Gibbons v. McBride et al
Filing
53
ORDER granting in part and denying in part 42 Partial Motion to Dismiss. The Court directs the Clerk to terminate Defendants Maxwell, Black, Skinner, Turner, and John/Jane Doe as parties as well as all deadlines and motions pertaining to them. De fendants shall have fourteen days to file an answer to Mr. Gibbons' Amended Complaint. The parties shall submit a discovery plan within thirty days of this Order. The Court cautions Mr. Gibbons' counsel, John P. Batson, against using exce ssive footnotes to evade the 26-page limit for motions filed in this Court. See LR 7.1(a), SDGa. If he continues to use footnotes in this manner, his briefs will, at the Court's discretion, either be rejected as unacceptable for filing or dismissed with leave to be refiled in proper form. The Court further cautions Mr. Batson against abusive use of the sur-reply brief. Signed by Judge J. Randal Hall on 08/21/2015. (thb)
IN THE
UNITED
FOR THE
STATES
DISTRICT
SOUTHERN DISTRICT
OF
COURT
GEORGIA
AUGUSTA DIVISION
FREDERICK GIBBONS,
*
Plaintiff,
*
v.
*
CV
114-056
•
WILLIAM McBRIDE, individually
and in his capacity as Director
with the GRU Department of
Public Safety, et al.,
*
*
*
*
*
Defendants.
*
ORDER
In
this
action,
Plaintiff
Frederick Gibbons
asserts
claims
against the Board of Regents of the University System of Georgia
and
seven
(UGRU")
his
named
officers
Police Bureau,
First,
rights,
Fourth,
as
well
the
Georgia
Regents
among others unnamed,
Fifth,
as
of
Thirteenth,
violations
of
and
University
for deprivation of
Fourteenth
various
state
Amendment
laws,
when
Officer Wesley Martin tased him five times during a traffic stop
for an alleged tag violation.
Amended
dismissal
failure
Compla-int
on
to
Georgia Tort
(Doc.
multiple
comply
4C) ,
Defendants
grounds,
with
Claims Act
In lieu of answering Mr. Gibbons'
the
move
including
various
procedural
("GTCA"),
partial
immunities,
requirements
and failure• to
upon which the Court can grant relief.
for
state
of
the
claims
For the reasons stated
herein,
the
Court GRANTS
IN PART and DENIES
Partial Motion to Dismiss.
(Doc.
I.
A.
IN PART Defendants'
42.)
BACKGROUND
Factual Background
Mr.
Gibbons,
an
African-American
two small businesses in Augusta,
The
(Am.
instant suit arises out of
Police Bureau.
The
Court
owns
and
operates
Georgia — a used car dealership
and the cafe-lounge Soultry Sounds.
49.)
male,
summarizes
Compl.
Kf 6,
20,
22,
two incidents with the GRU
each in turn.
September 23, 2010 Traffic Stop
1.
In
the
early
hours
of
closed down Soultry Sounds,
September
23,
2 010,
Mr.
Gibbons
collected the night's receipts,
and
left downtown Augusta in a vehicle with a Dollar Down Auto Sales
("Dollar Down")
dealer
Richmond County,
tag
to
Georgia.
(Id.
drive
to
HU 20,
his
21,
house
23.)
in
southern
While driving
on Wrightsboro Road past the Medical College of Georgia,1 Officer
Martin
stopped Mr.
Gibbons
his paper dealer tag.
because
(Id.
H1I 25,
of
an
27,
alleged problem with
28.)
In response, Mr.
Gibbons advised Officer Martin that the tag was valid and showed
him
the
(Id. UK
proper
28-29.)
insurance
Officer
verification
Martin
then
and
decided
Gibbons for driving an unregistered vehicle,
1
The
Medical
comprising GRU.
College
of
Georgia
is one
of
nine
identification.
to
ticket
Mr.
but requested that
colleges
and
schools
another
officer,
UK 30,
31.)
Martin
sign
and
he
Mr.
the
wanted
future.
Mr.
Gibbons
to
be
able
in
turn,
sign
objected,
citation because
to
the ticket.
Mr.
Gibbons
t1 34,
35.)
put
that his wrists began to bleed.
Four days
later,
Officer
made
the
Officer. Martin
also refused.
Bennett
(Id. tf 37,
Police
about
38.)
Bureau
Kymyatta
being
Police
cuffs
14, 39.)
33,
allow him to
sign
on
Mr.
Gibbons
so
tightly
(Id. Hf 35, 36.)
stopped
2010,
for
a
Chief of
Public
Mr.
Gibbons
valid
filed
Skinner,
dealer
tag.
Police for the GRU
Safety at
Operations
conduct an investigation into the
(Id. UK 8/
ft
but Officer Martin and
refused to
on September 27,
and Director of
a
the
After usnatch[ing] " Mr. Gibbons'
William McBride,
Turner,
stop
in
(Id.
an internal affairs complaint against Officers Martin,
and
(Id.
Officer Martin refused to sign the
"Defendants"
phone,
that
Officer. Martin
identify
Zachary Skinner,
(Id.
the . citation.
requesting
Gibbons then changed his mind,
another officer,
cell
Bennett,
^% 32, 33.)
(Id.
citation and,
34.)
Jonathan
GRU,
Specialist
September 23,
According to Mr. Gibbons,
appointed
("POS"),
2010
to
incident.
POS Turner had no
prior training or experience in internal affairs investigations.
(Id.
K 40.)
Martin
POS
"did not
Turner's
break
the
investigation concluded that Officer
law,
violate
any policies
of
correct
police conduct, or otherwise breach any duties to' Gibbons in his
acts,
or failures to act,
as to Gibbons."
(Id.
^ 43.)
POS
Turner
passed
on
her
findings
to
Chief
McBride,
and
Chief
McBride took no action to sanction or punish Officer Martin for
his conduct during the September 2010 stop.
On December 1,
General
dismissed
2010,
the
the Augusta-Richmond County Solicitor
citation issued to Mr.
of the September 2010 stop.
In
and
the
early
Soultry
left
dealer
Gibbons
as
a
result
Gibbons
closed
(Id. f 46.)
March 1, 2012 Traffic Stop
2.
down
(Id. ^f "44, 45.)
Sounds,
downtown
tag
hours
listing
of
March
collected
Augusta
to
1,
the
2012,
Mr.
night's
drive
home
Soultry Sounds.
receipts
in
(Id.
a
and
vehicle
Ht 48,
cash,
with
50.)
a
While
driving on Wrightsboro Road at around 3:00 AM past the Medical
College
" [he]
of
Georgia,
Officer Martin stopped Mr.
saw the paper dealer tag."
Martin directed Mr.
Gibbons
(Id.
Gibbons
Hf 51-53, 64.)
to turn onto a
because
Officer
dark side road.
(Id.
t 64.)
Once Officer Martin stepped out of his patrol car, Mr.
Gibbons
recognized him.
(Id.
HU 65,
66.)
As Officer Martin
approached his car, Mr. Gibbons rolled down his window na couple
inches,"
asked if they could proceed to a well-lit convenience
store nearby,
request
paper
and upon Officer Martin's
assistance
dealer
before."
tag"
(Id.
^because
and
he
"had
Hf 68-70.)
had
refusal,
been
trouble
Officer
pulled
with
Martin
called 911
over
[for]
to
a
[Officer
Martin]
saw
Gibbons
Mr.
through the window,
recognized him from the September 2010 stop,
and heard him requesting emergency assistance.
Officer
Martin
began
to
yell,
repeatedly
(Id.
demanding
Gibbons get out of the car and open the door.
Officer
Martin
obstruction,
and
then
announced
reached
tased Mr.
inside
Gibbons
Martin did not give Mr.
(Id.
phone with 911
t 79.)
cracked
times
(IdL M
in
76,
(Id.
was
rapid
77,
arrest
side
succession,
95,
96,
(Id. K 106.)
during at
98.)
for
window,
thereby
Officer
Mr. Gibbons remained
least the
first
trigger pull.
Eventually the taser wires disintegrated,
transmission of the current.
(Id. K 99.)
During that trip,
stopping
The electrodes burned
Mr. Gibbons, which resulted in a trip to the hospital.
78, 97.)
Mr.
Ht 72, 73.)
under
driver's
that
Gibbons a warning before deploying the
taser as required by policy.
on the
Gibbons
the
five
delivering 50,000 volts.
Mr.
HU 67, 71.)
(Id. %%
Officer Martin "taunted" Mr. Gibbons
and "talked about how the officers could keep the cash from his
business"
that was in his
was arrested and jailed.
The
conduct,
second
again
subsequent
car.
criminal
f 78.)
Mr.
Gibbons later
(Id.)
internal
carried
(Id.
investigation
out
trial
by
on
POS
the
into
Turner,
Officer
and
obstruction
that Officer Martin lied on an official
Martin's
Mr.
Gibbons'
charge
revealed
form about Mr.
Gibbons'
alleged failure to engage him in dialogue during the March 2012
stop.
(Id.
H 107.)
According to Mr.
Gibbons,
Officer Martin
also
"perjured
himself
while
trying
to
justify
his
stop
by
(Id. ^ 136.)
telling the jury Gibbons had no paper tag at all."
Officer Martin further explained "that he pulled the trigger of
the taser the first time because Mr.
Gibbons was non-compliant,
and the second time was to frighten Mr. Gibbons into rolling the
window down."
(Id. *h 104.)
This explanation is consistent with
the fact that Officer Martin did not identify any safety threats
or concerns
% 80.)
in his police report following the incident.
(Id.
At the same time, GRU Police Bureau policy forbids using
a taser to coerce.
(Id. t 105.)
Officer Martin contended that
the final three pulls of the taser trigger "were"inadvertent and
caused by his hand being stuck in the window."
(Id.
Mr. Gibbons further alleges that another officer,
t 109.)
Brian Jackson,
likewise perjured himself when he told the jury that Mr. Gibbons
"had shot Martin
the bird right before
and had no tag on his car.
the
2012
traffic
stop"
(Id. fH 139, 140.)
POS Turner again found nothing wrong with Officer Martin's
actions
Martin
and
not
Chief
McBride
committing
any
inadvertent trigger pulls."
On July
11,
2013,
"ratified
policy
Turner's
violations
finding
and
his-
about
triple
(Id^ 1JU 108, 118.) •
a Richmond County
acquitted Mr. Gibbons of obstruction.
Superior •Court
(Id. ^ 135.)
jury
B.
Procedural Background
On
February
expiration of
the
March
28,
the
2012
2 014
statute of
arrest
against Defendants.
—
definite
Procedure
(Doc.
of
12.)
or
days
prior
on claims
filed
this
answering Mr.
in
pursuant
the
deficiencies,
to
§
1983
Gibbons'
Federal
alternative
for
to
the
arising out
Defendants moved on July 3,
In that motion,
pleading
two
Gibbons
In lieu of
statement
12(e),
only
limitations
Mr.
272-paragraph Complaint,
more
—
action
31-page,
2014 for a
Rule
of
partial
Civil
dismissal.
Defendants identified a laundry list
including
that
each of
Mr.
Gibbons'
thirteen claims fully incorporated every paragraph that preceded
it,
and
facts
some
and
counts
other
collectively,
in
fact
claims;
double
Mr.
incorporated
Gibbons
referred
the
to
preceding
Defendants
and certain individual Defendants were referenced
only in the paragraphs purporting to set forth the underlying
facts;
and
Mr.
constitutional
Gibbons
or
did
statutory
not
consistently
source
of
his
designate
claims,
or
the
if
designated, he did not clarify which Defendants were named under
that claim.
sought,
of
3 8 at
6-7.)
Shortly thereafter,
Defendants
and the United States Magistrate Judge granted,
discovery
motion.
(Doc.
(Doc.
pending
resolution
of
Defendants'
a stay
dispositive
27.)
Mr. Gibbons and Defendants then agreed to extensions of the
briefing schedule for Defendants' Rule 12(e) motion.
(Docs. 18,
22.)
During
filed a
which
the
course
"Motion to Address
urged
that
attorneys
or
should
individual
and
contrary
6).
he
He
at
Amend,
the
finally
September 30,
another
waive
motion
the
defenses
ripened
for
either
rights
on
the
brief:
on
and
the
additionally
(Doc.
have
to
23),
(Doc.
their
23-1
his
36.)
27,
a
(Doc.
Mr.
preemptive
supervisory
34.)
All
these
consideration
Gibbons
Motion
liability
filed yet
for
Leave
claims,
alternative
liability;
(2)
on
in
Partial
to
the
Motion
He also moved for a hearing on all the
2014,
required
one source of
Mr.
the
(Doc.
Court
Gibbons
to
37.)
granted
Defendants'
re-plead
his
12(e)
case
with
(1)
law and/or one legal theory upon which he asserts
each defendant against whom he asserts liability
ori that theory;
and
(3)
the factual allegations
basis of each claim against each defendant.
it
at
failed to oppose
explicit instructions to clearly specify within each count
that
in
different
assert
record"
Court's
granted Defendants'
(Doc.
October
time.
Shortly thereafter,
aforementioned pending matters.
motion
Interests"
should
their
appropriate
and
Court
to Dismiss.
Oh
of
Gibbons
discovery even though he
2014.
focusing
event
Conflict
Mr.
also filed an objection to the Magistrate Judge's order
motion
motions
briefing,
"Defendants
granting the stay of
that
of
did not
have
a well-pleaded
that form the
(Doc. 38.)
complaint
before
Finding
it
from
which discovery could proceed, see Carter v. Dekalb Cnty.,
Ga. ,
521 F.
App'x 725,
Gibbons'
729
(11th Cir.
objection to
stay.
(Doc.
"Motion
to
The
Court
Conflict
similarly
of
accordingly, premature.
After Mr.
