RICHARDSON et al v. QUITMAN COUNTY, GEORGIA
Filing
52
ORDER granting in part and denying in part 26 Motion for Summary Judgment; granting 43 Motion to Amend/Correct; denying 23 Motion for Summary Judgment. Ordered by Judge Clay D. Land on 12/17/2012. (jcs)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
DENISE RICHARDSON
RICHARDSON,
and
CALVIN *
*
Plaintiffs,
*
vs.
CASE NO. 4:11-CV-124 (CDL)
*
QUITMAN
COUNTY,
GEORGIA,
SHERIFF STEVE NEWTON, DEPUTY *
COREY MASON, DEPUTY JAMIE MING,
and TAMMYE ATKINSON,
*
Defendants.
*
O R D E R
Upon receiving a tip from a confidential informant that a
vehicle
being
Richardson”)
(“Mason”),
driven
contained
a
sergeant
by
Plaintiff
illegal
with
Calvin
drugs,
the
Richardson
Defendant
Corey
Georgetown-Quitman
(“Mr.
Mason
County
Sheriff’s Office, stopped Mr. Richardson’s vehicle to conduct an
investigatory
stop.
Plaintiff
Denise
Richardson”) was a passenger in the vehicle.
Richardson
(“Mrs.
During the stop,
Mr. and Mrs. Richardson were subjected to strip searches that
included examination, exposure, and touching of their body parts
and cavities.
The invasive body searches yielded no contraband,
but they have produced this lawsuit.1
1
The label given to the type of search a person is subjected to is of
no legal significance.
It is the nature and specific factual
circumstances of the search that are important. However, for purposes
Claiming that the searches, investigatory stop, and their
ultimate arrests violated their Fourth Amendment right to be
free from unreasonable searches and seizures, Plaintiffs have
sued the persons who participated in the stop, searches, and
arrests
in
their
official
and
individual
capacities,
the
Georgetown-Quitman County Sheriff in his official and individual
capacity,
and
constitutional
Quitman
County.2
violations
They
pursuant
seek
to
damages
42
U.S.C.
(“§ 1983”) and also assert various state law claims.
for
§
the
1983
Defendants
have filed a Joint Motion for Summary Judgment (ECF No. 26) as
to all of Plaintiffs’ claims except for claims against Mason
based on the manner of Mr. Richardson’s strip search and Mr.
Richardson’s false arrest.
as
to
Plaintiffs’
Defendants assert immunity defenses
official
capacity
claims,
and
they
also
contend that Georgetown-Quitman County cannot be liable for the
additional
reason
that
it
had
no
policy
or
custom
that
of a written order, it is sometimes expedient to use a shorthand
reference to the particular search being analyzed.
In this Order,
“strip search” and “body cavity search” refer to a non-consensual
search for contraband on a person’s body that includes the
examination, exposure, and/or physical touching of parts of the body
that are typically covered with clothing in public settings.
2
In 2007, “Quitman County” ceased to exist because it merged with a
municipality to become “the Unified Government of Georgetown-Quitman
County.” Defs.’ Mot. for Summ. J. Ex. B, Wilson Decl., ECF No. 26-2
at 1; id. attach. 1, Charter of the Unified Government of GeorgetownQuitman County §§ 1-101, 8-103, 8-107, ECF No. 26-2 at 2, 4.
Plaintiffs filed a motion to amend their Complaint, seeking to
substitute the Unified Government of Georgetown-Quitman County for
Quitman County.
Plaintiff’s Motion to Amend (ECF No. 43) is hereby
granted.
2
contributed
to
the
alleged
constitutional
violations.
Defendants in their individual capacities assert the defense of
qualified
immunity.
Plaintiffs
filed
a
Motion
for
Summary
Judgment (ECF No. 23) on their Fourth Amendment claims.
As
discussed below, the Court finds that Mason is not entitled to
qualified
immunity
as
to
Mrs.
Richardson’s
Fourth
Amendment
strip search claim against him in his individual capacity, and
Defendants’ motion for summary judgment is denied as to that
claim only.
Defendants’ Joint Motion for Summary Judgment is
otherwise granted.3
denied.
Plaintiff’s Motion for Summary Judgment is
As a result, the claims remaining for trial are Mrs.
Richardson’s Fourth Amendment strip search claim against Mason,
Mr.
Richardson’s
Fourth
Amendment
strip
search
claim
against
Mason, and Mr. Richardson’s Fourth Amendment and state law false
arrest claims against Mason.
3
Defendants did not move for summary judgment as to Mr. Richardson’s
Fourth Amendment claim arising from the manner in which Mason
conducted the strip search of him.
To the extent that Defendants
attempt to distinguish between the constitutionality of the decision
to conduct the strip search of Mr. Richardson and the actual manner in
which the search was conducted, the Court finds that given the close
connection between the two and the totality of the circumstances, both
must be considered in evaluating whether a Fourth Amendment violation
has occurred.
Therefore, to the extent that Defendants seek to
separate this conduct into separate claims and seek summary judgment
as to the decision to search, the Court denies that aspect of their
motion.
As a practical matter, that evidence will have to be
considered in evaluating the manner of the search claim, as to which
no summary judgment motion has been filed.
So, while the Court
recognizes the theoretical and academic distinction, the Court
concludes that the appropriate course is to allow both aspects of the
strip search to be considered in determining whether a Fourth
Amendment violation occurred and whether Mason was on fair notice that
his conduct violated the Fourth Amendment.
3
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
Viewed
purposes
in
of
the
light
deciding
most
favorable
Defendants’
motion
to
for
Plaintiffs
partial
for
summary
judgment, the record reveals the following.
On August 24, 2009, Mason, a sergeant with the GeorgetownQuitman
County
Sheriff’s
Office,
received
a
call
from
a
confidential informant reporting that a person named Calvin had
just obtained cocaine in the “bluff” area of Eufaula, Alabama,
an area known for drug activity, and would be driving in a
cream-colored
Lincoln
Georgetown, Georgia.
with
a
female
over
the
bridge
into
Mason Dep. 35:5-36:25, ECF No. 51-2; D.
4
Richardson
Dep.
106:3-24,
ECF
No.
304
(agreeing
that
as
a
resident living up the street from the “bluff,” she had heard
“there
was
drug
activity
in
that
area”).
Mason
knew
the
informant, having previously recovered drugs and made an arrest
based on information he supplied.
Mason Dep. 35:9-13.
The
informant informed Mason that if the cocaine was not in the car,
it would be in the possession of one of the vehicle’s occupants.
He also mentioned that Calvin was known to conceal cocaine in
his buttocks.
Id. at 52:13-25.
Mason did not inquire further
about the informant’s basis for giving this last detail, id. at
53:1-18,
nor
did
Mason
receive
any
information
about
the
unidentified female passenger and her involvement in the alleged
illegal activity.
I.
The Investigatory Stop
When
Mason
saw
a
vehicle
fitting
the
informant’s
description, id. 40:1-41:2, he informed fellow deputy sheriff
Defendant Jamie Ming (”Ming”) over the radio that he intended to
stop the vehicle.
Ming Dep. 10:24-11:12, ECF No. 51-7.
Mason
explained to Ming that a confidential informant reported that
the vehicle’s occupants had obtained cocaine from the “bluff”
area in Eufaula.
Id. at 12:24-13:5.
Mason alerted the vehicle
to pull over using his blue lights, and the vehicle stopped at
4
Mrs. Richardson’s deposition was submitted as one main document with
two supplements: ECF Nos. 30, 30-1, and 30-2.
For the sake of
simplicity, the Court will refer to the entire deposition using the
main document number.
5
the Liberty Gas Station in Georgetown.
Mason Dep. 41:10-13.
Ming pulled in behind them in his vehicle to assist Mason with
the stop.5
Ming Dep. 12:7-11.
Mason was Ming’s supervisor, and
Ming had been a law enforcement officer for only a short time.
Id. at 92:3-5, 92:21-93:2.
Mason
first
asked
the
driver,
Mr.
Richardson,
for
his
driver’s license, but Mr. Richardson informed Mason that he did
not have a license because it was expired.
51:23-52:5, ECF No. 32.6
a
knife
According
in
to
his
Mr. Richardson voluntarily relinquished
possession
Mr.
C. Richardson Dep.
to
Richardson,
Richardson Dep. 60:22-61:17.
Ming.
Mason
Ming
patted
Dep.
him
18:9-12.
down.
C.
Mason also asked Mr. Richardson to
empty the contents of his pockets, and Mr. Richardson did so.
Mason Dep. 51:11-16; C. Richardson Dep. at 60:25-61:9.
then
conducted a search of
47:17-22.
Plaintiffs’
vehicle.
Mason
Mason Dep.
Mason describes his initial search of the vehicle as
a cursory search.
Mason Dep. 101:6-12.
Plaintiffs contend that
Mason searched the vehicle twice when he first made the stop and
that Ming participated in searching the car.
D.
Richardson
Dep.
139:4-141:4.
5
Also,
Ming Dep. 24:4-13;
Ming
stood
with
Mr.
Plaintiffs deny that Ming’s participation was limited to a backup
role, but they do not point to any evidence to support their
contention that he “acted as a full voluntary participant.”
Pls.’
Statement of Material Facts ¶ 12, ECF No. 42.
6
Mr. Richardson’s deposition was submitted as one main document with
two supplements: ECF Nos. 32, 32-1, and 32-2.
For the sake of
simplicity, the Court will refer to the entire deposition using the
main document number.
6
Richardson
as
Mason
asked
Mrs.
Richardson
questions.
D.
Richardson Dep. 130:3-9.
II.
The Alleged Strip and Cavity Searches
Mason decided to search Plaintiffs for drugs.
He suspected
that they had concealed drugs on their bodies in areas where
they could not be seen from a visual inspection of their outer
clothing.
Mason, who had been a law enforcement officer since
1995, had worked as a narcotics officer in Enterprise, Alabama
before joining the Georgetown-Quitman County Sheriff’s Office.
