MEMORANDUM OF LAW TO: Judge Jones FROM: Patrick Sutton DATE: Monday, August 7, 2005 RE: Lee v. Burke, Edwards, and Stapleton , SU-04-CV-1409-J, Defendants Burke and Edwards Motion for Summary Judgment. __ __________________________________________________________________ _________ _ _ _____________________________________________________________________________________________________ ______________ Questions Presented 1. DEFENDANTS BURKE AND EDWARDS MAY NOT BE LIABLE IN A 42 U.S.C. §1983 RESPONDEAT SUPERIOR OR SUPERVISORY LIABILITY CLAIM. 2. DEFENDANTS BURKE AND EDWARDS MAY NOT BE LIABLE IN A 42 U.S.C. §1983 CLAIM. 3. DEFENDANTS BURKE AND EDWARDS MAY NOT BE LIABLE IN THEIR OFFICIAL CAPACITY FROM PLAINTIFF SMITH’S STATE LAW CLAIM UNDER THE DOCTRINE OF SOVEREIGN IMMUNITY. 4. DEFENDANTS BURKE AND EDWARDS MAY NOT BE ENTITLED TO QUALIFIED IMMUNITY IN PLAINTIFF SMITH’S STATE LAW CLAIMS. 5. PLAINTIFF MAY NOT PREVAIL ON A GENERAL RESPONDEAT SUPERIOR STATE TORT CLAIM. 6. PLAINTIFF MAY NOT PREVAIL ON A GENERAL NEGLIGENCE CLAIM AS A CRIMINAL ACT BY A THIRD PARTY ABSOLVES A DEFENDANT WHO MAY HAVE OTHERWISE BEEN LIABLE. 7. PLAINTIFF MAY NOT PREVAIL ON A 8 TH AMENDMENT CLAIM OF CRUEL
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MEMORANDUM OF LAW
TO: Judge JonesFROM: Patrick SuttonDATE: Monday, August 7, 2005RE: Lee v. Burke, Edwards, and Stapleton, SU-04-CV-1409-J, Defendants Burke and
Edwards Motion for Summary Judgment. __ ___________________________________________________________________________ _ _ ___________________________________________________________________________________________________________________
Questions Presented
1. DEFENDANTS BURKE AND EDWARDS MAY NOT BE LIABLE IN A 42 U.S.C. §1983 RESPONDEAT SUPERIOR OR SUPERVISORY LIABILITY CLAIM.
2. DEFENDANTS BURKE AND EDWARDS MAY NOT BE LIABLE IN A 42 U.S.C. §1983 CLAIM.
3. DEFENDANTS BURKE AND EDWARDS MAY NOT BE LIABLE IN THEIR OFFICIAL CAPACITY FROM PLAINTIFF SMITH’S STATE LAW CLAIM UNDER THE DOCTRINE OF SOVEREIGN IMMUNITY.
4. DEFENDANTS BURKE AND EDWARDS MAY NOT BE ENTITLED TO QUALIFIED IMMUNITY IN PLAINTIFF SMITH’S STATE LAW CLAIMS.
5. PLAINTIFF MAY NOT PREVAIL ON A GENERAL RESPONDEAT SUPERIOR STATE TORT CLAIM.
6. PLAINTIFF MAY NOT PREVAIL ON A GENERAL NEGLIGENCE CLAIM AS A CRIMINAL ACT BY A THIRD PARTY ABSOLVES A DEFENDANT WHO MAY HAVE OTHERWISE BEEN LIABLE.
7. PLAINTIFF MAY NOT PREVAIL ON A 8TH AMENDMENT CLAIM OF CRUEL AND UNUSUAL PUNISHMENT.
8. PERSONAL RECOMMENDATIONS
Statement of Facts
On June 4, 2004, officers removed Plaintiff Lee D. Smith from his cell in Athens-Clarke
County Jail because he got into a fight with another inmate, Charles Williams. Smith had property in
the cell and asked officers to retrieve it, but the property was never recovered. Smith alleges when he
complained about his property, Officer Walker and Officer Dorsey stopped Smith in the hallway and
assaulted him. Smith alleges that Dorsey grabbed Smith around the neck while officer Walker
grabbed Smith by the lower arm by the cuffs and pushed him into the wall, which caused Smith to
hit his elbow on the wall. Smith further alleges both officers picked him up by the same injured arm
and his neck and pushed Smith up against the wall to the ceiling. Smith was then taken to booking
and placed into a cell. Smith requested to go to the nurse to Lieutenant Winfield where pictures were
taken of Smith’s neck and arm. About thirty minutes later, Officer Stapleton told Smith to move to
the CC. Smith complained his arm was still hurting and Smith claims Officer Stapleton told Smith
“to get his ass up.” When Smith did not move, Smith alleges Stapleton hit Smith across the jaw with
his fist at which time Sergeant Harper stopped Stapleton from hitting Smith again. Smith claims that
cameras in the jail should have recorded the initial alleged assault.
