                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 17a0062n.06

                                           No. 16-1574
                                                                                         FILED
                                                                                   Jan 25, 2017
                                                                               DEBORAH S. HUNT, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

DONALD KATZ; KAREN MARKEL,                                )
                                                          )
       Plaintiffs-Appellants,                             )
                                                          )       ON APPEAL FROM THE
v.                                                        )       UNITED STATES DISTRICT
                                                          )       COURT FOR THE EASTERN
VILLAGE OF BEVERLY HILLS,                                 )       DISTRICT OF MICHIGAN
                                                          )
       Defendant-Appellee.                                )                   OPINION
                                                          )
                                                          )



       BEFORE:         GILMAN, GRIFFIN, and STRANCH, Circuit Judges.

       JANE B. STRANCH, Circuit Judge. Plaintiffs Donald Katz and Karen Markel are

husband and wife who resided in Beverly Hills, Michigan. They are both Jewish. The Plaintiffs

filed suit against the Village of Beverly Hills, alleging unlawful search and seizure in violation of

the Fourth Amendment and religious discrimination in violation of the Due Process and Equal

Protection Clauses of the Fourteenth Amendment. The district court granted summary judgment

to the Defendant on all claims, and the Plaintiffs now appeal. 1 For the following reasons, we

AFFIRM.




1
 The Plaintiffs voluntarily dismissed several Defendants, and the only remaining Defendant is
the Village of Beverly Hills.
No. 16-1574, Katz v. Village of Beverly Hills


                                         I. BACKGROUND

          The Plaintiffs’ Third Amended Complaint describes conduct that they allege shows

religious discrimination in violation of their constitutional rights. The events at issue center

around problems that the Plaintiffs had with their neighbors and the Beverly Hills Village Public

Safety Department.

          First, the Plaintiffs allege that, in the winter of 2005, their neighbor Audrey Lambrecht

complained that the area behind the Plaintiff’s garage was untidy. In response, Village code

enforcement officer Daniel Gosselin, who is responsible for enforcing village ordinances, visited

Katz. Gosselin advised Katz that he was not in violation of the municipal code, but suggested

that Katz clean up the area in the spring. In the early spring of 2005, Katz sent an email to the

Village to inquire “what the Village allowed for outdoor storage.” The Plaintiffs allege that, in

response, a temporary code officer, David Brywa, issued Katz a citation for a code violation

regarding the outside storage of pots and fencing.

          At the pre-trial conference for the citation, Katz alleges that Brywa said he issued the

citation to Katz because the back of the Plaintiffs’ garage was a “mess” and Katz was a pig.

Brywa also said that he believed Katz was “threatening to sue over the matter” and that he was a

“Jew lawyer.” Brywa informed Katz that Lambrecht complained about an accent light that had

fallen behind the Plaintiffs’ garage, but when Katz asked Brywa about one of Lambrecht’s lights

shining into his backyard, Brywa responded that “this is only about you and what you are.” The

citation was dismissed with prejudice. The Plaintiffs’ Complaint does not indicate if Katz

complained about Brywa to the Village or if anything occurred as a result of Brywa’s

discriminatory comments.2



2
    A question in Gosselin’s deposition indicates that Brywa retired in 2009 or 2010.
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No. 16-1574, Katz v. Village of Beverly Hills


       In late 2005 or early 2006, Lambrecht built a privacy fence in spite of the fact that the

Village had denied her application for a permit, and the Village did not take action against her

when the Plaintiffs complained. The Plaintiffs also allege that Lambrecht cut down a tree on

their property and stole the wood in April 2006, but the Village “took no steps to investigate or

prosecute” Lambrecht’s actions.

       In 2007 and 2008, the Plaintiffs contacted the Village “numerous times to complain” that

a different neighbor, Jeanne Baker, had bushes planted along the Plaintiffs’ driveway that were

too tall and impeded their vision entering and exiting the driveway. Although the Village agreed

that the bushes were a violation and contacted Baker, it never cited her for any violations. The

Plaintiffs allege that Baker allowed the bushes to die, but would “occasionally trim or sharpen

the branches in order to cause injury to plaintiffs and/or their guests.” The Plaintiffs complained

to the Village, and Gosselin instructed Baker to remove the dead bushes. But Gosselin did not

issue her a citation, and “[t]he dead bushes remain to this day.”

