Gebru v. City of Atlanta et al
Filing
32
ORDER denying as moot Defendant's first 14 Motion to Dismiss. Defendants' 24 Motion to Dismiss is DENIED in part and GRANTED in part. The following claims remain: Fourth Amendment unreasonable search and seizure claim against Defen dants City of Atlanta, Kellner, and Matteson; State-Law false imprisonment claim against Defendants Kellner and Matteson; State-Law false/malicious arrest claim against Defendants Kellner and Matteson; State-Law battery claim against Defendant Matteson; State-Law sexual battery claim against Defendant Matteson; and State constitution arrest abuse claim against Defendant Matteson. Signed by Judge Richard W. Story on 7/2/2014. (cem)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ABERA GEBRU,
Plaintiff,
v.
CITY OF ATLANTA,
DAVID MATTESON,
individually,
WILLIAM KELLNER,
individually, and
ADAM WRIGHT, in his official
capacity,
Defendants.
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CIVIL ACTION NO.
1:13-CV-03376-RWS
ORDER
This case is before the Court on Defendants’ Motion to Dismiss [24]1.
After reviewing the record, the Court enters the following Order.
Background2
1
The Court will refer to “Defendants’ Motion to Dismiss,” but Defendants’
Motion only addresses claims against Defendants City of Atlanta, Kellner, and
Wright. The Court therefore considers each claim insofar as it involves those
Defendants. All claims against Defendant Matteson are still pending.
2
As this case is before the Court on a motion to dismiss, the Court accepts as
true all well-pleaded facts in the First Amended Complaint [23]. Cooper v. Pate, 378
U.S. 546 (1964).
AO 72A
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On the evening of October 14, 2011, Plaintiff stepped outside of the
Black Lion Café at 253 Auburn Avenue, Atlanta, Georgia (the “Cafe”) to “warn
away a woman who was drinking on the sidewalk and harassing customers.”
([23] at 4.) Plaintiff continued walking east on Auburn Avenue to assist
customers in finding safe parking for the Café. Around 12:15 A.M., Defendants
Kellner and Matteson, officers with the Atlanta Police Department (“APD”),
approached the intersection immediately east of the Café in an unmarked
vehicle. Kellner and Matteson observed Plaintiff assisting customers. ([23] at 45.)
The officers stopped in the middle of Auburn Avenue and exited the
vehicle. Defendant Matteson then grabbed Plaintiff’s body and “[forced
Plaintiff] to place his hands on the police vehicle.” ([23] at 5.) While forcing
Plaintiff onto the vehicle, Defendant Matteson yelled obscenities at Plaintiff.
Defendant Matteson then “manually search[ed] the inside of [Plaintiff’s]
undergarments with gloved hands, [and] manipulat[ed]” Plaintiff’s genitals.
Then Defendant Matteson searched Plaintiff’s pockets and used a flashlight to
look inside Plaintiff’s underwear. ([23] at 5-6.) No illegal contraband was
found, but Plaintiff was placed in handcuffs by Defendant Matteson. After
2
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Plaintiff was handcuffed, Defendant Matteson found a broken beer bottle on the
ground in a heavily littered area and suggested it could be Plaintiff’s. (Id.)
Defendant Kellner observed this process and at no time intervened or
interfered with the search conducted by Defendant Matteson. Defendant Kellner
was listed as the “arresting officer” in Plaintiff’s case and he cited Plaintiff for
drinking in public in violation of Atlanta Municipal Code § 10-8. ([23] at 7.)
However, Plaintiff had not consumed any alcohol and the bottle found did not
belong to him. ([23] at 7-8.) Defendants Kellner and Matteson, despite being
asked by Plaintiff, did not administer a breath analysis test or a blood exam and
did not interview any of the witnesses who were with Plaintiff while Plaintiff
was detained and searched. ([23] at 9.)
