               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 18a0008n.06

                                       Case No. 16-2741

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                               FILED
                                                                         Jan 05, 2018
ELISE HILTON, et al,                              )                  DEBORAH S. HUNT, Clerk
                                                  )
       Plaintiffs-Appellants,                     )
                                                  )       ON APPEAL FROM THE UNITED
v.                                                )       STATES DISTRICT COURT FOR
                                                  )       THE WESTERN DISTRICT OF
CATHERINE MISH, et al.,                           )       MICHIGAN
                                                  )
       Defendants-Appellees.                      )




BEFORE: SILER, CLAY, and WHITE, Circuit Judges.

       SILER, Circuit Judge. Elise and Ed Hilton, individually, and as next friends of their

developmentally-disabled daughter, EH (collectively, the “Hiltons”), appeal the district court’s

dismissal of their complaint. They argue that the district court erred in three respects. They

allege that Catherine Mish, City Attorney for Grand Rapids, was acting under color of state law

when she sent two emails from her City email to a private individual. Second, they allege that

Mish’s comments were retaliatory conduct under clearly established First Amendment law.

Third, they allege that the district court erred in dismissing their intentional infliction of

emotional distress (“IIED”) claim. We affirm.1



       1
          We assume without deciding that (1) Mish was acting under color of state law when she
sent the emails and (2) the Hiltons have established a constitutional violation.
Case No. 16-2741, Elise Hilton, et al. v. Catherine Mish, et al.


                       FACTUAL AND PROCEDURAL BACKGROUND

        I.       Parties

       At the time relevant to this case, Elise worked at the Acton Institute (“Acton”), a political

think tank and advocacy group located in the City of Grand Rapids (“City”).

       The City is a Michigan municipal corporation. As City Attorney, Mish’s duties included:

      Acting as the legal advisor for the City and its various bodies;
      Litigating cases for the City and its bodies;
      Reviewing all contracts, bonds and other instruments for the City and its bodies;
      Issuing legal opinions when requested to do so by any of the City’s bodies and officials;
      Maintaining copies of all franchises granted by the City and all contracts and agreements
       entered into by the City; and
      Investigating citizen complaints concerning, among other things, misapplication of the
       City’s funds.

        II.      Factual/Procedural Background

       In January 2012, EH2 was a student at Hope Academy in Grand Rapids, a school

intended to help individuals with special needs. One day at school, EH acted up and the

Academy staff told her to leave the school. After EH left the school, a stranger lured her into a

house, and over the course of the next several days, repeatedly raped her. Eventually, EH

escaped from the house and was later found in an abandoned building.

       The Hiltons asked the City for help. After interviewing EH and the Hiltons, a Grand

Rapids Police Department (“GRPD”) detective opined that EH would make a “pathetic witness”

due to her mental impairments. The GRPD declined to investigate further, and the prosecutors

declined to file charges.

       In 2013, the Hiltons filed a civil action in the Western District of Michigan against Hope

Academy and GRPD. Among other violations, the Hiltons alleged that GRPD violated their

equal protection rights because it had refused to extend police resources to EH based on adverse

       2
           EH was a minor at the time of the incidents set forth in the complaint.

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Case No. 16-2741, Elise Hilton, et al. v. Catherine Mish, et al.


considerations of EH’s intellectual disability. In 2016, the district court granted the City’s and

GRPD’s motion to dismiss.

       In early 2014, Acton applied to the City for real and personal property tax exemptions

that the City initially denied. During this dispute, Donald E. Zerial, an attorney, attended City

board meetings and advocated for Acton’s tax exemptions. He also regularly contacted City

officials, including Mish, to express his support of Acton.

       In March 2015, Zerial sent an email to Julie Hoogland, the Editor of the Grand Rapids

Press, stating:

       I think it would be a worth-while investment for the Grand Rapids Press and
       Mlive to make on behalf of the West Michigan community to have a reporter
       attending these meetings and do a Press review for all of your faithful readers.

To this email, Zerial attached an advertisement for an upcoming lecture at Acton.             The

advertisement also promoted other Acton events, including an event entitled “The Scarlet Cord –

The Evils of Sex Trafficking with Pam Alderman and Elise Hilton.” Mish was apparently copied

on the email at her City-provided email address. About an hour after receiving the email, Mish

responded to Zerial personally:

       Perhaps you should ask the Acton Institute why they think they should be exempt
       from paying real property taxes? And why are they suing the City of Grand
       Rapids to demand their valuable government handout of that real property tax
       exemption?

