Stefani v. City of Grovetown et al, No. 1:2015cv00164 - Document 26 (S.D. Ga. 2016)
Court Description: ORDER granting in part and denying in part 9 Motion to Dismiss. TheCourt dismisses Plaintiff's § 1983 claims against Defendants Powell and Wheatley and Plaintiff's state-law claims against Defendants Jones, Powell, Wheatley, and Na lley. The Court also dismisses Plaintiff's state-law claims against Grovetown for false/malicious arrest and false imprisonment. Plaintiff's § 1983 claims against Grovetown, Jones, and Nalley will proceed,as will Plaintiff's state-law claims for malicious prosecutionand negligence against Grovetown. Signed by Judge J. Randal Hall on 09/02/2016. (thb)
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Stefani v. City of Grovetown et al Doc. 26 IN THE UNITED STATES SOUTHERN DISTRICT DISTRICT COURT FOR THE OF GEORGIA AUGUSTA DIVISION CHAD STEFANI, * Plaintiff, * * CITY OF GROVETOWN, a municipality of the State of Georgia, GARY JONES, individually and in his official capacity, SCOTT WHEATLEY, individually and in his official capacity, CHRISTOPHER POWELL, individually and in his official capacity, and JONES NALLEY, individually and in his official capacity, l:15-cv-164 * * * * * * * * * * • Defendants. * ORDER Presently before the Court is Defendants' (Doc. 9.) For the reasons below, Defendants' motion to dismiss. motion to dismiss is GRANTED IN PART and DENIED IN PART. I. BACKGROUND A. Factual Allegations For purposes of Defendants' assumes the truth of the motion to dismiss, following allegations Plaintiff's Complaint and its attached exhibits. v. City of Miami, district complaint 811 F.3d 1271, 1277 court can generally consider in ruling on a motion to the Court drawn from See Hoefling (11th Cir. 2016) ("A exhibits attached to a dismiss, and if the Dockets.Justia.com allegations of the complaint about a particular exhibit conflict with the contents of the exhibit itself, the exhibit controls.") 1. February 17, On Thursday, Plaintiff Road in February reported Evans, 2015 to 17, work Georgia. at His truck remained at SI Ex. 14, white B at 38.) Belair Road. Doc. C&B until for a a.m., job the job site when his in co-worker the called and asked returned shortly after 1:00 p.m. On his way back, at around complaint with the ("GDPS"). (Id. f 18.) a.m., Washington 13, Ex. B 2015. at (Id. left C&B in a located at South Old At 12:40 p.m., Plaintiff company-owned truck, him to (Id^ 1 17, return, but, Plaintiff Ex, B at 40-42, Ex. Plaintiff picked up lunch at a Taco Bell on Belair Road in Evans, Georgia. Meanwhile, 1 Plaintiff site same white 20 7:30 on February 24, (Id^ 1 16, Ex. B at 49.) left C at 7.) Construction Compl., Around 8:00 company-owned truck approximately C&B (Am. 38.) at 12:49 Grovetown (Id. M p.m., 75-76.) Rachel Department Lucas of filed Public a Safety Her complaint alleged "that a white male driving a four door dodge ram truck with no state license tag and a broken windshield, wearing a black hat, with strawberry-blond hair and a goatee blue jacket over a red-and-green plaid shirt approached her while she was getting her children into her own vehicle." Ms. (Id^ 1 18, Ex. B at 4, 17, Ex. D.) Lucas's complaint, According to this individual asked her whether she'd like to earn extra money. (Id_^ SI 19.) She replied, "sure," and the man informed her that he wished he had children and that wanted to spend time with Lucas's children alone. (Id. He offered her $200.00 per hour with her children, that time, eight, six, and three years After receiving this alarming offer, home for the GDPS mentioned above. After where (Id. receiving Grovetown police she old. Lucas 1 19.) who were, (Id. , Ex. 21.) At Powell, an immediately left her submitted the incident report 5 20.) Lucas's chief, report, Defendant Gary created a Facebook post allegedly (Id. approximately officer with anonymous II 22-23, Ex. at D.) Jones, tip the in B at 2:06 p.m., GDPS, response 5-6, Defendant purportedly to Ex. C at Jones's 1, Ex. the concerning the incident and providing Lucas's description of the suspect. SI he (Id. Christopher received Facebook F.) an post. The tipster reportedly told Powell that Plaintiff owned a truck similar to Lucas's SI description. (Id. Scott Wheatley of the tip. by Defendant Jones that no anonymous Nalley, tip was 22.) (Id. Powell I 23.) informed A later investigation an investigator with GDPS, received by Defendant Powell revealed around 2:06 p.m. and that no tip from a female caller was received at any time. (Id. Ex. F.) There was, received around 3:00 p.m., was known to flash women. however, a tip from a male which simply claimed that (Id.) caller Plaintiff Around 2:00 p.m.,1 Powell contacted Lucas and instructed her to conduct 26.) an online Plaintiff photos of search for alleges Plaintiff plaintiff . . . ." that Plaintiff Chad Stefani. Powell "[w]ithout (Id. I 44.) any directed Lucas evidence Soon after, to (Id. to I view implicate Lucas called Powell and informed him that her search revealed a picture of Plaintiff that looked identical to the suspect. (Id. I 27.) Plaintiff alleges that Defendants knew "that this method of identification was improper, implicate best suggestive, [P]laintiff." law-enforcement prevent "tainting (IdL_ I 50.) and designed to He further alleges that practices exist which are designed victim's a mind prior to showing the 48, Georgia POST victim ... a photographic training materials, inadmissible, lineup." (Id. I to Ex. N.) Powell notified Wheatley that Lucas made an identification. (Id. GDPS I 28.) At called 3:25 the p.m., Wheatley and an Columbia County