Duncan v. City of Sandy Springs

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

Yolanda Duncan,

Plaintiff, Case No. 1:19-cv-01129

v. Michael L. Brown

United States District Judge

City of Sandy Springs, et al.,

Defendants.

________________________________/

OPINION & ORDER

Plaintiff claims she was unlawfully arrested and subjected to

excessive force. Defendants City of Sandy Springs and Officer Ryan

Gehricke move to dismiss. (Dkt. 23.) Defendant Jason Dwain Anderson

also moves to dismiss. (Dkt. 24.) The Court grants Defendants’ motions.

I. Background

In March 2017, Plaintiff went to an LA Fitness gym to workout.

(Dkt. 22 ¶ 13.) She parked her car, went into the gym, and returned to

the parking lot. (Id. ¶ 13–14.) As she walked to her car, a police officer,

Officer Ryan Gehricke, approached her. (Id. ¶ 15.) Defendant Jason

Dwain Anderson had previously asked Officer Gehricke for help finding

someone who had hit his car. (Id. ¶ 16.) Mr. Anderson showed Officer

Gehricke a picture of a black Lexus touching or possibly on top of his car.

(Id.; Dkt. 23-2.)1 Officer Gehricke ran the tag of the Lexus and identified

Yolanda Duncan as its owner. (Dkt. 22 ¶ 17.)

Defendant Gehricke asked Plaintiff if she was Ms. Duncan and she

said yes. (Id. ¶ 18.) She also confirmed that she owned the vehicle in

contact with Mr. Anderson’s vehicle. (Id. ¶ 19.) Defendant Gehricke

asked to see her license, but Plaintiff refused to show it. (Id. ¶ 23.)

Plaintiff tried to explain to Officer Gehricke that she did not hit Mr.

Anderson’s vehicle, but he did not listen. (Id. ¶ 20.) He got angry and

began to scream at her. (Id.) He said, “[p]lease don’t make me make this

criminal! It’s civil right now!” (Id. ¶ 21.) He walked over to this patrol

car and radioed another police officer to ask if he could arrest Plaintiff.

(Id. ¶ 22.) That officer, who Plaintiff sues as Defendant John Doe, told

Officer Gehricke that he could. (Id. ¶¶ 22, 27.) Officer Gehricke then

1 Plaintiff referred to the photograph in her complaint, and Defendant

Gehricke attached it to his motion to dismiss. The photograph matches

Plaintiff’s description. In other words, the contents of the photograph are

not in dispute. Since the document is also central to the complaint, the

Court may consider it. Harris v. Ivax Corp., 182 F.3d 799, 802 n.2 (11th

Cir. 1999).

arrested Plaintiff for her failing to produce her driver’s license. (Id. ¶ 25.)

A warrant was issued after her arrest charging her with hit and run and

obstruction. (Id.) Plaintiff claims Defendant Gehricke injured her during

her arrest. (Id. ¶ 29.) Fulton County Jail refused to accept her, and the

police transported her to Northside Hospital. (Id.) In the weeks after the

arrest, Travelers Insurance Company investigated the case. (Id. ¶ 32.)

It found the accident was not Plaintiff’s fault. (Id.)

Plaintiff sues in six counts. In Count One, she claims Defendants

Gehricke and John Doe arrested her without probable cause. In Count

Two, Plaintiff brings a federal § 1983 malicious prosecution claim. She

claims Defendants Gehricke and John Doe maliciously caused a criminal

prosecution against her, even though they knew there was no probable

cause to arrest her. In Count Three, Plaintiff claims Defendant City of

Sandy Springs has municipal liability under the theories of respondeat

superior, failure to train, and a decision by a final policy maker. In Count

Four, Plaintiff brings a state law malicious prosecution claim. She claims

Defendants Gehricke and John Doe arrested her when they should have

known probable cause did not exist. She claims Defendant Anderson

caused the arrest by giving the officers false information. In Count Five,

Plaintiff claims Defendant Gehricke used excessive force when arresting

her. In Count Six, Plaintiff brings a First Amendment Retaliation claim

against Defendants Gehricke and John Doe. She claims Defendant

Gehricke only arrested her because she claimed she did not hit another

car.

