                          NOT RECOMMENDED FOR PUBLICATION
                                 File Name: 09a0151n.06
                                 Filed: February 20, 2009

                                              No. 06-2512

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


PATRICIA BARACHKOV;                              )
NANCY ENGLAR; and                                )
CAROL DIEHL,                                     )
                                                 )
        Plaintiff-Appellants,                    )
                                                 )        ON APPEAL FROM THE UNITED
v.                                               )        STATES DISTRICT COURT FOR
                                                 )        THE EASTERN DISTRICT OF
41B DISTRICT COURT;                              )        MICHIGAN
LINDA DAVIS, Chief Judge; and                    )
TOWNSHIP OF CLINTON,                             )        OPINION
                                                 )
        Defendants-Appellees.                    )


Before:         BATCHELDER and MOORE, Circuit Judges; and BUNNING, District
                Judge.*


        DAVID L. BUNNING, District Judge. Patricia Barachkov, Nancy Englar and Carol

Diehl, employees of the 41B District Court in Clinton Township, Michigan, were fired from

their jobs in July 2004. Following their terminations, Appellants filed an action under 42

U.S.C. § 1983, alleging that Appellees had violated Appellants’ First and Fourteenth

Amendment rights by ending their employment because of interview statements Appellants

made as part of a management oversight review conducted by the Michigan State Court

Administrative Office (SCAO). The district court granted defendants’ motion for summary



        *
          The Honorable David L. Bunning, United States District Judge for the Eastern District of Kentucky,
sitting by designation.
judgment, as it concluded that 41B District Court and Clinton Township were entitled to

sovereign immunity, and that plaintiffs had failed to demonstrate that any constitutional

violations had occurred. For the reasons stated below, we AFFIRM in part, REVERSE in

part, and REMAND for proceedings consistent with this opinion.

                                   I.    BACKGROUND

       A.       Factual Background

       Appellee 41B District Court is a Michigan trial court assigned jurisdiction over traffic

violations, civil and criminal infractions, small claims, and probation oversight. At times

relevant to this case, 41B District Court was comprised of two physically separate divisions,

one serving the city of Mt. Clemens, and the other serving Clinton Township. Each

municipality was responsible for maintaining, financing and operating its respective division

of the court.

       Appellants were employees of the Clinton Township division of the court until their

terminations in July, 2004. Appellants Barachkov and Englar were employed as court

clerks, while Appellant Diehl was a court cashier. During Appellants’ employment, Linda

Davis was Chief Judge of the 41B District Court and was assigned supervisory authority

over personnel in both locations by law, and possessed the authority to hire, fire, discipline,

or discharge employees. Chief Judge Davis and Judge John Foster sat in the Mt. Clemens

location, while Judge William Cannon sat in Clinton Township.

       In late May 2004, Deborah Green, a representative of the SCAO, informed Chief

Judge Davis that the SCAO would soon be conducting a management oversight review into

the operations and performance of the 41B District Court. On June 28, 2004, Chief Judge



                                              2
Davis held a staff meeting in which she advised the district court staff that, as part of the

SCAO investigation, each employee of the court would be interviewed. At this meeting,

Chief Judge Davis emphasized the serious nature of the investigation and that the need

for honesty was paramount. She informed the employees that no one would be disciplined

for previous wrongs, and that no one would lose their jobs if they were honest with the

interviewer.

       Green independently interviewed each court employee; Chief Judge Davis did not

participate in the investigation. Following completion of the interviews, Green concluded

that Appellants Barachkov, Diehl, and Englar had lied and withheld information, and had

coerced others to do the same. Appellants allege that their answers to Green’s questions

were honest and that Green asked questions about topics on which they had no personal

knowledge.

       On July 15, 2004, Chief Judge Davis fired the Appellants.              Along with a

representative of the SCAO, Chief Judge Davis met individually with each Appellant and

informed her that she was being terminated due to her responses during the interview.

