Williams v. City of Atlanta, Georgia et al

Filing 10

ORDER that Defendants 3 Motion to Dismiss Plaintiffs Complaint is GRANTED in part and DENIED in part. In sum, Count III is DISMISSED; Count VI is DISMISSED, except as alleged against the City of Atlanta and then only to the extent of any insurance policy covering the purported acts of the Citys police officers; and Count VII is DISMISSED. Furthermore, all claims alleged against the Atlanta Police Department are DISMISSED. In addition, as no claims remain against Chief George Turner, he is hereby DISMISSED from this lawsuit. Signed by Judge Richard W. Story on 03/30/2016. (rsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
TERESA WILLIAMS, as
surviving spouse and as
administratrix of the estate of
Lewis Williams, Jr., Deceased,
Plaintiff,
v.
CITY OF ATLANTA, GEORGIA,
ATLANTA POLICE
DEPARTMENT, POLICE CHIEF
GEORGE N. TURNER,
individually and in his official
capacity, and OFFICER JUSTIN
LOCKE, individually and in his
official capacity,
Defendants.

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CIVIL ACTION NO.
1:15-CV-02679-RWS

ORDER
This case comes before the Court on Defendants’ Motion to Dismiss
Plaintiff’s Complaint [3]. After reviewing the record, the Court enters the
following order.
Background1

1

As the case is before the Court on a Motion to Dismiss, the Court accepts as
true the facts alleged in the complaint. Cooper v. Pate, 378 U.S. 546, 546 (1964).

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This case arises out of a series of events that transpired on July 3, 2014,
which ultimately led to the shooting death of Lewis Williams, Jr., by Officer
Justin Locke of the Atlanta Police Department (“Officer Locke”). The
following facts are taken from Plaintiff’s Complaint [1-1] and, for purposes of
Defendants’ Motion to Dismiss, are accepted as true.
On July 3, 2014, two officers of the Atlanta Police Department
responded to a call of a domestic disturbance at 150 Adair Avenue, Atlanta,
Georgia. (Compl., Dkt. [1-1] ¶ 10.) The officers received a description of a
man who was involved in the disturbance.2 (Id.) That description matched the
appearance of Mr. Williams; however, the officers were unable to locate him
before withdrawing from the scene in response to another 911 call. (Id.) Soon
after, Officer Locke arrived at 150 Adair Avenue. (Id. ¶ 11.) There, he spoke
to Mr. Williams’s wife, Plaintiff Teresa Williams, who informed him that Mr.
Williams suffered from dementia and hearing loss. (Id.) Officer Locke then
left to search for Mr. Williams. (Id.)

2

The nature of the disturbance at 150 Adair Avenue is unclear from the
Complaint. However, it appears to have involved some altercation between Henry
Hancock and Mr. Williams (or someone matching the description of Mr. Williams).
(Compl., Dkt. [1-1] ¶ 13.)
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Officer Locke found Mr. Williams walking alone on Claire Drive. (Id. ¶
14, 19.) Mr. Williams was walking peaceably; he was unarmed and did not
appear threatening. (Id. ¶¶ 12, 15-16, 20, 45.) Plaintiff alleges that Officer
Locke lacked probable cause to presume Mr. Williams had committed any
crime and did not have a warrant for his arrest. (Id. ¶¶ 12, 14.) Nevertheless,
believing Mr. Williams to match the physical description given at 150 Adair
Avenue, Officer Locke decided to attempt an arrest. (Id.) He did not request
back-up, in violation of proper police protocol. (Id.) And though he knew Mr.
Williams suffered from dementia and hearing loss, Officer Locke did not
engage his lights or sirens, nor did he identify himself as a police officer. (Id. ¶
22.) Instead, Officer Locke unholstered his firearm, pointed it at Mr. Williams,
and began rapidly approaching him. (Id. ¶¶ 22-23, 26.) Mr. Williams did not
recognize Officer Locke as a police officer. (Id. ¶ 38.) Standing on the
sidewalk, he was startled, frightened, and confused as Officer Locke descended
upon him. (Id. ¶ 26.) However, despite fearing for his life, Mr. Williams did
not approach Officer Locke or attempt to flee.3 (Id. ¶ 46.) Then, Officer Locke
3

