it was a lawful
repossession.
7
W hen asked about this determination of ownership on the witness stand, Chief McClaran was emphatic:
[Question]. If Dave Paone said he had the title, that was then end of it, you believed him, don’t
believe somebody else that comes in with a valid certification of title. You’d
already made that conclusion.
[McClaran]. Based on what Mr. Paone told me, yes.
McClaran trial testimony at Melanie Briner’s criminal trial (hereinafter, “McClaran Trial Testimony”) at 170.
6
Briners had not yet registered the transfer, the title was “open” and still in Larry’s name. Second,
there were certain hand-written alterations to the transaction page of the title.8 Due to these
concerns, Officer Hill decided that the Briners would need to prove they actually owned the truck
before he could legitimately consider it a theft.
Officer Hill called Dave, who told him that he and Larry had “repossessed” the truck because
the Briners breached their agreement on the trade, and told Officer Hill where to reach Larry. Officer
Hill then called Larry, who told Officer Hill the same thing. Later that day, Dave came to the police
station and provided the duplicate title Larry had obtained by claiming the original title had been lost
or stolen. Officer Hill provided Dave with a witness statement form. Dave took that form home to
Larry, who filled it out, indicating that he had not gone to F&W on December 30, 2004, but had been
with Dave all day.9 When Dave returned to the police station with Larry’s completed witness
statement, Officer Hill verified it as though he had taken the statement himself. Officer Hill later
admitted, under oath, to falsifying this verification.
Officer Hill then requested that the Briners come to the police station to answer some
questions. Officer Hill took them to the interrogation room and informed them that he would be
videotaping the interview. Officer Hill repeatedly asked Ms. Briner whether anyone else at F&W
had seen Larry sign the title on December 30. Ms. Briner first indicated that no one had seen Larry
sign the title and later, after being pressed by Officer Hill, indicated that she did not believe anyone
had. Officer Hill urged her to question F&W employees and obtain statements from anyone who
8
In the space provided for the date of delivery, the number one in “12/1/04" had been over-written with the
number 30, to read “12/30/04.” In the notary’s box, the two in “20th day of Dec.” had been over-written with a three,
to read “30th day of Dec.” Finally, the price and odometer reading had not been filled in.
9
The fact that Larry offered, and Officer Hill accepted, a witness statement regarding the events at F&W on
December 30, 2004, rather than events surrounding the alleged theft of the truck by Larry and Dave, is some evidence
that Officer Hill was not engaged in investigating the theft, but had already begun investigating Ms. Briner.
7
had.10 Officer Hill also repeatedly asked Ms. Briner, in a variety of ways, whether she had changed
the title, to which Ms. Briner responded that she had not. At her deposition, she explained that, even
when Officer Hill specifically asked her about the specific changes Officer Hill was concerned about,
she had understood him to be asking whether she had changed it after Larry took the truck (i.e., after
January 25). Because she had changed it at the time she notarized the title (that is, she changed them
both on December 30, in order to complete the form accurately, so she thought), she adhered to her
statement that she had not changed the title. Officer Hill, however, thought that he had caught her
in a lie, and apparently, could not contain his satisfaction. At her deposition, Melanie Briner testified
about the conclusion of this interview as follows:
Question: Now, at some point in time during the deposition earlier today you
said that the police never believed anything that you told them, true?
M. Briner: Yes.
Question: When did you come to that conclusion?
M. Briner: Pretty much the night of January 25th when I found out that all that happened
was Larry Paone got a phone call. Dave Paone pretty much just talked to the
chief and they didn’t - - they [the Ontario Police] made no indication that they
were going to look into the duplicate title, how it was obtained, because I said
it had to have been obtained fraudulently. I had possession of the truck.
Nobody [had] filed a report against me for having the truck.
Question: So on January 25th, ‘05, you had concluded that the City of Ontario would
not believe you; is that true?
M. Briner: When [Officer] Tommy Hill was yelling at me in the hallway, better get a
good lawyer, Mrs. Briner.
M. Briner Depo. at 24-25.
Shortly thereafter, Officer Hill handed the investigation over to Det. Snavely, who appears
10
It is unclear how the December 30 events at F&W are relevant to a determination of whether the GMC truck
had been stolen, as it is undisputed that Larry, at some point on or prior to December 30, 2004, provided the Briners with
the title to the GMC truck. Much clearer is the relevance of the December 30 events at F&W to Officer Hill’s apparent
investigation of Ms. Briner.
8
to have formally abandoned any investigation of theft of the GMC truck and focused solely on the
alleged false statements. On January 28, 2005, Det. Snavely took the title that Melanie had given
to Officer Hill to the Richland (Ohio) County Clerk of Courts and showed it to three different
employees there. Det. Snavely alleges that all three employees told him that the title was void
because it had been altered and because the purchase price and mileage had not been filled in. The
alleged statements by these employees, however, do not comport with the official policies and
procedures of the Richland County Clerk’s office. The Richland County Clerk later explained that
any such statements were erroneous and should not have been made, and indicated in an official
letter to the Ontario City Law Director, dated February 21, 2006, “that our normal practice is not to
question notary information on titles as it is not our job to question the purchase price, notary
information, or odometer statements.”11
Det. Snavely took no further action on the case until March 10, 2005. The Briners, however,
continued their attempts to move the investigation along. In response to Officer Hill’s request that
they question F&W employees regarding the December 30 events, the Briners provided the
Department with the statements of three F&W employees (Bob Myers, Bob Buckholdt, and Debra
Hissong) who indicated that Larry had been at F&W on December 30 to provide the title. Ms. Briner
typed the statements, each employee signed his or her statement, and the statements were notarized.
Mr. Briner took the statements to the police department on February 16 or 17 but the Department
took no further action at that time.
The Briners aired their complaints regarding the investigations, or apparent lack thereof, to
11
W hile the County Clerk’s letter does appear to confirm that Det. Snavely did converse with certain County
Clerk employees, it indicates that the conversation occurred during “the summer of 2005,” while Det. Snavely alleges
that the conversation took place in January 2005. Moreover, the letter states only that the employees informed Det.
Snavely that they would have “questioned” the information, not that the title would have been void, as alleged by Det.
Snavely.
9
the Mayor. It is unclear whether the Briners leveled any complaints during their January 25th
interviews, so their protest to the mayor appears to be their second complaint about the police. No
action was taken after their complaints to the Mayor, so on March 10, 2005, Mr. Briner called
Service-Safety Director Jim Hellinger, who had supervisory authority over the Department. Chief
McClaren was in Director Hellinger’s office at the time, so Director Hellinger put the call on speaker
phone. Director Hellinger and Chief McClaren then listened as Mr. Briner inquired about the
investigation and complained about the lack of progress and the police in general (including Chief
McClaran). This telephone call constitutes at least the Briners’ third public complaint about the
police. Director Hellinger then asked Chief McClaran to respond, and Chief McClaran said he
would look into it.
After taking a look at the witness statements that the Briners had provided, either Chief
McClaran or Det. Snavely told Officer Hill to bring Debra Hissong, one of the F&W employees who
had provided a statement, into the station and question her about her statement.12 When Ms. Hissong
was brought to the police station, Officer Hill conducted the questioning.13
There is some evidence to indicate that Chief McClaran did not intend the Department to
pursue an investigation into the theft of the GMC truck, but rather to pursue their previous
investigation of Ms. Briner for false statements, to which they now added an inquiry into Ms.
Hissong. At Ms. Briner’s criminal trial, Chief McClaran offered the following testimony:
Q. You were convinced that Melanie Briner had not witnessed Larry
Paone sign the title in front of her at F&W on December 30th, 2004,
before you brought Deb Hissong in on March 10th.
12
It appears that the other two statements by F&W employees were ignored.
