The plaintiff filed this case alleging that his civil rights were viol - PDF document

1 The plaintiff filed this case alleging t
The plaintiff filed this case alleging that his civil rights were violated by the defendants whenthey procured and executed a warrant to search his residence. The case was referred to MagistrateJudge Binder on an order for general pretrial management under 28 U.S.C. § 636(b).The plaintiff, Frank Nali, was convicted of extortion in Michigan state court on February 26,2003. The plaintiff contends that a search of his home completed prior to his arrest and trial violatedhis rights. The plaintiff filed an amended eleven-count complaint on June 1, 2005 naming asdefendants the officers who conducted the search, the municipalities employing them, and themagistrate judge who authorized the search. The complaint alleges violations of two federalith a variety of state law claims. According to the pleadings and submissions of the parties, on September 19, 2002, City ofGrosse Pointe Woods police

2 detective received a complaint from Mary
detective received a complaint from Mary O’Brien, who claimed thatshe had a sexual relationship with the plaintiff for several years. O’Brien said that after she endedthe relationship, her ex-husband and some relatives received anonymous packages containingvideotapes showing Ms. O’Brien and the plaintiff having sex at the plaintiff’s home and a letteraccusing Ms. O’Brien of making such videos for money. Ms. O’Brien told Detective Chalut thatIn addition, Ms. O’Brien’s sister-in-law said that shortly she received one of the packages,she saw someone fitting the plaintiff’s description near her home. She then found the package inher mailbox. Based on this evidence, Ms. O’Brien and Detective Chalut believed the plaintiff senting the plaintiff to make or distribute. signed. In addition, at a state court hearing challenging the search in Nali’s criminal proceeding,Wayne County, Michigan c

3 ircuit judge Judge Kym L. Worthy stated
ircuit judge Judge Kym L. Worthy stated on the record, “[t]he magistratewas wrong in signing the search warrant.” Def. City of Grosse Pointe Farms Resp. to Order to FileSearch Warrant, Ex. 1, Tr. at 2.The search warrant was executed the same day it was issued, September 19, 2002. DetectiveChalut works for the City of Grosse Pointe Woods, but the plaintiff lives in the City of Grosse PointeFarms. It appears that Detective Chalut procured the assistance of officers from Grosse PointeFarms, the other defendants in this case, to help him conduct the search.The return of the search warrant indicates that videotapes, photos, papers, sexual devices,a computer, a comforter, and a camcorder with tripod were seized. The plaintiff claims that Ms.O’Brien voluntarily made the videos to show “her adeptness in her activities.” Pl.’s Resp. to Def.Grosse Pointe Woods Mot. Summ. J. at 2. He claims th

4 at she asked him for a copy of the video
at she asked him for a copy of the video soshe could start a career in pornography and implies that Ms. O’Brien is or was a prostitute. Theplaintiff does not suggest that the defendants had or could have had knowledge of these things, andtherefore none of these allegations or arguments has any bearing on the legal issues now before theCourt. The plaintiff claims that the police refused to show him the search warrant when theOn October 2, 2002, Judge Pierce signed a five-count felony complaint and warrant chargingMr. Nali with extortion, stalking, and three counts of obscenity, all in violation of Michigan law.On January 3, 2003, Wayne County, Michigan Circuit Judge Kym Worthy granted a motion madeby Mr. Nali to quash the search warrant. A transcript from the trial court indicates the trial judgefound that the search warrant “was, on its face, defective” primarily because it failed to “

5 allege[] at the city of Gross Pointe Woo
allege[] at the city of Gross Pointe Woods filed a motion for summary judgment. On August 15, 2005, theplaintiff filed a motion to amend his complaint.On December 22, 2005, Magistrate Judge Binder filed a report recommending that thedefendants’ various motions be granted. The magistrate judge concluded that: (1) Detective Chalutis entitled to qualified immunity because his belief that the affidavit supported a finding of probablecause was not objectively unreasonable; (2) the other officers were entitled to qualified immunitybecause they were relying on the validity of the search warrant obtained by Detective Chalut; (3)the plaintiff failed to allege sufficiently specific facts to support his conspiracy claim; (4) themunicipal defendants are not liable because the plaintiff could not show a policy or practice leadingCourt ought not exercise supplemental jurisdictionover the state law c

