Murphy v. City of Brunswick, Georgia et al

Filing 24

ORDER granting Defendant's 6 Motion to Dismiss for failure to state a claim; denying as moot Defendant's second 20 Motion to Dismiss; denying 22 Motion to Change Venue; denying 22 Motion to Disqualify Judge; and denying 22 Motion for Recusal. Signed by Chief Judge Lisa G. Wood on 7/22/2015. (csr)

N the Sniteb tate )itntt Court
for the boutbern Jitrut of 4eorgia
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Plaintiff,
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V.
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CITY OF BRUNSWICK, GEORGIA; and *
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OFFICER CHRISTINE R. DHEEL,
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Defendants.
YVONNE L. MURPHY,

CV 215-29

ORDER
On March 3, 2015, Plaintiff Yvonne L. Murphy filed this suit against Defendants, the
City of Brunswick, Georgia and Christine R. Dheel, an Officer of the Brunswick Police
Department. Presently before the Court are two motions to dismiss filed by Defendants: one for
failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), Dkt. No. 6, and one based
on Plaintiff's alleged failure to notify the Court of a change of her address. Dkt. No. 20. On July
16, 2015, Plaintiff moved for voluntary disqualification or recusal and for a change a venue.
Dkt. No. 22. Upon due consideration, Plaintiffs Motion, Dkt. No. 22, is DENIED. Defendant's
Motion to Dismiss for failure to state a claim, Dkt. No. 6, is GRANTED, and their second
Motion to Dismiss, Dkt. No. 20, is DENIED AS MOOT.
I. Background
On April 11, 2012, Plaintiff Yvonne L. Murphy contacted the Brunswick Police
Department to report that over $2,500 in cash was stolen out of her car. Dkt. No. 1, ¶ 6; Dkt. No.
1-1, pp. 1-3. According to the police report attached to Plaintiff's Complaint, Plaintiff told the
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police of her belief that a man named Carl Christ took the money from her car while she was at
the residence of Kathy Stanley in Brunswick, Georgia. Dkt. No. 1-1, pp. 2-3. Lieutenant
Christine Dheel is shown as the Reporting Officer on the police report. Dkt. No. 1-1, p. 3.
Plaintiff's primary allegation in this suit is that Defendants never investigated the crime
committed against her on April 11, 2012. While Plaintiff makes additional allegations, all of
them relate back to this central allegation. One wrong Plaintiff perceives is in the police report
itself. On the top of the second page, a Comment states, "Vehicle left at owners [sic] request, Ga
303 and Ga 520. Also had owner sign vehicle impound waiver[.]" Dkt. No. 1-1, p. 2. Plaintiff
alleges that these facts were substituted from a "falsified police report" describing an incident in
2009, and Plaintiff suggests that this new report is thus a false police report because of the
presence of this incorrect information. Dkt. No. 1, ¶ 7. According to Plaintiff, the earlier
incident involved the Glynn County Sheriff's Department, so Plaintiff alleges that it was wrong
for the Brunswick Police Department to access a Glynn County database to obtain that
information. Dkt. No. 1, ¶ 14 ("Defendant Dheel had accessed the data base [sic] of the Glynn
County sheriff's department [sic], which is not the jurisdiction of the city police."). Plaintiff
alleges that Defendant Dheel "sought to investigate Plaintiff and thus discriminated against her
by ignoring a complaint of a criminal act in person." Dkt. No. 1, 110.
On December 4, 2012, Plaintiff filed a Citizen's Complaint with the Brunswick Police
Department. Dkt. No. 1-2. A representative from the Police Department's Office of Internal
Affairs, Lieutenant Russell D. Berger, responded to Plaintiff in a letter dated December 28, 2012.
Dkt. No. 1-3.' The letter explained that Plaintiff's case was not selected for investigation based
on several factors, including an upsurge in violent crimes and a manpower shortage in the unit
'In describing the police report, the letter stated that the report was filed on May 10, 2012. Though not in the
Complaint, Plaintiff takes issue with this error in later briefs. See Dkt. No. 8, 1 5 ("In a fraud, Defendant [sic] allege
that Plaintiff's Internal Affairs report was dated May 10, 2012").
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responsible for criminal investigations. The letter concluded by stating that the criminal
investigations unit would review Plaintiff case again, and Lieutenant Berger would let Plaintiff
know if her case was going to be assigned to a detective. Dkt. No. 1-3.
Plaintiff alleges that she contacted "Chief Green" of the Brunswick Police Department
from January 8, 2013 to November 14, 2013 "warning the city of claims against it[,]" but he
never responded. Dkt. No 1, ¶ 9. Plaintiff further alleges that she warned "Brunswick City Hall
of potential civil rights complaints," and the City also did not respond. Id. 2
Plaintiff makes an assortment of other related allegations. She asserts, for example, that
there was a "policy of inaction that constituted the functional equivalent of a decision by the city
itself to violate the U.S. Constitution" and that the City "advised Defendant Dheel to ignore
Plaintiff." Dkt. No. 1, ¶J 1, 12. Plaintiff broadly asserts that Defendants have engaged in
"disparate treatment, discrimination, bias and prejudice[.]" Dkt. No. 1, ¶ 12. Additionally,
though not in the Complaint, Plaintiff alleges that the City has failed to train its police officers,
leading to the deprivation of her constitutional rights. Dkt. No. 8, p. 7.
Plaintiff also makes allegations that Defendants falsified yearly statistical crime data
submitted to federal authorities. Dkt. No. 1, ¶ 1. Plaintiff attached to her Complaint a document
which appears to show different crimes broken down by month, and Plaintiff describes this as a
document submitted by Defendants to the Federal Bureau of Investigation. Dkt. No. 1, 113.
"Plaintiff believes her police record was not counted, but dismissed and destroyed[.]" J3

