Tossa et al v. Tardif et al
Filing
63
OPINION and ORDER Regarding Defendants' 44 MOTION for Partial Dismissal and 50 MOTION for Summary Judgment. Signed by District Judge Gerald E. Rosen. (SBur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RAMSEY TOSSA, RAKIA TOSSA,
SILVIA TOSSA, and RHONDA TOSSA,
Plaintiffs,
Case No. 14-12319
v.
Hon. Gerald E. Rosen
ADAM TARDIF, et al.,
Defendants.
____________________________________/
OPINION AND ORDER REGARDING DEFENDANTS’
MOTIONS FOR PARTIAL DISMISSAL AND FOR SUMMARY
JUDGMENT
At a session of said Court, held in
the U.S. Courthouse, Detroit, Michigan
on
September 28, 2015
PRESENT: Honorable Gerald E. Rosen
Chief Judge, United States District Court
I. INTRODUCTION
Plaintiffs Ramsey Tossa, Rakia Tossa, Silvia Tossa, and Rhonda Tossa
commenced this action in this Court on June 12, 2014, complaining of civil rights
violations committed against them at their home in Sterling Heights, Michigan.
Specifically, in an amended complaint filed on July 25, 2014, Plaintiffs have
asserted federal constitutional claims of unlawful entry, unreasonable execution of
a search warrant, and excessive force against a number of law enforcement
officers employed by the federal Drug Enforcement Administration (“DEA”), the
City of Sterling Heights, and the Michigan State Police. Plaintiffs also have
asserted a federal claim under 42 U.S.C. § 1983 against the City of Sterling
Heights, as well as state-law claims of willful and wanton misconduct and gross
negligence against the individual Defendant police officers. Each of these federal
and state-law claims arises from a law enforcement raid of Plaintiffs’ home in the
early morning hours of July 26, 2011, which Plaintiffs allege was based on a
search warrant issued without probable cause, and which was allegedly carried out
through unreasonable means including the use of excessive force. This Court’s
subject matter jurisdiction rests upon Plaintiffs’ assertion of claims arising under
federal law. See 28 U.S.C. § 1331.
Through the present pair of motions, the Defendant federal and Sterling
Heights law enforcement officers, as well as the Defendant City of Sterling
Heights itself, seek the dismissal of certain of Plaintiffs’ claims for failure to state
a claim, and an award of summary judgment in their favor as to other claims
asserted in Plaintiffs’ first amended complaint. In support of their motion for
partial dismissal, the federal Defendants argue (i) that Plaintiffs’ conclusory
allegations are insufficient to sustain their challenge to the warrant authorizing the
2
search of their home, (ii) that Plaintiffs’ claim of a knock-and-announce violation
is defeated by their failure to allege a forced entry into their home, and (iii) that to
the extent Plaintiffs’ claims of excessive force rest upon the Defendant officers’
use of handcuffs, these claims fail for lack of allegations of any resulting physical
injury. The Sterling Heights Defendants, for their part, contend that summary
judgment should be awarded in their favor on the claims Plaintiffs have asserted
against them, where (i) affidavits submitted by the individual Sterling Heights law
enforcement officers named in Plaintiffs’ complaint purportedly establish beyond
dispute that these individuals played no role in any unlawful conduct that might
have occurred in the course of the raid of Plaintiffs’ home, and (ii) the allegations
of Plaintiffs’ first amended complaint purportedly fail to support a viable claim of
municipal liability against the Defendant City of Sterling Heights.
Defendants’ two motions have been fully briefed by the parties. Having
reviewed the parties’ briefs and their accompanying exhibits, as well as the
remainder of the record, the Court finds that the relevant allegations, facts, and
legal issues are sufficiently presented in these written submissions, and that oral
argument would not aid the decisional process. Accordingly, the Court will decide
Defendants’ motions “on the briefs.” See Local Rule 7.1(f)(2), U.S. District Court,
Eastern District of Michigan. This opinion and order sets forth the Court’s rulings
3
on these motions.
II. FACTUAL BACKGROUND
Because Defendants filed their motions before the parties conducted any
discovery,1 the following account is derived almost exclusively from the
allegations of Plaintiffs’ first amended complaint. For present purposes, Plaintiffs’
factual allegations are taken as true.2
Plaintiffs Ramsey and Rakia Tossa are husband and wife, and they were 66
and 64 years old, respectively, at the time of the events giving rise to this suit. The
couple resides at a home on Marc Drive in Sterling Heights, Michigan, and two of
their adult daughters, Plaintiffs Silvia and Rhonda Tossa, live with them.3
At approximately 2:20 a.m. on July 26, 2011, federal, state, and local law
enforcement officers executed a search warrant at the Tossa residence. According
1
To be accurate, Plaintiffs were permitted in a June 18, 2014 order to conduct limited
discovery, but only for the purpose of identifying the several “John Doe” defendants named in
their initial complaint. As a result of this limited discovery, Plaintiffs filed a first amended
complaint in which the names of various law enforcement officers were substituted in place of
the “John Doe” defendants.
2
As discussed below, the motion filed by the Defendant City of Sterling Heights and the
individual Sterling Heights police officers is accompanied by the affidavits of each individual
officer, and the Sterling Heights Defendants point to these affidavits as support for the dismissal
of Plaintiffs’ claims against these individual officers. Later in this opinion, the Court considers
whether it may appropriately rely on these affidavits in resolving the Sterling Heights
Defendants’ motion.
3
Mr. and Mrs. Tossa have two other children, a son and a daughter, who reside elsewhere
and were not present at the incident giving rise to this suit.
4
to Plaintiffs’ complaint, the officers who participated or assisted in this raid
included (i) Defendants Adam Tardif, Kent Kleinschmidt, David Powell, Cheryl
Benedict, Justin Holton, Jeremy Fitch, Jeff Moore, Steven West, and Lloyd G.
Hopkins of the federal Drug Enforcement Administration (“DEA”),4 (ii)
Defendants Helen Tsouroullius, Kenneth Bresinski, Kristie Kaufman, Tom
Stechly, Nancy Dupre, and Carly Hall of the Sterling Heights Police Department,5
and (iii) a Michigan State Police trooper with the last name of Unterbrink.6
Following the arrival of these Defendant law enforcement officers at
Plaintiffs’ residence in the early morning hours of July 26, 2011, one or more of
the federal officers “banged on the front door” of the home without identifying the
Defendants as police officers. (First Amended Complaint at ¶ 21.) Upon opening
the door to his home, Mr. Tossa was grabbed, knocked to the floor, dragged
outside to his front lawn, and forced to the ground by one of the Defendant
officers. One or more of the Defendant officers then kneeled on Mr. Tossa,
4
In some instances, Plaintiffs’ first amended complaint identifies these federal officers
only by their last names, but the motion filed by the individual federal Defendants supplies first
names for these officers. In addition, while the complaint names “S.A. Holten” as one of these
federal officers, the federal Defendants’ motion lists “Holton” as the correct spelling of this
officer’s last name.
5
The Sterling Heights Defendants indicate in their motion that the correct spelling of the
last name of the first of these individuals is “Tsouroullius,” and not “Tsouroullis” as set forth in
Plaintiffs’ first amended complaint.
6
The record does not disclose the first name of this Michigan State Police officer.
