                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 18a0524n.06

                                          No. 18-1192

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

 JULIE PEFFER; JESSE PEFFER,                        )
                                                                                    FILED
                                                                               Oct 22, 2018
                                                    )
        Plaintiffs-Appellants,                      )                     DEBORAH S. HUNT, Clerk
                                                    )
 v.                                                 )          ON APPEAL FROM THE
                                                    )          UNITED STATES DISTRICT
 TYLER THOMPSON;             DAN     KING;     RICH )          COURT FOR THE WESTERN
 KOPACH,                                            )          DISTRICT OF MICHIGAN
                                                    )
        Defendants-Appellees.                       )
                                                    )

       Before: KEITH, COOK, and LARSEN, Circuit Judges.

       LARSEN, Circuit Judge. Julie and Jesse Peffer filed this action pursuant to 42 U.S.C.

§ 1983 against Tyler Thompson, former Osceola County prosecutor, Dan King, a Michigan State

Police officer, and Rich Kopach, an Osceola County deputy sheriff. The Peffers alleged claims of

First Amendment retaliation and false light invasion of privacy. The district court dismissed the

case for failure to state a claim upon which relief could be granted. We AFFIRM.

                                               I.

       The factual allegations in the Peffers’ complaint are insufficient to allow us to piece

together the events leading up to the filing of this § 1983 claim. Information gleaned from

subsequent motions offers some assistance. In June 2012, Jesse was charged in Mecosta County,

Michigan, with possessing marijuana with intent to deliver and conspiracy to possess marijuana

with intent to deliver. Then, in early 2014, he was charged in Osceola County, Michigan, with

unlawful possession of marijuana with intent to deliver, manufacturing marijuana, and maintaining
No. 18-1192, Peffer v. Thompson


a drug house. To resolve the charges, Jesse apparently pleaded nolo contendere to false pretenses

in each county. He was sentenced to two days in jail and given no probation. Julie was apparently

charged with conspiracy to deliver marijuana in late 2012. According to the Peffers, Julie

“negotiated a complete dismissal of the criminal charges against her in exchange for signing a

consent judgment for the civil forfeiture” of money. The Peffers contend that their marijuana-

related activities comported with the Michigan Medical Marihuana Act, Mich. Comp. Laws

§ 333.26421 et seq., although we note that no legal determination was made to that effect.

        In June 2014, Thompson, allegedly with the assistance of King and Kopach, filed two

affidavits with the Osceola County Register of Deeds for properties allegedly owned by the

Peffers; those affidavits stated:

                Affiant is aware that facts, conditions, and/or events that are contained in
        search warrants and police reports . . . that may lead to a complaint for forfeiture of
        real property . . . pursuant to MCL 333.7521 et seq. MCL 333.7521, et seq. allows
        for the seizure and forfeiture of real property obtained as a result of, or used, or
        intended to be used to facilitate a violation of the drug laws of Michigan.

The Peffers contend that the defendants filed these affidavits in retaliation for their agreeing to

plea deals that resulted in a lenient sentence for Jesse and dismissal of the charges against Julie.

        The Peffers sued defendants on June 23, 2017, raising two claims of First Amendment

retaliation under § 1983 and a claim of false light invasion of privacy under Michigan law. The

defendants filed motions to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure. The Peffers responded to the motions and subsequently moved to file an amended

complaint. The district court granted the defendants’ motions to dismiss and denied the Peffers’

motion to amend their complaint. The court determined that the Peffers had failed to adequately

plead that they were engaged in an activity protected by the First Amendment, a necessary showing




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No. 18-1192, Peffer v. Thompson


in a First Amendment retaliation claim. The court also determined that the Peffers failed to state

a claim for false light invasion of privacy. The Peffers timely appealed.

                                                 II.

