Ponder v. Freeman et al
Filing
63
ORDER AND OPINION denying without prejudice plaintiff's 38 Motion for Partial Summary Judgment; granting defendants Levo and Redden's 39 Motion for Summary Judgment and denying defendants Weaver and Border's 39 Motion for Summary Judgment. Signed by Judge Julie E. Carnes on 3/29/13. (ekb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
David Ponder,
Plaintiff,
CIVIL ACTION NO.
v.
1:09-cv-03423-JEC
Myron Freeman, Ronald Applin,
Deputy Redden, Robert Price,
Steve Borders, Marilyn Levo,
Iyanhous Weaver,
Defendants.
ORDER & OPINION
This case is before the Court on defendants’ Motion for Summary
Judgment [39] and plaintiff’s Motion for Partial Summary Judgment
[38].
The Court has reviewed the record and the arguments of the
parties and, for the reasons that follow, concludes that defendants’
Motion for Summary Judgment [39] should be GRANTED in part and DENIED
in part and plaintiff’s Motion for Partial Summary Judgment [38]
should be DENIED.
AO 72A
(Rev.8/82)
BACKGROUND
I.
SUMMARY OF FACTS AND CONTENTIONS
This is a § 1983 action arising from the execution of an arrest
warrant at plaintiff’s home. The abbreviated version of the facts is
as follows.
On November 27, 2007, Fulton County Sheriff’s officers
attempted to execute an arrest warrant for a Demone Heyward at an
address in Atlanta: 2147 Beecher Road.
This address is a home that,
from the street, appears to be a single-family residence. It has one
mailbox and one front door.
In fact, however, on the interior the
house has been subdivided into three units: a Unit A (upstairs), a
Unit A (downstairs/basement), and a Unit B.
As it turns out, there
are multiple doors into the home, on the side and back of the house.
At the time of the execution of the warrant, at least one tenant
was living in each of these three units.
The officer who was
executing the arrest warrant, Sergeant1 Iyanhous Weaver, was not aware
that the home had been sub-divided, at least when he first began his
efforts to execute the arrest warrant.
The subject of the arrest warrant, Heyward, was the tenant in
Unit B, and he was eventually found hiding in the basement of Unit B
1
In the record that the Court has reviewed, Mr. Weaver has been
referred to as a sergeant and a deputy. The Court will attribute the
higher rank to him throughout this Order.
Whatever it may be,
Weaver’s rank has not been dispositive as to any conclusions that the
undersigned has made.
2
AO 72A
(Rev.8/82)
in a dryer by other officers who had arrived on the scene.
officers arrested Heyward.
These
Before that happened, however, Sergeant
Weaver had entered the upstairs Unit A area where the plaintiff,
David Ponder, lived.
Although there are few details in the record
about the search, itself, of upper Unit A, one can reasonably assume
that Weaver, and perhaps other officers, searched this unit for their
suspect, as that was their purpose in entering the unit.
Indeed,
defendants do not deny that a search occurred for Heyward in the
upstairs part of Unit A.
Plaintiff Ponder also offered few specifics about the search of
his unit, albeit he was perhaps not in the best vantage point to see
everything that transpired that evening, as very shortly after
Sergeant Weaver approached him, plaintiff was handcuffed by the
deputy and made to stay in a sunroom in the back of his part of the
house.
Plaintiff remained that way for the 45 minutes to an hour
before the officers arrested him and left the scene.
Plaintiff has sued, based on what he claims is “the illegal
search and seizure of [his] person and home,” in violation of the
Fourth Amendment and the Fourteenth Amendment.
(Compl. [2] at ¶ 1.)
He has sued five Fulton County Sheriff’s officers (Weaver, Redden,
Price, Borders, and Levo) for the search and seizure at his unit.
He
has sued two retired supervisory officers–-former Sheriff Myron
Freeman and former Captain Ronald Applin–-for what plaintiff claims
3
AO 72A
(Rev.8/82)
were inadequate procedures to safeguard against officers searching
the wrong unit in a multi-unit property.
As to the above five officers, defendants argue that there is no
evidence that these four officers2 ever entered plaintiff’s unit.
As
to the fifth officer, Sergeant Weaver, it is clear that he entered
the
unit,
but
this
defendant
contends
that
he
is
entitled
to
qualified immunity as he had the consent of the tenant in the
basement section of Unit A to enter the unit.
Albeit the handcuffing of plaintiff for almost an hour would
seem to be the most dramatic event of the evening and albeit a
consent to search by a co-tenant would presumably not authorize
officers to handcuff a non-consenting tenant, plaintiff has not
discussed the significance of this handcuffing in terms of his
claims, as the briefing of both sides focuses only on the entry and
search aspect of the claim.
Nevertheless, as plaintiff does assert
in his complaint an unlawful seizure of his person, the handcuffing
would
appear
to
be
the
means
by
which
the
officer
effected
plaintiff’s seizure.
As the above discussion hints, the facts in this case are fairly
clear as to the broad points–-plaintiff’s unit was entered without
2
Defendants acknowledge that Deputy Levo briefly entered the
unit to inform Weaver that other officers had found the suspect
Demone Heyward.
4
AO 72A
(Rev.8/82)
his consent and searched, and he was handcuffed for a period of time
in that unit–-but very murky as to the details of which part of the
house a particular officer entered, and in what sequence.
The
confusion arises, in part, because officers--and even plaintiff, on
occasion--note memory lapses as a result of the long delay between
the search and seizure, which occurred in November 2007, and the
depositions of the officers in October 2010.3
Much of the confusion
arises, however, because the officer deponents were not shown a
diagram of the house at 2147 Beecher by plaintiff’s counsel, meaning
that it is very hard for the reader–-and it seemed hard for the
participants in the deposition--to follow the description of the
deponent as to what unit of the house was being described at various
points in the testimony.
Thus, there will be references frequently
to “upstairs,” with neither counsel nor the deponent seeming to
understand which upstairs the other was referring to; the same with
“downstairs;”
where
the
various
doors
are
located;
and
utter
confusion, at least by this reader, as to what part of the house the
deponents are referring when they speak of going uphill or downhill
to a particular door or unit.
Given these challenges, the Court endeavors to set out, more
particularly, the facts.
3
Plaintiff brought suit on the eve of the expiration of the
statute of limitations, in November 2009.
5
AO 72A
(Rev.8/82)
II.
