Fortson v. CITY OF ELBERTON et al
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
CAREY A. FORTSON,
CITY OF ELBERTON, JIMMY JORDAN,
DANIEL WHITE, JOSEPH DAVID,
SCOTT MARUNICH, and MARK WELSH,
CASE NO. 3:13-cv-97 (CDL)
O R D E R
officers, without a search warrant, entered Plaintiff’s business
premises and took
photographs of persons and items in plain
Plaintiff maintains that this conduct violated his Fourth
against the law enforcement officers who entered his business
employer, the City of Elberton.
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
therefore, the Court addresses that claim in this Order.
Court declines to speculate about other possible claims one may
be able to infer from Plaintiff’s allegations.1
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
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).
not apply here, and summary judgment is granted in Defendants’ favor on that
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.
dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.
In the light most favorable to Plaintiff, the facts reveal
Plaintiff owned and operated Carey’s Arcade &
tables, and space to rent for private parties.
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.
entitled them to “all they could drink.”
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
Less than an hour later Officer David received
a second complaint requiring him to return to the Game Room.
his second return, Officer David informed an individual outside
the Game Room that he would shut down the party if he received
Officer David left the Game Room without
taking further action.
Officer David returned to the Game Room in response to that
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.
building without a search warrant.
Defs.’ Mot. for
While Officer David told the
DJ to turn off the music, Captain Jordan took photographs of the
Jordan Dep. 5:8-10, ECF No. 35.
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,
purpose of the photographs was to show “the crowd and alcohol
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-
violated his Fourth Amendment rights by entering the Game Room
and taking photographs without a warrant or probable cause.
also names their municipal employer, the City of Elberton, as a
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
complaints on two other evenings and that a “general police
illicit drug activity, or other misbehavior, to the common disturbance of the
neighborhood or orderly citizens.”
Elberton Code of Ordinances § 28-20,
Claims Against the Individual Officers
The individual officers argue that they are entitled to
immunity at summary judgment, the Court generally engages in a
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.”
“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).
This second prong recognizes that
damages if their actions did not violate clearly established
statutory or constitutional rights of which a reasonable person
quotation marks omitted).
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).
Id. (quoting Hope,
This Court may address these two prongs in whatever order
it deems appropriate.
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
warning to Defendants that they would be violating the owner’s
Fourth Amendment Rights by entering the establishment without a
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
challenged here violated the Fourth Amendment.
violate the Fourth Amendment.
And the Court
Defendants responded to citizens’
complaints about excessive noise emanating from the Game Room.
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.
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
Wood v. Moss, No. 13-115, 2014 WL 2178340 at
Defendants are entitled to qualified immunity, and their motion
for summary judgment is granted.
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.
Id. at 694.
conclude that the City of Elberton had a policy or practice that
was a moving force behind the alleged Fourth Amendment violation
judgment is granted.
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
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
Defendants also submitted a Motion to Dismiss (ECF No. 28).
That Motion is
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