Plaintiff alleges in her complaint that Mr. Williams was in “reasonable
apprehension of receiving a violent injury” and “had a right to defend himself and to
retreat.” (Id. ¶¶ 23, 38.) Yet, it is unclear whether Mr. Williams did, in fact, attempt to
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panicked and discharged his firearm. (Id. ¶¶ 27, 28.) Mr. Williams was shot
multiple times in the arm and chest. (Id. ¶¶ 27, 41.) He died at the scene. (Id.
¶ 44.)
Plaintiff Teresa Williams, as surviving spouse and administrator of her
deceased husband’s estate, brought this suit against Officer Locke, the City of
Atlanta, Atlanta Police Department (“APD”), and Atlanta Police Chief George
Turner (“Chief Turner”) in State Court of Fulton County. Defendants removed
to this Court. (Dkt. [1].) Plaintiff brings her claims under both federal and
state law. (Compl., Dkt. [1-1].) In particular, Plaintiff alleges causes of action
under 42 U.S.C. § 1983 for violations of the Fourth and Fourteenth
Amendments (Counts I, II, and III).4 Further, Plaintiff raises claims under
defend himself against Officer Locke. As it is more favorable to Plaintiff’s case to
infer that Mr. Williams did not, the Court will proceed under that assumption. Bryant
v. Avado Brands, Inc., 187 F.3d 1271, 1273 n.1 (11th Cir. 1999).
4

As a preliminary matter, the Court concludes that any reference to violations
of the Eighth Amendment in the parties’ filings is misplaced. (See Compl., Dkt. [1-1]
¶¶ 1, 2, 32; Defs.’ Mot. to Dismiss Compl., Dkt. [3] at 18.) Though Plaintiff’s
Complaint alleges that Defendant Locke’s actions violated Mr. William’s “[f]reedom
from the use of excessive, unreasonable and unjustified force against his person,” the
following paragraph specifically references only the Fourth and Fourteenth
Amendments. (Compl., Dkt. [1-1] ¶¶ 48, 49.) Therefore, it appears that Plaintiff
intended to invoke the constitutional protection from excessive force implemented
during an arrest, which is embodied in the Fourth Amendment, not the Eighth. See,
e.g., Kesinger v. Herrington, 381 F.3d 1243, 1248 (11th Cir. 2004). And as it is well4

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Georgia tort law for assault, battery, wrongful death, and negligent breach of
ministerial duties (Counts IV, V, VI, and VII). Finally, Plaintiff asserts that she
is entitled to reasonable attorney’s fees (Count VIII).
Defendants now move to dismiss each of those claims pursuant to
Federal Rule of Civil Procedure 12(b)(6). (Defs.’ Mot. to Dismiss Compl.
(“Mot. to Dismiss”), Dkt. [3].) The Court sets out the legal standard governing
Defendants’ Motion to Dismiss before considering the motion on the merits.
Discussion
I.

Legal Standard
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,” “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

settled that the Eighth Amendment applies only to those convicted of crimes, see, e.g.,
Whitley v. Alberts, 475 U.S. 312, 319 (1986), the Court will proceed on the
assumption that Plaintiff bases her Section 1983 claims only on purported violations
of the Fourth and Fourteenth Amendments.
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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. Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260
(11th Cir. 2009) (citing Iqbal, 556 U.S. at 678). “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
555.5

5

The Court notes that Plaintiff takes particular issue with the “overuse” of
Twombly’s pleading standard. (Pl.’s Resp. to Defs.’ Mot. to Dismiss (Pl.’s Resp.),
Dkt. [7] at 6.) Nevertheless, the Court is bound by this Supreme Court precedent and
its progeny.
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II.

Analysis
Defendants move to dismiss Plaintiff’s Complaint on four grounds.

First, Defendants argue that the Atlanta Police Department is not a legal entity
capable of being sued. Second, Defendants argue that Plaintiff does not allege
sufficient facts to hold the City, the individual Defendants in their official
capacities, and Defendant Turner in his individual capacity liable for claims
under 42 U.S.C. § 1983. Third, Defendants argue that Plaintiff’s state law
claims against the City and individual officers in their official capacities are
barred by the doctrine of sovereign immunity. Fourth, Defendants argue that
Defendant Lock in his individual capacity is entitled to qualified immunity and
cannot be liable under state law. Plaintiff opposes Defendants’ motion, arguing
that the Complaint contains sufficient facts to state a claim against each
defendant under both state and federal law, that the City has waived sovereign
immunity at least to the extent of an existing insurance policy, and that Officer
Locke’s actions are not protected by official immunity. Using the legal
framework set forth above, the Court examines Plaintiff’s claims against each
Defendant to determine whether the Complaint states a claim upon which relief
may be granted.
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A.

