Robinson et al v. Morris et al
MEMORANDUM OPINION AND ORDER. Signed by District Judge Debra M. Brown on 9/22/16. (jtm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
MILTON ROBINSON; and
RAY MORRIS; MICHAEL MELTON;
DWAYNE SMITH; CHRISTOPHER SURF;
JOE WALKER; and JOHN DOES 1 AND 2
IN THEIR INDIVIDUAL CAPACITIES
MEMORANDUM OPINION AND ORDER
This civil rights action brought by Milton and Patricia Robinson against various law
enforcement officials is before the Court on: (1) the motion to dismiss of Dwayne Smith,
Christopher Surf, and Joe Walker, Doc. #25; (2) the motion to dismiss of Ray Morris, Doc. #29;
and (3) the motion to substitute of Smith, Surf, and Walker, Doc. #37.
On September 9, 2015, Milton and Patricia Robinson filed a complaint against Smith,
Surf, Morris, Walker, Michael Melton and “John Does 1 and 2, in their individual capacities.”
Doc. #1. The complaint asserted claims under 42 U.S.C. § 1983 and Bivens v. Six Unknown
Named Agents, 403 U.S. 388 (1971), arising from the execution of a search warrant at an
incorrect address. Id. at 1. On October 9, 2015, the Robinsons filed an amended complaint, as
of right, based on the same general factual allegations. Doc. #6. The amended complaint
contains a single “claims” section, which alleges “unreasonable search and seizure and use of
unnecessary and excessive force under the Fourth and Fourteenth Amendments of the United
States Constitution.” Id. at 4.
Morris and Melton each filed an answer to the amended complaint on, respectively,
October 15, 2015, and October 19, 2015. Doc. #10; Doc. #12. On January 26, 2016, Smith,
Surf, and Walker filed a motion to dismiss (“SSW Motion”), which they supported with
numerous exhibits. Doc. #25. Three days later, on January 29, 2016, Morris filed a motion to
dismiss. Doc. #29.
On February 10, 2016, the Robinsons filed a “Motion for Voluntary Dismissal of Certain
Defendants,” seeking to dismiss Morris, Melton, Smith, and John Does 1 and 2. Doc. #33.
On March 7, 2016, Smith, Surf, and Walker, filed a motion to substitute “Exhibit 1” of
the SSW Motion. Doc. #37. The following day, the Robinsons responded in opposition to the
SSW Motion. Doc. #38. Like the SSW Motion, the Robinsons’ response includes numerous
exhibits supporting its arguments. See Doc. #38-1 to 38-9. Smith, Surf, and Walker timely
replied. Doc. #41.
On March 16, 2016, this Court entered an order granting the Robinsons’ motion for
voluntary dismissal and dismissing Morris, Melton, Smith, and the fictitious defendants. Doc.
Before turning to the merits of the Robinsons’ claims, the Court must first address some
procedural issues raised by the filings to date.
A. Mooted Motions
Since the filing of Morris’ motion to dismiss and the SSW Motion, this Court has
dismissed both Morris and Smith. Accordingly, Morris’ motion to dismiss will be denied as
moot. Furthermore, to the extent the SSW Motion seeks dismissal of the claims against Smith, it
will be denied in part as moot as to Smith but will be addressed below as to Surf and Walker.
B. Motion to Substitute
The motion to substitute seeks to substitute the search warrant that is Exhibit 1 to the
SSW Motion with a different search warrant. Doc. #37. The motion represents that the search
warrant originally attached to the SSW Motion was erroneously included and that the search
warrant to be substituted (which is attached to the motion to substitute) is the warrant relevant to
the Robinsons’ claims. Id. The motion further represents that the requested relief is unopposed.
Upon consideration, the motion to substitute is granted in part as to Surf and Walker, and
denied in part as moot as to Smith due to his dismissal by the Court. The search warrant attached
to the motion to substitute is substituted for Exhibit 1 to the SSW Motion.
