Mehta et al v. Foskey et al
Filing
112
ORDER granting in part and denying in part 74 Defendants' Motion for Summary Judgment. Judgment as a matter of law is appropriate for all claims except Plaintiffs' claims relating to the search of his hotel room and the seizure of the pornographic materials. Signed by Chief Judge Lisa G. Wood on 3/7/2013. (csr)
in the Entteb Statd Motrfa Court
for the boutbern itrfrt of atorsia
aptto
tbiton
AuTH H. MEHTA; CK GAS, LLC dlbla 3-D *
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CHEVRON STATION,
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Plaintiffs,
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VS.
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RICHARD R. FOSKEY; and JOHN M.
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BLOOD WORTH,
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Defendants.
CV 5 10-001
[.lkp1*i
Presently before the Court is a Motion for Summary Judgment
filed by Defendants Foskey and Bloodworth. See Dkt. No. 74.
For the reasons set forth below, Foskey and Bloodworth's Motion
for Summary Judgment is DENIED in part and GRANTED in part.
BACKGROUND
Plaintiff Atith Mehta, an Indian male, had an ownership
interest in a convenience store and gas station, called the 3-D
Chevron Station ("Convenience Store"), located in Alma, Georgia.
In early January 2008, Taylor Boatright, a sixteen-year-old
sophomore at Bacon County High School, went to the Convenience
Store to purchase cigarettes. Dkt. No. 93, 9191 2-5. Boatright
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had frequented the Convenience Store for several months because,
according to Boatright, she was able to buy cigarettes there
even though she was underage. Dkt. No. 93, 191 4-5. However,
during this particular visit, the Indian male behind the counter
"flirted" with Boatright. Dkt. No. 82, 11:1-2. As Boatright
was about to leave, the Indian male told her to "hang on" and
handed her a Marlboro Light cigarette box. Dkt. No. 92, ¶ 6.
Marlboro Light was the brand of cigarette that Boatright
typically purchased, however this package was unwrapped and
Boatright had not paid for it. Dkt. No. 82, 11:7-9.
Boatright returned to her car and opened the cigarette box.
Dkt. No. 93, 91 7. Inside the box was a plant bud, which looked
like marijuana. Dkt. No. 93, ¶ 7. Boatright "freaked out" and
immediately called Angie Cox, a family friend of Boatright's who
previously worked at the Southeast Georgia Drug Task Force as a
secretary. Dkt. No. 93, IT 8-10. Cox asked Boatright to come
to Cox's hair salon, the Mop Shop, so the two could talk.
Boatright told Cox about the incident at the Convenience Store
and gave Cox the cigarette box with the purported marijuana.
Dkt. No. 93, ¶91 8-10. Cox identified the bud as marijuana based
on what she had seen while employed on the Southeast Georgia
Drug Task Force. Dkt. No. 76, 36:8-9. Cox said it looked and
smelt like marijuana. Dkt. No. 76, 36:12-14. Boatright's story
alarmed Cox because Cox worried that the man in the Convenience
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Store "was trying to get [Boatright] in an altered frame of mind
to take advantage of" a minor child. Dkt. No. 76, 46:6-13.
Cox subsequently called Officer John Bloodworth, an
investigator with the Bacon County Sheriff's Office. Dkt. No.
93, ¶ 19. Cox had met Bloodworth when they both worked for the
Southeast Georgia Drug Task Force in the 1990's. Dkt. No. 72,
Ex. 11, 15:11-12. Bloodworth testified that they had an
adulterous affair during the 1990's, but Cox specifically denied
it.
Dkt. No. 72, Ex. 11, 15:25; Dkt. No. 76, 20:7-11.
Officer Bloodworth drove to the Mop Shop Salon to speak
with Cox. Whether Boatright was there when Officer Bloodworth
arrived is unclear from the record. Officer Bloodworth
testified that he could not remember when exactly he spoke with
Boatright about the incident at the Convenience Store. See Dkt.
No. 72, Ex. 11, 50:1-23. Cox thought that Boatright was still
at the Mop Shop Salon when Officer Bloodworth arrived. Dkt. No.
76, 76:1. Boatright's best recollection was that she spoke with
Officer Bloodworth at the Mop Shop Salon the same day as the
incident, but she made a second trip to the salon to speak with
Officer Bloodworth. Dkt. No. 82, 34:11-15, 40:21-23.
Cox told Officer Bloodworth that Boatright, a juvenile, had
been to the Convenience Store when the young Indian man who
owned the Convenience Store made implied sexual advances toward
Boatright and handed her an unsealed cigarette box containing a
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marijuana bud. Dkt. No. 93, ¶ 20; Dkt. No. 72, Ex. 11, 27, 121. Officer Bloodworth inspected the cigarette box and the
purported marijuana bud. Dkt. No. 93, ¶ 20. Cox informed
Officer Bloodworth that neither she nor Boatright wanted to be
identified in what might follow. Dkt. No. 82, 46:20-25.
Officer Bloodworth began conducting surveillance on the
Convenience Store. Dkt. No. 93, ¶ 20. He observed a young
Indian male behind the counter and a silver Acura parked in
front of the store. Dkt. No. 93, ¶ 20. Dkt. No. 93, ¶ 20.
Officer Bloodworth conducted a vehicle registration check and
found that the silver Acura was registered to Plaintiff Atith
Mehta. Dkt. No. 93, ¶ 20. Officer Bloodworth requested and
received a copy of the Convenience Store's business license from
the City of Alma Police Department and a copy of Mehta's Georgia
driver's license, permanent resident card, and social security
card. Dkt. No. 93, ¶ 20. The business license was "in the name
of Atith Hiten Mehta." Dkt. No. 74, Ex. 5. Officer Bloodworth,
however, did not enter the Convenience Store or speak with the
young Indian male.
On each of the approximately three occasions Officer
Bloodworth observed the Convenience Store, the Silver Acura was
parked in front of the store and the same young Indian male was
working. Dkt. No. 93, ¶ 20. At night, Officer Bloodworth had
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observed the Silver Acura parked down the Street at the Sunset
Inn.