6 laims because the federal claims should
laims because the federal claims should be dismissed; and (6) the plaintiff’sproposed amendments to his complaint are futile.The plaintiff filed timely objections to the recommendation that the individual defendantsare entitled to qualified immunity and the municipal defendants should be dismissed. The plaintiffdid not object to the recommendation that the motion to further amend the complaint should bede novo the findings and conclusions of amagistrate judge on dispositive motions. , 237 F.3d 598, 603 (6th Cir. 2001). However, the plaintiff failed to object to the magistratejudge’s recommendation that the motion to amend the complaint be denied as futile. Generalobjections to a magistrate judge’s report and recommendation do not preserve all issues for review. “The first inquiry is whether the plaintiff has shown a violation of a constitutionally protected right;the second inquiry is

7 whether that right was clearly establis
whether that right was clearly established at the time such that a reasonableofficial would have understood that his behavior violated that right; and the third inquiry is ‘whetherthe plaintiff has alleged sufficient facts, and supported the allegations by sufficient evidence, toindicate that what the official allegedly did was objectively unreasonable in light of the clearlyTucker v. City of Richmond, 388 F.3d 216, 219 (6th Cir. 2004) (quotingHiggason v. Stephens, 288 F.3d 868, 876 (6th Cir. 2002); see also Champion v. Outlook Nashville,Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003)). However, theSixth Circuit more recently has reiterated the requirement announced in Saucier v. Katz that thisdefense must be analyzed in two stages. See Lyon v. City of Xenia, 417 F.3d 565, 571 (6th Cir.2005). It appears that the Supreme Court applies a two-step process: “When confronted with aclai

8 m of qualified immunity, a court must as
m of qualified immunity, a court must ask first the following question: Taken in the light mostfavorable to the party asserting the injury, do the facts alleged show the officer’s conduct violateda constitutional right?” Brosseau v. Haugen, 543 U.S. 194, 197 (2004) (per curiam) (internal quotesand citation omitted). The second step requires a determination if the constitutional violationtransgressed a right that was clearly established at the time, but “[i]t is important to emphasize thatthis inquiry must be undertaken in light of the specific context of the case, not as a broad general at 198 (internal quotes and citation omitted).The Supreme Court has stated that lower courts must follow the analytical steps in theprescribed order and first determine whether a constitutional right was violated before assessing thereasonableness of the officers’ conduct and whether the right was clear

9 ly established. Although the“rigidity o
ly established. Although the“rigidity of this requirement” has been the subject of some criticism, , 417 F.3d at 580 its privy) had a full and fair opportunity to litigate the issue.” United States v. Dominguez839, 842 (6th Cir. 2004) (citing Michigan v. Gates, 434 Mich. 146, 452 N.W.2d 627, 630-31 (1990).In this case, the plaintiff would seek to assert the state court judgment that the search warrant wasinvalid against the individual officers and the municipal defendants, none of whom were parties inthe state criminal proceedings. Since these defendants were not parties and did not have anthey cannot be estopped from pressing the issuehere, nor are they bound by the state court’s ruling. Shamaeizadeh v. Cunigann.4 (6th Cir. 2003) (noting in a similar civil rights case that the plaintiff “cannot collaterally estopthe officers from reng this issue because the officers – ‘the party agai

10 nst whom estoppel issought’ – did not ha
nst whom estoppel issought’ – did not have ‘a full and fair opportunity to litigate the issue’ during the suppressionWith respect to the adequacy of the search warrant affidavit, “[a]ll that the magistrate mustfind in order to issue a warrant is probable cause that evidence of a crime would be found at the siteto be searched.” Mays v. City of Dayton, 134 F.3d 809, 814 (6th Cir. 1998); see also United Statesv. Loggins, 777 F.2d 336, 338 (6th Cir. 1985) (probable cause exists when there is a fair probability,given the totality of the circumstances that contraband or evidence of a crime will be found in aparticular place). The state court judge concluded that the search warrant failed to show that anycrime had been committed. However, the affidavit plainly sets out the allegations of Mary O’Brienthat Frank Nali videotaped her sexual activity with him without her consent. The affidavitest

11 ablishes that the videotaping occurred i
ablishes that the videotaping occurred in Nali’s house (the place to be searched) in the City ofGrosse Pointe Farms, and it involved Nali and O’Brien. (3) the thing to be seized (perishable and easily transferrable or of enduring utilityto its holder?)(4) the place to be searched (mere criminal forum of convenience or secureoperational base?)., 438 F.3d at 572-73 (internal quotes omitted).In this case, although the videotape was made seven years earlier, there is evidence in theaffidavit that suggests that it was likely that some evidence of the taping activity would still be foundon the premises. O’Brien told Chalut that she “recently ended her relationship with Nali,” and sincethen Nali made threats to distribute copies of the tape. Making the tape itself suggests an intentionitems was in the plaintiff’s house, which suggestsan “entrenched” rather than a “nomadic” individual. The com