On June 23, 2004, Smith filled out an Inmate Form for Civil Action that was notarized. On
July 9, 2004, Judge Jones ordered Smith to be allowed to proceed in his complaint in Forma
Pauperis. On July 12, 2004, the Inmate Form was filed with the Athens–Clarke County Superior
Court claiming Captain A. Burke, Sheriff Ira Edwards, Lieutenant Winfield, and Deputies Chris
Stapleton, Walker, and Dorsey as defendants. Smith is suing for one million dollars from each
defendant for actual damages, one million dollars from each defendant for punitive damages, and
one million dollars from each defendant for pain and suffering. As of this date, July 13, 2005,
Winfield, Stapleton, Walker, and Dorsey have not been served of Smith’s civil lawsuit.
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On May 31, 2005, Defendants Burke and Edwards filed a motion for summary judgment
claiming that there are no genuine issues as to any material fact and that the undisputed facts
preclude Burke and Edwards from liability. Burke is the commander of the jail and Sheriff Edwards
issued certain policies and procedures, including a Response to Resistance/Aggression policy
(“Policy”) that governs the conduct of deputy sheriffs and other employees of the sheriff’s
department on January 9, 2002. Defendants claim that neither Burke nor Edwards have had any
contact with Smith, neither was present during the alleged incidents, nor issued direct orders
pertaining to the alleged incidents. Defendants believe that Smith has failed to allege anything that
the Defendants may have done to harm Smith. Defendants deny any personal knowledge of any of
the matters Smith complains. Defendants also deny any notice of any kind that any of the officers
mentioned by Smith would engage in any behavior about which Smith complains. Defendants
concede, if the facts Plaintiff Smith complains of are true, the deputies’ actions would have violated
the Response to Resistance/ Aggression policy of the sheriff’s department and the jail.
Because Plaintiff has not fully articulated his legal claims, the Defendants raise many
potential legal issues that could have been raised if Smith had raised specific legal claims.
Defendants argue that Edwards is precluded from liability from any 42 U.S.C. §1983 claims, that
Edwards and Burke have no supervisory liability under §1983, that Edwards and Burke are entitled
to qualified immunity on any §1983 claims, that Plaintiff’s state law claims against Edwards in his
official capacity are barred by the doctrine of sovereign immunity, and that the individual defendants
enjoy official immunity from liability on Plaintiff’s state law claims.
Neither party requested oral argument at this time.
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Discussion
To prevail in a summary judgment motion, the “moving party must demonstrate that there is
no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to
the nonmoving party, warrant judgment as a matter of law.” O.C.G.A. §9-11-56(c); Lau’s
Corporation, Inc. v. Haskins, 261 Ga. 491 (1991). “A defendant may do this by showing the court
that the documents, affidavits, depositions and other evidence in the record reveal that there is no
evidence sufficient to create a jury issue on at least on essential element of plaintiff’s claim.” Lau’s
Corporation, Inc., 261 Ga. at 491. We view the evidence and all reasonable inferences drawn from it
in the light most favorable to the nonmovant. Supchak v. Pruitt, 232 Ga. App. 680, 682(1), (1998).
There are two methods a defendant may move for summary judgment, affirmatively disproving at
least one essential element of nonmoving party’s case, or pointing out an absence of evidence to
support at least one essential element of nonmoving party’s case. Caven v. Warehouse Home
Furnishings Distr., 209 Ga. App. 706 (1993). The defendant does not need to affirmatively disprove
the plaintiff's case, but may prevail simply by pointing to the lack of evidence. If the defendant does
so, the “plaintiff cannot rest on his pleadings, but must point to specific evidence that gives rise to a
triable issue of fact.” Upshaw v. Roberts Timber Co., 266 Ga. App. 135 (2004).
42 U.S.C. §1983 claims have a more specific requirement in a motion for summary
judgment. “To survive summary judgment in a §1983 action, a plaintiff must demonstrate the
existence of genuine issues of material fact showing that the defendant’s acts or omissions,
performed under color of state law, resulted in a deprivation of a right, privilege, or immunity
protected by the United States Constitution or the laws of the United States.” 42 U.S.C. §1983
(1996); Means v. City of Atlanta Police Department., 273 Ga. App. 700 (2003).
4
1. DEFENDANTS BURKE AND EDWARDS MAY NOT BE LIABLE IN A 42 U.S.C. §1983 RESPONDEAT SUPERIOR OR SUPERVISORY LIABILITY CLAIM.
A lawsuit against a county employee in his/her official capacity is a lawsuit against the
government entity. The Supreme Court has held that “local governments can be sued under §1983,
necessarily decides that local government officials sued in their official capacities are “persons”
under §1983 in those cases in which, as here, a local government would be suable in its own name.”
