BRYANT v. HARRIS COUNTY GEORGIA et al

Filing 22

ORDER granting in part and denying in part 5 Motion to Dismiss Complaint; granting 6 Motion to Dismiss Complaint; granting in part and denying in part 8 Motion to Dismiss Ordered by US DISTRICT JUDGE CLAY D LAND on 10/26/2018 (CCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
JOANN BRYANT,

*

Plaintiff,

*

vs.

*

CASE NO. 4:18-CV-106 (CDL)

HARRIS COUNTY, GEORGIA, et al., *
Defendants.

*

O R D E R
Larry Wayne Burden, Jr. was an inmate at the Harris County
Prison.

On November 5, 2015, Burden collapsed while playing

basketball in the prison yard.

His mother, who brings this

action for his wrongful death, alleges that Burden collapsed
because he had been “struck and severely beaten by a guard”
earlier in the day.

Am. Compl. ¶ 28, ECF No. 1-41.

She further

alleges that the corrections officers did not provide prompt aid
to Burden after they learned he collapsed.

Prison staff members

ultimately attempted CPR and called emergency medical personnel
to take Burden to the hospital, but Burden was pronounced dead
on

arrival

at

the

hospital.

Plaintiff

asserts

her

claims

pursuant to 42 U.S.C. § 1983, alleging that Defendants deprived
Burden of his rights guaranteed by the Eighth and Fourteenth
Amendments to the U.S. Constitution.
state law claims.

She also asserts various

Presently pending before the Court are Defendants’ motions
to

dismiss.

County

The

Corrections

collectively

filed

a

Officer

motion

to

Defendants
dismiss

and

(ECF

Harris
No.

5).

That motion is granted as to Harris County but denied as to the
corrections officers.

The warden of the prison, Alex Haden, and

the Georgia Department of Corrections filed separate motions to
dismiss.

Haden’s motion (ECF No. 6) is granted.

(ECF

8)

No.

is

granted

as

to

Plaintiff’s

GDOC’s motion

§ 1983

claims

but

denied as to Plaintiff’s state law claims based on the alleged
delay in providing medical care.
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.

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.’”

2

Watts

v.

Fla.

Int’l

Univ., 495 F.3d 1289, 1295 (11th Cir. 2007) (quoting Twombly,
550 U.S. at 556).
FACTUAL ALLEGATIONS
Plaintiff alleges the following facts in support of her
claims.

The Court must accept these allegations as true for

purposes of the pending motions.
Burden was an inmate at the Harris County Prison, which was
under the supervision and control of the Georgia Department of
Corrections (“GDOC”).

Am. Compl. ¶ 26.

On November 5, 2015,

Burden was “struck and severely beaten” by a “guard on duty that
day” who “goes by the nickname ‘McGoo’ or something similar.”
Id.

¶¶ 28,

46.

The

beating

was

“intentional,

willful

and

malicious,” and it ultimately caused Burden to collapse and die
while playing basketball a short time later.

Id. ¶¶ 28-29.

The

corrections officers on duty that day were Defendants Crystal
Gail Garren, Daniel Levar Maddox, Donald E. Walker, Jeremy Brian
McDowell, Noel Matthews Flowers, Troy Allan Moore, and Donald
Barber (“Corrections Officer Defendants”).

Id. ¶ 27.

According

to the Complaint, one of these Corrections Officer Defendants
beat Burden, using “force that was clearly excessive and was
objectively unreasonable.”

Id. ¶ 109; accord id. ¶¶ 45, 48.

The “beating was in direct violation of prison policy and was
intentional, willful and malicious, with the specific intent to
harm”

Burden.

Id.

¶ 28.

The

3

other

Corrections

Officer

Defendants, by their acts or omissions, permitted the guard to
attack Burden.

Id. ¶ 46.

Although Burden had a black eye and lacerations on his face
and

hands

after

the

beating,

basketball in the prison yard.
collapsed.

he

nevertheless

went

to

play

While playing basketball, Burden

Corrections officers, including Defendants Barber

and Moore who were in the control room, did not respond until
sometime after other inmates “began banging on the yard window.”
Id.

¶ 31.

Defendants

Maddox,

McDowell,

responded “after an unreasonable delay.”

Flowers,
Id. ¶ 34.

and

Garren

Burden was

eventually taken to a hospital, where he was pronounced dead on
arrival.

At Burden’s funeral, several inmates told his mother

“that her son was killed by a prison guard.”

Id. ¶ 48.

DISCUSSION
Plaintiff asserts the following claims:
(1)

Counts I, II, and III: individual capacity and
official capacity claims against Haden and the
Corrections
Officer
Defendants
for
“negligent
performance of ministerial acts” and “malicious and/or
intentionally harmful misconduct” based on the alleged
excessive force used against Burden and the alleged
failure to provide timely medical care to Burden.1

(2)

Counts IV and V: claims for negligence and wrongful
death against GDOC based on the alleged excessive
force used against Burden and the alleged failure to
provide timely medical care to Burden.

1

Plaintiff alleges that these Defendants were negligent in six
different ways or engaged in six types of misconduct, but they boil
down to (1) using or allowing the use of excessive force against
Burden and (2) failing to provide timely medical care to Burden.

4

(3)

Count VI: claim for wrongful death against Harris
County based on the alleged excessive force used
against Burden and the alleged failure to provide
timely medical care to Burden.

(4)

Count VII: claim for negligent hiring and retention
against GDOC or, in the alternative, against Harris
County.

(5)

Count VIII: 42 U.S.C. § 1983 claims against all
Defendants based on the alleged excessive force used
against Burden and the alleged failure to provide
timely medical care to Burden.

