Simpson et al v. Coffee County, et al

Filing 81

ORDER ADOPTING in part and rejecting in part the 74 Report and Recommendations of the Magistrate Judge. The Court GRANTS Vickers' 58 Motion for Summary Judgment on all of the Plaintiff's claims. Accordingly, Plaintiffs' claims against Defendant Vickers are DISMISSED with prejudice. The Clerk is DIRECTED to enter the appropriate judgment of dismissal, as to Defendant Vickers. Signed by Chief Judge Lisa G. Wood on 8/16/2016. (ca)

3n the Iintteb Statto flitritt Court
for the boutbern Jttrtd Of deorgia
aptro flibiion
HARVEY O.J. SIMPSON, SR.; JAKIMA
SIMPSON; and HARVEY O.J. SIMPSON,
JR.,
Plaintiffs,
V.

COFFEE COUNTY SCHOOL DISTRICT, a
Political Subdivision of the State of Georgia;
and MICHAEL VICKERS, Individually and
as School Resource Officer at Coffee County
High School,

Defendants.

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CIVIL ACTION NO.: 5:13-cv-32

ORDER
Presently before the Court is the Magistrate Judge's Report
and Recommendation dated May 13, 2016. Dkt. no. 74. The
Magistrate Judge recommended that the Court grant summary
judgment to Defendant Michael Vickers ("Vickers") on all of
Plaintiffs' federal law claims and dismiss Plaintiffs' state law
claims against Vickers. Id. Plaintiff has objected to the
Report and Recommendation. Dkt. no. 78. Also before the Court
are Coffee County School District's ("CCSD") Objection, dkt.
no. 75, and Defendant Michael Vickers' Objection in part, dkt.
no. 76. After an independent and de novo review of the entire
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record, the Court OVERRULES IN PART AND SUSTAINS IN PART

Plaintiff's Objections, OVERRULES CCSD's Objections, but
SUSTAINS Defendant Vickers' Objection.

The Magistrate Judge's Report and Recommendation, as
amended herein, is ADOPTED IN PART AND REJECTED IN PART as the

opinion of the Court. For the reasons discussed below, the
Court GRANTS Defendant Vickers' Motion for Summary Judgment,
dkt. no 58, and DISMISSES Plaintiff's claims as to Defendant
Vickers WITH PREJUDICE.
BACKGROUND

On April 12, 2011, while serving in his capacity as a
school resource officer, Defendant Vickers observed Plaintiff
Harvey O.J. Simpson, Jr. ("the son") touch a white female ("the
female") on her breast with a water bottle ("the incident")
Dkt. no. 58-1, p. 1. Greg Tanner, principal of Coffee County
High School, observed the incident through the school's video
surveillance system, concluded that the son's contact with the
female was sexual in nature, and directed Defendant Vickers to
investigate the incident. Id. at p. 2.
The following day, Plaintiffs met with school officials to
discuss the incident and to view the video footage. Id. at p.
3. However, Defendant Vickers could not find the video upon
Plaintiffs' request to view it. Id. Though Defendant Vickers
asked Plaintiffs to wait outside his office while he searched
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for the video, Plaintiffs refused to leave the office. Id.
Eventually, according to Plaintiffs, Defendant Vickers then
pointed his taser at Plaintiff Harvey O.J. Simpson, Sr.'s ("the
father") head and chest and threatened to handcuff Plaintiffs
and place them in jail. Dkt. no. 31, p. 5.
As Plaintiffs left the office, Jakima Simpson ("the
mother") continued to argue with Defendant Vickers and attempted
to push the door back towards Defendant to prevent it from
closing. Dkt. no. 58-1, p. 4. Plaintiffs allege that Vickers
closed the door on the mother, and she stumbled forward when
Defendant Vickers closed the door. Dkt. no. 31,

p. 5.

Plaintiffs then stood in the hallway where they spoke with
Defendant Vickers shortly thereafter. Dkt. no. 58-1,

p. 5.

