Gibbons v. McBride et al, No. 1:2014cv00056 - Document 53 (S.D. Ga. 2015)

Court Description: ORDER granting in part and denying in part 42 Partial Motion to Dismiss. The Court directs the Clerk to terminate Defendants Maxwell, Black, Skinner, Turner, and John/Jane Doe as parties as well as all deadlines and motions pertaining to them. De fendants shall have fourteen days to file an answer to Mr. Gibbons' Amended Complaint. The parties shall submit a discovery plan within thirty days of this Order. The Court cautions Mr. Gibbons' counsel, John P. Batson, against using exce ssive footnotes to evade the 26-page limit for motions filed in this Court. See LR 7.1(a), SDGa. If he continues to use footnotes in this manner, his briefs will, at the Court's discretion, either be rejected as unacceptable for filing or dismissed with leave to be refiled in proper form. The Court further cautions Mr. Batson against abusive use of the sur-reply brief. Signed by Judge J. Randal Hall on 08/21/2015. (thb)

Download PDF

Gibbons v. McBride et al Doc. 53 IN THE UNITED FOR THE STATES DISTRICT SOUTHERN DISTRICT OF COURT GEORGIA AUGUSTA DIVISION FREDERICK GIBBONS, * Plaintiff, * v. * CV 114-056 • WILLIAM McBRIDE, individually and in his capacity as Director with the GRU Department of Public Safety, et al., * * * * * Defendants. * ORDER In this action, Plaintiff Frederick Gibbons asserts claims against the Board of Regents of the University System of Georgia and seven (UGRU") his named officers Police Bureau, First, rights, Fourth, as well the Georgia Regents among others unnamed, Fifth, as of Thirteenth, violations of and University for deprivation of Fourteenth various state Amendment laws, when Officer Wesley Martin tased him five times during a traffic stop for an alleged tag violation. Amended dismissal failure Compla-int on to Georgia Tort (Doc. multiple comply 4C) , Defendants grounds, with Claims Act In lieu of answering Mr. Gibbons' the move including various procedural ("GTCA"), partial immunities, requirements and failure• to upon which the Court can grant relief. for state of the claims For the reasons stated Dockets.Justia.com herein, the Court GRANTS IN PART and DENIES Partial Motion to Dismiss. (Doc. I. A. IN PART Defendants' 42.) BACKGROUND Factual Background Mr. Gibbons, an African-American two small businesses in Augusta, The (Am. instant suit arises out of Police Bureau. The Court owns and operates Georgia — a used car dealership and the cafe-lounge Soultry Sounds. 49.) male, summarizes Compl. Kf 6, 20, 22, two incidents with the GRU each in turn. September 23, 2010 Traffic Stop 1. In the early hours of closed down Soultry Sounds, September 23, 2 010, Mr. Gibbons collected the night's receipts, and left downtown Augusta in a vehicle with a Dollar Down Auto Sales ("Dollar Down") dealer Richmond County, tag to Georgia. (Id. drive to HU 20, his 21, house 23.) in southern While driving on Wrightsboro Road past the Medical College of Georgia,1 Officer Martin stopped Mr. Gibbons his paper dealer tag. because (Id. H1I 25, of an 27, alleged problem with 28.) In response, Mr. Gibbons advised Officer Martin that the tag was valid and showed him the (Id. UK proper 28-29.) insurance Officer verification Martin then and decided Gibbons for driving an unregistered vehicle, 1 The Medical comprising GRU. College of Georgia is one of nine identification. to ticket Mr. but requested that colleges and schools another officer, UK 30, 31.) Martin sign and he Mr. the wanted future. Mr. Gibbons to be able in turn, sign objected, citation because to the ticket. Mr. Gibbons t1 34, 35.) put that his wrists began to bleed. Four days later, Officer made the Officer. Martin also refused. Bennett (Id. tf 37, Police about 38.) Bureau Kymyatta being Police cuffs 14, 39.) 33, allow him to sign on Mr. Gibbons so tightly (Id. Hf 35, 36.) stopped 2010, for a Chief of Public Mr. Gibbons valid filed Skinner, dealer tag. Police for the GRU Safety at Operations conduct an investigation into the (Id. UK 8/ ft but Officer Martin and refused to on September 27, and Director of a the After usnatch[ing] " Mr. Gibbons' William McBride, Turner, stop in (Id. an internal affairs complaint against Officers Martin, and (Id. Officer Martin refused to sign the "Defendants" phone, that Officer. Martin identify Zachary Skinner, (Id. the . citation. requesting Gibbons then changed his mind, another officer, cell Bennett, ^% 32, 33.) (Id. citation and, 34.) Jonathan GRU, Specialist September 23, According to Mr. Gibbons, appointed ("POS"), 2010 to incident. POS Turner had no prior training or experience in internal affairs investigations. (Id. K 40.) Martin POS "did not Turner's break the investigation concluded that Officer 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. On December 1, General dismissed 2010, the the Augusta-Richmond County Solicitor citation issued to Mr. of the September 2010 stop. In and the early Soultry left dealer Gibbons as a result Gibbons closed (Id. f 46.) March 1, 2012 Traffic Stop 2. down (Id. ^f "44, 45.) Sounds, downtown tag hours listing of March collected Augusta to 1, the 2012, Mr. night's drive home Soultry Sounds. receipts in (Id. a and vehicle Ht 48, cash, with 50.) a While driving on Wrightsboro Road at around 3:00 AM past the Medical College " [he] of Georgia, Officer Martin stopped Mr. saw the paper dealer tag." Martin directed Mr. Gibbons (Id. Gibbons Hf 51-53, 64.) to turn onto a because Officer dark side road. (Id. t 64.) Once Officer Martin stepped out of his patrol car, Mr. Gibbons recognized him. (Id. HU 65, 66.) As Officer Martin approached his car, Mr. Gibbons rolled down his window na couple inches," asked if they could proceed to a well-lit convenience store nearby, request paper and upon Officer Martin's assistance dealer before." tag" (Id. ^because and he "had Hf 68-70.) had refusal, been trouble Officer pulled with Martin called 911 over [for] to a [Officer Martin] saw Gibbons Mr. through the window, recognized him from the September 2010 stop, and heard him requesting emergency assistance. Officer Martin began to yell, repeatedly (Id. demanding Gibbons get out of the car and open the door. Officer Martin obstruction, and then announced reached tased Mr. inside Gibbons Martin did not give Mr. (Id. phone with 911 t 79.) cracked times (IdL M in 76, (Id. was rapid 77, arrest side succession, 95, 96, (Id. K 106.) during at 98.) for window, thereby Officer Mr. Gibbons remained least the first trigger pull. Eventually the taser wires disintegrated, transmission of the current. (Id. K 99.) During that trip, stopping The electrodes burned Mr. Gibbons, which resulted in a trip to the hospital. 78, 97.) Mr. Ht 72, 73.) under driver's that Gibbons a warning before deploying the taser as required by policy. on the Gibbons the five delivering 50,000 volts. Mr. HU 67, 71.) (Id. %% Officer Martin "taunted" Mr. Gibbons and "talked about how the officers could keep the cash from his business" that was in his was arrested and jailed. The conduct, second again subsequent car. criminal f 78.) Mr. Gibbons later (Id.) internal carried (Id. investigation out trial by on POS the into Turner, Officer and obstruction that Officer Martin lied on an official Martin's Mr. Gibbons' charge revealed form about Mr. Gibbons' alleged failure to engage him in dialogue during the March 2012 stop. (Id. H 107.) According to Mr. Gibbons, Officer Martin also "perjured himself while trying to justify his stop by (Id. ^ 136.) telling the jury Gibbons had no paper tag at all." 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. *h 104.) This explanation is consistent with the fact that Officer Martin did not identify any safety threats or concerns % 80.) in his police report following the incident. (Id. At the same time, GRU Police Bureau policy forbids using a taser to coerce. (Id. t 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. Mr. Gibbons further alleges that another officer, t 109.) Brian Jackson, likewise perjured himself when he told the jury that Mr. Gibbons "had shot Martin the bird right before and had no tag on his car. the 2012 traffic stop" (Id. fH 139, 140.) POS Turner again found nothing wrong with Officer Martin's actions Martin and not Chief McBride committing any inadvertent trigger pulls." On July 11, 2013, "ratified policy Turner's violations finding and his- about triple (Id^ 1JU 108, 118.) • a Richmond County acquitted Mr. Gibbons of obstruction. Superior •Court (Id. ^ 135.) jury B. Procedural Background On February expiration of the March 28, the 2012 2 014 statute of arrest against Defendants. — definite Procedure (Doc. of 12.) or days prior on claims filed this answering Mr. in pursuant the deficiencies, to § 1983 Gibbons' Federal alternative for to the arising out Defendants moved on July 3, In that motion, pleading two Gibbons In lieu of statement 12(e), only limitations Mr. 272-paragraph Complaint, more — action 31-page, 2014 for a Rule of partial Civil dismissal. Defendants identified a laundry list including that each of Mr. Gibbons' thirteen claims fully incorporated every paragraph that preceded it, and facts some and counts other collectively, in fact claims; double Mr. incorporated Gibbons referred the to preceding Defendants and certain individual Defendants were referenced only in the paragraphs purporting to set forth the underlying facts; and Mr. constitutional Gibbons or did statutory not consistently source of his designate claims, or the if designated, he did not clarify which Defendants were named under that claim. sought, of 3 8 at 6-7.) Shortly thereafter, Defendants and the United States Magistrate Judge granted, discovery motion. (Doc. (Doc. pending resolution of Defendants' a stay dispositive 27.) Mr. Gibbons and Defendants then agreed to extensions of the briefing schedule for Defendants' Rule 12(e) motion. (Docs. 18, 22.) During filed a which the course "Motion to Address urged that attorneys or should individual and contrary 6). he He at Amend, the finally September 30, another waive motion the defenses ripened for either rights on the brief: on and the additionally (Doc. have to 23), (Doc. their 23-1 his 36.) 27, a (Doc. Mr. preemptive supervisory 34.) All these consideration Gibbons Motion liability filed yet for Leave claims, alternative liability; (2) on in Partial to the Motion He also moved for a hearing on all the 2014, required one source of Mr. the (Doc. Court Gibbons to 37.) granted Defendants' re-plead his 12(e) case with (1) law and/or one legal theory upon which he asserts each defendant against whom he asserts liability ori that theory; and (3) the factual allegations basis of each claim against each defendant. it at failed to oppose explicit instructions to clearly specify within each count that in different assert record" Court's granted Defendants' (Doc. October time. Shortly thereafter, aforementioned pending matters. motion Interests" should their appropriate and Court to Dismiss. Oh of Gibbons discovery even though he 2014. focusing event Conflict Mr. also filed an objection to the Magistrate Judge's order motion motions briefing, "Defendants granting the stay of that of did not have a well-pleaded that form the (Doc. 38.) complaint before Finding it from which discovery could proceed, see Carter v. Dekalb Cnty., Ga. , 521 F. App'x 725, Gibbons' 729 (11th Cir. objection to stay. (Doc. "Motion to The Court Conflict similarly of accordingly, premature. After Mr. 10, Gibbons imposition of found Interests," construed as a disqualification motion, and, the Court overruled Mr. the Magistrate Judge's 38.) Address 2013), Mr. the Gibbons' which the Court to be wholly conjectural (Doc. 39.) filed his Amended Complaint on November 2014 — slimmed to 27 pages and 183 paragraphs — Defendants renewed their partial motion to dismiss. is ready for disposition and, for (Doc. 42.) the reasons The motion explained below, is due to be granted in part. II, A. STANDARDS OF REVIEW Motion to Dismiss on Jurisdictional Grounds A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) be either Corp., a 323 motions, Complaint of "facial" F.3d 920, as the Federal Rules of or "factual" 924-25 they relate to because the n.5 attack. (11th Cir. immunity, Court's Civil Procedure may Morrison 2003). v. Amway Defendants' are facial attacks on the resolution of the immunity question does not depend on adjudicating the merits of the case. Haven v. Bd. 213-090, 2014 WL 5872671, Eleventh of Trs. Circuit, of Three Rivers Reg'l Library Sys. , No. the at *3 defense (S.D. Ga. of Nov. sovereign 12, CV 2014)("In the immunity is not merely a defense Amendment subject on sovereign matter at Rule 12(b)(1) merits. immunity An assertion essentially jurisdiction.")(citations marks, omitted); WL 1406415, the Johnson *2 (N.D. v. Georgia, Ga. Apr. of challenges and No. Eleventh a internal court's quotation 1:13-CV-3155-WSD, 9, 2014) 2014 (treating the state's motion to dismiss the plaintiff's § 1983 and state law claims on immunity grounds as a facial attack in the absence of citations to attack on extrinsic evidence by the state) . subject matter jurisdiction, the allegations are deemed presumptively truthful, required merely sufficiently v. a (11th Cir. and basis of United States v. F.3d 1229, Consol. B. look alleged Stalley ex rel. Inc. , 524 to 1233 see if subject In a facial Complaint's and the "court is the plaintiff matter has jurisdiction." Orlando Reg'l Healthcare Sys., (11th Cir. 2008) (quoting McElmurray Gov't of Augusta-Richmond Cnty. , 501 F.3d 1244, 1251 2007)). Motion to Dismiss for Failure to State a Under Federal Rule of Claim Civil Procedure 8(a)(2), a complaint must contain "a short and plain statement of the claim showing that the the pleader is entitled to relief" to give defendant fair notice of both the claim and the supporting grounds. Atl. Corp. defendant's v. Twombly, Rule 550 U.S. 12(b)(6) 544, motion 10 555 to (2007) . dismiss, Bell To survive a therefore, a plaintiff's complaint to right raise a those facts must its face." attacked detailed relief Rule 550 than at an accusation." the more of the 555. unadorned, Ashcroft that Although motion need not the Rule allegations level," and of a be a complaint buttressed cause of by pleading conclusions, 8 pleading and is plausible on plaintiff's labels elements The speculative 570. at than "factual relief allegations, recitation Id. enough above U.S. 12(b) (6) "requires do." more a include "state a claim to factual obligation not to Twombly, by formulaic must and action standard a will "demands the-defendant-unlawfully-harmed-me v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 556 U.S. at 555). 