       We review de novo a district court’s ruling on a Rule 12(b)(6) motion to dismiss. Kaminski

v. Coulter, 865 F.3d 339, 344 (6th Cir. 2017). In reviewing a 12(b)(6) motion, the court must view

the complaint in the light most favorable to the plaintiff, accepting as true all allegations in the

complaint and drawing all reasonable inferences in the plaintiff’s favor. Id. “To survive a motion

to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff must plead “more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly,

550 U.S. at 555 (citation omitted). The plaintiff must provide “factual content that allows the court

to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,

556 U.S. at 678 (citation omitted).

       First Amendment Retaliation. The Peffers first argue that the district court erred by

dismissing their First Amendment retaliation claim. “For a retaliation claim to survive a motion

to dismiss, ‘[a] § 1983 plaintiff must plead factual allegations sufficient to establish that (1) the

plaintiff engaged in constitutionally protected conduct; (2) an adverse action was taken against the

plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct;

and (3) the adverse action was motivated at least in part by the plaintiff’s protected conduct.’”

Bright v. Gallia County, 753 F.3d 639, 653 (6th Cir. 2014) (quoting Handy-Clay v. City of

Memphis, 695 F.3d 531, 539 (6th Cir. 2012) (quotation omitted) (alteration in original)).




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No. 18-1192, Peffer v. Thompson


       We struggle to identify the First Amendment protected activity in which the Peffers

allegedly engaged. Their complaint says that the protected activity was their “participat[ion] in

the court proceedings initiated by Defendants and negotiat[ion of] a disposition that did not involve

further incarceration or probation and resulted in fines and costs only.”1 Although the Peffers

assert that these activities constitute First Amendment protected activity, they offer no support for

that assertion. To the extent the Peffers are arguing that the protected activity was their negotiating

of plea bargains, we know of no case holding that the First Amendment protects such activity, and

the Peffers do not offer any. Cf. Weatherford v. Bursey, 429 U.S. 545, 561 (1977) (“[T]here is no

constitutional right to plea bargain . . . .”). To the extent the Peffers are arguing that the First

Amendment protects their participation in pre-trial proceedings, we again know of no precedent

that says that such rights are protected by the First Amendment and, in fact, have precedent

suggesting the contrary. See Mezibov v. Allen, 411 F.3d 712, 717 (6th Cir. 2005) (stating that

“courts have thus far been reluctant to allow the First Amendment to intrude into the courtroom”).

The Peffers contend in their brief on appeal that they were “punished for exercising their

constitutionally protected right to access the courts, partially grounded in the First Amendment’s

protection of the right to ‘petition the Government for a redress of grievances.’” But the Peffers

offer no caselaw supporting their theory that the right to access courts under the Petition Clause of

the First Amendment extends to a defendant’s actions in a criminal proceeding. See Borough of

Duryea v. Guarnieri, 564 U.S. 379, 387 (2011) (stating that the Petition Clause “protects the right



1
  Their brief on appeal attempts to broaden the activities by stating that the First Amendment
protected activity was “Jesse Peffer’s refusal to become an informant, demanding that he be
provided with his procedural and statutory rights such as a preliminary examination, and for both
Plaintiffs to resist the accusations against them and declare their innocence.” Of course, a motion
to dismiss tests only the sufficiency of the allegations in the complaint itself. But even if we were
to consider the actions set forth in appellate briefing, we know of no precedent that would find
them protected by the First Amendment.
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No. 18-1192, Peffer v. Thompson


of individuals to appeal to courts and other forums established by the government for resolution

of legal disputes”).

        The Peffers have thus offered no support for the claim that their alleged activities were

protected by the First Amendment and have not pleaded a viable legal theory of liability against

the defendants. We, therefore, agree with the district court that the Peffers failed to state a claim

for First Amendment retaliation in their original complaint. See United Food & Commercial

Workers Union-Emp’r. Pension Fund v. Rubber Assocs., Inc., 812 F.3d 521, 524 (6th Cir. 2016)

(stating that a complaint must “contain either direct or inferential allegations respecting all material

elements to sustain a recovery under some viable legal theory” (quotations omitted)).

        The district court, moreover, did not abuse its discretion by concluding that any amendment

to the complaint would be futile. See Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 569 (6th Cir.

2003) (“When a district court denies a plaintiff’s motion for leave to amend his complaint, this

court generally reviews the decision for an abuse of discretion.” (citation omitted)). The Peffers’

proposed amended complaint offers more factual allegations as to the defendants’ involvement in

the pre-trial proceedings and in the subsequent recording of the affidavits. What the Peffers do

not do, however, is offer any basis to conclude that they engaged in an activity protected by the

First Amendment. See Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000)

(“A proposed amendment is futile if the amendment could not withstand a Rule 12(b)(6) motion

to dismiss.”).

