Everett et al v. Cobb County, Georgia et al

Filing 85

OPINION AND ORDER granting 65 Motion for Summary Judgment. Signed by Judge Thomas W. Thrash, Jr. on 7/26/19. (bnp)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
AMY EVERETT,
Plaintiff,
v.

CIVIL ACTION FILE
NO. 1:17-CV-3392-TWT

COBB COUNTY, GEORGIA, et al.,
Defendants.
OPINION AND ORDER
This is a civil rights action. It is before the Court on the Defendants Cobb
County and Officer James W. Hopkins’ Motion for Summary Judgment [Doc.
65]. For the reasons stated below, the Defendants’ Motion for Summary
Judgment is GRANTED.
I.

Background

The Plaintiff Amy Everett is a resident of Alabama. 1 On January 1,
2015, the Plaintiff’s husband, Tjelvar Everett, admitted that he had engaged
in an affair while both were working as teachers at Hiram High School in
Georgia during the 2006-07 and 2007-08 school years.2 On January 2, 2015,
the Plaintiff attempted to contact her husband’s alleged affair partner, Lani

1

Defs.’ Statement of Material Facts ¶ 60 [Doc. 65-2].

2

Id. ¶ 61.

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Miller, through Facebook Messenger.3 The Plaintiff expressed anger and hurt
at Ms. Miller’s conduct and directed several profanity-laden insults at Ms.
Miller’s appearance and character.4 Ms. Miller did not respond. The Plaintiff
sent a similar message on January 10, 2015, demanding an apology, but again
did not receive a response. 5 The Plaintiff then called Ms. Miller’s place of
employment, Harrison High School in Kennesaw, Georgia, to speak to Ms.
Miller.6 The Plaintiff claims that they had a 30-minute conversation in which
Ms. Miller admitted to the affair and apologized.7 The Plaintiff told Ms. Miller
that she would place her name on a “revenge website” that lists the names of
adulterers and demanded that Ms. Miller publicly confess to the affair.8 When
Ms. Miller did not comply, the Plaintiff proceeded to send a series of emails to
Ms. Miller, her co-workers, her supervisors, and her family members over the
course of several months.9 In keeping with the Plaintiff’s original messages to
Ms. Miller, these emails were profane, insulting, and fixated on Ms. Miller’s

3

Id. ¶ 64.

4

Id.; Defs.’ Ex. 3 to Amy Everett Dep., at 71 [Doc. 68-1].

Defs.’ Statement of Material Facts ¶ 64; Defs.’ Ex. 3 to Amy
Everett Dep., at 72.
5

6

Defs.’ Statement of Material Facts ¶ 65.

7

Id. ¶¶ 65-67.

8

Id. ¶¶ 69, 72. The Plaintiff never placed Ms. Miller’s name on this

website. Id. ¶ 70.
9

Id. ¶¶ 75-86.
2

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perceived moral failings.10 The Plaintiff used various accounts to send these
messages, at times posing as Ms. Miller or as Mr. Everett in order to “confess”
to the affair on their behalf.11 On August 24, 2015, the Plaintiff, writing from
an account registered under Ms. Miller’s name, sent emails to Ms. Miller, Ms.
Miller’s husband, and Ms. Miller’s mother. In one email to Ms. Miller, the
Plaintiff said that she planned to “come to Harrison for a visit this week”
because she “need[ed] to see [Ms. Miller] cry.”12
On August 25, 2015, Ms. Miller visited the Cobb County Police
Department to file a report.13 She spoke with Defendant James W. Hopkins, a
police detective. 14 Ms. Miller outlined her history with the Plaintiff and
provided Defendant Hopkins with the communications that she had received
to date. 15 Ms. Miller denied having an affair with the Plaintiff’s husband
during her interview. 16 After reviewing the information provided by Ms.
Miller, Defendant Hopkins determined that probable cause existed to seek a
warrant for violations of O.C.G.A. § 16-11-39.1, which criminalizes harassing

10

See generally Defs.’ Ex. 3 to Amy Everett Dep.

11

Defs.’ Statement of Material Facts ¶¶ 75-86, 101-106.

12

Id. ¶ 80; Defs.’ Ex. 3 to Amy Everett Dep., at 76.

13

Id. ¶ 87.

14

Id. ¶ 88.

15

Id. ¶¶ 89, 91-92.

16

Id. ¶ 93.
3

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communications.17 Defendant Hopkins took no further action on August 25,
but told Ms. Miller that she should forward any additional communications to
him.18
The Plaintiff resumed emailing on August 26, 2015. On that date, the
Plaintiff sent emails “from” Ms. Miller and Mr. Everett to Ms. Miller’s coworkers “admitting” to the affair and describing sex acts in lurid detail. The
Plaintiff also sent an email to Ms. Miller’s husband urging him to divorce Ms.
Miller because of the affair.19 The Millers forwarded these emails to Defendant
Hopkins.20 Defendant Hopkins called a number listed in one of the emails but
was unable to reach the Plaintiff.21 Defendant Hopkins then sent a letter to
every email account associated with the Plaintiff, warning her to cease all
communication with Ms. Miller or face criminal charges.22 Defendant Hopkins
set a deadline of 1 p.m. on August 26, 2015, with no time zone specified.23 The
Plaintiff, writing from an email address registered under Mr. Everett’s name,
responded to Defendant Hopkins and insisted that the affair was real, rather

17

Id. ¶ 94.

18

Id. ¶ 100.

19

Id. ¶¶ 101-108. See Defs.’ Ex. 3 to Amy Everett Dep., at 78-80.

20

Defs.’ Statement of Material Facts ¶¶ 105, 108.

21

Id. ¶ 109.

22

Id. ¶¶ 115-16, 118.

