Walker v. Dean et al
Filing
21
ORDER denying as moot 6 , 8 and 10 Defendants' Motion to Dismiss and granting 19 Defendants' Motion to Dismiss Plaintiff's Federal Claims. IT IS FURTHER ORDERED that this action is REMANDED to the Superior Court of Clayton County, Georgia. Signed by Judge William S. Duffey, Jr. on 6/13/2016. (bdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JOHN T. WALKER, JR.,
Plaintiff,
v.
1:15-cv-3602-WSD
CHIQUITI A. DEAN, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on Defendants Chiquiti A. Dean, Ivrekia
Stanley, and Matthew Lawrimore’s (“Defendants”) Motion to Dismiss Plaintiff’s
Federal Claims [19].
I.
BACKGROUND
A.
Facts
On February 3, 2011, Plaintiff John T. Walker, Jr. (“Plaintiff”) pled guilty to
felony crimes and was sentenced to five years of probation. (Compl. [1.1] ¶ 12).
On or about September 10, 2013, Plaintiff alleges a petition for early termination
of Plaintiff’s probation “was submitted by the Morrow Probation Office to the
Clayton County Superior Court . . . .” (Id. ¶ 18). In September 2013, an order
granting his early termination was executed by the Clayton County Superior Court.
(Id. ¶ 19).
Plaintiff alleges that the order was “picked up from the chambers of Judge
Simmons and returned to the Morrow Probation Office, by probation Officer
Andrew Scott . . . prior to it being filed with the clerk of the Superior Court.” (Id.
¶ 20). Plaintiff claims the “order was thereupon later intercepted/voided or
destroyed by Defendant CHIQUITI A. DEAN, without the knowledge or consent
of the Clayton County Superior Court, prior to filing with the clerk of the Superior
Court.” (Id. ¶ 21). Plaintiff alleges Ms. Dean was the Chief Probation Officer
employed in the Morrow Probation Office. (Id. ¶ 2). Plaintiff alleges that it was a
routine practice of the Morrow Probation Office to destroy signed orders that had
not yet been file-stamped if the orders were erroneous or needed corrections. (Id.
¶¶ 29, 30). He alleges Ms. Dean falsely testified that she destroyed an early
termination petition prepared by the probation office before it was submitted to the
judge. (Id. ¶ 39). Ms. Dean testified that Plaintiff was not eligible for early
termination of probation because his was a “high profile” case. (Id. ¶ 40).
Plaintiff alleges that, on May 14, 2014, he was wrongfully indicted and
arrested based on new charges of tax evasion and filing false documents. (Id.
¶ 47). The charges are currently pending. (Id. ¶ 48). Plaintiff alleges Ms. Dean
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“ordered” Plaintiff to appear at the Morrow Probation Office to present evidence of
his proof of employment and proof of earnings. (Id. ¶ 50). Ms. Dean then sent the
documentation to the District Attorney’s office, which led to Plaintiff’s arrest for
tax evasion and filing false documents.
(Id. ¶¶ 56, 57).
Plaintiff alleges that, based on the tax evasion charges, Defendant
Lawrimore, a supervising probation officer, issued an arrest warrant for a probation
revocation. (Id. ¶¶ 60, 61). On June 11, 2014, Plaintiff was arrested and
incarcerated in the Clayton County jail. (Id. ¶ 60). He was released on
July 1, 2014, “as a result of it being made known to the judge that Plaintiff [] was
not still subject to probation.” (Id.). Plaintiff alleges that the arrest warrant was
issued without probable cause because he no longer was on probation, and the
warrant was facially invalid because it was not supported by, and failed to contain,
an oath or affirmation. (Id. ¶¶ 61, 62).
Plaintiff alleges that, on June 26, 2014, Defendant Stanley, a supervisor in
the Morrow Probation Office, prepared and filed a violation of probation petition
maliciously and without probable cause, and that she sent an e-mail to the District
Attorney’s office concerning the revocation hearing. (Id. ¶¶ 63-66). He alleges
Defendants Lawrimore and Stanley had access to the SCRIBE data entry system
and that they could have determined Plaintiff’s probation was terminated if they
3
had reviewed the SCRIBE system before they issued the arrest warrant and
probation revocation petition. (Id. ¶ 150).
B.
