Setterington et al v. City of Warren et al

Filing 124

OPINION and ORDER Dismissing James R. Fouts, Lynn Martin, Everett Murphy, and Jere Green as Defendants, Granting Defendants' 82 and 110 Motions for Summary Judgment, and Denying the City of Warren's 88 Motion for an Order of Contempt. Signed by District Judge Judith E. Levy. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Marianne Heffner, Bryan
Mazurkiewicz, Michigan Safe
Transfer Center, LLC, Legal Real
Estate, LLC, and Michael Greiner,
Plaintiffs,

Case No. 15-cv-13687
Judith E. Levy
United States District Judge

v.
City of Warren, James R. Fouts,
Lynn Martin, Everett Murphy,
Jere Green, Kevin Dailey, Sean
Johnston, and City of Warren
Police Department Officers 1-8,
Defendants.
________________________________/
OPINION AND ORDER DISMISSING JAMES R. FOUTS, LYNN
MARTIN, EVERETT MURPHY, AND JERE GREEN AS
DEFENDANTS, GRANTING DEFENDANTS’ MOTIONS FOR
SUMMARY JUDGMENT [82, 110], AND DENYING THE CITY OF
WARREN’S MOTION FOR AN ORDER OF CONTEMPT [88]
This case involves alleged constitutional and state-law violations
arising from two searches of a commercial property in Warren,
Michigan, pursuant to an unspecified policy of defendant the City of
Warren (“Warren”), targeting either medical marijuana generally or

medical marijuana dispensaries specifically. Following two amended
complaints, plaintiffs now allege that Warren and numerous Warren
Police Department officers are liable for the aforementioned violations.
What plaintiffs have not done is allege that defendants James R. Fouts,
Lynn Martin, Everett Murphy, and Jere Green have violated any law.
Defendants now move for summary judgment as to the claims asserted
(or not asserted) against them, and Warren moves for an order of
contempt against plaintiffs Michael Greiner and Bryan Mazurkiewicz.
For the reasons set forth below, defendants’ motions for summary
judgment are granted, and Warren’s motion for an order of contempt is
denied.
I.

Background

Plaintiffs initially filed suit on September 28, 2015, in Michigan
state court. The suit was timely removed on October 19, 2015. (Dkt. 1.)
Initially, the plaintiffs included twenty-three individuals and two LLCs.
(Id. at 8.)

Following a series of stipulated dismissals and amended

complaints, plaintiffs now consist of Marianne Heffner, Bryan
Mazurkiewicz, Michael Greiner, Michigan Safe Transfer Center, LLC
(“MSTC”), and Legal Real Estate, LLC. (Dkt. 59.)
2

On October 21, 2015, Warren moved for a temporary restraining
order seeking to prevent occupancy of the property located at 29601
Hoover Road by MSTC and Legal Real Estate, LLC, based on various
ordinance violations. (Dkt. 3.) That day, the Court held a telephonic
conference regarding the motion and denied it without prejudice,
converting it into a motion for a preliminary injunction.

Following

briefing, the Court held a hearing on the motion on November 19, 2015,
and on November 20, 2015, granted the preliminary injunction in part
and denied it in part. (Dkt. 12.)
In the time between the partial granting of that preliminary
injunction and the October 30, 2017 hearing on the above-referenced
motions for summary judgment and for an order of contempt, the Court
held nine different telephonic conferences regarding discovery and other
disputes, and on September 1, 2016, held a hearing on a prior motion
for partial summary judgment filed by defendants.
Plaintiffs Heffner and Mazurkiewicz are “primary caregivers”
within the meaning of the Michigan Medical Marihuana Act (“MMMA”).
MICH. COMP. LAWS § 333.26423(k). Heffner and Mazurkiewicz are also
“qualified patients” within the meaning of the MMMA. MICH. COMP.
3

LAWS § 333.26423(l). Legal Real Estate, LLC, managed by Greiner, has
a valid certificate of occupancy, issued by defendant the Warren, for
Suite A of the real property located at 29601 Hoover Road in Warren,
Michigan. Legal Real Estate, LLC is also the owner of the building.
Suite A is approved for use as a “law office.” (Dkt. 27-9.)
Plaintiff MSTC also operated out of Suite A, “conducting transfers
of medical marihuana” pursuant to the MMMA. (Dkt. 94 at 10; Dkt. 793.) MSTC, managed by Mazurkiewicz, wanted to operate out of Suite B
and the basement of the building. On March 10, 2015, MSTC submitted
a certificate of compliance application to Warren. (Dkt. 3-12 at 2.) The
application was required to occupy any part of the building, for Suite B,
with the disclosed use of “consultation/transfer goods services.” (Id.)
The application was rejected for failing to disclose the actual use of the
space, and MSTC submitted a revised certificate of compliance
application on March 12, 2015, which had attached to it a series of
proposed uses as a patient/caregiver transfer club. (Id. at 4-5.)
Also on March 12, 2015, Warren inspected the building and
discovered that MSTC was operating out of Suite B, which led to a
citation for Legal Real Estate, LLC. (Dkt. 3-15.) The second certificate
4

of compliance application was denied on March 13, 2015, because the
transfer center was not a permitted use on that land. (Dkt. 3-14.) After
that citation, MSTC moved its operations fully to Suite A. (Dkt. 79-5 at
7.)
MSTC twice more applied for a certificate of compliance for Suite
B on March 19, 2015, and March 30, 2015, and was rejected each time.
(Dkt. 79 at 10-11.) On July 7, 2015, the Warren Police Department
(“WPD”) received an anonymous tip that there was illegal drug activity
at the property, and began an investigation. (Dkt. 110-16 at 13.) An
internet search revealed that MSTC operated out of the property, and
WPD looked for MSTC’s registration and permits. (Id.) Finding no
registration for a medical marijuana dispensary at that location, WPD’s
Special Investigation Division began surveillance on the property. (Id.)
That same day, WPD officers surveilling the property stopped two cars
as they were leaving the property, and found marijuana in both cars.
(Id. at 14.) Both drivers told the officers that they had purchased the
marijuana from MSTC, and that the person who provided each of them
with the marijuana was not their registered caregiver. (Dkt. 110-2 at
5.)
5