       In 2011, Baker installed flood lights on the side of her house that aimed directly at

Plaintiffs’ driveway. The Plaintiffs complained to the Village, and Gosselin agreed that the flood

lights were a code violation. Although Gosselin visited Baker on several occasions regarding the

flood lights, he did not issue her a citation and instead repositioned the lights himself.

       Around April 5, 2012, Baker filed a complaint with the Village alleging that Katz had

“stomped” on her bushes. Public safety officer Martin Bednarz issued a citation to Katz that

charged him with malicious destruction of property. The Case Report for this incident stated that

Baker was a victim of “[d]amage to [p]roperty,” more specifically to the “hedges between

homes.” Bednarz’s report stated that he “was dispatched to the listed address” on a malicious

destruction of property report. When he arrived, he met with Baker, who “state[d] that her



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No. 16-1574, Katz v. Village of Beverly Hills


neighbor to the east [kept] cutting her hedge and stomping on her bushes to destroy them” and

that this was an “ongoing problem.” Bednarz wrote that he was “personally aware of Sgt[.]

Cook taking a run like this” earlier that year and that PSO Fisher “stated that he has been to this

location on the same complaint.” Further, he noted that “[w]hen an officer makes the location

and tries to contact [Mr.] Katz, he will not come to the door and he hides in his home.” Bednarz

attempted to make contact by knocking on the door, ringing the doorbell, and having the

dispatcher call the home. Katz did not answer, however, and Bednarz left the citation on the

front door. In his deposition, Bednarz stated that he did not see Katz in the house or check

whether he was at work at the time.

       In the April 2012 Case Report, there is a notation from April 30, 2012 written by

BVDURANTJ, which reads in its entirety: “To correct bias in report.” In his deposition,

Bednarz states that the person who added this notation was the “person in records,” Jean Durant

(now Jean Malick). He stated that he did not put that note in, did not know what it was

regarding, and did not recall if his portion of the Report had been changed in any way.

       Bednarz stated that he issued the citation based on probable cause, which consisted of the

fact that he saw that “the bushes were cut down,” the neighbor’s information, and his belief that

it was an “ongoing issue” because “we had been out there before for the same thing.” However,

he did not investigate whether someone else could have caused damage to the bushes and did not

recall whether he took any pictures, but noted that, if he did, they would have been attached to

his report. The citation was dismissed on May 17, 2012.

       On May 18, 2012, Gosselin issued a Field Correction Notice to Baker because her shrubs

were sharp and too tall. The first notice stated that the shrubs had “become a hazard to anyone

on neighbor’s driveway” because of their height, and that they had “sharp sticks” that could



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No. 16-1574, Katz v. Village of Beverly Hills


“harm persons who may brush against them.” In his deposition, Gosselin noted that they were

tall and, when asked if it looked like they had been damaged, that “there was something cut, not

the top, but maybe on the sides, and they were cut on an angle.” He issued Baker another notice

on June 4, 2012, noting that he had read her letter but that she still needed to trim the bushes to

three feet high; he issued a final notice on August 1, 2012. She then complied and the bushes

were trimmed down to three feet tall and several were removed to improve visibility backing out

of the driveway. Gosselin stated that he typically gives notices to a violator when investigating a

complaint of an ordinance violation.

       Finally, Katz alleges that, on the evening of April 3, 2013, his parked vehicle was

vandalized with anti-Semitic slurs written in a substance “that was supposed to resemble blood.”

       On the last day of discovery, April 15, 2015, the Plaintiffs filed a Motion to Compel,

seeking additional discovery. However, one week later, on April 22, 2015, they withdrew their

motion. The Defendant filed a Motion for Summary Judgment on July 15, 2015 and the

Plaintiffs responded on August 19, 2015. In their response, the Plaintiffs asked the district court

to require that the Village produce more discovery, and to allow the Plaintiffs to amend their

response to the summary judgment motion once they had an opportunity to review the discovery.

The Plaintiffs attached a Rule 56(d) affidavit from their attorney, who stated that she withdrew

the Motion to Compel because she believed that the parties could “work to resolve the discovery

dispute.” Their attorney said that the Defendant indicated that it could not find additional

documents, but that during depositions taken June 18, 2015, witnesses “attested to having

documents available which were responsive” to the Plaintiffs’ requests. She further stated that

counsel for Plaintiffs emailed the Defendant on August 7, 2015 asking for additional documents,

but that the Defendant did not respond.



