UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

MARSHA BINELLI, 

Plaintiff, 

Case No. 09-10385

v. Hon. Lawrence P. Zatkoff 

CHARTER TOWNSHIP OF FLINT and

KARYN MILLER, 

Defendants. 

 /

OPINION AND ORDER

AT A SESSION of said Court, held in the United States Courthouse,

in the City of Port Huron, State of Michigan, on September 30, 2010

PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF

UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

This matter is before the Court on Defendants’ motion for summary judgment [dkt 13].

The parties have fully briefed the motion. The Court finds that the facts and legal arguments are

adequately presented in the parties’ papers such that the decision process would not be

significantly aided by oral argument. Therefore, pursuant to E.D. Mich. L.R. 7.1(f)(2), it is

hereby ORDERED that the motion be resolved on the briefs submitted. For the following

reasons, Defendants’ motion [dkt 13] is GRANTED.

II. BACKGROUND

Plaintiff was employed by Defendant Charter Township of Flint (“the Township”) as a

confidential secretary to then-Township Supervisor Douglas Carlton (“Carlton”). Plaintiff

entered this position on May 15, 2006, following Carlton’s victory in a special recall election.
2

Prior to the 2006 election, Carlton was a member of Flint Township’s Board of Trustees, having

been elected to that position in 2004. Plaintiff was previously employed by Carlton at his private

business. In December 2007, Carlton appointed Plaintiff to the position of Deputy Supervisor.

Plaintiff represents that the only difference between this position and her confidential secretary

position was that the new position authorized her to sign purchase orders. 

In an August 2008 primary vote, Defendant Karyn Miller (“Miller”) defeated Carlton,

which both parties agree was a surprise result. Miller ran unopposed in the November general

election, and she assumed office on November 20, 2008. 

 On September 8, 2008, the Township enacted Ordinance No. 512-02, effective

September 21, 2008, which established a means of preventing residential neighborhood blight.

See Pl.’s Mot. Summ. J. Ex. 13. Following adoption of the ordinance, Carlton selected Plaintiff

to fill the newly-created position of ordinance-enforcement officer. To accomplish this,

Plaintiff, along the funds earmarked for Plaintiff’s 2009 salary ($30,000), were transferred from

the Supervisor Department to the Building Department. Plaintiff immediately began performing

the duties of ordinance-enforcement officer, although she continued to act in her other capacities

as well. She was not officially sworn-in to her new position until November 19, 2008—the day

before Miller took over as Township Supervisor. 

On December 1, 2008, Miller informed Plaintiff via letter (1) that her position as Deputy

Supervisor had concluded on November 20, 2008; and (2) that Miller did not require Plaintiff’s

services as a confidential secretary. 

Plaintiff returned to work the following day, at the behest of the Township’s Clerk, Kim

Courts, and Treasurer, Sandy Wright, who both believed that Miller had overstepped her
3

authority in dismissing Plaintiff. Plaintiff continued to work for several days thereafter, until

December 17, 2008, when Miller tendered Plaintiff another letter informing Plaintiff that (1)

Plaintiff had been transferred from the Building Department back to the City Supervisor

Department; and (2) as previously informed, Miller did not require a confidential secretary.

Plaintiff has not worked for the Township since December 17, 2008. 

III. LEGAL STANDARD

Summary judgment is proper where “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and the moving party is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(c); Thompson v. Ashe, 250 F.3d 399, 405 (6th Cir. 2001). The moving

party bears the initial burden of demonstrating the absence of any genuine issue of material fact,

and all inferences should be made in favor of the nonmoving party. Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986). 

To support its motion, the moving party may show “that there is an absence of evidence

to support the nonmoving party’s case.” Id. at 325. Although all inferences must be drawn in

favor of the nonmoving party, this Court bears no obligation to imagine favorable facts where

the nonmoving party has alleged none. The moving party must also set forth facts sufficient to

establish its case: “[T]he mere existence of a scintilla of evidence in support of the plaintiff’s

position will be insufficient [to defeat a motion for summary judgment]; there must be evidence

on which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 252 (1986).
1

Congress has required exhaustion of administrative remedies for § 1983 actions under

specified circumstances, most notably for lawsuits filed by prisoners. See Pasty, 457 U.S. at

508; see also Booth v. Churner, 532 U.S. 731 (2001); 42 U.S.C. § 1997e. Defendants point to no

similar statutory requirement pertaining to political-patronage claims. 

