1 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

ROBERT TREVOR-BLAIR 

DAVIS, SR., 

 

 Plaintiff, Civil Action No. 15-CV-12076 

vs. HON. MARK A. GOLDSMITH 

CARLA A. ROBERT and SUZANNE 

T. HALL, 

 

 Defendants. 

_______________________________/ 

OPINION AND ORDER (1) GRANTING IN PART AND DENYING IN PART 

DEFENDANT HALL’S MOTION TO DISMISS (Dkt. 29) and (2) GRANTING IN PART 

AND DENYING IN PART PLAINTIFF’S MOTION FOR LEAVE TO FILE A SECOND 

AMENDED COMPLAINT (Dkt. 41) 

 Plaintiff Robert Trevor-Blair Davis, Sr., brought this lawsuit under 42 U.S.C. § 1983 

against two municipal officials alleging various violations of his constitutional rights. In support 

of his claims against Defendant Suzanne T. Hall, Plaintiff alleges she took several actions 

purportedly in retaliation for Plaintiff’s public activism against her and the public agency on 

whose board she sits, the Wayne County Airport Authority (“WCAA”), which Plaintiff contends 

were in violation of his First Amendment rights. While Plaintiff identifies three discrete actions 

taken by Hall that were allegedly retaliatory and unconstitutional, the Court concludes that two 

of those actions were not taken under color of state law, and therefore cannot state a claim for 

unconstitutional retaliatory behavior. As to the third action, however, Plaintiff has pleaded 

sufficient facts to permit an inference that Hall was acting with indicia of state authority, in 

addition to facts that set forth a plausible claim for relief. Moreover, because the Sixth Circuit 

has addressed the right at stake in Plaintiff’s surviving claim before Hall’s allegedly wrongful 

acts, she is not entitled to qualified immunity. Accordingly, Hall’s motion to dismiss is granted 

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in part and denied in part. As explained below, the Court also grants in part and denies in part 

Plaintiff’s motion for leave to file a second amended complaint. 

I. BACKGROUND 

 Plaintiff is a former elected member of the Highland Park Board of Education, and also a 

self-described “union and community activist,” previously employed as a union staff 

representative with Michigan’s American Federation of State, County and Municipal Employees 

(“AFSCME”) Council 25. First Am. Compl. ¶¶ 14, 19 (Dkt. 21). Hall is, and was at all relevant 

times, a member of the Wayne County Airport Authority Board (“the Board”), and at certain 

times served as chair of the Board. Id. ¶ 16. In 2011, Plaintiff filed a lawsuit against the 

WCAA, the Board, and Hall for violations of Michigan’s Open Meetings Act, in connection with 

the hiring of Turkia Mullin, former CEO for the WCAA. Id. ¶ 106. With the lawsuit garnering 

media attention, Plaintiff gave several media interviews criticizing Hall for her actions in the 

hiring process. Id. ¶¶ 107-108. 

After the filing of that lawsuit, Plaintiff was indicted, in 2012, on various federal charges 

relating to alleged misconduct while Plaintiff was serving on the Highland Park Board of 

Education, as well as for false tax filings. Id. ¶¶ 17-18. Plaintiff acknowledges that his 

indictment was widely publicized. Id. ¶ 20. Notwithstanding the indictment, Plaintiff remained 

employed with AFSCME Council 25. Id. ¶ 19. Indeed, Plaintiff was selected by AFSCME 

Council 25 President Al Garrett to represent the AFSCME at a June 2012 Harvard University 

program entitled “Senior Executives in State and Local Government,” (“the Harvard program”), 

and was also appointed lead negotiator for Wayne County Airport Authority Local 953 (“Local 

953”). Id. ¶¶ 20-21. In September 2014, Plaintiff pleaded guilty to two federal charges, and, 

shortly thereafter, was terminated from his position with AFSCME Council 25. Id. ¶¶ 19, 22. 

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Against this basic background, Plaintiff alleges three discrete instances of unlawful 

retaliation by Hall, mostly in response to Plaintiff’s 2011 lawsuit and his subsequent public 

criticism of Hall. 

First, Plaintiff alleges that Hall succeeded in engineering Plaintiff’s removal from the 

Harvard program. Id. ¶ 121; Pl. Resp. to Def. Hall Mot. at 14 (Dkt. 30). According to the 

complaint, Plaintiff and Hall attended the Harvard program at the same time. First Am. Compl. 

