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City Files Motion To Dismiss Lawsuit From Former Employee

The city of Carrollton on Wednesday filed a motion to dismiss a lawsuit filed against the city and three of its employees by former Cultural Arts Director Penny Lewis.

Lewis left her role with the city in May of 2016 following accusations of mishandling thousands of dollars in tax payer money. According to city documents, city officials agreed to not pursue criminal prosecution in exchange for her resignation.
 
Lewis' civil suit claims that her resignation and retirement occurred under the duress of being in the physical presence of an armed police officer... leading to the ultimatum that she resign and retire or face criminal charges; and, armed police officers "accosted Lewis and /or searched her office on three separate occasions." She claims  she was deprived of her property interests in her employment at CCAC. Lewis' suit also asserts that the defendants, individually and in concert, knowingly and intentionally, and maliciously engaged in conduct with the objective of defaming, libeling, and slandering Lewis.

The city's motion to dismiss contends that Ms. Lewis’s constitutional claims should be dismissed, because she resigned voluntarily from her position and failed to pursue any administrative remedies that were available to her.  the response claims that Lewis was made aware of the allegations against her, she was given five days to consider her options, but she elected to resign the very next day.

The motion denies unlawful seizure, claiming that Lewis was interviewed as part of an ongoing investigation into allegations of misconduct, was never arrested nor physically restrained, and she was free to leave following the interviews. 

The City is also seeking the dismissal of Ms. Lewis’s claims for libel, slander, and defamation.  "Among other things, the statements that are the subject of Ms. Lewis’s complaint were never “published” as required by law.  Rather, they were shared with City employees and volunteers, each of whom had reason to receive the information, " City Attorney, Chuck Connerly said.

Connerly said Ms. Lewis and her attorneys will have two weeks to respond to the motion, "...following which we would expect the court to rule on the motion in either late-summer or early-fall."

The entire motion to dismiss is posted below:

 
Case 3:17-cv-00061-TCB Document 18 Filed 06/28/17 Page 1 of 29
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
NEWNAN DIVISION

PENELOPE "PENNY" LEWIS,
Plaintiff,                                           CIVIL ACTION NO.
3:17-cv-61-TCB
v.
CITY OF CARROLLTON,
GEORGIA,

TIMOTHY GRIZZARD,
ELIZABETH "LIBBY" DUKE,
and GREGORY GUSTIN,

Defendants. 

MOTION TO DISMISS PLAINTIFF'S COMPLAINT AND MEMORANDUM OF LAW IN SUPPORT
 
 
Case 3:17-cv-00061-TCB Document 18 Filed 06/28/17 Page 2 of 29
COME NOW Defendants, City of Carrollton, Georgia, Timothy Grizzard, Elizabeth Duke and Gregory Gustin (collectively, "Defendants"), and hereby submit this Motion to Dismiss Plaintiff's Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, showing the following:
I.       INTRODUCTION AND SUMMARY
Plaintiff Penelope Lewis, a former employee for the City of Carrollton ("the City"), filed this Complaint on May 9, 2017, asserting ten (10) claims for relief. In Count I, Plaintiff alleges that the City, Grizzard, and Duke violated her constitutional rights to due process. (Compl. Till 91-100). In Counts II and III, Plaintiff alleges that the City, Duke, and Grizzard violated her constitutional rights to be free from unlawful seizure. (Id. ¶¶ 101-109). In Count IV, Plaintiff alleges that all Defendants conspired to deprive her of her constitutional rights. (Id. 1 110-116). In Counts V-VII, Plaintiff brings state law claims for (1) false imprisonment, (2) libel, slander, and defamation, and (3) conspiracy to commit libel, slander and defamation. (Id. 1 117-37). Finally, Plaintiff brings claims for punitive damages and attorneys' fees and costs in Counts IX and X. (Id. ini 138-43).
Defendants now file the instant Motion to Dismiss and respectfully submit that the allegations in the Complaint fail to state a plausible claim for relief against Defendants for the following reasons, which are discussed in detail below:
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  • Plaintiff's due process claim in Count I fails because her resignation was voluntary and because she has failed to allege that there were no remedies available to cure any alleged procedural deprivation;
  • Plaintiff's unlawful seizure claims in Counts II and III fail because her allegations do not give rise to an inference that Plaintiff was seized, and even if she were seized, any seizure was reasonable both in inception and scope;
  • Plaintiff's conspiracy claim in Count IV fails because there can be no conspiracy without underlying constitutional violations, and because Defendants are entitled to the intracorporate conspiracy defense;
  • The individual Defendants are entitled to qualified immunity for Counts I-IV;
  • Claims brought against the individual Defendants in their official capacities are redundant of Plaintiff's claims against the City;
  • Plaintiff's Claims against the City in all Counts fail under Monell;
  • The Court should decline to exercise supplemental jurisdiction over Plaintiff's state law claims in Counts V-IX;
  • Plaintiff's claims for defamation, libel, and slander and conspiracy to commit defamation, libel, and slander as alleged in Counts VII and VIII should be dismissed because the statements alleged in the Complaint were not "published," the individual Defendants are entitled to official immunity, and the Defendants cannot be liable for statements of employees; and
  • Plaintiff's claim attorneys' fees claim in Count X fails because she has not sufficiently alleged any underlying violations.
II.     ARGUMENT AND CITATION TO AUTHORITY
A.      Plaintiff's Due Process Claim (Count I) Fails Because Her Resignation Was Voluntary And Because She Failed To Allege That No Remedies
Were         Available         To          Cure         Alleged          Procedural
Deprivation

