Summary
holding sovereign immunity barred plaintiff's state constitutional due process claim because there was no express waiver of immunity by defendant
Summary of this case from Moon v. Mayor Charles BrownOpinion
CIVIL ACTION NO. 1:05-cv-1642.
March 28, 2007
ORDER
The above-styled matter is presently before the court on defendants Mark A. Veazey, John Doe 1, John Doe 2, John Doe 3, and the City of Atlanta, Georgia's motion for summary judgment [docket no. 18].
Plaintiff filed the instant lawsuit on June 22, 2005. Plaintiff's suit stems from his arrest and detention by defendant Mark Veazey and other police officers on or around June 22, 2003. Plaintiff asserts claims under the Fourth, Eighth, and Fourteenth Amendments to the United States Constitution, as well as claims under Article I, Section I, Paragraphs 1 and 13 of the Georgia Constitution. Plaintiff's complaint also asserts claims for intentional infliction of emotional distress and assault and battery, and a claim under the Georgia Tort Claims Act.
Standard
Courts should grant summary judgment when "there is no genuine issue as to any material fact . . . and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party must "always bear the initial responsibility of informing the district court of the basis of its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). That burden is `discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Id. at 325; see also U.S. v. Four Parcels of Real Property, 941 F.2d 1428, 1437 (11th Cir. 1991).Once the movant has met this burden, the opposing party must then present evidence establishing that there is a genuine issue of material fact. Celotex, 477 U.S. at 325. The nonmoving party must go beyond the pleadings and submit evidence such as affidavits, depositions and admissions that are sufficient to demonstrate that if allowed to proceed to trial, a jury might return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). If he does so, there is a genuine issue of fact that requires a trial. In making a determination of whether there is a material issue of fact, the evidence of the non-movant is to be believed and all justifiable inferences are to be drawn in his favor. Id. at 255; Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1987). However, an issue is not genuine if it is unsupported by evidence or if it is created by evidence that is "merely colorable" or is "not significantly probative." Anderson, 477 U.S. at 249-50. Similarly, a fact is not material unless it is identified by the controlling substantive law as an essential element of the nonmoving party's case. Id. at 248. Thus, to create a genuine issue of material fact for trial, the party opposing the summary judgment must come forward with specific evidence of every element essential to his case with respect to which (1) he has the burden of proof, and (2) the summary judgment movant has made a plausible showing of the absence of evidence of the necessary element. Celotex, 477 U.S. at 323.
Facts
In light of the foregoing standard, the court finds the following facts for the purpose of deciding this motion for summary judgment only. On June 22, 2003, around 3:30 a.m., Officer Veazey and plaintiff came upon one another at Fourth and Peachtree Streets in Atlanta, Georgia. Officer Veazey states plaintiff was blocking an intersection and talking to two suspected prostitutes, one of which got into plaintiff's car. Plaintiff disputes these allegations, but does admit he was stopped at a traffic light and that there was a woman standing on the corner next to plaintiff's car.
After plaintiff proceeded through the intersection, Officer Veazey activated his blue lights in an attempt to stop plaintiff's vehicle, but plaintiff did not stop. Officer Veazey followed plaintiff's vehicle for a period of time and then plaintiff jumped out of his vehicle and ran away. Officer Veazey ordered plaintiff to stop, but plaintiff continued running from Officer Veazey. After losing sight of plaintiff for a period of time, Officer Veazey spotted plaintiff at a pay phone and ordered plaintiff to "freeze." Plaintiff began running from Officer Veazey again. Officer Veazey eventually caught up to plaintiff and plaintiff maintains he dropped to the ground in an effort to show Officer Veazey he was surrendering. Some sort of struggle took place between plaintiff and Officer Veazey as the officer placed plaintiff under arrest. Plaintiff asserts Officer Veazey hit him in the face with the butt of the officer's handgun several times before placing the handcuffs on plaintiff. After handcuffing plaintiff and placing him in the back of the police car, Officer Veazey took plaintiff to the local police precinct.
After being taken to the police precinct, plaintiff was taken to Grady Memorial Hospital for medical treatment for the injuries sustained at some time during the chase with Officer Veazey. Plaintiff underwent surgery to his face and was prescribed Vicodin, Motrin, Boost, and a saline rinse for his mouth. Plaintiff was given Motrin and Boost while at the jail but was not given Vicodin. Plaintiff was not given the prescribed saline solution to rinse his mouth with while at the jail. Plaintiff later developed an infection in his mouth.
