Walker v. City of Atlanta et al
Filing
10
ORDER and OPINION denying 2 Defendants' Motion to Dismiss. Signed by Judge Julie E. Carnes on 3/14/12. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
PATRICIA WALKER, Individually
and in her Capacity as
Administrator of the Estate of
DONALD HAMILTON, deceased,
Plaintiff,
CIVIL ACTION NO.
v.
1:11-cv-1167-JEC
CITY OF ATLANTA, a Municipal
Corporation of the State of
Georgia; ANDREW TADDEI,
Individually and in his
official capacity as a Police
Officer of the City of Atlanta;
ADAM WRIGHT, Individually and
in his official capacity as a
Police Officer of the City of
Atlanta; COREY SAUBERAN,
Individually and in his
official capacity as a Police
Officer of the City of Atlanta;
RICHARD PENNINGTON,
Individually and in his
official capacity as Chief of
Police of the City of Atlanta;
and John Does 1-15,
Individually and in their
official capacity as Police
Officers of the City of
Atlanta,
Defendants.
ORDER AND OPINION
This case is before the Court on Defendants’ Motion to Dismiss
[2].
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The Court has reviewed the record and the arguments of the
parties
and,
for
the
reasons
set
out
below,
concludes
that
Defendants’ Motion to Dismiss [2] should be DENIED.
BACKGROUND
The present action arises out of plaintiff’s allegations of
defendants’ use of excessive force that resulted in the death of
plaintiff’s son, Donald Hamilton.
On May 8, 2008, Hamilton and a friend went to a club in Atlanta,
Georgia.
(Compl. [1] at ¶ 16.)
Following a verbal altercation with
a bathroom attendant, Hamilton was escorted off the premises by an
off-duty Atlanta police officer.
ejection,
Hamilton’s
friend
(Id. at ¶¶ 17-18.)
attempted
to
convince
the
After his
off-duty
officer to allow Hamilton back into the club, but the officer refused
to do so.
(Id. at ¶¶ 19-20.)
While Hamilton was waiting for his friends to leave, he began to
walk down the street.
(Id. at ¶ 21.)
By this time in the evening,
however, Hamilton appeared visibly drunk, was randomly talking to
people, and openly brandishing a gun, prompting the bystanders who
witnessed this behavior to dial 911.
(Id. at ¶ 22.)
Defendants Taddei, Wright, and Sauberan (collectively, the
“officers”), were dispatched to Hamilton’s location.
(Id. at ¶ 24.)
Upon arrival, the officers, with guns drawn, instructed Hamilton, who
was still holding the firearm, to put his hands up.
(Id. at ¶ 25.)
As Hamilton was complying with their orders, the officers discharged
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their weapons, wounding him in his arms and legs.
(Id. ¶ 26.)
Defendant Wright then handcuffed him. (Id. at ¶ 27.)
Despite the
fact that Hamilton was subdued, wounded, and in handcuffs, defendant
Wright shot Hamilton in the back of the head, killing him instantly.
(Id.)
After shooting Hamilton, the officers planted a “throw down
knife” in his buttocks to suggest that he still posed a threat to
them at the time he was shot and killed.
(Id. at ¶ 32.)
On August 27, 2008, plaintiff’s counsel sent the City of Atlanta
(“the City”) an ante litem notice regarding, amongst other claims,
Hamilton’s wrongful death.
Gwendolyn
Burns,
a
claim
(Id. at ¶ 11.)
investigator
for
On September 8, 2008,
the
City,
wrote
to
plaintiff’s counsel to inform her that she had received the notice,
would investigate the claim, and would report her findings to the
City Attorney for a recommendation to the City Council.
(Sept. 8,
2008 Letter from Gwendolyn Burns, attached to Pl.’s Resp. [7] as Ex.
B.)
In the letter, Ms. Burns told counsel that “[i]n the event that
your claim receives an unfavorable recommendation, you will be
notified of this action through the office of the Clerk of Council.”
(Id.)
Hearing no update from the City, plaintiff’s counsel wrote to
Ms. Burns on June 28, 2010, to check on the status of her client’s
claim.
(June 28, 2010 Letter from Pl.’s Counsel, attached to Pl.’s
Resp. [7] at Ex. C.)
Plaintiff’s counsel did not receive a response
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from the City.
(Pl.’s Counsel’s Aff. at ¶ 3, attached in supp. of
Pl.’s Resp. [7].)
In the time between Ms. Burn’s September 2008 letter and
plaintiff counsel’s June 2010 letter, however, the City had, on April
20, 2009, denied plaintiff’s claim.