5
triggering a pre-existing asthma condition, and “applied unnecessary, excessive
and unreasonable force” to Mr. Tossa’s head, neck, chest, and back. (Id. at ¶¶ 23,
32(b).)
After Mr. Tossa was removed from his home, the Defendant officers next
dragged Mrs. Tossa outside as she was dressed only in sleepwear, and they threw
her to the ground and handcuffed her through the use of “excessive, unreasonable,
and unnecessary force.” (Id. at ¶ 24.) Likewise, Silvia and Rhonda Tossa were
removed from the home dressed only in sleepwear, thrown to the ground, and
handcuffed. Although Plaintiffs cooperated with the Defendant officers at all
times, neither resisting the officers nor refusing to follow their orders, the officers
nonetheless employed excessive force, used “obscene and foul language,” and
pointed firearms at Plaintiffs as they conducted their raid of Plaintiffs’ home. (Id.
at ¶¶ 26-31.) According to Plaintiffs’ brief in response to the federal Defendants’
motion, the Tossas were “held on their front lawn for nearly a half an hour, while
the Defendants performed a perfunctory search and quickly determined that they
had the wrong house.” (Plaintiffs’ 1/20/2015 Response Br. at 4-5.)7
In the wake of this July 26, 2011 incident, Plaintiffs brought the present suit
7
Plaintiffs’ complaint lacks any similar allegations as to the length of Plaintiffs’ detention
on their front lawn or the results of the search of Plaintiffs’ home, and the quoted passage from
Plaintiffs’ brief is unsupported by citation to the record.
6
on June 12, 2014, asserting a variety of federal and state-law claims against the
sixteen individual Defendant law enforcement officers who allegedly participated
in or were somehow involved in this raid, as well as the City of Sterling Heights
where six of these officers were employed at the time. Specifically, Plaintiffs’
first amended complaint asserts (i) federal Fourth Amendment claims of unlawful
entry, unreasonable search and seizure, and excessive force against the federal
Defendant law enforcement officers under Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999 (1971), (ii)
analogous federal claims of Fourth Amendment violations against the Defendant
state and local law enforcement officers and the City of Sterling Heights under 42
U.S.C. § 1983, and (iii) state-law claims of willful and wanton misconduct and
gross negligence against each of the individual Defendant law enforcement
officers.8
III. ANALYSIS
8
In a stipulated order dated November 26, 2014, the parties agreed to substitute the United
States of America for the individual federal Defendant law enforcement officers named as parties
to Count V of Plaintiffs’ first amended complaint, in which Plaintiffs asserted tort claims arising
under state law. After the Defendant United States of America moved to dismiss Count V on the
ground that Plaintiffs failed to timely exhaust their administrative remedies before pursuing these
tort claims against the federal government, the parties agreed to the entry of a December 17, 2014
stipulated order dismissing these claims against the Defendant United States of America only.
Accordingly, the United States is no longer a party to this suit, and the individual federal
Defendant law enforcement officers face liability only under Plaintiffs’ federal Bivens claims of
Fourth Amendment violations.
7
A.
The Standards Governing Defendants’ Motions
In the first of the two motions pending before the Court, the individual
federal Defendant law enforcement officers seek the dismissal of certain of the
claims asserted against them for “failure to state a claim upon which relief can be
granted.” Fed. R. Civ. P. 12(b)(6). When considering a motion brought under
Rule 12(b)(6), the Court must construe the complaint in a light most favorable to
Plaintiffs and accept all well-pled factual allegations as true. League of United
Latin American Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007). Yet, “the
tenet that a court must accept as true all of the allegations contained in a complaint
is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.
Ct. 1937, 1949 (2009). Moreover, “[w]hile a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s
obligation to provide the grounds of his entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct.
1955, 1964-65 (2007) (internal quotation marks, alteration, and citations omitted).
Rather, to withstand a motion to dismiss, the complaint’s factual allegations,
accepted as true, “must be enough to raise a right to relief above the speculative
level,” and to “state a claim to relief that is plausible on its face.” Twombly, 550
8
U.S. at 555, 570, 127 S. Ct. at 1965, 1974.
The motion brought by the Sterling Heights Defendants, in contrast, seeks
an award of summary judgment in favor of these Defendants on each of the claims
asserted against them in Plaintiffs’ first amended complaint. Under the Federal
Rule governing this motion, summary judgment is proper “if the movant shows
that there is no genuine issue as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). As the Supreme Court has
explained, “the plain language of Rule 56[] mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who
fails to make a showing sufficient to establish the existence of an element essential
to that party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986).
In deciding a motion brought under Rule 56, the Court must view the
evidence “in a light most favorable to the party opposing the motion, giving that
party the benefit of all reasonable inferences.” Smith Wholesale Co. v. R.J.
Reynolds Tobacco Co., 477 F.3d 854, 861 (6th Cir. 2007). Yet, the nonmoving
party may not rely on bare allegations or denials, but instead must support a claim
of disputed facts by “citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
9
declarations, stipulations . . . , admissions, interrogatory answers, or other
materials.” Fed. R. Civ. P. 56(c)(1)(A). Alternatively, the nonmoving party may
seek to “show[] by affidavit or declaration that, for specified reasons, it cannot
present facts essential to justify its opposition,” and the Court may then defer
consideration of the motion, deny it, or grant an opportunity for discovery. Fed. R.
Civ. P. 56(d).
B.
Plaintiffs’ Allegations Are Insufficient to Support Their Challenge to
the Warrant Authorizing the Search of Their Home.
In Count II of their first amended complaint, Plaintiffs allege that the federal
Defendant law enforcement officers (the “Federal Defendants”) violated their
rights under the Fourth Amendment by unlawfully entering and searching their
home in reliance on a warrant issued without probable cause. The Federal
Defendants seek the dismissal of this claim, arguing that Plaintiffs’ complaint
features wholly conclusory allegations that are insufficient to state a plausible
claim (i) that the warrant to search Plaintiffs’ home was issued without probable
cause, or (ii) that this warrant was procured through false or misleading
statements. The Court agrees.
It is a bedrock principle of Fourth Amendment law that a search warrant
may not issue unless a reviewing judge or magistrate determines that “given all the
circumstances set forth in the affidavit . . . there is a fair probability that
10
contraband or evidence of a crime will be found in a particular place.” Mills v.
City of Barbourville, 389 F.3d 568, 575-76 (6th Cir. 2004) (quoting Illinois v.
Gates, 462 U.S. 213, 238 (1983)). “In evaluating the issuing magistrate’s
probable cause determination, [the courts] apply a flexible ‘totality of the
circumstances’ approach, which permits us to evaluate the particular facts of each
case.” Mills, 389 F.3d at 576. “Sufficient information must be presented to the
magistrate to allow that official to determine probable cause; his action cannot be
a mere ratification of the bare conclusions of others.” 389 F.3d at 576.
In this case, the warrant to search Plaintiffs’ residence rested upon an
affidavit prepared by Defendant Adam Tardif, a task force officer for the federal
DEA. (See Federal Defendants’ Motion, Ex. 1, Search Warrant Affidavit.)9 In this
affidavit, Defendant Tardif described a single-car rollover crash of a vehicle
driven by an individual named Jason Yousif. (See id. at ¶ 3(i).) A Michigan State
Police (“MSP”) trooper who was dispatched to the scene of this accident
determined that the car was registered to Yousif at Plaintiffs’ Marc Drive address
in Sterling Heights. (See id.)
