Bolton v. Wood

Full title: Nicholas S. BOLTON, Plaintiff, v. Lenn WOOD, Sheriff of Coweta County…

Court: United States District Court, N.D. Georgia, Atlanta Division

Date published: Jul 18, 2023

682 F. Supp. 3d 1304 (N.D. Ga. 2023)

Opinion

CIVIL ACTION FILE NO. 1:21-CV-2279-MHC

2023-07-18

Nicholas S. BOLTON, Plaintiff, v. Lenn WOOD, Sheriff of Coweta County, Georgia, a political subdivision of the State of Georgia; John Taylor Collins, Individually and in his Official Capacity as a former Deputy Sheriff for Coweta County, Georgia; Christian Spinks, Individually and in his Official Capacity as a Deputy Sheriff of Coweta County, Georgia; and Jon House, Individually and in his Official Capacity as a former Deputy Sheriff for Coweta County, Georgia, Defendants.

James Ward Howard, The Howard Law Firm, Tucker, GA, for Plaintiff. Karen Eleice Woodward, Cruser, Mitchell, Novitz, Sanchez, Gaston & Zimet, Peachtree Corners, GA, for Defendants.

MARK H. COHEN, United States District Judge

James Ward Howard, The Howard Law Firm, Tucker, GA, for Plaintiff. Karen Eleice Woodward, Cruser, Mitchell, Novitz, Sanchez, Gaston & Zimet, Peachtree Corners, GA, for Defendants. ORDER MARK H. COHEN, United States District Judge

This case comes before the Court on Defendants Lenn Wood ("Sheriff Wood"), John Taylor Collins ("Deputy Collins"), Christian Spinks ("Deputy Spinks"), and Jon House ("Deputy House")'s Motion for Summary Judgment [Doc. 74]. I. BACKGROUND ¹

1 At the outset, the Court notes that as this case is before it on Defendants' Motion for Summary Judgment, the Court views the evidence presented by the parties in the light most favorable to Plaintiff Nicholas S. Bolton ("Bolton"), and has drawn all justifiable inferences in his favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Sunbeam TV Corp. v. Nielsen Media Rsch., Inc., 711 F.3d 1264, 1270 (11th Cir. 2013). In addition, the Court has excluded assertions of facts that are immaterial or presented as arguments or legal conclusions or any fact not supported by citation to evidence (including page or paragraph number). LR 56.1B(1), NDGa. Further, the Court accepts as admitted those facts in Defendants' Statement of Material Facts ("Defs.' SMF") [Doc. 74-2] that have not been specifically controverted with citation to the relevant portions of the record. See LR 56.1B(2), NDGa; Pl.'s Resp. to Defs.' SMF [Doc. 85-2].

This lawsuit arises from a shooting of Bolton that occurred after his encounter with multiple Coweta County Deputy Sheriffs. At all relevant times, Deputies Collins, Spinks, and House were Deputy Sheriffs with the patrol division of the Coweta County Sheriff's Office ("CCSO"), and Sheriff Wood was the Coweta County Sheriff. Pl.'s Resp. to Defs.' SMF ¶¶ 11-14.

A. The Initial Encounter Between Bolton and Law Enforcement Officials

The Newnan Pavilion is a privately-owned shopping center located in Coweta County alongside Interstate 85, and it contains a number of retail establishments, including a Kohl's Department Store. Id. ¶¶ 1-3. There were signs posted throughout the Newnan Pavilion property that read: "No Loitering." Id. ¶ 4.

On June 30, 2019, Deputy Collins was on duty in full uniform, performing business checks as a part of the burglary patrol, a main component of his job on the night shift in the business district. Id. ¶ 27. At around 2:30 a.m., Deputy Collins spotted a white Chevrolet Tahoe (the "Tahoe") parked in the Kohl's parking lot. Id. ¶ 28. As Deputy Collins approached the Tahoe, he parked his patrol vehicle in such a way that his vehicle lights shined on the Tahoe without blocking it. Id. ¶ 29. Deputy Collins Informed dispatch that he was stepping out to investigate a suspicious vehicle. Id. ¶ 30.

Deputy Collins saw a person in the back seat of the Tahoe, later identified as Bolton, and knocked on the window and identified himself. Id. ¶¶ 32, 38. Deputy Collins shined his flashlight on himself so that Bolton could see that he was a uniformed officer, and told Bolton to provide his ID. Id. ¶ 33.

Deputy Collins can be heard on his body camera once sound becomes available at 00:30, asking Bolton four times to open the car door, but Bolton did not comply with those instructions and instead said that "I can hear you right here," and informed Deputy Collins that he already spoken to other police officers.² Footage from Deputy Collins's Body-Worn Camera ("Collins Bodycam") [Doc 75] at 00:30-00:51³; Pl.'s Resp. to Defs.' SMF ¶¶ 34-35, 37. Deputy Collins then asked Bolton for his ID three times. Collins Bodycam at 00:51-1:11; Pl.'s Resp. to Defs.' SMF ¶ 38.⁴ Bolton did not hand Deputy Collins his driver's license, but instead questioned why Deputy Collins needed his driver's license, and again stated that he already talked to two other officers, to which Deputy Collins replied, "Okay, well you haven't talked to me . . . ." Collins Bodycam at 00:51-1:11. On his third and last request, Deputy Collins stated: "Okay, look man, just give me your ID, and let me check you, and then I'll get on my way." Id. at 1:05-1:11.

2 Bolton testified that a police officer approached him in his Tahoe earlier that day, during the day time when the stores were open, checked his license and his tag, and "told me I was good." Dep. of Nicholas Bolton (Oct. 27, 2022) [Doc. 70] at 18.

3 Although the parties agree that the events started at 2:30 a.m., the bodycam footage referenced in this Order shows the "clock" starting at a time other than the time of the actual events. To avoid confusion, the Court will refer to time elapsed on the relevant bodycam footage.

4 It is axiomatic that deputies cannot confirm that a vehicle is registered to the driver without confirming the identity of the driver. Pl.'s Resp. to Defs.' SMF ¶ 26. Similarly, dispatch is unable to confirm whether a driver is the registered owner of a vehicle based on the car tag alone because the dispatcher is not on the scene to confirm the driver's identity. Id. ¶ 41.

After Bolton's refusal to cooperate, Deputy Collins informed Bolton that he was loitering because he was "back[ed] in front of a bunch of closed businesses." Pl.'s Resp. to Defs.' SMF ¶ 42; Collins Bodycam at 1:11-1:15. Deputy Collins then directed Bolton to step out of the Tahoe three times, but Bolton failed to comply with the deputy's instructions. Id. at 1:28-1:48. Bolton moved to the front seat⁵, and Deputy Collins asked him to step out of the vehicle for a fourth time; Bolton responded saying "I'm not fixing to do anything," and Collins told him, "you're gonna step out." Collins Bodycam at 1:46-2:00; Pl.'s Resp. to Defs.' SMF ¶ 45. Bolton replied by again referencing two other police officers he talked to earlier in the day. Collins Bodycam at 1:57-2:05. Deputy Collins again stated that he had never talked to Bolton. Id. at 1:50-2:00. Approximately two minutes after Deputy Collins approached the Tahoe, Deputy House, responding to a call for backup, arrived at the scene and parked his patrol car on the passenger side of the Tahoe without blocking it. Pl.'s Resp. to Defs.' SMF ¶¶ 47-48; Dep. of Jon House (Oct. 18, 2022) ("House Dep.") [Doc. 72] at 60. Deputy Collins asked Deputy House if he had talked to Bolton, and Deputy House responded "Nope." Pl.'s Resp. to Defs.' SMF ¶ 47. After Deputy House said this, Deputy Collins again instructed Bolton to get out of the vehicle for the fifth time, by stating "okay, then step on out," and Bolton continued to argue with the deputies. Id. ¶ 49; Collins Bodycam at 2:00-2:15. Deputy Collins said, "Nobody has talked to you tonight so, go ahead and step out for me." Pl.'s Resp. to Defs.' SMF ¶ 49; Collins Bodycam at 2:00-2:15.

5 Bolton had an item in his hand at that point which appeared to be a driver's license and can be seen through the window as Bolton moved his hands near the window while talking. Dep. of John Collins (Aug. 2, 2022) ("Collins Dep.") [Doc. 73] at 95-96; Collins Bodycam at 1:46-1:52. However, it is undisputed that Bolton never handed his driver's license or any form of identification to any police officer at the scene. Pl.'s Resp. to Defs.' SMF ¶ 55.

Deputy House then said, "[l]et me explain something to you real quick. We don't know you. We're investigating why you're here." Pl.'s Resp. to Defs.' SMF ¶ 52; Collins Bodycam at 2:10-2:18. Bolton asked, "For what?" Pl.'s Resp. to Defs.' SMF ¶ 53; Collins Bodycam at 2:15-2:20. Deputy House responded, "For loitering. You're loitering, and now that you're not stepping out of the car, you're obstructing an investigation, so you can either get out and talk to us or we can take you out and you can go to jail. It's your choice. You got one chance to get out, or you're going to jail." Pl.'s Resp. to Defs.' SMF ¶ 53; Collins Bodycam at 2:18-2:30. Deputy House then again asked, "You gonna get out or you gonna go to jail?" Collins Bodycam at 2:30-2:34. In total, Bolton was asked or told to get out of his car at least seven times. Id. at 00:00-2:34.

