Hesed-El v. Federal National Mortgage Association et al

Filing 107

ORDER denying as moot 54 Motion for Hearing and Motion for Extension of Time to File; withdrawing 55 Motion for Partial Summary Judgment; denying as moot 58 Motion to Stay and Motion to Strike; granting 60 Motion to Withdraw; denying as mo ot 67 Motion for TRO; denying as moot 71 Motion to Lift Stay on Discovery; denying as moot 73 Motion to Strike; granting 88 Motion to Dismiss; denying 91 Motion for Leave to File; denying 100 Motion for Leave to File; denying as moot 103 Motion for TRO. Plaintiff's case is dismissed. The Clerk is directed to terminate document 55 and all other pending motions, if any, and close this case. Signed by Chief Judge J. Randal Hall on 03/29/2019. (thb)

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

BRO T. HESED-EL,

*
5

Plaintiff,

*
■k

V.

*

CV

117-146

*

COURTNEY MCCORD,
Individual

in Her

*

and Official

*

Capacities; VERA L. BUTLER, in

*

Her

*

Individual

and Official

Capacities; and City of
Augusta-Richmond County,

*
*
*

Defendants.

*

ORDER

This matter is before the Court on several motions.

The Court

addresses each pending motion herein.

I.

Plaintiff

Hesed-El,
2018) .

is

a

serial

CV 118-037,

BACKGROUND

filer in this Court.

2018 WL 1404893,

at *2

See Georgia v.

{S.D.

Ga.

Mar.

8,

After filing an initial complaint seemingly relating to a

property dispute

(Compl.,

amended his complaint.

Doc.

1) ,

Plaintiff, proceeding pro se,

(First Am. Compl.,

Doc.

12. )

The first

amended complaint serves as the foundation for the present action.^
(Id.)

On June 26,

2018,

Plaintiff filed a motion for partial

1 The Court set forth the initial history of this case in its Order dated August

20, 2018 ("August 20, 2018 Order") .

(August 20, 2018 Order, Doc. 81.)

summary judgment.

(Doc. 55.)

Plaintiff later sought to withdraw

that motion (Doc. 60) and requested leave to file a second amended

complaint.

(Doc. 61.)

With the Court's permission (August 20,

2018 Order, at 5-6), Plaintiff filed his second amended complaint,

the current operative pleading.

(Docs. 84, 84-1.)

As the Court

reads it. Plaintiff's second amended complaint asserts four claims

against

Defendants:

(1)

a

claim

under

42

U.S.C. § 1983 for

violation of due process rights; (2) false arrest or malicious

prosecution; (3) negligent supervision or retention; and (4) a
claim involving Defendants' failure to serve Plaintiff notice.
(Second Am. Compl. Attach., Doc. 84-1, 1% 37-61.)
The root of Plaintiff's claims is his alleged unlawful arrest.

(Id. SI 25.)

Plaintiff asserts that his arrest occurred without

probable cause (id. SISI 23, 39, 49) and attributes the unlawful
arrest to Defendant McCord, deputy clerk with the Civil Court of

Richmond County (Arrest Warrant, Doc. 33-5),^ making the probable
cause determination and issuing the warrant.

Attach.,

SISI 22,

49.)

Plaintiff

(Second Am. Compl.

additionally

contends

that

Defendant Butler, also an employee of Augusta-Richmond County (Id.
SI 4), forged the acting judge's order finding probable cause to
issue the arrest warrant.

(Id. SI 24.)

2 A district court is permitted to take judicial notice of arrest warrant in
underlying criminal case. McDowell Bey v. Vega, 588 F. App'x 923, 927 (11th
Cir. 2014).

Defendants

complaint.

moved

to

dismiss

Plaintiff's

(Defs.' Mot. to Dismiss, Doc. 88.)

second

amended

While Defendants'

motion to dismiss was pending. Plaintiff filed a motion for leave

to file his third amended complaint.

Am. Compl., Doc. 91.)

The third amended complaint seeks to add a

host of new defendants and claims.

Doc. 91-1.)

(Mot. for Leave to File Third

(Proposed Third Am. Compl.,

Plaintiff also moved for leave to file a supplemental

pleading claiming bad faith refusal to settle.^ (Doc. 100.) Before
addressing Defendants' motion to dismiss and Plaintiff's motion
for leave to file his third amended complaint, the Court resolves
several of Plaintiff's motions.

II. PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

Plaintiff requests to withdraw his motion for partial summary

judgment.

(Doc. 60.)

No party has opposed Plaintiff's motion to

withdraw.

