Washington v. Rivera et al

Filing 32

ORDER denying 23 Motion to Stay Proceedings. Signed by Magistrate Judge G. R. Smith on 3/8/17. (jrb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
AKEEM WASHINGTON,
Plaintiff,
v.
SHANNON RIVERA, in her
individual capacity and TINA
E. ELLIS, in her individual
capacity,

CV616-167

Defendants.

ORDER
“The secretary did it.” That’s how this case got started, and that
assertion figures into a defendant’s motion to stay proceedings in this
wrongful arrest case until the district judge rules on her dismissal motion.
Docs. 21 & 23. The story begins with plaintiff Akeem Washington’s
October 10, 2011 speeding conviction in Bryan County, Georgia. A judge
imposed an $895 fine, then leveraged prompt payment by imposing
probation (which itself would cost him additional fees) to terminate upon
payment. Doc. 11 at 5-6. 1 Washington paid it that day, id . at 7, and a

1

For the purpose of this Order, the Court is accepting facts taken from the cited
filings as true.
1

clerk noted that fact in the clerk’s office database the next day.

Id . at 11,

12. Defendant Tina Ellis, secretary to probation officer (and
co-defendant) Shannon Rivera, was obliged to, but failed, to notify Rivera.

Id. at 11, 12; doc. 21 at 4. And Rivera failed to double-check months
later, before swearing out a probation-violation arrest warrant. 2 Doc. 11
at 12-14, 19. The resulting arrest cost plaintiff his job.

Id. at 15.

Washington sued both women under 42 U.S.C. § 1983 and state law.
Doc. 11 at 2. Moving for Judgment on the Pleadings (JOP), Rivera
contends that “Washington’s claims under 42 U.S.C. §1983 are barred by
both quasi-judicial immunity and qualified immunity. His claims under
Georgia law are also barred twice over -- both by quasi-judicial immunity
and by the Georgia Tort Claims Act. Dismissal of all claims asserted
against Rivera in Washington’s Second Amended Complaint is
warranted.” Doc. 21 at 3.
2

“Apparently,” says Rivera, “Washington had improperly paid the fine (but not the
fees) to the clerk of court rather than Rivera, but it is undisputed that Rivera was not
aware Washington had done so.” Doc. 21 at 1. Rivera represents that she “was
present in the courtroom when the arrangement for Washington to pay his fine was
made, and as the clerk’s notes reflect, the agreement was that Washington ‘Must pay
by 10-25 @ 5 pm or he stays on prob. If pays then call Shannon so she can release his
prob.’ Rivera was under the belief that she would be contacted if Washington paid his
fine, and it is undisputed that Rivera was never told by anyone that Washington had
paid.” Doc. 31 at 13 (cites omitted).
2

Rivera contends that her “arrest” decision was a discretionary
function entitling her to qualified immunity from Washington’s § 1983
claim. 3 Doc. 31 at 7-8. Confident that she’ll prevail, she moves to stay
this case until the district judge rules on her JOP motion. 4 Doc. 23. The
undersigned will reach her stay motion, and thus take a “preliminary
peek” at her JOP motion’s strength. 5
That inquiry encompasses different thresholds for state versus
federal claims.

Compare Houston v. Owens , 2011 WL 7090811 at * 1

(S.D. Ga. Dec. 6, 2011) (analyzing elements that establish a cognizable
claim for unlawful detention under § 1983 in “excess-incarceration” case;
3

“Parole and probation officials, like police officers, are entitled to qualified
immunity for their non-adjudicatory, i.e . discretionary, activities.”
Presley v.
Morrison, 950 F. Supp. 1298, 1304 (E.D. Pa. 1996). Qualified immunity analysis
employs two steps -- whether the government official was engaged in a “discretionary
function” and, if so, did she lack good faith ( i.e. , violate clearly established law). See,
e.g ., O’Rourke v. Hayes , 378 F.3d 1201, 1210 (11th Cir. 2004) (because probation
officer’s conduct was clearly established as unconstitutional, he was not entitled to
qualified immunity); Presley , 950 F. Supp. at 1304-05 (probation officer had qualified
immunity on probationer's unlawful arrest civil rights claim, despite probationer’s
allegation that officer had arrested him with knowledge that probationer was
innocent).
4

Ellis, who does not move for summary disposition, has filed an Answer denying
liability and invoking immunity defenses. Doc. 19.
5

