Bell v. Metropolitan Atlanta Rapid Transit Authority et al

Filing 35

ORDER and OPINION GRANTING IN PART AND DENYING IN PART Dft's 11 Motion to Dismiss; DENYING Pla's 19 Motion for Oral Argument; DENYING AS MOOT Pla's 20 Motion to Amend Complaint; DENYING Pla's 25 Motion to Alter or Amend Or der Denying Pla's Request for Temporary Injunction and/or Preliminary Injunction; GRANTING granting Pla's 29 Second Motion to Amend Complaint; DENYING Pla's 30 Motion for Preliminary Injunction and DENYING Pla's 31 Motion to Supplement. Defendant's shall file an Answer to all federal claims by April 25, 2011. Discovery shall begin on May 2, 2011 and end on August 30, 2011. Summary Judgment motions will be due on September 20, 2011. Signed by Judge Julie E. Carnes on 3/30/11. (jlm)

"

IN THE UNITED STATES DISTRICT COURT JAM FOR THE NORTHERN DISTRICT OF GEORGI~ ATLANTA DIVISION CLIFTON BELL, Plaintiff,
CIVIL ACTION NO.

~'"c~ U.S.D.C. AtII._

v.
METROPOLITAN ATLANTA RAPID
TRANSIT AUTHORITY, CHIEF WANDA
DUNHAM, Personally, ASSISTANT
CHIEF JOSEPH DORSEY,
Personally, And A, B, and C,
Being Those Persons, Firms, Or
Entities Presently Unknown to
Plaintiff,
Defendants.

1:10-CV-1117-JEC

ORDER & OP:IN:ION

This case is before the Court on Defendants' Motion to Dismiss Plaintiff's Complaint [llJ; Plaintiff's Motion for Oral Argument on Defendant's Motion Complaint Plaintiff's
[20 J

to

Dismiss Second Alter

[19J; Motion or

Plaintiff's to Amend

Motion

to Amend
[29] ;

and to

Complaint

Motion

Amend Order

Denying

Plaintiff's

Request for Temporary Injunction and/or Preliminary Injunction [25]; and plaintiff's First Motion for Preliminary Injunction [30J. The Court has parties and, for reviewed the the reasons record and the arguments of the set out below, concludes that

Defendants' Motion to Dismiss Plaintiff's Complaint [11] should be

GRANTED

in part and DENIED in part;

Plaintiff's Motion for Oral
[19J

Argument on Defendant's f:.lotion to Dismiss Plaintiff's Plaintiff's Motion Motion to to Amend Alter Complaint or Amend

should be DENIED; should be
DENIED;

[20] Order

Denying

Plaintiff's

Request for Temporary Injunction and/or Preliminary Injunction [25] should be DENIED; Plaintiff's Second Motion to Amend Complaint [29] should be GRANTED; and Plaintiff's Motion for Preliminary Injunction [30] should be DENIED.
BACKGROUND I. FACTS ALLEGED IN PLAINTIFF'S ORIGINAL COMPLAINT '

Plaintiff brings this civil rights suit pursuant to 28 V.S.C.
§1983;

he

has

also asserted state law claims.

Plaintiff was

a

Metropoli tan Atlanta Rapid Transi t Authority ("Marta") police officer until March 5, 2007, when he resigned. At the time of his resignation, plaintiff was an administrator for the department. As an administrator, plaintiff coded invoices

from various other departments and also had authority to appro'Je small purchases of up to $3,000.00. Plaintiff's resignation followed an internal investigation account with into Best his Buy, role in the creation of an and

unauthorized

after

which

improper

The above facts are derived from plaintiff's original complaint (11 and the Court takes all factual allegations in the light most favorable to plaintiff.
2

unauthorized charges were billed to MARTA. Plaintiff denied any intentional wrongdoing when questioned by investigators, instead claiming that he was acting at the direction of another officer and had assumed that the account was properly authorized. The investigators apparently did not credit plaintiff's

explanation and, on March 1, 2007, they reported to Chief Dunham, a defendant in this case, that plaintiff had knowingly made several false statements regarding the account in question, Account #2350.