C. Conversion of SSW Motion
In the SSW Motion, Surf and Walker seek dismissal under Federal Rule of Civil
As a general matter, where a defendant files a 12(b)(6) motion and
“submit[s] matters outside the pleadings without such evidence being excluded by the Court
[within ten days],” the proper course is to treat the 12(b)(6) motion as a motion for summary
judgment. McNair v. Mississippi, 43 F.Supp.3d 679, 682 (N.D. Miss. 2014) (citing Washington
v. Allstate Ins. Co., 901 F.2d 1281, 1284 (5th Cir. 1990)). With the SSW Motion, Surf and
Walker submitted matters outside the pleadings, and more than ten days have since passed
without such evidence being excluded by this Court. Under these circumstances, the Court will
treat the SSW Motion as a motion for summary judgment. McNair, 43 F.Supp.3d at 682.
Summary Judgment Standard
Under Rule 56 of the Federal Rules of Civil Procedure, “[s]ummary judgment is
appropriate when there are no genuine issues as to any material facts, and the moving party is
entitled to judgment as a matter of law.” Norwegian Bulk Transp. A/S v. Int'l Marine Terminals
P'ship, 520 F.3d 409, 411 (5th Cir. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 22–23
(1986)). To award summary judgment, “[a] court must be satisfied that no reasonable trier of
fact could find for the nonmoving party or, in other words, that the evidence favoring the
nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor.” Id.
at 411–12 (internal quotation marks and citation omitted). To this end, “[t]he moving party bears
the burden of establishing that there are no genuine issues of material fact.” Id. at 412.
“If … the nonmoving party bears the burden of proof at trial, the moving party may
demonstrate that it is entitled to summary judgment by submitting affidavits or other similar
evidence negating the nonmoving party's claim, or by pointing out to the district court the
absence of evidence necessary to support the nonmoving party's case.” Morris v. Covan World
Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998) (citation omitted). If the moving party
makes the necessary demonstration, “the burden shifts to the nonmoving party to show that
summary judgment is inappropriate.” Id. In making this showing, “the nonmoving party must
go beyond the pleadings and by her own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific facts showing that there is a genuine
issue for trial.” Cotroneo v. Shaw Env’t & Infrastructure, Inc., 639 F.3d 186, 191–92 (5th Cir.
2011) (citation and internal punctuation omitted). When considering a motion for summary
judgment, the Court “resolve[s] factual controversies in favor of the nonmoving party.” Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
A. The Properties
Two residential properties, both located in Rosedale, Mississippi, are relevant to this
The home located at 406 Minnie Ervin Road, pictured in Image 1,1 was involved in a
Drug Enforcement Administration (“DEA”) investigation during the time period relevant to this
suit. Doc. #25-3 at ¶ 10.
The home located at 509 Danna Street, pictured in Image 2,2 was owned by the
Robinsons during the time period relevant to this suit. Doc. #38-8 at ¶ 1. The Danna Street
home has the number “509” displayed above its front door. Id. at ¶ 14; Doc. #38-5.
Image 1 is a photograph filed as Exhibit 2 to the Robinsons’ response. See Doc. #38-2. It was taken by Milton
Robinson on August 26, 2014. Doc. #38-8 at ¶¶ 10–14.
The photograph that is Image 2 was filed as Exhibit 1 to the Robinsons’ response. See Doc. #38-1. It was taken by
Milton Robinson on August 26, 2014. Doc. #38-8 at ¶¶ 10–14.
B. DEA Investigation and Search Warrant
During the summer of 2015, DEA agents, along with the Mississippi Bureau of Narcotics
and the Greenville Police Department Drug Unit, were conducting a joint investigation of a drug
trafficking organization involving the transportation of cocaine and marijuana from Texas to
North Mississippi for sale. Doc. #25-3 at ¶¶ 4–5. Of relevance here, three of the officers
involved in the investigation were Surf, a sergeant with the Greenville Police Department
assigned as a Task Force Officer to the DEA, Doc. #25-2 at ¶¶ 1–2; Walker, a special agent with
the DEA assigned to the DEA’s Oxford, Mississippi, office, Doc. #25-3 at ¶¶ 2–3; and Smith,
then the Resident Agent in Charge of the DEA’s Oxford office, Doc. #25-4 at ¶ 2. Smith was the
agent in charge of the investigation. Id. at ¶ 4.
