Jones v. UNIFIFED GOVERNMENT OF ATHENS-CLARKE COUNTY et al

Filing 46

ORDER granting 34 motion to dismiss for insufficient service of process; granting 30 Motion for Summary Judgment. Ordered by U.S. District Judge CLAY D LAND on 07/31/2014 (jcs)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
CAROLYN JONES,

*

Plaintiff,

*

vs.

*
CASE NO. 3:13-CV-40 (CDL)

UNIFIED GOVERNMENT OF
CLARKE COUNTY, et al.,

ATHENS- *
*

Defendants.
*
O R D E R
During a man-hunt for a violent suspect who allegedly shot
two police officers, several law enforcement agencies executed a
warrant to search for the suspect at Plaintiff’s residence.
it turns out, the suspect was not there.
several

hour

wait

outside

her

home

and

As

Having to endure a
suffering

damage

to

property due to the search, Plaintiff seeks compensation from
the law enforcement officers who participated in the search and
their respective agencies.

Plaintiff alleges that their conduct

violated her Fourth Amendment right to be free from unreasonable
searches and seizures and her Fourteenth Amendment rights to Due
Process and Equal Protection and that they are liable for false
imprisonment,

false

arrest,

and

malicious

prosecution

under

Georgia law. 1

1

Plaintiff also complains of an alleged violation of the Freedom of
Information Act, but because she fails to address this claim in her

Agents of the Federal Bureau of Investigation (“FBI”) and
officers

from

participated

the

in

Athens-Clarke

the

search. 2

County

Plaintiff

Police
asserts

Department
claims

for

damages against the federal agents and local police officers and
their

respective

enjoin

them

agencies.

from

In

continuing

addition,

Plaintiff

policies

and

seeks

practices

to
of

unreasonably executing search warrants.
Plaintiff names the following federal defendants:
the

the FBI;

United

Mark

States

Department

of

Justice

(“DOJ”);

F.

Giuliano, 3 in his individual and official capacity as FBI Special
Agent in Charge; Daron Cheney, in his individual and official
capacity

as

individual
General

FBI

and

and

Special

official

head

Defendants”). 4

of

Agent;
capacity

the

DOJ

and
as

Eric

Holder,

United

States

(collectively,

the

in

his

Attorney
“Federal

Although Plaintiff is represented by counsel,

neither her Complaint nor her briefing is clear as to the basis
for

her

claims

against

the

Federal

Defendants.

The

Court

brief opposing summary judgment, this claim is deemed abandoned.
Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.
1995). Further, Plaintiff cites 42 U.S.C. § 1981 in her Complaint but
makes no reference to her race or racial discrimination of any kind in
her filings. Therefore, the Court also deems this claim abandoned.
2
The Court previously dismissed without prejudice the following
defendants from this action: the Georgia Bureau of Investigation
(“GBI”), GBI Director Vernon Keenan in his individual and official
capacity, Athens-Clarke County Sheriff Ira Edwards, Jr. in his
individual and official capacity, and an Officer Parker.
3
Plaintiff mistakenly spells Giuliano’s last name as Guiliani.
4
The Court assumes for purposes of these motions only that Plaintiff
intends to sue Cheney and Holder in their individual and official
capacities.

2

assumes that she intends to assert federal claims pursuant to
the Federal Tort Claims Act, 28 U.S.C. §§ 2671-80, and Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971).
Plaintiff names the following local government Defendants:
the Unified Government of Athens-Clarke County; Joseph Lumpkin,
in his individual and official capacity as Chief of the AthensClarke County Police Department; and Mike Hunsinger and Ryan
McGee, in their individual and official capacities as officers
with the Athens-Clarke County Police (collectively, the “AthensClarke County Defendants”). 5

She asserts claims against these

Defendants for the alleged constitutional violations pursuant to
42 U.S.C. § 1983 and for state law tort claims.
The Federal Defendants have filed a motion to dismiss for
insufficient service and a motion for summary judgment (ECF No.
34).

The Athens-Clarke County Defendants have filed a motion

for summary judgment (ECF No. 30).
the

remainder

Defendants’

of

motion

this

Order,

to

dismiss

For the reasons explained in

the
and

Court
the

grants

the

Athens-Clarke

Federal
County

Defendants’ motion for summary judgment.

