Fortson v. CITY OF ELBERTON et al

Filing 36

ORDER granting 26 Motion for Summary Judgment; denying 22 Motion for Summary Judgment; finding as moot 28 Motion to DismissOrdered by U.S. District Judge CLAY D LAND on 06/04/14 (bsh) ***

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
CAREY A. FORTSON,

*

Plaintiff,

*

vs.

*

CITY OF ELBERTON, JIMMY JORDAN,
DANIEL WHITE, JOSEPH DAVID,
SCOTT MARUNICH, and MARK WELSH,

*

CASE NO. 3:13-cv-97 (CDL)
*

Defendants.

*
O R D E R

After
evidence

receiving
of

a

complaints

local

of

ordinance

loud

music

violation,

and

law

observing

enforcement

officers, without a search warrant, entered Plaintiff’s business
premises and took
view.

photographs of persons and items in plain

Plaintiff maintains that this conduct violated his Fourth

Amendment

right

seizures.

to

be

Plaintiff

free

from

asserts

unreasonable

claims

under

42

searches
U.S.C.

§

and
1983

against the law enforcement officers who entered his business
without

a

warrant

and

took

photographs,

employer, the City of Elberton.

and

against

their

Although Plaintiff refers to

various legal authorities in his pro se Complaint, it is clear
from the pleadings and briefing that the focus of his claim is
the

alleged

violation

of

his

Fourth

Amendment

rights,

therefore, the Court addresses that claim in this Order.

1

and
The

Court declines to speculate about other possible claims one may
be able to infer from Plaintiff’s allegations.1
Plaintiff
judgment.

As

and

Defendants

explained

have

below,

filed
the

motions

Court

for

finds

summary

that

the

individual Defendants are entitled to qualified immunity, and
therefore, Plaintiff’s claims against them in their individual
capacities must fail.

The Court further finds that the claims

against the City of Elberton fail because no evidence exists
that the City had a policy or practice that played any role in
the alleged violation of Plaintiff’s Fourth Amendment rights.
Accordingly, Defendants’ Motion for Summary Judgment (ECF No.
26) is granted, and Plaintiff’s Motion for Summary Judgment (ECF
No. 22) is denied.
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

1

genuine

Fed. R.

dispute of

Plaintiff makes reference to a state law claim under the Georgia
Constitution which appears to be based on the First Amendment right to
freedom of association. Compl. ¶ 22, ECF No. 1. The Complaint does not set
forth a factual basis for a First Amendment Georgia Constitution claim. And
though Plaintiff referenced the claim in his summary judgment brief, he did
not point to any evidence in support of it.
The Court thus finds that
Plaintiff’s attempted First Amendment Georgia Constitution claim fails.
Plaintiff also claims Defendants violated 18 U.S.C. § 1801, the Video
Voyeurism Prevention Act. This Act makes it illegal to “capture an image of
a private area of an individual without their consent,” and defines “private
area” as “the naked or undergarment clad genitals, pubic area, buttocks, or
female breast of that individual.”
18 U.S.C. § 1801(a) & (b)(3).
It does
not apply here, and summary judgment is granted in Defendants’ favor on that
claim.

2

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.

FACTS
In the light most favorable to Plaintiff, the facts reveal
the following.

Plaintiff owned and operated Carey’s Arcade &

Game

establishment

Room,

an

with

arcade

style

tables, and space to rent for private parties.

games,

pool

For the evening

of July 20, 2012, Plaintiff rented space at the Game Room to
Jackie Hamm for a birthday party.

Plaintiff did not have a

liquor license and thus could not sell alcohol at the Game Room.
But

guests

at

the

birthday

party

paid

a

entitled them to “all they could drink.”

cover

charge

which

During the party,

Officer Joseph David of the Elberton Police Department received
a noise complaint from police dispatch, alerting him to loud
music at the Game Room.

