Brown v. Griffin, et al

Filing 61

REPORT AND RECOMMENDATION re 5 Amended Complaint, 6 Complaint, 2 Complaint, 22 Amended Complaint Objections to R&R due by 8/29/2005. Signed by Judge G. Mallon Faircloth on 8/12/05. (Faircloth, G.)

Brown v. Griffin, et al

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA THOMASVILLE DIVISION BILLY EUGENE BROWN, Plaintiff, vs. WILEY GRIFFIN, Sheriff, and J. BROWN MOSELEY, D.A., Defendants. * * * * * * * * * *

CASE NO. 6:03-CV-43 42 U.S.C. § 1983

R E V IS E D REPORT AND RECOMMENDATION Plain tiff, Billy Eugene Brown, a pro se prisoner, filed the above styled action p u r s u a n t to 42 U.S.C. § 1983, on September 10, 2003. On March 22, 2005, a Report and R e c o m m e n d a t i o n was filed, recommending that the Defendants' Motions for Summary J u d g m e n t be granted. Plaintiff thereafter filed his Objection to the Recommendation on Ap ril 25, 2005. On July 6, 2005, the Recommendation was adopted and the Defendants' M o t i o n s for Summary Judgment were granted by order of the Court. On July 26, 2005, the Cou rt's Order was vacated and this case is again before the court for reconsideration of the affid avit and exhibits submitted by the Plaintiff. On July 29, 2005, the Plaintiff filed an appeal of the final judgment with the Eleventh Circu it Court of Appeals. Generally, filing a notice of appeal divests a district court of j u r is d i c ti o n . Weaver v. Florida Power and Light Co., 172 F.3d 771 (11 th Cir. 1999). Federal c o u r t s , however, only have jurisdiction to review final decisions of the lower courts. U.S. S .E . C. v. Carillo, 325 F.3d 1268 (11 th Cir. 2003). The Eleventh Circuit has held that a

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prematu re notice of appeal does not divest the district court of jurisdiction over a case. U.S. v . Kapelushnik, 306 F.3d 1090 (11 th Cir. 2002). The Plaintiff's appeal in this case, was filed p r e m a t u r el y , as the District Court had already vacated its previous Order. Therefore, no final d e c i s io n existed for the Plaintiff to appeal, and this court is not precluded from re-reviewing the motions for summary judgment. LEGAL STANDARD Ru le 56 of the Federal Rules of Civil Procedure dealing with motions for summary judg men t provides in part: T h e judgment sought shall be rendered forthwith if the pleadings, depositions, answ ers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the mo vin g party is entitled to a judgment as a matter of law. Summary judgment can only be granted if there are no genuine issues of material fact a n d if the moving party is entitled to judgment as a matter of law. Fed. R. .Civ. P. 56 (c); W a r r i o r Tombigee Transportation Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983). While the evidence and all factual inferences therefrom must be viewed by the court in the light most favorable to the party opposing the motion, the party opposing the granting o f the motion for summary judgment cannot rest on his pleadings to present an issue of fact b u t must make a response to the motion by filing affidavits, depositions, or otherwise in order to persuade the court that there are material facts present in the case which must be presented to a jury for resolution. See Van T. Junkins & Assoc., Inc. v. U.S. Industries, Inc., 736 F.2d 6 5 6 , 658 (11th Cir. 1984).

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S p e c i f ic a l ly , the party seeking summary judgment bears the initial burden to dem onstr ate to the court the basis for its motion by identifying those portions of the p l e a di n g s , depositions, answers to interrogatories, and admissions which it believes show that there is an absence of any genuine issue of material fact. Hairston v. Gainesville Sun Pub. C o . , 9 F.3d 913 (11th Cir. 1993). In determining whether the moving party has met this b u r d e n , the court must review the evidence and all factual inferences drawn from this, in the l i g h t most favorable to the non-moving party. Welch v. Celotex Corp., 951 F.2d 1235, 1237 ( 1 1th Cir. 1992). If the moving party successfully meets this burden, the burden then shifts to the nonm o v i n g party to establish by going beyond the pleadings, that there are genuine issues of m a t e r ia l fact to be resolved by a fact-finder. Clark v. Coats & Clark, Inc., 929 F.2d 604 (11 th Cir. 1991). Genuine issues are those as to which the evidence is such that a reasonable jury c o u ld find for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2 5 0 5 , 2510, 91 L. Ed. 2d 202 (1986). Summary judgment is appropriate when the