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 entitle him (1957); no see also Kabir v. 2011 WL Marshall to prove 4500050, Cnty. F.2d 1171, must accept construe relief." Bd. 1174 all as of true circumstances Gibson, Statebridge Co., (N.D. Educ. Cir. all reasonable of Conley v. *2 (11th to the- plaintiff. (11th Cir. at set v. Ga. facts Sept. At this in in the Hoffman-Pugh v. Ramsey, 2002) . 11 27, 41, ' 45-46 2011) Cnty. alleged inferences U.S. would No.•1:11-CV-2747-WSD, Marshall 1993)). 355 that Gas Dist.', stage, the light 312 (citing the 992 Court complaint most and favorable F.3d 1222, 1225 C. Qualified Immunity "Qualified government immunity officials offers sued in complete their protection individual for capacities if their conduct does not violate clearly established statutory or constitutional known." (11th 818 Grider Cir. (1982) 2 002)) v. 2010) officials fear of which of a and out suit their is intended liability or harassing the plainly violating the federal for for bad guesses transgressing 14-1962, bright 2015 WL 3937653, Davis v. Hall, 375 F.3d 703, 712 prove authority. 2003) that he Gonzalez (citing Vinyard, establish that they was v. acting Reno, 325 acting 12 800, omitted). allow government duties without or Robinson who (citation is and * [o]fficials they are v. June 29, the protecting one In other words, liable Payton, 2015) No. (citing 2004)). the government official must within F.3d his 1228, 311 F.3d at 1346). were U.S. (11th Cir. Id. (8th Cir. 1254 1346 litigation, law." (8th Cir. To receive qualified immunity, first to in gray areas; at *3 1240, 457 have marks incompetent lines." would F.3d Fitzgerald, discretionary but liable 618 quotation internal quotation marks omitted). are not person 311 F.3d 1340, internal from carry personal knowingly Ala., (quoting Harlow v. immunity all reasonable Auburn, and Vinyard v. Wilson, to suit of City (alteration ''Qualified from rights within discretionary 1234 (11th Cir. "Once the defendants their discretionary authority, that the burden qualified Alexander v. shifts immunity Bostic, (quoting Lumley v. is 458 to the not plaintiff appropriate." F.3d 1295, City of Dade City, (11th Cir. 2003)). 1303 Fla., the Court addresses if true, establish Katz, 533 allegations, Saucier v. construed that a in the demonstrate Gray (11th ex Cir. U.S. light constitutional 2006) 327 F.3d 1186, whether a 194, most right suits immunity pursued inquiry intertwined." 1366 recognized in 2010); claims, and the 201 (2001). plaintiff's to If the violation. the facts, plaintiff, been violated, v. 42 the U.S.C. Rule Inc. (11th Cir. Randall Wooten (accord). under GJR Invs., F.3d 1359, then v. 1998), v. Scott, Campbell, 49 § 1983, 12(b)(6) Cnty. of "the show the Court Escambia, allegations complaint of fact must that determine that those facts, F.3d F.3d 696, 701, 699 contain 709 (11th "specific, enable if proved, the Dalrymple v. Reno, (11th also 2003); see Randall, 13 Fla., 132 (11th Cir. Cir. 1995) from meritless non-conclusory district court to will overcome the defense of qualified immunity." Cir. become overruled on other grounds as 610 will Id. qualified standard In order to protect public officials the 1194 as a threshold constitutional favorable has First, asks whether the right violated was "clearly established." In rel. Courts then utilize a two-part framework to evaluate the qualified immunity defense. inquiry, to 610 334 F.3d 991, F.3d at 996 709-10 ("Pleadings to for § 1983 cases involving defendants assert qualified immunity as a defense shall now be held to comply with the standards described in Iqbal. considering a motion to who are. able dismiss shall A district court begin by identifying conclusory allegations that are not entitled to an assumption of truth — legal allegations."); 1304 (S.D. conclusions must be supported Fla. 2008) ("[A] claim can factual 536 F. Supp. Staco v. Miami-Dade Cnty., by 2d 1301, be dismissed where a plaintiff pleads facts or makes admissions that demonstrate that a defense Marsh v. Butler 2001)). defense is applicable on the face Thus, in a Cnty., " [i]f Rule a Ala., 268 defendant 12(b)(6) of the pleadings.") (citing F.3d 1014, asserts a 1022 (11th qualified motion to dismiss, the Cir. immunity Court should grant qualified immunity if the plaintiff's complaint fails to allege a violation of a clearly established constitutional or statutory right." Ga. , 477 Ala. Williams v. F.3d 1282, State Univ., 1300 102 Bd. of Regents of Univ. (11th Cir. 2007) F.3d 1179, curiam)). 14 1182 Sys. of (citing Williams v. (11th Cir. 1997) (per Ill, Mr. of a DISCUSSION Gibbons has alleged virtually every possible variation § 1983 claim, as well as numerous state law claims, eight named Defendants. At the outset, against for the sake of clarity, the Court outlines what i t understands those claims to be.2 • In Count Martin and I, Mr. liable Gibbons for claims seeks carrying all to out an other hold Officer unlawful Defendants stop were "deliberately indifferent to the need to train Martin that a paper dealer tag, without more, does not authorize a traffic stop" (Am. Compl. 11 58-63); • In Count Martin II, Mr. liable obstruction Gibbons for and seeks falsely claims to hold arresting all other Officer him for Defendants "proximately caus[ed] out of indifference the unlawful stop," and obvious that an unlawful stop would false arrest for obstruction, so each deliberate uit was so lead to a supervisor proximately caused the false arrest of Plaintiff for obstruction by reckless disregard" • In Count III, Martin liable Mr. for deliberate indifference or (Id. 1 93) ; Gibbons seeks to hold Officer the use of any force because 2 It is worth emphasizing at this point that the Amended Complaint was drafted by a lawyer; Mr. Gibbons has at all times been represented by legal counsel. Nevertheless, Plaintiff's recent effort n.2.) as is Defendants point out, "[i]n many still a shotgun complaint." (Defs.' respects, Br. at 1 Mr. Gibbons intersperses new facts throughout the body of the Amended Complaint. Instead of collectively referencing "Defendants" or "Defendant Supervisors" as he did before, Mr. Gibbons simply substitutes a list of all those individuals who are "plausibly supervisors" "even though it is also plausible that . . . they did not have that responsibility." (Am. Compl. H 57.) Moreover, despite the Court's instructions to the contrary (Doc. 38 at 8-9), Mr. Gibbons often includes multiple legal theories within a single count, which only becomes clear in brief. Thus, to the extent the Court's interpretation is inconsistent Court emphasizes that it is not that could be made based upon Corp. v. Dunmar Corp. , 43 F.3d Income Fund, (11th Cir. L.L.C 2002) v. Spear, with the intent of Mr. Gibbons' counsel, the required "to distill every potential argument the materials before it." Resolution Trust 587, 599 (11th Cir. 1995); see also Strategic Leeds & Kellogg (citations omitted). 15 Corp., 305 F.3d 1293, 1296 "Martin did not have probable Gibbons for obstruction" and cause claims to arrest all other Defendants "are liable , as shown by and incorporated herein . . . , because false arrests will highly foreseeably cause force to be used in effectuating the arrest" • (IcL 11 100, 101); In Count IV, Mr. Gibbons alternatively seeks to hold Officer Martin liable for using excessive force if the Court finds there was probable cause to arrest for misdemeanor obstruction and claims all other Defendants "proximately caused due to deliberate indifference the challenged excessive force by failing to train Martin how to appropriately use the taser despite Martin's prior history of excessive taser use" (Id. 1 119); • In Count V, Mr. Gibbons alternatively seeks to hold Officer Martin liable for using excessive force if the Court finds.there was probable cause to arrest for felony obstruction and claims all other Defendants "are liable under deprivation of Gibbons' incorporating by (Id. 11 120-23); • reference In Gibbons Count Martin VI, Mr. liable for § 1983 for the Fourth Amendment right," 23 other seeks retaliating to paragraphs hold Officer against " him in violation of the First Amendment; • In Count Martin, McBride, VII, Mr. Gibbons seeks to hold Officer Officer Jackson, POS Turner, Chief and John or Jane Doe liable "for causing, the obstruction charge, misdemeanor and/or felony, to go to trial, and for a conspiracy to present false evidence during the trial" (Id. 1 130); • In Count VIII, Mr. Gibbons contends "conspiracy to prosecute Plaintiff" "was also meant to chill that . the in Count VII protected First Amendment activity to the right to a fair public trial" (Id. 1 148); 16 • In Count IX, Mr. Gibbons only says, "the same facts underlying Claim I . . . supports a claim for .a deprivation of a First Amendment right of Gibbons' freedom of movement X, Gibbons and travel" (Id. 1 154); • In Count Martin Mr. liable for seeks to hold "unreasonable Officer seizure in violation of ministerial duty" under Georgia law; • In Count XI, Mr. Gibbons seeks Martin liable for false arrest; hold Officer • In Count XII, Mr. Gibbons seeks to hold Martin liable for "abuse during arrest;" Officer • In Count XIII, Mr. Gibbons to seeks to hold Officer Martin liable for "intentionally caus[ing] or attempt[ing] to cause Plaintiff physical injury" pursuant to O.C.G.A. § 51-1-13 and O.C.G.A. § 51-1-14, statutes which define the scope of tort law in Georgia; • • In Count XIV, Mr. Gibbons seeks to hold Officer Martin liable for false imprisonment; and In Count XV, against Jackson, caused Mr. Gibbons states Defendants and a Martin, John criminal or Jane "[t]his claim is McBride, Doe, prosecution to Turner, because be they instigated against Plaintiff under process, out of malice to get a wrongful conviction, prevent a future civil suite [sic], and to cover up their own misdoings" (Am. Compl. 1 178). As Defendants summarize in response, Defendants seek dismissal of all damage claims against any of them defendants of all in their other than claims official [Officer] against them capacity. Martin in All seek dismissal their individual capacity. Defendant Martin seeks dismissal of all claims against him in his individual capacity except for Claims I through V. 17 (Defs.' to Br., Doc. dismiss now 42-1, addresses the 23-24.) articulated standards at 3 n.4, in Part parties' specific Utilizing the motion II, supra., arguments the in Court logical fashion. A. Mr. Gibbons Cannot Sustain Any Claims Against Fictitious John or Jane "As general a permitted 734, 738 in (11th Cir. CV 12, R&R 2012), Actors matter, federal Corr. , No. 5207472 Doe (S.D. rule exists court." 2010); 612-022, Oct. Richardson WL as 22, 5207474, modified, 2012). A "when the plaintiff's is so specific as to be v. pleading Johnson, see also Fitzpatrick v. 2012 adopted Ga. fictitious-party at No. *8 Ga. 1210, No. 598 612-022, 1215-16 In Jane (11th Cir. 8:ll-CV-2521-T-30 May 17, 2012) Doe this 738 description of TBM, 2012 Daleo v. the defendant Barber, at *4-5 and identity. 951 Polk Cnty. 2012 WL 1805501, WL this surplusage,'" (quoting Dean v. 1992)); Sept. limited exception to xat the very worst, F.3d at F.3d Dep't of Ga. thus discovery would uncover the unnamed defendant's Richardson, not 598 (S.D. CV is F.2d Sheriff, (M.D. Fla. (citing Dean, 951 F.2d at 1215-16). case, with any Mr. Gibbons does specificity. not describe In some states that John Doe or Jane Doe is a 18 Doe or instances, he merely "supervisor." (See id. UK 56, 63, 92, 93, 94, 101, 116, 119, 122.) identifies John Doe and Jane Doe as John In the caption, he "officers." (See Am. Compl. at 2. ) In other paragraphs of the Amended Complaint, or Doe Jane "caused were [Mr. "conspired delegated supervisory authority Gibbons'] cause to obstruction malicious the charge" John Doe (id. prosecution" ^ 57), (id. H (id. 130), t 131) , conspired with other officers (id. ^ 146), were aware of certain facts and "engaged in conspiratorial activity" "caused a criminal prosecution" (id. (id. ^ 178) . descriptions and conclusory allegations "do[] revealed" fishing during discovery, expedition placeholders. on These and bare not equate to real possibility that these unknown individuals' be H 15 0), the identities will and the Court will not enable a account of Mr. Gibbons' use of 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." argument (PL's Resp., is unresponsive Doc. to 44, at 25 n.44.) the Eleventh standards for fictitious-party pleading. reflect Mr. Gibbons' in this Gibbons' Circuit's Nevertheless, clear it does understanding of his right to move to join additional parties at the appropriate time, remains Mr. case. Until then, 19 the if any such time Court DISMISSES all claims against John Clerk, as as in this B. well Doe and Jane the parties, Doe. The to terminate Court DIRECTS the them as. Defendants case. Mr, Gibbons Cannot Sustain Any Claims Against Defendants in Their Official Capacities Defendants agents sued argue in immunity under that their the the Board of official capacities Eleventh Amendment Br. at Defendants' indicates clearly that See LR 7.5, he Mr. Gibbons identified does not entitled on to this dismissal on to for monetary for purposes of failed argument oppose are its § 1983. respond issue, these to which grounds-. SDGa. Indeed, Defendants 3-5.) and any of from claims damages and otherwise are not "persons" (Defs.' Regents in in this case, their Eleventh Amendment. Mr. official Gibbons' § 1983 capacities are claims barred against by the The Eleventh Amendment bars suit against a state brought by both citizens of another state and the state's own citizens. 