Turner v. Flowers et al

Filing 76

OPINION and ORDER granting 68 Motion for Summary Judgment. The Clerk is DIRECTED to TERMINATE Kim Brandon as a defendant. Signed by Judge Michael L. Brown on 5/6/2022. (dob) Modified on 5/6/2022 to edit text (dob).

Case 4:20-cv-00201-MLB Document 76 Filed 05/06/22 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ROME DIVISION
Amanda Turner,
Plaintiff,
Case No. 4:20-cv-201-MLB
v.
Floyd Medical Center, et al.,
Defendants.
________________________________/
OPINION & ORDER
Plaintiff Amanda Turner sued her probation officer, Defendant Kim
Brandon, for false imprisonment, malicious prosecution, abuse of process,
violation of the Georgia Constitution, intentional and negligent infliction
of emotional distress, defamation, and punitive damages. (Dkt. 1-3.)1
Defendant moves for summary judgment. (Dkt. 68.) The Court grants
that motion.

Plaintiff sued other defendants, too. But this Order deals solely with
Defendant Kim Brandon, who was originally erroneously named in the
complaint as Kim Baker. (See docket entry dated 9/15/2020.)

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I.

Background2
At all times relevant here, Plaintiff was on probation. (Dkts. 68-4

¶ 1; 74-1 ¶ 1.)3 Defendant supervised Plaintiff’s probation. (Dkts. 68-4
¶ 2; 74-1 ¶ 2.) One of her probation conditions was to “not violate the
criminal laws of any governmental unit and be of general good behavior.”
(Dkts. 68-4 ¶ 3; 74-1 ¶ 3.)
On May 7, 2019, Plaintiff drove her vehicle off the road and struck
a tree. (Dkts. 68-4 ¶ 4; 74-1 ¶ 4.) She was taken to the emergency room

The Court derives the facts from the admitted portions of Defendant’s
statement of material facts (Dkt. 68-4) and from the Court’s own review
of the record and determination of what facts are material. Consistent
with Local Rule 56.1, the Court considers each of Defendant’s facts
admitted unless Plaintiff directly refuted the fact with a response
supported by cited evidence, challenged whether the evidence could be
introduced in an admissible form, or showed that Defendant’s citation
does not support its fact as stated. See LR 56.1(B)(2)(a)(2), NDGa. The
Court did not consider any portion of Plaintiff’s statement of additional
facts (Dkt. 74-2) because it is a statement of issues, rather than a
statement of facts, nor did it consider any facts set out only in the briefs,
LR 56.1(B)(1).
3 Plaintiff’s response to Defendant’s statement of material facts violates
this Court’s Standing Order. The Standing Order provides: “[A] party
responding to a statement of material facts shall copy into its response
document the numbered statement to which it is responding and provide
its response to that statement immediately following.” (Dkt. 64 ¶ r(2).)
Plaintiff did not copy into its response document the numbered statement
to which it was responding. (See Dkt. 74-1.) The Court admonishes
Plaintiff for violating the Standing Order. The rule is pretty clear and
should be followed.
2

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at Floyd Medical Center. (Dkts. 68-4 ¶ 5; 74-1 ¶ 5.) Georgia State Patrol
Trooper Keith Flowers investigated the crash and went to the hospital to
interview Plaintiff. (Dkts. 68-4 ¶ 6; 74-1 ¶ 6.) After talking to Plaintiff,
Trooper Flowers suspected that Plaintiff had been driving under the
influence at the time of her crash. (Dkts. 68-4 ¶ 7; 74-1 ¶ 7.) He asked a
nurse to draw Plaintiff’s blood and then submitted that blood sample for
analysis by the state crime lab. (Dkts. 68-4 ¶ 8; 74-1 ¶ 8.) He told
Plaintiff to turn herself in to the Polk County jail for driving under the
influence and failure to maintain lane. (Dkts. 68-4 ¶¶ 9, 21; 74-1 ¶¶ 9,
21.) Plaintiff left Floyd Medical Center and went to another hospital,
Paulding WellStar Hospital,4 to have her own drug and alcohol screening
conducted. (Dkts. 68-4 ¶ 10; 74-1 ¶ 10.) WellStar conducted a rapid drug
and alcohol screen at 12:30 a.m. on May 8th. (Dkts. 68-4 ¶ 11; 74-1 ¶ 11.)
Later, Plaintiff called Defendant and informed her about the crash, her
interaction with Trooper Flowers, and the two traffic charges. (Dkts. 68-4
¶¶ 12–13; 74-1 ¶¶ 12–13.) On May 10th, Plaintiff met Defendant at the

