John Hamilton v. City of Romulus , 409 F. App'x 826 ( 2010 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0703n.06
No. 09-2196 FILED
Nov 12, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
JOHN HAMILTON, et al., )
)
Plaintiffs-Appellants, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
CITY OF ROMULUS, et al., ) EASTERN DISTRICT OF MICHIGAN
) SOUTHERN DIVISION
Defendants-Appellees. )
Before: GILMAN and GRIFFIN, Circuit Judges; and ROSE, District Judge*
Rose, District Judge. The underlying matter is a civil rights case under 42 U.S.C. §§ 1983
and 1985(2) with pendant state-law claims. Plaintiffs/Appellants appeal grants of summary
judgment to the Defendants/Appellees. For the reasons indicated below, we AFFIRM the judgment
of the district court.
I. BACKGROUND
A. Factual Background
The Plaintiffs/Appellants are John Hamilton (“Hamilton”) individually and as Trustee of the
John L. Hamilton Retained Annuity Trust, and Hamilton’s sons: John Hamilton, Jr., Jeremy
Hamilton, and Michael Hamilton. Hamilton owns all of the stock of four (4) corporations, which
are also Plaintiffs/Appellants: Jo-Bet, Inc., which operates a bar named Henry the VIII South
*
The Honorable Thomas M. Rose, United States District Judge for the Southern District
of Ohio, sitting by designation.
(“Henry’s South”) in Southgate, Michigan; The Garter Belt, Inc. which operates a bar named Legg’s
Lounge (“Legg’s”) in Van Buren Township (“VBT”); Hamilton’s Henry the VII Lounge, Inc., which
operates a bar named Henry the VII Lounge (“Henry’s”) in Inkster, Michigan; and Hamilton’s
Bogart, Inc., which operates a bar named Bogart’s Joint (“Bogart’s”) in Inkster, Michigan.
The Defendants/Appellees are: VBT, VBT Officer Marc Abdilla (“Abdilla”) and VBT
Director of Planning and Development Bryce Kelley (“Kelley”) (collectively the “VBT
Defendants”); the City of Romulus, Michigan (“Romulus”) and Romulus Officer Michael Ondejko
(“Ondejko”) (collectively the “Romulus Defendants”); and the City of Inkster, Michigan (“Inskter”)
Officers Paul Martin (“Martin”), Kenneth Brown (“Brown”) and Anthony Abdullah (“Abdullah”)
(collectively the “Inkster Defendants”).
The facts that follow are taken from the district court’s orders that are being appealed. The
facts presented in the district court’s orders are taken from the parties’ joint submission of material
facts not in dispute.
1.
The parties, particularly Hamilton and VBT, have a very long and complicated history of
conflict dating back to 1998. At a regular meeting on September 1, 1998, VBT’s Board of Trustees
adopted Resolution 98-34. The effect of this resolution was to suspend the submission or receipt of
projects which would require site plan review, re-zoning, housing development, special approval use
and the like, with certain exceptions, for a period of 182 calendar days running from September 2,
1998, through March 2, 1999 (the “Moratorium”). The purpose of the Moratorium was to assist in
the revision and updating of VBT’s master plan and zoning ordinance. The parties disagree as to
whether the moratorium was directed at Sexually Oriented Businesses (“SOBs”).
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During the Moratorium, VBT conducted a comprehensive review of its Master Plan and
Zoning Ordinance and adopted a series of new SOB ordinances. All of the ordinances became
effective by March 11, 1999.
By letter dated August 29, 2000, Defendant Kelley informed Hamilton that Legg’s was not
in compliance with the new and revised SOB ordinances. Hamilton was directed to come into
compliance within thirty (30) days. VBT claims that Legg’s refused to comply with the SOB
ordinances, particularly the Nudity On Licensed Premises Ordinance because Legg’s dancers
continued to dance virtually naked, had illegal physical contact with patrons and engaged in a host
of other prohibited activities.
Believing that Legg’s was not in compliance with the applicable SOB ordinances, VBT
sought a permanent injunction mandating Legg’s compliance. The permanent injunction was sought
in Wayne County Circuit Court. The case is captioned as Charter Township of Van Buren v. The
Garter Belt, No. 00-036479, and is known by the parties as “Legg’s I.” Legg’s filed a counterclaim
in which it sought to have the VBT SOB ordinances invalidated on constitutional grounds.
VBT prevailed in Legg’s I. Specifically, the trial court determined that the SOB ordinances
in question were without legal or constitutional infirmity and permanently enjoined Legg’s from
violating the ordinance entitled “Nudity On Licensed Premises.” The trial court’s decision was
affirmed on appeal and the Michigan Supreme Court denied Legg’s’ application for leave to appeal.
The United States Supreme Court then denied Legg’s’ petition for writ of certiorari. Thus ended
Legg’s I.
Shortly after Legg’s I was filed, The Garter Belt, Inc. unsuccessfully sought removal of
Legg’s I to federal court. The Garter Belt, Inc. then filed a complaint in federal court in the Eastern
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District of Michigan, Case No. 00-60455 reassigned to Case No. 00-CV-75630. This case became
what is known as Legg’s II. Legg’s II was dismissed on abstention grounds. An appeal was upheld
by this Court. Thus ended Legg’s II.
2.
On May 11, 2000, there was a bomb scare at Henry’s. The Appellants argue that the bomb
scare was executed by Officers Brown and Abdullah, but the person or persons responsible for
executing the bomb scare have never been identified.
