R.S.W.W., INC ., d/b/a Goose Island Brewery v. City of Keego Harbor

*The Honorable Karen K. Caldwell, United States District Judge for the Eastern District of Kentucky, sitting
by designation.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 05a0065p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
R.S.W.W., I NC ., d/b/a Goose Island Brewery, et al.,
Plaintiffs-Appellants,
v.
CITY OF KEEGO HARBOR , et al.,
Defendants-Appellees.
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N
No. 01-2695
Appeal from the United States District Court
for the Eastern District of Michigan at Flint.
No. 98-40377—Paul V. Gadola, District Judge.
Argued: July 29, 2003
Decided and Filed: February 10, 2005
Before: DAUGHTREY and MOORE, Circuit Judges; CALDWELL, District Judge.*
_________________
COUNSEL
ARGUED: Robert D. Horvath, Troy, Michigan, for Appellants. Julie McCann O’Connor,
O’CONNOR, DeGRAZIA & TAMM, Bloomfield Hills, Michigan, for Appellees. ON BRIEF:
Robert D. Horvath, Troy, Michigan, for Appellants. Julie McCann O’Connor, O’CONNOR,
DeGRAZIA & TAMM, Bloomfield Hills, Michigan, for Appellees.
_________________
OPINION
_________________
KAREN K. CALDWELL, District Judge. Plaintiffs-Appellants R.S.W.W., Inc., d/b/a Goose
Island Brewery and its sole shareholder Richard Skinner (together “Goose Island”) appeal the
district court’s dismissal of their constitutional claims asserted under 42 U.S.C. § 1983 against
Defendants-Appellants City of Keego Harbor (“Keego Harbor”) and various city officials (together
the “Defendants”) and police officers. Goose Island charges that the Defendants unconstitutionally
attempted to force it to close its microbrewery earlier than required by Michigan law. The district
court dismissed all claims. We AFFIRM in part, REVERSE in part and REMAND to the district
court for proceedings not inconsistent with this Opinion.
1

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No. 01-2695 R.S.W.W., et al. v. City of Keego Harbor, et al. Page 2
1Section 1983 provides for legal and equitable remedies against any person who, under color of state law,
deprives any person of any "rights, privileges, or immunities secured by the Constitution and laws . . . . " 42 U.S.C.
§ 1983.
2In its initial complaint, Goose Island also named the MLCC and its chairperson as defendants but later
dismissed them.
3In all pleadings before this Court, the corporate plaintiff is identified as R.S.W.W., Inc. The plaintiff is
incorrectly designed at R.S.S.W., Inc. in the published opinions of the district court.
I. FACTS AND PROCEDURE.
A. Goose Island’s Complaint and the Motion to Dismiss.
According to Goose Island’s complaint (the “Complaint”), at the time this action began, it
owned and operated Goose Island Brewery (the “Brewery”), an establishment that sold food and
alcoholic beverages in Keego Harbor, Michigan. The Complaint states that Keego Harbor is a small
community of approximately 3,000 residents situated close to Cass Lake, Sylvan Lake and the
Clinton River. When it opened the Brewery in 1995, Goose Island held various permits from the
Michigan Liquor Control Commission (“MLCC”) including a Class “C” liquor license and a
brewpub license which permitted it to serve alcoholic beverages. The licenses granted to Goose
Island by the MLCC were in effect at the time this action was filed.
Michigan laws and regulations permit liquor licensees to serve food and alcohol until 2:00
a.m. Goose Island asserts that the MLCC has complete control over alcohol sales in the state of
Michigan and that local communities cannot require MLCC-licensed establishments to close earlier
than 2:00 a.m. Goose Island charges, however, that, beginning in 1997, Keego Harbor and certain
city officials set out on an unlawful harassment campaign to force Goose Island to close the Brewery
at 11:00 p.m.
This unlawful harassment campaign allegedly consisted of the city withholding certain
administrative approvals requested by Goose Island and inordinate police surveillance directed at
Goose Island, its patrons and its employees. Specifically, Goose Island charges that the city refused
to grant it a requested zoning variance, approval of a site plan amendment and permission to change
the name on its sign. Goose Island also charges that the city police conducted daily “drive-
throughs” of Goose Island’s parking lot; stopped the vehicles of Goose Island’s customers and
employees and, in some cases, issued them tickets; parked their police cars near Goose Island where
patrons and customers would see them; and lodged a complaint against Goose Island with the
MLCC. According to the Complaint, the police scrutiny caused a significant drop in its monthly
sales.
