Gunnels v. Kenny et al
Filing
35
OPINION and ORDER Granting Defendants' 27 MOTION for Summary Judgment and Denying Plaintiff's 25 MOTION for Leave to File Amended 1 Complaint. Signed by District Judge Gerald E. Rosen. (JOwe)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ERIC GUNNELS,
Plaintiff,
No. 15-cv-12170
vs.
Hon. Gerald E. Rosen
ROBERT KENNY, STUART
WORTHING, ROY HATCHETT,
ERIC ECKLES and JASON
PLETSCHER,
Defendants.
____________________________/
OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S MOTION FOR LEAVE TO FILE AN AMENDED
COMPLAINT
At a session of said Court, held in
the U.S. Courthouse, Detroit, Michigan
on September 30, 2016
PRESENT: Honorable Gerald E. Rosen
United States District Judge
I. INTRODUCTION
Plaintiff Eric Gunnels has brought this § 1983 action alleging “search and seizure
without probable cause” based upon a search pursuant to a judicially-obtained search
warrant of property owned by him in Clio, Michigan for suspected violations of the
Michigan Building Code on February 12, 2014. Following the close of the six-month
1
discovery period, Defendants filed the instant Motion for Summary Judgment. Plaintiff
has responded and Defendants have replied.
Having reviewed and considered the parties’ briefs, supporting documents, and
the entire record of this matter, the Court has determined that oral argument is not
necessary. Therefore, pursuant to Eastern District of Michigan Local Rule 7.1(f)(2), this
matter will be decided on the briefs. This Opinion and Order sets forth the Court’s
ruling.
PERTINENT FACTS
Plaintiff Eric Gunnels purchased property located on North Lewis Road in Clio,
Michigan in 2013. The building, which was vacant when Gunnels bought it, was
previously a hardware store, with attached living quarters. When Gunnels purchased the
property, all of the hardware implements and shelving units and racks that were in the
previous hardware store were still inside the building. [Gunnels 1/21/16 Dep., p. 19].
Gunnels intended to rent out the store-front area for another hardware store or some other
business, and live in the back area residence himself. Id. at 17. In January - February
2014, Gunnels, with the help of his father and some friends, worked on getting the
property habitable. Id. at 57.
On January 22, 2014, Gunnels found a “building inspector notification” sticker on
the door of the property with the name and phone number of the Thedford Township
building inspector, Stuart Worthing, on it, and a handwritten note from Worthing asking
2
Gunnels to contact him. Id. at 70-73. Gunnels called Worthing later that same day but
he did not answer, so Gunnels left him a voicemail message telling him he had called.
Id.
Worthing called Gunnels back early the following week. Id. at 69. According to
Gunnels, in that first phone conversation, Worthing told him that it was his
understanding that Gunnels was doing construction on his property and Worthing asked
if there was anything Gunnels needed help with or if he would like to schedule a time for
Worthing to come in and take a look at what he was doing. Id. Gunnels said he told
Worthing that he had not done any construction work that required a permit and that at
the time he was just doing “cosmetic stuff. . . patching drywall and painting.” Id.
According to Gunnels, Worthing merely responded, “Okay,” so no appointment was
made for him to come inspect the property. Id.
The following week, Worthing called Gunnels again. Id. at 75. Worthing told
Gunnels in that second conversation that he noticed a dumpster had been placed in front
of the premises. Id. Gunnels told Worthing that he was just throwing away garbage that
was inside the building. Id. Worthing again asked whether Gunnels had done any
construction to which Gunnels again replied, “no,” that he was just doing “painting and
carpeting.” Id. at 75-76 According to Gunnels, Worthing once again just said, “All
right. Thanks. That’s all I needed to know.” Id. at 75. Worthing then asked Gunnels if
he wanted Worthing to do a “walk through inspection” at that time, and Gunnels once
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again declined the offer, reiterating that he had not done any construction that required a
permit. Id. at 78.
Two weeks later, on February 12, 2014, while Gunnels was outside shoveling
snow, Stuart Worthing arrived at the premises and asked if he could do a walk through.
Id. at 79. Gunnels refused. Id. at 80. Worthing informed Gunnels that under the
building code he has the right to enter any building under construction to which Gunnels
responded, “I’d like to see where it says that.” Id. According to Gunnels, Worthing told
him that he would leave a copy of the code provisions in his mailbox at the township
offices. Id.1
Worthing then left the premises but said he would be back in 20 minutes. Id. at
82.
