WRIGHT v. WATSON et al

Filing 35

ORDER granting in part and denying in part Motions to Dismiss ( 17 , 19 , 21 , 22 ), finding as moot Motions to Stay ( 18 , 20 , 23 ). Ordered by US DISTRICT JUDGE CLAY D LAND on 08/13/2015. (CGC)

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

*

Plaintiff,

*

vs.

*

S/A JERALD WATSON, ASAC SGT.
ROBERT AUSTIN, S/A JON MEMMO,
CPL. JEREMY BOLEN, TFC MARK
BRACEWELL, TFC PAUL WOFFORD,
DEP. JOHN GOODRICH, CPL. MIKE
PITTS, S/A BERINOBIS, S/A DARYL
LASSITER, S/A JAMES BRADLEY
EVANS, DEP. ROGER CARROLL, S/A
LAUREN STINSON, and CAPT. SVEN
ARMBRUST, all in their
individual capacities,

*

Defendants.

*
CASE NO. 4:15-cv-34 (CDL)

*
*
*
*
*

O R D E R
Plaintiff Robert H. Wright, Jr. alleges that Defendants,
who are state or local law enforcement officers, conspired to
search his house even though they did not have probable cause.
Compounding this unlawful infringement on his rights, Wright was
subsequently arrested and prosecuted for drug crimes that he
alleges Defendants knew he did not commit.

Defendants’ pending

motions to dismiss present the question whether Defendants are
immune from liability for this alleged conduct.

For the reasons

set forth below, the Court denies Defendants’ motions to dismiss
(ECF

Nos.

17,

19,

21,

22)

as

to

Wright’s

Fourth

Amendment

unreasonable search and seizure claims against all Defendants,
Wright’s malicious prosecution claims against Defendant Watson,
and his state law claims against all Defendants except Bolen,
Bracewell, and Wofford.

Wright’s malicious prosecution claims

against all Defendants, except Watson, are dismissed; and as he
concedes is appropriate, his state law claims against Bolen,
Bracewell, and Wofford are dismissed.

Defendants’ motions to

stay discovery (ECF Nos. 18, 20, 23) are moot.
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
Wright
claims.

alleges

the

following

facts

in

support

of

his

The Court must accept these allegations as true for

purposes of the pending motion.
Defendants
Armbrust,
sheriffs

are

Carroll,
employed

law

enforcement

Goodrich,
by

Harris

officers.

Pitts,

and

County,

Defendants

Watson

Georgia.

are

deputy

Armbrust,

a

captain, and Pitts, a corporal, have supervisory authority over
the other Harris County deputies.

Defendants Austin, Berinobis,

Evans, Lassiter, Memmo, and Stinson are law enforcement officers
employed by the Columbus Consolidated Government and serve on
the

Metro

Narcotics

supervisory

Task

authority

Force.

over

the

Austin,
other

a

sergeant,

Columbus

has

officers.

Defendant Bolen is a law enforcement officer employed by the
Georgia
Bracewell

Department
and

of

Wofford

Natural
are

Georgia

Resources,
state

and

Defendants

troopers.1

Bolen,

Bracewell, and Wofford serve on the Governor’s Task Force for
Drug Suppression.

Goodrich and Pitts work with that Task Force.

On June 27, 2013, members of the Metro Narcotics Task Force
and the Governor’s Task Force for Drug Suppression conducted
aerial surveillance of property in Harris County looking for
marijuana crops.

Wofford and Bracewell conducted the aerial

1

In his Complaint, Wright incorrectly identified Defendant Bracewell
as Mark Bagwell.

3

surveillance in a helicopter, and Bolen, Goodrich, and Pitts
served

as

marijuana

their
crop

ground
on

team.

property

Wright’s wife, Lisa Wright.
by Wright or his wife.
Narcotics

Task

Force,

The

team

found

to

property

adjacent

a

sizeable
owned

by

The crop was not on property owned
After the team contacted the Metro

Austin,

Armbrust,

Berinobis,

Carroll,

Evans, Lassiter, Memmo, Stinson, and Watson responded to the
scene.
The officers determined that the Wrights’ house was the
closest residence to the marijuana crop.
but Mrs. Wright was.
search the house.

