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Hopson v. City of Birmingham

United States District Court, N.D. Alabama, Southern Division

November 28, 2017

MICHAEL HOPSON, Plaintiff,
v.
CITY OF BIRMINGHAM, ALABAMA, et al., Defendants.

          MEMORANDUM OPINION

          R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE

         This case is before the court on (1) the Motion for Summary Judgment filed by Defendants City of Birmingham, A.C. Roper, Henry Higgins, Chad Hallman, Bryan Smith, and Michael Allison (Doc. # 64), (2) Plaintiff's Motion to Have Admission Deemed Admitted (Doc. # 66), and (3) Defendants' Amended Objection to Plaintiff's Motion to Deem Admitted and in the Alternative Motion to Withdraw and/or Amend Admissions Responses and Accept as Timely Submitted (Doc. # 69). The motions have been briefed and are under submission. (Docs. # 64-1, 66, 68, 71). After careful review, and for the reasons explained below, Plaintiff's motion to deem certain requests for admission to be admitted is due to be granted, Defendants' motion to withdraw or amend the responses to those requests for admission is due to be denied without prejudice for purposes of the summary judgment proceedings, and Defendants' motion for summary judgment is due to be granted.

         I. Factual Background[1]

         This case arises from a rather unusual chain of events that concluded with the burglary of Plaintiff's residence. On June 17, 2013, Defendants Henry Higgins, Chad Hallman, Bryan Smith, and Michael Allison (collectively referred to as the “officers”) responded to a reported burglary in progress at 1041 Northwood Drive in Birmingham, Alabama (hereinafter the “Residence”). (Doc. # 64-2 at 10). Defendants Higgins, Hallman, Smith, and Allison were all police officers for the City of Birmingham Police Department. (Id. at 8, 16, 24, 32). A dispatcher directed the officers to the Residence at approximately 8:20 a.m. on June 17th. (Doc. # 67-1 at 4). The dispatcher informed the officers that an individual at the residence, Scottie Carroll, had seen someone inside the Residence, had reported the Residence as foreclosed property, and had explained that no one was supposed to be inside the Residence. (Doc. # 64-2 at 10, 18, 26, 34). Scottie Carroll told the dispatcher that he would be inside of a Ford F-150. (Doc. # 67-1 at 1). He reported that another vehicle, a red Chevy Avalanche, was parked in the driveway. (Id.).

         When the officers arrived at the Residence, they spoke with Scottie Carroll, Kristina Carroll, and Edward Logan. (Doc. # 64-2 at 10, 18, 26, 34). Logan and the Carrolls reported that they were at the Residence on behalf of a property management company, H & T Properties, Inc. (Id.). Scottie Carroll presented a work order document to the officers.[2] (Id.). He told the officers that they were at the Residence to perform property maintenance, grass cutting, and an inspection.[3] (Id.). Logan and the Carrolls reiterated to Defendants Allison, Higgins, and Smith that the Residence was supposed to be vacant.[4] (Id. at 18). Allison, Higgins, and Smith relayed this information to Defendant Hallman. (Id.).

         Scottie Carroll provided the officers paperwork indicating that maintenance was supposed to be performed at the Residence. (Id. at 11, 19, 27, 35). A work order in the Rule 56 record states that Wells Fargo instructed H & T Properties to recut the Residence's lawn. (Doc. # 67-2). The work order identifies Wells Fargo as the mortgage company for the Residence. (Id.). It directs H & T Properties to perform the lawn work “on or near” June 14, 2013 and states that employees “must go inside” the Residence and inspect it. (Id.). After reviewing the work order, the officers instructed Carroll to call the property management company to confirm that the Residence was owned by Wells Fargo and was supposed to be vacant. (Doc. # 64-2 at 11, 27, 35). Scottie Carroll called Alan Hauck, who he identified as the owner of H & T Properties. (Id. at 11, 19, 27, 35). Carroll spoke with Hauck. (Id.).

         The Rule 56 record contains conflicting evidence on whether Hauck spoke with the officers during that call. On the one hand, Defendants Higgins, Hallman, Smith, and Allison all aver that Hauck confirmed the Residence's vacancy status with them by phone and stated that Logan and the Carrolls were agents of H & T Properties. (Id. at 11, 19, 27, 35). Defendants Higgins, Smith, and Allison also recall that Hauck authorized entering the Residence by force, if necessary. (Id. at 11, 27, 35). On the other hand, Defendants Smith and Hallman testified during their depositions that they did not recall speaking with Hauck on June 17th. (Docs. # 67-4 at 33; 67-5 at 24-25, 34). Indeed, neither Smith nor Hallman could recall which officer spoke to Hauck. (See id.). Given the conflicting evidence about Hauck's call, the court determines, solely for purposes of summary judgment, that Hauck did not speak with Defendants Higgins, Hallman, Smith, or Allison before they entered the Residence.

