McMullen et al v. City of Port Wentworth Georgia et al

Filing 52

ORDER granting 28 Motion for Summary Judgment and 32 Motion for Summary Judgment. As a result, Plaintiffs' claims are DISMISSED. The Clerk of Court is DIRECTED to close this case. Signed by Judge William T. Moore, Jr on 09/26/2019. (evk)

, •
1

IN THE UNITED STATES DISTRICT COUf-1
THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
: •. ~ I
~ ;.
11;

MARCUS MCMULLEN and EMERY MAE
MCMULLEN ,

I

1 :.L·, .

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.

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2

2...----'

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Plaintiffs ,
CASE NO . CV417 - 067

V.

CITY OF PORT WENTW
ORT H GEORGIA ,
OFFICER CHASSITY D. PELLEGRINO ,
SERGEANT BRIAN PHINNEY , and
CHI EF OF POL I CE BRIAN LIBBY ,
Defendants .

0 RD ER

Before
Wentwor th ,
Ph i nney

a re

Cou rt

the
Georgia

(" City

of

Defendants
Port

City

Wentworth" ) ,

( " Phinney" ) , and Chief Li bby ' s

Port

of

Sergeant

(" Libby" ) Motion for

Summar y Judgment (Doc . 28) and Defendant Etzel ' s 1 M
otion for
Summary

Judgment

Defendants
Motion

City

for

Defenda n t

(Doc .
of

Summary

Port

32) .

For

the

Wentworth ,

Judgment

(Doc .

following

reasons ,

Phinney ,

and

28)

GRANTED

is

Etzel ' s Motion for Summary Judgment

(Doc .

Libby ' s

32)

and
is

GRANTED .

Defendant Chassity D. Pellegrino has represented in her
Motion for Summary Judgment that she has married since the
incident at issue in this action and her surname is now
Etzel . (Doc . 32 at 1 . ) The Court will refer to Defendant
Pellegrino by her current surname , Etzel .

1

BACKGROUND 2

This case sterns from the arrest of Plaintiffs in April
2015 .

On

Phinney

April

of

6,
City

the

responded to a
at

the Sai

2015 ,
of

Defendant
Port

Wentworth

call involving a

Food Mart

Etzel

and

Police

Defendant
Department

reported domestic dispute

convenience

store .

(Doc .

at

44

1. )

Defendants Etzel and Phinney were not provided the names or
descriptions

of

the

domestic dispute .
arrived on

persons

(Id . at 2 . )

scene and

saw

involved

in

the

reported

Defendants Etzel and Phinney

Plaintiff Marcus

McMullen

("Mr.

McMullen" ) in his car in the store ' s parking lot , which was
parked

directly

Plaintiff
nephews

outside

Emery
of

Mae

Mr .

the

front

of

McMullen

("Mrs .

Mrs .

McMullen

and

the

store .

McMullen")
were

and

inside

(Id . )
two
the

convenience store when Defendants Etzel and Phinney arrived
on scene .

(Id . ) Defendant Etzel proceeded directly into the

convenience
dispute
store .

store

to

investigate

and performed a
(Id . )

sweep of

reported
the

domestic

inside of the

Defendant Phinney approached Mr . McMullen and

spoke with Mr . McMullen .
that

full

the

Defendant

(Id . at 2-3 . ) Mr. McMullen stated

Phinney asked whether he had witnessed the

In this Order , the facts are set forth in the light most
favorable to Plaintiffs , the non-moving party .

2

2

dispute ,
(Id .

3;

McMullen responded in the negative . 3

to which Mr .

at

Doc .

entered

the

Phinney

entered

28 ,

convenience
the

and ordered Mr .

Defendant

with

Mrs .

McMullen
saw

at

store .

McMullen to

time ,

and

6

Etzel
and

44.)

(Doc .

convenience

this

counter

Attach.

Mr .

44

at

store

exit

after

the

Defendant

4. )

store .

observed Mr .

their

McMullen

nephews

Phinney

Defendant

Mr .

McMullen

(Id . )

McMullen
near

was

then

During

standing

the

checkout

standing

by

Mr.

McMullen .

(Doc . 45 at 4 . ) As Defendant Etzel walked towards

the

of

door

Phinney

tell

the

convenience

Phinney holds the door open and gestures fo r

Mr .

McMullen

to

McMullen

" [h]e
the

the

store .

to

leave

the

Defendant

Etzel

store

outside ,

(Id . )

McMullen and Defendant

[Defendant Phinney]

time

said

Defendant

Defendant

leave

"I

heard

as

Mr.

McMullen

she

c ' mon "

approached Mr .

Mr .

store ,

by

Et zel

Phinney and directed
telling

said outside ."
was

Defendant

Mr .

McMullen

(Id . at 5 . ) During

responding

to

the

domestic

Defendants also conten d that Defendant Phinney told Mr .
McMullen that the officers were on scene to investigate a
reported domestic disturbance call and told Mr . McMullen to
remain outside the store and that he , Defendant Phinney ,
would enter the st ore and br i ng out Mrs . McMul len and the
two n ephews .
(Doc . 4 4 at 3 . ) Because Plaintiffs contest
these facts and contend that Mr . McMullen was never told to
r emain outside the store , the Court does n ot in clude these
facts in the background of this case or consider them in
evaluating the motions for summary judgment .

3

3

disturbance

call

at

Sai

Food

Mart ,

her

body

camera

was

act ivated and recording .
In the video ,
and

tells

him

Defendant Etzel appr oaches Mr . McMullen

" [h]e

said

Go . "

outside .

(Doc .

28 ,

Attach . 4 at 8 : 05-08 . ) Defendant Etzel , while holding a pen
in her left hand ,
(Id . )

Plaintiffs

then places
allege

her hands on Mr .

that

during

this

McMullen .
exchange ,

Defendant Etzel " stabbed" Mr . McMullen with her pen . In the
video ,

Defendant

Etzel

can be

seen

ho lding

a

pen

left hand when she touches Mr . McMullen . However ,

in

her

at 8 : 07 ,

the video shows that Defendant Etzel ' s left hand is spread
wide across the left side of Mr .
pen laying flat agai nst Mr .
by

Defendant

Thus ,

Etzel ' s

palm .

McMullen ' s

McMullen ' s
(Doc .

28 ,

back with the

back held in place
Att ach .

4 at

8 : 07 . )

while this Court credits Mr . McMullen ' s account that

the pen " stabbed" him ,

the contention that Defendant Etzel

used her pen to intentionally stab him is not supported by
the body cam video . 4 The video supports the facts that the

While this Court must accept the Plaintiffs ' facts as true
for the purposes of ruling on the motions for summary
judgment ,
" ' [w]hen opposing parties tell two different
stories , one of which is blatantly contradicted by the
record [as with a video recording of the incident] , so that
no reasonable jury could believe it , a court should not
adopt that version of the facts .'"
Manners v . Cannella ,
891 F . 3d 959 , 967 (11th Cir . 2018)
(alteration adopted)

4

4

pen

poking

incidental

or
to

stabbi ng

M .
r

in

Etzel

Defendant

McMullen
placing

the

her

arm

was

on

Mr .

hands

McMullen to guide him from the convenience store .
After

Defendant

Etzel

directs

Mr .

McMull e n

both verbally and with her hands on h is body ,

o ut side ,

Mr . McMull e n

turns around to face her and says " [ w] ai t

a minute . "

4 4 at

gestures towards

the

5. )

open

Officer Etzel d r aws
convenience

sto re

" [g]o outside right now .
8 : 09 - 10 . )

door ,

Go ."

and

(Id .;

tells

Doc .

Mr .

28 ,

McMullen

Attach .

Defendant Etzel then turns towards Mrs .

and points her hand ,
you too ,

her taser ,

don ' t

holding a

touch me . "

pen ,

(Doc . 28 ,

at

(Doc .

4 at

McMullen

her and says

Attach .

" and

4 at 8 : 12-1 4 . )

Defendant Etzel then faces Mr . McMullen again and tells him
" [g] o outside

if an officer asks you to go outside ,

you go outside ."

(Doc . 44 at 6 ;

Doc . 28 , Attach . 4 at 8 : 14-

17 . ) Mr . McMullen replies " [f]or what? " and Defendant Etzel
resp onds

" [ c] a use

and we don ' t

we ' re

Mr . McMullen responds ,
at

something

roll up into a food mart and say

talk to you right now .'

(Id .

inves tigating

8 : 26 . )

"

(Doc .

28 ,

Attach .

right

' hey ,

now

let me

4 at 8 : 18-2 5 . )

" I ' m not asking to talk to anybody ."

Defendant

Etzel

points

(quoting Scott v . Harris , 550 U. S .
176 9 , 177 6 , 16 7 L . Ed . 2 d 6 8 6 ( 2 0 0 7 ) ) .

5

at

372 ,

the

380 ,

door

127

being

S.

Ct .

held

open

by

right now ."
my

family

Defendant

Phinney and

repeats

" [ g] o

outside

(Id . at 8 : 26 - 27.) Mr . McMullen tells her "I got
here

with

me . "

Defendant

Eztel

repeats ,

while

continuing to gesture towards the door with her left hand ,
" Go outside right now . "

(Id . at 8: 28 - 2 9.) A female voice is

then heard on the video saying " [y] eah ,
(Id .

at

8 : 30 . )

Defendant Etzel

we ' re going out . "

repeats " Go outside . "

(Id .

at 8 : 31 . ) After this ins truction, Mr . McMullen turns around
to face the checkout counter of the store , puttin g his back
II

towards Defendant Etzel , and says " [y]ou know what
(Id . at 8 : 31-33 . )

Plaintiffs contend that Mr . McMullen was attempting to
gather

his

family

Etzel .

(Doc .

4 4 at

when
7. )

he

to

Defendant

According to Plaintiffs ,

Defendant

Etzel then "forcibly grabs ,
tases

Mr .

grabbing
(Doc .

McMullen "
Mr .

and

McMullen

turned

shoves,

that

and

his

back

and without hesitation ,

"Officer

slamming

him

Phinney
to

joins

the

in ,

ground ."

45 at 3 . ) According to Defendants , after Mr . McMullen

turns away from Defendant

Etzel,

Defendant Etzel places her

hands on Mr . M
cMullen to direct him outside after which he
turns

quickly

elbow ."
Phinney ,

(Doc .

towards
4 4 at

concerned

her

7. )
about

and

" aggressively

raised

Defendants contend that
Mr .

6

McMullen

harming

his

Defendant
Defendant

Etzel ,

chose

to

physically

take

down

Mr .

McMullen .

(Doc .

32 , Attach. l a t 7) .
The

video

depicts

Defendant

Etzel

McMullen with the pair coming so close
body

cam

is

obscu r ed

by Mr .

approaching

Mr .

together that

McMullen ' s

shirt .

the

(Doc .

28 ,

Attach . 4 at 8 : 33-38 . ) Defendant Etzel touches him and says
"

" go outside before .
McMullen
pushes
(Doc .

turns

him
28,

credits

and

towards
then

Attach .

Defendant

the

4 at

Plaintiffs '

(Id . ) In quick succession , Mr .

taser

is

8 : 33-38 . )

account

Etzel ,

that

Defendant

heard

being

deployed .

Additionally ,
Mr .

Etzel

the Court

McMullen

did

not

aggressively raise his elbow or fist because such facts are
not clearly contradicted by the body cam video .
The video goes
McMullen

on

Defendant
him ."

the

to

floor

Phinney

(Doc .

on

show

of

the

instructing

45 at 10 ;

Doc .

Defendant

convenience

Defendant

28 ,

Phinney and Mr .

Attach .

store

Etzel

to

with
" cuff

4 at 8 : 40 - 44 . )

Defendant Etzel has her hand on Mr . McMullen ' s arm ,

As

who is

still lying on the floor , Mrs . McMullen approaches the two
and rea c hes out her arm .
at

8 : 4 5-4 6 . )

" get off me !"

Defendant
(Doc .

(Doc . 45 at 12 ; Doc . 2 8 , Attach.
Etzel

44 at 8 ;

shouts
Doc .

at

28 ,

Mrs .
Attach .

McMullen

4
to

4 at 8 : 47)

and Mrs . McMullen then stumbles into a drink containe r near

7

t he

chec kout

According

counter

(Doc .

Attach .

Defendant

Plaintiffs ,

to

28 ,

4

Etzel

McMullen

into the cashier station and Mrs .

touched

Defendant

contention
Etzel.

that

(Doc .

Defendant

However ,

Etzel .

Mrs .

M
cMullen

at

8 : 47 - 48) .

pushed

Mrs .

McMullen never

Defendants
not

d id

deny

Defendant

touch

the

4 4 at 8 . ) Mr . M Mulle n i s then ha n dcuffed and
c

Phinney asks Mr .

McMullen

if

" he was

physically

hurt " and Mr . McMullen responds in the affirmative .

(Id . at

9.)

Defendant Phinney calls for emergency medical services

to

come

to

the

scene

McMulle n

to

go

outside

and

Defendant

the

Etzel
(Id . )

store .

orders
Once

Mrs .

o u tside ,

Defendant Etzel approaches Mrs . McMullen and asks her " was
there any reason you decided to touch me in there? "
44

at

10 ;

Doc .

28 ,

responds ,

" [n]o ,

I

10 ;

28 ,

Doc .

Attach .

4 at

11 : 43 - 47 . )

Mrs .

just wanted to be with him . "

Attach .

4 at

11 : 50-5 1. )

(Doc .

McMullen

(Doc . 44 at

Defendant

Etzel t h e n

asks Mrs . McMullen if she had her own phone that she could
call someone to come pick up the kids because Mrs . McMullen
was

going

to

informed t h at
havi n g

touched

jail

as

we l l .

she would be
Defe n dant

(Doc .

44

arrested ,

Etzel

and

at

10 . )

Mrs .
states

After being

McMullen denies
that

wanted to touch him and then you pulled me off ."
Attach .

4 at 12 : 31 - 32 . )

Defendant

8

Etzel then

she

" just

(Doc .

28 ,

replies that

" [a]nd

I

did .

I

pushed

you

away . "

(Id .

at

12 : 33 -34 . )

Defendant Etzel then places Mrs . McMullen in handcuffs and
escorts

her

McMullen

to

was

her

police
and

a rrested

(Doc .

car .

44

charged

at

with

10 . )

Mr .

misdemeanor

obstruction of a law enforcement officer and Mrs . McMullen
was arrested and charged with misde meanor obstruction of a
law enforcement officer as well as simple battery on a law
enforcement officer .

(Id. at 11 . )

The only other i n dividual defendant ,

Defendant Libby ,

was not present at the scene or otherwise directly involved
in

the

arrests

preliminary

of

Mr .

hearing

Wentworth

following

probable

cause

and

he l d
the

Mrs .
in

McMullen .

Municipal

incide n t ,

a

(I d . )

Plaintiffs were ultimately dismissed .
Based

on

t he

judge

assault

and

have

brought

battery ,

state

fa lse

law

arrest

found

that

against

(Id . )
their

Plaintiffs filed a complaint in this Court .
Plaintiffs

the
Port

cha rg es

surrounding

events

At
in

Court

The

existed .

(Id . )

claims
and

arrests ,

(Doc . 1 . ) Both
for

aggra vat ed

imprisonment ,

and

loss of consort i um against Defendants Phi nn ey and Etzel , in
their individual capacities .

(Id . ;

9

Doc .

28 ,

Attach .

