Top Flight Entertainment, Ltd. v. Schuette

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0264p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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X
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TOP FLIGHT ENTERTAINMENT, LTD., a
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Michigan Corporation, dba Flight Club;
FLYING ACES LLC, a Limited Liability -
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No. 12-2384
Company,
Plaintiffs-Appellants, ,>
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v.
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BILL SCHUETTE, individually and in his
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official capacity as Attorney General of the
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State of Michigan; M. SCOTT BOWEN,
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individually and in his official capacity as
Commissioner of the Michigan Bureau of the -
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State Lottery, a state agency; JOHN C.
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LESSNAU, Manager, Regulatory
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Investigations Support Section of the
Michigan Gaming Control Board; PAMELA -
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BENZING, Detective Lieutenant, Gaming
Defendants-Appellees. -
Section, Michigan State Police,
N
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:11-cv-15148—Denise Page Hood, District Judge.
Argued: June 21, 2013
Decided and Filed: September 6, 2013
Before: KEITH, WHITE, and STRANCH, Circuit Judges.
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COUNSEL
ARGUED: Robert A. Sedler, WAYNE STATE UNIVERSITY LAW SCHOOL,
Detroit, Michigan, for Appellants. Brian O. Neill, OFFICE OF THE MICHIGAN
ATTORNEY GENERAL, Lansing, Michigan, for Appellees. ON BRIEF: Robert A.
Sedler, WAYNE STATE UNIVERSITY LAW SCHOOL, Detroit, Michigan, for
Appellants. Brian O. Neill, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellees.
1
No. 12-2384 Top Flight Entm’t, et al. v. Schuette, et al. Page 2
WHITE, J., delivered the opinion of the court, in which, STRANCH, J., joined,
and KEITH, J., joined in part. KEITH, J. (pp. 16–17), delivered a separate opinion
concurring in part and dissenting in part.
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OPINION
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HELENE N. WHITE, Circuit Judge. Plaintiffs-Appellants Top Flight
Entertainment and Flying Aces, LLC (collectively, “Plaintiffs”) appeal the dismissal of
their complaint against Defendants-Appellees Bill Schuette (“Schuette”), the Michigan
Attorney General, and M. Scott Bowen (“Bowen”), the Commissioner of the Michigan
Bureau of the State Lottery, in their official and individual capacities (collectively,
“Defendants”), alleging violations of their First and Fourteenth Amendment rights, under
42 U.S.C. § 1983. Plaintiffs’ claims stem from the administrative denials of various non-
profit organizations’ applications to hold “millionaire parties” at Plaintiffs’ adult-
entertainment club. Plaintiffs allege that Defendants adopted a blanket policy of denying
all such applications in retaliation for Plaintiffs’ exercising their First Amendment rights.
The district court dismissed Plaintiffs’ procedural and substantive due process and First
Amendment retaliation claims for failure to state claims for which relief could be
granted; and it dismissed the remainder of Plaintiffs’ claims—which alleged retaliation
for Plaintiffs’ exercise of their First Amendment right to redress grievances in the
courts—based on a finding that Bowen was entitled to quasi-judicial immunity and
Schuette lacked the requisite personal involvement in the alleged constitutional
violations. We AFFIRM in part, REVERSE in part, and REMAND for further
proceedings.
I.
A. Millionaire Parties
A “millionaire party” is “an event at which wagers are placed upon games of
chance customarily associated with a gambling casino through the use of imitation
money or chips that have a nominal value equal to or greater than the value of the
No. 12-2384 Top Flight Entm’t, et al. v. Schuette, et al. Page 3
currency for which they can be exchanged.” Mich. Comp. Laws § 432.103a(8).
