Opinion
CIVIL ACTION NO. 1:19-CV-0670-CAP
2020-08-28
Malik JOHNSON, Plaintiff, v. Gilbert SHANNON, et al., Defendants.
Zack Greenamyre, Samantha Jill Funt, Mitchell & Shapiro, LLP, Jeffrey Filipovits, Spears & Filipovits, LLC, Atlanta, GA, for Plaintiff. Laura Louise Lones, Attorney General's Office-ATL Department of Law, Atlanta, GA, for Defendants.
Zack Greenamyre, Samantha Jill Funt, Mitchell & Shapiro, LLP, Jeffrey Filipovits, Spears & Filipovits, LLC, Atlanta, GA, for Plaintiff.
Laura Louise Lones, Attorney General's Office-ATL Department of Law, Atlanta, GA, for Defendants.
ORDER
CHARLES A. PANNELL, JR., United States District Judge
This action is before the court on the defendants’ motion for summary judgment [Doc. No. 27].
All facts taken directly from the defendants’ Statement of Undisputed Material Facts ("DSMF") [Doc No. 27-2] or the plaintiff's Statement of Additional Material Facts ("PSMF") [Doc. No. 30-2] remain undisputed. This court must accept as admitted those facts in the moving party's statement that have not been specifically controverted with citation to the relevant portions of the record by the opposing party. LR 56.1B.2 (2), (3), NDGa. Subjective perceptions, conclusory allegations, or allegations that are otherwise unsupported by record evidence do not create genuine issues of material fact in order to withstand summary judgment. See Chapman v. AI Transp. , 229 F.3d 1012, 1051 n.34 (11th Cir. 2000) (en banc); Holifield v. Reno , 115 F.3d 1555, 1564 n.6 (11th Cir. 1997) ; Carter v. City of Miami , 870 F.2d 578, 585 (11th Cir. 1989). Thus, this court will not consider any fact (1) not supported by citation to evidence (including a page or paragraph number); or (2) stated as an issue or legal conclusion.
After pleading guilty to one count of robbery and being adjudicated as a "Youthful Offender" by the State of New York, the plaintiff was sentenced to five years of probation on July 25, 2013. DSMF ¶¶ 1-3; Pl.’s Resp. to Defs.’ Statement of Material Facts ¶¶ 1-2 [Doc. No. 30-1]. On that same date, the plaintiff requested that his probation case be transferred to Georgia through the Interstate Compact Offender Tracking System ("ICOTS"). DSMF ¶ 4.
The plaintiff's first residence in Georgia was at an apartment complex in Gwinnett County. DSMF ¶ 5. He later moved to 1007 Hope Springs Court in Stone Mountain. DSMF ¶ 7. In August 2015, the plaintiff moved again, this time to 1255 To Lani Drive in Stone Mountain. DSMF ¶ 8. At that time, the plaintiff was being supervised by Defendant Shannon. DSMF ¶ 9, Johnson Dep. at 20-21 [Doc. No. 45]. According to the plaintiff, his mother phoned Shannon to provide him the To Lani Drive address and was told by Shannon to text the new address to him. Johnson Dep. at 21 [Doc. No. 45]. The text message containing the address was sent to Shannon. Id. ; Nicole Johnson Dec. ¶ 6 [Doc. No. 30-3].
On two occasions in September 2015, Shannon went to an address other than the To Lani location to make supervisory contact. DSMF ¶ 10; Pl.’s Resp. to Defs.’ Statement of Material Facts ¶ 10. Shannon does not recall the address he visited on these two occasions. DSMF ¶ 12. While Shannon recalls that the address he went to was in the Stone Mountain area, there is nothing in the record to establish that the address Shannon went to was ever associated with the plaintiff. Id. On each visit, Shannon left a notification card on the door asking the plaintiff to contact him. DSMF ¶ 14. On the second visit, he saw the notification card he left on the visit on the ground. DSMF ¶ 15.
After failing to make contact with the plaintiff, Shannon reported the results to his supervisor without first attempting to call the plaintiff's contact number, which he was required to do pursuant to the Interstate Commission for Adult Offender Supervision rules. DSMF ¶ 16; PSMF ¶ 23. Shannon knew that the plaintiff was an ICOTS supervisee and was aware that his report would be forwarded to an ICOTS officer. DSMF ¶ 17. Upon receipt of the information regarding Shannon's failure to contact the plaintiff, ICOTS officer Monique Roscoe prepared an ICOTS Offender Violation Report indicating that the plaintiff's whereabouts were unknown. DSMF ¶¶ 18-19. Roscoe indicated in the report that the plaintiff was obligated to report to the office but failed to do so without an excuse. PSMF ¶ 38. However, the plaintiff was not obligated to report to the probation office; he was seen in the field. PSMF ¶ 35. Roscoe provided additional inaccurate information in the Violation Report: she gave his last known address at Lake Knoll Drive, Lilburn, Georgia. PSMF ¶ 39. It is undisputed that if Roscoe had checked the proper place within the recording system, she would have learned that the plaintiff recently updated his address to the To Lani address. PSMF ¶ 40.