II. Standard of Review

A court may dismiss a pleading for “failure to state a claim upon

which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a

motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim that is plausible on its face.’ ” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007)). At the motion to dismiss stage, “all well-

pleaded facts are accepted as true, and the reasonable inferences

therefrom are construed in the light most favorable to the plaintiff.”

Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1274 (11th Cir. 1999).

III. Discussion

A. Claims Against Officer Gehricke

1. Younger Abstention

In Younger v. Harris, 401 U.S. 37, 45 (1971), the Supreme Court

held that a federal court should refrain from interfering with a pending

state court criminal proceeding when the plaintiff seeks injunctive or

declaratory relief. A federal court should abstain under Younger when

(1) there is an ongoing state criminal proceeding; (2) the proceeding

implicates an important state interest; and (3) there is an adequate

opportunity to raise a constitutional challenge in the state court

proceeding. See Chen ex rel. V.D. v. Lester, 364 F. App’x 531, 535 (11th

Cir. 2010). Officer Gehricke claims the Court should abstain under

Younger because the Fulton County Solicitor’s Office is still investigating

the charges against Plaintiff. Plaintiff, however, filed a notice of

dismissal of state charges against her. (Dkt. 38-1.) There thus appears

to be no ongoing state criminal proceeding, and the Court will not

abstain.

2. Federal Claims & Qualified Immunity

“Qualified immunity offers complete protection for government

officials sued in their individual capacities if their conduct does not

violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Vinyard v. Wilson, 311 F.3d 1340,

1346 (11th Cir. 2002) (internal quotation marks omitted). So “[q]ualified

immunity gives government officials breathing room to make reasonable

but mistaken judgments about open legal questions.” Ashcroft v. al-Kidd,

563 U.S. 731, 743 (2011). Qualified immunity allows officials to “carry

out their discretionary duties without the fear of personal liability or

harassing litigation.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.

2002). When properly applied, qualified immunity “protects all but the

plainly incompetent or those who knowingly violate the law.” al-Kidd,

563 U.S. at 743 (internal quotation marks omitted).

Qualified immunity may attach only when the officer is “acting

within the scope of his discretionary authority when the allegedly

wrongful acts occurred.” Grider v. City of Auburn, 618 F.3d 1240, 1254

n.19 (11th Cir. 2010). A public official acts within the scope of his

discretionary authority where the acts complained of were “undertaken

pursuant to the performance of his duties and within the scope of his

authority.” See Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir. 1988).

“Once the defendant establishes that he was acting within his

discretionary authority, the burden shifts to the plaintiff to show that

qualified immunity is not appropriate.” Lee, 284 F.3d at 1194. There

seems to be no question that Defendant Gehricke acted within the scope

of his discretionary authority when arresting Plaintiff. See, e.g., Wate v.

Kubler, 839 F.3d 1012, 1018 (11th Cir. 2016) (holding that officers acted

within discretionary authority when arresting suspect). Plaintiff, thus,

has the burden of showing that qualified immunity is unavailable to her.

The qualified immunity analysis presents two questions: first,

whether the allegations taken as true establish the violation of a

constitutional right; and second, if so, whether the constitutional right

was clearly established when the violation occurred. Hadley v. Gutierrez,

526 F.3d 1324, 1329 (11th Cir. 2008). These distinct questions “do not

have to be analyzed sequentially; if the law was not clearly established,

[the court] need not decide if the [d]efendants actually violated the

[plaintiff’s] rights, although [the court is] permitted to do so.” Fils v. City

of Aventura, 647 F.3d 1272, 1287 (11th Cir. 2011). The burden thus lies

with Plaintiff to show that Defendant Gehricke’s actions violated a

constitutional right and that the right was clearly established at the time

of her arrest. See Hadley, 526 F.3d at 1329.

