IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

Transcription

1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION DENISE GRIER Plaintiff, v. DEKALB COUNTY ET AL. CIVIL ACTION FILE NO. 1:06 CV Defendants. DEFENDANTS DEKALB COUNTY, SGT. RICK CAVINESS AND N.T. MARINELLI S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Defendants hereby submit this Memorandum of Law in Support of their Motion for Summary Judgment on the grounds that: 1) Plaintiff s claims are further barred by the sovereign immunity DeKalb County enjoys as a political subdivision of the State of Georgia; its employees enjoy this same immunity while acting in the scope of their employment; 2) the claims against Caviness and Marinelli in their individual capacities are barred by the doctrine of official immunity, 3) at no time was there an official policy, practice or custom of DeKalb County that caused the Plaintiff harm, nor was there ever an unconstitutional unofficial policy, practice or custom that caused the Plaintiff any harm, and 4) Plaintiff s federal claims are barred by the 1

2 doctrine of qualified immunity. Therefore, all Defendants request that this Court dismiss each of the Plaintiff s claims with prejudice as a matter of law. I. PROCEDURAL POSTURE Plaintiff brings this action pursuant to 42 U. S. C for violation of her First, Fourth and Fourteenth Amendment rights under the U. S. Constitution, her rights secured by the Georgia Constitution, as well as her righst protected by Georgia state law. In her Complaint, the Plaintiff asserts claims against DeKalb County, and individual and official capacity claims against Sergeant Rick Caviness and Officer N. T. Marinelli. Specifically, the Plaintiff has asserted claims for 1) false imprisonment, 2) deprivation of First Amendment right to free speech, 3) deprivation of the right to free speech as guaranteed by Article 1, 1, 5 of the Georgia Constitution, 4) Plaintiff also seeks declaratory relief, in that she requests that her bumper stiocker be declared protected speech under the First Amendment of the U. S. Constitution and Article 1, 1, 5 of the Georgia Constitution. 2

3 II. STATEMENT OF UNDISPUTED MATERIAL FACTS The Plaintiff was stopped by Sgt. Rick Caviness on March 10, 2006 at approximately 9:30 p.m. (Plaintiff s Complaint, at p. 2, 7 hereinafter, Pltff Cmlp. ). The Plaintiff s car displayed a bumper sticker that read, I m tired of all the BUSHIT (Id.) Sgt. Caviness saw this bumper sticker, and believed it to read, BULLSHIT. (Statement of Undisputed Material Facts at 4) He therefore stopped the Plaintiff and cited her for a violation of what he believed to be current Georgia law as contained in O. C. G. A , or for displaying a lewed or offensice decal. (Id. at. 10.) Sgt. Caviness had used his best efforts to stay abreast of changes in the law with respect to his job as a police officer. (Id. at 11). However, he had no ability to change the software provided by the GOULD company that contianed the law that he relied upon on March 10, 2006 in stopping the Plaintiff. (Id. at 7.) During the stop, Sgt Caviness and the Plaintiff did not discuss politics, the President, or whether the Plaintiff s bunmper stickers were political statements. (Id. at s, 14, 16, 18, 19, and 20). The Plaintiff did not know Sgt. Caviness political affiliation, and likewise, Sgt. Caviness did not know 3

4 the Plaintiff s political affiliation. (Id. at 13, 14, 15, 16, 18, and 20) The Plaintiff was not physically touched or otherwsie handled during the stop. (Id. at s 21, 22, and 23). After receiving the citation for violation of O. C. G. A , the Plainitff continued to display the bumper sticker, as she did not remove the bumper sticker from her vehicle. (Id. at s 12 and 26) III. ARGUMENT AND CITATION OF AUTHORITY A. Standard of Consideration Pursuant to Fed. Civ. P. 56(c), this Court must grant summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The moving party has the burden of showing the absence of a genuine issue as to any material fact. The substantive law applicable to the case determines which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91. Ed. 202 (1986). The Court must view any materials submitted in favor of the motion in the light most 4

