GIDDENS et al v. LAWSON et al

Filing 90

ORDER re 62 MOTION to Strike, 64 MOTION for Default Judgment, 72 MOTION to Amend, and 85 MOTION to Strike. REPORT AND RECOMMENDATION re 52 MOTION to Dismiss, 54 MOTION to Dismiss, 57 MOTION to Dismiss, 68 MOTION to Dismiss, 80 MOTION to Dismiss, and 82 MOTION to Dismiss. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 11/30/2016. (efw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
RICKY GIDDENS and
LYDIA GIDDENS,
Plaintiffs,
VS.
HUGH LAWSON, et al.,
Defendants.
________________________________

:
:
:
:
:
:
:
:
:

CASE NO. 7:15-CV-99-CDL-MSH

ORDER AND RECOMMENDATION
Presently pending before the Court are several motions to dismiss: Defendants
Brooks County Board of Commissioners, Carroll, Dewey, and Miller’s motion to dismiss
(ECF No. 52); Defendant Hannan’s motion to dismiss (ECF Nos. 54, 55); Defendant
Haugabrook’s motion to dismiss (ECF No. 57); Defendants Georgia Bureau of
Investigation (“GBI”), Baker, and Luke’s motion to dismiss (ECF No. 68); Defendants
Lawson, Sands, Langstaff, Holder, Moore, Schieber, McEwen, Davis, and Ross’ motion
to dismiss (ECF No. 80); and Defendants Quitman, Georgia, Herring, Ross, and
Williams’ motion to dismiss (ECF No. 82). Also pending before the Court are Plaintiffs’
motions to strike (ECF Nos. 62, 85), motion for default judgment (ECF No. 64), and
motion to amend (ECF No. 72). Plaintiffs’ motion to amend is granted. Plaintiffs’
motion for default judgment and motions to strike are denied. For the reasons explained
below, it is recommended that Defendants’ motions to dismiss each be granted.

BACKGROUND
The present action arises from a September 30, 2009 warrant and October 1, 2009
search of Plaintiffs’ home and the resulting September 30, 2010 indictment for
possession of marijuana with intent to distribute, possession of cocaine base, possession
of firearm during a drug trafficking crime, and possession of a firearm by a convicted
felon. Compl. 9, 14, ECF No. 1. Rickey Giddens entered into a plea agreement on
January 7, 2011—pleading guilty to possession of marijuana with intent to distribute and
possession of cocaine base. Id. at 9.

He was sentenced on May 31, 2011. Id. All

charges were dropped against Plaintiff Lydia Giddens. Id.
Plaintiffs filed this Complaint on June 9, 2015 pursuant to Bivens v. Six Unknown
Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). They assert a
variety of claims: breach of duty by counsel, ineffective assistance of counsel, unlawful
search, failure to supervise and train, negligence, fraud, violation of the Fourth, Fifth,
Eighth, and Fourteenth Amendments, violation of equal protection rights, and unlawful
sentencing. See generally Compl. 10-28.
Defendants contend that Plaintiffs’ claims are time-barred and that Plaintiffs’
claims should be dismissed on numerous other substantive and procedural grounds,
discussed infra. Defendants Brooks County Board of Commissioners, Carroll, Dewey,
and Miller (the “Brooks County defendants”) filed their motion to dismiss on August 29,
2016 (ECF No. 52). Defendant Hannan filed his answer of August 29, 2016 (ECF No.
53) and concurrently filed a motion to dismiss (ECF Nos. 54, 55). Defendant Haugabrook
filed an answer on August 29, 2016 (ECF No. 60) and concurrently filed a motion to
2

dismiss (ECF No. 57). Defendants Quitman, Georgia, Herring, Ross, and Williams (the
“Quitman defendants”) filed an answer on September 6, 2016 (ECF No. 66) and their
motion to dismiss on October 20, 2016 (ECF No. 82). Defendants GBI, Baker, and Luke
(the “GBI defendants”) filed their motion to dismiss on September 9, 2016 (ECF No. 68).
Defendants Lawson, Sands, Langstaff, Holder, Moore, Schieber, McEwen, Davis, and
Ross (the “federal defendants”) filed their motion to dismiss on October 19, 2016 (ECF
No. 80).
DISCUSSION
I.