Millionaire-party licenses are limited in scope and duration, and may be issued to a
“qualified organization” for up to four consecutive days. Id. § 432.110b. A “qualified
organization” is a “bona fide religious, educational, service, senior citizens, fraternal, or
veterans’ organization that operates without profit to its members and that either has
been in existence continuously as an organization for a period of 5 years or is exempt
from taxation under section 501(c) of the internal revenue code[.]” Id. § 432.103(g)(i).
Each qualified organization may receive four millionaire party licenses a year, and each
license is only valid for one location. Id. § 432.110b. The licensee of the millionaire
party is responsible for “insuring” compliance with the law. Id. § 432.110a.
An application for a millionaire party must include, among other things,
information identifying the applicant organization, the location at which the applicant
proposes to conduct the event, the proposed dates for the event, and a sworn statement
attesting to the nonprofit status of the applicant organization. Id. § 432.104. A license
may be denied if either the applicant or the lessor of the millionaire party’s proposed
location “is not in compliance with the requirements of the act, these rules, terms of
probation, directives of the bureau, public policy of the state of Michigan, or any other
local, state, or federal law or regulation.” Mich. Admin. Code r. § 432.21109. A denial
of an application may be appealed by the applicant in state court. Id.; Mich. Comp.
Laws § 600.631.
The proceeds from a millionaire party (less “reasonable” expenses incurred to
operate the event) must be “devoted exclusively” to the charitable purposes of the
licensee. Mich. Comp. Laws § 432.109(1). Leasing a location to hold the event is an
approved use of the proceeds, id., but “all of the terms and conditions of rental, including
the fee [must be placed] in a written agreement approved by the bureau.” Mich. Admin.
Code r. § 432.21416. The location at which a licensed event is conducted must be open
to inspection at all times. Mich. Comp. Laws § 432.114(3).
No. 12-2384 Top Flight Entm’t, et al. v. Schuette, et al. Page 4
On June 11, 2012, the governor of Michigan transferred authority to administer
millionaire-party licensing and regulation from the Lottery Commissioner to the
Executive Director of the Michigan Gaming Control Board. Id. § 432.91.
B. Facts
Top Flight Entertainment (“Top Flight”), doing business as “Flight Club,”
operates a topless-entertainment club in Inkster, Michigan. In 2010, Flight Club
subleased a portion of its property to Flying Aces, LLC (“Flying Aces”) in anticipation
that Flying Aces would contract with qualified organizations to hold millionaire parties
at Flight Club.
On October 26, 2010, Flying Aces representatives held a meeting with Ronald
K. Wells, the inspector supervisor of the Michigan Bureau of the State Lottery’s (“the
Bureau”) Charitable Gaming Division (“CGD”), and Mark Bentley, a supervisor for the
CGD, to discuss the rules and procedures for locations where millionaire parties are
conducted. Each of Flying Aces’s representatives initialed and signed a memorandum
listing the topics that were discussed at the meeting. The memorandum warned that:
“Violations of the Act, rules, or directives will result in no further licenses being issued
for organizations wishing to conduct events at that location and/or using the listed
supplier.”
In March, 2011, Flying Aces representatives met with Lottery Commissioner
Bowen and the mayor of Inkster to inform Bowen that Flying Aces’s location also
offered adult entertainment. Flying Aces felt this meeting was necessary because they
were not aware of any other adult-entertainment location that had been approved by the
Bureau as a location where a millionaire party could be held. Bowen did not indicate
that Plaintiffs’ status as an adult-entertainment business would be a problem.