According to Tardif’s affidavit, Yousif stated during the crash investigation
9
Plaintiffs challenge the Federal Defendants’ reliance on this search warrant affidavit in
their motion, arguing that the affidavit lies outside the scope of the pleadings and accompanying
exhibits that the Court may properly consider in ruling on a Rule 12(b)(6) motion to dismiss.
The Court addresses this issue below.
11
that “he had both [m]arijuana and firearms in his vehicle,” and a search of the car’s
passenger compartment revealed “approximately 17 ounces of [m]arijuana and a
[m]arijuana plant, packaged in 9 different containers to include ‘Mason’ jars,
plastic shopping baggies, ‘Zip Loc’ style clear plastic baggie(s) and a black plastic
garbage bag.” (Id. at ¶ 3(j).) The MSP trooper also found two loaded guns in the
vehicle, as well as “a scale, a micro scope, a roll of clear plastic baggies, a wooden
box — later identified as a tool to dry [m]arijuana — and a DTE Energy billing
statement” for an address in Highland Park, Michigan. (Id.) Other documents in
the car also referenced this Highland Park address, and Yousif purportedly stated
in an interview that he was a “care giver of [m]arijuana” who maintained a
marijuana cultivating operation at this address and had four patients, although he
was only able to produce “three expired patient cards for dispensing medical
[m]arijuana.” (Id. at ¶¶ 3(j), (k).)
Based on this and other information, as well as Defendant Tardif’s
“education, training and experience,” (id. at ¶ 4), Tardif opined in his affidavit that
there was probable cause to believe that evidence of criminal activity could be
found at the residence on Marc Drive in Sterling Heights that was listed as
Yousif’s address on his vehicle registration. On July 25, 2011, a state district
court judge issued a warrant authorizing the search for and seizure of controlled
12
substances, firearms, drug paraphernalia, narcotic trafficking records, and other
items at the Marc Drive premises, (see Federal Defendants’ Motion, Ex. 1, Search
Warrant), and a number of federal, state, and local law enforcement officers
executed this search warrant at Plaintiffs’ home in the early morning hours of July
26, 2011.
Under this record, the Federal Defendants argue that the doctrine of
qualified immunity shields them from any possible liability for their purported
participation in an unlawful search of Plaintiffs’ residence without probable cause.
As the Federal Defendants observe, a law enforcement officer ordinarily is
immune from liability for a search allegedly conducted without probable cause if
the officer “relies on a judicially secured warrant” in performing this search. Hale
v. Kart, 396 F.3d 721, 725 (6th Cir. 2005). This grant of qualified immunity is
unavailable only where the application for the warrant “is so lacking in indicia of
probable cause as to render official belief in its existence unreasonable.” Hale,
396 F.3d at 724 (citing Malley v. Briggs, 475 U.S. 335, 343-45 (1986)). In the
Federal Defendants’ view, Plaintiffs’ bare allegation of “unlawful entry onto and
into their premises without probable cause,” (First Amended Complaint at ¶ 46), is
manifestly inadequate to overcome the qualified immunity granted to them under
federal law, and to instead establish that the warrant authorizing the search of
13
Plaintiffs’ home was so lacking in indicia of probable cause that the Federal
Defendants could not have reasonably relied on this warrant in carrying out their
search of Plaintiffs’ residence. Rather, the Federal Defendants maintain that
Plaintiffs’ claim of an unlawful search of their home without probable cause rests
upon precisely the “[t]hreadbare recital[] of the elements of a cause of action” that
the Supreme Court has deemed insufficient, standing alone, to state a claim that
will withstand scrutiny under Rule 12(b)(6). Iqbal, 556 U.S. at 678, 129 S. Ct. at
1949.
In response, Plaintiffs do not point to any allegations in their first amended
complaint that could, if proven, overcome the Federal Defendants’ lawful reliance
on a judicially secured search warrant, nor do they request leave to further amend
their complaint by asserting additional facts that could defeat the Federal
Defendants’ appeal to qualified immunity.10 Rather, they first contend that the
Federal Defendants’ request for qualified immunity should be rejected as resting
upon materials outside the pleadings that the Court may not consider in deciding a
motion brought under Rule 12(b)(6). In particular, Plaintiffs note that the Federal
10
The Court recognizes that at one point in their response to the Federal Defendants’
motion, Plaintiffs do seek leave to amend their complaint to incorporate additional facts they
have learned since they filed their first amended complaint. (See Plaintiffs’ Br. in Response to
Federal Defendants’ Motion at 23-25.) This request for leave, however, concerns a different
issue raised in the Federal Defendants’ motion, which the Court addresses below.
14
Defendants’ motion is accompanied by complete, unredacted copies of the July 25,
2011 search warrant and Defendant Tardif’s supporting affidavit, and they
complain that these unredacted documents were not made available to them prior
to the Federal Defendants’ filing of their motion. To the contrary, when Plaintiffs
first sought to acquire these materials through Freedom of Information Act
(“FOIA”) requests made prior to this litigation, they evidently were given only
redacted versions of the search warrant and supporting affidavit. Against this
backdrop, Plaintiffs argue that the Federal Defendants “should not be permitted to
sandbag” them by submitting unredacted documents for the Court’s consideration
that were not yet part of the available record at the time Plaintiffs filed their initial
and amended complaints. (Plaintiffs’ Br. in Response to Federal Defendants’
Motion at 8.)
Plaintiffs’ contention, however, conflates two separate issues arising from
the Federal Defendants’ proposed reliance on the unredacted search warrant and
affidavit in support of their motion, and these two issues are governed by distinct
legal standards. First, to the extent Plaintiffs suggest that these unredacted
materials should be deemed “outside of the pleadings,” and hence unavailable for
consideration in resolving a Rule 12(b)(6) motion, because they were not part of
the record until the Federal Defendants filed their present motion, (Plaintiffs’ Br.
15
in Response to Federal Defendants’ Motion at 7), the Sixth Circuit has explained
that a document may be treated as part of the pleadings if it is “referred to in the
pleadings and is integral to the claims” asserted in those pleadings. Commercial
Money Center, Inc. v. Illinois Union Insurance Co., 508 F.3d 327, 335-36 (6th Cir.
2007). In this case, the search warrant and Defendant Tardif’s supporting affidavit
are expressly referenced in Plaintiffs’ complaint, (see First Amended Complaint at
¶¶ 18-19), and it is clear that these materials are integral to Plaintiffs’ claim that
the Federal Defendants’ entry into and search of their home unlawfully rested
upon a warrant issued “without probable cause,” (id. at ¶ 46). It follows that the
Court may consider the unredacted search warrant and supporting affidavit in
deciding the Federal Defendants’ Rule 12(b)(6) motion to dismiss. Indeed, it is
difficult to see how the Court could meaningfully assess the viability of Plaintiffs’
claim of “unlawful entry onto and into their premises without probable cause,”
(First Amended Complaint at ¶ 46), unless the Court were able to consider the
entirety of the information provided to the state court judge and inquire whether
this information gave rise to a fair probability that contraband or evidence of a
crime would be found in Plaintiffs’ home.