¶ 110. During the first day of the program, Plaintiff introduced himself as a union activist and 

described some of the lawsuits he had filed that were successful at exposing unlawful public 

action or corruption; during that introduction, Plaintiff specifically identified Hall as one such 

state official he had exposed. Id. ¶ 112. During her own introduction, Hall described Plaintiff as 

both a nuisance and a filer of frivolous lawsuits. Id. ¶ 113. Plaintiff further alleges that during a 

group evening outing Hall “declared that she was going to get Plaintiff Davis ‘kicked out’ of the 

Harvard [ ] program.” Id. ¶ 115. The next day, the program director informed Plaintiff that he 

had learned of Plaintiff’s indictment through an unnamed participant. Id. ¶ 117. While Plaintiff 

maintained to the director that the program sponsors and organizers had been aware of the 

indictment prior to Plaintiff’s arrival, the director informed Plaintiff that he would need to leave 

the Harvard program. Id. ¶¶ 117-118. Plaintiff states that he learned of Hall’s involvement in 

this removal by way of a local reporter, who told Plaintiff that “he had received a tip from 

Defendant Hall regarding Plaintiff Davis’[s] departure from the Harvard [ ] program.” Id. ¶ 119. 

A brief story on the same ran thereafter. Id. ¶ 120. Plaintiff avers that he “was caused great 

embarrassment, personal humiliation, impairment of reputation, mental anguish and suffering as 

a result of Defendant Hall’s retaliatory actions.” Id. 

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Second, Plaintiff alleges that Hall “harassed Plaintiff Davis by stating in front of other 

elected and appointed officials attending [a 2014 golf outing in support of the Wayne County 

Sheriff], that Plaintiff Davis owed Defendant Hall $50,000.” Id. ¶ 122; Pl. Resp. to Def. Hall 

Mot. at 14. 

Third, Plaintiff alleges that Hall attempted to have Plaintiff removed as the staff 

representative for Local 953. Pl. Resp.to Def. Hall Mot. at 14; First Am. Compl. ¶¶ 123-126. 

Specifically, Plaintiff contends that Hall approached individual union members in an effort to 

have them request Plaintiff’s removal from the staff representative position. First Am. Compl. 

¶ 124. Plaintiff avers that Hall’s actions “nearly cost Plaintiff Davis his employment with 

AFSCME Council 25,” and that President Garrett convened a meeting specifically to discuss 

whether Plaintiff would be retained in his position. Id. ¶ 125. 

II. STANDARD OF DECISION 

When presented with a motion to dismiss pursuant to Federal Rule of Civil Procedure 

12(b)(6), courts are obliged to construe the complaint in the light most favorable to the plaintiff 

and accept all well-pled factual allegations as true in determining whether the complaint states a 

plausible claim for relief. Albrecht v. Treon, 617 F.3d 890, 893 (6th Cir. 2010). The plaintiff 

must provide the grounds for his entitlement to relief, which necessarily requires more than 

labels and conclusions or a formulaic recitation of the elements that comprise a cause of action. 

Id. Moreover, courts are not bound to accept legal conclusions as true, even when presented as a 

factual allegation. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[O]nly a complaint that states a 

plausible claim for relief survives a motion to dismiss.” Id. at 679. Plausibility, in turn, requires 

a “reasonable inference that the defendant is liable for the misconduct alleged”; “facts that are 

‘merely consistent with’ a defendant’s liability” are insufficient. Id. at 678. 

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In considering a motion to dismiss, courts may rely on the complaint, documents 

incorporated by reference into the complaint and integral to the plaintiff’s claims, documents 

attached as exhibits to the complaint, and matters of public record. Commercial Money Ctr., Inc. 

v. Ill. Union Ins. Co., 508 F.3d 327, 335-336 (6th Cir. 2007). 

III. ANALYSIS

A. State Action 

Section 1983 affords a plaintiff relief from constitutional violations committed by state 

actors. See West v. Atkins, 487 U.S. 42, 48 (1988). Accordingly, a threshold issue is whether 

Hall was acting under color of state law during the three alleged instances of retaliation. 

