DEBRAVANT v. ALL AMERICAN QUALITY FOODS et al, No. 4:2020cv00133 - Document 11 (M.D. Ga. 2020)
Court Description: ORDER granting 5 Motion to Dismiss for Failure to State a Claim. The claims against Sheriff Donna Tompkins and the Columbus Consolidated Government are dismissed. Ordered by US DISTRICT JUDGE CLAY D LAND on 12/07/2020 (CCL)
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DEBRAVANT v. ALL AMERICAN QUALITY FOODS et al Doc. 11 Case 4:20-cv-00133-CDL Document 11 Filed 12/07/20 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION AUGUST DEBRAVANT, * Plaintiff, * vs. * ALL AMERICAN QUALITY FOODS, DONNA TOMPKINS, JOHN DOE, and COLUMBUS CONSOLIDATED GOVERNMENT, * CASE NO. 4:20-CV-133 (CDL) * * Defendants. * O R D E R An employee accompanied asked by August an of All off-duty Debravant, American Muscogee who was Quality County Foods, Sheriff’s shopping at one while deputy, of All American’s Food Depot stores with his service dog, to leave the store because pets were prohibited inside the store. Debravant alleges that his ejection from the store violated Title III of the Americans With Disabilities Act (“ADA”), 42 U.S.C. §§ 12181 to 12189. Debravant brings claims against All American Quality Foods, Muscogee County Sheriff Donna Tompkins, and the Columbus Consolidated Government (“CCG”). Tompkins motion to dismiss the claims against them. and CCG filed a As discussed below, the motion (ECF No. 5) is granted. Dockets.Justia.com Case 4:20-cv-00133-CDL Document 11 Filed 12/07/20 Page 2 of 7 MOTION TO DISMISS STANDARD “To survive a motion to dismiss” under Federal Rule of Civil Procedure 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The complaint must include sufficient factual allegations “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. In other words, the factual allegations must “raise a reasonable expectation that discovery will reveal evidence of” the plaintiff’s claims. Id. at 556. But “Rule 12(b)(6) does not permit dismissal of a well-pleaded complaint simply because ‘it strikes a savvy judge that actual proof of those facts is improbable.’” Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007) (quoting Twombly, 550 U.S. at 556). FACTUAL ALLEGATIONS Debravant and his dog Pooh Pooh went grocery shopping at the Food Depot on May 23, 2018. A Food Depot employee, accompanied by “an off-duty Sheriff from the Muscogee County Sheriff’s because department,” pets were not asked Debravant allowed. Compl. to leave ¶ 10, ECF the No. store 1-2. Debravant told the Food Depot employee and the deputy that Pooh Pooh was a “service dog that he often used for companionship 2 Case 4:20-cv-00133-CDL Document 11 Filed 12/07/20 Page 3 of 7 after losing his wife.” the deputy Debravant removed Id. ¶ 11. Debravant claims that as The Food Depot employee and and a Pooh result, humiliation, stress, and embarrassment. Pooh from he the suffered store. public Debravant asserts that Pooh Pooh was a service animal within the meaning of the ADA. DISCUSSION Tompkins and CCG interpret Debravant’s Complaint to assert the following claims against them: (1) claim under Title III of the ADA, (2) state law claims against CCG and Tompkins in her official capacity for negligence, negligent training, and intentional infliction of emotional distress, and (3) state law claims against Tompkins in her individual capacity for negligence, negligent training, and intentional infliction of emotional distress. claims. “John Tompkins and CCG move to dismiss all these They also ask the Court to dismiss any claims against Doe,” the unidentified off-duty deputy. The Court addresses each claim in turn. I. Claim Under Title III of the ADA Title III of the ADA prohibits discrimination “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases accommodation.” 42 to), or U.S.C. operates § 3 a 12182(a) place of (emphasis public added). Case 4:20-cv-00133-CDL Document 11 Filed 12/07/20 Page 4 of 7 Debravant does not allege that CCG or Tompkins owned, leased, or operated the Food Depot. Accordingly, under the plain language of the statute, Debravant may not pursue Title III ADA claims against CCG or Tompkins, even if he did adequately allege that he is an individual with a disability and unlawfully denied him access to its store. that Food Depot This claim against Tompkins and CCG is dismissed. II. Claims Against CCG and Tompkins in her Official Capacity Debravant asserts state law claims against CCG and Tompkins in her official capacity for negligence, negligent hiring, and intentional infliction of emotional distress. CCG and Tompkins argue that these claims are barred by sovereign immunity. The Georgia Constitution extends sovereign immunity “to the state and all of its departments and agencies.” § 2, ¶ IX(e). This sovereign sheriffs like Tompkins. 