Defendant Dunham decided to terminate plaintiff's employment and, on March 2, 2007, drafted a termination letter, effective that day, which she placed with a disciplinary action form into

plaintiff's field file. The termination letter indicates that a Name Clearing hearing would be held March 8, 2007. (Id. at
~

34.)

Plaintiff alleges, however, that this letter was never presented to him, and that he did not form were learn in that it and an until accompanying January 2008.

disciplinary

action

his

file

Instead of actually terminating plaintiff, Dorsey had met with him on March 5, 2007

defendants Dunham and and, after extensive

questioning, told plaintiff that they had received information that he had filled out the entire application to open the account on behalf of Marta. Defendants Dunham and Dorsey further informed

plaintiff that they had concluded that the unauthorized purchases at

issue could not have occurred without his knowledge or assistance.
3

Defendants Dunham and Dorsey gave plaintiff two options: resign or be terminated for cause for making false statements and having unauthori zed communications with a Best so, Buy however, representative. plaintiff was form

Plaintiff chose to resign. unaware that a termination

In dOing letter

and

disciplinary action Further,

existed and would remain in his file. resigned, plaintiff never received the

because he had hearing

name-clearing

referenced in the termination letter and to which he would have been entitled, had he actually been terminated. In March of 2007, the Peace Officer Standards Counsel (POST) of Georgia notified plaintiff that it had become aware of facts that might affect plaintiff's status as a Peace Officer. Following his

resignation, plaintiff made numerous request for copies of his field file and the internal affairs investigation, Finally, at times expressly 2008,

pursuant to the Open Records Act. plaintiff received a termination therein.

on January 11,

copy of his file and learned then that the form had been placed copy of the

letter and disciplinary action 2008,

On January 25,

plaintiff received a

internal affairs investigation file.

The investigation file is not

contained in plaintiff's file, but rather is a separate file subject to the Georgia Open Records Act. On January 27, 2009, a full year after learning that the

objectionable material was in his file,
4

plaintiff requested that

defendant Marta remove the termination letter and disciplinary action form from his field file because that material was inaccurate,

inasmuch as plaintiff had resigned and had not been disciplined. That same day, defendant Marta denied plaintiff's request. On January 30, 2009, plaintiff alleges that he received

information directly from Best Buy that suggested committed against him.' Purportedly from this

a fraud had been new information,

plaintiff infers, and now alleges, that the defendants had a "stake" in implicating the plaintiff in these events, as, otherwise, the

defendants would have been blamed for the misallocation of federal funds that occurred as a result of the Best Buy purchases. Indeed,

according to plaintiff, it was a Lt. Heggs who was responsible for the Best Buy purchases and account, and defendants well knew that, as they had authorized Lt. Heggs to make the purchases. From all this,

plaintiff concludes that the defendants were motivated to avoid a name-clearing hearing, which goal they accomplished by persuading the plaintiff to resign. Following plaintiff again this realization, that at some time Marta in March 2009, the

requested

defendant

remove

all

2 Plaintiff's allegations are rambling and wordy, so the logic of this part of his narrative is difficult to follow. Nevertheless, the Court infers that the facts plaintiff learned suggested to him that the conclusions in the original disCiplinary report were inaccurate as to him.

5

conflicting information from his field file, and, for the first time, plaintiff requested that defendant Marta give him a Name-Clearing Hearing. requests. Since that time, plaintiff has learned that potential employers have reviewed his field file. Specifically, the United States Secret Service, to whom plaintiff applied for a job in November 2008, In May of 2009, defendant Marta denied plaintiff's

reviewed plaintiff's field file in November 2009. 3 In March 2010, the Fulton County Distr Attorney notified

plaintiff that he would not be pursuing criminal charges against plaintiff as a result of the above events. Shortly thereafter, on

April 14, 2010, plaintiff filed suit in this Court.
II.
CLAIMS ALLEGED IN PLAINTIFF'S ORIGINAL COMPLAINT

Plaintiff complaint
[1].4

sets

out

three

federal

claims
§

in

his

original

Count I is denominated as a

1983 claim and it

alleges that the above conduct by the defendants violated plaintiff's substantive and procedural due process rights, as set out in the

3 Plaintiff's briefing suggests his belief that the Secret Service may have decided not to offer him a position as a result of the material in plaintiff's MARTA file.

