Kendall et al v. Sutherland et al

Filing 51

ORDER: Defendant Cobb County's Motion to Dismiss 18 is GRANTED, Defendant Sheriff Warren's Motion to Dismiss 19 is GRANTED in part and DENIED in part, Plaintiffs' Motion to Amend the Complaint 27 is GRANTED in part and DENIED in part, and Defendant WellStar's Motion for Reconsideration 47 is DENIED. Cobb County is hereby DISMISSED from this action, and all claims against Sheriff Warren are DISMISSED except for Plaintiffs Kendall, McLaughlin, and Brooks's § 1983 deliberate indifference claim against him in his individual capacity. Plaintiffs may proceed on their Second Amended Complaint 26 for the purposes of their deliberate indifference claim. Signed by Judge Richard W. Story on 11/5/2014. (cem)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JESSICA KENDALL et al.,
Plaintiffs,
v.
ALVIN SUTHERLAND et al.,
Defendants.

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CIVIL ACTION NO.
1:13-CV-04263-RWS

ORDER
This case comes before the Court on Defendant Cobb County’s Motion to
Dismiss [18], Defendant Sheriff Warren’s Motion to Dismiss [19], Plaintiffs’
Motion to Amend the Complaint [27], and Defendant WellStar Health Network,
Inc.’s Motion for Reconsideration [47]. After reviewing the record, the Court
enters the following Order.
Background
This civil rights action arises out of sexual abuse of inmates by two
guards at the Cobb County Adult Detention Center (“CCADC”) from late 2010
until early 2013. Plaintiffs Jessica Kendall, Kimberly McLaughlin,
Alexzandrea Brooks, Stacey Mitchell, and Elizabeth Daley were all either

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pretrial detainees or serving their sentences at the CCADC at the time the
assaults occurred. Plaintiffs sue Cobb County, Sheriff Neil Warren, and the two
perpetrators of the abuse, Sergeant Kristopher Travitz and Sergeant Alvin
Sutherland, pursuant to 42 U.S.C. § 1983 and several state-law causes of action.
Sheriff Warren is the Sheriff of Cobb County and is in charge of the CCADC.
Travitz and Sutherland were sheriff’s deputies working at the jail.
Travitz sexually assaulted Plaintiffs Daley and Mitchell between
approximately November 17, 2010, and January 2, 2011. (First Am. Compl.,
Dkt. [11] ¶ 56.) Before Defendants committed these assaults, inmates filed
several complaints on November 5, 2010, against Travitz based on his sexual
misconduct with inmates. (Second Am. Compl., Dkt. [26] ¶ 21.)1 As a result of
these complaints, Plaintiffs allege Sheriff Warren knew that Travitz acted
inappropriately with inmates before Travitz abused Daley and Mitchell. (Id.)
Travitz would enter the Women’s Work Release Unit late at night to abuse

1

Plaintiffs move to amend their complaint a second time. The Court cites
relevant allegations from the proposed Second Amended Complaint in the
Background and examines the sufficiency of those allegations in the Discussion
section, infra.
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Daley and Mitchell, and at other times he took his victims to secluded parts of
the CCADC. (Id. ¶¶ 52-54.)
Eventually, several deputies at the CCADC confronted Travitz about his
inappropriate contact with Mitchell and demanded to know why he was
providing Mitchell with passes to leave the CCADC at irregular hours. (Id. ¶
54.) At some point during the period of abuse, Travitz told Mitchell that a
deputy had “snitched” on him and he was in trouble. (Id. ¶ 55.) Still, Travitz
continued his pattern of abusive conduct with the knowledge of female sheriff’s
deputies on duty in the Women’s Work Release Unit. (Id.) Deputies continued
to question Mitchell about why Travitz frequently called her out of work to talk
to her and frequently gave her passes, but they never “escalated their concerns
so that the conduct could be investigated internally or externally.” (Id. ¶ 56.)
Over a year later, another deputy named Sutherland started abusing
inmates, too. In January or February 2012, an inmate at the CCADC became
upset in her cell and started yelling at nurses, Sutherland, and other deputies
who were present. (Id. ¶ 22.) She yelled that a guard had been trying to get
inmates to perform sex acts on him, and when she saw Sutherland, she

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exclaimed, “There’s that motherfucker right there.” (Id.) Nobody investigated
this complaint. (Id.)
Sutherland then raped Plaintiff McLaughlin over a nine-month period
from April 2012 to January 2013. (Id. ¶ 44.) Another deputy transported
McLaughlin to different locations in the jail where Sutherland was working to
help Sutherland carry out his attacks. (Id.) McLaughlin informed a fellow
inmate, Latrice Jackson, about this abuse, and she in turn told a guard in August
2012 that Sutherland had been abusing McLaughlin, but nobody followed up on
this report. (Id. ¶ 45.) Around September 11, 2012, Jackson filed a complaint
with the CCADC about Sutherland and his relationship with McLaughlin. (Id.
¶ 46.) Jackson continued to tell other deputies about her concerns and
ultimately filed six grievances in total. (Id. ¶¶ 47-48.) According to Plaintiffs,
“Sheriff Neil Warren either knew of these complaints or should have known of
these complaints.” (Id. ¶ 49.)
Around December 2012 or January 2013, Sutherland sexually assaulted
his next victim, Plaintiff Brooks, after he cornered her alone in a supply closet.
(Id. ¶ 51.) Sutherland then assaulted another inmate, Plaintiff Kendall, in
January 2013 when he was supposed to take her back to her cell but instead
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took her to a secluded part of the jail and raped her. (Id. ¶ 41.) After the attack,
Sutherland took Kendall back to her cell and made her change her clothing and
give him the clothes she had been wearing. (Id. ¶ 42.) However, Kendall
retained her pants to preserve DNA evidence from semen stains. (Id.) At some
point, Kendall reported the rape. Plaintiffs allege that Kendall “was threatened
with charges if she kept complaining before the DNA evidence she provided
came back positive as belonging to Sergeant Sutherland.” (Id. ¶ 43.) Finally, in
March 2013 both Travitz and Sutherland were indicted by a Cobb County grand
jury on numerous counts of aggravated sodomy, aggravated sexual battery,
sexual assault, and sexual assault against a person in custody. (Id. ¶¶ 25-26.)
Both pled guilty in November 2013. Sutherland was sentenced accordingly to
40 years with 20 to serve, and Travitz was sentenced to 15 years with 5 to serve.
(Id.)
On December 26, 2013, Plaintiffs filed this action. In addition to
asserting claims against Travitz and Sutherland, Plaintiffs allege that Cobb
County and Sheriff Warren are liable for Travitz and Sutherland’s actions
because Sheriff Warren had a policy permitting male deputies to transport
female prisoners around the jail unsupervised despite numerous complaints that
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had been filed against both deputies, and otherwise failed to take any action to
stop the abuse. (Id. ¶ 28.) Moreover, Plaintiffs state that some deputy sheriffs
sexually harassed other CCADC employees, and “CCADC was a highly
sexualized facility with rampant abuses of the female inmates and female
guards.” (Id. ¶ 35.)
Based on the above allegations, Plaintiffs allege that Defendants violated
their Eighth and Fourteenth Amendment rights by imposing cruel and unusual
punishments.2 In particular, Sheriff Warren failed to train and supervise
deputies at the CCADC regarding sexual assaults. Additionally, Cobb County’s
ten-percent budget cuts resulted in understaffing of the jail, leading to an unsafe
environment and more sexual assaults. (See id. ¶ 24.) Cobb County and Sheriff

