J. RANDAL HALL, UNITED STATES DISTRICT JUDGE.
In this action, Plaintiff Frederick Gibbons asserts claims against the Board of Regents of the University System of Georgia and seven named officers of the Georgia Regents University ("GRU") Police Bureau, among others unnamed, for deprivation of his First, Fourth, Fifth, Thirteenth, and Fourteenth Amendment rights, as well as violations of various state laws, when Officer Wesley Martin tased him five times during a traffic stop for an alleged tag violation. In lieu of answering Mr. Gibbons' Amended Complaint (Doc. 40), Defendants move for partial dismissal on multiple grounds, including various immunities, failure to comply with the procedural requirements of the Georgia Tort Claims Act ("GTCA"), and failure to state claims upon which the Court can grant relief. For the reasons stated herein, the Court
Mr. Gibbons, an African-American male, owns and operates two small businesses in Augusta, Georgia — a used car dealership and the café-lounge Soultry Sounds. (Am. Compl. ¶¶ 6, 20, 22, 49.) The instant suit arises out of two incidents with the GRU Police Bureau. The Court summarizes each in turn.
In the early hours of September 23, 2010, Mr. Gibbons closed down Soultry Sounds, collected the night's receipts, and left downtown Augusta in a vehicle with a Dollar Down Auto Sales ("Dollar Down") dealer tag to drive to his house in southern
Four days later, on September 27, 2010, Mr. Gibbons filed an internal affairs complaint against Officers Martin, Skinner, and Bennett about being stopped for a valid dealer tag. (Id. ¶¶ 37, 38.) William McBride, Chief of Police for the GRU Police Bureau and Director of Public Safety at GRU, appointed Kymyatta Turner, a Police Operations Specialist ("POS"), to conduct an investigation into the September 23, 2010 incident. (Id. ¶¶ 8, 14, 39.) According to Mr. Gibbons, POS Turner had no prior training or experience in internal affairs investigations. (Id. ¶ 40.) POS Turner's investigation concluded that Officer Martin "did not break the law, violate any policies of correct police conduct, or otherwise breach any duties to Gibbons in his acts, or failures to act, as to Gibbons." (Id. ¶ 43.) POS Turner passed on her findings to Chief McBride, and Chief McBride took no action to sanction or punish Officer Martin for his conduct during the September 2010 stop. (Id. ¶¶ 44, 45.)
On December 1, 2010, the Augusta-Richmond County Solicitor General dismissed the citation issued to Mr. Gibbons as a result of the September 2010 stop. (Id. ¶ 46.)
In the early hours of March 1, 2012, Mr. Gibbons closed down Soultry Sounds, collected the night's receipts and cash, and left downtown Augusta to drive home in a vehicle with a dealer tag listing Soultry Sounds. (Id. ¶¶ 48, 50.) While driving on Wrightsboro Road at around 3:00 AM past the Medical College of Georgia, Officer Martin stopped Mr. Gibbons because "[he] saw the paper dealer tag." (Id. ¶¶ 51-53, 64.) Officer Martin directed Mr. Gibbons to turn onto a dark side road. (Id. ¶ 64.) Once Officer Martin stepped out of his patrol car, Mr. Gibbons recognized him. (Id. ¶¶ 65, 66.) As Officer Martin approached his car, Mr. Gibbons rolled down his window "a couple inches," asked if they could proceed to a well-lit convenience store nearby, and upon Officer Martin's refusal, called 911 to request assistance "because he had been pulled over [for] a paper dealer tag" and "had trouble with [Officer Martin] before." (Id. ¶¶ 68-70.) Officer Martin saw Mr. Gibbons through the window, recognized him from the September 2010 stop, and heard him requesting emergency assistance. (Id. ¶¶ 67, 71.) Officer Martin began to yell, repeatedly demanding that Mr. Gibbons get out of the car and open the door. (Id. ¶¶ 72, 73.) Officer Martin then announced Mr. Gibbons
The second internal investigation into Officer Martin's conduct, again carried out by POS Turner, and Mr. Gibbons' subsequent criminal trial on the obstruction charge revealed that Officer Martin lied on an official form about Mr. Gibbons' alleged failure to engage him in dialogue during the March 2012 stop. (Id. ¶ 107.) According to Mr. Gibbons, Officer Martin also "perjured himself while trying to justify his stop by telling the jury Gibbons had no paper tag at all." (Id. ¶ 136.) Officer Martin further explained "that he pulled the trigger of the taser the first time because Mr. Gibbons was non-compliant, and the second time was to frighten Mr. Gibbons into rolling the window down." (Id. ¶ 104.) This explanation is consistent with the fact that Officer Martin did not identify any safety threats or concerns in his police report following the incident. (Id. ¶ 80.) At the same time, GRU Police Bureau policy forbids using a taser to coerce. (Id. ¶ 105.) Officer Martin contended that the final three pulls of the taser trigger "were inadvertent and caused by his hand being stuck in the window." (Id. ¶ 109.) Mr. Gibbons further alleges that another officer, Brian Jackson, likewise perjured himself when he told the jury that Mr. Gibbons "had shot Martin the bird right before the 2012 traffic stop" and had no tag on his car. (Id. ¶¶ 139, 140.)
POS Turner again found nothing wrong with Officer Martin's actions and Chief McBride "ratified Turner's finding about Martin not committing any policy violations and his triple inadvertent trigger pulls." (Id. ¶¶ 108, 118.)
On July 11, 2013, a Richmond County Superior Court jury acquitted Mr. Gibbons' of obstruction. (Id. ¶ 135.)
On February 28, 2014 — only two days prior to the expiration of the statute of limitations on claims arising out the March 2012 arrest — Mr. Gibbons filed this § 1983 action against Defendants. In lieu of answering Mr. Gibbons' 31-page, 272-paragraph Complaint, Defendants moved on July 3, 2014 for a more definite statement pursuant to Federal Rule of Civil Procedure 12(e), or in the alternative for partial dismissal. (Doc. 12.) In that motion, Defendants identified a laundry list of pleading deficiencies, including that each of Mr. Gibbons' thirteen claims fully incorporated every paragraph that preceded it, and some counts in fact double incorporated the preceding facts and other claims; Mr. Gibbons referred to Defendants collectively, and certain individual Defendants were referenced only in the paragraphs purporting to set forth the underlying facts; and Mr. Gibbons did not consistently designate the constitutional or statutory source of his claims, or if designated, he did not clarify which Defendants were named under that claim. (Doc. 38 at 6-7.) Shortly thereafter, Defendants sought, and the United States Magistrate Judge granted, a stay of
Mr. Gibbons and Defendants then agreed to extensions of the briefing schedule for Defendants' Rule 12(e) motion. (Docs. 18, 22.) During the course of briefing, Mr. Gibbons additionally filed a "Motion to Address Conflict of Interests" (Doc. 23), in which he urged that "Defendants should either have different attorneys or should waive their rights to assert their individual and contrary defenses on the record" (Doc. 23-1 at 6). He also filed an objection to the Magistrate Judge's order granting the stay of discovery even though he failed to oppose that motion at the appropriate time. (Doc. 34.) All these motions finally ripened for the Court's consideration on September 30, 2014. Shortly thereafter, Mr. Gibbons filed yet another motion and brief: a preemptive Motion for Leave to Amend, focusing on his supervisory liability claims, in the event the Court granted Defendants' alternative Partial Motion to Dismiss. (Doc. 36.) He also moved for a hearing on all the aforementioned pending matters. (Doc. 37.)
Oh October 27, 2014, the Court granted Defendants' 12(e) motion and required Mr. Gibbons to re-plead his case with explicit instructions to clearly specify within each count (1) one source of law and/or one legal theory upon which he asserts liability; (2) each defendant against whom he asserts liability on that theory; and (3) the factual allegations that form the basis of each claim against each defendant. (Doc. 38.) Finding that it did not have a well-pleaded complaint before it from which discovery could proceed, See Carter v. DeKalb Cnty., Ga., 521 Fed.Appx. 725, 729 (11th Cir.2013), the Court overruled Mr. Gibbons' objection to the Magistrate Judge's imposition of the stay. (Doc. 38.) The Court similarly found Mr. Gibbons' "Motion to Address Conflict of Interests," which the Court construed as a disqualification motion, to be wholly conjectural and, accordingly, premature. (Doc. 39.)
