Perkins v. Thrasher
Filing
69
ORDER granting in part and denying in part 42 Defendant's Motion for Summary Judgment. It is GRANTED as to Plaintiff's Section 1983 claim for excessive force (Count 3) as well as his state law claims for malicious arrest (Count 4), m alicious prosecution (Count 5), and false imprisonment (Count 6). It is DENIED as to Plaintiff's Section 1983 claims for false arrest (Count 1) and malicious prosecution (Count 2), as well as his derivative claims for punitive damages (Count 7) and attorney's fees (Count 8). Signed by Judge Richard W. Story on 8/30/2016. (bdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
HERBERT W. PERKINS,
Plaintiff,
v.
MICHAEL C. THRASHER,
Defendant.
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CIVIL ACTION NO.
1:14-CV-1067-RWS
ORDER
This case comes before the court on Defendant Michael C. Thrasher’s
Motion for Summary Judgment [42]. After reviewing the record, the Court
enters the following Order.
Background
This case arises out of Plaintiff Herbert Perkins’ arrest for obstruction
while outside of the Clayton County Police Department (“CCPD”)
headquarters. On March 7, 2012, Defendant, a Sergeant with the CCPD, exited
the CCPD headquarters where he observed Plaintiff walking in the parking lot.
(Def.’s Statement of Mat. Facts (“SMF”), Dkt. [44] ¶ 1, 3; Pl.’s SMF, Dkt. [55-
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2] ¶ 1, 3.) Most of the facts that follow are in dispute.
According to Defendant, Plaintiff was walking slowly around a section
of the parking lot where only CCPD employees park and was looking inside
and around the vehicles. (Def.’s SMF, Dkt. [44] ¶ 3.) Because Defendant did
not recognize Plaintiff, and because he was aware of recent thefts involving
police vehicles and equipment, Defendant decided to watch Plaintiff while he
walked to his police car. (Id. ¶ 3-4.) As Defendant was getting in his police
car, he claims that Plaintiff looked in his direction, stopped looking in and
around the cars, and began walking away from the building in a purposeful
manner. (Id. ¶ 5.) Then, after Defendant drove out of the parking lot and it
appeared to Defendant that Plaintiff could no longer see Defendant’s police
car, Defendant claims that Plaintiff went back to wandering around the parking
lot and looking into cars. (Id. ¶ 6.) Defendant continued watching Plaintiff
and contends that Plaintiff eventually noticed. (Id. ¶ 7.) According to
Defendant, Plaintiff then “ducked down” and disappeared from Defendant’s
view only to “pop up” two or three cars down the parking row and to begin
walking quickly toward the street and out of the parking lot. (Id.)
Plaintiff’s version of what took place in the parking lot is quite different.
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First of all, Plaintiff admits that he was walking around the parking lot, but
claims that he was simply there to pick up his own car—a Kia. (Pl.’s SMF,
Dkt. [55-2] ¶ 3.) At the time, Plaintiff’s wife was an employee at the CCPD
headquarters. (Pl.’s Decl., Dkt. [55-3] ¶ 3.) On that morning, Plaintiff had
driven his wife’s truck to the dealership for maintenance and his wife had taken
Plaintiff’s Kia to work. (Id. ¶ 5.) When the service on his wife’s truck was
complete, Plaintiff drove it to the CCPD headquarters to leave it in the parking
lot and to pick up his own Kia. (Id. ¶ 7.) Plaintiff’s wife had not, however,
driven straight to the CCPD headquarters that morning. (Id. ¶ 6.) Instead, she
went to the Clayton County Board of Commissioner’s office where she
attended an award ceremony. (Id.) So, after walking around the parking lot for
a few minutes, Plaintiff could not find his Kia. (Id. ¶ 12.) He tried to call his
wife to find out where she was, but she did not answer. (Id.) Plaintiff claims
that he then went back to the truck and began to leave the parking lot to drive
home. (Id. ¶¶ 13-14.) He disputes having ever noticed Defendant watching
him or that he “ducked down” to disappear from Defendant’s view. (Pl.’s
SMF, Dkt. [55-2] ¶¶ 6-7.)
