Winters et al v. City of Valdosta, Georgia et al
ORDER granting 28 Motion for Summary Judgment. Ordered by Judge Hugh Lawson on 2/15/2012. (nbp)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
TIMOTHY WINTERS and CHRISTOPHER
Civil Action 7:11-CV-22 (HL)
THE CITY OF VALDOSTA, GEORGIA,
JOHN J. FRETTI, Mayor, JAMES
WRIGHT, Councilman, DEIDRA A.
ASONNY@ VICKERS, Councilman, ALVIN
PAYTON JR., Councilman, TIMOTHY H.
CARROLL, Councilman, ROBERT YOST,
Councilman, and JOHN EUNICE, Mayor
This case is before the Court on Defendants’ Motion for Summary
Judgment (Doc. 28). Upon review of the record, the Motion is granted as outlined
herein. Plaintiffs’ complaint is dismissed without prejudice.
Plaintiff Timothy Winters owns a boarding house in Valdosta. He contends
that in 2009, the Valdosta Police Department required him to house a violent
individual named Jeffrey Dixon. Plaintiff Winters alleges that the City of Valdosta
refused to assist him in summarily evicting Mr. Dixon after Mr. Dixon failed to pay
rent and caused property damage. Plaintiff Christopher Peters, who worked for
Plaintiff Winters at the boarding house, contends that Mr. Dixon physically
assaulted him. Mr. Dixon was arrested by the Valdosta Police Department, but
according to Plaintiffs, the police required Plaintiff Winters to allow Mr. Dixon to
return to the boarding house after his release from jail, and Mr. Dixon then
terrorized Plaintiffs and the other guests at the boarding house. Plaintiff Winters
contends that the presence of Mr. Dixon has damaged his business and has
caused him emotional distress.
On February 10, 2011, Plaintiffs filed this lawsuit pursuant to 42 U.S.C. §
1983 against Defendants The City of Valdosta, John J. Fretti, James Wright,
Deidra A. White, Joseph “Sonny” Vickers, Alvin Payton Jr., Timothy H. Carroll,
Robert Yost, and John Eunice.1 Fretti is the former Mayor of Valdosta, and
Wright, White, Vickers, Payton, Carroll, Yost, and Eunice are all former or current
members of the Valdosta City Council.
Defendants have now moved the Court for summary judgment in their
favor, arguing that the City of Valdosta does not have an official policy or custom
that violated Plaintiffs’ constitutional rights, and also that the individual
Defendants should be dismissed from the case. Defendants further contend that
the case should be dismissed for failure to effect service on the City.
Plaintiffs also named Chris Prine, Sheriff of Lowndes County, as a defendant, but he
was dismissed by order of the Court entered on May 9, 2011 (Doc. 20).
SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56 requires that summary judgment be
granted “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). “The moving party bears ‘the initial responsibility of informing the ... court
of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of a genuine issue of
material fact.’” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259 (11th Cir.
2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2549
(1986) (internal quotations omitted)). Where the moving party makes such a
showing, the burden shifts to the non-movant, who must go beyond the pleadings
and present affirmative evidence to show that a genuine issue of material fact
does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505
The applicable substantive law identifies which facts are material. Id. at
248. A fact is not material if a dispute over that fact will not affect the outcome of
the suit under the governing law. Id. An issue is genuine when the evidence is
such that a reasonable jury could return a verdict for the non-moving party. Id. at
In resolving a motion for summary judgment, the court must view all
evidence and draw all reasonable inferences in the light most favorable to the
non-moving party. Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296 (11th
Cir. 2002). The court is bound only to draw those inferences which are
reasonable. “Where the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party, there is no genuine issue for trial.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct.
1348 (1986). “If the evidence is merely colorable, or is not significantly probative,
summary judgment may be granted.” Anderson, 477 U.S. at 249-50 (internal
Official Capacity Claims Against Fretti, Wright, White, Vickers,
Payton, Carroll, Yost, and Eunice
Plaintiffs have sued the individual Defendants in their official capacities
only. However, a § 1983 lawsuit against a government official in his official
capacity is considered to be a suit against the entity that he represents. Mann v.
Taser Intern., Inc., 588 F.3d 1291, 1309 (11th Cir. 2009) (citation omitted). Thus,
Plaintiffs’ suit against Fretti, Wright, White, Vickers, Payton, Carroll, Yost, and
Eunice in their official capacities is the equivalent of suing the City of Valdosta,
which is a named defendant in this case. The official capacity claims are
redundant, and are dismissed. This leaves the City of Valdosta as the only
defendant in the case.
Rule 4(m) Service of Process
Defendants argue that the case should be dismissed because Plaintiffs
failed to properly serve the complaint and summons on the City of Valdosta. The
Federal Rules of Civil Procedure provide:
A state, a municipal corporation, or any other statecreated governmental organization that is subject to suit
must be served by:
delivering a copy of the summons and of the
complaint to its chief executive officer; or
serving a copy of each in the manner prescribed
by that state’s law for serving a summons or like
process on such a defendant.
