                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0423n.06
                             Filed: July 16, 2008

                                           No. 07-5549

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


STEPHEN MANN,                                    )
                                                 )
       Plaintiff-Appellant,                      )
                                                 )
v.                                               )    ON APPEAL FROM THE UNITED
                                                 )    STATES DISTRICT COURT FOR THE
MICHAEL HELMIG, in his capacity as               )    EASTERN DISTRICT OF KENTUCKY
Sheriff of Boone County.                         )
                                                 )
       Defendant-Appellee.                       )
                                                 )
                                                 )
                                                 )

Before: MARTIN, GIBBONS, and GRIFFIN, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Plaintiff-appellant Stephen Mann appeals the

district court’s grant of summary judgment to defendant-appellee Michael Helmig, Sheriff of Boone

County. Mann argues that the district court erred in granting Helmig’s motion for summary

judgment on Mann’s § 1983 claims and denying Mann’s motion for summary judgment. For the

following reasons, we affirm the district court’s decision.

                                                 I.

       The district court recounted the undisputed facts underlying Mann’s § 1983 claim as follows:

       Plaintiff Stephen Mann ("Mann") is a resident of Burlington, Kentucky. On or about
       December 1, 1999, the Kenton County District Court entered a Domestic Violence
       Order ("DVO") against Mann based on a petition filed by Mann's sister, Gladys


                                                -1-
Wagner. (Exh. 1, Def. MSJ) Among other things, the DVO restrained Mann from
purchasing, owning, or possessing firearms. (Exh. 2, Def. MSJ)

At Wagner's request, the Kenton County District Court extended the DVO several
times. In 2002, Mann petitioned the court to amend the DVO to lift the firearm
restrictions on the grounds that he and Wagner were not "intimate partners" within
the meaning of 18 U.S.C. § 922(g).

On November 6, 2002, the Kenton County court issued an opinion stating that it
"may," depending on the relationship of the parties, be a violation of 18 U.S.C.
§ 922(g) for Mann to possess firearms while subject to a DVO. (Exh. 4, Def. MSJ)
The court further stated that it would "issue a new order of protection incorporating
the appropriate statement of the law into its order and extending the order for one
additional year." (Id.) The court then entered an Amended DVO which stated:
"Pursuant to 18 U.S.C. § 922(g)(8), it may be a federal violation to purchase, receive
or possess a firearm or ammunition while subject to this order." (Exh. 5, Def. MSJ)
(emphasis added)

On December 1, 2003, the Amended DVO bearing the same language was extended
through December 1, 2005. (Exh. 6, Def. MSJ)

On May 16, 2005, while the Amended DVO was still in effect, the Boone County
Sheriff's Department received a call reporting gunshots at [Mann’s] residence.
Deputy Chris Combs responded to the call.

Deputy Combs arrived at [Mann’s] house and approached the front door. [Mann]
opened the door and let Combs into the house. Combs told [Mann] he had received
a "shots fired" call and asked if [Mann] was the source of the shots. [Mann] stated
that he had been shooting at a target in his backyard. [Mann] then led Combs through
the kitchen, out the back door and onto the porch, where he showed Combs three
rifles sitting on his picnic table. Combs thanked [Mann] for his cooperation and left.

When he returned to his car, Deputy Combs received a message that the person who
had made the "shots fired" call wanted to talk with him. That person was Mark Mann,
[Mann’s] brother, who lived next door. Deputy Combs drove next door, where he
was approached by Mark Mann's wife and another woman. After Deputy Combs
explained that it was not illegal for [Mann] to fire his guns in his own back yard in
that part of the county, the women told Combs that [Mann] was subject to a DVO.

Deputy Combs returned to [Mann’s] property to discuss the DVO with him. By then,
[Mann] had returned to the back yard and resumed firing his guns. Deputy Combs
told [Mann] to unload and put his weapon down, which [Mann] did. Deputy Combs
asked [Mann] if there was a DVO against him, and [Mann] said yes. [Mann] and


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       Deputy Combs went into the house where [Mann] showed Combs a copy of the
       amended DVO entered on December 1, 2003. [Mann] stated that it did not prevent
       him from possessing firearms because he was not an "intimate partner" of the person
       who took out the DVO. Reviewing the language of the amended DVO, however,
       Deputy Combs was unsure whether it restricted [Mann] from having guns.

