BROCK v. COLUMBUS CONSOLIDATED GOVERNMENT et al

Filing 17

ORDER granting 6 Motion to Dismiss for Failure to State a Claim; granting 11 Motion for Leave to File an Amended Complaint; and denying as moot 14 Motion to Amend/Correct the Motion to Dismiss for Failure to State a Claim. Ordered by US DISTRICT JUDGE CLAY D LAND on 06/30/15. (vac)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
MITCHELL BROCK,

*

Plaintiff,

*

vs.

*
CASE NO. 4:14-CV-264 (CDL)

THE COLUMBUS CONSOLIDATED
*
GOVERNMENT, R.T. BOREN, ISAIAH
HUGLEY, THOMAS E. BARRON, STEVE *
COX, HARVEY HATCHER, JOBY
DUNCAN, and RANDY LONG,
*
Defendants.

O R D E R
After

Plaintiff

Mitchell

Brock,

a

police

officer,

was

indicted by a state grand jury for two felony offenses, the
Chief

of

Police,

administrative
claims

that

Defendant

leave
his

without

R.T.
pay

supervisors,

and

Boren,
then

placed

motivated

fired
by

him

him.

racial

on

Brock
animus,

fabricated evidence to support the criminal charges against him.
Without their racially motivated conduct, Brock claims he would
have

never

terminated.
and

§ 1983

against

the

capacities:

been

indicted

and

thus

would

have

never

been

He filed this action pursuant to 42 U.S.C. § 1981
against

the

following

Columbus
city

Consolidated

officials

in

Government

their

and

individual

police chief R.T. Boren; police officers Harvey

Hatcher, Joby Duncan, and Randy Long; and city manager Isaiah

Hugley, and human resources director Thomas E. Barron.

Brock

seeks to amend his Complaint (ECF No. 11), and the Court grants
him permission to do so.

Defendants filed a motion to dismiss

for failure to state a claim (ECF Nos. 6, 14).
fails

to

amended

allege

sufficient

Complaint

facts

plausibly

in

stating

either
a

claim

Because Brock

his
for

original

or

race-based

discrimination, the Court dismisses this action.
MOTION TO DISMISS STANDARD
“To

survive

a

motion

to

dismiss”

under

Federal

Rule

of

Civil Procedure 12(b)(6), “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).

The complaint must include sufficient factual

allegations “to raise a right to relief above the speculative
level.”

Twombly, 550 U.S. at 555.

In other words, the factual

allegations must “raise a reasonable expectation that discovery
will reveal evidence of” the plaintiff’s claims.

Id. at 556.

“Rule

well-pleaded

12(b)(6)

does

not

permit

dismissal

of

a

complaint simply because ‘it strikes a savvy judge that actual
proof of those facts is improbable.’” Watts v. Fla. Int’l Univ.,
495 F.3d 1289, 1295 (11th Cir. 2007) (quoting Twombly, 550 U.S.
at 556).

2

PLAINTIFF’S FACTUAL ALLEGATIONS
Brock alleges the following facts in support of his claims.
The Court accepts these allegations as true for purposes of the
pending motion to dismiss.
Brock—a

young

black

man—was

beginning

his

career

as

a

police officer in Columbus, Georgia when two individuals were
murdered.

Brock’s supervisors at the police department showed

him pictures of the victims and Brock identified one as his
brother

James’s

ex-girlfriend.

Because

he

knew

one

of

the

victims, Brock was instructed by his superiors—Lieutenant Cox,
Detective

Duncan,

investigation.

and

Sergeant

Hatcher—to

stay

out

of

the

Brock agreed, and alleges that he “did not ever

initiate any involvement in the investigation.”

Compl. ¶ 33,

ECF No. 1.
Brock was, however, accused of involving himself in the
murder

investigations

in

two

ways.

First,

he

contacted

a

witness’s former employer, which resulted in his indictment for
attempting to influence a witness.

Second, he was accused of

making a threatening hand gesture toward another witness, which
resulted in his indictment for threatening a witness.
I.

Attempt to Influence a Witness
Shortly after the murders occurred, Brock helped his mother

locate a woman that, unbeknownst to Brock, was a witness in the
murder cases.

James’s ex-girlfriend and a roommate, Jarren,

3

lived in an apartment leased by Brock’s mother.

