Stefani v. City of Grovetown et al
Filing
96
ORDER denying in part and granting in part 58 Motion for Summary Judgment; denying as moot 60 Motion to Limit the Expert Testimony of J. Douglas Parker; granting in part 62 Motion for Partial Summary Judgment. This case will proceed to trial on damages at a time and manner directed by the Court. Signed by Chief Judge J. Randal Hall on 08/24/2018. (thb)
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
CHAD STEFANI,
*
*
Plaintiff,
*
*
V.
*
CV 115-164
5
CITY OF GROVETOWN, a municipality
of the State of Georgia; GARY
JONES, individually and in his
official capacity; and JONES
NALLEY, individually and in his
official capacity,
*
*
*
*
*
*
*
Defendants.
*
ORDER
This matter came before the Court on a motion to dismiss
in September 2016.
In accordance with the legal standards
applicable to motions to dismiss, this Court had to accept all
factual allegations of the Amended Complaint (doc. 20) as
true.
Now, following discovery, the parties come back before
the Court on cross-motions for summary judgment with a more
developed and extensive factual background.
also
filed
a
motion
to
limit
the
Defendants have
expert
Plaintiff's witness, J. Douglas Parker.
testimony
of
Having thoroughly
read and considered the record and the parties' briefs, the
Court resolves the matter as follows.
I. BACKGROUND
A.
Overview of Remaining Claims
This case arises out of Plaintiff Chad Stefani's arrest
by Defendant City of Grovetown's Department of Public Safety
("GDPS") on February 17, 2015. After a citizen's complaint in
the early afternoon and a brief investigation by the GDPS, the
Columbia County magistrate judge issued arrest warrants for
Plaintiff for attempted child molestation.
himself in to the GDPS that evening.
Plaintiff turned
He was arrested and
remained in custody until his release after a preliminary
hearing was held on March 31, 2015.
On October 13, 2015, Plaintiff filed the instant case
alleging
constitutional
violations
for
unlawful detention, and unlawful search.
were brought under 42 U.S.C. § 1983.
unlawful
arrest,
These federal claims
Plaintiff also alleged
state law claims of negligence, false/malicious arrest, false
imprisonment, and malicious prosecution.
On September 2, 2016, this Court granted in part and
denied in part Defendants' motion to dismiss.
Thereafter,
Plaintiff's § 1983 claims against Defendant City of Grovetown,
Defendant Gary Jones, the Chief of Police, and Defendant Jones
Nalley, a GDPS investigator, remained as well as the state-law
claims for malicious prosecution and negligence against the
City of Grovetown.
B.
Factual Background^
At around 12:49 p.m. on February 11, 2015, Rachel Lucas
called the GDPS and spoke with the dispatcher.
to St. of Material Facts, Doc. 88, H 1.)
(Pl.'s Resp.
Lucas reported that
a man had just come to her house in a blue, four-door Dodge
Ram pickup truck and asked if she had any daughters.^ (Nalley
Dep. Part I (Feb. 2, 2017), Doc. 72-1, at 60-62.)
The man
stated that he "was thinking about having a kid" and wanted to
spend "some alone time" with Lucas's daughters.
(Id.)
The
dispatcher instructed Lucas to come to the police department.
(I^)
When Lucas arrived at the police station, she met with
Sergeant Christopher Powell, a road patrol officer.
Lucas
told Sergeant Powell what happened and provided a description
of the truck and of the man.
Doc. 64-7, at 61.)
(Lucas Dep. at 47; Powell Dep.,
Lucas told Sergeant Powell that the man
had offered her $200 to spend time alone with her daughters.
^ On a motion for summary judgment, the Court must view
the facts in the light most favorable to the non-moving party,
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.. 475 U.S.
574, 587 (1986), and must draw "all justifiable inferences in
his favor."
United States v. Four Parcels of Real Prop, in
Greene and Tuscaloosa Cntvs.. 941 F.2d 1428, 1437 (11*^^ Cir.
1991) (en banc) (internal punctuation and citations omitted).
^
Lucas actually had three daughters and a son, all
under the age of 10, whom she was loading into her car at the
time of the encounter. (Lucas Dep., Doc. 69-3, at 10-11, 4344.)
{Powell Dep. at 62.)
Lucas provided a written statement at that time:
I was putting my children in the car and a
white male in a blue dodge 4 door pick-up pulled up
on the side of my house & got out and was gona
(sic) knock on my door & I said can I help you, he
asked if I wanted to make some extra side money.
He said he was thinking about having kids and
wanted to know if I had daughters that he can spend
time with.
I have.
I say no sir and he asked how many kids
I told him it was none of his concern, and
that he was willing to pay $200.00 an hour to spend
alone time with them. His truck had no tag.
(Doc. 64-4; Lucas Dep. at 55.)
