Sampson v. Reed et al
Filing
72
ORDER granting in part and denying in part 37 Motion for Summary Judgment, denying as moot 55 Motion to Strike. Signed by Judge Thomas W. Thrash, Jr on 3/28/13. (dr)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
RICKY J. SAMPSON,
Plaintiff,
v.
CIVIL ACTION FILE
NO. 1:12-CV-500-TWT
KASIM REED
in his official capacity as Mayor of the
City of Atlanta, et al.,
Defendants.
ORDER
This is a civil rights action. It is before the Court on Defendants Kasim Reed,
Robert Godwin, and Reginald Pettis’s Motion for Summary Judgment [Doc. 37] and
on Defendants Kasim Reed, Robert Godwin, and Reginald Pettis’s Motion to Strike
Unauthenticated Documents Used by Plaintiff in Defense Against Defendants’ Motion
for Summary Judgment [Doc. 55]. For the reasons set forth below, the Defendants’
Motion for Summary Judgment [Doc. 37] is GRANTED in PART and DENIED in
PART and the Defendants’ Motion to Strike Unauthenticated Documents Used by
Plaintiff in Defense Against Defendants’ Motion for Summary Judgment [Doc. 55]
is DENIED as MOOT.
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I. Background
Plaintiff Ricky Sampson alleges he was strip searched on February 17, 2010,
outside the West End Mall in Atlanta, Georgia by a unit of the Atlanta Police
Department (“APD”) known as the “Red Dogs.” The Plaintiff alleges that Defendant
Reginald Pettis, a member of the Red Dog unit, grabbed the Plaintiff’s arm and then
strip searched the Plaintiff in the parking lot of the Georgia Power building.
According to the Plaintiff, Pettis pulled down the Plaintiff’s pants and underwear and
searched around the Plaintiff’s genitals and buttocks area. Accompanying Defendant
Pettis were Defendants Godwin and Mayes, as well as Defendant Amarena.
Defendant Godwin stood by the police vehicle during the strip search and did nothing
to intervene. Amarena and Mayes held the Plaintiff’s arms while Pettis performed the
search. (See Statement of Disputed Material Facts in Opp’n to Defs.’ Mot. for
Summ. J. ¶¶ 1-26). Defendants Godwin and Pettis contend they were not present at
the West End Mall area on February 17, 2010, and further contend that they did not
perform a search of or have any physical contact with the Plaintiff on that day.
(Compare Statement of Disputed Material Facts in Opp’n to Defs.’ Mot. for Summ.
J. ¶¶ 1-13 with Defs.’ Resp. to Pl.’s Statement of Disputed Material Facts in Opp’n
to Defs.’ Mot. for Summ. J. ¶¶ 1-13).
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The Plaintiff further alleges that the APD and the Red Dog unit in particular had
a custom, policy, or practice of performing strip searches in public. The Plaintiff
contends that Red Dog unit supervisors encouraged unit members to always check a
suspect’s underwear. The aggressive searching policy was purportedly part of the Red
Dog’s efforts to make their presence known in high crime areas of the city.
(Statement of Disputed Material Facts in Opp’n to Defs.’ Mot. for Summ. J. at ¶¶ 4752). The Plaintiff contends this policy was authorized by Standard Operating
Procedures 3080, § 4.11.2. The Plaintiff further states that APD supervisors,
including the Chief of Police, condoned the practice. (Id. at ¶¶ 30-35). The Plaintiff
notes that the Atlanta Citizen Review Board (“ACRB”) recommended the discipline
and training of several officers regarding the strip searches and searches and seizures
generally in 2009. (Id. at ¶¶ 36-39). The Plaintiff also alleges there have been
numerous citizen complaints since 2007 concerning strip searching. (Id. at ¶¶ 40-41).
The Plaintiff filed this action on February 16, 2012. His complaint asserts
claims for unreasonable search and seizure under the United States Constitution, false
imprisonment, abuse in being arrested, and battery, as well as claims for punitive
damages and for fees and expenses. The Plaintiff initially brought claims against
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Mayor Kasim Reed in his official capacity, and APD Officers Cayenne Mayes,1
Robert Godwin, Reginald Pettis, Stalone Davis, and Luca Amarena, in their individual
capacities. (See Compl. ¶¶ 4-9). The Plaintiff has since dismissed the claims against
Officers Stalone Davis and Luca Amarena. (See [Doc. 62, 70]). Defendant Cayenne
Mayes initially defaulted, but his default was set aside on January 30, 2013.