After the ex-

girlfriend was murdered, Brock’s mother needed to contact the
roommate, Jarren, but did not know her last name.

To help his

mother find Jarren’s last name, Brock called Jarren’s former
employer, IHOP.

He did not speak with Jarren.

When Brock

called IHOP he did not know that Jarren was a witness in the
murder

cases

or

that

by

contacting

her

employer,

he

was

potentially interfering with a witness.
The next day, Brock was at work when Cox asked him about
the call to IHOP.

Brock explained that he was helping his mom. 1

Cox then told Brock, for the first time, that he intended to
charge his brother James for the murders.
doors

and

with

only

Brock

present,

Cox,

Then behind closed
a

white

officer,

screamed, used profanity, and said: “I’m going to put your black
ass in jail too.”

Id. ¶ 36.

This statement is the only factual

allegation in the Complaint suggesting that anyone at the police
department held a potentially racially-motivated animus toward
Brock.
Cox then relayed to Brock’s training supervisor that Brock
called IHOP and inquired about a witness, Jarren.

The police

department took no disciplinary action against Brock at that
time.
1

Brock alleges that he had a similar conversation explaining his IHOP
call with Duncan and Hatcher.
Brock also alleges that Duncan and
Hatcher called IHOP and confirmed Brock’s story.

4

II.

Influencing a Witness
In addition to contacting Jarren’s former employer, Brock

was also accused of making a threatening hand gesture toward a
witness.

While

at

his

brother

James’s

preliminary

hearing,

Brock learned that James’s friend, Marvel Glover, was a witness
in the murder cases.

The next day, Glover’s father called the

police department and claimed that he and his sons were outside
Glover’s apartment when Brock drove by the apartment and flashed
a

hand

gesture

simulating

shooting

a

gun

at

Glover

and

his

family.
In response, Duncan and Hatcher interviewed Glover and his
brothers

about

the

gesture

and

got

quite

a

different

story.

Brock alleges that Glover stated that he did not feel threatened
by the gesture.

One of Brock’s brothers even said that he

thought Brock was giving them a “peace” sign and took it as a
friendly way of saying “Hey, how you doing?”

Compl. ¶ 50.

Despite this conflicting testimony, Cox reported to Brock’s
training supervisor that Brock made a threatening gesture toward
Glover.

Brock alleges that Cox knew this information was false

because

Glover

stated

in

his

interview

threatened by Brock’s hand gesture.

that

was

not

Brock was not informed of

the accusation or given an opportunity to respond.

5

he

III. The Indictment
Sometime in the year after the murders, Brock alleges that
Boren,

Long,

Duncan,

and

Hatcher—with

Cox’s

input—gave

the

district attorney information about Brock that they knew was
false.

The officers used this allegedly false information to

“demand”

that

the

district

attorney

seek

Brock’s

indictment.

Brock alleges that the officers took this information to the
district

attorney

Brock indicted.

out

of

a

racially-motivated

desire

to

see

While Brock does allege that Cox threatened to

“put his black ass in jail,” Cox was not present at the meeting
with

the

district

attorney.

As

to

the

officers

that

were

present—Boren, Long, Duncan, and Hatcher—Brock does not allege
any facts suggesting that these individuals had a racial motive
when

they

met

with

the

district

attorney

and

sought

his

indictment.
About a year after the murders, in October 2010, a grand
jury indicted Brock on two felony charges: (1) criminal attempt
to influence a witness, and (2) influencing a witness.

As to

the first charge, Brock was indicted for attempting to influence
a witness because of his phone call to Jarren’s employer, IHOP,
despite the fact that Brock had explained to the officers why he
contacted IHOP and no disciplinary action was taken.

As to the

second charge, Brock was indicted for influencing a witness due
to his allegedly threatening hand gesture toward Glover, even

6

though Glover gave an interview denying that he was threatened
by Brock’s gesture.

The same day the indictment was issued,

Chief Boren put Brock on administrative leave without pay.
IV.

Termination and Appeal
Three days later, Chief Boren terminated Brock because of

his

indictment.

Brock

asked

Chief

Boren

to

leave

him

on

administrative leave without pay pending the resolution of his
felony charges, but the Chief refused.
violated

the

City

policy,

which

Brock alleges that this

required

the

Chief

to

allow

Brock to remain on administrative leave pending resolution of
his charges.

