Tolston v. City of Atlanta

SARAH E. GERAGHTY, United States District Judge

Justin T. Tolston, Omaha, NE, Pro Se.

Phillip Edward Friduss, R. David Ware, Hall Booth Smith, P.C., Atlanta, GA, Jacquita Parks, Lewis Brisbois Bisgaard & Smith LLP, Atlanta, GA, Joel Aldrich Jothan Callins, City of Atlanta, Atlanta, GA, Nicholas Andrew Kinsley, Hall Booth Smith Tifton, Tifton, GA, for Defendant Officer Keith Wadsworth.

ORDER

SARAH E. GERAGHTY, United States District Judge.

This is a § 1983 action. Plaintiff Justin Tolston was arrested at the 2018 Atlanta Pride Festival in Piedmont Park after he bumped into a City of Atlanta police officer amidst a crowd of festivalgoers. The parties have different accounts of the incident. In Tolston's version, he accidentally jostled Officer Lawrence Holland in passing and immediately apologized. Holland allegedly responded by grabbing Tolston's

drink, pouring it out, cursing at him, and then — along with Officer Keith Wadsworth — tackling him to the ground with such force that he lost consciousness and sustained a concussion. According to Tolston, the officers were about to release him, but when Tolston requested the officers' badge numbers, they continued his detention for approximately an hour and cited him for ordinance violations.

Defendants tell a different version of events. Officer Wadsworth states that Tolston "crashed" into Holland while riding an electric scooter, failed to respond to officers' instructions, was "up in [Holland's] face," "place[d] his hands on" Holland, and was otherwise disorderly and noncompliant. Defendants claim that Tolston appeared intoxicated at the time. Under these circumstances, they say, there was ample probable cause to arrest.

Tolston, who is both pro se and an attorney, has sued the City of Atlanta, one of the arresting officers, and various police officials, asserting § 1983 claims for false arrest, excessive force, First Amendment retaliation, malicious prosecution, and failure to train and supervise. He also brings state-law claims.

This case is now before the Court on a plethora of motions, including: (1) Plaintiff's motion for leave to amend his complaint (Doc. 88); (2) the City's motion for summary judgment (Doc. 140); (3) a motion for summary judgment filed by Defendants Chief Rodney Bryant, Officer Keith Wadsworth, Investigator James Battle, and Investigator Gartrell Walton (Doc. 141); (4) Plaintiff's motion to join Holland as an indispensable party (Doc. 208); (5) Plaintiff's motion for a preliminary injunction (Doc. 202); (6) Plaintiff's motion for judicial notice and to join Mayor Dickens (Doc. 216); and (7) Plaintiff's motion to supplement the summary judgment record (Doc. 217). This order also addresses Plaintiff's many other motions. (Doc. 199, 204, 205, 210, 218, 222, 225, 226, 227, 231. 232, 233, 236). Having carefully considered the parties' positions and applicable law, the Court enters the following order.

I. Factual Background

Pursuant to LR 56.1(B), NDGa., the parties filed statements of material fact and responded to each other's statements. (Doc. 140-2, 141-2, 170, 171-1, 172-1, 194, 195.) Such statements are often helpful in narrowing the range of factual disputes in the summary judgment record, but that has not been the case here. Defendants submitted statements of material fact "to which there is no genuine issue to be tried" (Doc. 140-2, Doc. 141-2), but in response, Plaintiff pointed to record evidence showing that key facts remain in dispute. (See, e.g., Doc. 170 ¶¶ 1, 4, 11, 13, 18.)

In some instances, Plaintiff does not directly contradict the asserted fact, but presents an arguably conflicting (or differently characterized) fact in response to Defendants' asserted fact. (See, e.g., id. ¶¶ 5-7, 11, 12, 17.)

Plaintiff, in turn, has filed documents styled as "statement[s] of additional undisputed facts." (Doc. 171-1, 172-1 (emphasis added).) Defendants responded by declaring many of Plaintiff's alleged facts to be immaterial or irrelevant. (See, e.g., Doc. 194 ¶¶ 2, 5, 9-15, 18, 21, 22, 24-25, 28, 29, 35, 40, 41, 43, 45, 53, 54; Doc. 195 ¶¶ 1-11, 13, 21, 22, 27, 29-31, 33, 34, 36, 37, 39-125.) Many were. But Defendants so responded even in instances in which the alleged fact would seem at least arguably relevant. (See, e.g., Doc. 194 ¶¶ 2, 11, 24-26, 36, 45, 51-55; Doc. 195 ¶¶ 7, 10, 12, 13, 26.) After review of the parties' statements, the Court concludes that key facts are, indeed, disputed here. The Court has further found certain, relevant disputes of fact in deposition testimony and other parts of the evidentiary record, not all of which have made their way into the parties' factual recitations. Where relevant, the Court cites directly to such evidence. The following facts are either undisputed, or if disputed, taken in the light most favorable to Plaintiff.

As Defendants point out (Doc. 184), this was improper because the applicable local rule provides that a respondent may set out "facts which the respondent contends are material and present a genuine issue for trial" — in other words, disputed, material facts. LR 56.1(B)(2)(b), NDGa (emphasis added).

A. Plaintiff's Arrest

On October 14, 2018, Plaintiff attended the Atlanta Pride Festival in Piedmont Park. (Tolston Dep., Doc. 149-1 at 57:3-5, 58:21-24.) At the time, Tolston was a student in the Master of Laws (LLM) program at Emory University School of Law. (Id. at 18:15-18, 152:16-21.) Tolston has been a licensed attorney since September 2018. (Id. at 153:12-19.)

The festival attracted a crowd; the festivalgoers were nearly "shoulder-to-shoulder" at times. (Id. at 59:24-60:3.) Vendors were permitted to sell alcohol at the festival (Joint Stip., Doc. 127 at 1), and Tolston states that he had "like a swig.... [a] very small, small amount" of alcohol before the incident described below. (Tolston Dep., Doc. 149-1 at 64:3-4, 64:21-65:6.)

He did not know what kind of alcohol it was. (Id. at 65:4-6 ("So I don't recall the type it was. Somebody handed me something. I had immediately took a drink and I said, 'Oh, that's liquor,' and was like, 'No.'").)

Tolston's encounter with City of Atlanta police officers occurred after 7 p.m. (Id. at 57:9-12.) He purchased a bottle of Bud Light from a park vendor, but did not drink it. (Id. at 62:23-63:12, 64:7-17.) He decided to throw it away, and walked toward a trash can. (Id. at 64:14-17, 67:4-19, 81:11-14.) Tolston held the beer bottle in one hand and his electric scooter in the other. (Id. at 67:4-19; Doc. 140-2 ¶ 1; Doc. 141-2 ¶ 1.) On his way to the trash can, Tolston walked downhill when he "shifted [his] weight a little bit" and accidentally bumped into Officer Holland's shoulder. (Tolston Dep., Doc. 149-1 at 67:4-25.) At the time, Holland was standing next to Officer Keith Wadsworth and Officer Thaddeus Joseph. (Wadsworth Dep., Doc. 153-1 at 19:4-11.) Tolston told Holland, "I'm sorry." (Tolston Dep., Doc. 149-1 at 67:24-68:3; Pl. Resp. to Defs.' SOMF, Doc. 170 ¶ 3.) Holland responded, "What the fuck is your problem?" (Tolston Dep., Doc. 149-1 at 68:3-4, 76:1-2.) Holland then took the bottle out of Tolston's hand and poured the beer onto the ground. (Id. at 68:5-9; Doc. 140-2 ¶ 6.) Tolston asked Holland, "What's going on?" (Id. at 68:12-14.) Holland directed Tolston to "[k]eep it fucking moving." (Id. at 68:13-15, 77:16-23; Pl. Resp. to Defs.' SOMF, Doc. 170 ¶ 8.) Tolston then asked Holland, "Why are you treating me like that?" and either, "What is the issue?" or "What's the problem?" (Tolston. Dep., Doc. 149-1 at 68:14-16, 77:23-25, 79:18-22; Pl. Resp. to Defs.' SOMF, Doc. 170 ¶ 11.) Per Tolston, Holland

Defendants' statements of material facts say that Tolston "ran into Officer Lawrence Holland with his shoulder" while Tolston was "carrying an open beer in one hand and a GOTRAX electric scooter in the other[.]" (Doc. 140-2 ¶ 1; Doc. 141-2 ¶ 1.) This is in accord with Tolston's deposition testimony. It is notably not in accord with Wadsworth's deposition testimony. Wadsworth testified that he saw Tolston "physically crash into" Officer Holland while on a scooter. (Wadsworth Dep., Doc. 153-1 at 24 ("You drove a scooter into Officer Holland."); id. at 129:3-4 ("You crashed a scooter in[to] the officers[].")). Officer Holland similarly told an internal affairs interviewer that Tolston rear-ended him. (Ex. 20 to Wadsworth Dep., Doc. 153-1 at 233.) Defendants' briefing does not acknowledge this discrepancy.

said, "[t]hat's it," and grabbed Tolston by the arm. (Tolston Dep., Doc. 149-1 at 77:14-78:13; Pl. Resp. to Defs.' SOMF, Doc. 170 ¶ 7.) Wadsworth, who was standing beside Holland, intervened and "slammed" or "tackled" Tolston, causing him to hit his head on the ground. (Tolston Dep., Doc. 149-1 at 78:10-20, 79:1-2; Defs.' Resp. to Pl. Add'l SOMF, Doc. 194 ¶ 45.) Holland allegedly assisted Wadsworth in doing so. (Tolston Dep., Doc. 149-1 at 78:7-13.) Tolston claims that he was slammed to the ground with such force that he briefly lost consciousness when his head hit the ground. (Id. at 78:16-20.) Tolston was placed in handcuffs. (Id. at 84:7-11.) Neither Holland nor Wadsworth had their body-worn camera ("BWC") activated at the time of the takedown.

Holland told an internal affairs interviewer that Wadsworth performed a "leg sweep of some sort." (Holland OPS Interview, Doc. 173-2 at 2:67.) An internal affairs investigation memorandum similarly stated that "Officer Wadsworth grabbed Mr. Tolston and took him to the ground with a leg sweep." (OPS Memo, Doc. 173-15 at 4.)

Defendants, as noted above, have a different account of the facts. While Tolston denied that he was intoxicated, Wadsworth said at his deposition that Tolston was in a "disoriented state," had "slurred speech," and smelled of alcohol. (Wadsworth Dep., Doc. 153-1 at 21:10-14; Defs.' SOMF, Doc. 141-2 ¶ 12.) There is also a factual dispute as to whether Tolston placed his hands on Holland before he was taken down to the ground. While Tolston contends that he never placed hands on Holland, (Tolston Dep., Doc. 149-1 at 82:14-17), Wadsworth states that he intervened only after he saw that Tolston "g[ot] into Officer Holland's face" and grabbed Holland, (Wadsworth Dep., Doc. 153-1 at 24:7-13; Wadsworth OPS Interview, Doc. 173-3 at 2:51-56). Defendants also deny Tolston's allegation that Wadsworth slammed or tackled him. Per Wadsworth, he was attempting to arrest Tolston when the two of them tripped and fell. (Wadsworth OPS Interview, Doc. 173-3 at 2:54-56.)

B. Plaintiff's Post-Arrest Detention and Subsequent Release

The officers lifted Tolston off the ground and, at that point, Wadsworth and Holland activated their BWCs. There is then a period when Tolston is seen standing up, in handcuffs. Tolston told the officers, "You can see my Emory ID," to which Holland replied: "I don't care about that, bro. Just stop talking. Shut up." (Wadsworth BWC 1, Pl. Exh. 11 at 1:30-36; Holland BWC 1, Pl. Exh. 16 at 1:20-30.) Wadsworth and Holland then began to walk Tolston, who was still handcuffed, toward a park exit. (Wadsworth BWC 1, Pl. Exh. 11 at 0:20-1:30.) When the officers and Tolston neared the park exit, Wadsworth told Tolston, "Do not come back in this park." (Id. at 1:20-23.)

The events described in the following three paragraphs are captured on the cited portions of the officers' BWC footage.

The footage then appears to show Holland start to remove Tolston's handcuffs, such that his right arm was freed; Holland, however, kept physical hold of Tolston during the following exchange. (Id. at 1:20-1:41.) Tolston said, "This is crazy. I just need everyone's badge numbers." (Id. at 1:35-50.) He also stated that he was going to "sue" for "excessive force." (Id.) The footage further shows Tolston repeating three times, "I just need everyone's badge numbers." (Id.) Holland replied, "Nah, he's gonna take a ride, come on, you're gonna take a ride." (Id. at 1:50-55.) Holland took hold of Tolston's right arm and reapplied the handcuffs. (Id.)

The officers took Tolston to an indoor park pavilion. (Wadsworth BWC 2, Pl. Exh. 12; Tolston Dep., Doc. 149-1 at 87:23-88:3.)

Tolston, who remained handcuffed, can be heard complaining on Wadsworth's BWC audio of a head injury from when officers "slammed [him] on the ground." (Wadsworth BWC 3, Pl. Exh. 13 at 8:00-8:30.) At the pavilion, Tolston received medical attention. (Id. at 5:55-16:11.) The examining doctor told Wadsworth that he did not "see any emergency" relating to Tolston's injury. (Id. at 12:50-57.) Wadsworth then issued a citation to Tolston and released him. Tolston was cited for: (1) being disorderly under the influence (ATLANTA, GA., CODE § 10-9), (2) prohibited conduct in a park (id. § 110-59), and (3) obstruction (id. § 106-81.7). (Doc. 117-5.) The charges were later dismissed.

Tolston says that he repeatedly asked to be taken to Grady Hospital, but that the officers denied his requests. (Tolston Dep., Doc. 149-1 at 90:7-91:5.)

See Defs. Resp. to Pl. Add'l SOMF, Doc. 194 ¶ 53; see also Defs' Br. in Support of Mot. for Summ. J., Doc. 141-1 at 23 (stating that "the charges against Plaintiff were dismissed without fanfare").

It is unclear how much time passed between Tolston's initial encounter with the police and his release. The timestamps on Wadsworth's BWC footage indicate that Tolston remained in the park pavilion for at least 40 minutes before he was released. (Wadsworth BWC 1-4, Pl. Exh. 11-14.)

C. Plaintiff's Injuries

Three days later, on October 17, 2018, Tolston went to Emory University's Student Health Services where he complained of head and neck pain and was examined by a physician's assistant. (Doc. 173-8; Pl. Add'l SOMF, Doc. 171-2 ¶ 51.) According to an Emory University Student Health Services Report, Tolston had "post-concussion syndrome" and "neck muscle strain symptoms." (Doc. 173-8 at 2; Pl. Add'l SOMF, Doc. 171-2 ¶ 51.) Student Health Services wrote an academic accommodation letter for Tolston, stating that Tolston "sustained a concussion and neck injury," and that his "brain injury" may affect his academic performance until he recovers. (Doc. 173-9; Pl. Add'l SOMF, Doc. 171-2 ¶ 52.) Tolston was advised by Student Health Services to avoid all academic activities until he fully recovered and was cleared by Emory's "E-CARE concussion protocol program." (Doc. 173-8, Doc. 173-9.) Tolston testified during his January 2022 deposition that he continued to have neck pain at times from his neck injury. (Tolston Dep., Doc. 149-1 at 41:8-22.) Tolston contends that his experience of "being brutalized by police" has caused him mental anguish and anxiety. (Id. at 234:1-7.)

Defendants do not dispute Tolston's statements of additional material fact relating to his alleged injuries; instead, they allege that "Plaintiff's alleged damages are not at issue in Defendants' Motion for Summary Judgment." (Defs.' Resp. to Pl. Add'l SOMF, Doc. 194 ¶¶ 51-52.)

D. Atlanta Police Department (APD) Internal Investigation

APD's Office of Professional Standards ("OPS") investigated Wadsworth's and Holland's conduct on the date in question. (OPS Memo, Doc. 173-15.) It found that Wadsworth and Holland violated the APD's standard operating procedure by failing to have their BWCs on "buffering mode" at the time of their interaction with Tolston. (Id. at 4; Pl. Resp. to Individual Defs. SOMF, Doc. 170 ¶¶ 22-23.) OPS further found that Wadsworth violated standard operating procedure by failing to

Specifically, the officers were found to have violated APD Standard Operating Procedure 4.2.3, which states: "Employees shall place the BWC into its normal (buffering) mode and shall remain in the normal (buffering) mode unless the employee has the BWC in event (recording) mode." (OPS Memo, Doc. 173-15 at 4.)

notify a supervisor about his use of force on Tolston. (Doc. 173-15 at 5; Doc. 170 ¶¶ 22-23.) And Wadsworth additionally was found to have violated procedure because his work at the Pride Festival was an "extra job" for which he did not obtain an "extra job permit" from the department. (Doc. 173-15 at 3; Doc. 170 ¶¶ 22-23.) OPS did not, however, find Wadsworth in violation of the standard operating procedure prohibiting "maltreatment or unnecessary force." (Doc. 173-15 at 6.)

II. Procedural History

On October 13, 2020, Tolston filed this lawsuit against the City of Atlanta, Officer Wadsworth, former APD Chief of Police Rodney Bryant, APD investigators Gartrell Walton and James Battle, and five John Doe officers. (Doc. 1.) Defendants filed a motion to dismiss, which was granted in part and denied in part. (Doc. 29.) The claims remaining in the case are:

This case was previously assigned the Honorable Michael L. Brown. It was re-assigned to the undersigned on April 18, 2022.

1. Section 1983 excessive force claim against Wadsworth (Count 1);

2. Section 1983 unlawful arrest and seizure claim against Wadsworth (Count 7);

3. Section 1983 unlawful seizure and arrest claim against the City of Atlanta (Count 8);

4. Section 1983 First Amendment retaliation claim against all Defendants (Counts 9 and 10);

5. Section 1983 abuse of process and malicious prosecution claim against all Defendants (Count 15 and 16);

6. Section 1983 negligent hiring/failure to supervise and train claim against all Defendants (Count 17 and 18);

7. State-law false arrest claim against Wadsworth (Count 19);

8. State-law assault and battery claim against Wadsworth (Count 20);

9. State-law malicious prosecution claim against Wadsworth (Count 21).

Tolston voluntarily dismissed his § 1983 deprivation, of property claim against Wadsworth (Count 3), § 1983 deliberate indifference to medical needs claim against Wadsworth (Count 5), and § 1983 deliberate indifference claim against the City (Count 6). (Doc. 106.)

The discovery phase of this case was contentious, as was motion practice and summary judgment briefing. Discovery, which occurred between October 2021 and June 2022 (Doc. 106), involved disputes over written discovery, motions to compel, and an emergency motion to quash, among other disagreements. (See, e.g., Doc. 53, 57, 100, 101, 105, 106, 107, 108, 113, 114, 115, 116, 121, 123, 125, 126, 136, 137, 138.)

On February 16, 2022, about sixteen months after filing suit, Tolston sought leave to amend his complaint to add Officer Holland as a defendant. (Doc. 88.) On July 11, 2022, Defendants filed motions for summary judgment, (Doc. 140, 141).