In the Complaint, Goose Island asserted a claim under 42 U.S.C. § 19831 against the city of
Keego Harbor, its City Manager at the time of the events in question (Michael Steklac), its Chief
of Police at the time of the events in question (Jack Beach), and various members of its city council
during the events in question (Ralph Behler, Robert Burns, Arthur Nance and David Hofmann).2
The individuals were sued in both their individual and official capacities.
The district court discerned various constitutional claims in the Complaint. Relevant to this
appeal are Goose Island's claims that the Defendants violated its rights to due process by way of
“unconstitutional conditions” and that the city’s ordinance regulating signs (the “Sign Ordinance”)
violates the First Amendment. R.S.S.W., Inc. v. City of Keego Harbor, 18 F.Supp.2d 738, 744 (E.D.
Mich. 1998), recon. denied, 56 F.Supp.2d 798 (E.D. Mich. 1999)3.

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No. 01-2695 R.S.W.W., et al. v. City of Keego Harbor, et al. Page 3
4The ruling on the Motion to Dismiss was entered on September 16, 1998 by District Judge Horace W. Gilmore.
On November 2, 1998, the case was transferred to District Judge Paul V. Gadola.
5A First Amended Complaint was filed at the request of the district court to clarify the issues remaining after
Goose Island’s dismissal of the MLCC and its chairperson. R.S.S.W., Inc. v. City of Keego Harbor, 18 F.Supp.2d at 740
n.1 (E.D. Mich. 1998).
6In its Summary Judgment, the district court also dismissed Goose Island’s claim that the Defendants had
violated its rights under the Due Process Clause by depriving it of a property right in its license and a liberty right in
engaging in its chosen profession. On appeal, Goose Island does not challenge the district court’s dismissal of this claim
and this Court will not, therefore, address the propriety of that dismissal.
On the Defendants’ Motion to Dismiss the Complaint, the district court dismissed the
challenge to the Sign Ordinance. The district court also dismissed the claims against the individual
city council members determining that they were entitled to absolute legislative immunity.4
B. The Amended Complaint and Motion for Summary Judgment.
In May, 2000, the district court granted Goose Island’s motion to amend the Complaint to
add two Keego Harbor police officers as defendants. It denied Goose Island permission to add as
defendants the city planning consultant and his company, Phillip McKenna and McKenna
Associates, Inc. (together, “McKenna”). Goose Island then filed a Second Amended Complaint5
adding the two police officers, Gregory Palmer (“Palmer”) and Daniel Reynolds (“Reynolds”), and
charging that Palmer and Reynolds carried out the inordinate police scrutiny of Goose Island, its
patrons and employees (the “Second Amended Complaint”).
The amended complaint also stated that Goose Island had been forced to close the Brewery
soon after commencing this action because the Defendants’ actions had made it “unfeasible” for it
to continue operations. The amended complaint further charged that Goose Island had been unable
to sell its property because the Defendants’ actions had “significantly, and negatively, impacted the
marketability of [Goose Island’s] property/licenses, and have impaired fair market value.”
The officers then moved for summary judgment of the claims made in the Second Amended
Complaint. The district court determined that, with the amended complaint, Goose Island was
attempting to assert equal protection and due process claims against the officers and dismissed both
claims.6
C. Dismissal of Unconstitutional Conditions Claim for Lack of Jurisdiction.
By October, 2001, the sole remaining claim in the action was Goose Island’s claim that
Keego Harbor and its city manager and police chief had violated the doctrine of “unconstitutional
conditions.” At that time, the Defendants moved to dismiss the claim for lack of subject matter
jurisdiction. By Order dated November 6, 2001, the district court granted the motion to dismiss.
Goose Island then filed a notice of appeal.
