Whitefoot et al v. Sheriff of Clay County et al
MEMORANDUM OPINION re 163 Order on Motion for Reconsideration, Order on Motion for Summary Judgment. Signed by District Judge Sharion Aycock on 9/5/2017. (dbm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
DAVID J. WHITEFOOT, and
ELENA R. WHITEFOOT
CAUSE NO. 1:14-CV-113-SA-DAS
SHERIFF OF CLAY COUNTY, et al.
The Court issued a number of Orders in this case disposing of the majority of the
Plaintiffs’ claims. The Court’s most recent Memorandum Opinion  outlines the Plaintiff’s
remaining claim that is scheduled to proceed to a jury trial on September 18, 2017. The
Plaintiffs’ sole remaining claim is a 42 U.S.C. § 1983 claim against Clay County Mississippi,
and several Sheriff’s Deputies in their official capacities, for an alleged constitutional violation.
Specifically, the Plaintiffs’ claim is a Fourteenth Amendment Due Process claim arising under
the Fourth Amendment for an unauthorized entry on the Plaintiffs’ private property by a Clay
County Sheriff’s Deputy to serve civil process at the Plaintiffs’ residence. All of the Plaintiffs’
other claims, including all of their state law claims, were dismissed by other Orders of this Court.
See Orders [92, 108, 110, 118].
The County Defendants filed a motion  requesting summary judgment in their favor
on the Plaintiffs’ final claim. The Plaintiffs filed a Response [151, 152] and the County filed a
Reply  making this issue ripe for review.1
The pro se Plaintiffs also filed a number of other Notices and Responses, which the Court has reviewed and
considered. The Plaintiffs also filed a second Motion for Reconsideration  that does not raise any new grounds
for reconsideration not already raised in their previous Motion for Reconsideration , and denied . Because
all of the arguments in the renewed motion have already been addressed by the Court, the Plaintiffs’ renewed
request for reconsideration is denied.
Factual and Procedural Background
As previously noted by this Court, the Plaintiffs contend that a Clay County Sheriff’s
Deputy intruded onto their property to serve civil process. According to the Plaintiffs, their house
is surrounded by thirty-two acres, and is approximately 200 yards from the road, the entrance to
which is blocked by a locked chain. “No trespassing” signs were posted along the driveway to
their house. In order to approach the house, the Sheriff’s Deputy had to park his car at the locked
entrance, climb over the locked chain, and walk 200 yards before reaching the Plaintiffs’ house,
climbing up onto their porch, and knocking on the door.
The County Defendants now request summary judgment on the Plaintiffs’ claim by
arguing, inter alia, that the Deputy’s actions were authorized under state law, committed
pursuant to implied consent and custom, and reasonable under the Fourth Amendment. The
County Defendants also dispute the facts underlying the claim.
Standard of Review
Federal Rule of Civil Procedure 56 governs summary judgment. Summary judgment is
warranted when the evidence reveals no genuine dispute regarding any material fact, and the
moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). The rule
“mandates the entry of summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
The moving party “bears the initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of [the record] which it believes demonstrate
the absence of a genuine issue of material fact.” Id. at 323, 106 S. Ct. 2548. The nonmoving
party must then “go beyond the pleadings” and “designate ‘specific facts showing that there is a
genuine issue for trial.’” Id. at 324, 106 S. Ct. 2548 (citation omitted).
In reviewing the evidence, factual controversies are to be resolved in favor of the nonmovant, “but only when . . . both parties have submitted evidence of contradictory facts.” Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). When such contradictory facts
exist, the Court may “not make credibility determinations or weigh the evidence.” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000).
Conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments have
never constituted an adequate substitute for specific facts showing a genuine issue for trial. TIG
Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002); SEC v. Recile, 10 F.3d
1093, 1097 (5th Cir. 1993); Little, 37 F.3d at 1075.
Discussion and Analysis
At the outset, the Court notes that the County Defendants have now advanced, for the
first time, another version of the relevant facts from Deputy Williams’ point of view. Deputy
Williams’ version of events directly contradicts the Plaintiffs’ version, specifically with respect
to the gate and approach to the Plaintiffs’ residence and other circumstances surrounding the
service of process at issue in this case. Of course, at this summary judgment stage, the Court
must construe these disputed, material for the reasons noted below, facts in the Plaintiffs’ favor
making summary judgment inappropriate.
In addition, the Court notes that the County Defendants’ main argument is that the
Deputy’s intrusion onto the Plaintiffs’ property was “directed” under state law and that consent
was given through an “implied legal privilege or license”. This argument is premised on the idea
that there is a common custom or practice under common law that allows Sheriffs to intrude on
private property for the “legal” purpose of serving civil process. Inexplicably, the County
Defendants then argue that the Plaintiffs have failed to bring forth any evidence of an official
policy or custom that is the moving force behind their alleged constitutional violation.
The County Defendants remaining arguments are premised on the Deputy’s newly
advanced version of facts. Specifically, that his common practice was to post a note at the
entrance to the Whitefoot property alerting them to his need to contact them, and that only after
obtaining additional consent, did he make further entry onto the property. As noted, the
Plaintiffs’ version of facts directly contradicts this version.
The correct inquiry here, and “the touchstone of Fourth Amendment analysis is whether a
person has a ‘constitutionally protected reasonable expectation of privacy.’” California v.
