Green v. Hooks et al

Filing 68

ORDER granting in part and denying in part 39 Motion to Dismiss; granting in part and denying in part 41 Motion to Dismiss; granting in part and denying in part 43 Motion to Dismiss; denying 50 Motion for Hearing; denying 50 Motion for Order to Show Cause. The Court denied the Defendants' motions to dismiss, ECF 39, 41, 43 with regard to Counts I, II, and III. Therefore, those counts remain. Signed by Judge B. Avant Edenfield on 1/6/15. (wwp) Modified on 1/7/2015 (wwp).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
DARIUS ISHUN GREEN,
Plaintiff,
V

to those defendants mentioned above
(collectively, "Defendants").
For the reasons set forth below, the
Court DENIES IN PART and GRANTS IN
PART the motions to dismiss.
1. BACKGROUND

6: 14-cv-46

.

BRAD HOOKS,
JOHN BROWN,
TORIE GRUBBS,
CHARLES CALHOUN,
BRAD WESTBERRY,
JOHN JORDAN,
WAYNE COOKE,
CHRISTOPHER GAY,
MARK SMITH,
TERRY CALHOUN,
JERMAINE CALHOUN,
CYNTHIA CALHOUN,
JIETTIE CALHOUN,
SHAWN CALHOUN,
BENJAMIN MOURAD,
BASAHAN MCINTOSH, and
JOHN DOE
Defendants.
ORDER
Before the Court are three motions to
dismiss. The first was filed by Cynthia
Calhoun, Jettie Calhoun, Shawn Calhoun,
Christopher Gay, Basahan McIntosh, and
Brad Westberry. ECF No. 39. The second
was filed by John Jordan and Charles
Calhoun. ECF No. 41. The third was filed
by Benjamin Mourad. ECF No. 43. These
motions raise the same points of law and
incorporate each other by reference;
therefore, the Court will evaluate them
together. The following order applies only

Darius Green was sexually assaulted
while incarcerated in Rogers State Prison.
6:14-cv-103-BAE-GRS, ECF No. 1 at 2
(hereinafter "the Complaint").' The attacker
was a fellow prisoner, Ricard. Id. at 3. The
Defendants placed Green in a cell with
Ricard, and they "knew Ricard would
sexually assault Green." See id. at 3-14.
Green filed this action against various
prison officials, arguing that they
"condoned" the assault. Id. at 3-14. The
Complaint alleges several counts against the
Defendants: first, that the Defendants
violated Green's constitutional rights under
the Eighth and Fourteenth Amendment
(Count I); second, that those defendants who
were supervisors are liable for condoning
the assault (Count II); third, that the
Defendants conspired to harm Green (Count
III); and, fourth, that the Defendants failed
to intervene to prevent the assault (Count
IV). See id at 18-24.
III. ANALYSIS
A. Service of Process
The Defendants first argue that Green
failed to effect proper service of process
upon them. ECF Nos. 39-1 at 3-4; 41-1 at 2This case represents the consolidation of two cases,
6: 14-cv-1 03-BAE-GRS and 6: 14-cv-46-BAE-GRS.
Since the latter case survived the consolidation, all
citations are to the latter record unless otherwise
indicated.

§ 1746. See Udoinyion v. The Guardian
Sec., 440 F. App'x 731, 735 (11th Cir. 2011)
("An unsworn written declaration may be
used as evidence if the writer includes and
signs a statement such as, 'I declare under
penalty of perjury that the foregoing is true
and correct." (citing 28 U.S.C. § 1746)).

3. In support of this argument, each
defendant submitted an affidavit, claiming
that he or she received a copy of the
complaint but not the summons itself. See
ECF Nos. 39-2 (Jettie Calhoun); 39-3
(Shaun Calhoun); 39-4 (Gay); 39-5
(McIntosh); 39-6 (Westberry); 39-7
(Cynthia Calhoun); 41-2 (Jordan); 41-3
(Charles Calhoun); 43-2 (Mourad).