FACTS
During the relevant time period, plaintiff Ponder, suspect
Demone Heyward, and another man lived at 2147 Beecher Road in
Atlanta, Georgia (“the residence” or “2147 Beecher”). (Compl. [2] at
¶ 5.)
This residence was subdivided into three separate sections.
(Id.)
Plaintiff occupied Unit A, an area located on the upper level
of one side of the residence.
(Defs.’ Br. in Support of Mot. Summ.
J. (“Defs. Br.”) [39] at 3.) An “older” gentleman occupied the lower
level of Unit A.
(Id.)
Heyward occupied Unit B, an area on the
other side of the residence that was separated from Unit A by an
interior and impassable brick wall.
A.
(Id. at 3-4.)
Plaintiff Ponder’s Version Of Events
Prior to the events at issue in this case, in early November of
2007, two unidentified officers of the Fulton County Sheriff’s Office
attempted to execute an arrest warrant for parole violator Heyward at
the residence at 2147 Beecher.
(Defs.’Statement of Material Facts
(“DSMF”) [39] at ¶ 13 and Arrest Warrant, attached to Pl.’s Partial
Mot. for Summ. J. (“PMSJ”) [38] at 8-9.)
The officers apparently
went to the front door of the residence, which is an entry way for
the upstairs Unit A, as they were greeted by plaintiff, who allowed
them to search his home.
(DSMF [39] at ¶ 13.)
officers that there was a tenant next door.
He also advised the
(Id.)
It is not clear
whether the officers looked for Heyward next door after they left
6
AO 72A
(Rev.8/82)
plaintiff’s unit. At any rate, they were apparently unable to find
Heyward at that time, as the warrant remained outstanding.
About three weeks later, between the late evening of November
27th and early morning of November 28th, officers of the Fulton
County Sheriff’s Office again attempted to execute this arrest
warrant for Heyward at 2147 Beecher, which was the address listed for
Heyward on the warrant.
Ex. 4.)
(Borders Report, attached to PMSJ [38] at
There is no allegation that any of the officers involved in
this effort were aware of, or had been a part of, the earlier attempt
to arrest Heyward during the first visit to plaintiff’s residence.
(See Pl.’s Statement of Undisputed Material Facts, attached to PMSJ
[38] at 3-4.)
It was the task of defendant Weaver, who had the arrest warrant
and a photograph of Heyward, to make the arrest. Accordingly, he was
one of the first officers (and likely was the first officer) to
approach the house.
(DSMF [39] at ¶¶ 33, 43.)
The first deputy to
encounter plaintiff--whom again the Court infers to be Weaver, albeit
it could have been his partner--knocked on the front door and asked
if he could speak with “such and such,” (presumably, Heyward).
(Ponder Dep. [43] at 38.)
Plaintiff could not open his front door
because the knob was jammed, so he responded through the open blinds,
telling the officer that he had “the wrong place.”
7
AO 72A
(Rev.8/82)
(Id.)
Immediately thereafter, plaintiff heard this deputy call for
backup.
(Id. at 42.)
Plaintiff then put on some clothes, after
which he went toward the back of his house to call his brother, who
owned the residence. (Id. at 38.) At some point shortly thereafter,
plaintiff went to the back door, he says, to explain to the deputy
why, given the jammed door knob, he couldn’t let him in before.
(Id.
at 39-46.)
When he got to the back door and opened it, a second deputy,
described as a “Spanish guy,” was standing there.
Weaver’s partner was Deputy Bosco.
(Id. at 44.)
(Weaver Dep. [48] at 10.)
The
deputy asked why plaintiff hadn’t opened the front door, before; this
deputy had a taser gun drawn.
(Id. at 38.)
Plaintiff told them that
they had been there before, that they had the wrong place, and that
they should go away.
(Id. and PMSJ [38] at 7.)
Even though
plaintiff told the two deputies not to come in, one of them “barged
in.”
Plaintiff reiterated that he was not giving the deputies
permission to enter, but enter they
pretty much took over the house.”
did, and “[the two deputies]
(Id.)
At some point in all of
this, plaintiff heard other police cars arriving.
Once
the
two
deputies
had
entered
(Id. at 40.)
plaintiff’s
unit,
they
handcuffed him and had him sit in his sunroom, which is toward the
back of the house.
the
wrong
person
(Id. at 47.)
and
wrong
Plaintiff kept saying that they had
place,
8
AO 72A
(Rev.8/82)
but
they
“weren’t
paying
attention.” (Id. at 49.) The Spanish deputy told plaintiff to “hold
tight,” and that when they had finished, they would let plaintiff go.
(Id. at 50.)
Someone, presumably the two deputies, then searched
Unit A, albeit plaintiff later says that 12 deputies came through his
unit at some undescribed point during the evening.
(PMSJ [38] at
55.)
Plaintiff indicates that as the deputies were leaving, the
supervisor (“the boss, the chief, or the colonel”), later identified
as defendant Lieutenant Borders, said to do a background check on the
plaintiff, even though the latter notes that, by then, the officers
would have known that they had the wrong man.
One of the officers
ran a check to see if plaintiff had any outstanding warrant and,
apparently determining that he did not, an officer released the
handcuffs on plaintiff and left.
B.
Other Officers’ Accounts
1.
It
(Id. at 55-58.)
is
Sergeant Weaver
difficult
to
arrive
at
a
consistent
placement of Sergeant Weaver based on his deposition.
chronology
or
He indicates
at one point in his deposition that he was not the officer who
knocked on Ponder’s door and who was refused entry.
[48] at 7.)
(Weaver Dep.
But that testimony does not make sense, inasmuch as he
and his partner, Deputy Bosco, were the first on the scene, and it
was only when he learned from his partner that plaintiff or someone
9
AO 72A
(Rev.8/82)
was trying to escape or avoid letting him in that he called for backup.4
Weaver admits that, at the time Heyward was arrested, Weaver
was sitting in the kitchen with a subject who had been handcuffed and
that he stayed with this subject until he learned that Heyward had
been arrested; either he or his partner, Deputy Bosco, handcuffed
this person.
(Id. at 12-14.)
This individual was handcuffed behind
his back because he became a suspect when he came out the back side
of the house.
(Id. at 24.)
This description would have to be of
plaintiff.
2.
Lieutenant Steve Border
Lt. Borders was the evening shift watch commander, who went to
2147 Beecher when he got a call that assistance was needed. (Borders
Mem. to File [38-1] at 4.)
