Devin Kilpatrick v. Pat King ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-3134
___________
Devin Kilpatrick, *
*
Plaintiff-Appellant, *
*
Ronda Conn, *
* Appeal from the United States
Plaintiff, * District Court for the District of
* Nebraska.
v. *
*
Pat King; Kathy Carter; Ron *
Ross; Steven N. Wilson; Holly Brandt, *
*
Defendants-Appellees. *
___________
Submitted: June 11, 2007
Filed: August 22, 2007
___________
Before MELLOY, SMITH, and GRUENDER, Circuit Judges.
___________
MELLOY, Circuit Judge.
Plaintiff Devin Kilpatrick brought multiple claims pursuant to 42 U.S.C. § 1983against several employees of the Nebraska Department of Health and Human Services
(“HHS”), including a claim that defendants Holly Brandt, Kathy Carter, and Steven
Wilson took adverse action against him in retaliation for his exercise of constitutional
rights. During discovery, Wilson asserted attorney-client privilege and refused to
answer certain questions relating to his communications with an HHS attorney.
Kilpatrick moved to compel Wilson to answer those questions. The district court1
denied the motion and subsequently granted summary judgment to all defendants.
Kilpatrick appeals the denial of his motion to compel discovery and the grant of
summary judgment on his retaliation claim. We affirm.
I. BACKGROUND
A. Initial Proceedings
Devin Kilpatrick and Ronda Conn (“Ronda”) married in 1999. Thereafter,
Kilpatrick, Ronda, and J.B., Ronda’s son from a previous marriage, lived together in
Scottsbluff, Nebraska. Ronda’s mother, Shirley Conn (“Shirley”), also lived in
Scottsbluff, and she served as a frequent babysitter for J.B.
In the spring of 2002, Shirley took J.B. to an appointment with Dr. Bart
Mueller, one of J.B.’s physicians. Shirley told Mueller that J.B. had claimed that
Kilpatrick had punched him hard enough to cause a nosebleed. Mueller saw no signs
of facial injuries. As required by Nebraska law, Mueller called local law enforcement
officials to report the suspected child abuse of J.B., who was then ten years old. Local
authorities notified HHS case worker Jolie Becker, who investigated the report. J.B.
recanted the story after Ronda and Shirley confronted him, and Becker ultimately
concluded that the allegation was unfounded. The Scotts Bluff County Attorney’s
Office did not file charges against Kilpatrick or seek to remove J.B. from his care.
1
The Honorable Thomas D. Thalken, United States Magistrate Judge for the
District of Nebraska, presiding by consent of the parties pursuant to 28 U.S.C.
§ 636(c)(1).
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On August 13, 2002—less than six months later—HHS case worker Pat King
received a phone call at home from Jody Eckhardt, Ronda’s cousin. Eckhardt told
King that J.B. had bruises from being beaten by Kilpatrick. King immediately
contacted the local police, and Scottsbluff police officer Steven Lopez arrived at
Shirley’s home, where J.B. had gone following the alleged beating. Lopez noted that
J.B.’s eyes and lips were bruised and swollen, and J.B. had other bruises on his
forearm, shoulder, chest, and ankle. After riding to the police station with Shirley,
J.B. told Lopez that Kilpatrick had punched him several times.
Lopez drove to the home of Kilpatrick and Ronda and arrested Kilpatrick. At
the police station, Kilpatrick admitted to striking J.B. on prior occasions for
disciplinary purposes and to spanking J.B. earlier that day. Kilpatrick maintained that
he did not cause the bruises on J.B.’s face, however, and suggested that those injuries
may have been self-inflicted. When Lopez told Ronda that Kilpatrick believed J.B.
had caused the bruises himself, Ronda shook her head and stated, “No.” Ronda
immediately petitioned the District Court of Scotts Bluff County for a domestic abuse
protection order against Kilpatrick, but she voluntarily vacated the protection order
two days later.