1 0 at

1- 3 . ) 5

Defendants
Defendant
U. S . C.

have

Plaintiffs

§

City

Port

of

Phinney ,

and

asserted

Defendant

against

Defendant

Wentworth ,

claims

Etzel ,

Libby

pursuant

to

42

198 3 for the " use of improper police procedures ,

excessive
Defendants

force ,

and

"violated

unlawful

arrest "

the

civil

rights

fifth ,

and

under the

first ,

fourth ,

to

United

States

the

also

contending
of

the

that

Plaintiffs

fourteenth Amendments

Constitution . " 6

(Id .

at

5.)

Because
suits
against
officials
in
their
official
capacities are in reality suits against the state , Cameron
v . Lang , 274 Ga . 122 , 126 , 549 S . E . 2d 341 , 346 (200 1 ) , the
official capacities suits against Defendants Phinney and
Etzel would be suits against the City of Port Wentworth .
Counsel for
Plaintiffs has represented to Defendants'
counsel that the only claims asserted against the City of
Port Wentworth are federal claims . (Doc . 28 , Attach . 10 at
1 - 3 . ) Thus , the state law claims against Defendants Phinney
and Etzel are against them in their individual capacities.
6 It is clear how Plaintiffs '
claims of excessive force and
unlawful arrest fall under the fourth Amendment . In regard
to Plaintiffs '
claims of excessive force ,
"the fourth
Amendment ' s prohibition against unreasonable seizures of
the person , or the Eighth Amendment ' s ban on cruel and
unusual punishments ,
[] are the two primary sources of
constitutional
protection
against
physically
abusive
governmental conduct ." Graham v . Connor , 490 U. S . 386 , 394 ,
109 S . Ct . 1865 , 1871 , 104 L . Ed. 2d 443 (1989) . Likewise ,
the fourth Amendment ' s proscription against unreasonable
searches and seizures is the primary source for claims
alleging unlawful arrest . See , ~
, Albright v . Oliver ,
510 U. S . 266 , 274 , 114 S . Ct . 807 , 813 , 127 L . Ed . 2d 114
(1994) ; Case v . Eslinger , 555 f . 3d 1317 , 1326-27 (11th Cir.
2009) . Count 3 of the complaint does not otherwise state
how Defendants violated the First or Fifth Amendments .
Accordingly , the Court evaluates Plaintiffs ' § 1983 claims
under the fourth Amendment .
5

10

Specifically ,
Wentworth

and

Plaintiffs '
these

the

claims

against

Defendant

Libby

§

under

City

Port

allege

1983

of

that

constitutional rights violations were caused by

Defendants '

procedures ,

and

" implementation

official

acts

indifference " to Plaintiffs '
Phinney ,

Defendant

Etzel ,

and

and

official

individual
(Id . at 1 . )

of

rights .

Libby

have

capacities

policies ,

reflected

which

customs ,

deliberate

(Id . at 6 . ) Defendants
been
on

in

sued

the

1983

§

their
claims .

Plaintiffs also seek punitive damages .

(Id .

at

7-8 . )

Defendants City of Port Wentworth ,

Phinney ,

have filed a Motion for Summary Judgment .
motion ,

these

Defendants

against

Defendant Phinney are barred by qualified immunity .

(Id . at

7-14 . )

against

Defendant

Libby

personally

contend
fail

involved

constitutional

that

al l

(Doc . 28 . ) In the
claims

Defendants

argue

and Libby

all

because
or

deprivations

federal

federal

Defendant

connected
and ,

claims
Libby

to

furt her,

the
that

against him are barred by qualified immunity.
15.)

Defendants

Defendant
have

City

failed

caused the

to

argue
of

Port

show

that

the

Wentworth

any policy ,

alleged constitutional

11

federal
fail

or

violations .

not

alleged

the
(Id .

claims

because

practice ,

was

claims
at

14-

against

Plaintiffs
custom that
(Id .

at

16 -

17 . )

Defendants also argue that the claims pursuant to the

First

and

Constitution
regards

Amendments

Fifth

to

are
the

without
state

of

(Id .

merit .

law

the

claims ,

United
at

States

17 - 18 . )

Defendants

With

argue

that

Plaintiffs have asserted state law claims o nly as against
Defendant

Phinney ,

in

his

individual

capacity ,

and

that

these claims are barred by official or qualified immunity .
(Id .

at

18-21.)

Defendants

finally

argue

that

Plaintiffs '

request for punitive damages fails because punitive damages
may

not

be

Wentworth ,
Defendant

asserted

Defendant
Phinney ,

against

Libby ,
in

because Plaintiffs '

his

Defendant

in

his

official

official

Etzel

Judgment.

(Doc .

asserted

against

also

32 . )

filed

Defendant

the

Etzel

state
argues

immunity
malice

or

law

claims

that

because
actual

a

the

there
intent

(Id .

asserted
claims

is
to

that ,

the request for

no

12

for

argues

In

her ,

barred

Mr .

that

9-20 . )

against

evidence

Summary

f e deral law claims

at

are

injure

(Doc . 41 . )

Motion

Etzel

entitled to qualified immunity .
to

and

or

(Id . at 21 - 22 . ) Plaintiffs have

In regards to the

her ,

Port

capacity ,

responded in opposition to Defendants ' motion .
Defendant

of

capacity ,

underlying claims fail ,

punitive damages also fails .

City

by

in

the

or

Mrs.

she

is

regards

Defendant
official
record

of

McMu l len .

(Id .

at 20 - 24 . )

Plaintiffs have responded in opposition to

Defendant Etzel ' s
not

have

motion a rgui n g that Defendant Etzel does

qualified

immunity

because

her

actions

violated

clearly established law and that , with regards to the state
l a w claims ,

actual malice could be fo un d when viewi ng the

fact s of t he case .

(Doc . 42 . )

STANDARD OF REVIEW
According
move

for

to

Fed .

summary

defense-or

the

R.

Civ .

part

of

each

summary judgment is s ought .

11

56(a) ,

" (a )

party

identifying

j udgment ,

P.

each

claim

claim

of

defense-on

may
or

which

Such a motion must be g r anted

" if t h e movant shows that there is no genu i ne dispute as to
any material fact and the movant is entitled to judgment as
a matter of la w.

Id.

11

Th e

" pu rpose of summary judgment is

to

' pierce the pleadings and to assess the proof in order

to

see

whether

there

Matsushita Elec.
574 ,

587 ,

(quoting
Summary
" fa i ls

Ct .

R.

judgment
to

make

a

genuine

need

for

trial . '

Indus . Co . v . Zenith Radio Corp . ,

106 S .
Fed .

is

1348 ,

Civ .
is
a

P.

1356 ,
56

advisory

appropriate
showing

89 L .

when

Ed .

the

sufficient

475 U. S .

2d 538

committee

(1986)
notes) .

nonmoving

to

party

establish

existence of an element essential to that party' s case ,
on

which

t h at

party

will

bear

13

t he

burden

of

II

proof

the
and
at

trial. " Celotex Corp . v . Catrett ,
Ct .

2548 ,

2552 ,

91

L.

Ed .

477 U. S . 317 ,

2d 265

(1986) .

322 ,

The

10 6 S .

substantive

law governing the action determines whether an element
essential .

DeLong Equip .

Co.

v.

Wash.

is

Mills Abrasive Co . ,

887 F . 2d 1499 , 1505 (11th Cir . 1989) .
As the Supreme Court expla ined :
[A] party seeking summary judgment always bears
the initial responsibility of informing the
district court of the basis for its motion , and
identifying those portions of the pleadings ,
depositions ,
answers to interrogatories ,
a nd
admissions
on
file ,
together
with
the
affidavits ,
if
any ,
which
it
believes
demonstrate the absence of a genuine issue of
material fact .
Celotex ,

477

U. S .

at

323 ,

106 S .

Ct .

at

2553 .

The burden

then shifts to the nonmoving party to establish ,
beyond

the

concerning
Clark ,
must

pleadings ,
facts

Inc .,
review

that

material

to

929 F . 2d 604 ,
the

there
its

608

evidence

inferences arising from it

at

1356 .

However ,

than simply show that

the

a

case .

all

genuine

Clark

(11th Cir .

and

v.

reasonable

Coats

&

party

factual

favorable

475 U. S . at 587 - 88 ,

nonmoving

issue

1991) . The Court

in the light most

the nonmoving party . Matsushita ,
Ct .

is

by going

"mus t

to

106 S.
do

more

there

is some metaphysical doubt as

to the material facts . " Id .,

475 U. S . at 586 , 106 S . Ct . at

1356 .

A mere " scintilla " of evidence ,

14

or simply conclusory

allegations , will not suffice . See , ~

'

Tidwell v . Carter

Prods ., 135 F . 3d 1422 , 1425 (11th Cir . 1998) . Nevertheless,
where

a

reasonable

inference
genuine
refuse

from
issue

to

fact

the
of

grant

finder

facts,

"draw

that

and

material
summary

may

inference

fact ,

judgment .

then

mo re

the

than

creates

Court

Barfield v .

11

one
a

should

Brierton,

883 F . 2d 923 , 933-34 (11th Cir . 1989) .
ANALYSIS

PHINNEY ,

DEFENDANTS CITY OF
PORT WENTWORTH ,
LIBBY ' S MOTION FOR S0MMARY JUDGMENT

I.

A.

AND

Plaintiffs ' Claims Against Defendant Phinney

Defendants City of Port Wentworth ,

Phi nney ,

and Libby

argue in their motion for summary judgment that

Defendant

Phinney

is

Plaintiff ' s

§

entitled

(Doc .

1983 .

28

qualified

claims

federal

to

brought

at

7. )

In

immunity
pursuant

order

to

on
to

be

all

42

of

U. S . C .

entitled

to

qualified immunity , the officers first must " establish that
they

were

during
967

the

(11th

acted
shifts

acting

incident .
Cir.

within
to

within

the

If

author i ty

Cannella ,

F. 3d

is

it

discretionary

v.

Manners

11

2018) .
their

their

shown

discretionary

plaintiff (s)

immunity is not appropriate .

to

15

that

the

author ity,

demonstrate

Id .

8 91

at

968 .

Here ,

officers

the

that

959 ,

burden

qualified
Plaint iffs

do

not

contest

Defendant

exercising his
an

discretionary

investigation

that

and

because

violations

that

were

41

not

clearly

Thus ,

to

plaintiff ( s)

must

" show

right ,"

13- 14

that

in

(arguing
qualified

constitutional
at

qualified

officer ' s

and

to

caused

established

overcome
the

at

he was

assisting

entitled

conduct

incident) . )

constitutional

(Doc .

is

his

assertion that

authority while

arrest .

Phinney

Defendant

immunity

Phinney ' s

the

time

immuni ty ,

conduct

the

violated

"was

right

of

a

clearly

established" at the time of the alleged conduct. Saucier v .
Katz ,
2d

5 3 3 U. S . 19 4 ,

272

(2001).

We

20 1 ,
do

10 2 S . Ct . 2151 ,
not

have

prongs in sequential order .

to

215 6 ,

consider

15 0 L . Ed .
the

Pearson v . Callahan ,

Saucier
555 U. S .

223 , 236 , 129 S . Ct . 808 , 818 , 172 L . Ed . 2d 565 (2009) . As
against Defendant Phinney ,
suffered

two

Plaintiffs each assert that they

constitutional

violations .

Plaintiffs

also

assert s t ate law claims against Defe ndant Phinne y for false
arrest ,

aggravated

assault

and

and

battery ,

loss

of

consortium .
1.

Mr . McMullen ' s 42 U. S . C. § 1983 claims
a.

Mr .
his

Unlawful arrest

McMullen contends that Defendant

Fourth

Amendment

right

to

16

be

free

Phinney violated
of

unreasonable

searches
arrest .

and

seizures

by

subjecting

" A warrantless arrest

him

to

an

unlawful

is constitutional under t he

Fourth Amendment only when it is made with probable cause ."
Cozzi v . City of Birmingham , 892 F . 3d 1288 , 1293 (11th Cir .
2018) ,

cert .

395 ,

202 L .

U. S .

89 ,

denied sub nom .

However ,
be

Ed .

91 ,

2d

85

289

(2018)

Ct .

S.

223 ,

in the context of

entitled

to

Thomas v .

quali f ied

13

Ed.

L.

raises

there

a

was

qualified

arguable

2d

198 3 actions ,

§

139 S .

Ct .

Ohio ,

379

(citing Beck v .

immu nity

even

actual probable cause for the arrest ;
who

Cozzi ,

immunity

probable

142

"an officer may
if

there

instead ,

defense

cause ."

(1964)) .

no

an o fficer

will

Id .

was

prevail

if

' Arguable

\\

probable cause exists where reasonable officers in the same
circumstances

and

possessing

the

same

knowledge

as

the

[d]efendant could have believed that probable cause existed
to

arrest . '

1263 ,

12 66

Id .

II

(qu oting

(11th Cir .

Rushing

2010)) .

v.

Parker ,

599

"Probable cause exists

F . 3d
' when

the facts and circumstances within the officer ' s knowledge ,
of which he or she has reasonably trustworthy information ,
would

cause

circumstances

a

prudent

shown ,

that

person

to

the

suspect

has

committing , or is about to commit an offense .'

17

under

believe ,

committed ,
11

the
is

Cozzi , 892

F . 3d at 1293

(quoting Lee v .

Ferraro ,

284

E'.3d 1188 ,

1195

(11th Cir . 2002)) .
Mr .

McMullen

contends

have probable cause
he

was

only

failure

to

insufficient
(Doc .

to arrest

q u estioning
immediately
grounds

41 at 8 - 9 . )

that

Defendant

him for obstruction because

the

officers

respond

to

Phinney did not

support

In Georgia ,

"a

and

to

because
commands

the

an

his
is

obstruction

charge .

person who knowingly and

willfully obstructs or hinders any law enforcement officer
in the lawful discharge of his or her official duties
shall be guilty of a misdemeanor . " O. C . G. A .
" The

of

elements

essential

§

16-10-24 (a) .

§

O . C . G . A.

16 - 10 - 24(a)

obstructing or hindering law enforcement officers are : that
the act

constituting

and willful
his

obstruction or hindering was

and that

the officer was

official duties . "

186 ,

825

S . E . 2d

552 ,

Taylor
554

v.

lawfully discharging

State ,

(2019)

knowing

34 9 Ga .

(internal

App .

18 5 ,

citations

and

quotations omitted) .
In
least

th is

case ,

arguable

obstruction

Defendants

probable

because

he

cause

contend
to

refused

that

arrest
to

Mr .

obey

there

was

McMullen
the

at
for

off icer s '

mu l tiple commands to leave the convenience store .

(Doc .

28

at

with

an

13 . )

Under

Georgia

l aw ,

18

r efusal

to

comply

officer ' s

commands

obstruction

is

charge .

Supp . 2d 1345 ,

1358

Ga . App . 516 , 517-18 ,
are authorized ,
individua l
complete ,

for

sufficient to

Townsend v .
(S . D. Ga .

form the basis of an

Coffee Cty . ,

Ga .,

854

20 11 ) ; Council v . State ,

662 S . E . 2d 291 ,

293 (2008)

their own safety ,

to

F.
291

(" Officers

request

that

an

remain in a vehicle until their investigation is
and a refusal to comply with an officer ' s

lawful

demand to remain in a vehicle will sustain a conviction for
obstruction . 11 )

misdemeanor
App . 456 ,

Arsenault

;

457 , 571 S . E . 2d 456 ,

458

v.

State ,

257

Ga.

(2002) ; Harris v . State ,

276 Ga . App . 234 , 236 , 622 S . E . 2d 905 , 907 (2005) .
Plaintiffs argue that the "McMullens n ever refused to
leave

the

store

(Doc .