Approximately 20 minutes later, Worthing returned accompanied by Officer Eric
Eckles in a separate vehicle. Id. According to Gunnels, Worthing stepped out his car
and immediately demanded to search the premises. Id. Gunnels said he asked Worthing
why he wanted to search the property, to which Worthing replied “because I have
complaints that you’re doing construction without a permit.” Id. at 83. Gunnels testified
that he told Worthing once again that he was not doing any construction that required a
permit and refused to allow him to enter the premises. Id. According to Gunnels,
1
Gunnels is on the Thedford Township Board of Trustees and a member of the
Township Planning Commission, and therefore, has a mailbox in the township building.
4
Worthing’s reaction to his refusal was merely to say, “Okay, Eric, just so you know it’s
nothing personal,” and Gunnels responded “likewise, it’s nothing personal against you
either.” Id.
After this conversation, Worthing left, but Officer Eckles remained -- he parked
his car across the street and stayed there for approximately four hours. Id. at 89.
During that time, Gunnels and two of his friends laid carpet inside the house but
took a dinner break during which Gunnels went out to get a pizza and brought it back to
the house, stopping briefly to offer a slice to Officer Eckles. Id.
Gunnels said that Eckles looked uncomfortable, and when Gunnels asked him
why he was parked there, Eckles told him he was “waiting on some 911 call.” Id. at 92.
Shortly thereafter, Eckles received a text message. Id. at 92-93. Gunnels testified that he
did not see what was on the text, but that Eckles told him the message was from the chief
of police, and said “they suspect marijuana.” Id. at 94. Gunnels admitted, however, that
he did not know who was the “they” Eckles referred to but assumed it was the chief. Id.
at 95.
Gunnels returned to his building and, a short while later, Police Chief Robert
Kenny arrived in his personal vehicle, with Stuart Worthing following in his own car. Id.
at 98-99. Worthing parked across the street behind Officer Eckles and Chief Kenny
parked at the edge of Gunnels’ driveway. Id. Worthing then left his car and joined Chief
Eckles in his vehicle where the two men remained for approximately 45 minutes. Id.
5
When Gunnels saw the car parked at the edge of his driveway, Gunnels exited his
building and Kenny exited his vehicle and approached Gunnels. Id. at 100. According
to Gunnels, Kenney said to Gunnels, “Eric, I really think this is bullshit. Why didn’t you
just let him search?” to which Gunnels replied, “I think someone in your department
needs to have their ego put in check.” Id. Gunnels said that Kenny then told him they
were in the process of obtaining a search warrant, and walked back to his car. Id.
Gunnels returned back inside of his building. Id. A short while later, Officers Jason
Pletscher and Roy Hatchett arrived with the search warrant and gave Gunnels a copy of
it. Id. at 101. The officers then entered the building and Gunnels followed. Id. Chief
Kenny also entered the premises. Id. Gunnels’ father and two of his friends were in the
building with Gunnels at the time. Id.
According to Gunnels, the officers were in the building looking around for about
an hour. Id. at 102. During this search, Chief Kenny observed that the two inner doors
separating the business portion of the building from the residence had been screwed shut.
Id. Gunnels testified that he had screwed the doors shut when he realized the officers
were getting a search warrant. Id. at 103. He testified,
I didn’t know how these things worked, so I just -- that was my way of
locking that door in -- you know, in case they had to pull a permit or a
search warrant for a separate building because I didn’t know if it was -they were pulling a search warrant [only[ for the commercial aspect of the
building where I was doing the carpeting and the painting or whether they
wanted to search my entire residence. I considered them to be two separate
things. . . .
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Id. at 102-104.
Chief Kenny got a drill and removed the screws. Id.
Once the doors were opened, officers observed open wall cavities, and plumbing
and electrical fixtures removed. [Worthing Dep., p. 40]. A jack was also observed
holding up a structural beam. Id.2 All of these constituted building code violations. Id.
at 41; see also Defendants’ Ex. 5, 2009 Michigan Building Code R105.1. Although the
officers could have issued Gunnels a citation, they did not. [Gunnels Dep., p. 107.]
However, two days later a “stop work order” was placed on the building, directing that
work on the building be ceased and revoking the certificate of occupancy. Id.
Gunnels testified that he never attempted to respond to the building inspector
about the stop work order. Id. Instead, he spoke with a supervisor who told him that, to
get the stop work order lifted, he would have to pull a building permit and get a
structural engineer’s approval. Id. at 108.
