Nurse v. The City of Alpharetta et al

Filing 33

OPINION AND ORDER GRANTING 28 Motion to Dismiss. Signed by Judge Thomas W. Thrash, Jr on 2/7/18. (jkl)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
KEITHROY B. NURSE,
Plaintiff,
v.

CIVIL ACTION FILE
NO. 1:17-CV-1689-TWT

THE CITY OF ALPHARETTA, et al.,
Defendants.
OPINION AND ORDER
This is a civil rights case stemming from the alleged wrongful dismissal
of the Plaintiff from his employment as an Alpharetta police officer. It is before
the Court on the Defendants City of Alpharetta, Robert Regus, Kathy Bott,
Wesley McCall, Sandy West, and Gary George’s Motion to Dismiss [Doc. 28]. For
the following reasons, the Defendants’ Motion to Dismiss is GRANTED.
I. Background
The Plaintiff, Keithroy B. Nash,1 is a black man who was employed by the
Defendant City of Alpharetta, Georgia as a police officer for approximately

1

The case caption as filed by the Plaintiff lists the Plaintiff’s
surname as Nurse, but in the body of his Complaint his surname is Nash. No
explanation has been provided by the Plaintiff for the discrepancy, but the Court
will assume that his correct name is Nash.
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fifteen years.2 The individual Defendants serve Alpharetta in various positions:
Robert Regus is the City Administrator, Kathy Bott is the Human Resources
Manager, Gary George is the Director of Public Safety, Wesley McCall is the
Deputy Director of Public Safety, and Sandy West is a Captain on the police
force.3
On March 27, 2016, according to the Complaint, Nash and two other
police officers responded to a call for assistance in Alpharetta.4 When they
arrived at the scene, the person identified in the Amended Complaint as the
“caller” told the officers that he had been asked to give a woman a ride home,
but that the woman was so intoxicated she did not know where she lived.5 The
officers themselves asked the woman where she lived, but she was unresponsive
to the officers’ questions.6 Nash called for medical assistance, but when the
EMTs arrived, the woman refused any help.7
By this time, the woman began to respond to the officers and had become
relatively lucid.8 She informed the officers that she was staying at the

2

Compl. ¶¶ 5, 12.

3

Id. at ¶¶ 7-11.

4

Id. at ¶ 14.

5

Id. at ¶¶ 16-17.

6

Id. at ¶ 18.

7

Id. at ¶¶ 19-21.

8

Id. at ¶ 20.

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Doubletree Hotel, but the caller told the officers that he did not know where the
hotel was located.9 Nash told the caller that, because his shift was now over, he
could drive to the hotel and the caller could follow him with the woman.10
When they arrived at the Doubletree Hotel in Alpharetta, Nash and the
caller discovered that the woman was not registered at that location, but that
she was a guest at another Doubletree Hotel in Roswell, Georgia.11 The caller
refused to help the woman any further and left.12 Meanwhile, the woman was
still intoxicated and without any means of transportation.13 Because of her
condition, Nash agreed to give her a ride to her hotel on his way home.14
When Nash and the woman arrived at the Roswell Doubletree, the
woman realized that her purse, which contained her driver’s license and credit
cards, was missing.15 Because she did not have any identification, the hotel
would not allow the woman into her room on her own.16 The hotel agreed,

9

Id. at ¶¶ 23-24.

10

Id. at ¶ 25.

11

Id. at ¶ 26.

12

Id. at ¶ 27.

13

Id. at ¶ 28.

14

Id. at ¶ 29.

15

Id. at ¶ 30.

16

Id. at ¶ 31.