Sergeant Powell then wrote the
names of the daughters and their ages on the back of the
statement, along with a description of the man.
Powell Dep. at 64-65.)
(Doc. 64-4;
Sergeant Powell reported the incident
to his superior. Captain Scott Wheatley.
Sergeant Powell also
called the District Attorney's office to inquire about whether
a crime had been committed.
(Powell Dep. at 74-76.)
The
District Attorney's office informed him that the suspect could
be
charged
with
"criminal
attempt
to
commit
child
molestation." (Powell's Incident Report, Doc. 64-18; see also
Bray Dep., Doc. 67-2, at
17-19 ("I never told them to go take
out a warrant and arrest a person for that.
I just gave them
a potential charge. . . . I'm not the one that has to worry
about probable cause to arrest someone.
I don't have to worry
about taking out warrants, [the officers] do.").)
Shortly after Lucas filed her complaint. Defendant Gary
Jones, the Chief of Police, issued a statement on the GDPS's
Facebook
page.
The
statement
began:
"PARENT
ALERT! 1 1 1!!!!! i I !," followed by a description of the suspect,
the truck, and the incident.
The statement asks anyone that
sees the vehicle or the suspect to call the GDPS.
Resp. to St. of Material Facts, H 9.)
(Pl.'s
In response thereto, a
male tipster called the GDPS at 2:10 p.m. and spoke with
Sergeant Powell.
The male tipster advised the GDPS to look up
Chad Stefani (the plaintiff herein) because he drives a blue
four-door Dodge Ram truck and had previously been in trouble
for "flashing women around Columbia County." (Id. f 10; Powell
Dep. at 87-89.)
At the male tipster's behest. Sergeant Powell googled
"Chad Stefani Augusta GA," which yielded a newspaper article
with his picture.
(Powell Dep. at 102.)
Sergeant Powell
immediately called Lucas and instructed her to perform the
same google search. (Id. at 97-98.) Sergeant Powell infoinned
Lucas that he had received an anonymous tip that Chad Stefani
drove the same type of vehicle and he wanted to know if Lucas
recognized
children.
him
as
the
(Id. at 100.)
hung up the phone.
(Id.)
Sergeant Powell back
man
that
approached
her
and
her
Lucas said that she would, and they
A few moments later, Lucas called
and stated that the picture on the
internet "looked just like him."
She explained: "I don't want
to like be like a hundred percent, yeah, bam, that's him, but
he looks identical.
The only thing different was this man had
a hat on so I didn't see if he had hair really good or if he
was bald."
(Id. at 104.)
Powell asked again if the picture
''looked exactly like him" and Lucas responded "yes."
(Id.)
After speaking with Lucas, Sergeant Powell called Captain
Wheatley to inform him that she had identified Plaintiff as
the suspect.
Captain Wheatley then called Columbia County
Sheriff's Office and asked that the office send to the GDPS
any information it had on Plaintiff to include a mug shot.
(Prelim. Hrg. Tr. of Michelle Carter, Doc. 75-1, at 28.)
Captain Wheatley also requested that a photographic line-up be
prepared for the GDPS's use.
(Id. at 28-29.)
In the meantime. Defendant Jones also called a deputy
with the Columbia County Sheriff's Office to inquire about an
incident at the local Wal-Mart.
The two men determined that
the incidents were unrelated because the suspect descriptions
were different. (Pl.'s Resp. to St. of Material Facts, H 17.)
In a subsequent phone call, wherein Defendant Jones mentioned
that the GDPS has identified Plaintiff as a suspect, the
deputy
pointed
out
to
Defendant
Jones
that
the
GDPS's
description as a "strawberry blonde with goatee" did not match
the Chad Stefani he knew, who was "bald-headed with a dark
beard."
{Prelim.
Hrg. Tr. of
Calvin Morris at 32-33.)
Nevertheless, Defendant Jones asked the deputy to send the
photographic line-up over to make it official.
(Id. at 35.)
At approximately 3:30 p.m.. Captain Wheatley assigned the
case to Defendant Nalley, who had just started his shift.
(Nalley Dep. Part I at 77.)
Captain Wheatley told Defendant
Nalley about Lucas's complaint and the D.A. Office's suggested
charge.
(Id. at 77-78, Nalley Dep. Part II (Mar. 2, 2017),
Doc. 69-1, at 158-59.)
Also, Captain Wheatley told Defendant
Nalley that Lucas said she would be able to recognize the
suspect if she saw him again and that the suspect had been
identified.
159.)
(Nalley Dep. Part I at 78; Nalley Dep. Part II at
Captain
Wheatley
told
Defendant
photographic lineup was being prepared.
Nalley
that
a
(Nalley Dep. Part I
at 93-94; Nalley Dep. Part II at 137, 159.)
At 4:30 p.m., Lucas came to the GDPS, at which time
Defendant
Nalley
and
photographic line-up.