More motions were then filed on related and unrelated matters. Tolston, for example, filed two post-discovery motions to compel Defendants to produce the transcripts for depositions that he took. (Doc. 145, 151.) Following numerous filings by the parties, the Court denied the motion (Doc. 155), and denied Tolston's motion for reconsideration (Doc. 166). The Court

(See Doc. 145, 148, 151, 152, 153, 154, 155, 156, 158, 159, 160, 162, 166.)

The Court, however, ordered Defendants to file on the docket, in accordance with Local Rule 56.1(C), NDGa., the deposition transcripts cited in their summary judgment briefing. (Doc. 152.)

also: (1) granted Defendants' request to preclude Tolston's mother from serving as an expert witness (Doc. 150); (2) denied Defendants' motion to strike Tolston's "statement of additional, undisputed facts" (Doc. 193); and (3) entered nine orders regarding deadline extensions and requests for leave to exceed page limits relating to summary judgment briefing (Doc. 147, 152, 155, 161, 164, 169, 175, 182, 183). Tolston has since continued to file motion after motion. (See Doc. 199, 202, 204, 205, 208, 210, 213, 215, 216, 217, 218, 219, 221, 222, 225, 226, 227, 231, 232, 233, 236.)

III. Plaintiff's Motion for Leave to Amend (Doc. 88) and Motion to Join Officer Holland as an Indispensable Party (Doc. 208) A. Motion for Leave to Amend

Tolston seeks leave to amend his complaint to add Officer Holland as a defendant. Rule 15 of the Federal Rules of Civil Procedure states that "the court should freely give leave [to amend] when justice so requires." Fed. R. Civ. P. 15(a)(2). Leave to amend, however, need not be given "when the amendment would prejudice the defendant, follows undue delays, or is futile." Campbell v. Emory Clinic, 166 F.3d 1157, 1162 (11th Cir. 1999). For the reasons discussed below, Plaintiff's request to add Holland as a defendant will be denied because (1) Tolston filed his motion after the scheduling order's deadline and has not shown "good cause" under Rule 16 for missing the deadline; and (2) Tolston unduly delayed in filing his motion under Rule 15(a) and his request fails to satisfy Rule 15(c)'s relation-back doctrine.

This motion (Doc. 88) also seeks to (1) identify Defendant Wadsworth as "Keith Wadsworth" instead of "FNU Wadsworth," and (2) dismiss Defendants "FNU Battles" (whose real name is James Battle) and Gartrell Walton. (Doc. 88 at 1.) The Court previously granted Tolston's request to correct Wadsworth's name. (Doc. 106.) Defendants have not opposed the voluntary dismissal of Battle or Walton.
On March 7, 2024, long after he moved to dismiss Battle and Walton as defendants and just as the Court was finalizing this order, Tolston filed a motion to withdraw his motion for leave to amend, stating that he no longer wishes to dismiss Battle or Walton. (Doc. 236.)
Although Tolston's latest motion is styled as a "motion to withdraw," its title is not quite consistent with its content. In the motion, Tolston makes clear that he still wants the main, proposed relief sought in the motion to amend — the addition of Holland as a defendant. (Doc. 236.) But he now wants to "take back" his prior request to dismiss Battle and Walton, for the sole reason that he wants these individuals to testify at trial about his Monell claims.
The Court construes Tolston's motion as a request to call Battle and Walton as witnesses to testify about his Monell claims at trial. So construed, the motion is DENIED for the following reasons. First, the motion is premised on the incorrect assumption that a person must be a party to testify at trial. That is not the case. Second, the City is entitled to summary judgment, so municipal liability will not be at issue at trial. (Whether these individuals may offer relevant testimony on other issues is a matter to be determined at a later time.) Third, to the extent that the motion seeks to hold Battle and Walton liable, it is denied because Battle and Walton have moved for summary judgment (Doc. 141), and Tolston has presented no evidence relating to their alleged liability. Tolston fails to show how either defendant violated his constitutional rights. As such, they are entitled to summary judgment. Summary judgment is granted in their favor. For these reasons, Tolston's motion (Doc. 236) is DENIED.

1. The Motion to Amend is Untimely and Plaintiff Has Not Shown Good Cause for Late Amendment Under Rule 16

Tolston's motion is untimely under the Court's scheduling order (Doc. 54), and Plaintiff has not shown good cause for missing the amendment deadline. Under Rule 16, the judge must issue a scheduling

order that limits "the time to join other parties [and] amend the pleadings," which may be modified "only for good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(3)-(4). When a motion to amend the pleadings is filed after the scheduling order's deadline, "the movant must first demonstrate good cause under Rule 16(b) before the court considers the amendment's propriety" under Rule 15. Bowers v. Am. Heart Ass'n, Inc., 513 F. Supp. 2d 1364, 1367 (N.D. Ga. 2007) (citing Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418 n.2, 1419 (11th Cir. 1998)).

In this case, the scheduling order approved the parties' joint preliminary report and discovery plan ("JPRDP"), which stated that: "[a]mendments to the pleadings submitted LATER THAN THIRTY DAYS after the Joint Preliminary Report and Discovery Plan is filed, or should have been filed, will not be accepted for filing, unless otherwise permitted by law." (Doc. 48 at 11.) The JPRDP was timely filed on December 1, 2021. (Id.) Tolston filed his motion on February 16, 2022—approximately six weeks late. The Court must therefore consider whether there is good cause to modify the scheduling order.

The facts do not support a finding of good cause. Good cause does not exist to modify a scheduling order when the plaintiff's "failure to comply with the court's scheduling order resulted from a lack of diligence in pursuing her claim." Sosa, 133 F.3d at 1418. A plaintiff may be found to lack the requisite "diligence" under Rule 16, for example, when (1) "the information giving rise to the need to amend was available to the plaintiff before the deadline expired"; or (2) "where a plaintiff fails to seek the information needed to determine 'whether an amendment is in order.'" Berk v. Equifax, Inc., No. 1:20-CV-1279-TWT-CCB, 2021 WL 2391466, at *3 (N.D. Ga. Apr. 28, 2021) (quoting S. Grouts & Mortars, Inc. v. 3M Co., 575 F.3d 1235, 1241 n.3 (11th Cir. 2009)). "If a party was not diligent, the good cause inquiry should end." Sosa, 133 F.3d at 1418 (internal quotation marks and alterations omitted).

Here, Tolston had access to the information needed to amend his complaint well before the deadline for filing his motion expired. We know this for several reasons. First, the video evidence from October 14, 2018, contains close-up footage of Officer Wadsworth writing Tolston's citation; it then shows Tolston signing and accepting the citation before his release. (Wadsworth BWC 3, Pl. Exh. 13 at 14:25-16:05.) Tolston's complaint, filed on October 13, 2020, affirms that Tolston was "issued a citation" when he was arrested. (Doc. 1 ¶¶ 48, 202.) This citation identified Holland as an "[a]rresting [o]fficer" and the person with whom Tolston "made physical contact" in the park. (Doc. 117-5.) The record therefore indicates that Tolston had actual possession of a document identifying Holland on the very day he was arrested — three and a half years before he sought amendment.

Second, Tolston's complaint makes express reference to "incident report #182871758" — Wadsworth's November 7, 2018, report describing the circumstances of Tolston's arrest. (Doc. 1 ¶ 49.) In this report, Wadsworth identifies "Ofc. Holland" as the officer who: (1) Tolston bumped into prior to his arrest, (2) poured out Tolston's beer, (3) "grabbed Mr. Tolston by the arm while trying to escort him out of the park", and (4) assisted Wadsworth in arresting Tolston. (Doc. 173-1.) Tolston's complaint specifically lists the charges against him as they appear in "incident report #182871758." (Doc. 1 ¶ 49.) The complaint also states that Tolston "reviewed" the report on February 10, 2020, during one of his post-arrest court appearances. (Id. ¶¶ 93-94) (alleging

that Tolston "reviewed the discovery file[,]" which "consisted of the report by Officer FNU Wadsworth[.]"). Taking Tolston at his own word, therefore, in February 2020, he reviewed the report listing Officer Holland and describing his role in the arrest. In his October 2020, complaint, he referred to the contents of the same report. Again, Tolston sought leave to add Holland on February 16, 2022.

Third, Tolston had Wadsworth's incident report at Wadsworth's deposition in December 2021. Tolston referenced the report, and even Holland's name, during the deposition, which occurred within the period provided for amendments under the scheduling order. (See, e.g., Wadsworth Dep., Doc. 153-1 at 7:18-8:23, 63:4-64:1.)

Tolston alleges that Defendants "only recently provided a copy of the original citation" during discovery. (Doc. 88 at 7.) Even if that is so, the foregoing discussion shows that Tolston had documentation containing Holland's name and describing his role in the arrest (1) on the date of his arrest in October 2018, (2) at a court appearance in February 2020, (3) when he filed his complaint in October 2020, and (4) at Wadsworth's December 2021, deposition. In other words, "the information giving rise to the need to amend was available to the plaintiff before the deadline expired[.]" Berk, 2021 WL 2391466, at *3. A finding of good cause to amend the scheduling order cannot be made here because Tolston did not act diligently in moving to add Holland as a party. There is no good cause shown, and Tolston's motion is denied as untimely under Rule 16. See Sosa, 133 F.3d at 1418.

Tolston says that, on December 21, 2021, he "suffered a loss of the draft amended complaint and accompanying motion due to a loss of data associated with a theft." (Doc. 88 at 2.) He does not explain how this circumstance would justify an amendment to the scheduling order.

2. The Motion to Amend Was Unduly Delayed, and the Proposed Claims Against Officer Holland Do Not Relate Back to the Filing of the Original Complaint Under Rule 15

The motion for leave to amend is also due to be denied under Rule 15(a) and Rule 15(c), because (1) it was unduly delayed, and (2) it asserts claims against Holland that do not relate back to the filing of the original complaint.

a. Undue Delay (Rule 15(a))

A party's "undue delay" justifies the denial of a motion for leave to amend under Rule 15(a). Campbell, 166 F.3d at 1162; Poole v. Wichard, Inc., No. 21-12806, 2022 WL 2903400, at *3, 2022 U.S. App. LEXIS 20289, at *7 (11th Cir. July 22, 2022) ("Undue delay is a legitimate reason for the district court to refuse to grant leave to amend."). Undue delay can be found where "the facts supporting the proposed [amendment] were known at the time of the original [pleading]." Nat'l Serv. Indus., Inc. v. Vafla Corp., 694 F.2d 246, 249 (11th Cir. 1982); see also Maynard v. Bd. of Regents, 342 F.3d 1281, 1287 (11th Cir. 2003) (concluding that movant unduly delayed seeking amendment where "there seem[ed] to be no good reason why Maynard could not have made the motion earlier."). The "amount of time movant knew of the claim prior to seeking leave to amend" and "the amount of time movant delayed in seeking to amend the complaint upon learning of the claim" are relevant considerations in determining whether there has been undue delay. Lesman v. Specialized Loan Servicing, LLC, No. 1:14-cv-02006-LMM-AJB, 2015 WL 13774251, at *4, 2015 U.S. Dist. LEXIS 195708, at *12 (N.D. Ga. Jan. 12, 2015) (citing Fla. Evergreen Foliage v. E.I. DuPont

De Nemours and Co., 470 F.3d 1036, 1041-42 (11th Cir. 2006)).

Here, the same facts that preclude a finding of good cause to amend the scheduling order (see infra § III(A)(1)) weigh in favor of finding undue delay. Tolston had the citation containing Holland's name nearly two years before he filed suit, and in his October 2020 complaint, he referenced a report that described Holland's role in the arrest. Yet he waited until 16 months into the litigation before moving to add Holland in February 2022. Even if Tolston's claims against Holland related back under Rule 15(c) (which they do not), his undue delay in seeking amendment is an independent basis for denying the motion. See, e.g., Ocean Front Apartments, Inc. v. Wright Nat'l Flood Ins. Co., No. 22-12540, 2023 WL 4571959, at *1, 2023U.S. App. LEXIS 18139, at *2 (11th Cir. July 18, 2023) (stating that "[p]rejudice and relation back are irrelevant to the analysis" where plaintiff's undue delay warranted denial of leave to amend).

The Court does not consider Tolston's undue delay for purposes of its relation-back analysis. Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 553, 130 S.Ct. 2485, 177 L.Ed.2d 48 (2010) (noting that "diligence" is not a requirement for relation back under Rule 15(c)).

b. Relation Back (Rule 15(c))

There is yet another reason why Tolston may not amend: his claims against Holland do not relate back to the filing of his original complaint. Fed. R. Civ. P. 15(c). Tolston's complaint originally asserted claims against Wadsworth, "Officers John Doe 1-5," and "Officer Jane Doe 1[.]" (Compl., Doc. 1 at 1.) In its motion-to-dismiss order, the Court dismissed the John Doe and Jane Doe defendants on the ground that fictitious-party pleading is generally not permitted in federal court. (Doc. 29 at 6.) The Court further determined that Tolston's complaint failed adequately to describe the Doe defendants, as it lacked details about them and instead referred to them generically as "police officer[s] for the City of Atlanta" or "police Sergeant[s] for the City of Atlanta." (Id. at 8 (citing Compl. ¶¶ 6-11).) The Court stated that Tolston could not "assert claims now and hope to find a defendant later." (Id. at 9.)

According to Tolston, discovery revealed that Holland was one of the John Doe officers whose identity Tolston did not know when he filed the lawsuit. (Doc. 88 at 2.). Tolston seeks to assert the same claims against Holland as are asserted against Wadsworth. He proposes to sue Holland in both his individual and official capacities. (Doc. 88, Doc. 88-1.)

At the time Tolston filed his motion, the statute of limitation period for his claims against Holland had expired,

"Federal courts apply their forum state's statute of limitations for personal injury actions to actions brought pursuant to 42 U.S.C. § 1983." Lovett v. Ray, 327 F.3d 1181, 1182 (11th Cir. 2003). Federal courts also apply the forum state's "body of tolling rules unless it is inconsistent with the federal policy underlying the claim." Thomas v. Lee, 298 F. App'x 906, 908 (11th Cir. 2008) (citation omitted). In Georgia, the limitations period for personal injury claims is two years. O.C.G.A. § 9-3-33. But in response to the COVID-19 pandemic, the Georgia Supreme Court declared that "[t]he 122 days between March 14 and July 14, 2020, or any portion of that period in which a statute of limitation would have run, shall be excluded from the calculation of that statute of limitation." Fourth Order Extending Declaration of Statewide Judicial Emergency, Supreme Court of Georgia, https://www.gasupreme.us/wp-content/uploads/2020/07/4th-SJEO-FINAL.pdf (July 10, 2020).
Tolston's claims arose on the date of his arrest on October 14, 2018. Assuming the applicability of the 122-day tolling period, the limitations period expired on February 13, 2021. Tolston sought leave to file his amended complaint naming Holland on February 16, 2022 — more than a year after the statute of limitations period expired.

but Tolston argues that the claims relate back to the filing of his original complaint. Defendants argue that relation back is not appropriate here.

Rule 15(c) "governs when an amended pleading 'relates back' to the date of a timely filed original pleading and is thus itself timely even though it was filed outside an applicable statute of limitations." Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 541, 130 S.Ct. 2485, 177 L.Ed.2d 48 (2010). Under Rule 15(c)(1), as relevant here, an amendment to a pleading relates back to the date of the original pleading when:

(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading; or

(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:

(i) received such notice of the action that it will not be prejudiced in defending on the merits; and

(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.

Fed. R. Civ. P. 15(c)(1). It is Plaintiff's burden to show satisfaction of Rule 15(c).

Rule 15(c)(1) also permits relation back when "the law that provides the applicable statute of limitations allows relation back[.]" Fed. R. Civ. P. 15(c)(1)(A). Tolston, however, does not seek relation back pursuant to this provision.

In re Engle Cases, 767 F.3d 1082, 1119 n.37 (11th Cir. 2014) ("The party seeking leave to amend under Rule 15 bears the burden of establishing his entitlement to it[.]"); McLaughlin v. SLD Atlanta W., LLC, No. 1:17-CV-1265-CC, 2017 WL 9882669, at *3, 2017 U.S. Dist. LEXIS 232460, at *7 (N.D. Ga. Nov. 1, 2017) ("[E]ven if Plaintiff could establish the existence of a mistake, Plaintiff has not met her burden of showing that the other requirements of Rule 15(c)(1)(C) are met"); Wiand v. Sarasota Opera Ass'n, No. 8:10-CV-248-T-17MAP, 2011 U.S. Dist. LEXIS 109166, at *23 n.10 (M.D. Fla. July 11, 2011) ("[Plaintiff] bears the burden of proof to rebut a statute of limitations grounds by relation back under Rule 15(c).").

"Rule 15(c)(1)(B), at first glance, would seem to permit Plaintiff to add [new parties] as defendants, because Plaintiff's claims against those individuals arise from the same transaction or occurrence as detailed in Plaintiff's original Complaint." Presnell v. Ga. Bureau of Investigation, No. 4:10-CV-60-HLM, 2010 WL 11520595, at *2 (N.D. Ga. 2010)). But satisfying Rule 15(c)(1)(B) is not enough when a plaintiff's proposed amendment "does not add claims against parties already involved in the action, but, rather, seeks to add parties." Meredith v. McKesson Medical-Surgical, Inc., No. 1:20-cv-3280-MLB, 2021 WL 5140987, at *3 (N.D. Ga. Nov. 4, 2021) (quoting Evans v. Hanger Prosthetics & Orthotics, Inc., 735 F. Supp. 2d 785, 792 (N.D. Ohio 2010)). Instead, a plaintiff seeking to add a party must also satisfy Rule 15(c)(1)(C)'s requirements. Presnell, 2010 WL 11520595, at *2.

Defendants argue that Tolston cannot satisfy Rule 15(c)(1)(C)(i) because Holland did not receive notice of this lawsuit within the Rule 4(m) service period. They are correct. Tolston filed this lawsuit on October 13, 2020, and thus had until January 11, 2021, to effect service under the 90-day period prescribed in Rule 4(m). Tolston's motion argues that Holland was put on notice of this lawsuit because (1)

Holland was named in the October 2018 arrest citation, (2) Holland was interviewed by OPS after the arrest as part of the internal affairs investigation, and (3) Tolston advised Defendants' counsel of his intention to seek amendment on December 13, 2021.

Tolston's first two arguments shed no light on when Holland had notice of this lawsuit, as opposed to the underlying arrest. Tolston did not file this action until nearly two years after the arrest and subsequent OPS interview. Those events cannot be said to have given Holland notice of a lawsuit that did not yet exist at the time. See, e.g., Henley v. Payne, No. 4:18-CV-0029-HLM, 2020 WL 7251458, at *3, 2020 U.S. Dist. LEXIS 234851, at *7 (N.D. Ga. July 13, 2020) ("Although Mr. Pifer may have been present during Plaintiff's arrest and may have notice of the events that gave rise to this action, Rule 15(c)(1)(C) requires that he have notice of the action itself, not just the underlying events.").

