Gathing v. Kalamazoo Charter Township et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EARNEST GATHING, JR.,
Plaintiff, 	Hon. Hala Y. Jarbou
v. 	Case No. 1:25-cv-994
CHARTER TOWNSHIP OF
KALAMAZOO, et al.,
Defendants.
____________________________________/
REPORT AND RECOMMENDATION
This matter is before me pursuant to the Court’s January 6, 2026 Order Regarding Report
and Recommendation (ECF No. 21) for review of Plaintiff Gathing’s proposed amended
complaint. (ECF No. 22) The issue is whether the amendment would be futile.
Although the procedural posture is a motion for leave to amend—typically considered a
non-dispositive ruling—out of an abundance of caution I address the matter by Report and
Recommendation due to the potentially dispositive outcome of my review. Pursuant to 28 U.S.C.
§ 636(b)(1)(B), I recommend that the Court deny Gathing leave to amend.
I. 	Applicable Standard
A proposed amended complaint is considered “futile if the amendment could not withstand
a Rule 12(b)(6) motion to dismiss.” Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420
(6th Cir. 2000). A Rule 12(b)(6) motion to dismiss for failure to state a claim on which relief may
be granted tests the legal sufficiency of a complaint by evaluating its assertions in a light most
favorable to the plaintiff to determine whether it states a valid claim for relief. See In re NM
Holdings Co., LLC, 622 F.3d 613, 618 (6th Cir. 2010).
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Pursuant to Federal Rule of Civil Procedure 12(b)(6), a claim must be dismissed for failure
to state a claim on which relief may be granted unless the “[f]actual allegations [are] enough to
raise a right for relief above the speculative level on the assumption that all of the complaint’s
allegations are true.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). As the Supreme
Court has held, to survive a motion to dismiss, a complaint must contain “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 677-78 (2009). This plausibility standard “is not akin to a ‘probability requirement,’ but it
asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. If the complaint
simply pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the
line between possibility and plausibility of ‘entitlement to relief.’” Id. As the Court further
observed, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. at 678-79.
In deciding a motion to dismiss, a court “may consider the Complaint and any exhibits
attached thereto, public records, items appearing in the record of the case and exhibits attached to
defendant’s motion to dismiss so long as they are referred to in the Complaint and are central to
the claims contained therein.” Bassett v. National Collegiate Athletic Ass’n, 528 F.3d 426, 430
(6th Cir. 2008).
Because Gathing is proceeding pro se, his pleading must be construed liberally. Haines v.
Kerner, 404 U.S. 519, 520 (1972). But this standard “is not without its limits, and does not
‘abrogate basic pleading essentials in pro se suits.’” Clark v. Johnston, 413 F. App’x 804, 817 (6th
Cir. 2011) (quoting Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)). Stated differently,
“[l]iberal construction does not require a court to conjure allegations on a litigant’s behalf.” Erwin
v. Edwards, 22 F. App’x 579, 580 (6th Cir. 2001). To require otherwise “would not only strain
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judicial resources . . . but would also transform the district court from its legitimate advisory role
to the improper role of an advocate seeking out the strongest arguments and most successful
strategies for a party.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
II. 	Analysis
As an initial matter, ignoring the law cited in my December 19, 2025 Report and
Recommendation (ECF No. 18 at PageID.536–37), Gathing continues to insist that he may
represent his son, Isiah, in this action pursuant to Federal Rule of Civil Procedure 17(c). As
previously noted, because Gathing is not a licensed attorney, he may not represent his son in federal
court even if he has been formally appointed Isiah’s guardian. Therefore, I will disregard the
portions of the proposed amendment asserting claims on behalf of Isiah.
As for Gathing, his proposed amendment presents his claims as various events (A through
F) that occurred between August 28, 2018, and November 17, 2024. Because Gathing cites
documents filed in Case No. 1:24-cv-1330, which are part of the Court’s public record, I will
consider those documents in determining whether he states a claim.
Incident A
Incident A alleges a traffic stop without probable cause, a false arrest, and impoundment
of Gathing’s vehicle. Gathing alleges that on June 7, 2024, 1 Defendant Sergeant Timothy Millard
of the Kalamazoo Department of Public Safety (KDPS) conducted a traffic stop without probable
cause, 	falsely 	claimed VIN 	(vehicle 	identification 	number) 	discrepancies 	after 	reviewing
Gathing’s title and insurance, ordered him out of out of his vehicle under a pretextual Terry search,
1 Based on the cited documents, June 4, 2024, appears to be the correct date. Case No. 1:24-cv-
1330, ECF No. 1-1 at PageID.12, 22.