“The traditional definition of acting under color of state law requires that the defendant in 

a § 1983 action have exercised power ‘possessed by virtue of state law and made possible only 

because the wrongdoer is clothed with the authority of state law.’” Id. at 49 (quoting United 

States v. Classic, 313 U.S. 299, 326 (1941)); see also Waters v. City of Morristown, Tenn., 242 

F.3d 353, 359 (6th Cir. 2001) (state actor’s conduct must “occur[ ] in the course of performing an 

actual or apparent duty of his office, or [ ] the conduct is such that the actor could not have 

behaved as he did without the authority of his office.”). Importantly, however, not every action 

undertaken by a state actor is under color of state law. Waters, 242 F.3d at 359. Rather, the 

official must “intend[ ] to act in an official capacity or to exercise official responsibilities 

pursuant to state law,” or otherwise abuse the official’s state-sanctioned authority. Id. When a 

state official is acting “in the ambit of their personal pursuits,” they are not acting under color of 

state law. Id. (quoting Screws v. United States, 325 U.S. 91, 111 (1945)). Thus, “private 

conduct, outside the course or scope of [a state official’s] duties and unaided by any indicia of 

actual or ostensible state authority, is not conduct occurring under color of state law.” Id.; see 

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also id. (“[T]he challenged conduct [must be] related in some meaningful way either to the 

actor’s governmental status or to the performance of his duties.”). 

As to the first two incidents described by Plaintiff — the removal from the Harvard 

program and the remark at the golf outing — there is no allegation that Hall either (i) acted in an 

official capacity, (ii) exercised official responsibilities, or (iii) otherwise exerted (validly or not) 

her authority as a municipal official. 

The only connection the operative complaint draws between Hall’s participation in the 

Harvard program and her status as a state actor is Hall’s introductory remark that she was a 

member of the Board. First Am. Compl. ¶ 113. However, merely identifying the municipal 

entity on which she served in the course of being introduced at a meeting does not reasonably 

support an inference that Hall was purporting to or intending to act in some official capacity. 

Nor has Plaintiff pleaded any facts tying Hall’s status as a state actor to her alleged 

communication regarding Plaintiff’s indictment to the program director.1 That is, there are no 

facts to suggest Hall attempted to, or did, flex her own state authority to get Plaintiff removed 

from the Harvard program. And given Plaintiff’s own admission that his indictment was widely 

publicized, Hall’s position did not endow her with special information acquired by virtue of her 

office; rather, any participant who might have been interested in Plaintiff’s background could 

 

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 The Court also observes that the complaint does not expressly identify Hall as the individual 

who informed the program director of Plaintiff’s indictment. Rather, the complaint states that a 

local reporter “had received a tip from Defendant Hall regarding Plaintiff Davis’[s] departure 

from the Harvard [ ] program,” and “[i]t was not until Plaintiff Davis was so informed by the 

news reporter that he became aware of Defendant Hall’s involvement in getting him removed 

from the Harvard [ ] program.” First Am. Compl. ¶ 119. This leaves open the possibility that 

Hall may have provided the local reporter with the information regarding Plaintiff’s removal 

from the program, knowledge to which she would have been privy by virtue of her own 

participation in the program, without also being the same individual who brought Plaintiff’s 

indictment to the program director’s attention. However, a fair reading of the complaint, 

construing all facts and inferences in favor of Plaintiff, suggests Hall may have been involved in 

Plaintiff’s removal from the program. 

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have easily uncovered the information and communicated it. See Meadows v. Enyeart, 627 F. 

App’x 496, 501 (6th Cir. 2015) (when “the ‘nature of the act performed’ was ‘functionally 

equivalent to that of any private citizen,’” a public official did not act under color of state law 

(quoting Redding v. St. Eward, 241 F.3d 530, 533 (6th Cir. 2001))). 

Plaintiff attempts to bolster his contention of state action by offering a proposed second 

amended complaint, which lists additional facts connecting Hall’s municipal office to her 

attendance at the Harvard program. See Pl. Mot. for Leave to File at 5-6 (Dkt. 41). Plaintiff’s 

proposed amended complaint avers that (i) Hall was admitted to the Harvard program in her 

official capacities as both an administrative appointee of the Wayne County Sheriff and a 

member of the Board; (ii) Hall’s application to the program listed “her work and purported 

accomplishments as a duly appointed member of the [Board] as a basis to be admitted”; and 

(iii) Hall was admitted to the program because she was then-chair of the Board. Proposed 

Second Am. Compl., Ex. A to Pl. Mot. for Leave to File, ¶¶ 115, 127, 128 (Dkt. 41-1). 

