Smith et al v. Roundtree et al
Filing
59
ORDER granting Officer Archie Davis' 37 Motion for Summary Judgment; granting Officer Nick Roundtree's 44 Motion for Summary Judgment. The Clerk is DIRECTED to enter the appropriate judgment and to close this case. Signed by Chief Judge Lisa G. Wood on 11/18/2016. (ca)
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RUSSELL V. SMITH and
LYNETTE SMITH,
Plaintiffs,
CV 215-04
V.
NICK ROUNDTREE; ARCHIE DAVIS;
ANTHONY BROWN; and THE CITY OF
DARIEN,
Defendants.
ORDER
Plaintiffs Russell and Lynette Smith
(^'the
Smiths") bring
suit against Defendants for an alleged illegal seizure of their
property pursuant to a court order.
Pending before the Court
are Defendant Officer Nick Roundtree's
Summary
(^'Davis")
Judgment
and
{Dkt.
Officer
No.
44)
Anthony
{^^Roundtree") Motion for
and
Officer
Archie
Davis
Brown's
(^^Brown")
Motion
for
below,
Roundtree's
Motion
for
Summary Judgment (Dkt. No. 37).
For
the
reasons
set
forth
Summary Judgment is GRANTED (Dkt. No. 44).
Further, Brown and
Davis' Motion for Summary Judgment is GRANTED (Dkt. No. 37).
D72A
ev. 8/82)
FACTUAL BACKGROUND
On
Darien,
April
8,
Georgia
2013,
Defendant
residence.
Brown
Brown
came
arrived
to
in
the
Smiths'
response
to
a
complaint by the mother of one of the Smiths' grandchildren,
Debra
Newman
(''Newman"),
that
the
Smiths
were
preventing
from obtaining her private property from their shed.
47 p. 1.
her
Dkt. No.
Brown repeatedly told the Smiths that they would have
to let Newman retrieve her things.
Smiths refused
court order.
and
told
Brown that
at 2.
Dkt. No. 47 pp. 1-3.
he
would
The
need a warrant or
Later that day, Roundtree arrived and
informed the Smiths that if Newman had property in the shed,
they would need to let her retrieve it.
Again the Smiths
said that they would only obey a warrant or court order.
Roundtree
spoke
with
Davis
on
the
phone
Id.
shortly after.
Roundtree indicated that he would obtain a court order and that
he had spoken to the magistrate judge regarding the issue.
44-5 pp. 7-8.
Through some confusion, Davis came to believe
that Roundtree had already obtained the court order.
Dkt. No. 47-2 p. 1.
court order.
Dkt.
at 8;
Roundtree, however, had not obtained a
Dkt. 42 p. 30.
Davis repeatedly told the Smiths
that they needed to comply based on his incorrect assumption
that there was a court order.
Dkt. No. 47 pp. 4-5.
Believing
they were legally compelled to do so, the Smiths allowed Newman
to collect various boxes from the shed.
Id.
The Smiths later
discovered that no court order had been issued.
The Smiths have
since moved to South Carolina and are unsure if Newman actually
took any of their possessions that day.
Dkt. No. 44-6 at 45:5-
7.
On
January
6,
2015,
The
Smiths
brought
a
Section
1983
action against Defendants alleging violations of their Fourth
Amendment rights.
Dkt. No. 1.
Roundtree, Davis, and Brown have
now moved for summary judgment on those claims.
LEGAL STANDARD
The party seeking summary judgment bears the initial burden
of demonstrating the absence of a genuine issue of
fact.
material
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
To
satisfy this burden, the movant must show the court that there
is an absence of evidence to support the nonmoving party's case.
Id. at 325.
If the moving party discharges this burden, the
burden shifts to the nonmovant to go beyond the pleadings and
present affirmative evidence to show that a genuine issue of
fact does exist.
257 (1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
The nonmovant may satisfy this burden in two ways:
First, the nonmovant ^^may show that the record in fact contains
supporting evidence, sufficient to withstand a directed verdict
motion, which was
^overlooked or ignored' by the moving party,
who has thus failed to meet the initial burden of showing an
absence of evidence."
Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1116 (11th Cir. 1993) (quoting Celotex Corp., 477 U.S. at
332 (Brennan, J., dissenting)).
forward
with
directed
additional
verdict
evidentiary
Second, the nonmovant ^'may come
evidence
motion
deficiency."
at
sufficient
trial
at
based
1117.
to
withstand
on
the
Where
the
a
alleged
nonmovant
instead attempts to carry this burden with nothing more ^^than a
repetition of his conclusional allegations, summary judgment for
the defendants [is] not only proper but required."
Morris v.
Ross, 663 F.2d 1032, 1033-34 (11th Cir. 1981).
DISCUSSION
I.
FEDERAL CLAIMS
A.
Standing
Defendants first contest Plaintiffs' standing.
sole basis for standing is that a seizure of
occurred
under
the
Fourth
Amendment.
The Smiths
their property
A ''seizure
of
property
under the Fourth Amendment occurs when there is some meaningful
interference with an individual's possessory interests in that
property."
Porter v. Jewell, 453 F. App'x. 934, 936-937 (11th
Cir.
(citation
2012)
Fourth
Amendment
and
rights
internal
cannot
quotation
be
marks
asserted
omitted).
vicariously.
