WRIGHT v. WATSON et al

Filing 143

ORDER finding that O.C.G.A. § 51-12-33 does not apply to Plaintiff's § 1983 claims. Ordered by US DISTRICT JUDGE CLAY D LAND on 09/18/2017. (CCL)

Case 4:15-cv-00034-CDL Document 143 Filed 09/18/17 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
ROBERT H. WRIGHT JR.,

*

Plaintiff,

*

vs.

*

CASE NO. 4:15-CV-34 (CDL)

JERALD WATSON and JOHN GOODRICH, *
Defendants.

*
O R D E R

Until

twelve

years

ago,

“Georgia

followed

common law rule of joint and several liability.”

the

traditional

Thomas A. Eaton,

Who Owes How Much? Developments in Apportionment and Joint and
Several Liability Under O.C.G.A. § 51-12-33, 64 Mercer L. Rev. 15,
15 (2012).

Then in 2005, the legislature amended O.C.G.A. § 51-

12-33 to eliminate joint and several liability in Georgia personal
injury cases.

See O.C.G.A. § 51-12-33(b) (stating that the trier

of fact shall “apportion its award of damages among the persons
who

are

liable

according

to

the

percentage

of

fault

of

each

person” and shall not impose “a joint liability among the persons
liable”).
applies

Here,
to

Defendants

Plaintiff’s

contend

federal

that

O.C.G.A. § 51-12-33

constitutional

claims

under

42 U.S.C. § 1983, and they asked the Court to instruct the jury on
the issue of apportionment.
bench
§ 1983

that

O.C.G.A. §

claims

and

The Court previously ruled from the

51-12-33

that

the

does

jury

not

would

apply
not

be

to

Plaintiff’s

instructed

on

Case 4:15-cv-00034-CDL Document 143 Filed 09/18/17 Page 2 of 8

apportionment.

Pretrial Conference Tr. 22:4-8, 52:23-53:1, Aug.

2, 2017, ECF No. 139.

This Order sets forth the rationale for

that decision.
BACKGROUND
Plaintiff Robert Wright claims that Defendants Jerald Watson
and

John

Goodrich

were

part

of

a

law

enforcement

team

that

illegally searched his home after spotting a marijuana grow site
on his next-door neighbor’s property.

Plaintiff argues that the

law enforcement officers did not have probable cause to seek a
search warrant for his property but that Watson, with input from
Goodrich,

decided

to

warrant.

According

Goodrich,

secured

manufacture
to
a

probable

Plaintiff,
search

cause

Watson,

warrant

for

with

by

a

search

input

making

from

material

misrepresentations and omissions in the search warrant affidavit.
When

officers

search

searched

warrant,

Plaintiff’s

they

a

found

belonged to Plaintiff’s wife.

small

property
amount

pursuant
of

to

that

marijuana

that

Officers arrested Plaintiff and his

wife for marijuana possession and felony marijuana manufacturing.
Plaintiff

initially

brought

Fourth

Amendment

claims

under

§ 1983 against a number of the law enforcement officers who were
involved in the searches.
his

claims

against

most

After discovery, Plaintiff dismissed
of

the

officers,

and

the

only

claim

remaining is his Fourth Amendment claim against Defendants Watson
and Goodrich.

Now, Defendants want the Court to ask the jury to

2

Case 4:15-cv-00034-CDL Document 143 Filed 09/18/17 Page 3 of 8

determine

whether

violation

of

any

of

Plaintiff’s

the

following

Fourth

Amendment

individuals
rights,

caused

and

to

a

what

extent: Watson, Goodrich, Plaintiff himself, Plaintiff’s wife, and
“other law enforcement officers.”
Pretrial Order 29, ECF No. 136.

Defs.’ Proposed Verdict Form,
The Court is convinced that it

would be error to give such an instruction.
DISCUSSION
Section 1983 provides a cause of action against officials
who,

under

color

constitutional

of

rights.

state
42

law,

deprive

U.S.C. §

a

1983.

person

of

Although

his

§ 1983

“creates ‘a species of tort liability in favor of persons who are
deprived of rights, privileges, or immunities secured to them by
the Constitution,’” Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S.
299, 305–06 (1986) (quoting Carey v. Piphus, 435 U.S. 247, 253
(1978)),

§ 1983

“does

not

specify

the

method

for

measuring

damages,” Murphy v. City of Flagler Beach, 846 F.2d 1306, 1308
(11th Cir. 1988).

The Court thus looks to 42 U.S.C. § 1988 to

determine the law of damages.