To be sure, Plaintiffs perhaps were operating at a bit of a disadvantage when
they filed their complaint before they had been given unredacted copies of the
16
search warrant and Defendant Tardif’s supporting affidavit. Yet, Plaintiffs cite no
authority for the proposition that a court’s review of the record in deciding a Rule
12(b)(6) motion is confined to those materials in the plaintiff’s possession at the
time the complaint was filed.11 To the extent that the delayed production of such
materials poses potential concerns of “sandbagging” or unfairness, such concerns
are properly addressed not through the Court’s disregard of documents that plainly
are integral to Plaintiffs’ claims, but instead through measures that ensure
Plaintiffs’ opportunity (i) to review these documents before they must respond to a
Rule 12(b)(6) motion that relies in part on these materials, and (ii) to amend their
11
Plaintiffs instead raise two other points that are immaterial to the issue presented here.
First, Plaintiffs contend that the unredacted search warrant and supporting affidavit do not fit
within any recognized exception to the general rule that a court’s review of a Rule 12(b)(6)
motion must be confined to the pleadings and materials deemed to be part of the pleadings. (See
Plaintiffs’ Br. in Response to Federal Defendants’ Motion at 7-8.) As explained, however, the
search warrant and affidavit are properly viewed as part of the pleadings, and thus need not
satisfy any “exception” to be considered by the Court.
Next, Plaintiffs suggest that the search warrant and affidavit reflect the Federal
Defendants’ “version of the facts,” and they argue that they should be “allowed to conduct
discovery regarding these facts” before the Court assesses the viability of their challenge to the
search warrant. (Id. at 8.) Yet — with one caveat addressed below — the Court’s consideration
of Plaintiff’s challenge to the search warrant does not demand that the Court take sides as to the
accuracy of the facts set forth in Defendant Tardif’s search warrant affidavit. Rather, this
affidavit memorializes what the state court was told when Defendant Tardif sought a warrant to
search Plaintiffs’ home, and the relevant question, for present purposes, is whether the statements
in this affidavit suffice to support the state court’s finding of probable cause to conduct this
search. As explained, Plaintiffs have offered only the conclusory allegation that the warrant was
issued without probable cause, and this bare statement of the elements of a Fourth Amendment
claim of a search without probable cause is insufficient under Twombly and Iqbal to state a
plausible claim to relief.
17
complaint if warranted by the new information disclosed in these unredacted
documents. Plaintiffs were afforded this opportunity here, where they had seven
weeks to review the unredacted search warrant and affidavit between the Federal
Defendants’ December 2, 2014 filing of their motion to dismiss and Plaintiffs’
filing of their response on January 20, 2015.
Despite this opportunity for review of a more complete record, Plaintiffs
have failed to propose any amendments to their complaint that would provide
more specific support for their bare-bones, conclusory allegation that the warrant
authorizing the search of their home was issued without a proper showing of
probable cause.12 Consequently, the Court finds that Plaintiffs have failed to state
a viable claim that the Federal Defendants unlawfully searched their home without
probable cause, where these law enforcement officers were entitled to rely on a
state court’s finding of probable cause, and where Plaintiffs’ complaint lacks any
allegations which, if proven, would demonstrate that the search warrant issued by
the state court was so lacking in indicia of probable cause as to render an officer’s
reliance on the warrant unreasonable.
Plaintiffs’ remaining challenge to the warrant to search their home rests on
12
As noted earlier, Plaintiffs also are challenging the search warrant on another ground,
and they propose to amend their complaint with allegations that purportedly would provide
further support for this separate challenge. The Court turns to this question immediately below.
18
the allegation that Defendant Tardif “deliberately and/or recklessly provided
misleading, inaccurate, false and incorrect information” in his affidavit that led a
state court to issue this search warrant without a proper showing of probable
cause. (First Amended Complaint at ¶ 19.) In seeking the dismissal of this claim,
the Federal Defendants once again argue that it rests solely upon a bare recital of
the elements of a cause of action — in particular, a violation of the standard
articulated in Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978), for
evaluating a law enforcement officer’s conduct in securing a warrant, see Hale,
396 F.3d at 726 — while lacking any specific allegations as to “what statements
[in Tardif’s affidavit] were false or misleading or what information was omitted.”
(Federal Defendants’ Motion, Br. in Support at 10.) In response, Plaintiffs first
suggest that it is “impossible” for them “to know without further discovery the
exact nature of the[] lies and significant omissions” in Defendant Tardif’s
affidavit, and they ask for an opportunity to pursue this discovery. (Plaintiffs’ Br.
in Response to Federal Defendants’ Motion at 8.) Yet, the key points in this
affidavit are (i) that marijuana and other evidence of drug trafficking activity were
found in a vehicle driven by and registered to Jason Yousif, and (ii) that this
vehicle was registered at the Marc Drive address in Sterling Heights where
Plaintiffs reside. Plaintiffs do not suggest what evidence they might unearth in
19
discovery that would call these statements into question, and they cannot be
permitted to go forward with their claim of a Franks violation based solely on a
boilerplate, wholly conclusory allegation that Defendant Tardif’s affidavit
contained unspecified “misleading, inaccurate, false and incorrect information”
that led the state court to issue a search warrant without probable cause.
In apparent recognition that the allegations presently offered in support of
this claim are insufficient, Plaintiffs request in the alternative that they be
permitted to amend their complaint to incorporate the following “additional facts
now known that would show serious, exculpatory omissions from Defendant
Tardif’s affidavit:”
(i) that Plaintiffs were uninvolved in and “entirely unrelated to” the car
accident that led Defendant Tardif to obtain a search warrant for Plaintiffs’
residence;
(ii) that the warrant was sought from a state court in Dearborn,
Michigan, which is located in a county different from the ones in
which Plaintiffs reside and in which Jason Yousif’s single-car
accident occurred, and from a judge who purportedly has a reputation
for being “anti-marijuana;” and
(iii) that the description of Plaintiffs’ home in Defendant Tardif’s
affidavit gives rise to the inference “that Defendant Tardif visited and
observed [Plaintiffs’] home prior to drafting the search warrant
affidavit,” and thereby suggests Defendant Tardif’s awareness “that
Mr. Yousif did not reside at the house and that the current residents
had no connection to Mr. Yousif.”
20
(Plaintiffs’ Br. in Response to Federal Defendants’ Motion at 23-24.)13
As the Federal Defendants aptly observe, none of these additional facts,
even if alleged in an amended complaint and ultimately borne out by evidence,
demonstrate “even the slightest falsehood or reckless disregard for the truth by
[Defendant] Tardif.” (Federal Defendants’ Reply Br. at 5.) While some of these
additional facts arguably (and at best) would somewhat diminish the likelihood
that Mr. Yousif resided at the Marc Drive address at the time of his accident, the
Fourth Amendment demands only “probable cause” to search, and not a certainty
that contraband or evidence of a crime will be found at a particular location. See
United States v. Allen, 211 F.3d 970, 975 (6th Cir. 2000). Moreover, Defendant
Tardif’s omission of these additional facts from his affidavit hardly suggests the
intent to mislead that Plaintiffs must show as an element of their Franks claim, see
Hale, 396 F.3d at 726-27, where Plaintiffs offer only the barest of speculation that
13
As to this last point, Plaintiffs claim that Defendant Tardif’s affidavit acknowledges Mr.