                                                -5-
No. 16-1574, Katz v. Village of Beverly Hills


       The Plaintiffs now appeal, arguing that the district court erred in granting summary

judgment on their equal protection and due process claims, and in denying their request for

additional discovery.

                                         II. ANALYSIS

A. Standard of review

       This court reviews a district court's grant of summary judgment de novo. Back v. Nestle

USA, Inc., 694 F.3d 571, 575 (6th Cir. 2012).

B. Equal protection claim

       The Plaintiffs allege that the Defendant violated their equal protection rights through

selective enforcement of ordinances, and that the treatment was based on their religious

affiliation. The district court held that much of the activity motivating the Plaintiffs’ equal

protection claim was barred by the statute of limitations, and that the “continuing violations

doctrine” did not apply as an exemption.        Further, the district court held that the factual

allegations that were not barred by the statute of limitations did not show a violation of the

Plaintiffs’ equal protection rights. We address these determinations below.

       1. Statute of limitations

       In Michigan, the statute of limitations for federal claims brought under 42 U.S.C. § 1983

is three years. Scott v. Ambani, 577 F.3d 642, 646 (6th Cir. 2009). “[T]he statute of limitations

begins to run when the plaintiff knows or has reason to know of the injury that is the basis of the

action.” Id. at 646. However, the running of the limitations period can be tolled under the

“continuing violation” doctrine. Sharpe v. Cureton, 319 F.3d 259, 266 (6th Cir. 2003). The

Sixth Circuit uses this doctrine “most commonly in Title VII cases, and rarely extends it to

§ 1983 actions.” Id. at 267. A plaintiff can establish a continuing violation if he or she shows a



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No. 16-1574, Katz v. Village of Beverly Hills


“longstanding and demonstrable policy of discrimination.” Id. at 268. “This requires a showing

by a preponderance of the evidence that some form of intentional discrimination against the class

of which plaintiff was a member was the . . . standing operating procedure.” Id. at 267 (quoting

Burzynski v. Cohen, 264 F.3d 611, 618 (6th Cir. 2001)). The plaintiff “must demonstrate

something more than the existence of discriminatory treatment in his case.” Id. at 268 (quoting

Haithcock v. Frank, 958 F.2d 671, 679 (6th Cir. 1992)).

       The Plaintiffs’ action was filed on April 5, 2013, and thus the relevant date for the statute

of limitations is April 5, 2010. The district court held that the continuing violation exception did

not apply because “the preponderance of the evidence does not establish that some form of

intentional discrimination against Jewish individuals was standard operating procedure in

Beverly Hills or among officers. Rather, the facts as alleged by Plaintiffs show that one

individual officer – Officer Byrwa – was utterly intolerant, and on one occasion, Officer Byrwa

discriminated against Katz on the basis of religious affiliation.” Katz v. Village of Beverly Hills,

No. 13-11568, 2016 WL 1259086, at *6 (E.D. Mich. Mar. 31, 2016). The Plaintiffs have not

shown a policy of discrimination and have not demonstrated more than the existence of

discriminatory treatment in their own case.       Thus, we agree that the continuing violations

doctrine does not apply and that all injuries that occurred before April 5, 2010 are time barred.3

       2. Factual allegations after April 5, 2010

       The Plaintiffs argue that there were separate, stand-alone events that occurred after this

date that give rise to an equal protection claim. The district court, however, found that the events

occurring after April 5, 2010 did not establish an equal protection claim sufficient to withstand

the Defendant’s summary judgment motion. The Constitution provides that “[n]o State shall . . .

3
 Further, Plaintiffs labeled allegations occurring before April 5, 2010 as “historical background”
only in their Third Amended Complaint.
                                                -7-
No. 16-1574, Katz v. Village of Beverly Hills


deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend.

XIV, § 1. “[This] clause is ‘essentially a direction that all persons similarly situated should be

treated alike.’” EJS Properties, LLC v. City of Toledo, 698 F.3d 845, 864 (2012) (quoting City of

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). ‘“To state a claim under the Equal

Protection Clause, a § 1983 plaintiff must allege that a state actor intentionally discriminated

against the plaintiff because of membership in a protected class.’” Henry v. Metropolitan Sewer

Dist., 922 F.2d 332, 341 (6th Cir. 1990) (citation omitted).