5

The Court assumes for purposes of these motions only that Plaintiff
intends to sue Hunsinger and McGee in their individual and official
capacities.

3

I.

The Federal Defendants’ Motion (ECF No. 34)
The Federal Defendants seek dismissal of all claims against

them based on Plaintiff’s failure to properly serve them under
Rule 4 of the Federal Rules of Civil Procedure.

They also seek

summary judgment on the merits of Plaintiff’s claims.

Since

service is jurisdictional, the Court first addresses the Federal
Defendants’

service

represented

by

response

to

defense.

counsel,

Remarkably,

failed

to

present

the

insufficiency

Federal

Defendants’

of

service;

nor

is

Plaintiff,

motion

there

any

in

dismiss

to

is

argument

any

who

for

evidence

in

the

record that the Federal Defendants were ever properly served.
After Plaintiff filed her Complaint in state court, the
Federal Defendants removed the action to this Court in April
2013.

The Federal Defendants raised failure to effect proper

service as a defense.

In fact, the United States Attorney’s

Office sent two letters to Plaintiff explaining that the United
States would not be waiving service and that the attempts at
service

of

process

on

the

United

States

were

insufficient.

Letter from M. Moore to J. Mathis (May 6, 2013), ECF No. 11;
Letter from M. Moore to J. Mathis (May 16, 2013), ECF No. 15.
In response, Plaintiff did make another attempt to serve the
civil-process clerk of the United States attorney’s office in
Macon,

Georgia,

Defendants.

addressing

Fed.

Defs.’

the
Mot.

4

FBI,
for

Holder,
Summ.

J.

and
Ex.

Giuliano
A,

as

Service

Envelopes, ECF No. 34-2.

But Plaintiff made no other attempts

at service according to the present record.
To serve a United States agency or officer in an official
or individual capacity, a party must properly serve the United
States in addition to other requirements.

To serve the United

States by mail in the Middle District of Georgia, a party must
send

a

copy

certified

of

mail

the

to

(1)

summons
the

and

complaint

civil-process

by

clerk

registered
at

the

or

United

States attorney’s office in Macon, Georgia and (2) the Attorney
General of the United States at Washington, D.C.
P. 4(i)(1).

Fed. R. Civ.

Plaintiff failed to present any evidence that she

appropriately mailed a copy of the summons and complaint to the
Attorney General.

Plaintiff also failed to present any proof

that she sent a copy of the summons and complaint by registered
or certified mail to the agencies themselves pursuant to Rule
4(i)(2).
Giuliano,

And

there

Cheney,

or

is

no

Holder

evidence
in

that

their

Plaintiff

individual

served

capacities

pursuant to Rule 4(i)(3) and 4(e).
Although

the

Federal

Defendants

raised

insufficiency

of

service at the inception of this litigation, Plaintiff has still
failed to properly serve these Defendants more than a year since
the

action

was

initiated.

Moreover,

Plaintiff

excuse for failing to effect timely service.

provided

no

Accordingly, the

Federal Defendants’ motion to dismiss (ECF No. 34) is granted.

5

Fed.

R.

Civ.

prejudice,
barred

P.

the

from

Defendants

4(m).

Court

finds

re-filing
because

Although
that

her

of

this
even

if

Complaint

the

dismissal

Plaintiff

against

expiration

is

of

without
would

these

the

be

Federal

statute

of

limitations, this dismissal is warranted in light of Plaintiff’s
failure to provide any excuse for failing to serve the Federal
Defendants in a timely manner.

The Court thus grants their

motion and dismisses all claims against them. 6
II.

The Athens-Clarke County Defendants’ Motion (ECF No. 30)
The

Athens-Clarke

“Defendants”)

seek

County

summary

Defendants

judgment

on

all

(hereinafter,
claims.

The

individual Defendants argue that they are entitled to qualified
immunity on the § 1983 claims and official immunity on the state
law

claims.

