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March 13, 2026 Get Citation Alerts Download PDF Add Note

Elijah Eleby v. Detroit Land Bank Authority

Michigan Court of Appeals

• Citations: None known
• Docket Number: 373443
• Precedential Status: Non-Precedential

• Disposition: Affirm in Part, Vacate in Part, Remanded

• Opinion

• Authorities (16)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

• PDF

Disposition

Affirm in Part, Vacate in Part, Remanded

Lead Opinion

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

ELIJAH ELEBY, UNPUBLISHED
March 13, 2026
Plaintiff-Appellant, 11:54 AM

v No. 373443
Wayne Circuit Court
DETROIT LAND BANK AUTHORITY, LC No. 24-010323-CZ

Defendant-Appellee.

Before: MALDONADO, P.J., and M. J. KELLY and BAZZI, JJ.

PER CURIAM.

Plaintiff, Elijah Eleby, appeals as of right the trial court’s opinion and order granting
summary disposition to defendant, the Detroit Land Bank Authority (DLBA), under MCR
2.116(C)(8) for failure to state a claim on which relief can be granted. We affirm the trial court’s
grant of summary disposition, vacate the portion of the trial court’s order that found plaintiff’s
claim was moot, and remand for further proceedings consistent with this opinion.

I. BACKGROUND

This case arises out of nuisance abatement actions taken by defendant. Plaintiff owned a
home located at 3535 Springle Street and the immediate adjacent lot located at 3545 Springle
Street in Detroit. Before filing a nuisance action, defendant sent an investigator to document the
property’s condition. The investigator took photographs of plaintiff’s home from the street but
also walked up the driveway on the adjacent lot to take photographs of the back of the home. After
conducting its investigation, defendant brought a nuisance abatement action alleging that the home
on the property was vacant and a blighted structure that constituted a threat to the health and safety
of the public.

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Plaintiff filed a counterclaim, including a claim under 42 USC 1983 for the alleged
violation of his Fourth Amendment right against unreasonable search and seizure.1 Plaintiff
alleged that “[i]n the course of conducting its ‘nuisance abatement’ program, [defendant] regularly
conduct[ed] warrantless searches of the back yards of houses in Detroit, and its agents regularly
trespass[ed] on private property for the purpose of conducting those searches.” More specifically,
plaintiff alleged that defendant would send its agents to privately-owned residential properties
classified as vacant in the United States Postal Service database where agents would take
photographs of the property, complete a checklist of alleged code violations, and complete a form
affidavit that defendant would then attach to its complaint. With regard to plaintiff’s property,
plaintiff alleged that, on June 22, 2023, defendant conducted a warrantless search of the curtilage
of his home when defendant’s agent, Alan Lossing, took photographs of his home from his
driveway on the immediately adjacent lot.

In lieu of an answer, defendant moved for summary disposition under MCR 2.116(C)(7)
and MCR 2.116(C)(8).2 Defendant argued that plaintiff failed to state a claim under § 1983
because plaintiff did not sufficiently allege that defendant had an unlawful official policy or a
custom of tolerance of or acquiescence to federal rights violations. As described in defendant’s
brief in support of its motion for summary disposition, defendant “instructs its contractors to take
photographs of the rear of blighted and abandoned residential structures in Detroit to determine
whether nuisance abatement action is warranted.” Defendant argued that this policy was not
unconstitutional.

Plaintiff argued that accepting the factual allegations in his complaint as true and
construing them in the light most favorable to him as the non-moving party, he had adequately
pleaded a claim under § 1983 by alleging that defendant regularly conducts warrantless searches
of the backyards of residential properties and that its agents regularly trespass on private property
to conduct those searches. Plaintiff asserted that this clearly violated the Fourth Amendment’s
prohibition against unreasonable search and seizure. Further, plaintiff argued that defendant
improperly relied on evidence beyond the complaint to support its motion under MCR 2.116(C)(8)
and its argument that the home was abandoned.