Plaintiff also sets out a state law claim alleging fraud by the defendants. The defendants have not sought to dismiss this count in this motion, except to ask the Court not to accept supplemental jurisdiction of any state law claim, if the Court dismisses all federal claims. As set out infra, the Court has not dismissed all the plaintiff's federal claims.
6

Fourteenth Amendment. any other appropriate plaintiff to resign,

Plaintiff requests a name-clearing hearing and relief. through Count the II alleges that of false by coercing the

use

information,

defendants constructively discharged him. Plaintiff is not clear as to what constitutional Perhaps, he amendment is a constructive discharge would Due

implicate.

asserting the

Fourteen Amendment

Process clause in support of this claim as well, as the only specific relief he requests is a name-clearing hearing. Count III, which is

presumably directed at only the two individual defendants, claims a conspiracy to interfere
§

with

the

plaintiff's

civil

rights,

in

violation of 42 U.S.C. for this claim.

1985(3).

Plaintiff seeks monetary damages

Defendants have filed a motion to dismiss the complaint, which, along with other miscellaneous motions, this Court addresses in this Order.
DISCTJSSION I. DEFENDANTS' MOTION TO DISMISS [11]5
A. Applicable Standard

In deciding a motion to dismiss, the Court assumes that all the

5 Although defendants' motion to dismiss was filed prior to plaintiff's efforts to amend his complaint, the Court is assuming that nothing in that amended complaint would affect the merits of defendants' motion. Since the filing of the motion, however, the service of process issue has been resolved and, therefore, defendants no longer assert it as a ground for dismissal.

7

allegations

i~

the complaint are true and

co~strues

all the facts in

favor of the plaintiff. Cir. 2005)

Scott v. Taylor, 405 F.3d 1251, 1253 (11th

(citation omitted).

That said, a complaint "must contain to 'state a claim to

sufficient factual matter,

accepted as true,

relief that is plausible on its face.'" , 129 S. Ct. 1937, 1949 (2009)

Ashcroft v. Iqbal, 556 U.S.

(quoting Bell Atlantic v. Twombly,

o

U.S.

544,

570

(2007)).

"[Wjhen the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged," then the "claim has facial plausibility."
Id.

A court must undergo a three-step analysis when considering a Rule l2(b) (6) motion to dismiss. element of the cause action
a~d

The court first must identify each then identify the allegations that
Id. at 1950-51.

are not entitled to the "assumption of truth." Court must disregard "[llegal conclusion[sj

The

couched as

II

factual

allegation[sJ" and "[tlhreadbare recitals of the elements of a cause of action, suppo::-ted by mere concluso::-y statements."
Id. at 1949-51.

Finally, the Court must consider the ::-emaining well-pleaded factual allegations to determine if they "plausibly" suggest an entitlement to relief.
B.
Id.

at 1950.

Statute of Limitations Defense

Defendants contend that the applicable statute of limitations for federal claims is two years and that plainti
8

's Complaint should

be dismissed because plaintiff filed it more than two years after his cause of action arose. Defendants argue that the operative events in March 2007, which is more At

occurred when the plaintiff resigned,

than three years before he filed this lawsuit, on April 14, 2010. the latest, defendants contend,

plaintiff was aware of the facts

giving rise to this cause of action on January 25, 2008, by which date he had learned that the offending documents (the termination

letter and the investigative file) were still in his field file and in the Internal Affairs file. Thus, according to (Defs.' Mot. to Dismiss plaintiff should [11] at 6-8.) filed his

defendants,

have

lawsuit by January 25, 2010, but instead, he missed the deadline by approximately three months. In his response, plaintiff agrees that a two-year statute of

limitations applies to his federal claims. He likewise agrees with defendants that a statute of limitations does not begin to run until the facts that would support the cause of action are apparent, should be contends, apparent, however, to that a reasonably prudent not person. begin to or

Plaintiff run until

the

statute did

January of 2009, when, through an Open Records Act request, plaintiff recei ved documentary evidence that plaintiff believes proves Lt. Hegg to be guilty, and the plaintiff to be innocent, of the conduct on

which the defendants purportedly based their decision to seek his

9

termination.