When Plaintiffs began to walk away, Defendant Vickers stepped in
front of them, and the conversation continued for approximately
ten seconds. Id. Plaintiffs then walked around Defendant
Vickers and exited the building. Id.
Plaintiff alleges that Defendants violated their rights
arising under the Fourteenth Amendment and state law.
Specifically, the son claims that Defendant Vickers
discriminated against him on the basis of race when he launched
an investigation concerning the son's contact with the white
female. Dkt. no. 31, p. 4. Plaintiffs also appear to allege
that this investigation and the son's resulting three-day
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suspension violated his equal protection rights under the
Fourteenth Amendment. Plaintiffs further claim that Defendant
Vickers violated their procedural due process rights by failing
to produce video footage of the incident when requested. Id. at
pp. 6-7. The mother asserts a claim of excessive force in
violation of her substantive due process rights under the
Fourteenth Amendment concerning her contact with the office
door. Id. at p. 5. Plaintiffs also assert a state law claim of
false imprisonment as a result of their encounter with Defendant
Vickers in the school hallway following their confrontation in
the office. Id. at p. 6. Finally, in connection with Defendant
Vickers' decision to point a taser at him, the father asserts a
state law claim of assault. Id. at p. S.
Defendant Vickers filed a Motion for Summary Judgment on
October 17, 2014, to which Plaintiffs failed to file a response.
Dkt. no. 58. The Magistrate Judge recommended that the Court
decline to exercise jurisdiction over Plaintiffs' state law
claims, grant Defendant Vickers' unopposed Motion for Summary
Judgment as to the federal claims, and dismiss all of
Plaintiffs' claims against Defendant Vickers. Dkt. no. 74,
pp. 15, 17. Plaintiffs filed Objections to the Magistrate
Judge's Report and Recommendation, contending,

inter alia, that

the Magistrate Judge failed to address their state law claims of
negligence and battery. Id. at p. 4. Defendant CCSD also filed
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an "Objection" to the Magistrate Judge's Report and
Recommendation, in which it seeks an extension of thirty days to
file a Motion for summary Judgment. Dkt. no.

75, p. 4.

Finally, Defendant Vickers filed an Objection in part,
contending that the Court should exercise jurisdiction over
Plaintiffs' state law claims and grant his Motion for Summary
Judgment as to Plaintiffs' state law, claims. Dkt. no.

76, P. 3.

DISCUSSION
I.

Plaintiffs' Objections

Plaintiffs object to the Magistrate Judge's recommendation
that the Court dismiss all of Plaintiffs' federal claims.
However, Plaintiffs failed to raise these arguments in response
to the Motion for Summary Judgment. This Court is under no
obligation to consider novel evidence and legal arguments raised
for the first time in an objection to a report and
recommendation. Williams v. McNeil, 557 F.3d 1287, 1292 (11th
Cir.2009)

("[A] district court has the discretion to decline to

consider a party's argument when the argument is not first
presented to the magistrate judge."). Plaintiffs' objections
are due to be dismissed on this basis alone.
Additionally, as the Magistrate Judge recounted, the Court
notified Plaintiffs of their obligation to respond to the Motion
for Summary Judgment and provided them numerous opportunities to
do so. Dkt. No. pp. 1-2.
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Plaintiffs have still not