13
As previously noted, Det. Snavely, who appears to have been assigned to the case, had a prior history with
the Hissong family. Supra at __.
10
[McClaran]. Correct
McClaran Trial Testimony at 201. The tone and content of the Department’s questioning of Ms.
Hissong offers further evidentiary support for the Briners’ contention that Chief McClaren responded
to complaints about his performance, and the performance of the Department, by the Briners by
furthering an investigation into their alleged crimes, rather than the alleged crimes against them.
Ms. Hissong had asserted in her sworn statement that she had been in the F&W office on
December 30, 2004, and had observed Larry sign the title to the GMC truck in Ms. Briner’s office.
Officer Hill thought this was a false statement. In questioning Ms. Hissong, Officer Hill insisted that
he knew that Larry had not been at F&W on December 30. Officer Hill also showed Hissong the
video in which Melanie Briner had said that no one had seen Larry sign the title in her office.
Finally, Officer Hill, Chief McClaran, and perhaps others threatened Ms. Hissong that she would be
charged with a felony for filing this false statement and the only way she could avoid prosecution
was to recant her statement and accuse Melanie of wrongdoing. The theory of the Department and
its personnel appears to be that, because Ms. Briner had typed the statement, she had fabricated the
story and solicited Ms. Hissong to sign it.
Eventually, Ms. Hissong did recant her statement and indicated that Ms. Briner had asked
her to sign the allegedly false statement. Shortly after leaving the police station, she called the
Briners and asked to meet so that she could apologize, explain what had happened, and warn them
regarding what she believed to be the Department’s intentions regarding Ms. Briner. In her
deposition testimony, Ms. Briner recounted the meeting:
[Debra Hissong] was visibly upset and crying, stated that [Officer Hill, Chief
McClaran, and perhaps other members of the Ontario police] pretty much told her
they were, in her words, she said they were giving Larry Paone an alibi and said they
knew where he was on the 30th, so she said, I thought maybe I had the date wrong,
11
and she said they kept telling her if she didn’t - - in her mind, if she didn’t change her
statement, they would charge her with falsification. They were opening up books and
showing her things, telling her stuff, and she was - - she was very upset, I think.
...
She stated that they took her back into the chief’s office and spoke with her
there, and that they did show her some of the video that had been taken of me, and
just very intimidating, talking to her, just kept saying over and over, we believe the
statement is false, you know. If you stand by this statement, you are going to be
charged with falsification. She said the chief kept patting her on the knee in the
office saying, Debbie, the truth will set you free and she was just very, very upset.
M. Briner Depo. at 68-69. This issue came up at Ms. Briner’s criminal trial14 as well, and Chief
McClaran testified:
Q. And that’s why the end of the videotape of [Debra Hissong’s]
statement shows you standing there with the Ontario ordinances in
your hand saying, You’ve got a heck of a break here, you could be - -
you could have been charged with falsification, felony falsification.
[McClaran]. I believe it was a misdemeanor, not a felony.
Q. I know it’s a misdemeanor, but you said on the tape it was a felony.
[McClaran]. That could be. I don’t know.
McClaran Trial Testimony at 205. At his deposition in the case before the district court, Chief
McClaran testified as follows:
Q. Right. But it was only after you mentioned the possibility of Ms.
Hissong being prosecuted that she changed her statement and agreed
to make a new one, right?
[McClaran]. Yes.
McClaran Depo. at 94.
Ms. Hissong testified at Ms. Briner’s criminal trial and insisted, under oath and subject to
cross-examination, that her original statement (that she had seen Larry sign on December 30) had
14
W hile M s. Briner was not immediately charged with a crime, criminal charges were eventually brought against
her and, as described below, later dismissed with prejudice.
12
been the truth and that she changed her story on March 10 due to confusion and intimidation by the
Ontario police. Prior to Ms. Briner’s criminal trial, Ms. Hissong had also met with former Assistant
Law Director Catherine Beilstein and had recanted her statement to the police and reaffirmed her
original sworn statement.
On March 11, 2005, the same day that Ms. Hissong was questioned and only one day after
Mr. Briner had called Director Hellinger to complain about Chief McClaran and the Department,
Chief McClaran sent a letter to the Briners, which stated:
March 11, 2005
Mr. Tom Briner
F & W Towing
1616 W. Fourth St.
Mansfield, Ohio 44906
Ref.: Towing for Ontario Police Department
Dear Sir,
As you are well aware of, the Ontario Police Department is currently investigating
the circumstances surrounding the case of a Breaking and Entering of your business
on December 20, 2004. Officer Snavely has advised me that he has contacted or left
numerous messages for your employees to contact him and as of this date only one
has done so.[15] At this point that case is not progressing forward until those
individuals contact Officer Snavely for statements.
As to the investigation of the truck that you contend was stolen from you by Larry
Paone Sr, this case is moving forward. In this case it appears that there is some
questionable conduct on the part of F&W Towing and until such time [as] these
issues are resolved I am removing you from the towing call out list.
Should you have any questions feel free to call me.
Chief T.D. McClaran
15
Det. Snavely testified at his deposition that he had spoken with other F&W employees by telephone, that they
had agreed to give statements, but that they were unwilling to come to the police station to do so. He stated that he would
not go to meet them because he only does interviews at the station. This appears to be contradicted by the fact that he
went to M r. Hamm’s home at the outset of the original burglary investigation. It also does not appear that it is official
Department policy to only conduct interviews at the station, as Officer Hill repeatedly spoke with the Paones by
telephone in conducting his investigation into the alleged robbery of the GMC truck and Ms. Briner’s alleged false
statements.
13
The purpose of this letter — as evidenced by the “Ref.” line and Chief McClaran’s deposition — was
to inform the Briners that they had been removed from the towing call list. At several points in his
deposition, Chief McClaran indicated that at least one of his reasons for his removing the Briners
from the towing list was his irritation with their complaints about and criticism of the police
department, but elsewhere in his deposition he stated that he did not remove them from the towing
list for that reason.
Within a short period of time, F&W received similar notifications from other area
municipalities, with the result that F&W was removed from every towing call list in the area, and
without that work (and with the cost of defending Ms. Briner against criminal charges), F&W went
out of business. The Briners allege that this occurred because Chief McClaran “began
communicating false and defamatory statements about the Briners to others in the area business and
law enforcement circles.” At his deposition, Chief McClaran denied that he had spread such rumors,
but said that he had heard complaints about slow response times and missing vehicles.16 The Briners
dispute this, however, and there is no documentary evidence supporting a claim of slow response
times and neither F&W or anyone working there was ever charged with theft of any allegedly
missing vehicles.
Although Chief McClaran had indicated that F&W would be removed from the towing call
list until the questions surrounding “questionable conduct” by F&W were cleared up, it does not
appear that any effort at clearing up those questions was made, as it appears that the Department
ceased all inquiry into any of the alleged crimes against the Briners, or into those allegedly
committed by them, following Chief McClaran’s March 11 letter. Det. Snavely did not pursue any
16
Chief McClaran testified that a Mansfield police officer had told him that F&W had towed 30 vehicles for
them, but when they went to inventory the vehicles, they could only locate five.
14
further investigation into the burglary, he did not consult the prosecutor, and he did not charge Mr.
Hamm or anyone else with the crime. Neither Det. Snavely nor Officer Hill pursued any
investigation of the truck theft, neither consulted the prosecutor, and neither charged Larry or David
Paone with the theft of the truck. Finally, neither Chief McClaran nor Officer Hill pursued any
further investigation of the alleged false statements by Ms. Briner; they did not interview her or any
other witnesses, they did not consult the prosecutor, and they did not charge her with any crime. As
described below, however, the investigation into Ms. Briner’s alleged wrongdoing was eventually
revived, allegedly as a result of further complaints by the Briners against the defendants.