41 at 10 . )

contradicts

or

this

do

anything

However ,

the

officers

commanded .

11

the body cam video in this case

contention .

It

is

undisputed

that

Mr .

McMullen was ordered outside the store at least seven times
and that he did not exit the store .

(Doc .

28 ,

Attach .

4. )

Plaintiffs also argue that "[t] here was no obst ruction

in

and he

his asking wh y he was being forced to leave

had actually turned to gather his fami l y in order to leave
wh e n
(Doc .

he

was
41

attacked by

at

10 . )

Pellegri n o

However ,

this

[Etzel]

and

contention

Phinney .
is

11

also

contradicted by the body cam video . Mr. McMullen did at one

19

point

ask why

he was

being ordered outside

Etzel

responded

"[ c]ause

right

now and we

' hey ,

let me tal k to you right now .'

don ' t

we ' re

roll

to

anybody ."

towards

the

outside .

(I d .
open

(Id .

at

at

8 : 26 . )

door

and

something

food mart

"

and say

(Doc . 28 , Attach .

4

"I ' m not asking to talk

Officer
repeats

8 : 26 - 27 . )

Defendant

investigating

up into a

at 8 : 18-25 . ) Mr . McMullen responds ,

and

Etzel
the

Defendant

then

command

Etz el

command to exit the store two more times .

points
to

repeats

go
the

(Id . at 8 : 28 - 31.)

After asking why he was being asked to leave the store and
being told that there was an active police investigation on
scene ,

Mr .

times .

McMullen

Thus ,

was

ordered

out

of

even accepting Plaintiffs '

the

store

three

facts as true that

he was gathering his family when he was tase d and arr ested
for obstruction ,
to

leave

the

he

store

had been directly and e xplicitly told
no

less

than

three

times

after being

told that police were there investigating a matter.
Plaintiffs cite to WBY,

I nc . v .

F.

App ' x

486 ,

493

(11th Cir .

Ga .

App .

816 ,

820

(2012) ,

1253

(11th Cir .

was

no

2008)

probable

2017) ,

Dekalb Cty. ,
Harris

and Reese v .

v.

Ga .,

695

State ,

314

Herbert ,

527

F . 3d

to support their position that there

cause

to

arrest

Mr .

McMullen

for

obstruction because he was merely questioning the officers '

20

actions and had simply failed to immediately respond to the
office r s '

(Doc .

orders .

insufficient

to

41

at

demonstrate

8- 9 . )

that

These

the

law

cases

are

surrounding

unlawful arrest was clearly established as of April 6 , 2015
to

operate

as

a

bar

of

qualified

immunity

to

Defendan t

Phinney .
First ,
WBY ,

Inc.

unlawful

Defendants are correct in their contention that
cannot be used to show that the law surrounding

arrest

was

" clea r ly established"

2015 because WBY was decided in 20 1 7 .
claim

that

conclusion "

the
in

Eleventh

Reese .

Circuit

(Doc .

41

at

as

of April

Plaintiffs ,
reached
10 . )

In

6,

however ,

the
Reese ,

" same
the

Eleventh Circu it summarized the operative facts surrounding
the plaintiff ' s claims that there was no probable cause to
arrest him for obstruction as follo ws :
[t]en minutes had elapsed since the
alleged
aggressor
in
the
domestic
violence dispute had been handcuffed
and placed in Deputy Geddie ' s patrol
car . Herbert was standing outside the
building
to
prevent
others
from
entering the apartment where
Deputy
Geddie was
interviewing the alleged
victim.
After
approaching
Herbert,
Reese
patiently
waited
for
a
few
minutes before making his request that
the law enforcement vehicles be moved .
He then requested to speak with the
officer
in
charge .
Throughout
this
exchange , Reese maintained a calm voice

21

and demeanor. Reese did not impede
hinder Herbert in the performance
his police duties .
527

F . 3d at 1272-73 .

was

necessary

Herbert

After Reese asked Herbert whether it

for

the

Reese

told

or
of

v ehicles

it

was

to

remain

necessary

for

at
the

the

scene ,

vehicles

remain and told Reese to leave or he would go to jail .
at

1258 .

Reese

turned

vehicle

and

Herbert

force .

Id .

at

Woodward
(2000) ,

v.

241

that

walk

grabbed

1258-59 .

Gray ,

noted

to

an

Reese

The

Ga.

towards

847 ,
for

general

area

entirely

S . E . 2d

obstruction

beyond

Id .

Geddie ' s
him

with

quoting

Circuit ,

527

predicated upon such a refusal to obe y
the

arrested

El eve n th

App .

" arrest

and

Trooper

to

595 ,

599

cannot

be

' a command to clear

the

zone

of

police

operation.' " Id . at 1273 (emphasis added) .

In

the

Reese ,

alleged

aggressor

in

the

domestic

dispute had been secured i n an officer ' s patrol car and the
plaintiff approached an
the

building

to

officer that

prevent

was

individua ls

standing outs ide

from

entering

the

active police scene where another officer was intervie wing
the alleged victim .

Id .

plaintiff

an

Here ,
the

to

leave

at
area

1272 .

The officers ordered the

outside

of

the

Defendant Phinney and Defendant Etze l

convenience

store

regarding a

22

domestic

active

scene .

were called to
dispute .

(Doc .

28 ,

Attach .

have

a

1 at 1 . )

description

Defendants

of

the

Phinney and Etzel did not

indi victuals

arrived at the scene to investigate .

in

the dispute

and

(Id . at 2 . ) Thus , when

Mr. McMullen was ordered from the scene approximately seven
times ,

he

suspect
Court

was

or

notes

in

the

aggressor
that

"zone
had

of

been

police

operation"

secured .

Woodward has

and

Furthermore ,

no

this

been explicitly disapproved

of by the Court of Appeals of Georgia in Stryker v . State ,
297 Ga. App .
to

the

still

493 ,

extent

495 n . 1 ,

that

requires

it

proof

677 S . E . 2d 680 ,

found

of

that

forcible

682 n . l

misdemeanor
resistance

(2009) ,

obstruction

or

threat

of

violence .
In Harris ,
"[had]

found

based

solely

the Georgia Court of Appeals found that it

no

case

upon

a

remonstrating with ,
the

performance

Plaintiffs
" conduct

his

Harris

constitutes

an

obstruction

defendant ' s

or even

of

cite

upholding

of

criticizing an

duties . "
to

mere

act

314

Ga .

argue

that

hesitation

to

conviction

speaking

to ,

officer during
App .
Mr .

at

819 .

McMullen ' s

responding

in

a

confusing and threatening experience" and that Mr . McMullen
was merely questioning the officers '
8;

10.)

As discussed above ,

these contentions .

actions .

(Doc .

41 at

the body cam video contradicts

Furthermore ,

23

Harris does not support an

argument

that

there

is

no

probable

cause

to

arrest

an

individual for obstruction where the individual refuses to
comply

with

an

officer ' s

command .

In

fact ,

the

Court

of

Appeals went on to state that "cases upholding misdemeanor
obstru ction convi ctions involve words plus something more . "
Id . at 821 . After citing a few cases for support , the Court
of Appeals noted in Harris ,

that " [the plaintiff]

did not

refuse to comply with an officer ' s directive or command . No
officer
asked

ever

him

asked

to

threatening

to

produce

or

enter
the

violent . "

his

child .
Id .

house .
[Th e

Thus ,

No

officer

plaintiff]
Harris

is

was

ever
not

factually

distinct from the case at bar and cannot be found to have
placed Defendant Phinney on notice that it is impermissible
to arrest

a

person for

obstruction under Georgia

law for

refusing numerous commands from law enforcement to exit the
scene

of

an

Court

finds

police

investigation . 7

Therefore ,

Defendant

Phinney had at

least

active
that

probable cause to arrest Mr .

the

arguable

McMullen for obstruction and

The Court also notes that Harris is a case from the
Georgia Court of Appeals. For the purposes of determining
whether a right is cle arly established, this Court may only
look to binding opinions from the Unit e d Stat es Supreme
Court , the Eleventh Circuit Court of Appeals, and the
Supreme Court of Georgia , the highest court in th e state of
Georgia . Merricks v . Adkisson , 785 F . 3d 553, 559 (11th Cir .
2015) ; Lee , 284 F . 3d at 1197 n . 5 (11th Cir . 2002) .
7

24

qualified
unlawfu l

immunity
arrest .

Phinney

Defendant

accordingly ,

that ,

on
As

Mr .
a

is

McMullen ' s

result ,

entitled

1983

§

to
for

Motion

Defendants '

claim

for

Summary Judgment as to Defendant Phinney on Mr . McMullen ' s

§ 1983 claim for unlawful arrest i s GRANTED.
b.
Mr .

Ex cessive fo r ce

M
cMu l le n

excessiv e
Amendment .
Defendants '

f orce

alleges

aga i nst

(Doc .

that

hi m

1 at 5 - 6 . )

Motion for

in

Defendant
vio l ation

However ,

of

the

used
Fourth

in their response to

Summary Judgment ,

that " Pellegrino [Etzel]

Phinney

Plaintiffs assert

and Phinney inexplicably escalated

a routine request to clear an area by using excessive force
[u] nder
not

entitled

g e nuine

qualif i ed

Pelleg r ino

immun i ty"

because

[Etzel]
" there

is
ar e

(Doc . 41 at 14 . ) Des p ite not specifically stating

Defendant

immunity ,
used

to

circumstances ,

disputes of material fact surrounding Pellegrino ' s

conduct . "
that

these

Phinney

Plaintiffs '

excessive

is

st i l l

force

(Doc .

not

entitled

to

qualified

maintain that Defendant Ph i nney
41

at

11-13)

and

that

his

conduct violated clearly established law at the time of the
incident (Id. at 13 - 14) .

25

We

must

light most
Phinney ' s
so ,

determine

favorable
conduct

established
2015 .

The

to Mr .

at

the

right

constitutional
time

of

the

to

make

an

arrest

alleged
or

necessarily carries with it the rig h t
physica l
the

ta ken

show that

constitutional

the

right

facts ,

McMullen ,

violated a

t h is

whether

whether

right

and ,

was

conduct-April

investigatory

individuals

F . 3d

at

973 .

The

stop

however ,

from the use of

use of force during the course of an arrest
891

6,

to use some degree of

109 S . Ct . at 1 871 - 72 . The gra t u itous ,

Manners ,

if

clearly

excessive force during the arrest or stop. Graham ,
at 396 ,

t he

Defendant

coercion or threat thereof to effect it ,

Fourth Amendment protects

in

49 0 U. S .

unwarranted

is excessive .

Eleven th

Circuit

has

repeatedly ruled that a police officer vio lates the Fourth
Amendment ,

and is denied qua li f ied immuni ty ,

if he or she

" uses gratuitous and excessive force against a suspect who
is

under

control ,

not

resist i ng ,

and

obeying

comma nds . "

Saunders v . Duke , 766 F . 3d 1262 , 1265 (11th Cir. 2014) .
The

determination

of

wh ether

the

force

reasonable is viewed from the p erspective of a
officer on the scene ,
hindsight ."
applies

Graham ,

unless

the

used

was

" reas onable

r ather than wi t h the 20 /20 vision of
4 90

U. S .

a pplicati on

26

at
of

396 .
the

Qualified
reasonable

immunity
officer

standard would " inevitably lead every reasonable officer to
conclude the fo r ce was unlawful ." Nolin v . Isbell , 207 F . 3d
1253 ,

1255

(11th Cir . 2000) . To balance the reasonableness

of the force used ,
including :

(1 )

a court must evaluate several factors ,

the

severity

of

the

crime

at

issue ,

( 2)

whether the suspect poses an immediate threat to the safety
of the off ice rs or others ,
actively

resisting

arrest

and
or

( 3)

whether the suspect is

attempting

to

evade

arrest .

Graham, 490 U. S . at 396 , 109 S . Ct . at 1872 .
The first Graham factor ,
issue ,

weighs

arrested

for

in favor

the severity of the crime at

of Mr .

obstruction

McMullen .

after

he

Mr .

refused

McMullen was
to

leave

the

convenience store despite being told to do so approximately
seven

times .

(11th

See Vinyard v .

Cir .

Wilson ,

(desc ribing

2002)

the

311

F . 3d

crimes

of

1340 ,

1347

disorderly

conduct and obstruction as crimes of "minor severity") .
The second Graham factor , whether the suspect poses an
immediate threat to the safety of the officers or others ,
weighs

in

Plaintiffs '
we

favor

of

Defendant

Phinney .

Although

we

take

facts as t r ue at this stage in the proceedings ,

evaluate

those

reasonable officer on

facts
the

from

the

perspective

of

a

scene to determine whether the

force used was objectively reasonable . Manners , 891 F . 3d at

27

973 .

Here ,

Mr .

McMullen

refused

to

obey

two

officers'

multiple commands to leave the scene and then turned away
after being told for a seventh time to exit the store. The
body

cam

Defendant

video

shows

that

Etzel and Mr .

8 : 33- 38 . )

there

McMullen .

Phinney

Defendant

was

a

(Doc .

scuffle
28 ,

Attach .

involved

became

between
4 at

with

Mr .

McMullen after this physical interaction was initiated and
a reasonable officer on the scene could find this physical
involvement

to

be

a

threat

to

the

safety

of

the

other

officer , necessitating his involvement.
The
actively

third

Graham

resisting

factor,

arrest

or

whether

the

attempting

to

suspects
evade

were

arrest ,

narrowly falls in favor of Defendant Phinney . According to
Plaintiffs '
Mr .

viewed in

light of the body cam video,

McMul l en was touched by Defendant Etzel ,

turns
and

facts

towards

then

Attach .

Defendant Etzel ,

Defendant Etzel

taser

being

the
4

Mr .

at

is

heard

8 : 33 - 38 . )

"The

deployed.

McMullen

pushes

him

(Doc .

28 ,

' reasonableness '

of

a

particular use of force must be judged from the perspective
of a reasonable officer on the scene ,
20/20 vision of hindsight ." Graham ,
Ct .

at

allowance

1872 .
for

The
the

reasonableness
fact

that

28

rather than with the

490 U . S . at 396 , 109 S .
inquiry

p olice

"must

officers

are

embody
often

forced to make split - second judgments-in circumstances that
are tense , uncertain , and rapidly evolving-about the amount
of force that is necessary in a particular situation . " Id . ,
490

U. S .

at

396-97 ,·

109

Plaintiffs '

facts
touched

Mr .

interaction with

Ct .

true ,

as

ph y sically

S.

at

187 2 .

Defendant Etzel .

taking
Phinney

Defendant

when

McMulle n ,

Even

he

was

in

a

p hysical

A reasonable officer on

the scene in the tense and quickly evolving situation could
perceive both the turning towards Defendant Etzel when she
placed

her

him

on

hands

a nd

physical

ensuing

the

interaction as an effort by Mr . McMullen to resist arrest .
In

sum ,

the

Court

finds

that

the

physical

force

emp l oyed by Defendant Phinney against Mr . McMullen did not
v i olate

the

Fourth

Amendment .

un l ess the application of

Qualified

the

immunity

applies

reasonable officer standard

wou l d " inevitably lead every reasonable officer to conclude
the

force

was

unlawful . "

Nolin ,

construing the evidence in a
McMullen ,

207

F . 3d

light most

at

1255.

favorable

Even

to Mr .

the circumstances would not lead every reasonable

officer to conclude that the force used here was excessive
and

unlawful .