12 plainant’s sister-in-law received acopy
plainant’s sister-in-law received acopy of the tape, indicating that the plaintiff possessed the equipment to duplicate the item andrecently did so. The same can be said for production of the letter and the computer equipment thatBased on the information in this record, the Court is constrained to disagree with the learnedstate court judge. This Court finds that Detective Chalut’s affidavit contained sufficient facts topermit the state court municipal judge to find that probable cause existed that evidence of a crime(violation of Mich. Comp. Laws § 750.539d) would be found at Nali’s house on the day the searchThe Court concludes that the search about which Nali complains in his amended complaintwas conducted pursuant to a valid state search warrant. Therefore, Nali has not established that “theofficers[’] conduct violated a constitutional right.” , 533 U.S. at 201. “Because theplaint

13 iff[’s] Fourth Amendment rights were not
iff[’s] Fourth Amendment rights were not violated by the entries into the plaintiff[’s] . . .residence, ‘there is no necessity for further inquiries concerning qualified immunity’ as to the In considering whether Detective Chalut is entitled to qualified immunity, the magistratejudge concluded “that the search warrant was facially valid, and that a reasonably well-trainedofficer could have concluded that the affidavit established probable cause.” R&R at 8. The plaintiffobjects to this conclusion and argues that this Court is barred from making such a determination by doctrine declares that lower federal courts do not have subject matterjurisdiction in “cases brought by state-court losers complaining of injuries caused by state-courtjudgments rendered before the district court proceedings commenced and inviting district courtreview and rejection of those judgments.” Exxon Mobil Corp. v.

14 Saudi Basic Industries CorpU.S. 280, 28
Saudi Basic Industries CorpU.S. 280, 284 (2005). Surely the plaintiff does not mean to argue that this Court does not havesubject matter jurisdiction to hear the case he filed. In any event, the plaintiff here is not“complaining of injuries caused by state-court judgments.” He is complaining of injuries allegedlycaused by an illegal search of his home. The doctrine has no application here. also Todd v. Weltman, Weinberg & Reis Co., L.P.A., 434 F.3d 432, 437 (6th Cir. 2006) (“Thisargument ignores the fact that Plaintiff here does not complain of injuries caused by this state courtjudgment, as the plaintiffs did in and Instead, after the state court judgment,Plaintiff filed an independent federal claim that Plaintiff was injured by Defendant when he filed afalse affidavit.”). Nor is this Court bound by the state court’s determination of the invalidity of the search. The defendant

15 s have shown the absence of a genuine di
s have shown the absence of a genuine dispute on this issue, and the plaintiffhas failed to point to evidence showing otherwise. Since the plaintiff has produced no evidence to1472, 1479 (6th Cir. 1989). In addition, the plaintiff’s own complaint alleges that Magistrate JudgePierce “issued an illegal search warrant.” Am. Compl. ¶ 5. This is essentially an admission that theThe magistrate judge concluded that the other individual officers were also entitled toqualified immunity because they relied on a warrant obtained by a fellow officer. “[F]or purposesof section 1983 immunity, an officer is entitled to assume the validity of a search warrant securedby fellow officers.” Davison v. Frey, 837 F. Supp. 235, 240 (E.D. Mich. 1993) (quoting County of Tehama, 795 F.2d 791, 795 (9th Cir. 1986)). The plaintiff objects, arguing that DetectiveChalut is not a “fellow officer” because he is fr

16 om a different jurisdiction than the oth
om a different jurisdiction than the other individualdefendants. However, it is not the fact that the warrant was secured by an officer from the samejurisdiction that allows an officer to rely on its validity. It is the fact that the warrant was issued bya judge or magistrate judge that makes the officers’ reliance on the warrant reasonable. In the SixthCircuit, “an officer ordinarily receives qualified immunity if he or she relies on a judicially securedwarrant.” , 396 F.3d at 724. This follows from the Supreme Court’s “preference for warrants”and the great deference accorded to a magistrate judge’s decision. U.S. 897, 914 (1984). The fact that the police officer who obtained the warrant and the otherofficers assisting in its execution are from different jurisdiction is not relevant, and the plaintiff hascited no case holding otherwise. The plaintiff’s fifth objection will be ove

17 rruled. arrest need not be the criminal
rruled. arrest need not be the criminal offense as to which the known facts provide probable cause”); 396 F.3d at 725 (testing for objective reasonableness when evaluating probable cause for a search).litigant’s complaint is to be construed liberally, Middleton v. McGinnisSupp. 391, 392 (E.D. Mich. 1994) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)), that is, it isheld to “less stringent standards” than those drafted by attorneys. Haines v. Kerner, 404 U.S. 519,520 (1972). Such complaints, however, must plead facts sufficient to show a cognizable legal wronghas been committed from which the plaintiff may be granted relief. Fed. R. Civ. P. 12(b); Farettav. California, 422 U.S. 806, 834 n.46 (1975) (observing that “[t]he right of self-representation is nota license to abuse the dignity of the courtroom. Neither is it a license not to comply with the relevantrules of procedural and

