Cobble v. Cobb County Police, et al

Filing 26

ORDER: Plaintiff's construed Motion for Reconsideration 5 and construed Motion to Recuse Federal Judge Richard W. Story for His Failure to Answer a Single Legal Argument 21 are DENIED. Signed by Judge Richard W. Story on 12/3/2013. (cem)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
DANIEL ERIC COBBLE,
Plaintiff,
v.
COBB COUNTY POLICE
DEPARTMENT, et al.,
Defendants.

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CIVIL ACTION NO.
1:02-CV-2821-RWS

ORDER
This case comes before the Court on Plaintiff’s construed Motion for
Reconsideration [5] and Motion to Impeach Federal Judge Richard W. Story for
His Failure to Answer a Single Legal Argument [21]. After a review of the
record, the Court enters the following Order.
Background
On October 15, 2002, Plaintiff Daniel Cobble filed a pro se civil rights
action while confined at the Cobb County Adult Detention Center. Plaintiff’s
Complaint [1] against the Cobb County Police Department, several Cobb
County police officers, and two Cobb County magistrate judges alleged that
Defendants failed to grant or notify him of the date of a first appearance hearing

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within 72 hours of his arrest pursuant to a warrant. See O.C.G.A. § 17-4-26
(requiring officer arresting under a warrant to bring arrestee before a judicial
officer and notify arrestee of the date of a commitment hearing within 72 hours
after arrest). He alleged that Defendants ultimately granted him a hearing five
days after his arrest. He further alleged that he had been awaiting trial in jail for
over 14 months without bond. Finally, Plaintiff alleged that a magistrate judge
charged him with three additional felony counts and a misdemeanor battery
charge but never granted him a first appearance hearing, though he was later
indicted on all charges. Plaintiff sought dismissal of his charges plus monetary
relief.
Plaintiff’s case came before the Court pursuant to 28 U.S.C. § 1915A,
which requires screening of prisoner complaints for frivolity. On November 6,
2002, Judge Charles A. Moye Jr. dismissed Plaintiff’s claim pursuant to
Younger v. Harris, 401 U.S. 37 (1971), in which the United States Supreme
Court held that federal courts should abstain from intervening in ongoing state
criminal prosecutions “when the moving party has an adequate remedy at law
and will not suffer irreparable injury if denied equitable relief.” Id. at 43-44.
Furthermore, federal court intervention is justified only in extraordinary
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circumstances involving bad faith or harassment or a flagrant violation of an
express constitutional prohibition. Id. at 49-50, 53-54.
The Court held that Plaintiff had an adequate remedy at law for his
federal constitutional claim and that extraordinary circumstances justifying
intervention were not present. (Dkt. [3] at 3.) The Court also noted that
Plaintiff could only seek money damages based on his unconstitutional
confinement claim once he proved the invalidity of the criminal charges against
him. (Id. at 4 (citing Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).) And if
he wanted to seek immediate dismissal of all charges and his immediate release,
Plaintiff had to file a federal habeas corpus petition after exhausting his state
remedies. (Id. at 4 n.1.) The action was dismissed for failure to state a claim
upon which relief can be granted, and the case was closed on November 7,
2002.
Plaintiff sent a letter [5] to Judge Moye, filed on November 14, 2002,
arguing that he was not permitted to cite legal authority in his original civil
rights complaint worksheet but could state a valid claim if he cited O.C.G.A. §
17-4-26, which states that “[a]n arrested person who is not notified before the
hearing of the time and place of the commitment hearing shall be released.”
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On June 24, 2013, Plaintiff filed a Notice of Appeal [6] and an
Application to Appeal In Forma Pauperis [7], among other motions. The case
was reassigned to the undersigned on June 26, and on August 1 the Court
denied Plaintiff’s pending motions as untimely. (Dkt. [17].) Plaintiff filed a
Motion to Impeach Federal Judge Richard W. Story for His Failure to Answer a
Single Legal Argument [21]. The Court construes this motion as a Motion to
Recuse. The Eleventh Circuit Court of Appeals has also inquired into the status
of Plaintiff’s November 14, 2002 letter, which it construes as a Motion for
Reconsideration [5]. The Court first determines the recusal issue before turning
to the underlying Motion for Reconsideration [5].
Discussion
I.