2

“The Eighth Amendment applies to convicted inmates. A pretrial detainee’s
‘constitutional rights arise not from the Eighth Amendment, but from the Due Process
Clause of the Fourteenth Amendment.’ ” Purcell ex rel. Estate of Morgan v. Toombs
County, 400 F.3d 1313, 1318 n.13 (11th Cir. 2005) (quoting Hale v. Tallapoosa
County, 50 F.3d 1579, 1582 n.4 (11th Cir. 1995)). “ ‘[T]he standard[, however,] for
providing basic human needs to those incarcerated or in detention is the same under
both the Eighth and Fourteenth Amendments.’ ” Id. (quoting Marsh v. Butler County,
268 F.3d 1014, 1024 n.5 (11th Cir. 2001) (en banc)). Some Plaintiffs here were
pretrial detainees while others were convicted inmates. Because the applicable
standards are the same for all Plaintiffs, for simplicity’s sake the Court refers only to
the Eighth Amendment in evaluating Plaintiffs’ claims.
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Warren move for dismissal of all claims, and Plaintiffs move to file a Second
Amended Complaint.
Discussion
I.

Motion for Reconsideration
As a preliminary matter, the Court addresses Defendant WellStar Health

Network’s Motion for Reconsideration [47] of the Court’s October 8, 2014
Order [45] granting Plaintiffs’ motion to voluntarily dismiss WellStar without
prejudice. Under the Local Rules of this Court, “[m]otions for reconsideration
shall not be filed as a matter of routine practice[,]” but rather, only when
“absolutely necessary.” LR 7.2(E), NDGa. Such absolute necessity arises
where there is “(1) newly discovered evidence; (2) an intervening development
or change in controlling law; or (3) a need to correct a clear error of law or
fact.” Bryan v. Murphy, 246 F. Supp. 2d 1256, 1258-59 (N.D. Ga. 2003).
However, a motion for reconsideration may not be used “to present the court
with arguments already heard and dismissed or to repackage familiar arguments
to test whether the court will change its mind.” Id. at 1259. Furthermore, “[a]
motion for reconsideration is not an opportunity for the moving party . . . to
instruct the court on how the court ‘could have done it better’ the first time.”
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Pres. Endangered Areas of Cobb’s History, Inc. v. U.S. Army Corps of Eng’rs,
916 F. Supp. 1557, 1560 (N.D. Ga. 1995), aff’d, 87 F.3d 1242 (11th Cir. 1996).
In its October 8 Order [45], the Court treated Plaintiffs’ Motion to
Dismiss [40] as unopposed and denied WellStar’s motion to dismiss as moot.
WellStar argues that the Court should not have granted Plaintiffs’ motion
because WellStar in fact opposed that motion and asked the Court to deny
Plaintiffs’ motion and grant WellStar’s Motion to Dismiss [20] instead.
WellStar indeed responded to Plaintiffs’ motion. While the Court
inaccurately characterized the motion as unopposed, in the Court’s view
granting either Plaintiffs’ motion or WellStar’s motion would result in a
dismissal without prejudice. In WellStar’s motion to dismiss, WellStar argued
that Plaintiffs named WellStar Health Network, Inc., a nonexistent WellStar
entity, as Defendant.3 Moreover, WellStar argued that Plaintiffs’ purported
service of process on the nonexistent entity was insufficient, and thus the Court
lacked personal jurisdiction over the nonexistent entity. (See WellStar’s Mot.

3

James M. Swartz, a vice president of WellStar Health System, Inc., provided
an affidavit explaining that WellStar Health Network, Inc., the party named in this
suit, is not affiliated with his company and apparently does not exist. (Swartz Aff.,
Dkt. [20-2] ¶ 5.)
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to Dismiss, Dkt. [20-1] at 3.) “Dismissal for lack of personal jurisdiction is
without prejudice . . . .” Morris v. SSE, Inc., 843 F.2d 489, 496 (11th Cir.
1988); see also FED. R. CIV. P. 4(m) (“If a defendant is not served within 120
days after the complaint is filed, the court—on motion or on its own after notice
to the plaintiff—must dismiss the action without prejudice against that
defendant . . . .”). Had the Court instead first granted WellStar’s motion,
dismissed the nonexistent WellStar entity without prejudice, and then denied
Plaintiffs’ motion to dismiss as moot, then the result would have been the same.
The Court therefore finds no clear error of fact or law in its earlier Order [45],
and WellStar’s Motion for Reconsideration [47] is accordingly DENIED.
II.

Legal Standards
A.

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
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order to withstand a motion to dismiss, “a complaint must contain sufficient
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. See Iqbal, 556 U.S. at 678. “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. Furthermore, the court does not “accept as true a legal conclusion
couched as a factual allegation.” Twombly, 550 U.S. at 555.
B.