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however, to allow the woman to check the room for any possible identification
as long as she was accompanied by Nash and the hotel’s security officer.17
Upon entering the hotel room, the woman found a credit card she had
apparently left in the hotel room and showed it to the hotel security officer as
proof of her identity. Satisfied, the security officer left the room. Nash, on the
other hand, remained behind because the woman had questions about her
missing purse. Nash explained to the woman that she needed to file a police
report and keep a copy of it as proof that she had lost her license.18 The hotel
security officer then returned to the room to reverify the woman’s information.19
According to the Complaint, at the time the hotel security officer reappeared,
the woman was “alert, fully clothed, sitting upright, and speaking to both the
Plaintiff and the security officer.”20 Nash then left the hotel.21
Some time later, Nash was informed that he was the subject of an
Internal Affairs investigation by the Defendant West and the Alpharetta Police
Department in reference to this incident.22 Nash was informed that the woman
had accused him of sexual assault, and that a criminal investigation was being
17

Id. at ¶ 32.

18

Id. at ¶ 33.

19

Id. at ¶ 34.

20

Id. at ¶ 35.

21

Id. at ¶¶ 36-38.

22

Id. at ¶¶ 39-40.

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conducted by the Roswell Police Department.23 According to the Complaint,
Nash cooperated with the investigations, including taking a polygraph
examination, yet Nash was never informed as to the exact nature of the conduct
he was charged with.24 During the course of the investigation, West ordered
Nash to not have any contact with anyone in connection with the incidents or
investigations.25
While no criminal charges were ever filed against Nash, Alpharetta did
eventually charge him with numerous violations of City policy, including
allowing the woman to ride in the front seat of his car and failing to inform his
supervisor that he was still in service after going off-duty.26 As a result of these
violations, Nash was fired by the Alpharetta Police Department.27 After he was
fired, Alpharetta then filed a report with the Georgia Peace Officers Standards
and Training Council, which Nash claims contained false and intentionally
misleading information regarding Nash and his conduct during the incident.28

23

Id. at ¶ 41.

24

Id. at ¶¶ 42-43.

25

Id. at ¶ 44.

26

Id. at ¶¶ 46-48, 50-51, 53.

27

Id. at ¶ 62.

28

Id. at ¶¶ 67-68.

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However, Nash’s certification as a police officer was revoked by the Council as
a result of the report.29
Nash eventually filed a charge of racial discrimination with the Equal
Employment Opportunity Commission, and received a Right to Sue letter from
the EEOC.30 He then filed this action on May 10, 2017. In his Complaint, Nash
alleges that his termination for the alleged policy violations was against the
City’s policy of “progressive discipline.”31 Nash claims that, even assuming the
policy violations occurred (which he disputes), he should have been subjected to
a less severe sanction than termination.32 Nash further claims that he was
subjected to more severe punishment than white police officers, and that the
individual Defendants knew and approved of this disparity in discipline.33
As a result, Nash alleges three counts against the Defendants. In Count
I, he alleges violations of his constitutional right to equal protection against all
of the Defendants.34 In Count II, he alleges violations of his right to due process
against George, West, and the City of Alpharetta.35 And in Count III, he claims

29

Id. at ¶ 69.

30

Id. at ¶ 70.

31

Id. at ¶ 61.

32

Id. at ¶ 62.

33

Id. at ¶¶ 63-64.

34

Id. at ¶¶ 72-84.

35

Id. at ¶¶ 85-92.

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he was subjected to discriminatory treatment and a hostile work environment
by all of the Defendants.36 The Defendants now move to dismiss the Complaint
under Rules 8(a), 12(b)(2), 12(b)(6), and 41(b) of the Federal Rules of Civil
Procedure.
II. Legal Standard
A complaint should be dismissed under Rule 12(b)(6) only where it
appears that the facts alleged fail to state a “plausible” claim for relief.37 A
complaint may survive a motion to dismiss for failure to state a claim, however,
even if it is “improbable” that a plaintiff would be able to prove those facts; even
if the possibility of recovery is extremely “remote and unlikely.”38 In ruling on
a motion to dismiss, the court must accept the facts pleaded in the complaint as
true and construe them in the light most favorable to the plaintiff.39 Generally,
notice pleading is all that is required for a valid complaint.40 Under notice

36

Id. at ¶¶ 93-108.

37

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); Fed. R. Civ. P.

12(b)(6).
38

Bell Atlantic v. Twombly, 550 U.S. 544, 556 (2007).