King and Nan Carver, another HHS case worker, investigated the matter for
HHS. Carver accompanied Ronda and J.B. on a visit to one of J.B.’s physicians on
the day Ronda filed for the protection order, and Carver noted that Ronda disbelieved
J.B.’s story of abuse. On August 16, King interviewed J.B. and Shirley, and King
informed Ronda that HHS would file a petition to remove J.B. from her custody due
to her failure to protect him from Kilpatrick’s abuse. King also warned Ronda that “if
she supported [Kilpatrick], she would lose [J.B.].” The following day, Scottsbluff
police officer Ken Webber conducted a formal follow-up interview with Ronda. J.B.
suffered from attention-deficit/hyperactivity disorder, and Ronda told Webber that she
had seen J.B. hit himself before (though he had never caused himself physical injuries
as extensive as those displayed on August 13). Shortly thereafter, the Scotts Bluff
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County Attorney’s Office initiated proceedings to remove J.B. from the care of Ronda
and Kilpatrick. Ronda filed for divorce.
The county attorney indicted Kilpatrick on felony child abuse charges, and the
case went to trial in December 2002. Kilpatrick submitted medical evidence that J.B.
was prone to over-dramatizing events to receive attention from Ronda and that J.B.
had engaged in self-abuse in the past. A jury acquitted Kilpatrick of all charges. The
county attorney subsequently dismissed the parallel custody suit to remove J.B. from
the care of Ronda and Kilpatrick, and J.B. was returned to Ronda.
B. Investigation and Lawsuit
Vindicated in state proceedings, Ronda and Kilpatrick soon began raising
complaints regarding HHS’s handling of J.B.’s allegations. Counsel for the now-
divorced couple successfully sought the appointment of a special county prosecutor
to investigate King’s behavior in the case, particularly whether King engaged in
criminal witness tampering when she cautioned Ronda against supporting Kilpatrick.
Ronda and Kilpatrick made comments critical of King and HHS that were published
in a series of newspaper articles appearing in the Omaha World-Herald and the
Scottsbluff Star-Herald in the spring of 2003. Following publication of the articles,
HHS began its own internal investigation of King’s conduct and reassigned her to
different office duties. On July 15, 2003, the special prosecutor issued a press release
stating that he would not file criminal charges against King. The special prosecutor
noted that, while “Ms. King’s actions push[ed] the envelope and c[a]me close to
crossing the line” of legality, the context of King’s statement to Ronda indicated that
it was likely made to explain the consequences of testifying falsely regarding known
abuse, rather than to coerce Ronda into testifying falsely or to chill her from testifying
truthfully. The HHS internal investigation concluded the next day, finding that King’s
conduct in the J.B. case was proper and that her comment to Ronda was not
inappropriate. King immediately returned to normal duties.
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Kilpatrick then took legal action.2 On August 6, 2003, he filed a lawsuit against
King and HHS alleging that the defendants’ conduct in handling J.B.’s allegations
violated Kilpatrick’s Fourth, Sixth, and Fourteenth Amendment rights, 42 U.S.C.
§ 1983, and that the defendants conspired to violate his civil rights, 42 U.S.C. § 1985.
One month later, Kilpatrick amended his complaint to add two new defendants: HHS
director Ron Ross and Kathy Carter, one of King’s supervisors in the Gering,
Nebraska HHS office. The discovery process was slow, due in large part to HHS’s
evasive and non-responsive answers to some of Kilpatrick’s interrogatories. On April
28, 2004, Kilpatrick filed a motion to compel HHS to give complete responses to
those interrogatories, which the district court granted.
C. Placement on Central Register
In the spring of 2004, Carter instructed HHS protection and safety supervisor
Holly Brandt to “clean up” the open files on roughly 200 to 250 old cases, a grouping
that included the Kilpatrick case. This task involved reviewing the files to make one
of four possible “case status determinations”: (1) “unfounded,” meaning that the
evidence indicates that no abuse or neglect took place; (2) “inconclusive,” meaning
that a preponderance of the evidence shows that abuse or neglect occurred, but there
was no judicial substantiation of the allegations; (3) “court-substantiated,” meaning
that a court has found that the child at issue was the victim of abuse or neglect; and
(4) “unable to locate,” meaning that HHS cannot find the subjects of an allegation.