After WPD found marijuana in both cars, WPD officer Nicholas
Lienemann returned to headquarters to write an affidavit to obtain a
search warrant. (Dkt. 110-16 at 14.) Meanwhile, the “five to seven
officers” (Dkt. 110-19 at 3) still on the scene at the property entered
MSTC and “secured the scene awaiting arrival” of the warrant. (Dkt.
110-16 at 14.)

They entered MSTC through the front door used by

customers, (Dkt. 110-19 at 3), and were armed when they did so. (Dkt.
112-2 at 11.)
The officers first encountered former plaintiff Justin Felix, who
was seated at the MSTC reception desk. (Dkt. 110-19 at 3.) Felix put
his “hands up immediately” and greeted the officers. (Id. at 4.) The
officers asked Felix if there was anyone else in the building, and Felix
told them that Mazurkiewicz was in the basement. (Id.) The officers
then searched Felix, taking his wallet and phone from him, and directed
him to open a locked door leading into the back area and basement of
MSTC. (Id.) The officers instructed Felix to unlock the door to the
basement, he complied, and the officers went down to the basement to
find Mazurkiewicz. (Id. at 4-5.) The officers brought Mazurkiewicz up

6

to the lobby and detained both Mazurkiewicz and Felix there for the
remainder of the search. (Dkt. 110-21 at 3.)
Once the officers finished securing the premises, the parties differ
as to what occurred next. Defendant Sean Johnston, the detective in
charge of the search, (Dkt. 112-3 at 6), testified that after the officers
brought both Felix and Mazurkiewicz into the lobby of the building, the
officers waited until a warrant was obtained to begin searching. (Dkt.
112-3 at 20.) This version of events is also reflected in the police report
prepared the next day by an unknown officer. (Dkt. 110-16 at 14-15.)
According to that police report, WPD officers entered 29601 Hoover
Road at 6:10 P.M. and the warrant was signed and delivered to the
premises two hours later, at 8:10 P.M. (Dkt. 110-16 at 14-15.)
Felix

testified

that

after

the

officers

secured

him

and

Mazurkiewicz in the lobby, the officers picked up Post-It notes off of a
desk and placed them over the surveillance cameras in the building.
(Dkt. 110-19 at 5.) Felix did not state, however, that the officers began
searching the property after placing the Post-It notes over the cameras.
He and Mazurkiewicz were kept in the lobby for “three to five” hours
under the supervision of an officer. (Id.) Mazurkiewicz testified they
7

were in the lobby for “four hours.” (Dkt. 110-21 at 3.) At some point
during this time, Felix asked Johnston if they had a warrant to search
the property.

(Dkt. 110-19 at 6.)

According to Felix, Johnston

responded by telling Felix to “watch [his] mouth unless [he] wanted
things to get a lot worse.” (Id.) Mazurkiewicz also asked Johnston if
they had a warrant.

(Id.)

Felix testified that Johnston told

Mazurkiewicz that “unless they wanted [the police] to come in with
sledge hammers and start breaking the place up that [they] should shut
up.” (Id.)
Once the search actually commenced, the parties’ stories converge.
Felix assisted the officers by opening marijuana storage lockers, the
door to a marijuana growing room, and the basement of the building.
(Dkt. 110-19 at 4.)

After a “couple of hours” Mazurkiewicz called

Greiner (Dkt. 110-21 at 3), who arrived on the scene “shaking” and
“obviously flustered.”

(Dkt. 112-4 at 6.)

Defendant Kevin Dailey

handcuffed Greiner until he calmed down – about ten minutes – and
then allowed him to wait out the duration of the search in the lobby
with his clients.

(Id.)

Johnston testified that while Greiner was

handcuffed, Johnston showed Greiner the warrant to help him calm
8

down. (Dkt. 112-3 at 22.) Defendants left a copy of the search warrant
at MSTC when they departed. (Dkt. 110-19 at 6.)
The warrant authorized WPD to search the premises at 29601
Hoover Road and seize:
[a]ny and all illegally possessed controlled substances, such
as, but not limited to: . . . Marijuana . . . All valuables and/or
proceeds (money) related to drug sales. Any drug
paraphernalia utilized for processing, weighing, packaging,
cultivating, distribution, dilution and consumption of a
controlled substance. All proofs as to occupants and/or
residents of the premises, as well as safes and lock boxes
utilized to secure drugs and drug proceeds. All records and
ledgers related to drug sales, including computer hard
drives, software, hardware, monitors, printers, cell phones
and accessories.
(Dkt. 110-2 at 4.) WPD recovered over 400 grams of marijuana and
over 12,000 grams of marijuana byproducts (edibles) in the search.
However, WPD made no arrests, the district attorney did not file
charges, and MSTC continued to operate. (Dkt. 110-21 at 3.)
Two months later, on September 18, 2015, WPD conducted a
second search of the property. (Dkt. 110-22.) This search came about
when WPD conducted traffic stops of plaintiff Marianne Heffner and
former plaintiff James Satterfield as they left 29601 Hoover Road, and
it was learned that they had purchased marijuana from individuals who
9

were not their registered caregivers.

