DUPRE v. THOMAS COUNTY, GEORGIA, (M.D.Ga. 1998)

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Docket Number

No. 6:94-CV-66 (WLS).

Motions

Motion to dismiss : In Part

Attorney(S)

James L. Ford, Mr., Atlanta, GA, John Kent Edwards, Mr., Valdosta, GA, for plaintiff. William A. Turner, Jr., Mr., Valdosta, GA, for defendants.

Judges

Willie Louis Sands

Acts

The Public Health And Welfare — Civil Rights — Generally — Civil Action For Deprivation Of Rights

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Smart Summary

Factual and Procedural Background

Plaintiff Jerry Lee Dupree filed a 42 U.S.C. § 1983 action on September 16, 1994, alleging excessive force and unlawful arrest under the Fourth and Fourteenth Amendments, and state torts including assault and battery, false arrest, false imprisonment and malicious prosecution. Defendants moved to dismiss for failure to state a claim. The factual account in the record states that in November 1992 plaintiff agreed to act as an informant for the Thomas County Sheriff's Department in exchange for unspecified assistance on pending charges. On or about January 8, 1993, plaintiff informed defendant Brinson of a planned burglary; officers surveilled the site, observed two men enter a garage, and at some point plaintiff was shot in the hand when defendant Richards' gun discharged through the garage door. Plaintiff was wearing gloves and had burglary tools. Defendants sent him to the hospital treating him as an informant; Captain Geer later recommended arrest and a warrant was obtained.

Legal Issues Presented

Whether defendants are entitled to sovereign immunity for claims against the Sheriff's Department and the county.
Whether individual defendants are entitled to qualified immunity for (a) the shooting (use of force) and (b) the arrest.
Whether the Fourth and Fourteenth Amendment claims and related state tort claims (false arrest, false imprisonment, malicious prosecution, assault and battery) survive summary judgment.

Arguments of the Parties

Plaintiff's Arguments

Plaintiff contends he was acting as an informant and that defendants were aware of that status and had a duty to protect him from harm.
Plaintiff argues defendants were not acting within their discretionary authority and therefore are not entitled to qualified immunity.
Plaintiff contends there was no probable cause for his arrest.

