Irvin v. Clarksville Gas & Water Department et al

Filing 74

REPORT AND RECOMMENDATION: Magistrate Judge Brown RECOMMENDS that Defendants' MOTION for Summary Judgment 51 be Granted and all of Plaintiff's claims be DISMISSED. Signed by Magistrate Judge Joe Brown on 2/21/12. (xc:Pro se party by regular and certified mail.)(dt)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

ROBERT THOMAS IRVIN,
Plaintiff
v.
CLARKSVILLE GAS & WATER
DEPARTMENT, et al.,

Defendants.

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Case No. 3:11-cv-00529
Judge Campbell/Brown

REPORT AND RECOMMENDATION
Presently pending before the Magistrate Judge is Defendants’ Motion for Summary Judgement,
filed January 3, 2012. (Docket Entry 51). In support of said motion, Defendants also filed a supporting
memorandum; statement of facts; and four affidavits. (Docket Entries 52-57). On January 12, 2012,
Plaintiff filed a response in opposition to summary judgment. (Docket Entry 58). A week later, on
January 18, 2012, Plaintiff filed additional objections and Plaintiff’s own affidavit. (Docket Entries 59,
60). Defendants’ filed a reply memorandum on February 1, 2012. (Docket Entry 66-1).
For the reasons set forth below, the Magistrate Judge RECOMMENDS that Defendants’ Motion
for Summary Judgement be GRANTED and all of Plaintiff’s claims DISMISSED.
I. PROCEDURAL HISTORY
This case commenced when Plaintiff, a resident of Clarksville, Tennessee, filed a pro se, in
forma pauperis action, pursuant to 42 U.S.C. §1983, alleging violations of his constitutional rights. On
April 22, 2011, Plaintiff filed a motion for an interlocutory order in which he alleged that Defendants

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Clarksville Gas & Water Department (“CGWD”) and the Clarksville Police Department (“CPD”)
violated his Fourth Amendment rights by conducting illegal searches. (Docket Entry 1, p. 1-2).
Specifically, Plaintiff alleged that unnamed representatives from Defendants CGWD and CPD searched
his yard to inspect his water meter in order to ascertain whether or not there had been illegal use of the
water meter. Id. Plaintiff claims that he was not notified of the search prior to its occurrence, and no
warrant was presented to him at the time of the search. Id.
On April 26, 2011, Plaintiff filed an Ex Parte Petition for “An Interlocutory Order” to add claims
against Clarksville Building & Codes Department to his original filing. (Docket Entry 2). Plaintiff
alleged that Clarksville Building & Codes Department violated his civil rights by requiring that he should
comply with the Clarksville City Code mandating that every dwelling has an adequate supply of water
from an approved distribution system connected to a potable water supply. Id.
On July 15, 2011, Defendants’ counsel filed a motion to dismiss (and supporting memorandum)
on behalf of the Clarksville Police Department, the Clarksville Building & Codes Department and the
Clarksville Gas & Water Department. (Docket Entries 20, 21). On July 22 2011, Plaintiff filed an
Amended Complaint, in which Plaintiff identified various individual Defendants including Eddie Glenn,
employee of Clarksville Gas & Water Department; Pat Hicket, General Manager of Clarksville Gas &
Water Department; Barbara J. Burroughs, employee of Clarksville Gas & Water Department; Tanner
Pew and Justin Bailey, officers of the City of Clarksville Police Department; Robert Eley and Randall
Mathews, employees of City of Clarksville Building & Codes Department; Kim McMillan, Mayor of
the City of Clarksville; and an unnamed Mayor's receptionist. (Document Entry 23).
The Magistrate Judge responded to Defendants’ July 15, 2011 motion to dismiss with a Report
and Recommendation filed August 12, 2011. (Docket Entry 29). The Magistrate Judge recommended