investigator with Sheriff's Department Investigative Division and spoke with administrative coordinator Michelle Carter. (Id. I 31.) The officers asked Carter for a mug shot of Plaintiff and any information the County had on him. (Id. ) Minutes later, Carter emailed a mug shot of Plaintiff to Wheatley. (Id. I 32.) Soon after, another GDPS member called 1 For clarity's sake, the Court notes that the times alleged in the Complaint appear somewhat nonsensical at first glance. These inconsistent times are actually material to Plaintiff's allegations and are derived from inconsistent timelines in exhibits B, C, and D. [Carter] on Wheatley's because GDPS's behalf software was and not requested a functioning. photo (Id. lineup I 33.) At 3:30 p.m., Defendant Nalley arrived at GDPS and was assigned as the case agent to investigate Lucas's complaint. Shortly the photo after lineup, Wheatley Jones and Carter's called Calvin about Wal-Mart in another incident Grovetown. which (Id.) discussion Morris, Columbia County Sheriff's Department. Morris may Jones Jones that Hispanic male and unrelated and that completely different. with Morris, requested a information short Jones, time photo on the informed the have and a photo called the suspect I 35.) as Morris described incidents were suspects were the After called the at the of unaware the was that I 36.) lineup, Jones suspect Jones apparently (Id. of Jones asked occurred described descriptions (Id. Plaintiff later, Wal-Mart concerning a member (Id. I 34.) having strawberry-blond hair and a goatee. informed (Id. I 29.) a concluding the call that Wheatley Carter and lineup. Carter as (Id. and told already requested I 37.) her A that, although Plaintiff had been identified as the suspect, he wanted the photo lineup sent anyway. Morris suspect (Id. I 38.) Jones then called and told him that Lucas had identified Plaintiff as after receiving received the photo lineup. Plaintiff's (Id. I 39.) mug shot before the GDPS Morris told Jones that the physical description Lucas gave in the incident report did not match Plaintiff who "is bald headed with a dark beard." (Id. I 39, Ex. B at identified Plaintiff, 32-33.) Jones Although requested that Lucas Morris had already send him the lineup so that he could show it to Lucas and "make it official." (Id. I 42, Ex. Department's B at Investigative to GDPS at 4:01 p.m. After Lucas to 54.) return to identified being the photo the as that (Id.) Plaintiff's Lucas a Sheriff's photo violation of O.C.G.A. 4:30 p.m. suspect made [his] for § 16-4-1. Defendants lineup, Lucas again. this lineup instructed (Id. II 50, immediately (Id. identification I 54.) "because photo and informed that he was Around 4:50 p.m., arrest At 7:11 p.m., lineup, photo the she had already been shown for County transmitted the GDPS building at Plaintiff a suspect." Columbia Division shown alleges The (Id^ I 43.) receiving Upon Plaintiff 35.) Nalley obtained warrants attempted (IcL child I 55, Ex. molestation in G.) Jones wrote a second Facebook post in which he updated the suspect information and included Plaintiff's mug shot. (Id. I 56.) We The post read, have identified a suspect and the complainant has made a positive ID via a photo lineup. Our investigations division has obtained three (3) [f]elony arrest warrants for the suspect for Criminal Intent Child Molestation. The suspect is identified Stefani has as Chad not been Eric Stefani taken into .... custody as of yet. The photo attached is a mug shot from Columbia County. We will have Stefani i[n] custody just as soon as we can find him and get our hands on him. His best course of action will be to surrender to the [GDPS]. bars. (Id. I 56, Jones. H.) Ex. went to GDPS We will not rest until he is behind Chief Upon and was learning arrested. of the I 57.) (Id. warrants, Plaintiff Plaintiff remained in confinement without bond from his arrest on February 17, 2015 until April 1, 2015. (IcL I 58.) 2. Wednesday, February 18, 2015 The next day, Nalley met with Brian Stefani at C&B. (Id. I They viewed surveillance video of Plaintiff's truck, 61.) which Nalley determined did not leave 4753 Washington Road between the hours of 8:23 a.m. on February 17th and 5:15 a.m. on the 18th.2 (Id. I 60.) Nalley also obtained a search warrant for Britland Gove's house. (Id. I 67.) 3. Thursday, February 19, 2015 On Thursday, February 19th, one of Plaintiff's co-workers. Nalley spoke with Josh Winyard, (Id. I 80.) He told Nalley that he could account for Plaintiff's whereabouts until 12:40 p.m. February 17th and again shortly after 1:00 p.m. (Id., Ex. on C at 8.) 4. Friday, February 20, 2015 Plaintiff's and Plaintiff's fiancée counsel retained counsel engaged on Plaintiff's behalf, private investigator Douglas 2 The Court understands paragraph 60 to allege that the video showed the truck there until 5:15 a.m. In light of Plaintiff's previous allegation that the truck remained at C&B until Plaintiff's release from confinement, presumably additional video tapes would have shown the truck remained there for weeks. Parker. (icL II 73-74.) Plaintiff's counsel and Parker obtained a copy of the receipt of Plaintiff's lunch purchased at 1:04 p.m. at the Taco Bell on Belair Road in Evans, February a video recording depicting Plaintiff paying for food at 1:04 p.m. (Id. I 76.) 17th. (Id. I 75.) Parker also Georgia on viewed Plaintiff's counsel mailed this information to Jones and the District Attorney for the Augusta Judicial Circuit at a.m. on February 20, 2015. 11:47 (IcL I 77.) 