United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DIJFFEY, JR., UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants Officer C.A. Ings
and Officer M.T. Hamer's (collectively,
“Defendants”), in their individual capacities,
Motion for Summary Judgment  (“Defendants'
Motion”) and Plaintiff Jason Neal's
(“Plaintiff”) Motion for Summary Judgment 
November 8, 2013, while at the Home Depot, at 4325 New
Snapfinger Woods Drive, Decatur, Georgia, Plaintiff and his
co-worker “slipped out” a piece of a plumbing
product from its package to see if it was the product they
needed for a plumbing job. (D. SUMF ¶ 4; R-D. SUMF
¶ 4; Deposition of Jason Neal (“Neal Dep.”)
at 13-15). Plaintiff placed the product on the display case,
went to the return counter, and told his co-worker to get
something from their car. (D. SUMF ¶ 4; R-D. SUMF ¶
4; Neal Dep. at 11:8-24). When the co-worker exited the store
to go to the car, he set off the security sensors because he
“inadvertently” took the empty package with him.
(D. SUMF ¶ 3; R-D. SUMF ¶ 3). Defendants Ings and
Hamer, POST-certified DeKalb County police officers who were
working as part-time security officers at the store during
the incident, stopped Plaintiff's co-worker. (D. SUMF
¶¶ 2, 5; R-D. SUMF ¶ 3). Defendants were
wearing their DeKalb County Police Department uniforms at the
time. (Deposition of Charles Ings (“Ings Dep.”)
 at 47:5-7).
co-worker told Defendants Ings and Hamer that Plaintiff was
at the return counter, and Plaintiff walked Defendants to the
aisle where he left the contents of the package they opened.
(D. SUMF ¶ 6; R-D. SUMF ¶ 6). Defendants questioned
Plaintiff about the product he removed from the package. (D.
SUMF ¶ 7; R-D. SUMF ¶ 7). During their discussion
about the empty package, Plaintiff became increasingly upset
because Defendants continued to insist he submit to a search.
(D. SUMF ¶ 8; R-D. SUMF ¶ 8; Neal Dep. at 16:20-21,
17:2-13, 18:8-9). Plaintiff told Defendants that he
“didn't steal s ___.” (D. SUMF ¶ 11;
R-D. SUMF ¶ 11; Neal Dep. at 16:11-25, 18:8-12).
Plaintiff was “indignant about the situation, ”
stating in his deposition:
And I'm looking [at one of the Defendants] in the eyes
and talking to the man like I'm looking at you and he
told me if I don't stop looking at him that he was gonna
arrest me; and I'm saying, well, why can't I look - I
mean I ain't did nothing [sic]. Why can't I look at
you? And he told me to shut up, and I said I can talk. I did
say I can talk and I'm talking to you now, and he just
went on and on. . . . And then I said I want to talk to the
(Neal Dep. at 17:13-20). Customers and Home Depot employees
were in the vicinity during Plaintiff's conversation with
Defendants. (D. SUMF ¶ 11; R-D. SUMF ¶ 11; Neal
Dep. at 16:11-25, 18:8-12).
to resolve the matter, and as a result of Defendant's
conduct, Defendants informed Plaintiff that he would be cited
for disorderly conduct. (Neal Dep. at 17:21-25). Defendants
escorted Plaintiff outside of the store, searched him, and
issued him a citation for violating DeKalb County Ordinance
§ 16-58. (D. SUMF ¶ 18; R-D. SUMF ¶ 18;
Ings Dep. at 44:17-21; Hamer Dep. 43:18-22). After receiving
the citation, Plaintiff was permitted to, and did, return to
the store. (D. SUMF ¶ 18, 21; R-D. SUMF ¶ 18, 21;
Ings Dep. at 44:17-21; Hamer Dep. 43:18-22). Plaintiff
returned to the store to retrieve contact information for
witnesses he might use in future litigation related to his
disorderly conduct citation. (Id.). Plaintiff was
asked to leave the store shortly after he returned to collect
the contact information. (D. SUMF ¶ 23; R-D. SUMF ¶
12). He complied with the request to leave. (Id.).
