ROBERSON v. GEORGIA DEPARTMENT OF CORRECTIONS et al

Filing 32

ORDER GRANTING 22 and 23 Motions to Dismiss. This case is DISMISSED without prejudice. Ordered by US DISTRICT JUDGE TILMAN E SELF, III on 10/10/2019. (ech)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
DENNIS ROBERSON,
Plaintiff,
v.
GEORGIA DEPARTMENT OF
CORRECTIONS, et al.,

CIVIL ACTION NO.
5:19-cv-00201-TES

Defendants.
ORDER GRANTING MOTIONS TO DISMISS

Nine plaintiffs filed virtually identical complaints following an incident
involving the June 13, 2017, murder of two Georgia Department of Corrections officers,
Sgt. Christopher Monica and Sgt. Curtis Billue. [Doc. 6 at ¶¶ 3, 6, 47]. Plaintiff Dennis
Roberson, an individual formerly 1 in the custody of the Georgia Department of
Corrections, filed the third of those nine cases, and it is now before the Court on
Defendants’ Motions to Dismiss [Docs. 22, 23]. The Georgia Department of Corrections

Using the “Find an Offender” query on the Georgia Department of Corrections website, the search terms
“Roberson, Dennis” yielded no results. Thus, the Court concludes that Plaintiff is no longer in custody.
Georgia Department of Corrections, http://www.dcor.state.ga.us/GDC/Offender/Query, (last visited Oct.
8, 2019); see also [Doc. 6 at ¶ 2 (“Roberson was an inmate housed by the Georgia Department of
Corrections on June 13, 2017.”)].
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(“GDC”) 2 filed the first dismissal motion, and the individual GDC employees Plaintiff
named in his Second Amended Complaint, [Doc. 6], filed the second. As explained
below, the Court GRANTS both Motions.
FACTUAL BACKGROUND
The facts of this case are simple. Plaintiff was one of many GDC inmates
allegedly injured on a prison transport bus when Sgt. Monica and Sgt. Billue were
overpowered and shot with their own weapons by inmates Donnie Rowe and Ricky
Dubose. [Doc. 6 at ¶¶ 2, 6–7]. Rowe and Dubose subsequently fled the scene and
escaped before being apprehended in Tennessee. [Id. at ¶¶ 7, 34, 47, 49]. Plaintiff states
that he sustained physical injuries to his head and back when he slipped and fell trying
to avoid the violence on the prison bus and during his removal from the prison bus
through its rear emergency window. [Id. at ¶ 6]. As a result of witnessing the shootings
and his subsequent 43-day placement in administrative segregation while the shootings
were being investigated, Plaintiff alleges that he “suffered Post Traumatic Stress
Syndrome and other psychiatric maladies yet to be identified.” [Id. at ¶¶ 4, 6–7].
Generally speaking, Plaintiff casts his factual allegations as violations of the
Eighth Amendment of the United States Constitution, Georgia law, and GDC rules and

Baldwin State Prison, Hancock State Prison, and the Georgia Diagnostic and Classification Prison are
not separate legal entities but are units of the Georgia Department of Corrections, and the Court,
consistent with the parties’ language, refers to these Defendants collectively as “GDC.” [Doc. 22-1 at p. 1];
see, e.g., [Doc. 28 at p. 6 (“The GDC has filed a Motion to Dismiss . . . .”)].

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regulations. [Doc. 6 at ¶ 45]. However, after a broad reading of Plaintiff’s Second
Amended Complaint, Defendants refined Plaintiff’s claims as state-law tort claims and
claims under 42 U.S.C. § 1983, and Plaintiff never contends otherwise. [Doc. 22-1 at p.
2]; [Doc. 23-1 at p. 2]. Based on his purported injuries, Plaintiff seeks at least $250,000 in
damages for negligence, deliberate indifference, and Defendants’ alleged failure to
follow GDC rules and regulations. [Doc. 6 at ¶ 45]; see also [id. at p. 30].
DISCUSSION
A.

Standard of Review

Defendants seek dismissal of Plaintiff’s claims pursuant to Federal Rules of Civil
Procedure 12(b)(1) and (6). With regard to Rule 12(b)(1) jurisdictional motions, attacks
on subject-matter jurisdiction come in two forms, “facial” and “factual” attacks.
Lawrence v. Dunbar, 919 F.2d 1525, 1528–29 (11th Cir. 1990). Facial attacks challenge
subject-matter jurisdiction based on the allegations in a complaint. Id. at 1529. District
courts take those allegations as true in deciding whether to grant motions based on a
lack of subject-matter jurisdiction. Id. Factual attacks challenge subject-matter
jurisdiction in fact, irrespective of the pleadings. Id. In resolving a factual attack, courts
may consider extrinsic evidence such as testimony and affidavits. Id. Defendants’
Motions under Rule 12(b)(1) are based upon a lack of subject-matter jurisdiction, and
Defendants argue that they are entitled to immunity under the Eleventh Amendment
and Georgia law.

