Clifton v. Jeff Davis County, Georgia et al

Filing 85

ORDER granting 56 Motion for Summary Judgment by Jeff Davis County, Ray Wooten, Hugh Brantley, Wanda Marchant, Wayne Hall, Carla Roberts Powell, and Sheriff Preston Bohannon. The Court DIRECTS the Clerk of Court to enter the appropriate judgment of dismissal and to CLOSE this case. Signed by District Judge R. Stan Baker on 6/5/19. (jrb)

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

TYLER BRENT CLIFTON,
Plaintiff,

CIVIL ACTION NO.: 2:16-cv-108

v.
JEFF DAVIS COUNTY, GEORGIA; and
RAY WOOTEN, HUGH BRANTLEY,
WANDA MARCHANT, WAYNE HALL,
CARLA ROBERTS POWELL, and SHERIFF
PRESTON BOHANNON, Individually,
Defendants.

ORDER
Presently before the Court is Defendants’ Motion for Summary Judgment, (doc. 56). 1
This case arises out of a series of events in Jeff Davis County, Georgia, that resulted in the
criminal indictment and prosecution of Plaintiff Tyler Brent Clifton.

Plaintiff asserts that

Defendant Jeff Davis County and Defendants Ray Wooten, Hugh Brantley, Wanda Marchant,
Wayne Hall, Carla Roberts Powell, and Sheriff Preston Bohannon, in their individual capacities,
conspired to maliciously prosecute him in violation of federal and Georgia law. (Doc. 43, pp. 2–
3, 10–12.) Based on the undisputed facts, Plaintiff has failed to support any of his claims with
sufficient evidence to survive summary judgment. Moreover, even if a genuine dispute of
material fact existed as to the merits of Plaintiff’s claims, Defendants would be shielded from

1

Plaintiff also asserted claims against the Jeff Davis County Board of Commissioners, the Jeff Davis
County Sheriff’s Department, and Defendants Wooten, Brantley, Marchant, Hall, Powell, and Bohannon
in their official capacities. (Doc. 1.) However, the Court granted a Motion to Dismiss all claims against
the Sheriff’s Department on April 6, 2017, (doc. 17), and granted a separate Motion to Dismiss the Board
of Commissioners and the individual Defendants in their official capacities on July 17, 2017, (doc. 40).

Plaintiff’s federal claims by qualified immunity and from his state law claims by official
immunity.

Accordingly, the Court GRANTS Defendants’ Motion for Summary Judgment,

(doc. 56).

The Court DIRECTS the Clerk of Court to enter the appropriate judgment of

dismissal and to CLOSE this case.
BACKGROUND
I.

Procedural History
Plaintiff filed this suit in July 2016, (doc. 1), and subsequently filed an Amended

Complaint, (doc. 43), alleging violations of his Fourth Amendment rights pursuant to 42 U.S.C.
§ 1983 and violations of Georgia law. (Id.) Specifically, Plaintiff alleges that Defendants
“reached an understanding to arrest and prosecute” him after he installed a water line under a
county road, (id. at p. 11), and that as a result, Defendants are liable for: malicious prosecution in
violation of the Fourth Amendment and Georgia law (Counts I, III); conspiring to violate his
constitutional rights (Count II); intentional infliction of emotional distress in violation of Georgia
law (Count IV); attorney’s fees under 42 U.S.C. § 1988 and Georgia law (Count V); and punitive
damages under § 1983 and Georgia law (Count V). (Id. at pp. 10–12.) Plaintiff asserts these
claims against Defendant Jeff Davis County (hereinafter, the “County”) and Defendants Ray
Wooten, Hugh Brantley, Wanda Marchant, Wayne Hall, Carla Roberts Powell, and Preston
Bohannon in their individual capacities. (Id. at pp. 2–3.) At all times relevant to this action,
Defendant Wooten served as the Jeff Davis County Board of Commissioners Chairman,
Defendants Marchant and Hall served as commissioners, Defendant Powell was employed as the
County Attorney, and Defendant Bohannon was employed as the County Sheriff. (See generally
Docs. 56, 61.) While Defendant Brantley was not serving as a commissioner at the time Plaintiff

2

installed his water line, he had served as a commissioner in the past.2 (Doc. 61-10; Doc. 80, p.
6.) Defendants filed this Motion for Summary Judgment on December 18, 2017. (Doc. 56).
Plaintiff filed a Response, (docs. 61, 62), and Defendants filed a Reply, (doc. 68). 3 In an Order
issued on October 26, 2018, the Court ordered the parties to file supplemental briefs on the issues
of qualified and official immunity. Defendants filed a supplemental brief, (doc. 77), Plaintiff
filed a Response, (doc. 80), and Defendants filed a Reply, (doc. 81). Based on factual clarity
provided by these supplemental briefs, the Court has determined that Defendants’ Motion is due
to be granted on the merits, regardless of whether immunity protects any of the Defendants.
However, the Court cites to these documents as needed for factual assertions.

2

In his Response to Defendants’ supplemental brief on qualified immunity, Plaintiff “conceded” his
claims against Defendant Brantley. (Doc. 81, p. 15 n.3.) Plaintiff, however, has not moved to dismiss
Brantley as a Defendant pursuant to the Federal Rules of Civil Procedure and the Local Rules. As a
result, the Court’s rulings in favor of the Defendants in this Order apply to the claims asserted against
Defendant Brantley.

3

On April 11, 2019, Plaintiff’s counsel filed a “Supplemental Brief in Response to Defendants’ Motion
for Summary Judgment.” (Doc. 82.) In this document, Plaintiff declares that he made “a recent
discovery” that he wishes “to bring [] to the Court’s attention as the Court considers Defendants’ Motion
for Summary Judgment.” (Id. at p. 1.) In this brief—filed over a year after the expiration of Plaintiff’s
deadline for filing a Reply brief—Plaintiff presents new evidence that purportedly supports his claims.
(Id.) However, he neglects to offer any basis for the Court to consider the evidence, despite the filing’s
untimeliness. “[W]here a party fails to move for an extension or seek leave of the Court to file additional
evidentiary submissions with its reply brief, and where a party fails to show excusable neglect due to
newly-discovered evidence, courts routinely decline to consider the untimely filings.” Garner v. Acuity
Brands Lighting, Inc., No. 1:16-CV-0365-LMM-JSA, 2017 WL 10753617, at *14 (N.D. Ga. July 6,
2017), report and recommendation adopted, No. 1:16-CV-0365-LMM-JSA, 2017 WL 10754455 (N.D.
Ga. July 24, 2017); see also Mosley v. MeriStar Mgmt. Co., LLC, 137 F. App’x 248, 250 (11th Cir. 2005)
(per curiam) (district court did not abuse its discretion in striking untimely filing when filing was
unaccompanied by showing of excusable neglect). “Deadlines are not meant to be aspirational,” and the
Eleventh Circuit Court of Appeals has stated that counsel should not feel that, “as long as counsel tries to
act, he has carte blanche permission to perform when he desires. A district court must be able to exercise
its managerial power to maintain control over its docket.” Young v. City of Palm Bay, Fla., 358 F.3d
859, 864 (11th Cir. 2004). Accordingly, the Court declines to consider Plaintiff’s Supplemental Brief in
ruling on Defendants’ Motion. However, even if the Court did consider Plaintiff’s “new evidence,” it
would not alter the Court’s analysis. See note 10, infra.

3

II.

