United States District Court, S.D. Georgia, Brunswick Division
GODBBY WOOD, JUDGE UNITED STATES DISTRICT COURT
the Court is Defendants McIntosh County, Georgia, Sheriff
Stephen Jessup,  individually and in his official capacity,
Sergeant Robert Cox, individually and in his official
capacity, Corporal Dillon Howard,  individually and in his
official capacity, and McIntosh County Sheriff's
Office's Motion to Dismiss. Dkt. No. 4. The Motion has
been fully briefed and is ripe for review.For the reasons
set forth below, Defendants' Motion is
case involves Plaintiff s claims against various law
enforcement officers and entities for alleged actions taken
against Plaintiff during an arrest. The facts stated herein
are taken solely from Plaintiff's Complaint and are
assumed to be true pursuant to Rule 12(b)(6). As stated in
Plaintiff's Complaint, Plaintiff alleges that on or
around July 21, 2016, he was standing in his father's
yard talking to his father. Dkt. No. 1 ¶ 12. Law
enforcement personnel from the McIntosh County Sheriff s
Office arrived and ordered Plaintiff to get on the ground.
Id. ¶ 13. Plaintiff left the immediate location
on foot and was arrested by Defendant Cox. Id.
while Cox had Plaintiff on the ground secured in handcuffs,
Defendant Howard and his K9 partner, Axel, charged toward
Plaintiff. Id. ¶ 16. Howard shouted loudly to
Cox, "Bobby watch out" and Cox intentionally
positioned his body away from Plaintiff. Id.
¶¶ 17-18. K9 Axel bit and clamped down on
Plaintiffs leg and thrashed violently back and forth
resulting in Plaintiff experiencing excruciating pain and
causing his left leg to bleed. Id. ¶¶
21-22, 30-31. Neither Howard nor Cox gave K9 Axel a command
to release his bite, and Cox did not intervene to pry K9 Axel
off of Plaintiff's leg. IcL ¶¶ 24-26. While K9
Axel was clamped down on his leg, Plaintiff heard someone
yell "[n]e's in handcuffs." Id. ¶
28. Howard eventually grabbed K9 Axel by the collar causing
the dog to release his bite. Id. ¶ 27. Cox
called for an ambulance, but at no point did any of the law
enforcement personnel present render first aid to Plaintiff.
Id. ¶¶ 32-33. As a result of the dog bite,
Plaintiff suffered severe and serious permanent injuries and
mental anguish. Id. ¶ 34.
filed federal claims against Defendants for violations of the
Fourth, Fifth, and Fourteenth Amendments under 42 U.S.C.
§ 1983 (Counts 1 and 2) and for municipal liability
under 42 U.S.C. § 1983 (Count 3), and he filed state law
claims of negligence, assault, battery, intentional
infliction of emotional distress, and respondeat
superior (Counts 4-8). Plaintiff also claims that
Defendants were deliberately indifferent to Plaintiff's
rights under the Fourteenth Amendment (Count
In response, Defendants filed a Motion to Dismiss on August
22, 2018, arguing that Plaintiff's Complaint fails to
state a claim upon which relief can be granted under Federal
Rule of Civil Procedure 12(b)(6). Plaintiff has not responded
to Defendants' Motion.
Rule of Civil Procedure 8(a) requires that a plaintiff's
complaint contain "a short and plain statement of the
claim showing that the pleader is entitled to relief."
Fed.R.Civ.P. 8(a). When ruling on a motion to dismiss brought
pursuant to Rule 12(b)(6), a district court must accept as
true the facts set forth in the complaint and draw all
reasonable inferences in the plaintiff's favor.
Randall v. Scott, 610 F.3d 701, 705 (11th Cir.
2010). Although a complaint need not contain detailed factual
allegations, it must contain "enough facts to state a
claim to relief that is plausible on its face." Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The Court accepts the allegations in the complaint as
true and draws all reasonable inferences in favor of the
plaintiff. Ray v. Spirit Airlines, Inc., 836 F.3d
1340, 1347 (11th Cir. 2016). However, the Court does not
accept as true threadbare recitations of the elements of .the
claim and disregards legal conclusions unsupported by factual
allegations. Iqbal, 556 U.S. at 678-79. At a
minimum, a complaint should "contain either direct or
inferential allegations respecting all the material elements
necessary to sustain a recovery under some viable legal
theory." Fin. Sec. Assurance, Inc. v. Stephens,
Inc., 500 F.3d 1276, 1282-83 (11th Cir. 2007) (per
curiam) (quoting Roe v. Aware Woman Ctr. for Choice,
Inc., 253 F.3d 678, 683 (11th Cir. 2001)).