484 (Ga. 1994). Ga. Const. art. I, immunity also covers county Gilbert v. Richardson, 452 S.E.2d 476, And it extends to counties. Id. Under Georgia law, the tort liability of CCG, a consolidation of the former governments of Muscogee County and the City of Columbus, is the same as Columbus, tort 349 liability S.E.2d applicable 740, 741-42 to (Ga. counties. 1986) Bowen (upholding v. the amendment to the Columbus charter stating that tort liability “of the consolidated government applicable to counties). shall be the tort liability Debravant did not allege any facts to 4 Case 4:20-cv-00133-CDL Document 11 Filed 12/07/20 Page 5 of 7 suggest that CCG or the Muscogee County Sheriff waived sovereign immunity for Accordingly, claims like sovereign the ones immunity Debravant bars asserts Debravant’s here. state law claims against CCG and Tompkins in her official capacity, and those claims are dismissed. III. Claims Against Tompkins in her Individual Capacity Debravant brings state law claims against Tompkins in her individual capacity for negligence, negligent intentional infliction of emotional distress. hiring, and He asserts that Tompkins did not adequately supervise or train the unidentified off-duty deputy who helped the Food Depot Debravant and Pooh Pooh from the store. employee Tompkins argues that she is entitled to official immunity on these claims. agrees. Georgia law enforcement official immunity on tort officers claims remove are against The Court entitled them for to their discretionary acts unless they acted “with actual malice or with actual intent to cause injury.” Kidd v. Coates, 518 S.E.2d 124, 125 (Ga. 1999) (quoting Ga. Const. Art. 1, § 2, ¶ IX(d)). “The phrase ‘actual intent to cause injury’ has been defined in a tort context to mean ‘an actual intent to cause harm to the plaintiff, resulting not in merely the an claimed intent to injury.’ do ” the Id. act (quoting Boatmen’s Bank, 782 S.W.2d 117, 121 (Mo. App. 1989)). 5 purportedly Frame v. Case 4:20-cv-00133-CDL Document 11 Filed 12/07/20 Page 6 of 7 Here, Debravant’s state law claims against Tompkins are for inadequate training and supervision. These functions are discretionary. Russell v. Barrett, 673 S.E.2d 623, 629 (Ga. Ct. App. 2009) (finding that operation of a sheriff’s department, including the training discretionary function). and supervision of deputies, is a Debravant did not allege any facts to support a plausible claim that Tompkins acted with actual malice or actual intent to injure him when she trained and supervised the unidentified off-duty deputy. Accordingly, Tompkins is entitled to official immunity on the individual capacity state law claims against her. IV. Claims Against John Doe Finally, Debravant asserts claims against “John Doe,” an “unidentified off duty member of the Sheriff Office” who was working at Food Depot on May 23, 2018. Compl. 1, ECF No. 1-2. In a footnote, CCG and Tompkins argue that the claims against “John Doe” should be dismissed because, in general, “fictitiousparty pleading is not permitted in federal court.” v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010). limited exception: when the “plaintiff’s Richardson There is a description of the defendant is so specific” that the person can be identified for service. Id. Here, Debravant contends that his description of “John Doe” is sufficient because he alleges that “John Doe” is the off-duty deputy who was working at Food Depot on May 23, 6 Case 4:20-cv-00133-CDL Document 11 Filed 12/07/20 Page 7 of 7 2018. to Thus, the identity of this deputy should not be difficult ascertain. Although discovery commenced in August 2020, Debravant has not sought leave to amend his Complaint to add “John Doe” as a party using his real name. If Debravant does not, within fourteen days of the date of this Order, seek leave to amend his Complaint to substitute the real name for “John Doe,” his claims against “John Doe” will be dismissed. CONCLUSION The motion to dismiss filed by Tompkins and CCG (ECF No. 5) is granted. All claims against Tompkins and CCG are dismissed. The claims against All American Quality Foods/Food Depot remain pending. IT IS SO ORDERED, this 7th day of December, 2020. s/Clay D. Land CLAY D. LAND U.S. DISTRICT COURT JUDGE MIDDLE DISTRICT OF GEORGIA 7
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