BLASH v. CITY OF HAWKINSVILLE AND PULASKI COUNTY GEORGIA SHERRIF'S OFFICE et al

Filing 48

ORDER denying 38 Motion for Reconsideration. Ordered by US DISTRICT JUDGE TILMAN E SELF, III on 8/29/2018. (chc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
JOHNNY BLASH,
Plaintiff,
v.
CITY OF HAWKINSVILLE AND
PULASKI COUNTY, GEORGIA
SHERIFF’S OFFICE; HAWKINSVILLEPULASKI COUNTY, GEORGIA; BILLY
W. CAPE; and DANNY BRANNEN,

CIVIL ACTION NO.
5:17-cv-00380-TES

Defendants.
ORDER DENYING DEFENDANT BILLY CAPE’S
MOTION FOR RECONSIDERATION

Before the Court is Defendant Billy Cape’s Motion for Reconsideration [Doc. 38]
of the Court’s Order [Doc. 37] partially granting Defendant Cape’s Motion to Dismiss
[Doc. 11]. In that Order, the Court granted dismissal except as to Plaintiff’s Count 3, a
claim for race discrimination via 42 U.S.C. §§ 1981 and 1983 asserted against Defendant
Cape in his individual capacity. See [Doc. 37, at 25, 27]; see also [Doc. 1, at 14]. Defendant
Cape seeks reconsideration of the Court’s purported failure to fully dismiss the claims
against him. After conducting a telephone conference with the parties’ counsel, and after
another close examination of the record, the parties’ briefs, and the relevant legal
authorities, the Court denies Defendant Cape’s Motion for Reconsideration [Doc. 38].

MOTION FOR RECONSIDERATION STANDARD OF REVIEW
Pursuant to local rules, “[m]otions for reconsideration shall not be filed as a matter
of routine practice.” LR 7.6, MDGa. Accordingly, such motions are appropriate only if
Plaintiff demonstrates that “(1) there has been an intervening change in the law, (2) new
evidence has been discovered that was not previously available to the parties at the time
the original order was entered, or (3) reconsideration is necessary to correct a clear error
of law or prevent manifest injustice.” Bryant v. Walker, No. 5:10-CV-84, 2010 WL 2687590,
at *1 (M.D. Ga. July 1, 2010) (quoting Wallace v. Ga. Dep’t of Transp., No. 7:04-cv-78, 2006
WL 1582409, at *2 (M.D. Ga. June 6, 2006)). Evidently, Defendant Cape contends that the
“third factor is present in this matter.” [Doc. 38, at 4].
DISCUSSION
In his Motion to Dismiss [Doc. 11], Defendant Cape makes the blanket assertion
that he is entitled to qualified immunity. See [Doc. 11, at 8-11]. To that end, the Court
ruled, after considering the record before it and the arguments presented at the motionto-dismiss stage, that Plaintiff’s race discrimination claim in Count 3 shows some
entitlement to relief, “albeit barely.” [Doc. 37, at 23-24]. Defendant Cape’s Motion to
Dismiss [Doc. 11] is conventional in the sense that it presents the usual standard of review
centered around Federal Rule of Civil Procedure 12(b)(6)’s failure to state a claim and the
well-known pleading mandates under Twombly and Iqbal. [Doc. 11, at 2-3]. While these
standards are more akin to Defendant Cape’s substantive arguments for dismissal of
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Count 4 (Racial Harassment, 42 U.S.C. § 1981) and not Count 3, Defendant Cape asserts
that Plaintiff’s claim of race discrimination should be dismissed through the avenue of
qualified immunity rather than the traditional failure-to-state-a-claim avenue. See [Doc.
1, at 13-14].
Defendant Cape is correct that higher courts “have stressed” to district courts “the
importance of resolving immunity questions at the earliest possible stage of litigation.”
Pace v. Capobianco, 283 F.3d 1275, 1284 (11th Cir. 2002); see also [Doc. 38, at 4 (citing Marshall
Cty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993))]. “Qualified
immunity offers complete protection for government officials sued in their individual
capacities if their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable 1 person would have known.” Hollant v. City of North Miami,
17-24197-Civ-Scola, 2018 WL 3448096, at *5 (S.D. Fla. July 17, 2018) (quoting Kingsland v.
City of Miami, 382 F.3d 1220, 1231 (11th Cir. 2004) (emphasis added)). However, a
defendant is only entitled to a pre-trial dismissal on the basis of qualified immunity
“when the plaintiff has failed to allege a violation of a clearly established right.” Andreu v.
Sapp, 919 F.2d 637, 639 (11th Cir. 1990) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982))
(emphasis in original). Thus, “it is the plaintiff’s allegations that determine whether the
defendant is entitled to immunity because (as with all motions for judgment on the

“This objective-reasonableness test provides qualified immunity protection to ‘all but the plainly
incompetent or those who knowingly violate the law.’” Kirkland v. Mosaic Fertilizer, LLC, No. 8:14-CV-1715,
2015 WL 4042100, at *2 (M.D. Fla. July 1, 2015) (quoting Montoute v. Carr, 114 F.3d 181, 184 (11th Cir. 1997)).