Claims against Defendant Atlanta Police Department

As an initial matter, the Court agrees with Defendants that the Atlanta
Police Department is not an entity capable of being sued. In a federal court, the
capacity of an entity to be sued is determined by the law of the state where the
court is located. See FED. R. CIV. P. 17(b)(3). The State of Georgia recognizes
only three classes as legal entities capable of suing or being sued: (1) natural
persons; (2) corporations; and (3) quasi-artificial persons that the law
recognizes as being capable of bringing suit. Ga. Insurers Insolvency Pool v.
Elbert Cnty., 368 S.E.2d 500, 502 (Ga. 1988). The Eleventh Circuit has
indicated that “[s]heriff’s departments and police departments are not usually
considered legal entities subject to suit” under Georgia law and therefore may
not be properly sued as a party in federal court. Lawal v. Fowler, 196 F. App’x
765, 768 (11th Cir. 2006) (quoting Dean v. Barber, 951 F.2d 1210, 1214 (11th
Cir. 1992)); see also Lovelace v. DeKalb Cent. Probation, 144 F. App’x 793,
795 (11th Cir. 2005) (affirming district court’s dismissal of DeKalb County
Police Department as a defendant because under Georgia law it is not a legal
entity subject to suit); Jackson v. Hall Cnty. Sheriff’s Office, No. 2:10-cv00070-WCO (N.D. Ga. Mar. 3, 2011) (order dismissing all claims against the
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Hall County Sheriff’s Office on grounds that it is not an entity having capacity
to be sued).
Plaintiff does not dispute Defendants’ motion as far as it pertains to
Atlanta Police Department. (Pl.’s Resp., Dkt [7] at 8.) Accordingly, all claims
against the Atlanta Police Department are DISMISSED.
B.

Claims against Defendant City of Atlanta

Plaintiff asserts claims against the City of Atlanta under both 42 U.S.C.
§ 1983 and Georgia law. Defendants move to dismiss on grounds that these
claims fail as a matter of law. The Court now considers each of these claims in
turn, beginning with Plaintiff’s Section 1983 claims.
1.

Section 1983

“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)).
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Local government units, such as cities, constitute “persons” subject to suit
under Section 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 [Section] 1983.” Grech v. Clayton
Cty., 335 F.3d 1326, 1329 (11th Cir. 2003).
“[A] municipality cannot be held liable under [Section] 1983 on a
respondeat superior theory.” Monell, 436 U.S. at 691. Instead, local
governing bodies, such as cities, can be sued under Section 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 city
liable under section 1983, a plaintiff must show that a city employee or
policymaker committed the constitutional violation, and did so pursuant to an
official municipal policy or custom. Id. at 694; Grech, 335 F.3d at 1329 n.5
(explaining that the requirement of a policy or custom “is intended to
distinguish acts of the municipality from acts of employees of the
municipality,” thereby clarifying “that municipal liability is limited to action
for which the municipality is actually responsible” (quoting Pembaur v. City of
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Cincinnati, 475 U.S. 469, 479-80 (1986)) (emphasis in original)). Plaintiff,
therefore, must identify an official policy or practice that was the driving force
behind the alleged violation of Mr. Williams’s constitutional rights.
Plaintiff appears to base her Section 1983 claim against the City of
Atlanta on two allegations: (1) failure to adequately supervise and train and (2)
negligent hiring. The Court considers whether either of these claims, as
pleaded in the Complaint, identify policies or customs of the City that can give
rise to Section 1983 liability.6
Plaintiff’s first allegation does not. Only in “limited circumstances” may
an allegation of failing to train or supervise subordinates serve as the basis for a
Section 1983 claim. Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir.
1998) (citing City of Canton v. Harris, 489 U.S. 378, 387 (1989)). To establish
liability under Section 1983 based on the inadequacy of police training or
supervision, a plaintiff must show that “the failure to train [or supervise]
amounts to deliberate indifference to the rights of persons with whom the
6