Appellants were not provided with advance notice of the terminations or a hearing in which

they could dispute the reasons for their dismissal.         Appellants contend that their

terminations were a result of Chief Judge Davis’ desire to advance her political and

personal agenda by forcing Judge Cannon to retire, and that they were fired for failing to

provide false information about Judge Cannon’s management of the Clinton Township

division of the 41B District Court.

       B.      Procedural Background

       Appellant Barachkov commenced an action pursuant to § 1983 and various state

                                             3
laws in the United States District Court for the Eastern District of Michigan in October,

2004. Shortly after, Appellants Diehl and Englar followed suit and filed identical actions.

On March 31, 2006, the district court consolidated the cases into a single action.

Appellees thereafter filed motions for summary judgment alleging that Clinton Township

and the 41B District Court were entitled to sovereign immunity and that Appellants could

not, as a matter of law, establish any constitutional violations. The district court agreed and

granted Appellees’ motion. Appellants timely filed the present appeal from the district

court’s order. They raise four issues on appeal, arguing the district court erred in (1)

dismissing 41B District Court as a party on Eleventh Amendment grounds; (2) granting

summary judgment on their First Amendment retaliation claim; (3) granting summary

judgment on their Fourteenth Amendment procedural due process claim; and (4)

dismissing their claims for prospective injunctive relief against Chief Judge Davis in her

official capacity. We will discuss each of these issues in turn.

                                       II.   Analysis

       A.     Standard of Review

       Summary judgment is appropriate “if the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to any material

fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

“The moving party bears the burden of showing the absence of any genuine issues of

material fact.” Sigler v. Am. Honda Motor Co., 532 F.3d 469, 483 (6th Cir. 2008). Once

the movant has satisfied its burden, the nonmoving party must “do more than simply show

that there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co.



                                              4
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), it must produce evidence showing that

a genuine issue remains, Plant v. Morton Int’l, Inc., 212 F.3d 929, 934 (6th Cir. 2000).

       The court must credit all evidence presented by the nonmoving party and draw all

justifiable inferences in that party’s favor. Id. We must “assess the proof to determine

whether there is a genuine need for trial,” and “[t]he proper inquiry is whether the evidence

is such that a reasonable jury could return a verdict for the plaintiff.” Weigel v. Baptist

Hosp. of E. Tenn., 302 F.3d 367, 375 (6th Cir. 2002) (citing Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 252 (1986)). “We review de novo a district court’s grant of summary

judgment.” Spencer v. Bouchard, 449 F.3d 721, 727 (6th Cir. 2006).

       B.      Sovereign Immunity

       “From birth, the States and the Federal Government have possessed certain

immunities from suit in state and federal courts.” Ernst v. Rising, 427 F.3d 351, 358 (6th

Cir. 2005) (en banc). This immunity “flows from the nature of sovereignty itself as well as

the Tenth and Eleventh Amendments to the United States Constitution” and “applies to

claims against a State by citizens of the same State”, “claims against a State by citizens

of another State,” and “actions against state officials sued in their official capacity for

money damages.” Id.; see Lapides v. Bd. of Regents, 535 U.S. 613, 616 (2002); Edelman

v. Jordan, 415 U.S. 651, 664-66 (1974). “‘[A] suit against a state official in his or her official

capacity is not a suit against the official but rather is a suit against the official’s office,’ i.e.,

against the State.” S&M Brands, Inc. v. Cooper, 527 F.3d 500, 507 (6th Cir. 2008) (quoting

Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)). This immunity, however, is

subject to several exceptions:



                                                  5
       A State may elect to waive that immunity through legislation, or through its
       conduct in litigation. The immunity does not attach if the lawsuit is not against
       the State or an “arm of the state.” The immunity “does not extend to counties
       and similar municipal corporations.” The immunity does not apply if the
       lawsuit is filed against a state official for purely injunctive relief enjoining the
       official from violating federal law.

Ernst, 427 F.3d at 358 (citations omitted). “Whether immunity exists in a given case is a

question of constitutional law that we review de novo.” Id. at 359 (citing S.J. v. Hamilton

Co., 374 F.3d 416, 418 (6th Cir. 2004)).

