Smith et al v. Roundtree et al

Filing 31

ORDER GRANTING IN PART because the Smiths' complaint failed to set forth a claim under the Fifth, Sixth, and fourteenth Amendments, and DENYING IN PART because the Smiths adequately set forth an unlawful seizure claim pursuant to the Fourth Amen dment re Roundtree's 9 Motion to Dismiss; DENYING Smiths' 11 Motion for Default Judgment for their failure to properly serve Darien with notice of the suit; GRANTING Darien's 20 Motion to Dismiss because the Smiths failed to properly serve process and § 1983 bars claims based on a theory of respondent superior. The Clerk SHALL TERMINATE Darien as a Defendant. Signed by Chief Judge Lisa G. Wood on 10/14/2015. (ca)

3n the wititeb otatto flttritt Court
for the boutbern Jitrict of deoria
runtuitk flthiion
RUSSELL V. SMITH; and
LYNETTE SMITH,
Plaintiffs,
CV 215-04
V.

NICK ROtJNDTREE; ARCHIE DAVIS;
ANTHONY BROWN; and THE CITY OF
DARIEN,
Defendants.

ORDER

Plaintiffs Russell and Lynette Smith ("the Smiths") bring
suit against Defendants for illegally seizing their property
pursuant to a court order. The Smiths allege that the court
order never existed and that Defendants violated their Fourth,
Fifth, Sixth, and Fourteenth Amendment rights. Defendants Nick

Roundtree ("Roundtree") and the City of Darien ("Darien") have
filed Motions to Dismiss, primarily arguing that the Smiths'
Complaint fails to state a claim for relief.' For their part,
the Smiths have filed a Motion for Default as to Darien,

contending that Darien failed to file a timely response to their
- The Court notes that Defendants Anthony Brown ("Brown") and Archie Davis
i:") have only filed Answers to the Smiths' Complaint. Dkt. Nos. 19,
21.
AC) 72.\
(Rex.

complaint. (Dkt. No. 11). The Court held a hearing on these
Motions on October 5, 2015.
For the reasons set forth below, Roundtree's Motion to
Dismiss is GRANTED IN PART AND DENIED IN PART

(Dkt. No. 9);

Darien's Motion to Dismiss is GRANTED (Dkt. No. 20); and
Plaintiffs' Motion for Default is DENIED (Dkt. No. 11).
FACTUAL BACKGROUND

The following facts are taken solely from the Smiths'
Complaint. Dkt. No. 1 ("Compi."), pp. 1-4. The Smiths are
residents of South Carolina. Id. at ¶ 2. Three of the
Defendants, who are employees of Darien, id. at ¶ 9, reside in
various Georgia counties: Roundtree is a resident of Glynn
County, Georgia, Id. at ¶ 3; Davis is a resident of Floyd
County, Georgia, Id. at J 4; and Brown is a resident of McIntosh
County, Georgia, id. at ¶ 5. The final Defendant, Darien, is a
municipal corporation located in McIntosh County, Georgia. Id.
at ¶ 6.
The Smiths allege that on April 8, 2013, Defendants
Roundtree, Brown and Davis were "officers of the CITY OF
DARIEN." Id. at ¶ 9 (emphasis in original). The Complaint
further alleges that the officers threatened to arrest the
Smiths unless they turned over property to Debra Newman
("Newman") . Id. at ¶ 9. The Smiths allege that the officers
represented that a court order required the Smiths to turn over
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the property, but, in actuality, no such court order existed.
Id. at ¶j 9-10.
The Smiths bring multiple claims against Defendants
alleging violations of the Fourth, Fifth, Sixth and Fourteenth
Amendments to the United States Constitution as to all
Defendants. Id. at ¶ 12. The only specific allegation against
Darien is contained in paragraph fourteen. That paragraph
alleges that "the Defendant CITY OF DARIEN is liable to the
Plaintiffs for the conduct of NICK ROUNDTREE, ARCHIE DAVIS AND
ANTHONY BROWN." Id. at ¶ 14 (emphasis in original).
DISCUSSION
I.

