Thomas v. Cobb County Sheriff's Department et al, No. 1:2006cv01883 - Document 32 (N.D. Ga. 2009)
Court Description: ORDER and OPINION DENYING 28 Motion for Interlocutory Appeal under 1292(b); DENYING 29 Motion to Stay Proceedings Pending Interlocutory Appeal Decision; and GRANTING plaintiff's alternative request for the Court to reconsider the previous ru ling dismissing plaintiff's 1981 race discrimination claims against the Cobb County defendants and VACATES that portion of the 18 Order dismissing those claims. The Court believes that the remaining claims are as follows: (1) a § 1983 cla im against the Cobb County defendants for race discrimination and retaliation in violation of § 1981; and (2) § 1981 claims for race discrimination and retaliation against Neil Warren, Samuel Olens, and William Hutson, in their individual c apacities. If this is not a correct and complete assessment of the remaining claims and parties, either party may file a statement clarifying the remaining claims and parties by FRIDAY, APRIL 17, 2009. Discovery shall being on FRIDAY, APRIL 10, 2009 , and continues for a four-month period, until FRIDAY, JULY 31, 2009. Any summary judgment motions are due on THURSDAY, AUGUST 20, 2009. Responses to summary judgment motions are due on WEDNESDAY, SEPTEMBER 9, 2009. Replies are due on WEDNESDAY, SE PTEMBER 16, 2009. If no summary judgment motions are filed, the Proposed Consolidated Pretrial Order will be due on Monday, AUGUST 31, 2009. However, if a motion for summary judgment is filed, the Proposed Consolidated Pretrial Order will be due with in 30 days of the Court's ruling on the motion for summary judgment. The Clerk is directed to submit this action by SEPTEMBER 1, 2009, if the parties have not filed a motion for summary judgment or a proposed pretrial order. Signed by Judge Julie E. Carnes on 4/8/09. (ekb)
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i IN T HE UNI TED STAT E S DI STRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANT A DI V I SION FILED j 1V cNA WRs quanta APP 4 J v 2, L ¢.IV ANTHONY B . THOMAS Plaintiff, t lleP wY Cleri- CIVIL ACTION NO . l : 06-CV - 1883 - J E C V. COBB COUNTY SHERIFF'S DEPARTMENT ; COBB COUNTY DEPARTMENT OF CORRECTIONS ; NEIL WARREN (INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS COBS COUNTY SHERIFF) ; COBB COUNTY BOARD OF COMMISSIONERS ; SAMUEL OLENS (COBB :COUNTY COMMISSION CHAIRMAN) ; COBB COUNTY, GEORGIA ; AND WILLIAM "BILL'' HUTSON . Defendants . O R D E R & O P I N I O N This case is presently before the Court on plaintiff's Motion for Interlocutory Appeal and Stay [28, 29] . The Court has reviewed , the record and the arguments of the parties and, for the reasons set out below, concludes that plaintiff's Motion for Interlocutory Appeal and Stay should be DENIED , and plaintiff's alternative request for ,the Court to reconsider its previous ruling dismissing plaintiff's j ~ 1981 race discrimination and retaliation claims against the Cobb County defendants should be GRANTED . A O 72A (Rev.81e2) . BACKGROUND This is a race discrimination case . Plaintiff worked for the Cobb County Department of Corrections (hereinafter "Department") from 199 until August 12, 2002, when the Department terminated his employment . (Am . Compl . [5] at 9[9[ 13-14 .) On August 11, 2006, plaintiff filed this action, which is based on events surrounding his employment, termination and subsequent arrest . (Compl . [1] at 9[ 1 .) In his complaint, plaintiff asserts claims against Cobb County and various Cobb County officials under 42 U .S .C . § 1981 and § 1983 for alleged constitutional . violations and race discrimination in connection with his termination and arrest . (Id . at 9[9[ 47-51, 61-67, Am . Compi . [5] at 'IT 12, 21 .) Prior to submitting their answer, defendants filed a partial motion to dismiss plaintiff's complaint . (Defs .' Partial Mot . to Dismiss [3] .) In thei.r motion, defendants argued that plaintiff's ~ 1983 claims were governed by a two-year statute of limitations . (Id . at .2-3 .) They also argued that plaintiff's § 1981 claims againstthe Cobb County defendants, which can only be enforced through § 1983, were subject to a two-year statute of limitations . (Id .) Based on the allegations in the complaint, plaintiff was terminated on August 12, 2002, and falsely arrested on August 16, 2002 . (Amended Compl . [5] at 9[9I 27-28 .) Plaintiff did not file his complaint until nearly four years later, on August 11, 2006 . (Compl . 2 AO 72A (R ev. 81 82 ) i [1] .) Thus, well as his ;defendants argued that plaintiff's § § 1983 claims, as 1981 claims againstt the Cobb County defendants, were time-barred . (Defs .' Partial Mot . to Dismiss [3] at 2 .) The Court granted defendants' motion, relying on the Eleventh Circuit's decision in 1003 Palmer v . Stewart County Sch . Dist ., (11th Gir . applies to all 2006) § 178 Fed . Appx . 999, (holding that a two'-year statute of limitations 1981 claims that must be brought under § 1983) . (Order. [I8] at 5-6 .) Plaintiff subsequently filed a motion to reconsider . (Pl . 's Mot . to Recons . [19] .) Plaintiff did not cite any intervening case law or newly discovered evidence in support of his motion . (Id .