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Neal v. Dekalb County

United States District Court, N.D. Georgia, Atlanta Division

January 25, 2018

JASON NEAL, Plaintiff,
DEKALB COUNTY, GEORGIA; OFFICER C.A. INGS, OFFICER M.T. HAMER, in their individual capacities and individual capacities; JOHN DOE 1-2, in their individual and official capacities, Defendants.



         This 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 [32] (“Defendants' Motion”) and Plaintiff Jason Neal's (“Plaintiff”) Motion for Summary Judgment [35] (Plaintiff's Motion).

         I. BACKGROUND

         A. Facts[1][2]

         On 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.”) [34] at 47:5-7).

         Plaintiff's 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 manager.

(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).

         Unable 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.[3] (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.

         B. Procedural History

         On 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).

         On January 20, 2016, Defendants removed the action to federal court. ([1]). On January 27, 2016, Defendants filed their Motion to Dismiss Plaintiff's Complaint [2] 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). ([6] 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.).

         On June 12, 2017, Defendants and Plaintiff filed their respective Motions for Summary Judgment.


         “Summary 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).

         The 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 ...

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