United States District Court, M.D. Georgia, Macon Division
ORDER ON DEFENDANTS' MOTIONS TO DISMISS
E. SELF, III, JUDGE UNITED STATES DISTRICT COURT
the Court for consideration is Defendant Danny Brannen's
Motion to Dismiss [Doc. 10], Defendant Billy Cape's
Motion to Dismiss [Doc. 11], Defendant Pulaski County
Sheriff's Office's Motion to Dismiss [Doc. 12], and
Defendant Pulaski County's Motion to Dismiss [Doc. 13].
As explained below, the Court GRANTS each
Defendants' motion except to certain claims against
Defendants Brannen and Cape.
Court takes the following facts from Plaintiff's
Complaint [Doc. 1] and assumes them to be true for the
purposes of ruling on Defendants' Motions to Dismiss
[Docs. 10, 11, 12, 13]. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007). Plaintiff is an
African-American male alleging race discrimination under 42
U.S.C. §§ 2000e et seq. (“Title
VII”) and 42 U.S.C. § 1981. Plaintiff contends
that Defendant Brannen created (and Sheriff Cape tolerated) a
racially-hostile workplace environment and that Sheriff Cape
fired him because he is black. [Doc. 1, at ¶¶ 1,
served as a Deputy in the Pulaski County Sheriff's Office
from June 10, 2010, to on or about December 1, 2014.
[Id. at ¶ 9]. At some point following
Plaintiff's employment, Defendant Brannen (a former
Captain in the Pulaski County Sheriff's Office)
succeeded Defendant Billy Cape as the Pulaski County Sheriff.
[Id. at ¶¶ 10, 11]. Plaintiff alleges
Defendant Brannen (during his tenure as a Captain) made four
“unambiguous” statements causing Plaintiff to
believe that Brannen “harbored racial animus
against African Americans in general and against Plaintiff
Blash specifically.” [Id. at ¶ 15]
(italics in original).
Plaintiff contends that Defendant Brannen stated, “If
you're black and your lips are moving you're
lying.” [Id. at ¶ 16]. After learning of
Brannen's alleged statement (apparently from someone
other than Plaintiff), former Sheriff Cape directed Brannen
to take an anger management course. [Id. at ¶
17]. Second, after Plaintiff arrested a
white woman (at the direction of Cape), Plaintiff contends
that Brannen told the woman, “Don't worry, I will
get that [ni-er] before you do.” [Doc. 1, at ¶
18]. Third, Plaintiff alleges that a white deputy, Jay Wood,
received a promotion over an African American deputy, Mike
Thomas. [Id. at ¶ 19]. Apparently, Thomas, who
had worked for the Sheriff's Office longer than Wood,
asked Defendant Brannen why he did not receive the promotion,
and Brannen replied, “We promote one black and one
white.” [Id.]. Finally, Plaintiff alleges that
Brannen ordered Deputy Thomas (the same deputy described
above) to use a Taser on a black inmate. When Deputy Thomas
refused, Brannen allegedly said, “When I tell you to
Taze a [m ---------- r], you better Taze him.”
[Id. at ¶ 20]. Plaintiff further complains that
former Sheriff Cape knew of Brannen's statements and
“did nothing about it.” [Id.]. Based on
these “and other similar actions, ” Plaintiff
alleges that Defendant Brannen created and maintained, and
former Sheriff Cape tolerated, a racially-hostile workplace.
[Id. at ¶ 21].
about December 1, 2014, Sheriff Cape terminated Plaintiff for
allegedly interfering with a criminal investigation involving
a postal employee suspected of stealing pills being sent in
the mail. See [Doc. 1, at ¶¶ 24, 29].
However, Plaintiff alleges that Sheriff Cape actually fired
him simply because he is black.
events surrounding Plaintiff's termination involve an
October 2014 Sheriff's Office investigation and
successful sting operation that resulted in the arrest of a
female postal worker suspected for theft of or improper
acquisition of medication for the purpose of distribution.
[Id. at ¶ 25]. Plaintiff allegedly told a
civilian to stay away from the postal employee suspected of
stealing pills. [Id. at ¶ 24]. According to his
complaint, Plaintiff allegedly made this communication
despite a lack of probable cause or the fact that authorities
never identified the civilian as a potential suspect or
person of interest. [Id. at ¶¶ 24, 25].
also contends that “[a]t the time of his alleged
‘interference with an investigation' . . . the
investigation had already been concluded and the sting
successful.” [Id.]. Initially, the
Sheriff's Office asked Plaintiff to resign, but Plaintiff
refused to do so because he believed he had done nothing
wrong. [Id. at ¶ 30]. Plaintiff alleges that
he- as well as Defendants Brannen and Cape-was aware of the
“common practice of officers telling civilians that
they should stay away from potential criminals” and, in
essence, asserts that his termination for the alleged offense
of interference with an investigation “was
bogus.” [Doc. 1, at ¶ 27]. Plaintiff was
especially upset that he was fired without the Sheriff or the
Georgia Bureau of Investigation conducting an “official
investigation” into his conduct like two white officers
received when they were accused of committing a
crime. [Id. at ¶¶ 33, 35].
appealed his termination to the sole commissioner for Pulaski
County. [Doc. 1, at ¶ 32]. The Commissioner ultimately
upheld the termination on the grounds that “the Sheriff
. . . is a Constitutional Officer who has exclusive authority
over employees of the Sheriff's [O]ffice.”