On April 1, 2005, the Briners sued Larry and Dave Paone in Mansfield Municipal Court and,
following a bench trial, eventually recovered $5,475.85 for the unlawful conversion of the pick-up
and another theft by Larry. The court made, among others, the following specific findings of fact:
14. Larry delivered the title for the ‘93 [GMC pick-up truck] to [the
Briners] on December 30, 2004. The Court finds that he did in fact
sign the title in front of Melanie Briner, a notary.
17. The Court further finds that based upon an applicable law governing
legal repossession of an auto, neither Larry [n]or his father had the
legal right to retake possession of the ‘93 truck using self help.
28. Based upon the relevant evidence before the Court and the credibility
of the witnesses, the Court finds that the Defendant Larry Paone
breached the oral contract between he and the [Briners]. Larry did
not have the right to attempt to rescind the contract in part as there
had been full performance by the [Briners]. The [Paone]s have not
met their burden of proof showing that the [Briners] breached the oral
contract in any way.
Mansfield Municipal Court Judgment, May 4, 2006.
In June 2005, the Briners undertook an effort to get a proposal on the November ballot for
a “Citizen’s Police Review Board.” The Briners began circulating petitions (dated June 30, 2005)
and Mr. Briner placed a sign in his front yard, stating “Vote for the Police Review Board, we need
15
honest police.” This act constitutes the Briners’ fourth public complaint about the Department. Mr.
Briner also posted a “For Sale” sign on the F&W property.
Before posting the signs, Tom Briner consulted the zoning inspector, Dallas Strickler, and
Mr. Strickler told him that they were permissible political and real estate signs. A short time later
— in late July or early August — Mr. Briner modified the political sign by adding content to the
other side, something to the effect of “Ask the Chief about his past.” Mr. Briner did not consult Mr.
Strickler about this modification.17
Chief McClaran perceived this as a personal attack and called the City’s Law Director,
Rebecca Thomas,18 and Mr. Strickler to make a complaint and to inquire about the legality of the
sign. Mr. Strickler apparently agreed with Chief McClaran that the modified portion of the sign was
not political but was a personal comment about a particular member of the police force (i.e.,
McClaran). Mr. Strickler telephoned Mr. Briner and told him to take it down, but Mr. Briner
refused. Mr. Briner insisted that, because Chief McClaran was a public figure, he had a right to
criticize him. Mr. Briner further modified the sign and, following additional complaints, still refused
to remove it.
The Briners received a number of phone calls and letters from Mr. Strickler, threatening to
refer the matter to Ms. Thomas. Mr. Briner responded that he was acting on the advice of the
American Civil Liberties Union (“ACLU”), who had advised him that he was within his rights to
17
It is undisputed that, from that point on, Mr. Briner changed the signs often, too often for anyone to recollect
with any specificity what they said when. It is conceded that they were consistently critical of the City, the Department,
and often Chief McClaran, specifically.
18
In addition to being the Law Director, Rebecca Thomas also had a private practice. One of her private clients
was Larry Paone, whom she had represented in a child-support proceeding. The Briners allege that Ms. Thomas, perhaps
in concert with Chief McClaran, spread a rumor that the reason Larry Paone had been prosecuted for child support was
that, while Larry worked at F&W , the Briners had withheld child-support from his paycheck but had kept it for
themselves rather than giving it to Larry’s wife and children.
16
post the signs. Mr. Strickler ceased his attempts to compel Mr. Briner to take down his signs only
after Mr. Briner provided Mr. Strickler with a copy of the ACLU advisory letter. Other members
of the Department also made their displeasure at the Briners’ signs known. Mr. Briner, in his
deposition testimony, stated:
I had cruisers, Ontario Police cruisers parked across the street for long periods of
time. I had them pulling in beside us on the left side of the property setting [sic] for
periods of time. I noticed the same cruisers going up and down looking at the signs,
just a little bit of, form of intimidation, I think.
T. Briner Depo. at 62-63. While the actions by Mr. Strickler and the Department were insufficient
to convince the Briners’ to remove their signs, Mr. Briner stated that they “made my wife nervous
and things of that nature.”
In late August 2005, it was announced that the Citizen’s Police Review Board petition had
gathered enough signatures to be put on the November 2005 ballot. Upon learning that the issue
would be placed on the ballot, Chief McClaran went to clerk’s office to investigate:
Question: After you learned [that this issue would be placed on
the ballot], did you go over to the office of the clerk
where those petitions were and demand to see them
and take down the names of all the people who had
signed those petitions?
McClaran: I got copies of the petitions.
Question: You did that the first day that you learned they were
in there, didn’t you?
McClaran: I don’t recall what day it was.
Question: And whose office did you have to go to to get those
names?
McClaran: Clerk treasurer.
...
Question: And what did you say to [to the clerk] when you went
in there?
17
McClaran: Asked her for copies of them.
Question: Did she provide them to you?
McClaran: Yes.
Question: Was this during the daytime when their office was
open?
McClaran: Yes.
Question: And you were on work yourself? You were working?
McClaran: Yes.
Question: And this was official police business?
...
McClaran: No, it wasn’t official police business.
Question: Well, what was it?
McClaran: I guess it would be personal business.
Question: What was your purpose in going over there?
McClaran: To get copies of the petitions.
Question: I understand. But why did you want to know the
names of the persons who appeared on those
petitions?
...
McClaran: I just wanted to see what signatures were on there and
if they were valid.
Question: Did you take those names back to your office at the
police department?
McClaran: I took them home.
Question: Did you do anything with that information that you
can remember here today?
McClaran: No.
McClaran Depo. at 38-41. It is unclear from the record whether any private citizen could have
arrived at the clerk’s office and immediately obtained copies of the petitions, or whether McClaren’s
position as the Chief of Police allowed him access to these documents for his personal use.
18
At this point, Chief McClaran apparently began to request that the prosecutor file felony
charges against Ms. Briner, based on her statements concerning Larry Paone and the alterations to
the dates on the pick-up truck title. The Richland County prosecuting attorney, Brent Robinson, sent
the following letter to Chief McClaran:
August 18, 2005
Chief Timothy McClaran
Ontario Police Department
555 Stumbo Road
Ontario, Ohio 44906
Re: Request for charges on Melanie Briner
G.O. # 200500814
Dear Chief McClaran:
Per your request through Off. Riley Snavely, I have taken a second look at
felony charges in the Melanie Briner matter. Once again, I have concluded that her
conduct does not rise to the level of a felony offense. However, I do believe she has
committed some misdemeanor offenses. I would suggest you present the matter to
the Ontario Law Director for possible misdemeanor charges.
If you would like to discuss this matter further, please do not hesitate to call
me at [].
Sincerely,
Brent N. Robinson
Chief Criminal Assistant
Prosecuting Attorney.
Mr. Robinson indicates that this was Chief McClaran’s second request for felony charges, indicating
that the Chief had previously inquired as to the possibility of bringing charges. When asked at his
deposition when he had previously requested felony charges against Ms. Briner, Chief McClaran
testified that he didn’t know when it was submitted the first time, that Officer Hill had done it.
Officer Hill, however, testified that he did no such thing.19 In his deposition testimony, Officer Hill
19
In his affidavit, prepared and submitted later, Officer Hill averred that Det. Snavely had done it, but Officer
Hill did not specify when.
19
testified as follows:
Question: After the interview [or] meeting that you and Chief
McClaran had with Debbie Hissong that day, what
was the next thing you did in regard to this matter?
Off. Hill: Nothing until late August, I think, of 2005.
Question: So you’re involved on January 25th and 26th, then
you don’t hear much about it until March 9th and 10th
[i.e., Hissong interrogation], and you have this work
you’ve just described for us. Then you don’t hear
about it again until roughly August; is that fair?