The complaint says the second hospital she went to was Piedmont
Hospital (Dkt. 1-3 at 10), but Plaintiff testified that she went to
“Paulding” (Dkt. 66 at 66:11–13), and Defendant testified that it was
“Paulding WellStar Hospital” (Dkt. 67 at 10:2–3).

4

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Polk County courthouse and provided the rapid screen results from
WellStar, which showed no drugs or alcohol. (Dkts. 68-4 ¶ 14; 74-1 ¶ 14.)
On May 15th, Defendant received the incident report for the crash
and the accompanying traffic citations. (Dkts. 68-4 ¶ 15; 74-1 ¶ 15.)5 The
report said that, after the crash, Plaintiff’s car smelled strongly of burnt
marijuana and Plaintiff had bloodshot, watery eyes; constricted pupils;
and eyelid tremors. (Dkts. 68-4 ¶ 18; 74-1 ¶ 18.) It also said Plaintiff had
body tremors, slow and raspy speech, and “her tongue was discolored
with raised taste buds.” (Dkts. 68-4 ¶ 19; 74-1 ¶ 19.)6 The state crime
lab results for Plaintiff’s blood analysis were not yet available. (Dkts.
68-4 ¶ 16; 74-1 ¶ 16.) Based on Trooper Flowers’s report, Defendant
sought a probation violation warrant for Plaintiff on May 20th, alleging

Plaintiff responded to this fact (and a few others) with a statement that
she “is without sufficient knowledge to admit or deny this statement.”
(Dkt. 74-1 ¶¶ 15–16, 27.) That is not an acceptable response. See LR
56.1(B)(2)(a)(4).
6 Plaintiff denies she had tremors or distorted speech. (Dkt. 74-1 ¶ 19.)
She also denies that her tongue was discolored with raised taste buds and
says Officer Flowers never got close enough to observe her tongue. (Id.)
But she does not deny that Officer Flowers included these observations
in his report. So that allegation is admitted. And even if it was not, the
report establishes its own content. (Dkt. 68-1 at 6.)
5

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Plaintiff had violated the criminal laws by driving under the influence
and failing to maintain her lane. (Dkts. 68-4 ¶ 22; 74-1 ¶ 22; 68-2.)
The next day, Plaintiff turned herself into the Polk County jail on
the two traffic charges as Officer Flowers had instructed her to do. (Dkts.
68-4 ¶ 23; 74-1 ¶ 23.) When she tried to bond out of jail, Plaintiff learned
of the probation violation warrant. (Dkts. 68-4 ¶ 24; 74-1 ¶ 24.) On May
22nd, Defendant petitioned for modification or revocation of Plaintiff’s
probation based on the charges filed by Trooper Flowers. (Dkts. 68-4 ¶
25; 74-1 ¶ 25.) On June 3rd, Defendant signed her consent to a probation
bond, which led to Plaintiff’s release from jail. (Dkts. 68-4 ¶ 16; 74-1 ¶
16.)

The state crime lab results arrived on June 26th and showed

Plaintiff was negative for drugs and alcohol the night of the crash. (Dkts.
68-4 ¶ 28; 74-1 ¶ 28.) As a result, Defendant dismissed the probation
violation petition against Plaintiff. (Id.)
II.

Legal Standard
Federal Rule of Civil Procedure 56 states that a court “shall grant

summary judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). A fact is material if it “might affect the

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outcome of the suit under the governing law.” W. Grp. Nurseries, Inc. v.
Ergas, 167 F.3d 1354, 1360 (11th Cir. 1999) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). A factual dispute is genuine “if
the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Id. at 1361 (citing Anderson, 477 U.S. at 248).
The party moving for summary judgment bears the initial burden
of showing the court, by reference to materials in the record, that there
is no genuine dispute as to any material fact.