Murphy, 846 F.2d at 1308.

Section

1988 provides, in relevant part:
The jurisdiction in civil and criminal matters conferred
on the district courts by the [civil rights laws] shall
be exercised and enforced in conformity with the laws of
the United States, so far as such laws are suitable to
carry the same into effect; but in all cases where they
are not adapted to the object, or are deficient in the
provisions necessary to furnish suitable remedies and
punish offenses against law, the common law, as modified
and changed by the constitution and statutes of the
State wherein the court having jurisdiction of such
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Case 4:15-cv-00034-CDL Document 143 Filed 09/18/17 Page 4 of 8

civil or criminal cause is held, so far as the same is
not inconsistent with the Constitution and laws of the
United States, shall be extended to and govern the said
courts in the trial and disposition of the cause . . . .
42 U.S.C. § 1988(a).
“Section 1988 requires courts to use a ‘three-step process’
to determine the rules of decision applicable to a civil rights
claim.”

Murphy, 846 F.2d at 1308 (quoting Wilson v. Garcia, 471

U.S. 261, 267, (1985)).

The first step is to “employ federal law

if it enforces the civil and criminal civil rights statutes.”

Id.

“If no suitable federal rule exists,” the second step is to apply
“state common law as modified by the constitution and statutes of
the forum state.”

Id.

But the “second step is limited by a third

step which allows courts to apply state law only if it is not
inconsistent

with

the

federal

constitution

and

laws.”

Id.

(emphasis added).1
Defendants contend that § 1983 is deficient on the issue of
joint

and

several

liability

because

it

does

not

specifically

address compensatory damages in a case where more than one person
is liable for the plaintiff’s injuries.

Defendants, therefore,

assert that the Court should look to Georgia law to fill in this
gap.

1

In Murphy, the Eleventh Circuit found, based on its precedents and
other case law, that “a federal rule of mitigation applies in” § 1983
damages cases. Murphy, 846 F.2d at 1310. The Eleventh Circuit observed
that the rule was consistent with the purposes of § 1983 and did not
reach step two of the three-step process. Id. at 1309-10.

4

Case 4:15-cv-00034-CDL Document 143 Filed 09/18/17 Page 5 of 8

As a preliminary matter, the Court notes that the Eleventh
Circuit and its predecessor have

found that joint and several

liability applies in § 1983 damages actions.

See, e.g., Finch v.

City of Vernon, 877 F.2d 1497, 1503 (11th Cir. 1989) (finding that
“the district court, applying a federal rule of damages, correctly
held the City jointly and severally liable for the damages [the
plaintiff] suffered” when he was wrongfully terminated); Palmer v.
Hall, 517 F.2d 705, 706, 710 (5th Cir. 1975) (affirming joint and
several

judgment

against

police

officer

who

shot

a

fleeing

juvenile, even though the judgment against his co-defendant, the
mayor, was reversed because there was no evidence that the mayor
participated in the incident); cf. Dean v. Gladney, 621 F.2d 1331,
1338 (5th Cir. 1980) (noting that joint and several liability is
only

appropriate

in

a

§ 1983

action

where

joint

tortfeasors’

“intertwined and interlocking” actions cause an injury) (quoting
Nesmith v. Alford, 318 F.2d 110, 119 (5th Cir. 1963)).2
Even if the Court assumes that there is no federal rule of
joint and several liability, the Court may only apply Georgia’s
apportionment

statute,

O.C.G.A. §

51-12-33,

“if

inconsistent with the federal constitution and laws.”
F.2d at 1308.

it

is

not

Murphy, 846

“To determine whether state law is inconsistent

with federal law within the meaning of § 1988(a), the Supreme
2

In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en
banc), the Eleventh Circuit adopted as binding precedent all decisions of
the former Fifth Circuit handed down prior to the close of business on
September 30, 1981.

5

Case 4:15-cv-00034-CDL Document 143 Filed 09/18/17 Page 6 of 8

Court teaches that courts must look to the text of the federal
statutes and Constitutional provisions at issue as well as the
policies expressed in them.”
v.

City

of

Prattville,

639

Estate of Gilliam ex rel. Waldroup
F.3d

1041,

1046

(11th

Cir.

2011)

(citing Robertson v. Wegmann, 436 U.S. 584, 590 (1978)).
important
injured

policy
by

underlying

deprivation

of

§ 1983

is

federal

“compensation
rights.”

of

Id.

