Blackwell v. City of Inkster

596 F.Supp.3d 906

Charles BLACKWELL, Plaintiff,

v.CITY OF INKSTER and Patrick Andre Wimberly, Defendants.

2:21-CV-10628-TGB-EAS

United States District Court, E.D. Michigan, Southern Division.

Signed March 31, 2022

Bonsitu A. Kitaba, Daniel S. Korobkin, American Civil Liberties Union Fund of Michigan, Detroit, MI, Howard W. Burdett, Jr., Winthrop & Weinstine, P.A., Detroit, MI, for Plaintiff.

David W. Jones, Lindsey R. Johnson, Schenk & Bruetsch, PLC, Detroit, MI, for Defendants.

ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS’ MOTION TO DISMISS

(ECF NO. 27)

TERRENCE G. BERG, UNITED STATES DISTRICT JUDGE

On March 22, 2021, Plaintiff Charles Blackwell filed a pro se Complaint against the City of Inkster ("Inkster" or "the City") and Inkster's Mayor, Patrick Andre Wimberly ("Mayor Wimberly") in his individual and official capacities. ECF No. 1. Plaintiff posted a number of comments on the Facebook pages of Inkster's Police Department and Mayor Wimberly criticizing Inkster's government for its lack of transparency surrounding an investigation into alleged embezzlement in the City's government. Defendants deleted these critical comments and blocked Plaintiff from making additional comments on the social media pages. Plaintiff filed the instant suit, alleging that Defendants’ conduct violated his First Amendment right to free speech.

On April 12, 2021, Plaintiff and Inkster stipulated that, while this action proceeded, Plaintiff would be allowed to post comments on social media accounts controlled by Inkster, and the accounts of Mayor Wimberly or Inkster Council Members. Stip. Injunction Order, ECF No. 9, PageID.49-51. However, in early June, 2021, the Inkster employee responsible for managing the city's Instagram page blocked Plaintiff from commenting on the account for approximately three hours. Based on that short denial of access, Plaintiff has asked the Court to hold Defendants in contempt for violating the stipulated preliminary injunction order. Pl's Contempt Mot., ECF No. 17. Blackwell's motion is fully briefed. See ECF Nos. 22, 23.

On June 1, 2021, Defendants moved to dismiss Blackwell's complaint. ECF No. 18. Blackwell subsequently retained counsel and, this time with assistance of counsel, filed an Amended Complaint on July 2, 2021. ECF No. 25. The Court therefore denied Defendants’ Motion to Dismiss as moot. ECF No. 26. In his Amended Complaint, Blackwell asserts two Monell claims against Defendants under 42 U.S.C. § 1983 for: (Count I) violations of the First and Fourteenth Amendments regarding the Inkster Police Department Facebook Page and; (Count II) violations of the First and Fourteenth Amendments regarding Mayor Wimberly's Facebook Page. Am. Compl., ECF No. 25, PageID.285-295. Plaintiff brings this action against Inkster and Mayor Wimberly, in both his official and individual capacities, seeking declaratory and injunctive relief as well as monetary damages. Id. at PageID.270-71, 295. On July 20, 2021, Defendants again moved to dismiss Blackwell's complaint under Federal Rules of Civil Procedure 12(b)(1) and (b)(6). See generally , Def's Mot., ECF No. 27. The motion is fully briefed. See ECF Nos. 29, 30. Finding the facts and legal arguments sufficiently presented in the parties’ briefs, the Court will resolve this motion on the briefs and without oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f). For the reasons explained below, Defendants’ motion will be DENIED in large part, but the motion will be GRANTED IN PART as to the claims against Mayor Wimberly in his individual capacity on the basis of qualified immunity, and those claims will be dismissed with prejudice.

I. Background

Plaintiff Blackwell describes himself as an "activist who tackles corruption, transparency, and open government issues with multiple municipalities in the Metro Detroit area." Am. Compl. ¶ 15, ECF No. 25, PageID.274. In early 2021, Inkster's Parks and Recreation director was accused of embezzling money from the city. Id. at ¶¶ 6, 21, 22, 24, PageID.272, 275-76. Inkster's Police Department investigated the allegations. Am. Compl. Ex. C, ECF No. 25-4. According to Plaintiff, although city officials concluded that the Parks and Recreation director needed to repay the city, they determined that "no further action or discipline" was necessary. Am Compl. ¶ 23, PageID.275. Concerned about this result, Plaintiff says he became suspicious of the possibility that corruption existed in Inkster's Recreation Department and City Hall. Id. at ¶ 28, PageID.276-77.

