Marx v. Forsyth County Sheriff's Office et al

Filing 106

ORDER that Defendants collective Motion to Dismiss 93 and Defendant Littles separate Motion to Dismiss 94 are both GRANTED. The Third Amended Complaint is DISMISSED and the clerk is directed to close the case. Signed by Judge Richard W. Story on 08/01/2016. (rsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION
JACQUELINE DENISON,
Executrix of the Estate of Dennis
Ronald Marx,
Plaintiff,
v.
DETECTIVE THOMAS T.
LITTLE, individually, SGT.
ROBERT HEAGERTY,
individually, SGT. J.B. MOORE,
individually, and OFFICER N.
SPRAGUE, individually,
Defendants.

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CIVIL ACTION NO.
2:13-CV-175-RWS

ORDER
This case comes before the Court on: (1) a Motion to Dismiss [93] filed
by Defendants Thomas Little, Robert Heagerty, J.B. Moore, and N. Sprague;
and (2) a second Motion to Dismiss [94] filed by Defendant Little alone. After
reviewing the record, the Court enters the following Order.
Background
I.

Procedural Background
The original Plaintiff, Dennis Marx, filed this case over two years ago,

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on August 2, 2013, asserting claims under 42 U.S.C. § 1983. The claims arise
out of events that took place during the execution of a search warrant and two
arrest warrants against Mr. Marx. The original Complaint named thirty
Defendants including Forsyth County, Forsyth County Sheriff’s Office, and a
number of Forsyth County law enforcement officers, but Mr. Marx narrowed
this list through two amendments to the Complaint.
Mr. Marx passed away on June 6, 2014. Following his death, Jacqueline
Denison, Mr. Marx’s mother, filed a Suggestion of Death and Motion for
Substitution, which the Court granted on March 13, 2015. (Dkt. [82].) Since
then, Jacqueline Denison has acted as Plaintiff in this case. On June 11, 2015,
she filed a Motion for Leave to File Amended Complaint [85].
In ruling on that motion, the Court warned Plaintiff that several aspects
of her Proposed Third Amended Complaint were deficient. (See Dkt. [91] at
10.) For example, the Court pointed out that the Proposed Third Amended
Complaint used the term “Defendants” generically in all but two paragraphs,
leaving doubt as to which claims Plaintiff was pursuing against which
Defendants. (Id.) The Court also pointed out that this shortcoming—along
with several others— made the Proposed Third Amended Complaint
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characteristic of a shotgun pleading. (Id.) Despite warning Plaintiff that it
could deny Plaintiff’s motion on this ground alone, the Court considered
Plaintiff’s motion on the merits, ultimately granting it in part and denying it in
part. (Id. at 22.) The Court gave Plaintiff leave to amend, but on very narrow
grounds. She was to include only two claims: (1) her Fourteenth Amendment
claim against Sergeant Heagerty in his individual capacity; and (2) her Fourth
Amendment claim against Officer Sprague, Sergeant Heagerty, Sergeant
Moore, and Deputy Thompson in their individual capacities. (Id. at 21-22.)
Following this Order, Plaintiff filed her Third Amended Complaint naming
three Defendants that the Court had given her leave to include—Sergeant
Heagerty, Sergeant Moore, and Officer Sprague—but also naming Detective
Little, whom the Court did not give her leave to include. (See Third Am.
Compl., Dkt. [92].)
II.

Allegations in Plaintiff’s Third Amended Complaint
On or about August 10, 2011, Defendants1 were sent to 1405 Lakeside