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and arrested and jailed him for the weekend. (ECF No. 22 at PageID.558.) Gathing also alleges
that the charges were dismissed.
Gathing’s conclusory allegations alone fail to state a plausible Fourth Amendment
violation supporting an unlawful traffic stop, Terry search, and arrest. The documents Gathing
cites demonstrate the opposite of what he alleges. On June 4, 2024, while on routine patrol in the
area of Frank Street and Cooley Street, Sergeant Millard observed two subjects making contact in
the roadway on Cooley. This was an area known for illegal drug activity. Sergent Millard turned
his vehicle around and, as he drove down the block, saw a black BMW without a license plate
drive away from the curb without signaling. Case No. 1:24-cv-1330, ECF No. 1-1 at PageID.12.
He followed the vehicle until it turned onto northbound Park Street, at which point he initiated a
traffic stop.
Sergeant Millard approached Gathing’s vehicle and obtained his license, the title to the
vehicle, and proof of insurance. Gathing stated that he had just purchased the vehicle and had not
had an opportunity to register the title with the Secretary of State. Sergeant Millard examined the
title but saw that none of the boxes for completion of a sale had been filled out and that Connor
Brueck was still listed as the registered owner. Id. at PageID.13.
Observing that Gathing appeared nervous, and given that Gathing had just come from an
area known for illegal controlled substance activity and had parked his vehicle in front of a house
from which Sergeant Millard had previously arrested several individuals for drug-related activity,
Sergeant Millard requested that a K-9 unit respond for a potential “Free Air” sniff search. Id. While
waiting for the K-9 unit, Sergeant Millard asked Gathing to step out of the vehicle to eliminate the
potential for evidence destruction or access to any firearm inside the vehicle. As Gathing stepped
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out, Sergeant Millard asked him whether he had any firearms on his person. After a brief hesitation,
Gathing responded, “nah.” Id.
Sergeant Millard advised Gathing that he would be performing a Terry pat-down search of
his person based on the foregoing circumstances and his observation of a firearm-like protrusion
on Gathing’s right side. Id. As Sergeant Millard lifted Gathing’s shirt, he observed an empty black
holster, suggesting a firearm in the car. Sergeant Millard immediately handcuffed Gathing and
asked him whether he had a firearm in his vehicle. Gathing responded that a firearm was inside
the center console. When Sergeant Millard asked Gathing whether he had an active CPL
(concealed pistol license), Gathing said he did not. Sergeant Millard then searched the center
console and found a black Taurus 9 mm handgun, which he determined was registered to Gathing.
Nothing else was seized from the vehicle. Id. After interviewing Gathing about the firearm,
Sergeant Millard arrested Gathing for a CCW (concealed carry weapon) violation based on
Gathing’s admission that he lacked a CPL permit. Id. at PageID.13.
First, Sergeant Millard had probable cause to stop Gathing. “A police officer legally may
stop a car when he has probable cause to believe that a civil traffic violation has occurred.” United
States v. Blair, 524 F.3d 740, 748 (6th Cir. 2008). Sergeant Millard had probable cause to initiate
a traffic stop of Gathing’s vehicle. Pursuant to Mich. Comp. Laws § 257.225, a motor vehicle
operated on the public streets must have a license plate “attached to the rear of the vehicle.” The
lack of a license plate on Gathing’s vehicle provided probable cause for the traffic stop. Next,
Sergeant Millard lawfully requested Gathing to exit his vehicle during the stop. Moore v. Oakland
Cnty., 126 F.4th 1163, 1168 (6th Cir. 2025) (“An officer may order the motorist to exit the
vehicle.” (citing Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6 (1977) (per curiam))). Once
Gathing exited the vehicle, Sergeant Millard had a proper basis to conduct a Terry search based
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on his observation of a firearm-shaped protrusion under Gathing’s shirt. See Mimms, 434 U.S. at
112 (holding that a bulge under the driver’s jacket justified a Terry pat-down for a weapon); United
States v. Stennis, 457 F. App’x 494, 499 (6th Cir. 2012) (“The officer’s perception of a bulge
suspected to be a weapon provides reasonable suspicion that the individual may be armed and
dangerous.”). Last, once Gathing admitted the presence of a firearm in the center console and his
lack of a CPL, Sergeant Millard had probable cause to arrest Gathing for a CCW violation.
