Opinion
Case No. 1:19-CV-120 (LAG)
2020-03-18
Lon KEMENESS, Plaintiff, v. WORTH COUNTY, GEORGIA, et al., Defendants.
Samuel L. Mikell, Kathryn Hughes Pinckney, Brent J. Savage, Savannah, GA, for Plaintiff. Raleigh Rollins, Thomasville, GA, for Defendants.
Samuel L. Mikell, Kathryn Hughes Pinckney, Brent J. Savage, Savannah, GA, for Plaintiff.
Raleigh Rollins, Thomasville, GA, for Defendants.
ORDER
LESLIE A. GARDNER, JUDGE
Before the Court are Defendants Worth County, Georgia and Sheriff Don Whitaker's (Worth County Defendants) Motion to Dismiss (Doc. 12 ) and Defendant Jeff Hobby's Motion to Dismiss (Doc. 11 ). For the reasons set forth below, the Worth County Defendants' Motion is GRANTED , and Hobby's Motion is GRANTED in part and DENIED in part . All of Plaintiff's claims against the Worth County Defendants and Plaintiff's attorney-client privilege claim against Hobby are DISMISSED with prejudice . Plaintiff's 42 U.S.C. § 1983, Federal Wiretap Act, and Georgia eavesdropping claims against Hobby remain.
PROCEDURAL BACKGROUND
On July 12, 2019, Plaintiff Lon Kemeness filed this putative class action against Hobby, Worth County, and Sheriff Whitaker (in his official capacity as Worth County sheriff), alleging that Hobby—the former Worth County sheriff—had recorded privileged meetings between Plaintiff and his clients in the Worth County Jail's attorney-client interview room. (Doc. 1. ) Hobby filed his Motion to Dismiss on August 14, 2019, and the Worth County Defendants filed their Motion to Dismiss two days later. (Docs. 11, 12.) The Worth County Defendants filed a supplemental brief to correct an error in their Motion on August 21. (Doc. 15. ) Both Motions seek dismissal of all claims. (Doc. 11 at 1; Doc. 12 at 4. ) Plaintiff responded to Hobby and the Worth County Defendants' Motions on September 18 and 20, respectively. (Docs. 18, 19.) The Worth County Defendants replied on October 4. (Doc. 21. ) Hobby did not file a reply. The Motions are now ripe for review. See M.D. Ga. L.R. 7.3.1(A).
The Worth County Defendants initially filed a single paper styled "Defendant Worth County and Don Whitaker's Memorandum in Support of Motion to Dismiss" (Doc. 12 ), which did not comply with Middle District of Georgia Local Rule 7.1.
LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6), "a complaint must contain specific factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is plausible on its face if the complaint alleges enough facts to "allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. A complaint must plead "enough fact[s] to raise a reasonable expectation that discovery will reveal evidence" of the defendant's liability. Twombly , 550 U.S. at 556, 127 S.Ct. 1955. The Court must "take the factual allegations in the complaint as true and construe them in the light most favorable to the plaintiffs," but the same liberal reading does not apply to legal conclusions. Edwards v. Prime, Inc. , 602 F.3d 1276, 1291 (11th Cir. 2010). "[A] plaintiff armed with nothing more than conclusions" cannot "unlock the doors of discovery." Iqbal , 556 U.S. at 678–79, 129 S.Ct. 1937. Additionally, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678, 129 S.Ct. 1937.
FACTUAL ALLEGATIONS
At some point while he was sheriff of Worth County, Hobby had an automated recording device placed in the attorney-client interview room at the Worth County Jail. (Doc. 1 ¶¶ 27, 39, 46.) The device recorded privileged meetings between attorneys and their clients, jail inmates. (Id. ¶ 19.) The device recorded at least six such meetings between Plaintiff and his clients. (Id. ¶ 25.) Neither Hobby nor any representative of the Worth County Sheriff's Office obtained a warrant authorizing the surveillance of the meetings. (Id. ¶ 20.) Neither Plaintiff nor any of his clients knew that a recording device was in the room or that anyone was monitoring the content of their conversations. (Id. ¶¶ 24, 26.)