Captain
Wheatley
showed
her
the
(Nalley Dep. Part I at 94-95.)
The
photograph of Plaintiff in the line-up was different than the
one Lucas had previously seen on the internet.
to St. of Material Facts,
H 26.)
(Pl.'s Resp.
Upon being shown the
photographic line-up, Lucas ''immediately" and "adamant[ly]"
identified Plaintiff as the suspect.
(Nalley Dep. Part I at
95; Nalley Dep. Part II, at 250; Lucas Dep. at 119, 141.)
After
obtaining
Lucas's
positive
identification,
Defendant Nalley prepared three warrants for Plaintiff and
went to the county magistrate judge.
The warrants charged the
crime of Criminal Attempt (Child Molestation), one warrant for
each of Lucas's daughters.
& R.)
(Am. Compl., Doc. 20, Exs.
P, Q
The warrants described the offense as follows: "[The]
accused attempted to solicit[] said victim at the rate of
$200.00 an hour, for the purpose of sexual gratification and
to in pregnant (sic)."
(Id.)
Defendant Nalley informed
Magistrate Judge Connie Washington of: Lucas's allegation that
the suspect had tried to pay money in exchange for spending
time with her young daughters; Lucas's description of the
suspect
and
the
vehicle;
and
Lucas's
Plaintiff in a photographic lineup.
identification
of
(Nalley Dep. Part I at
94-98; Washington Dep., Doc. 69-2, at 28.)
The magistrate
judge issued arrest warrants for Plaintiff at 4:50 p.m. on
February 17, 2015.
(Pl.'s Resp. to St. of Material Facts, H
39.)
Defendant Jones posted an update on the GDPS Facebook
page, indicating that they had arrest warrants for Plaintiff
and that he should turn himself in.
(Id.
H 40.)
evening. Plaintiff learned of the post from a friend.
Dep. Part I (Feb. 1, 2017), Doc. 67-4, at 102.)
That
(Pl.'s
Plaintiff,
along with his fiancee, Ms. Britland Gove, called an attorney.
(Id. at 103.)
While they were on the phone with the attorney,
Defendant Jones called Ms. Gove and left a voicemail message.
(Britland Stefani Dep., Doc. 68-2, at 50; Pi.'s Dep. Part II
(Mar.
22, 2017), Doc.
70-1,
at 85-86.)
Ms.
Gove called
Defendant Jones back to let him know that she' was bringing
Plaintiff to the GDPS.
her upon her arrival.
Defendant Jones asked to speak with
{Britland Stefani Dep. at 51.)
When
Ms. Gove dropped Plaintiff off at the GDPS around 9:50 p.m.,
she was taken to meet with Captain Wheatley and Defendant
Jones in Defendant Jones's office.
(Id. at 56.)
During their
conversation, Ms. Gove told them that Plaintiff's truck had
been parked under video surveillance at his workplace all day
and that Plaintiff had been driving a white company truck.
(Id.
at 57-58,
62-63.)
At
this
point,
Ms.
Gove
called
Plaintiff's brother and boss, Mr. Brian Stefani, so that he
could verify this information for Defendant Jones.
58;
Brian
Stefani
Dep.,
Doc.
68-1,
at
58-60
(Id. at
("I
told
[Defendant Jones] we have [video surveillance] at the shop and
I'd help him any way that I could and [Plaintiff] did not do
this, he had the wrong guy.").)
Ms. Gove also pointed out
that Plaintiff has alopecia and is bald; therefore, he did not
match the description posted on the Facebook page.
Stefani Dep. at 60.)
remained
confident
(Britland
Ms. Gove testified that Defendant Jones
that
he
had
the
right
person and
was
dismissive of the information she had provided.
(Id. at 64,
66.)
At
approximately
10:46
p.m.,
Defendant
Nalley
and
Defendant Jones met with Plaintiff in an interview room at the
GDPS.
Before invoking his Fifth Amendment rights. Plaintiff
told them: ''I didn't do this."
(Pl.'s Dep. Part I at 104.)
He also told them that his truck was parked and he had not
driven it.
arrest.
The
(Id. at 105.)
Plaintiff was then placed under
(Pl.'s Resp. to St. of Material Facts, H 52.)
morning
after
Plaintiff's
late
evening
arrest,
Defendant Nalley went to Plaintiff's workplace, the electrical
business owned by his brother, Brian Stefani.
Dep. at 11.)
(Brain Stefani
Defendant Nalley asked Brian Stefani if he could
look at Plaintiff's truck and the video surveillance.
(Id. at
68-69.) Brian Stefani refused until Defendant Nalley obtained
a search warrant.