       For an institute that proclaims the below political message, it seems to me that
       they are entirely hypocritical in throwing an absolute hissy fit because they didn’t
       get the government handout that they believe they are “entitled” to.

A few hours later, Mish sent Zerial another email:

       I find this particularly ironic. . . .if you scroll down on the attachment you sent
       me, and get to upcoming events, you see this entry:

       April 29–Acton Art Series–The Scarlet Cord - The Evils of Sex Trafficking with
       Pam Alderman and Elise Hilton

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Case No. 16-2741, Elise Hilton, et al. v. Catherine Mish, et al.



       Elise Hilton is a staff member of Acton Institute here in GR. Her daughter, at the
       age of 15-16 or thereabouts, ran away from home (ran away from her
       “alternative” high school in downtown GR). She wandered the streets of
       downtown Grand Rapids, acting as a prostitute in exchange for heroin, cocaine,
       alcohol and so forth. Her father talked to her on her cell phone and asked where
       she was / asked her to come home. She refused to come home and refused to tell
       her father where she was. The police finally found her after many days of her
       escapades in trading sex for drugs.

       And the result? Ms Elise Hilton the Acton hypocrite dares to sue the City of
       Grand Rapids blaming the GRPD for the fact that her daughter ran away from
       home to become a crack and heroin whore. Currently pending litigation. Case No.
       1:13-CV-00727, assigned to the Hon. Paul Maloney, U.S. District Court for the
       Western District of Michigan. Apparently, Ms. Hilton the Acton hypocrite
       believes that the government is the cause of her family’s woes. Therefore, the
       government owes them a pile of money! It must be the police department’s fault,
       and she and her husband Ed believe they are owed money for this!

       The young woman did not run away from home to become a crack and heroin
       whore because of anything done by the City of Grand Rapids or the GRPD. We
       did not raise her and did not influence her life choices in this regard. The
       hypocrisy of the Acton Institute and its employees is simply amazing. Beware
       that you are dealing with hypocrites, sir.

A year after sending the email, in April 2016, Tom E. Gantert, Managing Editor of Michigan

Capital Confidential, sent a Freedom of Information Act (“FOIA”) request to the City for

information related to the Acton dispute. In response to this request, the City provided the above

email chain to Gantert. Gantert forwarded the email to Elise.

       After receiving the email, the Hiltons filed the instant three-count lawsuit. In Counts 1

and 2, the Hiltons alleged First Amendment retaliation claims under 42 U.S.C. § 1983. Count 1

alleged that Mish violated the Hiltons’ First Amendment right to seek legal redress and Count 2

alleged that Mish violated Elise’s First Amendment right of association with her employer. In

Count 3, the Hiltons brought a claim for IIED under Michigan law. The City and Mish filed a

motion to dismiss all counts for failure to state a claim. The district court granted the motion

holding: (1) Mish acted as an individual rather than in her capacity as City Attorney when she

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Case No. 16-2741, Elise Hilton, et al. v. Catherine Mish, et al.


responded to the email; (2) Mish was entitled to qualified immunity because her actions did not

violate the Hiltons’ First Amendment rights; (3) the City was not liable because the Hiltons

failed to properly allege a constitutional violation; and (4) the Hiltons’ IIED allegations did not

rise to the level of intentional or reckless action.

                                    STANDARD OF REVIEW

        We review de novo a district court’s grant of a motion to dismiss. Laborers’ Local 265

Pension Fund v. iShares Tr., 769 F.3d 399, 403 (6th Cir. 2014). To survive a motion to dismiss,

a claim’s “[f]actual allegations must be enough to raise a right to relief above the speculative

level . . . on the assumption that all of the allegations in the complaint are true.” Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted).

                                            DISCUSSION

        I.      Violation of Clearly Established Constitutional Law

        The Hiltons argue that Mish violated their clearly established First Amendment rights

when she sent the email, thus making her ineligible for qualified immunity.

        “Under the doctrine of qualified immunity, ‘government officials performing

discretionary functions generally are shielded from liability for civil damages insofar as their

conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Phillips v. Roane Cty., 534 F.3d 531, 538 (6th Cir.

2008) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Once a defendant raises the

qualified immunity defense, the burden shifts to the plaintiff to demonstrate that the defendant

violated a right so clearly established “that every ‘reasonable official would have understood that

what [s]he [was] doing violate[d] that right.’” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)

(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).