Motion to Amend

Under Rule 15(a)(1) of the Federal Rules of Civil Procedure, a party may
amend a pleading once as a matter of right within twenty-one days after service
of the pleading, or, if the pleading requires a response, within twenty-one days
after service of a responsive pleading or motion filed under Rule 12(b), (e), or
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(f). Otherwise, under Rule 15(a)(2), the party must seek leave of court or the
written consent of the opposing parties to amend. Rule 15(a)(2) directs the
Court, however, to “freely give leave when justice so requires.” Despite this
instruction, however, leave to amend is “by no means automatic.” Layfield v.
Bill Heard Chevrolet Co., 607 F.2d 1097, 1099 (5th Cir. 1979). The trial court
has “extensive discretion” in deciding whether to grant leave to amend.
Campbell v. Emory Clinic, 166 F.3d 1157, 1162 (11th Cir.1999). A trial court
may choose not to allow a party to amend “when the amendment would
prejudice the defendant, follows undue delays or is futile.” Id. A claim is futile
if it cannot withstand a motion to dismiss. Fla. Power & Light Co. v. Allis
Chalmers Corp., 85 F.3d 1514, 1520 (11th Cir.1996); see Burger King Corp. v.
Weaver, 169 F.3d 1310, 1315 (11th Cir.1999) (futility is another way of saying
“inadequacy as a matter of law”). That is, leave to amend will be denied “if a
proposed amendment fails to correct the deficiencies in the original complaint
or otherwise fails to state a claim.” Mizzaro v. Home Depot, Inc., 544 F.3d
1230, 1255 (11th Cir. 2008).
III.

Cobb County’s Motion to Dismiss
A.

Federal Claims
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Plaintiffs assert that Cobb County is responsible for Plaintiffs’
constitutional violations because Sheriff Warren promulgated policies that let
sexual assaults occur and failed to take action to prevent these assaults; Cobb
County failed to maintain and adequately fund the jail; and Cobb County did
not provide adequate staffing and supervision over inmates or staff at the
CCADC. Under 42 U.S.C. § 1983,
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, 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 . . . .
“In order to prevail in a civil rights action under Section 1983, ‘a plaintiff must
make a prima facie showing of two elements: (1) that the act or omission
deprived 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) (quoting Bannum, Inc.
v. City of Ft. Lauderdale, 901 F.2d 989, 996-97 (11th Cir. 1990)). Local

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government units such as counties constitute “persons” subject to suit under §
1983. Monell v. Dep’t of Social Servs., 436 U.S. 658, 690 (1978). At the same
time, however, the Supreme Court “has placed strict limitations on municipal
liability under § 1983.” Grech v. Clayton County, 335 F.3d 1326, 1329 (11th
Cir. 2003).
In this case, Plaintiffs seek to hold Cobb County liable for the
unconstitutional acts and omissions of Sheriff Warren and his deputies. In
Monell, the Supreme Court held that “a municipality cannot be held liable
under § 1983 on a respondeat superior theory.” 436 U.S. at 691. On the
contrary, the Court held that local governing bodies, such as counties, can be
sued under § 1983 only 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. at 690. In
other words, to hold a county liable under § 1983, a plaintiff must show that a
county employee or policymaker committed the constitutional violation, and did
so pursuant to an official county policy or custom. Id. at 694.
1.

Allegations in the First Amended Complaint

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Plaintiffs first assert that Cobb County is liable for Sheriff Warren’s
actions. Cobb County argues, on the other hand, that it cannot be held liable for
Sheriff Warren’s actions because he was acting as an arm of the State of
Georgia in running the jail and so was not acting pursuant to any official county
policy. If that is the case, then Cobb County cannot be liable under § 1983. In
Manders v. Lee, the Eleventh Circuit noted that whether a sheriff acts on behalf
of the state or county is a question that cannot be answered absolutely, but one
that, rather, “must be assessed in light of the particular function in which the
defendant was engaged when taking the actions out of which liability is asserted
to arise.” 338 F.3d 1304, 1308 (11th Cir. 2003). Under this framework, the
Manders court held that in Georgia sheriffs act on behalf of the state, not the
county, “in establishing use-of-force policy at the jail and in training and
disciplining [their] deputies in that regard.” Id. at 1305. The court concluded
that a sheriff’s “authority and duty to administer the jail in his jurisdiction flows
from the State, not [Cobb] County.” Id. at 1315. See also Purcell ex rel. Estate
of Morgan v. Toombs County, 400 F.3d 1313, 1325 (11th Cir. 2005) (“[A
sheriff] functions as an arm of the State—not Toombs County—when
promulgating policies and procedures governing conditions of confinement of
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the Toombs County Jail.”); Scruggs v. Lee, 256 F. App’x 229, 231-32 (11th
Cir. 2007) (“[W]e conclude that [the Sheriff] . . . is an “arm of the State” . . . in
executing the function of establishing policies at the jail for processing
arrestees.”).
Plaintiffs allege that Sheriff Warren’s policies and deliberate indifference
to complaints made by inmates about sexual assault violated Plaintiffs’ Eighth
Amendment rights. As the Eleventh Circuit illustrated in the cases above,
however, Sheriff Warren promulgates jail policies pursuant to his authority as
an arm of the State of Georgia, not as a policymaker of Cobb County. Even if
Sheriff Warren violated Plaintiffs’ constitutional rights, § 1983 does not grant
Plaintiffs a cause of action against Cobb County for Sheriff Warren’s actions in
administering the jail. Therefore, Cobb County is not liable on this basis.
Second, Plaintiffs allege that Cobb County did not adequately fund the
jail, pointing to the County’s duty to properly maintain, operate, and fund the
CCADC. According to Manders, “[Cobb] County must (1) maintain the jail
structure, (2) appropriate funds for necessities to inmates (such as food,
bedding, clothing, electricity, and sanitation) and the salaries of [the Sheriff]
and his deputies, and (3) pay the premium for the Sheriff’s official bond.” 338
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F.3d at 1323. As for the duty to maintain the jail, Cobb County argues that its
statutory duty extends only to the jail’s structure. Indeed, under O.C.G.A. § 369-5(a), the County’s duty is “to erect or repair, when necessary, their respective
courthouses and jails and all other necessary county buildings.” This duty is
not at issue here. Next, Plaintiffs do not allege that Cobb County failed to
appropriate funds for necessities like food or sanitation. In any event, it is the
duty of prison officials to “ensure that inmates receive adequate food, clothing,
shelter, and medical care.” Farmer v. Brennan, 511 U.S. 825, 832 (1994).
Further, Plaintiffs do not allege that Cobb County failed to pay the premium for
the sheriff’s official bond. Accordingly, Plaintiffs fail to allege a basis for Cobb
County’s liability in their First Amended Complaint.
2.

