Charles Blackwell v. James Allen ( 2022 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0535n.06
No. 22-1300
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Dec 21, 2022
DEBORAH S. HUNT, Clerk
)
CHARLES BLACKWELL,
) ON APPEAL FROM THE
Plaintiff-Appellant, ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
v. ) DISTRICT OF MICHIGAN
)
JAMES P. ALLEN, SR. et al., ) OPINION
Defendants-Appellees. )
)
Before: BOGGS, KETHLEDGE, and WHITE, Circuit Judges.
HELENE N. WHITE, Circuit Judge. In this civil-rights suit alleging violations of the
First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and Title II of the
Americans with Disabilities Act (ADA), Plaintiff-Appellant Charles Blackwell appeals the district
court’s dismissal of his complaint for failure to state a claim. We affirm.
I.
For purposes of this appeal, we take as true the facts alleged in Blackwell’s amended
complaint. Rudd v. City of Norton Shores, 977 F.3d 503, 507 (6th Cir. 2020). Blackwell is an
activist “who advocates for transparency in government and holding Metro Detroit municipalities
accountable by engaging with local municipalities on social media, attending city council
meetings, and filing Freedom of Information Act (‘FOIA’) requests with various public bodies.”
R. 12, PID 112. A drive-by shooting paralyzed Blackwell’s lower extremities several years ago,
confining him to a wheelchair.
No. 22-1300, Blackwell v. Allen
Defendant-Appellee James Allen is an attorney. His law firm, Allen Brothers, PLLC, “acts
as the city attorney” for Defendant-Appellee City of Hamtramck, Michigan, (the City) pursuant to
a contract, and Allen regularly holds himself out as the Hamtramck city attorney. PID 114.
Blackwell filed several FOIA requests with the City seeking information on its contract
with Allen Brothers, PLLC, as well as information on members of the Hamtramck City Council.
Allen personally denied one of these requests on August 16, 2021, writing that there were “ample
grounds to DENY your request on its face” and signing the letter as “Hamtramck City Attorney.”
Id.Two days later, on August 18, 2021, Blackwell emailed a “parody ‘meme’”1 to several City
officials. PID 115. The meme—which Blackwell described as “a criticization of Allen and [his
law partner David] Jones”—depicted the heads of Allen, Jones, and a third man attached to
women’s bodies. Id. All three are standing outside the Frank Murphy Hall of Justice in a skirt
and heels, with long blonde hair, holding a briefcase. Allen is identified as “Hamtramck City
Attorney.” Id. The bottom of the meme is labeled “ALLEN BROTHERS PLLC.” Id. The top is
labeled “POLITICAL PARODY AND SATIRE.” Id. No further context is given. Blackwell sent
the meme from an anonymous account using the name “Susana Hamad” and gave no indication
that he was its true author. Id.; R. 12-2, PID 131. Blackwell copied Allen on the email using the
address “JamesAllen@allenbrotherspllc.com,” which Allen uses for all business on behalf of the
City. R. 12, PID 116.
1
A “meme” is an “amusing or interesting item (such as a captioned picture or video) or genre of items that
is spread widely online especially through social media.” Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/meme (last visited Nov. 6, 2022).
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Allen, apparently suspecting that Blackwell was behind the email, responded to it with
several personal attacks on Blackwell’s character and physical disability.2 Among other things,
Allen mocked Blackwell’s inability to walk or have sexual intercourse.
Several hours later, at 12:43 AM on August 19, 2021, Allen responded to the meme email
a second time. He again insulted Blackwell’s disability, calling him “Wheelboy” and taunting that
“God recognized evil and sentenced you to sit while people like me run free and spread our DNA
into the universe like you CAN’T.” R. 12, PID 117; R. 12-2, PID 130. He continued:
The more you play, moreover, the better for me. And you teaming up with your
crusading friends? That’s music to my ears . . . We love people like you. My
children thank you, in fact, for the college money . . . From the bottom of my
satisfied self’s contented heart, thank you for the many hours you keep my
colleagues occupied. The Allen-Jones Family educational scholarship fund thanks
you as well.