Brock alleges that Defendants Hugley and Barron

were responsible for ensuring that the policy was administered
in

a

nondiscriminatory

way,

and

that

they

failed

to

do

so

because they allowed Chief Boren to discriminate against Brock
because of his race.
Later,

Chief

Boren

promised

Brock

that

criminal charges, he would get his job back.
jury acquitted him of the charges.
give Brock his job back.

if

he

beat

the

Brock did so—a

But Chief Boren refused to

Brock alleges that, by refusing to

reinstate him, Chief Boren discriminated against Brock because
of his race.

Brock also alleges that Hugley and Barron should

have ensured that the policy was enforced in a way that did not
discriminate against him, but failed to do so.

7

Brock appealed his termination to the Columbus Personnel
Review Board. 2

The Board, according to Brock, “rubber stamped”

Chief Boren’s “racially motivated decision to terminate” him.
Pl.’s First Am. Compl. ¶ 63, ECF No. 11-1.

Brock also blames

Barron, the director of the Board, for failing to ensure that
the Board did not discriminate against Brock.
As part of his employment discrimination claim, Brock avers
that four white police officers also engaged in criminal conduct
but were not terminated.

The white officers, however, were also

not indicted on felony charges.
DISCUSSION
Brock

sues

all

the

Defendants

for

discrimination under § 1981 and § 1983.
Brock

now

rights

acknowledges

under

Amendment

is

that claim.
Brock’s

the

that

Equal

time-barred,

his

claim

Protection
and

race-based

employment

As to his § 1983 claim,
for

Clause

therefore,

violation
of

the

the
Court

of

his

Fourteenth
dismisses

As to the remaining § 1981 claim, the Court grants

motion

to

amend

his

Complaint,

and

the

following

discussion includes an analysis of those amended allegations.
Section 1981 states: “All persons within the jurisdiction
of the United States shall have the same right . . . to make and
enforce contracts, to sue, be parties, give evidence, and to the
2

The Complaint originally listed several municipal officers as
defendants that the parties have since dismissed by stipulation. See
ECF Nos. 3, 16.
Accordingly, this Order does not address arguments
made regarding the now-dismissed parties.

8

full

and

equal

security

of

citizens.”

benefit

persons

of

all

and

laws

property

42 U.S.C. § 1981(a).

and
as

proceedings

is

enjoyed

for
by

the

white

Simply put, in the employment

context, an employer cannot take an adverse employment action
against an employee that is motivated by the employee’s race.
Courts generally use the same analytical framework for § 1981
employment discrimination claims as they use for similar claims
brought under Title VII.

See Bryant v. Jones, 575 F.3d 1281,

1307 (11th Cir. 2009); Rice-Lamar v. City of Ft Lauderdale, 232
F.3d 836, 843 n.11 (11th Cir. 2000).
At
‘provide

the

motion

enough

to

dismiss

factual

stage,

matter

“a

(taken

intentional race discrimination.’”

complaint

as

true)

need
to

only

suggest

Surtain v. Hamlin Terrace

Found., No. 14-12752, 2015 WL 3719501 at *4 (11th Cir. June 16,
2015)

(per

curiam)

(quoting

Davis

v.

Coca–Cola

Consol., 516 F.3d 955, 974 (11th Cir. 2008)).
pleaded

factual

allegations

of

a

complaint

Bottling

Co.

If “the well-

plausibly

suggest

that the plaintiff suffered an adverse employment action due to
intentional

racial

discrimination,”

then

the

complaint

should

survive a motion to dismiss. Id.
Although
action,

he

Brock

does

not

certainly

alleges

allege

sufficient

an

adverse

facts

that

employment
plausibly

establish that his race was a motivating factor in Chief Boren’s
decision to place him on administrative leave without pay and

9

terminate

him.

Duncan,

Brock

Hatcher,

alleges

and

Cox

that

“Defendants

intentionally

Boren,

and

Long,

maliciously

facilitated the D.A.’s direct presentation to the grand jury for
a felony indictment of [Brock] because of their racial animosity
toward [Brock].”

Pl.’s First Am. Compl. ¶ 54 (emphasis added).

