Channel v. Smith et al

Filing 16

ORDER denying 6 Motion for Judgment on the Pleadings. Defendants John Does 1-3 are terminated. The parties are directed to meet and confer as required by LR 26.1 and submit a joint Rule 26(f) Report within 14 days of the date of this order. Signed by Judge Dudley H. Bowen on 3/23/2018. (pts)

FILED

U.S. DISTRICT COURT
AU''U3T'* IJIV

IN THE UNITED STATES DISTRICT COURT FOR THe'

SOUTHERN DISTRICT OF GEORGIA 2018HAR23 AHll-30
DUBLIN DIVISION

CLERK
SO

RONALD CHANNEL,

Plaintiff,
CV 317-060

vs.

JOHNNY SMITH, in both his
individual and official

capacities, LAURENS COUNTY,
and JOHN DOES 1-3,
Defendants.

ORDER

In the captioned matter, Defendants Johnny Smith and
Laurens County have moved for judgment on the pleadings as to
all of Plaintiff's federal and state law claims arising out an
altercation

between

Defendant

Smith

and

Plaintiff

Ronald

Channel.

On August 3, 2015, Plaintiff, a pre-trial detainee, was
escorted unrestrained through the Laurens County Jail by a

Laurens County Sheriff's Deputy, Defendant Johnny Smith.^ The
subject incident that occurred between Plaintiff and Defendant
Smith is captured on a videotape.

^

Plaintiff claims not only

Defendant Smith was also escorting another inmate at that time

but the other inmate was not involved in the incident.

This is not

to say that the presence of two unrestrained inmates cannot factor
into the ultimate analysis of excessive force, but for
purposes, the second inmate is not a consideration.

present

that the altercation was unnecessary, excessive and provoked

by Defendant Smith, he also claims to have severely injured
his back during the incident, an injury to which Defendants
were deliberately indifferent.

Thus, Plaintiff has asserted

federal claims of excessive force and deliberate indifference

under 42 U.S.C. § 1983 and state law claims of failure to

provide medical care, negligence and battery.
Defendants

removed

October 25, 2017.

Plaintiff's

case

to

this

Court

on

On November 1, 2017, Defendants filed the

present motion for judgment on the pleadings and an answer to

the

complaint.

Defendants

attached

to

their

answer

Plaintiff's medical records from the Laurens County Jail as

well as the videotape.

(Ans., Doc. No. 4, Exs. 3 & 4.)

Defendants also sought and received a stay of this action

pending a ruling on the motion for judgment on the pleadings.
(See Order of Nov. 6, 2017, Doc. No. 8.)

Thus, no discovery

has been conducted in the case.

A motion for judgment on the pleadings under Federal Rule
of Civil Procedure 12(c), like a motion to dismiss under Rule

12(b)(6), does not test whether the plaintiff will ultimately
prevail on the merits of the case.
sufficiency of the complaint.

236 (1974).

Rather, it tests the legal

Scheur v. Rhodes. 416 U.S. 232,

''Judgment on the pleadings is appropriate only

when the plaintiff can prove no set of facts in support of his

claim which would entitle him to relief."

Horslev v. Feldt,

304 F.3d 1125, 1131 (ll*^^ Cir. 2002) {quoted source omitted).
In consideration of the motion, the Court must accept as true

all facts alleged in the complaint and construe all reasonable
inferences in the light most favorable to the plaintiff.

See

Hoffman-Puah v. Ramsey, 312 F.3d 1222, 1225 (11^^ Cir. 2002).
Motions for judgment on the pleadings "have their most utility
when 'all material allegations of fact are admitted in the

pleadings and only questions of law remain.'" Mathis v.

Velsicol Chem. Corp.. 786 F. Supp. 971, 973 (N.D. Ga. 1991)
(quoting 5A Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure § 1367, at 510 (1990)).