1252, 1256 McClendon v. Ga. (11th Cir. 2001). Dep't of Cmty. State agencies, Health, 261 F.3d like the Board of Regents of the University System of Georgia, share this Eleventh Amendment Auth., 713 F.2d 1518, of Univ. App. immunity. Sys. 2013) . of Ga. See Fouche v. 1520-23 v. Island-State (11th Cir. 1983); Barnes, By extension, Jekyll 743 S.E.2d 609, Bd. of Regents 611 the Eleventh Amendment 20 Park (Ga. Ct. a:lso bars § 1983 lawsuits capacities, the real 1490, "state in interest. (11th Cir. officer" immunity, of State," 2003) 425, 429-30 the Officer A v. State defendant v. There Defendants to the Lee, 338 is no (Wesley and POS members of the GRU Police Bureau, in Eleventh an 1308 v. Doe, (11th McBride, Skinner, (Ernest Black, their and 519 U.S. Chief Zachary "arm agents 1304, that F.3d labeled a acting as of Cal. dispute 49 receive F.3d Martin, Turner, Ala., state's the Supervisor Defendants Maxwell), official need not be official" includes Manders their of instead need only be which (1997)). in the state is considered to be (citing Regents of the Univ. Brian Jackson), Eugene officials Cross "state but instrumentalities. Cir. 1995) . or Amendment the state because in such cases, party 1503 against official Jr. and and roles as constitute "state officers" or "state agents" entitled to Eleventh Amendment protection. Moreover, plaintiff must in order to succeed on a § 1983 of Opa-Locka, (emphasis added). U.S. 58, 70-71 "a show that he or she was deprived of a federal right by a person acting under color of state law." City claim, 261 F.3d 1295, 1303 (11th"- Griffin v. Cir. • 2001) In Will v. Mich. Dep't of State Police, (1989), the Supreme Court held that 491 neither a state nor' its officials acting in their official capacities are "persons" under § 1933. McBride, Therefore, Mr. Gibbons cannot sue Chief the Officer Defendants, 21 the Supervisors Defendants, or POS Turner in damages, .and DIREQTS their those official claims the parties .to capacities are. due amend the to be insofar caption in he seeks The DISMISSED. Court all ,filings going forward. C. as , :. Mr. Gibbons Failure to Comply with the GTCA Bars His State Law Claims The GTCA sovereign its provides immunity. sovereign provided § 50-21-21(a) within the a O.C.G.A. immunity in for this only limited waiver § 50-21-23(b) to the extent article . . . ."); of ("The and the state in see State's waives the also manner O.C.G.A. ("[T]he state shall only be liable in tort actions limitations of this article and in accordance with the fair and uniform principles established in this article."). In order certain to effectuate prerequisites. this waiver, O.C.G.A. plaintiffs § 50-21-35 must satisfy provides in pertinent part: In all civil actions brought against the state under this article, to perfect service of process the plaintiff must both: (1) cause process to be served upon the chief executive officer of the state government entity involved at his or her usual office address; and director of Department of (2) cause process to be served upon the the Risk Management Division of the Administrative Services at his or her usual office address. Id. The procedural components terms, are strictly construed. of the GTCA, like its other Green v. Cent. State Hosp., 22 621 S.E.2d 491, of Corr., In the (Ga. Ct. App. 503 S.E.2d 597, this second Division 494 of case, 598 contend Mr. Gibbons been served at all. Mr. Gibbons' failure director of of the Administrative (Defs.' to Ga. Pep' t 1998)). the Department (citing Curry v. (Ga. Ct. App. Defendants requirement: the 2005) Br. at respond 10 did Risk not Management Services has (citing Docs. to 7, Defendants' identified argument on this point again indicates meet not 8).) clearly that he does not oppose dismissal on these grounds.3, 4 See LR 7.5, SDGa. Failure to Administrative serve the Services, director Risk of Management the Department Division of precludes compliance with the condition precedent to waiver of sovereign 3 Mr. Gibbons also did not respond to Defendants' argument that he failed to comply with § 50-21-26(a)(4), which mandates that "[a]ny complaint filed pursuant to [the GTCA] must have a copy of the notice of claim presented to the Department of Administrative Services together with the certified mail or statutory overnight delivery receipt or receipt for other delivery attached as exhibits." Id. (emphasis added). Failure to cure this defect within thirty days after the State raises the issue "shall result in dismissal Id. (emphasis added). Neither Mr. Gibbons' original without prejudice." Complaint (Doc. 1) nor his Amended Complaint (Doc. 40) addresses in any form his compliance with the GTCA's service and notice requirements. Mr. Gibbons had until March 31, 2012 to file the notice of claim and delivery receipt, which he did not do. Accordingly, § 50-21-26 (a) (4) provides an independent ground for this Court's DISMISSAL of Counts X, XI, XII, XIII, XIV, and XV. 4 Mr. Gibbons' broad claim, again buried in a footnote, that he "was not required to comply with the notice provisions" of the GTCA because he is suing Defendants uas individuals acting outside of the scope of their official duties and employment" is wrong. (PL's Resp. at 25 n.43.) The GTCA is the exclusive remedy for any tort committed by a state officer or employee. O.C.G.A. § 50-21-25(a). Those officers' or employees' immunity is lost only wif it is proved that [their] conduct was not within the scope of his or her official duties or employment." Id. (emphasis added). Mr. Gibbons may not sidestep the GTCA's procedural requirements armed with nothing more than mere allegations that Defendants, who engaged in certain conduct as police officers, "stepped outside" the scope of their authority. (PL's Resp. at 22-25.) To hold otherwise would defeat the purpose of the GTCA and eviscerate the limited waiver of immunity. 23 immunity and renders void Mr. Gibbons' statute of limitations is not tolled.5 94; see also Henderson v. (Ga. 1996) ; (Ga. Ct. service XII, in XIII, The law 2001) . some XIV, on the of March 1, 2014 2012 arrest) on Gibbons July of When limitation expires, 5 In 2007, v. 621 S.E.2d at 493S.E.2d 614, 615 555 S.E.2d 741 DISMISSES 11, as expired (Claims on X X, 2 013 is 2 015 based XI, See accomplished after the case here, the statute only upon a state on Mr. (Claim XV based acquittal) . would be in which i t held, Gibbons' XIV O.C.G.A. the statute the timely- showing that the the Georgia Supreme Court decided Georgia Summer1in, 740, Counts Mr. — and July 11, service filed complaint tolls Bd. the 475 Transp., Court limitations March 1, § 50-21-27 (c). that and XV of Mr. Gibbons' Amended Complaint. Gibbons' Mr. such Although a plaintiff may cure ineffective instances, statute claims Green, Dep't of Transp., Sylvester v. • Dep'.t of App. action Pines Cmty. without overruling prior precedent, Serv. that u[t]he service of process provision of the Georgia Tort Claims Act is procedural in nature, not jurisdictional." 647 S.E.2d 566, 570 (Ga. 2007). At issue in Georgia Pines was who must § 50-21-35. More specifically, the Court have the summons and complaint handed to state government entity involved and not other agency employee in order to perfect Pines, 647 S.E.2d at 568. In the end, be served and how under O.C.G.A. considered whether a plaintiff must the chief executive officer of the to an administrative assistant or service for GTCA purposes. Georgia the Supreme Court affirmed the Court of Appeals' decision that service on the personnel manager was proper by way of the Civil Practice Act and, in any case, the defendant waived any service of process defense it may have had by its own actions during discovery. Id. at 567, 569. Although the "procedural, not jurisdictional" language in Georgia Pines is appealing, the Court finds it does not apply in a case like this where no service of process occurred on one of the necessary parties. To excuse as a mere procedural technicality Mr. Gibbons' failure to serve process on the director of the Risk Management Division of the Department of Administrative Services, especially where Defendants contested this failure at the first opportunity and consistently thereafter, would render a nullity the GTCA's service of process requirement and limited waiver of sovereign immunity. 24 plaintiff service Corr., v. acted as reasonably quickly as 486 598 S.E.2d 16) their (Ga. v. effecting Georgia 1998) Ct. Mr. the Gibbons' Department Division, motion to See Curry, of App. 1997)). dismiss Mr. 2014 when (Doc. at 15- (Defs.' 2014 12 Br. failure to effect service on the director of Administrative Services, Risk Management for over a year after filing the complaint, knowing of Defendants' precludes Dep't the service defect on July 3, first proper (citing Patterson and received renewed notice on December 1, at 10) . of filed 661 in Curry (Ga. Ct. App. 660, Gibbons became aware of Defendants diligently possible. 503 S.E.2d 597, Johnson, and attack him on from the sufficiency establishing 503 S.E.2d at 598-99. lack of of service fault of for process, the delay. 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. D. Defendants' 12(b)(6) Challenge to the Federal Counts Counts I through V: Unlawful Stop, False Arrest, and 1. Excessive Force All Counts I Defendants through V except for relief can be granted.6 Officer Martin failure to state seek a dismissal claim upon of which Within these counts, Mr. Gibbons seeks to hold the Board of Regents liable prospectively for " [t]aser 6 Officer Martin also does not claim entitlement to qualified immunity at this stage. (See Defs.' Br. at 3 n.4, 23-24.) 25 training and supervision, adequate internal and officer misconduct supervision, investigation and training for the manner in which officers are to respond to persons with paper, tags, and office retention and termination policies" t 16) or dealer based on facts scattered over 101 paragraphs.7 the same against facts, five Mr. additional Black and Maxwell, unclear — even specifically expressly Gibbons also Defendants the challenged advanced by (Chief to Based on assert claims McBride, Supervisors and Officer Skinner). POS Turner, after attempts (Am. Compl. It remains original and Complaint's the opposing qualified counsel sufficiency was immunity — upon defense what legal theories relief is sought and in what specific manner these five Defendants acted Notwithstanding or the failed to act. persistent (See Defs. ' deficiencies,8 Br. it is at 1-3.) incumbent upon the Court to identify the precise constitutional violation charged and discussing explain liability in 738 F.3d 1246, 1250 what this (11th Cir. the violation § 1983 2013) suit. requires Franklin v. (citing Baker v. before Curry, McCollan, 7 Neither party addresses Mr. Gibbons' claims against the Board of Regents, whose name appears only twice in the Amended Complaint. (Am. Compl. 111 8, 16.) 8 The Circuit's Court advises Mr. Gibbons' counsel to meditate recent decision in Weiland v. Palm Beach Cnty. over the Eleventh Sheriff's Office, No. 13-14396, .2015 WL 4098270 (11th Cir. July 8, 2015), especially its discussion of the four sins of shotgun pleading. Armed with Weiland's clear roadmap, 2015 WL . 4098270, at *5 & n.10, the Court warns.Mr. Gibbons.^ counsel, for the last time, that these are the 'standards to which his pleadings will be held in all cases filed with this Court moving forward. v. Augusta, No.' CV 114-110, 2015 WL 800206, 2015). 26 See also Pearson at *1 n.l (S.D. Ga. Feb. 24, 443 U.S. 137, 140 (1979)); 2:13-CV-02108-WMA,. 2014 WL Tolbert 3892115, at v. *2 Trammel1, (N.D. Ala. No. Aug. 4, 2014)' ; To narrow down this task, the II and III against Chief McBride, POS Turner, Count II and Officer contends Mr. Court first DISMISSES Counts Supervisors Black and Maxwell, Skinner for Gibbons' failure arrest for to state a obstruction claim. lacked probable cause and that "it is obvious that an officer will need to be trained to not make the unlawful stop in the first place in order (Am. to avoid Compl. allegations facts to against Turner, H Moreover, a 92, for away 93, 94), supervisory McBride, Officer arrest Stripping Ht 89, support or false 89.) (id. Chief a Mr. Gibbons' liability related obstruction." conclusory there are no well-pleaded Supervisors Skinner perceived claim Black to the any kind Maxwell, and of POS obstruction arrest. Officer Martin's alleged disagreeable disposition (id. HH 90, 91) simply is not a matter of constitutional concern. Count Martin traffic did III is not stop or based have the on Mr. Gibbons' probable arrest cause an- illegal stop or however,] arrest to make for obstruction, could not use any degree of force. this Circuit's law[, assertion that the and Officer challenged accordingly (Am. Compl. ^ 100.) "Under ... a claim that any force in is excessive is subsumed in the illegal stop or arrest claim and is not a discrete excessive 27 force claim." (11th Cir. Bashir v. 2006) Rockdale Cnty., 445 (emphasis and citation omitted). Claim III fails as a matter of law.9/10 Mr. Gibbons F.3d 1323, intends Moreover, 1331-32 Accordingly, to the extent to append a supervisory liability to Count III, it is inadequately pleaded. The sole allegation related to Chief and Maxwell, McBride, Officer Skinner reference that Defendants Gibbons' Supervisors "are Fourth is lead an to liable Black endless the following under Amendment § right contends Officer Martin tased Mr. for arrest, force to be maze for Turner, and incorporations legal 1983 as of POS conclusion: the claimed in these deprivation f 100," by of which Gibbons without probable cause "because false arrests will highly foreseeably cause used in effectuating the arrest." (Am. Compl. H- ioi.) That leaves Count I, as well as Gibbons frames in the alternative Counts IV and V, to later finds that Officer Martin made misdemeanor or felony obstruction. 9 The Court also DISMISSES Count III on this same ground. io III lawful arrest As the if Court the Court for either did above, as asserted against Officer Martin "This is not to say that [Mr. Gibbons] force used in his arrest" a Count which Mr. cannot recover damages for the if the Court later finds the arrest was unlawful. Bashir, 445 F.3d at 1332. "To the contrary, the damages recoverable on an unlawful arrest claim 'include damages suffered because of the use of force in effecting the arrest.'" Id. (citing Williamson v. Mills, 59 (11th Cir. 1995) and Motes v. Myers, 810 F.2d 1055, 1987)) . 