Defendants seek dismissal of all of Plaintiff’s claims.
The Court will analyze Plaintiff’s claims in the following
order:

(1) Plaintiff’s individual capacity claims against the

Corrections

Officer

Defendants;

(2)

Plaintiff’s

individual

capacity claims against Haden; (3) Plaintiff’s claims against
Harris

County,

including

her

§ 1983

official

capacity

claims

against the Corrections Officer Defendants and Haden, which are
considered
Kentucky

claims
v.

against

Graham,

473

their
U.S.

employer,
159,

Harris

165

County,

(1985);

and

see
(4)

Plaintiff’s claims against GDOC, including her § 1983 official
capacity claims against the Corrections Officer Defendants and
Haden to the extent those claims should be considered claims
against GDOC.
I.

Individual
Defendants
The

entitled

Capacity

Corrections
to

“Qualified

Officer

qualified
immunity

Claims

Defendants

immunity

protects

Against

on

assert

Plaintiff’s

government
5

Corrections
that

they

§ 1983

officials

Officer
are

claims.

performing

discretionary
capacities

functions

unless

from

their

suits

conduct

in

their
clearly

violates

individual
established

statutory or constitutional rights of which a reasonable person
would have known.”

Gates v. Khokhar, 884 F.3d 1290, 1296 (11th

Cir. 2018) (quoting Dalrymple v. Reno, 334 F.3d 991, 994 (11th
Cir.

2003)).

“protects

When

‘all

but

properly
the

plainly

knowingly violate the law.’”
563 U.S. 731, 743 (2011)).
“state

a

claim

of

applied,

qualified

incompetent

or

immunity
those

who

Id. (quoting Ashcroft v. al-Kidd,
If a plaintiff’s allegations do not

violation

of

clearly

established

law,

a

defendant pleading qualified immunity is entitled to dismissal
before the commencement of discovery.” Cottone v. Jenne, 326
F.3d 1352, 1357 (11th Cir. 2003) (quoting Marsh v. Butler Cty.,
268 F.3d 1014, 1022 (11th Cir. 2001) (en banc)), abrogated on
other grounds by Randall v. Scott, 610 F.3d 701, 709-10 (11th
Cir.

2010)

standard

in

(rejecting
§ 1983

application

cases).

In

of

a

heightened

deciding

whether

pleading
to

grant

qualified immunity on a motion to dismiss, the Court must accept
“the factual allegations in the complaint as true and draw[] all
reasonable

inferences

in

the

plaintiff’s

favor.”

Davis

v.

Carter, 555 F.3d 979, 981 (11th Cir. 2009) (quoting Dalrymple,
334 F.3d at 994).
“A defendant who asserts qualified immunity has the initial
burden

of

showing

he

was

acting

6

within

the

scope

of

his

discretionary

authority

when

unconstitutional action.”
defendant

makes

plaintiff

to

this

he

took

the

allegedly

Gates, 884 F.3d at 1297.

showing,

establish

“the

that

burden

qualified

shifts

immunity

If the
to

the

is

not

appropriate by showing that (1) the facts alleged make out a
violation of a constitutional right and (2) the constitutional
right

at

issue

was

alleged misconduct.”
A.

clearly

established

at

the

time

of

the

Id.

Were the Corrections Officer
Discretionary Functions?

Defendants

Engaged

in

In this case, Plaintiff contends that one or more of the
Corrections Officer Defendants, acting under color of state law,
(1) used excessive force on an inmate and (2) failed to seek
timely

medical

attention

for

an

inmate

with

an

obvious

and

serious medical need.

Plaintiff argues that at this pleading

stage

should

these

functions

discretionary.

be

considered

ministerial,

not

But the Eleventh Circuit has noted that “for

purposes of qualified immunity, a governmental actor engaged in
purely ministerial activities can nevertheless be performing a
discretionary function.”

Holloman ex rel. Holloman v. Harland,

370 F.3d 1252, 1265 (11th Cir. 2004).
“Instead
involved
“assess

the

of

focusing

exercise

whether

they

of
are

on

whether

actual
of

a

7

the

acts

discretion,”
type

that

the
fell

in

question

Court
within

must
the

employee’s job responsibilities.”
the

Court

asks

“whether

Id.

the

To make this assessment,

government

employee

was

(a)

performing a legitimate job-related function (that is, pursuing
a job-related goal), (b) through means that were within his
power to utilize.”

Id.

The Court must “look to the general

nature of the defendant’s action, temporarily putting aside the
fact that it may have been committed for an unconstitutional
purpose, in an unconstitutional manner, to an unconstitutional
extent, or under constitutionally inappropriate circumstances.”
Id. at 1266 (noting that in considering whether a police officer
may assert qualified immunity against a Fourth Amendment claim,
the court does “not ask whether he has the right to engage in
unconstitutional searches and seizures, but whether engaging in
searches and seizures in general is a part of his job-related
powers and responsibilities”).
first

step

of

the

“Put another way, to pass the

discretionary

function

test

for

qualified

immunity, the defendant must have been performing a function
that, but for the alleged constitutional infirmity, would have
fallen with his legitimate job description.”

Id.

If the official was “engaged in a legitimate job-related
function,” then the Court must determine whether he executed
that

function

purpose

of

in

the

an

authorized

qualified

manner.

immunity

Id.

doctrine

“The
is

to

primary
allow

government employees to enjoy a degree of protection only when

8

exercising powers that legitimately form a part of their jobs.”
Id. at 1266-67 (concluding that a principal acted within his
discretionary authority when he paddled a student to enforce
discipline); cf. Estate of Cummings v. Davenport, No. 17-13999,
2018 WL 4705723, at *4 (11th Cir. Oct. 2, 2018) (finding that a
prison

warden

does

not

have

authority

“to

enter

a

do-not-

resuscitate order or to order the withdrawal of artificial life
support on behalf of a dying inmate”).