        False Light Invasion of Privacy. The Peffers also argue that the district court erred by

dismissing their false light invasion of privacy claim. The Peffers contend that the defendants

committed the tort of false light invasion of privacy when they filed the affidavits with the Osceola




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No. 18-1192, Peffer v. Thompson


County Register of Deeds containing what they claim are false allegations that the Peffers had

engaged in controlled substance violations.

       To maintain an action for false light invasion of privacy in Michigan, “a plaintiff must

show that the defendant broadcast to the public in general, or to a large number of people,

information that was unreasonable and highly objectionable by attributing to the plaintiff

characteristics, conduct, or beliefs that were false and placed the plaintiff in a false position.”

Duran v. Detroit News, Inc., 504 N.W.2d 715, 720–21 (Mich. Ct. App. 1993) (citation omitted).

For such a claim, however, “the defendant must have known of or acted in reckless disregard as to

the falsity of the publicized matter and the false light in which the plaintiff would be placed.”

Detroit Free Press, Inc., v. Oakland Cty. Sheriff, 418 N.W.2d 124, 128 (Mich. Ct. App. 1987)

(citation omitted).

       Even if recording an affidavit could be considered publication, the Peffers have failed to

adequately plead facts to show that the defendants publicized false information when filing the

affidavits. According to the Peffers’ complaint, the affidavits were “false to the extent [they] stated

that either Plaintiff had been convicted of an offense involving a violation of drug laws in

Michigan” and “false to the extent [they] alleged that the conduct of Plaintiff’s [sic] was not

allowed by [the Michigan Medical Marihuana Act].” But contrary to the Peffers’ assertions, the

affidavits did neither. The affidavits do not state that either Jesse or Julie were convicted of a drug

offense, only that “that facts, conditions, and/or events” related to drug activity “contained in

search warrants and police reports . . . may lead to a complaint for forfeiture of real property.” In

addition, that the Peffers entered pleas to a non-controlled substance offense or had the charges

dismissed does not make Thompson’s affidavits false.           “[A] criminal prosecution is not a

prerequisite to a forfeiture proceeding” under the statute cited by Thompson in the affidavits. See



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No. 18-1192, Peffer v. Thompson


In re Forfeiture of $53.00, 444 N.W.2d 182, 189 (Mich. Ct. App. 1989) (citing Mich. Comp. Laws

§ 333.7522).

       The Peffers also contend that Thompson’s statements were false because he knew that the

statute of limitations on the forfeiture claim had run. Neither the complaint nor the proposed

amended complaint states the applicable statute of limitations provision. Only in their reply brief

do the Peffers ask us to “take notice of MCL 600.5809(2) setting the statute of limitations at two

years for forfeitures brought in the name of the People of the State of Michigan.” But even if we

were to agree that two years was the applicable limitations period, the Peffers have not offered

enough factual allegations for us to assess the viability of their argument that the statute of

limitations had run. The Peffers offer no facts regarding the conduct that led to the charges, when

they occurred, or whether the same conduct led to the charges for Jesse and Julie. As such, we

cannot assess when the forfeiture claim began to run—i.e., when it “first accrued” to Thompson

or the other defendants. See Mich. Comp. Laws § 600.5809(1). The Peffers, therefore, did not

plead sufficient factual allegations for us to reasonably infer that Thompson knew the statements

in the affidavit were false because the statute of limitations had run. See Iqbal, 556 U.S. at 678.2

       For these reasons, the district court did not err by dismissing the Peffers’ false light invasion

of privacy claim under Rule 12(b)(6).

       Immunity.     In the alternative, the defendants argued that they were protected by

governmental immunity under federal and state law. Considering our conclusion that the Peffers

failed to state a claim upon which relief could be granted under Rule 12(b)(6), we need not address

the defendants’ alternative arguments.



2
 In their proposed amended complaint, the Peffers offered no new allegations relating to the falsity
of the evidence sufficient to overcome a motion to dismiss. We, therefore, agree with the district
court that amendment would have been futile. See Rose, 203 F.3d at 420.
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No. 18-1192, Peffer v. Thompson


                                           ***

      We AFFIRM the judgment of the district court in favor of defendants.




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