Plaintiff fails to plead factual allegations raising a right to relief above the speculative level and which allow the Court to draw the reasonable inference that the City, Duke, or Grizzard are liable. (Compl. rlf 91-100).
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1. Plaintiff Voluntarily Resigned. As an initial matter, Plaintiff's due process claim fails to allege facts plausibly suggesting her resignation was involuntary. The law generally presumes a resignation is voluntary, and the Eleventh Circuit has held that resignations can be voluntary "even where the only alternative to resignation is facing possible termination for cause or criminal charges." Hargray v. City of Hallandale, 57 F.3d 1560, 1568 (11th Cir. 1995) (resignation voluntary when plaintiff was free to leave before signing resignation statement; knew charges; knew allegations; never requested more time to decide; and did not request to speak with supervisor or attorney).
In Hargray, a former city employee sued the city alleging a violation of his property interest in continued employment with the city, but the Eleventh Circuit held that the plaintiff made a voluntary decision to resign from his position rather than submit to a criminal investigation, his resignation was therefore voluntary, and he was thus not deprived of any protected interest in his employment. Id. at 1572; See also Santandreu v. Miami-Dade Cty., No. 10-24616-CIV, 2011 WL 13136161, at *15 (S.D. Fla. Aug. 1, 2011), affd sub nom. Santandreu v. Miami Dade Cty., 513 F. App'x 902 (11th Cir. 2013) ("[T]he mere fact that he was forced to choose between two inherently unpleasant alternatives does not in itself mean that his resignation was submitted under duress."); Bell v. Metro. Atlanta Rapid Transit Auth., No. 1:10‑
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CV-1117-JEC, 2012 WL 4092509, at *7 (N.D. Ga. Sept. 17, 2012), affd sub nom. Bell v. Metro. Atlanta Rapid Transit Auth. (MARTA), 521 F. App'x 862 (11th Cir. 2013) (plaintiff voluntarily resigned even though he contended he chose to resign to prevent derogatory information being placed in his files, but defendants never affirmatively led plaintiff to believe investigation records would be kept secret if plaintiff resigned).
Courts consider five factors to determine whether a resignation was obtained by coercion or duress: (1) whether the employee was given an alternative to resignation; (2) whether the employee understood the nature of the choice; (3) whether the employee was given reasonable time to choose; (4) whether the employee was permitted to select the effective date of the resignation; and (5) whether the employee had the advice of counsel. Id. Here, Plaintiff fails to allege any facts whatsoever allowing this Court to draw the inference that her resignation was involuntary. Plaintiff's factual allegations demonstrate that she was told if she resigned, accusations of theft would not be made public and she would not be criminally charged. (Compl., ¶ 66). Grizzard allegedly told her the substance of the charges against her. (Id. at ¶ 67). Similarly, she alleges that Grizzard told her she had five days to prove her innocence, and she was even provided the option by Duke
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to call her resignation a retirement. (Id. at ¶ 68, 71). According to Plaintiff, she returned the next day to complete retirement papers. (Id. at ¶ 75).
Plaintiff also does not allege that she did not understand the nature of her choice, that she was not permitted to choose the effective date of her resignation, or that she did not have the opportunity to seek the advice of counsel. See Soloski v. Adams, 600 F. Supp. 2d 1276, 1307-1311 (N.D. Ga. 2009) (plaintiff resignation because fear of removal and being known as sexual harasser did not make resignation involuntary). Accordingly, Plaintiff's allegations show that her resignation was voluntary and, thus, the due process clause has not been implicated.
2. Plaintiff Failed to Utilize State Remedies To Cure Her Alleged  Procedural Deprivation. In McKinney v. Pate, 20 F.3d 1550, 1565 (11th Cir. 1994) (en banc), the Eleventh Circuit held that the availability of adequate state remedies, including Florida's certiorari statutes, barred the plaintiff's procedural due process claim. The Eleventh Circuit concluded that, even if the plaintiff's allegations were true, "no procedural due process violation occurred" in the presence of an adequate state remedy. Id. at 1564.
Subsequent Eleventh Circuit decisions and rulings by district courts within the Eleventh Circuit have held that a plaintiff cannot state a claim for violation of procedural due process unless the State refuses to provide the means to correct the
