UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ANITA ANN DAVIS and

JACQUELIN ANN HICKS,

Plaintiffs,

CASE NO. 15-CV-10161

v. HONORABLE GEORGE CARAM STEEH

DOUGLAS HITE, ROBERT FARMER,

MIKE WOLOSUK, GERALD DRIGGETT,

SCOTT GOECKER, JOSEPH PHILLIPS,

KEVIN MIHAILOFF, JACOB NEERING,

and TOWNSHIP OF MT. MORRIS,

Defendants.

 /

OPINION AND ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

AND/OR FOR SUMMARY JUDGMENT (DOC. #14) AND DISMISSING CASE

The plaintiffs, two sisters, bring this civil rights case alleging that, as they were

passengers in separate vehicles traveling in the Township of Mount Morris (the

“Township”), both of the vehicles were singled out for random traffic stops/detentions, even

though neither vehicle violated any traffic laws. Plaintiffs claim that, as the defendant

police officers were arresting two people from the vehicles with outstanding warrants, they

were using excessive force. The defendant officers then allegedly began striking all of the

occupants in both vehicles, including the plaintiffs. Plaintiffs and the other occupants of

the vehicles were arrested on felony charges of assaulting/resisting/obstructing a police

officer, among other charges. Charges against the plaintiffs were eventually dismissed.1

1 Defendants contend that the charges were dismissed because one of the

defendant police officers could not attend plaintiffs’ criminal proceedings due to medical

reasons. Plaintiff’s dispute this assertion.

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Plaintiffs filed this action in state court; defendants removed to this court. The remaining

counts of plaintiffs’ second amended complaint are:

Count V- Violation of 4th and 14th Amendments

Count VI- Deprivation of Due Process Liberty Interests

Count VII- Deprivation of Due Process Property Interests

Count VIII- Gross Negligence (Lack of Policy)

Count IX- Gross Negligence (Physical Force)

Count X- Conspiracy to Violate Civil Rights

Count XI- Denial of Equal Protection Under Federal Constitution2

Count XIII- Deliberate Indifference3

There are two sets of defendants — the Township and several officers from the City

of Mt. Morris Police Department, and police officers from the Clio Police Department. Now

before the court is the Township’s and the police officers from the Mt. Morris Police

Department’s motion to dismiss and/or for summary judgment seeking to dismiss the

second amended complaint in its entirety (Doc. #14). The court held oral argument on

September 9, 2015. At the hearing, plaintiffs voluntarily dismissed all claims against the

two police officers from the Clio Police Department — Kevin Mahailoff and Jacob Neering

— and Mt. Morris Police Department officers Douglas Hite, Gerald Driggett, Scott Goecker,

and Joseph Phillips. For the reasons stated on the record at the hearing, the claims

2

 Plaintiffs brought this claim under the Michigan Constitution also. At oral

argument, plaintiffs expressly abandoned any claim under the Michigan Constitution.

3

 Through stipulation, Counts I, II, III, IV and XII alleging assault, battery, invasion

of privacy, false imprisonment and malicious prosecution, have been dismissed with

prejudice (Doc. #24).

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against these officers are DISMISSED. Thus, the remaining claims are alleged only

against the Township and Officers Farmer and Wolosuk (collectively, “defendants”). For

the reasons that follow, defendants’ motion to dismiss and/or for summary judgment will

be granted.

I. BACKGROUND

On October 22, 2011, around 10:30 p.m., plaintiffs were in two separate vehicles

traveling alongside each other in the Township, allegedly coming home from a church

concert. (Second Am. Compl. ¶¶ 12-13). Plaintiffs allege that, “[f]or reasons never duly

or properly explained,” both vehicles were pulled over in a single traffic stop. (Id. ¶¶

14–15). What followed was an altercation with the police described by plaintiffs as

“increasing chaos” and “escalating violence” where the police allegedly used excessive

force against them. The confrontation was captured through dash-cam video.

Although the allegations in plaintiffs’ second amended complaint may conflict with

what is seen in the video, the court on summary judgment rejects the allegations in the

complaint to the extent they are in conflict with the video. The Sixth Circuit has recently

explained that where a dash-cam video depicts all genuinely disputed facts, the facts are

viewed in the light depicted by the videotape and accompanying audio. Rudlaff v. Gillispie,

791 F.3d 638, 639 (6th Cir. 2015) (citing Standifer v. Lacon, 587 F. App’x 919, 920 (6th Cir.

2014); Scott v. Harris, 550 U.S. 372, 381 (2007)).