4

IV. ANALYSIS

A. Exhaustion/Finality

Defendants first question is whether Plaintiff’s complaint is ripe for adjudication because

Plaintiff did not exhaust her administrative remedies or receive a final, reviewable decision on

her employment status. Defendants insist that Plaintiff was required to present her claims to the

Township’s personnel committee in writing and obtain a written decision from the committee

before filing this lawsuit. Plaintiff admits that she did not follow these procedures, but she

disputes that such omission prevents this Court from deciding her claim. 

1. Exhaustion

In Patsy v. Board. of Regents of State of Florida., 457 U.S. 496 (1982), the United States

Supreme Court held that Congress did not include a general exhaustion requirement for actions

arising under 42 U.S.C. § 1983.1

 Patsy remains good law on this issue. See Haywood v. Drown,

__ U.S. ___, 129 S. Ct. 2108, 2132 (2009) (Thomas, J., dissenting); Jones v. Bock, 549 U.S. 199,

212 (2007); Wilkinson v. Dotson, 544 U.S. 74, 79 (2005); Felder v. Casey, 487 U.S. 131, 147–48

(1988). 

As Pasty indicates, § 1983 contains no such requirement. See, also, Wal Juice Bar, Inc.

v. City of Oak Grove, Ky., 211 Fed. Appx. 358, 361 (6th Cir. 2006). Therefore, Plaintiff was not

required to exhaust her administrative remedies before filing this action. 
5

2. Finality

Exhaustion and finality are “distinct concepts” but with policies that “often overlap.”

Williamson County Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172,

192–93 (1985). The concepts differ in that: 

[T]he finality requirement is concerned with whether the initial

decisionmaker has arrived at a definitive position on the issue that

inflicts an actual, concrete injury; the exhaustion requirement

generally refers to administrative and judicial procedures by which

an injured party may seek review of an adverse decision and obtain

a remedy if the decision is found to be unlawful or otherwise

inappropriate. 

Id. at 192–93. The Sixth Circuit has construed Williamson County as “articulat[ing] a more

specific formulation of ripeness for cases involving the alleged taking of a property interest.”

See Insomnia, Inc. v. City of Memphis, Tenn., 278 Fed. Appx. 609, 613 (6th Cir. 2008) (denial of

land-use application). See also Bigelow v. Mich. Dep’t of Natural Res., 970 F.2d 154 (6th Cir.

1992) (fishing rights). The current case does not involve such issues, and Defendants have not

demonstrated that the heightened standard applies to First Amendment political-patronage cases.

In cases not involving property interests, ripeness may be established by a showing “(1)

that ‘the claim . . . arises in a concrete factual context and concerns a dispute that is likely to

come to pass’ and (2) that ‘the hardship to [Plaintiff] of withholding court consideration’

outweighs the costs of allowing ‘litigation by hypothetical[.]’” Connection Distrib. Co. v.

Holder, 557 F.3d 321, 343 (6th Cir. 2009) (en banc) (citing Warshak v. United States, 532 F.3d

521 (6th Cir. 2008)). 

 Here, Plaintiff has suffered a real and concrete injury—she was laid off from her

employment—rather than a hypothetical or potential injury, and withholding court consideration
6

would create only further hardship. Accordingly, the Court will entertain the merits of

Plaintiff’s Complaint.

B. Township Governance

Having found the issue ripe for review, the Court finds that a discussion of charter

township governance is beneficial to the understanding of this dispute. Michigan law permits a

township having 2,000 or more residents to incorporate as a “charter township.” Mich. Comp.

Laws § 42.1(2). A charter township is to be governed by an elected Board of Trustees. Id. §

42.5(1). The seven-member Board is to consist of: (1) the Township Supervisor; (2) the

Township Clerk; (3) the Township Treasurer; and (4) four elected Trustees. Id. The Board of

Trustees is vested with “[a]ll legislative authority and powers.” Id. 