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alleged deprivation. See Cotton v. Jackson, 216 F.3d 1328, 1331 (11th Cir. 2000) (state's failure to provide adequate procedures to remedy otherwise procedurally flawed deprivation of a protected interest gives rise to federal procedural due process claim); Cochran v. Collins, 253 F. Supp. 2d 1295, 1304-05 (N.D. Ga. 2003) ("[A] plaintiff does not suffer a violation of his procedural due process rights unless and until the state refuses to make available a means to remedy the deprivation"); Jackson v. City of Stone Mountain, 232 F. Supp. 2d 1337, 1368 (N.D. Ga. 2002) ("As an alleged procedural due process violation, no constitutional violation takes place until the state refuses to provide a remedy"); Ezzard v. Eatonton-Putnam Water & Sewer Auth., No. 5:11-CV-505 CAR, 2013 WL 5438604, at *14 (M.D. Ga. Sept. 27, 2013) (plaintiff entitled to seek writ of mandamus to require board to hold hearing to remedy alleged deprivation and failure to pursue writ of mandamus barred procedural due process claim).
Here, Plaintiff includes no factual allegations suggesting that she attempted to avail herself of procedural remedies through the City or that she utilized the Georgia mandamus statute, O.C.G.A. § 9-6-20, to correct her alleged due process violation. Indeed, she makes no allegation that she attempted to appeal her alleged termination pursuant to any City policies. See Cotton, 216 F.3d at 1332 ("Because we believe that the writ of mandamus would be available under state law to [p]laintiff, and
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because we believe that mandamus would be an adequate remedy to ensure that [p]laintiff was not deprived of his due process rights, we conclude that [p]laintiff has failed to show that inadequate state remedies were available to him to remedy any alleged procedural deprivations.") (internal citations omitted).
B.               Plaintiffs Seizure Claims (Counts II and III) Should Be Dismissed
because Her Allegations Do Not Give Rise To An Inference She Was Seized, and Alternatively, the Allegations Demonstrate That Any Alleged Seizure Was Reasonable Both in Inception and Scope
1. Plaintiffs Allegations Demonstrate That She Was not "Seized." A claim that a government supervisor seized a public employee in violation of the Fourth Amendment must include allegations of circumstances that implicate more than the obligations arising from the employment relationship. Reyes v. Maschmeier, 446 F.3d 1199, 1204 (11th Cir. 2006). For example, workplace interactions can become seizures in circumstances only where a reasonable person would believe he or she was not free to leave. Id. The "free to leave" inquiry, however, is distinct in an employment situation because "when people are at work their freedom to move about has been meaningfully restricted . . . by the workers' voluntary obligations to their employers." INS v. Delgado, 466 U.S. 210, 218 (1984).
"[T]he possibility or even probability of adverse employment action—as opposed to physical detention—cannot enter [the] analysis as to whether employees
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in a particular case have been seized." Driebel v. City of Milwaukee, 298 F.3d 622, 642 (7th Cir. 2002) (internal quotations omitted). Likewise, the mere facts that a person is told she is under criminal investigation or that she does not flee her place of work when police officers arrive to investigate do not give rise to a seizure if other factors weigh against such a finding. Aguilera v. Baca, 394 F. Supp. 2d 1203, 1214, 1218 (C.D. Cal. 2005), affd, 510 F.3d 1161 (9th Cir. 2007) (no seizure when plaintiffs harshly told they were under criminal investigation by superior officer); Driebel, 298 F.3d at 642 (plaintiffs not seized when ordered to remain at work to be questioned; no force used; plaintiffs never handcuffed, physically restrained, or placed in holding cell; show of force distinctly benign; only two officers supervised plaintiffs; and supervision intermittent and not particularly intrusive); Reyes, 446 F.3d at 1205 ("Although Reyes claims that she felt like she was not able to leave the meeting, those claims are based in the supervisor-employee relationship and are therefore not indicators that something more had transformed the meeting into a Fourth Amendment seizure.").
Here, Plaintiff's allegations do not give rise to an inference that she was seized in violation of her constitutional rights. She first alleges that, on or about May 10, 2016, she was ordered into a classroom with only one police officer while Duke individually interviewed staff members in a separate room. (Compl., 1 43-44).