Factual Background
The events giving rise to this action took place over a three-year period. In May 2013,

Plaintiff appeared before the Jeff Davis County Board of Commissioners (hereinafter, the
“Board”) and sought permission to install a water line under a public road. (Doc. 62, p. 1.) The
line was installed several days later, and in April of 2014, Plaintiff was indicted on criminal
charges in connection with that installation. (Id., at pp. 3, 10.) The charges were disposed of via
entry of nolle prosequi in April 2016. (Id. at pp. 1, 11.) The crux of Plaintiff’s claims in this
lawsuit is that the Defendants, based on feelings of ill will, 4 prompted and/or participated in a
baseless criminal investigation regarding his installation of the water line which resulted in his
indictment and prosecution. (See generally id. at pp. 1–11; doc. 61-20, p. 2.) The relevant
details are discussed below.
A.

The City Hall Meeting

On May 20, 2013, the Board held a meeting, (doc. 62, pp. 1, 11), which was recorded and
documented in written minutes. 5 (Doc. 57-7; Id. (audio).) Plaintiff’s request to install a water
pipe under Lonnie Johnson Road, a road which traverses two of his properties, was on the
Board’s agenda.
4

(Id. (audio) at 27:44.)

Prior to addressing Plaintiff specifically, one

In his Amended Complaint and Response, Plaintiff emphasizes his previous conflicts with officials in
Jeff Davis County. (Doc. 43, pp. 3–4; see generally doc. 61, pp. 3–4.) At some point prior to 2012,
Plaintiff and another individual investigated the County’s use of various public funds by submitting a
relatively large number of records requests. (Doc. 43, p. 3.) In July 2012, the Board discussed whether to
issue a restraining order restricting Plaintiff’s ability to enter County offices and demand “that each
county office produce documents immediately.” (Doc. 57-2, p. 59.) Although it was never issued, the
restraining order would not have prevented Plaintiff from making records requests. (Id.) Plaintiff
contends these events provide evidence of malice, an element of his malicious prosecution claims. (See
doc. 61, p. 25; doc. 80, p. 4.) However, as discussed herein, Plaintiff’s malicious prosecution claims fail
on other grounds; as such, these events are not material to the Court’s analysis.
5

The recording has been reviewed and taken into consideration by the Court. Plaintiff (during his
deposition) conceded that, should any briefing or statement of fact in this case contradict the recording,
the audio recording should control. (Doc. 61-4, p. 7.)

4

commissioner stated that he had discussed Plaintiff’s request with three other commissioners and
asked Plaintiff whether he wished to “cut or bore” the water line. 6 (Id. at 27:58–28:13.) Plaintiff
responded that either option was fine. (Id. at 28:13.) The commissioner then summarized the
concerns that were raised during his discussions with the other commissioners. (Id. at 28:15–
29:40.) First, he noted that the County had previously dealt with a “cut” pipe located near
Plaintiff’s pond and explained that the pipe “blew out” after it was clogged with concrete. (Id. at
28:23–49.) The commissioner then told Plaintiff, “every one of [the commissioners] says that if
you do bore it, you need to hire someone to do it and it needs to be double-sleeved.” (Id.)
About a minute later, someone queried about who would be responsible for future
damage if such damage should occur from Plaintiff’s project. (Id. at 29:45–47.) In response,
another commissioner explained, “That’s up to y’all; if you want him to be responsible, the
property owner, I think you’d be well to get it in writing that you’d allow him to place an inch
and a half water line under the road . . . three foot below the top of the pavement” and that the
property owner “agrees to be responsible for any damages resulting from that installation.” (Id.
at 29:47–30:45.) After more discussion about the proper placement of the line, someone stated
that “there needs to be some kind of agreement” as to how the pipe would be installed and who
would do the installation, and another person asked if the Board would “like to table” the
discussion until it was “squared up.” (Id. at 32:01–11.) Before answering the question, someone
asked Plaintiff who was going to perform the water line installation. (Id. at 32:11.) Plaintiff
stated that he did not know yet and then listed some options. (Id. at 32:12–28.) Defendant
Wooten then said, “Why don’t you do your due diligence on this thing, Tyler, and find out who
you can get to do it and then just get back with us?” (Id. at 33:05; see also doc. 62, p. 2.)
6

Aside from where a specific speaker is noted, the Court was unable to discern from the recording who
was making which statements.

5

Plaintiff said “Alright, that’s fine,” and the Board passed a motion to table the matter. (Doc. 577 (audio) at 33:12–18; see also doc. 61-8 (newspaper article).)
B.

Installation of the Water Line and Subsequent Investigation

Approximately one week after the Board meeting, Plaintiff arranged for Emory Taylor to
install the water pipe under Lonnie Johnson Road, and the work was completed on June 1, 2013.
(Doc. 61, pp. 4–5.) Mr. Taylor utilized the “boring” method to install a 1.5-inch PVC pipe under
the road, extending from one side of Plaintiff’s property to the other.7 (Id.; doc. 43, p. 5.)
Plaintiff did not contact the Board prior to the pipe’s installation. (Doc. 61, p. 4; doc. 62, p. 4.)
On June 3, 2013, Defendant Hall returned to his home near Plaintiff’s property after a trip out of
town. (Doc. 62, p. 3.) After noticing Plaintiff had completed the project, Hall called Defendant
Powell (the County Attorney) and the road superintendent. (Id.) The trio subsequently met to
inspect the newly-installed pipe where they also discussed their concerns that the pipe could
cause future damage to the road. (Id. at p. 4.) Within one week of the site inspection, Hall
informed Defendant Wooten that Plaintiff had bored under the road without addressing any of
the concerns discussed at the Board meeting. (Id.) Hall also argued with Plaintiff’s father at
some point after discovering the pipe. (Doc. 61-25; doc. 57-3, pp. 84–89.)
After meeting with Hall and the road superintendent, Powell took several steps to begin
investigating whether Plaintiff’s project damaged government property or violated any laws.
(Doc. 61, p. 6.) First, Powell conducted legal research and used a listserv for county attorneys to
inquire about laws related to Plaintiff’s boring. 8 She then contacted the office of the Jeff Davis

7

“Boring” refers to an underground pipe-installation method. (Doc. 61, p. 5.)

8

While it is undisputed that Powell submitted an inquiry to the listserv, the exact substance of the post is
unknown. Plaintiff repeatedly cites to a document, (doc. 61-14), to support the contention that Powell
submitted a listserv post containing the phrase “any criminal warrant” prior to the investigation in 2013.

6

County District Attorney (“D.A.”) to obtain advice on how to proceed; according to Powell,
Assistant D.A. Kennedy (“A.D.A. Kennedy”) told her to contact the local sheriff’s department.
(Doc. 57-1, p. 40.) Powell acted on this advice and asked the County Sheriff’s Office to conduct
an investigation. (Doc. 62, p. 6.) When Powell called the Sheriff’s Office, she spoke with
Defendant Bohannon. (Doc. 56-2, p. 6.) Bohannon assigned the matter to Deputy Jamie Taylor
(whom Plaintiff did not name as a defendant), and Deputy Taylor eventually asked Powell to
give a statement. (Doc. 62, p. 6.) Powell obliged. (Id.)
After the investigation, Deputy Taylor prepared a report (the “Report”) and the resulting
document is not disputed by either party. In addition to Powell’s statement, the Report contained
summaries of Deputy Taylor’s conversations with Plaintiff, Plaintiff’s father, Emory Taylor, and
Emory Taylor’s employer. (Doc. 61-22.) The case file also included photos of the property
where the pipe was bored, a recorded copy of the May 20 Board meeting, a copy of a newspaper
article containing highlights from the May 20 meeting, a DVD with video footage of Plaintiff’s
interview with Deputy Taylor, land plots, and various photos of other county roads. 9 (Id.) The
Report did not contain any representations that Lonnie Johnson Road was visibly damaged and,
in an affidavit prepared for this case, Deputy Taylor stated that he “did not see any damage to the
road.” (Id.; doc. 61-17, p. 3 (Taylor Aff.).) After he completed the Report, Deputy Taylor gave
the case file to his secretary, and both he and his secretary contacted Powell to let her know the
file was ready. (Doc. 62, p. 8.) At some point prior to April 2014, Powell picked up the file
from the secretary and took it to the D.A.’s office. (Id.) There is no evidence that any Defendant

The Court thoroughly reviewed the document and found it to be devoid of any such phrase. In fact, the
postings provided to the Court by Plaintiff are all dated after 2014.
9

The Report indicates that the newspaper, DVD, land plots, and photos of other county roads were
submitted to Deputy Taylor by Plaintiff. (Doc. 61-22, p. 6.)