Off. Hill: Yes.
Question: What was the next contact that you had with this
dispute after Ms. Hissong?
Off. Hill: Chief McClaran contacted me when I arrived at work
one day and told me that he had spoken to the law
director and that she had reviewed the case and that I
was to charge [Ms. Briner] with falsification,
tampering with records, and complicity to
falsification.
Question: This was some date in August, but you couldn’t tell us
exactly when; is that fair?
Off. Hill: The 22nd or 23rd, I believe.
Question: Very good.
Off. Hill: Late August.
Question: As best you can remember, was this the very next
time the chief had talked to you about this Briner
dispute with the Paones after you’d had your meetings
with Debra Hissong?
Off. Hill: Yes.
Question: And you don’t recall any other discussions in between
there until August 22nd or 23rd between you and the
chief?
Off. Hill: No.
Hill Depo. at 17.
20
Det. Snavely testified that, according to normal protocols, he would have been the one to
submit charges to the prosecutor, and there is some evidence to indicate that Det. Snavely was the
individual who did so, but he did not offer any dates as to when this was done. It is unclear why Det.
Snavely would file the request for felony charges when he did not conduct the interview, prepare the
case, or testify. In the end, it was Officer Hill who filed the request for misdemeanor charges.
On or about August 22 or 23, 2005, the city law director filed three misdemeanor charges
against Melanie Briner: (1) tampering with records, (2) falsification, and (3) complicity to commit
falsification. Officer Hill testified that these charges were filed with the explicit knowledge and
approval of Chief McClaran:
Off. Hill: I’m not the one that decided we were going to charge
anybody with anything. I was ordered to do so by
[Chief] McClaran.
Question: Maybe I’m making an assumption here. You did not
make a probable cause determination on these charges
independently, did you?
Off. Hill: No.
Hill Depo. at 21. Ms. Briner entered a “not guilty” plea and prepared for trial.
In November 2005, while Ms. Briner was awaiting trial, the Citizen’s Police Review Board
initiative came up for a vote and the citizens of Ontario voted it down. But, the petition did prompt
an external audit of the police department and a report dated November 2005, which included some
interesting findings. For example:
“It is also recommended that the City examine why employees are not more willing
to take their concerns to the chief. The chief’s attitude and management style seem
to be a consistent complaint.” Employee Relations Audit Report at 8.
“[A]lmost every employee of the department commented that discipline is not
handled fairly or consistently among employees. The perception is [that] whether
you are disciplined [or not] depends on who you are, your relationship to the
command staff, and the mood of the chief on that particular day. Both consultants
21
found the employees to be satisfied with the discipline of the command staff, but the
majority [of employees] feel the chief is out of control.” Id. at 11.
“Many of the employees felt that the chief does everything possible to make their
jobs miserable and to keep the Mayor and [S]ervice-[S]afety [D]irector in the dark
. . . . When asked to provide suggestions on how communication might be improved,
the majority of the employees conveyed that the only way communications can be
improved within the department is by eliminating the intimidating atmosphere
created by the chief.” Id. at 13.
“The majority of responses (everybody but one) recommended removing the chief
from employment.” Id. at 14.
It is noteworthy that Chief McClaran himself participated in the survey. It was reported that Chief
McClaran was terminated as a result of this report, but the record reveals that he was still the chief
as of March 2006 when he testified at Melanie Briner’s trial.20
Sometime prior to Ms. Briner’s trial, the prosecutor moved to dismiss the charges of
“tampering with records” and “falsification” and the Municipal Court granted the motion. The trial
proceeded, therefore, on only one charge: “complicity to commit falsification,” based on the claim
that she had solicited Ms. Hissong to make a false statement. The prosecution produced three
witnesses: Chief McClaran, Officer Hill, and Ms. Hissong. While under oath, Ms. Hissong recanted
her “confession,” insisted that her original statement had been true, and testified that Melanie had
not solicited any false statement. At the conclusion of the prosecution’s case, the defense moved for
acquittal or, in the alternative, dismissal on the basis that the criminal complaint did not specify the
20
In fact, the record reveals that Chief McClaran was still the chief as of June 28, 2006, when he sent the
following email to Mr. Strickler and Ms. Thomas:
“I arrived at work this am and was advised that Briner had a newly worded sign and was provided with
a picture. The wording is ‘TO THE CITY OF ONTARIO I AM W ILLING TO DIE FOR M Y
FREEDOM OF SPEECH ARE YOU W ILLING TO DIE TO TAKE IT AW AY’. I have been advised
by employees that they are concerned for them and their families if they should have any contact with
Briners. I also have concerns for the safety of my family. I believe this is a direct threat for anyone
who works for the city. Please address this situation as soon as possible.”
According to the City of Ontario’s website, McClaran is no longer the chief of police.
22
elements of the offense or the conduct she had allegedly committed that would satisfy those
elements. The court agreed and dismissed the charge on May 5, 2006.
Sometime in early 2006, the Briners had begun to complain about the police department at
the City Council meetings. These complaints constitute at least their fifth public complaint about
Chief McClaran, the Department, and the City. At a City Council meeting on March 2, 2006, Mr.
Briner made a statement critical of Chief McClaran, Ms. Thomas, Officer Hill, and several other City
officials and police officers.
At a City Council meeting on May 18, 2006 — the first City Council meeting after the court
had dismissed the charges against Ms. Briner on May 5, 2006 — Ms. Briner addressed the City
Council. She was very critical of the police department and various other city officials and
complained about the fact that charges had been brought against her. The Council president
explained that these were not matters the Council would address.
The Briners filed the present lawsuit on January 17, 2007, pursuant to 42 U.S.C. § 1983 and
various state-law causes of action. They named the City, Chief McClaran, Det. Snavely, Officer
Hill, and Zoning Inspector Strickler.21 Their federal claims included: First Amendment retaliation;
malicious prosecution; takings and denial of due process; conspiracy; municipal liability;
defamation; First Amendment abridgment of free speech; and denial of equal protection (with
respect to their yard signs). Their state claims included: malicious prosecution; intentional infliction
of emotional distress; civil conspiracy; defamation, invasion of privacy; tortious interference with
contracts; and tortious interference with business interests.22
21
The Briners also named Ontario Police Sargent Richard Bevier and Safety-Service Director Charles Au, but
subsequently dismissed these two defendants.
22
The Briners subsequently withdrew the intentional infliction of emotional distress claim, conceded that the
City was immune under state law, and conceded that the state defamation claim was time barred.
23
Mr. Briner attempted to address the Council at the February 1, 2007, meeting, but was told
by the Council president that he could not speak about the pending litigation. When Mr. Briner
continued to do so, the president found him out of order and had him removed from the room by a
police officer. At the next available opportunity, the February 15, 2007, meeting, both Mr. and Ms.
Briner addressed the Council with respect to the same complaints.
In their federal complaint, the Briners allege that, due to their complaints about the police
department and their attempts to speak out about their complaints in public, the defendants entered
into a sustained pattern of retaliation that resulted in false charges being filed against Ms. Briner, the
destruction of their towing business (which they were forced to close on April 21, 2006), and
significant business and personal losses, including medical damages, public humiliation, and legal
fees.
Both sides moved for summary judgment and in so doing, submitted numerous competing
motions. Ultimately, the district court denied the Briners’ motions and granted summary judgment
to all defendants on all claims, albeit in two separate orders.
In the first order, the district court granted summary judgment to defendants on nearly all
counts. After a 10-page recitation of facts and stating the standard for summary judgment, the
opinion begins with a lengthy criticism of the Briners’ complaint and concludes with the following:
“In view of Plaintiffs’ failure to plead Claim 6 [federal defamation] with any specificity despite
having filed an amended complaint, the Court hereby DISMISSES Claim 6.”23 Mem. Op., April 16,
2008, at 16.