If HHS classifies a case as “inconclusive” or “court-substantiated,” it must place the
names of the alleged perpetrators on Nebraska’s Child Central Register of Abuse and
Neglect (“the Register”). Neb. Rev. Stat. § 28-718. Listings on the Register are not
available to the general public, although some child-care agencies have direct access
2
Ronda was a plaintiff in the lawsuit, as well. She is not a party to this appeal,
however, and therefore we discuss the case solely in light of Kilpatrick’s claims.
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to such listings. Other law-enforcement and child-care-related agencies may inquire
as to whether a particular individual is listed on the Register by requesting that
information from HHS. In addition, HHS will provide such information to any other
agency or organization that obtains written consent from the subject of the inquiry.
Brandt was familiar with the Kilpatrick file. She served as King’s immediate
supervisor in the Gering office, and she had participated in the internal investigation
that cleared King of wrongdoing in the matter. She was aware that Kilpatrick had
been acquitted of felony child abuse, though she had neither attended the trial nor
obtained transcripts of the proceedings. After a five- to ten-minute discussion, Brandt
and Carter agreed that the Kilpatrick case warranted an “inconclusive” finding. On
May 5, 2004, they notified Kilpatrick by mail of this case status determination and his
placement on the Register, as well as his right to request expungement from the
Register.
Kilpatrick immediately exercised that right. In a written expungement request,
Kilpatrick reminded the agency that he had been acquitted of the criminal charges
relating to J.B.’s allegations and stated that he considered his placement on the
Register to be a retaliatory act that he would include in his lawsuit. Shortly after
requesting expungement, Kilpatrick amended his complaint to include a claim that
HHS employees placed his name on the Register in retaliation for his complaints
about King, his critical comments about King and HHS to news reporters, and the act
of filing his lawsuit against several HHS employees.3
Steven Wilson, an HHS protection and safety program specialist, received the
expungement request. Wilson reviewed materials in the HHS case file on Kilpatrick,
including police reports, the HHS investigative report, King’s initial assessment of the
3
Shortly before Kilpatrick filed this amended complaint, the district court
dismissed HHS as a defendant on the basis of sovereign immunity.
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allegations, materials relating to the internal investigation of King’s conduct, and
photos showing J.B.’s injuries. Wilson did not review the transcript of Kilpatrick’s
criminal trial. Upon noting that Kilpatrick had filed a lawsuit against HHS employees,
Wilson discussed the matter with Robert Wheeler, a special assistant attorney general
for Nebraska and counsel for HHS. Wheeler, who had represented King in a
deposition relating to Kilpatrick’s criminal trial, discussed the decision with Wilson
and recommended denying expungement. Wilson acted upon Wheeler’s
recommendation and denied Kilpatrick’s expungement request in a letter dated July
8, 2004. The letter stated that “[n]o reason was found to expunge,” and it informed
Kilpatrick of his right to appeal the expungement denial within the agency.
Kilpatrick appealed the decision to an HHS hearing officer. As the hearing date
approached, Wilson sent an email to HHS deputy administrator Chris Hanus that
described the facts of the case and concluded: “In reviewing the file, this appears to
me to be one of the better cases for an entry of inconclusive. Of course, my
experience is that inconclusive [determinations] are difficult [to defend] at [a] hearing,
but his is one that deserves our efforts.” Kilpatrick filed a motion asking the HHS
hearing officer to summarily expunge his name from the Register. HHS resisted this
motion in a reply brief submitted by Wheeler. One section of the reply brief reads as
follows:
The Appellants allege in paragraph 3 of their Motion that the
Department has listed them on the register in retaliation for their actions
against the Department. That issue is pending before the Federal District
Court. The hearing officer has no authority to consider that issue except
as it may relate to the ultimate issue in this contested case of whether the
entries are maintained appropriately and consistent with the law. To that
extent, the Department responds.