In the case at bar. Defendants' motion does not attack

the sufficiency of Plaintiff's complaint per se; rather.
Defendants claim that the video and medical records attached

to

their

answer

demonstrate,

Plaintiff

cannot

establish

as

his

a

matter

claims

entitled to certain immunity defenses.

and

of

law,

that

that

they

are

Stated another way.

Defendants ask the Court to review the video and the medical

records

and

declare

from

the

facts

established

by

these

materials that their conduct was lawful in all respects.

In considering a motion for judgment on the pleadings,
the Court will consider only "the substance of the pleadings
and

any

judicially

noticed

facts."

Hawthorne

v.

Mac

Ad-iustment. Inc.. 140 F.3d 1367, 1370 (11*^^ Cir. 1998).

To

determine what is part of the pleadings, the Eleventh Circuit
follows

an

"incorporation

by

reference"

rule

whereby

a

document attached to an answer may be considered if it is (1)
central

to

the

plaintiff's

Horsley. 304 F.3d at 1134.
true

that

Plaintiff

claim,

and

(2)

undisputed.

With respect to the video, it is

alleges

in

his

complaint

that

the

"relevant interactions between Plaintiff and Defendant Smith

was video recorded."

(Compl., Doc. No. 1-1, H 12.)

However,

the video is not central to his claims because Plaintiff can

state a claim for excessive force regardless of whether the
altercation was video recorded or not.
of the medical records.

of care.

The same can be said

Plaintiff's claim is one of a failure

While medical records eventually may undermine his

claim, his claim is not in any way dependent upon the medical
records.

Also, according to Plaintiff, the medical records

may not be complete; thus, the Court may not have the full

picture

of

Plaintiff's

medical

care.

In

short,

while

Defendants attach the video and the medical records to their

answer, this Court concludes that they are matters outside of
the

pleadings.

Without

consideration

of

these

items.

Defendants have not shown that Plaintiff cannot state a claim
for relief.

Moreover, whether an officer has used excessive force is

determined

by

asking

"whether

the

officer's

actions

are

objectively reasonable in light of the facts and circumstances
confronting him, without regard to his underlying intent or
motivation." Zivoiinovich v. Earner. 525 F.3d 1059, 1072 (11*^^
Cir. 2008) (quoted source omitted).

The Court must assess

"whether a reasonable officer would believe that this level of

force is necessary in the situation at hand."

284 F. 3d 1188, 1197 (11*'^ Cir. 2002).
reasonableness

of

an

officer's

use

of

Lee v. Ferraro.

Analysis of the
force

"requires

a

careful balancing of ^the nature and quality of the intrusion
on the individual's Fourth Amendment interests' against the

countervailing governmental interests at stake."
Connor, 490 U.S. 386, 396 (1989).

Graham v.

The Court has viewed the

videotape several times and concludes that the claim of
excessive

force

boils

down

to

less

interaction between the parties.

than

ten

seconds

of

At this juncture in the

case, the Court will not make a reasonableness determination

precluding Plaintiff's claim as a matter of law based upon
this ten-second interaction alone.

The procedural mechanism

of Rule 12(c) is simply not intended to resolve the claim as
presented herein.

The filing of the motion is not for naught because
Plaintiff

clarified

the

exact

nature

of

his

claims.

In

response

to

Defendants'

arguments

in

brief,

Plaintiff

responded as follows:

Defendant
Smith,
while
having
custodial
control of Plaintiff pushed Plaintiff to start a

fight
with
him.
After
seriously
injuring
Plaintiff's back and causing him extreme difficulty
to move (he is now in a medical prison), Defendants
failed to provide him adequate medical care.

This amounts to state law claims against both
Defendant Laurens County and against Defendant
Smith in his individual capacity, and federal
claims against Defendant Smith, for violations of
Plaintiff's federal constitutional rights. . . .
To the extent Defendants are arguing that
Plaintiff is pursuing claims against any other
entities. Defendants are mistaken.

(Pl.'s Br. in Resp. to Defs. Mot. for J. on the Pleadings,
'
Doc. No. 12, at 2.)

In light of this statement, the Court

DISMISSES Defendants John Does 1-3.

