McClam v. City of Riverdale et al

Filing 34

ORDER granting 27 Motion to Dismiss. This action is DISMISSED in its entirety without prejudice as to Defendant Threat for failure to effect service within the time allotted by Fed. R. Civ. P. 4(m). The remainder of the action is DISMISSED with prejudice. Signed by Judge Thomas W. Thrash, Jr. on 08/29/2024. (bmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
LARRY MCCLAM,
Plaintiff,
v.
CITY OF RIVERDALE, et al.,

CIVIL ACTION FILE
NO. 1:23-CV-4111-TWT

Defendants.
OPINION AND ORDER
This is a civil rights action. It is before the Court on the Defendants City
of Riverdale, Todd Spivey, and Kirby Threat’s Motion to Dismiss [Doc. 27]. For
the reasons set forth below, the Defendants’ Motion to Dismiss [Doc. 27] is
GRANTED.
I.

Background 1

This action arose from the Plaintiff’s arrest, pursuant to a warrant, for
the crime of removing a candidate’s campaign signs. (Am. Compl. ¶¶ 8, 13-14).
The Plaintiff alleges the warrant was based on an administrative statement
he signed as an employee of the Defendants. (Id. ¶¶ 9-13). In September 2021,
the Plaintiff worked as a police officer for the City of Riverdale. (Id. ¶ 5).
Defendant Kirby Threat was Captain of Internal Affairs and Defendant Todd
Spivey was Chief of Police for the Riverdale Police Department. (Id. ¶ 6). As

The Court accepts the facts as alleged in the Amended Complaint as
true for purposes of the present Motion to Dismiss. Wildling v. DNC Servs.
Corp., 941 F.3d 1116, 1122 (11th Cir. 2019).
1

Chief of Police, Spivey served as the final policymaker over his decisions in
internal affairs investigations for Riverdale police officers, and his decisions
were not reviewed. (Id. ¶ 7). The City and Spivey asked Threat to investigate
the Plaintiff for the crime of removing campaign signs and, as part of the
investigation, Threat asked the Plaintiff to fill out a Riverdale Police
Department Employee Statement (“Statement”). (Id. ¶¶ 8-9). Printed on the
Statement is the assurance that “[a]dministrative statements made by
employees and evidence gained by reasons of such statements may not be used
against the employee in criminal proceedings involving the employee except in
cases of perjury.” (Id. at 13).
In the Statement, the Plaintiff wrote that on September 7, 2021, at 6:30
AM, he was driving to work when he observed three of his own campaign signs
defaced, so he stopped and pulled up the signs. (Id.). The Plaintiff stated that
he was in his patrol vehicle when he took the signs and that he “felt targeted
by the Clarkston Police Dept because of it.” (Id.). Threat turned over the
Plaintiff’s Statement to Spivey, who provided the Statement to a police officer
from the City of Clarkston. (Id. ¶ 13). The officer then used the Plaintiff’s
statement to secure a warrant for his arrest based on his admission in the
Statement that he had been in the City of Clarkston at 6:30 AM. (Id.). The
Plaintiff was then arrested on the warrant, but the charges were subsequently
dismissed. (Id. ¶ 14). As a result of his arrest, the Plaintiff was demoted and
2

placed on “desk duty.” (Id. ¶¶ 16-17). The Plaintiff alleges that, as a result of
the Defendants’ actions, he suffered “humiliation and embarrassment and loss
of income in the amount of $100,000” and that “[b]ecause of the reckless
designed [sic] and callous indifference to Plaintiff’s constitutional right,
Defendants Threat and Spivey are liable to Plaintiff for $250,000 in punitive
damage.” (Id. ¶¶ (18-19). The Plaintiff also seeks attorney’s fees. (Id. ¶ 20).
As best the Court can discern, the Plaintiff asserts claims under 42
U.S.C. § 1983 for “illegal arrest” and the use of “compelled testimony” (Count
One); misrepresentation, as to Defendants Threat and Spivey, (Count Two);
violations of the Georgia Constitution (Count Three); punitive damages and
attorney’s fees (Count Four); and malicious prosecution (Count Five). (Id.
¶¶ 1-52). In lieu of an answer, the Defendants filed the Motion to Dismiss that
is presently before the Court. [Doc. 27].
II.