One

persons
(quoting

Robertson, 436 U.S. at 591); accord Gilmere v. City of Atlanta,
864 F.2d 734, 739 (11th Cir. 1989).
underlying

§ 1983

is

“prevention

acting under color of state law.”

of

Another important policy
abuses

of

power

by

those

Estate of Gilliam, 639 F.3d at

1046-47 (quoting Robertson, 436 U.S. at 591).

The traditional

common law rule of joint and several liability is consistent with
these two policy considerations.

The question for the Court is

whether Georgia’s apportionment statute is consistent with these
policies.
Under Georgia’s apportionment statute, a jury is to consider
the

fault

of

each

person

or

entity

that

contributed

to

the

plaintiff’s injury, “regardless of whether the person or entity
was,

or

could

have

been,

O.C.G.A. § 51-12-33(c).

named

as

a

party

to

the

suit.”

In other words, the jury must consider

the fault of “all persons or entities who have breached a legal
duty in tort that is owed with respect to the plaintiff, the
breach of which is a proximate cause of the injury sustained by

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Case 4:15-cv-00034-CDL Document 143 Filed 09/18/17 Page 7 of 8

the plaintiff.”
2015).

Zaldivar v. Prickett, 774 S.E.2d 688, 697 (Ga.

“That

includes

not

only

the

plaintiff

himself

and

defendants with liability to the plaintiff, but also every other
tortfeasor whose commission of a tort as against the plaintiff was
a

proximate

cause

of

his

injury,

regardless

of

whether

such

tortfeasor would have actual liability in tort to the plaintiff.”
Id.

This is so regardless

tortfeasor.

of the intent or immunity of the

Id. (explaining that a tortfeasor with immunity is

still “at fault” for a plaintiff’s injuries); see also Couch v.
Red

Roof

Inns,

Inc.,

729

S.E.2d

378,

383

(Ga.

2012)

(“Both

negligent tortfeasors and intentional tortfeasors are ‘answerable
in law’ to a plaintiff for damages caused to that plaintiff.”).
If these rules applied to a § 1983 Fourth Amendment claim,
then a jury could apportion damages to “at fault” non-parties
whose conduct contributed to the plaintiff’s injury, even if their
conduct was merely negligent and not a Fourth Amendment violation.
See Maughon v. Bibb Cty., 160 F.3d 658, 660 (11th Cir. 1998)
(“Negligent
Amendment.”).
this

action,

or

innocent

mistakes

do

not

violate

the

Fourth

Thus, if the Court applied the Georgia statute to
then

the

conduct

of

a

non-party,

which

may

be

tortious but not unconstitutional, could reduce damages that are
otherwise recoverable by Plaintiff for a federal constitutional
violation.

Moreover,

under

the

Georgia

statute,

the

damages

Plaintiff suffered because of a federal constitutional violation

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Case 4:15-cv-00034-CDL Document 143 Filed 09/18/17 Page 8 of 8

could be reduced even if Plaintiff has no right to recover against
the

partly

“at

fault”

non-party.

apportionment statute to this

Application

§ 1983 action

of

could

the

Georgia

result in a

person who is injured by a constitutional violation not being
fully compensated for the damages caused by the violation, and it
would

also

allow

the

person

who

committed

the

constitutional

violation to escape full responsibility for his unconstitutional
conduct.3

For

these

reasons,

the

Court

finds

that

Georgia’s

apportionment statute is not consistent with the policy goals of
§ 1983.

Accordingly, the Court concludes that O.C.G.A. § 51-12-33

does not apply to Plaintiff’s § 1983 claims.
CONCLUSION
For the reasons set forth above, O.C.G.A. § 51-12-33 does not
apply

to

Plaintiff’s

§ 1983

claims,

and

the

jury

will

not

be

instructed on apportionment.
IT IS SO ORDERED, this 18th day of September, 2017.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
3

Defendants argue that even if the Court does not apply the Georgia
apportionment statute as written to apportion liability between parties
and non-parties, the Court at a minimum should apply the statute to the
two existing Defendants and have the jury apportion fault as to these two
Defendants.
Aside from concerns related to applying the apportionment
statute in piecemeal fashion, the Court finds that well accepted joint
and several liability principles better address the issue in a manner
consistent with § 1983’s purposes. These principles authorize the jury
to hold each Defendant legally responsible only for the damages that his
constitutional violation separately causes, and if their unconstitutional
conduct joins together to cause an indivisible injury, then the jury is
authorized to hold both Defendants jointly responsible for the entire
indivisible injury to which their conduct substantially contributed.

8