The opinion of the court was delivered by: R. Allan Edgar United States District Judge
Plaintiffs Joe Duncan, Loretta Duncan, Chris Jackson, Debbie Jo Duncan, and Johnny Grooms bring this civil rights action against Defendants Marion County Sheriff Ronnie Burnett, in his individual capacity, and Chief of Police for the City of South Pittsburg, James Jackson, in his individual capacity. This Court previously dismissed defendants Marion County, Tennessee and the City of South Pittsburg, Tennessee. [Court Doc. No. 40]. This Court has further dismissed the Plaintiffs' claims against the Federal Bureau of Investigation ("FBI") without prejudice. [Court Doc. No. 12]. This Court has also dismissed claims against the Defendants under 42 U.S.C. § 1981 and has dismissed various state law claims for lack of jurisdiction. See [Court Doc. No. 40]. The remaining claims challenge the constitutionality of a search conducted at the residence of Joe and Loretta Duncan on December 26, 2002. Plaintiffs bring claims for violation of their Fourth and Fourteenth Amendment rights to the U.S. Constitution pursuant to 42 U.S.C. § 1983 ("Section 1983"). Plaintiffs further have a claim of trespass remaining against Chief Jackson and Sheriff Burnett.
Defendants Jackson and Burnett initially appealed this Court's partial denial of their summary judgment motions on qualified immunity to the Sixth Circuit. [Court Doc. No. 47]. Defendant Jackson subsequently moved this Court to expand the record to include deposition testimony not previously submitted to this Court. [Court Doc. No. 51]. This Court denied the motion without prejudice pending the Sixth Circuit's remand to this Court for the purpose of hearing Defendant Jackson's motion. [Court Doc. No. 53]. The Sixth Circuit has now remanded this action to this Court for the limited purpose of allowing Defendants to file a motion. Defendants' appeals to the Sixth Circuit remain in abeyance pending this Court's ruling.
Chief Jackson and Sheriff Burnett now move this Court to expand the record and to be allowed to file a reply brief in reply to Plaintiffs' opposition to Chief Jackson and Sheriff Burnett's motions for summary judgment. In addition, pursuant to Fed. R. Civ. P. 60(b), Chief Jackson and Sheriff Burnett move this Court for relief from this Court's order denying their motion for summary judgment in part. [Court Doc. Nos. 56, 57-1]. Plaintiffs have failed to file responses in a timely manner pursuant to Local Rule 7.1(a).
I. Defendants' Motion to Expand the Record
Chief Jackson and Sheriff Burnett have requested this Court to review the full depositions of Mr. Joe Duncan, Ms. Loretta Duncan, and Mr. Chris Jackson, as well as the full deposition of Sheriff Burnett and allow such additional evidence to be made a part of the record in this case. In the interest of having a complete record for the Court of Appeals and in deciding the Defendants' motion for relief from judgment, the Court agrees to include these additional complete depositions as part of the record in this action. Therefore, the Court will GRANT Chief Jackson's and Sheriff Burnett's motions to expand the record.
Chief Jackson and Sheriff Burnett contend that this Court should disregard the affidavits previously filed by Loretta Duncan, Joe Duncan, and Chris Jackson in this action because their prior deposition testimony contradicts the affidavits they filed in support of their opposition to Defendants' summary judgment motions. However, this Court has reviewed the complete depositions submitted by Chief Jackson and Sheriff Burnett and concludes that they do not clearly contradict Plaintiffs' affidavits as much as Chief Jackson and Sheriff Burnett suggest. To the extent that Plaintiffs' affidavits do contradict their depositions, this Court will disregard such affidavit testimony. See Reid v. Sears, Roebuck and Co., 790 F.2d 453, 460 (6th Cir. 1986) (citing Biechele v. Cedar Point, Inc., 747 F.2d 209, 215 (6th Cir. 1984)).
The Court has previously summarized the material facts in dispute in its memorandum opinion regarding the Defendants' motions for summary judgment. [Court Doc. No. 39]. Therefore, the Court will summarize only the facts relevant to this motion.
The parties agree that on December 26, 2002 the FBI requested the back-up assistance of Sheriff Burnett, the Marion County Police Department, Chief Jackson, and the South Pittsburg Police Department in undertaking a search of the Duncan residence. The FBI informed Sheriff Burnett and Chief Jackson that it had received information that a suspect wanted in connection with a bank robbery in North Georgia might be located at the Duncan residence. [Court Doc. No. 21-3, Affidavit of Paul F. Healy ("Healy Aff."), ¶ 4]. FBI Special Agent Paul Healy considered the individual to be armed and dangerous. Id. at ¶¶ 2, 6.The defendants do not allege that they had a valid search warrant to search the property.
The complete depositions of Loretta Duncan, Joe Duncan, and Chris Jackson help to explain the Plaintiffs' version of the facts. Ms. Duncan walked into her kitchen on the evening of December 26, 2002 and, in her words, found a "man standing there in black with a gun pointed at me telling me halt or I will shoot." [Court Doc. No. 56, Deposition of Loretta Duncan ("L. Duncan Dep."), p. 18]. The man stood in the doorway, and Ms. Duncan asserts that the following events transpired:
He asked if there was anyone else in the house. I said, yes. He said, get them in here. I got everyone from the living room into the kitchen. Another man dressed in black came into my home and searched my home. When that man was finished searching my home, he told the man that was holding all the women and kids that were in the house at the time at gun point that all was clear. He walked out the door. That's when the man says, I am--and I don't remember his name and he pulled down a little velcro patch over a badge and he said, with the FBI. That's when he identified himself.
