Davis v. Pope et al
Filing
53
ORDER granting 28 Officer Gaff's Motion for Summary Judgment; and granting 29 Sheriff Pope's Motion for Summary Judgment. The Clerk of Court is directed to close the case and enter the appropriate judgment. Signed by Chief Judge Lisa G. Wood on 7/30/2013. (csr)
3Iii the Sniteb Atattg 3tstrttt Court
for the Aouthern Motrtct ot atorsia
Mamma Dtbtton
KAYLA DAVIS, as Next of Kin of Tina Davis, *
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Deceased; and KAYLA DAVIS, as
*
Administrator of the Estate of Tina Davis,
*
Plaintiff,
*
*
VS.
*
*
JERRY POPE, et aL,
CV 511-105
*
*
Defendants.
*
ORDER
Presently before the Court are Motions for Summary Judgment
filed by Defendants Leon Gaff and Jerry Pope. See Dkt. Nos. 28,
29. For the reasons stated below, Defendants' Motions are
GRANTED.
This case arises from the death of Tina Davis ("Davis"), an
inmate at the Coffee County Jail who escaped from custody while
she was being held pre-trial on a drug-related offense. Dkt.
No. 39, Ex. 1.
Every judge encounters cases in which one party's version
of the facts seems unlikely or difficult to imagine. This case
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presents the rare situation in which most of the facts-contested
or otherwise-are astounding. The Court is left with the
distinct impression that, if Davis were alive today, she would
have a great deal to say regarding her escape. Unfortunately,
Davis is unable to share her story, and much of the evidence in
the record favorable to Plaintiff is incapable of being
presented in an admissible form at trial. Those still alive
reveal the following unusual story:
While incarcerated, Davis requested that she be taken to
the probate court and a local bank to sign papers for a family
matter. Dkt. No. 39, Ex. 1. Jail officials granted this
request and Defendant Leon Gaff, a jail transport officer for
the Coffee County Sheriff's Department, was charged with
transporting Davis to complete her errands on October 9, 2009.
Dkt. No. 39, Ex. 1.
According to Officer Gaff, upon leaving the bank on October
9, 2009, Davis asked Officer Gaff to take her to her home in
Broxton, Georgia so she could feed her dogs. Dkt. No. 39, Ex.
1. Prior to her incarceration, Davis lived in the house with
Danny Moore, her boyfriend. Officer Gaff testified that he
granted Davis's request and transported her there. Dkt. No. 39,
Ex. 1.
Officer Gaff's version of what occurred at the house is
bizarre but uncontroverted. According to Officer Gaff, he
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removed Davis's leg irons so that she could walk up the stairs
into the house. Dkt. No. 39, Ex. 1. Inside the house, Davis
fed the two dogs and then entered the bathroom to clean up.
Dkt. No. 28, Ex. 3, ¶I 7-9. Davis asked if she could use
Officer Gaff's cell phone so she could call her mother regarding
the papers she had just signed, and Officer Gaff complied. Dkt.
No. 28, Ex. 3, ¶ 9. At some point thereafter, Davis allegedly
exited the restroom wearing a pair of men's boxer shorts and a
t-shirt, carrying her prison uniform in her hands. Dkt. No. 28,
Ex. 3, ¶ 11. Officer Gaff claims that Davis requested
permission to take a bath, which Officer Gaff denied, at which
point Davis returned Officer Gaff's cell phone. Dkt. No. 28,
Ex. 3, ¶I 11-13. Davis then supposedly went to put up the dog
food but suddenly ran out of the house barefoot clad only in
men's underwear and a T-shirt, entered her Isuzu Rodeo parked
outside, and drove off. Dkt. No. 28, Ex. 3, ¶ 14-15.
Both sides agree that, while at the house, Officer Gaff
allowed Davis to use his cell phone and that Davis used the
phone to make a call to Moore, her boyfriend. Dkt. 39, Ex. 1.