Legal Standards

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. Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009); Fed. R. Civ. P. 12(b)(6). 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.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 556 (2007). In ruling on a motion to dismiss, the court
3

must accept the facts pleaded in the complaint as true and construe them in
the light most favorable to the plaintiff. See Quality Foods de Centro Am., S.A.

v. Latin Am. 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 Cir. 1994) (noting that at the pleading stage, the plaintiff
“receives the benefit of imagination”). Generally, notice pleading is all that is
required for a valid complaint. See Lombard’s, Inc. v. Prince Mfg., Inc., 753
F.2d 974, 975 (11th Cir. 1985). Under notice pleading, the plaintiff need only
give the defendant fair notice of the plaintiff’s claim and the grounds upon
which it rests. See Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Twombly,
550 U.S. at 555).
III.

Discussion

In their Motion to Dismiss, the Defendants argue that all of the
Plaintiff’s claims should be dismissed. First, they contend that to the extent
the Plaintiff attempts to assert a Monell 2 claim against the City, that claim
fails because the Plaintiff has not identified a policy or custom that violated
his constitutional rights. (Defs.’ Mot. to Dismiss, at 3, 7-10). Second, Spivey
and Threat argue that they are entitled to qualified immunity on the Plaintiff’s
federal claims and official immunity on his state law claims. (Id. at 3, 11-18).
Third, the Defendants assert that the Plaintiff fails to state a claim under the

2

Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).
4

Georgia Constitution or for misrepresentation under state law. (Id. at 3-4, 1516). Fourth, Threat argues that the Court lacks jurisdiction over him because
he was not properly served and, finally, the Defendants contend that if the
Plaintiff’s underlying claims are dismissed, his claims for punitive damages
and attorney’s fees should be dismissed as well. (Id. at 4, 18-20).
The Plaintiff responds and attaches an incident report from the
Clarkston Police Department’s (“CPD”) investigation of the campaign sign
theft. (Pl.’s Resp. to Mot. to Dismiss, Ex. 1). The Plaintiff argues that the
incident report demonstrates that the CPD did not have probable cause to
arrest the Plaintiff until Defendants Threat and Spivey turned over his
Statement. (Id. at 3-4). The Plaintiff also contends that he has stated a claim
under Garrity v. New Jersey, 385 U.S. 493 (1967) based on the alleged use of
the Statement to procure a warrant. (Id. at 4). The Plaintiff appears to argue
that he states a Garrity claim because he faced penalties with his employer if
he did not sign the Statement. (See id. at 6-14).
Next, the Plaintiff asserts that neither Threat nor Spivey are entitled to
qualified immunity because they used their positions to deceive the Plaintiff
into waiving his Garrity rights before turning his Statement over to CPD. (Id.
at 14-15). The Plaintiff also appears to argue that he has stated a malicious
prosecution claim and that the Defendants lack immunity as to this claim as
well because they caused his unlawful arrest. (See id. at 15-18). Additionally,
5

the Plaintiff appears to assert that the Defendants lack immunity as to his
state law claims because they committed fraudulent acts and that his claim
under the Georgia Constitution is viable under White v. State, 305 Ga. 111
(2019) and Long v. Jones, 208 Ga. App. 798 (1993). (Id. at 18-21). Finally, the
Plaintiff concedes that he has not timely served Defendant Threat but asks the
Court to permit him to serve Threat out of time. (Id. at 19). 3
As an initial matter, as the Plaintiff concedes, the Court lacks
jurisdiction over Defendant Threat because the Plaintiff never properly served
him. The Court will not permit the Plaintiff to serve Threat at this late stage.
This action was filed nearly a year ago, on September 13, 2023, and the
Plaintiff admitted he had not properly served Threat in his response to the
Motion to Dismiss filed on April 30, 2024. In other words, the Plaintiff has had
plenty of time to correct his procedural error. Nor has the Plaintiff articulated
good cause for his failure to properly serve Threat. See Fed. R. Civ. P. 4(m)
(providing that the district court “must dismiss the action without prejudice
against that defendant” that the Plaintiff has failed to serve within 90 days
after the complaint is filed, unless “the plaintiff shows good cause for the
failure.”). The Court has no discretion, then, as the Plaintiff contends, and
must dismiss Defendant Threat from this action without prejudice. Williams