(Id.)

WPD used the evidence

obtained in those stops as probable cause for a warrant to search MSTC
again.

(Dkt. 110-3.)

During the stops Johnston told Heffner and

Satterfield that they needed to “fill out a statement.” (Dkt. 112-6 at 11.)
Heffner testified that she “wrote exactly what he told me to write” (id.)
and Satterfield testified that he “wrote down whatever they were telling
me to write.”

(Dkt. 112-7 at 10.)

Each was issued a citation and

allowed to leave the scene. (Dkt. 110-3 at 3.) The written statements
themselves were not made part of the affidavit supporting the
September 18, 2015 search warrant. (See id.)
Defendants claim that the officers were in the vicinity of 29601
Hoover Road on an “unrelated matter” when they observed drug activity
at the property.

(Dkt. 110-22 at 8.)

Plaintiffs take issue with this

characterization and assert that WPD was in the area as part of an
ongoing investigation of MSTC, as Johnston indicated in his deposition.
(Dkt. 112-3 at 9-10.)
The parties agree that the September 18, 2015 search began when
police approached the door of MSTC and called a phone number listed
on a notice on the door. (Dkt. 110-21 at 4, 112-3 at 19-20.) Defendants
10

maintain that they were allowed in to the building without incident.
However, Mazurkiewicz testified that Johnston “threatened to break
the door” if Mazurkiewicz did not let the police in to the building. (Dkt.
110-21 at 4.) The parties agree that Mazurkiewicz opened the door and
allowed the police into the building. (Id.) He and Felix were again
detained together in the lobby of the building while WPD searched for
three to five hours. (110-19 at 8.) Greiner also appeared on the scene
and was detained in the lobby along with Mazurkiewicz and Felix. (Id.)
WPD again left a copy of the search warrant at MSTC as they departed.
(Id.)
The warrant for the September 18, 2015 search authorized WPD
to search the premises at 29601 Hoover Road and seize:
Any and all illegally possessed controlled substances, such
as, but not limited to: . . . Marijuana . . . All valuables and/or
proceeds (money) related to drug sales.
Any drug
paraphernalia utilized for processing, weighing, packaging,
cultivating, distribution, dilution and consumption of a
controlled substance. All proofs as to occupants and/or
residents of the premises, as well as safes and lock boxes
utilized to secure drugs and drug proceeds. All records and
ledgers related to drug sales, including computer hard
drives, software, hardware, monitors, printers, cell phones
and accessories.

11

(Dkt. 110-3 at 2.)

WPD seized 4,691.9 grams of loose and edible

marijuana. (Dkt. 110 at 22.) It also seized an unspecified number of
MMMA patient and caregiver cards.

(Dkt. 112-3 at 7.)

Again, no

arrests were made and no charges were filed against plaintiffs. (Dkt.
110 at 22.)
Plaintiffs’ second amended complaint, filed on September 12,
2016, asserts the following claims: 1) violation of Mazurkiewicz’s right
to liberty under the Fourteenth Amendment based on unlawful
imprisonment during the two searches; 2) violation of plaintiffs’ right to
procedural due process based on the seizure of property in the two
searches and failure to return that property; 3) violation of plaintiffs’
right to protection from unreasonable search and seizure under the
Fourth Amendment when the police officers conducted an allegedly
warrantless search on July 7, 2015; 4) violation of plaintiffs’ rights to
equal protection under the Fourteenth Amendment based on Warren’s
efforts to stop the lawful transfer of medical marijuana; and 5) false
imprisonment. (See Dkt. 59.)
On March 31, 2017, Fouts, Martin, Murphy, Green and Warren
filed a motion for summary judgment, with the individual defendants
12

arguing that no claims were asserted against them, and Warren
arguing that summary judgment was proper as to any municipal
liability claim asserted against it.

(Dkt. 79.)

On July 13, 2017,

Johnston and Dailey filed a motion for summary judgment as to all
claims asserted against them. (Dkt. 110.) On April 28, 2017, Warren
also filed a motion for sanctions against Mazurkiewicz and Greiner for
failure to comply with the Court’s prior order regarding inspection of
the Hoover Road property. (Dkt. 88.)
Oral argument was scheduled for these motions on October 30,
2017. The Court discussed the possibility of settlement with the parties
in lieu of argument, and the parties attempted to resolve their dispute.
On February 6, 2018, the parties informed the Court that settlement
was not possible, and the Court informed the parties that it would
determine these motions on the briefs pursuant to E.D. Mich. Local R.
7.1(f)(2).

Warren also submitted a declaration in support of their

motion for sanctions on February 9, 2018. (Dkt. 123.)
II.

Legal Standard

Summary judgment is proper where “the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled
13

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court may
not grant summary judgment if “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court “views the
evidence, all facts, and any inferences that may be drawn from the facts
in the light most favorable to the nonmoving party.” Pure Tech Sys.,
Inc. v. Mt. Hawley Ins. Co., 95 F. App’x 132, 135 (6th Cir. 2004) (citing
Skousen v. Brighton High Sch., 305 F.3d 520, 526 (6th Cir. 2002)).
III. Analysis
A. Claims Against Fouts, Martin, Murphy, and Green
Plaintiffs’ complaint asserts two broad counts: one for “violation of
42 USC § 1983” and one for false imprisonment under Michigan law.
The § 1983 count asserts claims for violation of substantive and
procedural due process rights under the Fourteenth Amendment,
unreasonable search and seizure under the Fourth Amendment, and
equal protection under the Fourteenth Amendment. (Dkt. 59 at 13-14.)
The substantive due process claim, although referencing defendants
generally, is asserted only against the officers whom Mazurkiewicz and

14

Greiner claim unlawfully imprisoned them. (Id. at 14.)1 The procedural
due process claim is only asserted against the officers, as well. (Id.)
The unreasonable search and seizure is asserted against the officers
who conducted an alleged warrantless search on July 7, 2015. (Id.) The
equal protection claim is asserted against Warren.