10,
Gibbons
imposition of
found
Interests,"
construed as a disqualification motion,
and,
the Court overruled Mr.
the Magistrate Judge's
38.)
Address
2013),
Mr.
the
Gibbons'
which
the
Court
to be wholly conjectural
(Doc. 39.)
filed his
Amended Complaint on November
2014 — slimmed to 27 pages and 183 paragraphs — Defendants
renewed their partial motion to dismiss.
is ready for disposition and,
for
(Doc.
42.)
the reasons
The motion
explained below,
is due to be granted in part.
II,
A.
STANDARDS
OF
REVIEW
Motion to Dismiss on Jurisdictional
Grounds
A motion to dismiss for lack of subject matter jurisdiction
under Rule 12(b)(1)
be
either
Corp.,
a
323
motions,
Complaint
of
"facial"
F.3d 920,
as
the Federal Rules of
or
"factual"
924-25
they relate to
because
the
n.5
attack.
(11th Cir.
immunity,
Court's
Civil Procedure may
Morrison
2003).
v.
Amway
Defendants'
are facial attacks on the
resolution
of
the
immunity
question does not depend on adjudicating the merits of the case.
Haven v.
Bd.
213-090,
2014 WL 5872671,
Eleventh
of Trs.
Circuit,
of Three Rivers Reg'l Library Sys. , No.
the
at *3
defense
(S.D. Ga.
of
Nov.
sovereign
12,
CV
2014)("In the
immunity
is
not
merely
a
defense
Amendment
subject
on
sovereign
matter
at
Rule 12(b)(1)
merits.
immunity
An
assertion
essentially
jurisdiction.")(citations
marks, omitted);
WL 1406415,
the
Johnson
*2
(N.D.
v.
Georgia,
Ga.
Apr.
of
challenges
and
No.
Eleventh
a
internal
court's
quotation
1:13-CV-3155-WSD,
9, 2014)
2014
(treating the state's
motion to dismiss the plaintiff's § 1983 and state
law claims on immunity grounds as a facial attack in the absence
of
citations to
attack
on
extrinsic evidence by the state) .
subject
matter
jurisdiction,
the
allegations are deemed presumptively truthful,
required
merely
sufficiently
v.
a
(11th Cir.
and
basis
of
United States v.
F.3d 1229,
Consol.
B.
look
alleged
Stalley ex rel.
Inc. , 524
to
1233
see
if
subject
In a facial
Complaint's
and the "court is
the
plaintiff
matter
has
jurisdiction."
Orlando Reg'l Healthcare Sys.,
(11th Cir.
2008)
(quoting McElmurray
Gov't of Augusta-Richmond Cnty. , 501 F.3d 1244,
1251
2007)).
Motion to Dismiss
for Failure to State a
Under Federal Rule of
Claim
Civil Procedure 8(a)(2),
a complaint
must contain "a short and plain statement of the
claim showing
that
the
the
pleader
is
entitled to relief"
to
give
defendant
fair notice of both the claim and the supporting grounds.
Atl.
Corp.
defendant's
v. Twombly,
Rule
550 U.S.
12(b)(6)
544,
motion
10
555
to
(2007) .
dismiss,
Bell
To survive a
therefore,
a
plaintiff's
complaint
to
right
raise
a
those facts must
its
face."
attacked
detailed
relief
Rule
550
than
at
an
accusation."
the
more
of
the
555.
unadorned,
Ashcroft
that
Although
motion
need
not
the
Rule
allegations
level,"
and
of
a
be
a
complaint
buttressed
cause
of
by
pleading
conclusions,
8 pleading
and
is plausible on
plaintiff's
labels
elements
The
speculative
570.
at
than
"factual
relief
allegations,
recitation
Id.
enough
above
U.S.
12(b) (6)
"requires
do."
more
a
include
"state a claim to
factual
obligation
not
to
Twombly,
by
formulaic
must
and
action
standard
a
will
"demands
the-defendant-unlawfully-harmed-me
v.
Iqbal,
556
U.S.
662,
678
(2009)
(quoting Twombly, 556 U.S. at 555).
At the same time, a complaint should not be dismissed for
failure to state a claim "unless it appears beyond a doubt that
the
plaintiff
can
entitle
him
(1957);
no
see also Kabir v.
2011
WL
Marshall
to
prove
4500050,
Cnty.
F.2d
1171,
must
accept
construe
relief."
Bd.
1174
all
as
of
true
circumstances
Gibson,
Statebridge Co.,
(N.D.
Educ.
Cir.
all
reasonable
of
Conley v.
*2
(11th
to the- plaintiff.
(11th Cir.
at
set
v.
Ga.
facts
Sept.
At
this
in
in the
Hoffman-Pugh v. Ramsey,
2002) .
11
27,
41, ' 45-46
2011)
Cnty.
alleged
inferences
U.S.
would
No.•1:11-CV-2747-WSD,
Marshall
1993)).
355
that
Gas
Dist.',
stage,
the
light
312
(citing
the
992
Court
complaint
most
and
favorable
F.3d 1222,
1225
C.
Qualified Immunity
"Qualified
government
immunity
officials
offers
sued
in
complete
their
protection
individual
for
capacities
if
their conduct does not violate clearly established statutory or
constitutional
known."
(11th
818
Grider
Cir.
(1982)
2 002))
v.
2010)
officials
fear of
which
of
a
and
out
suit
their
is
intended
liability or harassing
the
plainly
violating
the
federal
for
for bad guesses
transgressing
14-1962,
bright
2015 WL 3937653,
Davis v. Hall,
375 F.3d 703,
712
prove
authority.
2003)
that
he
Gonzalez
(citing Vinyard,
establish
that
they
was
v.
acting
Reno,
325
acting
12
800,
omitted).
allow
government
duties
without
or
Robinson
who
(citation
is
and
* [o]fficials
they are
v.
June 29,
the
protecting
one
In other words,
liable
Payton,
2015)
No.
(citing
2004)).
the government official must
within
F.3d
his
1228,
311 F.3d at 1346).
were
U.S.
(11th Cir.
Id.
(8th Cir.
1254
1346
litigation,
law."
(8th Cir.
To receive qualified immunity,
first
to
in gray areas;
at *3
1240,
457
have
marks
incompetent
lines."
would
F.3d
Fitzgerald,
discretionary
but
liable
618
quotation
internal quotation marks omitted).
are not
person
311 F.3d 1340,
internal
from
carry
personal
knowingly
Ala.,
(quoting Harlow v.
immunity
all
reasonable
Auburn,
and Vinyard v. Wilson,
to
suit
of
City
(alteration
''Qualified
from
rights
within
discretionary
1234
(11th Cir.
"Once the defendants
their
discretionary
authority,
that
the
burden
qualified
Alexander
v.
shifts
immunity
Bostic,
(quoting Lumley v.
is
458
to
the
not
plaintiff
appropriate."
F.3d
1295,
City of Dade City,
(11th Cir. 2003)).
1303
Fla.,
the
Court
addresses
if
true,
establish
Katz,
533
allegations,
Saucier
v.
construed
that
a
in
the
demonstrate
Gray
(11th
ex
Cir.
U.S.
light
constitutional
2006)
327 F.3d 1186,
whether
a
194,
most
right
suits
immunity
pursued
inquiry
intertwined."
1366
recognized
in
2010);
claims,
and
the
201
(2001).
plaintiff's
to
If
the
violation.
the
facts,
plaintiff,
been violated,
v.
42
the
U.S.C.
Rule
Inc.
(11th Cir.
Randall
Wooten
(accord).
under
GJR Invs.,
F.3d 1359,
then
v.
1998),
v.
Scott,
Campbell,
49
§
1983,
12(b)(6)
Cnty.
of
"the
show
the
Court
Escambia,
allegations
complaint
of
fact
must
that
determine that those facts,
F.3d
F.3d
696,
701,
699
contain
709
(11th
"specific,
enable
if proved,
the
Dalrymple v. Reno,
(11th
also
2003);
see
Randall,
13
Fla.,
132
(11th
Cir.
Cir.
1995)
from meritless
non-conclusory
district
court
to
will overcome the defense
of qualified immunity."
Cir.
become
overruled on other grounds as
610
will
Id.
qualified
standard
In order to protect public officials
the
1194
as a threshold
constitutional
favorable
has
First,
asks whether the right violated was "clearly established."
In
rel.
Courts then utilize a two-part framework to
evaluate the qualified immunity defense.
inquiry,
to
610
334
F.3d 991,
F.3d
at
996
709-10
("Pleadings
to
for
§ 1983
cases
involving defendants
assert qualified immunity as
a defense shall now be held to
comply with the standards described in Iqbal.
considering
a
motion
to
who are. able
dismiss
shall
A district court
begin
by
identifying
conclusory allegations that are not entitled to an assumption of
truth
—
legal
allegations.");
1304
(S.D.
conclusions
must
be
supported
Fla.
2008)
("[A]
claim
can
factual
536 F. Supp.
Staco v. Miami-Dade Cnty.,
by
2d 1301,
be
dismissed
where
a
plaintiff pleads facts or makes admissions that demonstrate that
a defense
Marsh
v.
Butler
2001)).
defense
is applicable on the face
Thus,
in a
Cnty.,
" [i]f
Rule
a
Ala.,
268
defendant
12(b)(6)
of the pleadings.") (citing
F.3d
1014,
asserts
a
1022
(11th
qualified
motion to dismiss,
the
Cir.
immunity
Court
should
grant qualified immunity if the plaintiff's complaint fails to
allege a violation of a clearly established constitutional or
statutory right."
Ga. , 477
Ala.
Williams v.
F.3d 1282,
State
Univ.,
1300
102
Bd.
of Regents of Univ.
(11th Cir. 2007)
F.3d
1179,
curiam)).
14
1182
Sys. of
(citing Williams v.
(11th
Cir.
1997)
(per
Ill,
Mr.
of a
DISCUSSION
Gibbons has alleged virtually every possible variation
§ 1983 claim,
as well as numerous state law claims,
eight named Defendants.
At the outset,
against
for the sake of clarity,
the Court outlines what i t understands those claims to be.2
•
In
Count
Martin
and
I,
Mr.
liable
Gibbons
for
claims
seeks
carrying
all
to
out
an
other
hold
Officer
unlawful
Defendants
stop
were
"deliberately indifferent to the need to train
Martin that a paper dealer tag, without more,
does not authorize a traffic stop"
(Am. Compl.
11 58-63);
•
In
Count
Martin
II,
Mr.
liable
obstruction
Gibbons
for
and
seeks
falsely
claims
to
hold
arresting
all
other
Officer
him
for
Defendants
"proximately
caus[ed]
out
of
indifference the unlawful stop," and
obvious that an unlawful stop would
false arrest for obstruction, so each
deliberate
uit was so
lead to a
supervisor
proximately caused the false arrest of Plaintiff
for
obstruction
by
reckless disregard"
•
In Count III,
Martin liable
Mr.
for
deliberate
indifference
or
(Id. 1 93) ;
Gibbons seeks to hold Officer
the use of any force because
2
It is worth emphasizing at this point that the Amended Complaint was
drafted by a lawyer; Mr. Gibbons has at all times been represented by legal
counsel.
Nevertheless,
Plaintiff's recent effort
n.2.)
as
is
Defendants point out,
"[i]n many
still a shotgun complaint."
(Defs.'
respects,
Br. at 1
Mr. Gibbons intersperses new facts throughout the body of the Amended
Complaint.
Instead of collectively referencing "Defendants" or "Defendant
Supervisors" as he did before, Mr. Gibbons simply substitutes a list of all
those
individuals
who
are
"plausibly supervisors"
"even though
it
is
also
plausible that . . . they did not have that responsibility."
(Am. Compl.
H 57.)
Moreover, despite the Court's instructions to the contrary (Doc. 38
at 8-9), Mr. Gibbons often includes multiple legal theories within a single
count, which only becomes clear in brief.
Thus, to the extent the Court's
interpretation is inconsistent
Court emphasizes that it is not
that could be made based upon
Corp. v. Dunmar Corp. , 43 F.3d
Income
Fund,
(11th Cir.
L.L.C
2002)
v.
Spear,
with the intent of Mr. Gibbons' counsel, the
required "to distill every potential argument
the materials before it."
Resolution Trust
587, 599 (11th Cir. 1995); see also Strategic
Leeds
& Kellogg
(citations omitted).
15
Corp.,
305
F.3d 1293,
1296
"Martin
did
not
have
probable
Gibbons
for
obstruction"
and
cause
claims
to
arrest
all
other
Defendants "are liable
, as shown by and
incorporated herein . . . , because false arrests
will highly foreseeably cause force to be used in
effectuating the arrest"
•
(IcL 11 100, 101);
In Count IV, Mr. Gibbons alternatively seeks to
hold Officer Martin liable for using excessive
force if the Court finds there was probable cause
to
arrest
for
misdemeanor
obstruction
and
claims
all other Defendants "proximately caused due to
deliberate indifference the challenged excessive
force
by
failing
to
train
Martin
how
to
appropriately use
the
taser
despite
Martin's
prior
history
of
excessive
taser
use"
(Id.
1 119);
•
In Count V, Mr. Gibbons alternatively seeks to
hold Officer Martin liable for using excessive
force if the Court finds.there was probable cause
to arrest for felony obstruction and claims all
other Defendants
"are
liable under
deprivation of Gibbons'
incorporating by
(Id. 11 120-23);
•
reference
In
Gibbons
Count
Martin
VI,
Mr.
liable
for
§
1983
for the
Fourth Amendment right,"
23
other
seeks
retaliating
to
paragraphs
hold
Officer
against " him
in
violation of the First Amendment;
•
In Count
Martin,
McBride,
VII,
Mr.