(See Resp. to Mot. to Withdraw, Doc. 62.)

Accordingly,

the Court permits Plaintiff to withdraw his motion for partial
summary judgment.

The withdrawal moots any motions related to

Plaintiff's motion for partial summary judgment.

(Docs. 54, 58.)

3 Plaintiff also filed the following pending motions: two motions for a temporary

restraining order (Docs. 67, 103) and a motion to lift the discovery stay (Doc.
71).

III. PLAINTIFF'S MOTION TO STRIKE

Plaintiff

filed

a

motion

to

strike

Defendant

McCord's

opposition to Plaintiff's motion for partial summary judgment,
Defendant McCord's opposition to Plaintiff's motion for leave to
file his second amended complaint and supporting affidavit, and
Defendant McCord's reply in support of her motion to set aside the

entry of default and to dismiss.

(Doc. 73.)

As set forth in

section II, supra, Plaintiff's motion for partial summary judgment
is withdrawn.

The remaining filings that Plaintiff requests the

Court

also

strike

relate

to

motions

previously

resolved.

Therefore, Plaintiff's motion to strike is moot.

IV. PLAINTIFF'S MOTION TO LIFT STAY

By

Order

dated

March

6,

2018

(Doc.

38),

United

States

Magistrate Judge Brian K. Epps stayed discovery pending resolution
of Defendant McCord's motion to dismiss (Doc. 32).

the Court to lift the discovery stay.

71.)

Plaintiff asks

(Mot. to Lift Stay, Doc.

Pursuant to the Court's August 20, 2018 Order, Plaintiff's

motion for leave to amend complaint was granted, and Defendant
McCord's motion to dismiss was denied as moot.

Order, at 6.)

(August 20, 2018

Because the original motion to stay remained in

force until the Court resolved Defendant McCord's original motion

to dismiss, the denial of Defendant McCord's motion to dismiss

lifted the initial stay.

As such, Plaintiff's motion to lift the

stay is moot.''

V. DEFENDANTS' MOTION TO DISMISS

A. Standard

In considering a motion to dismiss under Rule 12(b)(6), the
Court tests the legal sufficiency of the complaint.

Scheuer v.

Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by

Davis V. Scherer, 468 U.S. 183 (1984). Under Federal Rule of Civil
Procedure 8(a)(2), a complaint must contain a "short and plain
statement of the claim showing that the pleader is entitled to

relief" to give the defendant fair notice of both the claim and

the supporting grounds.
555 (2007).

Bell Atl. Corp. v. Twombly, 550 U.S. 554,

Although "detailed

factual allegations" are

not

required. Rule 8 "demands more than an unadorned, the-defendantunlawfully-harmed-me accusation."

Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Twombly, 550 U.S. at 555).
"To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true,^ to ^state a claim to

relief that is plausible on its face.'" Id. (quoting Twombly, 550

The Court notes that following filing of Plaintiff's second amended complaint
and Defendants' motion to dismiss Plaintiff's second amended complaint, Judge

Epps entered an order staying discovery pending resolution of Defendants' motion
to dismiss Plaintiff's second amended complaint.
Consequently, discovery is presently stayed.

(Order, Doc. 92, at 1-2.)

5 The Court must accept all well-pleaded facts in the complaint as true and
construe all reasonable inferences therefrom in the light most favorable to the

plaintiff.

Garfield v. NDC Health Corp., 466 F.3d 1255, 1261 (11th Cir. 2006).

U.S. at 570).
allows

the

The plaintiff must plead ''factual content that

court

to

draw

the

reasonable

defendant is liable for the misconduct."

inference

Id.

that

the

"The plausibility

standard is not akin to a ^probability requirement,' but it asks

for more than a sheer possibility that a defendant has acted

unlawfully."

Id.

A plaintiff's pleading obligation "requires

more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do."

at 555.

Twombly, 550 U.S.

"Nor does a complaint suffice if it tenders 'naked

assertions' devoid of 'further factual enhancement.'"

U.S. at 678 (quoting Twombly, 550 U.S. at 557).

Iqbal, 556

Furthermore, "the

court may dismiss a complaint pursuant to Rule 12(b)(6) when, on
the basis of a dispositive issue of law, no construction of the
factual allegations will support the cause of action."

Marshall

Cty. Bd. of Educ. v. Marshall Cty. Gas Dist., 992 F.2d 1171, 1174
(11th Cir. 1993).

As for pro se plaintiffs, "a pro se complaint,

however

inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers."
U.S. 89, 94 (2007).