Monell v. Dep’t of Social Services of the City of New York, 436 U.S. 658, 690 (1978) [hereinafter
Monell]. The Court reasoned, “Congress did intend municipalities and other local government units
to be included among those “persons” to whom §1983 applies.” Monell, 436 U.S. at 690. Thus,
Plaintiff’s lawsuit against Defendants is a lawsuit against Athens-Clarke County and the County is
considered a person who may be subjected to liability in this lawsuit.
Establishing a municipality may be sued under §1983, it must be determined when a
municipality may be liable. “Nothing in the history of §1988, a statute designed to make effective
the remedies created in §1983 and similar statutes, suggests that fee liability, unlike merits liability,
was intended to be imposed on a respondeat superior basis.” Kentucky v. Graham, 473 U.S. 159,
168 (1985). In a decision three years later, the Supreme Court held “that a municipality cannot be
held liable [for violation of civil rights] solely because employee is a tort-feasor--or, in other words,
a municipality cannot be held liable under §1983 on a respondeat superior theory.” Monell, supra, at
691; Cuesta v. School Bd. of Miami-Dade County, Florida, 285 F.3d 962, 966 (11th Cir. 2002)
(holding a local government may not be sued under §1983 for an injury inflicted solely by its
employees or agents). The Court concluded that a “local government may not be sued under §1983
for an injury inflicted solely by its employees or agents.” Monell, supra, at 694. Georgia holds a
similar standard codified under O.C.G.A. §36-33-3.
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Under the Official Code of Georgia Annotated, “civil rights statutes imposing liability for
deprivation of constitutional rights by a defendant acting under color of state law or custom is not [a]
federally imposed doctrine of respondeat superior, and [a] municipality may not be held liable
thereunder solely on negligence or respondeat superior theories.” O.C.G.A. §36-33-3 (2005); Const.
Art. 1, §2, Par. 9 (1990); 42 U.S.C. §1983 (1996); City of Cave Springs v. Mason, 252 Ga. 3 (1984).
Thus, Plaintiff Smith may not sue Defendants Burke and Edwards, and in effect Athens-Clarke
County, solely under a 42 U.S.C. §1983 respondeat superior claim.
In addition, supervisory officials are not liable under §1983 “for the unconstitutional acts of
their subordinates ‘on the basis of respondeat superior or vicarious liability.’” Hartley v. Parnell,
193 F.3d 1263, 1269 (11th Cir. 1999); quoting Belcher v. City of Foley, 30 F.3d 1390, 1396 (11th
Cir. 1994). However, the supervisor may be found liable if either the supervisor “personally
participates in the alleged constitutional violation or when there is a causal connection between
actions of the supervising official and the alleged constitutional deprivation.” Hartley, 193 F.3d at
1269. The causal connection may be established and supervisory liability imposed where the
supervisor’s improper “custom or policy…results in deliberate indifference to constitutional rights.”
Hartley, 193 F.3d at 1269; see Rivas v. Freeman, 940 F.2d 1491, 1495 (11th Cir. 1991); quoting
Zatler v. Wainwright, 802 F.2d 397 (11th Cir. 1986). In addition, when a “history of widespread
abuse puts a responsible supervisor on notice of the need to correct the alleged deprivation, and he
fails to do so, can establish a causal connection.” Hartley, at 1269. However, to sufficiently notify
the supervising official, the deprivations that constitute widespread abuse “must be obvious, flagrant,
rampant and of continued duration, rather than isolated occurrences.” Id. at 1269; quoting Brown v.
Crawford, 906 F.2d 667, 671 (11th Cir. 1990).
6
In the present action, Defendants claim they did not personally participate in the removal of
Plaintiff Smith from his cell or participate in either of the alleged assaults on Smith. Defendants
argue that even if Smith’s constitutional rights were violated, “such would not represent the
execution of government policy or decision but rather a direct violation of the response to
Resistance/Aggression policy approved by Sheriff Edwards.” Def. Brief at 6. Defendants argue that
there is no causal connection between the government and any violation of Smith’s constitutional
rights. Def. Brief. at 6. Defendants deny they had any notice or indication of any kind that any of the
officers mentioned in Smith’s complaint would engage in any behavior Smith complains. Def.
Exhibit C, para. 4.
Plaintiff does not deny that Defendants Burke and Edwards did not participate in any of the
alleged assaults. However, Plaintiff argues in his Motion to Deny Summary Judgment that Burke is
the “immediate supervisor and should know what is going on.” Pl. Motion at 1. In addition, Plaintiff
argues that “several other inmates also complain about officers[sic] abuse and nothing was [done] by
Captain Burke or Sheriff Edwards. Pl. Motion at 2. Plaintiff believes that “someone should be
accountable for the action of their employees.” Pl. Motion at 2, para. 8.
