PELLITTERI v. Prine et al
Filing
22
ORDER granting in part and denying in part 11 Motion to Dismiss Complaint. Ordered by Judge Hugh Lawson on 8/21/2013. (nbp)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
FELICIA PELLITTERI,
Plaintiff,
Civil Action No. 7:13-CV-28 (HL)
v.
CHRIS PRINE, Individually and in his
official capacity as Sheriff of
Lowndes County, Ga., LOWNDES
COUNTY SHERIFF’S OFFICE, and
LOWNDES COUNTY, GA.,
Defendants.
ORDER
This case is before the Court on the Motion to Dismiss of Lowndes County
Sheriff’s Office and Lowndes County, Georgia and Motion for Partial Dismissal by
Sheriff Chris Prine, in His Official Capacity (Doc. 11). For the reasons discussed below,
the motion is granted in part and denied in part.
I.
MOTION TO DISMISS STANDARD
To avoid dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), “a
complaint must contain specific factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,
1949, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570,
127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is plausible where the plaintiff
alleges factual content that “allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. The plausibility standard “calls for
enough fact to raise a reasonable expectation that discovery will reveal evidence” of
the defendant’s liability. Twombly, 550 U.S. at 556.
On a motion to dismiss, “all-well pleaded facts are accepted as true, and the
reasonable inferences therefrom are construed in the light most favorable to the
plaintiff.” Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273 n. 1 (11th Cir. 1999).
However, the same does not apply to legal conclusions contained in the complaint.
Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009) (citation omitted).
“Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. In addition, the court
does not “accept as true a legal conclusion couched as a factual allegation.” Twombly,
550 U.S. at 555.
II.
FACTS/BACKGROUND1
Plaintiff was employed as a deputy sheriff within the Lowndes County Sheriff’s
Office on or about June 7, 2009. (Compl. ¶ 11; Doc. 1). She was terminated from
employment in May of 2012. (Id. at ¶ 12). Prior to her termination, Plaintiff suffered an
on-the-job injury to her knee. (Id. at ¶ 13). Plaintiff became disabled as a result of the
injury, and Defendants knew of Plaintiff’s disability. (Id. at ¶¶ 13-15). In light of her
disability, Plaintiff requested that she be put on temporary light duty. (Id. at ¶ 16).
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The factual assertions contained in Plaintiff’s complaint are accepted as true for purposes of
the motions to dismiss. The Court agrees with Defendants that many of the statements
contained in paragraphs 4 through 10 of the complaint are not facts but instead are legal
conclusions. The Court does not accept the legal conclusions as true.
2
Rather than accommodating her disability, Defendant Prine terminated her
employment. (Id. at ¶ 17). Plaintiff was replaced by a male deputy sheriff. (Id. at 20).
Defendant Prine allowed male deputy sheriffs who suffered on-the-job injuries to work
light duty jobs. (Id. at ¶ 18). Further, at the time of Plaintiff’s termination, Defendants
retained equally or lesser qualified similarly situated male deputy sheriffs. (Id. at ¶ 19).
On March 11, 2013, Plaintiff filed a three-count complaint against Chris Prine,
individually and in his official capacity as Sheriff of Lowndes County, Georgia, the
Lowndes County Sheriff’s Office, and Lowndes County, Georgia. In Count One,
asserted against all Defendants, Plaintiff alleges that her termination violated her right
to be free from gender discrimination under the Equal Protection clause of the
Fourteenth Amendment, as actionable under 42 U.S.C. § 1983. In Count Two, asserted
against Defendant Prine in his official capacity only, the Lowndes County Sheriff’s
Office, and Lowndes County, Plaintiff alleges that her gender-based termination
violated Title VII of the Civil Rights Act of 1964. Finally, in Count Three, asserted
against Defendant Prine in his official capacity only, the Lowndes County Sheriff’s
Office, and Lowndes County, Plaintiff alleges that her termination based on her
disability or perceived disability constitutes a violation of the Americans with
Disabilities Act.