Based on the reports from Shannon and Roscoe, issuance of a warrant for the plaintiff's arrest was mandatory. PSMF ¶ 42. Both Shannon and Roscoe subjectively knew that a warrant for the plaintiff's arrest would be issued. PSMF ¶ 43. Both Shannon and Roscoe subjectively knew that they were not permitted to cause someone to be arrested without legal justification or to fabricate evidence. PSMF ¶ 45.
In December 2015, the New York court issued a warrant for the plaintiff's arrest. DSMF ¶ 20. In April 2017, the plaintiff was arrested by the DeKalb County Police and taken to the DeKalb County Jail. DSMF ¶ 21. In May 2017, the plaintiff was extradited to New York. DSMF ¶ 22. At a hearing in New York on June 8, 2017, the plaintiff was found not to have violated probation, and his probation was terminated early. PSMF ¶ 50; DSMF ¶ 23.
In his amended complaint, the plaintiff asserted claims against Shannon and Roscoe pursuant to 42 U.S.C. § 1983 alleging that the defendants’ conduct violated his Fourth, Eighth, and Fourteenth Amendment rights. Am. Compl. at 2 [Doc. No. 6]. He seeks, nominal, compensatory, special, and punitive damages.
II. Summary Judgment Standard
Rule 56(a) of the Federal Rules of Civil Procedure authorizes summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The party seeking summary judgment bears the burden of demonstrating that no dispute as to any material fact exists. Adickes v. S.H. Kress & Co. , 398 U.S. 144, 156, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) ; Johnson v. Clifton , 74 F.3d 1087, 1090 (11th Cir. 1996). The moving party's burden is discharged merely by " ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support [an essential element of] the nonmoving party's case." Celotex Corp. v. Catrett , 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
In determining whether the moving party has met this burden, the district court must view the evidence and all factual inferences in the light most favorable to the party opposing the motion. Johnson , 74 F.3d at 1090. Once the moving party has adequately supported its motion, the nonmovant then has the burden of showing that summary judgment is improper by coming forward with specific facts showing a genuine dispute. Matsushita Electrical Industrial Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
In deciding a motion for summary judgment, it is not the court's function to decide issues of material fact but to decide only whether there is such an issue to be tried. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The applicable substantive law will identify those facts that are material. Id. at 247, 106 S.Ct. 2505. Facts that in good faith are disputed, but which do not resolve or affect the outcome of the case, will not preclude the entry of summary judgment as those facts are not material. Id. Genuine disputes are those by which the evidence is such that a reasonable jury could return a verdict for the nonmovant. Id. "Genuine" factual issues must have a real basis in the record. See Matsushita , 475 U.S. at 586, 106 S.Ct. 1348. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ " Id. at 587, 106 S.Ct. 1348 (citations omitted).
III. Analysis
A. Fourth Amendment
While not clear from the amended complaint, the plaintiff's response to the motion for summary judgment explains that the nature of his Fourth Amendment claim is malicious prosecution. Pl.’s Resp. to M. for Summ. J. at 9-10 [Doc. No. 30]. Accordingly, the court will analyze the plaintiff's Fourth Amendment claim in that context only.
To establish a federal malicious prosecution claim under § 1983, a plaintiff must prove (1) the elements of the common law tort of malicious prosecution and (2) a violation of his Fourth Amendment right to be free from unreasonable seizures. Wood v. Kesler , 323 F.3d 872, 881 (11th Cir. 2003). The Eleventh Circuit has held that for purposes of a § 1983 malicious prosecution claim, the constituent elements of the common law tort of malicious prosecution include: (1) a criminal prosecution instituted or continued by the present defendant; (2) with malice and without probable cause; (3) that terminated in the plaintiff's favor; and (4) caused damage to the plaintiff. Id. at 882.
The defendants have moved for summary judgment arguing that there is no evidence to establish that the plaintiff was subjected to a criminal prosecution or that the defendants acted with malice. Additionally, the defendants contend they are entitled to qualified immunity because arguable probable cause existed for the defendants to conclude that the plaintiff had failed to comply with the terms of his probation.