Defendants' Arguments

Defendants moved to dismiss for failure to state a claim and, given matters outside the pleadings, sought summary judgment under Rule 56.
Defendants asserted sovereign immunity for the Sheriff's Department and county (no waiver and no policy/custom producing the violation).
Defendants asserted qualified immunity for individual officers, arguing they acted within discretionary authority and that the shooting did not amount to a constitutional violation as a matter of law.
Defendants asserted they had probable cause (or arguable probable cause) to arrest plaintiff.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Hishon v. King Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)	Standard for dismissal under Rule 12(b)(6): complaint not dismissed unless no set of facts entitles plaintiff to relief.	Cited to state dismissal standard; court noted matters outside pleadings required treating motion as one for summary judgment.
Fitzpatrick v. City of Atlanta, 2 F.3d 1112 (11th Cir. 1993)	Allocation of burdens on summary judgment; defendants bearing the burden must affirmatively show absence of material fact.	Used to explain burdens applicable on summary judgment.
Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)	Official-capacity suit is a suit against the governmental entity.	Supported treating suit against officers in official capacity as suit against the Sheriff's Department.
Toombs County v. O'Neal, 254 Ga. 390, 330 S.E.2d 95 (1985)	State constitutional doctrine extending sovereign immunity to the state and its departments and agencies, including counties.	Used to explain Georgia's sovereign immunity context.
Gilbert v. Richardson, 264 Ga. 744, 452 S.E.2d 476, 480 (1994)	County sovereign immunity may be waived only by specific legislative act stating extent of waiver.	Supported conclusion that county immunity is not waived absent specific legislative waiver.
Farred v. Hicks, 915 F.2d 1530, 1532-1533 (11th Cir. 1990)	Government entities are not entitled to sovereign immunity where a policy or custom is the moving force behind the violation; cites Monell.	Cited for the policy/custom exception to sovereign immunity; court found no evidence of such policy here.
Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)	Municipal liability for constitutional violations caused by policy or custom.	Referenced via Farred as basis for policy/custom exception; court found no supporting evidence.
McMillian v. Johnson, 88 F.3d 1573 (11th Cir. 1996)	Related to whether a Sheriff's Department can make policy decisions attributable to the county.	Noted in a court footnote questioning the Department's capability to make policy decisions attributable to the county.
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)	Definition of qualified immunity (shield for officials unless they violate clearly established rights).	Quoted and applied as the governing standard for qualified immunity.
Ansley v. Heinrich, 925 F.2d 1339, 1341 (11th Cir. 1991)	Whether qualified immunity is available is a question of law for the court.	Used to support that the court decides availability of qualified immunity.
Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir. 1988)	Definition of discretionary authority: actions undertaken pursuant to performance of duties within scope of officer's authority.	Cited to find defendants were acting within discretionary authority.
McKinney v. DeKalb County, Georgia, 997 F.2d 1440, 1442 (11th Cir. 1993)	Qualified immunity inquiry: whether right was clearly established and whether facts show violation.	Applied as the test for qualified immunity analysis.
Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)	Negligence alone is insufficient for a Fourteenth Amendment claim.	Cited to require gross negligence or deliberate indifference for Due Process claim.
Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986)	Negligence is insufficient for Fourteenth Amendment deprivation.	Used with Daniels to require more than negligence for Fourteenth Amendment relief.
Taylor v. Ledbetter, 818 F.2d 791 (11th Cir. 1987)	Citing the necessity of gross negligence or deliberate indifference to sustain a Fourteenth Amendment claim.	Supported the court's standard for Fourteenth Amendment claims.
Gilmere v. City of Atlanta, Ga., 774 F.2d 1495, 1501 (1985), cert. denied 476 U.S. 1115, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986)	To state a substantive due process violation for use of force, force must be applied "maliciously and sadistically for the very purpose of causing harm."	Applied to the shooting claim; court found plaintiff alleged at most negligence and granted summary judgment for defendants on that claim.
Patterson v. Fuller, 654 F. Supp. 418 (N.D.Ga. 1987)	Used by plaintiff as authority that a question of fact can exist where an officer is negligent in handling a weapon while a suspect is subdued.	Cited by plaintiff; court distinguished and declined to follow Patterson on seizure/reasonableness grounds.
Matthews v. City of Atlanta, 699 F. Supp. 1552 (N.D.Ga. 1988)	Holds a seizure occurs where a person is "put under the control of another as a result of acts intentionally taken."	Court agreed with Matthews and concluded plaintiff was not "seized" by an intentional act causing the gunshot, granting summary judgment on the Fourth Amendment shooting claim.
Brower v. County of Inyo, 489 U.S. 593, 596-597, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989)	Definition of a seizure requiring termination of freedom of movement through means intentionally applied.	Used in analysis of whether the gunshot constituted a Fourth Amendment seizure; court found it did not under the facts.
Gold v. City of Miami, 121 F.3d 1442, 1445 (11th Cir. 1997)	Arguable probable cause concept: given officers' knowledge, reasonable officer could believe crime committed.	Applied in evaluating whether a material question of fact exists concerning probable cause for arrest.
Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)	Probable cause standard.	Cited for the probable cause standard applied to the arrest claims; court found a material factual dispute.

Court's Reasoning and Analysis

The court first treated defendants' Rule 12(b) motion as one for summary judgment because matters outside the pleadings were presented. Applying the summary judgment burden rules, the court examined sovereign immunity, qualified immunity, and the merits of the constitutional and state-law claims.

On sovereign immunity the court concluded: (1) suits against officers in official capacity are suits against the Sheriff's Department; (2) Georgia law extends sovereign immunity to counties and their departments and the Georgia Tort Claims Act does not waive county immunity; (3) a waiver requires a specific legislative act; and (4) the policy/custom exception applies only where a policy or custom is the moving force behind the violation. Because plaintiff offered no evidence of a departmental policy or training practice causing the harm and did not show a waiver, the Sheriff's Department and the official-capacity defendants, and the county, are entitled to sovereign immunity.

On qualified immunity the court applied Harlow and Eleventh Circuit standards: it first determined defendants acted within their discretionary authority (actions taken in performance of duties, including use of force and arrest). It then applied the two-step inquiry: whether the right was clearly established and whether, viewing facts most favorably to plaintiff, that right was violated.