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that said motion to dismiss be granted and that Plaintiff’s claims against Clarksville’s Gas & Water,
Police, and Building & Codes Departments be dismissed. Id. The Magistrate Judge also recommended
that, except for Plaintiff’s claims against Defendants Eddie Glenn, Tanner Pew and Justin Bailey, in their
individual capacities, Plaintiff’s claims against the remaining individuals in their official and/or
individual capacities be dismissed. The Magistrate Judge’s Report and Recommendation was adopted
and approved by this Court on September 6, 2011. (Docket Entry 34). As to the surviving claims
against Defendants Eddy Glenn, Justin Bailey and Tanner Pew, Defendants filed a corresponding answer
on October 12, 2011. (Docket Entry 40).
On November 28, 2011, Plaintiff again attempted to add claims by filing “Plaintiffs’ Amendment
Federal Rules of Civil Procedure Rule 4(m)...Time Limit for Service.” (Docket Entry 46). The
Magistrate Judge denied that motion in an Order filed on February 2, 2012 and Plaintiff was thus unable
to further amend his amended complaint. (Docket Entry 67).
Defendants’ filed the now-pending Motion for Summary Judgement (and supporting
memorandum) on January 3, 2012. (Docket Entries 51, 52). With said motion, Defendants filed
“Defendants’ Statement of Undisputed Material Facts” (Docket Entry 53) and affidavits of Brandy
Jarrell, Eddy Glenn, Tanner Pew and Justin Bailey. (Docket Entries 54-57).
On January 12, 2012, Plaintiff filed a response in opposition to Defendants’ motion for summary
judgment–although he failed to specifically respond to Defendants’ statement of undisputed material
facts. (Docket Entry 58). On January 18, 2012, Plaintiff filed “Plaintiff’s Motion-Response in
Opposition to ‘Eddie Glenn, CGWD SMRM/Defendant General Objections” and an “Affidavit of Robert

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Thomas Irvin.” (Docket Entries 59, 60).1 On February 1, 2012, Defendants’ filed a reply memorandum
in support of their pending motion for summary judgment. (Docket Entry 66-1). On February 2, 2012,
the Magistrate Judge issued an Order stating that he would consider Defendants’ reply (Docket Entry
66-1) and that there should “be no more filings on this issue until the Magistrate Judge issues a report
and recommendation[.]” (Docket Entry 69). While the Plaintiff seems to have ignored this order by
filing another response on February 7, 2012 (Docket Entry 72), the Magistrate Judge will give him the
benefit of the doubt and consider said response in making this report and recommendation.
II. STANDARD OF REVIEW
Summary judgment is appropriate if there is “no genuine issue as to any material fact” and “the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The main inquiry is “whether
the evidence presents a sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-52 (1986). After sufficient time for discovery and upon motion, Fed. R. Civ. P. 56(c) mandates
summary judgment 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 (1986).
The moving party must show there is “no genuine issue as to any material fact,” and for this
reason, the material presented must be viewed in a “light most favorable to the opposing party.” Adickes
v. S. H. Kress & Co., 398 U.S. 144, 157 (1970). In order to survive summary judgment, the non-moving
party “must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S.

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While Plaintiff’s motion in opposition (Docket Entry 59) only specified Eddie Glenn, his
affidavit (Docket Entry 60) does make reference to the affidavits of the other two Defendants,
Brandy Jarrell and Defendants’ statement of undisputed facts.

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at 250; Fed. R. Civ. P. 56(e). Thus, even if the nonmovant produces some evidence, the production will
not be sufficient to defeat summary judgment so long as no reasonable jury could reach a finding on that
issue in favor of the non-moving party. Anderson, 477 U.S. at 248.
The non-moving party “may not rely merely on allegations or denials in its own pleading; rather,
its response must . . . set out specific facts showing a genuine issue for trial.” Fed. R. Civ. P. 56(e)(2).
If the non-moving party fails to do so, then summary judgment, if appropriate, should be granted for the
moving party. Id. Still, “a party is never required to respond to a motion for summary judgment in order
to prevail since the burden of establishing the nonexistence of a material factual dispute always rests with
the movant.” Smith v. Hudson, 600 F.2d 60, 64 (6th Cir. 1979). The movant retains the burden of
establishing that “the moving party is entitled to judgment as a matter of law,” even if the non-moving
party fails to respond. Fed. R. Civ. P. 56(c).
III. LEGAL ANALYSIS
As a preliminary matter, the Magistrate Judge has given comprehensive consideration to the
voluminous filings by both parties and believes there is no genuine issue of material fact in dispute.
The Defendants’ correctly point out that Plaintiff failed to satisfy his procedural burden pursuant to Local
Rule 56.01(c), which requires a specific response to each fact set forth in Defendants’ statement of
undisputed material facts that accompanied their motion to dismiss. (Docket Entry 53). According to
Local Rule 56.01(g), such failure to respond “shall indicate that the asserted facts are not disputed for
purposes of summary judgment.” Noting Plaintiff’s pro se status, however, the Magistrate Judge will
not hold him to these rigid technical standards. Nonetheless, even when taking Plaintiff’s various
responses as procedurally-sound attempts to dispute Defendants’ version of the facts, the Magistrate
Judge does not believe there to be any genuine issue as to material fact. The disputes Plaintiff does