Plaintiff requested that a supervising officer be brought to the scene and
Defendant Wright arrived shortly thereafter. ([23] at 10.) Defendant Wright did
not interview any witnesses or investigate Plaintiff’s complaints, but instructed
the other officers to take Plaintiff to jail. (Id.) Plaintiff was detained overnight
in the City of Atlanta Pretrial Detention Center. ([23] at 12.) Three days later,
on October 17, 2011, Plaintiff’s request for an investigation into the conduct of
Defendants Matteson and Kellner was granted by the Atlanta Citizen Review
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Board (“ACRB”). ([23] at 15.) The ADP Office of Professional Standards
(“OPS”) also opened its own investigation. ([23] at 16.)
During the course of the ACRB and OPS inquiries, Defendants Matteson
and Kellner provided conflicting statements regarding what they witnessed on
the evening of Plaintiff’s arrest. (See [23] 16-21.) After providing statements to
the contrary, Defendant Matteson finally admitted that he did not see Plaintiff
drinking an alcoholic beverage and was terminated by the APD “for violating
APD Standard Operating Procedure 4.1.03 ‘Truthfulness.’” ([23] at 17.)
Defendant Kellner stated that he could not remember what he saw, despite
previously claiming he saw Plaintiff holding an alcoholic beverage. Two weeks
later, Defendant Kellner stated that he observed Plaintiff drinking. However,
this final statement indicated deception during Kellner’s Voice Stress Analysis
interview. ([23] at 17, 18, 21-22.) Defendant Kellner was subsequently
disciplined after OPS found that he did not have probable cause to arrest
Plaintiff. ([23] at 22-23.)
Plaintiff was brought before the City of Atlanta Municipal Court on
February 7, 2012, but the case against Plaintiff was dismissed because
Defendant Kellner was not present to testify. ([23] at 14.) On October 10, 2013,
4
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Plaintiff filed suit against Defendants. Plaintiff filed his Amended Complaint on
February 28, 2014, and Defendants filed the present Motion to Dismiss on
March 6, 2014. As amended, Plaintiff’s Complaint seeks damages related to:
unreasonable search and seizure (Count A); false imprisonment and false arrest
under Georgia law against Defendants Kellner, Matteson, and Wright (Count
B); battery and sexual battery under Georgia law against Defendant Matteson
(Counts C and D); and abuse in being arrested by Defendants Kellner and
Matteson (Count E). Plaintiff also seeks punitive damages and bad-faith fees
and expenses against Defendants Kellner and Matteson (Counts F and G).
Discussion
I.
Legal Standard - Motion to Dismiss
Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain a
“short and plain statement of the claim showing that the pleader is entitled to
relief.” While this pleading standard does not require “detailed factual
allegations,” mere labels and conclusions or “a formulaic recitation of the
elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In
order to withstand a motion to dismiss, “a complaint must contain sufficient
5
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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Id. (quoting Twombly, 550 U.S. at 570). A complaint is plausible on its
face when the plaintiff pleads factual content necessary for the court to draw the
reasonable inference that the defendant is liable for the conduct alleged. Id.
“At the motion to dismiss stage, all well-pleaded facts are accepted as
true, and the reasonable inferences therefrom are construed in the light most
favorable to the plaintiff.” Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273
n.1 (11th Cir. 1999). However, the same does not apply to legal conclusions set
forth in the complaint. Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260
(11th Cir. 2009) (citing Iqbal, 129 S. Ct. at 1949). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678. Furthermore, the court does not “accept as
true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at
555.
“The district court generally must convert a motion to dismiss into a
motion for summary judgment if it considers materials outside the complaint.”
D.L. Day v. Taylor, 400 F.3d 1272, 1275-76 (11th Cir. 2005); see also Fed. R.
Civ. P. 12(d). However, documents attached to a complaint are considered part
6
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of the complaint. Fed. R. Civ. P. 10(c). Documents “need not be physically
attached to a pleading to be incorporated by reference into it; if the document’s
contents are alleged in a complaint and no party questions those contents, [the
court] may consider such a document,” provided it is central to the plaintiff’s
claim. D.L. Day, 400 F.3d at 1276. At the motion to dismiss phase, the Court
may also consider “a document attached to a motion to dismiss . . . if the
attached document is (1) central to the plaintiff’s claim and (2) undisputed.” Id.
