FLEWELLEN v. MACON BIBB GEORGIA et al
Filing
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ORDER granting 4 Motion to Dismiss for Failure to State a Claim; granting 12 Motion to Dismiss. Ordered by US DISTRICT JUDGE LESLIE J ABRAMS on 9/29/2016. (bcl)
IN THE UNITED STATES DISTRICT
COURT FOR THE MIDDLE DISTRICT
OF GEORGIA ALBANY DIVISION
SHAWN FLEWELLEN
Plaintiff,
v.
CITY OF MACON, GEORGIA,
BIBB COUNTY, GEORGIA,
MACON-BIBB COUNTY
UNIFIED GOVERNMENT,
CHIEF MIKE BURNS, in his
official capacity as Chief of Police,
SHERIFF DAVID DAVIS, in his
official capacity as Sheriff,
OFFICER A. GILBERT,
individually, and in his official
capacity, OFFICER DURBIN,
individually, and in his official
capacity, and all unnamed current
and/or former employees of the
City of Macon and the Bibb County
Sheriff’s Office involved in the
subject of this suit,
Defendant.
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CASE NO.: 5:15-CV-86 (LJA)
ORDER
Before the Court are Defendants Macon-Bibb County, City of Macon, Bibb
County Georgia, Chief Mike Burns, and Sheriff David Davis’ Motion to Dismiss, (Doc.
4), and Defendants Officer Gilbert and All Unnamed Current and/or Former Employees
of the City of Macon and the Bibb County Sheriff’s Office Involved in the Subject of the
Suit’s Motion to Dismiss, (Doc. 12). For the following reasons, Defendants’ Motions are
GRANTED.
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BACKGROUND1
This action arises out of Plaintiff Shawn Flewellen’s arrest on March 14, 2013. (Doc.
1). During the arrest, a physical altercation ensued. Id. In the course of the struggle,
Defendant Durbin called for backup, and several officers arrived on the scene to assist with
Plaintiff’s arrest. Id. Plaintiff was ultimately overpowered and placed on the ground in
handcuffs. Id. Even after Plaintiff was subdued, Plaintiff was beaten, kicked, and punched by
the officers and sustained multiple bruises, a broken right arm, and several broken ribs. Id.
Plaintiff was taken to the Bibb County Law Enforcement Center. Id. Despite his serious and
obvious physical injuries, Plaintiff did not receive medical attention until the next day after his
mother called Lt. Clowers of the Bibb County Sheriff’s Office and advised Lt. Clowers of her
son’s injuries. Id. Lt. Clowers then arranged to have Plaintiff taken to the nearest medical
facility. Id. Plaintiff was taken to the Medical Center of Central Georgia, where he underwent
surgery to treat his broken arm and spent several days recuperating. Id.
Plaintiff filed his Complaint on March 13, 2016. Id. Plaintiff served Defendants City
of Macon and Bibb County Georgia on April 1, 2015. (Docs. 5 and 6). Defendant Sheriff
David Davis was served on April 10, 2015. (Doc. 7). Defendant Officer Durbin waived
formal service and filed an Answer on May 12, 2015. (Doc. 8). The other Defendants to this
action have not been served. (See generally Docket).
Defendants Macon-Bibb County, City of Macon, Bibb County Georgia, Chief Mike
Burns, and Sheriff David Davis (collectively referred to herein as the “Supervisory
Defendants) filed a Motion to Dismiss on April 17, 2015. (Doc. 4). Plaintiff did not
respond to the Supervisory Defendants’ Motion to Dismiss. (See generally Docket).
Defendants Officer Gilbert and All Unnamed Current and/or Former Employees of the
City of Macon and the Bibb County Sheriff’s Office Involved in the Subject of the Suit
(referred to herein as the “Unnamed Defendants”) filed a Motion to Dismiss on July 25,
2016. (Doc. 12). Defendant Responded on August 15 and 16, 2016, and Defendants Gilbert
and the Unnamed Defendants Replied on August 16, 2016. (Docs. 14, 18, and 19). The
On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court accepts all facts alleged in Plaintiff’s
complaint, (Doc. 1), as true. See Fed. R. Civ. P. 12 (b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Bryant v.