Moore testified that during this conversation, Davis sounded
"panicky" and "stressed out." Dkt. No. 48, 11:21-22. Moore
testified that Davis told him she was at their house because:
she had been taken to the bank to release the money
for [Davis's] niece and that the officer that brought
her there was going to tell everybody he brought her
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there so she could see her dogs but in reality the
perverted old bastard just wanted some puy.
Dkt. No. 48, 12:1-10. Officer Gaff testified that he discovered
Davis had lied and had not called her mother, because, after
Davis's escape he redialed the number and reached Moore. Dkt.
No. 28, Ex. B, 20-25.
Officer Gaff then pursued Davis in his police patrol car.
Dkt. No. 39, Ex. 1. During the pursuit, Officer Gaff claims he
called Coffee County 911 to report the escape, but no one
responded. Dkt. No. 39, Ex. 1. Officer Gaff testified that he
also called the Broxton County Police Department because Broxton
was where she appeared to be headed. Dkt. No. 39, Ex. 1.
Although the Isuzu Rodeo was found later that same day
parked on a road adjacent to a cotton field in Coffee County,
neither Officer Gaff nor the other deputies at the Coffee County
Sheriff's Department were able to locate Davis. Dkt. No. 39,
Ex. 1. Officer Gaff claims that he was instructed by a superior
to conclude his involvement in the search for Davis prior to the
discovery of her vehicle in the cotton field. Dkt. No. 28, Ex.
3, ¶ 23. Twenty days later, Davis's dead body was found in the
same cotton field near where her car was found. Dkt. No. 39,
Ex. 1. The circumstances involving the discovery of Davis's
corpse are not contained in the record.
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The Georgia Bureau of Investigation (GBI) Division of
Forensic Sciences conducted an examination of Davis's body. See
Dkt. No. 28, Ex. D. "Upon receipt of the body at autopsy, the
shirt [was] pushed above the level of the breasts, and the
shorts (were] somewhat askew, with the waistband pulled slightly
downward on the hips." Dkt. No. 28, Ex. D. Decay had worked
its effects on the body such that the eyes, tongue, and other
body parts were missing or decayed. "In light of
decomposition," the GBI report found no discernible trauma.
Dkt. No. 28, Ex. D. The report concluded that Davis's cause of
death and manner of death were "best classified as
undetermined." Dkt. No. 28, Ex. D.
Defendant Sheriff Jerry Pope and the Coffee County
Sheriff's Department filed a motion to dismiss in response to
Plaintiff's Complaint. See Dkt. No. 9. This Court granted in
part and denied in part that Motion to Dismiss. See Dkt. No.
20. All claims against the Coffee County Sheriff's Department
and all claims against Sheriff Pope in his official capacity
were dismissed. Dkt. No. 20. However, claims against Sheriff
Pope in his individual capacity and against Officer Gaff
remained.
Both remaining defendants have now moved for summary
judgment. See Dkt. Nos. 28, 29. The Court conducted a hearing
on the motions, and each is fully briefed. In opposition to
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summary judgment, Plaintiff submitted two affidavits from former
inmates-one from Karol Inman and another from Sabrina Laster-and
an affidavit signed by Moore, the former boyfriend. See Dkt.
No. 39, Exs. 3-5. After a motions hearing, Defendants' counsel
deposed Inman and Moore and submitted the transcripts of those
depositions to the Court. See Dkt. Nos. 48, 50. During the
depositions, Inman and Moore expressly disavowed most of the
statements contained in their affidavits. See Dkt. Nos. 48, 50.
The affidavit signed by Inman stated that she had personal
knowledge that Officer Gaff would give women smoking privileges
for showing their breasts, that the day prior to her
disappearance Davis had shown Officer Gaff her breasts in order
to smoke, and that detention officials knew that Officer Gaff
did such things but did not reprimand him. See Dkt. No. 39, Ex.