R. 12-2, PID 130. Roughly a half hour later, at 1:11 AM, Allen sent a third reply. He “dare[d]”
Blackwell to “send these emails to people and say I should be cancelled for dogging a pathetic
little wheelboy like you,” and told him:
Saw you seated today and yesterday and will see you seated for as long as the Good
Lord sentenced you . . . [Y]ou surely deserved that bullet God sent to put you where
you are when you read this and where you will ALWAYS be, haha, unable to be
the man you ever were. How fitting for such a coward.
R. 12, PID 119; R. 12-2, PID 132.
Using the Susana Hamad email address, Blackwell sent a copy of these emails to the
Michigan Attorney Discipline Board (the Discipline Board) on August 24, 2021, and requested
that the Discipline Board investigate Allen’s conduct. He did not sign the email or identify himself.
2
Allen responded directly to the email using his JamesAllen@allenbrotherspllc.com account. He did not
copy his partners at the law firm or any City officials on the reply.
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Blackwell sent a copy of his email to the Discipline Board to Allen at his law-firm email
address. Allen quickly replied3 with more jabs at Blackwell’s disability, and told Blackwell:
“Your complaint doesn't exist until a flesh and blood Susana materializes . . . However, if the
request for investigation comes, we’ll have what we need to subpoena your ISP and verify what
we already know.” R. 12-4, PID 136. A few minutes later, Blackwell (still using the Susana
Hamad email address) responded to Allen with a picture of Rudy Giuliani bearing the caption:
“Law license should be suspended like his.” PID 137. Allen retorted (in the same email thread):
“We’ll see, Kev. If it happens, it will be the first time someone got suspended on a complaint from
someone who doesn’t exist. You’ll be going under oath either way after your ISP answers my
subpoena.” Id.According to Blackwell, Allen’s conduct “mocking his disability, taunting him with
comments about what [Allen] is able to do and what [Blackwell] cannot, asserting that [Blackwell]
deserved the bullet that paralyzed [him], and threatening to subpoena [his] ISP and depose him”
deterred Blackwell from “attending city council meetings,” “requesting documents via FOIA,” and
“engaging in anonymous political satire and free speech.” R. 12, PID 120. He filed suit in federal
district court, alleging that Allen violated 42 U.S.C. § 1983 by discriminating against him on the
basis of disability, in violation of the Equal Protection Clause of the Fourteenth Amendment
(Count 1); that the City, through Allen as its agent, discriminated against him on the basis of
disability, in violation of Title II of the ADA (Count 2); and that Allen retaliated against him for
exercising his First Amendment free speech rights, again in violation of 42 U.S.C. § 1983 (Count
3).
3
Allen replied directly to the email from the Susana Hamad address and did not copy the Discipline Board
on his reply.
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No. 22-1300, Blackwell v. Allen
Allen and the City both sought dismissal for failure to state a claim, which the district court
granted on March 14, 2022. Addressing Allen’s motion first, the district court noted that, to state
a cause of action under Section 1983, a plaintiff must allege deprivation of a constitutional right
by a state actor. It reasoned that “[h]ere, the state actor question is easily resolved by the rule that
‘attorneys do not become state actors by representing state or local governments.’” R. 25, PID
407. It continued: “Allen is a private attorney who represents the City of Hamtramck. Because
Blackwell has not alleged facts from which the Court could reasonably infer that Allen is a state
actor, he has failed to plausibly state [Section] 1983 claims against Allen. Accordingly, Allen’s
motion to dismiss is granted.” PID 408. The district court dismissed the Section 1983 claims
against the City because Blackwell failed to establish an underlying constitutional violation by a
municipal employee or official.4
The district court held that Blackwell’s claim under Title II failed for similar reasons—the
complaint premised all ADA liability on Allen’s actions as the City’s “agent,” and “private lawyers
representing public entity clients ‘do not act as agents of the state.’” PID 409. The district court
further explained that “[t]he Sixth Circuit has recently clarified that a public entity cannot be held
vicariously liable for an agent’s violations of the ADA, see Jones v. City of Detroit, Mich., 20 F.4th
1117, 1122 (6th Cir. 2021), and so it would make no sense to permit the City to be held liable for
the actions of Allen, a non-agent.” PID 409-410. The district court accordingly dismissed
Blackwell’s ADA claim against the City.