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According to Plaintiff, the "other staffers" in the classroom were told not to use telephones or speak to one another, but were permitted to leave the room to use bathroom facilities. (Id. at ¶ 44-45). Plaintiff alleges that the interviews took four hours, but that she was free to leave once the interviews were completed. (Id. at ¶ 46). On the second occasion, Plaintiff alleges that on or about May 26, 2016, she was ordered into a vacant classroom where she was told she had been under investigation, but that, if she resigned, she would not be criminally charged with theft. (Id. at TT 65-66). Plaintiff agreed to resign and was escorted to her office and to her car by Defendant Duke. (Id. at ¶¶ 68-69).
Like the plaintiffs in the cases cited above who were not "seized" for purposes of the Fourth Amendment, Plaintiff alleges she was told that an investigation was occurring, but no physical force was used. Nor was Plaintiff arrested or physically restrained. Plaintiff was permitted to leave the classroom to use the bathroom. The fact that the allegations in the Complaint describe a garden-variety employer investigation rather than a Fourth Amendment "seizure" of Plaintiff is demonstrated by the allegation that all Carrollton Cultural Arts Center ("CCAC") employees were instructed to go to the classroom and were each individually questioned by Duke. (Id. at ¶ 43). Plaintiff does not allege that the May 10, 2016 interviews or the May 26, 2016 meeting occurred outside of regular work hours. The May 26, 2016 meeting
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was a standard employee-employer meeting where Plaintiff was informed of the results of the City's investigation and was provided the opportunity to resign or retire, or be terminated and prosecuted. While Plaintiff alleges facts such as Grizzard and Duke using harsh tones, police presence, and that "other staffers" were not permitted to use their telephones or talk to one another, these facts are insufficient to give rise to an inference that Plaintiff was "seized."
2. The Alleged "Seizures" Were Objectively Reasonable. "[T]he mere fact that a seizure has occurred does not mean that a violation of the Fourth Amendment has [occurred]. A seizure violates the Fourth Amendment only if it was objectively unreasonable under the circumstances." Aguilera v. Baca, 394 F. Supp. 2d at 1214 (quoting Moreno v. Baca, 400 F.3d 1152, 1156 (9th Cir. 2005). Id. Moreover, a lesser "reasonableness" showing is sufficient where the seizure is connected to an internal, disciplinary investigation. See Myers v. Baca, 325 F. Supp. 2d 1095, 1108 (C.D. Cal. 2004).
In determining objective reasonableness, a court must determine whether a search or seizure within the Fourth Amendment is (1) justified at its inception, and (2) reasonably related in scope to the circumstances that justified it. O'Connor v. Ortega, 480 U.S. 709, 726 (1987). A search is "justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the
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employee is guilty of work-related misconduct," and "permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of . . . the nature of the [misconduct]." Id. (internal quotations omitted). This determination requires a balancing of the employee's privacy interests against the government's need for supervision, control, and efficient operation of the workplace. Id. at 719.
Reasonable grounds for questioning Plaintiff were present on May 10, 2016. Plaintiff alleges that Gustin caused Duke to believe that Plaintiff had intentionally failed to follow appropriate financial procedures for controlling taxpayer money. (Compl., ¶ 129). Plaintiff admits that Gustin made accusations to Duke about her, including that she was using funds in a change bag to pay Fitts' children for working as spotlight operators for a show, and that Duke relied on these statements. (Id. at Tili 51-53). Plaintiff admits that Fitts left the change bag containing approximately $40.00 in her desk, and that she "did not recall" this until later. (Id. at ¶ 37-38). Plaintiff alleges that Duke asked her for the change bag containing City funds, but Plaintiff could not find the bag when she was asked to retrieve it because the bag had "slipped behind the drawer." (Id. at ¶ 48). Plaintiff also admits to later finding the bag on or about May 10. (Id. at ¶ 48). That Plaintiff alleges her innocence does
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not make the grounds for suspecting Plaintiff unreasonable considering these other allegations.