5

contradicted Defendant Vickers' statement of undisputed material
facts. See Local Rule 56.1 (a party opposing summary judgment
must directly respond to a moving party's statement of
undisputed facts, and if the opposing party does not respond,
the facts stated by the moving party will be deemed admitted).
Furthermore, the Magistrate Judge already addressed nearly all
of the issues raised by Plaintiffs' Objections through the
Report and Recommendation. The Court concurs with that
analysis.
Accordingly, the Court OVERRULES Plaintiffs' Objections as
to his federal claims. The Court ADOPTS the Magistrate Judge's
recommendation that the Court grant Defendant Vickers' summary
judgment on Plaintiffs' federal claims.
However, the Court will specifically assess Plaintiffs'
Objection that the Magistrate Judge failed to address their
state law claims of negligence and battery. Plaintiffs state
that they "believe [former counsel] plead[ed] claims of
negligence and battery." Dkt. no. 78, p. 4.
Federal Rule of Civil Procedure 8(a) (2) states that a
Complaint must contain a "short and plain statement of the claim
showing that the pleader is entitled to relief." The Supreme
Court has clarified that while the pleading standard of Rule 8
"does not require 'detailed factual allegations,'" it does
demand "more than an un-adorned, the-defendant-unlawfullyAO 72A
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harmed-me accusation." Ashcroft v. Igbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007)) . Ultimately, the statement must "give the defendant
fair notice of what the . . . claim is and the grounds upon
which it rests." Erickson v. Pardus, 551 U.S. 89, 93 (2007)
Nevertheless, "each separate claim is required to be presented
in a separate numbered paragraph, with each paragraph 'limited
as far as practicable to a single set of circumstances.'"
Hickman v. Hickman, 563 F. App'x 742, 743-44 (11th Cir. 2014)
(quoting Fed. R. Civ. P. 10(b)); see also, Anderson v. Dist. Bd.
of Trs. of Cent. Fla. Cmty. Coil., 77 F.3d 364, 366 (11th Cir.
1996) (stating that multiple claims should be presented
separately in adherence to Federal Rule of Civil Procedure 10(b)
"and with such clarity and precision that the defendant will be
able to discern what the plaintiff is claiming and to frame a
responsive pleading").
Plaintiffs argue that the following language, contained in
Paragraph 36 of their Second Amended Complaint, satisfies the
standard set forth above: "Plaintiff Mrs. Simpson shows that she
has not recovered, and will never recover from the Injury
Intentionally and Negligently inflected upon her [sic]. . .
Dkt. no. 78, p. 4 (citing dkt. no. 36). This statement does not
set forth Plaintiffs' alleged state law claims of negligence and
battery separately or with any clarity and precision. First, it
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is unclear whether Plaintiffs are asserting a claim of
negligence, battery, or both through this statement as they
allege that Defendant Vickers intentionally and negligently
injured Plaintiff. Second, assuming Plaintiffs intended to
assert both a claim of negligence and an intentional tort of
battery through this sentence, they failed to set forth each
claim in separate paragraphs. Finally, as this statement is
couched between a string of imprecise allegations within
Plaintiffs' Amended Complaint, this particular statement did not
give Defendant Vickers fair notice that Plaintiffs intended to
set forth two additional claims.'
Nonetheless, the Complaint is not completely bereft of any
allegations that could have placed Defendant Vickers on notice
of negligence and battery claims. Plaintiffs allege that as
they attempted to leave Vickers' office, Vickers "slammed and
continued to close the door on Mrs. Simpson, [the mother]."
Dkt. no. 31, p. 5. Thus, in an abundance of caution, the Court
will presume that Plaintiffs stated a claim for negligence and
battery through their Amended Complaint. The Court will include
those claims in its below discussion of Plaintiffs' state law
1

Defendant Vickers' Motion for Summary Judgment evidences the
uncertainty regarding which claims Plaintiff actually intended to
assert. Defendant Vickers notes that "it is not clear whether the
plaintiffs intend to assert a claim for assault, or any other claim,
that is based on state law . . . . In the event the plaintiffs later
claim that they are asserting other claims based on state law, Deputy
Vickers reserves the right to address any such claims in a reply
brief." Dkt. no. 58-2, p. 16 n.13.
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claims. Thus, the Court SUSTAINS this portion of Plaintiffs'
Objections.
II.

Defendant CCSD's Objection

Defendant CCSD has also filed an Objection. In that
Objection, CCSD states that it "does not object to the
Magistrate Judge's Report and Recommendation as it applies to
co-Defendant Vickers' Summary Judgment motion; rather, CCSD's
objection is lodged for the purpose of having the District Court
Judge grant CCSD a period of thirty days .