D. Issues on Appeal.
On appeal, Goose Island charges that the district court erred 1) in ruling that it did not have
subject matter jurisdiction over Goose Island’s unconstitutional conditions claim; 2) in ruling that
Goose Island did not have standing to assert a challenge to the Sign Ordinance; 3) in ruling that the
city council members were entitled to legislative immunity; 4) in dismissing the police officers; and

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No. 01-2695 R.S.W.W., et al. v. City of Keego Harbor, et al. Page 4
7Goose Island also asserts that the district court erred in ruling that Goose Island did not have standing to assert
an equal protection claim against the City and the city officials based on unequal enforcement of traffic laws. The district
court actually dismissed this claim on two grounds. As recognized by Goose Island, the district court held that Goose
Island had no standing to assert the claim because the alleged unequal enforcement actions were directed at Goose
Island’s customers and employees and not at Goose Island itself. R.S.S.W., Inc. v. City of Keego Harbor, 18 F.Supp.2d
at 747. The district court also held, however, that Goose Island’s allegations of inordinate police scrutiny could not form
the basis for an equal protection claim because Goose Island had only alleged increased traffic stops and police presence
but not actual enforcement of laws. Id. On appeal, Goose Island does not challenge this second grounds for dismissal
of its equal protection claim against the City and city officials. Goose Island’s failure to do so moots any need for this
Court to address the alternative grounds for dismissal of the claim. Thus, the Court declines to address whether the
district court properly determined that Goose Island lacked standing to assert an equal protection claim against the City
and city officials based on unequal enforcement of traffic laws.
5) in denying Goose Island’s motion to amend the pleadings to add the city planning consultant and
his company.7
II. ANALYSIS.
A. Standards of Review.
This court reviews de novo a district court’s grant of a motion to dismiss. Montgomery v.
Huntington Bank, 346 F.3d 693, 697-98 (citation omitted). In reviewing a motion to dismiss, we
must construe the complaint in the light most favorable to the plaintiff and find dismissal proper
only if it appears beyond doubt that the plaintiff cannot prove any set of facts in support of his
claims that would entitle him to any relief. Id. (citation omitted).
This court also reviews de novo the district court’s grant of summary judgment using the
same Rule 56(c) standard as the district court. Williams v. Mehra, 186 F.3d 685, 689 (6th Cir.
1999). In accordance with Federal Rule of Civil Procedure 56(c), summary judgment is proper “if
the pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). “In deciding a motion for
summary judgment, we view the factual evidence and draw all reasonable inferences in favor of the
non-moving party.” Williams, 186 F.3d at 689 (citation omitted). The moving party has the burden
of proving that no genuine issue as to any material fact exists and that it is entitled to a judgment as
a matter of law. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477-78 (6th Cir. 1989). 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).
A district court’s denial of a motion to amend a complaint is reviewed for an abuse of
discretion. Begala v. PNC Bank, Ohio, Nat’l Ass’n, 214 F.3d 776, 783 (6th Cir. 2000). “Abuse of
discretion is defined as a definite and firm conviction that the trial court committed a clear error of
judgment.” Bowling v. Pfizer, Inc., 102 F.3d 777, 780 (6th Cir. 1996) (quoting Logan v. Dayton
Hudson Corp., 865 F.2d 789, 790 (6th Cir. 1989).
B. Dismissal of Unconstitutional Conditions Claim for Lack of Subject Matter
Jurisdiction.
Pursuant to 28 U.S.C. § 1331, district courts have jurisdiction over all civil actions arising
under federal laws or the Constitution. The party attempting to show that federal jurisdiction exists
bears the burden of demonstrating jurisdiction “by competent proof.” Thomson v. Gaskill, 315 U.S.
442, 446 (1942).

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No. 01-2695 R.S.W.W., et al. v. City of Keego Harbor, et al. Page 5
With its unconstitutional conditions claim, Goose Island asserts that the Defendants withheld
certain administrative approvals from it unless it agreed to close at 11:00 p.m. In dismissing the
claim, the district court determined that, “[f]or the reasons set forth in Defendant’s briefs,” Goose
Island had not adequately identified the federal right which it alleged that the Defendants had
deprived it of in violation of 42 U.S.C. § 1983. Examining the Defendants’ brief in support of their
Motion to Dismiss, it appears that the district court dismissed the unconstitutional conditions claim
because it was premised only upon a state law governing alcohol sales but did not involve any
federal right as required for the court’s jurisdiction.
Under the unconstitutional conditions doctrine, “a state actor cannot constitutionally
condition the receipt of a benefit, such as a liquor license or an entertainment permit, on an
agreement to refrain from exercising one’s constitutional rights . . . . ” G & V Lounge, Inc. v. Mich.
Liquor Control Comm’n, 23 F.3d 1071, 1077 (6th Cir. 1994).
