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                                                       [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                            No. 13-14581
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 6:11-cv-01341-GKS-GJK



EARL E. REEDER,

                                                           Plaintiff-Appellant,

                                 versus

CITY OF DAYTONA BEACH POLICE CHIEF,
Michael Chitwood, et al.,

                                                                    Defendants,

HARRY OAKLEY,
Officer,
STEVE YUNICK,
Officer,
JAMES S. THOMAS,
Officer
DENNIS THOMAS,
Sgt.,

                                                        Defendants-Appellees.
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                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                               (December 11, 2014)

Before WILLIAM PRYOR, JORDAN and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Earl Reeder appeals pro se the summary judgment against his amended

complaint of an unlawful entry to and seizure of evidence from his home by four

officers of the Police Department for the City of Dayton Beach, see 42 U.S.C.

§ 1983, and the denial of his motion for leave to file a second amended complaint.

Although the district court did not abuse its discretion when it denied Reeder’s

motion for leave to amend his complaint, the district court erred by entering

summary judgment in favor of the officers based on qualified immunity. The

district court impermissibly weighed the evidence in favor of the officers’ accounts

that they were invited into Reeder’s home and discredited Reeder’s deposition

testimony that he did not consent to the officers’ entry. Because the evidence,

viewed in the light most favorable to Reeder, establishes that the officers entered

his home in violation of the Fourth Amendment, we vacate the judgment in favor

of the officers and remand for further proceedings.




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                                I. BACKGROUND

      Reeder’s amended complaint stemmed from an encounter two years earlier

with the four police officers. The officers visited Reeder to investigate whether he

had drugged and raped a woman inside his home the previous evening. Although

the officers and Reeder agreed that he opened his front door to talk to the officers,

their stories about what then transpired differed substantially.

      Reeder’s complaint alleged that, as he opened his door, Officers Harry

Oakley and James S. Thomas rushed into his home brandishing taser guns and

demanding that Reeder relinquish the sheets on his bed. When Reeder told the two

officers to leave or produce a search warrant, they handcuffed him and placed him

in a patrol vehicle so Officer Steve Yunick and other officers could search

Reeder’s home. Twenty minutes later, Sergeant Dennis Thomas arrived on the

scene and walked quickly through Reeder’s home. Sergeant Thomas asked Reeder

to sign a form that stated he consented to the search of his home, but Reeder

refused. Reeder was charged with possessing illegal drugs and drug paraphernalia,

but those charges were later dismissed.

      During his deposition, Reeder testified that he woke to a “really loud

banging,” he ran to his kitchen after he heard the sound of glass breaking, and he

opened a window through which he saw Officers Thomas and Oakley. Reeder,

who knew Officer Thomas, agreed to open his front door to speak to the officers.


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As Reeder opened his door, he saw Officer Oakley wielding a taser gun, and

Officer Thomas rushed inside Reeder’s home and ordered him to “[p]ut [his] hands

up.” Officer Thomas inquired where the victim had slept the previous evening and

demanded that Reeder surrender his sheets. When Reeder told the officers to “get

out of [his] house” and asked them for a search warrant, Officer Oakley threatened

to shoot Reeder with a taser gun and instructed Reeder to “walk back into [his]

living room.” Because Reeder continued to protest the officers’ presence in his

home, Officer Thomas handcuffed Reeder. In the meantime, Reeder heard

something tapping on a sliding glass door in his living room and saw Officer

Yunick remove a piece of wood that was wedged in the track of the door. Officer

Thomas escorted Reeder to a patrol car, where he waited approximately 20 minutes

while officers searched his home. Reeder objected to the officers’ presence after

Sergeant Thomas arrived at the scene, and Reeder later refused the Sergeant’s offer

to “work this out and get rid of [the drug] charges” if Reeder signed a form

consenting to the search of his home. Reeder also refused to sign a consent form

when asked to do so by Officer Thomas. As Officer Thomas transported Reeder to

the police station, Officer Thomas asked Reeder about a bottle of liquor handled by

the victim, and they returned to Reeder’s house to retrieve the item from a garbage

can outside his house.




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      Reeder also testified that he did not see a crack pipe in his house before the

police arrived, but he “smell[ed]” the victim smoking crack that morning and

“kick[ed] her out.” And Reeder insisted that, during his interview at the police

station, he stated that he did not consent to the search of his home, but Officer

Thomas interrupted him with the response, “[w]e’re not here to talk about that

right now.” Reeder denied that he consented to have his mouth swabbed for

forensic testing during his interview and that a lady appeared at his home two to

three weeks later with a warrant to collect the sample. Reeder also testified that he

surrendered his clothes at the conclusion of his interview when asked to do so by

Officer Thomas.