7

interacted or spoke with anyone at the D.A.’s office about Plaintiff’s case outside of Powell’s
initial conversation with A.D.A. Kennedy, Powell’s delivery of the file to the D.A.’s office, and
Powell’s testimony at a later motions hearing, discussed below. (Doc. 61-4, p. 9; doc. 57-3, pp.
97–98 (Hall Dep.); 57-4, p. 10 (Bohannon Dep.); doc. 57-2, p. 57 (Powell Superior Ct. Test. Tr.);
doc. 57-1, p. 53 (Powell Dep.).)
Plaintiff maintains that a secret meeting took place at some point prior to his prosecution
where the Defendants who were serving as commissioners (along with other members of the
Board) “voted” to seek his indictment. (Doc. 61, pp. 11–12.) In support of this contention,
Plaintiff cites to an affidavit of a former commissioner, Steve Toler. (Id.) Toler states that he
attended a meeting where Powell asked the commissioners if they wanted to “indict” Plaintiff,
but he further explains that he “did not know exactly what the word ‘indict’ meant, but
understood that [the Board] was going to get a statement from [Plaintiff] where he agreed to be
responsible for any future damage to the roadway.” (Doc. 61-24, p. 2.) Defendants, on the other
hand, do not recall any such meeting and maintain that the record does not show such a meeting
occurred. (Doc. 56-2, p. 14; doc. 57-3, pp. 74–75 (Hall Dep.).)
After this case was filed, Plaintiff obtained the contents of the D.A.’s file pursuant to a
subpoena. (Doc. 61-2, p. 14.) Among the documents in the file was a printed copy of a 2009
Georgia Court of Appeals opinion (issued in an unrelated criminal proceeding) that had
apparently been found via a search for certain words and terms on the “Lexis” database. (Doc.
61-23.) The document appears to have been printed on March 24, 2014. (Id.) The case
pertained to the issue of interference with government property. (Id.) Additionally, the file
contained what appeared to be an envelope with a printed return address for the “Law Offices of
Ken W. Smith, P.C.” along with the words “Investigator Jamie Taylor” written in Powell’s

8

handwriting. (Doc. 61-2, p. 14.) The two documents were found adjacent to one another in the
file, but the “Lexis” case opinion print-out does not contain the law office information (or any
other information about who printed it). (Id.)
C.

Plaintiff’s Indictment and Prosecution

On April 1, 2014, a grand jury indicted Plaintiff on charges of criminal trespass and
interference with government property. (Doc. 61-20, p. 2.) Deputy Taylor was subpoenaed and
testified before the grand jury. (Doc. 61-17, p. 2.) However, none of the Defendants participated
in the grand jury proceedings. (Doc. 62, p. 10.) Plaintiff turned himself in on April 4, 2014.
(Doc. 62, p. 10.) Plaintiff’s defense attorney eventually filed a motion to dismiss the indictment
and there was an oral hearing on October 19, 2015; Powell testified at the hearing pursuant to a
subpoena from Plaintiff’s counsel. (Doc. 61-4, p. 10; see generally doc. 57-2, pp. 16–109
(Powell Test. Tr.).) On April 11, 2016, an A.D.A. sent Plaintiff’s attorney an email stating that
“[t]he State has decided not to proceed further on the indictment,” and that a “nolle prosse” was
forthcoming. (Doc. 61-31, p. 2.) The order of nolle prosequi was entered on April 13, 2016, and
the charges against Plaintiff were dropped. (Doc. 62, p. 11.)
STANDARD OF REVIEW
Summary judgment “shall” be granted if “the movant shows that there is no genuine
dispute as to any material fact and that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A fact is “material” if it “might affect the outcome of the suit under the
governing law.” FindWhat Inv’r Grp. v. FindWhat.com, 658 F.3d 1282, 1307 (11th Cir. 2011)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute is “genuine” if
the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

9

The moving party bears the burden of establishing that there is no genuine dispute as to
any material fact. See Williamson Oil Co. v. Philip Morris USA, 346 F.3d 1287, 1298 (11th Cir.
2003). Specifically, the moving party must identify the portions of the record which establish
that there are no “genuine dispute[s] as to any material fact and the movant is entitled to
judgment as a matter of law.” Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011). When
the nonmoving party would have the burden of proof at trial, the moving party may discharge his
burden by showing that the record lacks evidence to support the nonmoving party’s case or that
the nonmoving party would be unable to prove his case at trial. See id. (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 322–23 (1986)). If the moving party discharges this burden, the burden
shifts to the nonmovant to go beyond the pleadings and present affirmative evidence to show that
a genuine issue of fact does exist. Anderson, 477 U.S. at 257.
In determining whether a summary judgment motion should be granted, a court must
view the record and all reasonable inferences that can be drawn from the record in the light most
favorable to the nonmoving party. Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee County,
630 F.3d 1346, 1353 (11th Cir. 2011) (citing Rodriguez v. Sec’y for Dep’t of Corr., 508 F.3d
611, 616 (11th Cir. 2007)). However, “facts must be viewed in the light most favorable to the
non-moving party only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S.
372, 380 (2007). “[T]he mere existence of some alleged factual dispute between the parties will
not defeat an otherwise properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.” Id. (emphasis and citations omitted).

10

DISCUSSION
I.

The Parties’ Arguments
Plaintiff brings claims for: malicious prosecution in violation of the Fourth Amendment

and Georgia law (Counts I, III); conspiring to violate his constitutional rights (Count II);
intentional infliction of emotional distress in violation of Georgia law (Count IV); and attorney’s
fees and punitive damages pursuant to federal and Georgia law (Count V). (Doc. 43, pp. 10–12.)
Plaintiff alleges that Defendants used their positions as county officials to encourage law
enforcement to bring “false” charges against him and that they “conspired to have [him]
prosecuted.” (Doc. 61, p. 1.) Plaintiff argues the lack of visible damage to Lonnie Johnson Road
caused by his boring proves that Defendants were determined to hold him criminally liable
despite a dearth of evidence providing a basis for them to do so. (Id.) Plaintiff contends that
these actions were motivated by “personal animus” stemming from his previous investigations
into the County’s records. (Id. at pp. 3–4.)
In their Motion, Defendants first argue that Plaintiff’s claims for malicious prosecution
fail as a matter of law. Because the D.A. made an independent choice to present the case to the
grand jury, Defendants allege they cannot be held liable for malicious prosecution under § 1983
or Georgia law as they did not institute Plaintiff’s prosecution. (Doc. 56-2, pp. 10, 21.) Further,
Defendants maintain that Plaintiff’s malicious prosecution claims fail because Plaintiff cannot
prove the absence of probable cause for his prosecution; that is, Plaintiff has no evidence to
support his allegations that Defendants wrongfully encouraged law enforcement officers to indict
and prosecute him, gave false statements to law enforcement, fabricated evidence, or failed to
disclose exculpatory evidence. (Id. at pp. 12–13, 22.) Defendants also allege that, even if

11

Plaintiff did have viable malicious prosecution claims, they would nonetheless be entitled to
qualified and official immunity. (Id. at pp. 16, 24.)
In regard to the claim asserted against it, Defendant Jeff Davis County argues that,
because “no violation of Clifton’s rights has occurred,” it cannot be held liable for malicious
prosecution. (Doc. 56-2, pp. 18–19.) However, even if there was such a violation, the County
further contends that summary judgment in its favor is proper as no actions in this case were
taken by the County’s final decisionmaker—a majority of the Board of Commissioners. (Id.)
Similarly, all Defendants argue that Plaintiff’s conspiracy claim fails “for want of an
underlying constitutional violation,” and because there is no evidence “to establish the existence
of an agreement between the County and the Sheriff to deprive [Plaintiff] of his rights.” (Id. at p.
21.) Finally, Defendants contend that Plaintiff’s claim for intentional infliction of emotional
distress is time-barred. (Id. at p. 23.)
II.