According to his memorandum, Borders
first encountered a group of officers who were standing outside one
doorway, with a black male who said, “Ya’ll can search all you want.
Ain’t nobody here but me.”
(Id. at 5.)
Presumably, this was the
“older” gentleman who lived in the lower part of Unit A, below the
plaintiff.
4
Weaver also seems to confuse plaintiff with the three black
males in Heyward’s unit, as he says it was the three black males who
would not open the door and who were talking through the blinds.
(Id. at 8-9 (he could see three black males through front door.))
Yet, it is plaintiff who lives in the unit with a front door.
10
AO 72A
(Rev.8/82)
Then, Borders proceeded to another door at the end of the
residence. This was the unit in which three black males were sitting
and in which Heyward was ultimately found hiding in a dryer. Borders
indicates that he entered this unit along with Deputies Levo, Cherry,
and Weaver.
(Id.)
Ultimately, through some very perceptive police
work, Borders found Heyward hiding in the dryer.
(Id. at 5-6.)
In his deposition testimony, Borders indicates that he thought
that plaintiff had consented to a search.
He agreed that he could
not say that plaintiff had consented to be handcuffed. (Borders Dep.
[46] at 6.)5
He further repeats that he encountered a black male who
said they could search–-this was presumably the “older” gentleman in
the lower part of Unit A–-and that some deputies did search but,
within a minute or two, were satisfied that the individual they were
seeking was not in this area of the house.
(Id. at 16.)
It is not
clear from this testimony whether Borders meant that the deputies
searched both the lower and upper levels of Unit A, or just the
lower.
Finally, Borders does not believe he was the person who
5
In his deposition, Borders also answers “yes” to a leading
question concerning whether he participated in a search of
plaintiff’s unit.
(Id. at 6.)
This does not seem accurate as
Border’s report does not reflect this fact and Borders was pretty
busy pulling Heyward out of the dryer. Later, Borders corrects this
testimony and indicates that he had not searched plaintiff’s
apartment, but had searched only Heyward’s unit. (Id. at 20.)
11
AO 72A
(Rev.8/82)
directed Weaver to do a background check on plaintiff before unhandcuffing him.
3.
(Id. at 43.)
Deputy Marilyn Levo
Deputy Levo arrived at the premises along with Deputy Cherry,
after they had heard the call for assistance.
(Id. at 6.)
three different doors along the back of the house.
door in which the three black males were sitting.
She saw
She entered the
(Id. at 7-8.)
One
of the other deputies was showing the males the photograph of Heyward
that Weaver would have originally possessed.
(Id. at 9.)
Levo
assisted Borders in the basement search of Unit B that led to the
discovery of Heyward.
(Id. at 10.)
The only time she saw Sergeant
Weaver was when she went to get him (presumably from upper Unit A)
after Heyward had been found in the dryer.
4.
(Borders Dep. [46] at 7.)
Deputy James Redden
Deputy Redden likewise responded to the call for assistance. He
stayed upstairs in what would presumably have been Unit B, while
Borders and Levo searched for Heyward in the basement.
11.)
(Id. at 10-
Deputy Redden further testified that typically whomever was
holding the warrant would have had to explain to the ranking officer,
Lt. Borders, what was going on, once Borders arrived on the scene.
(Id. at 7, 13.)
5.
Deputy Robert Price
Deputy Price filed no answer and was not deposed.
12
AO 72A
(Rev.8/82)
DISCUSSION
I.
SUMMARY JUDGMENT STANDARD
The court must grant summary judgment if 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).
The
party seeking summary judgment bears the initial burden to show the
district court, by reference to materials in the record, that there
are no genuine issues of material fact that should be decided at
trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If this
initial burden is not satisfied, the motion must be denied and the
court
need
not
consider
any
showing
made
by
the
nonmovant.
Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993).
If the movant satisfies this initial responsibility, the nonmoving
party then bears the burden to show the existence of a genuine issue
of material fact.
Clark v. Coats & Clark, Inc., 929 F.2d 604, 608
(11th Cir. 1991).
Where the movant bears the burden of proof on an issue, the
movant “must show that, on all the essential elements of its case on
which it bears the burden of proof at trial, no reasonable jury could
find for the non-moving party.”
Fitzpatrick, 2 F.3d at 1115.
Where
the nonmovant bears the burden of proof, the moving party need only
show the absence of evidence to support the nonmovant’s case, or
affirmative evidence demonstrating that the nonmovant will be unable
13
AO 72A
(Rev.8/82)
to prove their case at trial.
Id. at 1115-1116.
The court must view
all evidence and draw all reasonable inferences in favor of the
nonmoving party.
Johnson v. Governor of Fla., 405 F.3d 1214, 1217
(11th Cir. 2005).
There
is
no
“genuine”
issue
for
trial
“unless
there
is
sufficient evidence favoring the nonmoving party for a jury to return
a verdict for that party.”
242, 249 (1986).
Anderson v. Liberty Lobby, Inc., 477 U.S.
The substantive law will determine which facts are
material, and “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude
the entry of summary judgment.”
II.
Id. at 248.
OFFICIAL CAPACITY CLAIMS
Defendants move for summary judgment on any claims against them
in their official capacity on the ground of sovereign immunity.
(Defs.’ Br. [39] at 8.)
It is unclear from the complaint whether
plaintiff intended to sue defendants in their official capacity.
As
plaintiff unequivocally states in his response that he is not seeking
any liability against defendants in their official capacity
Resp. [53] at 1), this is now a moot point.
(Pl.’s
See Young Apartments,
Inc. v. Town of Jupiter, 529 F.3d 1027, 1047 (11th Cir. 2008)(“When
it is not clear in which capacity the defendants are sued, the course
of proceedings typically indicates the nature of the liability sought
to be imposed.”).
As plaintiff has affirmatively disavowed any
14
AO 72A
(Rev.8/82)
official capacity claims, defendants’ motion for summary judgment on
these claims is GRANTED.
III. CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS WHO PARTICIPATED IN
SEARCH OF 2147 BEECHER ROAD
A.
Defendant Weaver
Only defendant Weaver raises the defense of qualified immunity.6
That is, Weaver does not deny that he was involved in the search of
plaintiff’s upper Unit A nor has he denied that he was responsible
for handcuffing the plaintiff.
