NOT RECOMMENDED FOR PUBLICATION File Name: 20a0092n.06
Case No. 19

- 3462
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

WILLIAM SPITHALER, dba Gustavus Firewoods and Hardwoods, LLC; BETH SPITHALER, dba Yoder Smoking Woods,
Plaintiffs

- Appellants ,

v. RANDY SMITH, in his individual capacity and in his official capacity as the Trumbull County Engineer; TRUMBULL COUNTY, OHIO,
Defen dants

- Appellees

. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

BEFORE: SUHRHEINRICH , DONALD , and MURPHY , Circuit Judges.
MURPHY , Circuit Judge. William and Beth Spithaler believe that Randy Smith, the Trumbull County Engineer, denied their applications for hauling permits in retaliation for Mr. Spithaler’s public

- record s requests. But , according to t he district court , t he Spithalers lacked enough evidence th at the permit denials were motivated by Smith’s disdain for their requests for information

. So t he court granted summary judgment to Smith and Trumbull County on the Spithalers ’ First Amendment retaliation claim

. Seein g no error, w e affirm. The Spithaler s , a married couple, operate separate businesses out of their home on Davis

Peck Road in Trumbull County , Ohio. Mr. Spithaler runs a logging business named GustavusNo. 19

- 3462, Spithaler, et al. v. Smith, et al.

2

Firewoods and Hardwoods, LLC. Ms. Spithaler runs a business named Yoder Smoking Woods that sells leftover wood from the logging business to restaurants and individuals for their use in cooking and smoking. The Spithalers transport their products on Trumbull County roads

. To manage the wear and tear from overweight vehicles , t he State of Ohio has direct ed local authorities to issue permits for heavy hauling on roads within their jurisdiction s . See Ohio Rev

. Code § 4513.34(A)(1). In 2017, Randy Smith ’s staff revamped Trumb ull C ounty’s permitting
program . Th e new program contemplates different permit options based on whether an applicant plans to use a “load

- posted” road : a road that can handle only limited weight s and so has a certain weight limit “posted

. ” Haulers whose operations are based on load

- posted road s m ust apply for a “continuing

- operator permit , ” which costs $500 every 90 days (about $2000 annually). H aulers whose operations are based on other roads need only obtain an “ annual

- supplier permit ,” which

cos ts much less ( $50 annually )

. The c ounty e ngineer’s o ffice evaluates both types of applications , but t he county commissioners must provide the final approval for permits

. On March 9, 2018, William Spithaler visited the county engineer’s office to learn more about this permitting program. A member of Smith’s staff invited Spithaler to look over the office’s permitting

- program records , and Spithaler left with some 400 copied pages. A few days later, he requested the cheaper annual

- supplier permit for his logging business

. At th at time Davis

Peck Road was not load

- posted . B ut the e ngineer’s o ffice had recently received a complaint of

“ large and deep potholes” on the road , and a staff member who had observed its poor conditi on recommend ed that it be load

- posted

. So the office decided to load

- test the road before processing Spithaler’s application

. Smith describes t hat type of testing a s part of the “ discretionary due diligence in reviewing special hauling permit applications.” Shortly a fter th e decision to test the road , Ms. Spithaler also applied for a n annual

- supplier permit for her business.No. 19

- 3462, Spithaler, et al. v. Smith, et al.