Ciraolo, 476 U.S. 207, 211, 106 S. Ct. 1809, 90 L. Ed. 2d 210 (1986) (citing Katz v. United
States, 389 U.S. 347, 360, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring)). “Katz
posits a two-part inquiry: first, has the individual manifested a subjective expectation of privacy
in the object of the challenged search? Second, is society willing to recognize that expectation as
reasonable?” Id., 106 S. Ct. 1809 (citing Smith v. Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577,
61 L. Ed. 2d 220 (1979)).
In the instant case, similar to the fence constructed to hide property from view considered
in Ciarolo, the gate, signs, and other steps taken by the Plaintiffs demonstrate, so far as normal
rural traffic is concerned, that they “took normal precautions to maintain [their] privacy.” Id.,
106 S. Ct. 1809 (citing Rawlings v. Kentucky, 448 U.S. 98, 105, 100 S. Ct. 2556, 65 L. Ed. 2d
The Court finds the Ciraolo Court’s consideration of curtilage instructive in the instant
case. “At common law, the curtilage is the area to which extends the intimate activity associated
with the ‘sanctity of a man’s home and the privacies of life.’” Ciraolo, 476 U.S. at 212–13, 106
S. Ct. 1809 (citing Oliver, 466 U.S. at 180, 104 S. Ct. 1735 (quoting Boyd v. United States, 116
U.S. 616, 630, 6 S. Ct. 524, 29 L. Ed. 746 (1886)). “The protection afforded the curtilage is
essentially a protection of families and personal privacy in an area intimately linked to the home,
both physically and psychologically, where privacy expectations are most heightened. Id., 106 S.
Turning to the second question from Katz, whether that expectation is reasonable, the
Court “must keep in mind that ‘[t]he test of legitimacy is not whether the individual chooses to
conceal assertedly ‘private’ activity,’ but instead ‘whether the government’s intrusion infringes
upon the personal and societal values protected by the Fourth Amendment.’” Id., 106 S. Ct. 1809
(citing Oliver, 466 U.S. at 181-83, 104 S. Ct. 1735). This is a fact-intensive inquiry that requires
consideration of the very facts that the parties in this case dispute. Because the weighing of such
facts and evidence is inappropriate at this summary judgment stage, the Court will allow this
claim to proceed to a full trial. Reeves, 530 U.S. at 150, 120 S. Ct. 2097.
The Oliver Court also clarified the nature of the inquiry from Katz. “The test of
legitimacy is not whether the individual chooses to conceal assertedly ‘private’ activity. Rather,
the correct inquiry is whether the government’s intrusion infringes upon the personal and societal
values protected by the Fourth Amendment.” Oliver, 466 U.S. at 182–83, 104 S. Ct. 1735.
Finally, the Court finds particularly applicable to the issues in this case, the Oliver
Court’s explanation of the relationship between an unconstitutional search and the common law
Nor is the government’s intrusion upon an open field a “search” in
the constitutional sense because that intrusion is a trespass at
common law. The existence of a property right is but one element
in determining whether expectations of privacy are legitimate.
‘The premise that property interests control the right of the
Government to search and seize has been discredited.
Oliver, 466 U.S. at 182–83, 104 S. Ct. 1735 (citing Katz, 389 U.S. at 353, 88 S. Ct. 507 (quoting
Warden v. Hayden, 387 U.S. 294, 304, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967)). The Oliver
Court went further, to explain that
Even a property interest in premises may not be sufficient to
establish a legitimate expectation of privacy with respect to
particular items located on the premises or activity conducted
thereon. Rakas v. Illinois, 439 U.S. 128 at 144, n. 12, 99 S. Ct. 421,
58 L. Ed. 2d 387 (1978). The common law may guide
consideration of what areas are protected by the Fourth
Amendment by defining areas whose invasion by others is
wrongful. Id. at 153, 99 S. Ct. 421 (POWELL, J., concurring). The
law of trespass, however, forbids intrusions upon land that the
Fourth Amendment would not proscribe. For trespass law extends
to instances where the exercise of the right to exclude vindicates
no legitimate privacy interest.
Oliver, 466 U.S. at 182–83, 104 S. Ct. 1735. As noted, the Court finds these above quoted
analyses particularly relevant and instructive as to the claim in this case. The Parties would do
well to take note of these precedents in preparation for a trial of this case on the merits.
In some of their recent pleadings, the Plaintiffs have expressed a desire to dismiss their
remaining claim in an effort to hasten their opportunity to appeal to the Fifth Circuit Court of
Appeals. The Court urges the Plaintiffs to carefully consider all of the implications of voluntarily
dismissing their remaining claim and to review the Federal Rules of Civil Procedure, especially
Rules 41 and 54.
The Plaintiffs’ sole remaining claim is a 42 U.S.C. §1983 for a constitutional violation
arising under the Fourth and Fourteenth amendments.
If the Plaintiffs wish to dismiss this claim, they must inform the Court immediately in
writing with a short and unequivocal statement.
Should the Plaintiffs wish to proceed to trial on this claim, they must appear
telephonically at the Final Pretrial Conference as scheduled by the Magistrate Judge in this case,
or face sanctions, including dismissal, as noted in the Magistrate Judge’s Amended Order 
governing the pretrial conference.
The Plaintiffs’ Motion for Reconsideration  is DENIED.
The Defendants’ Motion for Summary Judgment  is DENIED.
IT IS SO ORDERED on this, the 5th day of September, 2017.
/s/ Sharion Aycock
UNITED STATES DISTRICT JUDGE
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