The Court also finds unpersuasive Tolston's argument that informing Defendants' counsel of his intent to add Holland placed Holland on notice of this lawsuit. First, this alleged notice occurred in December 2021 — long after the 90-day service period expired in January 2021. See Fed. R. Civ. P. 15(c) (stating that the party to be added must have sufficient notice of the lawsuit "within the period provided by Rule 4(m) for serving the summons and complaint[.]"). Second, the relevant inquiry relates to Holland's notice of the original lawsuit, not the named defendants' (or their lawyers') notice of the proposed amendment. See, e.g., Castle v. Cobb Cnty., No. 1:19-CV-01406-JPB, 2022 WL 1569705, at *4, 2022 U.S. Dist. LEXIS 89743, at *11 (N.D. Ga. May 18, 2022), aff'd 2023 WL 3772501, 2023 U.S. App. LEXIS 13627 (11th Cir. June 2, 2023) ("The named Defendants may have been on notice that Plaintiff would amend her pleading, but this does not mean that Gunn and Brown were on notice of the original action.") (emphases in original). Counsel for the City and Wadsworth, moreover, have maintained that they do not represent Holland; as such, notice to counsel does not confer constructive notice upon Holland. See, e.g., Henley, 2020 WL 7251458, at *3, 2020 U.S. Dist. LEXIS 234851, at *7-8 ("The Court cannot presume that Mr. Pifer had notice of this case simply because Mr. Pifer and Defendant both worked for the Bartow County, Georgia Sheriff's Office and the same counsel represented Defendant and the Bartow County, Georgia Sheriff's Office."). The Court thus concludes that Tolston's claims against Holland do not relate back because there is no evidence that Holland had notice of the lawsuit within the Rule 4(m) period. Fed. R. Civ. P. 15(c)(1)(C)(i).

(Doc. 92 at 1 n.1.)

Even if Holland had sufficient notice of this lawsuit within the Rule 4(m) period, the proposed amendment would still not relate back because there has been no "mistake" concerning Holland's identity, as that term is understood in the context of Rule 15(c)(1)(C).

In Krupski v. Costa Crociere S. p. A ., the Supreme Court addressed Rule 15(c)'s relation-back provision. 560 U.S. 538, 130 S.Ct. 2485, 177 L.Ed.2d 48 (2010). In that case, the plaintiff sued a cruise line, naming as a defendant one business entity, Costa Cruise Lines, instead of the proper party, Costa Crociere S.p.A. ("Costa Crociere"). Id. at 543, 130 S.Ct. 2485. After the statute of limitations had run, the plaintiff sought leave to amend her complaint by adding the proper party, Costa Crociere. Id. The district court denied leave to amend, and the Court of Appeals affirmed, holding that relation back was not appropriate because "Krupski chose to sue one

potential party and not another even though the identity of both was known to her." 330 F. App'x 892, 895 (11th Cir. 2009). The Supreme Court reversed the Court of Appeals and "reject[ed] ... [its] reliance on the plaintiff's knowledge to deny relation back." 560 U.S. at 552, 130 S.Ct. 2485 (emphasis added). "The only question under Rule 15(c)(1)(C)(ii)[,]" according to Krupski, "is whether [the prospective defendant] knew or should have known that, absent some mistake, the action would have been brought against him." Id. at 549, 130 S.Ct. 2485. And in that case, "Costa Crociere should have known that Krupski's failure to name it as a defendant in her original complaint was due to a mistake concerning the proper party's identity." Id. at 557, 130 S.Ct. 2485.

Krupski thus clarifies that the relation-back inquiry should be made from the perspective of the to-be-added defendant. But it also makes clear that a "mistake" must have been made to trigger relation back. The Supreme Court defined the word "mistake" according to its dictionary definition: "[a]n error, misconception, or misunderstanding; an erroneous belief." Id. at 548, 130 S.Ct. 2485 (quoting Black's Law Dictionary 1092 (9th ed.2009)).

In determining whether a movant has made a "mistake" under Rule 15(c), courts in the Eleventh Circuit often look to a pre-Krupski case, Wayne v. Jarvis, 197 F.3d 1098 (11th Cir. 1999). In Wayne, the Eleventh Circuit stated that a "mistake," for Rule 15(c) purposes, was an "error, a misnomer, or a misidentification[.]" 197 F.3d at 1103, overruled on other grounds by Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003). With that definition in mind, the Eleventh Circuit considered whether a plaintiff could amend his complaint by adding as defendants deputy sheriff officers who were previously designated as "John Doe" defendants but whose names were discovered by the plaintiff after the statute of limitations had run. Id. at 1101. The Eleventh Circuit held that the amendment could not relate back because the plaintiffs "lack of knowledge regarding the identities of the deputy sheriffs was not a mistake concerning the identity of the proper party." Id. at 1103 (internal quotation marks omitted). The Eleventh Circuit "d[id] not read the word 'mistake' to mean 'lack of knowledge.'" Id. Wayne's "bright-line rule," Rodriguez v. Quinones, 508 F. Supp. 3d 1198, 1205 (S.D. Fla. 2020), thus provides that a plaintiff's failure to identify the name of a defendant he does not know at the time of filing his complaint is the result of his "lack of knowledge," not a "mistake" under Rule 15(c). 197 F.3d at 1103; see also Powers v. Graff, 148 F.3d 1223, 1226-27 (11th Cir. 1998) (Rule 15(c) "permits an amendment to relate back only where there has been an error made concerning the identity of the proper party and where that party is chargeable with knowledge of the mistake, but it does not permit relation back where there is a lack of knowledge of the proper party.") (emphasis in original) (citation omitted).

Although Wayne's plaintiff-focused analysis arguably is in some tension with Krupski's admonition that the "starting point" for the relation-back inquiry is the proposed defendant's knowledge, 560 U.S. at 548, 130 S.Ct. 2485, the "lack-of-knowledge" rule appears to be good law. In cases decided both before and after Krupski, the Eleventh Circuit has, albeit in unpublished opinions, applied the rule in instances where a plaintiff has sought to add a previously unknown defendant after the limitations period. The Eleventh Circuit has said that: "A plaintiff's amendment to identify parties previously designated as 'John Doe' defendants in the complaint does not relate back to the filing of the original complaint under Federal Rule of Civil Procedure 15 because the amendment is made to correct the plaintiff's

lack of knowledge about whom to sue, not a mistake by the defendant in identifying the proper party." Bloodworth v. United States, 623 F. App'x 976, 979 (11th Cir. 2015) (citing Wayne, 197 F.3d at 1103-04); Jones v. Ga. Dep't of Corr., 763 F. App'x 906, 907 (11th Cir. 2019) (citing Wayne, 197 F.3d at 1103-04) ("An amendment to substitute named officials for a fictitious defendant would not relate back, under Federal Rule of Civil Procedure 15(c), because the plaintiff lacked knowledge of the proper defendant when he filed his complaint."); Smith v. McMichael, 153 F. App'x 566, 569 (11th Cir. 2005) (citing Wayne, 197 F.3d at 1103) ("Smith admits that he does not know the identity of the U.S. Marshals. Because the statute of limitations has run, Smith cannot amend his complaint to add the names of the unknown marshals.").

See also Johnston v. Boyd, No. 1:16-CV-3305-LMM-JSA, 2019 WL 11502734, at *8 (N.D. Ga. Jan. 28, 2019) ("Because the statute of limitations expired four months before Plaintiff submitted his request, any amendment replacing the unknown RRT deputies with the named RRT deputies does not relate back under Rule 15(c)(1)."); Meredith, 2021 WL 5140987, at *3 (N.D. Ga. Nov. 4, 2021) ("The Eleventh Circuit explained that it does 'not read the word "mistake" to mean "lack of knowledge." For these purposes, ignorance does not equate to misnomer or misidentification.'"); Rodriguez v. Quinones, 508 F. Supp. 3d 1198, 1206 (S.D. Fla. 2020) ("[T]he Court finds that Plaintiff has not made a 'mistake' as that term is contemplated by Rule 15(c)(1)(C)(ii) in failing to name Officer Casey in the original Complaint."); Presnell, 2010 WL 11520595, at *3 (N.D.) ("Plaintiff seeks to add new defendants, not to correct a mistake, but instead to incorporate information that Plaintiff lacked at the beginning of this lawsuit. Under those circumstances, the proposed amendments adding Mr. Keegan and Mr. Schmall as Defendants would not relate back to the filing of the Complaint."); Lee v. Lecroy, No. 1:12-CV-3041-TWT-JFK, 2013 U.S. Dist. LEXIS 184025, at *13 (N.D. Ga. Dec. 13, 2013) (Under Wayne, "a belated identification of a previously unidentified party cannot relate back to the original complaint under Rule 15(c) in order to avoid a statute of limitations problem.").

Turning to this case, Holland was designated in Tolston's complaint as "a 'John Doe' defendant[,]'" Wayne, 197 F.3d at 1103, because Holland's identity was allegedly "unknown" to Tolston, and Tolston "did not have [his] name[]." (Doc. 88 at 6-7.) In other words, Tolston failed to name Holland in the complaint because of his "lack of knowledge regarding [Holland's] identit[y.]" Wayne, 197 F.3d at 1103. Tolston's attempt to add Holland in place of the John Doe defendant therefore cannot relate back because a "lack of knowledge" is "not a mistake concerning the identity of the proper party" under Rule 15(c). Id. (internal quotation marks omitted). Because Tolston's amendment does not relate back, his claims against Holland are time-barred.

For the reasons stated above, Tolston's motion to amend the complaint to add Officer Holland as a defendant (Doc. 88) is DENIED.

B. Motion to Join Holland as an Indispensable Party (Rule 19)

On September 12, 2023, Tolston filed another motion to add Holland as a defendant — this time a motion to join him as an indispensable party under Rule 19 of the Federal Rules of Civil Procedure. (Doc. 208.) Tolston argues that Holland's joinder is vital to the success of his claims and that he will be prejudiced if Holland is not made a party to this case.

"Rule 19 requires the joinder of non-parties in cases where their presence is necessary to achieve a complete and equitable resolution of the action." Fastcase, Inc. v. Lawriter LLC, No. 1:17-CV-414-TCB, 2019 WL 13210381, at *1 (N.D. Ga. May 13, 2019). Rule 19 states in pertinent part: (1) Required Party. A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if:

(A) in that person's absence, the court cannot accord complete relief among existing parties; or

(B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may:

(i) as a practical matter impair or impede the person's ability to protect the interest; or

(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.

Fed. R. Civ. P. 19(a)(1).

Under Rule 19,

[f]irst, the court must determine whether the person in question should be joined. If the person should be joined, but for some reason cannot be, the court must analyze the factors outlined in Rule 19(b) to determine whether "in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person thus regarded as indispensable."

Laker Airways, Inc. v. Brit. Airways, PLC, 182 F.3d 843, 847 (11th Cir. 1999) (citing Fed. R. Civ. P. 19).

Tolston's Rule 19 motion will be denied for several reasons. First, Holland is not a "required party" under Rule 19 because the Court can "accord complete relief among existing parties" without him. Fed. R. Civ. P. 19(a)(1). Importantly, "[t]he 'complete' relief concept of Rule 19(a)(1) refers to relief as between the persons already parties, not as between a party and the absent party whose joinder is sought." Fid. Nat'l Title Ins. Co. v. Etwaroo, No. 1:21-CV-2002-SCJ, 2022 WL 822357, at *6 (N.D. Ga. Jan. 25, 2022) (internal quotation marks omitted and alteration adopted); see also Davis Companies v. Emerald Casino, Inc., 268 F.3d 477, 484 (7th Cir. 2001) ("[T]he term 'complete relief refers only to relief between the persons already parties, and not as between a party and the absent person whose joinder is sought.") (internal quotation marks omitted).

Second, the fact that Tolston could have sued Holland does not make him a "required party" under Rule 19(a)(1). See, e.g., Folsom v. LG Elecs. U.S.A., Inc., No. 1:09CV01471JOF, 2009 WL 3365927, at *2 (N.D. Ga. Oct. 19, 2009) ("While HH Gregg [the absent party] ... may have played a role in this incident, the fact that Plaintiff could sue HH Gregg does not make the company 'necessary' as defined by Rule 19 because Rule 19 does not require that all tortfeasors be joined in one action.") (emphasis in original).

Third, in determining if a party is "required," "pragmatic concerns, especially the effect on the parties and the litigation, control." Focus on the Fam. v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1280 (11th Cir. 2003) (internal quotation marks and citation omitted). Here, pragmatic concerns weigh against joining Holland. The Rule 19 motion was filed long after discovery closed and nearly five years after Tolston's arrest. Plaintiff argues that he wants to depose Holland and seek discovery from him, but a litigant need not name a person as a defendant to depose him, and nothing prevented Tolston from deposing Holland or seeking discovery related to him earlier in the case. The motion is also untimely under the scheduling

Tolston noticed Holland's deposition (Doc. 89), but he says that it never occurred. (Doc. 208 at 7.) It is unclear why. Tolston blames Defendants' "unwillingness to facilitate [Holland's] deposition," (Doc. 211 at 5), while Defendants argue that Tolston "did not pursue" the deposition after filing the notice (Doc. 209 at 5). No motion to compel Holland's deposition was filed.

order and Plaintiff has not shown good cause for the delayed filing.

In sum, Holland is not a required party under Rule 19, adding Holland would cause pragmatic difficulties, and the motion was untimely when filed. Plaintiff's Rule 19 motion (Doc. 208) is DENIED.

IV. Defendants' Motions for Summary Judgment (Doc. 140 and 141)

The three defendants remaining in this case are Officer Wadsworth (an arresting officer), Chief Bryant (former APD Chief of Police), and the City of Atlanta. Officers Wadsworth and Chief Bryant filed a joint motion for summary judgment. (Doc. 141.) The City of Atlanta filed a separate motion for summary judgment. (Doc. 140.) The Court adjudicates those motions below.

Investigators Battle and Walton join the motion for summary judgment, but Tolston previously sought to dismiss them as defendants and his summary judgment response makes no argument as to either of them. (Doc. 172.) The Court has accordingly granted summary judgment as to Battle and Walton (see supra § III).

Tolston filed a motion for leave to file a reply to Defendants' responses to Tolston's additional statement of material facts, (Doc. 199), but he subsequently filed a motion to withdraw that motion (Doc. 233). Tolston's motion to withdraw (Doc. 233) is GRANTED, and his motion for leave to file a reply (Doc. 199) is WITHDRAWN.

A. Legal Standard

Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A party seeking summary judgment has the burden of informing the district court of the basis for its motion and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions," and cannot be made by the district court in considering whether to grant summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999).

If a movant meets its burden, the party opposing summary judgment must present evidence demonstrating a genuine issue of material fact or that the movant is not entitled to judgment as a matter of law. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. In determining whether a genuine issue of material fact exists, the evidence is viewed in the light most favorable to the party opposing summary judgment, "and all justifiable inferences are to be drawn" in favor of that opposing' party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505; see also Herzog v. Castle Rock Entertainment, 193 F.3d 1241, 1246 (11th Cir. 1999). A fact is "material" only if it can affect the outcome of the lawsuit under the governing legal principles. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A factual dispute is "genuine" if the evidence would permit a reasonable jury to return a verdict for the nonmoving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. "If the record presents factual issues, the court must not decide them; it must deny the motion and proceed to trial." Herzog, 193 F.3d at 1246.

In determining whether to grant qualified immunity on a motion for

summary judgment, "courts must construe the facts and draw all inferences in the light most favorable to the nonmoving party[,] and 'when conflicts arise between the facts evidenced by the parties, we credit the nonmoving party's version.'" Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006) (emphasis omitted) (quoting Evans v. Stephens, 407 F.3d 1272, 1277 (11th Cir. 2005) (en banc)). "Although the 'facts,' as accepted for purposes of summary judgment, may not be the actual facts of the case, 'our analysis ... must begin with a description of the facts in the light most favorable to the plaintiff' and our decision must accept those facts." Feliciano v. City of Miami Beach, 707 F.3d 1244, 1247 (11th Cir. 2013) (quoting Davis, 451 F.3d at 763).

Where there is video evidence in the record, and that video "obviously contradicts the nonmovant's version of the facts, [a court] accept[s] the video's depiction instead of the nonmovant's account and view[s] the facts in the light depicted by the videotape." Shaw v. City of Selma, 884 F.3d 1093, 1098 (11th Cir. 2018) (citations omitted) (alterations accepted). In such cases, a court will "accept facts clearly depicted in a video recording even if there would otherwise be a genuine issue about the existence of those facts." Id. at 1097 n.1 (citing Scott v. Harris, 550 U.S. 372, 380-81, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)).

B. Claims Against Officer Wadsworth 1. Section 1983 Claims

Pursuant to 42 U.S.C. § 1983, Plaintiff asserts the following claims against Officer Wadsworth in his individual capacity: (1) Fourth Amendment false arrest (Count 7), (2) Fourth Amendment excessive force (Count 1), (3) First Amendment retaliation (Count 9), and (4) Fourth Amendment malicious prosecution (Count 15). Defendants argue that Wadsworth is entitled to qualified immunity on all § 1983 claims.

Count 17 of Tolston's complaint asserts a "Section 1983 negligent hiring/failure to supervise and train claim" against "all Defendants." (Doc. 1 at 58.) But Tolston's summary judgment briefing indicates that this claim relates only to the City of Atlanta and its alleged policies and practices. Tolston's "negligent hiring/failure to supervise" claim is therefore discussed below in the context of his municipal liability claims.

Qualified immunity "offers complete protection for government officials sued in their individual capacities if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Grider v. City of Auburn, Ala., 618 F.3d 1240, 1254 (11th Cir. 2010) (quotations omitted). "The purpose of this immunity is to allow government officials to carry out their discretionary duties without the fear of personal liability or harassing litigation, protecting from suit all but the plainly incompetent or one who is knowingly violating the federal law." Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (internal quotation marks and citations omitted).

To receive qualified immunity, a government official "must initially establish that he was acting within his discretionary authority when the alleged wrongful acts occurred." Richmond v. Badia, 47 F.4th 1172, 1179 (11th Cir. 2022). If he does so, "the burden shifts to the plaintiff to establish that qualified immunity is inappropriate." Id. The plaintiff must show that: (1) "the official's alleged conduct violated a constitutionally protected right[,]" and (2) "the right was clearly established at the time of the misconduct." Id.

Tolston argues that the Court should "endorse a modified view of qualified immunity" that denies immunity to police officers who spoliate evidence of an alleged constitutional violation. (Doc. 172 at 13.) The alleged "spoliation" here is Wadsworth's deactivation of his BWC for periods of time following the initial interaction with Tolston. Failing to record an incident is not the same thing as spoliating evidence. Even if this case did involve spoliation, Tolston has not cited any authority for his proposed modified approach to qualified immunity, and the Court will not adopt it.