At
(Id. at 69.)
approximately
12:35
p.m.
on
February
18,
2015,
Defendant Nalley obtained a search warrant for the truck and
the video at Plaintiff's
Stefani.
workplace as requested by Brian
(Nalley Dep. Part II at 217.) He also obtained a
search warrant for clothing items matching Lucas's initial
description of the suspect from Ms. Gove's residence, which
she shared with Plaintiff.
(Id. at 217-18; see Am. Compl.,
Ex. S.)
10
When Defendant Nalley returned to Plaintiff's workplace,
he viewed the video surveillance of the truck, which showed
that Plaintiff's truck was not moved during the relevant time
period. (Nalley Dep. Part II at 220-21; Brian Stefani Dep. at
89-90, 92-93; Nalley Dep., Ex. 5 (Doc. 74-1), Investigative
Notes-Entry for 12:50 p.m. on 2/18/15.) On February 24, 2015,
Defendant Nalley searched Ms. Gove's home and only seized a
flannel shirt. (Nalley Dep., Ex. 5, Investigative Notes-Entry
for 2/24/15.)
Finally, the record evidence further shows
that in the days following Plaintiff's arrest, Ms. Gove found
a receipt for Plaintiff's purchase of lunch at Taco Bell at
1:07 p.m. on the day of incident.
69.)
(Britland Stefani Dep. at
She turned it over to Plaintiff's defense counsel.
(Id.) At some point in early March, the investigator hired to
help in the defense of Plaintiff obtained video footage from
Taco Bell, which shows Plaintiff getting lunch at the Taco
Bell in the white company truck shortly after the incident had
occurred.
(Christine Dep., Doc. 67-1, at 58-59.)
Ultimately, a specially set preliminary hearing was held
on March 31, 2015, before a magistrate judge from another
county.
Bryant
At the conclusion of the hearing. Magistrate Judge
Swan
dismissed
the
"there
[we]re
circumstances,
furtherance
molestation."
of
the
charges
commission
no
of
because
substantial
the
(Prelim. Hrg. Tr. at 51.)
11
crime
under
the
steps
of
in
child
II.
SUMMARY JUDGMENT STANDARD
The Court should grant summary judgment only if "there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law."
Fed. R. Civ. P.
56(a). The purpose of the summary judgment rule is to dispose
of unsupported claims or defenses which, as a matter of law,
raise no genuine issues of material fact suitable for trial.
Celotex Corp. v. Catrett. 477 U.S. 317, 322-23 (1986).
In this case, both Plaintiff and Defendants have filed
motions for summary judgment. "The standard of review for
cross-motions for summary judgment does not differ from the
standard applied when only one party files a motion, but
simply requires a determination of whether either of the
parties deserves judgment as a matter of law on the facts that
are not disputed."
Southern Pilot Ins. Co. v. CECS. Inc.. 2
F. Supp. 3d 1240, 1242-43 (N.D. Ga. 2014) (citing Am. Bankers
Ins. Group v. United States. 408 F.3d 1328, 1331 (ll'^'^ Cir.
2005)).
In considering a motion for summary judgment, all facts
and reasonable inferences are to be construed in favor of the
nonmoving party.
Hoaan v. Allstate Ins. Co., 361 F.3d 621,
625 (11*^^ Cir. 2004).
Moreover,
[t]he mere existence of some factual dispute will
not defeat summary judgment unless the factual
dispute is material to an issue affecting the
outcome
of
the
case.
The
12
relevant
rules
of
substantive
law
disputed fact.
dictate
the
materiality
of
a
A genuine issue of material fact
does not exist unless there is sufficient evidence
favoring the nonmoving party for a reasonable jury
to return a verdict in its favor.
Chapman v. AX Transp., 229 F.3d 1012, 1023 {11'^ Cir. 2000) {en
banc) (quoted source omitted) (emphasis supplied).
The party
opposing the summary judgment motion, however, "may not rest
upon the mere allegations or denials in its pleadings.
Rather, its responses . . . must set forth specific facts
showing that there is a genuine issue to be tried."
Walker v.
Darbv. 911 F.2d 1573, 1576-77 (ll'^^ Cir. 1990).
The
Clerk
gave
the
nonmoving parties notice of
the
summary judgment motion and the summary judgment rules, of the
right to file affidavits or other materials in opposition, and
of
the
consequences
of
default.
(Docs.
61
and
66.)
Therefore, the notice requirements of Griffith v. Wainwright.
772 F.2d 822, 825 (11*^^ Cir. 1985) (per curiam), are satisfied.
The time for filing materials in opposition has expired, and
the motions are ripe for consideration.
III. DISCUSSION
Plaintiff asserts federal claims pursuant to 42 U.S.C. §
1983.
Section 1983 creates a federal remedy for deprivations
of federal rights.
Wideman v. Shallowford Community Hosp..
Inc.. 826 F.2d 1030, 1032 (11^^ Cir. 1987).