Similarly, he acknowledges that he
was the officer who released plaintiff, after it had been determined
that Heyward had been caught and after he then ran a check on
plaintiff to make sure there no active warrants. He argues, however,
that he should receive qualified immunity for any liability that
might otherwise attach to this conduct.
Qualified immunity confers complete protection upon government
officials sued in their personal capacities unless their conduct
“‘violate[s] clearly established statutory or constitutional rights
of which a reasonable person would have known.’”
Vinyard v. Wilson,
311 F.3d 1340, 1346 (11th Cir. 2002)(quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)).
To receive qualified immunity, the
official must first demonstrate that he was acting within the scope
6
As noted infra, defendant Levo mentions qualified immunity in
passing as to the claim against her.
15
AO 72A
(Rev.8/82)
of
his
discretionary
occurred.
Id.
authority
when
the
alleged
wrongful
acts
The burden then shifts to plaintiff to show that
defendant’s conduct violated clearly established law.
Id.
A
plaintiff meets this burden by establishing the violation of a
constitutional right, and by showing that the right was so clearly
established at the time of the alleged violation that a reasonable
public official in a similar situation would be aware that his
conduct
was
unconstitutional.
Id.
The
law
can
be
clearly
established by decisions of the United States Supreme Court, the
Eleventh Circuit, or the highest court of the state where the case
arose.
Youmans v. Gagnon, 626 F.3d 557, 565 (11th Cir. 2010).
Defendant Weaver does not dispute that he was acting in his
discretionary authority in executing the arrest warrant. (Def.’s Br.
[39] at 17.)
it
was
He further concedes that at the time of the incident,
clearly
established
that,
“absent
consent
or
exigent
circumstances, a law enforcement officer could not legally search for
the subject of an arrest warrant in the home of a third party without
first obtaining a search warrant.”
Lepone-Dempsey v. Carroll Cnty.
Comm’rs, 159 Fed. App’x 916, 919 n.6 (11th Cir. 2005).
See also
O’Rourke v. Hayes, 378 F.3d 1201, 1208-1209 (11th Cir. 2004).
Nevertheless, defendant Weaver argues that his actions did not
violate plaintiff’s constitutional rights.
16
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(Rev.8/82)
1.
The
seizures.
Unreasonable Search And Seizure
Fourth
Amendment
prohibits
U.S. CONST. amend. IV.
unreasonable
searches
and
The invasion of a home without a
search warrant is presumptively unreasonable.
Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000).
United States v.
Furthermore, law
enforcement is prohibited from using an arrest warrant as lawful
authority to enter the home of a third party to conduct a search, in
the absence of exigent circumstances, consent, or a search warrant
for the third-party’s home. Steagald v. United States, 451 U.S. 204,
205-206, 214 (1981).
Nonetheless, the Supreme Court held in Payton
v. New York, 445 U.S. 573, 603 (1980) that “for Fourth Amendment
purposes, an arrest warrant founded on probable cause implicitly
carries with it the limited authority to enter a dwelling in which
the suspect lives when there is reason to believe the suspect is
within.”
Bervaldi, 226 F.3d at 1263.
Although Steagald prohibits the warrantless entry of a thirdparty’s residence to execute an arrest warrant, Payton allows such
warrantless entry based upon an officer’s reasonable belief that the
suspect currently resides therein.
Id. at 1267 n.11 (declining to
apply Steagald because “the officers had a reasonable belief that the
. . . residence was [the suspect’s] residence, not some third party’s
residence as in Steagald, and that he was there at the time”).
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The
Tenth Circuit aptly described the dichotomy between Steagald and
Payton as follows:
Whether Steagald (third-party's home) or Payton (suspect’s
home) applies is resolved under the first prong of the
Payton test.
If the officers reasonably believe the
suspect lives at the residence, then Payton applies. The
officers may enter on the authority of the arrest warrant,
provided they reasonably believe the suspect is inside.
They do not need a search warrant. If, however, the
officers’ belief that the suspect lives at the residence is
not reasonable, then this implies the residence is a
third-party residence. In that case, Steagald applies,
i.e., the officers’ arrest warrant is insufficient — they
need a search warrant to enter.
United States v. Thompson, 402 Fed. App’x 378, 382 (10th Cir.
2010)(internal citation omitted).
Payton
requires
a
two-part
inquiry
to
determine
if
entry
pursuant to an arrest warrant complies with the Fourth Amendment.
Berivaldi, 226 F.3d at 1263.
First, “there must be a reasonable
belief that the location to be searched is the suspect’s dwelling.”
Id.
Assuming that requirement is met, the police must also have
“‘reason to believe’ that the suspect is within the dwelling” at the
time of entry.
Id. (quoting United States v. Magluta, 44 F.3d 1530,
1533 (11th Cir. 1995)). Under Payton, the Court must consider all of
the
facts
and
circumstances
within
the
knowledge
of
enforcement agents at the time of the warrant’s execution.
the
Id.
law
In
conducting the Payton analysis, courts must remain sensitive to
18
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common sense factors concerning the suspect’s residence and presence.
Bervaldi, 226 F.3d at 1263.
2.
Clearly,
Consent
defendant
Weaver
violated
Steagald’s
proscription
against searching for a suspect in the home of a third-party without
a search warrant for those premises.
As noted, two exceptions to
this general rule apply: exigent circumstances and consent.
Weaver
has not argued that exigent circumstances apply, but he does argue
that he had consent to search plaintiff’s premises.
A consensual search does not violate the Constitution, even in
the absence of a warrant or probable cause.
890 F.2d 355, 360 (11th Cir. 1989).
United States v. Garcia,
Consent may be given by the
individual whose property is searched, or by “a third party who
possesses
common
authority
over
the
Rodriguez, 497 U.S. 177, 181 (1990).
premises.”
Illinois
v.
Common authority is based on
“mutual use of the property by persons generally having joint access
or control for most purposes.”
Id.
Whether consent to enter was
given must “be judged against an objective standard: would the facts
available to the officer at the moment . . . ‘warrant a man of
reasonable caution in the belief’ that the consenting party had
authority over the premises?”
Id. at 188 (citing Terry v. Ohio, 392
U.S. 1, 21-22 (1968)).
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In support of his argument that he had consent to search upper
Unit A,7
Weaver notes that the occupant who lived in the lower level
of Unit A permitted officers to enter this area and to search.8
(Ponder Dep. [43] at 51-52 and Borders Dep. [46] at 16.)
