BARKER v. BAY COUNTY SHERIFF'S OFFICE et al

Filing 39

ORDER granting 32 Motion for Summary Judgment; granting 33 Motion for Summary Judgment; denying 35 Motion to Strike. Signed by JUDGE RICHARD SMOAK on 1/22/2015. (jcw)

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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
MATTHEW BARKER,
Plaintiff,
v.

CASE NO. 5:14-cv-102-RS-GRJ

BAY COUNTY SHERIFF’S OFFICE, et al.,
Defendants.
_________________________________________/
ORDER
Before me are the following motions and responses:
1. Defendant Garrison’s Motion for Summary Final Judgment (Doc. 32), and
Plaintiff’s Objection to the Defendant’s, Robert Lee Garrison’s, Motion for
Summary Judgment (Doc. 34).
2. Defendant Bay County Sheriff Frank McKeithen’s Motion for Summary
Judgment (Doc. 33), and Plaintiff’s Objection to the Defendant’s Motion for
Summary Judgment (Doc. 38).
3. Plaintiff’s Motion to Strike Paragraph Four (4) of Defendant’s Affidavit in
Support of the Defendant’s Motion for Summary Judgment (Doc. 35), and
Defendant Garrison’s Response to Plaintiff’s Motion (Doc. 37).
STANDARD OF REVIEW

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The basic issue before the court on a motion for summary judgment is
“whether the evidence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a matter of law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). The moving party has
the burden of showing the absence of a genuine issue as to any material fact, and in
deciding whether the movant has met this burden, the court must view the
movant’s evidence and all factual inferences arising from it in the light most
favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144
(1970); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).
An issue of fact is material “if it is a legal element of the claim under the
applicable substantive law which might affect the outcome of the case.” Wright v.
Sandestin Investments, LLC, 914 F. Supp. 2d 1273, 1278 (N.D. Fla. 2012). Thus, if
reasonable minds could differ on the inferences arising from undisputed facts, then
a court should deny summary judgment. Miranda v. B & B Cash Grocery Store,
Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank & Trust v.
Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)). However, a mere
‘scintilla’ of evidence supporting the nonmoving party’s position will not suffice;
there must be enough of a showing that the jury could reasonably find for that
party. Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson,
477 U.S. at 251).

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BACKGROUND
I will accept the facts in the light most favorable to the Plaintiff. See Galvez
v. Bruce, 552 F.3d 1238, 1239 (11th Cir. 2008) (citing Vinyard v. Wilson, 311 F.3d
1340, 1343 n.1 (11th Cir. 2002)). “‘All reasonable doubts about the facts should be
resolved in favor of the non-movant.’” Id. (quoting Burton v. City of Belle Glade,
178 F.3d 1175, 1187 (11th Cir. 1999); Clemons v. Dougherty County, 684 F.2d
1365, 1368-69 (11th Cir. 1982).
In support of Plaintiff’s claims under the Driver’s Privacy Protection Act
(DPPA),18 U.S.C. § 2721 et seq., and under 42 U.S.C. § 1983, Plaintiff alleges
that in the summer of 2012, Plaintiff found in his possessions certain items
belonging to Defendant Garrison’s wife from when Plaintiff and Ms. Garrison
dated nearly ten years earlier. Doc. 32. After Plaintiff shipped the items to Mrs.
Garrison, without an explanatory note or a return address, his mother, Ms. Parcell,
received a call at her unlisted home phone directing her and Plaintiff to stop
contacting Mrs. Garrison. Doc. 26. The call was purportedly made by a local law
enforcement officer, but Plaintiff and his mother believe that the caller was
Defendant Garrison. Id.
Subsequent to receiving the phone call, in August 2013, Plaintiff made a
public records request and determined that Defendant Garrison had used the Driver
and Vehicle Information Database (DAVID) to conduct inquiries regarding

