                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0092n.06

                                       Case No. 19-3462

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                FILED
                                                                           Feb 07, 2020
WILLIAM SPITHALER, dba Gustavus                    )                   DEBORAH S. HUNT, Clerk
Firewoods and Hardwoods, LLC; BETH                 )
SPITHALER, dba Yoder Smoking Woods,                )
                                                   )      ON APPEAL FROM THE UNITED
       Plaintiffs-Appellants,                      )      STATES DISTRICT COURT FOR
                                                   )      THE NORTHERN DISTRICT OF
v.                                                 )      OHIO
                                                   )
RANDY SMITH, in his individual capacity            )
and in his official capacity as the Trumbull       )
County Engineer; TRUMBULL COUNTY,                  )
OHIO,                                              )
                                                   )
       Defendants-Appellees.                       )


       BEFORE: SUHRHEINRICH, DONALD, and MURPHY, Circuit Judges.

       MURPHY, Circuit Judge. William and Beth Spithaler believe that Randy Smith, the

Trumbull County Engineer, denied their applications for hauling permits in retaliation for Mr.

Spithaler’s public-records requests. But, according to the district court, the Spithalers lacked

enough evidence that the permit denials were motivated by Smith’s disdain for their requests for

information. So the court granted summary judgment to Smith and Trumbull County on the

Spithalers’ First Amendment retaliation claim. Seeing no error, we affirm.

       The Spithalers, a married couple, operate separate businesses out of their home on Davis-

Peck Road in Trumbull County, Ohio. Mr. Spithaler runs a logging business named Gustavus
No. 19-3462, Spithaler, et al. v. Smith, et al.


Firewoods and Hardwoods, LLC. Ms. Spithaler runs a business named Yoder Smoking Woods

that sells leftover wood from the logging business to restaurants and individuals for their use in

cooking and smoking. The Spithalers transport their products on Trumbull County roads.

       To manage the wear and tear from overweight vehicles, the State of Ohio has directed local

authorities to issue permits for heavy hauling on roads within their jurisdictions. See Ohio Rev.

Code § 4513.34(A)(1). In 2017, Randy Smith’s staff revamped Trumbull County’s permitting

program. The new program contemplates different permit options based on whether an applicant

plans to use a “load-posted” road: a road that can handle only limited weights and so has a certain

weight limit “posted.” Haulers whose operations are based on load-posted roads must apply for a

“continuing-operator permit,” which costs $500 every 90 days (about $2000 annually). Haulers

whose operations are based on other roads need only obtain an “annual-supplier permit,” which

costs much less ($50 annually). The county engineer’s office evaluates both types of applications,

but the county commissioners must provide the final approval for permits.

       On March 9, 2018, William Spithaler visited the county engineer’s office to learn more

about this permitting program. A member of Smith’s staff invited Spithaler to look over the of-

fice’s permitting-program records, and Spithaler left with some 400 copied pages. A few days

later, he requested the cheaper annual-supplier permit for his logging business. At that time Davis-

Peck Road was not load-posted. But the engineer’s office had recently received a complaint of

“large and deep potholes” on the road, and a staff member who had observed its poor condition

recommended that it be load-posted. So the office decided to load-test the road before processing

Spithaler’s application. Smith describes that type of testing as part of the “discretionary due dili-

gence in reviewing special hauling permit applications.” Shortly after the decision to test the road,

Ms. Spithaler also applied for an annual-supplier permit for her business.



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       The county engineer’s office hired a private engineering firm to evaluate Davis-Peck Road.

The parties agree that this private firm undertook objective testing consistent with accepted engi-

neering standards. It concluded that Davis-Peck Road had a limited load-bearing capacity and that

it should be load-posted with a 10-ton weight limit. That finding forced the Spithalers to consider

the pricier continuing-operator permit.

       Rather than apply for that permit, the Spithalers sued Smith and Trumbull County under

42 U.S.C. § 1983. They alleged, among other claims, that Smith and Trumbull County violated

the First Amendment by initiating the testing on Davis-Peck Road and denying the cheaper permits

in retaliation for Mr. Spithaler’s public-records requests. The district court granted summary judg-

ment to Smith and Trumbull County on all claims. Spithaler v. Smith, No. 4:18-cv-1361, 2019

WL 2076095, at *6 (N.D. Ohio May 9, 2019). It recognized that the Spithalers’ retaliation claim

required them to show that Smith and Trumbull County took adverse actions against them at least

in part because of their allegedly protected activity (the public-records requests). Id. at *5. Yet

the Spithalers failed to present any evidence that the testing or permit denials sprang from such a

retaliatory motive. Id. Rather, the testing arose from Mr. Spithaler’s permit application, and the

permit denials arose from the objective need for a 10-ton weight limit on Davis-Peck Road. Id.

The Spithalers appeal.