Hickson Corp. v. N.

Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004) (citing Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986)). The nonmoving party then has the
burden of showing that summary judgment is improper by coming
forward with “specific facts” showing there is a genuine dispute for trial.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986) (citing Fed. R. Civ. P. 56(e)). Ultimately, there is no “genuine issue
for trial” when “the record taken as a whole could not lead a rational trier
of fact to find for the non-moving party.” Id. (citing First Nat’l Bank of
Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)). “[T]he mere existence
of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the

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requirement is that there be no genuine issue of material fact.” Anderson,
477 U.S. at 247–48. A district court must “resolve all reasonable doubts
about the facts in favor of the non-movant[] and draw all justifiable
inferences in his or her favor.” Fitzpatrick v. City of Atlanta, 2 F.3d 1112,
1115 (11th Cir. 1993) (alteration adopted) (quoting United States v. Four
Parcels of Real Prop., 941 F.2d 1428, 1437 (11th Cir. 1991)).
III. Discussion7
A.

Federal § 1983 Claims
1.

False Imprisonment

Plaintiff asserts a false imprisonment claim against Defendant.
(Dkt. 1-3 at 16.) Plaintiff alleges that “[a]lthough Defendant [Brandon]
had a copy of a drug report from [WellStar] showing a negative result for
alcohol taken on May 7, 2019,” Defendant “placed a hold on” Plaintiff,
which “requir[ed] her to make a probation bond to be release[d] from the
Polk County jail,” and this “caused [Plaintiff] to remain in the Polk
County jail for eleven days before she was able to post bond.” (Id. at 16–

Plaintiff’s response in opposition (Dkt. 74) is conclusory, suffers from a
lack of organization, often makes no sense, and fails to engage with
Defendant’s brief in support of its motion for summary judgment on most
issues.
7

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17.) Defendant argues summary judgment is appropriate on this claim
because any jail time for the probation violation occurred under legal
process. (Dkt. 69 at 6–7.) The Court agrees.
“A claim of false arrest or imprisonment under the Fourth
Amendment concerns seizures without legal process, such as warrantless
arrests.”

Williams v. Aguirre, 965 F.3d 1147, 1158 (11th Cir. 2020)

(emphasis added). The issuance of a warrant—even an invalid one—
“constitutes legal process, and thus, where an individual has been
arrested pursuant to a warrant, [her] claim is for malicious prosecution
rather than false arrest.” Carter v. Gore, 557 F. App’x 904, 906 (11th Cir.
2014) (per curiam); see also Coward v. Simone, 2012 WL 4381270, at *5
(N.D. Ga. Sept. 24, 2012) (“[W]here an arrest is made pursuant to a
warrant, a form of legal process, a cause of action for false arrest or false
imprisonment based on the arrest will not lie. On the contrary, the tort
of malicious prosecution is the exclusive remedy for a confinement
pursuant to legal process.” (internal citation omitted)).
It is undisputed that Plaintiff’s imprisonment for the probation
violation occurred under legal process, specifically a probation violation
warrant.

(Dkts. 1-3 ¶ 69 (“Plaintiff’s Revocation Hearing was set

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pursuant to a valid warrant pursued by Defendant Kim [Brandon] . . . .”);
74 at 12 (noting that Defendant “fil[ed] the Petition to revoke her
Probation”),

15

(“[Defendant]

filed

for

a

PROBATION

REVOCATION . . . .”).) Defendant is thus entitled to summary judgment
on Plaintiff’s false imprisonment claim. See Rahmaan v. McQuilkin,
2021 WL 86842, at *4 (N.D. Ga. Jan. 11, 2021) (“Here, [the plaintiff] was
arrested and detained under the authority of a warrant; therefore, his
§ 1983 cause of action can only be based on malicious prosecution, which
is a ‘shorthand way of describing certain claims of unlawful seizure under
the Fourth Amendment.’” (quoting Aguirre, 965 F.3d at 1157)).
2.

