United States District Court, S.D. Georgia, Augusta Division
BRO T. HESED-EL, Plaintiff,
COURTNEY MCCORD, in Her Individual and Official Capacities; VERA L. BUTLER, ir Her Individual and Official Capacities; and City of Augusta-Richmond County, Defendants.
RANDAL HALL, CHIEF JUDGE
matter is before the Court on several motions. The Court
addresses each pending motion herein.
is a serial filer in this Court. See Georgia v.
Hesed-El, CV 118-037, 2018 WL 1404893, at *2 (S.D. Ga.
Mar. 8, 2018). After filing an initial complaint seemingly
relating to a property dispute (Compl., Doc. 1), Plaintiff,
proceeding pro se, amended his complaint. (First Am.
Compl., Doc. 12.) The first amended complaint serves as the
foundation for the present action.(Id.) On June 26,
2018, Plaintiff filed a motion for partial summary judgment.
(Doc. 55.) Plaintiff later sought to withdraw that motion
(Doc. 60) and requested leave to file a second amended
complaint. (Doc. 61.) With the Court's permission (August
20, 2018 Order, at 5-6), Plaintiff filed his second amended
complaint, the current operative pleading. (Docs. 84, 84-1.)
As the Court reads it, Plaintiff's second amended
complaint asserts four claims against Defendants: (1) a claim
under 42 U.S.C. § 1983 for violation of due process
rights; (2) false arrest or malicious prosecution; (3)
negligent supervision or retention; and (4) a claim involving
Defendants' failure to serve Plaintiff notice. (Second
Am. Compl. Attach., Doc. 84-1, ¶¶ 37-61.)
root of Plaintiff's claims is his alleged unlawful
arrest. (Id. ¶ 25.) Plaintiff asserts that his
arrest occurred without probable cause (id.
¶¶ 23, 39, 49) and attributes the unlawful arrest
to Defendant McCord, deputy clerk with the Civil Court of
Richmond County (Arrest Warrant, Doc. 33-5),  making the
probable cause determination and issuing the warrant. (Second
Am. Compl. Attach., ¶¶ 22, 49.) Plaintiff
additionally contends that Defendant Butler, also an employee
of Augusta-Richmond County (Id. ¶ 4), forged
the acting judge's order finding probable cause to issue
the arrest warrant. (Id. ¶ 24.)
moved to dismiss Plaintiff's second amended complaint.
(Defs.' Mot. to Dismiss, Doc. 88.) While Defendants'
motion to dismiss was pending, Plaintiff filed a motion for
leave to file his third amended complaint. (Mot. for Leave to
File Third Am. Compl., Doc. 91.) The third amended complaint
seeks to add a host of new defendants and claims. (Proposed
Third Am. Compl., Doc. 91-1.) Plaintiff also moved for leave
to file a supplemental pleading claiming bad faith refusal to
settle. (Doc. 100.) Before addressing
Defendants' motion to dismiss and Plaintiff's motion
for leave to file his third amended complaint, the Court
resolves several of Plaintiff's motions.
PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT
requests to withdraw his motion for partial summary judgment.
(Doc. 60.) No. party has opposed Plaintiff's motion to
withdraw. (See Resp. to Mot. to Withdraw, Doc. 62.)
Accordingly, the Court permits Plaintiff to withdraw his
motion for partial summary judgment. The withdrawal moots any
motions related to Plaintiff's motion for partial summary
judgment. (Docs. 54, 58.)
PLAINTIFF'S MOTION TO STRIKE
filed a motion to strike Defendant McCord's opposition to
Plaintiff's motion for partial summary judgment,
Defendant McCord's opposition to Plaintiff's motion
for leave to file his second amended complaint and supporting
affidavit, and Defendant McCord's reply in support of her
motion to set aside the entry of default and to dismiss.
(Doc. 73.) As set forth in section II, supra,
Plaintiff's motion for partial summary judgment is
withdrawn. The remaining filings that Plaintiff requests the
Court strike also relate to motions previously resolved.
Therefore, Plaintiff's motion to strike is moot.