As a part of the investigation, a Bolivar County state court judge issued a search warrant
406 Minnie Ervin Road ... located in Rosedale, Bolivar County, Mississippi. This
residence is described as a brownish colored brick residence with a brownish
colored roof with the front door of the residence facing south. To reach the
residence from the intersection of MS 8 West and MS 1 North; turn north from
MS 8 West onto MS 1 North. Travel approximately ¾ mile north on MS 1 North
and turn east onto Shelby Street (just after passing Rosedale High School). Travel
Shelby Street east to the stop sign at Shelby Street and Riverside Drive. Turn
north onto Riverside Drive and travel north approximately ¼ mile to the
intersection of Riverside Drive and the second entrance of Minnie Ervin Road.
Turn left (east) onto Minnie Ervin and the residence will be the 4th residence on
the north side of the street ....
C. Travel to the Search Scene
On August 26, 2014, the target of the search warrant for the home at 406 Minnie Ervin
Road purchased drugs from his supplier somewhere in Rosedale. Doc. #25-3 at ¶ 7. After the
purchase was made, the target of the warrant eluded arrest and surveillance by law enforcement
officers. Id. at ¶ 8. After learning the target was evading arrest, Smith ordered the immediate
execution of the search warrant “[b]ecause ... there was a fear that the drug evidence would be
destroyed before [the target] could be located.” Doc. #25-4 at ¶ 9. Smith tasked Walker with
leading the team on the execution of the 406 Minnie Ervin warrant.3 Id. at ¶ 10.
Walker, who had only been by 406 Minnie Ervin Road once before, traveled to execute
the warrant with Surf. Doc. #25-3 at ¶ 11–14. The officers traveled to the property “very early”
in the morning. Doc. #25-2 at ¶ 10. Because there were no street signs and there was “minimal
light,” Walker, who was driving, turned one street early and, as a result, ended up driving down
Danna Street rather than Minnie Ervin Road. Doc. #25-3 at ¶ 11.
Other teams were tasked with the execution of different warrants. Doc. #25-4 at ¶ 10.
After turning down the street and identifying what he believed to be the correct house,
but was actually 509 Danna Street, Walker asked Surf to confirm that the residence was in fact
406 Minnie Ervin Road. Id. at ¶ 13. Because the home, like the one at 406 Minnie Ervin, was a
“one story red brick rambler” and because Surf “observed a car parked ... that closely resembled
one that the target drove,” Walker concluded he was at the correct home and ordered the
execution of the search warrant. Id. at ¶¶ 14–15.
D. The Search
At Walker’s direction, members of Walker’s team knocked on the door of the Danna
Street home and announced, “police, search warrant,” for approximately two to three minutes.
Doc. #25-3 at ¶ 15. After receiving no response, the team forced the front door to the residence
open and entered the house. Id. at ¶ 16. At the time of their entry, which was at about sunrise,
the officers had firearms drawn. Doc. #38-8 at ¶ 2.
Surf entered the home and observed a middle aged man, later identified as Milton
Robinson. Doc. #25-2 at ¶ 17. Surf ordered Milton to the floor and, after Milton complied,
handcuffed him “for officer safety purposes.” Id. Shortly after, Surf ordered Milton’s wife,
Patricia Robinson, to the floor and handcuffed her. Id. at ¶ 18; Doc. #38-8 at ¶ 1.
When Walker entered the home, he observed that Milton appeared older than the target,
and that Patricia appeared younger than the target’s mother, who was believed to reside at 406
Minnie Ervin Road. Doc. #25-3 at ¶ 18. Walker asked the Robinsons for their names and
address. Doc. #38-8 at ¶ 6. Walker exited the residence, checked the house number, and
discovered that the officers had searched the wrong home. Doc. #25-3 at ¶ 19. Walker reentered the home, immediately un-cuffed the Robinsons, apologized to them, checked them for
physical injuries, and asked whether they were otherwise in need of assistance. Id. at ¶¶ 21–24.