. to file its

Summary Judgment Motion on all claims lodged by Plaintiff."
Dkt. No. 75, p. 4.
CCSD's Objection is not responsive to the Magistrate
Judge's Report and Recommendation. The Magistrate Judge did not
address whether or when CCSD would be allowed to file a Motion
for Summary Judgment. Additionally, an Objection to the
Magistrate Judge's Report and Recommendation is not the proper
vehicle for CCSD to request an extension of time to file a
motion for summary judgment. Rather, it should file a Motion
advancing that request. Accordingly, the Court OVERRULES CCSD's
Objection.
III. Defendant Vickers' Objection and Analysis of Plaintiff's

State Law Claims
After recommending that the Court dismiss Plaintiffs'
federal claims on the merits, the Magistrate Judge recommended

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that the Court decline to exercise jurisdiction over Plaintiffs'
state law claims. Defendant Vickers objects to only this

portion of the Report and Recommendation. Dkt. no. 76.
Defendant Vickers requests that the Court retain jurisdiction
over Plaintiffs' state law claims of false imprisonment and
assault and that the Court grant him summary judgment on those
claims. After careful consideration and for the reasons set
forth below, the Court finds it prudent to exercise jurisdiction
over Plaintiffs' state claims. Accordingly, the Court SUSTAINS
Defendant Vickers' Objection, and REJECTS IN PART the Magistrate
Judge's Report and Recommendation. Moreover, as discussed
below, the Court GRANTS Defendant Vickers' Motion for Summary
Judgment as to Plaintiffs' state law claims and DISMISSES those
claims against Vickers with prejudice.
A. Whether to Exercise Supplemental Jurisdiction over
Plaintiffs' State Law Claims
28 U.S.C. § 1367(a) provides a federal court with

supplemental jurisdiction over claims that are so related to a
plaintiff's federal claims that they form part of the same case
or controversy. "The Constitutional 'case or controversy'
standard confers supplemental jurisdiction over all state law
claims which arise out of a common nucleus of operative fact."
Lucero v. Trosch, 121 F.3d 591, 597 (11th Cir. 1997) (citing
United Mine Workers v. Gibbs, 383 U.S. 715, 724-25 (1966)). A

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District Court can decline to exercise supplemental jurisdiction
over a pendent state claim under 28 U.S.C. § 1367(c) if:
(1) the claim raises a novel or complex issue of state
law;
(2) the claim substantially predominates over the
claim or claims over which the district court has
original jurisdiction;
(3) the district court has dismissed all claims over
which it has original jurisdiction, or
(4) in exceptional circumstances, there are other
compelling reasons for declining jurisdiction.
"In determining whether [dismissal] is appropriate under any of
these four categories the Court must make a case specific
analysis and consider factors including judicial economy,
convenience, fairness to litigants, and comity. Gibbs, 383 U.S.
at 726.
In a proceeding before a district court upon a federal
cause of action, the court has substantial discretion in
determining whether to exercise supplemental jurisdiction over
pendent state-law claims. 28 U.S.C. § 1367; Raney v. Allstate
Ins. Co., 370 F.3d 1086, 1088-89 (11th Cir. 2004) (per curiam).
This discretion survives even where all federal claims are
dismissed. Raney, 370 F.3d at 1088-89; see also Palmer v. Hosp.
Auth., 22 F.3d 1559, 1567-68 (11th Cir. 1994). Ordinarily, when
all federal claims are eliminated before trial, the district
court should decline to exercise jurisdiction over the remaining
state-law claims. Carnegie-Mellon Univ. v. Cohill, 484 U.S.

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343, 350 n.7, (1988). Nevertheless, the decision ultimately
rests within the district court's discretion, to be guided by
considerations of judicial economy, fairness, comity, and
convenience. Id.; see also Casey v. City of Miami Beach, 805 F.
Supp. 2d 1361, 1362 (S.D. Fla. 2011) (declining to remand where
factors favored retention of jurisdiction though federal claims
were dismissed)
As Defendant Vickers notes in his Objection, this Court
frequently adjudicates state law claims of false imprisonment
and assault, and neither of those claims raise novel or complex
issues. Furthermore, neither of these claims substantially
predominate over Plaintiffs' federal claims. Moreover, not all
federal claims have been dismissed as Plaintiffs' federal claims
against Defendant CCSD remain before the Court. Finally, as the
parties have litigated this action in this Court for an extended
period, the convenience and fairness to the litigants of
addressing the claims in this forum outweigh any concerns of
comity. Therefore, the Court exercises its discretion to
maintain jurisdiction over Plaintiffs' state law claims of false
imprisonment and assault against Defendant Vickers.
B. Defendant Vickers' Motion for Summary Judgment as to the
State Law Claims