Blackwell now appeals.
4
While Count II of the amended complaint clearly states that the ADA claim is “[a]s to the City of
Hamtramck,” Counts I and III do not specify whether Blackwell seeks relief under Section 1983 from Allen, the City,
or both. R. 12, PID 121-23. But the City interpreted Blackwell as bringing municipal-liability claims against it under
Section 1983 and moved to dismiss them, and Blackwell responded that he sufficiently pled “that Allen had decision-
making authority as a city attorney for the City of Hamtramck and therefore the City of Hamtramck is liable for [his]
§ 1983 claims under Monell,” R. 21, PID 333-34, so the district court addressed the issue.
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II.
We review de novo a district court’s decision to grant a motion to dismiss for failure to
state a claim. Lambert v. Hartman, 517 F.3d 433, 438–39 (6th Cir. 2008). To survive a motion to
dismiss, a plaintiff’s “[f]actual allegations must be enough to raise a right to relief above the
speculative level on the assumption that all of the complaint’s allegations are true.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (internal citation omitted).
III.
We begin with the district court’s dismissal of the Section 1983 claims against Allen. To
state a claim under Section 1983, a plaintiff must allege that (1) a right secured by the Constitution
or a federal statute has been violated (2) by a person acting under color of state law. West v. Atkins,
487 U.S. 42, 48 (1988). We have interpreted the second requirement, often called the “state action
requirement,” to mean that a defendant “must be acting in a state capacity to be liable under the
statute.” Lindke v. Freed, 37 F.4th 1199, 1202 (6th Cir. 2022) (citing West, 487 U.S. at 48).
The conduct that Blackwell claims violated his federal rights—“mocking his disability,
taunting him with comments about what [Allen] is able to do and what [Blackwell] cannot,
asserting that [Blackwell] deserved the bullet that paralyzed [him], and threatening to subpoena
[Blackwell’s] ISP and depose him”—occurred within the confines of Allen’s emails. R. 12, PID
120. Accordingly, this appeal comes down to whether Blackwell plausibly alleged that these
emails were “fairly attributable” to the City. Lugar v. Edmondson Oil Co., 457 U.S. 922, 937
(1982). Because he did not, the district court properly granted Allen’s motion to dismiss.
A. Allen as a Private Actor
On appeal, Blackwell claims that the district court “entirely ignored” his argument that
Allen “could still act under color of law as a private actor, thus making him liable for his actions
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under [Section] 1983.” Appellant Br. at 20. He argues that state action can be inferred from the
fact that Allen previously denied his FOIA request, regularly attends city-council meetings, and
responds to emails directed to other Hamtramck officials.
The Supreme Court has identified three tests for discerning whether a private party’s
conduct is attributable to the state: (1) the public-function test, (2) the state-compulsion test, and
(3) the nexus test. Lindke, 37 F.4th at 1202 (citing Lugar, 457 U.S. at 939; and Chapman v. Higbee
Co., 319 F.3d 825, 833 (6th Cir. 2003) (en banc)). Blackwell does not plausibly allege state action
under any of these tests.
1.
“Under the public function test, a private party is deemed a state actor if he or she exercised
powers traditionally reserved exclusively to the state.” Chapman, 319 F.3d at 833. This test has
been interpreted narrowly to cover only functions like holding elections, exercising eminent
domain, and operating a company-owned town. Id. at 833-34. Responding to emails is not
comparable to these functions, considering that the general public routinely engages in such
activity. Cf. Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992) (holding that a non-profit
corporation contracted by the county was not a state actor under the public-function test because
“providing mental health services has not been a power which has traditionally been exclusively
reserved to the state”); Cruz-Arce v. Mgmt. Admin. Servs. Corp., 19 F.4th 538, 545 (1st Cir. 2021)
(holding that a private company contracted to run a low-income housing project was not a state
actor under the public-functions test because the “the provision of low-income housing has never
been exclusive to the government”). Blackwell thus fails to plausibly allege state action under the
public-function test.
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2.
