WILLIAM S. DUFFEY, District Judge.
This matter
At 8:44 p.m. on July 22, 2009, Barbara Baker ("Baker") called Gwinnett County's 911 communications center to report that "I've got a daughter here that's totally out of control threatening to shoot herself. She needs some help, somebody to get her to somewhere." (Ex. A to Police Officer Defs.' Mot. for Summ. J. at Track 1-1, 00:00-02:45). Phil Raines ("Raines"), a 911 operator, asked Baker if her daughter, Penny Schwartz ("Schwartz"), had a gun and Baker replied "I think she does, I don't know." (Id.). Baker also told Raines that there were no guns in the house that she knew of. (Id.). Baker told Raines that Schwartz was in a rage and "threatening to kill herself." (Id.).
In response to Raines' questions about whether Schwartz was taking any medication, Baker replied that "I'm afraid she's been on some kind of illegal junk, I don't know. But she is on some other kind of medication for something they gave her at the doctors the day before yesterday." (Id.). Baker further reported to Raines that Schwartz had previously attempted suicide using drugs. (Id.). Raines told Baker that police officers were on the way and ended the call. (Id.).
Raines entered the information provided by Baker into the 911 computer system during his call and transmitted it to the 911 Dispatcher, Neomi Sanchez ("Sanchez"). (Dep. of Phil Raines at 89-90, 94-95). Sanchez was being trained at the time by Tonya Holter ("Holter"). (Dep. of Neomi Sanchez at 11-12, 17; Dep. of Tonya Holter at 55). Instead of typing into the computer system that there were no guns in the house that Baker knew of, Raines' entry stated that Baker said there were no weapons in the house. (Ex. 2 to Dep. of Phil Raines; Dep. of Tonya Holter at 106).
Based on Officer Lyndsey Perry's ("Perry") geographic proximity to Baker's residence, the 911 computer system recommended to Sanchez that Perry be dispatched to the scene. (Dep. of Tonya Holter at 47). When an officer is dispatched to the scene of an incident, Gwinnett County's 911 computer system transmits the information entered by the 911 operator to that officer's vehicle computer. (Dep. of Lyndsey Perry at 31-34).
At 8:46 pm, Sanchez contacted Perry by radio to dispatch her to the Baker residence to address the situation. (Ex. B to 911 Defs.' Mot. for Summ. J. at 00:15; Ex. 2 to Dep. of Phil Raines at Bates 2447). Sanchez told Perry that Schwartz was threatening suicide by pill. (Id.).
Perry read the information Raines entered into the 911 computer system on the computer in her vehicle and noted that it indicated Schwartz was threatening to shoot herself. (Dep. of Lyndsey Perry at 33-34). Perry questioned Sanchez regarding whether Schwartz was threatening to commit suicide by shooting herself or by taking pills. (Id.). Sanchez told Perry that Baker stated that Schwartz was threatening to shoot herself and that there were no weapons in the residence. (Ex. B to 911 Defs.' Mot. for Summ. J. at 01:25-01:58; Dep. of Lyndsey Perry at 35-38, 66-69).
At around 8:55 pm, Perry arrived at Baker's residence. (Ex. 2 to Dep. of Phil Raines at Bates 2447). Perry is the only person to testify about the events that occurred at the Baker residence.
At 8:56 p.m., after speaking with Baker about her Schwartz's possession of a gun, Perry reported to the 911 dispatcher that Schwartz was armed. (Dep. of Lyndsey Perry at 72-73; Ex. B to 911 Defs.' Mot. for Summ. J. at 10:49-10:55; Ex. 2 to Dep. of Phil Raines at Bates 2447).
After reporting to the 911 dispatcher that Schwartz was armed, Perry asked Baker where her daughter was located in the residence. (Dep. of Lyndsey Perry at 74). During this questioning, Perry heard a door open upstairs and heard someone stomping through the hallway in Perry's direction. (Id.). Perry removed her weapon from the holster and held it in the "ready-low" position. (Id. at 92-93). As Schwartz came down the upstairs hall, she screamed: "are they hear, are they f____ ing here yet." (Id. at 155). Stomping down the hall, Schwartz got to the stairs and started down the stairs to the foyer with a gun pointed at Perry. (Id. at 75, 88, 155).