28 65 F.3d 155,1581059 (11th Cir. stripping away Mr. Gibbons' conclusory allegations, remaining counts appear to hinge only on the following: (1) Defendants McBride, position and rank, Black, based and Maxwell, on are plausibly supervisors who had the responsibility or had been delegated the responsibility to correct, train, or retrain officers who deprive citizens of constitutional rights, even though it is also plausible that with respect to McBride, Black and Maxwell they did not have that responsibility or delegated it to one of the other Defendants including John or Jane Doe (Am. Compl. U 57 (emphasis added)); (2) Defendant Skinner is plausibly a direct supervisor of Martin based on his signature as Martin's supervisor on a Taser use of force report concerning an incident on 09-09-11, even though it is also plausible that Martin's direct supervisor Skinner is not because John or Jane Doe is his supervisor" (Id. % 57) ; (3) Officer Martin stopped Mr. Gibbons in September 2 010 solely for having a paper tag and the charges ultimately were dismissed, facts his supervisors "must have known" (Id. %^ 44, 58-62); (4) During the September 2010 traffic stop, Martin and Skinner cuffed Mr. Gibbons that his wrists bled (Id. f 36) ; Officers so tightly (5) Officer Martin was not sanctioned or punished as a result of the September 2010 traffic stop (Id. H 45); (6) Officer criminal Martin's trial testimony on the during March Mr. 2 012 Gibbons' obstruction charge revealed that "GRU officers regularly pulled over cars because they had a paper tag, without more, making the citizen produce paper and often charging them with improper registration or no tag" (Id. f 47 (emphasis added)); (7) "Before [Officer] Martin's 2012 stop of Gibbons, none of the Defendant Supervisors . . . trained 2 9 the or informed Martin that a paper tag without more does not authorize him to conduct a traffic stop" (Id. H 56); (8) " [B]efore March 1, 2012, Gibbons [sic] had numerous encounters with citizens revealing a tendency to overreact and fail to reasonably communicate with citizens, that Martin caused to escalate to the point where he unlawfully justified his use of force" (Id. t 91); (9) "Defendant Supervisors . . . knew . . . of [Officer] Martin's tendency to overreact and fail to reasonably communicate, yet failed to take corrective action including either training, transferring or terminating him, as shown by [Officer] Martin's continued employment" (Id. 11 94); (10) * [POS] Turner who had had no training relative to conducting an investigation found nothing wrong with [Officer] Martin's actions during the 2012 stop of Gibbons, despite the several policy violations readily discernible from [Officer] Martin's incident" (11) admissions and the video of the (Id. t 108); "[POS] Turner incompetently believed [Officer] Martin's story about inadvertently pulling the trigger by failing to compare [Officer] Martin's story to the video of the incident" (Id. f 111); (12) " [POS] Turner passed on her finding, that [Officer] Martin did nothing wrong in the challenged accident, to the chief of the entire department, Chief McBride, who reviewed it and did not object" (IcL t 114); and (13) "[u]pon information and belief, [Officer] Martin has prior incidents of use of the taser that is or could be excessive, based on the high frequency of use" (Id. ^ 115) . Mr. Gibbons does not allege that Chief McBride, Black and Maxwell, Officer Skinner, 30 and POS Turner Supervisors personally participated arrest, in or otherwise the unlawful or use of excessive force in March 2012. allegations above and Mr. Mr. ordered Gibbons' briefs, stop, Thus, false from the the Court understands Gibbons to claim that these Defendants did nothing by way of training or supervision to ensure that Officer Martin no longer (1) used initiated stops excessive carrying out solely on the basis force stops — or specifically, arrests. of a paper tag or "excessive Because Mr. tasing" Gibbons' Amendment claims are asserted against these Defendants capacity as deciding — supervisors, that Officer Amendment rights. the Court Martin will violated See Dalrymple, assume Mr. — — in Fourth in their without Gibbons' 334 F.3d at 995 (2) Fourth (articulating the methodology for resolving claims of supervisory liability); McDaniel *15 v. (N.D. whether Yearwood, Ga. Feb. [these No. 16, 2:11-CV-00165-RWS, 2012). Defendants'] "The at *15 WL question 'supervisory alleged deprivation of those rights." 2012 then actions7 McDaniel, 526078, at becomes caused the 2012 WL 526078, (citing Gonzalez, 325 F.3d at 1234). a. The Legal Standard for Supervisory Liability Claims It is well-established that supervisors are not subject to § -1963 liability under vicarious liability. 1047 (11th Cir. 2014) theories of respondeat superior or Keith v. DeKalb Cnty., Ga., 749 F.3d 1034, (citing Cottone v. 31 Jenne, 326 F.3d 1352, 1360 (11th federal their Cir.. 2003)). supervisors- law and be held individually liable subordinates participates there Instead, is in a only the alleged causal supervising Id. quotation marks the and (quoting Cottone, omitted). A connection by alleging that: supervisor . personally between the violation the of the (internal establish a a history of when constitutional 326 F.3d at 1360) can or actions alleged plaintiff (1) violate for the conduct of constitutional connection official deprivation." "when can causal 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 from doing so. Cir. 2009) Cir. Williams v. Santana, 340 F. App'x 614, 617 (11th (citing Mathews v. Crosby, 480 F.3d 1265, 1270 2007)); 5:12-CV-148 2013). stop them see MTT, "The also 2013 Easley WL v. 5592514, deprivations that Macon at *2 Police (M.D. constitute Dep't, Ga. Oct. widespread (11th No. 10, abuse sufficient to notify the supervising official must be obvious, flagrant, rampant and isolated occurrences." Brown v. Crawford, 906 of continued Santana, F.2d 667, 32 340 671 duration, F. App'x at (11th Cir. rather 617 than (quoting 1990)). "In short, the standard by which a supervisor is held liable in his individual extremely capacity for rigorous." the Keith, actions 749 of F.3d at a subordinate is (citation and 1048 internal quotation marks omitted). Mr. — that Gibbons' Chief Skinner, claims for relief in Counts McBride, Supervisors Black I and Counts and Maxwell, IV/V Officer 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 (alteration, come citation, into contact." and Keith, 74 9 internal quotation F.3d at marks 1052 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 measures, on notice . . . and when result in the the need for the failure to train corrective is likely violation of a constitutional right." 2012 WL 526078, F.3d 1390, of at *16 1397-98 (quoting Belcher v. (11th Cir. 1994)). McDaniel, City of Foley, "Thus, to a 30 plaintiff alleging a constitutional violation premised on a failure to train must demonstrate that- the supervisor had xactual or constructive notice that a particular omission in their training 33 program causes constitutional [his rights,' supervisor chose F.3d at 1052 or to her] employees and that to violate armed with that retain that knowledge training program." (quoting Connick v. Thompson, citizens' the Keith, 131 S. Ct. 749 1350, 1360 (2011)). b. As Analysis a preliminary matter, supervisory Maxwell, liability Officer the claims Skinner, Court DISMISSES against and POS Mr. Supervisors Turner. Black With have alleges known" about that because the (1) of their "regular vehicles based on paper tags, (2) to Mr. Gibbons titles, practice" and respect Supervisors Black and Maxwell and Officer Skinner, essentially Gibbons' "must they of stopping internal affairs complaints filed against Officer Martin, and (3) dismissal of Mr. Gibbons' citation in 2010. (Am. Compl. HI 59-61 (emphasis added).) only in allegations excessive force conclusory. relation that (See to involve Am. Officer these Compl. Martin's Defendants f 116 The use are of wholly ("Defendant supervisors . . . are liable under § 1983 for the deprivation of Gibbons' Fourth Amendment right as claimed in H 113."); ("Defendant deliberate failing supervisors . . . proximately indifference the challenged caused excessive to train Martin how to appropriately 34 use K 119 due to force by the taser despite Martin's prior history of excessive taser use."); ("Defendant supervisors . . . are deprivation of Gibbons' Fourth liable under Amendment § right 1983 as H 122 for the claimed in 1 121).) Simply, of [these their Mr. Gibbons Defendants'] personal Martin], "alleges nothing about the significance titles, interactions their length of [or] were or Indeed, with . . . , [Officer their management policies, deliberately indifferent the manner roles or that would bear on whether they knew conduct and the risk he posed." 52. individual familiarity service, any other characteristics about their in to [Officer Martin's] See Franklin, which Mr. 738 F.3d at 1251- Gibbons first identifies these individuals as "supervisors" reflects that he simply does not know any details Compl. 57 ("Defendants . . . Black [] H about their responsibilities. and (See Am. 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 supervisor based of Martin on his signature . . . [,] even though it is also plausible that Skinner is not Martin's direct supervisor.").) "Far from pleadings, this admission conclusion" that Mr. Gibbons' excusing only [his] reinforces insufficient [the Court's] claims against them are due to be dismissed, as there are no individualized allegations from which 35 the Court could infer their subjective awareness of the risk of harm that Officer Martin purportedly posed and that each of them exhibited deliberate indifference sufficient to claim. Keating v. (quoting City Miami, 556 U.S. Supervisors Gibbons' does supervisor. appointed a of Iqbal, Unlike Mr. state not Rather, POS Franklin, 598 738 753, own F.3d 763 at (11th actions 1252 Cir. n.6; 2010) at 676). Black and Maxwell allege Mr. Turner F.3d his through outright Gibbons to and Officer Skinner, that asserts undertake POS Turner that the Chief internal was McBride affairs investigation of Officer Martin's conduct in 2010 and 2012, Turner had no and that Chief training other to internal POS investigations, McBride previously selected a parking attendant to carry out such work. only respective a relevant, (Am. Compl. fH 39-41, 108, 111.) non-conclusory allegations are that The POS Turner passed on her findings to Chief McBride and Chief McBride ratified those findings. the fact that POS (Id^ KH 44, 114, 118.) Turner investigated Thus, based on Officer Martin, Mr. Gibbons contends POS Turner "was deliberately indifferent to the need to train Martin, or cause Martin to be appropriate supervisor, that a paper dealer tag, does not authorize a traffic stop" and to deliberate indifference the 36 trained by the without more; "proximately caused due challenged excessive force by failing to train taser,. . . ." how to appropriately likewise claim. Not finds these allegations only does Mr. Gibbons GRU from which the Police institute the Bureau Court chain corrective could infer that of command measures or or to allege that there are no other POS had make insufficient to fail POS Turner is a supervisor of Officer Martin, facts use (IcL t1f 62, 119.) The Court state a Martin Turner is any in the authority recommendations to with respect to Officer Martin's behavior beyond passively reporting the results of her investigation to Chief McBride. for supervisory liability against POS Turner, The claims therefore, are also DISMISSED. The McBride, Court now turns to the last man standing, Chief 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. most favorable to Mr. Viewing the facts in the light 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 indifference. 37 raise an inference of With respect surrounding that the Officer account to traffic Martin of Mr. his Gibbons' stop, pulled failure the Amended to train Complaint Gibbons over tag, over the approximately eighteen months. reflects solely on twice, dealer paper Mr. claim course of Chief McBride knew that Officer Martin had done so as a result of an investigation into the 2010 stop, carried McBride Martin cars and also out by POS ultimately explained Turner approved that GRU by the direction Chief at of McBride. Chief Officer regularly pulled officers solely because they had a paper tag. over Chief McBride then purposefully selected an incompetent investigator in 2010 so as to clear Officer Martin of any wrongdoing. dismissal nearly of Mr. Gibbons' 2010 identical unlawful stop charges in Lastly, post 2012, Mr. despite the investigation, Gibbons' internal complaint with the GRU Police Bureau, and Mr. subsequent acquittal on charges stemming from the a renewed Gibbons' 2012 stop, Chief McBride retained Officer Martin on the force. Similarly, with respect Mr. Gibbons' failure to train claim surrounding Officer Martin's use of excessive force, the Amended Complaint reflects incidents of force approximately that Officer during eighteen Martin traffic months: was stops Mr. involved over Gibbons the was in two course cuffed of too tightly by Officers Martin and Skinner in September 2010 and Officer Martin tased Mr. Gibbons 38 five times in March 2012. Chief McBride cuffing knew because the of the complaint filed by Mr. Chief McBride's before March citizens caused 2012 stop resulted internal Mr. Gibbons Martin a tendency to had to the point further "numerous where he alleges that encounters with unlawfully force," frequency," statistics about which were reported As in incompetent severe affairs overreact . . . that his use of n.8). in Gibbons and investigation carried out at Officer escalate 2010 previously-described direction. revealing to September Martin justified and he used his taser with alarmingly "high 2010, Chief investigator in McBride 2012, (Doc. 19 at 11 purposefully whose results selected Chief an 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 improved training or supervision. whether Chief Martin when McBride's faced with failure (1) a notice of the The question is, to train significant, or need therefore, supervise but for single Officer concrete complaint about an unlawful stop carried out by Officer Martin during which Mr. (2) Gibbons was cuffed to the point of bleeding; testimony that suggests GRU Police Bureau "regular" officers had a practice of stopping citizens for paper tags during 39 the relevant time period;11 of taser use; and (4) (3) Officer Martin's high frequency and Officer Martin's "numerous" confrontations with the public constitute a as to which Chief McBride The Court showed deliberate concludes that Mr. pattern of behavior indifference. Gibbons' allegations narrowly sufficient to survive a motion to dismiss. rare case citizen in which and same same the the conduct law recurred enforcement escalated are This is the between same which officer, the was investigated by the same individual at the direction of the same superior, and violation of allegations McBride this recurrence constitutional as true, — as the a September 2010, approval of department's of Officer (Count I), and the rights. reasonable head investigation into Mr. allegedly of the ultimate resulting Accepting jury could department, Gibbons' resulted the infer that Chief of the complaint in with respect to report and maker investigative the foregoing initiator specific internal decision in the response thereto — knew or should have been aware Martin's and other deputies' stops for paper tags as well as Officer Martin's use of unreasonable force (Counts IV/V). See, e.g., Gonzalez v. Israel, No. 15-CIV-60060, 11 The Court recognizes that Officer Martin's testimony about this practice is temporally problematic; it was elicited during Mr. Gibbons' July 2 013 criminal trial for obstruction, more than 15 months after the traffic stop during which Mr. Gibbons was tased. Although the testimony itself could not have put Chief McBride on notice of Officer Martin's unlawful practices in time to prevent the March 2012 stop, from the substance of the testimony, as alleged, a jury could infer that the practice was systematic and ongoing at the time of and before the March 2 012 stop, knew or should have known about i t . 