Wright was not home,

The officers asked her for permission to
She declined.

The officers on the scene,

including all Defendants, conferred and decided to seek a search
warrant, knowing that they needed to make a sufficient showing
of probable cause to convince a magistrate to issue the warrant.
The

officers

warrant

while

decided
the

that

other

Watson
officers

would

apply

remained

at

for

a

the

search

Wrights’

property.
Watson told the magistrate that the officers had found a
marijuana crop on land adjacent to the Wright property.
affidavit

for

the

warrant,

Watson

falsely

stated

In his

that

the

officers also saw several small marijuana plants growing on the
Wright property.

According to Wright, the officers did not see

any marijuana plants on the Wright property because there were

4

none—and

the

intentionally

officers
misled

knew
the

it.

Wright

magistrate

alleges

into

that

believing

Watson

that

the

officers saw marijuana plants on the Wright property so they
could manufacture probable cause to search the Wright property.
Wright further alleges that all the other officers who were on
the scene conferred with Watson on how to apply for the search
warrant despite having no probable cause for a search.

Relying

on the allegedly false affidavit, a Harris County magistrate
issued a search warrant authorizing the officers to search the
Wright property.
Watson

returned

to

the

scene

with

a

search

warrant.

Several of the Defendants, including Austin, Berinobis, Carroll,
Evans,

Lassiter,

property

while

detained

Mr.

marijuana

the

and

plants

Memmo,
other

Mrs.
or

Stinson,

and

Defendants

Wright.

Watson,
secured

Defendants

seedlings

on

the

the

did

Wright

searched

not

the

scene

and

find

any

property.

But

Defendants did find “small amounts of marijuana and remnants of
marijuana cigarettes among the personal effects of Mrs. Wright.”
Compl. ¶ 56, ECF No. 1.
Wright

for

felony

Defendants arrested both Mr. and Mrs.

manufacture

misdemeanor possession.

of

marijuana,

as

well

as

They also seized vehicles, firearms,

computers, and other items of personal property that belonged to
Wright, contending that these items were instrumentalities used
in the manufacture and sale of illegal drugs.

5

Watson swore out

arrest

warrants

marijuana
related

and

charging

misdemeanor

objects.

Id.

¶¶

Wright

with

possession
65-67.

felony
of

manufacture

marijuana

Watson

also

and

of

drug-

reported

the

seizure to the District Attorney, who filed a civil forfeiture
action against Wright.
pending,

Wright

was

While the civil forfeiture action was

deprived

of

possession

of

his

property

valued at $490,588.
As a result of his arrest, Wright lost his job.

The civil

forfeiture action and criminal charges against Wright remained
pending for more than a year until the Harris County District
Attorney moved the Superior Court to nolle pros them.

Several

months after the civil forfeiture action was dropped, Wright’s
personal property was returned to him.
Wright asserts Fourth Amendment claims against the officers
in their individual capacities under 42 U.S.C. § 1983 for: (1)
unreasonable search of his property, (2) unreasonable seizure of
person,

(3)

unreasonable

prosecution,

and

constitutional

(5)

rights.2

seizure

civil

of

property,

conspiracy

Wright

alleges

to

(4)

violate

that

all

malicious
Wright’s
Defendants

personally participated in the plan to manufacture evidence to
support

the

search

warrant.

Wright

2

also

alleges

state

law

The State Defendants and the Harris County Defendants mistakenly
construe Wright’s Complaint as alleging Fourth Amendment claims
against them in their official capacities, and thus they assert
Eleventh Amendment immunity. Since Wright only alleges claims against
Defendants in their individual capacities, the Eleventh Amendment does
not apply.

6

claims

for

conversion,

false

imprisonment,

unreasonable

search

malicious
and

seizure,

prosecution,
and

civil

conspiracy.3
DISCUSSION
Defendants attack Wright’s Complaint as an improper shotgun
pleading.

In the alternative, they maintain that it fails to

state a claim.
I.