Discussion
Plaintiff's Claims Under the Fourth Amendment
Plaintiff's first cause of action in his complaint alleges a violation of his rights to be free from unreasonable searches and seizures and the use of excessive force under the Fourth Amendment to the United States Constitution. Plaintiff alleges this claim against all defendants in their official capacities, and also against Officer Veazey in his individual capacity under 42 U.S.C. § 1983 ("§ 1983").
A § 1983 suit against a government defendant in his official capacity is a suit against the level of government by whom they are employed. See Kentucky v. Graham, 473 U.S. 159, 166, 105 S. Ct. 3099, 3105 (1985) (citations omitted) ("As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity."). In contrast, "[p]ersonal — capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law." Id. at 165, 105 S. Ct. at 3105. Accordingly, the court will analyze plaintiff's claim for violation of his constitutional rights against the City of Atlanta and other defendants in their official capacity as a claim against the City of Atlanta, and plaintiff's claim against Officer Veazey in his individual capacity as a claim directly against Officer Veazey.
Fourth Amendment Claims Against the City of Atlanta
Municipalities and local government units are included as "persons" to whom 42 U.S.C. § 1983 applies. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690, 98 S. Ct. 2018, 2036 (1978). Liability against municipalities under § 1983, however, must be predicated upon more than a theory of respondeat superior. Id. at 691, 985 S. Ct. at 2037 ("[A] municipality cannot be held liable solely because it employs a tortfeasor.") (emphasis in original). Municipal liability must be based on official policy, custom or practice of the city, or inadequate training or supervision of the city's employees. Id. at 690-91, 2035-36; City of Canton v. Harris, 489 U.S. 378, 387, 109 S. Ct. 1192, 1204 (1989).
Plaintiff alleges that the City of Atlanta failed to adequately train Officer Veazey with regard to proper treatment of arrestees/suspects, in probable cause and use of force, and to follow orders or perform duties assigned to him. With regard to the degree of fault that must be shown by the city's inaction for liability to attach, the Supreme Court has stated: "[T]he inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." City of Canton v. Harris, 489 U.S. at 388, 109 S. Ct. at 1204. This requirement ensures that the city's policies are the "moving force" behind the constitutional violation. Id. at 389, 109 S. Ct. at 1205. "Only where a municipality's failure to train its employees in a relevant respect evidences a `deliberate indifference' to the rights of its inhabitants can such a shortcoming be properly thought of as a city `policy or custom' that is actionable under § 1983." Id.
To prove that the City of Atlanta acted with deliberate indifference to the rights of plaintiff with regard to the training of its officers, plaintiff must show that the City inadequately trained or supervised its employees, that this failure to train or supervise is a city policy, and that the policy caused Officer Veazey to violate plaintiff's constitutional rights. Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998) (citations omitted). A plaintiff must present some evidence that the municipality knew of a need to train and/or supervise in a particular area and the municipality made a deliberate choice not to take any action." Id. at 1350-51. A municipality's knowledge of a need for training or supervision in a particular area may arise out of knowledge of a history of widespread prior abuse or prior incidents in which constitutional rights were similarly violated. Id. at 1351. The only form of training that does not require such proof because the need for training is "so obvious" without prior constitutional violations is the use of deadly force where firearms are provided to police officers. Id. at 1352 (citingCity of Canton, 489 U.S. at 390 n. 10, 109 S. Ct. 1197).
Plaintiff fails to cite any evidence to support a finding that the City of Atlanta was deliberately indifferent to plaintiff's constitutional rights with respect to the training of its police officers. The City of Atlanta trains its officers regarding appropriate use of force and the mechanics of arrest. Police recruits are also required to take courses in criminal law and procedure where they are taught about reasonable suspicion and probable cause. Plaintiff concedes in his response to defendants' motion for summary judgment that the City of Atlanta does train its police officers. Plaintiff further presents no evidence of prior constitutional violations under the Fourth Amendment for excessive force or unlawful search and seizure committed by the City of Atlanta or its police officers. Gold, 151 F.3d at 1351. In addition, even accepting plaintiff's allegation that Officer Veazey hit him in the face with his hand gun as true, this does not relate to the use of deadly force with a fire arm, and thus does not fall under the category of training that the need is so obvious as to bypass the requirement of prior constitutional violations to support a failure to train/supervise claim. Id. at 1352. Thus, plaintiff fails to present any evidence of a City policy of inadequate training or supervision.