But the only fact Brock alleges to support this conclusion is
one isolated statement by Defendant Cox, who Brock alleges said
“I’m going to put your black ass in jail too.”

Compl. ¶ 36.

Cox was not present for the meeting with the district attorney
and he did not make the decision to put Brock on administrative
leave

and

terminate

Brock

that

suggesting

him.
other

four

the

does

not

officers

allege

that

any

met

facts

with

the

district attorney—Boren, Long, Duncan, or Hatcher—shared Cox’s
racial animus.

Nor does Brock allege that any of the officers

overheard or agreed with Cox’s statement; instead, Brock alleges
that

Cox

Brock’s

made

the

factual

conclusion

that

statement

allegations
all

of

the

behind
do

closed

not

doors.

plausibly

Defendant

police

In

support

sum,

officers

his
were

motivated by race when they took the actions he complains of.
More importantly, Brock does not allege anything suggesting
that

Chief

Boren—the

administrative

leave

discriminatory

animus

racially-related

decisionmaker
and

regard

termination—either

against

comment

with

to

Brock
Brock.

10

or

to

personally

knew
Without

that
any

Cox

Brock’s
held

a

made

a

connection

between

Cox’s

statement,

which

is

the

only

fact

suggesting

racial animus, and Chief Boren’s decision to terminate Brock,
Brock’s Complaint fails to allege that his adverse employment
action occurred due to racial discrimination or was motivated in
any way by racial animus.
In an attempt to rescue his claim, Brock seeks to rely on
circumstantial

evidence

of

racial

motivation.

He

alleges

summarily that other similarly situated white police officers
engaged in similar conduct but were not put on administrative
leave or terminated.
support

this

But the facts alleged by Brock do not

conclusion.

To

make

out

a

prima

facie

circumstantial case of employment discrimination, the plaintiff
must point to a comparator whose conduct is very similar to the
plaintiff’s conduct.

Maniccia v. Brown, 171 F.3d 1364, 1368

(11th Cir. 1999) (requiring “that the quantity and quality of
the comparator’s misconduct be nearly identical”).

Brock fails

to meet this requirement: he makes no allegation that any other
police officers were indicted by a grand jury for two felony
offenses
jobs.
he

was

involving

witness

tampering

and

yet

retained

their

Brock, therefore, fails to allege facts suggesting that
disciplined

more

harshly

than

a

similarly-situated

comparator. 3

3

Although Brock’s arguments suggest reliance upon the McDonnell
Douglas analytical framework, the Court notes that the U.S.
11

In sum, the Court recognizes that Brock has sufficiently
alleged that one individual at the police department, Cox, may
have had a racial animus toward him.

The Court also recognizes

that Brock alleged an adverse employment action.

But he did not

allege any facts that either suggest or allow the Court to infer
a connection between Cox’s statement and the adverse employment
action.

Moreover,

establish

that

motivated

in

Brock

Chief
any

alleged

Boren’s

way

by

no

adverse

race.

facts

that

employment

Having

plausibly

actions

failed

to

were

allege

sufficient facts to support his claim for race-based employment
discrimination, the Court grants Defendants’ motion to dismiss.
CONCLUSION
The Court does not dismiss Brock’s Complaint lightly.

But

when a Complaint fails to allege facts that plausibly state a
claim

of

race

discrimination,

it

must

be

Accordingly, Defendants’ motion to dismiss is granted.

dismissed.
(ECF No.

Court of Appeals for the Eleventh Circuit recently announced,
“McDonnell Douglas’s burden-shifting framework is an evidentiary
one, not a pleading requirement.”
Surtain at *4.
While the
Court does not doubt that a plaintiff could sustain his claim at
the motion to dismiss stage by alleging sufficient facts to meet
the elements of the McDonnell Douglas framework, Brock has
failed to do so here.
The Court does not dismiss Brock’s
Complaint based upon a lack of evidence.
The Complaint is
dismissed because Brock fails to allege sufficient facts to make
it over the McDonnell Douglas hurdle or to plausibly suggest
that his adverse employment actions were motivated in any way by
his race.
12

6).

Defendants’

supplemental

motion

qualified immunity is denied as moot.

to

dismiss

based

on

(ECF No. 14).

IT IS SO ORDERED, this 30th day of June, 2015.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

13