On April 1, 2011, Plaintiffs entered into contracts for billboard advertising
throughout the Detroit area related to the millionaire parties they anticipated would be
held at their location. Shortly after these advertisements were posted, Wells contacted
Flying Aces and instructed it to cancel its advertising campaign on the basis of
No. 12-2384 Top Flight Entm’t, et al. v. Schuette, et al. Page 5
complaints he had received. Public Act 343 of 2010, a Michigan state law which
regulated signs and billboards advertising sexually oriented businesses, became effective
on March 30, 2011. Shortly thereafter, on April 5, 2011, ABCDE Operating, LLC
(ABCDE), an adult entertainment business managed by Alan M. Markovitz, who was
a “substantial” shareholder in Flying Aces, filed suit against Michigan Governor Rick
Snyder, alleging that Public Act 343 violated his rights under the First and Fourteenth
Amendments. On May 18, 2011, Flying Aces filed a separate suit against Snyder, also
alleging that Public Act 343 violated its constitutional rights, and Flight Club filed a
separate suit on July 20 making similar claims. In late August 2011, Snyder and Bill
Schuette, Michigan’s Attorney General, entered into a settlement agreement resolving
the three cases by entry of declaratory judgments and permanent injunctions in favor of
ABCDE, Flying Aces, and Flight Club.
During April 2011, Flying Aces began conducting millionaire parties on Flight
Club’s premises. Sometime after May 18, 2011, Michigan State Police began
investigating Flying Aces and Flight Club. Plaintiffs allege that beginning in June 2011,
qualified organizations wishing to hold events at Flying Aces began experiencing
“substantial and unusual delays” in the issuance of their licenses. State police executed
a search warrant at the location on July 12, 2011, and questioned the management, staff,
and entertainers at Flight Club and Flying Aces about suspicions of prostitution and drug
use.
Shortly after the search of their premises, Plaintiffs learned that the Bureau
intended to deny all millionaire-party licenses for events to be held on their premises for
the “foreseeable future.” On August 15, 2011, representatives of Flying Aces met with
representatives from the Bureau, as well as an assistant attorney general assigned to
work with the Gaming Control Board. According to Flying Aces, the assistant attorney
general advised it that the Bureau was bringing administrative charges against several
of the organizations that had conducted millionaire parties at Flying Aces, and that until
the investigation was complete, no further license applications for events at Flying Aces
would be approved.
No. 12-2384 Top Flight Entm’t, et al. v. Schuette, et al. Page 6
C. Procedural History
Plaintiffs filed an amended complaint on January 18, 2012, against Schuette and
Bowen in their official and individual capacities, alleging that the blanket denial of all
millionaire-party licenses to groups proposing to hold millionaire parties at their club
was done in disapproval of, and in retaliation for, Plaintiffs’ exercise of their rights to
offer and advertise adult entertainment, thereby violating Plaintiffs’ rights to freedom
of expression, their rights to redress grievances, and their procedural and substantive
rights under the Fourteenth Amendment. Defendants moved to dismiss Plaintiffs’
complaint in its entirety, arguing that Plaintiffs lacked standing to bring their claims,
failed to state a claim for which relief could be granted, and failed to name a defendant
against whom relief may be granted. The district court dismissed Plaintiffs’ complaint,
and this appeal followed.
II.
A. Standing
Defendants argue that Plaintiffs lack constitutional standing. In order to satisfy
constitutional standing requirements, a plaintiff must show:
(1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized
and (b) actual or imminent, not conjectural or hypothetical; (2) the injury
is fairly traceable to the challenged action of the defendant; and (3) it is
likely, as opposed to merely speculative, that the injury will be redressed
by a favorable decision.
Friends of the Earth, Inc., v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81
(2000).
Plaintiffs have constitutional standing to bring this suit. They allege an injury
(the loss of future millionaire-party leasing contracts) that is the result of Defendants’
alleged policy of issuing blanket denials to all organizations wishing to conduct a
millionaire party at Plaintiffs’ business. A favorable decision would be likely to redress
No. 12-2384 Top Flight Entm’t, et al. v. Schuette, et al. Page 7
their injury by preventing Defendants from implementing a policy of blanket license
denials to organizations wishing to hold an event at Plaintiffs’ business.1
B. Standard of Review
We review de novo the district court’s order granting dismissal under Rule
12(b)(6). Courie v. Alcoa Wheel & Forged Prods., 577 F.3d 625, 629 (6th Cir. 2009).