Malicious Prosecution

Plaintiff also brings a federal malicious prosecution claim against
Defendant. (Dkt. 1-3 at 17–19.) To maintain such a claim, a plaintiff
must overcome two hurdles. First, she must prove she suffered a seizure
pursuant to legal process that violated the Fourth Amendment. Aguirre,
965 F.3d at 1157–79. This burden requires Plaintiff to “establish (1) that
the legal process justifying [her] seizure was constitutionally infirm and
(2) that [her] seizure would not otherwise be justified without legal
process.” Id. at 1165. Second, she must satisfy “the elements of the

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common law tort of malicious prosecution.” Id. at 1157. This burden
requires Plaintiff to show “(1) a criminal prosecution instituted or
continued by the present defendant; (2) with malice and without probable
cause; (3) that terminated in the plaintiff accused’s favor; and (4) caused
damage to the plaintiff accused.” Blue v. Lopez, 901 F.3d 1352, 1357
(11th Cir. 2018).
Defendant argues summary judgment is appropriate on this claim
in part because a probation revocation proceeding is not a prosecution.8

Defendant raises other grounds for why summary judgment is
appropriate, such as qualified immunity, the existence of probable cause,
and the inability of Plaintiff to establish malice. (Dkt. 69 at 5–15.) The
Court need not reach these issues because summary judgment is
appropriate because a probation revocation is not a criminal prosecution,
as explained below. But if the Court were to reach the qualified
immunity issue, it would find Defendant is entitled to qualified immunity
because the undisputed facts establish she was acting within her
discretionary authority as a probation officer, she was entitled to rely
upon Officer Flowers’s report because it is reasonably trustworthy
evidence, and that report provided her with at least arguable probable
cause to believe Plaintiff had violated the terms of her probation in
driving under the influence. Williams v. Miami-Dade Police Dep’t, 297
F. App’x 941, 946 (11th Cir. 2008) (per curiam) (“Defendants to a
malicious prosecution claim under § 1983 are entitled to qualified
immunity if the plaintiff is unable to show that they acted without
probable cause.”); Grider v. City of Auburn, 618 F.3d 1240, 1257 (11th
Cir. 2010) (“To receive qualified immunity, an officer need not have
actual probable cause, but only ‘arguable’ probable cause.”); Hardigree v.
Lofton, 992 F.3d 1216, 1225 (11th Cir. 2021) (“Arguable probable cause

8

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(Dkt. 69 at 8–9.) The Court agrees. Probation revocation is not a stage
of a criminal prosecution. See Smith v. Mitchell, 856 F. App’x 248, 250
(11th Cir. 2021) (per curiam) (“[A] probation-revocation hearing is not a
‘criminal prosecution’ for the purposes of a malicious-prosecution
claim.”); Bivins v. Kellogg, 2020 WL 7647794, at *5 (M.D. Ga. July 7,
2020) (finding that the plaintiff’s “malicious prosecution claim fails, as
the probation revocation proceeding was not a stage of his criminal
prosecution and cannot form the basis for a malicious prosecution claim”);
Walker v. Dean, 2016 WL 3227501, at *3 (N.D. Ga. June 13, 2016) (“[A]
petition for probation revocation is not a criminal prosecution for
purposes of a Section 1983 claim for malicious prosecution . . . .”); Castillo
v. Florida, 630 F. App’x 1001, 1006 (11th Cir. 2015) (“[P]robation
revocation hearings are not criminal prosecutions . . . .”); Zabresky v. Von
Schmeling, 2014 WL 414248, at *5 (M.D. Pa. Feb. 4, 2014) (“[N]o court
has held that a probation violation is tantamount to a criminal
prosecution.”); Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (“Probation

exists if ‘reasonable officers in the same circumstances and possessing
the same knowledge as the Defendants could have believed that probable
cause existed.’”); Arnold Rogers v. City of Orlando, 660 F. App’x 819, 825
n.9 (11th Cir. 2016) (per curiam) (“[I]n assessing probable cause[,] an
officer may rely on evidence that is ‘reasonably trustworthy.’”).
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revocation, like parole revocation, is not a stage of a criminal
prosecution . . . .”).

