Williams v. Franklin et al

Filing 36

ORDER granting Defendants' 34 Motion for Summary Judgment with respect to all claims. The Clerk of Court is DIRECTED to close this case. Signed by Judge Lisa G. Wood on 1/31/2019. (csr)

Kti

?lltitteb States! Bisctnct Conrt

for t|ie ^oittl^ent Btsitrtct of ^^eorgta
Prttttoiiitcft Sitbtoton
JERMAINE D. WILLIAMS,

Plaintiff,
V.

CV 2:17-128

JEFFREY FRANKLIN, CARLA FUTCH,
JOHN DOE NUMBER ONE, and JOHN

DOE NUMBER TWO, in their
Individual and Official

Capacities as Officers of the
Brunswick Police Department,
and THE CITY OF BRUNSWICK,
GEORGIA,
Defendants.

ORDER

Plaintiff filed this action seeking damages pursuant to 42
U.S.C. § 1983.

Dkt. No. 1.

Before the Court is Defendants Jeffrey

Franklin, in his individual and official capacities, Carla Futch,
in

her

individual

and

official

capacities,

and

the

City

of

Brunswick's Motion for Summary Judgment, dkt. no. 34, pursuant to
Federal Rule of Civil Procedure 56.

briefed and is ripe for review.^

The Motion has been fully

For the reasons stated below.

Defendants' Motion is GRANTED.

1 Although Plaintiff has failed to respond to Defendants' Motion,
the Motion is ripe for review because Plaintiff's time to respond
has lapsed.
A0 72A

(Rev. 8/82)

BACKGROUND

All material facts set

forth

in

Defendants'

Statement

of

Undisputed Material Facts, dkt. no. 34-1, are deemed admitted for
the purpose of this Motion because Plaintiff has not controverted

them by filing his own statement of facts (or any other materials
in opposition of Defendants' Motion).

LR 56.1, S.D. Ga. {"All

material facts set forth in the statement required to be served by

the moving party will be deemed to be admitted unless, controverted

by a statement served by the opposing party.").
The Brunswick Exchange Club (the "Exchange Club") is a non

profit, local, civic organization, that holds an annual Brunswick
Exchange Club Fair.

Dkt. No. 34-1 S[ 2.

The Exchange Club owns

the real estate where the fair is conducted—none of the property

where the fair is conducted is owned by the City of Brunswick—and

the Exchange Club determines who can and cannot enter the fair.
Id. SISI 6-8.

Patrick Browning, as the "Fair Manager," coordinates

the Brunswick Exchange Club Fair and has done so for approximately
22 years.
with

the

Id. SI 1.
City

of

Pursuant to these duties. Browning coordinates
Brunswick

Police

department's officers work the fair.

Department

Id. SI 5.

to

have

the

For the 2015 fair,

the Exchange Club instructed the officers working the fair that

gang members, suspected gang members, and persons associated with
gang members were not permitted to enter the fair.

Id. SI 9.

On October 30, 2015, Plaintiff and his minor daughter entered

the Exchange Club fairgrounds and attempted to get in the ticket
line to buy tickets to enter the fair itself but were approached

by Defendant Officers Franklin and Futch.

Id. SISI 11, 12.

In 2015,

Defendant Officer Franklin was the gang investigator for the City
of Brunswick Police Department.

Id. S 14.

At that time. Defendant

Officer Futch was also an officer with the City of Brunswick Police
Department.

Dkt. No. 31 at 4, 5.

Officers Franklin and Futch had

arrested Plaintiff on a prior occasion, and Plaintiff had been

arrested on other prior occasions by the City of Brunswick Police
Department.

Dkt. No. 34-1

13, 19.

Further, Officer Franklin

was aware that Plaintiff was on a list as a known gang member.
Id. 5 15.

In fact. Officer Franklin had created that list and had

surveilled Plaintiff prior to the October 30, 2015 encounter.

Id.

5 16.

When Officers Franklin and Futch approached Plaintiff, they
told him that he was a known '"gang banger" and was not allowed to
enter the fair.

Id. 5 28.

The officers then told Plaintiff to

wait where he was, and the officers went and talked to a third-

person.

Id.

The officers and the third-person then approached

Plaintiff again and told him that he could not enter the fair
because he was a gang member.

Id.

After that. Plaintiff was free

to go and left the Exchange Club fairgrounds.

Id.

At that time.

Plaintiff believed he could go anywhere in the world other than

the JExchange Club fairgrounds.
Plaintiff filed

Id.

this action

to

recover

damages and

other

compensation, which Plaintiff claims is owed to him under 42 U.S.C.
§ 1983.
LEGAL STANDARD

Summary judgment is required where ''the movant shows that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law."
56(a).

the

Fed. R. Civ. P.