Plaintiff also alleges that the City of Atlanta has a custom of failing to administer adequate disciplinary action against its officers because it allows officers to resign instead of being terminated, as it allegedly did with Officer Veazey. Plaintiff further contends that the City has a custom of not sustaining challenges to officer's actions in the absence of irrefutable proof of wrongdoing and that the City permits disciplined officers to substitute loss of leave for suspension. In support of these contentions, plaintiff presents evidence of Officer Veazey's resignation, the City's handling of plaintiff's complaint against Officer Veazey, and a complaint against Officer Veazey in 2001, which did not involve the use of excessive force or probable cause.
In addition to failing to properly supervise its employees, a municipality may be found in violation of § 1983 for violating citizens' constitutional rights through their customs and usages.Monell, 436 U.S. at 691, 2036. To establish liability, a plaintiff must "be able to prove the existence of a widespread practice that, although not authorized by written law or express municipal policy, is `so permanent and well settled as to constitute a custom or usage' with the force of law." St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S. Ct. 915, 926 (1988) (quoting Adickes v. S.H. Kress Co., 398 U.S. 144, 167-68, 90 S. Ct. 1598 (1970)). In addition, the Eleventh Circuit Court of Appeals has held "that a municipality's failure to correct the constitutionally offensive actions of its employees can rise to the level of a custom or policy `if the municipality tacitly authorizes these actions or displays deliberate indifference' towards the misconduct."Griffin v. City of Opa-Locka, 261 F.3d 1295, 1308 (11th Cir. 2001) (quoting Brooks v. Scheib, 813 F.2d 1191, 1193 (11th Cir. 1987)).
After reviewing the evidence presented by plaintiff, the court finds that it does not support a finding that the City had a custom or practice of failing to properly discipline its officers. Specifically, with regard to plaintiff's allegations that the City failed to properly discipline Officer Veazey regarding the incident with plaintiff and that the City allowed Officer Veazey to resign instead of being fired, all of these actions took place after the incident involving plaintiff, and thus cannot be said to be the "moving force" behind plaintiff's alleged injuries. See Gilmere v. City of Atlanta, 737 F.2d 894, 901 (11th Cir. 1984) (holding that "custom must be the moving force of the constitutional violation in order to establish liability of a government body under § 1983).
Even assuming that the City of Atlanta failed to properly discipline Officer Veazey regarding the complaint filed in 2001 regarding Officer Veazey's conduct at the Atlanta airport, this incident did not involve excessive force or probable cause, and further is at best an isolated incident that is unable to support a finding that this establishes a custom by the City of Atlanta. See id. at 904 (noting that an isolated violation is not the persistent, often repeated, constant violation that constitutes custom and policy). In addition, while plaintiff does submit Officer Veazey's Office of Professional Standards Disciplinary Complaint History, plaintiff fails to explain how this supports a finding that the City of Atlanta failed to appropriately discipline its officers, including Officer Veazey.See Brooks, 813 F.2d at 1193 ("Indeed, the number of complaints bears no relation to their validity."). The evidence is insufficient to show that the City of Atlanta tacitly authorized unconstitutional actions by its officers or displayed deliberate indifference. Accordingly, the court GRANTS the City of Atlanta and defendants', in their official capacities, motion for summary judgment on plaintiff's Fourth Amendment claim.
Fourth Amendment Claims Against Officer Veazey in his Individual Capacity
In response to plaintiff's claim against Officer Veazey in his individual capacity for violation of the Fourth Amendment, Officer Veazey asserts the defense of qualified immunity. Qualified immunity provides "complete protection for government officials sued in their individual capacities as long as `their conduct violates no clearly established statutory or constitutional rights of which a reasonable person would have known.'" Thomas v. Roberts, 261 F.3d 1160, 1170 (11th Cir. 2001) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982)) (additional quotations omitted).
"Qualified immunity is a question of law for the courts." Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th Cir. 1993). A public official must "prove that `he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred'" to be entitled to qualified immunity. Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991) (quoting Rich v. Dollar, 841 F.2d 1558, 1563 (11th Cir. 1988)). Once this is established, the burden shifts to the plaintiff to demonstrate that the defendant is not entitled to qualified immunity. Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002).