Plaintiff moved in the Recorder's Court for DeKalb County
for a general demurrer on his citation for disorderly
conduct. The motion was granted on July 14, 2014.
December 4, 2015, Plaintiff filed his Complaint in the
Superior Court of DeKalb County asserting the following
claims: (1) violation of Plaintiff's First Amendment
rights, pursuant to 42 U.S.C. § 1983 (Count 1); (2)
violation of Fourth Amendment right to be free from unlawful
search and seizure, pursuant to Section 1983 (Count 2); (3)
violation of Fifth and Fourteenth Amendment due process
rights, pursuant to Section 1983 (Count 3); (4) false
imprisonment, O.C.G.A. §51-7-20 (Count 4); (5) false
arrest, O.C.G.A. §51-7-1 (Count 5); (6) malicious
prosecution, O.C.G.A. §51-7-40 (Count 6); (7) violation
of state constitutional right to free speech, Georgia
Constitution, Art. I, Sec. I., Para V. (Count 7); (8)
violation of state constitutional right to be free from
unreasonable search and seizure, Georgia Constitution, Art.
I, Sec. I., Para XIII (Count 8); (9) violation of state
constitutional due process, Georgia Constitution, Art. I,
Sec. I., Para I (Count 9); claims for injunctive and
declaratory relief (Counts 10); and a cause of action for
“proximate cause” (Count 11).
January 20, 2016, Defendants removed the action to federal
court. (). On January 27, 2016, Defendants filed their
Motion to Dismiss Plaintiff's Complaint  arguing that
(1) Plaintiff's claims under 42 U.S.C §1983 against
DeKalb County and Officers Ings and Hamer, in their official
capacities, should be dismissed because Plaintiff failed to
sufficiently show that a deprivation of Plaintiff's
constitutional rights occurred as a result of an official
policy or custom; (2) Plaintiff's Section 1983 claims
against Officers Ings and Hamer in their individual
capacities were barred by qualified immunity; (3)
Plaintiff's state law claims against DeKalb County and
Officers Ings and Hamer, in their official capacities, were
barred by sovereign immunity and official immunity; and (4)
Plaintiff failed to state a claim for false imprisonment,
malicious prosecution, or false arrest. On June 27, 2017, the
Court issued its ruling denying the Motion to Dismiss with
respect to Plaintiff's Section 1983 claims against the
Officer Defendants in their individual capacities for
violations of the First Amendment (Count 1), Fourth Amendment
(Count 2), and Fifth and Fourteenth Amendments (Count 3).
( at 21). The Court granted the Motion to Dismiss as to
Plaintiff's remaining claims, and dismissed Defendant
DeKalb County, Georgia from the action. (Id.).
12, 2017, Defendants and Plaintiff filed their respective
Motions for Summary Judgment.
judgment is appropriate where the pleadings, the discovery
and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of
law.” Ahmed v. Air France-KLM, 165 F.Supp.3d
1302, 1309 (N.D.Ga. 2016); see Fed.R.Civ.P. 56.
“An issue of fact is material if it ‘might affect
the outcome of the suit under the governing law.'”
W. Grp. Nurseries, Inc. v. Ergas, 167 F.3d 1354,
1360 (11th Cir. 1999) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)). “An issue of fact
is genuine ‘if the evidence is such that a reasonable
jury could return a verdict for the nonmoving
party.'” Id. at 1361 (quoting
Anderson, 477 U.S. at 248).
party seeking summary judgment “bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying [materials] which it believes
demonstrate the absence of a genuine issue of material
fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). “The movant[ ] can meet this burden by
presenting evidence showing there is no dispute of material
fact, or by showing that the nonmoving party has failed to
present evidence in support of some element of its case on
which it bears the ultimate burden of proof.”
Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274,
1281-82 (11th Cir. 1999). The moving party need not
“support its motion with affidavits or other similar
materials negating the opponent's claim.”
Celotex, 477 U.S. at 323. Once the moving party has
met its initial burden, the nonmoving party must demonstrate
that summary judgment is inappropriate by designating
specific facts showing a genuine issue for trial.
Graham, 193 F.3d at 1282. The nonmoving party
“need not present evidence in a form necessary for
admission at trial; however, he may not merely ...