23

Id. ¶ 116.
4

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than merely suspected as the letter suggested.24 At 12:36 p.m. CT/1:36 p.m.
EST, the Plaintiff, again writing from an email account registered under Mr.
Everett’s name, emailed Ms. Miller to tell her that she should have named Mr.
Everett in her “complaint” to Defendant Hopkins.25 She further informed Ms.
Miller that she would have to come testify in the Plaintiff’s divorce
proceedings.26
After learning of the additional email to Ms. Miller, Defendant Hopkins
decided to apply for a warrant for the Plaintiff’s arrest.27 Magistrate Court
Judge Hugh Robinson granted the warrant on August 28, 2015. 28 After
securing the warrant, Defendant Hopkins recommended to the Cobb County
Sheriff’s Office that the Plaintiff be extradited from Alabama to face charges
in Cobb County. 29 The Sheriff’s Office submitted a formal request to the
Solicitor’s Office to extradite the Plaintiff from Alabama, which the Solicitor’s
Office then approved.30 After receiving the extradition request, the Sheriff’s
Office in Jefferson County, Alabama, arrested the Plaintiff at her home in

24

Id. ¶ 120.

25

Id. ¶ 121.

26

Id. ¶ 121.

27

Id. ¶ 125.

28

Id. ¶¶ 127, 135.

29

Id. ¶ 139.

30

Id. ¶¶ 140-41.
5

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Hoover, Alabama on September 8, 2015. 31 The Plaintiff was taken to the
Jefferson County Jail.32 On September 9, 2015, the Plaintiff’s legal counsel
negotiated the lifting of the extradition request in return for the Plaintiff
voluntarily surrendering to authorities in Cobb County, Georgia. 33 The
Plaintiff voluntarily surrendered on September 10, 2015, and was released on
bond the same day.34 On October 18, 2015, the Cobb County Solicitor’s Office
charged the Plaintiff with violating O.C.G.A. § 16-11-39.1. 35 On March 16,
2016, the Solicitor’s Office entered a nolle prosequi in the Plaintiff’s case and
did not pursue the matter further.36
In October of 2016, the Plaintiff filed a formal complaint with the Cobb
County Police Department regarding Defendant Hopkins’ handling of the

31

Id. ¶ 143.

32

Id. ¶ 147.

33

Id. ¶ 148.

34

Id.

35

Id. ¶ 150.

Id. ¶ 157. The parties dispute the circumstances under which the
nolle prosequi was entered. The Defendant claims that the Plaintiff received
the nolle prosequi after completing an anger management evaluation,
performing 40 hours of community service, and admitting guilt. Id. It is the
policy of the Solicitor’s Office to enter nolle prosequi agreements only in the
cases of defendants who have admitted guilt. Id. ¶ 154. The Plaintiff admits to
36

completing the evaluation and performing the community service but claims
that she never admitted guilt. See Pl.’s Resp. to Defs.’ Statement of Material
Facts ¶ 157 [Doc. 75]. The nolle prosequi form submitted in state court does
not indicate whether the Plaintiff admitted guilt. See Defs.’ Ex. 14 to Amy
Everett Dep., at 125 [Doc. 68-1].
6
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case.37 The Cobb County Police Department investigated the Plaintiff’s claim
and determined that the complaint was unfounded.38 The Plaintiff also filed a
formal complaint with the State Judicial Qualifications Commission against
Magistrate Judge Hugh Robinson, contending that Judge Robinson wrongly
issued the warrant that led to her arrest. 39 The Commission reviewed the
complaint and found no impropriety on the part of Judge Robinson.40
The Plaintiff and Mr. Everett filed the instant suit on September 6,
2017.41 The Complaint was filed pro se, but the Plaintiff has been represented
by counsel since October 1, 2017. 42 The Plaintiff and her husband named
Hopkins, Cobb County, and Ms. Miller as Defendants. Defendant Hopkins was
sued in his individual and official capacities. The Plaintiff and her husband
sought monetary and injunctive relief for 42 U.S.C. § 1983 violations of their
First, Fourth, and Tenth Amendment rights under the U.S. Constitution, as
well as for state law claims of false arrest, false imprisonment, and malicious
prosecution.43 On December 18, 2017, the Court dismissed the federal claims

37

Id. ¶¶ 159-60.

38

Id. ¶¶ 161-165.

39

Id. ¶ 166.

40

Id. ¶ 167.

41

Compl. [Doc. 1].

42

See Notice of Appearance [Doc. 9].

43

Compl. ¶¶ 126-87.
7

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against Ms. Miller.44 On May 15, 2018, the Court dismissed the remaining
state law claims against Ms. Miller, and dismissed Mr. Everett from the case
for failure to state a claim against any party. 45 The remaining Defendants
have moved for summary judgment.
II.
Summary

judgment

Legal Standard
is

appropriate

only

when

the

pleadings,

depositions, and affidavits submitted by the parties show no genuine issue of
material fact exists and that the movant is entitled to judgment as a matter of
law. 46 The court should view the evidence and any inferences that may be
drawn in the light most favorable to the nonmovant. 47 The party seeking
summary judgment must first identify grounds that show the absence of a
genuine issue of material fact.48 The burden then shifts to the nonmovant, who
must go beyond the pleadings and present affirmative evidence to show that a
genuine issue of material fact exists.49

44

First Dismissal Order, at 8 [Doc. 20].

45

Second Dismissal Order, at 9 [Doc. 37].

46

Fed. R. Civ. P. 56(c).

47

Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970).

48

Celotex Corp. V. Catrett, 477 U.S. 317, 323-24 (1986).

49

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
8

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III.