Allegations in the Proposed Second Amended Complaint

Nevertheless, Plaintiffs add a third basis for Cobb County’s liability in
their proposed Second Amended Complaint: Cobb County failed to adequately
staff and supervise the CCADC. Facing a 2011 budget shortfall of $32 million,
Cobb County reduced departmental operating budgets by ten percent, which led
to understaffing at the CCADC. (See Second Am. Compl., Dkt. [26] ¶ 24.)
Plaintiffs allege that this decision in turn created an unsafe environment for
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inmates and put them “at risk for sexual abuse by the jailers after complaints of
sexual misconduct had already been made.” (Id.) Cobb County argues that
amending the complaint would be futile because (1) the budget decision is not a
custom, policy, or practice of Cobb County, and (2) Plaintiffs fail to allege facts
showing that inadequate funding caused Plaintiffs’ injuries. Plaintiffs do not
respond to Cobb County’s arguments opposing Plaintiffs’ amendment to their
complaint; therefore, Cobb County’s arguments are deemed unopposed. See
LR 7.1(B), ND Ga.
Cobb County argues that its single budget decision does not evidence a
policy of understaffing the CCADC. But, assuming it did, Plaintiffs must also
satisfy the causation requirement for municipal liability. The causation element
requires a showing that, “through its deliberate conduct, the municipality was
the ‘moving force’ behind the injury alleged.” Bd. of Cnty. Comm’rs of Bryan
Cnty. v. Brown, 520 U.S. 397, 404 (1997). “Congress did not intend
municipalities to be held liable unless deliberate action attributable to the
municipality directly caused a deprivation of federal rights.” Id. at 415
(emphasis in original). “To meet this burden, a plaintiff must demonstrate that
the lawful action was ‘taken with deliberate indifference as to its known or
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obvious consequences.’ ” McDowell v. Brown, 392 F.3d 1283, 1291 (11th Cir.
2004) (quoting Brown, 520 U.S. at 407). A showing of mere negligence is not
enough to establish municipal liability. Id.
In McDowell v. Brown, the plaintiff alleged that DeKalb County’s
custom of understaffing the jail caused a delay in the plaintiff’s transportation
to a hospital for treatment of a spinal cord compression condition. Id. at 128687. The delay rendered the plaintiff incapable of walking without assistance.
Id. The plaintiff argued that the county was liable for an Eighth Amendment
violation because it failed to properly fund the jail, and so the jail could not
maintain an adequate number of staff. Id. at 1289. But the Eleventh Circuit
found that the plaintiff could not show the county knew that understaffing
would cause delays in medical transports because there were no previous delays
due to understaffing. See id. at 1291. Thus, the court found that the county
“had no notice of the consequences ‘based on previous violations of federally
protected rights.’ ” Id. (quoting Brown, 520 U.S. at 408).
The court next observed that even if a county’s budget decision would
make the violation of constitutional rights “ ‘more likely,’ that alone cannot
‘give rise to an inference that a policy maker’s failure to scrutinize the [budget]
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. . . produced a specific constitutional [violation].” Id. at 1292 (quoting Brown,
520 U.S. at 411). Rather, “liability must be premised on a finding that ‘this’
budget decision was ‘highly likely to inflict the particular injury’ [the plaintiff]
suffered.” Id. In other words, a plaintiff’s injuries must be a “plainly obvious
consequence” of a county’s policy decision. Id. In McDowell, the court further
held that the plaintiff produced no evidence that jail officials were unable to
perform medical transports because of a lack of resources. See id. at 1292-93.
Moreover, the jail had a policy to call an ambulance if it was unable to perform
the transport itself. Id. Thus, the plaintiff’s injury was not a plainly obvious
consequence of the county’s actions, and the court found “no indication that
DeKalb County deliberately invoked a policy to interfere with the Jail’s
provision of medical care to inmates or to deny inmate access to medical care.”
Id. at 1294.
Here, as McDowell illustrates, Cobb County can only be liable if it knew
that cutting the budget in 2011 would likely result in sexual assaults. However,
there are no allegations that Cobb County knew of any sexual assault
complaints before its budget decision. Furthermore, the assaults in 2010
occurred before the alleged understaffing, so these assaults could not have put
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the county on notice that cutting the budget would put inmates at risk of sexual
abuse. Without any allegations that Cobb County itself was on notice of sexual
assaults, the Court cannot conclude that Cobb County deliberately cut the
budget knowing that understaffing was highly likely to lead to sexual abuse by
guards. Instead, the fact that the county faced a budget shortfall indicates that
the county acted not deliberately to cause inadequate staffing and abuse at the
jail but to close a budget gap. Consequently, Plaintiffs fail to allege facts in
their proposed Second Amended Complaint demonstrating that Cobb County
acted with deliberate indifference in its budget decision and that the decision
was the moving force behind Plaintiffs’ injuries. Therefore, amending the
complaint to add these allegations would be futile.
B.

State-Law Claims

Plaintiffs also name Cobb County in most of their counts under state law.
The Georgia Constitution, however, extends sovereign immunity to all levels of
government, including counties. Gilbert v. Richardson, 452 S.E.2d 476, 479
(Ga. 1994). Sovereign immunity “can only be waived by an Act of the General
Assembly which specifically provides that sovereign immunity is thereby
waived and the extent of the waiver.” GA. CONST. art. I, § 2, ¶ 9(e). Plaintiffs
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do not allege in either their First or Second Amended Complaints that Georgia
has waived its sovereign immunity for the purposes of this suit. As a result,
Cobb County is immune from Plaintiffs’ state-law claims. Plaintiffs’ Motion to
Amend [27] is thus DENIED as to Cobb County, and Cobb County’s Motion to
Dismiss [18] is GRANTED.
IV.

Sheriff Warren’s Motion to Dismiss
Sheriff Warren moves to dismiss both the federal and state-law claims

against him in his official and individual capacities. Plaintiffs’ allegations
against Sheriff Warren in their First and Second Amended Complaints are
substantially similar, so the Court refers to both complaints in evaluating the
motion to amend and the motion to dismiss.
A.

Federal Claims
1.