It is undisputed that neither Defendant personally participated in either alleged assault on
Plaintiff. It is undisputed that the Policy in itself does not violate Plaintiff’s constitutional rights. It is
the alleged violation of the Policy that Plaintiff complains. Therefore, the official Policy itself is not
indifferent to Plaintiff’s rights. Plaintiff complains in the Athens-Clarke County Jail there is a history
of widespread abuse that should have put Defendants on notice that they need to correct alleged
deprivations. According to the Eleventh Circuit Court of Appeals, failure to do so “can establish a
causal connection.” Hartley, at 1269. However, for Defendants to be sufficiently notified, the
deprivations that constitute widespread abuse must be “flagrant, rampant and of continued duration,
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rather than isolated occurrences.” Id. at 1269. The issue turns on whether Plaintiff’s assertion that
“several other inmates also complain” constitutes a “continued duration” or “isolated occurrences.”
Plaintiff does not submit any evidence, such as other prisoner’s affidavits that amounts to
sworn testimony that supports widespread abuse of prisoners over a continued duration. Plaintiff has
not demonstrated that either Defendant, prior to the alleged assault on Plaintiff, were ever on notice
that their employees may have been violating the Policy and that Defendants needed to correct any
officers’ behaviors that violated the Policy. Plaintiff offers no other evidence other than his own
sworn testimony to support his claim. This is insufficient. A plaintiff may not rest upon his pleadings
but “must point to specific evidence that gives rise to a triable issue of fact.” Upshaw, 266 Ga. App.
at 135. Thus, this Court finds that Defendants Burke and Edwards are not liable under a 42 U.S.C.
§1983 claim of respondeat superior or supervisory liability.
2. DEFENDANTS BURKE AND EDWARDS MAY NOT BE LIABLE IN A 42 U.S.C. §1983 CLAIM.
A municipal body that is sued under the Civil Rights Act of 1871 is not entitled to an
absolute immunity. Monell, supra, at 701. “Local governing bodies, therefore, can be sued directly
under §1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged
to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body’s officers.” Id. at 690-91. Local government bodies
may be “liable under §1983 when execution of a government’s policy or custom, whether made by
its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts
the injury.” Cuesta v. Sch. Bd. of Miami-Dade County, Florida, 285 F.3d 962, 966 (11th Cir. 2002)
[hereinafter Cuesta]; citing Monell, supra, at 694. Therefore, for Plaintiff to prevail under a 42
8
U.S.C. claim, Plaintiff must show that the Policy itself inflicted the injury and not by the alleged
negligent or indifferent acts or omissions of Defendants.
A plaintiff can establish §1983 liability by identifying that he has been deprived of
constitutional rights by either an express policy or a “widespread practice that, although not
authorized by written law or express municipal policy, is so permanent and well settled as to
constitute a custom and usage with the force of law.” Cuesta, 285 F.3d at 966; see also Brown v.
City of Fort Lauderdale, 923 F.2d 1474, 1482 (11th Cir. 1991); quoting City of St. Louis v.
Praprotnik, 485 U.S. 112, 123 (1988). In a §1983 action, the plaintiff “bears the burden of persuasion
of every element.” Cuesta, supra, at 670; see Miller v. Taylor, 877 F.2d 469, 472 (6th Cir. 1989)
(holding plaintiff in 1983 action excessive force action had burden of proving that force was
excessive); see also Edwards v. Philadelphia, 860 F.2d 568, 572 (3d Cir. 1988) (finding prisoner
alleging 8th Amendment violation bore burden of proving every element, including that the guard
acted without justification). In addition, the Court believed that a plaintiff “must demonstrate a
causal link between the municipal action and the deprivation of federal rights.” Cuesta, supra, at
967; see Bd. of the County Comm’rs v. Brown, 528 U.S. 397, 404 (1997). If plaintiff fails to
produce any evidence indicating an allegation, then the plaintiff’s claim “must fail as a matter of
law.” Cuesta, supra, at 970-71.
We begin with the language of §1983 as originally passed:
"[A]ny person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress . . . ." 17 Stat. 13. (emphasis added). Monell, supra, at 691-92.
In Monell, the Court reasoned that the italicized language plainly imposes liability on a government
9
that, under color of some official policy, "causes" an employee to violate another's constitutional
rights. Monell, supra, at 692. “Congress included customs and usages [in §1983] because of the
persistent and widespread discriminatory practices of state officials…although not authorized by
written law, such practices of state officials could well be so permanent and well settled as to
constitute a ‘custom or usage’ with the force of law.” Id. at 691. When execution of a government’s
policy or custom, whether made by lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury that the government as an entity is responsible under
§1983.” Id. at 694. It is not sufficient for a government body’s policy to be tangentially related to a
constitutional deprivation. Cuesta, supra, at 967. Therefore, the “official policy or custom must be
the moving force of the constitutional violation in order to establish liability of a government body
under §1983.” Id., at 967; Gilmore v. City of Atlanta, Ga., 737 F.2d 894, 901 (11th Cir. 1984).