The state-compulsion test requires that the state “exercise such coercive power or provide
such significant encouragement, either overt or covert, that in law the choice of the private actor
is deemed to be that of the state.” Wolotsky, 960 F.2d at 1335. Decisions that involve discretion
do not implicate this test. See Ellison v. Garbarino, 48 F.3d 192, 196 (6th Cir. 1995) (holding that
physicians were not state actors under a Tennessee statute because the statute, despite allowing
only an officer or licensed physician to authorize an involuntary commitment, did not “compel”
or “encourage” such decisions). Blackwell does not allege that city officials coerced, pressured,
or even encouraged Allen to send the derogatory emails, nor that any city policy required Allen to
respond in such a manner. He therefore fails to plausibly allege state action under the state-
compulsion test.
3.
Under the nexus test, a plaintiff must allege that “there is a sufficiently close nexus between
the government and the private party’s conduct so that the conduct may be fairly attributed to the
state itself.” Chapman, 319 F.3d at 834. To make this determination, we ask whether a defendant’s
actions are either subject to the government’s “management or control” or “entwined with
governmental policies.” Lindke, 37 F.4th at 1203 (quoting Brentwood Acad. v. Tenn. Secondary
Sch. Athletic Ass’n, 531 U.S. 288, 296 (2001)).
Blackwell does not allege that the City instructed Allen to respond to his emails, oversaw
the drafting process, or approved Allen’s responses before they were sent. The main nexus to state
authority posited by the complaint is that Allen responded to Blackwell from the same email
address that he uses for “all business on behalf of the City of Hamtramck.” R. 12, PID 116. But
this fact does not establish the level of management or control required to satisfy the nexus test.
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Cf. Marie v. Am. Red Cross, 771 F.3d 344, 363 (6th Cir. 2014) (rejecting the plaintiffs’ argument
that they satisfied the nexus test “by pleading that the Red Cross [was] financially dependent on
government assistance and that they regularly partner with state and local governments in disaster
relief”).
Further, to state a claim under this test, Blackwell must allege a sufficiently close nexus
“between the state and the challenged action.” Wilcher v. City of Akron, 498 F.3d 516, 520 (6th
Cir. 2007) (emphasis added). Here, the challenged actions are not Allen’s denial of Blackwell’s
FOIA request, or Allen’s attendance at city-council meetings, but Allen’s allegedly retaliatory and
discriminatory emails. There are no allegations in the complaint that the City supervised or
approved these emails. Unlike the various officials Blackwell emailed—who all had City email
addresses—the complaint alleges that Allen communicated with a personal account connected to
his private law firm, sent some emails directly from his phone, and sent most outside regular city
business hours, two after midnight. Blackwell fails to plausibly explain how the City exerted any
control over this conduct. Cf. Marie, 771 F.3d at 363 (holding that plaintiffs had failed to plead
state action under the nexus test where the challenged actions were the Red Cross’s failure to
promote plaintiffs and ultimate decision to terminate them, but the complaint contained no
allegations “that the State had any connection to these types of personnel decisions”); see also
Lansing v. City of Memphis, 202 F.3d 821, 832-33 (6th Cir. 2000) (holding that a private festival’s
decision to expel a street preacher could not be attributed to the state—despite the fact that the
festival received public funds, adhered to state regulations, was held on leased public land, and
utilized local law enforcement to remove the preacher—because the state did not dictate the
festival’s decisions in this regard).
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Nor does Blackwell plausibly allege that Allen’s actions were entwined with a
governmental policy. The complaint does not claim that Allen sent Blackwell discriminatory or
retaliatory emails in the context of discussing ongoing city litigation or official city business.
Rather, Blackwell alleges that he emailed Allen—and others—a meme of Allen’s head on a
woman’s body. According to the complaint, this meme prompted Allen to respond—in that same
email chain—with his own objectionable emails. Blackwell likewise alleges that he copied Allen
on his email to the Discipline Board, leading Allen to respond with more emails. Blackwell fails
to identify any municipal code or statute requiring its retained attorneys to respond to all emails,
or any city policy that Allen may possibly have been following. And even if he did, Allen did not
sign any of these emails as “city attorney,” identify himself as the City’s legal representative, or
otherwise purport to be emailing on the city’s behalf. Nor did Allen expressly invoke the city’s
authority or claim to wield government power. The complaint fails to plausibly explain how such
emails are so “overborne by the pervasive entwinement of public institutions and public officials”
that they are fairly attributable to the City itself, rather than to Allen as a private actor. Marie, 771
F.3d at 364 (quoting Vistein v. Am. Registry of Radiologic Technologists, 342 F. App’x 113, 128
(6th Cir. 2009) (per curiam)).