Wright’s Complaint Is Not an Improper Shotgun Pleading
A

shotgun

pleading

is

a

pleading

that

violates

either

Federal Rule of Civil Procedure 8(a)(2) or Federal Rule of Civil
Procedure 10(b).

Weiland v. Palm Beach Cty. Sheriff’s Office,

No. 13-14396, 2015 WL 4098270, at *4 (11th Cir. July 8, 2015).
“Rule 8(a)(2) requires a complaint to include ‘a short and plain
statement of the claim showing that the pleader is entitled to
relief.’”

Id. (quoting Fed. R. Civ. P. 8(a)(2)).

Rule 10(b)

requires a party to state his claims “in numbered paragraphs,
each

limited

circumstances.”

as

far

as

practicable

Fed. R. Civ. P. 10(b).

to

a

single

set

of

And “each claim founded

on a separate transaction or occurrence . . . must be stated in
a separate count.”

Id.

The problem with shotgun pleadings “is that they fail to
one degree or another, and in one way or another, to give the
defendants adequate notice of the claims against them and the
3

Wright concedes that he may not pursue his state law claims against
Bolen, Bracewell, and Wofford, so those claims are dismissed.

7

grounds upon which each claim rests.”
at *5.

Weiland, 2015 WL 4098270,

It is true that Wright’s Complaint contains “multiple

counts where each count adopts the allegations of all preceding
counts, causing each successive count to carry all that came
before and the last count to be a combination of the entire
complaint.”
“this

is

parcel

Id.

not

out

materially

a

and

Perhaps he should not have done that.
situation

where

identify

the

increased

the

a

failure

facts

burden

of

allegations underlying each count.”

to

relevant

more
to

precisely

each

understanding

But

the

claim

factual

Id. at *6.

It is not difficult to understand what the Defendants “were
alleged to have done and why they were liable for doing it.”
Id.

Count

I

alleges

that

Defendants’

search

of

the

Wright

property violated the Fourth Amendment because Watson lied in
the affidavit supporting his search warrant application.

Count

I further alleges that all of the other Defendants, who were on
the

scene

with

Watson,

participated

in

the

decision

manufacture evidence to support probable cause to search.

to

Count

XI alleges a similar claim for unreasonable search under Art. I,
Sec. I, Par. XIII of the Georgia Constitution.4

4

Count II alleges

In a footnote of their brief, the Columbus Defendants question,
without citing any authority, whether Wright may bring claims directly
under the Georgia Constitution. It is clear that Wright may not bring
claims against state officers under the Georgia Constitution because
the Georgia Tort Claims Act provides the only avenue for suit against
state officers.
Davis v. Standifer, 275 Ga. App. 769, 772 n.2, 621
S.E.2d 852, 855 n.2 (2005) It is also true that Georgia does not have

8

that Defendants did not have probable cause to arrest Wright,
but they did it anyway or were present on the scene and did not
stop the other officers from unreasonably seizing Wright.

Count

VIII alleges a similar claim for state law false imprisonment,
and Count XI alleges a similar claim for unreasonable seizure
under

the

Georgia

Constitution.

Count

III

alleges

that

Defendants did not have probable cause to believe that Wright’s
personal items were instrumentalities used in the manufacture
and sale of illegal drugs, but they seized it anyway or were
present on the scene and did not stop the other officers from
unreasonably seizing the property.

Count X alleges a state law

conversion claim based on the same facts.
Watson

caused

a

felony

criminal

Count IV alleges that

prosecution

to

be

initiated

against Wright based on Defendants’ false statements.

Count IV

further alleges that all of the Defendants knew there was no
probable cause for the prosecution but allowed it to continue
anyway.

Count

IX

alleges

malicious prosecution.
collaborated
probable

on

cause

the
to

an

analogous

state

law

claim

for

Count V alleges that all the Defendants

idea

search

to
the

manufacture
Wright

evidence

property

and

to

support

that

they

a statute analogous to § 1983. Id. But the Georgia Supreme Court has
analyzed the merits of a claim under Art. I, Sec. I, Par. XIII of the
Georgia Constitution, implying that a plaintiff may bring a direct
action under that provision. See City of E. Point v. Smith, 258 Ga.
111, 112 & n.3, 365 S.E. 432, 434 & n.3 (1988).
As a practical
matter, Wright’s attempted claims under the Georgia Constitution are
virtually identical to his state law claims for false imprisonment,
malicious prosecution, and conversion.