Failure to Respond
initial matter, the Court will first address Plaintiff's
failure to respond to Defendants' Motion to Dismiss.
Local Rule 7.5 states that "[u]nless these rules or the
assigned Judge prescribes otherwise, each party opposing a
motion shall serve and file a response within fourteen (14)
days of service of the motion. . . . Failure to respond
within the applicable time period shall indicate that there
is no opposition to [the] motion." Defendants filed
their Motion to Dismiss on August 22, 2018, and Plaintiff was
served in accordance with directives from the Court Notice of
Electronic Filing. Dkt. No. 4 at 18. As of the date of this
Order-over four months later-Plaintiff has not responded to
of this failure to respond, the Court considers Plaintiff to
have *no opposition' to the motion." Se. Bus.
Network, Inc. v. Sec. Life of Denver Ins. Co., No. CV
415-159, 2015 WL 5092624, at *3 (S.D. Ga. Aug. 27, 2015)
(quoting LR 7.5). "However, the Eleventh Circuit has
held that a district court may only dismiss an action for
failure to comply with a local rule when Ml) a party engages
in a clear pattern of delay or willful contempt (contumacious
conduct); and (2) the district court specifically finds that
lesser sanctions would not suffice.'" Id.
(quoting World Thrust Films, Inc. v. Int'l Family
Entm't, Inc., 41 F.3d 1454, 1456 (11th Cir.1995)).
Here, the Court finds no evidence of a "clear pattern of
delay or contempt," and therefore, the Court must review
the merits of Defendants' Motion. Id.
Claims Against McIntosh County Sheriff s
to the merits of Plaintiff's Complaint, Plaintiff lists
McIntosh County Sheriff's Office as a Defendant. However,
"it is well-settled that sheriff's departments
generally are not considered legal entities subject to
suit." Davis v. Pope, No. CV 511-105, 2012 WL
3757653, at *2 (S.D. Ga. Aug. 28, 2012) (citing Lovelace
v. Dekalb Cent. Prob., 144 Fed.Appx. 793, 795 (11th Cir.
2005); Bunyon v. Burke Cnty., 285 F.Supp.2d 1310,
1328 (S.D. Ga. 2003)). "[T]he capacity to be sued is
'determined by the law of the state in which the district
court is held.'" Lawal v. Fowler, 196
Fed.Appx. 765, 768 (11th Cir. 2006) (quoting Fed.R.Civ.P.
17(b)). Georgia "recognizes only three classes as legal
entities, namely: (1) natural persons; (2) an artificial
person (a corporation); and (3) such quasi-artificial persons
as the law recognizes as being capable to sue."
Id. (quoting Georgia Insurers Insolvency Pool v.
Elbert County, 368 S.E.2d 500, 502 (Ga. 1988)). The
Eleventh Circuit and federal district courts in Georgia have
routinely held that under Georgia law, sheriff s offices are
not legal entities capable of being sued. See, e.g.,
Lawal, 196 Fed.Appx. at 768 (affirming magistrate
judge's finding that the Douglas County Sheriff's
Department in Georgia was not capable of being sued);
Lovelace, 144 Fed. App'x. at 795 (agreeing with
the district court's finding that the Dekalb County
Police Department was not a legal entity subject to suit
under § 1983); Davis, 2012 WL 3757653 at *2
(finding Coffee County Sheriff's Office to not be a legal
entity capable of being sued); Harris v. Lawson, No.
7:08-CV-70 (HL), 2008 WL 4003999, at *2 (M.D. Ga. Aug. 27,
2008) ("[T]here is no such provision in the Georgia
Constitution or Code that designates a sheriff's office
as a legal entity."). Accordingly, the McIntosh County
Sheriff's Office is not capable of being sued in this
case. Defendants' Motion with respect to the McIntosh
County Sheriff's Office is GRANTED and
the McIntosh County Sheriff's Office is
Federal Law Claims Under § 1983
Claims Against McIntosh County, Georgia: Municipal
also alleges claims against McIntosh County. Specifically,
under Count 8, Plaintiff alleges that the acts of the other
Defendants can be imputed to McIntosh County under a theory
of respondeat superior. In other words, it appears that
Plaintiff is attempting to hold McIntosh County vicariously
liable for the actions of employees of the sheriff's
office or for violation of some official policy of custom.
to the extent that Plaintiff makes any federal claims against
McIntosh County based on a theory of vicarious liability
under 42 U.S.C. § 1983 (2018), those claims must fail.
"A county's liability under § 1983 may not be
based on the doctrine of respondeat superior." Grech
v. Clayton County, 335 F.3d 1326 at 1329 (11th Cir.
2003) (citing City of Canton v. ...