On October 3, 2017, Hobby was indicted for various offenses arising out of a search of Worth County High School. (Id. ¶¶ 10–11.) On November 13, Governor Nathan Deal suspended Hobby from office and appointed Bobby Sapp as interim sheriff. (Id. ¶ 12.) Sapp reported the discovery of the recording device to the Georgia Bureau of Investigation on February 26, 2018. (Id. ¶ 15.) In March 2018, Hobby was indicted on one count of violation of oath office and sixty-six counts of eavesdropping and surveillance in violation of O.C.G.A. § 16-11-62, based on alleged eavesdropping in the jail interview room from July 12, 2017 to February 26, 2018. (Id. ¶ 16.) Hobby was eventually charged with additional counts of eavesdropping and surveillance, for a total of eighty-nine counts. (Id. ¶ 17.) In June 2018, Hobby pled guilty in Worth County Superior Court to all charges arising out of both the school search and the jail recordings. (Id. ¶ 18.)
Plaintiff alleges eight counts in his Complaint:
(I) violations of Georgia's eavesdropping statute, O.C.G.A. § 16-11-62(2), against all Defendants, (id. ¶¶ 37–41);
(II) violations of Plaintiff's attorney-client privilege against all Defendants, (id. ¶¶ 42–48);
(III) violations of the Fourth Amendment right to privacy, in claims brought pursuant to § 1983, against the Worth County Defendants, (id. ¶¶ 49–56);
(IV) violations of the Fourth Amendment right to privacy, in a claim brought pursuant to § 1983, against Hobby, (id. ¶¶ 57–63);
(V) violations of the Federal Wiretap Act (Act), 18 U.S.C. § 2510 et seq. , against all Defendants, (id. ¶¶ 64–70);
(VI) a claim for punitive damages against Hobby, (id. ¶¶ 71–73);
(VI) a claim for attorney's fees under O.C.G.A. § 13-6-11 against all Defendants, (id. ¶¶ 74–76); and
(VII) a claim for attorney's fees under 42 U.S.C. § 1988 and 18 U.S.C. § 2520(b)(3) against all Defendants, (id. ¶¶ 71–73).
The Complaint lists two Count Sixes.
DISCUSSION
I. Worth County Defendants' State Sovereign Immunity
The Worth County Defendants argue that the doctrine of sovereign immunity bars Plaintiff's state-law claims (i.e. his O.C.G.A. § 16-11-62 and attorney-client privilege claims) against Worth County and Sheriff Whitaker. (Doc. 12 at 14–15.) Plaintiff does not address this argument in his Response. (See Doc. 19.) Sovereign immunity protects both Sheriff Whitaker in his official capacity and Worth County from suit for violations of state law. "The Georgia Constitution extends sovereign immunity to ‘the state and all of its departments and agencies,’ including sheriffs and counties." Richardson v. Quitman Cty. , 912 F. Supp. 2d 1354, 1368 (M.D. Ga. 2012). "[T]he county sheriff in his official capacity is immune from tort liability in performing an official function and may be liable only to the extent that the county has waived sovereign immunity by statute." Boyd v. Nichols , 616 F. Supp. 2d 1331, 1349 (M.D. Ga. 2009) (quoting Howard v. City of Columbus , 239 Ga.App. 399, 521 S.E.2d 51, 65 (1999) ).
"[S]overeign immunity is not ‘an affirmative defense that must be established by the party seeking its protection.’ To the contrary, immunity from suit is ‘a privilege that is subject to waiver by the State, and the waiver must be established by the party seeking to benefit from the waiver.’ " Fulton Cty. Sch. Dist. v. Jenkins , 347 Ga.App. 448, 820 S.E.2d 75, 77 (2018) (quoting Tift Cty. Sch. Dist. v. Martinez , 331 Ga.App. 423, 771 S.E.2d 117, 119–20 (2015) ). Therefore, the Worth County Defendants are entitled to the benefit of sovereign immunity unless Plaintiff can establish that sovereign immunity has been waived. Plaintiff has not identified any statute or other mechanism by which sovereign immunity has been waived. Accordingly, Plaintiff's state-law claims (Counts I and II) against the Worth County Defendants are barred.
II. Sheriff Whitaker's Eleventh Amendment Immunity
The Worth County Defendants also argue that Plaintiff's § 1983 claim against Sheriff Whitaker is barred by Eleventh Amendment immunity because Sheriff Whitaker, in his official capacity, is an arm of the state. (Doc. 12 at 4–8.) "Eleventh Amendment immunity bars suits brought in federal court when the State itself is sued and when an ‘arm of the State’ is sued," unless the state waives it or Congress abrogates it. Manders v. Lee , 338 F.3d 1304, 1308 (11th Cir. 2003) (en banc); Cassady v. Hall , 892 F.3d 1150, 1152 (11th Cir. 2018).