See Quality Foods de Centro America, S.A. v. Latin American
Agribusiness Dev. Corp., S.A., 711 F.2d 989, 994-95 (11th Cir. 1983); see also
Sanjuan v. American Bd. of Psychiatry & Neurology, Inc., 40 F.3d 247, 251 (7th
39

Cir. 1994) (noting that at the pleading stage, the plaintiff “receives the benefit
of imagination”).
40

See Lombard’s, Inc. v. Prince Mfg., Inc., 753 F.2d 974, 975 (11th

Cir. 1985), cert. denied, 474 U.S. 1082 (1986).
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pleading, the plaintiff need only give the defendant fair notice of the plaintiff’s
claim and the grounds upon which it rests.41
When a party has moved to dismiss a complaint for lack of personal
jurisdiction, and “no evidentiary hearing is held, the plaintiff bears the burden
of establishing a prima facie case of jurisdiction over the movant, nonresident
defendant.”42 The plaintiff establishes a prima facie case by presenting “enough
evidence to withstand a motion for directed verdict.”43 A party presents enough
evidence to withstand a motion for directed verdict by putting forth “substantial
evidence . . . of such quality and weight that reasonable and fair-minded persons
in the exercise of impartial judgment might reach different conclusions . . .”44
The facts presented in the plaintiff’s complaint are taken as true to the extent
they are uncontroverted.45 If, however, the defendant submits affidavits
challenging the allegations in the complaint, the burden shifts back to the
plaintiff to produce evidence supporting jurisdiction.46 If the plaintiff’s complaint
41

U.S. at 555).

See Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Twombly, 550

42

Morris v. SSE, Inc., 843 F.2d 489, 492 (11th Cir. 1988).

43

Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990).

44

Walker v. NationsBank of Florida, 53 F.3d 1548, 1555 (11th Cir.

45

Foxworthy v. Custom Tees, Inc., 879 F. Supp. 1200, 1207 n.10 (N.D.

1995).
Ga. 1995).

Diamond Crystal Brands, Inc. v. Food Movers Intern., Inc., 593
F.3d 1249, 1257 (11th Cir. 2010); Meier v. Sun Int’l Hotels, Ltd., 288 F.3d 1264,
46

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and supporting evidence conflict with the defendant’s affidavits, the court must
construe all reasonable inferences in favor of the plaintiff.47
III. Discussion
A. Personal Jurisdiction over the Defendant George
The Defendant George first moves to dismiss the claims against him for
lack of personal jurisdiction. The Amended Complaint states that George is
currently Alpharetta’s Director of Public Safety and may be served through the
City Administrator’s office.48 However, George has submitted a declaration
stating that he retired and moved to Missouri prior to this lawsuit being filed.49
Nash has not challenged George’s declaration. Thus, the question is whether
this Court has personal jurisdiction over George, a nonresident defendant.
“Federal courts ordinarily follow state law in determining the bounds of
their jurisdiction over persons.”50 This means that federal courts generally follow
a two step process for determining whether they have personal jurisdiction over
nonresident defendants: (1) whether personal jurisdiction exists over the

1269 (11th Cir. 2002).
47

Madara, 916 F.2d at 1514.

48

Amended Compl. ¶ 11.

49

George Decl., Defs.’ Mot. to Dismiss, Ex. 1 [Doc. 28-1].

50

Daimler AG v. Bauman, 134 S. Ct. 746, 753, 187 L. Ed. 2d 624

(2014).

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nonresident defendant under the forum state’s long-arm statute and (2) if so,
whether that exercise of jurisdiction would violate the Due Process Clause.51
Unlike many other states which have enacted long-arm statutes that
extend as far as the Constitution allows, Georgia has taken a different approach.
Georgia’s long-arm statute “imposes independent obligations that a plaintiff
must establish for the exercise of personal jurisdiction that are distinct from the
demands of procedural due process.”52 This means that sometimes Georgia’s
long-arm statute extends beyond, and is therefore limited by, procedural due
process, while in other situations it is more restrictive.53 In particular, the
statute provides in relevant part for personal jurisdiction where a defendant:
(1) Transacts any business within this state;
(2) Commits a tortious act or omission within this state, except as
to a cause of action for defamation of character arising from the
act;
(3) Commits a tortious injury in this state caused by an act
omission outside this state if the tort-feasor regularly does
solicits business, or engages in any other persistent course
conduct, or derives substantial revenue from goods used
consumed or services rendered in this state; [or]