The dash-cam footage begins with defendant Officer Robert Farmer, a police officer

with the City of Mt. Morris Police Department, initiating a traffic stop on a vehicle driven by

non-party Julie Emma Davis (“Julie”). It was later determined that plaintiff Anita Ann Davis

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(“Anita”), her children, non-parties Betty (12 years old), Corey (10 years old) and Andrew

(6 years old), were back seat passengers in the vehicle, and non-party Inocencia Joyce

(“Inocencia”) was the front-seat passenger. Anita was holding a baby in her hands.

Upon walking up to the driver’s side window, Officer Farmer asked Julie for her

license and registration and questioned why there was a baby in the back seat without a

car seat. Julie handed Officer Farmer someone else’s driver’s license, and, when asked

for her driver’s license, Julie responded that she did not have a license. Officer Farmer

asked Julie to step out of the vehicle.

Outside of the vehicle, Officer Farmer explained to Julie that he pulled over the

vehicle because the back passenger door was open while the vehicle was moving. Julie

explained that, while she was driving, someone realized that the door was not fully closed.4

During the exchange between Officer Farmer and Julie, Officer Farmer asked Julie to pull

her hands out of her pockets multiple times; Julie apologized for placing her hands in her

pockets. From the dash-cam video, it appears that Officer Farmer’s initial approach to the

vehicle and talking to Julie outside of the vehicle was not as tactful as he could have been;

he was raising his voice and speaking to her in an aggressive manner. 

After talking to Julie outside of the vehicle she was driving, Officer Farmer brought

her to the back of his vehicle (which was directly behind the vehicle Julie was driving), and

he placed her in the back seat of the patrol vehicle. Because the back seat of Officer

4

 In a phone call made by Julie to her mother while she was in the back seat of

Officer Farmer’s vehicle, she could be heard saying that it was plaintiff Anita Davis who

opened the door while the vehicle was moving.

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Farmer’s vehicle cannot be seen through its own dash-cam, it is not clear whether Officer

Farmer closed the door after Julie was inside of the vehicle.

While Julie was in the back of his patrol vehicle, Officer Farmer ran her information

through the appropriate law enforcement databases and determined that she had

outstanding warrants for her arrest, one for previously driving without a driver’s license. 

Officer Farmer informed Julie that she was being cited for driving without a driver’s license

and for a baby riding in the vehicle without a proper car seat. He told Julie that the vehicle

was going to be impounded, but that he would allow Julie and the other occupants to

obtain a ride home. Julie told Officer Farmer that there was no one who could come to the

scene and take them home.

While Officer Farmer was talking to Julie inside of his vehicle, Officer Mike Wolosuk

arrived on the scene to assist with the traffic stop. Around the same time, another vehicle

— later determined to be the vehicle occupied by non-party Laura Davis (“Laura”) and

plaintiff Jacquelin Ann Hicks (“Jacquelin”) — had stopped behind Officer Farmer’s vehicle,

out of view of the dash-cam. From statements made by Officer Farmer later in the video,

he believed that the second vehicle was called by Julie to transport everyone home.

Leaving Julie in the back seat of his vehicle, Officer Farmer approached the vehicle 

he had pulled over, this time from the front passenger side. The front passenger door was

open. Officer Farmer informed the passengers to exit the vehicle because the car was

going to be impounded. Inocencia and Anita repeatedly asked Officer Farmer why he was

going to impound the vehicle; he told them that Julie was driving without a driver’s license,

and that if they did not exit the vehicle they would be arrested. Despite Inocencia’s

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insistence that she had a valid driver’s license, Officer Farmer told the occupants that the

he was going to impound the vehicle because Julie was driving without a driver’s license.

From the inside of the vehicle, Inocencia was refusing to exit, and she protested that

Officer Farmer did not have the authority to arrest her, that she had the right to freedom

of speech and that Officer Farmer was a “freak.” Officer Farmer continued to ask the

occupants to exit the vehicle.

Eventually, Anita exited the back of the vehicle holding a baby. Officer Farmer told

Anita to step back towards his vehicle; she did not comply. She remained close to Officer

Farmer questioning his authority to tell her to step back. While this was happening,

Inocencia stepped out of the vehicle standing directly in front of Officer Farmer. At this

point, Officer Wolosuk walked from where Officer Farmer’s vehicle was parked and stood

near Anita.