Yousif’s statement at the time of his auto accident “that he resided at a different address in
Highland Park,” as opposed to the Marc Drive address in Sterling Heights. (Id. at 24 n.15.) In
fact, while the affidavit describes the discovery in Mr. Yousif’s vehicle of a DTE Energy billing
statement and other documents referencing a Highland Park address, it does not recount any
statement by Mr. Yousif that he lived at this Highland Park address. (See Federal Defendants’
Motion, Ex. 1, Search Warrant Affidavit at ¶ 3(j).) Rather, the documents in Mr. Yousif’s
vehicle referred to a business, Diverse Engineering Simulation, as being located at the Highland
Park address, and Mr. Yousif stated only that he “established and kept a [m]arijuana
growing/cultivation operation at” this address. (Id. at ¶¶ 3(j), (k).) These statements in Tardif’s
affidavit, then, are in no way inconsistent with the notion that Mr. Yousif lived at the Marc Drive
address in Sterling Heights where his vehicle was registered.
21
Defendant Tardif was aware of the absence of a connection between Mr. Yousif
and Plaintiffs as the then-current residents of the Marc Drive premises. As for the
location and purported reputation of the state court judge who issued the search
warrant, Plaintiffs fail to identify any authority for the proposition that such
considerations are in any way relevant to a Franks inquiry. Accordingly, the
Court concludes that Plaintiffs have failed to plead a viable claim of a Franks
violation in Defendant Tardif’s procurement of a warrant to search Plaintiffs’
home, and that Plaintiffs’ proposed amendments to their complaint would not cure
the defects in this claim.
C.
Plaintiffs’ Complaint Lacks Allegations of Forced Entry That Could
Support Their Claim of a Fourth Amendment Knock-and-Announce
Violation.
Count II of Plaintiffs’ first amended complaint charges the Federal
Defendants with, among other things, unlawfully carrying out their search of
Plaintiffs’ home, (see First Amended Complaint at ¶ 46), and this challenge to the
manner in which the Federal Defendants executed the search warrant appears to
rest in part on the allegation that one or more of these federal law enforcement
officers “banged on the front door” of Plaintiffs’ home “without identifying
themselves as police officers,” (id. at ¶ 21). To the extent that Plaintiffs mean
through these allegations to accuse the Federal Defendants of a “knock-and22
announce” violation, the Federal Defendants argue that any such claim is subject
to dismissal, in light of the allegations elsewhere in Plaintiffs’ complaint showing
that there was no forced entry into Plaintiffs’ home.14 The Court agrees.
In Wilson v. Arkansas, 514 U.S. 927, 934, 115 S. Ct. 1914, 1918 (1995), the
Supreme Court held that “in some circumstances an officer’s unannounced entry
into a home” might run afoul of the Fourth Amendment’s protection against
unreasonable searches and seizures. In so ruling, the Court observed that “[a]t the
time of the framing, the common law of search and seizure recognized a law
enforcement officer’s authority to break open the doors of a dwelling, but
generally indicated that he first ought to announce his presence and authority.”
Wilson, 514 U.S. at 929, 115 S. Ct. at 1915. The Court determined that “this
common-law ‘knock and announce’ principle forms a part of the reasonableness
inquiry under the Fourth Amendment,” explaining that it had “little doubt that the
Framers of the Fourth Amendment thought that the method of an officer’s entry
into a dwelling was among the factors to be considered in assessing the
reasonableness of a search or seizure.” 514 U.S. at 929, 934, 115 S. Ct. at 1915,
1918.
14
The Federal Defendants acknowledge that Plaintiffs have raised other challenges,
beyond their knock-and-announce claim, to the manner in which the Defendant law enforcement
officers executed the search warrant, but they do not seek the dismissal of these other challenges
in their present motion. (See Federal Defendants’ Reply Br. at 3.)
23
As the Federal Defendants correctly observe, the pertinent Supreme Court
and Sixth Circuit precedents consistently recognize that forced entry is an essential
element of a claimed knock-and-announce violation. Just as Wilson characterizes
the “knock and announce” rule as permitting a law enforcement officer to “break
open the doors of a dwelling” after first “announc[ing] his presence and
authority,” Wilson, 514 U.S. at 929, 115 S. Ct. at 1915, subsequent Supreme Court
decisions confirm that this rule protects against the risks inherent in “an
unannounced entry,” including “the destruction of property occasioned by a
forcible entry,” Hudson v. Michigan, 547 U.S. 586, 594, 126 S. Ct. 2159, 2165
(2006) (internal quotation marks and citations omitted); see also Richards v.
Wisconsin, 520 U.S. 385, 387, 117 S. Ct. 1416, 1418 (1997) (explaining that the
knock-and-announce rule requires that “police officers entering a dwelling must
knock on the door and announce their identity and purpose before attempting
forcible entry”).
Likewise, the Sixth Circuit has described the knock-and-announce rule as
dictating that “[a]bsent exigent circumstances, it is unreasonable under the Fourth
Amendment for an officer to enter a dwelling without first knocking and
announcing his presence and authority.” United States v. Dice, 200 F.3d 978, 982
(6th Cir. 2000), abrogated on other grounds by Hudson, 547 U.S. 586, 126 S. Ct.
24
2159; see also Marcilis v. Jones, No. 10-2683, 494 F. App’x 535, 537 (6th Cir.
Aug. 14, 2012) (“The failure of police officers to knock and announce prior to
forcibly entering a location to execute a search warrant, absent exigent
circumstances, is a violation of the Fourth Amendment.”); Ingram v. City of
Columbus, 185 F.3d 579, 588 (6th Cir. 1999) (explaining that “[u]nder the Fourth
Amendment, officers must knock and announce their presence and authority
before entering a private residence”); United States v. Spikes, 158 F.3d 913, 924
(6th Cir. 1998) (noting the claim in that case that “the police failed to comply with
the ‘knock and announce’ rule by not waiting long enough after knocking and
announcing their presence before entering the residence”). As explained by the
Court of Appeals, this rule “serves to respect the sanctity of a person’s home by
affording notice to those inside so that they may open the door peaceably and
without the needless destruction of property, as well as by avoiding the possibility
of a violent confrontation is those inside mistook the police for intruders.” Spikes,
158 F.3d at 925.
In this case, Plaintiffs allege that after “[o]ne or more of the Federal . . .
Defendants banged on the front door” of their home “without identifying
themselves as police officers,” Mr. Tossa responded by “open[ing] the door” to his
home. (First Amended Complaint at ¶¶ 21-22.) It follows from these allegations
25
that the Federal Defendants did not violate the Fourth Amendment knock-andannounce requirement, as it cannot be said that they entered Plaintiffs’ home,
whether forcibly or otherwise, “without first knocking and announcing [their]
presence and authority.” Dice, 200 F.3d at 982. While Plaintiffs allege that the
Federal Defendants failed to identify themselves as police officers or otherwise
announce their presence and authority as they knocked on the door to Plaintiffs’
home, they further state that Mr. Tossa foreclosed any possibility of a forced entry
into the home by opening the door in response to the officers’ “bang[ing].”
Absent such a forced entry, the Federal Defendants cannot be held liable for a
knock-and-announce violation.
