UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

JOSHUA HOWARD ELZINGA,

Plaintiff, HON. THOMAS L. LUNDINGTON

vs. Case No.: 15-cv-10808-TLL-PTM

Magistrate Judge Patricia T. Morris

BAY CITY PUBLIC SAFETY OFFICER

DONALD ALDRICH, BAY CITY PUBLIC

SAFETY OFFICER BRIAN RITCHEY;

BAY CITY PUBLIC SAFETY OFFICER

KEATH BARTYNSKI, and CARRIER

SUE ALDRICH, Jointly and Severally,

Defendants.

THOMAS M. LOEB (P25913)

Attorney for Plaintiff

32000 Northwestern Hwy., Ste. 170

Farmington Hills, MI 48334

(248) 851-2200

tmloeb@mich.com

JAMES E. TAMM (P38154)

Attorney for Defendant Aldrich

40701 Woodward Avenue, Ste. 105

Bloomfield Hills, MI 48304

(248) 433-2000

jetamm@odtlegal.com

THOMAS L. FLEURY (P24064)

Attorney for Defendant Bartynski

26555 Evergreen, Ste. 1240

Southfield, MI 48076

(313) 965-0857

tlf@kellerthoma.com

PAUL L. NYSTROM (P57067)

DAVID J. COUNCIL (P73163)

Attorney for Carrie Sue Aldrich

39577 Woodward Ave., Ste. 300

Bloomfield Hills, MI 48304

(248) 203-0700

pnystrom@dykema.com

dcouncil@dykema.com

DEFENDANT DONALD ALDRICH’S ANSWER TO PLAINTIFF’S COMPLAINT

Defendant Donald Aldrich, by and through his attorneys, O’Connor, DeGrazia, Tamm & 

O’Connor, P.C., for his Answer to Plaintiff’s Complaint, states as follows:

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Preliminary Statement

1. Defendant Donald Aldrich denies the allegations contained in this paragraph in 

the form, manner pled, and in fact as untrue.

2. Defendant Donald Aldrich denies the allegations contained in this paragraph in 

the form, manner pled, and in fact as untrue.

Jurisdiction and Venue

3. Defendant neither admits nor denies the same for lack of information sufficient to 

form a belief as to the truth of the allegations and Plaintiff is left to his proofs at trial.

4. Defendant neither admits nor denies the same for lack of information sufficient to 

form a belief as to the truth of the allegations and Plaintiff is left to his proofs at trial.

Plaintiff and Defendants

5. Defendant neither admits nor denies the same for lack of information sufficient to 

form a belief as to the truth of the allegations and Plaintiff is left to his proofs at trial.

6. Defendant Donald Aldrich admits that on the date at issue in the Complaint, he 

was a Bay City Public Safety Officer, but denies that he was on duty or acting in his capacity as 

a Bay City Police Officer at any time relevant to Plaintiff’s Complaint. Mr. Aldrich resided in 

the Eastern District of Michigan.

7. Defendant neither admits nor denies the same for lack of information sufficient to 

form a belief as to the truth of the allegations and Plaintiff is left to his proofs at trial.

8. Defendant Donald Aldrich neither admits nor denies the same for lack of 

information sufficient to form a belief because it is not directed toward to this Defendant.

9. The allegations contained in this paragraph are denied in the form, in the manner

pled, and in fact as untrue.

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10. The allegations contained in this paragraph are denied in the form, in the manner 

pled, and in fact as untrue.

11. Defendant Donald Aldrich neither admits nor denies the same for lack of 

information sufficient to form a belief because it is not directed toward to this Defendant.

Facts

12. No contest.

13. Defendant neither admits nor denies the same for lack of information sufficient to 

form a belief as to the truth of the allegations and Plaintiff is left to his proofs at trial.

14. Defendant neither admits nor denies the same for lack of information sufficient to 

form a belief as to the truth of the allegations and Plaintiff is left to his proofs at trial.

