UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ERIC GUNNELS,

Plaintiff, No. 15-cv-12170

vs. Hon. Gerald E. Rosen

ROBERT KENNY, STUART

WORTHING, ROY HATCHETT,

ERIC ECKLES and JASON

PLETSCHER,

Defendants.

____________________________/

OPINION AND ORDER GRANTING

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND

DENYING PLAINTIFF’S MOTION FOR LEAVE TO FILE AN AMENDED

COMPLAINT

At a session of said Court, held in

 the U.S. Courthouse, Detroit, Michigan

on September 30, 2016

PRESENT: Honorable Gerald E. Rosen

 United States District Judge

I. INTRODUCTION

Plaintiff Eric Gunnels has brought this § 1983 action alleging “search and seizure

without probable cause” based upon a search pursuant to a judicially-obtained search

warrant of property owned by him in Clio, Michigan for suspected violations of the

Michigan Building Code on February 12, 2014. Following the close of the six-month

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discovery period, Defendants filed the instant Motion for Summary Judgment. Plaintiff

has responded and Defendants have replied.

Having reviewed and considered the parties’ briefs, supporting documents, and

the entire record of this matter, the Court has determined that oral argument is not

necessary. Therefore, pursuant to Eastern District of Michigan Local Rule 7.1(f)(2), this

matter will be decided on the briefs. This Opinion and Order sets forth the Court’s

ruling.

PERTINENT FACTS

Plaintiff Eric Gunnels purchased property located on North Lewis Road in Clio,

Michigan in 2013. The building, which was vacant when Gunnels bought it, was

previously a hardware store, with attached living quarters. When Gunnels purchased the

property, all of the hardware implements and shelving units and racks that were in the

previous hardware store were still inside the building. [Gunnels 1/21/16 Dep., p. 19]. 

Gunnels intended to rent out the store-front area for another hardware store or some other

business, and live in the back area residence himself. Id. at 17. In January - February

2014, Gunnels, with the help of his father and some friends, worked on getting the

property habitable. Id. at 57.

On January 22, 2014, Gunnels found a “building inspector notification” sticker on

the door of the property with the name and phone number of the Thedford Township

building inspector, Stuart Worthing, on it, and a handwritten note from Worthing asking

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Gunnels to contact him. Id. at 70-73. Gunnels called Worthing later that same day but

he did not answer, so Gunnels left him a voicemail message telling him he had called. 

Id.

Worthing called Gunnels back early the following week. Id. at 69. According to

Gunnels, in that first phone conversation, Worthing told him that it was his

understanding that Gunnels was doing construction on his property and Worthing asked

if there was anything Gunnels needed help with or if he would like to schedule a time for

Worthing to come in and take a look at what he was doing. Id. Gunnels said he told

Worthing that he had not done any construction work that required a permit and that at

the time he was just doing “cosmetic stuff. . . patching drywall and painting.” Id.

According to Gunnels, Worthing merely responded, “Okay,” so no appointment was

made for him to come inspect the property. Id.

The following week, Worthing called Gunnels again. Id. at 75. Worthing told

Gunnels in that second conversation that he noticed a dumpster had been placed in front

of the premises. Id. Gunnels told Worthing that he was just throwing away garbage that

was inside the building. Id. Worthing again asked whether Gunnels had done any

construction to which Gunnels again replied, “no,” that he was just doing “painting and

carpeting.” Id. at 75-76 According to Gunnels, Worthing once again just said, “All

right. Thanks. That’s all I needed to know.” Id. at 75. Worthing then asked Gunnels if

he wanted Worthing to do a “walk through inspection” at that time, and Gunnels once

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again declined the offer, reiterating that he had not done any construction that required a

permit. Id. at 78.

Two weeks later, on February 12, 2014, while Gunnels was outside shoveling

snow, Stuart Worthing arrived at the premises and asked if he could do a walk through. 

Id. at 79. Gunnels refused. Id. at 80. Worthing informed Gunnels that under the

building code he has the right to enter any building under construction to which Gunnels

responded, “I’d like to see where it says that.” Id. According to Gunnels, Worthing told

him that he would leave a copy of the code provisions in his mailbox at the township

offices. Id.

1

Worthing then left the premises but said he would be back in 20 minutes. Id. at

82.

