Barker v. Bay County Sheriff's Office , 632 F. App'x 537 ( 2015 )

Case: 15-10760 Date Filed: 11/19/2015 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-10760
Non-Argument Calendar
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D.C. Docket No. 5:14-cv-00102-RS-GRJ
MATTHEW BARKER,
Plaintiff-Appellant,
versus
BAY COUNTY SHERIFF'S OFFICE,
Defendant,
W. FRANK MCKEITHEN,
ROBERT LEE GARRISON,
Individually,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Florida
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(November 19, 2015)
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Before ED CARNES, Chief Judge, TJOFLAT and WILSON, Circuit Judges.
PER CURIAM:
Robert Garrison, a deputy with the Bay County Sheriff’s Department, used
Florida’s Driver and Vehicle Information Database (DAVID) to access information
about Matthew Barker. Barker sued Garrison and Garrison’s boss, Sheriff Frank
McKeithen, alleging among other things that Garrison and McKeithen violated his
rights under the federal Driver’s Privacy Protection Act (DPPA), 18 U.S.C. §2721
et seq., by accessing his information for an impermissible purpose. The district
court granted summary judgment to Garrison and McKeithen, concluding that
Barker had not raised a genuine issue of material fact as to whether Garrison’s use
of DAVID had been for a legitimate law enforcement purpose. That conclusion is
correct.
The district court summarized the facts underlying this case as follows:
[Barker] alleges that in the summer of 2012 [he] found in his
possessions certain items belonging to [ ] Garrison’s wife from when
[Barker] and M[r]s. Garrison dated nearly ten years earlier. After
[Barker] shipped the items to Mrs. Garrison, without an explanatory
note or a return address, his mother, Ms. Parcell, received a call at her
unlisted home phone directing her and [Barker] to stop contacting
Mrs. Garrison. The call was purportedly made by a local law
enforcement officer, but [Barker] and his mother believe that the
caller was [] Garrison.
Subsequent to receiving the phone call, in August 2013,
[Barker] made a public records request and determined that [ ]
Garrison had used [DAVID] to conduct inquiries regarding [Barker’s]
information six times on January 5, 2011, and January 6, 2011.
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According to [Barker], [ ] Garrison had no legitimate law enforcement
or official purpose for accessing [Barker’s] or his mother’s DAVID
information in January 2011. As support, [Barker] claims that neither
of them lived in the jurisdiction [where] Garrison worked as a law
enforcement officer.
On the contrary, [ ] Garrison alleges that on January 5, 2011,
his wife, Rhonda, contacted him while on duty to advise him that she
thought she had seen a person that looked like her former boyfriend,
[ ] Barker. Then, when she returned home, Mrs. Garrison saw a
vehicle that resembled the last vehicle she knew [Barker] to drive
parked across the yard from their home. According to [ ] Garrison,
his wife was terrified of [Barker]. Therefore, she asked him to contact
the deputy, who was on duty in the zone in which they resided, to
make a check of the neighborhood.
[ ] Garrison believed [ ] Barker was stalking or otherwise
engaging in threatening behavior toward Mrs. Garrison, so [he]
conducted an inquiry of the DAVID system on January 5, 2011 to
ascertain [Barker’s] physical description and the type of vehicle he
drove. According to [ ] Garrison, he communicated the information
obtained to the deputy on duty in the zone where the Garrisons lived
and asked that he check the area. He repeated the DAVID inquiry the
following morning, January 6, 2011, to confirm the information so it
could be provided to the zone deputy for the following shift to check
the area as well. Although the checks were completed, the presence
of [Barker] was never confirmed.
Barker v. Bay Cnty. Sheriff’s Office, No. 5:14-cv-102-RS-GRJ, 2015 WL 300431,
*1–2 (N.D. Fla. Jan. 22, 2015).
Barker alleged that Garrison violated the DPPA by accessing his personal
information for an impermissible purpose, and that McKeithen, in his official
capacity as Garrison’s boss, was vicariously liable for Garrison’s DPPA
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violations. 1 Garrison and McKeithen moved for summary judgment. In support of
the motions, Garrison submitted a sworn affidavit attesting that he had accessed
Barker’s information on DAVID for a legitimate law enforcement purpose. Barker
opposed the motions, attaching to his response a copy of Garrison’s affidavit,
records documenting Garrison’s use of DAVID to access Barker’s information,
and an unverified version of his complaint.
The district court granted summary judgment to Garrison and McKeithen. It
correctly noted that the DPPA allows the disclosure of DAVID information “[f]or
use by any government agency, including any court or law enforcement agency, in
carrying out its functions,” id. at *3 (citing 18 U.S.C. § 2721(b)(1)), and that the
DPPA puts the burden on the plaintiff to show that the defendant obtained his
personal information “for a purpose not permitted under the act,” id. at *8 (quoting
Thomas v. George, Hartz, Lundeen, Fulmer, Johnstone, King and Stevens, P.A.,
525 F.3d 1107, 1112 (11th Cir. 2008)). None of Barker’s supporting evidence, the
court explained, carried that burden or rebutted Garrison’s sworn statement about
his permissible reasons for using DAVID.
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Barker’s complaint contained two other counts not relevant to this appeal. Count II
alleged that, by accessing Barker’s information on DAVID, Garrison had violated Barker’s
privacy rights as protected by the DPPA and the Fourth Amendment. Count III alleged that
McKeithen, in his official capacity, was vicariously liable for Garrison’s alleged violations of
Barker’s privacy rights. Barker does not argue that the district court erred in granting summary
judgment to Garrison and McKeithen on either count, and “a legal claim or argument that has not
been briefed before th[is] court is deemed abandoned and its merits will not be addressed.”
Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004).
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Barker maintains that Garrison’s sworn account of events is not believable,
but he hasn’t identified evidence that would allow a reasonable jury to reach that
conclusion. His whole argument is that Garrison lied about his reasons for
accessing Barker’s DAVID profile, and that Garrison’s dishonesty is evidence that
his real reason for accessing Barker’s profile was improper. According to Barker,
a jury could reasonably infer that Garrison lied in his affidavit because a normal
person in Garrison’s shoes would not respond to a frantic call from his spouse by
pulling up information on DAVID and relaying it to the police. To adopt that
particular argument, a reasonable jury would need at least some evidence
suggesting that Garrison’s response to his wife’s call was, in fact, atypical. Barker
hasn’t provided any such evidence. He’s offered only sweeping assertions and
unsubstantiated conjecture that “most reasonable people would likely” not do what
Garrison says he did upon receiving the call from his wife. Conjecture and
conclusory statements won’t defeat a properly supported summary judgment
motion unless they’re supported by specific facts. See Paylor v. Hartford Fire Ins.
Co., 748 F.3d 1117, 1122 (11th Cir. 2014); Rodriguez v. Farrell, 280 F.3d 1341,
1352 n.20 (11th Cir. 2002). Because Barker hasn’t identified any specific facts
supported by admissible evidence showing that Garrison lied in his affidavit, he
hasn’t met his burden at summary judgment.
AFFIRMED.
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