United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT  AND
STRIKING INITIAL VERSION OF THE MOTION 
STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE.
23, 2017, Plaintiffs filed their complaint under 42 U.S.C.
§ 1983 and alleged that Defendants: (1) used excessive
force in violation of Plaintiffs' Fourth and Fourteenth
Amendment rights, (2) entrapped Plaintiffs by estoppel in
violation of their due process rights, (3) discriminated
against female Plaintiffs on the basis of sex in violation of
the Elliot-Larsen Civil Rights Act, (4) maliciously and
harassingly destroyed and damaged Plaintiffs' property in
violation of Michigan Penal Code § 750.147b, (5)
assaulted and battered Plaintiffs, (6) intentionally
inflicted emotional distress upon Plaintiffs, (7) failed to
supervise and train officers in a grossly negligent manner,
(8) took and retained Plaintiffs' property in violation
of the Fourteenth Amendment's due process clause, and (9)
conspired to interfere with Plaintiffs' civil rights in
violation of 42 U.S.C. § 1985. ECF 1, PgID 21–32.
Plaintiffs also sought to enjoin Defendant St. Clair County
Drug Task Force ("SCCDTF") "from receiving
federal funds, support, equipment or participation from any
agency of the federal government." Id. at 30.
September 29, 2017, Plaintiffs voluntarily dismissed
Defendant Agent Rogers. ECF 14. On December 12, 2017, the
Court granted Defendant Melissa Keyes's motion to dismiss
and granted in part and denied in part the remaining
Defendants' motion to dismiss. ECF 15. "At the
motion hearing, Plaintiffs agreed to voluntarily dismiss
Count Nine in its entirety." Id. at 303.
Plaintiffs claim seeking to enjoin SCCDTF from receiving
federal funds has therefore been dismissed. The Court also
dismissed the battery claims in their entirety and dismissed
the assault claims as to all Plaintiffs except the minor
Shattuck Plaintiffs. Id. at 305–06.
February 1, 2019, the remaining Defendants filed their motion
for summary judgment on all remaining claims, and, on
February 18, 2019, with consent from Plaintiffs, Defendants
re-filed their motion in a searchable format. ECF 26, 29, 30.
The Court reviewed the briefs closely and finds that a
hearing is unnecessary. E.D. Mich. LR 7.1(f). For the reasons
below, the Court will grant in part and deny in part the
motion and enter partial summary judgment in favor of
Defendants. And because the initial motion for summary
judgment, ECF 26, was replaced by the re-filed motion, ECF
30, the Court will also strike the initial motion.
are five adult Plaintiffs in this case-Ginnifer Hency, Dean
Hency, Dale Shattuck, Annette Shattuck, and Lori Lee. ECF 1,
PgID 4. There are also several minors named as Plaintiffs.
Id. The remaining Defendants are John Maxey, James
Spadafore, Jason Sklba, Lt. King, Dep. Welch, Dep. Tunich,
Dep. Garvin, Dep. Singleton, Dep. Stoyan, Kevin Manns, Dep.
Ryan, Det. Black, and John Does-all deputy sheriffs and
members of the SCCDTF-as well as St. Clair County Sheriff Tim
Donnellon, SCCDTF, and St. Clair County. Id. at
and Dale Shattuck were both licensed, registered caregivers
under the Michigan Medical Marihuana Act
("MMMA")-Dale had four patients and Annette had
one. ECF 30, PgID 1314. In March 2014, the Shattucks opened a
"Medical Marijuana Compassion Center" called
"DNA Alternative Wellness Center" ("DNA
Wellness") in Kimball, Michigan. Id. at
1315–16. Plaintiffs' claims arise out of searches
conducted by Defendants on July 28, 2014, at DNA Wellness,
another address associated with DNA Wellness ("5159
Lapeer"), the Hencys' home, and the Shattcuks'
home. ECF 1, PgID 11–16. All four searches were
conducted pursuant to warrants. See ECF 30-12, 30-13, 30-14,
30-15, 30-16, 30-17. Plaintiffs assert nine remaining claims
arising from the searches, as outlined above. All Defendants
jointly moved for summary judgment. ECF 30.
Court must grant a motion for 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). The moving party
must identify specific portions of the record "which it
believes demonstrate the absence of a genuine issue of
material fact." Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). Once the moving party has met its
burden, the non-moving party may not simply rest on the
pleadings but must present "specific facts showing that
there is a genuine issue for trial." Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis omitted).
is material 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). In
considering a motion for summary judgment, the Court must
view the facts and draw all reasonable inferences "in
the light most favorable to the non-moving party."
60 Ivy St. Corp. v. Alexander, 822 F.2d 1432, 1435
(6th Cir. 1987) (citations omitted).
remaining Defendants move for summary judgment on all
remaining claims. The Court will therefore address each claim
Fourth and Fourteenth Amendment Claims
Plaintiffs allege several violations of their Fourth
Amendment rights, as incorporated through the Fourteenth
Amendment. Although they title their first claim only
"Violation of Fourth and Fourteenth Amendments
(Excessive force), " Plaintiffs allege that Defendants
violated their: (a) "[f]reedom from unreasonable
seizure, " (b) "right to be free from unreasonable
searches, " (c) "[f]reedom from the use of
unreasonable, unjustified and excessive force, " (d)
"[f]reedom from deprivation of liberty and property
without due process of law, " (e) "[f]reedom from
summary punishment, " (f) "[f]reedom from the
prevention of officers from using excessive force, " and
(g) "[f]reedom from arbitrary governmental activity
which shocks the conscience of a civilized society." ECF
1, PgID 21–22.