       [Mann] then gave Deputy Combs the phone number of his attorney who had
       represented him in connection with the DVO. Combs tried to reach that attorney but
       could not. Combs then tried to reach an attorney at the Boone County Attorney's
       Office but could not do so. Combs then called the Commonwealth Attorney's Office
       in Boone County and spoke to an attorney in that office regarding the situation. The
       attorney told Combs that [Mann] was not permitted to possess firearms if he was
       subject to an active DVO.

       Deputy Combs then told [Mann] that he was going to take all his firearms and asked
       where they were located. Combs and another deputy who had arrived retrieved a total
       of six guns and a box of ammunition. After giving [Mann] a receipt for the weapons,
       the deputies left and took the items to the Boone County Sheriff's Department where
       the weapons were logged into the property room.

       Sometime thereafter, the Boone County Sheriff's office informed [Mann] that he
       could come retrieve his guns, but [Mann] apparently has not done so.

Mann v. Helmig, 2007 U.S. Dist. LEXIS 23839, at *4-5 (E.D. Ky. March 30, 2007).

       On August 2, 2005, Mann filed suit against Boone County Sheriff Helmig in his official

capacity pursuant to 42 U.S.C. § 1983.1 In his complaint, Mann alleged that Boone County had

violated his Second, Fourth, Fifth, and Fourteenth Amendment rights; in addition, Mann advanced

a claim of conversion under Kentucky law. Both parties subsequently filed motions for summary

judgment. The district court granted Helmig’s motion for summary judgment and denied Mann’s

motion for summary judgment, concluding that “plaintiff has not shown, as a matter of law, that this

single, isolated incident was part of any pattern of unconstitutional conduct by Boone County, or that



       1
        As he makes clear in his reply brief, Mann’s “complaint did not name Sheriff Helmig in his
individual capacity, but only in his official capacity. As such, his cause of action is against Boone
County.”

                                                 -3-
it was otherwise taken pursuant to any County policy or custom.” Mann, 2007 U.S. Dist. LEXIS

23839, at *8. In turn, the district court dismissed Mann’s claim of conversion, declining to exercise

supplemental jurisdiction, pursuant to 28 U.S.C. § 1367(c).

                                                      II.

        We review de novo the grant of summary judgment by a district court. Miller v. Am. Heavy

Lift Shipping, 231 F.3d 242, 246 (6th Cir. 2000). Summary judgment may be granted only if there

are no genuine issues of material fact and one party is entitled to a judgment as a matter of law. Fed.

R. Civ. P. 56(c). A dispute over a material fact cannot be “genuine” unless a reasonable jury could

return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

In reviewing a district court’s decision to grant summary judgment, we view all the facts and the

inferences drawn therefrom in the light most favorable to the nonmoving party. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

                                                      III.

        As Mann states unequivocally in his reply brief, his cause of action pursuant to § 1983 is

against Sheriff Helmig in his official capacity. As a result, Mann’s cause of action is a suit against

Boone County. Moore v. City of Harriman, 272 F.3d 769, 776 (6th Cir. 2001) (en banc) (“[A] suit

against a state official in his or her official capacity is not a suit against the official but rather a suit

against the official's office . . . as such, it is no different from a suit against the State itself.”) (quoting

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

        Pursuant to a § 1983 suit, “A municipal liability claim . . . must be examined by applying

a two-pronged inquiry: (1) Whether the plaintiff has asserted the deprivation of a constitutional right

at all; and (2) Whether the [municipality] is responsible for that violation.” Doe v. Claiborne


                                                      -4-
County, 103 F.3d 495, 505-06 (6th Cir. 1996). In satisfying the second prong of this inquiry, “A

plaintiff who sues a municipality for a constitutional violation under § 1983 must prove that the

municipality’s policy or custom caused the alleged injury.” Ellis v. Cleveland Mun. Sch. Dist., 455

F.3d 690, 700 (6th Cir. 2006) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978)).

        In order to prove the existence of a municipality’s policy or custom, plaintiffs “can look to

(1) the municipality’s legislative enactments or official agency policies; (2) actions taken by officials

with final decision-making authority; (3) a policy of inadequate training or supervision; or (4) a

custom of tolerance or acquiescence of federal rights violations.” Thomas v. City of Chattanooga,

398 F.3d 426, 429 (6th Cir. 2005). In his appeal, Mann pursues the second option, arguing that

Deputy Combs confiscated Mann’s firearms and ammunition pursuant to a policy of the Boone

County Sheriff’s department.