40 and Chief McBride, therefore, 2015 WL 1143116, at *14 (S.D. Fla. Mar. 13, 2015) (finding the plaintiff's allegations — a "string of facts to effect that was unqualified for his position" officer] previously engaged in activity identical [the and that the officer to that complained of by the plaintiff — sufficient to survive a motion to dismiss on his municipal liability claim supervise); Hooks v. Rich, n.6 (S.D. Ga. Mar. * [r]epeated abuse constitute a Pittsburgh, 89 complaints the F.3d jury to officer's a pattern (noting, of 972-73 to train 2006 WL 565909, may (citing (3d Cir. involving be or at *4 in the § 1983 context, officer abuse" officer failure CV 605-065, single 966, an arresting citizens for 7, 2006) by about No. for that sufficient Beck 1996) v. City to of (finding prior violent behavior in identical to those at issue were sufficient infer that municipality had knowledge of :that propensity for misbehavior and could support the conclusion that municipality had a pattern of tacitly approving the use of v. excessive force) )) ; Wilson ex rel. Miami-Dade (S.D. Fla. Cnty., Sept. 19, No. 04-23250-CIV, 2005) 2005 Estate of WL 3597737, Wilson at *4 (denying county's motion to dismiss where the plaintiff alleged that it was aware of other incidents of similar conduct by an individual employee that supported a theory that there was a failure to supervise that employee); see also Geist v. Ammary, (E.D. Pa. Dec. 20, No. 2012) CV 11-07532, (finding 41 2012 §1983 WL 6762010, claims, at ~*7 based- on failure . to pleaded train where and the deliberate plaintiff indifference, alleged that the sufficiently city. provided a particular officer a taser despite inadequate training and with actual notice past). Cf^ 1044175, at that the Sigler *3 officer had. used v. (S.D. Bradshaw, Fla. excessive force No. 10, Mar. 13-80783-CIV, 2015) in the 2015 WL (dismissing the plaintiff's claim that state agency violated her constitutional rights by failing to properly train one specific investigator because she failed to allege any other misconduct apart from her own situation; such an "isolated occurrence" did not put the agency on notice of an omission in its training program); Owens v. (S.D. City Fla. of 2001) Fort (granting the the plaintiffs' way of a Lauderdale, claim failure to 174 F. Supp. 2d city's motion for that it was train on 1282, summary judgment on deliberately the use 1297 of indifferent chokeholds by because plaintiffs presented only two similar, unsubstantiated previous incidents, the thereby failing to present kind of pattern or series of violations which would place the city on notice that its training program was inadequate) ; Dowde11 v. Chapman, Supp. 533, 546 (M.D. occurrence . . . cannot Ala. be 1996)("[A] the basis single of a and viable 93 0 F. isolated action predicated on § 1983 because such an unusual occurrence does not rise to the level of xdeliberate 42 indifference' necessary to succeed on a claim for failure to adequately train police officers.") . These findings, however, do not end the Court's inquiry, as Chief McBride argues that he is entitled to qualified immunity. Although Chief alleged, McBride's to train or supervise, could constitute a constitutional violation, must still evaluate were within his violation Sipple, failure was (1) the Court whether his challenged acts or omissions discretionary authority and clearly as established at (2) the whether such a time. Maggio v. 211 F.3d 1346, 1350 (11th Cir. 2000). Whether Chief McBride Acted Within His i. Discretionary Authority "A government purview of his official proves that he acted within discretionary authority by showing the xobjective circumstances which would compel the conclusion that his actions were undertaken pursuant to the performance of his duties and within the scope of his authority.'" F.2d 1531, 1537 (11th Cir. F.2d 1558, 1564 (11th Cir. Ga. , 890 F.2d 396, rel. 2014) Hatcher v. 404 Fusco, 1990) Hutton v. Strickland, 919 (quoting Rich v. Dollar, 841 1988)); Hudgins v. (11th Cir. 570 F. 1989)); App'x 874, City of Ashburn, see also Hatcher ex 877 n.3 (11th Cir. ("In the qualified immunity context, a government official acts within the scope of [his] discretionary authority when [he] pursues a job-related goal through means that are within [his] 43 power to utilize." 370 F.3d 378 1252, F.3d 1265-66 1201, discretionary activity (citing Holloman ex rel. 1205 a in a 2 004) of Crosby v. 2004))); Cir. inquiry part responsibilities"); Cir. (11th authority "is (11th Cir. (11th Holloman v. Harland, 2004) looks, to his O'Rourke Hayes, (explaining whether job-related Monroe Cnty., v. 394 the defendant's powers and F.3d 1328, 1332 (uTo determine whether an official was engaged discretionary function, we consider whether the acts the official undertook are of a type that fell within the employee's job responsibilities."). 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. f 7.) subordinate officer, citizen complaint, As Defendants point out, * [s]upervising a assigning an investigator to investigate a investigating a citizen complaint implementing a policy . . . , and training officers all job related functions" that Chief McBride , . . . are 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, 1036, e.g. , Daniels v. 1057 City of Hartford, (M.D. Ala. 2009) Ala., 645 F. Supp. 2d (noting "courts have uniformly held 44 that supervision officers of [sic] authority" of is sheriffs); (finding Herrick v. at *9 Langley Btesh v. was WL officers is aff'd sub nom., Ga. 20 09) acting training of within City 3269647, chief's Carroll Cnty., (N.D. and activity 2011 police supervise police authority"), jail an 6:10-cv-71-ORL-19DAB, 2011) a of at "alleged corrections the discretionary Maitland, *37 n.34 failure No. within his is no (M.D. train No. Fla. and discretionary (11th Cir. 1:09-CV-0161-JEC, ("There Fla., to a matter within his 471 F. App'x 883 of 2012); 2009 WL 3094843, question that discretionary Sheriff authority in training and supervising his subordinates . . . ."). ii. Whether Chief McBride's Actions Violated Clearly Established Constitutional Law The Supreme Court has a constitutional right emphasized that was clearly "determining whether established 'must undertaken in light of the specific context of the case, a broad general proposition.'" Vinyard, (quoting Saucier, 533 U.S. at 201) . 311 F.3d The relevant, be not as at 1349 dispositive inquiry is "whether it would be clear to a reasonable officer that his conduct Saucier, 533 U.S. state of the law his Hope, conduct was at 202 his at 740. in the (emphasis . . . gave deprived 536 U.S. unlawful situation added), [the officer] victim of a and confronted," "whether 'fair warning' constitutional See also Oliver v. 45 he Fiorino, the that right," 586 F.3d 898, 907 inquiry (11th as reasonable violates Cir. 2009) whether it (framing would officer- would [a quotation that right") omitted). "clearly "sufficiently understand Constitutional], marks be the In established" clear what he (citations most is and cases, that a doing internal fact-specific precedents are necessary to give an officer fair warning of the applicable (11th law. Cir. Eleventh 2 014) Circuit know that his 907 See Jay v. ("We (describing to evaluate conduct have terms, has not almost always said many staked protects Mattox, plaintiff may broader, facts also the two whether a 579 times out a the that case meet his burden by law, (quoting the would 586 F.3d at in factual immunity Priester v. (11th Cir. 2000) (11th Cir. showing 1997) )) . (1) A "that a clearly established principle should control the novel in exception this of situation" conduct or which (2) so "this case fits within obviously1 violates constitution that prior case law is unnecessary." 1159 (11th Cir. "Furthermore, to decide the the [the] Keating, F.3d at 766 (quoting Mercado v. City of Orlando, Fla., 1152, 951 by officer qualified Fla., 208 F.3d 919, 926 1419 used Oliver, line, defendant.'" 127 F.3d 1416, App'x 948, reasonable 'if bright F. methods is unconstitutional); City of Riviera Beach, and Smith v. Hendershott, 598 407 F.3d 2005)). [C]ourt cannot consider just any case law if a .right was clearly established. 46 Only binding opinions Circuit where from Court the 526 Appeals, is and filed, see n.10 also Marsh the can 603, 616-17 serve clearly"), "would 785 483 as to state of that the law on March 1, his conduct was F.3d case, 2012 courts gave Layne, in other law 544. is whether Chief McBride unconstitutional. a the 550 U.S. therefore, 1014, that establish abrogated on other grounds, Twombly, salient question for this 268 from this (11th Cir. (explaining able state 55.9- (11th Cir. 1237 Ala., authority" be the (citing Wilson v, (1999)) [not] in Eleventh precedent, for F.3d 1231, Cnty., the court F.3d 553, (en banc) persuasive Court, highest Butler 2001) jurisdictions warning v. (11th Cir. U.S. The Supreme Merricks v. Adkisson, "consensus ... of the States (citing McClish v. Nugent, 2007)); 1032 of United action analysis." 2015) the There fair is no question that at time of the incident at issue the law regarding supervisory liability F.3d at 1360; Belcher, his burden, case or failure other to manners — (2) the Mr. was clearly established. 30 F.3d at 1397-98. Gibbons must point to statement train or of supervise his 326 But in order to meet some positive Cottone, law officers factually analogous demonstrating in the that challenged (1) whether or when a paper tag may warrant a stop and use of a resisting arrest, Fourth Amendment. taser without albeit See, warning "passively" e.g., a suspect that as alleged — violate Battiste 47 on v. Sheriff of is the Broward Cnty. , 261 F. App'x 199, 202-03 the motion to dismiss stage, (11th Cir. 2008) (finding, that the police chief was entitled to qualified immunity for failure to train because, past unjustified arrests by his department at he did not have enforcement fair officers notice from upon probable cause) (finding sheriff's regarding the the that he other (emphasis detention must added); to train Gray, provide students, in "faced with public protests," jurisdictions failure of "borrowed" to 458 clearly established Riley v. Newton, for purposes 94 F.3d 632, 637 of only F.3d at 1309 specific addition qualified (11th Cir. law arrest to training general training regarding use of force during detention and arrest, not at was immunity); 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' City of Canton v. Harris, 489 U.S. argument that the 378 (.1989), general standard of liability in failure to train cases clearly established the right). First, in context of the supervisory claim arising out of the purportedly unlawful stop, Mr. Gibbons contends that Chief McBride officers traffic had fair notice that paper tags stop." (PL's that he without Resp. at 48 must "train or inform his more does not authorize 4.) In support of a this argument, (Ga. Mr. App. Ct. Appeals 2002) whether the precedent to car with a at clearly there a is motorist registered, or law that driver's and that, either or that justified 12 by this train specific See Berry v. State, and prior PL's Sur- asserts in violation of situations in reasonable an vehicle automobile or in an is occupant law, order of suspicion articulable 547 S.E.2d 664, 668 (1) facts (Ga. Vansant v. State, 443 S.E.2d 474, 476 (Ga. Ct. App. check his are Sur-Reply Chief a stop it McBride must suggesting Ct. App 1994). is automobile the to (See PL's that not stopping an From Mr. Gibbons' argument, officers 49 hold ascertain Gibbons longstanding precedent, his to those Fourth Amendment." follows of registration 3 n.9; Mr. and registration Prouse, 440 U.S. at 663. to (1979), overruling was that Court solely to at in driver at 5.) required tag stop 530 of the principles 648 essence, the the the unreasonable under the was Georgia seizure for violation of and given S.E.2d 527, expressly articulable detaining license U.S. "except unlicensed otherwise subject to automobile In traffic least is the (PL's Resp. initial at 440 drive-out 3-7.) established which authorized," 50, Martin's 563 complying with our vehicle contrary. Officer that Prouse, the Doc. which v. not in State, prior applications12 driver was is Reply, (en