A sheriff in Georgia "acts on behalf of the State in his function as a law enforcement officer and keeper of the peace." Grech v. Clayton Cty. , 335 F.3d 1326, 1347 (11th Cir. 2003) ; see also Richardson , 912 F. Supp. 2d at 1366 ("A Georgia sheriff is considered an ‘arm of the State’ when performing law enforcement functions, such as detaining and arresting suspects."). Although a sheriff does not necessarily "wear[ ] a ‘state hat’ for all functions," the Eleventh Circuit has "decided that a sheriff's ‘authority and duty to administer the jail in his jurisdiction flows from the State, not [the] County.’ " Purcell ex rel. Estate of Morgan v. Toombs Cty. , 400 F.3d 1313, 1325 (11th Cir. 2005) (quoting Manders , 338 F.3d at 1315 ); Lake v. Skelton , 840 F.3d 1334, 1340 (11th Cir. 2016) ("The sheriff, not the county, is the ‘governmental unit, subdivision, or agency’ having custody of inmates in county jails." (quoting O.C.G.A. § 42-5-2 )). The Worth County sheriff, then, functions as an arm of the state—and is thus entitled to Eleventh Amendment immunity—"when promulgating policies and procedures governing conditions of confinement at the [Worth] County Jail." Purcell , 400 F.3d at 1325.
Plaintiff's claim against Sheriff Whitaker is based on Hobby's allegedly causing a recording device to be placed in the jail attorney-client interview room. (Doc. 1 ¶¶ 27, 39, 46, 53.) Hobby's conduct concerns his administration of the jail and his promulgation of procedures governing conditions of confinement. This conduct falls squarely under the "state hat" functions as described by Manders and Purcell. As Plaintiff does not allege any waiver of immunity and as Congress did not abrogate it, Sheriff Whitaker is entitled to Eleventh Amendment immunity. Quern v. Jordan , 440 U.S. 332, 345, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) (holding that Congress did not abrogate Eleventh Amendment immunity when it enacted § 1983 ). Plaintiff's § 1983 claim against Sheriff Whitaker (Count III) is barred.
Likewise, the Federal Wiretap Act claim against Sheriff Whitaker (Count V) is barred. "[A] federal statute will not be read to abrogate a state's sovereign immunity unless Congress has made its intention to do so ‘unmistakably clear’ in the language of the statute." Cassady , 892 F.3d at 1153 (quoting Atascadero State Hosp. v. Scanlon , 473 U.S. 234, 242, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985) ). As discussed in detail below, the text of the Act is ambiguous on the question of its application to governmental entities. That, however, is irrelevant to the question of whether the Act abrogates the states' Eleventh Amendment immunity. The Court will only find abrogation "[i]f Congress' intention is ‘unmistakably clear in the language of the statute ....’ " Dellmuth v. Muth , 491 U.S. 223, 230, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989) (quoting Atascadero , 473 U.S. at 242, 105 S.Ct. 3142 ). Because congressional intent to abrogate the states' right is not "both unequivocal and textual," id. , Plaintiff's Federal Wiretap Act claim against Sheriff Whitaker is barred by Eleventh Amendment immunity. Accordingly, all claims against Sheriff Whitaker are dismissed.
III. Federal Wiretap Act Claims
The Worth County Defendants argue that the Federal Wiretap Act does not impose civil liability on governmental entities like them. (Doc. 12 at 10.) Congress passed the Wiretap Act in 1968 as part of the Omnibus Crime Control and Safe Streets Act, making it a crime for "any person" to "willfully intercept[ ], endeavor[ ] to intercept, or procure[ ] any other person to intercept or endeavor to intercept, any wire or oral communication." Pub. L. No. 90-351, § 802, 82 Stat. 197, 223 (1968) (codified as amended at 18 U.S.C. § 2511(1)). The Act included a civil remedies provision, codified at 18 U.S.C. § 2520, which allows an individual whose communications are intercepted in violation of the Act to bring a private cause of action against any "person" responsible for such violations. It is clear that § 2520 did not apply to government agencies prior to 1986. The Act, then and now, defines a "person" as "any employee, or agent of the United States or any State or political subdivision thereof, and any individual, partnership, association, joint stock company, trust, or corporation." Compare 18 U.S.C. § 2510(6) with 82 Stat. at 212. Civil actions, therefore, could not be brought against states and their political subdivisions directly, but only their employees and agents. Anderson v. City of Columbus , 374 F. Supp. 2d 1240, 1245 (M.D. Ga. 2005) ; Garza v. Bexar Metro. Water Dist. , 639 F. Supp. 2d 770, 773 (W.D. Tex. 2009) ; S. Rep. No. 90-1097 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2179 ("The definition explicitly includes any officer or employee of the United States or any State or political subdivision of a State. Only the governmental units themselves are excluded.").