If the challenged action

was within the scope of the official’s authority, then this
prong of the discretionary function test is met.
Under
were

this

engaged

challenged
deciding

standard,

in

to

legitimate

job

challenged

actions

scope

the

of

Corrections

discretionary

actions
when

the

in

this

seek

functions

case.

medical

functions

of

alleged

corrections

a

in

Officer
when

corrections
the

they

Supervising
attention

Complaint

officers’

Defendants

for

took

the

inmates

and

inmates

are

officer,
were

authority.

and

the

within

the

Likewise,

corrections officers are permitted to use force against inmates
under certain circumstances, such as to maintain and restore
order in the prison.
that

the

Corrections

For these reasons, the Court concludes
Officer

Defendants

were

engaged

discretionary functions when they took the challenged actions.

9

in

B.

Did Plaintiff Allege that the Corrections
Defendants Violated Clearly Established Law?

Officer

The next question is whether Plaintiff sufficiently alleged
that

the

Corrections

Officer

Defendants

violated

clearly

established law.
1.

Plaintiff’s Excessive Force Claim

Plaintiff

alleges

that

one

of

the

Corrections

Officer

Defendants severely beat Burden, that the force was objectively
unreasonable under the circumstances, and that Burden ultimately
died

from

the

Defendant.

injuries

inflicted

by

the

Corrections

Officer

It was clearly established by November 2015 that the

Eighth Amendment’s ban on cruel and unusual punishment prohibits
use

of

force

that

infliction of pain.”2

amounts

to

an

“unnecessary

and

wanton

Hudson v. McMillian, 503 U.S. 1, 7 (1992)

(quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)).

While a

prison guard may use force against an inmate “in a good faith
effort to maintain or restore discipline,” he may not use force
“maliciously

and

sadistically

to

cause

harm.”

Skrtich

v.

Thornton, 280 F.3d 1295, 1300 (11th Cir. 2002) (quoting Whitley,
2

The Complaint invokes the Eighth Amendment and does not allege that
Burden was a pretrial detainee who was held at the Harris County
Prison. The Court assumes that he was a convicted prisoner and that
the Eighth Amendment applies. Even if Burden was a pretrial detainee
and claims involving his treatment are governed by the Fourteenth
Amendment’s Due Process Clause instead of the Eighth Amendment’s Cruel
and Unusual Punishment Clause, it was still clearly established by
November 2015 that a jailer could not use objectively unreasonable
force against a pretrial detainee—much less use force that amounts to
an unnecessary and wanton infliction of pain.
See Kingsley v.
Hendrickson, 135 S. Ct. 2466, 2472–73 (2015).

10

475 U.S. at 320–21)).

Qualified immunity is not appropriate if,

viewing the facts in the light most favorable to the plaintiff,
no reasonable officer could plausibly have concluded that the
force used was permissible under the circumstances.

Id.

at

1300-01.
Plaintiff did not allege the circumstances surrounding her
son’s beating with much specificity.

Other than the allegation

that

allegations

Burden

was

beaten,

Plaintiff’s

are

arguably

limited to legal conclusions as opposed to factual allegations.
Ideally,

the

Court

must

examine

factual

allegations

and

determine whether those allegations, which are assumed to be
true, establish a violation of clearly established law.

In the

excessive force context, which is inherently fact-intensive, the
Court must determine whether the alleged facts establish that
the

force

used

had

no

legitimate

penological

purpose.

Plaintiff’s allegations in this regard are purely conclusory.
She

did

not

beating.
son

is

even

identify

the

Here is the dilemma:
dead

and

cannot

officer

who

administered

the

Plaintiff was not present; her

tell

her

what

happened;

and

the

Corrections Officer Defendants have no incentive to volunteer
what actually happened.

Although qualified immunity is designed

to protect government officials from the burden of discovery,
this

case

decision

presents

should

be

a

situation

deferred

where

until

11

the

qualified

Plaintiff

is

immunity

permitted

to

engage in limited discovery to learn what happened.

After that

discovery is completed, the Corrections Officer Defendants may
renew

their

qualified

immunity

defenses

at

summary

judgment.

The parties shall present the Court with a scheduling order that
allows this limited discovery to be completed and an appropriate
summary judgment motion filed.
The

Court

recognizes

that

the

Eleventh

Circuit

has

disapproved of deferring qualified immunity decisions pending
discovery given that “immunity is a right not to be subjected to
litigation

beyond

the

point

at

which

immunity

is

asserted.”

Howe v. City of Enterprise, 861 F.3d 1300, 1302 (11th Cir. 2017)
(per curiam) (vacating district court’s order for the parties to
confer on a Rule 26(f) report prior to a ruling on the qualified
immunity defense).
was

present

when

In Howe, unlike in this case, the plaintiff
the

officers

engaged

in

allegedly

unconstitutional conduct, and his complaint contained extensive
details

about

generally

Howe

the
v.

events
City

of

giving

rise

Enterprise,

to

his

Am.

2015), ECF No. 18 in M.D. Ala. 1:15-cv-113.

action.

Compl.

(Apr.

See
21,

Here, Plaintiff’s

“access to information has been limited,” and she alleges, “in
good faith, upon information and belief,” that a corrections
officer beat her son so severely that he died.
28.

These

allegations

raise

a

reasonable

Am. Compl. ¶¶ 4,
expectation

that

limited discovery will reveal evidence of (1) which, if any,

12

Corrections Officer Defendant beat Burden; (2) the circumstances
surrounding

the

beating;

and

(3)

which,

Officer Defendant witnessed the beating.

if

any,

Corrections

The qualified immunity

decision in this case is deferred until Plaintiff can obtain
this information.
For the same reasons, the Court defers ruling on whether
the

Corrections

Officer

Defendants

are

entitled

to

official

immunity on any state law claims arising out of the alleged use
of excessive force against Burden.