banc), in Delaware "stopping a laws cites Bius v. relied on its espoused that Gibbons be the 2001) (en banc); particular person stopped has and (2) such the an mere fact intrusion. having a of (See committed a violation of PL's paper Resp. tag 3-4 at does the not ("Taking law warrant as true that there is a regular practice of unconstitutionally stopping cars solely based Defendant McBride to train or on paper tags makes plausible . . . that is liable for a policy or custom of omitting inform officers that paper tags without more does not authorize a traffic stop.").) Mr. Gibbons authority, further including one circuit, United 3483503, at reasonable States *4 (N.D. officer identifies case v. could from a Wright, Fla. Nov. not a at Brown, 6 No. Mar. 15, stop to n.5 (listing 30, 2006), that believed CR 105-124, 2006) cases).) See 2006 WL 717152, (finding deputy was investigate whether the persuasive within this 3:06-CR-447-MCR, his lawful under the circumstances presented here. Reply of sister court No. have consensus *4-5 defendant indicates actions United justified WL a were (See PL's Sur- also at 2006 & n.8 in was States (S.D. v. Ga. conducting operating a his vehicle in conformance with *Georgia's vehicle registration laws because his rear homemade cardboard tag, windshield, explaining driver and that, owner bore none although of a car of taped to the the required u[a]n officer's with a inside of the information xmere hunch' drive-out tag might and that a not be operating a car in compliance with the vehicle registration laws 50 does not provide suspecting officer's a particularized criminal suspicion activity," about and Bius objective ure-affirmed appearance the basis of a for that drive-out an tag," or the absence of a tag could authorize an the tag's visibility, investigatory stop)(emphasis added)(citations omitted). Defendants' Georgia Court purposes n.10. of of Appeals qualified Indeed, universe sole response of the cases precedent. for Coffin v. In Prouse, the however, litigation, Mr. cannot immunity rule 2011) (en banc). is in that decisions clearly establish the under this Brandau, Marsh, circuit qualified immunity 642 F.3d Gibbons has finds that 268 F.3d limits the purposes 999, light of the Supreme Court issued by the at to 1013 Court's this law for at 1032 relevant binding (11th Cir. decision in stage of the alleged a constitutional violation that was clearly established at the time it occurred. Exact not factual required apparent from so identity with a previously decided case long as the unlawfulness the pre-existing lav/. (citation omitted). of Coffin, the conduct is is 642 F.3d at 1013 Distilled from Prouse is the principal that a random stop of a motorist — in the absence of observations of traffic ' or violates the equipment Fourth violations Amendment. or 440 suspicious U.S. at activity 650-51. — Clearly established law required Chief McBride to train his officers on this principle, which — if not followed or understood — would 51 likely result in Fourth Amendment are general legal rules, WL . Murdock v„ 2155465, denied, 22, at No. *9 (See, Cnty., (N.D. is entitled to Compl. No. May 17, 2013), 2013 WL 4501456 Ga. Accordingly, e.g. , Am.. Ga., 1:12-CV-01743-RWS, 2013) . McBride Cobb Although these they clearly apply to the facts alleged in the Amended Complaint. 54.) violations. the Court qualified fl-f 50,. 52, 1:12-CV-0.17.43-RWS, . 2013 cannot immunity reconsideration (N.D. rule Ga. that from Mr. Aug. Chief Gibbons' § 1983 failure to train or supervise claim arising out of Count I. Defendants' motion to dismiss this claim, Second, Officer has is DENIED. in context of the supervisory claim arising out of Martin's use of excessive "previously noted that force, Priester, 208 the Eleventh Circuit 'generally no bright line exists for identifying when force is excessive.'" (quoting therefore, F.3d at Jay, 926) . 579 F. App'x at 951 "Therefore, 'unless a controlling and materially similar case declares the official's conduct unconstitutional, qualified immunity.'" Mr. Gibbons, to Chief however, McBride's capacity (Defs.' specific law Officer violated. Br. at Chief alleged Instead, defendant is usually entitled to (quoting Priester, 208 F.3d at 926). has not presented any argument in response claim which Martin's Id. a that he 7 n.7, is 23-24), McBride's use immune of in his nor inaction excessive has he with force supervisory cited respect might any to have Mr. Gibbons argues that because "Defendants' 52 qualified without was immunity any not assertion discussion clearly is supporting established, least at this point, plead in their Plaintiff the alternative position cannot that be the faulted, for offering a general response, and law at and should be given an opportunity to respond to specific assertions that the law was not clear." states law that "Defendants Plaintiff law, has except for It is offered to responded demonstrate 21.) to He further any of clearly stop, the case established leaving excessive (PL's Sur-Reply at 3 n.2 (emphasis added).) Gibbons has fundamentally confused the burdens at hand. his immunity duty is taser use, establish to not come forward with appropriate with which he has not done. 485 F.3d 1130, that constitutional violation and have not at 19-21, law concerning traffic force not argued." Mr. (PL's Resp. was internal therefore, is 1137 (11th Cir. the defendant's right. Next, clearly argument respect to that qualified Officer Martin's Skop v. City of Atlanta, 2007) ("First, conduct Ga., the plaintiff must violated a the plaintiff must statutory or show that the established.") (emphasis ' added)(citation quotation entitled marks to omitted). qualified Chief immunity McBride, from § 1983 liability for failure to train or supervise related to Counts IV/V, motion to dismiss and Defendants' is GRANTED. 53 this claim, therefore, 2. Count VI - First Amendment Retaliation Against Officer Martin In. Count VI, Mr. Gibbons claims Officer Martin violated his rights under the First Amendment. (See Am. Compl. More contends his specifically, obstruction, Mr. Gibbons carried out by Officer Martin, was Mr. Gibbons' Gibbons' September Officer Martin and protected 2010 (2) speech internal Mr. — for and that adversely namely, affairs Gibbons' arrest pretextual undertaken with improper and retaliatory motives affected tH 124-28.) (D complaint Mr*. against emergency telephone call to complain about the stop immediately before and during the course of the March 2012 arrest. To survive exercising allege a would under to the establishing constitutionally that motion rights facts (Id. ) protected;" likely deter a dismiss First between the speech." claim 2005) . for he actions 2011); Bennett v. Amendment Mr. speech Gibbons or must act adverse ordinary for was conduct firmness from "there is a causal connection and the Coll., Hendrix, adverse retaliation effect 631 F.3d 1194, 423 F.3d 1247, Defendants argue that Mr. First retaliation "suffered of Castle v. Appalachian Tech. (11th Cir. Cir. retaliatory "his person engaging in such speech," and (3) on Amendment, (1) (2) based 1250 on 1197 (11th Gibbons does not state a because he "failed to sufficiently allege that he engaged in protected speech ... or 54 that there was a causal arrest speech and his (Defs.' Br. at 21-22.) connection and between [Officer] any Martin's instance use of of force." The Court thus addresses only prongs one and three of the prima facie case. The First Amendment political expression, but affords Ohio (11th Cir. Elections Workers 222 of Am., (1967)) . verbal 2013) Dist. It . . . 514 U.S. 12 v. 111. Const, 334, and challenge freedom of a I; speech Mclntyre (1995); v. United Mine 389 U.S. 217, significant directed individuals to 522 F. App'x 872, amend. 346 "protects The protection State Bar Ass'n, likewise criticism officers. Abella v. Simon, (citing U.S. Comm'n, broadest also to the general rights of and to petition for redress. 874 the amount at of police 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, Houston v. 461-63, Gibbons Hill, 482 U.S. alleges he 451, 485 F.3d at 1139 (1987)). At bottom, engaged in protected activity by police misconduct. (See Am. Compl. t1 38, (quoting Mr. reporting 124-26; see also Pi.'s Resp. at 11-13.) Defendants factual respond that Mr. Gibbons "never specifics about the nature of the complaint." especially (Defs.' Br. at 22.) given the [internal any affairs] This argument is unavailing, very complaint 55 alleges at issue is likely in Defendants' possession. Moreover, Defendants challenge to the classification of Mr. Gibbons' call failed as "protected speech" their reply brief. Thus, when the alleged sufficient facts as motion to dismiss. plaintiff facts any emergency phone to address Court finds that Mr. it in Gibbons has to the first prong to withstand the See Abella, alleged they abandoned 522 F. App'x at 874 sufficient to establish (finding the three police officers unlawfully retaliated after he filed grievances against each of them and engaged in other protected activity); e.g. , Moral (D. Kan. v. Hagen, July No. 14, 10-2595-KHV, 2011) plaintiff's allegations that 2011 (recognizing WL as see also, 2746833, at sufficient *5 the by obtaining an arrest warrant in retaliation for the filing of a complaint against an 'officer of the Kansas division, internal affairs defendant violated her First Amendment rights to free speech and Mateo, No. 19, 2009) Bureau to of Investigation petition the with the government); 07-05596 SI, 2009 WL 735149, (finding the plaintiff Doe at stated a v. *6 Cnty. (N.D. of Cal. claim' against San Mar. two police officers when she alleged they retaliated against her for filing a police report about police misconduct by threatening to arrest her and by stalking, intimidating, and threatening her) ; McCann v. Winslow Twp., 2007 WL 4556964 *5 n. 5 (D'.N. J. :Dec. 20, 2007) ("[T]he municipal formal police mechanism department of filing is within the 56 a 'grievance with realm of a activity clothed in constitutional protection from retaliation.") Foraker v. abrogated Chaffinch, on other Guarnieri, 131 S. 735149, *5-6 at 501 F.3d grounds Ct. 231, by 2488 Borough (20li) ). (noting the 236 absence (3d of (citing Cir. 2007), Duryea, 'Pa. v. But of see' Doe, 2009 WL the authority for the proposition that a statement made to police during an arrest or a temporary detention qualifies grievances" Foraker, within 501 protected the F.3d from mechanism [s] at meaning 236, as a of for retaliation such as the the is the "petition First for Amendment proposition of of (citing that activity by "formal characterized filing redress a lawsuit or grievance"(emphasis added))). To establish that his a protected causal connection, conduct was a 713 F.3d 1059, 532 F.3d 1270, 1278 1063 Gibbons "motivating Officer Martin's alleged misconduct. Corr., Mr. Smith v. (11th Cir. (11th Cir. 2008). 2013); must factor" allege behind Florida Dep't of Smith v. Mosley, "Plaintiff must identify a sequence of events from which a retaliatory motive can be inferred, notwithstanding defendant may harbor." Supp. 3d 1327, 1344 other non-retaliatory Eisenberg v. (S.D. Fla. internal quotation marks omitted). motives City of Miami Beach, Mar. 3, 2014) the 1 F. (citation and 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, 57 429 U.S. 274 (1977). Mosley, 532 F.3d at 1278. Under the Mt. Healthy formula, [o] nee the plaintiff has . met his burden of establishing that his protected conduct was a motivating factor behind any harm, the burden of production shifts to the defendant. If the defendant can show that he would have taken the the absence of the protected activity, to prevail ... on summary judgment. Mosley, 532 F.3d 378, In also F.3d 399 conjunction of free 2011) dismissing (quoting he action the temporal speech is entitled Thaddeus-X v. Blatter, burden-shifting proximity formula, between and the adverse a inmate's 175 effect the district court First Amendment erred retaliation courts plaintiff's in gauging See Bumpus v. Watts, 44 8 F. App'x 3, (finding in 1999)). with the causal connection. Cir. 1278 (6th Cir. consider exercise at same by a 7 (11th prematurely claim because inmate sufficiently alleged causation "given the short amount of time between his appeal of the disciplinary alleged retaliatory actions"); Akins v. F.3d 1293, 1305 (11th Cir. 2005) decision Fulton Cnty., (finding the "close and the Ga., 420 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 y. City 58 of Riviera Aug. 19, Beach, No. 2014) 08-CIV-80134, (finding causation because there adequate was "a 2014 WL 4101514 circumstantial very close (S.D. Fla. evidence temporal of connection" between the timing of the plaintiff's expressive speech — public criticism of the integrity of various municipal officials and formal lawsuit — and the city's exertion of an extended string of legal 06-60750, pressures 2008 WL against the plaintiff); 868253, at *2 (S.D. Smith v. Fla. Bell, Mar. 31, No. 2008) (stating "there can be no assumption that eighteen months after a police officer is called names by an arrestee, that the officer's alleged false testimony at a trial where a defendant is partially acquitted meets the casual connection requirement" and concluding "[t]here must be a greater temporal proximity or other evidence of a causal connection to link the protected conduct occurring [eighteen] months prior to the adverse action, as would be the case is most retaliation type analyses" Davis v. Coca-Cola Bottling Co., 516 F.3d 955, 2008) and Brungart v. Bellsouth Telecomms., 799 (11th Cir. the motion to l:13-CV-0524-RWS, 2013), (11th Cir. Inc., 231 F.3d 791, 2000))). The burden-shifting analysis, at 978 (citing dismiss 1767710- (N.D. Ga. phase. 