Avado Brands, Inc., 187 F.3d 1271, 1273 n.1 (11th Cir. 1999).
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Motions are now ripe for review. See M.D. Ga. L.R. 7.3.1(a).
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) requires that the complaint plead enough
facts to state a claim for relief that is plausible—not just conceivable—on its face. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). The court must “take the factual allegations
in the complaint as true and construe them in the light most favorable to the plaintiffs;”
however, it is not required “to accept the labels and legal conclusions in the complaint as
true.” Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010); see also Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (“[T]he tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.”).
At bottom, “the factual allegations in the complaint must ‘possess enough heft’ to set forth
‘a plausible entitlement to relief.’” Edwards, 602 F.3d at 1291.
DISCUSSION
I.
Claims Against Defendant Gilbert and the Unnamed Defendants
Defendants Gilbert and the Unnamed Defendants have moved to dismiss Plaintiff’s
claims against them because Plaintiff failed to perfect service within 120 days of filing
the Complaint. “Before a federal court may exercise personal jurisdiction over a
defendant, the procedural requirement of service of a summons must be satisfied.” Omni
Capital Intern., Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987). A “plaintiff is
responsible for serving the defendant with [the] summons and the complaint within the
time allowed under Rule 4(m).” Lepone-Dempsey v. Carroll Cty. Comm’rs, 476 F.3d 1277,
1280-81 (11th Cir. 2007). Pursuant to the Federal Rules of Civil Procedure in effect when
the case was filed, “Rule 4(m) requires a plaintiff to properly serve the defendant within 120
days of the plaintiff filing the complaint.” 2 Id. (citing Fed. R. Civ. P. 4(m)).
“If the plaintiff fails to properly serve the defendant within 120 days, ‘the court,
2
Effective December 1, 2015, Rule 4(m) was amended by reducing the time within which to perfect service from 120
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upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action
without prejudice . . . or direct that service be effected within a specified time; provided
that if the plaintiff shows good cause for the failure, the court shall extend the time for
service for an appropriate period.’” Id. (quoting Fed. R. Civ. P. 4(m)) (alterations in
original). “Good cause exists ‘only when some outside factor[,] such as reliance on faulty
advice, rather than inadvertence or negligence, prevented service.” Id. (quoting Prisco v.
Frank, 929 F.2d 603, 604 (11th Cir. 1991)). However, “even if a district court finds that a
plaintiff has not shown good cause for failing to effect timely service pursuant to Rule
4(m), ‘the district court must still consider whether any other circumstances warrant an
extension of time based on the facts of the case.’” King v. City of Waycross, Georgia, 5:14-CV32, 2015 WL 1525251, at *5 (S.D. Ga. Mar. 31, 2015) (quoting Lepone–Dempsey, 476 F.3d at
1282).
As discussed below, Plaintiff has failed to show good cause for the failure to serve
Gilbert or to even attempt to identify or serve the Unnamed Defendants within 120 days
of filing his Complaint. In light of Plaintiff’s flagrant disregard of the Federal Rules of Civil
Procedure, the Court finds that dismissal of Plaintiff’s claims against Defendant Gilbert
and the Unnamed Defendants is appropriate. In reaching this conclusion, the Court has
considered whether any other circumstances warrant an extension of time based on the
facts of the case, including the potential impact of the statute of limitations.
A. Defendant Gilbert
Plaintiff attempted to serve Gilbert at the same time that he served the County and
the Sheriff. When he was unable to serve Gilbert, he appears to have taken no further
actions to locate and serve Gilbert until after the Motion to Dismiss was filed. Plaintiff’s
evidence of his effort to locate Gilbert is, in fact, evidence of his lack of diligence. The
two pieces of evidence proffered by Plaintiff – an August 2015 article stating that Gilbert
was no longer with the Bibb County Sheriff’s office and a 2016 Lexis Locator search –
were both readily available in the 120 days following the filing of the Complaint. 3
days to 90 days. Fed. R. Civ. P. 4(m). However, as this matter was filed on March 13, 2015, the 2014 Rules apply.
