MEMORANDUM OF LAW

TO: Judge Jones FROM: Patrick Sutton DATE: Monday, August 7, 2005 RE: Lee v. Burke, Edwards, and Stapleton, SU-04-CV-1409-J, Defendants Burke and Edwards Motion for Summary Judgment. _______________________________________________________________________________
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Questions Presented 1. DEFENDANTS BURKE AND EDWARDS MAY NOT BE LIABLE IN A 42 U.S.C. §1983 RESPONDEAT SUPERIOR OR SUPERVISORY LIABILITY CLAIM. 2. DEFENDANTS BURKE AND EDWARDS MAY NOT BE LIABLE IN A 42 U.S.C. §1983 CLAIM. 3. DEFENDANTS BURKE AND EDWARDS MAY NOT BE LIABLE IN THEIR OFFICIAL CAPACITY FROM PLAINTIFF SMITH’S STATE LAW CLAIM UNDER THE DOCTRINE OF SOVEREIGN IMMUNITY. 4. DEFENDANTS BURKE AND EDWARDS MAY NOT BE ENTITLED TO QUALIFIED IMMUNITY IN PLAINTIFF SMITH’S STATE LAW CLAIMS. 5. PLAINTIFF MAY NOT PREVAIL ON A GENERAL RESPONDEAT SUPERIOR STATE TORT CLAIM. 6. PLAINTIFF MAY NOT PREVAIL ON A GENERAL NEGLIGENCE CLAIM AS A CRIMINAL ACT BY A THIRD PARTY ABSOLVES A DEFENDANT WHO MAY HAVE OTHERWISE BEEN LIABLE. 7. PLAINTIFF MAY NOT PREVAIL ON A 8TH AMENDMENT CLAIM OF CRUEL AND UNUSUAL PUNISHMENT.

8. PERSONAL RECOMMENDATIONS

Statement of Facts On June 4, 2004, officers removed Plaintiff Lee D. Smith from his cell in Athens-Clarke County Jail because he got into a fight with another inmate, Charles Williams. Smith had property in the cell and asked officers to retrieve it, but the property was never recovered. Smith alleges when he complained about his property, Officer Walker and Officer Dorsey stopped Smith in the hallway and assaulted him. Smith alleges that Dorsey grabbed Smith around the neck while officer Walker grabbed Smith by the lower arm by the cuffs and pushed him into the wall, which caused Smith to hit his elbow on the wall. Smith further alleges both officers picked him up by the same injured arm and his neck and pushed Smith up against the wall to the ceiling. Smith was then taken to booking and placed into a cell. Smith requested to go to the nurse to Lieutenant Winfield where pictures were taken of Smith’s neck and arm. About thirty minutes later, Officer Stapleton told Smith to move to the CC. Smith complained his arm was still hurting and Smith claims Officer Stapleton told Smith “to get his ass up.” When Smith did not move, Smith alleges Stapleton hit Smith across the jaw with his fist at which time Sergeant Harper stopped Stapleton from hitting Smith again. Smith claims that cameras in the jail should have recorded the initial alleged assault. On June 23, 2004, Smith filled out an Inmate Form for Civil Action that was notarized. On July 9, 2004, Judge Jones ordered Smith to be allowed to proceed in his complaint in Forma Pauperis. On July 12, 2004, the Inmate Form was filed with the Athens–Clarke County Superior Court claiming Captain A. Burke, Sheriff Ira Edwards, Lieutenant Winfield, and Deputies Chris Stapleton, Walker, and Dorsey as defendants. Smith is suing for one million dollars from each defendant for actual damages, one million dollars from each defendant for punitive damages, and one million dollars from each defendant for pain and suffering. As of this date, July 13, 2005,

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§1983 claims. Defendants deny any personal knowledge of any of the matters Smith complains.S. Because Plaintiff has not fully articulated his legal claims.C. 2002. nor issued direct orders pertaining to the alleged incidents. Defendants Burke and Edwards filed a motion for summary judgment claiming that there are no genuine issues as to any material fact and that the undisputed facts preclude Burke and Edwards from liability. and Dorsey have not been served of Smith’s civil lawsuit. Defendants claim that neither Burke nor Edwards have had any contact with Smith. Defendants concede. the Defendants raise many potential legal issues that could have been raised if Smith had raised specific legal claims. 2005. the deputies’ actions would have violated the Response to Resistance/ Aggression policy of the sheriff’s department and the jail. Walker. On May 31. including a Response to Resistance/Aggression policy (“Policy”) that governs the conduct of deputy sheriffs and other employees of the sheriff’s department on January 9. neither was present during the alleged incidents. if the facts Plaintiff Smith complains of are true. 3 . that Edwards and Burke have no supervisory liability under §1983. Burke is the commander of the jail and Sheriff Edwards issued certain policies and procedures. Neither party requested oral argument at this time. Defendants also deny any notice of any kind that any of the officers mentioned by Smith would engage in any behavior about which Smith complains. that Edwards and Burke are entitled to qualified immunity on any §1983 claims. and that the individual defendants enjoy official immunity from liability on Plaintiff’s state law claims. Stapleton.Winfield. Defendants believe that Smith has failed to allege anything that the Defendants may have done to harm Smith. that Plaintiff’s state law claims against Edwards in his official capacity are barred by the doctrine of sovereign immunity. Defendants argue that Edwards is precluded from liability from any 42 U.

City of Atlanta Police Department. 491 (1991).A. Supchak v. Haskins. or immunity protected by the United States Constitution or the laws of the United States. 273 Ga. Inc. 232 Ga. Means v.. or pointing out an absence of evidence to support at least one essential element of nonmoving party’s case. performed under color of state law.” O. but must point to specific evidence that gives rise to a triable issue of fact. 261 Ga. affirmatively disproving at least one essential element of nonmoving party’s case. 682(1). If the defendant does so.C. depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least on essential element of plaintiff’s claim. the “plaintiff cannot rest on his pleadings. warrant judgment as a matter of law. a plaintiff must demonstrate the existence of genuine issues of material fact showing that the defendant’s acts or omissions. resulted in a deprivation of a right.” 42 U. (1998). 266 Ga. Pruitt. Caven v. 706 (1993). privilege. at 491. 4 . We view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant.G.C. 700 (2003). 680. “A defendant may do this by showing the court that the documents.C. Warehouse Home Furnishings Distr.S. 209 Ga.S... but may prevail simply by pointing to the lack of evidence.” Lau’s Corporation. App. Roberts Timber Co.Discussion To prevail in a summary judgment motion. App. affidavits. The defendant does not need to affirmatively disprove the plaintiff's case. There are two methods a defendant may move for summary judgment. App. Lau’s Corporation.” Upshaw v. 135 (2004). the “moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts. §9-11-56(c). Inc. “To survive summary judgment in a §1983 action. v. 42 U. viewed in the light most favorable to the nonmoving party.. App. §1983 claims have a more specific requirement in a motion for summary judgment. §1983 (1996). 261 Ga.

