POTTER v. DOOLY COUNTY GEORGIA et al

Filing 62

ORDER GRANTING in part and DENYING in part 58 Motion for Reconsideration. Potter's motion for reconsideration is GRANTED in part with respect to the First Amendment retaliation claim against the Estate o f Sheriff Peavy and DENIED in part with respect to the First Amendment retaliation claim against Williford and Dooly County. For the reasons discussed in this order, the Estate's motion for summary judgment is DENIED with respect to the federal First Amendment retaliation claim and the state-law claim for violations of the First Amendment of the Constitution of the State of Georgia, DENIED with respect to a state-law claim for tortious interference with business relations, and GRANTED with respect to Potter's claims for punitive damages. Potter's motion to enter partial final judgment is DENIED as moot. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 8/2/2016. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
LORIE POTTER,
Plaintiff,
v.
DOOLY COUNTY, GEORGIA, et al.,
Defendants.

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CIVIL ACTION NO. 5:14-CV-315 (MTT)

ORDER
Plaintiff Lori Potter has moved for reconsideration of the Court’s order granting in
part the Defendants’ motion for summary judgment. (Doc. 58). In the alternative, Potter
asks the Court to enter partial final judgment pursuant to Fed. R. Civ. P. 54(b).
I.

MOTION FOR RECONSIDERATION1

Pursuant to Local Rule 7.6, “Motions for Reconsideration shall not be filed as a
matter of routine practice.” M.D. Ga. L.R. 7.6. “Reconsideration is appropriate only if
the movant demonstrates (1) that there has been an intervening change in the law, (2)
that new evidence has been discovered which was not previously available to the
parties in the exercise of due diligence, or (3) that the court made a clear error of law.”
Bingham v. Nelson, 2010 WL 339806, at *1 (M.D. Ga.) (internal quotation marks and
citation omitted). “In order to demonstrate clear error, the party moving for
reconsideration must do more than simply restate his prior arguments, and any

1

The Defendants contend the notice of appeal divested the Court of jurisdiction “to grant” Potter’s motion.
(Doc. 61 at 6). Because the issues in Potter’s motion are “separate and distinct from the issues raised in
[the] notice of appeal,” the Defendants’ argument is without merit. United States v. Reed, 404 F. App’x
464, 465 (11th Cir. 2010).

arguments which the party inadvertently failed to raise earlier are deemed waived.”
McCoy v. Macon Water Auth., 966 F. Supp. 1209, 1223 (M.D. Ga. 1997).
Potter argues the Court erred in granting summary judgment to the Defendants
on her First Amendment claims. Specifically, Potter contends the Court erred in
granting qualified immunity to the Estate of Sheriff Lucius Van Peavy and in concluding
that the First Amendment claims against Don Williford and Dooly County should be
dismissed.
A.

Sheriff Peavy
1. First Amendment retaliation claim

Potter says the Court wrongly concluded that there was undisputed evidence that
Sheriff Peavy’s decision to ban her from the county jail was motivated, at least in part,
by lawful grounds. (Doc. 58 at 14). Potter argues the Court improperly relied on Foy v.
Holston, 94 F.3d 1528 (11th Cir. 1996) because her evidence of a “comparator” created
a jury issue “as to pretext.” (Doc. 58 at 6). Thus, Potter argues “[t]here simply was no
undisputed record that Peavy was motivated, even in part, by an objectively lawful
consideration and, therefore, no room for Foy to apply.” (Id.).
Potter says Foy is not applicable here because this is not a “mixed motive” case.
(Id. at 7). In that, Potter is clearly wrong; this is a “potential mixed-motive case[].”
Stanley v. City of Dalton, Ga., 219 F.3d 1280, 1295 (11th Cir. 2000). There is evidence
that Sheriff Peavy could have retaliated for Potter’s First Amendment activity. He knew
of Potter’s First Amendment activity, and when he took his alleged adverse employment
action, he sanctioned only Potter and not her colleague (the so-called “comparator”)
who allegedly engaged in the same improper conduct. (Docs. 37-13 at 78:2-16, 78:22-