(Pl.'s Resp.

[13] at 9-12.)6

In reply, defendants repeat their contention that, by January 2008, the plaintiff was aware that the inaccurate letter of

termination and an investigative file was in existence. defendants note,

Indeed,

plaintiff was aware of the existence of all the

documents that he sought to have removed from his file by January 2008. (Defs.' Reply Br. [18] at 2-4.)

To determine whether or not the plaintiff has complied with the applicable limitations period, the Court must first identify the

standard governing such questions.

Citing Rozar v. Mullis, 85 F.3d

556, 561-62 (11th Cir. 1996), defendants indicate that, under federal law, the statute of limitations does not begin to run until the facts that would support the cause of action are apparent, apparent, rights. to a person with a reasonably prudent or should be his

regard for

Further, in analyzing the issue, a court must:

(1) identify

the alleged injuries and (2) determine when plaintiff could have sued for them.
ld.

Defendants further cite Penoyer v. Briggs, 206 Fed.

App'x 962, 964-965 (11th Cir. 2006) in arguing that a plaintiff does not have to know all the facts regarding the details of his claim, but merely all the facts that would be necessary to support his cause

6 At least, that is what the Court is assuming plaintiff is lengthy contending. Plaintiff's pleadings focus mainly on recitations of the facts. It is difficult, however, to identify precisely what plaintiff's leaal arguments are.

10

of action.

(Defs.' Reply Br.

[18) at 3-4.)

The question for the Court, then, is when would the plaintiff be deemed to have learned of the existence of facts sufficient to support a cause of action. To answer that question, the Court must

necessarily identify the elements for the particular cause of action. Unfortunately, neither party has attempted to identify the elements for a procedural due process claim that is based on the failure to provide an employee with a name-clearing hearing. The Court has

therefore attempted, on its own, to identify those elements. The Eleventh Circuit has held that § 1983 does not provide the basis for a cause of action for reputational damage, alone. damage to one's reputation is sustained in When the with

connection

termination of government employment, however, § 1983 may give rise to a procedural due process claim for deprivation of liberty.
V.

Cotton

Jackson, 216 F.3d 1328, 1330 (11th Cir. 2000).

To recover under

such a theory,

the plaintiff must satisfy a six-factor test that (1) a false statement, a governmental (2) of

requires a showing of the following: a stigmatizing nature, (3)

attending

employee's

discharge,

(4) that was made public, (5) by the governmental employer,

(6) without a meaningful opportunity for an employee name-clearing hearing.

rd.

The hearing in question can be held either before or

after the termination or publication of stigmatizing information. rd. Here, the false statements at issue appear to be the letter of
11

termination and disciplinary action, which plaintiff would contend falsely indicate that he was fired and disciplined, when plaintiff contends that he was not. Plaintiff also appears to allege that the

investigative materials contained in the various files disparage him by falsely suggesting his complicity in the unauthorized creation of an account and purchases at Best Buy. Further, these "statements" were stimatizing and were made in

connection with the plaintiff's termination from his governmental employment. public, In addition, at some point, these statements were made though this the Georgia Open to Records Act or through of the

either

communication of plaintiff.

information

potential

employers

Finally, the defendants offered the plaintiff no hearing

at which he could clear his name at the time of termination, as they did not even inform the plaintiff that they were firing him; he was told that he was being allowed to resign. Likewise, after plaintiff

later learned that the defendants' position was that they had fired the plaintiff, he requested a name-clearing hearing, Which request was declined. Accordingly, the plaintiff has set out all the elements for a reputational claim. The question for the Court though is whether

defendants have adequately demonstrated that the plaintiff filed his complaint more than two years after he gained knowledge of facts that a reasonably prudent person should have realized would support the
12

cause of action in question. pleadings, yet.

