Hunter v. Schoeppner
Filing
44
ORDER granting 22 Motion for Summary Judgment. The Clerk is directed to enter judgment in favor of Defendant on all claims. Signed by Judge William S. Duffey, Jr, on 8/2/13. (jdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
RAY HUNTER,
Plaintiff,
v.
1:12-cv-1440-WSD
D.G. SCHOEPPNER,
Defendant.
OPINION AND ORDER
This matter is before the Court on Defendant’s Motion for Summary
Judgment [22].
I.
BACKGROUND
A.
Procedural History
On April 25, 2012, Plaintiff Ray Hunter (“Plaintiff”) filed this civil rights
action against Defendant D.G. Schoeppner (“Defendant”), a detective with the
DeKalb County Police Department. This action arises from Plaintiff’s arrest in
September 2008 for bank robbery. In his Complaint [1], Plaintiff asserts causes of
action under 42 U.S.C. § 1983 for malicious prosecution in violation of the Fourth
Amendment (Count I) and under state law for false arrest (Count II) and malicious
prosecution (Count III).
On November 20, 2012, after discovery was completed, Defendant filed his
Motion for Summary Judgment on the grounds that he had probable cause to arrest
Plaintiff and that he has qualified immunity from this action based on the arrest.
Plaintiff responds that Defendant lacked probable cause for the arrest and that
Defendant is not entitled to qualified immunity. Plaintiff did not oppose, or
otherwise respond to, Defendant’s request for summary judgment on Plaintiff’s
state law claims.
B.
Facts1
On November 17, 2006, the Emory Federal Credit Union (“Emory FCU”) in
DeKalb County was robbed. (Def.’s SUMF [22-2] ¶ 2; Pl.’s SAMF [38] ¶ 15.)
The suspect, described as a 5’11” black male between the ages of 40 and 50 and
weighing 200 pounds, gave a teller a note, written on a Bank of America check.
(Def.’s SUMF [22-2] ¶ 2; Pl.’s SAMF [38] ¶ 15.) The note stated that the suspect
had explosives, and it demanded $35,000. (Def.’s SUMF [22-2] ¶ 2; Pl.’s SAMF
[38] ¶ 15.) The suspect showed the teller that he had a “device” with a red light.
(Def.’s SUMF [22-2] ¶ 2; Pl.’s SAMF [38] ¶ 16.) The teller gave the suspect
1
These facts are take from Defendant’s Statement of Undisputed Material Facts
[22-2] (“Defendant’s SUMF”) and Plaintiff’s Statement of Additional Material
Facts [38] (“Plaintiff’s SAMF”), along with their accompanying exhibits,
submitted in accordance with Local Civil Rule 56.1. Unless otherwise indicated,
the facts are undisputed.
2
$14,000. (Def.’s SUMF [22-2] ¶ 2; Pl.’s SAMF [38] ¶ 17.) The suspect took back
the note and left. (Def.’s SUMF [22-2] ¶ 2.)
Defendant, a detective in the Major Felony Unit of the DeKalb County
Police Department, investigated the Emory FCU robbery. (See Def.’s SUMF [222] ¶¶ 1–2.) On January 3, 2007, Defendant attended an FBI-sponsored meeting of
Atlanta area police officials to discuss bank robberies throughout the region. (Pl.’s
SAMF [38] ¶ 25.) At the meeting, Defendant learned that City of Atlanta police
were investigating two robberies that were similar to the Emory FCU robbery. (Id.
¶ 26.) On December 14, 2006, a suspect described as a 6’0”, 45-year-old black
male weighing 200 pounds, had robbed a SunTrust Bank in Atlanta by showing a
teller a “device” with flashing lights and giving the teller a note, written on a Bank
of America check, warning of explosives and demanding $35,000. (Id. ¶¶ 64–66.)
The suspect escaped with cash and the note. (Id. ¶ 67.) On December 22, 2006, a
male suspect attempted to rob a Wachovia Bank in Atlanta with a note, written on
a Bank of America check, warning of explosives and demanding $35,000. (Id.
¶¶ 68–69.) The suspect was not given any bank funds, and he walked out of the
bank, leaving the note behind. (Id. ¶ 70.) The check on which the note was written
was recovered by Atlanta police. (Id. ¶ 72.) It belonged to Plaintiff. (Id.)
