United States District Court, M.D. Georgia, Macon Division
ORDER GRANTING MOTIONS TO DISMISS
E. SELF, III, JUDGE.
plaintiffs filed virtually identical complaints following an
incident involving the June 13, 2017, murder of two Georgia
Department of Corrections officers, Sgt. Christopher Monica
and Sgt. Curtis Billue. [Doc. 5 at ¶¶ 3, 6, 47].
Plaintiff JD Powell, Jr., an individual
formerly in the custody of the Georgia Department
of Corrections, filed the fourth of those nine cases, and it
is now before the Court on Defendants' Motions to Dismiss
[Docs. 22, 23]. The Georgia Department of Corrections
(“GDC”) filed the first dismissal motion, and the
individual GDC employees Plaintiff named in his Amended
Complaint, [Doc. 5], filed the second. As explained below,
the Court GRANTS both Motions.
facts of this case are simple. Plaintiff was one of many GDC
inmates allegedly injured on a prison transport bus when Sgt.
Monica and Sgt. Billue were overpowered and shot with their
own weapons by inmates Donnie Rowe and Ricky Dubose. [Doc. 5
at ¶¶ 2, 6-7]. Rowe and Dubose subsequently fled
the scene and escaped before being apprehended in Tennessee.
[Id. at ¶¶ 7, 34, 47, 49]. Plaintiff
states that he sustained physical injuries to his back, arms,
and legs during his removal from the prison bus through its
rear emergency window. [Id. at ¶ 6]. As a
result of witnessing the shootings and his subsequent 54-day
placement in administrative segregation while the shootings
were being investigated, Plaintiff alleges that he
“suffered Post Traumatic Stress Syndrome and other
psychiatric maladies yet to be identified.”
[Id. at ¶¶ 4, 6-7].
speaking, Plaintiff casts his factual allegations as
violations of the Eighth Amendment of the United States
Constitution, Georgia law, and GDC rules and regulations.
[Doc. 5 at ¶ 45]. However, after a broad reading of
Plaintiff's Amended Complaint, Defendants refined
Plaintiff's claims as state-law tort claims and claims
under 42 U.S.C. § 1983, and Plaintiff never contends
otherwise. [Doc. 22-1 at p. 2]; [Doc. 23-1 at p. 2]. Based on
his purported injuries, Plaintiff seeks at least $250, 000 in
damages for negligence, deliberate indifference, and
Defendants' alleged failure to follow GDC rules and
regulations. [Doc. 5 at ¶ 45]; see also
[id. at p. 30].
Standard of Review
seek dismissal of Plaintiff's claims pursuant to Federal
Rules of Civil Procedure 12(b)(1) and (6). With regard to
Rule 12(b)(1) jurisdictional motions, attacks on
subject-matter jurisdiction come in two forms,
“facial” and “factual” attacks.
Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th
Cir. 1990). Facial attacks challenge subject-matter
jurisdiction based on the allegations in a complaint.
Id. at 1529. District courts take those allegations
as true in deciding whether to grant motions based on a lack
of subject-matter jurisdiction. Id. Factual attacks
challenge subject-matter jurisdiction in fact, irrespective
of the pleadings. Id. In resolving a factual attack,
courts may consider extrinsic evidence such as testimony and
affidavits. Id. Defendants' Motions under Rule
12(b)(1) are based upon a lack of subject-matter
jurisdiction, and Defendants argue that they are entitled to
immunity under the Eleventh Amendment and Georgia law.
deciding a 12(b)(6)-based motion, district courts must accept
the facts set forth in a complaint as true. Bell Atl.
Corp. v. Twombly, 550 U.S. at 555 (2007). A complaint
survives a motion to dismiss only if it alleges sufficient
factual matter (accepted as true) that states a claim for
relief that is plausible on its face. McCullough v.
Finley, 907 F.3d 1324, 1333 (11th Cir. 2018) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009)).
Although Federal Rule of Civil Procedure 8 does not require
detailed factual allegations, it does require “more
than [ ] unadorned, the-defendant-unlawfully-harmed-me
accusation[s].” McCullough, 907 F.3d at 1333
(citation omitted). To decide whether a complaint survives a
motion to dismiss, district courts are instructed to use a
two-step framework. Id. The first step is to
identify the allegations that are “no more than mere
conclusions.” Id. (quoting Iqbal, 556
U.S. at 679). “Conclusory allegations are not entitled
to the assumption of truth.” Id. (citation
omitted). After disregarding the conclusory allegations, the
second step is to “assume any remaining factual
allegations are true and determine whether those factual
allegations ‘plausibly give rise to an entitlement to
relief.'” Id. (quoting Iqbal, 556
U.S. at 679).
plaintiff must plead more than labels and conclusions or a
formulaic recitation of the elements of a cause of
action.” McCullough, 907 F.3d at 1333
(internal quotations omitted); see also Twombly, 550
U.S. at 555. “To be sure, a plaintiff may use legal
conclusions to structure his complaint, but legal conclusions
‘must be supported by factual allegations.'”