5 favorable to the non-moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d.265 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608, 26 L.Ed. 2d.142 (1970); Isenbergh v. Knight-Ridder Newspaper Sales, Inc., 97 F.3d 436 (11 th Cir. 1996); Clark v. Coats & Clark, Inc., 929 F.2d 604 (11 th Cir. 1991). Once the moving party has made this showing, the burden of going forward shifts to the non-moving party to show the presence of a disputed material fact. The non-moving party cannot create a disputed issue of fact by his pleadings, but rather must file a response which includes, or at least refers to, affidavits, declarations, depositions, or similar credible evidence showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Combs v. Plantation Patterns, 106 F.3d 1519 (11 th Cir. 1997), cert. denied, Combs v. Meadowcraft Co., 522 U.S. 1045, 118 S. Ct. 685,139 L. Ed. 2d 632 (1998); Isenbergh, 97 F.3d at 436; Hudson v. Southern Ductile Casting Corp., 849 F.2d (11 th Cir.), reh g denied, 859 F.2d 928 (1988); Sweat v. Miller Brewing Co., 708 F.2d 655 (11 th Cir. 1983). 1 The substantive law applicable to the case determines which facts are material. Anderson v. Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505,2510,91 L.Ed.2d 202 (1986). 5

6 In making its determination as to whether there exists a genuine issue of material fact, this Court is not authorized to weigh the relative evidence and make credibility determinations. McKenzie v. Davenport-Harris Funeral Homes, 834 F.2d 930 (11 th Cir. 1987); Warrior Tombigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 1294 (11 th Cir. 1983). The mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case. Haves v. City of Miami, 52 F.3d 918, 921 (11 th Cir. 1995) (citing Anderson, 477 U.S. at ); Combs, 106 F.3d at 1519; Isenbergh, 97 F.3d at ); Spence v. Zimmerman, 873 F.2d 256, 257 (11 th Cir. 1989). A genuine issue of material fact only exists if there is sufficient evidence favoring the non-moving party for a reasonable jury to return a verdict in its favor. Anderson, 477 U.S. at 249-1; Thornton v. E.I. Du Pont De Neours and Co., 22 F.3d 248, 288 (11 th Cir. 1994). Where the legal issue as to which the facts in question pertain is one on which the movant would bear the ultimate burden of proof at trial, the movement must show... Affirmatively the absence of a genuine issue of material fact: it must support its motion with credible evidence... that would entitle it to a directed verdict if not controverted at trial. In other words, the moving party must show that, on all 6

7 the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the non-moving party. If the moving party makes such an affirmative showing, it is entitled to summary judgment unless the non-moving party, in response, come[s] forward with significant, probative evidence demonstrating the existence of a triable issue of fact. Fitzpatrick v. Atlanta, 2 F.3d 1112, 1115 (11 th Cir. 1993) (quoting United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11 th Cir. 1991)). Mere conclusory allegations and assertions are insufficient to create a disputed issue of material fact. Earley v. Champion Int l Corp., 907 F.2d 1077, 1081 (11 th Cir. 1990); Mack v. W.R. Grace Co., 578 F. Supp. 626, 630 (N.D. Ga. 1983); Pelli v. Stone Savannah River Pulp and Paper Corp., 878 F. Supp. 1559, 1565 (S.D. Ga. 1995). For purposes of ruling on a summary judgment motion, the Court should consider all evidence in the light most favorable to the non-moving party. Miles v. Tennessee River Pulp and Paper Co., 862 F.2d 1525 (11 th Cir. 1989). B.PLAINITFF S CLAIMS ARE SUBJECT TO DISMISSAL ON SUMMARY JUDGMENT GROUNDS FOR FAILURE TO COMPLY WITH THE NOTICE REQUIREMENTS CONTAINED IN O.C. G. A and Pursuant to O.C.G.A , when a claim is filed against a county, a plaintiff must comply with proper ante litem notice requirements or the complaint is subject to dismissal 7

8 with prejudice as a matter of law. Specifically, the claim sued on must be presented against the county within twelve (12) months after it accrued or became payable, and where the complaint was not filed and service perfected upon the county within this period, the petition fails to set out a cause of action, and is subject to dismissal. O.C.G.A ; Griffin Realty & Construction Co. v. Chatham County, 47 Ga. App. 545 (1933). The burden is on the plaintiff to demonstrate compliance with the notice requirements, ensuring the municipality has ample opportunity to investigate and settle the claim before suit. Burton v. Dekalb County, 202 Ga.App. 676, 677, 415 S.E.2d 647, 648. In the instant case, Plaintiff has failed to make the necessary showing of timely service of an ante litem notice before filing her suit. This is a fatal error, as O.C.G.A , mandates that the Complaint is subject to dismissal with prejudice, as the timeliness error is incurable. Thus, this Court should dismiss Plaintiff s Complaint in its entirety as a matter of law with prejudice, granting summary judgment in the Defendants favor. 8