       In determining whether a public entity is an “arm of the state” entitled to immunity,

or a “political subdivision” which is not, we consider several factors: (1) the potential liability

of the State for any judgment against the entity; (2) the language used by state statutes

and courts to refer to the entity, and the degree of state control and veto power over the

entity’s actions; (3) whether the board of the entity is appointed by state or local officials;

and (4) whether the entity’s functions fall within the traditional purview of state or local

government. Id. at 359 (citing Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 51

(1994)). We have emphasized that “the question of who pays a damage judgment against

an entity [is] the most important factor in arm-of-the-state analysis,” Alkire v. Irving, 330

F.3d 802, 811 (6th Cir. 2003), and that the inquiry into liability must focus on “the state

treasury’s potential legal liability for the judgment, not whether the state treasury will pay

for the judgment in [this] case,” Ernst, 427 F.3d at 359.

       Focusing only on the first factor of the analysis, Appellants contend that sections

600.8103(3) and 600.8104(1)(b) of the Michigan Compiled Laws, and the holding of

Cameron v. Monroe County Probate Court, 579 N.W.2d 859 (Mich. 1998), establish that

Clinton Township - and not the State of Michigan - will be liable for any judgment against


                                                6
the 41B District Court thereby precluding that court’s entitlement to sovereign immunity.

This argument is unpersuasive for two reasons. One, the statutes and case law cited by

Appellants do not conclusively determine that the State of Michigan will not be potentially

liable for any judgment against the 41B District Court. And two, the argument understates

the importance of the remaining factors in the arm-of-the-state analysis.

        First, although the Michigan statutes cited by Appellants establish that Clinton

Township provides operational financing for the 41B District Court, they do not conclusively

state who will ultimately pay for any judgment against this state district court. See Mich.

Comp. Laws § 600.8103(3) (“A district of the third class is a district consisting of 1 or more

political subdivisions within a county and in which each political subdivision comprising the

district is responsible for maintaining, financing and operating the district court within its

respective political subdivision except as otherwise provided in this act.”); § 600.8104(1)(b)

(“The term ‘district funding unit’ or ‘district control unit’ means . . . [t]he city or the township

in districts of the third class . . . .”).

        Equally unavailing is Appellants’ reliance upon the holding of Cameron. In that

case, former employees of a probate court brought suit against the court and its judge

alleging civil rights violations. Pursuant to a mediation agreement, a $25,000 judgment

was entered against the probate court, and paid to plaintiffs by the State of Michigan. The

probate court filed a third party-complaint seeking indemnification from its local funding unit

Monroe County. The Michigan Supreme Court held that “the probate court is not entitled

to indemnification from the county here because the underlying claim was resolved at no

cost to the probate court.” Id. at 862. In reaching this conclusion, however, the court also

stated that “[i]f the probate court had been found liable to plaintiff, the county would be

                                                 7
liable for any resulting judgment as a matter of law.” Id. It is presumably upon this

statement that Appellants rely for the proposition that the State of Michigan is not

potentially liable for any judgment in this case. However, this statement does not establish

that the State of Michigan is not potentially liable for any judgments against a district court;

on the contrary, as this statement was made in the context of a proceeding for

indemnification, it only establishes that when a judgment rendered against a district court

has been paid by the State, the county will be responsible for reimbursing the State. The

fact that a county may be called upon to indemnify the State does not resolve the question

of whether the State bears any potential legal liability with respect to judgments against

district courts of the third class such as the 41B District Court. Cf. Regents of the Univ. of

Cal. v. Doe, 519 U.S. 425, 431 (1997) (“[I]t is the entity’s potential legal liability, rather than

its ability or inability to require a third party to reimburse it, or to discharge the liability in the

first instance, that is relevant.”).