Because

constitutional

violation ,

second

prong

Saucier

of

this
this

Court
Court

whether

29

the

finds
does

there
not

was

no

reach

the

constitutional

right

was clearly established . Accordingly , this Court finds that
Defendant Phinney is entitled to qualified immunity on Mr.
McMullen ' s

§ 1983 claim for excessive force .

Defendants '

Motion

for

Summary

Judgment

As a

as

to

result ,

Defendant

Phinney on Mr . McMullen ' s § 1983 claim for excessive force
is GRANTED .
2.

Mrs. McMullen ' s 42 U. S . C . § 1983 claims
a.

In

Unlawful arrest

their

Phinney ,

City

motion
of

Port

for

summary

Wentworth ,

Defendants

judgment ,
and

Libby

argue

that ,

because Defendant Phinney was not the arresting officer of
Mrs .

McMullen ,

(Doc .

28 ,

Attach .

De f endant s
cause

at

not

be

liable

12

n.4 . )

In

for

her

the

arrest .

alternative ,

McMullen

Mrs .

entitled

to

qualified

and

that

Defendant
(Id . )

immunity.

In

Plaintiffs do not direct ly respond to Defendants'

contention
officer

2

arresting

is

response ,

should

argue that there was at least arguable probable

for

Phinney

he

that

and

Defendant

that

an

Phinney

unlawful

was

arrest

not

the

cla i m

arresting
cannot

be

maintained agains t him .
"To establish§ 1983 liab i lity , a plaint iff must show
' proof

of

government

an

affirmative

actor ' s

acts

causal
or

30

connection '

omissions

and

bet ween
th e

a

alleged

constitutional
proving
acts

that

that

Brown v .

the

which

official

resulted

in

was

the

' may

be

personally

involved

198 6) ) .

Thus ,

" unless

the

by

in

the

deprivation . '

608 F . 3d 724 ,

(quoting Zatler v . Wainwright ,

Cir .

established

constitutional

City of Huntsville , Ala .,

Cir . 2010)
(11th

violation ,

737

(11th

802 F . 2d 397 ,

plaintiff

II

can

401
show

that the defendant officer was part of the chain of command
authorizing the arrest action , " merely being present at the
scene is not enough . Id .
the

Here ,

even

facts ,

viewed

in

the

light

most

favorable to Plaintiffs , do not show that Defendant Phinney
participated

in

Mrs .

supervisory

control

video

that

McMullen ' s

shows

over

arrest

Defendant

Defendant

or

otherwise
The

Etzel .

had
cam

Etzel approached Mrs.

body

McMullen

outside of the convenience store and asked her " was there
any reason you decided to touch me in there? "
10 ;

Doc .

responded ,
at

10 ;

28 ,

" [n]o ,

Doc .

28 ,

then asked Mrs .
that

she

Attach .

could

I

4.

at

11 : 43 - 47 . )

(Doc .

Mrs .

just wanted to be with him ."

Attach .

4

at

11 : 50-51.)

4 4 at

McMullen
(Doc .

Defendant

44

Etzel

McMullen if she had her own phone so that
call

someone

to

come

pick

up

the

kids

becau se Mrs . McMullen would be going to jail as well .

(Doc .

44 at 10 . ) After being i n formed that she wou l d be arrested ,

31

Mrs.

McMullen

stated

that

denied

she

pulled me off ."

having

"just

touched

wanted

to

at

her .

him

and

then

you

and

Etzel

I

pushed you away ."
then

placed

Mrs .

and escorted her to her police car .

4 4 at 10 . ) Additionally ,

deposition that

did.

Defendant

12 : 33 - 34 . )

McMullen in handcuff s
(Doc .

touch

Etzel

(Doc . 28 , Attach . 4 at 12 : 31-32 . ) Defendant

Etzel then replied that " [a] nd I
(Id .

Defendant

it was

not

Mrs . McMullen stated in her

Defendant

Phinney who arrested

(Doc . 28 , Attach . 8 at 38 : 22 - 24 . )
Defendant Phinney was not present when Defendant Eztel

was talking with Mrs . McMullen outside the store and chose
to arrest her .

Further ,

Defendant

Phinney

Etzel

or

that ,

even

Defendant

Etzel

to

that

Plaintiffs

Phinney
arrest
§

1983 .

was
so

had

supervisory
if

he

arrest

have

as

to

support

§

1983

did ,

Mr s .

failed

sufficiently

Defendants '

McMullen ' s

there has been no allegations that
control
he

directed

McMullen .

The

to demonstrate

invo lved
a

over

cla im

wi th

or

ordered

Court

that

Mrs .

pursuant

Defendant

to

finds

Defendant
McMullen ' s
42

U. S . C .

motion for summary judgment as to Mrs .
claim

for

Defendant Phinney is GRANTED.

32

unlawful

arrest

against

b.
In

Excessive force

regards

to

excessive

force ,

Wentworth ,

and

Mrs .

Defendants

Libby

any

force ,

much

McMullen-meaning

he

that

immunity as

less

1983

Phinney ,

argue

entitled to qualified

§

McMullen ' s

of

Port

Phinney

"Phinney did

is

not

apply

against

force ,
did

for

City

Defendant

excessive

necessarily

claim

Mrs .

not

violate

her

constitutional rights ." (Doc . 28 , Attach . 2 at 10.) There is
no evidence in the record that Defendant Phinney touched or
applied

any

response

force

brief

Defendant

at

all

addressing

Ph inney ,

to

the

Mrs .

McMullen .

alleged
do

Plaintiffs

excessive
discuss

not

applied by Defendant Phinney on Mrs . McMullen .
at

11 - 14 . )

Accordingly ,

the

In

Court

finds

their

force
any

by

force

(See Doc . 41

that

Plaintiffs

have conceded that that Mrs. McMullen does not have a cause
of action pursuant to
Phinney

for

excessive

4 2 U. S . C .
force .

§

As

198 3 against
a

result ,

Defendant

Defendants '

Motion for Summary Judgment as to Defendant Phinney on Mrs .
McMullen ' s § 1983 claim for excessive force is GRANTED .
3.

Plaintiffs '

state law claims

Defendants contend that qualified or official immunity
bars all of Plaintiffs '
Phinney

in

his

state law claims against Defendant

individual

capacity .

33

(Doc .

28

at

19 . )

In

Plaintiffs

response ,
could

find

that

contend

Phinney and

that

reasonable

"[a]

Pellegrino acted with

jury
actual

malice or intent to injure by using extreme force against
the McMullens because the facts , when viewed most favorably
to the plaintiffs ,
conduct "

(Doc .

41

show they posed no threat of criminal
at

17)

and

that ,

with

regards

to

the

false arrest claims , malice may be infe rred from the total
l ack of probable cause to arrest

(Id .

first notes that , as addressed above ,
not touch Mrs .

McMullen ,

at 18) .

This Court

Defendant Ph inney did

nor did he arrest her .

Thus ,

to

the extent Mrs . McMullen asserts state law claims for false
arrest

and

assault

and

battery

as

Defendant

against

Phinney , these claims are DISMISSED.
Mr .

McMullen

Defendant

as serted

Phinney for

and battery.
officer

has

or

(Doc .

acts

arrest

1 at 4 - 5 . )

emp loyee

ministerial

false

may

state

law

claims

against

and aggravated assault

Under Georgia law ,

be

personal l y

negligently

liable

performed

or

a public
only

for

discretionary

acts performed with mali ce or an intent to injure . Cameron
v.

Lang ,

274

Williams v .
547

Ga .

Pauley ,

(2015) .

contention that

122 ,

123 ,

549

S.E.2d

331 Ga . App . 129 ,

Plaintiffs
Defendants

do

not

341 ,

130 ,

(2001) ;

768 S . E . 2d 546 ,

dispute

Phinney and Etzel ' s

34

344

Defendants '
action s

at

issue

were discretionary .

( See

malice requires "a deliberat e

Doc .

41 at

1 7 -18. )

Actual

intention to do an unlawful

act . " Adams v . Hazelwood , 271 Ga . 414 , 414 , 520 S . E . 2d 896 ,
898

(1999)) .

Actual

circumstances ,

but

ma lice

must

be

al leged

be

cannot

implied

by

the

plaintiff

the

from

and

supported by evidence in the record . See Watkins v . Latif ,
323 Ga . App . 306 , 311 , 744 S . E.2d 860 , 863 (2013).
Here ,
that
injure

Plaintiffs

Defendant
them

in

failed to allege

Phinney
their

acted
state

battery and false arrest .
Defendants '

mot i on

argue that " [a]

with

for

law

(Doc .

summary

in

their complai n t

malice

claims

or

for

1 at 1-8 . )
judgment ,

intent
assault

to
and

In response to
Plaintiffs

only

reasonable jury could find that Phinney and

Pellegrino acted with actual malice or intent to injure by
using

extreme

force

against

the

McMullens

facts ,

when viewed most favorably to the plaintiffs ,

they posed no threat of criminal conduct . "
This falls

because

the
show

(Doc . 41 at 17 . )

short of the requirement to show actual malice

or actual intent to injure.

Plaintiffs have pointed to no

ev idence that Defendant Phinney committed the acts alleged
with

actual

evidence

in

malice .
the

Nor

have

record that

Plaintiffs

Defendant

intent to injure Plaintiffs .

35

cited

Phinney

had

to

any

actual

To the extent that Plaintiffs seek to rely on Kidd v .
Coates ,
argue

271

Ga .

that

33 ,

the

518

force

S . E.2d
used

124 ,

by

125

(Ga .

Defendant

1999) ,

to

Phinney

was

committed intentionally and wi t hout justification and that ,
therefore ,
actual

Defendant Phinney acted solely with the tortious

intent

to

cause

injury ,

reliance misplaced.

The Georgia

the

intent

phrase

" actual

to

this

Court

finds

this

Supreme Court has defined
cause

injury"

actual intent to cause harm to the plaintiff ,

to

mean

"an

not merely an

intent to do the act purportedly resulting in the claimed
injury .

This

malice ,
33

of

intent

contains

aspec ts

perhaps a wicked or evil motive . " Kidd ,

(emphasis

omitted) .
Court

definition

Applying

found

defense ,

(internal

added)

that

this
if

citations

definition ,

an

officer

shoots

but

defending

does

himself . "

[decedent]

so

for

Id .

intentionally

the

and

at

quotations

Georgia
another

Thus ,
and

non - tortious
if

"however ,

self- defense ,

then

the

without

they acted solely with the tortious

harm him ,

271 Ga.

Supreme
in

self-

he " does not act with the tortious intent to harm

a n other ,

injury ,'

the

of

purpose

office rs

justification ,

of

"shot
then

' actual intent to cause

if the officers " shot [the decedent]

in

t hey

to

had

no

actual

tortious

in t ent

but acted only with the justifiable intent which

36

occurs

in

every

case

of

self-defense ."

Id .

The

focus

in

Kidd is on the officer ' s intent in effectuating the f o rce .
The Georgia Supreme Court
using

force

intent

to

intent"

in

self- defe n se ,

harm ,"

to

necessary

"use
to

found that ,

but

he

instead

force

as

prevent

had

acted

is

where an officer is
no

" actual

with

the

reasonably

death

or

great

271

have

Defendant

33 .

Here ,

Phinney ' s

Plaintiffs

force

was

to

be

injury

bodily

forcible

at

"justifiable

believed

themselves or the commission of a
Ga .

tortious

to

felony ." Kidd ,

not

alleged

accomplished with

an

that

actual

intent to cause harm and have not cited to anything in the
record to show that Defendant Phinney had such an intent
that

he

acted without

general

statement

any

that

the

justification for
facts

of

the

the

case

or

force .

A

demonstrate

that the defendants acted with malice and with an intent to
injure is insufficient to satisfy the "demanding standard"
of

showing

malice.
Cir.
(11th

that

Baker v .

2019) ;
Cir .

the

defendant

Clements ,

7 60

see also Hart v .
2016)

( stating

officers

acted

with

F.

954,

958-5 9

App ' x

Logan ,

that

the

664

actual

F . App ' x 857 ,

Eleventh

Circuit

(11th
864
has

noted "that Georgia ' s actual malice standard is higher than
what

is

required

to

make

violation. " ) .

37

out

a

Fourth

Amendment

Plaintiffs also conte n d that ,
arrest
total

claims ,
lack

that

of

may

arrest

u n supported
official
10312 ,

actual malice may be

probable

under Georgia law ,

by

case .

41

in fe rred
at

18 . )

fr om a
However ,

the fact " that an officer ' s decision to

probable

immunity ."

is

v.

not

City

enough
of

to

summary

overcome

Atlanta ,

at *6 (11th Cir . July 19 ,

unenti tled to

or

' flawed , '

' mistaken ,'

cause

Croland

2019 WL 3244983 ,

officer may be

(Doc .

' misg u ided ,'

be

in regards to the false

No .

19-

2019) . An

judgment on official

immunity grounds where " sufficient evidence exists that -at

the

time

of

an

the

arrest

officer

had

actual

subjective knowledge that no crime was committed and ,

acted

with

a

deliberate

(emphasis in original)
Bateast

v.

758

version

the

of

to

break

the

law . "

Id .

(collecting Georgia cases) . See also

Dekalb Cty .,

S . E . 2d 756 ,

intent

thus ,

(2002)

Ga .,

258

Ga .

(finding that ,

facts,

the

App .

131 ,

132 ,

572

under the plaintiff ' s

officers

proceeded

with

the

arrest "despite their knowledge that she had not committed
the

crimes "

off ice rs
Her e ,

she

accused

" deliberately

Plaintiffs

Defendant

was

Phinney

of

intend [ e d]

have

cited

had

actual

to

and

that ,

to do
no

a

therefore ,
wrongful

direct

knowledge

t hat

had committed no crime at the time of the arrest .

38

act ." )

evidence
Mr .

the

that

McMullen
Rather ,

as

discussed above ,

cause

that

he

obstruction .
j udgment

there

had

at

committed

Accordingly ,

is

was

and

GRANTED

least

the

arguable

misdemeanor

Defendants '

motion

crime

for

state

Plaintiffs '

probable
of

summary

law

claims

against Defendant Phinney are DISMISSED. 8
B.

Plaintiffs ' Claims Against Defendant Libby

Defendants '

contend that the 4 2 0. S . C .

Defendant

against

Libby

must

be

§

claims

1983

because

dismissed

Plainti ffs have failed to demonstrate that Defenda nt Libby
had any personal involvement in the incident or that there
is any direct causal connection between his actions and any
alleged constitutional deprivat ions .
In

14-15 . )

cla i ms

the

al t e rnative ,

against

immunity .

(Id .

Defendant
policymaker

Defendant
at 15 . )

Libby

Defendants

Libby

are

I n response ,
found

may

be

Port

for

(Doc . 28 , Attach . 2 at

bar red

and ,

ratification and approval of Phinne y and
are

chargeable

W
entworth ' s

to

the

policies

municipalit y
and

customs.u

by

that

the

qualified

Plaintiffs argue that

liable

Wentworth ,u

contend

as

as

he

was

therefore ,
[Etzel ' s]
evidence

(Doc .

41

"a
" his

actions
of
at

Port
15.)

As
Plaintiffs '
claims
for
loss of consortium are
derivative of their state l a w claims for false arrest and
aggravated assault and battery, which fail , Plaintiffs '
c l a ims for loss of consortium against Defenda nt Phinney are
also DISMISSED .
8

39

Plaintiffs argue that Defendant Libby and Defendant Ci ty of
Por t
at

Wentworth ' s
both

the

knowledge of Defendant Etzel ' s misconduct

Savannah

Chatham

County

Metropol i t an

Police

Department and the City of Port Wentwo r th Police Department
creates
and

a

question of fact

Defendant

practice ,

or

City

of

custom

as to whether Defendant Libby

Port

of

Wentworth

ignoring

the

" made

a

regular ,

pattern
egregious

misconduct of Officer [Etzel] ." ( Id. at 16 . )
The

history that

fol lows .

