ORDER
In this action, Plaintiff Frederick Gibbons asserts claims against the Board of Regents of the University System of Georgia and seven named officers of the Georgia . Regents University (“GRU”) Police Bureau, among others unnamed, for deprivation of his First, Fourth, Fifth, Thirteenth, and Fourteenth Amendment rights, as well as violations of various state laws, when Officer Wesley Martin tásed him five times during a traffic stop for an alleged tag violation. In lieu of answering Mr. - Gibbons’ Amended Complaint (Doc. 40), Defendant's move for partial dismissal on multiple grounds, including various immunities; failure'to comply with the procedural requirements of the Georgia Tort Claims Act (“GTCA”), and failure to state claims upon which the Court can grant relief.' For the reasons stated herein, the Court GRANTS IN PART and DENIES IN PART Defendants’ Partial Motion to Dismiss. (Doc. 42.)
J. BACKGROUND
A. Factual Background
Mr. Gibbons, an African-American male, owns and operates two small businesses in Augusta, Georgia—a used car dealership and the café-lounge Soultry Sounds. (Am. Compl. ¶¶ 6, 20, 22, 49.) The instant suit arises out of two' incidents with the GRÜ Police Bureau. The Court summarizes each in turn.
1. September 23, 2010 Traffic Stop
In the early hours of September 23, 2010, Mr. Gibbons closed down Soultry Sounds, collected the night’s receipts, and left downtown Augusta in a vehicle with a Dollar Down Auto Sales (“Dollar Down”) dealer tag to drive to his .house in southern
Four days later, on September 27, 2010, Mr. Gibbons filed an internal affairs complaint against Officers Martin, Skinner, and Bennett about being stopped for a valid dealer tag. (Id. ¶¶37, 38.) William McBride, Chief of Police for the GRU Police Bureau and Director of Public Safety at GRU, appointed Kymyatta Turner, a Police Operations Specialist (“POS”), to conduct an investigation into the,September 23, 2010 incident. (Id. ¶¶ 8, 14, 39.) According to Mr. Gibbons, POS Turner had no prior training or experience in internal affairs investigations. (Id. ¶40.) POS Turner’s investigation concluded that Officer Martin “did not break the law, violate any policies of correct police conduct, or otherwise breach any duties to Gibbons in his acts, or failures to act, as to Gibbons.” (Id. ¶ 43.) POS Turner passed on her findings - to Chief McBride, and Chief McBride took no action to sanction or punish Officer Martin for his conduct during the September 2010 stop. (Id. ¶¶ 44, 45.)
On December 1, 2010, the Augusta-Richmond County Solicitor General dismissed the citation issued to Mr. Gibbons as a result of the September 2010 stop. (Id. ¶ 46.)
2. March 1, 2012 Traffic Stop
In the early hours of March 1, 2012, Mr. Gibbons closed down Soultry Sounds, collected the night’s receipts and cash, and left downtown Augusta to drive home in a vehicle with a dealer tag listing Soultry Sounds. (Id. ¶¶ 48, 50.) While driving on Wrightsboro Road at around 3:00 AM past the Medical College of Georgia, Officer Martin stopped Mr. Gibbons because “[he] saw the paper dealer tag.” (Id. ¶¶ 51-53, 64.) Officer Martin directed Mr. Gibbons to turn onto a dark side road. (Id. ¶ 64.) Once Officer Martin stepped out of his patrol car, Mr. Gibbons recognized him. (Id. ¶¶65, 66.) As Officer Martin approached his car, Mr. Gibbons rolled down his window “a couple inches,” asked if they could proceed to a well-lit convenience store nearby, and upon Officer Martin’s refusal, called 911 to request assistance “because he had been pulled over [for] a paper dealer tag” and “had trouble with [Officer Martin] before.” (Id. ¶¶ 68-70.) Officer Martin saw Mr. Gibbons through the window, recognized him from the September 2010 stop, and heard him requesting emergency assistance. (Id. ¶¶ 67, 71.) Officer Martin began to yell, repeatedly demanding that Mr. Gibbons get out of the car and open the door. (Id. ¶¶ 72, 73.) Officer Martin then announced Mr. Gib
The second internal investigation into Officer Martin’s conduct, again carried out by POS Turner, and Mr. Gibbons’ subsequent criminal trial on the obstruction charge revealed that Officer Martin lied on an official form about Mr. Gibbons’ alleged failure to engage, him in dialogue during the March 2012 stop. (Id. ¶ 107.) According to Mr. Gibbons, Officer Martin also “perjured himself while trying to justify his stop by telling the jury Gibbons had no paper tag at all.” (Id. ¶ 136.) Officer Martin further explained “that he pulled the trigger of the taser the first time because Mr. Gibbons was non-compliant, and the second time was to frighten Mr. Gibbons into rolling the window down.” (Id. ¶ 104.) This explanation is consistent with the fact that Officer Martin did not identify any safety threats or concerns in his police report following the incident. (Id. ¶ 80.) At the same time, GRU Police Bureau policy forbids using a taser to coerce. (Id. ¶ 105.) Officer Martin contended that the final three pulls of the taser trigger “were inadvertent and caused by his hand being stuck in the window.” (Id. ¶ 109.) Mr. Gibbons further, alleges that another officer, Brian Jackson, likewise perjured himself when he told the jury that Mr. Gibbons “had shot Martin the bird right before the 2012 traffic stop” and had no tag on his car. (Id. ¶¶ 139, 140.)
POS Turner again found nothing wrong with Officer Martin’s actions and Chief McBride “ratified Turner’s finding about Martin not committing any policy violations and his triple ' inadvertent trigger pulls.” (Id. ¶¶ 108, 118.)
On July 11, 2013, a Richmond County Superior Court jury acquitted Mr. Gibbons of obstruction. (Id. ¶ 135.)
B. Procedural Background
On February 28, 2014—only‘two days prior to the expiration of the statute of limitations on claims arising out the March 2012 arrest—Mr. Gibbons filed this § 1983 action against Defendants. In lieu of answering Mr. Gibbons’ 31-page, 272-para-graph Complaint, Defendants moved on July 3, 2014 for a more definite statement pursuant to Federal Rule , of Civil Procedure 12(e),. or in the alternative for partial dismissal. (Doc. 12.) In that motion, Defendants identified a laundry list of. pleading deficiencies, including that each of Mr. Gibbons’ thirteen claims fully incorporated every paragraph that preceded it, and some counts in fact double incorporated the preceding facts and other claims; Mr. Gibbons referred to Defendants collectively, and certain individual Defendants were referenced only in the paragraphs purporting to set forth the underlying facts; and Mr. Gibbons did not consistently designate the constitutional or statutory source of his claims, or if designated, he did not clarify which Defendants were named under that claim. (Doc. 38 at 6-7.) Shortly thereafter, Defendants sought, and the United States Magistrate Judge granted, a stay of
Mr. Gibbons and Defendants then agreed to extensions of the briefing schedule for Defendants’ Rule 12(e) motion. (Docs. 18, 22.) During the course of briefing, Mr. Gibbons additionally filed a “Motion to Address Conflict of Interests” (Doc. 23), in which he urged that “Defendants should either have different attorneys or should waive their rights to assert their individual and contrary defenses on the record” (Doc. 23-1 at 6). He also filed an objection to the Magistrate Judge’s order granting the stay of discovery even though he failed to oppose that motion at the appropriate time. (Doc. 34.) All these motions finally ripened for the Court’s consideration on September 30, 2014. Shortly thereafter, Mr. Gibbons filed yet another motion and brief: a preemptive Motion for Leave to Amend, focusing on his supervisory liability claims, in the event the Court granted Defendants’ - alternative Partial Motion to Dismiss. (Doe. 36.) He also moved for a hearing on all the aforementioned pending matters. (Doc. 37.)
