Wysinger v. City of Benton Harbor

• Decision Date: 20 June 1997
• Docket Number: No. 4:96 CV 187.,4:96 CV 187.
• Citation: 968 F.Supp. 349
• Parties: George WYSINGER, Plaintiff, v. CITY OF BENTON HARBOR, A Michigan Governmental Entity; Emma Hull, Individually and in her official capacity as Mayor of the City of Benton Harbor; Ralph Crenshaw; Ricky Hull; Hersey McKenzie; James Turner; Norval Weiss; Steve Wooden; Charles Yarborough, individually and in their official capacities as Commissioners of the City of Benton Harbor; David Walker, individually and in his official capacity as Public Safety Director of the City of Benton Harbor; and Ron Singleton, individually and in his official capacity as Chief of Police of the Benton Harbor Police Department, Defendants.
• Court: U.S. District Court — Western District of Michigan

Page 349

968 F.Supp. 349

George WYSINGER, Plaintiff, v. CITY OF BENTON HARBOR, A Michigan Governmental Entity; Emma Hull, Individually and in her official capacity as Mayor of the City of Benton Harbor; Ralph Crenshaw; Ricky Hull; Hersey McKenzie; James Turner; Norval Weiss; Steve Wooden; Charles Yarborough, individually and in their official capacities as Commissioners of the City of Benton Harbor; David Walker, individually and in his official capacity as Public Safety Director of the City of Benton Harbor; and Ron Singleton, individually and in his official capacity as Chief of Police of the Benton Harbor Police Department, Defendants.

No. 4:96 CV 187.

United States District Court, W.D. Michigan.

June 20, 1997.

Richard D. Stroba, Ford, Kriekard, Domeny & Byrne, Portage, MI, for Plaintiff.

Thomas R. Wurst, Smith, Haughey, Rice & Roegge, Grand Rapids, MI, for Defendants.

OPINION

ENSLEN, Chief Judge.

Plaintiff George Wysinger, a Commissioner of the City of Benton Harbor, brings suit under 42 U.S.C. § 1983 against the City of Benton Harbor and several of its elected and appointed officials, alleging that defendants deprived him of his rights under the First, Fourth, Fifth and Fourteenth Amendments. This matter is before the Court on defendants' motion for summary judgment filed pursuant to Federal Rule of Civil Procedure 56. Upon review, the Court finds that no genuine issues of material facts remain for resolution on plaintiff's federal claims. Consequently, summary judgment is granted in favor of defendants on those claims and plaintiff's complaint is dismissed.

A. BACKGROUND

The undisputed facts are as follows: The City of Benton Harbor periodically conducts public meetings of the Board of City Commissioners, during which time both members of the community and the commissioners raise issues of public concerns for discussion. Pursuant to Article II of the Benton Harbor City Code, the Mayor, as presiding officer over these meetings, is duty-bound to preserve order during these meetings and is the sole individual empowered to decide all questions of order. BENTON HARBOR, MICH., CODE § 2-16(a) & (b). All who participate in City Commission meetings are obliged to adhere to rules of conduct and procedures set out in § 2-19.

In 1994, at one such meeting, Commissioner Wysinger was given the floor by Mayor Emma Hull to ask a staff member a question. After the question was asked and answered, Wysinger began to speak again. The Mayor then addressed Mr. Wysinger by name twice, and stated: "Thank you. You already asked that question." Despite the Mayor's efforts to interject, Mr. Wysinger continued to speak. The Mayor then pounded her gavel and declared Mr. Wysinger "out of order." Mr. Wysinger continued to speak, however. The Mayor again pounded her gavel and again declared Mr. Wysinger "out of order." Again, Mr. Wysinger continued to speak. The Mayor pounded her gavel a third time, declaring Mr. Wysinger "out of order" one last time, and instructed David Walker, the Director of Public Safety, to "get him out of here." Mr. Walker then told Mr. Wysinger he was under arrest and escorted him from the meeting. No prosecution resulted from this initial event.

In 1995, a similar episode occurred. During another such public meeting, the Mayor again recognized Mr. Wysinger and gave him the floor to ask a question of a staff member. A lengthy discussion ensued. After the exchange went on for some time, the Mayor interjected and attempted to regain control of the discussion. Mr. Wysinger then accused the Mayor of only interrupting discussions when he was speaking, although earlier that same night she had interrupted another commissioner on two occasions to return the floor to Mr. Wysinger. Wysinger also asserted that he had questions which he needed resolved before he could vote on this matter. The Mayor responded that she wanted his questions answered, but that he should have attended the committee meetings where these issues were discussed. She then instructed Mr. Wysinger to "Go ahead (inaudible), but make it brief please[.]" Rather than continue with his questions, Mr. Wysinger then stated: "I'm not going to no committee meetings. Anytime you have a vote, you have a question, and I'm asking a damn question. Now, I don't have to ask no damn questions." The following colloquy ensued:

MAYOR HULL: Chief, you hear that?