Defendant

Plaintiffs

Etzel

was

reference

previously

is

se t

employed

out

as

as

an

officer at the Savannah Chatham County Metropolitan Police
Department
Etzel ,

(" SCMPD" ) .

while

(Doc . 33 , Attach . 3 at 18 . ) Defendant

employed

with

testified

SCMPD ,

that

she

deployed a taser on a handcuffed suspect who was "try[ing]
to head butt other off ice rs ."

(Id . at 34 . ) Defendant Etzel

also testified that she was aware ,
occurred ,

that

SCMPD policy .
from

the

tasing

a

handcuf f ed

(Id . at 4 2 . )

Crime

at the time the tasing
suspect

In

July

Suppression

2 013 ,

Unit

Defendant

psychological counseling .
mail between Defendan t

against

Defendant Etzel was transferred
back

to

patrol

taser was taken away for some period of time .
51.)

was

(Id .

Etzel

was

and

her

(Id . at 4 9 ;
referred

to

at 53 . ) According to an e -

Etzel ' s supervisor , Captain Reilley ,

40

and

the

counselor ,

the

counseling
work

due

issues

complaints .

(Id . at 54.) Addi tionally ,

in

October

altercation
Following
placed

with

her

on

2013

for

to

to

behavioral

arrested

at

was

numerous

arrest ,

battery

Defendant

administrative

Etzel

after

citizen

a

physical

at

(Id .

70 - 72 . )

was

suspended

and

at

72 ;

41,

(Id .

leave .

some

Defendant Eztel was

then - husband .

her

address

Doc .

Attach . 3 at 7 . )
When

Defendant

Libby was

for a position wi t h the

considering

Defendant

Port Wentworth Police

Etzel

Department ,

he was aware that she had resigned from the SCMPD and was
under investigation .

(Doc . 28 , Attach . 11 at 31 . ) Defendant

Libby

reviewed

received

police reports .
offer

of

charges

and
(Id .

at 35 . )

empl oyment

were

still

her

to

personnel

Defendant

insubordination

and out .

the

while

these

crimi nal

charges

were

(Doc . 33 , Attach . 3 at

Defendant Etzel received a reprimand

regarding

(Id . at 98) .

Etzel

h owever ,

nolle prossed before she began work .

for

and

Defendant Libby extended the

pending ,

90 . ) In April of 2014 ,

file

an

order about

In November of 2014 ,

clocking

in

Defendant Etzel

r eceived a written warning for taking unscheduled paid time
off.

(Id .

December ,

at

104 - 105 . )

Approximately

a

month

later ,

in

Defendant Etzel was approached by a corporal wh o

41

informally reprimanded her for driving her patrol car at 98
MPH while not under dispatch .
11 at 87.)

However ,

got

a

into

87 . )

Chief

Defendant Etzel and the corporal later

disagreement

insubordination

was

Libby

(Id . at 107 ; Doc . 28 , Attach .

about

the

documented .
disagreed

incident

(Doc .

with

a

28,

and

Attach .

her

11

recommendation

at

that

Defendant Etzel be terminated over these incidents .

(Id . at

67 . )

However ,

for

fifteen

days

(Doc .

and placed on a

twelve-

Defendant

33 ,

Attach .

Etzel

was

3 at 113)

suspended

month probationary period in January of 2015 and informed
that

violation

termination .

of

departmental

policy

would

result

in

(Doc . 28 , Attach . 11 at 68) . A few days after

she was placed on probation ,

Defendant Etzel was

involved

in a n at-fault car crash wh e n she was responding to a call .
(Id . at 69 - 70 . ) Defendant Etzel was not terminated at that
time .
she

(Id . )
sent

fr i ends

a

Defendant Etzel resigned in October 2015 after
text

saying ,

message
"I

to

should

the

have

husband

shot

you

of

one

of

her

when

I

had

the

chance ." (Doc . 33 , Attach . 3 at 141 - 142 . )
Plaintiffs

contend

that

these

incidents

show

the

" regular , egregious misconduct" of Defendant Etzel and that
Defendant

Libby ' s

failure

to

correct

these

issues

render

Defendant Libby liable for Defendant Etzel ' s constitutional

42

violations . Defendants , however , argue that Plaintiffs only
offer up one instance of prio r

constitutional deprivations

of e x cessive force and false arrest and that the incident ,
the

tasing of a

woman

in

handcuffs ,

did

not occur while

Defe ndant Etzel was e mp loyed by the City of Port Wentworth
Po l ice

Department.

Plaintiffs

have ,

deprivations
"obvious ,

(Doc .

4 9 at

8. )

therefore ,

that

flagrant ,

Defendants

failed

and

of

that

that

the

show

widespread

consti tu te
rampant,

to

argue

abuse

continued

were

duration "

rather than simply " isolated occurrences ." ( ~
The Court agrees with Defendants. Supervisor liability
u n der§ 1983 occurs
personally
supervisor
when
the
alleged
in
the
participates
constitutional violation or whe n there
is a causal connection between actions
of the supervising official and the
alleged constitutional deprivation . The
ca us al connection can be established
wh e n a history of widespread abuse puts
the responsible supervisor on notice of
the
ne ed
to
correct
the
alleged
deprivation , and h e [she] fails to do
so . The deprivations that constitute
widespre ad abuse sufficient to notify
the
supervising
official
must
be
obvious ,
flagrant ,
rampant ,
and
of
continued
duration ,
rather
than
isolated occurrences .
Braddy v .
802

Fla .

Dep ' t

(1 1th Cir .

1998)

of Labor

&

Emp't Sec .,

(quoting Brown v .

43

133 F . 3d 797 ,

Crawford ,

906 F . 2d

667 ,

671

(11th Cir . 1990) ) . The causal connection may also

be established if the supervisor ' s "
result[s]
rights '

or

in

deliberate

when

facts

' custom or policy .

indifference

support

' an

to

constitutional

inference

that

the

supervisor directed the subordinates to act unlawfully or
knew that the subordinates would act unlawfully and failed
to stop them from doing so . '
1352 ,

1360

(11th Cir . 2003)

" Cottone v.

Jenne ,

32 6 F . 3d

(quoting Gonzalez v . Reno ,

325

F . 3d 1228 , 1234-35 (11th Cir . 2003)) .
While
demonstrate

Etzel ' s

employment

that

was

a

she

not

model

record

may

employee ,

Defendant

the

reprimands she received while at the City of Port Wentworth
Police

for

were

Department

insubordination

for

or

violations of policies that did not concern excessive force
or

arrest

procedures.

involving the

use

of

The

Court

force ,

finds

which

that

one

incident

occurred prior

to

her

employment at the City of Port Wentworth Police Department ,
does not rise to the level of " widespread abuse " that would
put Defendant Libby on notice of the need to correct the
alleged deprivation so as to establish a causal connection
between Defendant Libby ' s
constitutional
See Doe v . Sch .

supervisory role and the alleged

deprivations

committed

Bd . of Broward Cty .,

44

by

Defendant

Fla .,

Etzel .

604 F . 3d 1248 ,

12 67

(11th

Cir .

2010)

(finding

two

complaints

of

sexual

harassment prior to the plaintiff ' s

sexual assault did not

rise to conduct that was "obvious ,

flagrant ,

of

continued

733 ,

735

duration") ;

(11th

Cir .

Hawk

("We

2013)

incidents [of e x cessive force]
years

can

constitute

v.

rampant ,

Klaetsch,
fail

to

522

and

App ' x

how

see

F.

three

over the span of nearly five
widespread ,

f r equent ,

or

rampant

abuse ." ) .
Moreover , even if the one prior instance was enough to
place
the

Defendant Libby on notice that he needed to correct

alleged

"fail[ed]

deprivation ,

the

to do so . " Brown ,

supervisor

must

906 F.2d at 671.

have

also

In this case ,

the prior incident occurred while Defendant Etzel was with
the SCMPD. When asked whether t he fact that SCMPD " removed
her

[Defendant

because
Libby ,

of

her

Etzel ' s]
use

of

tase
force "

privileges
would

he testified that " [w] ell ,

and

matter

to

He

stated

Technical

that
College

Defendant
Police

her

Defendant

it would make me ensure

that I trained her properly if I gave her one ,
when she came to work for me . "

demoted

which I did

(Doc . 28 , Attach . 11 at 29 . )

Etzel

Academy

was
and

sent
" went

to

Savannah

through

taser

training by their instructions and certified and signed off
by Georgia POST Council . "

(Id . )

45

Plaintiffs have offered no

evidence that this training was insufficient or deficient .
the

Accordingly ,

Court

Defendants '

GRANTS

result ,

for

§ 1983 claims against

summary judgment as to the 42 U. S . C .
Defendant Libby . As a

motion

Defendant Libby is DISMISSED

from this action .
C.

Plaintiffs '
Wentworth

Defendants

Claims Against

contend

that

Plaintiffs '

claims against

Defendant City of

matter

because

of

law

evidence of a "
use

of

Defendant City of Port

Plaintiffs

failed

Defendants
to

have

or

unlawful

arrest

In

that

Metropolitan

produce

Plaintiffs
Port

Police

Police

at

respect to

contend

that

Wentworth ' s
both

the

Department

Department

a

and

training ,

Plaintiffs advance

they made with

knowledge

same

of

Libby

and

Defendant

Savannah

Chatham

and

City

creates a

46

the

or

Defendant Libby.

Defendant

the

2

have

hiring,

response,

Attach .

persistent

improper

In

of

Plaintiffs

of

misconduct

Wentworth

contend

of

Defendant City of
Etzel ' s

further

evidence

(Id . )

essence ,

to

28 ,

(Doc .

any

that

198 3

by officers

practice

retention .
arguments

failed

produce

widespread

§

' persistent and widespread practice' of the

excessive force

17 . )

U. S . C .

Port Wentworth fail as a

the Port Wentworth Police Department . "
at

42

question of

County

of

Port

fact

as

to

whether

Defendant

Libby

and

Defendant

City

of

Port

Wentworth "made a pattern practice ,

or custom of ignoring

the

of

regular ,

egregious

misconduct

Officer

[Etzel] ."

(Doc . 41 at 16.)
To

impose

§

1983

plaintiff must

show :

were

(2)

violated ;

policy

that

" ( 1)

that

on

his

a

municipality ,

constitutional

that the municipality had a

constituted

constitutional
caused the

liability

right ;

deliberate

and

violation ."

(3)

McDowell

v.

the

policy

Brown ,

3 92

rights

custom or

indifference

that

a

to
or

that
custom

F . 3d 128 3 ,

1289 (11th Cir . 2004). "To establish a policy or custom , it
is generally necessary to show a persistent and wide - spread
practice .

Moreover ,

actual

or

constructive

such customs must be attributed to the
the

municipality .

incidents

are

Normally

insufficient

policy ." Depew v .

random
to

City of St.

of

governing body of
or

acts

establish

Marys ,

knowledge

Ga .,

a

isolated
custom

or

7 87 F . 2d 1496 ,

1499 (11th Cir . 1986) .
Plaintiffs

contend

that

Defendant

City

of

Port

Wentworth ' s knowledge of Defendant Etzel ' s prior misconduct
at the SCMPD and their failure to take action , despite her
continued infractions at the City of Port Wentworth Police
Department ,

c o ns t ituted a policy of ignoring the "regular ,

47

egregious misconduct" of Defendant
However ,
finds

for

this

the

argument

(Doc .

41 at 16 . )

addressed above ,

same reasons

Etzel .

this Court

inadequate

to

maintain

municipal

liability under§ 1983 .
Plaintiffs have cited to only one instance of alleged
excessive

force

Defendant

Phinney

case .
the

committed

either

the

Defendant

incident

at

Etzel

issue

in

or
this

Plaintiffs have not cited to a n y other evidence that

City

of

Port

excessive force .
one

before

by

past

Wentworth

Ind eed ,

incident of

had

a

"policy

or

custom"

as pointed out by Defendants ,

excessive

force

did

not

of
the

occur while

Defendant Etzel was employed by the City of Port Wentworth
Department .

Police

contending

that

" ignoring "

the

presumably ,
so ,

Setting

of

or

Defendant

would

Etzel

supervision ,

engaged

and

the

fact

in

wh ile

W
ent worth did no t
arrest ,

have

the

employed

here

is

Etzel

simply

and

that ,

Port Wentworth not done
" addi tional

receive d

oversight . "

that

are

Plaintiffs

custom"

had Defendant City of

aside

unlawful

" policy

misconduct

Defendant

training ,

Etz e l

the

that

appears

It

(Doc .

41

" misconduct "
by

the

City

at

16 . )

Defendant
of

Port

involve allegations of excessive force or
the

deposition

Etzel and Defendant Libby ,

testimony

of

Defendant

as well as the fac ts recited by

48

Plaintiffs in their r esponse ,
misconduct

do not demonstrate that
Plaint i ffs '

"ignored. "

wa s

the

response

in

opposition to the motion for summary judgment states that
" [Etzel]

was

Wentworth' s

issued a

paid

time

written

off

warning

policy ,"

for

and

violating

she

was

Port

"issued

another written warning for operating her patrol car at 98

MPH in a 55 MPH zone while not under dispatch . "

(Doc. 41 at

was

ultimately

6

(emphasis

suspended

Defenda nt

added) . )

for

fifteen

days

and

probationary period and was

Etzel
placed

Defendant

City

of

a

twelve - month

ordered to complete

tas k and decision making training. "
that

on

Port

" critical

(Id . ) Thus ,

Wentworth

it appears

actually

did

take

actions in response to Defendant Etzel ' s misconduct.
Moreover ,

Plaintiffs

must

still

show

this

that

"ignoring" misconduct by officers was a widespread practice
at the City of Port Wentworth Police Department .
random

acts

or

iso l ated

incidents

establish a custom or policy . " Depew ,
the bare minimum ,
City

of

Port

punishing

are

" Normally

insufficient

to

787 F . 2d at 14 99 . At

Plaintiffs have only shown that Defendant

Wentworth

Defendant

had

Etzel

infractions

in

the manner

sufficient .

In essence ,

for
that

isolated

insubordination
Plaintiffs

Plaintiffs have

49

incidents

and

believed

failed

of

to

not
other

to

be

produce

evidence that Defendant City of Port Wentworth had a p olicy
or custom that caused Plaintiffs to be subject to excessive
force

and unlawful arrest.

Defendants '

Motion for

Summary

Judgment is GRANTED and Defendant City of Port Wentworth is
DISMISSED from this action .

D.

Plaintiffs ' Claims pursuant to the First and Fifth
Amendments of the United States Constitution

Defendants
no facts
or

argue

that

Plaintiffs '

comp laint

provided

regarding their First and Fifth Amendment claims

explain

how

Defendants

violated

such

therefore , these claims must be dismissed .
Plaintiffs

do

not

address

this

rights

and ,

(Doc . 28 at 18 . )

portion

of

Defendants '

motion for summary j udgment in their respons e . Accordingly ,
the Court finds that Plaintiffs have abandoned their claims
pursuant to the
States
App ' x

Constitution .
981 ,

result ,
with

First and

985-86

v.

(11th Cir .

Defendants '

regards

Gore

Fifth Amendments of the United

to

Jacobs
2017) ;

Motion for
Plaintiffs '

Eng ' g

Grp .,

Local Rule 7 . 5 .