At approximately 4:30 p.m. to 5:00 p.m. on May 11, 2000, Elvie Gensoli (“Gensoli”), who
was acting manager of Henry’s at the time, received a call notifying Henry’s that there was a bomb
threat against Henry’s and that the bomb was to explode at approximately 9:00 p.m. that night.
Approximately 20 minutes later, the Inkster Police Department arrived with a “bomb” dog. Brown
advised Gensoli to have the patrons and dancers exit the bar. After a couple of delays while the
“bomb” dog searched, Brown asked Gensoli, who had been asked to wait outside, to enter and give
him her keys to the downstairs offices, which were locked.
Brown was given the keys and went downstairs. He returned in approximately 10 minutes
with a video tape in his hand. Gensoli asked that the tape be returned, but Brown did not do so and
put the tape in his police vehicle. Shortly thereafter, a second “bomb” dog arrived and, in a few
minutes, Brown advised Gensoli that the second dog did not find anything.
Brown reviewed the tape and found nothing regarding the bomb threat. He placed the tape
in his desk drawer for return to Henry’s. However, Officer Martin took and reviewed the tape and
filed a formal complaint with the Michigan Liquor Control Commission (“MLCC”), claiming that
the tape showed violations of MLCC rules.
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Hamilton complained that the tape was taken illegally. He was, however, advised, that the
rules of evidence did not apply in Administrative hearings in the State of Michigan and that the tape
could be used by the MLCC.
The videotape was used as evidence in connection with liquor-license-violation proceedings
against Henry’s before the MLCC. The Michigan Court of Appeals determined that the videotape
was admissible in those proceedings. The Michigan Supreme Court denied leave to appeal, thus
ending the litigation.
3.
On April 21, 2002, a customer named James D. Cable (“Cable”) died while he was being
entertained at Legg’s. Following Cable’s death, Wendy Pomerico (“Pomerico”), a Legg’s dancer,
reported to VBT’s Department of Public Safety that Cable’s body had been tampered with after his
death. Pomerico also stated that she and other dancers were being forced by Hamilton to serve as
prostitutes providing sexual favors to various Legg’s patrons and that, behind the scenes, Legg’s was
a house of prostitution.
The VBT Police Department, with the aid of members of a special police task force from
Romulus, began a full-scale investigation of illegal activity at and associated with Legg’s. This
investigation included the use of confidential informants who were solicited to engage in acts of
fellatio, intercourse, and other sex acts by dancers at Legg’s for cash. The investigation also relied
upon undercover police officers who also were propositioned to engage in sex acts, including hands-
on lap dances, for a fee.
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On May 3, 2002, VBT and Romulus police officers, in a cooperative effort, raided Legg’s
and an adjacent property pursuant to a valid search warrant. The search warrant was secured, in part,
on Pomerico’s statements.
At some point on May 3, 2002, VBT Director of Planning and Development Kelley was
notified of the raid. He arrived at Legg’s close to midnight after the warrants were served and while
the police were still actively investigating. Kelley testified that he had never before appeared at a
scene where the police were serving a warrant, but he appeared this time out of curiosity. He further
testified that he walked through Legg’s with his camera, which he always has with him.
Detective Louse Keele (“Keele”), who participated in the Legg’s raid, testified that he may
have informed Legg’s customers and employees that a homicide was being investigated despite
knowing that Cable’s death had been classified by the coroner as “natural.” However, the written
reports regarding the Cable incident classify the “nature of the incident” and “offense” as
“Prostitution/Wrongful Death” and “death investigation” respectively.
During the raid, VBT and Romulus police officers seized certain property as part of their
ongoing investigation into criminal activity at Legg’s. Included in the property seized was $1.6
million in cash removed from a safe located inside a residence adjacent to Legg’s. Billy Martin,
Hamilton’s nephew, lived in the residence.
Following the raid, Legg’s, along with various individuals whose property had been seized,
filed a lawsuit in Wayne County Circuit Court against VBT, its police department, Officer Abdilla,
the City of Romulus and Officer Ondejko. This case was captioned Martin, et al., v Charter
Township of Van Buren, et. al., No. 02-218416. The Martin plaintiffs alleged that the search warrant
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was defective and was defectively executed, they alleged negligence and defamation, and they sought
the return of property seized during the raid.
Ultimately the Martin plaintiffs were unsuccessful. On December 18, 2002, the trial court
issued an order denying the return of the seized property and dismissing all claims against each of
the Martin defendants. The Martin plaintiffs then filed a Claim of Appeal with the Michigan Court
of Appeals, which was eventually dismissed by stipulation of the parties. Thus ended Martin.
4.
Soon after the raid, Abdilla, on behalf of VBT, contacted Ondejko, of the Romulus Police
Department, to discuss a request made by VBT for assistance in the Legg’s investigation. VBT
requested the assistance because Romulus, unlike VBT, had a pre-existing special investigations unit
(“SIU”). Ondejko, who is now retired, was a member of Romulus’s SIU. Preliminary issues
discussed between VBT and Romulus included recommendations regarding potential forfeiture of
the seized money; the complexity of the investigation; and the time commitment, manpower and
expense that would be incurred to effectively conduct the investigation.