On January 5, 2007, two days after the FBI-sponsored meeting, an attempted
3
bank robbery, similar to the Emory FCU and Atlanta robberies, occurred at a
BB&T branch in DeKalb County. A suspect, described as a 5’11” black male in
his late thirties and weighing 200 pounds, handed a teller a note, written on a Bank
of America check, stating that the suspect had explosives and demanding $35,000.
(Def.’s SUMF [22-2] ¶ 3; Pl.’s SAMF [38] ¶ 19.) The suspect showed the teller a
white “device,” or “clicker,” with a blue button. (Def.’s SUMF [22-2] ¶ 3; Pl.’s
SAMF [38] ¶ 20.) The teller called 911, and the suspect fled, leaving the check
behind. (Def.’s SUMF [22-2] ¶ 3.) Although the accountholder’s name on the
check was obscured, the name was visible and read “DBA Mattress & Furniture
City Ray Hunter Sole Prop.” (Id. ¶ 5.)
After the BB&T robbery in DeKalb, Defendant again spoke with the Atlanta
detective investigating the Atlanta bank robberies. (See id. ¶ 6.) Defendant
learned that the check recovered from the DeKalb BB&T robbery was for the same
account as the check recovered from the Atlanta Wachovia robbery. (Id.) The
account belonged to Plaintiff, and the company named on the check had gone out
of business. (Id.) The Atlanta detective had shown to witnesses of the Atlanta
robberies a photographic lineup which included Plaintiff’s photo. (Id.) The
witnesses who were shown the lineup were not able to identify the robber. (Id.)
The detective sent Defendant a copy of Plaintiff’s photo. (Id.)
4
Defendant personally compared the photo of Plaintiff he received to the
surveillance videos of the DeKalb robberies. (Id. ¶ 7.) Although the quality of the
surveillance videos was not sufficient to enable a positive identification, Defendant
concluded that the suspect in both videos appeared to be the same person, and that
the suspect resembled Plaintiff. (Id. ¶¶ 7–8.)
On January 9, 2007, Defendant showed a photographic lineup, including
Plaintiff’s photo, (the “Hunter lineup”) to two witnesses of the BB&T robbery.
(Id. ¶ 13; Pl.’s SAMF Ex. B pt. 6 [38-7] at 2, 7.2) One witness was unable to make
an identification. (Def.’s SUMF [22-2] ¶ 13; Pl.’s SAMF Ex. B pt. 6 [38-7] at 7.)
The other witness made a “tentative” identification of Plaintiff.3 (Def.’s SUMF
[22-2] ¶ 13; Pl.’s SAMF Ex. B pt. 6 [38-7] at 2.)
On January 10, 2007, Defendant showed the Hunter lineup to the teller-
2
Pincites are to ECF page numbers.
3
At the time of these interviews, the DeKalb Police Department had a policy with
respect to lineups that allowed a witness to make a “positive” identification, a
“tentative” identification, or no identification. (Def.’s SUMF [22-2] ¶ 11.)
Witnesses were not given an explanation of what a “tentative” identification
required. (Pl.’s SAMF [38] ¶¶ 42, 44.) Defendant testified that he understood a
“tentative” identification to mean that the witness is anywhere from “1 percent to
99 percent” confident that the identified photo is of the suspect. (Id. ¶ 43.)
Defendant understood that the DeKalb Police Department’s policy was that a
“tentative” identification alone was not sufficient to support an arrest. (Def.’s
SUMF [22-2] ¶ 12; Pl.’s SAMF [38] ¶ 41.)
5
victim of the BB&T robbery, and to a witness to the Emory FCU robbery. (Def.’s
SUMF [22-2] ¶¶ 10, 13; Pl.’s SAMF [38] ¶¶ 39, 52.) The BB&T victim
“tentatively” identified a photograph of a person other than Plaintiff. (Def.’s
SUMF [22-2] ¶ 13; Pl.’s SAMF [38] ¶ 52.) The Emory FCU witness “tentatively”
identified Plaintiff. (Def.’s SUMF [22-2] ¶ 10; Pl.’s SAMF [38] ¶ 46.)
Based on the similarity of the Emory FCU and BB&T robberies and his
comparison of the surveillance videos from both banks, Defendant believed that
the same suspect committed both robberies. (Def.’s SUMF Tab 12 [23] at 49.)