The time between Perry hearing the upstairs door open until Schwartz began coming down the stairs with a weapon was a matter of seconds. (Id. at 88). When Schwartz rounded the upstairs corner and began down the stairs with her gun pointed at Perry, Perry shot at Schwartz. (Id. at 93). She fired two rounds, stopped to assess the threat, and, still seeing the gun in Schwartz's hand and Schwartz still moving toward her, fired three more rounds. (Id. at 93-95). Schwartz dropped her gun and fell to the floor. (Id. at 105-06).
Just before the shots were fired, Perry saw Baker standing off to the side in front of her with a view of the stairs. (Id. at 74). When Schwartz began down the stairs with the gun pointed toward Perry, she was not aware of Baker's location. (Id. at 81-82). She did see some movement out of the corner of her eye, but does not know if it was Baker moving. (Id. at 82). One of the shots fired by Perry struck and killed Baker. (Id. at 159-60).
When Perry was dispatched to respond to the 911 call from Baker, her supervisor was Sergeant D.A. Brown ("Brown," collectively with Perry, the "Police Officer Defendants"). (Dep. of D.A. Brown at 23). Brown was not at the scene of the incident and did not know until after the shooting that Perry had been dispatched to the Baker residence because he was in the bathroom when the 911 call came in. (Id. at 37, 40-41, 45-47). After being dispatched to the Baker residence, Perry did not contact Brown for direction. (Dep. of Lyndsey Perry at 57-58, 62-66).
Brown and Perry were trained and certified law-enforcement officers on July 22, 2009. (Exs. E and F to Police Officer Defs.' Mot. for Summ. J.). There is no evidence that the 911 operators in this action were other than properly trained to handle emergency calls from citizens. (Ex. A to the 911 Defs.' Mot. for Summ. J.).
The Complaints in these actions were filed in the State Court of Gwinnett County on July 19, and 20, 2011. (Schwartz Compl. at 1; Ahlfinger Compl. at 1). Both Complaints assert four identical claims against the Police Officer and 911 Defendants. (Schwartz Compl. ¶¶ 67-83; Ahlfinger Compl. ¶¶ 62-78). Claim One asserts a 42 U.S.C. § 1983 cause of action claiming that Baker and Schwartz's Fourth and Fifth Amendment rights were
On August 23, 2012, the 911 Defendants moved for summary judgment. (911 Defs.' Mot. for Summ. J. [Ahlfinger Action Dkt. 58]; 911 Defs.' Mot. for Summ. J. [Schwartz Action Dkt. 39]).
On August 29, 2012, the Police Officer Defendants moved for summary judgment. (Police Officer Defs.' Mot. for Summ. J. [Ahlfinger Action Dkt. 64]; Police Officer Defs.' Mot. for Summ. J. [Schwartz Action Dkt. 43]).
A court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Parties "asserting that a fact cannot be or is genuinely disputed must support that assertion by... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed.R.Civ.P. 56(c)(1).
The party seeking summary judgment bears the burden of demonstrating the absence of a genuine dispute as to any material fact. Herzog v. Castle Rock Entm't, 193 F.3d 1241, 1246 (11th Cir. 1999). Once the moving party has met this burden, the non-movant must demonstrate that summary judgment is inappropriate by designating specific facts showing a genuine issue for trial. Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir.1999). Non-moving parties "need not present evidence in a form necessary for admission at trial; however, [they] may not merely rest on [their] pleadings." Id.