(citing Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002)). “‘Undisputed’
means that the authenticity of the document is not challenged.” Id. The Court
next considers each motion to dismiss and the respective claims against each
Defendant.
II. Analysis
Defendants filed a Motion to Dismiss based on the original Complaint on
February 07, 2014 [14]. Defendants subsequently filed this Motion to Dismiss
[24] in response to Plaintiff’s Amended Complaint [23]. Thus, Defendant’s first
Motion to Dismiss [14] is DENIED as moot, and the Court now considers the
merits of the later motion.
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A.
Federal Constitutional Claims Against Defendants Kellner and
Matteson (Count A)
Under 42 U.S.C. § 1983, individuals are provided a “federal remedy for
the deprivation of rights, privileges, or immunities protected by the Constitution
or the laws of the United States.” Von Stein v. Brescher, 904 F.2d 572, 578
(11th Cir. 1990) (citations omitted). Further, “[a]n individual’s right to be free
from unlawful arrest and imprisonment implicates a liberty interest indisputably
protected by the Constitution and federal laws, the violation of which may give
rise to a cause of action under § 1983.” Motes v. Myers, 810 F.2d 1055, 1059
(11th Cir.1987) (citations omitted). Under the Fourth Amendment (applicable to
states via the Fourteenth Amendment), individuals have a right not to be
arrested without probable cause. Von Stein, 904 F.2d at 578 (citations omitted).
Probable cause exists when a law enforcement officer has knowledge of
“reasonably trustworthy information [which] would cause a prudent person to
believe, under the circumstances shown, that the suspect has committed, is
committing, or is about to commit an offense.” Id. The existence of probable
cause to arrest is determined by an objective standard based on the “totality of
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the circumstances.” United States v. Hastamorir, 881 F.2d 1551, 1555 (11th Cir.
1989) (citations omitted).
Defendants assert that Defendant Kellner is entitled to qualified
immunity from Plaintiff’s § 1983 claim. Under the doctrine of qualified
immunity, government officials who are acting within their discretionary
authority are shielded “from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Rushing v. Parker, 590 F.3d 1263, 1265
(11th Cir. 2010). The contours of the right allegedly violated “must be
sufficiently clear that a reasonable official would understand that what he is
doing violates that right.” Von Stein, 904 F.2d at 579 (citations and internal
quotations omitted).
To determine whether qualified immunity applies in cases involving an
alleged unlawful search and arrest,“the issue is not probable cause in fact but
arguable probable cause.” Von Stein, 904 F.2d at 579 (citation and internal
quotation marks omitted). The standard for arguable probable cause is “whether
a reasonable officer in the same circumstances and possessing the same
knowledge as the officer in question could have reasonably believed that
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probable cause existed in the light of well established law.” Gold v. Miami, 121
F.3d 1442, 1445 (11th Cir. 1997) (citation omitted) (emphasis in original).
Plaintiff alleges he was walking on a sidewalk with other business
patrons when Defendants Kellner and Matteson approached and arrested him.
Plaintiff claims he was subjected to an invasive search by Defendant Matteson
and was placed under arrest without any probable cause. Notably, as alleged by
Plaintiff, the arrest occurred before Defendants Matteson and Kellner possessed
any “trustworthy information” that would have indicated that a crime had been
committed or was about to be committed. The Court finds that a reasonable
officer in the Defendants’ position would not have any reason to believe that
probable cause existed to arrest Plaintiff.3
Plaintiff was arrested for “Drinking in Public.” However, Plaintiff alleges
he was not drinking, had not been drinking, and did not have any paraphernalia
on his person which would have given rise to probable cause for his arrest.
3
Plaintiff’s allegations are similar to those in Brown v. Texas, 443 U.S. 47
(1979). In Brown, a man was stopped, frisked, and arrested after officers spotted him
and another individual walking away from one another in a ‘high drug problem area.’
The Supreme Court, reversing the appellant’s misdemeanor conviction, noted that
there was no indication in the record that it was unusual for people to be in the area
and that “[i]n short, the appellant’s activity was no different from the activity of other
pedestrians in that neighborhood.” Id. at 52.