n o n m o v a n t "fails to make a showing sufficient to establish the existence of an element e s s e n ti a l to that party's case, and on which that party will bear the burden of proof at trial." C e l o t e x Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Tidmore Oil Co. v. BP Oil Co./Gulf Prods. Div., a Div. of BP Oil Co., 932 F.2d 1384. 1387-88 (11th Cir .199 1), cert. denied, 502 U.S. 925, 112 S.Ct. 339, 116 L.Ed.2d 279 (1991). Motions for summary judgment are normally decided based on the pleadings, and the discovery of record, together with any affidavits submitted by the parties, in deciding 3

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w h e t h e r summary judgment is appropriate under Rule 56. The party upon whom a Motion f o r Summary Judgment has been filed has the right to file affidavits or other material in o p p o s i ti o n to a summary judgment motion. If he fails or refuses to file any affidavits or other mate rials in opposition to the Motion for Summary Judgment, a Final Judgment may be r e n d e r e d against him if otherwise appropriate under law. Specifically, Federal Rule of Civil Proc edur e 56(e) provides, that: S u p p o r t in g and opposing affidavits shall be made on personal k n o w l e d g e , shall set forth such facts as would be admissible in e v i d e n c e , and shall show affirmatively that the affiant is c o m p e t e n t to testify to the matters stated therein. Sworn or c e r t if i e d copies of all papers or parts thereof referred to in an affidav it shall be attached thereto or served therewith. The court m a y permit affidavits to be supplemented or opposed by d e p o s i t i o n s , answers to interrogatories, or further affidavits. W h e n a motion for summary judgment is made and s u p p o r t e d as provided in this rule, an adverse party may not r e s t upon the mere allegations or denials of the adverse p a r t y 's pleading, but the adverse party's response, by a ff id a v its or as otherwise provided in this rule, must set fo rth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary ju d g m en t, if appropriate, shall be entered against the a d v er se party. (emphasis added). P R O C E D U R A L HISTORY Plain tiff is currently imprisoned in the Federal Correctional Institution in Forrest City, A r k a n s a s , pursuant to a conviction for possession with intent to distribute over fifty grams o f methamphetamine. In his Amended Complaint, Plaintiff seeks monetary damages for violatio ns of his constitutional rights. Specifically, in Count I of his Amended Complaint 4

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f i le d on July 6, 2004, Plaintiff alleged that while he was incarcerated in the Decatur County Jail on pending state charges, he was denied medical attention for several maladies. In Count I I of his Amended Complaint, Plaintiff Brown alleged that, while he was confined,

D e f e n d a n t J. Brown Moseley, the District Attorney, filed a forfeiture action in the Superior Cou rt of Decatur County, Georgia, seeking forfeiture of certain of Plaintiff's property; that D e f e n d a n t Wiley Griffin, the Sheriff of Decatur County, and Defendant Moseley agreed to p r e v e n t Plaintiff from filing any answer or otherwise responding to the forfeiture complaint, s o that Plaintiff would be in default in the civil forfeiture case; and to accomplished this a g r e e m e n t they "denied Plaintiff any means with which to file an answer or otherwise r e s p o n d to the forfeiture complaint."

In Count III of Plaintiff's Amended Complaint, he alleged that from August 26, 2003 to September 29, 2003, Defendant Griffin intentionally held him in the Decatur County Jail with no charges pending against him. He asserts that Defendant Griffin sought to inflict punishment upon him by unlawfully imprisoning him. He asserts that he suffered a lack of medical attention, the denial of his liberty and physical damage to his body. And finally, in Count IV of the Amended Complaint, Plaintiff alleged that on or about March 21, 2001, Defendants Moseley and Griffin agreed to offer Plaintiff an immunity agreement, with the intent of obtaining services and assistance of the Plaintiff by causing him to believe that he was to receive total and complete immunity in exchange for services Plaintiff would render to the State; that the Defendants had no intention of honoring the agreement, and after good