a. False Arrest/Unlawful Seizure (Count 1) &

Malicious Prosecution (Count 2)

i. Violation of a Constitutional Right

Plaintiff claims Defendant Gehricke violated her constitutional

rights by arresting her without probable cause, thus subjecting her to an

unlawful seizure and malicious prosecution. Both Plaintiff’s unlawful

seizure and malicious prosecution claims fail if Defendant Gehricke had

probable cause to arrest her. See Wood v. Kelser, 323 F.3d 872, 878 (11th

Cir. 2003) (“An arrest does not violate the Fourth Amendment if a police

officer has probable cause for the arrest.”); Grider, 618 F.3d at 1256

(“[T]he existence of probable cause defeats a § 1983 malicious prosecution

claim.”). An officer has probable cause to arrest “if the facts and

circumstances within the officer’s knowledge, of which he has reasonably

trustworthy information, would cause a prudent person to believe, under

the circumstances shown, that the suspect has committed, is committing,

or is about to commit an offense.” Carter v. Butts Cty., 821 F.3d 1310,

1319 (11th Cir. 2016) (quoting Kingsland v. City of Miami, 382 F.3d 1220,

1226 (11th Cir. 2004)); see also Boyd v. State, 658 S.E.2d 782, 784 (Ga.

Ct. App. 2008) (finding probable cause “if, considering the totality of the

circumstances, at the time of arrest he had a reasonable belief that the

defendant had committed a crime in his presence or within his

knowledge” (internal quotation marks omitted) (alterations adopted)).

The test for qualified immunity, however, is not whether the officer

actually had probable cause to support the arrest. The test is whether

arguable probable cause exists. In other words, “[e]ven without actual

probable cause, . . . a police officer is entitled to qualified immunity if he

had only ‘arguable’ probable cause to arrest the plaintiff.” Gates

v. Khokhar, 884 F.3d 1290, 1298 (11th Cir. 2018). Arguable probable

cause exists “where reasonable officers in the same circumstances and

possessing the same knowledge as the [defendant] could have believed

that probable cause existed to arrest.” Id. (emphasis added) (citing Redd

v. City of Enterprise, 140 F.3d 1378, 1383–84 (11th Cir. 1998)). Arguable

probable cause provides protection from both Fourth Amendment claims

for false arrest and First Amendment claims stemming from an arrest.

Id. at 1298; see also Wilkerson v. Seymour, 736 F.3d 974, 979 (11th Cir.

2013) (“[A]n arrest may be for a different crime from the one for which

probable cause actually exists, but arguable probable cause to arrest for

some offense must exist in order for officers to assert qualified immunity

from suit.” (citations omitted)).

Defendant Gehricke claims he had probable cause to arrest Plaintiff

for her refusal to show her license and her failure to notify Mr. Anderson

about the car crash. The Court agrees. First, Plaintiff did not notify Mr.

Anderson of the collision, thus violating section 40-6-271 of the Georgia

Code. That section requires a driver that collides with an unattended

vehicle to “immediately stop and [ ] then and there” provide the driver’s

name through either locating the driver of the unattended vehicle or

leaving notice in a conspicuous place.2 O.C.G.A. § 40-6-271(a). Failure

to comply is a misdemeanor. § 40-6-271(b).

Defendant Gehricke was investigating a car crash in the LA Fitness

parking lot. He had a picture of a car touching or on top of Mr. Anderson’s

car. He determined Plaintiff was the registered owner and then, when

2 The statute states, “[t]he driver of any vehicle which collides with any

vehicle which is unattended shall immediately stop and shall then and

there either locate and notify the operator or owner of such vehicle of the

name and address of the driver and owner of the vehicle striking the

unattended vehicle or shall leave in a conspicuous place on the vehicle

struck a written notice giving the name and address of the driver and the

owner of the vehicle doing the striking.” O.C.G.A. § 40-6-271(a).

he spoke with her, Plaintiff confirmed her identity. He also knew

Plaintiff had not notified Mr. Anderson of the collision or left a note with

her name and address in a conspicuous place. In Souder v. State, 687

S.E.2d 594, 598 (Ga. Ct. App. 2009), the Georgia Court of Appeals

determined similar information established probable cause for an arrest.

In that case, “the evidence established that, prior to arresting [the

suspect], the officer had obtained information from a witness that [the

suspect] had engaged in a ‘hit and run’ incident by striking an

unattended parked vehicle.” Id. “[That] information authorized the

officer to arrest [the suspect] for failing to comply with his duty upon

striking an unattended vehicle.” Id. (citing O.C.G.A. § 40-6-271(a)). The

same is true here. Defendant Gehricke had probable cause to arrest

Plaintiff for violating section 40-6-271(a) of the Georgia Code. In Souder,

the witness actually identified the suspect as the driver of the vehicle

while Mr. Anderson could not put Plaintiff in the car at the time of the

alleged accident. But, Defendant Gehricke had other evidence available

to him, including the fact that Plaintiff came out of the gym alone,

admitted it was her car, and never alleged someone else was driving.