Erickson v. Pardus, 551

"Even though a pro se complaint should be

construed liberally, [it] still must state a claim upon which the

Court can grant relief."

Wilson v. Vanalstine, No. l:17-cv-615-

WSD, 2017 WL 4349558, at *2 (N.D. Ga. Oct. 2, 2017) (quoting
Grigsby v. Thomas, 506 F. Supp. 2d 26, 28 (D.D.C. 2007)).

Pro se

litigants are required to comply with procedural rules, and ^^the
court is not required to rewrite deficient pleadings."

Jacox v.

Pep"t of Def., 291 F. App'x 318, 318 {11th Cir. 2008) (citing GJR
Invs., Inc. V. Cty. of Escambia, 132 F.3d 1359, 1369 (11th Cir.
1998) (overruled on other grounds)).
B. Discussion

1.

Count

I

-

Section

1983

&

Count

II

-

False

Arrest

or

Malicious Prosecution

Although branded as a cause of action for violation of due

process, for the reasons below, the Court interprets Plaintiff's
first claim as a section 1983 claim for malicious prosecution or
false arrest.

The Court treats Plaintiff's second claim as a state

law cause of action for malicious prosecution or false arrest.®

To prove a federal and Georgia claim for malicious prosecution.
Plaintiff must show: ''(1) a criminal prosecution instituted or

continued by the present defendant; (2) with malice and without

probable cause; (3) that terminated in the plaintiff accused's
favor; and (4) caused damage to the plaintiff accused."

®

Defendants

cite

affidavits

in

the

record

to establish

that

Kjellsen

Plaintiff's

allegations concerning the probable cause hearing and issuance of the arrest
warrant are false.

The Federal Rules of Civil Procedure instruct that, upon

considering a motion to dismiss for failure to state a claim, when "matters
outside the pleadings are presented to and not excluded by the court, the motion
must be treated as one for summary judgment under Rule 56."

Fed. R. Civ. P.

12(d); see also Garfield, 4 66 F.3d at 1260 n.2. However, a court is not required
to consider matters outside the pleadings; rather, whether to consider such
matters is within the court's discretion.

See Harper v. Lawrence Cty., 592

F.Sd 1227, 1232 (11th Cir. 2010) ("A judge need not convert a motion to dismiss
into a motion for summary judgment as long as he or she does not consider
matters outside the pleadings."). Here, the Court refrains from considering
matters outside the pleadings, and therefore, need not convert Defendants'
motion to dismiss into a motion for summary judgment.

. Mills, 517 F.3d 1232, 1237 (11th Cir. 2008).

V

arrest

without

probable

cause

violates

the

''A warrantless

Constitution

and

provides a basis for a section 1983 claim" for false arrest.
Kinqsland v. City of Miami, 382 F.3d 1220, 1226 (11th Cir. 2004).

Under Georgia law, 'Ma]n aggrieved plaintiff must prove three
elements in a false arrest claim: an arrest under the process of

law, without probable cause[,] and made maliciously."

Simmons v.

Mableton Fin. Co., 562 S.E.2d 794, 797 (Ga. Ct. App. 2002).
As

stated

under

federal

and

Georgia

law,

both

malicious

prosecution and false arrest include probable cause as a material
element.

Although

a

plaintiff is not required to ''allege a

specific fact to cover every element or allege with precision each
element of a claim, it is still necessary that a complaint contain
either

direct

or

inferential

allegations

respecting

all

the

material elements necessary to sustain a recovery under some viable

legal theory." Frazile v. EMC Mortg. Corp., 382 F. App'x 833, 836
(11th Cir. 2010) (quoting Roe v. Aware Woman Ctr. for Choice, Inc.,
253 F.3d 678, 683 (11th Cir. 2001)).

Plaintiff has not alleged

facts to sustain a recovery under another legal theory. Therefore,
as a material element of malicious prosecution and false arrest.

Plaintiff must allege, at a minimum, non-conclusory allegations
allowing the Court to infer the absence of probable cause.