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assert pertain to immaterial matters like the status of his water service (Docket Entry 60, ¶ 3-4), the
location of Officer Bailey during Mr. Glenn’s inspection of the meter (Id. ¶ 13) and the number of
CGWD employees who inspected the meter (Id. ¶ 35).
In short, even when generously construing the inconsistencies between Defendants’ statement
of facts and Plaintiff’s disorganized and sometimes incoherent factual allegations, there is no material
fact at issue that could affect the reasons why summary judgment should be granted in this case.
A.

Defendants’ Actions Did Not Violate Plaintiff’s Fourth Amendment Rights.
Plaintiff’s sole claim in this case involves Defendants’ alleged violation of the Fourth

Amendment, which provides that “the right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be violated.” U.S.C.A. Const. Amend.
IV. Plaintiff’s capacity to claim Fourth Amendment protection “depends not upon a property right in
the invaded place but upon whether [he] . . . has a legitimate expectation of privacy in the invaded
space.” United States v. Gooch, 499 F.3d 596, 600 (6th Cir. 2007) (quoting Rakas v. Illinois, 439 U.S.
128, 143 (1978)). “A person has an expectation of privacy if he has a subjective expectation of privacy,
and if society is prepared to recognize that expectation as objectively reasonable.” United States v.
Dillard, 438 F.3d 675, 682 (6th Cir. 2006) (citing Katz v. United States, 389 U.S. 347, 361 (1967)).
Among the “number of factors” the Sixth Circuit considers when analyzing whether a person’s
subjective expectation of privacy is objectively reasonable are “his proprietary or possessory interest in
the place to be searched or the item to be seized [and] whether he had a right to exclude others from the
place in question[.]” Dillard, 438 F.3d at 682 (citing United States v. King, 227 F.3d 732, 744 (6th Cir.
2000)).

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The Magistrate Judge does not believe Plaintiff had a reasonable expectation of privacy in the
water meter box and/or water meter (collectively, “water meter”). Plaintiff’s application for water
service, which he filled out and signed, seems to be at odds with any subjective expectation of privacy
he now claims. (Docket Entry 54-1). The single-page application contains five numbered paragraphs,
one of which states in its entirety: “I permit authorized Department agents free access to my premises
for the purposes of inspecting, reading, repairing or removing Department property.” Id. In effect,
Plaintiff expressly agreed to permit Defendant Glenn, a Service and Meter Reading Manager for CGWD
whose responsibilities include inspecting water meters, to inspect the water meter at Plaintiff’s residence,
which was owned and maintained by the City of Clarksville. (Docket Entry 55, p. 1; City of Clarksville
Code of Ordinances “Code,” § 13-305).
Plaintiff’s subjective thoughts aside, the Magistrate Judge believes that any expectation of
privacy in the water meter at issue would not be objectively reasonable. The City of Clarksville Code
of Ordinances states that (1) all water meters within city limits are owned, serviced and maintained by
the city and (2) the city has a right to inspect the meters and properties to which it supplies water. (Code,
§§ 13-305 and 307). These provisions clearly indicate that Plaintiff had no proprietary or possessory
interest in the water meter and had no right to exclude CGWD agents (like Defendant Glenn) from
inspecting it.2 As such, the Magistrate Judge believes that any expectation of privacy Plaintiff attached
to the water mater in his yard is not objectively reasonable. The Magistrate Judge also notes that
Plaintiff’s disagreement over the status of his water service is immaterial for purposes of this case.