15. Defendant neither admits nor denies the same for lack of information sufficient to 

form a belief as to the truth of the allegations and Plaintiff is left to his proofs at trial.

16. Defendant neither admits nor denies the same for lack of information sufficient to 

form a belief as to the truth of the allegations and Plaintiff is left to his proofs at trial.

17. Defendant neither admits nor denies the same for lack of information sufficient to 

form a belief as to the truth of the allegations and Plaintiff is left to his proofs at trial.

18. Defendant neither admits nor denies the same for lack of information sufficient to 

form a belief as to the truth of the allegations and Plaintiff is left to his proofs at trial.

19. No contest.

20. Defendant Donald Aldrich neither admits nor denies the same for lack of 

information sufficient to form a belief because it is not directed toward to this Defendant.

21. Defendant neither admits nor denies the same for lack of information sufficient to 

form a belief as to the truth of the allegations and Plaintiff is left to his proofs at trial.

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22. Donald Aldrich admits that at some point during the evening of May 1, 2013, he 

was advised that Plaintiff had taken a Facebook photograph depicting Officer Brian Ritchey. 

23. Defendant Donald Aldrich neither admits nor denies the same for lack of 

information sufficient to form a belief because it is not directed toward to this Defendant.

24. Defendant Donald Aldrich neither admits nor denies the same for lack of 

information sufficient to form a belief because it is not directed toward to this Defendant.

25. No contest.

26. Defendant neither admits nor denies the same for lack of information sufficient to 

form a belief as to the truth of the allegations and Plaintiff is left to his proofs at trial.

27. Defendant neither admits nor denies the same for lack of information sufficient to 

form a belief as to the truth of the allegations and Plaintiff is left to his proofs at trial.

28. Defendant Donald Aldrich neither admits nor denies the same for lack of 

information sufficient to form a belief because it is not directed toward to this Defendant.

29. Defendant Donald Aldrich neither admits nor denies the same for lack of 

information sufficient to form a belief because it is not directed toward to this Defendant.

30. Defendant Donald Aldrich neither admits nor denies the same for lack of 

information sufficient to form a belief because it is not directed toward to this Defendant.

31. The allegations contained in this paragraph are denied in the form, in the manner 

pled, and in fact as untrue.

32. Defendant Donald Aldrich admits that he engaged in a verbal exchange with 

Plaintiff.

33. Defendant Donald Aldrich denies the allegations contained in this paragraph as 

untrue.

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34. The allegations contained in this paragraph are denied in the form, in the manner 

pled, and in fact as untrue.

35. The allegations contained in this paragraph are denied in the form, in the manner 

pled, and in fact as untrue.

36. The allegations contained in this paragraph are denied in the form, in the manner 

pled, and in fact as untrue.

37. The allegations contained in this paragraph are denied in the form, in the manner 

pled, and in fact as untrue.

38. The allegations contained in this paragraph are denied in the form, in the manner 

pled, and in fact as untrue.

39. No contest.

40. Admitted.

41. Admitted.

42. Defendant Donald Aldrich neither admits nor denies the same for lack of 

information sufficient to form a belief because it is not directed toward to this Defendant.

43. Defendant Donald Aldrich neither admits nor denies the same for lack of 

information sufficient to form a belief because it is not directed toward to this Defendant.

44. Defendant neither admits nor denies the same for lack of information sufficient to 

form a belief as to the truth of the allegations and Plaintiff is left to his proofs at trial.

45. Defendant neither admits nor denies the same for lack of information sufficient to 

form a belief as to the truth of the allegations and Plaintiff is left to his proofs at trial.

46. Defendant Donald Aldrich neither admits nor denies the same for lack of 

information sufficient to form a belief because it is not directed toward to this Defendant.

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47. Defendant Donald Aldrich neither admits nor denies the same for lack of 

information sufficient to form a belief because it is not directed toward to this Defendant.