Bolton then started the ignition on the Tahoe. Pl.'s Resp. to Defs.' SMF ¶ 58. Deputy Collins commanded that Bolton turn the car off, pulling out his firearm and pointing it at the Tahoe with his finger on the outside of the gun, rather than on the trigger. Collins Bodycam at 2:34-2:40; Pl.'s Resp. to Defs.' SMF ¶ 59. Deputy House also drew his gun, pointing it at the Tahoe's windshield, with his finger similarly on the outside of the gun. Pl.'s Resp. to Defs.' SMF ¶ 60. Deputy House yelled, "Turn the car off!" Id. ¶ 63. As he did so, Deputy House moved towards the driver's side of the Tahoe, placed one hand on the front hood of the vehicle while keeping his other hand on his gun pointed at Bolton, and again said, "Turn the car off." Collins Bodycam at 2:38-2:40; Footage from Deputy House's Body-Worn Camera ("House Bodycam") [Doc 75] at 1:33-1:37. In total, the deputies asked Bolton to turn off his car at least three times. Collins Bodycam at 2:34-2:41. Instead of turning off his car, Bolton drove away. Pl.'s Resp. to Defs.' SMF ¶¶ 64, 69. It is unclear from the bodycam footage whether the Tahoe made contact with Deputy House as Bolton drove away, but Deputy House quickly moved out of the way of the Tahoe. Collins Bodycam at 2:40-2:41; House Bodycam at 1:36-37.

B. The Subsequent Pursuit and Shooting

Deputies Collins and House got into their patrol vehicles, activated their blue lights and sirens, and chased the Tahoe. Pl.'s Resp. to Defs.' SMF ¶ 70. Bolton was headed in the direction of the highway and drove in both lanes of the access roadway, including the lane meant for oncoming traffic. Id. ¶¶ 73-74. He failed to come to a full stop at two stop signs. Id. ¶ 72.

After chasing Bolton in his patrol vehicle, Deputy Collins performed a Pursuit Intervention Technique ("PIT") maneuver⁶, contacting the right rear comer of the Tahoe, causing it to spin around 180 degrees. Id. ¶¶ 76, 80; Collins Bodycam at 3:08-3:14. After the PIT maneuver, Deputy Collins stopped his vehicle in front of the Tahoe. Pl.'s Resp. to Defs.' SMF ¶ 81; Collins Bodycam at 3:14. The accelerator on the Tahoe was still being pressed and the vehicle's tires were spinning after the PIT maneuver. Pl.'s Resp. to Defs.' SMF ¶¶ 83, 96.⁷ The Tahoe moved slightly forward, making contact with Deputy Collins's marked patrol vehicle. Id. ¶ 82 (admitting that the Tahoe "moved forward after the spin and may have bumped Collins' patrol car"); Collins Bodycam at 3:10-20; House Bodycam at 2:00-2:15; Collins Dep. at 144. Deputy Collins's body camera footage confirms that there was contact between his patrol vehicle and the Tahoe after the PIT maneuver at 3:14 and what appears to be a slight and almost instantaneous movement of Deputy Collins's patrol vehicle backwards in reaction to being contacted by the Tahoe. Collins Bodycam at 3:13-3:16; see also House Bodycam at 2:10-2:12. Deputy Collins then opened his car door and exited his patrol vehicle; he was standing near the front, passenger side of the Tahoe. Collins Bodycam at 3:14-3:20.

6 A PIT Maneuver uses the force of the police officer's vehicle to stop a suspect's vehicle during a pursuit. Id. ¶ 77.

7 Sheriff Wood testified that the data retrieved from the Tahoe shows that the accelerator was being pressed between 71% and 100% at the time Deputy Collins fired his weapon. Defs.' SMF ¶ 83 (citing Decl. Leonard C. Wood (Dec. 28, 2022) ("Wood Decl.") [Doc. 74-3 at 1-14] of ¶ 24); see also Ga. State Patrol Dept. of Public Safety Specialized Collision Reconstruction Collision Analysis Report (June 20, 2019) [Doc. 74-3 at 64-86] at 80. Although Bolton contends this is undetermined because Sheriff Wood provides no factual basis or legal qualifications to analyze this data, the Court finds that the Georgia State Patrol Department of Public Safety Specialized Collision Reconstruction Collision Analysis Report sufficiently supports Sheriff's Wood's statement, and Bolton does not present any evidence creating a genuine dispute of material fact regarding this issue.

Deputy House pulled his vehicle up to the driver's side of the Tahoe with the front of his vehicle pointed at the driver's door of the Tahoe. Pl.'s Resp. to Defs.' SMF ¶ 84; House Bodycam at 2:10-2:17. Deputy House exited his vehicle and can be seen standing a few feet in front of the driver's door of the Tahoe, between his own patrol vehicle and Deputy Collins's patrol vehicle. House Bodycam at 2:14-2:20. Deputy House closed his car door and yelled a fourth and final time, "Turn off the car!" Pl.'s Resp. to Defs.' SMF ¶ 93; House Bodycam at 2:14-2:17; Collins Bodycam at 3:18-3:20. The squealing tires are audible on the bodycam footage, and the Tahoe left tire marks on the pavement after the PIT maneuver turned it 180 degrees. Pl.'s Resp. to Defs.' SMF ¶¶ 87-88; House Bodycam at 2:14-2:18; Wood Decl. ¶ 32 (stating that the Tahoe left tire marks as Deputy Collins fired his weapon).

At approximately the same time or just before Deputy House directed Bolton to turn off the car, Deputy Spinks arrived and approached the rear passenger side of the Tahoe with his patrol vehicle in an effort to box in the Tahoe. Pl.'s Resp. to Defs.' SMF ¶ 94; Collins Bodycam at 3:15-3:20. Deputy Spinks's patrol car hit the Tahoe at the rear, shifting the Tahoe in a clockwise fashion, which became the final resting position of the Tahoe. Pl.'s Resp. to Defs.' SMF ¶ 97; House Dep. at 104-05, 110; Collins Bodycam at 3:18-3:29. Deputy Spinks saw the Tahoe's tires spinning. Pl.'s Resp. to Defs.' SMF ¶ 96.

Approximately one second after House yelled at Bolton to turn off the car, Deputy Collins fired one round at Bolton through the Tahoe's windshield, and immediately notified dispatch that there were "shots fired." Id. ¶¶ 95, 102; Collins Bodycam at 3:18-3:21; House Bodycam at 2:15-2:20. Bolton's foot came off of the accelerator after he was shot. Pl.'s Resp. to Defs.' SMF ¶ 101. Deputy House requested Emergency Medical Services ("EMS") for Bolton. Id. ¶ 103.

C. Events After the Shooting

Deputy Spinks had to move Deputy House's patrol vehicle backward in order to open the driver-side door on the Tahoe. Id. ¶¶ 104-05. Deputy Brown, another CCSO deputy, arrived on scene and attempted to open the door to the Tahoe, but was unable to do so because it was locked. Id. ¶ 106; Footage from Todd Brown's Body-Worn Camera ("Brown Bodycam") [Doc 75] at 00:42-00:45. Deputy House used his baton to break the window, and saw that Bolton was non-responsive with a bullet wound to his right eye. Pl.'s Resp. to Defs.' SMF ¶ 107. Deputy Brown advised that Bolton was shot in the head and was still breathing, which information was relayed to dispatch with a request that Airlife be placed on standby. Id. ¶¶ 108-09. Deputy Brown then reached inside the Tahoe, shifted the vehicle from drive to park, removed the keys, and threw them onto the roof of the vehicle. Id. ¶ 110. Bolton made slight movements as he remained in the car. Brown Bodycam from 2:30-5:20.

The deputies became concerned about Bolton's movements and the fact they did not know what was inside the Tahoe, and therefore decided to remove Bolton from the Tahoe. Pl.'s Resp. to Defs.' SMF ¶ 112; Brown Bodycam at 5:20-5:50; Footage from Jeremy Crooks's Body-Worn Camera ("Crooks Bodycam") [Doc. 75] at 00:35-00:39. After removing Bolton from the Tahoe, Deputy Spinks handcuffed Bolton's hands behind his back. Pl.'s Resp. to Defs.' SMF ¶ 113. While applying the handcuffs, Deputy Spinks put his knee on Bolton's lower back. Id. ¶ 114; Footage from Deputy Spinks Body Worn Camera ("Spinks Bodycam") [Doc 75] from 5:40-6:10. Although the exact length of time is difficult to discern from the bodycam footage, Deputy Spinks's knee is on Bolton's back for between ten to twenty seconds.⁸ Compare Spinks Bodycam at 5:36 (full view of Bolton before the contact, with no knee in his back), with id. at 6:18-20 (full view of Bolton after the contact, with Deputy Spinks's knee no longer on Bolton's body); see also Crooks Bodycam at 00:48-1:00; Brown Bodycam at 5:45-6:05. Deputies Spinks and House put Bolton on his side to keep his airway clear, and Deputy House held a bandage to Bolton's wound to reduce the bleeding until EMS arrived. Pl.'s Resp. to Defs.' SMF ¶¶ 117-18.

8 Defendants contend it was ten seconds, while Bolton contends it was twenty seconds. Compare Defs.' SMF ¶ 114, with Pl.'s Resp. to Defs.' SMF ¶ 114.

D. The Complaint

On June 2, 2021, Bolton filed a Complaint for Damages [Doc. 1] against Defendants, asserting both federal and state law claims. Bolton asserts Fourth Amendment⁹ excessive force claims against Deputies Collins, Spinks, and House pursuant to 42 U.S.C. § 1983. Compl. ¶¶ 81-88 (Count I).¹⁰ In addition, Bolton asserts a supervisory liability claim against Wood in his official capacity pursuant to 42 U.S.C. § 1983. Id. ¶¶ 90-100 (Count II). Bolton also brings state law claims for assault and battery against Deputies Collins, Spinks, and House. Id. ¶¶ 102-114 (Count III),¹¹ Finally, Bolton brings a claim for punitive damages against all Defendants. Id. ¶¶ 116-117 (Count IV).

9 Although the Complaint labels this as Fourteenth Amendment excessive force claims, see, e.g., Compl. ¶¶ 81, 88, Bolton and Defendants agree these claims implicate the Fourth, rather than the Fourteenth, Amendment because the alleged force was pre-arrest Br. in Supp. of Defs.' Mot. for Summ. J. ("Defs.' Mem.") [Doc. 74-1] at 14-17; Pl.'s Resp. Br. in Opp'n to Defs.' Mot. for Summ. J. ("Pl.'s Opp'n") [Doc. 85-1] at 15 n.1; see also Garrett v. Athens-Clarke Cnty., 378 F.3d 1274, 1279 n.11 (11th Cir. 2004) ("All claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest . . . should be analyzed under the Fourth Amendment and its 'reasonableness' standard[.]") (quoting Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). Because pre-arrest excessive force claims are analyzed under the Fourth Amendment, the Court will consider Count I as alleging Fourth Amendment claims.