Under Rule 4(l)(1), service may be
proved "by the server's affidavit." Fed. R.
Civ. P. 4(l)(1). The Court finds that the
server's sworn statements have sufficient
language to be considered affidavits under
Rule 4(l)( 1). Therefore, the Court finds that
Green properly served the Defendants. 3

A defendant must be provided with a
summons and a copy of the complaint. See
Fed. R. Civ. P. 4(c)(1). "Except for service
by a United States marshal or deputy
marshal, proof must be by the server's
affidavit." Fed. R. Civ. P. 4(l)(1).

B. Rule 12(b)(6)

Here, the Defendants acknowledge that
they received the complaint. See ECF Nos.
39-1 at 4; 41-1 at 3; 43-1 at 3. Their
argument is that they received only the
complaint and not the summons. But the
servers' sworn testimony belies these
claims. After each of the Defendants was
served, the server provided the Court a
"return of service" that includes a sworn
statement by the server that he provided
both the complaint and the summons. See
6:14-cv-103-BAE-GRS, ECF Nos. 7
(Charles Calhoun); 8 (Cynthia Calhoun); 9
(McIntosh); 10 (Gay); 11 (Jordan); 12 (Jettie
Calhoun); 13 (Shaun Calhoun); 15
(Mourad); 16 (Westberry). The returns also
display the Defendants' signatures, see id.,
though their presence is not itself
dispositive.2 Although not entitled
"affidavit," the Court gives these returns the
same weight as if they were because they
complied with the requirements of 28 U.S.C.

The bulk of the Defendants' Motions to
Dismiss concerns their argument that Green
has failed to state a claim for relief. Under
Rule 12(b)(6), a pleading that fails to state a
claim for relief must be dismissed. See Bell
Ad. Corp. v. Twombly, 550 U.S. 544, 570
(2007).
1. Standard of Review
In considering a Federal Rule of Civil
Procedure 12(b)(6) motion, all facts in the
plaintiffs complaint "are to be accepted as
true and the court limits its consideration to
the pleadings and exhibits attached
thereto." GSW, Inc. v. Long Cnty,, Ga., 999
F.2d 1508, 1510 (11th Cir. 1993). The
Court, however, is not limited to the four
corners of the pleadings; rather a proper
review of a motion to dismiss "requires the
reviewing court to draw on its judicial
Green requested a hearing to allow evidence and
argument on the issue of whether the Defendants
were properly served. ECF No. 50. Because the
Court rules that service was sufficient, Green's
request is denied as unnecessary.

2

One copy of the served summons does not contain a
signature. See 6:14-cv-103-BAE-GRS, ECF No. 16
(Westberry's Summons).

2

approach" to assessing a defendant's Rule
12(b)(6) motion: "1) eliminate any
allegations in the complaint that are merely
legal conclusions; and 2) where there are
well-pleaded factual allegations, 'assume
their veracity and then determine whether
they plausibly give rise to an entitlement to
relief." Am. Dental Ass 'n v. Cigna Corp.,
605 F.3d 1283, 1290 (11th Cir. 2010)
(quoting Iqbal, 556 U.S. at 679)).
Importantly, however, the "plausibility
standard is not akin to a 'probability
requirement' at the pleading stage." Id at
1289 (quoting Iqbal, 556 U.S. at 678).
Instead, it "' simply calls for enough fact to
raise a reasonable expectation that discovery
will reveal evidence of the necessary
elements" of a plaintiffs claim for relief.
See McCray v. Potter, 263 F. App'x 771,
773 (11th Cir. 2008) (quoting Twombly, 550
U.S. at 556).