On May 9, 2002, Romulus Police Chief Charles Kirby authorized Ondejko and other
members of Romulus’s SIU to assist VBT in the investigation of the Legg’s matter. On May 15,
2002, the VBT and Romulus Police Departments entered into a written “equitable sharing”
arrangement. The body of the agreement is as follows:
On May 9, 2002, I met with your detectives at their request, to give assistance
on their investigation into the case involving LEGG’S LOUNGE [sic]. (Case 02-
2110). They informed me that there was approximately 1.6 million in cash seized
from the residence of a bar manager and were looking for guidance on keeping the
money.
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We discussed the methods of investigation that would be needed to provide
your Department with the best grounds for forfeiting this currency and the large
potential for additional seizures if these methods were followed. I believe a
racketeering and conspiracy investigation will provide that foundation. To conduct
such an investigation will require the efforts of more than two detectives and the
training, equipment and experience that our Department can afford you. At the
conclusion of the meeting, you contacted Chief Kirby and my unit was given the
permission to join your detectives in this endeavor. Chief Kirby and the City of
Romulus only ask that we enter into an equitable sharing agreement. With your
permission we would like to make the following request.
The City of Romulus will receive ten percent (10%) of the net proceeds
derived from the forfeiture or other consent agreement in the settlement involving the
approximately 1.6 million seized from 3918 Merriman in the City of Wayne, Mi.
This percentage will be based on the amount left after prosecution costs are
determined and will be in addition to actual cash expenditures by Romulus SIU on
behalf of the Van Buren Township Police investigators. Receipts will be provided
explaining those expenses.
Further, the City of Romulus will receive forty percent (40%) and Van Buren
Township sixty percent (60%) of all proceeds from seizures that occur after our
commitment to this joint investigation was made on May 9, 2002. This figure also
will be based on net proceeds minus prosecution costs.
This letter agreement was written by Ondejko and addressed to Christopher Elg, the Director
of VBT’s Police Department. Ondejko testified that the Romulus Police Department would have
assisted VBT absent the equitable sharing agreement, that equitable sharing agreements, such as this
one, are common practice, and that Romulus had similar agreements with the State Police DRANO
units and the DEA.
The defendants proffered Daniel J. Grant, an expert witness, who testified that equitable
sharing agreements, such as this one, are common when multiple agencies are involved, and these
agreements are authorized by both Michigan and federal statutes. On the other hand, the plaintiffs
proffered Michael Levine (“Levine”), an expert witness, who testified that the contents of this
equitable sharing agreement are “strongly evincive [sic] of a misuse of police power, authority and
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force….” Levine also proffers that this agreement makes no mention of any apparent legal grounds
for seizure, as a trained reviewer would expect, and, instead, “makes apparent that the money is the
target of the law enforcement action and not it’s [sic] natural bi-product.” In any case, the parties
agree that it is not unusual for law enforcement officers to share resources, including personnel, with
neighboring municipalities.
On June 11, 2002, the Forfeiture Unit of the Wayne County Prosecutor’s Office filed a
forfeiture complaint in Wayne County Circuit Court seeking forfeiture of the property seized during
the May 3, 2002 raid. This case was eventually dismissed with prejudice by stipulation of the parties
and the money returned to Hamilton, minus $6,490 in costs.
5.
On August 6, 2002, the Wayne County Prosecutor’s Office filed a complaint in Wayne
County Circuit Court for abatement of nuisance, seeking to padlock Legg’s. This case was dismissed
with prejudice by the parties with the finding that the alleged nuisance activity had been abated.
6.
On August 16, 2002, misdemeanor complaints charging prostitution were issued against
eleven (11) Legg’s dancers, including Samantha Bates (“Bates”). On September 16, 2002, Bates
filed a Complaint for Declaratory Judgment, Violation of Civil Rights, Permanent Injunction and
attorney fees in the United States District Court for the Eastern District of Michigan, the same court
from which this appeal is taken. Bates challenged VBT’s Nudity On Licensed Premises Ordinance
on various constitutional grounds, but lost when the court granted summary judgment in favor of
VBT on res judicata grounds. On appeal, this Court affirmed the dismissal, Bates v. Township of
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Van Buren, 459 F.3d 731 (6th Cir. 2006), and the Supreme Court denied Bates’s petition for a writ
of certiorari, 550 U.S. 935 (2007). Thus ended Bates.
7.
On November 3, 2003, the Michigan Attorney General’s Office brought state-law RICO
charges in the 34th Judicial District against Hamilton and others. On June 14, 2004, the trial court
issued an order dismissing with prejudice the charges against Hamilton.
B. Procedural Background
In plaintiffs’ Corrected Fourth Amended Complaint (“CFAC”)1, the operative complaint, the
plaintiffs assert four claims against the Romulus Defendants: (a) conspiracy; (b) First Amendment
violations; (c) conspiracy to interfere with civil rights; and (d) tortious interference with a business
expectancy. Plaintiffs assert the same four claims against the VBT Defendants plus claims for
conversion and “taking.” Plaintiffs assert six claims against the Inkster Defendants: (a) conspiracy;
(b) First Amendment violations; (c) conspiracy to interfere with civil rights; (d) conversion; (e)
“taking;” and (f) larceny.
The VBT, Romulus and Inkster Defendants each filed motions for summary judgment. The
district court denied oral argument and decided the matter on the briefs. The district court, in two
separate opinions, dismissed the claims against all of the defendants.
