Sharp v. City of Montgomery, Alabama (MAG+)

IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

KEITH L. SHARP, )

)

Plaintiff, )

)

v. ) CASE NO. 2:22-cv-127-RAH-SMD

)

CITY OF MONTGOMERY, )

ALABAMA, )

)

Defendant. )

ORDER

On September 16, 2024, the Magistrate Judge recommended that the

Defendant’s Motion to Dismiss, or in the Alternative, Motion for Summary Judgment

(doc. 31)1 be granted in part and denied in part. (Doc. 54 at 11.) The Defendant

filed one objection (doc. 55) to the Report and Recommendation (doc. 54).

When a party objects to a Magistrate Judge’s Report and Recommendation,

the district court must review the disputed portions de novo. 28 U.S.C. § 636(b)(1).

The district court “may accept, reject, or modify the recommended disposition;

receive further evidence; or resubmit the matter to the magistrate judge with

instructions.” Fed. R. Civ. P. 72(b)(3). De novo review requires that the district court

independently consider factual issues based on the record. Jeffrey S. ex rel. Ernest

S. v. State Bd. of Educ., 896 F.2d 507, 513 (11th Cir. 1990); see also United States

v. Gopie, 347 F. App’x 495, 499 n.1 (11th Cir. 2009). However, objections to the

Magistrate Judge’s Report and Recommendation must be sufficiently specific in

1 Even though the Defendant’s motion (doc. 31) is titled as a motion to dismiss, the Defendant

only argues the summary judgment standard. (Doc. 32 at 4–5.)

order to warrant de novo review. See Macort v. Prem, Inc., 208 F. App’x 781, 783-

85 (11th Cir. 2006). Otherwise, a Report and Recommendation is reviewed for clear

error. Id.

Here, the Defendant objects to the “Recommendation’s implied conclusion

that Plaintiff . . . presented substantial evidence that [Plaintiff] manifested a

subjective expectation of privacy in the place searched.” (Doc. 55 at 1.) But the

Defendant’s objection misses the mark. It is true that the person who asserts a Fourth

Amendment violation “has the burden of . . . establishing” that he had a reasonable

expectation of privacy, which was violated, and that the violation was unreasonable.

United States v. Bachner, 706 F.2d 1121, 1125 (11th Cir. 1983). But at the summary

judgment stage, the nonmovant still need only show a genuine dispute of material

fact to prevail. See Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990)

(explaining that a pro se litigant has the burden of “establishing that there is a

genuine issue as to a fact material to his case in order to avert summary judgment”).

The Plaintiff therefore did not need to present nor did the Recommendation find that

the Plaintiff presented substantial evidence of a subjective expectation of privacy.

(Doc. 54 at 2, 8.)

The Defendant specifically argues that the Recommendation “does not

illustrate or point to any evidence in the record that Plaintiff utilized the property /

curtilage in any way that ‘it harbored the intimate activity associated with the

sanctity of a man’s home and the privacies of life.” (Doc. 55 at 1 (emphasis added

and cleaned up) (citing United States v. Dunn, 480 U.S. 294, 300 (1987).) But this

misses the mark too.

The Magistrate Judge appropriately analyzed whether the Plaintiff had a

reasonable expectation of privacy in the backyard under the Dunn factors. (Doc. 6–

9.) The question the Dunn factors assist a court in answering is not whether the area

is used (though “use” plays a part in the analysis), it is whether an “individual

reasonably . . . expect[ed] that the area in question [would] be treated as the home

itself”—in short, whether an expectation of privacy existed. Dunn, 480 U.S. at 300

(“[T]he central component of this inquiry [is] whether the area harbors the intimate

activity associated with the sanctity of a man’s home and the privacies of life.”

(internal quotations omitted)). And after analyzing the Plaintiff’s backyard under

the four, non-exhaustive Dunn factors, the Recommendation found that, viewed in

the light most favorable to the Plaintiff, the factors weighed in favor of an existence

of an expectation of privacy within the Plaintiff’s backyard. (Doc. 54 at 8.) And the

Recommendation relies on video evidence to support its entire analysis. (Id. at 7–8;

Doc. 33-1; Def. Ex. 1-C.) After an independent review of the video evidence, the

Defendant’s objection is due to be overruled and the Recommendation adopted.

Upon an independent review of the file and upon consideration of the

Recommendation, the Defendant’s objection is overruled.

Accordingly, it is ORDERED as follows:

(1) The Recommendation of the Magistrate Judge (doc. 54) is ADOPTED;

(2) The Objection (doc. 55) is OVERRULED;

(3) The Defendant’s Motion to Dismiss, or in the Alternative, Motion for

Summary Judgment (doc. 31) is GRANTED as to the Plaintiff’s Fourteenth

Amendment procedural due process claim;

(4) The Defendant’s Motion to Dismiss, or in the Alternative, Motion for

Summary Judgment (doc. 31) is DENIED as to the Plaintiff’s Fourth Amendment

warrantless search claim; and

(5) This case will be SET FOR A JURY TRIAL on Plaintiff’s Fourth

Amendment warrantless-search claim.

DONE, on this the 8th day of October 2024.

R. AUSTIN pr JR.

UNITED STATES DISTRICT JUDGE