3. However, when deposed, Inman expressly denied the truth of
the statements. Inman disavowed personal knowledge of Officer
Gaff giving female inmates favors in exchange for viewing their
breasts. Dkt. No. 50, 9:11-25. She stated that Davis had told
her Officer Gaff did such things when they were in "lockdown,"
but that had never happened to her. Dkt. No. 50, 9:16-19. When
asked about the statement in her affidavit that "Detention
officials and the women inmates knew Officer Gaff would do
favors for women inmates if they showed him their breasts,"
Inman stated she had no knowledge of that and that was "nothing
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[she] wrote or nothing that [she] said." Dkt. No. 50, 13:22-24.
She did testify that Davis told her that Officer Gaff would do
favors for inmates who showed him their breasts. Dkt. No. 50,
9: 16-20.
Inman admitted her signature appeared on the affidavit, but
stated that she "really didn't even read [the affidavit]" prior
to signing. Dkt. No. 50, 7:12-14. Inman testified that the
written statement that she gave to the investigator was "totally
different than [the affidavit]." Dkt. No. 50, 7:20-21. When
she signed the affidavit, Inman stated "she just assumed" it
would be the same as her written statement, although "[s]he
shouldn't have." Dkt. No. 50, 8:9-11.
Likewise, Danny Moore, Davis's boyfriend and housemate,
expressly denied most of the statements contained in his
affidavit. Moore stated that he did read the affidavit prior to
signing it but "[n]ot very well." Dkt. No. 48, 7:6-7.
The affidavit stated that Davis had told Moore that
"Officer Gaff was a sexual pervert" who was sexually abusing
Davis and "everyone knew it." Dkt. No. 39, Ex. 5, ¶ 5. When
asked about that statement, Moore testified that sentence was
"inaccurate" and that he could not "remember that conversation."
Dkt. No. 48, 9:13-14. The affidavit contained a statement that,
around the time Davis was taken to the dentist, Moore spoke to
Davis who supposedly sounded "really stressed and stated that
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she was going to try to escape because of the sexual perversion
and abuse of Officer Gaff" and that Davis "sounded as if she was
someone on their [sic] deathbed." Dkt. No. 39, Ex. 5, ¶ 6.
When asked about that paragraph, Moore testified "I really don't
believe I have ever wrote that. That is not accurate." Dkt.
No. 48, 10:17-23. Moore testified that Davis conveyed to him
that she wanted to escape, although Davis never stated a
specific reason. Dkt. No. 48, 11:1-9.
No deposition of Laster, the other inmate who signed an
affidavit, has been submitted. In light of the fact that Moore
and Inman expressly denied most of the key statements from their
affidavits, the Court is skeptical of whether the statements
contained in Laster's affidavit accurately reflect Laster's
knowledge. However, the Court's role at this stage is not to
weigh the evidence or speculate about credibility. Accordingly,
the Court will view the evidence in the light most favorable to
Plaintiff and assume the statements in Laster's affidavit are
true and accurate.
Laster's affidavit states "[O]fficer Gaff would give women
smoking privileges or other favors if the female inmates showed
him their breasts or other body parts." Dkt. Nos. 39, Ex. 4.
Further, Laster describes an incident that occurred "shortly
after" Davis's death, where Officer Gaff transported Laster and
another inmate, Kimber Griffin, "to a secluded place near some
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rail road tracks and made [the women] show him [their] breasts."
Dkt. No. 39, Ex. 4, 6. The affidavit then states that Officer
Gaff fondled Laster's breasts and told the women "that if [they]
told anyone, [they] would be in big trouble." Dkt. No. 39, Ex.
4, ¶ 6.
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).