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Plaintiff’s information six times on January 5, 2011, and January 6, 2011. Doc. 26.
According to Plaintiff, Defendant Garrison had no legitimate law enforcement or
official purpose for accessing Plaintiff’s or his mother’s DAVID information in
January 2011. Id. As support, Plaintiff claims that neither of them lived in the
jurisdiction Defendant Garrison worked as a law enforcement officer. Id.
On the contrary, Defendant Garrison alleges that on January 5, 2011, his
wife, Rhonda, contacted him while on duty to advise him that she thought she had
seen a person that looked like her former boyfriend, Plaintiff Barker. Doc. 32.
Then, when she returned home, Mrs. Garrison saw a vehicle that resembled the last
vehicle she knew Plaintiff to drive parked across the yard from their home. Id.
According to Defendant Garrison, his wife was terrified of Plaintiff. Id. Therefore,
she asked him to contact the deputy, who was on duty in the zone in which they
resided, to make a check of the neighborhood. Id.
Defendant Garrison believed that Plaintiff Barker was stalking or otherwise
engaging in threatening behavior toward Mrs. Garrison, so Defendant Garrison
conducted an inquiry of the DAVID system on January 5, 201,1 to ascertain
Plaintiff’s physical description and the type of vehicle he drove. Id. According to
Defendant Garrison, he communicated the information obtained to the deputy on
duty in the zone where the Garrisons lived and asked that he check the area. Id. He
repeated the DAVID inquiry the following morning, January 6, 2011, to confirm

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the information so it could be provided to the zone deputy for the following shift to
check the area as well. Id. Although the checks were completed, the presence of
the Plaintiff was never confirmed. Id.
ANALYSIS
I.

Motion to Strike

In Plaintiff’s Motion to Strike (Doc. 35), Plaintiff requests that I strike
paragraph four of Defendant’s affidavit. A motion to strike “is a drastic remedy to
be resorted to only when required for the purposes of justice.” Augustus v. Bd. of
Public Instruction of Escambia County, Fla., 306 F.2d 862, 868 (5th Cir. 1962). It
is well established that motions to strike are usually denied unless the allegation
has “no possible relation to the controversy and may cause prejudice to one of the
parties.” Falzarano v. Retail Brand Alliance, Inc, No. 07-81069-CIV, 2008 WL
899257 *1 (S.D. Fla. Mar. 31, 2008) (citing Augustus v. Board of Public
Instruction of Escambia County, Fla., 306 F.2d 862, 868 (5th Cir. 1962));
Hutchings v. Federal Ins. Co., 2008 WL 4186994 *2 (M.D. Fla. 2008). In this
case, there is no prejudice by allowing the affidavit in its entirety to remain on the
record. Therefore, the relief requested in Plaintiff’s Motion to Strike (Doc. 35) is
denied.
II.

Counts I and II Against Defendant Garrison

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In Defendant Garrison’s Motion for Summary Judgment (Doc. 32),
Defendant Garrison argues that he is entitled to qualified immunity, that the actions
taken by him were taken in furtherance of a legitimate law enforcement function
and were therefore permissible under the DPPA, and that Plaintiff’s constitutional
claim fails because the Plaintiff has no reasonable expectation of privacy under the
Fourth Amendment in personal information protected by the DPPA.
Plaintiff alleges in Count I of his Second Amended Complaint that
Defendant Garrison violated the DPPA when he accessed Plaintiff s personal
information on the DAVID system on January 5, 2011, and January 6, 2011. The
DPPA was enacted to "limit the release of an individual's personal information
contained in his driver's license record to those who had a legitimate and lawful
need for the information." Kehoe v. Fidelitv Federal Bank & Trust, 421F.3d
1209,1210 (11th Cir. 2005). Accordingly, the DPPA makes it unlawful for any
person "knowingly, to obtain or disclose personal information, from a motor
vehicle record, for any use not permitted under 18 U.S.C. §2721(b)." l8 U.S.C. §
2722(a). The DPPA creates an individual cause of action against an individual who
knowingly obtains, discloses or uses personal information from a motor vehicle
record for a purpose not permitted under 18 U.S.C. §§2721 et.seq. It is undisputed
that Defendant Garrison accessed Plaintiff’s personal information as defined in the
Act. See Doc. 32.