The Supreme Court set forth a two-part test in Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151 (2001), to assist in evaluating a claim of qualified immunity. 533 U.S. at 201, 121 S. Ct. at 2156. Once it has been determined that the officer was engaged in a discretionary function, the court must ask, "taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Id. When deciding the issue of qualified immunity on a motion for summary judgment, the court resolves "all the truly disputed facts in accord with Plaintiff's view of the facts." Purcell v. Toombs County, 400 F.3d 1313, 1320 (11th Cir. 2005). If the plaintiff's allegations establish a constitutional violation, the court must determine whether the right was "clearly established." Saucier, 533 U.S. at 201, 121 S. Ct. at 2156. This inquiry "must be undertaken in light of the specific context of the case, not as a broad general proposition." Id.
Plaintiff initially argues that Officer Veazey is not entitled to qualified immunity because he was not engaged in a discretionary function because he undertook acts "of a type that fell outside his job responsibilities." The test to determine whether a government official was acting in a discretionary function is whether the official was "(a) performing a legitimate job-related function (that is, pursuing a job-related goal), (b) through means that were within his power to utilize." Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004). In applying the test a court looks to the general nature of the defendant's action. Id. at 1266.
In the present case, plaintiff contends that Officer Veazey was not performing a legitimate job-related function because he pursued plaintiff to avoid having to respond to another call. The conduct engaged in by Officer Veazey, however, includes pursuing plaintiff by car with his blue lights on, impounding plaintiff's abandoned car, and chasing, detaining, and ultimately arresting plaintiff. All of these actions are, in general, part of Officer Veazey's responsibilities as a police officer and fall within his legitimate job description. See Lee, 294 F.3d at 1194 (holding "there can be no doubt that [the police officer] was acting in his discretionary capacity when he arrested [plaintiff]."). In addition, the actions engaged in by Officer Veazey fall within the scope of his official duties. Thus, Officer Veazey was engaged in a discretionary function when he allegedly caused plaintiff's injury.
The court will now turn to the two-part test from Saucier, and first must determine, under plaintiff's version of the facts, whether the facts show that Officer Veazey's conduct violated plaintiff's constitutional rights. Plaintiff first asserts that Officer Veazey violated the Fourth Amendment by attempting to pull plaintiff's vehicle over without probable cause. In determining whether Officer Veazey's decision to pull plaintiff's car over violated plaintiff's constitutional rights, the central issue is whether, at the time Officer Veazey attempted to stop plaintiff's vehicle, Officer Veazey had arguable probable cause to believe plaintiff was blocking the intersection or soliciting a prostitute. Gold v. City of Miami, 121 F.3d 1442, 1445 (11th Cir. 1997). Arguable probable cause exists when "reasonable officers in the same circumstances and possessing the same knowledge as the Defendants could have believed that probable cause existed to arrest." Scarbrough v. Myles, 245 F.3d 1299, 1302 (11th Cir. 2001) (internal quotations and citations omitted). This inquiry is based on the "objective factors that gave rise to" the officer's determination of probable cause, and it is irrelevant "whether the arrestees' actions actually constituted a crime." Id. at 1303 n. 8.
Officer Veazey states that he pursued plaintiff with his blue lights activated because plaintiff was blocking traffic and talking to two suspected prostitutes. Plaintiff denies both allegations, but does admit in his deposition testimony that when Officer Veazey pulled up next to him at a traffic light there was a woman standing on the corner next to his stopped car. While plaintiff denies talking to the suspected prostitutes, the court finds that an officer could have reasonably thought plaintiff was attempting to solicit one of the prostitutes and/or was blocking the intersection, and accordingly finds that Officer Veazey had arguable probable cause to pull plaintiff over. Thus, the court does not find Officer Veazey's initial attempt to stop plaintiff's vehicle to violate plaintiff's Fourth Amendment rights and Officer Veazey is entitled to summary judgment on this claim.
The court notes that defendants' motion for summary judgment also addresses the issue of whether Officer Veazey's arrest of plaintiff violated his Fourth Amendment rights. Plaintiff's response to defendants' motion for summary judgment only addresses the issue of whether Officer Veazey had probable cause to initially stop plaintiff. Thus, to the extent plaintiff's complaint asserts a claim of unlawful arrest, defendants are entitled to summary judgment on this issue as plaintiff appears to have abandoned the claim.