Proof of a single incident of unconstitutional activity is not sufficient to impose liability under
Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional
municipal policy, which policy can be attributed to a municipal policymaker. City of Oklahoma v.
Tuttle, 471 US 801, 823-24 (1985); Bell v. City of Albany, 219 Ga. App. 371 (1993). Otherwise the
existence of the unconstitutional policy, and its origin, must be separately proved. Tuttle, 471 U.S. at
824. But where the “policy relied upon is not itself unconstitutional, considerably more proof than
the single incident will be necessary in every case to establish both the requisite fault on the part of
the municipality and the causal connection between the ‘policy’ and the constitutional deprivation.”
Id. at 824. A municipal "policy" that might lead to "police misconduct" is hardly sufficient to satisfy
Monell's requirement that the particular policy be the "moving force" behind a constitutional
violation. Id. at 824(8). The discussion of the origins of Monell's "policy or custom" requirement
was “intended to prevent the imposition of municipal liability under circumstances where no wrong
10
could be ascribed to municipal decision-makers.” Id. at 821. To compel liability under those
situations “would be to impose it simply because the municipality hired one ‘bad apple.’" Id. at 821.
Georgia courts have held a similar standard to find a municipal liable for policies enacted by
its officers. “In some instances a single decision by municipal policymakers, or a single
implementation of a municipal policy or custom by a municipal employee, may be sufficient to
establish that a municipal policy or custom caused the alleged deprivation, but municipal liability
may not be imposed pursuant to 42 U.S.C. §1983 for a single incident of unconstitutional conduct by
a municipal employee without proof that the conduct taken pursuant to a municipal policy or
custom.” Bell, 210 Ga. App. at 373; see Dupree v. Thomas County, 46 F. Supp. 2d 1372 (M.D. Ga.
1998) (holding a Georgia sheriff’s department and county were immune from suit for “alleged use of
excessive force absent evidence of any policy or practice which resulted in plaintiff's harm”).
In the present action, Defendants argue the government policy “can be derived through
consideration of the Response to Resistance/Aggression policy approved by Sheriff Edwards, which
governs the conduct of deputy sheriffs and other employees of the sheriff’s department.” Def. Brief
at 5-6. Defendants further contend even if Plaintiff Smith’s constitutional rights were violated, such
a violation “would not represent the execution of government policy or decision but rather a direct
violation of the Response to Resistance/Aggression policy approved by Sheriff Edwards in January
2002.” Def. Brief at 6. Therefore, defendants argue there is “no causal connection between the
government and any violation of Plaintiff’s rights. Defendants conclude, “there is not a shred of
evidence in this record which tends to show any ‘custom’, which led to the alleged violation of
Plaintiff’s constitutional rights.” Def. Brief at 6-7.
Plaintiff concedes that Sheriff Edwards did issue “policies and procedures to govern the
conduct of deputy sheriffs and other employees of the sheriff department.” Pl. Motion at 2.
11
However, it remains Plaintiff’s contention that “several other inmates also complain about officers
abuse and nothing was [done] by [Defendants] Captain Burke or [by] Sheriff Edwards.” Pl. Motion
at 2. Plaintiff does not argue whether or not the official Response to Resistance/Aggression violates
his constitutional rights, but that the customs and practices that are actually occurring by officers and
supervisors in Athens-Clarke County Jail violated his constitutional rights. Pl. Civil Action Form at
3, paras.11-12; and Pl. Civil Action Form at 4-5, paras. 17-18; and Pl. Motion at 2.
In order to be granted a motion for summary judgment, Defendants have to concede that the
assaults occurred and that there may be another policy being followed by officers and supervisors
rather than the official Policy that Sheriff Edwards implemented in 2002. Not to do so, would create
a genuine issue of material fact as to how many times these assaults have occurred and to whom or
which policy was the actual policy officers in the Athens-County Jail were implementing. The other
policy “could well be so permanent and well settled as to constitute a ‘custom or usage’ with the
force of law.” Monell, supra, at 691. If Defendants’ other policy represents official policy and
inflicts the injury, than the “government as an entity is responsible under §1983.” Id. at 694. The
other policy “must be the moving force” behind Plaintiff’s constitutional deprivation. Cuesta, supra,
at 967. It is possible that the Athens-Clarke County Jail has another policy that was and may be in
place that may have violated Plaintiff’s constitutional rights. Further, a municipality's failure to
correct constitutionally offensive actions of its police department may rise to level of custom or
policy, for if a municipality tacitly authorizes actions or displays deliberate indifference towards
police misconduct a municipality can be held liable under §1983. Brooks v. Scheib, 813 F.2d 1191
(11th Cir. 1987). The record is not without a shred of evidence that demonstrates the official Policy
may not have been followed.