Analysis
A.

Malicious Prosecution

As noted above, Plaintiff asserts malicious prosecution claims against all Defendants
under both federal and state law. In his Amended Complaint, Plaintiff alleges that Defendants
are liable because they “effectuated and encouraged [his] prosecution in violation of [his] Fourth
Amendment rights,” and willfully and maliciously prosecuted him without probable cause in
violation of Georgia law. (Doc. 43, pp. 9, 11.) Malicious prosecution claims brought pursuant to
Section 1983 arise under the Fourth Amendment, while O.C.G.A. § 51-7-40 governs claims
asserted under Georgia law. Uboh v. Reno, 141 F.3d 1000, 1003–04 (11th Cir. 1998). To
prevail on a malicious prosecution claim under Section 1983 or Georgia law, a plaintiff must
show: “(1) a criminal prosecution instituted or continued by the present defendant; (2) with

12

malice and without probable cause; (3) that terminated in the plaintiff accused’s favor; and (4)
caused damage to the plaintiff accused.” Green v. City of Lawrenceville, 745 F. App’x 881, 883
(11th Cir. 2018) (per curiam) (quoting Kjellsen v. Mills, 517 F.3d 1232, 1237 (11th Cir. 2008)).
Here, elements (1) and (2) are disputed; however, for the reasons explained below, Plaintiff has
not put forth sufficient evidence to prove either element under both federal and state law. (Doc.
56-2, pp. 10–16; doc. 68, pp. 4–8.)
As to the first element—prosecution by the defendant—Defendants argue that there is an
absence of evidence tending to show that they instituted, participated in, or improperly
influenced Plaintiff’s prosecution.

(Doc. 56-2, p. 15; doc. 68, p. 4–8.)

In other words,

Defendants maintain that the D.A. made an independent decision to present charges against
Plaintiff to the grand jury and that this decision, as well as the grand jury’s subsequent
indictment, “broke [any] chain of causation.” (Doc. 56-2, p. 11 (quoting Jones v. Cannon, 174
F.3d 1271, 1287–88 (11th Cir. 1999).) Plaintiff disagrees and argues that there is “ample
evidence” indicating that Defendants instituted or continued the prosecution. (Doc. 61, p. 16.)
Specifically, Plaintiff points to (1) Defendants’ purported “secret and illegal meeting” wherein
they voted to “indict” Plaintiff, (2) the fact that the D.A.’s file contained legal research situated
next to a separate document that appeared to be addressed, in Powell’s handwriting, to
“Investigator Jamie Taylor,” and (3) the fact that Powell delivered Deputy Taylor’s investigative
file to the D.A. (Id. at 17.) Plaintiff also speculates (without providing any supporting record
citations) that Defendants “almost assuredly held a meeting with the prosecution about the
information contained in Deputy Taylor’s investigative file,” and further claims that several
Defendants “intentionally (or at least recklessly) omitted the fact that the roadway was not
damage[d] when interacting with law enforcement.” (Id. at pp. 17–18.)

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The Eleventh Circuit Court of Appeals has stated that, under federal law, a defendant is
not the legal cause of a prosecution or other criminal proceeding where “there [is] no evidence
that [the defendant] had anything to do with the decision to prosecute or that [the defendant] had
‘improperly influenced’ that decision.” Williams v. Miami-Dade Police Dep’t, 297 F. App’x
941, 947 (11th Cir. 2008) (per curiam) (quoting Eubanks v. Gerwin, 40 F.3d 1157, 1160 (11th
Cir. 1994)). Put another way, the “intervening acts of the prosecutor, grand jury, judge and jury
. . . each break the chain of causation unless plaintiff can show that these intervening acts were
the result of deception or undue pressure by the defendant[s].” Barts v. Joyner, 865 F.2d 1187,
1195 (11th Cir. 1989).
In Eubanks v. Gerwin, the Eleventh Circuit considered a malicious prosecution claim
against police officers who conducted an investigation that led to the plaintiff’s prosecution for
drug trafficking. 40 F.3d at 1159. The record showed that the defendants had “fully appris[ed]
the State Attorney of all relevant information known to them, including that which weighed for
and against Eubanks’ guilt,” and eventually “turn[ed] over all relevant information about the
matter to the State Attorney.” Id. at 1161. Specifically, the police officers disclosed “mixed
polygraph results, the fruitless search of Eubanks’ home and Eubanks’ lack of prior criminal
record.” Id. at 1160. The court held that, because none of the officers had “anything to do with
the decision whether or not to prosecute [plaintiff]” and “did [not] act in such a way as
improperly [to] influence the decision by the [prosecutor],” the defendant officers were entitled
to summary judgment on the malicious prosecution claim. Id. at 1160–61; see also Whiting v.
Traylor, 85 F.3d 581, 586 n.10 (11th Cir. 1996) (prosecutor’s decision to continue prosecution
can sever the causal link between an arresting officer’s conduct and the plaintiff’s injury).

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Similarly, a defendant has not legally “instigated” or “prosecuted” a plaintiff under
Georgia law if another individual “made an ‘independent decision to arrest or prosecute.’”
Jackson v. Kmart Corp., 851 F. Supp. 469, 472 (M.D. Ga. 1994) (citation omitted) (applying
Georgia law). If, however, the evidence demonstrates that a defendant’s “persuasion was the
determining factor in inducing [another] officer’s decision, or that he gave information which he
knew to be false and so unduly influenced the authorities, he may be held liable.” Baggett v.
Nat’l Bank & Trust Co., 330 S.E.2d 108, 110 (Ga. Ct. App. 1985).
Here, Plaintiff does not cite to, and the Court is not aware of, any evidence indicating that
Defendants were responsible for the decision to prosecute Plaintiff or the continuation of his
prosecution. Defendants Hall and Wooten, through Defendant Powell, presented their concerns
about the legality of Plaintiff’s boring under a county road to the Sheriff, who then assigned a
deputy to investigate the situation and prepare a report. (Doc. 62, pp. 5–6.) The report was then
delivered to the D.A.’s office, and the D.A. subsequently decided to present charges to the grand
jury. No Defendant testified at the grand jury proceedings. (Doc. 62, p. 10.) There is no
evidence that any Defendant presented deceptive information to another Defendant, to the
investigator, or—most importantly—to the D.A. There is also no evidence that any Defendant
pressured the D.A. to bring the charges.