The plaintiff counters the motion for summary judgment by claiming that his arrest and extradition to New York was a criminal proceeding under New York law and that malice can be inferred in the absence of probable cause. Likewise, the plaintiff points to the absence of probable cause to oppose the application of qualified immunity.
1. Criminal Prosecution
The defendants contend that the probation revocation proceedings that the plaintiff was subjected to do not amount to a "criminal prosecution" for purposes of the first element of common law malicious prosecution. In response, the plaintiff argues that binding precedent concludes otherwise, that New York law controls whether the proceeding was a criminal prosecution, and that the defendants’ interpretation of the criminal prosecution element is inconsistent with the Fourth Amendment's protections against unreasonable seizures.
The binding precedent cited by the plaintiff stands for the proposition that an initial step of a criminal prosecution is obtaining a warrant. See Whiting v. Traylor , 85 F.3d 581, 585 (11th Cir. 1996). While this is true, the case relied on by the plaintiff does not address the distinction between a criminal charge and a probation revocation. However, another case cited by the plaintiff— Williams v. Georgia Dep't of Corr , 1:11-CV-1296-AT, 2012 WL 12895637 (N.D. Ga. Dec. 18, 2012) —while not binding, is directly on point. In that case, Judge Totenberg determined that in the context of a § 1983 malicious prosecution claim, a probation revocation is a continuation of a criminal prosecution. This court agrees. It is true that a probation revocation may not result in a criminal conviction, and in some contexts, a probation revocation hearing is not considered a criminal proceeding. See, e.g., Morgan v. State , 308 Ga.App. 69, 706 S.E.2d 588 (Ga. Ct. App. 2011) (holding that double jeopardy does not bar subsequent indictment for same offense that was the basis for revocation and stating that a probation revocation proceeding is not a criminal proceeding); Black v. Romano , 471 U.S. 606, 613, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985) (holding that a probationer is generally not entitled to "the full panoply of procedural safeguards associated with a criminal trial"). But under the facts of this case, the plaintiff was subject to an arrest warrant, he was taken into custody (for 44 days), and extradited to another jurisdiction where he was brought before a tribunal to answer for the alleged violations of the terms of his probation. Therefore, the court finds that the violation reports initiated by the defendants in this case may serve as the basis for a malicious prosecution claim. But see Walker v. Dean , 1:15-CV-3602-WSD, 2016 WL 3227501 (N.D. Ga. June 13, 2016) (holding that a petition for probation revocation is not a criminal prosecution for purposes of a § 1983 claim for malicious prosecution). 2. Malice
The defendants argue that neither of them acted with malice. As to Roscoe, the defendants contend that her submission of a violation report based on information provided to her that the plaintiff absconded was done in compliance with the requisite slight evidence standard applicable to probation officers revoking a probationer and even meets the more stringent standard of probable cause that applies to a police officer arresting a person for a criminal violation. With respect to Shannon, the defendants concede that the evidence taken in the light most favorable to the plaintiff shows that Shannon, despite being provided the correct address, went to the incorrect address in his two efforts to location the plaintiff. But, according to the defendants, even this evidence is insufficient to meet the malice standard because it establishes nothing more than negligence.
In response to the motion for summary judgment, the plaintiff argues that the existence of malice is a question of fact for the jury, and that the jury is entitled to infer malice if there is a want of probable cause. Specifically, the plaintiff contends that Shannon "lied about Plaintiff absconding" and Roscoe falsely informed the New York probation official that the plaintiff was obligated to report to the probation office but failed to do so.
The Eleventh Circuit has held that an officer's investigation must be viewed in terms of "an officer acting reasonably under the circumstances...." Kingsland v. City of Miami , 382 F.3d 1220, 1228–29 (11th Cir. 2004) (citing Sevigny v. Dicksey , 846 F.2d 953 (4th Cir. 1988) ). "A police officer may not close his or her eyes to facts that would help clarify the circumstances of an arrest." Id.
Importantly, in circumstances where the alleged probable cause is based on false information, the Eleventh Circuit has held that the complete lack of independent investigative work is noteworthy to the probable cause analysis. Id. at 1229. As to Shannon, he did no investigation regarding the plaintiff's proper address even when it was evident to him that his initial notification card was not received by the plaintiff (or anyone) and the house he visited appeared vacant. Likewise, Roscoe sought no corroboration of the report she received from Shannon when a cursory review of the computer system would have revealed that the plaintiff recently updated his address and that Shannon did not go to the new address. Furthermore, Roscoe, compounded her failure by falsely reporting that the plaintiff was obligated to report to the probation office when a review of the file would have reminded her that he was seen in the field. While Roscoe does not explain her failure to review the plaintiff's information in the computer system or her false statement that the plaintiff was required to report to the office, she does indicate that her caseload was overwhelming and because of the overload, the atmosphere in the office was chaotic. Roscoe Dep. at 59-61 [Doc. No. 47].