a statute designed to make effective the remedies created in §1983 and similar statutes.S. 436 U. a local government would be suable in its own name. A lawsuit against a county employee in his/her official capacity is a lawsuit against the government entity. School Bd.1. supra.” Monell. Graham. as here.S. Plaintiff’s lawsuit against Defendants is a lawsuit against Athens-Clarke County and the County is considered a person who may be subjected to liability in this lawsuit. In a decision three years later. suggests that fee liability. the Supreme Court held “that a municipality cannot be held liable [for violation of civil rights] solely because employee is a tort-feasor--or. in other words. a municipality cannot be held liable under §1983 on a respondeat superior theory. §1983 RESPONDEAT SUPERIOR OR SUPERVISORY LIABILITY CLAIM. 5 . §36-33-3. DEFENDANTS BURKE AND EDWARDS MAY NOT BE LIABLE IN A 42 U. 159. it must be determined when a municipality may be liable.S. was intended to be imposed on a respondeat superior basis.C. Establishing a municipality may be sued under §1983. Thus.3d 962. at 691. 690 (1978) [hereinafter Monell]. “Congress did intend municipalities and other local government units to be included among those “persons” to whom §1983 applies. Dep’t of Social Services of the City of New York. at 694. of Miami-Dade County.” Monell. 658.” Monell v. The Court concluded that a “local government may not be sued under §1983 for an injury inflicted solely by its employees or agents.S. unlike merits liability.” Kentucky v. 168 (1985). at 690.A. 2002) (holding a local government may not be sued under §1983 for an injury inflicted solely by its employees or agents). necessarily decides that local government officials sued in their official capacities are “persons” under §1983 in those cases in which.G.” Monell. 436 U. 285 F. “Nothing in the history of §1988. supra. Georgia holds a similar standard codified under O. Florida. 473 U. The Supreme Court has held that “local governments can be sued under §1983. The Court reasoned.C. Cuesta v. 966 (11th Cir.

C. 671 (11th Cir.” Hartley.A. 1991). In the present action.3d 1263.” O. In addition.S. supervisory officials are not liable under §1983 “for the unconstitutional acts of their subordinates ‘on the basis of respondeat superior or vicarious liability. However. Defendants claim they did not personally participate in the removal of 6 .” Id. 1. 3 (1984).’” Hartley v. 1495 (11th Cir.” Hartley. 802 F. see Rivas v. 1269 (11th Cir. §36-33-3 (2005).2d 1491. rampant and of continued duration. The causal connection may be established and supervisory liability imposed where the supervisor’s improper “custom or policy…results in deliberate indifference to constitutional rights. 1999). 906 F. 193 F. 1990).3d 1390.C. 9 (1990).Under the Official Code of Georgia Annotated. quoting Belcher v. solely under a 42 U. quoting Brown v. to sufficiently notify the supervising official.3d at 1269. the supervisor may be found liable if either the supervisor “personally participates in the alleged constitutional violation or when there is a causal connection between actions of the supervising official and the alleged constitutional deprivation. the deprivations that constitute widespread abuse “must be obvious. 42 U. and he fails to do so. City of Cave Springs v. 1994).2d 397 (11th Cir.S.G. 252 Ga. §1983 respondeat superior claim. at 1269.2d 667. and in effect Athens-Clarke County. In addition.3d at 1269. §1983 (1996). §2. Mason. 193 F. However. when a “history of widespread abuse puts a responsible supervisor on notice of the need to correct the alleged deprivation. 193 F. at 1269. 30 F. Thus. “civil rights statutes imposing liability for deprivation of constitutional rights by a defendant acting under color of state law or custom is not [a] federally imposed doctrine of respondeat superior. Freeman. quoting Zatler v. rather than isolated occurrences. Parnell.C. Crawford. 1986). Wainwright. 1396 (11th Cir. 940 F. Plaintiff Smith may not sue Defendants Burke and Edwards. Par. Art. City of Foley. and [a] municipality may not be held liable thereunder solely on negligence or respondeat superior theories. flagrant.” Hartley. Const. can establish a causal connection.

Motion at 1. The issue turns on whether Plaintiff’s assertion that 7 .” Pl. It is undisputed that the Policy in itself does not violate Plaintiff’s constitutional rights.” Hartley.” Def. Brief at 6. Def. Plaintiff argues in his Motion to Deny Summary Judgment that Burke is the “immediate supervisor and should know what is going on. Motion at 2. It is undisputed that neither Defendant personally participated in either alleged assault on Plaintiff. Defendants deny they had any notice or indication of any kind that any of the officers mentioned in Smith’s complaint would engage in any behavior Smith complains. Plaintiff complains in the Athens-Clarke County Jail there is a history of widespread abuse that should have put Defendants on notice that they need to correct alleged deprivations. the deprivations that constitute widespread abuse must be “flagrant. at 6. It is the alleged violation of the Policy that Plaintiff complains. 4. However. at 1269. at 1269. According to the Eleventh Circuit Court of Appeals. the official Policy itself is not indifferent to Plaintiff’s rights.” Id. Exhibit C. Pl. para. “such would not represent the execution of government policy or decision but rather a direct violation of the response to Resistance/Aggression policy approved by Sheriff Edwards. Therefore. Brief. Def. rampant and of continued duration. for Defendants to be sufficiently notified. In addition. rather than isolated occurrences. However. Defendants argue that even if Smith’s constitutional rights were violated. Plaintiff argues that “several other inmates also complain about officers[sic] abuse and nothing was [done] by Captain Burke or Sheriff Edwards. Plaintiff believes that “someone should be accountable for the action of their employees. Motion at 2. 8. Plaintiff does not deny that Defendants Burke and Edwards did not participate in any of the alleged assaults.Plaintiff Smith from his cell or participate in either of the alleged assaults on Smith. failure to do so “can establish a causal connection.” Pl. para. Defendants argue that there is no causal connection between the government and any violation of Smith’s constitutional rights.