See
experience and common sense."
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
A complaint will not be dismissed so
long as it contains factual allegations
sufficient "to raise a right to relief above the
speculative level." Twombly, 550 U.S. at
555; see Iqbal, 556 U.S. at 678 (claim must
have "facial plausibility"); Edwards v.
Prime, Inc., 602 F.3d 1276, 1291 (11th Cir.
2010). Yet, "a plaintiffs obligation to
provide 'grounds' of his 'entitle[ment] to
relief requires more than labels and
conclusions, and a formulaic recitation of
the elements of a cause of action will not
do." Twombly, 550 U.S. at 555 (alteration in
original).
In Iqbal, the Supreme Court further
explained the required level of specificity:
A claim has facial plausibility when the
plaintiff pleads factual content that
allows the court to draw the reasonable
inference that the defendant is liable for
the misconduct alleged. The plausibility
standard is not akin to a probability
requirement, but it asks for more than a
sheer possibility that a defendant has
acted unlawfully.

"Judgment on the pleadings is
appropriate only when the plaintiff can
prove no set of facts in support of his claim
which would entitle him to relief." Horsley
v. Feldt, 304 F.3d 1125, 1131 (11th Cir.
2002) (quotation marks omitted).
I:
2. Count
Violations

556 U.S. at 678 (internal citation and
quotation omitted).

Constitutional

Green alleges that the Defendants
violated the Eighth and Fourteenth
Amendments by "condoning and promoting
unsafe prison conditions," which led to the
assault. Complaint at 18-20.

In order to assess the plausibility of a
complaint, a court must be mindful of two
principles. "First, the tenet that a court must
accept as true all of the allegations contained
in a complaint is inapplicable to legal
"Second, only a
Id.
conclusions."
complaint that states a plausible claim for
relief survives a motion to dismiss." Id at
679. Thus, Iqbal suggests a "two-pronged

'deliberate
official's
"A
prison
indifference' to a substantial risk of serious
harm to an inmate violates the Eighth
Amendment." Farmer v. Brennan, 511 U.S.
825, 828 (1994). To succeed on a claim of
91

failing to protect, a plaintiff "must plead
facts that establish '(1) a substantial risk of
serious harm; (2) the defendants' deliberate
indifference to that risk; and (3) causation."
Losey v. Warden, 521 F. App'x 717, 719
(11th Cir. 2013) (quoting Hale v. Tallapoosa
Cnly., 50 F.3d 1579, 1582 (11th Cir. 1995));
see also Spires v. Paul, 581 F. App'x 786,
792 (11th Cir. 2014) ("To state an Eighth
Amendment claim under § 1983, a prisoner
must allege an extreme condition that poses
an unreasonable risk of serious damage to
the prisoner's future health or safety, and
that the defendants acted with deliberate
indifference to that risk."). A prison official
shows deliberate indifference if he "knows
of and disregards an excessive risk to inmate
health or safety; the official must both be
aware of facts from which the inference
could be drawn that a substantial risk of
serious harm exists, and he must also draw
the inference." Farmer, 511 U.S. at 837.

Servs., 901 F.2d 1571, 1573 (llthCir. 1990)
("On a motion to dismiss, the facts stated in
appellant's complaint and all reasonable
inferences therefrom are taken as true.").

Here, the Complaint alleges that the
Defendants placed Green in a position with
a substantial risk of serious harm.
Complaint at 19. The Complaint alleges
that, by placing Ricard in Green's cell, the
Defendants acted with deliberate
indifference to this risk. Id. Finally, the
Complaint alleges causation—i.e., that the
Defendants' act of placing Ricard in the cell
led directly to Green's harm. Id. These
allegations are repeated for each of the
Defendants, arguing that each saw Ricard in
Green's cell, that each knew Ricard was not
supposed to be there, and that each "knew
that Ricard would sexually assault Green."
See Complaint at 3. The Court accepts, as it
must, that these factual allegations are true.
See Stephens v. Dept of Health & Human

The Defendants argue that Green's
allegations are conclusory. ECF No. 39-1 at
11. They are not. Green alleges that the
Defendants acted with deliberate
indifference and then supports that
allegation with factual assertions of the
Defendants' knowledge. Because the
"[C]ourt's review on a motion to dismiss is
'limited to the four corners of the
complaint," see Wilchombe v. TeeVee
Toons, Inc., 555 F.3d 949, 959 (11th Cir.
2009) (quoting St. George v. Pinellas Cnly.,
285 F.3d 1334, 1337 (11th Cir. 2002), the
factual assertions that the Defendants had
subjective knowledge of the risk that Ricard
would sexually assault Green are sufficient
to support the allegation that the Defendants
violated Green's constitutional rights.