Gibbons
seeks
to
hold Officer
Officer
Jackson,
POS
Turner,
Chief
and John or Jane Doe liable "for causing,
the
obstruction
charge,
misdemeanor
and/or
felony, to go to trial, and for a conspiracy to
present false evidence during the trial" (Id.
1 130);
•
In
Count
VIII,
Mr.
Gibbons
contends
"conspiracy to prosecute Plaintiff"
"was
also
meant
to
chill
that . the
in Count VII
protected
First
Amendment activity to the right to a fair public
trial" (Id. 1 148);
16
•
In Count IX, Mr. Gibbons only says, "the same
facts underlying Claim I . . . supports a claim
for .a deprivation of a First Amendment right of
Gibbons'
freedom
of
movement
X,
Gibbons
and
travel"
(Id.
1 154);
•
In
Count
Martin
Mr.
liable
for
seeks
to
hold
"unreasonable
Officer
seizure
in
violation of ministerial duty" under Georgia law;
•
In Count XI, Mr. Gibbons seeks
Martin liable for false arrest;
hold
Officer
•
In Count XII, Mr. Gibbons seeks to hold
Martin liable for "abuse during arrest;"
Officer
•
In Count
XIII,
Mr.
Gibbons
to
seeks
to hold Officer
Martin liable for "intentionally caus[ing]
or
attempt[ing] to cause Plaintiff physical injury"
pursuant
to
O.C.G.A.
§ 51-1-13
and O.C.G.A.
§ 51-1-14,
statutes which define the scope of
tort law in Georgia;
•
•
In Count XIV, Mr. Gibbons seeks to hold Officer
Martin liable for false imprisonment; and
In Count XV,
against
Jackson,
caused
Mr.
Gibbons states
Defendants
and
a
Martin,
John
criminal
or
Jane
"[t]his claim is
McBride,
Doe,
prosecution
to
Turner,
because
be
they
instigated
against Plaintiff under process, out of malice to
get a wrongful conviction, prevent a future civil
suite [sic], and to cover up their own misdoings"
(Am. Compl. 1 178).
As Defendants summarize in response,
Defendants seek dismissal of all damage claims against
any
of
them
defendants
of
all
in
their
other than
claims
official
[Officer]
against
them
capacity.
Martin
in
All
seek dismissal
their
individual
capacity.
Defendant Martin seeks dismissal of all
claims against him in his individual capacity except
for Claims I through V.
17
(Defs.'
to
Br.,
Doc.
dismiss
now
42-1,
addresses
the
23-24.)
articulated
standards
at 3 n.4,
in Part
parties'
specific
Utilizing the motion
II,
supra.,
arguments
the
in
Court
logical
fashion.
A.
Mr.
Gibbons Cannot Sustain Any Claims Against Fictitious
John or
Jane
"As
general
a
permitted
734,
738
in
(11th Cir.
CV
12,
R&R
2012),
Actors
matter,
federal
Corr. , No.
5207472
Doe
(S.D.
rule exists
court."
2010);
612-022,
Oct.
Richardson
WL
as
22,
5207474,
modified,
2012).
A
"when the plaintiff's
is so specific as to be
v.
pleading
Johnson,
see also Fitzpatrick v.
2012
adopted
Ga.
fictitious-party
at
No.
*8
Ga.
1210,
No.
598
612-022,
1215-16
In
Jane
(11th Cir.
8:ll-CV-2521-T-30
May 17, 2012)
Doe
this
738
description of
TBM,
2012
Daleo v.
the defendant
Barber,
at
*4-5
and
identity.
951
Polk Cnty.
2012 WL 1805501,
WL
this
surplusage,'"
(quoting Dean v.
1992));
Sept.
limited exception to
xat the very worst,
F.3d at
F.3d
Dep't of
Ga.
thus discovery would uncover the unnamed defendant's
Richardson,
not
598
(S.D.
CV
is
F.2d
Sheriff,
(M.D.
Fla.
(citing Dean, 951 F.2d at 1215-16).
case,
with any
Mr.
Gibbons
does
specificity.
not
describe
In some
states that John Doe or Jane Doe
is a
18
Doe
or
instances,
he merely
"supervisor."
(See id.
UK 56, 63, 92, 93, 94, 101, 116, 119, 122.)
identifies John Doe and Jane Doe as
John
In the caption, he
"officers."
(See Am.
Compl.
at 2. )
In other paragraphs of the Amended Complaint,
or
Doe
Jane
"caused
were
[Mr.
"conspired
delegated
supervisory authority
Gibbons']
cause
to
obstruction
malicious
the
charge"
John Doe
(id.
prosecution"
^ 57),
(id.
H
(id.
130),
t
131) ,
conspired with other officers (id. ^ 146), were aware of certain
facts and "engaged in conspiratorial activity"
"caused
a
criminal
prosecution"
(id.
(id.
^ 178) .
descriptions and conclusory allegations
"do[]
revealed"
fishing
during discovery,
expedition
placeholders.
on
These
and
bare
not equate to
real possibility that these unknown individuals'
be
H 15 0),
the
identities will
and the Court will not enable a
account
of
Mr.
Gibbons'
use
of
See Fitzpatrick, 2012 WL 5207474, at *8.
In the very last of forty-four footnotes,
which is wholly
unrelated to the appended text, Mr. Gibbons responds that "[n]ew
Defendants can be brought in at least until the two year statute
of
limitations
has
passed,
so
if
new
evidence
or
discovery
reveals that an unnamed Defendant participated in the malicious
prosecution of Gibbons in 2013, he or she can still be added as
a party."
argument
(PL's Resp.,
is
unresponsive
Doc.
to
44,
at 25 n.44.)
the
Eleventh
standards for fictitious-party pleading.
reflect Mr. Gibbons'
in
this
Gibbons'
Circuit's
Nevertheless,
clear
it does
understanding of his right to move to join
additional parties at the appropriate time,
remains
Mr.
case.
Until
then,
19
the
if any such time
Court
DISMISSES
all
claims
against
John
Clerk,
as
as
in this
B.
well
Doe
and
Jane
the parties,
Doe.
The
to terminate
Court
DIRECTS
the
them as. Defendants
case.
Mr, Gibbons Cannot Sustain Any Claims Against Defendants in
Their Official Capacities
Defendants
agents
sued
argue
in
immunity under
that
their
the
the Board of
official
capacities
Eleventh Amendment
Br.
at
Defendants'
indicates
clearly
that
See LR 7.5,
he
Mr.
Gibbons
identified
does
not
entitled
on
to
this
dismissal
on
to
for monetary
for purposes of
failed
argument
oppose
are
its
§ 1983.
respond
issue,
these
to
which
grounds-.
SDGa.
Indeed,
Defendants
3-5.)
and any of
from claims
damages and otherwise are not "persons"
(Defs.'
Regents
in
in
this
case,
their
Eleventh Amendment.
Mr.
official
Gibbons'
§ 1983
capacities
are
claims
barred
against
by
the
The Eleventh Amendment bars suit against a
state brought by both citizens of another state and the state's
own citizens.
1252, 1256
McClendon v. Ga.
(11th Cir. 2001).
Dep't of
Cmty.
State agencies,
Health,
261 F.3d
like the Board of
Regents of the University System of Georgia, share this Eleventh
Amendment
Auth.,
713 F.2d 1518,
of Univ.
App.
immunity.
Sys.
2013) .
of Ga.
See
Fouche v.
1520-23
v.
Island-State
(11th Cir. 1983);
Barnes,
By extension,
Jekyll
743 S.E.2d 609,
Bd. of Regents
611
the Eleventh Amendment
20
Park
(Ga.
Ct.
a:lso bars
§ 1983
lawsuits
capacities,
the
real
1490,
"state
in
interest.
(11th Cir.
officer"
immunity,
of
State,"
2003)
425,
429-30
the
Officer
A
v.
State
defendant
v.
There
Defendants
to
the
Lee,
338
is no
(Wesley
and
POS
members of the GRU Police Bureau,
in
Eleventh
an
1308
v. Doe,
(11th
McBride,
Skinner,
(Ernest Black,
their
and
519 U.S.
Chief
Zachary
"arm
agents
1304,
that
F.3d
labeled a
acting as
of Cal.
dispute
49
receive
F.3d
Martin,
Turner,
Ala.,
state's
the Supervisor Defendants
Maxwell),
official
need not be
official"
includes
Manders
their
of
instead need only be
which
(1997)).
in
the state is considered to be
(citing Regents of the Univ.
Brian Jackson),
Eugene
officials
Cross
"state
but
instrumentalities.
Cir.
1995) .
or
Amendment
the
state
because in such cases,
party
1503
against
official
Jr.
and
and
roles
as
constitute "state officers"
or
"state agents" entitled to Eleventh Amendment protection.
Moreover,
plaintiff must
in
order
to
succeed
on
a
§
1983
of
Opa-Locka,
(emphasis added).
U.S.
58,
70-71
"a
show that he or she was deprived of a federal
right by a person acting under color of state law."
City
claim,
261
F.3d
1295,
1303
(11th"-
Griffin v.
Cir. • 2001)
In Will v. Mich. Dep't of State Police,
(1989),
the
Supreme
Court
held
that
491
neither a
state nor' its officials acting in their official capacities are
"persons" under § 1933.
McBride,
Therefore, Mr. Gibbons cannot sue Chief
the Officer Defendants,
21
the Supervisors Defendants,
or
POS
Turner
in
damages, .and
DIREQTS
their
those
official
claims
the parties .to
capacities
are. due
amend the
to
be
insofar
caption in
he
seeks
The
DISMISSED.
Court
all ,filings going
forward.
C.
as
,
:.
Mr. Gibbons Failure to Comply with the GTCA Bars His State
Law Claims
The
GTCA
sovereign
its
provides
immunity.
sovereign
provided
§ 50-21-21(a)
within
the
a
O.C.G.A.
immunity
in
for
this
only
limited
waiver
§ 50-21-23(b)
to
the
extent
article . . . .");
of
("The
and
the
state
in
see
State's
waives
the
also
manner
O.C.G.A.
("[T]he state shall only be liable in tort actions
limitations
of
this
article
and
in
accordance
with
the fair and uniform principles established in this article.").
In
order
certain
to
effectuate
prerequisites.
this
waiver,
O.C.G.A.
plaintiffs
§
50-21-35
must
satisfy
provides
in
pertinent part:
In all civil actions brought against the state under
this
article,
to
perfect
service
of
process
the
plaintiff must both: (1) cause process to be served
upon
the
chief
executive
officer
of
the
state
government entity involved at his or her usual office
address; and
director
of
Department
of
(2) cause process to be served upon the
the
Risk Management
Division of
the
Administrative
Services
at
his
or
her
usual office address.
Id.
The
procedural
components
terms, are strictly construed.
of
the
GTCA,
like
its
other
Green v. Cent. State Hosp.,
22
621
S.E.2d 491,
of Corr.,
In
the
(Ga.
Ct.
App.
503 S.E.2d 597,
this
second
Division
494
of
case,
598
contend Mr.
Gibbons
been
served at
all.
Mr.
Gibbons'
failure
director
of
of
the
Administrative
(Defs.'
to
Ga.
Pep' t
1998)).
the
Department
(citing Curry v.
(Ga. Ct. App.
Defendants
requirement:
the
2005)
Br.
at
respond
10
did
Risk
not
Management
Services
has
(citing Docs.
to
7,
Defendants'
identified argument on this point again indicates
meet
not
8).)
clearly
that he
does
not oppose dismissal on these grounds.3, 4 See LR 7.5, SDGa.
Failure
to
Administrative
serve
the
Services,
director
Risk
of
Management
the
Department
Division
of
precludes
compliance with the condition precedent to waiver of sovereign
3
Mr. Gibbons also did not respond to Defendants' argument that he failed
to comply with § 50-21-26(a)(4), which mandates that "[a]ny complaint filed
pursuant to [the GTCA] must have a copy of the notice of claim presented to
the Department of Administrative Services together with the certified mail or
statutory overnight delivery receipt or receipt for other delivery attached
as exhibits."
Id. (emphasis added).
Failure to cure this defect within
thirty days after the State raises the issue "shall result in dismissal
Id. (emphasis added).
Neither Mr. Gibbons' original
without prejudice."
Complaint (Doc. 1) nor his Amended Complaint (Doc. 40) addresses in any form
his compliance with the GTCA's service and notice requirements.
Mr. Gibbons
had until March 31, 2012 to file the notice of claim and delivery receipt,
which he did not do.
Accordingly, § 50-21-26 (a) (4) provides an independent
ground for this Court's DISMISSAL of Counts X, XI, XII, XIII, XIV, and XV.
4
Mr. Gibbons'
broad claim,
again buried in a footnote,
that he
"was not
required to comply with the notice provisions" of the GTCA because he is
suing Defendants uas individuals acting outside of the scope of their
official duties and employment" is wrong.
(PL's Resp. at 25 n.43.)
The
GTCA is the exclusive remedy for any tort committed by a state officer or
employee.
O.C.G.A. § 50-21-25(a). Those officers' or employees' immunity is
lost only wif it is proved that [their] conduct was not within the scope of
his or her official duties or employment."
Id. (emphasis added).
Mr.
Gibbons may not sidestep the GTCA's procedural requirements armed with
nothing more than mere allegations that Defendants, who engaged in certain
conduct as police officers, "stepped outside" the scope of their authority.
(PL's Resp. at 22-25.)
To hold otherwise would defeat the purpose of the
GTCA and eviscerate the limited waiver of immunity.
23
immunity
and
renders
void
Mr.
Gibbons'
statute of limitations is not tolled.5
94;
see also Henderson v.
(Ga.
1996) ;
(Ga.
