Mattox v. City of Forest Park

Decision Date22 April 1999
Citation183 F.3d 515
CourtU.S. Court of Appeals — Sixth Circuit

Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 95-00891--Herman J. Weber, District Judge. [Copyrighted Material Omitted] Scott T. Greenwood (argued and briefed), Greenwood & Associates, Cincinnati, Ohio, for Plaintiffs-Appellees.

Lawrence Edward Barbiere (argued and briefed), Schroeder, Maundrell, Barbiere & Powers, Cincinnati, Ohio, for Defendants-Appellants.

Before: Kennedy, Siler, and Moore, Circuit Judges.


Karen Nelson Moore, Circuit Judge.

Defendants in this case appeal the district court's denial of qualified immunity to the individual defendants and argue for pendent appellate jurisdiction over the city in this civil rights action. The case arises from the issuance of a 690-page report -- the result of extensive criminal and administrative investigations into the Forest Park Fire Department. In the proceedings below, the magistrate Judge concluded (and the district court accepted) that one of the plaintiffs' claims under 42 U.S.C. § 1983 -- First Amendment retaliation -- survives the qualified immunity defense proffered by defendants. We conclude that no such claim survives and reverse the district court.

A. Facts

The plaintiffs are Brenda Mattox, member of the City Council of Forest Park from her election in November 1991 until her resignation following an electoral defeat in November 1993, and Dona Holly, a volunteer with and then member of the Forest Park Fire Department from 1989 to 1993. The defendants are the City of Forest Park, Police Chief Stephen Vollmar, City Manager Ray Hodges, and police officer Kenneth Hughes. In September 1992, several firefighters (among them Dona Holly) raised concerns about the fire department with Council Member Mattox because Mattox chaired the Public Safety Committee, which has authority to oversee the police and fire departments. Mattox relayed these concerns to the rest of the council and to City Manager Hodges; ultimately, the council directed Hodges to conduct an investigation of the fire department. The City's investigation began in early 1993; in tandem with the fire department's internal administrative investigation was a criminal investigation by the police force. The police investigation focused on several incidents, particularly the ransacking of a rescue unit, the placement of a lock on a hazardous materials truck, and the theft of some morphine.

Hodges directed the compilation of a preliminary report. Upon its completion, the council requested a final and more thorough report, which was the 690-page report released October 12, 1993. Apparently Chief Vollmar directed Captain Hughes to compile the information for the reports, and Hughes claims that he was informed by the City Solicitor that all information gathered as part of the investigations was a matter of public record and should be placed in the report. The report was made available to the press and to the public in general. The report is a hodgepodge of information, including transcripts of interviews, time lines, letters, faxes, and diary entries, among other things. It also contains an introduction and "overview" section, J.A. at 390-405, written at least in part by Vollmar, which contains some of the statements allegedly made in retaliation against plaintiffs. Subsequent to producing the written report, the police department produced a video overview of the report, which entailed Vollmar and Hughes discussing the substance of the report and editorializing as to the process and its results. The video runs thirty-four minutes in length and was shown on local-access television as many as nine times just prior to the November 1993 City Council elections. Mattox was running to retain her council seat. Both plaintiffs contend that the comments and allegations contained in the report and video were designed to punish them for their part in initiating the investigations of the fire department.

B. Procedural History

The complaint in this action was filed on October 11, 1995.1 The defendants filed an answer in November 1995, an amended answer in June 1996, and moved for summary judgment in December 1996. Plaintiffs opposed the summary judgment motion, and following receipt of the defendants' reply brief, the magistrate Judge held a hearing on the motion on July 17, 1997. His Report and Recommendation, issued on February 27, 1998, suggested granting defendants' motion for summary judgment as to all counts except one: the content of the overview to the report and of the police video might enable plaintiffs to make out a claim of First Amendment retaliation under 42 U.S.C. § 1983, and, in the magistrate Judge's view, the individual defendants were not entitled to a defense of qualified immunity on this count. The defendants filed objections to the magistrate Judge's report on March 9, 1998. On March 31, 1998, the district court adopted the Report and Recommendation fully in a four-page order, and the defendants subsequently filed a timely appeal.