Alderman v. United States, 394 U.S. 165, 173 (1969).
The Smiths have not created a genuine issue of material
fact
regarding
whether
Newman
took
their
property.
Specifically, Lynette Smith testified that the boxes that were
taken only contained some of her adult children's clothes.
No.
44-4
at
48:20-25;
49:1-9.
Russell
Smith's
similarly fails to establish an issue of fact.
Dkt.
testimony
When asked if
any of his things were taken, he replied, ^'I'm not sure," and,
cannot swear [Newman] took them."
Dkt. No. 44-6 at 44:15-20.
Furthermore, the items in questions were ^'router bits and stuff
and small items. . . [s]mall tools."
the
Smiths
Russell
have
Smith
since
moved
admitted
the
from
items
at 44:22-24.
their
^'may
home
still
in
be
Finally,
Darien
in
the
somewheres [sic] because there's still stuff in the shed."
and
shed
Id.
at 45:5-7.
Unsupported speculation is insufficient to create a genuine
issue
of
material
fact
needed
to
survive
summary
judgment.
Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1181 (11th Cir. 2015)
(citation
omitted).
Here,
the
Smiths
are
unsure
if
Newman
actually took anything that belonged to them and have admittedly
not searched thoroughly enough in their shed to testify to that
fact.
If
standing,
Plaintiffs
the
Court
themselves
cannot
are
not
possibly
sure
deny
that
summary
they
have
judgment.
Instead, the Smiths merely provide unsupported speculation that
Newman
took
the
items
when in fact
the
Smiths
are
unsure
what
happened to them.
Dkt. No. 44-6 44:15-20; 45:5-7.
Therefore,
the Court will grant Defendants' motions for summary judgment.^
B.
Qualified Immunity
Even if the Smiths could establish a genuine issue of fact
regarding standing, which they have not, their lack of clarity
as to whether their items were actually taken is still fatal to
their claim.
Specifically, the Smiths cannot clearly establish
they had a Fourth Amendment right in the property, and so all
Defendants are entitled to qualified immunity.
Defendants are
not entitled to qualified immunity if the Smiths can establish
that: (1) the officers violated constitutional rights; and (2) a
Fourth
Amendment
right
was
clearly
Callahan, 555 U.S. 223, 232 (2009)
established.
Pearson
v.
Qualified immunity exists
to offer "complete protection for government officials sued in
their individual capacities if their conduct
Moes not violate
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)).
protects
"all
but
the
When properly applied, the doctrine
plainly
incompetent
or
one
who
is
^ The Smiths have not alleged that a bailment exists here.
Such a theory
requires the bailee to have complete control over the property. Bohannon v.
State, 251 Ga. App. 771, 772 (2001). Here, the Smiths had no such control.
Dkt. No. 44-4 at 45:7-12.
^ Federal courts have discretion in deciding which prong to address first.
See Pearson, 555 U.S. at 236.
knowingly
violating
the
federal
law."
Id.
(quoting
Lee
v.
Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)).
As an initial matter, a public official must prove that he
was acting within the scope of his discretionary authority at
the time the alleged wrongful acts occurred.
668 F.3d 1244, 1250 (11th Cir. 2012).
that
all
Defendants
discretionary
were
at
authority.
all
The
Terrell v. Smith,
Here, there is no dispute
times
acting
burden
then
within
shifts
to
plaintiff to show that qualified immunity does not apply.
Here,
the
Smiths
allege
a
Fourth
Amendment
their
the
Id.
violation
against all parties in that Davis allowed Newman to enter the
Smiths'
shed
and
obtain
her
things.
As
already
discussed,
however, the Smiths only had a Fourth Amendment right in their
own things.
8,
2013
The Smiths' right in the possessions taken on April
must
immunity.
be
^'clearly
established" - to
Pearson, 555 U.S. at 232.
overcome
qualified
Here, the Smith's right in
the possessions is anything but clear.
The Smiths themselves
cannot state whether or not Newman took the items, whether they
are still in the shed, or if the various small items were simply
lost.
Dkt.
No.
44-4
at
48:20-25;
49:1-9.
Defendants are entitled to qualified immunity.
Therefore,
all
C.
Plaintiff Cannot Amend their Complaint Response to
Summary Judgment
For the first time, the Smiths now seek to add due process
and trespass claims under Georgia law.
Dkt. No. 47 p. 6.
The
Smiths cannot amend their Complaint in their response to summary-
judgment.
{11th
Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315
Cir. 2004) (^^Liberal pleading does
not require that, at
the summary judgment stage, defendants must infer all possible
claims
that
could
complaint.").
arise
out
of
facts
set
forth
in
the
The Smiths did not previously seek leave to amend
their Complaint to add these claims and a response to summary
judgment is an improper vehicle to do so.
Therefore, the
Court declines to address new claims not previously alleged in
the Smiths' Complaint.
CONCLUSION
For
the
Roundtree's
reasons
Motion
for
stated
above.
Summary
Defendant
Judgment
(Dkt.
Officer
No.
44)
Nick
and
Defendants Officer Anthony Brown and Archie Davis' Motion for
Summary Judgment (Dkt. No. 37) are hereby GRANTED.
The Clerk of
Court is DIRECTED to enter the appropriate judgment and to close
this case.
so ORDERED, this 18th day of November, 2016.
LISA.GODBEY WOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
D72A
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