Gunnels did not pull a permit or take any further action with the township or the
building inspector. Instead, on June 16, 2015, he filed this § 1983 lawsuit claiming that
the search of his property and the resulting stop work order amounted to an unlawful
search and seizure. On February 29, 2016, after the close of discovery, Defendants filed
this Motion for Summary Judgment.
2
A jar of marijuana was also found in the premises. [Gunnels Dep., p. 95-98.]
However, Gunnels has a medical marijuana permit, and marijuana was neither the basis
for nor the object of the search.
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II. DISCUSSION
A.
APPLICABLE STANDARDS
Summary judgment is proper if the moving party “shows that there is no genuine
dispute 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 nonmoving party. Pack v. Damon Corp., 434 F.3d 810, 813
(6th Cir. 2006). Yet, the nonmoving party may not rely on mere allegations or denials,
but must “cit[e] to particular parts of materials in the record” as establishing that one or
more material facts are “genuinely disputed.” Fed. R. Civ. P. 56(c)(1). Moreover, any
supporting or opposing affidavits or declarations “must be made on personal knowledge,
set out facts that would be admissible in evidence, and show that the affiant or declarant
is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). Finally, “the mere
existence of a scintilla of evidence that supports the nonmoving party’s claims is
insufficient to defeat summary judgment.” Pack, 434 F.3d at 814 (alteration, internal
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quotation marks, and citation omitted). The Court will apply the foregoing standards in
deciding Defendants’ motion for summary judgment in this case.
B.
THE SEARCH OF PLAINTIFF’S PREMISES WAS CONDUCTED
PURSUANT TO A VALID SEARCH WARRANT
Plaintiff claims in his one-count Complaint that his Fourth Amendment rights
were violated when the police officers searched his premises and a “stop work order”
issued for his property. The sole basis for his claim is that the search warrant issued for
the search of the premises was invalid because it was issued pursuant to an affidavit that
contained a false statement that Plaintiff was the owner of a medical marijuana
dispensary. See Affidavit and Application for Search Warrant, Defendants’ Ex. 3, ¶ 8
[“[Y]our affiant has known since 2012 that Eric Gunnels was the owner of a medical
marijuana dispensary known as the Coinsurer of Cannabis, located at the corner of Dort
Highway and Frances Rd. in Thedford Township.”] At his deposition Plaintiff denied
ever having any ownership interest in the Coinsurer of Cannabis marijuana dispensary,
although he admitted he is friends with the people who do own the facility and that prior
to February 2012 he “frequented there” at least once a week to “socialize.” [Gunnels
Dep., pp. 96-97.]
The Fourth Amendment provides that “no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.” U.S. Const., amend. IV. Where there is
a search warrant issued by a neutral and detached magistrate or judge, indicating that
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there is probable cause for the search, officers who rely on that warrant and its finding of
probable cause are generally insulated from liability pursuant to § 1983 for Fourth
Amendment violations. See Hale v. Kart, 396 F.3d 721, 725 (6th Cir.2005). However,
“an officer cannot rely on the judicial determination of probable cause if that officer
knowingly makes false statements and omissions” necessary to the finding of probable
cause. See Yancey v. Carroll County, Ky., 876 F.2d 1238, 1243 (6th Cir.1989). An
officer who obtains a search warrant by making materially false statements in the
affidavit on which the warrant is based may be liable to a plaintiff injured by the warrant
if plaintiff demonstrates that (1) the officer made the false statements knowingly and
intentionally or with a reckless disregard for the truth and (2) setting aside the false
statements, the remainder of the affidavit is insufficient to establish probable cause. Hill
v. McIntyre, 884 F.2d 271, 275 (6th Cir.1989) (citing Franks v. Delaware, 438 U.S. 154,
98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)) (emphasis added); Sykes v. Anderson, 625 F.3d
294, 305 (6th Cir. 2010) (“A warrant is invalid if the officer knowingly and deliberately,
or with a reckless disregard for the truth, made false statements or omissions in a warrant
application and such statements or omissions were... necessary to the finding of probable
cause.” (internal citations and punctuation omitted)). See also, Young v. Owens, 577 F.
App’x 410, 416 (6th Cir. 2014) (holding that to overcome an officer’s qualified
immunity from § 1983 liability “a plaintiff must establish (1) a substantial showing that
the defendant stated a deliberate falsehood or showed reckless disregard for the truth and
10
(2) that the allegedly false or omitted information was material to the finding of probable
cause”); Ghaster v. City of Rocky River, 913 F. Supp. 2d 443, 464-5 (N.D. Ohio 2012).
