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Larry v. Mercer

United States District Court, S.D. Georgia, Savannah Division

April 21, 2015

JULIUS JAMES LARRY, IV, Plaintiff,
v.
RAYMOND MERCER, EVERETT RAGAN, CITY OF SAVANNAH, TODD MARTIN, GILBERT STACY, MICHAEL EDWARDS, NOAH ABRAMS, MEG HEAP, AL ST. LAWRENCE, and CHATHAM COUNTY, Defendants.

REPORT AND RECOMMENDATION

G.R. SMITH, Magistrate Judge.

Julius Larry, a detainee who is proceeding in forma pauperis ("IFP"), has filed a 42 U.S.C. § 1983 complaint seeking damages from virtually everyone involved in his prosecution and subsequent acquittal for the sale of cocaine. (Doc. 1 at 5.) None of his claims survives initial screening, and therefore his complaint should be dismissed.[1]

Plaintiff challenges his December 19, 2012 arrest "without an arrest warrant" by Raymond Mercer, (doc. 1 at 5), and he seeks damages in the complaint's "relief" section for false imprisonment and false arrest. "An arrest without a warrant and lacking probable cause violates the Constitution and can underpin a § 1983 claim, but the existence of probable cause at the time of arrest is an absolute bar to a subsequent constitutional challenge to the arrest. Case v. Eslinger, 555 F.3d 1317, 1326-27 (11th Cir. 2009); Kingsland v. City of Miami, 382 F.3d 1220, 1226, 1232 (11th Cir. 2004); Ortega v. Christian, 85 F.3d 1521, 1525 (11th Cir. 1996)." Brown v. City of Huntsville, 608 F.3d 724, 734 (11th Cir. 2010). While Larry was arrested without a warrant, he never asserts that the arrest was made without probable cause. Hence, this claim fails.[2]

Larry also complains that because his public defender (Todd Martin) and an assistant district attorney (Noah Abrams) waived his right to a probable cause hearing, he was held over 48 hours without receiving a judicial determination of probable cause. (Doc. 1 at 5.) He also faults another public defender, Gilbert Stacy, for refusing to file a motion for bond. (Doe. 1 at 5.) While "persons arrested without a warrant must promptly be brought before a neutral magistrate for a judicial determination of probable cause, " County of Riverside v. McLaughlin, 500 U.S. 44, 53 (1991) (citing Gerstein v. Pugh, 420 U.S. 103, 114 (1975)), Larry never alleges that he was not afforded the right to a prompt probable cause hearing. Instead, he asserts only that counsel waived his right to a preliminary hearing without his consent. In other words, it is his attorney's claimed ineffectiveness that he challenges, not some flawed judicial process or practice, or some police officer's failure to bring him before a judge for a prompt determination of probable cause. Yet, § 1983 affords Larry no relief because public defenders (including supervisory Circuit Public Defender Michael Edwards) do not act under "color of state law" within the meaning of § 1983. Polk v. Dodson, 454 U.S. 314, 317-19 (1981); id. at 325 ("a public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding."). These claims thus also fail.

Larry names Michael Edwards, Savannah Chatham County Metropolitan Police Major Everett Ragan, and District Attorney Meg Heap as defendants for "allowing" their underlings to commit these various injustices. (Doc. 1 at 5.) As the underlying claims have no merit, his claims against these supervisors fail. In addition, claims brought pursuant to § 1983 cannot be based upon theories of vicarious liability or respondeat superior. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); Dodson, 454 U.S. at 325; Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978); Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999). Rather, Larry must demonstrate either that these supervisory defendants directly participated in the alleged constitutional deprivations or that there is some other causal connection between their acts or omissions and the violation of his constitutional rights. Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003); Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1998) (per curiam). This he has failed to do.[3]

Similarly, Larry has not made any direct allegations against the City of Savannah or Chatham County. He thus fails to meet Fed.R.Civ.P. 8's pleading standards as to them. And any attempt to reach them as the individual defendants' employers would fail since the underlying claims fail.[4] Furthermore, a claim for damages against Sheriff Al St. Lawrence in his official capacity (for failing to release Larry) is barred by the doctrine of sovereign immunity. (Doc. 6 at 2.) As an "arm of the state, " his actions are shielded by the Eleventh Amendment. Rylee v. Chapman, 316 F.Appx. 901, 905 (11th Cir. 2009) (quoting Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003), and Powell v. Barrett, 496 F.3d 1288, 1304 (11th Cir. 2007)).

Plaintiff's complaint should be DISMISSED and his motion for summary judgment should be DENIED. (Doc. 7.) Meanwhile, Larry is statutorily required to pay the filing fee for this lawsuit. Based upon his furnished information, he owes a $37.42 initial partial filing fee. See 28 U.S.C. § 1915(b)(1) (requiring an initial fee assessment "when funds exist, " under a specific 20 percent formula). Plaintiff's account custodian, however, shall set aside 20 percent of all future deposits to the account and forward those funds to the Clerk each time the set aside amount reaches $10, until the balance of the Court's $350 filing fee has been paid in full. In the event plaintiff is transferred to another institution, plaintiff's present custodian shall forward a copy of this Order and all financial information concerning payment of the filing fee and costs in this case to plaintiff's new custodian. The balance due from the plaintiff shall be collected by the custodian at his next institution in accordance with the terms of this Order.

A copy of this Order and a copy of the Consent to Collection of Fees from Trust Account shall be served upon plaintiff and his current custodian. The payment portion of this Order is to be implemented immediately, as it is not subject to the adoption provision of Fed.R.Civ.P. 72(b).

SO REPORTED AND RECOMMENDED.


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