The arguments offered by Plaintiffs against this conclusion are not
persuasive. In particular, Plaintiffs point to language in a number of decisions
emphasizing the importance of the requirement that police officers announce their
presence before executing a search warrant, see, e.g., Ingram, 185 F.3d at 590
(cautioning that “courts should hesitate to approve unannounced police entries
into private residences”); Spikes, 158 F.3d at 925 (opining that the “proper trigger
point” for determining whether the police have complied with the knock-andannounce rule and may enter a home “is when those inside should have been
alerted that the police wanted entry to execute a warrant”), and noting that the
26
knock-and-announce rule serves interests beyond the prevention of property
damage resulting from a forced entry, see, e.g., Dice, 200 F.3d at 982 (“At its
heart, the [knock-and-announce] rule exists to protect the occupants of private
residences.”); United States v. Martin, No. 03-5691, 112 F. App’x 456, 459 (6th
Cir. Oct. 8, 2004) (explaining that “the purpose of the [knock-and-announce] rule
is to notify the [occupants] inside [a home] that policemen are at the door and want
to come in, thus protecting property and safety”). Yet, while it is undoubtedly true
that announcement of police presence is an essential and indispensable element of
the knock-and-announce rule, and that this rule serves “several important
interests,” only one of which is avoidance of the “needless destruction of private
property” attendant to a forced entry, Dice, 200 F.3d at 982, the fact remains that
no case identified by Plaintiffs (or in the Court’s own research) has found a
violation of the knock-and-announce rule where there was no forced entry of a
residence, or where, as here, an occupant of the home opened the door before the
police attempted a forced entry. Accordingly, the Court finds that Plaintiffs have
failed to state a viable claim that the Federal Defendants committed a knock-andannounce violation in their execution of the warrant to search Plaintiffs’ home.15
15
Moreover, in view of the absence of any case law finding a violation of the knock-andannounce rule under circumstances akin to those presented here, the Court readily concludes that
the doctrine of qualified immunity would shield the Federal Defendants from liability for any
knock-and-announce claim Plaintiffs could pursue arising from the facts of this case. See
27
D.
Plaintiffs May Pursue Claims of Excessive Force Based in Part on the
Defendant Officers’ Use of Handcuffs, Despite the Absence of
Allegations of Physical Injury Attributable Specifically to the Use of
Handcuffs.
Count I of Plaintiffs’ first amended complaint asserts Fourth Amendment
claims of excessive force against the individual federal Defendant law
enforcement officers. As the final issue advanced in their motion, the Federal
Defendants seek the dismissal of these claims to the extent that they are based
upon the officers’ alleged use of handcuffs during the course of their interactions
with Plaintiffs. In support of this request, the Federal Defendants point to the
absence of allegations in the first amended complaint that any of the four Plaintiffs
suffered physical injuries as a direct result of being handcuffed, and they contend
that the law precludes a claim of excessive force due to handcuffing unless there
are resulting physical injuries. Be that as it may, the Court agrees with Plaintiffs
that their complaints of inappropriate handcuffing are merely one part of a larger
series of allegations of excessive force, and that these allegations must be viewed
in their totality, rather than segmented into distinct types of allegedly unlawful
activity, in assessing the viability of Plaintiffs’ claims of excessive force.
As the Federal Defendants correctly observe, the Sixth Circuit has held that
Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039 (1987) (explaining that a
government official surrenders his entitlement to qualified immunity only where the
unlawfulness of his conduct is “apparent” in “light of pre-existing law”).
28
“when there is no allegation of physical injury, the handcuffing of an individual
incident to a lawful arrest is insufficient as a matter of law to state a claim of
excessive force under the Fourth Amendment.” Neague v. Cynkar, 258 F.3d 504,
508 (6th Cir. 2001); see also Lyons v. City of Xenia, 417 F.3d 565, 575-76 (6th
Cir. 2005) (explaining that “[i]n order to reach a jury” on a claim of excessive
force due to handcuffing, “the plaintiff must allege some physical injury from the
handcuffing,” and must also “show that the officers ignored [the] plaintiff’s
complaints that the handcuffs were too tight”). In this case, Plaintiffs’ complaint
does not identify any physical injuries they suffered that are expressly attributable
to the Defendant officers’ use of handcuffs, nor do Plaintiffs allege that they made
any complaints to the officers that the handcuffs were too tight. It follows, in the
Federal Defendants’ view, that Plaintiffs have failed to state a viable claim of
excessive force due to the use of handcuffs.
Yet, the claims of excessive force asserted by Plaintiffs here do not rest
solely on the use of handcuffs, but rather cite the Defendant officers’ use of
handcuffs as merely one of various unlawful measures these officers allegedly
employed against the four Plaintiffs in the course of executing the warrant to
search their home. As to Mr. Tossa, for example, the complaint alleges that after
he opened the door to his home, the Defendant officers “grabbed him and knocked
29
him to the floor and then dragged him outside to his front law and forced him to
the ground.” (First Amended Complaint at ¶ 22.) Plaintiffs further allege that one
or more of the Defendant officers “applied unnecessary, excessive and
unreasonable force” to Mr. Tossa’s “head, neck, chest and back areas,” resulting in
a “serious life threatening obstruction” of his breathing. (Id. at ¶ 23.) Similarly,
the complaint alleges that the Defendant officers dragged Mrs. Tossa and her two
daughters out of their home, threw them to the ground, and handcuffed them,
while also pointing their weapons at the four Plaintiffs and directing obscene and
foul language at them. (Id. at ¶¶ 24-29.) Plaintiffs allege that throughout this
incident, they “cooperated with and did not resist” the Defendant officers, nor did
they “refuse to follow” the officers’ orders. (Id. at ¶ 31.)
Against this backdrop, the Court finds that the cases cited by the Federal
Defendants are not controlling here, as they describe the elements of a claim of
excessive force that rests solely and distinctly on the use of handcuffs. In this
case, by contrast, the use of handcuffs is only one a number of ways in which
Plaintiffs allege that the Defendant officers employed excessive force. As
Plaintiffs observe, an excessive force inquiry requires consideration of the totality
of the circumstances presented in a particular case, and turns upon a variety of
factors such as the severity of the crime at issue, whether the plaintiff posed an
30
immediate threat to the safety of officers or others, and whether the plaintiff was
actively resisting the officers’ lawful activities. See Miller v. Sanilac County, 606
F.3d 240, 251, 253 (6th Cir. 2010). In the Court’s view, the Defendant officers’
alleged use of handcuffs as they executed the warrant to search Plaintiffs’ home is
an inseparable part of the totality of the circumstances that a trier of fact must
consider in weighing these factors and determining whether the degree of force
employed by the officers was objectively reasonable.
