Mezibov v. Allen

• Decision Date: 16 June 2005
• Docket Number: No. 03-3973.,03-3973.
• Citation: 411 F.3d 712
• Parties: Marc D. MEZIBOV, Plaintiff-Appellant, v. Michael K. ALLEN, Hamilton County Ohio, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

411 F.3d 712

Marc D. MEZIBOV, Plaintiff-Appellant, v. Michael K. ALLEN, Hamilton County Ohio, Defendants-Appellees.

No. 03-3973.

United States Court of Appeals, Sixth Circuit.

Argued: August 12, 2004.

Decided and Filed: June 16, 2005.

COPYRIGHT MATERIAL OMITTED

ARGUED: Michael J. O'Hara, O'Hara, Ruberg, Taylor, Sloan & Sergent, Covington, Kentucky, for Appellant. Lawrence Edward Barbiere, Schroeder, Maundrell, Barbiere & Powers, Cincinnati, Ohio, for Appellees. ON BRIEF: Michael J. O'Hara, Suzanne Cassidy, O'Hara, Ruberg, Taylor, Sloan & Sergent, Covington, Kentucky, for Appellant. Lawrence Edward Barbiere, Michael E. Maundrell, Schroeder Maundrell, Barbiere & Powers, Cincinnati, Ohio, for Appellees.

Before: SILER, BATCHELDER, and MOORE, Circuit Judges.

BATCHELDER, J., delivered the opinion of the court, in which SILER, J., joined.

MOORE, J. (pp. 723-26), delivered a separate opinion concurring in part and dissenting in part.

OPINION

BATCHELDER, Circuit Judge.

Plaintiff-Appellant Marc D. Mezibov ("Mezibov") appeals the district court's dismissal, pursuant to fed. R. Civ. P. 12(b)(6), of his 42 U.S.C. § 1983 claim of retaliation against Hamilton County Prosecutor Michael K. Allen ("Allen"). Mezibov, a criminal defense attorney, claims that Allen uttered defamatory comments about Mezibov in retaliation for Mezibov's pursuing his First Amendment right to "fil[e] motions and rais[e] legitimate defenses" on behalf of his clients in the courtroom. Because the activity that Mezibov claims subjected him to retaliation is not a constitutionally protected activity, and because, even if it were, a criminal defense attorney of ordinary firmness would not have been chilled from engaging in that activity as a consequence of Allen's adverse action, we affirm the district court's dismissal of Mezibov's § 1983 claim.

BACKGROUND

Mezibov is an attorney licensed to practice in the state of Ohio. He served as defense counsel for Dr. Jonathan Tobias during Tobias's criminal trial in Hamilton County, Ohio, on 26 counts of abuse of a corpse. Allen was the Hamilton County Prosecutor during Dr. Tobias's prosecution. In the course of representing Dr. Tobias, Mezibov filed three motions seeking to dismiss the indictment and disqualify Allen on the basis that he had engaged in improper conduct. The trial court denied the motions, and on October 1, 2001, a jury convicted Dr. Tobias of two of the 26 counts of abuse of a corpse.

Mezibov alleges that immediately following the jury verdict, Allen released a statement to the local media which said the following:

Obviously, this [Mr. Mezibov] is a man who doesn't try too many cases and the verdict shows that. If I were Dr. Tobias, I would ask for my money back .... Real criminal defense attorneys, lawyers who try cases every day, don't do that. They don't throw mud .... Obviously it backfired in their face.

Mezibov further alleges that later that month, on October 21, 2001, Allen appeared on a local television show known as "Hot Seat" and made the following comments:

[Mr. Mezibov] wanted to make it a show trial where he could attack me, he could attack Dr. Parrott, but frankly it blew up in his face and now his client, because of [Mezibov's] conduct, faces two years in prison and the loss of his medical license. You know, in consumer law we have a saying let the buyer beware. I think in law, you ought to have a saying, let the client beware .... Had Dr. Tobias approached us early on about cooperating with the prosecution and working for us in a conviction of Mr. Condon, that's something that in all likelihood we would have entertained. But, his lawyer, Marc Mezibov, chose not to do that. And it makes you wonder, here's a man that now is going to lose his medical license, faces two years in jail, who may very well have been able to work with us and escape prosecution. It makes you wonder about the tactics of defense counsel and their intentions quite frankly .... And when my ethics are questioned and when I'm called unethical, you're gonna get it back and you're gonna get it back with both barrels because I have to. I can't permit that to happen. Real defense lawyers, the Scott Croswells of the world, the Merle Shiverdeckers, they try cases on the facts of the case. They try cases from the testimony that comes from the witness stand and the law that is given from the judge. I think Mr. Mezibov, what he wanted to do, he wanted his show trial. He wanted to be able to attack me, he wanted to be able to attack Dr. Parrott, and he wanted to be able to attack the Republican party .... I have to say had this matter been handled in the normal fashion by a defense lawyer who was interested in his client's best interest rather than having a political show trial, Dr. Tobias very well could have fared a lot better than he did.