Approximately 20 minutes later, Worthing returned accompanied by Officer Eric

Eckles in a separate vehicle. Id. According to Gunnels, Worthing stepped out his car

and immediately demanded to search the premises. Id. Gunnels said he asked Worthing

why he wanted to search the property, to which Worthing replied “because I have

complaints that you’re doing construction without a permit.” Id. at 83. Gunnels testified

that he told Worthing once again that he was not doing any construction that required a

permit and refused to allow him to enter the premises. Id. According to Gunnels,

1

 Gunnels is on the Thedford Township Board of Trustees and a member of the

Township Planning Commission, and therefore, has a mailbox in the township building.

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Worthing’s reaction to his refusal was merely to say, “Okay, Eric, just so you know it’s

nothing personal,” and Gunnels responded “likewise, it’s nothing personal against you

either.” Id.

After this conversation, Worthing left, but Officer Eckles remained -- he parked

his car across the street and stayed there for approximately four hours. Id. at 89. 

During that time, Gunnels and two of his friends laid carpet inside the house but

took a dinner break during which Gunnels went out to get a pizza and brought it back to

the house, stopping briefly to offer a slice to Officer Eckles. Id.

Gunnels said that Eckles looked uncomfortable, and when Gunnels asked him

why he was parked there, Eckles told him he was “waiting on some 911 call.” Id. at 92. 

Shortly thereafter, Eckles received a text message. Id. at 92-93. Gunnels testified that he

did not see what was on the text, but that Eckles told him the message was from the chief

of police, and said “they suspect marijuana.” Id. at 94. Gunnels admitted, however, that

he did not know who was the “they” Eckles referred to but assumed it was the chief. Id.

at 95.

Gunnels returned to his building and, a short while later, Police Chief Robert

Kenny arrived in his personal vehicle, with Stuart Worthing following in his own car. Id.

at 98-99. Worthing parked across the street behind Officer Eckles and Chief Kenny

parked at the edge of Gunnels’ driveway. Id. Worthing then left his car and joined Chief

Eckles in his vehicle where the two men remained for approximately 45 minutes. Id.

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When Gunnels saw the car parked at the edge of his driveway, Gunnels exited his

building and Kenny exited his vehicle and approached Gunnels. Id. at 100. According

to Gunnels, Kenney said to Gunnels, “Eric, I really think this is bullshit. Why didn’t you

just let him search?” to which Gunnels replied, “I think someone in your department

needs to have their ego put in check.” Id. Gunnels said that Kenny then told him they

were in the process of obtaining a search warrant, and walked back to his car. Id.

Gunnels returned back inside of his building. Id. A short while later, Officers Jason

Pletscher and Roy Hatchett arrived with the search warrant and gave Gunnels a copy of

it. Id. at 101. The officers then entered the building and Gunnels followed. Id. Chief

Kenny also entered the premises. Id. Gunnels’ father and two of his friends were in the

building with Gunnels at the time. Id.

According to Gunnels, the officers were in the building looking around for about

an hour. Id. at 102. During this search, Chief Kenny observed that the two inner doors

separating the business portion of the building from the residence had been screwed shut. 

Id. Gunnels testified that he had screwed the doors shut when he realized the officers

were getting a search warrant. Id. at 103. He testified,

I didn’t know how these things worked, so I just -- that was my way of

locking that door in -- you know, in case they had to pull a permit or a

search warrant for a separate building because I didn’t know if it was --

they were pulling a search warrant [only[ for the commercial aspect of the

building where I was doing the carpeting and the painting or whether they

wanted to search my entire residence. I considered them to be two separate

things. . . .

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Id. at 102-104.

Chief Kenny got a drill and removed the screws. Id.

Once the doors were opened, officers observed open wall cavities, and plumbing

and electrical fixtures removed. [Worthing Dep., p. 40]. A jack was also observed

holding up a structural beam. Id.

2

 All of these constituted building code violations. Id.

at 41; see also Defendants’ Ex. 5, 2009 Michigan Building Code R105.1. Although the

officers could have issued Gunnels a citation, they did not. [Gunnels Dep., p. 107.]

However, two days later a “stop work order” was placed on the building, directing that

work on the building be ceased and revoking the certificate of occupancy. Id.

Gunnels testified that he never attempted to respond to the building inspector

about the stop work order. Id. Instead, he spoke with a supervisor who told him that, to

get the stop work order lifted, he would have to pull a building permit and get a

structural engineer’s approval. Id. at 108.

Gunnels did not pull a permit or take any further action with the township or the

building inspector. Instead, on June 16, 2015, he filed this § 1983 lawsuit claiming that

the search of his property and the resulting stop work order amounted to an unlawful

search and seizure. On February 29, 2016, after the close of discovery, Defendants filed

this Motion for Summary Judgment.