As enacted in 1968, § 2520 provided, in relevant part: "Any person whose wire or oral communication is intercepted, disclosed, or used in violation of this chapter shall [ ] have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use such communications ...." 82 Stat. at 223.
When Congress passed the Electronic Communications Privacy Act of 1986, however, § 2520 was amended to provide that "any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity which engaged in that violation such relief as may be appropriate." Pub. L. No. 99-508, § 103, 100 Stat. 1848, 1854 (1986) (emphasis added). Congress amended this section again in 2001, excluding the United States from liability as an "entity." USA PATRIOT Act of 2001, Pub. L. No. 107-56, § 223(a)(1), 115 Stat. 272, 293. While there is a split in authority—and the Eleventh Circuit has not yet ruled on this issue—the majority view both nationwide and among our sister courts in this circuit is that Congress intended to make governmental entities liable with the 1986 amendment. To determine whether the Act extends liability to governmental entities, the Court begins with the text of the statute. In re McLean , 794 F.3d 1313, 1320 (11th Cir. 2015). The text of the Act is ambiguous. The FWA's substantive provision prohibits interception by "any person," but the civil remedy provision creates a right of action against "the person or entity , other than the United States, which engaged in that violation." 18 U.S.C. §§ 2511(1), 2520(a) (emphasis added). Complicating matters, "person" has a particular meaning within the FWA that does not include governmental entities, but the statute does not define "entity." Id. § 2510(6).
Since 2001, § 2520(a) has read: "Except as provided in section 2511(2)(a)(ii), any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate." 18 U.S.C. § 2520(a). Section 2511(2)(a)(ii) authorizes wire and electronic communications service providers to assist law enforcement in intercepting communications and conducting electronic surveillance under certain circumstances.
Conner v. Tate , 130 F. Supp. 2d 1370, 1374–75 (N.D. Ga. 2001) ; Tapley v. Collins , 41 F. Supp. 2d 1366, 1380 (S.D. Ga. 1999), rev'd in part on other grounds, appeal dismissed in part , 211 F.3d 1210 (11th Cir. 2000) ; Adams v. City of Battle Creek , 250 F.3d 980, 985 (6th Cir. 2001) ; Garza , 639 F. Supp. 2d at 773 ; Campbell v. Beckley Police Dep't , 2007 WL 2318050, at *5 (S.D.W. Va. June 6, 2007), report and recommendation adopted in relevant part, rejected in part on other grounds , 2007 WL 2318056 (S.D.W. Va. Aug. 8, 2007) ; Medina v. Cty. of Riverside , 2006 WL 8437749, at *5 (C.D. Cal. Dec. 1, 2006) ; Williams v. City of Tulsa , 393 F. Supp. 2d 1124, 1132 (N.D. Okla. 2005) ; Huber v. N.C. State Univ. , 163 N.C.App. 638, 594 S.E.2d 402, 407 (2004) ; PBA Local No. 38 v. Woodbridge Police Dep't , 832 F. Supp. 808, 822–23 (D.N.J. 1993).
Contra Anderson , 374 F. Supp. 2d at 1245 ; Seitz v. City of Elgin , 719 F.3d 654, 660 (7th Cir. 2013) ; Doe v. Fed. Democratic Republic of Ethiopia , 189 F. Supp. 3d 6, 15 (D.D.C. 2016), aff'd , 851 F.3d 7 (D.C. Cir. 2017) (affirming district court on jurisdictional grounds without reaching Wiretap Act issue); Federated Univ. Police Officers' Ass'n v. Regents of Univ. of Cal. , 2015 WL 13273308, at *8 (C.D. Cal. July 29, 2015) ; Whitaker v. Barksdale Air Force Base , 2015 WL 574697, at *5 (W.D. La. Feb. 11, 2015) ; Adams v. Luzerne Cty. , 36 F. Supp. 3d 511, 524 (M.D. Pa. 2014).