After learning of the error, Walker ceased all search activities. Doc. #25-3 at ¶ 24. The
search, which lasted approximately ten minutes, resulted in a broken door and laptop (which had
been accidentally knocked off the stand). Id. at ¶ 25. The Robinsons “expressed [to Walker]
concern” about both these items.4 Id.
E. Repair of the Door
Shortly after the entry into the Robinsons’ home, Walker informed Smith that the search
warrant had been executed at the wrong location. Doc. #25-4 at ¶ 12. Smith “immediately”
traveled to the Robinsons’ home and “spent some time talking with the Robinsons and
apologizing for the mistake.” Id. at ¶¶ 13–14. Smith asked the Robinsons if they needed
medical attention and they said they were fine. Id. at ¶ 15. However, the Robinsons informed
Smith that they were in the final stages of closing a sale on their home and that the sale was
scheduled to occur the following day. Id. at ¶¶ 18–19. Smith made arrangements to have the
front door repaired with funds provided by Walker.5 Id. at ¶¶ 16–17.
Workmen appeared at the Robinsons’ home between 6:30 and 7:00 p.m. that evening.
Doc. #38-8 at ¶ 15. At that time, an officer informed the Robinsons that, before beginning work,
the Robinsons were required to sign some paperwork. Id. at ¶ 16. The Robinsons were “assured
that the papers pertained only to getting the door fixed.” Id. at ¶ 17. Because the closing on their
home was scheduled to occur the next day, the Robinsons signed two documents provided by the
officer. Doc. #38-8 at ¶¶ 1, 18.
Although not identified at the time, the incident triggered Milton’s post-traumatic stress disorder, which he suffers
from as a result of his military service. Doc. #38-8 at ¶ 20. Both Milton and Patricia were “shaken and ... developed
anxiety and problems sleeping.” Id.
Walker was later reimbursed by the DEA. Doc. #25-4 at ¶ 17.
The first document was a “Claim for Damage, Injury, or Death” form. Doc. #25-5. As a
“Basis of Claim,” the form lists “Damage to front Door during execution of Search warrant.” Id.
Claim amounts of zero for “Property Damage,” “Personal Injury” and “Total” are reflected on
the form. Id.
The second form, titled, “Voucher for Payment Under Federal Tort Claims Act,” includes
a description of claim as “Damage to front door.” Doc. #25-6. The voucher also includes a
section titled, “Acceptance By Claimants,” which states:
I (We) the claimant(s) and beneficiaries, do hereby accept the within-stated
award, compromise, or settlement as final and conclusive on me (us), on my (our)
heirs, executors, administrators or assigns, and agree that said acceptance
constitutes a complete release by me (us), on my (our) heirs, executors,
administrators or assigns of any and all claims, demands, rights, and causes of
action of whatsoever kind and nature arising from, and by reason of any and all
known and unknown, foreseen and unforeseen and bodily and personal injuries,
damage to property and the consequences thereof, resulting, and to result, from
the same subject matter that gave rise to the claim for which I (we) or my (our)
heirs, executors, administrators, or assigns, and each of them, now have or may
hereafter acquire against the United States and against the employee(s) of the
Government whose act or omission gave rise to the claim by reason of the same
subject matter, including any future claim for the wrongful death of me (us). I
(We) further agree to reimburse, indemnify, and hold harmless the United States,
its agents, servants and employees from any and all claims or causes of action,
including wrongful deaths, that arise or may arise from the acts or omissions that
gave rise to the claim by reasons of the same subject matter.
Doc. #25-6. Although the Robinsons signed the voucher, a number of sections of the form are
empty, specifically: (1) a section for “Amount claimed;” (2) a section for “Amount of award,
compromise, or settlement;” (3) a section for approval of the award by the “Head of Federal
agency, or authorized designee;” and (4) a section for certification of the voucher by an
“Authorized certifying officer.” Id.