Incident B
Gathing alleges that on January 12, 2024, Defendants Kubacki, Aday, Howe, Anderson,
Treu, Anderson, Barnhart, Marshall, Betts, Cavric, Hubbell, Pena, Rariden, and Visser “executed
an overbroad search warrant unsupported by probable cause.” (ECF No. 22 at PageID.558.)
Gathing claims that Defendants falsely alleged firearm involvement and that firearms unrelated to
any offense were seized and retained in violation of the Second and Fourth Amendments. (Id.)
Here again, Gathing’s allegations are simply legal conclusions that lack factual support for a
plausible claim, and the documents he cites refute his claim.
On December 19, 2023, KDPS Officers responded to 829 N. Park St. for a reported
felonious assault arising out of a domestic dispute. At the scene, Shawniah Green, the complaining
party, reported that Daniel Dean, her boyfriend/child’s father, had pointed a small black handgun
at her during an argument and ran into the residence. Officers then cordoned off the home in
anticipation of obtaining a warrant to arrest Dean from the residence and search for the firearm.
As the officers waited outside, individuals (not Dean) exited the residence and attempted to leave
the area, at least one of whom was arrested for resisting and obstructing the officers. Some of these
individuals denied that Dean was inside the residence. In addition, during this time, Gathing
attempted to enter the residence but was detained after he failed to comply with the officers’ orders
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not to enter. Before the warrant request was completed, Dean exited the residence and was detained
without incident. Dean did not possess a handgun at that time. Accordingly, the warrant request
was amended to exclude the arrest of Dean but to include the seizure of any and all firearms and
ammunition based on the amount of time Dean was inside the residence. A magistrate subsequently
issued a warrant to search and seize any and all firearms and ammunition. Case No. 1:24-cv-1330,
ECF No. 1-1 at PageID.81–101.
The officers searched the residence as authorized by the warrant and seized several
handguns, rifles/shotguns, BB-guns, and ammunition. Id. at PageID.83. Officers spoke with
Earnest Gathing, Sr., who indicated that he owned the property. Gathing Sr. said that, with the
exception of the long guns, he did not know about any of the firearms inside the residence and did
not want them. He explained that he had used the long guns for hunting but was too old to hunt
and asked if the officers to take the guns and “get rid of them.” He also denied knowledge of an
AK-47 hidden in the attic and said he did not want it in the house either. Id. at PageID.88.
As the cited documents show, the warrant was supported by probable cause because the
officers had information from the complaining witness, as well as a statement from a resident
referring to firearms inside the residence, supporting the request for a warrant to search for firearms
and ammunition. Moreover, the affiant clearly did not falsely allege firearm involvement. Finally,
apart from the warrant authorizing the search and seizure, the investigation reports show that the
officers reasonably relied upon statements by Gathing, Sr., the owner of the property, as freely
giving consent to seize the guns, which he did not want in his house. See Lavin v. Thornton, 959
F. Supp. 181, 190 (S.D.N.Y. 1997) (holding that a reasonable person would have interpreted the
plaintiff’s parents’ consent to seize property from their house as encompassing the plaintiff’s
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firearms and certificates inside the house). In short, Gathing fails to allege a plausible Fourth
Amendment violation.
Incident C
In this incident, Gathing alleges that Officer Dajanick Barlow conducted a search of the
outside of 907 N. Park Street pursuant to an administrative warrant authorizing seizure of junk
autos from the property that was based on stale photographs from 2021–22. He further alleges that
he was subjected to “fraudulent municipal fines” that were wrongfully attached to another property
and created a foreclosure risk. (Id. at PageID.21–22.) These allegations do not state a claim.
On or about April 5, 2023, Officer Barlow submitted an affidavit for an administrative
warrant stating that on January 21, 2022, the City of Kalamazoo Code Enforcement staff inspected
907 N. Park St. and observed one or more junk automobiles sitting in the driveway in violation of
the Kalamazoo City Code. The same day, the City sent Gathing a ten-day junk auto nuisance
violation asking that the junk auto(s) be removed or repaired within ten days. As of March 16,
2023, Code Enforcement staff reported that the junk auto blight remained at the residence. Officer
Barlow sought the warrant to place a tag on the auto(s) giving the owner an additional ten days to
remove the junk auto(s) and thereafter to tow the junk auto(s) if not timely removed. Case No.