A fact is "material" if it "might affect the outcome of

suit

under

FindWhat.com,

the

658

governing

F.3d

1282,

law."
1307

FindWhat
(11th

Cir.

Inv^r

Grp.

2011)

(quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

v.

A

dispute is "genuine" if the "evidence is such that a reasonable
jury could return a verdict for the nonmoving party."

Id.

In

making this determination, the court is to view all of the evidence
in the light most favorable to the nonmoving party and draw all
reasonable inferences in that party's favor.

Johnson v. Booker T.

Washington Broad. Serv., Inc., 234 F.3d 501, 507 (11th Cir. 2000).

The moving party bears the initial burden of demonstrating
the absence of a genuine issue of material fact.
Catrett, 477 U.S. 317, 323 (1986).

Celotex Corp. v.

The movant must show the court

that there is an absence of evidence to support the nonmoving
party's case.

Id. at 325.

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.

The nonmovant may satisfy this burden in two ways.

First,

the nonmovant ^^may show that the record in fact contains supporting
evidence, sufficient to withstand a directed verdict motion, which

was

^overlooked or ignored' by the moving party, who has thus

failed

to

evidence."

meet

the

initial

burden

of

showing

an

absence

of

Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th

Cir. 1993) (quoting Celotex Corp., 477 U.S. at 332 (Brennan, J.,

dissenting))
.
additional

Second,

evidence

the

nonmovant

sufficient

to

^^may

withstand

come
a

forward

directed

verdict

motion at trial based on the alleged evidentiary deficiency."
at 1117.
with

with

Id.

Where the nonmovant attempts to carry this burden instead

nothing

more

"than

a

repetition

of

his

conclusional

allegations, summary judgment for the [movant is] not only proper
but required."

Morris v. Ross, 663 F.2d 1032, 1033-34 (11th Cir.

1981) (citing Fed. R. Civ. P. 56(e)).
DISCUSSION

Even though Defendants' Motion is unopposed, the Court must
address the Motion on its merits.

See United States v. 5800 SW

74th Ave., 363 F.3d 1099, 1101 (11th Cir. 2004) ("[A] district

court cannot base the entry of summary judgment on the mere fact

that the motion was unopposed, but, rather, must consider the
merits of the motion.").

I. The Individual Defendants are Entitled to Summary Judgment on
the Fifth Amendment Claims

Plaintiff's Complaint sets forth two Fifth Amendment claims

against

Defendants

Franklin

and

Futch

in

their

individual

capacities (the ''Individual Defendants"): Count IX for deprivation
of liberty, and Count X for deprivation of property.
merely

repeats

that

Defendants

violated

Count XIII

Plaintiff's

Fifth

Amendment rights as alleged in Counts IX and X and that Defendants

are being sued under 42 U.S.C. § 1983.
[the

Fifth

Amendment]

protects

These claims fail "because

a

citizen's

rights

against

infringement by the federal government, not by state government."
Weiland v. Palm Beach Cty. Sheriff's Office, 792 F.Sd 1313, 1328

(11th Cir. 2015).

Accordingly,' Defendants' Motion with respect to

Counts IX, X, and XIII is due to be GRANTED.

II. The Individual Defendan-bs are Entitled to Summary Judgment on
the First Amendment Claims

Plaintiff's Complaint sets forth five First Amendment claims
against

Defendants

Franklin

and

Futch

in

their

individual

capacities: Count I for prior restraint; Count II for freedom of
association;
freedom

of

Complaint

Count
travel;

also

III
and

for

freedom

Count

sets forth

a

V

of

for

assembly;

freedom

of

Count

IV

speech.

Count XI that merely

for
The

repeats the

allegations from Counts I - V and states that the claims in these
Counts are brought under 42 U.S.C. § 1983.

All of these claims

fail.

A. Count I: Prior Restraint

To be successful on a claim under 42 U.S.C. § 1983, Plaintiff

must prove: ^Ml) that the conduct complained of was committed by
a person acting under color of state law; and (2) that the conduct
deprived a person of rights secured by the Constitution or law of
the United States."

Morrison v. Washington Cty., Ala., 700 F.2d

678, 682 (11th Cir. 1983).

"'A prior restraint on speech prohibits

or censors speech before it can take place."
403 F.3d

1208, 1215 (11th Cir. 2005).

Cooper v. Dillon,
prior restraint on

expression exists when the government can deny access to a forum
for expression before the expression occurs."

United States v.

Frandsen, 212 F.3d 1231, 1236-37 (11th Cir. 2000).

The Individual Defendants argue that ^'the critical element

missing from Plaintiff's case is that his speech is not being
restrained by a governmental entity, nor is he being prevented
from presenting any expression in a government forum."
34-2 at 18.

Dkt. No.

