Bullman v. City of Detroit et al

Filing 66

ORDER denying 51 Motion to Amend/Correct; granting in part and denying in part 54 Motion for Summary Judgment; denying 59 Motion for Leave to File. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ALONZO BULLMAN, ET AL.,
Case No. 16-12581
Plaintiffs,
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

v.
CITY OF DETROIT, ET AL.,

U.S. MAGISTRATE JUDGE
ELIZABETH A. STAFFORD

Defendants.
/

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
JOINT MOTION FOR SUMMARY JUDGMENT [54]; DENYING PLAINTIFFS’ MOTION
FOR LEAVE TO FILE SECOND AMENDED COMPLAINT [59]; OVERRULING
PLAINTIFFS’ OBJECTION TO MAGISTRATE JUDGE’S ORDER ON MOTION TO
COMPEL [50]; AND DENYING PLAINTIFFS’ MOTION TO AMEND/CORRECT
SCHEDULING ORDER [51]
Plaintiffs Alonzo Bullman, Joel Castro, and Nicole Motyka bring this civil
rights action under 42 U.S.C. § 1983 against the City of Detroit and several Detroit
police officers. This lawsuit arises from a series of events that occurred at Joel
Castro’s and Nicole Motyka’s home on January 26 and 27, 2016. Plaintiffs claim
that Defendants violated their civil rights when the police officers executed a
forced entry into Joel Castro’s and Nicole Motyka’s home and killed two of their
dogs, and when two of the officers conducted a warrantless search and seizure of
Alonzo Bullman and his car without any justification.
This Opinion and Order resolves several pending motions, all of which have
been fully briefed. In February 2017, Plaintiffs filed a Motion to Compel [27],
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seeking the disclosure of the identities of the anonymous complainant who first
tipped off the police about narcotics activity at Joel Castro’s home, and SOI1
#3030, the confidential informant who attempted to purchase marijuana from Joel
Castro. The Court referred the motion to the Magistrate Judge, who, in May 2017,
denied the motion without prejudice [47]. Plaintiffs filed an Objection to the
Magistrate Judge’s Order [50] on May 16, 2017. The next day, Plaintiffs filed a
Motion to Amend Scheduling Order to Extend Discovery Cutoff by 45 Days [51].
Defendants filed a Motion for Summary Judgment [54] on June 16, 2017.
Plaintiffs filed a Motion for Leave to File a Second Amended Complaint [59] on
July 20, 2017. A hearing on the pending motions took place on January 23, 2018.
For the reasons stated on the record, and as discussed in depth below, the
Court GRANTS IN PART and DENIES IN PART Defendants’ Motion for
Summary Judgment as follows:
 The Motion is DENIED as to Joel Castro’s Fourth Amendment illegal
seizure claim for the killing of his dog, Junior, against Sergeant Matthew
Bray, and is otherwise GRANTED.
 The Motion is DENIED as to Nicole Motyka’s Fourth Amendment illegal
seizure claim for the killing of her dog, Blanca, against Sergeant Matthew
Bray, and is otherwise GRANTED.
 The Motion is DENIED as to Alonzo Bullman’s Fourth Amendment claim
for the illegal search of his car and seizure of his person against Sergeant
Matthew Bray and Officer Nico Hurd, and is otherwise GRANTED.
 The Motion is GRANTED as to Plaintiffs’ federal and state law claims
against the City of Detroit.
1

SOI stands for source of information.

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 The Motion is GRANTED as to Plaintiffs’ claims for intentional infliction
of emotional distress.
 The Motion is GRANTED as to Plaintiffs’ claims for conversion of the
seized marijuana plants, the cash, and the dogs.
The Court DENIES Plaintiffs’ Motion for Leave to File Second Amended
Complaint [59], OVERRULES Plaintiffs’ Objection to the Magistrate Judge’s
Order on the Motion to Compel [50], and DENIES Plaintiffs’ Motion to
Amend/Correct Scheduling Order [51].
FACTUAL BACKGROUND
I.

The anonymous tip, the confidential informant’s attempted
purchase, and Officer Fox’s surveillance
On January 26, 2016, someone called the Detroit Police Department to

report that narcotics were being sold out of the two-unit residence located at 5437
and 5441 Springwells Street,2 where Joel Castro and Nicole Motyka lived.
Officers Johnny Fox and Nico Hurd attempted to use an undercover
informant, SOI #3030, to engage in a controlled buy with the alleged seller at the
Springwells residence. (Dkt. 7-2). Officer Hurd had worked with SOI #3030
“hundreds of times” over an approximately two-and-a-half year period. (Defs.’ Ex.
C at 9:9-16). The officers gave cash to the SOI, who then proceeded to 5437
Springwells and knocked on the front door. (Dkt. 63-1 at 42:12-15). Officer Fox

2

The search warrant affidavit describes the house as “a 2 story 2 family dwelling.” (Dkt.
54-4).

