Opinion
Civil Action No. 2:19-CV-111-RWS
2022-09-20
Salvatore BROES, III, Plaintiff, v. Aaron BOYCE, Deputy Sheriff; Jennifer Wright, Sergeant; Aleisha Rucker-Wright, Director; and Shelly Broes, Defendants.
Paul Gerard Wersant, Law Offices of Matthew C. Hines, Suwanee, GA, for Plaintiff. Kenneth Edward Jarrard, Melissa Anne Klatzkow, Patrick D. Jaugstetter, Jarrard & Davis, LLP, Cumming, GA, Michael James Walker, Office of Georgia Legislative Counsel, Atlanta, GA, for Defendants Aaron Boyce, Jennifer Wright, Aleisha Rucker-Wright. Christopher Warren Conowal, Conowal, Welch, Womack & Rinderknecht, LLC, Dawsonville, GA, for Defendant Shelly Renae Teems.
Paul Gerard Wersant, Law Offices of Matthew C. Hines, Suwanee, GA, for Plaintiff. Kenneth Edward Jarrard, Melissa Anne Klatzkow, Patrick D. Jaugstetter, Jarrard & Davis, LLP, Cumming, GA, Michael James Walker, Office of Georgia Legislative Counsel, Atlanta, GA, for Defendants Aaron Boyce, Jennifer Wright, Aleisha Rucker-Wright. Christopher Warren Conowal, Conowal, Welch, Womack & Rinderknecht, LLC, Dawsonville, GA, for Defendant Shelly Renae Teems. ORDER RICHARD W. STORY, United States District Judge
This case comes before the Court on Defendants Aaron Boyce, Jennifer Wright, and Aleisha Rucker-Wright's Motion for Summary Judgment [Dkt. 163] and Motion for Oral Argument [Dkt. 164]. As a preliminary matter, and notwithstanding this Court's Standing Order, the Court finds the briefing sufficient and does not believe oral argument is necessary. Accordingly, Defendants' Motion for Oral Argument [Dkt. 164] is DENIED. After reviewing the parties' briefs, the Court enters the following Order.
In addition, because it took over eight months for the Motion for Summary Judgment to ripen and it has now been pending for over ten months, the Court finds it more prudent to resolve the Motion on the briefs. That said, the Court reiterates the importance of young lawyers getting opportunities to make substantive arguments in court and encourages counsel for Defendants to continue seeking these opportunities.
BACKGROUND
I. Factual Background
A. The Parties
There are a number of Dawson County law enforcement officials involved in this case, and the Court finds it prudent to briefly explain each of their roles at the time of the events in question. Brian Chester, Jacob Crawford, and Russell Lowery were the patrol deputies who reported to the scene following the incident between Plaintiff Salvatore Broes, III and Defendant Shelly Renae Teems (formerly Shelly Broes). Patrick Apoian was a deputy sheriff and investigator in the Criminal Investigations Division ("CID") whose supervisors initially assigned the Broes case to him for further investigation. The case was subsequently reassigned to Aaron Boyce, another CID investigator.
Thurmand Atkinson was a captain who had the authority to assign and reassign cases to different investigators for their review. Jennifer Wright was a sergeant who also had the authority to assign cases to investigators for review. She was one of several individuals who reviewed Boyce's investigation file before it was sent to the District Attorney's office. Aleisha Rucker-Wright was the 911 Director for the Sheriff's Office. Wright and Rucker-Wright are married. They attended the gym that Teems worked at in 2017 but did not know her personally at the time.
B. The March 6, 2017 Incident
On March 6, 2017, Broes and Teems met at Broes' house to divide their personal property following their recent divorce. Teems had previously made a list on her iPhone of items that she was retrieving and taking with her, pursuant to their divorce decree. At some point during their meeting, Teems allowed Broes to look at and screenshot that list. However, after he got her phone, Broes searched through her personal text messages and sent at least two sexually explicit photographs of her to himself without her consent. Teems repeatedly asked for her iPhone back, but Broes refused to return it and locked Teems out of his house. He began calling Teems names and threatening to post the pictures on Facebook. At that point, Teems kicked the door open. Teems alleged that Broes put her in a choke hold, after which she bit him to escape.
Once she had her phone back, Teems called 911 to report a domestic dispute. Several police officers, including Chester, Crawford, and Lowery, went to the scene to respond to the reported incident. Crawford and Lowery primarily handled the response. At the scene, the officers spoke to both Teems and Broes. Crawford noticed an apparent bite mark on Broes' arm and redness on Teems' neck. The officers prepared an incident report, in which they stated that they were "unable to determine the primary aggressor." They decided not to arrest either party on scene, but they knew that standard practice dictated that their incident report would be forwarded to the CID for further review.