Weaver
argues that, as the upper and lower levels of Unit A were accessible
to one another through an interior stairs, a reasonable officer would
have believed that the downstairs occupant had authority over the
entire premises and that such a person had the power to consent to a
search of the upper area, as well.
Were these the only facts in evidence, Weaver’s argument would
be persuasive, at least as to the entry of the upper part of Unit A.
Yet, as noted supra, Weaver (or another deputy with Weaver) rang the
front door bell of Unit A and was turned away by plaintiff.
Then,
according to plaintiff’s testimony, when Weaver and his partner
confronted plaintiff at the back door, he told them to leave and not
7
Plaintiff points out that defendant Weaver explicitly denies
entering plaintiff’s unit on the basis of consent. (Weaver Dep. [48]
at 21.) The Court reads that testimony as a denial that plaintiff
had given consent, not a denial that the older male in the lower Unit
A had consented. Nevertheless, the proper inquiry is an objective
one, and defendant Weaver’s subjective reasons for entering are
irrelevant for the present analysis.
8
This consenting individual would have been the older, black
male who said, “Ya’ll can search all you want. Ain’t nobody here but
me.” (Borders Mem. to File [38-1 at 5].)
20
AO 72A
(Rev.8/82)
enter his area, but the officers ignored his request and entered the
upper part of the unit, after which a search for Heyward occurred.
A “physically present inhabitant’s express refusal of consent to
a police search is dispositive as to him, regardless of the consent
of a fellow occupant.”
Georgia v. Randolph, 547 U.S. 103, 122-23
(2006)(holding that a tenant cannot consent to admit the police over
a co-tenant’s express objection). Thus, even though his supposed cotenant had granted consent, the deputies were obliged to immediately
terminate the search upon plaintiff’s insistence that they do so; the
deputies ignored plaintiff’s request, and did not terminate the entry
and search.
Thus, even assuming that defendant Weaver reasonably
believed that plaintiff and the downstairs occupant were co-tenants,
rather than distinct lessees, Weaver’s reliance on the downstairs
tenant’s consent was unreasonable, given plaintiff’s objection.
Furthermore, the law deeming this conduct to be unlawful was clearly
established at the time the incident occurred.
In addition, although neither plaintiff nor defendant Weaver
have addressed the significance of the handcuffing of plaintiff by
Weaver and his partner, that event must be acknowledged as plaintiff
claims not only an unlawful search of his property, but also an
unlawful seizure of his person.9
9
failure
Even if Weaver had consent to enter
This omission by defendant Weaver could be construed as a
by him to seek qualified immunity for the seizure of
21
AO 72A
(Rev.8/82)
and search the upper part of Unit A, this did not automatically mean
that Weaver had either reasonable suspicion or probable cause to
handcuff the plaintiff and seize his person for the 45 minute-one
hour period of time during which officers were searching for Heyward.
Certainly, there can be circumstances during the execution of a
search when an occupant of the property may need to be detained or
subdued for the protection of the searching officers and others.
Defendant Weaver has not identified what justification he had for
doing so here, however.
For all the above reasons, Weaver violated the proscription of
Steagald against the search for a suspect at the premises of a thirdparty, and none of the exceptions recognized by Steagald apply here.
3.
Reasonable Belief That Heyward Was In Unit A
Although defendant Weaver violated the law clearly established
by Steagald, his conduct may still be excused if he satisfied the
dictates of Payton.
As noted above, Payton allows an officer, armed
with an arrest warrant for a suspect, to make a warrantless entry of
a residence for which the officer does not have a search warrant, if
the officer has a reasonable belief that the suspect currently
resides in that residence.
plaintiff’s person.
If that is so, no matter the merits of the
Court’s analysis of the search question, the seizure claim remains
uncontested by any summary judgment motion by defendant Weaver.
22
AO 72A
(Rev.8/82)
Defendant Weaver argues that he had a reasonable belief that
Heyward lived at 2147 Beecher.
That assertion is correct.
He also
argues that he had a reasonable belief that the residence was not a
multi-occupant residency, and therefore he could not be expected to
know, when he entered plaintiff’s unit over the latter’s objection,
that, in fact, multiple renters lived at the property.
The undisputed evidence indicates that, at least at the time
Weaver first approached the residence from the street, he was not on
reasonable
notice
that
the
residence
had
multiple
units.
Specifically, the house had one mailbox and one front door. Further,
it was dark and the home was not illuminated.
Unfortunately for Weaver, the totality of the facts, when taken
in the light most favorable to plaintiff, permit an inference that
prior to searching plaintiff’s unit, Weaver should have been on
notice that there were multiple residences within the single home.
First, although the chronology is very confusing, there is evidence
to support an inference that Weaver had seen enough, prior to
entering plaintiff’s unit, to put him on notice that this was a
multi-residence home.
In his own testimony, Weaver suggests that,
prior to entering plaintiff’s unit, he had looked through a glass
window and seen the unit in which the three black males were seated.
(Weaver Dep. [48] at 7-11.)
(See also id. at 22 (once Weaver saw
23
AO 72A
(Rev.8/82)
Ponder, he never again saw the three black males), which suggests
that Weaver saw these males in their separate unit first.)
The main entry to plaintiff’s unit was the front door to the
residence.
There was clearly a separate entry to the unit in which
the three black males were seated, and this entry was either on the
side or the back of the house.
Further, while the observations and inferences of other officers
are not dispositive, as Weaver may not have made the same route
around the house as did these officers, it is worth noting that other
officers on the scene had, at some point that evening, deduced that
this was a multi-occupant dwelling.
(See Levo Dep. [49] at 11-14
(when she walked around the house in a route that plaintiff contends
Weaver would have taken, she saw two different doors in back and
realized that there were two different units); File Mem. of Lt.
Borders [38-1] at 4-5 (Borders entered the doorway of the person who
was presumably the older man who consented to a search; a couple of
minutes later, the deputies were satisfied that Heyward was not in
this area of the house; then Borders proceeded to another doorway at
the top of the walkway where the three black males were located;
Borders, Levo, Cherry and Sgt. Weaver entered this portion of the
residence together.)
As to the law governing this type of situation, an officer is
not liable where he mistakenly thinks there was only one apartment in
24
AO 72A
(Rev.8/82)
a particular building, but it turns out there was more than one and
that the officer had searched that wrong apartment.
Garrison, 480 U.S. 79, 88-89 (1987).
Maryland v.