Summary Judgment
First

706

and

Fifth

(Doc .

F.

As

a

28)

Amendment

claims is GRANTED .
E.

Plaintiffs ' Claims for Punitive Damages

Defendants

contend

that

Plaintiffs '

request

for

punitive damages fails because the underlying claims fail .

50

(Doc .

28 at 21 . ) In the alternative ,

Defendants argue that

punitive damages may n ot be awarded against Defendants City
of

Port

Wentworth ,

Phinney ,

in his

Libby ,

be

In

Plaintiffs

punitive

19 . )

held

damages

underlying

his

official

official capacity ,

entity ca nnot
response ,

in

liable

is

claims

survive

because a

for

that

their

summary

(Id . )

request

judgment .

Plaintiffs do not address Defendants '

for
their

because

extinguished

or

gove rnmental

punitive damages .

contend
not

capacity ,

(Doc .

41

at

contention that

punit ive damages cannot be assessed agai n st Defendant City
of Port Wentworth or Defendants Libby and Phinney , in their
official capacities.
Although
Plaintiffs '
damages

(Id.)

it

is

briefing

under

all

of

not

suggests
their

from

clear
that

they

asserted

this Court has dismissed Plaintiffs '
Defendants City of
well

as

Phin ney,

Plaintiffs '

state

law

punitive

However ,

as

1983 claims against

Phinney ,

claims

and Libby as

against

Defendant

any derivative claims for punitive damages must be

dismissed .
750 ,

Port Wentworth ,

seek

claims .
§

complaint ,

the

667

See Lewis v .
S . E . 2d

plaintiff

cannot

underlying

tort

716 ,

Meredith Corp . ,
719

recover
c l aim

(2008)

(" Under

punitive

fails .u } ;

51

2 93 Ga .

Georgia

damages

Butler

v.

App .

Ga .

7 47 ,

law ,

when
Dep ' t

a
the
of

Corr . ,

No .

6:18-CV-170 ,

2018 WL 6729647 ,

at

*7

(S . D.

Ga .

Dec . 21 , 2018) . In conclusion , the Court GRANTS Defendants '
Motion

for

Summary

the

Phinney ,

City

of

Port

28)

and

Defendants

Wentworth ,

Judgment

(Doc .

and

Libby

are

DISMISSED from this sui t .

II .

DEFENDANT ETZEL ' S MOTION FOR SUMMARY JUDGMENT
A.

Mr . McMullen ' s
Defendant Etzel
1.

42

§

U. S . C .

1 983

Claims

Against

Unlawfu l arrest

Defenqant

Etzel

contends

in

her

motion

for

summary

judgment that she had probabl e cause to arrest Mr . McMullen
for

obstruction

under

O. C . G. A.

§

32 ,

(Doc .

16-10-24 .

Attach . 1 at 11.) Defendant Etzel also contends that she is
entitled

to

qualified

immuni ty

on

Plaintiffs '

claims

for

false arrest because there was at least arguable probable
cause

to

refus e d

arrest

to

Mr .

McMul l en

for

obey the

officers '

multiple commands

the convenience store .

obstruction

because
to

he

leave

(Id . at 13 . )

Under Georgia law , refusal to comply with an officer ' s
commands is sufficient to form t h e basis of a n obstruction
charge . Townsend , 854 F . Supp . 2d at 13 58 ; Council, 291 Ga .
App .

at

authorized ,

517-18,
for

662
their

S . E . 2d
own

at

safety ,

52

293
to

( " Officers
request

that

are
an

individual remain in a vehicle until their investigation is
complete ,

and a refusal to comply with an officer ' s lawful

demand to remain in a vehicle will sustain a conviction for
misdemeanor obstruction . n ) ; Arsenau lt , 257 Ga . App . at 457 ,
571 S . E . 2d at 458 ; Harris ,

276 Ga . App . at 236 ,

622 S . E . 2d

at 907 . In response to Defendant Etzel ' s motion for summary
judgment ,

Plaintiffs

response

to

adva n ce

Defendant s

the

Phinney ,

same

arguments

Libby ,

and

made

City

of

in

Port

Wentworth ' s motion for summary judgment with regards to the
arrest

of Mr .

McMulle n

and whethe r

Defen dant

Phinney was

entitled to qualified immunity . For the same reasons as set
forth above ,

the Court finds that Defendant Etzel i s

also

entitled

qualified

1983

claims

to
for

unlawful

Accordingl y,
(Doc .

32)

immunity
arrest .

on

See

Mr .

McMullen ' s

supra

Part

§

I (A) ( 1) (a) .

Defendant Etzel ' s motion for summary judgment

is GRANTED and Mr .

McMullen ' s

§

1983 claims for

unlawful arrest are DISMISSED .
2.

Excessive forc e

Defendant
qualif ied

Et zel

immunity

on

contends
Mr .

that

she

McMullen ' s

is

claims

entitled
of

to

excessive

force under the Fourth Amendment because the force used was
reasonable

and because

Plaintiffs

will

be

unable

to

show

that the law " clearly establishedn that the force Defendant

53

Etzel

used

Attach .

was

unconstitut i onal

1 at 14 - 20.)

and

In response ,

excess i ve .

(Doc .

32 ,

Plaintiffs maintain that

Defendant Etzel used objectively unreasonable force on Mr .
McMullen when
Aventura ,
Casal ,

she tased him a n d

647

877

F . 3d

1272

F . 3d 1253 ,

(11th

1264

cites to
Cir .

Fils v .

2011)

( 1 1th Cir .

and

2017)

City of
Brand

to

v.

show that

Defendant Etzel ' s actions violated clearly established law.
(Doc . 4 2 at 11 - 14 . )
Even

ass uming

a

constitutional

first prong of the Saucier analysis ,

violation

under

the

Plaintiffs cannot show

that the contours of the right were so clearly established
in

this

context

that

officer that

hi s

confronted . "

Saucier ,

" If

the

law

conduct

did

would be

it

would

" be

clear

co nduct was unlawful

not

in

to

a

reasonable

the situation he

533 U. S . at 202 , 1 2 1 S . Ct . at 2156 .
put

clearl y

the

officer

unlawful ,

on

notice

summary

tha t

judgmen t

his
based

on qualified immunity is appropriate . " Id . A party may show
that

the

law

is

clearly

established

by

controlling and materially similar case
officer's
Beach ,

condu ct

Fla . ,

208

unlawful .
F . 3d 9 1 9 ,

Priester
926

overcome

qualified

immunity

by

54

that

v.

(11th Cir .

is no controlling materially similar case ,

pointing

City

to

declares
of

2000) .

a
the

Riviera
If there

a party ma y also

demonstrating

that

"

' the

official ' s
what
of

the

conduct

lies

so

Fourth Amendment

the

conduct

was

obviously at
prohibits

readily

the

that

apparent

notwithstanding the l ack of case law .'

very core

the

of

unlawfulness

to
Id.

"

the

official ,

( quot ing Smith

v . Mattox , 127 F . 3d 1416 , 1419 (11th Cir . 1997)) .
In

regards

Appeals

for

' difficult ,
taser

gun

to taser

the

Elev ent h

tense
to

and

subdue

police
toward

police

Barner ,

525

Thus ,

"

is

' where a

uncooperative ,
physical

2016)

force

suspect

has

who

suspect ' s

rights

has
to

1073

of

a

taser

1278

causing

serious
LePage ,

Fils ,

against
not

647
a

non - hostile

disobe yed

under

the

F . 3d at 1289 .

55

a

ignored

v.

(quoting
2004)) .

preferable
the

and

1294

to

a
or

(11th

However ,

non - violent

violates

Amendment ."

and

suspect

1290) .

inst r uctions

Fourth

of

belligerent ,

834 F . 3d 1285 ,
at

a

belligerently

2008)

harm to

F . 3d

" in

use

(11th Cir .

be

of

Zivojinovich

Cir.

might

that

the

act

force . "

(11th

Court

repeatedly

suspect appears hostile ,

(quoting

" unprovoked

who

369 F . 3d 1270 ,

the officer . ' " Smith v .
Cir .

held

situation '

excessive

1059 ,

use

struggle

has

continues

and

Reynolds ,

United States

Circuit

suspect

not

F . 3d

the

uncertain

a

inst r uctions

Draper v .

use ,

Fils ,

that
647

Pl aintiffs argue that
Defendant

Etzel

that

her

Fils gave sufficient
conduct

violated

notice to

the

Fourth

Amendment . 9 (Doc . 42 at 11-14 . ) This Court disag rees . While
Fils

shares

simil arities

that

there

are

material

with

this

case ,

differences

the

that

Court

finds

preclude

this

Court from finding that Fils sufficiently placed Defendant
Etzel on notice that her taser use was unconstitutional .
According
having

to

the

private

a

plaintiff

conversation

in

Fils ,
before

he

was

[the

"merely
officer]

approached him , taser drawn" and that when he saw the taser
"he put his hands in the air and took a step away from [the
officer] . 11 10
"because
move ,
Id .

647

F . 3d

[the officer]

[the plaintiff]

at

1289 .

The

court

observed

that

issued no warnings or directives to
clearly did n ot disobey any orders . "

The Eleventh Circuit stated that " [the plaintiff]

tased even though he committed at most a minor offense ;

was
he

Plaintiffs also cite to Brand v . Casal , 877 F . 3d 12 53 ,
12 64 (11th Cir . 201 7) . However , the opinion in Brand has
been vacated . Moreover , Brand was decided in 2017 , and the
operative events in this case occurred on April 6 , 2015 ,
therefore , Brand cannot be used to demonstrate that the law
surrounding unlawful arrest was clearly established as of
April 6 , 2015 to operate as a bar of qualified immunity to
Defendant Etzel .
10
Fils
involves
claims
of
excessive
force
by
two
plaintiffs.
However ,
because
the
force
alleged
here
involves the use of a taser , the Court recites the facts in
Fils for plaintiff Nemours Maurice who was a l so tased .
9

56

did not resist arrest ;
did

not

Id .

disobey

The

court

similar

to

F . 3d 919
1340

any

instructions

found

that

Priester

v.

(11th Cir .

(11th Cir .

he did not threaten anyone ;

2002)

these

City

2000)

(for

of

none

facts

were

were

Riviera

given) ."

sufficiently

Beach ,

and Vinyard v .

and he

Fla . ,

208

311

F . 3d

Wilson ,

t o place the off icers on notice that

their conduct was unlawful . Id .
Like

the

accused

of

anyone ,

plaintiff

committing

and ,

under

a

in

Fils ,

minor

Plaintiffs '

Mr .

McMullen

offense ,
version

did
of

also

not

the

was

threaten

facts ,

was

not hostile or aggressive . However , unli ke the plaintiff in
Fils

who

saw

t he

taser ,

placed his

took a step away from the officer ,

hands

in

the

a ir

and

here the body cam v ideo

clearly shows that Mr .

McMullen spoke with Defendant Etzel

and

and

Defendant
saw

store ,

Phinney

t hat

Defendant

received
Etzel

orders
had

to

drawn

l eave
her

t he

taser,

received additional orders to leave and was un cooperative ,
and then turned away from her .
in

Fils ,

Mr .

leave

the

after

being

tased .

The

McMullen

store

and

told
Court

had

finds

to

unlike the plaintiff

received and

act ively

again

Thus ,

turned

leave
that

materially differe nt from Fils .

57

the
these

ignored orders

away
store

from

to

officers

before

circumstances

being
are

The question ,

therefore ,

is whether it would be clear

to every reasonable officer ,

even in the absence of case

law ,

that

the

here-tasing

used

force

an

individual once who refuses to obey officers '
excessive

under

cannot

find

single

taser

the

that
in

circumstances .

every
this

officer

to

commands-was

Ultimately ,

would

instance

unsecured

be

find
a

the
use

the

Court
of

violation

of

a

the

United States Constitution , particularly in light of Draper
v.

Reynolds ,

369 F . 3d 1270 ,

1272

(11th Cir . 2004) , and the

persuasive opinion of Anthony v. Coffee Cty .,

579 F . App'x

760 , 761 (11th Cir . 2014) .
In

Draper ,

the

Eleventh

Circuit

found

the

use

of

a

single taser in effectuating arrest was not excessive under
the

Fourth Amendment .

369 F . 3d at 1278 .

The plaintiff was

speaking with the officer behind the plaintiff ' s truck and
the

video

camera

that follow .
shouting
the

the

and

officer

license ,

Id .

but

spoke

the

patrol

at 1273.

complaining
calmly
the

encounter ,

animatedly ,

in

about

the

for

the

asked

Id .

plaintiff

The

officer ' s

t he

actions

"was

driver ' s

complain .

belligerent ,

During

gestured

appeared very excited ,

officer

58

flashlight ,

plaintiff ' s

continued to

continuously paced ,

loudly ."

recorded

The plaintiff immediately began

plaintiff

the

car

repeatedly

asked

and
the

plaintiff

to

stop

yelling

and

"informed

[the

plaintiff]

that he would be taken to jail if he continued to yell . "
Id .

The officer asked plaintiff for other information and

the

plaintiff

accused

the

walked

officer

towards
of

his

truck

harassing

him .

and
Id.

then

The

loudly

plaintiff

handed his license to the officer and began walking back
towards the truck when the officer told him again that he
needed certain ot h er information . Id . The plaintiff did not
go retrieve the information but instead walked back to th e
officer

and

accused

officer

asked

for

him
the

again

of

third

time

information which was not obeyed .
for the information ,

Id.

harassment.
for

the

The

requested

The officer asked again

which was not obeyed ,

and then tased

the plaintiff after asking for the fifth time . Id .
The court noted that "[f ]rom the time

[the plaintiff]

met [the officer] at the back of the truck ,

[the p laintiff ]

was

hostile ,

1278 .

belligerent ,

The

court

profanity ,

moved

repeatedly
t hat ,

under

summarized
around

yelled at
the

and uncooperative ."

and

[the

facts

that

" [the

paced

in

office r ] . "

Id .

presented ,

there

369

F . 3d at

plaintiff]
agitation ,
The
was

court
a

used
and
found

reasonable

need for some use of force i n the arrest and that starting
with

a

verbal

arrest

command

59

accompanied

by

physical

h andcuffing

could

have

escalated

the

situation

into

a

physical struggle . Id .
Here ,

like the plaintiff in

not comply with

Defe ndant

Draper ,

Etzel ' s

Mr .

McMullen did

verbal commands

and was

uncooperative when she was ordering him to exit the store.
Though there are some factual dissimilarities ,
Mr . McMullen was not yelling ,
t owards the o ff ice rs ,
Eleventh
use

on

Circuit
an

cursing or acting aggressive

Draper has been widely cited by the

for

the

proposition

uncooperative

suspect

that

who

291 F . App ' x 238 ,

24 4 n . 3

a

single

refused

verbal commands is permissible . Chaney v .
FL ,

name l y that

to

taser
foll ow

City of Orlando ,

(1 1 th Cir .

2008)

( " (W]e have

held that use of a Taser to encourage compliance or to gain
over

control

permissible ." ) ;
(11th Cir . 2015)

a

Barfield v .

Rambos k ,

641 F .

situation

is

App ' x 8 4 5 ,

848

(citing Draper and summarizing the case as

"holding that use of a
constitute

violent

potentially

excessive

taser to effectuate arrest did not
force

when

the

suspect

repeatedly

refused to comply with the officer ' s verbal commands " ) .
In Anthony ,

the

Eleventh Circuit

found

the

use

of a

single taser on an off-duty officer who was going to his
mother - in-law ' s
force .