See

Martin v. Wood, 648 F. App'x 911, 916 (11th Cir. 2016) (affirming
dismissal

for

failure

to

state
8

claims

for

false

arrest

and

malicious

prosecution

demonstrating

that

when

any

plaintiff

^^failed

officer . . . acted

to

allege

without

facts

probable

cause''); Walker v. Dean, No. 1:15-CV-3602-WSD, 2016 WL 3227501, at

*4 (N.D. Ga. June 13, 2016) (dismissing false arrest claim, in

part, because
assertion

[p]laintiff's [cjomplaint contain[ed] only the bare

that

the

warrant for

his

arrest

^was issued

without

probable cause'"); Taylor v. United States, No. CV 314-006, 2014
WL 11468757, at *4 (S.D. Ga. June 18, 2014) (dismissing state law

malicious prosecution claim upon plaintiff s failure to allege
facts sufficient to show lack of probable cause).

allegations

demonstrating

the

absence

of

Without factual

probable

cause

for

Plaintiffs arrest. Plaintiff fails to state a plausible claim for

malicious prosecution or false arrest.

Iqbal, 556 U.S. at 678.

Here, Plaintiff fails to offer more than the legal conclusion
that his arrest occurred without probable cause.

Compl. Attach.,

SISI 39

(See Second Am.

fDefendants deprived Plaintiff of his

liberty without due process of law by unlawfully seizing his body
and arresting his person without any probable cause or legal
authorization."), 49 (''Because Plaintiff was maliciously arrested

without

probable

cause

and

without

the

prerequisite

legal

procedure. Defendant McCord is liable for signing the warrant for
his arrest.").)

offers,

are

Threadbare conclusions, such as those Plaintiff

insufficient

to

establish

Plaintiff's

requirement under Federal Rule of Civil Procedure 8.

pleading

See Davila

V. Delta Air Lines^ Inc., 326 F.Sd 1183, 1185 {11th Cir. 2003)

(^MC]onclusory
legal

allegations,

conclusions

dismissal.").

unwarranted

masquerading

as

factual

facts

deductions

will

not

or

prevent

As pleaded. Plaintiff's malicious prosecution and

false arrest counts fail to state a claim upon which relief may be
granted against all Defendants.

Despite

not

satisfying

his

obligation

to

allege

facts

sufficient to show the absence of probable cause. Plaintiff further
asserts that Defendant McCord's lack of authority to conduct and

issue

warrants

violated

Plaintiff's

rights

pursuant

to

Constitution's Fourth, Fifth, and Fourteenth Amendments.

to

42

U.S.C. § 1983, "Every

person

who,

under

the

Pursuant

color

of any

statute . . . subjects, or causes to be subjected, any citizen of
the United States or other person within the jurisdiction thereof

to the deprivation of any rights . . . secured by the Constitution
and laws, shall be liable to the party injured . . . ."
statute confers no substantive rights on its own.

permits

"a

conferred."

method
Graham

(citation omitted).

for
v.

vindicating
Connor,

490

federal
U.S.

Instead, it

rights

386,

elsewhere

393-94

(1989)

In a section 1983 suit, a court must:

"[I]solate the precise constitutional violation

with

which [the] defendant is charged." Baker v. McCollan,
443 U.S. 137[, 140] . . . (1979).
If an Amendment

provides an explicit textual source of constitutional
protection against the sort of conduct complained of,
that Amendment — not the more generalized notion of

substantive due process under the Fourteenth Amendment
10

The

— is the guide for analyzing the claim.

See Graham v.

Connor, 490 U.S. 386[, 393-94] . . . (1989) . . . .

For

example,
in
Albright
v.
Oliver,
510
U.S.
266 . . . (1994), the Supreme Court refused to recognize
a substantive due process right under the Fourteenth
Amendment to be free from criminal prosecution except

upon probable cause; the Court determined that such a
claim must be analyzed under the Fourth Amendment.

Id.

at [273].

Jordan v. Mosley, 298 F. App'x 803, 805 (11th Cir. 2008).

The

text of the Fourth Amendment explicitly confers the right to be
free from seizure without due process of law.

Accordingly, the

generalized guarantees of substantive due process contained in the
Fifth"' and Fourteenth Amendments are inapplicable.®

Analyzing Plaintiff's section 1983 claim under the Fourth
Amendment, Plaintiff alleges that Defendant McCord lacked the

authority to make a probable cause determination and issue an
arrest warrant.

■'

Plaintiff

also

Plaintiff fails to establish facts sufficient to

cannot

state

a

section

1983

claim pursuant

to

the

Fifth

Amendment because the Fifth Amendment applies to persons acting under color of
federal law.

Schweiker v. Wilson,

450 U.S. 221,

226 n.6

Defendants named were acting under color of federal law.
Attach.,

(1981) .

None of the

(Second Am. Compl.

If 2-4. )

® The case presents a question as to whether Defendants McCord and Butler can
be liable for a section 1983 claim for false arrest as a matter of law.