Given the terseness of the defendants'

the Court cannot say that defendants have done so just

As to the false statements, the plaintiff would appear to have clearly been on notice, no later than January 2008, that the false termination letter and disCiplinary action form was in his file. Plaintiff also avers, however, that other false investigative

naterials were in his file and it appears that he did not learn of this information until January 2009. Perhaps, the plaintiff could

have been more diligent and learned of these materials sooner, but from the dearth of discussion of this issue in the pleadings, the Court would be speculating if it drew that inference at this

juncture.

Further,

the defendants do not indicate how the Court

should calculate the statute of limitations period when the plaintiff was aware of some false statements, but not others, outside the

linitations period. As to the defendants having made the information public, the

Court cannot identify exactly when that event would have occurred, for purposes of a statute of limitations analysis. defendants may argument, but, ultimately have at this juncture, a winning In short, the limitations

statute of

there are too many dots for the based on the pleadings now

Court to have to connect on its own, before it. Accordingly, the Court 13

DENIES

without

prejudice

defendants'

motion

for

dismissal

based

on

's

alleged

violation of the statute of limitations.'

C.

C~aim
Civi~

That Defendants Conspired '1'0 Vio~ate Plaintiff's Rights In Vio~ation Of 42 U.S.C. § 1985(3)

In Count III, his civil

plaintiff alleges that defendants conspired to rights in violation of 42
U.S.C.
§

1985 (3) .

Defendants contend that plaintiff has failed to plead an essential element of this claim and therefore the claim must be dismissed. Court agrees.' In order to maintain a cause of action under section 1985(3), a plaintiff must depriving, plead "(1) a conspiracy; (2) for the purpose of The

either directly or indirectly,

any person or class of

persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or

property or deprived of any right or privilege of a citizen of the United States." Lucero v. Operation Rescue of Birmingham, 954 F.2d

Defendants likewise do not sufficiently explain why the statute of limitations would have expired for 's other two federal claims. · Defendants also contend that the "intracorporate doctrine" bars plaintiff's conspiracy claim. The briefing of both parties is so abbreviated on this issue, however, that it is difficult for the Court to make out how this doctrine should apply in this case. Accordingly, the Court does not consider this defense in reviewing defendants' motion. 14

624, 628

(11th Cir. 1992) (citations omitted).

The second element, however, requires a plaintiff to show "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.fl allegations in his complaint that
Id.

Plaintiff includes no this requirement.

satisfy

Plaintiff's failure to adequately plead this element is therefore fatal to his complaint. In addition, the Court can find no response by plaintiff to this particular argument by the defendant s. Accordingly, the claim is

also subject to dismissal based on the plaintiff's failure to oppose this defense by defendants, which the Court construes to be an

abandonment of his claim.

See Kirkland v.

Cnty.

Comm'n of Elmore

Cnty., Ala., 2009 I'lL 596538, at *2 (M.D. Ala. March 6, 2009) (Fuller,

C.J.) (collecting cases from this Circuit and others showing that the failure to respond to a legal argument constitutes abandonment and warrants dismissal of a claim); Hudson v. Norfolk S. Ry. Co., 209 F. Supp. 2d 1301,1324 (N.D. Ga. 2001) (Carnes, J.) (when a party fails to respond to an argument or otherwise address a claim, the Court deems such argument or claim to have been abandoned.) (citing Resolution
Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995)).