As Plaintiff was leaving the parking lot, Defendant realized that he was
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walking to the truck and began driving toward Plaintiff to prevent him from
exiting the parking lot. (Def.’s SMF, Dkt. [44] ¶ 8; Pl.’s SMF, Dkt. [55-2] ¶ 8.)
Plaintiff entered the truck, so Defendant pulled his vehicle at an angle in front
of it, exited his police car, and yelled for Plaintiff to stop. (Id.) Plaintiff
stopped.1 (Id.)
The nature of the initial encounter between the parties is heavily
disputed. According to Defendant, it went as follows. Plaintiff immediately
began talking in a loud voice and questioning why Defendant stopped him.
(Def.’s SMF, Dkt. [44] ¶ 9.) Defendant then asked Plaintiff to calm down and
to move the truck back along the curb where it had originally been parked so
that he would not block the driveway to the parking lot. (Id. ¶ 10.) Plaintiff
moved the truck but did not calm down. (Id.) Defendant “requested that
Plaintiff provide an explanation for why he was in the area of the CCPD
parking lot where the employees park, but Plaintiff would not answer
[Defendant’s] questions and remained in an agitated, hostile state.” (Id. ¶ 11.)
1
There is some dispute as to whether Plaintiff stopped immediately, (Pl.’s
SMF, Dkt. [55-2] ¶ 8), or “tried to nose around [Defendant’s] car but could not and
then stopped the truck.” (Def.’s SMF, Dkt. [44] ¶ 8.) But Defendant admits in his
reply to Plaintiff’s statement of material facts that such a dispute is immaterial.
(Def.’s Reply to Pl.’s SMF, Dkt. [65] ¶ 8.)
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Fearing that Plaintiff might become violent and suspecting that Plaintiff had
been trying to break into cars in the CCPD parking lot, Defendant told Plaintiff
that if he did not explain why he was there and what he was doing he would be
arrested for loitering. (Id. ¶ 12.) Plaintiff then began to give inconsistent and
confusing statements about where his wife worked, including a statement that
she worked for CCPD. (Id. ¶ 13.) Because Defendant thought that Plaintiff
was acting in a hostile and disrespectful manner, Defendant did not believe
Plaintiff’s statement. (Id. ¶ 14.) As a result, he attempted to verify it by asking
for the name of Plaintiff’s wife. (Id.) Plaintiff initially refused to provide his
wife’s name and failed to give a sufficient reason for his presence in the CCPD
parking lot. (Id.) Eventually, Plaintiff did provide his wife’s name. (Id.)
Plaintiff, on the other hand, claims that the initial encounter went as
follows. After stopping him, Defendant told Plaintiff he needed to provide a
lawful explanation for why he was walking around the CCPD headquarters
parking lot. (Pl.’s Decl., Dkt. [55-3] ¶ 18.) Plaintiff explained that he was
looking for his Kia and that his wife worked in the CCPD headquarters. (Id. ¶
19.) Plaintiff admits that he was “loud,” but disputes Defendant’s contention
that he was “hostile.” (Pl.’s SMF, Dkt. [55-2] ¶ 11.) Even though Defendant
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did not believe Plaintiff’s explanation, Plaintiff continued trying to explain that
his wife was probably still at the Clayton County Commissioner’s office. (Pl.’s
Decl., ¶ 20.) Defendant then began “verbally jabbing” Plaintiff about not
knowing where his wife worked and suggested that Plaintiff was lying. (Id.)
Defendant made no effort to confirm that Plaintiff’s wife worked at the CCPD
headquarters. (Id. ¶ 21.)
At this point in the events, Defendant glanced at his patrol car, realized
that his in-car video camera was not on, and returned to the car and activated
the camera. (Def.’s SMF, Dkt. [44] ¶ 15; Pl.’s SMF, Dkt. [55-2] ¶ 15.) The
Court has reviewed the resulting video and will rely on it, where appropriate, in
describing the remaining facts. Given certain limitations, however, such as the
camera angle and the clarity of the audio, the Court will continue to rely on the
parties’ statements of material facts and the record evidence when the video is
unclear.