Discussion

The Plaintiff brings claims under § 1983 for violations of her First and
Fourth Amendment rights. The Plaintiff also brings analogous claims for false
arrest, false imprisonment, and malicious prosecution under state law. The
Court will begin with the federal claims.
A. Federal Claims
The Plaintiff alleges that her First Amendment rights were violated
when Defendant Hopkins sought her arrest under Georgia’s “harassing
communications” statute, O.C.G.A. § 16-11-39.1, in retaliation for the use of
protected speech. The Plaintiff further alleges that her Fourth Amendment
rights were violated when she was extradited from Alabama based on a
warrant that, according to the Plaintiff, was issued without probable cause.
The Plaintiff argues that Defendant Cobb County can be held liable for
Defendant Hopkins’ conduct because he purportedly acted pursuant to a
county-wide policy of arresting individuals merely for using expletives. 50

The Plaintiff’s Complaint also references a § 1983 claim for
violations of the Plaintiff’s Tenth Amendment rights. Compl. ¶ 7. The
Complaint does not, however, provide a “short and plain statement of the
claim” as required by Federal Rule of Civil Procedure 8(a)(2) or identify any
facts giving rise to a Tenth Amendment violation. The Plaintiff suggests in her
response brief that the circumstances giving rise to the Fourth Amendment
violation might also give rise to a Tenth Amendment violation, but does not
explain how or why this is the case. Therefore, insofar as the Plaintiff intended
to pursue this claim, summary judgment should be entered in the Defendants’
favor because the Plaintiff has failed to state a claim on which relief could be
granted and because the Plaintiff has abandoned the claim at summary
judgment. See Fischer v. Fed. Bureau of Prisons, 349 F. App'x 372, 375 (11th
9
50

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Defendant Hopkins argues that he is entitled to qualified immunity on the §
1983 claims brought against him in his individual capacity. Defendant Cobb
County argues that the Plaintiff has failed to show the existence of any
unconstitutional policy, custom, or practice that could plausibly give rise to
municipal liability, warranting dismissal of the § 1983 claims brought against
it and against Defendant Hopkins in his official capacity.
1. Whether Defendant Hopkins is Entitled to Qualified
Immunity
The doctrine of qualified immunity protects law enforcement officers
from suit under § 1983 when certain conditions apply.51 In order to assert the
defense of qualified immunity, the officer must first show that he committed
the allegedly wrongful acts within the scope of his discretionary authority.52

Cir. 2009) (“We note that Fischer has waived any claim related to the blood
clotting in his leg because he did not address that issue in response to Dr.
Tidwell's motion for summary judgment.”); see also Crayton v. Valued Servs.
of Alabama, LLC, 737 F. Supp. 2d 1320, 1331 (M.D. Ala. 2010) (“[T]he Court
finds that Plaintiff has abandoned her non-termination retaliation claims due
to her failure to address Defendant's arguments respecting these claims or
otherwise provide support for them in her response to the motion for summary
judgment.”). Furthermore, although the Court need not and does not reach the
issue, the Court is not convinced that the Tenth Amendment is a source of
individual rights at all. See Stone v. City of Prescott, 173 F.3d 1172, 1175 (9th
Cir. 1999) (“[I]t is the power of the federal government which is constrained by
the Tenth Amendment, not the power of the States. Plaintiffs cannot found a
section 1983 claim on the Tenth Amendment because it is neither a source of
federal authority nor a fount of individual constitutional rights.”).
51

Anderson v. Creighton, 483 U.S. 635, 638 (1987); Pearson v.

Callahan, 555 U.S. 223, 231 (2009).
52

Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002).
10

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The burden then shifts to the Plaintiff to show (1) that the officer’s conduct
violated a constitutional right and (2) that the right was clearly established.53
In order for a constitutional right to be clearly established, the law must have
been developed in “a concrete and factually defined context” such that a
reasonable government official in the Defendant’s place would understand that
his conduct violated federal law.54 Whether a constitutional right is clearly
established is a question of law for the court to decide.55
There can be no doubt that Defendant Hopkins was acting within the
scope of his discretionary authority as a police detective when he investigated
the case, secured a warrant for the Plaintiff’s arrest, and recommended to the
Cobb County Sheriff’s Office that the Plaintiff be extradited from Alabama.
The question therefore becomes whether the facts viewed in the light most
favorable to the Plaintiff show that Defendant Hopkins violated the Plaintiff’s
clearly established rights under the First or Fourth Amendments.
a. First Amendment Claim
To establish that Defendant Hopkins unlawfully retaliated against the
Plaintiff for exercising her First Amendment rights, the Plaintiff must show

53

Id.

Jackson v. Sauls, 206 F.3d 1156, 1164 (11th Cir. 2000) (quoting
Lassiter v. Alabama A & M Univ. Bd. of Trustees, 28 F.3d 1146, 1149 (11th
54

Cir. 1994)).
55

Simmons v. Bradshaw, 879 F.3d 1157, 1163 (11th Cir. 2018).
11

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“first, that [her] speech or act was constitutionally protected; second, that
[Defendant Hopkins’] retaliatory conduct adversely affected the protected
speech; and third, that there is a causal connection between the retaliatory
actions and the adverse effect on speech.”56 The Plaintiff’s argument fails at
the first prong of the analysis. The Plaintiff contends that the content of her
emails constituted protected speech. In these emails, however, the Plaintiff: (1)
demanded an apology using threatening language; 57 (2) stated that she
planned to visit Ms. Miller’s place of work because she “need[ed] to see [her]
cry”; 58 (3) repeatedly described the alleged sexual encounter between Ms.
Miller and Mr. Everett in detail and told Ms. Miller that she ought to have sex
with Mr. Everett again;59 (4) threatened to upend Ms. Miller’s personal and

Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005). The
Plaintiff’s Complaint contains two counts that are styled as “First
Amendment” claims, with only one of them explicitly styled as a “retaliation”
claim. After review of both counts, however, the Court concludes that the only
cognizable First Amendment claim that the Plaintiff has raised is one for
retaliation. In any event, because the Court concludes that the Plaintiff’s
speech was not constitutionally protected, any claim based on the First
Amendment necessarily fails.
56

Ex. 3 to Amy Everett Dep., at 71 (“I had better get that sincere
detailed fucking apology that I deserve from that cunt bitch, and it better be
prompt… I don’t have forgiveness and I certainly don’t have any fucking
patience for this shit, so that cunt better get this rolling.”).
57

58

Id., at 76 (“I need to see you cry. I think I’ll come to Harrison for

a visit this week. Poor Lani doesn’t wanna [sic] be contacted. Fuck you cunt.”).