579

F.

house
App ' x

to
at

check
765.

60

on
The

her

was

plaintiff ,

not
an

excessive
off-duty

Georgia State Pat rol officer ,

went to chec k on his mother-

in-law after learning that a large fight had broken out on
her street.

Id . at 762 . He was not dressed in any clothing

ident ify ing

himself

with

no

street .

law
Id .

as

law

enforcement

enforcement markings

when

He spoke with two officers ,

and
he

was

in

arrived

a

car

on

the

identified himself

as law enforcement , and was permitted access to the st reet .
Id .

As he was driving down the street,

defendant Thomason

pointed h is flashlight into the car and the plaintiff told
him

to

get

Thomason

the

walked

light
to

out

the

of

his

driver ' s

eyes .

side

of

Id .
the

Defendant
car

and

instru cted the plaintiff to exit the vehicle . The plaintiff
compl i ed and "started to inform Thomason that he was there
to check o n family" when defendant Thomason started yelling
"

' You don't tell me to get nothing out of your eyes .'

Anthony ,

5 7 9 F . App ' x at 7 62 .

II

The two were standing close

together and defendant Thomason ' s voice was loud enough to
get the attention of another officer , defendant Hudson . Id .
Defendant Thomason instructed the plaintiff to turn around
with his hands behind his back and the plaintiff refused .
Id . At this point , defendant Hudson was standing behind the
plainti ff

with

his

taser

drawn .

Defendant

Thomason

then

r eached up to touch t he plaintiff and the plaintiff " raised

61

his

arms

Then ,

to

chest

height

issuing

without

and
any

pushed

himself

warning ,

away . "

Hudson

defendant

deployed his taser and the plaintiff was

Id.

shocked a

single

time . Id .
The

Eleventh Circuit affirmed the

immunity
the

to

court

defendant

Id .

stated " [a ] lthough

not belligerent ,
command .

Hudson .

And

at

grant
7 65 .

[the

view

this

in

refusing Thomason ' s

plaintiff]

hindsight .

The

Draper ,

arguably was

argues

officer could not have been in fear of injury ,
not

qualified

Ci ting

[the plaintiff]

he was uncooperative ,

although

of

video

that

the

we again do

shows

the

close

contact and the escalating na ture of the incident." Id .
7 66 .

In sum ,

excessive .
command

at

the court found that the single shock was not
In

the

plaintiff

raised his

and

Anthony ,

arms

did

and pushed

not

obey

hims elf away

one
from

the officer while in close proximity to the officer . Here ,
Mr .

McMullen

was

also

uncooperative

and

refused

to

obey

numerous commands to exit the store and finally turned away
from
the

Defendant
store.

officer

in

situation ,

Etzel after being instructed again to exit

Additionally ,
Anthony
Defendant

who

like

the plaintiff and defendant

were

close

Etz e l

a nd

Mr .

together
M Mull en
c

in

a

tense

were

close

together when she touched him to lead him from the store ,

62

after which Mr . McMullen turned towards Defendant Etzel and
the taser was deployed .
The Court cannot find that ,
and Anthony ,
taser

once

nume ro u s

under the facts of Draper

Defendant Etzel had f air notice t hat using a
on

verbal

an

uncooperative

commands

was

individual

clearly

who

unlawfu l

refused

under

the

Fourth Amendment or that this conduct is of the type that
would

" inevitably

defendant ' s]
Lee

v.

lead

every

officer

in

[the

position to conclude the force was unlawful . "

Fe r raro ,

284

F . 3d

( internal

citations

and

Plaintiffs

have

f ailed

establishing

reasona b le

that

1188 ,

quotations
to

Defendant

1 199

(11th

omi tted) .

carry
Etzel ' s

De fendant

2002)

Accordingly ,
burden

of

actions-even

if

their

excessive-violated clearly established law .
Court finds that

Cir .

Therefore,

the

Etzel is entitled to qualified

immunity as she was not on notice that using a taser o nce
on an uncooperative individual who refused numerous verbal
commands was clearly unlawful under the Fourth Amendment. 11

The Court also addresses Mr . McMullen ' s claim that he was
stabbed with a pen by Defendant Etzel . It i s not clear to
the Court whether
Plaint i ffs con tend that this is a
discrete claim of excessive force or whethe r Plaintiff s
identify this incident to explain why Mr .
McMullen ' s
movements did not pose a threat of danger to Defendants
Phinney and Etzel. ( See Doc . 4 2 at 12 -1 3 ( arguing that ,
11

63

B.

Mrs . McMu llen ' s 42 U. S . C. § 1983 Claims Against
Defendant Etzel
1.

Unlawful arrest

Defendant
judgment
McMullen
32 ,

Etzel

th at
for

Attach .

she

contends
h ad

in

probable

her

motion

cause

obstruction under O.C. G. A.
1 at 11.)

to
§

for

arrest

Mrs .

16- 10-24 .

(Doc .

Defendant Etzel also contends that

she is entitled to qualified immunity on Plaintiffs '
for

false

arrest .

summary

(Id.)

Specifically ,

Defendant

claims
Etzel

argues that she had probable ca us e to arrest Mr s . M
cMullen

under the second Graham factor , Mr . McMullen did not pose
an immediate threat to the safety of the o fficers because
" any movement of Mr . McMullen ' s arm occurred reflexively as
a result of
[Etzel]
shoving him in the back without
warning , and stabbing at him with a pen i n the process .").)
To the extent t h at Plaintiffs allege th is force as a
discre te claim, the Court fi nds that this force is , at
most , de minimis . As discussed above , the video evidence
does not support a factual finding that Defendant Etzel
intentionally stabbed Mr . McMullen with the pen . The video
supports the facts that the pen poking or stabbing Mr .
McMullen in the arm was incidental to Defendant Etzel
placing h er h a nds on Mr . McMullen to guide h i m from the
convenience sto r e . The Eleventh Circuit has repeatedly
ruled that gratuitous use of force when a suspect is not
res i sting a rrest constitutes excessive force . Hadley v .
Gutierrez , 526 F . 3d 1324 , 1330 (11th Cir . 2008) . De minimis
force , however , will not support a claim of e x cessive
force . Saunders , 766 F . 3d at 1270 (citation and int ernal
quotation marks
omitted) .
The
Court
finds
that
the
inciden tal force of being poked or stabbed with a pen that
was in an offi cer ' s hand as she went to guide him from a
store is not the " gratuitous and excessive " force that the
Fourth Amendment bars .

64

for obstruction because " the video shows that Mrs . McMullen
advanced

upon

McMullen ,

Etzel

startling

rapidly

that

there

is

that

these
Mrs .

facts

dispute

initial
scope

burden
of

his

807 ,

required
establish

violation

1297

202 L .

Ed.

2d 575

showing ,
that

the

was

Id .

Etzel

behind

and

Defendant
further
as

to

Etzel
state

whether

immunity bears

was

acting

(2019) .
burden

when

Gates

v.

the

within
the

the

alleged

Khokhar,

cert . denied ,

884

139 S . Ct .

If the defendant makes the
shifts

immunity

to

is

the

not

plaintiff

to

appropriate

by

the facts alleged make out a violation of
(2)

the constitut ional right at

Here ,
was

the

Pl aintiffs

acting

in

time

do

not

of the

alleged

dispute

that

her discretionary authority

when she arre sted Mrs . McMullen on April 6 ,
at 7 - 10 . ) Thus ,

response ,

In

fact

authority

clearly established at

misconduct ."
Defendant

he

2018) ,

constitutional r i ght and

issue

of

occurred .

qualified

from

and

qualified

that

(11th Cir .

showing that " (l)
a

showing

Mr.

(Doc . 42 at 8; 10 . )

discretionary

constitutional
F . 3d 1290 ,

of

asserts

secure

gave

McMullen

Mrs . McMullen grabbed [Etzel]. "
who

to

(Id . )

Etzel . "

"material

A defendant

trying

approaching

arrest

to
a

was

by

toward

Plaintiffs disagree
cause

she

Etze l

reaching

probable

as

2015 .

(Doc .

42

Plaintiffs must show that Defendant Etze l ' s

65

arrest

of Mrs .

McMullen violated her

const i tutional

right

and that this right was clearly established at the time of
the arrest .
In r e gard s
contend that

to t h e arrest of Mrs . McMullen ,

Plaintiffs

she was arrested without probable cause and ,

therefore , her Fourth Amendment ri ghts were violated .
42

at

Defendant
focus

Etzel ' s

on

motion

whether

McMullen .

( See

arguments

that

Phinney ,

most

However ,

8.)

there

Id .

at

were

of

for
was

10

Plaintiff s'

summary

response

judgment
cause

to

(presenting

the

same

in

response

to

further ,

concluding

worst ,

is

.").)
a

grabbed

she

tasing

section

(or
Mr .

dispute

do ,

of

attempted
Mullen

with

a

conduct

Plaintiffs

material

McMullen
was

this

McMullen ' s

Mr .

hesitat i on
" there

to

arrest

Mr .

cases

and

Defendants

Libby , and t h e City o f Port Wentwo r th ' s motion for

summary judgment regarding the a r rest of Mr .

" [a]t

to

appears

prob able

raised

(Doc .

McMullen and ,
statement

constitutes

however ,

fact

that

as

to

grab)

[sic] . "

(Id .

contend that

to

whether

Pellegrino
at

mere

10 . )

Mrs .
while

However ,

Defendant Etzel ' s motion for summary judgment does not rely
on

any

contends

alleged
that

touching

there

was

by

Mrs .

probable

McMullen
cause

to

and
arrest

rather
Mrs .

McMullen for obstruction because " the video shows that Mrs.

66

McMullen
Mr .

adva nced upon

McMullen ,

Etzel

startling

as

Etzel

she

by

In

a

emphasizes
McMullen ' s

footnote
that

to

the

that

Court

claim that

she

(Doc .

fl

" must

secure
behind

Attach .

Defendant

accept

not

to

from

32 ,

sentence ,

did

" under either set of fac ts ,

trying

approaching

and rapidly reaching toward Etzel .
11. )

was

touch

as

Etz el

true

Etzel,

fl

but

probable cause existed .

1 at

fl

Mrs .
that
(Id . )

Instead of arguing the merits of whether there was probab l e
cause

to

approaching
towards ,

an

but

McMullen

Mrs .

arrest

arresting officer

not

touching ,

was engaged with a suspect ,

the

Defe ndant

Plaintiffs '
that

failure

Plaintiffs

to

have

still

off ice r

while

the

as to whet her Mrs .

directly

r eachi ng
officer

matter

the

conceded

contend

lacked probable cause to arrest Mrs .

that

McMullen
t hat
mean s

the

(Doc . 50 at 13 . ) However ,

generally

for

argues

Etzel

address

essentially

regarding probable cause .
Plaintiffs

from behind and

Defendant

Etzel .

obstruction

Pl aintiffs reiterate that there

is a material dispute of fact
touche d

for

argument
because

Defendant

McMullen ,

Etzel

this Court

will undertake the qualified immunity analys i s .
fi rs t ,

Plaintiffs

must

show

that

suffered a constitutional violation when s h e
It

is

true that

"[ a)

wa rrantless

67

arrest

is

Mrs .

McMullen

was arrested .
constit uti onal

under

the

Fourt h

Amendment

probable cause ." Cozzi ,
' when

exists

officer ' s

has

he

information ,

would

cause

the
is

" Id .

it

is

circumstances
committing ,

or
a

or

is

wi thin

has

that

about

the

reasonably

prudent

shown ,

with

" Probable cause

she

person

the
to

to

suspect

commit

an

(quoting Lee , 284 F . 3d at 1195) . This is an

standard

which

" whether

asks

officer ' s

underlying intent or motivation . "

at

However ,

in

the

the

officer ' s

regardless of the

actions are objectively reasonable

1195 .

made

circumstances

which

committed ,

objective

and

of

under

offense. '

when

8 92 F . 3d at 12 93 .

facts

knowledge ,

trustworthy
believe ,

the

only

context

of

§

Lee ,

284

F . 3d

1983 actions ,

" an

officer may be entitled to quali fied immunity even if there
was

no

actual probabl e

officer

who

raises

prevail

if

there

"

cause

a

for

t he

arrest ;

qualified

immunity

arguable

instead ,

probable

was

defense

an

will

cause. "

Id .

' Argu a ble probable cause exists where reasonabl e officers

in the same circumstances and possessing the same knowledge
as the

[d]efendant could have believed that probable cause

existed to arrest .'

"

Id .

(quoting Rushing v .

Parker ,

599

F . 3d 1263 , 1266 (11th Cir . 2010)) .
Viewi ng
Plaintiffs ,

the
the

facts
Court

in
finds

the
that

68

light

most

Defendant

favorable

to

Etzel

at

had

least argu able probabl e
obstruction

under

cause to arrest Mrs .

O.C.G . A .

In

16- 10 - 24 .

§

McMul l en for

"a

Georgia ,

person who knowingly and willfully obstructs or hinders any
in the

law enforcement officer
h is

official

her

or

misdemeanor ."

O .C . G. A.

"words

while

duties

shall

can

of

of

a

guilt y

be

16-10 -24(a) .

§

alone

lawful discharge

Under

Georgia

law ,
an

obstruction , "

constitute

obstruction convict i on does not lie when based " solely upon
a

defendant ' s

act

of

speaking

to ,

remonstrating

with ,

or

eve n criticizing a n officer during the performa n ce of his
duties . "

Harris ,

3 1 4 Ga .

App .

at

820,

726 S . E . 2d at

458 .

Rather ,

there must usually be " words plus something more."

Id.

821.

\\

at

' refus[al]

command '

or

The
to

Ga .

where

he

App .

comply

the

behavi or ." WBY ,
314

"s omething

an

A

and

of f ense

v . State, 227 Ga . App.
(citing Wagner v .

an

can

be

willfully
committed

Sta te ,

113 ,

" may

69

viol ent '

obstruction

an

another . "

180 ,

or

( quoting Harris ,

488 S . E . 2d 492 ,

206 Ga . App .

861 , 863 (1992)) .

or

commit

hinders
by

defendant ' s

direct ive

' thr eatening

person

112 ,

the

officer ' s

695 F . App ' x at 4 93

821) .

knowing ly

investigating

with

defendant ' s

Inc . ,
at

more "

182 ,

officer

in

Sprinkles
494

(1997)

424 S . E . 2d

While

the

question

of

whether

"evidence

in

a

particular case establishes that the actions taken hindered
or

obstructed

trier of fact
796 ,

797 ,

476

dete r mining

the

off i cer

making

the

to decide ," Weidmann v .
S . E . 2d

whether

immunity ,

cou r ts

office r,

knowi n g

18 ,

the

20

officer

look

\\

what

(1996) ,
is

o n ly

arrest
State ,
for

the

kne w

the
App .

purposes
to

whether

[Defendants]

for

222 Ga .

entitled

to

is

a
at

of

qualif i ed
reasonable
the

time ,

objectively could h ave believed probable cause existed .'
Gates ,
Here ,

884
two

individual
Mrs .

F . 3d at 130 1
officers
and

McMullen

we r e

were

(quoting Br own ,
actively

attempting

approached

608

e n gaged

to

in

Etzel

from

reached out towards Defendant Etzel and Mr .
Defendant Etzel saw this conduct ,

F . 3d at 736).

effectuate

Defendant

fl

securing
arrest
behind

an

when
and

McMullen . When

she pushed Mrs .