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saw the SOI “speaking with who [he] believed to be the seller,” a 5’9”, 150 pound
white man between the ages of 18 and 22 years old. Id. at 44-45. Although this
person refused to sell anything to SOI #3030, the SOI allegedly told Fox that the
person was carrying a large sandwich bag of marijuana when he opened the door.
Hurd also “observed somebody at the door holding bags of marijuana.” (Defs.’ Ex
C at 20:13-16, 26:1-3). Both Fox and Hurd stated that drug dealers commonly
answer the door carrying bags of narcotics. See id. at 13:15-21; Dkt. 63-1 at 46:1325. Fox also said that he was “aware through training and experience that narcotics
sellers often will not sell to people they do not know in order to avoid detection by
law enforcement.” (Dkt. 30-2, Page ID 440-41).
Officer Fox continued surveilling the Springwells house. In the span of 45
minutes, Fox saw two white men arrive, separately and independent of each other,
at the home. After bringing each individual inside 5437 Springwells, the alleged
seller left, entered 5441 Springwells for several minutes, then walked back and
reentered 5437 Springwells. The two men left approximately 30 seconds to one
minute after the seller returned. Based on his experience and observations, Office
Fox believed that he had witnessed narcotics trafficking.
At the time of the investigation, Fox did not know that Joel Castro is
licensed by the Department of Licensing and Regulatory Affairs to serve as a
licensed medical marijuana caregiver. Michigan law allows Joel Castro to possess

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up to 36 marijuana plants for the use of himself and registered qualifying patients.
M.C.L. § 333.26424(b)(2). Joel Castro used the facility at 5441 Springwells to
grow his medical marijuana plants.
Fox and Hurd later determined that the seller was Chris Bullman,3 who is
Joel Castro’s friend and Alonzo Bullman’s cousin. (Dkt. 63-1 at 45:3-11; Defs.’ Ex
C at 21:3-7, 71-72). Joel Castro, however, maintains that Chris Bullman wasn’t at
his home on January 26, 2016. (Dkt. 63-3).4 Joel Castro remembers that someone
he didn’t know knocked on his door that day. Joel Castro did not sell any drugs to
that person because he was not his patient. (Dkt. 33-1, Pg. ID 453). Joel Castro
adamantly denies that he was holding a bag of marijuana when he answered the
door, as such behavior would be “foolish and highly dangerous.” Id. He said that
the only marijuana on the first floor at the time was his personal supply, which
could not be seen from the front door.
II.

The execution of the search warrant
Officer Fox obtained a search warrant on January 27, 2016. At mid-

afternoon that day, Fox and the other officers went to the Springwells residence. At
that time, Joel Castro and Chris Bullman were playing video games in the living
3

Chris Bullman is not a party to this lawsuit. He was not deposed by either party.

4

This is an unsworn, unsigned affidavit, and is not in compliance with the Federal Rules
of Civil Procedure. See Nassif Ins. Agency, Inc. v. Civic Prop. and Cas. Co., 2005 WL
712578, at *3 (6th Cir. Mar. 30, 2005).

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room. One of Joel Castro’s dogs, Yayo, was with them. The other two dogs, Junior
and Blanca, were confined in the kitchen, which is separated from the living room
by what appears to be an island, a book shelf, and an approximately four foot tall
wood board. (Dkt. 7-1). Access to the kitchen is blocked.
What happened next is contested by the parties. Joel Castro said that he
heard police officers on his front porch. (Defs.’ Ex. M, 27:25-28:1). The officers
said “Detroit Police” and then “no more than 3 seconds later, [Castro’s] door was
being kicked in.” Id. at 28:3-4. “As [he] heard the first few slams against the door,
[Castro] grabbed Yayo by his collar” and threw him inside the bedroom, which
was about four feet away. Id. at 28:9-10. Joel Castro then “went to [his] front door
and yelled at the police officer . . . that [he] was going to open it.” Id. at 28:11-13.
He kicked the security board down from the front door, at which point the police
entered the house. Joel Castro and Chris Bullman immediately complied with the
officers’ orders to get on the ground.
Blanca and Junior, were confined to the kitchen when the police entered the
home. Plaintiffs assert that the dogs were scared and “cowering in the corner.”
(Compl. ¶30). The officers claim differently. Officer Hurd testified that the dogs
were “barking, jumping up and down, [and] showing teeth.” (Defs.’ Ex. C at 35:6).
Officer Samuel Galloway described the dogs as “being aggressive.” (Defs.’ Ex. X
at 10:8).

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While on the ground, Joel Castro asked if he could put Junior and Blanca
away. Sergeant Matthew Bray ignored this request and fired his shotgun six times,
killing the two dogs. The officers subsequently seized Joel Castro’s 26 marijuana
plants and $4,683.00 in cash.
III.

The police officers stop Alonzo Bullman

Alonzo Bullman drove to Joel Castro’s home shortly before 1 PM. When he
arrived, he saw “a bunch of police officers . . . in the yard [and] on the porch.”
(Defs.’ Ex. AA at 14:10-19). He decided to circle the block a few times to call
Chris Bullman5 and try to figure out what was happening. Id. at 16:18-20. Sergeant
Bray and Officer Hurd, both dressed in full SWAT gear, stopped Alonzo Bullman
after the third drive-by. The officers ordered Alonzo Bullman “to get the F out the
car” and told him that his car smelled of marijuana. Id. at 18:11-16. They searched
the vehicle, but found no contraband or weapons. Id. at 29:9-10. After Alonzo
Bullman asked why this was happening, one of the officers “got aggravated and
told [him] if [Bullman] don’t talk . . . [the officer’s] going to take [Bullman] in the
house and give [him] a Detroit ass whipping and send [him] on [his] way.” Id. at
21:11-13. Alonzo Bullman refused to speak to the officers and one of them
threatened him a second time. Id. at 21:15-16. Ultimately, the officers released
Alonzo Bullman and directed him to leave the premises. Id. at 29:11-12.
5

Again, Chris Bullman is Alonzo Bullman’s cousin. Chris was inside Joel Castro’s home
on January 27, 2016, when the police executed the search warrant.