prior to the alleged assault on Plaintiff. ordinance. Therefore. this Court finds that Defendants Burke and Edwards are not liable under a 42 U.C. Bd. §1983 CLAIM. were ever on notice that their employees may have been violating the Policy and that Defendants needed to correct any officers’ behaviors that violated the Policy. A municipal body that is sued under the Civil Rights Act of 1871 is not entitled to an absolute immunity.C. 8 . of Miami-Dade County. such as other prisoner’s affidavits that amounts to sworn testimony that supports widespread abuse of prisoners over a continued duration. Local government bodies may be “liable under §1983 when execution of a government’s policy or custom. DEFENDANTS BURKE AND EDWARDS MAY NOT BE LIABLE IN A 42 U. at 694. 2. as here. whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy. 285 F.S.” Upshaw. 966 (11th Cir.” Id.” Cuesta v. can be sued directly under §1983 for monetary.C. the action that is alleged to be unconstitutional implements or executes a policy statement. at 135.S. inflicts the injury. 2002) [hereinafter Cuesta]. at 701. citing Monell. This is insufficient. A plaintiff may not rest upon his pleadings but “must point to specific evidence that gives rise to a triable issue of fact. claim. App. Monell.3d 962. Plaintiff has not demonstrated that either Defendant. at 690-91. “Local governing bodies. Thus. 266 Ga. or decision officially adopted and promulgated by that body’s officers. or injunctive relief where. for Plaintiff to prevail under a 42 U. regulation. supra. Plaintiff offers no other evidence other than his own sworn testimony to support his claim. Florida.S.“several other inmates also complain” constitutes a “continued duration” or “isolated occurrences. Plaintiff must show that the Policy itself inflicted the injury and not by the alleged negligent or indifferent acts or omissions of Defendants. therefore.” Plaintiff does not submit any evidence. declaratory. supra. Sch. §1983 claim of respondeat superior or supervisory liability.

quoting City of St. 472 (6th Cir. 877 F.S. ordinance. 1991). (emphasis added). or other proper proceeding for redress . 923 F. custom. shall subject. Monell. see Bd. “Congress included customs and usages [in §1983] because of the 9 . . Praprotnik.2d 469. ordinance. 1482 (11th Cir. In addition. regulation. Louis v. In a §1983 action. or usage of any State. 397. supra. then the plaintiff’s claim “must fail as a matter of law. any such law. regulation. see also Edwards v. Brown. at 670. .3d at 966. supra. any person . the plaintiff “bears the burden of persuasion of every element. supra. 572 (3d Cir.A plaintiff can establish §1983 liability by identifying that he has been deprived of constitutional rights by either an express policy or a “widespread practice that. supra.S. although not authorized by written law or express municipal policy. 285 F. statute. is so permanent and well settled as to constitute a custom and usage with the force of law. see Miller v. supra. see also Brown v. 123 (1988). at 970-71. 528 U. or immunities secured by the Constitution of the United States. suit in equity. statute. 404 (1997). at 692. If plaintiff fails to produce any evidence indicating an allegation. of the County Comm’rs v. or cause to be subjected. Philadelphia. Taylor. to the deprivation of any rights. "causes" an employee to violate another's constitutional rights. 1989) (holding plaintiff in 1983 action excessive force action had burden of proving that force was excessive). custom. . 485 U.” Cuesta. 112. at 691-92. 1988) (finding prisoner alleging 8th Amendment violation bore burden of proving every element. at 967. City of Fort Lauderdale. privileges.2d 1474.2d 568. the Court believed that a plaintiff “must demonstrate a causal link between the municipal action and the deprivation of federal rights. 13. be liable to the party injured in any action at law. under color of some official policy.” Cuesta. the Court reasoned that the italicized language plainly imposes liability on a government that. We begin with the language of §1983 as originally passed: "[A]ny person who. under color of any law. . including that the guard acted without justification). Monell. .” Cuesta.” Cuesta. 860 F. shall." 17 Stat. In Monell. or usage of the State to the contrary notwithstanding.

and its origin. at 694. Tuttle. at 824. 737 F. Gilmore v. 1984). Cuesta. must be separately proved. such practices of state officials could well be so permanent and well settled as to constitute a ‘custom or usage’ with the force of law. inflicts the injury that the government as an entity is responsible under §1983. Bell v. But where the “policy relied upon is not itself unconstitutional. It is not sufficient for a government body’s policy to be tangentially related to a constitutional deprivation. whether made by lawmakers or by those whose edicts or acts may fairly be said to represent official policy. 471 US 801. unless proof of the incident includes proof that it was caused by an existing. 823-24 (1985). considerably more proof than the single incident will be necessary in every case to establish both the requisite fault on the part of the municipality and the causal connection between the ‘policy’ and the constitutional deprivation. City of Albany.’" Id. at 691. Tuttle. at 824(8). Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell. 901 (11th Cir. City of Atlanta. Otherwise the existence of the unconstitutional policy. 10 . App. Therefore. 219 Ga. at 821.” Id.persistent and widespread discriminatory practices of state officials…although not authorized by written law.” Id. When execution of a government’s policy or custom. unconstitutional municipal policy. To compel liability under those situations “would be to impose it simply because the municipality hired one ‘bad apple. at 967. the “official policy or custom must be the moving force of the constitutional violation in order to establish liability of a government body under §1983.” Id.. A municipal "policy" that might lead to "police misconduct" is hardly sufficient to satisfy Monell's requirement that the particular policy be the "moving force" behind a constitutional violation.S. at 824. which policy can be attributed to a municipal policymaker. at 821. supra.” Id. Id. Ga. 471 U.2d 894. The discussion of the origins of Monell's "policy or custom" requirement was “intended to prevent the imposition of municipal liability under circumstances where no wrong could be ascribed to municipal decision-makers.” Id. City of Oklahoma v.. at 967. 371 (1993).