Mason
Dep.
at
8:23-9:1,
10:6-17,
54:19.
Based
on
his
experience, Mason knew that the buttocks and scrotum areas were
common places for a male to conceal drugs and that the chest and
vaginal areas were common places for a female to conceal drugs.
Id. at 53:10-18.
Therefore, he decided to search these areas
for the drugs.
Because
no
female
deputy
was
available
to
search
Mrs.
Richardson, Mason called Defendant Tammye Atkinson (“Atkinson”),
a female licensed paramedic,
80:14,
85:7-13.
Georgetown-Quitman
Atkinson
County
for assistance.
was
also
Emergency
Id.
at 79:25-
the
director
Medical
Services
of
the
(“EMS”).
Defs.’ Joint Mot. for Summ. J. Ex. A, Atkinson Decl. ¶ 2, ECF
No. 26-1; Atkinson Dep. 8:9-14, ECF No. 51-9.
experience
searching
people’s
pockets
and
Atkinson had
looking
beneath
people’s clothing in the course of providing medical treatment.
7
Atkinson Decl. ¶ 3; Atkinson Dep. 16:1-15.
Mason explained to
Atkinson that he was conducting a drug investigation and needed
her help searching a female who could possibly have drugs on her
person.
Atkinson Dep. 12:6-11, 27:20-23; Mason Dep. 86:10-13,
87:15-88:2.
This
was
the
only
time
Mason
Atkinson to assist in searching a suspect.
had
ever
asked
Mason Dep. 80:15-17,
86:14-18; Atkinson Dep. 13:19-24.
Atkinson
arrived
in
an
EMS
vehicle.
Mason
directed
Atkinson to check whether Mrs. Richardson had drugs underneath
her clothing.
Mason Dep. 88:25-89:10; Atkinson Dep. 16:24-17:1.
According to Mrs. Richardson, Mason referred to Atkinson as “his
officer.”
D. Richardson Dep. 161:8-11.
Atkinson told Mason
there was a restroom inside the convenience store, so Mason and
Atkinson walked Mrs. Richardson to the restroom.
14,
162:5-7.
flushed
down
Richardson
Mason
the
went
told
toilet.
into
the
walked in and shut the door.
Atkinson
to
Atkinson
restroom
Id. at 161:12-
make
sure
Dep.
19:16-17.
first,
and
then
Id. at 20:1-4, 14-16.
was in the small, fully-enclosed, single restroom.
nothing
was
Mrs.
Atkinson
No one else
According to
Mrs. Richardson, Atkinson wore medical gloves and searched her
vagina and rectum for drugs by probing them with a single finger
for
two
seconds
or
less.7
D.
7
Richardson
Dep.
185:20-186:5,
Atkinson adamantly denies conducting a strip and cavity search.
According to Atkinson, Mrs. Richardson took off her pants without
8
186:17-187:21.
Mrs. Richardson also claims that Atkinson felt
for drugs under her shirt beneath her breasts for about ten to
fifteen seconds without removing her bra.8
184:1-21.
D. Richardson Dep.
Including about a minute to arrange clothing, Mrs.
Richardson and Atkinson were in the restroom for about
minutes total.
Atkinson
Dep.
five
Mrs. Richardson was crying during this time.
23:23-24:4.
Mrs.
Richardson
Atkinson came across as kind and caring.
acknowledges
that
D. Richardson Dep.
189:5-11.
According to Mr. Richardson, Mason conducted a strip and
cavity
search
of
Mr.
Richardson
by
the
EMS
vehicle.9
Richardson Dep. 56:3-4, 56:24-57:9, 103:3-104:10.
C.
During this
time, Atkinson was standing on the other side of the vehicle.
Atkinson
Dep.
31:1-5;
see
also
D.
Richardson
Dep.
211:4-19
(indicating Atkinson’s position as “A”); id. Ex. 11, Sketch of
Truck, ECF No. 30-3 at 16 (same).
Ming testified he stood by
Mason and Mr. Richardson and angled his body so that he could
act as a shield “to help for privacy.”
Ming Dep. 43:23-17.
being asked to do so, and Atkinson told Ms. Richardson that she was
not going to search her and to pull her pants up.
Atkinson Dep.
20:17-22:9.
For purposes of Defendants’ summary judgment motion,
however, the Court must view the evidence in the light most favorable
to Plaintiffs.
8
Atkinson also denies touching Mrs. Richardson’s breasts.
Atkinson
Dep. 23:6-8.
9
Mason strongly disputes conducting a cavity search of Mr. Richardson.
Mason Dep. 78:23-79:5.
Defendants concede that there is a genuine
fact dispute regarding whether Mason conducted a cavity search and
whether it was conducted in an abusive manner.
Therefore, the Court
includes factual background only to the extent necessary.
9
Because Mrs. Richardson “was hollering” as she approached Mason
during his search of Mr. Richardson, Ming had to repeatedly
order Mrs. Richardson to step back behind Ming’s vehicle.
Dep.
79:18-24;
Richardson
did
threatened
to
vehicle.
D.
not
Richardson
follow
handcuff
D.
Dep.
Ming’s
her
did
Richardson
Dep.
204:18-205:18.
orders,
she
Mason
step
206:1-14,
and
only
back
Mrs.
after
he
toward
Ming’s
212:11-22.
Mr.
Richardson testified that Ming had to stand with Mrs. Richardson
during Mason’s search, but that Ming participated by watching it
happen and not stopping it.
C. Richardson Dep. 43:10-12, 96:10-
16, 104:16-22, 106:14-19.
No drugs were found on Mr. or Mrs. Richardson’s bodies or
in their clothing.
III. The Dog Alert and Discovery of Cocaine
After the personal searches yielded no contraband, Mason
drove to his nearby house to retrieve his K-9 drug dog trained
to
alert
to
the
odor
of
narcotics.
Mason
Dep.
102:18-24.
Within a few minutes, Mason returned to the scene and walked the
dog around and through Plaintiffs’ vehicle.
Id. at 105:5-11.
The dog alerted to the smell of narcotics by sitting by the
passenger
side.
Id.
at
103:24-104:14.
According
to
Mrs.
Richardson, she observed Mason enter that side of the car with
his right hand balled up as if to place something and said
“woof” to make the dog bark.
D. Richardson Dep. 230:15-231:17,
10
233:1-24, 235:21-25.
Mason told Ming the dog had alerted and
directed Ming to search
66:4-16.
Ming
the vehicle.
thoroughly
searched
Ming Dep. 62:13-63:3,
the
front
passenger
side
using a flashlight, and he found a small baggie containing what
he
recognized
as
two
crack
rocks,
which
had
been
shoved
underneath the passenger side seat in the metal track near the
center console.
Id. at 64:3-16, 65:11-23.
Mason arrested both
Plaintiffs, and Ming transported them to the Sheriff’s Office in
his vehicle.
Ming Dep. 87:9-11, 90:14-17.
Ming turned the
evidence over to Mason, the evidence custodian, at the Sheriff’s
Office that night.
Ming Dep. 69:5-9, 70:8-16, 74:11-20.
The
state crime lab later confirmed that the baggie contained crack
cocaine.10
Newton Dep. 50:6-13, ECF No. 51-1.
When Plaintiffs arrived at the Sheriff’s Office, Defendant
Sheriff
Steve
Newton
(“Newton”)
heard
Plaintiffs
that Mason had performed “a strip search.”
23, 12:3-13:16.
complaining
Newton Dep. 10:15-
Newton, who was not personally involved in the
searches at issue in this action, apologized to Mr. Richardson
and told him he “would do a thorough investigation.”
15:10-12.
Newton
then
interviewed
both
Plaintiffs
Id. at
and
written statements from them shortly after the incident.
13:22-14:8,
10
18:14-23.
Newton
Plaintiffs appear to dispute
evidence to contradict it.
also
this
11
reviewed
statement, but
the
took
Id. at
officers’
they cited
no
reports and written statements from other known witnesses.
at
19:2-21:8.
As
a
result
of
the
investigation,
Id.
Newton
concluded “that no violation of departmental policy or law had
occurred.”
IV.
Id. at 23:12-14.
Deputy Training and Official Policies
Mason and Ming received peace officer certification after
they
completed
training
through
the
Georgia
Standards and Training Council (P.O.S.T.).
Ming Dep. 92:6-7.
Peace
Officer
Mason Dep. 16:13-24;
The P.O.S.T. certification course includes
search and seizure procedure and ongoing training.
17:21-18:2, 33:12-15; Ming Dep. 92:8-13.
Mason Dep.
The Sheriff’s Office
did not have a published policy or procedure relating to strip
searches at the time of the events giving rise to this action.
Newton Dep. 45:11-17, 47:13-25; Mason Dep. 58:19-25; see also
Newton Dep. 37:7-10 (“I do not prohibit deputies from doing what
they need to do, within the state law, to investigate narcotics
or any other case.
Newton
expected
stated
to
that
abide
No, there is not a specific policy.”).
his
by
policy
the
was
that
standards
accordance with their police training.
of
his
deputies
relevant
law,
were
in
Id. at 28:9-13, 34:18-
35:14, 36:8-15.
Prior to the incident, Newton was not familiar with any
complaints that an officer was not following the law, or that a
citizen’s constitutional rights were being violated as a result.
12
Id.
at 53:5-8
(“Previous
to this event, the only complaints
about my department, that I’m familiar with, were a few that
were about [Mason]’s rudeness or cursing.”).
Mason stated he
did not think that he performed similar strip searches while
working
for
the
Georgetown-Quitman
Mason Dep. 58:11-18.
Quitman
County
had
Sheriff’s
Office.
Also prior to the incident, Georgetownno
express
policy
assisting in criminal investigations.
V.
County
against
EMS
employees
Atkinson Dep. 37:14-17.
Plaintiffs’ Claims
Plaintiffs maintain that Defendants lacked probable cause
for
their
rights
to
actions
be
and
free
from
violated
Plaintiffs’
unreasonable
Fourth
searches
and
Amendment
seizures.