For at least a quarter-century, this Court has made clear that even though a person
has no “right” to a valuable governmental benefit and even though the government
may deny him the benefit for any number of reasons, there are some reasons upon
which the government may not rely. It may not deny a benefit to a person on a basis
that infringes his constitutionally protected interests . . . .
Perry v. Sindermann, 408 U.S. 593, 597 (1972); See also Amelkin v. McClure, 330 F.3d 822, 827-28
(6th Cir.)(stating that “unconstitutional conditions” doctrine holds that government may not grant a
benefit on condition that the beneficiary surrender a constitutional right, even if the government may
withhold the benefit altogether), cert. denied, 124 S.Ct. 827 (2003).
Clearly, a federal court has jurisdiction over a properly asserted unconstitutional conditions
claim because it involves the infringement of a constitutional right. In determining whether the
district court had subject matter jurisdiction over Goose Island’s unconstitutional conditions claim,
the Court must first examine the validity of the constitutional right asserted. Goose Island appears
to assert that its right to due process was infringed because the city attempted to force it to relinquish
that right by withholding certain government benefits.
As this Court has previously recognized, while the unconstitutional conditions doctrine has
been most consistently applied to protect First Amendment rights, it has also been applied by the
Supreme Court to other constitutional provisions, including the Takings Clause. Woodard v. Ohio
Adult Parole Authority, 107 F.3d 1178, 1190 (6th Cir. 1997)(citations omitted), rev’d on other
grounds, 523 U.S. 272 (1998). The doctrine should equally apply to prohibit the government from
conditioning benefits on a citizen’s agreement to surrender due process rights. See, e.g., Vance v.
Barrett, 345 F.3d 1083, 1089 (9th Cir. 2003)(applying the unconstitutional conditions doctrine to
protect rights to due process).
In order to assert a valid due process claim, however, a plaintiff must establish that the
interest asserted is a liberty or property interest protected under the Fourteenth Amendment. Wojcik
v. City of Romulus, 257 F.3d 600, 609 (6th Cir. 2001). Goose Island argues that it had a protected
property right in its liquor license which included the right to certain hours of operation. In Wojcik,
this Court recognized that “Michigan courts have held that the holder of a liquor license has a
constitutionally protected interest and is therefore entitled to proper proceedings prior to making
decisions regarding renewal or revocation.” Id. at 609-10 (citing Bisco’s, Inc. v. Michigan Liquor
Control of Comm’n, 238 N.W.2d 166, 167 (Mich. 1976)). The issue before this Court, however,
is whether Goose Island had a property interest in certain hours of operation.
In Board of Regents v. Roth, 408 U.S. 564 (1972), the Supreme Court explained that “[t]o
have a property interest in a benefit, a person clearly must have more than an abstract need or desire

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No. 01-2695 R.S.W.W., et al. v. City of Keego Harbor, et al. Page 6
8The state regulation in effect at the time of the Noey decision was substantially similar to Rule 436.1403,
providing that, “no licensee. . . shall sell or permit the sale of any alcoholic liquor for consumption on the premises
between the hours of 2:00 o’clock and 7:00 o’clock A.M. Eastern Standard Time. . . . ” Noey, 261 N.W. at 89.
for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate
claim of entitlement to it.” Id. at 577. Constitutionally protected property interests are not created
by the Constitution itself but rather 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.” Id.
“[A] party cannot possess a property interest in the receipt of a benefit when the state’s
decision to award or withhold the benefit is wholly discretionary.” Med Corp., Inc. v. City of Lima,
296 F.3d 404, 409 (6th Cir. 2002). Thus, in order to establish a constitutionally protected property
interest in remaining open until 2:00 a.m., Goose Island “must point to some policy, law, or mutually
explicit understanding that both confers the benefits and limits the discretion of the City to rescind
the benefit.” Id. at 410.
In Med Corp., MedCorp., an ambulance company licensed to provide ambulance services
in Lima, Ohio, sued the city when the city suspended the dispatch of 911 calls to the company for
one week. As is the case with Goose Island’s liquor license, there was no question that MedCorp.
had a property interest in its license. Id. at 411. MedCorp. charged, however, that it also had a
property interest in receiving 911 dispatches. Id. at 409. The district court determined that Med
Corp. did not have a property interest in receiving 911 dispatches from the city because there was
no enforceable policy or procedure restraining the city’s discretion to suspend the dispatches. Id.
at 408. This Court agreed finding that it was undisputed that there was no written policy or
legislative enactment that established a procedure for maintaining the 911 dispatch list or that
limited the city’s discretion to remove ambulance companies from the list. Id. at 410.