13
An actionable §
1983
claim
requires
proof
of
a
deprivation
of
rights,
privileges or immunities secured by the Constitution and laws
of the United States and that the deprivation was by a person
or persons acting under color of law.^
Plaintiff
constitutional
alleges
rights
that
by
Id.
Defendants
subjecting
prosecution and an unlawful search.
him
violated
to
a
his
malicious
Plaintiff asserts his
claims against Defendant City of Grovetown and its employees,
Defendants Jones and Nalley, in their official and individual
capacities.
Nalley
in
Plaintiff's claims against Defendants Jones and
their
official
capacities
are
the
functional
equivalent of claims against the entity for which they are
employed - the City of Grovetown.
See Kentuckv v. Graham. 473
U.S. 159, 166 {1984) ("[A]n official capacity suit is, in all
respects other than name, to be treated as a suit against the
entity."); Busby v. City of Orlando. 931 F.2d 764, 776 (11'^'^
Cir. 1991).
Accordingly, Plaintiff's claims exist against
Defendant City of Grovetown and Defendants Jones and Nalley in
their individual capacities.
Plaintiff
also
has
state
law
claims
for
malicious
prosecution and negligence against the City of Grovetown.
The
state law claims will be addressed last.
^
It is undisputed that Defendants acted under color of
law in this case.
14
A.
Malicious Prosecution
Because Plaintiff was arrested pursuant to a warrant, his
claim is properly construed as a malicious prosecution claim.
Carter v. Gore. 557 F. App'x 904, 906 {ll'^^ Cir. 2014). A §
1983 claim for malicious prosecution arises under the Fourth
Amendment.
1256
Grider v. Citv of Auburn. Ala., 618 F.3d 1240,
(11''^
Cir.
2010).
To
establish
a
§
1983
malicious
prosecution claim, the plaintiff must prove two things: (1)
the elements of the common law tort of malicious prosecution;
and (2) a violation of his Fourth Amendment right to be free
from unreasonable seizures.
Id. (citing Kinasland v. City of
Miami, 382 F.3d 1220, 1234 (ll'"'' Cir. 2004)). "As to the first
prong, the constituent elements of the common law tort of
malicious
prosecution
are:
Ml)
a
criminal
prosecution
instituted or continued by the present defendant; (2) with
malice and without probable cause; (3) that terminated in the
plaintiff accused's favor; and (4)
plaintiff accused.'"
to the
Id. (quoting Wood v. Kesler. 323 F.3d
872, 881 (11"^ Cir. 2003)).
established
caused damage
As to the second prong, it is well
that an arrest
without
probable
cause
is an
unreasonable seizure that violates the Fourth Amendment. Id.
(citing Brown v. Citv of Huntsville. Ala.. 608 F.3d 724, 734
(11th
2010)).
Consequently, the existence of probable
cause negates both prongs and defeats a § 1983 malicious
15
prosecution claim. Id.
In this case, Defendants stake their motion for summary
judgment on the existence of probable cause.
Plaintiff,
however, filed a cross-motion for summary judgment, in which
he asserts that probable cause was lacking as a matter of law.
1.
Actual Probable Cause
For
probable
objectively
cause
reasonable
circumstances.
to
based
exist,
on
an
the
Wood, 323 F.3d at 882.
arrest
must
totality
of
be
the
Probable cause to
arrest exists where the facts and circumstances within the
police officer's knowledge "warrant a reasonable belief that
the suspect had committed or was committing a crime."
Case v.
Eslinqer. 555 F.3d 1317, 1327 (11''^ Cir. 2009) (quoted source
omitted).
"Probable cause requires only a probability or
substantial chance of criminal activity, not an actual showing
of such activity."
Atterburv v. Citv of Miami Police Deo't.
322 F. App'x 724, 727 (11'"'' Cir. 2009) (quoted source omitted).
"Thus, an officer must have something more than mere suspicion
but he may have less than convincing proof."
Id. (cited
source omitted).
Whether the facts and circumstances give rise to actual
probable cause for an arrest depends on the elements of the
crime.
Crosby v. Monroe Cntv.. 394 F.3d 1328, 1332 (11*"^ Cir.
Defendants also contend that there is no evidence of
This element will be discussed infra.
malice in the case.
16
2004).
Plaintiff was arrested for criminal attempt to commit
child molestation.
Under Georgia law, a person commits the
crime of child molestation ''when such person does any immoral
or indecent act to or in the presence of or with any child
under the age of 16 years with the intent to arouse or satisfy
the sexual
desires of either the
O.C.G.A. § 16-6-4 (emphasis added).
child or the
person."