        However,

        not every decision by municipal officers automatically subjects the municipality to
        § 1983 liability. Municipal liability attaches only where the decisionmaker possesses
        final authority to establish municipal policy with respect to the action ordered. The
        fact that a particular official – even a policymaking official – has discretion in the
        exercise of particular functions does not, without more, give rise to municipal
        liability based on an exercise of that discretion.

Pembaur v. City of Cincinnati, 475 U.S. 469, 481-82 (1986). Thus, Mann must demonstrate that

Deputy Combs acted pursuant to a policy established by an individual who possessed final decision-

making authority and that this policy caused the alleged injuries. As the district court correctly

noted, Mann cannot satisfy this requirement.

                                                   1.

        The Supreme Court has defined the term “policy” as a “word [that] generally implies a course



                                                  -5-
of action consciously chosen from among various alternatives.” Oklahoma City v. Tuttle, 471 U.S.

808, 823 (1985). At different stages of this litigation, Mann has vacillated between two different

arguments as to what policy was the cause of his alleged constitutional damages.

       In his brief before this court, Mann describes what he contends to be the policy that caused

his alleged injury: “it was the policy or custom of the Boone County Sheriff’s Office to follow the

advice of the County or Commonwealth Attorney when a deputy was unsure how deal [sic] with a

certain situation.” (Appellant’s Br. 18-19.) Mann repeats this characterization of the policy or

custom of which he complains on a number of other occasions: “Boone County’s Custom was to

follow advice of Commonwealth Attorney” (Appellant’s Br. 17); “Following the advice of the

Commonwealth Attorney was Boone County’s plan of action” (Appellant’s Br. 19); “[I]t was the

custom of the Boone County Sheriff to always follow the direction of the Commonwealth Attorney”

(Appellant’s Br. 10); “The decision to confiscate Mann’s firearms was made by Deputy Combs, who

had sought and followed the advice of a Commonwealth Attorney . . . a procedure that is customary

practice for the Boone County Sheriff’s Office.” (JA 139). This argument thus identifies the policy

of consulting an attorney as the cause of Mann’s alleged damages.

       At oral argument, however, Mann appeared to contend that he was in fact contesting a

different policy – the Commonwealth Attorney’s actual advice to Deputy Combs to seize Mann’s

firearms and ammunition; and it was this “policy” that caused Mann’s constitutional damages. This

second characterization of the policy also appears at least once in Mann’s brief before this court: “In

the case at bar . . . the policy decision at issue was in fact unconstitutional. It should go without

saying that the unlawful confiscation of a citizen’s firearms from his or her own home violates the

constitution.” (Appellant’s Br. 20). However, regardless of which characterization Mann intends


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to pursue in his appeal, his claims lack merit.

                                                  2.

       Mann’s first characterization of the Boone County policy – consulting an attorney and

following his advice when unsure how to proceed – fails because he can neither satisfy the causation

element of a § 1983 action, nor provide sufficient evidence of the existence of a facially

constitutional policy.

       In Oklahoma City v. Tuttle, 471 U.S. 808 (1985), the Supreme Court explained how the

causation element of a § 1983 claim functions when the policy in question was not itself

unconstitutional:

       [S]ome limitation must be placed on establishing municipal liability through policies
       that are not themselves unconstitutional, or the test set out in Monell will become a
       dead letter. Obviously, if one retreats far enough from a constitutional violation some
       municipal “policy” can be identified behind almost any such harm inflicted by a
       municipal official; for example, [the police officer] would never have killed [the
       defendant’s husband] if Oklahoma City did not have a “policy” of establishing a
       police force. But Monell must be taken to require proof of a city policy different in
       kind from this latter example before a claim can be sent to a jury on the theory that
       a particular violation was “caused” by the municipal “policy.” At the very least there
       must be an affirmative link between the policy and the particular constitutional
       violation alleged.