In this case, however, Rule 436.1403 of the Michigan Administrative Code provides that “an
on-premises licensee shall not sell, give away, or furnish alcoholic liquor between the hours of 2
a.m. and 7 a.m. on any day . . . . ” Mich. Admin. Code r. 436.1403(1). On its face, the rule does not
grant licensees a right to remain open until 2:00 a.m. but merely provides that licensees cannot sell
liquor after 2:00 a.m. Nevertheless, in Noey v. City of Saginaw, 261 N.W. 88 (Mich. 1935), the
Supreme Court of Michigan determined that a Michigan city ordinance cannot fix closing hours to
a period shorter than that specified in the state rule.8 Thus, in this matter, in contrast to Med. Corp.,
there is a written regulation that both confers the benefit at issue (serving alcohol until 2:00 a.m.)
and prohibits city officials from rescinding the benefit.
“The legal definition of ‘property’ most often refers not to a particular physical object, but
rather to the legal bundle of rights recognized in that object.” Brotherton v. Cleveland, 923 F.2d
477, 481 (6th Cir. 1991). See also U.S. v. Frost, 125 F.3d 346, 367 (6th Cir. 1997). Included in this
bundle of rights are the rights to “possess, use and dispose” of a particular article. Brotherton, 923
F.2d at 481. Under Michigan law, a liquor license is property which includes the right to serve
alcohol until 2:00 a.m. Accordingly, just as a licensee’s license could not be revoked without due
process, neither can a licensee’s right to serve alcohol until 2:00 a.m. be revoked without due
process. Cf. Sea Girt Restaurant & Tavern Owners Ass’n v. Borough of Sea Girt, 625 F.Supp. 1482,
1487-89 (D. N.J.) (holding that a New Jersey liquor license is a property interest for purposes of due
process analysis and that the statutory process by which municipalities set the hours during which
alcoholic beverages may be sold must afford procedural due process to licensees), aff’d, 802 F.3d
448 (3rd Cir. 1986).
If Keego Harbor had forced Goose Island to close at 11:00 p.m. without any prior procedure,
that action clearly would have violated Goose Island’s constitutionally protected property rights.

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No. 01-2695 R.S.W.W., et al. v. City of Keego Harbor, et al. Page 7
Pursuant to the “unconstitutional conditions” doctrine, Keego Harbor cannot indirectly force Goose
Island to close at 11:00 p.m. by withholding government benefits. The fact that Goose Island
apparently never closed at 11:00 p.m. is irrelevant. The due process violation at issue is the city’s
alleged requirement that Goose Island choose between its due process rights in certain hours of
operation and the desired city approvals. See Vance, 345 F.3d at 1088 n.5.
Goose Island’s allegation that the city withheld approval of its request for a site plan
amendment and a zoning variance and its request to change the name on its sign until Goose Island
would agree to shorten its operating hours at least raises a constitutional question over which the
district court had jurisdiction. Accordingly, the district court erred in dismissing Goose Island’s
unconstitutional conditions claim on grounds that it lacked subject matter jurisdiction. Whether
Goose Island can produce any evidence to support the claim or should ultimately prevail are separate
issues that are not before this Court since the district court did not address the merits of this claim.
C. Dismissal of Challenge to Sign Ordinance.
Goose Island argues on appeal that the district court incorrectly dismissed its facial challenge
to the Sign Ordinance which makes it unlawful “for any person to erect, re-erect, alter or relocate
any sign un less [sic] a permit shall have been first obtained from the Building Inspector. . . .” With
its Complaint, Goose Island charged that the city had refused to consider its request to change the
name on its business sign and alleged that the Sign Ordinance violates the First Amendment “since
it is not confined by narrow, definite and objective guidelines.” The district court dismissed Goose
Island’s facial challenge to the ordinance finding that Goose Island had no standing to assert the
claim because the city had not denied Goose Island’s request to change its sign but only postponed
consideration of it pending the resolution of the zoning disputes. R.S.S.W., Inc., 18 F.Supp.2d at
748.