Official-Capacity Claims

Official-capacity suits “generally represent only another way of pleading
an action against an entity of which an officer is an agent.” Monell, 436 U.S. at
690 n.55. Thus, suits against government officials in their official capacities
should be treated as suits against the government. Kentucky v. Graham, 473
U.S. 159, 166 n.11 (1985). States and their officials are immune from suit
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under § 1983 pursuant to the Eleventh Amendment, which, absent
congressional abrogation,4 “protects a State from being sued in federal court
without the State’s consent.” Manders, 338 F.3d at 1308; see also Will v. Mich.
Dep’t of State Police, 491 U.S. 58, 71 (1989) (holding that “neither a State nor
its officials acting in their official capacities are ‘persons’ under § 1983”). This
Eleventh Amendment immunity from suit in federal court applies not only in
suits against a state itself, but also in suits against an “arm of the state.” Id.
In this case, Sheriff Warren contends that he is an “arm of the state” and
is thus entitled to Eleventh Amendment immunity from Plaintiffs’ federal-law
claims. The Court agrees. As explained above, Sheriff Warren acts pursuant to
his authority granted by the State of Georgia, not Cobb County, when he
establishes rules and policies for the jail. Furthermore, Plaintiffs do not
challenge Sheriff Warren’s entitlement to Eleventh Amendment immunity in
his official capacity. Accordingly, the federal claims against Sheriff Warren in
his official capacity are due to be dismissed.
2.

Individual-Capacity Claims

4

Congress did not abrogate Eleventh Amendment immunity for claims brought
pursuant to § 1983. Quern v. Jordan , 440 U.S. 332, 338 (1979).
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Plaintiffs next allege that Sheriff Warren is liable in his individual
capacity for Plaintiff’s injuries because “he instituted policies and customs that
were deliberately indifferent to the Plaintiffs’ constitutional rights.” (Pls.’
Resp., Dkt. [23] at 3.) In particular, Plaintiffs argue Sheriff Warren violated
their Eighth Amendment rights because his policies for training, supervising,
and monitoring his deputies put inmates at substantial risk of serious harm.
(Id.) Additionally, Plaintiffs allege that Sheriff Warren did nothing to protect
inmates even though he knew of the guards’ misconduct. (Second Am. Compl.,
Dkt. [26] ¶ 71.) For his part, Sheriff Warren contends that he did not violate
Plaintiffs’ constitutional rights, and even if he did, he is protected by the
doctrine of qualified immunity.
a.

Qualified Immunity and the Eighth Amendment

The doctrine of qualified immunity protects government officials
performing discretionary functions from being sued in their individual
capacities. Wilson v. Layne, 526 U.S. 603, 609 (1999). Officials are shielded
“insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982). “To receive qualified immunity, a
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government official first must prove that he was acting within his discretionary
authority.” Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003). Once the
government official has satisfied this initial burden, the burden shifts to the
plaintiff to show that the official is not entitled to qualified immunity. Id. at
1358. As a threshold issue, the Court finds that Sheriff Warren has shown that
he acted within his discretionary authority in managing the jail and supervising
deputies.
Next, whether an official is entitled to qualified immunity is determined
by a two-step inquiry: One inquiry is “whether the plaintiff’s allegations, if
true, establish a constitutional violation.” Barnett v. City of Florence, 409 F.
App’x 266, 270 (11th Cir. 2010) (citing Hope v. Pelzer, 536 U.S. 730, 736
(2002)). “If the facts, construed . . . in the light most favorable to the plaintiff,
show that a constitutional right has been violated, another inquiry is whether the
right violated was ‘clearly established.’ ” Id. (citing Saucier v. Katz, 533 U.S.
194, 201 (2001)). “Both elements of this test must be present for an official to
lose qualified immunity, and this two-pronged analysis may be done in
whatever order is deemed most appropriate for the case.” Id. (citing Pearson v.
Callahan, 555 U.S. 223, 241 (2009)).
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To establish supervisory liability for a constitutional violation against a
defendant like Sheriff Warren, a plaintiff must allege that the supervisor
“personally participated in the alleged unconstitutional conduct or that there is a
causal connection between the actions of a supervising official and the alleged
constitutional deprivation.” Key v. Lundy, 563 F. App’x 758, 760 (11th Cir.
2014) (quoting Franklin v. Curry, 738 F.3d 1246, 1249 (11th Cir. 2013)).
As the Eleventh Circuit explained in Cottone v. Jenne,
The necessary causal connection can be established when [1] a
history of widespread abuse puts the responsible supervisor on
notice of the need to correct the alleged deprivation, and he fails to
do so. Alternatively, the causal connection may be established [2]
when a supervisor’s custom or policy results in deliberate
indifference to constitutional rights or [3] when facts support an
inference that the supervisor directed the subordinates to act
unlawfully or [4] knew that the subordinates would act unlawfully
and failed to stop them from doing so.
326 F.3d at 1360 (citations and internal quotation marks omitted). The court
further noted, “The standard by which a supervisor is held liable in his
individual capacity for the actions of a subordinate is extremely rigorous.” Id.
(citation omitted). Here, Plaintiffs do not allege that Sheriff Warren personally
participated in sexual abuse, nor do they allege that he directed subordinates to
act unlawfully. As a result, Plaintiffs must show either that (1) Sheriff Warren
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knew of a history of widespread abuse but did nothing; (2) he enacted a custom
or policy knowing it would result in sexual assault; or (3) he knew Travitz or
Sutherland would act unlawfully and failed to stop them.
b.

Analysis

The Court first notes that Plaintiffs Mitchell and Daley’s claims against
Sheriff Warren based on actions of Sergeant Travitz are barred by Georgia’s
statute of limitations for personal injury actions. Travitz assaulted them
between approximately November 17, 2010, and January 2, 2011. (See Second
Am. Compl., Dkt. [26] ¶ 52.) “Federal courts apply their forum state’s statute
of limitations for personal injury actions brought pursuant to 42 U.S.C. § 1983.”
Lovett v. Ray, 327 F.3d 1181, 1182 (11th Cir. 2003) (quoting Uboh v. Reno,
141 F.3d 1000, 1002 (11th Cir. 1998)) (internal quotation marks omitted).
Federal law, by contrast, determines when the statute of limitations begins to
run in § 1983 cases: “the statute of limitations does not begin to run until the
facts which would support a cause of action are apparent or should be apparent
to a person with a reasonably prudent regard for his rights.” Id. (quoting Rozar
v. Mullis, 85 F.3d 556, 561 (11th Cir. 1996)) (internal quotation marks
omitted). Georgia’s statute of limitations for personal injury actions is two
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years from the date “the right of action accrues.” O.C.G.A. § 9-3-33. Thus, the
statute of limitations for Plaintiffs Mitchell and Daley’s claims expired on
January 2, 2013.
Plaintiffs contend, though, that the statute of limitations was tolled due to
the criminal prosecution against Travitz. “[S]tate law generally determines
tolling rules” in § 1983 cases. Salas v. Pierce, 297 F. App’x 874, 877 (11th Cir.
2008) (citing Wallace v. Kato, 549 U.S. 384, 393-96 (2007)). Under Georgia
law,
The running of the period of limitations with respect to any cause
of action in tort that may be brought by the victim of an alleged
crime which arises out of the facts and circumstances relating to
the commission of such alleged crime committed in this state shall
be tolled from the date of the commission of the alleged crime . . .
until the prosecution of such crime or act has become final or
otherwise terminated, provided that such time does not exceed six
years.
O.C.G.A. § 9-3-99.
The Georgia Court of Appeals has held that this provision “tolls the
statute of limitation for any cause of action in tort brought by the victim of an
alleged crime while the prosecution of the defendant is pending, for a period not
to exceed six years.” Mays v. Target Corp., 743 S.E.2d 603, 46 (Ga. Ct. App.