There also were reasonable grounds for Grizzard and Duke to meet with Plaintiff on or about May 26. Plaintiff admits that she found $60.00 in her bottom desk drawer on or about May 24. (Id. at ¶ 63). She also admits that Grizzard, Duke, and a police officer met with her in a vacant classroom where Grizzard told her he had finished the exhaustive investigation wherein they interviewed all the witnesses who implicated Plaintiff for mishandling money. (Id. at ¶ 66). Clearly, Grizzard and Duke had reasonable grounds for concluding Plaintiff engaged in wrongdoing. Plaintiff even admits that "staff' had sold promotional items from a City theater production of Mary Poppins. (Id. at ¶ 67). Plaintiff was provided the opportunity to resign and not be criminally charged with theft. (Id. at ¶ 66). Plaintiff agreed to resign, was offered five days to prove her innocence, and was then escorted by Duke to her office and to her vehicle. (Id. at 1rIf 68-69).
In summary, Plaintiffs allegations concerning the investigation into the missing funds and the meeting regarding the results of the investigation demonstrate that both alleged seizures were reasonable in inception and scope.
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C. Plaintiff's § 1983 Conspiracy Claim (Count IV) Should be Dismissed
  1. There is no Underlying Constitutional Violation. Plaintiff asserts a § 1983 conspiracy claim against all Defendants, alleging the individual Defendants participated in a "conspiracy" to violate her constitutional rights. To prevail on such a claim, a plaintiff must plead not only a conspiracy, but also an actual deprivation of rights. Bendburg v. Dempsey, 909 F.2d 463, 468 (11th Cir. 1990). As discussed above, Plaintiff fails to plead a plausible claim for relief for constitutional violations under § 1983. Therefore, Plaintiff's claim that Defendants participated in a "conspiracy" to violate her due process rights and her right to be free from unlawful seizure should be dismissed.
  2. Intracorporate Conspiracy Doctrine Bars Plaintiff's Conspiracy Claim. The intracorporate conspiracy doctrine holds that acts of corporate agents are attributed to the corporation itself, which negates the multiplicity of actors necessary for the formation of a conspiracy. Grider v. City of Auburn, Ala., 618 F.3d 1240, 1261 (11th Cir. 2010). A corporation cannot conspire with its employees, and its employees, acting in the scope of their employment, cannot conspire among themselves. Id. See Rehberg v. Paulk, 611 F.3d 828, 854 (11th Cir. 2010) (intracorporate conspiracy doctrine barred § 1983 conspiracy claim against county employee); Denney v. City ofAlbany, 247 F.3d 1172, 1190 (11th Cir.2001) (applying
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intracorporate conspiracy doctrine to city, city fire chief, and city manager).
Thus, the individual Defendants herein cannot have conspired with the City to violate Plaintiff's constitutional rights. Furthermore, Plaintiff essentially admits that the employees were acting within the scope of their employment when they allegedly violated her constitutional rights. (Compl. ¶¶ 99, 103, 108) (actions were "taken pursuant to a policy and/or custom of the City of Carrollton.").
D. The Individual Defendants Are Entitled To Qualified Immunity
Qualified immunity shields government officials from liability to the extent that "their conduct does not violate clearly established . . . constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To meet this burden, Plaintiff must show that (1) these Defendants engaged in conduct which violated her rights and (2) that their conduct was prohibited by clearly established law. Plumhoff v. Rickard, 134 S. Ct. 2012, 2020 (2014). In evaluating whether Plaintiff has met her burden, the Court may exercise its discretion in determining which step of the analysis it should address first. Id.
As addressed above, Plaintiff fails to allege sufficient facts raising the right to relief above the speculative level as to her constitutional claims. Moreover, even if Plaintiff sufficiently pled a constitutional claim, she cannot cite authority which would have given the individual Defendants fair and clear warning that their conduct
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was a violation of clearly established law. A "materially similar" case decided by the Supreme Court, Georgia Supreme Court, or the Eleventh Circuit consists of cases where judicial precedent is tied to particularized facts. Terrell v. Smith, 668 F.3d 1244, 1256 (11th Cir. 2012).