A party is not required to "produce evidence in a form that
would be admissible at trial in order to avoid summary
judgment," but "[a] party may object that the material cited to
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support or dispute a fact cannot be presented in a form that
would be admissible in evidence." Fed. R. Civ. Pro. 56(c) (2);
Celotex, 477 U.S. at 324. A non-moving party cannot defeat
summary judgment based on evidence that could not be reduced to
an admissible form at trial. Pritchard v. So. Co. Srvs., 92
F.3d 1130, 1135 (11th Cir. 1996). Evidence that could not be
admitted at trial in any form should not be considered in ruling
on a motion for summary judgment. Hodge v. Sec'y, Fla. Dep't of
Corr., 464 F. App'x 810, 812 (11th Cir. 2012).
DISCUSSION
I. Claims Against Officer Gaff
A. Federal Claims
Although the circumstances surrounding the escape of Davis
and the discovery of her body would cause some to speculate that
she was murdered, there is no evidence that Officer Gaff killed
Davis. As discussed below, inappropriate quid pro quo offers
are the only allegation regarding sexual misconduct between
Davis and Officer Gaff that Plaintiff has substantiated with
admissible evidence. The Court concludes that summary judgment
in favor of Officer Gaff on the § 1983 claims is appropriate in
light of the evidence.
Under certain circumstances, sexual misconduct on the part
of a prison or jail official can violate the Constitution. See
Boxer X v. Harris, 437 F.3d 1107, 1111 (11th Cir. 2006) ("[W]e
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Join other circuits recognizing that severe or repetitive sexual
abuse of a prisoner by a prison official can violate the Eighth
Amendment."); Reid v. Secretary, Fl. Dep't of Corr., 486 F.
App'x 848, 852 (11th Cir. 2012); Jones v. Wellham, 104 F.3d 620,
628 (4th Cir. 1997). A pretrial detainee claiming that a jail
official violated her Fourteenth Amendment rights must satisfy
two requirements.' First, the plaintiff must show that the
defendant's conduct is objectively serious or caused an
objectively serious injury to plaintiff. Farmer v. Brennan, 511
U.S. 825, 834 (1994). Second, the plaintiff must show that the
jail official acted with a sufficiently culpable state of mind,
or with deliberate indifference to or reckless disregard for the
plaintiff's constitutional rights, health, or safety. Id. at
834.
1. Retracted Statements from Inman and Moore's Affidavits
As noted above, both Inman and Moore have given textbook
examples of "sham affidavits." They have disavowed explicitly
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The source of Davis's constitutional rights is the Fourteenth
Amendment, rather than the Eighth Amendment because Davis was not a
convicted prisoner. McDowell v. Brown, 392 F.3d 1283, 1289 n.8 (11th
Cir. 2004); see Dkt. No. 39, Ex. 1. Rather, she was incarcerated in
jail awaiting trial. The Fourteenth Amendment is the applicable
source of rights for pretrial detainees. McDowell, 392 F.3d at 1289
n.8. The distinction between the Eighth and Fourteenth Amendments is
largely academic however because, in cases such as this, the same
standards govern whether the source of rights is the Eighth or the
Fourteenth Amendment. Hamm v. Dekaib Cnty., 774 F.2d 1567, 1574
(11th Cir. 1985)
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and under oath major sections of their affidavits which were
submitted to defeat summary judgment. Those affidavits
contained multiple references to sexual interactions between
Officer Gaff and Davis; however, almost all of those statements
have been retracted. See Dkt. No. 39, Ex. 3, ¶ 7; Dkt. No. 39,
Ex. 5, ¶91 5, 6, 7, 9. Inman testified that she had no personal
knowledge as to (1) whether Officer Gaff would give women
smoking privileges for showing their breasts, (2) whether, the
day before Davis disappeared, Officer Gaff pulled the transport
vehicle over to a secluded place to allow Davis to smoke after
exposing her breasts, and (3) whether detention officials knew
Officer Gaff would grant inappropriate favors and failed to
reprimand him. Dkt. No. 50, 9:11-25. 10:1-25, 13:16-25. Inman
testified that she had only heard Davis state that Officer Gaff
did such things. Dkt. No. 50, 9:11-25. 10:1-25.