Consequently, due to plaintiff's failure to plead the necessary elements of a claim under § 1985(3), the Court DISMISSES plaintiff's Count III. 15

D. In

Constructive Discharge Claim Count II, plaintiff alleges that defendants created

employment conditions so intolerable that they forced plaintiff to resign, thereby causing him to be constructively discharged. Court infers that plaintiff is arguing that the The

defendants

essentially lied to him about their beliefs that he was culpable in the Best Buy imbroglio, when, in fact, the defendants knew the true story. These lies, presumably, caused him to agree to resign. This

conduct by the defendants would appear to be the basis for the claim of constructive discharge. Defendants' only basis for its motion to dismiss this count is the statute of limitations argument previously rejected by the Court as not being fleshed out sufficiently to permit a dismissal. There

being no other ground argued by the defendant for this claim, the Court denies without prejudice defendants' motion to dismiss this claim. That said, the claim appears quite vulnerable to dismissal based on a properly-made argument. Defendants note, in passing, that there

is no separate cause of action under federal law for a constructive discharge and that such a claim must be brought under do not further explore the ramifications of this
§

1983.

They and

statement,

instead default to their statute of limitations argument. In order that future briefing will be appropriately focused when
16

summary judgment motions are filed,

the Court notes its agreement

that there is no stand-alone constructive discharge cause of action in federal law.

See Smith v. Akstein, 408 F. Supp. 2d 1309, 1324 n.

17 (N.D. Ga. 2005) (Duffey, J.) (adopting R&R of Hagy, Mag.) (finding no authority for the position that a constructive discharge allegation can exist as a separate cause of action under federal law) (citation omitted) . A constructive discharge may be actionable as an adverse

employment action, under federal employment statutes, such as Title

VII.

But

this

is

not

an

action brought

pursuant

to

a

federal

employment statute.

A constructive discharge could be actionable as

part of a § 1983 claim, but the plaintiff would first have to allege that the constructive discharge Thus far, arose out of a violation of a

constitutional right. allegation. parties

plaintiff has failed to make this
su~ary

Accordingly, focus on

in any motions for what, at this

judgment, the to be a

should

point,

appears

substantial gap in the allegations supporting this claim. There being no appropriate argument justifying dismissal of this count, however, the Court DENIES WITHOUT PREJUDICE defendants' motion to dismiss Count II.

III. QUALIFIED rMMUNITY OF INDIVIDUAL DEFENDANTS
The above discussion deals with defendants' motion to dismiss the three federal claims as to all defendants based on a statute of
17

limitations defense and,

in the case of Count III, the plaintiff's The Court has

failure to plead an essential element of the claim.

granted defendants' motion to dismiss Count III, but not the first two counts. Accordingly, the question is whether the individual defendants should receive qualified immunity on these two remaining counts. Citing Chesser v. Sparks, 248 F.3d 1117 (11th Cir. 2001) and Lassiter
v. Ala. A&M Univ. Bd. of Trustees,

28 F.3d 1146,

1149

(11th Cir.

1994),these defendants argue that they are immune from suit unless the plaintiff shows that their conduct violated clearly established constitutional or statutory rights. (Defs.' Reply Br. [18] at 7.)

Defendants contend that plaintiff has failed to do so. In his response, plaintiff makes no effort to demonstrate, as to Count II, that clearly established law would have put the individual defendants on not that their conduct constituted a constructive As the Court

discharge of the plaintiff in violation of federal law.

has previously noted, there is no stand-alone constructive discharge claim in federal law and plaintiff has failed to explain what

constitutional or statuory right was contravened by the plaintiff's resignation, whether improperly forced or not. Moreover, plaintiff's termination, or forced resignation, is an element of his procedural due process claim. He has not shown how this single element of one

cause of action can give rise to a different cause of action.
18

Accordingly, the Court GRANTS the individuals defendants' motion for qualified immunity as to Count II. As to Count
~,

which, when read generously, alleges a violation

of plaintiff's liberty interest under the procedural prong of the due process clause, plaintiff does set out, at length, many facts that purportedly show that defendants did him wrong. Plaintiff does not,

however, try to tie that conduct to the elements of a federal claim. Indeed, as noted, neither party has set out in their briefing the procedural due process claim based on reputational

elements of a

injury associated with dismissal from a governmental job. As the Court has identified those elements previously, it will repeat them here. requires: A procedural due process claim in this context (2) of a stigmatizing nature, discharge, (4) (3)