See Grammens v. Dollar, 697

S.E.2d 775, 777 (Ga. 2010) (explaining that a public officer
“may be personally liable only for ministerial acts negligently
performed or acts performed with malice or an intent to injure”
(quoting Cameron v. Lang, 549 S.E.2d 341, 344 (Ga. 2001)).3
2.

Plaintiff’s Serious Medical Need Claim

Plaintiff alleges that the Corrections Officer Defendants’
were deliberately indifferent to Burden’s serious medical need
and that he died as a result.

It was clearly established by

2015 that a prison guard violates the Eighth Amendment if he is
deliberately

indifferent

to

the

serious

medical

needs

of

a

prisoner by “intentionally denying or delaying access to medical
care.”

Estelle v. Gamble, 429 U.S. 97, 104-05 (1976).

3

To prove

Plaintiff’s Amended Complaint summarily alleges that one or more of
the remaining Corrections Officer Defendants was in a position to
intervene in his colleague’s use of force against Burden but failed to
do so, in violation of clearly established law. The Court finds that
a decision on qualified immunity regarding these claims should also be
deferred until limited discovery can be conducted.

13

such a claim, the plaintiff must first show that the prisoner
had an objectively serious medical need—“one that is so obvious
that even a lay person would easily recognize the necessity for
a doctor’s attention.” Goebert v. Lee Cty., 510 F.3d 1312, 1326
(11th Cir. 2007) (quoting Hill v. Dekalb Reg’l Youth Det. Ctr.,
40 F.3d 1176, 1187 (11th Cir. 1994)).

Next, the plaintiff must

show that the defendant had a subjective knowledge of a risk of
serious harm but disregarded that risk by conduct that is more
than gross negligence.

Id. at 1327.

Finally, there must be a

causal connection between the deliberate indifference and the
prisoner’s injury.
Here,
Defendants

Id.

Plaintiff
were

asserts

deliberately

that

the

indifferent

Corrections

Officer

to

serious

Burden’s

medical need because they knew that Burden collapsed on the
basketball court but did not seek timely medical treatment for
him.

Plaintiff further alleges, in conclusory fashion, that

Burden died because the Corrections Officer Defendants did not
seek

timely

medical

treatment

for

Burden.

The

Corrections

Officer Defendants do not appear to dispute that Burden had an
objectively
basketball

serious
court.

medical
The

need

when

question

he

collapsed

whether

an

on

the

officer

was

deliberately indifferent to a serious medical need is, like the
question

whether

fact-specific.

an

officer

Plaintiff

used

excessive

generally

14

force,

alleges

that

inherently
once

the

Corrections

Officer

Defendants

became

aware

that

Burden

had

collapsed, they either did nothing or they waited to respond.
These allegations raise a reasonable expectation that limited
discovery will reveal evidence of (1) which, if any, Corrections
Officer Defendants knew that Burden had a serious medical need
and (2) how each Corrections Officer Defendant responded after
learning of Burden’s serious medical need.
Plaintiff’s

excessive

force

claims,

the

Therefore, as with
Court

finds

that

it

should defer ruling on the qualified immunity issue until after
Plaintiff

has

a

chance

discover what happened.
Corrections
immunity
present

Officer

defenses
the

Court

at

to

engage

in

limited

discovery

to

After that discovery is completed, the

Defendants
summary

with

a

may

renew

judgment.

scheduling

their

The

order

qualified

parties

that

allows

shall
this

limited discovery to be completed and an appropriate summary
judgment motion filed.
II.

Claims Against Warden Alex Haden
Plaintiff brought official capacity and individual capacity

§ 1983 claims against Defendant Alex Haden, who was the warden
of

Harris

County

Prison

on

November

5,

2015.

The

official

capacity claims against Haden are considered claims against his
employer, Harris County.

Graham, 473 U.S. at 165.

Plaintiff’s

claims against Harris County are discussed in Section III below.
Plaintiff also alleges that Haden is an agent of GDOC, a Georgia

15

agency.

To

the

extent

Plaintiff’s

official

capacity

claims

against Haden should be considered claims against GDOC based on
this allegation, Plaintiff’s claims against GDOC are addressed
in

Section

IV.

In

this

section,

the

Court

focuses

on

Plaintiff’s individual capacity claims against Haden.
Supervisory

officials

like

Haden

“are

not

liable

under

§ 1983 for the unconstitutional acts of their subordinates on
the

basis

of

respondeat

superior

or

vicarious

liability.”

Cottone, 326 F.3d at 1360 (quoting Hartley v. Parnell, 193 F.3d
1263, 1269 (11th Cir. 1999)).
under

§ 1983

participates
there

is

a

supervising
deprivation.”
established

occurs
in

the

either
alleged

causal

when

Id.

the

supervisor

unconstitutional

connection

official

‘when

“Instead, supervisory liability

and

between
the

personally

conduct

the

or

actions

alleged

when
of

a

constitutional

“The necessary causal connection can be
a

history

of

widespread

abuse

puts

the

responsible supervisor on notice of the need to correct the
alleged deprivation, and he fails to do so.’”
Gonzalez

v.

Reno,

325

F.3d

1228,

1234

(11th

Id. (quoting
Cir.

2003)).