The first opinion was entered on August 18, 2009, and granted summary judgment to the
Romulus and VBT Defendants. The district court determined that the individual plaintiffs and the
1
The Corrected Fourth Amended Complaint includes the City of Southgate, Southgate
Mayor Susan Hall and Officers Lawrence Hall and Lawrence Lokuta as defendants. These
defendants were subsequently dismissed pursuant to a stipulation. (Case No. 01-CV-74698, doc.
#326.)
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trust lack standing to assert a conspiracy claim or any other claim to redress injuries to the corporate
entities. It then dismissed the First Amendment claims brought by the individuals, finding that their
right to associate was not violated by any of the remaining defendants. The individual plaintiffs were
not dismissed entirely at the time because their First Amendment claims against the Inkster
Defendants had not yet been addressed.
The district court then granted summary judgment for the Romulus and VBT Defendants on
the conspiracy claim because the plaintiffs offered no evidence of an agreement between Romulus
and VBT to engage in unlawful action. In doing so, the district court found that the equitable sharing
agreement is not an illegal agreement and that the plaintiffs did not establish any cognizable damages
arising from the seizure of property sufficient to sustain a conspiracy claim.
The district court next found that plaintiffs’ conspiracy-to-violate-civil-rights claims against
the Romulus and VBT Defendants failed because plaintiffs offered no evidence of any conspiracy
involving the Romulus and VBT Defendants “to influence parties, witnesses, or jurors in federal
court proceedings” or to impede, hinder, obstruct or defeat “the due course of justice.” The district
court also found that plaintiffs presented no evidence that the Romulus and VBT Defendants’ actions
were motivated by “some racial, or perhaps otherwise class-based, invidiously discriminatory
animus.”
The district court next found that plaintiffs’ tortious-interference-with-business-relationship
claims against the Romulus and VBT Defendants failed because the plaintiffs did not satisfy at least
one of the elements of a Michigan tortious-interference-with-business-relationship claim.
Specifically, the claims failed because the incident causing the alleged interference, the May 3, 2002
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raid at Legg’s, was conducted pursuant to a lawful search warrant and thus was not a wrongful act
or an act done with malice and unjustified in law.
The district court next found that plaintiffs’ conversion claim against the VBT Defendants
failed. The conversion claim failed because the May 3, 2002, raid was conducted pursuant to a valid
search warrant and the property was lawfully seized.
Finally, the district court found that plaintiffs’ “taking” claim against the VBT Defendants
failed because the alleged unconstitutional ordinance had been declared to be constitutional and
because the raid on Legg’s and the associated seizure of property was lawful. The district court
found that the “taking” claim appeared to be nothing more than the conversion claim recast.
The second opinion was entered on August 26, 2009, and granted summary judgment to the
Inkster Defendants. The district court first dismissed the First Amendment claims brought by the
individual plaintiffs because the individual plaintiffs claimed that their right to associate was violated
by the MLCC and not by any of the other defendants who remained a party to the action.
The district court then granted summary judgment for the Inkster Defendants on the
conspiracy claim because the plaintiffs failed to present any evidence of monetary or non-monetary
damages that resulted from the alleged overt act, the bomb threat. The district court also granted
summary judgment on the conspiracy-to-interfere-with-civil-rights claim because the plaintiffs
presented no evidence thereof.
The district court next granted summary judgment on the conversion and “taking” claims.
Summary judgment was granted on the conversion claim against Officer Abdullah because the
record contains no evidence that Abdullah handled the video tape that is the subject of the
conversion claim. This claim also failed against Officers Martin and Brown because plaintiffs did
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not establish any damages due to the alleged illegal conspiracy. Summary judgment was granted on
the “taking” claim because the plaintiffs discussed the conversion and “taking” claims as if they were
one claim and did not discuss the “taking” claim separately.
Finally, plaintiffs’ larceny claim against the Inkster Defendants was dismissed because
larceny is a crime and not a private cause of action. The Plaintiffs/Appellants have now appealed
the grants of summary judgment to the Romulus, VBT and Inkster Defendants. The
Plaintiffs/Appellants do not appeal the district court’s ruling that the individual plaintiffs may not
assert claims on behalf of the corporate defendants. Plaintiffs/Appellants also do not appeal the
dismissal of their 42 U.S.C. § 1985(2) claims, their conversion claims, their “taking” claims or their
larceny claims.
II. JURISDICTION
This Court has jurisdiction to consider this appeal pursuant to 28 U.S.C. § 1291. Section
1291 provides for jurisdiction over appeals from all final decisions of district courts, and the
decisions being appealed are final decisions of a district court. Finally, this appeal was timely filed
pursuant to FRAP 4(a)(1)(A).
III. STANDARD OF REVIEW AND BURDEN OF PROOF
Plaintiffs/Appellants appeal the two orders granting summary judgment to the Romulus, VBT
and Inkster Defendants. Thus, the standard of review is de novo. See Johnson v. Karnes, 398 F.3d
868, 873 (6th Cir. 2005).
Summary judgment should be granted 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 that the moving party is entitled to a judgment as a matter
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of law. Fed. R. Civ. P. 56(c). The court must view the evidence in a light most favorable to the non-
moving party, the Plaintiffs/Appellants in this case, and draw all reasonable inferences in the non-
moving party’s favor. Id. To prevail, the non-movant must show sufficient evidence to create a
genuine issue of material fact. McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000).