Defendants’ Motions to Dismiss
A.

Statute of Limitation

The Defendants all assert that Plaintiffs claims are time-barred. The two-year
statute of limitations for personal injury under Georgia law applies to Bivens claims.
Kelly v. Serna, 87 F.3d 1235, 1238 (11th Cir. 1996); see also Bloodworth v. United
States, 623 F. App’x 976, 978 (11th Cir. 2015)(“For Bivens actions brought in Georgia,
the statute of limitations is two years.”); O.C.G.A. § 9-3-33.
Plaintiffs’ claims against the Brooks County and Quitman defendants relate to the
search warrant issued on September 30, 2009 and the resulting search on October 1,
2009. Compl. 1-6, 15, 19-20, Defs.’ Br. in Supp. 4, ECF No. 52-1, Defs.’ Br. in Supp. 8,
ECF No. 82-1. The claims against the GBI defendants arise from the investigation of the
Giddens’ alleged crimes; the investigation and use of the resulting evidence occurred in
2009 and 2010. Compl. 17-18, Defs.’ Br. in Supp. 10, ECF No. 68-1. Plaintiffs also
bring claims against their retained counsel—Defendant Hannans and Haugabrook. Their
3

representation of the Giddens ended by November 2011. Def.’s Br. in Supp. 11; ECF No.
55; Def.’s Br. in Supp. 23; ECF No. 57.
Finally, Plaintiffs assert claims against three groups of federal defendants involved
in the prosecution and adjudication of Plaintiffs’ charges. Plaintiffs allege: that Judge
Sands applied incorrect legal standards and failed to sufficiently notify Mr. Giddens of
the charges against him at Mr. Giddens’ plea hearing on January 7, 2011; that Judge
Lawson improperly sentenced Mr. Giddens’ on May 31, 2011 and improperly ruled on
Mr. Giddens’ § 2255 motion on December 19, 2012; and that Judge Langstaff improperly
considered Mr. Giddens’ § 2255 motion in a Report and Recommendation entered on
November 28, 2012. Compl. 24, 25; Defs.’ Br. in Supp. 15, ECF No. 80-1.

The

allegations against the federal prosecutorial defendants relate to advocacy and filings
between September 30, 2010 and October 23, 2012. Compl. 26-27, Defs.’ Br. in Supp.
16, ECF No. 80-1. Plaintiffs’ claims against the Federal Probation Officers relate to the
preparation of the presentence report, filed on April 1, 2011. Compl. 29, Defs.’ Br. in
Supp. 16, ECF No. 80-1.
This action was not filed until June 9, 2015—well past the two-year limitations
period for any of the actions complained of above. See id. at 1. The Court thus notes that
regardless of the application of immunity or any additional grounds for dismissal,
dismissal of all claims as time-barred is recommended.
B.

Absolute Immunity

The federal defendants move to dismiss asserting that they are absolutely immune
from suit. Defs.’ Br. in Supp. 4-12, ECF No. 80-1. These defendants fall into three
4

different categories—judges, prosecutors, and probation officers—each of which enjoy
absolute immunity.

The Court agrees and recommends dismissal of the federal

defendants.
The doctrine of judicial immunity is a long-held tenet of the American judicial
system, thought to be in the best interests of “the proper administration of justice . . . [,
for it allows] a judicial officer, in exercising the authority vested in him [to] be free to act
upon his own convictions, without apprehension of personal consequences to himself.”
Stump v. Sparkman, 435 U.S. 349, 363 (citations omitted). It is axiomatic that “judges of
courts of superior or general jurisdiction are not liable to civil actions for their judicial
acts[.]” Id. at 355-56 (1978)(citations omitted). Judicial immunity applies even when the
judge's acts are in error, malicious, or were in excess of his or her jurisdiction. Bolin v.
Story, 225 F.3d 1234, 1239 (11th Cir. 2000). In other words, judges are entitled to
absolute judicial immunity for those acts taken while they are acting in their judicial
capacity unless they acted in the clear absence of all jurisdiction. Stump, 435 U.S. at
356–57; Sibley v. Lando, 437 F.3d 1067, 1070 (11th Cir. 2005)(internal quotation mark
and citation omitted); Simmons v. Conger, 86 F.3d 1080, 1084–85 (11th Cir. 1996).
Disagreement with the action taken by a judge does not justify a waiver of this immunity.
Stump, 435 U.S. at 363.
Similarly, prosecutors are entitled to absolute immunity from damages for acts or
omissions associated with the judicial process, in particular, those taken in initiating a
prosecution and in presenting the government's case. Bolin, 225 F.3d at 1242. The
Eleventh Circuit has emphasized that “[a] prosecutor enjoys absolute immunity from
5