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2013) (quoting Valades v. Uslu, 689 S.E.2d 338, 342 (Ga. Ct. App. 2009))
(internal quotation marks omitted). Courts thus hold that if a civil defendant in
a tort action is not prosecuted for the crime giving rise to a cause of action,
related criminal proceedings do not toll the statute of limitations for that civil
defendant. See id. (holding that a tort claim against Target arising out of a
Target employee’s invasion of plaintiff’s privacy, for which the employee was
criminally charged and later pled guilty, was barred by the two-year limitations
period because Target was not prosecuted). Here, because Sheriff Warren was
not prosecuted, the two-year statute of limitations for Plaintiffs’ claims against
him was not tolled. Because the statute of limitations ran on January 2, 2013,
and Plaintiffs filed this action on December 26, 2013, Plaintiffs’ claims against
Sheriff Warren based on Travitz’s actions are barred. Accordingly, Sheriff
Warren’s Motion to Dismiss [19] is GRANTED with respect to his liability for
Travitz’s conduct.
The Court turns to Plaintiffs McLaughlin, Kendall, and Brooks’s claims
against Sheriff Warren regarding Sergeant Sutherland. To show a violation of
an inmate’s rights under the Eighth Amendment, “Plaintiff must ‘produce
sufficient evidence of (1) a substantial risk of serious harm; (2) the
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defendant[’s] deliberate indifference to that risk; and (3) causation.’ ” Purcell,
400 F.3d at 1319 (quoting Hale, 50 F.3d at 1582). “To be deliberately
indifferent a prison official must know of and disregard ‘an excessive risk to
inmate health or safety; the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he
must also draw the inference.’ ” Id. at 1319-20 (quoting Farmer, 511 U.S. at
837). In other words, deliberate indifference requires “(1) subjective
knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct
that is more than gross negligence.” Goodman v. Kimbrough, 718 F.3d 1325,
1331-32 (11th Cir. 2013) (emphasis added). “Whether a prison official had the
requisite knowledge of a substantial risk is a question of fact subject to
demonstration in the usual ways, including inference from circumstantial
evidence, and a factfinder may conclude that a prison official knew of a
substantial risk from the very fact that the risk was obvious.” Farmer, 511 U.S.
at 842.
Because the first element of deliberate indifference requires the Court to
examine Sheriff Warren’s subjective knowledge of a risk of serious harm, the
Court must focus on what Sheriff Warren actually knew at the time each
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Plaintiff was assaulted. Again, Plaintiffs may establish this knowledge by
showing that Sheriff Warren enacted a custom or policy knowing it would
likely result in sexual abuse; that he knew of a widespread history of sexual
abuse but failed to take corrective measures; or that he knew his deputies would
engage in sexual abuse but he failed to stop them.
i.

Custom or policy

In addition to the facts alleged in the Background, supra, Plaintiffs assert
that Sheriff Warren knew about Travitz and Sutherland’s sexual misconduct
“and did nothing to implement more stringent policies” to detect and deter
sexual abuse and to protect inmates. (First Am. Compl., Dkt. [11] ¶ 89; see
generally id. ¶¶ 93-115.) Plaintiffs assert that Sheriff Warren allowed his
deputies to transport female inmates around the jail unsupervised and failed to
change this policy after Jackson filed her complaints, while other deputies
“voic[ed] concern about the inappropriate conduct of Sergeant Sutherland.” (Id.
¶ 23.) And in their proposed Second Amended Complaint, Plaintiffs allege that
“most jailers were provided with no formal training concerning proper contact
with inmates.” (Second Am. Compl., Dkt. [26] ¶ 72.)

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Still, Plaintiffs do not adequately allege why Sheriff Warren would have
known that any particular policies were causing deputies to abuse inmates.
While Plaintiffs allege that Sheriff Warren failed to enact training policies to
protect Plaintiffs, they fail to describe “the sort of policies that should have
been in place, or how those policies could have prevented [Sutherland’s]
harassment.” Franklin, 738 F.3d at 1251 (rejecting a plaintiff’s conclusory
allegations about an unconstitutional policy). The Court therefore finds that
Plaintiffs fail to allege that Sheriff Warren promulgated a custom or policy
resulting in deliberate indifference to Plaintiffs’ rights.
ii.