After turning on the camera on his police car, Defendant returned to the
passenger side of Plaintiff’s truck. (Disc 1 File KSI-03/07/2012 08:17:56 #1 at
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00:54, Dkt. [46].)2 Shortly thereafter, Defendant received information from
dispatch that Plaintiff “was familiar for obstruction, battery on police, and for
having a firearms permit.” (Def.’s SMF, Dkt. [44] ¶ 16; Pl.’s SMF, Dkt. [55-2]
¶ 16; see also Video at 01:48-54.) At that point, Defendant asked Plaintiff if he
had any weapons in the truck. (Video at 01:54-55.) Plaintiff responded “no, I
do not have a gun with me, but I do have a permit.” (Id. at 01:56.) Defendant
claims that as Plaintiff made this statement, he looked down at his jacket.
(Def.’s SMF, Dkt. [44] ¶ 17.) Plaintiff denies this, (Pl.’s SMF, Dkt. [55-2] ¶
17), and the video cannot resolve this dispute because the lighting is such that
Plaintiff cannot be seen through the truck’s windshield. (See Video at 1:59.)
In any event, Defendant reacted by crossing in front of the truck to the
driver side door. (Id. at 2:02-2:09.) Defendant then opened the driver side
door and instructed Plaintiff to step out. (Id. at 2:11.) Plaintiff reacted by
saying “wait a minute, excuse me, are you searching my car?” (Id. at 2:11-13.)
At the same time, it appears that the door of the truck closes slightly before
reopening again. (Id.) Defendant claims that this is because Plaintiff tried to
2
For the remainder of this Order, the Court will cite to the video as “Video,”
with a pincite indicating the time in the video when the cited event takes place.
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pull the door shut, but Plaintiff disputes this. (Def.’s SMF, Dkt. [44] ¶ 19; Pl.’s
SMF, Dkt. [55-2] ¶ 19.) Defendant then told Plaintiff that he was going to pat
him down, at which point Plaintiff exited the truck and repeatedly said “pat me
down.” (Video at 2:14-19.) Next, Defendant told Plaintiff to “turn around”
and to “place [his] hands on the car.” (Id. at 2:17-18.) Plaintiff complied. (Id.)
Then, as Defendant began the pat down, Plaintiff yelled “whoa, whoa” and
lifted his left hand off the side of the truck. (Id. at 2:20-21.) At this point in
the video, the truck’s open driver side door stands between the camera and the
parties, blocking the view. Thus, all of the events that follow Plaintiff lifting
his hand off the truck are either difficult or impossible to see.
According to Plaintiff, he lifted his hand off the truck because Defendant
“hit [Plaintiff] in the groin which caused [Plaintiff] to buckle.” (Pl.’s SMF,
Dkt. [55-2] ¶ 21.) Defendant offers no explanation for Plaintiff’s movement,
but claims that he did not know whether Plaintiff was trying to escape, reach
for a weapon, fight, or just resist the pat-down. (Def.’s SMF, Dkt. [44] ¶ 21.)
As a result, Defendant “pushed his weight into Plaintiff, pushing him into the
car; grabbed Plaintiff’s arm; swept his legs out from under him and took him to
the ground.” (Def.’s SMF, Dkt. [44] ¶ 21; Pl.’s SMF, Dkt. [55-2] ¶ 21.) Once
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Plaintiff was on the ground, Defendant handcuffed him and arrested him for
obstruction. (Def.’s SMF, Dkt. [44] ¶ 21-22; Pl.’s SMF, Dkt. [55-2] ¶ 21-22.)
Later in the video, after Plaintiff was in custody, Defendant asked him “why
did you pull away when I was trying to pat you down?” (Video at 5:02-04.)
Plaintiff responded “because you grabbed my private area.” (Video at 5:0507.)
On March 28, 2012, Plaintiff was charged with one count of
misdemeanor obstruction. (Def.’s SMF, Dkt. [44] ¶ 24; Pl.’s SMF, Dkt. [55-2]
¶ 24.) The accusation was twice amended to add one count of disorderly
conduct, a second count of misdemeanor obstruction, and one count of
loitering. (Id.) On August 29, 2012, Plaintiff was found not guilty of all
charges. (Id.)
Plaintiff’s Complaint [1-2] raises three claims under 42 U.S.C. § 1983:
false arrest; malicious prosecution; and excessive force. It also raises three
claims under Georgia state law: malicious arrest, malicious prosecution, and
false imprisonment. Defendant filed his Motion for Summary Judgment [42]
on October 15, 2015.