C. The Subsequent Investigations and Broes' Arrest
Wright assigned the case to Apoian, who was working in the CID. Apoian interviewed Teems on March 14, 2017, and the interview was recorded. He also spoke to Broes, but that conversation was not recorded. There were no substantive notes regarding those conversations in the investigation file. Apoian later testified that he approved of Broes' actions in taking Teems' phone and sending himself the pictures of her and concluded that Teems was not a victim since she played a part in the altercation, but he did not record any of these conclusions in the investigation file. Apoian apparently believed that he closed the case, but, again, that was not in the investigation file, and in any event, he had no authority to do so himself. Shortly after this investigation, Apoian left the CID.
Plaintiff asserts that Apoian did "place[ ] notes in the case management system which were not provided by the Dawson Defendants," but no party has produced them and there is no indication that Boyce saw or reviewed them during his investigation. [Dkt. 198-1 - Resp. to Statement of Material Facts, at ¶ 19-20, 22, 41, 85-86]. Apoian testified in his deposition that he believes that his notes were altered or deleted, but the Court has seen no evidence in support of that position. [Id.].
In May 2017, Captain Atkinson reassigned Apoian's files, including this case, to Boyce. Boyce understood the Broes case to still be open. When Boyce has a case reassigned to him, he does not usually talk to the prior investigator, relying instead on the case file and incident reports in an effort to remain unbiased. Indeed, he did not discuss the Broes case with Apoian or the responding officers. As a result, Boyce believed that Apoian's investigation had been limited to making one phone call to Broes and interviewing Teems, and he did not know that Apoian intended to close the case.
In the course of his investigation, Boyce watched Apoian's interview with Teems and unsuccessfully attempted to call Broes several times. He ultimately concluded that there was probable cause to arrest Broes. Wright and other supervisors reviewed Boyce's completed investigation file. Wright agreed with Boyce's conclusion that there was probable cause to arrest Broes and signed off on his application for an arrest warrant. On May 8, 2017, Boyce obtained a warrant to arrest Broes for aggravated assault, and he was arrested that same day. Boyce attempted to interview Broes the next day, but he invoked his right to an attorney. On May 11, 2017, Boyce interviewed Teems. During the interview, he personally viewed and took pictures of the text message thread on Teems' phone, which showed that Broes sent himself the sexually explicit pictures of Teems. As such, on May 30, 2017, Boyce obtained warrants to arrest Broes for the additional crimes of theft by taking, computer trespass, and prohibition on nude or sexually explicit transmissions. He was arrested for those additional crimes the same day.
On May 31, 2017, a magistrate judge held a preliminary hearing regarding whether there was probable cause for Broes' arrest for aggravated assault. Following testimony from Boyce and cross-examination of him, the judge ruled that there was in fact probable cause to charge Broes with that crime. Similarly, on September 27, 2017, another magistrate judge held a preliminary hearing to determine whether there was probable cause for Broes' arrest on the additional charges. Boyce again testified, and the judge concluded that there was probable cause to charge Broes with theft by taking and computer trespass, but there was not probable cause to charge him with prohibition on nude or sexually explicit transmissions.
D. Teems' Recanting and Broes' Request for Expungement
On December 18, 2017, Teems recanted her prior statements to police officers. She stated that her allegations were blown out of proportion and that she would like the charges against Broes to be dismissed. The district attorney dismissed the charges against Broes but noted that there was probable cause for his arrest. In Teems' later deposition, she stated that she only recanted under pressure and coercion from Broes and his family, and that her initial testimony and statements to the officers were true. As a result of the dismissal of the charges against him, Broes moved to expunge his record in superior court. This lawsuit followed.
II. Procedural History
On May 5, 2019, Plaintiff filed his first Complaint against Defendants in this case [Dkt. 1]. Since then, he has amended his claims twice, and his Second Amended Complaint [Dkt. 51] is the operative one here. Plaintiff's Second Amended Complaint asserted a number of claims, several of which the Court has since dismissed. At this stage, the only remaining claims include malicious prosecution against Defendants Teems, Boyce, Wright, and Rucker-Wright (Count II), and attorney's fees and litigation expenses (Count VII).
It appears that Plaintiff asserts malicious prosecution claims against Defendants under both state and federal law. [Dkt. 51 - Am. Compl., at ¶¶ 106-116].