Defs.’ Mot. Dismiss [2] at Ex. B.)
(Claim Denial, attached to
Four days later, on April 24,
2008, the City’s Municipal Clerk’s Office issued a letter addressed
to plaintiff’s counsel notifying her that her client’s claim had been
denied by the City Council.
(Apr. 24, 2008 Letter from Rhonda
Dauphin Johnson, Municipal Clerk, attached to Defs.’ Mot. Dismiss [2]
at Ex. B.)
letter.
Plaintiff’s counsel states that she never received this
(Pl.’s Counsel’s Aff. [7] at ¶ 2.)
On April 1, 2011, plaintiff counsel’s paralegal discovered that
the City had denied plaintiff’s claim two years before.
(Pl.’s
Counsel’s Paralegal’s Aff. at ¶ 3, attached in supp. of Pl.’s Resp.
[7].)
Ten days later, on April 11, 2011, plaintiff filed the
underlying action asserting claims under 42 U.S.C. § 1983.
(Compl.
[1].) Arguing that the statute of limitations has run on her claims,
defendants now file the present motion to dismiss [2].
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DISCUSSION
I.
MOTION TO DISMISS STANDARD
In deciding a motion to dismiss, the Court assumes that all of
the allegations in the complaint are true and construes all of the
facts in favor of the plaintiff.
Scott v. Taylor, 405 F.3d 1251,
1253 (11th Cir. 2005)(citation omitted).
That said, a complaint
“must contain sufficient 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 (2009)(quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“[W]hen 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 12(b)(6) motion to dismiss.
The court first must identify each
element of the cause of action and then identify the allegations that
are not entitled to the “assumption of truth.”
Id. at 1950-51.
The
court must disregard “[l]egal conclusion[s] couched as [] factual
allegation[s]” and “[t]hreadbare recitals of the elements of a cause
of action, supported by mere conclusory statements.” Id. at 1949-51.
Finally, the court must consider the remaining well-pleaded factual
allegations to determine if they “plausibly” suggest an entitlement
to relief.
Id. at 1950.
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II.
THE STATUTE OF LIMITATIONS DOES NOT BAR PLAINTIFF’S CLAIMS
Claims brought under 42 U.S.C. § 1983 are torts, subject to the
statute of limitations governing personal injuries in the state where
the § 1983 action has been brought.
McNair v. Allen, 515 F.3d 1168,
1173 (11th Cir. 2008). In Georgia, the two-year time frame set forth
in O.C.G.A. § 9-3-33 governs § 1983 actions.
Brown v. Lewis, 361
Fed. App’x 51, 54 (11th Cir. 2010)(citing Mullinax v. McElhenney, 817
F.2d 711, 716 (11th Cir. 1987)).
While a § 1983 plaintiff need not comply with state exhaustion
requirements prior to filing suit in federal court, if he chooses to
do so, a court must give him the benefit of any tolling period
created by his compliance.
Cir. 1987).
Lawson v. Glover, 957 F.2d 801, 806 (11th
The applicable exhaustion statute in the present matter
is O.C.G.A. § 36-33-5, which requires that, prior to filing a tort
against a municipality, a plaintiff “present[s] the claim in writing
to
the
governing
authority
of
the
municipal
corporation
for
adjustment, stating the time, place, and extent of the injury, as
nearly as practicable, and the negligence which caused the injury.”
Info. Sys. and Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1228
(11th Cir. 2002)(citing O.C.G.A. § 36-33-5(b)).
Following notice to
the municipality, the claimant cannot file suit until either the
municipality
acts
on
the
claim
or
(citations omitted).
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30
days
have
passed.
Id.
In applying O.C.G.A. § 36-33-5, a court should calculate the
time between when the cause of action arose and when the suit was
commenced--which is thirty-five (35) months in the present case--and
subtract from that number the time the claim was pending with the
municipality.
See Simon v. City of Atlanta, 287 Ga. App. 119, 121
(2007)(demonstrating how O.C.G.A. § 36-33-5(c)-(d) is to be applied).
This second number--the time the claim was pending with the City--is
the sole point of dispute between the parties.
Indeed, the parties
agree as to how to calculate the time period: that is, the time
period is measured from the date the City received ante litem notice
to the date the City notified plaintiff of the City’s denial.
(See
Def.’s Reply [8] at 1)(“[i]t appears that the only issue left for the
court to resolve is the issue of receipt of notice of the denial to
opposing counsel.”)