Id., at 76 (“Call your lover [phone number]. He misses you. Maybe
you can invite him over and fuck on the kitchen counter again.”); id., at 79 (“Yes
59

I fucked her. On your kitchen counter. On your sofa. I came in her. didn't [sic]
use a rubber.”).
12
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professional life if she did not “confess” to the affair;60 and (5) followed through
on that threat. 61 Communications intended to harass and frighten the
recipient are not protected speech. 62 Nor are communications that are
obscene.63 Because the Plaintiff’s speech was not constitutionally protected, it
necessarily follows that Defendant Hopkins did not violate her First
Amendment rights by seeking her arrest pursuant to O.C.G.A. § 16-11-39.1.64

Ex. 5 to Amy Everett Dep., at 94 [Doc. 68-1] (transmitting link to
website outing adulterers); id., at 95 (asking Ms. Miller whether her principal
and her family “know you are a whore?”); id., at 97 (threatening to tell Ms.
Miller’s minor son “about what a whore his mom is” and claiming that it is
“[g]onna [sic] be a long time before this shit ends you slut”).
60

Ex. 3 to Amy Everett Dep., at 78 (describing the affair to Ms.
Miller’s co-workers); id., at 80 (same); Ex. 5 to Amy Everett Dep., at 100 (posing
as Ms. Miller and “confessing” the affair to Ms. Miller’s mother).
61

United States v. Eckhardt, 466 F.3d 938, 944 (11th Cir. 2006)
(citing United States v. Bowker, 372 F.3d 365, 380 (6th Cir. 2004), vacated on
other grounds, 543 U.S. 1182 (2005)).
62

63

Id. (citing Roth v. United States, 354 U.S. 476, 485 (1957)

(“[O]bscenity is not within the area of constitutionally protected speech.”)).

Count II of the Complaint appears to suggest that the Plaintiff’s
speech was constitutionally protected because her communications were
directed at a teacher employed by the County. See Compl. ¶ 156 (“Defendant
Hopkins actively initiated and procured the extradition for arrest and
prosecution of Mrs. Everett in a criminal action in retaliation for her vocal
protest and criticism of a County teacher’s extramarital affair.”) (emphasis
added). If by this the Plaintiff means to argue that otherwise unprotected
speech becomes protected when directed at a state employee, no such
categorical rule exists in the Eleventh Circuit. If instead the Plaintiff means to
argue that the details of a past affair between two public school teachers are a
matter of public or political concern, the Court finds the suggestion risible. In
any event, the Plaintiff does not develop this line of argument further at
summary judgment, and the Court sees no reason to alter its analysis based
on Ms. Miller’s vocation.
64

13
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Even if the Plaintiff’s speech was protected under the First Amendment, the
Plaintiff has not met her burden of proving that her speech was protected
under clearly-established law. Defendant Hopkins is entitled to qualified
immunity on the Plaintiff’s First Amendment claim.
b. Fourth Amendment Claim
The Plaintiff argues that Defendant Hopkins violated her Fourth
Amendment rights by causing her to be arrested without probable cause. The
Plaintiff styles her claim as one for false arrest and imprisonment. But,
because the Plaintiff was arrested pursuant to a warrant and an extradition
request, her claim is properly one for malicious prosecution.65 “To establish a
§ 1983 malicious prosecution claim, the plaintiff must prove two things: (1) the
elements of the common law tort of malicious prosecution; and (2) a violation
of [her] Fourth Amendment right to be free from unreasonable seizures.”66 The
elements of the common law tort of malicious prosecution are: “(1) a criminal
prosecution instituted or continued by the present defendant; (2) with malice

65

See Whiting v. Traylor, 85 F.3d 581, 585 (11th Cir. 1996) (“Here,

Whiting says that Defendants applied for and obtained an arrest warrant
and—based on the warrant—caused him to be unreasonably ‘seized’ in 1988.
He says also he was unlawfully arrested in February 1989. Obtaining an arrest
warrant is one of the initial steps of a criminal prosecution. Under these
circumstances (that is, where seizures are pursuant to legal process), we agree
with those circuits that say the common law tort ‘most closely analogous’ to
this situation is that of malicious prosecution.”).

Grider v. City of Auburn, Ala., 618 F.3d 1240, 1256 (11th Cir.
2010) (citing Kingsland v. City of Miami, 382 F.3d 1220, 1234 (11th Cir. 2004);
Wood v. Kesler, 323 F.3d 872, 881 (11th Cir. 2003)).
66

14
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and without probable cause; (3) that terminated in the plaintiff accused's favor;
and (4) caused damage to the plaintiff accused.”67 A police officer can be liable
for malicious prosecution if he knew or should have known that his application
for an arrest warrant “failed to establish probable cause or if he made
statements or omissions in his application that were material and perjurious
or recklessly false.”68
The Plaintiff first argues that Detective Hopkins should have known
that his warrant application lacked probable cause because the Plaintiff’s
contacts with Ms. Miller were not punishable under the harassing
communications statute. 69 The statute criminalizes contacts with another
person “for the purpose of harassing, molesting, threatening, or intimidating
such person or the family of such person[.]”

