Ray SCOTT, Plaintiff-Appellee, v. Tobias J. TEMPELMEYER, City Attorney, Defendant-Appellant.
No. 16-2404
United States Court of Appeals, Eighth Circuit.
August 16, 2017
Rehearing and Rehearing En Banc Denied September 21, 2017
867 F.3d 1067
COLLOTON, Circuit Judge.
Submitted: November 16, 2016
“The law is well-settled that for an insured to obtain a penalty for an insurance company‘s vexatious refusal to pay a claim, the insured must show that the insurance company‘s rеfusal to pay the loss was willful and without reasonable cause or excuse....” Watters v. Travel Guard Int‘l, 136 S.W.3d 100, 108 (Mo. Ct. App. 2004). There is no evidence in the record to support the contention that any refusal to pay was without reasonable cause or excuse. CIC timely paid the undisputed ACV and invoked the appraisal process. While the umpire determined the ACV to be $1,056,000, which was $256,000 more than the $800,000 CIC paid the Trust, CIC promptly paid that difference. This conduct belies the Trust‘s assertion that CIC acted unreasonably. Furthermore, in its submission of its proof of loss, the Trust calculated an ACV of $1,400,000. Faced with a $600,000 calсulation difference, it was not unreasonable for CIC to pay the Trust the undisputed amount and invoke appraisal. We also note that CIC‘s initial ACV calculation was closer to the appraisers’ (eventual) calculation than was the Trust‘s. The district court properly granted CIC summаry judgment on the Trust‘s vexatious refusal claim.
III. CONCLUSION
For the foregoing reasons, we affirm the grant of summary judgment in favor of CIC.
Thomas J. Culhane, Patrick Ryan Guinan, Matthew B. Reilly, Erickson & Sederstrom, Omaha, NE for Defendant-Appellant
Before COLLOTON, BEAM, and GRUENDER, Circuit Judges.
COLLOTON, Circuit Judge.
Ray Scott sued the City of Beatrice, Nebraska, Mayor Dennis Schuster, and City Attorney Tobias Tempelmeyer, claiming violations of his First and Fourth Amendment rights. The district court granted summary judgment for the City and Schuster and partial summary judgment for Tempelmeyer on Scott‘s Fourth Amendment claim. The court denied Tempelmeyer qualified immunity on Scott‘s First Amendment claim alleging that Tеmpelmeyer retaliated against Scott for exercising his right to free speech. Tempelmeyer appeals the denial of qualified immunity. We conclude that the First Amendment right asserted by Scott—a right to be free from retaliatory regulatory enforcement that is otherwise suрported by probable cause—was not clearly established. We therefore reverse the district court‘s order denying in part Tempelmeyer‘s motion for summary judgment based on qualified immunity.
I.
Beginning in 2005, Scott was the lessor and operator of the Villa Motel, a two-building motel locatеd in Beatrice, Nebraska, and owned by Wayne Schulz. During his tenure, Scott engaged in a long-running dispute with the City and Tempelmeyer regarding the Motel‘s failure to pay lodging taxes. In December 2009, Tempelmeyer warned Scott and Schulz by letter that if they did not remit the unpaid lodging taxes by January 8, 2010, the City would tаke legal action to collect the taxes or prosecute them for zoning violations.
In November 2010, Tempelmeyer received photographs of the Motel‘s interior and basement from the lessee of an adjacent commercial building. After reviewing the photоgraphs, Tempelmeyer directed Dennis Mitchell, the chief building inspector for the City, to inspect the property for safety issues with Sean Lindgren, the deputy state fire marshal. Mitchell obtained a search warrant from a local judge and inspected the Motel, with Lindgren and another city employee.
Meanwhile, Mitchell told Tempelmeyer that he did not think the issues were life-threatening or that the Motel should be condemned—i.e., adjudged unfit for occupancy. According to Mitchell, he had never been ordered to condemn a property after he concluded that it did not present life-threatening issues. Tempelmeyer nonetheless told Mitchell to condemn the Motel. The City Code of Beatrice incorporates the International Property Maintenance Code, which provides that an official may give notice of condemnation if he “determines” or “has grounds to believe” that a viоlation has occurred. Int‘l Prop. Maint. Code § 107.1 (Int‘l Code Council 2003).
Scott sued the City of Beatrice, Mayor Schuster, and City Attorney Tempelmeyer under
The district court granted summary judgment for the City and Mayor Schuster. The court also granted summary judgment for Tempelmeyer on the Fourth Amendment claim, but denied his motion
We have jurisdiction to review an interlocutory appeal of the denial of qualified immunity under the collateral order doctrine. Mitchell v. Forsyth, 472 U.S. 511, 528-30, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Qualified immunity shields a government official from suit when his conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Tempelmeyer is entitled to qualified immunity unless the right asserted by Scott was established “beyоnd debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). Immunity protects “all but the plainly incompetent or those who knowingly violate the law.” White v. Pauly, — U.S. —, 137 S.Ct. 548, 551, 196 L.Ed.2d 463 (2017) (per curiam) (quoting Mullenix v. Luna, — U.S. —, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (per curiam)). We review the district court‘s ruling on qualified immunity de novo.
II.