       Second, our recent decisions make clear that, “[w]hile there can be little doubt that

the state-treasury inquiry will generally be the most important one, . . . it is not ‘the sole

criterion for determining whether an agency is a state entity for sovereign immunity

purposes.’” Ernst, 427 F.3d at 364 (quoting S.J., 374 F.3d at 421). The sovereign

immunity doctrine encompasses values beyond guarding the public fisc, S.J., 374 F.3d at

421, protecting not only a State’s treasury, but also its dignity, by “pervasively . . .

emphasiz[ing] the integrity retained by each State in our federal system.” Hess, 513 U.S.

at 39. Illustrating this principle is the Eleventh Amendment’s bar against “all actions

brought against a state itself, even injunctive actions that raise no risk of an impact on the



                                                  8
treasury.” S.J., 374 F.3d at 421.

        Considerations of dignity are particularly relevant in a suit against a state court,

which is the “adjudicative voice” of the State itself. See S.J., 374 F.3d at 420. “That is

particularly true in the context of a court system that, like [Michigan’s], is mandated by the

state constitution to be uniform and to be supervised by one supreme court.” Id. at 421-22;

see Mich. Const. art. VI, §1 (“The judicial power of the state is vested exclusively in one

court of justice . . . .”); Mich. Comp. Laws § 600.8101(1) (“The state is divided into judicial

districts of the district court each of which is an administrative unit subject to the

superintending control of the Supreme Court.”). Therefore, “[i]mportant as the monetary

liability factor may be, it is not the only factor.” Ernst, 427 F.3d at 365.

        In this case, neither party has produced persuasive evidence regarding who - the

State of Michigan or Clinton Township - will ultimately be responsible for paying any

judgment rendered against the 41B District Court. Additionally, the district court made no

findings as to the four factors detailed above. Accordingly, remand of this issue to the

district court is warranted. That court can initially determine whether the State of Michigan

will be potentially liable for a judgment against the 41B District Court,1 as well as undertake

an analysis of the other three factors detailed above to determine whether 41B District

Court is entitled to sovereign immunity. See Alkire, 330 F.3d at 813 (remanding to the

district court to analyze a claim of sovereign immunity).


        1
           Recently, one federal court in Michigan has held that the State of Michigan is not potentially liable
for judgm ents against a district court of the third class which arise out of em ploym ent disputes. Pucci v.
Nineteenth Dist. Court, 565 F. Supp. 2d 792, 805 (E.D. Mich. 2008) (relying on Mich. Com p. Laws §
600.591(12) and Kain v. State, 311 N.W .2d 351 (Mich. Ct. App. 1981), to conclude that “the state is not
responsible for em ploym ent-related claim s”). [It is im portant to note, however, that the Pucci court did not
undertake an analysis of all four factors; its holding regarding sovereign im m unity was based solely on the first
factor of the “arm of the state” analysis.]

                                                        9
       C.     First Amendment Retaliation

       Appellants allege that they were discharged in retaliation for their refusal to give

false information during interviews conducted by an independent state agency as part of

a formal investigation into the performance and internal operations of the Clinton Township

division of the 41B District Court. Despite the arguments of both parties, this appeal does

not require us to determine the veracity of the speech at issue, or whether Judge Davis

believed Appellants lied during their interviews. On the contrary, we need determine only

whether Appellants can establish the existence of a genuine issue of material fact that they

were terminated for engaging in speech protected by the First Amendment.

       This court has developed a three-step test for analyzing claims of First Amendment

retaliation made by public employees. First, the employee must show that, as a matter of

law, the speech at issue was protected. Haynes v. City of Circleville, 474 F.3d 357, 362

(6th Cir. 2007) (citing Taylor v. Kieth, 338 F.3d 639, 643 (6th Cir. 2003)). In order for a

government employee’s speech to warrant First Amendment protection, the employee (1)

“must have spoken ‘as a citizen,’ and (2) must have ‘address[ed] matters of public

concern.’” Weisbarth v. Geauga Park Dist., 499 F.3d 538, 542 (6th Cir. 2007) (alteration

in original) (quoting McMurphy v. City of Flushing, 8002 F.2d 191, 197 (6th Cir. 1986)