Indeed, there is simply no evidence supporting

Plaintiff’s allegations that one or more of the Defendants ever met or spoke with the D.A. about
this case after Powell’s initial conversation with A.D.A. Kennedy. Even if there was such
communication, there is no evidence that any such conversation involved deception, undue
pressure, or anything that would support a finding of undue or improper influence. 10

10

As the Court explained in note 3, supra, Plaintiff’s counsel recently submitted new evidence to the
Court. (Doc. 82.) Apparently, “Plaintiff’s counsel discovered a resume on the internet that appears to
contain [the D.A.]’s cell phone number.” (Id. at p. 1.) After cross-referencing this phone number with

15

Moreover, even assuming Defendants held the alleged “secret” meeting where they voted
to “indict” Plaintiff, there is no evidence that this vote influenced the D.A. (or anyone else).
Moreover, it is undisputed that no Defendant had the independent legal authority to commence
the prosecution or present charges to a grand jury even after such vote was taken. (Doc. 61, p. 2;
doc. 68, p. 4.) Similarly, even if Defendant Powell gave Deputy Taylor the legal research found
in the D.A.’s folder, Deputy Taylor was not the party responsible for choosing to prosecute
Plaintiff and there is no evidence that, because of the research, Deputy Taylor did anything that
persuaded the D.A. to bring charges. In fact, as Plaintiff frequently points out, Deputy Taylor
did not think criminal charges were warranted. (Doc. 61, p. 18; doc. 61-17, p. 3 (Taylor Aff.).)
Further, there was nothing false or deceptive about the legal research.
Finally, there is no evidentiary support for Plaintiff’s argument that the road’s lack of
damage was unknown to the D.A. because Defendant Powell failed to tell Deputy Taylor that
“the road was not damaged.” (Doc. 61, p. 18.) Regardless of what Defendants did or did not tell
Deputy Taylor, the record before the Court indicates that the condition of the road was a fact

Defendant Powell’s phone records (obtained by Plaintiff during discovery), Plaintiff argues this evidence
proves that Powell communicated with the D.A., refuting evidence already in the record. (Id. at pp. 1–2.)
The Court reviewed this evidence and, while not obliged to consider it in its decision, finds it to be
inconsequential to the findings in this Order. The documents show that Powell received three incoming
calls from the at-issue phone number—two on March 3, 2014, and one on March 28, 2014. (Docs. 82-2,
82-3.) The calls lasted one minute (or less) each. (Id.) This evidence does not contradict any of Powell’s
statements as Plaintiff argues. Powell’s testimony has been that she did not have any contacts with the
D.A.’s office pertaining to Plaintiff’s case. (Doc. 61-2, pp. 12, 15; doc. 63-1.) At best, the documents
submitted by Plaintiff establish that D.A. Johnson called Powell three times in March 2014 and the pair
spoke for one minute or less on each occasion. Even assuming the cell phone number belongs to the
D.A., and even viewing this evidence in the light most favorable to Plaintiff, there is no basis for a jury to
find that Plaintiff’s case—as opposed to any other case or matter—was discussed by the D.A. and the
county attorney during those phone calls. Such a finding would require impermissible speculation by the
jury. Moreover, this evidence indicates that D.A. Johnson contacted Powell—not that Powell initiated
any communications with the D.A. Thus, this new evidence does not remedy the evidentiary void that is
ultimately fatal to Plaintiff’s case—the lack of evidence tending to show that any Defendant influenced or
fraudulently induced the D.A.’s office to prosecute Plaintiff.

16

readily available to the D.A. Deputy Taylor’s investigative file, in its entirety, was given to the
D.A. 11 (Doc. 61-4, p. 9 (Clifton Dep.).) The file contained Plaintiff’s own statement that he did
not damage the road along with photos of the road. (Doc. 61-21.) Furthermore, Deputy Taylor,
who personally investigated the road and did not believe it to be damaged, testified before the
grand jury. (Doc. 61-4. p. 9; doc. 61-17 (Taylor Aff.).) While Deputy Taylor’s actual testimony
and other evidence presented to the grand jury are unavailable, the record simply does not
support a finding that the condition of the road was unknown by the D.A.—especially when, as
stressed by Plaintiff, “damage” is an element of the offense he was indicted for. (Doc. 80, pp. 9–
10. (citing O.C.G.A. § 16-7-24(a)).) However, even if the condition was somehow unknown to
the D.A, the record shows that such ignorance is not due to any action or misrepresentation of
the Defendants. Thus, Plaintiff has not shown a basis for finding that the at-issue prosecution
was initiated based on false information, let alone false information provided by or at the behest
of Defendants. See Williams, 297 F. App’x at 947. Rather, like the State Attorney in Eubanks,
the D.A. had “all relevant information known to [Defendants], including that which weighed for
and against [Plaintiff’s] guilt.” 40 F.3d at 1161.
While it is undisputed that, like the investigating officers in Eubanks, the actions of
several Defendants initiated the investigation into Plaintiff’s boring, (doc. 62, pp. 4–6), it was the
D.A.—not Defendants—who made the decision to initiate and carry out the prosecution, and
Plaintiff has not shown that any Defendant had anything to do with that decision. See id.; see
also Marshall v. West, 507 F. Supp. 2d 1285, 1303 (M.D. Ala. 2007) (“It is true that [defendants]
started the chain of events which led to formal charges being brought against Plaintiff. The ‘but
for’ causation test, however, is not the standard under Eubanks[.]”); Jackson, 851 F. Supp at 472
11

Plaintiff does not allege that Defendants tampered with the file or altered the report in any way.

17

(defendant did not instigate prosecution where his known desire for plaintiff’s arrest was not the
“determining factor” for arrest). As Plaintiff has failed to put forth sufficient evidence to
establish that Defendants instituted, continued, or improperly influenced his prosecution, an
essential element of his claim, the Court finds that Defendant is entitled to summary judgment on
this issue.
Moreover, even assuming, arguendo, that Plaintiff has made the necessary showing on
the first element, his malicious prosecution claim would still fail as he cannot show a lack of
probable cause, the second element. Because the absence of probable cause is an element of the
tort, “the existence of probable cause defeats a § 1983 malicious prosecution claim.” Grider v.
City of Auburn, 618 F.3d 1240, 1256 (11th Cir. 2010). Defendants allege that the grand jury’s
indictment demonstrates the existence of probable cause and that Plaintiff has not shown the
indictment was procured by fake or fraudulent means. (Doc. 56-2, pp. 11–16.) In response,
Plaintiff argues that, had Defendants affirmatively told Deputy Taylor that Lonnie Johnson Road
was not damaged, “there would have been no probable cause to indict [him] in the first place.”
(Doc. 61, pp. 18–19.) The Court agrees with Defendants.
Ordinarily, “an indictment by a properly constituted grand jury conclusively determines
the existence of probable cause and provides the authority for an arrest warrant . . . .” Rodriguez
v. Ritchey, 556 F.2d 1185, 1991 (5th Cir. 1977), abrogated on other grounds by Malley v.
Briggs, 475 U.S. 335 (1986).12 However, such evidence is not always conclusive. Where an
indictment has been issued, a prosecuting party is insulated from liability only where he made “a
fair, full and complete statement of the facts as they exist. He is not relieved if he conceals facts,

12

In Bonner v. City of Prichard, 661 F. 2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1,
1981.