The

Unified

Government

of

Athens-Clarke

County

maintains that it cannot be liable pursuant to § 1983 because no
evidence exists that it had any policy or practice that played
any

role

in

the

alleged

constitutional

violations.

It

also

claims that it is entitled to sovereign immunity on the state
law claims.

6

The Court notes again that Plaintiff is represented by counsel.
Therefore, this dismissal should come as no surprise and is
distinguishable from those cases in which a pro se litigant may be
entitled to some benefit of the doubt. Quite frankly, Plaintiff would
be hard-pressed to show any prejudice from this dismissal.
A review
of the Federal Defendants’ motion for summary judgment reveals that
even if they had been properly served, they are likely entitled to
summary judgment on the merits.

6

SUMMARY JUDGMENT STANDARD
Summary judgment may be granted only “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ.

P. 56(a).

In

determining

whether

a

genuine

Fed. R.

dispute

of

material fact exists to defeat a motion for summary judgment,
the evidence is viewed in the light most favorable to the party
opposing summary judgment, drawing all justifiable inferences in
the opposing party’s favor.
477 U.S. 242, 255 (1986).

Anderson v. Liberty Lobby, Inc.,
A fact is material if it is relevant

or necessary to the outcome of the suit.

Id. at 248.

A factual

dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.

Id.

FACTUAL BACKGROUND
Because Plaintiff failed to file responses to Defendants’
statement of material facts in accordance with Local Rule 56,
the

Court

citations

deems
to

those

the

material

record

as

facts

which

admitted

and

are

supported

reviews

determine whether a genuine fact dispute exists.

them

by
to

M.D. Ga. R.

56; Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1303 (11th Cir.
2009).

Those facts are as follows.

On the afternoon of March 22, 2011, a kidnapping and armed
robbery victim reported that he had just escaped from the trunk
of

a

vehicle

after

being

robbed

7

at

gunpoint

by

Jamie

Hood.

Defs.’

Mot.

for

Summ.

J.

[hereinafter

Mot.]

Ex.

1,

Affidavit/Application & Search Warrant 1-2, ECF No. 30 at 4-5.
When interviewed later, the victim told law enforcement that
Hood told him before the incident that he was going to kill a
police officer.

Id. at 1, 4.

The Athens-Clarke County Police

Department dispatched Officer Tony Howard, who was familiar with
Hood, to apprehend him.

Id. at 3.

Howard identified Hood’s

brother driving a vehicle and initiated a traffic stop.
2-3.

Hood

was

also

in

the

vehicle

but

jumped

out

Id. at
of

the

passenger side, ran toward Howard inside his vehicle, and shot
him.

Id.; Mot. Ex. 3, Lumpkin Decl. ¶ 4, ECF No. 30 at 18.

While

fleeing

Christian,

the

who

area,

died

at

Hood
the

shot

scene.

Search Warrant 2; Lumpkin Decl. ¶ 5.
she

was

carjacked

at

another

gunpoint

identified Hood as the assailant.

officer,

Buddy

Affidavit/Application

&

A woman also reported that
that

afternoon

Id. at 3.

and

later

Federal, state,

and local law enforcement collaborated to locate and apprehend
Hood.
Plaintiff’s daughter-in-law told law enforcement that she
saw Hood at Plaintiff’s residence heavily armed with firearms
the morning of March 23, 2011 when she went to pick up her
child.

Id.

at

3-4;

see

Jones

Dep.

24:2-25:24,

ECF

No.

33

(describing how the informant had a child with and later married
Plaintiff’s son).

GBI Agent Rebecca Shaw followed up on the tip

8

and

interviewed

the

informant

on

March

Affidavit/Application & Search Warrant 3-4.

24,

2011.

Based on the above

facts, Detective Charles Ivey of the Athens-Clarke County Police
Department

applied

for

a

search

warrant

for

Plaintiff’s

residence with a “no knock” provision, which a magistrate judge
issued on March 24, 2011 at 12:30 P.M.
When

law

enforcement

began

Id. at 1-6.

gathering

outside

Plaintiff’s

residence on the morning of March 24, 2011, Plaintiff came out
in a robe with no buttons, a bra, night pajamas, and bedroom
shoes

with

no

socks.