A complaint must present “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). “[W]here the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the complaint has
alleged—but it has not shown—that the pleader is entitled to relief.” Id. at 679 (internal
quotation marks and brackets omitted). We accept all material allegations as true and
construe them in the light most favorable to the non-moving party, but do not accept
“conclusory legal allegations that do not include specific facts necessary to establish the
cause of action.” New Albany Tractor, Inc. v. Louisville Tractor, Inc., 650 F.3d 1046,
1050 (6th Cir. 2011).
C. Defendants’ Motion to Dismiss
1. Count I - Freedom of Expression
Plaintiffs argue that the district court improperly dismissed count one of their
amended complaint, which alleged that Defendants violated Plaintiffs’ right to free
1
Defendants’ argument that the Lottery Commissioner is not a proper party to this lawsuit because
he no longer has authority over millionaire-party licensing and regulation is without merit. Although the
Michigan Governor transferred these responsibilities to the Executive Director of the Michigan Gaming
Control Board, see Mich. Comp. Laws § 432.91, the Executive Director is substituted automatically for
the Lottery Commissioner by operation of Federal Rule of Civil Procedure 25(d) which provides: “An
action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise
ceases to hold office while the action is pending. The officer’s successor is automatically substituted as
a party.” See also, Air Line Pilots Ass’n, Int’l v. Civil Aeronautics Bd., 750 F.2d 81, 87 (D.C. Cir. 1984)
(applying Rule 25(d) to a transfer of authority between two departments); Porter v. Am. Distilling Co., 71
F. Supp. 483, 489 (S.D.N.Y. 1947) (same).
No. 12-2384 Top Flight Entm’t, et al. v. Schuette, et al. Page 8
expression by retaliating against them for offering adult entertainment, for failure to state
a claim upon which relief can be granted.
A properly pled prima facie case of First Amendment retaliation must allege:
(1) the plaintiff engaged in constitutionally protected conduct; (2) an
adverse action was taken against the plaintiff that would deter a person
of ordinary firmness from continuing to engage in that conduct; and (3)
the adverse action was motivated at least in part by the plaintiff’s
protected conduct.
Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 583 (6th Cir. 2012) (citation omitted).
Nude dancing, such as the entertainment provided by Plaintiffs, is considered protected
expressive conduct. City of Erie v. Pap’s A.M., 529 U.S. 277, 289 (2000).
Defendants argue that it is implausible for Plaintiffs to suggest that qualified
organizations were denied millionaire-party licenses because of Plaintiffs’ exercise of
their right to offer adult entertainment given that licenses were granted to organizations
after Plaintiffs informed Defendants that Flight Club offered topless dancing. However,
Defendants ignore Plaintiffs’ allegation that: “After Flying Aces was approved as a
lessor and . . . was placed on the Bureau’s list of approved locations and charitable
gaming events were conducted at that location, the Bureau received many complaints
that charitable gaming events should not be conducted at ‘a topless bar[,]’” leading to
Defendants’ policy denying all millionaire-party licenses to organizations seeking to
hold a millionaire party at Flying Aces. Although it is true that Plaintiffs were able to
hold numerous millionaire parties at Flying Aces before Defendants’ alleged actions,
Plaintiffs have alleged a plausible reason—complaints about millionaire parties being
held at their topless bar—that suggests Defendants may have denied the licenses on the
basis of protected conduct. We therefore reverse the district court’s determination that
Plaintiffs failed to state a claim in count I of their amended complaint.
2. Counts II and III - Redress of Grievances
In counts II and III of their amended complaint, Plaintiffs allege that Defendants
violated their constitutional right to redress their grievances under the First and
No. 12-2384 Top Flight Entm’t, et al. v. Schuette, et al. Page 9
Fourteenth Amendments by barring all future licenses in retaliation for the lawsuits
Plaintiffs brought against Public Act 343. Defendants moved to dismiss these counts for
failure to state a claim. The district court denied Defendants’ motion; though, as
discussed below, it nonetheless dismissed these counts with prejudice based on quasi-
judicial immunity and failure to allege personal involvement of the defendant officials.