The Court must view all evidence in the light most favorable to the party opposing the motion and must draw all inferences in favor of the non-movant, but only "to the extent supportable by the record." Garczynski v. Bradshaw, 573 F.3d 1158, 1165 (11th Cir.2009) (quoting Scott v. Harris, 550 U.S. 372, 381 n. 8, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)). "[C]redibility determinations, the weighing of evidence, and the drawing of inferences from the facts are the function of the jury...." Graham, 193 F.3d at 1282. "If the record presents factual issues, the court must not decide them; it must deny the motion and proceed to trial." Herzog, 193 F.3d at 1246. But, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party," summary judgment for the moving party is proper. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Section 1983 provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." 42 U.S.C. § 1983. While not a source of substantive rights, Section 1983 provides a method for vindicating federal rights conferred by the Constitution and federal statutes. Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979).
To prevail in an action under Section 1983, a plaintiff must make a prima facie
For the 911 Defendants and Brown to be liable for an unconstitutional use of force, they must have been present at the scene and in a position to intervene. See Crenshaw v. Lister, 556 F.3d 1283, 1293-94 (11th Cir.2009); Riley v. Newton, 94 F.3d 632, 635 (11th Cir.1996); Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir.1986), abrogated by Nolin v. Isbell, 207 F.3d 1253 (11th Cir.2000); Gainor v. Douglas Cnty., Ga., 59 F.Supp.2d 1259, 1289 (N.D.Ga. 1998); see also Wideman, 826 F.2d at 1031, 1034, 1037 (constitutional violations do not arise from alleged negligence in providing emergency services to those who are not in state custody); Bradberry v. Pinellas Cnty., 789 F.2d 1513, 1517 (11th Cir.1986) (no constitutional violation under Section 1983 where municipality fails to adequately train one of its agents who fails in attempting to rescue a person from a peril not created by the governmental agency).
"A supervisor can be held liable for the actions of his subordinates under § 1983 if he personally participates in the act that causes the constitutional violation or where there is a causal connection between his actions and the constitutional violation that his subordinates commit." AFL-CIO v. City of Miami, 637 F.3d 1178, 1190 (11th Cir.2011). "This requisite causal connection can be established in the following circumstances: (1) when 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 or (2) when a supervisor's improper custom or policy results in deliberate indifference to constitutional rights." Doe v. School Bd. of Broward Cnty., 604 F.3d 1248, 1266 (11th Cir.2010). "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." Brown v. Crawford, 906 F.2d 667, 671 (11th Cir.1990).
Plaintiffs' conclusory assertions that there was a widespread pattern of abuse or existence of an improper custom or policy that resulted in deliberate indifference are insufficient to impose supervisory liability on Brown or the 911 Defendants. See Doe, 604 F.3d at 1266 ("conclusory assertion of a `history of widespread abuse' is clearly insufficient to put [defendant] on notice of an ongoing constitutional deprivation ... [and][a] few isolated instances of harassment will not suffice").
There are no grounds for imposing supervisory liability on the 911 Defendants or Brown because there is no evidence of the existence of prior widespread constitutional abuses or an improper custom or policy that resulted in deliberate indifference by Perry or the 911 operators to put Brown or the 911 Defendants on notice of a need to take action with regard to them.
Claims under Section 1983 against officials in their official capacity are "simply `another way of pleading an action against an entity of which an officer is an agent.'" Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir.1991) (quoting Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)). Because Plaintiffs brought suit against Gwinnett County, any official capacity claims, to the extent they have adequately been alleged, in this case are redundant and are not required to be addressed separately from the claims against the County. See Pompey v. Broward Cnty., 95 F.3d 1543, 1545 n. 2 (11th Cir.1996) ("we treat [the official capacity] claims as claims against the County"); Busby, 931 F.2d at 776.
In any event, Plaintiffs cannot rely on a theory of respondeat superior to hold Gwinnett County liable for the conduct of its officers. McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir.2004).
Id. (internal quotation marks and citations omitted).
"A policy is a decision that is officially adopted by the municipality, or created by an official of such rank that he or she could be said to be acting on behalf of the municipality." Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir. 1997). Plaintiffs have not identified a policy that led to a constitutional violation, but assert that Gwinnett County is liable for the deaths of Baker and Schwartz based on the alleged existence of a custom in failing to train or supervise its police officers and 911 operators.