10 The Complaint does not specify if the excessive force claims are brought against Defendants in their individual capacities, official capacities, or both. Because the Complaint's caption indicates that these three deputies are sued both in their individual and official capacities, id. at 1, the Court will assume Count I is asserted against the deputies in both capacities.

11 The Compliant does not specify whether the state law assault and battery claims are brought against the deputies in their individual capacities, official capacities, or both. The Court will assume both for the reasons discussed above.

II. LEGAL STANDARDS

A. Summary Judgment

Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A party seeking summary judgment has the burden of informing the district court of the basis for its motion and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions," and cannot be made by the district court in considering whether to grant summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999).

If a movant meets its burden, the party opposing summary judgment must present evidence demonstrating a genuine issue of material fact or that the movant is not entitled to judgment as a matter of law. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. In determining whether a genuine issue of material fact exists, the evidence is viewed in the light most favorable to the party opposing summary judgment, "and all justifiable inferences are to be drawn" in favor of that opposing party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505; see also Herzog v. Castle Rock Entm't, 193 F.3d 1241, 1246 (11th Cir. 1999). A fact is "material" only if it can affect the outcome of the lawsuit under the governing legal principles. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A factual dispute is "genuine" if the evidence would permit a reasonable jury to return a verdict for the nonmoving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. "If the record presents factual issues, the court must not decide them; it must deny the motion and proceed to trial." Herzog, 193 F.3d at 1246. But, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party," summary judgment for the moving party is proper. Matsushita, 475 U.S. at 587, 106 S.Ct. 1348.

B. 42 U.S.C. § 1983 and Qualified Immunity

"It is well established that [42 U.S.C. §] 1983 itself creates no substantive rights; it merely provides a remedy for deprivations of federal rights established elsewhere." Wideman v. Shallowford Cmty. Hosp., Inc., 826 F.2d 1030, 1032 (11th Cir. 1987) (citing City of Okla. City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985)). To sustain a cause of action based on § 1983, a litigant must establish two elements: (1) that he suffered a deprivation of a right, privilege, or immunity protected by the U.S. Constitution or federal law, and (2) that the act or omission causing the deprivation was committed by a person acting under color of state law. Livadas v. Bradshaw, 512 U.S. 107, 132, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994); Arrington v. Cobb Cnty., 139 F.3d 865, 872 (11th Cir. 1998). "[S]ection 1983 imposes liability only for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law.' " Wideman, 826 F.2d at 1032 (quoting Baker v. McCollan, 443 U.S. 137, 146, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). Accordingly, "[i]n any § 1983 action, a court must determine 'whether the Plaintiff has been deprived of a right secured by the Constitution and laws of the United States.' " Glenn v. Brumby, 663 F.3d 1312, 1315 (11th Cir. 2011) (quoting Baker, 443 U.S. at 146, 99 S.Ct. 2689). "Absent the existence of an underlying constitutional right, no section 1983 claim will lie." Wideman, 826 F.2d at 1032.

To avoid individual liability in a claim under § 1983, law enforcement officers may invoke the defense of qualified immunity, which "offers complete protection for individual public officials performing discretionary functions 'insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' " Sherrod v. Johnson, 667 F.3d 1359, 1363 (11th Cir. 2012) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). To claim qualified immunity, a defendant must first show he or she was performing a discretionary function. Moreno v. Turner, 572 F. App'x 852, 855 (11th Cir. 2014) (citing Whittier v. Kobayashi, 581 F.3d 1304, 1308 (11th Cir. 2009)).

Instead of focusing on whether the acts in question involved the exercise of actual discretion, we assess whether they are of a type that fell within the employee's job responsibilities. Our inquiry is two-fold. We ask whether the government employee was (a) performing a legitimate

job-related function (that is, pursuing a job-related goal), (b) through means that were within his power to utilize.

Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265-66 (11th Cir. 2004) (citation omitted).

"Once discretionary authority is established, the burden then shifts to the plaintiff to show that qualified immunity should not apply." Edwards v. Shanley, 666 F.3d 1289, 1294 (11th Cir. 2012) (quoting Lewis v. City of W. Palm Beach, 561 F.3d 1288, 1291 (11th Cir. 2009)). A plaintiff demonstrates that qualified immunity does not apply by showing: "(1) the defendant violated a constitutional right, and (2) the right was clearly established at the time of the alleged violation." Whittier, 581 F.3d at 1308.

C. Excessive Force

"The Fourth Amendment's freedom from unreasonable searches and seizures encompasses the right to be free from excessive force during the course of a criminal apprehension." Oliver v. Fiorino, 586 F.3d 898, 905 (11th Cir. 2009) (citations omitted). "[A]ll claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard." Graham, 490 U.S. at 395, 109 S.Ct. 1865. Whether the force was "reasonable" "requires balancing of the individual's Fourth Amendment interests against the relevant government interests." Cnty. of Los Angeles v. Mendez, 581 U.S. 420, 427, 137 S.Ct. 1539, 198 L.Ed.2d 52 (2017) (citing Graham, 490 U.S. at 396, 109 S.Ct. 1865). The operative question in excessive force cases is "whether the officers' actions [were] 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Graham, 490 U.S. at 397, 109 S.Ct. 1865. "Though the facts must be taken in the light most favorable to [the plaintiff], the determination of reasonableness must be made from the perspective of the officer." Robinson v. Arrugueta, 415 F.3d 1252, 1255 (11th Cir. 2005). As the Supreme Court explained in Mendez,

The reasonableness of the use of force is evaluated under an objective inquiry that pays careful attention to the facts and circumstances of each particular case. And the 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. Excessive force claims . . . are evaluated for objective reasonableness based upon the information the officers had when the conduct occurred. That inquiry is dispositive: When an officer carries out a seizure that is reasonable, taking into account all relevant circumstances, there is no valid excessive force claim.

Mendez, 581 U.S. at 428, 137 S.Ct. 1539 (citations and quotations omitted). The inquiry into reasonableness requires courts to "slosh [their] way through the fact bound morass of 'reasonableness.' " Scott v. Harris, 550 U.S. 372, 383, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation. Graham, 490 U.S. at 396-97, 109 S.Ct. 1865.

Some of the facts and circumstances courts in consider "[i]n deciding whether a police officer used excessive force," include " 'the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.' " Morton v. Kirkwood, 707 F.3d 1276, 1281 (11th Cir. 2013) (citing Graham, 490 U.S. at 396, 109 S.Ct. 1865).

"As to deadly force, a police officer may use such force to dispel a threat of serious physical harm to either the officer or others, or to prevent the escape of a suspect who threatens this harm." Hammett v. Paulding Cnty., 875 F.3d 1036, 1048 (11th Cir. 2017) (citation and internal quotations omitted); see also Singletary v. Vargas, 804 F.3d 1174, 1181 (11th Cir. 2015) (citing Robinson, 415 F.3d at 1256) ("We have held that it is reasonable, and therefore constitutionally permissible, for an officer to use deadly force when he has 'probable cause to believe that his own life is in peril.' "); Carr v. Tatangelo, 338 F.3d 1259, 1268 (11th Cir. 2003) (citation and quotation omitted) ("[I]t is constitutionally permissible for an officer to use deadly force when the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.").

For that reason, we have "consistently upheld" an officer's use of deadly force in cases where the officer reasonably believed his life was endangered by a suspect who "used or threatened to use his car as a weapon." McCullough v. Antolini, 559 F.3d 1201, 1207 (11th Cir. 2009); see also Terrell v. Smith, 668 F.3d 1244, 1255 (11th Cir. 2012) (granting qualified immunity where "an objectively reasonable law enforcement officer could well have perceived that [a] moving vehicle was being used as a deadly weapon").

Singletary, 804 F.3d at 1181-82; see also Carr, 338 F.3d at 1269 ("A reasonable but mistaken belief that probable cause exists for using deadly force is not actionable under § 1983.").

III. DISCUSSION

A. Bolton's Fourth Amendment Excessive Force Individual Capacity Claims Against Deputies Collins, Spinks, and House are Without Merit.

Defendants contend that the use of force by Deputies Collins and Spinks was objectively reasonable and that Deputy House is not liable for a failure to intervene, so there was no constitutional violation under the Fourth Amendment for excessive force. Defs.' Mem. at 17-25. Moreover, even if there was a constitutional violation, Defendants assert that the deputies are protected by qualified immunity. Id. at 26-29. Bolton contends that Defendants violated clearly established law and CCSO policies during their stop, pursuit, and shooting of Bolton and have no qualified immunity for their actions. Pl.'s Opp'n at 18-27.

The parties do not dispute Defendants were acting within the scope of their discretionary authority with respect to the actions taken on June 30, 2019. Defs.' Mem. at 26; Pl.'s Opp'n at 18. See Cottam v. City of Wildwood, 750 F. App'x 791, 793 (11th Cir. 2018) (finding that the officer "was acting within the scope of his discretionary authority when he stopped and arrested" the plaintiff). Once it is established that the police officers were acting within their discretionary authority, the burden shifts to Plaintiff to show both that (1) the facts alleges show that the officers violated Plaintiff's constitutional right, and (2) the right was clearly established at the time of the alleged misconduct. This Court may consider these two prongs in any order, but "an official is entitled to qualified immunity if the plaintiff fails to establish either." Piazza v. Jefferson Cnty., 923 F.3d 947, 951 (11th Cir. 2019). As discussed below, the Court finds that the facts in this case, taken in the light most favorable to Bolton, establish that the actions taken by Deputies Collins, Spinks, and House did not violate Bolton's Fourth Amendment Right to be free from excessive force.