On appeal, Defendants renew their argument that counts II and III do not state a claim
for which relief may be granted.
These First Amendment retaliation claims also require that Plaintiffs allege:
(1) the plaintiff engaged in constitutionally protected conduct; (2) an
adverse action was taken against the plaintiff that would deter a person
of ordinary firmness from continuing to engage in that conduct; and
(3) the adverse action was motivated at least in part by the plaintiff’s
protected conduct.
Wurzelbacher, 675 F.3d at 583 (citation omitted).
On appeal, Defendants argue that the adverse action the Plaintiffs complain of,
the denial of millionaire-party licenses for organizations wishing to hold events at Flying
Aces, was motivated by illegal activity and a criminal investigation targeting Plaintiffs’
business, not by Plaintiffs’ unrelated litigation against the state. Defendants also argue
that the denial of a millionaire-party license to a third-party would not deter a person of
ordinary firmness from redressing grievances in the courts, and that although temporal
proximity between the adverse action and protected conduct can support an inference of
retaliatory motive, it is not always sufficient. See Holzemer v. City of Memphis, 621
F.3d 512, 526 (6th Cir. 2010).
At the motion-to-dismiss stage, we must accept all material allegations as true
and construe them in the light most favorable to the non-moving party. See New Albany
Tractor, 650 F.3d at1050. Here, Plaintiffs allege sufficient facts to state a claim of First
Amendment retaliation. Although Defendants dispute the reason for the license denials,
we must accept Plaintiffs’ well-pleaded claims. See Mediacom Se. LLC v. Bellsouth
Telecomms., Inc., 672 F.3d 396, 399 (6th Cir. 2012). Further, it is not implausible that
No. 12-2384 Top Flight Entm’t, et al. v. Schuette, et al. Page 10
the denial of necessary licenses to organizations seeking to hold millionaire parties at
Flying Aces might cause economic injury sufficient to deter Plaintiffs from filing future
litigation. See Siggers-El v. Barlow, 412 F.3d 693, 701 (6th Cir. 2005) (“[S]ince there
is no justification for harassing people for exercising their constitutional rights, [the
deterrent effect] need not be great in order to be actionable.”) (citation and quotation
marks omitted). And although temporal proximity may not be enough to ultimately
sustain Plaintiffs’ allegations, it is sufficient at this stage to render Plaintiffs’ claims
plausible. As we recently noted in reversing the grant of a motion to dismiss in a § 1983
action, “[t]emporal proximity between the protected conduct and the adverse action by
the state actor alone may be significant enough to constitute indirect evidence . . . to
create an inference of retaliatory motive.” Paige v. Coyner, 614 F.3d 272, 283 (6th Cir.
2010) (citation and internal quotation marks omitted). Thus, the district court did not err
by denying Defendants’ motion to dismiss counts II and III of Plaintiffs’ amended
complaint.
3. Count IV - Procedural Due Process
In count IV of the amended complaint, Plaintiffs claim that they were deprived
of their constitutionally protected status as an “approved lessor” for millionaire parties
without due process of law.
“The Fourteenth Amendment’s procedural protection of property is a safeguard
of the security of interests that a person has already acquired in specific benefits.” Bd.
of Regents of State Colleges v. Roth, 408 U.S. 564, 576 (1972). Property interests are
not created by the Constitution, instead they are created and defined by independent
sources such as state law. Id. at 577. “To have a property interest in a benefit, a person
clearly must have more than an abstract need or desire for it. He must have more than
a unilateral expectation of it. He must instead have a legitimate claim of entitlement to
it.” Id. “[A] benefit is not a protected entitlement if government officials may grant or
deny it in their discretion.” Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 756
(2005).