Officer Farmer repeated his demands that Inocencia and Anita back up towards his

patrol vehicle. Inocencia protested that she wanted to collect all of her belongings from the

vehicle. Officer Farmer told Inocencia not to collect anything, to step back towards his

vehicle and to “get away from the car right now.” When Inocencia refused to comply with

Officer Farmer, he attempted to get her away from the vehicle by pulling her by her arm. 

She responded by shaking loose and throwing her fists at his direction. Officer Farmer was

unable to get a hold of Inocencia.

At this point, Officer Wolosuk grabbed Anita by her arm and directed her to Officer

Farmer’s vehicle. She continued to ask “why” and refused to follow Officer Wolosuk’s

direction. A few seconds later the children sitting in the back of the vehicle exited and

walked away towards Officer Farmer’s vehicle. One of the children grabbed the baby from

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Anita and walked out of the view of the camera. Anita, Inocencia, and another woman

stayed outside of the vehicle and there was yelling back and forth between them and the

officers who were telling them to step back.

As Officer Farmer was attempting to grab a hold of Inocencia’s arm and get her to

comply, Anita pushed at Officer Farmer and told him to “stop.” Officer Farmer responded

by pushing Anita off of him and taking his attention back to Inocencia.

While this was happening, Julie made it out of the back seat of Officer Farmer’s

patrol vehicle5 and, along with plaintiff Jacquelin, approached Officers Farmer and Wolosuk

as they were dealing with Inocencia and Anita. The officers were outnumbered 5-2.

Officer Wolosuk diverted his attention to Julie, getting her to the ground to place her

in handcuffs. However, plaintiffs and another females attempted to approach Officer

Wolosuk as he was securing Julie. Officer Farmer took his attention off of Inocencia,

pulled each of the females (including the plaintiffs) and pushed them away from Officer

Wolosuk. Anita stood back up after being pushed away the first time; Officer Farmer

pushed her away again.

While Officer Wolosuk was securing Julie, and after getting everyone away from

Officer Wolosuk, Officer Farmer pulled out his taser and threatened to use it on anyone

who did not get down on the ground. At this point, everyone complied and got down on the

ground. Backup arrived to help secure everyone in handcuffs and take them to the police

station.

5 It is not clear whether someone let Julie out of the vehicle or if she made it out

herself.

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Plaintiffs were charged with assaulting/resisting/obstructing a police officer, among

other charges. The charges were eventually dropped and this lawsuit followed.

II. LEGAL STANDARD

Defendants move to dismiss the complaint for failure to state a claim upon which

relief can be granted, or, alternatively, for judgment on the pleadings and/or summary

judgment. Because defendants have attached matters outside of the pleadings to the

motion, the court considers the motion under Federal Rule of Civil Procedure 56's

summary judgment standard.

Federal Rule of Civil Procedure 56(c) empowers the court to render summary

judgment "forthwith if the pleadings, depositions, answers to interrogatories and

admissions on file, together with the affidavits, if any, show that there is no genuine issue

as to any material fact and that the moving party is entitled to judgment as a matter of law."

 See Redding v. St. Eward, 241 F.3d 530, 532 (6th Cir. 2001). The standard for

determining whether summary judgment is appropriate is "'whether the evidence presents

a sufficient disagreement to require submission to a jury or whether it is so one-sided that

one party must prevail as a matter of law.'" Amway Distrib. Benefits Ass’n v. Northfield Ins.

Co., 323 F.3d 386, 390 (6th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 251-52 (1986)). Generally, the evidence and all reasonable inferences must be

construed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co.,

Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Redding, 241 F.3d at 532 (6th Cir.

2001). However, as explained above, where a dash-cam video depicts all genuinely

disputed facts, the facts are viewed in the light depicted by the videotape. Rudlaff v.

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Gillispie, 791 F.3d 638, 639 (6th Cir. 2015) (citing Standifer v. Lacon, 587 F. App’x 919,

920 (6th Cir. 2014); Scott v. Harris, 550 U.S. 372, 381 (2007)).

III. ANALYSIS

Plaintiffs allege federal and state law causes of action against the remaining

defendants. The court addresses the claims made against the individual officers first,

followed by a discussion of the claims against the Township.