Eleventh Circuit

has

plaintiff must show

set

forth,

''To establish

[section]

1983

As the

liability,

'proof of an affirmative causal connection'

a

between a

government actor's acts or omissions and the alleged constitutional violation,
which 'may be established by proving that the official was personally involved
in the acts that resulted in the constitutional deprivation.'" Brown v. City
of Huntsville, 608 F.3d 724, 737 (11th Cir. 2010) (finding mere presence of law
enforcement officers at

scene of arrest

insufficient

to meet requirement of

causal connection) (quoting Zatler v. Wainwriqht, 802 F.2d 397, 401 (11th Cir.
1986) ) .
Plaintiff is required to show the "defendant officer was part of the
chain of command authorizing the arrest action." Id.
Because Plaintiff does
not contend that Defendants actually participated in his arrest, it is unclear
whether Defendants were personally involved in the alleged deprivation of

rights.

Nevertheless,

the

Court

refrains

from addressing

Plaintiff fails to state a claim for other reasons.
11

this

issue

as

show that, even accepting Plaintiff's allegation that Defendant
McCord made the probable cause determination. Defendant McCord
lacked the authority to do so.^

The United States Supreme Court

established a two-part test to determine whether the person issuing
the arrest warrant is qualified under the Fourth Amendment: (1)
^MS]he must be neutral and detached"; and (2) ^MS]he must be

capable of determining whether probable cause exists for the
requested arrest or search."
345,

Shadwick v. City of Tampa, 407 U.S.

350-51 (1972) (finding

municipal court clerks

possessed

constitutional authority to issue arrest warrants for violations

of municipal ordinances). Plaintiff alleges no facts setting forth
that Defendant McCord lacked independence from law enforcement or

was incapable of making a probable cause determination.
Additionally, the persons in question are employed with the
Civil Court of Richmond County.

Upon establishing the magistrate

courts in Georgia, the Georgia Constitution expressly authorized
the continued existence of the Civil Court of Richmond County.

Const.

art.

6,

§ 10,

SI 1(5)

(^MT]he

Richmond . . . [C]ount[y] . . . shall

Civil

continue

Court[]

with

the

Ga.

of
same

jurisdiction as such court[] . . . ha[s] on the effective date of

5 Defendant McCord is likely entitled to judicial immunity according to
Plaintiff's alleged facts.
As the Eleventh Circuit determined in Scott v.
Dixon, when a clerk performs a function normally reserved for a judge and is

not acting in "clear absence of all jurisdiction," she "falls within this
circuit's narrow extension of absolute judicial immunity to court clerks." 720
F.2d 1542, 1546-47 (11th Cir. 1983).
12

this article unless otherwise provided by law,").

The Georgia

Legislature's local legislation authorizes clerks of the Civil
Court of Richmond County to issue arrest warrants:

The clerk and deputy clerks of said Civil Court shall
have complete power and authority, co-existent and
coordinate with the power of the judges of said court,
under the provisions of this Act, to issue any and all
warrants, civil and criminal, . . . which under the laws
of this State are performable by a justice of the peace.
1974 Ga. Laws 2410, at 2417, § 12.

The Georgia Legislature later

amended the clerk's authority:

The clerk and each deputy clerk of the Civil Court of

Richmond County shall continue to exercise the power and
authority, under the immediate supervision of the chief
judge or the [presiding] judge of said court, to issue
warrants for the arrest of persons charged

with the

commission of crimes committed in Richmond County, to

the same extent as those clerks and deputy clerks have
heretofore been authorized to act.

1984 Ga. Laws 4467, at 4471, § 2(b).

Therefore, in light of

Shadwick and the Georgia General Assembly's local legislation

regarding clerks of the Richmond County Civil Court, the Court
concludes that

Plaintiff fails to state

a

section

im
1983 clad

against Defendant McCord.^o

^0 As part of Plaintiff's claim that Defendant McCord lacked authority to issue
the arrest warrant, Plaintiff appears to allege that Defendant McCord did not
take the necessary oath of office. To the extent Plaintiff argues that Defendant
McCord acted contrary to Georgia law, in failing to take the necessary oaths,
the Court

need not address this issue

under Plaintiff's section 1983 and

intentional tort claims dismissed on other grounds. Irrespective of any dispute

regarding Defendant McCord's oaths of office, Shadwick establishes that —
constitutionally speaking — Defendant McCord was qualified under the Fourth
Amendment.

13

2. Count III - Negligent Supervision or Retention

Plaintiff also asserts a claim for negligent supervision or
retention.