Having retained jurisdiction over Plaintiffs' state law
claims, the Court must now assess the merits of Defendant

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Vickers' Motion for Summary Judgment on those claims.
Plaintiffs allege state law claims of assault against Defendant
Vickers concerning his decision to point a taser at the father's
head. Plaintiffs also allege claims of false imprisonment
regarding Defendant Vickers' ten-second conversation with them
in the school hallway. Additionally, as noted above, the Court
will presume that Plaintiffs have alleged claims of negligence
and battery for Defendant Vickers closing the door on Mrs.
Simpson, the mother.
Defendant Vickers asserts that he is entitled to official
immunity as to all of Plaintiffs' state law claims. Under
Georgia law, the "doctrine of official immunity, also known as
qualified immunity, offers public officers and employees limited
protection from suit in their personal capacity." Cameron v.
Lang, 549 S.E.2d 341, 344 (Ga. 2001). Official or qualified
immunity shields a Georgia public employee from liability except
when he performs ministerial acts negligently or performs
ministerial or discretionary acts with malice or an intent to
injure. Id.,; Russell v. Barrett, 673 S.E.2d 623, 626 (Ga. Ct.
App. 2009). "The rationale for this immunity is to preserve the
public employee's independence of action without fear of
lawsuits and to prevent a review of his or her judgment in
hindsight." Cameron, 549 S.E.2d at 344.

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"A ministerial act is commonly one that is simple,
absolute, and definite, arising under conditions admitted or
proved to exist, and requiring merely the execution of a
specific duty." Russell, 673 S.E.2d at 626. "A discretionary
act, however, calls for the exercise of personal deliberation
and judgment, which in turn entails examining the facts,
reaching reasoned conclusions, and acting on them in a way not
specifically directed." Id. at 626-27. Here, Defendant
Vickers' interactions with Plaintiffs required him to exercise
judgment. As he dealt with Plaintiffs in a heated and tense
situation, he was required to make judgments as to how to
respond to their requests and criticism. Specifically, his
challenged actions—pulling out his taser and pointing it at
plaintiffs, ushering Plaintiffs out of his office and closing
the door to keep them out, and confronting Plaintiffs in the
hallway—were discretionary acts. See Cameron, 549 S.E.2d at 345
(holding that law enforcement officer exercised discretion when
engaging in high speed chase and noting that court had
"previously held that a law enforcement officer exercises
discretion in responding to an emergency call, entrusting a car
to a jail inmate, executing a search warrant, and firing a gun
at a suspect.").
Because Plaintiffs challenge Vickers' discretionary actions
taken within the scope of his official authority, Plaintiffs
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must demonstrate actual malice or actual intent to cause injury
to pierce the shield of official immunity under Georgia law.
Id. In the context of official immunity, "actual malice
requires a deliberate intention to do wrong and denotes express
malice or malice in

fact."