As the Appellants’ attorney acknowledges in her motion, they
early took their complaints to the news media. There they began a public
attack on the worker and the Department, and they have maintained their
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attacks in the media and in several other forums. They attacked the work
and integrity of the protection and safety worker assigned to the case,
and they demanded that the Department undertake an internal
investigation of the worker. They demanded the Department’s
considered attention and investigation of the matter. They have received
it. And the result is this listing. The Department submits that the facts
demand and support the listing.
HHS eventually expunged Kilpatrick’s name from the Register, although it did not
reach this decision until April 2006.
D. Litigation Following Kilpatrick’s Addition of the Retaliation Claim
The defendants moved to dismiss each of Kilpatrick’s claims as presented in his
second amended complaint, and the district court ruled on this motion on March 30,
2005. It dismissed the bulk of Kilpatrick’s claims, but allowed two claims to survive:
(1) Kilpatrick’s claim of retaliation by HHS employees for the exercise of his
constitutional rights, and (2) his claim that they violated procedural due process with
regard to Kilpatrick’s family liberty rights. Kilpatrick then filed a third amended
complaint containing those remaining claims and adding Wilson and Brandt as
defendants.
Discovery battles continued, resulting in more motions to compel discovery and
multiple monetary sanctions against the defendants. The last of these motions came
in November 2005, shortly after the defendants had moved for summary judgment on
the basis of qualified immunity. Kilpatrick moved for and was granted an extension
of time to respond to the motion for summary judgment, and he thereafter deposed
Wilson regarding the decision to deny expungement. During the deposition, counsel
for Kilpatrick asked Wilson whether he and Wheeler discussed Kilpatrick’s acquittal
of criminal charges. Counsel for Wilson objected, arguing that Wilson’s
communications with Wheeler were protected by attorney-client privilege. Counsel
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for Kilpatrick then asked Wilson several questions relating to the expungement
decision, each time inviting Wilson to assert privilege. Wilson accepted these
invitations not to answer. Some of the questions prompting Wilson’s assertion of the
privilege appear below:
Q.: I would like to know what all of the evidence was that supported
your decision . . . that a preponderance of the evidence showed in
your opinion abuse. Are you going to give me that information,
or are you going to assert privilege?
A.: Assert privilege.
....
Q.: Are you going to tell me specifically how you believe that
[Kilpatrick] posed a future risk to vulnerable children, or are you
going to assert privilege?
A.: Assert privilege.
....
Q.: Even if you truly believe in your heart that [Kilpatrick] and Ronda
did 100 percent of what they were accused of having done, why
not exercise the discretion [to] expunge them knowing that
[Kilpatrick] and [J.B.] are unlikely to ever come into contact
again? Or are you going to claim privilege for that as well?
A.: I will claim the privilege for that as well.
....
Q.: Then we go to the next sentence [of Wilson’s email to Hanus]
. . . . [W]hy does “this case deserve our efforts”? Or are you going
to use the privilege on that one too?
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A.: Privilege.
In his motion to compel discovery, Kilpatrick argued only that Wilson should
have answered the questions because the attorney-client privilege does not extend to
attorney-client communications sought for the purpose of effectuating a crime or
fraud. The district court found the crime-fraud exception inapplicable and denied
Kilpatrick’s motion to compel Wilson’s testimony on these matters on February 13,
2006.4
The district court granted the defendants’ motion for summary judgment on
August 1, 2006. As to Kilpatrick’s procedural due process claim, the district court
determined that King lacked direct involvement in the temporary removal of J.B. from
the care of Ronda and Kilpatrick and that there was no evidence that a reasonable
official in her position would have known that her conduct could have violated the
alleged due-process right to family integrity. As to the retaliation claim, the district
court found that Carter, Brandt, and Wilson were the only defendants with personal
involvement in the decisions to place and keep Kilpatrick on the Register. According
to the district court, Kilpatrick had not presented sufficient evidence to allow a
reasonable jury to conclude that retaliatory motives informed the relevant decisions
of those defendants. Therefore, the district court granted summary judgment to the
defendants.