      The officers moved for summary judgment and to strike Reeder’s deposition

as a sham. See Fed. R. Civ. P. 56(a), (h). The officers argued that they were

entitled to qualified immunity because Reeder consented to the search of his home,

and in the alternative, because exigent circumstances existed to justify their entry

without a warrant. And the officers alleged that Reeder’s deposition “inherently

contradict[ed] [his] statements [during his post-arrest interview] that he consented

to the search” of his home.

      The officers submitted a video recording of Reeder’s interview. The video

began by showing Reeder removing his pants and underwear and stacking them

neatly on the interview table. When Officer Thomas entered the room, Reeder


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stated that he took “his clothes off because [he] wanted to submit them . . . for

evidence.” Thomas allowed Reeder to narrate the events of his evening with the

victim because he had already “told [Thomas] everything in the world without

[him] asking . . . a question.” Reeder described how the victim arrived at his home

intoxicated, ingested alcohol and Xanax, and then accused him of rape when he

failed to obtain crack cocaine as she requested.

      The video showed that Reeder was aiding the officers in their investigation.

Reeder maintained “that . . . [he] had no problem when you knocked on the door

this morning, opening the door at all because [he] really want to get this resolved

and [he was] not trying to run from it.” Reeder acknowledged that he had asked

Thomas to “turn [his patrol car] around” and return to Reeder’s home, to collect “a

liquor bottle” that Reeder had disposed of in a garbage can outside his home. And

Reeder explained that he overlooked the crack pipe that was sitting on the same

table as the bottle because he was rushing to “get all [the] alcoholic stuff out” in

case his “probation officer came around.” Reeder also acknowledged that, after the

officers “told [him] why [they] were there . . . [he] said ‘take the sheets,’” and that

that there was “one [sheet that he] brought out of the room” for the officers. Reeder

reiterated, “yeah, I told you ‘take the sheets’ and here I’m offering you my boxers,

everything that I can possibly give y’all.” Reeder also consented to undergo a




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“buccal swab,” and he insisted that the officers “[could] do anything” and that he

would provide “[a]nything else [the officers] need[ed].”

      The officers submitted affidavits about their encounter with Reeder. Officers

Thomas and Oakley averred that Reeder “invited [them] to enter” his home; they

“proceeded into the living room area where [the officers] informed Mr. Reeder that

[they] were there to investigate rape allegations against him”; they saw illegal

drugs and drug paraphernalia lying in plain view in Reeder’s home; and Reeder

denied any wrongdoing and agreed to “fully cooperate in the investigation.”

Thomas stated that Oakley “requested permission . . . to search” Reeder’s home

and “Reeder consented,” and Oakley stated that “Reeder invited [the officers] to

take the bed sheets . . . that the alleged victim slept on” before consenting to a

search of his apartment. Officer Thomas also stated that Reeder agreed to sign a

consent to search form, but later he refused to do so. Officer Yunick averred that

he saw Officers Thomas and Oakley inside Reeder’s home, after which he entered

the home through a sliding glass door that had been left unlocked, and that he

learned later that Reeder had consented to the search. Sergeant Thomas stated that

he was told Reeder had consented to the search by Officer Oakley or Thomas; he

saw a crack pipe lying on a table in Reeder’s living room; and Reeder verified that

he had invited the officers to enter his home.




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      In depositions, Officers Oakley and Thomas testified that Reeder admitted

them to his home. Oakley testified that Thomas asked Reeder if they could “come

inside and talk,” he was “nervous[ly] cooperative,” and when they asked him to

relinquish the sheets on which the victim had been sleeping, he “volunteered his

clothes” and he “t[ook] [them] to the living room where [her] sheets were on the

couch.” And Oakley verified that he and Officer Thomas obtained Reeder’s

consent before entering his home. Officer Thomas testified that Reeder “invit[ed]

[them] into his house . . . , demanding [they] take the sheets . . . .” and that Reeder

was “more than happy to comply with [the] request” to enter and escorted the

officers down the hallway to the living room.

