Lori Sene Sorrow v. City of Atlanta

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-14723

____________________

LORI SENE SORROW,

Plaintiff-Appellant,

versus

CITY OF ATLANTA,

Defendant-Appellee,

MICHAEL NAGY, et al.,

Defendants.

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2 Opinion of the Court 20-14723

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:17-cv-02908-MLB

____________________

Before WILLIAM PRYOR, Chief Judge, LUCK, and ED CARNES, Circuit

Judges.

PER CURIAM:

Lori Sene Sorrow filed suit under 42 U.S.C. section 1983

alleging that the City of Atlanta and three city officials—Michael

Nagy, Scott Banks, and Philip Proctor (collectively, the individual

defendants)—violated her constitutional rights by targeting her for

violations of the city’s building code. The two claims at issue on

appeal, a Fourth Amendment unreasonable search and seizure

claim against all defendants (count one), and a Fourth Amendment

failure to train claim against the city (count three), involve an

administrative search warrant that was executed on Sorrow’s

home. Sorrow argues that the district court erred in: (1) dismissing

count one as to the individual defendants on qualified immunity

grounds; (2) granting the city’s motion for judgment on the

pleadings as to count one; and (3) dismissing count three. After

review, we affirm.

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20-14723 Opinion of the Court 3

BACKGROUND FACTS AND PROCEDURAL HISTORY

We draw the following factual background from Sorrow’s

second amended complaint, the operative pleading in this action.

Sorrow has resided in a 1930s-era bungalow in Atlanta’s Home

Park neighborhood since 1996. Sorrow jointly owns the property

and has made numerous repairs and improvements to it. The city

and a neighbor made inquiries about certain repairs and an issue

with Sorrow’s land in 2003, 2008, and 2010. In each instance,

Sorrow received confirmation from the city that her property

complied with city codes.

In 2010, Sorrow obtained a general repair permit, valid for

one year, and made various repairs, including to the roof and attic

of her home. A neighbor complained in 2011 that Sorrow was

adding a second story. However, when the city inspected the

property in January and November of 2012, it found no building

code violations.

In December 2013, developer 380 Properties, LLC acquired

two properties adjacent to Sorrow’s home. Despite opposition

from Sorrow and other community members, the properties were

rezoned for the development of a hotel. Later, 380 Properties sued

Sorrow regarding property rights to an alley between her home

and the proposed hotel site. Sorrow counterclaimed, asserting

various easements and prescriptive rights.

To defeat Sorrow’s counterclaims, 380 Properties began

lobbying the city to bring code violations against Sorrow.

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Although city officials only visited Sorrow’s property

approximately six times from 1990 to 2013, they made

approximately thirty-two visits from 2013 to 2015. Sorrow was

issued four citations for alleged code violations from March 2014

to April 2015. The latter three citations were issued at the direction

of Nagy, who was then interim director of the city’s Bureau of

Buildings. Sorrow pleaded no contest to the first citation, and the

others were eventually dismissed with prejudice.

In August 2015, the city applied for an administrative search

warrant on Sorrow’s home to seek evidence of an illegal second

story addition and in support of the citations. At Nagy’s direction,

Banks and Proctor—code enforcement officials for the Bureau of

Buildings—made alleged misrepresentations to the municipal

court in applying for the warrant. Specifically, Banks and Proctor:

(1) omitted that a complaint about an illegal second story had

previously been filed in 2011, but no violations were found when

the city inspected the property in 2012; (2) “improperly cited 2012

building code violations on alleged work that occurred prior to

2012;” (3) “lied to create a false sense of urgency” by claiming

occupants of the building could be in danger; and (4) “falsely

contended that the alleged second story impinged upon the alley,

the rights to which are in dispute between Plaintiff and 380

Properties.”

Before the warrant was executed, an Atlanta Police

Department code compliance officer visited Sorrow’s property in

relation to a complaint by 380 Properties about an attic door. The

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officer determined that the attic door was compliant. The officer’s

supervisor stated in an email that the officer had also been asked to

look for other code compliance issues and found none.

The city executed the administrative search warrant one day

after it expired. Banks, Proctor, and other officials took numerous

photographs of the interior of Sorrow’s home and did not perform

a structural analysis. Sorrow later obtained a municipal court order

suppressing this evidence and requiring the city to turn over the

photographs. However, the city returned only a few of the images.

Sorrow initially filed suit under 42 U.S.C. section 1983

against only the city. In her first amended complaint, she alleged

claims for unreasonable search and seizure, failure to train,

selective prosecution, and malicious prosecution. The district

court granted the city’s motion to dismiss all claims except count

one, the unreasonable search and seizure claim based on the

administrative search warrant. Relevant here, the district court

dismissed the failure to train claim in count three because Sorrow

failed to show that the city’s need for training with respect to

administrative search warrants was obvious. As to count one, the

city argued that the search was not unreasonable merely because

the warrant had expired. But the district court observed that

Sorrow had also claimed the city had obtained the warrant based

on false representations and omissions, and it therefore concluded

she had stated a Fourth Amendment claim.