(Id.)

The false

imprisonment claim is asserted against the officers who detained
Mazurkiewicz and Greiner. (Id. at 15-28.)
Defendants James R. Fouts, Lynn Martin, Everett Murphy, and
Jere Green have no claims asserted against them in the complaint.
Fouts, the mayor of Warren, is referenced only as having “suggested
Regulations related to medical marijuana [i]n his State of the City
speech on or about April 15, 2015, . . . that would violate of the
Michigan Supreme Court’s ruling in Ter Beek v. City of Wyoming, 495
Mich. 1 (2014).” (Id. at 8.) Martin, the former Warren Chief Zoning
Inspector, is mentioned as having “told Plaintiff Bryan Mazurkiewicz on
The count states that “Plaintiffs Bryan Mazurkiewicz and Justin Felix’s rights to
liberty were violated when Defendants unlawfully imprisoned them during the two
fruitless searches of the Property.” (Dkt. 59 at 14.) However, plaintiffs also allege
that on July 7, 2015 and September 18, 2015, “police officers from Defendant City of
Warren” and “City of Warren Police” conducted the raids at issue in the substantive
due process claim. (Id. at 9-11.) No other defendants are alleged to have
participated in the raids, and the claim makes clear that it is only asserted against
the defendants that participated in the “two fruitless searches of the Property.”
There are no allegations against any non-officer defendant.
1

15

separate occasions ‘you can’t grow marihuana in Warren’ and ‘we don’t
want those kind of people here.’” (Id.) Murphy, the current Warren
Chief Zoning Inspector, is referenced as having “repeatedly told
Plaintiff Bryan Mazurkiewicz that Plaintiffs were in violation of
Warren zoning ordinances,” having issued plaintiffs tickets for zoning
violations, and threatening to continue ticketing them for zoning
violations. (Id. at 8-9.) Green, the Warren Police Commissioner, is
referenced as having “sent a letter dated August 15, 2015, to Plaintiffs,
ordering them to cease any illegal activity in Suite B of the Property.”
(Id. at 10.)
Plaintiffs do not address this deficiency in their response to these
defendants’ motion for summary judgment. Instead, plaintiffs argue
that Fouts and Green committed acts that could lead to municipal
liability for Warren (Dkt. 94 at 22-24), that Martin performed acts that
would potentially undercut Warren’s defenses to the § 1983 claims (id.
at 26-27), and that Murphy performed acts that would make summary
judgment as to an unspecified claim inappropriate. (Id. at 27.) Green is
referenced as having played “a policy role in fighting the application of

16

the state law on medical marijuana,” (Id. at 23), but this reference is
made only in support of the municipal liability claim against Warren.
Plaintiffs argue that “prior complaints, including the final
amended one, did plead these claims against all Defendants.” (Dkt. 94
at 9.) The operative complaint in this case pleads no claims against
Fouts, Martin, Murphy, or Green. Amended complaints supplant all
prior pleadings, and a plaintiff cannot argue that multiple complaints
are effective at the same time, or that they may retain abandoned
claims from prior complaints.
Although it is unclear from their response brief, it appears that
plaintiffs are arguing that Fouts, Martin, Murphy, and Green’s roles as
decision makers would somehow make them jointly or separately liable
for the municipal acts of Warren. However, municipal liability as set
forth in Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978) applies “only .
. . when it can be fairly said that the city itself is the wrongdoer.”
Collins v. City of Harker Heights, Tex., 503 U.S. 115, 122 (1992)
(emphasis added).

Although the actions of officials may serve as

evidence of a municipality’s wrongdoing, they do not expose the officials

17

themselves to liability unless some separate claim is asserted against
those officials for their actions.
Because no claims are asserted against Fouts, Martin, Murphy,
and Green, the Court must dismiss these four defendants from this
case.
B. Claims Against Dailey, Johnston, and Unknown
Officers
When “discovery is closed and [p]laintiff [] has not identified
Officer Doe, the Court dismisses Officer Doe from the case.” Johnson v.
City of Ecorse, 137 F. Supp. 2d 886, 892 (E.D. Mich. 2001) (citing Hindes
v. FDIC, 137 F.3d 148, 155 (3d Cir. 1998)). Discovery is now closed, and
plaintiffs have not moved to amend their complaint to identify the eight
unknown WPD officers. Plaintiffs’ claims against the unknown officers
are dismissed.
Dailey and Johnston contend that they are entitled to qualified
immunity with regard to the constitutional claims arising out of the two
searches.

The Supreme Court outlined the two part analysis for

qualified immunity in Saucier v. Katz, 533 U.S. 194 (2001). One part of
the analysis is whether “[t]aken in the light most favorable to the party
asserting the injury, do the facts alleged show the officer's conduct
18

violated a constitutional right?”

Id. at 201.

The other part of the

analysis is to ask “whether the [allegedly violated] right was clearly
established.”

Id.

