Venson v. Georgia Department of Public Safety et al

Filing 28

OPINION AND ORDER granting 18 Motion to Lift Stay and Dismiss. The Court DIRECTS the Clerk to close this case. Signed by Judge Michael L. Brown on this 6th day of March, 2025. (pdt) Modified on 3/7/2025 (pdt).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
Garcia Venson,
Plaintiff,
Case No. 1:12-cv-1797-MLB

v.
Georgia Department of Public
Safety, et al.,
Defendants.
________________________________/

OPINION & ORDER
This thirteen-year-old case comes before the Court on Defendant
Kimberly Davis’s Motions to Lift Stay and Dismiss for failure to state a
claim.

(Dkt. 18.)

Plaintiff Garcia Venson, an inmate, responded.

(Dkt. 27.)1 The Court lifts the stay and grants Davis’s motion.

1 The Court considers Plaintiff’s response.

“Under the ‘prison mailbox
rule,’ a pro se prisoner’s court filing is deemed filed on the date it is
delivered to prison authorities for mailing.” Daker v. Comm’r, Ga. Dep’t
of Corr., 820 F.3d 1278, 1286 (11th Cir. 2016). “Absent evidence to the
contrary, [courts] assume that the prisoner’s filing was delivered to
prison authorities the day he signed it.” Id. Here, while the Clerk filed
Plaintiff’s response days after the deadline, Plaintiff signed it on
December 27, 2024—the final day to respond. (Dkts. 26; 27 at 6.) And

I.

Background
On March 30, 2010, Georgia State Patrol Officer Davis pulled

Venson over in DeKalb County, Georgia.

(Dkt. 1 ¶¶ 8, 10.)

That

interaction led to a struggle between Officer Davis and Venson that
resulted in three legal proceedings—a 2010 criminal case in which the
State of Georgia charged Venson for his conduct in regard to Davis
(Dkt. 18-2 at 1); this 2012 civil case in which Venson sues Davis and the
Georgia State patrol, claiming Davis assaulted him (Dkt. 1); and a 2012
criminal case that replaced the 2010 criminal case and in which a jury
convicted Venson on eight counts, including two counts of aggravated
battery against Davis, aggravated assault against Davis, removal of a
weapon from public official involving Davis, felony obstruction of an
officer involving Davis, and three counts involving his interactions with

even if it was untimely, Defendants never objected. Gindt v. LifeHope
Labs, 2023 WL 6194079, at *2 (N.D. Ga. May 12, 2023) (allowing
untimely response in the light of plaintiff’s pro se status and defendant’s
failure to move to strike the response).
2

other officers on the same day as his interactions with Davis. (Dkt. 18-2
at 23–22.)2
The Georgia Court of Appeals’ decision affirming Venson’s
conviction for his conduct against Officer Davis (and the other officers)
contains a detailed statement of the facts at issue in that case.
(Dkt. 18-3.)

The Court—as it must at this stage—accepts Venson’s

well-pleaded factual allegations in this case as true even though they are
completely inconsistent with the facts underlying his conviction.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Venson pleads that, after
Davis pulled him over for an alleged traffic violation, she threatened his
life, shot him three times, and forced him to defend himself by fighting
with her. (Dkt. 1 ¶¶ 12–16.) More specifically, he alleges that, after he
had “completely given up” and asked Davis to handcuff him, she refused

The Court takes judicial notice of this indictment and other court
documents related to Venson’s convictions for the limited purpose of
establishing the judicial act and the status of his appeal. Garcia-Garcia
v. N.Y.C., 2013 WL 3832730, at *1 n.1 (S.D.N.Y. July 22, 2013) (taking
judicial notice of criminal disposition data and indictments to show
plaintiff was arrested and charged with specific crimes). Because nobody
contests the authenticity of the documents, the Court need not convert
Davis’s motion to dismiss into a motion for summary judgment. See
Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1278 (11th Cir. 1999)
(approving judicial notice of facts without fear of conversion).