McCullough, 907 F.3d at 1333 (quoting
Iqbal, 556 U.S. at 679). While courts, in ruling on
a motion to dismiss, must take all of the factual allegations
in the complaint as true; they are not bound to accept a
legal conclusion couched as a factual allegation.
Iqbal, 556 U.S. at 678. Courts must “identify
conclusory allegations and then discard them-not ‘on
the ground that they are unrealistic or nonsensical' but
because their conclusory nature ‘disentitles them to
the presumption of truth.'” McCullough,
907 F.3d at 1333 (quoting Iqbal, 556 U.S. at 681).
the issue to be decided when considering a motion to dismiss
is not whether the claimant will ultimately prevail, but
“whether the claimant is entitled to offer evidence to
support the claims.” Scheuer v. Rhodes, 416
U.S. 232, 236 (1974), overruled on other grounds by Davis
v. Scheuer, 468 U.S. 183 (1984). A complaint tendering
“‘naked assertion[s]' devoid of
‘further factual enhancement'” will not
survive against a motion to dismiss; it must allege enough
facts “to raise a reasonable expectation that discovery
will reveal evidence” supporting a claim.
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 557) (alteration in original); see also
Twombly, 550 U.S. at 556. Finally, “if [a]
complaint contains a claim that is facially subject to an
affirmative defense, that claim may be dismissed under Rule
12(b)(6). LeFrere v. Quezada, 582 F.3d 1260, 1263
(11th Cir. 2009). In applying the foregoing standard, and
taking the facts asserted in Plaintiff's Amended
Complaint as true, the Court rules on Defendants' Motions
GDC's Motion to Dismiss
previously stated, Defendant GDC sets forth two main bases
for dismissal: (1) that it is immune from suit in this Court
under both the United States and Georgia Constitutions, and
(2) that Plaintiff's state-law claims are further barred
by the Georgia Tort Claims Act (“GTCA”). [Doc.
22-1 at pp. 4-13]. Given that GDC is undeniably immune from
suit on Plaintiff's claims, the Court need not discuss
GDC's procedural-related arguments under the GTCA.
than address GDC's specific arguments related to its
immunity, Plaintiff argued that he should be permitted to
take 90-150 days for discovery, the results of which, he
asserts, would enable him “to substantiate his claims,
” to determine “the real party of interest,
” and “to properly present his position [in]
response to [Defendants'] Motion to Dismiss.” [Doc.
28 at pp. 4-5]. Plaintiff's argument that GDC “has
offered no evidence as to the real party of interest, ”
appears to reference the Eleventh Amendment's bar to
suits where the state is “the real party in interest or
when any monetary recovery would be paid from state
funds.” [Doc. 30 at p. 2 (quoting Kentucky v.
Graham, 473 U.S. 159, 169 (1985))]; [Doc. 28 at p. 5].
Interpreted broadly, Plaintiff's argument is perhaps an
assertion that discovery would determine whether the State of
Georgia is the real party in interest regarding suits against
as GDC correctly states, that question is “well-settled
in this circuit.” [Doc. 30 at p. 2]. In Stevens v.
Gay, the Eleventh Circuit Court of Appeals unequivocally
determined that Section 1983 claims cannot proceed against
GDC. 864 F.2d 113, 115 (11th Cir. 1989) (finding in a Section
1983 lawsuit that “[t]he Eleventh Amendment bars this
action against the Georgia Department of Corrections”).
Accordingly, Plaintiff's Section 1983 claims against GDC
state-law claims against GDC are also barred by state
sovereign immunity. The State of Georgia has waived sovereign
immunity for certain claims against it but not for assault
and battery. O.C.G.A § 50-21-24(7) (“The state
shall have no liability for losses resulting from assault
[or] battery . . . .”). Thus, to the extent Plaintiff
asserts assault and battery claims, they are barred by state
sovereign immunity. Furthermore, even if Plaintiff attempted
to assert a negligence claim arising from injuries he
received as a result of some assault or battery, state
sovereign immunity also bars such a claim. The Georgia courts
have explained that where “a plaintiff's injury was
caused by an assault and battery committed by a third party,
the state is immune from suit even if the assault and battery
was facilitated by or resulted from the prior negligent
performance of a state officer or employee.” Pelham
v. Bd. of Regents of Univ. Sys. of Ga., 743 S.E.2d 469,