Thrasher v. Hall County et al

Filing 11

ORDER granting 6 Motion to Dismiss for Failure to State a Claim. The Clerk is DIRECTED to close case. Signed by Judge Richard W. Story on 2/23/15. (rsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION
GREGORY E. THRASHER,
Plaintiff,
v.
HALL COUNTY; HALL
COUNTY SHERIFF
DEPARTMENT; STEVE
CRONIC, as Sheriff of Hall
County; GERALD COUCH, as
Sheriff of Hall County; HALL
COUNTY PROBATION
DEPARTMENT; and CHARLES
BAKER, in his Official Capacity
as Hall County Clerk of Court,
Defendants.

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CIVIL ACTION NO.
2:14-CV-00148-RWS

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ORDER

This case comes before the Court on Defendants’ Motion to Dismiss
Plaintiff’s Complaint [6]. After reviewing the record, the Court enters the
following Order.
Background1
Plaintiff Gregory E. Thrasher brings this action under 42 U.S.C. § 1983
1

As the case is before the Court on a Motion to Dismiss, the Court accepts as
true the facts alleged in the complaint. Cooper v. Pate, 378 U.S. 546, 546 (1964).

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challenging his arrest pursuant to a Hall County warrant. On July 8, 2011,
Plaintiff entered a plea of guilty to DUI and speeding in the State Court of Hall
County. (Compl., Dkt. [1] ¶ 13.) The state court sentenced Plaintiff to twentyfour months’ probation and levied a fine and fees. (Id. ¶ 14.) The court further
required Plaintiff to abstain from possessing or consuming alcohol or illegal
drugs, to complete alcohol and drug evaluation and treatment, and to submit to
random drug and alcohol screenings. (Id.)
On or about August 30, 2011, Plaintiff violated the terms of his probation
when he consumed alcohol resulting in a positive drug screen, and on
September 23, 2011, an affidavit and warrant issued for Plaintiff. (Id. ¶¶ 1516.) Plaintiff appeared before the state court at a hearing on October 28, 2011
on a Petition for Modification/Revocation of Probation. (Id. ¶¶ 17-19.) The
court ordered a revocation of thirty days of Plaintiff’s probation, suspended
upon Plaintiff complying with the terms of his probation and attending a
minimum of two AA meetings per week. (Id. ¶ 20.) The court also ordered
dismissal of the warrant. (Id.)
On July 6, 2012, Plaintiff was pulled over for a traffic violation. (Id. ¶ 9.)
The officer ran a check on Plaintiff’s name, which showed an outstanding
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warrant for violation of probation. (Id. ¶ 10.) On the basis of that warrant,
Plaintiff was arrested, taken into custody by the Hall County Sheriff’s Office,
and incarcerated over the weekend. (Id. ¶¶ 11-12.)
Plaintiff filed suit on July 7, 2014 naming Hall County; Hall County
Sheriff Department; Hall County Probation Department; Steve Cronic as Sheriff
of Hall County (“Sheriff Cronic”), Gerald Couch as Sheriff of Hall County
(“Sheriff Couch”), and Charles Baker in his Official Capacity as Hall County
Clerk of Court (“Clerk of Court Baker”) (collectively, the “individual
Defendants”) as defendants. (Compl., Dkt. [1].) Plaintiff raises federal
Constitutional claims for violation of his Fourth and Fourteenth Amendment
rights (id. ¶¶ 27-33), as well as state law claims for intentional infliction of
emotional distress (id. ¶¶ 34-36), “imputable negligence: respondeat superior”
(id. ¶¶ 37-41), wrongful/false arrest (id. ¶¶ 42-44), false imprisonment (id. ¶¶
45-47), and negligence (id. ¶¶ 48-50). Plaintiff seeks compensatory and
punitive damages pursuant to 42 U.S.C. § 1983 and O.C.G.A. § 51-12-5.1.
Defendants move to dismiss the Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim upon which relief may be granted.

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(Defs.’ Mot. to Dismiss Pl.’s Compl. (“Defs.’ Mot. to Dismiss”), Dkt. [6].) The
Court now addresses this motion.
Discussion
I.