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79:16; 53 at 13). Consequently, the Court concluded that a fact issue existed on the
question of whether the Sheriff acted on an improper motive when he sanctioned Potter.
(Doc. 53 at 13).
But it is clear that Sheriff Peavy also had lawful grounds to sanction Potter: he
received a report that Potter had ignored a nurse and jail administrator both of whom
had health information regarding an inmate Potter was attending to, and, expressly for
this reason, he banned Potter from the LEC. (Docs. 37-13 at 71:19-25; 37-19 at 54:2224, 57:6-10; 37-24; 48-6 ¶¶ 67-68, 74). The real question is whether it is undisputed
that Sheriff Peavy relied on this lawful ground, at least in part, when he took his action.
Although the Court disagrees with Potter’s legal analysis, factually she raises an
interesting point. Does the fact that the Sheriff did not sanction the comparator create
an issue of fact on the question of whether the Sheriff relied at least in part on lawful
grounds when he sanctioned Potter? Again, it is undisputed the Sheriff had lawful
grounds, and it is undisputed that he cited these lawful grounds when he informed
Williford of his decision to ban Potter from the LEC. Notwithstanding these undisputed
facts, has Potter asserted facts suggesting that the Sheriff did not undisputedly rely on
these grounds?
This is not a situation, as Potter suggests, like that in Bogle v. McClure, 332 F.3d
1347 (11th Cir. 2003), where the plaintiffs adduced evidence that the defendants’
alleged lawful grounds for their actions were in fact a sham. Again, the Sheriff
undisputedly had lawful grounds to act; the question is whether it is undisputed that he
relied in part on these grounds. The question is a close one, and case law provides
little guidance; but the Court concludes that a jury could reasonably find that,

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notwithstanding the existence of lawful grounds, the Sheriff did not act on those grounds
based on the evidence that he did not sanction the comparator. Accordingly, the Court
agrees that it cannot be said as a matter of law that Sheriff Peavy relied on lawful
grounds when he banned Potter from the LEC.
Because the Court concluded the Estate was entitled to qualified immunity in the
order granting summary judgment, the Court assumed Potter had established her prima
facie case of a First Amendment retaliation claim. (Doc. 53 at 13). Specifically, the
Court concluded that there were genuine issues of fact regarding whether Sheriff Peavy
was subjectively motivated to ban Potter from the LEC because of her political conduct
and whether Sheriff Peavy would have banned Potter even absent her political conduct.
(Id.). As to the second element of her claim, Potter pointed to negative workplace
consequences to create a genuine issue of fact, and the Court stated it was debatable
whether such consequences would deter a person of ordinary firmness from exercising
her First Amendment rights. (Id. at 12). The Court clarifies that there is a genuine issue
of fact whether Sheriff Peavy’s ban would deter a person of ordinary firmness from
exercising her First Amendment rights. The ban did not simply create negative
workplace consequences for Potter; it also prevented Potter from performing part of her
job responsibilities. Therefore, a reasonable jury could find that the ban would deter a
person of ordinary firmness from engaging in protected speech. That Potter’s job
responsibilities were adjusted after the ban does not preclude a genuine issue of fact on
this element. See Bennett v. Hendrix, 423 F.3d 1247, 1254 (11th Cir. 2005) (“[T]he
effect on freedom of speech … need not be great in order to be actionable.” (internal
quotation marks and citation omitted)).