[Id.]. After his termination, the Pulaski County
Grand Jury indicted him for interfering with an
investigation. [Id. at ¶ 37]. Subsequently,
authorities arrested Plaintiff. [Id. at ¶¶
38, 39]. The District Attorney ultimately moved to dismiss
the indictment against Plaintiff, whereupon the superior
court entered an order to “nol pross”
Plaintiff's charges. [Id. at ¶¶ 39,
summarize, Plaintiff avers that Defendants Brannen and Cape
subjected him to a racially hostile workplace environment and
discharged him on the basis of race. [Id. at
¶¶ 42, 43]. As a result, Plaintiff asserts the
following claims: Count 1, race discrimination under Title
VII; Count 2, racial harassment under Title VII; Count 3,
race discrimination under § 1983; and Count 4 racial
harassment under § 1983. [Doc. 1, at 13, 14].
Motion to Dismiss Standard of Review
seek to dismiss Plaintiff's action against them for
failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6).
When ruling on a 12(b)(6) motion, a district court must
accept the facts set forth in the complaint as true.
Twombly, 550 U.S. at 572. Only a complaint that
states a plausible claim for relief survives a motion to
dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009). In fact, a well-pled complaint may proceed even if it
strikes a savvy judge that actual proof of those facts is
improbable, and “that a recovery is very remote and
unlikely.” Twombly, 550 U.S. at 556. The issue
to be decided when considering a motion to dismiss is not
whether the claimant will ultimately prevail, but
“whether the claimant is entitled to offer evidence to
support the claims.” Scheuer v. Rhodes, 416
U.S. 232, 236 (1974), overruled on other grounds by Davis
v. Scheuer, 468 U.S. 183 (1984).
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice. Iqbal,
556 U.S. at 678. While courts, in ruling on a motion to
dismiss, must take all of the factual allegations in the
complaint as true; they are not bound to accept a legal
conclusion couched as a factual allegation. Id. at
678. Further, a complaint fails to state a claim if it does
not include “sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Id. (quoting Twombly,
550 U.S. at 570). The factual allegations in a complaint
“must be enough to raise a right to relief above the
speculative level” and cannot “merely create a
suspicion [of] a legally cognizable right of action.”
Twombly, 550 U.S. at 545, 555 (first alteration in
original). Finally, complaints that tender
“‘naked assertion[s]' devoid of
‘further factual enhancement'” will not
survive against a motion to dismiss. Iqbal, 556 U.S.
at 678 (quoting Twombly, 550 U.S. at 557)
(alteration in original). Stated differently, the complaint
must allege enough facts “to raise a reasonable
expectation that discovery will reveal evidence”
supporting a claim. Twombly, 550 U.S. at 556.
the foregoing standard in mind, and taking the facts asserted
in Plaintiff's complaint as true, the Court rules on the
Defendants' respective Motions to Dismiss [Docs. 10, 11,
complaint, Plaintiff asserts four counts: racial
discrimination and racial harassment under Title VII (Counts
1 & 2) and racial discrimination and racial harassment
under § 1981 via § 1983 (Counts 3 & 4). [Doc.
1, at 13-14]. In deciding the pending Motions to Dismiss
[Docs. 10, 11, 12, 13], the Court takes each claim as it
relates to each Defendant, in turn below:
Defendant Pulaski County Sheriff's Office's
Motion to Dismiss [Doc. 12]
initial matter, the Court addresses Plaintiff's claims
for race discrimination and racial harassment asserted
against Defendant Pulaski County Sheriff's Office. The
issue of whether a government entity is capable of being sued
is “determined by the law of the state in which the
district court is held.” Fed.R.Civ.P. 17(b); accord
Lawal v. Fowler, 196 F. App'x. 765, 768 (11th Cir.
2006). Under Georgia law, only three classes of legal
entities are capable of being named in a lawsuit: “(1)
natural persons; (2) an artificial person (a corporation);
and (3) such quasi-artificial persons as the law recognizes
as being capable to sue.” Lawal, 196 Fed.Appx.
at 768 (citing Ga. Insurers Insolvency Pool v. Elbert
Cty., 368 S.E.2d 500, 502 (Ga. 1988)). A sheriff's
office does not fall into any of the categories and therefore
is not capable of being sued. Ashley v. Chafin, No.