McMullen

away from herself . 12 Given these facts , a reasonab l e officer
coul d have inferred these actions as an attempt to prevent
12

While Defendant Etzel contends that Mrs . McMullen was
intending to grab her and did in fact touch her before
Defen dant Etzel pulled away , this Court takes Plaintiffs '
facts
as true
for evaluatin g the motion
for
summary
judgment . Thus , this Court finds the facts to be that Mrs.
McMullen was behind Defendant Etzel while Defendant Etzel
was engaged in securing Mr . McMullen , that Mrs . McMullen
approached Defendant Etzel and Mr . McMullen , and that she
reached her hand out towa r ds Defendant Etzel and Mr .
McMullen . (Doc . 45 at 12 - 13 ; Doc . 28 , Attach . 4 a t 8 : 45 48 . )

70

or interfere with the officers '

actions in effectuating an

arrest and securing an individual .
1301

(finding

officer

that

could

under

the

"reasonably

See Gates ,

circumstances

have

8 8 4 F . 3d at
a

interpreted"

reasonable
Plaintiff ' s

conduct as a gesture to intimidate under O. C . G. A.

§ 16-ll-

38(a)) . Plaintiffs stated in their response that the reason
Mrs.

McMullen "stepped toward her husband was because she

thought the taser was a real gun ,
him and be with him ,
at

10 - 11 . )

Mrs .

and was trying to reach

fearing he would be killed . "

McMullen acknowledges that

(Doc .

42

she approached

Defendant Etzel and Mr . McMullen in an effort to reach Mr .
McMullen-all

of which occurred when Defendant

Phinney and

Defendant Etzel were securing Mr . McMullen . In this Court's
opinion ,

this

reasonabl e

acknowledgement

officer

on

the

supports the
scene

could

finding that
interpret

a

Mrs .

McMullen's conduct as a n attempt to interject herself into
the

officers '

Thus ,
to
she

ongo ing

efforts

to

secure

an

individual .

Defendant Etzel had at least arguable probable cause

believe t hat Mrs .
was

engaged

with

McMu llen-as
Mr .

she moved toward her as

McMullen

and

in

the

act

of

securing him-was committing or about to commit an offense
by interfering with the arrest of Mr .

71

McMullen and,

thus ,

hindering

the

efforts

of

Defendant

Etzel

and

Defendant

Phinney .
Moreover ,

even

if

Mrs .

McMullen

had

presented

sufficient facts to allege a violation of a c o nstitutional
Plaintiffs

right ,
clearly

have

established

qualified

immunity

at

not

shown

that

the

time

of

defense

focuses

such

the

on

Ga .,

485

Fourth Amendment . "

F . 3d

1130 ,

1144

Skop v .

(11th

Cir .

was
" The

arrest .

whether

provided [the officer ] wi t h ' fair warning '
violated the

right

the

law

that his conduct
City of Atlanta ,
2007) .

The

" fair

warning " of the unconstitutionality of the al l eged conduct
can

be

derived

from

\\ ( 1)

the

obvious

constitutiona l or statutory language ;

clarity

of

(2) broad holdings or

statements of principle in case law that are not tied to
particularized

facts ;

precedents

are

Guillot ,

that
289

Specifically ,

F.

( 3)

or

not

fairly

App ' x

fact - specific
distinguishable . "
346

339 ,

" the disposi ti ve question

already clearly established ,

as a

the time of Plaintiff ' s arrest ,

(1 1th

Cir .

judicial
Eloy

v.

2008) .

is whether it was

matter of law ,

that at

an objective officer could

not

have concluded reasonably that probable cause existed

to

arrest

Defendants

Plaintiff

under

the

confronted. " Gates ,

72

particular

884

F . 3d a t

circumstances

1303

(emphasis

in

original) .

response
dismiss

in

Again ,
opposition

focuses

(Doc.

4 2 at

Court

has

Court

to

8-10 . )

the

any

of

Plaintiffs '

Etzel ' s

motion

of Mr .

an

law

and the

that

arrest

to

McMullen .

not provided ,

existing

unlawfulness

that

arrest

Plaintiffs have

found ,

the

notes

Defendant

primarily on

not

established

the

clearly

under

the

circumstances present here . See Id . Because the Court finds
that there was at l east arguab l e probable cause to arrest
Mrs . McMullen for obstruction pursuant to O. C. G. A. § 16-1024(a) ,

the

Court

need

not

consider

whether

there

was

probable cause to arrest for the battery charge pursuant to
O. C. G. A. § 16-5-23(a) . See generally Skop ,

485 F . 3d at 1138

(finding that probable cause or arguable probable cause to
arrest the plaintiff for either of the charged offenses is
sufficient
qualified
97 9

to

establish

immunity) ;

(11th Cir .

that

Wilkerson

2013)

the
v.

officer
Seymour ,

is

entitled

7 36

F . 3d

to

97 4 ,

( stating that arguab l e probable cause

to arrest for some offense must exist in order for officers
to

assert

Cty .,

qualif i ed

Ga . ,

568

Accordingly ,
(Doc . 32)

F.

immunity

App ' x

745 ,

from
749

suit) ;
n.l

Reid

(11th

v.

Cir .

Henry
2014 ) .

Defendant Etzel ' s motion for summary judgment

is GRANTED and Mrs . McMullen ' s

unlawful arrest are DISMISSED .

73

§

1983 claims for

2.
In

Excessive force

regards

McMullen ,
summary

to any

claims

of

excessive

force

by Mrs .

Defendant Etzel first contends in her motion for
judgment

that

it

is

"unclear

from

the

McMullens '

Complaint whether they are attempting to make a

claim for

excessive

(Doc .

Attach.

force

behalf

because

the

not

use

of

Etzel

force

claims

20 . ) In response ,
and

McMullen

(1989) .

McMullen . n

32 ,

to the extent that such a claim

that

Etze l
she

against

objectively

42

minimis

is

to

and ,

therefore ,

liability .

entitled to

excessive force claims .

490 90 U. S . 386 ,
(Doc .

de

(Id . )

qualified

(Id . at 19-

Plaintiffs contend that Defendant Etzel ' s

force

was

was

Defendant

immunity on Plaintiffs '

conduct

Mrs .

Defendant Etzel argues that the claim fails

subject

Defendant

Connor ,

of

1 at 14 . ) However ,

has been made,

does

on

at

both

Mr.

McMullen

and

under

Graham

unreasonable

Mr s .
v.

1 09 S . Ct . 1865, 104 L . Ed . 2d 443

11-14 . )

Plaintiffs

also

argue

that

Defendant Etzel is not entitled to qualified immunity .

(Id .

at 14-15 . )
The Court

agrees

with

Defendant

Etzel

that the

force

used against Mrs. McMullen was de minimis force . The law of
this circuit provides
fo rce ,

without more ,

that

" the application of de minimis

will not

support a claim for excessive

74

force

in

violatio n

F . 3d at

1257 .

offense ,

Mrs .

approached

Here ,

of

the

Four th

while t h e

McMullen

Defendant

was

Etzel

Amendment ."

crime at

only
and

issue was a

pushed

Mr .

Nolin ,

away

McMullen

while Defendant Etzel was engaged in securing Mr .
and

reached

McMu ll en .
48 . )

A

her

(Doc .

hand out
45 at

reasonable

12 - 13 ;

officer

situation could perceive
Additionally ,

towards

Defendant

Doc .
on

this

28 ,

the

as

a

scene

behind

and Mr .

4 at

8 : 45-

the

tense

in

threat

she

McMullen

Etzel

Attach .

minor

after
from

207

to her

the video shows that Mrs . McMullen ,

safety .
at most ,

was pushed away and fell into or stumbled against displays
at or near the register .

(Doc .

28 ,

Attach .

4 at

8 : 45-48 . )

While the extent of the injury is not the focus of the de
minimis

force

inquiry ,

the Court

notes that

Plaintiffs do

not cite to any evidence in the record that Mrs .
suffered any
one push away
injury

injury

from this

push .

The

force

from the officer and the

inflicted ,

if any ,

used here ,

arrestee ,

are both minimal .

McMullen

and the

Additionally ,

the Elevent h Circuit has found this type of force to be de
minimis .

McCall

(11th Cir .

v.

2009)

Crosthwait ,

336

F.

App ' x

871 ,

( " We have repeatedly held that a

872-73
push or

shove that causes pain and necessitates no or merely minor
medical

treatment

is

not

a

75

violation

of

the

Fourth

Amendment ,

even

where

the

arrestee

was

handcuffed

and

no

further force was necessary . " ) .
The

Eleventh Circuit

force to be de minimis
601

F.

force

App ' x
used

plaintiff
slammed

841 ,
to

was

use

of

de

the

unintentionally
Balkwill ,

850-51

be

See Gomez v .

(11th

mi n imis

Cir.

side

of

the

into

bumped

1245

involving

an

significant

United States ,

2015 )

where

grabbed by

645 F . 3d 1240 ,

force

found much more

force .

allegedly

against

has

(finding

the

the

unhandcuffed

neck ,

vehicle

choked ,

after

(11th Cir . 2011)

officer

and

plaintiff

officer ) ;

the

the

Croom

v.

(finding the

allegedly

pushing

the

plaintiff to the ground a n d ho l ding her on the ground for
up to ten minutes by placing her foot
to be de minimis) ;
the

force

used

Nolin ,

was

allegedly grabbed
thrown against a

de

F . 3d at

minimis

where

behind by

from
van ,

207

on p l aintiff ' s

the

back

1257

(holding

that

the

plaintiff

was

shoulder

kneed in the back ,

and

wrist ,

and had his head

pushed into the side of the van) .
Accordingly ,
by

Defendant

the Court finds that the force used here

Etzel

was

Fourth Amendment right

de

minimis ,

and

Mrs .

McMullen ' s

to be free from excessive

force at

the hands of law enforcement was not violated . As a result ,
Defendant

Etzel ' s

motion

for

76

summary

judgment

is

GRANTED

and Mrs . McMullen ' s §1983 claim of excessive force against
Defendant Etzel is DISMISSED.
C.

Pl aint i ffs '
Etzel

State

Law

Claims

Against

Defendant

Defendant Etzel contends that the state law claims for
false arrest and assault and battery asserted by Plaintiffs
fail as a matter of law and that , moreover , she is entitled
to official immunity on the claims .
20 . )

In

immunity
(Doc .

r esponse ,
ca n

42

at

be

Plaintiffs

overcome

16 . )

by

acknowledge

a

Plaintiffs ,

(Doc . 32 , Attach . 1 at

showing
however ,

reasonable jury could find that

[Etzel]

of

that

official

actual

ma l ice .

contend

that

" [a]

acted with actual

malice or intent to injure by using extreme force against
the McMullens because the facts , when viewed most favorably
to the plaintiffs ,

show they posed no threat of criminal

con duct " and that , with regards to the false arrest c l aims ,
that malice may be inferred from the total lack of probab l e
cause to arrest .

(Id . )

Under Georgia law , a public officer or employee may be
personally

liable

only

for

ministerial

acts

negligently

performed or discretionary acts performed with malice or an
intent to
Ga .

App .

i njure .
at

130 ,

Cameron ,
768

27 4 Ga .

S . E . 2d

77

at

at
547 .

123 ;

Williams ,

Plaintiffs

do

331
not

contend that

Defendant
(See

discretionary .
official

immunity ,

Etzel ' s

Doc .

42

actions
at

Plaintiffs

at

16 . )

must

issue were

Thus ,

show

to

not

overcome

that

Defendant

Etzel acted with actual malice . Actual malice requires " a
deliberate intention to do an unlawful act . " Adams , 271 Ga .
at 414 ,
from

520 S . E . 2d at 898 . Actual malice cannot be implied

the

plaintiff
Watkins ,

but

circumstances ,
and

supported

by

must

be

evidence

323 Ga . App . at 311 ,

alleged

in

the

by

the

record .

See

744 S . E . 2d at 863 ;

Selvy v .

Morrison , 292 Ga. App . 702 , 704 , 665 S . E. 2d 401 , 405 (2008)
(" Actual

malice

does

not

include

implied malice ,

or

the

reckless disregard for the rights and safety of others . ")
Here ,

Plaintiffs

failed

to allege in t heir complaint

that Defendant Etzel acted with ma l ice or intent to injure
them in their state law claims for assault and battery and
false arrest .
motion
"[a]
act e d

for

(Doc .

summary

reasonable
with

1 at 1-8 . )
judgment ,

jury

actual

could

malice

In response to Defendant's
Plaintiffs

find

or

that

intent

only

argue

[Defendant

to

in j ure

by

that

Etz e l]
using

extreme force aga i nst the McMullens because the facts , when
viewed most favorably to the plaintif f s , show they posed no
threat

of criminal

conduct. "

(Doc .

4 2 at

16 . )

Plaintiffs

have pointed to no evidence that Defendant Etzel committed

78

the

acts

cited

alleged

with

actual
in

to any evidence

malice .

record that

the

Nor

have

Plaintiffs

Defendant

Etze l

had actual intent to injure Plaintiffs . This falls short of
the requirement to s how actual malice or actua l
injure .
1333

See

Bashir v .

(11th

Cir .

Rockdale Cty .,
(finding

2006)

Ga . ,

that

445

while

intent
F . 3d

the

to

1323 ,

" record

supports the conclusion the deputies acted unreasonably and
violated

[the

plaintiff]

plaintiff ' s]

has

not

sustained

the existence of a genu ine
possessed
to

'a

satisfy

App ' x

at

deliberate
the

958-59

Fourth

act ual

hi s

Amendment
burden

right s ,

of

demonstrating

issue of fact that the deputies

intention to do wrong '
malice

( stating

[the

standard . " ) ;

that

the

fact

sufficient

Baker ,

that

the

760

F.

officer

used an e xplet ive during the arrest and a general assertion
by the plaintiff that there exists

sufficient ev i dence to

create

whether

officers

a

question
acted

of

with

fact

about

actual

ma li ce

is

the

defendant

insuff i cie nt

to

satisfy the " demanding standard" of showing actual malice) .
Accordingly ,

Defe ndant Etzel ' s

motion for

is

and

state

GRANTED

Plaintiffs '

law

s ummary judgment
claims

against

Defendant Etzel are DISMISSED . 13

13

of

Plaintiffs ' claims for loss of consortium a re derivative
their sta t e law claims . Accordingly , as Plaintiffs '

79

D.

Plaintiffs ' Claims for Punitive Damages

Although Defendant Etzel did not specifically move to
dismiss

Plaintiff ' s

sake of clarity ,
has

dismissed

claims

for

punitive

the Court finds that ,

Plaintiffs '

1983

§

damages ,

for

the

because this Court

and

state

law

claims

against Defendant Etzel , any derivative claims for punitive
damages must be dismissed. See Lewis ,
667 S . E . 2d at 719
recover

punitive

293 Ga . App . at 750 ,

( " Under Georgia law ,
damages

when

the

a plaint i ff cannot

underlying

tort

claim

fails ." ) ; Butler , 2018 WL 67296 47, at *7 .
CONCLUSION

For

the

W
entworth ,
(Doc .

28)

Summary

foregoing

Defendants

City

of

Port

Phinney , a n d Libby ' s Motion for Summary Judgment
is

GRANTED

Judgment

Plain t i ff s'

reasons ,

and
32)

(Doc .

claims

are

Defendant
is

DISMISSED.

Etzel's

GRANTED.

The

Motion

As

Clerk

a
of

for

resu l t ,
Court

is

DIRECTED to close this case .

SO ORDERED this

~

2~-

day of September 2019 .

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
claims for false arrest and aggravated assault and battery
fail , Pla i ntiffs ' c laims for loss of consortium against
Defendant Etzel are also DISMISSED.

80