Procedural History
On September 8, 2015, Plaintiff filed his Complaint in the Superior Court of
Clayton County, Georgia. In his Complaint, Plaintiff asserts against Defendants
Dean, Stanley, and Lawrimore the following federal claims: (i) a claim under 42
U.S.C. § 1983 (“Section 1983”) based on false arrest in violation of the Fourth
Amendment (Count Four); (ii) a Section 1983 claim based on malicious
prosecution in violation of the Fourth Amendment (Count Five); and (iii) a claim
under 42 U.S.C. §1985(3) alleging a conspiracy to interfere with civil rights in
violation of the Fourteenth Amendment (Count Six). Plaintiff seeks attorneys’ fees
from Defendants in their individual capacities under 42 U.S.C. § 1988 (Count
Nine). Plaintiff asserts state law claims for (i) failure to perform official
ministerial duty required by law, O.C.G.A. § 50-21-24 (Count One);
(ii) misfeasance and malfeasance in office, O.C.G.A. § 50-21-24 (Count Two);
(iii) negligence per se – tampering with evidence, O.C.G.A. § 51-1-6;
(iv) declaratory judgment and injunctive relief (Count Seven); and (v) attorneys’
fees and expenses of litigation, O.C.G.A. § 13-6-11 (Count Eight).
4
On October 9, 2015, Defendants filed their Notice of Removal [1] in this
Court. On October 15, 2015, Plaintiff filed his Motion to Amend Complaint [3],
seeking to amend his Complaint to remove all federal claims. The same day,
Plaintiff filed his Motion to Remand to State Court [7]. Also on October 15, 2015,
Defendants filed several motions to dismiss Plaintiff’s state law claims [6], [8],
[10].
On November 12, 2015, Plaintiff filed his Notice of Filing Withdrawal of
Notice of Amended Complaint [15]. Plaintiff’s original Complaint, including his
federal claims, thus remained the operative complaint.
On May 3, 2016, Defendants filed their Motion to Dismiss. In it, they claim
that, because all of Defendants’ actions were associated with Plaintiff’s probation,
Defendants are entitled to absolute immunity from Plaintiff’s claims. (Br. in Supp.
of Mot. to Dismiss [19.1] (“Br.”) at 5). Defendants also argue that Plaintiff fails to
state a claim against Defendants for false arrest, malicious prosecution and
conspiracy to violate Plaintiff’s civil rights. (Id.). They claim they are entitled to
qualified immunity from suit. (Id.).
Plaintiff did not respond to Defendants’ Motion to Dismiss, and it is deemed
unopposed. L.R. 7.1(B), NDGa.
5
II.
DISCUSSION
A.
Legal Standard
On a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure, the Court must “assume that the factual allegations in the
complaint are true and give the plaintiff[] the benefit of reasonable factual
inferences.” Wooten v. Quicken Loans, Inc., 626 F.3d 1187, 1196 (11th Cir.
2010). Although reasonable inferences are made in the plaintiff’s favor,
“‘unwarranted deductions of fact’ are not admitted as true.” Aldana v. Del Monte
Fresh Produce, N.A., 416 F.3d 1242, 1248 (11th Cir. 2005) (quoting S. Fla. Water
Mgmt. Dist. v. Montalvo, 84 F.3d 402, 408 n.10 (11th Cir. 1996)). Similarly, the
Court is not required to accept conclusory allegations and legal conclusions as true.
See Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)
(construing Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007)).
“To survive 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.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Mere “labels and
conclusions” are insufficient. Twombly, 550 U.S. at 555. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
6
the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). This requires more than
the “mere possibility of misconduct.” Am. Dental, 605 F.3d at 1290 (quoting
Iqbal, 556 U.S. at 679). The well-pled allegations must “nudge[] their claims
across the line from conceivable to plausible.” Id. at 1289 (quoting Twombly, 550
U.S. at 570).
B.
Analysis
1.