Jones

Dep.

59:16-21.

She

permitted to re-enter the house during the search.
an

hour

or

declined.

two,

an

agency

offered

her

a

was

not

After about

coat,

which

she

Id. at 59:25-60:18.

The search lasted until approximately 4:00 PM; it took that
long because law enforcement had to take special precautions to
search the house given their understanding that the suspect was
armed

and

dangerous.

Guerra

Dep.

30:5-31:20,

ECF

No.

37.

First, the officers attempted to negotiate with any occupants in
the

house

to

surrender,

and

then

they

sent

a

University

of

Georgia Police Department robot into the house to search for
occupants.

Id.; see also id. at 17:3-15 (estimating four hours

of preparation, including one hour for the robot search).

They

also sent a police dog into the house to detect any occupants
before sending officers inside.

Id. at 31:21-32:15.

9

During

those

efforts,

the

FBI

SWAT

scene between 11:00 AM and 12:00 PM.

team

arrived

on

Id. at 9:3-18.

the

The FBI

SWAT team planned their entry and spoke with the informant, who
was on the scene in a GBI vehicle, about the layout of the
house.

Id.

at

12:19-13:5;

26:25-28:1.

They

received

information that there were compartments in the house, including
a trap door in the bathroom floor, where Hood could be heavily
armed and hiding.

Id. at 22:8-23:1.

They planned to locate any

individuals inside the house by “standard operation of closequarter

battle,”

while

other

members

including vehicles and outbuildings. 7

secured

the

exterior,

Id. at 13:1-14:4.

After

planning their entry and waiting for law enforcement to obtain
the search warrant and complete their other efforts, the FBI
SWAT team made initial entry into the house.
6, 37:4-18.

Guerra Dep. 17:3-

Agent Lawrence Guerra of the FBI SWAT team recalls

that his partner might have thrown a flash bang, id. at 18:1724, which is “a diversionary device [that] sets off a loud bang
and a very big flash [of] bright light . . . to divert someone’s
attention if they are waiting for you when you’re coming through
that area,” id. at 21:14-24.

The FBI SWAT team cleared the

house and left around 4:00 PM.

Id. at 33:5-8.

7

Law enforcement

FBI SWAT team training and certification includes “close-quarters
battle, which is entering and securing structures.” Id. at 7:15-8:4.

10

apprehended Hood at another residence the next day.

Id. at

34:17-35:13.
A.

The Individual Defendants

Lumpkin is the Chief of Police for Athens-Clarke County.
Lumpkin states that Plaintiff was not in custody and that he did
not direct any of his officers “to detain her in any fashion” or
prevent her from relieving herself in private.
Lumpkin Decl. ¶ 15, ECF No. 30 at 22.
to family members at the scene.
once as he was leaving.
Hunsinger,
Police

a

Id.

ECF

Plaintiff’s

No.

was

30

at

at

residence

Plaintiff only saw Lumpkin

with

the

26-27.

came

in,

expressed a desire to go there.

the

command

apprehend Hood on March 24, 2011.
¶¶ 2-3,

Lumpkin saw her talking

Jones Dep. 55:10-25.

lieutenant

Department,

Mot. Ex. 3,

Athens-Clarke
center

County

established

to

Mot. Ex. 5, Hunsinger Decl.
When
GBI

the

information

Director

Id. ¶¶ 3-4.

Vernon

about
Keenan

Hunsinger drove

him there because he was already familiar with the residence.
Id. ¶ 4.

Hunsinger did not participate “in any aspect of the

actual search of the premises,” did not touch Plaintiff, and did
not issue any directions regarding Plaintiff.

Id. ¶¶ 5-6.

He

did observe Plaintiff interacting with family members and others
at the scene.

Id. ¶ 5.

Even though Plaintiff did not see him

or otherwise know he was there, she explained that she included

11

Hunsinger in the suit because he was one of the officers out
there and “they all work together.”
McGee

was

head

of

the

Jones Dep. 58:1-12.

Athens-Clarke

Department Strategic Response Team.
¶ 2, ECF No. 30 at 29.

County

Police

Mot. Ex. 6, McGee Decl.

