Russell Smith, et al v. Nick Roundtree, et al

Filing

Opinion issued by court as to Appellants Lynette Smith and Russell W. Smith. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-17577

Date Filed: 08/21/2017

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-17577
Non-Argument Calendar
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D.C. Docket No. 2:15-cv-00004-LGW-RSB
RUSSELL W. SMITH,
LYNETTE SMITH,
Plaintiffs-Appellants,
versus
NICK ROUNDTREE,
ARCHIE DAVIS,
ANTHONY BROWN,
THE CITY OF DARIEN,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(August 21, 2017)
Before MARCUS, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:

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Plaintiffs-Appellants Russell Smith and Lynette Smith (collectively, “the
Smiths”) appeal from the district court’s grant of summary judgment in favor of
Nick Roundtree, Archie Davis, and Anthony Brown (collectively, “individual
Defendants”). The Smiths brought this action pursuant to 42 U.S.C. § 1983 for
alleged violations of their Fourth, Fifth, Sixth, and Fourteenth Amendment rights.
Their allegations stem from an incident during which the individual Defendants,
police officers of the city of Darien, Georgia, helped Debra Newman obtain
personal items from a shed on the Smiths’ land. On appeal, the Smiths argue that
the district court erroneously concluded that: (1) they did not have standing to raise
a Fourth Amendment unreasonable seizure claim; (2) even if there were a genuine
issue of fact regarding standing, the individual Defendants were entitled to
qualified immunity on the unreasonable seizure claim; and (3) the Smiths had not
properly raised state law claims. After careful review, we affirm.
The essential, undisputed facts are these. Newman is the mother of one of
the Smiths’ grandchildren, and she lived with the Smiths for a short time.
Newman complained to local police officers that the Smiths were preventing her
from obtaining her personal property from their shed. When Brown went to the
Smiths’ home in response to Newman’s complaint, Mrs. Smith said that she would
not allow Newman onto her property or give her any items from the shed without a
warrant or court order. Roundtree arrived later that day and informed Mrs. Smith
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that she had to let Newman retrieve her property if she owned items in the shed.
Mrs. Smith responded that she and Mr. Smith would obey a warrant or a court
order, and she asked that the officers return only when they had a warrant or a
court order and when Mr. Smith had returned from work.
Roundtree spoke with Davis on the phone, and Roundtree indicated that he
had spoken to a magistrate judge about the situation. From their conversation,
Davis mistakenly believed that Roundtree already had obtained a court order, but
Roundtree had not. Davis went with Newman to the Smiths’ home after Mr. Smith
had returned from work. Davis told the Smiths that they needed to comply with
Newman’s request to retrieve items from their shed because there was a court
order. The Smiths allowed Newman to collect several boxes from the shed, which
they claim contained items owned by their adult children. The Smiths do not know
whether Newman took any items that belonged to them. The Smiths later learned
that no court order had been issued.
The Smiths filed the instant § 1983 action against the individual Defendants
and the City of Darien, alleging violations of their Fourth, Fifth, Sixth, and
Fourteenth Amendment rights. The City of Darien and Roundtree filed motions to
dismiss the complaint. At a hearing on the motions, the Smiths conceded that the
only viable constitutional claim set forth in the complaint was a Fourth
Amendment unlawful seizure claim. They also conceded that a state law claim for
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conversion was inadequately pled. The district court dismissed the City of Darien
as a defendant and dismissed all claims except the Fourth Amendment unlawful
seizure claim against the individual Defendants. The individual Defendants later
filed motions for summary judgment. In response, the Smiths asserted, for the first
time, several state law claims and violations of the Georgia Constitution. The
district court concluded that the Smiths lacked standing to raise the Fourth
Amendment wrongful seizure claim, the individual Defendants were entitled to
qualified immunity on that claim, and the state law claims were improperly raised.
This appeal followed.
We review the district court’s grant of summary judgment de novo.
Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1273 (11th Cir. 2010). Summary
judgment is warranted when, viewing the evidence in the light most favorable to
the non-movant, the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a).
In this case, the district court did not err in determining that the Smiths
lacked standing to raise their Fourth Amendment unlawful seizure claim. In order
to satisfy Article III’s “case or controversy” requirement, a plaintiff must show
that: (1) he has suffered an injury in fact that is concrete and particularized as well
as actual or imminent; (2) the injury is fairly traceable to the challenged conduct of
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the defendant; and (3) the injury is likely to be redressed by a favorable decision.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–
81 (2000). An “injury-in-fact” requires an invasion of a legally protected interest.
Hollywood Mobile Estates, Ltd. v. Seminole Tribe of Fla., 641 F.3d 1259, 1265
(11th Cir. 2011).