Malicious Prosecution
Defendants argue that Plaintiff fails to state a claim for malicious
prosecution under 42 U.S.C. § 1983. Malicious prosecution is a violation of the
Fourth Amendment and is a viable constitutional tort cognizable under Section
1983. Wood v. Kesler, 323 F.3d 872, 881 (11th Cir. 2003). To establish a federal
malicious prosecution claim under Section 1983, a plaintiff must prove a violation
of his Fourth Amendment right to be free from unreasonable seizures in addition to
the elements of the common law tort of malicious prosecution. Id. In Wood, the
Eleventh Circuit stated that, looking to both federal law and Georgia law, the
constituent elements of the common law tort of malicious prosecution for Section
1983 purposes include: (1) a criminal prosecution instituted or continued by the
present defendant; (2) with malice and without probable cause; (3) that terminated
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in the plaintiff’s favor; and (4) caused damage to the plaintiff accused. Id. at 882.
Plaintiff’s malicious prosecution claim is based on Defendant Lawrimore
procuring an arrest warrant for a probation revocation. (Id. ¶¶ 60, 61, 120).
Defendants claim that a probation revocation is not a prosecution for a criminal
offense for purposes of a Section 1983 claim for malicious prosecution. (Br. at
12). The Court agrees. “[N]o court has held that a probation violation is
tantamount to a criminal prosecution.” Zabresky v. Von Schmeling, Civil Action
No. 3:12-0020, 2014 WL 414248, at *5 (M.D. Pa. Feb. 4, 2014) (granting
summary judgment on malicious prosecution claim). “Probation revocation, like
parole revocation, is not a stage of a criminal prosecution, but does result in a loss
of liberty.” Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973); see also Morgan
v. State, 706 S.E.2d 588, 589-90 (Ga. Ct. App. 2011) (“The general and accepted
rule in the state and federal courts is that a proceeding to revoke a probated
sentence of one convicted of a criminal offense is not a criminal proceeding.
Indeed, a criminal prosecution and a probation revocation proceeding based on the
same occurrence actually have nothing to do with each other.” (internal quotation
marks and footnotes omitted)). Thus, a petition for probation revocation is not a
criminal prosecution for purposes of a Section 1983 claim for malicious
8
prosecution, and Defendants’ Motion to Dismiss Plaintiff’s malicious prosecution
claim (Count Five) is granted.1
2.
Section 1985(3) Conspiracy
Defendants next move to dismiss Plaintiff’s Section 1985(3) claim of
conspiracy to interfere with civil rights. To state a claim for relief under Section
1985(3), a plaintiff must allege sufficient facts reflecting:
(1) a conspiracy, (2) for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal protection of the
laws, or of equal privileges and immunities under the laws; and (3) an
act in furtherance of the conspiracy, (4) whereby a person is either
injured in his person or property or deprived of any right or privilege
of a citizen of the United States.
Jimenez v. Wizel, ––– F. App’x –––, 2016 WL 626028, at *5-6 (11th Cir. Feb. 17,
2016) (quoting Childree v. UAP/GA CHEM, Inc., 92 F.3d 1140, 1146-47 (11th
Cir. 1996). “For purposes of the second element, the plaintiff must properly plead
an allegation that ‘some racial or perhaps otherwise class-based, invidiously
1
To the extent Plaintiff seeks to assert a malicious prosecution claim on the
basis of his prosecution for tax evasion and filing false documents, his claim fails
because he was indicted by a grand jury, (Compl. ¶ 47). A grand jury indictment
constitutes prima facie evidence that probable cause existed for the prosecution.
Agbonghae v. Circuit City Stores, Inc., 448 S.E.2d 484, 486 (Ga. Ct. App. 1994).
Plaintiff did not respond to the Motion to Dismiss, and he thus fails to show
“specific facts tending to show that probable cause did not exist for his arrest . . . .”
Id.
9
discriminatory animus lay behind the conspirators’ action.’” Id. (alterations
omitted) (quoting Childree, 92 F.3d at 1147).
Plaintiff’s Complaint fails to allege that he was subject to race
discrimination or that he was a member of some other protected class. Plaintiff
alleges only that Defendants “created classifications of probationers based upon
whether the probationer’s case had received media attention or not.” (Compl.
¶ 141). Plaintiff does not provide, and the Court is unable to find, any authority
that this purported class of high profile probationers is a protected class for
purposes of the second element of a Section 1985(3) conspiracy claim.
Defendants’ motion to dismiss Plaintiff’s Section 1985(3) claim (Count Six) is
granted.
3.
