Cases of Interest from the U.S. Sixth Circuit

By Dale Conder, Jr.

Laborers’ Int’l Union, Local 860 v. Neff, 29 F.4th 325 (6th Cir. 2022) Ohio juvenile court and its employees’ union tried negotiating a new contract. When the parties could not reach an agreement, the union sued the juvenile court. Because Ohio juvenile courts are an arm of the state, the court held that sovereign immunity barred most of the claims. The Sixth Circuit also rejected the union’s Contracts-Clause claim. Under Sixth Circuit precedent, a Contracts-Clause violation is not actionable under § 1983. The court rejected the union’s request for an  injunction under the Takings Clause because the union had a state-law provision for obtaining just compensation, i.e., filing suit in state  court. The union’s individual-capacity claims failed because qualified immunity protected the individuals. Qualified immunity applied  because there was no precedent clearly establishing that the individuals breached the contract.

Judge Sutton concurred in his opinion to highlight the split of authority on the issue of whether contracts-clause violations are actionable  under § 1983. In his concurring opinion, he urged the Supreme Court to address this issue in an appropriate case.

Lindke v. Tomlinson, 31 F.4th 487 (6th Cir. 2022)

This case arose from a nasty custody battle. In response to the mother’s motion, the state judge entered a personal protective order (PPO) against Lindke, the father. The father had been harassing the mother by assaulting her, threatening her, and sending nude photos of the mother to family and friends. Lindke continued to violate the PPO. The judge issued a second PPO. After the mother obtained sole custody of the child, Lindke’s harassment continued. The judge found that the First Amendment protected most of Lindke’s Facebook posts. But tagging the mother “in a specific Facebook post violated the PPO.” Lindke disagreed with the judge’s conclusion; rather than appeal, Lindke sued the judge in federal court claiming violations of his rights under the First and Fourteenth Amendments. Under Article III, a federal court lacks  jurisdiction if there is not a live case or controversy between the parties. In Lindke, the state-court judge acted in an adjudicatory capacity.  The judge was not adverse to Lindke, she merely applied a state statute based on the law and the facts. Article III does not grant federal  courts jurisdiction in these circumstances because the judge did not act in an enforcement capacity. Therefore, the court lacked subject  matter jurisdiction over the claims against the state-court judge.

Novak v. City of Parma, 33 F.4th 296 (6th Cir. 2022)

Novak decided to exercise the “‘fundamental American right’ of ‘mocking our government officials.’” He did this by creating a Facebook  account that was a knockoff of the Parma police department’s actual page. He then began publishing posts mocking the police, e.g., the page offered “free abortions in a police van.” The police arrested Novak for violating a statute making it illegal to use a computer to disrupt or  impair police functions. Following a grand jury indictment and a trial, the jury acquitted Novak. He then sued the police officers. If his posts  were protected speech, the police could not use protected speech to establish probable cause. The Sixth Circuit, however, stopped short of deciding if the First Amendment protected Novak’s Facebook activity. The court determined that qualified immunity protected the officers. The court also rejected Novak’s Fourth Amendment claim. The court held that it was reasonable for the officers to rely on the warrants issued by a magistrate judge. Novak’s malicious-prosecution  claim failed because he did not show that the officers did not aid in the decision to prosecute. Because Novak failed to establish any threats or orders from the police, his prior-restraint claim failed.

Smith v. Kentucky, 36 F.4th 671 (6th Cir. 2022)

A probation officer working for the state of Kentucky raped plaintiffs on multiple occasions. Plaintiffs sued the governor and the state alleging that the defendants “‘directly violated plaintiffs’ rights . . . to be free from involuntary sexual servitude guaranteed by’” the  thirteenth Amendment. The court rejected plaintiffs’ Thirteenth Amendment claims because the amendment does not create a private cause of action. Also, the ratification of the Thirteenth Amendment did not waive a state’s sovereign immunity.

Carr v. Louisville-Jefferson Cnty., 37 F.4th 389 (6th Cir 2022)

In 2008, the plaintiff entered an Alford plea to second-degree manslaughter. Several years later, the governor pardoned her. She then sued  several police officers, the city, and the county. The district court found that Heck v. Humphrey barred her §1983 claims. The Sixth Circuit reversed. The court held that a full pardon removes all legal consequences of the conviction. The pardon removes the risk of inconsistent  results arising out of the same facts. In other words, Heck prevents using §1983 to collaterally attack a conviction. The full pardon removes  this risk; therefore, Heck did not bar plaintiff’s §1983 action.

Lindke v. Freed, 37 F.4th 1199 (6th Cir. 2022)

Freed was the city manager for Port Huron, Michigan. Freed had a Facebook account that he used to connect with friends and family. In the “About” section, he described himself as “Daddy to Lucy, Husband to Jessie and City Manager, Chief Administrative Officer for the citizens of Port Huron.” He linked to the city’s page and provided his city email. When the pandemic hit, he posted about policies he implemented for  Port Huron. Lindke did not agree with Freed’s handling of the pandemic, and he responded with criticism. Freed deleted Lindke’s comments and blocked Lindke. Lindke believed this violated his First Amendment rights and sued. The district court disagreed and Lindke appealed. The Sixth Circuit held that Freed was not a state actor when posting to his Facebook page. There was no law requiring Freed to maintain a  social-media account as part of his job. Freed’s page was a personal page. He created the account years before the city hired him as city manager. Freed’s page did not belong to the city. For example, when Freed leaves the city-manager job, his successor will not inherit the page. Freed did not use city employees to update or post to his page. The Sixth Circuit rejected other circuits’ reliance on the appearance of the Facebook page, and focused on Freed’s official duties and use of government resources or government employees in determining if the Facebook page was a government page.

Dale Conder, Jr. is a member of the law firm Rainey, Kizer, Reviere & Bell, P.L.C., with offices in Memphis and Jackson, Tennessee. Mr. Conder is a resident in the firm’s Jackson, Tennessee office. He practices in the areas of general insurance defense, employment law, and defense of municipalities and their employees, particularly police officers in § 1983 litigation. Mr. Conder has published and lectured in the areas of trial practice, civil procedure and civil rights litigation. He is a member of DRI and the Tennessee Defense Lawyers Association.