Plaintiffs assert claims arising from the stop of Plaintiffs in
their vehicle, the pat down, pocket search, and strip and cavity
search of Mr. Richardson, the strip and cavity search of Mrs.
Richardson, the search of Plaintiffs’ vehicle with and without
the assistance of a trained dog, and their arrest.
33-42, ECF No. 1.
Compl. ¶¶
Plaintiffs assert federal claims pursuant to
§ 1983 and § 1988 against Georgetown-Quitman County11 and Mason,
Ming,
Atkinson,
capacities.
and
Newton
in
their
official
and
individual
Plaintiffs also seek punitive damages from each
Defendant and assert separate state law claims for false arrest
and failure to train/negligent retention.
11
See supra note 2.
13
DISCUSSION
I.
Defendants’ Motion for Partial Summary Judgment
A.
Claims Against Defendants in their Official Capacities
and Against Georgetown-Quitman County
1.
§ 1983 Claims
Plaintiffs
assert
§
1983
claims
against
the
individual
Defendants in their official capacities and against GeorgetownQuitman County.
Plaintiffs allege that Defendants, acting under
color of law, violated their constitutional rights to be free
from
unreasonable
Amendment.
cause
to
searches
Plaintiffs
stop
and
claim
Plaintiffs,
seizures
that
to
Defendants
search
Plaintiffs, and to arrest Plaintiffs.
that
the
strip
and
cavity
under
their
the
lacked
car,
Fourth
probable
to
search
Plaintiffs also
searches
of
claim
Plaintiffs
were
unreasonable.
A § 1983 claim against an officer in his official capacity
is
“functionally
equivalent”
to
entity that employed the officer.
a
direct
claim
against
the
See Busby v. City of Orlando,
931 F.2d 764, 776 (11th Cir. 1991) (per curiam) (citing Kentucky
v. Graham, 473 U.S. 159, 166 (1985)).
construes
official
capacity
claims
Therefore, the Court
against
Mason,
Ming,
and
Newton as claims against the Georgetown-Quitman County Sheriff.
The
Court
also
construes
official
capacity
claims
Atkinson as claims against Georgetown-Quitman County.
against
For the
reasons set forth below, the Court grants Defendants’ motion for
14
summary judgment as to all § 1983 claims against the GeorgetownQuitman County Sheriff and Georgetown-Quitman County.
a.
Eleventh
THE GEORGETOWN-QUITMAN COUNTY SHERIFF
Amendment
immunity
bars
suits
against a state or “an arm of the State.”
F.3d
1304,
1308-09
(11th
quotation marks omitted).
Cir.
2003)
in
federal
court
Manders v. Lee, 338
(en
banc)
(internal
A Georgia sheriff is considered an
“arm of the State” when performing law enforcement functions,
such
as
detaining
and
arresting
suspects.
Id.
at
1310-11;
accord Burgest v. Colquitt Cnty., 177 F. App’x 852, 855 (11th
Cir. 2005) (per curiam) (affirming summary judgment in favor of
the sheriff and his employees sued in their official capacities
on claims related to the plaintiffs’ detention and arrest based
on Eleventh Amendment immunity).
immunity
bars
Plaintiffs’
Therefore, Eleventh Amendment
official
capacity
claims
against
Mason, Ming, and Newton.12
b.
GEORGETOWN-QUITMAN COUNTY
Defendants argue that Plaintiffs’ Complaint named “Quitman
County” as a Defendant and that those claims must be dismissed
because “Quitman County” is not a legal entity capable of being
12
Defendants also contend that the official capacity claims against
Mason, Ming, and Newton fail because the Sheriff, an arm of the State,
is not a “person” subject to suit under § 1983 and because Plaintiffs
have not pointed to evidence that the Sheriff had a policy or custom
that caused the alleged constitutional violations. The Court need not
reach these arguments because the official capacity claims against
Mason, Ming, and Newton are barred by Eleventh Amendment immunity.
15
sued.
This misnomer has been corrected, however, by the Court’s
granting
of
Plaintiffs’
Government of
motion
to
substitute
Georgetown-Quitman County
for
the
Unified
“Quitman County.”
Therefore, the Court must determine whether Plaintiffs’ claims
against Georgetown-Quitman County can be maintained.
Under Georgia law, “a county has no authority and control
over the sheriff’s law enforcement function” regarding certain
conduct and policies and cannot incur liability under § 1983
based on the performance of those functions.
Grech v. Clayton
Cnty., Ga., 335 F.3d 1326, 1347 (11th Cir. 2003) (en banc).
Based
on
this
principle,
Defendants
argue
that
Georgetown-
Quitman County cannot be liable for the acts and policies of the
Sheriff and his deputies at issue in this action.
Plaintiffs
failed
finds
to
respond
to
this
argument.
The
Court
the
unopposed argument of Georgetown-Quitman County persuasive and
therefore
concludes
that
Georgetown-Quitman
County
cannot
be
held liable for the alleged acts and omissions of Mason, Ming,
and Newton.
That
leaves
the
claim
based on Atkinson’s conduct.
against
Georgetown-Quitman
County
It is well established that a
local government cannot be held liable under § 1983 for the
official acts of its employees under
a theory of respondeat
superior; rather, liability must be based on an official policy
or custom.
Monell v. Dep’t of Social Servs., 436 U.S. 658, 694
16
(1978).
his
For Monell liability, a plaintiff must show “(1) that
constitutional
rights
were
violated;
(2)
that
the
municipality had a custom or policy that constituted deliberate
indifference
to
that
constitutional
right;
policy or custom caused the violation.”
F.3d
1283,
1289
(11th
Cir.
2004).
and
(3)
that
the
McDowell v. Brown, 392
Plaintiffs
point
to
no
evidence of an official policy that caused Atkinson to act as
alleged
by
Atkinson’s
Plaintiffs.
single
Instead,
decision
to
Plaintiffs
assist
in
the
argue
alleged
that
search
establishes an informal policy by a final policymaker, which was
also
ratified
by
Georgetown-Quitman
County
because
she
still
holds the position of EMS Director.
The Supreme Court has held that “municipal liability may be
imposed for a single decision by municipal policymakers under
appropriate circumstances.”
U.S. 469, 480 (1986).
Pembaur v. City of Cincinnati, 475
Such “appropriate circumstances” exist
when the acts were officially “sanctioned or ordered” by the
municipality
through
some
policymaking authority.”
U.S.
112,
123
(1988).
body
or
official
with
“final
City of St. Louis v. Praprotnik, 485
Whether
an
official
has
“final
policymaking authority” in a particular area is a question of
state law.
McMillan v. Monroe Cnty., Ala., 520 U.S. 781, 785-86
(1997).
17
Here, Plaintiffs presented no evidence that Atkinson has
“final
policymaking
authority”
for
Georgetown-Quitman
County
with regard to her decision to assist the sheriff’s deputies
during the incident at issue.
Atkinson
had
“final
In support of their argument that
policymaking
authority,”
Plaintiffs
rely
solely on Atkinson’s deposition testimony that she received an
official, rather than personal, call from Mason and that she
responded
in
her
County
uniform
and
vehicle
while
on
duty.
These facts may show Atkinson was acting on Georgetown-Quitman
County’s behalf, but they simply do not establish that she had
final policymaking authority for Georgetown-Quitman County under
state
law.
See
Praprotnik,
485
U.S.
at
139
(Brennan,
J.,
concurring in judgment) (emphasizing that in Pembaur the Supreme
Court already
merely
“made clear that a municipality is not liable
because
the
official
who
[allegedly]
inflicted
constitutional injury had the final authority to
behalf”).
vests
on its
Moreover, Defendants have demonstrated that state law
final
policymaking
County Commission.
1-3-3(7).
act
the
authority
in
the
Georgetown-Quitman
Ga. Const. Art. IX, § II, ¶ I(a); O.C.G.A. §
Regarding emergency medical services in particular,
Defendants have shown that the Georgetown-Quitman County manager
had
final
Atkinson.
policymaking
authority
over
the
EMS
agency,
not
See Atkinson Dep. 35:6-37:25 (discussing directives
and communications from the county manager).
18
Plaintiffs also failed to point to any evidence of official
sanctioning or ordering of Atkinson’s acts.
Plaintiffs argue
that because Atkinson is still the EMS Director, GeorgetownQuitman
County
ratified
her
conduct,
legally and factually insufficient.
130
(explaining
that
“the
mere
but
this
argument
is
See Praprotnik, 485 U.S. at
failure
to
investigate”
an
employee’s decision does not amount to delegating policymaking
authority and noting that “[i]t would be a different matter” if
a
particular
policymaker).
decision
was
expressly
approved
by
the
The mere fact that Atkinson is still employed in
her position does not give rise to an inference of approval of
her
conduct
in
this
specific,
isolated
incident.
In
sum,
Plaintiffs have produced no evidence from which a reasonable
factfinder
could
government
policy
violation.
conclude
or
that
Atkinson
practice
that
acted
caused
a
pursuant
to
a
constitutional
Therefore, Georgetown-Quitman County is entitled to
summary judgment on Plaintiffs’ § 1983 claims.
2.
In
claims
State Law Claims
addition
under
to
Georgia
their
§
law
for
train/negligent retention.
1983
claims,
false
arrest
Plaintiffs
and
assert
failure
to
Although it is not clear against
which Defendants Plaintiffs assert these claims, it is clear
that any state law claims against the Georgetown-Quitman County
Sheriff and Georgetown-Quitman County are barred by sovereign
19
immunity.13
to
“the
The Georgia Constitution extends sovereign immunity
state
and
all
of
its
including sheriffs and counties.
departments
and
agencies,”
Ga. Const. art. I, § II, ¶
IX(e); Gilbert v. Richardson, 264 Ga. 744, 747, 452 S.E.2d 476,
479
(1994).
Furthermore, a
defendant “sued in his official
capacity . . . is entitled to the benefit of [the] County’s
sovereign immunity defense,” but only to the extent the County
has not waived it.