In a Fourth Circuit case relied heavily upon by the Eleventh Circuit, a police officer made an arrest without heeding certain, easily obtained information; as a result, the Fourth Circuit held that the officer failed to act reasonably. Kingsland , 382 F.3d at 1228-29 (citing Sevigny , 846 F.2d at 957 ). According to the Fourth Circuit, the officer "simply did not bother to do what any police officer acting reasonably in the circumstances would have done to clarify the factual situation" and that "[t]here was no exigency which prevented his doing so." Sevigny , 846 F.2d at 958.
For this court to find that the defendants here had arguable probable cause to institute the probation revocation proceedings against the plaintiff, it would have to conclude that no good-faith investigation whatsoever is required before the initiation of the process leading to the plaintiff's arrest, detainment, extradition, and appearance before a New York court. This court is unwilling to make such a holding. Therefore, there remains a question of fact as to the existence of malice.
3. Qualified Immunity
"Qualified immunity offers complete protection for individual public officials performing discretionary functions ‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ " Sherrod v. Johnson , 667 F.3d 1359, 1363 (11th Cir. 2012) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ). " ‘Once discretionary authority is established, the burden then shifts to the plaintiff to show that qualified immunity should not apply.’ " Edwards v. Shanley , 666 F.3d 1289, 1294 (11th Cir. 2012) (quoting Lewis v. City of W. Palm Beach , 561 F.3d 1288, 1291 (11th Cir. 2009) ). To meet this burden, a plaintiff must establish that "the officer's conduct amounted to a constitutional violation" and "the right violated was ‘clearly established’ at the time of the violation." City of W. Palm Beach , 561 F.3d at 1291. This two-step analysis may be done in whatever order is deemed most appropriate for the case. Id. (citing Pearson v. Callahan , 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ).
In this case, the defendants do not assert that they were acting within their discretionary authority. Instead, the defendants move straight to their arguments pertaining to whether the defendants violated the plaintiff's clearly established rights. Nevertheless, the court concludes that the record supports a finding that the defendants were acting in their discretionary authority.
Viewing the facts in the light most favorable to the plaintiff, as this court is bound to do, each defendant provided false information about the plaintiff that resulted in his arrest and extradition. The Supreme Court has held that the constitution prohibits an officer from making perjurious or recklessly false statements in support of a warrant. See Kelly v. Curtis , 21 F.3d 1544, 1554 (11th Cir. 1994) (citing Franks v. Delaware , 438 U.S. 154, 156, 165–71, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) ). The Eleventh Circuit reasoned that although Franks involved a search warrant, its rule is applicable in a case challenging a search made pursuant to an improperly obtained arrest warrant. Id. In this case, there is at least a question of fact as to whether the defendants recklessly made false statements resulting in a warrant for the plaintiff's arrest. Notably, however, the Eleventh Circuit has expressly held that the Franks rule does not apply to negligent misrepresentations or omissions. Id. (emphasis in original). Therefore, to succeed on his § 1983 malicious prosecution claim the plaintiff must prove that the defendants’ falsehoods were not just negligently false, but recklessly so. West Point–Pepperell v. Donovan , 689 F.2d 950, 959 (11th Cir. 1982) (holding that a warrant is invalid if it was based on a police officer's recklessly false misstatements and omissions, but not if based on merely negligently false misstatements and omissions).
The distinction between reckless conduct and negligent conduct is even more significant in determining whether the defendants violated a "clearly established" right. A right is clearly established when it is "sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton , 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). The plaintiff may meet this burden in two ways: "he may point to either (1) earlier case law from the Supreme Court, this Eleventh Circuit Court of Appeals, or the Georgia Supreme Court that is materially similar to the current case and therefore provided clear notice of the violation or (2) general rules of law from a federal constitutional or statutory provision or earlier case law that applied with "obvious clarity" to the circumstances, establishing clearly the unlawfulness of the defendants’ conduct." Long v. Slaton , 508 F.3d 576, 584 (11th Cir. 2007). "This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent." Id. (internal citation omitted). What matters is "whether the state of the law gave the defendants fair warning that their alleged conduct was unconstitutional." Vaughan v. Cox , 343 F.3d 1323, 1332 (11th Cir. 2003) (internal citations and quotations omitted). In other words, to demonstrate that the law at the time of the defendants’ actions established that their conduct would violate the constitution, "Plaintiff[ ] ha[s] the burden of demonstrating that Defendants—at the pertinent time and given the specific circumstances of this case—had fair notice that [their] conduct would violate clear federal law." Long , 508 F.3d at 584.