10
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Defendants argue that the presence of a broken beer bottle in the vicinity of the
Plaintiff is enough to find arguable probable cause existed. (Def.’s Mem., Dkt.
[24] at 19.) Defendants also argue that Plaintiff has not sufficiently alleged
Defendant Kellner’s role in the arrest such that he can be held liable. ([24] at
18.) Defendants’ first argument fails in light of the facts alleged in the Amended
Complaint. Specifically, Plaintiff alleges that the broken bottle was discovered
in an area “heavily littered with debris” by Defendant Matteson after the arrest
and did not belong to Plaintiff at any point. ([23] ¶ 31.) Therefore, the broken
bottle cannot support a finding of probable cause or arguable probable cause at
the time of Plaintiff’s arrest.4
As for Defendant Kellner’s involvement, Plaintiff has shown that
Defendant Kellner was the “arresting officer” who wrote the citation and was
the sole witness called for Plaintiff’s trial. ([23] at 7, 13.) Thus, Plaintiff has
alleged sufficient facts at this stage to show that Defendant Kellner participated
4
Defendants do not argue that the detention of Plaintiff was anything other
than an arrest, and Plaintiff has alleged that the invasive search and handcuffing
amounted to a “full-scale arrest.” (Pl.’s Mem., Dkt. [27] at 15.) Both the arrest and the
search incident to the arrest required probable cause because the search may not
“precede the arrest and serve as part of its justification.” Sibron v. New York, 392
U.S. 40, 67 (1960). Based on Plaintiff’s allegations, he was under arrest and subjected
to the search prior to the existence of probable cause or arguable probable cause.
11
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in the alleged unlawful seizure. Defendants’ focus on Defendant Kellner’s nonparticipation in the search of Plaintiff’s person fails to account for his
participation in the actual arrest.
In sum, the Court finds that the Amended Complaint contains sufficient
facts to support Plaintiff’s allegation that Officer Kellner conducted an arrest
without probable cause. Such an arrest is in violation of a “clearly established”
constitutional right. See Herren v. Bowyer, 850 F.2d 1543, 1547 (11th Cir.
1988) (noting that the law is “clearly established that an arrest
without...probable cause...violates the fourth amendment”) (citations omitted
and internal quotations omitted). Accordingly, Defendants’ motion to dismiss
Plaintiff’s federal constitutional claims against Defendant Kellner is DENIED.
B.
Federal Constitutional Claims Against Defendants Wright and City
of Atlanta (Count A)
Municipalities may be held liable under § 1983 in a limited number of
circumstances. Monell v. New York City Dept. of Soc. Serv.s, 436 U.S. 658
(1978). “[A] municipality cannot be held liable solely because it employs a
tortfeasor–or in other words, a municipality cannot be held liable under § 1983
on a respondeat superior theory.” Id. at 690. However, “[l]ocal governing
12
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bodies...can be sued directly under § 1983...where...the action that is alleged to
be unconstitutional implements or executes a policy statement, ordinance,
regulation, or decision officially adopted and promulgated by that body’s
officers.” Id. Municipalities may also be sued under § 1983 for constitutional
deprivations “visited pursuant to governmental ‘custom,’” even if that custom
has not “received formal approval through the body’s official decisionmaking
channels.” Id. at 691.
In order to hold Defendant Wright and the City of Atlanta liable here,
Plaintiff must show: “(1) that his constitutional rights were violated; (2) that the
municipality had a custom or policy that constituted deliberate indifference to
that constitutional right; and (3) that the policy or custom caused the violation.”
McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004) (citation omitted)
(emphasis added). The causation element requires a showing that “through its
deliberate conduct, the municipality was the ‘moving force’ behind the injury
alleged.” Bd. of Cnty. Com’rs v. Brown, 520 U.S. 397 (1997) (emphasis
removed). In cases where the “municipal action itself violates federal law, or
directs an employee to do so, resolving these issues of fault and causation is
straightforward.” Id. at 404 (emphasis in original).