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Discussion
I.
Legal Standard
Federal Rule of Civil Procedure 56 requires that summary judgment be
granted “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(a). “The moving party bears ‘the initial responsibility of informing the . . .
court of the basis for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, which it believes demonstrate the absence
of a genuine issue of material fact.’” Hickson Corp. v. N. Crossarm Co., 357
F.3d 1256, 1260 (11th Cir. 2004) (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (internal quotations omitted)). Where the moving party makes
such a showing, the burden shifts to the non-movant, who must go beyond the
pleadings and present affirmative evidence to show that a genuine issue of
material fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257
(1986).
The applicable substantive law identifies which facts are material. Id. at
248. A fact is not material if a dispute over that fact will not affect the outcome
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of the suit under the governing law. Id. An issue is genuine when the evidence
is such that a reasonable jury could return a verdict for the non-moving party.
Id. at 249-50.
In resolving a motion for summary judgment, the court must view all
evidence and draw all reasonable inferences in the light most favorable to the
non-moving party. Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296 (11th
Cir. 2002). But the court is bound only to draw those inferences that are
reasonable. “Where the record taken as a whole could not lead a rational trier
of fact to find for the non-moving party, there is no genuine issue for trial.”
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
“If the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted.” Anderson, 477 U.S. at 249-50 (internal citations
omitted); see also Matsushita, 475 U.S. at 586 (once the moving party has met
its burden under Rule 56(a), the nonmoving party “must do more than simply
show there is some metaphysical doubt as to the material facts”).
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II.
Analysis
A.
Plaintiff’s Section 1983 Claims
Plaintiff brings three claims against Defendant under 42 U.S.C. § 1983:
(1) false arrest; (2) malicious prosecution; and (3) excessive force. Defendant
argues that he is entitled to qualified immunity as to all three. (Def.’s Br. in
Supp. of Mot. for Summ. J. (“Def.’s MSJ Br.”), Dkt. [43] at 7-21.)
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 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.
To begin, the Court concludes that Defendant was acting within his
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discretionary authority as a police officer when he stopped Plaintiff, conducted
the pat-down, and arrested him. “Discretionary authority includes all acts of a
governmental official that were (1) undertaken pursuant to the performance of
his duties and (2) within the scope of his authority.” Howell v. City of
Lithonia, 397 F. App’x 618, 620 (11th Cir. 2010) (citing Jordan v. Doe, 38
F.3d 1559, 1566 (11th Cir. 1994)). “Carrying out an investigatory stop and
making an arrest are quintessentially discretionary acts of law-enforcement
officials.” Townsend v. Coffee Cty., Ga., 854 F. Supp. 2d 1345, 1356 (S.D.
Ga. 2011). Because Defendant has established that he was acting within his
discretionary authority, the burden shifts to Plaintiff to show that Defendant is
not entitled to qualified immunity. Oliver v. Fiorino, 586 F.3d 898, 905 (11th
Cir. 2009) (citing McCullough v. Antolini, 559 F.3d 1201, 1205 (11th Cir.
2009)).
Now that the burden is on Plaintiff, the question of qualified immunity is
decided through a two-step inquiry: the first 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
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plaintiff, show the violation of a constitutional right, then the second inquiry
“is whether the right violated was ‘clearly established.’” Id. (quoting 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, 236 (2009)). Because Plaintiff brings three
Section 1983 claims against Defendant, the Court will conduct the remainder of
the qualified immunity analysis as to each claim in turn.
1.
False Arrest
Plaintiff first alleges that Defendant violated his Fourth Amendment
rights by arresting him for obstruction without probable cause to believe that
Plaintiff committed a crime. (Compl., Dkt. [1-2] ¶¶ 54-58.) “Plainly, an arrest
without probable cause violates the right to be free from an unreasonable
search under the Fourth Amendment.” Durruthy v. Pastor, 351 F.3d 1080,
1088 (11th Cir. 2003); see Skop v. City of Atlanta, 485 F.3d 1130, 1137 (11th
Cir. 2007) (noting that the reasonableness of an arrest is determined by the
presence or absence of probable cause). “Probable cause to arrest exists when
law enforcement officials have facts and circumstances within their knowledge
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sufficient to warrant a reasonable belief that the suspect had committed or was
committing a crime.” Skop, 485 F.3d at 1137.