Georgia courts have held a similar standard to find a municipal liable for policies enacted by its officers. 2d 1372 (M. Ga.” Def. at 373. which governs the conduct of deputy sheriffs and other employees of the sheriff’s department. “there is not a shred of evidence in this record which tends to show any ‘custom’. 210 Ga. see Dupree v. Therefore. defendants argue there is “no causal connection between the government and any violation of Plaintiff’s rights. Brief at 6-7.” Def. Motion at 2. it remains Plaintiff’s contention that “several other inmates also complain about officers abuse and nothing was [done] by [Defendants] Captain Burke or [by] Sheriff Edwards.S. In the present action. However. Plaintiff concedes that Sheriff Edwards did issue “policies and procedures to govern the conduct of deputy sheriffs and other employees of the sheriff department.” Bell. but municipal liability may not be imposed pursuant to 42 U. Defendants conclude. or a single implementation of a municipal policy or custom by a municipal employee.” Pl.” Def.D.” Pl. Brief at 6. Thomas County. Motion 11 .C. 1998) (holding a Georgia sheriff’s department and county were immune from suit for “alleged use of excessive force absent evidence of any policy or practice which resulted in plaintiff's harm”). “In some instances a single decision by municipal policymakers. Defendants argue the government policy “can be derived through consideration of the Response to Resistance/Aggression policy approved by Sheriff Edwards. App. which led to the alleged violation of Plaintiff’s constitutional rights. §1983 for a single incident of unconstitutional conduct by a municipal employee without proof that the conduct taken pursuant to a municipal policy or custom. such a violation “would not represent the execution of government policy or decision but rather a direct violation of the Response to Resistance/Aggression policy approved by Sheriff Edwards in January 2002. Defendants further contend even if Plaintiff Smith’s constitutional rights were violated. Supp. may be sufficient to establish that a municipal policy or custom caused the alleged deprivation. 46 F. Brief at 5-6.

” Id. Plaintiff does not argue whether or not the official Response to Resistance/Aggression violates his constitutional rights. The record is not without a shred of evidence that demonstrates the official Policy may not have been followed. than the “government as an entity is responsible under §1983. paras. Scheib. Defendants have to concede that the assaults occurred and that there may be another policy being followed by officers and supervisors rather than the official Policy that Sheriff Edwards implemented in 2002. If Defendants’ other policy represents official policy and inflicts the injury. Pl. G (3)(b). at 691. (3)(d).at 2. paras. Further. It is possible that the Athens-Clarke County Jail has another policy that was and may be in place that may have violated Plaintiff’s constitutional rights. Brooks v. Civil Action Form at 4-5. would create a genuine issue of material fact as to how many times these assaults have occurred and to whom or which policy was the actual policy officers in the Athens-County Jail were implementing. In order to be granted a motion for summary judgment. supra. supra. Exhibit B(1) at 9-10. at 694. Defendants have not submitted any evidence that a supplemental report was filled out as required by 12 . Not to do so. Motion at 2. (3)(e). 1987). for if a municipality tacitly authorizes actions or displays deliberate indifference towards police misconduct a municipality can be held liable under §1983.2d 1191 (11th Cir.11-12. 813 F. but that the customs and practices that are actually occurring by officers and supervisors in Athens-Clarke County Jail violated his constitutional rights. The other policy “could well be so permanent and well settled as to constitute a ‘custom or usage’ with the force of law. Civil Action Form at 3. Cuesta. The other policy “must be the moving force” behind Plaintiff’s constitutional deprivation. and Pl. a municipality's failure to correct constitutionally offensive actions of its police department may rise to level of custom or policy. Def. Defendants have not submitted any evidence of a filled-out Response to Resistance/Aggression Report as required by the official Policy. at 967. paras. and Pl. 17-18.” Monell.

at 821. para. 3. The alleged attacks on Plaintiff and the subsequent administrative response to the attack can be considered as single event. Soloman. or a couple. Def.G. as discussed earlier. that that policy is attributed to Defendants. Plaintiff has not shown. However.A. It is the latter component that Plaintiff fails to establish to find Defendants liable under a §1983 claim." Monell. unless proof of the incident includes proof that it was caused by an existing.C. para. supra. Tuttle. DEFENDANTS BURKE AND EDWARDS MAY NOT BE LIABLE IN THEIR OFFICIAL CAPACITY FROM PLAINTIFF SMITH’S STATE LAW CLAIM UNDER THE DOCTRINE OF SOVEREIGN IMMUNITY. To impose liability under those circumstances would be to impose it simply because the municipality hired one "bad apple. Exhibit B(1) at 11.the official Policy. Defendants did not even respond to Plaintiff’s assertion that he attempted to contact Defendants and was ignored. 3. at 823-24 (1985). paras. §36-33-3 (2005). even if another policy is being implemented. Exhibit B(1) at 10-11. 242 Ga. Williams v. 13 . there can be no municipal liability for a claim based on allegedly reckless conduct by police. In the absence of some waiver of immunity afforded a city for torts committed by its police officers while engaged in their official duties. a single incident of unconstitutional activity is not sufficient to impose liability under Monell. Plaintiff offers no evidence other than a bare assertion that links the other policy as being authorized or implemented by Defendants. There is sufficient enough evidence to demonstrate that in this single incident the official Policy may not have been followed. Def. unconstitutional municipal policy and the policy can be attributed to a municipal policymaker. Plaintiff’s unsupported claim of other prisoners’ abuse is insufficient to demonstrate multiple events of abuse. O. Motion at 1.S. H. Pl. G (4)(a)-(g). 471 U. Defendants have not submitted any evidence that there was an administrative review as required by the official Policy.

264 Ga. 274 Ga. or that Athens-Clarke County waived its sovereign immunity for acts committed by its officers in their performance of an official duty. officers and employees of the state or its departments and agencies shall not be subject to suit or liability. is any act performed within an officer's or employee's scope of authority. aff’d. but does not shield acts that are ministerial and performed negligently. 406 (2000). 807 (2000).App. (e) Except as specifically provided in this Paragraph. are done in the course of official duty. 607. including both ministerial and discretionary acts. 744. Adams. 14 . Official functions performed by officer or public employee. § 2. Defendants acted with actual malice toward Plaintiff in their performance of a discretionary duty. The provisions of this subparagraph shall not be waived. 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. 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. ¶ IX. Hazelwood v. for the performance or nonperformance of their official functions. Richardson. 608-09 (1998) rev’d on other grounds. 235 Ga. 244 Ga. The defense of "official immunity" applies to government officials and employees sued in their official capacities while shielding acts of government officials and employees that are discretionary. 404. Thus. for which official immunity applies in absence of actual malice or intent to cause injury. and are performed without willfulness or actual malice. and no judgment shall be entered against them. § 2. Gilbert v. Georgia Constitution Article 1. Plaintiff must show that Defendants acted negligently in their performance of a ministerial duty. 753 (1994). Ratified November 6. certiorari granted. The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver. App.App. 1990. ¶ IX for initial guidance: (d) Except as specifically provided by the General Assembly in a State Tort Claims Act. sovereign immunity extends to the state and all of its departments and agencies. Todd v. for Plaintiff to overcome Defendants’ official immunity defense. 122 (2001). We look to the Georgia Constitution Article 1. or negligent failure to perform. Except as provided in this subparagraph. Kelly.