23
Notably, defendants never filed a motion for a more definitive statement, pursuant to Fed. R. Civ. P. 12(e),
the appropriate means by which to obtain more specificity with regard to plaintiffs’ claims. It therefore appears that the
district court dismissed Claim 6 sua sponte.
24
The court then conducted a claim-by-claim analysis, beginning with the claim of First
Amendment retaliation. The Briners had identified five separate incidents of retaliation, and the
court rejected all but the first. As to the first (the claim that Chief McClaran had removed them from
the towing list in retaliation for their complaining about the police department), the court relied on
Chief McClaran’s conflicting statements on this question during his previous trial testimony and
during deposition — at one point Chief McClaran stated that he had removed F&W from the towing
list because of the Briners’ criticism and elsewhere he stated that he had not. Based on this
conflicting testimony, the court denied summary judgment on this issue. The court rejected the
claims based on the four other alleged incidents, further addressing at least two of them elsewhere
in the opinion.
Next, the court granted summary judgment to the defendants on the Briners’ claim of
malicious prosecution. The court explained that probable cause to bring the charges defeats any
claim of malicious prosecution, and found that “there is plenty of undisputed evidence in the record
to establish probable cause” for bringing the charges against Ms. Briner. Id. at 23.
The district court granted summary judgment to the defendants on the takings claim by
finding that the Briners had no entitlement to being on the towing list. The district court granted the
defendants summary judgment on the conspiracy claim by finding that Chief McClaran was solely
responsible for any harm, and could not have conspired with himself.
Relying on its earlier denial of summary judgment on the single First Amendment retaliation
claim, the court denied summary judgment on the municipal liability claim. The court found that
if Chief McClaran was liable, then the City was liable as well.
The district court granted summary judgment to the defendants on the Briners’ claim that
they were denied the right to speak at public meetings, finding that Mr. Briner was not denied the
25
right to speak because he was not “prevented from making appropriate public comments.” Id. at
29 (emphasis in original). The court granted summary judgment to the defendants on the equal
protection claim by finding that the Briners were never forced to take down their signs.
Finally, the district court declined jurisdiction over the state law claims, citing 28 U.S.C. §
1367(c)(3), which states: “The district courts may decline to exercise supplemental jurisdiction over
a claim under subsection (a) if. . . the district court has dismissed all claims over which it has
original jurisdiction” (emphasis added). Because the district court had denied the grant of summary
judgment on one claim of First Amendment retaliation and the municipal liability claim, there yet
remained claims over which the district court retained original jurisdiction.
Chief McClaran and the City moved the court to reconsider its decision, arguing that the
court had misunderstood the chronology of events. Chief McClaran and the City argued that
McClaran had removed the Briners from the towing list in March 2005, but that the Briners had not
posted the first of the critical yard signs until June 2005. Therefore, according to Chief McClaran
and the City, the Briner’s criticisms could not have motivated McClaran’s decision to remove them
from the towing list because the public criticisms did not occur until after the removal. The district
court agreed, granted reconsideration, and granted summary judgment to Chief McClaran and the
City, thus finalizing the case.
The district court, in its opinion, disregarded the Briners’ claims of retaliation, asserting that
Ҧ62 of the First Amended Complaint . . . simply makes no reference to any of these instances as the
basis for the [F]irst [A]mendment retaliation claim.” Mem. Op., May 2, 2008, at 6. The district
court also stated that the Briners allege that they were removed from the City’s towing list “because
they posted yard signs critical of [Chief] McClaran.” Id. at 7. The text of paragraph 62 says:
FIRST CLAIM - RETALIATORY CONDUCT
26
62. The said acts by the Defendants, including the dropping of Plaintiffs’
business from the towing list, and the vindictive prosecution of Melanie Briner,
constituted unlawful retaliation, motivated at least in part by an intention to
discourage and punish the Plaintiffs for exercising their constitutional rights,
including the right to criticize the police. Such retaliation violates the First
Amendment to the United States Constitution, and 42 U.S.C. §1983.
First Am. Compl. at ¶ 62. As discussed above, there were a number of distinct occasions where the
Briners could be seen as criticizing the police, including: the Briners’ complaints to Chief McClaran
about the Hamm investigation (¶ 15), the Briners’ complaints to the City (e.g., the Mayor) about the
police (¶ 34); and Mr. Briner’s complaint to Director Jim Hellinger about the Paone investigation
(¶ 34). Moreover, the Briners alleged multiple acts of retaliation by Chief McClaran and other
defendants, not simply being taken off the City’s towing list.
The district court also suggested that the Briners’s complaints about the police might not
even constitute the type of speech that is protected by the First Amendment. Mem. Op., May 2,
2008, at 8 n.5 (citing Helms v. Zubaty, 495 F.3d 252, 256-57 (6th Cir. 2007), for the proposition that
“every verbal complaint made to a government official does not rise to the level of protected
speech”). The court did not cite Houston v. Hill, 482 U.S. 451, 461 (1987) (“contrary to the city’s
contention, the First Amendment protects a significant amount of verbal criticism and challenge
directed at police officers”), even though the Briners cited it several times in their briefs on summary
judgment.
The Briners appealed almost the entirety of the district court’s ruling, raising 13 errors for
review. We have consolidated these claims where possible (e.g., claims that the district court erred
by denying the Briners’ motion for summary judgment and by granting the defendants’ motion for
summary judgment as to the same claim are combined this into a single claim of error).
ANALYSIS
27
This court conducts a de novo review of the grant of summary judgment. Walton v. Ford
Motor Co., 424 F.3d 481, 485 (6th Cir. 2005). Summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). “The evidence of the non-movant is to be believed, and all justifiable inferences are to be
drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
The Briners sued the defendants in both their individual and their official capacities. “In an
official capacity action, the plaintiff seeks damages not from the individual officer, but from the
entity for which the officer is an agent.” Pusey v. City of Youngstown, 11 F.3d 652, 657 (6th Cir.
1993). “[A]n official capacity suit is, in all respects other than name, to be treated as a suit against
the entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985). But, it also bears mention that Section
1983 does not permit a plaintiff to sue a local government entity on the theory of respondeat
superior. Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 692-94 (1978). A plaintiff
may hold a local government entity liable under § 1983 only for the entity’s own wrongdoing. Id.
A local government entity violates § 1983 where its official policy or custom actually serves to
deprive an individual of his or her constitutional rights. Id. This is a distinction the district court
may need to address on remand, with regard to the remaining defendants and the particular claims.
After careful review of the record, we conclude that this case must be remanded to the district
court. As illustrated by the “brief” summary of facts set forth above, the factual record in this case
is not insubstantial. That factual record, upon a motion for summary judgment, must be construed
in the light most favorable to the non-moving party, a sometimes difficult task when both sides have
moved the court for summary judgment. The summary of facts utilized by the district court in its
28
opinion, taken in isolation, might be seen as sufficient to award summary judgment, but placed in
the context of the larger record amassed in this case, we cannot conclude that the district court
appropriately considered all facts in the light most favorable to the non-moving party. While not a
comprehensive list of all factual disputes that preclude summary judgment, we offer the following
analysis as an aid to the district court in proceeding to trial.
1. First Amendment Retaliation Claim
The Briners stated five separate examples or instances of retaliation in their brief in
opposition to Chief McClaran’s motion for summary judgment on this particular claim: first, the
Briners allege that Chief McClaran and the Department refused to investigate the theft of the GMC
truck in retaliation for complaints regarding the Department’s alleged failure to properly investigate
the F&W burglary; second, the Briners allege that Chief McClaran removed F&W from the City
tow-list in retaliation for Mr. Briner’s complaints to Director Hellinger; third, the Briners allege that
Chief McClaran and the Department brought criminal charges against Ms. Briner in retaliation for
their Police Review Board proposal; fourth, the Briners allege that they were subject to legal threats
and harassment in retaliation for their lawn signs; and fifth, the Briners allege that they were
prohibited from speaking during City Council meetings in retaliation for filing the present lawsuit.