PLAINTIFF'S MOTION TO LIFT STAY
Order dated March 6, 2018 (Doc. 38), United States Magistrate
Judge Brian K. Epps stayed discovery pending resolution of
Defendant McCord's motion to dismiss (Doc. 32). Plaintiff
asks the Court to lift the discovery stay. (Mot. to Lift
Stay, Doc. 71.) Pursuant to the Court's August 20, 2018
Order, Plaintiff's motion for leave to amend complaint
was granted, and Defendant McCord's motion to dismiss was
denied as moot. (August 20, 2018 Order, at 6.) Because the
original motion to stay remained in force until the Court
resolved Defendant McCord's original motion to dismiss,
the denial of Defendant McCord's motion to dismiss lifted
the initial stay. As such, Plaintiff's motion to lift the
stay is moot.
DEFENDANTS' MOTION TO DISMISS
considering a motion to dismiss under Rule 12(b)(6), the
Court tests the legal sufficiency of the complaint.
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974),
overruled on other grounds by Davis v. Scherer, 468
U.S. 183 (1984). Under Federal Rule of Civil Procedure
8(a)(2), a complaint must contain a "short and plain
statement of the claim showing that the pleader is entitled
to relief" to give the defendant fair notice of both the
claim and the supporting grounds. Bell Atl. Corp. v.
Twombly, 550 U.S. 554, 555 (2007). Although
"detailed factual allegations" are not required,
Rule 8 "demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 555).
survive a motion to dismiss, a complaint must contain
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
plaintiff must plead "factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct." Id. "The
plausibility standard is not akin to a 'probability
requirement,' but it asks for more than a sheer
possibility that a defendant has acted unlawfully."
Id. A plaintiff's pleading obligation
"requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do." Twombly, 550 U.S. at 555.
"Nor does a complaint suffice if it tenders
'naked assertions' devoid of 'further
factual enhancement.'" Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 557). Furthermore,
"the court may dismiss a complaint pursuant to Rule
12(b)(6) when, on the basis of a dispositive issue of law, no
construction of the factual allegations will support the
cause of action." Marshall Cty. Bd. of Educ. v.
Marshall Cty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir.
pro se plaintiffs, "a pro se
complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by
lawyers." Erickson v. Pardus, 551 U.S. 89, 94
(2007). "Even though a pro se complaint should
be construed liberally, [it] still must state a claim upon
which the Court can grant relief." Wilson v.
Vanalstine, No. 1:17-cv-615-WSD, 2017 WL 4349558, at *2
(N.D.Ga. Oct. 2, 2017) (quoting Grigsby v. Thomas,
506 F.Supp.2d 26, 28 (D.D.C. 2007)). Pro se
litigants are required to comply with procedural rules, and
"the court is not required to rewrite deficient
pleadings." Jacox v. Dep't of Def., 291
Fed.Appx. 318, 318 (11th Cir. 2008) (citing GJR
Invs., Inc. v. Cty. of Escambia, 132 F.3d 1359, 1369
(11th Cir. 1998) (overruled on other grounds)).
Count I - Section 1983 & Count II - False Arrest or
branded as a cause of action for violation of due process,
for the reasons below, the Court interprets Plaintiff's
first claim as a section 1983 claim for malicious prosecution
or false arrest. The Court treats Plaintiff's second
claim as a state law cause of action for malicious
prosecution or false arrest. To prove a federal and
Georgia claim for malicious prosecution, Plaintiff must show:
"(1) a criminal prosecution instituted or continued by
the present defendant; (2) with malice and without probable
cause; (3) that terminated in the plaintiff accused's
favor; and (4) caused damage to the plaintiff accused."
Kjellsen v. Mills, 517 F.3d 1232, 1237
(11th Cir. 2008). "A warrantless arrest without probable
cause violates the Constitution and provides a basis for a
section 1983 claim" for false arrest. Kinqsland v.
City of Miami, 382 F.3d 1220, 1226 (11th Cir. 2004).
Under Georgia law, "[a]n aggrieved plaintiff must prove
three elements in a false arrest claim: an arrest under the
process of law, without probable cause[, ] and made
maliciously." Simmons v. Mableton Fin. Co., 562
S.E.2d 794, 797 (Ga.Ct.App. 2002).
stated under federal and Georgia law, both malicious
prosecution and false arrest include probable cause as a
material element. Although a plaintiff is not required to
"allege a specific fact to cover every element or allege
with precision each element of a claim, it is still necessary
that a complaint contain either direct or inferential
allegations respecting all the material elements necessary to
sustain a recovery under some viable legal theory."