Summary judgment is thus appropriate on the

malicious prosecution claim against Defendant.
B.

State Claims

Plaintiff asserts claims under state law for abuse of process,9 a
cause of action under the Georgia Constitution, intentional and negligent
infliction of emotional distress, and defamation. (Dkt. 1-3 at 19–21, 25–
27.) Defendant argues summary judgment is appropriate on each of
these claims because she is entitled to official immunity and they fail on
the merits.10 (Dkt. 69 at 15–21.)
“[U]nder the Georgia Constitution, state officials are entitled to
official immunity for their discretionary actions unless they acted with

Plaintiff does not specify whether her abuse of process claim is brought
under § 1983 or state law. Defendant analyzes it exclusively under state
law (Dkt. 69 at 17), and Plaintiff does not say otherwise in her response
(Dkt. 74 (never discussing an abuse of process claim)). The Court thus
construes it to be a state law claim. But to the extent that she sought to
bring such a claim under § 1983, she has abandoned it. In any event, in
the light of her abuse-of-process allegations stemming from her arrest,
such allegations are more properly analyzed under the Fourth
Amendment, not the Due Process Clause of the Fourteenth Amendment.
See Jordan v. Mosley, 298 F. App’x 803, 805 (11th Cir. 2008) (per curiam).
10 The Court need not reach the merits of the state law claims because
summary judgment is appropriate because Defendant is entitled to
official immunity, as explained below.
9

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‘actual malice’ or an ‘actual intent to cause injury.’” Black v. Wigington,
811 F.3d 1259, 1265–66 (11th Cir. 2016) (quoting Ga. Const. art. I, § 2,
para. IX(d)).

“A discretionary act calls for the exercise of personal

deliberation and judgment, which in turn entails examining the facts,
reaching reasoned conclusions, and acting on them in a way not
specifically directed.” Todd v. Kelly, 535 S.E.2d 540, 542 (Ga. Ct. App.
2000) (internal quotation marks omitted). A ministerial act, which does
not entitle a public official to official immunity, “is commonly one that is
simple, absolute, and definite, arising under conditions admitted or
proved to exist, and requiring merely the execution of a specific duty.
Howell v. Willis, 729 S.E.2d 643, 645 (Ga. Ct. App. 2012). In deciding
whether a public employee’s action is discretionary or ministerial,
the court must focus on the character of the specific actions
taken by the government official or employee, not the general
nature of the job; and the characterization is determined by
the facts of each individual case, particularly the facts
specifically relevant to the official’s act or omission from
which the alleged liability arises.
13 Georgia Jurisprudence § 9:6 (2022) (footnotes omitted).
Defendant argues her evaluation of Plaintiff’s probation violation
and decision to obtain a probation violation warrant are discretionary
actions. (Dkt. 69 at 16.) Plaintiff says Defendant breached ministerial
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duties (Dkt. 74 at 8, 11) but fails to explain why those “duties” are
ministerial in nature. Defendant, a state probation officer, was acting
within the scope of her authority when she decided to petition for
modification or revocation of probation. She exercised her discretion to
do so after reviewing Trooper Flowers’s report and considering the other
evidence before her. As part of this, she had to assess the reliability of
the Trooper’s observations about the smell emanating from Plaintiff’s car
and Plaintiff’s physical condition following the accident. She then had to
weigh the Trooper’s observations against her post-crash conversations
with Plaintiff and Plaintiff’s disclosure of the WellStar rapid screen
negative test results. Defendant also had to consider whether to wait for
test results from the state crime lab. Finally, she had to determine
whether the totality of the evidence was sufficient to establish that
Plaintiff had been driving while under the influence of marijuana or some
other substance. Defendant’s judgment was certainly a discretionary act.
Anderson v. Cobb, 573 S.E.2d 417, 419 (Ga. App. 2002) (detective’s
“decision to seek an arrest warrant is a discretionary act”).
Defendant is thus entitled to official immunity unless she acted
with actual malice or an actual intent to cause injury. Actual malice, as

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used in the context of official immunity, “requires a deliberate intention
to do wrong.” Merrow v. Hawkins, 467 S.E.2d 336, 337 (Ga. 1996). And
“actual intent to cause injury” means an actual intent to cause harm to
the plaintiff, not merely an intent to do the act purportedly causing the
claimed injury.

