Hency v. St. Clair County

          OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [30] AND STRIKING INITIAL VERSION OF THE MOTION [26]

          STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE.

         On June 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.

         On 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.

         On 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.

         BACKGROUND

         There 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 5–9.

         Annette 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.

         LEGAL STANDARD

         The 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).

         A fact 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).

         DISCUSSION

         All remaining Defendants move for summary judgment on all remaining claims. The Court will therefore address each claim in turn.

         I. Fourth and Fourteenth Amendment Claims

         First, 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.

         A. Failure to Specify Acts of Individual Defendants

         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).

         Here, 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 unconstitutional act.

         Plaintiffs' 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.

         But 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.

         B. Deputy Maxey

         Plaintiffs' 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 arrest." Id.

         Here, 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 ...