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Case No. 16-2741, Elise Hilton, et al. v. Catherine Mish, et al.


           There are two steps in the qualified immunity analysis. First, “[t]he court must determine

whether the ‘facts alleged show the officer’s conduct violated a constitutional right.’”3 Cass v.

City of Dayton, 770 F.3d 368, 374 (6th Cir. 2014) (quoting Saucier v. Katz, 533 U.S. 194, 201

(2001)). If the plaintiff establishes a constitutional violation, the court must then determine

“whether that right was ‘clearly established.’” Id. (quoting Saucier, 533 U.S. at 201).

           In accordance with Pearson v. Callahan, 555 U.S. 223, 236 (2009), we will only address

the second step of the qualified immunity analysis: whether the violation was clearly established.

The Supreme Court recently reiterated the very narrow scope of a “clearly established law”

stating:

           “[C]learly established law” should not be defined “at a high level of generality.”
           As this Court explained decades ago, the clearly established law must be
           “particularized” to the facts of the case. Otherwise, “[p]laintiffs would be able to
           convert the rule of qualified immunity . . . into a rule of virtually unqualified
           liability simply by alleging violation of extremely abstract rights.”

White v. Pauly, 137 S. Ct. 548, 552 (2017) (internal citations omitted).

           With this narrow scope in mind, we cannot find that Mish was put on notice that sending

an email to a private individual with no authority over the Hiltons would constitute “an adverse

action that would likely deter a person of ordinary firmness from continuing to engage in the

protected conduct.” Bloch, 156 F.3d at 678.

           To overcome qualified immunity, the Hiltons rely on three cases as evidence of a clearly

established adverse action: (1) Fritz v. Charter Twp. of Comstock, 592 F.3d 718 (6th Cir. 2010);

(2) Barrett v. Harrington, 130 F.3d 246 (6th Cir. 1997); and (3) Bloch, 156 F.3d 673. However,


           3
          The elements to sufficiently state a retaliation claim are: (1) the Hiltons engaged in
constitutionally-protected conduct; (2) the defendant took an adverse action that would likely
deter a person of ordinary firmness from continuing to engage in the protected conduct; and
(3) the adverse action was motivated at least in part by the Hiltons’ protected conduct. Bloch v.
Ribar, 156 F.3d 673, 678 (6th Cir. 1998).

                                                  -6-
Case No. 16-2741, Elise Hilton, et al. v. Catherine Mish, et al.


each is distinguishable. In Fritz, the plaintiff opposed the Township’s actions. 592 F.3d at 725.

After this opposition, the Township Supervisor made statements about the plaintiff to her

employer and encouraged her employer to terminate her employment. Id. at 728. We held that a

“person of ordinary firmness would be deterred from engaging in protected conduct, if as a

result, a public official encouraged her employer to terminate the person’s contract” because

“few aspects of one’s life are more important than gainful employment.” Id. at 726–28. Relying

on this case, the Hiltons argue that Mish’s alleged defamatory statements constituted an adverse

action similar to the alleged defamatory statements in Fritz. However, this greatly oversimplifies

Fritz. Fritz does not stand for the proposition that defamatory statements alone are sufficient.

Instead, the defamatory statements and the encouragement of termination were sufficient. Id. at

727 (“[T]hese potentially defamatory statements were not of such a character that they amounted

to an adverse action taken on their own.”). In this case, the Hiltons fail to allege a similar action

to that of affecting their employment.

       In Barrett, the plaintiff alleged that a state-court judge retaliated against him for

investigating the judge. 130 F.3d at 262. In the alleged retaliation, the judge issued statements

to the media that the plaintiff was stalking her. Id. Most importantly, we did not address

whether the judge’s statements to the media constituted an adverse action—the only issue in this

appeal. Instead, we considered whether the plaintiff’s engagement in protected conduct was a

substantial or motivating factor in the judge’s statements to the media. Id. at 262–63. However,

even putting that aside, Barrett is distinguishable from this case because the judge issued the

statements to the public through media. In this case, Mish’s emails were only sent to a private

individual.




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Case No. 16-2741, Elise Hilton, et al. v. Catherine Mish, et al.