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Accordingly, Potter has sufficiently established a First Amendment violation to
survive summary judgment, and the Estate of Sheriff Peavy is not entitled to qualified
immunity under Foy. Thus, Potter’s motion for reconsideration is GRANTED with
regard to the Court’s order granting summary judgment to the Estate on Potter’s federal
First Amendment retaliation claim.
2. State-law claims against the Estate of Sheriff Peavy
In the order granting summary judgment, the Court declined to exercise
supplemental jurisdiction over the state-law claims against the Estate for Sheriff Peavy’s
alleged violations of the First Amendment of the Constitution of the State of Georgia and
tortious interference with employment relations. Because the Estate is not entitled to
qualified immunity on the First Amendment retaliation claim, the Court addresses these
claims.
With respect to the violation of the First Amendment of the Constitution of the
State of Georgia, the Estate moved for summary judgment on the same ground (with
the exception of qualified immunity) that it moved for summary judgment on the federal
First Amendment claim: that Potter did not sufficiently establish a First Amendment
violation.2 (Doc. 37-1 at 9). Accordingly, the Court denies the Estate’s motion for
summary judgment as to this claim for the same reasons the Court concluded Potter
sufficiently established a constitutional violation as to the federal First Amendment
claim.
The Estate moves for summary judgment on Potter’s claim for tortious
interference with business relations. (Doc. 37-1 at 18). Potter’s amended complaint
does not assert a claim for tortious interference with business relations. Rather, it
2

The Estate did not assert official immunity as to this claim in its motion for summary judgment.
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asserts a claim for tortious interference with employment relations. (Doc. 35 at 18).
While the two causes of action have some overlap, they are not identical. Given the
Estate’s fairly brief discussion in support of its motion for summary judgment on a
tortious interference with business relations claim, the Court does not feel it appropriate
to rule on the merits of Potter’s claim for tortious interference with her employment
relations.
3. Punitive damages
In its order granting summary judgment to the Estate, the Court necessarily
dismissed Potter’s claims for punitive damages for Sheriff Peavy’s alleged violation of
Potter’s First Amendment rights. The Court now addresses the merits of Potter’s claims
for punitive damages.
In its motion for summary judgment, the Estate argues punitive damages are not
available against the estate of a deceased tortfeasor because “punitive damages would
not act to deter [Sheriff Peavy] from future wrongdoing.” (Doc. 37-1 at 19). Potter
responds that this position is meritless because “[t]he estate merely stands in the
defendant’s place and is as liable as the deceased defendant.” (Doc. 48 at 28).
The parties overlook a well-known principle of Georgia law. When a tortfeasor
dies, punitive damages for the tortfeasor’s conduct may not be recovered from the
tortfeasor’s estate. Morris v. Duncan, 126 Ga. 467, 54 S.E. 1045, 1046 (1906). Clearly,
the Estate is entitled to summary judgment on Potter’s punitive damages claims on her
state-law claims.
The Eleventh Circuit has not addressed the availability of punitive damages
against the estate of a deceased tortfeasor in a § 1983 claim. However, the court has

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addressed the issue in another context. In In re Matter of GAC Corp., 681 F.2d 1295,
1301 (11th Cir. 1982), the court, applying bankruptcy law, affirmed the dismissal of a
claim for punitive damages “because future wrongful conduct will not be deterred when
the punitive damages are paid from the wrongdoer’s estate rather than from his own
pocket.” Id.3 The Eleventh Circuit reasoned that “the effect of allowing a punitive
damages claim would be to force innocent creditors to pay for the bankrupt’s
wrongdoing.” Id. To support its holding, the Eleventh Circuit relied on analogous law
where “numerous cases … held that punitive damages cannot be recovered from the
estate of a deceased tortfeasor because the purpose of punitive damages, whether it be
punishment or deterrence, would not be served under such circumstances.” Id. n.5
(citing cases).
Moreover, the Supreme Court, in examining the common law of torts principles
that underpin “damages awards under § 1983,” explained that “42 U.S.C. § 1988
authorizes courts to look to the common law of the States where this is ‘necessary to
furnish suitable remedies’ under § 1983.” Carey v. Piphus, 435 U.S. 247, 257, 258 n.13
(1978); see also Karnes v. SCI Colo. Funeral Servs., Inc., 162 F.3d 1077, 1080 (10th
Cir. 1998) (“Section 1988 directs courts to … first … determine whether federal law
establishes a suitable rule to apply. If no suitable federal rule exists, the Court must
then determine whether the state law supplies one. Finally, the court must consider
3