9 C. PLAINITFF S STATE LAW CLAIMS ARE SUBJECT TO DISMISSAL BASED ON IMMUNITY GROUNDS 1. Plaintiff s State Law Tort Claims are Barred by the Doctrine of Sovereign Immunity. As a political subdivision of the state of Georgia, DeKalb County enjoys the same protections of sovereign immunity as does the state of Georgia. Toombs County v. O Neal, 254 Ga. 390, 391, 330 S.E.2d 95, 97 (1985). The 1991 amendment to Article I, Section II, Paragraph IX of the Georgia Constitution of 1983 provided that the defense of sovereign immunity as to tort liability can only be waived by a specific legislative act which so provided. Washington v. Department of Human Resources, 241 Ga. App. 319, 321, 526 S.E.2d 354, 356 (1999). Local governments (including counties) are absolutely immune from suit unless a specific statutory exception to sovereign immunity applies. Ga.Const., Art. 1, 2, 9(e); Accord, Gilbert v. Richardson, 264 Ga. 744, 452 S.E.2d 476 (1994) (state's sovereign immunity extends to counties); Tounsel v. State Hwy. Dep t., 180 Ga. 112, 178 S. E. 2d. 285 (1935) (it is incumbent upon plaintiff to bring suit within the legislative authority authorizing his action before suit against county is allowed.) See also O.C.G.A ("a county is not liable to suit for any cause of action unless made so by statute"). 9

10 Additionally, when acting in an official capacity, neither an employee/officer of a county, nor the county itself, may be held liable for tortious acts, unless there is an express statute waiving liability as to that particular cause of action. O.C.G.A , Early County v. Fincher, 184 Ga.App. 47, 48, 360 S.E.2d 602, 604 (1987). Counties are specifically immune from suit based on actions performed by their employees that are performed within the scope of their authority and while engaged in a discretionary function. Hendon v. DeKalb County, 203 Ga. App. 750, 417 S.E. 2d. 705, cert. denied 203 Ga. App. 906, 417 S.E.2d. 705 (1992). Even where actions alleged in the Plaintiff s complaint are attributable to county employees, DeKalb County, as an entity, cannot be held liable for such actions under a theory of respondeat superior or vicarious liability. Gwinnet County v. King, 218 Ga.App. 800, 802, 463 S.E.2d 511, 513 (1995). There exist no general liability for torts sounding in negligence, whether the negligent performance of duties which the county authorizes is alleged or from a discharge of duties voluntarily assumed in the exercise of a discretionary function. McLeod v. Pulaski County, 50 Ga. App. 356, 178 S.E.2d

11 (1935). Moreover, a County is not liable for intentional torts Tounsel, 180 Ga. App. at 112. In Plaintiff s complaint, the allegations that are made against the Defendants involve actions conducted by them in their official capacities as police officers. (See generally, Plaintiff s Complaint for Damages ) Plaintiff cites to no statute in her pleadings by which DeKalb County or its employees have waived the immunity the County and its employees enjoy as to the causes of action alleged against them. To the extent this Court construes the actions of the Defendants vicariously as actions of DeKalb County, a dismissal of the claims made in Plaintiff s Complaint against DeKalb County is warranted, as the doctrine of sovereign immunity bars all such claims. Therefore, this Court should grant summary judgment in Defendants favor, as the doctrine of sovereign immunity protects them from all state law claims, as a matter of law. 2. Plaintiff s State Law Claims Against DeKalb County employees in their official capacities are redundant of the claims against DeKalb County, and should, therefore, be dismissed. As stated above, Plaintiff brings suit against DeKalb County as well as County employees Caviness and Marinelli (See, Plaintiff s Complaint at p. 1 and s 5 and 6). Essentially, by 11