      Reeder filed a motion for leave to file a second amended complaint, which

the district court denied. See Fed. R. Civ. P. 15(a). The district court determined

that Reeder could have included his claims of false imprisonment, malicious

prosecution, and violations of state law in his amended complaint and that he failed

to give a reason to excuse filing his proposed amendment before the expiration of

the deadline for discovery. The district court also determined that the proposed

amendment would prejudice the officers, require additional discovery, and delay

the disposition of the case.

      The district court denied the officers’ motion to strike Reeder’s testimony.

Although the district court found “variations in [Reeder’s] testimony [that affected]


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[its] weight . . . as evidence,” it determined that those “inconsistencies [were] not

explicit enough to strike the deposition as a sham.” The district court explained

that it was relying on Reeder’s videotaped interview as “the best evidence.”

      The district court initially denied the officers’ motion for summary

judgment, but later the district court vacated that decision and granted the motion.

Based on Reeder’s statements that he “had no problem . . . opening the door at all”

for the officers, willingly turned over evidence, and instructed an officer to return

to his home to retrieve the bottle of liquor, and because Reeder “never hint[ed] that

he did not voluntarily consent to the officers’ entry . . . or search” and “confirm[ed]

that he consented to the search, explaining that he was willing to do anything to

clear his name,” the district court found that Reeder “consented to the [officers’]

search of his home.” The district court determined that there was “no constitutional

error in entering the house or the subsequent search” and that the officers were

entitled to qualified immunity.

      The district court also rejected what it perceived to be Reeder’s attempt to

“create an issue of fact by providing testimony (almost three years after the

incident)” to contradict the officers’ accounts of the incident and to satisfy “the

threshold required to deprive the police officers, who were trying to do their duty,

of qualified immunity.” The district court explained that it had decided to “rely on

[Reeder’s] police interview as a more accurate portrayal of the facts” because


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Reeder’s “deposition testimony . . . [was] inconsistent with his prior statements . . .

[and] [was] so self-serving that it lack[ed] credence.”

                          II. STANDARDS OF REVIEW

      We review de novo a summary judgment based on qualified immunity.

Terrell v. Smith, 668 F.3d 1244, 1249–50 (11th Cir. 2012). Summary judgment is

appropriate when there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). We are

required to interpret the evidence and draw all reasonable inferences from that

evidence in the light most favorable to the non-movant. Terrell, 668 F.3d at 1250.

                                 III. DISCUSSION

      Reeder challenges the summary judgment in favor of the officers on the

ground that a material dispute of fact exists about whether he consented to a search

of his home. Reeder also challenges the denial of his request for leave to file a

second amended complaint. We address each argument in turn.

A. The District Court Erred By Entering Summary Judgment for the Officers Based
                             on Qualified Immunity.

      The district court erred by entering summary judgment in favor of the

officers. Under the Fourth Amendment, police officers cannot enter a home

without a warrant unless they obtain the voluntary consent of the person whose

property is searched or consent from a third party who shares common authority

over the premises. Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S. Ct. 2793, 2797
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(1990). The record reveals that a genuine factual dispute exists about whether the

officers entered Reeder’s home without his consent. On the one hand, the officers

submitted affidavits and deposition testimony that Reeder invited them into his

home. On the other hand, Reeder provided deposition testimony that the officers

barged into his home, the officers disregarded his demands that they leave, and he

refused to sign a consent to search form. Summary judgment was inappropriate

because of the direct contradictions in the parties’ evidence.

      Under Reeder’s version of events, the officers were not entitled to qualified

immunity. Qualified immunity does not apply if an official violates a plaintiff’s

constitutional rights, and “[a] warrantless and nonconsensual entry into a person’s

home, and any resulting search or seizure, violates the Fourth Amendment unless it

is supported by both probable cause and exigent circumstances.” Feliciano v. City

of Miami Beach, 707 F.3d 1244, 1251 (11th Cir. 2013). The evidence, viewed in

the light most favorable to Reeder, establishes that Officers Thomas, Oakley, and

Yunick invaded and searched Reeder’s home without his consent in violation of

the Fourth Amendment. And Reeder’s deposition testimony established that

Sergeant Thomas joined the officers inside Reeder’s house after being told by

Reeder that he did not consent to the entry or search. The officers argue that they

are entitled to qualified immunity on the alternative ground that exigent

circumstances existed to justify their entry to Reeder’s home without a warrant, but


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“[w]e decline to address [that argument] here, preferring that the district court

address it in the first instance.” Beavers v. Am. Cast Iron Pipe Co., 975 F.2d 792,

800 (11th Cir. 1992).