Motion to Recuse [21]
Plaintiff’s construed Motion to Recuse [21] enumerates the reasons he

believes the Court erred in its August 1, 2013 Order [17]. Recusal under 28
U.S.C. § 455(a) is appropriate only where “an objective, disinterested, lay
observer fully informed of the facts underlying the grounds on which recusal
was sought would entertain a significant doubt about the judge’s impartiality.”
United States v. Patti, 337 F.3d 1317, 1321 (11th Cir. 2003) (citation omitted).
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“ ‘[P]rior rulings in the proceeding . . . solely because they were adverse’ are
not ordinarily sufficient to require a § 455(a) recusal.’ ” United States v.
Turner, No. 2:08-CR-00018-RWS, 2009 WL 529582, at *1 (N.D. Ga. Feb. 27,
2009) (citation omitted). Because Plaintiff only explains his disagreement with
the Court’s Order [17] without offering any evidence of personal bias, his
construed Motion to Recuse [21] is DENIED.
II.

Motion for Reconsideration [5]
A.

Motion for Reconsideration Legal Standard

Under the Local Rules of this Court, “[m]otions for reconsideration shall
not be filed as a matter of routine practice,” but rather, only when “absolutely
necessary.” LR 7.2(E), NDGa. Such absolute necessity arises where there is
“(1) newly discovered evidence; (2) an intervening development or change in
controlling law; or (3) a need to correct a clear error of law or fact.” Bryan v.
Murphy, 246 F. Supp. 2d 1256, 1258-59 (N.D. Ga. 2003). However, a motion
for reconsideration may not be used “to present the court with arguments
already heard and dismissed or to repackage familiar arguments to test whether
the court will change its mind.” Id. at 1259. Nor may it be used “to offer new
legal theories or evidence that could have been presented in conjunction with
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the previously filed motion or response, unless a reason is given for failing to
raise the issue at an earlier stage in the litigation.” Adler v. Wallace Computer
Servs., Inc., 202 F.R.D. 666, 675 (N.D. Ga. 2001). Finally, “[a] motion for
reconsideration is not an opportunity for the moving party . . . to instruct the
court on how the court ‘could have done it better’ the first time.” Pres.
Endangered Areas of Cobb’s History, Inc. v. U.S. Army Corps of Eng’rs, 916
F. Supp. 1557, 1560 (N.D. Ga. 1995), aff’d, 87 F.3d 1242 (11th Cir. 1996).
B.

Analysis

Plaintiff has failed to show the existence of new evidence or law that
would entitle him to relief. The Court’s decision to abstain from deciding the
case was proper at the time. Furthermore, Plaintiff’s claim is due to be
dismissed on the merits for the reasons that follow.
1.

Violation of O.C.G.A. § 17-4-26

Plaintiff seeks dismissal of all charges against him based on the
allegation that he was not granted a first appearance hearing or notified of a
hearing date within 72 hours.1 (Compl., Dkt. [1] at 4.) He also claims that his

1

In order to address all the issues Plaintiff raised, the Court first considers his
arguments about the operation of O.C.G.A. § 17-4-26 before turning to his
constitutional claims. To the extent that Plaintiff wishes to challenge his detention
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rights were violated after a magistrate judge added three felony charges against
him at a probable cause hearing in August 2001 without granting him another
first appearance. (Id.) He cites O.C.G.A. § 17-4-26, which reads in full:
Every law enforcement officer arresting under a warrant shall
exercise reasonable diligence in bringing the person arrested before
the judicial officer authorized to examine, commit, or receive bail
and in any event to present the person arrested before a committing
judicial officer within 72 hours after arrest. The accused shall be
notified as to when and where the commitment hearing is to be
held. An arrested person who is not notified before the hearing of
the time and place of the commitment hearing shall be released.
Courts have found that while the statute “requires that ‘the person arrested [be
brought] before a committing judicial officer within 72 hours after arrest,’ ” a
commitment hearing need not be held within that time. Tidwell v. Paxton, 651
S.E.2d 714, 715 (Ga. 2007) (quoting O.C.G.A. § 17-4-26).
Plaintiff argues that he should have been released because he did not
received a first appearance hearing within 72 hours. (Dkt. [5].) O.C.G.A. § 17-