While the standard for a false arrest claim itself is probable cause, “[t]o
receive qualified immunity, an officer need not have actual probable cause, but
only ‘arguable’ probable cause.” Brown v. City of Huntsville, 608 F.3d 724,
734 (11th Cir. 2010). “Arguable probable cause exists where ‘reasonable
officers in the same circumstances and possessing the same knowledge as the
Defendants could have believed that probable cause existed to arrest Plaintiff.’”
Id. (quoting Kingsland v. City of Miami, 382 F.3d 1220, 1232 (11th Cir.
2004)). Whether an officer possesses probable cause or arguable probable
cause depends on the elements of the alleged crime and the operative fact
pattern. See Crosby v. Monroe Cty., 394 F.3d 1328, 1333 (11th Cir. 2004).
As an initial matter, Defendant correctly points out that an officer is
entitled to qualified immunity if he has probable cause to arrest the suspect for
any offense. See Durruthy, 351 F.3d at 1089 n.6. Nonetheless, Defendant only
argues that he had arguable probable cause to arrest Plaintiff for the crime of
obstruction. (See Def.’s MSJ Br., Dkt. [43] at 11, 14; Def.’s Reply Br. in Supp.
of Mot. for Summ. J. (“MSJ Reply Br.”), Dkt. [64] at 6-7, 8.) For this reason,
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the Court will only discuss arguable probable cause in the context of
obstruction.
Plaintiff was arrested for the misdemeanor charge of obstruction under
O.C.G.A § 16-10-24(a). That statute says that “a person who knowingly and
willfully obstructs or hinders any law enforcement officer in the lawful
discharge of his official duties is guilty of a misdemeanor.” O.C.G.A. § 16-1024(a). Defendant contends that he had arguable probable cause to arrest
Plaintiff under that statute for two reasons.
First, Defendant points to Plaintiff’s movement during the pat-down.
(Def.’s MSJ Br., Dkt. [43] at 11, 14.) What took place during the pat-down,
however, is disputed. Defendant claims that he began the pat-down and then
Plaintiff “attempted to turn around,” which Defendant perceived as resisting.
(Id. at 11.) Plaintiff, on the other hand, claims that Defendant intentionally hit
Plaintiff in the groin, which caused Plaintiff to buckle. (Pl.’s SMF, Dkt. [55-2]
¶ 21.) Importantly, the video cannot not resolve this dispute. Because the
parties are at the extreme right side of the frame during the pat-down, and
because the open driver side door stands between the camera and the parties,
the Court cannot discern precisely what happened during the pat-down. What
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is clear from the video is that Plaintiff at least initially consented: he repeatedly
said “pat me down” and obeyed when Defendant asked him to “turn around”
and to “place [his] hands on the car.” (Video at 2:14-18.) The video reveals
less as the pat-down proceeded because at that point Defendant is entirely
outside of the frame. Just a moment after the pat-down began, Plaintiff yelled
“whoa, whoa” and appears to have lifted his left hand off the side of the truck.
(Id. at 2:21.) It is unclear from the video why Plaintiff moved.
Again, at this stage, the Court must view the facts in the light most
favorable to Plaintiff, the non-moving party. See Patton, 277 F.3d at 1296;
Barnett, 409 F. App’x 266 at 270. It is not clear whether Plaintiff moved
during the pat-down on his own accord or because Defendant struck him in the
groin. If it was the latter, then Defendant had no arguable probable cause to
arrest Plaintiff for obstruction. No reasonable officer could believe that he had
probable cause to arrest someone for obstructing a pat-down when the officer
himself caused the supposed “obstruction.” Because there is a genuine dispute
of material fact as to the cause of Plaintiff’s movement and the Court must
construe the facts in a light most favorable to Plaintiff, the Court cannot
conclude as a matter of law that Defendant had arguable probable cause to
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arrest Plaintiff on the basis of that movement.