Dkt. No. 93, ¶ 20.
On the basis of this information, Officer Bloodworth
applied for a search warrant for the Convenience Store. Dkt.
No. 93, ¶ 20. In his affidavit accompanying the application,
Officer Bloodworth described the incident with Boatright. See
Dkt. No. 74, Ex. 5. However, as Boatright and Cox requested,
neither of them were identified by name. See Dkt. No. 74, Ex.
5. Cox was described as a "concerned citizen" Officer
Bloodworth had know for 15 years, who "ha[d] nothing to gain by
giving the information and [was] gainfully employed." Dkt. No.
74, Ex. 5. A magistrate judge issued the search warrant,
allowing Officer Bloodworth to search the Convenience Store and
the silver Acura for "Marijuana, United States Currency,
packaging materials, weighing devices, and other fruits
pertaining to the sales and/or distribution of marijuana." See
Dkt. No. 74, Ex. 5.
That same day Officer Bloodworth accompanied by Sheriff
Foskey and other law enforcement officers went to the
Convenience Store to execute the search warrant. Mehta was
secured in the Convenience Store and shown the search warrant.
Dkt. No. 93, ¶ 30. Mehta testified that he was kept outside of
the Convenience Store during the search. Customers who
approached the Convenience Store were not allowed to enter the
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store or purchase gas while the search was ongoing. Dkt. No.
76, Ex. 6.
Mehta testified that his cell phone was taken from him and,
because the phone rang frequently during the search, Officer
Bloodworth would from time to time ask Mehta who a particular
contact was and how he knew them. Dkt. No. 92, ¶ 6. Officer
Bloodworth asked Mehta for his laptop computer password, and
Mehta provided it. Dkt. No. 92, ¶ 6. Based on this, Mehta
suspected that Officer Bloodworth searched both his phone and
laptop computer. Dkt. No. 92, ¶ 6.
Mehta also testified that, in response to Mehta's request
to speak with his attorney, either Officer Bloodworth or Sheriff
Foskey told him that if he talked to a lawyer, Mehta would "be
in trouble." Dkt. No. 72, Ex. 6, 40:18-22. According to Mehta,
Sheriff Foskey threatened Mehta by telling him he was "going to
have [Nehta] close down the store" and wanted to "make sure
[Mehta] moved out of [Foskey's] town." Dkt. No. 72, Ex. 6,
42:14-17. Mehta also stated that he was asked if the store had
video surveillance cameras, and if so, how to turn those cameras
off. Dkt. No. 90, Ex. 3 ¶ 31.
A canine unit was called in to search the Convenience Store
and Mehta's silver Acura for drug odors, but the canine did not
alert. Although no drugs were found, the officers seized
pornographic videos and magazines and $6,196 cash. Dkt. No. 91,
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T 3. The officers seized the pornography because they
mistakenly believed the manner in which it was displayed
violated a City of Alma ordinance. Dkt. No. 78, 28:1-8.
Officer Bloodworth informed Mehta that the officers did not
have a warrant to search the hotel room but asked Mehta for
consent. Dkt. No. 72, Ex. 6. Officer Bloodworth told Mehta
that if he did not consent, Officer Bloodworth would obtain a
warrant in thirty minutes. Dkt. No. 72, Ex. 6, 36:19-24. Mehta
signed and executed a Consent to Search Form. Dkt. No. 93 ¶ 48.
No drugs were found and no evidence was seized from the hotel
room. Dkt. No. 93, ¶ 53.
Officer Bloodworth arrested Nehta and Mehta was later
criminally charged in connection with the Boatright incident.
Dkt. No. 93, ¶ 64. According to Mehta and the attorney Mehta
retained to defend against his criminal prosecution, the
Sheriff's Office offered to dismiss the criminal prosecution if
Nehta allowed the Sheriff's Office to keep the cash seized.
Dkt. No. 91, ¶ 7. After this offer was refused, the Sheriff's
Office stated it would drop the criminal charges in exchange for
half the cash seized. Dkt. No. 91, ¶ 7. Eventually the
criminal prosecution was dismissed and all of the cash returned
to Mehta because necessary witnesses, presumably Boatright and
Cox, "decline[d] to prosecute." Dkt. No. 90.
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LEGAL STANDARD
Under Federal Rule of Civil Procedure 56(a), summary
judgment is appropriate "if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." The court must view
the evidence and draw all inferences in the light most favorable
to the nonmovant. Adickes v. S.H. Kress & Co., 398 U.S. 144,
157-59 (1970). The party seeking summary judgment must first
identify grounds that show the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24
(1986). To discharge this burden, the movant must show the
court that there is an absence of evidence to support the
nonmoving party's case. Id. at 325. The burden then shifts to
the nonmovant to go beyond the pleadings and present affirmative
evidence to show that a genuine issue of fact does exist.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
DISCUSSION
The only two remaining defendants in this case, Officer
Bloodworth and Sheriff Foskey ("Defendants"), moved for summary
judgment on all claims against them.
I. False Arrest Claim
Defendants seek summary judgment on Mehta's Fourth
Amendment false arrest claim. See Dkt. No. 74. Defendants
assert that actual probable cause existed to justify the
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warrantless arrest, 1 and even if it did not, there was at least
arguable probable cause, such that they are entitled to
qualified immunity.
"[T]he Fourth Amendment permits warrantless arrests in
public places where an officer has probable cause to believe
that a felony has occurred." Florida v. White, 526 U.S. 559,
565 (1999) . Probable cause is "defined in terms of facts and
circumstances sufficient to warrant a prudent man in believing
that the suspect had committed or was committing an offense."