2

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and threatened to shoot him in the back of the head. (Id. ¶¶ 12–13.)
Venson, attempting to “ease the tension,” stood up, “stepped” over a fence,
turned around, and placed his hands behind his back. (Id. ¶ 14.) He says
Davis approached him and—“for no justification whatsoever”—shot him
in the back. (Id. ¶ 15.) As Davis prepared to shoot Venson again, he
ducked, causing the bullet to graze his head. (Id.) Venson then “rais[ed]
his left arm” and hit the gun before Davis shot him in the chest. (Id.)
Venson grabbed the pistol and Davis’s hands “in a desperate attempt to
save his life after being shot three times without justification,” causing
Davis to fire all her remaining rounds. (Id.) Venson then fled. (Id. ¶ 16.)
Venson filed this case against Davis, the Georgia State Patrol, and
other state actors in 2012—while he was facing the 2010 charges but
before his indictment in the 2012 criminal case that led to his conviction.
(Dkts. 1; 18-2 at 13.) Venson asserts claims under 42 U.S.C. §§ 1983
and 1985. (Dkt. 1 ¶¶ 8, 19.) The Court previously dismissed all his
claims except those against Davis in her individual capacity. (Dkt. 17
at 4.) Citing the Younger3 abstention doctrine, the Court also stayed this

3 Younger v. Harris, 401 U.S. 37 (1971).

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case pending resolution of the criminal charges. (Id. at 8.) In 2020, the
Georgia Court of Appeals affirmed Venson’s conviction, and Davis now
moves to lift the stay and dismiss the final claim. (Dkts. 18-3; 18.)
II.

Discussion
The Court labors to understand the basis for Venson’s claims. In

one paragraph of his complaint and in response to Davis’s motion to
dismiss, Venson relies on violations of the Fifth, Sixth, Eighth,
Thirteenth, and Fourteenth Amendments. (Dkts. 1 ¶ 8; 27 at 2.) In
Count One of his complaint, however, he says he seeks relief under the
Fourth, Fifth, and Fourteenth Amendments. (Dkt. 1 ¶ 19.) The Court
previously identified Count One as setting forth the basis for his claims.
(Dkt. 17 at 1.) Venson never complained about that characterization.
The

Court

now

further

whittles

Venson’s

cornucopia

of

constitutional violations. Several elementary principles of constitutional
law guide the Court’s focus. For one, the Fifth Amendment Due Process
Clause “applies only to the federal government,” and Davis was a state
employee. Hooper v. City of Montgomery, 482 F. Supp. 2d 1330, 1335
(M.D. Ala. 2007) (citation omitted). The Sixth Amendment’s protections
center around governmental conduct “[i]n all criminal prosecutions,” yet

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Venson was not detained at the time he fought with Davis. See U.S.
Const. amend. VI. The Eighth Amendment, too, is out because it applies
“only after a citizen has been convicted of a crime,” and the police had not
yet arrested Venson.

Weiland v. Palm Beach Cnty. Sherriff’s Off.,

792 F.3d 1313, 1328 (11th Cir. 2015) (citation omitted). The complaint
also mentions the Thirteenth Amendment and the absence of probable
cause. (Dkt. 1 ¶ 10.) But Venson never plausibly alleges any such
violation. Finally, “under the Supreme Court’s current [excessive force]
framework, the Fourth Amendment covers arrestees, the Eighth
Amendment covers prisoners, and the Fourteenth Amendment covers
those who exist in-between as pretrial detainees.” Crocker v. Beatty,
995 F.3d 1232, 1246 (11th Cir. 2021).

Venson’s allegations involve

conduct before his arrest. So Venson’s only colorable claim lies in the
Fourth Amendment under an excessive force theory. To the extent the
Court misunderstands Venson’s theories, the fault lies with his former
attorney’s poor drafting.
A.

Pleading Concern

Before addressing the merits, the Court pauses to address a
pleading issue not raised by anyone.

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The Federal Rules of Civil

Procedure establish two axiomatic pleading rules. Rule 8 requires a
“short and plain statement of the grounds of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule 10 mandates
litigants to “state [their] claims . . . in numbered paragraphs, each limited
as far as practicable to a single set of circumstances.” Fed. R. Civ. P.
10(b).
These principles appear foreign to Venson’s complaint.4

The

Eleventh Circuit classifies complaints like these as “shotgun complaints.”
Weiland, 792 F.3d at 1320. Indeed, Venson’s complaint bears many
indicia of this disfavored practice. For one, it indiscriminately adopts
every preceding allegation.

