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Jordan v. Freeseman

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

January 18, 2019

HOWARD JORDAN, JR., Plaintiff,
v.
PENNY HAAS FREESEMANN, et al., Defendants.

          ORDER AND REPORT AND RECOMMENDATION

          Christopher L. Ray, United States Magistrate Judge

         Proceeding pro se and in forma pauperis, Howard Jordan, Jr., brings this 42 U.S.C. § 1983 action against various state agencies and officials involved in his arrest and prosecution.[1] Doc. 1. The Court granted his request to pursue his case in forma pauperis (IFP), doc. 3, and he returned the necessary forms. Docs. 5 & 6. The Court now screens the Complaint pursuant to 28 U.S.C. § 1915A, which requires the immediate dismissal of any pro se complaint that fails to state at least one actionable claim.[2]

         Jordan was arrested on October 6, 2017, after Officer Montano “said” he failed to pull over for speeding. Doc. 1 at 5. He's been in Chatham County Jail since his arrest, and complains that in two separate hearings Defendant Judge Freesemann has “refused to correct this wrong.” Id. Sheriff Wilcher, too, holds him against his will in collusion with the Judge. Id. He seeks immediate release and damages for his “mental anguish, ” and suggests a lien be placed on defendants' assets until he has “been compensated and vindicated.” Id. at 6.

         Liberally construed, plaintiff's Complaint implicates false arrest or false imprisonment, constitutional torts which afford a remedy for detention without legal process. See Wallace v. Kato, 549 U.S. 384, 389 (2007) (a false arrest claim based on a warrantless arrest is “a species” of a false imprisonment claim). “A warrantless arrest without probable cause violates the Fourth Amendment and forms the basis for a section 1983 claim.” Ortega v. Christian, 85 F.3d 1521, 1525 (11th Cir. 1996) (cite omitted). Further, “[a] detention on the basis of a false arrest presents a viable section 1983 action” for false imprisonment. Id. at 1526. The elements of such a claim combine “the elements of common law false imprisonment, ” which include “(1) an intent to confine, (2) acts resulting in confinement, and (3) consciousness of the victim of confinement or resulting harm, ” and an allegation that the imprisonment resulted in a violation of the plaintiff's due process rights under the Fourteenth Amendment. Id. at 1526, 1526 n. 2.

         The Court has an obligation to liberally construe pro se pleadings. See, e.g., Estelle v. Gamble, 429 U.S. 97, 106 (1976); Gilbert v. Daniels, 624 Fed.Appx. 716, 717 (11th Cir. 2015) (“We liberally construe the pleadings of pro se parties. . . .”) (citing Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168 (11th Cir. 2014). It also has an obligation to take a Complaint's allegations as true, at the screening stage. See supra n. 2. Abiding by those obligation, if not stretching them to their breaking point, the Court will construe Jordan's allegation that “Montano said that[ ] the reason I was being detained was because I didn't pull over[ ] when he tried to stop me from speeding, ” doc. 1 at 5 (emphasis added), to allege that the asserted reasons for his arrest were false. Further, the Court will construe his allegation that he was arrested after a traffic stop to imply that he was not arrested pursuant to a warrant. Id. Given that (very) liberal construction, the Court concludes that Jordan has adequately alleged a false arrest claim against Officer Montano.

         The false imprisonment claim against Sheriff Wilcher, however, fails no matter how liberally the Court construes Jordan's allegations. In addition to the substantive elements, § 1983 claims require an allegation of a causal connection between a defendant's acts or omissions and the alleged constitutional deprivation. See Zalter v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986). Such claims cannot be based upon theories of respondeat superior or vicarious liability. See Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981); Monell v. Dep't of Soc. Servs. of New York, 436 U.S. 658, 691 (1978); Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990). Jordan's Complaint does not include any allegation connecting Sheriff Wilcher to his allegedly tortious arrest and confinement. The closest he comes is his completely conclusory allegation that Wilcher, “in collusion with Judge . . . Freesemann[, and] for their own personal interests” detained him. Doc. 1 at 5. That's not enough to state a claim. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to state a claim upon which relief can be granted). The false imprisonment claim against Sheriff Wilcher should therefore be DISMISSED.

         In a case of continuing detention (as here), “false imprisonment ends once the victim becomes held pursuant to [legal] process - when, for example, he is bound over by a magistrate or arraigned on charges.” Wallace, 549 U.S. at 389-90; see State v. Jordan, Jr., CR17-7260 (felony arraignment held October 9, 2017, and bound to superior court on December 27, 2017). Once an arrestee's unlawful detention becomes a product of legal process, his continued custody may still be unlawful, but any damages suffered after that point must be recovered under the “entirely distinct” tort of malicious prosecution, “which remedies detention accompanied not by the absence of legal process, but by wrongful institution of legal process.” Id. at 390. In other words, the torts of malicious prosecution and false imprisonment are distinct, and the former supplants the latter after legal process is initiated.