and seek release, however, he must file a habeas corpus petition. (See Dkt. [3] at 4
n.1.) The Court notes that Plaintiff previously filed separate habeas corpus petitions
in state and federal court, which were dismissed. See Cobble v. Cobb Cnty. Police
Dep’t, No. 1:13-CV-01338-SCJ (N.D. Ga. June 11, 2013); Cobble v. Donald, No:
1:06-CV-02487-CAM (N.D. Ga. May 14,2009). The Court rejected similar
arguments presented here in his first federal habeas petition. See Cobble, No. 1:06CV-02487-CAM, Dkt. [33] at 40-42 (Aug. 5, 2008).
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4-26 does state that “[a]n arrested person who is not notified before the hearing
of the time and place of the commitment hearing shall be released.” But
“courts have ruled that [violation of O.C.G.A. § 17-4-26] in no way vitiates the
indictment, trial, verdict, and judgment of conviction and sentence.” Robinson
v. State, 356 S.E.2d 55, 60 (Ga. Ct. App. 1987) (citing Heard v. State, 189
S.E.2d 895, 897 (Ga. Ct. App. 1972)). Thus, assuming Plaintiff was granted
neither an initial appearance before a judicial officer within 72 hours nor a
commitment hearing, Plaintiff cannot now challenge the charges against him
based on a violation of O.C.G.A. § 17-4-26 because he was later granted a
hearing and was indicted on all charges.2 Plaintiff’s claims related to the
alleged delay in receiving a hearing are therefore moot. See McClure v.
Hopper, 214 S.E.2d 503, 505-06 (Ga. Ct. App. 1975) (failing to bring someone
arrested under a warrant before a committing officer within 72 hours “would be
ground for pre-indictment habeas corpus,” but it is “not ground for postconviction habeas corpus due to mootness”); see also Capestany v. State, 656
S.E.2d 196, 200 (Ga. Ct. App. 2007) (holding that after a warrantless arrest,

2

Less than a year after Plaintiff filed this action, he was also convicted and
sentenced. See Cobble, No. 1:06-CV-02487-CAM, Dkt. [33] at 1-10 (detailing
Plaintiff’s criminal procedural background).
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“statutory remedy for [failing to hold a commitment hearing within 48 hours]
was only available during the period of illegal detention, which ended when the
State obtained valid arrest warrants”).
Similarly, Plaintiff’s contention that the magistrate judge added felony
charges at a probable cause hearing in violation of his due process rights is no
basis for release. His allegations demonstrate that there was probable cause to
hold him on those charges. First, the judge added the charges during the
hearing after taking testimony from police officers. (Compl., Dkt. [1] at 4.)
Moreover, he admits that he was later indicted on those charges. (Id.) On these
facts, Plaintiff cannot sustain a challenge to the charges against him.
2.