       In Bloch, the plaintiff alleged that in response to newspaper articles that were critical of

the sheriff’s progress in investigating a rape of the plaintiff, the sheriff held a public press

conference. 156 F.3d at 676. In this press conference, the sheriff allegedly released highly

embarrassing details of the rape that the plaintiff had not even disclosed to her husband. Id. We

held that the plaintiff adequately alleged an adverse action because the sheriff’s right to respond

to the criticism did not extend to the release of irrelevant, humiliating, and confidential

information.    Id. at 681.    However, Bloch is distinguishable from this case because the

information was released in a public press conference as opposed to sending an email to a single

individual that was never disclosed to the public until a year later.

       Accordingly, even assuming that Mish’s conduct violated the Hiltons’ constitutional

rights, none of our precedents clearly established this violation. The district court therefore

appropriately granted qualified immunity to Mish.

       II.     Municipal Liability

       The Hiltons also argue that the district court erred in dismissing the City. Specifically,

the Hiltons argue that the City is liable for Mish’s conduct under a theory of municipal liability.

       In Monell v. New York, the Supreme Court held that municipalities can be subject to

direct liability under § 1983 only when the action of the municipality itself can be said to have

caused the harm. 436 U.S. 658, 690 (1978). “[I]t is when execution of a government’s policy or

custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to

represent official policy, inflicts the injury that the government as an entity is responsible under

Section 1983.” Id. at 694. “At the very least, there must be an affirmative link between the

policy and the particular Constitutional violation alleged.” Oklahoma City v. Tuttle, 471 U.S.

808, 823 (1985). Municipal liability is “limited to acts . . . . which the municipality has



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Case No. 16-2741, Elise Hilton, et al. v. Catherine Mish, et al.


officially sanctioned or ordered.” Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986). It

attaches “only where the decisionmaker possesses final authority to establish municipal policy

with respect to the action ordered.” Id. at 481.

       The Hiltons allege that “Mish had ultimate authority to represent the City in litigation and

make decisions for how to perform those duties.          As such, because she was an ultimate

decisionmaker for how to perform these functions, her actions have the force and effect of

policymaking, and, therefore, municipal liability will lie.” However, the facts set forth in the

complaint fail to establish either that the City’s official policy giving Mish the authority to

litigate cases “is responsible for [the] deprivation of [the Hiltons’ First Amendment] rights,”

Monell, 436 U.S. at 690–91, or that the City “officially sanctioned or ordered” Mish to send the

allegedly defamatory comments in the email. Pembaur, 475 U.S. at 479. At most, the City’s

policy giving Mish the authority to litigate cases on its behalf allowed Mish to respond to

criticism of litigation strategy of a pending case. However, the policy did not sanction or order

Mish to defame the Hiltons to third parties, and the complaint contains no competent allegations

to the contrary. Therefore, the “affirmative link between the policy and the [] Constitutional

violation” is missing, and accordingly, the complaint fails to plead facts that would support

municipal liability. Tuttle, 471 U.S. at 823.

       III.    Intentional Infliction of Emotional Distress

       The Hiltons argue that the district court erred in dismissing their IIED claim.

Specifically, the Hiltons argue that “Mish made this statement in a public document subject to

production under FOIA” and that “[i]t was reasonably foreseeable that this statement would get

back to the Hiltons.”




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Case No. 16-2741, Elise Hilton, et al. v. Catherine Mish, et al.


       For a claim of IIED, plaintiffs must allege (1) extreme and outrageous conduct; (2) intent

or recklessness; (3) causation; and (4) severe emotional distress. See Hayley v. Allstate Ins. Co.,

686 N.W.2d 273, 276 (Mich. Ct. App. 2004). “The conduct complained of must be ‘so

outrageous in character, and so extreme in degree, as to go beyond all possible bounds of

decency, and to be regarded as atrocious and utterly intolerable in a civilized community.’” Id.

(quoting Graham v. Ford, 604 N.W.2d 713, 716 (Mich. Ct. App. 1999)).

       “The test to determine whether a person’s conduct was extreme and outrageous is

whether recitation of the facts of the case to an average member of the community would arouse

his resentment against the actor, and lead him to exclaim, “Outrageous!”” Lewis v. LeGrow,

670 N.W.2d 675, 689 (Mich. Ct. App. 2003). “Th[is] question should be presented to the jury if

reasonable minds may differ regarding whether the conduct was, indeed, extreme and

outrageous.” Burke v. Detroit Pub. Sch., No. 262983, 2006 WL 1156366, at *12 (Mich. Ct. App.