allegations stemming from the prosecutor's function as advocate.” Hart v. Hodges, 587
F.3d 1288, 1295 (11th Cir. 2009)(citations omitted). “Prosecutorial immunity is not
limited solely to prosecutors. Probation officers are entitled to absolute immunity for the
preparation and submission of a presentence report in a criminal case because the ‘report
is an integral part of the sentencing process, and in preparing the report the probation
officer acts at the direction of the court.’” Id. at 1296.
Plaintiffs’ claims against the federal defendants arise out of actions taken by the
defendants during the prosecution of Plaintiffs’ case in federal court.

Defendants

Lawson, Sands, and Langstaff—all federal judges—are thus entitled to absolute judicial
immunity. Plaintiffs’ claims against Defendants Holder, Moore1, Schieber, McEwen,
Davis and Ross are likewise barred by the absolute prosecutorial immunity extended to
such government attorneys and probation officers. It is thus recommended that the
federal defendants’ motion to dismiss (ECF No. 80) be granted.
C.

Non-federal defendants

Plaintiffs’ bring this action as a Bivens claim, but the Brooks County, Quitman,
and GBI defendants aver that a Bivens claim is improper against non-federal actors. In
order to maintain an action under Bivens, a plaintiff must show that: (1) a constitutional
right was violated by a federal employee; (2) the employee is sued in his or her individual
capacity; and (3) no alternative way exists to seek relief for the constitutional violation.
Bivens 403 U.S. at 390-97. A Bivens suit challenges the constitutionality of the actions of
1

Defendant Ellen Moore is deceased. Plaintiffs moved to withdraw their claims against
Defendant Moore in open court at a hearing held on November 10, 2016. Min. Entry, ECF No.
89. That oral motion was granted and all claims against Defendant Moore are dismissed. Id.
6

federal officials. Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995). In contrast, to
challenge the constitutionality of the actions of state officials, an action is properly filed
as a § 1983 suit. Id.
The Georgia Bureau of Investigation is a state agency, and Kim Baker and
Stripling Luke are GBI Special Agents. Defs.’ Br. in Supp. 1, 10, ECF No. 68-12. None
of these defendants can be construed as a “federal employee.” Plaintiffs thus cannot meet
the requisite showing to sustain a Bivens action against Defendants GBI, Baker, or Luke.2
A Bivens action is also improper against the Brooks County defendants. 3 Mike
Dewey is the Sheriff of Brooks County, and Jerry Miller is an investigator with the
Brooks County Sheriff’s Office. Defs.’ Mot. to Dismiss 1, ECF No. 52. Plaintiffs cannot
demonstrate that a Bivens action can be sustained against these defendants, as they were
not “federal employees.”
Finally, Plaintiffs cannot demonstrate that the Quitman defendants are proper
subjects of a Bivens claim. Defendant Danny Herring is the former City Manager for the
City of Quitman, Defendant Wesley Ross is the Chief of Police for the City of Quitman,
and Defendant Keith Williams is a Lieutenant in the City of Quitman Police Department.
2