1. Deputy Collins

Bolton's excessive force claim against Deputy Collins is based on the allegation that Deputy Collins "shot Mr. Bolton in the head, without warning, when Mr. Bolton posed no objectively reasonable threat to Defendants Collins, Spinks, or House." Compl. ¶ 82. Bolton contends that Deputy Collins's use of deadly force was unnecessary, excessive, and not justified because "the deputies created a situation that was only dangerous to Bolton, falsely alleged that his immobilized vehicle was imminently dangerous, and shot Bolton in the head before he had any opportunity to follow an instruction to turn off his engine." Pl.'s Opp'n at 25-26.¹² Rather than attempting to justify his position based upon legal precedent, Bolton relies on two expert reports that opine that the force Collins used was "unnecessary and excessive" because Bolton was not an immediate threat to Collins or others. Id. (citing reports of Andrew J. Scott, III (June 10, 2022) [Doc 40] and Curtis Marshall (June 30, 2022) [Doc. 43-1]). However, "whether the force that [Deputy Collins] used was excessive is a pure question of law" and "is not a matter subject to expert testimony." Myers v. Bowman, 713 F.3d 1319, 1328 (11th Cir. 2013) (rejecting the plaintiffs' position that there was a genuine issue of material fact because their expert testified that the force used was excessive) (internal citation and quotation omitted); see also Bolander v. Taser Int'l, Inc., No. 07-CV-80789, 2009 WL 2004379, at *12 (S.D. Fla. July 9, 2009) (declining to consider expert opinion on whether force used was excessive as "the issue of whether the officers used excessive force based on the undisputed facts in the light most favorable to the Plaintiffs is a question of law for the Court."). Accordingly, Bolton has failed to carry his burden to allege facts which establish that Deputy Collins's use of deadly force was unreasonable given the facts and circumstances that confronted him at the time of the shooting.

12 Bolton also argues that several events preceding the shooting were the proximate cause of the shooting and "culminated in an unjustified, dangerous vehicle pursuit and a bullet in Bolton's brain." Id. at 18-25. More specifically, although Bolton admits the initial investigatory stop of Bolton was lawful, he argues the way the investigation was carried out was unlawful, the vehicle chase was in violation of CCSO policy, and the PIT maneuver was unnecessary and a violation of CCSO policy. Id.; see also Pl.'s Resp. to Defs.' SMF ¶ 67 (admitting that Deputy Collins had articulable reasonable suspicion that Bolton was loitering or prowling). In terms of analyzing Bolton's excessive force claim based solely on the shooting, these arguments are irrelevant. See Vincente v. City of Rome, Ga., No. CIV. A. 4:03-CV-0060H, 2005 WL 6032876, at *19 (N.D. Ga. June 28, 2005) (noting that a number of courts have concluded that the conduct prior to the moment that force is used is not relevant in determining the reasonableness of the force, and therefore excluding evidence that allegedly showed unreasonableness of acts prior to the use of force as not relevant); Linder v. Richmond Cnty., Ga., 844 F. Supp. 764, 767 (S.D. Ga.), aff'd, 38 F.3d 574 (11th Cir. 1994) (finding that the alleged unreasonableness of an officer's actions prior to the shooting "have no bearing on the reasonableness" of the officer's actions "at the time he was forced to make the decision whether to shoot" the plaintiff); Btesh v. City of Maitland, Fla., No. 6:10-CV-71-ORL-19DAB, 2011 WL 3269647, at *23 (M.D. Fla. July 29, 2011), aff'd sub nom. Btesh v. City of Maitland. Fla., 471 F. App'x 883 (11th Cir. 2012) (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865, and citing Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 407 (6th Cir. 2007)) ("Plaintiff does not cite, and the Court does not find, any authority that Scott's opinions about Officer Denicolas actions prior to the shooting of Btesh create a genuine issue of material fact regarding the reasonableness of Officer Denicola's use of deadly force on Btesh. When judging the use of deadly force by a police officer, a 'standard of reasonableness at the moment applies.' "); Crutcher v. Athens Police Dep't, No. CV-10-S-1176-NE, 2014 WL 5521944, at *4 (N.D. Ala. Oct. 31, 2014) ("Events that occurred prior to that moment, though perhaps giving factual context to the use of force, are not probative of the reasonableness of the decision to use force.") (citations omitted).

The undisputed facts known to Deputy Collins at the time he shot Bolton demonstrate that Bolton failed to obey the deputies' lawful requests to open the car door no fewer than four times, never handed his ID to the deputies despite Deputy Collins's request for his ID no fewer than three times, failed to obey police officers' lawful requests to exit the Tahoe no fewer than seven times, and instead moved to the driver's seat of his Tahoe and turned on the car. Bolton then refused three commands to turn off the car's engine and fled the scene, nearly hitting a police officer in the process of driving away.¹³ Bolton then led officers in a vehicular police chase where the two patrol vehicles tailing him had their sirens and lights engaged, and Bolton drove through two stop signs without stopping and in an erratic fashion in the lane meant for oncoming traffic. The car chase ended only after the officers performed a PIT maneuver to stop the Tahoe. Once the officers were able to end the chase and box in the Tahoe with their own patrol vehicles, Bolton continued to engage the Tahoe's accelerator, causing the vehicle's tires to squeal and indicating to the deputies that Bolton was still attempting to move the Tahoe. In fact, after the Tahoe spun around, the Tahoe moved forward and made contact with Deputy Collins's patrol vehicle. At this point, the officers exited their vehicle with their guns drawn and Deputy House commanded Bolton to turn off his car a final time in the moments prior to Deputy Collins firing a single shot at Bolton. These undisputed facts are sufficient as a matter of law to give a law enforcement officer in Collins's position a reasonable belief that Bolton (1) was still attempting to flee, (2) was using his vehicle as a deadly weapon¹⁴, (3) posed a threat of serious physical harm to himself and other officers on the scene, including Deputy House, (4) had violated multiple traffic laws¹⁵, and (5) had committed the offenses of obstruction or hindering an investigation¹⁶, fleeing or eluding a law enforcement officer¹⁷, and aggravated assault on a public safety officer¹⁸. It was reasonable for Deputy Collins to use deadly force under these circumstances.

13 Bolton contends that the Tahoe did not strike Deputy House on the hip. Pl.'s Resp. to Defs.' SMF ¶ 65. As previously stated, it is not clear from the bodycam footage whether or not contact was made. However, the Court will adopt Bolton's version of the facts and assume the Tahoe did not make contact with Deputy House. See, e.g., Baltimore v. City of Albany, Ga., 183 F. App'x 891, 895 (11th Cir. 2006) ("[W]hen the district court considers the record in the light most favorable to the plaintiff, as It must, it necessarily eliminates all issues of fact and proceeds with the plaintiff's best case before it.") (internal citation and quotations omitted); Williams v. Hudson, No. 1:11-CV-3542-SCJ, 2013 WL 11927707, at *16 (N.D. Ga. Aug. 12, 2013) ("In the excessive force context, the Court accepts the plaintiff's version of the facts and then answers the legal question of whether the defendants are entitled to qualified immunity under that version of the facts.") (internal quotations and citations omitted and alterations accepted).

14 See Thomas v. State, 255 Ga. App. 777, 778, 567 S.E.2d 72 (2002) (upholding a jury verdict finding the plaintiff guilty of aggravated assault with a deadly weapon based on testimony that the plaintiff drove his car toward an officer at a high rate of speed); Payne v. State, 195 Ga. App. 523, 524, 394 S.E.2d 781 (1990) (determining that quickly cutting a vehicle in front of a state trooper's patrol car during a vehicular chase was sufficient evidence of use of an automobile as a deadly weapon).

15 See O.C.G.A. § 40-6-40 (making it unlawful to drive on the left half of a roadway); O.C.G.A. § 40-6-72 (requiring vehicles to stop at stop signs).

16 See O.C.G.A. § 16-10-24 (a) (making it unlawful to obstruct or hinder a law enforcement officer in the discharge of his official duties).

17 See O.C.G.A. § 40-6-395 ("It shall be unlawful for any driver of a vehicle willfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop.").

18 See O.C.G.A. § 16-5-21 (defining aggravated assault upon a public safety officer to include the use of a deadly weapon against a public safety officer while he is engaged in the performance of his official duties In a manner that is likely to or actually does result in serious bodily injury); see also Webb v. State, 256 Ga. App. 653, 654, 569 S.E.2d 596 (2002) ("[O]ne who aims a motor vehicle at another person may be convicted of aggravated assault regardless of whether the victim sustained any injuries or was even touched by the vehicle.").

The Eleventh Circuit has "consistently upheld an officer's use of force and granted qualified immunity in cases where the decedent used or threatened to use his car as a weapon to endanger officers or civilians immediately preceding the officer's use of deadly force." McCullough, 559 F.3d at 1207-08 (11th Cir. 2009) ("McCullough used his vehicle in a dangerous and aggressive manner which provided the officers with probable cause to believe that McCullough, while driving his truck, posed a threat of serious physical harm or death to the officers, or other passersby, especially in light of the speed with which the incident unfolded."); see also Spencer v. City of Orlando, 725 F. App'x 928, 932 (11th Cir. 2018) (finding the officers faced immediate threat of harm sufficient to warrant deadly force because the plaintiff had used and threatened to use his car as a weapon immediately preceding the officers' use of force by backing his car in the direction of an officer and hitting the officer's car as he tried to flee); Singletary, 804 F.3d at 1183 (finding that the officer's use of deadly force was reasonable and did not constitute excessive force because a reasonable officer could have perceived that the suspect was using the car as a deadly weapon and was in imminent danger of being run over when he was in the path of the car as it accelerated); Terrell, 668 F.3d at 1252-54 (collecting cases showing that the Eleventh Circuit has consistently found the use of deadly force against a suspect using a vehicle as a deadly weapon to be reasonable); Pace v. Capobianco, 283 F.3d 1275, 1281-82 (11th Cir. 2002) (finding an officer's use of deadly force in shooting the plaintiff to be reasonable where the officer shot "a very few seconds" after a vehicular car chase ended and "the fleeing suspect appeared to be dangerous by virtue of his hazardous driving" during the chase he and "remained in his automobile with the engine running, even when almost surrounded by officers" because a reasonable officer could believe the car was a deadly weapon and could have believed the chase was not over); Small v. Glynn Cnty., 77 F. Supp. 3d 1271, 1280 (S.D. Ga. 2014), aff'd sub nom. McGehee v. Glynn Cnty., 598 F. App'x 752 (11th Cir. 2015) (recognizing the risk that a plaintiff who is evading arrest, fleeing, and driving aggressively can be a threat to an officer inside of his patrol car, and noting that the officer(s) in the patrol car feared being hit by the plaintiff's car).