3

T he county engineer’s off ice hired a private engineering firm to evaluate Davis

- Peck Road

. The parties agree that this private firm undertook objective testing consistent with accepted engineering standards . It concluded that Davis

- Peck Road had a limited load

- bearing capacity and that it should be load

- posted wit h a 10

- ton weight limit. That finding forced the Spithalers to consider the pricier continuing

- operator permit

. Rather than apply for that permit , the Spithalers sued Smith and Trumbull County under 42 U.S.C. § 1983. The y allege d , a mong other claims, that Smith and Trumbull County violat ed the First Amendment by initiating the testing on Davis

- Peck Road and denying the cheaper permit s in retaliation for Mr. Spithaler’s public

- record s requests. The district court granted summary judgment to Smith and Trumbull County on all claims

. Spithaler v. Smith , No. 4:18

- cv - 1361, 2019 WL 2076095 , at *6 (N.D. Ohio May 9, 2019). It recognized that the Spithalers’ retaliation claim required them to show that Smith and Trumbull County took adverse actions against them at least in part because of their alle gedly protected activity (the public

- records requests)

. Id. at *5. Yet the Spithalers failed to present any evidence that the testing or permit denials sprang from such a retaliatory motive. Id. Rather , the testing arose from Mr. Spithaler ’s permit app lication , and the permit denials arose from the objective need for a 10

- ton weight limit on Davis

- Peck Road. Id. The Spithalers appeal. We have said many times that plaintiff s asserting First Amendment retaliation claim s must prove three elements to state a prima facie case . Element One: The plaintiff s must show that they have engage d in activity protected by the First Amendment. Element Two: T he plaintiffs must show that a defendant took a sufficiently serious action ag ainst the plaintiff s , one that would deter

a n ordinary person from continuing in the constitutionally protected activity. Element Three: T he plaintiffs must show a causal connectio n between these two elem ents , meaning t hat the defendantNo. 19

- 3462, Spithaler, et al. v. Smith, et al.

4

was motivated to t ake the adverse action in part because of the plaintiff s ’ protected activity. See Meadows v. Enyeart , 627 F. App’x 496 , 502 (6th Cir. 2015); Holzemer v. City of Memphis , 621 F.3d 512, 52 0 (6th Cir. 2010) ; Thaddeus

- X v. Blatter , 175 F.3d 378, 394 (6th Cir. 1999) (en banc).
Here , the Spithalers argue that the First Amendment protected Mr. Spithaler’s request s for public records. They argue that Smith’s decision s to load

- test Davis

- Peck Ro ad and to deny the annual

supplier permits qualify as adverse actions. And they argue that Smith was motivated by Mr. Spithaler’s records requests when deciding to load

- test the r oad and deny the permits

. Before assessing the Spithalers’ claim, w e must begin with some procedural niceties about the § 1983 cause of action. The Spithalers sue d Smith both in his personal capacity and in his official capacit y, and they separately sue d Trumbull County. The different defendants come with different defenses. In his personal capacity, Smith may seek the cover of qualified immunity. See Lane v. Franks , 573 U.S. 228, 243

– 46 (2014). To hold Smith personally liable , the Spithalers would have to show that his alleged actions violated their “clearly established” First Amendment rights

. Reichle v. Howards , 566 U.S. 658, 664 (2012)

. Yet we have said that “neither the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information wit hin the government ’ s control.” Phillips v. DeWine , 841 F.3d 405, 418 (6th Cir. 2016) (quoting Houchins v. KQED, Inc. , 438 U.S. 1, 15 (1978))

. So this defense would require us to consider a question addressed by few cases: Is it clearly established that t he First Amendment protects a citizen’s public

- records request s , even if it does not compel disclosure of the underlying public records ? Cf. DeMartini v. Town of Gulf Stream , 942 F.3d 1277 , 1288

– 89 (11th Cir. 2019). In his official capacity, by contrast, Smith lacks this qualified

- immunity cover. See Lane , 573 U.S. at 246

. That is because a suit against Smith in his official capacity “ is, in all respectsNo. 19

- 3462, Spithaler, et al. v. Smith, et al.