13
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Plaintiff claims that the alleged unlawful search and arrest were
conducted pursuant to City of Atlanta’s “regulations that encouraged and
condoned illegal seizures, frisks, arrests and searches.” ([23] ¶ 160.) To support
this claim, Plaintiff cites two APD Standard Operating Procedures which
“authorized and instructed officers to detain and frisk individuals during
voluntary encounters without regard to reasonable articulable suspicion” and
“authorized officers to perform warrantless searches without probable cause.”
([23] ¶¶ 162-163.) Plaintiff asserts that Defendant City of Atlanta “requires all
officers to familiarize themselves with Standard Operating Procedures of the
department.” ([23] ¶ 161.)
Construing the facts in a light most favorable to Plaintiff, the City’s
operating procedures appear to be unconstitutional on their face. Notably,
Defendants do not dispute Plaintiff’s characterization of APD’s policies. The
Supreme Court has found that facially unconstitutional or illegal policies, by
themselves, fulfill the causation requirement under Monell. Therefore, Plaintiff
has alleged sufficient facts against City of Atlanta to establish its potential
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liability under § 1983 for the allegedly unlawful search and seizure conducted
by the Defendant Officers.5
Plaintiff’s alternative theory regarding Defendant City of Atlanta’s §
1983 liability is based on a failure to train. Plaintiff cites an independent review
of APD’s officer training program which found that “APD officers had received
no training concerning constitutional law” and “recommended that [APD]
conduct training regarding Fourth Amendment issues including but not limited
to ‘Terry’ stops.” ([23] at 33.) Plaintiff alleges that the “APD Chief of Police
officially rejected the training recommendation” of the independent review
board. ([23] at 33.) Plaintiff also alleges that Defendants Kellner, Matteson, and
Wright were employed during the period of the independent review. Id.
In order to succeed on his failure to train theory, Plaintiff must present
sufficient facts that, if true, would plausibly suggest a “continued adherence to
an approach [a municipality] know[s] or should know fail[s] to prevent tortious
5
In their Reply Brief, Defendants argue that the fact that Defendant Officers
lied in an attempt to show probable cause is evidence that their conduct was not
“caused” by the City’s policies. ([28] at 2-3). While this evidence may create an issue
of fact in the case, the evidence does not warrant dismissal. The Court is required, in
considering a motion to dismiss, to accept the allegations in the Complaint as true and
construe inferences therefrom in the light most favorable to Plaintiff.
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conduct by employees.” Brown, 520 U.S. at 407 (internal quotations and
punctuation omitted). The “failure to train in a relevant respect [must amount]
to deliberate indifference to the constitutional rights of persons with whom the
police come into contact.” Canton v. Harris, 489 U.S. 378, 379 (1989).
According to the Eleventh Circuit, liability will only attach where: “the
municipality inadequately trains or supervises it employees, this failure to train
or supervise is a city policy, and that policy causes the employees to violate a
citizen’s constitutional rights.” Gold v. Miami, 151 F.3d 1346, 1350 (1998)
(citations omitted).
There are two potential routes a plaintiff might follow in alleging a
failure to train claim. First, “it may happen that in light of the duties assigned to
specific officers or employees, the need for more or different training is so
obvious, and the inadequacy so likely to result in the violation of constitutional
rights,” that policymakers’ deliberate indifference to the constitutional rights of
others may be inferred. Id at 390. Second, a plaintiff may present evidence of a
pattern of prior constitutional violations of which a municipality is aware such
that the municipality’s choice not to take action constitutes deliberate
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indifference to the constitutional rights of its citizens. See generally Gold, 151
F.3d 1346.
Plaintiff’s failure to train claim is premised on the findings and
recommendations of the ACRB and the refusal to follow such recommendations
by Defendant City of Atlanta.6 At this stage, the Court finds that Plaintiff has
plead sufficient facts to support a theory of inadequate training in an area where
the need is “so obvious” that deliberate indifference may be inferred.
In Canton, the Supreme Court gave an example of such “obviousness:”
where “city policymakers know to a moral certainty that their police officers
will be required to arrest fleeing felons” and where officers have been armed
“in part to allow them to accomplish this task,” there exists a “need to train
officers in the constitutional limitations on the use of deadly force.” 489 U.S.