9

participated
Count

XIII

in

accomplishing

alleges

an

the

analogous

allegedly
state

law

unlawful
claim

search.

for

civil

conspiracy, and Count XII alleges a similar claim based on a
state law joint venture theory.

Count VI alleges that Watson

applied for the search warrant based on a false affidavit, that
all the other Defendants knew he planned to do so but failed to
stop

him,

and

that

all

the

other

officers

knew

the

search

warrant was based on fabricated evidence but participated in the
search anyway.

Count VII alleges that Armbrust, Austin, and

Pitts had supervisory authority over other Defendants and were
present on the scene but did not stop their subordinates from
violating Wright’s Fourth Amendment rights.
In

sum,

the

Court

concludes

that

the

“counts

are

informative enough to permit a court to readily determine if
they state a claim upon which relief can be granted.”
2015 WL 4098270, at *7.

Weiland,

“A dismissal under Rules 8(a)(2) and

10(b) is appropriate where ‘it is virtually impossible to know
which allegations of fact are intended to support which claim(s)
for relief.’”

Id. (quoting Anderson v. Dist. Bd. of Trs. of

Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996)).
Here, it is not virtually impossible to know which allegations
of fact are intended to support which claims for relief.

The

Court thus declines to dismiss Wright’s Complaint under Rules
8(a)(2) and 10(b).

10

II.

Wright’s Complaint Does Not Fail to State a Claim
Defendants contend that Wright’s Complaint fails to state a

claim because even if his factual allegations are true, they are
entitled to qualified immunity on Wright’s federal claims and
official immunity on his state law claims.
A.

Wright Adequately Alleges Fourth Amendment Violations
1.

Wright

Unreasonable Search and Seizure Claims
alleges

that

Defendants

violated

his

Fourth

Amendment rights by searching his home pursuant to an arrest
warrant they obtained by manufacturing evidence.

Wright further

asserts that Defendants violated his Fourth Amendment rights by
arresting him for marijuana possession after Defendants found
small

amounts

of

marijuana

in

his

home

pursuant to the allegedly invalid warrant.

during

the

search

Defendants argue

that they are entitled to qualified immunity on these claims.
To

be

entitled

to

qualified

immunity

at

this

stage

of

the

litigation, Defendants must show that the Complaint, taken as
true, does not sufficiently allege that Defendants violated a
clearly established constitutional right.
610

F.3d

701,

715

(11th

Cir.

2010)

See Randall v. Scott,
(explaining

qualified

immunity analysis).
The Fourth Amendment protects “[t]he right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.”

11

U.S. Const. amend. IV.

“Generally, a search is reasonable under the Fourth Amendment
when supported by a warrant or when the search fits within an
established
States

exception

v.

Prevo,

to

435

the

warrant

F.3d

1343,

requirement.”

1345

(11th

United

Cir.

2006).

Defendants contend that the warrant was valid and do not argue
that

their

search

of

the

Wright

property

falls

within

an

exception to the warrant requirement, so the key question for
the Court is whether Wright adequately alleges that the warrant
was invalid.
Wright
facts

to

asserts
support

that

Defendants

probable

cause

intentionally

for

the

falsified

search

warrant.

Defendants do not dispute that “falsifying facts to establish
probable cause is patently unconstitutional.”
of Miami, 382 F.3d 1220, 1232 (11th Cir. 2004).

Kingsland v. City
Defendants also

do not dispute that a search warrant “may be voided if the
affidavit supporting the warrant contains deliberate falsity or
reckless disregard for the truth.”
1228, 1235 (11th Cir. 2002).
the

allegedly

fabricated

Dahl v. Holley, 312 F.3d

Defendants argue, however, that

facts

about

the

marijuana

were not necessary to a finding of probable cause.

seedlings

If a search

warrant contains “sufficient content to support a finding of
probable cause” without the falsified facts, then the warrant is
valid.

Id.

at

1235

(addressing

judgment stage).