That he did not have an eye witness does not preclude probable cause, let

alone arguable probable cause. Similarly, the fact that Mr. Anderson’s

car suffered only minor damage does not preclude a finding of probable

cause as the statute requires a party to leave a note upon striking a car,

without any requirement of damage.

Plaintiff argues section 40-6-271 only creates a duty to report and

does not creates a duty to display a driver’s license. She claims she

complied with the statute by confirming her name and ownership of the

car. She also argues that it is incorrect to say that she did not stop

because she saw Mr. Anderson before she left. The Court disagrees. The

statute instructs a driver that strikes an unattended vehicle to

immediately locate the driver of the car or to leave notice in a conspicuous

place. By her own allegations, Plaintiff did not give notice immediately,

as she went inside to workout. She thus did not comply with her duty to

report. Indeed, she never provided notice. Answering to a police officer’s

inquiry is not the same as providing immediate notice.

Plaintiff claims she told Defendant Gehricke that she did not hit

Mr. Anderson’s car. But an officer “is under no obligation to give any

credence to a suspect’s story.” Williams v. City of Homestead, 206 F.

App’x 886, 888–89 (11th Cir. 2006). In fact, it is irrelevant whether

Officer Gehricke believed Plaintiff was innocent because subjective

beliefs “play no role in ordinary, probable-cause Fourth Amendment

analysis.” Whren v. United States, 517 U.S. 806, 813 (1996); Gill v. Judd,

941 F.3d 504, 517 (11th Cir. 2019) (“Probable cause is an objective

standard.”).

Defendant Gehricke also had probable cause to arrest her for

obstruction. Section 16-10-24 of the Georgia Code states, “a person who

knowingly and willingly obstructs or hinders any law enforcement officer

. . . in the lawful discharge of his or her official duties shall be guilty of a

misdemeanor.” Defendant Gehricke was investigating a potential hit

and run. He knew that the car was Plaintiff’s and so, as a part of his

investigation, he asked her to see her identification. Plaintiff’s refusal to

show her license provided probable cause to believe she had obstructed

his investigation. Defendant Gehricke points to case law holding that a

refusal to obey an officer’s instructions to “receive certain relevant

documents” establishes probable cause for obstruction. For instance, in

Draper v. Reynolds, 369 F.3d 1270, 1276 (11th Cir. 2004), a police officer

pulled over a truck. The police officer asked for the truck driver’s log

book and bill of lading, and the truck driver refused to give them. Id. at

1273. The Eleventh Circuit found, “[b]y repeatedly refusing to comply

with [the police officer’s] reasonable instructions, and by acting

belligerently and confrontationally, [the truck driver] hindered [the

police officer] in completing the traffic stop.” Id. at 1277. The court

determined “[the police officer] had ample probable cause to arrest [the

truck driver] for violating Ga. Code Ann. § 16-10-24.” Id.

This Court acknowledges that the obstruction in Draper was

perhaps more severe than here, but the principle remains the same —

refusing to provide an officer with identification when that identification

is required for an investigation is arguably obstruction. Plaintiff says she

had confirmed her name, which was all that Defendant Gehricke needed

for his investigation. But Defendant Gehricke may have wanted to verify

her name or address, which she was required to leave by state law. Put

simply, Plaintiff did not get to define how Defendant Gehricke carried

out his lawful duties. Defendant Gehricke thus had probable cause to

arrest Plaintiff for obstruction. Or, at least, he had arguable probable

cause to arrest Plaintiff for obstruction.3 As a result, both Plaintiff’s

unlawful arrest and malicious prosecution claims fail.4

Because there was no constitutional violation, the Court need not

discuss whether the law was clearly established. See Durruthy v. Pastor,

351 F.3d 1080, 1094–95 (11th Cir. 2003) (“Because we find no

constitutional violation, we need not address whether the constitutional

right at issue was clearly established.”).

3 Defendant Gehricke also claims Plaintiff’s refusal to show her license

violated section 40-5-29(b) of the Georgia Code, which requires a licensee

to show their license upon a law enforcement officer’s demand: “[e]very

licensee shall display his or her license upon the demand of a law

enforcement officer.” That section, however, appears to apply when an

officer has pulled over a vehicle’s driver. Section 40-5-29(a) states,

“[e]very licensee shall have his or her driver’s license in his or her

immediate possession at all times when operating a motor vehicle.”