However, even assuming that Hall’s participation in the program was possible only by virtue of 

her county background and/or position, Plaintiff has not pleaded any facts showing that Hall 

exercised, or purported to exercise, official duties, or that she otherwise misused her municipal 

position and/or authority. Therefore, even taking into account the proposed amended pleading, 

there is no indication that Hall was acting under color of state law either at the Harvard program 

or during her alleged conversation with the program director. 

Regarding the 2014 golf outing, Plaintiff has pleaded no facts tying Hall’s attendance at 

or participation in the outing to her municipal position, either in the current operative complaint 

or in the proposed amended complaint. Accordingly, there is no basis to conclude that Hall was 

acting under color of state law during the golf outing. 

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By contrast, the third alleged instance of retaliation permits an inference that Hall may 

have been acting under color of state law. Specifically, reading the complaint in the light most 

favorable to Plaintiff, there are inferences to be made that Hall’s communications to individual 

union members, given her position on the Board, could have been accompanied by some indicia 

of authority such that she was either purporting to act in her official capacity, or that she was 

otherwise aided by her state authority in attempting to convince individual union members to 

replace Plaintiff as staff representative and chief negotiator. Given the power dynamics that may 

come into play during negotiations over a collective bargaining agreement, Hall’s suggestions 

regarding Plaintiff’s continued employment may not have carried any weight but for her position 

on the Board. 

Hall argues that she could not have been acting under color of state law because neither 

she individually nor the Board as a whole had any power or authority to remove, or compel 

AFSCME Council 25 to remove, Plaintiff as staff representative and/or negotiator for Local 953. 

Def. Hall Mot. at 11 (Dkt. 29); Def. Hall Reply at 3 (Dkt. 31). However, state action is made out 

by abuse of position or authority; thus, it is not essential that the official actually have authority 

to commit the challenged act. See West, 487 U.S. at 49-50 (“It is firmly established that a 

defendant in a § 1983 suit acts under color of state law when he abuses the position given to him 

by the State.” (emphasis added)). 

Hall further argues that she did not require her actual or apparent authority to talk with 

individual union members about Plaintiff; rather, any member of the public could have discussed 

Plaintiff’s employment with individual union members. Def. Hall Reply at 3. However, even if 

a private citizen could have taken the same action as that of a state official, if the state official’s 

conduct was aided by indicia of actual or ostensible state authority, state action may be 

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established. See Waters, 242 F.3d at 359-360 (focusing the color-of-state-law inquiry on 

whether a defendant’s official position permitted or played a meaningful role in allowing the 

alleged misconduct to have occurred); Burris v. Thorpe, 166 F. App’x 799, 802-803 (6th Cir. 

2006) (affirming district court’s conclusion that, because there was no evidence that police 

officer used his position to coerce plaintiff into a sexual relationship or to prevent termination of 

the relationship, police officer was not acting under color of state law even if conduct occurred 

while officer was on duty and in uniform). 

While the complaint does not recount the specific context of the alleged conversations, 

including the timing, the specific statements, or the parties, at this early stage of the litigation the 

Court cannot say that Hall’s actions were unaided by indicia of actual or ostensible authority. 

The complaint permits a fair inference that Hall’s position on the Board infused her statements 

concerning Plaintiff’s position with Local 953 with greater weight than those of a private 

individual; indeed, the complaint expressly states that “as a result of Defendant Hall’s actions, 

President Al Garrett had to convene a meeting with the leadership of Local 953 to get their 

feelings with respect to keeping Plaintiff Davis as their staff representative.” First Am. Compl. 

¶ 125. Further discovery is needed on these alleged conversations, which will disclose whether 

the conversations were truly of a private nature, unaided by Hall’s position on the Board, or 

whether she actually flexed some measure of authority in attempting to have Plaintiff removed 

from his position. 

B. Prima Facie Case for First Amendment Retaliation Claim 

Because Plaintiff has plausibly alleged that Hall was acting under color of state law when 

she approached individual union members in an effort to have Plaintiff removed from his 

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position with Local 953, the Court turns to whether this alleged action meets the prima facie 

requirements of a § 1983 First Amendment retaliation claim. 

