                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0012n.06

                                            No. 12-5661                                   FILED
                                                                                      Jan 04, 2013
                           UNITED STATES COURT OF APPEALS                       DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT


MARSHA LILLY,                                             )
                                                          )        ON APPEAL FROM THE
       Plaintiff-Appellant,                               )        UNITED STATES DISTRICT
                                                          )        COURT FOR THE MIDDLE
v.                                                        )        DISTRICT OF TENNESSEE
                                                          )
CITY OF CLARKSVILLE, TENNESSEE; AL                        )                           OPINION
ANSLEY, Chief of Police for the City of                   )
Clarksville, Tennessee; PHIL ASHBY, Police                )
Officer of the City of Clarksville, Tennessee,            )
                                                          )
       Defendants-Appellees.                              )
                                                          )


BEFORE: CLAY, GILMAN, and McKEAGUE, Circuit Judges.

       McKEAGUE, Circuit Judge. Defendant Phil Ashby, a Clarksville Police Officer, stated

that he would not share confidential information with Plaintiff’s employer while Plaintiff was

employed there because, during the execution of a search warrant, the police had found several

documents that linked plaintiff to a drug dealer. Plaintiff brought suit against, inter alia, the City

of Clarksville, and pleaded, inter alia, a municipal-liability race discrimination claim. The district

court granted summary judgment in favor of defendants on all counts. Plaintiff appeals the dismissal

of her municipal-liability race discrimination claim. We AFFIRM.

                                         BACKGROUND

       Plaintiff-appellant, Marsha Lilly, owned 808 Sports Bar & Grille (“Club 808”) in Clarksville,

Tennessee. Prior to the opening of the club but after Lilly had signed the lease, a known drug dealer
No. 12-5661
Lilly v. City of Clarksville, et al.

was arrested on “a sealed indictment for narcotics violations” after he left Club 808. R. 21-24,

Ansley Affid. ¶ 12, Page ID# 320. After the arrest, a search warrant was executed at the drug

dealer’s residence. During the execution of the warrant, police found a copy of the Club 808 lease;

a copy of plaintiff’s cashier’s check for the lease’s security deposit; and a document from First

Choice Moving and Storage signed by the drug dealer and relating to the rental, lease, and purchase

of equipment provided to Club 808. R. 40-11, Lilly Dep. at 216-17, Page ID# 1264-65.

        In August 2009, plaintiff accepted a job as a civilian criminal investigative supervisor with

the Army at Fort Campbell Criminal Investigation Division (“CID”). Around November 2009, a

Tennessee Bureau of Investigation agent informed a Clarksville Police Officer, Agent Pace, that

plaintiff had been hired by Fort Campbell CID. R. 21-25, Pace Dep. at 13, Page ID# 363. Pace

informed the Tennessee Bureau of Investigation agent of the documents that were found during the

execution of the search warrant. Pace stated that he found the drug dealer’s possession of the

documents “suspicious.” Id. at 18, Page ID# 366. The Tennessee Bureau of Investigation agent told

Pace that she intended to inform Fort Cambell CID of the information disclosed by Pace. Id. at 20,

Page ID# 367. On the same evening, Pace received a call from a Fort Campbell CID agent asking

about plaintiff’s connection to the drug dealer. Pace told the agent the same information that he had

told the Tennessee Bureau of Investigation agent. Id.

        In December 2009, Fort Campbell CID sent two agents to obtain copies of the documents

discovered during the execution of the search warrant. When the Fort Campbell agents arrived, they

met with Pace and Agent Hamilton, the affiant on the search warrant of the drug dealer’s residence.

During the meeting, Ashby joined the group and stated that he would not share any confidential case

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information with Fort Campbell CID while plaintiff was employed there because of her connection

to the drug dealer. Id. at 27, Page ID# 372. Plaintiff was ultimately terminated from her position

at Fort Campbell.

        Prior to this meeting, Lilly was investigated by the Tennessee Department of Insurance

regarding the licensing of the security company that serviced Club 808. Lilly believed the

investigation was initiated by Detective Finley of the Clarksville Police Department. Plaintiff

complained to Ashby regarding an alleged letter that she believed had been written by Finley. Ashby

said he would investigate it and get back to her. After speaking with Finley, Ashby determined the

complaint was meritless and did not investigate the claim further, contact plaintiff, or write a report.

        After her termination from Fort Campbell CID, plaintiff brought suit against Ashby, Chief

Al Ansley of the Clarksville Police Department, and the City of Clarksville. In her complaint, she

alleged federal constitutional and state-law claims, including a claim that the City was liable for

depriving her of the equal protection of the law under the Fourteenth Amendment.

        The City filed a motion for summary judgment in February 2012, as did Ashby and Ansley

in a separate motion. Plaintiff responded and conceded many of her claims against Defendants. The

district court ultimately granted summary judgment in favor of Defendants on all claims. Plaintiff

appeals this decision, but limits her argument to the contention that the district court erred when it

granted summary judgment on her municipal-liability race discrimination claim.