Though the Court "may begin the qualified immunity inquiry with either the constitutional question or the question of whether the violation was clearly established, the Supreme Court has admonished us to 'think hard, and then think again' before addressing the merits of the constitutional claim." Washington v. Warden, 847 F. App'x 734, 737 (11th Cir. 2021) (quoting District of Columbia v. Wesby, 583 U.S. 48, 62 n.7, 138 S.Ct, 577, 199 L.Ed.2d 453 (2018)). The Court must "begin—and ultimately end—[its] analysis with the issue of whether the alleged constitutional violations here were contrary to clearly established law." Id.

a. Whether Officer Wadsworth was Acting Within His Discretionary Authority

Tolston argues that Officer Wadsworth did not act within his discretionary authority when he allegedly violated Tolston's constitutional rights. See Harbert Int'l v. James, 157 F.3d 1271, 1281 (11th Cir. 1998). The discretionary authority inquiry requires Wadsworth to show that, at the time of the alleged constitutional violations, he was "(a) performing a legitimate job-related function (that is, pursuing a job-related goal), (b) through means that were within his power to utilize." Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1266-67 (11th Cir. 2004). "[A] government official can prove he acted within the scope of his discretionary authority by showing objective circumstances which would compel the conclusion that his actions were undertaken pursuant to the performance of his duties and within the scope of his authority." Est. of Cummings v. Davenport, 906 F.3d 934, 940 (11th Cir. 2018) (quoting Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir. 1988)) (internal quotation marks omitted). When determining the scope of discretionary authority, a court looks to the general nature of a defendant's action, not the specific unconstitutional conduct. Holloman, 370 F.3d at 1266.

In its motion-to-dismiss order, the Court already determined that Tolston "d[id] not and could not — dispute that Defendant Wadsworth acted within his discretionary authority when he forcibly arrested Plaintiff at Piedmont Park." (Doc. 29 at 11.) The Court nevertheless addresses Plaintiff's summary-judgment argument on this issue here.

Generally speaking, the act of arresting a suspect is part of a police officer's job-related powers and responsibilities. See e.g., Stephens v. DeGiovanni, 852 F.3d 1298, 1314 (11th Cir. 2017); Valentine v. Robinson, 601 F. App'x 778, 781 (11th Cir. 2015). Tolston argues, however, that Wadsworth was not "pursuing his job-related goals [] in an authorized manner" when he arrested Tolston, Holloman, 370 F.3d at 1266, because Wadsworth was working an unapproved, "extra job" at the time.

True, Wadsworth did not obtain an extra-job permit prior to working at the Pride Festival, which was apparently a violation of APD policy. (OPS Memo, Doc. 173-15 at 5-6; Doc. 194, Defs.' Resp. to Pl. Add'l SOMF ¶¶ 10, 13.) But the Eleventh Circuit has stated that "[a]n officer may act within his discretionary function even when he is off-duty or when his conduct possibly violates a department policy." Gaillard v. Commins, 562 F. App'x 870, 873 (11th Cir. 2014) (finding that a police officer "easily me[t]" the Holloman discretionary-authority test when he joined a police chase of a fleeing suspect, even though the officer was off duty and his

pursuit "may have violated an internal police department rule"); see also Maughon v. City of Covington, 505 F. App'x 818, 822 (11th Cir. 2013) (officer was acting within his discretionary authority when he made an arrest outside his jurisdiction); Kesinger ex rel. Est. of Kesinger v. Herrington, 381 F.3d 1243, 1246, 1248 (11th Cir. 2004) (officer acted within his discretionary authority when he intervened in an apparent suicide attempt while on his way to work). The key question under Holloman is whether the defendant-official was pursing a job-related goal "through means that fall outside the range of discretion that comes with [the official's] job." Holloman, 370 F.3d at 1267. Here, at the time of Tolston's arrest, Wadsworth was in full uniform and on patrol in a public park. The decision to arrest fell within the range of discretion that comes with a police officer's official duties "to preserve public order" and "to maintain the peace[.]" Valentine v. Bush, No. 2:10-CV-00097-RWS, 2014 WL 3565688, at *7 (N.D. Ga. July 18, 2014), aff'd sub nom. Valentine v. Robinson, 601 F. App'x 778 (11th Cir. 2015); see also Ellison v. Hobbs, 786 F. App'x 861, 873 (11th Cir. 2019) (citing O.C.G.A. § 45-9-81(7) and stating that that maintaining safety "is a classic police activity and well within the officer['s] job responsibilities and discretionary authority."). Wadsworth was acting within the scope of his discretionary authority when the allegedly unconstitutional conduct occurred.

b. Fourth Amendment False Arrest Claim

The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend IV. Arrests are "seizures" of "persons" and must be reasonable under the circumstances. Wesby, 583 U.S. at 56, 138 S.Ct. 577. "A warrantless arrest is reasonable if the officer has probable cause to believe that the suspect committed a crime in the officer's presence." Id. Probable cause exists when "the facts, considering the totality of the circumstances and viewed from the perspective of a reasonable officer, establish 'a probability or substantial chance of criminal activity.'" Washington v. Howard, 25 F.4th 891, 898-99 (11th Cir. 2022) (quoting Wesby, 583 U.S. at 57, 138 S.Ct. 577). "Probable cause does not require conclusive evidence and 'is not a high bar.'" Id. at 899 (quoting Wesby, 583 U.S. at 57, 138 S.Ct. 577).

"While an officer who arrests an individual without probable cause violates the Fourth Amendment, this does not inevitably remove the shield of qualified immunity." Shop v. City of Atlanta, 485 F.3d 1130, 1137 (11th Cir. 2007). An officer is not automatically liable for making an arrest that, "when seen with the benefit of hindsight, turns out not to have been supported by probable cause." See id. In the context of § 1983 false arrest claims, "an officer need not have actual probable cause, but only 'arguable' probable cause" to be entitled to qualified immunity. Garcia v. Casey, 75 F.4th 1176, 1186 (11th Cir. 2023) (citation omitted). "[A]rguable probable cause exists where 'a reasonable officer, looking at the entire legal landscape at the time of the arrests, could have interpreted the law as permitting the arrests.'" Edger v. McCabe, 84 F.4th 1230, 1236-37 (11th Cir. 2023) (quoting Garcia, 75 F.4th at 1186). The Eleventh Circuit recently clarified that "the arguable probable cause inquiry in a false arrest case is no different from the clearly established law inquiry[.]" Garcia, 75 F.4th at 1187. That is, in the § 1983 false arrest context, "if we conclude that the officers had arguable probable cause then we conclude that their violation of the law was not clearly established and vice-versa." Edger, 84 F.4th at 1236. The arguable probable cause standard "recognizes that law enforcement officers may

make reasonable but mistaken judgments regarding probable cause but does not shield officers who unreasonably conclude that probable cause exists." Skop, 485 F.3d at 1137.

Determining whether an arresting officer has either actual or arguable probable cause to arrest "depends on the elements of the alleged crime and the operative fact pattern." Edger, 84 F.4th at 1237 (internal quotations omitted); Skop, 485 F.3d at 1137-38. "Probable cause for an arrest may be found if there is probable cause to believe any crime was committed, whether or not there is probable cause for the crime the arresting officer actually believed had been committed." Manners v. Cannella, 891 F.3d 959, 969 (11th Cir. 2018). Probable cause is a "fluid concept" that "deals with probabilities and depends on the totality of the circumstances[.]" Wesby, 583 U.S. at 57, 138 S.Ct. 577.

i. Constitutional Violation

Defendants argue that there was probable cause to arrest for (1) "disorderly conduct," (2) "obstruction of a peace officer", and (3) "public intoxication." (Doc. 141-1 at 20.) Their summary judgment brief does not provide legal citation for the above-listed offenses. It is therefore unclear whether Defendants assert that Wadsworth had probable cause to arrest under state law, city ordinance, or both. Defendants' reply brief does cite to O.C.G.A. § 16-11-39 (defining disorderly conduct under state law) and lists two cases interpreting the state-law offense of obstruction (Doc. 185 at 14 n.3). But there is no discussion in Defendants' briefing of the elements of any of the offenses — either in their state-law or city-ordinance incarnations.

As the Court is left with uncertainty as to the precise contours of Defendants' argument, it will conduct the probable-cause analysis first with reference to the state statutes governing disorderly conduct, obstruction, and public intoxication and, where relevant, through the framework of their city-ordinance counterparts. If probable cause existed as to any of these offenses, Wadsworth is entitled to qualified immunity. Manners, 891 F.3d at 969 ("[P]robable cause need only exist for one offense to justify [plaintiff's] warrantless arrest[.]"). In conducting the analysis below, the Court is cognizant of the fact that "[s]howing arguable probable cause does not ... require proving every element of a crime." Brown v. City of Huntsville, Ala., 608 F.3d 724, 735 (11th Cir. 2010); see also Gates v. Khokhar, 884 F.3d 1290, 1300 (11th Cir. 2018) (same).

a. Disorderly Conduct

Defendants contend that probable cause existed to believe that Tolston engaged in disorderly conduct. "[A] person commits the offense of disorderly conduct" when he "[a]cts in a violent or tumultuous manner toward another person whereby such person is placed in reasonable fear of the safety of such person's life, limb, or health[.]" O.C.G.A. § 16-11-39(a)(1). A person acts in a "tumultuous" manner when he "acts in a disorderly, turbulent, or uproarious manner toward another person, which places the other person in reasonable fear for his or her safety." Freeman v. State, 302 Ga. 181,805 S.E.2d 845, 849 (2017). A person acts "violent[ly]" when, for example, he uses threatening language and engages in threatening conduct toward others. As applied to expressive conduct,

While federal law provides the standards governing probable cause, Georgia law defines the substantive elements of the alleged offenses. See Hardigree v. Lofton, 992 F.3d 1216, 1230-31 (11th Cir. 2021).

See, e.g., Haygood v. State, 338 Ga.App. 189, 789 S.E.2d 404, 406-07 (2016) (affirming disorderly conduct conviction where there was evidence from which a jury could infer that defendant used threatening language while holding a knife); Mayhew v. State, 299 Ga.App. 313, 682 S.E.2d 594, 597 (2009) (affirming disorderly conduct conviction where defendant "g[ot] in [victim's] face, point[ed] with a finger and call[ed] her a bitch and a whore, ask[ed] who she was sleeping with, and accus[ed] her of forging signatures").

the disorderly conduct statute only reaches expressions that are equal to "fighting words" or "true threat[s]" sufficient to place another person in reasonable fear for his safety. Freeman, 805 S.E.2d at 849-50. Statements to a police officer may be "fighting words," for example, where they are accompanied by "physical threats or insults to the officer, some aggressive conduct..., or other aggravating circumstances...." Knowles v. State, 340 Ga. App. 274, 797 S.E.2d 197, 204 (2017). Statements that are merely rude or offensive, however, tend not to be considered fighting words, so long as they are unaccompanied by "other less expressive and more threatening conduct." Freeman, 805 S.E.2d at 850-51 (holding that the act of raising a middle finger to a pastor in church did not constitute a true threat equaling "tumultuous" conduct in violation of the disorderly conduct statute); see also Johnson v. DeKalb Cnty., Ga., 391 F. Supp. 3d 1224, 1243 (N.D. Ga. 2019) (finding no arguable probable cause to arrest plaintiff for disorderly conduct, even where the litigant "belittle[ed]" police officers and cursed at them).

Defendants argue that a reasonable officer viewing the totality of the circumstances could consider that Tolston engaged in disorderly conduct based on his "physical contact with the officers," his "apparent alcohol use," and his "uncooperative attitude." (Doc. 185 at 14.) They say that Tolston got "up in Holland's face" and put his hands on Holland. (Defs.' SOMF, Doc. 141-2 ¶ 11, 16.) They further urge the Court to consider the relevant context, including that the incident took place in a "dark and crowded area." (Doc. 185 at 14.) If the facts were as Defendants convey them, then the officers had probable cause to arrest for disorderly conduct — no question about it.

The difficulty for Defendants' position is that Plaintiff tells a different version of the facts. Construed in Tolston's favor, the relevant facts were as follows. Tolston was leaving the park at dusk. (Tolston Dep., Doc. 149-1 at 67:8-19.) He was walking down a hill with his electric scooter in one hand and a bottle of Bud Light in the other. (Id.) His "shoulder made contact with [Holland]." (Id.; Pl. Resp. to Defs.' SOMF, Doc. 170 ¶ 1.) He "immediately put [his] hand up ... and [he] said, 'Sorry,'[]." (Tolston Dep., Doc. 149-1 at 67:12-19; Pl. Resp. to Defs.' SOMF, Doc. 170 ¶ 3.) Officer Holland then stopped and responded, "What the fuck is your problem?" (Tolston Dep., Doc. 149-1 at 68:3-11.) Before Tolston said anything further, Holland "grabbed the Bud Light" and poured it out. (Id.) Tolston asked the officers "What's going on?" to which Holland replied, "Keep it fucking moving." (Id. at 68:13-15; Pl. Resp. to Defs.' SOMF, Doc. 170 ¶ 8.) Tolston said, "Why are you treating me like that?" (Tolston Dep., Doc. 149-1 at 68:14-17; Pl. Resp. to Defs.' SOMF, Doc. 170 ¶ 13.) Holland said "That's it," and the "next thing [Tolston] kn[e]w, I'm slammed on the ground." (Tolston Dep., Doc. 149-1 at 68:14-17.) He lost consciousness. (Id. at 78:16-20.) He was then handcuffed and detained. (Id. at 84:7-11.)

Defendants contend that Plaintiff also asked: "Why are you being mean to me?" (Defs.' SOMF, Doc. 141-2 ¶ 15; Wadsworth Dep., Doc. 153-1 at 38:1-4.)

It is not the Court's role to assess credibility here, and the Court leaves all such

matters to the jury. When viewing the evidence in the light most favorable to Plaintiff, the Court concludes that Wadsworth lacked probable cause to believe that Tolston acted in a "violent or tumultuous manner" such that anyone was "placed in reasonable fear of the safety of such person's life, limb, or health[.]" O.C.G.A. § 16-11-39(a)(1). This is so for several reasons.

First, the Court considers the context in which the incident occurred. It happened at dusk at an outdoor festival with many people in attendance. The parties agree that it was "crowded." (Doc. 185 at 14; Doc. 172 at 20.) It would not be unusual for some amount of inadvertent jostling to occur amongst festivalgoers at a well-attended, outdoor celebration. As for Tolston's possession of a beer bottle, this fact must be considered, but so too must the fact that this was a festival at which the City authorized vendors to sell alcohol to festival patrons.

Wadsworth's BWC footage shows multiple individuals holding what appear to be alcoholic beverages while standing in the vicinity of Tolston's arrest. (See, e.g., Wadsworth BWC 1, Pl. Exh. 11 at 00:09-00:30.)

Second, when viewed in the light most favorable to Plaintiff, the initial contact or "bump" between Tolston and Holland would not have caused a reasonable officer to conclude that there was a substantial chance of criminal activity. Defendants' statement of facts says that Tolston "ran into ... Holland with his shoulder" while carrying a beer. (Defs.' SOMF, Doc. 141-2 ¶ 1.) Tolston characterizes the contact as "incidental." (Pl. Resp. to Defs.' SOMF, Doc. 170 ¶ 1.) Taking Tolston's characterization of the facts, the "bump" would not have put a reasonable person in fear for his life, limb, or health. That is especially so given that Tolston immediately apologized to Holland, calling out "Sorry." (Pl. Resp. to Defs.' SOMF, Doc. 170 ¶ 3.)

Third, while Defendants frame Tolston's questions and failure to "keep it moving" as evincing an "uncooperative attitude," (Doc. 185 at 13-14), the law is clear that "[s]imple inquir[ies]" as to the reasons for an officer's actions "do not constitute ... disorderly conduct." Davis v. Williams, 451 F.3d 759, 766-67 (11th Cir. 2006) (holding that officer lacked arguable probable cause to arrest plaintiff under a similar disorderly conduct statute where plaintiff yelled and inquired as to why police officers were on his property but "did not make any threatening remarks") (internal quotation marks omitted); Wilkerson v. Seymour, 736 F.3d 974, 978-979 (11th Cir. 2013) (police officers may not arrest "disagreeable individuals" simply because they "may be exercising their constitutionally protected rights to free speech, albeit in a loud manner"). Defendants do not contend that Tolston's questions ("What's going on?" and Why are you treating me like that?") were unprotected "fighting words" or "true threats." Nor would such a characterization be supported by law. Even if Tolston failed immediately to heed Holland's move-on order, as Defendants say he did, ignoring such a command does not amount to disorderly conduct if it did not place a person "in reasonable fear of the safety of

"The First Amendment 'protects a significant amount of verbal criticism and challenge directed at police officers.'" Skop, 485 F.3d at 1139; (quoting City of Houston, Tex. v. Hill, 482 U.S. 451, 461-63, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987)); see also Lamar v. Banks, 684 F.2d 714, 718 n.13 (11th Cir. 1982) (police officers are "trained to exercise a higher degree of restraint than the average citizen" and are "expected to absorb a certain amount of abuse without retaliating"); Carr v. Cadeau, 658 F. App'x 485, 489 (11th Cir. 2016) (no arguable probable cause to arrest plaintiff where she responded to officer's command by saying "what the fuck" and "I live here" and posed no threat to others).

such person's life, limb, or health[.]" O.C.G.A. § 16-11-39(a)(1).

See e.g., Dudley v. State, 264 Ga.App. 845, 592 S.E.2d 489, 490-91 (2003) (reversing disorderly conduct conviction where defendant was "loud, cursing, and angry," "kept walking away from the [] officer, saying he did not have to cooperate," and refused an officer's command to stop cursing, because he did not cause the officer to fear for his safety); Johnson, 391 F. Supp. 3d at 1243 (finding no arguable probable cause to arrest § 1983 plaintiff for disorderly conduct even though plaintiff "ignore[ed] Officer Fulton's commands to stop using profanity").

Defendants state that Tolston was "up in Holland's face" during the interaction, and that Tolston placed his hands on Holland before he was arrested. (Defs.' SOMF, Doc. 141-2 ¶¶ 11, 13, 16.) If Tolston did these things, then the officers had probable cause to arrest. But Tolston disputes that he was "up in Officer Holland's face." (Doc. 170 ¶ 13.) And the allegation that Tolston grabbed Holland is contested.

Defendants argue that Tolston admitted to placing his hands on Holland. (Doc. 185 at 6.) They point to the following response by Tolston to the Defendants' statement of material facts:
[SOMF 16:] Officer Wadsworth testified he initiated the arrest after seeing Tolston place his hands on Officer Holland toward the end of the 30-second monologue while Officer Holland was attempting to escort him out of the park. (Wadsworth Dep., 24:7-13).
PLAINTIFF'S RESPONSE: Plaintiff objects to the characterization of "30-second monologue" but admits the fact as otherwise stated.
(Pl. Resp. to Defs.' SOMF, Doc. 170 ¶ 16.) But Plaintiff here is not admitting that he placed his hands on Holland. He is admitting that "Officer Wadsworth testified" that he saw Tolston place hands on Holland. That is a crucial distinction. Tolston disputes that he placed his hands on Holland. See Tolston Dep., Doc. 149-1 at 82:14-17 (Q: Now once Officer Holland placed his hand on you, did you place your hand on Officer Holland? A: No.); id. at 82:18-84:1; (see also Pl. Sur-Reply to Individual Defs.' Mot. for Summary Judgment, Doc. 190 at 6.)