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When deciding a 12(b)(6)-based motion, district courts must accept the facts set
forth in a complaint as true. Bell Atl. Corp. v. Twombly, 550 U.S. at 555 (2007). A
complaint survives a motion to dismiss only if it alleges sufficient factual matter
(accepted as true) that states a claim for relief that is plausible on its face. McCullough v.
Finley, 907 F.3d 1324, 1333 (11th Cir. 2018) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678–79
(2009)). Although Federal Rule of Civil Procedure 8 does not require detailed factual
allegations, it does require “more than [ ] unadorned, the-defendant-unlawfullyharmed-me accusation[s].” McCullough, 907 F.3d at 1333 (citation omitted). To decide
whether a complaint survives a motion to dismiss, district courts are instructed to use a
two-step framework. Id. The first step is to identify the allegations that are “no more
than mere conclusions.” Id. (quoting Iqbal, 556 U.S. at 679). “Conclusory allegations are
not entitled to the assumption of truth.” Id. (citation omitted). After disregarding the
conclusory allegations, the second step is to “assume any remaining factual allegations
are true and determine whether those factual allegations ‘plausibly give rise to an
entitlement to relief.’” Id. (quoting Iqbal, 556 U.S. at 679).
“A plaintiff must plead more than labels and conclusions or a formulaic
recitation of the elements of a cause of action.” McCullough, 907 F.3d at 1333 (internal
quotations omitted); see also Twombly, 550 U.S. at 555. “To be sure, a plaintiff may use
legal conclusions to structure his complaint, but legal conclusions ‘must be supported
by factual allegations.’” McCullough, 907 F.3d at 1333 (quoting Iqbal, 556 U.S. at 679).

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While courts, in ruling on a motion to dismiss, must take all of the factual allegations in
the complaint as true; they are not bound to accept a legal conclusion couched as a
factual allegation. Iqbal, 556 U.S. at 678. Courts must “identify conclusory allegations
and then discard them—not ‘on the ground that they are unrealistic or nonsensical’ but
because their conclusory nature ‘disentitles them to the presumption of truth.’”
McCullough, 907 F.3d at 1333 (quoting Iqbal, 556 U.S. at 681).
Ultimately, the issue to be decided when considering a motion to dismiss is not
whether the claimant will ultimately prevail, but “whether the claimant is entitled to
offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974),
overruled on other grounds by Davis v. Scheuer, 468 U.S. 183 (1984). A complaint tendering
“‘naked assertion[s]’ devoid of ‘further factual enhancement’” will not survive against a
motion to dismiss; it must allege enough facts “to raise a reasonable expectation that
discovery will reveal evidence” supporting a claim. Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 557) (alteration in original); see also Twombly, 550 U.S. at 556.
Finally, “if [a] complaint contains a claim that is facially subject to an affirmative
defense, that claim may be dismissed under Rule 12(b)(6). LeFrere v. Quezada, 582 F.3d
1260, 1263 (11th Cir. 2009). In applying the foregoing standard, and taking the facts
asserted in Plaintiff’s Second Amended Complaint as true, the Court rules on
Defendants’ Motions to Dismiss.

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B.

GDC’s Motion to Dismiss

As previously stated, Defendant GDC sets forth two main bases for dismissal: (1)
that it is immune from suit in this Court under both the United States and Georgia
Constitutions, and (2) that Plaintiff’s state-law claims are further barred by the Georgia
Tort Claims Act (“GTCA”). [Doc. 22-1 at pp. 4–13]. Given that GDC is undeniably
immune from suit on Plaintiff’s claims, the Court need not discuss GDC’s proceduralrelated arguments under the GTCA.
Rather than address GDC’s specific arguments related to its immunity, Plaintiff
argued that he should be permitted to take 90–150 days for discovery, the results of
which, he asserts, would enable him “to substantiate his claims,” to determine “the real
party of interest,” and “to properly present his position [in] response to [Defendants’]
Motion to Dismiss.” [Doc. 28 at pp. 3, 5]. Plaintiff’s argument that GDC “has offered no
evidence as to the real party of interest,” appears to reference the Eleventh
Amendment’s bar to suits where the state is “the real party in interest or when any
monetary recovery would be paid from state funds.” [Doc. 30 at p. 2 (quoting Kentucky
v. Graham, 473 U.S. 159, 169 (1985))]; [Doc. 28 at p. 5]. Interpreted broadly, Plaintiff’s
argument is perhaps an assertion that discovery would determine whether the State of
Georgia is the real party in interest regarding suits against GDC.
However, as GDC correctly states, that question is “well-settled in this circuit.”
[Doc. 30 at p. 2]. In Stevens v. Gay, the Eleventh Circuit Court of Appeals unequivocally