The “clearly established” inquiry “must be

undertaken in light of the specific context of the case, not as a broad
general proposition.” Id.
There is no rigid order in which this test must proceed. Pearson v.
Callahan, 555 U.S. 223, 236 (2009). Courts “should be permitted to
exercise their sound discretion in deciding which of the two prongs of
the qualified immunity analysis should be addressed first in light of the
circumstances in the particular case at hand.” Id.
Each of the constitutional claims is asserted against Dailey and
Johnston, and concerns alleged harms experienced by Mazurkiewicz or
Greiner. Despite her inclusion as a plaintiff, the complaint asserts no
claims on behalf of Heffner, and it is unclear whether Michigan Safe
Transfer LLC, or Legal Real Estate, LLC are asserting claims. The
claims at issue with regard to Dailey and Johnston are:
1) Violation of the “substantive right to liberty,” defined as
unlawful imprisonment. (Dkt. 59 at 13, 14.)

19

2) Violation of “procedural due process,” defined as the seizure of
certain property from plaintiffs that defendants have refused to
return. (Id. at 14.)
3) “[U]nreasonable search and seizure,” in which plaintiffs allege
the July 7, 2015 search was warrantless. (Id.)
4) False imprisonment under Michigan law. (Id. at 15-28.)
Dailey and Johnston move for summary judgment with respect to
each of these claims.
First, plaintiffs’ response to the motion for summary judgment
only addresses the unreasonable search and seizure/warrantless search
claim.

“[A] plaintiff is deemed to have abandoned a claim when a

plaintiff fails to address it in response to a motion for summary
judgment.” Brown v. VHS of Mich., Inc., 545 F. App'x 368, 372 (6th Cir.
2013). Accordingly, the Court must grant summary judgment to Dailey
and Johnston on the constitutional and state law false imprisonment
claims, and the procedural due process claim.2

The response to the motion for summary judgment also argues that Heffner and
Satterfield’s September 18, 2015 statements were coerced, violating their Fifth
Amendment and due process rights. (Dkt. 112 at 24.) However, these claims are
not asserted in the operative complaint, and cannot be considered at summary
judgment.
2

20

The remaining claim alleges that the July 7, 2015 search was
warrantless, and violated plaintiffs’ Fourth Amendment rights.
Although plaintiffs claimed in their complaint the search was
warrantless, Dailey and Johnston have produced the warrant
supporting the search. (Dkt. 110-2.) Plaintiffs now argue that the WPD
officers, including Dailey and Johnston, began searching the property
prior to the issuance of the warrant. (Dkt. 113 at 5-6.)
As a general rule, “searches conducted outside the judicial process,
without prior approval by judge or magistrate, are per se unreasonable
under the Fourth Amendment—subject only to a few specifically
established and well delineated exceptions.”

Coolidge v. New

Hampshire, 403 U.S. 443, 454-55 (1971) (citing Katz v. United States,
389 U.S. 347, 357 (1967)). Searches conducted pursuant to a warrant
are considered reasonable under the Fourth Amendment. Cf. id.
The Supreme Court defines a search for Fourth Amendment
purposes as government intrusion into an area in which an individual
has a subjective expectation of privacy that “society is prepared to
recognize as reasonable.” Katz, 389 U.S. at 361 (Harlan, J. concurring).
“Property used for commercial purposes is treated differently for Fourth
21

Amendment purposes from residential property.” Minnesota v. Carter,
525 U.S. 83, 90 (1998).

The “expectation of privacy in commercial

premises . . . [is] less than a similar expectation in an individual’s
home.” New York v. Burger, 482 U.S. 691, 700 (1987). There is no
“reasonable expectation of privacy in areas of [a] store where the public
[is] invited to enter and to transact business.” Maryland v. Macon, 472
U.S. 463, 469 (1985).
Plaintiffs argue “that when the police arrived at the scene they did
not have a warrant for their search,” (Dkt. 112 at 16) and “[t]here is
evidence that the search started (and perhaps was even completed)
prior to the issuance of a warrant.” (Id. at 22.)
MSTC held itself out as a medical marijuana dispensary open for
business to the public.

(Dkts. 110-9 through 110-13.)

When WPD

conducted an internet search for information about MSTC, it found a
Yahoo business page (Dkt. 110-11) and a Yelp page (Dkt. 110-12), each
listing MSTC as a cannabis dispensary. It also found pages for MSTC
on two medical marijuana dispensary directories: wheresweed.com
(Dkt. 110-9) and THCfinder.com.

(Dkt. 110-13.)

In addition, Felix

testified his job was to sit at the front desk to “greet patients and
22

caregivers,” (Dkt. 112-2 at 4), and the doors were kept unlocked for
business hours. (Id. at 5.) However, he also testified that customers
only

walked

through

the

front door

without

an

appointment

“occasionally.” (Id. at 4.)
This evidence, when taken together, indicates that MSTC was
open to the public. Its online presence, combined with testimony that it
employed a receptionist to “greet patients and caregivers” (Dkt. 112-2 at
4) who came through unlocked doors during business hours, indicates
the lobby area of MSTC – where WPD first entered the building – was
the “area[] of the store where the public was invited to enter and to
transact business.” Macon, 472 U.S. at 469. Accordingly, there was a
diminished expectation of privacy in that space, and the officers’ entry
into that space was not a search within the Fourth Amendment. See id.
Plaintiffs have also not created a genuine issue of material fact
regarding whether the search started before the warrant was issued.
Dailey and Johnston provide two pieces of evidence indicating that
WPD did not commence the search until the warrant was issued. First,
Johnston testified WPD “entered the premises, made it safe, requested
a search warrant for the premises, and waited until a search warrant
23

