Christy v. Randlett, 88-2170

Decision Date03 May 1991
Docket NumberNo. 88-2170,88-2170
Citation932 F.2d 502
PartiesKaren CHRISTY, Plaintiff-Appellant, v. James R. RANDLETT, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

Karen Christy, pro se.

Janice G. Hildenbrand, Ulanoff, Ross & Wesley, Southfield, Mich., Matthew A. Seward, Garan, Lucow, Miller, Seward, Cooper & Becker, Detroit, Mich., Walter A. Jakubowski, Jr., City Atty's Office, Warren, Mich., for defendants-appellees.

Before RYAN and NORRIS, Circuit Judges, and WILHOIT, District Judge. *

RYAN, Circuit Judge.

This appeal presents the question whether the district court erred in finding that the plaintiff failed to prove, in a 42 U.S.C. Sec. 1983 action, that a municipal supervisory employee violated plaintiff's First Amendment rights in refusing to issue a building permit. We hold that the district court properly concluded that the plaintiff's First Amendment rights were not abridged because the denial of the requested building permit was based upon the enforcement of a constitutionally valid zoning ordinance. We shall, therefore, affirm.

I.

In 1980, Karen Christy began renovation of a building located at 5583 East Eight Mile Road in Warren, Michigan, allegedly for use as a women's lingerie and videotape store. Her efforts to renovate the building were inhibited by her inability to obtain construction permits from the City of Warren. A complete account of the facts regarding attempts by Christy's construction supervisor to obtain building permits for the building may be found in the district court's opinion. See Christy v. Servitto, 699 F.Supp. 618, 619-45 (E.D.Mich.1988). One reason for the delay in issuing the required permits was the city's concern that Christy was actually planning to open an adult entertainment business, in violation of section 14.02 of the Warren Zoning Ordinance. Section 14.02 regulates the so-called adult businesses that are located within 500 feet of a residential area.

George O. Bruggeman, Superintendent of the Division of Buildings and Safety Engineering for the City of Warren's Department of Public Service, testified that he delayed issuing any permits for the building renovation because he believed Christy was attempting to secretly establish an adult bookstore. His suspicion was based on the following: (1) the involvement of Lippman and Whitman in the project, who had a history of misrepresenting the true character of adult businesses at other addresses in the City of Warren; (2) Lippman's statement to the land contract vendor of the premises that the store was to be used for auto part sales; (3) the involvement of attorney William Swor who was known to have represented/owned other adult businesses; (4) the misrepresentation of the owner's identity on the building permit application; and (5) concern that the upstairs for which no permit was sought would be used for still another type of adult business. Bruggeman also based his belief on: (1) his familiarity with the practices of adult business entrepreneurs in the area; (2) the similarities between the proposed interior layout at the building site and the designs of other adult establishments in the area; (3) the construction of a stage and what appeared to be a ticket booth; (4) the location of electrical outlets that were consistent with the installation of peep shows; and (5) Christy's evasiveness during Bruggeman's attempt to learn her intended use of the building.

Christy was ultimately granted the necessary building permits on July 20, 1981. On December 8, 1983, Christy sued the City of Warren and several city employees, including Bruggeman, for damages under 42 U.S.C. Sec. 1983. She alleged that Bruggeman's refusal to issue the necessary building permits from November 17, 1980, to July 20, 1981, violated her free speech rights guaranteed by the First Amendment. Essentially, Christy contended that the City of Warren placed unbridled discretion in the hands of a government official or agency to decide whether to issue the permits, a practice which denied her due process of law. She also insisted, as she does now, that the city's refusal to issue the permits was based upon the suspected content of her speech and thus was a prior restraint resulting in unconstitutional censorship.

Appellees responded by claiming that this is not a case about free speech but, rather, a case concerned with the enforcement of a valid zoning ordinance. The trial court agreed, and, following a bench trial, entered judgment for the defendants. The court concluded that Bruggeman's intention in delaying the issuance of the permits was not to foreclose Christy from using her store to disseminate constitutionally protected material, but rather to enforce the City of Warren's zoning provisions. Christy appeals only the judgment in favor of Bruggeman and the City of Warren.

II.

Under 42 U.S.C. Sec. 1983, a plaintiff must allege (1) deprivation of a right secured by the federal Constitution or laws of the United States, and (2) that the deprivation was caused by a person while acting under color of state law. Flagg Bros. v. Brooks, 436 U.S. 149, 155-57, 98 S.Ct. 1729, 1732-33, 56 L.Ed.2d 185 (1978); Jones v. Duncan, 840 F.2d 359, 361-62 (6th Cir.1988). Absent either element, a section 1983 claim will not lie.

Christy specifically alleges violations of the First Amendment. She claims that Bruggeman's conduct constitutes a prior restraint (1) because she was denied procedural safeguards required by the First Amendment, and (2) because Bruggeman was not limited by proper substantive standards in formulating his suspicions and denying her a building permit, thus giving him unbridled discretion.

With regard to Christy's contention that she was denied certain procedural safeguards, she relies on Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975). In Southeastern Promotions, directors of a municipally-owned theater rejected a theatrical promoter's request to perform the production "Hair" in Chattanooga, Tennessee. 420 U.S. at 548, 95 S.Ct. at 1241. The Court held that the directors' rejection of the promoter's application to use the public theater "accomplished a prior restraint under a system lacking in constitutionally required minimal procedural safeguards." Id. at 552, 95 S.Ct. at 1243. However, in discussing the prior restraint issue, the Court enumerated "established exceptions" to the prior restraint doctrine including: (1) when rejection of the application...

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