Blackwell offers two additional reasons why Allen’s personal emails should be attributed
to the City under the nexus test: the complaint alleges that the City “approved payment on the
invoices specifically for the emails sent by Defendant Allen to Mr. Blackwell,” R. 12, PID 118;
Appellant Br. at 22; and Allen’s emails are “replete with references to the money he makes and
will make as city attorney because of Mr. Blackwell’s engagement with the City,” Appellant Br.
at 23.
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Allen attached his firm’s invoices to the City to his motion to dismiss. They show that he
billed the City for his time spent responding to Blackwell’s FOIA request, but they contain no
entry from August 2021 that could plausibly indicate that he billed the City for the time spent
responding to Blackwell’s meme or email to the Discipline Board. We are not required to accept
allegations as true when they are contradicted in this way.5
As for Allen’s references to making money as a city attorney, the fact remains that he works
for a private law firm—Allen Brothers, PLLC. The complaint acknowledges this fact. A private-
sector attorney does not automatically become a state actor just by representing a government
entity. See Dyer v. Md. State Bd. of Educ., 685 F. App’x 261, 263 (4th Cir. 2017) (per curiam)
(“A law firm and attorney who represent a public school board, like the law firm Defendants did
here, do not become state actors under [Section] 1983 by providing legal services to the board, a
power not possessed by virtue of state law.”); Caleb v. Grier, 598 F. App’x 227, 234 (5th Cir.
2015) (per curiam) (holding that attorneys hired for a school’s internal investigation were not liable
as state actors merely for recommending that the school board terminate the plaintiffs); Horen v.
Bd. of Educ. of Toledo City Sch. Dist., 594 F. Supp. 2d 833, 841 (N.D. Ohio 2009) (dismissing a
Section 1983 action “because attorneys do not become state actors by representing state or local
governments”); Freshwater v. Mount Vernon City Sch. Dist. Bd. of Educ., 2010 WL 1434314, at
*2 (S.D. Ohio 2010) (“It is well settled that a private attorney does not become a state actor simply
by representing a public body.”).
5
We may consider documents attached to a motion to dismiss if the documents “are referred to in the
plaintiff’s complaint and are central to her claims.” McLaughlin v. CNX Gas Co., LLC, 639 F. App’x 296, 298 (6th
Cir. 2016) (quoting Weiner v. Klais & Co., 108 F.3d 86, 89 (6th Cir. 1997)). Blackwell specifically references the
invoices in his amended complaint and makes them central to his Section 1983 claims. “Furthermore, this court may
take judicial notice of public records,” such as invoices paid by the City to its legal counsel, “and we are not required
to accept as true factual allegations that are contradicted by those records.” Clark v. Stone, 998 F.3d 287, 298 (6th
Cir. 2021) (citing Bailey v. City of Ann Arbor, 860 F.3d 382, 387 (6th Cir. 2017)).
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We do not foreclose the possibility that an attorney retained by the government could act
under color of state law. See Polk County v. Dodson, 454 U.S. 312, 324–25 (1981) (concluding
that a public defender “did not act under color of state law in exercising her independent
professional judgment in a criminal proceeding,” but hypothesizing circumstances where a public
defender could be considered a state actor for purposes of Section 1983). But Blackwell failed to
plausibly allege such circumstances here. Nothing in the form, content, or context of Allen’s
emails suggests that he was communicating on the city’s behalf, representing the city’s interests
or beliefs, or operating pursuant to city policies. “Section 1983 does not, as a general rule, prohibit
the conduct of private parties acting in their individual capacities.” Lindsey v. Detroit Ent., LLC,
484 F.3d 824, 827 (6th Cir. 2007). Here, the only plausible inference that can be drawn from the
complaint is that Allen responded in his individual capacity to emails that he deemed personally
insulting.
