United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE
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
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.).
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. (Id.). He told the officers that
they were at the Residence to perform property maintenance,
grass cutting, and an inspection. (Id.). Logan and
the Carrolls reiterated to Defendants Allison, Higgins, and
Smith that the Residence was supposed to be
vacant. (Id. at 18). Allison, Higgins,
and Smith relayed this information to Defendant Hallman.
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.).
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.
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. (Id.).
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.).
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.).
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. (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.
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
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.
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.
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.).
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.
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
Motion to Deem Requests for Admission as Admitted 3
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.
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).
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
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/ ...