Plaintiff further contends that Officer Veazey violated his Fourth Amendment rights by using excessive force on plaintiff. "The Fourth Amendment's freedom from unreasonable searches and seizures encompasses the plain right to be free from the use of excessive force in the course of arrest." Lee, 284 F.3d at 1197 (citing Graham v. Connor, 490 U.S. 386, 394-95, 109 S. Ct. 1865 (1989)). In Graham, the Supreme Court stated that "the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." 490 U.S. at 396, 1872. The reasonableness of the force used is analyzed under an objective standard and the court asks whether the officer's actions were reasonable "in light of the facts and circumstances confronting [the police officer], without regard to his underlying intent or motivation."Kesinger v. Herrington, 381 F.3d 1234, 1248 (11th Cir. 2004).
The court must evaluate several factors, "including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396, 109 S. Ct. at 1872. "[T]he force used by a police officer in carrying out an arrest must be reasonably proportionate to the need for that force, which is measured by the severity of the crime, the danger to the officer, and the risk of flight." Lee, 284 F.3d at 1198.
Taking the facts as plaintiff has alleged them, at the time Officer Veazey approached plaintiff after chasing him, plaintiff went to the ground and his hands were outstretched and touched the ground ahead of his body. Plaintiff's Amended Declaration, ¶ 14. Plaintiff further asserts he did not struggle with or attempt to break-free from Officer Veazey. Id. at ¶ 15. Plaintiff states he was face-down on the ground with his hands outstretched to indicate he was surrendering and unarmed. Id. Plaintiff claims that before Officer Veazey placed plaintiff in handcuffs that he hit plaintiff in the face several times with the butt of his handgun. Id. at 16. Plaintiff ultimately underwent reconstructive surgery for a depressed right zygomatic arch in his face.
While it cannot be said that evading Officer Veazey was a crime of minor severity, the other two Graham factors weigh heavily in plaintiff's favor. Under plaintiff's version of the facts, he was lying on the ground with his hands out and he was unarmed, and thus was not posing an immediate threat to the safety of Officer Veazey. While plaintiff attempted to evade Officer Veazey earlier, plaintiff maintains that he was not evading and was not resisting arrest at the time he alleges Officer Veazey hit him in the face with the butt of his handgun. Even if, under plaintiff's allegation of the facts, Officer Veazey was entitled to use some force to bring plaintiff under control and place him under arrest, it would not rise to the level of striking plaintiff in the face with a handgun when he was not resisting arrest. In addition, the fact that plaintiff suffered a broken bone in his face as a result of being hit in the face with Officer Veazey's gun gives further support to a finding that the force used was excessive. See Leslie v. Ingram, 786 F.2d 1533, 1536 (11th Cir. 1986) (finding the extent of the injury inflicted to be an element to be analyzed in determining an excessive force claim). Based on plaintiff's account of the facts, it is clear that in striking plaintiff in the face with his handgun, Officer Veazey "used force that was plainly excessive, wholly unnecessary, and, indeed, grossly disproportionate under Graham," and this violated plaintiff's constitutional rights under the Fourth Amendment.Lee, 284 F.3d at 1198.
Because Officer Veazey's conduct violated plaintiff's Fourth Amendment right, the next question is whether that constitutional right was "clearly established" at the time of the violation. InHope v. Pelzer, the Supreme Court held that "the salient question . . . is whether the state of the law . . . gave [the officers] fair warning that their alleged treatment of [the plaintiff] was unconstitutional." 536 U.S. 703, 741, 122 S. Ct. 2508, 2516 (2002). In some cases, "the words of the pertinent federal statute or federal constitutional provision . . . 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." Vineyard v. Wilson, 311 F.3d 1340, 1350 (11th Cir. 2002). Under this test, "the law is clearly established, and qualified immunity can be overcome, only if the standards set forth in Graham and our own case law `inevitably lead every reasonable officer in [the defendant's] position to conclude the force was unlawful.'" Lee, 284 F.3d at 1199 (citations omitted).