48. Defendant Donald Aldrich neither admits nor denies the same for lack of 

information sufficient to form a belief because it is not directed toward to this Defendant.

49. Defendant Donald Aldrich neither admits nor denies the same for lack of 

information sufficient to form a belief because it is not directed toward to this Defendant.

50. Defendant Donald Aldrich neither admits nor denies the same for lack of 

information sufficient to form a belief because it is not directed toward to this Defendant.

51. Defendant Donald Aldrich neither admits nor denies the same for lack of 

information sufficient to form a belief because it is not directed toward to this Defendant.

52. Defendant neither admits nor denies the same for lack of information sufficient to 

form a belief as to the truth of the allegations and Plaintiff is left to his proofs at trial.

53. Defendant neither admits nor denies the same for lack of information sufficient to 

form a belief as to the truth of the allegations and Plaintiff is left to his proofs at trial.

54. Defendant neither admits nor denies the same for lack of information sufficient to 

form a belief as to the truth of the allegations and Plaintiff is left to his proofs at trial.

55. Defendant neither admits nor denies the same for lack of information sufficient to 

form a belief as to the truth of the allegations and Plaintiff is left to his proofs at trial.

56. Defendant neither admits nor denies the same for lack of information sufficient to 

form a belief as to the truth of the allegations and Plaintiff is left to his proofs at trial.

57. The allegations contained in this paragraph are denied in the form, in the manner 

pled, and in fact as untrue.

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58. The allegations contained in this paragraph are denied in the form, in the manner 

pled, and in fact as untrue.

59. The allegations contained in this paragraph are denied in the form, in the manner 

pled, and in fact as untrue.

60. Defendant Donald Aldrich neither admits nor denies the same for lack of 

information sufficient to form a belief because it is not directed toward to this Defendant.

61. Defendant Donald Aldrich denies the allegations contained in this paragraph as 

untrue.

62. Defendant neither admits nor denies the same for lack of information sufficient to 

form a belief as to the truth of the allegations and Plaintiff is left to his proofs at trial.

63. Defendant neither admits nor denies the same for lack of information sufficient to 

form a belief as to the truth of the allegations and Plaintiff is left to his proofs at trial.

64. Defendant neither admits nor denies the same for lack of information sufficient to 

form a belief as to the truth of the allegations and Plaintiff is left to his proofs at trial.

65. Defendant neither admits nor denies the same for lack of information sufficient to 

form a belief as to the truth of the allegations and Plaintiff is left to his proofs at trial.

66. Defendant neither admits nor denies the same for lack of information sufficient to 

form a belief as to the truth of the allegations and Plaintiff is left to his proofs at trial.

67. Defendant neither admits nor denies the same for lack of information sufficient to 

form a belief as to the truth of the allegations and Plaintiff is left to his proofs at trial.

68. The allegations contained in this paragraph are denied in the form, in the manner 

pled, and in fact as untrue.

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69. Defendant neither admits nor denies the same for lack of information sufficient to 

form a belief as to the truth of the allegations and Plaintiff is left to his proofs at trial.

70. Defendant neither admits nor denies the same for lack of information sufficient to 

form a belief as to the truth of the allegations and Plaintiff is left to his proofs at trial.

71. Defendant denies the allegations contained in this paragraph as untrue.

72. Defendant denies the allegations contained in this paragraph as untrue.

a. Defendant denies the allegations contained in this paragraph as untrue.

b. Defendant denies the allegations contained in this paragraph as untrue.

c. Defendant denies the allegations contained in this paragraph as untrue.

d. Defendant denies the allegations contained in this paragraph as untrue.

e. Defendant denies the allegations contained in this paragraph as untrue.

WHEREFORE, Defendant Donald Aldrich requests this Honorable Court to enter a 

judgment of no cause for action together with an award of costs and attorney’s fees wrongfully 

incurred in defending this action.