The trier of fact may later credit Wadsworth's account over Tolston's, but at summary judgment, the Court must conduct its analysis pursuant to Tolston's "version of the facts." Williams v. Aguirre, 965 F.3d 1147, 1168 (11th Cir. 2020); Kingsland v. City of Miami, 382 F.3d 1220, 1228-31 (11th Cir. 2004). The Court has considered the facts enumerated above not just in isolation from one another, but as a coherent whole, taking into account the full context of the incident. Having done so, the Court finds that no reasonable officer could conclude, considering "the whole picture" and "the totality of the circumstances," that there was "a substantial chance" that Tolston engaged in disorderly conduct in violation of O.C.G.A. § 16-11-39(a)(1). Wesby, 583 U.S. at 57, 60, 138 S.Ct. 577.

Defendants cite to Anthony v. Coffee County, 579 F. App'x 760 (11th Cir. 2014), arguing that "the context of the incident," id. at 766, weighs in favor of finding probable cause. But the facts of Anthony differ from this case. In Anthony, a police officer had probable cause to arrest the plaintiff for disorderly conduct after the officer came upon the scene after a large fight had broken out. Id. at 762. The officer had a contentious interaction with the plaintiff, and reasonably feared for his safety because "it was late at night and a fight involving 200 people had just ended" and "[the officer] did not know if Anthony was armed[.]" Id. at 766. The context here was an outdoor festival, not the scene of a fight. And while it was dusk when Tolston was arrested, a jury could conclude from Holland's and Wadsworth's body-camera footage that the area was reasonably well lit.

Although Defendants have not argued this point, the Court also concludes that no reasonable officer considering the facts above could have found probable cause to arrest Tolston under the City of Atlanta's "Disorderly While Under the Influence" ordinance, ATLANTA, GA., CODE

§ 10-9. That ordinance contains six subsections. Subsection (1), which appears potentially the most relevant, makes it unlawful for a person to "act[] in a reckless manner so as to create an unreasonable risk of harm to himself, to other persons or to property in the vicinity while under the influence of alcohol or drugs." ATLANTA, GA., CODE § 10-9.1.

The arresting officers cited Tolston under this ordinance. The Court thus deems it prudent to consider the ordinance, even though Defendants make no mention of it in their briefing.

Again, viewing the facts in the light most favorable to Tolston, no reasonable officer could interpret the ordinance to permit Tolston's arrest under it. In Tolston's telling, the physical contact made with Holland was an accidental shoulder bump at a crowded festival, for which Tolston immediately apologized. After an officer poured out his drink, he asked the officer: "What's going on?" and "Why are you treating me like that?" Even assuming that a reasonable officer could infer that Tolston was "under the influence," § 10-9.1, no reasonable officer could conclude that Tolston acted in a manner sufficiently reckless to create an "unreasonable risk of harm" to himself or others. For the reasons discussed above, the pertinent facts, viewed in the light most favorable to Tolston, could not permit a reasonable officer to find probable cause to arrest under Atlanta's "Disorderly While Under the Influence" ordinance.

b. Obstruction

Defendants contend that there was probable cause to arrest Tolston for obstruction. O.C.G.A. § 16-10-24(a) provides that "a person who knowingly and willfully obstructs or hinders any law enforcement officer ... in the lawful discharge of his or her official duties shall be guilty of a misdemeanor." "To consummate an offense of misdemeanor obstruction, some form of knowing and wilful opposition to the officer sufficient to constitute obstruction or hinderance is required, but actual violence or threat thereof is not." Weidmann v. State, 222 Ga.App. 796,476 S.E.2d 18, 20 (1996). While refusal to comply with an officer's command can, in some circumstances, constitute obstruction, a violation does not occur unless there has been some interference with an officer's performance of his duties. See, e.g., Vassilev v. City of Johns Creek, No. 1:14-cv-0312-LMM, 2015 WL 12591737, at *7 (N.D. Ga. Sept. 29, 2015) (finding no arguable probable cause to arrest plaintiff for obstruction because, under plaintiff's version of events, he was not "interfering with any investigation."). A person does not obstruct a police officer, for instance, when he "d[oes] nothing more than fail to respond immediately to [the officer's] order[.]" Coley v. State, 178

Here again, the Court is left to guess at the contours of Defendants' qualified immunity argument. Defendants refer to "misdemeanor obstruction" without citing to a code section. They could be invoking O.C.G.A. § 16-10-24(a). Or they may be referring to the ordinance under which Tolston was cited. See ATLANTA, GA., CODE § 106-81.7 ("It shall be unlawful ... to: Interfere, by acts of physical obstruction, [with] another's pursuit of a lawful occupation."). The Court cannot tell, and there is no discussion of the elements of either offense. In any event, viewing the evidence in the light most favorable to Tolston, no reasonable officer could consider that Tolston engaged in "physical" obstruction of anyone's pursuit of a lawful occupation. § 106-81.7.

See e.g., Council v. State, 291 Ga.App. 516, 662 S.E.2d 291, 293 (2008) (affirming obstruction conviction where defendant refused an officer's repeated demands to remain in his vehicle during a traffic stop); Lebis v. State, 302 Ga. 750, 808 S.E.2d 724, 734 (2017) ("Flight after a lawful command to halt constitutes obstruction of an officer.").

Ga.App. 668, 344 S.E.2d 490, 491 (1986) (reversing obstruction conviction where defendant ignored a police officer's orders "to move away from [defendant's] truck" but did not "obstruct[] or hinder[] [the officer] in any way in the performance of his duty"); see also WBY, Inc. v. DeKalb County, Georgia, 695 F. App'x 486, 493 (11th Cir. 2017) ("[T]he simple fact that Schindler may have hesitated in complying with [the officer's] requests to 'back down' is not alone sufficient to show obstruction under the facts of this case.").

Defendants contend that there was probable cause to arrest for obstruction because Tolston did not heed Holland's command to keep moving after Holland poured out Tolston's drink. He instead asked Holland why Holland was "treating [him] like that" and what the problem was. Defendants say that his conduct showed an uncooperative attitude.

The Court concludes that no reasonable officer could have found probable cause to arrest Tolston for obstruction. Viewed in Plaintiff's favor, the evidence indicates that Tolston bumped into an officer, apologized, then asked the officer a few questions and failed to respond instantaneously to a "move-on" order. If we credit Tolston's version of events, he did not have much, if any, opportunity to comply with Holland's order before a leg sweep and/or tackle occurred and he was placed under arrest. (Pl. Resp. to Defs.' SOMF, Doc, 170 ¶ 11, 15.) Even under Defendants' version of the facts, Tolston questioned Holland for only 30 seconds before Wadsworth arrested him. (Individual Defs.' MSJ Br., Doc. 141-1 at 4-5; Individual Defs.' SOMF, Doc. 141-2 ¶ 11.) Drawing inferences in Tolston's favor, there is no suggestion that Tolston's failure to immediately keep moving hindered or impeded any officer from performing any duty. See Coley, 344 S.E.2d at 491.

Neither could Tolston's questions have given a reasonable officer probable cause to arrest for obstruction. As this Court has observed, "[t]he circumstances under which speech alone can constitute obstruction are limited. In such cases, 'the defendant's words affirmatively interfered with the officers' actions.'" Johnson, 391 F. Supp. 3d at 1239 (quoting Lebis v. State, 302 Ga. 750, 808 S.E.2d 724, 734 (2017)). The questions — "What's going on?" and "What's the issue?" and "Why are you being mean?" — cannot be said to have hindered Holland or Wadsworth from their duties when viewed in context. And "[t]he fact that [Plaintiff's] questions may have annoyed [the officers] does not establish probable cause for obstruction." Id. (finding no probable cause to arrest for obstruction where plaintiff repeatedly' asked for the officer's name and attempted to record the incident, but her conduct "did not impede [the officer] from investigating the incident, securing the safety of the scene, or engaging in his work.").

Words alone might constitute obstruction where a person has, for example, "instructed someone to remove evidence from a crime scene; refused to leave a scene and yelled so loudly so as to interfere with an officer's ability to conduct a witness interview; deliberately misled an officer about the defendant's identity; lied to officers about the whereabouts of suspects; and deliberately misled a responding officer about the defendant's role in a car wreck." Lebis, 808 S.E.2d at 734 (citation omitted). This is not, of course, an exhaustive list.

Defendants cite Pinchon v. State, 237 Ga.App. 675, 516 S.E.2d 537, 538 (1999), for the proposition that "[m]erely arguing, stubborn obstinance, and lying may satisfy the obstruction element of misdemeanor obstruction[.]" (Defs.' MSJ Reply Br., Doc. 185 at 15.) Taking Tolston's version of the facts, however, there is no indication that Tolston argued, was stubbornly obstinate,

or lied. And even if Tolston's questions could be construed as argumentative, Pinchon also makes clear that an individual does not commit the offense of obstruction unless his "conduct has the effect of hindering or obstructing the officer." Pinchon, 516 S.E.2d at 538. Defendants fail to explain how Tolston's questions hindered or obstructed Wadsworth in any way.

In sum, viewing the evidence in the light most favorable to Tolston, Tolston's conduct did not constitute the offense of obstruction, and no reasonable officer in Wadsworth's shoes and viewing all of the circumstances could have concluded otherwise. Probable cause therefore did not exist to arrest Tolston for misdemeanor obstruction under O.C.G.A. § 16-10-24(a).

c. Public Intoxication

Defendants alternatively contend that Wadsworth had probable cause to arrest Tolston for public intoxication. In Georgia, "[a] person who shall be and appear in an intoxicated condition in any public place ..., which condition is made manifest by boisterousness, by indecent condition or act, or by vulgar, profane, loud, or unbecoming language, is guilty of a misdemeanor." O.C.G.A. § 16-11-41(a). "The offense of public drunkenness can be manifested only in the manner designated by statute. Merely staggering, for example, is not a sufficient manifestation to justify an arrest." Young v. State, 155 Ga. App. 598, 271 S.E.2d 731, 732 (1980) (cleaned up). "[I]f plaintiff was not loud or profane, but simply drunk, no reasonable officer could have believed that probable cause existed to arrest him." Collins v. Ensley, No. 2:09-CV-00204-WCO, 2011 WL 13176425, at *8 (N.D. Ga. Sept. 15, 2011), aff'd, 498 F. App'x 908 (11th Cir. 2012) (finding no arguable probable cause existed to arrest plaintiff under O.C.G.A. § 1611-41(a) because, according to plaintiff's account, "he was not boisterous or loud and ... never used profane language during his encounter with the police").

It is unclear whether Defendants invoke O.C.G.A. § 16-11-41 ("public drunkenness"), the city's "Drinking in Public" ordinance (ATLANTA, GA., CODE § 10-8), or some other authority. Given that Defendants invoke state statute in other parts of their briefing, the Court will consider that Defendants are referring to O.C.G.A. § 16-11-41.

Here again, there is a genuine dispute of material fact as to what occurred. Defendants maintain that Tolston appeared drunk and bumped into a police officer while carrying a beer. Specifically, Wadsworth testified that Tolston was in a "disoriented state," had "slurred speech," and had "the odor of alcohol." (Wadsworth Dep., Doc. 153-1 at 21:12-14.) Elsewhere in the record, Defendants state that Plaintiff "appeared disoriented, having trouble following Officer Holland's simple commands." (Defs' SOMF, Doc. 141-2 ¶ 12.)

Plaintiff disputes all of this. He acknowledges that he had a beer in his hand when he encountered the officers, (Doc. 149-1 at 64), but "objects to the characterization that [the beer] was open[.]" (Pl.'s Resp. to Defs' SOMF, Doc. 170 ¶ 4.) He denies drinking more than a "very small, small amount" of alcohol at the festival and disputes that he showed signs of intoxication. (Tolston Dep., Doc. 149-1 at 64:3-4; Tolston Decl., Doc. 172-1 at 12; Doc. 172 at 36.) He denies having had slurred speech, (Tolston Decl., Doc. 172-1 at 12), a fact that a jury could find is corroborated by Wadsworth's BWC footage of the moments following his arrest. (Wadsworth BWC 1, Pl. Exh. 11 at 1:25-1:55) (video of Tolston arguably speaking clearly to Holland and Wadsworth moments after being handcuffed). He further points to video footage showing the on-scene doctor examining Tolston and telling Wadsworth that he did not smell alcohol on Tolston. (Pl. Add'l SOMF, Doc. 172-1 ¶ 36.) Even if a reasonable officer believed that Tolston had been drinking, moreover, that is not enough for probable cause to arrest for public intoxication. There is the additional requirement that intoxication be "made manifest by boisterousness, by indecent condition or act, or by vulgar, profane, loud, or unbecoming language...." O.C.G.A. § 16-11-41(a). Tolston's conduct could certainly be characterized as "boisterous" if we accept Defendants' version of the facts. Per Wadsworth, Tolston was "up in Holland's face" and placed his hands on Holland. (Defs.' SOMF, Doc. 141-2 ¶¶ 11, 16.) Plaintiff, however, denies that he engaged in any such conduct. In the absence of evidence that "blatantly contradict[s]" Tolston's account, Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), the Court must at this stage "resolve all issues of material fact in [Tolston's] favor," Perez v. Suszczynski, 809 F.3d 1213, 1217 (11th Cir. 2016) (quotation marks omitted). Taking Tolston's version, there was no "boisterousness," no "indecent condition or act," and no vulgar, profane, loud, or unbecoming language. Cf. Harvey v. Yochum, No. 4:19-cv-46 (CDL), 2021 WL 4975076, at *3 (M.D. Ga. Oct. 26, 2021) (arguable probable cause existed to arrest § 1983 plaintiff under § 16-11-41(a) because he "was cursing and acting agitated" and smelled like alcohol). Accepting Tolston's version of events, no reasonable officer could have found probable cause to arrest Tolston for public intoxication.

For the reasons discussed above, the Court finds that Tolston has satisfied his burden of showing that, under his version of the facts, Wadsworth violated his constitutional right to be free from unreasonable seizure.

Defendants do not address ATLANTA, GA., CODE § 110-59 — "Prohibited Conduct in a Park" — one of the ordinances listed in the citation that Wadsworth issued to Tolston. The ordinance has 30 subsections, and the citation does not specify which Tolston allegedly violated. "Though Plaintiffs bear the burden in a qualified immunity analysis, the Eleventh Circuit has held that—even in the qualified immunity context—defendants must 'specifically and clearly' present their theories of qualified immunity to the district court." Baker v. City of Atlanta, 662 F. Supp. 3d 1308, 1323, n.4 (N.D. Ga, 2023) (quoting WBY, Inc. v. DeKalb Cnty., Ga., 695 F. App'x 486, 491-92 (11th Cir. 2017)). The Court will not sift through the ordinance in search of probable cause where Defendants have made no argument on the matter.

ii. Clearly Established Law

Having found that, under Tolston's version of the facts, a reasonable officer could not have found probable cause to arrest him, the next question is whether Wadsworth violated "clearly established law," or in other words, lacked even "arguable probable cause" to arrest. See Garcia, 75 F.4th at 1187 (explaining that "the doctrine of 'arguable probable cause' is a useful shorthand" for the clearly-established-law inquiry). "An official's conduct violates clearly established law when 'the contours of [the] right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.'" Echols v. Lawton, 913 F.3d 1313, 1323 (11th Cir. 2019) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)). In the context of allegedly unlawful arrests, the "dispositive question" is whether "it was already clearly established, as a matter of law, that at the time of Plaintiff's arrest, an objective officer could not have concluded reasonably that probable cause existed to arrest Plaintiff under the particular circumstances Defendants confronted." Garcia, 75 F.4th at 1186 (quoting Gates, 884 F.3d at 1303). Qualified immunity protects police officers from false arrest suits, but "only up to the line defined by the arguable probable

cause standard[.]" Skop, 485 F.3d at 1143. "Where ... the resolution of disputed critical facts determines on which side of this line the officer's conduct fell, summary judgment is inappropriate." Id. The qualified immunity analysis is primarily conducted by looking at the binding case law of the Supreme Court and the Eleventh Circuit. Charles v. Johnson, 18 F.4th 686, 698 (11th Cir. 2021).

The Supreme Court has "repeatedly stressed that courts must not define clearly established law at a high level of generality, since doing so avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced." Wesby, 583 U.S. at 63-64, 138 S.Ct. 577 (cleaned up). Further, "[a]ny case law that is 'materially similar' to the facts in the case at hand must pre-date the officer's alleged conduct and 'truly compel the conclusion that the plaintiff had a right under federal law.'" Mercado v. City of Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005) (quoting Ensley v. Soper, 142 F.3d 1402, 1406 (11th Cir. 1998)).

"While [Tolston] arguably has not identified a case that is 'on all fours,' so to speak, with the facts of this case, we nonetheless find [Tolston's] version of events would not leave a reasonable officer with the impression he had probable cause to arrest [Tolston] for any of the [asserted] crimes." Mowell v. City of Milton, Georgia, 810 F. App'x 799, 805 (11th Cir. 2020).

If Tolston's account is to be believed, his conduct consisted of (1) an accidental shoulder bump at a crowded festival (for which he immediately apologized), (2) possession of a beer at a festival (at which patrons could lawfully purchase alcohol), (3) a few simple inquiries as to why Officer Holland had poured out his beer and cursed at him, and (4) his decision to ask these questions instead of obeying instantly the officer's direction to "keep it [] moving." Under Tolston's version of events, he never interfered with a police function, did not create a risk of harm to anyone, and did not act in a violent or otherwise unlawful manner.

Turning to the law, by 2018, it was clearly established that "a constitutional arrest must be based on a reasonable belief that a crime has occurred, rather than simply unwanted conduct." Wilkerson v. Seymour, 736 F.3d 974, 978 (11th Cir. 2013). It was further clearly established that merely voicing objection to an officer's actions, even in a "disagreeable" tone, is not cause for arrest where no crime has occurred. See id. (no arguable probable cause to arrest where the litigant, who was asked by a police officer to move her car, did not immediately obey officer's direction, used curse words, and questioned him in a "louder than conversational tone" because it was "clear" that the conduct did not rise to the level of a crime). The defendant-officer here was further on notice that a citizen cannot be arrested merely for making "simple inquir[ies]" about an officer's conduct. Davis v. Williams, 451 F.3d 759, 764 n.8 (11th Cir. 2006) (no arguable probable cause to arrest litigant who repeatedly questioned police officer about why he was on his property, asked to speak with the officer's supervisor, and did not obey the officer's direction to "[l]eave now"). It was also clear that the "First Amendment protects a significant amount of verbal criticism and challenge directed at police officers." City of Houston v. Hill, 482 U.S. 451, 461, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987); see also Skop, 485 F.3d at 1139 (stating that when an individual "simply reiterates or attempts to clarify a perfectly reasonable question directed to the officer, there is neither probable cause nor arguable probable cause to arrest for obstruction.").