At the scene, that team functioned as a

backup team for the FBI SWAT team making first entry into the
house.

Id. ¶ 4.

McGee and his team entered the house after the

FBI SWAT team to conduct a secondary search.
did

not

use

property.

flash

bangs

or

otherwise

McGee and his team

cause

damage

to

the

search

was

Id. ¶ 5.
DISCUSSION

Plaintiff

argues

in

her

brief

that

the

unreasonable based on several factual allegations that are not
reflected in the statement of material facts and citations to
the

record

considered

by

the

Court.

While

the

Court

acknowledges the distressing nature of Plaintiff’s allegations,
Plaintiff, through her counsel, had a duty to follow the Court’s
rules

and

citation
Moreover,

file
to

a

statement

the

if

record

she

did

not

of

in

material

support

wish

to

facts

of
be

with

those

bound

specific

allegations.

by

Defendants’

statement of material facts, she had a duty to at least deny
Defendants’ factual statements.
Plaintiff’s
dereliction

counsel
of

did

Plaintiff’s

For some inexplicable reason,

neither.
counsel,

12

Notwithstanding
the

Court

has

the

carefully

reviewed Defendants’ citations to the record and determined that
no genuine dispute of material fact exists.

The Court also

notes that Plaintiff’s brief opposing summary judgment, which is
remarkable

for

its

scant

entirely unpersuasive.

citation

to

relevant

authority,

is

The Court first addresses Plaintiff’s

federal claims and then turns to her state law claims. 8
A.

Federal Claims

It is clear that the individual Defendants are entitled to
qualified

immunity

on

Plaintiff’s

§

1983

claims.

Qualified

immunity shields government officials performing discretionary
functions “from liability for civil damages insofar as their
8

Plaintiff appears to claim for the first time in her responsive brief
that Defendants should be liable because the tip from her daughter-inlaw was later discovered to be fabricated. Plaintiff never raised any
complaints about the search warrant itself or a lack of probable cause
in the Complaint, which complains only of how law enforcement executed
the search warrant.
While Defendants provided convincing argument
that no officer was plainly incompetent in concluding that the warrant
should issue under all the facts and circumstances based on Malley v.
Briggs, 475 U.S. 335 (1986), and its progeny, the Court need not reach
the issue because it is not properly before the Court. See Gilmour v.
Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (per
curiam) (“A plaintiff may not amend her complaint through argument in
a brief opposing summary judgment.”).
The Court also notes that in addition to her claims for damages,
Plaintiff seeks injunctive relief in her Complaint.
While no party
specifically addressed the issue, the Court finds these claims moot
because the man-hunt and search of Plaintiff’s residence occurred over
three years ago. See Bourgeois v. Peters, 387 F.3d 1303, 1308 (11th
Cir. 2004) (“Past injury from alleged unconstitutional conduct does
not in itself show a present case or controversy regarding injunctive
relief, if unaccompanied by current adverse effects.”). Plaintiff may
assert claims for damages for past injury, and there is nothing in the
record indicating a reasonable expectation that Plaintiff would be
subjected to the same action again.
See id.
Therefore, the Court
finds no actual case or controversy over which to exercise
jurisdiction for Plaintiff’s claim for injunctive relief, and it is
therefore dismissed.

13

conduct

does

not

violate

clearly

established

statutory

or

constitutional rights of which a reasonable person would have
known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

To

avail oneself of qualified immunity, the official first must
“prove that he was acting within the scope of his discretionary
authority when the allegedly wrongful acts occurred.”
Ferraro,
quotation

284

F.3d

marks

1188,

1194

omitted).

(11th

Then

Cir.

“the

2002)

burden

Lee v.
(internal

shifts

to

the

plaintiff to show that qualified immunity is not appropriate.”
Id.

It is beyond reasonable dispute that the law enforcement

officers

here

discretionary
Therefore,

must

factfinder

acting

authority

to

Plaintiff

were

overcome

could

point

within

when
the

to

executing
defense

evidence

conclude

the

that

a

of

of

search

which

the

a

their

warrant.

qualified

from

(1)

scope

immunity,
reasonable

official’s

conduct

violated a constitutional right and (2) the right was clearly
established at the time.