Defendants now move to dismiss the complaint, in part, pursuant to Federal Rule
of Civil Procedure 12(b)(6). Specifically, Defendants move to dismiss the Lowndes
County Sheriff’s Office and Lowndes County as parties. They also move to dismiss
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Counts One and Three against Defendant Prine in his official capacity. Defendants do
not seek the dismissal of the claims asserted in Count One against Defendant Prine in
his individual capacity and in Count Two against Defendant Prine in his official
capacity, and those will move forward notwithstanding the rulings made here by the
Court.
III.
ANALYSIS
A.
Claims against the Lowndes County Sheriff’s Office
Defendants move to dismiss all claims against the Lowndes County Sheriff’s
Office because it is not an entity capable of being sued. The Court agrees. The issue of
whether a government entity is capable of being sued is determined by the law of the
state in which the district court is located. Fed.R.Civ.P. 17(b)(3). Thus, in this case,
Georgia law controls. The Georgia Supreme Court has explained that “[i]n every suit
there must be a legal entity as the real plaintiff and the real defendant. This state
recognizes only three classes as legal entities, namely (1) natural persons; (2) an
artificial person (a corporation); and (3) such quasi-artificial persons as the law
recognizes as being capable to sue.” Georgia Insurers Insolvency Pool v. Elbert
County, 258 Ga. 317, 318, 368 S.E.2d 500, 502 (1988) (quotation omitted). A sheriff’s
office does not fall into any of these categories, and therefore is not capable of being
sued. Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992) (“Sheriff’s departments
and police departments are not usually considered legal entities subject to suit.”);
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Presnell v. Paulding County, 454 F.App’x 763, 768 (11th Cir. 2011). Accordingly, all
claims against the Lowndes County Sheriff’s Office are dismissed.
B.
Claims against Lowndes County
Defendants move for dismissal of all claims against Lowndes County because it
was not Plaintiff’s employer and does not exercise control over the personnel matters
or decisions of the Sheriff. The Court agrees that Lowndes County should be dismissed
from the case.
Plaintiff alleges Title VII and ADA claims against Lowndes County. Both Title VII
and the ADA authorize a cause of action against an employer. 42 U.S.C. § 2000(e)2(a); 42 U.S.C. § 12111; 42 U.S.C. § 12112; Mason v. Stallings, 82 F.3d 1007 (11th
Cir. 1996). It is well established that in Georgia, the Sheriff, and not the county,
employs his deputies. See generally Manders v. Lee, 338 F.3d 1304, 1311 (11th Cir.
2003); Teasley v. Freeman, 305 Ga. App. 1, 3, 699 S.E.2d 39 (2010) (“Furthermore, as
pointed out by the trial court, our statutory and case law consistently treat sheriffs as
the employer of their deputies.”) As explained by the Eleventh Circuit in Manders, under
Georgia law, counties are separate entities independent of the sheriff’s office, the
sheriff is not a sub-unit or division of county government, and “[s]heriffs alone hire and
fire their deputies.” 338 F.3d at 1310-11. Because Defendant Prine, not Lowndes
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County, was Plaintiff’s employer, the Title VII (Count Two) and ADA (Count Three)
claims against Lowndes County must be dismissed.
In addition to her Title VII and ADA claims, Plaintiff asserts a claim under § 1983
that her allegedly gender-based termination violated her rights under the Equal
Protection Clause. Generally, the Eleventh Circuit has “rejected the notion that a
Georgia county can be liable under § 1983 for the actions of members of a sheriff’s
office, finding that, pursuant to the Georgia Constitution, a sheriff’s office is independent
from the county in which it operates.” Townsend v. Coffee County, Ga., 854 F.Supp.2d
1345, 1350 (S.D. Ga. 2011) (citing Grech v. Clayton County, 335 F.3d 1326, 1332,
1335 (11th Cir. 2003)). In light of the strict limitations on municipal liability under §
1983, a county will be held responsible only when the county’s “official policy” causes a
constitutional violation. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct.
2018, 56 L.Ed.2d 611 (1978). Thus, a plaintiff must “’identify a municipal ‘policy’ or
‘custom’ that caused [his] injury.’” Grech, 335 F.3d at 1329 (quoting Gold v. City of
Miami, 151 F.3d 1346, 1350 (11th Cir. 1998)).