“Alternatively, the causal connection may be established when a
supervisor’s

‘custom

or

policy

. . .

result[s]

in

deliberate

indifference to constitutional rights’ or when facts support ‘an
inference that the supervisor directed the subordinates to act
unlawfully or knew that the subordinates would act unlawfully

16

and failed to stop them from doing so.’” Id. (quoting Gonzalez,
325 F.3d at 1234-35) (alterations in original).
Plaintiff’s § 1983 claims against Haden are based on the
alleged

excessive

force

used

against

Burden

and

the

failure to provide timely medical care to Burden.

alleged

Plaintiff

does not allege any facts to suggest that Haden, the prison
warden,

was

personally

involved

in

the

beating

of

Burden.

Rather, she alleges that a “guard on duty” beat Burden. Am.
Compl. ¶ 28.

And, Plaintiff does not allege facts to suggest

that Haden was personally involved in the failure to provide
Burden

medical

Barber

and

respond

and

care.

Moore
that

knew

Instead,
that

Defendants

she

Burden

alleges

that

collapsed

Maddox,

but

McDowell,

Defendants
failed

Garren,

to
and

Flowers knew that Burden collapsed but waited an unreasonable
amount of time before responding.

Id. ¶¶ 31, 34.4

Plaintiff also does not assert that the Corrections Officer
Defendants used excessive force against Burden or unreasonably
delayed his medical treatment pursuant to an official Harris

4

In several paragraphs summarizing the basis for Plaintiff’s claims,
Plaintiff’s Amended Complaint lumps Haden in with the Corrections
Officer Defendants and makes several general allegations against all
of these Defendants together. Am. Compl. ¶¶ 46-47. But these general
allegations do not add to the facts set forth in the specific
allegations about who was involved in the incidents giving rise to
this action, and they do not plead alternative facts. To the extent
that Plaintiff asserts that her general allegations lumping Haden in
with the other Defendants are enough to establish that Haden was
personally involved in the beating of Burden or in the response to his
collapse, the Court rejects that argument.

17

County

Prison

policy.

correctional

officers’

violation

of

prison

Plaintiff

does

Corrections

In

fact,

challenged

policy.”

not

allege

Officer

were

Compl.

¶¶ 28,

Haden

Defendants

alleges

actions

Am.

that

she

to

directed
commit

that
in

“direct

33.
any

the

And,
of

the

constitutional

violations.
Plaintiff does summarily allege that Harris County had “a
custom or policy of providing inadequate safety and medical care
to

inmates.”

Am.

Compl.

¶ 113.

But

allegations in support of this claim.

she

makes

no

factual

Plaintiff does not allege

that any of the Corrections Officer Defendants “had any past
history,

or

even

one

prior

incident”

of

using

excessive,

unjustified force against an inmate or of unreasonably delaying
their response to an inmate with a serious medical need—much
less that Haden knew of a history of widespread abuse but failed
to correct it.
did

not

Cottone, 326 F.3d at 1361.

allege

connection

any

to

Haden

between

facts

establish

and

the

Therefore, Plaintiff
the

alleged

necessary

causal

unconstitutional

conduct and has thus failed to meet the rigorous standard for
imposing supervisory liability against Haden under § 1983.

See

Cottone, 326 F.3d at 1361-62 (concluding that district court
erred

in

dismiss

failing

where

the

to

grant

plaintiff

supervisory
did

not

defendants’

allege

“any

motion

to

affirmative

custom or policy” that played a role in the inmate’s death and

18

also did not allege that the supervisors had knowledge of the
subordinate officers’ “unconstitutional conduct so as to put the
supervisors on notice of the need to correct or to stop” it).
Therefore, Plaintiff’s § 1983 claim against Haden fails.
Haden is also entitled to dismissal of Plaintiff’s state
law claims against him.
a

causal

connection

Given the lack of allegations regarding

between

Haden

and

the

alleged

unlawful

conduct of the prison employees, the Court concludes that there
are no factual allegations to suggest that Haden acted with
actual

malice

or

actual

intent

to

cause

injury

in

the

performance of the discretionary functions of running the prison
and

supervising

the

corrections

officers.5

He

is

therefore

entitled to official immunity on Plaintiff’s state law claims
against him.
III. Claims Against Harris County
A.

Section 1983 Claims

A county can be sued under § 1983 for damages caused by a
constitutional violation only if the county’s policy or custom
was the moving force behind the constitutional violation.
Monell

v.

Dep’t

of

Soc.

Servs.,

5

436

U.S.

658,

694

See

(1978).

Plaintiff argues that these functions are ministerial rather than
discretionary and that official immunity thus does not apply. But the
operation of a county correctional institution, including the
establishment of policies and decisions regarding the degree of
training and supervision for corrections officers, is a discretionary
function. See, e.g., Bontwell v. Dep’t of Corrs., 486 S.E.2d 917, 922
(Ga. Ct. App. 1997).

19

Again, Plaintiff does not assert that corrections officers used
excessive

force

against

Burden

or

unreasonably

delayed

his

medical treatment pursuant to an official Harris County Prison
policy.

Rather,

she

alleges

that

the

corrections

officers’

challenged actions were in “direct violation of prison policy.”
Am. Compl. ¶¶ 28, 33.

Plaintiff seems to contend that Haden,

acting as a final policymaker for Harris County, established a
policy

or

care.

custom

But,

sufficient

of

as

factual

providing

discussed

inadequate

above,

allegations

safety

Plaintiff

to

support

and

did
such

medical

not
a

make
claim.

Plaintiff did not allege any affirmative prison custom or policy
that played a role in Burden’s death.

She also did not allege

facts to suggest “such ‘a longstanding and widespread practice
[that it] is deemed authorized by’” Haden because he “must have
known about it but failed to stop it.”

Craig v. Floyd Cty.,

Ga., 643 F.3d 1306, 1310 (11th Cir. 2011) (quoting Brown v. City
of Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir. 1991)).