18

nor if he distorts facts, nor if he is negligent in ascertaining facts.” Fleming v. U-Haul Co., 541
S.E.2d 75, 78 (Ga. Ct. App. 2000); see also Kelly v. Serna, 87 F.3d 1235, 1241 (11th Cir. 1996)
(“If [an] indictment was procured on knowingly false testimony, it would not support a finding of
probable cause [under Georgia law].”); Pombert v. Glock, Inc., 171 F. Supp. 3d 1321, 1330
(N.D. Ga. 2016) (an “allegedly malicious prosecutor” must fairly and fully portray facts “to be
protected by the grand jury’s indictment”).
Here, Plaintiff has not pointed to any evidence indicating that the prosecution or
subsequent indictment were procured by fraudulent or otherwise improper means. Any failure
by Defendants to affirmatively disclose the road’s condition was inconsequential as the record
demonstrates that the D.A. had access to the information. Accordingly, the Court finds that, as a
matter of law, there was probable cause for Plaintiff’s arrest and subsequent prosecution, the
presence of which “defeats” his malicious prosecution claims. See Grider, 618 F.3d at 1256.
As Plaintiff has failed to put forth sufficient evidence to establish that Defendants
instituted his prosecution or that Defendants did so without probable cause, he cannot prove
essential elements of his § 1983 and state law malicious prosecution claims. “The elements of
malicious prosecution are listed in the conjunctive; therefore, if [a p]laintiff is unable to prove
any of the four elements, his claim necessarily fails.” Holland v. City of Auburn, 657 F. App’x
899, 903 (11th Cir. 2016) (per curiam); see also Underwood v. City of Bessemer, No. 2:15-CV01585-JHE, 2018 WL 4685461, at *14 (N.D. Ala. Sept. 28, 2018) (unsupported speculation
about defendants’ influence on decision to prosecute was insufficient to meet evidentiary burden
on summary judgment); Condon v. Vickery, 606 S.E.2d 336, 339 (Ga. Ct. App. 2004) (affirming
grant of summary judgment where plaintiff could not prove one element of malicious
prosecution claim).

Accordingly, Defendants are entitled to judgment in their favor as to

19

Plaintiff’s malicious prosecution claims against them, and the Court GRANTS Defendants’
Motion on this issue. 13
B.

Conspiracy

Defendants also moved for summary judgment on Plaintiff’s Section 1983 conspiracy
claim. (Doc. 56-2, pp. 20–21.) “To sustain a conspiracy action under § 1983, . . . a plaintiff
must show an underlying actual denial of its constitutional rights.” GJR Invs. v. County of
Escambia, 132 F.3d 1359, 1370 (11th Cir. 1998), abrogated on other grounds, as recognized by
Randall v. Scott, 610 F.3d 701 (11th Cir. 2010).

Because the Court finds that Plaintiff’s

constitutional claim lacks the factual support necessary to survive the summary judgment stage,
the Court GRANTS Defendants’ Motion as to Plaintiff’s conspiracy claim.
C.

Intentional Infliction of Emotional Distress

Defendants argue that Plaintiff’s claim for intentional infliction of emotional distress
(“IIED”) is time-barred and, as a result, they are entitled to judgment in their favor. (Doc. 56-2,
p. 23.) A claim for intentional infliction of emotional distress is subject to a two-year statute of
limitations, governed by O.C.G.A. § 9-3-33. Plaintiff filed the present action on July 8, 2016.
(Doc. 1.) Thus, to have a viable claim, Plaintiff must have evidence that Defendants acted within
the two-year period prior to that date; in other words, to survive summary judgment, Plaintiff
must point to evidence of Defendants’ conduct occurring after July 8, 2014. In a previous Order
ruling on Defendants’ Motion to Dismiss, (doc. 20), the Court held that Plaintiff’s claim was not
clearly time-barred because the Complaint alleged conduct that occurred after that date. (Doc.

13

In light of the Court’s ruling in this subsection, the County, like the individual Defendants, is entitled
to judgment in its favor on the malicious prosecution claim against it. While a municipality—here, the
County—can be “liable for constitutional violations committed by the municipality’s employees” in
certain situations, “there can be no municipal liability under § 1983 absent a constitutional violation.”
Winters v. Ranum, 730 F. App’x 826, 828 (11th Cir. 2018) (per curiam).

20

40, pp. 5–6.) Specifically, the Court noted that the entry of nolle prosequi in Plaintiff’s case
occurred on April 13, 2016. (Id.)
While they do not dispute that the charges against Plaintiff were dismissed on that date,
Defendants contend that “discovery has conclusively revealed that Defendants’ involvement with
[Plaintiff] terminated when [] Powell delivered the investigative file to the District Attorney,
which happened no later than March of 2014.” (Doc. 56-2, p. 23.) Defendants concede that
Powell testified at a hearing related to Plaintiff’s prosecution in 2015 but argue that, because the
testimony was under oath and pursuant to a subpoena requested by Plaintiff’s counsel, the
conduct does not qualify as “extreme or outrageous.” (Id.) In his Response, Plaintiff does not
directly address Defendants’ argument; rather, Plaintiff urges that the statute of limitations was
tolled by Powell’s alleged provision of legal research “days before [Plaintiff’s] indictment,” a
fact which “was not disclosed” until after the lawsuit was filed. (Doc. 61, p. 25 (citing O.C.G.A.
§ 9-3-96).) Plaintiff also vaguely asserts that “Defendants participated more than they admitted.”
(Id.) In their Reply, Defendants note that, even if the facts alleged by Plaintiff were true, he
“does not even attempt to show how these facts would entitle him to equitable tolling on the
basis of fraudulent concealment[.]” (Doc. 68, p. 17.) The Court agrees with Defendants.
For purposes of summary judgment, it is undisputed that the at-issue research would have
been provided “before [Plaintiff’s] indictment” in April of 2014. (Doc. 61, p. 25.) Plaintiff
suggests—without any explanation or supporting argument—that the statute of limitations “can
be tolled” because Defendants did not disclose the legal research to Plaintiff until after the
lawsuit was filed. (Id.) Even assuming Powell did conduct the research, did provide it to Deputy
Taylor, and did conceal that fact from Plaintiff, such actions would not toll the statute of
limitations under the fraudulent concealment statute. It is established under Georgia law that the

21

type of fraud “which is necessary to toll the statute of limitations until the discovery of the fraud
which gives rise to the cause of action, must be actual fraud, involving moral turpitude, which
‘debars and deters’ the plaintiff from his action . . . .” Union Circulation Co. v. Tr. Co. Bank,
247 S.E.2d 197, 198 (Ga. Ct. App. 1978) (emphasis added) (citations omitted); see Charter
Peachford Behavioral Health Sys. v. Kohout, 504 S.E.2d 514, 522 (Ga. Ct. App. 1998) (“The key
element for such tolling to apply is that the fraud must have debarred or deterred plaintiff from
bringing the suit” in a timely manner.) Plaintiff has not pointed to any facts or attempted to
explain how his ignorance about the research prevented him from discovering his cause of action
or deterred him from pursuing his claim. (Doc. 61, p. 25.) Accordingly, the tolling statute is
inapplicable to Plaintiff’s intentional infliction of emotional distress claim, and he is time-barred
from basing that intentional infliction of emotional distress claim on the alleged provision of
legal research to the investigator.
Finally, though Plaintiff does not address it in his Reply, Defendants do point out that
Powell testified in a hearing during Plaintiff’s prosecution, an event which occurred after July 8,
2014. (Doc. 56-2, p. 23.)

Assuming Plaintiff intends to base his intentional infliction of

emotional distress claim on Powell’s participation in his hearing to pursue his intentional
infliction of emotional distress claim against her, the record before the Court does not support a
finding that this act meets the level of outrageousness required to support an intentional infliction
of emotional distress claim. 14 Under Georgia law, a plaintiff asserting an intentional infliction
of emotional distress claim is required to show: (1) the defendant’s conduct was intentional or
reckless; (2) the conduct was extreme or outrageous; (3) the conduct caused the emotional
14

This is one of several obfuscating aspects of his Response, and the Court reminds Plaintiff’s counsel
that “[t]he burden is not on the [C]ourt to connect the links in the logical chain of a wouldbe [sic]
argument where no actual argument is made.” Gordon v. United States, No. 2:15-cv-758-MHT-SRW,
2016 U.S. Dist. LEXIS 118364, at *31 (M.D. Ala. Aug. 31, 2016).