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determined that Section 1983 claims cannot proceed against GDC. 864 F.2d 113, 115
(11th Cir. 1989) (finding in a Section 1983 lawsuit that “[t]he Eleventh Amendment bars
this action against the Georgia Department of Corrections”). Accordingly, Plaintiff’s
Section 1983 claims against GDC are barred.
Plaintiff’s state-law claims against GDC are also barred by state sovereign
immunity. The State of Georgia has waived sovereign immunity for certain claims
against it but not for assault and battery. O.C.G.A § 50-21-24(7) (“The state shall have no
liability for losses resulting from assault [or] battery . . . .”). Thus, to the extent Plaintiff
asserts assault and battery claims, they are barred by state sovereign immunity.
Furthermore, even if Plaintiff attempted to assert a negligence claim arising from
injuries he received as a result of some assault or battery, state sovereign immunity also
bars such a claim. The Georgia courts have explained that where “a plaintiff’s injury
was caused by an assault and battery committed by a third party, the state is immune
from suit even if the assault and battery was facilitated by or resulted from the prior
negligent performance of a state officer or employee.” Pelham v. Bd. of Regents of Univ.
Sys. of Ga., 743 S.E.2d 469, 473 (Ga. Ct. App. 2013) (citing Youngblood v. Gwinnett Rockdale
Newton Comm. Serv. Bd., 545 S.E.2d 875, 878 (Ga. 2001)). Therefore, neither Plaintiff’s
federal nor state-law claims against GDC can proceed and GDC’s Motion to Dismiss
[Doc. 22] is GRANTED.

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C.

Individual Defendants’ Motion to Dismiss

In their Motion, Defendants Gregory C. Dozier, Ricky Myrick, Clay Nix, Timothy
C. Ward, Jack Randall Sauls, Trevonza Bobbitt, Eric Sellers, Annettia Toby, and Jay
Sanders (collectively, the “Individual Defendants”) argue that Plaintiff failed to exhaust
his administrative remedies under the Prison Litigation Reform Act of 1995, 42 U.S.C. §
1997e(a) (“PLRA”). [Doc. 23-1 at pp. 5–8]. However, as discussed above, Plaintiff is no
longer in prison, and because the PLRA “only applies when [a] plaintiff is confined in a
correctional facility when the lawsuit is commenced,” his Second Amended Complaint
is not subject to administrative exhaustion. Q.F. v. Daniel, 768 F. App’x 935, 938 (11th
Cir. 2019) (citing Harris v. Garner, 216 F.3d 970, 974 (11th Cir. 2000) (“It is confinement
status at the time the lawsuit is ‘brought,’ i.e., filed, that matters.”)). Nevertheless,
Plaintiff’s Section 1983 claims against the Individual Defendants in their official
capacities, or “representative capacities” as Plaintiff states, are due to be dismissed
pursuant to the Eleventh Amendment, and the Section 1983 claims asserted against
them in their individual capacities are due to be dismissed under the protections of
qualified immunity and for failure to state a claim. See, e.g., [Doc. 6 at p. 8]. With respect
to the state-law claims Plaintiff asserts against the Individual Defendants, those claims
are likewise subject to dismissal under Georgia law.

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1.

Plaintiff’s Section 1983 Claims

When a court considers a claim asserted via Section 1983, it must first identify the
specific constitutional right allegedly infringed, and then determine the validity of the
claim “by reference to the specific constitutional standard . . . govern[ing] that right.”
Albright v. Oliver, 510 U.S. 266, 271 (1994); Graham v. Connor, 490 U.S. 386, 394 (1989). As
with most litigation involving prisons, the Section 1983 claims in this case fall under the
Eighth Amendment’s standard for deliberate indifference and the Fourteenth
Amendment’s standards governing due process.
However, an order that embarks on the substance of Plaintiff’s deliberate
indifference claim in this case would be rendered useless in light of the immunities
available to the Individual Defendants. The Eleventh Amendment states: “The Judicial
power of the United States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by Citizens of another State,
or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. Controlling
interpretations of the Eleventh Amendment firmly “establish that an unconsenting
[s]tate is immune from suits brought in federal courts by her own citizens as well as by
citizens of another state.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100
(1984) (citation omitted). Eleventh Amendment immunity equally applies to a state’s
agencies and departments. Id. Further, Eleventh Amendment immunity “remains in
effect when [s]tate officials are sued for damages in their official capacity.” Graham, 473