May 2, 2006). But, a defendant may not be held “liable for mere insults, indignities, threats,

annoyances, petty oppressions, or other trivialities.” Lewis, 670 N.W.2d at 689 (quoting Doe v.

Mills, 536 N.W.2d 824, 833 (Mich. Ct. App. 1995)).

       In this case, the portions of the email calling EH a “crack and heroin whore” are the

closest statements to “extreme and outrageous conduct,” as the rest of Mish’s email provides

factual background to the lawsuit initiated by the Hiltons.        Although such statements are

certainly shameful and inappropriate, especially coming from a public official, we cannot find

these statements actionable because they were only intended to be seen by a single unrelated

third party through a private email, and the Hiltons only became aware of the statements by

chance roughly a year after they were made. Under the circumstances presented by this case,

Mish’s conduct does not clear the high bar for “outrageous” conduct set by Michigan law. See,



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Case No. 16-2741, Elise Hilton, et al. v. Catherine Mish, et al.


e.g., Graham v. Ford, 604 N.W.2d 713, 716 (Mich. Ct. App. 1999) (finding “inconsiderate and

thoughtless” conduct non-actionable in a lawsuit where the defendant allegedly made many

racially insensitive comments).

       AFFIRMED.




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Case No. 16-2741, Elise Hilton, et al. v. Catherine Mish, et al.


       HELENE N. WHITE, Circuit Judge, concurring in part and dissenting in part.

I agree that the Hiltons cannot establish municipal liability and therefore the district court

properly dismissed the claims against the City.          However, I dissent from the majority’s

conclusions that the law was not clearly established at the time Mish sent the emails and that

Mish’s emails failed to meet the threshold required to constitute outrageous conduct.

       A. First Amendment Retaliation

       At the motion to dismiss stage, it is at least plausible that Mish was acting as City

Attorney when she sent the emails from her official email account. One of her explicit duties

was to litigate cases on behalf of the city. (Dkt. 9-3 at Page ID 87–88). Therefore, an “apparent

duty of [Mish’s] job” would be to support any of the City’s litigation strategies when criticized.

See Waters v. City of Morristown, TN, 242 F.3d 353, 359 (6th Cir. 2001). Further, an attorney

often represents her client’s view of a litigation matter to persons or entities other than the court.

Here, Mish did not communicate her view of a case to a colleague, for example, but rather to a

private attorney and community activist whom she knew communicated with the press. Finally,

Mish was the lead counsel for the department handling the EH litigation. A government-

employed lawyer making extrajudicial statements about her client’s pending litigation is acting

in connection with the authority of her office. See Filarsky v. Delia, 566 U.S. 377, 383 (2012)

(“Anyone whose conduct is ‘fairly attributable to the state’ can be sued as a state actor under

§ 1983.”) (citing Lugar v. Edmonson Oil Co., 457 U.S. 922, 937 (1982)). Therefore, the district

court erred in finding Mish was not acting under color of state law.

       The Hiltons’ complaint alleges two First Amendment retaliation claims under

42 U.S.C. § 1983. The first count alleges that Mish sent a defamatory email, in her official

capacity as Grand Rapids’s attorney, in retaliation for plaintiffs’ lawsuit against the city and its



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Case No. 16-2741, Elise Hilton, et al. v. Catherine Mish, et al.


police department. The second count alleges that Mish sent her email in retaliation for Elise

Hilton’s advocacy on behalf of, and association with, her employer, a non-profit think tank that

was engaged in a tax dispute with the city at the time the email was sent. To sufficiently state a

retaliation claim, the Hiltons must allege: (1) they engaged in constitutionally protected conduct;

(2) the defendant took an adverse action that would likely deter a person of ordinary firmness

from continuing to engage in the protected conduct; and (3) the adverse action was motivated at

least in part by the Hiltons’ protected conduct. Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir.

1998).

         The Hiltons engaged in constitutionally protected conduct in filing their action against

Hope Academy and the GRPD. See California Motor Transp. Co. v. Trucking Unlimited,

404 U.S. 508, 510 (1972) (“Certainly the right to petition extends to all departments of the

Government. The right of access to the courts is indeed but one aspect of the right of petition.”);

see also Smith v. Arkansas State Highway Emp. Local 1315, 441 U.S. 463, 464 (“The First

Amendment protects the right of an individual to speak freely, to advocate ideas, to associate

with others, and to petition his government for redress of grievances.”).