       We have said many times that plaintiffs asserting First Amendment retaliation claims must

prove three elements to state a prima facie case. Element One: The plaintiffs must show that they

have engaged in activity protected by the First Amendment. Element Two: The plaintiffs must

show that a defendant took a sufficiently serious action against the plaintiffs, one that would deter

an ordinary person from continuing in the constitutionally protected activity. Element Three: The

plaintiffs must show a causal connection between these two elements, meaning that the defendant



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was motivated to take the adverse action in part because of the plaintiffs’ protected activity. See

Meadows v. Enyeart, 627 F. App’x 496, 502 (6th Cir. 2015); Holzemer v. City of Memphis, 621

F.3d 512, 520 (6th Cir. 2010); Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc).

Here, the Spithalers argue that the First Amendment protected Mr. Spithaler’s requests for public

records. They argue that Smith’s decisions to load-test Davis-Peck Road and to deny the annual-

supplier permits qualify as adverse actions. And they argue that Smith was motivated by Mr.

Spithaler’s records requests when deciding to load-test the road and deny the permits.

       Before assessing the Spithalers’ claim, we must begin with some procedural niceties about

the § 1983 cause of action. The Spithalers sued Smith both in his personal capacity and in his

official capacity, and they separately sued Trumbull County. The different defendants come with

different defenses. In his personal capacity, Smith may seek the cover of qualified immunity. See

Lane v. Franks, 573 U.S. 228, 243–46 (2014). To hold Smith personally liable, the Spithalers

would have to show that his alleged actions violated their “clearly established” First Amendment

rights. Reichle v. Howards, 566 U.S. 658, 664 (2012). Yet we have said that “neither the First

Amendment nor the Fourteenth Amendment mandates a right of access to government information

or sources of information within the government’s control.” Phillips v. DeWine, 841 F.3d 405,

418 (6th Cir. 2016) (quoting Houchins v. KQED, Inc., 438 U.S. 1, 15 (1978)). So this defense

would require us to consider a question addressed by few cases: Is it clearly established that the

First Amendment protects a citizen’s public-records requests, even if it does not compel disclosure

of the underlying public records? Cf. DeMartini v. Town of Gulf Stream, 942 F.3d 1277, 1288–89

(11th Cir. 2019).

       In his official capacity, by contrast, Smith lacks this qualified-immunity cover. See Lane,

573 U.S. at 246. That is because a suit against Smith in his official capacity “is, in all respects



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other than name, to be treated as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159,

166 (1985). So the Spithalers’ official-capacity claim against Smith is no different than their claim

against Trumbull County. Id. at 167 n.14. This claim triggers a different defense. Monell v.

Department of Social Services, 436 U.S. 658 (1978), holds that § 1983 does not make municipal-

ities automatically accountable for an employee’s unconstitutional action. Id. at 690–91. Rather,

the employee’s action must result from some municipal “policy or custom.” Bible Believers v.

Wayne County, 805 F.3d 228, 260 (6th Cir. 2018) (en banc). An employee’s “single unconstitu-

tional act” may meet that test, but only if it is “taken by an authorized decisionmaker” of the

municipality. Id. This defense, then, would require us to consider a different question: Does Smith

qualify as an “authorized decisionmaker” to trigger liability for Trumbull County under Monell

even though the county commissioners have the final say on permitting decisions? Cf. Adkins v.

Bd. of Educ. of Magoffin Cty., 982 F.2d 952, 959 (6th Cir. 1993).

       Rather than confront these defenses, we think it easiest to resolve this case on the merits of

the Spithalers’ First Amendment retaliation claim—specifically, the claim’s causation element.

To create a genuine issue of material fact on causation, a plaintiff “must point to specific, noncon-

clusory allegations reasonably linking” the plaintiff’s protected activity to the adverse action. Ste-

vens v. Thetford Township, 475 F. App’x 556, 560 (6th Cir. 2012) (quoting Vereecke v. Huron

Valley Sch. Dist., 609 F.3d 392, 400 (6th Cir.2010) (quotation marks omitted). To establish a

prima facie case, the plaintiff must present enough evidence to show that the protected activity

was “a substantial or motivating factor” in the adverse action. Vereecke, 609 F.3d at 400. We

have said that a “‘motivating factor’ is essentially but-for cause—‘without which the action being

challenged simply would not have been taken.’” Leonard v. Robinson, 477 F.3d 347, 355 (6th Cir.

2007) (quoting Greene v. Barber, 310 F.3d 889, 897 (6th Cir. 2002)). That language sounds like



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the plaintiff bears the burden of showing but-for causation as part of the prima facie case. But we

have also said that, once the plaintiff shows that the protected activity was a motivating factor, the

burden shifts to the defendant to prove that the defendant would have taken the same action any-

way, even absent the protected activity. Sensabaugh v. Halliburton, 937 F.3d 621, 628 (6th Cir.

2019). That language sounds like the defendant bears the burden of showing the absence of but-

for causation. Who then bears the burden of proving but-for causation? We need not resolve this

issue now. (For the Supreme Court’s statements on the issue, see Nieves v. Bartlett, 139 S. Ct.