Defendant has met its burden at this stage of showing

that there is no issue of material fact that a governmental entity
has

not

.restrained

association,

Plaintiff's

assembly,

right), and speech.

travel

(to

First
the

Amendment

extent

there

rights
is

such

of
a

Plaintiff was merely told he could not enter

a fairground on private property.

Plaintiff has failed to respond

and thus has not met its burden of showing a genuine issue of

material

fact

on

this

claim.

Accordingly,

the

Individual

Defendants' Motion on this claim is due to be GRANTED.

B. Count II and III: Freedom of Association and Assembly

Plaintiff alleges that his rights of freedom of association
and assembly were violated by him not being allowed to enter the
fair.

Plaintiff,

however,

assembling with anyone.

was not barred from associating or

He was simply barred from entering a

private establishment based on the policy of a private entity.
Likewise, Plaintiff has set forth no evidence in the record that

his right to intimate association was impacted by the Individual
Defendants' actions.

"The First Amendment prohibits the state

from denying its citizens the right to associate with whomever
they choose."
(llth

Cir.

Smith v. City of Greensboro, 647 F. App'x 976, 982

2016).

Under this

record

and

as a

matter of law.

Plaintiff s right of association was not violated and his right to
assemble was not violated because Plaintiff was free to associate

or assemble with whomever he pleased.

Accordingly, the Individual

Defendants' Motion on these claims is due to be GRANTED.
C. Count IV: Freedom of Travel

Plaintiff

next

claims

that

his

First

Amendment

right

of

freedom of travel was violated by Defendants Franklin and Futch in
their individual capacities.

The Individual Defendants' argue
8

that there is no First Amendment right of freedom of intrastate
travel, which is what occurred here.

No court in this circuit has

recognized a First Amendment right of freedom of travel, let alone
intrastate travel.

Therefore, there is no jurisprudence by which

this claim can be analyzed.

Because the Individual Defendants

have met their burden of showing that Plaintiff did not have a

constitutional right violated regarding this claim and because
Plaintiff has not met his burden of showing that a reasonable jury
could find that he had a constitutional right of freedom of travel
that

was

violated,

his

claim

fails

as

a

matter

of

law.

Accordingly, the Individual Defendants' Motion on this claim is
due to be GRANTED.

D. Count V: Freedom of Speech
Plaintiff s final First Amendment claim alleges that his

right to freedom of speech was violated when he was refused entry
to the fair.

''"To state a retaliation claim, the commonly accepted

formulation requires that a plaintiff must establish first, that
his speech or act was constitutionally protected; second, that the
defendant's retaliatory conduct adversely affected the protected

speech; and third, that there is a causal connection between the
retaliatory actions and the adverse effect on speech."
Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005).

Bennett v.

Here, Plaintiff's

speech or act was not constitutionally protected.

Defendants'

actions were taken because of Plaintiff's gang affiliation status.

which is not a speech or act that is protected under the First
Amendment.

Further, Plaintiff was not engaged in speech at all.

He was merely trying to enter private property.

Thus, whether

Plaintiff's claim is couched as a retaliation claim for engaging

in protected speech or as a prior restraint claim, the claim fails.
Accordingly, the Individual Defendants' Motion on this claim is
due to be GRANTED.

E. Count XI

Count XI merely restates that Counts I-V are brought under
§ 1983.

This Count fails not only because it is redundant but

because it is based on Counts I-V which are all due to be dismissed.

Accordingly, the Individual Defendants' Motion on this claim is
due to be GRANTED.

Ill. The Individual Defendants are Entitled to Summary Judgment on
the Fourth Amendment Claims

Plaintiff's

Complaint

sets

forth

three

Fourth

Amendment

claims against Defendants Franklin and Futch in their individual
capacities: Count VI for unreasonable detention; Count VII for
unreasonable seizure; and Count VIII for unreasonable exclusion.

The Complaint also sets forth a Count XII that merely repeats the
allegations from Counts VI - VIII and states that the claims in
these Counts are brought under 42 U.S.C. § 1983.
claims fail.

10

All of these

^'The

Fourth

through the

Amendment,

which

is applicable to the

States

Fourteenth Amendment, guarantees the right against

unreasonable searches and seizures."

Brown v. City of Huntsville,

Ala., 608 F.3d 724, 734 n.l5 {11th Cir. 2010) (citations omitted).

^^There are three broad categories of police-citizen encounters for

purposes

of our

Fourth

Amendment analysis:

(1)

police-citizen

exchanges involving no coercion or detention; (2) brief seizures

or investigatory detentions; and (3) full-scale arrests."

United

States V. Partin, 634 F. App'x 740, 746 (11th Cir. 2015) (citation
omitted).

''The first type of encounter, often referred to as a

consensual encounter, does not implicate the Fourth Amendment."
United States v. Jordan, 635 F.3d 1181, 1186 (11th Cir. 2011).