Based on the fact that Plaintiff’s check was used for the note in the BB&T robbery,
that Defendant personally compared Plaintiff’s photo to the surveillance videos
and concluded Plaintiff resembled the robber in the surveillance videos, and that
two witnesses gave “tentative” identifications of Plaintiff as the bank robber they
observed, Defendant believed he had probable cause to arrest Plaintiff for the
robberies. (Id. at 49–50; Pl.’s SAMF [38] ¶ 54.) On January 10, 2007, Defendant
applied for, and a judge of the DeKalb County Magistrate Court issued, arrest
warrants for Plaintiff. (Def.’s SUMF [22-2] ¶ 14; Def.’s SUMF Tab 12 [23] at 49–
50; Pl.’s SAMF [38] ¶ 53; Pl.’s SAMF Ex. B pt. 4 [38-5] at 21; Pl.’s SAMF Ex. B
pt. 6 [38-7] at 10.) The warrants were not immediately executed. (See Pl.’s SAMF
[38] ¶ 80.)
6
On March 10, 2007, Defendant learned that, on March 9, 2007, Atlanta
police had arrested Charles Hamlett (“Hamlett”) for the Atlanta bank robberies.
(Def.’s SUMF [22-2] ¶ 15; Pl.’s SAMF [38] ¶ 78.) Atlanta police were led to
Hamlett after the surveillance video of one of the Atlanta robberies was shown on
local television, and a viewer called police to identify Hamlett as the suspect.
(Pl.’s SAMF [38] ¶¶ 74–78.) Atlanta police searched Hamlett’s car and found a
check stub matching the check that had been used as the note in the Atlanta
Wachovia robbery. (Id. ¶ 79.) During questioning, Hamlett did not confess to any
robberies, but he stated that he knew, and had worked for, Plaintiff. (Id. ¶ 86; id.
Ex. C [38-8] at 5.)
Defendant obtained Hamlett’s photo, compared it the surveillance videos of
the DeKalb robberies, and concluded that Hamlett’s features were similar enough
to the robber’s that Hamlett could not be eliminated as a suspect. (Def.’s SUMF
[22-2] ¶ 16.) Defendant created a photographic lineup that included Hamlett’s
photo (the “Hamlett lineup”). (Id. ¶ 17; Pl.’s SAMF [38] ¶ 104.) On March 28,
2007, Defendant met, for the first time, with the teller-victim of the Emory FCU
robbery. (Def.’s SUMF [22-2] ¶ 17; Pl.’s SAMF [38] ¶ 105.) She had not
previously seen any lineup that had been developed for use in the robbery
investigations. (Def.’s SUMF [22-2] ¶ 17; Pl.’s SAMF [38] ¶ 105.) He first
7
showed the teller the Hamlett lineup, and she “tentatively” identified a filler photo.
(Def.’s SUMF [22-2] ¶ 17; Pl.’s SAMF [38] ¶ 106.) He then showed the teller the
Hunter lineup, and she “positively” identified Plaintiff as the person who robbed
her. (Def.’s SUMF [22-2] ¶ 17; Pl.’s SAMF [38] ¶ 107.)
On March 30, 2007, Defendant showed the Hamlett lineup to three witnesses
who had viewed the Hunter lineup in January: the Emory FCU witness who had
“tentatively” identified Plaintiff, the BB&T teller-victim who had identified a filler
photo, and a BB&T witness who had not identified anyone. (Def.’s SUMF [22-2]
¶ 17; Pl.’s SAMF [38] ¶¶ 109, 111–112.)4 The Emory FCU witness “tentatively”
identified Hamlett from the Hamlett lineup. (Def.’s SUMF [22-2] ¶ 17; Pl.’s
SAMF [38] ¶ 109.) Neither BB&T witness identified Hamlett as the person who
committed the robbery they witnessed.5 (Def.’s SUMF [22-2] ¶ 17; Pl.’s SAMF
[38] ¶¶ 111–112.)
After showing the lineups to these witnesses and receiving a positive
identification from the teller-victim of the Emory FCU robbery, Defendant
4
Defendant did not show the Hunter lineup to the BB&T witness who had
previously “tentatively” identified Plaintiff from the Hunter lineup. (Pl.’s SAMF
[38] ¶ 110.)