         After Scottie Carroll's call to Hauck, Kristina Carroll knocked on a door at the Residence and received no response. (Doc. # 64-2 at 11, 19, 27, 35). She attempted to unlock doors at the Residence with keys in her possession but could not open any of the doors. (Id.). Scottie Carroll also attempted to unlock doors at the Residence without success. (Id.). He told the officers at the scene “that his supervisor had said to force entry if necessary.” (Id.). Defendants Higgins, Hallman, Smith, and Allison called their supervisor, Sergeant Cristopher Hays. (Id.). They informed Hays that they would forcibly enter the Residence because a burglary suspect potentially was inside.[5] (Id.).

         After Hays agreed to the forced entry, Defendant Hallman forced open the Residence's rear door. (Id. at 19). Hallman, Higgins, and Allison entered the garage and observed a boat, motorcycle, and four-wheeler. (Id. at 11, 19, 35). They asked Scottie Carroll again whether the Residence was supposed to be vacant, and Carroll suggested that the previous owner likely had returned to the Residence as a squatter. (Id.). The officers asked Carroll to reconfirm the Residence's vacancy status with Hauck, and in turn Hauck reaffirmed that the Residence was supposed to be vacant. (Id. at 11-12, 19-20, 35-36). The officers' affidavits do not indicate that any of them personally spoke with Hauck when he reaffirmed the Residence's vacancy status. (See Docs. # 64-2 at 12, 19-20, 35-36; 67-3 at 6; 67-5 at 29-30). (But see Doc. # 67-3 at 4) (recounting that officers spoke with a supervisor for the property management company after entering the Residence and finding a sparsely furnished interior). Hallman, Higgins, and Allison also asked a dispatcher to run the tags on the vehicles in the garage. (Doc. # 64-2 at 12, 20, 36). A dispatcher informed them that Plaintiff owned one vehicle and Ursula Hopson owned a second vehicle. (Id.). Moreover, the dispatcher informed them that the vehicles were registered at a different address than the Residence. (Id.).

         Thereafter, Defendants Hallman, Higgins, and Allison entered the house through an unlocked interior garage door. (Id.). They let Defendant Smith into the house through the front door. (Id. at 27). The four officers searched the Residence but found no one inside. (Id. at 12, 20, 27, 36). They observed that the Residence was sparsely furnished and had no refrigerator inside. (Id. at 12, 20, 27-28, 36). Defendant Higgins reported a cooler full of ice and drinks in the kitchen. (Doc. # 67-3 at 5-6). And, according to Defendant Hallman's deposition testimony, another officer found a small rifle on the premises. (Doc. # 67-5 at 37). The officers exited the Residence and told Scottie Carroll what they had found in the Residence. (Doc. # 64-2 at 12, 20, 28, 36). Carroll expressed surprise when the officers informed him that the electricity was on at the Residence, and he told someone in a phone conversation that the door would have to be repaired. (Id.).

         Plaintiff's burglar alarm at the Residence went off when the officers entered it. (See Doc. # 64-3 at 45) (pages 22-24 of Vickie Young's deposition). The City of Birmingham Police Department's dispatch unit received a call from ADT Security about the alarm at approximately 8:44 a.m. on June 17, 2013.[6] (Docs. # 66 at 11; 71 at 5). Defendants concede that ADT Security provided the dispatch unit with Plaintiff's name during the call about that alarm. (Id.).

         While the officers stood outside the Residence, Louis Whitlow approached Defendant Allison and said that the Residence had been sold to “a guy I know [who] works as U.S. Steel.” (Doc. # 64-2 at 36). Whitlow recounted that the Residence's owner hunted with him. (Id.). Allison asked Whitlow if he could get in contact with the owner, but Whitlow said he could not after looking at his cell phone. (Id.). Allison told Whitlow that the property management workers had paperwork to justify their presence at the Residence. (Id.). Whitlow then stated that the red truck parked in the driveway belonged to the Residence's owner, but Allison retorted that the truck was registered to a different address. (Id.). Ultimately, Whitlow “became agitated and walked away.” (Id.).

