Fields v. HowseFields v. Howse
This matter comes before the Court for consideration of the Non-Final Report and Recommendation (R&R), Dkt. No. [100], in which Magistrate Judge John K. Larkins III recommends that Defendant‘s motions to dismiss, Dkt. Nos. [80, 87, 89], be granted as unopposed as to Plaintiff‘s excessive force claims against Defendants Lewis and Johnson and otherwise denied. Defendants have filed their objections to the R&R. Dkt. No. [106]. Plaintiff has not filed objections to the R&R, but he has responded to Defendants’ objections. Dkt. No. [110].
A district judge has broad discretion to accept, reject, or modify a magistrate judge‘s proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 680 (1980). Pursuant to
Plaintiff is homeless. Through counsel he has filed an amended complaint raising civil rights claims under
The Magistrate Judge agreed with Plaintiff that he should be able to replead the complaint to correct the misnomer and change GCPD to Gwinnett County, Georgia. In response to Defendants’ argument that the amendment would be futile because Plaintiff has not stated a claim under Monell v. Dep‘t of Soc. Servs., City of N.Y., 436 U.S. 658, 694 (1978), the Magistrate Judge disagreed, finding that Plaintiff‘s allegations of unofficial policies of the police department were sufficient to survive a motion to dismiss. The Magistrate Judge further determined that Defendants are not entitled to dismissal of some of Plaintiff‘s older claims on statute of limitations grounds because it is not clear from the face of the complaint
The Magistrate Judge also concluded that Plaintiff had provided sufficient evidence to show that Defendants3 were all properly served to avoid dismissal at this stage, and that Plaintiff‘s claims are not barred under the Heck doctrine because he is no longer in custody and his short period in custody did not give him a meaningful opportunity to pursue a writ of habeas corpus and because, with respect to one of his arrests, the Heck bar does not apply.
In addition, the Magistrate Judge determined that Defendants’ argument that Plaintiff‘s Alford plea waived his claims is inapplicable to claims raised under
A. Monell Liability
In their objections, Defendants first argue that the Magistrate Judge erred in determining that Plaintiff had sufficiently stated a Monell claim by alleging a custom or policy of GCPD. According to Defendants, Plaintiff‘s allegations of a custom are too conclusory to survive because they do not identify prior incidents of similar conduct that establish a claim beyond mere speculation. However, given the allegations of the entire complaint along with the video evidence that was described in detail by the Magistrate Judge, Dkt. No. [100] at 28-34, which both suggest that police officials struggled to conjure trumped-up charges against Plaintiff to keep him off the streets because he was homeless and annoying, the allegation that those officials were acting in accord with a custom or unofficial policy to harass and deprive homeless individuals of their property is certainly plausible under the standard discussed in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Moreover, Plaintiff has alleged repeated instances of false arrest, of the use of excessive force against him, and of his property being discarded or destroyed by police, and such allegations have been found sufficient to state a claim under Monell, even under the more exacting pleading standards of Iqbal and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
B. Challenge to Personal Service
In their motion to dismiss, Defendants (other than Howse) contend that they were not properly served with process. In this case, service on those Defendants was made by delivering copies of the summons and amended complaint to Corporal Robert Broccoli, GCPD‘s court liaison, on September 17, 2024. Dkt. No. [78]. Defendants contend that Broccoli is not authorized to accept service on Defendants’ behalf, and Broccoli himself submitted an affidavit in which he disclaims any authority to serve as Defendants’ agent for accepting service. Plaintiff‘s process servers provided their own affidavits in which they
attest that they were told by the front office at Gwinnett Police Headquarters that Corporal Broccoli-whose office was at a different location-was the officer who would accept service on behalf of the individual Defendants; that when they each called Corporal Broccoli he confirmed that he was available to accept service, that he did, in fact, accept service and at no point indicated that he was not authorized to do so; and that both [process servers] were surprised to learn that Corporal Broccoli has denied that he is authorized to accept service in this case. [One of the process servers] further attests that she was familiar with Corporal Broccoli because she previously had served papers-including subpoenas and summonses-upon Broccoli in
court cases involving Gwinnett County Police Officers, including for actions involving excessive force.
Dkt. No. [100] at 38 (citations to the record omitted).
Generally, for an agent to act on behalf of a principal, the principal must actively appoint the agent for the specific purpose, and an agent must be authorized by appointment or by law to accept service.
While the Magistrate Judge and Plaintiff have made a fair argument that Defendants did not themselves disclaim that they authorized Broccoli, this Court finds that a statement directly from the purported agent suffices to demonstrate that he was not properly authorized to accept service under
However, Plaintiff also correctly points out that dismissal for improper service is not the only solution. This Court has the discretion to extend the time for service of process even absent a showing of good cause “if the applicable statute of limitations would bar the refiled action, or if the
C. Heck Bar
As noted, the Magistrate Judge determined that Plaintiff, given his short sentences of incarceration, did not have a meaningful opportunity to challenge his convictions, and thus the Heck bar should not apply. In Heck, the Supreme Court held that in order to recover damages from an unlawful imprisonment, a ”
The exception to the Heck doctrine invoked by the Magistrate Judge “evolved from Justice Souter‘s concurring opinion in Spencer v. Karma, 523 U.S. 1, 19-21 (1998) (Souter, J., concurring), in which he suggested that the favorable-termination requirement in Heck should not apply to a prisoner no longer in custody.” Dkt. No. [100] at 20. The Eleventh Circuit has suggested (but not adopted) its own gloss on Justice Souter‘s proposed rule where the Heck bar would not apply when the plaintiff did not have a meaningful opportunity to challenge his conviction. Id.; Topa v. Melendez, 739 F. App‘x 516, 519 n.2 (11th Cir. 2018).