” Woodward v. 309.” Harper v. 311 (2000). 265 Ga. Wanless.” Middlebrooks. Plaintiff has to demonstrate both that Defendants were performing a 15 . App. calls for the “exercise of personal deliberation and judgment. and definite. for purposes of determining whether employee is immune from suit. is “commonly one that is simple. absolute. a public officer or employee may be personally liable only for ministerial acts negligently performed or discretionary acts performed with malice or with an intent to injure. at 385-86. 437. “turns upon the facts of each case. 882 (2000). 270 Ga. for purposes of determining whether official immunity applies. 404. for which a public official may not claim immunity. App. Therefore. 440 (2004). see also Wanless v.The test is a “[s]uit against a public officer acting in his or her official capacity will be barred by official immunity unless the public officer (1) negligently performed a ministerial duty. 244 Ga. App. Patterson. The execution of a specific task is ministerial even though the manner in which it is accomplished is left to the public employee's discretion. 261 Ga. Bibb County. for purposes of determining whether official is immune from suit. the acts of following established policies of inspecting and monitoring are ministerial tasks. 261 Ga. App. App. and acting on them in a way not specifically directed. and requiring merely the execution of a specific duty” while a discretionary act. definite and certain as merely to require the execution of a relatively simple. Laurens County. arising under conditions admitted or proved to exist. Middlebrooks v. 242 Ga. Phillip v. Walls. A ministerial act. 407 (1995). at 884. 385 (2003). Tatum. Procedures or instructions adequate to cause an act to become merely ministerial must be so clear. App. App. for which a public official may not claim immunity. reaching reasoned conclusions. While the act of establishing a policy in the first place is discretionary. at 385. Thus. 261 Ga. 244 Ga. A determination of whether a public official's acts are ministerial or discretionary. which in turn entails examining the facts. specific duty. Middlebrooks. 382. or (2) acted with actual malice or an actual intent to cause injury while performing a discretionary duty.

621(1) (1992) (training and supervision of police officers by superiors). App. Public officials are immune from damages that “result from their performance of discretionary functions. The Georgia Court of Appeals has consistently held that “the operation of a police department. App. actual malice means a deliberate intention to do a wrongful act. at 753.” Merrow v.App. 191 (2003). reaching reasoned conclusions. 242 Ga.” Harvey v. unless those functions were undertaken with malice or intent to cause injury. 391 (1996)." for purposes of official immunity. 244 Ga. App. at 311. 526-27(2) (1997) (prison official supervising convicts). of Corrections. 264 Ga. 273 (1998).ministerial duty and that Defendants performed this ministerial duty negligently.” Gilbert. 271. App. see also McDay v. 233 Ga. for immunity purposes. and such act may be accomplished with or without ill will and whether or not injury was intended. Nichols.” Department of Corrections v. both Defendants will be entitled to official immunity. which in turn entails examining the facts. 524. Actual malice requires a “deliberate intention to do wrong in context of official immunity and excludes any liability for injuries and damages if officers and employees act with implied malice in performance of their official functions. Dept. at 406. is a discretionary governmental function of the county as opposed to a ministerial. unless Plaintiff can show that Defendants acted towards Plaintiff while Defendants performed a discretionary duty. 266 Ga. 260 Ga. 390. A "discretionary act. 187. unless Plaintiff can demonstrate that Defendants acted with actual malice toward Plaintiff.” Phillip. Hawkins. Therefore. 226 Ga. and acting on them in a way not specifically directed.” Todd. In the context of official immunity. proprietary. calls for the “exercise of personal deliberation and judgment. App. “One who supervises or monitors another exercises discretion in so doing. 16 . City of Atlanta. including the degree of training and supervision to be provided its officers. see also Bontwell v. Lamaine. or administratively routine function. 204 Ga. Official immunity extends to “negligent performance of public employee or officer's discretionary acts.

O. Defendants argue that Plaintiff Smith has “not specified any ministerial duties which Sheriff Edwards or Captain Burke has allegedly violated. furthermore.A. §33-24-51. Art. its supervision. 33. ill will must also be combined with an intent to do something wrong or illegal. O. this definition contains aspects of malice.” Hazelwood. While ill will may be an element of actual malice in many factual situations. Hazelwood.” Def. rather. Defendants argue that Smith “has not and cannot cite any act of the General Assembly which specifically provides that sovereign immunity is waived and the extent of the waived circumstances 17 . Lang. 9. 189 Ga.C. "actual intent to cause injury" means an “actual intent to cause harm to the plaintiff. §§33-24-51. For purposes of a claim of official immunity. 2005 WL 418790 (2005). However. except to extent of insurance purchased or city is self-insured. Brief at 13. Sovereign immunity of municipalities has not been waived. Brief at 14-15. In the instant case. 271 Ga. §2. 271 Ga. 36-33-3. Brief at 14.” Delong v. municipal corporations may be liable for a city employee's negligence in performing his or her job to the extent the city has waived its governmental immunity through the purchase of liability insurance. Def. 414. Moreover. 33 (1999). 122 (2001).A.C. Def. Defendants make abundantly clear that the duty of operating the jail. “Ill will alone is insufficient to show actual malice. at 415. rev’d on other grounds. perhaps a wicked or evil motive. rev’d on other grounds. 415 (1999). Coates. 271 Ga. 9. municipality is not liable for torts of policemen during their discharge of their duties. 33-24-51(b). 36-33-1(a).G.Adams v. and establishing policies and procedures are discretionary acts as to which both defendants are entitled to official immunity. “its presence alone cannot pierce official immunity.” Kidd v. City of Atlanta.G. Peeples v. Furthermore. Const. Domenici. Defendants argue that Smith has not offered any proof that either Defendant harbored malice toward Smith or intended to injure him. 274 Ga. Par. not merely an intent to do the act purportedly resulting in the claimed injury. Cameron v. 888 (1989). App.