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THE PARTIES’ MOTIONS
I.

Defendants’ Motion for Summary Judgment
LEGAL STANDARD
Summary judgment is appropriate “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). Defendants bear
the burden of establishing that there are no genuine issues of material fact, which
may be accomplished by demonstrating that Plaintiffs lack evidence to support an
essential element of their case. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Plaintiffs cannot rest on the pleadings and must show more than “some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd.,
475 U.S. at 586-87. Plaintiffs must “go beyond the pleadings and by . . . affidavits,
or by the ‘depositions, answers to interrogatories, and admissions on file,’
designate ‘specific facts showing that there is a genuine issue for trial.’” Celotex
Corp., 477 U.S. at 324 (quoting Rule 56(e)); see also United States v. WRW Corp.,
986 F.2d 138, 143 (6th Cir. 1993).

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ANALYSIS
A. Federal Claims
Plaintiffs purport to bring claims under the Fourth and Fourteenth
Amendments. However, because Plaintiffs have failed to brief or address the
Fourteenth Amendment due process arguments, the Court deems these claims
abandoned. See Conner v. Hardee’s Food Sys., Inc., 65 Fed. Appx. 19, 24-25 (6th
Cir. 2003); Anglers of the Au Sable v. United States Forest Svc., 565 F.Supp.2d
812, 839 (E.D. Mich. 2008) (“It is well settled that abandonment may occur where
a party asserts a claim in its complaint, but then fails to address the issues in
response to [a] motion for summary judgment.”).
To prevail on a claim under 42 U.S.C. § 1983, Plaintiffs “must establish that
a person acting under color of state law deprived [them] of a right secured by the
Constitution or laws of the United States.” Waters v. City of Morristown, TN, 242
F.3d 353, 358-59 (6th Cir. 2001). At the summary judgment stage, the police
officer defendants are entitled to qualified immunity unless Plaintiffs present
sufficient evidence to create a genuine dispute of material fact as to whether (1) the
defendants violated a constitutional right (2) that was clearly established such that
a reasonable person in defendants’ position would know that the conduct
complained of was unlawful. Saucier v. Katz, 533 U.S. 194, 201-02 (2001). The
officers are entitled to qualified immunity claim if Plaintiffs fail to meet either

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requirement. Pray v. City of Sandusky, 49 F.3d 1154, 1157 (6th Cir. 1995) (citing
Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
1. Joel Castro and Nicole Motyka
i.

The search of 5437 Springwells

Plaintiffs submit that the unlawful search of Joel Castro’s home occurred
because of intentional misrepresentations in the search warrant affidavit; either
Officer Fox lied about what the SOI said, and/or SOI #3030 lied about seeing the
seller holding marijuana in his hand when he answered the door.
In his warrant affidavit, Officer Fox swore that after receiving a complaint
that drugs were being sold at the Springwells residence, he and Officer Hurd met
with SOI #3030, with whom they’d previously worked. The SOI unsuccessfully
attempted to make a controlled buy. The SOI told the officers that the seller
refused to sell to him because the seller didn’t know him, and that the seller was
holding a bag of marijuana when he opened the door. During Officer Fox’s
surveillance, he saw two white men, separate and independent of each other, enter
5437 Springwells. The seller would then walk out of 5437 Springwells, enter 5441
Springwells, and return to 5437 Springwells.
Plaintiffs vehemently dispute the warrant affidavit. Joel Castro states that
there were no white men in his house on January 26. He also maintains that he

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would never carry a bag of marijuana while answering his front door, as “[s]uch
action would be foolish and highly dangerous.” (Dkt. 33-1).
The Fourth Amendment guarantees “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures” and that “no warrants shall issue but upon probable cause.” U.S. Const.
Amend. IV. The information presented in support of a search warrant must be
“believed or appropriately accepted by the affiant as true.” Franks v. Delaware,
438 U.S. 154, 165 (1978). In the criminal context, a warrant must be voided, and
evidence obtained in a search conducted pursuant to that warrant must be
suppressed, if (1) “a false statement knowingly and intentionally, or with reckless
disregard for the truth, was included by the affiant in the warrant affidavit,” and (2)
“with the affidavit’s false material set to one side, the affidavit’s remaining content
is insufficient to establish probable cause.” Id. at 155-56.
To overcome an officer’s entitlement to qualified immunity, § 1983
plaintiffs must first make “a substantial showing that the defendant stated a
deliberate falsehood or showed reckless disregard for the truth.” Vakilian v. Shaw,
335 F.3d 509, 517 (6th Cir. 2003). “An officer’s statement . . . is ‘deliberately’
false’ when the officer makes the statement knowing that it is untrue.” United
States v. Ellis, 910 F.Supp. 2d 1008, 1016 (W.D. Mich. 2012) (internal citations
omitted). “Similarly, an officer displays reckless disregard for the truth when he