“To prevail on [a] retaliation claim, [p]laintiffs must establish (i) that they were engaged in
constitutionally protected conduct; (ii) that Defendants’ adverse action caused them to suffer an
injury that would likely chill a person of ordinary firmness from continuing to engage in that
conduct; and (iii) that the adverse action was motivated at least in part as a response to the exercise
of their constitutional rights.” Lucas v. Monroe County, 203 F.3d 964, 973 (6th Cir. 2000).
The Briners claim that their conduct in all five examples (criticism of the police) is
constitutionally protected speech. See Houston, 482 U.S. at 461 (“contrary to the city’s contention,
29
the First Amendment protects a significant amount of verbal criticism and challenge directed at
police officers”). The district court appears to have failed to consider the import of the Supreme
Court’s holding in Houston in reaching its conclusion, but there is sufficient evidence to permit the
conclusion that the Briners’ criticisms of the police were protected under Houston. Upon remand,
therefore, the district court must reconsider whether the Briners’ conduct meets the requirements for
protected speech.
With regard to the second and third elements of the Briners’ retaliation claims, there is
sufficient evidence, when viewed in the light most favorable to the Briners, to preclude summary
judgment. For each of the Briners’ five claims, there is sufficient evidence to support a finding of
injury which would likely chill further criticism of public officials. There is also sufficient evidence
to support a finding that Appellee’s actions were motivated, at least in part, in retaliation for the
Briners’ criticisms. As but one example, when the Briners reported the theft of their GMC truck,
they were informed that it wasn’t a theft, but that the rightful owner had taken back possession. This
was done at the command of Chief McClaran, who admitted he was annoyed by the Briners’
criticisms, even though the Paones admitted that they were taking back a truck based on a contract
dispute, and not based on who had a valid legal claim to possession. Officer Hill also testified that,
when the Briners arrived to give their statement, he videotaped their statement without their
knowledge, and that he knew about the Briners’ previous complaints about fellow officers, calling
the complaints false or unfair. His actions in conducting the investigation could also be interpreted
as investigating the Briners, rather than the Paones, who admitted to taking the truck in question.
This evidence indicates a genuine issue of material fact regarding the Briners’ first claim for
First Amendment retaliation. The Briners’ second through fourth claims are similarly supported by
sufficient evidence to create a genuine issue of material fact, as a reasonable jury could conclude that
30
the continued complaints by the Briners led to retaliatory removal from the City tow-list,24
prosecution of Ms. Briner for her allegedly false statements, and alleged threats and harassment
regarding the Briners’ lawn signs. With regard to the fourth claim, the district court held that there
was no injury because the Briners were never required to remove their signs. That determination,
however, fails to take into account the evidence presented that the Briners suffered some amount of
fear, intimidation, and anxiety as a result of the alleged legal threats and harassment. See Bloch, 156
F.3d at 679 (“the Supreme Court has held that, in the context of a § 1983 action, ‘compensatory
damages may include . . . such injuries as ‘impairment of reputation . . ., personal humiliation, and
mental anguish and suffering.’”) (quoting Memphis Comm. Sch. Dist. v. Stachura, 477 U.S. 299, 307
(1986), and Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974)). The existence of genuine issues
of material fact on these claims precludes summary judgment for either party on the Briners’ first
through fourth First Amendment retaliation claims. The district court’s grant of summary judgment
is reversed. Because this is a jury question, the district court’s denial of summary judgment to the
Briners is affirmed.
On the fifth retaliation claim, the Briners produced sufficient evidence to defeat summary
judgment on the question of whether Mr. Briner’s speech at the City Council meeting was protected,
but there is insufficient evidence to create a genuine issue of material fact on whether the City’s
actions constitute retaliation. We will therefore affirm summary judgment for Appellees on the fifth
retaliation claim.
2. Malicious Prosecution
“[T]his [c]ourt has yet to resolve the elements of a federal malicious prosecution claim, [but]
24
W e note that Chief McClaran appears to have admitted, under oath, that he removed the F&W from the tow-
list in retaliation for their complaints to Director Hellinger.
31
it is clear that a plaintiff must show, at a minimum, that there was no probable cause to justify his
arrest and prosecution.” Barnes v. Wright, 449 F.3d 709, 716 (6th Cir. 2006) (citations, quotation
marks, and editorial marks omitted). The Ohio law on malicious prosecution “requires proof of three
essential elements: (1) malice in instituting or continuing the prosecution, (2) lack of probable cause,
and (3) termination of the prosecution in favor of the accused.” Froehlich v. Ohio Dept. of Mental
Health, 871 N.E.2d 1159, 1162 (Ohio 2007). And, the Ohio Supreme Court has clarified:
1. In an action for malicious prosecution, the want of probable cause is the gist of
the action. If such be proven, the legal inference may be drawn that the
proceedings were actuated by malice.
2. In determining the want of probable cause, the defendant’s conduct should be
weighed in view of his situation and of the facts and circumstances which he
knew or was reasonably chargeable with knowing at the time he made the
criminal complaint.
Huber v. O’Neill, 419 N.E.2d 10, 11-12 (Ohio 1981) (quoting Melanowski v. Judy, 131 N.E. 360,
syllabus (1921)). The second provision is critical to this case.
A. Malice
Viewing the evidence in the light most favorable to the Briners, we find that there is
sufficient evidence in the record to support a jury finding of malice and raise a genuine issue of
material fact. Among other things, Chief McClaran admitted that he was annoyed with the Briners
for their criticism (and voiced a willingness to punish them for it). Det. Snavely and Officer Hill also
testified that they were offended. From the evidence, a jury could also conclude that this ill-will led
to the prosecution, as a jury could reasonably conclude that the intense focus on possible falsehoods
by Ms. Briner instead of investigating the Briners’ complaint regarding the alleged theft of their
GMC truck illustrates a desire to find some way to punish her for her and her husband’s complaints.
A reasonable jury could also interpret the decision to reinstate the investigation of Ms. Briner shortly
32
after the Briners’ ballot proposal succeeded in getting on the ballot as being motivated by malice.
B. Termination of the Prosecution in Favor of the Accused
The city law director originally filed three misdemeanor charges against Melanie Briner:
“tampering with records,” “falsification,” and “complicity to commit falsification.” The prosecutor
dismissed the first two charges prior to trial and they were never re-filed. The court dismissed the
third charge at the close of the prosecution’s case, a point at which jeopardy had attached.
Despite the defendants’ suggestions to the contrary, it is clear that this prosecution was
terminated in favor of Melanie Briner. The Briners have clearly met this element.
C. Probable Cause
The Ohio Supreme Court explained that “the want of probable cause is the gist of the action,”
and “[i]n determining the want of probable cause, the defendant’s conduct should be weighed in
view of his situation and of the facts and circumstances which he knew or was reasonably chargeable
with knowing at the time he made the criminal complaint.” Huber, 419 N.E.2d at 12. That is, we
must look behind a defendant’s mere assertion of probable case to consider his “view of his
situation” and “the facts and circumstances” which he knew or should have known. Id. It is this
caveat, which the district court failed to consider, that changes the complexion of this analysis.