5. Tuesday, February 24, 2015 Nalley made contact with Britland Gove to execute a search warrant at the Plaintiff's residence. not recover a blue jacket, but shirt from Plaintiff's closet. (Ex. C at 9.) Nalley did collected a multi-color flannel (Id.) 6. Wednesday, February 25, 2015 As mentioned previously, all recorded phone lines voice history providing of (Id. II 68-70.) on February 17, 2015, Plaintiff's flashing Nalley reviewed in GDPS's dispatch and found only one recording of an anonymous tip. occurred at 3:03 p.m. on February 25th, women. name and (Id. I That recording and contained a male describing 68.) The Plaintiff's information provided by this "tipster" conflicted with the tip described by Powell. (Id.) The purported tip relayed by Powell featured a female tipster who matched Plaintiff's truck to the suspect's. (Compl. Ex. C at 2.) When confronted by Nalley regarding these discrepancies, explained that Powell he spoke with the male tipster first, then the female. (Id. I 69, Ex. F.) However, Nalley never discovered a recording of the female tip describing Plaintiff's truck, Ex. F.) the purported (Id. Nalley I 71, which Powell claimed to receive. informed anonymous Ex. Jones tip and of Powell's about actions Powell's I 70, concerning call to Lucas. F.) 7. March 31, 2015 - Preliminary Hearing On March 31, 2015, the Magistrate Court of Columbia County, Georgia held a preliminary hearing in the State's Plaintiff. (Id. (Id. I 82.) The Magistrate Court case against determined that the State failed to establish probable cause that Plaintiff took a "substantial (Id. 17, I 83, Ex. 2015, release, step" B toward at 51.) until April 1, the identified. actual (Id. commission Plaintiff was 2015. Exs. child of molestation. confined from February (Id^ I 58.) perpetrator I 85, of Since Plaintiff's the offense has been L, M.) B. Procedural History Plaintiff filed Grovetown, Gary on 13, October answered and his Jones, 2015. filed Christopher (Doc. a 1.) motion to Civil Procedure 12(b)(6). briefing Complaint 19), the motion (Doc. 14) Complaint to and, against Powell, On dismiss, 9, and November dismiss (Docs. Defendants 10). Scott 11th, under of Wheatley, Defendants Federal Rule of During the course of Plaintiff filed with leave of the Court a "Superseding Amended Complaint." City an Amended (Order, Doc. (Am. Compl., Doc. 20.) The Superseding violations continued due Amended to also prosecution. and an arrest unlawful false 153-72.) attorneys' alleges constitutional and search. state-law arrest, (Id. and unlawful alleges false/malicious damages an detention, Plaintiff Complaint detention, (Id. counts II of imprisonment, his 1.00-52.) negligence, and malicious He seeks compensatory and punitive fees and litigation expenses. (Id. II 186-97.) Rather than refile their motion to dismiss, Defendants asserted their motion against the Superseding Amended Complaint. (Defs.' Reply Br., Doc. 21 at 1-2.) Defendants' motion is now ripe for adjudication. II. LEGAL STANDARD Under Federal Rule of Civil Procedure must contain "a that the 8(a)(2), a complaint short and plain statement of the claim showing pleader is entitled to relief" to give the defendant fair notice of both the claim and the supporting grounds. Atl. Corp. v. Twombly, defendant's complaint Rule must "state Twombly, a 550 Rule 12(b)(6) 12(b)(6) include right to relief must 550 U.S. above at motion enough 555 to "factual the speculative claim to U.S. 544, relief 570. that is (2007). dismiss, To a allegations level," survive a plaintiff's to raise and those plausible Although a complaint on Bell its a facts face." attacked by a motion need not be buttressed by detailed factual 10 allegations, than labels elements Rule the plaintiff's pleading obligation "requires more and of a conclusions, cause 8 pleading of and action At 662, the formulaic will not 678 (2009) Id. a complaint the The than an unadorned, the- accusation." at of 555. (quoting Twombly, same time, recitation do." standard "demands more defendant-unlawfully-harmed-me 556 U.S. a Ashcroft 556 U.S. v. Iqbal, at 555). should not be dismissed for failure to state a claim "unless it appears beyond a doubt that the plaintiff can entitle him to (1957); see 2011 WL Marshall 1171, must accept construe Bd. 1174 all at true (11th Cir. (N.D. Cir. all reasonable to the plaintiff. of circumstances Gibson, Statebridge Educ. (11th as v. *2 of set Conley v. Kabir 4500050, F.2d no relief." also Cnty. prove v. Ga. Co., Sept. Marshall 1993)). facts At Hoffman-Pugh v. in 27, this in the Ramsey, would 41, 45-46 U.S. No. Cnty. alleged inferences 355 that 1:ll-cv-2747, 2011) Gas Dist., stage, the (citing the Court complaint light most 992 and favorable 312 F.3d 1222, 1225 2002) . III. DISCUSSION A. Plaintiff's § 1983 Malicious Prosecution Claim Plaintiff amendment right alleges to be that free Defendants from unreasonable fourteenth amendment due-process rights. arrested pursuant to a violated warrant, 11 his his seizures fourth and his Because Plaintiff was Complaint is properly construed as alleging a malicious prosecution claim. Carter v. Gore, Malicious 557 F. App'x 904, 906 (11th Cir. 2014). prosecution is a "violation of the Fourth Amendment and a viable constitutional tort 323 881 F.3d 872, malicious cognizable (11th prosecution Cir. claim under § 1983." 2003). under "To § Wood v. establish 1983, the Kesler, a federal plaintiff must prove a violation of his Fourth Amendment right to be free from seizures unreasonable in addition to the law tort of malicious prosecution." 