Frazile v. EMC Mortg. Corp., 382 Fed.Appx. 833, 836
(11th Cir. 2010) (quoting Roe v. Aware Woman Ctr. for
Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001)).
Plaintiff has not alleged facts to sustain a recovery under
another legal theory. Therefore, as a material element of
malicious prosecution and false arrest, Plaintiff must
allege, at a minimum, non-conclusory allegations allowing the
Court to infer the absence of probable cause. See Martin
v. Wood, 648 Fed.Appx. 911, 916 (11th Cir. 2016)
(affirming dismissal for failure to state claims for false
arrest and malicious prosecution when plaintiff "failed
to allege facts demonstrating that any officer . . . acted
without probable cause''); Walker v. Dean,
No. 1:15-CV-3602-WSD, 2016 WL 3227501, at *4 (N.D.Ga. June
13, 2016) (dismissing false arrest claim, in part, because
"[p]laintiff's [c]omplaint contain[ed] only the bare
assertion that the warrant for his arrest 'was issued
without probable cause'"); Taylor v. United
States, No. CV 314-006, 2014 WL 11468757, at *4 (S.D.
Ga. June 18, 2014) (dismissing state law malicious
prosecution claim upon plaintiff's failure to allege
facts sufficient to show lack of probable cause). Without
factual allegations demonstrating the absence of probable
cause for Plaintiff's arrest, Plaintiff fails to state a
plausible claim for malicious prosecution or false arrest.
Iqbal, 556 U.S. at 678.
Plaintiff fails to offer more than the legal conclusion that
his arrest occurred without probable cause. (See
Second Am. Compl. Attach., ¶¶ 39 ("Defendants
deprived Plaintiff of his liberty without due process of law
by unlawfully seizing his body and arresting his person
without any probable cause or legal authorization."), 49
("Because Plaintiff was maliciously arrested without
probable cause and without the prerequisite legal procedure,
Defendant McCord is liable for signing the warrant for his
arrest.").) Threadbare conclusions, such as those
Plaintiff offers, are insufficient to establish
Plaintiff's pleading requirement under Federal Rule of
Civil Procedure 8. See Davila v. Delta Air Lines,
Inc., 326 F.3d 1183, 1185 (11th Cir. 2003)
("[C]onclusory allegations, unwarranted factual
deductions or legal conclusions masquerading as facts will
not prevent dismissal.''). As pleaded,
Plaintiff's malicious prosecution and false arrest counts
fail to state a claim upon which relief may be granted
against all Defendants.
not satisfying his obligation to allege facts sufficient to
show the absence of probable cause, Plaintiff further asserts
that Defendant McCord's lack of authority to conduct and
issue warrants violated Plaintiff's rights pursuant to
the Constitution's Fourth, Fifth, and Fourteenth
Amendments. Pursuant to 42 U.S.C. § 1983, "Every
person who, under color of any statute . . . subjects, or
causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the
deprivation of any rights . . . secured by the Constitution
and laws, shall be liable to the party injured . . . ."
The statute confers no substantive rights on its own.
Instead, it permits "a method for vindicating federal
rights elsewhere conferred." Graham v. Connor,
490 U.S. 386, 393-94 (1989)(citation omitted). In a section
1983 suit, a court must:
"[I]solate the precise constitutional violation with
which [the] defendant is charged." Baker v.
McCollan, 443 U.S. 137');">443 U.S. 137 [, 140] . . . (1979). If an
Amendment provides an explicit textual source of
constitutional protection against the sort of conduct
complained of, that Amendment - not the more generalized
notion of substantive due process under the Fourteenth
Amendment - is the guide for analyzing the claim. See
Graham v. Connor, 490 U.S. 386[, 393-94] . . . (1989)
.... For example, in Albright v.Oliver,
510 U.S. 266 . . . (1994), the Supreme Court refused to
recognize a substantive due process right under the
Fourteenth Amendment to be ...