In July 2002, Mezibov filed this 42 U.S.C. § 1983 action, alleging that Allen made defamatory comments under color of state law, in an effort to "retaliate against Mezibov for filing motions and raising legitimate defenses in his capacity as defense counsel in the criminal proceedings initiated and prosecuted by Defendant Allen... against Dr. Tobias." In other words, Mezibov claims he was being retaliated against for "exercising his First Amendment right to protect his client's Sixth Amendment and other constitutional rights." Mezibov further alleges that as a result of Allen's comments he "has suffered damage to his professional reputation and emotional anguish and distress entitling him to compensation."

The district court dismissed Mezibov's complaint pursuant to fed. R. Civ. P. 12(b)(6), holding that in filing motions and vigorously defending his client in court, Mezibov was not engaged in a constitutionally protected activity. The district court noted that although Mezibov claims his activities are protected under the First Amendment, they are simply discrete functions of the practice of law, which is not a privilege or immunity protected by the Constitution. Since Mezibov failed to allege that he was engaged in a constitutionally protected activity, the court reasoned that he did not properly state a claim for relief under 42 U.S.C. § 1983, and granted Allen's motion to dismiss. This appeal followed.

ANALYSIS

I. Standard of Review

We review de novo the grant or denial of a motion to dismiss under fed. R. Civ. P. 12(b)(6). Barrett v. Harrington, 130 F.3d 246, 251 (6th Cir.1997). To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory. Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.1988). Nonetheless, conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss. Jackson v. Heh, 215 F.3d 1326 (Table), 2000 WL 761807 at *2 (6th Cir.2000) (citing Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir.1995)).

II. Retaliation Under 42 U.S.C. § 1983

To survive a motion to dismiss a claim under 42 U.S.C. § 1983, the plaintiff must properly allege two elements: (1) the defendant was acting under color of state law, and (2) the offending conduct deprived the plaintiff of rights secured under federal law. Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir.1998). As to the first element, by alleging that Allen, in his role as prosecutor, made defamatory statements to the media concerning a trial that his office prosecuted, Mezibov has sufficiently alleged that Allen was acting under color of state law for purposes of 42 U.S.C. § 1983. See id. at 677-78 (holding that a county sheriff acted under color of state law when he issued press releases concerning matters of official business in which he was involved).

With regard to the second element of a § 1983 claim, when the alleged violation of federal law is that a government official retaliated against a plaintiff for exercising his constitutional rights, as in this case, the plaintiff must ultimately prove three sub-elements: (1) the plaintiff engaged in constitutionally protected conduct; (2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) the adverse action was motivated at least in part by the plaintiff's protected conduct. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir.1999) (en banc). The district court dismissed Mezibov's claim under the first of these sub-elements by determining that his filing motions and defending his client in court were not activities protected under the First Amendment. We agree.

A. Protected Interest

Whether an attorney can claim First Amendment protection on his own behalf for his filing motions and making courtroom statements on behalf of his client is a question of first impression in this circuit. While the Supreme Court has not squarely addressed this question, it has noted, in dicta, that "[i]t is unquestionable that in the courtroom itself, during a judicial proceeding, whatever right to `free speech' an attorney has is extremely circumscribed." Gentile v. State Bar of Nevada, 501 U.S. 1030, 1071, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991). Furthermore, it appears that no circuit court has ever actually granted an attorney relief under the First Amendment for this narrow category of speech.

It is not surprising that courts have thus far been reluctant to allow the First Amendment to intrude into the courtroom. At first blush, the courtroom seems like the quintessential arena for public debate, but upon closer analysis, it is clear this is not, and never has been, an arena for free debate. Zal v. Steppe, 968 F.2d 924, 932 (9th Cir.1992) (Trott, J., concurring); see Berner v. Delahanty, 129 F.3d 20, 26 (1st Cir.1997) (characterizing the courtroom as a nonpublic forum for purposes of First Amendment analysis). An attorney's speech in court and in motion...