Oh October 27, 2014) the Court granted Defendants’ 12(e) motion and required Mr. Gibbons to re-plead his case with explicit instructions to clearly specify within each count (1) one source of law and/or one legal theory upon which he asserts liability; (2)' each defendant against whom he asserts liability oh that theory; and (3) the factual allegations that form the basis of each claim against each defendant. (Doc. 38.) Finding that it did-not have a well-pleaded complaint before it from which discovery could proceed, See Carter v. DeKalb Cnty., Ga.,
After Mr. Gibbons filed his Amended Complaint on November 10, 2014— slimmed to 27 pages and 183 paragraphs— Defendants renewéd their partial motion to .dismiss. (Doc. 42.) The motion is ready for disposition and, for the reasons explained below, is due to be granted in part.
II. STANDARDS OF REVIEW
A. Motion to Dismiss on Jurisdictional Grounds
A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure may be either a “facial” or “factual” attack. Morrison v. Amway Corp.,
B. Motion to Dismiss for Failure to State a Claim
Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief’ to give the defendant fair notice of both the claim and the supporting grounds. Bell Atl. Corp. v. Twombly,
At the same time, a complaint should not be dismissed for failure to state a claim “unless it appears beyond a doubt that the plaintiff can prove no set of circumstances that would entitle him to relief.” Conley v. Gibson,
C. Qualified Immunity
“Qualified immunity offers complete protection for government officials sued in their individual capacities if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Grider v. City of Auburn, Ala.,
To receive qualified immunity, the government official must first prove that he was acting within his discretionary authority. Gonzalez v. Reno,
In suits pursued under 42 U.S.C. § 1983, “the qualified immunity inquiry and the Rule 12(b)(6) standard become intertwined.” GJR Invs., Inc. v. Cnty. of Escambia, Fla.,
III. DISCUSSION
Mr. Gibbons has alleged virtually every possible variation of a § 1983 claim, as well as numerous state law claims, against eight named Defendants. At the -outset, for the sake of clarity, the Court outlines what it understands those claims to be.
*1357 • In Count I, Mr. Gibbons seeks to hold Officer Martin liable for carrying out an unlawful stop and claims all other Defendants were “deliberately indifferent to the need to train Martin that a paper dealer tag, without more, does not authorize a traffic stop” (Am. Compl. ¶¶ 58-63);
• In Count II, Mr. Gibbons seeks to hold Officer Martin liable for falsely arresting him for obstruction and claims all other Defendants “proximately caus[ed] out of deliberate indifference the unlawful stop,” and “it was so obvious that an unlawful stop would lead to a false arrest for obstruction, so each supervisor proximately caused the false arrest of Plaintiff for obstruction by deliberate indifference or reckless disregard” (Id. ¶ 93);
• In Count III, Mr. Gibbons seeks to hold Officer Martin liable for the use of any force because “Martin did not have probable cause to arrest Gibbons for obstruction” and claims all other Defendants “are liable ..., as shown by and incorporated herein ..., because false arrests will highly foreseeably cause force to be used in effectuating the arrest” (Id. ¶¶ 100, 101);
• In Count IV, Mr. Gibbons alternatively seeks to hold Officer Martin liable for using excessive force if the Court finds there was probable cause to arrest for misdemeanor obstruction and claims all other Defendants “proximately caused due to deliberate indifference the challenged excessive force by failing to train Martin how to appropriately use the taser despite Martin’s prior history of excessive taser use” (Id. ¶ 119);
• In Count V, Mr. Gibbons alternatively seeks to hold Officer Martin liable for using excessive force if the Court finds there was probable cause to arrest for felony obstruction and claims all other Defendants “are liable under § 1983 for the deprivation of Gibbons’ Fourth Amendment right,” incorporating by reference 23 other paragraphs (Id. ¶¶ 120-23);
• In Count VI, Mr. Gibbons seeks to hold Officer Martin liable for retaliating against him in violation of the First Amendment;
• In Count VII, Mr. Gibbons seeks to hold Officer Martin, Officer Jackson, POS Turner, Chief McBride, and John or Jane Doe liable “for causing, the obstruction charge, misdemeanor and/or felony, to go to trial, and for a conspiracy to present false evidence during the trial” (Id. ¶ 130);
• In Count VIII, Mr. Gibbons contends that the ‘conspiracy to prosecute Plaintiff in Count VII ‘was also meant to chill protected First Amendment activity to the right to a fair public trial' (Id. If 148);
• In Count IX, Mr. Gibbons only says, “the same facts underlying Claim I ... supports a claim for a deprivation of a First Amendment right of Gibbons’ freedom of movement and travel” (Id. ¶ Í54);
• In Count X, Mr. Gibbons seeks to hold Officer Martin liable for “unreasonable seizure in violation of ministerial duty” under Georgia law;
• In Count XI, Mr. Gibbons seeks to hold Officer Martin liable for false arrest;
• In Count XII, Mr. Gibbons seeks to hold Officer Martin liable for “abuse during arrest;”
• In Count XIII, Mr. Gibbons seeks to hold Officer Martin liable for “intentionally eaus[ing] or attempting] to cause Plaintiff physical injury” pur*1358 suant to O.C.G.A. § 51-1-13 and O.C.G.A. § 51-1-14, statutes which define the scope of tort law in Georgia;
• In Count XIV, Mr. Gibbons seeks to hold Officer Martin liable for false imprisonment; and-
• In Count XV, Mr. Gibbons states ‘[t]his claim is against Defendants Martin, McBride, Turner, Jackson, and John or Jane- Doe, because they caused a criminal prosecution to be instigated against Plaintiff under process, out of malice to get a wrongful conviction, prevent a future civil suite [sic], and to cover up their own misdoings' (Am. Compl. ¶ 178),
As Defendants summarize in response,
Defendants seek dismissal of all damage claims against any of them in their official capacity. All defendants other than [Officer] Martin seek dismissal of all claims against them in their individual capacity. Defendant Martin seeks dismissal of, all claims against him in his individual capacity except for Claims I thrdughV. '
(Defs,’ Br., Doc. 42-1, at 3 n.4, 23-24.) Utilizing the motion to dismiss standards articulated in Part II, supra, the Court now addresses the parties’ specific arguments in logical fashion.