In Smith v. Mattox, 127 F.3d 1416 (11th Cir. 1997), the Eleventh Circuit concluded that an officer's conduct was "far beyond the hazy border" and unlawfulness was "readily apparent even without clarifying caselaw" when the officer, while on the plaintiff's back and handcuffing him, broke plaintiff's arm, which required surgery for multiple fractures, even though plaintiff was not resisting. 127 F.3d at 1419-20. The court found that the officer had to have known he was violating the plaintiff's constitutional rights, even without caselaw on point.Id. at 1419. In the present case, while Officer Veazey possessed the lawful power to arrest and secure plaintiff, a reasonable officer could not have possibly believed that he had the legal authority to hit plaintiff in the face with the butt of a handgun several times while plaintiff was not resisting arrest. Lee, 284 F.3d at 1199; see also Priester v. City of Riviera Beach, 208 F.3d 919, 927 (11th Cir. 2000) (finding law clearly established and force was clearly excessive when officer released police dog to attack plaintiff who was lying on the ground, did not pose a threat to officers, and was not attempting to flee or resist arrest). Accordingly, Officer Veazey's motion for summary judgment on plaintiff's Fourth Amendment claim for excessive force in his individual capacity is DENIED.
Plaintiff's Claim Under the Fourteenth Amendment
Plaintiff's second cause of action in his complaint alleges a violation of plaintiff's rights to be free from unreasonable searches and seizures and the use of excessive force in violation of the Fourteenth Amendment to the United States Constitution. Plaintiff alleges this claim against all defendants in their official capacities, and also against Officer Veazey in his individual capacity.
In Graham, the Supreme Court held:
[A]ll claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other "seizure" of a free citizen should be analyzed under the Fourth Amendment and its "reasonableness" standard, rather than under a "substantive due process" approach.490 U.S. at 395, 109 S. Ct. at 1871 (emphasis in original). Plaintiff concedes that this is the controlling law and further states that he "will make no attempt to defend his claim of a 14th Amendment violation set forth in Tabb's Second Cause of Action." Accordingly, the court GRANTS defendants' motion for summary judgment [docket no. 18] on this claim.
Plaintiff's Claim Under the Eighth Fourteenth Amendments
Plaintiff's seventh cause of action in his complaint alleges that defendants failed to provide adequate medical care and that this constitutes deliberate indifference in violation of the Eighth and Fourteenth Amendments to the United States Constitution. Plaintiff seeks general and special damages from all defendants and punitive damages from defendant police officers.
The City of Atlanta and police officer defendants, in their official capacities, move for summary judgment on plaintiff's Eighth and Fourteenth Amendment claims that defendants failed to provide plaintiff with adequate medical care. The parties dispute which amendment applies to plaintiff's claim. Defendants contend that, because plaintiff was an arrestee/pre-trial detainee at the time the alleged violation occurred, the Fourteenth Amendment governs his claim for denial of adequate medical care. Plaintiff responds that because plaintiff was on parole at the time Officer Veazey arrested him that "[o]nce he was arrested the parole violation kicked in and he became a re-institutionalized ward of the state."
Plaintiff offers no legal support for its conclusory statement that, because plaintiff was on parole and arrested, his status while at the jail immediately shifted to that of prisoner and not arrestee/pre-trial detainee. Plaintiff presents no evidence that there was a formal adjudication of guilt on the charges against him during the time he alleges he was deprived of adequate medical care. Plaintiff was arrested on June 22, 2003, underwent surgery at Grady on June 23, 2003, was released back to the jail on June 24, 2003, and returned to Grady on June 29, 2003 and was informed his wound was infected. During that time, plaintiff was a pretrial detainee, not a prisoner, and therefore his claim is properly analyzed under the Fourteenth Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 n. 16, 99 S. Ct. 1861, 1873 (1979) (finding that the Fourteenth Amendment Due Process Clause applies to pretrial detainees and the Eighth Amendment applies to prisoners); Andujar v. Rodriguez, 2007 U.S. App. LEXIS 6089, *7 n. 3 (11th Cir. 2007). Accordingly, defendants' motion for summary judgment on plaintiff's Eighth Amendment claim for denial of adequate medical care is GRANTED.
Regardless of whether analyzing plaintiff's claim for denial of adequate medical care under the Eighth or the Fourteenth Amendment, the court notes that the standard to determine a constitutional violation is the same under both amendments. Hamm v. DeKalb County, 774 F.2d 1567, 1574 (11th Cir. 1985). The standard used to determine whether denial of medical care is a constitutional violation is that of deliberate indifference.Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291 (1976). "Medical treatment that is so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness violates the eighth amendment." Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir. 1986) (citation omitted).