After signing the forms, the Robinsons’ door was repaired and the computer was
replaced. Doc. #38-8 at ¶ 19. The closing on the Robinsons’ home took place as scheduled.
Doc. #25-4 at ¶ 19.
As explained above, the Robinsons claim that Surf and Walker violated their right to be
free from warrantless searches and their right to be free from applications of excessive force.6
Surf and Walker argue that dismissal of these claims is warranted because they are entitled to
qualified immunity and because the Robinsons released their claims arising from the unlawful
A. Qualified Immunity
“Qualified immunity protects government officials ‘from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.’” Lytle v. Bexar Cty., 560 F.3d 404, 409 (5th Cir.
2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “In resolving questions of
qualified immunity at summary judgment, courts engage in a two-pronged inquiry.” Tolan v.
Cotton, 134 S.Ct. 1861, 1865 (2014). Under the first prong, the Court “asks whether the facts,
taken in the light most favorable to the party asserting the injury, show the officer’s conduct
violated a federal right.” Id. (internal quotation marks and alterations omitted). “The second
Although it is less than clear, it appears that the Robinsons bring their claims for constitutional violations against
Walker under Bivens and their claims against Surf under § 1983. Under Bivens, “the victim of a constitutional
violation by a federal agent has a right to recover damages against the agent in federal court.” Enplanar, Inc. v.
Marsh, 11 F.3d 1284, 1295 (5th Cir. 1994). In contrast, § 1983 authorizes a cause of action against a person acting
under color of state, rather than federal, law. 42 U.S.C. § 1983. “[C]ourts have found that state officers who were
deputized by federal agencies and who were acting in that capacity are subject to claims under Bivens,” rather than §
1983. Allen v. Travis, No. 3:06-cv-1361, 2008 WL 4602734, at *3 n.2 (N.D. Tex. Oct. 10, 2008) (collecting cases).
Here, Surf and Walker argue that Surf was deputized but offered no evidence on this point. Nevertheless, because
the “constitutional torts authorized by [Bivens and § 1983] are coextensive,” there is no need to distinguish between
the claims here. Izen v. Catalina, 398 F.3d 363, 367 n.3 (5th Cir. 2005).
prong ... asks whether the right in question was ‘clearly established’ at the time of the
violation.’” Id. at 1866.
1. Warrantless search
As an initial matter, the Court must decide whether the conduct of either Surf or Walker
amounted to a warrantless search and, if so, whether the right was clearly established at the time
of the violation.
a. Constitutional violation
“The Fourth Amendment protects ‘the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.’” Devenpeck v. Alford,
543 U.S. 146, 152 (2004) (quoting U.S. Const. amend IV) (internal alterations omitted).
Generally, “[a] warrantless, unconsented entry into a person’s home is presumptively
unreasonable under the Fourth Amendment unless supported by probable cause and conducted
pursuant to exigent circumstances.” United States v. Newman, 472 F.3d 233, 236 (5th Cir.
2006). However, “[i]n Maryland v. Garrison, 480 U.S. 79, 88 (1987), the Supreme Court held
that police officers do not necessarily violate the Fourth Amendment when they mistakenly
execute a search warrant on the wrong address.” Simmons v. City of Paris, 378 F.3d 476, 479
(5th Cir. 2004) (internal citations omitted). Where an officer executes a search warrant on a
wrong address, a court must ask whether the wrongful execution “was objectively
understandable and reasonable.” Garrison, 480 U.S. at 88.7 Even if an officer acted reasonably
See United States v. Patterson, 278 F.3d 315, 318 (4th Cir. 2002) (“[T]he agents’ conduct was consistent with a
reasonable effort to ascertain and identify the place intended to be searched, and thus their search did not violate the
Fourth Amendment.”) (internal quotation marks, citations, and alterations omitted); Powell v. Nunley, 682
F.Supp.2d 1260, 1267 (W.D. Okla. 2010) (“[I]n determining whether the officers’ entry into the Powell residence
violated their Fourth Amendment rights, the question becomes whether the officers’ actions, though mistaken, were
nonetheless objectively reasonable so as to make the entry the sort of ‘honest mistake’ to which Garrison alluded.”);
Dawkins v. Graham, 50 F.3d 532, 534 (8th Cir. 1995) (“[U]nder Garrison, the execution of a valid warrant on the
when executing the warrant, “when law enforcement officers are executing a search warrant and
discover that they have entered the wrong residence, they should immediately terminate their
search.” Simmons, 378 F.3d at 479–80.