WYSINGER: So you can ...

MAYOR HULL: Now, don't let me.

WYSINGER: I don't care — I don't care about the chief. The Chief got — his boys got their butts kicked last week.

MAYOR HULL: You out of order.

WYSINGER: Maybe I am out of order.

MAYOR HULL: You out of order.

WYSINGER: Maybe I am.

MAYOR HULL: And you out of order. Now.

WYSINGER: So what? So what?

MAYOR HULL: ... Chief, out of here.

In the moments that followed the Mayor instructed the City Manager to tell the Chief of Police to "Escort him out." Chief Singleton then asked him to leave several times, but Commissioner Wysinger would only ask "why?" and "Am I under arrest?" Finally, when Chief Singleton told him he was under arrest, Wysinger responded "Okay" and left the meeting peaceably. Eventually, plaintiff was tried by a jury and acquitted of the charges brought against him.

On September 17, 1996, plaintiff filed the instant action against the City of Benton Harbor, Mayor Emma Hull, the entire Board of Commissioners of the City of Benton Harbor, Public Safety Director David Walker, and Chief of Police Ron Singleton, alleging that the defendants' actions and, in the case of the other commissioners, their failure to act, violated plaintiff's First, Fourth, Fifth, and Fourteenth Amendment rights, constituted multiple state torts, and violated the Michigan Open Meetings Act.

B. STANDARD

In reviewing a motion for summary judgment, this Court will only consider the narrow question of whether there are "genuine issues as to any material fact and [whether] the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A motion for summary judgment requires that the Court view the "`inferences to be drawn from the underlying facts ... in the light most favorable to the party opposing the motion.'" Matsushita Electric Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962)). The opponent, however, has the burden of showing that a "rational trier of fact [could] find for the non-moving party [or] that there is a `genuine issue for trial.'" Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. "The mere existence of a scintilla of evidence in support of plaintiff's position [however] will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986).

C. ANALYSIS

Plaintiff alleges that, in ejecting him from these two public meetings, defendants violated plaintiff's clearly established constitutional rights to free speech, to be free from governmental retaliation for exercising his free speech rights, and to be free from unreasonable seizures.¹ Plaintiff asserts that the allegations that he was out of order are baseless and that these ejectments were part of a retaliatory pattern of action designed to silence a political opponent.

Defendants counter that they are entitled to summary judgment for several reasons. First, the individual defendants assert that they are entitled to both absolute and qualified immunity on plaintiff's federal claims. Second, defendants argue that, even if they were not entitled to immunity from plaintiff's § 1983 claim, plaintiff has failed to raise a genuine issue of material fact as to the violation of his constitutional rights. Finally, defendants maintain that they are all absolutely immune from plaintiff's state tort claims under Michigan law.

1. Section 1983 Claim

42 U.S.C. § 1983 confers a private federal right of action against any person who, acting under color of state law, deprives an individual of any right, privilege or immunity secured by the Constitution or federal laws. See Burnett v. Grattan, 468 U.S. 42, 44 n. 2, 104 S.Ct. 2924, 2926 n. 2, 82 L.Ed.2d 36 (1984); Stack v. Killian, 96 F.3d 159, 161 (6th Cir.1996). Section 1983 is not, however, a source of substantive rights in itself. Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 811-12, 127 L.Ed.2d 114 (1994). Consequently, to state a claim under this section, "plaintiff must establish: 1) that he was deprived of a right secured by the Constitution or laws of the United States and 2) that he was subjected to or caused to be subjected to this deprivation by a person acting under color of state law." Searcy v. City of Dayton, 38 F.3d 282 (6th Cir.1994) (citing Flagg Bros. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 1732-33, 56 L.Ed.2d 185 (1978)). Presentation of genuine issues of material fact on these elements will not, however, preclude summary judgment if defendants are immune from suit.

a. Absolute Immunity

The doctrine of absolute immunity affords certain public servants protection from suits for money damages arising out of their official acts. Clinton v. Jones, ___ U.S. ___, ___, 117 S.Ct. 1636, 1643 (1997). In cases involving state prosecutors, legislators, and judges the Supreme Court has repeatedly noted that: "immunity serves the public interest in enabling such officials to perform their designated functions effectively without fear that a particular decision may give rise to personal liability." Id. In order to effectuate that goal, courts are instructed to review the question of immunity early in the proceeding.

While the Supreme Court has not yet stated whether absolute immunity extends to local legislative officials, it is poised to render a decision which could alter the legal landscape in this area. On June 9, 1997, the Court issued an order...