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Defendant Garrison alleges that he accessed the information for a use
permitted under the DPPA. Id. Defendant Garrison contends that that his actions
were permitted by 18 U.S.C. §2721(b)(1), which permits disclosure of personal
information for use by any government agency, including any court or law
enforcement agency in carrying out its functions. 18 U.S.C. §2721(b)(1). He
alleges that he accessed the information to obtain a description of Plaintiff and
Plaintiff’s vehicle to give to the law enforcement officer in the zone. Doc. 32.
Plaintiff, however, alleges that Defendant Garrison did not access the information
for a permitted use.
“It is a hornbook principle that it is not proper for a district court to assess
witness credibility” when considering a motion for summary judgment. AllenSherrod v. Henry Cnty. Sch. Dist., 248 F. App'x 145, 147 (11th Cir. 2007). The
crux of Plaintiff’s opposition to Defendant’s dispositive motion is Defendant’s
versions of the facts are untrue. Doc. 34. Just as I cannot assess whether
Defendant Garrison’s affidavit testimony is credible, I cannot assess whether his
testimony is incredible. Instead, I can only consider all the evidence before me and
determine if there are any factual disputes. Plaintiff has not provided any evidence,
besides a general allegation that Defendant is lying, that Defendant’s version of the
facts are in dispute.

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Within the Eleventh Circuit, the burden of proof lies with the plaintiff to
show that the defendant obtained his personal information "for a purpose not
permitted under the Act." Thomas v. Georqe. Hartz. Lundeen. Fulmer. Johnstone.
King and Stevens. P.A., 525 F.3d 1107, 1112 (11th Cir. 2008). Plaintiff alleges that
Defendant Garrison’s claims that he accessed the information for a permitted use
are implausible, and that Defendant Garrison “simply fails to give any manner of
credible information and/or explanation as to being immersed/involved in a
legitimate law enforcement purpose pertaining to accessing” the DAVID system.
Doc. 34. However, Plaintiff has not presented any evidence that Defendant
Garrison’s claims are unfounded. Nor has Plaintiff provided an alternative
explanation. Therefore, as to Count I, Defendant Garrison is entitled to summary
judgment.
In Count II of his Second Amended Complaint, Plaintiff alleges that by
accessing his personal information in the DAVID system, Defendant Garrison
violated his constitutional right to privacy in addition to his rights protected by the
DPPA. Doc. 26. Plaintiff ‘s claim that his right to privacy under the Fourth
Amendment was violated fails as a matter of law because the Eleventh Circuit has
held that there is no constitutional right to privacy in information protected by the
DPPA. Collier v. Dickinson, 477 F.3d 1305, 1308 (1lth Cir. 2007). Additionally, as
stated above, Plaintiff has presented no evidence to suggest that Defendant

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Garrison violated the DPPA when he accessed Plaintiff’s personal information
while on duty in response to a complaint. Therefore, Plaintiff’s section 1983 claim
fails, and Defendant Garrison is entitled to judgment as a matter of law.
III.

Counts I and III Against Defendant Bay County Sheriff Frank McKeithen

“Supervisory liability under § 1983 occurs either when the supervisor
personally participates in the alleged unconstitutional conduct or when there is a
causal connection between the actions of a supervising official and the alleged
constitutional deprivation.” Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir.
2003). Accordingly, if there is no constitutional violation committed by the
subordinates, there is no liability for the supervisor.
As analyzed above, there was no Fourth Amendment violation committed by
Defendant Garrison, and there was no DPPA violation committed by Defendant
Garrison. Without some underlying violation, there is nothing for which Sheriff
McKeithen to be liable as supervisor. Accordingly, Defendant McKeithen is
entitled to judgment as a matter of law.
CONCLUSION
Therefore, the relief requested in Defendant Garrison’s Motion for Summary
Final Judgment (Doc. 32), and Defendant Bay County Sheriff Frank McKeithen’s
Motion for Summary Judgment (Doc. 33) is GRANTED. Additionally, the relief
requested in Plaintiff’s Motion to Strike Paragraph Four (4) of Defendant’s

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Affidavit in Support of the Defendant’s Motion for Summary Judgment (Doc. 35)
is DENIED.
ORDERED on January 22, 2015.
/s/ Richard Smoak
RICHARD SMOAK
UNITED STATES DISTRICT JUDGE

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