"A

seizure occurs for Fourth Amendment purposes, however, ^only when,

by means of physical force or a show of authority, [a person's]
freedom of movement is restrained.'"

United States v. Perez, 443

F.3d 772, 778 (11th Cir. 2006) (emphasis added) (alteration in
original) (quoting Craiq v. Singletary, 127 F.3d 1030, 1041 (11th
Cir. 1997)).

"Factors relevant to this inquiry include, among

other things:

whether a citizen's path is blocked or impeded;

whether identification is retained; the suspect's age, education
and

intelligence;

the

length

of

the

suspect's

detention

and

questioning; the number of police officers present; the display of
weapons; any physical touching of the suspect, and the language

11

and tone of voice of the police."

Id. {internal quotation marks

and citation omitted).
The encounter between Plaintiff and the Individual Defendants

was nothing more than a police-citizen exchange, which ^Moes not

implicate the Fourth Amendment." Jordan, 635 F.3d 1186.

Plaintiff

testified that he was approached by Futch and Franklin, that they
told Plaintiff that he could not enter the fair because he was a

known gang member, that they told Plaintiff to wait where he was,
left Plaintiff, and went to talk with a third-person, that the
three then approached Plaintiff and again told him he could not
enter the fair, and that Plaintiff then left the fair

incident.

without

Plaintiff was never told he could not leave, his path

was never blocked or impeded, there were three officers present
for a

short exchange, his identification

Plaintiff was never touched.

was never taken, and

All factors point to the exchange

merely being a consensual encounter in which the Fourth Amendment
does

not

come

into

play.

The

strongest

and

only

fact

in

Plaintiff s favor is that Futch and Franklin told him to stay where

he was when they went to talk to the third-party, but this does
not suggest that Plaintiff could not have left the fairgrounds at
that time.

At most, one can reasonably infer that Plaintiff was

not free to enter the fair or wander about the private property of

the Exchange Club.

Because the Fourth Amendment was not implicated

by the consensual encounter between the Individual Defendants and
12

Plaintiff,

the

Individual

Defendants'

Motion

with

respect

to

Counts VI-VII and XII is due to be GRANTED.

V. The City of Brunswick and Futch and Franklin in Their Official
Capacities are Entitled to Summary Judgment
Defendants Futch and Franklin in their official capacities

are equivalent to the City of Brunswick, ^Mb]ecause suits against
a municipal officer sued in his official capacity and direct suits
against

municipalities

are

functionally

equivalent,

there

no

longer exists a need to bring official-capacity actions against
local government officials, because local government units can be
sued directly."
Cir. 1991).

official

As

Busby v. City of Orlando, 931 F.2d 764, 776 (11th
such.

capacities

Defendants

and

Defendant

Futch

and

the

City

Franklin in

of

their

Brunswick

are

analyzed together as the ^'City Defendants."

^^The Supreme Court has placed strict limitations on municipal
liability under § 1983.

A county's liability under § 1983 may not

be based on the doctrine of respondeat superior." Grech v. Clayton
Cty.,

Ga.,

omitted).

"official

335

F.3d

1329

(11th

Cir.

2003)

(citations

''"Indeed, a county is liable only when the county's

policy'

(citation omitted).

to

1326,

establish

a

causes

a

constitutional

violation."

Id.

"''A plaintiff . . . has two methods by which

[municipal's]

policy:

identify

either

(1)

an

officially promulgated [municipal] policy or (2) an unofficial
custom or practice of the [municipal] shown through the repeated
13

acts of a final policymaker for the [municipal]."
omitted).

Id. (citations

''^Under either avenue, a plaintiff (1) must show that

the local governmental entity, here the [City of Brunswick], has
authority and responsibility over the governmental function in
issue and (2) must identify those officials who speak with final

policymaking
concerning

authority
the

act

for

alleged

that
to

constitutional violation in issue."

local
have

governmental

caused

the

entity

particular

Id. (citations omitted).

Here, Defendants have met their burden by showing that there

is no evidence in the record establishing that the City Defendants

either had ''authority and responsibility over the governmental
function in issue," id., i.e., the Exchange Club fair's admittance

requirements (more broadly the Exchange Club fair), or that a city
official has been identified whom has final policymaking authority

over the acts alleged to have caused Plaintiff's constitutional
rights to be violated.

Indeed, Plaintiff has not responded to

Defendants' Motion, and thus he has not met his burden at this

stage.

Accordingly, the City Defendants' Motion is due to be

GRANTED with respect to all claims.
CONCLUSION

For these reasons. Defendants' Motion for Summary Judgment is

GRANTED with respect to all claims.
to close this case.

14

The clerk of court is DIRECTED

so ORDERED, this 31st day of January, 2019.

LISA GODBgY WOOD, JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN

A0 72A

(Rev. 8/82)

15

DISTRICT OF GEORGIA