See id. (identifying one class of shotgun

complaints as those “containing multiple counts where each count adopts
the allegations of all preceding counts, causing each successive count to
carry all that came before and the last count to be a combination of the
entire complaint”). The reincorporated allegations also consist mostly of

While the Court liberally construes Venson’s response to Davis’s
motions, it does not liberally construe the complaint since Venson’s
former counsel drafted it. Tannenbaum v. United States, 148 F.3d 1262,
1263 (11th Cir. 1998) (holding pro se pleadings to a “less stringent
standard than pleadings drafted by attorneys” (emphasis added)).
4

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vague and conclusory statements, appearing to relate to different
theories under any number of constitutional violations. See Chudasama
v. Mazda Motor Corp., 123 F.3d 1353, 1359 n.9 (11th Cir. 1997)
(discussing a pleading requiring “a reader of the complaint [to] speculate
as to which factual allegations pertain to which count”). And to make
matters worse, the complaint lumps those conclusory, reincorporated
allegations into a single § 1983 count that mentions a potpourri of
possible theories under numerous supposed constitutional provisions.
See Bickerstaff Clay Prods. Co. v. Harris Cnty., 89 F.3d 1481, 1484 n.4
(11th Cir. 1996) (“The complaint is a typical shotgun pleading, in that
some of the counts present more than one discrete claim for relief.”).
The Court strongly considered making Venson replead his
complaint without reaching this motion. But because Davis never asked
for dismissal on this ground, the Court assumes she somehow “received
adequate notice of the claims against [her] and the grounds upon which
[the] claim rests.” Weiland, 792 F.3d at 1323. The Court thus presses
forward.

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B.

Motion to Lift Stay

To lift the stay, the Court instructed the parties to file “a motion
and documentation establishing that the state court criminal proceedings
against plaintiff have concluded.” (Dkt. 17 at 8.) Davis did so in her
motion to dismiss. So the Court lifted the stay in May 2024. (Dkt. 19.)
Venson, for some reason, later agreed the Court should do that. (Dkt. 27
at 4.) To the extent Venson misunderstood the Court’s prior order, the
Court reiterates: the stay is lifted. See, e.g., Everett v. Martin, 2021 WL
2139418, at *1 (E.D. Ark. May 26, 2021) (lifting Younger stay upon
litigant’s telling the court that the judgment reached finality).
C.

Motion to Dismiss

Courts may dismiss a pleading for “failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a
motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim that is plausible on its face.’” Iqbal,
556 U.S. 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550

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U.S. at 556). In evaluating the sufficiency of the complaint, courts accept
all well-pled facts as true and construe them “in the light most favorable
to the plaintiff.” Devengoechea v. Bolivarian Republic of Venez., 889 F.3d
1213, 1218 n.6 (11th Cir. 2018) (citations omitted).
Davis says the Supreme Court’s decision in Heck v. Humphrey,
512 U.S. 477, 489 (1994), bars any claims Venson asserts against her.
(Dkt. 18-1 at 7.) Heck bars a state prisoner from suing an arresting
officer for damages under § 1983 when success in that civil suit “would
necessarily imply the invalidity of the [prisoner’s] conviction or sentence.”
Harrigan v. Metro Dade Police Dep’t Station #4, 977 F.3d 1185, 1192
(11th Cir. 2020). Most importantly here, Heck precludes claims that, “if
successful, would necessarily imply the invalidity of the conviction
because they would negate an element of the offense.” Hughes v. Lott,
350 F.3d 1157, 1160 n.2 (11th Cir. 2003) (emphasis added). To determine
whether such a negation would occur, the Court must look at both the
claims raised in the federal action and “the specific offenses for which the
[] claimant was convicted.” Id. “Factual allegations bar claims under
Heck in only narrow circumstances: where the allegation in the § 1983
claim is a specific one that both necessarily implies the earlier decision is

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invalid and is necessary to the success of the § 1983 suit itself.” Hall v.
Merola, 67 F.4th 1282, 1292 (11th Cir. 2023) (emphases added). Under
either route, the terms “necessary” or “necessarily” do a lot of work. See
Nelson v. Campbell, 541 U.S. 637, 647 (2004) (“[W]e were careful in Heck
to stress the importance of the term “necessarily.”). The inquiry into
whether success in a civil case necessarily implies invalidity of a prior
conviction “sounds in theoretical possibility.”

Harrigan, 977 F.3d

at 1193. “So long as ‘there would still exist a construction of the facts
that would allow the underlying [punishment] to stand,’ a § 1983 suit
may proceed.” Dixon v. Hodges, 887 F.3d 1235, 1238 (11th Cir. 2018).
Davis relies on Venson’s convictions for felony obstruction and
removing a weapon from a public official to argue Heck precludes his
claims against her.

(Dkt. 18-1 at 10.)