On November 15, 2021, Defendants Boyce, Wright, and Rucker-Wright filed the instant Motion for Summary Judgment on the remaining claims against them [Dkt. 163]. Over the following months, Plaintiff sought permission to belatedly file his own cross-motion for summary judgment, which the Court denied. On July 7, 2022, Plaintiff filed what is titled an opposition to Defendants' Motion but really amounts to the cross-motion for summary judgment that the Court did not permit Plaintiff to file [Dkt. 198]. Defendants filed their reply on July 21, 2022 [Dkt. 199].
DISCUSSION
I. Summary Judgment Legal Standard
The standard for summary judgment is well-established. Federal Rule of Civil Procedure 56 requires that summary judgment be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." "The moving party bears 'the initial responsibility of informing the . . . court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.' " Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259 (11th Cir. 2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Where the moving party makes such a showing, the burden shifts to the non-movant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The applicable substantive law identifies which facts are material. Id. at 248, 106 S.Ct. 2505. A fact is not material if a dispute over that fact will not affect the outcome of the case under the governing law. Id. An issue is genuine when the evidence is such that a reasonable jury could return a verdict in favor of the non-moving party. Id. at 249-50, 106 S.Ct. 2505.
In resolving a motion for summary judgment, the court will "consider the record and draw all reasonable inferences in the light most favorable to the non-moving party." Blue v. Lopez, 901 F.3d 1352, 1357 (11th Cir. 2018). But the court is bound only to draw those inferences which are reasonable. "Where the records taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted); see also Matsushita, 475 U.S. at 586, 106 S.Ct. 1348 (once the moving party has met its burden under Rule 56(a), the non-moving party "must do more than simply show there is some metaphysical doubt as to the material facts"). II. Failure to Respond to Motion for Summary Judgment
If the nonmoving party fails to properly address the movant's assertion of fact as required by Federal Rule of Civil Procedure 56(c), the Court may: "(1) give an opportunity to properly support or address the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it; or (4) issue any other appropriate order." Fed. R. Civ. P. 56(e). Under Rule 56(e), though, "summary judgment cannot be granted by default even if there is a complete failure to respond to the motion." Fed. R. Civ. P. 56(e) advisory committee notes to 2010 amendment. "Where the nonmoving party has failed to respond to a motion for summary judgment, [the] district court cannot base the entry of summary judgment on the mere fact that the motion was unopposed, but, rather, must consider the merits of the motion." Ronald Sciortino Bankr. Estate v. Selene Fin., L.P., 2020 WL 5548340, at *3 (N.D. Ga. July 22, 2020) (citing U.S. v. One Piece of Real Prop. Located at 5800 SW 74th Ave., Miami, Fla., 363 F.3d 1099, 1101 (11th Cir. 2004)). "While the district court need not review all the evidentiary materials on file, the district court must review the evidentiary materials submitted in support of summary judgment and determine whether they establish the absence of a genuine issue of material fact." Id. (citation omitted).
The Local Rules of this Court similarly address a party's failure to respond to a motion for summary judgment or its supporting materials. Local Rule 7.1(B) provides that the "[f]ailure to file a response [to a summary judgment motion] shall indicate that there is no opposition to the motion." LR 7.1(B). In addition, Local Rule 56.1(B) explains that "[t]his Court will deem each of the movant's facts as admitted unless the [nonmoving party] directly refutes the movant's fact with concise responses supported by specific citations to evidence." LR 56.1(B)(2)(a)(2)(i).
Here, Plaintiff has not altogether failed to file a response to Defendants' Motion for Summary Judgment. However, the document that he filed is effectively a response in name only because Plaintiff did not respond to or engage with any of Defendants' substantive arguments. Indeed, Plaintiff appears to have taken his opportunity to oppose Defendants' Motion and used it to make impermissible arguments in favor of summary judgment for himself. As the Court has repeatedly made clear, Plaintiff has lost his opportunity to make these dispositive arguments during the briefing stage, and the Court will not consider them here. Moreover, the Court believes that Plaintiff's failure to meaningfully respond to Defendants' Motion essentially renders that Motion unopposed. That said, Plaintiff did file an opposition to Defendants' Statement of Material Facts, as well as his own asserted Statement of Material Facts (though many are irrelevant, speculative, or unsupported) [Dkt. 198-1]. Therefore, following the case law in this district and in an effort to resolve the claims in this case on their merits, the Court will fully consider and scrutinize Defendants' arguments for summary judgment.