The Court notes that even if it were to construe Plaintiffs’ claim as a § 1983 lawsuit, such
lawsuit would also be time-barred as to all defendants. See Reynolds v. Murray, 170 Fed. App’x
49, 50 (11th Cir. 2006)(holding the Georgia general personal injury two-year statutory limitation
period applies to § 1983 actions).
3
Pursuant to Federal Rule of Civil Procedure 15(a)(2), Plaintiffs’ motion to amend (ECF No. 72)
is granted. Plaintiffs seek to amend their Complaint “to supplement Brooks County, Georgia in
place of Defendant Board [o]f Commissioners and Wayne Carroll as the real party who is subject
to be sued.” Pls.’ Mot. to Amend 2, ECF No. 72. Defendants Wayne Carroll and the Brooks
County Board of Commissioners are voluntarily withdrawn and Brooks County, Georgia is
added as a defendant. This Court recommends any and all claims against Brooks County,
Georgia be similarly dismissed for the jurisdictional bars discussed herein.
7

Defs.’ Mot. to Dismiss 1, ECF No. 82. None of these Defendants—to include the City of
Quitman—is a “federal employee.” Consequentially, this Court recommends that these
defendants’ motions to dismiss (ECF Nos. 52, 68, 82) be granted.
D.

Private Attorneys

Defendants Hannan and Haugabrook likewise argue that a Bivens action cannot lie
against them. Def.’s Br. in Supp. 3, ECF No. 55; Def.’s Br. in Supp. 6, ECF No. 57. The
Court agrees. Defendants Hannan and Haugabrook are private attorneys; they are not
federal employees. Id. at 20-22; Def. Hannan’s Br. in Supp. 8-10, ECF No. 55. A Bivens
action cannot lie against these Defendants and this Court thus recommends granting their
motions to dismiss (ECF Nos. 54, 57).
II.

Plaintiffs’ Pending Motions
A.

Plaintiffs’ Motion to Strike for Violation of Local Rule 7.4

Plaintiffs filed a motion to strike (ECF No. 62) a portion of Defendant
Haugabrook’s motion to dismiss (ECF No. 57).

Plaintiffs argue that Defendant

Haugabrook violated Middle District Local Rule 7.4. The rule reads, in full:
Except upon good cause shown and leave given by the court, all briefs in support of a
motion or in response to a motion are limited in length to twenty (20) pages; the movant's
reply brief may not exceed ten (10) pages. A party seeking permission to exceed these
limitations shall do so by filing a written motion no later than five (5) days in advance of
the deadline for filing the brief and by specifying the number of pages requested.
M.D. Ga. Civ. R. 7.4.
Defendant Haugabrook filed a 30 page document on August 29, 2016. That
document included a two-page motion and a twenty-eight page brief in support.
Defendant Haugabrook did not respond to Plaintiffs’ motion to strike (ECF No. 62). The
8

Court notes that Defendant Haugabrook exceeded the page limit by eight pages, not ten
pages as asserted by Plaintiffs.
There is precedent in the Middle District for considering excess pages but
admonishing the offender to comply with M.D. Ga. Civ. R. 7.4 in future filings. See,
e.g., Wood v. Archbold Med. Ctr., 7:07-cv-109, 2010 WL 3069126 at *2 (M.D. Ga. Aug.
3, 2010)(“The Court does not believe it appropriate to strike the responses at this time.
Plaintiff is cautioned, however, that the Court will not be so lenient in the future.”)
Because of the jurisdictional bars to proceeding with this litigation, the Court finds
it unnecessary to strike (or, alternatively, order Defendant Haugabrook to refile in
compliance with the local rules). Defendant Haugabrook is admonished to comply with
Middle District Local Rules in his future filings with this court.
B.

Plaintiffs’ Motion to Strike as Untimely

Plaintiffs also filed a motion to strike (ECF No. 85) the Quitman Defendants’
motion to dismiss as untimely. Plaintiffs argue that a motion under Federal Rules of
Civil Procedure 12(b)(6) raising the defense of failure to state a claim must be made
before the service of a responsive pleading.

Pls.’ Mot. to Strike 2, ECF No. 85.

Additionally, Plaintiffs argue that Defendants’ motion to dismiss is untimely because it
was filed and served after the 21-day period permitted for a responsive pleading under
Rule 12(a)(1)(A). Id. Plaintiffs and the Quitman defendants agree that an untimely 12(b)
motion can be treated as a 12(c) motion. Id.; Defs.’ Resp. 1-2, ECF No. 87.
“Judgment on the pleadings is appropriate when there are no material facts in
dispute, and judgment may be rendered by considering the substance of the pleadings and
9

any judicially noticed facts.” Hawthorne v. Mac Adjustment, 140 F.3d 1367, 1370 (11th
Cir. 1998). “If a party uses Rule 12(c) to assert a 12(b)(6) defense . . . the Court will
apply the same standards to the motion as if it were brought directly under Rule
12(b)(6).”