In sum, absent any indicia that Allen emailed Blackwell on the City’s behalf or pursuant
to City policies, rather than in his personal capacity as a private citizen, Blackwell does not
plausibly allege a sufficient nexus between Allen’s emails and the City. Brentwood Acad., 531
U.S. at 295. Accordingly, the district court did not err in dismissing Blackwell’s Section 1983
claims against Allen on these grounds.
B. Allen as a Public Official
In the alternative, Blackwell argues that the district court failed to consider “any of [his]
allegations that as a high-ranking decision-maker in the City, [Allen] was a government official.”
Appellant Br. at 18. Even assuming that Allen was somehow a city official, this argument too is
unavailing.
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“[N]ot every action undertaken by a person who happens to be a state actor is attributable
to the state.” Waters v. City of Morristown, 242 F.3d 353, 359 (6th Cir. 2001). To determine
whether a public official was acting in his state capacity, we apply the “state-official test,” which
is “simply a version of the Supreme Court's nexus test.” Lindke, 37 F.4th at 1202-03 (explaining
that whether an official “acts pursuant to his governmental duties or cloaked in the authority of his
office is just another way of asking whether his actions are controlled by the government or
entwined with its policies”). Generally, this test is not satisfied unless a state actor’s conduct (1)
occurs “in the course of performing an actual or apparent duty of his office,” or (2) “unless the
conduct is such that the actor could not have behaved as he did without the authority of his office.”
Waters, 242 F.3d at 359 (citing West, 487 U.S. at 49–50). For the same reasons Blackwell failed
to plausibly allege state action under the nexus test, he also fails under the state-official test.
1.
Regarding the first test, responding to emails could conceivably fall within the actual or
apparent duties of a city attorney in some circumstances. But Allen is not “engaged in state action”
every time he communicates via email. Cf. Lindke, 37 F.4th at 1205 (noting that when a city
manager “visits the hardware store, chats with neighbors, or attends church services, he isn’t
engaged in state action merely because he’s ‘communicating’—even if he’s talking about his job”).
As discussed, Blackwell does not allege that the City instructed Allen to send the discriminatory
emails, approved the emails ahead of time, or was otherwise involved in their drafting. And he
does not allege that Allen was acting pursuant to a city statute or municipal code, following an
unofficial city policy, or even acting to advance the City’s interests when he responded to
Blackwell’s meme or email to the Discipline Board. See id. at 1204-05 (“First, no state law,
ordinance, or regulation compelled Freed to operate his Facebook page. In other words, it wasn't
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designated by law as one of the actual or apparent duties of his office.”); see also Naffe v. Frey,
789 F.3d 1030, 1037 (9th Cir. 2015) (rejecting a Section 1983 claim because “county prosecutors
are sometimes authorized to speak on behalf of their employers, [but] [the plaintiff] pleads no facts
to support her allegation that the County authorized or encouraged [the defendant’s] social and
political commentary”). Though he claims that the City tacitly approved the emails after the fact
by paying Allen’s invoice, the invoices themselves show this allegation to be untrue. Even taking
the remaining allegations of the complaint as true, they fail to give rise to an inference that Allen
was acting with actual authority or “exercising his responsibilities [as city attorney] pursuant to
state law” when he emailed Blackwell. West, 487 U.S. at 50.
Nor did Allen claim to represent the City or invoke his status as a city attorney in a way
that would create apparent authority. Compare Van Ort v. Est. of Stanewich, 92 F.3d 831, 839
(9th Cir. 1996) (concluding that a police officer did not act under color of state law during an
attempted robbery because “[a]t no point did [the defendant] purport to be acting as a policeman”),
with Anderson v. Warner, 451 F.3d 1063, 1068-69 (9th Cir. 2006) (holding that a jail commander
acted under state law when he assaulted the plaintiff because he prevented bystanders from
intervening by claiming that he was a “cop,” therefore invoking—and abusing—his law-
enforcement status). The fact that Allen used a non-city email address, and sent many of the emails
from a personal device outside normal city business hours, further undermines Blackwell’s claim
that Allen emailed him pursuant to his role as city attorney. Compare McDade v. West, 223 F.3d
1135, 1140 (9th Cir. 2000) (finding state action where the plaintiff accessed confidential
information by signing into a government database during normal working hours, using a computer
and password supplied to her by the county), with Naffe, 789 F.3d at 1037 (noting that “each Tweet
or post cited by [the plaintiff] is time-stamped very late at night or early in the morning, a fact
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which undermines her claim that [the defendant] blogged and Tweeted during normal business
hours using County resources”).