Gilbert, 264 Ga. at 754, 452 S.E.2d at 484;
accord Seay v. Cleveland, 270 Ga. 64, 65, 508 S.E.2d 159, 160
(1998) (discussing the Gilbert rule in the context of an action
against
a
sheriff
sovereign immunity
alleged
by
in
his
bars
Plaintiffs
state law
unless
immunity has been waived.
official
capacity).
Therefore,
tort claims such as those
Plaintiffs
prove
that
sovereign
Bd. of Regents of Univ. Sys. of Ga.
v. Daniels, 264 Ga. 328, 328, 446 S.E.2d 735, 736 (1994); accord
Scott v. City of Valdosta, 280 Ga. App. 481, 484-85, 634 S.E.2d
472, 476 (2006) (holding that sovereign immunity barred a false
arrest claim against a county based on an officer’s conduct);
Seay, 270 Ga. at 65, 508 S.E.2d at 161 (finding that a negligent
supervision claim against the sheriff was barred by sovereign
immunity).
Plaintiffs presented no argument or evidence that
either
Sheriff
the
or
Georgetown-Quitman
13
County
has
waived
Again, the Court construes official capacity claims against Mason,
Ming, and Newton as claims against the Georgetown-Quitman County
Sheriff and construes official capacity claims against Atkinson as
claims against Georgetown-Quitman County.
20
sovereign
immunity
as
to
Plaintiffs’
claims;
therefore,
the
Court grants Defendants’ motion for summary judgment as to all
state
law
claims
against
Georgetown-Quitman
County,
the
Georgetown-Quitman County Sheriff, and other Defendants in their
official capacities.
B.
Claims
Against
Capacities
1.
Defendants
in
their
Individual
§ 1983 Claims
Plaintiffs also bring individual capacity claims alleging
that Defendants, acting under color of law, violated Plaintiffs’
constitutional rights to be free from unreasonable searches and
seizures
under
the
Fourth
Amendment.
Plaintiffs
claim
that
Defendants lacked probable cause to stop Plaintiffs, to search
their car with and without a trained dog, to search Plaintiffs,
and to arrest Plaintiffs.
Plaintiffs also
contend that
strip and cavity searches of Plaintiffs were unreasonable.
the
The
individual Defendants assert qualified immunity as defenses to
these claims.
Qualified
immunity
protects
officers
acting
within
the
scope of their discretionary authority from liability as long as
they did not violate “clearly established” law.
Rehberg v.
Paulk, 611 F.3d 828, 838 (11th Cir. 2010), aff’d, 132 S. Ct.
1497 (2012).
Once Defendants establish that they were acting
within their discretionary authority, Plaintiffs bear the burden
21
of
showing
violation
that
and
(1)
(2)
the
the
officers
right
committed
allegedly
1352,
analysis
1357-58
may
be
(11th
done
Cir.
in
appropriate for the case.”
was
clearly
Cottone v. Jenne, 326
2003).
whatever
constitutional
violated
established at the time of the incident.
F.3d
a
“[T]his
order
two-pronged
is
deemed
most
Grider v. City of Auburn, Ala., 618
F.3d 1240, 1254 (11th Cir. 2010) (citing Pearson v. Callahan,
555 U.S. 223, 241 (2009)).
In determining whether a constitutional right is “clearly
established,” the Court looks to whether a reasonable officer
would have fair and clear notice “that his conduct was unlawful
in the situation he confronted.” Vinyard v. Wilson, 311 F.3d
1340, 1350 (11th Cir. 2002) (internal quotation marks omitted).
This standard can be met in a number of ways.
First, the
conduct may be “so egregious” as to violate the Constitution on
its face absent clarifying case law, id. at 1350-51, but this is
considered a narrow exception, Thomas ex rel. Thomas v. Roberts,
323 F.3d 950, 955 (11th Cir. 2003).
Second, a broad principle
in case law may apply to a specific set of facts “with obvious
clarity
to
the
point
that
every
objectively
reasonable
government official facing the circumstances would know that the
official’s
official
conduct”
acted.
violated
Vinyard,
federal
311
F.3d
law
at
at
1351.
the
time
Because
the
most
precedents are tied to particularized facts, such decisions are
22
rare.
1287
Corey Airport Servs., Inc. v. Decosta, 587 F.3d 1280,
(11th
Cir.
precedents
can
2009)
clearly
(per
curiam).
establish
a
Third,
right
when
fact-specific
the
specific
conduct currently at issue is “not fairly distinguishable” from
that already held to violate a federal right.
Vinyard, 311 F.3d
at 1352.
a.
Mason
argues
liability for all
DEPUTY MASON
that
qualified
immunity
federal claims against
protects
him
him
except
from
for Mr.
Richardson’s claims arising from the arrest and the strip search
of Mr. Richardson.
See supra note 3.
Those claims for which he
seeks qualified immunity include Mason’s role in conducting the
investigatory stop of Plaintiffs, the pat down and pocket search
of Mr. Richardson, the initial search of Plaintiffs’ vehicle,
the strip and cavity search of Mrs. Richardson, the search of
Plaintiffs’ vehicle with the trained K-9 dog, and the subsequent
search underneath the passenger seat.
It is undisputed that
this conduct falls within the scope of Mason’s job functions and
thus his discretionary authority.
the
burden
of
immunity.
1267
interpret
Mason
is
not
entitled
to
qualified
Holloman ex rel. Holloman v. Harland, 370 F.3d 1252,
(11th
Plaintiffs
showing
Therefore, Plaintiffs bear
Cir.
“must
the
2004).
At
demonstrate
evidence
in
the
that
the
23
summary
a
record
judgment
reasonable
as
jury
showing
stage,
could
that
the
defendant
violated
a
constitutional
right
that
established at the time of the acts in question.”
i.
The
Fourth
was
clearly
Id.
The Investigatory Stop
Amendment
requires
an
officer
to
have
a
reasonable, articulable suspicion of criminal activity in order
to conduct an investigatory stop.
Terry v. Ohio, 392 U.S. 1, 30
(1968); see also Illinois v. Wardlow, 528 U.S. 119, 123 (2000)
(describing
this
standard
as
objective justification”).
“at
least
a
minimal
level
of
“When an officer asserts qualified
immunity, the issue is not whether reasonable suspicion existed
in
fact,
but
whether
the
officer
had
‘arguable’
suspicion to support an investigatory stop.”
reasonable
Jackson v. Sauls,
206 F.3d 1156, 1166 (11th Cir. 2000).
Plaintiffs concede that “the parameters set by the Terry
case may have allowed the investigatory
case.”
38.
stop in the present
Pls.’ Resp. to Def. Mason’s Mot. for Summ. J. 6, ECF No.
The
identified
leading
to
information
Court
agrees.
informant
a
drug
was
Mason
who
arrest
received
had
reliably
in
corroborated
the
by
information
provided
past.
the
fact
The
from
an
information
informant’s
Mason
observed
Plaintiffs travelling in their car as described in detail by the
informant.
Mason Dep. 35:5-36:25 (describing a “Calvin” who
just obtained cocaine and was driving from the “bluff” area of
Eufala to Georgetown with a female in a cream-colored Lincoln).
24
Plaintiffs do point to the fact that Mason did not question the
informant
for
more
information
regarding
the
basis
knowledge of where Mr. Richardson might carry drugs.
of
his
Id. at
53:1-18 (explaining that Mason did not question the information
because it appeared consistent with his knowledge and experience
in law enforcement).
This fact, however, is insufficient to
dispute that Mason had arguable reasonable suspicion to justify
the investigatory stop.
A tip’s veracity, reliability, and bases of knowledge are
evaluated
under
a
“totality
of
the
circumstances”
approach.
Illinois v. Gates, 462 U.S. 213, 230-33 (1983); United States v.
Gonzalez,
969
F.2d
999,
1002-03
(11th
Cir.
1992).
Factors
considered include (1) whether the tip places the informant at
risk
for
negative
repercussions
if
untrue
because
it
was
provided directly rather than anonymously, Breeding ex rel. C.B.
v. Driscoll, 82 F.3d 383, 388 (11th Cir. 1996), or because “the
officer can track down the tipster again,”
United States v.
Heard, 367 F.3d 1275, 1279 (11th Cir. 2004); (2) whether the tip
provides specific information typically known only by someone
with personal knowledge, United States v. Kent, 691 F.2d 1376,
1381 (11th Cir. 1982); (3) whether the information is capable of
objective
verification,
id.;
(4)
whether
the
tip
provides
details about “future actions of third parties ordinarily not
easily predicted” that later occur,
25
Gates, 462 U.S. at 245; (5)
whether
the
informant
had
personal
knowledge,
Craig
v.
Singletary, 127 F.3d 1030, 1047 (11th Cir. 1997) (en banc); (6)
whether there is a past history between the informant and the
police
department
whether
the
that
information
investigation, id.
case
was
reliability,
id.;
corroborated
by
and
(7)
subsequent
Because the identified informant in this
had reliably provided drug information in the past
because
almost
that
supports
some
details
immediately
the
by
predicting
Mason’s
information
was
future
travel
investigation,
sufficiently
were
the
verified
Court
reliable
and
finds
under
the
totality of the circumstances even if Mason did not ask if the
informant
based
hearsay.
See, e.g., Alabama v. White, 496 U.S. 325, 331 (1990)
(noting
that
an
certain
information
anonymous
tip
on
personal
predicting
future
knowledge
activity
or
is
sufficiently reliable because when “an informant is shown to be
right about some things, he is probably right about other facts
that he has alleged, including the claim that the object of the
tip is engaged in criminal activity”); United States v. Woods,
385 F. App’x 914, 918 (11th Cir. 2010) (per curiam) (finding
that a traffic stop was justified based on an anonymous tip
accurately predicting that a subject with narcotics would be
driving a certain vehicle in a certain area at a certain time);
United States v. Baptiste, 388 F. App’x 876, 880 (11th Cir.
