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Scott v. Schuster

United States District Court, D. Nebraska

May 19, 2016

RAY SCOTT, Plaintiff,
v.
DENNIS M. SCHUSTER, In his Official and Individual Capacity, CITY OF BEATRICE, Nebraska, and TOBIAS J. TEMPELMEYER, City Attorney, Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf, Senior United States District Judge

         This is a 42 U.S.C. § 1983 action asserting claims under the First and Fourth Amendments. (Filings 35, 43.) Plaintiff Ray Scott alleges that he exercised his First Amendment right to free speech by protesting the City of Beatrice’s imposition of a lodging tax on his business, which was renting living quarters to tenants in a two-building property called the “Villa Motel” in Beatrice, Nebraska. Plaintiff asserts that the defendants retaliated against him for objecting to payment of the tax by conducting a sham inspection-without Plaintiff’s permission or a warrant-of the property in which Plaintiff held a leasehold interest, which led to retaliatory condemnation of the property, effectively putting Plaintiff out of business.

         On March 2, 2016, I granted in part and denied in part the defendants’ motion for summary judgment, leaving Plaintiff’s First Amendment retaliation claim against defendant Tobias J. Tempelmeyer in his individual capacity as the only remaining claim. (Filing 71.) Tempelmeyer now moves to alter or amend the court’s prior order on summary judgment (Filing 73) to grant him qualified immunity; to file an amended answer (Filing 76) to plead an additional affirmative defense of absolute and/or prosecutorial immunity; and for summary judgment on Plaintiff’s First Amendment claim against him on the basis of absolute and/or prosecutorial immunity (Filing 77).

         A. Motion to Alter or Amend

         Pursuant to Fed. R. Civ. P. 59(e), defendant Tempelmeyer has filed a motion to alter or amend the court’s prior order denying him qualified immunity as to Plaintiff’s First Amendment retaliation claim. “A district court has broad discretion in determining whether to grant or deny a motion to alter or amend [a] judgment pursuant to Rule 59(e) . . . .” United States v. Metro. St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006). Rule 59(e) motions serve the limited function of correcting “‘manifest errors of law or fact or to present newly discovered evidence.’” Id. (quoting Innovative Home Health Care v. P.T.-O.T. Assoc. of the Black Hills, 141 F.3d 1284, 1286 (8th Cir. 1998)). “Such motions cannot be used to introduce new evidence, tender new legal theories, or raise arguments which could have been offered or raised prior to entry of judgment.” Metro. St. Louis Sewer Dist., 440 F.3d at 933.

         Because Tempelmeyer does not present newly discovered evidence, I need only to determine whether my previous analysis regarding Tempelmeyer’s entitlement to qualified immunity was manifestly erroneous. Tempelmeyer argues that I incorrectly used a three-prong test under Peterson v. Kopp, 754 F.3d 594, 598 (8th Cir. 2014), to analyze Plaintiff’s First Amendment claim when I should have used a four-part test. Specifically, Tempelmeyer contends that instead of analyzing only whether (1) Plaintiff “engaged in a protected activity, (2) the government official took adverse action against [Plaintiff] that would chill a person of ordinary firmness from continuing in the activity, and (3) the adverse action was motivated at least in part by the exercise of the protected activity, ” id. at 602, I should have also considered a fourth prong-that is, lack of probable cause or arguable probable cause for the government action. (Filing 75, Def.’s Br. Supp. Mot. Alter at CM/ECF pp. 6-11.) Tempelmeyer asserts that because “probable cause” supported the inspection and condemnation of the Motel, he is entitled to qualified immunity.[1]

         Peterson-one of the cases on which Tempelmeyer relies-expressly limits use of the fourth “probable cause” prong to “retaliatory arrest cases.” Peterson, 754 F.3d at 602 (“In retaliatory arrest cases, we have identified a fourth prong: lack of probable cause or arguable probable cause.” (citing retaliatory arrest cases)). The case now before me is not a retaliatory arrest case, nor is it a case involving the issuance of citations for violations of the city’s municipal codes or a criminal prosecution.[2]Further, the Eighth Circuit Court of Appeals has very recently applied the three-prong test in a First Amendment retaliation case involving a governmental department’s investigation and inquiries of a financial advisor who publicly engaged in protected political speech. Bennie v. Munn, No. 14-3473, F.3d, 2016 WL 2731577, at *4 (8th Cir. May 11, 2016) (citing three-prong test for analyzing First Amendment retaliation claim; fourth “probable cause” prong not mentioned as part of test). Under such circumstances, it was not a “manifest error of law” to apply the three-part test in this case.

         Further, it should be noted that the Peterson court reversed the district court’s grant of summary judgment based on qualified immunity on the plaintiff’s First Amendment retaliatory use-of-force claim because “[a] reasonable jury could conclude . . . that [the public transit officer] pepper sprayed [the plaintiff] in retaliation for asking for his badge number, and [the plaintiff’s] First Amendment right was clearly established at the time of the incident.” Peterson, 754 F.3d at 603 (stating that whether transit officer pepper-sprayed plaintiff “even in part-because of his protected speech” is “generally a jury question . . . [unless] the question is so free from doubt as to justify taking it from the jury” and that plaintiff had presented “affirmative evidence that [the officer] pepper[-]sprayed him in retaliation for criticizing him and asking for his badge number” (internal quotation and citation omitted)).

         Here, as in Peterson, a reasonable jury could conclude that Tempelmeyer ordered the inspection and condemnation of the Motel because of Plaintiff’s dispute with the City of Beatrice regarding the applicability of a certain tax on his business property, and Plaintiff’s First Amendment right to so challenge the City was clearly established at the time of the alleged government retaliation. Therefore, and as I previously concluded, “defendant Tempelmeyer is not entitled to qualified immunity on [plaintiff] Scott’s First Amendment claim.” (Filing 71 at CM/ECF p. 10.)

         Tempelmeyer’s motion to alter or amend (Filing 73) shall be denied.

         B. Motion to Amend Answer

         In response to a footnote in the court’s previous summary-judgment order that “[t]he defendants do not argue that Tempelmeyer is entitled to an immunity defense other than qualified immunity, such as prosecutorial immunity, ” (Filing 71 at CM/ECF p. 6 n.3), Tempelmeyer moves to amend his answer to include the affirmative defense of absolute and/or prosecutorial immunity. (Filing 76.)

         Unless a party seeks to amend a pleading “once as a matter of course, ” which is not the case here, Fed.R.Civ.P. 15(a)(2) allows a party to amend “only with the opposing party’s written consent or the court’s leave, ” and “[t]he court should freely give leave when justice so requires.” This rule “encourages the court to look favorably on requests to amend, ” and “the grant or denial of leave to amend is a matter that is within the discretion of the trial court.” 6 Charles Alan Wright, et al., Federal Practice and Procedure § 1484 (3d ed. Westlaw 2016).

         Because the question of whether Tempelmeyer is entitled to immunity, of whatever type, has been at issue throughout this case, Plaintiff would not be unfairly surprised or prejudiced by allowing Tempelmeyer to amend his answer to assert absolute and/or prosecutorial immunity. Further, allowing the amendment will hasten the resolution of this case by allowing the court to address an issue that should be decided by the court before trial. Pearson v. Callahan, 555 U.S. 223, 232 (2009) (“we repeatedly have stressed ...


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