Accordingly, we conclude that the complaint gives rise only to the inference that Allen was
pursuing a personal interest in responding to Blackwell’s emails, not acting under any actual or
apparent authority. This private conduct, occurring “outside the course or scope of his duties and
unaided by any indicia of actual or ostensible state authority, is not conduct occurring under color
of state law.” Waters, 242 F.3d at 359 (citing McNeese v. Vandercook, 173 F.3d 429 (6th Cir.
1999) (per curiam)).
2.
Nor does Blackwell’s complaint plausibly allege that Allen could not have sent the emails
without the authority of being the city attorney. Taunting Blackwell over email was not a task
“made possible only because [Allen] [was] clothed with the authority of state law.” Honaker v.
Smith, 256 F.3d 477, 484–85 (7th Cir. 2001). Any person with an email address is empowered to
send the objectionable content Blackwell alleges here. See Almand v. DeKalb County, Ga., 103
F.3d 1510, 1515 (11th Cir. 1997) (holding that a police officer’s conduct in breaking in and raping
a woman was a private act, not accomplished because of power he possessed under state law,
because “any thug or burglar could have committed the same violent acts,” and in that respect “he
was no different from any other ruffian”). It did not require special government equipment,
resources, or access, and Allen had no need to “invoke[] the powers of [his] office to accomplish
the offensive act.” McDade, 223 F.3d at 1140; compare id. (finding state action where the
defendant’s status as a state employee allowed her access to a government database, which she
used to obtain confidential information), with Naffe, 789 F.3d at 1037 (finding that a county
prosecutor did not act under color of state law when commenting on politics through his personal
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social media page). On the contrary, Allen could have mocked Blackwell in the exact same fashion
whether he was retained by the City or not. Waters, 242 F.3d at 359 (rejecting a Section 1983
claim because the defendant “would have been in the same position to harass and abuse [the
plaintiff] even if he had not been a city alderman”).
True, Allen’s emails mention the use of a subpoena. However, in context, they are clearly
referring to subpoenaing “Susana Hamad” as part of the Discipline Board investigation that
Blackwell initiated, not threatening to arbitrarily subpoena Blackwell in a vacuum. And the
references to the subpoenas did not concern any proceedings involving the City. Moreover, any
party to a lawsuit could threaten the same. Subpoenas are a basic tool of discovery, not a power
reserved exclusively to a city attorney. In sum, Allen could have sent the same email—including
its insults and subpoena references—using the same email address, whether or not he was retained
by the City. Blackwell therefore fails to plausibly allege an abuse or misuse of government
authority in violation of Section 1983.
Blackwell resists this conclusion, arguing that “the fact remains that [Allen] would not
have sent these malicious emails without Mr. Blackwell’s extensive history with him in his role as
city attorney.” Appellant Br. at 20. But again, Allen’s status as city attorney does not
automatically render every one of his emails a state action. Cf. Lindke, 37 F.4th at 1206-07
(holding that a city manager did not engage in state action by running a Facebook page as a “public
figure”—even though the page listed his city email and the city website, along with a profile photo
of the defendant wearing his city-manager pin—because he “did not operate his page to fulfill any
actual or apparent duty of his office,” and “he didn't use his governmental authority to maintain
it”).
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Nor does the mere fact that Blackwell knew that Allen was an attorney retained by the City
mean that Allen abused his government position to violate Blackwell’s rights. See Naffe, 789 F.3d
at 1038. The focus of our inquiry is not what Blackwell knew about Allen, but rather on how Allen
used his position as an attorney retained by the City to harm Blackwell. Id. at 1038-39. The
complaint fails to plausibly set forth any use or abuse of state power; it merely reiterates that Allen
emailed Blackwell “in his capacity” as city attorney. Absent any plausible factual allegations
backing up this legal conclusion, the Section 1983 claims against Allen fail. Accordingly, the
district court properly granted Allen’s motion to dismiss.
IV.