(1) a false statement,

attending a governmental employee' s public,

that was made

(5) by the governmental employer,

(6) without a meaningful

opportunity for an employee name clearing hearing. The plaintiff's allegations set out each of these elements as to the individual defendants. There is no dispute that the defendants,

collectively, publicly provided stigmatizing information concerning the plaintiff in connection with what they viewed as his termination, and they did not provide him a name-clearing hearing. will presumably contend that they made no false Defendants but

statements,

plaintiff alleges that they did,

and the Court must

assume this

19

statement

to

be

true.

Accordingly,

notwithstanding

the

spare

briefing by both parties on this issue,

the Court concludes that

plaintiff's allegations, if true, would violate clearly established law. Therefore, the Court DENIES without prejudice the individual motion for qualified immunity as to this count.' In

defendants' summary, Count :::.
IV.

the individual defendants

remain as defendants only for

MOTIONS TO AMEND COMPLAINT

After the defendants had

led their motion to dismiss,

the

plaintiffs filed a motion to amend [20] and, one week later, a "First Amended Complaint" [21]. to amend his complaint According to plaintiff's motion, he sought to address defendants' allegation that

plaintiff had relied upon information in his response brief to the motion to dismiss that was not included in the original complaint. (Pl.'sMot. toAmendCompl. [20] at 2.)

As best the Court can determine, plaintiff kept the same three

9 The Court's denial is made without prejudice and, accordingly, the individual defendants are free to refile this motion and more thoroughly brief the question of qualified immunity. It would seem to the undersigned, however, that it would be more cost-effective for the client to simply rebrief this issue as part of a motion for summary judgment that will presumably be filed following the conclusion of discovery. Indeed, as the individual defendants were the major players in the events at issue, they will likely be participating in discovery to the same extent, whether or not they are subject to this one count. Further, the litigation will be proceeding as to defendant MARTA regardless of whether defendants refile a motion for qualified immunity.

20

federal claims and the same state law claim that he had raised in his original complaint. He simply added more allegations.
nUIT~ered

Thus, whereas

the original complaint contained 116

paragraphs, this second Defendants largely on

proposed complaint contained 124 numbered paragraphs. objected to plaintiff's effort to amend his complaint, futili ty [22] . ) grounds. (Defs.' Opp' n to Pl.' s v.ot.

to Amend Compl.

Then, several months later, plaintiff filed a Second Motion to Amend Complaint [29], indicating that he had become aware of

additional information pertinent to his claims. a "Second Amended Complaint."
nUIT~ered

Plaintiff attached This Second Amended

([29-1] .) paragraphs.

Complaint includes 383

As best the Court can

discern, the difference in this complaint and the others, as far as federal claims are concerned, is that the plaintiff has broken down his original Count I
§

1983 claim down

into

three

counts,

each

alleging a § 1983 violation. Mainly, it appears that plaintiff has broken the claim down in order to allege three separate remedies: the removal of the

termination letter, disciplinary action and investigative report from all filed (Count I); the removal of a particular false statement in one of these reports (Count II); and the removal of a CD from one of the reports (Count III). All three counts also seek a name-clearing

hearing and monetary damages. As the plaintiff could have sought all 21

of this relief in one count, the Court sees no substantive difference between this version of the complaint and the original iteration. Count IV then alleges a constructive discharge, as did Count II in the original complaint; Count V alleges a § 1985(3) conspiracy, as did Count III in the original complaint. Count VI alleges a state

law fraud claim, as did Count IV in the original complaint. Plaintiff then adds six more state law claims alleging libel by the individual defendants and negligent hiring and retention by defendant MARTA.'" Defendants objected to plaintiff's motion, contending that this third motion set forth no new material information and was not timely. (Defs.' Opp'n to Pl.'s Second Mot. to Amend Compl. The Court concurs with defendants' multiple, moving claims, and increasingly lengthy, Nevertheless, [32].)

concerns that plaintiff's tend to create a

complaints he has

target.

although

renumbered

these

plaintiff has not added any new federal

claims with his

latest complaint.