No. 12-2384 Top Flight Entm’t, et al. v. Schuette, et al. Page 11
The district court dismissed count IV, reasoning that Plaintiffs did not point to
any source of state law or regulations from which they derived their expectation of
entitlement, nor did they show a constitutionally cognizable property interest in their
alleged status as an “approved lessor.” Indeed, Plaintiffs concede as much in their
complaint, alleging that: “There is neither a formal nor informal procedure for
qualifying as an approved location at which charitable gaming events may be
conducted. . . . Whether or not a location qualifies as an approved location at which
gaming events may be conducted is left to the unfettered discretion of employees of the
Bureau.” Michigan law grants the Lottery Commissioner (now the Executive Director
of Michigan Gaming Control Board) the discretion to refuse a millionaire-party license
to an otherwise qualified organization if the proposed location is “not in compliance with
the requirements of the act, these rules, terms of probation, directives of the bureau,
public policy of the state of Michigan, or any other local, state, or federal law or
regulation[.]” Mich. Admin. Code r. 432.21109(3). Millionaire-party licenses are issued
to qualified organizations (not locations) and the licenses are granted in the Lottery
Commissioner’s discretion. See Mich. Comp. Laws §§ 432.104; 432.104a. Plaintiffs’
argument that they “accrued approved location/lessor status” as a protected entitlement
is thus contradicted by both Michigan law and Plaintiffs’ own complaint, as
discretionary benefits are not constitutionally protected entitlements. We affirm the
dismissal of count IV of the amended complaint for failing to state a claim for which
relief can be granted.
D. Quasi-Judicial Immunity
Plaintiffs argue that the district court erred in determining that Bowen, as Lottery
Commissioner, was entitled to quasi-judicial immunity. However, as the district court
noted, Plaintiffs did not respond to Defendants’ assertion of quasi-judicial immunity in
their response brief, and appeared to concede the issue. On appeal, Plaintiffs argue that
the district court erred in granting quasi-judicial immunity to Bowen, but do not address
the district court’s finding of waiver until their reply brief, in which they state: “The
Defendants claim that we have conceded quasi-judicial immunity. The fact is, no
No. 12-2384 Top Flight Entm’t, et al. v. Schuette, et al. Page 12
evidence supports the boiler-plate claim in the Motion to Dismiss[,]” before discussing
the merits of whether Bowen is entitled to quasi-judicial immunity. (Appellant’s Reply
Br. at 15.) “Generally, an argument not raised before the district court is waived on
appeal[.]” City of Columbus, Ohio v. Hotels.com, L.P., 693 F.3d 642, 652 (6th Cir.
2012) (internal quotation marks omitted); see also United States v. Sandridge, 385 F.3d
1032, 1035 (6th Cir. 2004) (“Issues adverted to in a perfunctory manner, unaccompanied
by some effort at developed argumentation, are deemed waived.”) (internal quotation
marks omitted).
Plaintiffs had an opportunity to argue that Bowen is not entitled to quasi-judicial
immunity before the district court and chose not to do so. Nor do Plaintiffs argue on
appeal that their case merits an exception to this court’s application of the waiver
doctrine. See Poss v. Morris (In re Morris), 260 F.3d 654, 664 (6th Cir. 2001).
Accordingly, we affirm the district court’s grant of quasi-judicial immunity to Bowen.
However, “[a defendant] cannot claim any personal immunities, such as quasi-
judicial or qualified immunity” for the purposes of the suit against him in his official
capacity—the only immunity he may assert for the purposes of the official-capacity suit
are forms of sovereign immunity, such as the eleventh amendment. Alkire v. Irving, 330
F.3d 802, 810–11 (6th Cir. 2003). Thus, Plaintiffs’ claims against Bowen in his official
capacity for injunctive and declaratory relief are not barred by quasi-judicial immunity,
and the district court erred in dismissing Bowen in his official capacity.