Plaintiff here cannot make the requisite showing.
Accepting as true, as the Court must, Plaintiff’s denial of owning the Coinsurer of
Cannabis, Plaintiff cannot make a “substantial showing” that Officer Pletscher, who
swore out the search warrant, stated a “deliberate” falsehood since it was not
unreasonable for him to believe that Gunnels had an interest in the marijuana dispensary
when he admitted that he was good friends with the owner and frequented the marijuana
dispensary at least once a week to socialize there.
More importantly, however, even if the Court were to determine that the statement
was a deliberate falsehood, Plaintiff cannot show that the allegedly false statement was
necessary to the finding of probable cause. Indeed, the ownership of a marijuana
dispensary is wholly immaterial to the probable cause determination. The more than
page-and-a-half long affidavit more than amply establishes probable cause to search
Plaintiff’s property for violations of the Michigan Building Code even when the
allegedly false statement in Paragraph 8 is extracted. Of relevance here is that the
affidavit also states the following:
5.
That on 02/12/2014, your affiant was dispatched [to] 13007 N.
Lewis Rd., in Thedford Township, Genesee County, Michigan, to
meet with Mr. Stuart Worthing, Thedford Township Building
Inspector. Mr. Stuart told me that on or about January 22, 2014, he
was called to 14007 N. Lewis Rd. to investigate a report that the
buildings located on the premises were being remodeled or
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otherwise altered without a township permit. Mr. Stuart said that he
saw construction materials on the premises and that on that day he
left a Stop Work Order at the site. Further he said the owner, Eric
Gunnels, called him on January 28, 2014, and told Mr. Stuart there
was only minor painting and carpeting being done on the premises.
6.
That on 02/12/2014, Mr. Stuart Worthing, Thedford Township
Building Inspector, told your affiant that he stopped at 14007 N.
Lewis Rd. on January 31, 2014, in response to a second call. Mr.
Worthing said that on this occasion he saw construction materials,
to-wit: drywall, 2X4 studs, and plywood on the premises.
7.
That on 02/12/2014, Mr. Stuart Worthing, Thedford Township
Building Inspector, told your affiant that he stopped at 14007 N.
Lewis Rd. on February 12, 2014, at approximately 4:00 PM. Mr
Worthing said that he encountered the owner, Eric Gunnels, on the
property. Mr. Worthing said he asked Mr. Gunnels if he could walk
through the premises to inspect the work, and Mr. Gunnels refused
to let Mr. Worthing enter the building. Mr. Gunnels told Mr.
Worthing that he would not allow him to inspect the property. Mr.
Worthing said that he called Thedford Township Police Chief Bob
Kenny to request assistance because of the interference with his
duties under Section 104.6, Right of Entry, of the 2009 Michigan
Building Code.
***
WHEREFORE, your affiant states that based on the foregoing information
he/she has reasonable and probable cause to belief and does believe that the
above described premises. . . contain evidence of violations of the
Michigan Building Code or criminal conduct, and therefore prays that the
Court will issue a warrant directing the Thedford Township Police or any
peace office[r] of the State of Michigan to search the place(s) described in
paragraph 4, for the above mentioned items, including but not limited to:
construction materials, to-wit: drywall, 2X4 studs, plywood, tools and
hardware supplies on the premises; also papers and effects showing
occupancy, ownership, dominion or control of said premises including but
not limited to rent and property receipts, keys, bills, and cancelled mail
envelopes and records of remodeling or construction work. . . found in the
described location(s); commanding him to search therefore and seize and
safely keep and test and analyze, and to make return and tabulation thereof
according to law.
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[Defendants’ Ex. 3.]
Based on the affidavit, the district judge was “satisfied that there is reasonable and
probable cause to believe that evidence [establishing] violations of the 2009 Michigan
Building code or criminal conduct, more specifically, remodeling or otherwise altering a
building without a permit and obstructing the Thedford Township Building Inspection in
the lawful discharge of his duties. . . [would be] found [at the premises located] at 14007
N. Lewis Rd.,” and hence, authorized the search. [See Ex. 4.] There is simply no
evidence of record showing that Plaintiff’s alleged ownership of a marijuana dispensary
played any role in the issuance of the warrant.
For the foregoing reasons, the Court concludes that the warrant, pursuant to which
Plaintiff’s property was searched, was valid. Therefore, Plaintiff cannot make out a
cognizable claim for violation of his Fourth Amendment rights based on the search of his
property.
