Hall v. Flournoy, No. 18-13436

• Decision Date: 17 September 2020
• Docket Number: No. 18-13436
• Citation: 975 F.3d 1269
• Parties: Rayvie HALL, Plaintiff - Appellee, v. Kimberly FLOURNOY, sued in her individual capacity, Defendant - Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

975 F.3d 1269

Rayvie HALL, Plaintiff - Appellee,

v.Kimberly FLOURNOY, sued in her individual capacity, Defendant - Appellant.

No. 18-13436

United States Court of Appeals, Eleventh Circuit.

September 17, 2020

Gary Bunch, Gary Bunch PC, Carrollton, GA, for Plaintiff-Appellee.

Timothy Joseph Buckley, III, Taylor Wayne Hensel, Buckley Brown, PC, Atlanta, GA, for Defendant-Appellant.

Before BRANCH and MARCUS, Circuit Judges, and UNGARO,^* District Judge.

MARCUS, Circuit Judge:

Rayvie Hall was arrested after marijuana was found on his property. He now brings claims under 42 U.S.C. § 1983, alleging, among other things, false arrest and malicious prosecution, against Kimberly Flournoy, a county sheriff's deputy. The premise of Hall's argument is that Flournoy, or one of her law enforcement colleagues, planted the marijuana they found on his property. Flournoy moved for summary judgment, which the district court denied, rejecting her affirmative defense of qualified immunity. The court determined that there were material issues of fact in dispute, and, therefore, the case should be presented to a jury. Flournoy now pursues an interlocutory appeal of the district court's qualified immunity ruling. Because Flournoy does not raise a legal question on appeal and only seeks review of the factual sufficiency of the district court's determination that there is a genuine dispute as to whether the marijuana evidence was planted, we conclude that we lack jurisdiction to hear Flournoy's appeal at this time.

I.

The relevant facts, construed in favor of Hall, the non-moving party, are these. Hall purchased property in Meriwether County, Georgia, on April 17, 2015. Rodriguez Favors had been selling marijuana and squatting on the property before Hall bought it. Hall obtained a Writ of Possession on May 14, 2015 from the Meriwether County Magistrate Court. The judgment granting the Writ of Possession read:

After hearing evidence, and the Court having determined that the Plaintiff is entitled to the issuance of a Writ of Possession in the above-styled matter;

IT IS HEREBY ORDERED AND ADJUDGED that a Writ of Possession issue placing plaintiff in peaceful and quiet possession of those premises known as 40 GILBERT CIRCLE, LUTHERSVILLE, GA 30251; provided, however, issuance of the Writ of Possession be, and is hereby stayed for a period of seven (7) days from the date of this Judgment, as required by O.C.G.A. § 44-7-55.

After obtaining the writ, Hall engaged the sheriff to deliver an eviction notice. Hall also told Favors he could not return to the property, and Hall claims that Favors obeyed his ban.

Sometime after obtaining the writ, the existing building on the property burned down. Hall then built an "accessory building" on the land, designed to be his "man cave." Inside, there was a television, pool table, stereo, table, and a refrigerator with beer, wine, and other drinks. Hall said that he invited his family to the building for "cookouts," but he "did not allow anyone" in the building when he was not present; he "restricted" the number of people who visited the building; he "did not allow strangers" into the building, only relatives and close friends; and usually less than five people at a time were with Hall in the accessory building. However, Hall did not detail precisely how he restricted access to the premises.

Sometime in August 2015, Colonel Byron Hadley of the Meriwether County Sheriff's Department received an anonymous tip that illegal drugs and alcohol were being sold out of Hall's building. He passed this tip along to deputy sheriff Flournoy. Flournoy arranged for a paid confidential informant ("CI") to purchase illegal drugs from persons in the building. She had used the CI three or four times previously and considered him reliable.¹ On August 20, Flournoy executed the sting with the CI. As a precaution, Flournoy first searched the CI and his vehicle, gave him a marked bill for the purchase, and followed him to Hall's property. The CI later returned to Flournoy with marijuana, claiming he purchased it from Favors in Hall's accessory building. The CI was then paid $40 in cash, as was typical for a buy of this type.