(emphasis added). That statute may address this situation, in which a

driver potentially hit an unattended vehicle and left the scene. The

statute may, however, be intended for a situation in which the officer

pulled over a driver. The parties did not point the Court to any case law

showing that statute’s breadth. And either way, Plaintiff’s refusal to

show her license was obstruction. Since the Court need not make a

finding, the Court does not decide that issue either way.

4 Plaintiff also sues Defendant John Doe for unlawful seizure and

malicious prosecution, Counts I and II. Her claims against John Doe rest

on the same basis as her claims against Defendant Gehricke. Because

the claims against Defendant Gehricke fail, the claims against Defendant

John Doe fail.

b. Excessive Force (Count 5)

The Fourth Amendment’s “reasonableness” standard governs

excessive force claims. Graham v. Connor, 490 U.S. 386, 397 (1989).

That standard turns on “whether the officer’s actions are ‘objectively

reasonable’ in light of the facts and circumstances confronting them,

without regard to their underlying intention or motivation.” Id. To

determine reasonableness, courts examine several factors, “including 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.” Lee, 284 F.3d at

1198 (quoting Graham, 490 U.S. at 396). “[S]ome 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.” See Durruthy,

351 F.3d at 1094. “[T]he application of de minimis force, without more,

will not support a claim for excessive force in violation of the Fourth

Amendment.” Id. (quoting Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir.

2000)). “An officer is entitled to qualified immunity from an excessive

force claim unless application of the excessive force standard would

inevitably lead every reasonable [official] in [the officer’s] position to

conclude the force was unlawful.” Jones v. City of Dothan, 121 F.3d 1456,

1458 (11th Cir. 1997) (alterations in original) (quoting Post v. City of Fort

Lauderdale, 7 F.3d 1552, 1559 (11th Cir. 1993)).

In large part, Plaintiff’s excessive force claim fails because her

allegations are conclusory. She alleges that “[d]uring the process of

effectuating the arrest Officer Gehricke injured Ms. Duncan” and that

she suffered injuries as a result of his “application of excessive force.”

(Dkt. 22 ¶ 29.) She further alleges that, even if some force was

appropriate, the force he used was “grossly disproportionate to that

necessary to effect the arrest.” (Id. ¶ 68.) She also claims her injuries

were severe enough that Alpharetta-Fulton County Jail refused to accept

her, and the police had to bring her to the hospital. But, she includes no

allegations about how she was injured, what Defendant Gehricke

allegedly did to hurt her, or what she was doing at the time. The Court

thus does not have enough detail to evaluate her claim that Defendant

Gehricke used excessive force. See Carter v. DeKalb Cty., 521 F. App’x

725, 728 (11th Cir. 2013) (“[D]iscovery follows the filing of a well-pleaded

complaint. It is not a device to enable the plaintiff to make a case when

his complaint fails to state a claim.” (citation and quotation marks

omitted)).

Plaintiff has not alleged facts sufficient to show that Defendant

Gehricke used excessive force, let alone to satisfy her burden of showing

he is not entitled to qualified immunity. Indeed, the Eleventh Circuit

has found more force than what Plaintiff appears to allege here not to be

excessive. For instance, in Nolin, a seventeen-year-old was in a play fight

with a friend. 207 F.3d at 1255. A police officer, thinking it was a real

fight, “grabbed him from behind by the shoulder and wrist, threw him

against a van three or four feet away, kneed him in the back and pushed

his head into the side of the van, searched his groin area in an

uncomfortable manner, and handcuffed him.” Id. In Durruthy, as a

reporter followed the command to walk from the street to the sidewalk, a

police officer “grabbed him from behind” and “pulled [him] onto the

ground, while struggling to pin his arms behind him and handcuff him.”

351 F.3d at 1085. The Eleventh Circuit found neither of those uses of

force excessive. And in Jones v. City of Dothan, two police officers

arrested a non-resisting suspect who told them he had recently

experienced a stroke. 121 F.3d at 1458. The officers “slammed [him]

against a wall, kicked his legs apart, required him to put his arms above

his head,” and tore his pants. Id. The Eleventh Circuit found that force

“may have been unnecessary, [but] the actual force used and the injury

inflicted were both minor in nature.” Id. at 1460. “Given such variables,

the application of the excessive force standard would not inevitably lead

an official in [the police officer’s] position to concluded that the force was

unlawful.” Id. at 1460–61. The uses of force in those cases were more

severe than what Plaintiff has alleged here.