(See [Doc. 56, 57]). Defendants Reed, Godwin, and Pettis filed the pending motion
for summary judgment.
II. Motion for Summary Judgment Standard
Summary judgment is appropriate only when the pleadings, depositions, and
affidavits submitted by the parties show that no genuine issue of material fact exists
and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
The court should view the evidence and any inferences that may be drawn in the light
most favorable to the nonmovant. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59
(1970). The party seeking summary judgment must first identify grounds that show
the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323-24 (1986). The burden then shifts to the nonmovant, who must go beyond
1
Defendant Cayenne Mayes was discharged from the APD on July 22, 2011.
(Mayes Decl. ¶ 2).
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the pleadings and present affirmative evidence to show that a genuine issue of material
fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
III. Discussion
The Defendants move for summary judgment on several grounds. First, they
contend that the suit against Atlanta Mayor Kasim Reed is a suit against the City of
Atlanta which must be dismissed because the Plaintiff has not shown that his
constitutional rights were violated pursuant to an official policy or custom of the city.
Second, the Defendants contend that Defendants Pettis and Godwin are entitled to
qualified immunity because they acted in their discretionary capacity and did not
violate the Plaintiff’s constitutional rights. Third, the Defendants argue that the state
law claims against Pettis and Godwin must be dismissed because no evidence exists
that Pettis or Godwin searched, seized, or arrested the Plaintiff and because Godwin
and Pettis are entitled to official immunity. Finally, the Defendants contend the
Plaintiff’s claims for punitive damages and for costs of litigation must be dismissed
because the underlying state tort claims should also be dismissed.
A.
Claims Against Mayor Reed and the City of Atlanta
The Plaintiff’s claims against Mayor Reed in his official capacity as Mayor of
Atlanta are construed as claims against the City of Atlanta. See Kentucky v. Graham,
473 U.S. 159, 165-66 (1985) (quoting Monell v. New York City Dept. of Social
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Services, 436 U.S. 658, 690 n.55 (1978)) (“an official-capacity suit is, in all respects
other than name, to be treated as a suit against the entity”). Municipal entities, such
as the City of Atlanta, are liable only for constitutional violations arising from an
official policy or custom. City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989).
A “policy” in this context is “a decision that is officially adopted by the municipality,
or created by an official of such rank that he or she could be said to be acting on
behalf of the municipality.” Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489
(11th Cir. 1997) (quoting Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1479-80
(11th Cir. 1991)). “A custom is a practice that is so settled and permanent that it takes
on the force of law.” Id. (quoting Monell, 436 U.S. at 690-91).
Here, the Plaintiff has not shown that there was a City of Atlanta policy
directing APD officers to perform illegal strip searches. The Plaintiff provides
evidence that the Red Dog units were instructed to conduct strip searches of as many
suspects as possible. (See Mayes Decl. ¶ 7). However, these instructions from the
supervisors of a unit within the APD do not reveal a policy “created by an official of
such rank that he or she could be said to be acting on behalf of the [City of Atlanta].”
See Sewell, 117 F.3d at 489 (quoting Brown, 923 F.2d at 1479-80). Likewise, the
Plaintiff states that the practice of strip searching was not stopped by the Chief of
Police until the end of 2011 despite evidence that he was aware of it before then.
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Even assuming the chief was aware of the strip searches, this does not indicate that
there was a policy created or adopted by a municipal official. See id. Additionally,
the Plaintiff states that the strip search policy was embodied in Standard Operating
Procedure 3080, § 4.11.2. (See Mayes Decl. ¶¶ 16-17, Ex. 1). But section 4.11.2
specifically states that a strip search of a suspect is only appropriate when there is
reasonable suspicion following a lawful arrest or when the officer possesses a search
warrant. (See id. Ex. 1). The Plaintiff has not shown there was a policy in the City
of Atlanta directing APD officers to perform strip searches.2
The Plaintiff separately argues that the City of Atlanta had a custom of
conducting illegal strip searches. To establish a custom, “it is generally necessary to
show a persistent and widespread practice.