2010)
(per
curiam)
(finding
a
26
tip
about
drug
delivery
sufficiently
reliable
even
color than predicted).
suspicion
to
justify
though
the
truck
was
a
different
Therefore, Mason had arguable reasonable
the
investigatory
stop,
and
Plaintiffs
pointed to no authority that a reasonable officer in Mason’s
position would have believed that the stop was unlawful under
the
circumstances.
Accordingly,
Plaintiffs
have
failed
to
establish that Mason violated clearly established law, and Mason
is entitled to qualified immunity for conducting the stop.14
ii.
The
police
may
The Vehicle Searches
search
a
vehicle
for
contraband
without
violating the Fourth Amendment if the vehicle “is readily mobile
and probable cause exists to believe it contains contraband.”
Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) (per curiam).
Probable
cause
independent
can
arise
corroboration
by
from
the
an
informant’s
police.
United
Talley, 108 F.3d 277, 281-82 (11th Cir. 1997)
tip
plus
States
v.
(per curiam).
Here, a confidential informant who Mason found reliable in the
past had told Mason about a suspect who just obtained cocaine
and would have the drugs concealed in his car or on his person.
14
To the extent Plaintiffs attempt argue the stop violated Plaintiffs’
Fourth Amendment rights based on its duration, this claim was not
raised in the Complaint and cannot be raised for the first time in
response to summary judgment.
Gilmour v. Gates, McDonald & Co., 382
F.3d 1312, 1315 (11th Cir. 2004) (per curiam).
Further, Plaintiffs
made no arguments in response to Defendants’ motion for summary
judgment on the potential claim that the stop was unreasonably long,
so the Court treats the claim as abandoned. Resolution Trust Corp. v.
Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (en banc).
27
Mason corroborated this information by identifying Plaintiffs,
who fit the informant’s description, travelling over the bridge
between the areas specifically mentioned by the informant in a
vehicle also matching the informant’s description.
finds
that
Mason
had
arguable
probable
cause
to
The Court
search
the
vehicle for drugs based on these facts regardless of the drug
dog alert.15
Plaintiffs claim that the vehicle search with the trained K-9
dog violated the Fourth Amendment because it was not supported
by probable cause.
The parties cite no authority on the issue,
but the Supreme Court has held that “the use of a well-trained
narcotics-detection dog . . . during a lawful traffic stop,
generally
does
not
implicate
legitimate
privacy
interests.”
Illinois v. Caballes, 543 U.S. 405, 409-10 (2005) (“A dog sniff
conducted during a concededly lawful traffic stop that reveals
no information other than the location of a substance that no
individual has any right to possess does not violate the Fourth
Amendment.”).
In Caballes, the dog sniffed the exterior of the
vehicle during a lawful stop for a traffic violation unrelated
to drugs.
Id. at 406 (noting the initial traffic stop for
speeding).
suspicion
Here,
to
there
support
the
was
already
drug-related
15
arguable
investigatory
reasonable
stop
and
Factual disputes as to Mason’s actions involving the dog alert and
subsequent
discovery
of
cocaine
are
not
relevant
to
the
constitutionality of the vehicle searches themselves.
28
arguable probable cause to search the vehicle for contraband.
Therefore, Mason was justified in using the K-9 dog to sniff the
exterior and interior of the vehicle.
noted
that
a
traffic
stop
“can
While the Supreme Court
become
unlawful
if
it
is
prolonged beyond the time reasonably required to complete that
mission,” the stop here was justified by arguable reasonable
suspicion of drug activity, not a traffic violation.
407.
Id. at
To the extent Plaintiffs attempt to argue the search was
unreasonable based on having to wait for Mason to bring the dog
from his nearby home, this claim was not raised in the Complaint
and cannot be raised for the first time in response to summary
judgment.
no
Gilmour, 382 F.3d at 1315.
arguments
in
response
to
Further, Plaintiffs made
Defendants’
motion
for
summary
judgment on the potential claim that the stop was unreasonably
long, so the Court treats the claim as abandoned.
Trust Corp., 43 F.3d at 599.
Resolution
Therefore, Mason is entitled to
qualified immunity for conducting the searches of the vehicle.
iii.
The Pat Down and Pocket Search of Mr.
Richardson
An officer is justified in conducting a limited search for
weapons once he has reasonably concluded that a person who was
lawfully stopped might be armed and presently dangerous.
See
Terry, 392 U.S. at 21-22 (applying the standard of whether “the
facts available to the officer at the moment of the seizure or
29
the search ‘warrant a man of reasonable caution in the belief’
that
marks
the
action
taken
omitted).
Plaintiffs’
was
Here,
involvement
appropriate”)
Mason
with
had
drug
(internal
specific
quotation
information
activity.
Because
of
drug
activity is known to be linked to weapons and violence, Mason
had sufficient reason to believe Mr. Richardson might be armed
and dangerous.
(11th
Cir.
See United States v. Hromada, 49 F.3d 685, 689
1991)
(“Guns
and
illegal drug operations.”).
violence
go
hand-in-hand
with
Moreover, prior to the pat down,
Mr. Richardson voluntarily turned over a knife to Ming.
The
Court finds that Mason was justified in conducting the pat down
and pocket search.
See United States v. Cruz, 909 F.2d 422, 424
(11th Cir. 1989) (per curiam) (finding a pat down search for
weapons reasonable based on suspicion of narcotics trafficking).
But see United States v. Willis, 759 F.2d 1486, 1497 (11th Cir.
1985) (applying the standard of probable cause when the police
ask suspects to empty the contents of their pockets because this
so intrudes “as to effect an arrest”).
F.3d
at
281-82
confidential
(concluding
informant
that
“when
See also Talley, 108
information
combined
provided
with
by
a
independent
corroboration by the police” can rise to the level of probable
cause under the totality of the circumstances); United States v.
Goddard,
312
F.3d
1360,
1363-64
(11th
Cir.
2002)
(finding
probable cause for a pre-arrest search of a suspect’s pocket for
30
drugs
based
on
information
from
a
reliable
informant
and
independent corroboration).
In addition, even if the pat down and pocket search were
determined to be unconstitutional, Mason is still entitled to
qualified
immunity
because
Plaintiffs
failed
to
show
that
a
reasonable officer would have been on fair notice that such a
search would violate the Fourth Amendment under the standards
clearly established in Terry and Adams v. Williams, 407 U.S.
143, 146 (1972), and their progeny.
arguable
probable
cause
to
conduct
At a minimum, Mason had
the
pat
down
and
pocket
search, and therefore, he is entitled to qualified immunity.
Wood v. Kessler, 323 F.3d 872, 878 (11th Cir. 2003) (internal
quotation marks omitted) (explaining the standard of “arguable
probable cause” such that “[e]ven if law enforcement officials
who reasonably but mistakenly conclude that probable cause is
present
are
entitled
to
immunity”)
(internal
quotation
marks
omitted).
iv.
Defendants did
The Strip and Cavity Searches
not move
for summary judgment as to Mr.
Richardson’s Fourth Amendment claim arising from the manner in
which the strip search was conducted, and the Court previously
concluded that the decision to conduct his strip search and the
manner of the search cannot be reasonably separated.
31
See supra
note 3.
Therefore, the Court’s analysis is restricted to Mrs.
Richardson’s Fourth Amendment strip search claim.
Mrs. Richardson claims that the strip and cavity search was
unreasonable under the totality of the circumstances because (1)
Mason lacked probable cause to conduct such an intrusive search,
(2) a thorough search of the car was not performed first before
resorting to the strip and cavity search, (3) a pat down of Mrs.
Richardson
was
paramedic,
who
not
was
performed
not
a
first
sworn
law
before
Mason
enforcement
called
officer,
a
to
perform her strip and cavity search, and (4) the manner of the
search was unreasonable and abusive.
The Court starts its analysis with a determination of the
clearly
established
law
regarding
the
constitutionality
of
searches that involve the removal of clothing, the exposure of
sensitive body parts, the examination of body cavities, and the
touching of body parts that are typically covered with clothing.
The Court has located no binding precedent directly on point
that sets forth the parameters of such searches of persons who
are stopped because of probable cause that the vehicle in which
they are riding may contain contraband and who are searched
prior to being arrested.
The Eleventh Circuit, however, has
clearly stated the constitutional parameters for such searches
of persons who have been arrested.
reasonable
law
enforcement
officer
32
The Court finds that any
would
understand
that
the
constitutional requirements for such searches of a person who
has been arrested would apply at a minimum to a person who has
not
yet
been
arrested.
Therefore,
the
Court
must
examine
whether the facts, construed in favor of Plaintiffs, violate the
clearly established minimum standard for such searches.
The Eleventh Circuit, in an en banc decision, stated that
for a post-arrest strip/body cavity search, the law enforcement
officer must have “at least a reasonable suspicion” that the
person
to
be
searched
possesses
contraband
and
that
the
contraband is reasonably suspected to be located in the area to
be searched.
Cir.
2005)
Evans v. Stephens, 407 F.3d 1272, 1279-80 (11th
(en
banc).
After
this
decision
by
the
Eleventh
Circuit, a reasonable officer would be on fair notice that in
order to conduct the type of strip/body cavity search conducted
here, he needed reasonable suspicion or else he would run afoul
of the Fourth Amendment.
The Court finds that construing the facts in favor of Mrs.
Richardson, as required at this stage of the proceedings, a
reasonable officer could not conclude that he had reasonable
suspicion
that
Mrs.
Richardson
possessed
under her clothing that were searched.
drugs
in
the
areas
Mason had information
from a reliable informant that a vehicle being driven by Mr.
Richardson may contain illegal drugs, that a female would be a
passenger in the vehicle, and that the occupants of the vehicle
33
may have the drugs on their person.
No specific information was
provided as to Mrs. Richardson’s role in the alleged illegal
activity.
She was not identified other than the generic gender
description, and no information was available to Mason that she
had any history of hiding drugs in her body cavities covered by
her clothing.