A. Claims Against Individual Officers Farmer and Wolosuk

1. The Constitutional Claims

Plaintiffs allege excessive force in violation of the 4th and 14th Amendments to the

U.S. Constitution (Count V). Plaintiffs also allege that the defendants’ excessive force

deprived them of their due process liberty interests (Count VI) and property interests

(Count VII). In addition, plaintiffs contend that they were denied equal protection of the

laws contrary to similarly situated motorists (Count XI), that defendants’ actions amounted

to deliberate indifference to their needs (Count XIII), and that the defendants conspired to

violate their civil rights (Count X). 

i. Qualified immunity Standard

Qualified immunity “protects government officials from liability for civil damages

insofar as their conduct does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Stanton v. Sims, __ U.S. __,134 S.Ct.

3, 4–5 (2013) (citing Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal citation marks

omitted). It protects all officers except “the plainly incompetent or those who knowingly

violate the law.” Hunter v. Bryant, 502 U.S. 224, 229 (1991) (citation and internal quotation

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marks omitted). As the Supreme Court has explained, “[t]his accommodation for

reasonable error exists because ‘officials should not err always on the side of caution’

because they fear being sued.” Id. (citation omitted). Indeed, qualified immunity “gives

government officials breathing room to make reasonable but mistaken judgments. . . .” 

Stanton, 134 S.Ct. at 5 (citing Ashcroft v. al-Kidd, 563 U.S. __, __, 131 S.Ct. 2074, 2085

(2011) (quotation marks omitted)). See also Essex v. Cnty. of Livingston, 518 F. App’x

351, 356 (6th Cir. 2013) (citation omitted)).

The court employs a two-step inquiry in deciding qualified immunity questions. 

Baynes v. Cleland, __ F.3d __, 2015 WL 5000615, at *5 (6th Cir. 2015). “‘First, viewing

the facts in the light most favorable to the plaintiff, has the plaintiff shown that a

constitutional violation has occurred? Second, was the right clearly established at the time

of the violation? These prongs need not be considered sequentially.’” Id. (citation

omitted).

ii. Counts V, VI, VII, X, & XIII – Excessive Force

In Count V, plaintiffs allege that defendants violated the 4th and 14th Amendments

to the U.S. Constitution by using excessive force to subdue and arrest them. Likewise, in

Counts VI and VII, plaintiffs contend that defendants’ alleged use of excessive force

deprived them of their due process liberty and property interests. In Count X, plaintiffs

allege that the defendants conspired together to use excessive force against them in

violation of their civil rights. In Count XIII, the second amended complaint alleges

deliberate indifference leading to unreasonable seizure through excessive force. As best

as can be gleaned from the complaint, this count applies only to the Township. However,

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to the extent it is alleged against the individual officers, it is based on the alleged use of

excessive force and illegal seizure. As will be explained, the video shows that the amount

of force used by the officers against plaintiffs was reasonable when considering the totality

of the circumstances. Thus, plaintiffs have not established a constitutional violation and

the individual police officers are entitled to qualified immunity.

Whether police used excessive force is judged under an objective “reasonableness”

standard. Rudlaff, 791 F.3d at 641. Where an “excessive force claim arises in the context

of an arrest or investigatory stop of a free citizen, it is most properly characterized as one

invoking the protections of the Fourth Amendment, which guarantees citizens the right ‘to

be secure in their persons . . . against unreasonable . . . seizures’ of the person.” Graham

v. Connor, 490 U.S. 386, 394 (1989). “The ‘reasonableness’ of a particular use of force

must be judged from the perspective of a reasonable officer on the scene, rather than with

the 20/20 vision of hindsight.” Id. at 396 (citation omitted). “The assessment is factspecific, based on the totality of the circumstances, and ‘pay[s] particular attention to the

severity of the crime at issue, whether the suspect poses an immediate threat to the safety

of the officers or others, and whether he is actively resisting arrest or attempting to evade

by flight.” Baynes, 2015 WL 5000615, at *5 (citation and internal quotation marks omitted).

Here, viewing the evidence in a light most favorable to the plaintiffs, the individual

police officers are entitled to qualified immunity because plaintiffs have not established a

constitutional violation. As is seen in the video, the officers were responding to a rapidly

evolving confrontation where multiple individuals, including the plaintiffs, posed an

immediate threat to the safety of the officers. See Burgess v. Fischer, 735 F.3d 462, 473

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(6th Cir. 2013). Officers Farmer and Wolosuk were objectively reasonable in the force they

used to secure the non-compliant plaintiffs.

Plaintiffs argue that the use of force used against them was not reasonable

because, unlike the others involved in the altercation, they did not have warrants out for

their arrests, and they were not actively resisting arrest. Thus, plaintiffs contend that there

was no objective evidence that they posed a threat to the officers or anyone else. 