Moreover, actual or constructive
knowledge of such customs must be attributed to the governing body of the
2
The Plaintiff also contends that the City of Atlanta ratified the strip search
practice. “For plaintiffs to state a successful § 1983 claim against a municipality
based on a ratification theory, however, ‘they must demonstrate that local government
policymakers had an opportunity to review the subordinate’s decision and agreed with
both the decision and the decision’s basis.’” Garvie v. City of Fort Walton Beach, 366
F.3d 1186, 1189 (11th Cir. 2004) (quoting Thomas v. Roberts, 261 F.3d 1160, 1175
n.12 (11th Cir. 2001), vacated on other grounds by, 536 U.S. 953, reinstated by, 323
F.3d 950)). The Plaintiff has not demonstrated that local policymakers agreed with
the decisions of Red Dog officers to perform strip searches or had the opportunity to
review such decisions. Indeed, the Plaintiff’s own evidence shows that, in 2011, the
Chief of Police took action to stop the strip searching. (See Beamud Decl. ¶ 18).
Accordingly, the Plaintiff has not shown that the City of Atlanta ratified the practice
of performing strip searches.
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municipality.” Church v. City of Huntsville, 30 F.3d 1332, 1345 (11th Cir. 1994)
(quoting Depew v. City of St. Marys, 787 F.2d 1496, 1499 (11th Cir. 1986)).
Likewise, “[a] municipality’s failure to correct the constitutionally offensive actions
of its police department may rise to the level of a ‘custom or policy’ if the
municipality tacitly authorizes these actions or displays deliberate indifference
towards the police misconduct.” Id. (quoting Brooks v. Scheib, 813 F.2d 1191, 1193
(11th Cir. 1987)).
The Plaintiff argues that the ACRB investigated and concluded “there was
indeed a pattern of conducting strip-searches and body-cavity searches, in the field
which had begun at least as far back as 2007.” (Beamud Decl. ¶ 11). The Plaintiff
also notes that Red Dog officers would report their searches of suspects and that those
reports were passed up the chain of command. (Mayes Decl. ¶ 6). Further, the
Plaintiff argues that a series of lawsuits against the City of Atlanta before and after the
alleged strip search of the Plaintiff served to notify the city of the searching custom.
This evidence is insufficient to show that the City of Atlanta had a custom
encouraging APD officers to conduct strip searches. First, the Plaintiff states that the
ACRB conducted an investigation and reported to the Chief of Police its conclusions
that there was a pattern of strip searches. However, the declaration of Cristina
Beamud, the director of the ACRB, does not indicate that the Chief of Police was
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notified of the Red Dog Team’s genital searching of suspects prior to the search of the
Plaintiff. According to the declaration, “[a]s a result of the troubling pattern of
inappropriate searches, on July 14, 2009, the ACRB recommended that the Atlanta
Police Department conduct training regarding Fourth Amendment issues including
‘Terry stops’ and proper procedures for searches. The Chief of Police rejected this
recommendation.”
(Beamud Decl. ¶ 14).
There is nothing in this statement
suggesting that the ACRB informed the Chief of Police of the Red Dog Team’s
practice of performing genital searches. The statement only indicates that the ACRB
recommended Fourth Amendment training. Further, the Plaintiff has not produced a
copy of the recommendation sent to the Chief of Police. The Court will not assume
that the chief was notified of a prevailing custom of conducting strip searches based
on a statement in a declaration stating that the ACRB recommended further training.
Second, the fact that genital or underwear searches of various suspects were put
in police reports that were passed up the chain-of-command for statistical reporting
purposes does not evidence tacit approval of a policy of illegal searches. The Plaintiff
has not shown what form a report would take that makes its way up the chain of
command, nor what information is contained in a report, nor that such a report would
in fact reach a sufficiently high-ranking official. Further, the Court will not assume
that the command at the APD managed to synthesize all of the alleged reports of strip
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searches to learn that the department was consistently engaging in illegal searches and
then approving them by failing to stop them. This is too great an inference at the
summary judgment stage.