See Pearson v. Callahan, 555 U.S. 223,

232, 236 (2009) (holding that a court has discretion to decide
which of these two prongs to address first).

Plaintiff failed

to carry this burden.
The

record

establishes

that

once

Plaintiff

exited

the

house, she could not go back inside during the search operation,
which lasted over four hours.

The operation involved several

law enforcement agencies coordinating and executing the search

14

of her residence, pursuant to a search warrant for an armed
murder

suspect,

in
on

escalating
the

steps

property

and

for
was

safety
seen

reasons.

Plaintiff

remained

with

family

members.

Although she was minimally dressed in sleepwear, she

declined a jacket offered by an officer an hour or two into the
operation.

Pretermitting whether these circumstances establish

that Plaintiff was detained, they do not demonstrate that any
such detention was unreasonable or unconstitutional under the
circumstances.

See

Michigan

v.

Summers,

452

U.S.

692,

705

(1981) (holding that officers may lawfully detain occupants of a
premises

in

the

immediate

warrant of that premises).

vicinity

while

executing

a

search

But the Court does not even have to

resolve this issue because Plaintiff’s claims suffer from a more
fundamental flaw: she failed to point to any evidence that the
individual Defendants she named were involved in the specific
conduct of which she complains.
Plaintiff failed to dispute that Lumpkin did not detain her
or direct his officers to do so, that Hunsinger was only present
at the scene to give Keenan a ride and issued no directions
regarding Plaintiff, and that McGee and his team did not use
flash bangs
conducting

or

otherwise

cause

the

secondary

search

initial search.

damage
after

to

the

the

residence

FBI

SWAT

when

team’s

The summary judgment record simply contains no

evidence from which a reasonable factfinder could conclude that

15

the

individual

Plaintiff

Defendants

alleges

participated

violated

her

in

the

constitutional

conduct

rights,

that

and

it

certainly does not support a finding that their conduct violated
a

clearly

aware.

established

right

of

which

should

have

been

They are therefore entitled to qualified immunity.

To

the

individual

extent

that

Defendants

Plaintiff

should

be

be

subject

to

may

liable

capacity, that claim also fails.
may

they

supervisory

suggest

in

their

that

the

supervisory

While a government official
liability

absent

direct

participation, there must still be a causal connection between
the

actions

of

the

supervising

constitutional violation.

official

and

the

alleged

Cottone v. Jenne, 326 F.3d 1352, 1360

(11th Cir. 2003) (noting that supervisory liability cannot rely
on respondeat superior or vicarious liability).

Before imposing

such liability, Courts must find that a supervisor failed to
correct

subordinates

after

a

history

of

widespread

abuse

of

constitutional rights that would put the supervisor on notice of
a need to correct them, or that a supervisor’s “custom or policy
.

.

.

resulted

rights.”

in

Gonzalez

deliberate
v.

Reno,

indifference

325

F.3d

to

1228,

constitutional

1234

(11th

Cir.

2003); see also Brown v. Crawford, 906 F.2d 667, 671 (11th Cir.
1990) (explaining that the widespread abuse “must be obvious,
flagrant,
isolated

rampant

and

occurrences”).

of
No

continued
such

16

duration,

evidence

exists

rather

than

here.

The

record contains no evidence from which to infer that any of the
individual

Defendants

directed

any

subordinates

“to

act

unlawfully or knew that the subordinates would act unlawfully
and failed to stop them from doing so.”
1235.

Gonzalez, 325 F.3d at

For the reasons previously explained, Defendants Lumpkin,

Hunsinger,

and

Plaintiff’s

§

McGee
1983

are

entitled

claims

against

to

qualified

them

in

immunity

their

on

individual

capacities.
Plaintiff’s

claims

against

the

individual

Defendants

in

their official capacities are treated as claims against their
employer, Athens-Clarke County.
471-72

(1985).

Plaintiff

Brandon v. Holt, 469 U.S. 464,

failed

to

produce

any

evidence

supporting her § 1983 claim against Athens-Clarke County, which
can only be liable if its policy or custom was the moving force
behind the constitutional violation.