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U.S. at 169. The Eleventh Amendment bars Section 1983 suits absent state waiver of
immunity or congressional override. Will v. Mich. Dep't of State Police, 491 U.S. 58, 66
(1989). Accordingly, because the State of Georgia does “not waive any immunity with
respect to actions brought in the courts of the United States,” O.C.G.A. § 50-21-23(b), the
Court finds that Eleventh Amendment immunity is applicable in this case, and
Plaintiff’s Section 1983 claims against the Individual Defendants in their official
capacities must be dismissed.
As for the claims asserted against the Individual Defendants in their individual
capacities, they argue that they are entitled to qualified immunity. “Qualified immunity
shields government officials acting within their discretionary authority from liability
unless the officials ‘violate clearly established statutory or constitutional rights of which
a reasonable person would have known.’” Franklin v. Curry, 738 F.3d 1246, 1249 (11th
Cir. 2013) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In deciding whether 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 [a]
plaintiff’s favor.” Davis v. Carter, 555 F.3d 979, 981 (11th Cir. 2009) (quoting Dalrymple v.
Reno, 334 F.3d 991, 994 (11th Cir. 2003)).
The test for qualified immunity is two pronged. First, “[a] defendant who asserts
qualified immunity has the initial burden of showing he was acting within the scope of
his discretionary authority when he took the allegedly unconstitutional action.” Gates v.

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Khokhar, 884 F.3d 1290, 1297 (11th Cir. 2018). Then, if a defendant makes this showing,
“the burden shifts to the plaintiff to establish that qualified immunity 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 clearly established at the time of the alleged
misconduct.” Id. Here, Plaintiff’s Second Amended Complaint alleges that the
Individual Defendants were acting within the scope of their duties and authority as
GDC officials or employees at all relevant times. [Doc. 6 at ¶¶ 16–24]. Thus, the first
prong has been met, and it is incumbent on Plaintiff to show that qualified immunity is
inappropriate, because the Individual Defendants violated clearly-established law.
In short, Plaintiff does not and cannot make this showing. “A right is clearly
established if ‘at the time of the incident, the preexisting law dictates, that is, truly
compel[s], the conclusion for all reasonable, similarly situated public officials that what
[the officer] was doing violated [a plaintiff’s] federal rights in the circumstances.’”
Woodyard v. Ala. Dep’t of Corrs., 700 F. App’x 927, 931 (11th Cir. 2017) (per curiam)
(alterations in original) (quoting Marsh v. Butler Cty., 268 F.3d 1014, 1030–31 (11th Cir.
2001) (en banc), abrogated on other grounds by Twombly, 550 U.S. at 561–63). To determine
“whether a particular constitutional violation is clearly established, [the Court] look[s]
to [Eleventh Circuit] binding precedent, the binding precedent of the Supreme Court,
and the binding precedent of the ‘highest court in the state where the action is filed.’”
Id. at 932 (quoting Merricks v. Adkisson, 785 F.3d 553, 560 (11th Cir. 2015)).

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To begin, Plaintiff’s Second Amended Complaint stresses, over and over, that all
of the Individual Defendants’ positions and responsibilities within GDC carry
supervisory characteristics. [Doc. 6 at ¶¶ 16–24]. Plaintiff alleges that the Individual
Defendants, as supervisors, violated the Constitution because they failed to protect him,
despite knowing of “an unstated ‘history of violence’” and various violations of GDC
policy by Sgts. Monica and Billue. [Doc. 23-1 at p. 2 (citing [Doc. 6 at ¶¶ 8, 40–45, 49])].
In the context of a failure to protect claim, “[a] prison official’s deliberate indifference to
a known, substantial risk of serious harm to an inmate violates” the Constitution. Keith
v. DeKalb Cty., 749 F.3d 1034, 1047 (11th Cir. 2014) (quoting Marsh, 268 F.3d at 1028). To
show that an official was deliberately indifferent to such a risk, a plaintiff must show:
“(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by
conduct that is more than gross negligence.” Franklin, 738 F.3d at 1250 (quoting
Goodman v. Kimbrough, 718 F.3d 1325, 1331-32 (11th Cir. 2013)).
However, “[i]t is well established in this Circuit that supervisory officials are not
liable under [Section] 1983 for the unconstitutional acts of their subordinates on the
basis of respondeat superior or vicarious liability.” Cottone v. Jenne, 326 F.3d 1352, 1360
(11th Cir. 2003) (quoting Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999)).
Therefore, a plaintiff seeking to hold a supervisor liable for constitutional violations
must show either that “the supervisor personally participate[d] in the alleged
unconstitutional conduct or [that] there is a causal connection between the actions of