1:24-cv-1330, ECF No. 1-1 at PageID.107–09. Contrary to Gathing’s allegations, the 2021
photographs, id. at PageID.114–15, were not the only basis for the warrant, as Officer Barlow’s
affidavit stated that visual inspection confirmed that the same conditions remained as of the date
of the warrant request. The City’s Office of Professional Standards also explained this to Gathing
in its letter of March 25, 2024, in response to his citizen’s complaint. Id. at 116–17. Finally,
Gathing’s allegation about fines being attached to the wrong property does not amount to a
constitutional violation. See Overton v. United States, No. CV-83-0878, 1994 WL 408519, at *2
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(E.D. Wash. Mar. 7, 1994) (holding that filing of liens on the plaintiff’s property did not constitute
a seizure under the Fourth Amendment as there was no invasion of the premises); McCarthy v.
United States, 563 F. Supp. 236, 239 (N.D. Ill. 1983) (“The filing of the tax lien by Straughn did
not involve an invasion of plaintiff’s premises or seizure of his personal property and as such
cannot establish a fourth amendment violation.”).
Incident D
This incident relates to Incident A. Gathing alleges that the CCW charge following the
June 4, 2024 stop and arrest was dismissed on July 15, 2024. Id., PageID.24. He further alleges
that his seized firearm was unlawfully retained. Finally, he alleges that Defendants Franks and
Mason refused to honor the court order and denied his application for a license to purchase a
firearm. (Id. at PageID.22.) As noted above, the firearm was properly seized as Sergeant Millard
had probable cause to arrest Gathing for a CCW violation. Gathing fails to allege how any of the
alleged acts violated his constitutional rights. As noted above, it is not the Court’s function to
propound claims for a pro se plaintiff. Thus, these allegations fail to state a claim.
Incident E
This incident is a conglomeration of traffic and other offenses. First, Gathing alleges that
on August 28, 2018, 2 Officer Christian Smith, whom Gathing acknowledges is deceased,
unlawfully stopped him while legally parked based on illegal and unenforceable signage, which
was later removed. He further alleges that all charges were dismissed. Second, Gathing alleges
that on December 21, 2021, Defendants Cooper and Carns charged him with “fraudulent” DWLS
(Driving While License Suspended), which was dismissed without prejudice. Third, he alleges that
2 The documents Gathing cites actually indicate that the incident occurred on August 8, 2018.
Case No. 1:24-cv-1330, ECF No. 1-1 at PageID.59–60.
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Defendants Demonte and Spann charged him with interfering with a public safety officer on
February 24, 2022. Next, he alleges that Defendant Hart cited him for a seat belt violation on April
20, 2021. Finally, he alleges that Defendants Carns and Cooper charged him for executing a left
turn in front of moving traffic on December 21, 2021. (Id.)
These allegations fail to state a claim for a number of reasons. As to the claim against
Officer Smith, as noted in the prior Report and Recommendation, he is deceased. Regardless, the
fact that the charge was dismissed does not mean that Officer Smith lacked probable cause. The
same is true for the remaining incidents. In fact, Gathing alleges no facts for any of the alleged
violations suggesting that the defendant officers lacked probable cause for the offense, be it a civil
traffic violation or a criminal violation.
In addition, to the extent Gathing asserts that these incidents support claims under 42
U.S.C. § 1983, they are all barred by the three-year statute of limitations applicable to Section
1983 claims filed in Michigan. Although the statute of limitations is an affirmative defense, if the
allegations in a complaint show that relief is barred by the applicable statute of limitations, the
complaint is subject to dismissal for failure to state a claim upon which relief may be granted.
Jones v. Bock, 549 U.S. 199, 215 (2007); Cataldo v. U.S. Steel Corp., 676 F.3d 542, 547 (6th Cir.
2012); see also Mattox v. Edelman, 851 F.3d 583, 590 (6th Cir. 2017) (citing Jones and holding
that if, on the face of a complaint, the allegations show that relief is barred by an affirmative
defense (lack of exhaustion), the complaint is subject to dismissal for failure to state a claim).
State statutes of limitations and tolling principles apply to determine the timeliness of
claims raised in lawsuits brought pursuant to Section 1983. Wilson v. Garcia, 471 U.S. 261, 268-
69 (1985). Section 1983 civil rights actions are governed by the state statute of limitations for
personal injury actions. Wallace v. Kato, 549 U.S. 384, 387 (2007). For such actions in Michigan,
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the statute of limitations is three years. Mich. Comp. Laws § 600.5805(2); Carroll v. Wilkerson,
782 F.2d 44, 44 (6th Cir. 1986) (per curiam). Accrual of the claims for relief is a question of federal
law. Collyer v. Darling, 98 F.3d 211, 220 (6th Cir. 1996); Sevier v. Turner, 742 F.2d 262, 272 (6th
Cir. 1984). The statute of limitations begins to run when the aggrieved party knows or has reason
to know of the injury that is the basis for the action. Collyer, 98 F.3d at 220.