E. Personal Involvement
Plaintiffs argue that the district court erred in dismissing Schuette as an improper
party to this action based on his lack of personal involvement in Plaintiffs’ claims.
Defendants further argue that Bowen should have been dismissed as an improper party
as well.
No. 12-2384 Top Flight Entm’t, et al. v. Schuette, et al. Page 13
1. Official Capacity
Plaintiffs bring claims against Schuette and Bowen in their official capacities as
Attorney General and Lottery Commissioner, respectively. We have jurisdiction over
suits to enjoin state officials from interfering with federal rights, S & M Brands, Inc. v.
Cooper, 527 F.3d 500, 507 (6th Cir. 2008), but:
In making an officer of the state a party defendant in a suit to enjoin the
enforcement of an act alleged to be unconstitutional, it is plain that such
officer must have some connection with the enforcement of the act, or
else it is merely making him a party as a representative of the state, and
thereby attempting to make the state a party.
Ex parte Young, 209 U.S. 123, 157 (1908). Thus, the state official sued “must have, by
virtue of the office, some connection with the alleged unconstitutional act or conduct of
which the plaintiff complains.” Floyd v. Cnty. of Kent, 454 F. App’x 493, 499 (6th Cir.
2012). A plaintiff must allege facts showing how a state official is connected to, or has
responsibility for, the alleged constitutional violations. Id. The district court did not
discuss whether Plaintiffs properly alleged a connection between Schuette and Bowen
and the alleged unconstitutional actions for the purposes of official immunity.
It is unquestioned that Bowen was granted the statutory power to issue
millionaire-party licenses. Mich. Comp. Laws § 432.104a(1) (“[T]he commissioner may
issue 1 or more of the following licenses . . . .”); Mich. Admin. Code r. 432.21109(3)
(“[T]he commissioner may refuse to issue a license to a qualified organization . . . .”).
Further, Plaintiffs allege that Bowen adopted a “blanket policy” of refusing all
millionaire-party applications for events to be held at Flying Aces. Thus, Plaintiffs
allege that Bowen has “some connection” to the unconstitutional acts alleged by
Plaintiffs, making him a proper party to the lawsuit in his official capacity.
However, Plaintiffs have not alleged how Schuette, as Attorney General, was
involved in the issuance of millionaire-party licenses or the enforcement of rules under
the Bingo Act. Plaintiffs have not alleged that Schuette had knowledge of, or
participated in, Bowen’s alleged policy of denying all millionaire-party licenses for
No. 12-2384 Top Flight Entm’t, et al. v. Schuette, et al. Page 14
events at Flying Aces. Thus, Plaintiffs have not alleged a sufficient connection between
Schuette and the alleged unconstitutional acts to sustain their claims against him in his
official capacity.
2. Individual Capacity
Plaintiffs also bring claims against Schuette and Bowen in their individual
capacities. “Government officials may not be held liable for the unconstitutional
conduct of their subordinates under a theory of respondeat superior.” Iqbal, 556 U.S.
at 676. “[A] § 1983 plaintiff must show that a supervisory official at least implicitly
authorized, approved or knowingly acquiesced in the unconstitutional conduct of the
offending subordinate.” Grinter v. Knight, 532 F.3d 567, 575 (6th Cir. 2008) (quotation
marks omitted).
Plaintiffs have not alleged Schuette’s personal involvement in the millionaire-
party license process. At most, Plaintiffs alleged that a meeting was held where an
assistant attorney general advised Plaintiffs that no further licenses would be granted for
events at their property until the Bureau’s investigation was complete. Plaintiffs do not
allege that Schuette “implicitly authorized, approved or knowingly acquiesced” to his
subordinate’s conduct, or that Schuette was otherwise personally involved in the events
leading to Plaintiffs’ claims. Thus, the claims against Schuette in his individual capacity
were properly dismissed.
