Anders v. Cuevas
| Decision Date | 08 January 2021 |
| Docket Number | Nos. 19-2191/20-1165/1166,s. 19-2191/20-1165/1166 |
| Parties | Shane ANDERS; Star Towing and Recovery, LLC; Area Towing and Recovery, Plaintiffs-Appellees, v. Tony CUEVAS and Darzeil Hall (19-2191); Herman Ramik (20-1166); Rick Sollars (20-1165), Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ON BRIEF: Eric M. Jamison, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellants in 19-2191. John C. Clark, Geoffrey S. Wagner, GIARMARCO, MULLINS & HORTON, P.C., Troy, Michigan, for Appellants in 20-1165 and 20-1166. Andrew A. Paterson, Ann Arbor, Michigan, for Appellees.
Before: KETHLEDGE, DONALD, and LARSEN, Circuit Judges.
In these consolidated interlocutory appeals, Defendant-Appellants challenge the district court's orders denying them a variety of asserted immunities as to Plaintiff-Appellees’ claims under 42 U.S.C. § 1983 and Plaintiff-Appellees’ defamation claim. We AFFIRM in part, REVERSE in part, and VACATE in part the district court's denial of qualified immunity in Case No. 19-2191 and AFFIRM the district court's denial of immunities in Case Nos. 20-1165 and 20-1166.
The following facts are taken from Appellees’ Amended Complaint and are accepted as true for purposes of this appeal. Plaintiff-Appellee Shane Anders ("Anders") is the owner of two towing and storage companies, Plaintiff-Appellees Star Towing and Recovery, LLC ("Star Towing") and Area Towing and Recovery, Inc. ("Area Towing") (collectively, "Appellees"). When Anders purchased Star Towing in 2015, Star Towing had already been contracted to conduct tows on behalf of the Michigan State Police for nearly 15 years and was on the state's non-preference tow rotation list for its Monroe County Post ("Monroe Post"). After Anders took ownership of Star Towing, the relationship between Star Towing and state police gradually declined. In December 2015, a member of the state police's internal affairs division approached Anders regarding tickets to sporting events that Anders had provided to state troopers. Anders informed the investigator that he kept a list of the troopers to whom he had given tickets and provided the investigator with that list. What transpired as to this investigation over the next two years is not clear, but in November 2017, Anders again met with investigators to further discuss the tickets. He provided state investigators with a more detailed list of approximately 18 state troopers to whom he had given tickets. Anders also assured the investigators that neither he nor his tow companies received any special treatment in return for the tickets.
Each of the 18 troopers who accepted tickets received verbal and/or written reprimands from their superiors as a result of receiving the tickets. The troopers and other state police administrators were not happy that Anders disclosed their names. Defendant-Appellant Tony Cuevas ("Cuevas"), the commander for the Monroe County Post, was particularly aggrieved. On March 15, 2018, Cuevas sent Anders a letter informing him that he was removing Star Towing from the non-preference tow rotation list for the Monroe Post.
The fallout from the state investigation also affected Area Towing, which is on the state tow rotation. Defendant-Appellant Darzeil Hall ("Hall") was one of the troopers whose name was revealed to investigators. Subsequently, Hall has pressured the staff of Area Towing to schedule and hold its auctions on weekdays. This is a problem for Area Towing, which has far greater availability to hold its auctions on the weekends. Yet, Hall has "harass[ed] and badger[ed]" Area Towing staff to move the auctions. [R. 30, PageID 259]. Appellees assert that Hall is attempting to create pretext for removing Area Towing from the state towing rotation.
In a separate and simultaneous battle, Appellees are having problems with the City of Taylor, Michigan ("Taylor"). For 20 years, Area Towing has provided towing services to Taylor. On November 1, 2007, Area Towing entered into an exclusive three-year contract with Taylor to provide towing services. At Taylor's discretion, that contract was renewed twice, giving Area Towing an exclusivity arrangement with Taylor through November 1, 2016.
