Bye v. Munn et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL ROBERT BYE,
Plaintiff,
v.
JUSTUN MUNN, et al.,
Defendants.
____________________________/
Case No. 1:23-cv-1312
HON. JANE M. BECKERING
OPINION AND ORDER
This is a pro se civil rights action, filed pursuant to 42 U.S.C. § 1983, in which Plaintiff
Michael Bye alleges that Defendants Justun Munn and Dave Cunningham “violated his Fourth,
Fifth, and Fourteenth Amendment rights when they entered his dwelling [to conduct a building
inspection] without his authorization or an administrative warrant” (see First Amended Complaint,
ECF No. 4). 	Defendant Munn filed a motion for summary judgment (MSJ, ECF No. 51). 	The
matter was referred to the Magistrate Judge, who issued a Report and Recommendation (R&R)
(ECF No. 60), recommending that the Court grant Defendant Munn’s motion.
Presently before the Court are Plaintiff’s Objections to the Report and Recommendation
(ECF No. 61). 	In accordance with 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure
72(b)(3), the Court has reviewed de novo those portions of the Report and Recommendation to
which objections have been made. 	The Court will deny the objections for the reasons stated in
greater detail below.
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I. 	ANALYSIS
A. Plaintiff’s Objections to the Report and Recommendation Lack Merit
Plaintiff has not “specifically identif[ied]” the portions of the Report and Recommendation
to which his objections are made, he has not separately labeled his objections, and he has not
meaningfully articulated the basis for several of his objections in violation of this Court’s rules.
See W.D. Mich. LCivR 72.3(b). The Court will address Plaintiff’s objections ad seriatim as they
are presented in Plaintiff’s filing.
First, Plaintiff “objects” that the Magistrate Judge did not consider an affidavit from an
electrician that was signed after the close of discovery, submitted to the Magistrate Judge after
Plaintiff’s summary judgment response deadline, and reattached to Plaintiff’s Objections (see Obj.,
ECF No. 61 at PageID.299–300; Opp., ECF No. 63 at PageID.325–326). This Court’s rules state
that a party opposing a dispositive motion shall file any “supporting materials” along with the
responsive brief, which Plaintiff failed to do here. See W.D. Mich. LCivR 7.2(c); see also Hayes
v. Comm’r of Soc. Sec., 895 F.3d 449, 453 (6th Cir. 2018) (noting that a district court’s local rules
carry the “force of law”) (citing Hollingsworth v. Perry, 558 U.S. 183, 191 (2010)). Furthermore,
even if Plaintiff had not violated applicable rules, it is within the sound discretion of a court ruling
on a summary judgment motion “whether to consider affidavits submitted in an untimely fashion.”
See Hooks v. Hooks, 771 F.2d 935, 946 (6th Cir. 1985). Courts within this circuit routinely decline
to consider untimely affidavits submitted after summary judgment deadlines. See, e.g., Moore v.
Univ. of Memphis, No. 10-2933-AJT-TMP, 2013 WL 12482117, at *2 (W.D. Tenn. Aug. 14, 2013)
(collecting cases). Plaintiff has advanced no argument or authority indicating that the Magistrate
Judge erred in declining to rely on the untimely affidavit at issue, which the Court again notes was
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generated after the expiration of applicable summary judgment deadlines and filed in violation of
Court rules. 1 This objection lacks merit.
Second, Plaintiff “objects” that “the Report and Recommendation also states that Plaintiff’s
first and initial complaint, and response lacks declarations of veracity” (Obj., ECF No. 61 at
PageID.300–301). To the extent Plaintiff attempts to argue that he submitted a verified complaint,
he fails to meaningfully engage with either the Magistrate Judge’s reasoning on that point or the
controlling authorities indicating that Plaintiff’s unverified pleadings are not evidence for purposes
of summary judgment (see R&R, ECF No. 60 at PageID.274–275). This objection lacks merit.
Third, Plaintiff “objects” to the Magistrate Judge’s recitation of the undisputed facts
relevant to Defendant Munn’s motion for summary judgment by arguing—without citation to the
record or applicable authorities—that the “author of the courts [sic] Report and Recommendation
doesn’t realize the facts contained are not the real facts” (see Obj., ECF No. 61 at PageID.301–
303). 	Again, 	Plaintiff 	fails 	to 	“specifically 	identify” 	the 	portions 	of 	the 	Report 	and
Recommendation to which his objection is made, and he fails to meaningfully articulate the basis
for this “objection” with citations to the record, instead recycling assertions from his unverified
pleadings and earlier briefing. See W.D. Mich. LCivR 72.3(b). This objection is without merit.