An issue of fact is genuine only if it is based upon evidence upon which a reasonable jury
could return a verdict in favor of the non-moving party. Hedrick v. Western Reserve Care System,
355 F.3d 444, 451 (6th Cir. 2004). For a fact to be material, it must affect the outcome of the suit.
Smith v. Chrysler Corp.,155 F.3d 799, 804 (6th Cir. 1998)(citing Anderson v. Liberty Lobby, 477
U.S. 242, 248 (1986)). Finally, factual disputes that are irrelevant or unnecessary will not be
considered. Id.
The moving party has the initial burden of showing the absence of a genuine issue of material
fact as to an essential element of the non-moving party’s case. Hedrick, 355 F.3d at 451. Once the
moving party satisfies its burden, the burden shifts to the non-moving party to set forth specific facts
showing a triable issue. Id. at 452. The proper inquiry on an appeal from a grant of summary
judgment is whether the evidence presents a sufficient disagreement to require submission to a jury.
Williams v. Ford Motor Co.,187 F.3d 533, (6th Cir. 1999)(citing Anderson, 477 U.S. at 251-52
(1986)).
IV. DISCUSSION
The Appellants identify eight (8) “Issues Presented for Review” in their Appellants’ Brief.
However, the Brief discusses seven (7) different, but related issues. The seven (7) issues that are
fully discussed in the Appellants’ Brief will be addressed herein instead of the eight (8) “Issues
Presented for Review.”
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1. The Trial Court ignored evidence of individual and municipal liability under 42 U.S.C. §
1983
Appellants allege that the individual and municipal Appellees, with the exception of Inkster,
violated their federal rights. The Appellants again point to evidence that they originally identified,
that they say creates genuine issues of material fact as to the individual liability of Kelley, Abdilla,
Ondejko, Martin, Brown and Abdullah and the municipal liability of VBT and Romulus.
Section 1983 prohibits officials acting under color of law from depriving citizens of “any
rights, privileges, or immunities secured by the Constitution.” McDonald v. City of Chicago, Ill., 130
S. Ct. 3020, 3076 (2010). Rather than identify the specific rights, privileges or immunities that were
allegedly violated, other than the right of association, the Appellants argue that the trial Court gave
no consideration to all possible avenues for § 1983 liability and decided only whether the Appellees
abridged Appellants’ right of association. Thus, the Appellants have failed to preserve any violation
of specific constitutional rights.2 As a result, we will only consider the issue of whether Appellants
violated the Appellee’s right of association.
Regarding the right of association, Appellee’s CFAC alleges that the Appellants have sought
to: deprive Hamilton, J.R. Hamilton, Jeremy Hamilton and Michael Hamilton of their rights of
ownership of business; to interfere with the family relationship and the right of association; and to
inhibit their right of free speech in violation of § 1983. (CFAC ¶¶ 227, 267 and 302.) The CFAC
also alleges that Hamilton and his corporations have been denied equal protection. (CFAC ¶¶ 229,
269, 304.) Finally, the CFAC alleges that the Appellants retaliated against them for their exercise
of their First Amendment rights. (CFAC ¶¶ 228, 268 and 303.)
2
Federal Rule of Appellate Procedure 28(a) requires that an appellant’s brief include a
statement of the issues presented for review and argument on each issue presented. FRAP 28(a).
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According to the Appellants, as a result of the harassment of the police, the MLCC barred
John Hamilton from working with his children. Appellants argue that this restriction is
“unconstitutional on its face.” The Appellants also argue that the trial court’s holding that these
claims were barred because the only proper party Defendant was the MLCC, which is not a party,
“is error.” However, the Appellants offer no facts or legal argument as to how Hamilton was
illegally barred from working with his children.
The trial court dismissed the First Amendment claims because the individual plaintiffs did
not assert that their right to associate was violated by any current defendant. Further, the Appellants
offer no facts or legal argument as to why the trial court’s holding regarding MLCC is in error.
Without more, there is nothing for this Court to review. There are no genuine issues of material fact
and the Appellees are entitled to judgment as a matter of law on Appellants’ right-of-association
claim. The trial court’s decision on the right-of-association matter is affirmed.
The only other possible avenue for § 1983 liability mentioned in the Appellants’ Brief is
“retaliation taken against the Appellants for engaging in 1st amendment expression.” However, the
Appellants offer no argument regarding this alleged § 1983 liability. Thus, alleged § 1983 liability
for retaliation for engaging in First Amendment expression was not appealed. If it were, it would
be without merit.
Retaliation for exercise of First Amendment rights is a violation of § 1983. See Hartman v.
Moore, 547 U.S. 250, 256 (2006). The arguable “facts” identified by the Appellants for their
conspiracy claim are more fully set forth below and are the same and only facts that could be
identified as the basis for a § 1983 retaliation claim. As with the conspiracy claim, this plethora of
arguable facts suffer from a multitude of problems, including that they misstate the underlying
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evidence, are presented only to prejudice this Court, are irrelevant, do not describe illegal activity,
do not constitute evidence, are actions not taken under the “color” of the law or are legal conclusions
unsupported by factual allegations. Thus, based upon these alleged facts, no reasonable juror could
find that the Appellees retaliated against the Appellants based upon the Appellants’ exercise of First
Amendment rights.
There are no genuine issues of material fact and the Appellees are entitled to judgment as a
matter of law on Appellant’s right-of-association claim. Further, if the Appellants had appealed a
retaliation claim, there would be no genuine issues of material fact and the Appellees would be
entitled to judgment as a matter of law on that claim.