Second, Defendant argues that he had arguable probable cause to arrest
Plaintiff for obstruction simply because Plaintiff “refused to answer
[Defendant’s] questions, was argumentative and belligerent, and was being
stubborn and obstinate.” (Def.’s MSJ Reply Br., Dkt. [64] at 7.) To support
this position, Defendant cites Georgia case law holding that “violence or
forcible resistance is not required to prove that an officer was hindered or
obstructed in a misdemeanor obstruction case. Argument, flight, stubborn
obstinance, and lying are all examples of conduct that may satisfy the
obstruction element.” Pinchon v. State, 516 S.E.2d 537, 538 (Ga. Ct. App.
1999). But even considering this language, the Court is not convinced that
arguable probable cause existed to arrest Plaintiff for obstruction.
Plaintiff was no doubt upset, but he remained compliant throughout the
encounter. Plaintiff tried—multiple times—to explain that he was only in the
CCPD headquarters parking lot because his wife worked there and he was
looking for his car. And Defendant clearly understood Plaintiff’s explanation
because his first comment to Plaintiff after the video begins is “so your wife is
Patricia Perkins, [and] she works in here?” (Video at 11:54-56.) As further
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evidence of his compliance, Plaintiff responded candidly and clearly when
Defendant asked him whether he had any weapons in the truck. (Id. at 01:5657.) He also consented to the pat-down when Defendant opened Plaintiff’s
door and asked him to step out and to place his hands on the truck. (Id. at 2:1520.) Compliance of this sort is distinct from conduct that Georgia courts have
identified as misdemeanor obstruction. See Mayhew v. State, 682 S.E.2d 594,
598 (Ga. Ct. App. 2009) (finding sufficient evidence of obstruction where the
defendant repeatedly refused to obey the officer’s verbal commands to calm
down and to step back from where the officer was interviewing the victim);
Harris v. State, 622 S.E.2d 905, 907 (Ga. Ct. App. 2005) (same where the
defendant disobeyed the officer’s lawful commands “to wait and to back off”);
see also Johnson v. State, 766 S.E.2d 533, 535-36 (Ga. Ct. App. 2014)
(collecting cases where speech alone constituted obstruction). For that reason,
the Court cannot conclude as a matter of law that Defendant had arguable
probable cause to arrest Plaintiff for obstruction based on his interactions with
Plaintiff before the pat-down.
In summary, taking the facts in the light most favorable to Plaintiff, the
Court cannot conclude that Defendant had arguable probable cause to arrest
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Plaintiff based on his conduct either before or during the pat-down. As a
result, Defendant’s actions, under Plaintiff’s version of the events, would
constitute a violation of Plaintiff’s Fourth Amendment right to be free from
unreasonable searches and seizures. See Durruthy, 351 F.3d at 1088. And that
right was clearly established at the time that Defendant arrested Plaintiff. See
Skop, 485 F.3d at 1143 (“[O]ur binding precedent clearly established . . . that
an arrest made without arguable probable cause violates the Fourth
Amendment’s prohibition on unreasonable searches and seizures.”). So
Defendant is not entitled to qualified immunity and the Court must DENY
summary judgment as to Plaintiff’s Section 1983 claim for false arrest (Count
1).
2.
Malicious Prosecution
Plaintiff’s next claim against Defendant is for malicious prosecution in
violation of the Fourth Amendment. (Compl., Dkt. [1-2] ¶¶ 59-65.) “[T]o
establish a federal malicious prosecution claim under § 1983, a plaintiff must
prove (1) the elements of the common law tort of malicious prosecution, and
(2) a violation of [his] Fourth Amendment right to be free from unreasonable
seizures.” Kingsland v. City of Miami, 382 F.3d 1220, 1234 (11th Cir. 2004).
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The common law elements include: “(1) a criminal prosecution instituted or
continued by the present defendant; (2) with malice and without probable
cause; (3) that terminated in the plaintiff accused’s favor; and (4) caused
damage to the plaintiff accused.” Wood v. Kesler, 323 F.3d 872, 882 (11th Cir.
2003).
Defendant’s sole argument in favor of summary judgment on Plaintiff’s
malicious prosecution claim is that the undisputed facts show that Defendant
had probable cause to arrest Plaintiff for obstruction. (Def.’s MSJ Br., Dkt.