Actions taken against individuals that do not constitute constitutional violations 

themselves may nonetheless be unconstitutional “if motivated in substantial part by a desire to 

punish an individual for exercise of a constitutional right.” Thaddeus-X v. Blatter, 175 F.3d 378, 

386 (6th Cir. 1999) (en banc). To proceed under a retaliation theory, a plaintiff must 

demonstrate: “(1) the plaintiff engaged in 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) there is a causal connection between elements one and two—that is, the 

adverse action was motivated at least in part by the plaintiff’s protected conduct.” Id. at 394. 

1. Protected Conduct 

Plaintiff alleges that he engaged in protected conduct when he filed a lawsuit against the 

Board and Hall and publicly criticized Hall in the media, as well as when he identified Hall at the 

Harvard program as a public official whose unlawful acts he had exposed. First Am. Compl. 

¶ 126; Pl. Resp. to Def. Hall Mot. at 12. Nearly all of Hall’s opposition on this point is devoted 

to contesting that Plaintiff’s statements on the first day of the Harvard program fall within the 

ambit of the First Amendment. See Def. Hall Mot. at 14-15. However, even assuming that 

Plaintiff’s statements at the Harvard program were not protected conduct, Plaintiff’s other 

alleged actions — filing a lawsuit contending that government officials violated state law and 

criticizing one of those officials in the media — clearly are protected. See Fritz v. Charter Twp. 

of Comstock, 592 F.3d 718, 723 (6th Cir. 2010) (comments in press protected activity); 

Eckerman v. Tenn. Dep’t of Safety, 636 F.3d 202, 208 (6th Cir. 2010) (“The filing of a lawsuit to 

redress grievances is clearly protected activity under the First Amendment.”); Lowery v. 

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Euverard, 497 F.3d 584, 587-588 (6th Cir. 2007) (recognizing that the First Amendment 

encompasses criticism of government officials). Hall does not suggest otherwise. See Def. Hall 

Mot. at 15 n.2 (citing a Sixth Circuit case, Jenkins v. Rock Hill Local Sch. Dist., 513 F.3d 580, 

588 (6th Cir. 2008), for the proposition that, “the right to criticize public officials is clearly 

protected by the First Amendment”). Accordingly, Plaintiff has adequately pleaded this first 

element of a retaliation claim. 

2. Adverse Action 

As discussed above, of the three originally pleaded adverse actions, just one remains — 

Hall’s alleged attempts to get Plaintiff removed from his position with AFSCME Council 25. 

Hall does not address this action directly in her motion.2

 In her reply, however, Hall maintains 

that Plaintiff has shown only that she “said bad things about him . . . to union employees.” Def. 

Hall Reply at 4. In other words, Hall’s actions were limited to attempts to get others (i.e., 

AFSCME Council 25) to take action against Plaintiff; she herself took no adverse action and had 

no authority to compel others to do so. Id. at 4-5. 

But this position misses the point. Hall’s concerted effort to have Plaintiff removed from 

his position with Local 953 is the adverse action against which he complains — not his 

subsequent (and unrelated) termination. Accordingly, her lack of direct authority to bring about 

 

2

 Hall does cursorily note that she could not have “interfer[ed] with collective bargaining 

negotiations with AFSCME,” because the Board is not a third-party to the bargaining 

relationship. Def. Hall Mot. at 11 n.1. The argument seems to draw on the requirement 

applicable in a tortious interference claim that the defendant-agent be acting solely for her own 

interest when she engaged in the challenged conduct, rather than her principal’s. Kuhn v. 

Washtenaw Cnty., 709 F.3d 612, 630-631 (6th Cir. 2013). However, Hall has submitted no 

authority that this requirement applies in a retaliation claim. And, in any case, at this pleading 

stage in the litigation, there is at least an inference that can be drawn from the pleadings that Hall 

attempted to get Plaintiff removed from his position for her own benefit, not her employer’s. 

First Am. Compl. ¶¶ 124-126. 

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that termination (or any other workplace consequence) is not dispositive in light of the actions 

that she did take. 