Moreover, plaintiffs argue that, despite what is seen in the video, they were merely trying

to diffuse the situation. This argument lacks merit.

The video flatly contradicts any claim by the plaintiffs that the officers’ actions were

not objectively reasonable. First, despite plaintiffs’ argument that they did not have

warrants out for their arrests, and, therefore, did not pose a threat to the officers, it was

only determined later that they did not have warrants. At the time Officer Farmer

approached the vehicle, he did not know the identity of the plaintiffs. The only thing the

officers were aware of was that the plaintiffs and other occupants were not complying with

their lawful directions. 

Second, the dash-cam video reveals - and plaintiffs concede - that they interjected

themselves into the confrontation with the police officers. Although plaintiffs claim they had

a good motive and were not trying to harm the officers, but instead wanted to diffuse the

situation, the officers are still entitled to qualified immunity. As explained above,

reasonableness is viewed “from the perspective of a reasonable officer on the scene,

rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. Here, any force

used against the plaintiffs by the officers was reasonable. The officers were outnumbered,

and plaintiffs were not complying with the officers’ lawful commands. The force used was

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necessary to obtain compliance and to prevent plaintiffs from harming the officers. 

Responding to a rapidly evolving situation, the police officers did not have time to

determine whether plaintiffs’ conduct was an innocent attempt to diffuse the situation. 

They had to make split-second decisions to protect themselves from harm.

Because the individual police officers acted reasonably in the amount of force they

used against plaintiffs, plaintiffs have not established a constitutional violation. The

individual police officers are, therefore, entitled to qualified immunity on Counts V, VI and

VII.

iii. Count XI – Equal Protection

In Count XI, plaintiffs allege that the defendant officers violated their right to Equal

Protection of the laws in violation of the federal constitution. The premise of plaintiffs’

equal protection claim is that they were treated differently than similarly situated, nonaggressive arrestees. Plaintiffs concede that the aggressive arrestees were rightly

subdued; however, they argue that as non-aggressive arrestees, they are entitled to equal

treatment as similarly situated persons. The individual officers are entitled to qualified

immunity.

The Equal Protection Clause prohibits discrimination by the government that

“burdens a fundamental right, targets a suspect class, or intentionally treats one differently

than others similarly situated without any rational basis for the difference.” Loesel v. City

of Frankenmuth, 692 F.3d 452, 461 (6th Cir. 2012) (citation and internal quotation marks

omitted). Plaintiffs are proceeding on a class Equal Protection theory: that the defendants

treated them differently than other similarly situated non-aggressive arrestees. Both sides

agree that rational basis review applies to plaintiffs’ Equal Protection claim. 

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“[G]overnmental action subject to equal protection scrutiny under the rational basis test

must be sustained if any conceivable basis rationally supports it.” TriHealth, Inc. v. Bd. of

Com’rs, Hamilton Cnty., Ohio, 430 F.3d 783, 790 (6th Cir. 2005) (citations omitted)

(emphasis in original). Governmental action is “presumptively valid and ‘may be based on

rational speculation unsupported by evidence or empirical data.’” Id. (citing Federal

Communications Commission v. Beach Communications, Inc., 508 U.S. 307, 315 (1993)). 

Plaintiffs have the burden of demonstrating “that a government action lacks a rational basis

. . . either by negativing every conceivable basis which might support the government

action or by demonstrating that the challenged action was motivated by animus or ill-will.” 

Loesel v. City of Frankenmuth, 692 F.3d 452, 462 (6th Cir. 2012) (citation and internal

quotation marks omitted).

Here, plaintiffs have not established an Equal Protection violation. First, the

evidence does not support plaintiffs’ contention that they are similarly situated to other nonaggressive arrestees. Plaintiffs’ role (as seen in the video), however minimal, escalated

the rapidly-evolving situation and called for a response from the defendant officers. In

other words, plaintiffs are not similarly situated to other non-aggressive arrestees. See

Loesel, 692 F.3d at 462 (Plaintiffs “have the burden of demonstrating that they were

treated differently than other” non-aggressive arrestees “who were similarly situated in all

material respects.”) (citations omitted) (emphasis in original). Second, even if plaintiffs

were similarly situated to other non-aggressive arrestees and could establish that they

were treated differently, the defendant officers had a rational basis for treating plaintiffs

differently: they were responding to an escalating threat to their safety. Defendants’

actions were reasonable; they did not have time to determine whether plaintiffs had benign

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motives when they placed their hands on the officers during the altercation and refused to

comply with the officers’ lawful commands. Thus, a conceivable basis supports

defendants’ actions, and plaintiffs have not shown animus or ill-will.