Plaintiff also claims the force was excessive because she was

arrested for a minor charge. The Court agrees that the circumstances

around her arrest were not urgent. But Officer Gehricke could use some

force in making an arrest and she has not alleged facts showing the force

he allegedly used exceeded constitutional limits. Plaintiff’s excessive

force claim thus fails.

And even if the force were excessive, Defendant Gehricke would be

entitled to qualified immunity. As explained above, police officers are

entitled to qualified immunity unless application of the standard would

inevitably lead every reasonable official in the officer’s position to

conclude the force was unlawful. Id. at 1458. Plaintiff’s allegations do

not meet this standard. Plaintiff has not pointed to any case law that

would have put Defendant Gehricke on notice of a constitutional

violation. To overcome qualified immunity, the plaintiff bears the burden

of showing that a defendant violated clearly established law. See

Johnson v. Conway, 688 F. App’x 700, 706 (11th Cir. 2017). A plaintiff

typically does this by pointing to “materially similar precedent from the

Supreme Court, [the Eleventh Circuit], or the highest state court in

which the case arose.” Gates, 884 F.3d at 1296. While the facts of the

case need not be identical, “the unlawfulness of the conduct must be

apparent from pre-existing law.” Coffin v. Brandau, 642 F.3d 999, 1013

(11th Cir. 2011). In the Amended Complaint and Response to the Motion

to Dismiss, Plaintiff points the Court to no caselaw showing Defendant

Gehricke used excessive force. Plaintiff cites only two cases, Durruthy v.

Pastor, 351 F.3d 1080, and Lee v. Ferraro, 284 F.3d 1188. Lee involved a

police officer ripping a driver out of a car without warning and then

slamming the driver’s head on the car’s trunk. 284 F.3d at 1190–91. It

is not factually similar to this case and thus would not have put

Defendant Gehricke on notice that his conduct violated clearly

established law. And as explained above, Durruthy actually supports

Defendant’s Motion to Dismiss. It certainly does not clearly establish

that Defendant Gehricke’s alleged conduct was unconstitutional.

Plaintiff has thus failed to show that Defendant Gehricke’s conduct

violated clearly established law.5

c. First Amendment Retaliation

Plaintiff claims that, fundamentally, Defendant Gehricke only

arrested her because she claimed she did not hit the other car. As a

result, he arrested her in retaliation for speaking in violation of her First

Amendment Rights. In Nieves v. Bartlett, 139 S. Ct. 1715, 1727 (2019),

the Supreme Court recognized that probable cause generally bars a false

arrest claim but there is “a narrow qualification . . . for circumstances

where officers have probable cause to make arrests, but typically exercise

that discretion not to do so.” “In such cases, an unyielding requirement

to show the absence of probable cause could pose a risk that some police

officers may exploit the arrest power as a means of suppressing speech.”

Id. (internal quotation marks omitted).

5 A plaintiff can also show the law is clearly established by pointing to

broad principles of law or explicit statutory or constitutional statements.

See Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1209 (11th Cir. 2007).

Plaintiff has not attempted to do either.

For example, at many intersections, jaywalking is endemic

but rarely results in arrest. If an individual who has been

vocally complaining about police conduct is arrested for

jaywalking at such an intersection, it would seem

insufficiently protective of First Amendment rights to dismiss

the individual’s retaliatory arrest claim on the ground that

there was undoubted probable cause for the arrest.

Id. So, to bring a retaliatory arrest claim when probable cause exists, a

plaintiff must present “objective evidence that [she] was arrested when

otherwise similarly situated individuals not engaged in the same sort of

protected speech had not been.” Id. In the Amended Complaint, Plaintiff

claims “that no person has been arrested in a situation where they were

suspected of unknowingly causing four scratches to a parked vehicle and

they were not engaged in the type of protected speech [Plaintiff] was

engaged in.” (Dkt. 22 ¶ 76.) That may be true, but it misses the thrust

of why Defendant Gehricke arrested her. Officer Gehricke had probable

cause to arrest Plaintiff, not only for hit and run, but also obstruction.