Defendant

It

Butler

(^'Defendant

or

unclear

whether

Defendant

Augusta").

consequence.
and

is

the

claim

is

directed

City of Augusta-Richmond

Ultimately,

the

distinction

at

County

is of

no

Under Georgia law, claims for negligent supervision

retention '"are

derivative

underlying substantive claim.

and

cannot

survive

without

the"

Anderson v. Dunbar Armored, Inc.,

678 F. Supp. 2d 1280, 1329 (N.D. Ga. 2009) (citing Metro. Atl.
Rapid Transit Auth. v. Mosley, 634 S.E.2d 466, 469 (Ga. Ct. App.
2006)); accord Keisha v. Dundon, 809 S.E.2d 835, 838 (Ga. Ct. App.

2018); Hosp. Auth. of Valdosta/Lowndes Cty. v. Fender, 802 S.E.2d

346, 355 (Ga. Ct. App. 2017) ("'Like claims based on respondeat

superior,

claims

against

a

defendant

employer

for

the

negligent . . . supervision[] and retention of an employee are
derivative of the underlying tortious conduct of the employee.").

Following the Court's conclusion regarding Plaintiff's Counts I

If Plaintiff's negligent supervision or retention claim is a disguised claim
against Defendant Butler pursuant to theories of respondeat superior or
vicarious liability, the claim also necessarily fails. Hartley v. Parnell, 193
F.3d 1263, 1269 (11th Cir. 1999) ("It is well established in this circuit that

supervisory

officials

are

not

liable

under

[section]

1983

for

the

unconstitutional acts of their subordinates on the basis of respondeat superior

or vicarious liability.") (internal quotation marks and citation omitted).
14

and

II,

Plaintiff's

negligent

supervision

or

retention

claim

necessarily fails for want of an underlying substantive claim.
3.

Count

IV

-

Issuance

of

Judicial

Process

in

Want

of

Jurisdiction

Finally, Plaintiff asserts a claim against Defendant Augusta
for its alleged ^'deliberate[] and malicious[]" failure to serve
Plaintiff

with

notice.

Attempting

to

construe

Plaintiff's

complaint liberally, the Court stretches to interpret Plaintiff's
claim as one for deprivation of procedural due process rights under
the Fourteenth Amendment pursuant to section 1983.

"Procedural

due process generally requires some type of notice and hearing
before the [s]tate deprives a person of liberty . . . ."

Dennen

V. City of Norcross, No. 1:05-CV-2660-CC, 2006 WL 8432556, at *4

(N.D. Ga. Aug. 14, 2006) (citing Zinermon v. Burch, 494 U.S. 113,
127 (1990)). Even employing its imagination to find that Plaintiff
has alleged a recognizable theory of recovery, see Sanjuan v. Am.
Bd. or Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (7th Cir.

1994) ("At this stage[,] the plaintiff receives the benefit of

imagination."), the Court finds Plaintiff fails to state a claim
for relief.

Initially, the Court turns to Plaintiff's allegation that

"any related judicial orders issued by a city judge [were] done in
want of jurisdiction and authority."
^ 61.)

(Second Am. Compl. Attach.,

To this point in the litigation. Plaintiff has refrained

15

from naming Judge Scott Allen as a defendant, and the issuing of
judicial orders to which Plaintiff alludes plainly falls under

judicial immunity protection.

Stump v. Sparkman, 435 U.S. 349,

359 (1978) C'A judge is absolutely immune from liability for his

judicial acts . . . .")

The Court, therefore, construes that

Plaintiff intends to impose this liability on Defendant Augusta

for the judge's alleged entry of orders without jurisdiction.
Nevertheless, it is well-established that ''a municipality cannot

be

held

theory."

liable

under

[section] 1983 on

a

respondeat superior

Monell v. Dep't of Soc. Servs. of N.Y.C., 436 U.S. 658,

691 (1978); s^ also Hartley, 193 F.3d at 1269.

Thus, Plaintiff

fails to state a claim against Defendant Augusta in this manner.
Second,

to

the

extent

Plaintiff

asserts

that

Defendant

Augusta directly infringed upon his procedural due process rights,
his claim only succeeds upon a showing that the alleged conduct —
here, deliberate and malicious failure to serve him with process
— was attributable to a policy or custom of Defendant Augusta.
Collins V. City of Marker Heights, 503 U.S. 115, 120-23 (1992).

