William Johnson v. County of Paulding, Georgia

Case: 18-14994 Date Filed: 07/12/2019 Page: 1 of 7

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 18-14994

Non-Argument Calendar

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D.C. Docket No. 4:18-cv-00136-HLM

WILLIAM JOHNSON,

Plaintiff-Appellant,

versus

COUNTY OF PAULDING, GEORGIA,

BOARD OF COMMISSIONERS FOR PAULDING COUNTY,

PAULDING COUNTY SHERIFF'S DEPARTMENT,

SHERIFF GARY GULLEDGE,

in his official and individual capacity,

OFFICER AL GONZALEZ,

in his official and individual capacity,

MAJOR SHELIA CRATON,

in her official and individual capacity,

Defendants-Appellees.

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Appeal from the United States District Court

for the Northern District of Georgia

________________________

(July 12, 2019)

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Before MARCUS, BRANCH and GRANT, Circuit Judges.

PER CURIAM:

William Johnson, proceeding pro se, appeals the district court’s orders

granting the defendants’ motion to dismiss and motion for summary judgment

dismissing his ten-count § 1983 complaint, which sought relief for violations of his

First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights for being

illegally arrested without probable cause, jailed, and charged with crimes he did not

commit. On appeal, Johnson argues that: (1) his false arrest claim and McLaughlin1

claim were not barred by the statute of limitations because the limitations period

began to run after he was released from pre-trial custody; (2) his false arrest claim

was not barred by Heck v. Humphrey, 512 U.S. 477 (1994); (3) a judicial officer

never made a probable cause determination for his probation warrant, for purposes

of his McLaughlin claim; and (4) his First Amendment claim is documented in the

trial court pleadings and his habeas corpus action. After careful review, we affirm.

We review summary judgment decisions de novo, viewing the facts and

inferences in the light most favorable to the non-moving party. United States v. One

Piece of Real Prop. Located at 5800 SW 74th Ave., Miami, Fla., 363 F.3d 1099,

1101 (11th Cir. 2004). Summary judgment should be granted only if “there is no

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Cty. of Riverside v. McLaughlin, 500 U.S. 44 (1991) (requiring a judicial probable cause

hearing within 48 hours of arrest).

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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). Once the movant satisfies its initial burden of

demonstrating the absence of a genuine issue of material fact, the burden shifts to

the nonmovant to “come forward with specific facts showing that there is a genuine

issue for trial.” Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997)

(quotation omitted). “A mere scintilla of evidence supporting the [nonmoving]

party’s position will not suffice.” Id. (quotation omitted).

We will not consider an issue not raised in the district court and raised for the

first time on appeal. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331

(11th Cir. 2004). In addition, “the law is by now well settled in this Circuit that a

legal claim or argument that has not been briefed before the court is deemed

abandoned and its merits will not be addressed.” Id. at 1330; Mesa Air Grp., Inc. v.

Delta Air Lines, Inc., 573 F.3d 1124, 1130 n.7 (11th Cir. 2009) (holding that an

argument not made in the initial brief is waived).

First, we are unpersuaded by Johnson’s claim that the district court erred in

granting summary judgment as to Johnson’s false arrest and McLaughlin claims on

statute-of-limitations grounds. All constitutional claims brought under 42 U.S.C. §

1983 are subject to the statute of limitations governing personal injury actions in the

state where the § 1983 action has been brought. Powell v. Thomas, 643 F.3d 1300,

1303 (11th Cir. 2011). In Georgia, actions for injuries to the person shall be brought

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within two years after the right of action accrues. Ga. Code § 9-3-33 (2010). The

statute of limitations for claims brought under § 1983 begins to run when facts

supporting the cause of action are or should be reasonably apparent to the claimant.

Brown v. Ga. Bd. of Pardons & Paroles, 335 F.3d 1259, 1261 (11th Cir. 2003) (per

curiam). Fourth Amendment false arrest claims brought pursuant to § 1983 accrue

when the claimant is detained pursuant to a legal process, not later upon his release

from custody. Wallace v. Kato, 549 U.S. 384, 389-91 (2007). Additionally, the

Fourth Amendment requires that judicial determinations of probable cause must be

conducted within 48 hours of a warrantless arrest. McLaughlin, 500 U.S. at 56.