2

 A jar of marijuana was also found in the premises. [Gunnels Dep., p. 95-98.]

However, Gunnels has a medical marijuana permit, and marijuana was neither the basis

for nor the object of the search.

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II. DISCUSSION

A. APPLICABLE STANDARDS

Summary judgment is proper if the moving party “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). As the Supreme Court has explained, “the plain language of Rule

56[] mandates the entry of summary judgment, after adequate time for discovery and

upon motion, against a party who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party will bear the

burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548,

2552 (1986). 

In deciding a motion brought under Rule 56, the Court must view the evidence in a

light most favorable to the nonmoving party. Pack v. Damon Corp., 434 F.3d 810, 813

(6th Cir. 2006). Yet, the nonmoving party may not rely on mere allegations or denials,

but must “cit[e] to particular parts of materials in the record” as establishing that one or

more material facts are “genuinely disputed.” Fed. R. Civ. P. 56(c)(1). Moreover, any

supporting or opposing affidavits or declarations “must be made on personal knowledge,

set out facts that would be admissible in evidence, and show that the affiant or declarant

is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). Finally, “the mere

existence of a scintilla of evidence that supports the nonmoving party’s claims is

insufficient to defeat summary judgment.” Pack, 434 F.3d at 814 (alteration, internal

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quotation marks, and citation omitted). The Court will apply the foregoing standards in

deciding Defendants’ motion for summary judgment in this case.

B. THE SEARCH OF PLAINTIFF’S PREMISES WAS CONDUCTED

PURSUANT TO A VALID SEARCH WARRANT 

 

Plaintiff claims in his one-count Complaint that his Fourth Amendment rights

were violated when the police officers searched his premises and a “stop work order”

issued for his property. The sole basis for his claim is that the search warrant issued for

the search of the premises was invalid because it was issued pursuant to an affidavit that

contained a false statement that Plaintiff was the owner of a medical marijuana

dispensary. See Affidavit and Application for Search Warrant, Defendants’ Ex. 3, ¶ 8

[“[Y]our affiant has known since 2012 that Eric Gunnels was the owner of a medical

marijuana dispensary known as the Coinsurer of Cannabis, located at the corner of Dort

Highway and Frances Rd. in Thedford Township.”] At his deposition Plaintiff denied

ever having any ownership interest in the Coinsurer of Cannabis marijuana dispensary,

although he admitted he is friends with the people who do own the facility and that prior

to February 2012 he “frequented there” at least once a week to “socialize.” [Gunnels

Dep., pp. 96-97.]

The Fourth Amendment provides that “no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.” U.S. Const., amend. IV. Where there is

a search warrant issued by a neutral and detached magistrate or judge, indicating that

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there is probable cause for the search, officers who rely on that warrant and its finding of

probable cause are generally insulated from liability pursuant to § 1983 for Fourth

Amendment violations. See Hale v. Kart, 396 F.3d 721, 725 (6th Cir.2005). However,

“an officer cannot rely on the judicial determination of probable cause if that officer

knowingly makes false statements and omissions” necessary to the finding of probable

cause. See Yancey v. Carroll County, Ky., 876 F.2d 1238, 1243 (6th Cir.1989). An

officer who obtains a search warrant by making materially false statements in the

affidavit on which the warrant is based may be liable to a plaintiff injured by the warrant

if plaintiff demonstrates that (1) the officer made the false statements knowingly and

intentionally or with a reckless disregard for the truth and (2) setting aside the false

statements, the remainder of the affidavit is insufficient to establish probable cause. Hill

v. McIntyre, 884 F.2d 271, 275 (6th Cir.1989) (citing Franks v. Delaware, 438 U.S. 154,

98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)) (emphasis added); Sykes v. Anderson, 625 F.3d

294, 305 (6th Cir. 2010) (“A warrant is invalid if the officer knowingly and deliberately,

or with a reckless disregard for the truth, made false statements or omissions in a warrant

application and such statements or omissions were... necessary to the finding of probable

cause.” (internal citations and punctuation omitted)). See also, Young v. Owens, 577 F.

App’x 410, 416 (6th Cir. 2014) (holding that to overcome an officer’s qualified

immunity from § 1983 liability “a plaintiff must establish (1) a substantial showing that

the defendant stated a deliberate falsehood or showed reckless disregard for the truth and

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(2) that the allegedly false or omitted information was material to the finding of probable

cause”); Ghaster v. City of Rocky River, 913 F. Supp. 2d 443, 464-5 (N.D. Ohio 2012).