3 Plaintiff does not indicate when he found the article about Defendant Gilbert’s separation from the Bibb County
Sheriff’s office, nor does he indicate when he ran the Locator search. The copyright on the Locator Search is 2016, so it
4
Furthermore, Plaintiff stated that, as of August 15, 2016, the date of his Response,
“Plaintiff is now determining whether to move forward with out of state service.” Thus,
despite having located Gilbert, Plaintiff still had made no further attempt to serve him
almost a year and a half after filing the Complaint. Thus, because Plaintiff’s lack of
diligence is the cause of the failure to effect service, good cause has not been shown with
regard to Defendant Gilbert.
The actions giving rise to this Complaint occurred on March 14, 2013. The statute
of limitations for an excessive force claim brought pursuant to 42 U.S.C. § 1983 is two years
pursuant to O.C.G.A. § 9-3-33. Jones v. Union City, 450 F. App’x 807, 808-09 (11th Cir. 2011)
(citing Wallace v. Kato, 549 U.S. 384, 387 (2007)). Accordingly, Plaintiff had until March 14,
2015 to file his claim, which he did on March 13, 2015—just one day before the expiration
of the statute of limitations. Accordingly, a dismissal at this stage would effectively bar
Plaintiff’s claims against Gilbert.4 But, “the running of the statute of limitations does not
require that a district court extend the time for service of process.” Horenkamp v. Van Winkle
And Co., Inc., 402 F.3d 1129,1133 (11th Cir. 2005). Thus, after considering the effect of the
statute of limitations along with Plaintiff’s lack of diligence, the Court finds that dismissal of
the claims against Defendant Gilbert for failure to serve process is appropriate.
B. The Unnamed Defendants
Likewise, Plaintiff has not shown good cause for the failure to identify and serve
any of the Unnamed Defendants. In fact, Plaintiff does not even address the Unnamed
Defendants in his Response to this Motion to Dismiss. Because good cause is not shown,
the claims against the Unnamed Defendants are subject to dismissal. While the Court
takes into account that the statute of limitations will bar refiling of the suit, dismissal is
still appropriate with regard to the Unnamed Defendants. As was the case in Wayne v.
Jarvis, Plaintiff, by waiting until the day before the statute of limitations ran to file his case
“waited too long before setting about to find crucial information he needed to make his
claim against the [Unnamed Defendants]. [Plaintiff] bears the consequences of his own
is clear that it was not run within 120 days of March 2015 when the Complaint was filed.
4 There is no assertion that Defendant Gilbert or the Unnamed Defendants have attempted to evade service, nor is there
an allegation of a concealed defect in attempted service.
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delay. Had he filed earlier, he could have learned the [Unnamed Defendants’] identities in
time to amend his complaint before the statute of limitations ran.” 197 F.3d 1098, 1104
(11th Cir. 1999). Thus, allowing service at this time would be futile because, “an
amendment to name the unidentified Defendants would not relate back under Fed. R.
Civ. P. 15(c) to Plaintiff's original complaint.” Lee v. State Patrol Office, 1:12-CV-3041, 2014
WL 221170, at *4 (N.D. Ga. Jan. 21, 2014) (citing Saxton v. ACF Indus., Inc., 254 F.3d 959,
962, 966 n. 11 (11th Cir.2001). Accordingly, dismissal of the Unnamed Defendants is
appropriate.
II. Claims Against Defendants Macon-Bibb County, Chief Burns, and Sheriff
Davis
Plaintiff sues the Supervisory Defendants under 42 U.S.C. § 1983. Defendants
Macon-Bibb County5, Chief Burns, and Sheriff Davis moved to dismiss the claims against
them based on Plaintiff’s failure sufficiently to allege facts to support the claims. Plaintiff
claims that: (1) the Supervisory Defendants failed to train and supervise officers of the
Bibb County Sheriff’s Office in the proper use of force; and (2) Defendant Davis was
deliberately indifferent to Plaintiff’s medical needs. Plaintiff did not respond to the
Supervisory Defendant’s Motion to Dismiss.
“The Supreme Court has placed strict limitations on municipal liability under
section 1983. There is no respondeat superior liability making a municipality liable for the
wrongful actions of its police officers in…. Instead, a municipality may be held liable for
the actions of a police officer only when municipal “official policy” causes a constitutional
violation.” Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998) (citing Monell v.