Causing Plaintiff’s employer to consider terminating his employment is sufficiently 

serious on its own to qualify as “adverse action.” The Sixth Circuit’s decision in Fritz v. Charter 

Township of Comstock illustrates this point in a set of facts similar to those presented here. Like 

our case, Fritz involved a public official who possessed state-sanctioned power that could 

substantially impact a third-party decision maker’s financial interests. While the Fritz plaintiff 

did not plead specific facts showing that the defendant “specifically threatened her business” or 

“attempted to persuade [the plaintiff’s employer] to terminate its contract with [the plaintiff],” 

her complaint alleged that the defendant “communicated his dislike and opposition to [the 

plaintiff’s] speech and commented on his opinion of its effect on her reputation and on the 

reputation” of her employer. Fritz, 592 F.3d at 725. The court went on to hold that the alleged 

statements could constitute adverse action, because the officials wielded the “power to 

substantially affect [the employer’s] ability to do business . . . through their role in enacting 

township ordinances and making zoning decisions, [making] the alleged threats [ ] more 

tangible.” Id. at 726. In our case, Plaintiff explicitly alleges that Hall attempted to convince 

individual union members to terminate their relationship with Plaintiff. First Am. Compl. ¶ 124. 

And Hall, as an adverse bargaining party, was in a position to substantially affect the union’s 

interests. The complaint further alleges that such influence was felt, culminating in a union 

meeting to determine whether Plaintiff would remain in his role as staff representative and chief 

negotiator. See id. ¶ 125. 

Acknowledging the power of persuasion, as Fritz does, makes eminent sense; a person of 

ordinary firmness would likely be deterred from participating in protected activity by the 

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prospect of an influential public official endangering his or her economic livelihood, irrespective 

of whether a third party was necessary to, or even did, pull the proverbial trigger. See Fritz, 592 

F.3d at 726 (“A person of ordinary firmness would be deterred from engaging in protected 

conduct, if as a result, a public official encouraged her employer to terminate the person’s 

contract or to have her change her behavior.”); Harris v. Bornhorst, 513 F.3d 503, 519 (6th Cir. 

2008) (holding that public official’s comments to plaintiff’s prospective employer regarding the 

official’s own opinion as to whether plaintiff was guilty of a crime for which plaintiff’s 

conviction had been reversed would likely deter a person of ordinary firmness from protected 

activity); Paige v. Coyner, 614 F.3d 273, 281 (6th Cir. 2010) (“Losing one’s job and 

accompanying benefits is certainly severe enough to deter a person of ordinary firmness from 

speaking at public meetings.”). 

This is all the more true when the public official in question carries considerable sway 

with the final decision maker or otherwise has the ability to significantly influence the final 

decision maker’s interests. To shield public officials from liability for conduct similar to that 

alleged here simply because it was either a step removed from or failed to fully bring about the 

intended result (e.g., a termination) would ignore the practical reality that even the threat of 

losing one’s livelihood is likely to have a significant chilling effect on protected activity. 

Accordingly, Hall’s lack of legal or technical authority to remove Plaintiff from his position as 

staff representative and/or chief negotiator for Local 953 does not render her conduct any less 

adverse. 

Admittedly, Plaintiff’s complaint is short on specific facts detailing the nature and 

substance of the alleged communications. However, like Fritz, this case is still in the early 

stages of litigation and discovery has yet to commence, let alone be completed. For now, 

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Plaintiff has sufficiently, even if generally, alleged that Hall did attempt to convince the union 

membership to terminate its relationship with Plaintiff. As in Fritz, such actions amount to a 

credible threat to Plaintiff’s employment. See Fritz, 592 F.3d at 725-726. This is sufficient to 

survive a 12(b)(6) motion. Id. 

Hall also challenges Plaintiff’s allegations of “great injury and personal embarrassment 

and humiliation,” First Am. Compl. ¶ 127, as insufficiently personalized and/or concrete to 

establish “adverse action.” Def. Hall Mot. at 17-19. Courts do probe allegations of injury to 

assess whether they are sufficiently particularized to constitute as adverse action. See 

Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 584-585 (6th Cir. 2012); Mezibov v. Allen, 411 

F.3d 712, 722 (6th Cir. 2005); Mattox v. City of Forest Park, 183 F.3d 515, 523 (6th Cir. 1999). 

However, Hall’s reliance on this principle fails to address Plaintiff’s chief alleged injury in the 

form of tangible threats to his employment relationship with Local 953 and/or AFSCME Council 

25. See First Am. Compl. ¶¶ 125-126. As discussed, supra, such a threat may constitute a 

cognizable injury if it would deter an ordinary person from exercising his or her First 

Amendment rights. 