The Court notes that Plaintiff also asserts the City failed to implement
“policies governing the conduct of officers” and to hold officers “accountable for
adhering to professional standards of conduct.” (Compl., Dkt. [1-1] ¶ 59.) These
allegations are encompassed within Plaintiff’s claim for inadequate training and
supervision. As such, the Court does not discuss them separately.
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police come into contact.” Am. Fed’n of Labor & Cong. of Indus. Orgs. v. City
of Miami, 637 F.3d 1178, 1188 (11th Cir. 2011) (quoting City of Canton, 489
U.S. at 388). “Deliberate indifference can be established in two ways: by
showing a widespread pattern of similar constitutional violations by untrained
[or unsupervised] employees or by showing that the need for training [or
supervision] was so obvious that a municipality’s failure to train its employees
would result in a constitutional violation.” Mingo v. City of Mobile, 592 F.
App’x 793, 799-800 (11th Cir. 2014), cert. denied, 135 S. Ct. 2895 (2015).
By showing deliberate indifference, a failure to train or supervise can
properly be characterized as a “policy” or “custom” of the municipality. Of
course, a plaintiff may also show the failure to train was pursuant to an official
policy. However, since Plaintiff has not identified any policy or custom
adopted or promulgated by the City of Atlanta that caused her injury, and
because municipalities will rarely have any “express written or oral policy of
inadequately training or supervising its employees,” the Court focuses its
attention on whether Plaintiff has sufficiently alleged deliberate indifference in
her Complaint. Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998).
Here, the Complaint does not include sufficient facts about a history of
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abuse or widespread problems that would allow the Court to find that the City
was put on notice regarding the need for more training or supervision. The
Complaint contains only conclusory allegations about the City’s failure to
provide adequate supervision and training on “procedures pertaining to
[officers’] lawful authority, the use of force, and proper use of firearms.”
(Compl., Dkt. [1-1] ¶ 63.) Essentially, Plaintiff has simply stated a
conclusion–that Defendants “fail[ed] to develop and adopt standard operating
procedures with respect to the activities of police officers . . ., thereby allowing
them to make decisions without proper constitutional guidance”–but has not
provided sufficient facts from which the Court could draw that conclusion.
The Court cannot accept these unsupported allegations as a valid basis for a
claim against the City. See Oxford Asset Mgmt. v. Jaharis, 297 F.3d 1182,
1187-88 (11th Cir. 2002) (stating that “conclusory allegations, unwarranted
deductions of facts[,] or legal conclusions masquerading as facts will not
prevent dismissal”). Without basis in specific facts, such assertions are not
sufficient to show that the training of Atlanta police officers was inadequate
and that the city was on notice of any deficiency.
Of course, there is an “obvious need to train [armed] police officers on
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the constitutional limitations on the use of deadly force.” Gold v. City of
Miami, 151 F.3d 1346, 1352 (11th Cir. 1998) (citing City of Canton, 48 U.S. at
390 n.10). But Plaintiff’s Complaint still falls short. Mere notice of a need to
train or supervise is not sufficient. Rather, a plaintiff must further establish
that the city “made a deliberate choice not to take any action.” Id. at 1350. The
Complaint does not contain allegations sufficient to identify a specific decision
made by a final policymaker for the City resulting in a systemic failure to
adequately train and supervise police officers. As a result, the Complaint does
not include facts from which the Court could conclude that the City has
violated Section 1983 under a theory of inadequate training and supervision.
Nor can Plaintiff’s second allegation–that the City of Atlanta hired
unqualified individuals–support a claim against the City under Section 1983.
To hold a city liable under Section 1983 based on an “isolated decision to hire
[an officer] without adequate screening,” a plaintiff must demonstrate “that the
decision reflected a conscious disregard for a high risk that [the officer] would
use excessive force in violation of [the plaintiff’s] federally protected right.”
Bd. of County Comm’rs v. Brown, 520 U.S. 397, 415-16 (1997). Moreover,
the plaintiff must show the offending “officer was highly likely to inflict the
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particular injury suffered by the plaintiff,” as well as a strong “connection
between the background of the particular applicant and the specific
constitutional violation alleged.” Id. at 412.
Plaintiff’s Complaint does not satisfy this standard. Plaintiff does not
identify any “pattern of injuries” linked to the City’s hiring decisions. Id. at
408. Rather, Plaintiff makes the broad assertion that the City “hired
individuals, such as Defendant Locke, who were not qualified for their
positions by virtue of their backgrounds.” (Compl., Dkt [1-1] p 64.) Plaintiff
does not offer any facts related to any officer’s background or how that
background would provide notice that Officer Locke or any other officer would
inflict the exact constitutional injury alleged.
Furthermore, Plaintiff has not sufficiently pled causation. Plaintiff
merely alleges that “hiring an officer who was not qualified to be entrusted
with firearms” was a partial “cause of the violations of decedent’s rights.”
(Compl., Dkt. [1-1] ¶ 65.) This fails to allege facts that would allow the Court
to infer how Officer Locke was unqualified, whether that lack of qualification
was evident at the application stage, and how that lack of qualification resulted
in the death of Mr. Williams. The law that binds this Court does not permit
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such an attenuated link. If it did, the “danger that a municipality would be held
liable without fault [would be too] high.” Brown, 520 U.S. at 408. Hence,
Plaintiff’s Complaint fails to allege facts that would allow the Court to
conclude that the City of Atlanta hired unqualified individuals and that such
hiring caused the constitutional violations alleged.
As a result, Plaintiff’s Section 1983 claims against the City fail as a
matter of law based on either of Plaintiff’s theories. Defendants’ Motion to
Dismiss Plaintiff’s constitutional claims against the City of Atlanta is therefore
GRANTED.
However, the Court recognizes the high bar that Section 1983 Plaintiffs
face even at the motion to dismiss stage. If discovery reveals an official policy
or custom, Plaintiff may seek leave to amend her Complaint, provided that this
motion is made within 75 days of the commencement of discovery and includes
an amended complaint that fully satisfies the applicable pleading requirements.
That is, any amendment must include specific factual allegations that provide
context and information that would support Plaintiff’s overall allegations
regarding the existence of a policy or practice in place, consistent with the
requirements for establishing such a claim under 42 U.S.C. § 1983 against the
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City of Atlanta. See generally Grech, 335 F.3d at 1348; Gold v. City of Miami,
151 F.3d 1346, 1350-51 (11th Cir. 1998).
2.

