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Hesed-El v. McCord

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

March 31, 2019

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.



         This matter is before the Court on several motions. The Court addresses each pending motion herein.

         I. BACKGROUND

         Plaintiff 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.[1](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.)

         The 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), [2] 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.)

         Defendants 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.[3] (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 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 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.


         By 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.[4]


         A. Standard

         In 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, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).

         "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, [5] 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. 1993) .

         As for 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)).

         B. Discussion

         1. Count I - Section 1983 & Count II - False Arrest or Malicious Prosecution

         Although 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.[6] 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).

         As 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.

         Here, 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.

         Despite 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 ...

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