      The district court neglected its duty to credit Reeder’s version of events. The

district court inferred that Reeder consented to the search based on his willingness

to cooperate with the officers, but we have cautioned that “it is inappropriate to

‘sanction entry into the home based upon inferred consent.’” United States v.

Gonzalez, 71 F.3d 819, 830 (11th Cir. 1996) (quoting United States v. Shaibu, 920

F.2d 1423, 1426 (9th Cir. 1990)). And while cooperation is a factor used to

determine whether consent is voluntary, see United States v. Chemaly, 741 F.2d

1346, 1352 (11th Cir. 1984), it is not dispositive in ascertaining whether consent

was given. See United States v. Hidalgo, 7 F.3d 1566, 1571 (11th Cir. 1993)

(“[C]onsent [is] not a function of acquiescence to a claim of lawful authority but

rather [must be] given freely and voluntarily.”). There is no doubt that Reeder’s

deposition testimony was inconsistent in many respects with his videotaped

statement, but the district court could not discount the deposition testimony on that

basis. “Even if a district court believes that the evidence presented by one side is of

doubtful veracity, it is not proper to grant summary judgment on the basis of

credibility choices,” Feliciano, 707 F.3d at 1252 (internal quotation marks and

citation omitted), because “credibility determinations and the weighing of evidence


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‘are jury functions, not those of a judge,’” id. (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513 (1986)). Although Reeder’s

deposition testimony that he protested the officers’ presence in his home is in

tension with his videotaped statement that he eagerly opened the door to speak to

the officers and told them to take his sheets, the district court denied the officers’

motion to strike Reeder’s deposition testimony because the burden rested with “the

jury [to] assess the credibility of [Reeder’s] testimony.” And the district court erred

by rejecting Reeder’s deposition testimony as self-serving because “that alone does

not permit [a court] to disregard [testimony] at the summary judgment stage.” Id. at

1253.

        The officers argue that Reeder’s deposition testimony was “utterly

discredited” by his videotaped statement, see Scott v. Harris, 550 U.S. 372, 380,

127 S. Ct. 1769, 1776 (2007), but we disagree. A party is entitled to have his

testimony considered unless it is “blatantly contradicted by the record, so that no

reasonable jury could believe it.” Id. In Scott, police officers produced a videotape

recording of a high speed chase involving multiple violations of traffic laws that

“directly contradicted” the plaintiff’s complaint that he was a cautious and

controlled driver whose civil rights were violated when officers rammed him to

stop his vehicle. Id. at 378–80, 127 S. Ct. at 1775–76. But the officers in this case

do not possess the same type of objective, real-time evidence of their encounter


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with Reeder at his home to establish that his deposition testimony is false. Reeder’s

videotaped statement depicts his interview with the officers after his arrest and

transportation to the police station. Reeder admits during his interview that he

welcomed the officers’ presence at his home and that he willingly identified and

relinquished all evidence that he thought would exonerate him of the allegations of

rape, but he does not state that he consented to the officers’ entry or that he

admitted them to his home. Unlike the videotape evidence in Scott, Reeder’s

videotaped statement does not unequivocally establish that he consented for the

officers to enter his home.

 B. The District Court Did Not Abuse Its Discretion By Denying Reeder’s Request
                            to Amend His Complaint.

       The district court did not abuse its discretion by refusing to allow Reeder to

amend his complaint a second time. Federal Rule of Civil Procedure 15(a)(2) states

that the district court “should freely give leave [to amend a complaint] when justice

so requires,” Fed. R. Civ. P. 15(a)(2), and those principles give the district court

leeway to deny a motion to amend when it determines that the amendment is

intended to cause undue delay or would unduly prejudice the defendant. See

Corsello v. Lincare, Inc., 428 F.3d 1008, 1014 (11th Cir. 2005). Reeder filed his

motion more than one month after the close of discovery, which had been extended

once at his request. The district court determined that the delay would prejudice the

officers’ ability to preserve evidence related to the new claims; would require
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additional discovery from the victim, Reeder, and potentially other persons; and

would delay the disposition of Reeder’s case. The district court reasonably decided

to deny Reeder’s request to further amend his complaint.

                               IV. CONCLUSION

      We AFFIRM the denial of Reeder’s motion for leave to file a second

amended complaint. We VACATE the summary judgment in favor of the officers

based on qualified immunity, and we REMAND for further proceedings.




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