Third, the Plaintiff identifies the ACRB investigations that culminated in a 2011
report concluding that APD officers were “unfamiliar with the constitutional
requirements for conducting a search and/or seizure.” (Beamud Decl. ¶ 16). Director
Beamud met with the Chief of Police and the Mayor’s Chief of Operations in 2011 to
discuss the issue. Later, in November 2011, Beamud sent the Chief of Police, the
Mayor, and the City Council letters explaining the pattern of misconduct by Red Dog
officers. (Id. ¶¶ 17-18). Even assuming that these notifications from the ACRB were
sufficient to provide knowledge to the upper management of the APD of the strip
search policy, they were not sent before the February 2010 search of the Plaintiff.
Because the Plaintiff’s constitutional rights must have been violated “pursuant to a
custom,” and because a custom requires the knowledge and tacit approval of the
management, this disclosure was too late to affect the Plaintiff’s claims. See Harris,
489 U.S. at 385.
Lastly, the lawsuits filed against the City of Atlanta do not help the Plaintiff
show a custom of performing strip searches. Only one of the lawsuits concerned an
incident that occurred prior to the search of the Plaintiff. (See Statement of Disputed
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Material Facts in Opp’n to Defs.’ Mot. for Summ. J. at ¶¶ 73-93). There is no
indication that this case, involving Clarence Smith, was reported to the Chief of
Police. Further, the case only involved a single incident that would not have notified
a municipal official of an emerging custom of performing strip searches. (See id. ¶¶
66-68). The Plaintiff is unable to show that his constitutional rights were violated
pursuant to a policy or custom of the City of Atlanta. Accordingly, the Defendants’
motion for summary judgment should be granted with respect to the claims against
Defendant Reed and the City of Atlanta.3
Finally, it should be noted that the Plaintiff makes sweeping generalizations
about his evidence which are unsupported. For example, the Plaintiff lumps together
many different types of searches which may or may not be illegal depending upon the
circumstances. A search that is based upon probable cause or reasonable suspicion
3
The Defendants filed a Motion to Strike Unauthenticated Documents Used by
Plaintiff in Defense Against the Defendants’ Motion for Summary Judgment [Doc.
55] arguing that the Plaintiff improperly relied upon informal and unauthenticated
documents in his Statement of Additional Material Facts. (See Defs.’ Mot. to Strike
Unauthenticated Documents, at 1). The Defendants specifically move to strike
Exhibits 1-16 attached to the Plaintiff’s Statement of Additional Material Facts. (See
id.) The Plaintiff cites these exhibits solely to support his assertion that the City of
Atlanta had a policy or custom of performing strip searches. (See Pl.’s Statement of
Additional Material Facts in Opp’n to Defs’ Mot. for Summ. J., ¶¶ 31, 78-93).
Because the Court concludes the Plaintiff has not shown the City of Atlanta had a
custom or policy of performing strip searches, the Court will DENY as MOOT the
Defendants’ Motion to Strike Unauthenticated Documents Used by Plaintiff in
Defense Against the Defendants’ Motion for Summary Judgment [Doc. 55].
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may be legal where the same search is illegal without probable cause or reasonable
suspicion. A visual inspection inside the underwear of a suspect under arrest or in
detention may be legal if made by pulling the underwear away for the body and
shaking it. Under the same circumstances, it may be illegal to pull down the suspect’s
pants and underwear and expose his genitals in public. A strip search is not the same
as a body cavity search. The Plaintiff’s arguments fail to take these distinctions into
consideration. Lumping together a variety of citizen complaints about searches does
not in any way establish that the City of Atlanta had a policy or practice of performing
illegal strip searches in February 2010.
B.
Federal Claims Against the Officers
Defendants Pettis and Godwin (the “Defendant Officers”) claim they have
qualified immunity because they were acting within their discretion and did not
violate the Plaintiff’s constitutional rights. Qualified immunity shields government
officials executing discretionary responsibilities from civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of which
a reasonable person would have known. Courson v. McMillian, 939 F.2d 1479, 1487
(11th Cir. 1991), citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified
immunity is a question of law to be decided by the Court. The test for qualified
immunity is one of “objective-reasonableness” in evaluating the conduct of the
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government official claiming its protection. “[A]ll but the plainly incompetent or
those who knowingly violate the law” find protection in qualified immunity. Id.,
citing Malley v. Briggs, 475 U.S. 335, 341 (1986).
