Mackey v. Berryman
| Decision Date | 15 January 2019 |
| Docket Number | Civil Action No. 17-CV-12359 |
| Parties | WENDELL SHANE MACKEY, Plaintiff, v. JAMES BERRYMAN and MARGARET NOE, Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
HON. BERNARD A. FRIEDMAN
This matter is presently before the Court on defendant's motion for summary judgment [docket entry 41]. Plaintiff has filed a response in opposition. Pursuant to E.D. Mich. LR 7.1(f)(2), the Court shall decide the motion without a hearing.
This action challenges an ex parte personal protection order ("PPO") issued by defendant Lenawee County Circuit Judge Margaret Noe ("Judge Noe") against plaintiff Wendell Shayne Mackey ("Mackey"). When Mackey commenced the instant action, he was running for city commissioner of Adrian, Michigan, and defendant James Berryman ("Berryman") was the mayor of Adrian. Compl. ¶¶ 8-9. Mackey's and Berryman's history dates back to 1986, when Mackey broke into and stole from Berryman's flower shop, which resulted in Mackey being convicted and sent to prison. Id. ¶¶ 28, 30; Def.'s Exs. A-F.
Mackey describes himself as Berryman's "political adversary" and "vocal critic." Compl. ¶ 3. In 2017 Mackey expressed his criticism of local officials - in particular, Berryman - by publishing articles online, writing letters to the local newspaper's editor, speaking out at city commission meetings, and sending emails to the city attorney. Id. ¶¶ 11, 18, 23-24, 27, 30-31, 46-48. When Mackey was speaking during the public comment portion of a city commission meeting on June 19, 2017, Berryman asked whether he was the same Mackey who had broken into his flower shop years earlier. Def.'s Ex. D at 0:58-1:05. In his response, Mackey called Berryman a "corrupt, dirty, crooked politician" and said he was going to be "a thorn in [Berryman's] side" and was "not going away." Id. at 2:00-2:10. Mackey also stated that Berryman had conspired with a judge to put him in prison for the flower shop theft. Id. at 1:08-1:14. A police report by Adrian Police Chief Vince Emerick documents this "heated exchange" and identifies Berryman as the victim of "Stalking (Misdemeanor)" and Mackey as the suspect/offender. Def.'s Ex. E at 2. The report includes the following comments by Chief Emerick:
After the meeting Mayor Berryman asked me to record the exchange in a report as he intended to apply for a personal protection order. While no direct threats were made, Mayor Berryman indicated he felt threatened by the looks and gesturing of Mackey as well as his behavior prior to the commission meeting. Previous behavior included letters written to the newspaper and postings made online.
At a city commission meeting on July 3, 2017, Mackey voiced his concern that city employees had been denied the right to be heard at the June 19 meeting due to Berryman's "violations of fundamental parliamentary procedure." Compl. ¶¶ 44-48. Berryman "became visibly upset" and disputed Mackey's accusation. Id. ¶ 49. Two days later, Mackey emailed the city attorney - copying every city commissioner, including Berryman - about the July meeting, "reveal[ing] . . . Berryman's lack of knowledge regarding fundamental tenants [sic] of parliamentary procedure." Id. ¶¶ 52-54; id. Ex. O.
On July 6, 2017, Berryman filed a petition in Lenawee County Circuit Court for a PPO against Mackey. Id. ¶ 56; Def.'s Ex. F. Berryman indicated in the petition that he sought thePPO because of Mackey's July 5 email to the city attorney, along with the following reasons: Mackey's conviction involving Berryman's flower shop; Mackey's May 20, 2017, letter to the local newspaper's editor containing "accusations of fraud, corruption [and] kickbacks, etc."; Mackey "rant[ing]" at the June 19 city commission meeting "that [Berryman] was at fault for [Mackey's] incarceration - such that [Berryman] filed a police report"; Berryman's belief that "Mackey clearly blames me for his incarceration in 1986 [and] carries those misguided feelings to this date"; Mackey posting "false accusations on social media" against Berryman and Berryman's friends "using their pictures [and] copies of their signatures without their permission"; and Mackey's "use of social media [and] emails [and] public encounters . . . escalating in frequency and [being] hostile in tone." Compl. ¶ 57; Def.'s Ex. F PageID 1630, 1632. Berryman further indicated that he sought an ex parte PPO "because immediate and irreparable injury, loss, or damage will occur between now and a hearing or because notice itself will cause irreparable injury, loss, or damage before the order can be entered." Def.'s Ex. F PageID 1630. Attached to the petition were documents related to the flower shop incident and Mackey's criminal history, as well as a few of Mackey's writings, such as the July 5 email. Id. PageID 1639-48.