Crosby v. Monroe Cnty., 394 F.3d 1328, 1332 (11th Cir. 2004)
(citing Gerstein v. Pugh, 420 U.S. 103, 111 (1975)). Probable
cause does not require certainty of guilt, only "a reasonable
ground for belief of guilt." Maryland v. Pringle, 540 U.S. 366,
371 (2003). The existence of probable cause is determined
objectively, "without regard to the law enforcement officers'
subjective beliefs." Craig v. Singletary, 127 F.3d 1030, 1042
(11th Cir. 1997)
Additionally, in § 1983 actions, officers are entitled to
qualified immunity if "there was arguable probable cause for an
arrest even if actual probable cause did not exist." Crosby,
394 F.3d at 1332; see also Jones v. Cannon, 174 F.3d 1271, 1283
n.3 (11th Cir. 1999) ("Arguable probable cause, not the higher
At the time of the arrest, Defendants had a search warrant, but no
arrest warrant.
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standard of actual probable cause, governs the qualified
immunity inquiry.")
Here, at the time of Mehta's arrest, Officer Bloodworth (1)
had been informed that the young Indian male who owned the
Convenience Store had given a sixteen year old girl a marijuana
bud when she went into the store to buy cigarettes underage; (2)
Officer Bloodworth had been given the marijuana bud and,
although he had not tested it, he identified it as marijuana;
(3) he had observed only one Indian male working at the
Convenience Store; and (4) and had seen smoking pipes, which,
although legal to sell, could also be used to smoke marijuana.
Mehta emphasizes that the information Officer Bloodworth
received about the marijuana bud in the cigarette box was
second-hand because Officer Bloodworth did not interview
Boatright until after the arrest. However, the record does not
fully support this assertion. Officer Bloodworth testified that
he could not remember whether it was before or after the search
warrant that he spoke with Boatright. Dkt. No. 72, Ex. 11,
50:1-23. Both Boatright and Cox testified that Officer
Bloodworth spoke with Boatright the same day Boatright received
the marijuana bud, thus before the search warrant.
Dkt. No.
76, 76:1; Dkt. No. 82, 34:11-15, 40:21-23. Plaintiffs attempt
to stretch Officer Bloodworth's statement that he did not
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remember when the conversation occurred into evidence that the
conversation occurred before the search warrant.
However, even if Officer Bloodworth had not spoken with
Boatright prior to the search warrant and resulting arrest, a
reasonable officer in Defendants' position would have probable
cause to arrest Mehta based on the information supplied by Cox.
"In determining whether an informant's tip rises to the level of
probable cause, [a court] assess[es] the totality of the
circumstances." Ortega v.Christian, 85 F.3d 1521, 1525 (11th
Cir. 1996) (citations omitted). This Court must also "consider
the relevance of factors such as the informant's 'veracity,'
'reliability,' and 'basis of knowledge.'" Id. (citations
omitted)
Here, as Officer Bloodworth stated in his search warrant,
he had known Cox for fifteen years. Dkt. No. 74, Ex. 5. While
Cox did not have personal knowledge of the incident at the
Convenience Store, she did have significant physical evidence,
namely the marijuana bud in the cigarette box, which Officer
Bloodworth was able to inspect.
Additionally, "the corroboration of the details of an
informant's tip through independent police work adds significant
value to the probable cause analysis." Id. Here, Officer
Bloodworth, through an independent investigation, was able to
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corroborate Cox's story to the extent that a young Indian male
did in fact work at the Convenience Store and owned it.
On the basis of the information in Officer Bloodworth's
possession, this Court holds that Defendants had probable cause
to arrest Mehta for selling marijuana or selling cigarettes to a
minor. 2 See United States v. Vazquez, 406 F. App'x 430, 432
(11th Cir. 2010) (probable cause for warrantless arrest "based
[solely] on information from a confidential informant, who had
obtained cocaine previously from [the defendant] and who
personally observed cocaine in the floorboard of [the
defendant's] vehicle shortly before the arrest"). Officer
Bloodworth had heard Boatright's account, received the actual
drugs Boatright received, and saw someone matching Boatright's
description at the location Boatright described. Thus,
Defendants are entitled to summary judgment on the federal false
arrest claim.
II. Unconstitutional Search Claims
In addition to the false arrest claim, Plaintiffs brought
another type of Fourth Amendment claim, unlawful search and
2
At the very least, Defendants had arguable probable cause to arrest
Mehta. Under similar circumstances, the Eleventh Circuit affirmed
qualified immunity to a police officer on the basis of arguable
probable cause. In Williams v. Taylor-Lee, an arresting officer had
arguable probable cause to arrest the plaintiff for terroristic
threats when the officer had heard an account of the incident by the
victim and, after travelling to the location described by the victim,
found a woman matching the description given by the victim. 397 Fed.
App'x 608, 609-610 (11th Cir. 2010).
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seizure. This claim has three components, the search of the
Convenience Store and the car with a warrant, the warrantless
search of Mehta's hotel room, and the warrantless seizure of
Plaintiffs' pornographic materials.
Plaintiffs argue that "Bloodworth included reckless and
false statements and omissions in his application for the Search
Warrant." See Dkt. No. 90 at 11. Presumably, the false
statements Plaintiffs refer to are that Officer Bloodworth's
affidavit referred to Mehta by name when describing the story
provided by Cox and Boatright, when in fact, Boatright had only
referred to him as the young Indian male working behind the
counter. See Dkt. No. 74, Ex. 5; Dkt. No. 76, 44:14-17.
Officer Bloodworth swore that "When the juvenile asked Atith
Hiten Mehta for a pack of cigarettes, the Indian gave her a
Marlboro light cigarette box, which contained a marijuana bud."
Dkt. No. 74, Ex. S. Plaintiffs argue that this statement was
false because the information Officer Bloodworth received was
that an Indian male had done that, not that Mehta had done that.
Neither Cox not Boatright knew Mehta by name. Plaintiffs
contend this substitution is significant because in fact,
another Indian male, Vastal Pitwha, was working at the
Convenience Store when Boatright came in. Dkt. No. 92, ¶ 2.
Presumably, the omission Plaintiffs refer to was that
Officer Bloodworth did not include the fact that, during his
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surveillance of the Convenience Store, he had not observed any
incriminating or suspicious activity.
These "false statements" and "omissions," however, are not
enough to invalidate the search warrant. "Negligent or innocent
mistakes do not violate the Fourth Amendment." Mauahon v. Bibb
Cnty., 160 F.3d 658, 660 (11th Cir. 1998) (citing Franks v.