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[the] supervising official and the alleged constitutional deprivation.” Id. Here, as the
Individual Defendants point out—of the few, specific allegations of first-hand
knowledge stated in Plaintiff’s Second Amended Complaint, such allegations are
attributed to unknown “personnel,” not any specific Individual Defendant. [Doc. 6 at ¶
29]. It seems that Plaintiff is alleging the existence of some sort of “chain of command”
in which some unknown GDC “personnel” (who had supposedly been notified by Sgt.
Billue of Sgt. Monica’s policy violations) immediately reports the violation to the
Individual Defendants who in turn “failed to correct” it. [Id.].
Plaintiff’s Second Amended Complaint, as it is written, never alleges that any of
the Individual Defendants were present at the time of the shootings. As far as we know,
only Sgts. Monica and Billue were there, because he never even names the actual GDC
personnel or officers who supposedly pulled him from the rear emergency window of
the prison bus. [Id. at ¶ 6]. Instead, Plaintiff only names those individuals with
supervisory responsibilities, thus he cannot show that any Individual Defendant
personally participated in any alleged unconstitutional conduct. Therefore, in order to
bring claims against them, he must show a causal connection between their actions and
the deprivation of his constitutional rights. This causal connection can be shown one of
three ways: (1) by showing that “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”; (2) by showing that “a supervisor’s custom or policy . . . result[s] in deliberate

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indifference to constitutional rights”; or (3) by pointing to “facts [that] support an
inference that the supervisor directed the subordinates to act unlawfully or knew that
the subordinates would act unlawfully and failed to stop them from doing so.” Cottone,
326 F.3d at 1360 (quoting Gonzalez v. Reno, 325 F.3d 1228, 1234–35 (11th Cir. 2003)). “The
standard by which a supervisor is held liable in [his] individual capacity for the actions
of a subordinate is extremely rigorous.” Id. at 1361 (quoting Gonzalez, 325 F.3d at 1234).
The allegations in Plaintiff’s Second Amended Complaint do not show a clearly
established causal connection under any of the three theories.
First, Plaintiff’s allegations do not support a finding that a history of widespread
abuse put the Individual Defendants on notice of the need to correct the alleged
deprivation. “The deprivations that constitute widespread abuse sufficient to notify the
supervising official must be obvious, flagrant, rampant and of continued duration,
rather than isolated occurrences.” Keith, 749 F.3d at 1048 (quoting Hartley, 193 F.3d at
1269). As previously stated, Plaintiff’s Second Amended Complaint does not allege or
show that any Individual Defendant was personally involved with the unfortunate
incident in this case. Moreover, and most notably, Plaintiff’s Second Amended
Complaint is completely void of a previous allegation regarding an incident like this
one. Plaintiff’s allegations, at most, detail only GDC policy violations (or negligence),
see, e.g., [Doc. 6 at ¶ 16, 27, 43], and it is well-established that negligence and mere
policy violations, standing alone, are insufficient to impose liability under Section 1983.

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See Cagle v. Sutherland, 334 F.3d 980, 986–87 (11th Cir. 2003) (a violation of a policy does
not establish deliberate indifference); Goodman, 718 F.3d at 1332 (“Merely negligent
failure to protect an inmate from attack does not justify liability under [Section] 1983.”).
As to the first theory of showing a causal connection, Plaintiff’s Second Amended
Complaint makes no allegations that the Individual Defendants had been placed on
notice of prior incidents or other security breaches during inmate transports in
connection with Sgt. Monica’s GDC policy violations. Without even the barest
allegation of similar instances, Plaintiff certainly cannot establish widespread incidents
of the type required by law to impart supervisory liability on the Individual
Defendants.
Similarly, Plaintiff’s Second Amended Complaint does not point to a policy or
custom that the Individual Defendants allowed resulting in deliberate indifference.
Although, as the Individual Defendants candidly point out, Plaintiff’s Second Amended
Complaint does allege that the Individual Defendants “knew that the rules and
regulations of the GDC were, in part, to confine and protect prisoners and that
violations of such rules and regulations threaten prisoners and guards and put them in
danger,” such allegation is essentially a factually-unsupported legal conclusion and is
insufficient under the standard discussed above. See Iqbal, 556 U.S. at 678, supra; see, e.g.,
[Doc. 6 at ¶ 17]. In order for supervisor liability to attach based on a policy or custom, it
must be alleged, and ultimately proved, that it was the supervisor’s own policy or