Ct.
service
XII,
in
XIII,
The
law
2001) .
some
XIV,
on
the
of
March
1,
2014
2012 arrest)
on
Gibbons
July
of
When
limitation expires,
5
In 2007,
v.
621 S.E.2d at 493S.E.2d 614,
615
555
S.E.2d
741
DISMISSES
11,
as
expired
(Claims
on
X
X,
2 013
is
2 015
based
XI,
See
accomplished after
the
case here,
the statute only upon a
state
on
Mr.
(Claim XV based
acquittal) .
would be
in which i t held,
Gibbons'
XIV
O.C.G.A.
the
statute
the
timely-
showing that the
the Georgia Supreme Court decided Georgia
Summer1in,
740,
Counts
Mr.
—
and July 11,
service
filed complaint tolls
Bd.
the
475
Transp.,
Court
limitations
March 1,
§ 50-21-27 (c).
that
and XV of Mr. Gibbons' Amended Complaint.
Gibbons'
Mr.
such
Although a plaintiff may cure ineffective
instances,
statute
claims
Green,
Dep't of Transp.,
Sylvester v. • Dep'.t of
App.
action
Pines Cmty.
without overruling prior precedent,
Serv.
that
u[t]he service of process provision of the Georgia Tort Claims Act is
procedural in nature, not jurisdictional."
647 S.E.2d 566, 570 (Ga. 2007).
At
issue
in
Georgia
Pines
was
who
must
§ 50-21-35.
More specifically, the Court
have the summons and complaint handed to
state government entity involved and not
other agency employee in order to perfect
Pines,
647 S.E.2d at 568.
In the end,
be
served
and
how under
O.C.G.A.
considered whether a plaintiff must
the chief executive officer of the
to an administrative assistant or
service for GTCA purposes.
Georgia
the Supreme Court affirmed the Court
of Appeals' decision that service on the personnel manager was proper by way
of the Civil Practice Act and, in any case, the defendant waived any service
of process defense it may have had by its own actions during discovery.
Id.
at 567, 569.
Although the "procedural, not jurisdictional" language in
Georgia Pines is appealing, the Court finds it does not apply in a case like
this where no service of process occurred on one of the necessary parties.
To excuse as a mere procedural technicality Mr. Gibbons' failure to serve
process on the director of the Risk Management Division of the Department of
Administrative Services, especially where Defendants contested this failure
at the first opportunity and consistently thereafter, would render a nullity
the GTCA's service of process requirement and limited waiver of sovereign
immunity.
24
plaintiff
service
Corr.,
v.
acted
as
reasonably
quickly
as
486
598
S.E.2d
16)
their
(Ga.
v.
effecting
Georgia
1998)
Ct.
Mr.
the
Gibbons'
Department
Division,
motion
to
See Curry,
of
App.
1997)).
dismiss
Mr.
2014 when
(Doc.
at
15-
(Defs.'
2014
12
Br.
failure to effect service on the director
of
Administrative
Services,
Risk
Management
for over a year after filing the complaint, knowing of
Defendants'
precludes
Dep't
the service defect on July 3,
first
proper
(citing Patterson
and received renewed notice on December 1,
at 10) .
of
filed
661
in
Curry
(Ga. Ct. App.
660,
Gibbons became aware of
Defendants
diligently
possible.
503 S.E.2d 597,
Johnson,
and
attack
him
on
from
the
sufficiency
establishing
503 S.E.2d at 598-99.
lack
of
of
service
fault
of
for
process,
the
delay.
Thus, without a basis to toll
the statute of"limitations on his state law claims,
granting Mr.
Gibbons leave to cure service of process and re-file his
state
law claims would be futile.
D.
Defendants'
12(b)(6)
Challenge to the Federal Counts
Counts I through V: Unlawful Stop, False Arrest, and
1.
Excessive Force
All
Counts
I
Defendants
through
V
except
for
relief can be granted.6
Officer
Martin
failure to state
seek
a
dismissal
claim
upon
of
which
Within these counts, Mr. Gibbons seeks
to hold the Board of Regents liable prospectively for " [t]aser
6
Officer Martin also does not claim entitlement to qualified immunity at
this stage.
(See Defs.' Br. at 3 n.4, 23-24.)
25
training
and
supervision,
adequate
internal
and
officer
misconduct
supervision,
investigation and training for the manner in
which officers are to respond to persons with paper,
tags,
and office retention and termination policies"
t 16)
or dealer
based on facts scattered over 101 paragraphs.7
the
same
against
facts,
five
Mr.
additional
Black and Maxwell,
unclear
—
even
specifically
expressly
Gibbons
also
Defendants
the
challenged
advanced
by
(Chief
to
Based on
assert
claims
McBride,
Supervisors
and Officer Skinner).
POS Turner,
after
attempts
(Am. Compl.
It remains
original
and
Complaint's
the
opposing
qualified
counsel
sufficiency was
immunity
—
upon
defense
what
legal
theories relief is sought and in what specific manner these five
Defendants
acted
Notwithstanding
or
the
failed
to
act.
persistent
(See
Defs. '
deficiencies,8
Br.
it is
at
1-3.)
incumbent
upon the Court to identify the precise constitutional violation
charged
and
discussing
explain
liability in
738 F.3d 1246,
1250
what
this
(11th Cir.
the
violation
§ 1983
2013)
suit.
requires
Franklin v.
(citing Baker v.
before
Curry,
McCollan,
7
Neither party addresses Mr. Gibbons' claims against the Board of
Regents, whose name appears only twice in the Amended Complaint.
(Am. Compl.
111 8, 16.)
8
The
Circuit's
Court advises Mr. Gibbons' counsel to meditate
recent decision in Weiland v. Palm Beach Cnty.
over the Eleventh
Sheriff's Office,
No. 13-14396, .2015 WL 4098270 (11th Cir. July 8, 2015), especially its
discussion of the four sins of shotgun pleading.
Armed with Weiland's clear
roadmap, 2015 WL .
4098270, at *5 & n.10, the Court warns.Mr. Gibbons.^ counsel,
for the last time, that these are the 'standards to which his pleadings will
be held in all cases filed with this Court moving forward.
v.
Augusta,
No.' CV 114-110,
2015 WL 800206,
2015).
26
See also Pearson
at *1 n.l (S.D.
Ga.
Feb.
24,
443
U.S.
137,
140
(1979));
2:13-CV-02108-WMA,. 2014
WL
Tolbert
3892115,
at
v.
*2
Trammel1,
(N.D.
Ala.
No.
Aug.
4,
2014)' ;
To narrow down this
task,
the
II and III against Chief McBride,
POS
Turner,
Count
II
and
Officer
contends
Mr.
Court
first DISMISSES
Counts
Supervisors Black and Maxwell,
Skinner
for
Gibbons'
failure
arrest
for
to
state
a
obstruction
claim.
lacked
probable cause and that "it is obvious that an officer will need
to be trained to not make the unlawful stop in the first place
in
order
(Am.
to
avoid
Compl.
allegations
facts
to
against
Turner,
H
Moreover,
a
92,
for
away
93,
94),
supervisory
McBride,
Officer
arrest
Stripping
Ht 89,
support
or
false
89.)
(id.
Chief
a
Mr.
Gibbons'
liability
related
obstruction."
conclusory
there are no well-pleaded
Supervisors
Skinner
perceived
claim
Black
to
the
any
kind
Maxwell,
and
of
POS
obstruction
arrest.
Officer Martin's alleged disagreeable disposition (id.
HH 90, 91) simply is not a matter of constitutional concern.
Count
Martin
traffic
did
III
is
not
stop
or
based
have
the
on Mr.
Gibbons'
probable
arrest
cause
an- illegal
stop
or
however,]
arrest
to
make
for obstruction,
could not use any degree of force.
this Circuit's law[,
assertion
that
the
and
Officer
challenged
accordingly
(Am. Compl. ^ 100.)
"Under
... a claim that any force in
is excessive
is
subsumed
in
the
illegal stop or arrest claim and is not a discrete excessive
27
force claim."
(11th Cir.
Bashir v.
2006)
Rockdale Cnty.,
445
(emphasis and citation omitted).
Claim III fails as a matter of law.9/10
Mr.
Gibbons
F.3d 1323,
intends
Moreover,
1331-32
Accordingly,
to the extent
to append a supervisory liability to
Count
III, it is inadequately pleaded.
The sole allegation related to
Chief
and Maxwell,
McBride,
Officer
Skinner
reference
that
Defendants
Gibbons'
Supervisors
"are
Fourth
is
lead
an
to
liable
Black
endless
the
following
under
Amendment
§
right
contends Officer Martin tased Mr.
for arrest,
force
to
be
maze
for
Turner,
and
incorporations
legal
1983
as
of
POS
conclusion:
the
claimed
in
these
deprivation
f
100,"
by
of
which
Gibbons without probable cause
"because false arrests will highly foreseeably cause
used
in
effectuating
the
arrest."
(Am.
Compl.
H- ioi.)
That leaves Count I, as well as
Gibbons
frames
in
the
alternative
Counts IV and V,
to
later finds
that Officer Martin made
misdemeanor
or
felony
obstruction.
9
The Court also DISMISSES Count III
on this same ground.
io
III
lawful
arrest
As
the
if
Court
the
Court
for either
did
above,
as asserted against Officer Martin
"This is not to say that [Mr. Gibbons]
force used in his arrest"
a
Count
which Mr.
cannot recover damages for the
if the Court later finds the arrest was unlawful.
Bashir, 445 F.3d at 1332.
"To the contrary, the damages recoverable on an
unlawful arrest claim 'include damages suffered because of the use of force
in effecting the arrest.'" Id. (citing Williamson v. Mills,
59 (11th Cir. 1995) and Motes v. Myers, 810 F.2d 1055,
1987)) .
28
65 F.3d 155,1581059 (11th Cir.
stripping
away
Mr.
Gibbons'
conclusory
allegations,
remaining counts appear to hinge only on the following:
(1)
Defendants
McBride,
position and rank,
Black,
based
and Maxwell,
on
are plausibly supervisors who
had the responsibility or had been delegated the
responsibility
to
correct,
train,
or
retrain
officers who deprive citizens of constitutional
rights, even though it is also plausible that
with respect to McBride, Black and Maxwell they
did not have that responsibility or delegated it
to one of the other Defendants including John or
Jane Doe (Am. Compl. U 57 (emphasis added));
(2)
Defendant
Skinner
is
plausibly
a
direct
supervisor of Martin based on his signature as
Martin's
supervisor on a Taser use of
force
report concerning an incident on 09-09-11, even
though it is also plausible that
Martin's
direct
supervisor
Skinner is not
because
John
or
Jane
Doe is his supervisor" (Id. % 57) ;
(3)
Officer Martin stopped Mr. Gibbons in September
2 010
solely for having a paper tag and the
charges
ultimately were dismissed,
facts
his
supervisors "must have known" (Id. %^ 44, 58-62);
(4)
During the
September 2010
traffic stop,
Martin and Skinner cuffed Mr. Gibbons
that his wrists bled (Id. f 36) ;
Officers
so tightly
(5)
Officer Martin was not sanctioned or punished as
a result of
the September 2010
traffic stop
(Id. H 45);
(6)
Officer
criminal
Martin's
trial
testimony
on
the
during
March
Mr.
2 012
Gibbons'
obstruction
charge
revealed that
"GRU officers
regularly
pulled over cars because they had a paper tag,
without more, making the citizen produce paper
and
often
charging
them
with
improper
registration
or
no
tag"
(Id.
f 47
(emphasis
added));
(7)
"Before [Officer] Martin's 2012 stop of Gibbons,
none of the Defendant Supervisors . . . trained
2 9
the
or informed Martin that a paper tag without more
does not authorize him to conduct a traffic stop"
(Id. H 56);
(8)
" [B]efore
March
1,
2012,
Gibbons
[sic]
had
numerous
encounters with citizens
revealing a
tendency to
overreact and fail
to reasonably
communicate with citizens, that Martin caused to
escalate
to
the
point
where
he
unlawfully
justified his use of force" (Id. t 91);
(9)
"Defendant Supervisors
. . . knew . . . of
[Officer] Martin's tendency to overreact and fail
to reasonably communicate, yet failed to take
corrective
action
including
either
training,
transferring or terminating him,
as
shown by
[Officer]
Martin's
continued
employment"
(Id.
11 94);
(10) * [POS] Turner who had had no training relative to
conducting an investigation found nothing wrong
with [Officer] Martin's actions during the 2012
stop of
Gibbons,
despite
the
several policy
violations
readily
discernible
from
[Officer]
Martin's
incident"
(11)
admissions
and
the
video
of
the
(Id. t 108);
"[POS]
Turner incompetently believed
[Officer]
Martin's story about inadvertently pulling the
trigger by failing to compare [Officer] Martin's
story to the video of the incident" (Id. f 111);
(12)
" [POS]
Turner
passed
on
her
finding,
that
[Officer]
Martin
did
nothing
wrong
in
the
challenged accident, to the chief of the entire
department, Chief McBride, who reviewed it and
did not object" (IcL t 114); and
(13) "[u]pon information and belief, [Officer] Martin
has prior incidents of use of the taser that is
or
could
be
excessive,
based
on
the
high
frequency of use" (Id. ^ 115) .
Mr. Gibbons does not allege that Chief McBride,
Black
and
Maxwell,
Officer
Skinner,
30
and
POS
Turner
Supervisors
personally
participated
arrest,
in
or
otherwise
the
unlawful
or use of excessive force in March 2012.
allegations above and Mr.
Mr.
ordered
Gibbons'
briefs,
stop,
Thus,
false
from the
the Court understands
Gibbons to claim that these Defendants did nothing by way of
training or supervision to ensure that Officer Martin no longer
(1)
used
initiated stops
excessive
carrying
out
solely on the basis
force
stops
—
or
specifically,
arrests.
of
a paper tag or
"excessive
Because
Mr.
tasing"
Gibbons'
Amendment claims are asserted against these Defendants
capacity
as
deciding
—
supervisors,
that
Officer
Amendment rights.
the
Court
Martin
will
violated
See Dalrymple,
assume
Mr.