There were, in other words, both materially similar cases and "broad holdings or statements of principle in case law ... not

tied to particularized facts" that provided fair notice of unconstitutionality. Eloy v. Guillot, 289 F. App'x 339, 346 (11th Cir. 2008) (citing Vinyard v. Wilson, 311 F.3d 1340, 1350-52 (11th Cir. 2002)). Moreover, the "plain text" of the statutes and ordinances discussed above "is so clear that no reasonable officer could have interpreted it to permit" Tolston's arrest under these particular circumstances. Edger, 84 F.4th at 1238-39.

While Wadsworth provides divergent testimony about what occurred, the Court may not resolve factual disputes or weigh credibility. Assuming that the facts are as Tolston has described them, those facts could not have led a reasonable officer to believe that even arguable probable cause existed to arrest Tolston for disorderly conduct, obstruction, or public intoxication. "Because [Tolston] has shown, at least when the facts are viewed in the light most favorable to [him], that [Wadsworth] did not possess arguable probable cause to arrest [him] and thus violated clearly established law in arresting [him], [he] is entitled to have [his] case heard by a jury." Skop, 485 F.3d at 1143-44.

To be clear, this order does not find definitively that Officer Wadsworth does not enjoy qualified immunity in this matter. "But because the answer to that legal question turns on a disputed set of facts, summary judgment is inappropriate." Mowell, 810 F. App'x at 806 (citing Skop, 485 F.3d at 1144). Wadsworth is not entitled to summary judgment on the Fourth Amendment false arrest claim.

c. Fourth Amendment Excessive Force Claim i. Constitutional Violation

Tolston argues that Wadsworth violated his Fourth Amendment rights when he employed a leg sweep and tackled him, which caused Tolston to sustain a concussion and neck injury. "The Fourth Amendment's guarantee against unreasonable searches and seizures includes the right to be free from the use of excessive force in the course of an arrest." Saunders v. Duke, 766 F.3d 1262, 1266-67 (11th Cir. 2014). Excessive force claims arising in the context of an arrest are assessed under an "objective reasonableness" standard. Richmond, 47 F.4th at 1182 (citing Graham v. Connor, 490 U.S. 386, 395-96, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). "The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. at 396, 109 S.Ct. 1865. At summary judgment, the Court must "reconstruct the event in the light most favorable to the non-moving party and determine whether the officer's use of force was excessive under those circumstances." Stephens v. DeGiovanni, 852 F.3d 1298, 1315 (11th Cir. 2017) (quotation marks omitted).

Tolston alternatively argues that any use of force was necessarily excessive because there was no probable cause to arrest him in the first place. (Doc. 172 at 40-41.) As Defendants note, the Eleventh Circuit considers such "artificial" excessive force claims to be subsumed by a plaintiff's false arrest claim. Richmond, 47 F.4th at 1180-81. "Unlike a 'genuine' excessive force claim, an artificial excessive force claim—that force was excessive merely because another Fourth Amendment violation occurred—'is subsumed in the illegal stop or arrest claim and is not a discrete excessive force claim.'" Id. at 1180 (quoting Jackson v. Sauls, 206 F.3d 1156, 1171 (11th Cir. 2000)). "[W]hen a false arrest claim and a genuine excessive force claim arise out of the same incident, the false arrest and excessive force claims "must be analyzed independently." Id. at 1181.

The objective reasonableness standard requires courts to balance "the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental

interests at stake." Graham, 490 U.S. at 396, 109 S.Ct. 1865 (internal quotation marks omitted). Under this standard, "[a]n officer will be entitled to qualified immunity if his actions were 'objectively reasonable' — that is, if a reasonable officer in the same situation would have believed that the force used was not excessive." Thornton v. City of Macon, 132 F.3d 1395, 1400 (11th Cir. 1998). The reasonableness of the force used depends on "the facts and circumstances of each particular case[.]" Davis, 451 F.3d at 767 (citation omitted).

"When an officer permissibly makes an arrest or investigatory stop, he may use some degree of physical coercion or threat thereof to effect it." Patel v. City of Madison, Alabama, 959 F.3d 1330, 1339 (11th Cir. 2020) (internal quotations omitted). The kind of force used here — a leg sweep and/or tackle — is not categorically unconstitutional. Charles v. Johnson, 18 F.4th 686, 699 (11th Cir. 2021) ("We have never held that a tackle is a categorically unconstitutional kind of force."). Thus, to determine whether the officer's force was unreasonable, we consider six factors. The first three, derived from Graham v. Connor , are: (1) "the severity of the crime at issue," (2) "whether the suspect poses an immediate threat to the safety of the officers or others," and (3) "whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight." 490 U.S. at 396, 109 S.Ct. 1865. The latter three are "[o]ther considerations" that the Eleventh Circuit has articulated in applying the Graham factors. Saunders, 766 F.3d at 1267. They are: (4) "the need for the application of force," (5) "the relationship between the need and the amount of force used," and (6) "the extent of the injury inflicted." Id. The Court discusses these factors below and concludes that, relying on Plaintiff's version of the encounter as we must, a jury could reasonably find that Tolston was not resisting, struggling, interfering, or fleeing when Wadsworth forcefully took him to the ground, and that the force employed was gratuitous and excessive.

We begin with the first Graham factor — the "severity of the crime at issue." "Allegations of excessive force during an arrest can occur in a wide range of conduct by government officials in their efforts in stopping apparent criminal activity, such as shooting or fighting, to investigating a potential crime or misdemeanor." Stephens, 852 F.3d at 1320. This case occurs at the lower, "misdemeanor side of the spectrum[.]" Id. The Eleventh Circuit has "repeatedly held that less force is appropriate when the crime at issue is a misdemeanor, and the suspect does not pose a threat or attempt to flee." Richmond, 47 F.4th at 1183; Reese v. Herbert, 527 F.3d 1253, 1274 (11th Cir. 2008) ("The crime of misdemeanor obstruction is a crime of 'minor severity' for which less force is generally appropriate."). Even under Defendants' view of the evidence, the alleged offenses (disorderly conduct, misdemeanor obstruction, public intoxication) were not particularly serious. See Davis, 451 F.3d at 767 (denying qualified immunity on excessive force claim when the plaintiff's alleged disorderly conduct did not constitute "a serious crime").

Defendants imply, in passing, that Tolston's "crimes include[d] assault[.]" (Doc. 141-1 at 16.) But, for the reasons discussed in the false arrest analysis, supra, under Tolston's account of the facts, no reasonable officer could believe that his accidental shoulder contact with Holland at a crowded festival, for which Tolston immediately apologized, constituted an "attempt[] to commit a violent injury" or "an act which places another in reasonable apprehension of immediately receiving a violent injury." O.C.G.A. § 16-5-20(a) (Georgia's simple assault statute).

Next, the Court considers whether Tolston posed "an immediate threat" to

the officers or others. Under Tolston's version of the facts, there is "no evidence indicating that [Tolston] posed any threat to the arresting officer or to anyone else." Lee, 284 F.3d at 1198. After bumping into Holland with his shoulder, Tolston apologized. Tolston contends that he was neither yelling nor acting erratically when he asked Holland what the problem was and why Holland had poured out his drink. And it is undisputed that the officers out-numbered Tolston at least three to one. See Hardigree v. Lofton, 992 F.3d 1216, 1232 (11th Cir. 2021) (stating that "the number of persons with whom the police officers must contend at one time" is relevant in determining the reasonableness of the force). Under Tolston's version of facts, a reasonable officer would not have thought Tolston posed an immediate threat to the officers or anyone else in the area. Cf. Charles, 18 F.4th at 700 (holding that tackling plaintiff in a "tense" situation was reasonable because the officer "had no backup on the scene," the plaintiff had an outstanding warrant, the plaintiff was "loudly yelling and acting erratically," and his "pre-tackle behavior constituted active resistance"). Accordingly, this factor favors Tolston.

Under the next Graham factor, we consider whether Tolston "actively resist[ed] arrest or attempt[ed] to evade arrest by flight." Under his version of the facts, Tolston did neither. Per Plaintiff, after he posed his inquiries to Holland, Holland said "[t]hat's it," and grabbed Tolston's arm. Accepting Tolston's account, Tolston did not resist or attempt to flee when Holland did so. Nevertheless, Wadsworth tackled Tolston to the ground, causing him to sustain a concussion.

Defendants argue that Tolston was non-compliant in the moments leading up to his arrest because he disobeyed Holland's command to "keep it fucking moving." But asking Holland why Holland was "treating [him] like that" cannot reasonably be considered to constitute active resistance to arrest. See Davis, 451 F.3d at 767 (holding that plaintiff who posed "simple inquir[ies]" as to why police officers were taking certain actions "did not actively resist arrest"); cf. Charles, 18 F.4th at 700 (explaining that plaintiff actively resisted when he "ignored at least thirteen commands" and moved his body and arms away from the officer multiple times to prevent handcuffing). This factor weighs in favor of Tolston.

We next assess the Eleventh Circuit's "[o]ther considerations," Saunders, 766 F.3d at 1267, to the extent that they do not overlap with those factors already discussed. The first is "the need for the application of force." Generally, "the absence of a legitimate law enforcement justification for using force is indicative of excessive force." Richmond, 47 F.4th at 1182 (officer used excessive force when he had "no law enforcement justification for grabbing [plaintiff's] face, slamming him to the ground, or twisting his arm"); see also Lee, 284 F.3d at 1198 (court could "discern no reason, let alone any legitimate law enforcement need," for officer to slam plaintiff's head into her car after she was in handcuffs). The Court does not lose sight of the fact that Tolston bumped into a police officer here. But under Tolston's version of the facts, the takedown was not an instant response to that event. Rather, there was an intervening exchange during which Officer Holland cursed at Tolston, grabbed his drink, and poured it out. Per Tolston, when he then asked Holland why he was treating him so, Tolston did not resist or act aggressively. Because a reasonable jury could find that Tolston was not resisting, interfering, or fleeing at the time force was applied, it could conclude that Wadsworth had no reason to use the force he did. Patel, 959

Again, Defendants contest this view of the facts. They contend that Tolston placed his hands on Holland, and that Wadsworth did not tackle Tolston, but instead he "tripped and fell" as he was arresting him. (Doc. 141-1 at 18.) In the absence of body-camera footage or other evidence that clearly demonstrates otherwise, we must accept Tolston's version of the facts. Galvez v. Bruce, 552 F.3d 1238, 1243 (11th Cir. 2008) (in assessing an excessive force claim, "the question we ask is whether, under [the plaintiff's] version of the facts, [the officer] behaved reasonably in the light of the circumstances before him.") (internal quotation marks omitted).

F.3d at 1339-40; see, e.g., Sheth v. Webster, 145 F.3d 1231, 1238 (11th Cir. 1998) (determining that there was no "justification for [defendant officer's] use of force" where the record did not suggest that "plaintiff posed a danger to the officer or others").

Next, the Court considers "the relationship between the need and the amount of force used." Defendants argue that Wadsworth's use of force amounted to only nonactionable, de minimis force. Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000) ("[T]he application of de minimis force, without more, will not support a claim for excessive force in violation of the Fourth Amendment."). The de minimis force principle exists because "the right to make an arrest necessarily carries with it the right to use 'some degree of physical coercion or threat thereof,' and 'the typical arrest involves some force and injury.'" Sebastian v. Ortiz, 918 F.3d 1301, 1308 (11th Cir. 2019) (quoting Rodriguez v. Farrell, 280 F.3d 1341, 1351 (11th Cir. 2002)). But the fact that the amount of force used was not as great as it could have been does not dispense with the requirement that the force used must be "reasonably proportionate to the need for that force." Lee, 284 F.3d at 1200 ("[T]he fact that [plaintiff] did not suffer greater injury to her head ... does not alone render the force used de minimis").

The Eleventh Circuit, moreover, has emphasized that the de minimis force principle "has never been used to immunize officers who use excessive and gratuitous force after a suspect has been subdued, is not resisting, and poses no threat." Saunders, 766 F.3d at 1269-70; Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th Cir. 2008) ("Our cases hold that gratuitous use of force when a criminal suspect is not resisting arrest constitutes excessive force."). When an arrestee is "not committing a crime, resisting arrest, or posing an immediate threat to the officers," an officer is not justified in using seriously injurious force. Ingram v. Kubik, 30 F.4th 1241, 1252 (11th Cir. 2022) (citing Mercado v. City of Orlando, 407 F.3d 1152, 1157-58 (11th Cir. 2005)).

See also Brown, 608 F.3d at 739-40 (denying qualified immunity to officer who "gratuitously" used pepper spray against an arrestee "who was suspected only of a minor offense (playing music too loud), was not threatening the officer or the public, was not attempting to flee, and who had communicated her willingness to be arrested," where arrestee's injuries included pepper spray burns to her face and scrapes to her knee and elbows); Sebastian, 918 F.3d at 1309-10 (holding that officer's use of force was gratuitous and excessive when he left tight handcuffs on plaintiff for five hours, causing permanent nerve damage, when "there [wa]s not the slightest indication that ... [plaintiff] posed a threat to officer safety or to anyone else, or was a flight risk at any time during the interaction"); Ingram, 30 F.4th at 1254 (holding that "slam[ing]" plaintiff to the ground without warning, causing a serious neck injury, was a "grossly disproportionate, gratuitous, and seriously injurious" use of force because the officer knew that plaintiff was unarmed and posed no threat).

Finally, the Court must consider the extent of the injury. "The nature and extent of physical injuries sustained by a plaintiff are relevant in determining whether the amount and type of force used by the arresting officer were excessive." Stephens, 852 F.3d at 1325 (emphasis omitted).

The extent of plaintiff's injuries can sometimes be "the most telling factor in revealing the unprovoked force exerted" on the plaintiff by a police officer. Id. at 1326. Here, there is no blood to seen on the video, but Tolston contends that the blow to his head knocked him temporarily unconscious. (Tolston Dep., Doc. 149-1 at 81:22-82:4.) He was diagnosed with post-concussion syndrome and was found to have symptoms of a neck muscle strain. (Doc. 173-8 at 2.) Defendants do not contest the extent of Tolston's injuries.

Granted, the injuries here are nothing like those in a case like Patel v. City of Madison. Patel, 959 F.3d at 1335, 1340 (leg sweep used on senior citizen resulted in "severe and permanent physical injuries" leaving him "partially paralyzed"). This case involves no permanent injuries. Cf. Sebastian, 918 F.3d at 1309. On the other hand, it is no small thing to be rendered to the ground with such force that one's head hits the pavement, causing temporary loss of consciousness and concussion. See Saunders, 766 F.3d at 1269 ("The human skull is a relatively hearty vessel for the brain, but it will generally not fare well in a contest with hardened cement."); see also Spruell v. Harper, No. 1:09-CV-356-TWT, 2011 WL 1118562, at *5, 2011 U.S. Dist. LEXIS 31492, at *14 (N.D. Ga. Mar. 25, 2011) (denying qualified immunity to officers who caused plaintiff to suffer "post-traumatic post concussion syndrome and [a] cervical strain" when they wrestled him to the ground, "even though [plaintiff] was accused of obstruction, a relatively minor crime"); cf. Jones v. City of Dothan, Ala., 121 F.3d 1456, 1460 (11th Cir. 1997) (officer was entitled to qualified immunity when he pushed plaintiff against a wall and kicked plaintiffs legs apart, causing the need for "minor medical treatment," because "the actual force used and the injury inflicted were both minor in nature").

In sum, when the facts are viewed in the light most favorable to Plaintiff, the Graham factors and related considerations favor Tolston. Under Tolston's version of the facts, Officer Wadsworth's takedown of Tolston was gratuitous and excessive in violation of the Fourth Amendment.

ii. Clearly Established Law

We next consider whether, under Tolston's version of the facts, the law clearly barred Wadsworth from applying the force he did. It did. At the time of Tolston's arrest in October 2018, it was clearly established that "gratuitous use of force when a criminal suspect is not resisting arrest constitutes excessive force." Hadley, 526 F.3d at 1330; see also Perez v. Suszczynski, 809 F.3d 1213, 1222 (11th Cir. 2016) ("Our case law clearly establishes that the use of force against an arrestee who ... is not a threat, has not exhibited aggressive behavior, and has not actively resisted arrest is excessive."); Saunders, 766 F.3d at 1265 ("We have repeatedly ruled that a police officer violates the Fourth Amendment, and is denied qualified immunity, if he or she uses gratuitous and excessive force against a suspect who is under control, not resisting, and obeying commands.").

While Hadley, Perez, and Saunders concerned the use of force on handcuffed suspects, in 2017, the Eleventh Circuit explained that "the same rationale applies to the use of gratuitous force when the excessive force is applied prior to the handcuffing[.]" Stephens, 852 F.3d at 1326 n.33. Since then, the Eleventh Circuit has cited Stephens in denying qualified immunity in cases in which "the police have unnecessarily thrown non-resisting, unhandcuffed suspects on the ground." Richmond, 47 F.4th at 1184; see also Ingram, 30 F.4th at 1254 (concluding that defendant's body slam of plaintiff "was a 'gratuitous use of force' against someone who was 'not resisting

arrest' that our precedents have established 'constitutes excessive force'"); Patel, 959 F.3d at 1343 (holding that throwing plaintiff to the ground when he "was not resisting and was complying" violated a clearly established principle that dated back "to at least 2000").

If we credit Tolston's version of events, no reasonable officer could have thought that sweeping Tolston's legs out from under him and tackling him to the ground with such force that he lost consciousness was a reasonable use of force. Under Tolston's version of the facts, he was not resisting or struggling or attempting to flee, and was at most suspected of misdemeanor offenses, so the law clearly did not permit the officers tackling him to the ground.

For the reasons discussed above, Officer Wadsworth is not, at this stage, entitled to qualified immunity on the § 1983 excessive force claim. Here again, the Court does not definitively decide that Wadsworth has no entitlement to qualified immunity in this case. The Court finds, however, that because the answer to the qualified immunity question turns on a disputed set of facts, summary judgment is not appropriate.

d. First Amendment Retaliation Claim

Wadsworth next seeks summary judgment on Tolston's First Amendment retaliation claim. The First Amendment "protects not only the affirmative right to speak, but also the right to be free from retaliation by a public official for the exercise of that right." Echols v. Lawton, 913 F.3d 1313, 1320 (11th Cir. 2019) (quotation marks omitted). To prevail on a claim for First Amendment retaliation, a plaintiff must show that (1) he engaged in protected speech, (2) the official's conduct adversely affected the protected speech, and (3) a causal connection existed between the speech and the official's retaliatory conduct. Id.

Tolston's arguments as to his First Amendment retaliation claim are difficult to discern; he confusingly merges discussion of this claim with his Fourth Amendment malicious prosecution claims. As best the Court can tell, Plaintiff contends that his First Amendment rights were violated when, immediately after he requested "everyone's badge numbers" and stated that he was going to "sue" for "excessive force," Officer Holland allegedly prolonged his detention for a further period of approximately an hour.

This is a rough approximation. As noted earlier, the record is not clear as to how long Tolston was detained before being released. Wadsworth's BWC footage indicates that after being arrested, Tolston was taken to a park pavilion, where he was held for at least 40 minutes.