Therefore, Appellants’ first assignment of error is not well taken. The trial court did not
ignore evidence of individual and municipal liability under 42 U.S.C. § 1983.
2. There is evidence from which a reasonable juror could have found both a § 1983 conspiracy
and state-law conspiracy by the Appellees.
3. The Trial Court erred when it redefined and narrowed the nature of the conspiracy alleged
by the Appellants.
4. The Trial Court erred when it refused to consider the evidence of the acts of non-Defendant
co-conspirators.
5. The Trial Court erred when it misapplied the law relative to conspiracy.
Each of the above four assignments of error go to summary judgment on the conspiracy
claim. The trial court granted summary judgment to the VBT, Romulus and Inkster Defendants on
the conspiracy claim. Therefore the above four assignments of error will be considered together.
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Appellants’ CFAC merely alleges counts brought under the “conspiracy and continuing
wrongful acts doctrine.” The CFAC does not identify the specific legal basis for the conspiracy
claim.
Further, the Appellants now argue that the “corporate Appellants” allege that VBT, Romulus,
and Inkster engaged in a variety of acts designed to put Hamilton’s bars out of business. Thus, the
Plaintiffs/Appellants do not now appeal the grant of summary judgment regarding the individual
plaintiffs’ conspiracy claims.
A civil conspiracy actionable under § 1983 is
[a]n agreement between two or more persons to injure another by unlawful action.
Express agreement among all the conspirators is not necessary to find the existence
of a civil conspiracy. Each conspirator need not have known all of the details of the
illegal plan or all of the participants involved. All that must be shown is that there
was a single plan, that the alleged coconspirator shared in the general conspiratorial
objective, and that an overt act was committed in furtherance of the conspiracy that
caused injury to the complainant.
Hooks v. Hooks, 771 F.2d 935, 943-44 (6th Cir. 1985). Further, conspiracy claims must be pled with
some degree of specificity, and vague and conclusory allegations unsupported by material facts are
not sufficient to state a claim. Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir. 2003)(citing
Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987)). Finally, circumstantial evidence of an
agreement among all conspirators may provide adequate proof of a conspiracy. Id.(citing Weberg
v. Franks, 229 F.3d 514, 528 (6th Cir. 2000)).
As to damages, a conspirator is liable for all of the acts taken in furtherance of the conspiracy,
regardless of whether the conspirator participated directly in the act. Canter v. Hardy, 188 F.
Supp.2d 773, 792 (E.D. Mich. 2002). Also, a settlement with a named co-conspirator is not a bar
to introducing evidence of the settling defendant’s conspiratorial acts. Id. at 776.
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Michigan conspiracy law is similar to federal conspiracy law. Michigan conspiracy law
provides that “[a] conspiracy is a combination of two or more persons, by some concerted action,
to accomplish a criminal or unlawful purpose, or to accomplish a purpose not unlawful by criminal
or unlawful means.” Fenestra Inc. v. Gulf America Land Corp., 141 N.W.2d 36, 48 (Mich. 1966).
Thus, if applicable, the unlawful means must have been used to accomplish a criminal or unlawful
purpose.
The Appellants first argue that the Appellees conspired to put Hamilton’s bars out of
business. They identify the following plethora of purported factual allegations in support of their
conspiracy claim:
1. Southgate police officer Lawrence Lokuta (“Lokuta”) (a non party) conducted
three actions against Henry’s South and used these to file MLCC violations in an
effort to close Henry’s South.
2. Within three months of these charges being settled, Lokuta again conducted
undercover operations against Henry’s South and waited six months before filing
MLCC violations allegedly to ensure that the dancers would not be available to
testify and contradict his allegations. As a result of these violations, Henry’s South’s
liquor license was revoked.
3. The MLCC then settled with Henry’s South allowing the business to be sold and
transferred but Southgate would not approve the transfer of an entertainment permit
to allow topless dancing.
4. Between 1991 and 2001, Southgate police traveled through Henry’s South’s
parking lot several times a day and evening and would park across the street in plain
view of the customers. These police officers allegedly “unjustifiably” interrogated
the bar’s employees and stopped and followed patrons leaving the bar, allegedly
without justification.
5. During some of this time, Laurence Hall was the Southgate Police Chief and was
married to Susan Hall when she was the Mayor of Southgate between 1999 and 2003.
In 2003, Susan Hall was videotaped at a Southgate City Council meeting stating,
“we’ve been working for eight years to get Hamilton out of here.”
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6. On May 10, 2000, Southgate passed an “anti-nudity”ordinance allegedly directed
at Henry’s South.
7. After Henry’s South lost its liquor license, the Southgate police administration on
October 2, 2002, directed that the anti-nudity ordinance be enforced only against non-
liquor-licensed establishments, specifically stating that enforcement of the ordinance
with regard to topless dancing is only appropriate against Henry’s South.
8. On May 7, 2002, four days after VBT had raided Legg’s, VBT officer Abdilla
contacted Detective Walsh of the Southgate police to discuss his investigation of
Henry’s South.
9. Henry’s South sued Southgate, and, in 2006, the anti-nudity ordinance was found
unconstitutional.
10. Prior to 1991, at an MLCC hearing regarding Henry’s in Inkster, an MLCC
attorney instructed one of Hamilton’s witnesses to evade a subpoena.
11. Subsequently, the MLCC filed charges against Henry’s South. Woody Webb, an
MLCC enforcement officer, told Hamilton that he had been instructed to show
Hamilton “who’s the boss” and not to settle the charges against Henry’s South even
though it was a first offense.