"Establishing notice of a need to train or supervise is difficult." Id. at 1189. The Eleventh Circuit has described this requirement as having a "high standard of proof [that] is intentionally onerous for plaintiffs," which is necessary to prevent the discrete doctrine of municipal liability from collapsing into simple respondeat superior liability. Gold, 151 F.3d at 1351 n. 10.
A municipality ordinarily will be on notice of a need to train or supervise only if there is a "widespread pattern of prior abuse" or if it has knowledge that a particular constitutional violation has occurred. See AFL-CIO, 637 F.3d at 1189. Whatever the circumstances, "it must have been obvious that the municipality's failure to train or supervise its employees would result in a constitutional violation." Id. A plaintiff must further show that the municipality made a deliberate choice not to take any action on its knowledge of the need to train or supervise. Id.; see also Gold v. City of Miami, 151 F.3d 1346, 1350-51 (11th Cir.1998).
Plaintiffs make factually-unsupported, conclusory claims that there was widespread non-compliance with police procedures by police officers and 911 operators that put Gwinnett County on notice of a need to correct the behavior of its employees. This conclusory claim of non-compliance with procedures is not proof of a widespread pattern of prior constitutional abuses by the 911 operators or police officers. No evidence of prior constitutional abuses was offered by Plaintiffs, much less any evidence that there was an obvious need for Gwinnett County to train or supervise police officers and 911 operators to prevent constitutional violations, and that Gwinnett County deliberately chose to ignore an obvious need. The evidence in this case, however, shows that Gwinnett County 911 operators and police officers are trained in taking calls and responding to suicidal individuals, there are policies in place governing how to respond to these situations, and that corrective actions are taken when there is a failure to comply with the policies. See Holmes v. Kucynda, 321 F.3d 1069, 1078 (11th Cir.2003); (Exs. E and F to Police Officer Defs.' Mot. for Summ. J.; Ex. 2 to Dep. of Phil Raines; Ex. A to the 911 Defs.' Mot. for Summ. J.).
Plaintiffs have simply not presented "evidence that the municipality was aware of the need to train or supervise its employees in a particular area" to avoid a constitutional violation. See AFL-CIO, 637 F.3d at 1188-89; see also City of Canton, 489 U.S. at 389, 109 S.Ct. 1197 ("Only where a failure to train reflects a `deliberate' or `conscious' choice by a municipality — a `policy' as defined by our prior cases — can a [municipality] be liable for such a failure under § 1983."); Lewis v. City of West Palm Beach, Fla., 561 F.3d 1288, 1293-94
Qualified immunity protects government officials who perform discretionary functions from suits in their individual capacities, unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). "The purpose of this immunity is 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." Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.2002) (internal quotation marks and citations omitted). "A government official who is sued under § 1983 may seek summary judgment on the ground that he is entitled to qualified immunity." Benton v. Hopkins, 190 Fed.Appx. 856, 858 (11th Cir.2006).
To be protected by qualified immunity, "the public official must first prove that he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred." Lee, 284 F.3d at 1194 (internal quotation marks omitted). A public official acts within the scope of his
Here, it is undisputed that Brown and the 911 Defendants were on duty and performing duties within the scope of their authority when the events underlying this litigation occurred. There is no genuine dispute of fact that Brown and the 911 Defendants were acting within the scope of their discretionary authority in performing their job-related and discretionary tasks in supervising Perry and responding to Baker's 911 call. See id.
"Once the defendant establishes that he was acting within his discretionary authority, the burden shifts to the plaintiff to show that qualified immunity is not appropriate." Id. The Supreme Court has set forth a two-part test for determining if a defendant is entitled to qualified immunity. "`The threshold inquiry a court must undertake in a qualified immunity analysis is whether [the] plaintiff's allegations, if true, establish a constitutional violation.'" Carr v. Tatangelo, 338 F.3d 1259, 1266 (11th Cir.2003) (quoting Hope, 536 U.S. at 736, 122 S.Ct. 2508). If a constitutional right would have been violated under the plaintiff's version of the facts, "a plaintiff must show that the right violated was clearly established." Fennell v. Gilstrap, 559 F.3d 1212, 1216 (11th Cir.2009).