In March 2021, Inkster's police chief posted a video of himself reading a children's book on the Police Department's Facebook Page. Id. at ¶ 7, PageID.272. On March 18, 2021, Blackwell wrote a comment "underneath the police chief's video implicitly criticizing the chief and urging him to be transparent about [the Mayor's] involvement." Id. at ¶¶ 8; 30-32, PageID.272, 277-78. The page's administrator, an Inkster Police Department employee, deleted Blackwell's comment, and blocked Blackwell from making further comments on the Police Department's page. Id. at ¶¶ 9, 33-34, PageID.272, 278-79. Plaintiff also posted similar critical comments on the Mayor's Facebook Page. Id. at ¶ 11, PageID.273. These comments were also deleted, and Blackwell was also blocked from commenting on the Mayor's page. Id. Specifically, Plaintiff "exposed publicly on [Mayor] Wimberly's municipal Facebook page that [Mayor] Wimberly has owed delinquent property taxes to the City of Inkster while serving as Inkster's mayor." Id. at ¶ 62, PageID.284. Blackwell points out that although his comments on both pages were deleted and he was blocked, other people, who made comments that were not critical, were not blocked, and their comments were not deleted. Id. ¶¶ 10, 12, PageID.273.

a. The social media pages

i. The Inkster Police Department Facebook page

Inkster's Police Department Facebook page was created by Inkster and "[the] page is managed by the Inkster Police ....’ " Am. Compl. Ex. G, PageID.321. The "Additional Information" section of the page explains that:

This page was developed to assist us in providing the highest level of service possible in our community. The hope is that this page will provide an avenue to communicate between the public and the police on breaking news or need to know issues that impact the fine citizens of Inkster ... We welcome your suggestions and/or comments on how well it serves your needs.

Id. at PageID.322. This section also included a policy which stated in part: "Inkster reserves the right, at our sole discretion, to: ... [b]lock users or remove comments if the content posted promotes private businesses, political affiliations, ideologies or positions, or any other third-party advertisements, sales or promotions[.]" Id. According to Blackwell, Inkster's official custom or policy is to delete critical comments or block users who express viewpoints with which it disagrees. Am. Compl. ¶¶ 45-47, ECF No. 25, PageID.281.

ii. The Mayor Wimberly Facebook page

Mayor Wimberly's page is maintained and operated by Wimberly. Am. Compl. ¶ 48, ECF No. 25, PageID.282. According to Blackwell, the page bears a "banner photo above the title ‘Patrick Wimberly-Mayor City of Inkster,’ " that includes "the City of Inkster logo and tagline ‘Inkster Let's Stay Home & Stay Safe.’ " Id. at ¶ 52, PageID.282. Blackwell claims, upon information and belief, that "Defendant Wimberly maintains and controls a personal Facebook page for his own personal use separate from the Patrick Wimberly-Mayor City of Inkster municipal Facebook page." Id. at ¶ 54. Blackwell further alleges that Mayor Wimberly uses the page at issue here "to disseminate information about city-related activities and issues, and routinely shares information from other municipal Facebook pages," and that Mayor Wimberly "posts live videos of himself at City of Inkster public buildings with the U.S. flag behind him addressing [the] public and followers of the Facebook page." Id. at ¶¶ 55, 57, PageID.283. Mayor Wimberly "hosted a Community Conversation with Facebook users on January 27, 2021 which was advertised on Facebook as a live streamed conversation with the Mayor from his government office. The event was live streamed using the Patrick Wimberly-Mayor City of Inkster Facebook page." Id. at ¶ 59. Blackwell alleges that the Defendants’ use of Mayor Wimberly's page "and engagement with the public in open dialogue about city issues demonstrate their intent to create a forum to engage in an exhange [sic] of ideas with the public, not a one-way outlet for government speech." Id. at ¶ 60.

II. Standard of Review

A party may raise a defense to a claim for lack of subject-matter jurisdiction by motion. Fed. R. Civ. P. 12(b)(1). A party may move to dismiss under 12(b)(1) by making either a facial or factual attack. United States v. Ritchie , 15 F.3d 592, 598 (6th Cir. 1994). A factual attack challenges whether subject matter jurisdiction exists as a factual matter. Id. When considering a 12(b)(1) motion premised on a factual attack, the Court need not assume the truthfulness of the plaintiff's factual allegations and may weigh evidence to "satisfy itself" that it does or does not have jurisdiction to hear the case. Id.

Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a court to dismiss a lawsuit if it "fails to state a claim upon which relief can be granted." Rule 8(a) requires only that pleadings contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Though this standard is liberal, courts have held that it requires plaintiffs to provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action" in support of their grounds for entitlement to relief. Albrecht v. Treon , 617 F.3d 890, 893 (6th Cir. 2010) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).

In...