The Court acknowledges that the Seventh Circuit and some bankruptcy courts in the Eleventh Circuit
have called into question, qualified, or not followed the Eleventh Circuit’s holding that punitive damages
are disallowed in bankruptcy. See In re Friedman’s, Inc., 356 B.R. 766, 771 (S.D. Ga. 2006) (citing
cases). Doubt of the Eleventh Circuit’s categorical approach arose when the Supreme Court “rejected
the contention that tax penalties may be disfavored categorically.” In re A.G. Fin. Serv. Ctr., 395 F.3d
410, 414 (7th Cir. 2005) (stating that United States v. Noland, 517 U.S. 534 (1996) “strongly impl[ied] that
case-by-case administration of the Code’s authority for equitable subordination is the right way to deal
with all punitive financial claims”). Notwithstanding the disagreement in bankruptcy law over this issue,
the Court cites In re Matter of GAC Corp. for the principle as applied to the estates of deceased
tortfeasors.
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whether the state rule, if it exists, is inconsistent with federal law.” (citing Burnett v.
Grattan, 468 U.S. 42, 47-48 (1984)). Given the Eleventh Circuit’s general
pronouncement that punitive damages may not be recovered from the estate of a
deceased tortfeasor and the clear law of Georgia consistent with the principle, the Court
agrees that punitive damages may not be recovered from Sheriff Peavy’s Estate.
Accordingly, the Estate’s motion for summary judgment is GRANTED as to
Potter’s claims for punitive damages against the Estate.
B.

Williford and Dooly County

With respect to Williford and Dooly County, Potter argues that a cat’s paw theory
applies because in a “small town dynamic …, Sheriff Peavy had more sway over
Williford than would be found in a supervisor/subordinate relationship,” and further, the
fact that Williford used a ballot system for the first time in his decision not to hire Potter
and never used the ballot system again demonstrates “pretext.” (Doc. 58 at 11-12).
The Court notes that Potter did not raise a cat’s paw theory in her motion for
summary judgment, and she cites no authority applying such a theory outside an
employment setting. (Sheriff Peavy was an entity separate from Williford and Dooly
County). Essentially, Potter asks the Court to speculate that Sheriff Peavy was a
powerful figure in the county, who improperly influenced Potter’s employer. A nice
theory, but there is no evidence to support it. Certainly, as Williford acknowledged, a
sheriff is a “very powerful individual,” but, as Williford also said, that meant he would
have “worked around” a directive from a sheriff as to who could respond to calls at the
sheriff’s jail. (Doc. 37-19 at 67:14-19). This does not support an inference that Williford
was motivated to retaliate against Potter by denying her the first promotion.

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In any event, Williford is entitled to qualified immunity. (Doc. 53 at 15-17). The
evidence demonstrating that Williford was faced with a unanimous vote to promote a
different EMT than Potter and then relied in part on that lawful reason when he did not
promote Potter is undisputed. (Docs. 37-19 at 91:12-92:12, 123:24-124:15; 48-6, ¶ 84).
That this was the first time he had polled employees on such an issue doesn’t change
those facts. Accordingly, Potter’s motion for reconsideration is DENIED with respect to
the First Amendment retaliation claims against Williford and Dooly County.
Because the Court has granted Potter’s motion for reconsideration in part, her
motion for entry of partial final judgment, as drafted, is MOOT.
II.

CONCLUSION

For the foregoing reasons, Potter’s motion for reconsideration is GRANTED in
part with respect to the First Amendment retaliation claim against the Estate of Sheriff
Peavy and DENIED in part with respect to the First Amendment retaliation claim
against Williford and Dooly County. For the reasons discussed in this order, the
Estate’s motion for summary judgment is DENIED with respect to the federal First
Amendment retaliation claim and the state-law claim for violations of the First
Amendment of the Constitution of the State of Georgia, DENIED with respect to a statelaw claim for tortious interference with “business” relations, and GRANTED with respect
to Potter’s claims for punitive damages.
Potter’s motion to enter partial final judgment is DENIED as moot.
SO ORDERED, this 2nd day of August, 2016.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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