Construed in the light most favorable to Tolston, the BWC footage appears to show that Officer Holland was on the verge of releasing Tolston, but that Holland changed his mind after Tolston asked for badge numbers. (Wadsworth BWC 1, Pl. Exh. 11 at 0:20-2:00.) It cannot reasonably be said that Plaintiff was arrested in retaliation for his words, for the footage makes clear that Tolston was already in handcuffs when he asked for badge numbers, and that officers continued to physically restrain him during the full exchange. Rather, the footage arguably shows that Tolston's detention could have been prolonged by approximately one hour following his request for badge numbers.

Assuming that Plaintiff's speech was protected, and assuming that Tolston's detention was prolonged due to his speech, this claim must still fail because Plaintiff has not presented evidence to show that Wadsworth engaged in adverse conduct that would likely deter a person of ordinary firmness from engaging in constitutionally

protected speech. Tolston's statements of material fact and arguments with respect to this claim discuss only Holland's conduct (a non-party), not Wadsworth's. (Doc. 172-1 ¶¶ 25-26; Doc. 172 at 53.) This makes sense, as the BWC footage shows that it was Holland who responded to Tolston's badge-number request by saying, "Nah, he's gonna take a ride," and that it was Holland who simultaneously physically restrained him. (Wadsworth BWC 1, Pl. Exh. 11 at 1:50-55.) The video footage shows Holland, not Wadsworth, reapplying the handcuffs to Tolston's right wrist after Tolston asked for badge numbers. (Id.) Tolston's response to the motion for summary judgment does not make any argument as to why Wadsworth should be liable here. The Court concludes that Tolston has failed to present sufficient evidence of Wadsworth violating his First Amendment rights. Wadsworth is therefore entitled to summary judgment on Tolston's First Amendment retaliation claim.

Tolston also alleges that there was a second instance of retaliation that occurred when an unidentified "superior officer" offered to make Tolston's arrest "go away" if Tolston agreed not to file a complaint against the arresting officers. (Doc. 172 at 53-54.) Wadsworth, however, had nothing to do with this alleged "quid pro quo," and the officer who made the offer to him remains "unknown," according to Tolston. (Id. at 54.)

e. Fourth Amendment Malicious Prosecution Claim

Tolston asserts a Fourth Amendment malicious prosecution claim against Wadsworth for his alleged act of bringing "trump[ed]-up" charges against Tolston "out of retaliatory animus for requesting [the officers'] badge numbers." (Doc. 172 at 46.) A malicious prosecution claim has two elements: (1) "the defendant violated [the plaintiff's] Fourth Amendment right to be free from seizures pursuant to legal process" and (2) "the criminal proceedings against [the plaintiff] terminated in his favor." Luke v. Gulley, 50 F.4th 90, 95 (11th Cir. 2022). Tolston's brief does not engage with the legal standard. The Court finds that under the applicable law, this claim cannot proceed to the jury, for Tolston has not shown the existence of any "seizure[] pursuant to legal process" in this matter. Id.

The Eleventh Circuit has "identified the types of deprivations of liberty that qualify as seizures pursuant to legal process and give rise to § 1983 malicious prosecution claims." McAffee v. City of Clearwater, No. 22-12320, 2023 WL 2823392, at *2 (11th Cir. Apr. 7, 2023) (citing Williams v. Aguirre, 965 F.3d 1147, 1158 (11th Cir. 2020)). These include "warrant-based seizures" and "seizures following an arraignment, indictment, or probable-cause hearing." Williams, 965 F.3d at 1158. By contrast, "a plaintiff who is subjected to a warrantless arrest but is not detained after the commencement of judicial proceedings generally does not suffer a seizure pursuant to legal process." McAffee, 2023 WL 2823392, at *2 (citing Kingsland v. City of Miami, 382 F.3d 1220, 1235 (11th Cir. 2004)). In other words, although a person suffers a "seizure" at the time of a warrantless arrest, the seizure is not "pursuant to legal process" when it "occur[s] prior to the time of arraignment" and the commencement of the judicial proceedings. Kingsland, 382 F.3d at 1235, abrogated on other grounds by Williams, 965 F.3d at 1159; see also Brienza v. City of Peachtree City, Georgia, No. 21-12290, 2022 WL 3841095, at *8 (11th Cir. Aug. 30, 2022), cert. denied sub nom. Brienza v. City of Peachtree, Georgia, ___ U.S. ___, 144 S. Ct. 69, 217 L.Ed.2d 10 (2023).

Here, Tolston was arrested without a warrant, so to prevail on his malicious prosecution claim, he must present evidence that he was subject to a

"seizure[] following an arraignment, indictment, or probable-cause hearing." Williams, 965 F.3d at 1158. He fails to do so. Tolston states that his misdemeanor charges "were dismissed after [he] appeared in-person to contest the charges." (Pl. Add'l SOMF, Doc. 172-1 ¶ 53.) But there is no evidence that any seizure occurred after the commencement of the state judicial proceeding. Being summoned to attend a criminal proceeding, without more, is not a "seizure" within the meaning of the Fourth Amendment. See Kingsland, 382 F.3d at 1236 (noting that "normal conditions of pretrial release" do not constitute a seizure, "barring some significant ongoing deprivation of liberty, such as a restriction on the defendant's right to travel interstate"). Given the absence of evidence that Tolston experienced a seizure pursuant to legal process in the state-court action, Defendants are entitled to summary judgment on the malicious prosecution claim. McAffee, 2023 WL 2823392, at *3.

Tolston's complaint styles his § 1983 malicious prosecution claim as one for "abuse of process and malicious prosecution." (Doc. 1 at 55 (emphasis added).) Plaintiff makes no mention of any distinct abuse of process claim in the summary judgment briefing. To the extent that Plaintiff sought to bring a separate abuse of process claim, it has been abandoned. See, e.g., Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322 (11th Cir. 2001) (finding claim abandoned when argument was not presented in initial response to motion for summary judgment); Bute v. Schuller International, Inc., 998 F. Supp. 1473, 1477 (N.D. Ga. 1998) (finding unaddressed claim abandoned); see also Coalition for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1326 (11th Cir. 2000) (failure to brief and argue issue at the district court is sufficient to find the issue has been abandoned).

2. State Law Claims Against Officer Wadsworth

Tolston brings state-law claims against Wadsworth for (1) false arrest (Count 19), (2) assault/battery (Count 20), and (3) malicious prosecution (Count 21). Defendants argue that these claims are barred by the doctrine of official immunity.

"In Georgia, a government official 'may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions.'" Hardigree v. Lofton, 992 F.3d 1216, 1233 (11th Cir. 2021) (quoting Ga. Const. art. 1, § 2, ¶ IX(d)). There is no dispute that Wadsworth was performing his official duties during his encounter with Tolston. See, e.g., Payne v. DeKalb County, 414 F. Supp. 2d 1158, 1183 (N.D. Ga. 2004) (citing Reed v. DeKalb County, 264 Ga.App. 83, 589 S.E.2d 584, 587 (2003)) (under Georgia law, "[t]he decision to effectuate a warrantless arrest is generally a discretionary act requiring personal judgment and deliberation on the part of the officer.") So, the question is whether Tolston has evidence that Wadsworth acted with "actual malice" or "intent to cause injury" such that he does not enjoy official immunity.

Actual malice "requires a deliberate intention to do wrong," Adams v. Hazelwood, 271 Ga. 414, 520 S.E.2d 896, 898 (1999), or, in other words, "an intent to act contrary to law," Croland v. City of Atlanta, 782 F. App'x 753, 759 (11th Cir. 2019). It consists of more than "implied malice, or the reckless disregard for the rights and safety of others." Selvy v. Morrison, 292 Ga.App. 702, 665 S.E.2d 401, 405 (2008); see also Stephens v. Zimmerman, 333 Ga.App. 586, 774 S.E.2d 811, 816 (2015) ("Ill will alone is insufficient to establish actual malice") (quotation marks omitted). One has "intent to cause injury" when he has "actual intent to cause harm to the plaintiff, not merely an intent to do the act purportedly resulting in the

claimed injury." Kidd v. Coates, 271 Ga. 33, 518 S.E.2d 124, 125 (1999).

Georgia law does not permit courts to "speculate" or "make assumptions" at the summary judgment stage concerning an officer's improper motive; an "inference of malice is insufficient to overcome [an] immunity defense." Conley v. Dawson, 257 Ga.App. 665, 572 S.E.2d 34, 37-38 (2002); Watkins v. Latif, 323 Ga. App. 306, 744 S.E.2d 860, 863 (2013). "[T]o avoid summary judgment on official immunity grounds[,]" it is "not enough" for the plaintiff to "show merely that [the officer] lacked probable cause to arrest or that his decision to arrest ... was 'mistaken' or even 'reckless[.]'" Croland, 782 F. App'x at 761 (citations omitted). Instead, "strong record evidence of improper motive" is required to defeat an official immunity defense. Id. at 759 (collecting cases). An "improper motive" can be shown, for example, by evidence of "a personal animus" or "manufacturing evidence or knowingly presenting perjured testimony." Mercado v. Swoope, 340 Ga.App. 647,798 S.E.2d 291, 294 (2017).

See, e.g., Jordan v. Mosley, 487 F.3d 1350, 1357 (11th Cir. 2007) (affirming the denial of official immunity where there was evidence that an officer caused the issuance of an arrest warrant as a means to get plaintiff to come to the jail so that the officer could collect on a personal civil debt); Lagroon v. Lawson, 328 Ga.App. 614, 759 S.E.2d 878, 883 (2014) (officers were not entitled to official immunity where there was evidence that they coerced witnesses to give false statements and used the statements as grounds for plaintiffs' arrests "despite knowing of the statements' falsity, inaccuracy or unreliability").

In assessing whether Wadsworth was entitled to qualified immunity as to Tolston's § 1983 claims, the Court considered the objective reasonableness of his conduct. See Kingsland, 382 F.3d at 1231. That objective inquiry "does not include an inquiry [into] the officer's subjective intent or beliefs." Brown v. City of Huntsville, Ala., 608 F.3d 724, 735 (11th Cir. 2010). In contrast, when the question is whether a defendant enjoys official immunity under Georgia law, we ask whether the officer subjectively "inten[ded] to do wrong" or "inten[ded] to cause injury." Adams, 520 S.E.2d at 898; Kidd, 518 S.E.2d at 125 (emphases added); Jordan v. Mosley, 487 F.3d 1350, 1357 (11th Cir. 2007) ("Unlike qualified immunity under federal law, we must inquire into [the officer's] subjective intent to determine whether he has official immunity under Georgia law."). The critical difference between the two standards means that an officer who is denied qualified immunity as to § 1983 claims can still be protected by official immunity as to state law claims.

See, e.g., Croland, 782 F. App'x at 759 (denying officers qualified immunity on § 1983 false arrest claim but granting official immunity on Georgia false arrest claim because plaintiff "offered insufficient evidence of actual malice or actual intent to cause injury"); Pequeno v. Seminole Cnty. Georgia, 623 F. Supp. 3d 1337, 1359 (M.D. Ga. 2022) (denying officers qualified immunity on § 1983 excessive force claim but granting official immunity on Georgia state assault and battery claims where plaintiff failed to identify "evidence to support that [defendants] acted with actual malice or intended to cause injury as defined by Georgia law").

Here, Tolston's discussion of his state-law claims wholly fails to address Georgia's official immunity doctrine. (Doc. 172 at 55-57.) And while the Court found above that, under Tolston's version of the facts, Wadsworth's arrest and use of force were objectively unreasonable, the record does not show that Wadsworth acted with actual malice or an actual intent to cause injury. For instance, there is no evidence that Wadsworth, who had never met Tolston before the incident, harbored a "personal animus" toward him. Mercado, 798 S.E.2d at 294; cf. Jordan, 487 F.3d at 1357.

There is no suggestion that Wadsworth manufactured evidence, lied, or concealed exculpatory evidence. Cf. Lagroon, 759 S.E.2d at 883. Nor is there evidence that Wadsworth said or did anything prior to the arrest that might evince a subjectively improper motive. Because Tolston has not presented "strong record evidence of improper motive[,]" Croland, 782 F. App'x at 759, Wadsworth is entitled to official immunity on Tolston's state law claims.

C. Municipal Liability

Tolston asserts four § 1983 claims against the City of Atlanta: (1) false arrest (Count 8), (2) First Amendment retaliation (count 10), (3) malicious prosecution (Count 16), and (4) "negligent hiring, failure to supervise and train" (Count 18). Although he asserts four distinct Monell claims, his briefing contains just one, catch-all discussion of municipal liability. He argues that certain City practices were responsible for "all [] underlying constitutional violations." (Doc. 171 at 11 (emphasis added).) Plaintiff's Monell theory appears to be that the City's alleged custom of tolerating noncompliance with its BWC policies caused the constitutional violations at issue in this case.

Tolston asserts a "negligent hiring/failure to supervise and train" claim against Defendant Bryant in his official capacity as APD Chief of Police (Count 17). Because Bryant is sued only in his official capacity, the Court construes this claim as one against the City and repetitive of Count 18. See Vineyard v. County of Murray, Ga., 990 F.2d 1207, 1210 n.3 (11th Cir. 1993) ("For liability purposes, a suit against a public official in his official capacity is considered a suit against the local governmental entity he represents.").

See Monell v. Dep't of Soc. Servs. of N.Y.C., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

"The Supreme Court has placed strict limitations on municipal liability under § 1983." Grech v. Clayton Cnty., Ga., 335 F.3d 1326, 1329 (11th Cir. 2003). To succeed on § 1983 municipal liability claim, a plaintiff must show that the "municipality itself," through a policy or practice, "cause[d] the constitutional violation" at issue. City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) (emphasis in original). Specifically, a plaintiff must establish: "(1) that his constitutional rights were violated; (2) that the municipality had a custom or policy that constituted deliberate indifference to that constitutional right; and (3) that the policy or custom caused the violation." Underwood v. City of Bessemer, 11 F.4th 1317, 1333 (11th Cir. 2021) (quotation marks omitted).

1. Violation of Constitutional Rights

The Court has determined above that Tolston's Fourth Amendment false arrest and excessive force claims may proceed to trial. The first element necessary for Monell liability is thus satisfied at the summary judgment stage.

While Tolston's excessive force claim against Wadsworth may proceed to trial, Tolston's excessive force claim against the City was dismissed at the motion-to-dismiss stage. (Doc. 29 at 13-17.)

2. Custom or Policy

The second element is whether the City "had a custom or policy that constituted deliberate indifference to that constitutional right." McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). As best the Court can discern, Plaintiff's municipal liability argument is premised mostly on a theory of failure to train and supervise. In some instances, a failure to train and/or supervise may amount to a policy or custom demonstrating deliberate indifference by a municipality to the rights of arrestees. See Favors v.

City of Atlanta, 849 F. App'x 813, 817-20 (11th Cir. 2021); Vineyard v. Cnty. of Murray, Ga., 990 F.2d 1207, 1212 (11th Cir. 1993). To establish deliberate indifference "a plaintiff must present some evidence that [1] the municipality knew of a need to train and/or supervise in a particular area and [2] the municipality made a deliberate choice not to take any action." Favors, 849 F. App'x at 817 (quoting Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998)). "A municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train." Connick v. Thompson, 563 U.S. 51, 61, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011).

We begin by addressing whether the City was on notice of the need to train in the particular area that allegedly caused the constitutional violation here. Favors, 849 F. App'x at 817-818. Tolston argues that City officials knew that officers frequently failed to activate their BWCs during encounters with citizens. This practice, according to Tolston, "created a culture" that led City police officers to commit the underlying constitutional violations against him.

Tolston's evidence of custom or policy consists mainly of certain investigative reports by APD's Office of Professional Standards ("OPS") relating to alleged police misconduct. (See Doc. 173-29-173-40.) Tolston states in his response brief that 86 OPS investigations were opened between January 9, 2018, and September 27, 2018 the nine months before Tolston's arrest on October 14, 2018. (Doc. 171 at 4.) He contends that 13 of the 86 reports show that the investigated officer had a BWC deactivated for at least part of the complained-of incident. He alleges that the 13 OPS reports — only 12 of which are in the record show disregard for the APD's written policies regarding BWC activation.

The Court finds that the reports in the record of this case did not put the City on notice by October 2018 of a need to train or supervise on adherence to BWC policies. In most of the OPS reports Plaintiff has provided, the investigative dispositions occurred on dates after the October 14, 2018, incident that is the subject of this case. (Doc. 173-31, 173-32, 173-35, 173-36, 173-37, 173-38, 173-39, 173-40, 173-41.) The City cannot have had notice of policy violations that were not yet found at the time of the incident here. Further, the facts underlying many of the citizen complaint/OPS reports are wholly dissimilar from the facts presented here. In nine of the twelve OPS reports in the record, for example, no arrests were made at all. The other three reports reflect different circumstances from those presented in this case, including, for instance, bar fights, armed robberies, and an officer's alleged destruction of property. There is, in other

(See, e.g., Doc. 173-31 (complaint against officer who allegedly failed to intervene in a fight); Doc. 173-34 (complaint against officer who was directing traffic and allegedly referred to complainant as "stupid"); Doc. 173-35 (complaint against officer who allegedly did not allow complainant "to tell his side of the story" when investigating a car accident); Doc. 173-36 (complaint against officer who allegedly yelled at complainant while responding to a car accident); Doc. 173-38 (complaint against officer for his handling of an altercation at a restaurant, which did not result in arrest or use of force); Doc. 173-39 (complaint against officer for his handling of a domestic dispute, which did not result in arrest or use of force); Doc. 173-40 (complaint against officer who allegedly "profiled" complainant by running his name for active warrants).)

(See Doc. 173-32 (complaint relating to officers' alleged conduct in responding to a dispute outside a bar after the complainant was "attacked" by "people he did not know"); Doc. 173-37 (complaint against officers who allegedly failed to properly investigate an armed robbery); Doc. 173-41 (complaint relating to officers' alleged conduct in responding to a dispute at complainant's apartment).)

words, little in these reports that could be said to put the City on notice of a need to train on BWC policy to avoid violations of the kind that allegedly occurred here. Connick, 563 U.S. at 62, 131 S.Ct. 1350 ("A pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference for purposes of failure to train.") (internal quotation marks omitted).

Tolston also points to a December 2018 report by the Office of the City Auditor, which found that, in a random sample of 150 BWC videos uploaded by Atlanta police officers, only about 30%-46% of the videos complied with department BWC policies on activation and deactivation. That report did indeed find widespread non-compliance with APD policy on BWCs, and it made recommendations for improvement. (Doc. 173-17.) But it doesn't help Plaintiff on the matter of notice because it was issued two months after the incident in this case. Lastly, Tolston cites certain administrative orders enacted by Atlanta's Mayor in 2020 relating to police use-of-force and BWC policies (Doc. 171 at 29-34), but they do not provide evidence of notice for a need for training either because they too post-date the incident here.