"[T]he law against child
molestation . . . proscribe[s] acts which offend against the
public's sense of propriety as well as to afford protection to
a child's body in those cases where the act or acts are more
suggestive
of
sexually
assaultive in nature."
oriented
misconduct
than
simply
Benson v. Facemyer. 657 F. App'x 828,
834 (11*^^ Cir. 2016) (quoting Chapman v. State. 318 S.E.2d 213,
214 (Ga. Ct. App. 1984)).
"A person commits the offense of
criminal attempt when, with intent to commit a specific crime,
he performs any act which constitutes a substantial step
toward
the
commission
of
that
crime."
O.C.G.A.
§
16-4-1
(emphasis added).
In this case, the suspect told Rachel Lucas, the mother
of children under the age of 16, that he wanted to have kids
and then offered to pay her $200 an hour to spend time alone
with her daughters.
The officers then assumed this offer was
a substantial step manifesting the suspect's intent to commit
child molestation.
With this assumption, the officers assumed
17
that the suspect's motive was to arouse or satisfy sexual
desires.
The warrant read that the accused solicited Lucas
''for the purpose of sexual gratification and to in pregnant
(sic)."
Aside from the officers' assumption, however, there
is no evidence of the suspect's intended purpose.
The Court
concedes that an offer to pay $200 an hour to spend time alone
with prepubescent children is odd and socially improper,
perhaps even "creepy" as opined by defense counsel {Lucas Dep.
at 112), but without any evidence of the suspect's purpose,
there is not a probability or substantial chance that he
intended to commit child molestation.^
Speculation or mere
suspicion of his intended purpose does not give rise to
probable cause.
officer
under
Thus, as a matter of law, no reasonable
these
facts
and
circumstances
would
have
believed that a crime had been committed.
2.
Now
Malice
that
the
Court
has
determined
that
there
was
no
probable cause to support Plaintiff's arrest and prosecution,
it must ensure that all other elements of a § 1983 malicious
prosecution claim are met as a matter of law prior to entering
^
Rachel Lucas's testimony demonstrates this point.
When asked if there was any doubt in her mind that the suspect
wanted to do something improper with her daughters, she
responded: "Who's to say."
(Lucas Dep. at 112.)
Additionally, Defendant Jones conceded at the preliminary
hearing that Lucas did not mention that the suspect wanted to
have sex or "anything like that" in her initial report.
(Prelim. Hrg. Tr. at 22.)
18
judgment in Plaintiff's favor.
It is undisputed that a
criminal prosecution was instituted against Plaintiff as a
result of his arrest and that it terminated in Plaintiff's
favor when the charges were dismissed at the preliminary-
hearing.
It is also beyond dispute that Plaintiff suffered
damages, having spent 42 days in jail illegally, though the
amount of damages is a matter yet to be determined.
The
remaining element involves the presence of malice.
Defendants contend that there is no evidence of malice.
The malice element of malicious prosecution shows in "personal
spite or . . . a general disregard of the right consideration
of
mankind,
injured."
Ga.
directed
by
chance
against
the
individual
Smith v. Citv of Hartwell. 2014 WL 1491137 (M.D.
Apr. 15,
2014)
(citing
Franklin v.
Consol.
Gov't of
Columbus. Ga.. 512 S.E.2d 352, 356 (Ga. Ct. App. 1999)).
"Malice may be inferred from a total lack of probable cause;
however, evidence of malice cannot rely solely on 'proof of
the
want
of
probable
cause
[if]
that
proof
shows
some
circumstances pointing to the guilt of the accused,
'" Id.
(quoting Franklin. 512 S.E.2d at 356).
In brief. Defendants argue that the Court cannot simply
rely upon the lack of probable cause to infer malice because
there was evidence pointing to Plaintiff's guilt such as the
photographic line-up and the description of the truck matching
19
Plaintiff's truck.
Defendants' focus on their identification
of the suspect as a reasonable mistake presumes that a crime
had been committed.
There had not been.
The Court has not
determined that there is a total lack of probable cause to
suspect Plaintiff; rather, there is a total lack of probable
cause to support any arrest. Thus, it is irrelevant whether
evidence pointing to the guilt of the accused. Plaintiff,
exists.
Simply put, the arrest of anyone under the facts and
circumstances
of
this
case
demonstrates
a
total
lack
of
probable cause so that malice may be inferred as a matter of
law.
3.
Municipal Liabilitv
Defendant City of Grovetown contends that even if there
has been a constitutional violation, it cannot be held liable.
It is axiomatic that municipalities cannot be "vicariously
liable under § 1983 for their employees' actions."
Connick v.
Thompson. 563 U.S. 51, 60 (2011); Griffin v. City of Qpa-
Locka, 261 F.3d 1295, 1307 (11'^^ Cir. 2001). "To impose § 1983
liability on a municipality, a plaintiff must show: (1) that
his
constitutional
municipality
had
rights
a
custom
were
or
violated;
policy
(2)
that
that
the
constituted
deliberate indifference to that constitutional right; and (3)
that the policy or custom caused the violation."