The trial court granted summary disposition, concluding that plaintiff had not alleged that
defendant interfered with his “possessory interests” in his property or made factual allegations to
support a claim that defendant’s “interference was unreasonable.” Relying on Long Lake Twp v
Maxon, 513 Mich 101; 15 NW3d 118 (2024), the trial court reasoned that defendant may have had
a custom or policy of routinely sending contractors to conduct inspections of properties to
determine whether they are abandoned or comply with nuisance ordinances, but that these searches
were not unreasonable in the context of a civil nuisance abatement action. Accordingly, plaintiff
failed to demonstrate that defendant’s alleged policy or custom of conducting warrantless searches

1
The trial court granted plaintiff’s motion to sever the counterclaim, leading to the independent
action from which this appeal was taken.
2
Defendant’s motion for summary disposition addressed several claims; however, plaintiff
dismissed all claims other than his Fourth Amendment claim under 42 USC 1983. The Fourth
Amendment claim is the only claim addressed in this appeal.

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was “the moving force” behind the constitutional violation to establish liability under § 1983.
Moreover, the trial court concluded that any Fourth Amendment violation was moot because
exclusion of evidence was the principal remedy to deter Fourth Amendment violations and
defendant had already dismissed its nuisance abatement action.

Plaintiff now appeals.

II. ANALYSIS

A. STANDARD OF REVIEW

We review de novo a trial court’s decision on a motion for summary disposition. Maiden
v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Under MCR 2.116(C)(8), summary
disposition is warranted if the “opposing party has failed to state a claim on which relief can be
granted.” “A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim based on the
factual allegations in the complaint.” El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159;
934 NW2d 665 (2019). A motion under MCR 2.116(C)(8) may be granted only when the claims
alleged “are so clearly unenforceable as a matter of law that no factual development could possibly
justify recovery. Johnson v Pastoriza, 491 Mich 417, 435; 818 NW2d 279 (2012). The trial court
must decide the motion on the pleadings alone, and all well-pleaded factual allegations are
accepted as true and construed in a light most favorable to the nonmoving party. El-Khalil, 504
Mich at 160; MCR 2.116(G)(5). However, “the mere statement of a pleader’s conclusions,
unsupported by allegations of fact, will not suffice to state a cause of action.” ETT Ambulance
Serv Corp v Rockford Ambulance, Inc, 204 Mich App 392, 395; 516 NW2d 498 (1994).

B. FOURTH AMENDMENT CLAIM UNDER 42 USC 1983

Plaintiff argues on appeal that the trial court erred when analyzing his Fourth Amendment
claim. The underlying question is whether the trial court erred by concluding that plaintiff failed
to state a claim on which relief can be granted and by dismissing plaintiff’s claim under MCR
2.116(C)(8). Although we may agree with plaintiff’s arguments on appeal that the trial court erred
in its Fourth Amendment analysis, we nonetheless conclude that plaintiff failed to state a claim on
which relief can be granted.

At the outset, we address the trial court’s reliance on items beyond the pleadings when
considering defendant’s motion for summary disposition. MCR 2.116(G)(5) provides that “[o]nly
the pleadings may be considered when a motion is based on subrule (C)(8). . . .” The term
“pleading” is defined by MCR 2.110(A) and includes only: (1) a complaint; (2) a cross-claim; (3)
a counterclaim; (4) a third-party complaint; (5) an answer to a complaint, cross-claim,
counterclaim, or third-party complaint; and (6) a reply to an answer. Accordingly, the only
pleading properly considered when evaluating defendant’s motion for summary disposition under
MCR 2.116(C)(8) was the complaint itself, as defendant filed a motion for summary disposition
in lieu of an answer. Nonethless, and despite having severed plaintiff’s counterclaim from the
nuisance abatement action, the trial court cited defendant’s nuisance-abatement complaint and
requested relief in its analysis. Further, the trial court relied on the dismissal of the nuisance-
abatement action as evidence that there was no remedy for plaintiff’s claims. The trial court erred
in doing so. While the nuisance-abatement complaint was a “pleading,” it was a pleading for a

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separate case. Therefore, the nuisance-abatement complaint, and the dismissal of that action, could
not be used when analyzing whether plaintiff’s complaint was legally sufficient. See El-Khalil,
504 Mich at 160; MCR 2.116(G)(5).