(holding that “when a public employee speaks not as a citizen upon matters of public

concern, but instead as an employee upon matters only of personal interest, absent the

most unusual circumstances, a federal court is not the appropriate forum in which to review

the wisdom of a personnel decision taken by a public agency allegedly in reaction to the

employee’s behavior”). Additionally, the employee must demonstrate that her “interest in



                                            10
the speech outweighs the government’s countervailing interest in promoting the efficiency

of the public service it provides as an employer.” Taylor v. Keith, 338 F.3d 639, 643 (6th

Cir. 2003). Second, if an employee is able to successfully establish that her speech was

protected under the First Amendment, the employee must then show that her termination

“would chill an ordinary person in the exercise of his First Amendment rights.” Id. “Finally,

the employee must present sufficient evidence to create a genuine issue as to whether his

speech was a substantial or motivating factor in the employer’s decision to discipline or

dismiss.” Id.

       In Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme Court clarified what it

means to “speak as a citizen” by holding that “when public employees make statements

pursuant to their official duties, the employees are not speaking as citizens for First

Amendment purposes, and the Constitution does not insulate their communications from

employer discipline.” Id. at 421. The determinative factor under Garcetti is not where, or

to whom, the employee communicated, but rather whether the employee communicated

pursuant to his or her official duties. Weisbarth, 499 F.3d at 545. “Restricting speech that

owes its existence to a public employee’s professional responsibilities does not infringe any

liberties the employee might have enjoyed as a private citizen. It simply reflects the

exercise of employer control over what the employer itself has commissioned or created.”

Garcetti, 547 U.S. at 421-22.

       This court’s recent decision in Weisbarth addressed the application of Garcetti to

speech made during an interview with an outside consultant. In Weisbarth, the plaintiff,

a park ranger for the Geauga Park District, filed a § 1983 action claiming First Amendment



                                             11
retaliation after she was fired from her job. She alleged that her termination resulted from

the honest answers she gave to questions posed by an outside consultant hired to

investigate morale and performance problems within the ranger department. The district

court dismissed Weisbarth’s complaint on the ground that she had failed to state a claim

that the speech at issue was protected under the First Amendment, and Weisbarth

appealed. This court affirmed, holding that, in speaking to the consultant, Weisbarth

“spoke pursuant to her official duties rather than ‘as a citizen,’ and her claim was therefore

properly dismissed.” Id. at 546.

       In so holding, this court found Weisbarth’s argument that her interview with the

consultant was not part of her “official duties” as a park ranger to be unpersuasive;

cooperation with an outside consultant is an ad hoc duty which falls “within the scope of

an employee’s official responsibilities despite not appearing in any written job description.”

Id. at 544. This court noted that because Weisbarth was specifically asked by her

employer to speak with the consultant and to comment on departmental morale and

performance, her speech “indisputably ‘ow[ed] its existence to [her] professional

responsibilities,’” thereby precluding this court from finding that Weisbarth spoke “as a

citizen.” Id. (second alteration in original) (quoting Garcetti, 547 U.S. at 421).

       Just as it did in Weisbarth, the holding of Garcetti controls the outcome of the case

at bar.   Here, the speech in question occurred during interviews conducted by a

representative of the SCAO pursuant to a formal management oversight review of the 41B

District Court. As in Weisbarth, the Appellants participated in the interviews, and produced

the speech in question, at the behest of their employer and as part of their professional

responsibilities as employees of the 41B District Court. As such, their comments regarding

                                             12
the work habits of Judge Cannon were not made “as citizens.” Consequently, Appellants

have no First Amendment cause of action and summary judgment was therefore properly

granted.

       As we have determined that Appellants spoke pursuant to their employment

responsibilities, we need not address the district court’s holding that the speech at issue

did not touch on matters of public concern, or alternatively, that Judge Davis would be

entitled to qualified immunity against this claim as a reasonable official could conclude that

the speech at issue constituted false statements knowingly or recklessly made. See

Weisbarth, 499 F.3d at 546.

