Peffer v. Thompson, 102218 FED6, 18-1192

Docket Nº:18-1192
Opinion Judge:LARSEN, CIRCUIT JUDGE.
Party Name:JULIE PEFFER; JESSE PEFFER, Plaintiffs-Appellants, v. TYLER THOMPSON; DAN KING; RICH KOPACH, Defendants-Appellees.
Judge Panel:Before: KEITH, COOK, and LARSEN, Circuit Judges.
Case Date:October 22, 2018
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

JULIE PEFFER; JESSE PEFFER, Plaintiffs-Appellants,

v.

TYLER THOMPSON; DAN KING; RICH KOPACH, Defendants-Appellees.

No. 18-1192

United States Court of Appeals, Sixth Circuit

October 22, 2018

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

Before: KEITH, COOK, and LARSEN, Circuit Judges.

LARSEN, CIRCUIT JUDGE.

Julie and Jesse Peffer filed this action pursuant to 42 U.S.C. § 1983 against Tyler Thompson, former Osceola County prosecutor, Dan King, a Michigan State Police officer, and Rich Kopach, an Osceola County deputy sheriff. The Peffers alleged claims of First Amendment retaliation and false light invasion of privacy. The district court dismissed the case for failure to state a claim upon which relief could be granted. We AFFIRM.

I.

The factual allegations in the Peffers' complaint are insufficient to allow us to piece together the events leading up to the filing of this § 1983 claim. Information gleaned from subsequent motions offers some assistance. In June 2012, Jesse was charged in Mecosta County, Michigan, with possessing marijuana with intent to deliver and conspiracy to possess marijuana with intent to deliver. Then, in early 2014, he was charged in Osceola County, Michigan, with unlawful possession of marijuana with intent to deliver, manufacturing marijuana, and maintaining a drug house. To resolve the charges, Jesse apparently pleaded nolo contendere to false pretenses in each county. He was sentenced to two days in jail and given no probation. Julie was apparently charged with conspiracy to deliver marijuana in late 2012. According to the Peffers, Julie "negotiated a complete dismissal of the criminal charges against her in exchange for signing a consent judgment for the civil forfeiture" of money. The Peffers contend that their marijuana-related activities comported with the Michigan Medical Marihuana Act, Mich. Comp. Laws § 333.26421 et seq., although we note that no legal determination was made to that effect.

In June 2014, Thompson, allegedly with the assistance of King and Kopach, filed two affidavits with the Osceola County Register of Deeds for properties allegedly owned by the Peffers; those affidavits stated: Affiant is aware that facts, conditions, and/or events that are contained in search warrants and police reports . . . that may lead to a complaint for forfeiture of real property . . . pursuant to MCL 333.7521 et seq. MCL 333.7521, et seq. allows for the seizure and forfeiture of real property obtained as a result of, or used, or intended to be used to facilitate a violation of the drug laws of Michigan.

The Peffers contend that the defendants filed these affidavits in retaliation for their agreeing to plea deals that resulted in a lenient sentence for Jesse and dismissal of the charges against Julie.

The Peffers sued defendants on June 23, 2017, raising two claims of First Amendment retaliation under § 1983 and a claim of false light invasion of privacy under Michigan law. The defendants filed motions to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Peffers responded to the motions and subsequently moved to file an amended complaint. The district court granted the defendants' motions to dismiss and denied the Peffers' motion to amend their complaint. The court determined that the Peffers had failed to adequately plead that they were engaged in an activity protected by the First Amendment, a necessary showing in a First Amendment retaliation claim. The court also determined that the Peffers failed to state a claim for false light invasion of privacy. The Peffers timely appealed.

II.

We review de novo a district court's ruling on a Rule 12(b)(6) motion to dismiss. Kaminski v. Coulter, 865 F.3d 339, 344 (6th Cir. 2017). In reviewing a 12(b)(6) motion, the court must view the complaint in the light most favorable to the plaintiff, accepting as true all allegations in the complaint and drawing all reasonable inferences in the plaintiff's favor. Id. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff must plead "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citation omitted). The plaintiff must provide "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citation omitted).

First Amendment Retaliation.

The Peffers first argue that the district court erred by dismissing their First Amendment retaliation claim. "For a retaliation claim to survive a motion to dismiss, '[a] § 1983 plaintiff must plead factual allegations sufficient to establish that (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.'" Bright v. Gallia County, 753 F.3d 639, 653 (6th Cir. 2014) (quoting Handy-Clay v. City of Memphis, 695 F.3d 531, 539 (6th Cir. 2012) (quotation omitted) (alteration in original)).

We struggle to identify the First Amendment protected activity in which the Peffers allegedly engaged. Their complaint says that the protected activity was their "participat[ion] in the court proceedings initiated by Defendants and negotiat[ion of] a disposition that did not involve further incarceration or probation...

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