Adams v. Hazelwood, 520 S.E.2d 896,

898 (Ga. Ct. App. 1999). As explained by the Eleventh Circuit,
"malice in this context means badness, a true desire to do
something wrong." Peterson v. Baker, 504 F.3d 1331, 1339 (11th
Cir. 2007). In addition, "actual intent to cause injury" means
"an actual intent to cause harm to the plaintiff, not merely an
intent to do the act purportedly resulting in the claimed
injury." Id.
The Georgia Court of Appeals' opinion in Selvy v. Morrison,
665 S.E.2d 401 (Ga. Ct. App. 2008), is instructive in
determining what constitutes malice in the context of Vickers'
interaction with Plaintiffs. There, the plaintiff alleged that
she was brutally treated when she was arrested for disorderly
conduct. Selvy, 665 S.E.2d at 403. Specifically, she alleged
that the officers used profanity towards her, made derogatory
statements about her and her boyfriend, threatened to break down
her door if she refused to open it, grabbed her arm, twisted her
arm behind her back, and slammed her face into a wall. Id.
Additionally, an officer kicked her legs out from under her, and
in the process, kicked her ten-year-old son in the mouth. Id.
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Nonetheless, the Georgia Court of Appeals found that the
plaintiff failed to demonstrate that the officers acted with
actual malice or intent to injure the plaintiff. Id. at 404-05.
Thus, the court affirmed the trial court's grant of summary
judgment to the officers on grounds of official immunity. Id.
The court explained,
In the context of official immunity, actual malice
requires a deliberate intention to do wrong and
denotes express malice or malice in fact. Actual
malice does not include implied malice, or the
reckless disregard for the rights and safety of
others. A deliberate intention to do wrong such as to
constitute the actual malice necessary to overcome
official immunity must be in the intent to cause the
harm suffered by the plaintiffs. Likewise, the phrase
"actual intent to cause injury" has been defined in a
tort context to mean an actual intent to cause harm to
the plaintiff, not merely an intent to do the act
purportedly resulting in the claimed injury. This
definition of intent contains aspects of malice,
perhaps a wicked or evil motive.
Id. (internal quotations and citations omitted). Significantly,
the court concluded that "[e]vidence demonstrating frustration,
irritation, and possibly even anger is not sufficient to
penetrate official immunity, nor is proof of ill will, unless
the ill will is combined with the intent to do something
wrongful or illegal." Id. at 406; see also, Tittle v. Corso,
569 S.E.2d 873 (Ga. App. 2002) (officer's threats, use of
profanity, and act of slamming a motorist against his vehicle
were insufficient to establish actual malice).

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1. Official Immunity Analysis as to Vickers' Pointing of
Taser

Plaintiffs have not offered any evidence from which a
rational juror could conclude that Defendant Vickers acted with
actual malice or actual intent to cause injury to Plaintiffs by
drawing and pointing his taser. In his statement of undisputed
material facts and attached affidavit, Vickers stated that when
he could not find that videotape the parents had requested, the
father began to criticize him. Dkt. no. 58-1, pp. 3-4; dkt no.
58-3, pp. 3-4. Defendant Vickers then asked the father, the
mother, and the son to step into the hallway "to diffuse the
situation." Id. Despite Defendant Vickers asking the family to
leave his office on five occasions and twice asking if there was
anything he could do to get them to comply with his requests,
they refused to step out and "grew increasingly agitated." Id.
Defendant Vickers drew his taser due to their increasing
agitation and refusal to comply with his requests. Id. Again,
Plaintiffs did not file anything disputing these material facts,
much less pointing to record evidence contradicting Vickers'
account.
Plaintiffs alleged in their Amended Complaint that
Defendant Vickers "stated that he was sick of their mouths and
their attitudes," stated that "he did not have to show them
anything," and threatened to throw them in jail and pulled out

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his handcuffs prior to pointing the taser at the father's head.
Dkt. no. 31, p. 5. However, Plaintiffs have not pointed to any
record evidence to support these allegations. Moreover, these
facts do not establish any actual malice towards Plaintiffs or
actual intent to cause them injury. Vickers' alleged actions
are far less indicative of wrongful animus than those alleged in
Selvy, 665 S.E.2d at 403, and Tittle, 569 S.E.2d 873. In those
cases, despite the more incriminating allegations against the
defendant officers than those levied by Plaintiffs, the Georgia
Court of Appeals found that official immunity shielded the
officers from liability. Likewise, even if Defendant Vickers'
frustration and impatience with Plaintiffs caused him to express
ill will towards them, his statements do not imply that his
decision to pull out his taser and point it towards the father
was a product of malice.
The undisputed facts establish that Plaintiffs refused to
leave Defendant Vickers' office, despite his multiple requests
that they do so, and that Defendant Vickers then took action to
induce Plaintiffs' compliance with his requests. Accordingly,
Defendant Vickers is entitled to official immunity as to
Plaintiffs' state law claims arising out of his pointing a. taser
at the father.

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2. Official Immunity Analysis as to Closing Door on the
Mother

Vickers is also entitled to official immunity regarding
Plaintiffs' claims that he closed the door on the mother. As
recounted above, Plaintiffs allege that as they attempted to
leave Vickers' office, Vickers "slammed and continued to close
the door on Mrs. Simpson, [the mother]." Dkt. no. 31,

p. 5.