In light of this ambiguity, the Court looks to the legislative history. In re McLean , 794 F.3d at 1320. As discussed above, Congress amended § 2520(a) in 1986 to add the words "or entity" to the list of those who can be held civilly liable under the FWA. As the Sixth Circuit explained in Adams v. City of Battle Creek , "[t]he addition of the words "entity" can only mean a governmental entity because prior to the 1986 amendments, the definition of "person" already included business entities." 250 F.3d at 985. "If ‘entity’ in this part of the statute was meant only to refer to business entities, then it would be ‘redundant or superfluous.’ " Conner , 130 F. Supp. 2d at 1374 (quoting Bodunde v. Parizek , 1993 WL 189941 (N.D. Ill. 1993) ). This interpretation is further bolstered by the 2001 amendment, which added "other than the United States" immediately after "entity," evincing Congress's intent to exclude the United States—but not any other governmental entities—from the list of entities the statute covers. "There would have been no reason for Congress to carve out an exception for the United States if governmental entities could not be sued under the statute." Garza , 639 F. Supp. 2d at 774.
Further support for this interpretation comes from a parallel provision of the Act: 18 U.S.C. § 2707(a). That section, which imposes civil liability for interception of stored wire and electronic communications, was also amended in 1986 to add "or entity" to the list of those who can be held civilly liable. The Senate report summarizing the changes to § 2707 specifically states that the word "entity" includes governmental entities. S. Rep. No. 541, 99th Cong., 2d Sess. 43 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3597; Adams , 250 F.3d at 985. Because "entity" in § 2707(a) should be read in pari materia with "entity" in its sister provision § 2520(a), the meaning of the former strongly supports the case for governmental liability under the latter. See Ala. Educ. Ass'n v. State Superintendent of Educ. , 746 F.3d 1135, 1158 (11th Cir. 2014) ("[S]tatutes on the same subject matter should be construed together so as to harmonize them.").
Accordingly, based on the 1986 and 2001 amendments to the Federal Wiretap Act and the legislative history behind them, as well as the reasoning of other courts that have examined the issue, the Court concludes that governmental entities may be liable under 18 U.S.C. § 2520.
A. Worth County
Worth County asserts that Plaintiff fails to state a claim against it under the Act because Plaintiff fails to allege that any Worth County personnel actually violated the Act. (Doc. 12 at 11 n.3.) Plaintiff alleges in his Complaint the "decisions to eavesdrop on the meetings between inmates housed at the Worth County Jail, and their attorneys, rose to the level of policy of Worth County and the Sheriff of Worth County." (Doc. 1 ¶ 54.) Under Georgia law, a sheriff's office is not a structural part of any county administration, and counties do not exercise authority or control over the policies or customs within a sheriff's office. Manders , 338 F.3d at 1310 ; see also Wayne Cty. Bd. of Comm'rs v. Warren , 236 Ga. 150, 223 S.E.2d 133, 134 (1976) (holding that county has no liability for actions of a county sheriff). County jails are operated by the county sheriff. See, e.g. , O.C.G.A. § 42-4-4 ; Manders , 338 F.3d at 1328. Thus, counties are generally not liable for the actions of a county sheriff. See, e.g., Grech , 335 F.3d at 1343. Plaintiff has alleged no facts showing the existence of any Worth County policy or action that violated his rights under the Act. (See Doc. 1. ) Accordingly, Plaintiff has failed to state a Federal Wiretap Act claim against Defendant Worth County.
B. Hobby
Hobby argues that Plaintiff's Federal Wiretap Act claim against him is subject to dismissal because Plaintiff does not allege that Hobby was serving as sheriff when Plaintiff's conversations were recorded. (Doc. 11-1 at 8–9.) Hobby contends that because he was not serving as sheriff during post-suspension conversations, he did not have dominion over the camera that allegedly recorded them, did not have control over the camera, and could not have used the camera to intentionally intercept or endeavor to intercept the conversations. (Id. )
Plaintiff plausibly alleges that Hobby, by having the recording device installed and set up to record without manual intervention, intentionally intercepted, or endeavored to intercept, all of his conversations recorded in the jail interview room, including the ones occurring after Hobby was suspended. (Doc. 1 ¶¶ 19, 27, 67.) Hobby has identified no caselaw, and the Court has found none, to support his argument that he must have had "dominion" or "control" over the camera in order to intentionally intercept, or endeavor to intercept, Plaintiff's communications. See Klumb v. Goan , 884 F. Supp. 2d 644, 661–62 (E.D. Tenn. 2012) (finding that ex-wife's installation of spyware that automatically forwarded to her emails received on ex-husband's computers constituted intentional interception under the FWA). Accordingly, Plaintiff states a claim against Hobby for violations of the Federal Wiretap Act.