Id. at 19. Ms. Duncan admitted that she knew Chief Jackson and that he was not the man standing in the doorway with a gun. Id. at 27. She did not know whether he was the second man who entered and searched the house. Id. at 28. She further testified that she did not recall having any contact or conversation with Chief Jackson during the incident. Id. As she explained, "I don't recall even seeing Chief Jackson. He may have been the man that walked through, I don't know. If he was, then he never said anything to me." Id. She also testified that she never saw or had any contact with Sheriff Burnett during the incident. Id. at 39-40. At no time during her deposition did Ms. Duncan testify that she consented to the search of her home.
Ms. Duncan's affidavit states that along with FBI agents and other law enforcement officers, Chief Jackson entered her home with a weapon drawn. [Court Doc. No. 33, Affidavit of Loretta Duncan ("L. Duncan Aff."), ¶ 2]. However, since this assertion contradicts her deposition testimony regarding not recalling any contact with Chief Jackson, the Court will disregard this assertion, as well as any of Ms. Duncan's affidavit assertions regarding Chief Jackson's alleged activities in her home.
The parties agree that Mr. Joe Duncan was in the garage with his brother and Plaintiff Chris Jackson during the entirety of the incident. See [Court Doc. No. 56, Deposition of Joe Duncan ("J. Duncan Dep."), p. 45]. Mr. Duncan's brother saw someone peeking into a window of the garage and "[t]hen some guy took his foot and opened the door and he was dressed in solid black and had a machine gun in his hand." Id. at 46. Mr. Duncan was unable to identify the man who eventually indicated that he was looking for a bank robber. Id. at 46-47. The man told Mr. Duncan that he was "assisting Captain Jackson." Id. at 47-48. At some point Sheriff Burnett appeared in the garage. Id. at 50-51. Mr. Duncan asked Sheriff Burnett what was going on, and Sheriff Burnett asked him who was in the garage. Id. at 51. Mr. Duncan responded that his brother and Mr. Chris Jackson were the only other individuals in the garage. Id. Mr. Duncan described the events that followed:
[Sheriff Burnett] walked up to me and he lifted my coat up and looked underneath my jacket. He felt of the back of my pants. I asked him, I said, Bo, what are you doing? He said, I was just looking around. He proceeded to walk through the garage and looked in the cars, under the cars, walked to the bathroom, looked in the bathroom. There is a little door to the right inside the bathroom. He opened it and there was an air compressor sitting in there. He shut it. Then he proceeded--I asked him, I said, Bo, are you searching my place? He said, no, I'm just looking around.
Id. at 52. Mr. Duncan further alleges that Sheriff Burnett "searched me more or less to see if I had a weapon on me." Id. at 53. When Mr. Duncan asked Sheriff Burnett if he had a search warrant, Sheriff Burnett responded, "I'm just here assisting Captain Jackson and these guys here." Id. Mr. Duncan testified that Chief Jackson never came into the garage. Id. at 56. When the officers were leaving the property, Mr. Duncan saw Chief Jackson "standing directly under my street light between my house and the garage." Id. at 58. Mr. Duncan further alleges that he saw Chief Jackson carrying a "state of the art weapon" that resembled a machine gun. Id. at 61. The FBI agents left the garage and "stood there in the gate right under my street light and [were] talking to Chief Jackson." Id. at 79. Mr. Duncan never spoke with Chief Jackson during the incident on December 26, 2002. Id. at 100-01.
To the extent that Mr. Duncan alleges in his affidavit that Chief Jackson searched his property, the Court will disregard such testimony because Mr. Duncan's deposition makes clear that he only observed Chief Jackson standing between his house and his garage talking to some of the FBI agents. Mr. Duncan's affidavit testimony regarding Sheriff Burnett's activities is consistent with his deposition testimony, so the Court will not disregard this testimony.
Mr. Chris Jackson's testimony corresponds with Mr. Duncan's testimony regarding the events that transpired in the garage. See [Court Doc. No. 56, Deposition of Chris Jackson ("C. Jackson Dep."), pp.15-26]. According to Mr. Jackson, the FBI agent in the doorway "never quit pointing the gun" during the incident. Id. at 16. Mr. Jackson described how Sheriff Burnett entered the garage and touched Mr. Duncan by lifting up his jacket and putting his hand around behind Mr. Duncan's belt. Id. at 17. Mr. Jackson further described how Sheriff Burnett looked around Mr. Duncan's garage, looked in his car, checked the bathroom, and opened the door to the room holding the air compressor. Id. Mr. Jackson also recalled that Sheriff Burnett indicated that he was "assisting Captain Jackson." Id. at 20. Mr. Jackson further testified that the law enforcement officers would not let them out of the garage during the incident which lasted approximately half an hour. Id. at 22-23. Mr. Jackson never saw Chief Jackson during the incident. Id. at 24-25. To the extent that Mr. Jackson's affidavit alleges that he observed Chief Jackson enter the garage or search Mr. Duncan's property, this Court will disregard such allegations as contradicting Mr. Jackson's assertion in his deposition that he did not see Chief Jackson during the incident.
Nowhere in the deposition testimony or the affidavits presented by the Plaintiffs do Plaintiffs admit that they gave consent to any law enforcement officer to search the house, the garage, or the ...