Moreover, this injury, as presently described, is both concrete and personalized. Plaintiff 

has not alleged abstract or inchoate threats to his position with Local 953; rather, he alleges that 

Hall’s actions prompted a meeting to determine Plaintiff’s future with Local 953, causing him 

emotional harm. The fact that Plaintiff was ultimately terminated from his position in 

connection with his pleading guilty to certain federal charges does not diminish or detract from 

the alleged interference that took place at an earlier point in time. Thus, as currently pleaded, 

Hall’s actions amounted to “a threat to the plaintiff’s livelihood that resulted in real, measureable 

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harm.” Strader v. Ky. Dep’t of Fish & Wildlife Res., No. 3:09-62-DCR, 2012 WL 3220732, at 

*3 (E.D. Ky. Aug. 6, 2012) (collecting cases).3 

Finally, Hall argues that as a public figure, Plaintiff is required to tolerate more 

significant actions in response to his exercising his First Amendment rights than would an 

ordinary citizen. Def. Hall Mot. at 20-21; Def. Hall Reply at 6. The short response is that First 

Amendment law is context-specific, and while “the elements of a First Amendment retaliation 

claim remain constant, the underlying concepts that they signify will vary with the setting—

whether activity is ‘protected’ or an action is ‘adverse’ will depend on context.” Thaddeus-X, 

175 F.3d at 388. At this early stage of the litigation, this key variable — the context and 

substance of Hall’s statements to the individual union employees — is missing.4 

It is true that public figures must “have thicker skin than the ordinary citizen when it 

comes to attacks on their views.” Mattox, 183 F.3d at 522. But Plaintiff has alleged more than 

just an attack on his views. Rather, he has alleged a targeted campaign to terminate his 

representation of Local 953, as distinct from mere criticism of his ideas and opinions. While 

Plaintiff, as a self-described union and community activist, may have voluntarily opened himself 

up to a greater degree of the latter, that does not also dictate that he must be required to tolerate 

the former. See id. (distinguishing between “a deliberate attempt to discredit” that played out in 

 

3

 The Court also rejects Hall’s argument that Plaintiff himself has not been deterred from 

engaging in protected conduct, as evidenced by numerous lawsuits filed on his behalf. Def. Hall 

Mot. at 19. The standard is whether a “person of ordinary firmness” would be deterred — not 

whether the plaintiff himself had been deterred. Fritz, 592 F.3d at 728 (“[T]he test is whether a 

person of ordinary firmness would be deterred; actual deterrence on the part of the plaintiff is not 

necessary to state a claim of an adverse action.”). 

 

4

 For the same reasons, Hall’s argument that her own statements in response to Plaintiff’s cannot 

constitute adverse action because they too are protected by the First Amendment is premature. 

Def. Hall Mot. at 21; Def. Hall Reply at 6-7. The Court cannot determine whether Hall’s own 

comments to the individual union employees were protected speech precluding § 1983 liability 

without knowing exactly what it is Hall said. 

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public conversation versus being fired by a government employer for expressing protected 

views). This argument must await a more developed record. 

3. Causal Relationship 

Regarding the last element for a prima facie retaliation claim, Plaintiff must plausibly 

plead that the actions were motivated, at least in part, by Plaintiff’s protected conduct. Notably, 

Hall does not make any argument that Plaintiff has failed to do so. And Plaintiff’s complaint 

specifically alleges that the retaliatory conduct was in response to Plaintiff’s protected activity of 

filing a lawsuit against the Board and his criticism of Hall in the media. First Am. Compl. ¶ 126. 

Accordingly, Plaintiff has sufficiently alleged this last element. 

C. Qualified Immunity 

Being sued in her individual capacity, Hall is entitled to assert qualified immunity. Guest 

v. Leis, 255 F.3d 325, 337 (6th Cir. 2001). Qualified immunity is designed to “protect public 

officials from undue interference with their duties and from potentially disabling threats of 

liability.” Perez v. Oakland Cnty., 466 F.3d 416, 426 (6th Cir. 2006) (quoting Vakilian v. Shaw, 

335 F.3d 509, 516 (6th Cir. 2003)). It protects officials who reasonably thought that their actions 

comported with the rights that are alleged to have been violated. Id. The inquiry is two-step: 

first, did the plaintiff establish violation of a constitutional or statutory right, and, if so, was the 

right violated “clearly established” at the time of the violation. Id. at 426-427. 

As discussed above, Plaintiff has plausibly alleged a claim of unconstitutional retaliation 

in violation of his First Amendment rights. Therefore, at this stage of the litigation, Hall is not 

entitled to qualified immunity on that basis. 