70

The statute exempts

“constitutionally protected speech” from its list of proscribed acts.71 An officer
reviewing the emails sent to Ms. Miller could reasonably conclude that the
communications were sent with the intent to “harass[], molest[], threaten[], or

67

Id. (quoting Wood, 323 F.3d at 882).

Williams v. Scott, 682 F. App'x 865, 867 (11th Cir. 2017) (quoting
Black v. Wigington, 811 F.3d 1259, 1267 (11th Cir. 2016)).
68

The Plaintiff concedes that Defendant Hopkins believed that
probable cause existed at the time that he applied for an arrest warrant. See
Pl.’s Resp. to Defs.’ Statement of Material Facts ¶ 94.
69

70

O.C.G.A. § 16-11-39.1(a)(1).

71

Id. § 16-11-39.1(e).
15

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intimidat[e]” Ms. Miller and members of her family. And, for reasons that the
Court has already discussed, an officer could also reasonably conclude that
these communications were not “constitutionally protected speech.” The
Plaintiff presents no plausible argument to the contrary, and the Court will
not deny qualified immunity on the grounds urged by the Plaintiff.
The Plaintiff next argues that the circumstances surrounding her
extradition gave rise to a Fourth Amendment violation. As best as the Court
can determine, the Plaintiff’s argument proceeds as follows: Under Georgia
law, the Plaintiff’s “conduct” of sending the allegedly harassing emails
occurred in Alabama. Because the Plaintiff’s allegedly unlawful conduct
occurred in Alabama, Defendant Hopkins lacked authority to seek the
Plaintiff’s arrest under Georgia’s harassing communications statute absent an
express extraterritorial jurisdiction clause. Because Defendant Hopkins lacked
authority to seek the Plaintiff’s arrest, the warrant application was not
supported by probable cause. Because the warrant application was not
supported by probable cause, the resulting extradition gave rise to a Fourth
Amendment violation.
The Plaintiff fundamentally misunderstands the circumstances under
which Georgia criminal law can be applied extraterritorially. The Plaintiff is
correct that, under Georgia law, the “conduct” of sending a harassing or
threatening communication occurs at the place where the communication

16
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originates, not where it is received.72 The Plaintiff argues that Georgia cannot
punish out-of-state defendants under the harassing communications statute,
because, as a general rule, criminal laws “have no force of themselves beyond
the jurisdiction of the state which enacts them.”73 It is unclear whether the
Plaintiff believes that an express extraterritorial jurisdiction provision would
fix the problem, or whether the Plaintiff believes that no criminal statute can
ever be applied extraterritorially without running afoul of the U.S.
Constitution. In either case, the Plaintiff is incorrect.
It has been well-settled law for over a century that “[a]cts done outside
a jurisdiction, but intended to produce and producing detrimental effects
within it, justify a state in punishing the cause of the harm as if he had been
present at the effect, if the state should succeed in getting him within its

72

Anderson v. Deas, 279 Ga. App. 892, 893-94 (Ga. Ct. App. 2006)

(holding that the conduct of placing a harassing phone call occurs at the place
that the call is made); Huggins v. Boyd, 304 Ga. App. 563, 565-66 (2010)
(holding that the conduct of sending a harassing email occurs at the place from
which the email is sent) (citing Anderson); see also LABMD, Inc. v. Tiversa,
Inc., 509 F. App'x 842, 844 (11th Cir. 2013) (“For purposes of personal
jurisdiction under Georgia's long-arm statute, Georgia courts have ruled
that—when a defendant uses the telephone or email to contact a Georgia
resident—defendant's conduct occurs at the place where defendant speaks into
the telephone or types and sends his email.”) (citing Anderson).

Huntington v. Attrill, 146 U.S. 657, 669 (1892); see also
Manchester v. Massachusetts, 139 U.S. 240, 263 (1891) (“The jurisdiction of a
73

state is co-extensive with its territory; co-extensive with its legislative power.”)
(quoting United States v. Bevans, 16 U.S. 336, 387 (1818) (Marshall, C.J.));
Grimes v. Greer, 223 Ga. 628 (1967) (“Generally, penal laws have no
extraterritorial effect.”)).
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power.”74 Georgia’s criminal jurisdiction statute asserts that “[i]t is the policy
of this state to exercise its jurisdiction over crime and persons charged with
the commission of crime to the fullest extent allowable under, and consistent
with, the Constitution of this state and the Constitution of the United
States.”75 Thus, the question of whether Georgia’s harassing communications
statute can be applied extraterritorially does not, as the Plaintiff suggests,
turn on whether the statute itself contains a jurisdictional provision. Rather,
the question is whether some element of the crime, either the conduct element

or the result element, occurred within Georgia.76
Strassheim v. Daily, 221 U.S. 280, 285 (1911) (citing Simpson v.
State, 92 Ga. 41 (1893) (Holding that it is “beyond question that a criminal act
74

begun in one state and completed in another renders the person who does the
act liable to indictment in the latter.”)).
75

O.C.G.A. § 17-2-1(a).