Indeed, as Plaintiffs point out, the Defendant officers’ alleged use of
handcuffs in this case might well bear upon the lawfulness of the actions taken by
officers after the handcuffs were applied, as a finding of excessive force can arise
from the continued use of force after an individual has been handcuffed and
subdued. See, e.g., Baker v. City of Hamilton, 471 F.3d 601, 607 (6th Cir. 2006)
(citing that court’s repeated holdings that “the use of force after a suspect has been
incapacitated or neutralized is excessive as a matter of law”). At a minimum, then,
evidence of the Defendant officers’ alleged use of handcuffs will almost surely be
relevant to the excessive force inquiry, and there is little to be gained by
dismissing a discrete claim arising from this specific activity when evidence of
this handcuffing will continue to play a role in Plaintiffs’ remaining claims of
excessive force. Accordingly, because Plaintiffs’ allegations of handcuffing are
31
material to the totality of the circumstances that must be considered in resolving
Plaintiffs’ claims of excessive force, the Court declines to treat these allegations as
intended to support a separate claim that should be assessed in isolation from
Plaintiffs’ allegations of other forms of excessive force employed during the same
incident.
E.
The Sterling Heights Defendants Have Failed to Rebut Plaintiffs’
Showing of a Need for Discovery in Order to Produce Evidence in
Support of Their Claims.
In Count III of their first amended complaint, Plaintiffs have asserted claims
under 42 U.S.C. § 1983 against Defendants Helen Tsouroullius, Kenneth
Bresinski, Kristie Kaufman, Tom Stechly, Nancy Dupre, and Carly Hall of the
Sterling Heights Police Department (the “Sterling Heights Defendants”) and two
other individual Defendants,16 alleging that these law enforcement officers used
excessive force against Plaintiffs and otherwise violated the Fourth Amendment
protection against unreasonable searches and seizures in their execution of the
warrant to search Plaintiffs’ home. (See First Amended Complaint at ¶ 50.) In
their present motion, the Sterling Heights Defendants seek an award of summary
16
Defendant Tardif and a Michigan State Trooper with the last name of Unterbrink also
are identified as parties to the § 1983 claims asserted in Count III of the complaint. The
inclusion of Defendant Tardif in this count presumably reflects the allegation elsewhere in the
complaint that in addition to serving as a DEA agent, Tardif also was “employed by the City of
Hamtramck, Michigan, as a police sergeant, and was acting under color of state law.” (First
Amended Complaint at ¶ 9.)
32
judgment in their favor on these § 1983 claims, pointing to affidavits in which
each of these individual officers denies that he or she played any active role in the
search of Plaintiffs’ home that could give rise to liability for any alleged violation
of Plaintiffs’ Fourth Amendment rights, and contending that Plaintiffs have failed
to produce any evidence that casts doubt on these denials of liability. In response,
Plaintiffs have submitted the affidavit of their counsel under Fed. R. Civ. P. 56(d)
stating that discovery is needed in order to pursue the evidence called for in the
Sterling Heights Defendants’ motion, and they argue that this motion should be
denied as premature until they have the opportunity to conduct this discovery. As
discussed below, the Court finds that Plaintiffs have the better of the argument on
this issue.
As the Sterling Heights Defendants observe, Plaintiffs’ first amended
complaint is largely lacking in specifics as to which particular Defendant law
enforcement officers participated in the alleged Fourth Amendment violations
giving rise to Plaintiffs’ federal claims. (See, e.g., First Amended Complaint at ¶
23 (alleging that “one or more of the Defendants, unknown at this time, applied
unnecessary, excessive and unreasonable force on Plaintiff RAMSEY TOSSA’s
head, neck, chest and back areas”).) In their motion, the Sterling Heights
Defendants propose to resolve this uncertainty as to which Defendant officers
33
played what role in the search of Plaintiffs’ home. Specifically, they have
produced affidavits from each of the six Sterling Heights officers named in
Plaintiffs’ complaint, setting forth the roles and responsibilities of these
individuals in the execution of the warrant to search Plaintiffs’ home. Four of
these individuals — Defendants Tsouroullius, Hall, Dupre, and Kaufman — state
in their affidavits (i) that they were employed as civilian dispatch officers on the
date of the incident giving rise to this suit, (ii) that on that day, they were working
at the Sterling Heights Police Department, and thus were not present at Plaintiffs’
home as part of the law enforcement team that searched this residence, and (iii)
that they had no supervisory role over the DEA raid of Plaintiffs’ home or over
any other officers named as Defendants in this case. (See Sterling Heights
Defendants’ Motion, Ex. G, Tsouroullius Aff.; Ex. H, Hall Aff.; Ex. I, Dupre Aff.;
Ex. J, Kaufman Aff.) The remaining two Sterling Heights officers, Defendants
Bresinski and Stechly, acknowledge in their affidavits that they were dispatched to
Plaintiffs’ residence on the date of the raid, but they state that they were present
only to provide traffic control and perimeter support, and that, in this role, they
could not see the front of Plaintiffs’ home and did not witness the actual raid of
the premises or any use of force on Plaintiffs. (See Sterling Heights Defendants’
Motion, Ex. E, Bresinski Aff; Ex. F, Stechly Aff.)
34
As the Sterling Heights Defendants correctly point out, these affidavits, if
fully credited, would defeat each of the § 1983 claims asserted by Plaintiffs
against these individual Defendant officers. It is a well-established principle of
federal § 1983 law that “[e]ach defendant’s liability must be assessed individually
based on his own actions.” Binay v. Bettendorf, 601 F.3d 640, 650 (6th Cir.
2010). In the specific context of § 1983 claims of excessive force, while a
plaintiff need not show that each defendant officer “actively participated in
striking” him or her, an officer who has not directly inflicted harm may be held
liable for “fail[ing] to act to prevent the use of excessive force” by other officers
only if “(1) the officer observed or had reason to know that excessive force would
be or was being used, and (2) the officer had both the opportunity and the means
to prevent the harm from occurring.” Smoak v. Hall, 460 F.3d 768, 784 (6th Cir.
2006) (internal quotation marks and citation omitted). In this case, four of the six
Sterling Heights Defendants state in their affidavits that they were not even on the
scene of Plaintiffs’ home at the time that any excessive force might have been
employed, and the other two Sterling Heights Defendants indicate that they were
not in a position to intervene in any use of excessive force by any other Defendant
officer, as any such activity occurred out of their view from the perimeter of the
premises.
35
In response, Plaintiffs concede that they are not yet in a position to
challenge the statements made in the affidavits accompanying the Sterling Heights
Defendants’ motion. Nonetheless, they note that essentially no discovery has been
conducted in these proceedings,17 and they contend that Defendants’ request for
summary judgment should therefore be denied as premature. In particular,
Plaintiffs point to a provision in the Federal Rule governing Defendants’ motion
that authorizes the Court to deny or defer consideration of this motion, and also to
allow time for the parties to take discovery, if Plaintiffs “show[] by affidavit or
declaration that, for specified reasons, [they] cannot present facts essential to
justify [their] opposition” to Defendants’ motion. Fed. R. Civ. P. 56(d). In
accordance with this provision of Rule 56, Plaintiffs have submitted the affidavit
of their counsel stating (i) that, to date, the limited discovery authorized by the
Court enabled Plaintiffs only to identify the law enforcement officers involved in
the incident giving rise to this case, and did not otherwise “address the factual
issues underlying this case,” (ii) that even the limited materials produced to date
are suggestive of “direct involvement in the logistics and deployment of the raid,
search, and seizure by” the Sterling Heights Defendants, (iii) that apart from this
17
As noted earlier, Plaintiffs were granted the opportunity to take limited discovery for the
purpose of identifying the “John Doe” defendants named in their initial complaint.