Green's allegations are sufficient to
establish deliberate indifference by the
Defendants. If the Defendants knew that
Ricard would sexually assault Green and
permitted him to remain in the cell, they
"disregard[ed] an excessive risk to [Green's]
health or safety." See Farmer, 511 U.S. at
837. The Complaint alleges that Ricard was
a known rapist and that each of the
Defendants knew this. Complaint at 16. In
short, it alleges that the Defendants were
aware of facts from which the inference of
risk could be drawn and that they drew the
Whether Green can
inference. See id
support these allegations with evidence is
unknown; however, the Court finds that the
Complaint has set out sufficient facts to
survive the Defendants' motion to dismiss.

ru

presence, the officer is directly liable under
Section 1983." Ensley v. Soper, 142 F.3d
1402, 1407 (11th Cir. 1998) (second
alteration in original) (quotation marks
omitted). But Eleventh Circuit has declined
to expand this sort of claim: "While it is
well settled that Ensley applies to situations
where one officer observes a fellow officer
violating a constitutional right, typically by
using excessive force, we have not explicitly
adopted this holding in a situation involving
an officer observing a fight between
inmates." Johnson v. Boyd, 568 F. App'x
719, 722 n. 2 (11th Cir. 2014) (affirming the
district court's dismissal of a complaint for
"failure to intervene" in a prisoner fight).
Green's claim that the Defendants failed to
intervene is not supported by existing law,
because a failure to intervene claim does not
apply to a prison official's failure to
intervene in an altercation between
prisoners. See Id

Therefore, the Court denies the
Defendants' motion to dismiss Count I.
3. Count IV: Failure to Intervene
Green also alleges that the Defendants
are liable for failing to intervene to stop the
assault. Complaint at 24. The Defendants
seek the dismissal of this claim, ECF No.
39-1, but Green argues that the Defendants
waived the right to oppose Count IV by
failing to address it separately, ECF No. 63
at 8.
As an initial matter, the Court agrees
with the Defendants that Count IV is nearly
identical to Count I. The Complaint does
not distinguish between these Counts, and
the factual allegations supporting them are
identical. The Defendants argued as much
in their motions. See ECF No. 39-1 at 10.
As a result, because Counts I and IV are
essentially the same claim, the Court finds
that the Defendants did not fail to address
Count IV in their motions to dismiss. 4

Therefore, because the Complaint does
not allege a cause of action recognized by
this Circuit, the Court dismisses Count IV.

In any case, the Complaint does not
allege facts sufficient for a separate failureto-intervene claim. "[flt is clear that [i]f a
police officer, whether supervisory or not,
fails or refuses to intervene when a
constitutional violation such as an
unprovoked beating takes place in his

4, Count III: Conspiracy
The complaint also lists a claim for
"civil conspiracy," alleging that the
Defendants conspired to violate Green's
constitutional rights. ECF No. I at 22-23.
"A plaintiff may state a § 1983 claim for
conspiracy to violate constitutional rights by
showing a conspiracy existed that resulted in
the actual denial of some underlying
Grider v. City of
constitutional right."
618 F.3d 1240, 1260 (11th
Auburn, Ala.,
Cir. 2010). A conspiracy "requires the
combination of two or more persons acting
in concert," and "[a] plaintiff must allege,

The authority Green provides to support the
argument that the Defendants waived their right to
have Count IV dismissed is inapposite. In the case
cited, the Eleventh Circuit discussed the waiver of an
affirmative defense when a party filed "a second preanswer motion to dismiss." Skrtich v. Thornton, 280
F.3d 1295, 1306 (11th Cir. 2002). Neither
characteristic is shared with this case: no defendant
has filed a second motion to dismiss, and the only
affirmative defense at issue here (qualified immunity)
was indisputably raised in the Defendants' answer.