The Eleventh Circuit, in addressing a case involving facts similar to the facts here, found an officer's use of deadly force to be constitutional. In Robinson, the defendant officer stood in front of a car, pointed his gun at the suspect who was sitting somewhere between the passenger seat and the driver's seat, and told the suspect to put his hands up. Robinson, 415 F.3d at 1254. Instead of complying, the suspect grinned at the officer as the car began slowly moving forward at a speed of approximately one to two miles per hour, and, as the officer attempted to get out of the way of the moving car, he shot the driver through the windshield. Id. The Eleventh Circuit determined that the officer "had to make a split-second decision of whether he could escape before he got crushed," it was reasonable for the officer to believe that the driver posed a threat of serious physical harm, and concluded that it was reasonable for the officer to use deadly force, so the officer was entitled to qualified immunity under the first prong of that analysis. Id. at 1256-57. The Eleventh Circuit noted that, under Georgia law, "a car driven in a threatening manner can be considered a deadly weapon." Id. at 1255-56 (citing Webb, 256 Ga. App. at 654, 569 S.E.2d 596 ("[O]ne who aims a motor vehicle at another person may be convicted of aggravated assault regardless of whether the victim sustained any injuries or was even touched by the vehicle.")). "Even if in hindsight the facts show that [the officer] perhaps could have escaped unharmed, we conclude that a reasonable officer could have perceived that [the suspect] was using the [vehicle] as a deadly weapon." Id. at 1256.

Even if the Tahoe was immobilized, as Bolton suggests, see Pl.'s Opp'n at 2, 9, 25, 33, it is undisputed that Bolton's foot remained on the accelerator and the tires were squealing. As such, a reasonable officer could have therefore assumed the car was still functional and able to be used as a deadly weapon. Therefore, "it was not unreasonable for the officers to conclude that [Bolton] remained an 'immediate' threat to their safety at the time [Collins] opened fire." Spencer, 725 F. App'x at 932 (finding it was not unreasonable for the officers to shoot even assuming that the plaintiff's car was disabled because it was undisputed that the plaintiff attempted to restart the engine so that he could continue fleeing). "To be clear, the officers were not required to wait until [the suspect] successfully restarted the car and drove toward them before they defended themselves." Id.; see also Long v. Slaton, 508 F.3d 576, 581 (11th Cir. 2007) (footnote omitted) ("Even if we accept that the threat posed by Long to Deputy Slaton was not immediate in that the cruiser was not moving toward Slaton when shots were fired, the law does not require officers in a tense and dangerous situation to wait until the moment a suspect uses a deadly weapon to act to stop the suspect."); Pace, 283 F.3d at 1282 (concluding there was no excessive force despite the fact the court accepted the facts that the suspect did not try and run over the officers, nor did the suspect aim his vehicle at the officers).

Bolton also argues that he lost control of his vehicle during the PIT maneuver. Pl.'s Opp'n at 9. Even if Bolton was, in fact, unable to control the vehicle, it was reasonable for Deputy Collins to believe Bolton was in control based on his position at the controls as the tires squealed. "[T]he necessarily fact-specific inquiry takes into account facts as they reasonably appeared to the police officer. If an officer reasonably, but mistakenly, believes that one of the factors relevant to the merits of the constitutional excessive-force claim is present, the officer is justified in using more force than in fact was needed." Williams v. Deal, 659 F. App'x 580, 597-98 (11th Cir. 2016).

Viewing the evidence in a light most favorable to Bolton and construing all reasonable inferences in his favor, but from the perspective of a reasonable officer in Deputy Collins's position on the scene at that moment in time, a reasonable officer could have concluded that the Bolton posed an imminent threat of harm based on the use of his vehicle as a deadly weapon. The Court therefore finds that Deputy Collins did not violate the Fourth Amendment when he shot Bolton.

Because Collins did not violate Bolton's Fourth Amendment rights, the Court need not reach the second prong of the qualified immunity analysis. Crenshaw v. Lister, 556 F.3d 1283, 1293 (11th Cir. 2009) ("[B]ecause there was no constitutional violation, we need not address whether the constitutional right at issue was clearly established."). However, even assuming arguendo that Collins did violate Bolton's Fourth Amendment rights, Bolton fails to cite any legal precedent or even raise an argument demonstrating that any alleged constitutional violation was clearly established at the time Deputy Collins shot Bolton. See Pace, 283 F.3d at 1283 (holding that even if the officers violated the plaintiff's constitutional right, they were still entitled to qualified immunity because the plaintiff "identified no case demonstrating a clearly established rule prohibiting police officers from using deadly force in circumstances like those in this case").

Accordingly, Deputy Collins is entitled to qualified immunity, and the Court GRANTS Defendants' Motion for Summary Judgment as to Count I against Deputy Collins in his individual capacity.

2. Deputy Spinks

Bolton brings an excessive force claim against Deputy Spinks for "handcuffing Mr. Bolton's wrists behind his back and kneeling on Mr. Bolton's back and neck, pinning him to the concrete for an excessive period of time" and "continuing to kneel on Mr. Bolton's back and neck while Mr. Bolton was handcuffed with his hands behind his back, after being shot in the head, while he was not resisting in any way." Compl. ¶¶ 83-84. Without citing any legal authority supporting the proposition that the alleged acts constitute excessive force, Bolton states in conclusory fashion that "Deputy Spinks obviously used excessive force against Bolton." Pl.'s Opp'n at 26. Bolton argues that he was not a threat, he was injured and twitching on the ground due to his gunshot wound, yet Deputy Spinks yelled at him to stop moving as he put his foot and knee on Bolton's back and neck to handcuff him. Id.

The Court finds that Deputy Spinks used what Eleventh Circuit precedent considers to be "de minimis," as opposed to excessive, force. See Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000) ("[T]he application of de minimis force, without more, will not support a claim for excessive force in violation of the Fourth Amendment.").

Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it. This circuit has made clear that some use of force by a police officer when making a custodial arrest is necessary and altogether lawful, regardless of the severity of the alleged offense. Because a police officer is entitled to use some force to arrest a suspect, the application of de minimis force, without more, will not support a claim for excessive force in violation of the Fourth Amendment.

Myers, 713 F.3d at 1327 (quotations and citations omitted). "For even minor offenses, permissible force includes physical restraint, use of handcuffs, and pushing into walls." Brown v. City of Huntsville, 608 F.3d 724, 740 (11th Cir. 2010); see also Rodriguez v. Farrell, 280 F.3d 1341, 1351 (11th Cir. 2002) (finding no excessive force as a matter of law where, in the course of an arrest, the officer handcuffed the plaintiff in a manner that caused him injury and pain); Nolin, 207 F.3d at 1255, 1258 & n. 4 (finding no excessive force as a matter of law when, during the course of an arrest, the officer grabbed the plaintiff and shoved him against a van, kneed him in the back, pushed his head against the van, searched his groin area, and then handcuffed him); Lockhart v. Lebron, No. 19-CV-60326, 2019 WL 1996016, at *4 (S.D. Fla. Apr. 17, 2019), R&R adopted, 2019 WL 1992993 (S.D. Fla. May 6, 2019) (finding allegations that the officer drew his gun and then placed the plaintiff in a chokehold, forcing him to the ground, and causing injury were not sufficient to support a claim for excessive force).

Viewing the evidence in a light most favorable to Bolton, that Deputy Spinks's knee was on Bolton's back for twenty seconds, the court concludes this was not excessive force. See Croom v. Balkwill, 645 F.3d 1240, 1245-52 (11th Cir. 2011) (finding that even if force was unnecessary, there was no constitutional violation based on its application because the force was de minimis where an officer placed his foot on the plaintiff's back and held her to the ground for up to ten minutes). Even if Deputy Spinks placed his foot and/or knee on Bolton's neck as well as his back,¹⁹ this would still not rise above de minimis force because the Eleventh Circuit has upheld similar (and much more severe) acts as de minimis and not violative of the Fourth Amendment. See, e.g., Post v. City of Fort Lauderdale, 7 F.3d 1552, 1559 (11th Cir. 1993), modified, 14 F.3d 583 (11th Cir. 1994) (finding that an officer who pushed a plaintiff against a wall and placed the plaintiff in a choke-hold prior to placing her in handcuffs was not excessive force despite the fact that the plaintiff did not resist); Nolin, 207 F.3d at 1255 (finding the officer only applied de minimis force even though he pushed the plaintiff's head into the side of a van); Myers, 713 F.3d at 1325-27 (finding that the officer only applied de minimis force despite the fact that the arrestee suffered injury to his head and neck). Accordingly, Bolton has failed to meet his burden of showing that Deputy Spinks violated his Fourth Amendment rights.

19 Defendants argue the record does not show Deputy Spinks put his foot and/or knee on Bolton's neck. Defs.' Reply Br. in Supp. of Def.' Mot. for Summ. J. [Doc. 90] at 9. Bolton cites only to Deputy Spinks's Bodycam and Deputy House's Bodycam, omitting any time stamp, for the proposition that Deputy Spinks put his foot or knee on Bolton's neck. Pl.'s Opp'n at 26 (citing House Bodycam and Spinks Body cam). Yet a review of the video footage contained in these two body cameras does not show that there is any contact made by Deputy Spinks to Bolton's neck. See Spinks Bodycam at 5:26-6:10; House Body-cam at 8:28-8:46. Accordingly, Bolton has not presented evidence that shows that Deputy Spinks made contact with Bolton's neck.