III. Substantive Analysis
Defendants move for summary judgment on Plaintiff's state and federal malicious prosecution claims, arguing that they are entitled to qualified immunity under federal law, there is no evidence to support his claims against Rucker-Wright and Wright, Plaintiff was not maliciously prosecuted, and they are entitled to official immunity under state law. [Dkt. 163-1 - Mot. for Summ. J., at 4-25]. Plaintiff ostensibly disagrees, but again makes no substantive arguments in response. [Dkt. 198 - Opp. Br.]. The Court first sets out the law on Section 1983 claims and qualified immunity and addresses Defendants' argument for summary judgment as to Plaintiff's federal malicious prosecution claim. Then, it explains the law on official immunity and addresses Defendants' argument for summary judgment as to Plaintiff's state malicious prosecution claim.
Plaintiff also has pending a claim for attorneys' fees and litigation expenses that Defendants do not address. However, since that is a derivative claim, if the Court finds that Plaintiff's malicious prosecution claims fail, so too does his claim for attorneys' fees and litigation expenses.
A. Federal Malicious Prosecution Claim
1. Section 1983 Liability and Qualified Immunity Standard
To state a claim under § 1983, a plaintiff must show that he "was deprived of a federal right by a person acting under color of state law." Myers v. Bowman, 713 F.3d 1319, 1329 (11th Cir. 2013) (citation and quotations omitted). "A person acts under color of state law when he acts with authority possessed by virtue of his employment with the state." Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001) (citation omitted).
"When defending against a § 1983 claim, however, a government official may assert the defense of qualified immunity." Alston v. City of Darien, 750 F. App'x. 825, 831 (11th Cir. 2018) (citation and quotations omitted). The doctrine of qualified immunity "protects government officials who are sued under § 1983 for money damages in their individual capacities." Hardigree v. Lofton, 992 F.3d 1216, 1223 (11th Cir. 2021). It "aims to strike a balance between the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Walters v. Freeman, 572 F. App'x. 723, 726 (11th Cir. 2014) (citation and quotations omitted). Accordingly, qualified immunity protects government officials who are engaged in discretionary functions and sued in their individual capacities unless they "violate clearly established federal statutory or constitutional rights of which a reasonable person would have known." Id. (citation, punctuation, and quotations omitted).
Courts use a two-step inquiry to decide whether qualified immunity should be granted. First, the party invoking the protection of qualified immunity "must establish that he or she acted within the scope of discretionary authority when the allegedly wrongful acts occurred." Hardigree, 992 F.3d at 1223 (citation and quotations omitted). "To act within the scope of discretionary authority means that the actions were (1) undertaken pursuant to the performance of the official's duties and (2) within the scope of his authority." Collier v. Dickinson, 477 F.3d 1306, 1307 n.1 (11th Cir. 2007) (punctuation omitted). If the party was acting within the scope of his discretionary authority, the court must then determine "whether the facts, viewed in the light most favorable to the party asserting the injury, show that the officer's conduct violated a constitutional right that was clearly established at that time." Hardigree, 992 F.3d at 1223-24 (citation and quotations omitted).
A right is "clearly established" if "the state of the law on the date of the alleged misconduct placed defendants on fair warning that their alleged treatment of the plaintiff was unconstitutional." Id. at 1224 (citation and quotations omitted). More specifically, rights may be clearly established for qualified immunity purposes by three methods: "(1) case law with indistinguishable facts clearly establishing the constitutional right; (2) a broad statement of principle within the Constitution, statute, or case law that clearly establishes a constitutional right; or (3) conduct so egregious that a constitutional right was clearly violated, even in the total absence of case law." Crocker v. Beatty, 886 F.3d 1132, 1137 (11th Cir. 2018) (citation and quotations omitted). "In all three methods, the salient question is whether the state of the law at the time of the incident gave the officer fair warning that his conduct was unlawful." Powell v. Snook, 25 F.4th 912, 920-21 (11th Cir. 2022) (citation, punctuation, and quotations omitted).
Here, it is undisputed (and obvious) that Defendants were acting within the scope of their discretionary authority, so the burden shifts to Plaintiff to show that: (1) Defendants violated one of his constitutional rights; and (2) the constitutional right was clearly established at the time of the alleged violation. Plaintiff argues that Defendants violated his Fourth Amendment rights by maliciously prosecuting him.
2. Malicious Prosecution
To show that an official "violated a clearly established right under the Fourth Amendment to be free from unreasonable seizure as a result of malicious prosecution, a plaintiff must prove both a violation of her Fourth Amendment right to be free of unreasonable seizures and the elements of the common law tort of malicious prosecution." Sorrells v. Dodd, 2021 WL 4928416, at *7 (N.D. Ga. Sept. 29, 2021) (citing Williams v. Aguirre, 965 F.3d 1147, 1157 (11th Cir. 2020)).