A. Mr. Gibbons Cannot Sustain Any Claims Against Fictitious John or Jane Doe Actors
“As a general matter, fictitious-party pleading is not permitted in federal court.” Richardson v. Johnson,
In this ease, Mr. Gibbons does not describe John Doe or Jane Doe with any specificity. In some instances, he merely states that John Doe or Jane Doe is a ‘supervisor/ (See id. ¶¶ 56, 63, 92, 93, 94, 101, 116, 119, 122.) In the caption, he identifies John Doe- and Jane Doe ’as ‘officers/ (See Ani. Compl. at 2.) In other paragraphs of the Amended Complaint, John Doe or Jane Doe were delegated supervisory -authority (id. ¶ 57), ‘caused [Mr. Gibbons’] obstruction charge' (id. ¶ 130), ‘conspired to cause the malicious prosecution* (id. ¶ 131), conspired with other officers (id. ¶ 146), were aware of certain facts and ‘engaged in conspiratorial activity' (id. ¶ 150), and ‘caused a criminal prosecution' (id. ¶ 178). These bare descriptions and conclusory allegations ‘do[ ] not equate to the real possibility that these unknown individuals’ identities will be revealed during discovery, and the Court will not enable a fishing expedition on account of Mr. Gibbons’ use of placeholders. See Fitzpatrick,
In the very last of forty-four footnotes, which is wholly unrelated to the appended text, Mr. Gibbons responds that “[n]ew Defendants can be brought in at least until the two year statute of limitations has passed, so if new evidence or discovery reveals that an unnamed Defendant participated in the malicious prosecution of Gibbons in 2013, he or she can still be added as a party.” (Pl.’s Resp., Doc. 44, at 25 n.44.)- Mr. Gibbons’ argument is unresponsive to the Eleventh Circuit’s clear standards for fictitious-party pleading.
B. Mr. Gibbons Cannot Sustain Any Claims Against Defendants in Their Official Capacities
Defendants argue that the Board of Regents and any of its agents sued in their official capacities are entitled to immunity under the Eleventh Amendment from claims for monetary damages and otherwise are not “persons” for purposes of § 1983. (Defs.’ Br. at 3-5.) Mr. Gibbons failed to respond to Defendants’ clearly identified argument on this issue, which indicates that he does not oppose dismissal on these grounds. See LR 7.5, SDGa.
Indeed, in this case, Mr. Gibbons’ § 1983 claims against Defendants in their official capacities are barred by the Eleventh Amendment. The Eleventh Amendment bars suit against a state brought' by both citizens of another state and the state’s own citizens. McClendon v. Ga. Dep’t of Cmty. Health,
Moreover, in order to succeed on a § 1983 claim, “a plaintiff must show that he or she was deprived of a federal right by a .person acting under color of state law.” Griffin v. City, of Opa-Locka,
C. Mr. Gibbons Failure to Comply with the GTCA Bars His State Law Claims
The GTCA provides for a limited waiver of the State’s sovereign immunity. O.C.G.A. § 50-21-23(b) (“The state waives its sovereign immunity only to the extent and in the manner provided in this article ....”); see also O.C.G.A. § 50-21-21(a)
In all civil actions brought against the state under this article, to perfect service of process the plaintiff must both: (1) cause process to be served upon the chief executive officer of the state government entity involved at his or her usual office address; and (2) cause process to be served upon the director of the Risk Management Division of the Department of Administrative Services at his or her usual office address.'
Id. The procedural components of the GTCA, like its other terms, are strictly construed. Green v. Cent. State Hosp.,
In this case, Defendants contend Mr. Gibbons did not meet the second requirement: the director of the Risk Management Division of the Department of Administrative Services has not been served at all. (Defs.’ Br. at 10 (citing Docs. 7, 8).) Mr. Gibbons’ failure to respond to Defendants’ clearly identified argument on this point again indicates that he does not oppose dismissal on these grounds.
Failure to serve the director of the Department of Administrative Services, Risk Management Division precludes compliance with the condition precedent to waiver of sovereign immunity and renders void Mr. Gibbons’ action such that the statute of limitations is not tolled.
The statute of limitations expired on Mr. Gibbons’ state law claims on March I, 2014 (Claims X—XIV based on Mr. Gibbons’ March 1, 2012 arrest) and July II, 2015 (Claim XV based on Mr. Gibbons July 11, 2013 acquittal). See O.C.G.A. § 50-21-27(c). When service is accomplished after the statute of limitation expires, as would be the case here, the timely-filed complaint tolls the statute only upon a showing that the plaintiff acted reasonably and diligently in effecting proper service as quickly as possible. Curry v. Georgia Dep’t of Corr.,
D. Defendants’ 12(b)(6) Challenge to the Federal Counts
1. Counts I through V: Unlawful Stop, False Arrest, and Excessive Force
All Defendants except Officer Martin seek dismissal of Counts I through V for failure to state a claim upon which relief can be granted.
To harrow down this task, the Court first DISMISSES Counts II and III against Chief McBride, Supervisors-Black and Maxwell, POS Turner, and Officer Skinner for failure to state a claim. Count II contends Mr. Gibbons’ arrest for obstruction lacked probable cause and that “it is obvious that an officer will need to -be trained to not make the unlawful stop in the first place in order to avoid a false arrest for perceived obstruction.” (Am; Comply 89.) Stripping away Mr. Gibbons’ conclusory allegations (id. ¶¶ 89, 92, 93, 94), there are no well-pleaded facts to support a supervisory liability claim of any kind against Chief McBride, Supervisors Black and Maxwell, POS Turner, or Officer Skinner related to the obstruction arrest. Moreover, Officer Martin’s alleged disagreeable disposition (id. ¶¶ 90, 91) simply is not a matter of constitutional concern.