7:07-cv-177(HL), 2009 WL 3074732, at *3 (M.D. Ga. Sept. 23,
response, Plaintiff conceded the point and agreed that the
Pulaski County Sheriff's Office should be dismissed.
See [Doc. 28]. Accordingly, the Court
GRANTS Defendant Pulaski County
Sheriff's Office's Motion to Dismiss [Doc. 12] all
claims asserted against it.
Defendant Pulaski County's Motion to Dismiss [Doc.
Pulaski County filed its own Motion to Dismiss [Doc. 13]. In
short, Pulaski County argues that Georgia law's treatment
of sheriff's employees leads to the inevitable conclusion
that the county and a sheriff's office are independent,
separate, and distinct from one another. See [Doc.
13, at 5]. The County argues that under O.C.G.A. §
15-16-23, sheriffs alone hire and fire their deputies and
therefore are employees of the sheriff, not the county.
[Id.]; see also Manders v. Lee, 338 F.3d
1304, 1311 (11th Cir. 2003); Employees Retirement Sys. v.
Lewis, 136 S.E.2d 518, 521 (Ga.Ct.App. 1964) (holding
that sheriffs alone are entitled to appoint and discharge
their employees). Most importantly, Defendant Pulaski County
points out that “Georgia's Constitution  makes
the sheriff's office a constitutional
office independent from the county entity
itself, precludes all county control, and grants only the
State control over sheriffs . . . .” Manders,
338 F.3d at 1312. Therefore, Pulaski County cannot be held
liable under either of Plaintiff's Title VII claims.
Counts 3 and 4, Plaintiff asserts claims against Pulaski
County for race discrimination and a hostile work environment
pursuant to § 1981, again via § 1983. [Doc. 1, at
14]. Monell v. Department of Social Services of City of
New York, holds that local governing bodies can be sued
directly under § 1983 for relief where the alleged
unconstitutional action implements or executes a policy
statement, ordinance, regulation, or decision officially
adopted and promulgated by that body's officers. 436 U.S.
658, 690 (1978). The very essence of a § 1983 action
against a government body is an allegation that official
policy is responsible for a deprivation of constitutionally
protected rights. Id. at 690-91. Therefore,
“local governments, like every other § 1983
‘person,' by the very terms of the statute, may be
sued for constitutional deprivations visited pursuant to
governmental ‘custom' even though such a custom has
not received formal approval through the body's official
decision-making channels.” Id. (quotations in
original). “If a county official holds final
policymaking authority for the county in the subject area of
the alleged constitutional violation, that official's
decisions may constitute county policy.” Gattis v.
Brice, 136 F.3d 724, 725 n.2 (11th Cir. 1998). However,
the determination of whether a county official holds final
policymaking authority is a question of state law. City
of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988).
Plaintiff seems to allege that the actions of Pulaski
County's former sheriff constitute the promulgated policy
necessary to subject Pulaski County to § 1983 liability.
However, as discussed above, Georgia law makes the Office of
the Sheriff a completely independent and separate entity from
the county. See Manders supra; see also
supra Ga. Const. art. IX, § 2, ¶ 1(c)(1).
Finally, while the Sheriff may be considered a
“policymaking official, ” the Georgia Court of
Appeals has held that the sheriff himself, and not the
county, is liable for misconduct within the Office of the
Sheriff. Brown v. Jackson, 470 S.E.2d 786, 787
(Ga.Ct.App. 1996). For these reasons, as well the fact that
Plaintiff did not oppose the County's Motion to Dismiss
[Doc. 29], the Court GRANTS Pulaski
County's Motion to Dismiss [Doc. 13] all claims asserted
Defendant Brannen's Motion to Dismiss [Doc.
brings suit against Danny Brannen in both his individual and
official capacities. See [Doc. 1, at ¶ 5]. In
his complaint, Plaintiff asserts claims against Defendant
Brannen under Title VII and § 1983 relating to
Plaintiff's alleged discriminatory termination and
Defendant Brannen's purported creation of a racially
hostile work environment.
Plaintiff's Title VII Claims Asserted Against Brannen in
His Individual Capacity
the Court addresses the individual capacity claims asserted
against Defendant Brannen under Title VII: Count One, race
discrimination and Count Two, racial harassment. [Doc. 1, at
Brannen seeks dismissal of the race discrimination and racial
harassment claims against him on the grounds that individuals
are not amenable to suit under Title VII.See Dearth v.
Collins, 441 F.3d 931, 933 (11th Cir. 2006). In his
Response [Doc. 30], Plaintiff acknowledges that dismissal of
Count One (Race Discrimination, Title VII) and Count 2
(Racial Harassment, Title VII) is appropriate as to Defendant
Brannen in his individual capacity because Title VII does
not, in fact, provide for individual liability. See
[Doc. 30, at 2]. Therefore, the Court GRANTS