After Mr. Gibbons filed his Amended Complaint on November 10, 2014 — slimmed to 27 pages and 183 paragraphs — Defendants renewed their partial motion to dismiss. (Doc. 42.) The motion is ready for disposition and, for the reasons explained below, is due to be granted in part.
A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure may be either a "facial" or "factual" attack. Morrison v. Amway Corp., 323 F.3d 920, 924-25 n. 5 (11th Cir.2003). Defendants' motions, as they relate to immunity, are facial attacks on the Complaint because the Court's resolution of the immunity question does not depend on adjudicating the merits of the case. Haven v. Bd. of Trs. of Three Rivers Reg'l Library Sys., 69 F.Supp.3d 1359, 1363 (S.D.Ga.2014) ("In the Eleventh Circuit, the defense of sovereign immunity is not merely a defense on the merits. An assertion of Eleventh Amendment sovereign immunity essentially challenges a court's subject matter jurisdiction.") (citations and internal quotation marks omitted); Johnson v. Georgia, No. 1:13-CV-3155-WSD, 2014 WL 1406415, at *2 (N.D.Ga. Apr. 9, 2014) (treating the state's Rule 12(b)(1) motion to dismiss the plaintiff's § 1983 and state law claims on immunity grounds as a facial attack in the absence of citations to extrinsic evidence by the state). In a facial attack on subject matter jurisdiction, the Complaint's allegations are deemed presumptively truthful, and the "court is required merely to look and see if the plaintiff has sufficiently alleged a
Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief" to give the defendant fair notice of both the claim and the supporting grounds. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). To survive a defendant's Rule 12(b)(6) motion to dismiss, therefore, a plaintiff's complaint must include enough "factual allegations to raise a right to relief above the speculative level," and those facts must "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955. Although a complaint attacked by a Rule 12(b)(6) motion need not be buttressed by detailed factual allegations, the plaintiff's pleading obligation "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555, 127 S.Ct. 1955. The Rule 8 pleading standard "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 556 U.S. at 555, 127 S.Ct. 1955).
At the same time, a complaint should not be dismissed for failure to state a claim "unless it appears beyond a doubt that the plaintiff can prove no set of circumstances that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see also Kabir v. Statebridge Co., No. 1:11-CV-2747-WSD, 2011 WL 4500050, at *2 (N.D.Ga. Sept. 27, 2011) (citing Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir.1993)). At this stage, the Court must accept as true all facts alleged in the complaint and construe all reasonable inferences in the light most favorable to the plaintiff. Hoffman-Pugh v. Ramsey, 312 F.3d 1222, 1225 (11th Cir.2002).
"Qualified immunity offers complete protection for government officials sued in their individual capacities if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Grider v. City of Auburn, Ala., 618 F.3d 1240, 1254 (11th Cir.2010) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) and Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir.2002)) (alteration and internal quotation marks omitted). "Qualified immunity from suit is intended to allow government officials to carry out their discretionary duties without the fear of personal liability or harassing litigation, protecting from suit all but the plainly incompetent or one who is knowingly violating the federal law." Id. (citation and internal quotation marks omitted). In other words, "[o]fficials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines." Robinson v. Payton, 791 F.3d 824, 829 (8th Cir.2015) (citing Davis v. Hall, 375 F.3d 703, 712 (8th Cir.2004)).
To receive qualified immunity, the government official must first prove that he was acting within his discretionary authority. Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir.2003)(citing Vinyard, 311 F.3d at 1346). "Once the defendants establish that they were acting within their discretionary authority, the burden shifts to the plaintiff to demonstrate that qualified immunity is not appropriate." Gray ex rel. Alexander v. Bostic, 458 F.3d 1295,
In suits pursued under 42 U.S.C. § 1983, "the qualified immunity inquiry and the Rule 12(b)(6) standard become intertwined." GJR Invs., Inc. v. Cnty. of Escambia, Fla., 132 F.3d 1359, 1366 (11th Cir.1998), overruled on other grounds as recognized in Randall v. Scott, 610 F.3d 701, 709 (11th Cir.2010); Wooten v. Campbell, 49 F.3d 696, 699 (11th Cir. 1995) (accord). In order to protect public officials from meritless claims, the complaint must contain "specific, non-conclusory allegations of fact that will enable the district court to determine that those facts, if proved, will overcome the defense of qualified immunity." Dalrymple v. Reno, 334 F.3d 991, 996 (11th Cir.2003); see also Randall, 610 F.3d at 709-10 ("Pleadings for § 1983 cases involving defendants who are able to assert qualified immunity as a defense shall now be held to comply with the standards described in Iqbal. A district court considering a motion to dismiss shall begin by identifying conclusory allegations that are not entitled to an assumption of truth — legal conclusions must be supported by factual allegations."); Staco v. Miami-Dade Cnty., 536 F.Supp.2d 1301, 1304 (S.D.Fla.2008) ("[A] claim can be dismissed where a plaintiff pleads facts or makes admissions that demonstrate that a defense is applicable on the face of the pleadings.")(citing Marsh v. Butler Cnty., Ala., 268 F.3d 1014, 1022 (11th Cir.2001)). Thus, "[i]f a defendant asserts a qualified immunity defense in a Rule 12(b)(6) motion to dismiss, the Court should grant qualified immunity if the plaintiff's complaint fails to allege a violation of a clearly established constitutional or statutory right." Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1300 (11th Cir.2007) (citing Williams v. Ala. State Univ., 102 F.3d 1179, 1182 (11th Cir.1997) (per curiam)).
Mr. Gibbons has alleged virtually every possible variation of a § 1983 claim, as well as numerous state law claims, against eight named Defendants. At the outset, for the sake of clarity, the Court outlines what it understands those claims to be.
(Defs.' Br., Doc. 42-1, at 3 n.4, 23-24.) Utilizing the motion to dismiss standards articulated in Part II, supra, the Court now addresses the parties' specific arguments in logical fashion.
"As a general matter, fictitious-party pleading is not permitted in federal court." Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir.2010); see also Fitzpatrick v. Ga. Dep't of Corr., No. CV 612-022, 2012 WL 5207474, at *8 (S.D.Ga. Sept. 12, 2012), R & R adopted as modified, No. CV 612-022, 2012 WL 5207472 (S.D.Ga. Oct. 22, 2012). A limited exception to this rule exists "when the plaintiff's description of the defendant is so specific as to be `at the very worst, surplusage,'" and thus discovery would uncover the unnamed defendant's identity. Richardson, 598 F.3d at 738 (quoting Dean v. Barber, 951 F.2d 1210, 1215-16 (11th Cir.1992)); Daleo v. Polk Cnty. Sheriff, No. 8:11-CV-2521-T-30 TBM, 2012 WL 1805501, at *4-5 (M.D.Fla. May 17, 2012) (citing Dean, 951 F.2d at 1215-16).
In this case, Mr. Gibbons does not describe John Doe or Jane Doe with any specificity. In some instances, he merely states that John Doe or Jane Doe is a `supervisor.` (See id. ¶¶ 56, 63, 92, 93, 94, 101, 116, 119, 122.) In the caption, he identifies John Doe and Jane Doe as `officers.` (See Am. Compl. at 2.) In other paragraphs of the Amended Complaint, John Doe or Jane Doe were delegated supervisory authority (id. ¶ 57), `caused [Mr. Gibbons'] obstruction charge` (id. ¶ 130), `conspired to cause the malicious prosecution` (id. ¶ 131), conspired with other officers (id. ¶ 146), were aware of certain facts and `engaged in conspiratorial activity` (id. ¶ 150), and `caused a criminal prosecution` (id. ¶ 178). These bare descriptions and conclusory allegations `do[ ] not equate to the real possibility that these unknown individuals' identities will be revealed` during discovery, and the Court will not enable a fishing expedition on account of Mr. Gibbons' use of placeholders. See Fitzpatrick, 2012 WL 5207474, at *8.