was secured.” (Dkt. 112-3 at 20.) When asked if “a search was then
commenced after a search warrant was signed by a judge,” Johnston
replied, “correct.” (Id.) Second, the police report from the July search
indicates that the officers entered 29601 Hoover Road at 6:10 P.M., at
which time “officers entered the business and secured the scene
awaiting arrival on the signed Affidavit.” (Dkt. 110-16 at 14.) Two
hours later, at 8:10 P.M., Lienemann, the affiant, returned with the
warrant and “officers began a search of 29601 Hoover.” (Id. at 15.)
Plaintiffs argue that there is a genuine issue of material fact
regarding whether the search of the property began before the WPD
obtained a warrant. However, they cite only to the affidavit of Greiner’s
legal assistant, Madilyn Greiner (Dkt. 112-8), in which she states she
contacted the district court that issued the warrant and was told that
court did not keep time records for search warrants, only dates. (Id.)
Plaintiffs argue that the question of when the search began “can only be
resolved through witness testimony.” (Dkt. 112 at 17.)
The parties have provided witness testimony, which tells a single
story: the WPD entered a public area of a business, secured the
premises, and waited to begin searching until they obtained a warrant.
24

Plaintiffs have failed to provide any testimony or other evidence
creating a genuine issue of material fact as to whether the WPD, and
Dailey and Johnston in particular, began searching the property before
a warrant was obtained. Summary judgment is therefore proper as to
plaintiffs’ unreasonable search and seizure claim.
C. Monell Claim Against Warren
“[W]hen execution of a government’s policy or custom, whether
made by its lawmakers or by those whose edicts may fairly be said to
represent official policy, inflicts the injury . . . the government as an
entity is responsible under § 1983.” Monell v. Dep’t of Soc. Servs. of the
City of New York, 436 U.S. 658, 694 (1978). “To state a claim for relief
in an action brought under § 1983, [plaintiffs] must establish that they
were deprived of a right secured by the Constitution or laws of the
United States, and that the alleged deprivation was committed under
color of state law.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 4950 (1999).
Plaintiffs’ complaint states that “Defendant City of Warren’s
efforts to stop the lawful transfer of medical marihuana within its
borders” violated plaintiffs’ rights to equal protection under the
25

Fourteenth Amendment.

(Dkt. 59 at 14.)

In their response to the

motion for summary judgment, plaintiffs state generally that there is a
“settled policy custom that caused a deprivation of Plaintiffs’
constitutional rights.” (Dkt. 94 at 21.)
Plaintiffs cite two statements to support the existence of this
policy: one allegedly made by Dailey to Felix that “the Mayor did not
want marijuana in the City, so it could be grown nowhere within the
City” and one allegedly made by Martin to Mazurkiewicz that “you can’t
grow marijuana in the City of Warren.” (Id. at 22.)
Plaintiffs make no argument that Dailey, Fouts, or Martin are
final policymakers for Warren.

“Municipal liability may attach for

policies promulgated by the official vested with final policymaking
authority for the municipality.” Miller v. Calhoun Cnty., 408 F.3d 803,
813 (6th Cir. 2005) (citing Pembaur v. City of Cincinnati, 475 U.S. 469
482-83 (1986)). Plaintiffs attempt to show that Fouts has policymaking
authority by implication, based on efforts Fouts made to prevent other
disfavored businesses from operating within Warren city limits.
Plaintiffs first rely on a memo that Fouts issued on September 2,
2015, directing the Zoning and Planning Departments “to not consider
26

the establishment of any more used car lots in our city until a thorough
review of the used car lot ordinance can be reviewed.”

(Dkt. 94-8.)

However, plaintiffs provide a newspaper article, dated December 16,
2015, in which the Warren City Council overrode Fouts’ veto of approval
for a used car lot in city limits. (Dkt. 94-9.) This series of events not
only fails to establish Fouts’ final policymaking authority, it fails to
establish a colorable constitutional violation. It also fails to establish
any policy of the City of Warren related to medical marijuana.
Plaintiffs further rely on a “Special Media Notice” Fouts issued on
May 23, 2014, in which he highlighted “city ordinance regulations for
purchase and discharge of fireworks during the Memorial Day
weekend” and expressed his opposition to the Michigan Fireworks
Safety Act. (Dkt. 94-10.) Plaintiffs also provide a July 3, 2014 press
release detailing Fouts’ “all-out effort against illegal fireworks,” setting
forth various actions Fouts would take the next day to advise fireworks
sellers about city fireworks regulations and crack down on violators of
city fireworks ordinances. (Dkt. 94-11.) Like the used car lot memo,
these two releases do not establish any unconstitutional activity by
Fouts or Warren, and do not establish any policy related to medical
27

marijuana, nor do they reveal that Fouts is a final policymaker for the
City of Warren.
Plainitffs also provide a January 11, 2016 news article in which
Fouts called for a new ordinance regulating medical marijuana growth
that “the City Council voted 4-3 to table . . . ahead of an expanded
discussion on the matter.” (Dkt. 94-12 at 2.) Finally, plaintiffs provide
an April 8, 2016 news article in which Fouts is described as “put[ting]
past battles over everything from medical marijuana cultivation in
residential neighborhoods, to flamethrowers, fireworks and used car
lots back in the crosshairs” during a State of the City speech. (Dkt. 9415 at 2.)
The January 11, 2016 article established that Fouts could not
make policy regarding medical marijuana without approval of the City
Council. The second article lists medical marijuana alongside a list of
other topics Fouts discussed, none of which have been shown to have
been the subject of unconstitutional policies on the part of Warren.
Even if those prior policies were unconstitutional, plaintiffs provide no
reason