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‘entertains serious doubts as to the truth of his allegations’ in an affidavit.” Id. at
1016-17 (quoting United States v. Whitley, 249 F.3d 614, 621 (7th Cir. 2001)); see
also Griffin v. City of Detroit, 996 F.2d 1215, at *5 (6th Cir. 1993).
Joel Castro’s factual allegations largely corroborate Fox’s warrant affidavit.
The parties agree that the SOI attempted to buy marijuana from someone at the
Springwells residence on January 26, but was unable to do so because the seller
didn’t know the SOI. See Dkt. 30-2; Dkt. 33-1. Fox’s warrant affidavit indicates
that a person at the Springwells residence would retrieve marijuana from 5441
Springwells, and Joel Castro admits that this is where the marijuana is grown. Id.
The warrant affidavit also states that Joel Castro sold marijuana to two men on
January 26, and Joel Castro admits that he had two marijuana customers. Id. Joel
Castro also explains in his affidavit,
When dispensing to my patients . . . [t]hey would [ ] come to my front door.
I would greet them at the door and we would exchange payment for their
marijuana . . . Before they arrived, I would have their prescription available
in my residence.
(Dkt. 33-1).
This seems to suggest that Joel Castro would, in fact, come to the door with
marijuana in his hand, and at the very least, that he kept marijuana within close
distance of the front door.
Although there are some minor differences between Plaintiffs’ and
Defendants’ stories, Plaintiff have not made “a substantial showing that [Fox]
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stated a deliberate falsehood or showed reckless disregard for the truth.” Valkilian,
335 F.3d at 517. Plaintiffs offer no evidence in support of their claims that the
officers and/or the SOI lied. And, although Plaintiffs repeatedly emphasize that it
would be ludicrous for a person to answer the door holding a bag of marijuana,
Fox and Hurd both testified that in their experiences, this is common practice
among drug dealers. (Defs.’ Ex. C at 13:15-21; Dkt. 63-1 at 46:13-25). Moreover,
Joel Castro himself admitted that when he sold marijuana to his patients, he would
have the prescription available and ready, and the exchange took place at or near
the front door. (Dkt. 33-1). Again, as stated above, this undermines Plaintiffs’
position.
ii.

The killing of the dogs

a. Personal material involvement
It is undisputed that Officer Bray was the only person who shot Blanca and
Junior. Plaintiffs have not shown that the other officers “did more than play a
passive role in the alleged violation or showed mere tacit approval of the events.”
Salehpour v. University of Tennessee, 159 F.3d 199, 206 (6th Cir. 1998) (citing
Leach v. Shelby County Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989)). Because
Officers Galloway, Mitchell, Muhammad, Hurd, Severy, and Fox did not fire their
weapons or harm the dogs, they did not seize the dogs. See Adams v. City of
Auburn Hills, 336 F.3d 515, 519 (6th Cir. 2003). The § 1983 claims for illegal

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seizure of the dogs against Officers Galloway, Mitchell, Muhammad, Hurd,
Severy, and Fox are dismissed.
b. Legitimate possessory interest
Defendants argue that Nicole Motyka lacked a constitutionally protected
property interest in Blanca by virtue of the fact that the dog was contraband, i.e.
not properly licensed. Therefore, according to Defendants, Blanca was not
protected by the Fourth Amendment.
Defendants’ argument is misplaced for several reasons. First, dogs are
lawful property, and the lack of a license doesn’t deprive a dog of its legitimacy.
Defendants present no binding authority that holds otherwise.
The Sixth Circuit recently explained that “[m]arijuana is contraband because
its possession and production is prohibited under federal law and the criminal laws
of most states.” United States v. Church, 823 F.3d 351, 355 (6th Cir. 2016) (citing
Black’s Law Dictionary 365 (9th ed. 2009) (defining contraband as “[g]oods that
are unlawful to import, export, produce, or possess.”). A dog – licensed or not –
does not fit this definition. Furthermore, although unlicensed property may be
subject to seizure, such seizure must be reasonable because the owner retains a
Fourth Amendment interest in the property. See Hudson v. Michigan, 547 U.S.
586, 602 (2006) (“[E]xcessive or unnecessary destruction of property . . . may

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violate the Fourth Amendment.”) (quoting United States v. Ramirez, 523 U.S. 65,
71 (1998)).
Furthermore, in Michigan, “dogs have value, and are the property of the
owner.” Ten Hopen v. Walker, 96 Mich. 236, 240 (1893). Nowhere in Michigan’s
Dog Law is there language that 1) deprives a dog owner of her possessory interest
in her dog simply because the dog is unlicensed, and/or 2) authorizes the killing of
a dog by virtue of the fact that it’s unlicensed.
In sum, the Court holds that Nicola Motyka retained a constitutionally
protected property interest in Blanca.
c. Imminent Threat
The Sixth Circuit recently held that a person has a right to not have her dog
unreasonable seized; such a seizure violates the Fourth Amendment; and this right
was clearly established in 2013. Brown v. Battle Creek Police Department, 844
F.3d 556, 566-67 (6th Cir. 2016). The question for the Court, therefore, is whether
the seizures of Junior and Blanca were reasonable under the Fourth Amendment.
Id. at 567.
“Reasonableness is the touchstone of any seizure under the Fourth
Amendment.” San Jose Charter of the Hells Angels Motorcycle Club v. City of San
Jose, 402 F.3d 962, 975 (9th Cir. 2005). Under the standard adopted by the Sixth
Circuit,