Even assuming arguendo that it could be contended that Deputy Spinks violated Bolton's Fourth Amendment rights, Bolton again fails to cite any case law or raise any argument that Deputy Spinks violated a constitutional right that was clearly established. Accordingly, the Court GRANTS Defendants' Motion for Summary Judgment as to Count I against Deputy Spinks in his individual capacity.

3. Deputy House

Bolton brings an excessive force claim against Deputy House for failing to intervene "to prevent Defendant Collins or Defendant Spinks from exerting excessive force in violation of Mr. Bolton's" constitutional rights. Compl. ¶ 85. "An officer who is present and in a position to intervene to prevent another officer from violating the constitutional rights of an arrestee can be held liable for his inaction." Quick v. Geddie, 763 F. App'x 909, 915 (11th Cir. 2019) (citing Crenshaw, 556 F.3d at 1293-94). The officer "must have been in a position to intervene." Terry v. Bailer, 376 F. App'x 894, 896 (11th Cir. 2010) (citing Ensley v. Soper, 142 F.3d 1402, 1407 (11th Cir. 1998)); see also Velazquez v. City of Hialeah, 484 F.3d 1340, 1341 (11th Cir. 2007) ("The law of this circuit is that 'an officer who is present at the scene and who fails to take reasonable steps to protect the victim of another officer's use of excessive force, can be held liable for his nonfeasance.' ") (quoting Skrtich v. Thornton, 280 F.3d 1295, 1302 (11th Cir. 2002)).

In his brief, Bolton acknowledges that there must be a constitutional violation that takes place in front of the offending officer to support a claim for a failure to intervene. Pl.'s Opp'n at 26 (noting that a failure to intervene cause of action occurs "when a constitutional violation . . . takes place" in an officer's presence). Here, no such constitutional violation has taken place as the Court has found that Deputies Collins and Spinks did not violate Bolton's Fourth Amendment rights, so Deputy House "had no attendant obligation to intervene." See, e.g., Crenshaw, 556 F.3d at 1294 (finding that the district court erred in denying the police officer summary judgment on the plaintiff's failure to intervene claim against one deputy where the other deputy did not violate the plaintiff's right to be free from excessive force); see also Hall v. McGhee, 762 F. App'x 837, 840 (11th Cir. 2019) ("Although legally distinct, the outcome of Mr. Hall and Mr. Reuben's failure to intervene claim is closely linked to the excessive force claims because the duty to intervene only arises when another officer uses excessive force.").

Because Bolton fails to demonstrate a constitutional violation on the part of Deputy House, the Court need not reach the second prong of the qualified immunity analysis, Crenshaw, 556 F.3d at 1293. However, Bolton has again failed raise any argument that the alleged violation of his constitutional right was clearly established at the time of the alleged violation. The Court GRANTS Defendants' Motion for Summary Judgment as to Count I against Deputy House in his individual capacity.²⁰

20 Although Bolton himself acknowledged that the qualified immunity analysis is an objective one, "without regard to [the officers'] underlying intent or motivation," Pl.'s Opp'n at 17, he nevertheless includes a lengthy argument that the deputies made misrepresentations that demonstrate they intentionally violated Bolton's civil rights. Id. at 28-35. Because intent is immaterial to the qualified immunity analysis, this argument does not change the Court's conclusion that qualified immunity applies.

B. Bolton's Fourth Amendment Excessive Force Official Capacity Claims are Without Merit.

The claims against Deputies Collins, Spinks, and House in their official capacity fail for two reasons. First, because the Court has concluded that the excessive force claims brought against those deputies in their individual capacities fail as a matter of law because they did not violate Bolton's constitutional rights, the claims against them in their official capacities also fail as a matter of law. Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1309 (11th Cir. 2009) (holding that there was "no basis and no support for the similar claims made against" a Whitefield County Sheriff and five deputies in their official capacities because "we have found no support for any of the federal claims being made against [them] in their individual capacities"); Hazelton v. DeKalb Cnty., Ga., No. 1:09-CV-00026-JOF, 2011 WL 13183220, at *11 (N.D. Ga. Mar. 8, 2011), aff'd sub nom. Hazelton v. DeKalb Cnty., Ga., 496 F. App'x 931 (11th Cir. 2012) ("As there is no support for claims against any of the Defendants in their individual capacities, none of the Defendants may be held liable in their official capacity[.]").

Second, the claims against the deputies in their official capacities also are barred by Eleventh Amendment immunity.²¹ Bolton's claims against Deputies Collins, Spinks, and House in their official capacities actually are claims against the Coweta County Sheriff's Office. Graham, 473 U.S. at 165-66, 105 S.Ct. 3099; see also Brandon v. Holt, 469 U.S. 464, 471, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985) ("[A] judgment against a public servant 'in his official capacity' imposes liability on the entity that he [or she] represents . . . ."); Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003) (citations omitted) (stating that sheriff's deputies in Georgia are "are employees of the sheriff and not the county") (en banc); Lake v. Skelton, 840 F.3d 1334, 1339 (11th Cir. 2016) (citing Grech v. Clayton Cnty., Ga., 335 F.3d 1326, 1347 (11th Cir. 2003)) ("Georgia caselaw recognizes that deputies are employees of the sheriff and not the county."), reh'g denied, 871 F.3d 1340 (11th Cir. 2017); O.C.G.A. § 15-16-23 ("Sheriffs are authorized in their discretion to appoint one or more deputies.").

21 Although Defendants recognize and raise an argument that Sheriff Wood is protected by the Eleventh Amendment with respect to Count II, Defs.' Mem. at 31, they fail to make any such argument with respect to Count I. Nevertheless, for completeness, the Court includes an explanation of why the Eleventh Amendment also bars this claim.

"[N]either a State nor its officials acting in their official capacities are 'persons' under § 1983." Will v. Mich. Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). States and state officials acting in official capacities are immune from suit brought pursuant to Section 1983 under the Eleventh Amendment, which "protects a State from being sued in federal court without the State's consent." Manders, 338 F.3d at 1308. The State of Georgia has not waived its Eleventh Amendment immunity from suits in federal court under § 1983. See Clarke v. McNurrv, 763 F. App'x 899, 900 (11th Cir. 2019); GA. CONST. art. I, § 2, IX(f) ("No waiver of sovereign immunity . . . shall be construed as a waiver of any immunity provided to the state or its . . . officers, or employees by the United States Constitution."); O.C.G.A. § 50-21-23(b) ("The state does not waive any immunity with respect to actions brought in the courts of the United States."). In addition, Congress has not abrogated Eleventh Amendment immunity in § 1983 cases. Brown v. Fla. Dep't of Revenue Off. of Child Support Enf't., 697 F. App'x 692, 693 (5th Cir. 2017) (citation omitted).

Eleventh Amendment immunity from suit applies equally to lawsuits against the state as well as "arms of the state." Id. The Eleventh Circuit delineated the test for whether an individual was an "arm of the state" in Manders, where the court emphasized that the determination "must be assessed in light of the particular function in which the defendant was engaged when taking the actions out of which liability is asserted to arise." Manders, 338 F.3d at 1308. The Manders Court examined four factors in its analysis of whether an entity is an "arm of the State" in carrying out a particular function: "(1) how state law defines the entity; (2) what degree of control the State maintains over the entity; (3) where the entity derives its funds; and (4) who is responsible for judgments against the entity." Id. at 1309.

The Complaint asserts that liability arises from: (1) Deputy Collins shooting of Bolton, (2) Deputy Spinks's conduct in handcuffing Bolton, and (3) Deputy House's alleged failure to intervene. Compl. ¶¶ 82-85. The Court finds that the deputies were performing state law enforcement duties and therefore acted as an arm of the state at the time of the events underlying this case. See Murdock v. Cobb Cnty. Ga., No. 1:12-CV-1743-RWS, 2013 WL 2155465, at *1, 4 (N.D. Ga. May 17, 2013) (citing Grech, 335 F.3d at 1333, 1336, 1348) (finding that a deputy who allegedly shot a suspect during a traffic stop was acting as an arm of the state and was entitled to Eleventh Amendment immunity); Townsend v. Coffee Cnty., Ga., 854 F. Supp. 2d 1345, 1352 (S.D. Ga. 2011) ("Investigatory stops and arrests fall squarely within the traditional law-enforcement responsibilities of a sheriff and his deputies"); Williams v. Keenan, No. 5:06 CV 290, 2007 WL 81823, at *3 (M.D. Ga. Jan. 8, 2007) ("[T]he Court finds in this case that, based on the rationale of Manders, Defendant acted as an 'arm of the State' in 'causing or effecting' Plaintiff's arrest."); see also King v. King, No. 5:17-CV-24 (MTT), 2017 WL 4018857, at *4 (M.D. Ga. Sept. 12, 2017) (citing Moon v. Rockdale Cnty., 188 F. Supp. 3d 1369, 1378-79 (N.D. Ga. 2016)) ("District courts deciding the issue have determined that a sheriff and employees performing law enforcement functions act as an 'arm of the state,' not the county."); Lawrence v. W. Publ'g Corp., No. 1:15-CV-3341-MHC, 2016 WL 4257741, at *11 (N.D. Ga. June 17, 2016) (citing Grech, 335 F.3d at 1348) ("With respect to Plaintiff's section 1983 official capacity claims against the individual Defendants, there is Eleventh Circuit precedent supporting the position that they were effectively an 'arm of the state' when they performed law enforcement activities.").