Fourteenth Amendment: the court held mere negligence is insufficient and a substantive due process claim for the shooting requires malicious, sadistic conduct. Plaintiff's evidence (that he was an informant and that Brinson did not know how his weapon discharged) at most supports negligence. Thus defendants are entitled to summary judgment on the Fourteenth Amendment shooting claim. However, as to the arrest, plaintiff presented evidence that defendants knew he was acting as an informant yet arrested him; the court found a material question of fact whether the arrest was intentional and without probable cause, so summary judgment was denied on that Fourteenth Amendment arrest claim.

Fourth Amendment: for the shooting the court considered the seizure requirement (Brower) and distinguished Patterson, agreeing with Matthews that a seizure requires an intentional act that terminates freedom of movement. Because the shooting was not shown to be an intentional act effectuating a seizure, defendants were entitled to summary judgment on the Fourth Amendment shooting claim. For the arrest, the court applied the probable cause/arguable probable cause standard (Gold; Brinegar) and found a material factual dispute whether a reasonable officer could have believed plaintiff intended to commit burglary; thus defendants are not entitled to summary judgment on the Fourth Amendment arrest claim.

State law torts: because genuine issues of material fact exist regarding probable cause and the disposition of criminal charges, the state claims for false arrest, false imprisonment, malicious prosecution, and the assault-and-battery justification question survive summary judgment.

Holding and Implications

GRANTED-IN-PART and DENIED-IN-PART.

Holding: The court granted summary judgment as to (a) claims against the Sheriff's Department and defendants sued in their official capacities based on sovereign immunity, and (b) the constitutional claims relating to the shooting (both Fourteenth and Fourth Amendment theories). The court denied summary judgment as to claims concerning the arrest (Fourth and Fourteenth Amendment), and related state-law torts (false arrest, false imprisonment, malicious prosecution, and assault and battery justification).

Implications: The direct effect is dismissal of official-capacity/departmental claims and the shooting-based constitutional claims; multiple claims remain for trial due to material factual disputes regarding probable cause, the circumstances of the arrest, and the disposition of criminal charges. The opinion does not announce a new legal rule beyond application of existing precedent.

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Jerry Lee DUPREE, Plaintiff, v. THOMAS COUNTY, GEORGIA; Thomas County Sheriff's Department; Carlton Powell; Jeffrey Brinson; John Richards and John Does 1-5, indi

ORDER

SANDS, District Judge.

Plaintiff filed his § 1983 claim on September 16, 1994, alleging excessive force and unlawful arrest in violation of the Fourth and Fourteenth Amendments, and various state law torts including assault and battery, false arrest, false imprisonment and malicious prosecution. Before the court is defendants' Motion to Dismiss for Failure to State a Claim.

BACKGROUND

In November of 1992, plaintiff and investigators from the Thomas County Sheriffs Department reached an agreement whereby plaintiff would render aid in solving a series of burglaries. Plaintiff agreed to act as an informant in exchange for some form of assistance with charges that were pending against him, although the exact nature of this assistance is disputed. On or around January 8, 1993, plaintiff called defendant Brinson and informed him that Carlton Jackson had requested plaintiff's assistance at a burglary to take place that night. There is a dispute as to where plaintiff said the burglary was to take place. Plaintiff was to pick up Jackson at midnight and drive him to the site. The surveillance team arrived at either 10:30 or 11:00 p.m. At some point in time, the team spotted two men enter Gordon's garage and engage in what appeared to be a burglary. Three of the officers waited for the two men to emerge, and plaintiff was shot in the hand when defendant Richards' gun discharged through the garage door. Plaintiff was wearing gloves and had burglary tools in his possession. Defendants sent plaintiff to the hospital, still treating him as an informant. However, Captain Geer subsequently recommended that plaintiff be arrested for burglary, and a warrant was taken out for his arrest.

DISCUSSION

Plaintiff's complaint may not be dismissed for failure to state a claim unless the court finds he cannot prove any set of facts entitling him to relief. Hishon v. King Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). However, where, as here, matters outside the pleadings have been presented, the court must treat the motion as one for summary judgment pursuant to Rule 56. Fed.R.Civ.P. 12(b). Defendants are entitled to summary judgment if there are no issues of material fact. For issues upon which plaintiff bears the burden of proof, defendants may show merely an absence of evidence; however, for issues upon which defendants bear the burden, they must affirmatively show the absence of an issue of material fact. Fitzpatrick v. City of Atlanta, 2 F.3d 1112 (11th Cir. 1993).