Moore denied ever making the following statements: (1) that
"[Davis] told [him] that Officer Gaff was a sexual pervert, was
abusing her sexually, and everybody knew it," (2) that in a
conversation prior to her escape, Davis "was really stressed and
stated she was going to escape
because of the sexual perversion
and abuse of Officer Gaff," and that she sounded "as if she was
someone on their [sic] death bed," and (3) that during his last
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Moore testified that Davis did tell him she was planning on escaping.
However, she did not mention Officer Gaff as the reason. Dkt. No.
48, 10:4-7.
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conversation with Davis, it was clear that Davis "would do
anything to get away from [Officer Gaff's] sexual manipulation
of her."
Dkt. No. 48, 9:8-14, 10:1-23, 15:7-22.
2. Hearsay Issues Concerning Inman and Moore's Remaining
Statements
Little remains unretracted. Moore and Inman did testify
that Davis made statements to them concerning sexual contact
between her and Officer Gaff. Specifically, Moore testified
that, when he spoke with Davis the day of her escape, she told
him "the perverted old bastard just wanted some pu"y." Dkt.
No. 48, 12:4-6. Inman testified that Davis had told her that
Officer Gaff gave her smoking privileges for flashing her
breasts. Dkt. No. 50, 9:11-19, 11:4-7. However, those out-ofcourt statements admitted for the truth of the matters asserted
present hearsay issues.
"The general rule is that inadmissible hearsay cannot be
considered on a motion for summary judgment." Jones v. UPS
Ground Freight, 683 F.3d 1283, 1293 (11th Cir. 2012) (quoting
Macuba v. Deboer, 193 F.3d 1316, 1322 (11th Cir. 1999)).
"Nevertheless, 'a district court may consider a hearsay
statement if the statement could be reduced to admissible
evidence at trial or reduced to admissible form." Id. (quoting
Macuba, 193 F.3d at 1323).
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At the Motions Hearing, prior to Moore and Inman's
retraction of most of the statements in the affidavits,
Plaintiff suggested the statement that Davis made to Moore
regarding Officer Gaff's motives for taking her to the house
could be admissible as a dying declaration.
A dying declaration, also known as a "statement under the
belief of imminent death," is an exception to the hearsay rules.
See Fed. R. Evid. 804 (b) (2). To qualify, a statement must be
(1) made by the declarant while believing the declarant's death
to be imminent, and (2) made about the cause or circumstances of
death. Fed. R. Evid. 804 (b) (2). Davis's statement to Moore
cannot satisfy these requirements.
For death to be imminent, "the declarant must have spoken
without hope of recovery and in the shadow of impending death."
Shepard v. United States, 290 U.S. 96, 99 (1933) . General fears
for one's life are not sufficient. Id.
"[A]dmission of
utterances of a dying person should be received with great
caution." United States v. Mobley, 421 F.2d 345, 357 (5th Cir.
1970) . "There must be a settled hopeless expectation that death
is near at hand, and what is said must have been spoken in the
hush of its impending presence." Shepard, 290 U.S. at 99.
Although Moore testified that when he spoke to Davis "she
was very scared" and "was crying," more is required for a
statement to be made "in the shadow of imminent death." Dkt.
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No. 48, 18:22-25. Even apart from the imminence requirement,
the statement could not qualify as a dying declaration because
it does not concern the manner in which Davis died. Rather it
describes the nature of Davis's interaction with Officer Gaff.
Accordingly, Davis's statement to Moore cannot be reduced to
admissible form, and therefore should not be considered in
deciding the summary judgment motion.
As for Davis's statement to Inman that Officer Gaff would
grant her favors in exchange for exposing herself, Plaintiff has
not advanced any argument regarding that statement's
admissibility. It is not apparent to the Court how that
statement could be admissible. Thus, the Court will not
consider that statement in evaluating the pending motion.
