Downtown Buggy Llc. v. City Of Memphis

• Decision Date: 15 September 2010
• Docket Number: No. 09-5086.,09-5086.
• Citation: 621 F.3d 512
• Parties: David HOLZEMER; Downtown Buggy, LLC, Plaintiffs-Appellees, v. CITY OF MEMPHIS; County of Shelby; Jeremy Drewery, Defendants, Monique Campbell, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

621 F.3d 512

David HOLZEMER; Downtown Buggy, LLC, Plaintiffs-Appellees,

v. CITY OF MEMPHIS; County of Shelby; Jeremy Drewery, Defendants,Monique Campbell, Defendant-Appellant.

No. 09-5086.

United States Court of Appeals,Sixth Circuit.

Argued: Oct. 15, 2009.

Decided and Filed: Sept. 15, 2010.

COPYRIGHT MATERIAL OMITTED.

ARGUED: Timothy Taylor, Godwin, Morris, Laurenzi & Bloomfield, P.C., Memphis, Tennessee, for Appellant. Joni K. Roberts, Bateman Gibson, L.L.C., Memphis, Tennessee, for Appellees. ON BRIEF: Timothy Taylor, Godwin, Morris, Laurenzi & Bloomfield, P.C., Memphis, Tennessee, for Appellant. Joni K. Roberts, William C. Bateman, Jr., Bateman Gibson, L.L.C., Memphis, Tennessee, for Appellees.

Before BATCHELDER, Chief Judge; GIBBONS, Circuit Judge; MALONEY, Chief District Judge. ^*

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Defendant-appellant Monique Campbell appeals the district court's denial of qualified immunity from the plaintiff-appellees' First Amendment retaliation claim. David Holzemer and Downtown Buggy, LLC, sued Campbell, the City of Memphis, Shelby County, and various other state, county, and city officials under 42 U.S.C. § 1983 for alleged violations of the First, Fourth, Eighth, and Fourteenth amendments, under 42 U.S.C. § 1985 for an alleged conspiracy to deprive both plaintiffs of their civil rights, and under Tennessee tort law. With respect to Campbell, the district court dismissed or granted summary judgement to Campbell on all claims except the § 1983 retaliation claim, for which the district court denied qualified immunity. For the following reasons, we affirm the district court's determination.

I.

David Holzemer formed Downtown Buggy, LLC, with outside investors in 2003. Downtown Buggy owned a fleet of eleven motorized, three-wheel rickshaws, designed by Holzemer, with which it operated a taxi service for visitors to downtown Memphis. The plaintiffs first applied for a permit to operate their buggy service in March 2003, and, after an inspection of the buggies and a hearing, the City of Memphis Permit Office (“Permit Office”) authorized the operation of the buggies. Downtown Buggy began operations soon thereafter.

Sergeant Monique Campbell is a member of the Memphis Police Department (“MPD”) who worked in the Permit Office, where she participated in the decision-making process for granting permits and also played an investigatory and enforcement role. The plaintiffs allege that Campbell prevented their buggy drivers from having the same privileges and opportunities as other similarly situated transportation vehicles in Memphis. Most relevantly, Campbell told buggy drivers that they could not pick up or drop off patrons at the entrance to the Pyramid, ¹ which meant that patrons had to walk several blocks to catch a buggy, while other transportation providers could stop directly outside of the Pyramid to collect patrons.

In late 2003 or early 2004, while driving one of his buggies, Holzemer “happened to cross” Memphis City Councilman Ricky Peete. Peete asked Holzemer how business was going, and Holzemer mentioned the restriction on parking at the Pyramid. Peete told Holzemer that he would look into the restriction, and, according to Holzemer, a Lieutenant Knight of the MPD contacted Holzemer soon afterward to tell him that the buggies could pick up and drop off in front of the Pyramid. The plaintiffs allege that Knight's arrangement was short-lived, and that several months later, Campbell again told Downtown Buggy drivers that they could not pick up and drop off at the Pyramid. Campbell claims that she had no knowledge of Holzemer's conversation with Peete and that there is no evidence that Peete contacted the Permit Office or any other official about the restriction. Campbell also asserts that the Permit Office has no authority to make policy regarding transportation at the Pyramid and that all such decisions were made and enforced by the Special Events Unit of the MPD. Holzemer noted that Campbell had told Downtown Buggy that it could not drive along the Main Street Mall, but that issue had been resolved after he had contacted the Center City Commission. Holzemer also stated that, in general, “[w]hen we had problems, we would talk to the heads of the city council.... We would go and we would talk to the people that ran the city and let them know exactly what was going on.” At one point, according to Holzemer, Kevin Kane, head of the Convention and Visitors Bureau, provided Holzemer with a letter saying that Downtown Buggy was doing a great job and told him to take it to the Permit Office.