State Law Claims

Next, the Court turns to Plaintiff’s state law claims. Defendants argue
that any state law tort claim asserted against the City of Atlanta is barred by
state sovereign immunity.
Generally speaking, sovereign immunity protects the state from suit
without its consent. See Nat’l Ass’n of Bds. of Pharmacy v. Bd. of Regents of
the Univ. Sys. of Ga., 633 F.3d 1297, 1307 (11th Cir. 2011); see also State Bd.
of Educ. v. Drury, 437 S.E.2d 290, 292 (Ga. 1993). “Under Georgia law,
municipal corporations are protected by sovereign immunity pursuant [] to . . .
Article IX, Section II, Paragraph IX [of the state constitution], unless that
immunity is waived by the General Assembly.” City of Atlanta v. Mitcham,
769 S.E.2d 320, 322 (Ga. 2015). The General Assembly enacted such a waiver
in O.C.G.A. § 36-33-1. According to that statute, a city or municipality in
Georgia “is not liable for the negligence or misconduct of its officers in the
performance of governmental functions,” City of Atlanta v. Fry, 251 S.E.2d 90
(Ga. Ct. App. 1978), but may be liable for negligence or misconduct of its
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officers in the performance of proprietary or ministerial functions. Rutherford
v. DeKalb County, 651 S.E.2d 771, 772 (Ga. Ct. App. 2007).
Plaintiff alleges that the City is liable under state law for negligent
breach of ministerial duties. That claim is grounded in Defendants’ alleged
failure to abide by the training requirements in the Georgia Peace Officer
Standards and Training (“POST”) Act, O.C.G.A. § 35-8-1 et seq., and
Plaintiff’s assertion that these failures are ministerial ones. (See Compl., Dkt.
[1-1] ¶ 76.) The Court need not determine here whether or not adherence to the
POST Act is ministerial. The Georgia Court of Appeals has found that the
POST Act does not create a private cause of action for POST Act violations,
regardless of any additional official immunity protections. See Govea v. City
of Norcross, 608 S.E.2d 677, 683 (Ga. Ct. App. 2005) (“The POST Act
expressly authorizes civil actions, but only by the POST Council, only for
injunctive relief, and only under certain circumstances not alleged here. The
General Assembly could have created a cause of action in favor of private
individuals injured for a unit’s noncompliance with the POST Act reporting
requirements. But it did not.”). Consequently, Plaintiff has not alleged a valid
cause of action under state law for Defendants’ alleged violations of Georgia’s
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POST Act.
Plaintiff further alleges that Defendants breached a ministerial duty in
hiring Officer Locke. But contrary to Plaintiff’s assertion, hiring decisions do
not constitute a “ministerial duty,” the improper performance of which could
subject the City of Atlanta to liability. “A ministerial act is commonly one that
is simple, absolute, and definite, arising under conditions admitted or proved to
exist, and requiring merely the execution of a specific duty.” Hicks v. McGee,
713 S.E.2d 841, 844 (Ga. 2011). By contrast, “[a] discretionary act . . . calls for
the exercise of personal deliberation and judgment, which in turn entails
examining the facts, reaching reasoned conclusions, and acting on them in a
way not specifically directed.” Id. The decision of whether or not to hire a
particular applicant is not a ministerial act but a discretionary one, as it calls for
a great deal of personal deliberation, judgment, and reasoning. See Carter v.
Glenn, 548 S.E.2d 110, 113 (Ga. Ct. App. 2001) (“The operation of a police
department . . . is a discretionary governmental function of the municipality as
opposed to a ministerial, proprietary, or administratively routine function.”).
Therefore, regardless of whether Defendant Locke was hired negligently, the
City has sovereign immunity as to that decision unless some other waiver
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applies. Weaver v. City of Statesboro, 653 S.E.2d 765, 768 (Ga. Ct. App.
2007).
Georgia law provides for another waiver of sovereign immunity in
subsection (a) of O.C.G.A. § 36-33-1, which allows for waiver of municipal
sovereign immunity “by the purchase of liability insurance if the ‘policy of
insurance issued covers an occurrence for which the defense of sovereign
immunity is available, and then only to the extent of the limits of such
insurance policy.’” CSX Transp., Inc. v. City of Garden City, 588 S.E.2d 688,
690 (Ga. 2003) (quoting O.C.G.A. § 36-33-1(a)). Plaintiff attempts to invoke
this exception in her Complaint by alleging that “[a]ll Defendants named herein
are covered under policies of insurance for the negligent acts complained of
herein.” (Compl., Dkt [1-1] ¶ 77.) This is a factual statement that must be
taken as true in considering a motion to dismiss. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 556 (2007) (“[A] well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of those facts is improbable, and ‘that a
recovery is very remote and unlikely.’” (quoting Scheuer v. Rhodes, 416 U.S.
232, 236 (1974))). Therefore, at this stage, the Court finds that Plaintiff has
plead sufficient facts to support a theory that the City waived its sovereign
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immunity to the extent of any insurance policy covering the negligent acts of
its officers. Accordingly, Defendants’ Motion to Dismiss Plaintiff’s claims
against the City of Atlanta for breach of ministerial duties is DENIED, but
only so far as any insurance policy covering the negligent acts of the City of
Atlanta’s police officers waives the City’s sovereign immunity.
C.