} Instead, plaintiff attempted to recast his claim against the Cobb County defendants as a malicious prosecution claim, which would not have accrued until the underlying criminal charges against plaintiff were dismissed on September 20, 2004 . (Id . and Amended Compl . [5] atl 9I 29 .) Because it was evident that plaintiff was improperly using) the motion to reconsider to assert a new theory of law, the Court denied plaintiff's motion ., (Order [26] at 4-5 .) Plaintiff has now filed a motion for interlocutory appeal as to whether the Court correctly determined that his § 1981 race discrimination claims against the Cobb County defendants are barred by the statute-of limitations . (Pl .'s Mot . for Interlocutory Appeal 3 AO 72A (Rev.8/82) [28] and [29] .1? In support of this motion, plaintiff cites the Eleventh Circuit's recent decision in Baker v . Birmingham Bd . of Ed . , 531 F .3d 1336, 1338-39 . (11th Cir . June 25, 2008) . In Baker, the Circuit Court held that a § 1981 claim against a state actor is subject to the four-year statute of limitations set forth in 28 U .S .C . § 1658, as opposed to the two-year statute of limitations that is generally applicable to § 1983 actions in Georgia . Id . The Eleventh Circuit noted its prior decision to the contrary in Palmer, but declined to follow Palmer because it was an unpublished decision . Id . at 1338 . Although the Baker decision was issued while plaintiff's motion to reconsider was pending, plaintiff failed to alert the Court to it . Nevertheless, Baker clearly provides grounds for reconsidering the Court's Order dism i ssing plaintiff's § claims against the Cobb County defendants . 1981 race discriminat i on ) See Bryan v . Murphy, 246 F . Supp . 2d 1256, 1258-59 (N .D . Ga . 2003) (Martin, J .) (noting that "an intervening development or change in controlling law" is an appropriate basis for granting a motion to reconsider) . Applying Baker, plaintiff's § 1981 race discrimination claims against the .Cobb County defendants are subject to a four-year statute of limitations, and are thus timely . Baker, 531 F .3d at 1338-39 . Accordingly, the I Plaintiff mistakenly filed the same motion twice, at docket numbers 28 and 29 . 4 AO 72A (Rev: 8/82} Court GRANTS plaintiff's request to reconsider its previous Order [18] dismissing plaintiff's race discrimination claims against the Cobb County defendants, and VACATES that portion of the Order dismissing those claims .? in light of the above ruling, the Court DENIES plaintiff's motion for an interlocutory appeal and a stay [28] and [29] . The Court previously asked the parties to file a joint statement setting forth the remaining claims and parties in this case . Having partially vacated its prior order, the Court believes that the remaining .claims are as follows : (1) a § 1983 claim against the Cobb County defendants3 for race discrimination and retaliation in violation of § 1981 ; and (2) § 1981 claims for race discrimination and retaliation against Neil Warren, Samuel Olens, and William Hutson , in their individual capacities .' If this is not a correct and Z Baker only affects the Court's analys i s of plaintiff's § 1981 claims aga i nst the Cobb County defendants . Plaintiff's § 1983 cla i ms i that are based on various alleged constitutional violations are subject to the two-year statute of limitations, and are therefore ' time-barred . 3 It is unclear who the correct Cobb County defendants are, as plaintiff has named the sheriff's department and the department of corrections, neither of which are legal entities that are subject to ~ suit or liability . See Dean v . Barber, 951 F .2d 1210, 1214 (11th Cir . ' 1992) (dismissing the plaintiff's claims against a county sheriff's department) . However, defendants have not filed a motion challenging this designation . 4 ' Plaintiff's claims aga i nst these individuals in their official See Busby v . City of Orlando, 931 F .2d 764, capacity are redundant . 5 AO 72A (Rev .8Je2) complete assessment of the remaining claims and parties, either party may file a statement clarifying the remaining claims and parties by Friday , April 17, 2009 . Discovery shalll begin on Friday, April 10, 2009 and continue for a four-month period, until Friday , judgment motions are due on Thursday , July 3 1, 2009 .E Any summary August 20 , 2009 . Responses to summary judgment motions are due on Wednesday , Replies are due on Wednesday , September 16 , Sep tembe r 9, 2009 . 2009 . If no summary judgment motions are filed, the Proposed Consolidated Pretrial Order will be due on Monday , August 31 , 2009 . However, if a motion for summary judgment is filed, the Proposed Consolidated Pretrial Order will be due within 30 days of the Court's ruling on the motion for summary judgment . The Clerk is directed to submit this action by September 1 , Tuesday , 2009 , if the parties have not filed a motion for summary judgment or a proposed pretrial order . 776 (11th Cir . 1991) (refusing to allow the plaintiff to sue both the . City and its officers in their official capacity) . 5Due to the age of the case, and the needless delays caused by plaintiff's . careless prosecution of his claims, the Court willl be disinclined to grant any extension of discovery or the dates for filing summary judgment motions and responses . 6 AO 72A (Rev.81s2) CONCLUSION For the foregoing-reasons, the Court DENIES plaintiff's Motion for Interlocutory Appeal and Stay [28] and [29], and GRANTS plaintiff's alternative request for the Court to reconsider its previous ruling dismissing plaintiff's ~ 1981 race discrimination claims against the Cobb County defendants . SO ORDERED, this ~ day of April, 2009 . C~ ~zt 'LI E E . CARNES ~HIEF UNITED STATES DISTRICT JUDGE 7 AO 72A (Aev.8182)
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