Hall strongly denies that the CI purchased marijuana in his building, and asserts that Favors had not been present on his property for the entirety of August 2015 -- nor, he claims, since the new accessory building was erected. Flournoy admitted in her deposition that she had never seen Favors on the property herself, nor had she ever seen Favors at all. Favors was never arrested or charged in connection with the sting, and the marked bill was not recovered.

After the controlled buy, Flournoy obtained a search warrant for the premises. The warrant identified only "Rodriguez Dekota Favors" by name, but listed an address corresponding to Hall's building. Flournoy and four other officers executed the warrant six days later and found a small amount (less than one ounce) of marijuana in a plastic bag, as well as rolling papers and a grinder. It is unclear who found the marijuana, or where it was found; Flournoy claims that law enforcement officers Brian Hammock and Jeremy Blount searched for and located the drugs, but she did not identify which one made the discovery, or if it was both simultaneously. Nor did Flournoy specify where exactly the marijuana was found, only saying that some was in a grinder and some was in a plastic bag. It does not appear that there were separate rooms within the accessory building; it was an open space. While Flournoy conceded that she was "in charge of writing the search warrant and [its] execution," she said she was not in charge of the search, which was conducted by Hammock and Blount.

Hall and his daughter waited outside while the search of the accessory building took place. After the search concluded, Hall denied owning the marijuana, but told Flournoy that he "would accept responsibility to prevent [his] daughter from being arrested." Flournoy proceeded to arrest Hall and a court date was set for May 24, 2016. Notably, Flournoy did not appear in court and the charge was dismissed for want of prosecution.

Hall then brought this civil rights suit in the United States District Court for the Northern District of Georgia, on October 7, 2016, raising four claims under 42 U.S.C. § 1983 : (1) an illegal search, (2) the use of excessive force, (3) false arrest, and (4) malicious prosecution. He also brought a state law claim of trespass.

After discovery, Flournoy moved for summary judgment on all of the claims. Relevant to this appeal, Flournoy argued that the search uncovered marijuana and paraphernalia; that Hall admitted the marijuana belonged to him; and that Hall had no evidence to support his assertion that Favors never returned to the property after eviction. Flournoy claimed she had at least arguable probable cause for Hall's arrest because Hall accepted responsibility for the marijuana. In the alternative, she argued that Hall had "constructive possession" of the marijuana because it was found on his property, which would support arguable probable cause as well.

The district court granted Flournoy's motion for summary judgment on the illegal search, excessive force, and state law trespass claims. However, the district court rejected Flournoy's qualified immunity defense and denied summary judgment on Hall's false arrest and malicious prosecution claims, finding that there was a genuine issue of material fact about whether Flournoy planted the marijuana in Hall's accessory building. In support, the district court first pointed to the court-ordered Writ of Possession evicting Favors from Hall's property and Hall's sworn statement that he had told Favors not to return to his property, combined with Hall's statement that he did not allow anyone into the accessory building without being present. The court also referenced Hall's testimony that there were no drugs or paraphernalia in his building; that he told Flournoy that the marijuana was not his; and that any confession he made was only to "take the blame" to "prevent his daughter from being arrested." And the district court relied on Hall's affirmative testimony that access to outsiders was severely restricted; thus, Hall argued, because the marijuana and paraphernalia were not his, they must have been planted.

Taken together, the district court concluded that a reasonable jury could believe Hall's story about how the marijuana appeared in his accessory room, in part because Flournoy never "substantively" responded to Hall's claim that she had planted the evidence. If Hall was right, Flournoy would indisputably be ineligible for qualified immunity, because probable cause could not be found. Therefore, the district court said, there was a genuine issue of material fact as to whether the evidence was planted, and denied summary judgment on these two claims. Flournoy appeals from that ruling.

II.

First, we are required to explore whether we have jurisdiction to entertain this interlocutory appeal before we may proceed to the merits. See Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 (1869) ("Without jurisdiction the court cannot proceed at all in any cause."). Because this appeal comes before us at a preliminary stage, and because Flournoy raises no issue other than the sufficiency of the evidence, we lack the power to hear her appeal now.

"The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." U.S. Const. art. III, § 1. Pursuant to its constitutional authority, Congress has granted us jurisdiction generally to review "all final decisions of the district courts." 28 U.S.C. § 1291 ; Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981) (emphasis added). Conversely, as a court of limited jurisdiction, we are generally barred from entertaining appeals of non-final orders because we have...