—
—
in
Fourth
in their
without
Gibbons'
334 F.3d at 995
(2)
Fourth
(articulating
the methodology for resolving claims of supervisory liability);
McDaniel
*15
v.
(N.D.
whether
Yearwood,
Ga.
Feb.
[these
No.
16,
2:11-CV-00165-RWS,
2012).
Defendants']
"The
at *15
WL
question
'supervisory
alleged deprivation of those rights."
2012
then
actions7
McDaniel,
526078,
at
becomes
caused
the
2012 WL 526078,
(citing Gonzalez, 325 F.3d at 1234).
a.
The Legal Standard for Supervisory Liability
Claims
It is well-established that supervisors are not subject to
§ -1963
liability
under
vicarious liability.
1047
(11th Cir.
2014)
theories
of
respondeat
superior
or
Keith v. DeKalb Cnty., Ga., 749 F.3d 1034,
(citing Cottone v.
31
Jenne,
326
F.3d 1352,
1360
(11th
federal
their
Cir..
2003)).
supervisors-
law and be held individually liable
subordinates
participates
there
Instead,
is
in
a
only
the
alleged
causal
supervising
Id.
quotation marks
the
and
(quoting Cottone,
omitted).
A
connection by alleging that:
supervisor . personally
between
the
violation
the
of
the
(internal
establish a
a history of
when
constitutional
326 F.3d at 1360)
can
or
actions
alleged
plaintiff
(1)
violate
for the conduct of
constitutional
connection
official
deprivation."
"when
can
causal
widespread abuse
puts the responsible supervisor on notice of the need to correct
the
alleged
deprivation,
and
he
fails
to
do
so;
(2)
a
supervisor's custom or policy results in deliberate indifference
to constitutional rights; or
(3)
facts support an inference that
the supervisor directed subordinates to act unlawfully or knew
that
subordinates would act unlawfully and failed to
from doing so.
Cir. 2009)
Cir.
Williams v. Santana, 340 F. App'x 614, 617 (11th
(citing Mathews v. Crosby, 480 F.3d 1265, 1270
2007));
5:12-CV-148
2013).
stop them
see
MTT,
"The
also
2013
Easley
WL
v.
5592514,
deprivations
that
Macon
at
*2
Police
(M.D.
constitute
Dep't,
Ga.
Oct.
widespread
(11th
No.
10,
abuse
sufficient to notify the supervising official must be obvious,
flagrant,
rampant
and
isolated occurrences."
Brown v.
Crawford,
906
of
continued
Santana,
F.2d 667,
32
340
671
duration,
F.
App'x at
(11th Cir.
rather
617
than
(quoting
1990)).
"In
short,
the standard by which a supervisor is held liable in his
individual
extremely
capacity
for
rigorous."
the
Keith,
actions
749
of
F.3d
at
a
subordinate
is
(citation
and
1048
internal quotation marks omitted).
Mr.
—
that
Gibbons'
Chief
Skinner,
claims for relief in Counts
McBride,
Supervisors
Black
I and Counts
and
Maxwell,
IV/V
Officer
and POS Turner failed to adequately train or supervise
Officer Martin —
implicates
a different,
albeit
very
similar,
rule: "under § 1983, a supervisor can be held liable for failing
to train his or her employees only where
the failure
to train
amounts to deliberate indifference to the rights of persons with
whom the
officers
(alteration,
come
citation,
into contact."
and
Keith,
74 9
internal quotation
F.3d at
marks
1052
omitted).
"Failure to train can amount to deliberate indifference when the
need for more or different training is obvious,
...
such as
when there exists a history of abuse by subordinates that has
put
the
supervisor
measures,
on
notice
. . . and when
result in the
the
need
for
the failure to train
corrective
is likely
violation of a constitutional right."
2012 WL 526078,
F.3d 1390,
of
at *16
1397-98
(quoting Belcher v.
(11th
Cir.
1994)).
McDaniel,
City of Foley,
"Thus,
to
a
30
plaintiff
alleging a constitutional violation premised on a failure to
train
must
demonstrate
that-
the
supervisor
had
xactual
or
constructive notice that a particular omission in their training
33
program
causes
constitutional
[his
rights,'
supervisor chose
F.3d at 1052
or
to
her]
employees
and that
to
violate
armed with that
retain that
knowledge
training program."
(quoting Connick v. Thompson,
citizens'
the
Keith,
131 S. Ct.
749
1350,
1360
(2011)).
b.
As
Analysis
a preliminary matter,
supervisory
Maxwell,
liability
Officer
the
claims
Skinner,
Court DISMISSES
against
and
POS
Mr.
Supervisors
Turner.
Black
With
have
alleges
known"
about
that
because
the
(1)
of
their
"regular
vehicles based on paper tags,
(2)
to
Mr. Gibbons
titles,
practice"
and
respect
Supervisors Black and Maxwell and Officer Skinner,
essentially
Gibbons'
"must
they
of
stopping
internal affairs complaints
filed against Officer Martin, and (3) dismissal of Mr. Gibbons'
citation in 2010.
(Am. Compl. HI 59-61 (emphasis added).)
only
in
allegations
excessive
force
conclusory.
relation
that
(See
to
involve
Am.
Officer
these
Compl.
Martin's
Defendants
f
116
The
use
are
of
wholly
("Defendant
supervisors . . . are liable under § 1983 for the deprivation of
Gibbons'
Fourth Amendment right as claimed in H 113.");
("Defendant
deliberate
failing
supervisors . . . proximately
indifference
the
challenged
caused
excessive
to train Martin how to appropriately
34
use
K 119
due
to
force
by
the taser
despite Martin's prior history of excessive taser use.");
("Defendant
supervisors . . . are
deprivation
of
Gibbons'
Fourth
liable
under
Amendment
§
right
1983
as
H 122
for
the
claimed
in
1 121).)
Simply,
of
[these
their
Mr.
Gibbons
Defendants']
personal
Martin],
"alleges nothing about the significance
titles,
interactions
their length of
[or]
were
or
Indeed,
with
. . . ,
[Officer
their management policies,
deliberately indifferent
the manner
roles
or
that would bear on whether they knew
conduct and the risk he posed."
52.
individual
familiarity
service,
any other characteristics
about
their
in
to
[Officer Martin's]
See Franklin,
which Mr.
738 F.3d at 1251-
Gibbons
first
identifies
these individuals as "supervisors" reflects that he simply does
not know
any
details
Compl.
57
("Defendants . . . Black []
H
about
their responsibilities.
and
(See Am.
Maxwell,
based
on
position and rank . . . are plausibly supervisors . . . [,] even
though it is also plausible that . . . they did not have that
responsibility ....
Defendant Skinner is plausibly a direct
supervisor
based
of
Martin
on
his
signature . . . [,]
even
though it is also plausible that Skinner is not Martin's direct
supervisor.").)
"Far
from
pleadings,
this
admission
conclusion"
that Mr. Gibbons'
excusing
only
[his]
reinforces
insufficient
[the
Court's]
claims against them are due to be
dismissed, as there are no individualized allegations from which
35
the Court could infer their subjective awareness of
the risk of
harm that Officer Martin purportedly posed and that each of them
exhibited
deliberate
indifference
sufficient
to
claim.
Keating
v.
(quoting
City
Miami,
556 U.S.
Supervisors
Gibbons'
does
supervisor.
appointed
a
of
Iqbal,
Unlike
Mr.
state
not
Rather,
POS
Franklin,
598
738
753,
own
F.3d
763
at
(11th
actions
1252
Cir.
n.6;
2010)
at 676).
Black and Maxwell
allege
Mr.
Turner
F.3d
his
through
outright
Gibbons
to
and Officer Skinner,
that
asserts
undertake
POS
Turner
that
the
Chief
internal
was
McBride
affairs
investigation of Officer Martin's conduct in 2010 and 2012,
Turner
had no
and that
Chief
training
other
to
internal
POS
investigations,
McBride previously selected a parking attendant
to carry out such work.
only
respective
a
relevant,
(Am. Compl. fH 39-41, 108, 111.)
non-conclusory allegations
are
that
The
POS
Turner passed on her findings to Chief McBride and Chief McBride
ratified those findings.
the
fact
that
POS
(Id^ KH 44, 114, 118.)
Turner
investigated
Thus, based on
Officer
Martin,
Mr.
Gibbons contends POS Turner "was deliberately indifferent to the
need to train Martin,
or cause Martin to be
appropriate supervisor,
that a paper dealer tag,
does not authorize a traffic stop" and
to deliberate
indifference
the
36
trained by the
without more;
"proximately caused due
challenged
excessive
force
by
failing
to
train
taser,.
. . ."
how
to
appropriately
likewise
claim.
Not
finds
these allegations
only does Mr.
Gibbons
GRU
from which the
Police
institute
the
Bureau
Court
chain
corrective
could infer that
of
command
measures
or
or
to allege
that
there are no other
POS
had
make
insufficient to
fail
POS Turner is a supervisor of Officer Martin,
facts
use
(IcL t1f 62, 119.)
The Court
state a
Martin
Turner is
any
in the
authority
recommendations
to
with
respect to Officer Martin's behavior beyond passively reporting
the results of her investigation to Chief McBride.
for
supervisory
liability
against
POS
Turner,
The claims
therefore,
are
also DISMISSED.
The
McBride,
Court
now
turns
to
the
last
man
standing,
Chief
and whether the Amended Complaint sufficiently alleges
a causal connection between Chief McBride's failure to supervise
or train and the purported constitutional violations carried out
by Officer Martin in March 2012.
most favorable to Mr.
Viewing the facts in the light
Gibbons - as the Court must do -
the Court
examines the Amended Complaint to determine what allegations, if
any, address Chief McBride's (1) knowledge of Officer Martin's
allegedly unlawful practices at the point of his misconduct in
March
2012
and
(2)
actions
that
indifference.
37
raise
an
inference
of
With
respect
surrounding
that
the
Officer
account
to
traffic
Martin
of
Mr.
his
Gibbons'
stop,
pulled
failure
the
Amended
to
train
Complaint
Gibbons
over
tag,
over
the
approximately eighteen months.
reflects
solely on
twice,
dealer
paper
Mr.
claim
course
of
Chief McBride knew that Officer
Martin had done so as a result of an investigation into the 2010
stop,
carried
McBride
Martin
cars
and
also
out
by
POS
ultimately
explained
Turner
approved
that
GRU
by
the
direction
Chief
at
of
McBride.
Chief
Officer
regularly pulled
officers
solely because they had a paper tag.
over
Chief McBride then
purposefully selected an incompetent investigator in 2010 so as
to clear Officer Martin of any wrongdoing.
dismissal
nearly
of
Mr.
Gibbons'
2010
identical
unlawful
stop
charges
in
Lastly,
post
2012,
Mr.
despite the
investigation,
Gibbons'
internal complaint with the GRU Police Bureau, and Mr.
subsequent
acquittal
on
charges
stemming
from
the
a
renewed
Gibbons'
2012
stop,
Chief McBride retained Officer Martin on the force.
Similarly, with respect Mr. Gibbons' failure to train claim
surrounding Officer Martin's use of excessive force, the Amended
Complaint
reflects
incidents
of
force
approximately
that
Officer
during
eighteen
Martin
traffic
months:
was
stops
Mr.
involved
over
Gibbons
the
was
in two
course
cuffed
of
too
tightly by Officers Martin and Skinner in September 2010 and
Officer
Martin
tased
Mr.
Gibbons
38
five
times
in
March
2012.
Chief
McBride
cuffing
knew
because
the
of
the
complaint filed by Mr.
Chief
McBride's
before
March
citizens
caused
2012
stop
resulted
internal
Mr.
Gibbons
Martin
a
tendency
to
had
to
the point
further
"numerous
where
he
alleges
that
encounters
with
unlawfully
force,"
frequency,"
statistics about which were reported
As
in
incompetent
severe
affairs
overreact . . . that
his use of
n.8).
in
Gibbons and investigation carried out at
Officer
escalate
2010
previously-described
direction.
revealing
to
September
Martin
justified
and he used his taser with alarmingly "high
2010,
Chief
investigator
in
McBride
2012,
(Doc. 19 at 11
purposefully
whose
results
selected
Chief
an
McBride
ratified, resulting in zero discipline.
Mr.
Gibbons
has
not
adequately
alleged
that
there
was
a
history of widespread prior abuse, as defined in Brown, 906 F.2d
at
671,
that
put
Chief
McBride
on
improved training or supervision.
whether
Chief
Martin when
McBride's
faced with
failure
(1)
a
notice
of
the
The question is,
to
train
significant,
or
need
therefore,
supervise
but
for
single
Officer
concrete
complaint about an unlawful stop carried out by Officer Martin
during which Mr.
(2)
Gibbons was cuffed to the point of bleeding;
testimony that suggests GRU Police Bureau
"regular"
officers had a
practice of stopping citizens for paper tags during
39
the relevant time period;11
of
taser use;
and
(4)
(3)
Officer Martin's high frequency
and Officer Martin's
"numerous"
confrontations with the public constitute a
as
to which Chief McBride
The
Court
showed deliberate
concludes
that
Mr.
pattern of behavior
indifference.