To determine whether the law was clearly established, a court must look at whether the law at the time of the alleged action gave "fair and clear warning" to a reasonable person that his actions were unconstitutional. Hope v. Pelzer, 536 U.S. 730, 746 (2002). Clearly established law should not be defined at a "high level of generality" but rather, must be particularized to the facts of the case. White v. Pauly, 137 S. Ct. 548, 552 (2017); See Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1306-08 (11th Cir. 2006) ("The Fourth Amendment's general proscription against unreasonable seizures seldom puts officers on notice that certain conduct is unlawful under precise circumstances", and the qualified immunity shield is usually only lifted on rare occasions where the conduct "lay so obviously at the very core of what the Fourth Amendment prohibits that the unlawfulness of the conduct was readily apparent . . . .") (internal citations omitted). Given the cases addressed above regarding Counts I-IV, the individual Defendants are entitled to qualified immunity for these claims.
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  1. Plaintiff's Claims against the Individual Defendants In Their Official Capacities Are Redundant Of Her Claims Against the City
To the extent Plaintiff attempts to sue the individual Defendant in their official capacities, an official capacity suit against a public official is the same as a suit against a governmental entity itself and is redundant. See Kentucky v. Graham, 473 U.S. 159, 166 (1985). The Eleventh Circuit has recognized that official capacity claims against local government officials and multiple governmental entities are superfluous and should be dismissed where, as here, the government itself is a party to the lawsuit. Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991); Mighty v. Miami-Dade Cty., 659 F. App'x 969, 973 (11th Cir. 2016) (official capacity claim really claim against Miami-Dade County, also a defendant, and official capacity claim redundant).
  1. Plaintiff Fails To Allege Sufficient Facts Against The City Under Monell
Plaintiff alleges that the City is liable for the violations of her Constitutional rights (Counts I-III), but ignores that the Supreme Court "has placed strict limitations on municipal liability under [Section] 1983." Grech v. Clayton County, 335 F.3d 1326, 1329 (11th Cir. 2003). A local government may be held liable only when a constitutional violation was inflicted pursuant to the government's policy or custom. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 694 (1978).
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To state a § 1983 Monell claim, Plaintiff must plead: (1) that her constitutional rights were violated; (2) that the City had a custom or policy that constituted deliberate indifference to that constitutional right; and (3) that the policy or custom caused the violation. McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). "Thus, [the] first inquiry in any case alleging municipal liability under § 1983 is the question whether there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation." City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989); Monell, 436 U.S. at 694; Bell v. City of Albany, 210 Ga. App. 371 (1993). A plaintiff must "identify [the] policy or custom that caused a constitutional violation." Harvey v. City of Stuart, 296 F. App'x 824, 826 (11th Cir. 2008) (municipality dismissed for failure to identify policy or custom). "Vague and conclusory allegations" are insufficient. Id.
Applying these standards, Plaintiff has alleged only in the most conclusory manner that the individual Defendants acted pursuant to a "policy and/or custom." (Compl. Irlf 99, 103, 108). Notably, Plaintiff does not identify the policy or custom at issue, and does not plead any facts showing a link between these non-identified policies or customs and her alleged constitutional deprivations. Nor does she allege more than single incidents of allegedly unconstitutional activities. Craig v. Floyd Cty., Ga., 643 F.3d 1306, 1310 (11th Cir. 2011) ("[p]roof of a single incident of
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unconstitutional activity is not sufficient to impose liability against a municipality."); City of Oklahoma City v. Tuttle, 471 U.S. 808, 824 (1985); McDowell, 392 F.3d at 1290 (generally a persistent and wide-spread practice must be shown). As such, Plaintiff's claims against the City should be dismissed.
G. The Court Should Decline to Exercise Supplemental Jurisdiction Over Any Claims Under Georgia Law (Counts V-IX)
Since Plaintiff has failed to sufficiently plead facts giving rise to a claim for violation of her constitutional rights, Defendants respectfully request that this Court decline to exercise its supplemental jurisdiction over Plaintiff's state law claims. Pursuant to 28 U.S.C. § 1367(c), a district court may decline to exercise supplemental jurisdiction over a claim if it has dismissed all claims over which it has original jurisdiction. The Eleventh Circuit has "encouraged district courts to dismiss any remaining state claims when ... the federal claims have been dismissed prior to trial." Raney v. Allstate Ins. Co., 370 F.3d 1086, 1089 (11th Cir. 2004).