       D.     Fourteenth Amendment Due Process

              Appellants contend that the 41B District Court terminated their employment

in contravention of the Due Process Clause of the Fourteenth Amendment when it failed

to provide them with pre- or post-termination hearings. The Fourteenth Amendment’s

guarantee of procedural due process assures that the deprivation of life, liberty, or property

will not be effectuated without “notice and opportunity for hearing appropriate to the nature

of the case.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1986) (internal

quotation omitted). When considering a claim for violation of due process rights, we

engage in a two-step analysis: we determine first “whether a protected property interest

exists,” and then determine “what procedures are required to protect that interest.”

Singfield v. Akron Metro. Hous. Auth., 389 F.3d 555, 565 (6th Cir. 2004).

       Appellants’ procedural due process claim depends on their having had a property

right in continued employment; if they did, the 41B District Court could not deprive them



                                             13
of this property without due process. See Loudermill, 470 U.S. at 538. To determine

whether Appellants had such an interest, we look to state law. Bd. of Regents v. Roth, 408

U.S. 564, 577 (1972) (“Property interests, of course, are not created by the Constitution.

Rather, they are created and their dimensions are defined by existing rules or

understandings that stem from an independent source such as state law - rules or

understandings that secure certain benefits and that support claims of entitlement to those

benefits.”). A showing that a public employee may be fired only for cause is sufficient to

satisfy the first step of the analysis. Farhat v. Jopke, 370 F.3d 580, 595 (6th Cir. 2004).

       “Generally, and under Michigan law by presumption, employment relationships are

terminable at the will of either party.” Lytle v. Malady, 579 N.W.2d 906, 910 (Mich. 1998).

However, this presumption of employment at will can be overcome by “proof of either a

contract provision for a definite term of employment, or one that forbids discharge absent

just cause.” Id. The Michigan Supreme Court has recognized three ways a discharged

public employee may prove such contractual terms:

       (1) proof of a “contractual provision for a definite term of employment or a
       provision forbidding discharge absent just cause;” (2) an express agreement,
       either written or oral, regarding job security that is clear and unequivocal; or
       (3) a contractual provision, implied at law, where an employer’s policies and
       procedures instill a “legitimate expectation” of job security in the employee.

Id. at 911 (quoting Rood v. Gen. Dynamics Corp., 507 N.W.2d 591, 597, 598 (Mich. 1993),

and Toussaint v. Blue Cross and Blue Shield, 292 N.W. 2d 880, 892 (Mich. 1980)). As

there are no written employment contracts, or express agreements at issue in this case,

if Appellants are to overcome the presumption of at-will employment, they must do so

under the “legitimate expectations” theory.



                                              14
      Under Michigan law, courts must undertake a two-step inquiry to evaluate legitimate-

expectation claims. Lytle, 579 N.W.2d at 911. First, the court must decide “what, if

anything, the employer has promised.” Rood, 507 N.W.2d at 606. If the court concludes

that a promise has been made, “the second step is to determine whether the promise is

reasonably capable of instilling a legitimate expectation of just-cause employment in the

employer’s employees.” Id. at 607. The Michigan Supreme Court has cautioned that not

all policy statements will constitute promises: “[a] lack of specificity of policy terms or

provisions, or a policy to act in a particular manner as long as the employer so chooses,

is grounds to defeat any claim that a recognizable promise in fact has been made.” Lytle,

579 N.W.2d at 911.

      Appellants argue that there exists a confluence of facts which establish that Judge

Cannon’s policies constituted a promise of just-cause employment. Those facts are: (1)

that Judge Cannon was solely responsible for adopting and implementing policies related

to employee termination at the Clinton Township branch of 41B District Court; (2) that

Judge Cannon adopted and consistently enforced a just-cause employment policy which

he communicated to all his employees; and (3) that the Appellants understood that Judge

Cannon’s just-cause policy applied to them. Appellants contend that these facts are

established through their own deposition testimony, and the deposition testimony and

affidavit of Judge Cannon. Appellees counter that the deposition testimony relied on by

Appellants, and the affidavits of former and current 41B District Court employees who are

not party to this suit, establish that Judge Cannon not only made no promises to his

employees, and implemented no definite policy regarding their employment status, but

even made sure, at staff meetings, to remind his employees that they were employed “at

                                            15
will.”