Moreover, we also agree with plaintiff that the trial court made at least one mistake of law
when concluding that the warrantless search of private property does not violate the Fourth
Amendment because “it is not unreasonable to search a property when the proceedings are civil in
nature.” To the contrary, even when the underlying proceedings are civil, the Fourth Amendment
protects an individual’s right to privacy. Camara v Municipal Court of City and Cty of San
Francisco, 387 US 523, 530; 87 S Ct 1727; 18 L Ed 2d 930 (1967) (“It is surely anomalous to say
that the individual and his private property are fully protected by the Fourth Amendment only
when the individual is suspected of criminal behavior.”). See also Marshall v Barlow’s, Inc, 436
US 307, 312-313; 98 S Ct 1816; 56 L Ed 2d 305 (1978) (“If the government intrudes on a person’s
property, the privacy interest suffers whether the government’s motivation is to investigate
violations of criminal laws or breaches of other statutory or regulatory standards.”). Accordingly,
the trial court’s analysis, which relied heavily on the idea that there could be no Fourth Amendment
violation in the nuisance-abatement context, was erroneous.

However, turning to the issue of whether plaintiff failed to state a claim on which relief
could be granted, plaintiff sought to enforce his constitutional right to be free from unreasonable
search and seizure under 42 USC 1983, which provides in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in equity, or other proper proceeding for
redress. . . .

“Pursuant to its terms, 42 USC § 1983 provides a remedy against any person who, under color of
state law, deprives another of the rights protected by the Constitution.” Davis v Wayne County
Sheriff, 201 Mich App 572, 576; 507 NW2d 751 (1993), citing Collins v City of Harker Heights,
503 US 115, 120; 112 S Ct 1061; 117 L Ed 2d 261 (1992) and Monell v New York City Dep’t of
Social Services, 436 US 658, 690; 98 S Ct 2018; 56 L Ed 2d 611 (1978). The statute does not
confer substantive rights but merely supplies a remedy for deprivation of rights conferred by other
laws. Davis, 201 Mich App at 576, citing Graham v Connor, 490 US 386, 393-394; 109 S Ct
1865; 104 L Ed 2d 443 (1989) and York v Detroit (After Remand), 438 Mich 744, 757-758; 475
NW2d 346 (1991).

“It is well settled that a municipality is a person that can be sued under 42 USC 1983 for a
deprivation of rights protected by the United States Constitution or a federal statute.” Holeton v
City of Livonia, 328 Mich App 88, 106; 935 NW2d 601 (2019). See also Monell, 436 US at 690.
However, municipalities are responsible only for “their own illegal acts.” Pembaur v Cincinnati,
475 US 469, 479; 106 S Ct 1292; 89 L Ed 2d 452 (1986), citing Monell, 436 US at 665-683. A
municipality cannot be held vicariously liable for their employees’ actions. Payton v Detroit, 211
Mich App 375, 398; 536 NW2d 233 (1995). Rather, “in order to sustain a cause of action against
a municipality under § 1983, a plaintiff must show that an action pursuant to official municipal

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policy of some nature caused a constitutional tort.” Id. (quotation marks and citation omitted).
“Official municipal policy includes the decisions of a government’s lawmakers, the acts of its
policymaking officials, and practices so persistent and widespread as to practically have the force
of law.” Connick v Thompson, 563 US 51, 61; 131 S Ct 1350; 179 L Ed 2d 417 (2011).

In the present case, the allegation that defendant has an unlawful policy or custom is largely
made in one paragraph of plaintiff’s complaint, which provides that: “In the course of conducting
its ‘nuisance abatement’ program, Defendant DLBA regularly conducts warrantless searches of
the back yards of houses in Detroit, and its agents regularly trespass on private property for the
purpose of conducting those searches.” This allegation is conclusory and not sufficiently
supported by factual allegations. See ETT Ambulance Serv Corp, 204 Mich App at 395. Other
than an allegation that a warrantless search of his property occurred, plaintiff makes no specific
factual allegations to support his claim that defendant was “regularly” conducting such warrantless
searches of private properties or that warrantless searches as part of defendant’s nuisance-
abatement program were a widespread custom with the force of law. Thus, even assuming that
there was a Fourth Amendment violation, the allegations in the complaint assert no more than
impermissible vicarious liability for the actions of one investigator. Payton, 211 Mich App at 398.

“We may affirm the trial court when it reached the right result, even if we differ on the
reasoning underlying that result.” Bronson Health Care Group, Inc v State Auto Prop & Cas Ins
Co, 330 Mich App 338, 342 n 3; 948 NW2d 115 (2019).

