United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT 
STEPHEN J. MURPHY, III, UNITED STATES DISTRICT JUDGE
November 30, 2017, Plaintiffs Eldreed Berry, Ruth Berry, and
Michael Tennon filed their complaint against Defendants the
City of Detroit ("Detroit"), Lynn Moore, and John
Doe Officers 1-10. ECF 1. Plaintiffs later amended their
complaint and named the John Doe officers: Adam Sklarski, C.
Moreau, J. Hebner, Roy Harris, Jeffery Wawrzyniak, William
Morrison, Joseph Castro, Bashawn Gaines, Sadie Howell, and
Ryan Paul ("Officer Defendants"). ECF 12.
Plaintiffs sued the Officer Defendants in both their official
and individual capacities. ECF 12, PgID 106-07. They brought
the thirteen claims under 42 U.S.C. § 1983 for
violations of their civil rights.
alleged that on April 25, 2014, Moore and Harris (1)
unlawfully searched Tennon's home and (2) unlawfully
seized Tennon's personal property. Id. at
119-20. They further alleged that on January 26, 2016: (3)
Sklarski maliciously prosecuted Tennon by issuing citations
for no license and no insurance; (4) Moore maliciously
prosecuted Tennon by charging him with loitering; and Moore,
Sklarski, Moreau and Hebner (5) unlawfully detained or
arrested Tennon, (6) unlawfully detained or arrested Eldreed
Berry, (7) unlawfully searched Eldreed Berry's person,
(8) unlawfully searched Tennon's person, (9) unlawfully
searched Ruth Berry's vehicle, (10) unlawfully seized
Ruth Berry's vehicle, and (11) unlawfully seized
Tennon's cash. Id. at 120-24. Finally, they
allege that on August 15, 2016, Harris, Wawrzyniak, Morrison,
Castro, Gaines, Howell, and Paul (12) unlawfully entered
Eldreed Berry's home and (13) unlawfully seized his
money. Id. at 124-25.
October 15, 2018, the Clerk of the Court entered default
against Defendant Moreau. ECF 30. On January 10, 2019,
Defendants filed a motion for summary judgment. ECF 33. The
Court has reviewed the briefs and finds that a hearing is
unnecessary. See E.D. Mich. LR 7.1(f)(2). For the
reasons below, the Court will grant Defendants' motion
for summary judgment.
April 25, 2014, Defendant Moore and other officers executed a
search warrant at 19745/19751 Biltmore. ECF 33-2, PgID 505;
see also Id. at 511-513 (search warrant). Plaintiff
Tennon is the owner of 19745 Biltmore. See ECF 1-1,
PgID 29. The affiant to the search warrant affidavit stated
that, on April 24, he observed five drug transactions in
twenty-five minutes at the location. ECF 33-2, PgID 512.
Nobody was present when officers executed the search warrant.
Id. at 505. Officers recovered empty
"ziplock" bags "used for marijuana
packaging." Id. Officers described the bags as
one bag holding several smaller bags. Id. at 506.
The inside bags were about the size of a quarter. ECF 34-2,
PgID 620. Moore had seen this type of small bag used only for
January 26, 2016, Defendants Moore, Szklarski, Moreau, and
Hebner were traveling through a "special attention high
narcotics area" when they observed a man named Jeremiah
Rhodes approaching a 2005 silver Kia Sorrento-parked, but
running-at 19745 Biltmore; Plaintiff Tennon sat in the
driver's seat. ECF 1-2, PgID 31. The car was parked on
the driveway, blocking the sidewalk. ECF 34-2, PgID 638.
Moore observed Rhodes holding a Ziploc bag of marijuana and
Tennon holding cash. ECF 1-2, PgID 31. Moore concluded, based
on his training and experience and performance of raids at
the location, that Rhodes and Tennon were attempting a drug
transaction. Id. Officers apprehended both men. ECF
33-3, PgID 516-17. Moore cited Rhodes for marijuana
possession and confiscated six baggies of marijuana from
Rhodes. ECF 1-2, PgID 31; ECF 34-2, PgID 639-40.
was an open container of alcohol in the vehicle. ECF 1-2,
PgID 31. Moore cited Tennon for "loitering in a place of
illegal occupation, a known narcotics location." ECF
1-1, PgID 23. Tennon was also cited for having no insurance
and no license. ECF 34-13, 34-14. Detroit police confiscated
the Kia Sorrento for forfeiture proceedings and $579 in cash.
ECF 1-2, PgID 31.
Ruth Berry acknowledged the notice of seizure of the Kia
Sorrento. ECF 4-3. On September 9, 2016, the Wayne County
Circuit Court entered a consent judgment of forfeiture in the
matter concerning the Kia Sorrento and $579 in cash. ECF 4-6.
pleaded guilty to his drug offense. ECF 33-5, PgID 539.
Tennon's charges were dismissed because Lynn did not
appear at the evidentiary hearing. See ECF 33, PgID
497; ECF 34-2, PgID 643-44.
declared in an affidavit that he was merely hanging out with
friends and was not engaging in illegal activity. ECF 34-3,
PgID 692. Eldreed Berry also stated in an affidavit that he
was present outside Tennon's residence during the January
26, 2016 incident and was arrested and searched. ECF
August 15, 2016, Defendants Harris, Wawrzyniak, Morrison,
Gaines, Howell, and Paul executed a narcotic search warrant
at 19484 Gilchrist and confiscated $344 in cash. ECF 12-7,
PgID 149; ECF 12-8, PgID 150; see also ECF 33-4,
PgID 534-36 (search warrant). Defendant Castro stated in the
search warrant affidavit that he had observed a controlled
transaction two days before the search warrant was executed.
See ECF 33-4, PgID 534-36; ECF 34-15, PgID 976-77
(activity log). Plaintiff Eldreed Berry and other
individuals, including minors, were at the Gilchrist
residence at the time. ECF 12-7, PgID 149. Officers forced
entry into the home after receiving no response when they
announced their presence. ECF 12-8, PgID 150. Eldreed Berry
now asserts that he is not a drug dealer and that drugs are
not sold in his home on Gilchrist. ECF 34-4, PgID 696.
seem to allege that the affidavits supporting the search
warrants were falsified, ECF 12, PgID 118, but they do not
point to evidence showing that the relevant search warrants
11, 2016, Plaintiff Tennon filed a FOIA request that asked
for Detroit police records concerning 19745 Biltmore and
Rhodes; the government responded on October 27,
2016. ECF 34-1. Plaintiff Tennon alleges that he did not know
that his home was searched on April 15, 2014 in his absence
until he received the results of his FOIA request. ECF 34,
PgID 549. Detroit Police's interview notes, however,
suggest that Tennon was aware of the search shortly after it
took place because he filed a complaint about it.
See ECF 35, PgID 997.
Court may grant summary judgment "if 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). In order to show that a fact is, or is
not, genuinely disputed, both parties are required to either
"cit[e] to particular parts of materials in the
record" or "show that the materials cited do not
establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact." Fed.R.Civ.P. 56(c)(1).
is "material" for purposes of summary judgment if
proof of that fact would establish or refute an essential
element of the cause of action or defense. Kendall v.
Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984). A dispute
over material facts is "genuine" "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
may not judge the evidence ...