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Scott v. Tempelmeyer

United States Court of Appeals, Eighth Circuit

August 16, 2017

Ray Scott, Plaintiff- Appellee,
v.
Tobias J. Tempelmeyer, City Attorney, Defendant-Appellant.

          Submitted: November 16, 2016

         Appeal from United States District Court for the District of Nebraska - Lincoln

          Before COLLOTON, BEAM, and GRUENDER, Circuit Judges.

          COLLOTON, Circuit Judge.

         Ray Scott sued the City of Beatrice, Nebraska, Mayor Dennis Schuster, and City Attorney Tobias Tempelmeyer, claiming violations of his First and Fourth Amendment rights. The district court granted summary judgment for the City and Schuster and partial summary judgment for Tempelmeyer on Scott's Fourth Amendment claim. The court denied Tempelmeyer qualified immunity on Scott's First Amendment claim alleging that Tempelmeyer retaliated against Scott for exercising his right to free speech. Tempelmeyer appeals the denial of qualified immunity. We conclude that the First Amendment right asserted by Scott-a right to be free from retaliatory regulatory enforcement that is otherwise supported by probable cause-was not clearly established. We therefore reverse the district court's order denying in part Tempelmeyer's motion for summary judgment based on qualified immunity.

         I.

         Beginning in 2005, Scott was the lessor and operator of the Villa Motel, a two-building motel located in Beatrice, Nebraska, and owned by Wayne Schulz. During his tenure, Scott engaged in a long-running dispute with the City and Tempelmeyer regarding the Motel's failure to pay lodging taxes. In December 2009, Tempelmeyer warned Scott and Schulz by letter that if they did not remit the unpaid lodging taxes by January 8, 2010, the City would take legal action to collect the taxes or prosecute them for zoning violations.

         In November 2010, Tempelmeyer received photographs of the Motel's interior and basement from the lessee of an adjacent commercial building. After reviewing the photographs, Tempelmeyer directed Dennis Mitchell, the chief building inspector for the City, to inspect the property for safety issues with Sean Lindgren, the deputy state fire marshal. Mitchell obtained a search warrant from a local judge and inspected the Motel with Lindgren and another city employee.

         Lindgren noted several fire code violations and safety hazards; he concluded that the Motel was unfit for occupancy. Lindgren ordered that the Motel correct the deficiencies, or submit and secure approval of a plan of correction, before the Motel could be reoccupied. After the inspection, city building inspector Mitchell sent Scott and Schulz a letter at Tempelmeyer's direction, identifying the "fire and life safety issues" found during the inspection.

         Meanwhile, Mitchell told Tempelmeyer that he did not think the issues were life-threatening or that the Motel should be condemned-i.e., adjudged unfit for occupancy. According to Mitchell, he had never been ordered to condemn a property after he concluded that it did not present life-threatening issues. Tempelmeyer nonetheless told Mitchell to condemn the Motel. The City Code of Beatrice incorporates the International Property Maintenance Code, which provides that an official may give notice of condemnation if he "determines" or "has grounds to believe" that a violation has occurred. Int'l Prop. Maint. Code § 107.1 (Int'l Code Council 2003).

         Scott sued the City of Beatrice, Mayor Schuster, and City Attorney Tempelmeyer under 42 U.S.C. § 1983, asserting that the defendants violated his rights under the First and Fourth Amendments, as incorporated through the Fourteenth Amendment. He claimed that the inspection and condemnation were conducted in retaliation for his disputing whether a certain tax was applicable to his business, in violation of the First Amendment. He further alleged the inspection was conducted without a warrant or his permission, contrary to the Fourth Amendment.

         The district court granted summary judgment for the City and Mayor Schuster. The court also granted summary judgment for Tempelmeyer on the Fourth Amendment claim, but denied his motion on the First Amendment retaliation claim. The court determined that there was evidence that Tempelmeyer retaliated against Scott for exercising his First Amendment rights by ordering an inspection and condemnation of the Motel. Tempelmeyer appeals the district court's denial of qualified immunity.

          We have jurisdiction to review an interlocutory appeal of the denial of qualified immunity under the collateral order doctrine. Mitchell v. Forsyth, 472 U.S. 511, 528-30 (1985). Qualified immunity shields a government official from suit when his conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Tempelmeyer is entitled to qualified immunity unless the right asserted by Scott was established "beyond debate." Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). Immunity protects "all but the plainly incompetent or those who knowingly violate the law." White v. Pauly, 137 S.Ct. 548, ...


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