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faith compliance by Plaintiff, Defendants "then caused the Plaintiff to be prosecuted in the United States District Court for the Middle District of Georgia, . . . that they sought and procured the criminal prosecution of Plaintiff in the United States District Court, well knowing that they had previously promised complete immunity to Plaintiff, and well knowing that Plaintiff had fully and faithfully performed his agreement."
O n August 19, 2004, Defendant Moseley filed a M otion to Dismiss the action as to Co unts II and IV, the two counts which name him as a defendant, claiming that the statute o f limitations had run. That motion was denied on September 16, 2004. On September 13, 2 0 0 4 , Defendant Griffin filed a Motion to Dismiss all counts against him. Counts I and III were ultimately dismissed as this court found that Defendant Griffin, as sheriff, was entitled to Eleventh Amendment immunity on those claims. Thereafter, on February 4, 2005, D e f e n d a n t Griffin filed a Motion for Summary Judgment as to Counts II and IV. Defendant M o s e l e y filed his Motion for Summary Judgment as to Counts II and IV on February 8, 2 0 0 5 . Plaintiff responded to the Motions on March 7, 2005 and March 14, 2005, respectively, b y filing completely identical briefs as to the two Defendants with this court. As Counts I a n d III of Plaintiff's Amended Complaint have been dismissed as to Defendant Griffin and t h o s e counts do not pertain to Defendant Moseley, only Counts II and IV need be addressed. D I SC U S S I O N T h e record reveals that on February 15, 2001, the Decatur County Sheriff's D e p a r t m e n t in conjunction with the Drug Enforcement Agency (DEA) followed a

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c o n f i d e n ti a l informant to the home of the Plaintiff. Therein, the informant bought seven g r am s of methamphetamine. On February 21, 2001, the informant again purchased seven g ra m s of methamphetamine and was also given 97.3 grams of marijuana. On March 1, 2001, a c t in g under a search warrant, the officers from both the Sheriff's Department and the DEA s e a r c h e d Plaintiff's residence and confiscated 92.16 grams of methamphetamine, along with s e v e r a l other items. Plaintiff was then arrested and was released on bond on May 9, 2001. H e was thereafter convicted of possession with intent to distribute over fifty grams of meth amp hetam ine in a federal district court.

I.

C on sp ir ac y Claims As noted above, in both counts against them, the Plaintiff has alleged that the

D e f e n d a n t s , in concert, actively and knowingly violated his constitutional rights. W ith regard to the conspiracy claims in both counts, Defendants Griffin and Moseley contend that Plaintiff has failed to establish a prima facie case that there existed an agreement to deny Plaintiff his constitutional rights. As Defendant Griffin stated in his Brief in Support of M o t i o n for Summary Judgment, the Plaintiff is required to establish that there was an explicit a g r e e m e n t between the defendants to violate his constitutional rights. See, Strength v. H u b e r t , 854 F.2d 421 (11 Cir. 1988)(overruled on other grounds by Whitney v. Traylor, 85 F . 3 d 581 (11th Cir. 1996)). With regard to the facts in this case, the Plaintiff has failed to allege the operative facts of a conspiracy. "A complaint may justifiably be dismissed because of the conclusory, 7