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." Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), receded from by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), declined to extend by Fennell v. Gilstrap, 559 F.3d 1212 (11th Cir.2009). "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable state actor that his conduct was unlawful in the situation he confronted." Id. at 202, 121 S.Ct. 2151. "If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate." Id.
The 911 Defendants and Brown were engaged in the discretionary performance of their duties on July 22, 2009, and their conduct in responding to a 911 call and supervising Perry would not be clearly unlawful to a reasonable state actor as violating a clearly established constitutional right.
Plaintiffs assert their state-law wrongful death claim against the 911 Defendants and Brown in their individual capacities. These claims implicate Georgia's doctrine of official immunity. "Under Georgia law, a public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure." Cameron v. Lang, 274 Ga. 122, 549 S.E.2d 341, 344 (2001); Gilbert, 452 S.E.2d at 483 (quoting Ga. Const. art. I, § II, ¶ IX(d)). "`A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty.'" Payne v. DeKalb Cnty., 414 F.Supp.2d 1158, 1183 (N.D.Ga.2004) (quoting Harvey v. Nichols, 260 Ga.App. 187, 581 S.E.2d 272, 276 (2003)). "A discretionary act, on the other hand, `calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.'" Id. (quoting Harvey, 581 S.E.2d at 276). Official immunity does not apply to ministerial acts negligently performed, only the performance of discretionary acts. See Polk Cnty. v. Ellington, 306 Ga.App. 193, 702 S.E.2d 17, 23 (2010).
The actions of police officers and 911 operators in supervising subordinates and in responding to calls for assistance involving emergency situations are discretionary acts, rather than ministerial ones. See Phillips v. Hanse, 281 Ga. 133, 637 S.E.2d 11, 12 (2006) (violations of regulations or directives when responding to emergency situations does not transform discretionary decisions into ministerial acts); Cameron, 549 S.E.2d at 345-46 (officers exercise discretion in responding to emergency calls); Polk Cnty., 702 S.E.2d at 23-24 (performance of emergency services duties that require assessing and responding to emergency situations involve the exercise of discretion); Russell v. Barrett, 296 Ga.App. 114, 673 S.E.2d 623, 629 (2009) (quoting Harvey v. Nichols, 260 Ga.App. 187, 581 S.E.2d 272, 276-77 (2003)) ("[T]his Court has consistently held that the operation of a police department, including the degree of training and supervision to be provided its officers, is a discretionary governmental function as opposed to a ministerial, proprietary, or administratively routine function."); Selvy v. Morrison, 292 Ga.App. 702, 665 S.E.2d 401, 404 n. 10 (2008) ("A discretionary act, in contrast to a ministerial act, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed."); Norris v. Emanuel Cnty., 254 Ga.App. 114, 561 S.E.2d 240, 244 (2002) (acts of public employees in responding to crises and emergencies are discretionary); (Dep. of Charles Walters at 20-22).
The Court finds here that the need for Brown and the 911 Defendants to exercise judgment in responding to Baker's call and performing their duties as emergency first responders makes their conduct discretionary. See id. The 911 Defendants and Brown are shielded against Plaintiffs' state law claims unless Plaintiff can show that they acted with malice or an intent to cause injury. See Cameron, 549 S.E.2d at 346.
Marshall v. Browning, 310 Ga.App. 64, 712 S.E.2d 71, 74 (2011) (quoting Selvy, 665 S.E.2d at 404-05); see also Adams v. Hazelwood, 271 Ga. 414, 520 S.E.2d 896, 898 (1999) ("in the context of official immunity, actual malice requires a deliberate intention to do wrong") (internal quotation omitted); Williams v. Solomon, 242 Ga.App. 807, 531 S.E.2d 734, 736 (2000) ("conduct exhibiting a reckless disregard for the safety of others does not equate with the actual malice necessary to defeat a claim of official immunity"). "A `deliberate intention to do wrong' such as to constitute the actual malice necessary to overcome official immunity must be the intent to cause the harm suffered by the plaintiffs." Murphy v. Bajjani, 282 Ga. 197, 647 S.E.2d 54, 60 (2007).