[43] at 15-16.) Indeed, Defendant insists that “the analysis [of Plaintiff’s
malicious prosecution claim] is the same as that for a § 1983 false arrest
claim.” (Id. at 14.) As a result, Defendant rests his success on the malicious
prosecution claim on his success on the false arrest claim. But because the
Court found that, viewing the facts in the light most favorable to Plaintiff,
Defendant would not have had probable cause to arrest Plaintiff for obstruction
in Part II.A.1., supra, it must also reject Defendant’s argument as to Plaintiff’s
malicious prosecution claim. The Court therefore DENIES Defendant
summary judgment as to Plaintiff’s Section 1983 malicious prosecution claim
(Count 2).
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3.
Excessive Force
Finally, Plaintiff raises a Fourth Amendment excessive force claim
against Defendant for “using force against a citizen without arguable probable
cause to believe that the citizen committed or was committing a crime.”
(Compl., Dkt. [1-2] ¶ 68.) Defendant argues that he is entitled to summary
judgment on this claim because it is subsumed by Plaintiff’s false arrest claim.
“[W]here an excessive force claim is predicated solely on allegations the
arresting officer lacked the power to make an arrest, the excessive force claim
is entirely derivative of, and is subsumed within, the unlawful arrest claim.”
Bashir v. Rockdale Cty., 445 F.3d 1323, 1332 (11th Cir. 2006). That is
precisely the case here. Plaintiff’s excessive force claim depends on his
contention that it was improper for Defendant to use any force against him
because Defendant lacked arguable probable cause to believe that Plaintiff had
committed a crime. (See Compl., Dkt. [1-2] ¶¶ 66-69; Pl.’s MSJ Opp’n Br.,
Dkt. [55-1] at 17-18.) Because Plaintiff’s excessive force claim is not
“discrete,” Bashir, 445 F.3d at 1332, Defendant’s Motion for Summary
Judgment [42] is GRANTED as to that claim (Count 3). The Court notes,
however, that Plaintiff may still recover the damages suffered because of
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Defendant’s use of force through his false arrest claim. See id. (“[T]he
damages recoverable on an unlawful arrest claim ‘include damages suffered
because of the use of force in effecting the arrest.’”) (quoting Williamson v.
Mills, 65 F.3d 155, 158 (11th Cir. 1995)).
B.
Plaintiff’s State Law Claims
Plaintiff also brings three state law claims against Defendant: malicious
arrest under O.C.G.A. § 51-7-1 (Count 4); malicious prosecution under
O.C.G.A. § 51-7-40 (Count 5); and false imprisonment under O.C.G.A. § 51-720 (Count 6). (Compl., Dkt. [1-2] ¶¶ 70-74; 75-79; 80-84.) Defendant argues
that he is entitled to summary judgment on all of these claims. (Def.’s MSJ Br.,
Dkt. [43] at 21-23.) Plaintiff offers no argument in response. Instead, he
merely asks the Court to dismiss his state law claims without prejudice. (Pl.’s
MSJ Opp’n Br., Dkt. [55-1] at 19 n.10.) The Court declines to do so. Plaintiff
had ample opportunity to prosecute his state law claims in this case, but failed
to do so by not responding to Defendant’s arguments on summary judgment.
For that reason, Defendant’s Motion for Summary Judgment [42] is
GRANTED as to all of Plaintiff’s state law claims (Counts 4-6). Those claims
are therefore DISMISSED with prejudice.
23
AO 72A
(Rev.8/82)
Conclusion
For the reasons above, Defendant’s Motion for Summary Judgment [42]
is GRANTED in part and DENIED in part. It is GRANTED as to
Plaintiff’s Section 1983 claim for excessive force (Count 3) as well as his state
law claims for malicious arrest (Count 4), malicious prosecution (Count 5), and
false imprisonment (Count 6). It is DENIED as to Plaintiff’s Section 1983
claims for false arrest (Count 1) and malicious prosecution (Count 2), as well
as his derivative claims for punitive damages (Count 7) and attorney’s fees
(Count 8).
SO ORDERED, this 30th day of August, 2016.
________________________________
RICHARD W. STORY
United States District Judge
24
AO 72A
(Rev.8/82)
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