Def. However. Despite the Plaintiff not making the requisite finding.” Pl.” Def. 4. Appendix A. at 18. since Plaintiff did not address specifically whether or not Burke or Edwards are entitled to official immunity or point to any evidence that Athens-Clarke County has waived sovereign immunity due to acquiring insurance.” and that “once the need for force is no longer present. and in violation of the policy that only allowed for the Level Two 18 . Plaintiff does make the assertion that “no one is above the law. In order to determine which duty to apply. Def. Def. The Policy states. the continued response to resistance/aggression cannot be justified. Exhibit B(1). A strike to the face would be considered a “higher level of force” than the Level Four Hard Empty Hand Control. Exhibit B(1). ensure witnesses are identified. than a supervisor must file a Report stating what happened. Def. we will forge ahead to the analysis of the law. Motion at 1-2. who was involved. take photos. and forward the all documentation to a higher supervisor for review. the record contains sufficient evidence to proceed with the analysis. If an officer has to engage in an instance that initiates a Response to resistance/Aggression. Exhibit B(1). Exhibit B(1) at 1. the policy has a detailed guideline as to the proper procedural guidelines supervisors are to follow if and when any degree of force results in serious physical injury. Also. at 8-11. at 9. Exhibit B(1). “personnel will only use reasonable force to accomplish their legal objectives. The Response to Resistance/Aggression policy establishes a six level continuum to respond to prisoners’ aggression.in this case. para. Plaintiff did not argue against Defendants Burke and Edwards’ entitlement to official immunity. is whether Defendants’ actions or inactions constituted a discretionary or ministerial duty and whether Athens-Clarke County has waived any sections of its otherwise entitled sovereign immunity. The issues presented before this Court. a brief look at the Response to Resistance/Aggression Policy is necessary.

App. And. Even if this Court should find that the acts by Defendants were ministerial duties.Soft Empty Hand Control when a prisoner is uncooperative. App. as discussed later in this memorandum in section F. The United States 19 . is a discretionary governmental function of the county as opposed to a ministerial. Plaintiff claims Defendants were unresponsive to his requests to be heard. Qualified immunity offers public officers and employees limited protection from suit in their personal capacity. proprietary. we must look to see if Defendants acted with malice and an intent to injure Plaintiff. and without any evidence of either.” Harvey. Thus. 385 (2003). Bibb County. but even if these requests were made and Defendants stood idly doing nothing. or administratively routine function. Since Plaintiff has presented no evidence that Athens-Clarke County has waived its sovereign immunity or that Athens-Clarke County has purchased any insurance for negligent acts committed by its sheriff department. 382. overwhelming Georgia Case law. 260 Ga. has consistently held that “the operation of a police department. Middlebrooks v. 261 Ga. including the degree of training and supervision to be provided its officers. Plaintiff would have to demonstrate that the acts were performed negligently. Finding no evidence in the record demonstrating that Defendants acted with malice and an intent to injure Plaintiff. a criminal act by a third party will absolve Defendants of liability for Plaintiff’s claims. Although what appears to be ministerial duties for offers to perform. Defendants Burke and Edwards may be entitled to official immunity. especially in the Court of Appeals. at 191. Defendants may be entitled to official immunity barring a waiver of sovereign immunity by Athens-Clarke County. DEFENDANTS BURKE AND EDWARDS MAY NOT BE ENTITLED TO QUALIFIED IMMUNITY IN PLAINTIFF SMITH’S STATE LAW CLAIMS. ill will is not sufficient. 4. AthensClarke County may not be liable for the torts committed by its employees absent actual malice. Thus.

since a reasonably competent public official should know the law governing his conduct. 939 F. 260 Ga. 1992)." Harlow v. An appellate court reviewing the denial of the defendant's claim of immunity need not consider the correctness of the plaintiff's version of the facts. see Stough v.” Courson v. Defendants must show that their conduct does not violate clearly established statutory or constitutional rights a reasonable person would have known or that the law was not clearly established. 528 (1985). Whether a claimed right "is clearly established is a question of law for the court to decide. 457 U. Forsyth.App.S.S. The test is now called the "objective reasonableness" standard. see also Harvey v.2d at 1525. nor even determine whether the plaintiff's allegations actually state a claim." Harlow. 472 U.2d 637. the immunity defense ordinarily should fail. 2003). quoting Mitchell v. a plaintiff “must draw the court’s attention toward a more particularized and fact-specific inquiry…show[ing] that there 20 . For a plaintiff to prevail over a defendant’s qualified immunity defense. In order for Defendants to attain qualified immunity. 800. “All it need determine is a question of law: whether the legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions or. in cases where the district court has denied summary judgment for the defendant on the ground that even under the defendant's version of the facts the defendant's conduct violated clearly established law. 818 (1982). Nichols. 641 (11th Cir.2d 1523. whether the law clearly proscribed the actions the defendant claims he took. Sapp. 1991). Stough. Gallagher. 457 U. 967 F. Fitzgerald.2d 1479 (11th Cir.App. McMillian.Supreme Court has held that "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. 9191 F. at 818-19. 187 (Ga.S." Andreu v. "If the law was clearly established. 1990). 511. 1525 (11th Cir. 967 F.

967 F. of Human Resources. 1988). 865 F. 967 F. 716 F. 1395 (11th Cir. 1990).2d 1187.” Stough. Nicholson v.2d at 1564. 1994).2d 145. see Barts v. Joyner. Georgia Dept. City of Foley.3d 1390. 841 F. Dollar.” Stough. 1121 (5th Cir. 849 (11th Cir.’” Rich. 918 F. Belcher.2d at 156364. well-recognized right of which a reasonable police officer should have known…the right must be sufficiently particularized to put potential defendants on notice that their conduct probably is unlawful.2d 1558. 30 F. 1983)(per curium).2d at 1526. 1190 (11th Cir. then the defendant is entitled to qualified immunity. In Rich v. the Eleventh Circuit Court of Appeals derived a two-part analysis for applying the objective-reasonableness test to a qualified immunity defense: (1) the defendant public official must first prove that “he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.” Belcher v.2d 847. Plaintiffs must prove the existence of a clear.existed sufficient case law establishing the contours of his or her constitutional rights such that the unlawfulness of the defendant’s conduct would have been apparent to a reasonable official in the same circumstances…if no such case law exists.2d at 1526. factually defined.2d at 1537. 1563-64 (11th Cir. Rich. Unit A July 1981)). Jackson. 841 F. 30 F. quoting Zeigler v. 147 (11th Cir.2d 1107. a government official proves that he acted within his discretionary authority by showing “‘objective circumstances which would compel the conclusion that his actions were undertaken pursuant to the performance of his duties and within the scope of his authority.3d at 1395.” and (2) once the “defendant public official satisfies his burden of moving forward with the evidence. 1989). 651 F. Unless a “government 21 . 841 F. quoting Barker v. Hutton. 919 F. the burden shifts to the plaintiff to show lack of good faith on the defendant's part. Rich v. Dollar. The burden is met by proof demonstrating that the defendant public official's actions “violated clearly established constitutional laws. Under the Zeigler/Rich formulation of the objective-reasonableness test. Norman.