Department of Social Servs., 436 U.S. 658, 691 (1978)). A municipality can only be held liable
“where the municipality inadequately trains or supervises its employees, this failure to
train or supervise is a city policy, and that city policy causes the employees to violate a
Plaintiff’s Complaint names “City of Macon,” “Bibb County, Georgia,” and “Macon-Bibb County Unified
Government” as Defendants. Effective January 1, 2014, the City of Macon and Bibb County were consolidated to form
Macon-Bibb County. See House Bill 1171, Section 1. Accordingly, the Court’s references to Macon-Bibb County
includes City of Macon, Bibb County, Georgia, and Macon-Bibb County Unified Government.
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citizen’s constitutional rights.” Id. “Only where a failure to train reflects a ‘deliberate’ or
‘conscious’ choice by a municipality…can a city be liable for such a failure under § 1983.”
Id. (quoting City of Canton v. Harris, 489 U.S. 378, 388-389 (1989). Accordingly, “[t]o
establish a ‘deliberate or conscious choice’ or such ‘deliberate indifference,’ a plaintiff
must present some evidence that the municipality knew of a need to train and/or
supervise in a particular area and the municipality made a deliberate choice not to take any
action.” Id. “A city may be put on notice in two ways. First, if the city is aware that a
pattern of constitutional violations exists, and nevertheless fails to provide adequate
training, it is considered to be deliberately indifferent. Alternatively, deliberate
indifference may be proven without evidence of prior incidents, if the likelihood for
constitutional violation is so high that the need for training would be obvious. ” Lewis v.
City of W. Palm Beach, Fla., 561 F.3d 1288, 1293 (11th Cir. 2009).
Plaintiff has failed sufficiently to allege facts showing that the Supervisory
Defendants were aware of a pattern of constitutional violations or that there was such a
high likelihood of a constitutional violation that there was an obvious need to train the
officers on the proper use of force. Rather, Plaintiff relies on conclusory allegations
that there was a policy or custom and that the Supervisory Defendants knew or should
have known that failure to train would result in a violation of Plaintiff’s constitutional
rights.
As explained above, the Court may not “accept the labels and legal conclusions in
the complaint as true.” Edwards, 602 F.3d at 1291. “Threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice” to state a
claim. Iqbal, 556 U.S. at 678.
With regard to Plaintiff’s claim that Defendant Davis was deliberately indifferent to
Plaintiff’s medical needs, Plaintiff must either (1) identify “an official policy or a widespread
practice or custom that, although not authorized by express municipal policy, is so settled
and permanent that it takes on the force of law” or (2) point to “a single decision made by a
municipal official if that municipal official is the final policymaker for the municipality with
respect to the subject matter in question.” Mandel v. Doe, 888 F.2d 783, 793 (11th Cir. 1989).
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Plaintiff has not identified an official policy, but appears to attempt to allege that Defendant
Davis made a single decision with respect to the alleged failure to provide medical care.
Plaintiff, however, fails to allege that Defendant Davis actually made a decision not to
provide medical care. Rather, he alleges that the ultimate responsibility lay with Davis
because he was the Sheriff. This allegation is insufficient to support a claim for deliberate
indifference under §1983.
Accordingly, Plaintiff’s claims against the Supervisory Defendants are subject to
dismissal.
CONCLUSION
Based on the forgoing, Defendant Gilbert’s and the Unnamed Defendants’ Motion
to Dismiss, (Doc. 12), is GRANTED; and a ll claims against Defendant Gilbert and the
Unnamed Defendants are DISMISSED. Furthermore, Defendants Macon-Bibb County,
Chief Burns, and Sheriff Davis’ Motion to Dismiss, (Doc. 4), is GRANTED; and all
claims against Defendants Macon-Bibb County, City of Macon, Georgia, Bibb County,
Georgia, Macon-Bibb County Unified Government, Chief Burns, and Sheriff Davis are
DISMISSED.
SO ORDERED, this 29th day of September, 2016.
/s/ Leslie J. Abrams
LESLIE J. ABRAMS, JUDGE
UNITED STATES DISTRICT COURT
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