5

either by direct or circumstantial evidence, a
meeting of the minds or agreement among
the defendants." See Brever v. Rockwell
Intl Corp., 40 F.3d 1119, 1126 (1 0th Cir.
1994) (quotations omitted). In alleging
conspiracy, "the linchpin. . . is agreement."
Bailey v. Bd. of Cnty. Commrs of Alachua
Cnty. Fla., 956 F.2d 1112, 1122 (11th Cir.
1992). "It is not enough to simply aver that
a conspiracy existed. A plaintiff must
instead show that the parties reached an
understanding to deny the plaintiff his
rights." Fulwood v. Fed. Bureau of Prisons,
568 F. App'x 753, 756 (11th Cir. 2014)
(citation omitted). When a "plaintiff fail[s]
to allege specific facts showing agreement
and concerted action among defendants,"
courts properly dismiss conspiracy claims.
Durre v. Dempsey, 869 F.2d 543, 545 (10th
Cir. 1989).
Although Green has provided minimal
allegations of a conspiracy, they are
sufficient to survive a motion to dismiss.
Green alleges that the Defendants "agreed"
with one another to place Ricard in Green's
cell. Complaint at 16-17. This agreement
was made "with all other Defendants." Id.
Green also provides circumstantial
allegations, arguing that "there is no way"
that the assault could have occurred absent a
conspiracy. Id. at 22. Therefore, Green has
sufficiently alleged the existence of a
conspiracy.
The Defendants argue that the
intracorporate conspiracy doctrine bars
Green's claim for conspiracy. ECF No. 52
at 13-14. "[U]nder the doctrine, a
corporation cannot conspire with its
employees, and its employees, when acting
in the scope of their employment, cannot

conspire among themselves." McAndrew v.
Lockheed Martin Corp., 206 F.3d 1031,
1036 (11th Cir. 2000). This is because,
"under basic agency principles, the acts of a
corporation's agents are considered to be
those of a single legal actor." Id The
doctrine also applies to public entities.
Denney v. City of Albany, 247 F.3d 1172,
1190 (11th Cir. 2001). Naturally, since the
doctrine necessarily involves only
conspirators within one organization, the
presence of outside parties prevents its
application. Cf id. at 1191 (affirming the
application of the intracorporate conspiracy
doctrine when "no outsiders are alleged to
be involved").
The Defendants are all employees of the
Rogers State Prison. But the Complaint
does not limit its allegation of conspiracy to
the Defendants: Ricard is also alleged to
See
have been a fellow conspirator.
According to the
Complaint at 23.
Complaint, Tone Grubbs "conspired with
Green's sexual assailant and Hon Doe [sic]
to have Green placed in a cell with the
person . . . [they] knew would sexually
assault Green again." Id. Including a nonofficial in a § 1983 action is permissible,
Motes v. Myers, 810 F.2d 1055, 1058 (11th
Cir. 1987) ("[A] private party's joint
participation with state officials in the
seizure of disputed property is sufficient to
characterize that party as a 'state actor' for
purposes of the Fourteenth Amendment."),
but this inclusion means that the
intracorporate conspiracy doctrine does not
apply. Since Ricard is alleged to have been
a member of the conspiracy, dismissal under
the intracorporate conspiracy doctrine would
be inappropriate at this stage.

authority." Id. If this is established, the
burden next "shifts to the plaintiff to show
that the defendant is not entitled to qualified
immunity." Id, at 1358.

Therefore, the Court denies the
Defendants' motions to dismiss Count III.
C. Qualified Immunity
In addition to opposing Green's
Complaint on its face, the Defendants have
raised the affirmative defense of qualified
immunity to Green's claims. ECF No. 39-1
at 14-16. Qualified immunity protects "all
but the plainly incompetent or those who
knowingly violate the law." Malley v.
Briggs, 475 U.S. 335, 341 (1986).