A. Jurisdiction

Mitchell v. Forsyth, 472 U.S. 511 (1985), categorized denials of summary judgment on the basis of qualified immunity as "collateral orders" immediately appealable under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), to the extent that they present issues of law separable from the merits yet potentially determinative of a claim. The recent Supreme Court case of Johnson v. Jones, 515 U.S. 304 (1995), is intended to clarify when appellate courts can take jurisdiction of an interlocutory appeal from a denial of qualified immunity, and it holds that if the denial turns on the existence of a genuine issue of material fact in dispute, an interlocutory appeal is improper and the court is without jurisdiction to hear the appeal.

Although Johnson itself presented a clean case for its own application -- the defendant police officers contested the very fact of their presence at the scene of the event -- many cases involve issues of fact and law in the summary judgment determination by the district court. Here, the district court indicated that "[r]etaliation against citizens for the exercise of their Constitutional rights" was clearly forbidden at the time the events in this case transpired, and also that the intent of defendants is still a material fact in dispute. See J.A. at 97-98. Under the doctrine of Johnson v. Jones, this court cannot review on interlocutory appeal a district court's determination that a genuine issue of fact exists for trial, see Johnson, 515 U.S. at 319, but we retain jurisdiction over the legal question of qualified immunity, i.e., whether a given set of facts violates clearly established law. We review de novo the district court's denial of qualified immunity. See McBride v. Village of Michiana, 100 F.3d 457, 460 (6th Cir. 1996).

B. The Substance of the Final Report

As a preliminary matter, we note that the plaintiffs contend that the release of the entire October report (including the overview section) and the police video were retaliatory in nature. Plaintiffs do not contend, nor could they, that the underlying investigation conducted by defendants is improper because those actions would be barred by the two-year statute of limitations. See J.A. at 40 (Mag. J. R&R at 9). But the report was released on October 12, 1993, and the plaintiffs filed suit on October 11, 1995. The complaint and plaintiffs' brief on appeal each make many references to the substance of the report and the private information disclosed about Holly by way of the report's release. Therefore, the report itself is also at issue in this appeal.

The magistrate Judge concluded otherwise. He wrote:

"[T]he Police Department conducted a fair and proper investigation into issues of legitimate interest to the community of Forest Park. The facts presented in the October Report appear to be objective and correct, therefore the substance of the October Report is not at issue in this case."

J.A. at 54 (Mag. J. R&R at 23). Although the defendants filed objections to the magistrate Judge's report pursuant to Federal Rule of Civil Procedure 72(b),2 the plaintiffs did not. This court has used its supervisory power to hold that though the language of the rule is discretionary, "a party shall file objections with the district court or else waive right to appeal." United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981). The Walters court also made clear that "a party shall be informed by the magistrate that objections must be filed within ten days or further appeal is waived." Id. The Supreme Court affirmed this court's application of the Walters rule in Thomas v. Arn, 474 U.S. 140 (1985), explicitly holding that "[s]uch a rule, at least when it incorporates clear notice to the litigants and an opportunity to seek an extension of time for filing objections, is a valid exercise of the supervisory power...." Id. at 155. The report and recommendation in this case, however, contains no such notice to the plaintiffs, and therefore does not comport with the Walters rule. We cannot presume that the plaintiffs have waived their argument that the substance of the report is still at issue as part of their retaliation claim.

Moreover, this situation is similar in some respects to Turpin v. Kassulke, 26 F.3d 1392 (6th Cir. 1994), cert. denied, 513 U.S. 1118 (1995), where the appellee neglected to object to a magistrate Judge's proposed adverse resolution of an evidentiary issue. The Turpin court wrote:

"Although the magistrate Judge proposed that the secondary issue of the admissibility of the writings be resolved in [appellant's]...

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