Here, the Robinsons argue objective unreasonableness based on the initial entry, not on
any unlawful continuation of the search. See Doc. #39 at 14. Specifically, the Robinsons
Neither officer was very familiar with the area. Thus it was objectively
unreasonable for them to fail to check the house number. It was objectively
unreasonable to decide to enter based on the vague similarities between the two
houses and the two cars, and to ignore the numerous dissimilarities.
Doc. #39 at 14.
In assessing reasonableness, the Court relies primarily on Rogers v. Hopper, a case with
very similar facts to those presented here. 271 F. App’x 431, 434–35 (5th Cir. 2008). In Rogers,
various officers were involved in an undercover investigation into drug sales at a target home.
Id. at 431–32. As a result of the investigation, the officers obtained a search warrant for the
address which, due to security concerns, the officers opted to execute at night. Id. at 432.
Pursuant to a warrant-execution plan, two officers would park a car in front of the target home as
a signal to the searching officers. Id. One of the officers tasked with identifying the home “saw
what he thought was [a] vehicle [previously parked in front of the target home and] relied on the
location of this vehicle to cue him as to the proper house.” Id. The officers parked in front of
the home and, shortly after, realized they had parked in front of the wrong home. Id. Although
they attempted to call off the search, the other officers entered the home and handcuffed the
wrong premises violates the Fourth Amendment if the officers should know the premises searched are not the
premises described in the warrant, i.e., the officers’ mistake is not objectively reasonable.”).
plaintiffs. Id. The plaintiffs sued and the officers moved for summary judgment under qualified
The district court in Rogers granted summary judgment in favor of the defendants,
finding that the officers tasked with identifying the home acted reasonably. Id. On appeal, the
that unreasonableness is shown by these facts: (1) the Plaintiffs’ home was brown
or beige while the proper house was white with green trim; (2) Plaintiffs’ house
had a large tree in the front yard while the proper house did not; (3) Plaintiffs’
house had a covered front porch while the proper house did not; and (4) both
houses had marked house numbers. Plaintiffs also allege that the fact that [the
officers] had been at the correct house at least twice before and that the address
listed in the search warrant was accurate are facts that weigh against the grant of
qualified immunity to the Defendants.
Id. at 433–34.
In concluding that the defendants acted reasonably,8 the Fifth Circuit noted that the
made an initial surveillance of the house shortly before the warrant was executed,
though they increased the chance for mistake by approaching the house in the
opposite direction than they would use later. The relevant houses were next door
to each other. Despite differences in appearance, those differences were less
noticeable at night. It is also true that because the search was to occur at night, the
chance for a mistake was greater and the need for precautions proportionately
were increased. Finally, a car that earlier had been thought to be in front of the
Strangely, the Fifth Circuit in Rogers first held that “[t]he Plaintiffs unquestionably demonstrated the violation of a
constitutional right. The Defendants did not have a warrant or any other constitutionally sufficient justification for
entering the Plaintiffs’ home.” 271 F. App’x at 433. The Fifth Circuit then proceeded to inquire whether the
defendants’ actions were objectively unreasonable. Id. at 433–35. To the extent Rogers held that a Fourth
Amendment violation is shown merely by unlawful entry, it is clearly inconsistent with Garrison, on which the
Rogers court relied. This Court treats the Rogers discussion of objective reasonableness as a Garrison inquiry. To
the extent Rogers represents a modification of the qualified immunity inquiry in wrongful search cases, the result in
this case would not change because the Court finds that, under Rogers, Surf and Walker’s actions were objectively
reasonable. See Hunt v. Tomplait, 301 F. App’x 355, 359 (5th Cir. 2008) (“Although [warrantless] searches are
presumptively unreasonable, law enforcement officers are generally granted qualified immunity if the evidence is
undisputed that they merely made an honest mistake when entering the incorrect home. An honest mistake can only
be clearly established if the officers’ conduct is consistent with a reasonable effort to ascertain and identify the place
to be searched.”) (internal citations and quotation marks omitted).