378 n.10. In contrast, in Brown, the Supreme Court rejected a failure to train
argument. 520 U.S. 397. There, a municipality was sued on a failure to train
6
Plaintiff also cites a history of settlements between City of Atlanta and
other individuals. However, the settlements do not support Plaintiff’s argument
because Plaintiff has not pled enough facts to show a connection between the
factual scenarios of the settled cases and Plaintiff’s claims. And as Defendants
note, such settlements “could have been done by the City’s attorneys for a
number of strategic reasons.” ([24] at 10.)
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theory after respondent was physically injured during a routine traffic stop and
discovered that the sheriff’s department inadequately screened the background
of the deputy conducting the stop. The deputy had formerly pled guilty to
several driving infractions as well as assault and battery. The Supreme Court
determined that the causal relationship between the sheriff’s failure to screen
and the particular injury was too tenuous. Id.
In Brown, the Court stated: “[t]he likelihood that the situation will recur
and the predictability that an officer lacking specific tools to handle that
situation will violate citizens’ rights could justify” a finding of deliberate
indifference to an “obvious” consequence. 520 U.S. at 409. The Court
emphasized that “the high degree of predictability may also support an
inference of causation.” Id. at 410. Here, violations of citizens’ constitutional
rights are a “highly predictable consequence” of the City’s failure to provide
any constitutional law training, particularly with respect to recurring and
common situations involving searches and seizures, and where an independent
review board identified the need for training in Fourth Amendment issues.
Therefore, Plaintiff’s failure to train theory also supports a finding that City of
Atlanta may be liable for the alleged constitutional violations committed by the
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Defendant Officers. Accordingly, Defendants’ motion to dismiss Plaintiff’s
constitutional claims against City of Atlanta is DENIED.
Plaintiff also asserts his constitutional claims against Defendant Wright
in his official capacity. As Defendants note, however, a suit against individuals
in their “official capacity” is “in actuality, a suit against the local government
entity that the individuals represent.” ([24] at 5.) Where suits are brought
against both a municipality and an officer in his or her official capacity “there
no longer exists a need to bring official capacity actions” because it would be
redundant. Busby v. Orlando, 931 F.2d 764, 776 (11th Cir. 1991).
Consequently, Plaintiff’s § 1983 claim against Defendant Wright in his official
capacity is DISMISSED.7
C.
State Law and State Constitution Claims Against Defendant
Wright in His Official Capacity (Count B)
The Court again notes that “suits against public employees in their
official capacities are in reality suits against the state.” Therefore, Defendant
Wright, in his official capacity, may invoke sovereign immunity. Cameron v.
7
In both the original and Amended Complaint, Plaintiff specified that
Defendant Wright is being sued in his official capacity (while also specifying that
Defendants Matteson and Kellner are being sued in their individual capacities). Thus,
the Court finds this designation was not inadvertent.
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Lang, 549 S.E.2d 341, 346 (Ga. 2001). “The doctrine of sovereign
immunity...protects all levels of governments from legal action unless they have
waived their immunity from suit.” Id. See also O.C.G.A. § 36-33-1 (“it is the
public policy of the State of Georgia that there is no waiver of sovereign
immunity of municipal corporations of the state and such municipal
corporations shall be immune from liability for damages). Plaintiff has the
burden of establishing waiver of sovereign immunity, Scott v. Valdosta, 634
S.E.2d 472 (Ga. Ct. App. 2006), but has not alleged any such waiver here.
Therefore, all state law and state constitutional claims asserted against
Defendant Wright in his official capacity are DISMISSED.
D.
State Law and State Constitutional Claims Against Defendant
Kellner
1.
Official Immunity
Defendants contend that Plaintiff cannot successfully bring state law or
state constitutional claims against Defendant Kellner because Kellner is entitled
to official immunity. In Georgia:
[A]ll officers and employees of the State or its
departments and agencies may be subject to suit
and may be liable for injuries and damages
caused by the negligent performance of, or
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negligent failure to perform, their ministerial
functions and may be liable for injuries and
damages if they act with actual malice or with
actual intent to cause injury in the performance
of their official functions.