Therefore,

Plaintiff

is

required

to

show:

^Ml)

that

his

constitutional rights were violated; (2) that the municipality had
a custom or policy that constituted deliberate indifference to
that constitutional right; and (3) that the policy or custom caused

12 Judge Allen is named as a defendant in Plaintiff's proposed third amended
(Proposed Third Am. Compl., 1 68.)

complaint.

16

the violation."

Martin, 648 F. App'x at 914 (citing McDowell v.

Brown, 392 F.3d 1283, 1289 (11th Cir. 2004)).

''To demonstrate a

policy or custom, it is generally necessary to show a persistent
and wide-spread practice."

McDowell, 392 F.3d at 1290 (internal

quotation marks and citation omitted).

In

the

establish

present

case,

it

is

dubious

that

Plaintiff

can

any of the three requirements for direct liability

against Defendant Augusta.

It is certain, however, that Plaintiff

cannot show that Defendant Augusta employed a policy or custom to

refuse serving persons facing a pre-warrant hearing under the

alleged facts.

targeted him.

Plaintiff only alleges that Defendant Augusta

(Second Am. Compl. Attach., SI 60.)

Under binding

precedent, that is insufficient to state a section 1983 claim
against the municipality.

Because Plaintiff fails to allege facts allowing the court to

infer a viable legal theory, his complaint is dismissed in its

entirety pursuant to Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim upon which relief can be granted.

VI. Plaintiff's Motion for Leave to Amend Complaint

Plaintiff's proposed third amended complaint asserts a number
of new claims. Counts V-X, against a number of new defendants.

Yet, the proposed third amended complaint does nothing to cure the
existing deficiencies in the second amended complaint.
17

A. Motion to Amend Standard

Plaintiff may no longer amend his complaint as a matter of
course.

See Fed. R. Civ. P. 15(a)(1).

Therefore, Plaintiff ^'may

amend [his] pleading only with the opposing party's written consent
or the court's leave." Fed. R. Civ. P. 15(a)(2).

Defendants have

not provided written consent. (See Resp. in 0pp. to Mot. for Leave
to File Third Am. Compl., Doc. 93.)

Therefore, Plaintiff may only

amend with the Court's leave.

District courts are given ''extensive discretion" to decide
whether to allow an amended complaint.
166

F.3d

1157,

1162

(11th

Cir.

Campbell v. Emory Clinic,

1999).

In

exercising

its

discretion, the Eleventh Circuit has set forth five factors for
the district court to consider: (1) "undue delay," (2) "bad faith

or dilatory motive on the part of the movant," (3) "repeated
failure to cure deficiencies by amendments previously allowed,"

(4) "undue prejudice to the opposing party by virtue of allowance
of the amendment," and (5) "futility of amendment."

Seiger ex

rel. Seiger v. Philipp, 735 F. App'x 635, 637 (11th Cir. 2018)

(quoting Equity Lifestyle Props., Inc. v. Fla. Mowing & Landscape
Serv., Inc., 556 F.3d 1232, 1241 (11th Cir. 2009)).

Defendants primarily cite futility as the reason to deny
Plaintiff's motion for leave.

According to the Eleventh Circuit:

"[Djenial of leave to amend is justified by futility
when the complaint as amended is still subject to
dismissal."

Hall v. United Ins. Co. of Am., 367 F. 3d
18

1255, 1263 (11th Cir. 2004) . . . . To determine if the
proposed amendment is still subject to dismissal, a
court accepts the facts pleaded in the proposed amended

complaint as true and construes them in the light most
favorable to the plaintiff. See Spanish Broad. Sys. of
Fla., Inc. V. Clear Channel Commc[^n]s, Inc., 376 F.3d
1065, 1077 (11th Cir. 2004).

Hall V. One Point

10669420,

at *2

Fin. LLC, No. 1:09-CV-1458-WBH-AJB, 2009 WL

(N.D.

Ga.

Nov.

24,

2009).

Although pro se

plaintiffs are generally given at least one opportunity to amend,
the court is not required to grant leave to amend if granting the
amendment would be futile.

Bank v. Pitt, 928 F.2d 1108, 1112 (11th

Cir. 1991), overruled on other grounds by Wagner v. Daewoo Heavy
Indus. Am. Corp., 314 F.3d 541 (11th Cir. 2002).
B. Discussion

1.

Count

V

- 42

U.S.C. § 1983

Violations

of

Additional

Defendants

The heading of Count V of Plaintiff s proposed third amended
complaint indicates that the additional proposed defendants are

liable pursuant to section 1983.
thereunder

tell

a

different

story.

The allegations contained
The

new

section

1983

allegations lack specific facts attributing constitutional tort
liability to the newly named defendants.