Widespread abuse

Plaintiffs can also show that Sheriff Warren’s lack of action caused their
injuries if Sheriff Warren knew of a history of widespread abuse but failed to
take steps to correct it. “The deprivations that constitute widespread abuse
sufficient to notify the supervising official must be obvious, flagrant, rampant
and of continued duration, rather than isolated occurrences.” Hartley v. Parnell,
193 F.3d 1263, 1269 (11th Cir. 1999) (citation omitted).
Plaintiffs allege that Sheriff Warren “knew or should have known” about
widespread abuse and the risks Plaintiffs faced. The Eleventh Circuit has held
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that this type of conclusory allegation by itself is insufficient to establish
subjective knowledge. In Franklin v. Curry, the plaintiff alleged that a jail
guard sexually assaulted her as she was booked into the jail, and he again
assaulted her in her cell at night. 738 F.3d at 1248. The plaintiff sued the guard
and several supervisory defendants under § 1983, alleging only that the
supervisory defendants “knew or should have known” of the officer’s conduct
and yet failed to adopt policies to protect female inmates. Id. at 1250. The
court held that by alleging knowledge in this way, the plaintiff “ha[d] merely
recited an element of a claim without providing the facts from which one could
draw such a conclusion.” Id. at 1251. Moreover, “she d[id] not describe any of
the policies that were in place, the sort of policies that should have been in
place, or how those policies could have prevented [the officer’s] harassment.”
Id.
Taking Plaintiffs’ allegations as true, the first time Sheriff Warren
became aware of any sexual abuse was when several inmates filed complaints
against Travitz on November 5, 2010. (See id. ¶ 21.) So, unlike the plaintiff in
Franklin, Plaintiffs here allege that Sheriff Warren actually knew “Travitz had
acted inappropriately with inmates prior to the acts alleged [in this case],” and
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Plaintiffs provide a factual basis for this knowledge by alleging that inmates
filed numerous complaints against Travitz. (Id.) By contrast, Plaintiffs do not
allege that Sheriff Warren knew about Travitz’s abuse of Mitchell and Daley in
late 2010. They allege that several deputies “confronted both Sergeant Travitz
and Plaintiff Stacey Mitchell about their inappropriate relationship and
demanded they explain why the Plaintiff was being provided with passes at
irregular hours to leave the CCADC,” (id. ¶ 54) while on the other hand
“Sergeant Travitz’s behavior was not corrected, monitored, or investigated,”
(id. ¶ 55.) There are no facts pertaining to Mitchell and Daley showing that the
deputies ever alerted Sheriff Warren to their concerns, or that anyone filed
formal complaints. Nor do Plaintiffs even allege in a conclusory fashion that
Sheriff Warren knew about Travitz’s abuse of Mitchell and Daley.
The first incident involving Sutherland then occurred over a year later, in
April 2012, when Sutherland began assaulting Plaintiff McLaughlin. (Id. ¶ 44.)
At that point, Sheriff Warren only knew about Travitz’s actions, which were
reported in November 2010, but this limited knowledge is not sufficient to show

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abuse so widespread that other deputies were likely to commit sexual abuse.5
And, while Plaintiffs allege that there was “a history of complaints involving
sexual relationships between jailers and inmates,” (Second Am. Compl., Dkt.
[26] ¶ 72) Plaintiffs do not provide enough factual allegations from which the
Court could conclude that this was so.6 Therefore, Sheriff Warren could not
have known, based solely on Travitz’s misconduct, that there was widespread
abuse at the CCADC.
iii.

Knowledge Sutherland would act unlawfully

The Court next focuses on whether Sheriff Warren knew Sutherland
would act unlawfully and failed to stop him. According to Plaintiffs, the first
time Sheriff Warren found out about Sutherland’s abuse of McLaughlin was in
August or September 2012, when another inmate, Jackson, reported it to
5

Plaintiffs allege that another inmate, who is not a party to this action, verbally
complained to deputies about Sutherland’s conduct in January or February 2012
(before the assaults on McLaughlin). (See Second Am. Compl., Dkt. [26] ¶ 22.)
However, Plaintiffs do not allege that Sheriff Warren knew about these complaints;
instead they allege only that “Defendants failed to take any actions or investigate
pursuant to this complaint.” (Id.) This allegation therefore cannot show that Sheriff
Warren was aware of widespread abuse back in January or February 2012.
6

Of the few specific examples of sexual misconduct by officers that Plaintiffs
cite, one isolated incident occurred “a few years ago,” and the other two occurred after
the events of this case. (First Am. Compl., Dkt. [11] ¶¶ 42-44.) These examples fail
to show a history of widespread abuse.
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several deputies and then filed formal complaints. (See id. ¶¶ 45-47.) Sheriff
Warren argues that Plaintiffs do not allege that the deputies told him about
Jackson’s allegations or that he received a copy of Jackson’s complaints. (See
Warren’s Mot. to Dismiss Br., Dkt. [19] at 14.) Rather, Plaintiffs simply allege
that Sheriff Warren “knew or should have known” of the abuse. But unlike the
plaintiff in Franklin, Plaintiffs here allege facts beyond conclusory statements.
By alleging that Jackson reported abuse to deputies and filed formal complaints,
the Court finds—construing all reasonable inferences in favor of
Plaintiffs—that Sheriff Warren knew about the abuse because it was reported
through a formal grievance process. While Plaintiffs use “knew or should have
known” language like in Franklin, at the motion-to-dismiss stage Plaintiffs’
factual allegations about Jackson’s formal reports provide a plausible basis to
infer Sheriff Warren’s subjective knowledge of Sutherland’s actions.
At this point—September 2012—Sheriff Warren knew that Sutherland
posed a serious risk to McLaughlin and others. Sutherland then continued to
abuse McLaughlin until January 2013. Apparently, “[n]o action was taken to
avoid further contact between Sergeant Sutherland and Plaintiff Kimberly
McLaughlin after [Jackson’s complaints].” (Second Am. Compl., Dkt. [26] ¶
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45.) Further, after Sheriff Warren became aware of this risk, Sutherland
victimized Plaintiff Brooks in December 2012 or January 2013 and then raped
Plaintiff Kendall in January 2013. In view of the facts in the Second Amended
Complaint, Plaintiffs plausibly allege that Sheriff Warren knew Sutherland was
going to act unlawfully but failed to stop him. Consequently, the Court finds
that Plaintiffs have stated a claim against Sheriff Warren for deliberate
indifference.
iv.

Qualified Immunity Analysis

Although Plaintiffs have stated a claim for a constitutional violation, they
must still show that the constitutional right was clearly established at the time of
their injury. A constitutional right is clearly established “only if its contours are
‘sufficiently clear that a reasonable official would understand what he is doing
violates that right.’ ” Vaughan v. Cox, 343 F.3d 1323, 1332 (11th Cir. 2003)
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). While the fact
patterns of prior cases used to show that a right is clearly established need not
be “fundamentally similar” or even “materially similar,” the salient question is
whether the law at the time of the alleged violation gave officials “fair warning”