The Clerk is directed to

TERMINATE the John Doe Defendants in the case record.

Further, because Plaintiff's federal claims of excessive

force and deliberate indifference are only against Defendant

Smith, Defendant Smith may only be sued in his individual

capacity.

A suit against a sheriff's deputy in his official

capacity is a suit against the sheriff, not the county.
Manders v. Lee. 338 F.3d 1304, 1311 (ll'^*^ Cir. 2003) (en banc).

Because the Sheriff of Laurens County is not a party to this
lawsuit. Plaintiff has not stated a federal claim against
Defendant Smith in

his official

capacity.

Consequently,

Plaintiff's federal claims of excessive force and deliberate

indifference will proceed only against Defendant Smith in his
individual capacity.

Finally, Defendants contend that Plaintiffs' claims are
barred by the applicable statute of limitation.

The statute

of limitation for all of Plaintiff's claims, both state and

federal,

is

two

years.

O.C.G.A.

§

9-3-33

(statute

of

limitation for personal injury suit is two years); Rozar v.
Mullis,

85

F.3d 556,

561

(11*^^ Cir.

1996) (holding

that

Georgia's two-year statute of limitation applies to § 1983
claims); Thompson v. Corrections Corp. of Am., 485 F. App'x

345, 346-47 (ll*"^ Cir. 2012) (same).
In this case. Plaintiff's cause of action accrued on

August 3, 2015; thus, the statute of limitation ran on August
3, 2017.

While Plaintiff filed the lawsuit on July 26, 2017,

prior to the limitation period, in Georgia the mere filing of
a complaint does not toll the statute of limitation.

Rather,

to stop the limitation clock in Georgia, a plaintiff must file
and serve the defendant (1) within five days, or (2) after

five days if the plaintiff is reasonable and diligent in
perfecting service.

Jackson v. Nguven. 484 S.E.2d 337, 338

(Ga. Ct. App. 1997)^ (stating that if the plaintiff is in any
way guilty of laches, then the case would be time-barred); Nee
V. Dixon. 405 S.E.2d 766, 767 (Ga. Ct. App. 1991) ("Where

^

overruled on other grounds. Giles v. State Farm Mut. Ins. Co..

765 S.E.2d 413 (Ga. Ct. App. 2014).

service is made after the expiration of the applicable statute

of limitation, the timely filing of the complaint tolls the
statute only if

the

plaintiff

shows that he acted in a

reasonable and diligent manner in attempting to [e]nsure that
a proper service was made as quickly as possible. . . . The
determination of whether the plaintiff was guilty of laches in

failing to exercise due diligence in perfecting service after
the running of the statute of limitations is a matter within
the

trial

court's

discretion

.

.

.

(quoted

source

omitted)).

The

Georgia

service

requirement

does

not

Plaintiff's federal claims under § 1983 however.

apply

to

Tillman v.

Georgia,'466 F. Supp. 2d 1311, 1316 (S.D. Ga. 2006) (relying
upon West v. Conrail, 481 U.S. 35, 38-39 (1987));

Johnson v.

Conwav. 2015 WL 4077731, *8-9 (N.D. Ga. July 6, 2015) (citing
Tillman),

vacated

in

part

on

other

grounds

upon

reconsideration. 2015 WL 13307482 (N.D. Ga. Aug. 31, 2015);
accord Flood v. Citv of Jacksonville. 263 F. Supp. 3d 1213,

1222-23 (N.D. Ala. 2017); Robinette v. Johnston, 637 F. Supp.
922, 924-25 (M.D. Ga. 1986) (finding that the diligence in
service requirement under Georgia law does not apply to the
plaintiff's § 1983 claim).

Thus, Plaintiff's federal claims

under S 1983 are not time-barred.

Plaintiff's state law claims, however, are subject to

Georgia's diligence in service requirement. Robinette. 637 F.
Supp. at 925 (citing Cambridge Mut. Fire Ins. Co. v. City of
Claxton. 720 F.2d 1230, 1233 (11*^^ Cir. 1983)).