1715, 1722–23 (2019); Lozman v. City of Riviera Beach, 138 S. Ct. 1945, 1952 (2018); Hartman

v. Moore, 547 U.S. 250, 260 (2006); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.

274, 283–84 (1977).)

       No matter who must prove but-for causation, the Spithalers have not even presented

enough evidence to show that Mr. Spithaler’s public-records requests in any way motivated

Smith’s decisions to load-test Davis-Peck Road or to deny their permits. And that failure of proof

against Smith likewise dooms the Spithalers’ claim against Trumbull County because they rely

only on Smith’s actions to hold the county liable.

       To begin with, the Spithalers do not provide any evidence suggesting that Smith was even

involved in the decisionmaking process for their applications. As the district court noted, they

presented “scant evidence” and “conducted no depositions.” Spithaler, 2019 WL 2076095, at *2.

They thus chose not to question Smith about his role. They also conceded that they do “not know

what, if any, personal involvement [Smith] had in connection with [their] applications for special

hauling permits.” They corresponded with others in the county engineer’s office when discussing

their applications. For his part, Smith added that other staff members were the “point people” for

the permitting program.



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No. 19-3462, Spithaler, et al. v. Smith, et al.


       In addition, the Spithalers identify no evidence suggesting that anyone in the office sought

to retaliate against Mr. Spithaler for his records requests. A staff member instead recommended

load-posting Davis-Peck Road based on his knowledge of the road’s poor condition. There was

nothing unusual about that type of recommendation. Smith says that his office typically gives “at

least some consideration to whether the road should be load-posted” whenever a party applies for

a hauling permit. He also identifies load-testing that occurred on a different road as a result of a

different application. Not only that, the Spithalers conceded that the private engineering firm’s

testing comported with accepted engineering standards. So objective evidence vindicates the staff

member’s belief that Davis-Peck Road should, in fact, be load-posted.

       Unlike in other cases, moreover, the Spithalers do not identify any similarly situated parties

who were able to obtain an annual-supplier permit for a road that needed to be load-posted. Cf.

Arnett v. Myers, 281 F.3d 552, 561–62 (6th Cir. 2002). For that matter, they do not identify any

other permit applicants at all. So Smith’s statement that the office routinely considers whether to

load-post a road whenever it receives a permit application stands unrebutted.

       The Spithalers make two arguments in response, neither of which creates a jury question

on causation. They point to the “temporal proximity” between when they made their public-rec-

ords requests (March 9) and when the office decided to load-test Davis-Peck Road (by March 22).

But “[s]ubstantial case law from this circuit cautions about the permissibility of drawing an infer-

ence of causation from temporal proximity alone.” Vereecke, 609 F.3d at 400; Sensabaugh, 937

F.3d at 630. And the close timing between the records requests and the load-testing decision is

explained by an intervening event: Spithaler applied for a permit.

       Unable to rely on temporal proximity alone, the Spithalers cite a letter that an attorney in

the county engineer’s office wrote to the executive director of the Ohio Forestry Association. In



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the letter, the Spithalers claim, the attorney states that Smith was displeased with Mr. Spithaler’s

public-records requests. We agree with the district court that the Spithalers take this letter “out of

context.” Spithaler, 2019 WL 2076095, at *5. The attorney did not indicate that the records re-

quests were troubling; he indicated that Mr. Spithaler’s “harassment” of Smith was troubling. Id.

The letter, for example, cited an incident from 2017 in which Smith called the police on Spithaler

because of a “verbal confrontation.”

       All told, the temporal proximity and this letter, “taken together,” do not permit a reasonable

jury to conclude that Mr. Spithaler’s records requests in any way motivated the decisions to load-

test Davis-Peck Road or to deny the Spithalers’ permit applications. Vereecke, 609 F.3d at 403.

                                                  * * *

       Apart from their First Amendment claim, the Spithalers challenge the district court’s order

imposing $1,791.36 in sanctions for their failure to appear at their scheduled deposition times. But

the order imposing these sanctions came after the Spithalers had filed their notice of appeal from

the final judgment. We lack appellate jurisdiction to review that post-judgment order because the

Spithalers did not file a separate notice of appeal from it. See EEOC v. Wal-Mart Stores, Inc.,

187 F.3d 1241, 1249–50 (10th Cir. 1999); Culinary & Serv. Emps. Union, Local 555 v. Hawaii

Emp. Benefit Admin., 688 F.2d 1228, 1232 (9th Cir. 1982); Shaw v. Merritt-Chapman & Scott

Corp., 554 F.2d 786, 789 (6th Cir. 1977); cf. Armisted v. State Farm Mut. Auto. Ins. Co., 675 F.3d

989, 994 (6th Cir. 2012); 15B Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal

Practice and Procedure § 3915.6, at 342–43 (2d ed. 1992).

       We affirm.




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