18 substantive law”). “[T]his standard of
substantive law”). “[T]his standard of review does require more than thebare assertion of legal conclusions.” Columbia Natural Res., Inc. v. TatumCir. 1995). “In practice, ‘a . . . complaint must contain either direct or inferential allegationsrespecting all the material elements to sustain a recovery under some viable legal theory.’” In re, 991 F.2d 1236, 1240 (6th Cir. 1993) (quoting Scheid v. Fanny Farmer Candy Shops, Inc.The plaintiff’s complaint fails to allege that the officers were motivated by racism or class-based discrimination. Instead, the plaintiff’s complaint asserts that the officers were motivated bya desire for revenge “because of a prior lawsuit between plaintiff and G.P.F. and its officers.” Am.Compl. at ¶ 16. Nowhere in the plaintiff’s complaint is race or any other class-based animositymentioned. Even if all allegations in this count of the plaintiff’s complaint

19 were true, the plaintiffwould still not
were true, the plaintiffwould still not be entitled to relief. See Cline v. Rogers, 87 F.3d 176, 179 (6th Cir. 1996) (“Thecourt must construe the complaint in the light most favorable to the plaintiff, accept all factual cases authorizes the award of damages against a municipal corporation based on the actions of oneof its officers when in fact the jury has concluded that the officer inflicted no constitutional harm”).Because no such constitutional violation has been shown, summary judgment will be granted infavor of the municipal defendants.The magistrate judge also recommended that the Court dismiss the plaintiff’s state lawclaims. To be sure, the Court has supplemental jurisdiction over the those claims because they formpart of the same controversy as the plaintiff’s federal civil rights claims. (c) The district courts may decline to exercise supplemental jurisdiction over a claim(1

20 ) the claim raises a novel or complex is
) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the(3) the district court has dismissed all claims over which it has original jurisdiction,(4) in exceptional circumstances, there are other compelling reasons for declining28 U.S.C. § 1367(c). When a plaintiff’s federal claims have been dismissed on the merits, thequestion of whether to retain jurisdiction over the state law claims rests within the Court’sBlakely v. United Statesth Cir. 2002); Weeks v. Portage County, 235 F.3d 275, 280 (6th Cir. 2000) (observing that section 1367(c) “permit[s] thedistrict court to decline to exercise supplemental jurisdiction when that court has dismissed all ofthe claims over which it has original jurisdiction”). As a general rule, the dismissal of claims overwhich the federal court had original jurisdiction creates a

21 presumption in favor of dismissing witho
presumption in favor of dismissing withoutprejudice any state-law claims that accompanied it to federal court. It is furthered that the federal claims in the amended complaint areDISMISSED WITH PREJUDICE and the state claims are It is furthered that the plaintiff’s motions to compel the defendants to producethe identity of “John Doe” [dkt # 62] and for an order to show cause and an evidentiary hearing [dkt as moot. DAVID M. LAWSON PROOF OF SERVICE The undersigned certifies that a copy of the foregoing order was servedupon each attorney or party of record herein by electronic means or firstclass U.S. mail on July 20, 2006.s/Tracy A. Jacobs TRACY A. JACOBS Plaintiff,Case Number 04-10235-BCv.Magistrate Judge Charles E. BinderCITY OF GROSSE POINTE WOODS,ANDREW PAZUCHOWSKI, RICHARD MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION, GRANTING DEFENDANTS’ MOTIONS FOR

22 SUMMARY JUDGMENT AND TO DISMISS, DENYIN
SUMMARY JUDGMENT AND TO DISMISS, DENYING PLAINTIFF’S MOTION TO AMEND COMPLAINT, AND DENYING OTHER MOTIONS AS MOOT This matter is before the Court for a review of the plaintiff’s objections to a report filed byMagistrate Judge Charles E. Binder recommending that motions to dismiss and for summaryjudgment filed by all the defendants be granted and the case dismissed. The magistrate judge alsorecommended that the plaintiff’s motion to amend his complaint be denied. The Court agrees thatthe case should be dismissed, but for reasons different than articulated by the magistrate judge. TheCourt, therefore, will overrule the plaintiff’s objections, adopt the report in part, adopt therecommendation, grant the defendants’ motions, dismiss the federal claims with prejudice, anddecline supplemental jurisdiction over the state claims. The Court also will deny other pendingmotions, as described be