On such stay motions the Court preliminarily gauges the dispositive motion to
assess the likelihood that it will be granted and thus moot discovery. Rankin v. Board
of Regents of the University System of Georgia , 2017 WL 536848 at * 2 (S.D. Ga. Feb. 8,
2017); Taylor v. Jackson , 2017 WL 71654 at * 1 n. 2 (S.D. Ga. Jan. 6, 2017).
3

a plaintiff must allege (1) intent to confine, (2) acts resulting in
confinement, and (3) consciousness of the victim of confinement or
resulting harm) (citing Orega v. Christian, 85 F.3d 1521, 1527 n. 2 (11th
Cir. 1996)), with Hicks v. McGee , 289 Ga. 573, 576 (2011) (superior court
clerk and court employee were not entitled to official immunity from
state-law claim over their negligent failure to inform Department of
Corrections of prisoner’s sentence within 30 days of receipt of amended
sentencing order, resulting in 22-month, excess-incarceration claim;
specific actions mandated by state statute were ministerial and
unambiguously triggered by the amended order, and it did not matter if
defendants failed to recognize amended order as a sentencing order).
The § 1983 claim thus rests on conscious knowledge, if not reckless
disregard of facts establishing that Washington’s probation had
terminated upon payment of his fine (equivalent to criminal recklessness
in some contexts, see Gordon v. Wilcher , 2016 WL 7911910 at * 2 (S.D. Ga.
Dec. 21, 2016) (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)). The
state-law negligence claim requires far less. Washington accuses Ellis of
conscious knowledge: “Ellis knew prior to February 7, 2012 that
Washington had paid the court imposed fine on October 10, 2011.
4

Nevertheless, [she] prepared the warrant application for Rivera’s warrant
against Washington and even notarized Rivera’s signature. She did not
inform Rivera of Washington’s payment.” Doc. 11 at 20, 1111 98-99.
Knowingly triggering a false arrest fetches § 1983 liability for state
actors. Kingsland v. City of Miami , 382 F.3d 1220, 1233 (11th Cir. 2004)
(fact questions as to whether arresting officers had made deliberately false
statements on arrest affidavit supporting arrest and subsequent
prosecution precluded summary judgment for officers on qualified
immunity grounds). Alas, Ellis is not moving for JOP.
Washington’s Amended Complaint allegations against Rivera speak
more in negligence than intent -- obviously a key distinction in supporting
a § 1983 versus state-law claim (he raises both against her). 6 Doc. 11 at
19-20, 1111 91-96. But in his stay-motion reply brief he insists:
“Washington alleges that Rivera falsely swore out an arrest warrant
6

See Fleming v. Dowdell , 434 F. Supp. 2d 1138, 1157-58 (M.D. Ala. 2005) (state
parole board acted within its general subject matter jurisdiction in revoking parolee’s
parole, so defendant members were entitled to absolute quasi-judicial immunity on
parolee’s § 1983 constitutional claims -- board was unaware that federal court had
invalidated his conviction); Ortega, 85 F.3d at 1525-27 (applying knowledge-based
elements of an unlawful-detention based § 1983 claim), cited in Bracknell v.
Montgomery County Comm’n , 2007 WL 1034961 at * 4 (M.D. Ala. Mar. 29, 2007)
(rejecting “excess incarceration,” § 1983 claim because plaintiff failed to allege
deliberate indifference).
5

claiming that he had failed to pay his traffic fine, [so] qualified immunity
is simply not available.” Doc. 29 at 5 (citing Kingsland ).
The district judge will sort all of that out.
In the meantime, the parties have already conducted substantial
discovery; Rivera has already been deposed and has responded to
traditional written discovery. Doc. 29 at 4, 5. Hence, little “litigational
efficiency” would be gained by stopping it now. And even if the federal
claim is dismissed, Washington’s state law ( Hicks -type) claim appears
viable -- at least against Ellis. So, the risk is low that discovery will be
wasted, even if this case is ultimately tried in state court. 7
Shannon Rivera’s Motion to Stay these proceedings is therefore

DENIED . Doc. 23.
SO ORDERED , this 8th day of March, 2017.

IINITEI) STATES MAGISTRATE JUDGE
SOUTFLEI'T DISTRICT OF GEORGIA

7

When federal claims “evaporate,” a federal court can dismiss the case so the
plaintiff can pursue his state-law claims in state court. See Granite State Outdoor
Advertising, Inc. v. Cobb Cnty., Ga., 193 F. App’x. 900, 907 (11th Cir. 2006), cited in
Dixon v. King & Prince Seafood Corporation , 2017 WL 68628 at * 5 (S.D. Ga. Jan. 6,
2017); Jordan v. Mosley , 2007 WL 3102165 at *2 (S.D. Ga Oct. 22, 2007).
6