“[W]hen a licensing statute allegedly vests unbridled discretion in a government official over
whether to permit or deny expressive activity, one who is subject to the law may challenge it facially
without the necessity of first applying for, and being denied, a license.” City of Lakewood v. Plain
Dealer Publishing Co., 486 U.S. 750, 755-56 (1988). The “root of this long line of precedent is the
time-tested knowledge that in the area of free expression a licensing statute placing unbridled
discretion in the hands of a government official or agency constitutes a prior restraint and may result
in censorship.” Id. at 757.
Plaintiffs cannot assert third party standing in every First Amendment facial challenge to an
ordinance– only in vagueness and overbreadth challenges. Brandywine, Inv. v. City of Richmond,
359 F.3d 830, 835 (6th Cir. 2004). It is well established that a plaintiff has standing to challenge a
statute on the ground that it delegates overly broad licensing discretion to an administrative office,
whether or not he has applied for a license. Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 889
(6th Cir. 2002)(quoting Freedman v. Maryland, 380 U.S. 51, 56 (1986)).
Goose Island challenges the Sign Ordinance on the basis that its grants overly broad
licensing discretion that permitted the city to withhold approval of its request to change its name on
its business sign. For purposes of determining Goose Island’s standing on this claim, it is irrelevant
that the city did not actually deny Goose Island’s request to change its sign but only delayed
consideration of the request. In fact, a form of overly broad licensing discretion subjecting an
ordinance to a third-party facial challenge is the failure to place brief, specific time limits on the
decision-making process. Id. The district court erred in ruling that Goose Island has no standing to
challenge the Sign Ordinance on First Amendment grounds and this matter will be remanded to the
district court for a ruling on the merits of that claim.

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No. 01-2695 R.S.W.W., et al. v. City of Keego Harbor, et al. Page 8
9In addition to its challenge to the Sign Ordinance, before the district court, Goose Island challenged Keego
Harbor ordinances governing zoning and the revocation of liquor licenses. After its ruling on the Motion to Dismiss,
the district court denied Goose Island’s motion that the liquor and zoning ordinances be declared unconstitutional. That
ruling is not challenged on appeal.
D. Dismissal of City Council Members.
In its ruling on the Motion to Dismiss, the district court dismissed the individual city council
members – Behler, Burns, Nance, and Hofmann – from the action finding that they were entitled to
absolute legislative immunity because their alleged wrongful actions were legislative acts. Id. at 749.
Local legislators are entitled to absolute immunity “when they act in their legislative capacities.”
Shoultes v. Laidlaw, 886 F.2d 114, 117 (6th Cir. 1989). “Absolute legislative immunity attaches to
all actions taken in the sphere of legitimate legislative activity.” Bogan v. Scott-Harris, 523 U.S. 44,
54 (1998)(quotations and citation omitted).
The district court determined that Goose Island had only alleged that the city council
members participated in the passage of various ordinances9 and that Goose Island had failed to make
any specific allegations regarding non-legislative acts by any single council member. R.S.S.W., Inc.,
18 F.Supp. 2d at 749. On appeal, Goose Island argues that the district court improperly granted the
individual city council members legislative immunity because its Complaint against them was based,
not on legislative activity, but on the city’s “policy” of harassing Goose Island into closing three
hours earlier than required under state law. Goose Island alleges generally that the city council
created the “close at 11 p.m.” demand and then pressured the City Manager and Police Chief to force
Goose Island to comply.
The only claims that remain in this action are the unconstitutional conditions claim and the
Sign Ordinance claims. The passage of the Sign Ordinance is a purely legislative act for which all
council members are immune from suit. Shoultes, 886 F.2d at 117-18 (mayor and council were
clearly acting in their legislative capacities in passing zoning ordinance and, thus, absolutely
immune from suit where ordinance was subsequently held invalid). The actions that are relevant to
the unconstitutional conditions claim are the city’s alleged refusals to grant Goose Island the site
plan amendment unless it agreed to close at 11:00 p.m.; the city’s alleged refusal to grant Goose
Island the zoning variance unless it agreed to close at 11:00 p.m.; and the city’s alleged refusal to
grant Goose Island permission to change its business sign unless it agreed to close at 11:00 p.m.