Here, the limitations period commenced when each of the tickets/citations/charges were
issued because Gathing had reason to know of any injury at those times. Gathing filed his prior
lawsuit in this Court on December 18, 2024. His claims based the August 8, 2018 stop by Officer
Smith and the April 20, 2021 stop by Officer Hart were clearly time-barred when Gathing filed his
first lawsuit. As for the other three claims, occurring on December 21, 2021, and February 24,
2022, the limitations period was tolled because the Court dismissed Gathing’s prior claims for lack
of subject matter jurisdiction and not on the merits. Pursuant to Mich. Comp. Laws § 600.5856,
the limitations period is tolled “during the pendency of a prior suit between the parties where the
prior action was not adjudicated on the merits.” Sherrell v. Bugaski, 169 Mich. App 10, 17 (1988).
However, the limitations period resumed on January 28, 2025, when the case was dismissed. The
claims arising on December 21, 2021, became barred three days after the dismissal and the
February 24, 2022 claim became barred, at the latest, by March 15, 2025, more than four months
before Gathing commenced the present action in state court.
Incident F
This incident occurred on November 17, 2024, when Gathing alleges that unidentified
KDPS officers subjected him to an unlawful stop, retaliation, and evidence tampering. While
Gathing might have stated a Fourth Amendment claim, the claim is defective because he fails to
assert it against any particular individual. Thus, Gathing fails to state a claim here as well.
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Monell Allegation
Gathing also includes a claim of Monell liability against the City of Kalamazoo. (ECF No.
22 at PageID.562.) Such a claim would be futile because it is simply a recitation of legal
conclusions without any supporting facts. See Bailey v. City of Ann Arbor, 860 F.3d 382, 388–89
(6th Cir. 2017); Rayfield v. City of Grand Rapids, 373 F. Supp. 3d 962, 977 (W.D. Mich. 2018)
(“Conclusory assertions [of a policy or custom] are not enough to state a Twombly plausible Monell
claim.”).
Motion for Return of Property
Gathing has filed a Motion for Return of Property (ECF No. 31) that the KDPS Officers
seized from his home on January 22, 2026. I recommend that the Court deny the motion as it is
based on Federal Rule of Criminal Procedure 41(g), which has no application to the alleged
circumstances. Gathing is free to pursue his state remedies. Moreover, it appears that the motion
is moot, at least as to Gathing’s cell phone, since KDPS has notified him that he may make an
appointment to regain his phone. (ECF No. 33-1.)
Proper Caption
Finally, Gathing contends there is an issue with the caption. As he correctly notes (ECF
Nos. 24 and 25), it has been changed at least twice since the case was removed to this Court.
Gathing commenced this action in state court against the Charter of Kalamazoo Municipality
employees and listed numerous individuals in the body of his complaint. (ECF No. 1-1 at
PageID.5, 14–15.) Following removal, it appears that the Clerk changed the first named Defendant
in the caption to Charter Township of Kalamazoo and then to Christopher Frank. The docket report
currently lists Charter Township of Kalamazoo as the first named Defendant. It is clear that
Gathing did not intend to sue the Charter Township of Kalamazoo, as all of the individuals sued
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were employed by the City of Kalamazoo. Given the original caption naming “employees,” it is
not even clear that Gathing intended to sue the City of Kalamazoo. In any event I recommend that
pursuant to Federal Rule of Civil Procedure 10(a), the Court direct the Clerk to name Christopher
Frank as the first-named Defendant in the caption, as he is the first individual Defendant Gathing
identified in his original complaint.
IV. 	Conclusion
Because, as set forth above, I conclude that Gathing’s proposed amendment is futile, I
recommend that the Court deny his motion for leave to amend (ECF No. 19) and his motion for
return of property (ECF No. 31) and terminate this action.
Dated: February 17, 2026 	/s/ Sally J. Berens
SALLY J. BERENS
U.S. Magistrate Judge
NOTICE
OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Court
within 14 days of the date of service of this notice. 28 U.S.C. § 636(b)(1)(C). Failure to file
objections within the specified time waives the right to appeal the District Court’s order. See
Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
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