C. MOOTNESS

Plaintiff argues on appeal that the trial court erred by concluding that his claim under
§ 1983 was moot because defendant had dismissed its nuisance abatement action. We agree that
plaintiff’s action for damages under § 1983 was not moot.

“We generally do not address moot questions or declare legal principles that have no
practical effect in a case.” Christenson v Secretary of State, 336 Mich App 411, 418; 970 NW2d
417 (2021) (quotation marks and citation omitted). An issue is moot when “an event has occurred
that renders it impossible for the court to grant relief.” Id. (quotation marks and citation omitted).
Likewise, an issue is moot when “a judgment, if entered, cannot for any reason have a practical
legal effect on the existing controversy.” Id. (quotation marks and citation omitted). However,
claims for damages can generally avoid mootness challenges. See Duckett v Solky, 341 Mich App
706, 732; 991 NW2d 852 (2022). “Damages claims are retrospective in nature—they compensate
for past harm. By definition, then, such claims cannot be moot.” Ermold v Davis, 855 F3d 715
(CA 6, 2017) (quotation marks and citation omitted).3

Section 1983 authorizes civil remedies and suits for monetary damages for the violation of
federal rights committed under the color of state law. Mays v Governor of Michigan, 506 Mich
157, 218 n 3; 954 NW2d 139 (2020) (MCCORMACK, C.J., concurring). An action under § 1983

3
Decisions of federal courts of appeals are not binding on this Court but may be persuasive.
Farmland Capital Solutions, LLC v Mich Valley Irrigation Co, 335 Mich App 370, 381 n 8; 966
NW2d 709 (2021)

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seeking damages to address a past constitutional harm easily overcomes a mootness challenge.
See Duckett, 341 Mich App at 731-732. Here, plaintiff sought monetary damages to compensate
him for the unlawful search of his property. Accordingly, plaintiff’s claim was not rendered moot
by the dismissal of the nuisance-abatement action. Further, in the context of § 1983, courts have
approved the award of even nominal damages when deprivations of constitutional rights are not
shown to have caused actual injury. Carey v Piphus, 435 US 247, 266 n 24; 98 S Ct 1042; 55 L
Ed 2d 252 (1978). A claim for nominal damages may generally “go forward in an otherwise-moot
case.” Duckett, 341 Mich App at 732 (quotation marks, citation, and ellipses omitted). Even
assuming that plaintiff may not have suffered actual damages in this instance due to the nature of
the constitutional violation, plaintiff’s claim would still not be moot.

D. OPPORTUNITY TO AMEND

Plaintiff also argues that the trial court erred when it granted defendant’s motion for
summary disposition and dismissal under MCR 2.116(C)(8) without addressing his request to
amend his complaint. We express no opinion on whether plaintiff is entitled to amendment but
agree that the trial court was required to consider plaintiff’s request.

“When deciding a motion for summary disposition based on MCR 2.116(C)(8), the court
must give the parties an opportunity to amend their pleadings as provided by MCR 2.118, unless
the amendment would be futile.” Lane v KinderCare Learning Centers, Inc, 231 Mich App 689,
696; 588 NW2d 715 (1998). See also MCR 2.116(I)(5). Although plaintiff did not file a motion
to amend his complaint, plaintiff raised the issue in his response to defendant’s motion for
summary disposition and then again at oral argument. Plaintiff expressly argued that “[i]f the
Court [was] inclined to grant the Motion, [plaintiff] should be afforded a chance to amend his
counterclaim, per MCR 2.116(I)(5).” However, the trial court’s opinion and order does not discuss
the possibility of amendment or MCR 2.116(I)(5). We remand with instruction to the trial court
to consider whether plaintiff is entitled to amend his pleadings or whether amendment would not
be justified on the basis of the evidence before the court.

III. CONCLUSION

We affirm the trial court’s order granting summary disposition to defendant under MCR
2.116(C)(8) because plaintiff has failed to state a claim on which relief can be granted, vacate the
portion of the trial court’s order that found plaintiff’s claim was moot, and remand for further
proceedings consistent with this opinion. We do not retain jurisdiction.

/s/ Allie Greenleaf Maldonado
/s/ Michael J. Kelly
/s/ Mariam S. Bazzi

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