The Court has also read and considered the Defendants’ reply brief.
(Doc. 33).
6
3

v. Robbin, 153 F. App’x 574, 576 (11th Cir. 2005) (“[W]here a plaintiff fails to
perfect service of process . . . , dismissal is mandatory unless the plaintiff can
show good cause.”). The Court will address each of the Plaintiff’s remaining
claims in turn.
A. Plaintiff’s 42 U.S.C. § 1983 Claims against Spivey
The Eleventh Circuit recognizes a claim under the Fourth Amendment
against a non-arresting officer who causes the unlawful arrest of another.

Jordan v. Mosley, 487 F.3d 1350, 1354 (11th Cir. 2007). However, a claim for
false arrest under § 1983 cannot lie where the arrest was made pursuant to a
warrant. Carter v. Gore, 557 F. App’x 904, 906 (11th Cir. 2014). Instead, the
proper claim is for malicious prosecution, “which is the constitutional tort
available to people who have been wrongfully arrested pursuant to legal
process.” Id. A malicious prosecution claim can lie where an officer secures an
arrest warrant without probable cause. Id. at 906-07.
In Garrity, the Supreme Court held that public employees cannot be
coerced into compromising their rights under the Fifth Amendment by threats
of termination or other sanctions. Garrity, 385 U.S. at 496. Moreover, the
Eleventh Circuit has held that to state a claim under Garrity, “the officer must
have in fact believed the statements to be compelled on threat of loss of job and
this belief must have been objectively reasonable.” U.S. v. Vangates, 287 F.3d
1315, 1322 (11th Cir. 2002) (quotation marks, citation, and brackets omitted).
7

“Qualified

immunity

protects

government

officials

performing

discretionary functions from suits in their individual capacities unless their
conduct violates clearly established statutory or constitutional rights of which
a reasonable person would have known.” Gates v. Khokhar, 884 F.3d 1290,
1296 (11th Cir. 2018) (quotation marks omitted). “A defendant who asserts
qualified immunity has the initial burden of showing he was acting within the
scope

of

his

discretionary

authority

when

he

took

the

allegedly

unconstitutional action.” Id. at 1297. Once that is shown (and it is not
challenged here), “the burden shifts to the plaintiff to establish that qualified
immunity is not appropriate by showing that (1) the facts alleged make out a
violation of a constitutional right and (2) the constitutional right at issue was
clearly established at the time of the alleged misconduct.” Id. The Court has
discretion to decide these issues in either order depending on the
circumstances, but the Plaintiff must demonstrate both prongs to survive a
qualified-immunity defense. See Gaines v. Wardynski, 871 F.3d 1203, 1208
(11th Cir. 2017). Additionally, “it is proper to grant a motion to dismiss on
qualified immunity grounds when the complaint fails to allege the violation of
a clearly established constitutional right.” Corbitt v. Vickers, 929 F.3d 1304,
1311 (11th Cir. 2019) (quotation marks and citation omitted).
The Plaintiff has failed to state any claims under § 1983 against
Defendant Spivey because he is entitled to qualified immunity under the facts
8