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v a g u e and general nature of the allegations of conspiracy." Fullman v. Graddick, 739 F.2d 5 5 3 , 557 (11th Cir.1984) (citing 2A J. Moore & J. Lucas, Moore's Federal Practice ¶ 8.17[5] a t 8-180, 181 (2 ed. 1984)). Plaintiff's complaint presents no facts which would show that a n agreement and concerted action of conspiracy actually existed between the Defendants. To show that a valid conspiracy claim under § 1983 existed, a plaintiff must establish the s u p p o r t in g , operative facts of the conspiracy. Phillips v. Mashburn, 746 F.2d 782, 785 (11th C ir . 1984). The mere fact that Plaintiff alleges that there was a conspiracy to deprive him of his due process rights, is not sufficient to show participation in a conspiracy. The Plaintiff argues in his Objections that both Defendants were aware of the events and both parties stood to gain financially from the acts in question. (Plaintiff's Objections, p . 3). That awareness and the fact that the sheriff's office would receive any benefit from a forfeiture action, however, does not establish that the Defendants conspired to deprive him o f any constitutional right. In fact, the Plaintiff admits in his Objections that he "is not in a p o s i ti o n to show the defendants agreed in detail as to the manner and means they would u t i li z e to deprive the Plaintiff of his constitutional rights." Id. at 7. Rather, he argues that t h e trier of fact would be able to "find the existence of a conspiracy" from the evidence p r e s e n te d . Id. That possibility, however, is not the standard. As was previously stated, a Plaintiff must establish that there was an explicit agreement between the defendants to d e p r i v e him of his rights. The Plaintiff has failed to do so. Thus, it is recommended that D e f e n d a n t s ' Motion for Summary Judgment as to any conspiracy claims be GRANTED. B e c a u s e the Plaintiff has failed to show any operative facts relating to a conspiracy on either 8

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o f the remaining counts, it is further recommended that as to Count II, Defendant Moseley's M o t i o n for Summary Judgment be GRANTED as the Plaintiff is unable to show that this D e f e n d a n t acted in any way to deprive the Plaintiff access to the courts. Is it further r e c o m m e n d e d that Defendant Griffin's Motion for Summary Judgment be GRANTED as to Count IV, as the Plaintiff is unable to show that the Defendant failed to honor an immunity a g r e e m e n t made between the Plaintiff and Defendant Moseley. The remaining issues for d e t e r m in a t i o n , therefore, are Defendant Griffin's Motion for Summary Judgment as to Count I I and Defendant Moseley's Motion for Summary Judgment as to Count IV.

II.

D e n i a l of Access to the Court T h r o u g h o u t his pleadings, the Plaintiff has alleged that Defendant Griffin, in his

capa city as Sheriff of Decatur County, denied him access to the jail's law library for the p u r p o se of hindering his ability to file an answer to the forfeiture action brought by the D i s t r ic t Attorney's Office. Defendant Griffin, in a sworn statement, attested that he in no w a y kept the Plaintiff from having access to the law library. (Griffin Affidavit, p. 2,3). In response, the Plaintiff contends under penalty of perjury that he made several w r i t te n requests to Defendant Griffin for permission to utilize the library. (Plaintiff's Affid avit, p. 2). He further states in his Objections that "whether Plaintiff made a request to u s e the law library, and whether Defendant Griffin failed, refused, or neglected to permit Pla intiff from using those facilities is a material fact in the case." (Objections p. 4).

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In his Motion for Summary Judgment, however, Defendant Griffin further argues that h e is immune from liability on this claim pursuant to his Eleventh Amendment Immunity, j u s t as he was found to have been with regard to Counts I and III, which were dismissed aga inst him for that reason. (Doc. 36). To determine whether a defendant is immune from liability under the Eleventh Am endm ent, the Eleventh Circuit Court of Appeals has held that "...a defendant need not be l a b e le d a "state officer" or "state official," but instead need only be acting as an "arm of the Sta te," which includes agents and instrumentalities of the State." Manders v. Lee, 338 F.3d 1 3 0 4 , 1308 -1309 (11th Cir. 2003); citing Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 4 2 9 - 3 0 , 117 S.Ct. 900, 137 L.Ed.2d 55 (1997). The Court, in Manders, set out the four factor t e s t used to ascertain whether an entity is an "arm of the State" in carrying out the function a t issue: "(1) how state law defines the entity; (2) what degree of control the State maintains o v e r the entity; (3) where the entity derives its funds; and (4) who is responsible for judg men ts against the entity." Manders at 1309; citing Miccosukee Tribe of Indians of Fla. v . Fla. State Athletic Comm ., 226 F.3d 1226, 1231-34 (11th Cir.2000); Shands Teaching H o s p . & Clinics v. Beech St. Corp., 208 F.3d 1308, 1311 (11th Cir.2000) ; Tuveson v. Fla. Go ver nor 's Council of Indian Affairs, Inc., 734 F.2d 730, 732 (11th Cir.1984). This court has previously determined in this case, based on the standard found in M a n d e r s , that where a Georgia Sheriff is performing his official and authorized duties as a state actor, he is entitled to eleventh amendment immunity. (Doc. 36). Because Defendant Griffin was "wearing his state hat" and working under color of Georgia state law at the time 10

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o f the events at issue in Count II, he is immune to suit in his official capacity under the a u s p i c e s of the Eleventh Amendment. Therefore, it is recommended that Defendant

Griffin's Motion for Summary Judgement as to Count II of the Amended Complaint be GRANTED.

