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Berry v. Moore

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

July 25, 2019

ELDREED BERRY, et al., Plaintiffs,
LYNN MOORE, et al., Defendants.



         On 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.

         They 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.

         On 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.


         On 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 drugs. Id.

         On 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.

         There 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.

         Plaintiff 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.

         Rhodes 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.

         Tennon 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 34-4.[2]

         On 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).[3] 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.

         Plaintiffs 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 were falsified.

         On May 11, 2016, Plaintiff Tennon filed a FOIA request that asked for Detroit police records concerning 19745 Biltmore and Rhodes;[4] 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.


         The 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).

         A fact 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 ...

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