United States District Court, E.D. Michigan, Southern Division
Elizabeth A. Stafford U.S. Magistrate Judge.
AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' JOINT MOTION FOR SUMMARY
JUDGMENT ; DENYING PLAINTIFFS' MOTION
FOR LEAVE TO FILE SECOND AMENDED COMPLAINT ;
OVERRULING PLAINTIFFS' OBJECTION TO
MAGISTRATE JUDGE'S ORDER ON MOTION TO
COMPEL ; AND DENYING PLAINTIFFS' MOTION TO
AMEND/CORRECT SCHEDULING ORDER 
J. TARNOW, SENIOR UNITED STATES DISTRICT JUDGE.
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.
Opinion and Order resolves several pending motions, all of
which have been fully briefed. In February 2017, Plaintiffs
filed a Motion to Compel , 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 SOI#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 . Plaintiffs
filed an Objection to the Magistrate Judge's Order 
on May 16, 2017. The next day, Plaintiffs filed a Motion to
Amend Scheduling Order to Extend Discovery Cutoff by 45 Days
filed a Motion for Summary Judgment  on June 16, 2017.
Plaintiffs filed a Motion for Leave to File a Second Amended
Complaint  on July 20, 2017. A hearing on the pending
motions took place on January 23, 2018.
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
• The Motion is GRANTED as to
Plaintiffs' federal and state law claims against the City
• 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
Court DENIES Plaintiffs' Motion for
Leave to File Second Amended Complaint ,
OVERRULES Plaintiffs' Objection to the
Magistrate Judge's Order on the Motion to Compel ,
and DENIES Plaintiffs' Motion to
Amend/Correct Scheduling Order .
The anonymous tip, the confidential informant's attempted
purchase, and Officer Fox's surveillance
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,  where Joel Castro and Nicole Motyka lived.
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 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 46:13-25. 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).
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.
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 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
Hurd later determined that the seller was Chris Bullman,
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). 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.
The execution of the search warrant
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 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.
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.
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).
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.
The police officers stop Alonzo Bullman
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 Bullman 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.
Defendants' Motion for Summary Judgment
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).
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
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 requirement. Pray v.
City of Sandusky, 49 F.3d 1154, 1157 (6th Cir. 1995)
(citing Anderson v. Creighton, 483 U.S. 635, 640
Joel Castro and Nicole Motyka
The search of 5437 Springwells
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.
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