A plaintiff “has two methods by which to establish a county’s policy: identify either
(1) an officially promulgated county policy or (2) an unofficial custom or practice of the
county shown through the repeated acts of a final policymaker for the county.” Grech,
335 F.3d at 1329. “Because a county rarely will have an officially-adopted policy of
permitting a particular constitutional violation, most plaintiffs . . . must show that the
county has a custom or practice of permitting it and that the county’s custom or practice
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is ‘the moving force [behind] the constitutional violation.’” Id. at 1330 (quoting City of
Canton v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)).
To establish Ҥ 1983 liability against a municipality based on custom, a plaintiff
must establish a widespread practice that, ‘although not authorized by written law or
express municipal policy, is so permanent and well settled as to constitute a custom or
usage with the force of law.’” Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481
(11th Cir. 1991) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct.
915, 99 L.Ed.2d 107 (1988)). In addition, a plaintiff “(1) must show that the local
governmental entity, here the county, has authority and responsibility over the
governmental function in issue and (2) must identify those officials who speak with final
policymaking authority for that local governmental entity concerning the act alleged to
have caused the particular constitutional violation in issue.” Grech, 335 F.3d at 1330
(citations omitted).
In her complaint, Plaintiff alleges:
All of the actions complained of herein were taken under
color of state and local law, pursuant to the policy and
custom of Lowndes County, Ga. and/or the Lowndes County
Sheriff’s Office, and/or Defendant Prine, acting in his official
capacity as Sheriff of Lowndes County as an agent acting for
the other named Defendants.
(Compl., ¶ 9).
This paragraph contains the only mention of the words “policy” or “custom” in the
entire complaint. Plaintiff has not specifically identified any official policy or well-settled
custom or practice attributable to Lowndes County which was the moving force behind
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her allegedly unconstitutional violation. Plaintiff has done nothing more than make a
vague and conclusory allegation, and that is not sufficient to state a claim for municipal
liability under § 1983. Accordingly, Count One is also dismissed against Lowndes
County.
C.
Count One and Count Three Claims against Defendant Prine in his
Official Capacity
Defendants also move the Court for dismissal of the official capacity claims
asserted against Defendant Prine in Count One (§ 1983) and Count Three (ADA) of
Plaintiff’s complaint.
Defendant Prine contends he cannot be liable in his official capacity for Plaintiff’s
statutory and constitutional claims except those arising under Title VII because he has
Eleventh Amendment immunity. The Eleventh Amendment protects a state from being
sued in federal court for damages unless the state has consented to suit or Congress
has validly abrogated the state’s immunity. Manders, 338 F.3d at 1308; Williams v. Bd.
of Regents of Univ. Sys. Of Ga., 477 F.3d 1282, 1301 (11th Cir. 2007).
Resolution of this portion of the motion hinges on how the Court deals with the
Eleventh Circuit’s decision in Keene v. Prine, 477 F.App’x 575 (11th Cir. 2012). In
Keene, three former employees brought suit against Defendant Prine and Lowndes
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County.2 The plaintiffs claimed that they were wrongfully terminated from their jobs at
the Lowndes County Sheriff’s Office. They alleged numerous claims, including
discrimination based on sex and age, as well as retaliation for engaging in protected
political speech.
Following discovery, Defendant Prine moved for summary judgment.3 One of
Defendant Prine’s arguments was that he was entitled to Eleventh Amendment
immunity for the official capacity claims brought against him, with the exception of the
Title VII claims. This Court analyzed the Eleventh Amendment question, first
considering whether Defendant Prine acts as an arm of the state when making
employment decisions, and if so, whether Congress had eliminated Eleventh
Amendment immunity for any of the plaintiffs’ claims or whether the State of Georgia
had consented to suit.
Utilizing the test set forth in Manders v. Lee, 338 F.3d at 1309, the Court
determined that Defendant Prine is an arm of the state in relation to making
employment decisions for his office. Therefore, the Court concluded, the claims against
Defendant Prine in his official capacity constituted claims against the State of Georgia.