The Eleventh Circuit has specifically recognized that the "the difference between ‘reckless’ and merely ‘negligent’ disregard for the truth is not crystal clear." Kelly v. Curtis , 21 F.3d 1544, 1554 (11th Cir. 1994). In other words, the constitution prohibits an officer from making recklessly false statements but does not reach negligently false statements; therefore, to deprive an officer of the protection of qualified immunity, case law must have staked out the line between reckless and merely negligent conduct. Id. at 1554. In 2014, the Eleventh Circuit concluded that because of the absence of a clear distinction in what is a negligent falsehood and what is a reckless falsehood, an officer does not lose qualified immunity if all a plaintiff can prove is that the officer made recklessly false statements in order to obtain a search warrant. Carter v. Gore , 557 F. App'x 904, 908 (11th Cir. 2014). This court finds that the Eleventh Circuit's reasoning applies to recklessly false statements made to obtain an arrest warrant for a probation violation. The plaintiff has cited no change in binding law since this decision that would have put the defendants on notice that their conduct would violate clear federal law.
The plaintiff filed a notice of supplemental authority [Doc. No. 50] citing Williams v. Aguirre , 965 F.3d 1147 (11th Cir. 2020). In Williams , the Eleventh Circuit concluded its binding precedent sets forth a clearly established right to be free from a seizure based on intentional and material misstatement in a warrant application. Id. at 1169-1170. The Williams decision has no applicability to this case, however, because there is no evidence of intentional misrepresentation by the defendants here. Rather, the facts in this case, taken in the light most favorable to the plaintiff, show that the defendants were incompetent at their jobs and completely failed to take reasonable actions to ensure that they reported accurate information. Because of the absence of legal precedent establishing a bright line as to where this conduct is merely negligent and where it reaches the point of recklessness, the plaintiff cannot meet his burden on the clearly established prong of the qualified immunity.
The plaintiff does argue that this is a case of obvious clarity. The words of the pertinent federal statute or federal constitutional provision in some cases will be specific enough to establish clearly the law applicable to particular conduct and circumstances and to overcome qualified immunity, even in the total absence of case law. Vinyard v. Wilson , 311 F.3d 1340, 1350 (11th Cir. 2002). For example, the words of a federal statute or federal constitutional provision may be so clear and the conduct so bad that case law is not needed to establish that the conduct cannot be lawful. However, the Eleventh Circuit's express statement regarding the lack of clarity in the difference between conduct which is negligent and that which is reckless in the context of providing information to secure an arrest warrant removes this case from the category of "obvious clarity."
The plaintiff has failed carry his burden to show that the defendants violated a clearly established constitutional right. Therefore, the defendants are entitled to qualified immunity as to the plaintiff's malicious prosecution claim.
B. Fourteenth Amendment
In moving for summary judgment, the defendants argue that the plaintiff cannot prove either a substantive due process violation or a procedural due process violation. In responding to the motion for summary judgment, the plaintiff concedes that the Fourth Amendment is adequate to protect his constitutional rights, but he contends that he may also proceed under the due process clause of the Fourteenth Amendment.
Regardless of whether the plaintiff can proceed under the Fourth Amendment and the Fourteenth Amendment to challenge the conduct at issue here, the defendants’ entitlement to qualified immunity is dispositive of both. Therefore, to the extent that the plaintiff asserts a separate claim—premised on the Fourteenth Amendment—based on the false information contained in the violation reports, qualified immunity is applicable to both defendants.
C. Eighth Amendment
The defendants move for summary on the plaintiff's claim based on the Eight Amendment, arguing that because neither defendant ever physically confined the plaintiff, he has no Eighth Amendment claim against them. The plaintiff did not address this argument in response to the motion for summary judgment. Grounds alleged in a complaint but not addressed at summary judgment are deemed abandoned. Road Sprinkler Fitters Local Union No. 669 v. Independent Sprinkler Corp. , 10 F.3d 1563, 1568 (11th Cir. 1994). Therefore, the defendant is entitled to summary judgment as to the plaintiff's Eighth Amendment claim.
IV. Conclusion
Based on the foregoing, the defendants’ motion for summary judgment [Doc. No. 27] is GRANTED. The clerk is DIRECTED to close this civil action.
SO ORDERED, this 28th day of August, 2020.