As two of plaintiff's federal claims still remain,

following this ruling and as it makes sense to use plaintiff's most current iteration as the operative complaint, the Court
GRANTS

plaintiff's Second Motion to Amend Complaint :29] and DENIES as moot

10 The counts are denominated: Count VII-libel, Count VIII libel; Count VIV (sic) (should be Count IX) -negligent hiring, retention, or supervision; Count X (the same); Count XI (the same); and Count XII (the same).

22

plaintiff's Motion to Amend Complaint [20]. Translating the effect of this decision, the Court has dismissed only one of plaintiff's original federal claims (the § 1985(3)

claim) and as that claim is repeated in the Second Amended Complaint, it is deemed to be dismissed in the Second Amended Complaint, well. The remaining federal claims proceed forward, as

along with

plaintiff's seven state law claims. Although these state law claims remain, defendants have not had an opportunity to move to dismiss the six newly-added claims. To

allow for that and to expedite the litigation of the federal name clearing claims that plaintiff is most interested in, the Court will not require the defendants to fi an answer to the state law claims Moreover, as

nor will it require any discovery for those claims."

it is uncertain that plaintiff's federal law claims will survive a motion for summary judgment, defendants are not required to file a motion for
su~~ary su~~ary

judgment on any state law claim at the time that If any of plaintiff's federal law

judgment motions are due.

claims survive, the Court will then confer with the parties regarding the course of proceedings for the state law claims.

I. The Court will not require discovery for the state law claims, but it has no objections to the parties voluntarily pursuing that discovery, as much of the discovery should overlap with discover on federal law claims and as this discovery will have to be done even if the federal claims are ultimately dismissed and the state law claims are sent to state court for litigation.

23

V.

PLAINTIFF'S REMAINING MOTIONS
Plaintiff has filed additional motions attempting to revisit his

earlier motion for an injunction:

Motion To Alter Or Amend Order

Denying Plaintiff Request For Temporary Injunction And/Or Preliminary Injunction [25J; Motion For Preliminary Injunction [30J; and Motion To Supplement Plaintiff's Motion For Temporary Injunction And/Or

Preliminary Injunction And Motion To Supplement Plaintiff's Motion To Reconsider Denial Of Plaintiff's Motion For Temporary Inj unction

And/Or Preliminary Injunction [31].

The Court DENIES these motions.

Even if plaintiff were treated badly or unfairly by the defendants, not all bad conduct gives plaintiff's federal rise to a remain federal on cause of action and legal ground.

claims

shaky

Accordingly, plaintiff has still failed to convince the Court of his ultimate likelihood of success on these claims. As to plaintiff's request for oral argument [19], the Court

DENIES that request. CONCLUSION
For the foregoing reasons, the Court GRANTS in part and DENIES in part Defendants' Motion to Dismiss Plaintiff's Complaint [11];

DENIES Plaintiff's Motion for Oral Argument on Defendant's Motion to
Dismiss
[~91;

DENIES as moot Plaintiff's Motion to Amend Complaint

[20]; GRANTS Plaintiff's Second Motion to Amend Complaint [29]; and

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DENIES Plaintiff's Motion to Alter or Amend Order Denying Plaintiff's

Request for Temporary Injunction and/or Preliminary Injunction [25], Motion For Preliminary Injunction Plaintiff's Motion For Temporary
[30J,

and Motion To Supplement And/Or Preliminary

Injunction

Injunction And Motion To Supplement Plaintiff's Motion To Reconsider Denial Of Plaintiff's Motion For Temporary Injunction And/Or

Preliminary Injunction [31]. Defendants shall file an Answer as to all federal claims by
April 25, 2011. August 30, 2011.
20, 2011.

Discovery shall begin on May 2, 2011, and end on Summary judgment motions will be due on September

'7

~

SO ORDERED, this

-)e-Jday of MARCH, 2011.

E. UNITED STATES DISTRICT JUDGE

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