"To overcome the first hurdle, a plaintiff must prove that he suffered a seizure pursuant to legal process that violated the Fourth Amendment." Luke v. Gulley, 2022 WL 300968, at *5 (M.D. Ga. Jan. 19, 2022) (citation and quotations omitted). "This burden requires a plaintiff to establish (1) that the legal process justifying his seizure was constitutionally infirm and (2) that his seizure would not otherwise be justified without legal process." Id. (citation, punctuation, and quotations omitted). And a plaintiff can prove that an arrest warrant was constitutionally infirm by "demonstrat[ing]: (1) that the officer who applied for the warrant should have known that his application failed to establish probable cause; or (2) that the officer intentionally or recklessly made misstatements or omissions necessary to support the warrant." Randazzo v. Fisher, 2022 WL 841757, at *14 (N.D. Ga. Mar. 9, 2022) (citations and quotations omitted).
And to overcome the second hurdle, a plaintiff must prove the elements of the common law tort of malicious prosecution, which include proof: "(1) that the officers instituted or continued a criminal prosecution against her; (2) with malice and without probable cause; (3) that terminated in her favor; and (4) caused damage to her." Sorrells, 2021 WL 4928416, at *7 (citation omitted). Because these elements "are listed in the conjunctive, . . . if Plaintiff is unable to prove any of [them], his claim necessarily fails." Luke, 2022 WL 300968, at *5 (citation and quotations omitted).
"The presence of probable cause defeats a claim of malicious prosecution." Ward v. Chafin, 2022 WL 3328875, at *9 (M.D. Ga. Aug. 11, 2022) (citing Black v. Wigington, 811 F.3d 1259, 1267 (11th Cir. 2016)). "And in the context of qualified immunity, law enforcement officials need only have had arguable probable cause." Id. (citation omitted) (emphasis in original). "Arguable probable cause exists where reasonable officers in the same circumstances and possessing the same knowledge as the Defendants could have believed probable cause existed." Id. (citation and quotations omitted). "Because arguable probable cause looks to whether the officer's actions were objectively reasonable, the officer's underlying intent or motivation is irrelevant." Id. (citation omitted). "This standard acknowledges that law enforcement officials will in some cases reasonably but mistakenly conclude that probable cause is present, and in such cases those officials should not be held personally liable." Id. (citation and quotations omitted). "Whether an officer possesses probable cause or arguable probable cause depends on the elements of the crime and the surrounding facts at the moment." Id. (citation and quotations omitted).
3. Application
Here, Plaintiff has not and cannot prove a violation of his Fourth Amendment right to be free of unreasonable seizures and the elements of the common law tort of malicious prosecution. His claim against Defendants fails for a number of interrelated reasons; for example, the legal process justifying Plaintiff's seizure was not constitutionally infirm and there is no evidence that Plaintiff's prosecution was instituted with malice. However, there is no need for the Court to delve into each reason Plaintiff's claim fails when one clearly dispositive explanation will suffice. Plaintiff's malicious prosecution claim fails because there was probable cause—or at least arguable probable cause—to support his arrest and prosecution, and "[t]he presence of probable cause defeats a claim of malicious prosecution." Ward, 2022 WL 3328875, at *9 (citation and quotations omitted).
The crux of Plaintiff's argument appears to be that there was no probable cause to arrest him for any of the alleged crimes he was charged with because Defendants disregarded the findings and conclusions of the responding officers and the initial investigator, Apoian, and then failed to disclose any of those findings or conclusions to the magistrate judges who issued the arrest warrants. [Dkt. 198-1 - Resp. to Statement of Material Facts]. Unfortunately for Plaintiff, these arguments misconstrue the relevant legal standard and discount or entirely ignore the facts that Defendants had before them when they investigated the incident and then sought and obtained arrest warrants.
The Eleventh Circuit recently clarified the probable cause standard in the context of arrests, which it acknowledged had not always been clearly and consistently articulated. See Washington v. Howard, 25 F.4th 891, 898-902 (11th Cir. 2022). "In the context of an arrest, probable cause exists when the facts, considering the totality of the circumstances and viewed from the perspective of a reasonable officer, establish a probability or substantial chance of criminal activity." Parker v. Thurman, 2022 WL 1184403, at *3 (11th Cir. Apr. 21, 2022) (citing District of Columbia v. Wesby, — U.S. —, 138 S. Ct. 577, 586, 199 L.Ed.2d 453 (2018)). And, when evaluating whether there was probable cause for an arrest, the Court should "ask whether a reasonable officer could conclude that there was a substantial chance of criminal activity." Id. (citation and quotations omitted). "Probable cause does not require conclusive evidence and is not a high bar." Id. (citation and quotations omitted).