Plaintiff's Fourteenth Amendment Claim Against the City of Atlanta
The City of Atlanta may only be held liable for an alleged violation of plaintiff's constitutional rights if it "had a custom or policy that constituted deliberate indifference to [a] constitutional right," which custom or policy "caused the violation." McDowell v. Brown, 392 F.3d 1283, 1286-87, 1289-93 (11th Cir. 2004). In the present case, plaintiff's response to defendants' motion for summary judgment focuses on plaintiff's denial of saline rinse, Boost, and Vicodin for his pain. Plaintiff contends that the City of Atlanta has a policy prohibiting the administration of narcotic drugs. (Tabb Dep II's Exhibit 6, p. 13). Plaintiff also alleges he was not given soft food to eat and was denied Boost and reasonable dosages of pain medication.
Out of all of plaintiff's allegations, the court determines that plaintiff fails to provide any evidence to support a finding that the City of Atlanta had a policy or custom of denying detainees saline rinse, Boost, or soft foods. Plaintiff provides no evidence of a written policy adopting such a stance by the City of Atlanta. In addition, while plaintiff may not have received Boost or saline rinse during his time at the jail, that is not sufficient to establish the "widespread practice" necessary to support a custom or practice. See Praprotnik, 485 U.S. at 127, 108 S. Ct. at 926. The only policy plaintiff alleges that the City of Atlanta maintains is one denying narcotics to detainees and prisoners. The City's policy, however, does not deny detainees and prisoners the right to obtain non-narcotic drugs, and thus the policy of denying prisoners narcotic pain medication does not violate "evolving standards of decency" as to amount to deliberate indifference. Estelle, 429 U.S. at 106, 97 S. Ct. at 292. Accordingly, the City of Atlanta and defendant officers', in their official capacities, motion for summary judgment is GRANTED on this claim.
Plaintiff's Fourteenth Amendment Claim Against Officer Veazey in his Individual Capacity
Plaintiffs' complaint asserts his claim of failure to provide adequate medical care against all defendant police officers in their individual capacities. Defendants' motion solely moves for summary judgment on the claim against Officer Veazey in his individual capacity, arguing that plaintiff's allegations implicate the inactions of defendants John Doe 1 through 3 and not Officer Veazey. Defendants further state that there is no evidence or allegation that Officer Veazey was one of the jailers during plaintiff's time in jail or that he was present, and thus the allegations in the complaint are insufficient to state a claim against Officer Veazey. The court finds plaintiff abandoned his claims against Officer Veazey as plaintiff's response to defendants' motion for summary judgment does not address Officer Veazey's motion for summary judgment on plaintiff's Fourteenth Amendment medical care claim. Accordingly, the court GRANTS Officer Veazey's motion for summary judgment, in his individual capacity, on this issue.
Plaintiff's State Law Claims
Plaintiff's complaint alleges a violation of his rights to due process of law under Article I, Section I, Paragraph I and XII of the Georgia Constitution, a claim for intentional and willful infliction of pain and emotional distress, a claim for assault and battery, and a violation of the Georgia Tort Claims Act in that the actions of defendants constitute an abuse of an incarcerated person. Plaintiff alleges these claims against all defendants in their official capacities, and also against Officer Veazey in his individual capacity.
In response to plaintiff's state law claims, defendants contend that they are entitled to summary judgment because the City of Atlanta is entitled to sovereign immunity and Officer Veazey is entitled to official immunity in his individual capacity. The court will analyze plaintiff's state law claims against the defendants in their official capacity as a suit against the City of Atlanta. See Stone v. Taylor, 233 Ga. App. 886, 887-88 (1998) ("Sovereign immunity is the immunity provided to governmental entities and public employees sued in their official capacities.").
The concept of sovereign immunity is set forth by statute in the State of Georgia. O.C.G.A. § 36-33-1 states: "it is the public policy of the State of Georgia that there is no waiver of the sovereign immunity of municipal corporations of the state and such municipal corporations shall be immune from liability for damages." O.C.G.A. § 36-33-1(a). The statute further states that "[m]unicipal corporations shall not be liable for failure to perform or for errors in performing their legislative or judicial powers. For neglect to perform or improper or unskillful performance of their ministerial duties, they shall be liable." O.C.G.A. § 36-33-(b). The Georgia Code specifically exempts municipal corporations from liability "for the torts of policemen or other officers engaged in the discharge of the duties imposed on them by law." O.C.G.A. § 36-3-33. Absent a waiver of immunity, a city may not be found liable for the negligent acts of a police officer. Williams v. Solomon, 242 Ga. App. 807, 810 (2000).