The district court said “there is plenty of undisputed evidence in the record to establish
probable cause.” Mem. Op., April 16, 2008, at 23. When the entirety of the record is considered,
however, it is clear that the evidence which would support a finding of probable cause is far from
undisputed. When considered in light of what these defendants (Chief McClaran, Det. Snavely, and
Officer Hill) actually knew or should have known, given their view of the situation, a reasonable jury
could find that there was no probable cause to prosecute Ms. Briner. See Radvansky v. City of
Olmsted Falls, 496 F.3d 609, 614 (6th Cir. 2007).
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As but one example, we note that the district court relied on the apparent contradiction
between Ms. Briner’s earlier assertion that no one but she had seen Larry sign the title and the
subsequent statement from Ms. Hissong that she had seen precisely that. However, the full context
of Ms. Briner’s statement, known to Officer Hill, was that she didn’t believe anyone could have seen
into her office to see Larry sign the title. That Officer Hill was aware of the context of Ms. Briner’s
statement is clear from the fact that he repeatedly asked Ms. Briner to question her employees
regarding the events of December 30, 2004, in order to determine if anyone had seen anything. Ms.
Briner, therefore, could be seen as simply fulfilling Officer Hill’s request in obtaining statements of
those who saw Larry sign the title, in order to allow the investigation to progress.
Other facts also could support a jury finding that there was no probable cause to prosecute
Ms. Briner. Ms. Briner provided two additional sworn statements from F&W employees which
corroborated the statements by Ms. Briner and Ms. Hissong regarding Larry signing the title, but no
one at the Department ever investigated those statements. A jury could legitimately question why
Officer Hill would accept, without apparent question, the Paones’ assertion that Larry had not been
to F&W on December 30 when the facts appear to show that, also on December 30, he fraudulently
obtained a duplicate copy of the title to the GMC truck.25 Likewise, a reasonable jury could
determine that Officer Hill and Chief McClaran, among others present when Ms. Hissong recanted
her sworn statement, should have suspected that Ms. Hissong only recanted due to the extreme
pressure brought to bear on her. Finally, a reasonable jury could question the motives of those at the
Department in investigating Ms. Briner and Ms. Hissong after consideration of Det. Snavely’s
25
Larry repeatedly asserted that he had given the Briners the title to the GMC truck prior to December 30, 2004,
and never denied that he had transferred ownership of the GMC truck to the Briners, yet he obtained a duplicate title by
fraudulently asserting that the truck was his and that the title was lost or stolen, rather than having been given to the
Briners.
34
possible bias against Ms. Hissong and the fact that Chief McClaran had informed the Department
that it was not to pursue any investigation of the Paones for the theft of the GMC truck. This
evidence, along with other evidence in the record, creates a genuine issue of material fact regarding
the existence of probable cause to arrest Ms. Briner.
Because there are material facts in dispute, this question should go to a jury, and summary
judgment is not appropriate. The grant of summary judgment to the City, Chief McClaran, Det.
Snavely, and Officer Hill on this issue is reversed. The district court’s grant of summary judgment
to Mr. Strickler is affirmed, as there are no facts in the record suggesting that Strickler had anything
to do with initiating charges against Ms. Briner. Because this is a jury question, the denial of the
Briners’ motion for summary judgment is also affirmed.
3. First Amendment Claim Regarding the Yard Signs
The Briners claim that they posted yard signs as a form of political speech protected by the
First Amendment. They claim that the City, including certain police officers and the zoning
inspector (Mr. Strickler), unlawfully threatened and harassed them in response to these yard signs.
Specifically, they claim that Mr. Strickler repeatedly threatened them, by telephone, with
prosecution, and sent threatening letters (until they obtained assistance from the ACLU), and that
police cars routinely parked in front of their home for long periods of time in an attempt to intimidate
them. Although the Briners did not surrender and take down the signs, they were subjected to efforts
at intimidation by members of the Department and have alleged that they suffered some amount of
anxiety, fear, and intimidation.
The district court held that “the Briners’ [F]irst [A]mendment right of free speech was not
actually violated; they were not prevented from speaking by way of their yard signs. In other words,
they suffered no first amendment injury-in-fact.” Mem. Op., April 16, 2008, at 30. This is true, so
35
far as it goes. To the extent that they are attempting to make a claim for abridgment of free speech,
the Briners cannot survive summary judgment because their speech was not abridged. They said
plenty.
But the district court also held that this claim was “not pled as a retaliation claim. Therefore,
the Court does not construe the allegations of Claim 8 as part of the first amendment retaliation
claim contained in Claim 1.” Id. at 30 n.30. True, it might not have been pled that way, but it was
(and is) certainly argued that way. This claim must be treated as a retaliation claim. As such, the
Briners need not show that they were actually chilled from engaging in protected speech, but they
must still satisfy traditional standing requirements. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th
Cir. 1999). In Thaddeus-X, we held that “[a]s long as the injury is ‘distinct and palpable’ rather than
abstract, conjectural, or hypothetical, it is sufficient to confer standing.” Id. While the alleged injury
to the Briners is not severe, the allegations of fear, intimidation, and anxiety are not so ephemeral
as to be properly classified as “abstract, conjectural, or hypothetical,” and the Briners have
established standing.
We reverse the district court’s grant of summary judgment to the City and Chief McClaran
on this issue. We affirm the district court’s grant of summary judgment to Det. Snavely and Officer
Hill, inasmuch as there is no contention (or evidence) that they had anything to do with this.
Likewise, we affirm the district court’s grant of summary judgment to Mr. Strickler, as there is
insufficient evidence to support the existence of a conspiracy between Mr. Strickler and Chief
McClaran to punish the Briners’ for their criticism of the Department and Chief McClaran. And we
affirm the district court’s denial of the Briners’ motion for summary judgment.
4. First Amendment Claim Regarding the Public Meeting
The Briners assert that their right to address the City Council during the public comment
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section of a meeting is clearly established. See McBride v. Village of Michiana, 100 F.3d 457, 459
(6th Cir. 1996) (unlawful to remove a reporter from a public meeting); see also Riddle v.
Egensperger, 266 F.3d 542, 550 (6th Cir. 2001) (“Freedom to criticize public officials and expose
their wrongdoing is at the core of First Amendment values[.]”); Glasson v. City of Louisville, 518
F.2d 899, 904 (6th Cir. 1975) (“The right of an American citizen to criticize public officials and
policies and advocate peacefully ideas for change is the central meaning of the First Amendment.”).
The district court analyzed this issue as follows:
The record reveals that there is absolutely no basis in fact for this claim. . . .
Mr. Briner addressed the City Council on several occasions. In particular, Mr. Briner
spoke to the City Council on February 1, 2007, but was stopped by the Council
president when he began, inappropriately, to talk about the instant lawsuit; in fact,
he was escorted out of the meeting when he continued to speak after the Council
[P]resident told him he was out of order. There is no constitutional right to disrupt
city meetings by speaking out of order.
According to the undisputed facts established by Mr. Briner’s own testimony,
neither Mr. or Mrs. Briner was prevented from making appropriate public comments
at City Council meetings. Therefore, summary judgment in favor of the City with
respect to this claim is appropriate.
Mem. Op., April 16, 2008, at 28-29 (footnote omitted; emphasis in original). The district court did
not cite any legal precedent for its proposition that the government may limit speech to content it
deems “appropriate,” nor did it identify any objective criteria for determining whether public
comments are “appropriate.” The specific speech that the Council President suppressed as
“inappropriate” was Mr. Briner’s questioning about the litigation — the President (and the district
court) deemed the content of the questions “inappropriate.” The Council President’s determination
that Mr. Briner was “out of order,” and therefore engaged in “inappropriate” public comments,
appears to be based on nothing more than the content of Mr. Briner’s speech.