The obstruction charge implicates not just her speech, but her

cooperation with a police investigation. That cooperation differs from the

jaywalking example. Obstruction creates not “a risk that some police

officers may exploit the arrest power as a means of suppressing speech,”

but a risk that police cannot perform their duties. Nieves, 139 S. Ct. at

1727. Plaintiff’s First Amendment retaliation claim thus fails.6

Even if it did not, the Supreme Court had not yet issued Nieves

when Defendant Gehricke arrested Plaintiff. As a result, “[s]ince there

was no consensus view at the time of the actions in this case, even if there

was a First Amendment violation for retaliatory arrest notwithstanding

the fact [Defendant Gehricke] had probable cause to arrest [Plaintiff],

[Defendant Gehricke] is entitled to qualified immunity.” Whittaker v.

Munoz, No. 1:17-cv-01983, 2019 WL 4194499, at *5 (D.D.C. Sept. 4,

2019).

3. State Law Malicious Prosecution

Under Georgia law, “[a] criminal prosecution which is carried on

maliciously and without any probable cause and which causes damage to

the person prosecuted shall give him a cause of action.” O.C.G.A. § 51-7-

40. “A person seeking to recover for malicious prosecution must show,

among other things, that the prosecution was instigated without

probable cause and with malice.” Carly Ray Indus., Inc. v. Mays, 841

S.E.2d 100, 102 (Ga. Ct. App. 2020). “The elements of malicious

6 This claim fails against Defendant John Doe for the same reasons.

prosecution are: (1) prosecution of a criminal offense; (2) the prosecution

instigated under a valid warrant, accusation, or summons;

(3) termination of the prosecution in the favor of the plaintiff; (4) malice;

(5) want of probable cause; and (6) damage to the plaintiff.” Jackson v.

Kmart Corp., 851 F. Supp. 469, 472 (M.D. Ga. 1994). Plaintiff’s claim for

malicious prosecution fails because Officer Gehricke had probable cause

to arrest her.7

B. Claims Against Defendant City of Sandy Springs

Plaintiff claims Defendant City of Sandy Springs has municipal

liability for her injuries. To establish municipal liability under § 1983, a

plaintiff must show “a direct causal link between a municipal policy or

custom and the alleged constitutional deprivation.” City of Canton v.

Harris, 489 U.S. 378, 385 (1989). Her federal claims against Defendant

City of Sandy Springs fail because she has not alleged a constitutional

violation. See Willis v. Mock, 600 F. App’x 679, 685 (11th Cir. 2015) (“[A]n

inquiry into a governmental entity’s custom or policy is relevant only

7 Plaintiff’s state law malicious prosecution claim also fails against

Defendant Anderson for the same reason — Defendant Gehricke had

probable cause to arrest her. Because that was the only claim she made

against Defendant Anderson, the Court grants his Motion to Dismiss

(Dkt. 24). The claim also fails against Defendant John Doe.

when a constitutional deprivation has occurred.” (quotation marks and

citation omitted)).

Her state law claim (malicious prosecution) against Defendant City

of Sandy Springs also fails because she has not shown an underlying tort.

See Cotton States Mut. Ins. Co. v. Kinzalow, 634 S.E.2d 172, 174 n.3 (Ga.

Ct. App. 2006) (“In order to succeed in a claim of respondeat superior

against an employer, one must first prove the existence of an underlying

tort, and then establish that the employee was acting in furtherance of

the employer’s business and that he was acting within the scope of the

employer’s business when the tort was committed.”). Defendant City of

Sandy Springs also has sovereign immunity. See O.C.G.A. § 36-33-3 (“A

municipal corporation shall not be liable for the torts of policemen or

other officers engaged in the discharge of the duties imposed on them by

law.”).

IV. Conclusion

The Court GRANTS Defendants City of Sandy Springs and Ryan

Gehricke’s Motion to Dismiss (Dkt. 23). The Court GRANTS Defendant

Jason Dwain Anderson’s Motion to Dismiss (Dkt. 24). The Court

DISMISSES the claims against Defendant John Doe.

SO ORDERED this 14th day of September, 2020.

L. BROWN

UNITED STATES DISTRICT JUDGE

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