Id. at 823; see also City of Springfield v. Kibbe, 480 U.S. 257, 267-268 (1987) (“In some sense, of

course, almost any injury inflicted by a municipal agent or employee ultimately can be traced to

some municipal policy. Finding § 1983's causation requirement satisfied by such a remote

connection, however, would eviscerate Monell's distinction, based on the language and history of

§ 1983, between vicarious liability and liability predicated on the municipality's own constitutional

violations.” (emphasis in original)). Thus “[p]roof merely that such a policy or custom was ‘likely’

to cause a particular violation is not sufficient; there must be proven at least an ‘affirmative link’


                                                  -7-
between policy or custom and violation; in tort principle terms, the causal connection must be

‘proximate,’ not merely ‘but-for’ causation-in-fact.” Spell v. McDaniel, 824 F.2d 1380, 1388 (4th

Cir. 1987); see also Kneipp v. Tedder, 95 F.3d 1199, 1213 (3d Cir. 1996) (“A plaintiff must also

establish that the government policy or custom was the proximate cause of the injuries sustained.”);

King v. Massarweh, 782 F.2d 825, 828 (9th Cir. 1986) (noting that the inquiry under § 1983 is

whether the actions in question “proximately caused” the alleged damages); Francis v. Barlow, 2006

U.S. Dist. LEXIS 30394, at *11 (W.D. Ky. May 16, 2006) (“A § 1983 complaint must allege that

specific conduct by the defendant was the proximate cause of the constitutional injury.”).

       While Mann is somewhat unclear on his theory of causation, it would seem that his claim

requires the following argument: the policy of “follow[ing] the advice of the County or

Commonwealth Attorney when a deputy was unsure how deal [sic] with a certain situation” was the

proximate cause of Mann’s alleged injuries. This theory of causation seems to be of the precise type

the Supreme Court sought to foreclose in Tuttle. Indeed, one can always “retreat [] far enough” to

find a policy that “caused” the alleged constitutional violation. See Tuttle, 471 U.S. at 823. But the

proximate cause of Mann’s alleged constitutional injuries was either the ambiguity of his DVO, the

erroneous advice of the Commonwealth Attorney, or, less directly, the inability of Deputy Combs

to contact Mann’s attorney. There simply is too tenuous a connection between the policy of

contacting and following the advice of the county or Commonwealth Attorney and the injuries

sustained by Mann. Thus, it cannot be said that there is an affirmative link between the “policy” and

the confiscation of Mann’s firearms and ammunition. In turn, Mann has not satisfied the causation

element of his § 1983 claim, a conclusion that justifies the district court’s grant of Helmig’s motion

for summary judgment.


                                                 -8-
        Moreover, Mann provides proof of only one incident as the basis for his claim that there

exists a county policy that caused his alleged damages. Mann does correctly note that in some cases,

proof of a single incident where a municipal official caused constitutional injuries is sufficient to

demonstrate the existence of an unconstitutional policy or custom: “The Supreme Court has stated

that, under appropriate circumstances, liability may be imposed upon a municipality for a single

decision by a policymaker.” Monistere v. City of Memphis, 115 F. App’x 845, 851 (6th Cir. 2004)

(citing Pembaur, 475 U.S. at 480). However, given the policy of which Mann complains, this is not

the case: “where the policy relied upon is not itself unconstitutional, considerably more proof than

the single incident will be necessary in every case to establish both the requisite fault on the part of

the municipality, and the causal connection between the ‘policy’ and the constitutional deprivation.”

Tuttle, 471 U.S. at 824; accord Bills v. Aseltine, 958 F.2d 697, 708 (6th Cir. 1992).

        In the instant case, the policy of consulting with the Commonwealth Attorney is clearly not

itself unconstitutional. Thus to survive summary judgment, Mann cannot simply rely on one incident

to satisfy his burden.

        For these reasons, Mann’s claims, based upon his first characterization of the Boone County

policy, fail.

                                                   3.

        The second characterization of Mann’s argument, offered at oral argument and at one point

in his brief (Appellant’s Br. 20), is that the attorney’s decision to tell Deputy Combs to confiscate

Mann’s weapons was the policy causing his constitutional injuries.

        The obvious difficulty with this argument is that Mann did not sue the Commonwealth

Attorney or his agents, and thus their decisions cannot be challenged here. Certainly, there is no


                                                  -9-
basis in this record for concluding that the Commonwealth Attorney creates policy for Boone

County, the only defendant in this case. This iteration of Mann’s argument fares no better than his

first version.

                                               IV.

        For the foregoing reasons, we affirm the district court’s grant of summary judgment.




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