Defendants contend that plaintiff received notice on April 24,
2009,1 which was the date the Municipal Clerk allegedly mailed
plaintiff’s counsel notice of the City’s denial.
If accurate, this
would mean that the claim was pending for eight (8) months and,
1
Whether or not O.C.G.A. § 36-33-5 or Simon requires a
municipality to send notice of denial and the plaintiff to actually
receive said notice is not presently before the Court. Defendants
choose April 24, 2009, the date a letter was allegedly mailed to
plaintiff’s counsel, as opposed to April 20, 2009, the date the claim
was denied, as the operative date for the running of the statute of
limitations.
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accordingly, the statute of limitations was tolled for that same
period of time.
Plaintiff, however, contends that she did not
receive notice of denial in 2009 and that she only learned of the
denial on April 1, 2011, the date her counsel’s paralegal discovered
that the City had denied her claim.
Plaintiff’s calculation means
that the claim was pending for thirty-two (32) months, and the
statute of limitations was tolled for the same period of time. Using
defendants’ date, the operable accrual time is twenty-seven (27)
months, three months beyond the two-year statute of limitations.
Using plaintiff’s date, the operable accrual time is only a bit over
three (3) months, well within the two-year period.
In examining the present evidence, the Court concludes that
defendants have failed to show that a denial letter was even sent,
much less that plaintiff received notice of the denial. In an effort
to prove the contrary, defendants offer the declarations of Gwendolyn
Burns, Interim Claims Manager for the City of Atlanta, and Rhonda
Dauphin Johnson, the Municipal Clerk of the City of Atlanta. Neither
is sufficient.
Ms. Burns, who works as a claims manager for the City, is in no
position to know whether the Municipal Clerk’s office mailed the
April 24th denial letter to plaintiff’s counsel, as her September 8,
2008 letter indicated would happen in the event of a denial of
plaintiff’s claim.
Ms. Johnson’s conclusory declaration also fails
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to establish the mailing of the April 24th letter.
Ms. Johnson, who
is the City’s Municipal Clerk, essentially states that her office is
in the practice of mailing and filing copies of notification letters
bearing her signature.
(Johnson Decl. at ¶¶ 5-6, attached in supp.
of Defs.’ Reply [8].)
Other than these two declarations, which
together amount to evidence merely that the Municipal Clerk’s office
should have and probably did mail the April 24th letter, defendants
offer no other proof of mailing.
In contrast, plaintiff submits the affidavit of her counsel who
unequivocally asserts that counsel did not receive the April 24, 2009
denial notice.
(Pl.’s Counsel’s Aff. [7] at ¶ 2.)
The fact that
counsel sent a letter to Ms. Burns in June 2010 requesting the status
of her client’s claim after Ms. Johnson’s office allegedly sent
counsel notice of the City’s denial tends to corroborate plaintiff’s
contention that the City did not mail notice of its denial to her
attorney.
Counsel did not receive a response from Ms. Burns.2
(Id.
at ¶ 3.)
Finally, defendants’ reliance on the “[mailbox] presumption” is
misplaced, as defendants do not adequately demonstrate that the City
mailed the April 2009 letter.
See Rosenthal v. Walker, 111 U.S. 185,
193-194 (1884)(a letter properly mailed is presumed to have been
2
Ironically, defendants obliquely suggest that the City did not
receive plaintiff counsel’s letter. (Defs.’ Reply [8] at 3.)
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received by the addressee); see also Barnett v. Okeechobee Hosp., 283
F.3d 1232, 1239 (11th Cir. 2002); Konst v. Florida E. Coast Ry. Co.,
71 F.3d 850, 851 (11th Cir. 1996).
Equally important, despite how
the parties frame the matter, the issue is not necessarily whether or
not plaintiff received notice of the City’s denial letter, but
whether the City sent notice of the denial letter.
Regardless, the
“[mailbox] presumption” is not unrebuttable, Rosenthal, 111 U.S. at
193-94
(the
presumption
is
“a
mere
inference
of
fact”),
and
plaintiffs have submitted sufficient evidence to do so.
With no other proposed dates of notice before it, the Court
adopts plaintiff’s suggested date of April 1, 2011 as the date on
which plaintiff became aware of the City’s denial and as the date on
which tolling stopped.
As such, the Court finds that the two-year
statute of limitations has not run on plaintiff’s suit, and hereby
DENIES Defendants’ Motion to Dismiss [2].
CONCLUSION
For the foregoing reasons, the Court DENIES Defendants’ Motion
to Dismiss [2].
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So ORDERED this 14th day of MARCH, 2012.
/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE
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