why

those

policies

would

28

make

the

existence

of

an

unconstitutional policy regarding medical marijuana more likely to
exist.
Finally, plaintiffs rely on the following quote, given by Green to a
newspaper:
“The mayor’s job, and my job, is to provide safe
neighborhoods. The worst thing is to not be able to live in
peace in your house,” Green said. “I think we all agree what
the problem is. We all agree the problem is the mandate
allows there to be a caregiver-to-patient relationship in
residential areas.”
(Dkt. 94-12 at 2.) This, plaintiffs argue, establishes that Green and
Fouts “would together play a policy role in fighting the application of
the state law on medical marijuana.” (Dkt. 94 at 23.) Even if this were
the case, it does not establish the existence of a policy or that either
Green or Fouts were the final policymakers as to any such policy.
Further, the Hoover Road property is zoned for commercial use, not
residential use.
Plaintiff/counsel Michael Greiner has also filed an affidavit under
Fed. R. Civ. P. 56(d), in support of his argument that plaintiffs should
be permitted to depose Fouts. A party opposing summary judgment
must show “by affidavit or declaration that, for specified reasons, it
29

cannot present facts essential to justify its opposition.” Fed. R. Civ. P.
56(d). “Rule 56(d) does not permit a ‘fishing expedition,’ in which one
party simply hopes to uncover some evidence that may help its case.”
Peltier v. Macomb Cnty., Mich., Case No. 10-cv-10796, 2011 WL
3320743 at *2 (E.D. Mich. Aug. 2, 2011) (citing Duffy v. Wolle, 123 F.3d
1026, 1041 (8th Cir. 1997) and Wappler v. Bravard, 2008 WL 434037 at
*10 (W.D. Mich. 2008)).
At this stage, plaintiffs have not alleged the existence of a policy
that would give rise to their claim of liability under § 1983. Greiner
also acknowledges that “much of the documentary evidence” plaintiffs
rely on, including the aforementioned news articles, “is not admissible
in Court.” (Dkt. 83 at 7.) Greiner also does not argue that Fouts is a
final policymaker whose proposed policies would expose Warren to
liability.

Plaintiffs have not presented specific reasons for Fouts’

deposition, and have not described the essential facts Fouts possesses
that would give rise to a cause of action.
Further, plaintiffs have failed to allege the existence of any policy
that would give rise to a colorable claim of municipal liability that could
be asserted via § 1983. As the affidavit states, plaintiffs’ theory is that
30

their “rights have been denied them despite state law to the contrary.”
(Id. at 6.) To justify discovery pursuant to a Rule 56(d) affidavit, a
party must “articulate more than simply the theory it intended to prove
from the beginning.” Reliance Mediaworks (USA) Inc. v. Giarmarco,
Mullins & Horton, P.C., 549 F. Appx. 458, 464 (6th Cir. 2013). The
denial of additional discovery is further justified where the theory
articulated – in this case, that violation of a state law also constitutes a
violation of federal constitutional rights – could not lead to recovery for
the party seeking the discovery, regardless of what is discovered.
D. Motion for Order of Contempt
On March 8, 2017, the Court enjoined plaintiffs from any noncompliant uses of the property from which both Legal Real Estate, LLC
and MSTC were operating. (Dkt. 77.) This meant that the MSTC could
no longer operate out of the building at all, and only Legal Real Estate,
LLC could operate in the building out of Suite A. On April 28, 2017,
Warren filed a motion to enforce the judgment, which was actually a
motion for an order deeming Greiner, Mazurkiewicz, and Felix to be in
contempt of court, and seeking $4,000 in sanctions along with

31

permission to seize all marijuana and related items at the property.
(Dkt. 88.)
Warren states that it attempted to schedule an annual fire
inspection on March 16, 2017, but moved that inspection to March 23,
2017 at 1:30 P.M. at the request of plaintiffs. (Id. at 2-3.) On March 23,
2017, an attorney for Warren, the Fire Marshal, and a Fire Inspector
went to the property. (Id. at 3.) Warren states that the three knocked
and waited outside for over forty minutes, but nobody answered them.
(Id.) They left voicemails for plaintiff Michael Greiner, as well. (Id.)
Warren’s attorney, Robert Morris, submitted an affidavit that he
witnessed Felix approach the property, park on a side street, and then
enter the property after Warren representatives left. (Id. at 3-4; Dkts.
88-6, 88-7.) At or around 2:30 P.M., Greiner called Morris and said that
Mazurkiewicz and Felix were inside at the time Warren representatives
were attempting to enter. (Dkt. 88 at 4.)
Warren noticed another inspection attempt for March 30, 2017 at
1:30 P.M. (Id.) Warren’s representatives gained access and inspected
only Suite A and part of the basement, which Mazurkiewicz confirmed
was still a grow room to which only Felix had keys.
32

(Id.)

Greiner

refused the representatives access to the rest of the building absent a
more specific court order. (Id. at 5.) On April 11, 2017, the Court held a
telephonic status conference with the parties, during which Greiner
agreed to make the entire property accessible to Warren officials for the
purposes of inspection. (Id.)
Another inspection was noticed for April 24, 2017 at 1:30 P.M.
(Id.) During the inspection, the Fire Marshal provided a copy of the
inspection report from March 30, 2017, noting fire safety violations on
the property.

(Id. at 6.)