IV. Section 1983 Claims
In Counts III and IV, Plaintiff alleges that Defendants violated his Fourth Amendment rights, in claims brought pursuant to § 1983. (Doc. 1 ¶¶ 49–63.)
A. Worth County
Plaintiff fails to state a § 1983 claim against Worth County because Plaintiff fails to allege Worth County had an "official policy" that caused a violation of Plaintiff's constitutional rights. (Doc. 12 at 9.) To state a claim against Worth County under § 1983, Plaintiff must allege facts showing that the County has a policy or custom of violating the constitutional rights of individuals and a direct causal link between the alleged policy and the violation of his constitutional rights. Grech , 335 F.3d at 1330. Plaintiff alleges in his Complaint the "decisions to eavesdrop on the meetings between inmates housed at the Worth County Jail, and their attorneys, rose to the level of policy of Worth County and the Sheriff of Worth County." (Doc. 1 ¶ 54.) As discussed above in Part III.A, under Georgia law, a sheriff's office is not a structural part of any county administration, and counties do not exercise authority or control over the policies or customs within a sheriff's office. Manders , 338 F.3d at 1310. Thus, counties are generally not liable for the actions of a county sheriff. See, e.g., Grech , 335 F.3d at 1343.
Furthermore, even if the County could be held liable for the actions of the sheriff, the County may be held liable only when its official policy causes a constitutional violation. Id. at 1329. Plaintiff has not alleged facts showing the existence of any Worth County policy that caused a deprivation of his constitutional rights. (See Doc. 1. ) Accordingly, Plaintiff has failed to state a § 1983 claim against Worth County.
B. Hobby
"[Section] 1983 affords a ‘civil remedy’ for deprivations of federally protected rights caused by persons acting under color of state law." Parratt v. Taylor , 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled on other grounds by Daniels v. Williams , 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). The elements of a § 1983 claim are that: "(1) [ ] the conduct complained of was committed by a person acting under color of state law; and (2) [ ] this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States." Id. Hobby argues that any claims arising from recordings made after November 13, 2017 must be dismissed because Hobby was suspended from office on that date and was no longer the sheriff. Thus, Hobby argues that he was a "private actor" who was not acting under color of state law and who could not violate Plaintiff's Fourth Amendment rights.
Here, the conduct complained of—the initiation of automated recordings of attorney-client meetings—was committed by a person acting under state law: then-Sheriff Hobby. As to the second element, this conduct—the initiation of automated recordings of attorney-client meetings—deprived attorneys and inmates at the Worth County Jail of their right to be free from unlawful searches. Accordingly, all of the recordings made from the point that Hobby caused the recording device to be installed and set to automatically record—the conduct complained of—are actionable, regardless of when they were recorded. That the ultimate consequences of Hobby's unlawful act were realized after Hobby was no longer a government employee does not change the fact that Hobby took the injury-causing act when he was sheriff, and thereby acting under color of state law. This analysis might be different if Hobby was required to take a separate action (e.g. pushing a button to turn on the device each time it recorded a conversation), thus creating separate and distinct actionable conduct. But that is not the case here. The conduct at issue began with Hobby's activating the automatic recording device and continued until the device was discovered and deactivated. Thus, Hobby committed a single—albeit continuing—action which constitutes the "conduct complained of" for purposes of § 1983. It is undisputed that Hobby, the then-sheriff, was acting under color of state law when he activated the recording device. Accordingly, Plaintiff has met the requirements for notice pleading and states a claim for which relief can be granted.