51

Cir. 2013).
52

Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1350 (11th
Diamond Crystal Brands, Inc. v. Food Movers Int’l, Inc., 593 F.3d

1249, 1259 (11th Cir. 2010).
53

or
or
of
or

Id. at 1262.

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(4) Owns, uses, or possesses any real property situated within this
state . . . .54
as long as the plaintiff’s cause of action “arises out of” that conduct.55 As Nash
has not alleged any torts, nor has he alleged claims related to any in-state
property owned by George, the only remaining question is whether George
transacted any “business” within Georgia.
Georgia courts have interpreted “transacts any business” fairly broadly,
meaning that as long as the “nonresident defendant has purposefully done some
act or consummated some transaction in [Georgia],” Georgia courts will have
personal jurisdiction.56 In this case, George was previously a Georgia domiciliary, was employed by a Georgia municipality, and the alleged causes of action
arise from his conduct in Georgia. Thus, George has transacted business in
Georgia under the definition of the state long-arm statute. The Court also finds
for similar reasons that George has sufficient minimum contacts with Georgia
to satisfy the Due Process Clause. Consequently, George is subject to personal
jurisdiction here.

54

O.C.G.A. § 9–10–91.

55

Id. at 1264.

Aero Toy Store, LLC v. Grieves, 279 Ga. App. 515, 517 (2006). See
also Diamond Crystal, 593 F.3d at 1260 n.11 (explaining why courts should only
use the first prong of the Aero Toy Store test during the long-arm statute
56

analysis).

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B. Sufficiency of Pleading
The Defendants have also moved to dismiss the entire Complaint under
Rule 41(b) for failing to comply with a previous Order of this Court. Rule 41(b)
grants district courts the authority and discretion to dismiss complaints for
failure to comply with court orders. The Eleventh Circuit has articulated a twopart test to determine whether dismissal under Rule 41(b) is warranted. First,
“there must be both a clear record of willful conduct and a finding that lesser
sanctions are inadequate.”57 Second, courts “must consider the possibility of
alternative, lesser sanctions.”58 While the decision to dismiss under Rule 41(b)
is a matter committed to a district court’s discretion, “[d]ismissal of a case with
prejudice is considered a sanction of last resort, applicable only in extreme
circumstances.”59
In the prior Order, the Court dismissed Nash’s original Complaint for
failure to comply with the pleading requirements of Rule 8. The Court allowed
Nash to refile within thirty days, but if he did so, the Court directed him to
“specifically define the causes of action” being asserted, and “indicate which
claims are being asserted against which defendants.”60 Nash did eventually
57

Baltimore v. Jim Burke Motors, Auto., 300 F. App’x 703, 707 (11th

Cir. 2008) (quotations and citations omitted.)
58

Id.

59

Id. (quoting Goforth v. Owens, 766 F.2d 1533, 1535 (11th

Cir.1985)).
60

See September 28, 2017 Opinion and Order, at 3 [Doc. 26].

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refile, and he has made an effort in the Amended Complaint to individually list
defendants under each of his claims. He has also separated his equal protection
and due process claims into separate counts. This demonstrates a good faith
effort on Nash’s part to correct the defects in his original Complaint. Dismissal
under Rule 41(b) is, therefore, unwarranted.
That does not mean, however, that the Amended Complaint is in the
clear. The Amended Complaint must still comply with the requirements of Rule
8. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires plaintiffs to
include in their complaint “a short and plain statement of the claim showing
that the pleader is entitled to relief.”61 This means that it must “give the defendants adequate notice of the claims against them and the grounds upon which
each claim rests.”62
Counts I and II meet this standard by individually naming the Defendants and separating Nash’s equal protection and due process claims into
separately numbered counts. Count III, however, still suffers from the same
defects the Court noted in its previous Order. Namely, it states that “the
Plaintiff has been subjected to discriminatory treatment based upon his race,”
and that he “has been subjected to a hostile work environment based on racial

61

Fed. R. Civ. P. 8(a)(2).