In the very last of forty-four footnotes, which is wholly unrelated to the appended text, Mr. Gibbons responds that "[n]ew Defendants can be brought in at least until the two year statute of limitations has passed, so if new evidence or discovery reveals that an unnamed Defendant participated in the malicious prosecution of Gibbons in 2013, he or she can still be added as a party." (Pl.'s Resp., Doc. 44, at 25 n.44.) Mr. Gibbons' argument is unresponsive to the Eleventh Circuit's clear standards for fictitious-party pleading.
Defendants argue that the Board of Regents and any of its agents sued in their official capacities are entitled to immunity under the Eleventh Amendment from claims for monetary damages and otherwise are not "persons" for purposes of § 1983. (Defs.' Br. at 3-5.) Mr. Gibbons failed to respond to Defendants' clearly identified argument on this issue, which indicates that he does not oppose dismissal on these grounds. See LR 7.5, SDGa.
Indeed, in this case, Mr. Gibbons' § 1983 claims against Defendants in their official capacities are barred by the Eleventh Amendment. The Eleventh Amendment bars suit against a state brought by both citizens of another state and the state's own citizens. McClendon v. Ga. Dep't of Cmty. Health, 261 F.3d 1252, 1256 (11th Cir.2001). State agencies, like the Board of Regents of the University System of Georgia, share this Eleventh Amendment immunity. See Fouche v. Jekyll Island-State Park Auth., 713 F.2d 1518, 1520-23 (11th Cir.1983); Bd. of Regents of Univ. Sys. of Ga. v. Barnes, 322 Ga.App. 47, 743 S.E.2d 609, 611 (2013). By extension, the Eleventh Amendment also bars § 1983 lawsuits against state officials in their official capacities, because in such cases, the state is considered to be the real party in interest. Cross v. State of Ala., 49 F.3d 1490, 1503 (11th Cir.1995). A defendant need not be labeled a "state officer" or "state official" to receive Eleventh Amendment immunity, but instead need only be acting as an "arm of the State," which includes the state's agents and instrumentalities. Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir.2003) (citing Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429-30, 117 S.Ct. 900, 137 L.Ed.2d 55 (1997)). There is no dispute that Chief McBride, the Officer Defendants (Wesley Martin, Zachary Skinner, and Brian Jackson), the Supervisor Defendants (Ernest Black, Jr. and Eugene Maxwell), and POS Turner, in their official roles as members of the GRU Police Bureau, constitute "state officers" or "state agents" entitled to Eleventh Amendment protection.
Moreover, in order to succeed on a § 1983 claim, "a plaintiff must show that he or she was deprived of a federal right by a person acting under color of state law." Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir.2001) (emphasis added). In Will v. Mich. Dep't of State Police, 491 U.S. 58, 70-71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), the Supreme Court held that neither a state nor its officials acting in their official capacities are "persons" under § 1933. Therefore, Mr. Gibbons cannot sue Chief McBride, the Officer Defendants, the Supervisors Defendants, or POS Turner in their official capacities insofar as he seeks damages, and those claims are due to be
The GTCA provides for a limited waiver of the State's sovereign immunity. O.C.G.A. § 50-21-23(b) ("The state waives its sovereign immunity only to the extent and in the manner provided in this article...."); see also O.C.G.A. § 50-21-21(a)
Id.The procedural components of the GTCA, like its other terms, are strictly construed. Green v. Cent. State Hosp., 275 Ga.App. 569, 621 S.E.2d 491, 494 (2005) (citing Curry v. Ga. Dep't of Corr., 232 Ga.App. 703, 503 S.E.2d 597, 598 (1998)).
In this case, Defendants contend Mr. Gibbons did not meet the second requirement: the director of the Risk Management Division of the Department of Administrative Services has not been served at all. (Defs.' Br. at 10 (citing Docs. 7, 8).) Mr. Gibbons' failure to respond to Defendants' clearly identified argument on this point again indicates that he does not oppose dismissal on these grounds.
Failure to serve the director of the Department of Administrative Services, Risk Management Division precludes compliance with the condition precedent to waiver of sovereign immunity and renders void Mr. Gibbons' action such that the statute of limitations is not tolled.
The statute of limitations expired on Mr. Gibbons' state law claims on March 1, 2014 (Claims X — XIV based on Mr. Gibbons' March 1, 2012 arrest) and July 11, 2015 (Claim XV based on Mr. Gibbons July 11, 2013 acquittal). See O.C.G.A. § 50-21-27(c). When service is accomplished after the statute of limitation expires, as would be the case here, the timely-filed complaint tolls the statute only upon a showing that the plaintiff acted reasonably and diligently in effecting proper service as quickly as possible. Curry v. Georgia Dep't of Corr., 232 Ga.App. 703, 503 S.E.2d 597, 598 (1998) (citing Patterson v. Johnson, 226 Ga.App. 396, 486 S.E.2d 660, 661 (1997)). Mr. Gibbons became aware of the service defect on July 3, 2014 when Defendants filed their first motion to dismiss (Doc. 12 at 1516) and received renewed notice on December 1, 2014 (Defs.' Br. at 10). Mr. Gibbons' failure to effect service on the director of the Department of Administrative Services, Risk Management Division, for over a year after filing the complaint, knowing of Defendants' attack on the sufficiency of service of process, precludes him from establishing lack of fault for the delay. See Curry, 503 S.E.2d at 598-99. Thus, without a basis to toll the statute of limitations on his state law claims, granting Mr. Gibbons leave to cure service of process and re-file his state law claims would be futile.
All Defendants except Officer Martin seek dismissal of Counts I through V for failure to state a claim upon which relief can be granted.
To narrow down this task, the Court first
Count III is based on Mr. Gibbons' assertion that Officer Martin did not have probable cause to make the challenged traffic stop or the arrest for obstruction, and accordingly could not use any degree of force. (Am.Compl. ¶ 100.) "Under this Circuit's law[, however,] ... a claim that any force in an illegal stop or arrest is excessive is subsumed in the illegal stop or arrest claim and is not a discrete excessive force claim." Bashir v. Rockdale Cnty., 445 F.3d 1323, 1331-32 (11th Cir.2006) (emphasis and citation omitted). Accordingly, Claim III fails as a matter of law.
That leaves Count I, as well as Counts IV and V, which Mr. Gibbons frames in the alternative to Count III if the Court later finds that Officer Martin made a lawful arrest for either misdemeanor or felony obstruction. As the Court did above, stripping away Mr. Gibbons' conclusory allegations, the remaining counts appear to hinge only on the following:
Mr. Gibbons does not allege that Chief McBride, Supervisors Black and Maxwell, Officer Skinner, and POS Turner personally participated in or otherwise ordered the unlawful stop, false arrest, or use of excessive force in March 2012. Thus, from the allegations above and Mr. Gibbons' briefs, the Court understands Mr. Gibbons to claim that these Defendants did nothing by way of training or supervision to ensure that Officer Martin no longer (1) initiated stops solely on the basis of a paper tag or (2) used excessive force — specifically, "excessive tasing" — in carrying out stops or arrests. Because Mr. Gibbons' Fourth Amendment claims are asserted against these Defendants in their capacity as supervisors, the Court will assume — without deciding — that Officer Martin violated Mr. Gibbons' Fourth Amendment rights. See Dalrymple, 334 F.3d at 995 (articulating the methodology for resolving claims of supervisory liability); McDaniel v. Yearwood, No. 2:11-CV-00165-RWS, 2012 WL 526078, at *15 (N.D.Ga. Feb. 16, 2012). "The question then becomes whether [these Defendants'] `supervisory actions' caused the alleged deprivation of those rights." McDaniel, 2012 WL 526078, at *15 (citing Gonzalez, 325 F.3d at 1234).