3. Laster's Unretracted Affidavit
What remains is Laster's unretracted statements in her
affidavit that (1) Officer Gaff would give women smoking
privileges or other favors for exposing themselves and (2)
Laster's description of a instance that occurred while she and
another inmate, Kimber Griffin, were being transported by
Officer Gaff. Laster does not mention Davis in particular in
her affidavit. As discussed below, the facts in Laster's
affidavit are not hearsay but, nevertheless, do not defeat
summary judgment.
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Laster described in her affidavit a disturbing event
involving Laster, Griffin, and Officer Gaff. See Dkt. No. 39,
Ex. 4 1 ¶ 6. Laster stated that, shortly after Davis's death,
Officer Gaff took Laster and Griffin to a secluded place and
forced them to expose their breasts, fondled Laster's breasts,
and threatened the women if they told anyone. See Dkt. No. 39,
Ex. 4, ¶ 6. This statement, unlike anything Moore or Inman
mentioned, concerns forced sexual touching by Officer Gaff,
rather than inappropriate offers in exchange for favors. The
incident Laster describes lacks any kind of consent.
Unfortunately for Plaintiff, the rules of evidence would
bar the admission of Laster's testimony to prove that, on the
day of Davis's escape, Officer Gaff acted in a similar manner.
Generally, "[elvidence of a person's character or character
trait is not admissible to prove that on a particular occasion
the person acted in accordance with the character or trait."
Fed. R. Evid. 404 (a) (1) . For example, in a car accident case, a
plaintiff could not admit evidence that the defendant ran a stop
sign a week before the accident to show that the defendant ran
the stop sign the day of the accident.
Although not urged by Plaintiff, at first blush it might
appear that Federal Rule of Evidence 415 would permit admission
of this statement. It will not. Under Federal Rule of Evidence
415, "in a civil case involving a claim for relief based on a
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party's alleged sexual assault or child molestation, the court
may admit evidence that the party committed any other sexual
assaults or child molestation." Fed. R. Evid. 415(a). "Sexual
assault," for purposes of Rule 415, is defined as:
a crime under federal law or state law
involving:
(1) any conduct prohibited by 18 U.S.C. chapter 109A;
(2) contact, without consent, between any part of the
defendant's body—or an object—and another person's
genitals or anus;
(3) contact, without consent, between the defendant's
genitals or anus and any part of another person's
body;
(4) deriving sexual pleasure or gratification from
inflicting death, bodily injury, or physical pain on
another person; or
(5) an attempt or conspiracy to engage in conduct
described in subparagraphs (1)-(4).
Fed. R. Evid. 413(d). Federal Rule 415 would not allow evidence
of the forced fondling of Laster's breasts at trial to prove
that Officer Gaff acted in the same way with Davis because the
incident Laster describes does not satisfy any of the five
categories of conduct listed in 413 (d) . Specifically, 413 (d) (2)
is not satisfied because Officer Gaff touched Laster's breasts,
which are not considered genitals pursuant to 413(d). See
Seeley v. Chase, 443 F.3d 1290, 1297 (10th Cir. 2006) (finding
that an incident where police officer rubbed woman's breasts did
not qualify under 413(d) (2)).
In sum, the only evidence of sexual misconduct by Officer
Gaff capable of being admitted at trial is Laster's statement
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that "Officer
Gaff
would give women smoking privileges or other
favors if the female inmates showed him their breasts or other
body parts." Dkt. No. 39, Ex. 4, ¶ 6. That statement is not
specific to Davis. Even if a jury could infer that Officer Gaff
entered into such an arrangement with Davis the day of her
escape, no constitutional violation could be found.
While deplorable, Officer Gaff's inappropriate quid pro quo
offers did not violate Davis's constitutional rights. The takeit-or-leave-it nature of the offer meant that Davis did not
incur an objectively serious injury. See Washington v. Harris,
186 F. App'x 865 (11th Cir. 2005) (finding no Eighth Amendment
violation where prison employee would briefly grab inmate's
genitals, kiss inmate, and threaten to perform oral sex on the
inmate); Coleman v. Kicklighter, No. CV 207-037, 2008 WL 1817824
(S.D. Ga. 2008) (briefly touching inmate's genitals through
pants did not violate Eighth Amendment). In considering similar
conduct, the Northern District of Georgia held that a male jail
guard was not liable under the Eighth Amendment for allegedly
offering an inmate cigarettes if she would expose her breasts.