Furthermore, after the investigative stop, the
car was subjected to the less intrusive K-9 dog sniff after her
strip/body cavity search and not before.
Under the totality of
the circumstances based on the facts viewed in the light most
favorable to Mrs. Richardson, the Court finds that a reasonable
officer would have been aware that forcing a passenger in a
vehicle to exit the vehicle; enter a convenience store escorted
by an agent of the government; squeeze into a bathroom with that
agent, who is a complete stranger; remove clothing; and subject
orifices
to
inspection
and
penetration
based
solely
on
a
reliable tip that drugs may be in the car or on the persons
occupying the car
would constitute
a
violation of a clearly
established right under the Fourth Amendment.
The fact that
Atkinson may have been polite under the circumstances does not
eliminate the nature of the search or the fact that it was
compelled, and it does not justify the decision to conduct such
an intrusive search in the first place.
the
decision
to
conduct
the
As the person who made
unconstitutional
search
and
who
directed the manner in which it should be conducted, Mason is
34
not
entitled
Accordingly,
to
qualified
his
motion
immunity
for
as
summary
a
matter
judgment
as
of
law.
to
Mrs.
Richardson’s strip/cavity search claim is denied.
v.
The False Arrest of Mrs. Richardson
The Fourth Amendment requires probable cause for an officer
to make an arrest, and for qualified immunity, “an officer need
not
have
cause.”
omitted).
actual
probable
cause
but
only
arguable
probable
See Wood, 323 F.3d at 878 (internal quotation marks
The Court finds that Mason is entitled to qualified
immunity on this claim because there was arguable probable cause
to
arrest
Mrs.
Richardson
was
Amendment
Richardson
not
requires
charged
that
her
obstruction.16
for
with
arrest
cause for any criminal offense.
Although
obstruction,
the
be
by
supported
Mrs.
Fourth
probable
See Devenpeck v. Alford, 543
U.S. 146, 152-53 (2004) (rejecting the notion that the probable
cause inquiry must be confined to the known facts bearing upon
the offense actually invoked at the time of arrest); Brown v.
City of Huntsville, Ala., 608 F.3d 724, 735 (11th Cir. 2010)
(“If the arresting officer had arguable probable cause to arrest
for any offense, qualified immunity will apply.”).
16
Obstruction
Because the Court finds arguable probable cause to support an arrest
for obstruction, the Court need not address additional bases the
officers may have had to make the arrest.
Therefore, the alleged
facts about Mason’s actions involving the dog alert and subsequent
discovery of cocaine are immaterial to deciding whether Mason is
entitled to qualified immunity on the false arrest claim.
35
under Georgia law occurs when a person “knowingly and willfully
obstructs or hinders any law enforcement officer in the lawful
discharge
of
his
official
duties.”
O.C.G.A.
§
16-10-24.
Georgia courts have held that misdemeanor obstruction does not
require an act of violence or force.
Stryker v. State, 297 Ga.
App. 493, 494-95, 677 S.E.2d 680, 682 (2009).
Here, the facts show that Mrs. Richardson refused to follow
Ming’s orders to get back in front of Ming’s car when “she was
hollering”
as she approached
Richardson.
205:6.
Mason
during the search of
Mr.
Mason Dep. 79:18-24; D. Richardson Dep. 204:22-
She continued, causing Ming to repeat the order several
times and even threaten to handcuff her before she eventually
stepped back, but not as far back as he had originally directed.
D.
Richardson
officer’s
Dep.
lawful
204:18-206:14.
directions
during
Her
an
refusal
to
investigation
obey
an
supports
arguable probable cause for an arrest for obstruction, whether
or not actual probable cause existed.
Cf. West v. State, 296
Ga. App. 58, 61-62, 673 S.E.2d 558, 561-62 (2009) (finding that
a
suspect’s
refusal
to
comply
with
an
officer’s
repeated
commands to leave the scene could be a basis for an obstruction
conviction).
violated
Plaintiffs
clearly
cited
established
no
authority
constitutional
that
the
rights,
arrest
and
they
have failed to point to evidence that Mason’s arrest of Mrs.
Richardson
under
the
circumstances
36
was
so
egregious
that
it
violated the unreasonableness standard of the Fourth Amendment
“with obvious clarity.”
reasons,
Mason
is
Vinyard, 311 F.3d at 1350.
entitled
to
qualified
For these
immunity
on
Mrs.
Richardson’s false arrest claim.
b.
Defendants
immunity
because
actions
amount
DEPUTY MING
maintain
that
Plaintiffs
to
a
constitutional right.
Ming
cannot
violation
is
entitled
prove
of
that
a
to
his
clearly
The record, viewed
qualified
individual
established
in the light most
favorable to Plaintiffs, shows that Ming’s actions were limited
to
searching
officer,
and
Plaintiffs’
vehicle,
transporting
after Mason arrested them.
standing
Plaintiffs
to
the
guard
as
backup
Sheriff’s
Office
Plaintiffs do not dispute that these
acts fall within the scope of Ming’s discretionary authority.
The Court has found that Mason is entitled to qualified
immunity because he did not violate clearly established law when
he
stopped
Plaintiffs’
vehicle,
searched
the
vehicle,
and
conducted the pat down and pocket search of Mr. Richardson.17
For the same reasons, Ming is entitled to qualified immunity.
See, e.g., Grider, 618 F.3d at 1257 (“Probable cause may exist
based on the collective knowledge of law enforcement officials
derived from reasonably trustworthy information.”).
17
Ming knew
Although Plaintiffs contend that Mason, not Ming, conducted the pat
down, Ming admitted in his deposition that he performed the pat down
of Mr. Richardson. Ming Dep. 18:14-15.
37
that Mason, his supervisor, stopped the vehicle based on the
informant’s information about the occupants obtaining cocaine,
and
he
personally
observed
investigative stop.
what
transpired
during
the
Plaintiffs pointed to no evidence that Ming
was unreasonable to rely on Mason’s reasonable suspicion and
probable cause determinations.
Plaintiffs
argue
that
Ming
was
an
independent
participant in the strip and cavity searches.
voluntary
Plaintiffs point
to no evidence that Ming was involved in the search of Mrs.
Richardson.
As for Mr. Richardson, Plaintiffs contend that Ming
participated
provide
because
for
Plaintiffs
more
also
he
positioned
privacy
point
out
during
that
his
Mr.
body
at
an
angle
Richardson’s
Ming
saw,
but
did
searches
were
to
search.
not
determined
stop,
Mason’s search of Mr. Richardson.
Even
if
the
alleged
to
be
unconstitutional, Ming’s guard role would not deprive Ming of
qualified immunity.
“[A]ssisting officers during a search are
entitled to qualified immunity when there is no indication that
they
acted
officer
or
unreasonably
that
they
in
knew
following
or
should
the
have
lead
of
known
a
primary
that
conduct might result in a Fourth Amendment violation.”
their
Shepard
v. Hallandale Beach Police Dep’t, 398 F. App’x 480, 483 (11th
Cir. 2010) (per curiam); see also Brent v. Ashley, 247 F.3d
1294, 1305-06 (11th Cir. 2001) (granting qualified immunity to
38
officers who served a backup role and witnessed or conducted a
strip search based on their superior’s order, where the record
reflected “no reason any of [the officers] should question the
validity of that order”).
Plaintiffs have failed to show that a reasonable official
in Ming’s position would have fair and clear warning that Ming’s
backup
role
“was
unlawful
in
the
situation
he
confronted.”
Corey Airport Servs., 587 F.3d at 1285 (internal quotation marks
omitted).
Ming’s limited participation in the incident was not
so egregious that it was obviously unconstitutional, and Terry
and Evans do not address a backup officer’s liability.
See
Corey Airport Servs., 587 F.3d at 1287 (“For general principles
to clearly establish the law, the case must be an obvious one. .
. .
But, such decisions are rare.”).
These standards do not
provide obvious clarity that Ming’s particular actions as backup
officer
during
Richardson
the
would
alleged
violate
strip
clearly
and
cavity
established
search
of
Mr.
constitutional
rights.
Lastly, Plaintiffs asserted no basis for a false arrest
claim against Ming.
the
arrests
was
The record shows that Ming’s involvement in
limited
to
transporting
Plaintiffs
to
the
Sheriff’s Office in his vehicle after the arresting officer,
Mason, conducted the arrests.
Plaintiffs appear to argue Mason
lacked probable cause to make an arrest by fabricating evidence,
39
but
even
if
Mason
actually
lacked
probable
cause
for
this
reason, Ming could still be entitled to qualified immunity if a
reasonable
officer
under
the
same
believed probable cause existed.
circumstances
could
have
See Wood, 323 F.3d at 878
(“Even law enforcement officials who reasonably but mistakenly
conclude
that
probable
cause
is
present
are
immunity.”) (internal quotation marks omitted).
entitled
to
Ming personally
found cocaine hidden under the passenger seat, and Plaintiffs
have cited nothing in the record to indicate Ming’s awareness or
participation in any alleged fabrication or any other reason to
suspect a lack of arguable probable cause.18
Under these facts
and circumstances, it would be reasonable for an officer to rely
on his superior officer’s determination of probable cause for
arrest.
Furthermore, the Court has found that Mason is entitled
to qualified immunity for Mrs. Richardson’s false arrest claim,
and Ming is entitled to qualified immunity for the same reasons.
See, e.g., Grider, 618 F.3d at 1257 (“Probable cause may exist
based on the collective knowledge of law enforcement officials
derived
from
reasonably
trustworthy
information.”).
Because
Plaintiffs’ citations to authority and to the record fail to
create a disputed issue of material fact that could establish
18
In addition, any claim for conspiracy was not articulated in the
Complaint and is without support in the record. Plaintiffs’ citations
to Mrs. Richardson’s deposition do not establish that Ming saw or
otherwise participated in Mason’s K-9 search beyond the fact that
afterward Mason instructed Ming to come search the vehicle because the
dog had alerted. D. Richardson Dep. 231:2-234:2.