Trail in Cumming, Georgia, to execute one search warrant and two arrest
1

As she did in the Proposed Third Amended Complaint, Plaintiff uses the term
“Defendants” generically throughout her Third Amended Complaint. In the limited
instances where she names specific Defendants, the Court will include their names.
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warrants against Mr. Marx. (Third Am. Compl., Dkt. [92] ¶ 5.) Defendants did
not, however, follow the proper procedure required to execute their warrants.
(Id. ¶ 6.) Specifically, Defendants did not knock or identify themselves to Mr.
Marx and Defendant Heagerty failed to show Mr. Marx the warrants or state
Defendants’ official purpose in entering Mr. Marx’s residence. (Id. ¶¶ 6-7.)
Upon entering Mr. Marx’s home, Defendants ordered Mr. Marx to place
his hands above his head and Mr. Marx complied. (Id. ¶ 8.) Defendants
Sprague, Heagerty, and Moore then used excessive force to detain Mr. Marx
and beat him for non-compliance even though he was not resisting arrest. (Id. ¶
18.) As a result of these Defendants’ conduct, Mr. Marx sustained serious
injuries. (Id.) Defendants did not read Mr. Marx his Miranda rights or inform
him he was under arrest while taking him into custody. (Id. ¶ 10.)
During their search, Defendants used flash bang grenades and shot guns
to breach various points of Mr. Marx’s residence, causing extensive and
unnecessary damage to his property. (Id. ¶ 11.) They also: failed to follow
proper evidentiary procedure while handling evidence recovered during the
search; illegally confiscated items on Mr. Marx’s property that were not
outlined in the search warrant; and failed to properly secure Mr. Marx’s
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residence when they left. (Id. ¶¶ 12-14.)
Based on these allegations, Plaintiff’s Third Amended Complaint
enumerates the following claims: violation of the Fourth and Fourteenth
Amendments under 42 U.S.C. § 1983 (Count I); punitive damages (Count II);
and attorneys’ fees and damages (Count III). (Id. ¶¶ 16-29.) Defendants now
collectively seek to dismiss each of those claims for failure to state a claim,
failure to obey a court order, and failure to prosecute in the name of the real
party in interest. (Defs.’ Br. in Supp. of Mot. to Dismiss, Dkt. [93-1].)
Defendant Little separately seeks dismissal for failure to serve. (Def. Little’s
Br. In Supp. of Mot. to Dismiss, Dkt. [94-1].)
Discussion
I.

Defendant Little’s Motion to Dismiss [94]
Defendant Little argues that he must be dismissed because Plaintiff has

failed to properly serve him. Indeed, under Federal Rule of Civil Procedure
(“Rule”) 4(m), a defendant that is not served within 90 days after the complaint
is filed is due to be dismissed. See FED. R. CIV. P. 4(m) Here, dismissal is
appropriate because the docket reflects that Defendant Little has not yet been
served even though the 90 day window for service passed long ago.
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What is more, Plaintiff has failed to file a response to Defendant Little’s
motion. While the docket indicates that Plaintiff’s brief in opposition to
Defendants’ collective Motion to Dismiss [93] also serves as a response to
Defendant Little’s individual Motion to Dismiss [94], the face of that brief
reveals that it is responsive to only Defendants’ collective Motion to Dismiss
[93]. It does not address Defendant Little’s argument that he should be
dismissed for failure to serve, nor does it even acknowledge that Defendant
Little filed a separate motion. (See Pl.’s Br. in Opp’n to Defs.’ Mot. to
Dismiss, Dkt. [96].) Thus, Defendant Little’s Motion to Dismiss [94] is
deemed unopposed and is GRANTED. All claims against Defendant Little are
therefore DISMISSED.2
II.

Defendants’ Motion to Dismiss [93]
All four Defendants collectively move to dismiss Plaintiff’s Third

Amended Complaint on four grounds. First, Defendants argue that Plaintiff
does not allege sufficient facts to state claims for Fourth or Fourteenth

2

The Court notes that even if Defendant Little had been served, he would still
be dismissed because the Court expressly denied Plaintiff leave to include Defendant
Little in the Third Amendment Complaint, yet Plaintiff included him anyways. (See
Dkt. [91] at 22-23.)
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Amendment violations under Section 1983. Second, Defendants argue that
they are entitled to qualified immunity. Third, Defendants argue that Plaintiff’s
Third Amended Complaint fails to comply with the Court’s Order granting
Plaintiff’s Motion for Leave to File an Amended Complaint [85]. And finally,
Defendants argue that Plaintiff did not bring the Third Amended Complaint in
the name of the real party in interest. The Court need not reach all of these
arguments as it finds that Plaintiff’s Third Amended Complaint is due to be
dismissed for failure to comply with a Court Order.
In its January 28, 2016 Order (“January Order”), the Court expressly
noted that the proposed Third Amended Complaint contained many features of
a shotgun pleading. (Dkt. [91] at 10 n.4.) Most concerning was how Plaintiff
used “Defendants” generically, leaving unclear how each claim fit with each
individual Defendant. (Id.) The Court noted, only two paragraphs connected
specific Defendants with specific claims. (Id. at 20-21.) After quoting those
two paragraphs, the Court granted leave to amend, but instructed Plaintiff to
include only: “(1) her Fourteenth Amendment claim against Sergeant Heagerty
in his individual capacity; and (2) her Fourth Amendment claim against Officer
Sprague, Sergeant Heagerty, Sergeant Moore, and Deputy Thompson in their
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individual capacities.” (Id. at 21-22.)
Despite the Court’s instructions, Plaintiff filed the Third Amended
Complaint without correcting the problems identified. First, the Third
Amended Complaint contains eleven background paragraphs that are nearly
identical to those in the proposed version. (Third Am. Compl., Dkt. [92] ¶¶ 515.) Like the proposed version, these paragraphs refer to “Defendants”
generically in all but two places. (Id.) Second, the Third Amended Complaint
contains a single Section 1983 count, alleging Fourth and Fourteenth
Amendment violations against all Defendants. (Id. ¶¶ 16-19.) This is despite
the Court’s instructions to limit all Fourteenth Amendment violations to
Sergeant Heagerty. (Dkt. [91] at 21.) By failing to make the necessary
changes before filing the Third Amended Complaint and by expanding the
scope of the Fourteenth Amendment claim beyond Defendants that she was
given leave to include, Plaintiff violated the Court’s January Order [91].3 For
this reason, the court finds that the Third Amended Complaint is due to be