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The Magistrate Judge notes that Plaintiff disputes Defendant Glenn’s testimony that a
CGWD meter repairman accompanied him on the inspection of the water meter. (Docket Entry 60,
p. 7). Whether Defendant Glenn was alone or accompanied by another CGWD employee is clearly
immaterial to the analysis here.

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(Docket Entry 60, p. 2). As Defendants’ pointed out, both parties agree as to the material fact that water
meter #73154 is the property of the CGWD. (Docket Entry 66-1, p. 4; Docket Entry 58, p. 4).
As to Defendants Bailey and Pew, none of their actions at Plaintiff’s residence can reasonably
be construed as violating his Fourth Amendment rights. Defendants Bailey and Pew reported to
Plaintiff’s residence pursuant to a police dispatch directing them to ensure safety during the CGWD
inspection. (Docket Entries 56, 57). Defendants Bailey and Pew were present in a “peacemaking”
capacity and they did not inspect the water meter.3 Id. The Magistrate Judge notes that, although
Defendants Bailey and Pew maintain they stood at the edge of the street by their vehicles, Plaintiff
contends that he saw Defendant Bailey “standing in [the] driveway holding the gate open[.]” (Docket
Entry 60, p. 3). The Magistrate Judge agrees with Defendants’ position that, under the circumstances,
Plaintiff did not even have a reasonable expectation of privacy in his driveway.4 In his latest filing,
Plaintiff further disputes Defendants’ assertion that neither Bailey nor Pew entered Plaintiff’s fenced-in
yard “because all [Defendants] there were trying to get evidence that Plaintiff was stealing water[.]”
(Docket Entry 72, p. 4). The Magistrate Judge does not give credence to these allegations, which are not

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Plaintiff disputes that Defendant Bailey did not inspect the water meter and/or yard,
reasoning that “there is no way Plaintiff’s yard was not included in a mental inspection[.]” (Docket
Entry 60, p. 4). The Magistrate Judge does not consider Plaintiff’s unsubstantiated theories about
Defendant Bailey’s mental processes to be material in this case.
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See United States v. Manning, No. 1:06-00010, 2007 WL 1656223, *8 (M.D. Tenn. June 7,
2007) (citing United States v. Hatfield, 333 F.3d 1189, 1194 (6th Cir. 2003)(“an owner does not have
a reasonable expectation of privacy and . . . police observations made from the driveway do not
constitute a search”) and United States v. Reyes, 283 F.3d 446, 465 (2d Cir. 2002)(“driveways that
are readily accessible to visitors are not entitled to the same Fourth Amendment protections as are the
interiors of defendants’ houses”)); see also United States v. Moffitt, 233 F. App’x 409, 412 (5th Cir.
2007) (“Moffitt might have subjectively manifested his expectation of privacy by posting ‘no
trespassing’ signs, but with a driveway open to neighbors and solicitors, it is not an expectation that
society is prepared to accept as legitimate.”).

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sworn to and inconsistent with Plaintiff’s previous filings.5 Moreover, in addition to Plaintiff’s failure
to comply with Local Rule 56.01, his latest attempt to dispute Defendants’ statement of facts is
immaterial. In short, the Magistrate Judge believes that Defendants Bailey and Pew took no action that
could have amounted to a violation of Plaintiff’s Fourth Amendment rights.
B.

Alternatively, Defendants Would Be Entitled to Qualified Immunity
Even when assuming arguendo that Plaintiff presents colorable Fourth Amendment claims, the

Magistrate Judge believes that summary judgment is warranted because Defendants are entitled to
qualified immunity. “The doctrine of 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.’” Pearson v. Callahan, 555 U.S. 223, 231
(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Once a defendant asserts qualified
immunity, “the plaintiff bears the burden of demonstrating that the [defendant] is not entitled to that
defense.” Hayden v. Green, 640 F.3d 150, 153 (6th Cir. 2011) (citing Moldowan v. City of Warren, 578
F.3d 351, 375 (6th Cir 2009)). “Determinations of qualified immunity require the Court to answer two
questions: (1) whether the [defendant] violated a constitutional right, and (2) whether that right was
clearly established in light of the specific context of the case.” Brown v. City of Franklin, No: 3-101146, 2011 WL 2971092, at *2 (M.D. Tenn. July 20, 2011) (citing Hayden, 640 F.3d at 153). The
District Court may exercise its discretion in deciding which of these two prongs should be addressed first
in light of the case facts. Pearson, 555 U.S. at 236. If no constitutional right has been violated, there
is no need for further inquiry concerning qualified immunity. If such a violation did occur, however, the