He arrived on the scene around 12:38

a.m. and observed that loud music escaped the building whenever
a

door

opened.

official action.

He

left

the

Game

Room

without

taking

any

Less than an hour later Officer David received
3

a second complaint requiring him to return to the Game Room.

On

his second return, Officer David informed an individual outside
the Game Room that he would shut down the party if he received
additional complaints.

Officer David left the Game Room without

taking further action.
After
occasion,

Officer
the

David

police

left

the

department

Game

Room

on

this

received

a

third

second

complaint.

Officer David returned to the Game Room in response to that
complaint.

On this occasion, Officer David, who was accompanied

by Captain Jimmy Jordan, heard “loud music” emanating from the
Game Room while standing outside the building.

He also smelled

“a strong odor of marijuana in the air” outside but in close
proximity to the building.
ECF No. 32-1.

David Dep. Ex. P-4, Incident Report,

According to Plaintiff, by the time the officers

arrived this third time the lights inside the Game Room were
turned on and patrons were leaving the party.
Summ.

J.

Ex.

Nevertheless,

A,

Fortson

Officer

David

Dep.
and

building without a search warrant.

60:2-12,
Captain

Defs.’ Mot. for
ECF

Jordan

No.

26-3.

entered

the

While Officer David told the

DJ to turn off the music, Captain Jordan took photographs of the
inside

and

outside

of

ordinance violation.2

the

Game

Room

to

document

a

possible

Jordan Dep. 5:8-10, ECF No. 35.

2

The

It is a violation of the Elberton Code of Ordinances § 28-20 for “[a]ny
person [to] keep[] and maintain[], either by himself or others, a common,
ill-governed and disorderly house, to the encouragement of gaming, drinking,

4

purpose of the photographs was to show “the crowd and alcohol
being served.”

Jordan Dep. 6:4-8.

One photograph shows an open

cooler of beer inside the building.
photographs were in plain view.

All items depicted in the

The officers were in the Game

Room for five to eight minutes, and they left without issuing a
citation or arresting or detaining anyone.

Fortson Dep. 63:7-

12.
Plaintiff

alleges

that

Officer

David

and

Captain

Jordan

violated his Fourth Amendment rights by entering the Game Room
and taking photographs without a warrant or probable cause.

He

also names their municipal employer, the City of Elberton, as a
Defendant.
Welsh,

Plaintiff also named officers Scott Marunich, Mark

and Daniel White as Defendants. He makes no specific

factual allegations against White. The only factual allegations
against Marunich and Welsh are that Marunich sent an email to
Officer

Welsh

Plaintiff

alerting

also

him

contends

to
that

the

party

police

at

the

Game

Room.

to

noise

responded

complaints on two other evenings and that a “general police
presence”

was

bad

for

his

business.

Fortson

Dep.

97:4-18;

99:22-100:1.

illicit drug activity, or other misbehavior, to the common disturbance of the
neighborhood or orderly citizens.”
Elberton Code of Ordinances § 28-20,
available
at
http://www.cityofelberton.net/Code%20of%20Ordinances/ordinances/index2.htm.

5

DISCUSSION
I.

Claims Against the Individual Officers
The individual officers argue that they are entitled to

qualified

immunity.

In

resolving

questions

of

qualified

immunity at summary judgment, the Court generally engages in a
two-pronged inquiry.

The first prong asks whether the facts

“taken in the light most favorable to the party asserting the
injury show the officer’s conduct violated a federal right.”
Tolan

v.

(internal

Cotton,

134

quotation

S.

Ct.

marks

1861,

1865

omitted).

The

(2014)

(per

second

curiam)

prong

asks

“whether the right in question was ‘clearly established’ at the
time of the violation.”

Id. at 1866; see also Hope v. Pelzer,

536 U.S. 730, 739 (2002).
“[g]overnmental

actors

are

This second prong recognizes that
shielded

from

liability

for

civil

damages if their actions did not violate clearly established
statutory or constitutional rights of which a reasonable person
would

have

known.”