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custom that caused the alleged constitutional deprivation. See Zatler v. Wainwright, 802
F.2d 397, 401 (11th Cir. 1986) (“An official may also be liable where a policy or custom
that he established or utilized results in deliberate indifference to an inmate’s
constitutional rights.”). To the extent Plaintiff contends that the Individual Defendants
simply tolerated or allowed certain customs to continue, such contention is no more
than an allegation of negligence simply suggesting that they failed to react to Sgt.
Monica’s own alleged policy or custom, rather than to the imposition of some policy or
custom they created themselves. And, as previously discussed, negligence is not a basis
for liability under Section 1983. Goodman, 718 F.3d at 1332. Without such personal
involvement, the Individual Defendants may not be held liable. See Iqbal, 556 U.S. at 676
(“Because vicarious liability is inapplicable to . . . [Section] 1983 suits, a plaintiff must
plead that each [g]overnment-official defendant, through the official’s own individual
actions, has violated the Constitution.”); see also Brown v. Smith, 813 F.2d 1187, 1188
(11th Cir. 1987) (“A [Section] 1983 claim cannot be based on vicarious liability.”).
Aside from any pattern of widespread abuse or any custom or policy, Plaintiff
makes no allegation that any Individual Defendant was subjectively aware that this
incident was likely to occur and, in spite of that awareness, failed to prevent its
occurrence. “[T]o be deliberately indifferent[,] a prison official must know of and
disregard an excessive risk to inmate health or safety; the official must both be aware of
facts from which the inference could be drawn that a substantial risk of serious harm

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exists, and he must also draw the inference.” Franklin, 738 F.3d at 1250 (emphasis in
original) (quoting Goodman, 718 F.3d at 1332). “Whether a prison official had the
requisite knowledge of a substantial risk is a question of fact subject to demonstration in
the usual ways, including inference from circumstantial evidence.” Bowen v. Warden
Baldwin State Prison, 826 F.3d 1312, 1321 (11th Cir. 2016) (quoting Farmer v. Brennan, 511
U.S. 825, 842 (1994)). “The trier of fact may, therefore, ‘conclude that a prison official
knew of a substantial risk from the very fact that the risk was obvious.’” Id. (quoting
Farmer, 511 U.S. at 842). “Nevertheless, it is only a heightened degree of culpability that
will satisfy the subjective knowledge component of the deliberate indifference standard,
a requirement that ‘is far more onerous than normal tort-based standards of conduct
sounding in negligence.’” Id. (quoting Goodman, 718 F.3d at 1332).
Typically, courts find that an official had the requisite knowledge of a risk of
harm when the official knows about things like rumors or complaints that an assailant
previously assaulted someone or had some other tendency to commit harm. See, e.g.,
Bowen, 826 F.3d at 1321–22 (finding officers were deliberately indifferent to the risk of
inmate-on-inmate assault where they were aware that the assaulting inmate “had
committed a ‘High-Assault’ against his previous cellmate,” “was a severe paranoid
schizophrenic who suffered from violent delusions, auditory hallucinations, and
impulsive tendencies,” had been convicted of murder, and was being housed in a cell
with another inmate contrary to prison guidelines).

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In Franklin, the Eleventh Circuit Court of Appeals held that imputing knowledge
based on a supervisor’s position does not show deliberate indifference. 738 F.3d at 1246.
Where a plaintiff puts forth only “the names and titles of . . . [s]upervisory [d]efendants,
but alleges nothing about the significance of their titles . . . or any other characteristics
that would bear on whether they knew about but were deliberately indifferent to [an
inmate’s] conduct and the risk he posed,” a showing of deliberate indifference is
unlikely. Id. at 1251–52. While Plaintiff’s Second Amended Complaint claims that each
Individual Defendant held a supervisory role at GDC and provides general descriptions
of their responsibilities, it does not set forth any personal interaction between or
familiarity with those directly involved in this incident. [Doc. 6 at ¶¶ 16–24, 31, 33, 40].
Based not only on the fact that this was a single, isolated event (with no
allegation that anything like it had occurred in the past), but also on the fact that
Plaintiff’s Second Amended Complaint provides no factual details or allegations
concerning a personal familiarity by any Individual Defendant regarding any rumor of
inmate Rowe and Dubose’s plans, there can be no plausible inference that they were
subjectively aware of a substantial risk of serious harm to Plaintiff, that they
disregarded that risk, and caused the harm Plaintiff alleges.
After a careful review of Plaintiff’s Second Amended Complaint and the
applicable law, the Court finds that he has failed to allege sufficient facts to demonstrate
that the Individual Defendants violated clearly established law with regard to a claim of