III.

I m m u n i t y Agreement T h e sole remaining issue deals with Count IV of the Plaintiff's Amended Complaint

w h e r e i n he alleges that Defendant Moseley entered into an immunity Agreement with him wh ic h , in return for his assistance on other drug cases, would prevent him from being p r o s e c u te d on the pending charges. The Plaintiff contends that Defendant Moseley entered into the agreement, then failed to honor it by having him prosecuted by the United States Dis trict Court on federal drug charges stemming from his arrest on state charges. In his Motion for Summary Judgment, Defendant Moseley argues that he did enter into the agreement with the Plaintiff, that he honored the agreement, and that he did not have a n y t h i n g to do with the federal charges brought against the Plaintiff. (Brief, p. 7). He asserts in his statement that he was unable to negotiate on behalf of the federal government, and that h e informed Plaintiff's attorney of that fact when the agreement was signed. (Moseley Af fida vit, p. 5, 6). A review of the immunity agreement signed by Defendant Moseley and Plaintiff's th e n Counsel reveals a statement which reads "[T]his agreement is entered into in the

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und ersta n d i n g and contemplation that like immunity will be received from the Federal auth oritie s." (See, Doc. 6, Exhibits Attached to Questionnaire for Prisoner's Proceeding Pro Se). In his Statement of M aterial Facts Which Continue to be in Dispute Between Plaintiff

a n d J. Brown Moseley, filed on March 14, 2005, however, Plaintiff acknowledges that D e f e n d a n t Moseley told him that "while he could not bind the federal authorities, that he wo uld let them know of the agreement he had entered into with Plaintiff and the extent of Pla intiff' s cooperation with law enforcement authorities." (Statement, p. 4). In determining what cases to prosecute, a state district attorney has no power or autho rity to require the federal government to pursue or to prevent the federal government f r o m pursuing federal charges against a defendant. The State of Georgia and the United S t a t e s employ two distinct law enforcement entities which operate separately of each other. How ever, the federal government was not a party to Plaintiff's agreement with Defendant M o s e l e y . Nowhere in the immunity agreement does the federal government agree not to p u r s u e charges against the Plaintiff. Plaintiff's claim that he will have a DEA agent testify th a t Defendant Moseley sought federal prosecution against him, does not satisfy the Sum mary Judgment requirement for a sworn affidavit to such fact. Plaintiff's assertion is no more than hearsay. Furthermore, the decision to initiate federal prosecution did not rest with D e f e n d a n t Moseley at any time. Even if the Plaintiff were able to show that Defendant M o s e l e y asked the United States Attorney's Office to pursue charges against Plaintiff in spite of the agreement, he cannot establish that the United States Attorney was obligated to com ply with Moseley's request, anymore than the agreement between Plaintiff and Moseley 12

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could bind the federal prosecutor not to prosecute federal charges against Plaintiff. Plaintiff i s , therefore, unable to establish that Defendant Moseley "procured" his criminal prosecution in the United States District Court. While Moseley's "contemplation" that there would be no f e d e r a l prosecution might have been an unwise thing to contemplate, it does not rise to the l e v e l of violation of Plaintiff's constitutional rights. Therefore, it is recommended that D e f e n d a n t Moseley's Motion for Summary Judgement as to Count IV be GRANTED. Pursuant to 28 U.S.C. § 636(b)(1), the parties may file objections to this R e c o m m e n d a t i o n in writing with the UNITED STATES DISTRICT JUDGE within TEN (10) DAYS after being served with a copy hereof. So Recommended, this 12th Day of August, 2005.

S /G . MALLON FAIRCLOTH UNITED STATES MAGISTRATE JUDGE

sW e

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