12 naming both DeKalb County and its employees in their official capacities, Plaintiff has brought suit against the same party. Cameron v. Lang et al., 274 Ga. 122, 549 S.E.2d 341 (2001). When an official is sued in his official capacity, naming him as a defendant amounts to a suing of the [county] itself. Copeland v. Smith, et al., 133 Ga. App. 54, 55, 209 S.E.2d 719, 720 (1974); (citing Irwin v. Arrendale, 117 Ga. App. 1(2), 159 S.E.2d 719 (1967). [T]he Supreme Court of Georgia has recognized that a suit against a public employee in his or her official capacity is in essence a suit against the state. Ward v. Dodson, 256 Ga. App. 660, 569 S.E.2d 554 (2002), (citing Cameron v. Lang, 274 Ga. 122, 549 S.E.2d 341 (2001). The Supreme Court of the United States has recognized that [o]fficial capacity suits... generally represent only another way of pleading an action against an entity of which the officer is an agent. Kentucky v. Graham, 473 U.S. 159, 105 S. Ct. 3099, 87 L.Ed.2d 114 (1985), (Citing Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690, n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).... [A]n official capacity suit is, in all respects other than name, to be treated as a suit against the entity. Id. (citing Brandon v. Holt, 469 U.S. 464, 105 S. Ct. 873, 83 L.Ed.2d 878 (1985). 12

13 Here, Plaintiff brings suit against two DeKalb County employees in their official capacities. Plaintiff has also brought suit against DeKalb County. Georgia law is well settled that a suit against a governmental employee in his official capacity is duplicative of the claim brought against the governmental entity. Thus, Officers caviness and Marinelli, to the extent they are sued in their official capacities should be dismissed as party Defendants from the Plaintiff s Complaint as a matter of law, because the claims against them in their official capacities are fundamentally the same claims against Defendant DeKalb County. 3. Sergeant Caviness and Officer Marinelli are immune from suit for all causes of action alleged against them in their individual capacities. The sovereign immunity enjoyed by counties extends to county officials in their individual capacity through the derivative doctrine of official immunity. The concept of official immunity, developed primarily through case law and was made a part of the Georgia Constitution with the passage of the 1991 amendment. Ga. Const., Art. I, 2, 9(d). Official immunity is intended to keep public employees from quitting their jobs from fear of liability, and to promote the vigorous discharge of their duties. 13 The Georgia Supreme Court

14 has interpreted the term official function as used in the Constitution, to mean any act performed within the officer's or employee's scope of authority, including both ministerial and discretionary acts. Gilbert v. Richardson, 264 Ga. 744, 753, 452 S.E.2d 476, 483 (1994). The doctrine of official immunity provides that while a public official may be personally liable for his or her ministerial acts, the public official may not be liable for his or her discretionary acts, unless those acts were willful, wanton, or outside the scope of his or her authority. Delong v. Domenici, 271 Ga. App. 757, 610 S.E.2d 695 (2005). Public officials are even entitled to immunity for negligent performance of discretionary acts. Banks v. Patton, 202 Ga. App. 168, 169, 413 S.E.2d 744, 746 (1991). A discretionary act calls for the exercise of personal deliberation and judgment and includes examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed. Teston v. Collins, 217 Ga. App. 829, 459 S.E.2d 452 (1995). See also Woodward v. Gray, 241 Ga. App. 847, 527 S.E.2d 595 The determination of whether an act is discretionary or ministerial turns on the character of the specific act, not the general nature of the official s position. Schmidt v. Adams, 211 Ga. App. 156, 438 S.E.2d 659, 14

15 660 (1993) (citations omitted). A law enforcement officer is specifically entitled to immunity from liability even though he may commit an error in the exercise of his discretionary judgment, as long as his actions are not malicious, willful, and are not performed with a spirit of corruption. Hennessy v. Webb, 245 Ga. 329, (1980); Peele v. Dobbs, 196 Ga. App. 684 (1990); Morton v. McCoy, 204 Ga. App. 595, (1992). Specifically, to meet his burden in opposing this motion for summary judgment as it relates to her claim for punitive damages, the Plaintiff must now adduce evidence in accord with Rule 56(e), and she may not simply rely upon the unsupported allegations of her Complaint. In the regard, although the Plaintiff makes a claim for punitive damages, the Plaintiff does not know what Sgt. Caviness motives were in stopping her, or whether his motives were wanton or oppressive in nature. (Exhibit B at p. 69, line The Plaintiff cannot adduce further evidence in support of her claim for punitive damages at this time, as discovery has closed and Plaintiff cannot otherwise meet this burden. In the absence of any proof of willfulness on the part of the Defendants, the presumption exists that they are entitled to the protections afforded them by the doctrine of official immunity. That is, all claims 15