For

these reasons, Plaintiff’s Amended Complaint does not state a
§ 1983 claim against Harris County.
B.

State Law Claims

Harris
immunity

on

County

argues

Plaintiff’s

that
state

it

is

law

entitled
claims.

to
The

sovereign
Georgia

constitution provides that “sovereign immunity extends to the
state and all of its departments and agencies” except to the

20

extent the legislature enacts a specific waiver.

Ga. Const.

art.

extends

I,

§

counties.
1994).

2,

¶ IX(e).

Gilbert

v.

This

sovereign

Richardson,

452

immunity
S.E.2d

476,

479

to

(Ga.

Sovereign immunity “can only be waived by an Act of the

General

Assembly

which

specifically

provides

that

sovereign

immunity is thereby waived and the extent of such waiver.” Ga.
Const. art. I, § 2, ¶ IX(e); accord O.C.G.A. § 36-1-4 (“A county
is not liable to suit for any cause of action unless made so by
statute.”).

Although the Georgia Tort Claims Act provides a

limited waiver of sovereign immunity “for the torts of state
officers and employees while acting within the scope of their
official duties or employment” (subject to certain exceptions),
that waiver does not apply to counties.
Court

Prob.

Dep’t,

674

S.E.2d

894,

Currid v. DeKalb State
897

(Ga.

2009);

accord

O.C.G.A. § 50-21-22(5) (stating that the term “state” used in
the Georgia Tort Claims Act “does not include counties”).
Plaintiff

did

not

point

to

any

exceptions to state sovereign immunity.

applicable

statutory

Plaintiff nonetheless

contends that a county can be held liable for the acts of its
employees in their official capacities.

In support of this

argument, Plaintiff relies on Ward v. Dodson, 569 S.E.2d 554
(Ga. Ct. App. 2002) and O.C.G.A. § 33-24-51(b).

Ward was an

action against a sheriff’s deputy based on a car crash that
occurred

during

a

police

chase,

21

and

O.C.G.A. §

33-24-51(b)

provides

that

county

sovereign

immunity

is

waived

in

cases

arising from the negligent use of a motor vehicle to the extent
of the county’s liability insurance coverage.6

This authority

does not establish an express waiver of state sovereign immunity
for the claims at issue in this case.

Without such a waiver,

Harris County is entitled to sovereign immunity on Plaintiff’s
state law claims.
IV.

Claims Against Georgia Department of Corrections
A.

Section 1983 Claims

Plaintiff asserts § 1983 claims against GDOC based on the
alleged

excessive

force

used

against

Burden

and

failure to provide timely medical care to Burden.

the

alleged

GDOC argues

that even if the Court assumes for purposes of the motion to
dismiss

that

the

Harris

County

Prison

officials

were

state

employees, GDOC is entitled to Eleventh Amendment immunity on
Plaintiff’s § 1983 claims.

6

Plaintiff also relies on this Court’s decision in Robinson v. Smith,
No. 4:14-CV-149 CDL, 2015 WL 4193269 (M.D. Ga. July 10, 2015). That
case against a county school district arose from the alleged abuse of
a student with disabilities while at school.
The plaintiffs brought
claims under various federal laws and also asserted state law claims.
The plaintiffs did not name the county school district in their
complaint.
When one of the individual defendants filed a motion to
dismiss the claims against her, there was some confusion about what
claims the plaintiffs were asserting against whom, and the Court
construed the plaintiffs’ official capacity claims against the
individual defendants as claims against the county school district and
deemed the plaintiffs’ complaint to be amended accordingly. The order
only addressed whether the individual capacity claims against one
individual defendant should be dismissed and did not evaluate whether
the claims against the county school district claims should be
dismissed based on state law sovereign immunity.

22

The Eleventh Amendment to the United States Constitution
bars damages actions by private individuals in federal court
against a state and its agencies unless the state waives the
immunity

or

Congress

validly

Graham, 473 U.S. at 169.

abrogated

the

immunity.

E.g.,

GDOC is an agency of Georgia.

See

Stevens v. Gay, 864 F.2d 113, 115 (11th Cir. 1989) (finding that
the

Eleventh

attorney’s

Amendment

fees

barred

against

a

GDOC).

42

U.S.C. §

“Congress

1988

has

Eleventh Amendment immunity in § 1983 cases.”

claim

not

for

abrogated

Nichols v. Ala.

State Bar, 815 F.3d 726, 731 (11th Cir. 2016) (per curiam).
And, Georgia has not waived its Eleventh Amendment immunity with
regard to the § 1983 claims in this action.
I,

§

2,

¶

IX(f)

(stating

that

Georgia’s

See Ga. Const. art.
limited

waiver

of

sovereign immunity through the Georgia Tort Claims Act is not a
waiver

of

any

Constitution).

immunity
Therefore,

provided

to

Georgia

Plaintiff’s

§ 1983

by

the

claims

U.S.

against

GDOC are dismissed based on Eleventh Amendment immunity.
B.

State Law Claims

Plaintiff asserts state law negligence and wrongful death
claims against GDOC based on the Harris County Prison officials’
alleged use of excessive force against Burden and the alleged
failure to provide timely medical care to Burden.

Plaintiff

also asserts a negligent hiring and retention claim against GDOC
based on these acts and omissions.

23

GDOC argues that it is

entitled to state law sovereign immunity on these claims.

As

discussed below, the GDOC is entitled to state law sovereign
immunity for Plaintiff’s claims arising from the use of force
against Burden but not for Plaintiff’s claims arising from the
alleged delay in medical treatment.
Under the Georgia Constitution, “sovereign immunity extends
to the state and all of its departments and agencies” except to
the extent the legislature enacts a specific waiver.
art. I, § 2, ¶ IX(e).