1983 the malicious common criminal prosecution law tort of prosecution claim, instituted Id. the malicious elements the constituent elements include[]: continued by the defendant; (2) terminated in the damage the to plaintiff accused's accused." favor; Id. and (1) (3) (4) "Because of a present with malice and without probable cause; plaintiff common "[F]or purposes of a § prosecution or of that caused lack of probable cause is a required element to prove a § 1983 claim for malicious prosecution in existence of cause Mills, 517 exists when knowledge, F.3d the of information, 2006) 1232, 1237 facts which and he of defeats (11th the the Cir. claim." 2008). circumstances or she Constitution, has "Probable within shown, Miller v. that the suspect the reasonably Harget, 458 F.3d (internal quotations omitted). 12 has committed 1251, the Kjellsen 1259 Additionally, v. cause officers1 trustworthy would cause a prudent person to believe, circumstances offense." probable violation under the ... (11th an Cir. "[p]robable continue a prosecution, cause is required to a defendant or to at 1238 institute a prosecution." (citing Wood, The sufficiently with and Defendants plead that that, qualified immunity cause." The Kjellsen, 517 F.3d 323 F.3d at 882). individual malice not just to arrest they in because Court argue acted that without any event, they acted begins with Plaintiff probable they are with the failed cause and protected "arguable individual to by probable defendants' qualified-immunity argument. 1. Qualified Immunity and Arguable Probable Cause For qualified immunity to apply, actual Brown probable v. City Cir.2010). a of but only Huntsville, Arguable' Ala., 608 probable F.3d 724, cause." 734 (11th "The standard for arguable probable cause is whether reasonable the cause, Defendants "need not have same officer knowledge in as the same the circumstances officer in and question possessing could have reasonably believed that probable cause existed in the light of well-established (11th Cir. officers existence liable." *8 1994). to of make Eubanks "This probable 579 Jan. v. 5, cause 2015) (11th Cir. Gerwen, standard reasonable Bradley v. Tucker, (S.D. Ga. F.2d 572, law." permits mistakes without No. 40 with being 4:14-CV-165, F.3d law 13 1160 enforcement regard held to the personally 2015 WL 64944, (citing Von Stein v. 1990)). 1157, Brescher, at 904 For about qualified-immunity Defendants' investigatory Defendants arrived at knew of Powell's Defendants were Plaintiff's purposes, not aware of counsel. in the conduct, the Based stage is evidence Plaintiff's not the questions how and provided allegations, appropriate is indicative of the alleged, clearly Defendants depicts different truck Plaintiff city, different within upon watching this even suspect. deficiency Plaintiff It in is, the alleges. allegation that lunch clothes, and the suspect. It of video cause course, may now, Defendants equally render it dismiss. video that Bell driving minutes in of a a the is plausible that, officer that in Taco fifteen a reasonable which and approximately probable For at for difficulty exculpatory different video, arguable an purchasing wearing incident between Lucas have possessed by the time determining arguable probable cause during a motion to As which One alleged piece of evidence, record, the which Defendants conduct, exculpatory on has including investigatory resolving those questions. is Court Plaintiff as the suspect, alleged motion-to-dismiss the could no Plaintiff plausible not the Court must possessed evidence as was that the some exculpatory accept of longer as Plaintiff's a clear video that demonstrates the lack of probable cause.3 3 The Court emphasizes that other evidence that shows potential lack of arguable probable cause is alleged to exist. 14 the The Additionally, determination Defendants is as an have Attorney's mentioned ongoing argued office cuts so, but see Carter, above, one. that probable cause 1238. Kjellsen, 517 F.3d conduct of the the off Defendants' 557 F. the liability. at District This may be App'x at 907, but the conduct of the District Attorney's office is not presented on the record before the Court. As identification, among other plausibly it stands, and two videos alleged alleged pled that the on the false tip, suspect containing exculpatory evidence, exculpatory evidence, Defendants' cause to prosecute him. sufficiently based lacked For these same probable-cause Plaintiff arguable reasons, element has probable Plaintiff has of his malicious prosecution § 1983 claim. 2. Malice Element Defendants ^malice' not and argue that ^falsification' factual allegations." Plaintiff's of evidence (Defs.' Br., "vague are accusations mere Doc. 9 of conclusions, at 20.) The Court disagrees. The malice personal spite consideration individual S.E.2d 75, element or of in a mankind, injured." 78-79 of malicious general directed Fleming (2000). v. prosecution disregard by U-Haul Malice may of "consists the in right chance against the Co. Georgia, 541 be of inferred if: (1) Court focuses on the video only as a stark example of the difficulty of evaluating probable cause at this stage of the case. 15 defendant's disregard acts for were or plaintiff; or conscious (3) Plaintiff existence of wanton; is has Nalley, tip. (Id.) to lied to alleged that with the (Am. Compl. of the falsified the Id. truck to that, the when the truck confronted by existence of Plaintiff also plausibly alleged that, evidence connecting Plaintiff to the reckless <H 111, Ex. C at 1, Ex. F.) allegation him about a rights Powell linking Plaintiff's a plausible Powell done indifference plausibly a tip call also were from the want of probable cause. described by the victim. There (2) incident, this first without any Powell contacted Lucas and asked her to search for Plaintiff's photograph on the internet to see whether he matched her description. at 11.) of Defendants Jones and Wheatley, Lucas having seen Plaintiff's (Id., at a minimum, photo evidence tying Plaintiff to the allegation. without Ex. C were aware any other So, when Defendants claim that "Plaintiff provides no allegations plausible showing that Jones or any other falsified evidence to allegations well DPS officer secure his short. acted maliciously or arrest," they sell Plaintiff's The Court finds that Plaintiff's allegations, if proved, would satisfy this element. 