Here, confusing though it may
be, the evidence, taken in the light most favorable to plaintiff,
permits an inference that defendant Weaver would have observed the
separate entrances to the residence, would have seen three males in
one of those separate units, and therefore would have known that the
residence consisted of separate units, creating the possibility that
he was about to search a unit in which the suspect did not reside,
which is what, in fact, Weaver did as to plaintiff Ponder.
Accordingly, Weaver is unable to rely on the exemptions provided
by Payton: that there is “a reasonable belief that the location to be
searched is the suspect’s dwelling” and that there is also
“‘reason
to believe’ that the suspect is within the dwelling” at the time of
entry.
United States v. Magluta, 44 F.3d 1530, 1533 (11th Cir.
1995).
Because defendant Weaver did not have a reasonable belief that
Unit A was the suspect’s dwelling, he fails to meet the first prong
of the
Payton
standard.
Thus,
Steagald
applies and defendant
violated clearly established law by entering the residence without a
warrant, exigent circumstances, or consent.
See O’Rourke, 378 F.3d
at 1210 (denying qualified immunity under Steagald).
25
AO 72A
(Rev.8/82)
For the above reasons, the Court DENIES defendant Weaver’s
Motion for Summary Judgment [39].
Given the muddled facts here, the
Court also DENIES, for the present time, a broad grant of summary
judgment for plaintiff as to this defendant.
trial,
the
Court
and
parties
will
confer
Should there be a
to
determine
which
components of this claim can be deemed to have been proven as a
matter of law by the plaintiff and which have not.
Accordingly,
plaintiff’s Motion for Summary Judgment [38] is DENIED as to this
defendant.
B.
Defendant Borders
Defendant Borders argues that the undisputed facts compel an
inference that he never entered plaintiff’s home, and thus never
“searched” his home or “seized” his person in violation of the Fourth
Amendment.
(Defs.’ Br. [39] at 13-15.)
It is true that plaintiff
was unable to identify all of the officers and individuals who
entered his home on the evening in question.
Nevertheless, taking
the evidence in the light most favorable to the plaintiff, the Court
concludes that there is evidence that Borders was involved in
activity that a jury could conclude to have violated plaintiff’s
Fourth Amendment rights.
Albeit defendant Borders affirmatively states that he never
searched any other place than where Heyward was found, which was Unit
B.
(Borders Dep. [46] at 21), he does admit that he entered the
26
AO 72A
(Rev.8/82)
apartment where plaintiff lives, the upper level of Unit A.
20.)
(Id. at
Further, plaintiff has testified that the “chief,” whom the
evidence indicates would have been Lt. Borders, entered his premises
toward the end of the encounter and directed Weaver, before letting
plaintiff go, to do a “background” check on plaintiff to ensure that
he had not active warrants. To do this, Weaver went into plaintiff’s
pocket and got out his driver’s license.
(Weaver Dep. [48] at 55-
57.)
This directive came at a time when Lt. Borders knew, for a
certainty, that plaintiff was not the suspect and knew that, by being
present in plaintiff’s unit, the officers were in a place where the
suspect did not reside. Indeed, by this time, Lt. Borders would have
been certain that the residence was a multi-occupant unit, as he had
seen the various units during the course of the effort to find
Heyward.
Further, testimony indicates that, as the ranking officer,
Borders would have spoken to the officer holding the warrant, Weaver,
immediately upon arriving on the scene.
Accordingly, defendants Borders’ Motion for Summary Judgment
[39] is DENIED.10
Yet, as Borders disputes some of plaintiff’s
factual allegations, a jury must decide the matter of Borders’
10
It should be noted that defendant Borders has not sought
qualified immunity, but instead has sought summary judgment only on
the ground that he never entered plaintiff’s unit nor searched
plaintiff.
27
AO 72A
(Rev.8/82)
conduct and liability.
Accordingly, plaintiff’s Motion for Summary
Judgment [38] is DENIED as to this defendant.
C.
Defendants Redden And Levo
Defendants Redden and Levo argue that the undisputed facts
compel an inference that defendants never entered plaintiff’s home,
and
thus
never
“searched”
his
home
violation of the Fourth Amendment.
or
“seized”
his
person
in
(Defs.’ Br. [39] at 13-15.)
Plaintiff was unable to identify all of the officers and individuals
who entered his home, although he estimates that a dozen or so
entered his residence at some point in the evening.
(Ponder Dep.
[43] at 48-49.)
As to Redden, the Court has culled the record and can find
nothing in that record that reasonably suggests that Redden ever
entered or searched the upper Unit A, occupied by plaintiff.
As to
defendant Levo, she concedes that she entered plaintiff’s unit
momentarily after Heyward had been apprehended, and then only to
advise Weaver that the other officers had caught Heyward and that
Weaver could exit the scene.
(Defs.’ Br. [39] at 15.; Borders Dep.
[46] at 25.)
Nonetheless, the Court concludes that Levo should not be held
liable for violating plaintiff’s constitutional rights based on this
isolated entry.
As a practical matter, plaintiff had already been
handcuffed for 45 minutes and his unit had already been searched by
28
AO 72A
(Rev.8/82)
the time Levo arrived.
If anything, Levo helped to mitigate the
situation by informing Weaver that the suspect had been apprehended
and he could leave.
This disclosure meant that plaintiff was then
able to be freed from his handcuffs, which was a good development for
him.
Moreover, the actions of both Redden and Levo were taken at the
behest of their superior officer, Lt. Borders, that evening and the
entire chain of events was initiated by Sgt. Weaver.
See Shepard v.
Hallandale Beach Police Dep’t, 398 Fed. App’x 480, 483-84 (11th Cir.
2010)(assisting officers in illegal search are entitled to qualified
immunity when they followed the lead of a primary officer, as they
did not act unreasonably nor should they have known that they were
violating anyone’s Fourth Amendment rights; this is so even thought
the primary officer was denied qualified immunity); Hartsfield v.
Lemacks, 50 F.3d 950, 956 (11th Cir. 1995)(although officer who
initiated an unreasonable, albeit mistaken, search of a premises was
held liable for this illegal search of the wrong premises, those
officers who accompanied the initiating officers and following his
lead did not act unreasonably nor should they have known that their
conduct might result in a violation of the plaintiffs’ Fourth
Amendment rights); Brent v. Ashley, 247 F.3d 1294, 1306 (11th Cir.