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[A] police officer’s use of deadly force against a dog while executing a
warrant to search a home for illegal drug activity is reasonable under the
Fourth Amendment when, given the totality of the circumstances and viewed
from the perspective of an objectively reasonable officer, the dog poses an
imminent threat to the officer’s safety.
Brown, 844 F.3d at 568.
The Court analyzes the question of whether a dog constitutes an imminent
threat “from the perspective of a reasonable officer on the scene, rather than with
the 20/20 vision of hindsight.” Id. at 567 (quoting Robinson v. Pezzat, 818 F.3d 1,
8 (D.C. Cir. 2016)). The Court recognizes that law enforcement agents are “are
regularly forced to make critical decisions” and split-second judgments in high
pressure situations. Pray, 49 F.3d at 1159.
In Brown, the police obtained a search warrant to search a house suspected
of drug activity. Brown, 844 F.3d at 561. Prior to executing the warrant, the police
learned that Vincent Jones, a dangerous criminal and known gang leader, lived at
the residence. They did not know, however, whether dogs were present in the
house until they were en route to the house, at which point they also learned that
Jones had left the residence and had been detained elsewhere by police. The
officers also learned that Plaintiff Mark Brown was in the house.
The Brown Court examined the totality of the circumstances and concluded
that the officers acted reasonably when they shot and killed the two pit bulls.
Specifically, the court noted:

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Jones’ criminal history, gang affiliations, the types of drugs he was
suspected of distributing, the fact that the officers had no time to plan for the
dogs, in addition to the officers’ unrebutted testimony that the dogs either
lunged or were barking aggressively at the officers, the nature and size of the
dogs, [and] the fact that the dogs were unleashed and loose in a small
residence.
Id. at 572.
There are some similarities between this case and Brown. The officers here,
like those in Brown, had no advanced notice of the dogs’ presence in the house. In
addition, officers in both cases testified that they could not safely clear the space
with the dogs there. Id. at 570; see also Defs.’ Ex. C, 49:3-7 (Officer Hurd
explained that he would shoot the dogs even if they were passive and confined “to
make sure the location was deemed clear.”).
Brown is also distinguishable from this case in many important respects.
First, there’s no evidence showing that the officers believed they would have to
contend with a highly dangerous criminal. Additionally, in Brown, the officers
encountered the two dogs “in an unsupervised environment where they were
unleashed and [running loose] in an enclosed space with the officers.” Id. at 572.
One of the dogs also jumped at the officers as they entered the house. Id. at 569.
Critically, this was not the case here. Blanca and Junior were not running
loose; in fact, they were confined to the kitchen and separated from the officers. In
addition, Joel Castro, pursuant to police orders, was on the ground and asked to be
allowed to secure the two dogs, who he claims were cowering in the corner.
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Viewing the facts in the light most favorable to Plaintiffs, a jury could
reasonably conclude that – given that the dogs were separated from the officers and
never lunged at or attacked the officers – the dogs did not pose an imminent threat
to officer safety. Therefore, seizing the dogs by killing them was unreasonable.
2. Alonzo Bullman – the stop and search of the vehicle
Alonzo Bullman alleges that he was a victim of an unconstitutional seizure
and that Sergeant Bray and Officer Hurd lacked reasonable suspicion to stop his
vehicle. He also contends that the search of his vehicle was unjustified.
The parties agree that Sergeant Bray and Officer Hurd stopped Alonzo
Bullman in his vehicle and that this was an investigative detention, “which must be
supported by a reasonable, articulable suspicion of criminal activity.” United States
v. Jones, 673 F.3d 497, 502 (6th Cir. 2012) (quoting United States v. Smith, 594
F.3d 530, 535 (6th Cir. 2010)). The reasonable suspicion inquiry requires the Court
to determine whether the totality of the circumstances gave the officers “a
particularized and objective basis for suspecting legal wrongdoing.” United States
v. Arvizu, 534 U.S. 266, 273 (2002). The question is whether all of the
circumstances “taken together give rise to reasonable suspicion that criminal
activity may be afoot.” United States v. Marxen, 410 F.3d 326, 329 (6th Cir. 2005).
Officer Hurd explained that he stopped Alonzo Bullman because he “was
driving around the block several times, it raised suspicion to myself and Sergeant