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Plaintiff’s latest attempt to dispute Defendants’ whereabouts is inconsistent with his
previous claims, such as his express agreement that Defendant Pew never inspected the water meter
nor entered the yard. (Docket Entry 60, ¶ ¶ 38, 39; Docket Entry 56, p. 2).

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“dispositive inquiry in determining whether a right is clearly established is whether it would be clear to
a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier, 533, U.S.
202. Put differently, if reasonable officials could disagree about the issue, then immunity should be
recognized. Armstrong v. City of Melvindale, 432 F.3d 695, 701 (6th Cir. 2006) (citing Malley v. Briggs,
475 U.S. 335, 341 (1986).
Turning to the facts in this case, the Magistrate Judge believes that all Defendants are afforded
qualified immunity. On one hand, the Magistrate Judge already explained (supra in section III.A) that
Defendants’ actions did not violate Plaintiff’s Fourth Amendment rights. On the other hand, even
assuming arguendo that Plaintiff did suffer a constitutional violation, the Magistrate Judge believes that
reasonable officers could disagree about whether Defendants’ conduct was unlawful. As to Defendant
Glenn, a reasonable CGWD Service and Meter Reading Manager could think it lawful to enter Plaintiff’s
yard in order to complete the job of reading and inspecting the water meter located there. As referenced
above, the reasonableness in such thinking is rooted in the express language in Defendant Glenn’s job
description; Plaintiff’s application for water service; and the City of Clarksville Code of Ordinances.
Given these circumstances, it is entirely reasonable for Defendant Glenn to access Plaintiff’s yard–a
necessary action in performing his job. As to Defendants Bailey and Pew, reasonable police officers
would think it lawful to respond to a dispatch that directed them to present themselves at a residence in
a peacemaking capacity. The general rule is that mere presence at the scene of the search, without direct
involvement in it, does not subject an officer to liability. Ghandi v. Police Department of the City of
Detriot, 747 F.2d 338, 352 (6h Cir. 1984) (noting that police officers acted within the scope of their
qualified immunity when “[t]heir only function was to insure the integrity of the search by having
uniformed officers visible on the scene.”)

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In short, the Magistrate Judge believes the Defendants’ are entitled to qualified immunity and
Plaintiff’s claims must be dismissed. Even viewing the facts in a light most favorable to Plaintiff, the
Magistrate Judge believes that Defendants are entitled to judgment as a matter of law because the
material facts do not show that any action by Defendants violated the Plaintiff’s Fourth Amendment
rights. Alternatively, Defendants are entitled to qualified immunity because, even assuming their actions
did violate Plaintiff’s constitutional rights, reasonable officials could disagree as to whether Defendants’
conduct was unlawful in the situations they encountered. Plaintiff has not provided any facts to satisfy
his burden of demonstrating that Defendants’ are not entitled to qualified immunity. As such, the
entirety of Plaintiff’s action must be dismissed as a matter of law.
IV. CONCLUSION
In light of the foregoing, the Magistrate Judge RECOMMENDS that Defendants’ Motion for
Summary Judgment (Docket Entry 51) be GRANTED and all of Plaintiff’s claims DISMISSED.
Any party has fourteen (14) days from receipt of this Report and Recommendation in which to file any
written objection to it with the District Court. Any party opposing said objections shall have fourteen (14) days
from receipt of any objections filed in which to file any responses to said objections. Failure to file specific
objections within fourteen (14) days of receipt of this Report and Recommendation can constitute a waiver of
further appeal of this Recommendation. Thomas v. Arn, 474 U.S. 140 (1985); Cowherd v. Million, 380 F.3d 909,
912 (6th Cir. 2004) (en banc).

ENTERED this 21st day of February, 2012.
/S/ Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

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