O’CONNOR, DeGRAZIA, TAMM &O’CONNOR, P.C.

By: /S/ James E. Tamm

JAMES E. TAMM (P38154)

Attorney for Defendant Donald Aldrich

40701 Woodward Avenue, Ste. 105

Bloomfield Hills, MI 48304

(248) 433-2000

jetamm@odtlegal.com

Dated: April 27, 2015

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

JOSHUA HOWARD ELZINGA,

Plaintiff, HON. THOMAS L. LUNDINGTON

vs. Case No.: 15-cv-10808-TLL-PTM

Magistrate Judge Patricia T. Morris

BAY CITY PUBLIC SAFETY OFFICER

DONALD ALDRICH, BAY CITY PUBLIC

SAFETY OFFICER BRIAN RITCHEY;

BAY CITY PUBLIC SAFETY OFFICER

KEATH BARTYNSKI, and CARRIER

SUE ALDRICH, Jointly and Severally,

Defendants.

THOMAS M. LOEB (P25913)

Attorney for Plaintiff

32000 Northwestern Hwy., Ste. 170

Farmington Hills, MI 48334

(248) 851-2200

tmloeb@mich.com

JAMES E. TAMM (P38154)

Attorney for Defendant Aldrich

40701 Woodward Avenue, Ste. 105

Bloomfield Hills, MI 48304

(248) 433-2000

jetamm@odtlegal.com

THOMAS L. FLEURY (P24064)

Attorney for Defendant Bartynski

26555 Evergreen, Ste. 1240

Southfield, MI 48076

(313) 965-0857

tlf@kellerthoma.com

PAUL L. NYSTROM (P57067)

DAVID J. COUNCIL (P73163)

Attorney for Carrie Sue Aldrich

39577 Woodward Ave., Ste. 300

Bloomfield Hills, MI 48304

(248) 203-0700

pnystrom@dykema.com

dcouncil@dykema.com

DEFENDANT DONALD ALDRICH’S AFFIRMATIVE DEFENSES

Defendant Donald Aldrich, by and through his attorneys, O’Connor, DeGrazia, Tamm & 

O’Connor, P.C., for his Affirmative Defenses, states as follows:

1. Plaintiff has failed to state a claim upon which relief may be granted.

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2. Defendant Donald Aldrich was off-duty at the time of the occurrence and was not 

acting under color of state law.

3. At no time was Donald Aldrich a state actor giving rise to a claim under 42 

U.S.C. §1983.

4. The acts attributable to Donald Aldrich in Plaintiff’s Complaint did not deprive 

Plaintiff of a right secured by the Constitution or laws of the United States.

5. Defendant Donald Aldrich did not contact representatives of the Bay City Public 

Safety Department, Officer Brian Ritchey, or Officer Keath Bartynski, nor did he solicit any 

involvement of public safety officers on his behalf that would give rise to a claim under color of 

state law.

6. At all relevant times, Donald Aldrich was a private actor and his conduct was not 

fairly attributable to the state.

7. At no time did Donald Aldrich detain, pat down, or search Plaintiff, nor violate

any rights accorded to Plaintiff under the Fourth or Fourteenth Amendments to the United States 

Constitution.

8. Defendant Donald Aldrich did not direct any state official or public safety officer 

to search or arrest Plaintiff giving rise to a claim under the Fourth or Fourteenth Amendments to 

the United States Constitution.

9. At no time did Donald Aldrich interfere with Plaintiff’s right to freedom of 

speech.

10. Defendant Donald Aldrich acting in his private capacity engaged in his right to 

free speech under the First and Fourteenth Amendments to the United States Constitution, and 

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his free speech and exercise of his free speech rights does not give rise to a claim for violation of 

Plaintiff’s constitutional rights.

11. At no time did Donald Aldrich compel or encourage confiscation of Plaintiff’s 

cell phone to give rise to a claim under 42 U.S.C. §1983.