Here, Plaintiff was arrested for the alleged violation of four Georgia statutes: aggravated assault under O.C.G.A. § 16-5-21; theft by taking under O.C.G.A. § 16-8-2; nude electronic transmission under O.C.G.A. § 16-11-90; and computer trespass under O.C.G.A. § 16-9-93(B). The Court will address each in turn.
First, O.C.G.A. § 16-5-21(a) provides that a person commits an aggravated assault "when he or she assaults . . . (2) [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury; [or] (3) [w]ith any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in strangulation." Georgia law is clear that using one's hands to choke someone can constitute aggravated assault. See Maxwell v. State, 348 Ga.App. 870, 825 S.E.2d 420, 422 (2019). There is no real question that there was probable cause to arrest Plaintiff for the crime of aggravated assault. Here, the record shows the steps that Defendant Boyce took during his investigation of the incident. During his investigation, he reviewed the case file, including the initial report from the responding officers, watched the videotaped interview with Teems, and attempted to contact Broes for an interview. [Dkt. 163-1 - Mot. for Summ. J., at 14-16; Dkt. 163-2 - Statement of Material Facts, at ¶¶ 50-53]. In so doing, he learned that Teems had contemporaneously and repeatedly stated that Broes had put his hands around her neck and choked her before she was able to escape, and that the responding officers noted that her neck appeared red in the immediate aftermath of the incident. When faced with these facts, a reasonable officer could conclude that there was a substantial chance that Broes had committed aggravated assault against Teems.
In addition, the magistrate judge from whom Boyce sought the arrest warrant agreed that there was probable cause that Broes committed aggravated assault when he issued the warrant. [Dkt. 163-2 - Statement of Material Facts, at ¶ 72]. "That a neutral magistrate issued the warrant is not dispositive of the existence of probable cause, but it is the clearest indication that [Defendants] acted in objective good faith and held a reasonable belief that the warrant application was supported by probable cause." Kinnemore v. Cochran, 2021 WL 5356281, at *4 (11th Cir. Nov. 17, 2021) (citation, punctuation, and quotations omitted). Nevertheless, Plaintiff argues that the magistrate judges could not have been neutral because Defendant Boyce did not present all the relevant information to them—namely, that the responding deputies did not arrest Broes at the scene of the incident and the initial investigator, Apoian, did not subsequently believe that there was probable cause to arrest him. [Dkt. 198-1 - Resp. to Statement of Material Facts, at ¶¶ 57-58, 66, 72-73].
As to the first point, Plaintiff misunderstands the legal process. It is not the job of the responding deputies to make a final, conclusive determination about whether or not probable cause exists. Rather, they conduct an immediate inquiry, make a contemporaneous determination, and then pass their report along to the investigations team, which then investigates further and decides whether to seek an arrest warrant. [Dkt. 163-1 - Mot. for Summ. J., at 12-13]. The fact that Defendant Boyce, after conducting his own investigation, did not disclose to the magistrate judge that the responding deputies did not arrest Broes was not deceptive and did not diminish the strength of the magistrate judge's determination. And as to Plaintiff's second point that Boyce improperly failed to disclose that Apoian had earlier found no probable cause to arrest Broes and closed the case, that is simply not supported by the evidence. Indeed, the record shows that when the case was reassigned to Boyce, it was still listed as open, and it appeared to him that Apoian had interviewed Teems and attempted to contact Broes but had not yet reached any conclusions. [Id.]. All that matters is what Defendant Boyce himself knew at the time of his investigation and the probable cause hearing, and since he knew nothing about Apoian's apparent conclusions, he cannot be said to have withheld material information from the magistrate judge. Accordingly, this Court finds that there was probable cause to arrest Broes for aggravated assault.
Even so, it would have been obvious to the magistrate judge that the responding deputies did not find probable cause to arrest Broes at the scene, because Broes was not in jail at the time and the magistrate judge was conducting a hearing to determine whether there was probable cause to arrest Broes for the first time following the incident in question.
Plaintiff speculates that someone must have altered or deleted his notes in the case file. This amounts to nothing more than rank speculation, and, without any sort of supporting evidence, is insufficient to create a genuine dispute of material fact.