Brown. 392 F.3d 1283, 1289 (11'"'' Cir. 2004).
20
McDowell v.
While Plaintiff has not shown, or even alleged, a policy
or custom in this case, "[a] municipality may be held liable
for a single act or decision of a municipal official with
final
policymaking
decision."
authority in
the
area
of
the
act
or
McMillan v. Johnson. 88 F.3d 1573, 1577 (ll*^*^ Cir.
1996) (citations omitted), aff'd sub nom. McMillan v. Monroe
Cty.. Ala.. 520 U.S. 781 (1997).
Here, Defendants concede
that Defendant Jones, the Chief of Police of the City of
Grovetown's
Department
of
Public
policymaking
authority
over
the
Safety,
arrest
of
had
final
Plaintiff.
Moreover, Defendant Jones was personally involved in the
investigation
Defendant
arrested.
and
Jones
identification
was
present
at
of
the
Plaintiff.
time
Indeed,
Plaintiff
was
Accordingly, Defendant Jones's conduct supports
municipal liability in this case.
4.
Individual Liabilitv
''Qualified
immunity
offers
complete
protection
for
government officials sued in their individual capacities if
their conduct 'does not violate clearly established statutory
or constitutional rights of which a reasonable person would
have known.'" Benson. 657 F. App'x at 832 (quoting Wood.
323
F.3d at 877, and Vinvard v. Wilson. 311 F.3d 1340, 1346 (ll*^^
Cir. 2002)).
Absent probable cause. Defendants Jones and
Nalley are still entitled to qualified immunity if "arguable
21
probable cause" exists.
Case. 555 F.3d at 1327; see Jones v.
Cannon. 174 F.3d 1271, 1283 n.3 (11'"'' Cir. 1999) ("Arguable
probable cause, not the higher standard of actual probable
cause, governs the qualified immunity inquiry.").
Arguable probable cause exists "where reasonable officers
in the same circumstances and possessing the same knowledge as
the Defendants could have believed that probable cause existed
to arrest the plaintiffs."
Scarbrouah v. Myles. 245 F.3d
1299, 1302 (ll'^^ Cir. 2001) (quoted sources omitted).
This
standard recognizes that a law enforcement official may make
a reasonable but mistaken judgment regarding probable cause.
Pearson v. Callahan. 555 U.S. 223, 231 (2009); Skop v. City of
Atlanta. Ga.. 485 F.3d 1130, 1137 (11'^^ Cir. 2007).
Here, Defendants argue that a reasonable officer in their
circumstances could have believed, even if mistakenly so, that
probable cause existed.
They point out that even the District
Attorney's office and a detached neutral magistrate believed
that a crime had been committed.
The facts of the instant case are similar to
the facts
in Benson v. Facemver. 657 F. App'x 828, wherein the Eleventh
Circuit
probable
was
faced
with
cause existed
molestation.
the
same
issue:
whether
arguable
to arrest the plaintiff for child
In Benson, the plaintiff was walking in a park
in Atlanta, Georgia, when he encountered a woman and her two-
22
year old daughter.
According to the plaintiff, he told the
young girl that she had a beautiful pink dress, and the child
then "grabbed her bodice, yanked it up about a half an inch
and yell[ed], Panties." Id. at 829. The plaintiff commented:
"My daughter used to wear panties just like yours."
Id.
The
child's mother, however, called the police department and
reported that a man had approached them and asked her daughter
about the color of her panties.
Id. at 829-30.
The police
department responded to the park and located the plaintiff.
The responding officer detained the plaintiff in a police
wagon while he conducted an investigation. He interviewed the
mother,
who
told
them
that
the
plaintiff
had
asked
her
daughter "if her panties were pretty and matched her dress."
Id. at 830.
The officer discussed the incident with three
other officers, one of whom also called an assistant district
attorney
about
the
case.
All
of
the
officers
and
the
assistant district attorney agreed that probable cause existed
to arrest the plaintiff for child molestation.
Id.
Because there was a dispute over critical facts, the
district court denied qualified immunity and conducted a jury
trial on the plaintiff's § 1983 claim for false arrest.
The jury awarded damages for the plaintiff.
Id.
On appeal, the
Eleventh Circuit examined whether the defendant officer had
arguable probable cause to arrest the plaintiff for child
molestation.
Id. at 834.
The Eleventh Circuit answered no.
23
Id.
at
835.
Importantly/
the
Eleventh
Circuit
stated:
"Arguable probable cause does not exist if it is 'clear that
the conduct in question does not rise to the level of a crime,
under the facts known at the time.
'
This is an objective
standard, and the officer's subjective intent, beliefs, or
inferences are not part of the inquiry."