V. O.C.G.A. § 16-11-62 Claim Against Hobby
Hobby and the Worth County Defendants argue that Plaintiff's Georgia eavesdropping claim should be dismissed because the Georgia eavesdropping statute does not create a private cause of action. (Doc. 11-1 at 9–11; Doc. 12 at 12–13.) That law prohibits "[a]ny person, through the use of any device, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view ...." O.C.G.A. § 16-11-62(2). "Eavesdropping victims can bring civil actions under Georgia's eavesdropping act." Tapley , 41 F. Supp. 2d at 1369 ; see Conner , 130 F. Supp. 2d at 1380 (denying motion for judgment on the pleadings as to the plaintiff's § 16-11-62 claim). The statute itself anticipates civil actions. A related section provides that "[a] good faith reliance on a court order or legislative authorization shall constitute a complete defense to any civil or criminal action brought under [the wiretapping, eavesdropping, and surveillance] part or under any other law." O.C.G.A. § 16-11-64(e) (emphasis added); Awbrey v. Great Atl. & Pac. Tea Co. , 505 F. Supp. 604, 610 (N.D. Ga. 1980) (citing what is now § 16-11-64(e) and finding an implied cause of action for wiretapping). Plaintiff, therefore, states a claim against Hobby under § 16-11-62.
Plaintiff's § 16-11-62 claims against the Worth County Defendants are barred by sovereign immunity, see supra Part I, but the Court reviews their arguments inasmuch as they are relevant to the claim against Hobby.
VI. Attorney-Client Privilege Claim Against Hobby
Hobby and the Worth County Defendants argue that Plaintiff's claim for alleged violations of the attorney-client privilege is subject to dismissal because the privilege does not belong to the attorney, and thus Plaintiff lacks standing. (Doc. 11-1 at 11–12; Doc. 12 at 13–14.) Further, the Worth County Defendants argue that there is no private right of action for violations of the attorney-client privilege. (Doc. 12 at 13.)
As with his § 16-11-62 claims, Plaintiff's attorney-client privilege claims against the Worth County Defendants are barred by sovereign immunity.
"[S]tanding is an essential and unchanging part of the case-or-controversy requirement of Article III." Lujan v. Defenders of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). "To establish standing, a plaintiff must present an injury that is concrete, particularized, and actual or imminent; fairly traceable to the defendant's challenged action; and redressable by a favorable ruling." Horne v. Flores , 557 U.S. 433, 445, 129 S.Ct. 2579, 174 L.Ed.2d 406 (2009). The party seeking to invoke the court's jurisdiction bears the burden of establishing each element. Lujan , 504 U.S. at 561, 112 S.Ct. 2130. The critical question is whether the plaintiff "alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction." Horne , 557 U.S. at 445, 129 S.Ct. 2579 (quoting Summers v. Earth Island Inst. , 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) ).
In Georgia, the attorney-client privilege belongs to the client. Waldrip v. Head , 272 Ga. 572, 532 S.E.2d 380, 386 (2000), overruled on other grounds by Duke v. State , 306 Ga. 171, 829 S.E.2d 348 (2019) ; Peterson v. Baumwell , 202 Ga.App. 283, 414 S.E.2d 278, 280 (1992) ; Freedom Plastics, LLC v. Sparta Polymers, LLC , 2013 WL 12290257, at *4 (N.D. Ga. Apr. 1, 2013). Courts have characterized this point as "axiomatic." Peterson , 414 S.E.2d at 280. The privilege "is for the protection and benefit of the client, not of the attorney." Marriott Corp. v. Am. Acad. of Psychotherapists, Inc. , 157 Ga.App. 497, 277 S.E.2d 785, 789 (1981). Even assuming that the attorney-client privilege belonging to Plaintiff's clients was violated, Plaintiff does not have standing to sue for violations of a privilege that does not belong to him. MCC Mgmt. of Naples, Inc. v. Arnold & Porter, LLP , 2008 WL 4642835, at *2 (M.D. Fla. Oct. 20, 2008) ("[T]he law firm and its attorneys have no standing to seek a remedy for themselves for breach of the attorney-client privilege because the privilege does not belong to them."). Accordingly, Plaintiff has failed to state a claim for violation of the attorney-client privilege.
CONCLUSION
For the reasons set forth above, the Worth County Defendants' Motion to Dismiss (Doc. 12 ) is GRANTED , and Hobby's Motion to Dismiss (Doc. 11 ) is GRANTED in part and DENIED in part. All of Plaintiff's claims against the Worth County Defendants and Plaintiff's attorney-client privilege claim against Hobby are DISMISSED with prejudice . Plaintiff's § 1983, Federal Wiretap Act, and Georgia eavesdropping claims against Hobby remain.
SO ORDERED , this 18th day of March, 2020.