2001)(customs inspectors who participated in a search that was later
ruled unconstitutional were entitled to qualified immunity, as they
29
AO 72A
(Rev.8/82)
acted at the order of a superior and there was no reason why they
should have questioned the validity of that order).
Accordingly, defendants Redden and Levo’s Motion for Summary
Judgment [39] is GRANTED and plaintiff’s Motion for Summary Judgment
[38] is DENIED as to these defendants.
D.
Defendant Price
Defendant Price did not file an answer or respond to plaintiff’s
partial motion for summary judgment [38].
He failed to respond
despite being given notice by the Clerk of Court of his obligation to
do so.
(Notice [50].)
This means that, not only is defendant Price
subject to default, but plaintiff’s statement of material facts is
admitted against him.
FED. R. CIV. P. 55 and LR 56.1(B)(2)(a)(2),
NDGa.
Nevertheless,
the
Court
is
required
to
review
plaintiff’s
citations to the record to see if a genuine issue of fact remains.
Even in an unopposed motion, the moving party still bears the burden
of identifying the evidence “which it believes demonstrates the
absence of a genuine issue of material fact.”
Inc., 588 F.3d 1291, 1303 (11th Cir. 2009).
Mann v. Taser Int’l,
Plaintiff is not
“absolve[d]. . . of the burden of showing that [he] is entitled to
judgment as a matter of law, and a Local Rule 56.1 statement is not
itself a vehicle for making factual assertions that are otherwise
30
AO 72A
(Rev.8/82)
unsupported in the record.”
Id. (citing Reese v. Herbert, 527 F.3d
1253, 1268-69 (11th Cir. 2008)).
Plaintiff asserts in his statement of facts that “Mr. Price was
also in Plaintiff’s residence, Unit A.”
(PSMF [38] at ¶ 21.)
In
support of this statement of fact, plaintiff relies on the deposition
testimony of defendant Weaver.
In his deposition, Weaver recalls
defendant Price going through the area of plaintiff’s residence where
plaintiff was being detained.
(Weaver Dep. [48] at 17.)
Nevertheless, again given the muddled and confusing facts in the
case and what appears to be very peripheral involvement on Redden’s
part, the Court declines at this time to grant a motion for summary
judgment for plaintiff, to the extent he was seeking to make one as
to Price.
Should there be a trial, the Court and counsel will
determine how the case should proceed as to Price.
Plaintiff’s
Partial Motion for Summary Judgment [38] as to defendant Price is
therefore DENIED WITHOUT PREJUDICE.
E.
Defendants Freeman And Applin
Finally, defendants move for summary judgment on plaintiff’s
claims against defendants Freeman and Applin.
Defendant Freeman was
the Sheriff of Fulton County in November, 2007.
(DSMF [39] at ¶ 20.)
Defendant Applin was a Captain and the division commander over the
warrant
services
division
at
the
same
time.
(Id.
at
¶
23.)
Plaintiff argues that defendant Freeman should be held liable for the
31
AO 72A
(Rev.8/82)
failure to supervise and train the sheriff’s deputies who allegedly
violated his constitutional rights.
(Pl.’s Resp. Br. [53] at 1-5.)
Defendant Applin is only alleged to have improperly supervised his
deputies.
(Id. at 5-9.)
1.
Supervisory Liability
Supervisory officials cannot be held liable under § 1983 on the
basis of respondeat superior or vicarious liability.
However, a
supervisor may be held liable when either “(1) the supervisor
personally participates in the alleged constitutional violation, or
(2)
there
is
a
causal
connection
between
the
actions
of
the
supervisor and the alleged constitutional violation.” Mann, 588 F.3d
at 1308.
It follows that a prerequisite to any derivative liability
is the existence of a constitutional violation.
F.3d 952, 955 (11th Cir. 2008).
Gish v. Thomas, 516
As explained above, the Court has
found that, taking the facts in the light most favorable to the
plaintiff, a jury could conclude that defendants Weaver and Borders
violated plaintiff’s Fourth Amendment right to be free from an
unreasonable search and seizure.
Turning
to
supervisory
liability,
it
is
undisputed
that
defendants Freeman and Applin did not personally participate in the
execution of the arrest warrant.
(DSMF [39] at ¶ 27.)
Defendant
Freeman’s alleged supervisory liability must then turn on whether
there is a causal connection between his conduct and the alleged
32
AO 72A
(Rev.8/82)
wrongful search and seizure.
The requisite causal connection may be
established “‘when a history of widespread abuse puts the responsible
supervisor on notice of the need to correct the alleged deprivation,
and he fails to do so,’” or when the supervisor’s “improper ‘custom
or policy . . . resulted in deliberate indifference to constitutional
rights.’”
Gonzalez v. Reno, 325 F.3d 1228, 1234-35 (11th Cir.
2003)(quoting Rivas v. Freeman, 940 F.2d 1491, 1495 (11th Cir.
1991)).
A causal connection can also be established by “facts which
support an inference that the supervisor directed the subordinates to
act unlawfully or knew that the subordinates would act unlawfully and
failed to stop them from doing so.”
Dalrymple v. Reno, 334 F.3d 991,
996 (11th Cir. 2003).
Plaintiff has not made an adequate showing in responding to
summary judgment that defendants Freeman or Applin were on notice of
a “history of widespread abuse” requiring a need to correct the
alleged deprivation.
members
of
the
Plaintiff identifies no prior instances where
Fulton
County
Sheriff’s
Office
executed
arrest
warrants in homes of third parties without any reason to believe the
suspect resided in the home.
See Hartley v. Parnell, 193 F.3d 1263,
1269 (11th Cir. 1999)(“deprivations that constitute widespread abuse
sufficient to notify the supervising official must be obvious,
flagrant, rampant and of continued duration, rather than isolated
occurrences.”) and Williams v. Santana, 340 Fed. App’x 614, 618 (11th
33
AO 72A
(Rev.8/82)
Cir.
2009)(allowing
supervisor
was
a
supervisory
aware
of
eight
liability
prior
claim
incidents
where
involving
the
a
subordinate’s misconduct).
While it was a common occurrence for
deputies
serve
to
be
unable
to
their
arrest
warrants
because
individuals were not at home at the time the warrant was executed,
the record does not disclose that these attempts to serve violated
any constitutional right.
(Applin Dep. [44] at 22.)
There is also no evidence in the record that would support an
inference that these defendants directed their subordinates to act
unlawfully, or knew that they were acting unlawfully and failed to
stop them from doing so.