62

Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1323

(11th Cir. 2015).

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discrimination” in violation of Title VII of the Civil Rights Act of 1964.63 Hostile
work environment and discriminatory treatment claims are two separate causes
of action under Title VII. It is not clear whether Nash is asserting one, the other,
or both of these claims. Because he has failed to provide adequate notice to the
Defendants as to which of these two claims he is asserting, Count III fails to
meet the pleading requirements of Rule 8(a).
While the normal course of action when a complaint does not comply with
Rule 8 would be to direct Nash to refile, the Court has already done that once
in this case. Nash has had an opportunity to amend his Complaint, and does not
seek to amend it again in response to the Defendants’ motion to dismiss on the
merits. As such, the Court will simply assume that Nash is attempting to assert
both Title VII claims, and will consider them as two separate counts for the
purpose of addressing the merits of the Complaint.
C. Racial Discrimination Claims
In Count I of the Amended Complaint, Nash alleges that the Defendants
violated his Fourteenth Amendment right to equal protection by treating him
differently than other white officers. “The Equal Protection Clause requires the
State to treat all persons similarly situated alike or, conversely, to avoid all
classifications that are ‘arbitrary or irrational’ and those that reflect ‘a bare . .

63

Amended Compl. ¶¶ 99, 102, 103.

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. desire to harm a politically unpopular group.’”64 In McDonnell Douglas Corp.

v. Green,65 the Supreme Court created a framework for analyzing these sorts of
claims. Under this framework, the plaintiff has the initial burden of establishing
a prima facie case of discrimination. “To establish a prima facie case of racial
discrimination on the basis of disparate treatment, the plaintiff must show: (1)
he is a member of a protected class; (2) he was subjected to an adverse
employment action; (3) his employer treated similarly situated employees more
favorably; and (4) he was qualified to do the job.”66 Alternatively, in the absence
of a comparator, a plaintiff may also state a claim if he alleges sufficient facts
to present “a convincing mosaic of circumstantial evidence that would allow a
jury to infer intentional discrimination by the decisionmaker.”67
Nash completely fails to carry this initial burden, as the Amended
Complaint contains nothing more than conclusory statements that he was
subjected to more severe punishment than white officers.68 “While legal

Glenn v. Brumby, 663 F.3d 1312, 1315 (11th Cir. 2011) (quoting
City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 446-47 (1985)).
64

65

411 U.S. 792 (1973).

66

Lewis v. City of Kennesaw, Ga., 504 F. App’x 880, 882 (11th Cir.

2013). In particular, “[w]hen a plaintiff alleges discriminatory discipline, the
quantity and quality of the comparator’s misconduct must be nearly identical to
the plaintiff’s.” Id.
67

Id.

68

See, e.g., Ramirez v. Holder, 590 F. App’x 780, 788 (10th Cir. 2014)

(holding that “bald and unsubstantiated” allegations that the plaintiff was
treated differently than others could not “support a plausible constitutional
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conclusions can provide the framework of a complaint, they must be supported
by factual allegations.”69 Here, Nash offers no examples of situations in which
similarly situated white police officers were treated more leniently.70 Nor do the
allegations in the Amended Complaint present a “convincing mosaic of
circumstantial evidence” that his race was ever a factor in his termination.71
Instead, he merely states that he “was subjected to far more severe punishment
than that given to the white police officers.”72 Given such “bald and unsubstantiated” allegations, the Court finds that Nash’s equal protection claim must be
dismissed.73
Nash’s Title VII claims of racial discrimination and hostile work
environment fail for similar reasons. First, Title VII racial discrimination claims

challenge.”).
69

Iqbal, 129 S.Ct. at 1950.