Kilpatrick now appeals the denial of his motion to compel Wilson’s testimony
and the grant of summary judgment against him on his retaliation claim. We address
these issues below.
4
We are not convinced that these questions actually implicate the attorney-client
privilege or that they could not have been rephrased to avoid any privilege problems.
That issue is not before us, however. Like the district court, we decide only the
questions presented by the parties—in this instance, whether the crime-fraud
exception applies to the facts at hand.
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II. DISCUSSION
A. Attorney-Client Privilege
We review the denial of a motion to compel discovery for gross abuse of
discretion. Rabushka ex rel. United States v. Crane Co., 122 F.3d 559, 565 (8th Cir.
1997). Kilpatrick’s only argument—both before the district court and on appeal—was
that Wilson lost the benefit of the attorney-client privilege because he sought
Wheeler’s advice to further a crime or fraud (presumably the alleged conspiracy to
retaliate against Kilpatrick as punishment for Kilpatrick’s exercise of his
constitutional rights). The crime-fraud exception to otherwise privileged attorney-
client communications applies to “communications made for the purpose of getting
advice for the commission of a fraud or crime.” United States v. Zolin, 491 U.S. 554,
563 (1989) (quotation omitted). If a deponent refuses to answer a question on the
basis of attorney-client privilege, and the party urging discovery seeks to compel an
answer on crime-fraud exception grounds, that party must make a threshold factual
showing that the exception applies; in other words, the party urging discovery must
present facts warranting a reasonable belief that the deponent obtained legal advice
to further a crime or fraud. In re BankAmerica Corp. Sec. Litig., 270 F.3d 639, 642
(8th Cir. 2001). If the party makes that threshold showing, the district court may
review the allegedly privileged materials or hear the allegedly privileged testimony
in camera provided such action is warranted by the circumstances of the case and the
information sought. Id. This review allows the district court to determine whether the
crime-fraud exception applies without breaching the confidentiality of attorney-client
communications.
Here, the district court did not conduct an in camera examination of Wilson
because it found that Kilpatrick had not met his burden of presenting a factual basis
to support his belief that Wilson obtained advice from Wheeler in furtherance of any
alleged retaliation against Kilpatrick. The district court did not grossly abuse its
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discretion in making this determination. Wilson’s stated reason for obtaining
Wheeler’s advice—that the subject of the expungement request was involved in
pending litigation against several HHS employees—is reasonable under the
circumstances and does not raise any inference of fraudulent intent. Furthermore,
Wilson had the sole discretion to deny the expungement request with or without
Wheeler’s advice, and Wilson was well-aware of the procedures for doing so. As
such, it is unclear what advice Wilson could have sought from Wheeler that would
have furthered any scheme to retaliate against Kilpatrick. See id. (“Because the
attorney-client privilege benefits the client, it is the client’s intent to further a crime
or fraud that must be shown.”). Kilpatrick has offered no answer to this fundamental
question, and we can discern none from the circumstances of the case. Therefore, the
district court properly found the crime-fraud exception inapplicable on these facts.
Because the crime-fraud exception is the only ground Kilpatrick raised for compelling
Wilson’s answers, we find that the district court did not grossly abuse its discretion
in denying Kilpatrick’s motion to compel Wilson’s testimony.
B. Retaliation Claim
We review a grant of summary judgment de novo, viewing the record in the
light most favorable to the non-movant. Parks v. City of Horseshoe Bend, 480 F.3d
837, 839 (8th Cir. 2007). Summary judgment is appropriate when there is “no
genuine issue as to any material fact.” Fed. R. Civ. P. 56(c). “An issue is genuine if
the evidence is such that it could cause a reasonable jury to return a verdict for either
party.” Parks, 480 F.3d at 840 (quotation omitted).