See Keating v. City of Miami, 598 F.3d 753
(11th Cir. 2010)(allowing a claim for supervisory liability where
plaintiffs
violent
alleged
dispersal
that
of
the
sheriff
lawfully
approved
assembled
orders
protestors).
permitting
To
the
contrary, defendant Freeman appears to lack any knowledge whatsoever
about the execution of warrants in his jurisdiction.
Defendant
Applin did not participate in the execution of the warrant at the
residence, and was not aware, prior to that time, that the residence
was subdivided.
His lack of involvement in the search, while not
dispositive to a claim for supervisory liability, offers little basis
to conclude that he directed deputies to act unlawfully.
Baskin v.
Parker, 602 F.2d 1205, 1208 (5th Cir. 1979)(explaining that a sheriff
may be personally liable under § 1983 for a search carried out under
34
AO 72A
(Rev.8/82)
an illegally obtained warrant if he participated in obtaining the
warrant and organizing the search).
The
only
potential
basis
for
liability
against
defendants
Freeman and Applin must then rest on the existence of a policy or
custom that is deliberately indifferent to the Fourth Amendment right
to be free from unreasonable searches and seizures during the
execution of an arrest warrant.
Plaintiff contends that defendant
Freeman failed to institute a policy that would have alerted the
officers to the fact that an attempt had already been made to serve
an arrest warrant.
(Compl. [2] at ¶ 7.)
Had he done so, plaintiff
argues, the defendants in this case would have known about the
earlier
encounter
at
2147
Beecher,
would
have
known
that
the
residence was a multi-family dwelling, and would not have entered
plaintiff’s unit based only on the arrest warrant for Heyward.
Contrary to plaintiff’s assertion, the evidence shows that, at
the time of the incident, the Sheriff’s Office had a policy aimed at
tracking the status of arrest warrants.
(DSMF [39] at ¶ 24.)
Specifically, the Sheriff’s Office used an electronic system to
record whether an attempt to serve an arrest warrant has been made.
(Id.)
A “cover sheet” is attached to the warrant which allows
officers to note and review prior attempts at service.
(Id.)
The
system keeps track of what happens when attempts are made on a
warrant.
(Id. at ¶ 25.)
35
AO 72A
(Rev.8/82)
Plaintiff disputes the existence of the tracking system.
He
points to defendant Weaver’s testimony, where he describes picking up
a warrant that only bore a name and address, and lacked any other
information regarding prior attempts to serve.
6.)
(Weaver Dep. [48] at
He also points to defendant Applin’s testimony to suggest that
the system was not implemented because Applin says that “they should
have scanned the document out.”
(Applin Dep. [44] at 10-11.)
Neither defendant Weaver nor defendant Applin’s testimony undercuts
the fact that a tracking system was in place.
Whether the warrant
information was particularly recorded in this case is an open debate,
but there is no dispute that a tracking system existed.
Further, the fact that the unidentified officers involved in the
first encounter in early November at the residence may have failed to
execute the above policy does not mean there was an unconstitutional
policy sufficient to impose supervisory liability.
West v. Tillman,
496 F.3d 1321, 1330-31 (11th Cir. 2007)(“Evidence that the [j]ail
staff occasionally erred and failed to fulfill their duties as
instructed
is
insufficient
supervisory liability.”).
sheriff
created
Wanger,
621
F.2d
an
at
to
satisfy
high
standard
for
As such, this is not a case where a
affirmatively
683
the
unconstitutional
(permitting
the
jury
to
policy.
consider
See
the
sheriff’s liability where he promulgated a policy of searching the
premises whenever the person to be arrested could not be found).
36
AO 72A
(Rev.8/82)
As defendants Freeman and Applin did not promulgate a policy
that was deliberately indifferent to the rights of those citizens who
come
into
contact
warrants.
with
deputies
attempting
to
execute
arrest
Their Motion for Summary Judgment as to supervisory
liability is GRANTED.
2.
Failure to Train
Plaintiff
also
claims
that
defendant
Freeman
failed
to
adequately train his deputies, which in turn led to a violation of
plaintiff’s rights. In order to prevail on a failure to train claim,
a plaintiff must establish that the supervisor has a policy of
failing to adequately train or supervise employees and that this
policy caused the employees to violate the plaintiff’s constitutional
rights.
Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir.
1998)(failure to train in a municipal liability context).
The
failure to train must amount to deliberate indifference of the rights
of citizens with whom the supervisor’s employees come into contact.
Id. at 1350.
A failure to train amounts to deliberate indifference
when “the need for more or different training is obvious, such as
when there exists a history of abuse by subordinates that has put the
supervisor on notice of the need for corrective measures, and when
the failure to train is likely to result in the violation of a
constitutional right.” Belcher v. City of Foley, 30 F.3d 1390, 139798 (11th Cir. 1994)(internal citations omitted).
37
AO 72A
(Rev.8/82)
This theory of liability must fail for the same reason as the
supervisory liability claim.
Plaintiff presents no evidence to
suggest that defendant Freeman was, or should have been, aware of the
need
for
training.
See
Gold,
151
F.3d
at
1351-52
(rejecting
supervisory liability for failure to train when no pattern of
incidents put defendant on notice of a need to train).
Moreover, it
is undisputed that the Sheriff’s Office’s policy requires an officer
to discontinue a search if a unit they are searching is subdivided
into sub-units.
(DSMF [39] at ¶ 28.)
The existence of this policy,
and Applin’s knowledge of it, demonstrates some level of training as
to appropriate warrant execution practices.
Accordingly, defendant
Freeman is not liable for any alleged failure to train and his motion
for summary judgment should be GRANTED.
Compare Bruce v. Beary, 498
F.3d 1232 (11th Cir. 2007)(remanding on failure to train issue where
multiple officers testified that no training was offered as to
propriety or scope of administrative inspections).
CONCLUSION
For the foregoing reasons, defendants Weaver and Borders’s
Motion for Summary Judgment [39] is DENIED; defendants Levo and
Redden’s Motion [39] is GRANTED; and defendants Freeman and Applin’s
Motion for Summary Judgment is GRANTED [39].
Plaintiff’s Motion for
Partial Summary Judgment [38] is DENIED without prejudice.
38
AO 72A
(Rev.8/82)
SO ORDERED, this 29th day of MARCH, 2013.
/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE
39
AO 72A
(Rev.8/82)
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