2013 WL 5493380, reconsideration denied, May 2, however, 2014); 59 Johnson at *4 n.3 No. is not appropriate v. Conway, No. (N.D. Ga. Sept. 30, 1:13-CV-0524-RWS, 2014 see also generally Mosley, WL 532 F.3d 1270 (decided on summary judgment); Lozman, 1392 (same). have taken activity XXA the is determination same premature discovery." when Eisenberg, 2013 WL 5493380, only whether protected action at Mr. *4 n.3) . was Officer Martin has in to the a absence the whether of parties 2014 WL 821282, Gibbons conduct as has a As a met at his taken same would the protected conducted (citing Conway, the factor 3d not 1344 burden the defendant have result, motivating would have 39 F. Supp. Court in addresses alleging and not actions his whether absent Mr. Gibbons' protected conduct. It alleges is clear his from 2012 the arrest Amended Complaint by Officer Martin that was Mr. the Gibbons result of filing a complaint against Officer Martin in September 2010 and raising alarm about Officer Martin's subsequent stop in March 2012.13 (Am. Compl. exists between Mr. March 2012 arrest, H 124.) Gibbons' Although almost no temporal gap emergency telephone call Gibbons' internal affairs complaint — filed in September 2010 - and the March 2012 arrest. at 22-23). his as Defendants observe, a substantial temporal gap exists between Mr. Br. and Facially, the latter exercise of Mr. (Defs.' Gibbons' 13 Mr. Gibbons makes no allegation that Officer Martin recognize.d him or his vehicle before initiating the purportedly unlawful traffic stop. (See Am. Compl. ^| 67 ("When Martin could see Gibbons through the window, Martin knew that it was Gibbons, or within a few seconds of being at the window, before the tasering, when Martin heard Gibbons on the phone complaining about how GRU police have done this to him before, Martin knew it was Gibbons from the 2010 stop[.]") .) 60 First Amendment rights is exceedingly adverse action taken by Officer Martin. at 1254 include ("The alleged prolonged a and local police officers. plaintiffs, the defendants retaliatory followed, organized Synagogue, 2d 1296, 1316 (S.D. is replete pulled v. with over, Fla. City of 2006) harassment in the form of issuance of violations (emphasis added) The acts from the 423 F.3d of here Bennett, complained of Taken in the light most record Inc. Cf. campaign otherwise harassed the plaintiffs.") Cmty. attenuated harassment favorable to the instances where the intimidated, cited, or (emphasis added); Hollywood, by Fla., Hollywood 43 0 F. Supp. ("Numerous courts have found that constant monitoring, investigating or can contravene'First Amendment rights.") (citations omitted). Eleventh other •retaliation Circuit Court -of contexts, Appekls however, that has recognized wif there [is] in a significant time gap between the protected1 expression and the adverse action, the plaintiff must offer additional'evidence to demonstrate a causal connection, such as a pattern of antagonism or that the adverse action was the retaliate." Jones v. 955' '(11th Cir. 2014) "first opportunity' Suburban Propane, (emphasis added) Data Sys. ,• Inc. , 109 F.3d 173, Inc., . . .to 577 F. App'x 951, (citing Kachmar v;' :SunGard 177 (3d Cir. 1397) and quoting Dale v. Wynne, 497 F. Supp. 2d 1337, 1346 (M.D. Ala. 2007)); see also Bell,- 2008 WL 868253, at *2 61 ("There must be a -greater temporal proximity or other, evidence of a link the protected conduct occurring [eighteen] .months prior to the, adverse type action, would analyses.") (emphasis theory informs Mr. Gibbons the as for 2010 stop investigation, and that is he Martin had filed connection to most his adverse (Am. case Compl. is recognized an from actions him internal from affairs [POS] Turner Indeed, Mr. Gibbons retaliation in "because employers have employment ..This "[b]efore arresting U 128.) distinct retaliation omitted) r because he had been interviewed by employment context take case allegation that [Officer] knew as a result of it." argues the added) (citations Gibbons' obstruction, be causal the the opportunity against an practically any work day . . . , but [Officer] employee to on Martin did not have an opportunity to retaliate again[st] Gibbons until he came into contact with him during the 2012 stop."14 (Pl.'s Resp. at 13.) The Court finds, whole are Court DENIES 14 at this stage, sufficient to Defendants' The Court notes, however, the allegations taken as a establish causation. motion to as this Therefore, count. The the Court that Jones is an unpublished opinion, which is not controlling authority and is persuasive only insofar as its legal analysis warrants. Bonilla v. Baker Concrete Const., Inc., 487 F.3d 1340, 1345 n.7 (11th Cir. 2007). Moreover, to the extent the Court can discern, the Eleventh Circuit has not recognized the "first opportunity", theory in the § 1983 context, and Jones has been cited in only one decision: a Florida district court's footnote about whether a plaintiff is required to establish but-for causation at the prima facie stage of a retaliation suit brought pursuant to 42 U.S.C. § 1981 and the Florida Civil Rights Act, Lewis v. City of St. Fla. Petersburg, June 9, No. 8:14-CV-254-7-T-27TGW, 2015). 62 2015 WL 3618525, at *4 (M.D. will not address whether Martin from liability as qualified to immunity this claim as protects Officer he did not raise the defense in-brief. Count VII - Malicious Prosecution Against Chief 3. McBride, POS Turner, Although not Count VII, § 1983 Mr. claim and Jackson, conspiracy If 131, Turner and Chief McBride maliciously 138-141, conspiracy arguendo that malicious the or sufficiently and 146 prosecute PL's of VII (See Sur-Reply at conspiracy — prosecution Claims Officers actions and itself VIII — in standalone Martin Am. (2) Compl. claim as against and individuals' allegations wrongful (1) individually and claim. (framing the plan"); plead, allegations prosecution against or more of the Defendants" the from the appears to assert both a for malicious to 132, readily decipherable Gibbons POS and Officers Martin and Jackson Mt]wo "as part of 13 ("Assuming as opposed have not asserting to been 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 as a Eleventh violation Circuit of the has identified Fourth malicious Amendment constitutional tort cognizable under § 1983. 323 F.3d 872, 881 & n.14 "To establish a § 1983 (11th Cir. 2003) malicious 63 and prosecution a viable Wood v." Kesler, (citations omitted). prosecution claim, the plaintiff must prove two things: law tort of malicious Fourth Amendment Grider, right 618 Kingsland 2004)). F.3d v. at City of (1) and prosecution; to be free 1256 the elements of the common (2) 382 "As to the first prong, in F.3d (2) instituted or continued by in the plaintiff accused's favor; and accused.'" Id. 1234 his seizures." (citing (11th Cir. the constituent elements of the [are] : x(1) the present with malice and without probable cause; plaintiff of original) 1220, common law tort of malicious prosecution prosecution violation from unreasonable (emphasis Miami, a (3) (4) (quoting a criminal defendant; that terminated caused damage to the Wood, 323 F.3d at 882). Under Georgia law, malice may be inferred from "a total lack of probable cause." O.C.G.A. § 51-7-44; see also K-Mart Corp. v. Coker, 261 410 S.E.2d 425, 429 prong, it is well established that ah arrest without probable cause is an Amendment." unreasonable (Ga. seizure 1991). that "As to the second violates the Fourth Grider, 618 F.3d at 1256 (citations omitted). Tracking the required elements of the common law tort of malicious prosecution, Mr. Gibbons alleges that Officer Martin arrested him for asserts the March 2012 that obstruction. (Am. traffic Compl. stop, UK 82.) Next he based solely on Mr. Gibbon's paper dealer tag, was not supported by probable cause. (See id. <H 52, 54.) probable cause to He further alleges that " [t] here was no arrest [him] 64 for obstruction" because he merely requested store" and "to drive to "rolled down his for conversing with registration." Additionally, Mr. ff Mr. "calling Gibbons' 68, Gibbons the 2010 Richmond well-lit couple convenience inches, sufficient Martin and exchanging license and 69; see contends intentionally and maliciously, for nearby, window a [Officer] (Id. a as Officer affairs Police about the stop as it occurred. id. KU acted in retaliation complaint Department to (Id. tH 124, 128.) was acquitted of obstruction on July 11, 82-88.) Martin the arrest was internal County also 2013. and for complain" Mr. Gibbons (Id. t 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." HI! 133, 134.) at this Second, juncture, constitutional probable he also has shown violation for his Thus, the Court cause. adequately assuming Mr. Gibbons' states a version of events a Fourth seizure finds claim for malicious (Id. without that Mr. Amendment arguable Gibbons 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 after acquiring knowledge that it was bogus. at 14.) Williams v. Miami-Dade Police Dep't, 65 the change even (See PI. 's Resp. 297 F. App'x 941, 94.7 (11th Cir. 2008);- Kjellsen (11th Cir. 2008); 1317, (S.D. 1342 Spadaro v. Fla. v. Mills, 517 F.3d City of Miramar, 2012). Specifically,- 855 Mr. 1232, F.. 1238 Supp. 2d Gibbons- alleges Officer Jackson lied about there being no tag whatsoever on Mr. Gibbons' car (Am. Martin the bird" Court has Officer Jackson's later of going (id. f 139) to proceed serious initiation 140) and Mr. Gibbons "sho[oting] immediately prior to the stop "knowing that the statement was false," prosecution" %% Compl. to (see id. reservations alleged act the traffic trial, thereby "causing the malicious it HI 130, about — 145) . the Although causal link the between fabricating evidence about the stop — and nonetheless" the obstruction finds Mr. charge Gibbons has satisfied the common law elements of malicious prosecution as to Officer Jackson at this stage. 1342 (S.D; Fla. 2012) Defendants • • knowingly See Spadaro, 855 F. Supp. 2d at (finding the plaintiff's allegations "that fabricated, evidence, filed .• false ' police • reportis, and conspired to convict liim of a crime theylknew he i did not -commit," he plead all the necessary elements of a malicious prosecutions claim under § 1983). 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; '-•' (Atn. Compl. "f 142.) Elsewhere in the Amended-Complaint, 66 he contends repeatedly that, POS Turner was incompetent 7yand/or/; with "actual .evil motive, decided to purposefulness of his.third, trigger,"- fH 108, not,, the 111, fourth, propriety 112.) Mr. of help Martin argues that that Martin did nothing wrong in the 2012 rise to an inference that the and fifth pull, .of the taser the .obstruction Gibbons cover; up Turner charge. "Turner's incident agreed (Id. finding . . . gives with Martin to maliciously prosecute Plaintiff by passing on to the prosecutor fabricated evidence finding." (Pl.'s under Resp. at the guise 14.) of an investigatory Notwithstanding that Mr. Gibbons injected this last "fact" - POS Turner's connection to or interaction with the prosecutor — into the argument without pleading it, not, incompetently carrying out an investigation does 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. there is no allegation in • the Amended Simply put, Complaint that would VII that Chief support a finding of malice. Similarly, Mr. Gibbons alleges in Count McBride "reviewed without objection" POS Turner's findings, did not correct findings. them, and then (Am. Compl. M acts "give[] allowed her 114, 143, 144.) to testify about her He argues that these rise to the inference that he informally agreed 67 with Turner to at 14.) The McBride as Court it allegations far Dade Cnty., June comes with Chief to the POS same Turner: McBride conclusion in the discovered Gibbons and concealed it, Mr. too great of a leap. No. 07-20914-CIV, (PL's Resp. with absence Chief of information Gibbons' that inferences Cf. Diaz-Martinez v. 2009 WL 2970471, any at *14 Miami- (S.D. Fla. 2009) (alleging a supervisor personally participated in 9, officers' which did that exculpated Mr. present maliciously prosecute Plaintiff." fabrications documented a by signing subordinate off on officer's a fabricated extensive report, 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. Accordingly, GRANTED as Defendants' 10, 2009) . motion to dismiss this claim to Chief McBride and POS Turner. is The Court will not address whether qualified immunity protects Officer Martin from liability as to this claim as he did not raise the defense in either brief. Nor will the claim of qualified immunity. Court address Officer Jackson's Defendants merely invoke Officer Jackson's name in the first' sentence of two paragraphs setting forth the legal standard for qualified immunity. 23.) were (Defs.' Br. at Their subsequent argument about whether Defendants' within their discretionary authority Officer Jackson's specific actions - here, 68 does not acts address fabricating evidence or presenting false testimony. — Police Bureau supervisors, assigning investigators implementing policies, Reply at 8.) dismiss to Gibbons' rather the conduct of GRU investigating citizen complains, carry training The Court, Mr. i.e. but out such officers, investigations, etc. (See Defs.' therefore, DENIES Defendants' motion to malicious prosecution claim against Officers Martin and Jackson. Counts VII & VIII - Conspiracy to Deprive Mr. Gibbons of His Fourth and First Amendment Rights via Retaliatory Prosecution Against Officers Martin, 4. Turner, McBride, and Jackson To establish a conspiracy claim under § 1983, must allege rights; right; three (2) "(1) a violation of (3) 8:10-CV-01324, an actionable 2010 WL 4292310, (citing Geidel v. Fla. wrong." at *5 Hoelper (M.D. Fla. City of Bradenton Beach, 56 F. 1999)); see also Conway, *5 federal (N.D. Ga. Jan: 4," 2012)). Mere v. Coats, Oct. No. 27, 2010) Supp. 2d 1359, 2013 WL 5493380, (citing Valentine v. Bush, No. 2:10-CV-0097-RWS, at [his] an agreement among the Defendants to violate such a and 1367 "(M.D. elements: a plaintiff at *5 2012 WL 27416, "conclusory, vague and general" allegations of *conspiracy are not sufficient to survive a motion to the nature Graddick, dismiss; of the rather, conspiracy "a defendant must which is alleged." 739 F.2d 553, 557 (11th Cir. 1984). 