The Defendants argue that section (c) of the harassing
communications statute permits its extraterritorial application. Section (c)
states that “[t]he offense of harassing communications shall be considered to
have been committed in the county where: (1) [t]he defendant was located
when he or she placed the telephone call or transmitted, sent, or posted an
electronic communication; or (2) [t]he telephone call or electronic
communication was received.” O.C.G.A. § 16-11-39.1(c). The Defendants’
reliance on this statutory language is misplaced. This language was added to
the statute in 2015 after passage of Senate Bill 72, which updated Georgia’s
“harassing phone calls” statute and extended its reach to all forms of telephonic
and electronic communication. S.B. 72, 153d Gen. Assemb., Reg. Sess. (Ga.
2015). The caption of Senate Bill 72 makes clear that the language regarding
the site of the crime was added “to provide for venue” in the appropriate county.
Id. Venue might well have been appropriate in the county where Ms. Miller
received the Plaintiff’s emails. But the state must assert some independent
basis for criminal jurisdiction. See Lindahl v. Office of Pers. Mgmt., 470 U.S.
768, 793 n.30 (1985) (“Venue provisions come into play only after jurisdiction
has been established and concern ‘the place where judicial authority may be
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As set forth in the harassing communications statute, a person commits
the crime of harassing communications when he or she “[c]ontacts another
person repeatedly via telecommunication, e-mail, text messaging, or any other
form of electronic communication for the purpose of harassing, molesting,
threatening, or intimidating such person or the family of such person[.]”77 The
Court is unable to locate any Eleventh Circuit or Georgia case law analyzing
the elements of the crime or the extraterritorial reach of the statute.78 But a

exercised’; rather than relating to the power of a court, venue ‘relates to the
convenience of litigants and as such is subject to their disposition.’”).
77

O.C.G.A. § 16-11-39.1.

The Plaintiff argues that the reach of the harassing
communications statute was settled by the Georgia Court of Appeals rulings
in Anderson and Huggins. It was not. In Anderson and Huggins, the plaintiffs
petitioned for protective orders against out-of-state defendants accused of
domestic violence and stalking, respectively. 273 Ga. App. at 770; 304 Ga. App.
at 563. The code sections governing such petitions authorize Georgia courts to
exercise personal jurisdiction over out-of-state defendants to the extent
permitted by Georgia’s long-arm statute, O.C.G.A. § 9-10-11. See O.C.G.A. §
19-13-2(b) (“For proceedings under this article involving a nonresident
respondent, the superior court where the petitioner resides or the superior
court where an act involving family violence allegedly occurred shall have
jurisdiction, where the act involving family violence meets the elements for
personal jurisdiction provided for under paragraph (2) or (3) of Code Section 910-91.”); O.C.G.A. § 16-5-94(a)-(b) (“A person who is not a minor who alleges
stalking by another person may seek a restraining order by filing a petition
alleging conduct constituting stalking as defined in Code Section 16-5-90. A
person who is not a minor may also seek relief on behalf of a minor by filing
such a petition… Jurisdiction for such a petition shall be the same as for family
violence petitions as set out in Code Section 19-13-2.”). The Georgia Court of
Appeals held in both cases that, because the conduct of sending a harassing
communication occurs at the place where it is sent, the defendants had not
engaged in a “persistent course of conduct… in this state” for the purposes of
Paragraph (3) of Georgia’s long-arm statute. Anderson, 279 Ga. App. at 893-94
(“We, therefore, conclude that Deas did not engage in any conduct, persistent
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common-sense reading of the statute suggests that the crime is not complete
until the harassing communication is received. The word “contact” necessarily
implies that a person is, in fact, contacted. An attempted but failed contact
would not be punishable under the plain language of the statute. The Court
concludes that a necessary result of the crime of harassing communications is
that the target, or the family of the target, actually receives the
communication. Georgia’s criminal jurisdiction statute, consistent with the
bounds set by the U.S. Supreme Court, permits extraterritorial application of
its criminal laws when the result element of the crime occurs within its
borders. Therefore, Defendant Hopkins did not make a mistake as to
jurisdiction in seeking the Plaintiff’s arrest, and, by extension, could not have
violated the Plaintiff’s constitutional rights by seeking her arrest in Alabama.
Defendant Hopkins is therefore entitled to qualified immunity on the
Plaintiff’s Fourth Amendment claim.79

or otherwise, in Georgia, either when he made his daily phone calls to speak to
his daughter or when he made the calls that allegedly threatened and harassed
Anderson.”); Huggins, 304 Ga. App. at 566 (citing Anderson). As the Court has
already explained, Georgia’s jurisdiction over criminal defendants is governed
by its criminal jurisdiction statute, not the long-arm statute. Whereas the longarm statute allows for personal jurisdiction when tortfeasors engage in a
persistent course of conduct within Georgia, the criminal jurisdiction statute
allows Georgia courts to exercise jurisdiction over crimes and criminal
defendants when the conduct or the result of the crime occurs within Georgia.
Compare O.C.G.A. § 9-10-11 with O.C.G.A. § 17-2-1.
In her response brief, the Plaintiff for the first time suggests that
her extradition violated the dormant Commerce Clause. See Pl.’s Resp. to Defs.’
Mot. for Summ. J., at 20-21 [Doc. 73]. Suits for violations of the dormant
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Even if the Court were to assume arguendo that Georgia’s harassing
communications statute cannot be applied extraterritorially, it does not follow
that Defendant Hopkins’ conduct violated the Plaintiff’s clearly established
constitutional rights. The Plaintiff does not cite any relevant authority
establishing that extradition based on a jurisdictionally defective warrant is
an unreasonable seizure under the Fourth Amendment. To the contrary,
clearly established precedent runs counter to the Plaintiff’s position. Multiple
Circuits, including the Eleventh, have held that arrests made outside of the
arresting officer’s jurisdiction at most violate state or federal jurisdictional
statutes and do not give rise to a Fourth Amendment violation if the officer
reasonably believed that the arrest was supported by probable cause.80 The

Commerce Clause can be brought under § 1983. Dennis v. Higgins, 498 U.S.
439, 451 (1991). But the Plaintiff “may not amend her complaint through
argument in a brief opposing summary judgment.” Gilmour v. Gates,
McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004). In any event, the
Plaintiff does not explain how the Defendants interfered with her right to
engage in interstate commerce.