Hammond v. Gordon Cnty., 316 F. Supp. 2d 1262, 1282 (N.D. Ga.
2002)
To the extent that Plaintiff's brief in opposition to
summary judgment suggests that Plaintiff can recover for
violations of jail policy, that assertion is incorrect. Section
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1983 only provides a remedy for violations of federal statutes
or the federal Constitution, not of internal policies. A
violation of a jail's rules, regulations, and/or policies,
without more, does not give rise to a federal constitutional
violation. Robinson v. Conner, 2:12-CV-397-TMH, 2012 WL 2358955
(M.D. Ala. 2012) (citing Hernandez v. Estelle, 788 F.2d 1154,
1158 (5th Cir. 1986)); see also Doe v. School Ed. of Broward
Cnty., Fla., 604 F.3d 1248, 1265 (11th Cir. 2010) ("[A] § 1983
plaintiff must allege a specific federal right violated by the
defendant.")
In sum, the scant potentially admissible evidence that
Plaintiff has presented to support her claim would not permit a
reasonable jury to find Officer Gaff violated Davis's Fourteenth
Amendment rights. Granting privileges or favors for exposing
body parts does not constitute an objectively serious injury.
B. State Law Claims
Plaintiff has asserted numerous state law claims against
Officer Gaff, such as assault, battery, sexual misconduct,
sexual battery, custodial sexual misconduct, false imprisonment,
and kidnapping. Plaintiff has not come forward with evidence
that could be admissible at trial that Officer Gaff touched
Davis against her will, transported her against her will, or
confined her illegally. Accordingly, summary judgment is
appropriate on those tort claims.
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Plaintiff also asserted a state law wrongful death claim.
Defendants contend that Plaintiff's state law claims against
Officer Gaff in his individual capacity are barred by Georgia's
doctrine of official immunity and that there is no evidence to
support the wrongful death claim. See Dkt. Nos. 28, 43.
Under Georgia law, official immunity "offers public
officers and employees limited protection from suit in their
personal capacity." Grarnmens v. Dollar, 697 S.E.2d 775, 777
(Ga. 2010) (citing Cameron v. Lang, 549 S.E.2d 341 (Ga. 2001)).
"[L]aw enforcement officers may be personally liable for
negligent actions taken in the performance of ministerial
functions, but are immune from personal liability for
discretionary acts taken within the scope of their official
authority and performed without willfulness, malice, or
corruption." Gish v. Thomas, 691 S.E.2d 900, 904 (Ga. Ct. App.
2010). Thus, officers receive more protection for discretionary
acts than ministerial ones.
Plaintiff argues that Officer Gaff disregarded a number of
transportation policies while transporting Davis and that those
acts were ministerial. However, without any evidence that the
breach of those duties, even if ministerial, caused Davis's
death, Plaintiff cannot recover for wrongful death.
In Gish v. Thomas, the decedent committed suicide in a
patrol car by accessing the transportation officer's gun and
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shooting himself. Id. at 902-03. The Gish court noted that it
was "undisputed that at the time of [the decedent's suicide],
the Pike County Sherriff's Office did not have written
departmental policies or procedures governing handcuffing
inmates during transport or the securing of weapons in patrol
cars." Id. at 905. Based on the absence of policies, the Court
of Appeals of Georgia held that the act of transporting a
prisoner is discretionary when an officer has wide discretion in
handling the job and much of the specifics of prisoner transport
are left in the officer's hands. Id. at 905.