Based on the record, the Briners appear to have been engaged in legitimate questioning and
37
criticism of public officials, conduct protected by the First Amendment. There is no evidence on the
record that Mr. Briner was engaged in any threatening or harassing behavior, so Mr. Briner should
have been allowed to ask the Council (his government) virtually any question on any topic he likes,
though the Council would not have been required to answer. The Council would have been within
its rights to set certain limits on the public comment portion of the meeting and could have refused
to answer questions it does not want to answer; it cannot, however, prohibit protected political
speech on the vague and broad grounds that the content of that speech is “inappropriate.” The
Briners raise legitimate questions of material fact for the jury, and summary judgment was
inappropriate.
5. Equal Protection Claim
The district court held that the Briners cannot support their equal protection claim that “the
yard sign enforcement by the City was ‘selective.’” Mem. Op., April 16, 2008, at 30. The Briners
claimed that, by disallowing their portable sign but allowing every other portable sign all over town,
the City was enforcing a rule against them that it did not enforce against anyone else — and they
offered pictures of a dozen portable signs that the City was then allowing. The district court
explained:
All of the photographs [that the Briners submitted as evidence of non-
enforcement of the sign restriction, for purposes of showing selective prosecution]
show yard signs that amounted to advertising. There were no political signs which
might be used to compare content to see if the Briners’ content was being challenged
whereas similar content on other signs was not challenged.
Id. at 31. This statement by the district court indicates a misunderstanding regarding the Briners’
claims. The Briners allege that the City challenged their signs because of their content and viewpoint
(political, critical of the City), while it allowed other signs because of their different content
38
(advertising, viewpoint-neutral). The First Amendment does not allow for this distinction.
The Briners also argue that they are a “class of one,” in the mold of Village of Willowbrook
v. Olech, 528 U.S. 562 (2000). Evidence was submitted to the district court that Mr. Strickler
admitted this was the only time he had ever sought to have a political sign removed or to prosecute
someone for posting such a sign. This raises a genuine issue of material fact regarding whether
enforcement of the City’s sign ordinances was selective; summary judgment was therefore
inappropriate.
6. Municipal Liability Claim
“Municipal liability may attach for policies promulgated by the official vested with final
policymaking authority for the municipality.” Miller v. Calhoun County, 408 F.3d 803, 813 (6th Cir.
2005) (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 482-83 (1986)). In its original order, the
district court concluded: “There is no question that a police chief is at least one of the policy-making
authorities for a city police department. Therefore, if McClaran is found liable in his official
capacity, municipal liability will attach to City of Ontario.” Mem. Op., April 16, 2008, at 28. The
district court only disallowed the municipal liability claim after it had granted summary judgment
to Chief McClaran.
Because Chief McClaran is not entitled to summary judgment on the other claims (as
explained herein), the municipal liability claim survives. Summary judgment was inappropriate.
7. Defamation Claim
The district court dismissed this claim, sua sponte, because it found the accusation in the
complaint to be too vague. The court cited no authority to justify this dismissal. This is not a
question of subject matter jurisdiction or a statutorily imposed gatekeeping function (e.g., 28 U.S.C.
§ 1915A or 28 U.S.C. § 2254). This was a decision based on the plaintiffs’ pleading.
39
The Third Circuit and the Ninth Circuit (in at least one case) allow courts to dismiss claims,
sua sponte, when it is clear from the face of the pleading that the plaintiff cannot obtain relief. See,
e.g., Ray v. Kertes, 285 F.3d 287, 297 (3d Cir. 2002); Bryson v. Brand Insul., Inc., 621 F.2d 556, 559
(3d Cir.1980); Bintliff-Ritchie v. Am. Re. Co., 285 F. App’x 940, 943 (3d Cir. 2008); Speight v. Sims,
283 F. App’x 880, 881 (3d Cir. 2008); McManama v. Jones, 258 F. App’x 941 (9th Cir. 2007). The
majority of Circuits do not follow this approach. See, e.g., Lozano v. Ocwen Federal Bank, FSB,
489 F.3d 636, 642 (5th Cir. 2007); Dawson v. Newman, 419 F.3d 656 (7th Cir. 2005); Fredyma v.
AT&T Network Sys., Inc., 935 F.2d 368 (1st Cir. 1991); Thomas v. Scully, 943 F.2d 259 (2d
Cir.1991); Smith v. Boyd, 945 F.2d 1041 (8th Cir.1991). We have never allowed this in the Sixth
Circuit. See, e.g., Robbins v. Cyprus Cumberland Coal Co., 146 F.3d 425, 429 (6th Cir. 1998);
Andreano v. City of Westlake, 136 F. App’x 865 (6th Cir. 2005); Flood v. Phillips, 90 F. App’x 108,
114 (6th Cir. 2004); Hargate v. Gaines, 1999 WL 397956, *2 (6th Cir. 1999). At any rate, it is not
clear from the pleading that the Briners would be unable to obtain relief, so even in the Third Circuit
and Ninth Circuit dismissal of the Briners’ defamation claim would have been inappropriate. This
claim must be reinstated.
8. Civil Conspiracy Claim
The district court granted summary judgment on this claim based on its conclusion that only
Chief McClaran was even possibly liable and the proposition that “[a] person cannot conspire with
himself.” Mem. Op., April 16, 2008, at 27. After having concluded that the only constitutional right
that might have been violated was the Briners’ First Amendment right of free speech when Chief
McClaran removed F&W from the tow-list, the district court determined that no one but Chief
McClaran was involved, so there could be no conspiracy.
As described herein, we believe that district court misunderstood the Briners’ complaint and
40
the requirements of the summary judgment standard. We have reversed the grant of summary
judgment on four of the Briners retaliation claims, requiring the reinstatement of claims against other
defendants. The district court’s justification for granting summary judgment on the Briners’ civil
conspiracy claim, therefore, is no longer valid. The evidence in the record also indicates the
existence of genuine issues of material fact regarding the existence of a conspiracy. Sufficient
evidence exists to support a jury finding that Chief McClaran, Det. Snavely, and Officer Hill — and
possibly others — worked in concert over a 14-month period to further the malicious prosecution
of Ms. Briner. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 151-52 (1970).
We reverse the grant of summary judgment on this claim. We leave for the district court,
upon remand, to determine whether the intra-corporate conspiracy doctrine, first raised by defendants
on appeal, may be invoked as a defense, Hull v. Cuyahoga Valley Joint Voc. Sch. Dist. Bd. of Educ.,
926 F.2d 505, 510 (6th Cir. 1991) (“Since all of the defendants are members of the same collective
entity, there are not two separate ‘people’ to form a conspiracy.”), or whether, as the Briners claim,
the doctrine is inapplicable to § 1983 actions, Kinkus v. Village of Yorkville, 476 F.Supp.2d 829,
838-41 (S.D. Ohio 2007), reversed on other grounds, 289 F. App’x 86, 90 n.4 (6th Cir. 2008).
9. State Law Claims
The district court declined jurisdiction over the state law claims, citing 28 U.S.C. §
1367(c)(3), which says: “The district courts may decline to exercise supplemental jurisdiction over
a claim under subsection (a) if. . . the district court has dismissed all claims over which it has
original jurisdiction” (emphasis added). Based on the foregoing, in which we reinstated almost all
of the federal claims, we must reinstate the state law claims as well.
CONCLUSION
Based on the foregoing, we AFFIRM the district court’s grant of summary judgment on the
41
fifth retaliation claim, on the malicious prosecution claim as to Mr. Strickler only, and on the First
Amendment claim as to Det. Snavely and Officer Hill only. We also AFFIRM the district court’s
denial of summary judgment to the Briners. We REVERSE the district court’s grant of summary
judgment on all remaining claims and as to all remaining parties, and REMAND this case to the
district court for further proceedings consistent with this opinion.26
26
In their brief on appeal, the City defendants raise a qualified immunity claim. As they did not present this to
the district court, we will not consider it here. They may raise it on remand if they so choose.
42