In Rich v. Dollar, 841 F.2d 1558 (11th Cir. 1988), the Eleventh Circuit adopted
a two part analysis for assessing the qualified immunity defense. First, the defendant
public official must prove that he acted within the scope of his discretionary authority
when the challenged conduct occurred. If the defendant satisfies this part, the burden
shifts to the plaintiff to show that the defendant public official's conduct violated
clearly established law. Id. at 1563-64. In general, the Eleventh Circuit allows a
broad and expansive scope of protection afforded by qualified immunity:
That qualified immunity protects government actors is the usual rule;
only in exceptional cases will government actors have no shield against
claims made against them in their individual capacities. . . Unless a
government agent's act is so obviously wrong, in the light of pre-existing
law, that only a plainly incompetent officer or one who was knowingly
violating the law would have done such a thing, the government actor
has immunity from suit. Because qualified immunity shields government
actors in all but exceptional cases, courts should think long and hard
before stripping defendants of immunity.
Lassiter v. Alabama A & M Univ., Bd. of Trustees, 28 F.3d 1146, 1149 (11th Cir.
1994) (en banc) (citations and footnotes omitted). In Lassiter, the Eleventh Circuit
expounded that for a law to be clearly established in the qualified immunity context,
“pre-existing law must dictate, that is, truly compel (not just suggest or allow or raise
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a question about), the conclusion for every like-situated, reasonable government agent
that what defendant is doing violates federal law in the circumstances.” Id. at 1150
(emphasis in original).
The parties agree that Officers Pettis and Godwin were acting within the scope
of their discretionary authority when the alleged strip search occurred. The Defendant
Officers claim that the Plaintiff has not shown his constitutional rights were violated.
Indeed, both Officer Pettis and Officer Godwin maintain that they were not at the
West End Mall area on the day of the search. (See Pettis Decl. ¶ 3; Godwin Decl. ¶ 3).
But the Plaintiff has provided contrary evidence. Clarence Brantley, who cut the
Plaintiff’s hair prior to the incident at issue, states that he witnessed Officers Godwin
and Mayes stop, detain, and search the Plaintiff on February 17, 2010. (Brantley Decl.
¶¶ 2-7). Likewise, Shontavious Martin, a friend of the Plaintiff who accompanied the
Plaintiff to the area on February 17, witnessed several officers strip search the Plaintiff
and later identified Officers Pettis, Godwin, and Mayes as officers who participated
in the search. (Martin Decl. ¶¶ 2-10). Additionally, Aquayetta Hill, the Plaintiff’s
girlfriend, witnessed Officers Godwin and Mayes search the Plaintiff. (Hill Decl. ¶¶
2-13). While the Plaintiff could not name the officers that searched him in his
deposition, he stated that he did not see the officers’ name tags at the time, and,
according to his declaration, he was able to later identify Officers Godwin, Mayes,
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and Pettis as participants in the search based on photographs shown to him after he
was deposed. (See Sampson Dep. at 108-11; Sampson Decl. ¶¶ 4-6).
The Plaintiff’s evidence is sufficient to create an issue of material fact sufficient
to survive summary judgment. While Officers Pettis and Godwin declare they were
not at the West End Mall on the date in question, the Plaintiff has provided affidavits
of three witnesses who contend they saw the officers search the Plaintiff on that day.
(See Pettis Decl. ¶¶ 1-4; Godwin Decl. ¶¶ 1-4; Brantley Dec. ¶¶ 2-7; Martin Decl. ¶¶
2-10; Hill Decl. ¶¶ 2-13). Further, the declaration of Defendant Mayes indicates that
the Red Dog Team comprised of Mayes, Pettis, Godwin, and Amarena answered a call
in the West End Area on February 17, 2010, at approximately 5:45 p.m. (Mayes Decl.
¶ 19). According to the Plaintiff’s evidence, Defendant Officers Pettis, Godwin, and
Mayes collectively grabbed the Plaintiff when he was crossing the street after leaving
the barber shop.4 (Sampson Decl. ¶¶ 3-4). They held the Plaintiff and performed a
4
The Defendants contend that because the Plaintiff admits that Defendant
Godwin remained a few feet away when the other Red Dog officers conducted the
strip search, the Plaintiff’s claims against Godwin must fail. However, “[t]he law of
this circuit is that ‘an officer who is present at the scene and who fails to take
reasonable steps to protect the victim of another officer’s use of excessive force, can
be held liable for his nonfeasance.’” Velazquez v. City of Hialeah, 484 F.3d 1340,
1341 (11th Cir. 2007) (quoting Skrtich v. Thornton, 280 F.3d 1295, 1302 (11th Cir.