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Bray that he could possibly be attempting to ambush us, traveling around a
narcotic raid.” (Defs.’ Ex. C at 54:20-23). Similarly, Sergeant Bray said:
I saw him drive by two prior times . . . I saw both times that it was the same
vehicle that went by. I was standing out in front of the location, I saw the
vehicle coming down the block the third time . . . I wanted to see who was
continually driving by.
(Defs.’ Ex. Y at 58:4-17).
Defendants Hurd and Bray are not entitled to qualified immunity. First,
Alonzo Bullman’s Fourth Amendment right to be free from an unreasonable
seizure is a clearly established right of which a reasonable official would know.
See California v. Hodari D., 499 U.S. 621, 624-25 (1991). Second, Bray and Hurd
lacked reasonable suspicion to stop Alonzo Bullman. A vague, generalized fear
that Alonzo Bullman was going to ambush the officers does not satisfy the
“particularized and objective basis for suspecting” him of breaking the law. Heien
v. North Carolina, 135 S.Ct. 530, 536 (2014) (citing Navarette v. California, 134
S.Ct. 1683, 1687 (2014)); see also Arvizu, 534 U.S. at 274 (“[A]n officer’s reliance
on a mere hunch is insufficient to justify a stop.”). Furthermore, because Alonzo
Bullman was stopped without reasonable suspicion, the subsequent search of the
car was also invalid. See Wong Sun v. United States, 371 U.S. 471, 488 (1963).
3. Plaintiffs’ claims against the City of Detroit
Plaintiffs argue that the City of Detroit is liable for the violations of their 4th
and 14th Amendment rights vis-à-vis its policies and practices, which Plaintiffs
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claim fostered the officers’ unconstitutional conduct. They also contend that the
City failed to adequately supervise, train, monitor and discipline its officers and
that such failures evidence the City’s tolerance of police misconduct.
To succeed on a municipal liability claim, Plaintiffs must show that their
constitutional rights were violated and that the “violation occurred because of [an
official] municipal policy or custom.” Burgess v. Fischer, 735 F.3d 462, 478 (6th
Cir. 2013) (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)); see
also Connick v. Thompson, 563 U.S. 51, 60-61 (2011). Plaintiffs can establish the
existence of an illegal policy or custom by alleging “(1) the existence of an illegal
official policy or legislative enactment; (2) that an official with final decision
making authority ratified illegal actions; (3) the existence of a policy of inadequate
training or supervision; or (4) the existence of a custom of tolerance or
acquiescence of federal rights violations.” Id.
i.

Inaction Theory

Plaintiffs submit that the City of Detroit has implemented a “de facto” policy
of tolerating acts of police misconduct. This appears to be a custom-of-tolerance,
or “‘inaction theory,’ where a policy of tolerating federal rights violations is
unwritten but nevertheless entrenched.” Thomas v. City of Chattanooga, 398 F.3d
426, 429 (6th Cir. 2005). Under this theory, Plaintiffs must show: “(1) the
existence of a clear and persistent pattern of illegal activity; (2) notice or

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constructive notice on the part of the defendant; (3) the defendant’s tacit approval
of the unconstitutional conduct, such that their deliberate indifference in their
failure to act can be said to amount to an official policy of inaction; and (4) that the
defendant’s custom was the ‘moving force’ or direct causal link in the
constitutional deprivation.” Doe v. Claiborne County, 103 F.3d 495, 507 (6th Cir.
1996). Because Plaintiffs have set forth no evidence to meet any of these
requirements, nor have they provided anything to show that the City of Detroit
“had a ‘custom’ that reflected a deliberate, intentional indifference to” their
constitutional rights, this claim is dismissed. Id. at 508.
ii.

Failure to Train

Inadequate training may serve as the basis for § 1983 municipal liability
where it “amounts to deliberate indifference to the rights of persons with whom the
police come into contact.” Brown, 814 F.3d at 463 (internal quotations omitted).
To succeed, Plaintiffs must show “prior instances of unconstitutional conduct
demonstrating that the [municipality] . . . ignored a history of abuse and was
clearly on notice that the training in this particular area was deficient and likely to
cause injury.” Miller v. Sanilac Cnty., 606 F.3d 240, 255 (6th Cir. 2010) (internal
quotations omitted).
The City is entitled to summary judgment, as Plaintiffs have not identified
any illegal acts for which it is responsible. See Pembauer v. Cincinnati, 475 U.S.

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469, 479 (1986). Although Plaintiffs contend that their failure-to-train claim “is
bolstered by the incredibly high percentage of search warrants that include Detroit
police breaking down people’s doors, and the callousness and indifference of
Detroit police officers in general,” they have provided no information whatsoever
about these alleged illegal searches and/or the deliberate indifference of Detroit
police officers. (Compl. ¶ 129). Moreover, Plaintiffs have not established any
evidence of a pattern of violations by Detroit police. Plaintiffs have also failed to
allege anything with respect to the content, duration, or frequency of the City’s
training on the execution of search warrants, the level of justification required for
different types of police/citizen interactions, or the like.
B. State Claims
1. Conversion of the marijuana, dogs, and money
“Conversion is any distinct act of dominion wrongly exerted over another’s
personal property in denial of or inconsistent with his rights therein.” Thoma v.
Tracy Motor Sales, Inc., 104 N.W.2d 360, 362 (1960). Defendants argue that
governmental immunity under Michigan law bars Plaintiffs’ conversation claims.

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i. The City of Detroit
Under Michigan’s Government Tort Liability Act (GTLA), municipalities6
are immune from tort liability where they are engaged in the exercise or discharge
of a governmental function. M.C.L. § 691.1407(1). Although there are some
exceptions, “a governmental agency is immune from tort liability if the
governmental agency is engaged in the exercise or discharge of a governmental
function.” M.C.L. § 691.1401 et seq.; Nawrocki v. Macomb Co. Rd. Comm., 463
Mich. 143, 156-58 (2000). Plaintiffs must plead facts in avoidance of
governmental immunity, and can do so “by stating a claim that fits within a
statutory exception or by pleading facts that demonstrate that the alleged tort
occurred during the exercise or discharge of a non-governmental or proprietary
function.” Mack v. Detroit, 467 Mich. 186, 204 (2002)
Although Plaintiffs do not address Defendants’ immunity argument, it is
clear that because the City of Detroit, through its officers, was “engaged in the
exercise or discharge of a governmental function,” it is protected by immunity.
Mack, 467 Mich. at 200. Plaintiffs complain about the Detroit Police Department’s
training and hiring procedures and policies, all of which are “decisions that the
police department makes in the course of discharging its governmental function.”