Legal Standard
Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain a

“short and plain statement of the claim showing that the pleader is entitled to
relief.” While this pleading standard does not require “detailed factual
allegations,” “labels and conclusions” or “a formulaic recitation of the elements
of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In order to
withstand a motion to dismiss, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Id. (quoting Twombly, 550 U.S. at 570). A complaint is plausible on its face
when the plaintiff pleads factual content necessary for the court to draw the
reasonable inference that the defendant is liable for the conduct alleged. Id.
At the motion to dismiss stage, “all-well pleaded facts are accepted as
true, and the reasonable inferences therefrom are construed in the light most
favorable to the plaintiff.” Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273
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n.1 (11th Cir. 1999). However, the same does not apply to legal conclusions set
forth in the complaint. Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260
(11th Cir. 2009) (citing Iqbal, 556 U.S. at 678). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678. Furthermore, the court does not “accept as
true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at
555.
II.

Analysis
Defendants move to dismiss Plaintiff’s Complaint on three grounds.

First, Defendants argue that the Hall County Sheriff’s Office and Hall County
Probation Office are not legal entities capable of being sued.2 Second,
Defendants argue that Plaintiff does not allege sufficient facts to hold the
County and the individual Defendants in their official capacities liable for
claims under § 1983. Third, Defendants argue that Plaintiff’s state law claims
are barred by the doctrine of sovereign immunity. Plaintiff opposes

2

Plaintiff’s Complaint misidentifies the entities as “Hall County Sheriff
Department” and “Hall County Probation Department.” (Compl., Dkt. [1]; see also
Defs.’ Mot. to Dismiss, Dkt. [6] at 1.) The Court treats Plaintiff’s Complaint as
though he had named the parties correctly as the “Hall County Sheriff’s Office” and
the “Hall County Probation Services Office.”
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Defendant’s motion, arguing that the Complaint includes sufficient factual
allegations to support claims under § 1983.3 Using the legal framework set
forth above, the Court proceeds to consider Defendants’ arguments.
A.

Claims against Defendants Hall County Sheriff Department and
Hall County Probation Department

As an initial matter, the Court concludes that the Hall County Sheriff’s
Office and the Hall County Probation Department are not entities capable of
being sued. In a federal court, the capacity of an entity to be sued is determined
by the law of the state where the court is located. See FED. R. CIV. P. 17(b)(3).
The State of Georgia recognizes only three classes as legal entities capable of
suing or being sued: (1) natural persons; (2) corporations; and (3) quasiartificial persons that the law recognizes as being capable of bringing suit. Ga.
Insurers Insolvency Pool v. Elbert Cnty., 368 S.E.2d 500, 502 (Ga. 1988). The
Eleventh Circuit has indicated that “[s]heriff’s departments and police

3

Plaintiff filed his reply on August 19, 2014. (Dkt. [9].) Defendants urge the
Court not to consider Plaintiff’s reply, arguing that the pleading was untimely. See
Local Rule 7.1, N.D.Ga.; FED. R. CIV. P. 6. Further, Defendants argue that Plaintiff’s
claims against the Sheriff’s Office and Probation Office should be deemed abandoned
becausePlaintiff did not respond to Defendant’s arguments about those entities.
However, the Court in its discretion will consider Plaintiff’s response and will not
deem Defendants’ motion unopposed or Plaintiff’s claims abandoned.
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departments are not usually considered legal entities subject to suit” under
Georgia law and therefore may not be properly sued as a party in federal court.
Lawal v. Fowler, 196 F. App’x 765, 768 (11th Cir. 2006) (quoting Dean v.
Barber, 951 F.2d 1210, 1214 (11th Cir. 1992)); see also Lovelace v. DeKalb
Cent. Probation, 144 F. App’x 793, 795 (11th Cir. 2005) (affirming district
court’s dismissal of DeKalb County Police Department as a defendant because
under Georgia law it is not a legal entity subject to suit); Jackson v. Hall Cnty.
Sheriff’s Office, No. 2:10-cv-00070-WCO (N.D. Ga. Mar. 3, 2011) (order
dismissing all claims against the Hall County Sheriff’s Office on grounds that it
is not an entity having capacity to be sued).
The rationale behind these decisions is that although a county is
designated under Georgia law as “a body corporate” that is properly subject to
suit, there is no provision in the Georgia Constitution or the Georgia code that
designates a sheriff’s office as a legal entity. Id. at 4 (citing Lowndes Cnty. v.
Dasher, 191 S.E.2d 82, 84 (Ga. 1972)). The sheriff is a constitutionally created
office elected by the voters. GA. CONST. art. 9, § 1, ¶ III(a). Thus, a sheriff’s
office is neither a corporation nor an entity recognized by law as having
capacity to sue or be sued. Nor is a probation office: “[s]ubdivisions of local
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governments . . . generally are not legal entities subject to suit.” Deloach v.
Marietta Police Dep’t, No. 1:09-CV-0650-RWS, 2009 WL 2486324, at *2
(N.D. Ga. Aug. 12, 2009) (citing Dean v. Barber, 951 F.2d 1210, 1214-15 (11th
Cir.1992)). Therefore, pursuant to Rule 17, the Hall County Sheriff’s Office
and the Hall County Probation Office do not have the capacity to be sued in
federal court. For this reason, all claims against the Hall County Sheriff’s
Office and the Hall County Probation Office must be DISMISSED.
B.