Ga. Const.

By enacting the Georgia Tort Claims Act,

Georgia waived “its sovereign immunity for the torts of state
officers and employees while acting within the scope of their
official duties or employment and shall be liable for such torts
in the same manner as a private individual or entity would be
liable under like circumstances,” subject to certain exceptions.
O.C.G.A. § 50-21-23(a).
GDOC argues that the Corrections Officer Defendants were
not state employees because they were employed by Harris County,
not

GDOC.

In

support

intergovernmental

of

agreement

this

argument,

between

Harris

GDOC

points

County

and

to

an

GDOC.

Plaintiff did not attach the agreement to her Complaint, so the
Court may only consider the document without converting GDOC’s
motion to dismiss into one for summary judgment if it is “(1)
central to the plaintiff’s claim; and (2) undisputed.”
v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002).

24

Horsley

The agreement

is neither central to Plaintiff’s claims nor undisputed, so the
Court

may

not

consider

it

at

this

stage

of

the

litigation.

Plaintiff alleges that the Corrections Officer Defendants were
agents of GDOC.

The Court accepts this allegation as true for

purposes of the pending motion.
GDOC argues that even if the Corrections Officer Defendants
are

considered

agents

for

Plaintiff’s

dismiss,

GDOC

claims

are

purposes
barred

of

by

the

the

motion

“assault

to
and

battery” exception to Georgia’s waiver of sovereign immunity:
Georgia
resulting

did

not

from”

waive
assault

its
or

sovereign
battery.

immunity
O.C.G.A. §

“for

losses

50-21-24(7)

(emphasis added). If Plaintiff’s claims were based solely on a
guard’s use of excessive force against Burden, her claims would
clearly be barred by the assault and battery exception to the
waiver of sovereign immunity.

But that is not the end of the

inquiry because Plaintiff claims that there was a second cause
of Burden’s death: the Corrections Officer Defendants’ alleged
decision

to

wait

an

unreasonable

amount

of

time

before

responding to Burden’s collapse, in violation of prison policy.
GDOC argues that the Court should not consider the second
alleged cause because Plaintiff did not submit an affidavit to
establish causation and did not make any specific allegations to
support

her

claim

that

the

Corrections

Officer

Defendants’

alleged delay was a proximate cause of Burden’s death.

25

But

Plaintiff was not required to submit an affidavit to survive
GDOC’s motion to dismiss.7
Complaint

as

true

and

And, taking the allegations in the

drawing

all

reasonable

inferences

in

Plaintiff’s favor, as the Court must do at this stage in the
litigation, the Court finds that Plaintiff adequately alleged
that the delay was a proximate cause of Burden’s death.
next

question

is

whether

Plaintiff’s

claim

against

GDOC

The
is

nonetheless barred by sovereign immunity.
GDOC argues that even if Plaintiff adequately alleged that
the

delay

in

providing

treatment

was

a

proximate

cause

of

Burden’s death, GDOC is still entitled to sovereign immunity
under the assault and battery exception to waiver.

In support

of this argument, GDOC relies on cases where a state employee
acted negligently and then a non-state actor committed a battery
that caused a loss; in these cases, the assault and battery
exception applied.

See, e.g., Youngblood v. Gwinnett Rockdale

Newton Cmty. Serv. Bd., 545 S.E.2d 875, 878 (Ga. 2001) (applying
assault and battery exception where a public agency negligently
placed a disabled woman in a group home and then the couple that
ran the group home beat her); Southerland v. Georgia Dep’t of
Corr., 666 S.E.2d 383, 385 (Ga. Ct. App. 2008) (applying assault
7

GDOC did not cite any authority in support of its argument that
Plaintiff should have submitted an affidavit. Georgia law requires an
expert affidavit to be filed with complaints in actions alleging
professional malpractice.
O.C.G.A. § 9-11-9.1.
This is not such a
case.
Furthermore, GDOC did not raise this argument until its reply
brief, so it is not properly before the Court.

26

and battery exception where prison officials failed to follow
prison classification and housing procedures and then an inmate
was beaten to death by his cellmate); Dep’t of Human Res. v.
Hutchinson, 456 S.E.2d 642, 644 (Ga. Ct. App. 1995) (applying
assault and battery exception where a public agency negligently
placed a foster child in a home and then the foster child found
his foster mother’s gun and shot her with it).

In each of these

cases, the government’s act “produced no loss” and the non-state
actor’s battery did.

Hutchinson, 456 S.E.2d at 644.

These

cases are all distinguishable from this action.
The Georgia Supreme Court rejected the argument that “as
long as any one of the causes connected to a plaintiff’s loss is
a cause for which the State would be immune from suit, the State
would always be immune from any suit stemming from such loss.”
Georgia Dep’t of Transp. v. Heller, 674 S.E.2d 914, 917 (Ga.
2009).

Instead, if the latter event that led to the loss “was

something for which the State was not entitled to the protection
of

sovereign

immunity,”

sovereign immunity.

Id.

then

the

State

is

not

entitled

In Heller, a taxicab’s passenger was

killed when her taxi spun out of control and hit a tree.
was

evidence

that

a

to

non-state

actor,

a

taxi

There

inspector,

inadequately inspected the tires and negligently failed to issue
a “do not operate” citation.
the

Georgia

Department

of

But there was also evidence that
Transportation

27

violated

generally

accepted engineering standards for maintaining a proper clear
zone along the highway.

The Georgia Supreme Court found that

the DOT’s failure was a “second event leading to the loss” that
did “not fall within any exception to the State’s waiver of
sovereign

immunity,”

and

that

the

State

thus

“waived

its

sovereign immunity in connection with the wreck that caused the
passenger’s death.
As

in

Heller,

Burden’s death.
within

the

immunity.

