Catherine Wilkerson v. Kevin Warner
545 F. App'x 413
6th Cir.2013Background
- Protester Wilkerson assisted Coleman during the Tanter Speech incident at the University of Michigan on Nov. 30, 2006; Lloyd and HVA personnel treated Coleman while Wilkerson questioned their care and Lloyd allegedly directed Warner to remove Wilkerson.
- Wilkerson was detained and removed from the hallway by Officer Warner; she was not formally arrested, but detained for about 20–30 minutes in a stairwell.
- A police report by Warner and reports by West and Conners supported charges against Wilkerson for resisting or obstructing officers and HVA personnel; she was later acquitted of the state misdemeanor charges.
- Detective Mathews investigated and sought charges; the prosecutor charged Wilkerson with resisting or obstructing Warner and HVA personnel; ammonia inhalants were later removed from HVA vehicles.
- Wilkerson filed suit in 2009 alleging First Amendment retaliation, Fourth Amendment excessive force and false imprisonment, and state-law claims; district court granted summary judgment for all defendants, which this court partly reversed and remanded on certain Fourth Amendment and state-law claims.
- The court reverses as to Officer Warner on Wilkerson’s Fourth Amendment excessive force claim and state-law assault and battery claims, and affirms the district court’s judgment on all other claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Lloyd was a state actor under §1983 | Lloyd acted in concert with police or under state authority via statute. | Lloyd was private; no joint action or state authority. | Lloyd not a state actor; no concerted action established. |
| Whether Wilkerson's contemporaneous criticism was protected by the First Amendment | Concomitant criticisms of Lloyd and treatment during Coleman’s care were protected. | Lloyd not a state actor; criticism of non-state actors has no First Amendment basis here. | Claims against Lloyd and Warner for retaliation were rejected; Warner entitled to qualified immunity; Lloyd private actor. |
| Whether other defendants can be liable for First Amendment retaliation | Contemporaneous and post-incident speech by Wilkerson could support retaliation claims by multiple defendants. | Speech related to public controversy and criticism; no state action linkage for some defendants. | Affirmed dismissal of retaliation claims against others; limited protection to contemporaneous speech absent state action linkage. |
| Whether Warner’s seizure, detention, excessive force, and related prosecutions violate the Fourth Amendment and state-law claims | Seizure was unsupported by probable cause; force was excessive; false imprisonment/malicious prosecution possible. | Warner had probable cause and reasonable suspicion; force was reasonable; reports supported prosecution. | Summary judgment reversed on excessive force and assault/battery; qualified immunity issues remain; other Fourth Amendment and state-law claims affirmed or dismissed accordingly. |
Key Cases Cited
- Adickes v. S.H. Kress & Co., 398 U.S. 144 (S. Ct. 1970) (private action may be state action when private party conspires with state actors)
- Dennis v. Sparks, 449 U.S. 24 (U.S. 1980) (private party liable when conspiratorial with state actors)
- Moore v. City of Paducah, 890 F.2d 831 (6th Cir. 1989) (civil conspiracy evidence; joint action with state actor)
- Hooks v. Hooks, 771 F.2d 935 (6th Cir. 1985) (test for civil conspiracy and state action)
- Hartman v. Moore, 547 U.S. 250 (U.S. 2006) (prosecutorial retaliation requires absence of probable cause; protected by First Amendment)