On July 7, 2017, Judge Noe granted Berryman's request for a PPO because of "[e]scalating antagonistic aggression against Petitioner; criminal history (Petitioner - victim)[;] use of media to harass Petitioner." Def.'s Ex. G PageID 1651. She issued the PPO ex parte "because irreparable injury, loss, or damage will result from delay required to give notice or notice itself will precipitate adverse action before an order can be issued." Compl. ¶ 60; Def.'s Ex. G PageID 1651. The PPO prohibited Mackey from "stalking"1 and "posting a message through theuse of any medium of communication, including the Internet or a computer or any electronic medium, pursuant to MCL 750.411s." Def.'s Ex. G PageID 1651. Mackey alleges that Judge Noe, "a contributor to Democratic candidates, knew or reasonably should have known that there was no basis in law that could support issuing a [PPO] ex parte on behalf of Defendant Berryman, a Democratic candidate, against Plaintiff for wholly political activity that lies at the core of the First Amendment." Compl. ¶ 69. Mackey also alleges that Judge Noe issued the PPO ex parte "in an effort to silence [his] criticism of Defendant Berryman and to provide Defendant Berryman a competitive advantage in the local election." Id. ¶ 70.
Mackey filed a motion to set aside the PPO, and at a hearing on this motion on July 26, 2017, Judge Noe granted Mackey's request that she recuse herself because in the interim the instant action had been filed against her in this Court. Def.'s Ex. H. at 9-10, 14. The case was reassigned to Washtenaw County Circuit Judge Patrick Conlin, Jr., who after conducting a three-day hearing on the matter, ruled on October 10, 2017, that there was "cause to maintain the [PPO]" but made certain modifications to it to allow Mackey to campaign. Def.'s Exs. I, K at 90, 92-97. On October 31, 2017, Mackey appealed Judge Conlin's ruling to the Michigan Court of Appeals, where the matter remains pending. Def.'s Br. at 6; Def.'s Ex. L.
In the complaint, Mackey asserts federal and state law claims against Berryman and Judge Noe. Counts I-IV are brought under 42 U.S.C. § 1983. In Count I, Mackey alleges that defendants retaliated against him in violation of his First Amendment rights. Compl. ¶¶ 89-94. In Counts II and III, Mackey alleges that defendants deprived him of procedural and substantive dueprocess under the Fourteenth Amendment. Id. ¶¶ 95-110. In Count IV, Mackey alleges that defendants violated his equal protection rights under the Fourteenth Amendment. Id. ¶¶ 111-16. Count V, which is brought under 42 U.S.C. § 1985, is a conspiracy claim against defendants. Id. ¶¶ 117-121. In Counts VI-VIII, Mackey asserts the following state law claims against defendants: abuse of process, civil conspiracy, and intentional infliction of emotional distress. Id. ¶¶ 122-132. For each of these eight counts Mackey requests a declaratory judgment, damages, and injunctive relief to prevent defendants from further violating his constitutional rights. Id. at 22, 24-29.
Judge Noe seeks summary judgment. She argues that "[t]here is no question that she is entitled to absolute judicial immunity from all of Plaintiff's claims against her, which stem solely from her decision to grant the ex parte PPO." Def.'s Br. at 9. Having considered the parties' briefs and the applicable law, the Court concludes that Judge Noe has absolute judicial immunity and therefore grants summary judgment in her favor.
Under Fed. R. Civ. P. 56(a), summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine dispute as to any material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). Viewing the evidence in the light most favorable to the opposing party, summary judgment may be granted only if the evidence is so one-sided that a reasonable fact-finder could not find for the opposing party. See id. at 248-50; Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478-80 (6th Cir. 1989). In other words, "[a] material issue of fact exists where a reasonable jury, viewing the evidence in the light most favorable to the non-moving party, could return a verdict for that party." Vollrath v. Georgia-Pacific Corp., 899 F.2d 533, 534 (6th Cir. 1990). "The pivotal question is whether the party bearing the burden of proof has presented a jury question as to each element of its case." Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996).
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