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complaint or pleadings) the plaintiff’s factual allegations are taken as true.” Andreu, 919
F.2d at 639 (emphasis added); Fed. R. Civ. P. 12(b). If there is no allegation 2 of a violation
of a clearly established right “the defendant may be entitled to dismissal even before
discovery [unless] ‘substantial factual development’ is necessary before the court can
identify the set of facts implicating a clearly established right that the defendant has
allegedly violated.” Andreu, 919 F.2d at 639 (internal citation omitted). If factual
development is necessary, “the district court should defer ruling on the qualified
immunity issue.” Id. Even once the Court defers ruling on qualified immunity, qualified
immunity will be denied if there remain genuine issues of material fact. See Travers v.
Jones, 323 F.3d 1294, 1296 (11th Cir. 2003).
Defendant Cape correctly represents that once a government official proves that
he was engaged in a “discretionary duty” 3 the burden shifts 4 to Plaintiff “to establish the
inapplicability of qualified immunity.” Mercado v. City of Orlando, 407 F.3d 1152, 1156
(11th Cir. 2005); [Doc. 38, at 2]. However, “when there are issues of fact, such as these,

In this case, Plaintiff’s allegation appears to be that Defendant Cape “violated Plaintiff’s clearly established
federal right to be free from race discrimination and to work in a racially neutral workplace.” [Doc. 27, at
14].

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The parties do not dispute that Defendant Cape acted within his discretionary authority regarding his
decision to terminate Plaintiff. See [Doc. 1, at ¶¶ 13, 31].
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See Youmans v. Gagnon, 626 F.3d 557, 562 (11th Cir. 2010); see also [Docs. 11, at 8; 38, at 3 (citing Rushing v.
Parker, 599 F.3d 1263, 1265-66 (11th Cir. 2010) (“In order to defeat the government official’s qualified
immunity defense, the plaintiff must prove that (1) the official violated h[is] federal constitutional or
statutory rights, and (2) that those rights were clearly established at the time the officer acted.”) (internal
quotations omitted))].
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qualified immunity must be denied because the court, at this stage of the proceedings,
must view the facts most favorable to the plaintiff.” Travers, 323 F.3d at 1296.
Under Plaintiff’s version of the facts, Defendant Cape’s failure to undertake an
independent investigation regarding Plaintiff’s alleged criminal actions, by extension,
ultimately led to Plaintiff’s discharge because of his race. See [Doc. 1, at ¶¶ 7, 23-27, 43]. If
Plaintiff proves that Defendant Cape fired him because he is black, then he can easily show
a clear constitutional violation. However, Defendant Cape contends that Plaintiff cannot
allege a violation of a clearly established right because “it was not clearly established that
former Sheriff Cape could be held liable for terminating a Deputy Sheriff accused of
interfering with a federal criminal investigation eight (8) days before his termination.”
However, this ignores Plaintiff’s main contention—and the version of allegations that the
Court must accept as true—that Defendant Cape fired him because of his race.
Defendant Cape characterized his own qualified immunity arguments in support
of the dismissal of Count 3 as “discrete.” [Doc. 38, at 2]. Due to the narrow focus of the
Court’s inquiry, mandated by the requirement to accept Plaintiff’s allegation as true, the
Court cannot—at this early stage—grant qualified immunity. Given Defendant Cape’s
mere recitation of qualified immunity law, and accepting Plaintiff’s allegations as true,
the record does not demand that Defendant Cape’s decision to terminate was
“indisputably motived by lawful considerations.” [Doc. 38, at 2]; see also [Doc. 11, at 9
(citing Rioux v. City of Atlanta, 520 F.3d 1269, 1283 (11th Cir. 2008); Foy v. Holston, 94 F.3d
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1528, 1534 (11th Cir. 1996))]. While, as Defendant Cape contends, “an adequate lawful
motive [may have been] present” in his decision to terminate Plaintiff, it must be
“undisputed that the employment action was motivated, at least in part, by lawful
considerations.” [Doc. 11, at 9 (emphasis added) (citing Rioux, 520 F.3d at 1283)].
However, where [the lawful motive] is disputed, the case retains the possibility of being
a pretext case—objectively valid reasons for termination exist but did not motivate the
termination.” Pattee v. Georgia Ports Auth., 477 F. Supp. 2d 1253, 1267 (S.D. Ga. 2006)
(citing Stanley v. City of Dalton, 219 F.3d 1280, 1296 (11th Cir. 2000)).
CONCLUSION
Again, accepting Plaintiff’s complaint as true, it is clear that the Court may not
grant Defendant Cape qualified immunity at this time. After the discovery period, the
Defendant may make a motion for summary judgment and the Court will consider the
issue at that time based upon more developed record. Accordingly, the Court DENIES
Defendant Cape’s Motion for Reconsideration [Doc. 38].
SO ORDERED, this 29th day of August, 2018.
S/ Tilman E. Self, III
TILMAN E. SELF, III, JUDGE
UNITED STATES DISTRICT COURT

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