Determining whether a defendant is
entitled to qualified immunity requires a
two-step process. First, the court must
determine whether the complaint "make[s]
out a violation of a constitutional right."
Pearson v. Callahan, 555 U.S. 223, 232
(2009). Second, "the court must decide
whether the right at issue was 'clearly
established' at the time of defendant's
alleged misconduct." Id. "Defendants are
entitled to qualified immunity in a Rule
12(b)(6) motion to dismiss only if the
complaint fails to allege facts that would
show a violation of a clearly established
constitutional right." Kyle K v. Chapman,
208 F.3d 940, 942 (11th Cir. 2000).

"The defense of qualified immunity may
be raised and addressed on a motion to
dismiss and will be granted if the 'complaint
fails to allege the violation of a clearly
established constitutional right." Snider v.
Jefferson State Cmty. Coil., 344 F.3d 1325,
1327 (11th Cir. 2003) (quoting Chesser v.
Sparks, 248 F.3d 1117, 1121 (11th Cir.
2001) (quotation omitted)).

The Defendants assert, and Green does
not dispute, that they were acting within
their discretionary authority at the time of
the assault. ECF No. 39-1 at 14. The Court
agrees, since by placing prisoners in cells
the Defendants were "performing a
legitimate job-related function . . . through
means that were within [their] power to
utilize." See Holloman ex rd. Holloman v.
Harland, 370 F.3d 1252, 1265 (11th Cir.
2004). Thus, the burden shifts onto Green
to, first, make out a violation of a
constitutional right and, second, demonstrate
that the right was clearly established at the
time of the alleged violation. See Pearson,
555 U.S. at 232.

Once the affirmative defense of qualified
immunity is advanced . . . [u]nless the
plaintiffs allegations state a claim of
violation of clearly established law, a
defendant pleading qualified immunity is
entitled to dismissal before the
commencement of discovery.' Absent
such allegations, '[i]t is . . . appropriate
for a district court to grant the defense of
qualified immunity at the motion to
dismiss stage.' Thus, if the defendants in
this case are entitled to qualified
immunity, then their Rule 12(b)(6)
motion to dismiss must be granted and
the plaintiffs' suit must be dismissed.

Cottone v. Jenne, 326 F.3d 1352, 1357 (11th
Cir. 2003) (alterations in original) (citations
omitted). "To receive qualified immunity, a
government official first must prove that he
was acting within his discretionary

Green alleges that the Defendants
violated the Eighth and Fourteenth
Amendments to the United States
7

Constitution when they permitted Ricard to
be in the cell, even though they knew that
Ricard would assault Green. Complaint at
19. The Complaint's allegations therefore
satisfy the first step in denying the
Defendants qualified immunity. See Cotton,
326 at 1357.
Second, Green has demonstrated that the
right of a prisoner to be protected by prison
officials from sexual assault by other
prisoners is clearly established. To
determine whether a right was clearly
established, the Court looks to the decisions
of the Supreme Court, the Eleventh Circuit,
and the Supreme Court of Georgia. See
Saunders v. Duke, 766 F.3d 1262, 1266
(11th Cir. 2014). The Supreme Court has
made clear, in a case involving the sexual
assault of a prisoner, that "prison officials
have a duty . . . to protect prisoners from
violence at the hands of other prisoners."
Farmer, 511 U.S. at 833 (alteration in
original) (quotation omitted). It is clearly
established that "[b]eing violently assaulted
in prison" is not a legitimate part of a
See id. at 834.
prisoner's punishment.
Thus, when prison officials are deliberately
indifferent to violent assaults, they violate a
clearly established right.
The Complaint alleges that the
Defendants, while acting within their
discretionary authority, violated a clearly
established constitutional right. Therefore,
given that the Court must take the facts in
the Complaint as true, the Defendants are
not entitled to qualified immunity at this
stage.
1. Count II: Supervisory Liability