Having found that Plaintiff failed to put forth evidence that the City was on notice of a need to provide training and supervision to prevent the kinds of violations alleged here, the Court need not address the question of deliberate indifference.

3. Causation

Even if Plaintiff had shown notice and deliberate indifference, his claim would fail because Plaintiff does not satisfy the causation element. That is, no reasonable jury could find that the alleged failure to address issues of compliance with BWC policy was the "moving force" that "actually caused" Plaintiff's alleged constitutional injuries. Connick, 563 U.S. at 59 n.5, 131 S.Ct. 1350.

There is simply no record evidence here to permit a jury to find that the alleged injury would have been avoided if the officers had been trained "under a program that was not deficient in the identified respect." Favors, 849 F. App'x at 821 (citation omitted). Plaintiff offers no expert witness or other evidence to connect the dots between the failure to train and the injury. On the particular facts of this case, the causation requirement has not been met. See Edwards for Blasingame v. Grubbs, No. 1:19-CV-2047-SCJ, 2022 WL 4363631, at *7 (N.D. Ga. Sept. 14, 2022) (finding that "even if Plaintiff showed a persistent failure to comply with or enforce the APD's BWC policies, that failure was not shown to have resulted in a widespread use of excessive force. As such, there is a fatal disconnect between the BWC policy or custom and the excessive use of force in this case".); Leach v. Hoffman, No. 8:19-CV-330-CEH-CPT, 2022 WL 900465, at *18 (M.D. Fla. Mar. 28, 2022) (plaintiff failed to show that neglecting to equip deputies with body cameras

Cf. Vineyard, 990 F.2d at 1213 (district court did not err in denying motion for directed verdict for defendant on Monell claim, where expert witness testified that the use of excessive force on plaintiff "would not have occurred" if the county had certain reporting and investigatory policies in place).

In Edwards for Blasingame, Judge Jones further stated:
[T]he causal relationship between use of BWCs and the use of excessive force in this case is too tenuous to support Plaintiff's Monell claim. No Eleventh Circuit court has held otherwise, and the Court has no reason to believe that the Eleventh Circuit would favor such a theory. Accordingly, the Court finds that Plaintiff's BWC Monell theory cannot support the jury verdict against the City of Atlanta.
Id. at *8.

was a "moving force" behind the violation of his rights); Reed v. City of Lavonia, 390 F. Supp. 2d 1347, 1369 (M.D. Ga. 2005). For the reasons discussed above, a reasonable jury could not find the City's alleged failure to train, supervise, and/or discipline was the moving force behind Tolston's alleged injuries.

Tolston also seeks to hold the City liable for its budgetary practices. He alleges that the City intentionally "hobbl[ed]" OPS by understaffing it, thus creating a backlog that was intended to prevent the timely investigation of complaints against officers. (Doc. 171 at 8, 22.) But Tolston "does not identify any 'pattern of injuries' linked to [the City's] budgetary decisions[.]" McDowell v. Brown, 392 F.3d 1283, 1291 (11th Cir. 2004) (quoting Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 408, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)). Further, a municipality's liability "cannot be dependent on the scant likelihood that its budget decisions would trickle down the administrative facets and deprive a person of his constitutional rights. Instead, liability must be premised on a finding that 'this' budget decision was 'highly likely to inflict the particular injury' [plaintiff] suffered." Id. at 1292 (quoting Brown, 520 U.S. at 412, 117 S.Ct. 1382) (emphases in original). To "test the link" between a plaintiff's injury and the municipality's budgetary decision, a court should look to whether the City "should have known that [plaintiff's] injuries were a 'plainly obvious consequence' of that decision." Id. (quoting Brown, 520 U.S. at 412, 117 S.Ct. 1382). Here, Plaintiff has made no such showing.

In sum, Tolston has failed to show triable issues of fact as to the municipal policy and causation elements of his Monell claims. The City of Atlanta is therefore entitled to summary judgment.

Tolston briefly argues that this is one of the rare instances in which "a single event can show the need for training" because it is "blatantly obvious." (Doc. 171 at 36.) It is true that, under a narrow set of circumstances, a plaintiff need not establish a pattern of similar constitutional violations because "the unconstitutional consequences of failing to train" are "patently obvious." Connick, 563 U.S. at 64, 131 S.Ct. 1350. But "[t]he Supreme Court has hypothesized a single example of this rare situation: a municipality's failure to train officers about the constitutional limits on the use of deadly force with knowledge that those officers will be armed and expected to use those weapons in the course of their duties." Landau v. City of Daytona Beach, No. 21-12947, 2023 WL 6622208, at *17 (11th Cir. Oct. 11, 2023) (citing Connick, 563 U.S. at 63-64, 131 S.Ct. 1350). The use of deadly force is not at issue in this case.

D. Claims Against Defendant Rodney Bryant

There are three claims asserted against "all Defendants," including Defendant Bryant: (1) First Amendment retaliation (Count 9), (2) "abuse of process and malicious prosecution" (Count 15); and (3) "negligent hiring/failure to supervise and train" (Count 17). (Doc. 1.) Bryant, the former APD Chief of Police, "is sued in his official capacity only[.]" (Doc. 171 at 3; Doc. 1 at 1.) In other words, the claims against him are equivalent to claims "against the local government entity he represents" — i.e., the City of Atlanta. Vineyard, 990 F.2d at 1210; see also Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1309 (11th Cir. 2009) ("A claim asserted against an individual in his or her official capacity is, in reality, a suit against the entity that employs the individual."). As discussed above, Tolston has failed to show evidence that would enable a jury to find in his favor on the municipal liability claims. His request for injunctive relief is denied for the reasons stated below. Summary judgment is therefore granted as to the official capacity claims against Bryant (Counts 9, 15, and 17).

V. Plaintiff's Motion for Preliminary Injunction (Doc. 202)

On July 14, 2023, nearly three years after filing this lawsuit, Tolston filed a motion "for a hearing on preliminary injunctive relief against the City of Atlanta"

or in the alternative, a "request for a consolidated hearing and bench trial on the merits for permanent injunctive relief." (Doc. 202.) In it, Tolston argues that he has a substantial likelihood of success on the merits of his excessive force and malicious prosecution claims, and that he will be irreparably harmed "by increased instances of unconstitutional conduct" in the absence of an injunction. (Id. at 10.) The relief requested in the motion is to "enjoin officers of the Atlanta Police Department from deactivating their body worn cameras at any point while inter[acting] with a citizen who is detained or in their custody." (Id. at 1.) The Court will construe the motion as one for a preliminary injunction.

To obtain a preliminary injunction, a plaintiff must establish: "(1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury if the injunction were not granted; (3) that the threatened injury to the plaintiffs outweighs the harm an injunction may cause the defendant; and (4) that granting the injunction would not disserve the public interest." Levi Strauss & Co. v. Sunrise Int'l Trading Inc., 51 F.3d 982, 985 (11th Cir. 1995).

Putting aside the standing problems associated with his request, Tolston's motion must be denied because he does not have a substantial likelihood of success on the merits. As stated above, the City is entitled to summary judgment on Tolston's municipal liability claims. As such, there is no likelihood of success on the merits, and the request for injunctive relief must fail. See LSSi Data Corp. v. Comcast Phone, LLC, 696 F.3d 1114, 1124 (11th Cir. 2012) ("Having concluded that [plaintiff] failed to establish a substantial likelihood of success on the merits of its ... claims ..., we need not address the additional elements required for a preliminary injunction.") (internal quotation marks omitted). Tolston's construed motion for preliminary injunctive relief (Doc. 202) is DENIED.

Plaintiff has not shown any real or immediate threat that he will be injured by the challenged practice in the future. See City of Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983).

Tolston's motion for leave to file a reply brief in support of his motion for a preliminary injunction exceeding the page limit is DENIED AS MOOT. (Doc. 205.)

VI. Miscellaneous Motions A. Plaintiffs Motion to Join APD Chief Darin Schierbaum (Doc. 204) and Motion to Substitute Darin Schierbaum for Rodney Bryant (Doc. 210)

Tolston filed a motion to join current APD Chief of Police Darin Schierbaum as a defendant (Doc. 204). He also moved to substitute Schierbaum for Defendant Bryant (Doc. 210). Because Tolston sued Bryant in his official capacity and seeks to join Schierbaum in his official capacity, Schierbaum was automatically substituted as a party upon assumption of office. Fed. R. Civ. P. 25(d). Given that the City of Atlanta is granted summary judgment, the motions are DENIED as MOOT.

B. Motion for Judicial Notice and to Join Atlanta Mayor Andre Dickens (Doc. 216) 1. Request for Judicial Notice

Tolston asks the Court to take judicial notice of alleged facts that he says are relevant to his claims against the City. They are as follows:

• "[T]he City of Atlanta is Home to Approximately 500,000 Citizens";

• "About One Percent of [Atlanta's] Total Population, or 5,000 Atlant[a]ns, Are Without the Basic Human Right of Housing and Sleep in the Street or Shelter Every Night in the City of Atlanta";

• "Mayor Andre Dickens Has Not Taken ANY Action on Body Cameras Since Becoming Mayor for the City of Atlanta";

• "An Officer, Not Equipped With a Body Worn Camera, Shot and Killed Jimmy Atchison the Year Following Plaintiff's Complaint; Thirteen Others Involving Body Worn Cameras; and the City's Auditor's Report on Body Cam Non-Compliance";

• "South Atlanta, South of [I]nterstate 20, is Without a Single Medical Center While Northern Atlanta/Fulton County is Home to at Least Three";

• "The City of Atlanta Entered Into a 600 Million Contract in 2019 for 127 Rail Cars But Has Not Expanded Rail Service in South Atlanta"; and

• "Mayor Andre Dickens is Proceeding with the Construction of a 90-million-dollar Police Facility, and also Challenging the Signatures on a Ballot Referendum to Stop the Facility[.]"

Judicial notice may be taken of an adjudicative fact that is "not subject to reasonable dispute because it[] is generally known within the trial court's territorial jurisdiction; or can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). "Under Rule 201 of the Federal Rules of Evidence, a court may take judicial notice on its own' or 'must take judicial notice if a party requests it and the court is supplied with the necessary information." Lodge v. Kondaur Capital Corp., 750 F.3d 1263, 1273 (11th Cir. 2014) (citation omitted; emphasis in original). "[A] court's authority to take judicial notice under Rule 201 is limited to notice of adjudicative facts, which are defined as the facts of the particular case which relate to the parties. A court may thus refuse to take judicial notice of facts that are irrelevant to the proceeding." Martincek v. LVNV Funding, LLC, No. 1:16-CV-03587-ELR-JFK, 2017 WL 2903356, at *2 (N.D. Ga. Mar. 16, 2017) (alterations adopted) (citations omitted); see also United States v. Falcon, 957 F. Supp. 1572, 1585 (S.D. Fla. 1997), aff'd, 168 F.3d 505 (11th Cir. 1999) ("[A] court may refuse to take judicial notice of facts that are irrelevant to the proceeding[.]") (citations omitted). The facts listed above each concern extraneous matters, matters that post-date Tolston's arrest, or general grievances against city management unrelated to this case. In a legal sense — and this is a legal proceeding — none is relevant.

2. Request to Join Mayor Dickens as a Defendant

Tolston seeks to join Mayor Dickens in his official capacity as an indispensable party under Rule 19. Tolston argues that Mayor Dickens is indispensable to his municipal liability claims because Mayor Dickens is "a [p]ossible [c]hief [p]olicymaker [r]egarding [b]ody [w]orn [c]ameras[.]" (Doc. 216 at 16.) The City has prevailed on its motion for summary judgment, and the addition of Mayor Dickens as a defendant would have had no effect on that outcome. Tolston's request to join Mayor Dickens is denied.

Tolston's motion to take judicial notice and to join Mayor Andre Dickens as an indispensable party (Doc. 216) is DENIED. C. Plaintiff's Second Motion for Judicial Notice (Doc. 222)

Tolston also filed two motions related to the above motion to take judicial notice and to join Mayor Andre Dickens. First, he filed a motion to supplement the motion with various documents that "show[] that the City of Atlanta literally has millions of dollars from everything from dash cameras to cute rail cars, but not hospitals or homeless people or body worn cameras." (Doc. 217.) The documents are not relevant. Tolston's motion to supplement (Doc. 217) is DENIED. Second, Tolston filed a motion for leave to file an overlength reply brief of 48 pages in support of his motion to take judicial notice and to join Mayor Dickens. (Doc. 226.) He argues that an overlength brief is "necessary to respond" to Defendants' response brief, but he does not say why. The motion (Doc. 226) is DENIED.

On December 26, 2023, Tolston filed another motion to take judicial notice. (Doc. 222.) In this motion, he asks the Court to take judicial notice of the alleged fact that, on May 4, 2022, Officer Holland shot and killed a man in the line of duty. Officer Holland is not a defendant in this matter, and the alleged shooting occurred over three years after Tolston's arrest. Tolston does not sufficiently explain how this incident is relevant to his case. A court may decline to take judicial notice of facts that are not relevant. Martincek, 2017 WL 2903356, at *2. The motion (Doc. 222) is DENIED.

Tolston filed a motion for an extension of time (Doc. 227) to file a reply brief in support this motion. Tolston fails to demonstrate good cause for a deadline extension. The motion (Doc. 227) is DENIED.

D. Plaintiff's Motion to Compel (Doc. 225)

On January 16, 2024, Tolston filed a motion to "compel disclosure of Officer Lawrence Holland's body-worn camera footage from the May 4, 2022 shooting death of Rogers Kyaruzi." (Doc. 225 (cleaned up).) Discovery is closed, Holland is not a party, and Holland's alleged conduct in May 2022 is not relevant to Tolston's October 2018 arrest. The motion (Doc. 225) is DENIED.

Tolston filed a motion for extension of time to file a reply in support of his motion to compel. (Doc. 232.) Discovery has closed, the time to file motions to compel is over, and the matter is not relevant to this case. The motion (Doc. 232) is DENIED.

E. Plaintiff's Third Motion for Judicial Notice (Doc. 231)

Tolston asks the Court to take judicial notice that "Georgia State Patrol troopers have shot and killed twelve citizens, including five in Atlanta, between January 1, 2020 and December 31, 2023, without being equipped with body cameras." (Doc. 231.) He argues that these incidents are relevant to his request for injunctive relief. The motion for preliminary injunctive relief has been denied, and consideration of these alleged facts would not have altered the result. Further, Georgia State Patrol is not connected to this case. Tolston's motion to take judicial notice (Doc. 231) is DENIED.

F. Motion to Waive PACER Fees (Doc. 218)

On November 27, 2023, Tolston filed a motion "seeking an order waiving P[ACER] fees related to accessing the record in the instant case until the matter is closed." (Doc. 218 at 1.) "To be eligible for an exemption from PACER user fees, the requesting party must show that an exemption is necessary in order to: (1) avoid unreasonable burden; and (2) promote public access to information." Hatcher v. G-P Wood & Fiber Supply, LLC, No. 3:07-CV-080-JTC, 2008 WL 11343393, at *1 (N.D. Ga. Feb. 6, 2008) (citing 28 U.S.C. § 1914 (Electronic Public Access Fee Schedule)). "A party must demonstrate that both standards have been met in order for a court to grant an exemption from payment of this fee." Id. "User fees should not be waived in the absence of exceptional circumstances." Id. (citing Morales v. Higher Educ. Serv. Corp., 6:00-BK-002888-JRM, 2004 WL 3202211, at *1 (Bankr. M.D. Fla. Nov. 18, 2004)). Exemptions

from user fees should be granted as an exception and not the rule. 28 U.S.C. § 1914 (Judicial Conference Policy Notes); see also Sedlacek v. Ocwen Fin. Corp., No. 1:21-CV-04967-WMR, 2023 WL 2595624, at *6 (N.D. Ga. Jan. 12, 2023) ("Exemptions from PACER fees are uncommon[.]").

Tolston asks the Court to waive his PACER fees because he has spent hundreds of dollars accessing the lengthy record in this case through PACER, and such a waiver is allegedly needed "to ensure the matter remains a fair fight." (Doc. 218.) Tolston has not shown, or argued, that an exemption is necessary to "avoid unreasonable burden" or to "promote public access to information." The substantial size of the docket is largely attributable to Plaintiff's numerous and often frivolous filings. Under these circumstances, Tolston has not shown that he should be granted an exemption from PACER fees. His motion (Doc. 218) is therefore DENIED.

VII. Conclusion

As set forth in this order, the pending motions in this case are adjudicated as follows:

Motion Document Disposition Number Plaintiff's motion for leave Doc. 88 Denied to amend his complaint City of Atlanta's motion for Doc. 140 Granted summary judgment Individual Defendants' Doc. 141 Denied with respect to motion for summary Plaintiff's Fourth judgment Amendment false arrest and Fourth Amendment excessive force claims against Wadsworth. Granted with respect to all other claims.

Plaintiff's motion for leave Doc. 199 Withdrawn (Doc. 233) to file a reply to Defendants' responses to Plaintiff's amended statement of additional material facts Plaintiff's construed Doc. 202 Denied motion for preliminary injunctive relief Plaintiff's motion to join Doc. 204 Denied as moot City of Atlanta Chief of Police Darin Schierbaum Plaintiff's motion for leave Doc. 205 Denied as moot to file an overlength reply brief in support of his motion for preliminary injunctive relief Plaintiff's motion to join Doc. 208 Denied Officer Lawrence Holland as an indispensable party Plaintiff's motion to Doc. 210 Denied as moot substitute Darin Schierbaum for Defendant Rodney Bryant Plaintiff's motion to take Doc. 216 Denied judicial notice and join Mayor Andre Dickens as an indispensable party Plaintiff's motion for leave Doc. 217 Denied to supplement the motion seeking judicial notice Plaintiff's motion to waive Doc. 218 Denied PACER fees Plaintiff's motion for Doc. 222 Denied judicial notice Plaintiff's motion to compel Doc. 225 Denied Plaintiff's motion to file an Doc. 226 Denied overlength reply brief in

support of his motion for judicial notice and to join Mayor Andre Dickens Plaintiff's motion for an Doc. 227 Denied extension of time to file a reply brief in support of his motion to take judicial notice Plaintiff's motion for Doc. 231 Denied judicial notice Plaintiff's motion for an Doc. 232 Denied extension of time to file a reply brief in support of his motion to compel Plaintiff's motion to Doc. 233 Granted withdraw his motion for leave to file a reply to Defendants' responses to Plaintiff's amended statement of additional material facts, Doc. 199 Plaintiff's motion to Doc. 236 Denied withdraw his motion for leave to file a first amended complaint

Defendants' motion for sanctions will be addressed in due course. (Doc. 234.) In the meantime, Plaintiff is reminded of his obligations under Rule 11 and is cautioned to refrain from filing frivolous motions.

The parties are DIRECTED to file their joint, proposed pretrial order within 30 days. The parties are reminded that this Court offers litigants a dispute resolution program by which parties may request mediation with a United States Magistrate Judge. If the parties are interested in availing themselves of this procedure, they may file a joint motion requesting that the case be referred for mediation.

SO ORDERED this 14th day of March, 2024.