Second, O.C.G.A. § 16-8-2 states that a person commits theft by taking "when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated." Here, Defendant Boyce's investigation revealed that Teems handed Plaintiff her phone so that he could review a list she prepared and take a screenshot of it, but that he subsequently began searching through her messages, sent several pictures to himself, refused her demands to return the phone, and held onto it while he locked her out of the house. [Dkt. 163-1 - Mot. for Summ. J., at 17-18]. Plaintiff does not deny these facts, but rather contends that Teems handed him her phone voluntarily and he returned it after a few minutes. [Dkt. 198-1 - Statement of Material Facts, at ¶¶ 30-33]. Both points are irrelevant. The statute itself and Georgia law have long been clear that "[t]he manner in which the property is appropriated is irrelevant," since an individual can lawfully take possession of property but subsequently exceed their authorization to possess or use that property. Tate v. Holloway, 231 Ga.App. 831, 499 S.E.2d 72, 74 (1998). Similarly, "it is irrelevant whether deprivation was permanent or temporary," because "[t]he intent to withhold property of another even temporarily satisfies the mens rea requirement of the theft by taking statute." Ferrell v. State, 172 Ga.App. 238, 322 S.E.2d 751, 751 (1984) (citations omitted). The Court finds that there was probable cause to arrest Broes for theft by taking.
The magistrate judge also found probable cause to support this charge, lending further credence to Defendants' determination. [Dkt. 163-2 - Statement of Material Facts, at ¶ 75].
Third, O.C.G.A. § 16-11-90 provides, in relevant part, that a person commits unlawful nude electronic transmission:
b. if he or she, knowing the content of a transmission or post, knowingly and without the consent of the depicted person:
Here, through his investigation, Defendant Boyce learned that Broes had searched through Teems' phone and located sexually explicit photographs of her, which he sent to himself by text message and threatened to post on Facebook. [Dkt. 163-1 - Mot. for Summ. J., at 19-20]. Plaintiff argues that Apoian did not find Teems to be credible and, in any event, contends that Defendant Boyce only looked at the text message on Teems' phone but "never viewed Broes' phone to confirm he actually received or still had the photos." [Dkt. 198-1 - Resp. to Statement of Material Facts, at ¶ 63]. These are not serious arguments meriting extensive discussion. Defendant Boyce saw the text messages and sexually explicit images that Plaintiff sent himself via Teems' phone and learned in his investigation that Plaintiff threatened to post them on Facebook, which can quite clearly constitute harassment. The Court finds that there was probable cause—or at least arguable probable cause—to arrest Broes for nude electronic transmission.1. Electronically transmits or posts, in one or more transmissions or posts, a photograph or video which depicts nudity or sexually explicit conduct of an adult . . . when the transmission or post is harassment or causes financial loss to the depicted person and serves no legitimate purpose to the depicted person.
The Court acknowledges that the magistrate judge ultimately concluded that there was not probable cause to arrest Plaintiff for a violation of this statute. [Dkt. 163-2 - Statement of Material Facts, at ¶ 75]. However, that does not change the Court's conclusion here. "Indeed, it is inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude that probable cause is present, and in such cases those officials should not be held personally liable." Grider v. City of Auburn, Ala., 618 F.3d 1240, 1257 (11th Cir. 2010) (citations and quotations omitted).
Finally, O.C.G.A. § 16-9-93 details that a person commits computer trespass when they "use[ ] a computer or computer network with knowledge that such use is without authority and with the intention of: . . . [o]bstructing, interrupting, or in any way interfering with the use of a computer program or data." O.C.G.A. § 16-9-93(b)(2). Here, Defendant Boyce learned through his investigation that Plaintiff used Teems' phone to send sexually explicit pictures of her to himself without her permission. [Dkt. 163-1 - Mot. for Summ. J., at 21-22]. At the time, reasonable minds could appropriately debate whether such an action constituted "obstructing, interrupting, or in any way interfering with the use of [Teems'] data." Indeed, such an interpretation is bolstered by the fact that the magistrate judge concluded there was probable cause to arrest Plaintiff for computer trespass. [Dkt. 163-2 - Statement of Material Facts, at ¶ 75]. In the years since, Defendants acknowledge that the Georgia Supreme Court has held that actions similar to the one at issue here do not amount to computer trespass. [Dkt. 163-1 - Mot. for Summ. J., at 22-23]. But while that is the law in Georgia going forward, it cannot be used to retroactively impose personal liability on a defendant. As such, the Court finds that at the time of the events in question, there was probable cause—or at least arguable probable cause—to arrest Broes for computer trespass.