Mazurkiewicz and Felix admitted they

maintained three locked, operational marijuana grow rooms in the
basement.

(Id.)

Warren moved for contempt on April 28, 2017,

following this inspection.

(Dkt. 88.)

They seek an order finding

plaintiffs in contempt and sanctions of $4,000, among other relief. (Id.
at 8.)
In response, plaintiffs state that Mazurkiewicz discussed moving
the marijuana plants out of the building at some point with Morris, and
that Morris told him that Warren “understood that it would take some
time to fully move out, and they did not expect our plants out
immediately.” (Dkt. 95-2 at 2.) Mazurkiewicz also stated that he and
33

Felix were in the building at the time of the first inspection, and left
their phone numbers on the front door for the inspectors to call. (Id.)3
On May 31, 2017, the Court issued an order requiring defendants
to provide all inspection reports and a checklist of all repairs or other
actions plaintiffs were required to take to remove all warning signs
Warren had placed on the building.

(Dkt. 98.)

The reports and

checklist were due by June 2, 2017. On June 2, 2017, Warren filed a
report containing the inspection reports and a checklist of nine actions
to be taken to remove the warning signs. (Dkt. 99; id. at 4.)
On August 28, 2017, the Court issued an order requiring
supplemental briefing regarding the status of plaintiffs’ compliance
with the inspection reports and the Court’s previous orders. (Dkt. 115.)
The parties filed their supplemental briefs on September 11, 2017.
(Dkts. 120, 121.)
Warren stated in its supplemental brief that it noticed another
inspection for August 16, 2017 at 9:00 A.M. (Dkt. 121 at 5.) Greiner
challenged the city’s authority to engage in another inspection, and
stated he would only permit Morris, but not Warren’s inspectors, to re-

3

This information all comes from an unexcuted affidavit. (Dkt. 95-2.)

34

inspect the property. (Id.) When Morris, the Fire Marshal, and the
Fire Inspector showed up, Greiner would only permit Morris inside to
confirm that the marijuana plants were removed, but stated that the
Fire Department would need a warrant to inspect the property. (Id.)
The warning signs that were up had been removed by someone other
than Warren officials. (Id.)
Plaintiffs state that they were never provided with a checklist of
items to fix with the June 2, 2017 report. (Dkt. 120 at 2.) Plaintiffs do
not dispute Warren’s account of events, but state that the failure to
provide a checklist itself violated the Court’s order, and weighs against
a finding of contempt.
A federal court may impose civil sanctions on a party who fails to
comply with a lawful, specific court order. 18 U.S.C. § 401(3). “With
respect to civil contempt proceedings, judicial sanctions may, in a
proper case, be employed for either or both of two purposes; to coerce
the defendant into compliance with the court's order, and to compensate
the complainant for losses sustained.” Elec. Workers Pension Tr. Fund
of Local Union # 58, IBEW v. Gary's Elec. Serv. Co., 340 F.3d 373, 379

35

(6th Cir. 2003) (citing United States v. United Mine Workers of Am., 330
U.S. 258, 303-04 (1947)).
“In order to hold a litigant in contempt, the movant must produce
clear and convincing evidence that shows that he violated a definite and
specific order of the court requiring him to perform or refrain from
performing a particular act or acts with knowledge of the court's order.”
Elec. Workers, 340 F.3d at 379. Once this evidence has been produced,
it is the non-movant’s burden to show that he cannot presently comply
with the court’s order. United States v. Rylander, 460 U.S. 752, 757
(1983). To meet this burden, “a [party] must show categorically and in
detail why he or she is unable to comply with the court's order.” Rolex
Watch

U.S.A.,

Inc.

v.

Crowley, 74

F.3d

716,

720

(6th

Cir.

1996) (quotation omitted).
At a telephonic status conference, the Court asked Warren to
provide an itemized description of their claimed damages from the
actions it contends constitute contempt of the Court’s order.

On

February 9, 2018, Warren instead filed a declaration from its counsel
setting forth the general fees and costs it accrued during this litigation
as a whole. (Dkt. 123.)
36

First, Warren has not shown that sanctions would coerce plaintiffs
into complying with the Court’s order, which required plaintiffs to
permit inspections and bring the property into compliance with the
inspection reports. Instead, Warren seeks additional powers that would
allow it to remove and destroy plaintiffs’ marijuana and related items.
What Warren seeks is not an order that would coerce compliance with
the Court’s original directive, but instead an entirely new directive that
would permit Warren to take actions never contemplated at the time of
the first order.

The Court declines to enforce sanctions on these

grounds.
Second, Warren has failed to show specific, compensable losses
related to plaintiffs’ alleged contempt of the Court’s order.

Warren

seeks $4,000 in damages arising from attempts to enforce the Court’s
prior order. What Warren submitted as proof of those damages is a
declaration setting forth nearly $323,000 in fees and costs incurred from
the inception of this litigation, none of which are specific to Warren’s
enforcement efforts arising from that prior order. The Court cannot
award money to compensate Warren for losses stemming from

37

plaintiffs’ actions when it has not specifically demonstrated any losses it
suffered arising from those actions.
Warren’s motion for an order holding plaintiffs in contempt and
for sanctions is denied.
IV.

Conclusion

For the reasons set forth above, it is hereby ordered that:
Defendants’ motions for summary judgment (Dkts. 82, 110) are
GRANTED;
Warren’s motion for an order of contempt (Dkt. 88) is DENIED;
and
This case is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
Dated: April 17, 2018
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on April 17, 2018.
s/Shawna Burns
SHAWNA BURNS
Case Manager
38