Further, Plaintiff’s right to be free from a public official threatening his private 

employment in retaliation for his exercising his First Amendment rights was clearly established 

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at the time the violation occurred. See id. at 427 (“[P]laintiff must show that the right was 

clearly established ‘in light of the specific context of the case, not as a broad general 

proposition.’” (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001))). Generally, the “clearly 

established” requirement means “that binding authority would have alerted reasonable people in 

[the defendant’s] position that her conduct was unlawful.” Id. at 428. Courts “look principally 

to the law of this circuit and to the Supreme Court.” Id. at 427. This is Plaintiff’s burden to 

bear. Id. 

Plaintiff alleges that he served as staff representative and chief negotiator for Local 953 

from 2012-2014, which appears to have been when the alleged retaliatory incidents occurred. 

See First Am. Compl. ¶ 123. By 2012, several Sixth Circuit decisions had held that a 

government official could not permissibly jeopardize or otherwise threaten a citizen’s 

employment (or even future employment) in retaliation for the citizen exercising his or her First 

Amendment rights. See Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 725-726 (6th Cir. 

2010); Harris v. Bornhorst, 513 F.3d 503, 518-519 (6th Cir. 2008). 

Accordingly, at least on the facts as alleged, the Court cannot now state that Hall is 

entitled to qualified immunity. 

D. Plaintiff’s Motion for Leave to File a Second Amended Complaint 

Following the hearing on this motion, Plaintiff filed a motion for leave to file a second 

amended complaint. See Pl. Mot. for Leave to File. That motion is denied in part and granted in 

part. 

As detailed in his motion, Plaintiff’s proposed second amended complaint attempts to 

plead additional facts tying Hall’s participation in the Harvard program to her status as a state 

actor. See id. at 4-6. Plaintiff also seeks to add an additional First Amendment retaliation claim 

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against Hall in her individual and official capacities as an administrative appointee of the Wayne 

County Sheriff, based on those additional facts. Id. at 5-8. As discussed, supra, however, these 

newly pleaded facts do not support or establish the necessary inference. Because these newest 

allegations do not assist Plaintiff in overcoming Hall’s 12(b)(6) motion, amendment would be 

futile, and the Court denies Plaintiff’s motion as to this particular alleged instance of retaliation 

and as to the additional retaliation claim. See Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 569 

(6th Cir. 2003) (“[L]eave to amend may be denied where the amendment would be futile.”). 

Plaintiff’s proposed second amended complaint also raises an additional allegation 

touching upon Hall’s alleged interference in Plaintiff’s employment with AFSCME Council 25 

and/or Local 953. The amended pleading contends that Plaintiff’s supervisor was directed to 

accompany Plaintiff to the negotiations with the WCAA, and Plaintiff was told “that if 

[Plaintiff’s] presence would prevent Local 953 from getting a contract, that Plaintiff Davis would 

be removed as their staff representative as Defendant Hall requested.” Proposed Second Am. 

Compl. ¶ 137. This proposed change is not mentioned in Plaintiff’s motion; therefore, there is 

no explanation for why the allegation was not included in earlier iterations of Plaintiff’s 

complaint. Nonetheless, the Court perceives no prejudice to Hall in permitting this lone 

amendment. This particular factual allegation lends support to Plaintiff’s claim that Hall’s 

communications to individual union employees had a concrete impact on Plaintiff’s relationship 

with his employer. Accordingly, the Court grants Plaintiff’s motion for leave to amend his 

complaint to add this lone additional allegation. 

 

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IV. CONCLUSION 

 For the reasons discussed above, the Court grants in part and denies in part Hall’s motion 

to dismiss (Dkt. 29), and grants in part and denies in part Plaintiff’s motion for leave to file a 

second amended complaint (Dkt. 41). Plaintiff shall file an amended complaint on or before July 

5, 2016, adding only the factual allegation allowed by this Opinion and Order. 

SO ORDERED. 

Dated: June 29, 2016 s/Mark A. Goldsmith 

Detroit, Michigan MARK A. GOLDSMITH 

 United States District Judge 

 

 

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record and 

any unrepresented parties via the Court's ECF System to their respective email or First Class 

U.S. mail addresses disclosed on the Notice of Electronic Filing on June 29, 2016. 

 s/Karri Sandusky 

 Case Manager 

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