(Civil Action No. 7:09-CV-141 (HL); Doc. 64, p. 22). After considering the second part
of the Eleventh Amendment immunity question, the Court determined that Defendant
Prine was entitled to immunity in his official capacity from any § 1983, FMLA, ADEA, or
2
The same counsel litigating the case at bar also litigated Keene.
3
Lowndes County also moved for summary judgment, but for purposes of this Order it is not
necessary to discuss anything other than the Eleventh Amendment issue relating to
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ADA monetary award. The Court found that Defendant Prine was not immune from the
Title VII monetary claims or from the plaintiffs’ prospective injunctive relief claims. (Id.
at p. 24-25). After considering the merits of the plaintiffs’ remaining claims, the Court
granted the summary judgment motion. (Id. at 52). Judgment in favor of the defendants
was entered on June 22, 2011.
The plaintiffs appealed the case to the Eleventh Circuit, which issued an opinion
reversing the Court’s judgment and remanding the case for further proceedings. Keene
v. Prine, 477 F.App’x 575 (11th Cir. 2012). The only portion of the appellate opinion that
is of interest to the Court for its current purposes deals with Eleventh Amendment
immunity.
The Eleventh Circuit noted that for Defendant Prine to receive Eleventh
Amendment immunity, he had to have been acting as an arm of the state when he
terminated the plaintiff-employees. The court examined the Manders factors and
determined that when Defendant Prine made the personnel decisions at issue, he did
not act as an arm of the state, and therefore was not entitled to immunity. Id. at 579-80.
The circuit court reversed this Court on that point.
Not surprisingly, Plaintiff puts all of her eggs into the Keene basket, and argues
that based on that decision, Defendant Prine’s official capacity Eleventh Amendment
immunity claim must be rejected, as when making a local personnel decision, such as
terminating the employment of an employee, he is not acting as an arm of the state.
Defendant Prine.
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Defendants, again not surprisingly, argue that the Keene decision is flat-out wrong and
that Defendant Prine is in fact entitled to immunity. Defendants do acknowledge,
however, that if the Court believes Keene was correctly decided, the Counts One and
Three official capacity claims against Defendant Prine will move forward.
There are few things a judge dislikes more than getting reversed by a higher
court. The Court expended a great amount of time and energy in coming to its decision
in Keene that Defendant Prine is an arm of the state for purposes of making personnel
decisions. Obviously the Court believed that decision was correct or it would not have
issued the order. But an appellate panel decided that the decision was in fact incorrect.
While the Court acknowledges that the Keene decision is unpublished, and therefore
technically not binding4, the Court is faced with an appellate decision dealing with the
exact same defendant, on the exact same type of legal claim - discrimination in an
employment decision -, and the exact same legal issue - whether Eleventh Amendment
immunity is available. While in no way conceding that its initial decision in Keene was
wrong, because of the circumstances presented here, the Court feels bound to follow
Keene. Therefore, the Court denies the motion as to Defendant Prine in his official
capacity as to Counts One and Three.
Perhaps this will be the case where the Eleventh Circuit will issue a published
opinion on the specific issue of whether a sheriff acts as arm of the state when he
4
The Court is aware that the Eleventh Circuit denied the Keene plaintiffs’ motion to publish
the opinion.
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makes personnel decisions.5 As Defendants are undoubtedly aware, a district court’s
denial of a motion to dismiss on Eleventh Amendment immunity grounds is appealable
immediately. Summit Medical Assocs., P.C. v. Pryor, 180 F.3d 1325, 1334 (11th Cir.
1999) (citations omitted).
IV.
CONCLUSION
The Motion to Dismiss of Lowndes County Sheriff’s Office and Lowndes County,
Georgia and Motion for Partial Dismissal by Sheriff Chris Prine, in His Official Capacity
(Doc. 11), is granted in part and denied in part.
The Lowndes County Sheriff’s Office and Lowndes County are dismissed as
parties. All of the claims against Defendant Prine, both in his official and individual
capacities, will move forward.
SO ORDERED, this the 21st of August, 2013.
s/ Hugh Lawson
HUGH LAWSON, SENIOR JUDGE
mbh
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The Court is also aware that the Eleventh Circuit denied the Keene defendants’ petition for
rehearing en banc.
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