Count III is based on Mr. Gibbons’ assertion that Officer Martin did not have probable cause to make the challenged traffic stop or the arrest for- obstruction, and accordingly could not use any. degree of force. (Am.Compl.¶ 100.) “Under this Circuit’s law[, however,] ... a claim that any force in an illegal stop or arrest is excessive is subsumed in the illegal stop or arrest claim and is not a discrete excessive force claim.” Bashir v. Rockdale Cnty.,
That leaves Count I, as well as Counts IV and V, which Mr. Gibbons frames in the alternative to Count III if the Court later finds that Officer Martin made a lawful arrest for either misdemeanor or' felony obstruction. As the Court did above, stripping away Mr. Gibbons’ conclusory allegations, the remaining counts appear to hinge only on the following:
(1) Defendants McBride, Black, and Maxwell, based on position and rank, are plausibly supervisors who had the responsibility or had been delegated the responsibility to correct, train, or retrain officers who deprive citizens of constitutional rights, even though it is also plausible that with respect to McBride, Black and Maxwell they did not have that responsibility or delegated it to one of the other Defendants including John or Jane Doe (Am. Compl. ¶ 57 (emphasis added));
(2) Defendant Skinner is plausibly a direct supervisor of Martin based on his signature as Martin’s supervisor on a Taser use of force report concerning an incident on 09-09-11, even though it is also plausible that Skinner is not Martin’s direct supervisor because John or Jane Doe is his supervisor” (Id. ¶ 57);
(3) Officer Martin stopped Mr. Gibbons in September 2010 solely for having a paper tag and the charges ultimately were dismissed, facts his supervisors “must have known” (Id. ¶¶44, 58-62);
(4) During the September 2010 traffic stop, Officers Martin and Skinner cuffed Mr. Gibbons so tightly that his wrists bled (Id. ¶ 36);
(5) Officer Martin was not sanctioned or punished as a result of the September 2010,traffic stop (Id. ¶45);
(6) Officer Martin’s testimony during Mr, Gibbons’ criminal trial on the March 2012 obstruction charge revealed that “GRU officers regularly pulled over cars because they had a paper tag* without more, making the citizen produce paper and often charging them with improper registration or no tag” (Id. ¶ 47 (empha-, sis added));
(7) “Before [Officer] Martin’s 2012 stop of Gibboná, none of the Defendant Supervisors ... trained or informed Martin that a paper tag without more does not authorize him to conduct a traffic stop” (Id. ¶ 56);
(8) “[B]efore March 1, 2012, Gibbons [sic] had numerous encounters with citizens revealing a tendency to Overreact and fail to reasonably communicate with citizens, that Martin caused to escalate to the point where he unlawfully justified his use of force” (Id. ¶ 91);
(9) “Defendant Supervisors ... knew ... of [Officer] Martin’s tendency to overreact and fail to reasonably communicate, yet failed to take corrective action including either training, transferring ,or terminating him, as shown by [Officer] Martin’s continued employment” (Id. ¶ 94);
(10) “[POS] Turner who had had no training relative to conducting an investigation found nothing wrong with [Officer] Martin’s actions during the 2012 stop of Gibbons, despite the several policy violations readily discernible from [Officer] Martin’s admissions and the video of the incident” (Id:. ¶ 108);
*1364 (11) “[POS] Turner incompetently believed [Officer] Martin’s story about inadvertently pulling the trigger by failing to compare [Officer] Martin’s story to the video of the incident” (Id. ¶ 111);
(12) “[POS] Turner passed on her finding, that [Officer] Martin did nothing wrong in the challenged accident, to the chief of the entire department, Chief McBride, who reviewed it and did not object” (Id. ¶ 114); and
(13) “[u]pon information and belief, [Officer] Martin has prior incidents of use of the taser that is or could be excessive, based on the high frequency of. use” (Id. ¶ 115).
Mr. Gibbons does not allege that Chief McBride, Supervisors Black and Maxwell, Officer Skinner, and POS Turner personally participated in or otherwise ordered the unlawful stop, false arrest, or use of excessive force in March 2012. Thus, from the allegations above and Mr. Gibbons’ briefs, the Court understands Mr. Gibbons to claim that these Defendants did nothing by way of training or supervision to ensure that Officer Martin no longer (1) initiated stops solely on the basis of a paper tag or (2) used excessive force—specifically, “excessive tasing”—in carrying out stops or arrests. Because Mr. Gibbons’ Fourth Amendment claims are asserted against these Defendants in their capacity as supervisors, the Court will assume—without deciding—that Officer Martin violated Mr. Gibbons’ Fourth Amendment rights. See Dalrymple,
a. The Legal Standard for Supervisory Liability Claims
It is well-established that supervisors are not subject to § 1983 liability under theories of respondeat superior or vicarious liability. Keith v. DeKalb Cnty., Ga.,
Mr. Gibbons’ claims for relief in Counts I and Counts IV/V—that Chief McBride, Supervisors Black and Maxwell, Officer Skinner, and POS Turner failed to adequately train or supervise Officer Martin—implicates a different, albeit very similar, rule: “under § 1983, a supervisor can be held liable for failing to train his or her employees only where the failure to train amounts to deliberate indifference to the rights of persons with whom the officers come into contact.” Keith,
b. Analysis
As a preliminary matter, the Court DISMISSES Mr. Gibbons’ supervisory liability claims against Supervisors Black and Maxwell, Officer Skinner, and POS Turner. With respect to Supervisors Black and Maxwell and Officer Skinner, Mr. Gibbons essentially alleges that because of their titles, they “must have known” about the (1) “regular practice” of stopping vehicles based on paper tags, (2) internal affairs complaints filed against Officer Martin, and (3) dismissal of Mr. Gibbons’ citation in 2010. (Am. Compl. ¶¶ 59-61 (emphasis added).) The only allegations in relation to Officer Martin’s use of excessive force that involve these Defendants are wholly conclusory. (See Am. Compl. ¶ 116 (“Defendant supervisors ... are liable under § 1983 for the deprivation of Gibbons’ Fourth Amendment right as claimed in ¶ 113.”); ¶ 119 (“Defendant supervisors ... proximately caused due to deliberate indifference the challenged excessive force by failing to train Martin how to appropriately use the taser despite Martin’s prior history of excessive taser use.”); ¶ 122 (“Defendant supervisors ... are liable under § 1983 for the deprivation of Gibbons’ Fourth Amendment right as claimed in ¶ 121).)
Simply, Mr. Gibbons “alleges nothing about the significance of [these Defendants’] titles, their individual roles .,., their personal interactions or familiarity with [Officer Martin], their length of service, their management policies, or any other characteristics that would bear on whether they knew about [or] were deliberately indifferent to [Officer Martin’s] conduct and the risk he posed.” See Franklin,
Unlike Supervisors Black and Maxwell and Officer Skinner, Mr. Gibbons’ does not allege outright that POS Turner was a supervisor. Rather, Mr. Gibbons asserts that Chief McBride appointed POS Turner to undertake the internal affairs investigation of Officer Martin’s conduct in 2010 and 2012, POS Turner had no training respective to internal investigations, and that Chief McBride previously selected a parking attendant to carry out such work. (Am. Compl. ¶¶ 39-41, 108 111.) The only other relevant, non-conclusory allegations are that POS Turner passed on her findings to Chief McBride and Chief McBride ratified those findings. (Id. ¶¶44, 114, 118.) Thus, based on the fact that POS Turner investigated Officer Martin, Mr. Gibbons contends POS Turner “was deliberately indifferent to- the need to train Martin, or cause Martin to be trained by the appropriate supervisor, that a paper dealer tag,- without more; does not authorize a traffic stop” and “proximately .caused due to deliberate indifference the challenged excessive force by failing to train Martin how to appropriately use the taser....” (Id. ¶¶62,119.)
The Court likewise-finds these allegations insufficient to state a claim. Not only does Mr. Gibbons fail to allege that POS Turner is a supervisor of Officer Martin, there are no other facts from which the Court could infer that POS Turner is in the GRU Police Bureau chain of command or had any authority to institute corrective measures or make recommendations with respect to Officer Martin’s behavior beyond passively reporting the results of her investigation to Chief McBride. The claims for supervisory liability against POS Turner, therefore, are also DISMISSED.