Sovereign Immunity

The suit against the officers in their official capacities is actually a suit against the sheriffs department. Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). In 1991, the state constitutional doctrine of sovereign immunity was extended "to the state and all of its departments and agencies," including counties. Ga. Const. of 1983, art. I, § II, ¶ IX(e). Toombs County v. O'Neal, 254 Ga. 390, 330 S.E.2d 95 (1985). Subsequently, the state adopted the Georgia Tort Claims Act, which waived the state's sovereign immunity, but expressly excluded counties from that waiver. O.C.G.A. §§ 50-21-20 to 50-21-37. However, a county's sovereign immunity may be waived by a legislative act specifically waiving the immunity and stating the extent of such waiver. Gilbert v. Richardson, 264 Ga. 744, 452 S.E.2d 476, 480 (1994). Furthermore, government entities are not entitled to sovereign immunity where a policy or custom is the "moving force" behind the constitutional violation. Farred v. Hicks, 915 F.2d 1530, 1532-1533 (11th Cir. 1990), citing Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

Although plaintiff alleges in his complaint that the Sheriffs Department engaged in a practice of excessive force and failed to train officers in the use of deadly force, plaintiff offers no evidence in support thereof. On the contrary, the evidence shows that no one believed that deadly force was warranted in this case. In fact, plaintiff does not even address this issue in his response, nor does he indicate that the state has waived the Department's immunity from suit. Therefore, the Sheriff's Department and all defendants sued in their official capacity are entitled to sovereign immunity.

As the court finds that there is no evidence of any policy which resulted in plaintiff's harm or a waiver of immunity, the county is entitled to sovereign immunity as well.

In fact, the court questions whether the Sheriff's Department is even capable of making policy decisions attributable to the county in light of McMillian v. Johnson, 88 F.3d 1573 (11th Cir. 1996).

Qualified Immunity

Any person who, under color of law, deprives another of his constitutional rights may be held liable in a civil action. 42 U.S.C. § 1983. Under the doctrine of qualified immunity,

"government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."

Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Whether qualified immunity is available as a defense is a question of law for the court. Ansley v. Heinrich, 925 F.2d 1339, 1341 (11th Cir. 1991).

Plaintiff argues that defendants were not acting within the scope of their discretionary authority and, therefore, are not entitled to qualified immunity. His argument seems to say that because defendants committed a violation they were not acting within their discretionary authority. If that were the case, however, there would be no qualified immunity. Qualified immunity provides that when a person is acting within his discretionary authority and he commits a constitutional violation, he may be immune from suit. The committing of a violation does not remove that person from his discretionary authority.

The Eleventh Circuit defines discretionary authority to include actions undertaken pursuant to the performance of duties that are within the scope of an officer's authority. Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir. 1988). Defendants have more than adequately shown they were acting within their discretionary authority. Even if defendants had intentionally shot the plaintiff, they would have been acting within their discretionary authority to use force, including deadly force. Nor was it beyond defendants' authority to arrest plaintiff. Plaintiff may certainly challenge these actions, but this court finds no question of fact that defendants were acting pursuant to their discretionary authority when the alleged constitutional violations occurred.

The questions for the court then concerning qualified immunity are whether there is a clearly established right involved and whether, given the facts as viewed most favorably to plaintiff, that right was violated. McKinney v. DeKalb County, Georgia, 997 F.2d 1440, 1442 (11th Cir. 1993) (citations omitted).

Fourteenth Amendment

The Fourteenth Amendment prohibits the deprivation of life, liberty or property without due process of law. However, mere negligence is insufficient to support a claim under the Fourteenth Amendment. Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) and Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986). Such a claim requires a showing of gross negligence or deliberate indifference. Taylor v. Ledbetter, 818 F.2d 791 (11th Cir. 1987).

1. Gunshot.

To state a claim for a substantive due process violation, a plaintiff must show that the force used by a defendant officer was applied "maliciously and sadistically for the very purpose of causing harm." Gilmere v. City of Atlanta, Ga., 774 F.2d 1495, 1501 (1985), cert. denied 476 U.S. 1115, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986).

Plaintiffs offer of proof for this claim is that he was working as an informant for defendants and they were aware of that fact and had a duty to keep him from harm. This falls far short of the mark: Plaintiff nowhere alleges anything more than negligence. The closest he comes is to point out that Brinson had no idea how his weapon discharged. At most, this supports negligence; it in no way could support a finding of malice, gross negligence or recklessness. Therefore, defendants are entitled to summary judgment on this issue.