3. Malicious Prosecution Claims Against Wheatley and Powell Plaintiff does Powell and Wheatley by malicious not sufficiently allege that Defendants violated Plaintiff's constitutional prosecution. Although 16 Powell and rights Wheatley contributed to Powell, particular, in the policing errors, early stages is of alleged GDPS's -investigation, to have committed did not execute that warrant, on of did Court's not review participate the in Complaint and Investigator is no Plaintiff's February allegation that Fourth Amendment Nalley's 17th therefore, or by Wheatley rights continuing DISMISSES to Plaintiff's or detain subsequent Accordingly, violated arresting him on him. 1983 based exhibits, Powell by either § and, attached investigation or the decision to detain Plaintiff. there severe they were not involved in the decision to apply for an arrest warrant, the and The claims Court, against Defendants Wheatley and Powell. 4. Claims Against Grovetown and Jones "The law is clear that a municipality cannot be held liable for the actions of its employees under § 1983 based on a theory of respondeat superior." Griffin v. 1295, 1307 (11th Cir. 2001). "[T]o impose § 1983 liability on a municipality, a plaintiff must show: rights were violated; policy that Cir. violation." 2004) . deliberate indifference to that and (3) that the policy or custom caused McDowell v. Brown, 392 F.3d 1283, 1289 (11th "A plaintiff . . . has two methods by which to establish a county's policy: promulgated (1) that his constitutional that the municipality had a custom or constituted constitutional right; the (2) City of Opa-Locka, 261 F.3d county policy identify either or (2) 17 an (1) an officially unofficial custom or practice of the county shown through final policymaker for the county." 335 F.3d 1326, 1329 (11th Cir. the Compl. S[ single incident to who, 148.) at of 10. (11th Cir. 2011)). argue that this activity Floyd Cty., Notably, Ga., was chief of the GDPS. unconstitutional (citing Craig v. a actions were directed by however, Ga., this (Am. allegation is impose liability against a municipality." 9 at of 2003). the time, Defendants acts Grech v. Clayton Cty., Plaintiff alleges that Defendants' Defendant Jones, repeated not "a sufficient (Defs.' 643 of Br., Doc. F.3d 1306, 1310 single-incident rule applies where plaintiffs attempt to establish official policy by demonstrating a custom or practice. Craig, 643 F.3d at 1311 ("A single incident of a constitutional violation is insufficient to prove a policy or custom even when the incident involves several employees of the municipality."). The law is "[a] clear that municipality may be held liable for a single act or decision of a municipal official area act of the 1573, 1577 Cty., Ala., (1997) with or 1996), U.S. 781, (citing Jett v. U.S. 701, 112, 123 737(1989); (1988) Cincinnati, 475 U.S. policymaking authority McMillian decision." (11th Cir. 520 final Johnson, v. in the 88 F.3d aff'd sub nom. McMillian v. Monroe 117 S. Ct. 1734, 138 L. Ed. 2d Dallas Independent School District, City of (plurality 469, 480 St. Louis opinion); (1986)). 18 v. Praprotnik, Pembaur v. 485 City 1 491 U.S. of At the motion to alleged that Jones subject-matter whether of constituted Plaintiff's Plaintiff subordinate dismiss stage, the final Jones' conduct. close The that the complaint's Facebook asking contacted the facts for and tips. with Columbia posted (Am. County the an is his investigation. Jones was apprised 21.) report Later, Department (Id. M the allegations incident 1 Compl. Sheriff's the photo lineup identification. directed Plaintiff's involvement for only question Jones Shortly after Lucas's complaint was received, of sufficiently policymaker Complaint. sufficiently alleged officers' demonstrate Plaintiff has 34-49.) to on Jones arrange The Complaint and attached exhibits also allege that Nalley was instructed to apply for the arrest warrant, and that Nalley kept apprised of the developments in his investigation. B at 7, Ex. exculpatory GDPS. C at evidence Construing favorable 11, to Complaint Ex. that all F.) Plaintiff's reasonable Plaintiff, see plausibly the Court also inferences that Jones Defendants' (Compl. Ex. aware of the provided to the in the F.3d Accordingly, DENIES was counsel Hoffman,312 alleges investigation of Plaintiff. litigation, Jones Jones 1222, light most 1225, directed the the at this stage of the motion to dismiss Plaintiff's § 1983 count against Grovetown. With respect argued that (Defs.' Br., Jones Doc. to Jones' also individual possessed 9 at 21.) immunity, "arguable Defendants probable cause." For the reasons explained above, 19 Plaintiff's allegations are sufficient to establish Jones' liability individually. B. Plaintiff's Unlawful Search Claim Plaintiff also alleges that Defendants violated Plaintiff's Fourth Amendment probable cause. involves a that right against "Where search or [an] alleged seizure a neutral magistrate searches seizures Fourth Amendment pursuant has and to a violation warrant, issued a warrant is without the the fact clearest indication that the officers acted in an objectively reasonable manner . . 