Turning to the City’s motion to dismiss, the district court correctly held that, because all
claims against Allen failed on the ground that he was not a state actor, any Section 1983 claims
against the City based on Allen’s actions must also fail.
When considering a claim of municipal liability under Section 1983, we ask (1) “whether
the plaintiff has asserted the deprivation of a right guaranteed by the Constitution or federal law,”
and (2) “whether the alleged deprivation was caused by the defendants acting under color of state
law.” Powers v. Hamilton Cnty. Pub. Def. Comm’n, 501 F.3d 592, 606–07 (6th Cir. 2007) (citing
Cash v. Hamilton Cnty. Dep’t of Adult Prob., 388 F.3d 539, 542 (6th Cir. 2004); and Alkire v.
Irving, 330 F.3d 802, 813 (6th Cir. 2003)). Even then, since a municipality “may not be sued
under [Section] 1983 for an injury inflicted solely by its employees or agents,” Monell v. Dep’t of
Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978), a plaintiff must also allege that the
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municipality engaged in a “policy or custom” that was the “moving force” behind the deprivation
of the plaintiff’s rights. Powers, 501 F.3d at 607 (quoting Monell, 436 U.S. at 694).6
Here, Blackwell argues that “[a]s a decisionmaker, Defendant Allen made a deliberate
choice to discriminate against Mr. Blackwell because of his disability and retaliate against Plaintiff
for exercising his First Amendment rights, amounting to a policy pursuant to Monell.” Appellant
Br. at 31.
As discussed above, the complaint fails to plausibly allege that Allen emailed Blackwell
while acting under color of state law. In turn, it fails to plausibly allege that Allen acted in any
official capacity, much less in the capacity of an official with final decision-making authority. The
district court therefore correctly held that Blackwell fails to plausibly state a claim of municipal
liability under Monell. See Monell, 436 U.S. at 694 (explaining that it is only when “execution of
a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts
may fairly be said to represent official policy, inflicts the injury that the government as an entity
is responsible under [Section] 1983” (emphasis added)); see also Morris v. City of Detroit, 789 F.
App’x 516, 519 (6th Cir. 2019) (“Plaintiffs’ Fourth and Fourteenth Amendment claims require
Adams to be a state actor, which in turn requires her to have acted under color of law. However,
as discussed above, Adams was not acting under color of law. Consequently, the City cannot be
liable for Adams’ personal actions not taken under color of state law, and plaintiffs’ claims against
the City fail.”).
6
Illegal policies or customs include: (1) an illegal official policy or legislative enactment; (2) an official
with final decision-making authority ratifying illegal actions; (3) a policy of inadequate training or supervision; or (4)
a custom of tolerance or acquiescence of federal rights violations. Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir.
2013) (citing Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005)).
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The district court likewise did not err in dismissing Blackwell’s ADA claim against the
City. Title II of the ADA provides that “no qualified individual with a disability shall, by reason
of such disability, be excluded from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42
U.S.C. § 12132. “Two types of claims are cognizable under Title II: claims for intentional
discrimination and claims for a reasonable accommodation.” Roell v. Hamilton County, 870 F.3d
471, 488 (6th Cir. 2017) (citing Ability Ctr. of Greater Toledo v. City of Sandusky, 385 F.3d 901,
907 (6th Cir. 2004)).
Blackwell alleges intentional discrimination by the City under Title II. But the district
court correctly read the complaint as premising the City’s ADA liability exclusively on Allen’s
actions as the City’s “agent.” R. 25, PID 409; R. 12, PID 123 (“As a result of Defendant Allen’s
actions, Plaintiff is being denied the benefits of other non-disabled citizens and being subjected to
discrimination because of his disability.” (emphasis added)). We recently held in Jones that
“vicarious liability does not apply to Title II of the ADA or [Section] 505 of the Rehabilitation
Act.” 20 F.4th at 1122. Thus, even assuming that Allen acted as an agent of the City in sending
the emails—which the complaint fails to plausibly allege—Jones squarely forecloses any relief
against the City under Title II of the ADA based on vicarious liability for Allen’s conduct. The
district court properly dismissed all claims against the City.
V.
For the reasons set out above, we AFFIRM the district court’s judgment.
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