It is well-established that supervisors are not subject to § 1983 liability under theories of respondeat superior or vicarious liability. Keith v. DeKalb Cnty., Ga., 749 F.3d 1034, 1047 (11th Cir.2014) (citing Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir.2003)). Instead, supervisors can violate federal law and be held individually liable for the conduct of their subordinates only "when the supervisor personally participates in the alleged constitutional violation or when there is a causal connection between the actions of the supervising official and the alleged constitutional deprivation." Id. (quoting Cottone, 326 F.3d at 1360) (internal quotation marks omitted). A plaintiff can establish a causal connection by alleging that: (1) a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he fails to do so; (2) a supervisor's custom or policy results in deliberate indifference to constitutional rights; or (3) facts support an inference that the supervisor directed subordinates to act unlawfully or knew that subordinates would act unlawfully and failed to stop them from doing so. Williams v. Santana, 340 Fed. Appx. 614, 617 (11th Cir.2009) (citing Mathews v. Crosby, 480 F.3d 1265, 1270 (11th Cir.2007)); see also Easley v. Macon Police Dep't, No. 5:12-CV-148 MTT, 2013 WL 5592514, at *2 (M.D.Ga. Oct. 10, 2013). "The deprivations that constitute widespread abuse sufficient to notify the supervising official must be obvious, flagrant, rampant and of continued duration, rather than isolated occurrences." Santana, 340 Fed.Appx. at 617 (quoting Brown v. Crawford, 906 F.2d 667, 671 (11th Cir.1990)). "In short, the standard by which a supervisor
Mr. Gibbons' claims for relief in Counts I and Counts IV/V — that Chief McBride, Supervisors Black and Maxwell, Officer Skinner, and POS Turner failed to adequately train or supervise Officer Martin — implicates a different, albeit very similar, rule: "under § 1983, a supervisor can be held liable for failing to train his or her employees only where the failure to train amounts to deliberate indifference to the rights of persons with whom the officers come into contact." Keith, 749 F.3d at 1052 (alteration, citation, and internal quotation marks omitted). "Failure to train can amount to deliberate indifference when the need for more or different training is obvious, ... such as when there exists a history of abuse by subordinates that has put the supervisor on notice of the need for corrective measures, ... and when the failure to train is likely to result in the violation of a constitutional right." McDaniel, 2012 WL 526078, at *16 (quoting Belcher v. City of Foley, 30 F.3d 1390, 1397-98 (11th Cir.1994)). "Thus, a plaintiff alleging a constitutional violation premised on a failure to train must demonstrate that the supervisor had `actual or constructive notice that a particular omission in their training program causes [his or her] employees to violate citizens' constitutional rights,' and that armed with that knowledge the supervisor chose to retain that training program." Keith, 749 F.3d at 1052 (quoting Connick v. Thompson, 563 U.S. 51, 131 S.Ct. 1350, 1360, 179 L.Ed.2d 417 (2011)).
As a preliminary matter, the Court
Simply, Mr. Gibbons "alleges nothing about the significance of [these Defendants'] titles, their individual roles ..., their personal interactions or familiarity with [Officer Martin], their length of service, their management policies, or any other characteristics that would bear on whether they knew about [or] were deliberately indifferent to [Officer Martin's] conduct and the risk he posed." See Franklin, 738 F.3d at 1251-52. Indeed, the manner in which Mr. Gibbons first identifies these individuals as "supervisors" reflects that he simply does not know any details about their responsibilities. (See Am. Compl. ¶ 57 ("Defendants ... Black[ ] and Maxwell, based on position and rank ... are plausibly supervisors ... [,] even though it is also plausible that ... they did not have that responsibility.... Defendant Skinner is plausibly a direct
Unlike Supervisors Black and Maxwell and Officer Skinner, Mr. Gibbons' does not allege outright that POS Turner was a supervisor. Rather, Mr. Gibbons asserts that Chief McBride appointed POS Turner to undertake the internal affairs investigation of Officer Martin's conduct in 2010 and 2012, POS Turner had no training respective to internal investigations, and that Chief McBride previously selected a parking attendant to carry out such work. (Am. Compl. ¶¶ 39-41, 108 111.) The only other relevant, non-conclusory allegations are that POS Turner passed on her findings to Chief McBride and Chief McBride ratified those findings. (Id. ¶¶ 44, 114, 118.) Thus, based on the fact that POS Turner investigated Officer Martin, Mr. Gibbons contends POS Turner "was deliberately indifferent to the need to train Martin, or cause Martin to be trained by the appropriate supervisor, that a paper dealer tag, without more; does not authorize a traffic stop" and "proximately caused due to deliberate indifference the challenged excessive force by failing to train Martin how to appropriately use the taser...." (Id. ¶¶ 62, 119.)
The Court likewise finds these allegations insufficient to state a claim. Not only does Mr. Gibbons fail to allege that POS Turner is a supervisor of Officer Martin, there are no other facts from which the Court could infer that POS Turner is in the GRU Police Bureau chain of command or had any authority to institute corrective measures or make recommendations with respect to Officer Martin's behavior beyond passively reporting the results of her investigation to Chief McBride. The claims for supervisory liability against POS Turner, therefore, are also
The Court now turns to the last man standing, Chief McBride, and whether the Amended Complaint sufficiently alleges a causal connection between Chief McBride's failure to supervise or train and the purported constitutional violations carried out by Officer Martin in March 2012. Viewing the facts in the light most favorable to Mr. Gibbons — as the Court must do — the Court examines the Amended Complaint to determine what allegations, if any, address Chief McBride's (1) knowledge of Officer Martin's allegedly unlawful practices at the point of his misconduct in March 2012 and (2) actions that raise an inference of indifference.
With respect to Mr. Gibbons' failure to train claim surrounding the traffic stop, the Amended Complaint reflects that Officer Martin pulled Mr. Gibbons over twice, solely on account of his paper dealer tag, over the course of approximately eighteen months. Chief McBride knew that Officer Martin had done so as a result of an investigation into the 2010 stop, carried out by POS Turner at the direction of Chief McBride and ultimately approved by Chief McBride. Officer Martin also explained that GRU officers regularly pulled over cars solely because they had a paper tag. Chief McBride then purposefully selected
Similarly, with respect Mr. Gibbons' failure to train claim surrounding Officer Martin's use of excessive force, the Amended Complaint reflects that Officer Martin was involved in two incidents of force during traffic stops over the course of approximately eighteen months: Mr. Gibbons was cuffed too tightly by Officers Martin and Skinner in September 2010 and Officer Martin tased Mr. Gibbons five times in March 2012. Chief McBride knew the September 2010 stop resulted in severe cuffing because of the previously-described internal affairs complaint filed by Mr. Gibbons and investigation carried out at Chief McBride's direction. Mr. Gibbons further alleges that before March 2012 Officer Martin had "numerous encounters with citizens revealing a tendency to overreact ... that Martin caused to escalate to the point where he unlawfully justified his use of force," and he used his taser with alarmingly "high frequency," statistics about which were reported (Doc. 19 at 11 n.8). As in 2010, Chief McBride purposefully selected an incompetent investigator in 2012, whose results Chief McBride ratified, resulting in zero discipline.
Mr. Gibbons has not adequately alleged that there was a history of widespread prior abuse, as defined in Brown, 906 F.2d at 671, that put Chief McBride on notice of the need for improved training or supervision. The question is, therefore, whether Chief McBride's failure to train or supervise Officer Martin when faced with (1) a significant, but single concrete complaint about an unlawful stop carried out by Officer Martin during which Mr. Gibbons was cuffed to the point of bleeding; (2) testimony that suggests GRU Police Bureau officers had a "regular" practice of stopping citizens for paper tags during the relevant time period;
The Court concludes that Mr. Gibbons' allegations are narrowly sufficient to survive a motion to dismiss. This is the rare case in which the same conduct recurred between the same citizen and the same law enforcement officer, which was investigated by the same individual at the direction of the same superior, and this recurrence allegedly resulted in the violation of constitutional rights. Accepting the foregoing allegations as true, a reasonable jury could infer that Chief McBride — as the head of the department, initiator of the investigation into Mr. Gibbons' specific internal complaint in September 2010, and ultimate decision maker with respect to approval of the resulting investigative report and the department's response thereto
These findings, however, do not end the Court's inquiry, as Chief McBride argues that he is entitled to qualified immunity. Although Chief McBride's failure to train or supervise, as alleged, could constitute a constitutional violation, the Court must still evaluate (1) whether his challenged acts or omissions were within his discretionary authority and (2) whether such a violation was clearly established at the time. Maggio v. Sipple, 211 F.3d 1346, 1350 (11th Cir.2000).