2002)). Although the Plaintiff’s claim is stylized as “Unreasonable Search and
Seizure Under the United States’ Constitution,” there is no indication that the same
liability principles would not apply to his claim. (See Compl. ¶¶ 41-55).
Accordingly, the Court concludes that a reasonable jury could find that Defendant
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strip search which included touching the Plaintiff’s buttocks and genitals. (See id.)
Witnesses state that the officers pulled the Plaintiff’s pants down to his knees and
exposed his buttocks to the public. (See Brantley Decl. ¶ 5; Martin Decl. ¶¶ 8-9; Hill
Decl. ¶ 9). This evidence is sufficient for the Plaintiff to meet his burden and show
that a reasonable jury could conclude that the Defendants violated a constitutional
right that was clearly established at the time. See Holloman ex rel. Harland, 370 F.3d
1252, 1267 (11th Cir. 2004) (discussing the plaintiff’s burden at the summary
judgment stage with respect to qualified immunity).
In Richardson v. Quitman County, No. 4:11-cv-124, 2012 U.S. Dist. LEXIS
177776 (M.D. Ga. Dec. 17, 2012), the plaintiff argued that the strip search of her
person, in private, after she and her husband were pulled over based on reliable
information, was conducted outside the bounds of qualified immunity. The court
noted a lack of precedent with respect to strip searches following the lawful seizure
of the suspect’s vehicle, but noted that “any reasonable law enforcement officer would
understand that the constitutional requirements for such searches of a person who has
been arrested would apply at a minimum to a person who has not yet been arrested,”
Godwin’s presence at the scene of the strip search amounted to participation in the
strip search.
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and proceeded to determine whether the strip search of the plaintiff violated those
minimum standards. Id. at *39-40. The court stated that:
The Eleventh Circuit, in an en banc decision, stated that for a post-arrest
strip/body cavity search, the law enforcement officer must have ‘at least
a reasonable suspicion’ that the person to be searched possesses
contraband and that the contraband is reasonably suspected to be located
in the area to be searched. Evans v. Stephens, 407 F.3d 1272, 1279-80
(11th Cir. 2005) (en banc). After this decision by the Eleventh Circuit,
a reasonable officer would be on fair notice that in order to conduct the
type of strip/body cavity search conducted here, he needed reasonable
suspicion or else he would run afoul of the Fourth Amendment.
Id. at *40 (citing Evans v. Stephens, 407 F.3d 1272, 1279-80 (11th Cir. 2005)). The
court concluded that, although the defendant police officers had reliable information
that the plaintiff and her husband were driving a vehicle containing illegal drugs and
may have had drugs on their persons, “a reasonable officer could not conclude that he
had reasonable suspicion that [the female plaintiff] possessed drugs in the areas under
her clothing that were searched.” Id. at *40-41. The court bolstered its decision by
noting that the defendant officers had no information as to the female plaintiff’s
specific role in the alleged unlawful activity and had no information that she had “any
history of hiding drugs in her body cavities covered by her clothing.” Id. at *41.
Here, the alleged search of the Plaintiff was not based on even reasonable
suspicion. The Defendant Officers have provided no evidence suggesting they
suspected the Plaintiff possessed drugs or weapons. Further, the Defendant Officers
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have provided no evidence to indicate they suspected the Plaintiff was hiding drugs
in his private areas. Because the Defendant Officers have provided no evidence
justifying their search of the Plaintiff, and because a reasonable law enforcement
officer would be aware that he needed reasonable suspicion that a suspect held
contraband in his private areas before strip searching him, the Court concludes the
Plaintiff has demonstrated an issue of fact with respect to whether the Defendant
Officers violated a clearly established constitutional right when they strip searched the
Plaintiff. Accordingly, the Defendants’ motion for summary judgment should be
denied with respect to the Defendant Officers’ assertion of qualified immunity.
C.
State Law Claims Against Defendants Pettis and Godwin
1.