They allege that the impact caused her to stumble and that her
son had to grab her by the waist to prevent her from falling.
Id. Plaintiffs offered no record evidence in support of this
allegation in response to Defendant Vickers' Motion for Summary
Judgment. In his statement of undisputed material facts,
Defendant Vickers explains that the mother continued to argue
with him as she left the office and attempted to push the door
back towards Vickers to prevent it from closing. Dkt. no. 58-1,
p. 4. Vickers further avers that because the window in the door
to his office was covered with a large poster, he could not see
the mother as he closed the door. Id. Thus, he is unaware if
the door hit her. Id. Again, Plaintiffs did not directly
respond to these statements of fact.
Even assuming Defendant Vickers hit the mother with the
door when he closed it, Plaintiffs have not established the
level of animus necessary to overcome official immunity.
Specifically, they have not shown that he operated with a true

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desire to do something wrong or an actual intent to cause harm
to the mother. See Peterson, 504 F.3d at 1339. Rather, the
undisputed facts show that he could not even see the mother when
he closed the door, much less intend to harm her. While the
closing of the door occurred in the midst of a heated exchange,
frustration, irritation, and possibly even anger are not
sufficient to penetrate official immunity. Selvy, 665 S.E.2d at
403. Thus, Defendant Vickers is entitled to official immunity
on all state law claims arising out of his closing the door on
the mother.
3. Official Immunity Analysis as to Confrontation in Hallway

Similarly, Plaintiffs allege no facts showing that
Defendant Vickers demonstrated malice or intent to injure them
during their ten-second confrontation in the hallway.
Plaintiffs allege that Defendant Vickers "[b]randished his
[h]andcuffs to them as though he would take them into custody,"
while they were standing in the hall. Dkt. No. 31,

p. 6.

Again, Plaintiffs have offered no record evidence, and they have
not disputed Vickers' stated rationale for speaking to
Plaintiffs in the hallway. See Dkt. No. 58-3,

p. 3. Moreover,

as discussed above, Plaintiff's allegations fall far short of
the animus necessary to pierce the shield of official immunity.
See Selvy, 665 S.E.2d 403; Tittle v. Corso, 569 S.E.2d 873.
Plaintiffs do not dispute that they simply "walked around
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Defendant Vickers and exited the building" after he approached
them in the hallway. This chain of events fails to demonstrate
that Defendant Vickers possessed any malice or intent to injure
Plaintiffs during their confrontation. Accordingly, Defendant
Vickers is entitled to official immunity as to Plaintiffs' state
law claims arising out of their confrontation in the hallway.
Put succinctly, Plaintiffs have failed to show the
requisite level of malice or intent to pierce the shield of
official immunity as to all of their state law claims against
Defendant Vickers. This conclusion does not mean that Defendant
Vickers handled the situation in the best way possible or that
he made no mistakes. See Selvy, 665 S.E.2d at 405 ("The
evidence in this case may have shown poor judgment, rude
behavior, and reckless disregard for the rights and safety of
others on the part of the officers, but . . . we do not find
that this evidence created a jury question concerning whether
the officers had actual malice toward or an actual intent to
injure [plaintiff].") That is not the inquiry under Georgia
law. The Court's "task is not to decide, with the benefit of
hindsight, what [Defendant Vickers] should have done. We are
concerned only with whether [Vickers'] behavior showed a
deliberate intention to commit a wrongful act." Tittle, 569
S.E.2d 877. Pursuant to that inquiry, the Court GRANTS

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Defendant Vickers' Motion for Summary Judgment on all of
Plaintiffs' state law claims.
CONCLUSION

For the reasons and in the manner stated above, the Court
ADOPTS IN PART AND REJECTS IN PART

the Magistrate Judge's Report

and Recommendation. The Court GRANTS Defendant Vickers' summary
judgment on all of Plaintiffs' claims. Accordingly, Plaintiffs'
claims against Defendant Vickers are DISMISSED with prejudice.

The Clerk of Court is DIRECTED to enter the

rate judgment

of dismissal, as to Defendant Vickers.
SO ORDERED,

this

da\\ of

LISA GOD BY OOD, CHIEF
GE
T COURT
UNITED SVATES
SOUTHERil DISTRICT OF GEORGIA

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2016.