United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on collective Defendants Officer Jesus Maldonado ("Maldonado"), Sergeant W. Furman ("Furman"), Lieutenant Oliver Fladrich ("Fladrich"), Deputy Chief David Sides ("Sides"), Chief Billy Grogan ("Grogan"), the Dunwoody Police Department, and the City of Dunwoody's Motion to Dismiss ("Motion" ).
A. Plaintiff's allegations
This action is brought under 42 U.S.C. §§ 1983, 1988 and arises out of a traffic stop. Plaintiff alleges that Defendants violated her rights under the United States Constitution and Paragraph XIII of the Georgia Constitution.
Plaintiff alleges that, on January 16, 2014, she backed her car out of a parking space inside of the garage where she lived. Officer Maldonado, who was parked in his police vehicle across the street, observed Plaintiff pull out of her apartment complex. Plaintiff alleges he followed her for approximately two or three miles. (Compl. at ¶ 3-5). Maldonado pulled Plaintiff over and told her that he stopped her because she was "hovering on Ashford Dunwoody." (Id. at ¶ 6). Plaintiff claims that Maldonado told her that several car break-ins had occurred in the apartment complex where Plaintiff lived. He then questioned her about the car she was driving, including whether the car belonged to her or a friend. At Maldonado's request, Plaintiff gave him her vehicle registration. Plaintiff claims that he "called in" a vehicle other than the one she was driving. Plaintiff contends that she told Maldonado she worked at the building where she had been pulled over, but that he questioned whether she actually worked at the location and accused her of lying. She also alleges that Maldonado falsely accused her of being a suspect in two disorderly conduct cases. (Id. ¶¶ 7-11). Plaintiff also asserts that Maldonado was "unprofessional" and "rude" during the stop. Plaintiff claims that "Maldonado unlawfully racially profiled [her]" and initiated the traffic stop. (Id. at ¶ 14).
Plaintiff filed a grievance about Maldonado's conduct. She alleges Defendant Furman sought to discredit her grievance by claiming Plaintiff made disparaging remarks about Maldonado by calling him a "short mexi." (Compl. at ¶ 15). Plaintiff also alleges Furman's investigative report contained intentionally misleading statements in order to discredit and defame her. Plaintiff also claims Furman falsely reported that Plaintiff was stopped for failure to maintain her lane.
Plaintiff alleges Defendant Fladrich "never watched the video of Plaintiff being pulled over and referred to her as gal.'" (Compl. at ¶ 19). Plaintiff contends that Grogan and Sides "claimed that Officer Maldonado's stop was lawful despite all evidence to the contrary." (Id. at ¶ 20). Plaintiff alleges all of the Defendants acted under color of state law. (Id. at ¶ 21).
B. The claims
Plaintiff, proceeding pro se, filed her Complaint ("Complaint" ) on February 19, 2014. In it, she seeks to recover $2, 500, 000 in compensatory damages, as well as unspecified damages for emotional distress and "violations of her Constitutional rights under federal and Georgia law, " and "an award for all damages recognized by law and recoverable for violations of her rights." (Id. at ¶ 39).
Plaintiff seeks damages from Maldonado in his official and individual capacity on the grounds that he "stopp[ed] and detain[ed] her without probable cause in violation of Plaintiff's Federal 4th Amendment rights... [and] Paragraph XIII of the Georgia Constitution." (Id. at ¶¶ 23, 25). She seeks further damages on the grounds that the stop was "based on race, " which "[violated] U.S. Federal law... [and] Georgia law." (Id. at ¶¶ 27, 29). She "claims damages from the negligent actions of Officer Maldonado when he called in the number of a different car while he had Plaintiff pulled over... in contradiction to best practices and put plaintiff in a dangerous situation." (Id. at ¶ 33).
Plaintiff also seeks damages from Furman, Fladrich, Sides, and Grogan in their individual and official capacities for negligently failing to properly investigate Plaintiff's claim of racial profiling. (Compl. at ¶ 35). Plaintiff claims damages for emotional distress she purportedly suffered arising out of their "outrageous conduct." (Id. at ¶ 31). She seeks damages from the Dunwoody Police Department and City of Dunwoody for failing to "properly train and monitor its agents." (Id. at ¶¶ 37, 39).
On February 21, 2014, Plaintiff sent to Maldonado, Furman, Fladrich, Sides, and Grogan (collectively, "Officer Defendants"), the Dunwoody Police Department, and the City of Dunwoody, certified copies of the Complaint and Summons by certified mail. (Return of Service ).
C. Motion to Dismiss
On March 12, 2014, Defendants moved to dismiss the Complaint on the ground that Plaintiff failed to perfect service on Defendants. They argue that "plaintiff's attempt to serve the defendants by certified mail does not meet the requirements of Rule 4 to provide this court with personal jurisdiction." (Mot. at 5). They argue that Plaintiff's service of the Officer Defendants at the Dunwoody Police Department was insufficient where "the service of process statute requires that the server leave it at the defendant's dwelling." (Id. at 5-6). Defendants also move to dismiss the Complaint on the ground that Plaintiff cannot assert individual capacity claims against Furman, Fladrich, Sides, and Grogan because these defendants have qualified immunity. (Id. at 7). Maldonado, in a footnote, states that he "raises and does not waive his entitlement to dismissal on the grounds of qualified immunity and the plaintiff's failure to state a claim against him in his individual capacity." (Mot. at 7 n.1). He states that he reserves his right to assert these and other defenses in his answer following proper service of process. (Id.). Defendants next argue that the Court must dismiss Plaintiff's state law claims against the City of Dunwoody because Plaintiff failed to file the requisite ante litem notice. (Id. at 9). Finally, Defendants argue that the Court must dismiss Plaintiff's claims against the Dunwoody Police Department because police departments are not an entity against which this action may be filed. (Id. at 10).
Plaintiff "concede[s] to Defendant's assertion that she failed to provide proper service to the Defendants in this matter." (Resp. to Def.'s Mot. "Response" [6.1] at 2). Plaintiff argues, however, that Defendants have not shown that they cannot "defend against this action" and that she "made a good faith attempt to provide Defendants with service in a manner she thought was proper... [by sending] the notice to the only address that was available to her at that time." (Id.). She requests that the Court "grant a certain amount of leniency' and ...