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Plaintiff attached copies of two faxes from January 2013 and a letter from November 2013 to her Response to
Defendants' Motion to Dismiss. Dkt. No. 8-1, pp. 2-5. In the first two faxes, Plaintiff suggested that she was
prepared to bring a federal lawsuit. The third letter, sent to the Brunswick Police Department, had the subject,
"Notice of Intent to Sue (Civil Rights Violations)" and stated, "you are hereby notified that a suit is put forth[.1"
Dkt. No. 8-1, p. 5.
Plaintiff takes issue with the fact that Berger's letter to her cited violent crimes, including homicides, as one of the
reasons her report was not investigated, when the document she attached to her Complaint showed there were no
homicides from January to November of 2012. Dkt. No. 8, ¶ 6. It is not clear to the Court where the attachment to
the Complaint is from or what it shows—there is no city name or identifying information anywhere on it. Dkt, No.
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Plaintiff asserts that Defendants have violated her rights under the United States
Constitution and the Georgia Constitution. 4 Plaintiff asserts claims under 42 U.S.C. § 1983 for
violations of her Fourteenth Amendment due process and equal protection rights. Plaintiff
claims "$100,000.000.00 [sic] in compensatory/actual and punitive damages." Dkt. No. 1, ¶ 15.
II. Motion for Voluntary Disqualification and Recusal and Motion for a Change of
Venue (Dkt. No. 22)
Plaintiff moves for the disqualification and recusal of the undersigned and for a change of
venue of this case. Under 28 U.S.C. § 455(a), "[a]y justice, judge, or magistrate judge of the
United States shall disqualify himself in any proceeding in which his impartiality might
reasonably be questioned." The test for recusal under this provision is "whether an objective,
disinterested, lay observer fully informed of the facts underlying the grounds on which recusal
was sought would entertain a significant doubt about the judge's impartiality[.}" United States v.
Patti, 337 F.3d 1317, 1321 (11th Cir. 2003) (citing Parker v. Connors Steel Co., 855 F.2d 1510,
1524 (11th Cir. 1988)).
In support of her request, Plaintiff cites her dislike and distrust of this Court. Plaintiff
expresses dismay about the fact that Defendants filed two motions before being served, and the
Court ruled against her on one of those motions, before Defendants were formally served with
the Complaint. To the extent Plaintiff takes issue with rulings that have not come out in her
favor, these do not constitute grounds for disqualification. See Liteky v. United States, 510 U.S.
540, 554 (1994). "[J]udicial rulings alone almost never constitute a valid basis for a bias or

1-3, P. 3. Nor is it clear why Plaintiff thinks the "TOTAL" number, on a table labeled "Actual Number of Offenses"
represents the number of cases actually investigated rather than the number of offenses reported, or why she thinks
her case is not included. See Dkt. No. 8, P. 7.
' While Plaintiff references the Georgia Constitution in her Complaint, she is adamant in her briefs that she is not
asserting state law claims. Dkt. No. 8, 112 ("Plaintiff did not file a state claim against the Defendants in this
court.").
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partiality motion." Id .. at 555 (citing United States v. Grinnell Corp., 384 U.S. 563, 583 (1966));
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see also Hamm v. Members of Bd. of Regents of State of Fla., 708 F.2d 647, 651 (11th Cir.
1983) ("Neither a trial judge's comments on lack of evidence, rulings adverse to a party, nor
friction between the court and counsel constitute pervasive bias") (citations omitted). To the
extent Plaintiff complains about the fact that anything happened in the case before Defendants
were formally served, as was later shown by Defendants, Plaintiff herself faxed the Complaint to
Defendants, putting them on notice of the suit against them. Dkt. No. 16. Additionally, the
service of process rules are designed to ensure that defendants have notice of the suits filed
against them. If defendants find out about a suit without formal service and choose not to object
to the fact that there has not been formal service, that is their choice, and they can proceed to file
other motions, as the Defendants did in this case. This is not an unusual occurrence. See Pardazi
v. Cullman Med. Ctr., 896 F.2d 1313, 1317 (11th Cir. 1990) ("a party is deemed to have waived
any objection to personal jurisdiction or service of process if the party makes a pre-answer
motion under Rule 12 and fails to include such objections in that motion.") (citations omitted).
An objective observer viewing the facts of this case would see that the Court's conduct
has been normal and impartial. As for Plaintiff's change of venue request, Plaintiff chose to
bring her case here, and she has not cited any legal or factual basis for that request apart from the
same reasons given for her recusal request. Because an objective lay observer would not doubt
the undersigned's impartiality in this case, Plaintiff's motion is DENIED.
III. Motion to Dismiss (Dkt. No. 6)
a. Legal Standard
When ruling on a motion to dismiss, the Court accepts as true the facts as set forth in the
complaint and draws all reasonable inferences in the plaintiffs favor. Randall v. Scott, 610 F.3d