Id. at 917.
Plaintiff

alleged

two

events

leading

to

The first, a beating inflicted on Burden, falls

battery
But

the

exception
second

to

the

waiver

event—failure

to

of

sovereign

follow

prison

procedures for responding to an inmate with a serious medical
need—does not.

GDOC did not argue that any other exception to

the waiver of sovereign immunity applies.

Thus, based on the

present record, GDOC is not entitled to sovereign immunity based
on the assault and battery exception to waiver.
GDOC argues that even if it is not entitled to sovereign
immunity based on the assault and battery exception to waiver,
Plaintiff’s
adequate

claim

ante

fails

litem

because

notice

of

Plaintiff

did

claims

against

her

not

provide

GDOC.

As

discussed above, “sovereign immunity extends to the state and
all of its departments and agencies” except to the extent the
legislature enacts a specific waiver.
¶ IX(e).

Ga. Const. art. I, § 2,

The Georgia Tort Claims Act waives Georgia’s sovereign

28

immunity for torts of state employees while acting in the scope
of their employment. O.C.G.A. § 50-21-23(a).

But, no action

against Georgia under the Georgia Tort Claims Act “shall be
commenced
unless

and

and

presented

the

until
to

courts
a

the

shall

written
state

have

notice

as

no

of

jurisdiction

claim

provided

in

has

this

been

thereof
timely

subsection.”

O.C.G.A. § 50-21-26(a)(3).
An ante litem notice “shall state, to the extent of the
claimant’s knowledge and belief and as may be practicable under
the circumstances, the following:”
(A)

The name of the state government entity, the acts
or omissions of which are asserted as the basis
of the claim;

(B)

The time of the transaction or occurrence out of
which the loss arose;

(C)

The place of the transaction or occurrence;

(D)

The nature of the loss suffered;

(E)

The amount of the loss claimed; and

(F)

The acts or omissions which caused the loss.

O.C.G.A. § 50-21-26(a)(5).
The
Georgia’s

Georgia

Tort

sovereign

Claims

immunity,

Act
and

is
“a

a

limited

claimant

waiver

must

of

‘strictly

comply with the notice provisions as a prerequisite to filing
suit

under

sufficient.’”

the

[Act],

and

substantial

compliance

is

not

Williams v. Wilcox State Prison, 799 S.E.2d 811,

813 (Ga. Ct. App. 2017) (quoting Dorn v. Ga. Dep’t of Behavioral

29

Health & Developmental Disabilities, 765 S.E.2d 385, 387 (Ga.
Ct. App. 2014)).

Although the Georgia courts “have repeatedly

emphasized that the rule of strict compliance ‘does not demand a
hyper-technical construction that would not measurably advance
the purpose of the [Act’s] notice provisions[,] . . . if the
ante-litem notice requirements are not met, then the State does
not waive sovereign immunity.’”
at 387).

Id. (quoting Dorn, 765 S.E.2d

Thus, a complaint that alleges an act or omission

causing the loss that is different from the act or omission
alleged in the ante litem notice must be dismissed for lack of
strict

compliance

requirement.

with

See,

the

Georgia

e.g.,

id.

Tort

at

814

Claims

Act’s

(finding

notice

that

the

plaintiff’s ante litem notice complaining that GDOC failed to
keep the prison bathroom dry or to warn an inmate of a water
hazard was not sufficient to put GDOC on notice of the claim in
the

plaintiff’s

complaint

regarding

uneven

flooring

in

the

bathroom).
Here,

the

ante

litem

notice

states

that

Plaintiff

is

providing notice of claims against the Harris County Prison,
GDOC, and their officers and employees.

GDOC contends that the

ante

allege

litem

notice

does

not

adequately

that

any

GDOC

employees committed the acts or omissions that led to Burden’s
death.
result

The ante litem notice alleges that Burden “died as a
of

the

acts

and/or

omissions

30

of

the

[Harris

County

P]rison’s employees” and that the “Harris County Prison, through
its employees, officers, agents and other representatives, was
negligent

through

multiple

acts

and/or

omissions,

including

. . . failure to adequately provide medical care and treatment.”
Compl. Ex. B, Ante Litem Notice, ECF No. 1-1 at 32.

Plaintiff

alleges in her Complaint that the Harris County Prison employees
were also agents of the GDOC.
must

accept

the

litigation),

allegation

then

the

ante

If that is true (and the Court
as

true

litem

at

this

notice

stage

provides

notice of Plaintiff’s claims against GDOC agents.

in

the

sufficient

GDOC’s motion

to dismiss on this ground is denied.
CONCLUSION
For

the

reasons

set

forth

above,

the

Court

motions to dismiss of Harris County and Haden.

grants

the

The Court grants

GDOC’s motion to dismiss Plaintiff’s § 1983 claims but denies
the

motion

as

alleged

delay

ruling

on

entitled

to

to
in

Plaintiff’s
providing

whether

the

qualified

state

medical

law
care.

Corrections
immunity

claims
The

Officer

and

denies

based
Court

on

defers

Defendants
their

the

motion

are
to

dismiss Plaintiff’s § 1983 and state law claims for excessive
force and deliberate indifference to a serious medical need.
Within twenty-eight days of today’s Order, the parties shall
present

the

Court

limited

discovery

with

a

described

scheduling
above

31

to

order
be

that

allows

completed

and

the
an

appropriate

summary

judgment

motion

filed;

that

limited

discovery may include discovery on who employed the Corrections
Officer Defendants.
IT IS SO ORDERED, this 26th day of October, 2018.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

32