Due Process Claim

Plaintiff also claims that Defendants violated his due process rights. A
plaintiff has a cause of action against any person who, under color of law,
deprives that plaintiff of any rights, privileges, or immunities secured by the
Constitution and laws of the United States. 42 U.S.C. § 1983. “In order to
prevail in a civil rights action under section 1983, ‘a plaintiff must make a
prima facie showing of two elements: (1) that the act or omission deprived
plaintiff of a right, privilege or immunity secured by the Constitution or laws of
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the United States, and (2) that the act or omission was done by a person acting
under color of law.’ ” Marshall County Bd. of Educ. v. Marshall Cnty. Gas
Dist., 992 F.2d 1171, 1174 (11th Cir. 1993) (quoting Bannum, Inc. v. City of
Ft. Lauderdale, 901 F.2d 989, 996-97 (11th Cir. 1990)).
The Due Process Clause of the Fourteenth Amendment states “nor shall
any State deprive any person of life, liberty, or property, without due process of
law.” U.S. CONST. amend. XIV, § 1. The Eleventh Circuit has noted that:
The Supreme Court’s interpretation of this clause explicates that
the amendment provides two different kinds of constitutional
protection: procedural due process and substantive due process.
Cf. Zinermon v. Burch, 494 U.S. 113, 125, 110 S. Ct. 975, 983,
108 L. Ed. 2d 100 (1990). A violation of either of these kinds of
protection may form the basis for a suit under [42 U.S.C. §] 1983.
Id.
McKinney v. Pate, 20 F.3d 1550, 1555 (11th Cir. 1994). Substantive due
process rights arise from the Due Process Clause itself, whereas states may
create rights that “constitutionally may be rescinded so long as the elements of
procedural—not substantive—due process are observed.” Id. at 1556.
First, the Court finds that an untimely commitment hearing does not
violate substantive due process. In State v. Godfrey, the Georgia Court of
Appeals held that “failure to hold such a hearing does not constitute a
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deprivation of a defendant’s constitutional rights. A criminal defendant has no
constitutional right to a commitment hearing. Rather, the right to such a
hearing is statutory.” 418 S.E.2d 383, 384 (Ga. Ct. App. 1992) (citing Hunt v.
Hopper, 205 S.E.2d 303, 305 (Ga. 1974)). While probable cause is required to
detain an individual awaiting further proceedings, the Fourth Amendment does
not require a full adversarial hearing, and the methods of a pretrial
determination of probable cause may “vary widely” among the states. Gerstein
v. Pugh, 420 U.S. 103, 119-25 (1975). Plaintiff was afforded substantive due
process when he was granted a hearing within five days of arrest and then
indicted on all his charges, including the new felonies. While Plaintiff has not
stated a substantive due process claim, the Court must also consider whether he
suffered a procedural due process violation of a state-created right.
The requirements of procedural due process apply to the deprivation of
interests encompassed by the Fourteenth Amendment’s protection of liberty and
property. Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972). The range of
interests protected by procedural due process, however, is not infinite. Id. at
570. In order to determine whether due process requirements apply in the first
place, the court must look to the nature of the interest at stake; i.e., whether the
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interest is within the Fourteenth Amendment’s protection of liberty and
property. Id. at 570-71. “ ‘Liberty’ and ‘property’ are broad and majestic
terms.” Id. at 571. Property interests protected by procedural due process
extend well beyond actual ownership of real estate, chattels, or money. Id. at
571-72. Likewise, protection for deprivations of liberty extend beyond the
formal constraints imposed by the criminal process. Id. at 572.
Assuming, without deciding, that Georgia’s enactment of O.C.G.A. §
17-4-26 created a liberty interest protected by the Due Process Clause, the
Court finds no violation of that right. To sustain a procedural due process claim
under § 1983, a claimant must also allege that the state fails to provide an
adequate remedy. Cotton v. Jackson, 216 F.3d 1328, 1330 (11th Cir. 2000).
“Only when the state refuses to provide a process sufficient to remedy the
procedural deprivation does a constitutional violation actionable under § 1983
arise.” McKinney, 20 F.3d at 1557. Plaintiff has not made such an allegation.
Any due process deprivation has been cured: Plaintiff received a hearing within
five days, the magistrate judge added subsequent charges after a probable cause
hearing, he was indicted on all charges, and his case proceeded through
conviction and sentencing. The remedy of habeas corpus was also available to
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Plaintiff up until the commitment hearing and indictment. See Godfrey, 418
S.E.2d at 384 (citations omitted) (“If a defendant wishes to assert the right to a
commitment hearing, he must do so promptly and before indictment by filing a
habeas corpus petition, because once indictment takes place probable cause has
been established and a preliminary hearing serves no purpose.”) Failing to file
a habeas petition in the interim does not permit Plaintiff to “rely on that failure
to claim that the state deprived him of procedural due process.” Cotton, 216
F.3d at 1331. Because Plaintiff failed to state a claim and has not established
any other grounds for relief, his construed Motion for Reconsideration [5] is
hereby DENIED.
Conclusion
In accordance with the foregoing, Plaintiff’s construed Motion for
Reconsideration [5] and construed Motion to Recuse [21] are DENIED.
SO ORDERED, this 3rd

day of December, 2013.

________________________________
RICHARD W. STORY
United States District Judge

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