Gibbons'
allegations
narrowly sufficient to survive a motion to dismiss.
rare
case
citizen
in
which
and
same
same
the
the
conduct
law
recurred
enforcement
escalated
are
This is the
between
same
which
officer,
the
was
investigated by the same individual at the direction of the same
superior,
and
violation
of
allegations
McBride
this
recurrence
constitutional
as
true,
— as
the
a
September
2010,
approval
of
department's
of
Officer
(Count I),
and
the
rights.
reasonable
head
investigation into Mr.
allegedly
of
the
ultimate
resulting
Accepting
jury could
department,
Gibbons'
resulted
the
infer
that
Chief
of
the
complaint
in
with
respect
to
report
and
maker
investigative
the
foregoing
initiator
specific internal
decision
in
the
response thereto — knew or should have been aware
Martin's
and
other
deputies'
stops
for
paper
tags
as well as Officer Martin's use of unreasonable force
(Counts IV/V).
See,
e.g.,
Gonzalez v.
Israel,
No.
15-CIV-60060,
11
The Court recognizes that Officer Martin's testimony about this
practice is temporally problematic; it was elicited during Mr. Gibbons' July
2 013
criminal
trial
for
obstruction,
more
than 15 months
after the
traffic
stop during which Mr. Gibbons was tased. Although the testimony itself could
not have put Chief McBride on notice of Officer Martin's unlawful practices
in time to prevent the March 2012 stop, from the substance of the testimony,
as alleged, a jury could infer that the practice was systematic and ongoing
at the time of and before the March 2 012 stop,
knew or should have known about i t .
40
and Chief McBride,
therefore,
2015 WL 1143116,
at
*14
(S.D. Fla.
Mar.
13,
2015)
(finding the
plaintiff's allegations — a "string of facts to effect that
was unqualified for his position"
officer]
previously engaged in activity identical
[the
and that the officer
to
that
complained of
by the plaintiff — sufficient to survive a motion to dismiss on
his
municipal
liability
claim
supervise); Hooks v. Rich,
n.6
(S.D. Ga. Mar.
* [r]epeated
abuse
constitute
a
Pittsburgh,
89
complaints
the
F.3d
jury to
officer's
a
pattern
(noting,
of
972-73
to
train
2006 WL 565909,
may
(citing
(3d Cir.
involving
be
or
at *4
in the § 1983 context,
officer
abuse"
officer
failure
CV 605-065,
single
966,
an
arresting citizens
for
7, 2006)
by
about
No.
for
that
sufficient
Beck
1996)
v.
City
to
of
(finding prior
violent
behavior
in
identical to those at issue were sufficient
infer that municipality had knowledge of :that
propensity
for
misbehavior
and
could
support
the
conclusion that municipality had a pattern of tacitly approving
the use of
v.
excessive force) )) ; Wilson ex rel.
Miami-Dade
(S.D.
Fla.
Cnty.,
Sept.
19,
No.
04-23250-CIV,
2005)
2005
Estate of
WL
3597737,
Wilson
at
*4
(denying county's motion to dismiss
where the plaintiff alleged that it was aware of other incidents
of similar conduct by an individual
employee
that
supported a
theory that there was a failure to supervise that employee); see
also Geist v. Ammary,
(E.D.
Pa.
Dec.
20,
No.
2012)
CV 11-07532,
(finding
41
2012
§1983
WL
6762010,
claims,
at ~*7
based- on
failure . to
pleaded
train
where
and
the
deliberate
plaintiff
indifference,
alleged
that
the
sufficiently
city. provided
a
particular officer a taser despite inadequate training and with
actual
notice
past).
Cf^
1044175,
at
that
the
Sigler
*3
officer had. used
v.
(S.D.
Bradshaw,
Fla.
excessive
force
No.
10,
Mar.
13-80783-CIV,
2015)
in
the
2015
WL
(dismissing
the
plaintiff's claim that state agency violated her constitutional
rights
by
failing
to
properly
train one
specific
investigator
because she failed to allege any other misconduct apart from her
own
situation;
such
an
"isolated
occurrence"
did
not
put
the
agency on notice of an omission in its training program);
Owens
v.
(S.D.
City
Fla.
of
2001)
Fort
(granting the
the
plaintiffs'
way
of
a
Lauderdale,
claim
failure
to
174
F.
Supp.
2d
city's motion for
that
it was
train
on
1282,
summary judgment on
deliberately
the
use
1297
of
indifferent
chokeholds
by
because
plaintiffs presented only two similar,
unsubstantiated previous
incidents,
the
thereby
failing
to
present
kind
of
pattern
or
series of violations which would place the city on notice that
its training program was inadequate) ; Dowde11 v. Chapman,
Supp.
533,
546
(M.D.
occurrence . . . cannot
Ala.
be
1996)("[A]
the
basis
single
of
a
and
viable
93 0 F.
isolated
action
predicated on § 1983 because such an unusual occurrence does not
rise
to
the
level
of
xdeliberate
42
indifference'
necessary
to
succeed
on
a
claim
for
failure
to
adequately
train
police
officers.") .
These findings,
however,
do not end the Court's inquiry,
as
Chief McBride argues that he is entitled to qualified immunity.
Although
Chief
alleged,
McBride's
to
train
or
supervise,
could constitute a constitutional violation,
must still evaluate
were within his
violation
Sipple,
failure
was
(1)
the Court
whether his challenged acts or omissions
discretionary authority and
clearly
as
established
at
(2)
the
whether such a
time.
Maggio
v.
211 F.3d 1346, 1350 (11th Cir. 2000).
Whether Chief McBride Acted Within His
i.
Discretionary Authority
"A government
purview of
his
official proves that he
acted within
discretionary authority by showing
the
xobjective
circumstances which would compel the conclusion that his actions
were undertaken pursuant to the performance of his duties and
within the scope of his authority.'"
F.2d 1531,
1537
(11th Cir.
F.2d 1558,
1564
(11th Cir.
Ga. , 890 F.2d 396,
rel.
2014)
Hatcher
v.
404
Fusco,
1990)
Hutton v. Strickland,
919
(quoting Rich v. Dollar,
841
1988)); Hudgins v.
(11th Cir.
570 F.
1989));
App'x
874,
City of Ashburn,
see also Hatcher ex
877 n.3
(11th Cir.
("In the qualified immunity context, a government official
acts within the scope of [his] discretionary authority when [he]
pursues a job-related goal through means that are within [his]
43
power to utilize."
370
F.3d
378
1252,
F.3d
1265-66
1201,
discretionary
activity
(citing Holloman ex rel.
1205
a
in a
2 004)
of
Crosby v.
2004)));
Cir.
inquiry
part
responsibilities");
Cir.
(11th
authority
"is
(11th Cir.
(11th
Holloman v. Harland,
2004)
looks, to
his
O'Rourke
Hayes,
(explaining
whether
job-related
Monroe Cnty.,
v.
394
the
defendant's
powers
and
F.3d 1328,
1332
(uTo determine whether an official was engaged
discretionary
function,
we
consider whether
the
acts
the
official undertook are of a type that fell within the employee's
job responsibilities.").
Here,
Mr.
Gibbons
specifically alleges
that
Chief
McBride
was acting under color of state law in his capacity as the Chief
of
Police
for
the
GRU
Police
Bureau
and
Director
of
Public
Safety at all times relevant to the claims asserted against him.
(See Am. Compl. f 7.)
subordinate officer,
citizen
complaint,
As Defendants point out, * [s]upervising a
assigning an investigator to investigate a
investigating
a
citizen
complaint
implementing a policy . . . , and training officers
all job related functions" that Chief McBride
,
. . . are
carried out only
as a result of his employment with and authority within the GRU
Police Bureau.
(Defs.'
Reply, Doc. 48,
at 7-8.)
Accordingly,
the first prong of the qualified immunity inquiry is satisfied.
See,
1036,
e.g. , Daniels v.
1057
City of Hartford,
(M.D. Ala. 2009)
Ala.,
645 F.
Supp.
2d
(noting "courts have uniformly held
44
that
supervision
officers
of
[sic]
authority"
of
is
sheriffs);
(finding
Herrick v.
at
*9
Langley
Btesh v.
was
WL
officers
is
aff'd sub nom.,
Ga.
20 09)
acting
training
of
within
City
3269647,
chief's
Carroll Cnty.,
(N.D.
and
activity
2011
police
supervise police
authority"),
jail
an
6:10-cv-71-ORL-19DAB,
2011)
a
of
at
"alleged
corrections
the
discretionary
Maitland,
*37
n.34
failure
No.
within
his
is
no
(M.D.
train
No.
Fla.
and
discretionary
(11th Cir.
1:09-CV-0161-JEC,
("There
Fla.,
to
a matter within his
471 F. App'x 883
of
2012);
2009 WL 3094843,
question
that
discretionary
Sheriff
authority
in
training and supervising his subordinates . . . .").
ii.
Whether Chief McBride's Actions Violated
Clearly Established Constitutional Law
The Supreme Court has
a
constitutional
right
emphasized that
was
clearly
"determining whether
established
'must
undertaken in light of the specific context of the case,
a
broad
general
proposition.'"
Vinyard,
(quoting Saucier, 533 U.S. at 201) .
311
F.3d
The relevant,
be
not as
at
1349
dispositive
inquiry is "whether it would be clear to a reasonable officer
that
his
conduct
Saucier,
533
U.S.
state of
the
law
his
Hope,
conduct
was
at
202
his
at 740.
in
the
(emphasis
. . . gave
deprived
536 U.S.
unlawful
situation
added),
[the officer]
victim
of
a
and
confronted,"
"whether
'fair warning'
constitutional
See also Oliver v.
45
he
Fiorino,
the
that
right,"
586 F.3d
898,
907
inquiry
(11th
as
reasonable
violates
Cir.
2009)
whether
it
(framing
would
officer- would
[a
quotation
that
right")
omitted).
"clearly
"sufficiently
understand
Constitutional],
marks
be
the
In
established"
clear
what
he
(citations
most
is
and
cases,
that
a
doing
internal
fact-specific
precedents are necessary to give an officer fair warning of the
applicable
(11th
law.
Cir.
Eleventh
2 014)
Circuit
know that his
907
See Jay v.
("We
(describing
to
evaluate
conduct
have
terms,
has
not
almost
always
said
many
staked
protects
Mattox,
plaintiff may
broader,
facts
also
the
two
whether
a
579
times
out
a
the
that
case
meet
his burden by
law,
(quoting
the
would
586
F.3d at
in
factual
immunity
Priester
v.
(11th Cir. 2000)
(11th Cir.
showing
1997) )) .
(1)
A
"that
a
clearly established principle should control the novel
in
exception
this
of
situation"
conduct
or
which
(2)
so
"this
case
fits
within
obviously1 violates
constitution that prior case law is unnecessary."
1159
(11th Cir.
"Furthermore,
to decide
the
the
[the]
Keating,
F.3d at 766 (quoting Mercado v. City of Orlando, Fla.,
1152,
951
by
officer
qualified
Fla., 208 F.3d 919, 926
1419
used
Oliver,
line,
defendant.'"
127 F.3d 1416,
App'x 948,
reasonable
'if
bright
F.
methods
is unconstitutional);
City of Riviera Beach,
and Smith v.
Hendershott,
598
407 F.3d
2005)).
[C]ourt cannot consider just any case law
if a .right was clearly established.
46
Only binding
opinions
Circuit
where
from
Court
the
526
Appeals,
is
and
filed,
see
n.10
also
Marsh
the
can
603,
616-17
serve
clearly"),
"would
785
483
as
to
state of
that
the
law on March 1,
his
conduct
was
F.3d
case,
2012
courts
gave
Layne,
in
other
law
544.
is whether
Chief McBride
unconstitutional.
a
the
550 U.S.
therefore,
1014,
that
establish
abrogated on other grounds, Twombly,
salient question for this
268
from
this
(11th Cir.
(explaining
able
state
55.9- (11th Cir.
1237
Ala.,
authority"
be
the
(citing Wilson v,
(1999))
[not]
in
Eleventh
precedent, for
F.3d 1231,
Cnty.,
the
court
F.3d 553,
(en banc)
persuasive
Court,
highest
Butler
2001)
jurisdictions
warning
v.
(11th Cir.
U.S.
The
Supreme
Merricks v. Adkisson,
"consensus ... of
the
States
(citing McClish v. Nugent,
2007));
1032
of
United
action
analysis."
2015)
the
There
fair
is
no
question that at time of the incident at issue the law regarding
supervisory
liability
F.3d at 1360; Belcher,
his burden,
case
or
failure
other
to
manners —
(2)
the
Mr.
was
clearly
established.
30 F.3d at 1397-98.
Gibbons must point to
statement
train
or
of
supervise
his
326
But in order to meet
some
positive
Cottone,
law
officers
factually analogous
demonstrating
in
the
that
challenged
(1) whether or when a paper tag may warrant a stop and
use
of
a
resisting arrest,
Fourth Amendment.
taser without
albeit
See,
warning
"passively"
e.g.,
a
suspect
that
as alleged — violate
Battiste
47
on
v.
Sheriff
of
is
the
Broward
Cnty. , 261
F.
App'x
199,
202-03
the motion to dismiss stage,
(11th Cir.
2008)
(finding,
that the police chief was entitled
to qualified immunity for failure to train because,
past unjustified arrests by his department at
he
did
not
have
enforcement
fair
officers
notice
from
upon probable
cause)
(finding
sheriff's
regarding
the
the
that
he
other
(emphasis
detention
must
added);
to
train
Gray,
provide
students,
in
"faced with
public protests,"
jurisdictions
failure
of
"borrowed"
to
458
clearly
established
Riley v. Newton,
for
purposes
94 F.3d 632,
637
of
only
F.3d at
1309
specific
addition
qualified
(11th Cir.
law
arrest
to
training
general
training regarding use of force during detention and arrest,
not
at
was
immunity);
1996) (finding the
sheriff was entitled to qualified immunity for failure to train
where the plaintiffs failed to cite case law or a constitutional
provision requiring the sheriff to provide training on how to
use Army personnel and rejecting plaintiffs'
City of Canton v. Harris, 489 U.S.
argument that the
378 (.1989),
general standard
of liability in failure to train cases clearly established the
right).