Because Bowen is protected by quasi-judicial immunity in his individual capacity
on the basis of Plaintiffs’ waiver of the issue below, we need not reach the issue whether
Plaintiffs alleged sufficient individual involvement against Bowen in his individual
capacity.2
2
Further, because we conclude that Schuette is not a proper party to this action, and that Bowen
is entitled to quasi-judicial immunity on the basis of Plaintiffs’ waiver of the issue, and because qualified
immunity is not a defense to Plaintiffs’ remaining claims seeking declaratory and injunctive relief, we need
not address Defendants’ arguments that they are entitled to qualified immunity. See Flagner v. Wilkinson,
241 F.3d 475, 483 (6th Cir. 2001) (“The defense of qualified immunity protects officials from individual
liability for money damages but not from declaratory or injunctive relief.”).
No. 12-2384 Top Flight Entm’t, et al. v. Schuette, et al. Page 15
III.
Accordingly, as to Bowen, we REVERSE the district court’s dismissal of count
I of the amended complaint, AFFIRM the denial of the motion to dismiss counts II and
III for failure to state a claim, AFFIRM the dismissal of count IV, AFFIRM the grant of
quasi-judicial immunity on waiver grounds, and REVERSE the dismissal of Bowen in
his official capacity and REMAND for further proceedings. As to Schuette, we
AFFIRM.
No. 12-2384 Top Flight Entm’t, et al. v. Schuette, et al. Page 16
___________________________________________________
CONCURRING IN PART AND DISSENTING IN PART
___________________________________________________
DAMON J. KEITH, Circuit Judge, concurring in part and dissenting in part. In
my view, Plaintiffs’ claims were properly dismissed and the district court’s judgment
should be affirmed in its entirety.
It is undisputed that there is no state law that gives anyone in the public a right
to gambling. Millionaire-Party licenses are completely discretionary. MCL §§ 432.104,
104a(1) (“the commissioner may issue 1 or more of the following licenses”) (emphasis
added). If the commissioner chooses to issue a license for a Millionaire Party, that
license is given to a charity—not the venue where the event will be held. There is no
license to lease space for a millionaire party. There is no process for approving a would-
be lessor. All of these facts are undisputed by Top Flight. Therefore, Top Flight has not
identified any protected property interest in being an approved location. As the district
court held, Top Flight has provided no source in state law or regulations from which it
derived any expectation of entitlement.
Furthermore, Plaintiffs’ claim that there is some sort of violation of their freedom
of expression is implausible. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)
(holding that a complaint must state sufficient facts to state a claim “to relief that is
plausible on its face.”). While the majority accuses Defendants of ignoring parts of the
complaint—namely the allegation that gaming events should not be held at topless
bars—the majority itself ignores Plaintiffs’ allegations that defeat their own claim.
Plaintiffs, in the complaint, acknowledge that the Lottery Commissioner met with Top
Flight and that the the Commissioner was aware that Top Flight was a “sexually[-]
oriented business offering adult entertainment.” Plaintiffs state, in the complaint, that
the Lottery staff visited the topless bar before it authorized gaming nights at the bar.
The facts, as stated by Plaintiffs, indicate that Top Flight was initially approved
for Millionaire Parties as an establishment that had topless dancers. There are no facts
or allegations in the complaint that tie the topless dancing to the alleged adverse action.
No. 12-2384 Top Flight Entm’t, et al. v. Schuette, et al. Page 17
Top Flight had dancers when it was approved and continues to have them today. There
is no allegation that it would be approved as a location again if the topless dancing were
discontinued. Plaintiffs’ complaint that it is being retaliated against for exercising its
freedom of expression is implausible on its face. The district court properly dismissed
the claim.
Because Plaintiffs’ claims were properly dismissed, I decline to address the
issues of immunity raised in the majority. Accordingly, I respectfully dissent from the
majority’s partial reversal. I would affirm the district court’s judgement in its entirety.