See United States v. Goings, 573 F.3d 1141, 1143 (11th Cir. 2009)
(“[I]t was irrelevant for purposes of the Fourth Amendment whether Goings's
arrest violated state law, so long as it was supported by probable cause.”)
(citing Virginia v. Moore, 553 U.S. 164, 166 (2008)); see also United States v.
Ryan, 731 F.3d 66, 70 (1st Cir. 2013) (“[A]n extraterritorial arrest is not a per
se violation of the Fourth Amendment.”) (citing Moore); United States v. Sed,
601 F.3d 224, 228 (3d Cir. 2010) (“In light of Moore, Sed is plainly wrong when
he argues that his arrest in violation of Ohio law renders the conduct of the
[Pennsylvania] State Police unreasonable per se under the Fourth
Amendment.”); Pasiewicz v. Lake Cty. Forest Pres. Dist., 270 F.3d 520, 526
(7th Cir. 2001) (“The federal government is not the enforcer of state law”)
(citation omitted). In Engleman v. Deputy Murray, the Eighth Circuit
suggested in dicta that even an officer with objectively unreasonable beliefs
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Plaintiff has not cited any precedent showing that her clearly established
Fourth Amendment rights were violated, and Defendant Hopkins is therefore
entitled to qualified immunity even if he, the Cobb County Sheriff’s Office, the
Cobb County Solicitor’s Office, and this Court are wrong that the harassing
communications statute can be applied extraterritorially.81
Because the Court has concluded that the Plaintiff cannot show that
Defendant Hopkins lacked probable cause or that the Plaintiff’s Fourth
Amendment right to be free of unreasonable seizures was violated, the Court
offers no opinion on whether the remaining elements of the common law tort
of malicious prosecution are met in this case. In particular, the Court does not
address the question of whether entry of the nolle prosequi in the Plaintiff’s
underlying criminal case resolved the case in her favor.82

regarding his jurisdiction would not violate the Fourth Amendment by
arresting a suspect in a neighboring state. 546 F.3d 944, 951 n.5 (8th Cir.
2008).
In the Eleventh Circuit, evidence that a police officer’s
supervisors and state prosecutors believed that probable cause existed is
strong evidence that the police officer lacked the requisite malice to be liable
for malicious prosecution. Williams v. Scott, 682 F. App'x 865, 867 (11th Cir.
2017). While Defendant Hopkins does not appear to have consulted with his
supervisors prior to applying for the warrant, both the Sheriff’s Office and the
Solicitor’s Office had to sign off on the extradition request before it issued.
Defs.’ Statement of Material Facts ¶¶ 136-42. The Plaintiff asserts that these
entities’ review of the extradition request was cursory. But, in the Court’s view,
the mere fact that the Sheriff’s Office and the Solicitor’s Office signed off on
the request is strong evidence that Defendant Hopkins did not act with malice
in seeking the Plaintiff’s arrest and extradition.
81

82

The parties dispute whether the Plaintiff admitted guilt as a
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2. Whether Defendant Cobb County and Defendant Hopkins in
his official capacity are liable under § 1983
Municipalities are not vicariously liable for the constitutional violations
of its police officers under § 1983. 83 Instead, a plaintiff seeking to hold a
municipality liable under § 1983 must show that a municipal policy, custom,
or practice caused the constitutional deprivation.84 The Plaintiff claims that
she was extradited pursuant to the Defendant’s policy of arresting individuals
merely for using expletives.85 The Plaintiff’s § 1983 claims against Defendant
Cobb County necessarily fail because there is no underlying constitutional
violation. 86 The Plaintiff’s claims against Defendant Hopkins in his official
capacity fail because they are duplicative of the claims brought against
Defendant Cobb County itself.87 Therefore, summary judgment is warranted

condition of the nolle prosequi being entered. See supra note 37.

Hoefling v. City of Miami, 811 F.3d 1271, 1279 (11th Cir.
2016)(citing Monell v. Dep't of Social Servs., 436 U.S. 658, 693–94 (1978)).
83

Id. (citing City of Canton v. Harris, 489 U.S. 378 (1989); Weiland
v. Palm Beach County Sheriff's Office, 792 F.3d 1313, 1328 (11th Cir. 2015);
McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004)).
84

85

Compl. ¶¶ 161, 168.

86

Beshers v. Harrison, 495 F.3d 1260, 1264 n.7 (11th Cir. 2007)

(“We need not address the Appellant’s claims of municipal or supervisory
liability since we conclude no constitutional violation occurred.”); Vineyard v.
Cty. of Murray, Ga., 990 F.2d 1207, 1211 (11th Cir. 1993) (“Only when it is
clear that a violation of specific rights has occurred can the question of § 1983
municipal liability for the injury arise.”).
For the purposes of § 1983, suits against municipal officers are in
fact suits against the municipal entity itself. Brandon v. Holt, 469 U.S. 464,
471 (1985). When a municipal entity is a party to a § 1983 suit, claims against
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as to all § 1983 claims brought against Defendant Cobb County and against
Defendant Hopkins in his official capacity.
The Court further notes that the Plaintiff has not introduced a scintilla
of evidence at summary judgment to substantiate her initial allegation that
Defendant Cobb County has a policy of “arresting individuals… in retaliation
for the use of profanity.”88 In her response brief, the Plaintiff instead argues
that Defendant Cobb County has failed to train its police officers on what
constitutes protected speech.

89

In the Court’s view, the Plaintiff is

impermissibly attempting to amend her Complaint by offering this shifting
rationale for Defendant Cobb County’s liability in her response brief.90 In any
event, “[a] municipality’s culpability for a deprivation of rights is at its most
tenuous where a claim turns on a failure to train,”91 and “[a] pattern of similar
constitutional violations by untrained employees is ‘ordinarily necessary’ to
demonstrate deliberate indifference for purposes of failure to train.” 92 The
its agents in their official capacities are due to be dismissed. Cf. Bell v. Houston
Cty., Ga., No. 5:04-CV-390 (DF), 2006 WL 1804582, at *12 (M.D. Ga. June 27,
2006); Summers v. City of Dothan, Ala., No. 1:08CV-78MEF, 2009 WL 230128,
at *1 (M.D. Ala. Jan. 30, 2009).
88

Compl. ¶ 161.