Delaware, 438 U.S. 154, 171 (1978)) . "To invalidate a warrant
based on incorrect information provided in a supporting
affidavit one must show that officers intentionally or
recklessly included false information or omitted necessary true
information." Id.
Here, Officer Bloodworth's substitution of Nehta's name in
place of "an Indian male" was, at the very most, a negligent
mistake. Officer Bloodworth testified that Cox told him that
the Indian male who owned the store gave Boatright the cigarette
box. Dkt. No. 72, Ex. 11, 27, 1-21. The Convenience Store's
business license was issued to an Atith Mehta and the silver
Acura parked in front of the store was also registered to an
Atith Mehta. Dkt. No. 74, Ex. 5. Thus, Officer Bloodworth was
able to confirm Mehta as the owner of the Convenience Store,
which was how the perpetrator was described to Officer
Bloodworth. The copies of Mehta's Georgia driver's license,
permanent resident card, and social security card all confirmed
that Mehta was indeed a young Indian male. Dkt. No. 93, ¶ 20.
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Additionally, Officer Bloodworth had no reason to suspect that
there was more than one Indian male that worked at the
Convenience Store. Boatright's story did not include more than
one Indian male, and, during the course of his investigation,
Officer Bloodworth had only observed one Indian male working at
the Convenience Store.
Officer Bloodworth's mistake, if it can even be called
that, is similar to the officers' mistake in Maughon, where the
§ 1983 plaintiff alleged that the officers executing a search
warrant failed to ascertain that someone else owned one half of
the land to be searched. Id. Officer Bloodworth, like the
officers in Maughon, is entitled to qualified immunity on this
issue because inserting Mehta's name in place of "an Indian
male" was at most a "negligent mistake." Id.; see also United
States v. Shaw, 482 F. App'x 449, 452 (11th Cir. 2012)
(officer's "poor choice of words" in stating that he had
witnessed a drug buy in the defendant's house, when, in fact,
the drug buy took place on a wheelchair ramp on the side of the
defendant's bedroom, did not invalidate the warrant).
For an omission to invalidate a warrant, inclusion of the
omitted information must result in "a lack of probable cause for
issuance of the warrant[]." United States v. Novaton, 271 F.3d
968, 986-87 (11th Cir. 2001) . In Shaw, the Eleventh Circuit
held that omission of information that "tended to show" that a
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drug purchaser "was getting cocaine from [another] source," but
"did not diminish the probable cause obtained during
previous purchases" was not necessary information. 482 F. App'x
at 452. Likewise, while Officer Bloodworth's failure to uncover
additional illegal actions tended to show that, perhaps, the
alleged incident never took place, it did not diminish or
eliminate the possibility that the earlier incident occurred.
Therefore, it was not necessary information, which if included,
would have destroyed probable cause.
Plaintiffs also contend that Mehta's Fourth Amendment
rights were violated by Officer Bloodworth searching his cell
phone and computer. Neither of these items were covered by the
warrant. However, Defendants are entitled to qualified immunity
on this claim because it had not been clearly established that
searching those items violated federal law.
"Qualified Immunity offers complete protection for
individual public officials performing discretionary functions
'insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.'" Loftus v. Clark-Moore, 690 F.3d 1200, 1204
(11th Cir. 2012) (quoting Sherrodv. Johnson, 667 F.3d 1359,
1363 (11th Cir. 2012)) . "The inquiry whether a federal right is
clearly established 'must be undertaken in light of the specific
context of the case, not as a broad general proposition.'" Id.
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(quoting Coffin v. Brandau, 642 F.3d 999, 1013 (11th Cir. 2011)
(en banc)) . "The relevant, dispositive inquiry in determining
whether a right is clearly established is whether it would be
clear to a reasonable state official that his conduct was
unlawful in the situation he confronted." Id. (emphasis in
original and citations omitted). Only "binding precedent—cases
from the United States Supreme Court, the Eleventh Circuit, and
the highest court of the state under which the claim arose"—can
create clearly establish rights. Coffin, 642 F.3d at 1013.
Once a defendant has established that he was performing a
discretionary function, the plaintiff bears the burden to show
that the right was clearly established at the time of the
violation. Barnes v. Zaccarri, 669 F.3d 1295, 1303 (11th Cir.
2012)
Here, Plaintiffs have not identified, and this Court has
not found, any binding precedent establishing that searching a
computer or cell phone while executing a search warrant violated
the Fourth Amendment. Plaintiffs distinguished the case
identified by Defendants, United States v. Allen, but did not
cite any additional case law. 416 F. App'x 21, 27 (11th Cir.
2011) . Allen dealt with warrantless searches of cell phones
incident to arrest. See Id. Allen noted that, as of January
2011, the legality of a warrantless search of a cell phone
incident to arrest was "an unanswered question in this Circuit."
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Id. Plaintiffs correctly assert that this case does not involve
a search incident to arrest, but Plaintiffs have not elaborated
on why, in this case, the Fourth Amendment right was clearly
established as of January 2008. Because Defendants acted
without the guidance of such case law, they are immune from
liability.
Mehta also alleges that his Fourth Amendment rights were
violated by the warrantless search of his hotel room. "It is
well settled under the Fourth and Fourteenth Amendments that a
search conducted without a warrant issued upon probable cause is
'per se unreasonable . . . subject only to a few specifically
established and well-delineated exceptions." Schnecklothv.
Bustamonte, 412 U.S. 218, 219 (1973) (citing Katz v. United
States, 389 U.S. 347, 357 (1967)). However,
"jilt is equally
well settled that one of the specifically established exceptions
to the requirements of both a warrant and probable cause is a
search that is conducted pursuant to consent." Id.
In this case, it is undisputed that Mehta signed and
executed a "Consent to Search" form to allow the officers to
search his motel room. Mehta argues that this form was not
effective because his consent was not voluntary.
Consent to a warrantless search is voluntary if it is the
"product of an essentially free and unconstrained choice."