12. To the extent that Plaintiff was a complaining witness and participated in criminal 

proceedings against Donald Aldrich, the factual findings of the Court and jury are binding upon 

Plaintiff and Plaintiff cannot challenge these findings under the doctrines of collateral estoppel 

and res judicata.

13. To the extent that Donald Aldrich is determine to have been acting under color of 

state law, his actions are protected by the doctrine of qualified immunity.

14. Statements and actions attributable to Donald Aldrich did not violate clearly 

established statutory or constitutional rights of which a reasonable person would have known.

15. Defendant Donald Aldrich reserves the right to file additional Affirmative 

Defenses as they may become known during the course of discovery.

O’CONNOR, DeGRAZIA, TAMM &O’CONNOR, P.C.

By: /S/ James E. Tamm

JAMES E. TAMM (P38154)

Attorney for Defendant Donald Aldrich

40701 Woodward Avenue, Ste. 105

Bloomfield Hills, MI 48304

(248) 433-2000

jetamm@odtlegal.com

Dated: April 27, 2015

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

JOSHUA HOWARD ELZINGA,

Plaintiff,

HON. THOMAS L. LUNDINGTON

vs. Case No.: 15-cv-10808-TLL-PTM

Magistrate Judge Patricia T. Morris

BAY CITY PUBLIC SAFETY OFFICER

DONALD ALDRICH, BAY CITY PUBLIC

SAFETY OFFICER BRIAN RITCHEY;

BAY CITY PUBLIC SAFETY OFFICER

KEATH BARTYNSKI, and CARRIER

SUE ALDRICH, Jointly and Severally,

Defendants.

THOMAS M. LOEB (P25913)

Attorney for Plaintiff

32000 Northwestern Hwy., Ste. 170

Farmington Hills, MI 48334

(248) 851-2200

tmloeb@mich.com

JAMES E. TAMM (P38154)

Attorney for Defendant Aldrich

40701 Woodward Avenue, Ste. 105

Bloomfield Hills, MI 48304

(248) 433-2000

jetamm@odtlegal.com

THOMAS L. FLEURY (P24064)

Attorney for Defendant Bartynski

26555 Evergreen, Ste. 1240

Southfield, MI 48076

(313) 965-0857

tlf@kellerthoma.com

PAUL L. NYSTROM (P57067)

DAVID J. COUNCIL (P73163)

Attorney for Carrie Sue Aldrich

39577 Woodward Ave., Ste. 300

Bloomfield Hills, MI 48304

(248) 203-0700

pnystrom@dykema.com

dcouncil@dykema.com

DEFENDANT DONALD ALDRICH’S RELIANCE ON JURY DEMAND

Defendant Donald Aldrich, by and through his attorneys, O’Connor, DeGrazia, Tamm & 

O’Connor, P.C., relies on the Jury Demand filed by Plaintiff in the above cause of action.

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O’CONNOR, DeGRAZIA, TAMM &O’CONNOR, P.C.

By: /S/ James E. Tamm

JAMES E. TAMM (P38154)

Attorney for Defendant Donald Aldrich

40701 Woodward Avenue, Ste. 105

Bloomfield Hills, MI 48304

(248) 433-2000

Dated: April 27, 2015 jetamm@odtlegal.com

CERTIFICATE OF SERVICE

I hereby certify that on April 27, 2015, I electronically filed the foregoing paper(s) with 

the Clerk of the Court using the ECF system which will send notification of such filing to the 

following: Thomas M. Loeb, Thomas L. Fleury, and Paul L. Nystrom, and I hereby certify that 

I have mailed by United States Postal Service the Paper(s) to the following non-ECF

participants: None.

/S/ Carolyn Rowland (cmrowland@odtlegal.com)

40701 Woodward Avenue, Ste. 105

Bloomfield Hills, MI 48304

(248) 433-2000

James E. Tamm P 38154

jetamm@odtlegal.com

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