16 against them should be dismissed at this stage of the litigation, as a matter of law. D. PLAINTIFF S FEDERAL CLAIMS ARE SUBJECT TO DISMISSAL ON SUMMARY JUDGMENT 1. Defendants Are Entitled To Qualified Immunity. Plaintiff asserts that certain federal constitutional violations occurred in her Complaint, namely, violations of the First, Fourth, and Fourteenth Amendments to the U. S. Constitution. ( Complaint at p. 1, 1). Plaintiff brings these causes through 42 U. S. C et seq. (Id.) Even if this Court finds that a constitutional violation occurred in the case at bar -- which it did not -- these Defendants are protected by qualified immunity from liability as to each of Plaintiff's claims brought pursuant to Section The doctrine of qualified immunity is intended to protect government officials from liability if their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982). Qualified immunity protects all except those who are plainly incompetent or who knowingly violate the law. Malley v. Briggs, 475 U.S. 335, 106 S. Ct. 1092, 1096 (1986). Because qualified 16

17 immunity shields actors in all but exceptional cases, courts should, it has been opined, think long and hard before stripping a defendant of immunity. Lassiter v. Alabama A-M University, 28 F.3d 1146, 1149 (11 th Cir. 1994). The applicability of the qualified immunity defense is a question of law, and, as such, the issue is appropriately decided by a court on summary judgment. Barts v. Joyner, 865 F.2d 1187, 1189, reh'g denied, 871 F.2d 1122 (11 th Cir., cert. denied, 110 S. Ct. 101 (1989) (citing Harlow, 457 U.S. at 818, 102 S. Ct. at 2738). It is clear that once a government official has raised the defense of qualified immunity, the burden of persuasion as to that issue is on the Plaintiff. Montoute v. Carr, 114 F.3d 181, 184 (11 th Cir. 1997). General propositions of constitutional violations are not sufficient for a plaintiff to overcome his burden. Barts, 865 F.2d at 1190; see also Lassiter, 28 F.3d 1146 (11 th Cir. 1994). The Eleventh Circuit recently stressed that for "qualified immunity to be surrendered, pre-existing law must dictate, that it, truly compel (not just suggest or allow or raise a question about), the conclusion for every likesituated, reasonable government agent that what the defendant is doing violates federal law in the circumstances. " Williamson 17

18 v. Mills, 65 F.3d 155, 157 (11 th Cir. 1995) quoting Lassiter, 28 F.3d at In order to determine whether qualified immunity protects these Defendants from liability in the case at bar, the relevant inquiry is whether the Defendants actions violated clearly established law, and that every like-situated, reasonable government agent would have known that he was violating federal law in the same circumstances. "When considering whether the law applicable to certain facts is clearly established, the facts of the cases relied upon as precedent are important. The facts need not be the same as the facts of the immediate case, but they do need to be materially similar." Adams v. St. Lucie Co. Sheriff's Dep't, 962 F.2d 1563, 1575 (11th Cir. 1992) (Edmondson, Jr., dissenting), approved en banc, 998 F.2d 923 (11th Cir. 1993). Here, the Plaintiff has the burden of showing that Defendants are not entitled to qualified immunity for their alleged actions set forth in Plaintiff s Complaint. (See generally, Plaintiff s Complaint ) However, there is no evidence Plaintiff can point to that will overcome the presumption that the Defendants are entitled to qualified immunity as to all federal claims. Specifically, the Plaintiff 18