40
Ming
participated
constitutional
in
any
rights,
violations
the
Court
of
clearly
finds
established
Ming
entitled
to
qualified immunity for all federal claims.
c.
DEFENDANT ATKINSON
Plaintiffs’ federal claim against Atkinson is based solely
on her role assisting Mason with the personal search of Mrs.
Richardson.19
Plaintiffs maintain that conducting the alleged
strip and cavity search for drugs was unconstitutional under the
circumstances even if Atkinson was authorized to assist Mason
with such a search, but they also argue that Atkinson was not
even authorized or trained to perform the alleged search.
Court
first
authority
government
to
addresses
assist
agent
participating
in
in
the
whether
with
the
her
Atkinson
position
search,
search
she
lacked
such
would
would
The
sufficient
that
reasonable
have
be
a
known
that
violating
by
Mrs.
Richardson’s rights under the Fourth Amendment and would not be
entitled to qualified immunity.
19
Plaintiffs now claim that Atkinson “is the primary official
responsible for false arrest” by closing the door after joining Mrs.
Richardson in the bathroom.
Pls.’ Resp. to Def. Atkinson’s Mot. for
Summ. J. 6, ECF No. 40. This claim against Atkinson was not raised in
the Complaint, Compl. ¶¶ 36, 39-42, and cannot be raised for the first
time in response to summary judgment, Gilmour, 382 F.3d at 1315.
Also, Plaintiffs’ argument that Atkinson voluntarily participated in
all of the allegedly unconstitutional conduct of the sheriff’s
deputies is not supported in the record. Plaintiffs cite only to the
fact that Atkinson was standing nearby during some of the acts,
Atkinson Dep. 31:1-5, which is insufficient to raise a disputed issue
of material fact as to her individual liability on these grounds.
41
Although Plaintiffs cite no federal authority on the issue,
the
Eleventh
potentially
immunity,
Circuit
eligible
the
has
for
official
clearly
summary
must
held
that
judgment
have
been
“[t]o
due
even
be
to
qualified
engaged
in
a
‘discretionary function’ when [s]he performed the acts of which
the plaintiff complains.”
Holloman, 370 F.3d at 1263-64.
In
the context of qualified immunity, the “discretionary function”
inquiry focuses on whether the acts in question “are of a type
that fell within the employee’s job responsibilities.”
1265.
Id. at
The Court asks “whether the government employee was (a)
performing a legitimate job-related function (that is, pursuing
a job-related goal) (b) through means that were within h[er]
power to utilize.”
Id.
Again, Atkinson denies a search was ever performed, but the
Court views the record in the light most favorable to Plaintiffs
in deciding Defendants’ summary judgment motion.
Plaintiffs,
however, use Atkinson’s explanation of why she did not perform
the search in an attempt to show that she lacked discretionary
authority to do so.
Atkinson Dep. 34:10-14.
The Court finds
that Plaintiffs have failed to raise a factual dispute as to
whether
responding
assistance
is
to
part
responsibilities.
requests
of
by
Atkinson’s
law
enforcement
job-related
for
such
powers
and
The record shows that assisting the police
with searches falls within her discretionary authority because
42
Atkinson
has
previously
performed
personal
scene” in the course of her medical duties.
15; Atkinson Decl. ¶ 3.
searches
“on
the
Atkinson Dep. 16:1-
Temporarily putting aside the alleged
unconstitutionality of the search itself, responding in her EMS
truck
and
utilizing
her
medical
knowledge,
training,
and
experience to assist a sheriff’s deputy as requested was within
her power and pursuant to a legitimate function related to her
job as EMS Director.
The Court finds that for purposes of
qualified immunity, Atkinson was acting within her discretionary
authority when she conducted the strip search of Mrs. Richardson
at the direction of Mason.
Given the Court’s finding that Atkinson acted within her
discretionary authority, Plaintiffs bear the burden of showing
Atkinson is not entitled to qualified immunity.
F.3d at 1267.
Holloman, 370
The Court finds that Plaintiffs have failed to
carry this burden.
Although the Court has found that Mason’s
decision to conduct the search and his direction that Atkinson
assist
him
subjects
him to potential liability, it does not
necessarily follow that Atkinson would also be liable simply
because she conducted the actual intrusive search.
Plaintiffs
must
Atkinson’s
show
position
that
would
a
reasonable
have
been
government
aware
that
her
agent
in
conduct,
which
was
pursuant to a directive from a law enforcement officer, violated
Plaintiffs’
clearly
established
43
rights
under
the
Fourth
Amendment.
law.
In
Plaintiffs fail to meet this burden as a matter of
support
of
their
argument,
Plaintiffs
cite
to
the
Fourth Amendment generally, Rodriguez v. Furtado, 950 F.2d 805
(1st Cir. 1991), Beaulah v. Muscogee Cnty. Sheriff’s Deputies,
447 F. Supp. 2d 1342 (M.D. Ga. 2006), Evans v. Stephens, 407
F.3d
1272
(11th
Cir.
2005),
and
state
statutes
relating
to
training for peace officers and battery, O.C.G.A. §§ 35-8-3, 358-9 to -10, 16-5-23.1.20
Authority from the First Circuit, the
federal
and
district
establish
law
court,
in
qualified immunity.
this
state
Circuit
statutes
for
does
purposes
not
of
clearly
evaluating
See Courson v. McMillian, 939 F.2d 1479,
1497-98 & n.32 (noting that only the U.S. Supreme Court, the
Eleventh Circuit, and certain cases from the Georgia Supreme
Court can clearly establish a constitutional right); see also
Davis v. Scherer, 468 U.S. 183, 194 (1984) (“Officials sued for
constitutional violations do not lose their qualified immunity
merely
because
their
conduct
violates
some
statutory
or
administrative provision.”); Knight v. Jacobson, 300 F.3d 1272,
1275-76 (11th Cir. 2002) (stating that a violation of state law
is not enough by itself to support a federal § 1983 claim).
Therefore, the Court only considers whether the alleged search
violates
a
constitutional
right
20
clearly
Plaintiffs appear to attempt to cite to
impersonating an officer: O.C.G.A. § 16-10-23.
44
established
Georgia’s
by
statute
the
on
Fourth
Amendment
provides
“fair
and
and
Evans.
clear”
As
notice
explained
that
below,
assisting
a
neither
sheriff’s
deputy with a search of a female in this manner “was unlawful in
the situation [s]he confronted.”
Corey Airport Servs., 587 F.3d
at 1285 (internal quotation marks omitted).
It
is
not
obvious
that
Atkinson’s
conduct
violated
the
general unreasonable search and seizure standard of the Fourth
Amendment.
See id. at 1287 (“For general principles to clearly
establish the law, the case must be an obvious one. . . .
But,
such decisions are rare.”).
First, the Court finds the manner
in
her
which
Atkinson
conducted
search
was
not
sufficiently
abusive such that she would have been on notice that it violated
the
Fourth
Amendment.
In
Evans,
the
Eleventh
Circuit
did
conclude that strip searches conducted in a certain degrading
and
forceful
manner
were
obviously
unreasonable
in
the
constitutional sense without having to point to preexisting case
law addressing the specific acts.
407 F.3d at 1283.
The Evans
court reasoned that “every objectively reasonable officer would
have
known
that,
when
conducting
a
strip
search,
it
is
unreasonable to do so” by violently forcing two arrestees in a
small closet to remove their clothes in front of each other,
ridiculing
them
with
racist
language,
and
penetrating
their
anuses and lifting their testicles with the same baton without
intervening sanitation as alleged.
45
Id. at 1276-77, 1283.
Here,
the manner of the search of Mrs. Richardson was much less severe
because
Atkinson
allegedly
performed
the
cavity
search
in
private bathroom in a sanitary and relatively kind manner.
a
The
general principles in Evans do not make it clear that the manner
of
the
pre-arrest
Amendment.
Cf.
searches
cavity
Evans,
that
search
407
here
F.3d
penetrate
at
violates
1281
orifices
the
n.11
are
Fourth
(noting
not
that
per
se
unconstitutional).
The next question is whether Atkinson may be held liable
under
§
1983
previously,
officer
for
she
who
simply
was
was
in
criminal
was
following
orders
charge
aware
of
an
There
activity.
Atkinson
conducting
is
no
that
Mason
the
search.
from
a
law
investigation
evidence
did
not
to
As
noted
enforcement
of
potential
suggest
possess
that
reasonable
suspicion to believe that Mrs. Richardson had illegal contraband
hidden under her clothes, including within her body cavities.
Based on the present record, the Court must conclude that it was
Atkinson’s
exist.
understanding
Given
circumstances
this
that
that
such
understanding
Atkinson
faced,
reasonable
suspicion
and
the
totality
the
Court
cannot
of
did
the
conclude
that a reasonable person in her position would have known that
by
proceeding
with
the
search
she
Richardson’s Fourth Amendment rights.
entitled to qualified immunity.
46
would
be
violating
Mrs.
Therefore, Atkinson is
Cf. Skurstenis v. Jones, 236
F.3d
678,
684
(11th
Cir.
2000)
(reversing
an
order
denying
qualifying immunity to a medical official who performed a strip
search), overruled on a different ground by Powell v. Barrett,
541 F.3d 1298, 1314 (11th Cir. 2008) (en banc).
For the reasons
explained above, Atkinson is entitled to summary judgment on all
federal claims.
d.
Plaintiffs
violations
in
SHERIFF NEWTON
contend
his
Newton
supervisory
committed
capacity.
constitutional
Specifically,
Plaintiffs argue that Newton’s investigation conclusions served
as ratification of the alleged constitutional violations, that
Newton’s open policies and anti-drug position were the “moving
force” behind the alleged constitutional violations, and that
Newton’s failure to supervise Mason more closely amounted to
deliberate indifference.21
As discussed below, the Court finds
that Plaintiffs have pointed to no evidence in the record that
would lead a reasonable fact finder to find that Newton caused a
constitutional violation.