         Scottie Carroll told the officers that he would inspect the interior of the Residence and repair the door. (Id. at 12, 20, 28, 36). He assured them that he would be at the Residence if any further information was needed. (Id.).

         Following the forced entry, Hays called Hauck and left a voicemail message. (Doc. # 67-6 at 31-32). Hays received a call from a representative for a Wells Fargo contractor. (Id. at 32). That individual reported to Hays that the Residence was owned by Wells Fargo and should have been vacant. (Id.).

         At 11:15 a.m. on June 17, 2013, Plaintiff called the City of Birmingham Police Department and reported that his back door had been kicked in. (Doc. # 64-2 at 50). Defendants Higgins, Hallman, Smith, and Allison were called back to the Residence for a reported burglary. (Id. at 12, 20, 28, 36-37). Hays also travelled to the Residence. (Id. at 12, 20, 28, 37). Plaintiff told the officers that he owned the Residence and had just moved into it. (Id.). Plaintiff reported that several items had been taken from the Residence, including a safe with $30, 000, an Xbox and Xbox games, clothing, a camcorder, a ring, a watch, a gold necklace, a gas can, an edge trimmer, an electric chainsaw, and a weed eater. (Id.).

         Defendant Hallman called Scottie Carroll and directed Logan and the Carrolls to return to the Residence. (Id. at 13, 20-21, 28, 37). When Defendant Smith began to pat down Logan, Logan spontaneously said that he had a ring and a watch that his wife had given him. (Id. at 13, 21, 28-29, 37). Plaintiff described the ring and watch in Logan's possession without seeing them. (Id. at 13, 21, 29, 37). The officers found a gas can at the scene and returned it to Plaintiff. (Id.). They discovered the gold necklace, edge trimmer, chainsaw, and weed eater in another vehicle that Logan and the Carrolls had gone to after leaving the Residence. (Id.). The officers took the Xbox, Xbox games, and tennis shoes as evidence of the burglary. (Id.).

         On June 18, 2013, Samantha Nichols, an employee of National Fields, contacted Hays and informed him that Wells Fargo mistakenly told National Fields to stop working at another address when Wells Fargo should have stopped work at the Residence. (Id. at 64). Because of this error, “National Fields and H & T Properties both thought the [Residence] was vacant and anyone inside the residence was there illegally.” (Id.). According to Nichols, this error led Hauck to permit a forced entry into the Residence. (Id.). In August 2014, Scottie Carroll pled guilty to third-degree theft of property in Jefferson County Circuit Court and agreed to pay $30, 000 in restitution. (Doc. # 64-3 at 33).

         II. Motion to Deem Requests for Admission as Admitted 3

         Plaintiff moves for the court to deem seven of the Requests for Admission he sent to Defendants Higgins, Hallman, Smith, Allison, and the City of Birmingham as admitted because they were served on January 28, 2017, and were not answered until March 29, 2017. (Doc. # 66 at 16-17). Most significantly, Plaintiff claims that Defendants allowed discovery to close and submitted their motion for summary judgment before they served answers to the admission requests. (Id. at 17). Plaintiff argues that he would be prejudiced if the court did not deem the requests for admission to be admitted because defense witnesses have testified that they cannot recall many of the facts at issue in this case. (Id. at 19).

         Defendants respond that the court should deem their responses to be timely because their defense of the merits would be jeopardized by the admissions Plaintiff seeks. (Doc. # 68 at 1-2). They summarily argue that Plaintiff will not be prejudiced if the court permits their late responses to the requests for admission to stand. (Id. at 2). They ask the court to accept their responses as if they were timely filed. (Doc. # 69).

         Plaintiff asks the court to deem the following seven requests for admission as admitted:

9. That Officers of the Birmingham Police Department did not independently verify the validity of the work order presented by Scottie Carroll and/or another individual present upon their initial arrival to the Plaintiff's Residence.
10. That Officers of the Birmingham Police Department did not independently communicate directly or indirectly with anyone regarding ownership or occupancy of the Plaintiff's Residence.
11. That, upon Officers of the Birmingham Police Department entry into Plaintiff's Residence, the security system of the Plaintiff's Residence sounded its alarm siren.
12. That, upon Officers of the Birmingham Police Department entry into Plaintiff's Residence and sounding of the alarm siren, the Police Officers deactivated, caused to be deactivated or approved deactivation of the alarm siren of the Plaintiff's Residence.
13. That, upon Officers of the Birmingham Police Department entry into Plaintiff's Residence and sounding of the alarm siren, the Police Officers suppressed, caused to be suppressed or approved suppression/ ...

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