“Qualified immunity protects government officials from the costs of trial and
the burdens of broad discovery unless their discretionary acts violated clearly
established statutory or constitutional rights.” Wilson v. Northcutt, 441 F.3d 586, 590
(8th Cir. 2006). A citizen’s right to exercise the constitutional freedoms to speak and
to seek judicial relief without facing retaliation from government officials is clearly
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established. See id. at 592; Pendleton v. St. Louis County, 178 F.3d 1007, 1011 (8th
Cir. 1999). In this case, then, the only issue is whether a reasonable jury could find
that Brandt, Carter, and Wilson actually violated that right when they placed and
retained Kilpatrick on the Register. The resolution of this inquiry depends upon the
defendants’ motives for making the official decisions at issue. To avoid an adverse
grant of summary judgment, Kilpatrick must present “affirmative evidence from
which a jury could find” that his constitutionally protected conduct informed the
defendants’ decisions and caused them to place and retain his name on the Register.
Crawford-El v. Britton, 523 U.S. 574, 600 (1998); see Osborne v. Grussing, 477 F.3d
1002, 1005 (8th Cir. 2007) (“To prevail in an action for First Amendment retaliation,
[the] ‘plaintiff must show a causal connection between a defendant’s retaliatory
animus and [the plaintiff’s] subsequent injury.”) (quoting Hartman v. Moore, 126 S.
Ct. 1695, 1703 (2006)). Retaliation need not have been the sole motive, but it must
have been a “substantial factor” in those decisions. Wishnatsky v. Rovner, 433 F.3d
608, 613 (8th Cir. 2006). Furthermore, the plaintiff must show that the retaliatory
motive was a but-for cause of the harm; that is, that the plaintiff was “singled out” for
adverse treatment because of his exercise of constitutional rights. Osborne, 477 F.3d
at 1006 (quotation omitted).
Kilpatrick argues that a number of facts and circumstances, taken together,
could allow a reasonable jury to find that the defendants intended to retaliate against
him for his criticism of HHS and several of its employees. First, he contends that his
placement on the Register was the product of decisions that were both wrong and
wrongly reached. According to Kilpatrick, a preponderance of the evidence did not
support the conclusion that he abused J.B., and the defendants who purported to
believe otherwise drew their conclusions quickly and carelessly, showing willful
blindness toward evidence that cast doubt upon the truth of J.B.’s allegations. They
did not give significant weight to the jury’s finding of not guilty on a “reasonable
doubt” standard of proof, examine the trial transcripts, or engage in any investigation
beyond the materials they already had in their file on the case. Kilpatrick argues that
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such circumstances raise the inference that the relevant defendants were predisposed
to place him on the Register, and their knowledge of his lawsuit and public criticism
of HHS could have caused such prejudicial sentiment. In short, Kilpatrick asserts that
the decisions were indefensible on any legitimate grounds, and therefore the relevant
defendants must have been inspired by illegitimate purposes.
Adverse action that cannot be defended by any non-retaliatory explanation
provides a basis for a reasonable jury to find that the defendants acted with improper
motives. See Wilson, 441 F.3d at 591 (“The failures to respond to Wilson’s facially
legitimate complaints, to correct a harmful condition seemingly caused by Street
Department incompetence, and to explain these failures to act create a reasonable
inference of unconstitutional motive.”). This is not such a case, however. The
defendants were familiar with Kilpatrick’s HHS file at the time they made their
decisions. This file included documents detailing J.B.’s allegations against Kilpatrick
on two occasions, photos of the injuries, police reports, and Kilpatrick’s own
admission that he struck J.B. on prior occasions. This evidence was strong enough to
prompt the county attorney to file felony child-abuse charges against Kilpatrick. It
was not strong enough for a jury to find Kilpatrick guilty of those charges beyond a
reasonable doubt, but the reasonable-doubt standard is a far greater burden of proof
than the preponderance-of-the-evidence standard employed by HHS in making a case
status determination of “inconclusive.” While the defendants may have ignored
exculpatory trial evidence that supported Kilpatrick’s theory that J.B. fabricated the
story of abuse, there is nothing in the record to suggest that the defendants had a duty
to obtain and scour the transcripts of his criminal trial to add or detract from the
evidence already in their possession. From the record before us, it is difficult to
conclude that the defendants’ decisions were actually wrong, let alone so grossly and
unjustifiably wrong as to give rise to a reasonable inference of retaliatory intent.