Plaintiff here cannot make the requisite showing.

Accepting as true, as the Court must, Plaintiff’s denial of owning the Coinsurer of

Cannabis, Plaintiff cannot make a “substantial showing” that Officer Pletscher, who

swore out the search warrant, stated a “deliberate” falsehood since it was not

unreasonable for him to believe that Gunnels had an interest in the marijuana dispensary

when he admitted that he was good friends with the owner and frequented the marijuana

dispensary at least once a week to socialize there.

More importantly, however, even if the Court were to determine that the statement

was a deliberate falsehood, Plaintiff cannot show that the allegedly false statement was

necessary to the finding of probable cause. Indeed, the ownership of a marijuana

dispensary is wholly immaterial to the probable cause determination. The more than

page-and-a-half long affidavit more than amply establishes probable cause to search

Plaintiff’s property for violations of the Michigan Building Code even when the

allegedly false statement in Paragraph 8 is extracted. Of relevance here is that the

affidavit also states the following:

5. That on 02/12/2014, your affiant was dispatched [to] 13007 N.

Lewis Rd., in Thedford Township, Genesee County, Michigan, to

meet with Mr. Stuart Worthing, Thedford Township Building

Inspector. Mr. Stuart told me that on or about January 22, 2014, he

was called to 14007 N. Lewis Rd. to investigate a report that the

buildings located on the premises were being remodeled or

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otherwise altered without a township permit. Mr. Stuart said that he

saw construction materials on the premises and that on that day he

left a Stop Work Order at the site. Further he said the owner, Eric

Gunnels, called him on January 28, 2014, and told Mr. Stuart there

was only minor painting and carpeting being done on the premises.

6. That on 02/12/2014, Mr. Stuart Worthing, Thedford Township

Building Inspector, told your affiant that he stopped at 14007 N.

Lewis Rd. on January 31, 2014, in response to a second call. Mr.

Worthing said that on this occasion he saw construction materials,

to-wit: drywall, 2X4 studs, and plywood on the premises.

7. That on 02/12/2014, Mr. Stuart Worthing, Thedford Township

Building Inspector, told your affiant that he stopped at 14007 N.

Lewis Rd. on February 12, 2014, at approximately 4:00 PM. Mr

Worthing said that he encountered the owner, Eric Gunnels, on the

property. Mr. Worthing said he asked Mr. Gunnels if he could walk

through the premises to inspect the work, and Mr. Gunnels refused

to let Mr. Worthing enter the building. Mr. Gunnels told Mr.

Worthing that he would not allow him to inspect the property. Mr.

Worthing said that he called Thedford Township Police Chief Bob

Kenny to request assistance because of the interference with his

duties under Section 104.6, Right of Entry, of the 2009 Michigan

Building Code.

***

WHEREFORE, your affiant states that based on the foregoing information

he/she has reasonable and probable cause to belief and does believe that the

above described premises. . . contain evidence of violations of the

Michigan Building Code or criminal conduct, and therefore prays that the

Court will issue a warrant directing the Thedford Township Police or any

peace office[r] of the State of Michigan to search the place(s) described in

paragraph 4, for the above mentioned items, including but not limited to: 

construction materials, to-wit: drywall, 2X4 studs, plywood, tools and

hardware supplies on the premises; also papers and effects showing

occupancy, ownership, dominion or control of said premises including but

not limited to rent and property receipts, keys, bills, and cancelled mail

envelopes and records of remodeling or construction work. . . found in the

described location(s); commanding him to search therefore and seize and

safely keep and test and analyze, and to make return and tabulation thereof

according to law.

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[Defendants’ Ex. 3.]

Based on the affidavit, the district judge was “satisfied that there is reasonable and

probable cause to believe that evidence [establishing] violations of the 2009 Michigan

Building code or criminal conduct, more specifically, remodeling or otherwise altering a

building without a permit and obstructing the Thedford Township Building Inspection in

the lawful discharge of his duties. . . [would be] found [at the premises located] at 14007

N. Lewis Rd.,” and hence, authorized the search. [See Ex. 4.] There is simply no

evidence of record showing that Plaintiff’s alleged ownership of a marijuana dispensary

played any role in the issuance of the warrant.

For the foregoing reasons, the Court concludes that the warrant, pursuant to which

Plaintiff’s property was searched, was valid. Therefore, Plaintiff cannot make out a

cognizable claim for violation of his Fourth Amendment rights based on the search of his

property.