house to be searched was instead in front of the Plaintiffs' home when the search
Id. at 435. In reaching this conclusion, the Fifth Circuit distinguished the facts of Rogers from
Hartsfield v. Lemacks, 50 F.3d 950 (11th Cir. 1995), in which the Eleventh Circuit found that the
defendant officers had acted unreasonably where the leading officer “did not take any
precautionary measures to ensure that he was leading the team to the right house” and “did
nothing to avoid the mistaken execution” of the warrant. Rogers, 271 F. App’x at 434–35
(internal quotation marks omitted). The Fifth Circuit also noted “[a]dditional indications of the
unreasonableness of the error [in Hartsfield:] that execution of the warrant was during daylight
hours; the numbers on the homes were clearly marked; the homes were on different parts of the
street; and the homes were separated by at least one house.” Id.
Here, as in Rogers, officers with limited experience with a target home erroneously
executed a search warrant during a time of day with minimal light based primarily on the
presence of a car the officers believed to have a connection to the target home.9 Furthermore,
here, as in Rogers, the plaintiffs argue that the defendants acted unreasonably because the target
home and the searched home had physical differences and had visible street numbers.
essence, the only differences between this case and Rogers are that: (1) weighing against
reasonableness, the target home and searched home here were located on different streets, not
next-door; and (2) weighing in favor of reasonableness, the officers in this case were under
The Robinsons, arguing that the two cars were not similar, have submitted photographs of a tan four-door Chrysler
300 parked outside the target home and their own tan two-door Chevrolet Monte Carlo. See Doc. #38-8 at ¶ 12;
Doc. #38-3; Doc. #38-4. Images of the cars, which were taken at different angles, do not reveal substantial
differences between the two automobiles. Furthermore, there is no indication in the record that the Chrysler 300 is
the car the target drove and, therefore, is the car on which Walker based his initial assessment.
orders to effectuate an “immediate” execution of the warrant to preserve evidence. 10 Under these
circumstances, the Court must conclude that, under Rogers, Surf and Walker acted objectively
reasonably and that, therefore, the officers did not violate the Fourth Amendment in searching
the Robinsons’ home.
b. Clearly established
At the second stage of the qualified immunity inquiry, the Court must “assess whether the
defendant’s conduct was objectively reasonable in light of clearly established law.” Thompson v.
Ushur Cty., 245 F.3d 447, 457 (5th Cir. 2001). In making this determination, the Court must
look beyond “general propositions,” and evaluate “the specifics facts of a case ....” Gonzalez v.
Huerta, 826 F.3d 854, 857–58 (5th Cir. 2016). Under this standard, “the question becomes
whether there is either directly controlling authority establishing the illegality of such conduct or
a consensus of cases of persuasive authority such that a reasonable officer could not have
believed that his actions were lawful.” Id. at 858 (emphasis in original, internal quotation marks
and alterations omitted).
Put differently, the Court must ask whether, in light of relevant
authority, a reasonable police officer should have known that Walker and Surf’s efforts in
ascertaining the identity of the place to be searched were unreasonable, and therefore illegal.