Green also lists a claim for supervisory
liability against some of the Defendants
(Hooks, Brown, Grubbs, Jordan, Cook, Gay,
Smith, and McIntosh). ECF No. 1 at 17;
Complaint at 20. The majority of these
defendants do not move to dismiss Count II;
only defendants Gay and McIntosh move to
dismiss it, and they seek to dismiss it only
on the basis of qualified immunity. See ECF
No. 39-1 at 16.
Supervisory officials cannot be held
liable under § 1983 on the basis of
respondeat superior or vicarious liability.
Cottone, 326 F.3d at 1360. Supervisors can,
however, "be held liable for their
subordinates' constitutional violations on the
basis of supervisory liability." Mathews v.
Crosby, 480 F.3d 1265, 1270 (11th Cir.
2007). "[A] supervisor [can] be held
responsible under 42 U.S.C. § 1983 for
constitutional violations committed by
subordinates if the supervisor personally
participated in the constitutional violation or
if there was a causal connection between the
supervisor's actions and the alleged
Williams v.
constitutional deprivation."
Santana, 340 F. App'x 614, 617 (11th Cir.
2009) (citing Brown v. Crawford, 906 F.2d
667, 671 (11th Cir. 1990)). A prisoner can
establish the necessary causal connection by
alleging that "a 'history of widespread
abuse' put[] the responsible supervisor on
notice of the need to correct the alleged
deprivation, and he or she fail[ed] to do so."
Mathews, 480 F.3d at 1270 (citing Cottone,
326 F.3d at 1360).
Here, there are no allegations that
widespread abuse was occurring within the
prison. Instead, the Complaint alleges only
that Gay and McIntosh personally

participated in the constitutional violation.
Complaint at 21 ("Defendants named in this
Count are potentially liable under this Count
because they directly participated in the
alleged constitutional violation").
Therefore, since Count II is based upon the
same factual allegations as the other counts,
Gay and McIntosh's claim of qualified
immunity under Count II is governed by the
Court's previous analysis of qualified
immunity. As the Court discussed above,
none of the Defendants are currently entitled
to qualified immunity because the
Complaint alleges that they violated a
clearly established constitutional right.
Therefore, Gay and McIntosh are not
entitled to qualified immunity for Count II.
IV. CONCLUSION
This case has been complicated by
overlapping counts for relief, by the
consolidation of two civil actions into one,
and by the filing of numerous overlapping
motions to dismiss. Therefore, in
conclusion, the Court takes the opportunity
to clarify the status of the litigation thus far.
In the two complaints, Green sued
sixteen named defendants: Brad Hooks,
John Brown, Tone Grubbs, Charles
Calhoun, Brad Westberry, John Jordan,
Wayne Cook, Christopher Gay, Mark Smith,
Terry Calhoun, Jermaine Calhoun, Cynthia
Calhoun, Jettie Calhoun, Shawn Calhoun,
Benjamin Mourad, and Basahan McIntosh.
Defendants Hooks, Brown, Grubbs,
Terry Calhoun, Jermaine Calhoun, Shawn
Calhoun, and Cook have filed no motions to
dismiss. Therefore, no portion of the
Complaint is dismissed for those defendants.
Defendant Smith filed a Motion to Dismiss

on January 2, 2015, ECF No. 66, which has
been referred to the Magistrate Judge.
In this order, the Court GRANTED the
Defendants' motions to dismiss, ECF Nos.
39, 41, 43, with regard to Count IV.
Therefore, Count IV is dismissed with
regard to Cynthia Calhoun, Jettie Calhoun,
Shawn Calhoun, Christopher Gay, Basahan
McIntosh, Brad Westberry, John Jordan,
Charles Calhoun, and Benjamin Mourad.
The Court DENIED the Defendants'
motions to dismiss, ECF Nos. 39, 41, 43,
with regard to Counts I, II, and III.
Therefore, those counts remain.
Finally, because the Court found that
service of process upon the objecting
defendants was proper, the Court DENIES
Green's motion for a hearing as
unnecessary, ECF No. 50.

This

day of January 2015.

B. AVANT EDENFIELD, $JDGE/
UNITED STATES DISTI$CT COURT
SOUTHERN DISTRICTF GEORGIA