The Township Supervisor—whether in a general or charter township—is an elected

official. Mich. Comp. Laws § 41.1b(b). In a charter township, the Board of Trustees may

appoint a superintendent and bestow on that position a number of statutorily-listed

responsibilities. The description of the township supervisor position in the Township’s Policies

and Procedures Manual (“the Manual”) indicates that its Township Supervisor enjoys all of the

statutorily-granted responsibilities for a superintendent, which responsibilities under the statute

include “assum[ing] all the duties and responsibilities as personnel director of all township

employees or delegat[ing] such duties to some other officer or employee.” See Mich. Comp.

Laws § 42.10(n). 

Considering this background, the Court will next address the parties’ responses to the

additional briefing pertaining to specific issues of township governance. 
7

1. Creation of the Ordinance-Enforcement Officer Position

The parties are in agreement that the Board is responsible for the creation of new

employment positions. They disagree, however, on whether the Board officially created the

ordinance-enforcement position to which Plaintiff was purportedly transferred by Carlton.

Defendants cite the fact that the minutes from the Board’s meetings during that time

period do not indicate that a motion to establish the ordinance-enforcement officer position was

ever made or considered. Defendants also aver that the Board only speaks through its minutes,

and that, any evidence to the contrary is parol evidence and is not properly considered. 

Plaintiff does not dispute this, but rather contends that the position was created when the

Board approved the Township’s budget for the 2009 fiscal year at its October 20, 2008, meeting.

Plaintiff suggests that the position was approved by the Board because it was budgeted for in the

2009 budget, and the Board adopted that budget. Plaintiff also notes that the proposed budget

listed Plaintiff as the person occupying the position. 

2. Township Supervisor’s Authority to Transfer Employees

Another issue of importance is the Township Supervisor’s authority to transfer

employees, and this power, or lack of power, concerns both Carlton’s transfer of Plaintiff from

the position of confidential secretary to ordinance-enforcement officer and Miller’s transfer of

Plaintiff back to a confidential secretary position. 

Neither party is able to identify an explicit affirmation or prohibition on the authority of

the Township Supervisor to transfer an employee from one position to another. Plaintiff avers

that the power to transfer employees falls within the Supervisor’s role as “personnel director”
8

under Mich. Comp. Laws § 42.10(n). Defendant counters that because no specific transfer

authority has been granted to the Township Supervisor, that position enjoys no such power. 

3. Township Supervisor’s Authority to Terminate Employees 

The parties also addressed the Township Supervisor’s authority to terminate employees

in their briefing. The parties generally agree that the decision to terminate employees is reserved

to the Board. However, Defendants maintain that an exception exists for positions that serve at

the pleasure of the Township Supervisor, such as Plaintiff’s former position as confidential

secretary. 

C. Defendant Miller 

1. Qualified Immunity 

Government officials are shielded from liability under the doctrine of qualified immunity

“insofar as their conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982); see also Pierson v. Ray, 386 U.S. 547 (1967). In order to determine whether a defendant

is entitled to qualified immunity, the Court performs a two-step analysis. First, the Court must

question whether the alleged facts “[t]aken in the light most favorable to the party asserting the

injury . . . show [that] the officer’s conduct violated a constitutional right[.]” Saucier v. Katz,

533 U.S. 194, 201 (2001). Second, the Court must decide “whether the right was clearly

established.” Id. To determine that a right is clearly established, “the contours of the right must

be sufficiently clear that a reasonable official would understand that what he is doing violates

that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). The burden of proof is on the

plaintiff to show that the defendant is not entitled to qualified immunity. See Miller v. Admin.
9

Office of Courts, 448 F.3d 887, 894 (6th Cir. 2006). It is within the Court’s discretion to

determine which factor of the analysis to address first. See Pearson v. Callahan, 555 U.S. ___,

129 S. Ct. 808, 821 (2009). In this case, the Court will first determine whether the right was

clearly established. 

a. Clearly Established Law

To overcome an assertion of qualified immunity, Plaintiff must demonstrate that the

constitutional right at issue was clearly established at the time of the alleged deprivation. See,

e.g., Saucier, 533 U.S. at 201. In Anderson v. Creighton, the Supreme Court clarified:

[T]hat the right the official is alleged to have violated must have been “clearly

established” in a more particularized, and hence more relevant, sense: The

contours of the right must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right. This is not to say that an

official action is protected by qualified immunity unless the very action in

question has previously been held unlawful; but it is to say that in the light of

pre-existing law the unlawfulness must be apparent.

