388 F.3d 216 (6th Cir. 2004), 03-6336, Tucker v. City of Richmond, Ky.

Docket Nº:03-6336.
Citation:388 F.3d 216
Party Name:Gregory TUCKER, Plaintiff-Appellee, v. CITY OF RICHMOND, Kentucky; Ann Durham, Mayor, in her individual capacity; Sam Manley, in his individual capacity; Charles DeBord, in his individual capacity; Kenneth Caldwell, in his individual capacity, Defendants-Appellants.
Case Date:October 28, 2004
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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388 F.3d 216 (6th Cir. 2004)

Gregory TUCKER, Plaintiff-Appellee,

v.

CITY OF RICHMOND, Kentucky; Ann Durham, Mayor, in her individual capacity; Sam Manley, in his individual capacity; Charles DeBord, in his individual capacity; Kenneth Caldwell, in his individual capacity, Defendants-Appellants.

No. 03-6336.

United States Court of Appeals, Sixth Circuit

October 28, 2004

Argued: Aug. 10, 2004

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ARGUED:

Douglas L. McSwain, Sturgill, Turner, Barker & Moloney, Lexington, KY, for Appellants.

Michael Dean, Law Offices of Michael Dean, Irvine, KY, for Appellee.

ON BRIEF:

Douglas L. McSwain, Charles D. Cole, Andrew DeSimone, Sturgill, Turner, Barker & Moloney, Lexington, KY, for Appellants.

Michael Dean, Law Offices of Michael Dean, Irvine, KY, for Appellee.

Before: KEITH, MARTIN, and ROGERS, Circuit Judges.

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

Gregory Tucker filed claims pursuant to 42 U.S.C. § 1983 against the City of Richmond, Kentucky, and against the following City officials and employees: Mayor Ann Durham, Police Chief Charles DeBord, Assistant Police Chief Kenneth Caldwell and Police Officer Sam Manley. (Although

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there is some discrepancy in the briefs and the joint appendix regarding the correct spelling of Chief DeBord's name, we have adopted the spelling used in the defendants' appellate brief.) Tucker alleged that the individual defendants unconstitutionally retaliated against him for exercising his First Amendment rights and that the City maintained an unconstitutional policy of retaliating against those who criticize City officials. The individual defendants appeal the district court's ruling that they are not entitled to qualified immunity. Additionally, the City purports to appeal the district court's denial of its motion to dismiss and/or for summary judgment, though Tucker maintains that this Court lacks jurisdiction over the City's appeal. For the reasons that follow, we hold that the individual defendants are entitled to qualified immunity because Tucker has failed to demonstrate a constitutional violation. We also exercise pendent jurisdiction over the City's appeal and hold that the City is entitled to judgment as a matter of law. We therefore VACATE the district court's judgment and REMAND with instructions to award judgment in favor of all defendants.

I.

Tucker was a vocal critic of various public officials in the City of Richmond, Kentucky. Some of his criticisms were reflected in flyers that he distributed across the City alleging that certain public officials, including Mayor Ann Durham, had engaged in various forms of official misconduct. All defendants have conceded that these flyers constitute protected speech under the First Amendment. Tucker began distributing these constitutionally-protected flyers in March or April of 2000, but there is some dispute as to when he stopped distributing them. Tucker stated in his deposition that he distributed the flyers until the fall of 2001, but he indicated in a later affidavit submitted in opposition to the defendants' motion for summary judgment that he actually stopped distributing the flyers earlier, in the late fall or early winter of 2000. No criminal charges were filed with respect to the protected flyers.

Beginning in April or May of 2000, a second series of flyers appeared across the City of Richmond. Unlike the protected flyers, which charged official misconduct, these flyers accused certain City officials of "private immorality, such as drug abuse, adultery, or pedophilia." It is undisputed that these flyers are not constitutionally protected; in fact, a criminal investigation was launched as soon as the first of these flyers appeared. The distribution of the unprotected flyers ceased in April 2001. On May 10, 2001, Tucker and two of his associates, James "Crazy Snake" Blake and Steven M. Womack, were indicted on charges stemming from their involvement in distributing these flyers. While Blake and Womack were found guilty, Tucker was ultimately acquitted.

Tucker alleges that he was subjected to harassment and retaliation by the individual defendants as a result of his distribution of the constitutionally-protected flyers concerning official misconduct and corruption. Although his allegations are quite vague and generalized, it appears that there are seven particular alleged actions by the individual defendants about which he complains:

(1) police officers conducted "poster patrols" throughout the Richmond area searching for individuals putting up posters, and Tucker was named as a suspect in connection with those patrols;

(2) police officers conducted patrols throughout the subdivision in which Tucker lived;

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(3) Assistant Police Chief Caldwell interviewed some of Tucker's college professors in an effort to gain more information about him;

(4) Officer Manley forcibly searched Tucker and threatened him with arrest on one occasion as he entered City Hall;

(5) Officer Manley directed Officer Teresa Culton to go to the Madison County Clerk's office to investigate how a member of the public would go about gaining access to public tax records;

(6) during a speech in a City Commission meeting, Mayor Durham mentioned Tucker's name, among others, saying that "[w]e should never have to be insulted or threatened by the Kay Jones[es], the Steve Womacks, the Jim Blakes, the Greg Tuckers, the Dwayne Roadens of this World ....";

(7) following Tucker's filing of an ethics complaint over what he perceived to be improper conduct by City officials, the City adopted an ordinance that requires a party who files a frivolous ethics complaint to pay the attorneys' fees of the accused official, and Mayor Durham voted for this ordinance.

Tucker alleges, and Police Chief DeBord concedes, that by virtue of his position, Chief DeBord is responsible for all of the police activity about which Tucker complains. It is also alleged that Mayor Durham, in addition to making...

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