       The Plaintiffs argue that the Village treated the Plaintiffs and Baker differently, and that

this different treatment was based on religious discrimination in violation of their equal

protection rights. In support of their claim, they point first to the close proximity in time

between when Katz was cited for causing damage to Baker’s bushes on April 5, 2012, and when

Baker was given a notice that her bushes were too tall on May 18, 2012. The Plaintiffs argue

that it would have been impossible for Katz to have cut down Baker’s bushes and then, only six

weeks later, for them to be high enough for Gosselin to give Baker a correction notice.

However, the allegation was not that Katz destroyed all of Baker’s bushes, but rather that he

damaged and stomped her bushes a month and a half before Baker was given a notice about their

height. The pictures labeled April, 2012, attached to the Third Amended Complaint, show a

small section of the bushes down, but other sections that remained intact and tall.

       Next, the Plaintiffs argue that the parties were treated differently because, while Katz was

issued a citation by Bednarz for damaging Baker’s bushes, Baker was issued not a citation, but a

series of three notices, by Gosselin for having bushes that violated a municipal ordinance. The

Plaintiffs complain that for the two complaints regarding bushes, Baker’s violation was handled

by a code officer and Katz’s by a police officer. But, as the district court noted, the citation and



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No. 16-1574, Katz v. Village of Beverly Hills


notices involved the violation of offenses of unequal severity (a criminal misdemeanor vs.

violation of a municipal ordinance), which entail different enforcement officers and procedures.

See Katz, 2016 WL 1259086, at *6-7.

       Finally, the Plaintiffs point to the notation that appears under Bednarz’s writing on his

report, stating in its entirety “BVDURANTJ” and “[t]o correct bias in the report.” In his

deposition, Bednarz said that he did not know why this notation was added or whether there were

any changes made to his report. Without more in the record, it is difficult to interpret this phrase.

The Plaintiffs did file a Motion to Compel to obtain additional discovery including

interrogatories and police records, but withdrew the Motion a week later. The Plaintiffs did not

renew their Motion to Compel, and did not attach a Federal Rule of Civil Procedure 56(d)

affidavit to their response to the Defendant’s Motion for Summary Judgment until months later.

While this “bias” reference is concerning, the Plaintiffs have failed to provide sufficient evidence

from which we could find a genuine dispute of material fact as to whether religious

discrimination motivated the issuance of Katz’s citation.

       As the district court noted, even if the Plaintiffs had been able to demonstrate selective

treatment, they did not “demonstrate that this treatment was motivated by religion.” Katz, 2016

WL 1259086, at *7. Accordingly, Plaintiffs have failed to establish a violation of their equal

protection rights.

C. Other constitutional claims

       The Plaintiffs also allege that the district court erred in dismissing their municipal

liability claim. To show municipal liability, the Plaintiffs must show that an official municipal

policy caused a constitutional violation. Municipalities can be liable under § 1983 if “official

municipal policy of some nature caused a constitutional tort.” Monell v. Dept. of Social Servs. of



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No. 16-1574, Katz v. Village of Beverly Hills


New York, 436 U.S. 658, 691 (1978). A “municipality cannot be held liable solely because it

employs a tortfeasor,” id., and also “cannot be liable . . . absent an underlying constitutional

violation by its officers,” Blackmore v. Kalamazoo Cty., 390 F.3d 890, 900 (6th Cir. 2004)

(citing City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)). Therefore, “[t]o set forth a

cognizable § 1983 claim against a municipality, a plaintiff must allege that (1) agents of the

municipality, while acting under color of state law, (2) violated the plaintiff's constitutional

rights, and (3) that a municipal policy or policy of inaction was the moving force behind the

violation.” Memphis, Tenn. Area Local, Amer. Postal Workers Union, AFL-CIO v. City of

Memphis, 361 F.3d 898, 902 (6th Cir. 2004) (citing City of Canton v. Harris, 489 U.S. 378, 379

(1989)). A custom or policy can be shown by “proof of the knowledge of policymaking officials

and their acquiescence in the established practice.” Id.

       The Plaintiffs allege that Village officers violated due process by issuing Katz a citation

without conducting a proper investigation. They argue that the Village officials knew about this

practice because public safety officials kept daily logs of their activity, and thus that their actions

constituted official Village policy for which the Village should be held liable under City of

Memphis, 361 F.3d at 902. In sum, Plaintiffs allege that there were genuine issues of material

fact that should have precluded the grant of summary judgment for the Defendant.

