Gregory Jack Almond, et al. v. Kevin Walker

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13405
Non-Argument Calendar
____________________
GREGORY JACK ALMOND,
TERESA ROBERTS ALMOND,
Plaintiffs-Appellees,
versus
KEVIN WALKER,
Deputy Sheriff, in his individual capacity,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Alabama
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2 Opinion of the Court 22-13405
D.C. Docket No. 3:19-cv-00175-RAH-KFP
____________________
Before J ORDAN, BRANCH , and GRANT, Circuit Judges.
PER CURIAM:
After police entered Gregory and Teresa Almond’s home in
search of drugs, the Almonds sued. They brought many claims
against many defendants, but only a narrow part of one claim is
before this Court: Officer Kevin Walker’s appeal of the denial of
summary judgment for a claim alleging that he violated the
Almonds’ Fourth Amendment rights. We affirm the district court’s
denial of summary judgment.
I.
On January 31, 2018, Randolph County Deputy Sheriff
Nathaniel Morrow went to the Almonds’ home to serve civil
papers.1 He claimed to have smelled unsmoked marijuana, and he
relayed that information to members of the Randolph County
Narcotics Unit, including Walker.
The Narcotics Unit then sought a search warrant to enter
the Almonds’ home. None of the members of the Narcotics Unit
claimed to have obtained a written search warrant prior to
1 Because we write only for the parties’ benefit, we describe only those
portions of the facts and procedural history that are necessary to resolve this
appeal and assume the parties’ basic familiarity with the undisputed elements
of the qualified immunity analysis.
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22-13405 Opinion of the Court 3
searching the Almonds’ home. Instead, the officers testified that
Walker said he obtained a telephonic search warrant from
Randolph County District Judge Amy Newsome. Walker himself
testified that Judge Newsome said he had enough for a search
warrant and that from “past experiences” he thought he had a
telephonic search warrant, but that he did not specifically
remember her stating that she was issuing him a search warrant.
In a deposition, Judge Newsome said she did not recall this phone
call, but she acknowledged that it’s possible that the call occurred,
and even that it’s possible that she told him that he had sufficient
probable cause to get a search warrant. That said, she emphatically
denied having issued Walker a search warrant—or, for that matter,
having ever issued a telephonic search warrant. At some point,
Walker received a paper warrant from Judge Newsome, but some
documents suggest it was obtained on the day of the search, while
others suggest it was days later.
Based on what they claim to have believed was a telephonic
search warrant from Judge Newsome, the Narcotics Unit searched
the Almonds’ home. The officers found marijuana, and charges
were brought against the Almonds. These charges, however, were
ultimately dismissed on the prosecution’s motion.
The Almonds brought this lawsuit. Their now-operative
third amended complaint includes a § 1983 claim against Walker
for “Illegal Search and Seizure in Violation of the Fourth
Amendment to the United States Constitution.” Prior to discovery,
the Almonds appear to have believed that the search of their home
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4 Opinion of the Court 22-13405
was pursuant to a telephonic warrant; the “factual background”
section of their complaint alleges that “[b]ased on Deputy
Morrow’s alleged smell, a search warrant was obtained via
telephone.” Even so, they qualified this statement in the body of
their Fourth Amendment claim against Walker, which conceded
that the defendants “claim to have obtained a search warrant
telephonically prior to the raid” but also alleged that there was “no
recorded transcript of a warrant being issued” and that the
defendants had no “signed warrant or copy of any warrant at the
time of the raid.”
After discovery, Walker moved for summary judgment.
Relying on information revealed in the depositions of Judge
Newsome and the officers, the Almonds responded by explicitly
arguing for the first time that Walker never received a search
warrant. But they never moved to amend their complaint to
remove the statement that “a search warrant was obtained” or to
more explicitly allege that the search of their home was
warrantless. Walker cried foul, saying that the plaintiffs were
contradicting the allegations in their own complaint and
impermissibly seeking to amend their complaint through their
opposition to his summary judgment motion. He also argued that
he was entitled to qualified immunity either way.
As to the Almonds’ Fourth Amendment claim, the district
court denied Walker’s motion for summary judgment. It reasoned
that the Almonds’ argument that there was no warrant was
procedurally appropriate because they never changed the nature of
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22-13405 Opinion of the Court 5
their claim, and that refusing to consider evidence that arose during
discovery would be “single-sighted literalism.” On the merits, it
determined that there was a genuine issue of material fact as to
whether there was a paper warrant prior to the search, that the
existence of a telephonic warrant was not supported by the record,
that neither the good-faith reliance exception nor the exigent
circumstances exception applied, and that Walker was not entitled
to qualified immunity. Walker appealed.
II.
Because Walker’s arguments that he was entitled to
summary judgment go beyond the sufficiency of the evidence, we
have interlocutory jurisdiction to review the district court’s denial
of qualified immunity. See English v. City of Gainesville, 72 F.4th
1151, 1155–56 (11th Cir. 2023). We review orders denying qualified
immunity at summary judgment de novo, construing all facts in
favor of the non-moving party. Ireland v. Prummell, 53 F.4th 1274,
1297 (11th Cir. 2022).
III.
As before the district court, Walker makes both a procedural
and a merits argument. He first argues that the district court erred
by considering the possibility that he may not have had a warrant
at all when the operative complaint alleged that the search was
pursuant to a procedurally defective warrant. He then argues that,
in any event, he was entitled to qualified immunity. We reject both
arguments.
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6 Opinion of the Court 22-13405
A.
We begin with Walker’s procedural argument. He does not
go so far as to argue that the Almonds are completely barred from
contradicting their operative complaint in an opposition to
summary judgment. Instead, he makes the narrower claim that
“only claims and theories of liability that are actually pleaded in the
complaint can be considered by the district courts and this Court.”