         Thus, there exists a direct conflict in the evidence regarding the exact contours of

the termination policy - if any existed - employed by Judge Cannon, and whether such a

policy was ever communicated to, and understood by, all of his employees. This is a

genuine issue of material fact which requires further development of the record and cannot

be properly resolved on summary judgment. As such, the district court erred in dismissing

Appellants’ procedural due process claims.

         E.     Prospective Injunctive Relief

                Appellants assert that the district court erred in dismissing their claims for

prospective injunctive relief - e.g., injunction against further retaliation and reinstatement -

against Judge Davis on the grounds that Appellants failed to establish that Judge Davis

could be held liable in her official capacity as a “person” under § 1983. The district court

relied upon Monell v. Department of Social Services, 436 U.S. 658 (1978), for the

proposition that in order to state a claim against a state official in their official capacity,

Appellants had to establish that Judge Davis’ acts represented an “official policy or custom”

of the 41B District Court. This reliance was misplaced, as Monell, which established the

circumstances under which a municipality may be held vicariously liable as a person under

§ 1983 for injuries inflicted by its employees pursuant to a government policy or custom,

is not relevant to whether a state official, sued in her official capacity, qualifies as a

“person” under § 1983.

         It is settled law that “[a] state official in his or her official capacity, when sued for

injunctive relief, would be a person under § 1983 because ‘official-capacity actions for



                                                16
prospective relief are not treated as actions against the State.’” Will v. Mich. Dep’t of State

Police, 491 U.S. 58, 71 n.10 (1989) (quoting Kentucky v. Graham, 473 U.S. 159, 167 n.14

(1985)); Ex Parte Young, 209 U.S. 123, 159-60 (1908); Sutton v. Evans, 918 F.2d 654, 657

(6th Cir. 1990) (stating that there is “ample room for an action against state officials insofar

as it seeks prospective relief allowed by the Eleventh Amendment”).

       Accordingly, we reverse the district court’s dismissal of Appellants’ claims for

prospective injunctive relief against Judge Davis in her official capacity, and remand for

further proceedings.

                                    III.   CONCLUSION

       For all of the reasons set forth above, we AFFIRM the district court’s grant of

summary judgment on the issue of First Amendment retaliation, but REVERSE the district

court’s grant of summary judgment dismissing (1) 41B District Court as a party on the

grounds of sovereign immunity; (2) Appellants’ Fourteenth Amendment procedural due

process claims; and (3) Appellants’ claims for prospective injunctive relief against Chief

Judge Davis in her official capacity. Accordingly, we REMAND for further proceedings

consistent with this opinion.




                                              17
       ALICE M. BATCHELDER, Circuit Judge, concurring in part and dissenting in

part. I agree with the majority opinion’s conclusion that the district court’s judgment with

regard to the First Amendment retaliation claim should be affirmed, but I would affirm the

district court’s judgment in its entirety. To begin with, although I agree that the defendants

have not definitively demonstrated that the state would be liable to pay any money

judgment that the plaintiffs might recover, the responsibility for payment is but one factor

— albeit often the weightiest one — we must consider in determining whether 41B District

Court is an arm of the state for purposes of 11th Amendment immunity. Here, however,

both the Michigan Constitution and Michigan statutory provisions weigh heavily in favor of

a finding that 41B is in fact an arm of the state. See Mich. Const. Art. VI, § 1 (Vesting the

“judicial power of the state” in “one court of justice” that is divided into several divisions,

each devoting its attention to a certain level of judicial administration (emphasis added));

Mich Const. Art. VI, § 4 (Vesting the Supreme Court of Michigan with “general

superintending control over all courts” (emphasis added)); Mich. Comp. Laws § 600.151

(Reiterating Mich. Const. Art. VI, § 1); Mich. Comp. Laws § 600.8101(1) (Establishing one

district court for the State of Michigan, and dividing that court into judicial districts “each of

which is an administrative unit subject to the superintending control of the supreme court.”