United States v. Garcia, 890 F.2d 355, 360 (11th Cir. 1989)
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I
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"[W]hether a consent to a search was in fact 'voluntary' or was
the product of duress or coercion, express or implied, is a
question of fact to be determined from the totality of all the
circumstances." Id. at 227. The Eleventh Circuit has
identified six factors, none of which are dispositive, in
determining voluntariness. United States v. Chemaly, 741 F.2d
1346, 1352 (11th Cir. 1984) . These factors are: (1) "the
voluntariness of the [searched party's] custodial status," (2)
"the presence of coercive police procedure," (3) "the extent and
level of the defendant's cooperation with police," (4) "the
[searched party's] awareness of his right to refuse consent to
the search," (5) "the [searched party's] education and
intelligence," and (6) "the defendant's belief that no
incriminating evidence will be found." Id.
Applying those factors here, the final four factors favor
Defendants, whereas the first two factors favor Mehta. However,
given the coercive environment Mehta described, this Court finds
that, if Mehta's testimony is true, the consent was involuntary.
As for the first factor, Mehta was in police custody and
not free to leave. Dkt. No. 78, 19:6-12; Dkt. No. 81, 51:14-18.
While he was not in handcuffs during the whole encounter, Mehta
had been told as soon as the officers arrived that he would be
arrested and, during the entire search, he was guarded by a
police officer.
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The second factor, coercive police procedure, also suggests
Mehta's consent was involuntary. At the summary judgment phase,
this Court cannot weigh evidence or make credibility
determinations. Factual disputes must be resolved in favor of
the non-moving party. Here, although disputed, Mehta's
testimony includes several instances of coercive police
behavior. Mehta stated that, after he requested to speak with
an attorney, one of the Defendants denied that request and told
him that "if he call[ed] up [his] lawyer, [Mehta would] be in
trouble." Dkt. No. 72, Ex. 6, 40:18-22. According to Mehta,
one of the Defendants also denied his requests to speak with his
father and told him he "couldn't call up nobody
[sic]." Dkt.
No. 72, Ex. 6, 28:7-15. Sheriff Foskey allegedly told Mehta
that he was going to "close down the store and make sure that
[Mehta] move[d] out of [Foskey's] town." Dkt. No. 72, Ex. 6,
42:14-17. Mehta also states that an officer asked him if the
Convenience Store had "inside video surveillance cameras"
running, "and if so, how to turn them off." Dkt. No. 92, ¶ 7.
Mehta was asked for consent after being detained for two to
three hours. Dkt. No. 72, Ex. 6, 20:7-8. During that time,
Mehta was unable to see inside the store because posters covered
up most of the Convenience Store's windows. Dkt. No. 72, Ex. 6,
40:1-2. Numerous law enforcement officers participated in the
search of the Convenience Store and approximately a dozen police
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vehicles surrounded the area. Dkt. No. 72, Ex. 11, 78:5-15.
Also, when asking for consent, the officers told Mehta, if he
refused, the officers would have a warrant in thirty minutes.
Dkt. No. 72, Ex. 6, 36:19-24.
Mehta's contention that Defendants denied his request for
an attorney and told him that he would be "in trouble" if he
spoke to an attorney is disturbing. The United States
Constitution requires that law enforcement officers honor an
individual's request for an attorney during custodial
interrogation. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).
Here, Mehta was in custody and being subjected to questioning.
However, not only did Defendants deny Mehta's request but they
also threatened Mehta with additional consequences if Mehta did
speak with an attorney. Cf. United State v. Boulette, 265 F.
App'x 895, 898-899 (11th Cir. 2008) (consent voluntary where
given after speaking with attorney for ten minutes).
While there is no constitutional right to speak with family
members, Mehta also contends that he was forbidden from speaking
with his father. The Eleventh Circuit has indicated that
allowing a criminal defendant to speak with a family member
prior to consenting to a search weighs in favor of
voluntariness. See United States v. Baker, 206 F. App'x 928,
930 (11th Cir. 2006) (consent voluntary when given after
consulting with wife); United States v. Williams, 199 F. App'x
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828, (11th Cir. 2006) (same) . Refusing such a request can
contribute to an atmosphere of coercion. See United States v.
Once Piece of Real Property Located at 58000 SW 74th Ave.,
Miami, Fla., 363 F.3d 1099 (11th Cir. 2004) (denying
Government's unopposed motion for summary judgment in forfeiture
action where criminal defendant's girlfriend stated that
criminal defendant's request for a phone call was refused).
Likewise, Sheriff Foskey's statements to Mehta about
ensuring that Mehta left Foskey's town were also coercive. The
Eleventh Circuit has warned that an individual cannot be
"intimidated or brow beaten into consenting to [a] search."
United States v. Purcell, 236 F.3d 1274, 1281 (11th Cir. 2001)
(finding consent voluntary when it resulted from a "low-key and
professional" encounter with law enforcement officers); see also
United States v. Smith, 199 F. App'x 759, (11th Cir. 2006)
(consent after "polite and cooperative" interaction with police
officers was voluntary)
In United States v. Welch, the Eleventh Circuit, in dicta,
stated "a warning that social workers will come to care for
children if their adult caregivers bec[a]me unavailable on
account of detention is [not] necessarily an improperly coercive
threat, as opposed to helpful information assuring that children
will not be abandoned to the street." 683 F.3d 1304, 1309 n.20
(11th Cir. 2012) . Here, in contrast, the statements made by
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22
Defendants have no benign alternative meanings. Sheriff Foskey
informing Mehta he wanted Mehta out of his town was in no way
"helpful information." Id. Nor could the statement that
speaking with an attorney would lead to "trouble" be anything
but threatening.
Standing alone, the presence of a large number of officers
or a lengthy search does not render consent involuntary.