Section 1983 claims against Defendant Hall County and the
individual Defendants in their official capacities

In his Complaint, Plaintiff raises claims against the County and against
Sheriff Cronic, Sheriff Couch, and Clerk of Court Baker in their official
capacity pursuant to 42 U.S.C. § 1983 for violations of his Fourth and
Fourteenth Amendment rights. Plaintiff claims that his constitutional injuries
resulted from the Defendants’ failure to dismiss and remove the warrant as
ordered on October 28, 2011. Plaintiff further alleges that the constitutional
violation occurred when the Sheriff “failed to investigate the warrant and
remove the warrant from being an active warrant for [Plaintiff’s] arrest,” “failed
to promptly arrange for [Plaintiff’s release] after being arrested on the warrant,”

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and “allowed [Plaintiff] to remain incarcerated on the warrant which had been
dismissed.” (Compl., Dkt. [1] ¶¶ 29-31.) Defendants move to dismiss
Plaintiff’s claims on grounds that neither the County nor the individual
Defendants in their official capacities can be held municipally liable for the
alleged unconstitutional acts.
To the extent that Plaintiff asserts liability against the individual
Defendants in their official capacities, these claims are tantamount to a claim
against the County and are therefore governed by the analysis for municipal
liability. See, e.g., Kentucky v. Graham, 473 U.S. 159, 165 (1985) (“Official
capacity suits . . . generally represent only another way of pleading an action
against an entity of which an officer is an agent.”) (internal quotation and
citation omitted). Accordingly, the Court now considers the standard for county
liability under Section 1983.
Under 42 U.S.C. § 1983,
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party

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injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .
“In order to prevail in a civil rights action under Section 1983, ‘a plaintiff must
make a prima facie showing of two elements: (1) that the act or omission
deprived plaintiff of a right, privilege or immunity secured by the Constitution
or laws of the United States, and (2) that the act or omission was done by a
person acting under color of law.’” Marshall Cnty. Bd. of Educ. v. Marshall
Cnty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993) (quoting Bannum, Inc.
v. City of Ft. Lauderdale, 901 F.2d 989, 996-97 (11th Cir. 1990)). Local
government units such as counties constitute “persons” subject to suit under
Section 1983. Monell v. Dep’t of Social Servs., 436 U.S. 658, 690 (1978). At
the same time, however, the Supreme Court “has placed strict limitations on
municipal liability under [Section] 1983.” Grech v. Clayton Cnty., Ga., 335
F.3d 1326, 1329 (11th Cir. 2003).
In Monell, the Supreme Court held that “a municipality cannot be held
liable under [Section] 1983 on a respondeat superior theory.” 436 U.S. at 691.
On the contrary, the Court held that local governing bodies, such as counties,
can be sued under Section 1983 only where “the action that is alleged to be