The Court now turns to' the last man standing, Chief McBride, and whether the Amended Complaint sufficiently alleges a causal connection between Chief McBride’s failure to supervise or train and the purported constitutional violations carried out by Officer Martin in March 2012. Viewing the facts in the light most favorable to Mr. Gibbons—as the Court must do—the Court examines the Amended Complaint to determine what allegations, if any, address Chief McBride’s (1) knowledge of Officer Martin’s allegedly unlawful practices at the point of his misconduct in March 2012 and (2) actions that raise an inference of indifference.
With respect to Mr. Gibbons’ failure to train claim surrounding the traffic stop, the Amended Complaint reflects that Officer Martin pulled Mr. Gibbons oyer twice, solely on .account of his paper dealer tag, over the course of -approximately eighteen months. Chief McBride knew that Officer Martin had -done so as a result of an investigation into the 2010 stop, carried out by POS Turner at the direction of Chief McBride and ultimately approved by Chief. McBride. Officer Martin also explained that GRU officers regularly pulled over cars.solely because they had a paper tag. Chief McBride then purposefully se
Similarly, with respect Mr. Gibbons’ failure to train claim surrounding Officer Martin’s use of excessive force, the Amended Complaint reflects that Officer Martin was involved in two incidents of force during traffic stops over the course of approximately eighteen months: Mr. Gibbons was cuffed too tightly by Officers Martin and Skinner in September 2010 and Officer Martin tased Mr. Gibbons five times in March 2012. Chief McBride' knew the September 2010 stop resulted in severe cuffing because of the'previously-described internal affairs complaint filed by Mr. Gibbons and investigation carried out at Chief McBride’s direction. Mr. Gibbons further alleges that before March 2012 Officer Martin had “numerous encounters with citizens revealing a tendency to overreact ... that Martin caused to escalate to the point where he unlawfully justified his use of force,” and he used his taser with alarmingly “high frequency,” statistics about which were reported. (Doc. 19 at 11 n.8). As in 2010, Chief McBride purposefully selected an incompetent investigator in 2012, whose results Chief McBride ratified, resulting in zero discipline.
Mr. Gibbons has not adequately alleged that there was a history of widespread prior abuse, as defined in Brown,
The Court concludes that Mr. Gibbons’ allegations.are narrowly sufficient to survive a motion to dismiss. This is the rare case in which the same conduct recurred. between the same citizen and the same, law enforcement officer, which was. investigated by the same individual at the .direction of the same superior, and this recurrence allegedly resulted in the violation of constitutional rights. Accepting the foregoing allegations as true, a reasonable jury could infer that Chief McBride—as the head of the department, initiator of the investigation into Mr. Gibbons’ specific internal complaint in September 2010, and ultimate décision maker with respect to approval of the resulting investigative report and the department’s response there
These findings, however, do not end the Court’s inquiry, as Chief McBride argues that he is entitled to qualified immunity. Although Chief McBride’s failure to train or supervise,- as alleged, could constitute a constitutional violation, the Court must still evaluate (1) whether his challenged acts or omissions were within his discretionary authority and (2) whether such a violation was clearly established at the time. Maggio v. Sipple,
i. Whether Chief McBride Acted Within His Discretionary Authority
“A government official proves that he acted within the purview of his discretionary authority by showing ‘objective cir
Here, Mr. Gibbons specifically alleges that Chief McBride was acting under color of state law in his capacity as the Chief of Police for the GRU Police Bureau and Director of Public Safety at all times relevant to the claims asserted against him. (See Am. Compl. ¶ 7.) As Defendants point out, “[supervising a subordinate officer, assigning an investigator to investigate a citizen complaint, investigating a citizen complaint ..., implementing a policy ..., and training officers ... are all job related functions” that Chief McBride carried out only as a result of his employment with and authority within the GRU Police Bureau. (Defs.’ Reply, Doc. 48, at 7-8.) Accordingly, the first prong of the qualified immunity inquiry is satisfied. See, e.g., Daniels v. City of Hartford, Ala.,
ii. Whether Chief McBride’s A Clearly Established Constitutional Law
The Supreme Court has emphasized that “determining whether a constitutional right was clearly established ‘must be undertaken in light of the specific context of the case, not as a broad general proposition.’ ” Vinyard,
“Furthermore, the [C]ourt cannot consider just any case law to decide if a right was clearly established. Only binding opinions from, the United States Supreme Court, the Eleventh Circuit Court of Appeals, and the highest court in the state where the action is filed, can serve as precedent, for this analysis.” Merricks v. Adkisson,
The salient question for this case, therefore, is whether the state- of the law on March 1, 2012 gave Chief McBride fair warning that his conduct was unconstitutional. There is no question that-at time of the incident at issue the law regarding, supervisory liability was clearly established. Cottone,
Mr. Gibbons further identifies a consensus of persuasive authority, including one ease from a sister court within this circuit, United States v. Wright, No. 3:06-CR-447-MCR,
Defendants’ sole response is that decisions issued by the Georgia Court of Appeals cannot clearly establish the law for purposes of qualified immunity under Marsh,
Exact factual identity with a previously decided case is not required so long as the unlawfulness of the conduct is apparent from the pre-existing law. Coffin,
Second, in context of the supervisory claim arising out of Officer Martin’s use of excessive force, the Eleventh Circuit has “previously noted that ‘generally no bright line exists for identifying when force is excessive.’” Jay,
Mr. Gibbons has fundamentally confused the burdens at hand. It is his duty to come forward with argument that qualified immunity is not appropriate with respect to Officer Martin’s taser use, which he has not done. Skop v. City of Atlanta, Ga.,
2. Count VI—First Amendment Retaliation Against Officer Martin
In Count VI, Mr. Gibbons claims Officer Martin violated his rights under the First
To survive a motion to dismiss based on retaliation for exercising rights under the First Amendment, Mr. Gibbons must allege facts establishing (1) “his speech or act was constitutionally protected;” (2) he “suffered adverse conduct that would likely deter a person of ordinary firmness from engaging in such speech,” and (3) “there is a causal connection between the retaliatory actions and the adverse effect on speech.” Castle v. Appalachian Tech. Coll.,
The First Amendment affords the broadest protection to political expression, but also to the general rights of speech and to petition for redress. Abella v. Simon,
Defendants respond that Mr. Gibbons “never alleges any factual specifics about the nature of the [internal affairs] complaint.” (Defs.’ Br. at 22.) This argument is unavailing, especially given the very eomplaint at issue is likely in Defendants’ possession. Moreover, Defendants abandoned any challenge to the classification of Mr. Gibbons’ emergency phone call as “protected speech” when they faded to address it in their reply brief. Thus, the Court finds that Mr. Gibbons has alleged sufficient facts as to the first prong to withstand the motion to dismiss. See Abella,
To establish a causal connection, Mr. Gibbons must allege that his .protected conduct was a “motivating factor” behind Officer Martin’s alleged misconduct. Smith v. Florida Dep’t of Corr.,
L.Ed.2d 471 (1977). Mosley,
[o]nce the plaintiff has met his' burden of 'establishing that his protected conduct was a motivating factor behind any harm, the burden of production shifts to the defendant. If the defendant can show that he would have taken the same action in the absence of the protected activity, he is entitled to prevail ... on .summary judgment.