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deliberate indifference. Accordingly, the Individual Defendants are entitled to the
protections afforded by qualified immunity as to Plaintiff’s Eighth Amendment
deliberate indifference (failure to protect) claim asserted against them in their
individual capacities.
Likewise, Plaintiff’s Eighth Amendment conditions of confinement claim is also
without merit, because his Second Amended Complaint fails to allege that his
conditions during his placement in administrative segregation for 43 days violated the
“minimal civilized measure of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347
(1981). Further, to the extent Plaintiff takes issue with the procedure used in placing
him in administrative segregation and asserts due process violations, they are due to be
dismissed as well.
The Supreme Court’s interpretation of the Fourteenth Amendment’s Due Process
Clause “explicates that the amendment provides two different kinds of constitutional
protection: procedural due process and substantive due process.” McKinney v. Pate, 20
F.3d 1550, 1555 (11th Cir. 1994) (en banc). It is true that states may—under certain
circumstances—create liberty interests deserving of protection by the Due Process
Clause, but in order to state a cognizable claim for deprivation of procedural due
process rights under the Fourteenth Amendment, an inmate must allege, inter alia, a
“constitutionally inadequate process.” Sandin v. Conner, 515 U.S. 472, 483–84 (1995); see

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also Shaarbay v. Palm Beach Cty. Jail, 350 F. App’x 359, 361 (11th Cir. 2009) (citing Cryder
v. Oxendine, 24 F.3d 175, 177 (11th Cir, 1994)).
A procedural due-process claim requires three elements: (1) a deprivation of a
constitutionally protected liberty or property interest; (2) state action; and (3)
constitutionally inadequate process. Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir.
2003). As the Individual Defendants argue, Plaintiff’s allegations do not establish any of
the three elements. [Doc. 23-1 at pp. 16–19]. Most importantly, there are no allegations
of state action alleging personal participation by any Individual Defendant. The only
reasonable inference to that effect could be Plaintiff’s allegation that the prison warden,
Defendant Eric Sellers, is somehow liable for his “fail[ure] to intervene” and remove
Plaintiff from administrative segregation. [Doc. 6 at ¶ 23]. However, because there are
no allegations or claims in Plaintiff’s Second Amended Complaint that he was denied
notice or an opportunity to be heard, he fails to state a procedural due-process claim. 3
Clearly, the Individual Defendants placed Plaintiff in administrative segregation
during the pendency of the investigation related to the shootings on June 13, 2017, thus
any due process claim—to the extent one is even alleged—fails because Plaintiff did not
even attempt to make factual allegations that GDC failed to give him any opportunity

In Hewitt v. Helms, the Supreme Court described, albeit in dicta, what process is due from prison officials
making administrative-segregation determinations when a liberty interest is at stake. 459 U.S. 460 (1983).
When the initial confinement decision is contemplated or made, whether for institutional safety reasons
or to separate the prisoner pending an investigation, the prisoner must “receive some notice of the
charges against him and an opportunity to present his views,” whether at a hearing or in writing. Id. at
476.

3

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to present his views—he merely states that he was “held in [administrative segregation]
to an extreme and prolonged time (43 days) with no justification of same.” [Doc. 6 at ¶
4].
Regardless, prisoners have “no constitutionally protected liberty interest in being
classified at a certain security level or housed in a certain prison.” Kramer v. Donald, 286
F. App’x 674, 676 (11th Cir. 2008) (per curiam). However, a prisoner has a protected
liberty interest that is violated by placement in punitive segregation when the
placement “will inevitably affect the duration of his sentence” or “imposes atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison life.”
Sandin v. Conner, 515 U.S. 472, 484, 486 (1995). Because there is no evidence to suggest
the latter, Chapman, 452 U.S. at 347, supra, and given that Plaintiff is no longer in
custody, with regard to the former, he fails to state a viable due process claim with
respect to GDC’s investigation of the shootings.
2.

Plaintiff’s State-Law Claims

Absent an express waiver, the Eleventh Amendment “bars suits brought in
federal court when the State itself is sued [or] when an ‘arm of the State’ is sued.”
Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003) (en banc). “Likewise, the Eleventh
Amendment bars federal suits against state officials in their ‘official capacity’ because
such actions seek recovery from state funds.” Hobbs v. Roberts, 999 F.2d 1526, 1528 (11th
Cir. 1993). As the Court previously found, the Individual Defendants are “arms of the