6

The City of Detroit qualifies as a governmental agency under the GTLA. See M.C.L. §
691.1401(a), (d), and (e).

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Id. at 205. Therefore, the Court will grant summary judgment as to the City of
Detroit on Plaintiffs’ state law claims.
ii. The individual police officer defendants
The individual police officers are immune from liability if they show that
they: (1) acted during the course of their employment and acted, or reasonably
believed they acted, within the scope of their authority; (2) acted in good faith; and
(3) performed discretionary-decisional, rather than ministerial-operational,7 acts.
Alexander v. Riccinto, 192 Mich. App. 65, 70 (1991) (citing Ross v. Consumers
Power Co., 420 Mich. 567, 592 (1984)). Michigan courts have held that “[a] police
officer’s determination regarding the type of action to take . . . constitutes
discretionary action entitled to immunity.” Norris v. Lincoln Park Police Officers,
292 Mich. App. 574, 579 (2011); see also Alexander, 192 Mich. App. at 71.
Good faith in the context of qualified immunity for intentional tort liability
“is subjective in nature.” Odom, 482 Mich. at 481–82. A government employee
does not act in good faith if she acts “maliciously or with a wanton or reckless
disregard of the rights of others.” Id at 474. To establish willful and wanton
misconduct, there must be either intent to harm, or “such indifference to whether
harm will result as to be the equivalent of a willingness that it does.” Rankin v.

7

“Ministerial acts ‘constitute merely an obedience to orders or the performance of a duty
in which the individual has little or no choice.’” Odom v. Wayne County, 482 Mich. 459,
476 (2008).

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City of Highland Park, No. 318385, 2015 WL 773734, at *6 (Mich. Ct. App. Feb.
24, 2015), appeal denied, 498 Mich. 920, 871 N.W.2d 173 (2015) (quoting Odom,
482 Mich. at 474).
As described above, Plaintiffs have presented no evidence in support of their
claim that Officer Fox and/or the SOI lied in furtherance of Fox’s efforts to secure
a search warrant. Plaintiffs rightly concede that in the light of the Court’s finding
that the search warrant was valid, the seizure of the marijuana plants and cash was
proper.
The conversion claim as it relates to the killing of Junior and Blanca is also
subject to dismissal because the record does not demonstrate that Defendants acted
with malice. See Armstrong v. Ross Twp., 82 Mich. App. 77, 85-86 (1978).
2. Intentional Infliction of Emotional Distress
The four elements necessary for a prima facie case of intentional infliction
of emotional distress are: “(1) extreme or outrageous conduct; (2) intent or
recklessness; (3) caution; and (4) severe emotional distress.” Preston v. City of St.
Clair Shores, 2015 WL 12516687, at *10 (E.D. Mich. Dec. 31, 2015) (quoting
Roberts v. Auto-Owners Ins. Co., 374 N.W.2d 905, 908 (Mich. 1985)). “Pets have
long been considered personal property in Michigan” and “[t]here is no Michigan
precedent that permits the recovery of damages for emotional injuries allegedly
suffered as a consequences of property damage.” Koester v. VCA Animal Hosp.,

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244 Mich. App. 173, 176 (2000); see also Smith v. City of Detroit, 2017 WL
3279170, at *11 (E.D. Mich. Aug. 2, 2017); Preston, 2015 WL 12516687 at *8.
Therefore, the Court will grant summary judgment to Defendants on Plaintiffs’
IIED claim.
II.

Plaintiffs’ Motion for Leave to File Second Amended Complaint; the
Magistrate Judge’s Order Denying Without Prejudice Plaintiff’s
Motion to Compel; and Plaintiffs’ Motion to Amend/Correct
Scheduling Order

A. Motion for Leave to File Second Amended Complaint and Motion to
Amend/Correct Scheduling Order
Fed. R. Civ. P. 15(a) allows a party to amend the pleading after a responsive
pleading has been served “only by leave of court . . . and leave shall be freely
given when justice so requires.” The decision to grant or deny an opportunity to
amend is within the Court’s discretion. The Court is not compelled to grant leave
where amendment would be futile, meaning that “the proposed amendment would
not permit the complaint to survive a motion to dismiss.” Miller v. Calhoun
County, 408 F.3d 803, 817 (6th Cir. 2005) (citing Neighborhood Dev. Corp. v.
Advisory Counsel on Historic Pres., 632 F.2d 21, 23 (6th Cir. 1980)).
Plaintiffs submit that Alonzo Bullman’s Fifth Amendment rights were
violated when Sergeant Bray and Office Hurd asked him questions while he was in
their custody. They also seek to add a claim of conspiracy under 42 U.S.C. § 1985.
Finally, they wish to add SOI #3030 as a defendant in this case.