As noted by the district court, the timing of the decisions also weighs against
an inference of retaliatory intent. At the time Kilpatrick was placed on the Register,
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nine months had passed since he had filed his initial lawsuit against HHS and King.
Roughly one year had passed since Kilpatrick had spoken to news reporters and urged
investigation of King’s conduct. Kilpatrick’s criminal proceedings had concluded
almost a year-and-a-half earlier. If the defendants wished to take retaliatory action in
an attempt to deter Kilpatrick from exercising his constitutional rights, they could
have made a case status determination and placed Kilpatrick on the Register at any
time in that period. Under Kilpatrick’s theory, the defendants instead suffered
Kilpatrick’s public criticism, his call for an investigation of their colleague, and his
lawsuit, waited eight uneventful months, then finally exercised the opportunity to
retaliate that had been fully available to them for a year-and-a-half. This theory is
unreasonable, particularly in light of the fact that Kilpatrick presented no evidence that
his case was singled out for special treatment by HHS. It was uncontested that Carter
ordered Brandt to make case status determinations for the 200 to 250 files that were
still open in the spring of 2004, which included Kilpatrick’s file. These circumstances
further reduce the reasonableness of any inference that retaliatory intent played a
substantial role in Kilpatrick’s case status determination.5
Kilpatrick points to two more pieces of evidence that arguably reveal a
retaliatory intent. First, he contends that Wilson’s email to Hanus, in which Wilson
states that “inconclusive [determinations] are difficult [to defend] at [a] hearing, but
[Kilpatrick’s] is one that deserves our efforts,” proves that Wilson was particularly
motivated to keep Kilpatrick on the Register. This may be true, but it is unclear from
the context whether that motivation arises from a desire to retaliate or a desire to retain
on the Register someone who Wilson believed had remorselessly committed child
5
On appeal, Kilpatrick argues that such action may have been taken in
retaliation for his motion to compel complete answers to certain interrogatories. This
argument lacks merit. Even if the defendants would have formed the intent to retaliate
based upon a fairly routine motion that amounted to a request for more
documentation, there is no evidence that Brandt or Carter had any knowledge that
Kilpatrick had filed the motion at the time they made their case status determination.
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abuse. Second, Kilpatrick argues that Wheeler’s brief to the HHS hearing officer, in
which Wheeler listed Kilpatrick’s acts showing criticism for HHS employees before
stating that “this listing” was the result of the attention Kilpatrick apparently sought,
amounts to an admission that the defendants placed Kilpatrick on the Register to
retaliate against him. Viewing the above passages in the light most favorable to
Kilpatrick, as we must, they could give rise to an inference of improper motive.
Looking at the evidence as a whole, however, including the timing of the decisions at
issue and their legitimate factual basis, those inferences are not sufficient to create a
genuine issue of fact for trial.
The bulk of Kilpatrick’s case, then, rests upon attacks on the credibility of those
officials who asserted legitimate motives for their decisions to place and retain his
name on the Register. We are not unsympathetic to the plight of plaintiffs who bring
retaliation claims that require proof of a wrongful motive, the evidence of which may
be elusive or nonexistent. Nevertheless, at the summary judgment stage, “if the
defendant-official has made a properly supported motion, the plaintiff may not
respond simply with general attacks upon the defendant’s credibility, but rather must
identify affirmative evidence from which a jury could find that the plaintiff has carried
his or her burden of proving the pertinent motive.” Crawford-El, 523 U.S. at 600.
Kilpatrick has not met this burden.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court.
______________________________
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