alleged in the Amended Complaint. As an initial matter, the Plaintiff has not
challenged the Defendants’ assertions that they were acting within the scope
of their discretionary authority in investigating the Plaintiff’s alleged
misconduct. See Gates, 884 F.3d at 1297. Thus, the burden shifts to the
Plaintiff to demonstrate that the facts alleged make out a violation of a clearly
established constitutional right. See id.
1. Malicious Prosecution under the Fourth Amendment
First, the Plaintiff’s allegations with regard to his malicious prosecution
claim do not establish a violation of a clearly established constitutional right,
even when viewed in the light most favorable to the Plaintiff. Gates, 884 F.3d
at 1296; Quality Foods de Centro Am., S.A., 711 F.2d at 994-95. He alleges that
Defendant Threat coerced him into making the Statement knowing that it had
been “secured in violation of Plaintiff’s 5th and 14th Amendment rights” and
would be used for probable cause for an arrest warrant, and that Defendant
Spivey knew this as well. (Am. Compl. ¶¶ 34-35). The Plaintiff also alleges that
without his Statement, there would have been no probable cause for the arrest
warrant to issue, and that the criminal prosecution against him ultimately
ended without his conviction. (Id. ¶¶ 37-38). The problem with the Plaintiff’s
claim is that Spivey neither instituted nor continued the resulting criminal
prosecution of the Plaintiff. See Wood v. Kesler, 323 F.3d 872, 882-83 (11th Cir.
2003). Because the Plaintiff has failed to establish one of the elements of his
9

malicious prosecution claim, he has not carried his burden of establishing a
violation of a clearly established constitutional right. Gates, 884 F.3d at 1296.
Defendant Spivey is therefore entitled to qualified immunity as to this claim.
2. Garrity Claim under the Fifth Amendment
Second, the Plaintiff has also failed to establish a violation of a clearly
established constitutional right with regard to his Garrity claim. In order for a
compelled statement to fall within Garrity’s ambit, the employee must have
“subjectively believed that he would lose his job if he refused to answer
questions and . . . his belief [must have been] objectively reasonable.” United

States v. Smith, 821 F.3d 1293, 1303 (11th Cir. 2016) (quotation marks and
citation omitted). “[W]here there is no direct threat, the mere possibility of
future discipline is not enough to trigger Garrity protection.” Id. at 1302. Here,
the Plaintiff alleges that he “was aware he faced disciplinary action, up to and
including dismissal if he did not” provide the Statement, (Am. Compl. ¶ 12),
but he does not allege that Spivey, through Threat, threatened to terminate
him if he did not provide the Statement. Nor does the Statement itself mention
any threat of discipline if the form is not completed. Nonetheless, the Court
finds that, under the circumstances of the investigation and viewing the facts
in the light most favorable to the Plaintiff, the Plaintiff has properly alleged
that his belief he would be terminated if he did not provide the Statement was
objectively reasonable. It is reasonable to assume that the Plaintiff faced
10

termination if he did not cooperate with the internal investigation given that
he was the subject of a criminal investigation, and the Plaintiff was aware of
that investigation.
However, taking into consideration the Statement itself and the warrant
in addition to the Amended Complaint, the Plaintiff has not alleged that his
Statement was used to incriminate him such that a Garrity violation took
place. Specifically, the Plaintiff alleges that a CPD officer secured a warrant
based on his statement “that he had been in the City of Clarkston at 6:30.”
(Am. Compl. ¶ 13). But the warrant itself states that the Plaintiff was “id’d by
video and police car he was driving. Clarkston has confirmed with Riverdale
that D was not on duty at the time of the incident.” (Warrant, Doc. 27-2, at 2). 4
And although the Court is obliged to accept the facts in the Amended
Complaint as true, “when the exhibits contradict the general and conclusory
allegations of the pleading, the exhibits govern.” Crenshaw v. Lister, 556 F.3d
1283, 1292 (11th Cir. 2009) (quotation marks and citation omitted); see also

Vandiver v. Meriwether Cnty., Ga., 325 F. Supp. 3d 1321, 1325 n.2 (N.D.Ga.
2018) (“Despite the Court's obligation to accept the facts in a complaint as true,