"A government official proves that he acted within the purview of his discretionary authority by showing `objective circumstances
Here, Mr. Gibbons specifically alleges that Chief McBride was acting under color of state law in his capacity as the Chief of Police for the GRU Police Bureau and Director of Public Safety at all times relevant to the claims asserted against him. (See Am. Compl. ¶ 7.) As Defendants point out, "[s]upervising a subordinate officer, assigning an investigator to investigate a citizen complaint, investigating a citizen complaint ..., implementing a policy..., and training officers ... are all job related functions" that Chief McBride carried out only as a result of his employment with and authority within the GRU Police Bureau. (Defs.' Reply, Doc. 48, at 7-8.) Accordingly, the first prong of the qualified immunity inquiry is satisfied. See, e.g., Daniels v. City of Hartford, Ala., 645 F.Supp.2d 1036, 1057 (M.D.Ala.2009) (noting "courts have uniformly held that supervision of a jail and training of corrections of officers [sic] is an activity within the discretionary authority" of sheriffs); Btesh v. City of Maitland, Fla., No. 6:10-CV-71-ORL-19DAB, 2011 WL 3269647, at *37 n. 34 (M.D.Fla.2011) (finding police chief's "alleged failure to train and supervise police officers is a matter within his discretionary authority"), aff'd sub nom., 471 Fed.Appx. 883 (11th Cir.2012); Herrick v. Carroll Cnty., No. 1:09-CV-0161-JEC, 2009 WL 3094843, at *9 (N.D.Ga. 2009) ("There is no question that Sheriff Langley was acting within his discretionary authority in training and supervising his subordinates....").
The Supreme Court has emphasized that "determining whether a constitutional right was clearly established `must be undertaken in light of the specific context of the case, not as a broad general proposition.'" Vinyard, 311 F.3d at 1349 (quoting Saucier, 533 U.S. at 201, 121 S.Ct. 2151). The relevant, dispositive inquiry is "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted," Saucier, 533 U.S. at 202, 121 S.Ct. 2151 (emphasis added), and "whether the state of the law ... gave [the officer] `fair warning' that his conduct deprived his victim of a constitutional right," Hope v. Pelzer, 536 U.S. 730, 740, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). See also Oliver v. Fiorino, 586 F.3d 898, 907 (11th Cir.2009) (framing the "clearly established" inquiry as whether it would be "sufficiently clear that a reasonable officer would understand that what he is doing violates [a Constitutional] right") (citations and internal quotation marks omitted). In most cases, fact-specific precedents are necessary to give an officer fair
"Furthermore, the [C]ourt cannot consider just any case law to decide if a right was clearly established. Only binding opinions from, the United States Supreme Court, the Eleventh Circuit Court of Appeals, and the highest court in the state where the action is filed, can serve as precedent, for this analysis." Merricks v. Adkisson, 785 F.3d 553, 559 (11th Cir. 2015) (citing McClish v. Nugent, 483 F.3d 1231, 1237 (11th Cir.2007)); see also Marsh v. Butler Cnty., Ala., 268 F.3d 1014, 1032 n. 10 (11th Cir.2001) (en banc) (citing Wilson v. Layne, 526 U.S. 603, 616-17, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)) (explaining that a "consensus ... of persuasive authority" from courts in other jurisdictions "would [not] be able to establish the law clearly"), abrogated on other grounds, Twombly, 550 U.S. 544, 127 S.Ct. 1955.
The salient question for this case, therefore, is whether the state of the law on March 1, 2012 gave Chief McBride fair warning that his conduct was unconstitutional. There is no question that at time of the incident at issue the law regarding supervisory liability was clearly established. Cottone, 326 F.3d at 1360; Belcher, 30 F.3d at 1397-98. But in order to meet his burden, Mr. Gibbons must point to some factually analogous case or other statement of positive law demonstrating that failure to train or supervise his officers in the challenged manners — (1) whether or when a paper tag may warrant a stop and (2) the use of a taser without warning on a suspect that is resisting arrest, albeit "passively" as alleged — violate the Fourth Amendment. See, e.g., Battiste v. Sheriff of Broward Cnty., 261 Fed.Appx. 199, 202-03 (11th Cir.2008) (finding, at the motion to dismiss stage, that the police chief was entitled to qualified immunity for failure to train because, "faced with past unjustified arrests by his department at public protests," he did not have fair notice that he must train "borrowed" law enforcement officers from other jurisdictions to arrest only upon probable cause) (emphasis added); Gray, 458 F.3d at 1309 (finding the sheriff's failure to provide specific training regarding the detention of students, in addition to general training regarding use of force during detention and arrest, was not clearly established for purposes of qualified immunity); Riley v. Newton, 94 F.3d 632, 637 (11th Cir.1996) (finding the sheriff was entitled to qualified immunity for failure to train where the plaintiffs failed to cite case law or a constitutional provision requiring the sheriff to provide training on how to use Army personnel and rejecting plaintiffs' argument that the City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989), general standard of liability in failure to train cases clearly established the right).
Mr. Gibbons further identifies a consensus of persuasive authority, including one case from a sister court within this circuit, United States v. Wright, No. 3:06-CR-447-MCR, 2006 WL 3483503, at *4 (N.D.Fla. Nov. 30, 2006), that indicates a reasonable officer could not have believed his actions were lawful under the circumstances presented here. (See Pl.'s Sur-Reply at 6 n.5 (listing cases).) See also United States v. Brown, No. CR 105-124, 2006 WL 717152, at *4-5 & n. 8 (S.D.Ga. Mar. 15, 2006) (finding deputy was justified in conducting a stop to investigate whether the defendant was operating his vehicle in conformance with Georgia's vehicle registration laws because his homemade cardboard tag, taped to the inside of the rear windshield, bore none of the required information and explaining that, although "[a]n officer's `mere hunch' that a driver and owner of a car with a drive-out tag might not be operating a car in compliance with the vehicle registration laws does not provide a particularized and objective basis for suspecting criminal activity," Bius "re-affirmed that an officer's suspicion about the appearance of a drive-out tag," the tag's visibility, or the absence of a tag could authorize an investigatory stop)(emphasis added) (citations omitted).
Defendants' sole response is that decisions issued by the Georgia Court of Appeals cannot clearly establish the law for purposes of qualified immunity under Marsh, 268 F.3d at 1032 n. 10. Indeed, the rule in this circuit limits the relevant universe of cases for qualified immunity purposes to binding precedent. Coffin v.
Exact factual identity with a previously decided case is not required so long as the unlawfulness of the conduct is apparent from the pre-existing law. Coffin, 642 F.3d at 1013 (citation omitted). Distilled from Prouse is the principal that a random stop of a motorist — in the absence of observations of traffic or equipment violations or suspicious activity — violates the Fourth Amendment. 440 U.S. at 650-51, 99 S.Ct. 1391. Clearly established law required Chief McBride to train his officers on this principle, which — if not followed or understood — would likely result in Fourth Amendment violations. Although these are general legal rules, they clearly apply to the facts alleged in the Amended Complaint. (See, e.g., Am. Compl. ¶¶ 50, 52, 54.) Murdock v. Cobb Cnty., Ga., No. 1:12-CV-01743-RWS, 2013 WL 2155465, at *9 (N.D.Ga. May 17, 2013), reconsideration denied, No. 1:12-CV-01743-RWS, 2013 WL 4501456 (N.D.Ga. Aug. 22, 2013). Accordingly, the Court cannot rule that Chief McBride is entitled to qualified immunity from Mr. Gibbons' § 1983 failure to train or supervise claim arising out of Count I. Defendants' motion to dismiss this claim, therefore, is
Second, in context of the supervisory claim arising out of Officer Martin's use of excessive force, the Eleventh Circuit has "previously noted that `generally no bright line exists for identifying when force is excessive.'" Jay, 579 Fed.Appx. at 951 (quoting Priester, 208 F.3d at 926). "Therefore, `unless a controlling and materially similar case declares the official's conduct unconstitutional, a defendant is usually entitled to qualified immunity.'" Id. (quoting Priester, 208 F.3d at 926). Mr. Gibbons, however, has not presented any argument in response to Chief McBride's claim that he is immune in his supervisory capacity (Defs.' Br. at 7 n.7, 23-24), nor has he cited any specific law which Chief McBride's inaction with respect to Officer Martin's alleged use of excessive force might have violated. Instead, Mr. Gibbons argues that because "Defendants' qualified immunity assertion is plead in the alternative and without any discussion supporting their position that the law was not clearly established, Plaintiff cannot be faulted, at least at this point, for offering a general response, and should be given an opportunity to respond to specific assertions that the law was not clear." (Pl.'s Resp. at 19-21, 21.) He further states that "Defendants have not responded to any of the case law Plaintiff has offered to demonstrate clearly established law, except for law concerning traffic stop, leaving excessive force not argued." (Pl.'s Sur-Reply at 3 n.2 (emphasis added).)