First,
in context of the supervisory claim arising out of
the purportedly unlawful stop, Mr. Gibbons contends that Chief
McBride
officers
traffic
had
fair
notice
that paper tags
stop."
(PL's
that
he
without
Resp.
at
48
must
"train
or
inform
his
more does not authorize
4.)
In
support
of
a
this
argument,
(Ga.
Mr.
App.
Ct.
Appeals
2002)
whether the
precedent
to
car with a
at
clearly
there
a
is
motorist
registered,
or
law
that
driver's
and
that,
either
or
that
justified
12
by
this
train
specific
See Berry v. State,
and
prior
PL's
Sur-
asserts
in
violation
of
situations
in
reasonable
an
vehicle
automobile
or
in
an
is
occupant
law,
order
of
suspicion
articulable
547 S.E.2d 664, 668
(1)
facts
(Ga.
Vansant v. State, 443 S.E.2d 474, 476 (Ga. Ct. App.
check
his
are
Sur-Reply
Chief
a
stop
it
McBride
must
suggesting
Ct. App
1994).
is
automobile
the
to
(See PL's
that
not
stopping an
From Mr. Gibbons' argument,
officers
49
hold
ascertain
Gibbons
longstanding precedent,
his
to
those
Fourth Amendment."
follows
of
registration
3 n.9;
Mr.
and
registration
Prouse, 440 U.S. at 663.
to
(1979),
overruling
was
that
Court
solely to
at
in
driver
at 5.)
required
tag
stop
530
of the principles
648
essence,
the
the
the
unreasonable under the
was
Georgia
seizure for violation of
and
given
S.E.2d 527,
expressly
articulable
detaining
license
U.S.
"except
unlicensed
otherwise subject to
automobile
In
traffic
least
is
the
(PL's Resp.
initial
at
440
drive-out
3-7.)
established
which
authorized,"
50,
Martin's
563
complying with our vehicle
contrary.
Officer
that
Prouse,
the
Doc.
which
v.
not
in
State,
prior applications12
driver was
is
Reply,
(en banc),
in Delaware
"stopping a
laws
cites Bius v.
relied on its
espoused
that
Gibbons
be
the
2001) (en banc);
particular person stopped has
and
(2)
such
the
an
mere
fact
intrusion.
having a
of
(See
committed a violation of
PL's
paper
Resp.
tag
3-4
at
does
the
not
("Taking
law
warrant
as
true
that there is a regular practice of unconstitutionally stopping
cars
solely
based
Defendant McBride
to
train or
on
paper
tags
makes
plausible
.
.
.
that
is liable for a policy or custom of omitting
inform officers
that paper
tags
without
more does
not authorize a traffic stop.").)
Mr.
Gibbons
authority,
further
including one
circuit,
United
3483503,
at
reasonable
States
*4
(N.D.
officer
identifies
case
v.
could
from a
Wright,
Fla.
Nov.
not
a
at
Brown,
6
No.
Mar.
15,
stop
to
n.5
(listing
30,
2006),
that
believed
CR 105-124,
2006)
cases).)
See
2006 WL 717152,
(finding deputy was
investigate
whether
the
persuasive
within this
3:06-CR-447-MCR,
his
lawful under the circumstances presented here.
Reply
of
sister court
No.
have
consensus
*4-5
defendant
indicates
actions
United
justified
WL
a
were
(See PL's Sur-
also
at
2006
& n.8
in
was
States
(S.D.
v.
Ga.
conducting
operating
a
his
vehicle in conformance with *Georgia's vehicle registration laws
because his
rear
homemade cardboard tag,
windshield,
explaining
driver
and
that,
owner
bore
none
although
of
a
car
of
taped to the
the
required
u[a]n officer's
with
a
inside of the
information
xmere hunch'
drive-out
tag
might
and
that a
not
be
operating a car in compliance with the vehicle registration laws
50
does
not
provide
suspecting
officer's
a
particularized
criminal
suspicion
activity,"
about
and
Bius
objective
ure-affirmed
appearance
the
basis
of
a
for
that
drive-out
an
tag,"
or the absence of a tag could authorize an
the tag's visibility,
investigatory stop)(emphasis added)(citations omitted).
Defendants'
Georgia Court
purposes
n.10.
of
of Appeals
qualified
Indeed,
universe
sole response
of
the
cases
precedent.
for
Coffin v.
In
Prouse,
the
however,
litigation,
Mr.
cannot
immunity
rule
2011) (en banc).
is
in
that decisions
clearly establish the
under
this
Brandau,
Marsh,
circuit
qualified
immunity
642
F.3d
Gibbons has
finds
that
268
F.3d
limits
the
purposes
999,
light of the Supreme
Court
issued by the
at
to
1013
Court's
this
law for
at
1032
relevant
binding
(11th Cir.
decision in
stage
of
the
alleged a constitutional violation
that was clearly established at the time it occurred.
Exact
not
factual
required
apparent from
so
identity with a previously decided case
long
as
the
unlawfulness
the pre-existing lav/.
(citation omitted).
of
Coffin,
the
conduct
is
is
642 F.3d at 1013
Distilled from Prouse is the principal that
a random stop of a motorist — in the absence of observations of
traffic ' or
violates
the
equipment
Fourth
violations
Amendment.
or
440
suspicious
U.S.
at
activity
650-51.
—
Clearly
established law required Chief McBride to train his officers on
this principle,
which — if not followed or understood — would
51
likely
result
in
Fourth
Amendment
are general legal rules,
WL
. Murdock v„
2155465,
denied,
22,
at
No.
*9
(See,
Cnty.,
(N.D.
is
entitled
to
Compl.
No.
May
17,
2013),
2013
WL
4501456
Ga.
Accordingly,
e.g. , Am..
Ga.,
1:12-CV-01743-RWS,
2013) .
McBride
Cobb
Although
these
they clearly apply to the facts alleged
in the Amended Complaint.
54.)
violations.
the
Court
qualified
fl-f 50,. 52,
1:12-CV-0.17.43-RWS, . 2013
cannot
immunity
reconsideration
(N.D.
rule
Ga.
that
from Mr.
Aug.
Chief
Gibbons'
§
1983 failure to train or supervise claim arising out of Count I.
Defendants'
motion to dismiss this claim,
Second,
Officer
has
is DENIED.
in context of the supervisory claim arising out of
Martin's
use
of
excessive
"previously noted that
force,
Priester,
208
the
Eleventh
Circuit
'generally no bright line exists for
identifying when force is excessive.'"
(quoting
therefore,
F.3d
at
Jay,
926) .
579 F. App'x at 951
"Therefore,
'unless
a
controlling and materially similar case declares the official's
conduct
unconstitutional,
qualified immunity.'"
Mr. Gibbons,
to
Chief
however,
McBride's
capacity
(Defs.'
specific
law
Officer
violated.
Br.
at
Chief
alleged
Instead,
defendant
is
usually
entitled
to
(quoting Priester, 208 F.3d at 926).
has not presented any argument in response
claim
which
Martin's
Id.
a
that
he
7 n.7,
is
23-24),
McBride's
use
immune
of
in his
nor
inaction
excessive
has
he
with
force
supervisory
cited
respect
might
any
to
have
Mr. Gibbons argues that because "Defendants'
52
qualified
without
was
immunity
any
not
assertion
discussion
clearly
is
supporting
established,
least at this point,
plead
in
their
Plaintiff
the
alternative
position
cannot
that
be
the
faulted,
for offering a general response,
and
law
at
and should
be given an opportunity to respond to specific assertions that
the law was not clear."
states
law
that
"Defendants
Plaintiff
law,
has
except for
It
is
offered
to
responded
demonstrate
21.)
to
He further
any of
clearly
stop,
the
case
established
leaving excessive
(PL's Sur-Reply at 3 n.2 (emphasis added).)
Gibbons has fundamentally confused the burdens at hand.
his
immunity
duty
is
taser use,
establish
to
not
come
forward with
appropriate
with
which he has not done.
485 F.3d 1130,
that
constitutional
violation
and
have not
at 19-21,
law concerning traffic
force not argued."
Mr.
(PL's Resp.
was
internal
therefore,
is
1137
(11th Cir.
the
defendant's
right.
Next,
clearly
argument
respect
to
that
qualified
Officer
Martin's
Skop v. City of Atlanta,
2007)
("First,
conduct
Ga.,
the plaintiff must
violated
a
the plaintiff must
statutory or
show that
the
established.") (emphasis ' added)(citation
quotation
entitled
marks
to
omitted).
qualified
Chief
immunity
McBride,
from
§
1983
liability for failure
to train or supervise related to Counts
IV/V,
motion to dismiss
and Defendants'
is GRANTED.
53
this
claim,
therefore,
2.
Count VI - First Amendment Retaliation Against Officer
Martin
In. Count VI,
Mr.
Gibbons claims Officer Martin violated his
rights under the First Amendment.
(See Am.
Compl.
More
contends
his
specifically,
obstruction,
Mr.
Gibbons
carried out by Officer Martin,
was
Mr.
Gibbons'
Gibbons'
September
Officer Martin and
protected
2010
(2)
speech
internal
Mr.
—
for
and
that adversely
namely,
affairs
Gibbons'
arrest
pretextual
undertaken with improper and retaliatory motives
affected
tH 124-28.)
(D
complaint
Mr*.
against
emergency telephone call to
complain about the stop immediately before and during the course
of the March 2012 arrest.
To
survive
exercising
allege
a
would
under
to
the
establishing
constitutionally
that
motion
rights
facts
(Id. )
protected;"
likely
deter
a
dismiss
First
between
the
speech."
claim
2005) .
for
he
actions
2011);
Bennett v.
Amendment
Mr.
speech
Gibbons
or
must
act
adverse
ordinary
for
was
conduct
firmness
from
"there is a causal connection
and
the
Coll.,
Hendrix,
adverse
retaliation
effect
631 F.3d 1194,
423 F.3d 1247,
Defendants argue that Mr.
First
retaliation
"suffered
of
Castle v. Appalachian Tech.
(11th Cir.
Cir.
retaliatory
"his
person
engaging in such speech," and (3)
on
Amendment,
(1)
(2)
based
1250
on
1197
(11th
Gibbons does not state a
because
he
"failed
to
sufficiently allege that he engaged in protected speech ... or
54
that
there
was
a
causal
arrest
speech
and
his
(Defs.'
Br.
at 21-22.)
connection
and
between
[Officer]
any
Martin's
instance
use
of
of
force."
The Court thus addresses only prongs one
and three of the prima facie case.
The
First
Amendment
political expression,
but
affords
Ohio
(11th Cir.
Elections
Workers
222
of Am.,
(1967)) .
verbal
2013)
Dist.
It
. . .
514
U.S.
12 v.
111.
Const,
334,
and
challenge
freedom
of
a
I;
speech
Mclntyre
(1995);
v.
United
Mine
389 U.S.
217,
significant
directed
individuals
to
522 F. App'x 872,
amend.
346
"protects
The
protection
State Bar Ass'n,
likewise
criticism
officers.
Abella v. Simon,
(citing U.S.
Comm'n,
broadest
also to the general rights of
and to petition for redress.
874
the
amount
at
of
police
verbally
to
oppose
or challenge police action without thereby risking arrest is one
of the principal characteristics by which we distinguish a free
nation from a police state."
Skop,
Houston v.
461-63,
Gibbons
Hill,
482 U.S.
alleges
he
451,
485 F.3d at 1139
(1987)).
At bottom,
engaged in protected activity by
police misconduct.
(See Am.
Compl.
t1
38,
(quoting
Mr.
reporting
124-26;
see also
Pi.'s Resp. at 11-13.)
Defendants
factual
respond
that
Mr.
Gibbons
"never
specifics about the nature of the
complaint."
especially
(Defs.' Br. at 22.)
given
the
[internal
any
affairs]
This argument is unavailing,
very complaint
55
alleges
at
issue
is
likely
in
Defendants'
possession.
Moreover,
Defendants
challenge to the classification of Mr.
Gibbons'
call
failed
as
"protected
speech"
their reply brief.
Thus,
when
the
alleged sufficient facts as
motion to dismiss.
plaintiff
facts
any
emergency phone
to
address
Court finds that Mr.
it
in
Gibbons has
to the first prong to withstand the
See Abella,
alleged
they
abandoned
522 F. App'x at 874
sufficient
to
establish
(finding the
three
police
officers unlawfully retaliated after he filed grievances against
each of them and engaged in other protected activity);
e.g. , Moral
(D.
Kan.
v.
Hagen,
July
No.
14,
10-2595-KHV,
2011)
plaintiff's allegations
that
2011
(recognizing
WL
as
see also,
2746833,
at
sufficient
*5
the
by obtaining an arrest warrant
in
retaliation for the filing of a complaint against an 'officer of
the
Kansas
division,
internal
affairs
defendant violated her First Amendment rights
to free
speech
and
Mateo,
No.
19,
2009)
Bureau
to
of
Investigation
petition
the
with
the
government);
07-05596
SI,
2009
WL
735149,
(finding
the
plaintiff
Doe
at
stated
a
v.
*6
Cnty.
(N.D.
of
Cal.
claim' against
San
Mar.
two
police officers when she alleged they retaliated against her for
filing a police report about police misconduct by threatening to
arrest her and by stalking,
intimidating,
and threatening her) ;
McCann v. Winslow Twp., 2007 WL 4556964 *5 n. 5 (D'.N. J. :Dec. 20,
2007)
("[T]he
municipal
formal
police
mechanism
department
of
filing
is within the
56
a 'grievance with
realm of
a
activity
clothed in constitutional protection from retaliation.")