However, when combined with other circumstances, these factors
suggest a coercive atmosphere. See United States v. Boulette,
265 F. App'x 895 (11th Cir. 2008) ("Although we have deemed
nighttime searches more intrusive than daytime searches . . . a
search conducted late at night does not, standing alone, negate
the voluntariness of one's consent to search where the totality
of the circumstances demonstrates that consent was voluntary.");
United States v. Edmondson, 791 F.2d 1512, 1515 (11th Cir. 1986)
("The presence of a number of officers tends to suggest an
undertaking which is not entirely dependent on the consent and
cooperation of the suspect."). Here, at least eleven officers
and a dozen or so law enforcement vehicles "converged" onto
Mehta's property. Dkt. No. 72, Ex. 11, 78:5-15. A canine unit
with a drug-sniffing dog was also called onto the scene. And
the consent request came after Mehta had been forced to stand
outside for two to three hours while the officers searched the
Convenience Store. Dkt. No. 72, Ex. 6, 20:7-8.
AO 72A
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In opposition to summary judgment, Mehta argues that
Defendants' statement that if Mehta did not consent, they would
obtain a warrant within thirty minutes, was coercive. That
statement, however, unlike other statements Defendants made, was
entirely permissible. Officers are free to inform an individual
of their intent to seek a warrant if consent is refused. See
Welch, 683 F.3d at 1309 (consent voluntary when officers said
they would receive a warrant if consent was refused but that the
warrant "would take a while"); United States v. Rios, 443 F.
App'x 433, (11th Cit. 2011) (consent voluntary even though
officers informed defendant that they would seek a warrant if he
did not consent); United States v. Long, 866 F.2d 402, 405 (11th
Cir. 1989) (statement that officers would "dig up the place" if
they came back with a warrant did not amount to coercion).
The next four factors, as opposed to the first two, all
weigh in favor of Mehta's consent being voluntary. In terms of
the third factor, Mehta did, to some extent, cooperate with the
police. Mehta provided Bloodworth with his computer password.
Dkt. No. 72, Ex. 6, 34. However, a small degree of cooperation
alone does not require a finding of voluntariness. See State v.
Davis, 404 S.E.2d 100 (Ga. 1991) (consent involuntary when,
among other things, defendant's mother gave officers key to
house after they informed her they would break down the door if
she refused)
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Mehta also presumably was aware that he had the right to
refuse consent because the form he signed stated that he
understood he had "the right to refuse to consent to the search
described above and to refuse to sign [the] form." However,
given that Defendants had ignored Mehta's request for a lawyer,
Mehta may have reasonably believed his decision on the consent
issue would also be ignored.
By all accounts, Nehta was well-educated and bright. He
attended school both in the United States and India and had been
successfully operating several businesses. Dkt. No. 72, Ex. 6,
6:8-9, 89:6-23.
The final factor—the consenting party's belief that no
incriminating evidence will be found—also suggests
voluntariness. Mehta testified that there was nothing in the
hotel room he did not want the police officers to see. Dkt. No.
72, Ex. 6, 87:3-6; see also United States v. Purcell, 236 F.3d
1274, 1276 (11th Cir. 2001) (consent valid when, among other
things, defendant stated that he consented because felt he had
nothing to hide); United States v. Hildago, 7 F.3d 1566, 1568
(11th Cir. 1993) (same). Mehta's statement is supported by the
fact that the search of the hotel room did not uncover any
incriminating evidence.
In viewing the totality of the circumstances, this Court
finds that Mehta's consent was not voluntarily. Because of the
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coercive effect of a number of Defendants' actions, Mehta's
consent was not the "product of an essentially free and
unconstrained choice." Garcia, 890 F.2d at 360. Most of these
actions are disputed, but, for the purposes of this Motion, this
Court must credit Mehta's testimony.
Even though Mehta's consent was involuntary, Defendants
could avoid liability if it was not clearly established that
their actions violated federal law. However, given the
egregious conduct Mehta testified to, no reasonable officer
would conclude those actions were permissible. "For a
constitutional right to be clearly established, its contours
must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right." See Hope
v. Peizer, 536 U.S. 730, 739 (2002) (citations omitted)
Well before January 2008, the United States Supreme Court
had held that law enforcement officers must respect an
individual's request for an attorney. See Edwards, 451 U.S. at
484-85. Not only did Defendants refuse Mehta's request, they
threatened additional consequences should he exercise his
rights. Furthermore, at the time Defendants acted, the Eleventh
Circuit had found consent to be involuntary in circumstances
less extreme than the present case. See United States v. TovarRico, 61 F.3d 1529, 1535-36 (11th Cir. 1995); United States v.
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26
Edmondson, 791 F.2d 1512, 1515-16 (11th Cir. 1986); United
States v. Chernaly, 741 F.2d 1346, 1353 (11th Cir. 1984)
Specifically, the Eleventh Circuit's opinion in One Piece
of Real Property provides considerable guidance. 363 F.3d 1099.
In that case, the court denied the Government's unopposed motion
for summary judgment in a forfeiture action. Id. at 1100.
Based on the testimony of the property owner's girlfriend, the
court found disputed issues of material fact. Id. The
girlfriend deposed that the officers denied the property owner's
repeated request for an attorney, refused to allow a phone call
so that the property owner could obtain more clothing (at the
time, he was dressed only in a towel), told the property owner
that if he did not consent they would "tear his house apart and
arrest his girlfriend," and that, when the property owner
attempted to sign the blank indicating refusal of consent, the
police stopped him and told him to sign elsewhere. Id. If
true, the girlfriend's testimony indicated "that the search was
not consensual and that its eventual occurrence was therefore,
illegal." Id. at 1103.
The situation Mehta described strongly resembles the
situation described by the deponent in One Piece of Real
Property, which the Eleventh Circuit considered coercive. Mehta
contends that, like the property owner in One Piece of Real
Property, his repeated requests to speak with an attorney or a
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family member were refused. Defendants stated that if Mehta did
speak with an attorney, he would be in "trouble." Dkt. No. 72,
Ex. 6, 40:18-22. Sheriff Foskey said that he wanted Mehta out
of Foskey's "town," which correlates to the threat in One Piece
of Real Property that the officers would "tear [the property
owner's] house apart." Dkt. No. 72, Ex. 6, 42:14-17. Mehta was
asked if the Convenience Store had running video surveillance
cameras, and if so, how to turn them off. Dkt. No. 92, ¶ 7.