Accordingly, Defendants are entitled to qualified immunity on Plaintiff's federal law malicious prosecution claim against them, and their motion for summary judgment as to that claim is GRANTED.
B. State Malicious Prosecution Claim
Defendants also move for summary judgment on Plaintiff's state law malicious prosecution claim, arguing that they are entitled to official immunity from that claim. [Dkt. 163-1 - Mot. for Summ. J., at 24-25]. "Georgia's doctrine of official immunity—much like qualified immunity under federal law—offers public officers and employees limited protection from suit in their personal capacity." Bohanan v. Paulding Cnty., Ga., 479 F. Supp. 3d 1345, 1364 (N.D. Ga. 2020) (citation and quotations omitted). In particular, "public agents are immune from liability for their discretionary acts unless they are done with malice or intent to injure." Cantrell v. White, 178 F. Supp. 3d 1308, 1318 (N.D. Ga. 2016) (citation, punctuation, and quotations omitted).
"[A]ctual malice is a demanding standard [that] requires an officer to act with a deliberate intention to do a wrongful act." Id. (citations and quotations omitted); see also, e.g., Felio v. Hyatt, 639 F. App'x. 604, 611 (11th Cir. 2016) (the standard "asks whether the defendant had a wicked motive, or intended to cause harm to the plaintiff, rather than just intending to do the act that resulted in the plaintiff's injury") (citation omitted). "[T]he mere fact that a police officer's decision-making was misguided or even reckless is not enough to support a finding of actual malice." Bohanan, 479 F. Supp. 3d at 1365 (citation and punctuation omitted). "Absent any actual malice, the Plaintiff must proceed under the theory that malice is to be inferred due to a total lack of probable cause." Luke, 2022 WL 300968, at *12 (citations and quotations omitted) (emphasis in original). But "where there is no evidence of malice other than such inference as may be drawn from proof of want of probable cause, and that proof shows some circumstances pointing to the guilt of the accused, although insufficient to exclude every other reasonable hypothesis, the essential ingredient of malice is not so established as to entitle the plaintiff in an action for malicious prosecution (or malicious arrest) to recover." Id. (citation and quotations omitted). "Similarly, Georgia's courts have interpreted the phrase 'actual intent to cause injury,' as used in the Georgia Constitution, 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.' " Bohanan, 479 F. Supp. 3d at 1365 (citation and quotations omitted).
Here, there is no evidence that Defendants acted with malice or the intent to cause injury when investigating Plaintiff or pursuing and obtaining warrants for his arrest. At various points in his filings, Plaintiff appears to argue that "malice is established by showing that Wright and Boyce were determined to prosecute Broes, regardless of the prior evidence." [Dkt. 198 - Opp. Br., at 25]. Indeed, he accuses various Defendants of, at best, ignoring investigative notes and evidence tending to support his innocence and, at worst, altering and deleting that evidence altogether. [Dkt. 198-1 - Resp. to Statement of Material Facts]. These assertions are speculative and unsupported, and therefore cannot serve as the basis for Plaintiff's allegation that his arrest and prosecution were instituted with malice or intent to cause injury. In addition, as has been made abundantly clear, Plaintiff has not demonstrated a lack of probable cause (and certainly not a total lack of probable cause). And because Plaintiff has not shown that Defendants acted with malice or the intent to cause injury, Defendants are entitled to official immunity on Plaintiff's state law malicious prosecution claim against them.
Accordingly, Defendants' motion for summary judgment as to Plaintiff's state law malicious prosecution claim against them is GRANTED.
CONCLUSION
For the foregoing reasons, Defendants Aaron Boyce, Jennifer Wright, and Aleisha Rucker-Wright's Motion for Summary Judgment [Dkt. 163] is GRANTED and their Motion for Oral Argument [Dkt. 164] is DENIED. These defendants are dismissed from the case.
Having resolved all claims against Defendants Boyce, Wright, and Rucker-Wright, the only remaining claim in this case is Plaintiff's state law malicious prosecution claim against Defendant Shelley Teems. However, the Court declines to exercise supplemental jurisdiction over this claim. See Cook v. Cobb Cnty, Ga., 2022 WL 3758235, at *9 (N.D. Ga. Aug. 29, 2022) ("28 U.S.C. § 1367 empowers a trial court to decline to exercise supplemental jurisdiction over a state law claim if it has dismissed all of the related claims over which it has jurisdiction.") (citation, punctuation, and quotations omitted).
SO ORDERED this 20th day of September, 2022.