70

See, e.g., Thompson v. City of Waco, Texas, 764 F.3d 500, 502 (5th

Cir. 2014) (example of a case in which the plaintiff alleged that he was
specifically treated differently than two other police officers who had been
suspended for the same actions and at the same time as he was).
71

Lewis, 504 F. App’x at 882.

72

Amended. Compl. ¶ 63.

Ramirez, 590 F. App’x at 788. See also Uppal v. Hosp. Corp. of Am.,
No. 8:09-cv-634-T-33TMB, 2011 WL 2631869, at *3 (M.D. Fla. July 5, 2011)
(collecting cases and dismissing discrimination claims where allegations were
merely conclusory).
73

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are analyzed similarly to equal protection claims; if one fails, the other must
also.74 Second, a hostile work environment claim requires Nash to establish that:
(1) he belongs to a protected group; (2) he was subjected to
unwelcome harassment; (3) the harassment was based on his
membership in the protected group; (4) it was severe or pervasive
enough to alter the terms and conditions of employment and create
a hostile or abusive working environment; and (5) the employer is
responsible for that environment under a theory of either vicarious
or direct liability.75
Once again, the Amended Complaint contains only conclusory allegations that
the Defendants have exhibited “a pattern of more severe disciplinary action to
African Americans as to their white counterparts,” and denied black officers
promotions that went to white officers.76 The Amended Complaint contains no
factual allegations to support such a claim. As such, Nash’s Title VII claims
must also be dismissed.
D. Procedural Due Process Claim
In Count II, Nash brings his second constitutional claim, alleging that the
Defendants West and George violated his right to procedural due process by
denying him the ability to obtain evidence on his behalf, the opportunity to

Bryant v. Jones, 575 F.3d 1281, 1296 n.20 (11th Cir. 2009)
(“[D]iscrimination claims ... brought under the Equal Protection Clause [of the
Fourteenth Amendment], 42 U.S.C. § 1981, or Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e–2, are subject to the same standards of proof and
employ the same analytical framework.”).
74

75

Edwards v. Prime, Inc., 602 F.3d 1276, 1300 (11th Cir. 2010).

76

Amended Compl. ¶¶ 66, 100-101.

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confront his accusers, and by filing a false report.77 Additionally, Nash claims
that the City of Alpharetta “approved and ratified” their actions.78
“[A] § 1983 claim alleging a denial of procedural due process requires
proof of three elements: (1) a deprivation of a constitutionally-protected liberty
or property interest; (2) state action; and (3) constitutionally [ ] inadequate
process.”79 The only protected interests Nash claims have been deprived are his
law enforcement certification and his professional reputation.80 Neither of these
deprivations, however, constitute a procedural due process violation.
First, assuming arguendo that his certification is a protected property
interest, the Amended Complaint states Nash’s law enforcement certification
was revoked by the Georgia Peace Officers Standards and Training Council,
which is not a party to this case.81 As such, none of the Defendants can be said
to have deprived him of that interest.

77

Id. at ¶¶ 86-87.

78

Id. at ¶ 88.

J.R. v. Hansen, 803 F.3d 1315, 1320 (11th Cir. 2015) (quoting
Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003)).
79

80

Amended Compl. ¶ 73. The Court overlooks the fact that this
allegation is contained in his equal protection claim and not in his due process
claim.
81

See id. at ¶ 67; Defs.’ Mot. to Dismiss, at 10-11 [Doc. 28].

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Second, while courts have recognized personal reputation as a protected
liberty interest in certain circumstances,82 Nash has not alleged that his
reputation was harmed in a way that violates the Due Process Clause.
Procedural due process claims regarding harm to one’s personal reputation
require a plaintiff to show that there was: “(1) a false statement (2) of a
stigmatizing nature (3) attending a governmental employee’s discharge (4) made
public (5) by the governmental employer (6) without a meaningful opportunity
for employee name clearing.”83 Nash alleges that the Defendants submitted a
false report to the Council, but never alleges any facts to say why it was false.
Furthermore, Nash had, at minimum, the opportunity to seek a writ of
mandamus from a state court after he was terminated, but nothing in the
Amended Complaint suggests he ever did so.84 Thus, he had a meaningful

See Campbell v. Pierce Cty., Ga. By & Through Bd. of Comm’rs of
Pierce Cty., 741 F.2d 1342, 1344 (11th Cir. 1984) (holding that damage to
82

reputation is actionable when it is sustained in connection with termination of
employment).
83

Buxton v. City of Plant City, Fla., 871 F.2d 1037, 1042-43 (11th Cir.