Here, Plaintiff has identified several correction center
policies that use mandatory language and seem to impose
nondiscretionary duties on the transporting officer. For
example, the department manual states that "[i]n all cases where
an inmate is being transported to or from the Coffee County
Jail, physical restraints will be used to include handcuffing,
waist/belly chains and leg shackles. Dkt. No. 39, Ex. A
(emphasis added). The manual also provides that "[u]nder no
circumstances will physical restraints be removed during
transportation without the express approval of CCJ command level
staff." Dkt. No. 39, Ex. A (emphasis added)
The manual further states that "[w]henever female inmates
are to be transported by male transport officers, distance and
travel times is [sic] to be estimated and compared to the in-car
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camera and recording system to insure complete and unbroken
recording." Dkt. No. 39, Ex. A (emphasis added). The manual
further provides that "[i]f no in-car camera and recording
system is available, [and] the transport will be longer than the
camera/recorder recording times,
the transport officer will
insure that a second officer is assigned to accompany the
transport and witness all interaction and supervision." Dkt.
No. 39, Ex. A (emphasis added).
Plaintiff argues the disregard of those ministerial duties
created a situation where Davis could easily escape custody and
that Davis would still be alive had she not escaped. However,
more than mere "but-for" causation is necessary to strip Officer
Gaff of official immunity and hold him liable on a wrongful
death claim. See Ga. Const. Art. I, § 2, ¶ IX; Cowart v.
Widener, 697 S.E.2d 779, 784-85 (Ga. 2010); McAuley v. Wills,
303 S.E.2d 358, 260-61 (Ga. 1983). Absent any indication as to
the cause of Davis's death, it is impossible to determine
whether Officer's Gaff's violations of policy proximately caused
her death.
II. Claims Against Sheriff Pope
Pursuant to the Motion to Dismiss Order, all claims against
Sheriff Pope in his official capacity were dismissed. See Dkt.
No. 20. The Fourteenth Amendment claim against Sheriff Pope in
his individual capacity, however, remains pending. See Dkt.
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Nos. 20, 29 Ex. 2. Plaintiff's state-law claim for inadequate
training, hiring, and supervision also remains pending. Dkt.
No. 29, Ex. 2.
A. Section 1983 Claims
Plaintiff attempts to hold Sheriff Pope liable on the basis
of his position as a supervisor. However, without an underlying
constitutional violation, Sheriff Pope cannot be held liable.
See Penley v. Eslinger, 605 F.3d 843, 854-55 (11th Cir. 2010)
("Absent a deprivation of federal rights, [a supervisory
sheriff] cannot be liable in his official capacity under
§ 1983.")
B. State-Law Claim
The state law claims against Sheriff Pope in his individual
capacity should also be dismissed. As discussed above, Georgia
affords public officials immunity from liability for
"discretionary actions taken within the scope of their official
authority, and done without willfulness, malice, or corruption."
Grammens, 697 S.E.2d at 777 (citation omitted). Sheriff Pope's
actions at issue involve discretionary functions. See Harvey v.
Nichols, 581 S.E.2d 272, 276-77 (Ga. Ct. App. 2003) (operation
of jail, supervision of jail employees, and establishment of
policies and procedures at jail are discretionary functions)
For his discretionary acts, Sheriff Pope is shielded from
liability unless he harbored a "deliberate intention to do
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wrong." Merrow v. Hawkins, 467 S.E.2d 336, 337 (Ga. 1996)
Plaintiff has produced no evidence to suggest that Sheriff Pope
harbored a deliberate intention to do wrong. Accordingly,
Sheriff Pope cannot be liable for state law claims in his
individual capacity.
CONCLUSION
Based on the foregoing, Officer Gaff's Motion for Summary
Judgment, Dkt. No. 28, is GRANTED.
Sheriff Pope's Motion for
Summary Judgment, Dkt. No. 29, is also GRANTED.
The Clerk of
Court is directed to close the case and enter the appropriate
judgment.
SO ORDERED,
this 30th day of July, 2013.
SA GODBEY 1OOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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