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1. Alonzo Bullman’s Fifth Amendment Claim
The Fifth Amendment requires that “[n]o person . . . shall be compelled in
any criminal case to be a witness against himself.” U.S. Const. Amend. V. That
this is a civil, rather than criminal, case “does not alter [the] conclusion that a
violation of the constitutional right against self-incrimination occurs only if one
has been compelled to be a witness against himself in a criminal case.” Chavez v.
Martinez, 538 U.S. 760, 770 (2003).
Although the police arrested Alonzo Bullman, they released him that same
day. It is also undisputed that Alonzo Bullman was never charged with a crime. It
is well settled “that the Fifth Amendment is a trial protection.” McKinley v. City of
Mansfield, 404 F.3d 418, 430 n.11 (6th Cir. 2005). “It is only once compelled
incriminating statements are used in a criminal proceeding . . . that an accused has
suffered the requisite constitutional injury for purposes of a § 1983 action.” Id.
(citing Chavez, 538 U.S. at 769); see also Lingler v. Fechko, 312 F.3d 237, 238-40
(6th Cir. 2002) (plaintiffs could not prevail on their Fifth Amendment claim
because their statements were not used against them in a criminal case).
2. Plaintiffs’ conspiracy claim under 42 U.S.C. § 1985
To maintain a cause of action for conspiracy under 42 U.S.C. § 1985(3),
Plaintiffs must establish: (1) a conspiracy involving two or more persons (2) for the
purpose of depriving, directly or indirectly, a person or class of persons of the

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equal protection of the laws and (3) an act in furtherance of the conspiracy (4)
which causes injury to a person or property, or a deprivation of any right or
privilege of a U.S. citizen. Smith v. Thornburg, 136 F.3d 1070, 1078 (6th Cir.
1998) (citing Johnson v. Hills & Dales Gen. Hosp., 40 F.3d 837, 839 (6th Cir.
1994)). Plaintiffs must also show that the conspiracy was motivated by a classbased animus. Id. (citing Collyer v. Darling, 98 F.3d 211, 233 (6th Cir. 1996), cert.
denied, 520 U.S. 1267 (1997)). Because Plaintiffs have never alleged that the
police officer defendants were motivated by any type of class-based animus, this
claim would not survive a motion to dismiss, and the Court declines to allow
Plaintiffs to add this claim to their complaint.
3. The addition of the SOI as a defendant
As discussed above, Plaintiffs have not established that they are entitled to
the identity of SOI #3030. Accordingly, there’s no need to modify the scheduling
order for the SOI’s deposition, nor should Plaintiffs be permitted to add the SOI as
a defendant in this case.
B. Magistrate Judge’s Order Denying Without Prejudice Plaintiffs’
Motion to Compel
The Court may set aside the Magistrate Judge’s order if it is clearly
erroneous or contrary to law. See 28 U.S.C. § 636(b)(1)(A); United States v.
Curtis, 237 F.3d 598, 603 (6th Cir. 2001). A decision is “clearly erroneous” if
“although there is evidence to support it, the reviewing court on the entire evidence
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is left with the definite and firm conviction that a mistake has been committed.”
United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948).
The Magistrate Judge did not clearly err in denying without prejudice
Plaintiffs’ Motion to Compel. Plaintiffs presented no objective evidence that the
anonymous tipster does not exist and that either Officer Fox or the SOI fabricated
the allegations in the search warrant affidavit. Plaintiffs are not entitled to the
identity of the anonymous tipster because she “merely convey[ed] information to
the” police; she neither “witness[ed] nor participat[ed] in the offense.” Wilson v.
O’Dea, 16 F.3d 1224, at *4 (6th Cir. 1994). As for the SOI, the fact that Plaintiffs
consider it ludicrous that Joel Castro would answer the door carrying a bag of
marijuana is not a justification for “overriding both the public interest in
encouraging the flow of information, and the informant’s private interest in his or
her own safety.” United States v. Martinez, 922 F.2d 914, 921 (1st Cir. 1991).
Accordingly, the Court OVERRULES Plaintiffs’ Objection.
CONCLUSION
For the reasons discussed on the record and as set forth above,
Defendants’ Motion for Summary Judgment is GRANTED IN PART and
DENIED IN PART, as follows:
 The Motion is DENIED as to Joel Castro’s Fourth Amendment illegal
seizure claim for the killing of his dog, Junior, against Sergeant Bray,
and is otherwise GRANTED.

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 The Motion is DENIED as to Nicole Motyka’s Fourth Amendment
illegal seizure claim for the killing of her dog, Blanca, against
Sergeant Bray, and is otherwise GRANTED.
 The Motion is DENIED as to Alonzo Bullman’s Fourth Amendment
claim for the illegal search of his car and seizure of his person against
Sergeant Bray and Officer Hurd, and is otherwise GRANTED.
 The Motion is GRANTED as to Plaintiffs’ federal and state law
claims against the City of Detroit.
 The Motion is GRANTED as to Plaintiffs’ claim of intentional
infliction of emotional distress against all Defendants.
 The Motion is GRANTED as to Plaintiffs’ claims for conversion of
the seized marijuana plants, the cash, and the dogs.
Plaintiffs’ Motion for Leave to File Second Amended Complaint [59] is
DENIED.
Plaintiffs’ Objection to the Magistrate Judge’s Order Denying Without
Prejudice the Motion to Compel [50] is OVERRULED.
Plaintiffs’ Motion to Amend/Correct Scheduling Order [51] is DENIED.
SO ORDERED.

Dated: February 28, 2018

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

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