The Court can only

presume that Plaintiff is seeking to attribute the same harm
asserted in Plaintiffs second amended complaint to newly proposed
defendants.

For the reasons set forth above, however. Plaintiff

failed to state a claim pursuant to section 1983 in the second

19

amended complaint.

As the proposed third amended complaint fails

to state a claim pursuant to section 1983 on its own, and it

neglects curing deficiencies in the second amended complaint's
section 1983 allegations, permitting the amendment is futile.
2. Counts VI, VII, VIII, IX, & X

Plaintiff's remaining newly proposed claims are state law

claims. (Proposed Third Am. Compl.,

80-101.) With no surviving

federal claims, the current action's posture implicates 28 U.S.C.
§ 1367. ''The district courts may decline to exercise supplemental

jurisdiction

over

a

claim

under

subsection

(a) if . . . the

district court has dismissed all claims over which it has original

jurisdiction."

Id. § 1367(b)(3).

"[I]n the usual case in which

all federal-law claims are eliminated before trial, the balance of

factors to be considered under the [supplemental] jurisdiction

doctrine — judicial economy, convenience, fairness, and comity —

will point toward declining to exercise jurisdiction over the

remaining state-law claims." Carnegie-Mellon Univ. v. Cohill, 484
U.S. 343, 350 n.7 (1988).

For that reason, the Eleventh Circuit

"encourage[s] district courts to dismiss any remaining state
claims when, as here, the federal claims have been dismissed prior
to trial."

Raney v. Allstate Ins. Co., 370 F.3d 1086, 1089 (11th

Cir. 2004).

In its discretion, the Court determines that in the absence

of federal claims, the proposed state law claims are better left
20

to the state courts to resolve.

Because the additional state law

claims are still subject to dismissal absent a federal question,
the

court

declines

to

consider

those

claims.

Accordingly,

Plaintiff s motion for leave to file his third amended complaint
is denied for futility.

VII. Plaintiff's Motion for Leave to File Supplemental Pleading
Plaintiff seeks leave to include an additional party. Western

Surety Company (''Western"), and a claim for Western's alleged bad
faith refusal to settle.

(Mot. for Leave to File Suppl. Pleading,

Doc. 100; Proposed Suppl. Pleading,
determines that,

considering

Doc. 100-2.)

Plaintiff s action is

The Court
dismissed,

permitting Plaintiff leave to file the supplemental pleading is
futile.

See Smith v. Sec'y for Dep't of Corrs., 252 F. App'x 301,

303 (11th

Cir.

2007)

(finding

district

court did

not

abuse

discretion in refusing to consider supplemental pleadings "because

doing so would have been futile") (citing Hall v. United Ins. Co.
of Am., 367 F.3d 1255, 1262-63 (11th Cir. 2004)).

VIII. CONCLUSION

Pursuant to the foregoing, IT IS HEREBY ORDERED:

(1) Plaintiff's motion to withdraw his motion for partial

summary judgment (Doc. 60) is GRANTED.

21

Plaintiff's motion for

partial summary judgment (Doc. 55) is WITHDRAWN, and the Clerk is
directed to TERMINATE this motion.

(2) Plaintiff's motion for a hearing and for an extension of
time to file a brief related to his motion for partial summary

judgment (Doc. 54) is DENIED AS MOOT.

(3) Defendant McCord's motion to stay, or in the alternative,

strike Plaintiff's motion for partial summary judgment (Doc. 58)
is DENIED AS MOOT.

(4) Plaintiff's motion to strike (Doc. 73) is DENIED AS MOOT.

(5) Plaintiff's motion to lift the discovery stay (Doc. 71)
is DENIED AS MOOT.

(6) Plaintiff's motion for leave to file his third amended
complaint (Doc. 91) is DENIED.

(7) Plaintiff's motion for leave to file a supplemental
pleading (Doc. 100) is DENIED.

(8) Plaintiff's emergency motion for a temporary restraining
order (Doc. 67) is DENIED AS MOOT.

(9) Plaintiff's motion for a temporary restraining order
(Doc. 103) is DENIED AS MOOT.

(10) Defendants' motion to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6) (Doc. 88) is GRANTED, and Plaintiff's
case is DISMISSED.

The Clerk is directed to TERMINATE all other

pending motions, if any, and CLOSE this case.

22

ORDER ENTERED at Augusta, Georgi^,—±his

/ day of March,

2019.

J.

/chief JUt)GE

unitedTstates district court
SOUTHERN DISTRICT OF GEORGIA

23