22

distress; and (4) the emotional distress was severe. Amstead v. McFarland, 650 S.E.2d 737, 742
(Ga. Ct. App. 2007). Whether the at-issue conduct is sufficiently extreme or outrageous is a
question of law for the court.

Id.

Further, “[i]n order to rise to the requisite level of

outrageousness, the defendant’s conduct must be so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
society.” Id. (quoting McClung Surveying v. Worl, 541 S.E.2d 703, 707 (Ga. Ct. App. 2000)).
Powell testified at the hearing pursuant to a subpoena—a legal obligation—that was issued at
Plaintiff’s attorney’s request. (Doc. 56-2, p. 23.) Though “testifying falsely or in a misleading
fashion” is vaguely mentioned in his Amended Complaint, (doc. 43, p. 9), Plaintiff has not
pointed to any testimony that he claims was false or misleading, nor has he specifically argued
that Powell’s mere participation in the hearing qualifies as “extreme” conduct; again, Plaintiff
did not mention the testimony in his Response. Thus, Powell’s testimony cannot undergird the
intentional infliction of emotional distress claim and cannot provide grounds for tolling the
statute of limitations on that claim.
Because Plaintiff has not pointed to actionable conduct occurring after July 8, 2014, and
because there is no basis for finding that the statute of limitations was tolled, Defendants are
entitled to summary judgment on this issue. Accordingly, the Court GRANTS Defendants’
Motion as to Plaintiff’s claim for intentional infliction of emotional distress.
D.

Punitive Damages

Plaintiff also argues that he is entitled to punitive damages pursuant to Georgia law,
O.C.G.A. § 51-12-5.1(b), and under § 1983. Plaintiff contends that such damages are warranted
because Defendants’ “actions constitute willful misconduct, malice, fraud, wantonness,
oppression, and an entire want of care that shows a conscious indifference for the consequences

23

of their actions.” (Doc. 43, p. 12.) Under Georgia law, punitive damages may only be awarded
if there is a valid claim for actual damages to which it could attach; punitive damages may not be
recovered if there is no entitlement to compensatory damages. O.C.G.A. § 51-12-5.1(b); see J.
Kinson Cook of Ga., Inc. v. Heery/Mitchell, 644 S.E.2d 440, 449 (Ga. Ct. App. 2007).
Similarly, “a plaintiff in a § 1983 suit cannot recover punitive damages unless he first
demonstrates that he has been deprived of a right secured by the Constitution or laws of the
United States.” Curves, LLC v. Spalding County, No. 3:07-CV-10-JTC, 2010 WL 11507905, at
*7 (N.D. Ga. July 23, 2010), aff’d, 685 F.3d 1284 (11th Cir. 2012). For the reasons discussed
above, Plaintiff cannot recover on any claims against Defendants under Georgia law or 42 U.S.C.
§ 1983. Without any remaining underlying claims, Plaintiff is not entitled to punitive damages,
and the Court GRANTS Defendants’ Motion on this issue.
E.

Attorney’s Fees

Plaintiff also requests attorney’s fees and expenses of litigation under O.C.G.A. § 13-611 and 42 U.S.C. § 1988. (Doc. 43, p. 12.) Like a claim for punitive damages, a claim for
attorney’s fees under Georgia law requires a viable underlying claim. See Gilmour v. Gates,
McDonald & Co., 382 F.3d 1312, 1316 (11th Cir. 2004) (citing United Cos. Lending Corp. v.
Peacock, 475 S.E.2d 601 (Ga. 1996)). The same principle applies when a Plaintiff seeks to
recover attorney’s fees under federal law. See 42 U.S.C. § 1988 (providing that the court may
allow “the prevailing party, other than the United States, a reasonable attorney’s fee”). Because
none of his claims survive summary judgment, Plaintiff’s claims for attorney’s fees also fail.
Accordingly, the Court GRANTS summary judgment in favor of Defendants on such claims.

24

F.

Qualified and Official Immunity

For the reasons explained throughout this Order, the Court finds that none of Plaintiff’s
claims survive the summary judgment stage and that Defendants are entitled to judgment in their
favor on the merits. In the absence of any viable claims, the Court need not address the issues of
qualified and official immunity. See Barker v. Norman, 651 F.2d 1107, 1124 (5th Cir. 1981)
(“[I]f the defendant has established beyond dispute that he did not engage in the complained-of
conduct, then summary judgment is appropriate. [This] has nothing to do with the qualified
immunity defense; rather, it is based on the plaintiff's inability to prove the facts essential to
recovery.”); Haberle v. Univ. of Alabama in Birmingham, 803 F.2d 1536, 1541 n.3 (11th Cir.
1986) (qualified immunity analysis unnecessary where case was decided on the merits); Langton
v. Dep’t of Corr., 469 S.E.2d 509, 510 (Ga. Ct. App. 1996) (declining to address official
immunity where plaintiff had no viable claims). However, even if a genuine dispute of material
fact existed as to the merits of Plaintiff’s claims, the Defendants would nonetheless be entitled to
summary judgment on the principle of qualified immunity as to Plaintiff’s federal claims and on
official immunity as to Plaintiff’s state law claims.
(1)

Qualified Immunity

Defendants contend that qualified immunity shields them from Plaintiff’s claims asserted
under federal law. (Doc. 56-2, pp. 16–17.) “Qualified immunity protects government officials
performing discretionary functions from suits in their individual capacities unless their conduct
violates ‘clearly established statutory or constitutional rights of which a reasonable person would
have known.’” Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir. 2003) (quoting Hope v. Pelzer,
536 U.S. 730, 739 (2002)). “Qualified immunity is intended to allow government officials to
carry out their discretionary duties without the fear of personal liability or harassing litigation,

25

protecting from suit all but the plainly incompetent or one who is knowingly violating the federal
law.” Hoyt v. Cooks, 672 F.3d 972, 977 (11th Cir. 2012) (quotations and citations omitted). As
a result, qualified immunity “liberates government agents from the need to constantly err on the
side of caution by protecting them both from liability and the other burdens of litigation,
including discovery.” Holmes v. Kucynda, 321 F.3d 1069, 1077 (11th Cir. 2003) (internal
quotation marks omitted). But qualified immunity does not protect an official who “knew or
reasonably should have known that the action he took within his sphere of official responsibility
would violate the constitutional rights of the [plaintiff].” Id. (quoting Harlow v. Fitzgerald, 457
U.S. 800, 815 (1982)) (internal quotation marks and alteration omitted).
To rely upon qualified immunity, a defendant first must show that he or she acted within
his or her discretionary authority. Mobley v. Palm Beach Cty. Sheriff Dep’t., 783 F.3d 1347,
1352 (11th Cir. 2015). Specifically, a defendant must show that he or she “was (a) performing a
legitimate job-related function (that is, pursuing a job-related goal), (b) through means that were
within his power to utilize.” Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004). Here,
Defendants have met this burden. After discovering Plaintiff bored under a public road prior to
receiving the Board’s approval, Defendants were concerned that the pipe either damaged or
would cause future damage to county property. (Doc. 68, p. 13.) As county officials, it was
within their discretionary authority to conduct a cursory investigation, seek advice about
potential legal recourse, and refer the matter to the Sheriff’s Office for further investigation.
(Id.) Therefore, Defendants may properly assert the defense of qualified immunity and the
burden now shifts to the Plaintiff to show that qualified immunity is not appropriate. Lee v.
Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002).