3

As discussed in Part I, supra, Plaintiff also violated the Court’s January Order
by naming Defendant Little in the Third Amended Complaint when the Court
expressly denied her leave to do so. (See Dkt. [91] at 22-23 (“Plaintiff is DENIED
leave to include any other defendants or claims in the Third Amended Complaint.”).)
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dismissed. See Local Rule 41.3(A)(2) (“The court may, with or without notice
to the parties, dismiss a civil case for want of prosecution if . . . [a] plaintiffs
attorney shall, after notice . . . fail or refuse to obey a lawful order of the court
in the case.”); Meduty v. Georgia Dept. of Admin. Servs., 614 F. App’x 401,
402 (11th Cir. 2015) (holding that the District Court did not abuse its discretion
in sua sponte dismissing a Section 1983 action for failure to obey a court order
under Local Rule 41.3(A)(2)); Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.
1989) (“While dismissal is an extraordinary remedy, dismissal upon disregard
of an order, especially where the litigant has been forewarned, generally is not
an abuse of discretion.”).
Although, typically, the Court would grant Plaintiff an additional
opportunity to amend her complaint, it declines to do so in this case for several
reasons. First, in their brief, Defendants include an entire section arguing that
the Third Amended Complaint “constitutes an impermissibly vague ‘shotgun’
pleading and should be dismissed for failure to cure this defect.” (Defs.’ Br. in
Supp. of Mot. to Dismiss, Dkt. [93-1] at 16-18.) There, Defendants identify the
Court’s warnings about the proposed Third Amended Complaint’s resemblance
to a shotgun pleading and argue that it should be dismissed for failure to heed
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those warnings. Yet Plaintiff fails to respond to this argument at all. It is true
that Plaintiff does respond to Defendants’ separate argument for dismissal for
failure to obey a court order under Rule 41(b), but even there, Plaintiff’s
response is only a single paragraph that in no way addresses her failure to
correct the proposed version of the Third Amended Complaint before
submitting it. (See Pl.’s Br. in Opp’n to Defs.’ Mot. to Dismiss, Dkt. [96] at
7.)
Second, the Court very explicitly identified the deficiencies in the
proposed Third Amended Complaint. (See Dkt. [91] at 10 n.10 (explaining,
with multiple citations, the features of a shotgun pleading and warning that the
Court could deny Plaintiff leave to amend on that ground alone).) Still,
Plaintiff failed to remove the features of a shotgun pleading; named Detective
Little, a Defendant that the Court denied her leave to include; and raised both
the Fourth and Fourteenth Amendment claims against all Defendants. (See
Third Am. Compl., Dkt. [92].) Because of this, the Court has little confidence
that giving Plaintiff another opportunity to amend would cure the problem.
Finally, there is a fine line between providing leniency to one party and
causing prejudice to the other. The Court recognizes that this is the first time
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that Plaintiff has filed an amended complaint under current counsel, but this
case is now nearly three years old. With each opportunity to amend,
Defendants are forced to incur additional expenses. In light of the Court’s
explicit instructions and Plaintiff’s failure to follow those instructions, the
Court is not inclined to expose Defendants to the costs of another amendment.
Therefore, Defendants’ Motion to Dismiss [93] is GRANTED and Plaintiff’s
Third Amended Complaint is DISMISSED for failure to obey the Court’s
January Order.
Conclusion
For the foregoing reasons, Defendants’ collective Motion to Dismiss [93]
and Defendant Little’s separate Motion to Dismiss [94] are both GRANTED.
The Third Amended Complaint is DISMISSED and the clerk is directed to
close the case.
SO ORDERED, this 1st day of August, 2016.

________________________________
RICHARD W. STORY
United States District Judge

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