849 F. For qualified immunity to be surrendered. 30 F. 1988) (finding genuine issues of material fact precluded summary judgment based on qualified immunity).3d at 1396.2d at 1487-88. at 818. “pre-existing law must dictate. the conclusion for every like-situated.S. 475 U. that is. The second component of the Zeigler/Rich objective-reasonableness test is divided into two analytical subparts. we have held that qualified immunity would be defeated if an official "knew or reasonably should have known that the action he took within his sphere of official 22 . 635. Referring both to the objective and subjective elements. Ethridge. 30 F.” Belcher. citing Harlow. truly compel (not just suggest or allow or raise a question about). the court must determine whether there is a genuine issue of fact concerning the government official's conduct being in violation of clearly established law. 457 U. see Webb v. the government actor has immunity from suit. Courson. Rich. that only a plainly incompetent officer or one who was knowingly violating the law would have done such a thing.S. citing Malley v." Harlow. The objective element involves a presumptive knowledge of and respect for "basic. at 185.3d at 1395-96. Creighton. 841 F." is defined. 341-43 (1986). unquestioned constitutional rights. the reviewing court must decide whether the applicable law was clearly established when the governmental action in question occurred.S. in light of pre-existing law. with reference to the right that the official is alleged to have violated. 640 (1987). Decisions of this Court have established that the "good faith" defense has both an "objective" and a "subjective" aspect. First.2d 546.agent’s act is so obviously wrong. 335. as meaning that "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. reasonable government agent that what the defendant is doing violates federal law in all circumstances.2d at 1563-64. 841 F. 841 F. 550 (11th Cir. 457 U.” Belcher. Rich.2d at 1563-64. Briggs." Anderson v.S.2d at 156365. Second. 483 U. Rich. 939 F. "Clearly established.

at 817-818. Smith “cannot demonstrate that the right was clearly established so as to strip the individual defendants of qualified immunity. 832-833 (CA2 1977).g. works under the supervision of the sheriff. 457 U. 457 U. Plaintiff argues that Edwards is not entitled to qualified immunity because “[e]ach and every employees[sic] at Clarke County Jail. e. 443 U. Defendant claims that even if a violation of a constitutional right has been shown.2d 1320. or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury. Brief at 10. 457 U. Defendants argue that Plaintiff Smith “does not set forth any specific allegations which connect Sheriff Edwards or Captain Burke to the specific claims of any alleged constitutional violations. 111. In the present case.S. paras. government officials performing discretionary functions “generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.S. Motion at 1-2. 566 F. Landrum v. Sugarman. 576 F.” Harlow. Duchesne v. Thus.S. at 815 (emphasis added). Pl." Harlow. And an official's subjective good faith has been considered to be a question of fact that some courts have regarded as inherently requiring resolution by a jury. Defendants reiterate that operating a jail. cf.responsibility would violate the constitutional rights of the [plaintiff].. Def. Proxmire.” 23 . Moats. may properly be decided on summary judgment in a suit alleging libel of a public figure).” Def. at 816. Plaintiff argues that Defendants Burke and Edwards are not entitled to qualified immunity." as an issue of fact.9 (1979) (questioning whether the existence of "actual malice.2d 817.” Def. and establishing policies and procedures supervising a jail are discretionary acts. Def. Therefore. Brief at 10. 1-5. Defendants argue that anything Defendants “could be accused of doing or not doing falls well within their discretionary authorities as Sheriff and Captain. supervising employees. Brief at 10. 1329 (CA8 1978)... Harlow. Brief at 10. 120 n.S. Hutchinson v.

para.” and qualified immunity could be denied. Plaintiff’s sole claim assertion of abuse. 5.” Def. The first component of the good faith test is 24 . Plaintiff further contends that he attempted to contact Burke and Edwards “through letters and complaint forms.Def. 1. The Policy was officially established prior to the alleged assaults on Plaintiff. If Plaintiff had shown that Defendants were negligent in the performance of their duties and this negligence was “particularized to put potential defendants on notice that their conduct probably is unlawful. Supervising employees is certainly an act of performing one’s duties within the scope of their authority. para. Furthermore. Plaintiff has not made that showing under the first part of the Zeigler/Rich objective-reasonableness test. 3. Motion at 1.” Def. Plaintiff argues Burke is not entitled to qualified immunity because “[h]e’s the immediate supervisor and should know what is going on. Motion at 1.” Def. 2. Both Defendants were acting within the scope of their discretionary authority. However. para.” then Defendants actions would rise to the level of clearly violating prisoners’ constitutional rights that a “plainly incompetent officer or one who was knowingly violating the law would have done such a thing. under the second component of the Zeigler/Rich test. para. Motion at 2. Plaintiff has made a sufficient showing to deny qualified immunity to Defendants. Motion at 1. A question of fact remains as to whether Defendants have a good faith defense based on the objective component of the good faith defense. Plaintiff has not proffered any other affidavits that other prisoners are being abused. Plaintiff asserts that “[s]everal other inmates also complain about officers[sic] abuse and nothing was [done] by Captain Burke or Sheriff Edwards. is insufficient to put Defendants on notice that even a plainly incompetent officer would know he was violating the law. and thus claiming an isolated incident. Plaintiff claims Defendants knew or should have known that the Policy was being violated by other officers and that nothing was done to correct their behaviors. However.