         Mish took an adverse action by writing and sending the emails, and such actions would

likely deter a person of ordinary firmness from continuing to engage in the protected conduct.

Bloch, 156 F.3d at 678. The Hiltons explain:

         Would a citizen still choose to associate with Acton if they knew that, in response
         for doing so, the City Attorney would release information about their daughter’s
         rape investigation? Would she still choose to file a lawsuit if she knew that in
         response the City Attorney would contact private individuals and claim, falsely,
         that their daughter was a “crack and heroin whore?” Would she still speak about
         the dangers of sex trafficking if she knew the City Attorney would state, in a
         publicly available document, that their daughter was “on an escapade trading sex
         for drugs?” The answer is a resounding no.

(Appellants’ Br. at 32–33).

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Case No. 16-2741, Elise Hilton, et al. v. Catherine Mish, et al.


       Although the district court never addressed Mish’s motivation to send the emails, it is

plausible that Mish was “motivated at least in part” by Elise Hilton’s association with Acton and

the Hiltons’ suit against GRPD. Mish both refers to the Acton property tax dispute and describes

the events underlying the Hiltons’ suit against GRPD in great detail. (Dkt. 11-1 at Page ID 449)

(“Perhaps you should ask the Acton Institute why they think they should be exempt from paying

real property taxes? And why they are suing the City of Grand Rapids to demand their valuable

government handout of that real property tax exemption?”); (Id. at Page ID 450) (“Ms. Elise

Hilton the Acton hypocrite dares to sue the City of Grand Rapids . . .”).

       The Hiltons sufficiently stated a claim against Mish for First Amendment retaliation.

       B. Qualified Immunity

       To overcome Mish’s defense of qualified immunity, the Hiltons must show that her

alleged conduct “violate[d] clearly established statutory or constitutional rights of which a

reasonable person would have known.”          Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

Distinguishing the cases relied on by the Hiltons, the majority concludes that “none of our

precedents clearly established” a violation of the Hilton’s constitutional rights. I disagree.

       In Fritz v. Charter Township of Comstock, 592 F.3d 718 (6th Cir. 2010), the plaintiff

opposed the Township’s actions by attending public meetings and voicing her concern about

what she believed were procedural errors. Id. at 720. After this opposition, the Township

Supervisor made statements about the plaintiff to her employer, including mildly or potentially

defamatory ones about her standing in the community, and encouraged her employer to terminate

her employment as an independent insurance agent. Id. at 725.

       The majority observes that Fritz does not stand for the proposition that defamatory

statements are per se sufficient to establish an adverse action. Maj. op. at p. 7. This is correct.



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Case No. 16-2741, Elise Hilton, et al. v. Catherine Mish, et al.


However, Fritz makes clear that statements by a public official, defamatory or not, may be an

adverse action depending on their nature. The court in Fritz simply found that any defamation

that occurred under those facts was “not of such a character” as to itself be an adverse action.

See 592 F.3d at 727 (“The kinds of statements—both defamatory and not—that have been

interpreted as adverse actions for the purposes of a retaliation claim are of a fundamentally

different character than Plaintiff’s allegations that Defendant Hudson falsely stated that she was

violating ordinances and that there was a petition against her in the neighborhood.”). The court

noted the type of statements that are objectionable and potentially actionable are generally

“highly embarrassing” and/or “impugn Plaintiff’s character.” Id. (citing Bloch, 156 F.3d at 679–

81).

       Here, Mish’s statements were highly embarrassing and impugn both EH’s character and

that of her parents. The Hiltons thus allege a constitutional violation that is clearly established

by Fritz.

       In Barrett v. Harrington, 130 F.3d 246 (6th Cir. 1997), the plaintiff alleged that a state-

court judge retaliated against him for investigating the judge. Specifically, the defendant judge

told two reporters that the plaintiff was stalking her. Id. at 262. The court found the defendant

judge was not entitled to qualified immunity: “Harrington’s statements to the press fail the

objective legal reasonableness test because her conduct violated clearly established First

Amendment rights of which a person in her position would have been cognizant.” Id. at 264.