Pl.’s Resp. to Defs.’ Mot. for Summ. J., at 10 (“Essentially, the
department has an obvious need to train about the application of the First
Amendment, to protect speech that does not involve a true threat[.]”).
89

90

See Dennis, 498 U.S. at 451.

91

Connick v. Thompson, 563 U.S. 51, 61 (2011).

92

Id., at 62.
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Plaintiff has not substantiated any such pattern of similar constitutional
violations. To the contrary, the only example of a constitutional violation
offered up by the Plaintiff is the Defendants’ handling of her own case. The
Plaintiff cites no precedent to support her argument that the alleged
constitutional violation in this case falls within the “narrow range of
circumstances” that could give rise to single-incident municipal liability. 93
Therefore, even if Defendant Hopkins had deprived the Plaintiff of her
constitutional rights, the Plaintiff has failed to produce evidence from which to
hold Defendant Cobb County liable under Monell and its progeny.
B. State Law Claims
The Plaintiff brings state law claims of false arrest, false imprisonment,
and malicious prosecution against Defendant Hopkins. The Plaintiff also
brings a malicious prosecution claim against Defendant Cobb County.
Defendant Hopkins asserts official immunity as a defense to all state law
claims brought against him in his individual capacity. Defendant Cobb County
asserts sovereign immunity as a defense to the malicious prosecution claim.
The Defendants also argue that the Plaintiff’s state law claims fail on the
merits. The Court turns now to Defendant Hopkins’ claim of official immunity.

93

See id., at 63-64.
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1. Whether Defendant Hopkins is Entitled to Official Immunity
“A suit against a public officer acting in his or her official capacity will
be barred by official immunity unless the public officer (1) negligently
performed a ministerial duty, or (2) acted with actual malice or an actual intent
to cause injury while performing a discretionary duty.” 94 There can be no
reasonable dispute that Defendant Hopkins was acting with discretion when
he investigated the case, submitted a warrant application to the magistrate
judge, and recommended to his superiors that the Plaintiff be extradited from
Alabama.95 Thus, in order to overcome Defendant Hopkins’ claim of official
immunity, the Plaintiff would need to show that Defendant Hopkins acted with
actual malice or with the intent to cause the Plaintiff harm. “In the context of
official immunity, actual malice requires a deliberate intention to do wrong
and denotes express malice or malice in fact.”96 The Plaintiff has not presented
a scintilla of evidence showing that Defendant Hopkins acted with actual
malice or the intent to cause injury. Indeed, the Plaintiff has conceded that

94

Tant v. Purdue, 278 Ga. App. 666, 668 (2006) (quoting Wanless

v. Tatum, 244 Ga. App. 882, 536 S.E.2d 308 (2000)).
95

Id. (“[W]e conclude that Officer Purdue was performing a

discretionary act when he concluded from his investigation that Tant had been
driving recklessly and under the influence and when he signed the arrest
warrant application to that effect.”).

Peterson v. Baker, 504 F.3d 1331, 1339 (11th Cir. 2007) (quoting
Adams v. Hazelwood, 271 Ga. 414, 415 (1999)) (internal quotation marks
96

omitted).

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Defendant Hopkins genuinely believed that he had probable cause to arrest
the Plaintiff.97 Absent any evidence of actual malice, Defendant Hopkins is
entitled to official immunity on all state law claims brought against him in his
individual capacity.
2. Whether Defendant Cobb County is Entitled to Sovereign
Immunity
Under Georgia law, the doctrine of sovereign immunity protects state
and local government entities from legal action unless immunity has been
specifically waived by the General Assembly.98 The Court is not aware of, and
the Plaintiff does not identify, any express waiver of sovereign immunity that
would apply to the Plaintiff’s state law claims. Therefore, Defendant Cobb
County is entitled to sovereign immunity.99
The state law claims against Defendant Hopkins in his official capacity
are also due to be dismissed because “any cause of action averred against a
municipal police officer in his official, as opposed to his personal/individual,
capacity is in reality suit against the municipality.”100 Defendant Hopkins is,

97

See Pl.’s Resp. to Defs.’ Statement of Material Facts ¶ 94.

98

Gilbert v. Richardson, 264 Ga. 744, 745 (1994) (citing Ga. Const.

of 1983, Art. I, Sec. II, Par. IX).

Cf. City of Atlanta v. Heard, 252 Ga. App. 179, 181 (2001)
(municipal defendant protected by sovereign immunity from the plaintiff’s
defamation, false arrest, and malicious prosecution claims).
99

Conley v. Dawson, 257 Ga. App. 665, 667 (2002) (quoting Pearson
v. City of Atlanta, 231 Ga. App. 96, 101(5) (1998)) (punctuation omitted).
100

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therefore, also entitled to sovereign immunity on the Plaintiff’s state law
claims brought against him in his official capacity.
Because the Court has concluded that Defendant Hopkins and
Defendant Cobb County are immune from suit, it need not reach the merits of
the Plaintiff’s claims. The Court notes, however, that the record evidence
cannot plausibly establish that Defendant Hopkins lacked probable cause or
acted with malice. Failure to establish these elements would be fatal to the
Plaintiff’s state law claims even if the Plaintiff could overcome the Defendants’
immunity defenses.
IV.

Conclusion

For the reasons stated above, the Defendants’ Motion for Summary
Judgment [Doc. 65] is GRANTED.
SO ORDERED, this 26 day of July, 2019.

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

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