1245 (2012). the . ." warrant Messerschmidt However, "does reasonableness." Id. v. Millender, 132 S.Ct. 1235, the fact that a neutral magistrate issued not end Rather, the the inquiry Supreme into Court has objective "recognized an exception allowing suit when it is obvious that no reasonably competent issue." officer Id. would have concluded that a warrant should "Probable cause to support a search warrant exists when the totality of the circumstances allows a conclusion that there is a fair probability of finding contraband or evidence at a particular location." 1350, 1352 (11th Cir. 1999) For the reasons United States v. Brundidge/ 170 F.3d (per curiam). explained above, Plaintiff sufficiently alleged that there was no arguable probable cause at the time Nalley However, executed the search warrant on February 24, 2015. Plaintiff did not allege that Powell and Wheatley had any connection with the decision 20 to obtain or execute the warrant. Accordingly, the Court DENIES Defendants' motion to dismiss this claim with respect to Defendants Nalley, Grovetown, and Defendants Jones and DISMISSES this claim with respect to Powell and Wheatley. C. Alleged Due-Process Violation To the extent Plaintiff asserts a due-process violation for being subject to a his argument on Geter v. Plaintiff bases 1550, 1559 (5th Cir. suggestive 1988). lineup, In Geter, that claim Fortenberry, fails. 849 F.2d an arrestee was convicted and received a life sentence, but the charges were dropped while on appeal after several witnesses identified another individual as the offender. Id. at 1552. Geter brought § 1983 claims against numerous municipalities and officers alleging that the defendants procured false evidence and admitted that evidence at trial. 432 Id. U.S. The Fifth Circuit, 98, 97 (1977), and relying on Manson v. Brathwaite, Brady v. Maryland, 373 U.S. 83 (1963), concluded that "a police officer cannot avail himself of a qualified immunity defense if he procures false identification by unlawful means or deliberately conceals exculpatory evidence, for such activity principles." Cir. 1988) plaintiff's violates Geter v. (Geter I) . clearly established Fortenberry, However, allegations the conclusory. 849 F.2d 1550, Fifth Id. remanding to allow for limited discovery, case returned on appeal and the 21 constitutional Fifth 1559 Circuit at id. (5th found 1560. After at 1560-61, Circuit held the the that Plaintiff sufficiently established law. Cir. 1989). reach to alleged Geter Fifth The v. Circuit has, 882 of F.2d however, clearly 167, 171 narrowed (5th Geter's cases that proceed to trial and where the evidence is 954, applying 970 where violated their (5th Cir. See Hernandez v. 2010) introduction concluded against that suggestive the tainted rights). no exists, at evidence from the identification is v. Carey, For process 818 F.2d 646, the reasons right where defendant is at trial have, constitutional least so concludes used long that against therefore claim based on allegations that only circuits identifications not Plaintiff as F. right as the Hensley 1987). Court suggestive evidence trial. the 397 not used at trial. (7th Cir. above, against that at 650 Geter evidence Other free-standing lineups Terrones, (distinguishing of due-process however, least violation Fortenberry, used against the defendants. App'x a cannot the suggestive no exists, the state due- at criminal a § 1983 lineup violated his due-process rights. D. Plaintiff's State-Law Claims Plaintiff (2) alleges false/malicious malicious addressing arrest; prosecution. whether Court analyzes false four law (3) false (Am. Compl. Defendants' Plaintiff's imprisonment, state and claims: malicious 22 negligence; imprisonment; II immunity claims (1) 153-185.) defenses (4) Before apply, for false/malicious prosecution. and the arrest, Georgia law distinguishes between prosecution. See generally Ferrell v. Mikula, 13 (Ga. of law Ct. App. under false 2008) . O.C.G.A. or The § malicious former is 51-7-7 and the arrest and malicious 672 S.E.2d 7, detention under process latter is detention judicial process followed by prosecution under O.C.G.A. 40. distinction Id. "The prosecution and malicious right of action Zimmerman, Perry v. "Where, 774 Brooks, as here, the 811, 332 important because other 815 S.E.2d does (Ga. 375, not.'" Ct. 377 App. (Ga. with § 51-7- y [m]alicious arrest are mutually exclusive; exists, S.E.2d is 11- if one Stephens 2015) Ct. v. (quoting App. 1985)). there has been an arrest pursuant to a warrant, the remedy depends on whether the accused was prosecuted." Id. "If after the arrest[,] the warrant is dismissed or not followed up, malicious the remedy is for carried on to a prosecution, is the exclusive remedy, not lie." 1983) . The Stephens, Here, by the McCord same But if the action is an action for malicious prosecution and an action for malicious arrest will v. Jones, 311 is true of 774 S.E.2d at 815 Plaintiff was Magistrate arrest. Court a S.E.2d claim 209, 210 for false (Ga. Ct. App. imprisonment. (2015). arrested pursuant of Columbia to County, a warrant Georgia. issued At a preliminary hearing on March 31, 2015 before the Columbia County Magistrate Court, the charges were dismissed. a "committing court" is a required element An inquiry before of a malicious prosecution claim. O.C.G.A. § 51-7-42; see Renton v. Watson, 739 23 S.E.2d 19, 23-24 committing (2013). court, prosecution. As the Plaintiff's The Court, Magistrate only therefore, five of Plaintiff's Complaint. is for is Counts Compl. 