His best case is Dukes v. Deaton, 852 F.3d 1035 (11th Cir. 2017).
Dukes brought a claim against an officer under a theory of
supervisory liability for a Fourth Amendment violation primarily
committed by the officer’s subordinate. Id. at 1045–46. In her
complaint, Dukes alleged that the superior officer failed to train his
employee, but at summary judgment, she introduced a new theory
that the supervising officer also personally participated in the
violation. Id. at 1046. We held that Dukes’s attempt to rely on an
“alternative theory of supervisory liability” was “an improper
attempt to amend her complaint.” Id.
But the facts of this case are distinguishable from Dukes.
That case’s holding was an application of the longstanding
principle that a plaintiff cannot introduce a new claim in a response
to a motion for summary judgment. See, e.g., Gilmour v. Gates,
McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004). In Dukes, the
theories of liability—one based on a failure to train, and one based
on personal participation in a tort—were fundamentally different
in kind, turning on a completely different set of alleged facts.
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22-13405 Opinion of the Court 7
Accordingly, it made sense to treat the two as if they were stating
entirely distinct claims.
In contrast, we agree with the district court that the nature
of the Almonds’ claim against Walker did not fundamentally
change. The Almonds consistently alleged that Walker violated
their Fourth Amendment rights by entering their home
unreasonably. To be sure, their claim became substantially
stronger after discovery revealed a genuine dispute of material fact
about whether a warrant existed. But it did not fundamentally shift
their basic legal allegations against Walker. Indeed, the actual
count of the Fourth Amendment claim against Walker—which
does not even incorporate the background facts section—is
consistent with both a theory that Walker’s warrant was not
supported by probable cause and a theory that he had no warrant
at all. The only ground on which we could possibly justify ignoring
the evidence that there was no warrant is the stray reference to a
warrant being obtained in the background facts section of the
complaint. That goes well beyond Dukes, and we agree with the
district court that it would amount to pointless literalism. So, like
the district court, we will not close our eyes to evidence in the
record that there may not have been a warrant prior to the search.
B.
On the merits, Walker’s appellate briefing exclusively argues
that he was entitled to qualified immunity because the good-faith
reliance exception applied in light of his belief that Judge Newsome
had given him a telephonic warrant. He insists that, regardless of
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8 Opinion of the Court 22-13405
whether there was a telephonic warrant, his belief that there was
one was reasonable and in good faith.
The fundamental flaw with Walker’s argument is that it fails
to apply the summary judgment standard. Walker asserts that he
reasonably believed that he had a valid telephonic warrant. But at
this stage in the litigation, we must make all reasonable inferences
about what was said in any phone call between Walker and Judge
Newsome against Walker. Doing so, a reasonable factfinder could
make factual findings that require judgment against Walker in at
least two distinct ways.
First and most straightforwardly, a reasonable factfinder
could simply disbelieve Walker’s statement that he thought he had
a search warrant. If so, then Walker would be liable because he
knowingly entered a home without a warrant, a good-faith belief
that he had a warrant, or exigent circumstances—something that
no one contends is protected by the good-faith reliance exception
or qualified immunity. See, e.g., Hartsfield v. Lemacks, 50 F.3d 950,
954–55 (11th Cir. 1995). So on that ground alone, summary
judgment for Walker is inappropriate at this stage in the
proceedings.
Additionally, a reasonable factfinder could conclude that,
even if Walker had a good-faith belief that he had a valid warrant,
that belief was objectively unreasonable. After all, Judge Newsome
emphatically denied issuing a telephonic search warrant, Walker
himself testified that he did not recall being explicitly told he had a
warrant, and the record suggests that Walker took no steps
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22-13405 Opinion of the Court 9
resembling Alabama’s procedures for receiving a telephonic search
warrant. See Ala. R. Crim. P. 3.8(b). Indeed, Walker even says that
he may have been systematically ignorant of the proper procedures
for receiving telephonic warrants. But if that is true, a reasonable
factfinder could certainly conclude that such disregard of a basic
element of an officer’s constitutional duties was unreasonable.
In that case, then —notwithstanding his good-faith belief
that he had a valid warrant—Walker still would not be protected
by the good-faith reliance exception. Even assuming (without
deciding) that the good-faith reliance exception can ever apply when
no warrant actually exists, the exception does not apply when a
warrant is “so facially deficient” that “the executing officers cannot
reasonably presume it to be valid.” United States v. Leon, 468 U.S.
897, 923 (1984). So if the factfinder determines that, given the
discrepancies between the phone call with Judge Newsome and the
Alabama state procedures for telephonic warrants, the phone call
was so far removed from a proper telephonic warrant that no
reasonable officer could have presumed a valid warrant existed,
then Leon would bar the application of the good-faith reliance
exception, regardless of Walker’s subjective mental state.
As should go without saying, if the good-faith reliance
exception does not apply because Walker’s beliefs were objectively
unreasonable, then any “good-faith” belief Walker may have had
was legally irrelevant. Accordingly, the qualified immunity analysis
is the same if the factfinder determines that Walker unreasonably
believed that he had a warrant as if it determines that Walker did
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10 Opinion of the Court 22-13405
not believe he had a warrant at all. In both cases, it is clearly
established that an unreasonable, warrantless search of the home
without exigent circumstances violates the Fourth Amendment.
See Hartsfield, 50 F.3d at 954–55.
* * *
At this stage of the proceedings, Walker is not entitled to
qualified immunity. We AFFIRM the district court’s denial of his
motion for summary judgment.
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