Given the holding in Rogers regarding objective reasonableness, the Court cannot
conclude that a reasonable officer observing similarities between a target home and another
home, and the presence of a car similar to a target’s car, would believe he was acting unlawfully
in executing a warrant on the observed home. See generally White v. Mclain, No. 15-15270, __
F. App’x __, 2016 WL 1566639, at *3 (11th Cir. Apr. 19, 2016) (“None of our precedents
See Mesa v. United States, 123 F.3d 1435, 1438 (11th Cir. 1997) (“[I]n deciding how extensively to investigate
the location and identity of the subject, agents may weigh the urgency of apprehending the subject in light of such
factors as the potential threat the subject poses to public safety and the likelihood that the subject may destroy
holds—or logically compels the conclusion—that an officer's well-intentioned attempts to
ascertain and identify the property described in a warrant are not reasonable simply because they
lead to an error, or because more accurate means of ascertaining the property’s identity were
available.”); Cf. Hartsfield, 50 F.3d at 955 (“Given the per se rule against warrantless searches
and the guidance of the Garrison court’s description of reasonable police efforts, all reasonable
police officers should have known that Newton’s acts-searching the wrong residence when he
had done nothing to make sure he was searching the house described in the warrant-violated the
law.”). Thus, even if Walker and Surf acted unreasonably in executing the warrants, they are
entitled to qualified immunity on the warrantless search claims.
2. Excessive force
Having found that the warrantless search claims cannot survive summary judgment, the
Court turns to the claims based on excessive force.
a. Constitutional violation
“To succeed on an excessive-force claim under the Fourth Amendment, plaintiffs must
demonstrate (1) an injury that (2) resulted directly and only from the use of force that was
excessive to the need, and that (3) the force used was objectively unreasonable.” Brothers v.
Zoss, No. 15-51204, __ F.3d __, 2016 WL 4896053, at *3 (5th Cir. Sep. 14, 2016) (internal
quotation marks omitted). Here, Surf and Walker argue that the excessive force claims must fail
because the Robinsons suffered no injury. Doc. #26 at 17. The Robinsons did not respond to
this argument, and Surf and Walker contend that this failure operates as a concession of this
argument. Doc. #41 at 6.
Generally, where a plaintiff has failed to respond to summary judgment arguments
against particular claims, such claims are deemed waived. See Muniz v. El Paso Marriott, 773
F.Supp.2d 674, 683–84 (W.D. Tex. 2011) (collecting cases).
Accordingly, the Robinsons’
failure to respond to Walker and Surf’s arguments regarding the excessive force claims operates
as a waiver of such claims. Id. But, even if the claims were not waived, they would still fail.
To satisfy the first prong of an excessive force claim, an “injury must be more than de
minimis.” Tarver v. City of Edna, 410 F.3d 745, 752 (5th Cir. 2005). Under this standard,
allegations of emotional distress without supporting medical evidence cannot survive a motion
for summary judgment. Brooks v. City of West Point, 639 F. App’x 986, 990 (5th Cir. 2016).
In this case, the Robinsons aver that, as a result of the search, they suffered anxiety and
lack of sleep. Doc. #38-8 at ¶ 20. Furthermore, Milton avers that the incident re-triggered his
post-traumatic stress disorder. Id. However, the Robinsons have not submitted any medical
evidence in support of these allegations. Accordingly, the excessive force claims must fail. See
Brooks, 639 F. App’x at 990 (“Brooks’s additional allegation that he suffered an increase in his
PTSD symptoms, which he does not support with medical evidence, does not suffice to survive
b. Clearly established
Having found no constitutional violation as to the excessive force claim, there is no need
to consider the second prong of the qualified immunity analysis.
B. Release of Claims
Finally, having found that Surf and Walker are entitled to qualified immunity on all
claims, the Court declines to consider the scope and validity of the release signed by the
For the reasons above, it is ORDERED:
The motion to dismiss filed by Morris  is DENIED as moot due to the
Court’s prior dismissal of Morris.
The motion to substitute  filed by Smith, Surf and Walker is GRANTED in
Part and DENIED in Part. The motion is GRANTED to the extent it seeks relief on the part of
Surf and Walker and DENIED as moot as to Smith due to the Court’s prior dismissal of Smith.
The motion to dismiss filed by Smith, Surf, and Walker, which this Court
converted to a motion for summary judgment , is GRANTED in Part and DENIED in
Part. The motion is GRANTED to the extent it seeks dismissal of all claims against Surf and
Walker and DENIED as moot as to Smith due to the Court’s prior dismissal of Smith.
SO ORDERED, this 22nd day of September, 2016.
/s/ Debra M. Brown
UNITED STATES DISTRICT JUDGE
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