Mosley,
In conjunction with the burden-shifting formula, courts also consider the temporal proximity between a plaintiffs exercise of free speech and the adverse effect in gauging a causal connection. See Bumpus v. Watts,
The burden-shifting analysis, however, is not appropriate at the motion to dismiss phase. Johnson v. Conway, No. 1:13-CV-0524-RWS,
It is clear from the Amended Complaint that Mr. Gibbons alleges his 2012 arrest by Officer Martin the result of filing a complaint against Officer Martin in September 2010 and raising alarm about Officer Martin’s' subsequent stop in March 2012.
The Eleventh Circuit Court of Appeals has recognized in other retaliation contexts, however, that “if there [is] a significant time gap between the protected
The Court finds, at this stage, the allegations taken as a whole are sufficient to establish causation: Therefore, the Court DENIES Defendants’ motion as to this count. The Court will not address whether qualified immunity protects Officer Martin from liability as to this claim as he did not raise the defense in brief.
3. Count VII—Malicious Prosecution Against Chief McBride, POS Turner, and Officers Martin and Jackson
Although not readily decipherable from the allegations in Count VII, Mr. Gibbons appears to assert both a (1) standalone § 1983 claim for malicious prosecution against Officers Martin and Jackson, POS Turner and Chief McBride individually and (2) conspiracy to maliciously prosecute claim. {See Am. Compl. ¶¶ 131, 132, 138— 141, 146 (framing the claim as against “[t]wo or more of the Defendants” and individuals’ actions “as part of the conspiracy and plan”); Pl.’s Sur-Reply at 13 (“Assuming arguendo that the allegations of conspiracy—as, opposed to malicious or wrongful prosecution itself—have not been sufficiently plead, Claims VII and VIII asserting malicious prosecution and wrongful prosecution have still been plausibly plead against each of [the] Defendants.”).) The Court will address the conspiracy claim separately in Part III.D.4, infra.
The Eleventh Circuit has identified malicious prosecution as a violation of the Fourth Amendment and a viable constitutional tort cognizable under § 1983. Wood v. Kesler,
Tracking the required elements of the common law tort of malicious prosecution, Mr. Gibbons alleges that Officer Martin arrested him for obstruction. (Am. Compl.1ffl82.) Next he asserts that the March 2012 traffic stop, based solely on Mr. Gibbon’s paper dealer tag, was not supported by probable cause. (See id. ¶¶ 52, 54.) He further alleges that “[t]here was no probable cause to arrest [him] for obstruction” because he merely requested “to drive to a nearby, well-lit convenience store” and “rolled down his window a couple inches, sufficient for conversing with [Officer] Martin and exchanging license and registration,” (Id. ¶¶ 68, 69; see also id. ¶¶ 82-88.) Additionally, Mr. Gibbons contends Officer Martin acted intentionally and maliciously, as the arrest was in retaliation for Mr. Gibbons’ 2010 internal affairs complaint and for “calling the Richmond County Police Department to complain” about the stop as it occurred. (Id. ¶¶ 124,128.) Mr. Gibbons was acquitted of obstruction on July 11, 2013. (Id. ¶ 135.) Mr. Gibbons also complains that he “was required to hire counsel to defend himself’ at great expense and “suffered mental anguish and distress as a result of being wrongfully prosecuted.” (Id. ¶¶ 133, 134.) Second, assuming Mr. Gibbons’ version of events at this juncture, he also has shown a Fourth Amendment constitutional violation for his seizure without arguable probable cause. Thus, the Court finds that Mr. Gibbons adequately states a claim for malicious prosecution against Officer Martin.
As to the other Defendants, Mr. Gibbons appears to contend they “continued” the prosecution against him by submitting false evidence and, as to Chief McBride, pursuing the charge even after acquiring knowledge that it was bogus. (See Pl.’s Resp. at 14.) Williams v. Miami-Dade Police Dep’t,
The Amended Complaint, however, is bereft of factual allegations implicating Chief McBride and POS Turner, The sole allegation against POS Turner under Count VII is that her “findings .., covered Up Martin’s policy Violations” and his lies. (Am.Compl. ¶ 142.) Elsewhere in the Amended Complaint, he contends repeatedly that. POS Turner was incompetent “and/or” with “actual evil motive, decided to help Martin cover up the purposefulness of his third, fourth, and fifth pull of the taser trigger, ” not the propriety of the obstruction charge, (Id. ¶¶ 108, 111, 112.) Mr. Gibbons argues that “Turner’s finding that Martin did nothing wrong in the 2012 incident ... gives rise to an inference that Turner agreed with Martin to maliciously prosecute Plaintiff by passing on to the prosecutor fabricated evidence under the guise of an investigatory finding.” .(Pl.’s Resp. at 14.) Notwithstanding that Mr. Gibbons injected this last “fact”—POS Turner’s connection to or interaction with the prosecutor—into the argument without pleading it, incompetently. carrying out an investigation, does, not, without more, give rise to the inference that POS Turner improperly influenced the decision to prosecute Mr. Gibbons for obstruction or acquired knowledge that the charge against Mr. Gibbons was inappropriate and failed to speak up. Simply put, there is no allegation in the Amended Complaint that would support a finding of malice.
Similarly, Mr. Gibbons alleges in Count VII that Chief McBride “reviewed without objection” POS Turner’s findings, did not correct them, and then allowed her to testify about her findings. (Am. Compl.lffl 114, 143, 144.) He argues that these acts “give[ ] rise to the inference that he informally agreed with Turner to maliciously prosecute Plaintiff.” (PL’s Resp. at 14.) The Court comes to the same conclusion with Chief McBride as it did with POS Turner: in the absence of any allegations that Chief McBride discovered, information that exculpated Mr. Gibbons and concealed it, Mr. Gibbons’ inferences present far too great of a leap. Cf. Diaz-Martinez v. Miami-Dade Cnty., No. 07-20914-CIV,
Accordingly, Defendants’ motion to 'dismiss this claim-is GRANTED as to Chief McBride and POS Turner. The Court will hot address whether qualified immunity protects Officer Martin from liability as to this claim as he did not raise the defense in either brief. Nor will the Court address Officer Jackson’s claim of qualified immunity. Defendants merely invoke Officer Jackson’s name in the first sentence of two paragraphs setting forth the legal standard for qualified immunity. (Defs.’ Br. at 23.) Their subsequent argument about whether Defendants’ acts were within their discretionary authority does not address Officer Jackson’s specific actions— here, fabricating evidence or presenting false testimony—but rather the conduct of GRU Police Bureau supervisors, i.e. investigating citizen complains, assigning investigators to carry out such investigations, implementing policies, training officers, etc. (See Defs.’ Reply at 8.) The Court, therefore, DENIES Defendants’ motion to dismiss Mr. Gibbons’ malicious prosecution claim against Officers Martin and Jackson.