26

The Court must grant qualified immunity unless the facts taken in the light most
favorable to Plaintiff show (1) that there was a violation of the Constitution; and (2) that the
illegality of the Defendant’s actions was clearly established at the time of the incident. Hoyt,
672 F.3d at 977. The Court has discretion in deciding which of those two prongs to address first.
Pearson v. Callahan, 555 U.S. 223, 236 (2009). In this case, the Court has already determined
above that even when viewing the evidence in the light most favorable to Plaintiff, Defendants
did not commit a constitutional violation. Moreover, even if it could somehow be said that they
did conspire to maliciously prosecute Plaintiff in violation of the Fourth Amendment, it cannot
be said that the illegality of their conduct was clearly known at the time of the incident
underlying this lawsuit.
“[T]he touchstone of qualified immunity is notice.” Bussey-Morice v. Gomez, 587 F.
App’x 621, 627 (11th Cir. 2014) (per curiam) (citing Holmes, 321 F.3d at 1078). The violation
of a constitutional right is clearly established if a reasonable official would understand that his
conduct violates that right. See Coffin v. Brandau, 642 F.3d 999, 1013 (11th Cir. 2011) (en
banc). Under the Eleventh Circuit’s framework for applying this step of the qualified immunity
analysis, a plaintiff must show that the allegedly violated right was “clearly established” in one
of three ways. First, the plaintiff may point to a case with indistinguishable material facts
decided by the Supreme Court of the United States, the Eleventh Circuit Court of Appeals, or the
highest court of the pertinent state, affirming the existence of the right and “provid[ing] clear
notice of the violation.” Long v. Slaton, 508 F.3d 576, 584 (11th Cir. 2007). Second, a broad
statement of principle from “a federal constitutional or statutory provision or earlier case law”
can provide notice that certain conduct amounts to a constitutional violation where the principle
“applie[s] with ‘obvious clarity’ to the circumstances, establishing clearly the unlawfulness of

27

the Defendants’ conduct.” Id. Finally, the plaintiff may show that the alleged conduct of the
officials was “so egregious that a constitutional right was clearly violated, even in the total
absence of case law.” Lewis v. City of West Palm Beach, 561 F.3d 1288, 1292 (11th Cir. 2009).
Here, Plaintiff has failed to meet his burden. Plaintiff does not cite any controlling or
materially similar case law and does not identify “a broad legal principle” indicating that a
county official’s assessment of damage to a public road and subsequent referral to legal or
investigative authorities for investigation amounts to a constitutional violation. 15 See Griffin
Indus. v. Irvin, 496 F.3d 1189, 1209 (11th Cir. 2007). The Court’s own research has likewise
revealed none. Finally, Plaintiff has not shown that Defendants’ conduct was “so egregious as to
violate . . . the Fourth Amendment on its face.” Vinyard v. Wilson, 311 F.3d 1340, 1351 (11th
Cir. 2002). Thus, Plaintiff is unable to overcome Defendants’ qualified immunity defense, and
even if Plaintiff demonstrated facts amounting to a constitutional violation, Defendants are
insulated from liability for violations of federal law.
(2)

Official Immunity

Defendants also argue that they are entitled to official immunity as to each of Plaintiff’s
state law claims. (Doc. 56-2, p. 24.) In Georgia, the doctrine of official immunity “offers public
officers and employees limited protection from suit in their personal capacity.” Cameron v.
15

Plaintiff argues that the facts in Whittington v. Maxwell, a case from the Fifth Circuit Court of
Appeals, “would put any rational government official on notice that encouraging an individual’s
prosecution to vent personal animus is to violate his clearly established rights.” (Doc. 80, p. 14 (citing
455 F. App’x 450 (5th Cir. 2011) (per curiam).) The Whittington court found that the denial of qualified
immunity was proper where the relevant facts supported an inference that the defendant official violated
clearly established law by fabricating charges that resulted in the plaintiff’s incarceration. Whittington,
455 F. App’x at 459–60. Whittington’s material facts are not indistinguishable from the facts of this case.
For instance, as discussed at-length in the preceding sections, the evidence in this case does not support a
finding that any Defendant falsified or fabricated any charges against Plaintiff. Thus, Whittington is
factually dissimilar and not “capable of putting every objectively reasonable officer on notice” that the
conduct in this case violates clearly established law. See Long, 508 F.3d at 584. Moreover, a decision of
the Fifth Circuit (an unpublished one at that) cannot provide a basis for piercing the shield of qualified
immunity as to state actors in the Eleventh Circuit.

28

Lang, 549 S.E.2d 341, 344 (Ga. 2001); see also Crosby v. Johnson, 779 S.E.2d 446, 450 (Ga. Ct.
App. 2015) (“When a county official is sued in his individual capacity, the doctrine of official
immunity . . . is implicated.”). Under the doctrine of official immunity, state officers and
employees are “immune from individual liability for discretionary acts undertaken in the course
of their duties and performed without willfulness, malice, or corruption.” Reed v. DeKalb
County, 589 S.E.2d 584, 586 (Ga. Ct. App. 2003). Here, the parties do not dispute that each
Defendant was acting within his or her discretionary authority. (Doc. 56-2, p. 24; doc. 61, p. 25.)
As such, the burden shifts to Plaintiff to show that Defendants acted with actual malice. See
Reed, 589 S.E.2d at 589 (defendant entitled to summary judgment where plaintiff failed to offer
evidence of actual malice).
In the context of official immunity, “actual malice” requires “a deliberate intention to do
wrong.” Adams v. Hazlewood, 520 S.E.2d 896, 898 (Ga. 2011). “Actual malice requires more
than harboring bad feelings about another. [The] presence [of ill will] alone cannot pierce
official immunity; rather, ill will must also be combined with the intent to do something
wrongful or illegal.” Id. Evidence that merely shows “an intent to do the act purportedly
resulting in the claimed injury[]” does not suffice. Marshall v. Browning, 712 S.E.2d 71, 74 (Ga.
Ct. App. 2011). Similarly, “deliberate intention to do wrong” means “the intent to cause the
harm suffered by the plaintiff[].” Murphy v. Bajjani, 647 S.E.2d 54, 60 (Ga. 2007).
Here, Plaintiff has not put forth sufficient evidence to show that any Defendant acted
with actual malice. As reiterated throughout this Order, the D.A. made an independent decision
to prosecute Plaintiff and the record is devoid of evidence tending to show that Defendants’
actions were calculated to influence the D.A.’s decision, let alone calculated to cause Plaintiff
harm. Regardless of any personal or negative feelings Defendants harbored towards Plaintiff, he

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has not shown that Defendants actions surrounding the water line were done with the intent to
cause Plaintiff’s purported harm. See Greenway v. Northside Hosp., Inc., 763 S.E.2d 488, 489
(Ga. Ct. App. 2014) (“[E]vidence demonstrating frustration, irritation, and possibly even anger is
not sufficient to penetrate official immunity.”). Accordingly, the Court finds that Defendants are
entitled to official immunity from Plaintiff’s state law claims.
CONCLUSION
For the reasons set forth above, the Court GRANTS Defendants Jeff Davis County, Ray
Wooten, Hugh Brantley, Wanda Marchant, Wayne Hall, Carla Roberts Powell, and Sheriff
Preston Bohannon’s Motion for Summary Judgment, (doc. 56). The Court DIRECTS the Clerk
of Court to enter the appropriate judgment of dismissal and to CLOSE this case.
SO ORDERED, this 5th day of June, 2019.

R. STAN BAKER
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA

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