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that their acts were unconstitutional. Holmes v. Kucynda, 321 F.3d 1069, 1078
(11th Cir. 2003) (quoting Hope, 536 U.S. at 740).
A plaintiff can demonstrate that the contours of the right were clearly
established in several ways. First, a plaintiff may show that “a materially
similar case has already been decided.” Mercado v. City of Orlando, 407 F.3d
1152, 1159 (11th Cir. 2005) (citing Harlow, 457 U.S. at 818). Second, a
plaintiff can point to “a broader, clearly established principle [that] should
control the novel facts [of the] situation.” Id. (citing Hope, 536 U.S. at 741).
Finally, the conduct involved in the case may “so obviously violate[ ] th[e]
constitution that prior case law is unnecessary.” Id. (citing Lee v. Ferraro, 284
F.3d 1188, 1199 (11th Cir. 2002)). Under controlling law, a plaintiff must carry
his burden by looking to the law as interpreted at the time by the U.S. Supreme
Court, the Eleventh Circuit, or the Georgia Supreme Court. See id.
Sheriff Warren argues that he is entitled to qualified immunity because
Plaintiffs have not produced case law showing that a policy permitting male
deputies to escort female inmates around the jail without supervision violates
clearly established law. While that may be true, there are more facts to this
case. As explained above, Plaintiffs state a claim not based on inadequate
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policies but on Sheriff Warren’s knowledge that Sutherland would engage in
illegal conduct and Sheriff Warren’s failure to stop it.
In that regard, the Eighth Amendment protects prisoners from “the
unnecessary and wanton infliction of pain.” Farmer, 511 U.S. at 835. The
Eleventh Circuit has recognized that “severe or repetitive sexual abuse of a
prisoner by a prison official can violate the Eighth Amendment.” Boxer X v.
Harris, 437 F.3d 1107, 1111 (11th Cir. 2006). “[S]exual abuse of a prisoner by
a corrections officer has no legitimate penological purpose, and is simply not
part of the penalty that criminal offenders pay for their offenses against
society.” Id. (quoting Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997)).
The right to be free from sexual abuse was thus clearly established at the time
of Sutherland and Warren’s actions. And, in light of the principles of
supervisory liability discussed above, it follows that it was also clearly
established that deliberate indifference to a known risk of sexual abuse by a
prison guard was unconstitutional. Cf. Farmer, 511 U.S. at 850 (holding that
prison officials could be liable for deliberate indifference toward transsexual
inmate who was transferred to a maximum security facility where he was raped
and assaulted by prisoners because there was evidence that the officials knew
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the risks the inmate faced); Mathews v. Crosby, 480 F.3d 1265, 1275 (11th Cir.
2007) (explaining that it was clearly established that a supervisor could face
liability for “fail[ing] to take reasonable steps in the face of a history of
widespread abuse”). Consequently, Sheriff Warren’s Motion to Dismiss [19] is
DENIED and Plaintiffs’ Motion to Amend [27] is GRANTED as to this claim.
B.

State-Law Claims

The Court’s final inquiry examines the state-law claims against Sheriff
Warren in his official and individual capacities.
1.

Official-Capacity Claims

Because suits against state officials in their official capacities are in
reality suits against the state, Brandon v. Holt, 469 U.S. 464, 471 (1985), a state
official sued in his or her official capacity “is entitled to the [state]’s defense of
sovereign immunity.” Nichols v. Prather, 650 S.E.2d 380, 385 (Ga. Ct. App.
2007). Again, Sheriff Warren’s official-capacity claims under state law are in
reality claims against the State of Georgia. Because Plaintiffs do not cite any
legislative waiver of Georgia’s sovereign immunity for the purposes of this suit,
Plaintiffs’ official-capacity claims against Sheriff Warren are likewise
DISMISSED.
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2.

Individual-Capacity Claims

The state constitutional provision governing official immunity provides:
[A]ll officers or 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 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.
Except as provided in this subparagraph, officers and employees of
the state or its departments and agencies shall not be subject to suit
or liability, and no judgment shall be entered against them, for the
performance or nonperformance of their official functions.
GA. CONST. art. I, § 2, ¶ 9(d). The Supreme Court of Georgia has held that the
term “official functions” refers to “any act performed within the officer’s or
employee’s scope of authority, including both ministerial and discretionary
acts.” Gilbert, 452 S.E.2d at 483. Accordingly, under this definition, the
constitutional provision “provides no immunity for ministerial acts negligently
performed or for ministerial or discretionary acts performed with malice or an
intent to injure.” Id. “It, however, does provide immunity for the negligent
performance of discretionary acts . . . .” Id. In sum, under Georgia law, “a
public officer or employee may be personally liable only for ministerial acts

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negligently performed or discretionary acts performed with malice or intent to
injure.” Harvey v. Nichols, 581 S.E.2d 272, 276 (Ga. Ct. App. 2003).
As a threshold matter, the Court finds that Sheriff Warren was
performing discretionary acts in developing policies for the jail and supervising
his deputies. Plaintiffs do not dispute this point. Next, the Court concludes that
Plaintiffs have failed to show actual malice or intent to injure on the part of
Sheriff Warren. For purposes of official immunity, “ ‘actual malice’ requires a
deliberate intention to do wrong, and denotes express malice or malice in fact.
It does not include willful, wanton or reckless conduct or implied malice. Thus,
actual malice does not include conduct exhibiting a reckless disregard for
human life.” Daley v. Clark, 638 S.E.2d 376, 386 (Ga. Ct. App. 2006).
Plaintiffs allege that Sheriff Warren knew or should have known that sexual
assaults against Plaintiffs were taking place yet did nothing to protect the
inmates. Still, Plaintiffs have not alleged any facts suggesting that Sheriff
Warren acted with the deliberate intention to harm Plaintiffs. Even if he was
deliberately indifferent or reckless in ignoring inmate complaints, Plaintiffs’
First and Second Amended Complaints fail to establish malice. For that reason,
Sheriff Warren is entitled to official immunity. Consequently, Plaintiffs’
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Motion to Amend [27] is DENIED, and Sheriff Warren’s Motion to Dismiss
[19] is GRANTED as to Plaintiffs’ state-law claims.
Conclusion
For the foregoing reasons, Defendant Cobb County’s Motion to Dismiss
[18] is GRANTED, Defendant Sheriff Warren’s Motion to Dismiss [19] is
GRANTED in part and DENIED in part, Plaintiffs’ Motion to Amend the
Complaint [27] is GRANTED in part and DENIED in part, and Defendant
WellStar’s Motion for Reconsideration [47] is DENIED.
Cobb County is hereby DISMISSED from this action, and all claims
against Sheriff Warren are DISMISSED except for Plaintiffs Kendall,
McLaughlin, and Brooks’s § 1983 deliberate indifference claim against him in
his individual capacity. Plaintiffs may proceed on their Second Amended
Complaint [26] for the purposes of their deliberate indifference claim.
SO ORDERED, this 5th day of November, 2014.

________________________________
RICHARD W. STORY
United States District Judge

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