The Magistrate Judge determined that the exception to the Heck bar applies to Plaintiff‘s claims related to his first arrest because Plaintiff was
At the outset, it is important to note that only one claim of the amended complaint is potentially called into question under Heck—Plaintiff‘s claim of false arrest related to his first arrest for littering. Plaintiff entered a nolo plea to that claim. His other claims of excessive force and trespass to property, and his false arrest claim related to his second arrest for solicitation5 are not Heck barred because a judgment in Plaintiff‘s favor would not contradict the facts essential to his conviction. Henley v. Payne, 945 F.3d 1320, 1327 (11th Cir. 2019) (Heck does not bar false arrest claim when plaintiff was arrested for trespass but “he pled guilty to wholly
Turning to Plaintiff‘s claim related to his first arrest for littering to which he entered a nolo contendere plea, this Court concludes that Heck does not bar that claim. While Defendants insist that his one-year period of incarceration plus probation afforded Plaintiff with a sufficient opportunity to file, for example, a habeas corpus petition, another judge of this Court in the Arnold case mentioned above held that it is not clear that Heck would bar a claim in circumstances similar to this case. Arnold, 2023 WL 3243913, at *11 (citing Spencer, 523 U.S. at 19-21 (Souter, J., concurring), for the proposition that ”Heck did not hold that a released prisoner . . . is out of court on a
Moreover, it is not at all clear that one year is sufficient time to prosecute a habeas corpus case in state court, and it clearly would not be sufficient for a petitioner to exhaust his state court remedies and then obtain the writ in federal court. State court habeas corpus cases routinely last well over a year, and there is no evidence in the record for this Court to find that Plaintiff had sufficient time to prosecute his habeas corpus case. See Teagan v. City of McDonough, 949 F.3d 670, 678-79 (11th Cir. 2020) (“It is unclear whether Heck would apply here, as the length of imprisonment was so short ‘that a petition for habeas relief could not have been filed and granted while [Ms. Teagan] was unlawfully in custody.‘” (quoting Morrow v. Fed. Bureau of Prisons, 610 F.3d 1271, 1272 (11th Cir. 2010)) (alteration in original)); see also Wright v. St. Lawrence, 691 S.E.2d 880, 882 (2010) (holding that once petitioner is released from custody, his habeas corpus petition is moot); Diaz v. State of Fla. Fourth Jud. Cir. ex rel. Duval Cnty., 683 F.3d 1261, 1266 (11th Cir. 2012) (district court properly dismissed habeas corpus petition as moot once petitioner had fully satisfied his state court sentence).
In addition, it is not entirely clear that Plaintiff could have sought habeas corpus relief while on probation. Certainly, under federal law, probation satisfies the in-custody requirement to proceed with a habeas corpus petition. Duvallon v. Florida, 691 F.2d 483, 485 (11th Cir. 1982). However, as indicated above, state prisoners must first exhaust their state court remedies before seeking federal habeas corpus relief, Johnson v. Florida, 32 F.4th 1092, 1095-96 (11th Cir. 2022), and, in Sorrow v. Vickery, 184 S.E.2d 462, 462 (Ga. 1971), the Georgia Supreme Court held that a habeas corpus proceeding was rendered moot by petitioner‘s release on parole. While there may be suggestions in the state‘s case law that the holding in Sorrow would not be upheld if it were considered today, see Hardison v. Martin, 334 S.E.2d 161, 163 (1985) (holding that suspension of a driver‘s license that caused petitioner to lose his job was a significant enough restraint on his liberty to allow a habeas corpus petition to
D. Defendants’ Remaining Objections
In their remaining objections, Defendants have failed to show that the Magistrate Judge erred. Defendants have not shown at the motion to dismiss stage that they are entitled to qualified immunity. Indeed, the video evidence that they provided show them scheming to find a reason to arrest Plaintiff and then turning off their body cam microphones for extended periods, indicating that they lacked probable cause and were well aware that they were in the process of possibly violating Plaintiff‘s rights.
Defendants have further failed to demonstrate that the Magistrate Judge erred in determining that Plaintiff‘s Fourth Amendment deprivation of property claim survived their motion to dismiss. The allegations in the complaint are that Defendants simply left Plaintiff‘s valuable possessions
Finally, this Court again agrees with the Magistrate Judge that the complaint sufficiently alleges facts to show that Defendants, in manufacturing pretextual charges against Plaintiff, maliciously intended that Plaintiff lose his property. Accordingly, this Court concludes that Defendants have not yet established that they are entitled to official immunity to Plaintiff‘s state law claims.
III. Conclusion
Having reviewed the record in light of Plaintiff‘s objections, this Court concludes that the Magistrate Judge is mostly correct. Accordingly, the R&R, Dkt. No. [100], is hereby ADOPTED IN PART as the order of the Court, Defendants’ motions to dismiss, Dkt. Nos. [80, 87, 89], are GRANTED IN PART, Plaintiff‘s excessive force claims against Defendants Lewis and Johnson are DISMISSED, and this Court agrees that Defendants other than Howse were not properly served with process. Defendant‘s motions to dismiss are otherwise DENIED. See also supra n.7.
As discussed, the time for service of process in this matter is EXTENDED pursuant to
As noted by the Magistrate Judge, the parties are again reminded to confer and file their motions for discovery and proposed discovery schedules within thirty days of the date of this order. The Clerk is DIRECTED to submit this matter to the Magistrate Judge for further proceedings.
IT IS SO ORDERED this 28th day of April, 2025.
Leigh Martin May
United States District Judge