H.   Plaintiff's State Law Claims For Libel, Slander, and Defamation Should
be Dismissed
1. Plaintiff Fails To Plead Allegations Allowing The Court to Draw The  Reasonable Inference That Defendants Are Liable for Libel, Slander, Defamation And Conspiracy Because The Alleged Statements Were Not Published. Georgia courts have long recognized an exception to the rule that a
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defamatory statement is published: "when the communication is intracorporate or between members of unincorporated groups or associations, and is heard by one who, because of his/her duty or authority has reason to receive the information, there is no publication" of the allegedly defamatory statements. Fink v. Dodd, 286 Ga.App. 363 (2007); Koly v. Emney, 269 F.App'x 861, 864 (11th Cir. 2008); Yancey v. Clark Atlanta University, 2010 WL 1265181, at *2-3 (N.D. Ga. 2010).
Here, Plaintiff alleges that Gustin caused Duke to believe that Plaintiff intentionally failed to follow appropriate financial procedures for controlling taxpayer money. (Compl. at ¶ 129). Yet, Plaintiff only vaguely and partially refers to statements made by Gustin during his investigatory interview with Duke. (Id. at 1 51, 53). Plaintiff also refers to a letter sent by Mr. Maierhofer, who is not a Defendant, stating that proper procedures in dealing with finances "were not followed and the handling of taxpayer's money was inappropriate." (Id. at ¶ 76). This letter was sent to registered volunteers of the City. Id. Plaintiff also alleges that Erica Studdard, who is also not named as a Defendant, made slanderous remarks to the Theatre Board of Directors and Art Center Director. Id. at ¶ 86. Grizzard also purportedly told volunteers that the arts department falsely reported being in the black each year, but did not mention Plaintiff in this statement. (Id. at ¶ 87).
Each of these persons to whom Gustin, Duke, and Grizzard allegedly
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communicated with concerning Plaintiff had a reason to receive the information regarding the results of the investigation into the Carrollton Cultural Arts Center. See McClesky v. The Home Depot, Inc., 272 Ga.App. 469, 473 (2005) (supervisors have reason to receive allegedly defamatory information regarding employee). Thus, Plaintiff's claim for libel, slander and defamation (Count VII) and conspiracy (as there is no underlying tort (Count VIII)), must be dismissed.
2. The Individual Defendants are Entitled To Official Immunity. The doctrine of official immunity provides that, while a public officer or employee may be personally liable for negligent ministerial acts, he or she may not be held liable for his discretionary acts unless they act with actual malice or with actual intent to cause injury in the performance of their official functions. Peterson v. Baker, 504 F.3d 1331, 1339 (11th Cir. 2007) (citing Gilbert v. Richardson, 452 S.E.2d 476, 483 (Ga. 1994) and Adams v. Hazelwood, 520 S.E.2d 896, 898 (Ga. 1999)).
A ministerial act is "simple, absolute, and definite" and requires that the actor merely exercise a specific duty. Johnson v. Gonzalez, 478 S.E.2d 410, 411-12 (Ga. Ct. App. 1996). A discretionary act, conversely, "calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed." Id. Conducting investigations and deciding on a course of action based on the
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conclusions of the investigation are discretionary acts. Payne v. Twiggs County School District, 232 Ga. App. 175, 177-78 (1998) (assistant principal and bus driver entitled to official immunity when required to assess credibility of allegations of threats to student on bus and make judgment call as to course of action).
The doctrine of official immunity applies with full force to defamation claims. Smith v. Lott, 317 Ga.App. 37, 44 (2012). In Smith, the former city finance director asserted a defamation claim against the city manager for statements made concerning her performance and termination—including statements accusing the plaintiff of criminal conduct. Id. at 39-42. Some employees reported that the plaintiff required them to perform personal errands and favors for her during regular working hours and in city vehicles. Id. at 40-41. The plaintiff alleged that the city manager told an assessor the plaintiff was guilty of the crime of "theft of services" and that this statement was repeated in a published report. Id. at 45. The plaintiff also asserted that the city manager stated in a public meeting that "after realizing there existed clear violations of criminal law . . . he saw that he had to transition to greater level." Id.