                                       STANDARD OF REVIEW

        We review the district court’s grant of summary judgment de novo. Coble v. City of White

House, 634 F.3d 865, 868 (6th Cir. 2011). Summary judgment is appropriate where there is no

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Lilly v. City of Clarksville, et al.

genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(a). We review the evidence and draw all reasonable inferences in the light most favorable

to the nonmoving party. Coble, 634 F.3d at 868.

                                             ANALYSIS

        To prevail on her § 1983 claim for racial discrimination,1 plaintiff must prove (1) defendants

acted under state law, and (2) she suffered a deprivation of a constitutional right as a result of that

action. Thomas v. City of Chattanooga, 396 F.3d 426, 429 (6th Cir. 2005). Plaintiff argues that the

City itself is liable, requiring her to establish municipal liability. To establish municipal liability,

the plaintiff must prove (1) the existence of a municipal policy or custom and (2) a direct causal link

between the policy or custom and the alleged constitutional deprivation. City of Canton v. Harris,

489 U.S. 378, 385 (1989).

        Plaintiff spends the entirety of her brief arguing about whether the municipality may be held

liable but never indicates the basis for claiming that she was deprived of a constitutional right. We

construe her claim as one for racial discrimination in violation of the equal protection clause, which

requires that she prove that a state actor purposefully discriminated against her on the basis of her

race. See Vill. of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 265 (1977);



        1
         Plaintiff brought a number of claims in the district court. However, all of Plaintiff’s
arguments to this court relate to her § 1983 racial discrimination claim against the City itself. To the
extent that Plaintiff may be attempting to appeal any other claims, she has failed to address those
claims in her brief. Therefore, we need consider only the § 1983 municipal-liability race
discrimination claim because all of Plaintiff’s other claims were waived. Ewolski v. City of
Brunswick, 287 F.3d 492, 516-17 (6th Cir. 2002); Ahlers v. Schebil, 188 F.3d 365, 374 (6th Cir.
1999).

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Washington v. Davis, 426 U.S. 229, 239 (1976). She argues that Ashby’s statement to the Fort

Campbell CID agents was motivated by a racially discriminatory intent or purpose and that the

statement led to her termination at Fort Campbell CID. Beyond relying on the statement itself, she

relies on prior employment discrimination cases brought against the city between 2002 and 2006,2

depositions (presumably from those cases),3 and Ashby’s failure to fully investigate the alleged letter

written by Finley.

        The evidence provided by plaintiff would not support a jury finding that Ashby’s statement

to Fort Campbell CID agents was motivated by a racially discriminatory intent or purpose.4 Nothing

in Ashby’s statement indicates that he was motivated by a racially discriminatory intent or purpose.

Plaintiff’s only evidence of alleged racial discrimination by Clarksville Police Officers appears to

have occurred prior to 2006. It is unclear to us how this past conduct establishes that Ashby’s

statement in 2009 was motivated by a racially discriminatory intent or purpose. And Ashby’s failure

to fully investigate Finley’s alleged letter does not support a finding of racially discriminatory intent



        2
        These appear to have been employment discrimination cases alleging a failure to promote
on the basis of race and appear to have been brought by police officers.
        3
        It is unclear when most of these depositions were taken. A number of them indicate that
they were taken in October 2003. The depositions do not appear to be in the record.
        4
         Plaintiff claims Ashby’s statement was defamatory. A statement of opinion will not
constitute defamation unless a statement implies an allegation of “undisclosed defamatory facts as
the basis of the opinion.” Orr v. Argus-Press Co., 586 F.2d 1108, 1114 (6th Cir. 1978). The facts
underlying Ashby’s decision to not share confidential information with Fort Campbell CID were all
true and were disclosed, as were the facts underlying the opinion that plaintiff’s relationship to a drug
dealer was suspicious. Thus, the statements were not defamatory. 99 Am. Jur. 3d Proof of Facts
§ 393.

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or purpose.5 Thus, she has failed to show the requisite discriminatory intent or purpose, and her

claim therefore fails as a matter of law.

                                            CONCLUSION

        For the foregoing reasons, we AFFIRM the decision of the district court.




        5
         Plaintiff also cites to her deposition where she mentioned an alleged statement by an
unknown club owner, who stated that an unknown police officer called her business a “gang banger
club.” R. 40-11, Pl. Dep. at 64-65, Page ID# 1245-46. She also refers to another person who
supposedly read a report from the police department that said her club was a “gang banger club.”
Id. at 111-12, Page ID# 1251-52. Both of these statements constitute hearsay, which courts may not
consider at the summary judgment stage. Jacklyn v. Schering-Plough Healthcare Prods. Sales
Corp., 176 F.3d 921, 927 (6th Cir. 1999). However, even if we considered this evidence, it would
not indicate that Ashby’s statement was motivated by a racially discriminatory intent or purpose.

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