Foraker
v.
abrogated
Chaffinch,
on
other
Guarnieri,
131 S.
735149,
*5-6
at
501
F.3d
grounds
Ct.
231,
by
2488
Borough
(20li) ).
(noting the
236
absence
(3d
of
(citing
Cir.
2007),
Duryea,
'Pa.
v.
But
of
see' Doe,
2009 WL
the
authority
for
the
proposition that a statement made to police during an arrest or
a
temporary detention qualifies
grievances"
Foraker,
within
501
protected
the
F.3d
from
mechanism [s]
at
meaning
236,
as
a
of
for
retaliation
such
as
the
the
is
the
"petition
First
for
Amendment
proposition
of
of
(citing
that
activity
by
"formal
characterized
filing
redress
a
lawsuit
or
grievance"(emphasis added))).
To
establish
that his
a
protected
causal
connection,
conduct was
a
713
F.3d 1059,
532 F.3d 1270, 1278
1063
Gibbons
"motivating
Officer Martin's alleged misconduct.
Corr.,
Mr.
Smith v.
(11th Cir.
(11th Cir. 2008).
2013);
must
factor"
allege
behind
Florida Dep't of
Smith v.
Mosley,
"Plaintiff must identify
a sequence of events from which a retaliatory motive can be
inferred,
notwithstanding
defendant may harbor."
Supp.
3d 1327,
1344
other
non-retaliatory
Eisenberg v.
(S.D.
Fla.
internal quotation marks omitted).
motives
City of Miami Beach,
Mar.
3,
2014)
the
1 F.
(citation and
To resolve the subjective
motivation issue, courts' rely on the burden-shifting formula set
forth in Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
57
429
U.S.
274
(1977).
Mosley,
532
F.3d
at
1278.
Under
the
Mt.
Healthy formula,
[o] nee
the
plaintiff
has . met
his
burden
of
establishing
that
his
protected
conduct
was
a
motivating factor behind any harm,
the burden of
production shifts to the defendant.
If the defendant
can
show
that
he
would
have
taken
the
the absence of the protected activity,
to prevail ... on summary judgment.
Mosley,
532
F.3d 378,
In
also
F.3d
399
conjunction
of
free
2011)
dismissing
(quoting
he
action
the
temporal
speech
is entitled
Thaddeus-X
v.
Blatter,
burden-shifting
proximity
formula,
between
and the adverse
a
inmate's
175
effect
the
district
court
First Amendment
erred
retaliation
courts
plaintiff's
in gauging
See Bumpus v. Watts, 44 8 F. App'x 3,
(finding
in
1999)).
with
the
causal connection.
Cir.
1278
(6th Cir.
consider
exercise
at
same
by
a
7 (11th
prematurely
claim
because
inmate sufficiently alleged causation "given the short amount of
time between his appeal of the disciplinary
alleged retaliatory actions"); Akins v.
F.3d 1293,
1305
(11th Cir.
2005)
decision
Fulton Cnty.,
(finding the
"close
and the
Ga.,
420
temporal
proximity" between a special meeting at which former employees
in county's purchasing department complained to the commissioner
of perceived irregularities in the county's bidding process and
adverse employment actions taken against the same employees by
their supervisor was
sufficient to permit reasonable jury to
conclude that'incidents were causally connected); Lozman y. City
58
of
Riviera
Aug.
19,
Beach,
No.
2014)
08-CIV-80134,
(finding
causation because
there
adequate
was
"a
2014
WL
4101514
circumstantial
very close
(S.D.
Fla.
evidence
temporal
of
connection"
between the timing of the plaintiff's expressive speech — public
criticism
of
the
integrity
of
various
municipal
officials
and
formal lawsuit — and the city's exertion of an extended string
of
legal
06-60750,
pressures
2008
WL
against
the
plaintiff);
868253,
at
*2
(S.D.
Smith v.
Fla.
Bell,
Mar.
31,
No.
2008)
(stating "there can be no assumption that eighteen months after
a
police
officer
is
called
names
by
an
arrestee,
that
the
officer's alleged false testimony at a trial where a defendant
is partially acquitted meets the casual connection requirement"
and concluding "[t]here must be a greater temporal proximity or
other
evidence
of
a
causal
connection
to
link
the
protected
conduct occurring [eighteen] months prior to the adverse action,
as would be the case is most retaliation type analyses"
Davis
v.
Coca-Cola Bottling Co.,
516 F.3d 955,
2008) and Brungart v. Bellsouth Telecomms.,
799
(11th Cir.
the
motion
to
l:13-CV-0524-RWS,
2013),
(11th Cir.
Inc., 231 F.3d 791,
2000))).
The burden-shifting analysis,
at
978
(citing
dismiss
1767710- (N.D. Ga.
phase.
2013 WL 5493380,
reconsideration
denied,
May 2,
however,
2014);
59
Johnson
at *4 n.3
No.
is not appropriate
v.
Conway,
No.
(N.D. Ga. Sept. 30,
1:13-CV-0524-RWS,
2014
see also generally Mosley,
WL
532
F.3d 1270
(decided on summary judgment); Lozman,
1392
(same).
have
taken
activity
XXA
the
is
determination
same
premature
discovery."
when
Eisenberg,
2013
WL
5493380,
only
whether
protected
action
at
Mr.
*4
n.3) .
was
Officer Martin has
in
to
the
a
absence
the
whether
of
parties
2014 WL 821282,
Gibbons
conduct
as
has
a
As
a
met
at
his
taken
same
would
the
protected
conducted
(citing Conway,
the
factor
3d
not
1344
burden
the
defendant
have
result,
motivating
would have
39 F. Supp.
Court
in
addresses
alleging
and
not
actions
his
whether
absent
Mr.
Gibbons' protected conduct.
It
alleges
is
clear
his
from
2012
the
arrest
Amended
Complaint
by Officer Martin
that
was
Mr.
the
Gibbons
result
of
filing a complaint against Officer Martin in September 2010 and
raising alarm about Officer Martin's subsequent stop in March
2012.13
(Am.
Compl.
exists
between
Mr.
March 2012 arrest,
H 124.)
Gibbons'
Although almost no temporal gap
emergency
telephone
call
Gibbons'
internal affairs
complaint —
filed in September 2010 - and the March 2012 arrest.
at 22-23).
his
as Defendants observe, a substantial temporal
gap exists between Mr.
Br.
and
Facially,
the latter exercise of Mr.
(Defs.'
Gibbons'
13
Mr. Gibbons makes no allegation that Officer Martin recognize.d him or
his vehicle before initiating the purportedly unlawful traffic stop.
(See
Am. Compl. ^| 67 ("When Martin could see Gibbons through the window, Martin
knew that it was Gibbons,
or within a few seconds of being at the window,
before the tasering, when Martin heard Gibbons on the phone complaining about
how GRU police have done this to him before, Martin knew it was Gibbons from
the 2010 stop[.]") .)
60
First
Amendment
rights
is
exceedingly
adverse action taken by Officer Martin.
at
1254
include
("The
alleged
prolonged
a
and
local police officers.
plaintiffs,
the
defendants
retaliatory
followed,
organized
Synagogue,
2d 1296,
1316
(S.D.
is
replete
pulled
v.
with
over,
Fla.
City of
2006)
harassment in the form of
issuance of
violations
(emphasis added)
The
acts
from
the
423
F.3d
of
here
Bennett,
complained
of
Taken in the light most
record
Inc.
Cf.
campaign
otherwise harassed the plaintiffs.")
Cmty.
attenuated
harassment
favorable to the
instances
where
the
intimidated,
cited,
or
(emphasis added);
Hollywood,
by
Fla.,
Hollywood
43 0 F.
Supp.
("Numerous courts have found that
constant monitoring,
investigating or
can contravene'First Amendment rights.")
(citations omitted).
Eleventh
other •retaliation
Circuit
Court -of
contexts,
Appekls
however,
that
has
recognized
wif there
[is]
in
a
significant time gap between the protected1 expression and the
adverse action, the plaintiff must offer additional'evidence to
demonstrate a causal connection,
such as a pattern of antagonism
or that the adverse action was the
retaliate."
Jones v.
955' '(11th Cir. 2014)
"first opportunity'
Suburban Propane,
(emphasis added)
Data Sys. ,• Inc. , 109 F.3d 173,
Inc.,
. . .to
577 F. App'x 951,
(citing Kachmar v;' :SunGard
177 (3d Cir.
1397)
and quoting
Dale v. Wynne, 497 F. Supp. 2d 1337, 1346 (M.D. Ala. 2007)); see
also Bell,-
2008
WL 868253,
at *2
61
("There must be a -greater
temporal proximity or other, evidence
of a
link the protected conduct occurring
[eighteen] .months prior to
the, adverse
type
action,
would
analyses.") (emphasis
theory informs Mr.
Gibbons
the
as
for
2010
stop
investigation,
and
that
is
he
Martin
had
filed
connection to
most
his
adverse
(Am.
case
Compl.
is
recognized
an
from
actions
him
internal
from
affairs
[POS]
Turner
Indeed, Mr.
Gibbons
retaliation
in
"because employers have
employment
..This
"[b]efore arresting
U 128.)
distinct
retaliation
omitted) r
because he had been interviewed by
employment context
take
case
allegation that
[Officer]
knew
as a result of it."
argues
the
added) (citations
Gibbons'
obstruction,
be
causal
the
the opportunity
against
an
practically any work day . . . , but [Officer]
employee
to
on
Martin did not
have an opportunity to retaliate again[st] Gibbons until he came
into contact with him during the 2012 stop."14
(Pl.'s Resp. at
13.)
The Court finds,
whole
are
Court
DENIES
14
at this stage,
sufficient
to
Defendants'
The Court notes,
however,
the allegations taken as a
establish
causation.
motion
to
as
this
Therefore,
count.
The
the
Court
that Jones is an unpublished opinion, which
is not controlling authority and is persuasive only insofar as its legal
analysis warrants.
Bonilla v. Baker Concrete Const., Inc., 487 F.3d 1340,
1345 n.7 (11th Cir. 2007).
Moreover, to the extent the Court can discern,
the Eleventh Circuit has not recognized the "first opportunity", theory in the
§ 1983 context, and Jones has been cited in only one decision: a Florida
district court's footnote about whether a plaintiff is required to establish
but-for causation at the prima facie stage of a retaliation suit brought
pursuant to 42 U.S.C. § 1981 and the Florida Civil Rights Act, Lewis v. City
of St.
Fla.
Petersburg,
June 9,
No.
8:14-CV-254-7-T-27TGW,
2015).
62
2015 WL 3618525,
at *4
(M.D.
will
not
address
whether
Martin from liability as
qualified
to
immunity
this claim as
protects
Officer
he did not raise the
defense in-brief.
Count VII - Malicious Prosecution Against Chief
3.
McBride,
POS Turner,
Although not
Count VII,
§ 1983
Mr.
claim
and Jackson,
conspiracy
If 131,
Turner and Chief McBride
maliciously
138-141,
conspiracy
arguendo
that
malicious
the
or
sufficiently
and
146
prosecute
PL's
of
VII
(See
Sur-Reply
at
conspiracy
—
prosecution
Claims
Officers
actions
and
itself
VIII
—
in
standalone
Martin
Am.
(2)
Compl.
claim as against
and individuals'
allegations
wrongful
(1)
individually and
claim.
(framing the
plan");
plead,
allegations
prosecution against
or more of the Defendants"
the
from the
appears to assert both a
for malicious
to
132,
readily decipherable
Gibbons
POS
and Officers Martin and Jackson
Mt]wo
"as part of
13
("Assuming
as
opposed
have
not
asserting
to
been
malicious
prosecution and wrongful prosecution have still been plausibly
plead against each of
[the]
Defendants.").)
The
Court will
address the conspiracy claim separately in Part III.D.4, infra.
The
as
a
Eleventh
violation
Circuit
of
the
has
identified
Fourth
malicious
Amendment
constitutional tort cognizable under § 1983.
323 F.3d 872, 881 & n.14
"To
establish
a
§
1983
(11th Cir. 2003)
malicious
63
and
prosecution
a
viable
Wood v."
Kesler,
(citations omitted).
prosecution
claim,
the
plaintiff must prove two things:
law tort
of
malicious
Fourth Amendment
Grider,
right
618
Kingsland
2004)).
F.3d
v.
at
City
of
(1)
and
prosecution;
to
be
free
1256
the elements of the common
(2)
382
"As to the first prong,
in
F.3d
(2)
instituted
or
continued
by
in the plaintiff accused's favor; and
accused.'"
Id.
1234
his
seizures."
(citing
(11th
Cir.
the constituent elements of the
[are] : x(1)
the
present
with malice and without probable cause;
plaintiff
of
original)
1220,
common law tort of malicious prosecution
prosecution
violation
from unreasonable
(emphasis
Miami,
a
(3)
(4)
(quoting
a criminal
defendant;
that terminated
caused damage to the
Wood,
323
F.3d at
882).
Under Georgia law, malice may be inferred from "a total lack of
probable cause."
O.C.G.A.
§ 51-7-44;
see also K-Mart Corp. v.
Coker,
261 410 S.E.2d 425, 429
prong,
it is well established that ah arrest without probable
cause
is
an
Amendment."
unreasonable
(Ga.
seizure
1991).
that
"As to the second
violates
the
Fourth
Grider, 618 F.3d at 1256 (citations omitted).
Tracking the required elements of the common law tort of
malicious prosecution,
Mr.
Gibbons alleges that Officer Martin
arrested him
for
asserts
the March 2012
that
obstruction.
(Am.
traffic
Compl.
stop,
UK 82.)
Next
he
based solely on Mr.
Gibbon's paper dealer tag, was not supported by probable cause.
(See id.
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