Failure to Specify Acts of Individual Defendants
argue that they are entitled to summary judgment based on
qualified immunity for the constitutional claims because
"Plaintiffs have failed to specify which Defendant
engaged in specific conduct that they claim violated their
constitutional rights." ECF 30, PgID 1338. When multiple
individual defendants assert a qualified immunity defense,
the Court must separately assess the allegations and evidence
against each defendant. See Bishop v. Hackel, 636
F.3d 757, 768 (6th Cir. 2011). And when a plaintiff cannot
"identify the specific officers who allegedly engaged
in" the unlawful conduct, summary judgment in favor of
each individual defendant is proper. Mobley v. City of
Detroit, 938 F.Supp.2d 669, 686 (E.D. Mich. 2012).
Plaintiffs fail to specify which individual Defendants
undertook which allegedly unconstitutional actions, with a
few exceptions that the Court will address below. And in
their response to the motion for summary judgment, Plaintiffs
do not attempt to remedy their failure to make specific
allegations against specific Defendants for their various
Fourth and Fourteenth Amendment claims. Instead, Plaintiffs
argue that the question of who stole certain items "is
up to [the] jury" and imply that they think Officer
Sklba may have gone into the Hencys' house, despite
citing no evidence for that proposition and admitting that
Officer Sklba denied doing so. ECF 34, PgID 2260–61.
Plaintiffs seem to misunderstand the legal standard. As
explained above, to survive summary judgment Plaintiffs must
identify specific officers that did each allegedly
only factual allegations regarding the searches in which they
list specific conduct undertaken by specific Defendants are
that: (1) Officer George posed as a store employee at DNA
Wellness, greeted Ms. Hency, and sold marijuana to customers,
(2) Officer George and Sergeant Spadafore together searched
Ms. Hency's backpack and arrested her, (3) Officer Manns
handcuffed Ms. Hency and made an inappropriate comment to
her, (4) Deputy Maxey applied for the search warrant for the
Hencys' home, and (5) "Sherriff Donnellon and Agent
Maxey are also individually liable as supervisors who
directly participated in the violations of Plaintiffs'
rights." ECF 1, PgID 12–16, 21–22.
Officer George is not a defendant in the case. And there is
no supervisory liability under § 1983. See Ashcroft
v. Iqbal, 556 U.S. 662, 677 (2009). The Court will
analyze below the two specific allegations Plaintiffs made
against specified individual defendants-that Officer Manns
handcuffed Ms. Hency and that Deputy Maxey applied for the
search warrant for the Hencys' home-as well as the
evidence Plaintiffs have presented of specific conduct by
Officer Manns and Sergeant Spadafore. All individual
Defendants other than Officer Manns, Deputy Maxey, and
Sergeant Spadafore are entitled to summary judgment on
Plaintiffs' various Fourth and Fourteenth Amendment
claims because Plaintiffs failed to allege or demonstrate who
did what, and "each Government official . . . is only
liable for his or her own misconduct." Iqbal,
556 U.S. at 677.
first specific factual allegation against a specific
Defendant regarding the raids is that "Deputy Maxey
applied for a Narcotics Search Warrant for Ms. Hency's
home[.]" ECF 1, PgID 13. To determine whether Deputy
Maxey is entitled to qualified immunity, the question is
whether the affidavit failed to establish probable cause and
whether "a reasonably well-trained officer in
petitioner's position would have known that his affidavit
failed to establish probable cause and that he should not
have applied for the warrant." Malley v.
Briggs, 475 U.S. 335, 345 (1986). An application of that
sort would not be objectively reasonable because it would
"create the unnecessary danger of an unlawful
Deputy Maxey's affidavit supporting the search warrant
for the Hencys' home stated his experience that included
over twenty years of law enforcement experience and over 700
hours of training in narcotics enforcement and criminal and
human trafficking. ECF 30-17, PgID 1594. It then stated that
the SCCDTF, of which Deputy Maxey was a member, received
information in July 2011 "from the St. Clair County
Friend of Court" that the Hencys were "involved in
the manufacturing and distribution of [m]arijuana in the St.
Clair County area." Id. It further stated that
in December 2011, the SCCDTF received an anonymous tip
"that [Ms. Hency] had just completed a $3000 sale"
of marijuana. Id. The affidavit next recounted that
in July 2013, the SCCDTF was informed that the Hencys'
home was "involved in the production of [m]arijuana,
" including "information from the Thumb Narcotics
Unit that" the Hencys' home housed a
"[m]arijuana grow operation." Id. at 1595.
Based on the above information, the SCCDTF had "applied
for and received a valid narcotics ...