483 U.S. at 640 (citation omitted)(emphasis added). Thus, while it must be clear to the

reasonable official that such acts would violate the Constitution, it is irrelevant what the

individual official actually believed about the legality of his or her action. Harlow v. Fitzgerald,

457 U.S. 800, 818-19 (1982); Barton v. Norrod, 106 F.3d 1289, 93 (6th Cir. 1997) (“[W]hether

an official is entitled to qualified immunity focuses on the objective reasonableness of the

official’s action.”); Humphrey v. Mabry, 482 F.3d 840, 847 (6th Cir. 2007) (“A right is ‘clearly

established’ for qualified immunity purposes if ‘it would be clear to a reasonable officer that his

conduct was unlawful in the situation he confronted.’”) (citing Saucier, 533 U.S. at 202).
10

Therefore, the inquiry is whether a reasonable official would have understood that

transferring Plaintiff from the position of ordinance-enforcement officer to the confidential

secretary position would violate Plaintiff’s constitutional rights.

Plaintiff contends that the right was clearly established with Supreme Court and Sixth

Circuit precedent. The authority that Plaintiff relies on, however, frames the specific context of

the employee’s termination as one where the political affiliation (Democrat or Republican) was

the primary factor for termination. See Back, 537 F.3d at 557 (holding that defendant was not

entitled to qualified immunity because it was clearly established that an employee who performs

functions with no discretion is entitled to First Amendment protection); Rutan, 497 U.S. at 76

(holding plaintiff’s First Amendment rights were violated when his employment application was

set aside because he did not support the Republican Party). Plaintiff has not shown and the

Court does not find that this case has a similar factual context to Plaintiff’s cited authority. See

Saucier, 533 U.S. at 201-02. (The inquiry “must be undertaken in light of the specific context of

the case, not as a broad general proposition”).

The Court finds, in light of pre-existing law, it would not be clear to a reasonable official

in Miller’s position that her transfer of Plaintiff back to the Supervisor Department from the

Building Department would violate Plaintiff’s constitutional rights. The Manual provides that

the Township Supervisor enjoys all of the statutorily-granted responsibilities under Michigan

law. Mich. Comp. Laws § 42.10(n), which specifies the duties and functions that can be

delegated by the township board to the Township Supervisor, provides the person in that role is

“[t]o assume all the duties and responsibilities as personnel director of all township employees. .
2

Having found that the right is not clearly established, the Court does not need to proceed

in its Saucier analysis to step two and decide whether there was a constitutional violation. 

Pearson, 129 S.Ct. at 818 (“[T]he district courts and the court of appeals should be permitted to

11

. .” M.C.L. 42.10(n) (emphasis added). Thus, the Township Supervisor enjoys control over all

township employees when acting as a personnel director. 

In addition, a reasonable official would have logically understood that, since the prior

Township Supervisor had the power to transfer Plaintiff from the confidential secretary position

to the ordinance-enforcement officer position, the new Township Supervisor would have the

power to do the reverse. The fact that Plaintiff represents that her initial transfer by Carlton from

confidential secretary to ordinance-enforcement officer was within the Township Supervisor’s

power as a personnel director only underscores that a reasonable official in Miller’s position

would not understand that transferring Plaintiff back to the Supervisor Department was

impermissible.

Accordingly, for the foregoing reasons, the Court concludes that Plaintiff has failed to

show she had a clearly established constitutional right not to be transferred from her ordinanceenforcement officer position back to her confidential secretary position. See Barrett v.

Steubenville City Sch., 388 F.3d 967, 970 (6th Cir. 2004) (indicating the plaintiff bears the

burden to show the right is clearly established). Thus, even if Plaintiff had a constitutional right

not to be transferred back to the Supervisor Department, the Court finds that it was a right that a

reasonable official in Miller’s position would not have believed violated Plaintiff’s constitutional

right. See Pray v. Sandusky, 49 F.3d 1154, 1158 (6th Cir. 1995) (quoting Anderson, 483 U.S. at

640).