C.
PLAINTIFF WAS NOT “SEIZED” WHILE THE WARRANT WAS BEING
OBTAINED
Plaintiff also alleges in his Complaint that Defendants seized “his person” during
the time the search warrant was being obtained. A person is seized within the meaning
of the Fourth Amendment “where an officer applies physical force to restrain [him] or a
show of authority... has in some way restrained the liberty of [the] citizen. If physical
force or submission to the assertion of authority is absent, no seizure occurs.” United
States v. Ray, 597 F. App’x 832, 837 (6th Cir. 2013) (citations omitted).
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Similarly, where the plaintiff is free to flee, there is no seizure. See e.g., Bennett
v. City of Eastpointe, 410 F.3d 810, 833 (6th Cir. 2005) (where suspect fled instead of
submitting to show of authority there is no seizure).
In O’Malley v. City of Flint, 652 F.3d 662 (6th Cir. 2011), the plaintiff had parked
his vehicle in his driveway and was walking toward his home when the police chief
pulled his vehicle directly behind plaintiff’s car, blocking the vehicle, and the two talked.
The court held that no Fourth Amendment seizure occurred because the plaintiff was not
only free to leave his vehicle, he already had left it, and the court found that the brief
interaction between the two men was consensual, and hence, not a seizure. Id. at 699.
Here, Plaintiff acknowledged that he was not only free to leave his premises but
he actually did leave -- he went out to get some pizza. Moreover, as in O’Malley,
Plaintiff’s interactions with Officer Eckles when he was returning home with his pizza
and with Chief Kenny were brief and after each interaction, he went on his way. There is
simply no evidence that Plaintiff was restrained in any way. Therefore, no seizure of his
person occurred.
For the foregoing reasons, the Court concludes that Plaintiff has failed to state any
Section 1983 claim upon which relief may be granted. Defendants’ Motion for Summary
Judgment, therefore, is GRANTED.
***
Following Defendants’ filing of their Motion for Summary Judgment, and after all
14
briefing was completed, Plaintiff filed a Motion for Leave to File an Amended
Complaint to sue Defendant Police Chief Kenny in his official, as well as his individual
capacity, so as to enable him to add additional claims for injunctive/declaratory relief and
damages for deprivation of civil rights caused by the Township’s policy, custom, practice
or procedure pursuant to Monell.3 The Court will deny this motion because it is untimely
and prejudicial to Defendants, given that the discovery period has long closed and, in any
event, Plaintiff’s proposed amendment of his Complaint would be futile.
In City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986), the Supreme Court
held that a municipal entity cannot be held liable under a Monell theory where there is no
underlying constitutional violation by the individual officer. The Court held:
If a plaintiff has suffered no constitutional violation at the hands of the
individual police officer, the fact that the department regulations might
have authorized use of unconstitutionally excessive force is quite beside the
point.
Id. See also Claybrook v. Birchwell, 199 F.3d 350, 361 (6th Cir. 2000); Ross v. Duggan,
492 F.3d 575, 589-90 (6th Cir. 2004) (holding, as a matter of law, that because Section
1983 plaintiffs could not prove that they suffered any constitutional tort, no liability
could be imposed upon the municipality or the city and county policymakers based on
allegedly unconstitutional policies, practices and procedures); S.P. v. City of Takoma
Park, 134 F.3d 260, 272 (4th Cir. 1998) (assuming training of officers was
3
Monell v. New York City Dep’t of Social Services, 436 U.S. 658 (1985).
15
unconstitutional, city could not be held liable where no constitutional violation by
officers occurred).
Here, the Court has already concluded that Plaintiff has not established that he
suffered any constitutional tort, therefore, as a matter of law no liability can be imposed
upon the Township of the Township policymakers based on allegedly unconstitutional
policies, practices and procedures. Allowing Plaintiff to file an amended complaint to
add such claims would, therefore, be futile. Therefore, Plaintiff’s Motion for Leave to
File an Amended Complaint will be DENIED.
CONCLUSION
For all of the reasons stated above in this Opinion and Order,
IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment
[Dkt. # 20] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to File an
Amended Complaint [Dkt. # 25] is DENIED.
Accordingly,
IT IS FURTHER ORDERED that this case be DISMISSED, in its entirety, WITH
PREJUDICE.
Let Judgment be entered accordingly.
s/Gerald E. Rosen
United States District Judge
Dated: September 30, 2016
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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on September 30, 2016, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager, (313) 234-5135
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