161-72.) M a malicious DISMISSES (Am. the Court addresses Defendants' claim Court four and Below, arguments concerning Plaintiff's remaining claims for malicious prosecution and negligence. 1. Official Immunity for the Individual Defendants Plaintiff's prosecution Defendants are remaining and negligence. contend sufficient immunity. state-law to that In Plaintiff overcome Specifically, the claims their failed for malicious to dismiss, motion to individual Defendants are argue allege facts Defendants' that that official Plaintiff fails to allege facts showing that they acted with "actual malice." Plaintiff offers two responses. acts in question were malice standard does the alleged acts, ministerial not apply. if proven, Plaintiff argues that the and, therefore, Plaintiff would also satisfy the the actual- contends that actual-malice standard that applies to strip immunity for discretionary acts. The Court begins with the threshold question of whether the alleged acts were ministerial or discretionary. law, the answer is clear: complaint, including discretionary S.E.2d 71, detective 74 the conduct. (Ga. Ct. investigating Defendants' Under Georgia investigation of Lucas's suggestive photo identification, See, e.g., Marshall App. 2008) (concluding that a police a case, 24 obtaining v. Browning, was search and 712 arrest warrants, and executing those warrants was acting within her discretionary authority). Given that the official immunity, performed these Marshall, acts were Plaintiff acts "with 712 S.E.2d at 74 discretionary, must allege malice or an to that intent (quotation omitted). overcome Defendants to Here, injure." Plaintiff alleges that Defendants acted with actual malice. Accordingly, the [Defendants] Court's acted maliciously prosecution, would "initial but exempt S.E.2d at inquiry for is purposes of [they] acted whether [them] ... from official not the whether tort with of actual immunity." malicious malice Stephens, that 774 815-16. In the context of official immunity, actual malice requires a deliberate intention to do wrong and denotes express malice or malice in fact. Actual malice does not include implied malice, or the reckless disregard for the rights and safety of others. A deliberate intention to do wrong such as to constitute the actual malice necessary to overcome official immunity must be the intent to cause the harm suffered by the plaintiffs. Likewise, 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, not merely an intent to do the act purportedly resulting in the claimed injury. This definition of intent contains aspects of malice, perhaps a wicked or evil motive. Selvy v. Morrison, (footnotes, 665 quotations, S.E.2d 401, and 404-05 alterations 25 (Ga. Ct. App. omitted). 2008) " [A] plaintiff evidence in of evidence, Georgia personal or The would show animus knowing Taylor v. Taylor, 29, 2015) can No. not 3:13-cv-69, finds establish that that planting for evidence on the by arrestee, of presenting manufactured perjured 2015 WL 4601166 Plaintiff's Defendants attempted malice testimony." (S.D. Ga. July 712 S.E.2d at 74)). . Plaintiff does not allege, Plaintiff toward presentation (citing Marshall, Court actual allegations, acted for instance, child him. with that molestation At most, if proven, actual malice. Defendants by, for Plaintiff framed example, alleges that Defendant Powell lied about receiving a tip matching Plaintiff's truck to the There is no intent to truck allegation, injure Plaintiff's Lucas described however, Plaintiff.4 favor, the in that her Powell Construing Complaint incident alleges lied all report. with inferences that the in Defendants conducted a faulty investigation and arrested Plaintiff without actual probable there is no order to injure five motives cause allegation or even that Plaintiff; for Defendants' arguable probable cause. Defendants arrested Plaintiff rather, conduct, the Complaint itself But in gives none of which amount to an 4 The Complaint does allege that "Defendants acted deliberately and maliciously with the intent to injure Plaintiff." (Am. Compl. 1 93.) This is a textbook example of a "formulaic recitation of a cause of action's elements," which the Supreme Court has found "will not do." Twombly, 550 U.S. at 555. 26 (Am. Compl. 1 125.)5 intent to injure Plaintiff. recklessly conduct investigations in an cases may be subject to criticism, effort to Officers who quickly close but they do not act with the actual malice necessary to strip them of official immunity. Court, therefore, state-law finds that official immunity bars claims for malicious against Defendants Jones, 2. Powell, Wheatley, and dismissed. contend that all The state Grovetown claims Georgia immunity extends and § 2, negligence and Nalley. against Constitution to the is entitled to it should provides S[ 9(a), (e) . sovereign therefore that be "sovereign state and all of its departments agencies" unless specifically waived by statute. 1, Plaintiff's Municipal Immunity Defendants immunity prosecution The and Ga. Const, art. With regard to municipalities, "there is no waiver of the sovereign immunity of municipal corporations of the state and such municipal [are] corporations immune from 5 Those reasons are as follows: 1. "The desire to close the case quickly without exerting much effort or resources"; 2. "[T]heir collective dislike of [P]laintiff due to his history"; 3. Defendant Jones's political aspirations and desire "to be seen as tough on crime"; 4. Defendant Jones's desire "to further his standing and authority relative to other city officials"; and 5. Defendant Jones's desire of him. (Am. Compl. 