       The majority emphasizes that Mish’s emails were only sent to a private individual, while

the defendant judge spoke to a reporter. Maj. op. at p. 7. However, although the defendant judge

likely assumed that her comments would be disseminated to others through the two reporters she

spoke to, Mish should have assumed the same when she sent her email to a local attorney and



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Case No. 16-2741, Elise Hilton, et al. v. Catherine Mish, et al.


community activist, whom she knew kept in contact with the press. In fact, the Hiltons allege

Zerial forwarded the communication to the press the same day he received it.

       Further, although the actions of third parties can influence damages attributable to

tortious conduct (i.e., A makes a defamatory comment to B, B disseminates broadly), it does not

follow that third-party exacerbation of the damage is an element of the tort itself. In other words,

Mish made a defamatory statement to Zerial and that was the constitutional tort: it is irrelevant

to liability if Zerial caused more damage to the Hiltons by disseminating the statement or

influencing the press to widely disseminate it.

       Finally, in Bloch, a sheriff embarrassed a rape victim who was critical of him by

releasing embarrassing details about her assault at a press conference. This court held that the

plaintiff adequately alleged an adverse action because the sheriff’s right to respond to criticism

did not extend to the release of irrelevant, humiliating, and confidential information. 156 F.3d at

681. As in Barrett, that the sheriff released information to the press was not crucial to the court’s

ruling; it was dissemination to a third party for the purpose of embarrassing or humiliating the

person who had criticized him. See id. at 683 (“[Defendant] clearly had a right to respond to

[plaintiffs’] criticism, but if the [plaintiffs] can prove that the intimate details of the rape were

released in order to retaliate against their criticism, a reasonable officer should have known that

the action violated the [plaintiffs’] rights and therefore cannot benefit from the doctrine of

qualified immunity.”).

       Moreover, in Bloch, the defendant’s disclosure was of truthful information, but this court

held that it could be retaliatory if intended to embarrass plaintiffs. Id. at 683. Here, the Hiltons




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Case No. 16-2741, Elise Hilton, et al. v. Catherine Mish, et al.


allege that not only did Mish release information about a rape victim, but that she released

incendiary, accusative information that she knew, or should have known, was false.1

       Under Fritz, Barrett, and Bloch, Mish’s emails constitute an adverse action under clearly

established law. She is therefore not entitled to qualified immunity.

       C. Intentional Infliction of Emotional Distress

       As the majority concedes, the question whether a person’s conduct was extreme and

outrageous “should be presented to the jury if reasonable minds may differ regarding whether the

conduct was, indeed, extreme and outrageous.” Burke v. Detroit Pub. Sch., No. 262983, 2006

WL 1156366, at *12 (Mich. Ct. App. May 2, 2006). The majority finds Mish’s emails “shameful

and inappropriate,” but nonactionable because “they were only intended to be seen by a single

unrelated third party through a private email, and the Hiltons only became aware of the

statements by chance roughly a year after they were made.” Maj. op. at p. 10.

       I disagree. Mish was a senior public official responsible for representing the city, who

allegedly had access to a fifteen-year-old rape victim’s investigative and medical reports. She

then sent a message to a member of the public falsely accusing2 the minor victim of having

engaged in promiscuous and criminal conduct, suggesting that her parents were at fault, and


       1
          The Hiltons allege that Mish had access to the investigation records both generally in
her capacity as City Attorney and specifically given that the records were part of pending
litigation against the city and thus knew, or had reason to know, that EH was below the age of
consent and thus could not have consented to sexual activity. (Dkt. 1 at Page ID 1–16). Further,
the investigation records show that Mish’s allegations about EH were untrue because EH was
taken to a YWCA for a rape kit and toxicology screen, and she later went to a hospital. (Id.).
The toxicology screen was negative (e.g., she tested negative for heroin and cocaine). (Id.).

       2
         Cf. Mich. Comp. Laws Ann. § 600.2911(1) (“Words imputing a lack of chastity to any
female or male are actionable in themselves and subject the person who uttered or published
them to a civil action for the slander in the same manner as the uttering or publishing of words
imputing the commission of a criminal offense.”).

                                               - 17 -
Case No. 16-2741, Elise Hilton, et al. v. Catherine Mish, et al.


recommending that the recipient reconsider his relationship with the victim’s mother (or her

employer). By contemporary standards, such an email would be regarded by most as shocking

and indecent. Assuming the truth of the factual allegations in plaintiffs’ complaint, reasonable

jurors could find that “the conduct was, indeed, extreme and outrageous.”

       Therefore, the Hiltons have stated a claim against Mish for intentional infliction of

emotional distress.




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