693 F.3d 589 (6th Cir. 2012), 11-1073, Marcilis v. Township of Redford

Docket Nº:11-1073.
Citation:693 F.3d 589
Opinion Judge:BOYCE F. MARTIN, JR., Circuit Judge.
Party Name:Russell MARCILIS II, Felicia Marcilis, Jasmine Marcilis, Russell Marcilis I, and Marie Marcilis, Plaintiffs-Appellants, v. TOWNSHIP OF REDFORD, Brian Jones, Eric Woodall, Eric Gillman, John Butler, Kevin Jeziorowski, William Hand, Brad Boyle, Dave Livingston, and Chris Richardson, Defendants-Appellees.
Attorney:Shawn C. Cabot, Christopher Trainor & Associates, White Lake, Michigan, for Appellants. Reginald Maurice Skinner, United States Department of Justice, Washington, D.C., Joseph Nimako, Cummings, McClorey, Davis & Acho, P.C., Livonia, Michigan, Linda D. Fegins, City of Detroit Law Department, Detro...
Judge Panel:Before: MARTIN, SUTTON, and KETHLEDGE, Circuit Judges.
Case Date:September 06, 2012
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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693 F.3d 589 (6th Cir. 2012)

Russell MARCILIS II, Felicia Marcilis, Jasmine Marcilis, Russell Marcilis I, and Marie Marcilis, Plaintiffs-Appellants,

v.

TOWNSHIP OF REDFORD, Brian Jones, Eric Woodall, Eric Gillman, John Butler, Kevin Jeziorowski, William Hand, Brad Boyle, Dave Livingston, and Chris Richardson, Defendants-Appellees.

No. 11-1073.

United States Court of Appeals, Sixth Circuit.

September 6, 2012

Argued: April 19, 2012.

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ARGUED:

Shawn C. Cabot, Christopher Trainor & Associates, White Lake, Michigan, for Appellants.

Reginald Maurice Skinner, United States Department of Justice, Washington, D.C., Joseph Nimako, Cummings, McClorey, Davis & Acho, P.C., Livonia, Michigan, Linda D. Fegins, City of Detroit Law Department, Detroit, Michigan, for Appellees.

ON BRIEF:

Shawn C. Cabot, Christopher J. Trainor, Christopher Trainor & Associates, White Lake, Michigan, for Appellants.

Reginald Maurice Skinner, Richard Montague, Andrew D. Silverman, United States Department of Justice, Washington, D.C., Joseph Nimako, Cummings, McClorey, Davis & Acho, P.C., Livonia, Michigan, Linda D. Fegins, City of Detroit Law Department, Detroit, Michigan, for Appellees.

Before: MARTIN, SUTTON, and KETHLEDGE, Circuit Judges.

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

This is a civil rights case arising from federal task force narcotics raids conducted at two homes by Drug Enforcement Administration agents and police officers from Redford Township, Michigan, and Detroit, Michigan. The plaintiffs— members of the Marcilis family who were residents of the searched homes— filed a civil rights action pursuant to 42 U.S.C. § 1983 alleging that: (1) the federal agents and police officers engaged in excessive force, illegal search and seizure, false arrest, malicious prosecution, and retaliation in violation of the First Amendment; (2) Redford Township failed to train and supervise its police officers; and (3) the federal agents and police officers violated the " knock and announce" rule. After dismissing all of the claims against the federal agents, the district court granted the police officers'

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motion for summary judgment on all claims except the alleged violation of the " knock and announce" rule. The Marcilises appeal the district court's judgments dismissing the claims against the federal agents; denying the Marcilises' motion for adjournment of the scheduling order; and granting the police officers' motions for summary judgment. For the following reasons, we AFFIRM the judgments of the district court.

I.

On May 2, 2007, police executed search warrants for two homes: 5966 Manistique Street, in Detroit, Michigan, the home of Russell Marcilis I (Marcilis I) and his wife, Marie Marcilis; and 17268 Suffield Drive in Clinton Township, Michigan, the home of Russell Marcilis II (Marcilis II) and his wife, Felicia Marcilis, and the location Jasmine Marcilis was visiting at the time of the search. A confidential informant had provided information about the possession and sale of illegal narcotics at the homes; this information, along with a corroborating investigation by Redford Township Police Officer Brian Jones, provided the basis for the search warrant. The warrants authorized the federal agents and police officers to seize:

All suspected controlled substances, ... all monies and valuables derived from the sale of controlled substances and any items obtained through the sale of controlled substances. All firearms and items establishing ownership, control, occupancy or possession of the above-described place. All photographs, photo albums, and video cassettes that depict controlled substances and/or proceeds from controlled substances. All bank records, bank statements and safety deposit keys.