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unconstitutional implements or executes a policy statement, ordinance,
regulation, or decision officially adopted and promulgated by that body’s
officers.” Id. at 690. In other words, to hold a county liable under Section
1983, a plaintiff must show that a county employee or policymaker committed
the constitutional violation, and did so pursuant to an official county policy or
custom. Id. at 694; Grech, 335 F.3d at 1329. This requirement of a policy or
custom “is intended to distinguish acts of the municipality from acts of
employees of the municipality, and thereby make clear that municipal liability is
limited to action for which the municipality is actually responsible.” Grech,
335 F.3d at 1329 n.5 (emphasis in original) (citing cases).
In accordance with the foregoing, Hall County can be liable under
Section 1983 for the alleged unconstitutional acts only if the actors, first, acted
on behalf of the county, and second, acted pursuant to an official policy or
custom of the county. Defendants contend that Plaintiff has failed to
sufficiently allege the existence of an official government policy or custom that
would render the County liable. The Court agrees.
Plaintiff’s Complaint is devoid of factual allegations that would put
Defendants on notice of the basis of his claims against the municipality.
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Rather, Plaintiff simply alleges that “[t]he Defendants were acting as policy
makers and therefore as a county entity Hall County violated the constitutional
and Federal Rights of Thrasher.” (Compl., Dkt. [1] ¶ 25.) Plaintiff does not
identify which Defendants were acting as policy makers. Nor does Plaintiff
identify the policy or custom that allegedly deprived him of his rights. Plaintiff
has failed to provide sufficient factual allegations to satisfy the pleading
standards articulated in Twombly and Iqbal, and has therefore failed to state a
claim upon which relief may be granted under Section 1983. Those claims
against Hall County and Sheriff Cronic, Sheriff Couch, and Clerk of Court
Baker in their official capacities must be DISMISSED.
C.

State law claims against Defendant Hall County and the individual
Defendants in their official capacities

The Court now turns to Plaintiff’s remaining state law claims against Hall
County and Sheriff Cronic, Sheriff Couch, and Clerk of Court Baker in their
official capacities . Defendants move to dismiss these claims on grounds of
sovereign immunity under the Georgia Constitution.
Under the Constitution of the State of Georgia, “sovereign immunity
extends to the state and all of its departments and agencies,” and “can only be

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waived by an Act of the General Assembly which specifically provides that
sovereign immunity is thereby waived and the extent of the waiver.” GA.
CONST. art. I, § 2, ¶ 9(e). The Georgia Supreme Court has held that
“departments and agencies” of the State include counties, which are thus
entitled to sovereign immunity from suit in accordance with this constitutional
provision. Gilbert v. Richardson, 452 S.E.2d 476, 479 (Ga. 1994). “Sovereign
immunity is not an affirmative defense . . . that must be established by the party
seeking its protection. Instead, immunity from suit is a privilege that is subject
to waiver by the State, and the waiver must be established by the party seeking
to benefit from the waiver.” Forsyth Cnty. v. Greer, et al., 439 S.E.2d 679, 681
(Ga. Ct. App. 1993).
The Court concludes that Plaintiff’s state law claims against Hall County
and the individual Defendants in their official capacities are barred by the
doctrine of sovereign immunity, as Plaintiff makes no allegation in the
Complaint that Hall County’s immunity has been waived for purposes of this
suit. In his response to Defendants’ Motion to Dismiss, however, Plaintiff
argues that Hall County’s sovereign immunity “may have been waived to the
extent of available liability insurance.” (Pl.’s Resp. to Defs.’ Mot. to Dismiss
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Pl.’s Compl., Dkt. [9] at 16.) Plaintiff contends that this waiver “would be
discovered” if Plaintiff were allowed to proceed to discovery. (Id.) Regardless,
the Court finds that the immunity determination is proper at the motion to
dismiss stage. First, “[u]nder Georgia law, sovereign immunity is an immunity
from suit, rather than a mere defense to liability, and, therefore, whether a
governmental defendant has waived its sovereign immunity is a threshold
issue.” McCobb v. Clayton Cnty., 710 S.E.2d 207, 209 (Ga. Ct. App. 2011).
Second, Plaintiff’s pleadings fail to allege the existence of liability insurance.
Finally, even if liability insurance were present in this case, the Georgia
constitution was amended in 1991 to delete its “insurance waiver” clause,
McElmurray et al. v. Augusta-Richmond Cnty., 618 S.E.2d 59, 64 (Ga. Ct. App.
2005), and the only other provision concerning waiver of sovereign immunity
and liability insurance of which the Court is aware is O.C.G.A. § 33-24-51,
which has no relevance in this case. See O.C.G.A. § 33-24-51 (waiving
sovereign immunity of a county from claims arising out of the negligent use of
a motor vehicle). Having failed to allege any other basis on which the Court
could find waiver, the Court concludes that Defendants are entitled to sovereign

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immunity from Plaintiff’s state law claims and that those claims are due to be
DISMISSED.
Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss Plaintiff’s
Complaint [6] is GRANTED. The Clerk is DIRECTED to close the case.

SO ORDERED, this 23rd day of February, 2015.

________________________________
RICHARD W. STORY
United States District Judge

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