Thus, as an "arm of the state," Deputies Collins, Spinks, and House, acting in their official capacities, are entitled to Eleventh Amendment immunity from Bolton's federal claims. See Morgan v. Fulton Cnty. Sheriff's Dep't, No. 1:05-CV-1576-JOF, 2007 WL 1810217, at *5 (N.D. Ga. June 21, 2007) ("In a line of cases interpreting Manders, the courts in this circuit have determined that when a sheriff is acting as an arm of the state, his deputies are also entitled to Eleventh Amendment immunity from suits for money damages in their official capacities."). Accordingly, Defendants' Motion for Summary Judgment is GRANTED as to Count I against Deputies Collins, Spinks, and House in their official capacities.

C. Bolton's Fourteenth Amendment Claims Against Sheriff Wood in his Official Capacity is Without Merit.

Bolton brings a claim of supervisory liability under Section 1983 against Sheriff Wood for maintaining a custom or policy of permitting deputies to use punitive force against uncooperative arrestees, which resulted in "a culture of systematic abuse of arrestees and deliberate indifference to those arrestees' constitutional rights." Compl. ¶¶ 90-92. Defendants argue that Sheriff Wood cannot be sued in his official capacity under § 1983 and the Eleventh Amendment precludes such a suit against him. Defs.' Mem. at 30-31. In response, Bolton argues, in conclusory fashion and without citation to any authority, that "[q]uite simply, a county sheriff is not 'an agent of the State' for purposes of a § 1983 claim." Pl.'s Opp'n at 36.

As previously discussed with respect to the official capacity claims brought against the sheriff's deputies, sheriffs engaged in their law enforcement duties are acting an arm of the state and are protected from suit in their official capacities based on the Eleventh Amendment. Manders, 338 F.3d at 1320-22; Grech, 335 F.3d at 1347; see also Morgan, 2007 WL 1810217, at *5 ("With regard to the Plaintiff's excessive force claim, under Manders, when establishing and implementing force policies, the Fulton County Sheriff and therefore his deputies, act as arms of the state and are entitled to Eleventh Amendment immunity."); Temple v. McIntosh Cnty., Georgia, No. 2:18-CV-91, 2019 WL 287482, at *4 n.9 (S.D. Ga. Jan. 22, 2019) ("Any claims against Jessup in his official capacity under this count for any alleged policy or supervision related to excessive force still involve a law enforcement function, and thus, he is still considered an arm of the State under Manders . . . . If the Eleventh Circuit found that the sheriff in Manders was an arm of the state based on the factors described above for use of force policy in a jail, then it stands to reason that Sheriff Jessup in this case is an arm of the State for any alleged policy decisions or discipline for his deputies regarding excessive force in arrests."). Thus, as an arm of the state, Sheriff Wood is entitled to Eleventh Amendment immunity from Plaintiff's Section 1983 claim.

While the Court has established that Sheriff Wood was an arm of the state in conducting law enforcement functions, the Court briefly notes that even if Sheriff Wood acted as an agent of Coweta County, and Bolton was intending to assert a claim against Coweta County under Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658 (1978), that claim would also fail. See, e.g., Storey v. Effingham Cnty., No. CV415-149, 2022 WL 303247, at *7 (S.D. Ga. Feb. 1, 2022) (noting that the plaintiff's official capacity claim against the sheriff involving law enforcement functions against is really a suit against the State of Georgia, rather than the county, but noting that even if the sheriff was an agent of the county, the claim would still fail). A plaintiff seeking to hold a local government such as Coweta County liable under § 1983 cannot rely upon the theory of respondeat superior, instead, liability must stem from the "execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy . . . ." Mo nell, 436 U.S. at 694, 98 S.Ct. 2018; see also Denno ex rel. Denno v. School Bd. of Volusia Cnty., 218 F.3d 1267, 1276 (11th Cir. 2000) (citing Monell, 436 U.S. at 694, 98 S.Ct. 2018). Because a county is "liable under section 1983 only for acts for which the [county] is actually responsible," Marsh v. Butler Cnty., 268 F.3d 1014, 1027 (11th Cir. 2001) (en banc), Bolton "must identify a [county] policy or custom that caused . . . injury." Grech, 335 F.3d at 1329 (citation and internal punctuation omitted).

To establish a policy or custom, it is generally necessary to show a persistent and wide-spread practice. Moreover, actual or constructive knowledge of such customs must be attributed to the governing body of the municipality. Normally random acts or isolated incidents are insufficient to establish a custom or policy.

Depew v. City of St. Marys, 787 F.2d 1496, 1499 (11th Cir. 1986). A plaintiff must show that the county's custom or practice is "the moving force behind the constitutional violation." City of Canton v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) (internal punctuation and citation omitted).

A plaintiff "has two methods by which to establish a county's policy: identify either (1) an officially promulgated county policy or (2) an unofficial custom or practice of the county shown through the repeated acts of a final policymaker for the county." Grech, 335 F.3d at 1329 (citing Monell, 436 U.S. at 690-91, 98 S.Ct. 2018). To prove § 1983 liability based on custom, a plaintiff must establish a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well-settled as to constitute a custom or usage with the force of law. St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988). In other words, a longstanding and widespread practice is deemed authorized by the policymaking officials because they must have known about it but failed to stop it. Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1479 (11th Cir. 1991).

There is no evidence that Sheriff Wood was personally involved in the deputies' encounter with Bolton or his shooting. Moreover, Bolton fails to articulate any policy or custom that Sheriff Wood ratified, a history of widespread abuse, or a custom or policy that resulted in a deliberate indifference to Bolton's constitutional rights. Finally, even if there was a violation of one or more CCSO policies during the encounter between law enforcement officers and Bolton on June 30, 2019, that would not state a Monell claim based on custom: "A pattern of similar constitutional violations . . . is ordinarily necessary, because a single violation is not so pervasive as to amount to a custom." Gurrera v. Palm Beach Cnty. Sheriff's Off., 657 F. App'x 886, 892-93 (11th Cir. 2016) (citing Craig v. Floyd Cnty., 643 F.3d 1306, 1310 (11th Cir. 2011) and Grech, 335 F.3d at 1330).²² Therefore, even if Sheriff Wood was not protected by the Eleventh Amendment (which he is), this claim would still fail.

22 Bolton only raises a single other allegedly comparable incident that occurred after the underlying incident. See Pl.'s Opp'n at 38 (citing Affidavit of Emmanuel Onyeka ("Onyeka Affidavit") [Doc. 85-14]).

The Court therefore GRANTS Defendants' Motion for Summary Judgment as to Count II against Sheriff Wood in his official capacity.

D. Bolton's State Law Claims for Assault and Battery are Without Merit.

Defendants argue, in relevant part, that summary judgment should be granted in their favor on all of Bolton's state law claims based on official and sovereign immunity. Defs.' Mem. at 33-35.

1. Individual Capacity Claims

In relevant part, the Georgia Constitution provides:

[A]ll officers and employees of the state or its departments and agencies may be subject to suit and may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions and may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions. Except as provided in this subparagraph, officers . . . shall not be subject to suit or liability, and no judgment shall be entered against them, for the performance or non performance of their official functions.

GA. CONST., art. I, § 2, ¶ IX(d). "Stated succinctly, a public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure." Graham v. Cobb Cnty., 316 Ga. App. 738, 742, 730 S.E.2d 439 (2012).

The parties do not dispute that Defendants' acts in this case were discretionary as opposed to ministerial. See Hart v. Logan, 664 F. App'x 857, 863 (11th Cir. 2016) ("Under Georgia law, a law enforcement official's decision to use force while on duty falls squarely within his discretionary authority."). Consequently, Defendants are entitled to official immunity unless Bolton demonstrates actual malice or intent to cause injury.

Actual malice requires a deliberate intention to do wrong and express malice or malice in fact. Actual malice does not include implied malice or the reckless disregard for the rights and safety of others. A deliberate intention to do

wrong such as to constitute the actual malice necessary to overcome official immunity must be the intent to cause the harm suffered by the plaintiffs. Likewise, "[t]he phrase 'actual intent to cause injury' has been defined in a tort context to mean an actual intent to cause harm to the plaintiff, not merely an intent to do the act purportedly resulting in the claimed injury. This definition of intent contains aspects of malice, perhaps a wicked or evil motive."

Selvy v. Morrison, 292 Ga. App. 702, 704-05, 665 S.E.2d 401 (2008) (emphasis added) (quoting Kidd v. Coates, 271 Ga. 33, 33-34, 518 S.E.2d 124 (1999)); see also Adams v. Hazelwood, 271 Ga. 414, 415, 520 S.E.2d 896 (1999) ("Actual malice requires more than harboring bad feelings about another. While ill will may be an element of actual malice in many factual situations, its presence alone cannot pierce official immunity; rather, ill will must also be combined with the intent to do something wrongful or illegal."). "Unlike qualified immunity under federal law, we must inquire into [the public agent's] subjective intent to determine whether he has official immunity under Georgia law." Jordan v. Mosley, 487 F.3d 1350, 1357 (11th Cir. 2007). As explained by the Eleventh Circuit, "malice in this context means badness, a true desire to do something wrong." Peterson v. Baker, 504 F.3d 1331, 1339 (11th Cir. 2007). In addition, "actual intent to cause injury" means "an actual intent to cause harm to the plaintiff, not merely an intent to do the act purportedly resulting in the claimed injury." Id.; see also Murphy v. Bajjani, 282 Ga. 197, 203, 647 S.E.2d 54 (2007) (quoting Merrow v. Hawkins, 266 Ga. 390, 391-92, 467 S.E.2d 336 (1996)) ("Actual malice" refers to "a deliberate intention to do wrong," which is more than simply "reckless disregard for the rights or safety of others.").