Georgia’s felony obstruction

provision—O.C.G.A. § 16-10-24(b)—makes it a crime to “knowingly and
willfully resist, obstruct, or oppose any law enforcement officer . . . [who
is acting] in the lawful discharge of his or her duties by . . . doing violence
to the person of such officer.” O.C.G.A. § 16-10-24(b). “[A]s an essential
element of a prosecution for this offense, the State must prove that the
officer was in the lawful discharge of his official duties at the time of the

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obstruction.” Bacon v. State, 820 S.E.2d 503, 505 (Ga. Ct. App. 2018).
Under this statute, “[a]n officer does not lawfully discharge h[er] duties
when [s]he uses unlawful or excessive force to effectuate an arrest.”
Cross v. Lacey, 2015 WL 5341091, at *3 (M.D. Ga. Sept. 14, 2015).
Georgia’s statute making it a crime to remove a weapon from a police
officer—O.C.G.A. § 16-10-33(b)—requires that the peace officer be
“lawfully acting within the course and scope of employment.” O.C.G.A.
§ 16-10-33(b)(1). So Venson’s convictions preclude him from pursuing
any claims against Davis that necessarily imply Davis was not acting
lawfully within the scope of her employment and did not use excessive
force at the time she shot him.
That is a problem for Venson. He claims he had given himself up
to be arrested by Davis, that he was docile, that she shot him three times
for no reason, and that he only took her gun “in a desperate attempt to
save his life.” (Dkt. 1 ¶¶ 13–15.) He says that, after doing this, he
immediately fled for his life, thus having no more involvement with
Davis. He thus necessarily alleges that Davis was acting wrongfully at
the time he disarmed her and fled. But, in convicting him of wrongfully
disarming Davis, the jury necessarily concluded Davis was acting within

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the course and scope of her employment at that time. A finding in this
case that Davis acted wrongfully in shooting him would necessarily imply
the invalidity of that conviction. Similarly, since Venson’s involvement
with Davis ended after he disarmed her and fled, the jury in the criminal
case must have concluded his actions prior to fleeing constituted felony
obstruction.

And that required them to find Davis was not using

unlawful or excessive force in effectuating Venson’s arrest. But to prevail
in this case, he would have to show just the opposite: that Davis violated
his constitutional rights by using excessive force during their altercation.
His allegations in this case—that Davis was the aggressor and that he
acted in self-defense—cannot coexist with his prior convictions—that
required a finding that Davis was acting within the scope of her
employment and not using excessive force.
This is not a case where the Court could theorize an alternative set
of facts to resolve the dispute between his current claims and his prior
convictions. The Court cannot, for example, hypothesize that perhaps
Davis initially mistreated Venson with excessive force (thus giving rise
to his civil claim) and then Venson obstructed Davis and took her gun
after he became docile (thus giving rise to his convictions). Venson’s

13

allegations do not permit this extrapolation. He alleges one continuous
event—starting with him having already given up, begging to be
arrested, and placing his hands behind his back. (Id. ¶ 13.) He says he
remained that way throughout their encounter, only fighting back and
taking Davis’s gun to save his own life. (Id. ¶ 15.) Likewise, he alleges
Davis used excessive force throughout the encounter, starting when she
shot him the first time and continuing until the moment he fled. (Id.
¶¶ 13–15.)

While the Heck analysis requires consideration of other

theoretical possibilities, it does not require the Court to consider
possibilities directly at odds with Venson’s allegations. He is the master
of his complaint and, in that way, controls the scope of the analysis. His
allegations set the outer bounds of any theoretical exercise the Court does
to reconcile his prior convictions and his current claims. Reconciliation
is not possible here as Venson’s allegations against Davis necessarily and
unavoidably imply the invalidity of his convictions. Heck thus bars his
claims against Davis.
D.

Withdrawal Notice

Unrelatedly, Venson asked for and received several extensions to
find counsel. (Dkts. 22, 23; 25, 26.) Yet he listed his supposedly former

14

counsel as “Attorney for Plaintiff” in his recent certificate of service.
(Dkt. 27.) And his former counsel never withdrew. Though the Court
takes Venson’s word on his pro se status, his former counsel must
withdraw under the Court’s Local Rules if he no longer represents
Venson. See LR 83.1(E), NDGa (describing the withdrawal process).
III. Conclusion
The Court GRANTS Davis’s Motion to Lift Stay and Dismiss.
(Dkt. 18.) The Court DIRECTS the Clerk to close this case.
SO ORDERED this 6th day of March, 2025.

(1

1

MICH"K E L L. B R O W N

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