12. Assistant Attorney General Thomas Giachino, assigned to the MLCC, testified
that he could not recall other establishments who had engaged in lap dancing having
their liquor license revoked and could not recall any other license revocation in 1994
and that such revocations are rare.
13. On April 2, 1996, Wayne County Assistant Prosecutor Larry Roberts sent a
memo to Inkster police asking for information on Hamilton’s two topless bars in
Inkster and said that the MLCC would cooperate in prosecuting these establishments.
14. On September 7, 2007, a federal court found that the MLCC rules that were used
as the basis of the revocation of Henry’s South’s license could not be enforced until
the underlying legal proceeding was resolved.
15. Soon thereafter, a Wayne County Task Force conducted an undercover operation
at Bogart’s. The same Task Force, this time with Inkster police officer Martin and
VBT police officer Gregory Laurain, then conducted an undercover operation against
Henry’s South.
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16. On May 3, 2002, VBT executed two search warrants outside its jurisdiction in a
residence in Wayne, Michigan, resulting in the seizure of a safe containing in excess
of 1.6 million dollars of Hamilton’s money.
17. On May 7, 2002, Abdilla contacted Southgate Police to discuss his investigation
of Henry’s South.
18. On May 17, 2002, VBT and Romulus police officers executed a search warrant
at Henry’s.
19. On May 21, 2002, Ondejko used a confidential informant to conduct an
undercover operation at Bogart’s.
20. On May 26, 2002, a Romulus police officer conducted an undercover operation
against Bogart’s.
21. On June 21, 2002, Romulus police officers, working with VBT, again conducted
an undercover operation at Bogart’s.
22. The Appellants assert that the trial court “summarily dismissed Levine’s 429 page
report detailing the conspiracy as ‘highly subjective and argumentative.’” Levine,
Appellants’ expert, is alleged to have reviewed over 20,000 pages of Appellants’
exhibits and depositions and many hours of videotaped interviews.
23. VBT clearly did not want a topless bar in its community and drafted SOB
ordinances that were directed at and only enforced against Legg’s.
24. When a lawsuit failed to close Legg’s, VBT tried to close Legg’s through an
extensive and unwarranted criminal investigation.
25. Kelley was present at the May 3, 2002, search for no legitimate reason.
26. The report of the criminal investigation submitted by VBT and Romulus
investigators was false and based upon perjured testimony and substandard
investigative procedures.
27. VBT and Romulus had contacts with Southgate and Inkster and conducted
numerous investigations and searches outside of their jurisdiction.
28. According to another Plaintiffs’/Appellants’ expert, the passing of the VBT SOB
ordinances and the intensive criminal investigation caused a dramatic loss of sales
at Legg’s. Additionally, Henry’s South had more than 3.2 million dollars in losses.
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29. Hamilton testified that he experienced the distress of a sham criminal
prosecution, the seizure and holding of $1.6 million, police harassment and perjury,
the blocking of the sale of Henry’s South, and “millions of dollars in lost sales.”
30. The trial court has previously engaged in this type of reversible error.
31. There was inadequate supervision of Abdilla and Ondejko, the two lead
investigators leading, to giving informants money to have sex with dancers and for
Abdilla and Ondejko themselves to go into the businesses and engage in sexual
activity.
32. VBT officers had been at Legg’s more than 119 times while they were off duty
drinking for free and engaging in illegal sexual activity.
33. It can be inferred that the bomb threat on May 11, 2000, was perpetrated by
Brown, Martin and Abdullah in order to seize a video tape of the dancers.
34. The Joint Investigation Agreement [equitable sharing arrangement agreement]
was entered into with an unlawful purpose.
Analysis
There are many problems with the above plethora of factual allegations identified by the
Appellants, not the least of which is that there is no evidence of an agreement between anyone to
engage in an unlawful action or to engage in a lawful action for an unlawful purpose. What
Appellants lack in quality, they attempt to make up in quantity. Yet, at best, the Appellants have
shown that various government entitles worked together to investigate criminal activity, a perfectly
legal and accepted practice. At worst, the Appellants have shown that some of the individuals and
police procedures involved may not have been perfect, but not illegal.
Many of the Appellants’ allegations misstate the underlying evidence are presented only to
prejudice this Court; are irrelevant, do not describe illegal activity, do not evidence an illegal
purpose, were not actions taken under the “color” of the law, are legal conclusions unsupported by
factual allegations or are a combination of the foregoing.
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By way of further example, much is made of the equitable sharing agreement and Appellants’
Expert’s view of the equitable sharing agreement. Yet, expert testimony is not needed to decide the
legality of the equitable sharing agreement. The equitable sharing agreement is an often-used type
of agreement, is not illegal, and makes no mention of putting Hamilton out of business. Further, the
fact that an equitable sharing agreement may result in criminal charges does not render the agreement
unlawful.
Appellants’ expert report is, at best, speculative and conclusory. The expert report cannot
be used to create an issue of fact where none existed. See Williams, 187 F.3d at 544.
Appellants argue that the trial court erred when it narrowed the object of the conspiracy claim
in the case of the VBT and Romulus Defendants to consideration of only the equitable sharing
agreement. The Appellants also argue that the trial court erred in its definition of wrongful acts by
framing the issue as what damages flowed from the seizure of property in the case of the VBT and
Romulus Defendants and what damages flowed from the bomb scare incident in the case of the
Inkster Defendants. Finally, the Appellants argue that the trial court erred when it refused to
consider the acts of the MLCC and Southgate. All of these arguments fail because the Appellants
have not shown any agreement to engage in unlawful conduct.