The likely implication of this request was that the officers did
not want documentary evidence of what was to follow. The
situation in this case, like the situation in One Piece of Real
Property, involved an element of humiliation; Officer Bloodworth
had both Mehta's wallet and his cell phone and, when people
called Mehta's cell phone, Officer Bloodworth would ask Mehta
who these people were and how he knew them. Furthermore, Mehta
was detained outside of the Convenience Store for two to three
hours and had no knowledge of what was taking place inside
because the Convenience Store windows were blocked by posters.
Dkt. No. 72, Ex. 6, 20:7-8, 4-:1-2. A dozen law enforcement
vehicles and a canine unit were on the scene, turning away
customers who attempted to enter the Convenience Store's parking
lot and gas pumps.
In sum, no reasonable officer would have believed that
ehta's consent was voluntary. Existing case law gave
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(Rev. 8/82)
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Defendants "fair warning" of the unlawfulness of their conduct.
Hope, 536 U.S. at 740 n.10. Accordingly, summary judgment on
Mehta's claim relating to the search of the hotel room is
denied.
III. Unconstitutional Seizure of Pornography
Plaintiffs contend that the seizure of pornography from the
Convenience Store violated the Plaintiffs' constitutional
rights. This particular claim implicates both First and Fourth
Amendment rights. Defendants argue that Plaintiffs' Complaint
only included a claim that the seizure was made without preseizure judicial review and did not include a claim that the
seizure was made without a warrant. While Plaintiffs did
include a paragraph specific to pre-seizure judicial review,
viewing Count III as a whole, it is clear that Plaintiffs also
alleged the seizure was unlawful because it was warrantless.
See Dkt. No. 1. Plaintiffs' incorporation of earlier paragraphs
in the Count demonstrated that the Search Warrant related only
to distribution of marijuana, and not pornography. See Dkt. No.
¶ 78. Plaintiffs specification of one aspect of the seizure
they contend was unlawful, does not exclude other unlawful
aspects.
In 2008, existing United States Supreme Court precedent
clearly established that, at a minimum, a warrant was needed
prior to the seizure of First Amendment-protected books and
29
AO 72A
(Rev. 8/82)
magazines. "The First Amendment imposes special constraints on
searches for and seizures of presumptively protected material
and requires that the Fourth Amendment be applied with
'scrupulous exactitude' in such circumstances." Maryland v.
Macon, 472 U.S. 463, 468 (1985) (citations omitted); see also
Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 62-63 (1989)
("[T]his Court has repeatedly held that rigorous procedural
safeguards must be employed before expressive materials can be
seized as 'obscene.'"); Lo-Ji Sales, Inc. v. New York, 442 U.S.
319, 328 (1979) ("Courts will scrutinize any large-scale seizure
of books, films, or other materials presumptively protected
under the First Amendment . . . .") . "Consequently, the [United
States Supreme] Court has imposed particularized rules
applicable to searches for and seizures of allegedly obscene
film, books, and papers." Maryland v. Macon, 472 U.S. 463, 468
(1985)
Supreme Court precedent clearly required that officers
obtain a warrant before seizing First-Amendment protected
materials, such as the books, DVDs, and magazines at issue here.
Fort Wayne Books, 489 U.S. at 63
("[W]hile the general rule
under the Fourth Amendment is that any and all contraband,
instrumentalities, and evidence of crimes may be seized on
probable cause (and even without a warrant in various
circumstances), it is otherwise when materials presumptively
AO 72A
(Rev. 8/82)
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protected by the First Amendment are involved."); Lo-Ji Sales,
442 U.S. at 326 n.5 ("[M]aterials [arguably protected by the
First Amendment] normally may not be seized on the basis of
alleged obscenity without a warrant."); Roaden v. Kentucky, 413
U.S. 496, 504 (1973) (stating that 'the seizure of all the books
in a bookstore . . . . without the authority of a
constitutionally sufficient warrant[] is plainly a form of prior
restraint and is, in those circumstances, unreasonable under
Fourth Amendment standards.").
The cases cited by Defendants are unavailing because those
cases deal with when, after already securing a warrant, law
enforcement must also secure a judicial finding of obscenity
prior to seizure. See Heller v. New York, 413 U.S. 483 (1973)
(stating that there is no absolute right to a prior adversary
hearing where the allegedly obscene material is seized pursuant
to a warrant to preserve material as evidence in a criminal
prosecution); Wallace v. Wellborn, 204 F.3d 165, 166-67 (5th
Cir. 2000) (officers obtained warrant prior to seizure but did
not have a pre-seizure judicial determination of obscenity).
Seizure of allegedly obscene books, DVDs, and magazines without
a warrant was a clearly established constitutional violation in
2008. Accordingly, Defendants are not entitled to qualified
immunity on this claim.
AO 72A
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Defendants assertion that the seizure of the books,
magazines, and DVDs was justified under the plain view exception
to the warrant requirement is also unpersuasive. The United
States Supreme Court has repeatedly emphasized that the
exceptions to the warrant requirement normally do not apply to
First Amendment protected materials. See Fort Wayne Books, Inc.
v. Indiana, 489 U.S. 46, 63 (1989)
("[W]hile the general rule
under the Fourth Amendment is that any and all contraband,
instrumentalities, and evidence of crimes may be seized on
probable cause (and even without a warrant in various
circumstances), it is otherwise when materials presumptively
protected by the First Amendment are involved."); Maryland v.
Macon, 472 U.S. 463, 468 (1985)
("[T]he Court has imposed
particularized rules applicable to searches for and seizures of
allegedly obscene film, books, and papers."); Roaden v.