The Defendants attached the Plaintiff’s arrest warrant to their Motion
to Dismiss. The Court may consider the warrant because the Plaintiff
references it in his Amended Complaint, it is central to his claims, the
Defendants attached it to their Motion to Dismiss, and the Plaintiff has not
disputed the warrant’s contents or its authenticity. Day v. Taylor, 400 F.3d
1272, 1276 (11th Cir. 2005).
11
4

it is not required to ignore specific, contradictory evidence appearing in an
undisputed document properly before it.”). It is apparent from the warrant that
the video of the Plaintiff taking the campaign signs is what gave the CPD
officer probable cause for the warrant, contrary to the Plaintiff’s allegation that
“[a]bsent the coerced statement, [he] would not have been arrested.” (Am.
Compl. ¶ 15). Moreover, as the Plaintiff’s superior officers, Spivey and Threat
did not need the Plaintiff’s Statement to confirm whether he was on duty at
the time and on the date of the sign-stealing incident. Thus, even assuming the
Plaintiff’s Statement was protected under Garrity (and it appears that it was),
he has still failed to establish a clear violation of constitutional law because
the facts and evidence properly before the Court show that the Statement here
was not used to procure the Plaintiff’s arrest. See Gates, 884 F.3d at 1296.
Defendant Spivey is therefore entitled to qualified immunity as to the
Plaintiff’s Garrity claim.
B. Plaintiff’s Monell Claim Against the City
Under Monell, a local government body is liable under § 1983 when the
execution of its policy or custom constitutes the “moving force” that inflicts
injury upon an individual in violation of her constitutional rights. Monell, 436
U.S. at 694. To state a claim for § 1983 liability against a municipality or other
local government entity, a plaintiff must allege plausible facts showing (1) that
her constitutional rights were violated, (2) that the municipality had a custom
12

or policy that constituted deliberate indifference to her constitutional rights,
and (3) that the custom or policy caused her constitutional violation. McDowell

v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). A plaintiff “has two methods
by which to establish a [City’s] policy: identify either (1) an officially
promulgated [City] policy or (2) an unofficial custom or practice of the [City]
shown through the repeated acts of a final policymaker for the [City].” Grech

v. Clayton Cnty., Ga., 335 F.3d 1326, 1329 (11th Cir. 2003) (citations omitted).
The present case does not implicate an officially promulgated City policy, so
only the unofficial custom or practice inquiry is relevant here.
The Plaintiff here fails to state a Monell claim because he does not
identify any unofficial policy or practice of the City of Riverdale that caused
his constitutional rights to be violated. The Plaintiff alleges only that
Defendant Spivey was the “final policymaker” for the City and that his actions
investigating officer misconduct were not reviewed. (Am. Compl. ¶¶ 6-7). To
the extent the Plaintiff’s Monell claim hinges on a purported custom of
Defendant Spivey’s investigative decisions being unreviewed, that is only a
tangential connection to the conduct the Plaintiff claims violated his
constitutional rights here. See Cuesta v. Sch. Bd. of Miami-Dade Cnty., Fla.,
285 F.3d 962, 967 (11th Cir. 2002) (“It is not sufficient for a government body’s
policy to be tangentially related to a constitutional deprivation.”). Moreover, a
single, isolated incident is insufficient to establish a custom or practice of
13

deliberate indifference to constitutional rights. Doe v. Sch. Bd. of Broward

Cnty., Fla., 604 F.3d 1248, 1263 n.11 (11th Cir. 2010). Therefore, even viewing
the Amended Complaint in the light most favorable to the Plaintiff, he has
failed to state a plausible Monell claim. This claim will be dismissed.
C. Plaintiff’s Misrepresentation Claim
Under Georgia law, a fraudulent misrepresentation claim has five
elements: (1) the defendant made false representations; (2) the defendant knew
the representations were false at the time (scienter); (3) the defendant made
the representations intending to deceive the plaintiff; (4) the plaintiff
justifiably

relied

upon

such

representations;

and

(5)

the

defendant's misrepresentations resulted in damages. McLeod v. Costco

Wholesale Grp., 369 Ga. App. 717, 720 (2023).
The Plaintiff’s misrepresentation claim fails for the simple reason that
the arrest warrant itself contradicts the Plaintiff’s allegation that his
Statement was used to procure the warrant. The warrant states that the
sign-stealing incident was caught on video and that “Clarkston” confirmed
with “Riverdale” that the Plaintiff was not on duty or acting for the City of
Riverdale at the time the incident occurred. (See Warrant, Doc. 27-2, at 2). The
Plaintiff alleges that his Statement is what informed the CPD that he was in
the area at the time the signs were stolen, but the warrant’s reference to video
recording of the incident belies that assertion. Moreover, the Plaintiff cannot
14

amend his complaint by attaching the CPD incident report to the response to
his Motion to Dismiss in order to bolster his claims, Jallali v. Nova Se. Univ.,