The city manager was entitled to official immunity as to these and other statements. Id. at 47. The court explained that the plaintiff failed to show a deliberate intention to cause harm to the plaintiff because the city manager hired the assessor
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to investigate, "and, in doing so, he communicated to the assessor his concerns and objectives for an investigation." Id. at 46. The meeting statements were the product of "reasoned conclusions reached by [the defendant] from personal observations, careful deliberation, and as a consequence of information learned from an assessment . . . and not a deliberate intention to do wrong or intent to cause the alleged harm . . . ." Id.
Here, Plaintiff alleges statements made by Grizzard, Duke, and Gustin during the City's investigation into CCAC financial procedures and accounting. The investigation and statements made therein were clearly discretionary acts within the scope of their duties as City Manager, Human Resources Director, and CCAC employee, respectively. Duke is alleged to have investigated allegations of improper handling of City funds, and the conclusions she reached required personal judgment and deliberation. Her investigation also entailed examining facts, reaching reasoned conclusions, and acting on facts and conclusions in a way not specifically directed.
The Complaint is devoid of anything other than conclusory allegations that the Defendants intended to harm Plaintiff. In this regard, Plaintiff appears to concede that Grizzard, Duke, and Gustin did not make any alleged defamatory statements about Plaintiff outside of the investigation, which presumably would have occurred if their intent was to harm Plaintiff.
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Based on the foregoing, Grizzard, Duke, and Gustin are entitled to official immunity for statements made during the investigation. See Tootle v. Cartee, 280 Ga. App. 428, 431 (2006) (affirming dismissal of slander claims and holding defendants engaged in performance of official duties while meeting with students and faculty members to discuss plaintiff's dismissal and therefore entitled to official immunity for statements made during meetings).
3. Defendants Cannot Be Vicariously Liable for Employee Statements.
Vicarious liability cannot be imposed on an employer for slander unless the employer directs or authorizes the employee to make the defamatory statement. Brown v. Magnolia Manor, Inc., No. 4:13-CV-110 CDL, 2014 WL 7215191, at *6 (M.D. Ga. Dec. 17, 2014). An employer is not liable for its employees' defamatory words, "even where in uttering such words the speaker was acting for the benefit of the corporation and within the scope of the duties of his agency, unless it affirmatively appears that the agent was expressly directed or authorized by the corporation to speak the words in question." Safety—Kleen Corp. v. Smith, 203 Ga. App. 514, 514 (1992).
Here, Plaintiff does not allege that the City directed or authorized the individual Defendants, Mr. Maierhofer, or Ms. Studdard to make the allegedly defamatory statements. Thus, the City cannot be held liable for the allegedly
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slanderous statements of its employees. Nor can the individual Defendants be held liable for any of the statements made by Mr. Maierhofer or Ms. Studdard. See H&R Block Eastern Enter., Inc. v. Morris, 606 F.3d 1285, 1296 (11th Cir. 2010) ("Block cannot be held liable for the allegedly slanderous statements of its employees unless it affirmatively appears Block expressly directed or authorized its employees to slander Morris."). Plaintiff's state law claims for libel, slander, and defamation against the City, and her reliance on the statements of Mr. Maierhofer or Ms. Studdard to serve as the basis for this claim against the individual Defendants should therefore be dismissed.
I. Plaintiffs Attorneys' Fees Claim is a Derivative Claims that Should be Dismissed because Plaintiff has Failed to Sufficiently Plead Underlying Constitutional Violations
Plaintiff includes a claim for attorneys' fees under 42 U.S.C. § 1988 (Count X). Under this statute, the court, in its discretion, may in a proceeding to enforce 42 U.S.C. § 1983, allow the prevailing party a reasonable attorney's fee as part of the costs. § 1988. As demonstrated above, Plaintiff cannot prevail on the claims brought pursuant to § 1983 (Counts I-IV). For this reason, Count X should be dismissed.
III. CONCLUSION
For the foregoing reasons, Defendants respectfully request that Plaintiff's Complaint be dismissed with prejudice.
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Topics : Law_Crime