2. Arrest

Plaintiff has put forward sufficient evidence to show more than mere negligence concerning his arrest. Plaintiff has shown that defendants were aware that he was acting as their informant at the time of the burglary and that he knew they were aware of the proposed burglary. Yet even with this knowledge, defendants claim to have probable cause to believe that plaintiff was in Gordon's garage with the intent to commit a felony. This court finds there is a material question of fact concerning whether defendants intentionally arrested plaintiff without probable cause in violation of the Fourteenth Amendment and defendants are not entitled to summary judgment on this issue.

Fourth Amendment

1. Gunshot.

The Fourth Amendment provides a clearly established right to be free from unreasonable seizures. If defendants undertook an act which a reasonable officer would know would violate this right, they are not entitled to qualified immunity.

A seizure requires more than just a government caused or desired termination of a person's freedom of movement; it also requires "termination of freedom of movement through means intentionally applied." Brower v. County of Inyo, 489 U.S. 593, 596-597, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989). Plaintiff argues that defendant Richards intentionally drew his gun which resulted in plaintiff being shot. Plaintiff cites the case of Patterson v. Fuller, 654 F. Supp. 418 (N.D.Ga. 1987), which held that defendants were not entitled to summary judgment on plaintiff's Fourth Amendment claim because there was a question of fact as to whether the officer was negligent in having his gun cocked while the deceased was subdued.

This court is not persuaded by that case, and finds enough distinctions to find for defendants. The Patterson court leaped over the seizure issue and went straight to the issue of reasonableness. While that may be justified where an already subdued, unarmed person is shot to death, it is not justified here. Instead, this court agrees with the court in Matthews v. City of Atlanta, 699 F. Supp. 1552 (N.D.Ga. 1988), which held that a seizure occurs where a person is "put under the control of another as a result of acts intentionally taken." Id., at 1556. Since plaintiff here was not "seized" (read shot) as a result of an intentional act, he has not stated a Fourth Amendment claim concerning his gunshot wound. Defendants are, therefore, entitled to summary judgment on this issue.

Both Patterson and Matthews are cases out of the Northern District of Georgia. However, the court in Matthews expressly rejected the rationale in Patterson as being "without explanation." Matthews, 699 F. Supp. at 1557.

2. Arrest.

The Fourth Amendment also prohibits arrests without probable cause. Arguable probable cause exists where, given the totality of the facts within the knowledge of the officers, a reasonable officer could believe a crime has been committed by a certain suspect. Gold v. City of Miami, 121 F.3d 1442, 1445 (11th Cir. 1997); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).

Plaintiff argues that he was unlawfully arrested as there was no probable cause such that a reasonable person could believe he had committed burglary. Burglary occurs where a person enters a building without permission with the intent to commit a felony or theft therein. O.C.G.A. § 16-7-1. Plaintiff has proffered sufficient evidence to create an issue of fact as to whether a reasonable person in defendants' place could find that he intended to commit a felony in the garage. The evidence shows that plaintiff and defendants understood that he was working as an informant during the burglary in question. The court is hard pressed to understand why plaintiff would commit theft when he knew full well that the sheriffs department was fully informed as to the particulars of this burglary. There is, therefore, a material issue of fact as to whether defendants had probable cause to arrest plaintiff for burglary; defendants are not entitled to summary judgment on this issue.

State Law Torts

As the court has found there is a genuine issue of material fact concerning whether defendants had probable cause to arrest plaintiff, and whether defendants knew they had probable cause to arrest plaintiff, the state law tort claims of false arrest and false imprisonment are not suitable for summary judgment. O.C.G.A. §§ 51-7-1, 16-5-41.

Plaintiff's malicious prosecution claim will also remain as there is a question of fact as to whether plaintiff was found guilty of the burglary charges or whether these were dropped, and if dropped, whether it was in exchange for restitution.

Finally, there is a question of fact as to justification, regardless of intent, for purposes of plaintiffs assault and battery cause of action. O.C.G.A. § 51-1-13.

In light of the foregoing, defendants' Motion to Dismiss or for Summary Judgment is GRANTED-IN-PART as to plaintiff's claims concerning sovereign immunity and the constitutional claims regarding the shooting. The motion is DENIED-IN-PART as to all other causes of action.