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Heffner v. City of Warren

United States District Court, E.D. Michigan, Southern Division

April 17, 2018

Marianne Heffner, Bryan Mazurkiewicz, Michigan Safe Transfer Center, LLC, Legal Real Estate, LLC, and Michael Greiner, Plaintiffs,
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]

          JUDITH E. LEVY UNITED STATES DISTRICT JUDGE.

         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.)

         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. Laws § 333.26423(1). 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. 79-3.) 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 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.)

         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 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 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 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 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 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.

(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 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 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 ...


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