5
There is nothing in the record showing that any of these witnesses retracted their
previous “tentative” identifications from the Hunter lineup. In the Hamlett lineup,
they “tentatively” identified persons other than Hamlett.
8
consulted with a sergeant in his department to discuss their case against Plaintiff.
(Def.’s SUMF [22-2] ¶ 19.) Defendant and the sergeant agreed that the evidence
supporting Plaintiff’s guilt was stronger than when they obtained the arrest
warrants for Plaintiff in January 2007, because there now was a positive
identification of Plaintiff and two “tentative” identifications of Plaintiff. (Id.
¶¶ 18–19.)6 Defendant and the sergeant thus decided the January 2007 arrest
warrants would be executed because the evidence to support them was now more
compelling.
On September 15, 2008, Plaintiff was arrested and charged with the Emory
FCU and BB&T robberies. (Compl. [1] ¶ 66; Answer [3] at 4.)7
6
In his response to Defendant’s SUMF, Plaintiff purports to “deny” the facts
asserted in paragraphs 18 and 19 of the SUMF. (See Pl.’s Resp. Def.’s SUMF [37]
¶¶ 18–19.) Plaintiff, however, does not cite any evidence showing that the
assertions—regarding Defendant’s beliefs as to the strength of the evidence against
Plaintiff—are not true. Plaintiff instead argues why the evidence was not sufficient
to support probable cause for an arrest. The Court does not consider Plaintiff’s
legal arguments in the context of evaluating what facts are established in the
record, and the Court accepts the factual assertions in paragraphs 18 and 19 of the
SUMF as true. See LR 56.1(B)(2).
7
In April 2010, the charges against Plaintiff were dismissed. (Compl. [81] ¶ 81;
Answer [3] at 4.) The decision to dismiss the charges was made by the prosecuting
authorities. (Compl. [81] ¶ 81; Answer [3] at 4.)
9
II.
DISCUSSION
A.
Legal Standard
A court “shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). Parties “asserting that a fact cannot be or is
genuinely disputed must support that assertion by . . . citing to particular parts of
materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including those made for
purposes of the motion only), admissions, interrogatory answers, or other
materials.” Fed. R. Civ. P. 56(c)(1).
The party seeking summary judgment bears the burden of demonstrating the
absence of a genuine dispute as to any material fact. Herzog v. Castle Rock
Entm’t, 193 F.3d 1241, 1246 (11th Cir. 1999). Once the moving party has met this
burden, the non-movant must demonstrate that summary judgment is inappropriate
by designating specific facts showing a genuine issue for trial. Graham v. State
Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999). Non-moving parties
“need not present evidence in a form necessary for admission at trial; however,
[they] may not merely rest on [their] pleadings.” Id.
The Court must view all evidence in the light most favorable to the party
10
opposing the motion and must draw all inferences in favor of the non-movant, but
only “to the extent supportable by the record.” Garczynski v. Bradshaw, 573 F.3d
1158, 1165 (11th Cir. 2009) (quoting Scott v. Harris, 550 U.S. 372, 381 n.8
(2007)). “[C]redibility determinations, the weighing of evidence, and the drawing
of inferences from the facts are the function of the jury . . . .” Graham, 193 F.3d at
1282. “If the record presents factual issues, the court must not decide them; it must
deny the motion and proceed to trial.” Herzog, 193 F.3d at 1246. But, “[w]here
the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party,” summary judgment for the moving party is proper. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
B.
Analysis
Under 42 U.S.C. § 1983,
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State . . . subjects, or causes to be subjected,
any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding
for redress.
42 U.S.C. § 1983 (2006). Section 1983 is not a source of substantive rights but
rather provides a method for vindicating federal rights conferred by the
Constitution and federal statutes. Baker v. McCollan, 443 U.S. 137, 144 n.3
11
(1979). To prevail in an action under § 1983, a plaintiff must prove two elements:
(1) that an act or omission deprived the plaintiff of a right, privilege, or immunity
secured by the Constitution or laws of the United States, and (2) that the act or
omission was done by a person acting under color of law. Marshall Cnty. Bd. of
Educ. v. Marshall Cnty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993); Harvey
v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992).