Fourth, Plaintiff “objects” that the Magistrate Judge improperly concluded Plaintiff lacked
“STANDING because Plaintiff was not injured which is another untrue statement,” at certain
1 Furthermore, even if the affidavit had been timely submitted—which it was not—it nevertheless
conflicts with undisputed documentary evidence in the record indicating that Plaintiff and his
contractor consented to an inspection of Plaintiff’s property (see MSJ Ex. 4, ECF No. 52-5 at
PageID.191 (“Lift chain to go through gate, or just walk around.”)). A “conclusory affidavit” that
is both unsupported by “specific evidence” and that “conflicts with all of the document[s]” in the
undisputed record “does not create a genuine dispute of material fact.” 	Pierce v. Ocwen Loan
Servicing, LLC, No. 20-6057, 2021 WL 4129526, at *2 (6th Cir. Sept. 10, 2021); accord G.D.
Deal Holdings, LLC v. Baker Energy, Inc., 291 F. App’x 690, 696 (6th Cir. 2008).
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points conflating the Magistrate Judge’s analysis of Plaintiff’s failure to establish the “invasion of
a legally protected interest” with Plaintiff’s allegation that he suffers from “PTSD” apparently
caused by Defendants’ inspection of an unoccupied property after Plaintiff had applied for a permit
requiring an inspection (see Obj., ECF No. 61 at PageID.303–305). 	Again, Plaintiff fails to
meaningfully articulate the basis for this objection or provide citations to applicable authorities or
evidence in the record. See W.D. Mich. LCivR 72.3(b). This objection lacks merit.
Fifth, 	Plaintiff “objects” 	to 	the 	Magistrate 	Judge’s 	conclusion 	regarding 	qualified
immunity, offering general legal propositions and reminding the Court that it should not “weigh
evidence” (see Obj., ECF No. 61 at PageID.306–307). Again, Plaintiff fails to identify the specific
analysis by the Magistrate Judge to which he objects, and he fails to meaningfully articulate, with
citations to the record and applicable authority, how the Magistrate Judge erred in the Report and
Recommendation. See W.D. Mich. LCivR 72.3(b). This objection lacks merit as well. 2
Last, Plaintiff has submitted a new affidavit with three supporting exhibits—which he
signed on August 28, 2025, after the date on which the Magistrate Judge issued the Report and
Recommendation—in support of his Objections (see Bye Aff., ECF Nos. 62 to 62-3). 	Courts
within this circuit “generally do not consider new evidence raised in objections to a magistrate
judge’s report and recommendation.” See Devore v. Tennessee Dep’t of Safety, No. 3:09-00822,
2012 WL 3779305, at *1 (M.D. Tenn. Aug. 30, 2012) (citing Murr v. United States, 200 F.3d 895,
2 Defendant Munn’s response to Plaintiff’s Objections asserts—without citation to the relevant
portions of the record—that “Plaintiff continues to insist that the Fifth Amendment applies to local
officials” and “Plaintiff objects that the R&R wrongly concluded he lacked a reasonable
expectation of privacy in the unoccupied property” (Response, ECF No. 63 at PageID.327). Given
Plaintiff’s failure to comply with Court rules, it is unclear that he has raised or preserved any such
objections. 	See W.D. Mich. LCivR 72.3(b). 	Nevertheless, assuming without deciding that
Plaintiff properly preserved these objections, the Court concludes that they lack merit given
Plaintiff’s failure to “properly articulate” the basis for them or to provide citations to controlling
authority indicating that the Magistrate Judge erred. See id.
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902 n.1 (6th Cir. 2000) (“[A]bsent compelling reasons, [the Magistrate Judge Act] does not allow
parties to raise at the district court stage new arguments or issues that were not presented to the
magistrate.”). 3 Plaintiff has not attempted to justify the late introduction of this new evidence, and
the Court declines to consider it here. See id.
In sum, Plaintiff’s objections fail to identify any factual or legal error in the Magistrate
Judge’s analysis or conclusion. Accordingly, this Court will adopt the Magistrate Judge’s Report
and Recommendation as the Opinion of this Court.
B. Further Instructions to the Magistrate Judge
Federal Rule of Civil Procedure 72(b) states that “in reviewing a magistrate judge’s
recommendation, the district judge may . . . return the matter to the magistrate judge with
instructions.” See Moore v. United States Dep’t of Agric., No. 17-5363, 2018 WL 1612299, at *2
(6th Cir. Jan. 31, 2018). The Court will issue further instructions pursuant to Federal Rule of Civil
Procedure 72(b). See id.