Motions to Dismiss
A.

Rule 12 (b) (6) of the Federal Rules of Civil Procedure
as to Roundtree

Roundtree challenges the Smiths' Complaint under Rule
12(b) (6) of the Federal Rules of Civil Procedure. Dkt. No. 9-1,
pp. 1-4. In support of his Motion to Dismiss, Roundtree argues
as follows: (1) that the Smiths' Complaint fails to set forth
"well-pleaded facts" supporting an inference of misconduct on
his part, id. at p. 3; and (2) that he is immune from suit
because, as a Darien police officer, he is entitled to qualified
immunity, dkt. no. 17-1, p. 3. The Smiths respond by arguing
that (1) there are sufficient facts to support their Fourth

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Amendment claim, dkt. no. 12, P. 6.; and (2) qualified immunity
does not protect Roundtree, id.
When ruling on a motion to dismiss brought pursuant to Rule
12 (b) (6), a district court must accept as true the facts that
are set forth in the complaint and draw all reasonable
inferences in the plaintiff's favor. Randall v. Scott, 610 F.3d
701, 705 (11th Cir. 2010). Although a complaint need not
contain detailed factual allegations, it must contain sufficient
factual material "to raise a right to relief above the
speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)
As an initial matter, at the October 5, 2015, Motions
Hearing, counsel for the Smiths conceded that the only viable
claim set forth in the Complaint is a Fourth Amendment unlawful
seizure claim. Mot. Hr'g Tr., 11:23-12:19, Oct. 5, 2015.
The Fourth Amendment claim lodged against Roundtree is
sufficient to withstand his Motion to Dismiss. The allegation
in the Complaint—that Roundtree falsely informed the Smiths of a
(non-existent) court order and threatened to arrest them if they
did not surrender the property—is enough to raise the allegation
of unlawful seizure "above the speculative level." Compi., ¶ 9;
see also Bell Atl. Corp., 550 U.S. at 555.

Indeed, the

Complaint alleges that (1) Roundtree ordered the Smiths to
relinquish property in their possession, compi., ¶ 9; (2) the
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Smiths relinquished said property, id.; (3) the Smiths faced
imminent arrest if they failed to comply with Newman's court
order, id.; (4) the property did not belong to Newman, Id. at ¶
11; and (5) the court order did not exist, Id. at ¶ 10. These
are specific allegations of fact that, if proven, could
establish that Roundtree wrongfully and unlawfully seized the
Smiths' property, in violation of their Fourth Amendment rights.
As to the qualified immunity defense, the defense exists to
offer "complete protection for government officials sued in
their individuals capacities if their conduct 'does not violate
clearly established statutory or constitutional rights of which
a reasonable person would have known.'" Vinyard v. Wilson, 311
F.3d 1340, 1346 (11th Cir. 2002) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)) . When properly applied, the doctrine
protects "all but the plainly incompetent or one who is
knowingly violating the federal law." Id. (quoting Lee v.
Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)).
As an initial matter, a public official must prove that he
was acting within the scope of his discretionary authority at

the time the alleged wrongful acts occurred. Terrell v. Smith,
668 F.3d 1244, 1250 (11th Cir. 2012) . Here, given that the
Court must accept all facts in the Complaint as true, Roundtree
seized the Smiths' property while on duty as a Darien officer.
Thus Roundtree acted in his discretionary capacity.
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The burden then shifts to the plaintiff to show that
qualified immunity does not apply. Id. To prove that qualified
immunity does not apply, a court engages in a two-step inquiry,
assessing: (1) whether the plaintiff alleged facts to establish
that the officers violated constitutional rights; and (2)
whether the right was clearly established. Pearson v. Callahan,
555