Monell v. Dep’t of Soc.

Servs., 436 U.S. 658, 694 (1978); Grech v. Clayton Cnty., 335
F.3d

1326,

1330

(11th

Cir.

2003).

Although

Plaintiff

makes

general conclusory allegations about unspecified policies, she
failed to produce evidence showing what those policies are and
how they contributed to the alleged constitutional violations.
At summary judgment, general arguments in a brief cannot create
genuine

factual

disputes.

Plaintiff

does

allege

that

Chief

Lumpkin was the final policymaker for Athens-Clarke County, but
she ignores the undisputed fact that he did not take any of the

17

actions alleged to be unconstitutional.

Plaintiff simply failed

to point to any evidence that would allow a reasonable jury to
infer the existence of an official policy or unofficial custom
of

Athens-Clarke

constitutional

County

rights.

that

caused

Accordingly,

a

deprivation

Athens-Clarke

County

of
is

entitled to summary judgment on Plaintiff’s § 1983 claim.
B.

State Law Claims

Plaintiff asserts state law claims of false imprisonment,
false

arrest,

and

malicious

Clarke County Defendants. 9

prosecution

against

the

Athens-

The Unified Government of Athens-

Clarke County has sovereign immunity from these claims, unless
that immunity has been waived.

See Gilbert v. Richardson, 264

Ga.

479

744,

747,

452

S.E.2d

476,

(1994)

(holding

that

the

extension of sovereign immunity to the state and its departments
and agencies also applies to counties); see also Athens-Clarke
Cnty. v. Torres, 246 Ga. App. 215, 217, 540 S.E.2d 225, 227
(2000)

(holding

County

is

Since

that

treated

Plaintiff

as

the
a

failed

Unified
county
to

Government

for

tort

demonstrate

of

Athens-Clarke

liability
that

this

purposes).
sovereign

immunity has been waived, Athens-Clarke County is entitled to
summary judgment on Plaintiff’s state law claims.

9

In her responsive brief, Plaintiff appears to raise for the first
time a claim under the Georgia Tort Claims Act, which the Court will
not consider. Gilmour, 382 F.3d at 1315.

18

The

individual

Defendants—Lumpkin,

Hunsinger,

and

seek official immunity from these state law claims.

McGee—

In Georgia,

officers can only be subject to suit if they are negligent in
performing ministerial functions or if “they act with actual
malice

or

with

actual

in

performing

Ga. Const. art I, § II, ¶ 9(d).

official functions.

intent

to

cause

injury”

Plaintiff

argues that the execution of a search warrant is a ministerial
act.

Am.

Compl.

ministerial
under

act

¶

6,

“is

conditions

ECF

No.

simple,

admitted

19.

But

absolute,

or

proved

to

she

and

is

wrong.

definite,

exist,

and

A

arising

requiring

merely the execution of a specific duty,” while a discretionary
act

“calls

for

the

exercise

of

personal

deliberation

and

judgment, which in turn entails examining the facts, reaching
reasoned

conclusions,

and

specifically directed.”

requiring

for
no

an

armed

on

them

in

a

way

not

Grammens v. Dollar, 287 Ga. 618, 619,

697 S.E.2d 775, 777 (2010).
warrant

acting

It is clear that executing a search

murder

judgment.

suspect

is

Therefore,

to

not

a

simple

overcome

act

official

immunity, Plaintiff must show that Defendants’ acts constitute
malice.

Plaintiff

failed

to

do

so.

Again,

the

record

establishes that Lumpkin did not detain or direct any of his
officers to detain Plaintiff in any fashion, that Hunsinger did
not participate in the search or issue any orders with regard to
Plaintiff, and that McGee caused no damage during his search.

19

Absent some evidence of malice, Lumpkin, Hunsinger, and McGee
are entitled to official immunity.
CONCLUSION
For

the

reasons

explained

above,

the

Court

grants

the

Federal Defendants’ motion to dismiss for insufficient service
of process (ECF No. 34) and the Athens-Clarke County Defendants’
motion for summary judgment (ECF No. 30).

IT IS SO ORDERED, this 31st day of July, 2014.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE

20