Id. at 834 (citing
Rushing v. Parker. 599 F.3d 1263, 1266 (11"^^ Cir. 2010) (an
officer's "'subjective
beliefs
about
the
matter,
however
induced, are actually irrelevant to the inquiry'" (quoted
source
omitted)).
defendant
Thus,
officer
had
it
was
received
of
no
advice
moment
from
an
that
the
assistant
district attorney and his fellow officers or that he truly
believed a crime had been committed.
a reasonable
committed.
officer
would
have
The question is whether
believed a crime
had been
The answer to that question here, as it was in
Benson, is no.
Because the Court finds that no reasonable officer in the
same circumstances and possessing the same knowledge as the
Defendants could have believed the conduct in question rose to
the level of a crime, arguable probable cause did not exist.
Thus,
Defendants
Jones
and
Nalley
are
not
entitled
to
qualified immunity.
B.
Unlawful Search
Plaintiff's
claim
for
unlawful
search
stems
from
the
search warrant obtained from the county magistrate judge to
24
search
his
fiancee's
home
to
allegedly worn by the suspect.
find
articles
of
clothing
It is axiomatic that a search
warrant must be supported by probable cause.
4*^^ Amendment
(quote); United States v. Carson. 520 F. App'x 874, 888 (ll'^^
Cir. 2013).
exists
"Probable cause to support a search warrant
when
conclusion
the
that
totality
there
is
of
a
the
fair
circumstances
probability
allow
a
of
finding
contraband or evidence at a particular location."
United
States V. Flowers. 531 F. App'x 975, 981 (11*^^ Cir. 2013).
The problem in this case is that Defendant Nalley sought
a warrant to locate clothes as evidence of a non-existent
crime.
Thus, as a matter of law, the search warrant was
sought without a fair probability that contraband or evidence
of a crime would be located.
For this reason. Plaintiff is
also entitled to partial summary judgment on his § 1983
unlawful search claim.
C.
State-Law Claims
The remaining claims in the case are state law claims of
negligence and malicious prosecution against Defendant City of
Grovetown. Because the federal claim of malicious prosecution
required Plaintiff to prove the elements of a Georgia state
law claim of malicious prosecution. Plaintiff is entitled to
partial summary judgment as to liability on the state law
claim of malicious prosecution.
With respect to the negligence claim, Georgia courts have
25
explained that there is no action for negligent false arrest
or negligent prosecution.
Daniel.
368
S.E.2d
768,
See First Union Bank of Ga. v.
770 (Ga.
Ct. App. 1988) (citing
Stewart v. Williams. 255 S.E.2d 580, 581-82 (Ga. 1979)).
Indeed, to the extent that Defendants committed malicious
prosecution, any loss arising from their conduct has been
caused by intentional acts, not negligence.
While Plaintiff
could conceivably state a claim for negligence based upon a
distinct act of negligence by Defendant City of Grovetown,
that conduct must pertain to something other than the conduct
giving rise to his federal claim of malicious prosecution.
The negligence allegations in the amended complaint focus on
the alleged conduct of Defendants leading up to Plaintiff's
arrest, such as an improper identification process and the
disregard of exculpatory evidence. (See Am. Compl. tH 153-60.)
These allegations, however, support Plaintiff's claim of
malicious
prosecution.
Thus,
Plaintiff
has
not
alleged
distinct conduct supporting a separate negligence claim.
Accordingly,
Defendant
City of
Grovetown
is
entitled
to
summary judgment on the negligence claim.®
The Court recognizes that Plaintiff moved for judgment as
a matter of law that Defendant City of Grovetown has waived
®
Of note. Plaintiff did not respond to Defendants'
motion for summary judgment on the negligence claim.
(See
Defs. Mot. for Summ. J., Doc. 58, at 15.) Accordingly, it
'
appears Plaintiff has abandoned the claim in any event.
26
its
sovereign
insurance.
immunity
with
the
purchase
of
liability
At this time, the Court will defer resolution of
this issue.
IV. CONCLUSION
Upon
the
foregoing,
Defendants'
motion
for
summary
judgment {doc. 58) is DENIED IN PART and GRANTED IN PART.
Plaintiff's
state
law
claim
of
negligence
is
dismissed.
Plaintiff's motion for partial summary judgment (doc. 62) is
GRANTED IN PART in that Plaintiff has established as a matter
of law that Defendants are liable for damages on the § 1983
claims for malicious prosecution and unlawful search and the
state law claim for malicious prosecution.
Because the Court
did not consider any expert opinion from J. Douglas Parker in
resolving
this
matter.
Defendants'
testimony (doc. 60) is DENIED AS MOOT.
motion
to
limit
his
This case will proceed
to trial on damages at a time and in a manner directed by the
Court.
ORDER ENTERED at Augusta, Georgia, this
day of
August, 2018.
J. RAND^ MALL, CHIEF JUDGE
UNITEDySTATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
27
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