C. PLAINTIFF WAS NOT “SEIZED” WHILE THE WARRANT WAS BEING

OBTAINED 

Plaintiff also alleges in his Complaint that Defendants seized “his person” during

the time the search warrant was being obtained. A person is seized within the meaning

of the Fourth Amendment “where an officer applies physical force to restrain [him] or a

show of authority... has in some way restrained the liberty of [the] citizen. If physical

force or submission to the assertion of authority is absent, no seizure occurs.” United

States v. Ray, 597 F. App’x 832, 837 (6th Cir. 2013) (citations omitted).

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Similarly, where the plaintiff is free to flee, there is no seizure. See e.g., Bennett

v. City of Eastpointe, 410 F.3d 810, 833 (6th Cir. 2005) (where suspect fled instead of

submitting to show of authority there is no seizure).

In O’Malley v. City of Flint, 652 F.3d 662 (6th Cir. 2011), the plaintiff had parked

his vehicle in his driveway and was walking toward his home when the police chief

pulled his vehicle directly behind plaintiff’s car, blocking the vehicle, and the two talked. 

The court held that no Fourth Amendment seizure occurred because the plaintiff was not

only free to leave his vehicle, he already had left it, and the court found that the brief

interaction between the two men was consensual, and hence, not a seizure. Id. at 699.

Here, Plaintiff acknowledged that he was not only free to leave his premises but

he actually did leave -- he went out to get some pizza. Moreover, as in O’Malley,

Plaintiff’s interactions with Officer Eckles when he was returning home with his pizza

and with Chief Kenny were brief and after each interaction, he went on his way. There is

simply no evidence that Plaintiff was restrained in any way. Therefore, no seizure of his

person occurred.

For the foregoing reasons, the Court concludes that Plaintiff has failed to state any

Section 1983 claim upon which relief may be granted. Defendants’ Motion for Summary

Judgment, therefore, is GRANTED.

***

Following Defendants’ filing of their Motion for Summary Judgment, and after all

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briefing was completed, Plaintiff filed a Motion for Leave to File an Amended

Complaint to sue Defendant Police Chief Kenny in his official, as well as his individual

capacity, so as to enable him to add additional claims for injunctive/declaratory relief and

damages for deprivation of civil rights caused by the Township’s policy, custom, practice

or procedure pursuant to Monell.

3

 The Court will deny this motion because it is untimely

and prejudicial to Defendants, given that the discovery period has long closed and, in any

event, Plaintiff’s proposed amendment of his Complaint would be futile.

In City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986), the Supreme Court

held that a municipal entity cannot be held liable under a Monell theory where there is no

underlying constitutional violation by the individual officer. The Court held:

If a plaintiff has suffered no constitutional violation at the hands of the

individual police officer, the fact that the department regulations might

have authorized use of unconstitutionally excessive force is quite beside the

point.

Id. See also Claybrook v. Birchwell, 199 F.3d 350, 361 (6th Cir. 2000); Ross v. Duggan,

492 F.3d 575, 589-90 (6th Cir. 2004) (holding, as a matter of law, that because Section

1983 plaintiffs could not prove that they suffered any constitutional tort, no liability

could be imposed upon the municipality or the city and county policymakers based on

allegedly unconstitutional policies, practices and procedures); S.P. v. City of Takoma

Park, 134 F.3d 260, 272 (4th Cir. 1998) (assuming training of officers was

3

 Monell v. New York City Dep’t of Social Services, 436 U.S. 658 (1985).

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unconstitutional, city could not be held liable where no constitutional violation by

officers occurred).

Here, the Court has already concluded that Plaintiff has not established that he

suffered any constitutional tort, therefore, as a matter of law no liability can be imposed

upon the Township of the Township policymakers based on allegedly unconstitutional

policies, practices and procedures. Allowing Plaintiff to file an amended complaint to

add such claims would, therefore, be futile. Therefore, Plaintiff’s Motion for Leave to

File an Amended Complaint will be DENIED.

CONCLUSION

For all of the reasons stated above in this Opinion and Order,

IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment

[Dkt. # 20] is GRANTED.

IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to File an

Amended Complaint [Dkt. # 25] is DENIED. 

Accordingly,

IT IS FURTHER ORDERED that this case be DISMISSED, in its entirety, WITH

PREJUDICE.

Let Judgment be entered accordingly.

s/Gerald E. Rosen 

United States District Judge

Dated: September 30, 2016

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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was served upon the parties and/or

counsel of record on September 30, 2016, by electronic and/or ordinary mail.

s/Julie Owens 

Case Manager, (313) 234-5135

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