Mr. Gibbons has fundamentally confused the burdens at hand. It is his duty to come forward with argument that qualified immunity is not appropriate with respect to Officer Martin's taser use, which he has not done. Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1137 (11th Cir.2007) ("First, the plaintiff must establish that the defendant's conduct violated a statutory or constitutional right. Next, the plaintiff must show that the violation was clearly established.")(emphasis added) (citation and internal quotation marks omitted). Chief McBride, therefore, is entitled to qualified immunity from § 1983 liability for failure to train or supervise related to Counts IV/V, and Defendants' motion to dismiss this claim, therefore, is
In Count VI, Mr. Gibbons claims Officer Martin violated his rights under the First
To survive a motion to dismiss based on retaliation for exercising rights under the First Amendment, Mr. Gibbons must allege facts establishing (1) "his speech or act was constitutionally protected;" (2) he "suffered adverse conduct that would likely deter a person of ordinary firmness from engaging in such speech," and (3) "there is a causal connection between the retaliatory actions and the adverse effect on speech." Castle v. Appalachian Tech. Coll., 631 F.3d 1194, 1197 (11th Cir.2011); Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir.2005). Defendants argue that Mr. Gibbons does not state a claim for First Amendment retaliation because he "failed to sufficiently allege that he engaged in protected speech... or that there was a causal connection between any instance of speech and his arrest and [Officer] Martin's use of force." (Defs.' Br. at 21-22.) The Court thus addresses only prongs one and three of the prima facie case.
The First Amendment affords the broadest protection to political expression, but also to the general rights of speech and to petition for redress. Abella v. Simon, 522 Fed.Appx. 872, 874 (11th Cir.2013) (citing U.S. Const. amend. I; McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 346, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995); United Mine Workers of Am., Dist. 12 v. Ill. State Bar Ass'n, 389 U.S. 217, 222, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967)). It likewise "protects a significant amount of verbal criticism and challenge directed at police officers.... The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state." Skop, 485 F.3d at 1139 (quoting Houston v. Hill, 482 U.S. 451, 461-63, 107 S.Ct. 2502, 96 L.Ed.2d 398, (1987)). At bottom, Mr. Gibbons alleges he engaged in protected activity by reporting police misconduct. (See Am. Compl. ¶¶ 38, 124-26; see also Pl.'s Resp. at 11-13.)
Defendants respond that Mr. Gibbons "never alleges any factual specifics about the nature of the [internal affairs] complaint." (Defs.' Br. at 22.) This argument is unavailing, especially given the very complaint at issue is likely in Defendants' possession. Moreover, Defendants abandoned any challenge to the classification of Mr. Gibbons' emergency phone call as "protected speech" when they failed to address it in their reply brief. Thus, the Court finds that Mr. Gibbons has alleged sufficient facts as to the first prong to withstand the motion to dismiss. See Abella, 522 Fed.Appx. at 874 (finding the plaintiff alleged facts sufficient to establish three police officers unlawfully retaliated after he filed grievances against each of them and engaged in other protected activity); see also, e.g., Moral v. Hagen, No. 10-2595-KHV, 2011 WL 2746833, at *5 (D.Kan. July 14, 2011) (recognizing as sufficient the plaintiff's allegations that by obtaining an arrest warrant in retaliation for the filing of a complaint against an officer of the Kansas Bureau of Investigation with the internal affairs division, defendant violated her First Amendment rights to free speech and to petition the government); Doe v. Cnty. of San Mateo,
To establish a causal connection, Mr. Gibbons must allege that his protected conduct was a "motivating factor" behind Officer Martin's alleged misconduct. Smith v. Florida Dep't of Corr., 713 F.3d 1059, 1063 (11th Cir.2013); Smith v. Mosley, 532 F.3d 1270, 1278 (11th Cir. 2008). "Plaintiff must identify a sequence of events from which a retaliatory motive can be inferred, notwithstanding other non-retaliatory motives the defendant may harbor." Eisenberg v. City of Miami Beach, 1 F.Supp.3d 1327, 1344 (S.D.Fla. 2014) (citation and internal quotation marks omitted). To resolve the subjective motivation issue, courts rely on the burden-shifting formula set forth in Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Mosley, 532 F.3d at 1278. Under the Mt. Healthy formula,
Mosley, 532 F.3d at 1278(quoting Thaddeus-X v. Blatter, 175 F.3d 378, 399 (6th Cir.1999)).
In conjunction with the burden-shifting formula, courts also consider the temporal proximity between a plaintiff's exercise of free speech and the adverse effect in gauging a causal connection. See Bumpus v. Watts, 448 Fed.Appx. 3, 7 (11th Cir.2011) (finding the district court erred by prematurely dismissing inmate's First Amendment retaliation claim because inmate sufficiently alleged causation "given the short amount of time between his appeal of the disciplinary decision and the alleged retaliatory actions"); Akins v. Fulton Cnty., Ga., 420 F.3d 1293, 1305 (11th Cir.2005) (finding the "close temporal proximity" between a special meeting at which former employees in county's purchasing department complained to the commissioner of perceived irregularities in the county's bidding process and adverse employment actions taken against the same employees by their supervisor was sufficient to permit reasonable jury to conclude that incidents were causally connected); Lozman v. City of Riviera Beach, 39 F.Supp.3d 1392 (S.D.Fla.2014) (finding adequate circumstantial evidence of causation because there was "a very close temporal connection" between the timing of the plaintiff's expressive speech — public criticism of the integrity of various municipal officials and formal lawsuit — and the
The burden-shifting analysis, however, is not appropriate at the motion to dismiss phase. Johnson v. Conway, No. 1:13-CV-0524-RWS, 2013 WL 5493380, at *4 n. 3 (N.D.Ga. Sept. 30, 2013), reconsideration denied, No. 1:13-CV-0524-RWS, 2014 WL 1767710 (N.D.Ga. May 2, 2014); see also generally Mosley, 532 F.3d 1270 (decided on summary judgment); Lozman, 39 F.Supp.3d 1392 (same). "A determination as to whether a defendant would have taken the same action in the absence of the protected activity is premature when the parties have not conducted discovery." Eisenberg, 1 F.Supp.3d at 1344 (citing Conway, 2013 WL 5493380, at *4 n. 3). As a result, the Court addresses only whether Mr. Gibbons has met his burden in alleging his protected conduct was a motivating factor and not whether Officer Martin has would have taken the same actions absent Mr. Gibbons' protected conduct.
It is clear from the Amended Complaint that Mr. Gibbons alleges his 2012 arrest by Officer Martin the result of filing a complaint against Officer Martin in September 2010 and raising alarm about Officer Martin's subsequent stop in March 2012.