Defendants have not submitted any evidence of a filled-out Response to Resistance/Aggression
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Report as required by the official Policy. Def. Exhibit B(1) at 9-10, paras. G (3)(b), (3)(d), (3)(e).
Defendants have not submitted any evidence that a supplemental report was filled out as required by
the official Policy. Def. Exhibit B(1) at 10-11, paras. G (4)(a)-(g). Defendants have not submitted
any evidence that there was an administrative review as required by the official Policy. Def. Exhibit
B(1) at 11, para. H. Defendants did not even respond to Plaintiff’s assertion that he attempted to
contact Defendants and was ignored. Pl. Motion at 1, para. 3. There is sufficient enough evidence to
demonstrate that in this single incident the official Policy may not have been followed. However, a
single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless
proof of the incident includes proof that it was caused by an existing, unconstitutional municipal
policy and the policy can be attributed to a municipal policymaker. Tuttle, 471 U.S. at 823-24
(1985). It is the latter component that Plaintiff fails to establish to find Defendants liable under a
§1983 claim.
The alleged attacks on Plaintiff and the subsequent administrative response to the attack can be
considered as single event. Plaintiff’s unsupported claim of other prisoners’ abuse is insufficient to
demonstrate multiple events of abuse, as discussed earlier. Plaintiff has not shown, even if another
policy is being implemented, that that policy is attributed to Defendants. Plaintiff offers no evidence
other than a bare assertion that links the other policy as being authorized or implemented by
Defendants. To impose liability under those circumstances would be to impose it simply because the
municipality hired one "bad apple," Monell, supra, at 821, or a couple.
3. DEFENDANTS BURKE AND EDWARDS MAY NOT BE LIABLE IN THEIR OFFICIAL CAPACITY FROM PLAINTIFF SMITH’S STATE LAW CLAIM UNDER THE DOCTRINE OF SOVEREIGN IMMUNITY.
In the absence of some waiver of immunity afforded a city for torts committed by its police
13
officers while engaged in their official duties, there can be no municipal liability for a claim based
on allegedly reckless conduct by police. O.C.G.A. §36-33-3 (2005); Williams v. Soloman, 242 Ga.
App. 807 (2000), certiorari granted, aff’d, 274 Ga. 122 (2001). Official functions performed by
officer or public employee, for which official immunity applies in absence of actual malice or intent
to cause injury, is any act performed within an officer's or employee's scope of authority, including
both ministerial and discretionary acts. Gilbert v. Richardson, 264 Ga. 744, 753 (1994); Todd v.
Kelly, 244 Ga.App. 404, 406 (2000). The defense of "official immunity" applies to government
officials and employees sued in their official capacities while shielding acts of government officials
and employees that are discretionary, are done in the course of official duty, and are performed
without willfulness or actual malice, but does not shield acts that are ministerial and performed
negligently. Hazelwood v. Adams, 235 Ga. App. 607, 608-09 (1998) rev’d on other grounds. Thus,
for Plaintiff to overcome Defendants’ official immunity defense, Plaintiff must show that
Defendants acted negligently in their performance of a ministerial duty, Defendants acted with actual
malice toward Plaintiff in their performance of a discretionary duty, or that Athens-Clarke County
waived its sovereign immunity for acts committed by its officers in their performance of an official
duty.
We look to the Georgia Constitution Article 1, § 2, ¶ IX for initial guidance:
(d) Except as specifically provided by the General Assembly in a State Tort Claims Act, all officers and employees of the state or its departments and agencies may be subject to suit and may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions and may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions. Except as provided in this subparagraph, officers and employees of the state or its departments and agencies shall not be subject to suit or liability, and no judgment shall be entered against them, for the performance or nonperformance of their official functions. The provisions of this subparagraph shall not be waived.
(e) Except as specifically provided in this Paragraph, sovereign immunity extends to the
14
state and all of its departments and agencies. The sovereign immunity of the state and its departments and agencies 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. Georgia Constitution Article 1, § 2, ¶ IX; Ratified November 6, 1990.
The test is a “[s]uit against a public officer acting in his or her official capacity will be barred by
official immunity unless the public officer (1) negligently performed a ministerial duty, or (2) acted
with actual malice or an actual intent to cause injury while performing a discretionary duty.” Harper
v. Patterson, 270 Ga. App. 437, 440 (2004). A determination of whether a public official's acts are
ministerial or discretionary, for purposes of determining whether official is immune from suit, “turns
upon the facts of each case.” Woodward v. Laurens County, 265 Ga. 404, 407 (1995); see also
Wanless v. Tatum, 244 Ga. App. 882 (2000). Thus, a public officer or employee may be personally
liable only for ministerial acts negligently performed or discretionary acts performed with malice or
with an intent to injure. Middlebrooks v. Bibb County, 261 Ga. App. 382, 385 (2003).