Official Immunity
The Defendant Officers contend they are protected by official immunity with
respect to the state law claims against them. Official immunity precludes hindsight
review of an official's judgment and allows public employees to retain independence
of action without fear of becoming personally liable. Gilbert v. Richardson, 264 Ga.
744, 750 (1994). A public officer may be personally liable for negligently performing
ministerial acts. However, under the doctrine of official immunity, an official is
immune from liability for discretionary acts performed within the scope of his official
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authority if the actions are done without wilfulness, malice, or corruption. Cameron
v. Lang, 274 Ga. 122, 123 (2001).
Actual malice, in the context of official immunity, is equated with “express
malice or malice in fact” and requires a showing of “deliberate intention to do wrong.”
Adams v. Hazelwood, 271 Ga. 414, 415 (1999); Merrow v. Hawkins, 266 Ga. 390,
391 (1996). Mere proof of ill will, anger, frustration, or irritation is insufficient to
establish actual malice. Adams, 271 Ga. at 415; Woodward v. Gray, 241 Ga. App.
847, 851 (2000). Rather, “a ‘deliberate intention to do wrong’ such as to constitute
the actual malice necessary to overcome official immunity must be the intent to cause
the harm suffered by the plaintiffs.” Murphy v. Bajjani, 282 Ga. 197, 203 (2007).
Here, the Plaintiff has created a genuine issue of material fact as to whether the
Defendant Officers are entitled to official immunity. The parties agree the Defendant
Officers were performing a discretionary function when they allegedly strip searched
the Plaintiff. The Plaintiff claims that the strip search of his person was humiliating.
(See Compl. ¶¶ 59, 62). As noted, three witnesses describe seeing the officers strip
search the Plaintiff. (See Brantley Decl. ¶ 5; Martin Decl. ¶¶ 8-9; Hill Decl. ¶ 9).
This search was conducted at approximately five in the afternoon in a public parking
lot near a mall. (See Sampson Dep. at 91). The police officers held the Plaintiff while
they spread his buttocks apart and looked and then moved his genitals and testicles
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and looked. (See id. at 99-102). As noted in the previous section, the Defendant
Officers have provided no justification for conducting the strip search of the Plaintiff.
Given this lack of justification, the Court concludes a reasonable jury could find that
the Defendant Officers performed the strip search of the Plaintiff in order to humiliate
him. Accordingly, the Plaintiff has created an issue of fact with respect to official
immunity and the Defendants’ motion for summary judgment should be denied on
those grounds.
2.
The Plaintiff’s Claim for False Imprisonment
The Plaintiff claims that the alleged strip search amounted to false
imprisonment. O.C.G.A. § 51-7-20 defines false imprisonment as “the unlawful
detention of the person of another, for any length of time, whereby such person is
deprived of his personal liberty.” Here, the Plaintiff has provided sufficient evidence
to create an issue of fact as to whether the Defendant Officers falsely imprisoned him.
According to the Plaintiff, he was physically restrained by several police officers
while they searched his private areas. (See Sampson Dep. at 98-103; Brantley Dec.
¶¶ 2-7; Martin Decl. ¶¶ 2-10; Hill Decl. ¶¶ 2-13). The Defendants have not provided
any contrary evidence aside from asserting they were not present at the time.
Accordingly, the Court concludes a reasonable jury could find that the Plaintiff was
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falsely imprisoned when the Defendant Officers strip searched him, and the
Defendants’ motion for summary judgment should be denied on those grounds.
3.
The Plaintiff’s Claim for Battery
The Plaintiff claims that the strip search of his person amounted to battery. “A
cause of action for battery will lie for any unlawful touching, that is, a touching of the
plaintiff’s person, even if minimal, which ... would be ... offensive to an ordinary
person not unduly sensitive as to his dignity.” Lawson v. Bloodsworth, 313 Ga. App.
616, 618 (2012) (citing Ellison v. Burger King Corp., 294 Ga. App. 814, 816-17
(2008)). The Plaintiff alleges the Defendant Officers restrained him while they
conducted a strip search which included touching the Plaintiff’s genitals and buttocks.
(See Sampson Dep. at 98-103; Brantley Dec. ¶¶ 2-7; Martin Decl. ¶¶ 2-10; Hill Decl.