5

other than name, to be treated as a suit against the entity

. ” Kentucky v. Graham , 473 U.S. 159, 166 (1985). So the Spithalers ’ official

- capacity claim against Smith is no different than the ir claim against Trumbull County. Id. at 167 n.14

. T his claim trigger s a different defense. Monell v. Dep artment of Social Services , 436 U.S. 658 (1978) , holds t hat § 1983 does no t make municipalities automatically accountable for an employee ’ s unconstitutional action

. I d. at 690

– 91. Rather, the employee’s action must result from some municipal “policy or custom.” Bible Believers v. Wayne County , 805 F.3d 228, 260 (6th Cir. 2018) (en banc). An employee’s “ single unconstitutional act ” may meet th at test , but only if it is “ taken by an authorized decisionmaker ” of the municipality. Id

. This defense, then, would require us to consider a different question: Does Smith qualify as an “ authorized decisionmaker ” to trigger liability for Trumbull County under Monell even though the county commissioners ha ve the final say on permitting decisi on s ? C f. Adkins v. Bd. of Educ. of Magoffin Cty. , 982 F.2d 952, 95 9 (6th Cir. 1993). Rather than confront these defenses, we think it easiest to resolve this case on the merits of the Spithalers’ First Amendment retaliation claim

— specifically, the claim’s causation element

. To create a genuine issue of material fact on causation, a plaintiff “must point to specific, nonconclusory allegations reasonably linking ” the plaintiff’ s protected activity to the adverse action. Stevens v. Thetford T

o w nshi p , 475 F. App’x 556, 560 (6th Cir. 2012) (quoting Vereecke v. Huron Valley Sch. Dist., 609 F.3d 392, 400 (6th Cir.2010) (quotation marks omitted)

. To establish a prima facie case, the plaintiff must present enough evidence to show that the protected activit y was “a substantial or motivating factor” in the adverse action. Vereecke , 609 F.3d at 400

. W e have said that a “‘ motivating factor ’ is essentially but

- for cause

— ‘ without which the action being challenged simply would not have been taken. ’” Leonard v. Robinson , 477 F.3d 347, 355 (6th Cir. 2007) (quoting Greene v. Barber , 310 F.3d 889, 89 7 (6th Cir. 2002) ). That language sounds likeNo. 19

- 3462, Spithaler, et al. v. Smith, et al.

6

the plaintiff bears the burden of showing but

- for caus ation as part of the prima facie case

. But we have also said that, once the plaintiff shows that the protected activity was a motivating factor, the burden shifts to the defendant to prove that the defendant would have taken the same action anyway , even absent th e protected activity. Sensabaug h v. Halliburton , 937 F.3d 621, 628 (6th Cir. 2019)

. That language sounds like the defendant bears the burden of showing the absence of but

for caus ation

. Who then bears the burden of proving but

- for causation? We need not resolve this issue now. (For the Supreme Court’s statements on the issue, see Nieves v. Bartlett , 139 S. Ct. 1715, 1722

– 23 (2019); Lozman v. City of Riviera Beach , 138 S. Ct. 1945, 1952 (2018); Hartman
v. Moore , 547 U.S. 250, 260 (2006); Mt. Healthy City Sch. Dist. Bd. of Ed uc . v. Doy le , 429 U.S. 274, 283

– 84 (1977)

. ) No matter who must prove but

- for causation, the Spithalers have not even presented enough evidence to show that Mr. Spithaler’s public

- records requests in any way motivated Smith ’s decisions to load

- test Davis

- Peck Road or to deny their permits. And t hat failure of proof against Smith likewise dooms the Spithalers’ claim against Trumbull County because the y rely only on Smith ’s actions to hold t he county liable. To begin with , t he Spithale rs do not provide any evidence suggesting that Smith was even involved in the decision making process for their applications

. A s the district court noted, they presented “scant evidence” and “conducted no depositions

. ” Spithaler , 2019 WL 2076095 , at *2.
T hey thus chose not to question Smith about his role. T he y also conced ed that they do “not know what, if any, personal involvement [Smith] had in connection with [their] applications for special hauling permits.” T hey corresponded with others i n the county engineer’ s office w hen discussing their applications. For his part, Smith added that other staff members were the “point people” for the permitting program.No. 19

- 3462, Spithaler, et al. v. Smith, et al.