The Eleventh Circuit Court of Appeals has recognized in other retaliation contexts, however, that "if there [is] a significant time gap between the protected
The Court finds, at this stage, the allegations taken as a whole are sufficient to establish causation. Therefore, the Court
Although not readily decipherable from the allegations in Count VII, Mr. Gibbons appears to assert both a (1) standalone § 1983 claim for malicious prosecution against Officers Martin and Jackson, POS Turner and Chief McBride individually and (2) conspiracy to maliciously prosecute claim. (See Am. Compl. ¶¶ 131, 132, 138-141, 146 (framing the claim as against "[t]wo or more of the Defendants" and individuals' actions "as part of the conspiracy and plan"); Pl.'s Sur-Reply at 13 ("Assuming arguendo that the allegations of conspiracy — as opposed to malicious or wrongful prosecution itself — have not been sufficiently plead, Claims VII and VIII asserting malicious prosecution and wrongful prosecution have still been plausibly plead against each of [the] Defendants.").) The Court will address the conspiracy claim separately in Part III.D.4, infra.
The Eleventh Circuit has identified malicious prosecution as a violation of the Fourth Amendment and a viable constitutional tort cognizable under § 1983. Wood v. Kesler, 323 F.3d 872, 881 & n. 14 (11th Cir.2003) (citations omitted). "To establish a § 1983 malicious prosecution
Tracking the required elements of the common law tort of malicious prosecution, Mr. Gibbons alleges that Officer Martin arrested him for obstruction. (Am. Compl. ¶¶ 82.) Next he asserts that the March 2012 traffic stop, based solely on Mr. Gibbon's paper dealer tag, was not supported by probable cause. (See id. ¶¶ 52, 54.) He further alleges that "[t]here was no probable cause to arrest [him] for obstruction" because he merely requested "to drive to a nearby, well-lit convenience store" and "rolled down his window a couple inches, sufficient for conversing with [Officer] Martin and exchanging license and registration." (Id. ¶¶ 68, 69; see also id. ¶¶ 82-88.) Additionally, Mr. Gibbons contends Officer Martin acted intentionally and maliciously, as the arrest was in retaliation for Mr. Gibbons' 2010 internal affairs complaint and for "calling the Richmond County Police Department to complain" about the stop as it occurred. (Id. ¶¶ 124, 128.) Mr. Gibbons was acquitted of obstruction on July 11, 2013. (Id. ¶ 135.) Mr. Gibbons also complains that he "was required to hire counsel to defend himself" at great expense and "suffered mental anguish and distress as a result of being wrongfully prosecuted." (Id. ¶¶ 133, 134.) Second, assuming Mr. Gibbons' version of events at this juncture, he also has shown a Fourth Amendment constitutional violation for his seizure without arguable probable cause. Thus, the Court finds that Mr. Gibbons adequately states a claim for malicious prosecution against Officer Martin.
As to the other Defendants, Mr. Gibbons appears to contend they "continued" the prosecution against him by submitting false evidence and, as to Chief McBride, pursuing the charge even after acquiring knowledge that it was bogus. (See Pl.'s Resp. at 14.) Williams v. Miami-Dade Police Dep't, 297 Fed.Appx. 941, 947 (11th Cir.2008); Kjellsen v. Mills, 517 F.3d 1232, 1238 (11th Cir.2008); Spadaro v. City of Miramar, 855 F.Supp.2d 1317, 1342 (S.D.Fla.2012). Specifically, Mr. Gibbons alleges Officer Jackson lied about there being no tag whatsoever on Mr. Gibbons' car (Am.Compl. ¶¶ 140) and Mr. Gibbons "sho[oting] Martin the bird" immediately prior to the stop "knowing that the statement was false," (id. ¶ 39) thereby "causing the malicious prosecution" to proceed (see id. ¶¶ 130, 145). Although the Court has serious reservations about the causal link between Officer Jackson's alleged act — fabricating evidence about the initiation of the traffic stop — and the obstruction charge later going to trial, it nonetheless finds Mr. Gibbons has satisfied the common law elements of malicious prosecution as to Officer Jackson at this stage. See Spadaro, 855 F.Supp.2d at 1342 (S.D.Fla.2012) (finding the plaintiff's
The Amended Complaint, however, is bereft of factual allegations implicating Chief McBride and POS Turner. The sole allegation against POS Turner under Count VII is that her "findings ... covered Up Martin's policy Violations" and his lies. (Am.Compl. ¶ 142.) Elsewhere in the Amended Complaint, he contends repeatedly that. POS Turner was incompetent "and/or" with "actual evil motive, decided to help Martin cover up the purposefulness of his third, fourth, and fifth pull of the Laser trigger," not the propriety of the obstruction charge, (Id. ¶¶ 108, 111, 112.) Mr. Gibbons argues that "Turner's finding that Martin did nothing wrong in the 2012 incident ... gives rise to an inference that Turner agreed with Martin to maliciously prosecute Plaintiff by passing on to the prosecutor fabricated evidence under the guise of an investigatory finding." (Pl.'s Resp. at 14.) Notwithstanding that Mr. Gibbons injected this last "fact" — POS Turner's connection to or interaction with the prosecutor — into the argument without pleading it, incompetently carrying out an investigation does not, without more, give rise to the inference that POS Turner improperly influenced the decision to prosecute Mr. Gibbons for obstruction or acquired knowledge that the charge against Mr. Gibbons was inappropriate and failed to speak up. Simply put, there is no allegation in the Amended Complaint that would support a finding of malice.
Similarly, Mr. Gibbons alleges in Count VII that Chief McBride "reviewed without objection" POS Turner's findings, did not correct them, and then allowed her to testify about her findings. (Am. Compl. ¶¶ 114, 143, 144.) He argues that these acts "give[ ] rise to the inference that he informally agreed with Turner to maliciously prosecute Plaintiff." (Pl.'s Resp. at 14.) The Court comes to the same conclusion with Chief McBride as it did with POS Turner: in the absence of any allegations that Chief McBride discovered information that exculpated Mr. Gibbons and concealed it, Mr. Gibbons' inferences present far too great of a leap. Cf. Diaz-Martinez v. Miami-Dade Cnty., No. 07-20914-CIV, 2009 WL 2970471, at *14 (S.D.Fla. June 9, 2009) (alleging a supervisor personally participated in officers' fabrications by signing off on a fabricated report, which documented a subordinate officer's extensive post-arrest conversation with the plaintiff in English despite knowing that the plaintiff spoke little or no English), R & R adopted in part, No. 07-20914-CIV, 2009 WL 2970468 (S.D.Fla. Sept. 10, 2009).
Accordingly, Defendants' motion to dismiss this claim is
To establish a conspiracy claim under § 1983, a plaintiff must allege three elements: "(1) a violation of [his] federal rights; (2) an agreement among the Defendants to violate such a right; and (3) an actionable wrong." Hoelper v. Coats, No. 8:10-CV-01324, 2010 WL 4292310, at *5 (M.D.Fla. Oct. 27, 2010) (citing Geidel v. City of Bradenton Beach, 56 F.Supp.2d 1359, 1367 (M.D.Fla.1999)); see also Conway, 2013 WL 5493380, at *5 (citing Valentine v. Bush, No. 2:10-CV-0097-RWS, 2012 WL 27416, at *5 (N.D.Ga. Jan. 4, 2012)). Mere "conclusory, vague and general" allegations of conspiracy are not sufficient to survive a motion to dismiss; rather, "a defendant must be informed of the nature of the conspiracy which is alleged." Fullman v. Graddick, 739 F.2d 553, 557 (11th Cir.1984).
The Eleventh Circuit has explained that "the linchpin for conspiracy is agreement, which presupposes communication." Bailey v. Bd. of Cnty. Comm'rs of Alachua Cnty., 956 F.2d 1112, (11th Cir. 1992). "[A]n agreement may be inferred from the relationship of the parties, their overt acts and concert of action, and the totality of their conduct." Am. Fed'n of Labor & Cong. of Indus. Orgs. v. City of Miami, 637 F.3d 1178, 1192 (11th Cir. 2011); see also Grider, 618 F.3d at 1260 (stating that "[f]actual proof of the existence of a § 1983 conspiracy may be based on circumstantial evidence" (citing Burrell v. Bd. of Trs. of Ga. Military Coll., 970 F.2d 785, 789 (11th Cir.1992)). As a guide, our sister court has found that a plaintiff alleges sufficient facts to state a claim for § 1983 conspiracy where: (1) plaintiff alleged all defendants actively participated in the events leading up to the alleged constitutional violation, (2) plaintiff alleged all defendants "acted in concert" when the constitutional violation was committed, and (3) "[t]he Amended Complaint [is] replete with allegations that the Defendants communicated with one another and actively participated with one another" leading up to and during the event in question. Conway, 2013 WL 5493380, at *5 (citing Valentine, 2012 WL 27416, at *6).