Scott argues that Tempelmeyer ordered Mitchell to inspect the Villa Motel and to condemn the property in retaliаtion for Scott‘s speech about the tax dispute between the City and the Motel. It is settled at a high level of generality that the First Amendment prohibits government officials from retaliating against a citizen for exercising his right of free speech. Hartman v. Moore, 547 U.S. 250, 256, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006). But to establish a First Amendment retaliation clаim in a particular case, a plaintiff must show (1) that he engaged in a protected activity, (2) that the defendant‘s actions caused an injury to the plaintiffs that would chill a person of ordinary firmness from continuing to engage in the activity, and (3) that a causal connection exists between the retaliatory animus and the injury. Bernini v. City of St. Paul, 665 F.3d 997, 1007 (8th Cir. 2012).
In Osborne v. Grussing, 477 F.3d 1002, 1006 (8th Cir. 2007), this court crafted a causation standard for the third element in a case involving enforcement of county environmental regulations. The plaintiffs in Osborne sought relief from valid adverse regulatory action on the ground that it was unconstitutional retaliation for speech protected by the First Amendment. The lawsuit claimed that a county in Minnesota and four county officials retaliated against the plaintiffs for criticizing the county‘s lax enforcement of regulations. This court said that the plaintiffs
must make the same showing that is required to establish a claim of selective prosecution—“that he has been singled out for prosecution while others similarly situated have not been prosecuted for conduct similar to that for which he was prosecuted [and] that the government‘s discriminatory selection of him for prosеcution was based upon ... his exercise of his first amendment right to free speech.”
Id. (alteration in original) (quoting United States v. Catlett, 584 F.2d 864, 866 (8th Cir. 1978)).
Shortly after Osborne, however, this court in Williams v. City of Carl Junction, 480 F.3d 871 (8th Cir. 2007), elaborated on the causation element of a First Amendment retaliation claim. The court first ob
Williams involved a claim that a mayor harbored retaliatory animus agаinst the plaintiff citizen. The plaintiff alleged that the mayor induced the police chief and the city administrator to issue (or to cause other officers to issue) citations to the plaintiff for violating various municipal ordinances. Some of this activity was regulatory enforcement: citations for violating set-back regulations, for improperly storing construction materials, and for overgrown grass and weeds. 480 F.3d at 874. This court concluded that even where intervening actions by a prosecutor were not present, the rule of Hartman should apply. The court reasоned that because the plaintiff claimed that an actor with retaliatory animus (the mayor) induced other actors (police or code-enforcement officers) to take adverse action against the plaintiff, the absence of probable cause would bridge the gap between the two actors and show that retaliatory motive caused the action. Id. at 876. Conversely, said the court, “the presence of probable cause would necessarily eliminate the possibility that a causal link between the Mayor‘s retaliatory аnimus and the officers’ ‘prosecution’ could be established.” Id. at 876-77.
Williams was later criticized by one judge of this court for extending Hartman to “an ordinary retaliation claim, i.e. ‘where the government agent allegedly harboring the animus is also the individual allegedly taking the adverse action.‘” Cross v. Mokwa, 547 F.3d 890, 904 (8th Cir. 2008) (Bye, J., concurring in part, dissenting in part, and concurring in the judgment in part) (quoting Hartman, 547 U.S. at 259, 126 S.Ct. 1695). It is debatable whether Williams extended Hartman quite that far: Williams appeared to rely on the separation between the alleged retaliatory animus of the mayor and the adverse action taken by police or code-enforcement officers. 480 F.3d at 876. Yet this court in Smithson v. Aldrich, 235 F.3d 1058, 1063 (8th Cir. 2000), Cross, 547 F.3d at 896-97 (majority opinion), id. at 904 (opinion of Bye, J.), McCabe v. Parker, 608 F.3d 1068, 1075 (8th Cir. 2010), and Peterson v. Kopp, 754 F.3d 594, 602 (8th Cir. 2014), required an absеnce of probable cause to prove a First Amendment retaliation claim against a law enforcement officer who allegedly both harbored animus and made an arrest based on the animus. In Reichle v. Howards, 566 U.S. 658, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012), the Supreme Court—relying in part on this court‘s decision in McCabe—held that there was no clearly established right to be free from a retaliatory arrest that is otherwise supported by probable cause. Id. at 664-70, 132 S.Ct. 2088.
In light of all of this precedent, Scott cannot show a clearly established
Mitchell‘s condemnation of the Motel was supported by probable cause. Under the Code, a structure must be condemned when it is “found by the code official to be unsafe, or when [it] is found unfit for human occupancy, or is found unlawful.” Int‘l Prop. Maint. Code § 108.1. A structure is “unfit for human occupancy” when, among other things, it is insanitary, contains filth and contamination, or lacks maintenance.
Because there was probable cause to support Mitchell‘s regulatory еnforcement action against the Motel, Tempelmeyer is entitled to qualified immunity on Scott‘s First Amendment retaliation claim. The district court‘s order denying in part Tempelmeyer‘s motion for summary judgment based on qualified immunity is reversed.
Brandon KELLER, Petitioner-Appellant, v. Chad PRINGLE, Warden, Respondent-Appellee.
No. 16-3175
United States Court of Appeals, Eighth Circuit.
August 16, 2017
Rehearing and Rehearing En Banc Denied September 21, 2017
Submitted: May 11, 2017