Sikes v. Am. Tel. & Tel. Co., 841 F. Supp. 1572, 1580 (S.D.Ga.

1993)(citations omitted); see also Griffin v. Sun Trust Bank, 157 F. Supp. 3d 1294, 1295
(N.D.Ga 2015)(“ The legal standard for assessing a motion for judgment on the pleadings
under Rule 12(c) is the same as the standard for a motion to dismiss under Rule
12(b)(6)”).
Plaintiffs’ motion to strike (ECF No. 85) the Quitman defendants’ motion to
dismiss as untimely is denied. This Court construes the Quitman defendants’ motion to
dismiss (ECF No. 82) as a Rule 12(c) motion for judgment on the pleadings.
C.

Plaintiffs’ Motion for Default Judgment

Plaintiffs moved for a default judgment (ECF No. 64) against Defendants City of
Quitman, Georgia, Wesley Ross, Danny Herring, and Keith Williams on September 6,
2016. Plaintiffs aver that defendants had until August 30 or 31, 2016 to file an answer to
the Complaint; as no response had been filed as of September 6, 2016, Plaintiffs moved
for a default judgment. Pls.’ Mot. for Default 2, ECF No. 64. Defendants Ross, Herring,
Williams, and Quitman, Georgia responded on the same day (ECF No. 65) and stated that
a calendaring error—inadvertently recording a timeline based on state deadlines, rather
than federal—was the cause of Defendants’ delay. Defs.’ Resp. 2, ECF No. 65.
“[D]efaults are seen with disfavor because of the strong policy of determining
cases on their merits.” Florida Physician’s Ins. Co. v. Ehlers, 8 F.3d 780, 783 (11th Cir.
10

1993)(citations omitted). “Entry of judgment by default is a drastic remedy which should
be used only in extreme situations, as the court has available to it a wide range of lesser
sanctions.” Wahl v. McIver, 773 F.2d 1169, 1174 (11th Cir. 1985). Rather, “the usual
preference [is] that cases be heard on the merits rather than resorting to sanctions that
deprive a litigant of his day in court.” Id. To avoid the entry of default, the defaulting
party can establish mistake, inadvertence, or excusable neglect by showing that: “(1) it
had a meritorious defense that might have affected the outcome; (2) granting the motion
would not result in prejudice to the non-defaulting party; and (3) a good reason existed
for failing to reply to the complaint.” Ehlers, 8 F.3d at 783.
In the instant case, this Court finds that a clerical error should not prevent litigants
from presenting meritorious defenses, including a statute of limitations bar to this action.
Plaintiffs were not prejudiced by a seven-day delay in the filing of Defendants’ Answer.
Plaintiffs’ motion is consequently denied.
CONCLUSION
Plaintiffs’ motion to amend (ECF No. 72) is granted. Plaintiffs’ motion for default
judgment and motions to strike (ECF No. 62, 64, 85) are denied. For the reasons
explained above, it is recommended that Defendants’ motions to dismiss (ECF Nos. 52,
54, 57, 68, 80, 82) each be granted. Pursuant to 28 U.S.C. § 636(b)(1), the parties may
serve and file written objections to this Recommendation, or seek an extension of time to
file objections, within fourteen (14) days after being served with a copy hereof. The
district judge shall make a de novo determination of those portions of the
Recommendation to which objection is made. All other portions of the Recommendation
11

may be reviewed for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a]
party failing to object to a magistrate judge’s findings or recommendations contained in a
report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1)
waives the right to challenge on appeal the district court’s order based on unobjected-to
factual and legal conclusions if the party was informed of the time period for objecting
and the consequences on appeal for failing to object. In the absence of a proper objection,
however, the court may review on appeal for plain error if necessary in the interests of
justice.”
SO RECOMMENDED, this 30th day of November, 2016.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE

12