12

the

issue

at

the

summary

“Probable cause to support a search warrant exists when the
totality of the circumstances allow a conclusion that there is a
fair

probability

particular

of

finding

location.”

United

1350, 1352 (11th Cir. 1999).

contraband
States

or

v.

evidence

Brundidge,

at

170

a

F.3d

Defendants contend that probable

cause existed to search the Wright property because officers saw
(1) bags of a single brand of potting soil, (2) similar wire dog
crates, and (3) Solo cups at both the Wright property and the
marijuana grow site.
Wrights

to

the

Defendants argue that these facts tie the

marijuana

grow

site

and

are

sufficient

to

establish probable cause for a warrant to search the Wright
property.
In support of their assertion that these items were at the
Wright property and the marijuana grow site, Defendants rely on
Watson’s

affidavit,

information.

which

Wright

alleges

contains

falsified

Defendants contend that the Court should consider

the affidavit, which is a matter outside the pleadings, without
converting

the

motions

to

dismiss

to

motions

for

summary

judgment because the affidavit is central to Wright’s claims.
“It

is

true

incorporated

that
in

documents

the

complaint

attached
by

to

reference

a
can

complaint
generally

or
be

considered by a federal court in ruling on a motion to dismiss
under Rule 12(b)(6).”
(11th

Cir.

2014).

Saunders v. Duke, 766 F.3d 1262, 1270
But

Wright’s

13

claims

are

based

on

his

allegation that the affidavit contains falsified information.
Wright did not make any allegations about the potting soil, dog
crates,

or

Solo

cups

in

his

Complaint,

and

Wright

did

not

acknowledge in his Complaint or otherwise that the potting soil,
dog crates, and Solo cups were present at both locations.

The

Court certainly cannot consider the contents of the affidavit as
true in ruling on the motion to dismiss.

See id. (“Where a

civil rights plaintiff attaches a police report to his complaint
and alleges that it is false, . . . the contents of the report
cannot be considered as true for purposes of ruling on a motion
to dismiss.”).
Even

if

the

Court

did

consider

the

contents

of

the

affidavit as true, it is doubtful that the presence of common
items

like

locations

potting
supports

soil,
a

dog

finding

crates,
of

and

probable

Solo

cups

cause.

at

both

Plenty

of

homeowners in Middle Georgia purchase potting soil for innocent
purposes every day; those who have or have had dogs often use
wire crates; and the Solo cup is so ubiquitous that it is the
subject of a popular country music song.5

Defendants do not

contend that there was anything special or unique about these
ordinary, innocuous items such that the presence of the items at
both

locations

“allow

a

conclusion

5

that

there

is

a

fair

Toby Keith, Red Solo Cup, on Clancy’s Tavern (Show Dog-Universal
Music 2011).

14

probability of finding contraband or evidence at” the Wright
property.

Brundidge, 170 F.3d at 1352.

And, if the allegations

in Wright’s Complaint are taken as true (as the Court must do at
the

motion

to

dismiss

stage),

Defendants

themselves

did

not

believe that what they saw at the Wright property gave rise to
probable cause because they thought they had to strengthen their
allegations by lying about seeing marijuana seedlings.
For

all

of

these

reasons,

the

Court

finds

that

Wright

sufficiently alleged that Watson’s false statement regarding the
marijuana plants was necessary to a finding of probable cause.
And since the law is clearly established that “falsifying facts
to

establish

probable

cause

is

patently

unconstitutional,”

Kingsland, 382 F.3d at 1232, Watson is not entitled to qualified
immunity
search,

on

Wright’s

Wright’s

Fourth

arrest

Amendment

based

on

claims

evidence

based

found

on

the

during

the

search, or the seizure of Wright’s personal property based on
evidence found during the search.