Here, Johnson alleged that he was falsely arrested for driving under the

influence (“DUI”) on January 28, 2016. This means that Johnson would have been

detained by legal process on January 28, 2016, and that it would have been apparent

to him that he potentially had a false arrest claim on January 28, 2016. See Kato,

549 U.S. at 391; Brown, 335 F.3d at 1261. Because Johnson did not bring this action

until June 5, 2018, his false arrest claim was raised outside of the two-year statute of

limitations. See Ga. Code § 9-3-33 (2010).

As for his McLaughlin claim, the case law provides that if Johnson was

arrested without a warrant, then he was entitled to a judicial probable cause

determination within 48 hours of his arrest. See McLaughlin, 500 U.S. at 56. Since

he was arrested on January 28, 2016, it would have been apparent to Johnson that he

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potentially had a McLaughlin claim on January 30, 2016. Because Johnson did not

bring this action until June 5, 2018, his McLaughlin claim also was raised outside of

the two-year statute of limitations. See Ga. Code § 9-3-33 (2010). Thus, the district

court did not err in holding that the statute of limitations barred both of these claims.

Nor do we find any merit to Johnson’s argument that the district court erred

in rejecting his First Amendment claim. “It is now clearly established that prisoners

have a constitutional right of access to the courts,” which requires prison authorities

to assist inmates in the preparation and filing of meaningful legal papers by

providing adequate law libraries or adequate assistance from persons trained in the

law. Barbour v. Haley, 471 F.3d 1222, 1225 (11th Cir. 2006) (citation omitted). To

assert an access-to-the-courts claim, an inmate must first establish an actual injury.

Lewis v. Casey, 518 U.S. 343, 348-49 (1996). “At the summary judgment stage,

general factual allegations of injury will not suffice; rather, the plaintiff must set

forth by affidavit or other evidence specific facts, which for purposes of the summary

judgment motion will be taken to be true.” Barbour, 471 F.3d at 1225 (quotations

omitted). Further, a party’s appellate brief may not incorporate by reference

arguments made in other pleadings so as to have us “ferret out and review any and

all arguments,” to assess which ones may have merit. Four Seasons Hotels &

Resorts, B.V. v. Consorcio Barr S.A., 377 F.3d 1164, 1167, n.4 (11th Cir. 2004)

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(holding that mere citation to and incorporation of documents filed in the district

court does not comply with the various Federal Rules of Appellate Procedure).

Here, Johnson’s pleadings in the district court and this Court are insufficient

to maintain his First Amendment claim. Our case law is clear that at the summary

judgment stage, “the plaintiff must set forth by affidavit or other evidence specific

facts, which for purposes of the summary judgment motion will be taken to be true,”

Barbour, 471 F.3d at 1225 (quotations omitted), and if the plaintiff “come[s] forward

with specific facts showing that there is a genuine issue for trial,” summary judgment

should be denied. Allen, 121 F.3d at 646 (quotation omitted). As the record reflects,

Johnson responded to the defendants’ summary judgment arguments concerning his

First Amendment claim by saying only that his habeas corpus action stated sufficient

evidence to support his claim, without providing any of the relevant evidence. This

response -- which included no specific facts whatsoever -- failed to satisfy Johnson’s

burden of demonstrating to the district court that summary judgment was not

warranted. Barbour, 471 F.3d at 1225; Allen, 121 F.3d at 646. Moreover, in his

brief in this Court, Johnson failed to brief the issue on appeal or raise any argument

as to how the district court erred in its grant of summary judgment. See Access Now,

Inc., 385 F.3d at 1330. Accordingly, we affirm. 2

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We add that Johnson abandoned his right to appeal the district court’s dismissal of claims

against County of Paulding, Georgia, Board of Commissioners for Paulding County, Paulding

County Sheriff’s Department, and the individual defendants in their official capacity based on

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AFFIRMED.

Eleventh Amendment sovereign immunity, his Fifth, Sixth, Eighth and Fourteenth Amendment

claims, and state law claims. This is because he failed to provide argument on the issues in his

initial brief. See Access Now, 385 F.3d at 1330; Mesa Air Grp., 573 F.3d at 1130 n.7.

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