       The Plaintiffs point to Paterek v. Village of Armada, 801 F.3d 630 (6th Cir. 2015), in

support of their argument that the Village violated their substantive due process rights. In

Paterek, the court found that a grant of summary judgment was inappropriate on a municipal

liability claim because genuine issues of material fact existed as to whether officers arbitrarily

enforced the plaintiffs’ land use permit. The court noted that substantive due process “protects

citizens from being subject to ‘arbitrary or irrational zoning decisions.’” 801 F.3d at 648



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No. 16-1574, Katz v. Village of Beverly Hills


(citation omitted). It examined whether the plaintiffs had shown both that a “constitutionally

protected property or liberty interest exists” and that it had “been deprived through arbitrary and

capricious action.” Id. (quoting Braun v. Ann Arbor Charter Twp., 519 F.3d 564, 573 (6th Cir.

2008)).

          The court first looked to state law to determine whether there was a recognized property

interest and, specifically, whether the plaintiffs had a “legitimate claim of entitlement” or a

“justifiable expectation” to rely on the zoning authorization. Id. (citation omitted). It determined

that, under Michigan law, they did have such an interest because they had been granted a Special

Approval Land Use permit and their entitlement was based on the express terms of that permit.

Id. In determining whether there had been arbitrary and capricious action, the court noted that

the plaintiffs were cited for violating their “outside storage” permit. Id. The court found that the

characterization of plaintiffs’ barbeque grill as outside storage “strains credulity,” and that the

defendant “admitted to handling Paterek in a different manner than other business owners.” Id.

Finally, it noted that the defendant had “failed to offer any explanation” as to why it tried to

prosecute the plaintiffs for failing to request a new permit when the defendant knew the permits

ran with the land; ultimately, the court found that summary judgment was inappropriate. Id. at

649.

          Assuming that Katz’s injury is based on the citation dismissed in 2012, he has not

demonstrated the same arbitrary treatment that the court found in Paterek. See id. at 648. There,

the defendant admitted to treating the plaintiffs differently than it treated others and the court

found that the enforcement behavior “strain[ed] credulity.” See id. In this case, however, there

is little evidence illustrating differing treatment. Although the Plaintiffs point to the discrepancy

in treatment when Katz was issued a citation and Baker was issued a warning, both the alleged



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No. 16-1574, Katz v. Village of Beverly Hills


misconduct at issue (e.g., a criminal misdemeanor versus the violation of a municipal ordinance)

and the officers involved were different. Though it appears that Bednarz conducted a less-than-

thorough investigation before issuing Katz a citation, the Plaintiffs have not provided evidence to

show that the treatment was based on religious discrimination. Because the Plaintiffs have not

established that a genuine dispute of material fact exists regarding their municipal liability claim,

we affirm the district court’s grant of summary judgment on this constitutional claim.

D. Request for additional discovery

       Finally, the Plaintiffs argue that the district court should have granted their request for

additional discovery. Rule 56(d) states that, “[i]f a nonmovant shows by affidavit or declaration

that, for specified reasons, it cannot present facts essential to justify its opposition,” the court can

“defer considering the motion or deny it[,] allow time to obtain affidavits or declarations or to

take discovery[,] or . . . issue any other appropriate order.” Fed. R. Civ. P. 56(d). “Because Rule

56[(d)] makes the trial court's allowance of additional discovery discretionary, our standard of

review is abuse of discretion.” Siggers v. Campbell, 652 F.3d 681, 695-96 (6th Cir 2011)

(quoting Egerer v. Woodland Realty, Inc., 556 F.3d 415, 426 (6th Cir. 2009)). The district court

noted that the Plaintiffs withdrew their Motion to Compel a week after filing it, and held that

they had a reasonable time for discovery. As discussed earlier, the Plaintiffs did not renew their

withdrawn Motion, but rather attached a Rule 56(d) affidavit to their response to the Defendant’s

Motion for Summary Judgment months later. We hold that the district court did not abuse its

discretion in denying Plaintiffs’ 56(d) discovery request.

                                        III. CONCLUSION

       For the foregoing reasons, we AFFIRM.




                                                 -12-