False Arrest
Defendants next move to dismiss Plaintiff’s Section 1983 claim for false
arrest. A warrantless arrest without probable cause violates the Constitution and
provides a basis for a Section 1983 claim. Kingsland v. City of Miami, 382 F.3d
1220, 1226 (11th Cir. 2004). The existence of probable cause at the time of arrest,
however, constitutes an absolute bar to a Section 1983 action for false arrest. Id.
Probable cause to arrest exists when an arrest is objectively reasonable based on
the totality of the circumstances. Id. “This standard is met when the facts and
10
circumstances within the officer’s knowledge, of which he or she has reasonably
trustworthy information, would cause a prudent person to believe, under the
circumstances shown, that the suspect has committed, is committing, or is about to
commit an offense.” Id. (internal quotation marks omitted).
It is, at best, doubtful that Plaintiff’s Complaint states a claim for false arrest
under Section 1983. Plaintiff does not allege that the arresting officer lacked
probable cause to arrest him. Plaintiff does not allege who arrested him, or under
what circumstances the arrest took place. Plaintiff’s Complaint contains only the
bare assertion that the warrant for his arrest “was issued without probable cause
because the Plaintiff was no longer on probation, therefore, there was no cause to
arrest him for a probation revocation.” (Compl. ¶ 61). This allegation does not
address whether the arresting officer lacked probable cause to arrest Plaintiff.
Further, if “the facts supporting an arrest are put before an intermediate such as a
magistrate or a grand jury, the intermediate’s decision breaks the causal chain and
insulates the reporting party.” Williams v. City of Albany, 936 F.2d 1256, 1260
(11th Cir. 1991). When an arrest is made under authority of a properly issued
11
warrant or indictment, the arrest is not a false arrest.2 Gresham v. Dell, 630 F.
Supp. 1135, 1136 (N.D. Ga. 1986) (“Even an officer who acted with malice in
procuring a warrant or indictment will not be liable if the facts supporting the
warrant or indictment are put before an impartial intermediary such as a magistrate
or grand jury . . . .”).3 Here, the arrest warrant was signed by Judge Simmons, thus
breaking the causal chain and insulating Defendants from liability for false arrest.
Even if Plaintiff’s Complaint stated a claim of false arrest under Section
1983, the claim is required to be dismissed because Defendants are entitled to
qualified immunity. “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
2
As explained below in further detail, Plaintiff’s allegation that the arrest
warrant was facially defective is directly contradicted by the warrant itself, which
is attached to Plaintiff’s Complaint.
3
Plaintiff also fails to allege that any of the Defendants actually participated
in Plaintiff’s arrest. There is some authority that non-arresting officers are not
liable under Section 1983 for false arrest. See Sappington v. Bartee, 195 F.3d 234,
237 (5th Cir. 1999) (claims for false arrest under Section 1983 only lie against
officers who participate in an arrest); see also Galarnyk v. Fraser, Civil No. 083351, 2011 WL 3678433, at *5 (D. Minn. Aug. 22, 2011) (“Claims of false arrest
against non-arresting officers generally fail.”); but see Shattuck v. Town of
Stratford, 233 F. Supp. 301, 313-14 (D. Conn. 2002) (claims for Section 1983 false
arrest can be brought against individuals other than the arresting officer).
12
(11th Cir. 2012) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “‘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)). To meet this burden, a plaintiff must establish that “the
officer’s conduct amounted to a constitutional violation” and “the right violated
was ‘clearly established’ at the time of the violation.” City of W. Palm Beach, 561
F.3d at 1291. This two-step 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)).
The clearly established law must provide a defendant with “fair warning”
that defendant’s conduct deprived plaintiff of a constitutional right. Hope
v. Pelzer, 536 U.S. 730, 739-41 (2002). A plaintiff “can demonstrate that the
contours of the right were clearly established in several ways.” Terrell v. Smith,
668 F.3d 1244, 1255 (11th Cir. 2012). First, a plaintiff can show that “a materially
similar case has already been decided.” Id. (internal quotation marks and citations
omitted). Second, a plaintiff can point to a “broader, clearly established principle
[that] should control the novel facts [of the] situation.” Id. (internal quotation
marks and citation omitted). “Finally, the conduct involved in the case may ‘so
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obviously violate[ ] th[e] constitution that prior case law is unnecessary.’” Id.
(citation omitted). “[E]xact factual identity with a previously decided case is not
required, but the unlawfulness of the conduct must be apparent from preexisting
law.” Coffin v. Brandau, 642 F.3d 999, 1013 (11th Cir. 2011).