To establish a conspiracy claim under § 1983, a plaintiff must .allege three elements: “(1) a violation of [his] federal rights; (2) an agreement among the Defendants to violate such a right; and (3) an actionable -wrong.” Hoelper v. Coats, No. 8:10-CV-01324,
The Eleventh Circuit has explained that “the linchpin for conspiracy is agreement, which presupposes communicátion.” Bailey v. Bd. of Cnty. Comm’rs of Alachua Cnty.,
Here, Mr. Gibbons alleges that Chief McBride, Officers Martin and Jackson, and POS Turner conspired to facilitate his prosecution for . obstruction after the March - 2012 traffic stop. (Am. Compl. ¶ 131.) Specifically, he claims that Officer Martin lied about engaging Mr. Gibbons in dialogue before he deployed the taser (id. ¶ 137) and Mr. Gibbons rolling up the window on his hand. (id. 11138). According to Mr.. Gibbons, Officer Jackson lied about there being no tag whatsoever on Mr. Gibbons’ car (id. ¶ 140) and Mr. Gibbons flashing Officer Martin the bird immediately prior to the - stop (id. ¶ 139). Mr. Gibbons also asserts that Officer Turner investigated the March 2012 stop and “incompetently believed” Officer Martin by failing to review the video evidence or with “evil motive” “decided- to- help Martin cover, up the purposefulness of’ the third, fourth, and fifth tasings. (Id. ¶ 111.) Finally, Officer McBride reviewed Officer Turner’s investigation without’ objection. (Id. ¶143.) All in all, these’ Defendants executed a “plan” “to cause'the malicious prosecution of Mr. Gibbons” (id. ¶ 131), “to cover up [Officer] Martin’s misconduct” (id. ¶¶ 137-42), and to. “chill protected First Amendment activity” (id. ¶¶ 158) or “prevent ... a subsequent civil rights case against any Defendant” (id.).
Defendants contend that Mr. Gibbons failure “to identify specific facts plausibly
The Court, however, does not find this deficiency to be dispositive at the motion to dismiss stage. Indeed, that the above-mentioned officers reached an agreement to violate Mr. Gibbons’ constitutional rights may be inferred, from their relationship as members of the GRU Police Bureau and the totality of their conduct related to the arrests, investigations, and prosecutions. The chronology of events and the commonality of actors between the September 2010 and March 2012 stops are sufficient, for now, to state a circumstantial claim by the slimmest of margins that the officers within the GRU Police Bureau were working in concert with one another to prosecute Mr. Gibbons in retaliation for exposing officer misconduct.
Defendants nevertheless counter that the intracorporate conspiracy doctrine bars Mr. Gibbons’ conspiracy claims. (Defs.’ Br. at 13-14.) “The intracorporate conspiracy doctrine holds that acts of corporate agents are attributed’ to the corporation itself, thereby negating the multiplicity of actors necessary for the formation of a conspiracy.” Grider,
Defendants are law enforcement officers with the GRU Police Bureau. Mr. Gibbons does not allege that, outsiders are involved. The subject of their alleged conspiracy—prosecution of Mr. Gibbons by making a false obstruction charge—involves job-related functions well within their scope of employment as police officers notwithstanding the purported constitutional infirmity of their conduct: “law enforcement officers are empowered precisely to prosecute violations of law.”
The Eleventh Circuit, however, has enunciated, but not fully adopted three exceptions to the doctrine. Grider,
Mr. Gibbons invokes the first exception in brief, although nowhere in the Amended Complaint does he allege that the conduct at issue here could give rise to criminal charges against Defendants. A complaint may not be amended by briefs in opposition to a motion to dismiss. Huls v. Llabona,
In his response brief, Mr. Gibbons, argues that Defendants’ conduct violated 18 U.S.C. § 1512, which prohibits witness tampering, and the criminal fraud conspiracy provisions of 18 U.S.C. § 371. (Pl.’s Resp. at 15.) 18 U.S.C. § 1512(b)(1) makes it a crime to “knowingly use[ ] intimidation ..or corruptly persuade[ ] another person ... with intent to ... influence the testimony of any person in an official proceeding.” Id. (emphasis added). As the Court previously mentioned, Mr. Gibbons alleges no facts in the Amended Complaint to support 18 U.S.C. § 1512(b)(l)’s application. That Defendants purportedly lied about various facts or ratified subpar internal investigations does not give rise to the inference that each of them intimidated or corruptly influenced the other to testify falsely. Moreover, the “official proceeding” about which Mr. Gibbons complains was not “before a judge’ or court of the United States,” Congress, a federal agency, or insurance regulators as required by the statute. 18 U.S.C. § 1515(a)(1) (emphasis added).
18 U.S.C. § 371 makes it unlawful “to commit any offense against the United States, or to defraud the United States, or
As Mr. Gibbons does not address the other two exceptions to the intracorporate conspiracy doctrine, neither will the Court. Defendants’ motion to dismiss Counts VII and VIII based on the intracorporate conspiracy doctrine is due to be GRANTED.
5. Count IX—“First Amendment Claim Under The Same Facts As The Fourth Amendment Claim For Unlawful Stop For Paper Tag”
Count IX of the Amended Complaint consists of a single paragraph:
The same facts underlying Claim I, incorporating herein ¶ 48-63, supports a claim for deprivation of a First Amendment right of Gibbons’ freedom of movement and travel, protected as a liberty interest under the Fourteenth Amendment, so one of the injuries caused by the Fourth Amendment deprivation is damages associated with the deprivation of the right to travel!
(Am.ComplA 154.) Unsurprisingly, by way of a footnote, Mr. Gibbons clarifies that “Claim IX of the complaint ... is only intended to add First Amendment freedom of movement arid right to travel damages to the Fourth Amendment false stop asserted in Claim I.” (PL’s Resp. at 2 n.5.) The Court has read Count IX—including .all that it purports to incorporate—and agrees with Defendants:' it is not clear what claim is being made or against whom. Mr. Gibbons received explicit instructions from the Court in its October 27, 2014 Order about the manner- in which he was expected to present his claims upon repléading (Doc. 38 at 8-9) and Count IX does not conform to those standards. The Court will not draft a conforming claim for him. Accordingly, the Court DISMISSES Claim IX. See Byrne v. Nezhat,
IV. CONCLUSION
Based on the foregoing, the Court GRANTS IN PART and DENIES IN PART Defendants’ Partial Motion to Dismiss. (Doc. 42.) The relevant holdings are as follows:
1. Counts I, II, IV, V, VI, and VII against Officer Martin in his individual capacity SHALL' PROCEED;18
2. Count I against Defendant McBride in his individual capacity, solely with respect liability for failure to train regarding unlawful stops, SHALL PROCEED; and
3. Count VII against Defendant Jackson in his individual capacity, as a standalone claim for malicious prosecution, SHALL PROCEED.