Plaintiffs have not established an Equal Protection constitutional violation. Thus,

the defendant officers are entitled to qualified immunity.

2. The State Law Claims

Plaintiffs allege two state law claims: gross negligence for failing to have a policy in

place to protect innocent passengers (Count VIII), and gross negligence through the use

of physical force (Count IX). These claims fail for two reasons.

First, gross negligence is not a standalone cause of action under Michigan law. 

Under Michigan’s Tort Liability Act, a governmental employee is not liable for personal

injuries sounding in tort provided the employee’s “conduct does not amount to gross

negligence that is the proximate cause of the injury or damage.” Mich. Comp. Laws §

691.1407(c). Gross negligence is defined as “conduct so reckless as to demonstrate a

substantial lack of concern for whether an injury results. Id. at § 691.1407(7)(a). Michigan

law provides that a governmental employee is entitled to immunity for an intentional tort if

“(1) the employee’s challenged acts were undertaken during the course of employment and

that the employee was acting, or reasonably believed he was acting, within the scope of

his authority, (2) the acts were undertaken in good faith, and (3) the acts were

discretionary, rather than ministerial, in nature.” Odom v. Wayne Cnty., 482 Mich. 459, 461

(2008). However, a gross negligence claim cannot be maintained as a separate cause of

action but is only relevant in determining whether a governmental actor is entitled to

immunity for an intentional tort. Bletz v. Gribble, 641 F.3d 743, 757 (6th Cir. 2011).

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Second, as explained above, plaintiffs were not innocent passengers. The video

evidence shows otherwise. Thus, this claim is unsupported by the uncontested evidence.

B. Claims Against the Township

Plaintiffs allege that all of the claims are brought against the Township pursuant to

Monell v. Dep’t of Social Services, 436 U.S. 658 (1978). However, as explained above,

plaintiffs have failed to establish an underlying constitutional violation. Thus, their claims

against the Township are subject to dismissal. Thurmond v. Cnty. of Wayne, 447 F. App’x

643, 651 (6th Cir. 2011) ([I]t is well settled that ‘[t]here can be no Monell [v. Dep’t of Soc.

Serv. of N.Y., 436 U.S. 658 (1978)] liability under § 1983 unless there is an underlying

unconstitutional act.’”), quoting Wilson v. Morgan, 477 F.3d 326, 340 (6th Cir. 2007).

C. Plaintiffs’ Non-Specific Requests for Discovery

In response to defendants’ motion, and again at oral argument, plaintiffs argued that

the court should not dismiss this action because they are entitled to more discovery. 

However, plaintiffs have not come forward with an explanation of the discovery they say

is needed or how discovery would change the events depicted in the dash-cam video. 

Plaintiffs have not met their burden in avoiding summary judgment.

The Federal Rules of Civil Procedure allow the court to defer ruling on a motion for

summary judgment when additional discovery is requested. Rule 56(d) directs:

When Facts Are Unavailable to the Nonmovant. If a nonmovant shows

by affidavit or declaration that, for specified reasons, it cannot present facts

essential to justify its opposition, the court may:

(1) defer considering the motion or deny it;

(2) allow time to obtain affidavits or declarations or to take discovery; 

or 

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(3) issue any other appropriate order.

Fed. R. Civ. P. 56(d). 

Plaintiffs have not specified why they cannot present facts essential to justify an

opposition to defendants’ motion. Moreover, even if plaintiffs had presented such facts in

their response brief or raised them at oral argument, they did not attach an affidavit or

declaration stating that additional discovery is needed. Plaintiffs’ failure to specify the

discovery needed, through affidavit or declaration, is fatal to their request. See Cacevic

v. City of Hazel Park, 226 F.3d 483, 488 (6th Cir. 2000) (“We, like other reviewing courts,

place great weight on the Rule 56[(d)] affidavit, believing that ‘[a] party may not simply

assert in its brief that discovery was necessary and thereby overturn summary judgment

when it failed to comply with the requirement . . . to set out reasons for the need for

discovery in an affidavit.’”).

IV. CONCLUSION

For the reasons explained above, defendants’ motion to dismiss and/or for summary

judgment is GRANTED. This case is DISMISSED

IT IS SO ORDERED.

Dated: September 22, 2015

s/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

September 22, 2015, by electronic and/or ordinary mail.

s/Marcia Beauchemin

Deputy Clerk

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