Plaintiff here alleges that Defendant, acting under color of law in his
capacity as a police officer, had Plaintiff arrested in violation of the Fourth
Amendment. Defendant, who does not dispute that he acted under color of law,
argues that his arrest of Plaintiff did not violate the Fourth Amendment because he
had probable cause to arrest.
The Fourth Amendment, as it applies to the states and their localities by
virtue of the Fourteenth Amendment, protects citizens “against unreasonable
searches and seizures” by police officers. Brown v. City of Huntsville, 608 F.3d
724, 734 n.15 (11th Cir. 2010); see also U.S. Const. amend. IV. An arrest is a
“seizure” under the Fourth Amendment. Case v. Eslinger, 555 F.3d 1317, 1326
(11th Cir. 2009) (quoting Skop v. City of Atlanta, 485 F.3d 1130, 1137 (11th
Cir.2007)). “The ‘reasonableness’ of a seizure or arrest under the Fourth
Amendment turns on the presence or absence of probable cause.” Id. (citing Skop,
12
485 F.3d at 1137). “A warrantless arrest without probable cause violates the
Constitution and provides a basis for a section 1983 claim, but the existence of
probable cause at the time of arrest constitutes an absolute bar to a section 1983
action for false arrest.” Id. at 1326–27 (alterations, omissions, and internal
quotation marks omitted) (quoting Kingsland v. City of Miami, 382 F.3d 1220,
1226 (11th Cir. 2004)).
“Probable cause to arrest exists when law enforcement officials have facts
and circumstances within their knowledge sufficient to warrant a reasonable belief
that the suspect had committed or was committing a crime.” Id. at 1327 (quoting
United States v. Gonzalez, 969 F.2d 999, 1002 (11th Cir.1992)). The record here
establishes that Defendant had probable cause to arrest Plaintiff. The facts and
circumstances within Defendant’s knowledge sufficiently warranted a reasonable
belief that Plaintiff had committed one or more bank robberies.8 The evidence is
convincing and undisputed. Plaintiff’s check was used for the note in at least one
of the two bank robberies (Def.’s SUMF [22-2] ¶ 5); Defendant personally
analyzed the surveillance videos and compared them to Plaintiff’s photograph to
conclude that the robber in the videos resembled Plaintiff (id. ¶ 7); two
8
The Court notes that a neutral and detached Magistrate Judge on January 10,
2007, determined there was probable cause to arrest Plaintiff for the DeKalb
County bank robberies.
13
eyewitnesses “tentatively” identified Plaintiff as the person who robbed the bank at
which they were present (id. ¶¶ 10, 13); and a teller to whom a robbery note was
presented and who had a face-to-face encounter with the person who robbed her
bank, “positively” identified Plaintiff as the person who robbed her bank branch
(id. ¶ 17; Pl.’s Ex. B pt. 4 [38-5] at 4).9 The facts and circumstances indisputably
support that Defendant believed that Plaintiff had committed the bank robberies,
that this belief was more than reasonable, and that Defendant had probable cause to
arrest Plaintiff. See, e.g., United States v. Dumonde, 190 F. App’x 788, 790 (11th
Cir. 2006) (per curiam) (finding probable cause for arrest where phone calls
originated from suspect’s home and eyewitness identified suspect from a
photographic lineup).
9
The Court notes that Defendant obtained warrants for Plaintiff before Plaintiff
was arrested. “[A] warrant is the clearest indication that the officers acted in an
objectively reasonable manner” and thus generally confers a “shield of immunity”
on the arresting officers, unless “it is obvious that no reasonably competent officer
would have concluded that a warrant should issue.” Messerschmidt v. Millender,
132 S. Ct. 1235, 1245 (2012) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986))
(citing United States v. Leon, 468 U.S. 897, 922–23 (1984)). The threshold for
showing “unreasonableness” in the face of a warrant “is a high one.” Id. Because
Plaintiff’s arrest, pursuant to the warrants, occurred after Defendant conducted
further investigation, which Plaintiff argues undermined the strength of
Defendant’s case against Plaintiff, the Court considers the evidence under the more
stringent warrantless arrest standard discussed above. See Kingsland, 382 F.3d
1220, 1229 (holding that a police officer may not ignore evidence available to him
before making an arrest).