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state” with regard to their duties as GDC officers, and are therefore, state officials.
Accordingly, the Eleventh Amendment bars Plaintiff’s state-law claims against the
Individual Defendants in their official capacities unless Georgia expressly waived its
immunity. In Georgia, sovereign immunity “can be waived only by a legislative act
specifically delineating the waiver.” Polite v. Doughtery Cty. Sch. Sys., 314 F. App’x 180,
184 (11th Cir. 2008) (per curiam) (citing Ga. Const. Art. 1, § 2 ¶ IX(e)).
The Georgia Tort Claims Act (“GTCA”) provides a limited waiver of the state’s
sovereign immunity for actions alleging torts committed by state officers or employees;
however, it does not waive the state’s sovereign immunity for tort actions brought
against the state in federal court. O.C.G.A. § 50-21-23(b) (noting the state’s waiver
extends “only with respect to actions brought in the courts of the State of Georgia” and
explaining “[t]he state does not waive any immunity with respect to actions brought in
the courts of the United States”). Therefore, the Individual Defendants are immune in
their individual capacities from suit in federal court as to Plaintiff’s state-law claims.
As to the state-law claims asserted against the Individual Defendants in their
individual capacities, the Eleventh Amendment does not provide a shred of protection.
“[T]he Eleventh Amendment does not protect state employees sued in their individual
capacity for employment-related acts.” Jackson v. Ga. Dep't of Transp., 16 F.3d 1573, 1575
(11th Cir. 1994). However, the Individual Defendants maintain that the GTCA,

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nonetheless, provides them with immunity on Plaintiff’s state-law claims against them
in their individual capacities. [Doc. 23-1 at pp. 4–5]. They are correct.
Pursuant to the GTCA, “[a] state officer or employee who commits a tort while
acting within the scope of his or her official duties or employment is not subject to
lawsuit or liability therefor.” O.C.G.A. § 50-21-25(a). This immunity applies even when
the officer is accused of committing unauthorized torts that are intentional or malicious.
See Ridley v. Johns, 552 S.E.2d 853, 854 (Ga. 2001) (“Since there is no exemption [in
O.C.G.A. § 51-21-25(a)] for acts motivated by malice or an intent to injure, the presence
of such a motivation has no effect on the immunity granted by the statute.”). Georgia
law further provides that tort claimants must “name as a party defendant only the state
government entity for which the state officer or employee was acting and shall not
name the state officer or employee individually.” O.C.G.A. § 50-21-25(b). In other
words, if a state officer or employee is sued for a tort committed while acting within the
scope of his or her official duties or employment, “the state government entity for
which the state officer or employee was acting must be substituted as the party
defendant.” Id.; see also Riddle v. Ashe, 495 S.E.2d 287 (Ga. 1998) (quoting O.C.G.A. § 5021-25(a) (“[N]othing in [the GTCA] shall be construed to give a state officer or employee
immunity from suit and liability if it is proved that the officer’s or employee’s conduct
was not within the scope of his or her official duties or employment.”)).

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Here, Plaintiff’s response to the Individual Defendant’s GTCA-related arguments
is wholly absent of any contention that any Individual Defendant’s actions somehow
occurred outside the scope of their employment. Instead, Plaintiff, once again, just
argues that “he has the right to investigate identities of individuals,” presumably via his
requested discovery period, but fails to cite to any supporting authority for this
proposition. [Doc. 29 at p. 8]. Because the Individual Defendants were state officers or
employees under O.C.G.A. § 50-21-22(7), 4 acting within the scope of their duties or
employment, they are immune from suits seeking tort recovery under any state law
pursuant to the GTCA. Additionally, given that GDC, the state government entity for
which the Individual Defendants were acting, would be substituted as the party
defendant pursuant to O.C.G.A. § 50-21-25(b), Plaintiff’s state-law claims are also barred
in light of the Court’s ruling above with respect to GDC itself. See Section B, supra.
Consequently, the Court must dismiss Plaintiff’s federal and state-law claims
against the Individual Defendants, and their Motion to Dismiss [Doc. 23] is GRANTED.

4

In relevant part, O.C.G.A. § 50-21-22(7) provides,
“State officer or employee” means an officer or employee of the state, elected or appointed
officials, law enforcement officers, and persons acting on behalf or in service of the state in
any official capacity, whether with or without compensation, but the term does not include
an independent contractor doing business with the state. The term state officer or
employee also includes any natural person who is a member of a board, commission,
committee, task force, or similar body established to perform specific tasks or advisory
functions, with or without compensation, for the state or a state government entity, and
any natural person who is a volunteer participating as a volunteer, with or without
compensation, in a structured volunteer program organized, controlled, and directed by a
state government entity for the purposes of carrying out the functions of the state entity.

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CONCLUSION
Based on the foregoing, the Court GRANTS Defendants’ Motions to Dismiss
[Docs. 22, 23]. This case is DISMISSED without prejudice.
SO ORDERED, this 10th day of October 2019.
S/ Tilman E. Self, III
TILMAN E. SELF, III, JUDGE
UNITED STATES DISTRICT COURT

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