No server’s affidavit was ever filed by Plaintiffs as required by Rule 4(l)(1).
The only document in the record regarding service is a Federal Express tracking
sheet which states that a Federal Express envelope addressed to John Fretti,
City of Valdosta was signed for by “S. Britt” on February 25, 2011. “S. Britt” is
Shirley Britt, the Associate City Clerk for the City of Valdosta. She is not the
City’s chief executive officer. In any event, service by mail is not authorized under
Rule 4. See Fed.R.Civ.P. 4(d) (restricting service by mail to situations arising
under Rules 4(e), 4(f), and 4(h)); Wright v. City of Las Vegas, Nev., 395
F.Supp.2d 789, 794 (S.D. Iowa 2005). As Plaintiffs have not personally served
the summons and complaint on the City’s chief executive officer, Plaintiffs have
not properly effected service on the City of Valdosta under Rule 4(j)(2)(A).
Plaintiffs’ other option would be to serve the City as provided by Georgia
law. O.C.G.A. § 9-11-4(e)(5) states that a city is to be served by delivering a copy
of the summons and complaint to the mayor or city manager. Plaintiffs have not
personally served either the mayor or city manager. And like federal law, service
by mail is not sufficient under Georgia law. See Cambridge Mut. Fire Ins. Co. v.
City of Claxton, Ga., 720 F.2d 1230, 1232 (11th Cir. 1983) (attempted service on
city by mail was defective under Georgia law and the Federal Rules of Civil
Procedure). Thus, Plaintiffs have not properly effected service on the City under
§ 9-11-4(e)(5) either.
Under the Federal Rules of Civil Procedure, a plaintiff has 120 days after
the filing of a complaint to serve the defendant. Fed.R.Civ.P. 4(m). As noted by
Defendants, it has been over 120 days since the filing of this lawsuit. Proper
service has not been effected on the City. Plaintiffs have long been on notice
about the service defects. Not only were the defects raised in Defendants’
answer, and again in the pending summary judgment motion, the service issue
was also raised by former defendant Chris Prine in his motion to dismiss filed in
March of 2011. Yet Plaintiffs have done nothing to correct the problem, and in
fact did not even bother to respond to Defendants’ argument that the complaint
should be dismissed for lack of service.2
Pursuant to Rule 4(m),
[i]f a defendant is not served within 120 days after the
complaint is filed, the court - on motion or on its own
after notice to the plaintiff - must dismiss the action
without prejudice against that defendant or order that
service be made within a specified time. But if the
plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period.
“Under Rule 4[(m)], dismissal is mandatory if service is not perfected within
120 days of filing the complaint unless good cause is shown.” Schnabel v. Wells,
922 F.2d 726, 728 (11th Cir. 1991), superseded in part by rule as stated in
Horenkamp v. Van Winkle & Co., 402 F.3d 1129, 1132 n. 2 (11th Cir. 2005).
Good cause is generally only found to exist when some “outside factor . . . rather
than inadvertence or negligence, prevented service.” Lepone-Dempsey v. Carroll
County Comm’rs, 476 F.3d 1277, 1281 (11th Cir. 2007) (quotation omitted).
The only “response” to Defendants’ assertions about the insufficient service are
Plaintiffs’ unsupported denials of Defendants’ material facts relating to service. Of
course, in this Court, “[a]ll material facts contained in the moving party’s statement
which are not specifically controverted by specific citation to the record shall be deemed
to have been admitted, unless otherwise inappropriate.” M.D. Ga. L.R. 56. As Plaintiffs
did not provide any citations to support their denials of the material facts relating to
service, the facts are deemed admitted.
Plaintiffs have not established good cause for their failure to serve the City.
Further, while the Court has discretion to grant an extension under Rule 4(m)
even in the absence of good cause, Plaintiffs have not shown any special
circumstances or facts that warrant an extension. As noted above, Plaintiffs did
not address the service issue at all in their response to Defendants’ motion,
much less show any reason why an extension of time for service would be
As Plaintiffs failed to serve the City within the 120-day time period under
Rule 4(m), which expired on June 10, 2011, Plaintiffs’ claims against the City of
Valdosta are dismissed without prejudice.3
Defendants’ Motion for Summary Judgment (Doc. 28) is granted in that
Defendants Fretti, Wright, White, Vickers, Payton, Carroll, Yost, and Eunice are
dismissed as parties and Plaintiffs’ complaint against the City of Valdosta is
dismissed without prejudice.
Because the City has not been served properly, the Court will not address the merits
of the case. It is reversible error for a district court to address the merits of a cause of
action when the plaintiff has failed to properly effect service. See Jackson v. Warden,
FCC Coleman-USP, 259 Fed. App’x 181, 183 (11th Cir. 2007).
SO ORDERED, this the 15th day of February, 2012.
s/ Hugh Lawson
HUGH LAWSON, SENIOR JUDGE
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