Drug Enforcement Administration Agents Brad Doyle and Dave Livingston, and police officers from Redford Township and Detroit conducted the searches. At approximately 10 a.m., the federal agents and the police officers arrived at 17268 Suffield Drive. After entering the residence, the agents and officers allegedly told both Marcilis II and Felicia to lie on the floor and held them at gunpoint. Officer Jones asked Marcilis II about the location of cocaine and $300,000.00. After detaining Marcilis II and Felicia for ten minutes in the house, the police officers handcuffed Marcilis II and Felicia and placed them in a police car. The police officers held Marcilis II and Felicia in the car for thirty minutes. The police subsequently took both Felicia and Marcilis II to a police station, allegedly holding Felicia for approximately eight hours and Marcilis II for three days. According to the police officers, Felicia and Marcilis II were detained for less than one day. On November 8, six months after the search, the United States filed related criminal charges against Marcilis II in district court; the district court dismissed the charges upon motion by the United States.

Immediately after searching the Suffield Drive home, the federal agents and the police officers went to 5966 Manistique Street and conducted a search of that home. Marcilis I, Marie, and Jasmine allege that the search lasted ninety minutes. The Marcilises allege that the federal agents and the police officers entered with their guns drawn and held their guns by their sides throughout the search. The federal agents and the police officers ordered everyone in the Manistique Street home to get on the floor. The federal agents and the police officers pushed Marcilis I, who was wrapped in bandages due to a prior injury and unable to lie down, to the floor. The federal agents and the police officers grabbed Marie's arm and pushed her to a couch, causing bruises. Marie suffers from cancer and diabetes; during the search, the agents and officers

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did not allow her to take her medications, despite her request that she be allowed to do so. According to Marie, the federal agents and the police officers " took her medications, destroyed vials of insulin, and broke her insulin needles," even though the medications were marked as prescriptions and she offered to provide medical documentation. After completing the search, the agents and officers left the Manistique Street home.

During the search of the Suffield Drive home, the federal agents and the police officers seized two small bags with leafy material inside, three Rolex watches, two other watches, two cell phones, a jar with leafy material inside, three chains, four bracelets, one ring, various documents, and three cars. Felicia and Marcilis II testified by affidavit that the federal agents and police officers seized from the Suffield Drive home, and did not return to them, the following items: Felicia's wedding ring, a concealed weapons permit, approximately $16,000.00 in cash, bank receipts, mail, and personal photographs. The police returned the three seized cars approximately one week after the search. At the Manistique Street home, the federal agents and the police officers seized an empty suspected cocaine wrapper, a clear plastic bag containing a white substance, two digital scales, and various documents. Marie and Marcilis I testified by affidavit that the police officers seized from the Manistique Street home, and did not return to them, the following items: the deed to the house, birth certificates, a marriage certificate, and personal photographs. According to the police officers, all items other than the cash which Marcilis II agreed to release to the police officers were returned to the Marcilises.

The Marcilises filed this action on April 30, 2009 and twice thereafter amended the complaint. On August 16, 2010, the district court granted the motion of the federal agents— Doyle and Livingston— to dismiss all claims against them for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Prior to the district court's ruling on the federal agents' motion to dismiss, the Marcilises sought a sixty-day adjournment of the scheduling order; the district court denied this request. On November 18, the district court granted in part the motions for summary judgment filed by Redford Township and the police officers. The district court dismissed all pending claims against Redford Township and the police officers except the claim against the police officers alleging a failure to knock and announce their presence. The Marcilises now appeal the dismissal of claims against the federal agents, the district court's refusal to grant Marcilises' request for adjournment of the scheduling order, and the grants of summary judgment to the police officers and Redford Township.

II.

A. Dismissal of Claims Against Federal Agents

The Marcilises appeal the district court's dismissal of claims against Drug Enforcement Administration Agents Doyle and Livingston. The Marcilises sued Doyle and Livingston in their individual and official capacities for violations of section 1983. Because Doyle and Livingston are employed by the federal government, and not a state government, the district court correctly construed the claims as arising under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). See 42 U.S.C. § 1983 (allowing civil rights claims for violations committed under the color of state law); Parry v. Mohawk Motors of Mich., Inc., 236 F.3d 299, 306 n. 1 (6th Cir.2000) (explaining that Bivens claims arise out of violations of an

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individual's federal constitutional rights by one who is acting under color of federal law). The district court also correctly construed the...

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