Ga. Const. Art. I, Sec. 2, Para. IX. See also Cameron, 549 S.E.2d 341 (2001)
(noting that “[u]nder Georgia law, a public officer or employee may be
personally liable only for ministerial acts negligently performed or acts
performed with malice or an intent to injure”). Plaintiff has not alleged that
Defendant Kellner was performing a ministerial function when he participated
in Plaintiff’s arrest. Defendant Kellner is therefore entitled to official immunity,
unless Plaintiff shows that he acted with actual malice or an intent to injure
Plaintiff. See Taylor v. Waldo, 709 S.E.2d 278 (Ga. Ct. App. 2011).
Defendants argue: “Plaintiff merely makes a rather circular argument that
actual malice existed because Plaintiff was falsely arrested and falsely
imprisoned” and “Plaintiff does not allege any facts to support his contention
that Defendant Kellner acted with actual malice.” (Def.’s Mem., [24] at 22.)
However, Plaintiff has alleged that Defendant Kellner arrested Plaintiff even
though “Defendant Kellner...knew he did not have probable cause.” ([23] at 37,
45.) Further, Plaintiff has alleged that during the OPS inquiry, Defendant
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Kellner declared it was his and Defendant Matteson’s intent to arrest Plaintiff
“regardless.” ([23] at 20 (“Defendant Kellner replied that he and Defendant
Matteson’s intent was to ‘get [Plaintiff] out of the street’ on the night of his
arrest, adding, ‘[r]egardless, [Plaintiff] would be arrested.’”).)
Actual malice or intent to injure has been defined in Georgia as “a
deliberate intention to do a wrongful act,” Adams v. Hazelwood,, 520 S.E.2d
896, 898 (Ga. 1999), and intent to cause the harm suffered by the plaintiff.
Taylor, 709 S.E.2d 278. The Court finds that Plaintiff’s allegations demonstrate
an intent to do a wrongful act such that Defendant Kellner is not entitled to
official immunity on Plaintiff’s state law and state constitutional claims. See
Atlanta v. Shavers, 756 S.E.2d 204 (Ga. Ct. App. 2014) (jury could make
reasonable inference that officer proceeding in arrest despite his knowledge that
there was no probable cause for such arrest showed deliberate intention to do a
wrongful act) ; see also Bateast v. DeKalb Cnty., 572 S.E.2d 756, 758 (Ga. Ct.
App. 2002) (jury could make reasonable inference that officers “proceed[ing] in
their arrest...despite their knowledge that [Plaintiff] had not committed the
crimes for which they accused her...deliberately [intended] to do a wrongful
act”). Having determined that Plaintiff’s state claims against Defendant Kellner
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are not barred by official immunity, the Court will address the merits of those
claims.
2.
False Imprisonment Claim
Under Georgia law, false imprisonment is defined as “the unlawful
detention of the person of another, for any length of time, whereby such person
is deprived of his personal liberty.” O.C.G.A. § 51-7-20. “The essential
elements of the claim are the arrest or the detention and the unlawfulness
thereof.” Kline v. KDB, Inc., 673 S.E.2d 516, 518 (Ga. Ct. App. 2009). An
arrest is “the taking, seizing, or the detaining of the person of another...by any
act indicating an intention to take such person into custody” and “which
subjects such person to the actual control and will of the person making the
arrest.” Conoly v. Imperial Tobacco Co., 12 S.E.2d 398 (Ga. Ct. App. 1940).
In the context of warrantless arrests, an officer will be guilty of this tort
unless he can justify the arrest under one of the exceptions enumerated in
O.C.G.A. § 17-4-20. Collins v. Sadlo, 306 S.E.2d 390, 391 (Ga. Ct. App. 1983)
(emphasis omitted) (citations and internal quotations omitted). Based on the
exceptions in O.C.G.A. § 17-4-20, “it is readily apparent that all...exceptions to
the warrant requirement...in essence presuppose the existence of sufficient
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probable cause.” Id. Thus,“to avoid liability for false imprisonment it must be
shown not only that arrest was valid but also that the arresting officer had
probable cause.” Amason v. Kroger Co., 420 S.E.2d 314, 316 (Ga. Ct. App.