If the search warrant was

invalid, then the officers had no lawful basis for searching the
Wright property.6

Without a lawful search, the officers would

6

The Court notes that if Wright does not ultimately present enough
evidence for a jury to conclude that Watson lied about spotting the
marijuana seedlings on the Wright property, then the search warrant is
valid, so Defendants would be entitled to qualified immunity with
regard to the arrest and the property seizure.
It is a crime to
possess any amount of marijuana in Georgia.
O.C.G.A. § 16-13-2(b)
(making it a misdemeanor to possess one ounce or less of marijuana);
O.C.G.A. § 16-13-30(j) (making it a felony to possess more than one
ounce
of
marijuana).
“Possession
may
be
either
actual
or

15

not have found the small amount of marijuana in the house, and
they would not have had probable cause to arrest Wright for
marijuana possession or to seize his belongings.
The next question is whether Wright sufficiently alleged
that the remaining Defendants violated clearly established law.
“Conspiring to violate another person’s constitutional rights
violates section 1983.”
F.3d

1271,

1283

(11th

Rowe v. City of Fort Lauderdale, 279
Cir.

2002).

Wright

Defendants were on the scene together.

alleges

that

all

He further alleges that

all Defendants conferred with each other and decided to seek a
search warrant, knowing “that they needed to make a sufficient
showing of probable cause to convince a magistrate to issue the
warrant.”

Compl.

Defendants

gathered

¶

35.
on

In
the

sum,

scene

Wright
and

alleges

that

all

in

the

participated

decision to manufacture evidence to support a search warrant
even though they knew they did not have probable cause to search
the

Wrights’

participated

home.
in

And

searching

he
his

asserts
home,

that

all

arresting

Defendants
him,

and/or

seizing his belongings even though they knew the search warrant
constructive.
Constructive possession exists where a person though
not in actual possession, knowingly has both the power and the
intention at a given time to exercise dominion or control over a
thing.” Bailey v. State, 294 Ga. App. 437, 439, 669 S.E.2d 453, 456
(2008). A person’s ownership or control of the premises gives “rise
to a rebuttable presumption that the [person] possessed the contraband
found on the premises.” Id. at 440, 669 S.E.2d at 456. Wright admits
that he lived at the Wright property, which could reasonably be
construed as an admission that he controlled the premises and thus had
constructive possession of the marijuana Defendants found there.

16

was

invalid.

Defendants

Thus,

Wright

communicated

sufficiently

with

each

alleges

other

and

that

all

“reached

understanding to violate” his Fourth Amendment rights.
279 F.3d at 1283.
each

Defendant’s

an

Rowe,

Wright must ultimately produce evidence of
role

in

the

alleged

conspiracy,

but

“Rule

12(b)(6) does not permit dismissal of a well-pleaded complaint
simply because ‘it strikes a savvy judge that actual proof of
those facts is improbable.’”

Watts, 495 F.3d at 1295 (quoting

Twombly, 550 U.S. at 556).
2.

Malicious Prosecution Claims

In addition to his unreasonable search and seizure claims,
Wright

asserts

Defendants.

The

malicious
Eleventh

prosecution
Circuit

claims

“has

against

identified

all

malicious

prosecution as a violation of the Fourth Amendment and a viable
constitutional tort cognizable under § 1983.”
323 F.3d 872, 881 (11th Cir. 2003).

Wood v. Kesler,

“To establish a federal

malicious prosecution claim under § 1983, the plaintiff must
prove a violation of his Fourth Amendment right to be free from
unreasonable seizures in addition to the elements of the common
law tort of malicious prosecution.”
“(1)

a

criminal

prosecution

Id.

instituted

Those elements include
or

continued

by

the

present defendant; (2) with malice and without probable cause;
(3)

that

terminated

in

the

plaintiff

accused’s

(4) caused damage to the plaintiff accused.”

17

favor;

Id. at 882.

and

Wright contends that after the allegedly unlawful search
revealed a small amount of marijuana in his house, Watson swore
out an arrest warrant charging Wright with several marijuanarelated offenses and made a report to support a civil forfeiture
action.