Claims against Individual Defendants

To the extent that Plaintiff asserts liability against the individual
Defendants in their official capacities, these claims are tantamount to a claim
against the City and are therefore governed by the analysis for municipal
liability. See, e.g., Kentucky v. Graham, 473 U.S. 159, 165, 166 n.11 (1985)
(reasoning that because “[o]fficial capacity suits . . . generally represent only
another way of pleading an action against an entity of which an officer is an
agent,” suits against government officials in their official capacities should be
treated as suits against the government, itself) (internal quotation and citation
omitted). Consequently, for the reasons set forth in Part II.B.1, supra,
Plaintiff’s constitutional and state-law negligence claims against Defendants
Locke and Turner in their official capacity must be DISMISSED.
In addition, Plaintiff asserts claims against Defendants Locke and Turner
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in their individual capacity. In particular, Plaintiff alleges violations of both 42
U.S.C. § 1983 and state law. The Court considers each of those claims as
alleged against each individual Defendant.
1.

Section 1983
a.

Officer Turner

It is well settled in this Circuit that “supervisory officials are not liable
under [Section] 1983 for the unconstitutional acts of their subordinates on the
basis of respondeat superior or vicarious liability.” Keith v. DeKalb Cty., 749
F.3d 1034,1047 (11th Cir. 2014) (quoting Cottone v. Jenne, 326 F.3d 1352,
1360 (11th Cir. 2003)). There are no allegations that Chief Turner participated
personally in the immediate events leading up to Mr. Williams’s death, nor that
he was present at the time in question. Rather, Plaintiff bases her Section 1983
claim against Chief Turner on theories of deliberately indifferent hiring,
training, supervision, and discipline of Officer Locke. However, for the
reasons stated in Part II.B.1, supra, those claims as alleged in the Complaint
fail as a matter of law. Thus, without allegations of Chief Turner’s personal
involvement in the purported constitutional violation, Plaintiff cannot sustain
her Section 1983 claims against Chief Turner in his individual capacity. Those
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claims are, therefore, DISMISSED.
b.