36
limited production, the parties have not yet “exchanged any written discovery,
including initial disclosures under Rule 26, nor have any depositions been taken,”
and (iv) that Plaintiffs “require the opportunity to serve discovery requests . . .
concerning, among other matters, the individual Sterling Heights Defendants’
involvement in the raid, search, and seizure of the Plaintiffs,” and to “depose the
individual Defendants” concerning these matters. (Plaintiffs’ Response to Sterling
Heights Defendants’ Motion, Ex. 4, Nemeth Rule 56(d) Aff. at ¶¶ 4, 6, 10, 12, 14.)
In their reply in further support of their summary judgment motion, the
Sterling Heights Defendants do not even acknowledge Plaintiffs’ appeal to Rule
56(d), much less suggest any reason why the affidavit of Plaintiffs’ counsel might
be insufficient to trigger this provision and warrant the denial of Defendants’
motion until Plaintiffs have been given an opportunity to seek support for their
claims through discovery. Instead, they continue to fault Plaintiffs for failing to
produce “any evidence” that might rebut the affidavits of the Sterling Heights
officers, (Sterling Heights Defendants’ Reply Br. at 1, 3, 5), without any apparent
recognition that Rule 56(d), if satisfied, excuses such an absence of evidence.
This failure to address the possible applicability of Rule 56(d) here constitutes a
waiver of the Sterling Heights Defendants’ opportunity to contest Plaintiffs’
appeal to this provision. See Dillery v. City of Sandusky, 398 F.3d 562, 569 (6th
37
Cir. 2005) (explaining that “issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argument, are deemed waived”
(internal quotation marks and citations omitted)).
Moreover, the courts have recognized that where, as here, a summary
judgment motion is filed “early in the litigation, before a party has had any
realistic opportunity to pursue discovery relating to its theory of the case,” a
district court should “fairly freely” grant the relief authorized under Rule 56(d).
Burlington Northern Santa Fe Railroad Co. v. Assiniboine & Sioux Tribes of Fort
Peck Reservation, 323 F.3d 767, 773 (9th Cir. 2003). While it is true that “[b]are
allegations or vague assertions of the need for discovery are not enough under
Rule 56([d]),” and that a party who appeals to this provision must “describe with
some precision the materials [it] hopes to obtain with further discovery, and
exactly how [it] expects those materials would help [it] in opposing summary
judgment,” Everson v. Leis, 556 F.3d 484, 493 (6th Cir. 2009) (internal quotation
marks and citations omitted), the Court is satisfied that the affidavit of Plaintiffs’
counsel fulfills these requirements.
At bottom, the Sterling Heights Defendants’ motion evidently rests on the
premise that the lack of involvement of the Sterling Heights officers in the raid of
Plaintiffs’ home is so cut-and-dried that the dismissal of the claims against these
38
officers is inevitable. And, to be sure, the present record indicates that certain of
the Sterling Heights officers named as defendants were civilian dispatchers who
were not even at the scene of the raid, so that there is little, if any, likelihood that
these individuals were involved with or participated in any unlawful activity
during the course of the raid. Yet, the Sterling Heights Defendants have identified
no rule or other authority that would permit the Court to determine as a matter of
law, at the outset of this suit and before the parties have conducted any discovery,
that Plaintiffs will be unable to turn up any factual support for certain of their
allegations, or that the statements made in the Sterling Heights officers’ affidavits
will not be contradicted or otherwise called into question through any further
discovery efforts. Neither have the Sterling Heights Defendants identified any
legal basis upon which the Court could determine at this juncture whether factual
assertions in an affidavit are inherently credible and unlikely to be contradicted, or
whether they warrant further exploration in discovery.18 Rather, Rule 56(d)
provides an avenue through which a party can explain why it cannot yet justify its
18
To be sure, the Sterling Heights Defendants note in their summary judgment briefing
that under Fed. R. Civ. P. 11(b)(3), a party’s factual contentions must either “have evidentiary
support” or be likely to have such support “after a reasonable opportunity for further
investigation or discovery,” and they suggest that Plaintiffs’ continued pursuit of their claims
against some or all of the Sterling Heights officers might run afoul of this Rule 11 obligation.
The Court need not address this question at this juncture, however, in light of the absence of any
indication that the issue of possible Rule 11 violations or sanctions has been properly presented
for the Court’s resolution.
39
opposition to a summary judgment motion and request an opportunity to pursue
discovery that may unearth evidentiary support for its position, and the Court finds
that Plaintiffs have made a sufficient showing to warrant relief under this
provision.19
Before leaving this matter, however, it is important to emphasize that if
discovery fails to disclose admissible evidence in support of Plaintiffs’ § 1983
claims against the Sterling Heights officers — or, for that matter, any other claim
asserted by Plaintiffs — the Court would expect Plaintiffs to voluntarily dismiss
any such unsupported claims. Indeed, in their response to the Sterling Heights
Defendants’ motion, Plaintiffs suggested that they would consider the dismissal of
their claims against Defendants Tsouroullius, Hall, Dupre, and Kaufman, provided
that the statute of limitations for these claims would be deemed tolled in the event
that Plaintiffs were to turn up information in discovery that would provide a basis
19
The Court notes that through their present motion, the Sterling Heights Defendants also
seek the dismissal of (i) the state-law claims asserted by Plaintiffs against the individual Sterling
Heights officers, and (ii) the federal § 1983 claim asserted against the Defendant City of Sterling
Heights. Each of these requests, however, is predicated on the assumption that the Court would
grant summary judgment in favor of the individual Sterling Heights officers on the § 1983 claims
asserted against these individuals. (See Sterling Heights Defendants’ Motion, Br. in Support at
13-15.) In light of the Court’s decision not to award summary judgment on these claims, it
follows that Plaintiffs also may continue to pursue their state-law claims against the Sterling
Heights Defendants and their § 1983 claim against the Defendant municipality.
40
for imposing liability on one or more of these officers.20 As they proceed through
discovery, Plaintiffs should be mindful of the continuing obligation imposed under
Fed. R. Civ. P. 11 to reevaluate their claims and dismiss those for which discovery
fails to provide evidentiary support. See B & H Medical, L.L.C. v. ABP
Administration, Inc., 354 F. Supp.2d 746, 748-49 (E.D. Mich. 2005), aff’d, 526
F.3d 257 (6th Cir. 2008).
IV. CONCLUSION
For the reasons set forth above,
NOW, THEREFORE, IT IS HEREBY ORDERED that the Individual
Federal Defendants’ December 2, 2014 motion for partial dismissal (docket #44)
is GRANTED IN PART, as to (i) Plaintiffs’ challenges in Count II of their first
amended complaint to the validity of the warrant authorizing the search of their
home, and (ii) the claim in Count II of a knock-and-announce violation, and is
otherwise DENIED.
20
The Sterling Heights Defendants rejected this offer in their reply in further support of
their motion, insisting that they were entitled to the unconditional dismissal with prejudice of the
claims against these four officers.
41
Next, IT IS FURTHER ORDERED that the Sterling Heights Defendants’
January 14, 2015 motion for summary judgment (docket #50) is DENIED.
s/Gerald E. Rosen
Chief Judge, United States District Court
Dated: September 28, 2015
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on September 28, 2015, by electronic and/or ordinary
mail.
s/Julie Owens
Case Manager, (313) 234-5135
42
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