Here, the undisputed evidence showed that the individual

Defendants did not invade the Smiths’ legally protected interest.
A “seizure” of property under the Fourth Amendment “occurs when there is
some meaningful interference with an individual’s possessory interests in that
property.” Soldal v. Cook Cnty., Ill., 506 U.S. 56, 61 (1992) (internal quotation
marks and citation omitted). The Smiths testified in depositions that their adult
children owned the seized property.

However, Fourth Amendment rights are

personal rights that cannot be asserted vicariously. See Rakas v. Illinois, 439 U.S.
128, 133–34 (1978). The Smiths also admitted that they were unsure whether
Newman had taken any of their property because personal items they thought were
missing might be in the shed. Mere speculation is insufficient to create a genuine
issue of material fact. See Cordoba v. Dillard’s Inc., 419 F.3d 1169, 1181 (11th
Cir. 2005).
Nor did the Smiths have a possessory interest by virtue of a bailment. “A
bailment involves either an express or implied mutual agreement to safe keep
property between the owner and its custodian either gratuitously or for some
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consideration.” Bohannon v. State, 555 S.E.2d 112, 114 (Ga. App. 2001). Under
Georgia law, “[w]here, although an article is turned over generally to be stored on
premises owned by another, where the owner retains the right to remove it at will
without the knowledge of the person in charge of the premises, no bailment arises.”
Mossie v. Pilgrim Self-Serv. Storage, 258 S.E.2d 548, 549 (Ga. App. 1979). The
Smiths testified in depositions that their children were free to enter the shed and
obtain their property without their consent at any time.

Accordingly, the

undisputed record reveals that the Smiths were not bailees for the items seized.1
The district court also did not err in determining that the individual
Defendants were entitled to qualified immunity.

Qualified immunity shields

government officials sued in their individual capacities from liability against a
plaintiff’s claims under § 1983 if the officials’ conduct did not “violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.” Grider v. City of Auburn, Ala., 618 F.3d 1240, 1254 (11th Cir.
2010) (quotations omitted). “The initial inquiry in a qualified immunity case is
whether the public official proves that he was acting within the scope of his
discretionary authority when the allegedly wrongful acts occurred.” Id. at 1254
n.19 (quotation omitted). The parties do not dispute that the individual Defendants
1

The Smiths argue, for the first time on appeal, that they had a possessory interest in
their children’s seized property under O.C.G.A. § 51-10-2, which creates a tort action for
interference with mere possession of chattel. However, the Smiths did not raise this argument
before the district court and, therefore, we will not consider it on appeal. Access Now, Inc. v.
Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004).
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were acting within the scope of their discretionary authority. Courts then apply a
two-part framework to evaluate a qualified immunity defense. Id. at 1254. The
court must ascertain “whether the plaintiff’s allegations, if true, establish a
constitutional violation.”

Id.

If there was a constitutional violation, another

inquiry is “whether the right violated was ‘clearly established.’” Id. This analysis
may be done in the order most appropriate for the case. Id. Because the Smiths
failed to demonstrate on the undisputed evidence before the district court that they
had a possessory interest in the seized items, the district court did not err in
determining that there was no constitutional violation. See Soldal, 506 U.S. at 61.
Finally, the district court did not err by concluding that the Smiths failed to
properly raise any state law claims. The complaint did not name any causes of
action under Georgia law. At the motion to dismiss stage, the Smiths argued that
they were entitled to assert a Georgia law conversion claim in the action, although
they conceded that a conversion claim was insufficiently pled, and they did not
attempt to amend their complaint.

In response to the motions for summary

judgment, the Smiths sought to add due process, trespass, and assault claims under
Georgia law and the Georgia Constitution. However, plaintiffs may not amend
their complaint at the summary judgment stage, once discovery has commenced,
by raising new claims. See Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d
1286, 1297 (11th Cir. 2006) (rejecting a new basis for a pending claim raised
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during summary judgment proceedings). Thus, the district court properly declined
to address these claims.
Accordingly, we affirm the judgment of the district court.
AFFIRMED.

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