A ministerial act, for which a public official may not claim immunity, 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” while a discretionary act, for which a public official may not
claim immunity, 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.” Middlebrooks, 261 Ga. App. at 385. While the act of establishing a policy in the first place
is discretionary, the acts of following established policies of inspecting and monitoring are
ministerial tasks, for purposes of determining whether official immunity applies. Phillip v. Walls,
242 Ga. App. 309, 311 (2000). Procedures or instructions adequate to cause an act to become merely
ministerial must be so clear, definite and certain as merely to require the execution of a relatively
simple, specific duty. Middlebrooks, 261 Ga. App. at 385-86. The execution of a specific task is
ministerial even though the manner in which it is accomplished is left to the public employee's
15
discretion, for purposes of determining whether employee is immune from suit. Wanless, 244 Ga.
App. at 884. Therefore, Plaintiff has to demonstrate both that Defendants were performing a
ministerial duty and that Defendants performed this ministerial duty negligently, unless Plaintiff can
show that Defendants acted towards Plaintiff while Defendants performed a discretionary duty.
Official immunity extends to “negligent performance of public employee or officer's
discretionary acts.” Gilbert, 264 Ga. at 753. Public officials are immune from damages that “result
from their performance of discretionary functions, unless those functions were undertaken with
malice or intent to cause injury.” Phillip, 242 Ga. App. at 311. A "discretionary act," for purposes of
official immunity, 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.” Todd, 244 Ga. App. at 406. “One who supervises or monitors another exercises discretion
in so doing, for immunity purposes.” Department of Corrections v. Lamaine, 233 Ga. App. 271, 273
(1998); see also Bontwell v. Dept. of Corrections, 226 Ga. App. 524, 526-27(2) (1997) (prison
official supervising convicts); see also McDay v. City of Atlanta, 204 Ga.App. 621(1) (1992)
(training and supervision of police officers by superiors). The Georgia Court of Appeals 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 of the county as
opposed to a ministerial, proprietary, or administratively routine function.” Harvey v. Nichols, 260
Ga. App. 187, 191 (2003). Therefore, unless Plaintiff can demonstrate that Defendants acted with
actual malice toward Plaintiff, both Defendants will be entitled to official immunity.
Actual malice requires a “deliberate intention to do wrong in context of official immunity and
excludes any liability for injuries and damages if officers and employees act with implied malice in
performance of their official functions.” Merrow v. Hawkins, 266 Ga. 390, 391 (1996). In the
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context of official immunity, actual malice means a deliberate intention to do a wrongful act, and
such act may be accomplished with or without ill will and whether or not injury was intended.
Adams v. Hazelwood, 271 Ga. 414, 415 (1999), rev’d on other grounds. “Ill will alone is insufficient
to show actual malice.” Delong v. Domenici, 2005 WL 418790 (2005). While ill will may be an
element of actual malice in many factual situations, “its presence alone cannot pierce official
immunity; rather, ill will must also be combined with an intent to do something wrong or illegal.”
Hazelwood, 271 Ga. at 415, rev’d on other grounds. For purposes of a claim of official immunity,
"actual intent to cause injury" means an “actual intent to cause harm to the plaintiff, not merely an
intent to do the act purportedly resulting in the claimed injury; this definition contains aspects of
malice, perhaps a wicked or evil motive.” Kidd v. Coates, 271 Ga. 33, 33 (1999).
Sovereign immunity of municipalities has not been waived, except to extent of insurance
purchased or city is self-insured; furthermore, municipality is not liable for torts of policemen during
their discharge of their duties. O.C.G.A. §§33-24-51, 33-24-51(b), 36-33-1(a), 36-33-3; Const. Art.
9, §2, Par. 9. Peeples v. City of Atlanta, 189 Ga. App. 888 (1989). However, municipal corporations
may be liable for a city employee's negligence in performing his or her job to the extent the city has
waived its governmental immunity through the purchase of liability insurance. O.C.G.A. §33-24-51;
Cameron v. Lang, 274 Ga. 122 (2001).
In the instant case, Defendants argue that Plaintiff Smith has “not specified any ministerial
duties which Sheriff Edwards or Captain Burke has allegedly violated.” Def. Brief at 14. Defendants
make abundantly clear that the duty of operating the jail, its supervision, and establishing policies
and procedures are discretionary acts as to which both defendants are entitled to official immunity.
Def. Brief at 14-15. Moreover, Defendants argue that Smith has not offered any proof that either
Defendant harbored malice toward Smith or intended to injure him. Def. Brief at 13. Furthermore,
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Defendants argue that Smith “has not and cannot cite any act of the General Assembly which
specifically provides that sovereign immunity is waived and the extent of the waived circumstances
in this case.
Plaintiff did not argue against Defendants Burke and Edwards’ entitlement to official
immunity. Plaintiff does make the assertion that “no one is above the law.” Pl. Motion at 1-2, para.