U.S. 223, 232 (2009). 2 A plaintiff may show that a right was

clearly established by using any one of the following three
methods: (1) highlighting a "materially similar case," decided
prior to the actions of the officers in the instant case; (2)
pointing to a broad, clearly established principle that controls
the particular facts at hand; or (3) showing that the conduct
was so obviously unconstitutional that no prior case law need be
established. Mercado v. City of Orlando, 407 F.3d 1152, 1159
(11th Cir. 2005)
Here, the facts as pleaded in the Complaint, if proven,
could present a clear violation of the Smiths' Fourth Amendment
rights. The right to be free from unlawful seizures is a
clearly established right and Roundtree cannot shield himself
from liability with the defense of qualified immunity. The law
is clearly established that police officers cannot force
citizens to give up property based on a non-existent court order
and the threat of arrest. Indeed, it is obvious that
Federal courts have discretion in deciding which prong to address first.
See Pearson, 555 U.S. at 236.
AO 72
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Roundtree's conduct, given the facts as pleaded in the Smiths'
Complaint, violated the Smiths' Fourth Amendment rights. See
Mercado, 407 F.3d at 1159. It is therefore apparent that there
are sufficient facts to set forth a claim under the Fourth
Amendment, and that Roundtree is not entitled to dismissal at
this stage. Accordingly, Roundtree's Motion to Dismiss is
hereby denied as to the Fourth Amendment claims. As is plain
from the record and confirmed by the Smiths' counsel, the
Smiths' claims pursuant to the Fifth, Sixth, and Fourteenth
Amendments are due to be dismissed.
B.

Rule 12(b) (5) of the Federal Rules of Civil Procedure
as to Darien

Darien challenges the Smiths' Complaint on procedural
grounds, arguing that it was not properly served pursuant to
Rule 4(,j)(2) of the Federal Rules of Civil Procedure. Dkt. No.
20, pp. 3-7.
The Federal Rules of Civil Procedure allow a party to seek
dismissal of a complaint for insufficient service of process.
Fed. R. Civ. P. 12(b) (5). Courts apply the same analysis to a
motion to dismiss for insufficient service of process under Rule
12(b) (5) as they would for a motion to dismiss for lack of
personal jurisdiction under Rule 12 (b) (2). See Carrier v.
Jordan, 714 F. Supp. 2d 1204, 1211 (S.D. Ga. 2008); see also
Baragona v. Kuwait Golf Link Transp. Co., 594 F.3d 852, 855

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(11th Cir. 2010) (per curiam) (noting that proper service of
process is one of the components of personal jurisdiction)
As an initial matter, the Plaintiff to an action is
responsible for having the summons and complaint served on the
defendant within 120 days after filing the complaint. See Fed.
R. Civ. P. 4(m); Fed. R. Civ. P. (4)(c)(1). Service is
accomplished when a person, who is at least eighteen years old
and who is not a party to the action, serves the summons and
complaint in the proper manner. Fed. R. Civ. P. 4(c). The
Federal Rules provide that a plaintiff may serve process on a
state or local government, like Darien, by "(A) delivering a
copy of the summons and of the complaint to its chief executive
officer; or (B) serving a copy of each in the manner prescribed
by that state's law for serving a summons or like process on
such a defendant." Fed. R. Civ. P. 4(j) (2).
Georgia law provides that only the following persons may
serve process:
(1) The Sheriff or the county where the
action is brought or where the defendant is
found or by such sheriff's deputy; (2) The
marshal or sheriff of the court or by such
official's deputy; (3) Any citizen of the
United States specially appointed by the
court for that purpose; (4) A person who is
not a party, not younger than 18 years of
age, and has been appointed by the court to
serve process or as a permanent process
server; or (5) A certified process server
was provided in Code Section 9-11-4.1.