On appeal, Goose Island argues that it made specific allegations in the district court
regarding non-legislative actions undertaken by Defendant Hofmann. Goose Island points to
minutes of the city council and Planning Commission’s meetings and the deposition transcripts of
Hofmann’s neighbor and of police chief Jack Beach. These documents certainly make clear that
Hofmann objected to Goose Island’s operations. Nevertheless, these documents do not evidence any
activity relevant to Goose Island’s unconstitutional conditions claim, i.e., that Hofmann caused the
relevant government officials to fail to approve Goose Island’s administrative requests unless it
agreed to close at 11:00 p.m.
Goose Island has alleged generally that the city council pressured other city officials to force
Goose Island to close at 11:00 p.m. Nevertheless, in its pleadings before the district court, Goose
Island alleged no specific activity by any individual council member with regard to its
unconstitutional conditions claim. The district court correctly concluded that the only actions that
Goose Island alleged that the individual city council members undertook relevant to its complaint
were legislative actions. Accordingly, the district court correctly concluded that the individual city
council members were entitled to legislative immunity. Therefore, we affirm the district court’s
dismissal of the individual city council members as parties to this action.

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No. 01-2695 R.S.W.W., et al. v. City of Keego Harbor, et al. Page 9
10Nor does the complaint state that Goose Island is asserting any claims against the officers in their individual
capacities. Nevertheless, because the officers asserted qualified immunity as a defense to the equal protection and due
process claims, it appears that the officers understood that Goose Island was asserting those claims against the officers
in their individual capacities.
11The district court dismissed Goose Island’s retaliation claim against the city in its Summary Judgment and
Goose Island does not challenge that dismissal on appeal.
E. Dismissal of Police Officers.
Goose Island added police officers Palmer and Reynolds as defendants to this action in its
Second Amended Complaint. The amended complaint asserts generally that Palmer and Reynolds
“carried out their police patrol activities in this improper fashion, deciding to focus law enforcement
activities against plaintiffs because Keego Harbor’s city council wanted plaintiffs to close at 11
p.m.” The amended complaint asserts that the officers stopped and, in some cases, ticketed patrons
and employees; lodged a complaint with the MLCC against Goose Island; and entered the business
after closing and demanded that employees depart.
In ruling on the officers’ Motion for Summary Judgment, the district court determined that,
with the Second Amended Complaint, Goose Island was asserting equal protection and due process
claims against the officers and dismissed both claims. On appeal, Goose Island argues that the
district court should have analyzed its claim against the officers as a retaliation claim and not as a
vindictive enforcement claim.
With the various motions made by the Defendants below, the district court was asked to
analyze the claims made in the Complaint and the Second Amended Complaint. From the pleadings,
it is not clear which claims Goose Island asserts against any particular defendant, much less the
individual defendants. Where the pleadings do mention actual causes of action, they are mentioned
only in connection with Keego Harbor or, more generally, Defendants.
As to Reynolds and Palmer, the Second Amended Complaint does not assert any causes of
action against them specifically.10 The complaint asserts that the “police actions” generally violated
“equal protection of the laws” and Goose Island’s rights to “procedural due process.” The complaint
mentions a retaliation claim but appears to assert it only against the city,11 not against Reynolds and
Palmer in their individual capacities. The complaint states:
And, to the degree Keego Harbor’s police and administrative actions are in
retaliation for Plaintiff’s refusal to close at 11:00 p.m. and for Plaintiff’s concomitant
recourse to their administrative and/or judicial remedies, Keego Harbor’s actions
violate the Fourteenth and First Amendments since they have taken place because
Plaintiffs have chosen to defend their legal rights by pursuing their available
remedies.
Second Amended Complaint, ¶ 12 (emphasis added).
In its response to the officers’ Motion for Summary Judgment filed in the district court,
Goose Island does not mention a retaliation claim but discusses only an equal protection claim
against the officers in their individual capacities.
Before this Court, Goose Island appears to recognize that it asserted only an equal protection
claim against the officers but argues that the district court should have analyzed that claim as a
retaliation claim. Goose Island’s retaliation claim, however, does not implicate the Equal Protection
Clause. A retaliation claim is a claim that “government officials retaliated against the plaintiffs for

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No. 01-2695 R.S.W.W., et al. v. City of Keego Harbor, et al. Page 10
exercising their constitutional rights.” Thaddeus-X v. Blatter, 175 F.3d 378, 386 (6th Cir. 1999).
The essence of the claim is that the plaintiff engaged in conduct protected by the Constitution or by
statute, that the defendant took adverse action against the plaintiff, and that the adverse action was
taken because of the protected conduct. Id. at 386-87.