Therefore, the Court finds that Miller is entitled to qualified immunity for her actions.2
exercise their sound discretion in deciding which of the two prongs of the qualified immunity

analysis should be addressed first.”). 

12

D. Municipal Liability

A municipality can be liable for constitutional violations under § 1983 pursuant to a

policy, custom, or widespread practice connected to the municipality. See Monell v. Dep’t of

Soc. Servs. of City of New York, 436 U.S. 658, 692 (1978); Alkire v. Irving, 330 F.3d 802, 810-11

(6th Cir. 2003); O’Brien v. City of Grand Rapids, 23 F.3d 990, 1004 (6th Cir. 1994); City of St.

Louis v. Praprotink, 485 U.S. 112, 127 (1988) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144,

167–68 (1970) (a municipality may be subject to liability if the plaintiff can show “the existence

of a widespread practice that . . . is ‘so permanent and well settled as to constitute a custom or

usage with the force of law.’”)). Here, Plaintiff has not identified a policy, custom, or

widespread practice implicating the Township’s employment practices such that liability could

exist pursuant to Monell or its progeny. 

However, “[i]n appropriate circumstances, a single act may rise to the level of

policy or custom. With regard to policy, a single act can constitute municipal policy ‘where the

decisionmaker possesses final authority to establish municipal policy with respect to the action

ordered.’” Pusey v. City of Youngstown, 11 F.3d 652, 659 (6th Cir. 1993) (quoting Pembaur v.

City of Cincinnati, 475 U.S. 469, 481 (1986)). “‘Official policy’ often refers to formal rules or

understandings—often but not always committed to writing—that are intended to, and do,

establish fixed plans of action to be followed under similar circumstances consistently and over

time.” Pembaur, 475 U.S. at 480-81. Before liability of the municipality can attach, a plaintiff
13

also must demonstrate a “causal link between the municipal action and the deprivation of federal

rights.” Bd. of County Comm’rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 405 (1997). 

Here, even if the Township Supervisor is the final decision-maker with respect to

personnel matters, it does not necessarily follow that the Township Supervisor possesses final

authority to establish municipal policy with respect to personnel matters. See Cope v. Heltsley,

No. 98-5253, 1999 U.S. App. LEXIS 7829, at *3-4 (6th Cir. April 16, 1999) (stating that while

“Ms. Heltsley was unquestionably the final decisionmaker with respect to hiring matters . . . [i]t

does not necessarily follow, however, that Ms. Heltsley possessed final authority to establish

county policy with respect to hiring matters”). See also Pembaur, 475 U.S. at 483 n. 12 (“[T]he

County Sheriff may have discretion to hire and fire employees without also being the county

official responsible for establishing county employment policy.”). This is especially true where,

as in this case, there is no evidence that (1) the Township Supervisor is responsible for

establishing municipal policy, (2) the Township Supervisor in fact established a municipal

employment policy when transferring or terminating Plaintiff, or (3) a preexisting municipal

policy precluded the Township Supervisor’s actions. See Cope v. Heltsley, 1999 U.S. App.

LEXIS 7829, at *4-5 (finding no municipal liability where there was no evidence that (1) the

defendant was responsible for establishing county employment policy, (2) the defendant

established any employment policy, or (3) that a preexisting policy precluded the defendant’s

actions). Under these circumstances, the Court finds that the Township Supervisor’s actions

respecting Plaintiff do not rise to the level of policy or custom such that municipal liability

exists.
14

V. CONCLUSION 

Accordingly, and for the above reasons, it is HEREBY ORDERED that Defendants’

motion for summary judgment [dkt 13] is GRANTED. The claims against Defendants are

DISMISSED WITH PREJUDICE. 

IT IS SO ORDERED. 

S/Lawrence P. Zatkoff 

LAWRENCE P. ZATKOFF

UNITED STATES DISTRICT JUDGE

Dated: September 30, 2010

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of this Order was served upon the attorneys

of record by electronic or U.S. mail on September 30, 2010.

S/Marie E. Verlinde 

Case Manager

(810) 984-3290