Kentucky, 413 U.S. 496, 502 (1973) ("The seizure of instruments
of a crime, such as a pistol or a knife, or 'contraband or
stolen goods or objects dangerous in themselves are to be
distinguished from quantities of books and movie films when a
court appraises the reasonableness of the seizure under the
Fourth or Fourteenth Amendment standards.") . More specifically,
the United States Supreme Court has addressed the application of
the plain view exception to First Amendment materials. In Lo-ii
Sales, the Court stated that: "[OJf course, contraband may be
AO 72A
(Rev. 8/82)
32
seized without a warrant under the 'plain view doctrine.' But
we have recognized special constraints upon searches for and
seizures of material arguably protected by the First Amendment;
materials normally may not be seized on the basis of alleged
obscenity without a warrant." 442 U.S. at 326 n.5 (citations
omitted). Accordingly, summary judgment on this claim is
inappropriate.
IV. Federal Malicious Prosecution Claim
Mehta alleged that Defendants violated his Fourth Amendment
rights by maliciously prosecuting him for distribution of
marijuana. Complaint ¶ 91. The Eleventh Circuit "has
identified malicious prosecution as a violation of the Fourth
Amendment and a viable constitutional tort cognizable under
§ 1983." Wood v. Kesler, 323 F.3d 872, 881 (11th Cir. 2003).
"[B]oth state and federal law help inform the elements of the
common law tort of malicious prosecution, [but] a Fourth
Amendment malicious prosecution claim under § 1983 remains a
federal constitutional claim, and its elements and whether they
are met are controlled by federal law." Id. at 882. For a
federal malicious prosecution claim arising from events in
Georgia, the constituent elements are: "a criminal prosecution
instituted or continued by the present defendant; (2) with
malice and without probabJe cause; (3) that terminated in the
plaintiff accused's favor; and (4) caused damage to the
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(Rev. 8/82)
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plaintiff accused." Id. The "existence of probable cause
defeats a § 1983 malicious prosecution claim." Grider v. City
of Aurburn, Ala., 618 F.3d 1240, 1256 (11th Cir. 2010). Even in
the absence of actual probable cause, arguable probable cause
entitles a malicious prosecution defendant to qualified
immunity. Id. at 1257.
Here, as discussed above, Defendants had both actual and
arguable probable cause that Mehta distributed marijuana to a
minor. Consequently, summary judgment on Mehta's federal
malicious prosecution claim is appropriate.
V. State Law Claims
Plaintiffs brought several state law claims—state law
malicious prosecution, state law false imprisonment, intentional
infliction of emotional distress, and negligent supervision and
hiring. See Dkt. No. 1.
Defendants are entitled to summary judgment on Mehta's
state law malicious prosecution and false arrest claims. Like
its federal counterpart, Mehta's state law malicious prosecution
fails because Defendants had probable cause to arrest and
prosecute Mehta. Like federal law, Georgia law requires that a
plaintiff demonstrate that the prosecution was "without probable
cause." O.C.G.A. § 51-7-40. As discussed above, Defendants had
probable cause. Likewise, want of probable cause is required
for a false arrest claim in Georgia. See Adams v. Carlisle, 630
AO 72A
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34
S.E.2d 529, 535-36 (Ga. Ct. App. 2006). Thus, this claim fails
as well.
Additionally, Mehta's intentional infliction of emotional
distress claim fails on the merits. To succeed on this claim, a
plaintiff must prove (1) intentional or reckless conduct, (2)
extreme and outrageous conduct, (3) a casual connection between
the wrongful conduct and the emotional distress, and (4) severe
emotional distress. Phinazze v. Interstate Nationlease, Inc.,
514 S.E.2d 843, 844-45 (Ga. Ct. App. 1999). "Whether a claim
rises to the requisite level of outrageousness and egregiousness
to sustain a claim for intentional infliction of emotional
distress is a question of law." Id. (citations omitted).
Georgia sets a high bar for the type of conduct that qualifies.
"Liability has been found only where the conduct has been so
outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community."
Bowers v. Estep, 420 S.E.2d 336, 339 (Ga. Ct. App. 1992). The
conduct Mehta described falls short of the mark. Cf. Blanton v.
Duru, 543 S.E.2d 448 (Ga. Ct. App. 2000) (trial court's award of
damages for intentional infliction of emotional distress
affirmed where foreclosure proceedings were instituted pursuant
to security deed that the court had ordered to be canceled); Am.
Finance & Loan Corp. v. Coots, 125 S.E.2d 689 (Ga. Ct. App.
AO 72A
(Rev. 8/82)
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35
1962) (terrorizing frightened plaintiff at gunpoint in attempt
to collect a bill actionable); Stephens v. Waits, 184 S.E. 781
(Ga. Ct. App. 1936) (allowing recovery where a defendant
physically intimidated frightened mourners as they attempted to
bury a family member at the cemetery).
Finally, summary judgment is appropriate on Plaintiffs'
negligent hiring and supervision claims. To establish a
negligent retention or supervision claim, the employer must have
known or should have known that the employee "posed a risk of
harm to others where it [was] reasonably foreseeable from the
employee's tendencies or propensities that the employee could
cause the type of harm sustained by the plaintiff." Drury v.
Harris Ventures, Inc., 691 S.E.2d 356, 548 (Ga. Ct. App. 2010).
Plaintiffs have failed to specify how Sheriff Foskey was
negligent. The only evidence in the record about any of Officer
Bloodworth's propensities is evidence on his propensity for
extra-marital affairs. This, however, is clearly not the type
of misconduct Plaintiffs complain of. See Alpharetta First
United Methodist Church v. Stewart, 472 S.E.2d 532, 535 (Ga. Ct.
App. 1996) (granting summary judgment because plaintiff failed
to prove that the defendant knew of an employee's propensity to
commit the type of misconduct at issue); Remediation Res., Inc.
v. Balding, 635 S.E.2d 332, 335 (Ga. Ct. App. 2006) ("[A]
AO 72A
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plaintiff must produce some evidence of incidents similar to the
behavior that was the cause of the injury at issue.")
CONCLUSION
For the reasons stated above, Defendants' Motion for
Summary Judgment, Dkt. No. 74, is GRANTED in part and DENIED in
part. Judgment as a matter of law is appropriate for all claims
except Plaintiffs' claims relating to the search of his hotel
room and the seizure of the pornographic materials.
SO ORDERED, this 7th day of March, 2013.
L SA GODBEY OOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
AO 72A
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