However. The only place to determine what one or both of the Defendants knew or should have known prior to the alleged assault on Smith or after the alleged assault on Plaintiff is at trial. therefore. City of Atlanta. Since both defendants may be entitled to sovereign immunity in their official capacities. 25 . 96 (1998). Courson. Plaintiff Smith may be precluded from further litigation against Defendants.determining whether the law was clearly established. 231 Ga. App. 238 F.S. Fulton County School Dist. capacity is in reality suits against municipality and.. Hackett v. Defendants deny such existence of any knowledge of prisoner abuse prior to the alleged assault on Plaintiff. Pearson v. as opposed to his personal/individual. PLAINTIFF MAY NOT PREVAIL ON A GENERAL RESPONDEAT SUPERIOR STATE TORT CLAIM. involve sovereign immunity. 939 F. 5. Official immunity under Georgia law offers limited protection to public officials and employees from tort claims against them in their individual capacities. The Supreme Court addressed the second component of the good faith defense holding in Harlow that qualified immunity would be defeated as an “official knew or reasonably should have known that the action he took…would violate the constitutional rights of the plaintiff.” Harlow. were acting in their official capacities. Defendants admit that Sheriff Edwards signed the Policy into effect in January 2002.Supp. Any cause of action averred against a municipal police officer in his official. at 815. for the reasons stated before. Officer Stapleton may or may not have been acting in the scope of his employment when he committed the alleged assault. See discussion of Sovereign immunity in a preceding section. This is not a question of law but of fact. 457 U.2d 1330 (2002). whether they were negligent or indifferent in supervising Officer Stapleton in accordance with the Policy or not. qualified immunity may be denied to both Defendants under precedent case law and the circumstances presented in this case.2d at 1487-88. however this issue is not determinative. Captain Burke and sheriff Edwards.

The plaintiff must show the defendant had a duty to plaintiff. and the plaintiff’s injury resulted in damages. breech of that duty. 176 (1974). para (B)(6). than Athens-Clarke County in establishing its Policy has a duty not to use any more force that necessary. and without which it would not have occurred. Exhibit B(1) at 1. Def. 390 (1901). Georgia law has been generally held that when “there has intervened between the defendant’s negligence and the injury an independent. Defendants Burke and Edwards were not present during the assault. A violation of the Policy in this manner would constitute a simple assault under O. The key factor in determining Defendants’ liability is whether or not the 26 . An intervening criminal act may break causation. 174. Exhibit A.6. Defendants concede that if Officer Stapleton did assault Smith in the manner Smith describes. v. Kinsel. Arnold.A. nor actually participated in the assault. 133 Ga. such independent criminal act should be treated as the proximate cause. illegal act of a third person producing the injury. than Officer Stapleton’s acts would have violated the Response to Resistance/Aggression policy. §16-5-20 (2004). did not witness the assault. breaking liability to a third party who may have been liable if not for the intervening act. Assuming Plaintiff Smith’s versions of the facts are true. Negligence claims require a duty. Smith claims he has sustained multiple injuries. than a breech of this duty has occurred. PLAINTIFF MAY NOT PREVAIL ON A GENERAL NEGLIGENCE CLAIM AS A CRIMINAL ACT BY A THIRD PARTY ABSOLVES A DEFENDANT WHO MAY HAVE OTHERWISE BEEN LIABLE. and damages. see also Andrews & Co. The question before this Court is a question of causation. If an unprovoked officer injured Smith.G. 114 Ga. including an unprovoked assault or any other injurious act. causation. Causation requires the injury to be directly caused by someone or something. Def. the defendant breeched the duty.C.” Warner v. App. A negligence claim requires four elements to be proved before a plaintiff may prevail. insulating and excluding the negligence of the defendant. the breech was the proximate cause of plaintiff’s injury.

App. Matt. In the instant case. Defendants deny any such knowledge. within the meaning of the eighth amendment. Inc. Days Inns of America. 189 Ga. 1046 (E. 263 Ga. Paschal v. A Georgia state prisoner brought a suit against various prison officials alleging his constitutional rights were violated when prison guards beat him without provocation. 265 Ga. 235 (1995). Thus. Furthermore. punishment.. 1980). 643 (1993) (finding more than a mere possibility must be shown to establish reasonable foreseeability). App. 7.” George v.D.1975) (finding “[a] single punch in the face by a prison guard does not constitute cruel and unusual punishment”). Three Rivers Security Inc. v. Plaintiff Smith may not make an eighth amendment claim. 892 (1995). PLAINTIFF MAY NOT PREVAIL ON A 8TH AMENDMENT CLAIM OF CRUEL AND UNUSUAL PUNISHMENT. 448 (1988). Southeastern Stages.Ill. 447. 391 F. 415-416 (5th Cir. Plaintiff Smith has filed no other affidavits from other prisoners that Officer Stapleton or any other officers have on other occasions defied the Policy and attacked other prisoners without provocation. Evans. see also Sheffey v. v. 216 Ga. 1044. Howell v. it must also be shown that the Defendants had superior knowledge of the existence of the condition that subjected the plaintiff to an unreasonable harm. Substantially similar prior conduct must have occurred to put the defendants on notice that this conduct might reasonably be anticipated to occur again. Inc.2d 413. Ferguson Transport. Greer.Defendants could reasonably foresee the possibility of a third person’s criminal act. 890.Supp. The burden rests on the plaintiff to demonstrate the existence of said knowledge. the act by Officer Stapleton punching Smith in the face as an isolated incident cannot be said to be a reasonably foreseeable event by Captain Burke or Officer Edwards. 641. Stringer. Inc.. 27 . Plaintiff’s claim on a state negligence theory may fail as a matter of law. “An isolated assault by an individual guard on an inmate is not. 633 F.

2d 1191 (11th Cir. Plaintiff may not make a future claim on 8th Amendment claim of cruel and unusual punishment against Defendants.2d at 416. Thus. however. 1987). and case law supports denying summary judgment against those officers who may have participated in the assault. a municipality can be held liable under §1983 if a municipality tacitly authorizes actions or displays deliberate indifference towards police misconduct. notwithstanding the collateral estoppel issues. 28 . there was no punishment in this case.There was insufficient evidence to show that the beating was “authorized or acquiesced in by high prison officials for a penal or disciplinary purpose.” George. I would grant summary judgment for Defendants based on a respondeat superior and sovereign immunity. Case law holds even if both of these officers were negligently performing their duties. 633 F. Case law has found a bare accusation is insufficient as the county cannot be responsible for “one bad apple. Brooks v. Without the Plaintiff claiming a course of conduct rather than this isolated incident.” Plaintiff does have a claim against the officers who participated in the alleged assault in their personal capacities. if your Honor finds that the municipality's failure to correct constitutionally offensive actions of its police department (in this case the sheriff’s department) has risen to the level of custom or policy. PERSONAL RECOMMENDATIONS I would recommend granting Sovereign immunity to both Captain Burke and Officer Edwards. a claim against the defendants in their official capacity is a suit against Athens-Clarke County. this burden may not be reached in this case. Consequently. I would deny qualified immunity to both Defendants because the policy had been established for a couple of years and a question of fact may exist as to each defendant’s knowledge of possible violators of the Policy. and something more is needed for Plaintiff to attach liability to the County. Scheib. In conclusion. 813 F. 8.

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