¶¶ 2-13)). Again, because the Defendants only assert they were not present, the Court
concludes a reasonable jury could find that Defendant Pettis committed battery against
the Plaintiff when they strip searched him. However, the Plaintiff admits that
Defendant Godwin remained at the police vehicle and did not make any physical
contact with the Plaintiff. (See Sampson Decl. ¶¶ 5-6). Because the tort of battery
requires unlawful touching, and because Godwin did not touch the Plaintiff, the claim
for battery against Defendant Godwin must be dismissed.
Accordingly, the
Defendants’ motion for summary judgment with respect to the Plaintiff’s claim for
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battery should be denied with respect to Defendant Pettis but granted with respect to
Defendant Godwin.
4.
The Plaintiff’s Claim for Abuse in Being Arrested
The Plaintiff seeks recovery under the Georgia Constitution for “abuse in being
arrested.” The relevant section of the Georgia Constitution provides: “Excessive bail
shall not be required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted; nor shall any person be abused in being arrested, while under arrest, or in
prison.” GA. CONST. Art. 1, § 1, ¶ XVII. In Long v. Jones, 208 Ga. App. 798, 800
(1993), the court noted that “Art. I, Sec. I, Par. XVII of the Georgia Constitution,
which states that no person shall be abused while under arrest, provides an
independent state ground for this action [alleging abuse for being held in chains for
22 days in jail], and provides at least as much protection to pre-trial detainees under
the circumstances of this case as the Fourteenth Amendment due process clause.”
Although it is not clear if this provision has been applied to a seizure like the one in
this case, the Defendants only argue that the Plaintiff’s claim should fail because the
Plaintiff admitted he was not in fact arrested. (See Defs.’ Br. in Supp. of Defs.’ Mot.
for Summ. J., at 16-17).
However, the test for whether a person was arrested or seized is not subjective.
A person has been seized when, “in view of all the circumstances surrounding the
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incident, a reasonable person would have believed that he was not free to leave.”
Jones v. State, 291 Ga. 35, 37 (2012) (quoting United States v. Mendenhall, 446 U.S.
544, 554 (1980)). Likewise, “[a] person is seized by the police ... when the officer,
by means of physical force or show of authority, terminates or restrains his freedom
of movement, through means intentionally applied.”
Id. (quoting Brendlin v.
California, 551 U.S. 249, 254 (2007)). Here, the Plaintiff has provided evidence that
several APD officers restrained him and conducted a search of his private areas.
(See Sampson Dep. at 98-103; Brantley Dec. ¶¶ 2-7; Martin Decl. ¶¶ 2-10; Hill Decl.
¶¶ 2-13). Despite Sampson’s statement in his deposition that he was not actually
arrested, the Court holds that a jury could conclude that the APD officers intentionally
restrained the Plaintiff to an extent that a reasonable person would not have believed
he was free to leave. (See Sampson Dep. at 124). Accordingly, the Defendants’
motion for summary judgment should be denied with respect to the Plaintiff’s claim
for abuse in being arrested.
5.
The Plaintiff’s Claims for Punitive Damages and Bad Faith Fees
and Expenses
The Defendants argue in their motion for summary judgment that the Plaintiff’s
punitive damages claim and bad faith fees and expenses pursuant to O.C.G.A § 13-611 claim should be dismissed because the underlying state law claims lack merit. (See
Defs.’ Br. in Supp. of Defs.’ Mot. for Summ. J., at 16-17). However, the Court has
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concluded that the Plaintiff’s state law tort claims should survive summary judgment.
Accordingly, the Defendants’ motion for summary judgment should be denied with
respect to the punitive damages claim and the claim for bad faith fees and expenses.
IV. Conclusion
For the reasons set forth above, the Defendants Kasim Reed, Robert Godwin,
and Reginald Pettis’s Motion for Summary Judgment [Doc. 37] is GRANTED in
PART and DENIED in PART and the Defendants Kasim Reed, Robert Godwin, and
Reginald Pettis’s Motion to Strike Unauthenticated Documents Used by Plaintiff in
Defense Against Defendants’ Motion for Summary Judgment [Doc. 55] is DENIED
as MOOT.
SO ORDERED, this 28 day of March, 2013.
/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge
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