Officer Locke

Defendants argue Officer Locke is entitled to qualified immunity on
Plaintiff’s Section 1983 individual capacity claims. “Qualified immunity offers
complete protection for individual public officials performing discretionary
functions ‘insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.’”
Sherrod v. Johnson, 667 F.3d 1359, 1363 (11th Cir. 2012) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). To claim qualified immunity, a
defendant must first show he was performing a discretionary function. Moreno
v. Turner, 572 F. App’x 852, 855 (11th Cir. 2014). “Once discretionary
authority is established, the burden then shifts to the plaintiff to show that
qualified immunity should not apply. Edwards v. Shanley, 666 F.3d 1289,
1294 (11th Cir. 2012) (quoting Lewis v. City of W. Palm Beach, 561 F.3d
1288, 1291 (11th Cir. 2009). A plaintiff demonstrates that qualified immunity
does not apply by showing: “(1) the defendant violated a constitutional right,
and (2) the right was clearly established at the time of the alleged violation.”
Moreno, 572 F. App’x at 855.
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As a threshold matter, the Court concludes Officer Locke was acting
pursuant to his discretionary authority as an Atlanta Police Officer when the
events at issue occurred. See, e.g., Kesinger v. Herrington, 381 F.3d 1243,
1248 (11th Cir. 2004) (officer’s use of deadly force in altercation with
defendant was clearly within the scope of his discretionary authority). Thus,
there are two remaining inquiries: whether Plaintiff has alleged sufficient facts
in her Complaint to illustrate a violation of a constitutional right and, if so,
whether that right was clearly established at the time in question.
The court concludes that Plaintiff has alleged sufficient facts to show a
constitutional violation on the part of Officer Locke. “The Fourth
Amendment’s freedom from unreasonable searches and seizures encompasses
the right to be free from the use of excessive force in the course of an
investigatory stop, or other ‘seizure’ of the person.” Id. (citing Graham v.
Connor, 490 U.S. 386 (1989) and Tennessee v. Garner, 471 U.S. 1 (1985)).
The question is an objective one. The Court must ask whether the officer's
conduct is objectively reasonable in light of the facts and circumstances
confronting him, regardless of underlying intent or motive. Id.; Lee v. Ferraro,
284 F.3d 1188, 1197 (11th Cir. 2002) (“[T]o determine whether the amount of
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force used by a police officer was proper, a court must ask whether a
reasonable officer would believe that this level of force is necessary in the
situation at hand.”) (internal quotation marks omitted). This means the
officer’s conduct “must be judged from the perspective of a reasonable officer
on the scene, rather than with the 20/20 vision of hindsight.” Id.
Applying this standard at the motion to dismiss stage, the Court finds
that Plaintiff has set forth facts sufficient to establish that Officer Locke’s fatal
shooting was objectively unreasonable under the circumstances. According to
the facts in the Complaint, when Officer Locke saw Mr. Williams, Mr.
Williams was unarmed, peaceably walking the streets of his neighborhood.
(Compl., Dkt. [1-1] ¶ 40.) Officer Locke did not have a warrant for Mr.
Williams’s arrest. (Id.) He had only a suspicion that Mr. Williams was
involved in the initial disturbance at 150 Adair Avenue based on a physical
description he had received. (Id. ¶ 10.) He also knew Mr. Williams suffered
from dementia and hearing impairment. (Id.) And though Officer Locke had
the means to alert Mr. Williams to his presence and initiate questioning, he did
not do so. Officer Locke did not use the lights or sirens on his police car; nor
did he identify himself as a police officer. (Id. ¶¶ 17-18.) Instead, he rapidly
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approached Mr. Williams, brandishing his firearm. (Id. ¶¶ 22-23.) This action
startled Mr. Williams. However, Mr. Williams did not approach Officer Locke
or attempt to flee. Accordingly, nothing indicated that Mr. Williams was
violent, armed, evasive, or uncooperative. Nevertheless, Officer Locke chose
to employ deadly force against him. (Id. at 26-27, 46.) Such a decision, given
the circumstances, was objectively unreasonable. Accordingly, based on the
facts alleged in her Complaint, Plaintiff has established that a constitutional
right was violated.
That constitutional right was also clearly established. “The relevant,
dispositive inquiry in determining whether a right is clearly established is
whether it would be clear to a reasonable officer that his conduct was unlawful
in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001).
“[T]he salient question . . . is whether the state of the law . . . gave [the officer]
fair warning that [his] alleged treatment of [the suspect] was unconstitutional.”
Vinyard v. Wilson, 311 F.3d 1340, 1350 (11th Cir. 2002) (quoting Hope v.
Pelzer, 536 U.S. 730, (2002)) (second alteration in original). If the federal
statute or constitutional provision is so clear, and the conduct is so bad,
qualified immunity may be precluded even in the total absence of case law. Id.
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That is the case here. It is clearly a constitutional violation to use deadly
force against a potential suspect who does not pose a threat to the investigating
officer or to anyone else, and was not attempting to flee or resist arrest. Cf.
Scott v. Harris, 550 U.S. 372, 395 (2007) (“Where the officer has probable
cause to believe that the suspect poses a threat of serious physical harm, either
to the officer or to others, it is not constitutionally unreasonable to prevent
escape by using deadly force.” (quoting Garner, 471 U.S., at 11–12)).
Therefore, based on the Complaint, the Court concludes that Plaintiff has
sufficiently alleged not only that Officer Locke violated Mr. Williams’s
constitutional rights, but also that those rights were clearly established. For
these reasons, the Court concludes that Officer Locke is not entitled to
qualified immunity at this juncture in the case and, as a consequence,
Defendants’ Motion to Dismiss Plaintiff’s Section 1983 claims against Officer
Locke in his individual capacity must be DENIED.7
2.