Here, Plaintiff’s Complaint alleges that Defendants acted within the scope of
their duties and authority as probation officers employed in the Morrow Probation
office of the Georgia Department of Corrections. (See Compl. ¶¶ 2-5, 106). The
burden thus shifts to Plaintiff to show that qualified immunity should not apply.
Edwards, 666 F.3d at 1294. Plaintiff failed to respond to Defendants’ Motion to
Dismiss, and therefore has not proffered any argument to meet his burden to show
Defendants are not entitled to qualified immunity. Plaintiff’s Complaint alleges
that the arrest warrant procured by Defendant Lawrimore “was facially invalid, as
it was not supported by, and failed to contain, an oath or affirmation, as required
by the text of the Fourth Amendment.” (Compl. ¶ 62). As Defendants point out,
the arrest warrant attached to Plaintiff’s Complaint on its face states it was sworn
to by Defendant Lawrimore on May 19, 2014. ([1.2] at 80). The Complaint also
alleges that the warrant “failed to contain an affidavit of sworn facts,” and that, at
that time, “the law was clearly established . . . that a law enforcement officer must
support an application for an arrest warrant with an affidavit under oath attesting to
14
the commission of acts constituting the commission of a crime sufficient to justify
seizure of the person . . . .” (Compl. ¶¶ 108-109). The warrant, sworn to by
Lawrimore, states that, “[o]n or about 08/08/2012 the defendant committed the
new offenses of Unlawful Filing of False Documents (m) and Evasion of Income
Tax (F) . . . .” ([1.2] at 80). The contents of the arrest warrant directly contradict
the only assertions in Plaintiff’s Complaint that could support that Defendants are
not entitled to qualified immunity.4 Plaintiff fails to meet his burden to show that
Defendants are not entitled to qualified immunity, and Defendants’ Motion to
Dismiss Plaintiff’s Section 1983 false arrest claim (Count Four) is granted.5
4.
Plaintiff’s Remaining Claims
Plaintiff’s federal claims having been dismissed, the Court considers
whether to exercise supplemental jurisdiction over Plaintiff’s remaining state law
claims. Where “no basis for original federal jurisdiction presently exists, the
district court has the discretion to decline to exercise supplemental jurisdiction.”
Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cty., 402 F.3d 1092, 1123
4
The Court notes also that Plaintiff does not cite any authority to support that
it is a violation of a clearly established right to apply for an arrest warrant without
supporting the application with an affidavit.
5
Because the Court finds Plaintiff’s federal claims independently fail, the
Court declines to address whether Defendants are entitled to absolute immunity
from suit.
15
(11th Cir. 2005) (citing 28 U.S.C. § 1367(c)); see also Rowe v. City of Fort
Lauderdale, 279 F.3d 1271, 1288 (11th Cir. 2002) (whether to continue to exercise
supplemental jurisdiction is a decision that “should be and is vested in the sound
discretion of the district court”). Here, the Notice of Removal alleges that the
Court has original jurisdiction, pursuant to 28 U.S.C. § 1331, over Plaintiff’s
federal law claims. (Notice of Removal ¶ 2). Plaintiff’s federal claims have been
dismissed. The parties are not diverse, and the Court does not have any basis,
other than supplemental jurisdiction, for jurisdiction over Plaintiff’s state law
claims. The Court declines to exercise supplemental jurisdiction over Plaintiff’s
remaining state law claims. Accordingly, this action is remanded to the Superior
Court of Clayton County, Georgia.6
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Defendants Chiquiti A. Dean, Ivrekia
Stanley, and Matthew Lawrimore’s Motion to Dismiss Plaintiff’s Federal Claims
[19] is GRANTED.
6
Because the Court declines to exercise supplemental jurisdiction over
Plaintiff’s state law claims, the Court denies as moot Defendants’ motions to
dismiss Plaintiff’s state law claims [6], [8], [10].
16
IT IS FURTHER ORDERED that Defendants’ motions to dismiss
Plaintiff’s state law claims [6], [8], [10] are DENIED AS MOOT.
IT IS FURTHER ORDERED that this action is REMANDED to the
Superior Court of Clayton County, Georgia.
SO ORDERED this 13th day of June, 2016.
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