19 has no evidence to show that every like-situated, reasonable government agent in the position of Sgt. Caviness would have known that he was violating federal law. Though Plaintiff alleged in her complaint that Dekalb County has failed to instruct, supervise and control officers regarding the unconstitutionality of arresting persons for violations of O. C. G. A , she has no evidence of that. In the regard, the Plaintiff was asked during her deposition what evidence she had to support that contention and she responded she had no direct knowledge to support the contention, but was making an inference as to that suggestion. (See, Statement of Material Facts at 25) The Plaintiff was also asked as to the support for her contention as alleged in Paragraph 17 of the Complaint that DeKalb County has customarily arrested and detained persons for violations of O. C. G. A despite the statute s unconstitutionality. The Plaintiff responded that she had no direct knowledge of any persons being so ticketed. (See, Stmt. Material Facts at 24) The Plaintiff was then asked regarding her support for her contention that N. T. Marinelli is the final decision maker for any policy and procedure relating to the arrest and detention of 19

20 persons for violations of O. C. G. A despite the statute s unconstitutionality. The plaintiff responded she has no facts to support that contention, does not know who N. T. Marinelli is, or whether he is the final decision maker for any policy in DeKalb County as alleged, and does not know who would be if N. T. Marinelli is not, and does not know if such a policy even existed in March of (Stmt. Material Facts at 33) Thus, the Plaintiff has not shown, and cannot show, that other similarly situated officers as Sgt. Caviness was on March 10, 2006 would have known they were violating clearly establish law, as there was no history of improper arrests in DeKalb County and no evidence of a policy, practice or custom of allowing such improper arrests in DeKalb County. To the contrary, inasmuch as the evidence suggests that appeared on all officers laptop computers on March 10, 2006, it stands to reason that any other officer would have made an arrest for that same offense, as did Sgt. Caviness. 2. All federal claims against DeKalb County and the Defendants in their official capacities are barred by the federal immunity conferred upon governmental entities. Official Capacity. Plaintiff has brought suit against the Defendants in their official capacities. As a result, these claims must be 20

21 evaluated as claims against DeKalb County, as the Eleventh Circuit has made clear that Section 1983 actions, [s]uits against [public] officials in their official capacities are, effectively, suits against the entity that those officials represent. Free v. Granger, 887 F.2d 1552, 1557 (11 th Cir. 1989); Kentucky v. Graham, 473 U.S. 159, , 105 S.Ct. 3099, (1985). Thus, all of Plaintiff s official capacity claims are subject to all rules of law applicable to claims against the County. Id.; See also Barker v. Brantley County, Ga. 832 F.Supp. 346, 350 (S.D. Ga. 1993), aff d, 19 F.3d 37 (11 th Cir. 1994). Accordingly, any claim against the Defendants Caviness and Marinelli are subject to the same elements of proof (i.e. of a policy or custom) as a claim against DeKalb County. No Unconstitutional Policy. It is well established that a county may be held liable for a violation under 42 U.S.C only if the Plaintiff can prove that the harm complained of was caused "pursuant to an official municipal policy of some nature." Monell v. Dept. of Social Svs., 436 U.S. 658, 691, 98 S. Ct (1978). A county cannot be held liable under the theory of respondeat superior. Monell, 436 U.S. at 691. Rather, a county may be held liable 21

22 only if its official policies cause its employees to violate a person's constitutional rights. City of St. Louis v. Praprotnik, 485 U.S. 112, 122, 108 S. Ct. 915, 923 (1988). It is also well recognized that liability can be based upon an unofficial policy or custom, if it is unconstitutional. Monell, 436 U.S. at ; 98 S. Ct. at However, this "custom" must be "'so permanent and well settled as to constitute a custom or usage with the force of law.'" Id. at 691, 98 S. Ct. at 2036 (quoting, Adickes v. S.H. Kress & Co., 398 U.S. 144, , 90 S. Ct. 1598, (1970)). Additionally, there must be a "series of decisions by a subordinate official manifest[ing] a 'custom or usage' of which the supervisor must have been aware." City of St. Louis, 485 U.S. at 130, 108 S. Ct. at 928 (1988). The Plaintiff must then demonstrate that such decisions "reflect deliberate indifference to the risk that a violation of a particular constitutional or statutory right will follow the decision." Bryan County, Oklahoma v. Brown, 117 S. Ct. 1382, 1392 (1997). The Eleventh Circuit has explicitly stated that in order to show a practice or custom, it is generally necessary to show a persistent and widespread practice. Moreover, actual or constructive knowledge 22