1 125.) 27 to increase the public's opinion liability for corporations errors in neglect damages." O.C.G.A. shall not be liable for performing their to perform or police "In this officers failure to or it in is city "Municipal perform or for judicial powers. or For unskillful they shall be regard, engaged 36-33-l(a). legislative improper their ministerial duties, 33-1 (b). § performance liable." O.C.G.A. well established police work are of § 36- that city performing a governmental function to which [the above mentioned] waiver of a city's v. sovereign Statesboro, 33-3 immunity does 653 S.E.2d 765, not 768 apply." (2007); Weaver see also City O.C.G.A. of § 36- ("A municipal corporation shall not be liable for the torts of policemen or other officers engaged in the duties imposed on them by law."); McDay v. S.E.2d 75, 77 liable for However, purchasing (Ga. Ct. App. 1992) the "[a] acts city liability issued covers an attributed can waive occurrence City of Atlanta, 420 ("The city is not vicariously to the its insurance discharge of the if sovereign the for which police "policy the defense officers."). immunity of of by insurance sovereign immunity is available, and then only to the extent of the limits of such insurance policy.'" 926 (11th Cir. 2013) Gray v. (quoting Ector, O.C.G.A. § 541 F. Appfx 920, 36-33-1(a)). "The party seeking to benefit from the waiver of sovereign immunity has the burden of proof to establish waiver . . . ." Murray v. Ga. Dept. of Transp., 644 S.E.2d 290, 293 (Ga. Ct. App. 2007). 28 Plaintiff insurance its that would governmental 1 (Compl. immunity little Circuit defendant conducted by by city this claim pursuant § therefore O.C.G.A. between 36-33-3 36-33-1(a) litigation. waived its police officers has the waiver where the of subject similar for waived governmental § 36-33-3, liability liability 36-33-l(a). been one citing § the and has In without possesses and to interaction § found, city Grovetown O.C.G.A. O.C.G.A. surprisingly Eleventh cover The granted in that immunity 10.) immunity the alleges case, that a the whether false city to arrest procured liability insurance and filed a claim for coverage of the false arrest constituted a disputed question of material fact. 541 F. App'x at 926; see also Torts § 21:9 (2015) Gray, Charles R. Adams III, Ga. Law of ("In the absence of liability insurance, a municipality cannot be held liable for the torts of policemen or other officers engaged in the discharge of duties imposed by upon them by law."). In the context of municipal liability for automobile involving courts have accidents found that city the grant police officers, of immunity in § 36-33-3 subject to the waiver provision in § 33-24-51 (b) . City of E. Point, 420 S.E.2d 391, of Thomaston v. Bridges, The Court concludes is Ekarika v. 392 (Ga. Ct. App. 1992); City 439 S.E.2d 906, 909 n.7 that the Georgia immunities (Ga. 1994). granted by §§ 36- 33-1 and 36-33-3 are subject to the liability-insurance-waiver provision in § 36-33-1(a). Based on Plaintiff's allegation that 29 Grovetown possesses Defendants' conduct, liability insurance that would cover the Court finds that Plaintiff sufficiently alleged that Grovetown is not immune from suit. 3. Failure to State a Defendants prosecution cause to claim arrest argument on qualified Court also the establish that Plaintiff. dismiss argue fails the because § 1983 the state-law Defendants' Defendants' claim, except above, Plaintiff's Court, lacked therefore, state-law malicious- possessed argument without arguable-probable-cause Defendants' The that Plaintiff. immunity's explained Claim mirrors the standard. probable cause of As the if true, to arrest Defendants' malicious-prosecution its gloss allegations, DENIES probable motion claim to asserted against the city. The Court now turns to count is slightly Plaintiff's negligence count. different than those discussed This above. Plaintiff alleges that "Defendants owed plaintiff a ministerial duty to conduct divulging 155.) duty a line-up plaintiff's identification photograph Plaintiff alleges that and the standard of to the without witness." (Compl. Defendants breached that care by instructing Lucas Plaintiff's photograph in advance of the photo lineup. 55 156-57.) previously Plaintiff alleges that this breach was and proximate cause of his damages. 30 (Id. 5 160.) 5 alleged to view (See id. the actual Besides did not arguing the discussed above, address whether Plaintiff's negligence dismissed. For the reasons protected by immunity. motion immunities to dismiss discussed The Court, the above, therefore, negligence count Defendants count the should be City is not DENIES Defendants' asserted against the city. IV. For dismiss Court the reasons (Doc. 9) DISMISSES Powell and explained GRANTED Plaintiff's Wheatley Defendants Jones, DISMISSES is and Powell, Plaintiff's false/malicious CONCLUSION arrest IN § will Plaintiff's PART 1983 Wheatley, state-law and false state-law Defendants' and DENIED claims Plaintiff's 1983 claims against Grovetown, as above, Jones, claims The Defendants claims and Nalley. against The Court also against imprisonment. to PART. IN against state-law claims motion Grovetown for Plaintiff's § and Nalley will proceed, for malicious prosecution and negligence against Grovetown. ORDER ENTERED at Augusta, Georgia, this /OC day of 2016. RANDAL HALL UNITED SJTATES DISTRICT JUDGE SOUTHERN DISTRICT OF GEORGIA 31 September,
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