Downtown Buggy successfully renewed its permit in March 2004. Some time afterward, following notification from the State of Tennessee that buggies constituted off-road vehicles and did not require license plates, the plaintiffs returned their license plates to the State and operated without plates until March 2005. At that time, Campbell and her supervisor at the Permit Office, Lilli Jackson, denied renewal of Downtown Buggy's permits on the ground that the buggies lacked license plates. Despite receiving evidence of the State's notification, Campbell and Jackson insisted that the buggies be licensed. Downtown Buggy subsequently obtained new license plates.

At a meeting on April 6, 2005, the Permit Office refused to issue a permit despite the new licenses. Holzemer, accompanied by an attorney and other associates, met with the Permit Office again the following day and received a permit several days later. As a result of the delayed permit process, Downtown Buggy was unable to operate for two weeks. Furthermore, the plaintiffs allege that MPD officers then began to harass their drivers. Campbell also allegedly informed Downtown Buggy that it would no longer be able to service patrons at the FedEx Forum, which had replaced the Pyramid as Memphis's premier event venue.

On the morning of July 24, 2005, Downtown Buggy's premises were raided by the Auto/Cargo Task Force (“Task Force”), which is made up of Federal Bureau of Investigation and National Insurance Crime Bureau agents working with local county and city law enforcement. The Task Force followed an anonymous tip alleging that Downtown Buggy was altering serial numbers on the buggies to avoid getting permits for additional buggies. Holzemer signed a consent to search the premises, allegedly under duress. While Task Force members were confiscating the buggies, searching the property, and frisking and detaining Holzemer, Campbell arrived at Downtown Buggy to verify the buggies' vehicle identification numbers following the Task Force's discovery of one buggy with mis-matching numbers. The plaintiffs contend that Campbell searched Downtown Buggy's belongings without a warrant or probable case and “jeered at” Holzemer, telling him “he did this to himself.” Campbell stipulated, for the purposes of summary judgment, to telling him: “I told you that you were going to do this to yourself” and, “[a]s of this moment, you are officially shut down.” Holzemer was taken to a police station and questioned for approximately three hours. Following the confiscation of the buggies, Holzemer alleges that the MPD rebuffed all attempts by him or his parents to provide documentation and secure the return of the buggies and disallowed the use of any interim replacement buggies.

In October 2005, Holzemer discovered that warrants for his arrest had been issued, turned himself into the MPD, and retained an attorney. All charges were dismissed in November 2005 after a General Sessions Judge found that Tennessee Code § 55-5-112 (fraudulently defacing, destroying, or altering motor vehicle numbers) does not apply to bicycle buggies. Soon thereafter, Holzemer went to the Permit Office to reinstate the permits and to recover the buggies. Campbell referred Holzemer to Jackson, who informed him that she could not issue permits without vehicles and referred him to “Auto Cargo,” which in turn referred him to the impound lot. On recovering the buggies, Holzemer discovered that they had sustained severe damage and were unusable; he sold them for scrap.

Between December 2005 and February 2006, Holzemer met twice with Campbell to try to secure permits for Downtown Buggy. Campbell first told him that he could not have permits because he had no vehicles. Holzemer offered to buy new buggies, but only if he received assurances that permits would be forthcoming. Subsequently, the Permit Office informed him on two occasions that to receive a new permit, he would have to reapply and provide proof that the felony charges had been dropped. In April 2006, Holzemer provided such proof to the Permit Office, which notified the City Attorney. Holzemer alleged that when he went to the City Attorney's Office, they had never received the fax from the Permit Office requesting confirmation of the dropped charges. Despite inquiring by letter and in person with the City Attorney, Holzemer heard nothing regarding the reinstatement of the permits. He returned to the Permit Office in January 2007 and March 2007, but Campbell repeatedly refused to speak with him.

Holzemer and Downtown Buggy filed a complaint in federal district court on July 12, 2006, against the State of Tennessee, Shelby County, the City of Memphis, and various public officials, including MPD officers, county sheriff's deputies, and other city employees in their individual capacities. The plaintiffs filed an amended complaint on October 26, 2006, in which they first alleged the instant claim of First Amendment retaliation. The plaintiffs brought claims under 42 U.S.C. §§ 1981, 1983, 1985, and 1988, alleging violations of their rights under the First, Fourth, Eighth, and Fourteenth amendments. The plaintiffs also brought a number of state law claims.

The defendants filed motions to dismiss, all of which the district court addressed in an order entered September 25, 2007. The district court found that the statute of...