23 of such customs must be attributed to the governing body of the municipality. Normally random acts or isolated incidents are insufficient to establish a custom or policy. Depew v. City of St. Mary's, 787 F.2d 1496, 1499 (11 th Cir. 1986). The Plaintiff generally cannot rely on one incident to prove policy or custom. Anderson v. City of Atlanta, 778 F.2d 678, 685 (11 th Cir. 1992). See also, Young v. City of Augusta, 59 F.3d 1160, 1172 (11 th Cir. 1995). The Plaintiff must prove a "pattern or practice" which causes the county's employees to act in a manner that violates an individual's constitutional rights. Id. In the case at bar, Plaintiff has not cited to any provision of any DeKalb County Police Policy or Manual, or any other similar publication, that represents a policy of deliberate indifference to Plaintiffs constitutional rights. Furthermore, Plaintiff has the burden of showing that DeKalb County has a pattern or custom of violating citizens constitutional rights when applying the rules and regulations of any Police Policy or Manual. At this point, Plaintiff has yet to set forth any evidence in support of this requisite contention, and Plaintiff may not rely upon the bare allegations 23

24 contained in her Complaint in support of such a pattern, practice, or custom. Moreover, discovery has now ended, without the Plaintiff adducing any evidence of a pattern or practice, as is required to sustain this claim. The Plaintiff only deposed Sgt. Rick Caviness during the discovery phase of the case, and he offered no testimony in support of a pattern or practice of denying citizens their constitutional rights in DeKalb County. So, it is reasonable to anticipate that no interrogatory answer, document, or deposition excerpt can now be produced in support of such a purported custom or practice in DeKalb County. Plaintiff may not simply rely upon and refer to the one incident involving herself on March 10, 2006 and her self-serving statements in support of that incident to demonstrate a pattern and practice. Depew, supra. However, she has no other information to support the occurrence of a pattern and practice in DeKalb County. Thus, Defendants should be awarded summary judgment as no genuine issue of material fact can be averred now in support of such an official policy, practice or custom by DeKalb County of denying citizens their constitutional rights. 24

25 IV. CONCLUSION AS has been argued, the Plaintiff s state law claims should be dismissed due to the doctrines of sovereign immunity and official immunity. Plaintiff s federal claims are subject to dismissal as a matter of law pursuant to the doctrine of qualified immunity, as the Plaintiff does not allege, and cannot prove, a violation of clearly established law of which a reasonable person would know in the same circumstance as Officer Caviness. Lastly, the Plaintiff s 1983 claim is subject to dismissal, as the Plaintiff has set forth no evidence whatsoever of an official policy, or unofficial policy, practice or custom of DeKalb County that has caused her any harm by depriving her of a constitutional right, nor can she now adduce such evidence. Inasmuch as no genuine issue of sny material fact can be produce in this regard, the Plaintiff s claim should be dismissed as a matter of law. 25

26 Respectfully submitted this 31st day of August DUANE D. PRITCHETT CHIEF ASISTANT COUNTY ATTORNEY Georgia Bar No /S/STEPHEN E. WHITTED STEPHEN WHITTED SENIOR ASSISTANT COUNTY ATTORNEY Georgia Bar No Attorneys for Defendants PLEASE ADDRESS ALL COMMUNICATIONS TO: Stephen Whitted Senior Assistant County Attorney 1300 Commerce Drive, 5th Floor Decatur, GA (404)

27 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION DENISE GRIER Plaintiff, v. DEKALB COUNTY ET AL. CIVIL ACTION FILE NO. 1:06 CV 2479 Defendants. CERTIFICATE OF SERVICE I certify that on August 8 th, 2007, I electronically filed DEFENDANTS DEKALB COUNTY, Sgt RICK CAVINESS AND N.T. MARINELLI S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT with the Clerk of the Court using the CM/ECF system. I certify that I served this document by depositing a copy of the same in the United States mail in a properly addressed envelope with adequate postage thereon to ensure delivery to: Frank Derrickson, Esquire 755 Commerce Drive, Suite 600 Decatur, Ga 30030

28 This is to further certify that the foregoing document was prepared using 12 pt Courier New font. S/STEPHEN E. WHITTED STEPHEN E. WHITTED SENIOR ASSISTANT COUNTY ATTORNEY Georgia Bar No