Plaintiff's response to defendant's motion for summary judgment fails to respond in any form to defendants' argument that the City of Atlanta is entitled to sovereign immunity on plaintiff's state law claims. The court is unaware of any express waiver by the City of Atlanta of its sovereign immunity, through the purchase of liability insurance, or by the Georgia Legislature that would apply to plaintiff's claims, nor has plaintiff cited any in his brief. While the City of Atlanta may be held liable for negligently performing a ministerial duty, plaintiff makes no such allegation and fails to provide any evidence to support such a claim. Accordingly the court GRANTS defendants' motion for summary judgment as to the City of Atlanta and the defendants in their official capacities on plaintiff's state law claims.
Turning to plaintiff's state law claims against Officer Veazey in his individual capacity, defendants assert that plaintiff's claims are barred by Officer Veazey's entitlement to official immunity. The Georgia Constitution provides:
Except as specifically provided by the General Assembly in a State Tort Claims Act, all officers and employees of the State or its departments and agencies may be subject to suit and may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions and may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions.
Art. I, Sec. II, Par. IX(d). Accordingly, public employees are only subject to suit "when they negligently perform or fail to perform their `ministerial functions' or when they act with actual malice or intent to cause injury in the performance of their `official functions.'" Gilbert v. Richardson, 264 Ga. 744, 753 (1994). "Official functions" have been defined by the Georgia Supreme Court to encompass both ministerial and discretionary acts. Id. Plaintiff asserts that Officer Veazey's act of hitting plaintiff in the face with the butt of Officer Veazey's gun was malicious and done with the intent to injure plaintiff.
In interpreting the phrase "actual malice," the Georgia Supreme Court found that the term denotes "express malice or malice in fact." Merrow v. Hawkins, 266 Ga. 390, 392 (1996). Black's Law Dictionary defines "express malice" as "[t]he intent to kill or seriously injure arising from a deliberate, rational mind."Phillips v. Hanse, 281 Ga. 133, 135 (2006) (quoting Black's Law Dictionary, 7th ed. 1999). The Court in Merrow found that "actual malice" is something more than implied malice, which has been defined "to mean conduct exhibiting a `reckless disregard for human life.'" 266 Ga. at 392 (citations omitted). The Court further found that "`actual malice' requires a deliberate intention to do wrong." Phillips, 281 Ga. at 135 (citing Merrow, 266 Ga. at 391). To prove actual malice, a plaintiff must do more than show that the defendant acted with ill will towards the plaintiff; rather, the plaintiff must show that the defendant acted with a deliberate intent to commit a wrongful act. Adams v. Hazelwood, 271 Ga. 414, 415 (1999).
The Georgia Supreme Court has defined the phrase "actual intent to cause injury" to mean "an actual intent to cause harm to the plaintiff, not merely an intent to do the act purportedly resulting in the claimed injury. This definition of intent contains aspects of malice, perhaps a wicked or evil motive."Kidd v. Coates, 271 Ga. 33, 33 (1999) (citations and punctuation omitted). "Under this definition, an officer who, in the performance of his official duties, shoots another in self-defense is shielded from tort liability under the doctrine of official immunity." Id. at 34. The court in Kidd found, however, that if an officer uses force intentionally and without justification that "they acted solely with the tortious `actual intent to cause injury.'" Id. Plaintiff has presented sufficient evidence to create a question of fact as to whether Officer Veazey acted with actual malice. Officer Veazey's claim of official immunity against plaintiff's state law claims cannot be determined at the summary judgment stage. Accordingly, the court DENIES Officer Veazey's motion for summary judgment, in his individual capacity, on plaintiff's state law claims.
Summary
Defendants Mark A. Veazey, John Doe 1, John Doe 2, John Doe 3, and the City of Atlanta, Georgia's motion for summary judgment [docket no. 18] is GRANTED in part and DENIED in part. The City of Atlanta's motion for summary judgment is GRANTED on all of plaintiff's claims. Officer Veazey's motion for summary judgment, in his individual capacity, is GRANTED on plaintiff's claim for unlawful seizure under the Fourth Amendment, plaintiff's claims for unlawful seizure and excessive force under the Fourteenth Amendment, plaintiff's Eighth and Fourteenth Amendment claims for failure to provide adequate medical care. Officer Veazey's motion for summary judgment, in his individual capacity, is DENIED on plaintiff's claim under the Fourth Amendment for excessive force and on all plaintiff's state law claims.