There is no evidence of actual malice on the part of Brown or the 911 Defendants. Summary judgment for Brown and the 911 Defendants is granted on Plaintiffs' state-law wrongful death claim against them in their individual capacities.
The 911 Defendants, including Gwinnett County, are entitled to immunity on the Georgia law claims against them.
Under Georgia law,
O.C.G.A. § 46-5-131(a).
Willful misconduct requires "an actual intention to do harm or inflict injury." Hendon v. DeKalb Cnty., 203 Ga.App. 750, 417 S.E.2d 705, 712 (1992). Wanton misconduct "is that which is `so
The 911 Defendants are entitled to immunity under Georgia law because no reasonable trier of fact could find they acted with wanton and willful misconduct or bad faith in responding to Baker's call. See O.C.G.A. § 46-5-131(a); Hendon, 417 S.E.2d at 712. Even if a trier of fact found that Raines failed to accurately convey information, there is no evidence that he or any other 911 operator acted with indifference to Baker's call or intended to harm or inflict injury on Baker or Schwartz. See Hendon, 417 S.E.2d at 712, (Ex. 2 to Dep. of Phil Raines.). The undisputed facts are that the 911 operators at the communications center did not exhibit willful or wanton misconduct, or bad faith in handling the call from Baker. As a result, the 911 Defendants are entitled to immunity under O.C.G.A. § 46-5-131(a) for the state-law wrongful death claim against them. Summary judgment for the 911 Defendants is required to be granted on this additional ground for the claims against them in their individual and official capacities.
If Plaintiffs seek to assert claims against Gwinnett County, and on their official capacity claims against the 911 Defendants and Brown, the Court finds these Defendants are subject to sovereign immunity.
The Georgia Constitution states that "sovereign immunity extends to the state and all of its departments and agencies." Ga. Const. art. I, § II, ¶ IX. The Georgia Supreme Court has held that the Georgia Constitution's grant of sovereign immunity applies to counties. Gilbert v. Richardson, 264 Ga. 744, 452 S.E.2d 476, 479 (1994); see also Hill v. Dekalb Reg'l Youth Det. Ctr., 40 F.3d 1176, 1197 n. 36 (11th Cir. 1994) ("Even if Dekalb county had any liability under state law, ... a county and its officers sued in their official capacities have the same sovereign immunity protection as the state."), overruled on other grounds by Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002); Payne v. DeKalb Cnty., 414 F.Supp.2d 1158, 1182 (N.D.Ga.2004) (state law claims against a county and its officials in their official capacities barred in absence of statutory waiver of sovereign immunity); Toombs Cnty. v. O'Neal, 254 Ga. 390, 330 S.E.2d 95, 97 (1985) (citing Ga. Const. art. I, § II, ¶ IX). Sovereign immunity "can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver." Ga. Const. art. I, § II, ¶ IX(e); see also O.C.G.A. § 36-1-4 ("A county is not liable to suit for any cause of action unless made so by statute."). The Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq., does not waive the sovereign immunity of counties. Woodard v. Laurens County, 265 Ga. 404, 456 S.E.2d 581, 582 (1995); O.C.G.A. § 50-21-22(5) (excluding "counties" from Georgia Tort Claims Act).
There is no waiver of sovereign immunity for any claims against Gwinnett County and any official capacity claims that may
Plaintiffs' claims of the estates and for attorneys' fees, Claims 3 and 4 in their Complaints, are contingent upon the viability of the Section 1983 and state-law wrongful death claims alleged in Claims 1 and 2. The Court has granted summary judgment on Claims 1 and 2 and thus summary judgment is required to be entered on Claims 3 and 4, except for the claims against Perry, which are subject to the bankruptcy stay and are not addressed in this Order.
For the foregoing reasons,