69 be informed of Fullman v. The Eleventh Circuit conspiracy Bailey v. 1122 is Bd. action, of Cnty. the presupposes parties, their overt of Indus. Orgs, 2011); see v. City of also Grider, Miami, 618 Trs. 1992)). of Ga. communication." acts 956 F.2d 1112, Military Coll., 970 and Am. 637 F.3d n [f]actual proof of the existence of a may be based on circumstantial evidence" of linchpin for *[A]n agreement may be inferred from the Cir. (11th which ^the Comm'rs of Alachua Cnty., 1992). of explained that and the totality of their conduct." & Cong, that agreement, (11th Cir. relationship has concert of Fed'n of Labor F.3d 1178, at 1260 § 1983 1192 (stating conspiracy (citing Burre11 v. Bd. F.2d 785, 789 (11th Cir. As a guide, our sister court has found that a plaintiff alleges sufficient facts to state a claim for § 1983 conspiracy where: (1) plaintiff participated in constitutional "acted in committed, allegations the events violation, concert" and alleged (3) that (2) when all leading up plaintiff the defendants constitutional the Defendants the alleged all w[t]he Amended Complaint [is] alleged defendants violation was replete with communicated with one another and actively participated with one another" during the event in question. to actively Conway, leading up to -and 2013 WL 5493380, at *5 (citing Valentine, 2012 WL 27416, at *6) . Here, Mr. Gibbons Martin and Jackson, alleges that Chief McBride, Officers and POS Turner conspired to facilitate his 70 prosecution for obstruction after (Am. Compl. f 131.) lied about the taser his hand (id. lied about (id. t 14 0) ^ 137) Gibbons and Mr. U 138). there traffic stop. in dialogue before he deployed Gibbons rolling up the window on According to Mr. Gibbons, Officer Jackson being and Mr. immediately prior 2012 Specifically, he claims that Officer Martin engaging Mr. (id. the March no tag Gibbons whatsoever on Mr. Gibbons' flashing Officer Martin to the stop (id. ^ 139) . car bird Gibbons Mr. the also asserts that Officer Turner investigated the March 2012 stop and "incompetently believed" Officer Martin by failing to review the video evidence cover, up or with "evil the purposefulness (Id. tasings. H 111.) motive" of" "decided the third, Finally, Officer to fourth, in all, these* Defendants executed a malicious prosecution of Mr. Gibbons" [Officer] protected Martin's misconduct" First "prevent .' . .'a Defendant" (id. U 131), facts reviewed "to- causfe the "to cover up (icL_ Hf 137-42) ," and to "chill Amendment activity" subsequent fifth (id. j| 143.) civil (id. or case rights' 'f-'158) against any (id.) . Defendants specific "plan" Martin and McBride Officer Turner's investigation without objection. All help . •. ,• contend that Mr: Gibbons' plausibly suggesting failure "to an agreement" identify of' "facts supporting a "meeting of the minds" is fatal to his conspiracy claims. (Defs.' Br. at 13.) Indeed, 71 the Amended Complaint lacks allegations another" about Mr. complaints, or misconduct. presented adverse Supp. acts 2d Defendants such, weak of in — or Mr. 1313 Officer Gibbons' that they individuals." 1308, "communicated., with one Gibbons — his traffic stops,.internal affairs prosecution , As are that conspiracy merely See (N.D. Ga. Martin's He in 2013) purported .claims "string [] v. as together Kimbrough, 942 (citing Harvey v. F. Harvey, 949, F.2d 1127, 1133 (11th Cir. 1992)).15 The Court, dispositive at however, officers constitutional relationship totality of not find the motion to dismiss above-mentioned Gibbons' does as members their reached rights of an stage. conduct Police related investigations, and prosecutions. to to to be that the violate Mr. inferred be GRU deficiency Indeed, agreement may the this from Bureau the their and the arrests, 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 prosecute Mr. Gibbons in in concert retaliation with one another to for exposing officer misconduct. 15 Moreover, the allegations of silence or inaction on the part of Chief McBride do not support the inference that he conspired with Officers Martin and Jackson and POS Turner to violate Mr: Gibbons' constitutional See Myers v. Bowman, 713 F.3d 1319, 1322 (11th Cir. 2013). 72 rights. •Defendants nevertheless conspiracy doctrine (Defs.' at holds Br. that bars 13-14.) acts of corporation itself, counter Mr. that the Gibbons7 intracorporate conspiracy claims. "The intracorporate conspiracy doctrine corporate agents are attributed' to thereby negating the multiplicity of the actors necessary for the formation of a conspiracy." Grider, 618 F.3d at Corp., 206 1261 1031, a (quoting 1036 (11th Cir. corporation employees, McAndrew v. 2000) cannot (en banc)). conspire with 247 F.3d 1172, Id.; 1190-91 F.3d u[U]nder the doctrine, its employees, and when acting in the scope of their employment, conspire among themselves." Albany, Lockheed Martin see also Penney v. (11th Cir. 2001) its cannot City of (stating "the only two conspirators identified . . . are both City employees; no outsiders are alleged to be involved" and concluding intracorporate conspiracy doctrine barred plaintiffs' conspiracy rights). claims for deprivation Fort their equal protection The doctrine applies to public governmental entities and their personnel. (11th Cir. of § 1985(3) 2010); Lauderdale, Pickersbn v. See Rehberg v. Paulk, Penney, 247 F.3d at 1190; 232 App'x 891 F. 885, Alachua Cnty. Comm'n, 200 F.3d 611 F.3d 828, Albra v. (11th 854 City of Cir. 761/ 767-68 2007); (11th Cir. 2000); Chambliss v. Foote, 562 F.2d 1015 (5th Cir. 1977).16 16 1981) see Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. (holding Fifth Circuit decisions made on or before September 30, 1981 are binding precedent in the Eleventh Circuit). 73 Defendants are law enforcement job-related functions police officers of empowered precisely Grider, 618 conspiracy claim their on within their a the "law to prosecute at doctrine based well conduct: F.3d 1261-62 barred false outsiders false obstruction charge. — notwithstanding infirmity that Police The subject of their alleged conspiracy — prosecution by making a allege GRU involved. Gibbons not the Mr. Mr. does with Bureau. of Gibbons officers scope of purported of (finding the plaintiff's the § bribery charge and involves employment as constitutional enforcement violations are officers are law."17 See intracorporate 1983 conspiracy prosecution and explaining that the *inquiry is not whether [the police officer] had the authority to prosecute in an unconstitutional manner and with malicious intent, but instead prosecutions is part of [the officer's] whether engaging in job-related powers and responsibilities"). The Eleventh Circuit, however, has enunciated, fully adopted three exceptions to the doctrine. F. 3d 1263. not Grider, 618 The intracorporate conspiracy doctrine may not bar a plaintiff's claim where 17 but In a footnote, Mr. (1) the participants' Gibbons argues that the conduct violates intracorporate conspiracy doctrine does not apply because the relevant Defendants were not acting within the scope of their employment. (PL's Resp. at 15 n.24.) Although some courts recognize that where agents act far outside the course of employment, it may be possible for them to form a conspiracy, see Johnson v. Hills & Dales Gen. Hosp., 40 F.3d 837, 841 (6th Cir. 1994), the Eleventh Circuit's decision in Grider, which addresses claims indistinguishable from those presented by Mr. Gibbons, forecloses such an argument here. 74 the federal employee criminal has an unconstitutional corporation's (3) code, McAndrew, 'independent acts and is F.3d at personal not illegal objective," "the employees 206 (2) to 618 "the in stake* acting Grider, 1034; his further F.3d at 1262; the and '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 Defendants. could A give complaint opposition to a motion App'x 830, 832 n.5 rise may to not criminal be to dismiss. (11th Cir. 2011) charges amended Huls v. by against briefs Llabona, 437 in F. (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, No. *6 (S.D. Fla. Feb. 6, 14-22630-CIV, 2015 WL 758283, at 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 hot be amended by briefs in opposition to a motion to dismiss or motion for summary judgment")(citations omitted). error, the Court puts the issue to rest. 75 Notwithstanding this In. his response brief, conduct violated tampering, U.S.C. § makes and it the 371. a corruptly 18 Mr. U.S.C. criminal (PL's crime the proceeding." (emphasis to at which 15.) 18 use [] that Defendants' prohibits conspiracy witness provisions U.S.C. testimony of 18 intimidation ... or any person added). of § 1512(b)(1) person . . . with another to . . . influence mentioned, fraud "knowingly persuade[] Id. § .1512, Resp. to Gibbons, argues As the in intent an Court official previously Mr. Gibbons alleges no facts in the Amended Complaint support 18 U.S.C. § 1512(b)(l)'s application. That Defendants purportedly lied about various -facts or ratified sub- par internal investigations does not give rise to- the inference that each of them intimidated or corruptly influenced the other to testify falsely. which Mr. the Moreover, the "official proceeding" about Gibbons complains was not "before a judcje or court of United States," Congress, a federal regulators as required by the statute. agency, 18 U.S.C. or insurance § 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 any agency [of the United States] .'" ' Id. (emphasis added) . Again, Mr. Gibbons alleges no facts in the Amended Complaint to support 18 U.S.C. § 371's application. 76 As Mr. Gibbons does not address the other two exceptions to the intracorporate conspiracy doctrine, Defendants'. motion to. dismiss neither, will Counts VII and VIII the .Court. based on the intracorporate conspiracy doctrine is due to be GRANTED. 5. Count JX - "First Amendment Claim Under The Same Facts As The Fourth Amendment Claim For Unlawful Stop For Paper Tag" Count IX of the Amended Complaint consists of a single paragraph: The same facts underlying Claim I, incorporating herein \ 48-63, supports a claim for deprivation of a First Amendment right of Gibbons' freedom of movement and travel, protected as a liberty interest under the Fourteenth Amendment, so one of the injuries caused by the Fourth Amendment deprivation is damages associated with the deprivation of the right to travel. (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 Claim I." The to the Fourth Amendment false stop asserted in (PL's Resp. at 2 n.5.) Court has read Count IX — including all purports to incorporate — and agrees with Defendants: clear what claim is being made or against whom. that it it is not Mr. Gibbons received explicit instructions from the Court in its October 27, 2 014 Order about the manner in which he was expected to present his claims upon re-pleading (Doc. 77 38 at 8-9) and Count IX does not conform conforming to claim Claim IX. Cir. 2001) dismissal those See standards. for him. Byrne v. deficiency), Bond & Indem. a Co., Accordingly, shotgun pleadings when on other 553 U.S. 639 IV, Based on the foregoing, IN PART Defendants' a F.3d party grounds will the 261 remedy abrogated Court Nezhat, (discussing as The Court 1075, and fails by not draft DISMISSES 1129-34 (11th approving to Bridge cure v. of the Phoenix (2008). CONCLUSION the Court GRANTS IN PART and DENIES Partial Motion to Dismiss. (Doc. 42.) The relevant holdings are as follows: 1. Counts I, II, IV, V, VI, and VII against Officer Martin in his individual capacity SHALL PROCEED;18 2. Count I against Defendant McBride in his individual capacity, solely with respect liability for failure to train regarding unlawful stops, SHALL PROCEED; and 3. Count VII individual against capacity, Defendant Jackson in as a standalone claim his for malicious prosecution, SHALL PROCEED. The remaining claims, 1. Counts I, Maxwell, 2. as listed herein,' are DISMISSED: II, III, Black, IV, Skinner, and V against Defendants and Turner; Count I against Defendant McBride with respect to liability for failure to train regarding excessive force; 3. 18 a Count III against Defendant McBride; As explained in Part III.D.l, supra, Count III against Officer Martin is subsumed into Counts I and II. 78 4. Count VII, as prosecution, a standalone against claim for Defendants malicious McBride and Turner; 5. The • conspiracy claims identified in Counts VII and VIII as to all Defendants; 6. Counts IX, X, XI, XII, XIII, XIV, and XV as to all Defendants; 7. All claims against John Doe or Jane Doe; and 8. All official capacity claims as to all Defendants, except for Phillip Wilheit, Sr. as Chair of the University System of Georgia Board of Regents. The Court DIRECTS Maxwell, Black, Skinner, as lwell as Defendants Gibbons' all SHALL Clerk Turner, deadlines have Amended the TERMINATE and John/Jane and FOURTEEN to motions DAYS Complaint. to The Defendants Doe as pertaining file an parties parties, to answer SHALL them. to Mr. submit a discovery plan within THIRTY DAYS of the date of this Order. Finally, Batson, the Court CAUTIONS Mr. Gibbons' counsel, John P. against using excessive footnotes to evade the 26-page limit for motions he continues at the filed in this Court. to use Court's footnotes discretion, See LR 7.1(a), in this either be manner, rejected his as SDGa. briefs If will, unacceptable for filing or dismissed with leave to be refiled in proper form. The Court further CAUTIONS of the sur-reply brief. the filing of Mr. Batson against abusive use Although this district's local rule on supplemental briefs 79 is permissive; Podger v. Gulfstream Aerospace Corp., "liberally allowing 212 F.R.D. filing of 609, [sur] reply abrogate the purpose of reply briefs." Ins. Co., 26, No. 2 015) . advanced 6:10-CV-104, in an opposing Ga. briefs at *6 a sur reply is party's (S.D. 2003), does reply (S.D. to rebut brief or Ga/ Jan. arguments explain position that the opposing party has attempted to refute," (emphasis added)(citation omitted). be used to take another bite at not Royal v. New York Life 2015 WL 339781, "The purpose of 609 a id. The sur-reply brief may not answering an opposing party's motion for summary judgment — becoming nothing more than a 26- page extension of the response brief — nor should it be employed as a tactical final word. counsel device As continues to with to ensure the game that Court's the the plaintiff warning Court's liberal the footnotes, on steals if sur-reply brief policy, he will be required to move in writing for permission to file such briefs, succinctly specifying the reasons why additional briefing is necessary. ORDER August, ENTERED at Augusta, Georgia, .. aZl?day this s^*/ / of 2015. HALL v US DISTRICT JUDGE DISTRICT OF GEORGIA 80

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.