13 Georgia Jurisprudence § 9:21 (2022).

Defendant

argues “there is nothing that comes even close to approaching the high
threshold for ‘actual malice’ required to defeat official immunity.” (Dkt.
69 at 16–17.) Plaintiff mentions the phrase “actual malice” four times—
each time while discussing the legal standard. (See Dkt. 74 at 13, 17–
18.) The Court has no burden to distill every potential argument that
could be made based on the materials before it on summary judgment.
The onus is upon the parties to formulate their arguments. Resol. Tr.
Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995). But, liberally
construing her response brief, Plaintiff may be saying Defendant acted
with

actual

malice

because

she

brought

a

probation

modification/revocation petition despite seeing negative drug and alcohol
results from WellStar.

That is not enough to show actual malice.

Defendant also had a report from a state trooper saying otherwise.
Georgia courts have held that there is no evidence of actual malice for

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purposes of official immunity even where an officer’s decision to seek
warrants might be characterized as “misguided.” Todd, 535 S.E.2d at
543. The Court is not suggesting Defendant was “misguided” in her
assessment of the situation but simply noting that, even if she were, that
would not establish malice as a matter of law. Defendant is entitled to
official immunity.

Summary judgment is appropriate on Plaintiff’s

claims under state law for abuse of process, a cause of action under the
Georgia Constitution, intentional and negligent infliction of emotional
distress, and defamation against Defendant.
C.

Punitive Damages

Plaintiff seeks punitive damages against Defendant. (Dkt. 1-3 at
27–28.) She does not identify whether she seeks them under § 1983 or
Georgia law. (Id.) If she relies on § 1983, Defendant argues the claim
fails because she cannot show Defendant’s conduct was motivated by evil
motive or intent, or that Defendant was recklessly or callously indifferent
to the federally protected rights of others. (Dkt. 69 at 21–22.) If she relies
on state law, Defendant contends her claim fails because (1) she has no
viable underlying state law claim and (2) she cannot show Defendant
engaged in willful misconduct, malice, wantonness, oppression, or

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otherwise evinced an entire want of care as to authorize imposing
punitive damages. (Id. at 22.) Plaintiff does not respond to any of these
arguments or support her punitive damages claim in any way. (See
generally Dkt. 74.) Indeed, the phrase “punitive damages” never appears
in her response brief. (Id.) The Court finds Plaintiff has abandoned her
punitive damages claim because of her failure to address Defendant’s
argument on this claim or otherwise support this claim in her response
to the motion for summary judgment. See McIntyre v. Eckerd Corp., 251
F. App’x 621, 622 (11th Cir. 2007) (per curiam) (affirming district court’s
finding that an employee abandoned her battery claim on summary
judgment where she offered no response to the employer’s motion on that
claim); Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322 (11th Cir. 2001)
(finding claim abandoned and affirming grant of summary judgment as
to claim presented in complaint but not raised in response to motion for
summary judgment); Coal. for the Abolition of Marijuana Prohibition v.
City of Atlanta, 219 F.3d 1301, 1325 (11th Cir. 2000) (finding claim
abandoned where it was not briefed and argued in district court in party’s
response to motion for summary judgment or in party’s own motion for
summary judgment); see also Resol. Tr. Corp., 43 F.3d at 599 (“In

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opposing a motion for summary judgment, ‘a party may not rely on his
pleadings to avoid judgment against him.’”).

Summary judgment is

appropriate on the punitive damages claim against Defendant.
IV.

Conclusion
The Court GRANTS Defendant Kim Brandon’s Motion for

Summary Judgment (Dkt. 68).

The Clerk is DIRECTED to

TERMINATE Kim Brandon as a defendant.11
SO ORDERED this 6th day of May, 2022.

(1

1

MICH"K E L L. B R O W N

This Order does not affect any claims brought against Defendants
Floyd Medical Center or Tonya Johnson.

11

18