The Magistrate Judge has recommended that the Court grant Defendant Munn’s motion for
summary judgment in part on standing grounds—indicating that the Court lacks subject matter
jurisdiction over Plaintiff’s claims—and the Magistrate Judge’s reasoning appears to apply equally
to Plaintiff’s claims against both Defendants Munn and Cunningham (R&R, ECF No. 60 at
PageID.290) (“Because Munn and Cunningham entered the unoccupied house only after having
3 Accord TD Invs., LLC v. Nat’l City Bank, No. 1:21-CV-337, 2022 WL 950395, at *1 (S.D. Ohio
Mar. 30, 2022) (“The Declaration is not a valid objection to the Magistrate Judge’s Order and
Report and Recommendation. The Court will not consider new evidence at this stage.”); Gossard
v. Warden, Madison Corr. Inst., No. 2:14-CV-1842, 2017 WL 2735585, at *4 (S.D. Ohio June 26,
2017) (“Plaintiff submitted supporting evidence for the first time on his objection to the R&R,
[and] the Court declines to give Plaintiff another bite at the apple by considering the declaration.”);
Hunter v. Joboulian, No. 1:17-CV-832, 2019 WL 1085300, at *2 (W.D. Mich. Mar. 7, 2019) (“The
Court declines to consider arguments raised for the first time on objection to the Report and
Recommendation.”).
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received permission to do so from Bye’s contractor, Bye suffered no invasion of a legally protected
interest and thus does not have an injury sufficient to support standing or subject matter jurisdiction
in this matter.”). The Report and Recommendation, however, does not analyze whether the Court
has jurisdiction to consider Plaintiff’s claims against Defendant Cunningham because Defendant
Cunningham lacks counsel and did not move for summary judgment (see R&R, ECF No. 60 at
PageID.271).
The Court notes that—regardless of whether Defendant Cunningham has moved for
summary judgment—the Court has a sua sponte duty to consider whether it has jurisdiction. See
Clark v. United States, 764 F.3d 653, 657 (6th Cir. 2014). And the “court may grant summary
judgment sua sponte” provided that the party opposing summary judgment “had notice that the
court was considering summary judgment on the claim, as well as a reasonable opportunity to
present its arguments and evidence of the claim.” Aubin Indus., Inc. v. Smith, 321 F. App’x 422,
423 (6th Cir. 2008) (citing FED. R. C IV. P. 56(f)(3)). The Court will thus “return this matter” with
the additional instruction that the Magistrate Judge issue a separate report and recommendation
addressing whether Plaintiff has standing to pursue his claims against Defendant Cunningham and
whether Defendant Cunningham is entitled to summary judgment based on the undisputed record,
permitting Plaintiff to submit additional briefing if necessary. 4 See Moore, 2018 WL 1612299 at
*2; Aubin Indus., 321 F. App’x at 423 (citing F ED . R. C IV. P. 56(f)(3)).
4 To the extent the Magistrate Judge authorizes additional briefing, the Magistrate Judge should
consider in the first instance whether Plaintiff is entitled to submit new evidence—generated after
the close of discovery and after the initial dispositive motion deadline—that would have been
equally relevant to whether Plaintiff has standing to pursue his claims against Defendant Munn.
See Aubin Indus., Inc, 321 F. App’x at 423 (noting that a party must receive notice that the Court
is considering whether to grant summary judgment sua sponte on specific claims and must have a
reasonable opportunity to be heard as to those claims); see also Pierce, 2021 WL 4129526 at *2
(noting that a “conclusory affidavit” that is both unsupported by “specific evidence” and that
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II. 	CONCLUSION
For the reasons stated above:
IT IS HEREBY ORDERED that Plaintiff’s Objections (ECF No. 61) are DENIED and
the Report and Recommendation of the Magistrate Judge (ECF No. 60) is APPROVED and
ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that Defendant Munn’s Motion for Summary Judgment
(ECF No. 51) is GRANTED and Defendant Munn is TERMINATED from the case.
IT IS FURTHER ORDERED that the Magistrate Judge shall issue a separate report and
recommendation pursuant to the instructions provided in this Opinion and Order addressing
Plaintiff’s claims against Defendant Cunningham and providing Plaintiff with an appropriate
opportunity to be heard as to those claims if needed.
Dated: December 3, 2025
JANE M. BECKERING
United States District Judge
“conflicts with all of the document[s]” in the undisputed record “does not create a genuine dispute
of material fact”); accord G.D. Deal Holdings, LLC, 291 F. App’x at 696.
/s/ Jane M. Beckering
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