To the extent that Goose Island alleges that government officials retaliated against it for
accessing the courts, that claim arises under the First Amendment. Thaddeus-X, 175 F.3d at 391;
Hoeber on Behalf of NLRB v. Local 30, 939 F.2d 118, 126 (3rd Cir. 1991) (“The filing of a lawsuit
carries significant constitutional protections, implicating the First Amendment right to petition the
government for redress of grievances, and the right of access to courts.”) Goose Island’s claim that
government officials retaliated against it for exercising an alleged liberty or property right to stay
open until 2:00 a.m. implicates, as Goose Island itself argues, the Due Process Clause. Goose
Island’s retaliation claim does not, however, arise under the Equal Protection Clause. See, e.g.,
Watkins v. Bowden, 105 F.3d 1344, 1354 (11th Cir. 1997) (“A pure or generic retaliation claim,
however, simply does not implicate the Equal Protection Clause.”); Grossbaum v. Indianapolis-
Marion County Bldg. Auth., 100 F.3d 1287, 1296 n.8 (7th Cir. 1996)(Equal Protection Clause “does
not establish a general right to be free from retaliation”). Thus, the district court did not err by
failing to analyze Goose Island’s equal protection claim against the officers as a retaliation claim.
Goose Island never properly asserted a retaliation claim against the officers in their
individual capacities before the district court and, therefore, that claim will not be addressed on
appeal. “This Court will not decide issues or claims not litigated before the district court.” White
v. Anchor Motor Freight, Inc., 899 F.2d 555, 559 (6th Cir. 1990). Goose Island also argues that the
district court incorrectly determined that the police officers were entitled to qualified immunity. The
district court, however, determined that the officers were entitled to qualified immunity only as an
“alternate ground” for dismissing the equal protection claim and only after determining that Goose
Island had not created an issue of fact regarding the claim. Because the Court upholds the district
court’s dismissal of the equal protection claim on its merits, it need not address whether the officers
were entitled to qualified immunity.
F. District Court’s Denial of Motion to Amend Pleadings.
Federal Rule of Civil Procedure 15(a) states that leave to amend a pleading “shall be freely
given when justice so requires.” Fed. R. Civ. P. 15(a). A district court abuses its discretion when
it denies a motion to amend and “fails to state the basis for its denial or fails to consider the
competing interests of the parties and the likelihood of prejudice to the opponent.” Moore v. City
of Paducah, 790 F.2d 557, 559 (6th Cir. 1986).
Goose Island filed this action in February, 1998. It moved to add McKenna as a defendant
in January, 2000. In its order denying Goose Island’s motion to add McKenna as a defendant, the
district court adopted the findings of the magistrate judge. In rendering a decision, the magistrate
judge specifically considered the following :
Based on the pleadings and the representations of counsel, I’m going to find that
there has been undue delay in filing the motion with respect to McKenna and
McKenna and Associates. I believe that the addition of McKenna and McKenna and
Associates at this period in time would be unduly prejudicial, both to the existing
defendants, the City of Keego Harbor, and the individuals, as well as to McKenna.
What the addition of McKenna and McKenna and Associates in this lawsuit would
require is reopening the whole case. This case has been going on for several years.
It went on previous to that, I believe, in the state court’s litigation between these
parties. I am not about, at this stage of the proceeding when discovery is closed, to

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No. 01-2695 R.S.W.W., et al. v. City of Keego Harbor, et al. Page 11
– to add a new party, following which discovery is going to reopen completely on
all the issues in the case.
Tr. Mot. Hr’g, pp. 28-29.
Thus, the magistrate judge found that there had been undue delay in the filing of the motion
and that the addition of McKenna would be unduly prejudicial to the existing Defendants given that
discovery was already complete. The magistrate judge further considered that Goose Island retained
the right to sue McKenna in a separate action. As the district court did not abuse its discretion, we
affirm its denial of Goose Island’s motion to amend its complaint to add McKenna.
III. CONCLUSION.
For the foregoing reasons, we REVERSE the district court’s Order dismissing Goose
Island’s unconstitutional conditions claim and the district court’s Order dismissing Goose Island’s
challenge to the Keego Harbor sign ordinance; we otherwise AFFIRM the district court and; we
REMAND to the district court for further proceedings not inconsistent with this Opinion.

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