1992).
Here, Plaintiff has alleged that he was taken into custody by Defendants
Matteson and Kellner and that Defendant Kellner knew he did not have
probable cause to arrest Plaintiff. Accepting these allegations as true, as the
Court must at this stage, the arrest was without probable cause and Defendants’
motion to dismiss Plaintiff’s false imprisonment claim is DENIED.
3.
False/Malicious Arrest Claim
“The elements of a false arrest claim include: (1) an arrest under the
process of law, (2) without probable cause, and (3) made maliciously.”
Desmond v. Troncalli Mitsubishi, 532 S.E.2d 463, 467 (Ga. Ct. App. 2000). It
is also necessary “to show that the prosecution terminated in favor of the
complaining party.” Id. As stated above, Plaintiff has sufficiently alleged an
arrest without probable cause, and that Defendants Matteson and Kellner acted
with actual malice or intent to injure. Plaintiff has also alleged that the charges
against him were dismissed. ([23] ¶ 91.) Therefore, Plaintiff has stated a
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plausible claim for false/malicious arrest against Defendant Kellner and
Defendants’ motion to dismiss Plaintiff’s claim for false/malicious arrest is
DENIED.
4.
State Constitution Arrest Abuse Claim
Finally, Plaintiff alleges that Defendants Kellner and Matteson violated
the Georgia Constitution by abusing him when he was arrested. See Ga. Const.
Art. I, Sec. I, Para. XVII (“[N]or shall any person be abused in being arrested,
while under arrest, or in prison.”). Plaintiff states that “[t]he abuse...was the act
of Defendants Matteson and Kellner jointly.”8 ([23] at 207.) As Defendants
note, however, “no evidence exists that Officer Kellner abused Plaintiff”
because Plaintiff “has not alleged Officer Kellner had any physical contact with
him.” (Def.’s Mem., [24] at 20.)
Plaintiff’s response appears to conflate his false arrest claim with his
abuse during arrest claim. Georgia courts treat an arrest abuse claim like an
8
To the extent Plaintiff alleges a conspiracy between the officers to commit
this tort, that argument will not stand because there are no allegations regarding an
agreement between the Defendants. See Bailey v. Bd. Of Cnty. Comm’rs., 956 F.2d
1112, 1122 (11th Cir. 1992) (“[T]he lynchpin for conspiracy is agreement”).
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excessive force or battery claim. See, e.g., Cunningham v. State, 471 S.E.2d
273 (Ga. Ct. App. 1996) (Beasley, C.J., concurring specially)(finding Ga.
Const. Art. I, Sec. I, Para. XVII could support defendant’s rights to defend
against excessive force and noting “[t]he [Georgia] Bill of Rights...guards the
lone arrestee from the unnecessary use of the physical power of the State”);
Long v. Jones, 432 S.E.2d 593 (Ga. Ct. App. 1993) (Ga. Const. Art. I, Sec. I,
Para. XVII provides an independent state ground for battery action). The Court
finds that Plaintiff has not alleged sufficient facts to show that Defendant
Kellner physically abused him during the arrest. Therefore, Defendants’ motion
to dismiss Plaintiff’s arrest abuse claim against Defendant Kellner is
GRANTED.
Conclusion
Based on the foregoing, Defendant’s first Motion to Dismiss [14] is
DENIED as moot. Defendants’ Motion to Dismiss [24] is DENIED in part
and GRANTED in part. The following claims remain:
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•
Fourth Amendment unreasonable search and seizure claim against
Defendants City of Atlanta, Kellner, and Matteson;
•
State-Law false imprisonment claim against Defendants Kellner and
Matteson;
•
State-Law false/malicious arrest claim against Defendants Kellner and
Matteson;
•
State-Law battery claim against Defendant Matteson;
•
State-Law sexual battery claim against Defendant Matteson; and
•
State constitution arrest abuse claim against Defendant Matteson.
SO ORDERED, this 2nd day of July, 2014.
_______________________
RICHARD W. STORY
United States District Judge
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