State Law Claims

7

Of course, at this stage, the Court may consider only the facts in the
Complaint, viewed in the light most favorable to Plaintiff. The Court recognizes that
Defendants may be able to establish additional facts not alleged in the Complaint that
would entitle Officer Locke to a grant of qualified immunity at the summary judgment
stage. The Court’s denial of qualified immunity is, therefore, without prejudice.
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Plaintiff alleges Officer Locke is liable to both herself and her husband’s
estate under Georgia law for assault, battery, and wrongful death. (Compl., Dkt
[1-1], Counts IV, V, VII.) Defendants respond that any state-law claims
against Officer Locke are barred by official immunity. (Mot. to Dismiss, Dkt.
[3] at 19.)
As an initial matter, the Court notes that in Count VII of her Complaint,
Plaintiff also alleges state-law negligence claims against Officer Locke, as well
as Chief Turner under a theory of respondeat superior. However, the
negligence Plaintiff alleges is failure to comply with the rules and regulations
of Georgia’s POST Act. Because the Georgia Court of Appeals has concluded
that there exists no private cause of action for POST Act violations (as
discussed in Part B.1, supra), Count VII is due to be DISMISSED.
Additionally, the Court only considers state-law claims against Officer Locke.
Though Plaintiff alleges in Count VII that Chief Turner is “vicariously liable
under Georgia law for the acts and omission committed by police officers
working under his command,” for the reasons stated above, that count is due to
be dismissed (Compl., Dkt [1-1] at ¶ 82.)
Under Georgia law, state and local officials may be liable for their
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discretionary acts only “if they act with actual malice or with actual intent to
cause injury.” See GA. CONST. art. I, § II, ¶ IX(d); Gilbert v. Richardson, 452
S.E.2d 476, 483 (Ga. 1994). “[I]n the context of official immunity, actual
malice means a deliberate intention to do a wrongful act.” Adams v.
Hazelwood, 520 S.E.2d 896, 898 (Ga. 1999). Defendants insist that Plaintiff
has failed to show “that Defendant Locke acted with actual malice under the
instant facts (i.e., where Defendant Locke was forced to defend himself against
Mr. Williams’ violent attack).” (Defs.’ Reply, Dkt [9] at 8.) As those are not
the facts alleged in the Complaint, that argument cannot serve as a basis for
dismissal.
The Complaint alleges that Officer Locke encountered Mr. Williams
walking peaceably along a public road. There is no indication that Mr.
Williams was hostile or posed a threat in any way. Instead, the facts alleged in
the Complaint suggest that Officer Locke approached Mr. Williams
unannounced with his weapon drawn and, though Mr. Williams never
advanced toward Officer Locke nor attempted to flee, Officer Locke shot him
multiple times. As alleged, these facts support a plausible inference of actual
malice. To the extent Defendants suggest that Plaintiff’s factual allegations are
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implausible, the Court may not dismiss a complaint “simply because the
defendant (or the court) believes that the plaintiff will fail to find evidentiary
support for [her] allegations.” Roma Outdoor Creations, Inc. v. City of
Cumming, 558 F. Supp. 2d 1283, 1285 (N.D. Ga. 2008). Accordingly,
Defendants’ Motion to Dismiss Plaintiff’s state law claims against Officer
Locke in his individual capacity is DENIED.
D.

Attorneys’ Fees

Plaintiff alleges that she is entitled to attorneys’ fees under 42 U.S.C.
§ 1988 and O.C.G.A. § 13-6-11 because “Defendants have been stubbornly
litigious and have caused Plaintiff unnecessary trouble and expense.” (Compl.,
Dkt. [1-1] ¶ 84.) Defendants move to dismiss that claim. Because several of
Plaintiff’s substantive causes of action remain in this litigation, Defendants’
Motion to Dismiss Plaintiff’s claim for attorney’s fees is DENIED. See, e.g.,
Connell v. Houser, 375 S.E.2d 136, 139 (Ga. Ct. App. 1988) (finding that an
attorneys’ fee award under O.C.G.A. § 13-6-11 is predicated on finding a
violation of the other elements of damages).
Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss Plaintiff’s
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Complaint is GRANTED in part and DENIED in part. In sum, Count III is
DISMISSED; Count VI is DISMISSED, except as alleged against the City of
Atlanta and then only to the extent of any insurance policy covering the
purported acts of the City’s police officers; and Count VII is DISMISSED.
Furthermore, all claims alleged against the Atlanta Police Department are
DISMISSED. In addition, as no claims remain against Chief George Turner, he
is hereby DISMISSED from this lawsuit.
SO ORDERED, this 30th day of March, 2016.

________________________________
RICHARD W. STORY
United States District Judge

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