Inc., 486 F. App’x 765, 767 (11th Cir. 2012), and the Court is skeptical that it
can consider the incident report since it was not referenced in the Amended
Complaint. Perplexingly, however, the incident report cited by the Plaintiff
adds further support for the conclusion that no misrepresentation took place.
The incident report indicates that the Plaintiff was identified by Threat based
on his patrol car in the video of the incident before the Plaintiff made his
Statement. (See Incident Report, Doc. 32-1, at 1). Therefore, even considering
the incident report, the Plaintiff has failed to state a claim that any
misrepresentation occurred when the Amended Complaint and warrant are
viewed in the light most favorable to the Plaintiff. See Quality Foods de Centro

Am., S.A., 711 F.2d at 994-95.
D. Plaintiff’s Claim Under Ga. Const. Art. I, § 1, ¶ XVI
The

Georgia

Constitution

has

its

own

protection

against

self-incrimination, providing that “[n]o person shall be compelled to give
testimony tending in any manner to be self-incriminating.” Ga. Const. Art. I,
§ 1, ¶ XVI. The Georgia Court of Appeals recently reiterated its longstanding
precedent that “Georgia law contains no equivalent to 42 U.S.C. § 1983, which
gives a claim against a state officer individually for certain unconstitutional
acts . . . [b]ased on this authority, there is no viable private cause of action
15

against [an officer] for his alleged constitutional violations.” Collins v. Schantz,
369 Ga. App. 282, 287 (2023) (citing Howard v. Miller, 222 Ga. App. 868, 871
(1996) (quotation marks omitted). The Georgia Supreme Court has previously
reiterated the same, stating that “this Court and the Court of Appeals have
held that state employees cannot be sued individually.” DeLoach v. Elliot, 289
Ga. 319, 321 (2011). The Plaintiff’s claim under the Georgia Constitution is
therefore due to be dismissed. While the Court acknowledges that the Georgia
Court of Appeals impliedly condoned a Bivens-like claim under the Georgia
Constitution in Long, the case cited by the Plaintiff, the Court is bound by

DeLoach on this matter as it is a decision of the Georgia Supreme Court.
Zucker for BankUnited Fin. Corp. v. U.S. Specialty Ins. Co., 856 F.3d 1343,
1349 (11th Cir. 2017). This is especially so where Collins is on point and in
accord with DeLoach.
E. Plaintiff’s Claim for Punitive Damages and Attorney’s Fees
“A prerequisite to any award of attorney fees under OCGA § 13-6-11 is
the award of damages or other relief on the underlying claim. Similarly,
punitive damages under OCGA § 51-12-5.1 cannot be awarded where no actual
damages are awarded.” Morris v. Pugmire Lincoln Mercury, Inc., 283 Ga. App.
238, 241 (2007) (quotation marks and citations omitted). Likewise, only
prevailing parties are entitled to attorney’s fees in § 1983 actions. 42 U.S.C.
§ 1988(b). Because the Court is dismissing the entirety of the Plaintiff’s merits
16

claims, his attorney’s fees and punitive damages claims necessarily fail as well.
IV.

Conclusion

For the foregoing reasons, the Defendants’ Motion to Dismiss [Doc. 27]
is GRANTED. This action is DISMISSED in its entirety without prejudice as
to Defendant Threat for failure to effect service within the time allotted by Fed.
R. Civ. P. 4(m). The remainder of the action is DISMISSED with prejudice.

Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1169 (11th Cir. 2014) (providing
that a dismissal with prejudice “is fitting for failure to state a claim” and that
dismissal without prejudice “is appropriate for jurisdictional decisions.”).
SO ORDERED, this

29th

day of August, 2024.
______________________________
THOMAS W. THRASH, JR.
United States District Judge

17