Here, Mr. Gibbons alleges that Chief McBride, Officers Martin and Jackson, and POS Turner conspired to facilitate his prosecution for obstruction after the March 2012 traffic stop. (Am. Compl. ¶ 131.) Specifically, he claims that Officer Martin lied about engaging Mr. Gibbons in dialogue before he deployed the taser (id. ¶ 137) and Mr. Gibbons rolling up the window on his hand (id. ¶ 138). According to Mr. Gibbons, Officer Jackson lied about there being no tag whatsoever on Mr. Gibbons' car (id. ¶ 140) and Mr. Gibbons flashing Officer Martin the bird immediately prior to the stop (id. ¶ 139). Mr. Gibbons also asserts that Officer Turner investigated the March 2012 stop and "incompetently believed" Officer Martin by failing to review the video evidence or with "evil motive" "decided to help Martin cover, up the purposefulness of" the third, fourth, and fifth tasings. (Id. ¶ 111.) Finally, Officer McBride reviewed Officer Turner's investigation without objection. (Id. ¶ 143.) All in all, these' Defendants executed a "plan" "to cause the malicious prosecution of Mr. Gibbons" (id. ¶ 131), "to cover up [Officer] Martin's misconduct" (id. ¶¶ 137-42), and to "chill protected First Amendment activity" (id. ¶¶ 158) or "prevent ... a subsequent civil rights case against any Defendant" (id.).
Defendants contend that Mr. Gibbons failure "to identify specific facts plausibly
The Court, however, does not find this deficiency to be dispositive at the motion to dismiss stage. Indeed, that the above-mentioned officers reached an agreement to violate Mr. Gibbons' constitutional rights may be inferred from their relationship as members of the GRU Police Bureau and the totality of their conduct related to the arrests, investigations, and prosecutions. The chronology of events and the commonality of actors between the September 2010 and March 2012 stops are sufficient, for now, to state a circumstantial claim by the slimmest of margins that the officers within the GRU Police Bureau were working in concert with one another to prosecute Mr. Gibbons in retaliation for exposing officer misconduct.
Defendants nevertheless counter that the intracorporate conspiracy doctrine bars Mr. Gibbons' conspiracy claims. (Defs.' Br. at 13-14.) "The intra-corporate conspiracy doctrine holds that acts of corporate agents are attributed' to the corporation itself, thereby negating the multiplicity of actors necessary for the formation of a conspiracy." Grider, 618 F.3d at 1261 (quoting McAndrew v. Lockheed Martin Corp., 206 F.3d 1031, 1036 (11th Cir.2000) (en banc)). "[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." Id.; see also Denney v. City of Albany, 247 F.3d 1172, 1190-91 (11th Cir.2001) (stating "the only two conspirators identified... are both City employees; no outsiders are alleged to be involved" and concluding intracorporate conspiracy doctrine barred plaintiffs' § 1985(3) conspiracy claims for deprivation of their equal protection rights). The doctrine applies to public governmental entities and their personnel. See Rehberg v. Paulk, 611 F.3d 828, 854 (11th Cir.2010); Denney, 247 F.3d at 1190; Albra v. City of Fort Lauderdale, 232 Fed.Appx. 885, 891 (11th Cir.2007); Dickerson v. Alachua Cnty. Comm'n, 200 F.3d 761, 767-68 (11th Cir. 2000); Chambliss v. Foote, 562 F.2d 1015 (5th Cir.1977).
Defendants are law enforcement officers with the GRU Police Bureau. Mr. Gibbons does not allege that, outsiders are involved. The subject of their alleged conspiracy — prosecution of Mr. Gibbons by making a false obstruction charge — involves job-related functions well within their scope of employment as police officers notwithstanding the purported constitutional infirmity of their conduct: "law enforcement officers are empowered precisely to prosecute violations of law."
The Eleventh Circuit, however, has enunciated, but not fully adopted three exceptions to the doctrine. Grider, 618 F.3d at 1263. The intracorporate conspiracy doctrine may not bar a plaintiff's claim where (1) the participants' conduct violates the federal criminal code, McAndrew, 206 F.3d at 1034; (2) "the employee has an `independent personal stake' in his unconstitutional acts and is not acting to further the corporation's illegal objective," Grider, 618 F.3d at 1262; and (3) "the employees `engage in a series of discriminatory acts as opposed to a single action' over a significant period of time in the employment setting," id. (quoting Dickerson, 200 F.3d at 768-70).
Mr. Gibbons invokes the first exception in brief, although nowhere in the Amended Complaint does he allege that the conduct at issue here could give rise to criminal charges against Defendants. A complaint may not be amended by briefs in opposition to a motion to dismiss. Huls v. Llabona, 437 Fed.Appx. 830, 832 n. 5 (11th Cir.2011) (holding that an argument raised for the first time in response to defendant's motion to dismiss, instead of in an amended complaint, was not properly raised before the district court and would not be considered on appeal); McKally v. Perez, 87 F.Supp.3d 1310, 1317-18, No. 14-22630-CIV, 2015 WL 758283, at *6 (S.D.Fla. Feb. 6, 2015); Fleming v. Dowdell, 434 F.Supp.2d 1138, 1148 n. 9 (M.D.Ala.2005) (finding dismissal of the Fourth Amendment claim was proper because "[a] complaint may not be amended by briefs in opposition to a motion to dismiss or motion for summary judgment") (citations omitted). Notwithstanding this error, the Court puts the issue to rest.
In his response brief, Mr. Gibbons, argues that Defendants' conduct violated 18 U.S.C. § 1512, which prohibits witness tampering, and the criminal fraud conspiracy provisions of 18 U.S.C. § 371. (Pl.'s Resp. at 15.) 18 U.S.C. § 1512(b)(1) makes it a crime to "knowingly use[ ] intimidation... or corruptly persuade[ ] another person ... with intent to ... influence the testimony of any person in an official proceeding." Id. (emphasis added). As the Court previously mentioned, Mr. Gibbons alleges no facts in the Amended Complaint to support 18 U.S.C. § 1512(b)(1)'s application. That Defendants purportedly lied about various facts or ratified subpar internal investigations does not give rise to the inference that each of them intimidated or corruptly influenced the other to testify falsely. Moreover, the "official proceeding" about which Mr. Gibbons complains was not "before a judge' or court of the United States," Congress, a federal agency, or insurance regulators as required by the statute. 18 U.S.C. § 1515(a)(1) (emphasis added).
18 U.S.C. § 371 makes it unlawful "to commit any offense against the United States, or to defraud the United States, or
As Mr. Gibbons does not address the other two exceptions to the intracorporate conspiracy doctrine, neither will the Court. Defendants' motion to dismiss Counts VII and VIII based on the intracorporate conspiracy doctrine is due to be
Count IX of the Amended Complaint consists of a single paragraph:
(Am.Compl. ¶ 154.) Unsurprisingly, by way of a footnote, Mr. Gibbons clarifies that "Claim IX of the complaint ... is only intended to add First Amendment freedom of movement and right to travel damages to the Fourth Amendment false stop asserted in Claim I." (Pl.'s Resp. at 2 n.5.) The Court has read Count IX — including all that it purports to incorporate — and agrees with Defendants: it is not clear what claim is being made or against whom. Mr. Gibbons received explicit instructions from the Court in its October 27, 2014 Order about the manner in which he was expected to present his claims upon repleading (Doc. 38 at 8-9) and Count IX does not conform to those standards. The Court will not draft a conforming claim for him. Accordingly, the Court
Based on the foregoing, the Court
The remaining claims, as listed herein, are
The Court
Finally, the Court
The Court further