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701, 705 (11th Cir. 2010). The complaint must contain factual allegations sufficient to raise a
right to relief above the speculative level, and at a minimum should "contain either direct or
inferential allegations respecting all the material elements necessary to sustain a recovery under
some viable legal theory." Fin. Sec. Assurance. Inc. v. Stephens. Inc., 500 F.3d 1276, 1282-83
(11th Cir. 2007) (per curiam) (quoting Roe v. Aware Woman Ctr. for Choice. Inc., 253 F.3d 678,
683 (11th Cir. 2001)). Plaintiffs must be able to "nudge[] their claims across the line from
conceivable to plausible" to avoid dismissal. Bell Ad. Corp. v. Twombly, 550 U.S. 544 (2007).
"And to nudge the claim across the line the complaint must contain 'more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do." Jacobs
v. Tempur-Pedic Int'l, Inc., 626 F.3d 1327, 1333 (11th Cir. 2010) (quoting Twombly, 550 U.S.
at 555).
b. Analysis
Defendants assert that Plaintiff's constitutional claims, brought under 42 U.S.C. § 1983,
are time-barred. Plaintiff disputes this by stating that her interactions with Defendants "are
continuous with a letter to city hall dated January 14, 2013. Plaintiff's claims are sufficiently
related and thereby constitute a continuing pattern of wrongful conduct by Defendants." Dkt.
No. 8, 11 3.
Plaintiff's Response to Defendants' Motion to Dismiss revealed some confusion about
the use of the Georgia statute of limitations for personal injury claims in this suit, so the Court
will attempt to clarify that at this time. See Dkt. No. 8, ¶ 5. Plaintiff has brought claims based
on alleged violations of her constitutional rights and seeks money damages, and she has cited 42
U.S.C. § 1983 as the statutory vehicle for her claims. Because 42 U.S.C. § 1983 does not have a
single statute of limitations that applies to the whole country, the federal court in which the suit

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is brought uses the statute of limitations for personal injury suits of the state in which the court is
located. The United States Supreme Court has directed the lower federal courts to take this path.
See Owens v. Okure, 488 U.S. 235, 236 (1989) ("courts entertaining claims brought under 42
U.S.C. § 1983 should borrow the state statute of limitations for personal injury actions."). Thus,
even though Plaintiff's claims are for alleged violations of her constitutional rights, the statute of
limitations used is that of Georgia personal injury claims, or two years. O.C.G.A. § 9-3-33
("actions for injuries to the person shall be brought within two years after the right of action
accrues"). Thus, in all § 1983 actions brought in Georgia, the statute of limitations is two years.
Brown v. Ga. Dep't of Revenue, 881 F.2d 1018, 1022 n. 10 (citations omitted).
Defendants argue that the statute of limitations on Plaintiff's claims began to run on the
date of her alleged injury, or the date she reported the crime to the police, April 11, 2012. If this
were true, the statute of limitations would have expired roughly 11 months before Plaintiff filed
this suit. However, the statute of limitations begins to run when the facts which would support a
cause of action are apparent or should be apparent to a person with a reasonably prudent regard
for his rights. McNair v. Allen, 515 F.3d 1168, 1173 (11th Cir. 2008). In January of 2013,
Plaintiff, in her own words, warned Defendants of her claims. Dkt. No. 1, ¶ 9. Generously
assuming the statute of limitations began to run on that late date, Plaintiff would have needed to
file her suit by January of 2015 in order to comply with her statute of limitations.
As Plaintiff did not file her Complaint in this suit until March 3, 2015, over two years
after she first warned Defendants of her claims, the statute of limitations on Plaintiff's claims has
expired. Plaintiff's claims are dismissed, and Defendants' Motion to Dismiss is GRANTED.
IV. Conclusion

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In accordance with this Order, Plaintiff's Motion for Voluntary Disqualification and
Recusal and for a Change of Venue, Dkt. No. 22, is DENIED. Defendants' Motion to Dismiss,
Dkt. No. 6, is GRANTED, and Defendants' Motion to Dismiss for Failure to Notify Court of
Change in Address is DENIED AS MOOT.

SO ORDERED, this 22ND day of July, 2015.

LISA GODBEY OD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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