A supervisor may be liable under § 1983 for a subordinate’s
actions
when
there
is
a
causal
connection
between
the
supervisory actions and the alleged constitutional violation.
Belcher v. City of Foley, Ala., 30 F.3d 1390, 1396-97 (11th Cir.
21
Plaintiffs made no arguments in response to Defendants’ motion for
summary judgment on the failure to train claim. Therefore, this claim
has been abandoned. Resolution Trust Corp., 43 F.3d at 599.
47
1994).
A causal connection can be established when a history of
widespread
abuse
supervisor’s
puts
improper
the
supervisor
custom
or
policy
on
notice,
results
in
when
the
deliberate
indifference to constitutional rights, or when the facts support
an inference that the supervisor directed his subordinates to
act
unlawfully
or
knew
that
the
subordinates
unlawfully and failed to stop them from doing so.
would
act
Gonzalez v.
Reno, 325 F.3d 1228, 1234-35 (11th Cir. 2003).
Here, Plaintiffs point to no evidence that would lead a
reasonable fact finder to conclude there was any such causal
connection.
First, Newton’s post hoc approval of the actions in
question could not have possibly been the cause of these actions
because they had already occurred.
Second, Newton’s “policies”
do not satisfy the “extremely rigorous” standard for individual
liability of a supervisor for a subordinate’s actions.
Braddy
v. Fla. Dep’t of Labor and Emp’t Sec., 133 F.3d 797, 802 (11th
Cir. 1998).
explicitly
Newton consistently stated that his policies do not
prohibit
strip
searches
and
that
those
policies
contemplate that deputies will act within the limits of the law.
Newton Dep. 37:7-10.
Neither the substance of the existing
policies nor the absence of more effective policies amount to
the
deliberate
liability.
indifference
required
to
impose
individual
Moreover, it would take “considerably more proof
than [a] single incident” to establish a causal connection for
48
individual liability.
City of Okla. v. Tuttle, 471 U.S. 808,
823-24 (1985) (discussing the causal connection between a policy
and
a
constitutional
municipal liability).
deprivation,
but
in
the
context
of
Plaintiffs have simply failed to point to
evidence that would establish a causal connection.22
It is also significant that Plaintiffs point to no evidence
that Newton had notice that Mason would act in an allegedly
unlawful manner or that Newton failed to prevent such conduct
through alleged lack of supervision.
The Eleventh Circuit has
repeatedly
of
held
that
“without
notice
a
need
to
train
or
supervise in a particular area,” there can be no liability as a
matter of law.
Cir. 1998).
incident”
Gold v. City of Miami, 151 F.3d 1346, 1351 (11th
Plaintiffs “presented no evidence of a single prior
that
would
put
Newton
on
notice.
Id.
General
complaints about Mason’s rudeness and cursing are insufficient
to put Newton on notice of a need for additional supervision
regarding Mason’s personal searches.
See Brooks v. Scheib, 813
F.2d 1191, 1193 (11th Cir. 1987) (holding that even complaints
about the relevant unconstitutional conduct were insufficient to
give notice when they were “fully investigated and found to be
lacking in merit”).
Finding there to be insufficient evidence
22
Plaintiffs’ citation to the record does not justify an inference
that any other strip searches occurred in Georgetown-Quitman County
beyond this single incident.
See Mason Dep. 57:9-58:18 (explaining
that Mason does not think he performed similar searches while working
for the Sheriff’s Office, but he was not completely sure).
49
that
could
establish
any
causal
connection
between
Newton’s
individual actions and the alleged constitutional violation, the
Court concludes that Newton is entitled to summary judgment on
these claims.
2.
State Law Claims
In addition to their § 1983 claims, Plaintiffs assert state
law
claims
for
retention.23
false
arrest
and
failure
to
train/negligent
Defendants contend that to the extent the Complaint
states these claims against them, all individual Defendants are
entitled to official immunity under Georgia law.
It is not
clear against which Defendants Plaintiffs have asserted these
claims, but based on the facts alleged in the Complaint, it
appears
that
the
false
arrest
claims
officers Mason, Ming, and Newton.24
are
directed
against
It also appears that the
failure to train/negligent retention claim is directed against
Sheriff
Newton.
As
previously
noted,
Mason
is
not
seeking
summary judgment as to any claims arising from his arrest of Mr.
Richardson, so the only state law claim against Mason to be
resolved
at
summary
judgment
relates
23
to
Mrs.
Richardson’s
To the extent Plaintiffs attempt to assert state law claims of
assault and battery based on Atkinson’s alleged search of Mrs.
Richardson, Pls.’ Resp. to Def. Mason’s Br. in Supp. of Mot. for Summ.
J. 3, these claims were not raised in the Complaint and cannot be
raised for the first time in response to summary judgment.
Gilmour,
382 F.3d at 1315.
24
Any false arrest claim against Atkinson for closing the door after
joining Mrs. Richardson in the bathroom was not raised in the
Complaint and cannot be raised for the first time in response to
summary judgment. Gilmour, 382 F.3d at 1315; see supra note 19.
50
arrest.
The Court concludes that Defendants’ motion for summary
judgment should be granted as to Plaintiffs’ remaining state law
claims
against
Mason,
Ming,
and
Newton
based
on
official
immunity.
Georgia law protects officials
arising
from
the
performance
of
from
individual
“discretionary
liability
actions
taken
within the scope of their official authority” as long as there
is no actual malice or actual intent to cause injury.
Cameron
v. Lang, 274 Ga. 122, 123, 549 S.E.2d 341, 344 (2001) (internal
quotation
marks
omitted).
Making
arrests
falls
within
discretionary functions of law enforcement officers for purposes
of official immunity.
See, e.g., Selvy v. Morrison, 292 Ga.
App. 702, 704, 665 S.E.2d 401, 404 (2008) (“The making of a
warrantless
arrest
for
conduct
occurring
in
an
officer’s
presence is a discretionary act . . . .”); Reed v. DeKalb Cnty.,
264 Ga. App. 83, 86, 589 S.E.2d 584, 587-88 (2003) (describing
the
decision
to
make
an
arrest
as
discretionary
because
it
requires “personal judgment and deliberation on the part of the
officer”).
Likewise, a sheriff’s supervision, training, hiring,
and firing decisions are discretionary under Georgia law.
See,
e.g., Russell v. Barrett, 296 Ga. App. 114, 120, 673 S.E.2d 623,
629
(2009)
operation
training
of
and
(“[T]his
a
Court
police
supervision
has
consistently
department,
to
be
51
including
provided
its
held
that
the
the
degree
of
officers,
is
a
discretionary governmental function . . . .”) (alteration in
original); Carter v. Glenn, 249 Ga. App. 414, 416, 548 S.E.2d
110,
113
(2001)
(finding
police
chief
entitled
to
official
immunity against negligent hiring and retention claim because
such
decisions
were
discretionary).
Therefore,
to
overcome
official immunity, Plaintiffs have the burden of pointing to
some
evidence
that
a
particular
Defendant
malice or deliberate intent to injure.
86, 589 S.E.2d at 588.
such
evidence
argument
defense.25
in
and
acted
with
actual
Reed, 264 Ga. App. at
Plaintiffs have directed the Court to no
have
opposition
Accordingly,
not
to
even
attempted
Defendants’
Defendants
are
to
make
official
entitled
to
a
clear
immunity
official
immunity as to these state law claims.
II.
Plaintiffs’ Motion for Partial Summary Judgment
Plaintiffs move for summary judgment against all Defendants
as to their Fourth Amendment claims.
As previously explained,
the only Fourth Amendment claims that have not been dismissed by
today’s Order are Mr. and Mrs. Richardson’s strip search claims
25
The Court notes that Plaintiffs’ only reference to malicious intent
was found in the Complaint’s section generally seeking punitive
damages from each Defendant.
This does not impact the Court’s
decision on official immunity due to the utter lack of argument
addressing specific acts of specific Defendants in the respective
response briefs. Cf. Barnard v. Turner Cnty., 306 Ga. App. 235, 237 &
n.3, 701 S.E.2d 859, 862 & n.3 (2010) (finding that because the
plaintiff did not allege that the defendant intended to cause the
injury, the complaint did not state a claim of actual malice for
purposes of defeating official immunity despite generally seeking
punitive damages for “willful, intentional, fraudulent, and reckless”
acts).
52
and Mr. Richardson’s false arrest claims against Mason in his
individual capacity.
Although the Court found that Mason was
not entitled to summary judgment as to these claims, the record
is clear that genuine factual disputes exist regarding these
claims.
For example, both Mason and Atkinson dispute that the
strip searches occurred in the manner claimed by Plaintiffs.
Construing the evidence in favor of Mason as the non-movant, the
a reasonable jury could find that the searches were reasonable
under the Fourth Amendment.
Accordingly, Plaintiffs’ motion for
summary judgment must be denied.
CONCLUSION
For
partial
the
reasons
summary
discussed
judgment
(ECF
above,
No.
26)
Defendants’
is
denied
motion
as
to
for
Mrs.
Richardson’s Fourth Amendment strip search claim against Mason
in his individual capacity, but is granted as to all remaining
claims
for
which
summary
judgment
was
sought.26
Plaintiffs’
motion for partial summary judgment (ECF No. 23)
Plaintiff’s
motion
to
amend
(ECF
No.
43)
to
Unified Government of Georgetown-Quitman County
is denied.
substitute
the
for Defendant
Quitman County is granted, but summary judgment is granted as to
all claims against that Defendant.
claims remain pending for trial:
Accordingly, the following
(1) Mrs. Richardson’s Fourth
Amendment strip search claim against Mason; (2) Mr. Richardson’s
26
See supra note 3.
53
Fourth
Amendment
strip
search
claim
against
Mason;
(3)
Mr.
Richardson’s Fourth Amendment unreasonable seizure/arrest claim
against Mason; and (4) Mr. Richardson’s state law false arrest
claim against Mason.
IT IS SO ORDERED, this 17th day of December, 2012.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
54
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