Tolan,

quotation marks omitted).

134

S.

Ct.

at

1866

(internal

To make that determination, the Court

must determine “‘whether the state of the law at the time of an
incident provided ‘fair warning’ to the defendants ‘that their
alleged [conduct] was unconstitutional.’”
536 U.S. at 741) (alteration in original).

6

Id. (quoting Hope,

This Court may address these two prongs in whatever order
it deems appropriate.
(2009).

Pearson v. Callahan, 555 U.S. 223, 236

Under the circumstances presented here, the Court finds

it appropriate to address the second prong first—whether the law
at

the

time

Defendants

entered

the

Game

Room

provided

fair

warning to Defendants that they would be violating the owner’s
Fourth Amendment Rights by entering the establishment without a
warrant

after

smelling

receiving

marijuana

three

outside

complaints

the

of

premises

loud

and

noise

then

and

taking

photographs of persons and items in plain view.
To establish a Fourth Amendment claim, Plaintiff must show
(1) “that a search and seizure occurred of his person, house,
papers, or effects, and that said search was conducted by an
agent of the government;” and (2) “that the challenged search
and seizure was ‘unreasonable.’”

Ball v. State of Ga., 733 F.2d

1557, 1559-60 (11th Cir. 1984).

Plaintiff has pointed the Court

to

no

case

law

finding

that

conduct

similar

to

challenged here violated the Fourth Amendment.
has

found

Amendment’s
would

not

conduct

none.

Moreover,

general
have

under

prohibition

alerted

the

the

these

unique

Court

circumstances

violate the Fourth Amendment.

that

the

unreasonable

Defendants

that

they

conduct

And the Court

finds

against

the

their

Fourth

searches
specific

confronted

would

Defendants responded to citizens’

complaints about excessive noise emanating from the Game Room.
7

They did not enter Plaintiff’s premises until the loud noise
persisted and they concluded that the establishment may be in
violation of a local ordinance.

On entering the premises, they

noticed evidence in plain view that supported their belief that
the ordinance was being violated.

And they took photographs of

that evidence, which could easily be removed from the premises.
The

Court

under

need

these

Amendment.

not

decide

today

circumstances

whether

actually

Defendants’

violated

conduct

the

Fourth

All the Court needs to decide is whether it would

have been clear to reasonable officers in Defendants’ position
that their conduct in the situation they confronted violated the
Fourth Amendment.
*8

(S.

question

Ct.
in

May

Wood v. Moss, No. 13-115, 2014 WL 2178340 at
27,

favor

of

2014).

The

Court

the

Defendant

easily

answers

officers.

this

Accordingly,

Defendants are entitled to qualified immunity, and their motion
for summary judgment is granted.
II.

Claim Against the City of Elberton
A § 1983 claim against a municipality cannot be based on

principles of respondeat superior.

Monell v. Dep’t of Soc.

Servs. of City of New York, 436 U.S. 658, 691 (1978).

Even if a

municipality’s employee engages in unconstitutional conduct, the
municipality can only be found liable if its policy or practice
was a moving force in the violation.
pointed

to

no

evidence

from

which
8

Id. at 694.
a

Plaintiff has

reasonable

jury

could

conclude that the City of Elberton had a policy or practice that
was a moving force behind the alleged Fourth Amendment violation
asserted

here.

Accordingly,

the

City’s

motion

for

summary

judgment is granted.
CONCLUSION
For the reasons explained in this Order, Defendants’ Motion
for Summary Judgment (ECF No. 26) is granted, and Plaintiff’s
Motion for Summary Judgment (ECF No. 22) is denied.3

Defendants

are entitled to judgment on all of Plaintiff’s claims.

IT IS SO ORDERED, this 4th day of June, 2014.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE

3

Defendants also submitted a Motion to Dismiss (ECF No. 28).
now moot.

9

That Motion is