(emphasis added)); Mich. Comp. Laws § 600.8221 (Making clear that the local control of

district courts is “subject to the supervision of the supreme court”); see also Judges of the

74th Judicial Dist. v. County of Bay, 190 N.W.2d 219, 224 (Mich. 1971) (“Michigan has but

one district court. For the administration of the district court, the state is divided into judicial

districts.”); Judicial Attys. Ass’n v. State, 459 Mich. 291, 299 (Mich. 1998) (“Despite the



                                                18
complications of the trial court environment, the case law, taken as a whole, has come to

strongly affirm that the fundamental and ultimate responsibility for all aspects of court

administration, including operations and personnel matters within the trial courts, resides

within the inherent authority of the judicial branch [of the State].”). In light of those

provisions, and the case law interpreting them, I would hold that 41B is, as a matter of law,

an arm of the state and is therefore immune from suit in federal court, and is not a proper

defendant in an action brought pursuant to 42 U.S.C. § 1983. See Will v. Mich. Dep’t of

State Police, 491 U.S. 58, 64 (1989) (“[A] State is not a person within the meaning of §

1983.”).

       More importantly, I would hold that the plaintiffs did not present evidence from which

the trier of fact could conclude that they had a property interest in their employment.

“Generally, and under Michigan law by presumption, employment relationships are

terminable at the will of either party.” Lytle v. Malady, 458 Mich. 153, 163 (Mich. 1998).

In my view, the plaintiffs demonstrated, at best, that Judge Cannon, as a general practice,

utilized a progressive discipline process and likely intended to discharge employees for

good cause; they did not present evidence that Judge Cannon in fact had any established

progressive discipline formula that he applied or any specific policy governing employee

discharge, or that he was — or even believed that he was — actually bound by any such

formula or policy. “A lack of specificity of policy terms or provisions, or a policy to act in a

particular manner as long as the employer so chooses, is grounds to defeat any claim that

a recognizable promise has in fact been made.” Lytle, 458 Mich. at 165.

       Nor did the plaintiffs present evidence supporting their claim that they had a

legitimate expectation that they could be discharged only for just cause. Even if Judge

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Cannon did, as plaintiffs contend, adopt the Township’s Disciplinary Action Procedure

(“TDAP”), that fact is not sufficient to rebut Michigan’s at-will presumption. Under the

TDAP’s progressive discipline process, the employer retains discretion over whether to use

the process at all and how to implement the process. Furthermore, by its own terms, the

TDAP’s just-cause provisions apply to only civil service and union employees. This means

that even if the Court adopted TDAP, 41B’s employees would not have had a legitimate

expectation of just-cause discipline because none of them were civil service or union

employees. For the plaintiffs in this case to have benefitted from TDAP’s provisions, the

Court would have had to adopt and modify TDAP’s provisions; at the very least, the Court

would have had to make the just-cause provisions apply to non-civil service and non-union

employees. But the Court would have had to explain these modifications to its employees,

including which portions of TDAP were modified and how the modified provisions would

be applied.   The record does not contain any evidence that such modifications or

explanations ever took place. At best, plaintiffs provided evidence that they had a

subjective belief that they would be discharged only for cause, and a subjective belief is

wholly insufficient to establish a protected property interest.      See Grow v. General

Products, Inc., 457 N.W.2d 167, 169 (Mich. Ct. App. 1990) (“It is well settled that a mere

subjective expectation on the part of an employee is insufficient to create a jury question

as to whether an employment contract may be terminated only for just cause.”).

       Finally, because the plaintiffs have not presented evidence that they had a property

interest in their jobs or that they had a legitimate expectation that they could be discharged

only for good cause, they have no basis upon which they may be granted prospective

injunctive relief against Judge Davis.

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