In the summer of 2016, Defendant-Appellant Rick Sollars ("Sollars"), the Mayor of Taylor, required that Area Towing use Gasper Fiore's company, B & T Towing, for certain heavy-duty tows. Anders expressed reservations in working with Fiore, who at the time was under federal criminal investigation for involvement in a towing scandal. Specifically, Anders "expressed to both the former Taylor Chief of Police ... and corporation counsel for the City of Taylor that [he] did not feel comfortable using any company owned by Gasper Fiore to facilitate heavy-duty tows." When he let it be known that he did not want to work with Fiore, Anders was advised that it would be "in his best interest" to do so and, that if he did not, Taylor would not renew his contract.1
On October 18, 2016, with the latest installment of the contract facing expiration, the Taylor City Council approved a resolution to allow Area Towing to continue providing services on a month-to-month basis so that Taylor would have time to issue a request for proposal ("RFP") before administering a new contract. On November 14, 2016, the city council issued the RFP, with proposals due on December 1, 2016.
Appellees claim that Sollars crafted the RFP in a way that would eliminate Area Towing from consideration so that Taylor would steer more of its towing services to Fiore's company. They figure as much because the former Taylor police chief advised them that Sollars personally directed her to change the RFP to place a heavier emphasis on heavy-duty towing capabilities, despite her advice that such emphasis was not necessary given the infrequency of heavy-duty tows. Even though Anders believed Sollars was rigging the process, Anders and Area Towing submitted a timely proposal in response to the RFP.
On May 31, 2017, Fiore was indicted by a federal grand jury, and Anders reiterated his discomfort in having to continue to use B & T Towing for heavy-duty tows. However, shortly after Fiore's indictment, B & T was no longer an authorized tower for the state police, and Area Towing no longer had to use its services. In December 2017, a published article identified Anders as an individual who had been recorded on a federal wiretap speaking to Fiore. The FBI and the U.S. Attorney's Office then interviewed Anders, and, during those conversations, Anders revealed to federal agents that he had no choice but to work with Fiore or else Fiore would notify Sollars, which would put Area Towing's business with the city at risk. On March 8, 2018, Anders’ defense attorney received a call from the U.S. Attorney's Office notifying him that Anders could publicly reveal that he was not a target of the federal criminal investigation involving Fiore.
On March 20, 2018, the city council rejected Sollars’ request to approve three tow companies that had submitted proposals in response to the RFP. Instead, by a 5–2 vote, the city council voted to approve another three-year towing contract for Area Towing. On March 23, 2018, Sollars, exercising his powers as mayor under the city charter, vetoed the March 20, 2018 resolution, which meant that Area Towing would remain on a month-to-month contract with the city. Appellees claim that Sollars executed the veto because Anders had refused to give him campaign contributions, complained about using Fiore's company, and provided information to the FBI and U.S. Attorney's Office about Sollars’ conduct.
Enter Defendant-Appellant Harold "Butch" Ramik ("Ramik"), a member of the city council. Ramik contacted a reporter from Fox 2 News, which then aired a story on March 27, 2018 in which Ramik claimed to have received complaints from residents about Area Towing and accused Anders of victimizing and stealing from the city. After the story aired, Ramik told city officials and residents that Anders was a "crook" and that he was going to "destroy" Anders and Area Towing.
Despite a tumultuous relationship with various city officials throughout the remainder of 2018,2 Area Towing is still providing month-to-month services to Taylor, in accordance with the October 18, 2016 resolution of the city council.
On April 4, 2019, Appellees filed suit under 42 U.S.C. § 1983, alleging violations of the First and Fourteenth Amendments. In Count I, Anders and Star Towing brought a First Amendment retaliation claim against Cuevas for removing Star Towing from the Monroe Post. In Count II, Anders and Area Towing brought a First Amendment retaliation claim against Hall for his "constant[ ] pressure" and "harassment" of Area Towing. In Count III, Anders brought an Equal Protection claim against Cuevas for removing Star Towing from the Monroe Post. In Count IV, Anders brought a First Amendment retaliation claim against Sollars, in both his individual and official capacities, and the City of Taylor for Sollars’ vetoing of the three-year contract that the city council had approved for Area Towing.3
On May 30, 2019, the City of Taylor, Sollars, and Ramik, together, filed a motion to dismiss. On June 13, 2019, Cuevas and Hall ("County-Appellants") filed a separate motion to dismiss, asserting that they were each entitled to qualified immunity on all Counts. On September 12, 2019, the district court dismissed Anders’ individual claims in Counts I, II, and IV because he lacked standing to bring those claims on his own behalf rather than as an agent of the towing companies. The district court also granted Cuevas qualified immunity on Count I "with respect to the claim that he retaliated against [Appellees] as a result of Anders’ failure to comment to the media." The district court also dismissed claims against Ramik without prejudice. The motions were otherwise denied.
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