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I
I

O.C.G.A. § 9-11-4(c). Georgia law also sets forth a list of
persons who may accept service on behalf of a municipal
corporation. Pursuant to Georgia law, a party may serve a
county, municipality, city or town by serving "the chairman of
the board of commissioners, president of the council of
trustees, mayor or city manager of the city, or to an agent
authorized by appointment to receive service of process." Id.
The burden is on the plaintiff to establish the validity of
service of process on the defendant. Lowdon PTY Ltd. v.
Westminster Ceramics, LLC, 534 F. Supp. 2d 1354, 1360 (N.D. Ga.
2008)
There are multiple problems with the Smiths' attempted
service on Darien. First, counsel for the Smiths served
Priscilla Taylor ("Taylor"), the City Clerk of Darien. Dkt. No.
4, p. 4. Rule 4(c) of the Federal Rules of Civil Procedure
states that service must be accomplished "in the manner
prescribed by that state's law": Georgia law clearly prohibits
an attorney from serving process. See O.C.G.A. § 9-11-4(c).
Second, Taylor is not an authorized person to accept process on
behalf of Darien. it is undisputed, that as the City Clerk of
Darien, Taylor is not "the chairman of the board of
commissioners, president of the council of trustees, mayor or
city manager of the city, or an agent authorized by appointment
to receive service of process"; she also is not Darien's Chief
9

Executive Officer. O.C.G.A. § 9-11-4(e) (5); see also Fed. R.
Civ. P. 4(j) (2)(A). A party may only serve a clerk if the party
being sued is any other public body or organization, other than
a county, municipality, city or town. See O.C.G.A. § 9-114 (e) (5).

Given that Darien is a municipal corporation, it was

thus ineffective for Taylor to be served.
C.

Rule 12(b) (6) of the Federal Rules of Civil Procedure
as to Darien

Notwithstanding the above, the Smiths allege that Darien is
liable for the actions of its employees, the police officer
defendants.

Compl., ¶ 14. Darien responds by arguing that the

complaint alleges facts sufficient to support a respondeat

superior claim under 42 U.S.C. § 1983. Dkt. No. 20, pp. 7-8.
Darien notes, however, that respondeat superior liability under
§ 1983 is not permitted. Id. At the October 5, 2015, Motions
Hearing, the Smiths conceded that § 1983 barred recovery for
their claim based on respondeat superior.

Mot. Hr'g Tr., 19:16-

20:14, Oct. 5, 2015. The Smiths also conceded that their
Complaint did not set forth any other viable claims, including a
claim for conversion. Id. As a result, Darien is entitled to
be dismissed from this case.
II. Motion for Default
The Smiths filed a Motion for Default, arguing that since
Darien failed to timely respond to their Complaint, Darien is in

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default. Dkt. No. 11,

PP.

1-2. Pursuant to Rule 55 of the

Federal Rules of Civil Procedure, default occurs "when a party
against whom a judgment for affirmative relief is sought has
failed to plead or otherwise defend." A party, however, cannot
be in default if the party was never served. See, e.g., In re
Worldwide Web Sys., Inc., 328 F.3d 1291, 1299 (11th Cir. 2003)
(citing Varnes v. Local 91, Glass Bottle Blowers Ass'n, 674 F.2d
1365, 1368 (11th Cir.

1982) ("Generally where service of process

is insufficient, the court has no power to render judgment and
the judgment is void.")). Given that the Smiths failed to
properly effectuate service, both by their choice of process
server and their choice of whom to serve, see supra subpart
1(B), the Smiths' Motion for Default must be denied.
CONCLUSION
Darien's Motion to Dismiss

(Dkt. No. 20) is GRANTED because

the Smiths failed to properly serve process and § 1983 bars
claims based on a theory of respondeat superior.
Motion to Dismiss (Dkt. No. 9)

Roundtree's

is GRANTED IN PART because the

Smiths' complaint failed to set forth a claim under the Fifth,
Sixth, and Fourteenth Amendments. Roundtree's Motion to Dismiss
is DENIED IN PART because the Smiths adequately set forth an
unlawful seizure claim pursuant to the Fourth Amendment. The
Smiths' Motion for Default (Dkt. No. 11)

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is DENIED for their

failure to properly serve Darien with notice of the suit. The
Clerk of Court SHALL TERMINATE Darien as a Defendant.
SO ORDERED, this 14TH day of October, 2015.

LISA GODEEY OOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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