This is

because an action based on state law which would be barred in

the state courts should not be permitted to proceed in federal

court solely because the state law claim is in federal court
through supplemental jurisdiction. See id. ("Plaintiff should
not be able to circumvent Georgia law, even inadvertently, by

attaching a state claim to a federal cause of action.").
Thus, this Court must examine whether Plaintiff in the instant

case was diligent in service of the complaint.
As mentioned. Plaintiff filed his complaint on July 26,
2017.

Defendant Smith was not served until September 26,

2017, two months later.

Defendant Laurens County was not

served until October 23, 2017, nearly three months later.

In

response to this significant time lapse, Plaintiff contends
that

he

sheriff's

did

all

office,

that

the

he

must

serving

when

he

entity,

ensured

received

that

a

the

proper

summons and complaint for service on the same day the suit was
filed, July 26, 2017.

In support thereof. Plaintiff cites Lee

V. Kim. 622 S.E.2d 99 (Ga. Ct. App. 2005),^ and Richardson v.
Greyhound Lines. Inc.. 2014 WL 12489759 (N.D. Ga. Nov. 24,
2014).

^

overruled on other grounds, Giles. 765 S.E.2d 413
9

Having

reviewed

these

cases,

the

Court

agrees

that

Plaintiff '^did all that was required of him when he supplied
the

sheriff's

office

with

the

correct

service

[Defendants] with the filing of the complaint."
Kim.

622

S.E.2d

12489759, at *2).

at

101

(quoted

in

address

for

See Lee v.

Richardson.

2014

WL

Defendants herein attempt to distinguish

Lee V. Kim and Richardson by pointing out that the time lapse
attributable to the sheriff in those cases was only two weeks,
as opposed to two and three months.

Defendants then insist

that given the more significant time lapse in this case.

Plaintiff is required to show greater diligence by taking
"steps to determine why no service had been made."
Reply Br. at 12.)

(Defs.
'

The Lee v. Kim court did not so hold.

Rather, the Georgia Court of Appeals stated that "a plaintiff
who gives the correct address to the sheriff (and who has no
reason to believe there is a problem with service) may rely on

the sheriff's office to timely serve the process papers." 622
S.E.2d at 101.

In fact, the Georgia court cited with approval

Morse v. Flint River Cmtv. Hosp.. 450 S.E.2d 253, 255 (Ga. Ct.

App. 1994), which stated: "Until [a plaintiff] receive[s] some
notice that the sheriff [i]s unable to locate a defendant,

that a defendant's address [i]s incorrect, or that service

[i]s not possible for some other reason, [the plaintiff] could
reasonably rely on the clerk and the sheriff to fulfill their
duties."

622 S.E.2d at 101.

The Lee v. Kim court also cited

10

with approval Jackson v. Nauven. 484 S.E.2d at 339, which
reversed a trial court's dismissal of an action on statute of

limitation grounds because "[t]he trial court . . . made no
finding of laches, lack of diligence, or any other factor

other than that the plaintiffs had relied on the sheriff to
perfect service in the time expressly directed by statute."
622 S.E.2d at 101 (emphasis added).
bar.

Defendants'

only

evidence

Similarly, in the case at

of

lack

of

diligence

on

Plaintiff's part is that Plaintiff relied on the sheriff to
perfect service.

According to the Georgia Court of Appeals,

this reliance as the sole basis for a finding of laches is not
sufficient.

Therefore, Plaintiff's state law claims are not

barred by the statute of limitations.
Upon the foregoing, Defendants' motion for judgment on

the pleadings (doc. no. 6) is DENIED.

As directed by the

United States Magistrate Judge in the Order of November 6,
2018, the parties shall confer as required by Local Rule 26.1
within seven (7) days hereof, and they shall submit a joint

Rule 26(f) Report within fourteen (14) days hereof.
ORDER ENTERED

at Augusta, Georgia,

this

^
day of

March, 2018.

UNITED STATES DISTRICT JUDGE

/

11