         The Eleventh Circuit “has identified malicious prosecution as a violation of the Fourth Amendment and a viable constitutional tort cognizable under § 1983.” Wood v. Kesler, 323 F.3d 872, 881 (11th Cir. 2003). But an essential element of a malicious prosecution claim is the termination of the criminal prosecution in the plaintiff's favor. Id. at 882. And there is no allegation that the Chatham County criminal case has been resolved in Jordan's favor. See doc. 1; see State v. Jordan, Jr., CR18-0035 (Chatham Super. Ct.) (felony evading arrest case “open” as of January 14, 2019, with plea hearing set for March 25, 2019). Accordingly, he does not state a claim for malicious prosecution and any such claim against any of the named defendants should be DISMISSED.[3]

         Moreover, Jordan has sued a panoply of individuals and entities not subject to § 1983 liability under any theory. Judges, like Judge Freeseman, are absolutely immune from civil liability for acts taken pursuant to their judicial authority, see, e.g., Forrester v. White, 484 U.S. 219, 227-29 (1988), even when the judicial acts are done maliciously or corruptly. Stump v. Sparkman, 435 U.S. 349, 356 (1978); Harris v. Deveaux, 780 F.2d 911, 914 (11th Cir. 1986). The State of Georgia and its agencies, including the Superior Court and Highway Patrol, are indisputably immune from suit as well. Polite v. Dougherty County School Sys., 314 Fed.Appx. 180, 184 (11th Cir. 2008) (“Sovereign immunity extends to the state and all of its departments and agencies and can be waived only by a legislative act specifically delineating the waiver.” (citing Ga. Const. Art. I, § 2, ¶ IX(e)).”); Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992) (sheriff and police departments not usually considered legal entities subject to suit); Bennett v. Georgia Dept. of Public Safety, 2010 WL 11595156 at * 2 (N.D.Ga. Feb. 16, 2010) (“Eleventh Amendment immunity clearly applies to plaintiff's . . . § 1983 claims against the Georgia State Patrol”). Accordingly, all claims against Judge Freeseman, the Georgia State Patrol, the State of Georgia Superior Court, and the State of Georgia should be DISMISSED.

         Having disposed of the defective claims, only the false arrest claim against Officer Montano remains. Jordan states that Montano is sued in his “private and official capacity.” Doc. 4 at 2. An official capacity claim is barred, however, because such suits are “not a suit against the official but rather . . . against the official's office” and the “offices” are not “persons” within the meaning of § 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). Accordingly, the false arrest claim against Officer Montano, in his official capacity, should be DISMISSED.

         That leaves the false arrest claim against Officer Montano in his “private, ” or individual, capacity. However, that claim too must be reined in. Jordan's Complaint states that he seeks “the maximum monetary compensation for false imprisonment, and mental anguish that these parties have injected upon my livelihood.” Doc. 1 at 6. The Prison Litigation Reform Act (PLRA), however, provides that “[n]o Federal civil action may be brought by a prisoner . . . for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act.” 42 U.S.C. § 1997e(e). The Eleventh Circuit has construed that provision to include “lawsuits that claim injuries suffered during custodial episodes, ” as defined in the Miranda context. See Napier v. Preslicka, 314 F.3d 528, 532-33 (11th Cir. 2002); see also Napier v. Preslicka, 331 F.3d 1189, 1195-96 (11th Cir. 2003) (Barkett, J. dissenting from denial of rehearing en banc) (noting that panel's interpretation of the statute would preclude prisoners “from seeking recovery for mental injury stemming from humiliating, torturous, or otherwise illegal pre-detention searches and interrogations, as well as from, inter alia, false imprisonment, . . ., malicious prosecution, . . ., and many similar claims.”). Since Jordan alleges no physical injury from his false arrest, and he is precluded from seeking damages for “mental anguish” while incarcerated, he has a viable claim for nominal damages only.[4] See, e.g. Jackson v. Hill, 569 Fed.Appx. 697, 699 (11th Cir. 2014) (concluding that district court erred in failing to consider whether prisoner, subject to PLRA, was entitled to nominal damages for constitutional violation unaccompanied by allegation of physical injury).

         In summary, Jordan's claims against defendants Penny Haass Freeseman, John Wilcher, the Georgia State Patrol, the State of Georgia Superior Court, and the State of Georgia should be DISMISSED. His claims against Officer Zach Montano should be DISMISSED in part.

         To the extent that his Complaint alleges that Montano arrested him without probable cause, and implicitly seeks nominal damages, it requires a response from Montano. Since the Court has authorized Jordan to pursue this case IFP, he is entitled to have the United States Marshal serve his Complaint upon Defendant Montano. See 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process” in cases proceeding IFP); Fed.R.Civ.P. 4(c)(3) (stating that “[t]he court must . . . order” that “service be made by a United States marshal or deputy marshal . . . if the plaintiff is authorized to proceed in forma pauperis”). Accordingly, the Clerk is DIRECTED to forward a copy of this Order and Report and Recommendation, along with plaintiff's Complaint and Amended Complaint, to the Marshal for service upon Officer “Zach Montano.” Jordan's Amended Complaint alleges that Officer Montano is stationed at “Post 42.”[5] Doc. 4 at 1.

         Although the Court sees no apparent basis upon which the deficient claims could be amended, Jordan's opportunity to object to this Report and Recommendation within 14 days affords him an opportunity to resuscitate them. He may submit a Second Amended Complaint during that period if he believes it would cure the legal defects discussed above. See Willis v. Darden, 2012 WL 170163, at * 2 n.3 (S.D. Ga. Jan. 19, 2012) (citing Smith v. Stanley, 2011 WL 1114503, at * 1 (W.D. Mich. Jan. 19, 2011)). To state a claim, ...


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