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Temple v. McIntosh County

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

January 22, 2019

McINTOSH COUNTY, GEORGIA, SHERIFF STEPHAN JESSUP, individually and in his official capacity, SERGEANT ROBERT COX, individually and in his official capacity, McINTOSH COUNTY SHERIFF'S OFFICE, JOHN DOES, AND CORPORAL DILLION HOWARD, individually and in his official capacity. Defendants.



         Before the Court is Defendants McIntosh County, Georgia, Sheriff Stephen Jessup, [1] individually and in his official capacity, Sergeant Robert Cox, individually and in his official capacity, Corporal Dillon Howard, [2] 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.[3]For the reasons set forth below, Defendants' Motion is GRANTED.


         This 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. ¶ 14.

         Then, 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.

         Plaintiff 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[4] (Counts 4-8). Plaintiff also claims that Defendants were deliberately indifferent to Plaintiff's rights under the Fourteenth Amendment (Count 9).[5] 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.[6]


         Federal 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).

         "A 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)).


         I. Failure to Respond

         As an 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 Defendants' Motion.

         "Because 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.

         II. Claims Against McIntosh County Sheriff s Office

         Turning 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 DISMISSED.

         III. Federal Law Claims Under § 1983

         A. Claims Against McIntosh County, Georgia: Municipal Liability

         Plaintiff 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.[7] 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.

         First, 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. ...

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