4. However, since Plaintiff did not address specifically whether or not Burke or Edwards are entitled
to official immunity or point to any evidence that Athens-Clarke County has waived sovereign
immunity due to acquiring insurance, we will forge ahead to the analysis of the law. Despite the
Plaintiff not making the requisite finding, the record contains sufficient evidence to proceed with the
analysis.
The issues presented before this Court, is whether Defendants’ actions or inactions constituted
a discretionary or ministerial duty and whether Athens-Clarke County has waived any sections of its
otherwise entitled sovereign immunity. In order to determine which duty to apply, a brief look at the
Response to Resistance/Aggression Policy is necessary. The Response to Resistance/Aggression
policy establishes a six level continuum to respond to prisoners’ aggression. Def. Exhibit B(1),
Appendix A. Also, the policy has a detailed guideline as to the proper procedural guidelines
supervisors are to follow if and when any degree of force results in serious physical injury. Def.
Exhibit B(1), at 8-11. If an officer has to engage in an instance that initiates a Response to
resistance/Aggression, than a supervisor must file a Report stating what happened, who was
involved, take photos, ensure witnesses are identified, and forward the all documentation to a higher
supervisor for review. Def. Exhibit B(1), at 9. The Policy states, “personnel will only use reasonable
force to accomplish their legal objectives,” and that “once the need for force is no longer present, the
continued response to resistance/aggression cannot be justified.” Def. Exhibit B(1) at 1. A strike to
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the face would be considered a “higher level of force” than the Level Four Hard Empty Hand
Control, Def. Exhibit B(1), at 18, and in violation of the policy that only allowed for the Level Two
Soft Empty Hand Control when a prisoner is uncooperative.
Although what appears to be ministerial duties for offers to perform, overwhelming Georgia
Case law, especially in the Court of Appeals, 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 of the county as opposed to a ministerial, proprietary, or
administratively routine function.” Harvey, 260 Ga. App. at 191. Even if this Court should find that
the acts by Defendants were ministerial duties, Plaintiff would have to demonstrate that the acts were
performed negligently. And, as discussed later in this memorandum in section F, a criminal act by a
third party will absolve Defendants of liability for Plaintiff’s claims. Thus, we must look to see if
Defendants acted with malice and an intent to injure Plaintiff.
Plaintiff claims Defendants were unresponsive to his requests to be heard, but even if these
requests were made and Defendants stood idly doing nothing, ill will is not sufficient. Finding no
evidence in the record demonstrating that Defendants acted with malice and an intent to injure
Plaintiff, Defendants may be entitled to official immunity barring a waiver of sovereign immunity by
Athens-Clarke County. Since Plaintiff has presented no evidence that Athens-Clarke County has
waived its sovereign immunity or that Athens-Clarke County has purchased any insurance for
negligent acts committed by its sheriff department, and without any evidence of either, Athens-
Clarke County may not be liable for the torts committed by its employees absent actual malice.
Thus, Defendants Burke and Edwards may be entitled to official immunity.
4. DEFENDANTS BURKE AND EDWARDS MAY NOT BE ENTITLED TO QUALIFIED IMMUNITY IN PLAINTIFF SMITH’S STATE LAW CLAIMS.
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Qualified immunity offers public officers and employees limited protection from suit in their
personal capacity. Middlebrooks v. Bibb County, 261 Ga. App. 382, 385 (2003). The United States
Supreme Court has held that "government officials performing discretionary functions generally are
shielded from liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known." Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982); see Stough v. Gallagher, 967 F.2d 1523, 1525 (11th Cir.
1992); see also Harvey v. Nichols, 260 Ga.App. 187 (Ga.App. 2003). "If the law was clearly
established, the immunity defense ordinarily should fail, since a reasonably competent public official
should know the law governing his conduct." Harlow, 457 U.S. at 818-19. The test is now called the
"objective reasonableness" standard. Stough, 967 F.2d at 1525. In order for Defendants to attain
qualified immunity, Defendants must show that their conduct does not violate clearly established
statutory or constitutional rights a reasonable person would have known or that the law was not
clearly established.
An appellate court reviewing the denial of the defendant's claim of immunity need not
consider the correctness of the plaintiff's version of the facts, nor even determine whether the
plaintiff's allegations actually state a claim. “All it need determine is a question of law: whether the
legal norms allegedly violated by the defendant were clearly established at the time of the challenged
actions or, in cases where the district court has denied summary judgment for the defendant on the
ground that even under the defendant's version of the facts the defendant's conduct violated clearly
established law, whether the law clearly proscribed the actions the defendant claims he took.”
Courson v. McMillian, 939 F.2d 1479 (11th Cir. 1991); quoting Mitchell v. Forsyth, 472 U.S. 511,
528 (1985). Whether a claimed right "is clearly established is a question of law for the court to