Wright contends that Watson took these actions even

though he knew the search that revealed the small amount of
marijuana was illegal and that such evidence would thus not be
admissible in a criminal proceeding against Wright.
asserts

that

actions.

he

suffered

damages

as

a

result

Wright also
of

Watson’s

Wright did not, however, allege facts from which it

can be reasonably inferred that any other Defendant participated
in instituting or continuing the prosecution.7

Therefore, to the

extent Wright makes § 1983 or state law malicious prosecution
claims against Defendants other than Watson, those claims are
dismissed.
Watson

argues

that

he

cannot

be

liable

for

malicious

prosecution because the independent decisions of the prosecutors
broke the chain of causation.
Watson

relies

on

does

not

But the “intervening acts” rule

break

the

chain

of

causation

if

“plaintiff can show that these intervening acts were the result
of

deception

or

undue

pressure

7

by

the

defendant

policemen.”

Wright alleged that all Defendants conferred regarding the search
warrant and either helped with the search, the arrest, or the seizure
of his belongings even though they knew the search warrant was
invalid.
He did not make any similar allegations with regard to
Watson’s decision to swear out arrest warrants.

18

Barts v. Joyner, 865 F.2d 1187, 1195 (11th Cir. 1989) (emphasis
added).

Here, Wright alleges that any actions taken by the

prosecutor were based on false statements by Watson and other
Defendants.
Watson

also

fleetingly

suggests

that

there

was

prosecution to support a malicious prosecution claim.

no

Wright

alleges that Watson swore out a warrant against him and that
criminal charges were pending against him in the Harris County
Superior Court until the prosecutor decided not to pursue them.
Drawing

all

reasonable

inferences

in

Wright’s

favor,

Wright

sufficiently alleged a prosecution that terminated in his favor.
See Skop v. City of Atlanta, 485 F.3d 1130, 1144-45 (11th Cir.
2007) (finding a viable malicious prosecution claim against an
officer who brought false charges against the plaintiff).
B.

Wright’s State Law Claims Are Not Barred

Defendants contend that all of Wright’s state law claims
against them are barred by official immunity.8
official

immunity

‘protects

individual

“The doctrine of

public

agents

from

personal liability for discretionary actions taken within the
scope of their official authority, and done without wilfulness,
malice, or corruption.’”

Lagroon v. Lawson, 328 Ga. App. 614,

618, 759 S.E.2d 878, 882 (2014) (quoting McDowell v. Smith, 285

8

Again, Wright concedes that he may not pursue his state law claims
against Bolen, Bracewell, and Wofford, so those claims are dismissed.

19

Ga. 592, 593, 678 S.E.2d 922, 924 (2009)).

It is undisputed

that the challenged actions in this case are discretionary, so
Defendants

“are

immune

from

wilfulness or actual malice.”
“Actual

malice

requires

a

suit

unless

they

acted

with

Id. at 619, 759 S.E.2d at 882.
showing

that

the

actor

had

a

deliberate intention to do wrong,” and “wilful conduct is based
on an actual intention to do harm or inflict injury.”

Id.

Here, Wright alleges that Defendants knew they did not have
probable cause to search the Wright property but colluded with
each

other

warrant.

to

manufacture

evidence

to

support

the

search

These allegations support an inference that Defendants

acted with actual malice.

Cf. Bateast v. DeKalb Cty., 258 Ga.

App. 131, 132-33, 572 S.E.2d 756, 758 (2002) (finding genuine
fact dispute on official immunity because jury could infer that
officers

arrested

commit any crimes).

the

plaintiff

despite

knowing

she

did

not

Accordingly, Defendants are not entitled to

official immunity at this stage in the litigation.
CONCLUSION
For

the

reasons

set

forth

above,

the

Court

denies

Defendants’ motions to dismiss (ECF Nos. 17, 19, 21, 22) as to
Wright’s Fourth Amendment unreasonable search and seizure claims
against all Defendants, Wright’s malicious prosecution claims
against Defendant Watson, and his state law claims against all
Defendants

except

Bolen,

Bracewell,

20

and

Wofford.

Wright’s

Complaint does not state a malicious prosecution claim against
any Defendant except Watson, so his malicious prosecution claims
against the other Defendants are dismissed.

Wright concedes

that his state law claims against Bolen, Bracewell, and Wofford
should be dismissed, so they are dismissed.

Defendants’ motions

to stay discovery (ECF Nos. 18, 20, 23) are moot.

IT IS SO ORDERED, this 13th day of August, 2015.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

21