The remaining claims, as listed herein, are DISMISSED:
1. Counts I, II, III, IV, and V against Defendants Maxwell, Black, Skinner, and Turner;
2. Count I against Defendant McBride with respect to liability for failure to , train regarding excessive force;
3. Count III against. Defendant McBride;
4. Count VII, as a standalone claim for malicious prosecution, against Defendants McBride and Turner;
*1383 5. The conspiracy claims identified in Counts VII and VIII as to all Defendants;
6. Counts IX, X, XI, XII, XIII, XIV, and XV as to all Defendants;
7. All claims against John Doe or Jane Doe; and
8. All official capacity claims as to all Defendants, except for Phillip Wilheit, Sr. as Chair of the University System of Georgia Board of Regents.
The Court DIRECTS the Clerk to TERMINATE Defendants Maxwell, Black, Skinner, Turner, and John/Jane Doe as parties, as well as all deadlines and motions pertaining to them. Defendants SHALL have FOURTEEN DAYS to file an answer to Mr. Gibbons’ Amended Complaint. The parties SHALL submit a discovery plan within THIRTY DAYS of the date of this Order.
Finally, the Court CAUTIONS Mr. Gibbons’ counsel, John P. Batson, against using excessive footnotes to evade the 26-page limit for motions filed in this Court. See LR 7.1(a), SDGa. If he continues to use footnotes in this manner, his briefs will, at the Court’s discretion, either be rejected as unacceptable for filing or dismissed with leave to be refiled in proper form.
The Court further CAUTIONS Mr. Batson against abusive use of the surreply brief. Although this district’s local rule on the filing of supplemental briefs is permissive; Podger v. Gulfstream Aerospace Corp.,
ORDER ENTERED.
Notes
. The Medical College of Georgia is one of nine colleges and schools comprising GRU.
. It is worth emphasizing at this point that the Amended Complaint was drafted by a lawyer; Mr. Gibbons has at all times been - represented by legal counsel. Nevertheless, as Defendants point out, "[i]n many respects,, Plaintiff's recent effort is still a shotgun complaint.” (Defs.' Br. at 1 n.2.) Mr. Gibbons intersperses new facts throughout the body of the Amended Complaint. Instead of collectively referencing “Defendants’,’ or' "Defendant Supervisors” as he did before, Mr. Gibbons simply substitutes a list of all those individuals who are "plausibly supervisors” "even though it is also plausible that ... they did not have that responsibility.” (Am. Compl. ¶ 57.) Moreover, despite the Court’s instructions to the contrary (Doc. 38 at 8-9), Mr. Gibbons often includes multiple legal theories within a single count, which only becomes clear in brief. Thus, to the extent the Court’s interpretation is inconsistent with the intent of Mr. 'Gibbons’ counsel, the Court emphasizes that it is not required “to distill every potential argument that could be made based upon the materials before it.” Resolution Trust Corp. v. Dunmar Corp.,
. Mr. Gibbons also did not respond to Defendants' argument that he failed to comply with § 50—21—26(a)(4), which mandates that ‘[a]ny. complaint filed pursuant to [the GTCA] must have a copy of the notice of claim presented' to the Department of Administrative Services together with the certified, mail or statutory overnight delivery receipt or receipt for other delivery attached as exhibits.' Id. (emphasis added). Failure to cure this defect within thirty days after the State raises the issue ‘shall result in dismissal without prejudice.' Id. (emphasis added). Neither Mr. Gibbons’ original Complaint (Doc. 1) nor his Amended Complaint (Doc. 40) addresses in any form his compliance with the GTCA’s service and notice requirements. Mr. Gibbons had until March 31, 2012 to file the notice of claim and delivery receipt, which he did not do. Accordingly, § 50-21-26 (a) (4) provides an independent ground for this Court's DISMISSAL of Counts X, XI, XII, XIII, XIV, and XV.
. Mr. Gibbons’ broad claim, again buried in a footnote, that he 'was not required to comply with the notice provisions' of the GTCA because he is suing Defendants "as individuals acting outside of the scope of their official duties and employment” is wrong. (PL’s Resp. at 25 n.43.) The GTCA is the exclusive remedy for any tort committed by a state officer or employee. O.C.G.A. § 50-21-25(a). Those officers’ or employees' immunity is lost only "if it is proved that [their] conduct was not within the scope of his or her official duties or employment.” Id. (emphasis added). Mr. Gibbons may not sidestep the GTCA’s procedural requirements armed with nothing more than mere allegations that Defendants, who engaged in certain conduct as police officers, 'stepped outside' the scope of their authority. (PL’s Resp. at 22-25.) To hold otherwise would defeat the purpose of the GTCA and eviscerate the limited waiver of immunity.
. In 2007, the Georgia Supreme Court decided Georgia Pines Cmty. Serv. Bd. v. Summerlin, in which it held, without overruling prior precedent, that "[t] he service of process provision of the Georgia Tort Claims Act is procedural in nature, not jurisdictional."
. Officer Martin also does not claim entitlement to qualified immunity at this stage. (See Defs.' Br. at 3 n.4, 23-24.)
. Neither party addresses Mr. Gibbons’ claims against the Board of Regents, whose name appears only twice in the Amended Complaint. (Am. Compl. ¶¶ 8, 16.)
.The Court advises Mr. Gibbons' counsel to meditate over the Eleventh Circuit’s recent ' decision in Weiland v. Palm Beach Cnty. Sheriff's Office,
. The Court also DISMISSES Count III as asserted against Officer Martin on this same ground.
. "This is not to say that [Mr. Gibbons] cannot recover damages for the force used in his arrest” if the Court later finds the arrest was unlawful. Bashir,
. The Court recognizes that Officer Martin’s testimony about this practice is temporally problematic; it was elicited during Mr. Gibbons’ July 2013 criminal trial for obstruction, more than 15 months after the traffic stop during which Mr. Gibbons was tased. Although the testimony itself could not have put Chief McBride on notice of Officer Martin’s unlawful practices in time to prevent the Marbh 2012 stopy from the substance of the testimony, as alleged, a jury could infer that the practice was systematic and ongoing at the time of and before the March 2012 stop, and Chief McBride, therefore, knew or should have known about it.
. See Berry v. State,
. Mr. Gibbons makes no allegation that Officer Martin recognized him or his vehicle before initiating the purportedly unlawful traffic stop. (See Am. Compl. ¶ 67 ("When Martin could see Gibbons through the window, Martin knew that it was Gibbons, or within a few seconds of being at the window, before the tasering, when Martin heard Gibbons on the phone complaining about how GRU police have done this to him before, Martin knew it was Gibbons from the 2010 stop[.]”).)
. The Court notes, however, that Jones is an unpublished opinion, which is not controlling authority and is persuasive only insofar as its legal analysis warrants. Bonilla v. Baker Concrete Const., Inc.,
. Moreover, the allegations of'silence or inaction on the part of Chief McBride do not support the inference that he conspired with Officers Martin and Jackson and POS Turner to violate Mr. Gibbons'. constitutional rights. See Myers v. Bowman,
. See Bonner v. City of Prichard, Ala.,
. In a footnote, Mr. Gibbons argues that the intracorporate conspiracy doctrine does not
. As explained in Part III.D.l, supra, Count III against Officer Martin is subsumed into Counts.I and II.