The Appellants also argue that the court should have considered whether the co-conspirators
used arguably lawful means for the improper purpose of putting Appellants’ bars out of business.
In this case, while it may be against the law to put Appellants’ bars out of business using illegal
means, it is not against the law if Appellants’ bars are forced out of business for failing to comply
with the law, and Appellants have not shown that the co-conspirators failed to comply with the law.
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The above facts and the additional facts identified upon de novo review, even if accepted as
true, do not identify any illegal activity or any legal activity taken with an illegal purpose, a
requirement to sustain a conspiracy claim under either federal or Michigan conspiracy law. This
conclusion is supported by the individual Appellants who all testified that they did not have any
personal knowledge that any of the Defendants were trying to put them out of business.
The factual allegations identified by the Appellants do not identify a sufficient disagreement
on the elements of a conspiracy claim to require submission to a jury. There are no genuine issues
of material fact and the VBT, Romulus and Inkster Defendants are entitled to summary judgment
on the corporate Appellants’ conspiracy claim. The trial court’s decision on the conspiracy claim
is therefore affirmed.
6. The Trial Court erred when it redefined and narrowed the claim relative to tortious
interference with business relations.
The Appellants argue that the trial court erred when it narrowed the tortious-interference
claim to consideration of only the raid of Legg’s and failed to consider the other factual allegations
regarding their § 1983 claims for attempting to put Hamilton’s bars out of business. However, this
Court has considered Plaintiffs’/Appellants’ § 1983 conspiracy, right-of-association and retaliation
claims above and found that the Appellees are entitled to summary judgment on each.
Under Michigan law, the Plaintiffs/Appellants must show the following elements to prevail
on a tortious-interference-with-a-business-relationship claim:
(1) the existence of a valid business relation or expectancy; (2) knowledge of the
relationship or expectancy on the part of the defendant interferer; (3) an intentional
interference inducing or causing a breach or termination of the relationship or
expectancy; and (4) resulting damages to the party whose relationship or expectancy
has been disputed.
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Wausau Underwriters Insurance Co. v. Vulcan Development, Inc., 323 F.3d 396, 404 (6th Cir.
2003). Further, showing an intentional interference requires showing purposeful or knowing
behavior and that the interference was either (1) a per se wrongful act or (2) a lawful act done “with
malice and unjustified in law for the purpose of invading the contractual rights or business
relationship of another.” Id.(quoting Feldman v. Green, 360 N.W.2d 881, 891 (Mich. Ct. App.
1984)). Finally, to show that a lawful act was done with malice and without justification, the
plaintiff must show, with specificity, affirmative acts by the defendant that corroborate the improper
motive of the interference. Erickson’s Flooring & Supply Co., Inc., v. Tembec, Inc., 212 F. App’x
558, 566 (6th Cir. 2007)(unpublished).
The Appellants argue that the acts of the Appellees constituting § 1983 violations likewise
state a claim for tortious interference. However, summary judgment has been granted to these
Appellees on the alleged § 1983 violations. Thus, the Plaintiffs/Appellants have not shown the VBT,
Romulus or Inkster Defendants either committed a per se wrongful act or a lawful act done with
malice and unjustified in law for the purpose of invading the contractual rights or business
relationship of another.
There are no genuine issues of material fact and the VBT, Romulus and Inkster Defendants
are entitled to judgment as a matter of law on Appellants’ tortious-interference-with-business-
relationship claim. The trial court’s decision on this claim is therefore affirmed.
7. The Trial Court erred in disregarding evidence on the basis that Appellants at deposition
could not remember all the facts supporting their claims.
The Appellants’ final argument is that the trial court did not consider evidence for purposes
of the motions for summary judgment beyond Hamilton’s lack of knowledge of the facts supporting
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his claims. Rule 56(c) requires the court to consider the pleadings, the discovery and disclosure
materials, and any affidavits on file. Fed. R. Civ. P. 56(c). Thus, when considering a motion for
summary judgment, a court should consider more than only one deposition if more Rule 56 evidence
than one deposition is filed, as is the case here.
In this case, there is evidence, based upon a reading of the opinions, that the trial court
examined the three motions for summary judgment, the responses and the replies, including the
pleadings, discovery, and disclosure materials and affidavits on file. In reaching its summary
judgment decisions, the trial court cites ample evidence in addition to the individual Appellants’
deposition testimony. Therefore, the trial court did not err in disregarding evidence that the
individual Appellants could not remember all the facts supporting their claims at deposition.
IV. CONCLUSION
The trial court did not ignore evidence of individual and municipal liability under 42 U.S.C.
§ 1983. The Appellees are thus entitled to summary judgment on these claims.
The trial court did not misapply conspiracy law and there is no evidence from which a
reasonable juror could have found a § 1983 conspiracy or a state-law conspiracy by the Appellees.
Thus, the Appellees are entitled to summary judgment on Appellant’s conspiracy claims.
Appellants’ tortious interference with business relations claim fails. Appellees are thus
entitled to summary judgment on this claim as well.
Finally, the Appellants’ statements and the evidence that is identified in addition to the
Appellants’ statements were considered by the trial court and do not support the Appellants’ claims.
The judgment of the district court is therefore AFFIRMED.
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