14
Plaintiff argues, notwithstanding the facts supporting the arrest of Plaintiff,
that Defendant was aware, or should have been aware, of evidence establishing
that Hamlett likely committed the DeKalb robberies and that this other information
precluded the existence of probable cause. Plaintiff argues that the similarity of
the DeKalb and Atlanta robberies support that the robberies were committed by the
same person, that this information was available to Defendant before Plaintiff’s
arrest, that Hamlett was in possession of a stub for Plaintiff’s check that matched a
check used as a note in one of the Atlanta robberies, and that a witness positively
identified Hamlett as the suspect in surveillance videos of the Atlanta robberies.
The Court finds that this evidence connecting Hamlett to the Atlanta
robberies is not sufficient to show that Defendant lacked probable cause to arrest
Plaintiff for the DeKalb robberies. The evidence collected by the Atlanta police
did not directly connect Hamlett to the DeKalb robberies. The check stub found in
Hamlett’s possession matched only a check used in an Atlanta robbery, and the
witness who identified Hamlett had seen the surveillance video of only one of the
Atlanta robberies. Plaintiff’s argument ignores that the evidence could support that
two or more perpetrators, working in concert, were responsible for the various
bank robberies, a possibility supported by Defendant’s investigation after
Hamlett’s arrest.
15
Defendant did not ignore the evidence of Hamlett’s involvement in the
Atlanta robberies. Defendant obtained Hamlett’s booking photo and created a
photographic lineup with it. He then showed the lineup to four witnesses from the
DeKalb robberies, including the teller-victim of the Emory FCU robbery. Only
one of these witnesses “tentatively” identified Hamlett. The Emory FCU tellervictim, the person who confronted directly the person who robbed her bank,
positively identified Plaintiff as the man who had robbed her, and did so after
seeing lineups in which Hamlett’s and Plaintiff’s photos both were presented.10
Defendant took the additional step of consulting with another officer, both of
whom agreed, based on the positive identification by the teller-victim, that the
evidence was strong and convincingly supported there was probable cause to arrest
Plaintiff, and that on less developed evidence a Magistrate Judge previously had
found probable cause to arrest Plaintiff. The Court concludes on the facts and
circumstances known to Defendant, that Defendant had a reasonable belief that
Plaintiff had committed a bank robbery, and that Defendant thus is entitled to
10
Plaintiff argues that the teller-victim’s “positive” identification is not trustworthy
because she also “tentatively” identified a filler photograph from the Hamlett
lineup. Plaintiff’s argument ignores the order in which the teller made her
identifications. She was first shown the Hamlett lineup and made her “tentative”
identification. She then was shown the Hunter lineup and then made a “positive”
identification of Plaintiff as the man who had robbed her.
16
summary judgment on Plaintiff’s § 1983 claim.11
III.
CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Defendant’s Motion for Summary
Judgment [22] is GRANTED. The Clerk is DIRECTED to enter judgment in
favor of Defendant on all claims.
SO ORDERED this 2nd day of August, 2013.
11
Plaintiff did not oppose, or otherwise respond to, Defendant’s motion for
summary judgment on Plaintiff’s state law claims for false arrest and malicious
prosecution. The Court concludes that Plaintiff has abandoned his state law claims
and that Defendant is entitled to summary judgment on the claims. See St.
Andrews Presbyterian Coll. v. S. Ass’n of Colls. & Sch., 679 F. Supp. 2d 1320,
1334–35 (N.D. Ga. 2009) (citing Bute v. Schuller Int’l, Inc., 998 F. Supp. 1473,
1477 (N.D. Ga. 1998); Welch v. Delta Air Lines, Inc., 978 F. Supp. 1133, 1137
(N.D.Ga.1997)) (“Failure to respond to an opposing party’s arguments regarding a
claim constitutes abandonment of that claim, and warrants dismissal of the
abandoned claim.”); see also LR 7.1(B), NDGa (“Failure to file a response shall
indicate that there is no opposition to the motion.”). The Court notes that, because
Plaintiff’s state law claims turn on the existence of probable cause for Plaintiff’s
arrest, see, e.g.. Franklin v. Consol. Gov’t of Columbus, Ga., 512 S.E.2d 352, 355–
56 (Ga. Ct. App. 1999), Defendant is entitled to summary judgment on the claims
for the same reasons that he is entitled to summary judgment on the § 1983 claim.
17
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