Without citing any supporting authority, Bolton argues in conclusory fashion that the actions of the deputies during the initial encounter, the pursuit, the PIT maneuver, the shooting, and the removal of Bolton from the vehicle demonstrate the existence of actual malice. Pl.'s Opp'n at 39. With respect to the shooting, the Court found Deputy Collins's action to be objectively reasonable based in part on the threat that Bolton posed, and concluded that Deputy Collins did not violate Bolton's Fourth Amendment rights. Bolton has failed to show the necessary malice or intent sufficient to deny official immunity. See Hart, 664 F. App'x at 864 (internal citation and quotation omitted) ("Accordingly, an officer who, in the performance of his official duties, shoots another in self-defense is shielded from tort liability by the doctrine of official immunity."); id. ("[T]his Court has noted that Georgia's actual malice standard is higher than what is required to make out a Fourth Amendment violation."); see also Miller v. City of Atlanta, Ga., No. 1:21-CV-03752-SDG, 2022 WL 4587848, at *10 (N.D. Ga. Sept. 29, 2022), appeal dismissed, No. 22-13445-GG, 2023 WL 2847543 (11th Cir. Jan. 13, 2023) (finding that an officer was entitled to official immunity because none of the factual allegations suggested that the officer's "use of deadly force—reasonable or not—was with the intent to do anything other than to stop [the plaintiff's] flight while in possession of a weapon that could be used to cause serious injury.").

This Court also found Deputy Spinks's actions while handcuffing Bolton to be objectively reasonable. Specifically, the Court found that Deputy Spinks used only de minimis force and "[i]n light of the de minimis use of force, the court does not find any evidence of actual malice to defeat official immunity under Georgia law." Hankins v. Davis, No. 1:13-CV-01365-RWS, 2015 WL 71437, at *7 (N.D. Ga. Jan. 5, 2015). Bolton fails to cite any evidence of Deputy Spinks's subjective intent, nor does he otherwise show Deputy Spinks acted with "a deliberate intention to do a wrongful act." Hart, 664 F. App'x at 863 (internal citation and quotation omitted); see also Baker v. Clements, No. 1:16-CV-2378-LMM, 2018 WL 11214862, at *8 (N.D. Ga. May 30, 2018), aff'd, 760 F. App'x 954 (11th Cir. 2019) (finding no actual malice where the plaintiff failed to present evidence of the officers' subjective intent).

Finally, with respect to the deputies' conduct in the initial encounter, pursuit, and PIT maneuver, Bolton cites no authority where similar actions have been held to demonstrate actual malice which falls short of the "demanding standard of showing that the defendant officers acted with actual malice." McMullen v. City of Port Wentworth Georgia, No. CV417-067, 2019 WL 4733081, at *10 (S.D. Ga. Sept. 26, 2019). While Bolton argues that he was "intimidated and frightened" by the deputies "ignoring his driver's license²³, statements, and questions while refusing to give him a reason to step out of his vehicle," Pl.'s Opp'n at 39, "[i]ll will alone is insufficient to establish actual malice; [Bolton] must show that [the deputies] acted with the deliberate intent to commit a wrongful act or with the deliberate intent to harm [him]." Anderson v. Cobb, 258 Ga. App. 159, 160, 573 S.E.2d 417 (2002). Bolton has provided no evidence that the deputies intended to commit a wrongful act or intended to harm him. Kidd, 271 Ga. at 33, 518 S.E.2d 124 (noting that the definition of actual intent to cause injury "contains aspect of malice, perhaps a wicked or evil motive") (internal quotations and citations omitted). Moreover, even if the deputies' actions in the initial encounter, pursuit, and PIT maneuver could be considered conduct giving rise to a Fourth Amendment violation, any such conduct would not support an inference of actual malice. See Bashir v. Rockdale Cnty, Ga., 445 F.3d 1323, 1333 (11th Cir. 2006) ("Although . . . the record supports the conclusion the deputies acted unreasonably and violated [the plaintiffs] Fourth Amendment rights, [the plaintiff] has not sustained his burden of demonstrating the existence of a genuine issue of fact that the deputies possessed 'a deliberate intention to do wrong' sufficient to satisfy the actual malice standard.").

23 The Court also briefly notes that it is undisputed that Bolton did not hand the deputies his driver's license. Pl.'s Resp. to Defs.' SMF ¶ 55.

Because Deputies Collins, Sparks, and House are entitled to official immunity under Georgia law, Defendants' Motion for Summary Judgment as to the state law claim for assault and battery against Defendants in their individual capacities in Count III is GRANTED. See Baker, 760 F. App'x at 959 (affirming the grant of summary judgment to defendant officers on the plaintiff's claim for battery because the evidence did not show the officers acted with actual malice).

2. Official Capacity Claims

In addition, the state law official capacity claims against the deputies are barred by sovereign immunity. GA. CONST. art. I, § 2, ¶ IX(e). Bolton's failure to respond to Defendants' argument that sovereign immunity applies renders this argument unopposed. See Kramer v. Gwinnett Cnty., 306 F. Supp. 2d 1219, 1221 (N.D. Ga. 2004) ("[A] party's failure to respond to any portion or claim in a motion indicates such portion, claim or defense is unopposed"); LR 7.1B, NDGa ("Failure to file a response shall indicate that there is no opposition to the motion.").

"Under the Georgia Constitution, the protection of sovereign immunity extends to the state and all of its departments, including counties, and thus protects county employees who are sued in their official capacities unless sovereign immunity has been waived." Jobling v. Shelton, 334 Ga. App. 483, 486, 779 S.E.2d 705 (2015) (internal quotation marks and citation omitted). "Any waiver of sovereign immunity must be established by the party benefitting from such waiver." Holt v. Floyd Cnty, Ga., No. 4:18-CV-0112-HLM, 2018 WL 8966814, at *9 (N.D. Ga. Aug. 17, 2018) (alterations accepted) (quoting Maxwell v. Cronan, 241 Ga. App. 491, 492, 527 S.E.2d 1 (1999)). "While Georgia has waived sovereign immunity in certain circumstances, '[t]he state does not waive any immunity with respect to actions brought in the courts of the United States.' " Laster v. Ga., No. 1:20-CV-81 (LAG), 2020 WL 9348259, at *3 (M.D. Ga. July 1, 2020) (quoting O.C.G.A. § 50-21-23).

Accordingly, the Defendants' Motion for Summary Judgment as to Count III against Deputies Collins, Sparks, and House in their official capacity is GRANTED. ²⁴

24 Because Defendants' immunity arguments are successful, the Court need not consider Defendants' alternative argument that the battery claims fails as a matter of law. Defs.' Mem. at 32-33.

E. Punitive Damages

Without any substantive claims against Defendants remaining after summary judgment, Bolton's derivative claim for punitive damages (Count IV) fails as a matter of law. See Stephen A. Wheat Tr. v. Sparks, 325 Ga. App. 673, 682, 754 S.E.2d 640 (2014) ("An award of attorney fees, costs, or punitive damages is derivative of a plaintiff's substantive claims."); J. Kinson Cook of Ga., Inc. v. Heery/Mitchell, 284 Ga. App. 552, 561, 644 S.E.2d 440 (2007) (same). Accordingly, Defendants' Motion for Summary Judgment as to punitive damages is GRANTED.

F. Defendants' Objections to Bolton's Exhibits

Bolton attached several Exhibits to its opposition brief [Docs. 85-1 to 85-17]. Defendants filed objections to certain of these Exhibits. Defs. Wood, Collins, Spinks, and House's Objs. to Pl.'s Exhibits [Doc. 88] ("Defs.' Objs."). Specifically, Defendants object to the use of photographs taken from the officers body cameras as unauthenticated. Id. at 2 (objecting to Exhibits 9-13²⁵). Next, Defendants object to Exhibits 6-8, which are transcripts from the body camera footage, arguing they are improperly prepared, unofficial transcripts and the best evidence is the video itself. Id. at 3-6. Because the record contains the original body camera footage that is the source of the photographs and the transcripts, and the video controls, the Court relies on the body camera footage not the transcripts or derivative photographs, and therefore these objections are DENIED AS MOOT. See Kraus v. Martin Cnty. Sheriff's Off, 753 F. App'x 668, 673 (11th Cir. 2018) ("[W]hen a video recording exists of the pertinent events—as in this case—we view the facts in the light depicted by the videotape.") (internal citation and quotation omitted and alterations accepted); The Lamar Co. v. City of Marietta, 538 F. Supp. 2d 1366, 1376 (N.D. Ga. 2008) ("The court denies Defendants' Motion to Strike as moot with respect to the Reese Declaration, because the court did not rely on the challenged portions of that declaration in ruling on the Summary Judgment Motions."); Hinson v. Bias, 927 F.3d 1103, 1108 n.1 (11th Cir. 2019) (declining to consider an affidavit based on video footage in part because "the video footage itself provides the best evidence of what is on the video footage").

25 Defendants erroneously refer to Exhibits 5 and 15 as photographs as well, but they are not photographs, which is also implicitly acknowledged by Bolton in his response [Doc. 91], indicating that he only attached five photographs as exhibits.

Finally, Defendants argue that the Court should not consider the Onyeka Affidavit regarding an incident that occurred after the facts alleged in this case because a single incident cannot prove a causal connection and it did not occur before the shooting. Defs.' Objs. at 6-7. Defendant has filed a notice of objection, which is the proper method of objecting to the admissibility of an affidavit in support for summary judgment. Schaaf v. SmithKline Beecham Corp., No. 1:04-CV-2346-GET-CCH, 2007 WL 9676952, at *1 (N.D. Ga. July 20, 2007). Bolton relies on Onyeka's Affidavit in support of his claim against Sheriff Wood in his official capacity. Pl.'s Opp'n at 38. Because the Court granted summary judgment to Defendants on this claim based on immunity, it need not consider the substantive claim and any related evidence. Accordingly, this objection is also DENIED AS MOOT, given the fact that the official capacity claim against Sheriff Wood fails as a matter of law on other grounds. The Lamar Co., 538 F. Supp. 2d at 1376.

IV. CONCLUSION

For the foregoing reasons, it is hereby ORDERED that Defendants Lenn Wood, John Taylor Collins, Christian Spinks, and Jon House's Motion for Summary Judgment [Doc. 74] is GRANTED.

IT IS SO ORDERED this 18th day of July, 2023.