7

In addition, the Spithalers identify no evidence suggesting that anyone in the of fice sought
to retaliate against Mr. Spithaler for his record s requests. A staff member instead recommend ed load

- post ing Davis

- Peck Road based on his knowledge of the road’s poor condition

. T here was nothing unusual about th at type of recommendation. Smith says that his office typically give s “at least some consideration to whether the road should be load

- posted” whe n ever a party applies for

a hauling permit. H e also identifies load

- testing t ha t occurred on a different road as a resu lt of a different application. Not only that, t he Spithalers concede d that the private engineering firm’s
test ing comported with accepted engineering standards

. So objective evidence vindicate s the staff member’s belief that Davis

- Peck Road should , in fa ct, be load

- posted. Unlike in other cases, moreover , the Spithalers do not identify any similarly situated parties who were able to obtain an annual

- supplier permit for a road that needed to be load

- posted

. Cf. Arnett v. Myers , 281 F.3d 552, 561

– 62 (6th Cir. 2002). For that matter, they do not identify any other permit applicants at all. So Smith’s statement that the office routinely considers whether to load

- post a road when ever it receives a permit application stands unrebutted. The Spithalers make two arguments in response, neither of which create s a jury question

on causation

. T hey point to the “temporal proximity” between when they made their public

- records requests (March 9) and when the office decided to load

- test Davis

- Peck Road (by March 22)

. But “[s] ubstantial case law from this circuit cautions about the permissibility of drawing an inference of causation from temporal proximity alone .” Vereecke , 609 F.3d at 400 ; Sensabaugh , 937 F.3d at 630. And the close timing between the records r equest s and the load

- testing decision is explain ed by an intervening event : Spithaler appl ied for a permit

. Unable to rely on temporal proximity alone , the Spithalers cite a letter that an attorney in the county engineer’s office wrote to the executive director of the Ohio Forestry Association. InNo. 19

- 3462, Spithaler, et al. v. Smith, et al.

8

th e letter, the Spithalers claim, the attorney states that Smith was displeased with Mr. Spithaler’s public

- records request s. We agree with the district court th at the Spithalers take th is letter “out of context.” Spithaler , 2019 WL 2076095, at *5. The attorney did not indicate that the records requests were troubling ; he indicated that Mr. Spithaler’s “harassment” of Smith w as troubling. Id. The letter, for example, cited an incident from 2017 in which Smith called the police on Spithaler because of a “verbal confrontation.” All told, the temporal proximity and this letter, “ taken together, ” do not permit a reasonable jur y to conclude that Mr. Spithaler’s records requests in any way motivated the deci sions to load

test Davis

- Peck Road or to deny the Spithalers’ permit applications

. Vereecke , 609 F.3d at 403.

* * * Apart from their First Amendment claim, the Spithale rs challenge the district court’s order imposing $1,791.36 in sanctions for their failure to appear at the ir scheduled deposition times

. But
t he order impos ing th e s e sanctions came after the Spithalers had filed their notice of appeal from the final judgment. W e lack appellate jurisdiction t o review th at post

- judgment order because the Spithalers did not file a separate notice of appeal from it

. See EEOC v. Wal

- Mart Stores, Inc. , 187 F.3d 1241, 1249

– 5 0 (10th Cir. 1999); Culinary & Serv

. Emps. Union, Local 555 v. Hawaii Emp

. Benefit Adm i n. , 688 F.2d 1228, 1232 (9th Cir. 1982); Shaw v. Merritt

- Chapman & Scott Corp. , 554 F.2d 786, 789 (6th Cir. 1977) ; cf. Armisted v. State Farm Mut. Auto. Ins. Co. , 675 F.3d 989 , 994 (6th Cir. 2012); 15B Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3915.6 , at 342

– 43 ( 2d ed. 1992 )

. We affirm.