84

Cotton v. Jackson, 216 F.3d 1328, 1332 (11th Cir. 2000) (“Under

1989).

Georgia law, when no other specific legal remedy is available and a party has a
clear legal right to have a certain act performed, a party may seek mandamus.”).
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opportunity to clear his name.85 Nash’s procedural due process claim is
dismissed accordingly.
E. Miscellaneous Reasons to Dismiss the Complaint
In addition to the analysis above, there are other reasons why claims
against specific Defendants in the Amended Complaint should be dismissed. For
instance, Nash fails to allege that the Defendants Regus, Bott, or McCall did
anything at all. The only allegation against these Defendants is that they “knew
and approve [sic]” of or “ratified” the alleged discrimination, or that it occurred
under their “administration.”86 This is not enough to sustain a claim against any
of these individuals.
Furthermore, the Amended Complaint does not demonstrate a basis for
holding Alpharetta liable under § 1983. To state a § 1983 claim against a
government entity, Nash must show that his rights were deprived because of a

85

Id. at 1333 (finding that plaintiff could not state a procedural due

process claim where he never sought a writ of mandamus in state court to order
a name-clearing hearing). See also Luck v. Pippert, No. 2:05-CV-37-WCO, 2006
WL 418485, at *4 (N.D. Ga. Feb. 21, 2006) (O’Kelley, J.) (plaintiff failed to state
claim for violation of due process in being terminated without hearing, based on
alleged false accusations of wrongdoing, where he failed to show he sought
mandamus because “mandamus would be an adequate remedy under state law
to ensure that plaintiff is not deprived of his due process rights”); Cochran v.
Collins, 253 F. Supp. 2d 1295, 1305 (N.D. Ga. 2003) (Pannell, J.) (public-safety
officer terminated for alleged wrongdoing barred from bringing due process
claim where he failed to seek writ of mandamus to attain new termination
hearing).
86

Amended Compl. ¶¶ 44-45, 78, 99-101.

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policy or custom the City had in place.87 Isolated actions on the part of
individual officials are insufficient,88 as are “vague and conclusory allegations”
like those contained in the Amended Complaint.89
Lastly, any Title VII claims against the individual Defendants must be
dismissed because “[t]he relief granted under Title VII is against the employer,
not individual employees whose actions would constitute a violation of the
Act.”90 “The only proper individual defendants in a Title VII action would be
supervisory employees in their capacity as agents of the employer.”91 However,
where the employer has already been named as a defendant, “naming of the
individuals is unnecessary, inappropriate, and not authorized by the applicable
law.”92

87

(1997).

Bd. of Cty. Comm’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 403

Id. at 404 (holding that municipalities cannot be held liable under
theories of respondeat superior; instead, a plaintiff must show that “through its
deliberate conduct, the municipality was the ‘moving force’ behind the injury
88

alleged.”) (emphasis in original).

Harvey v. City of Stuart, 296 F. App’x 824, 826 (11th Cir. 2008).
See also Amended Compl. ¶¶ 66, 99.
89

90

Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991).

91

Hinson v. Clinch Cty., Georgia Bd. of Educ., 231 F.3d 821, 827

(11th Cir. 2000) (citing Busby, 931 F.2d at 772).
92

1999).

Richey v. City of Lilburn, 127 F. Supp. 2d 1250, 1256 (N.D. Ga.

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IV. Conclusion
For the reasons stated above, the Defendants’ Motion to Dismiss [Doc. 28]
is GRANTED.
SO ORDERED, this 7 day of February, 2018.

/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge

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