Sorrow filed her second amended complaint, repleading the

same claims and adding the individual defendants to all but the

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failure to train claim in count three. The individual defendants

moved to dismiss on statute of limitations and qualified immunity

grounds, attaching the administrative search warrant and Banks

and Proctor’s affidavits to their motion.

The district court granted the individual defendants’ motion

to dismiss. First, the district court concluded that all claims (except

the unreasonable search and seizure claim in count one) were

dismissed for the same reasons as before. Second, the district court

concluded that count one was barred by the statute of limitations

to the extent it was based on the execution of the administrative

search warrant, but not to the extent it was based on alleged false

statements and the omission. Third, the district court concluded

that the individual defendants were entitled to qualified immunity

because the affidavits supported a finding of probable cause

regardless of the misrepresentations and the omission alleged in

Sorrow’s second amended complaint. Notably, Banks and Proctor

“averred that, in 2015, they conducted a visual inspection of the

exterior of the home and saw a second story for which no one had

obtained the necessary approval and permit.”

The district court later granted the city’s motion for

judgment on the pleadings as to count one. The district court

concluded that because Nagy was entitled to qualified immunity,

and Sorrow’s municipal liability claim was based solely on his

actions as an official policymaker, the city could not be held liable

for Nagy’s conduct. This appeal followed.

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STANDARD OF REVIEW

We review the district court’s order granting a motion to

dismiss under Federal Rule of Civil Procedure 12(b)(6) de novo,

“accepting the factual allegations in the complaint as true and

construing them in the light most favorable to the plaintiff.” Hill

v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). Under this standard,

“a complaint must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief 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, 570 (2007)).

We likewise review de novo a district court’s entry of

judgment on the pleadings, accepting the facts of the complaint as

true and viewing them in the light most favorable to the

nonmoving party. Horsley v. Feldt, 304 F.3d 1125, 1131 (11th Cir.

2002). “Judgment on the pleadings is appropriate where there are

no material facts in dispute and the moving party is entitled to

judgment as a matter of law.” Perez v. Wells Fargo N.A., 774 F.3d

1329, 1335 (11th Cir. 2014) (quotation marks omitted).

DISCUSSION

Dismissal of count one on qualified immunity grounds

Sorrow first contends that the district court erred in granting

the individual defendants’ motion to dismiss count one on qualified

immunity grounds because she plausibly alleged the individual

defendants violated her Fourth Amendment rights when they

made false statements in their affidavits for the administrative

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search warrant. She argues that the district court ignored her well

pleaded allegations and made improper factual findings.

“Qualified immunity shields government officials from

liability for civil damages for torts committed while performing

discretionary duties unless their conduct violates a clearly

established statutory or constitutional right.” Hadley v. Gutierrez,

526 F.3d 1324, 1329 (11th Cir. 2008). To receive qualified

immunity, government officials must first establish that they were

acting within the scope of their discretionary authority when the

alleged wrongful conduct occurred. Vinyard v. Wilson, 311 F.3d

1340, 1346 (11th Cir. 2002). There is no dispute that the individual

defendants were acting within the scope of their discretionary

authority when they applied for the administrative search warrant.

Therefore, to overcome the individual defendants’ qualified

immunity defense, the burden shifted to Sorrow to show: (1) the

individual defendants violated a constitutional right, and (2) the

violated right was clearly established. See Corbitt v. Vickers, 929

F.3d 1304, 1311 (11th Cir. 2019).

Although the defense of qualified immunity is typically

addressed at the summary judgment stage, it may be raised and

considered upon a motion to dismiss. St. George v. Pinellas Cnty.,

285 F.3d 1334, 1337 (11th Cir. 2002). A motion to dismiss on

qualified immunity grounds “will be granted if the complaint fails

to allege the violation of a clearly established constitutional right.”

Id. (quotation marks omitted); see also Keating v. City of Miami,

598 F.3d 753, 760 (11th Cir. 2010) (stating that at the motion to

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dismiss stage, “the qualified immunity inquiry and the [r]ule

12(b)(6) standard become intertwined” (quotation marks

omitted)).

Under Franks v. Delaware, 438 U.S. 154 (1978), a search

warrant violates the Fourth Amendment if the affidavit supporting

the warrant contains statements that are deliberately false or made

with reckless disregard for the truth and such statements are

necessary to a finding of probable cause. See Madiwale v. Savaiko,

117 F.3d 1321, 1326 (11th Cir. 1997). The rule in Franks also

extends to omissions “made intentionally or with a reckless

disregard for the accuracy of the affidavit” if the inclusion of such

omissions “would have prevented a finding of probable cause.” Id.

at 1326–27 (quotation marks omitted). If the allegedly false

material is set aside, and “there remains sufficient content in the

warrant affidavit to support a finding of probable cause,” the

warrant is valid. Id. at 1326 (quoting Franks, 438 U.S. at 171); see

also Dahl v. Holley, 312 F.3d 1228, 1235 (11th Cir. 2002) (explaining

that a “warrant is valid if, absent the misstatements or omissions,

there remains sufficient content to support a finding of probable

cause”), abrogated on other grounds by Lozman v. City of Riviera

Beach, Fla., 138 S. Ct. 1945 (2018).

The district court did not err in dismissing count one on

qualified immunity grounds because, in view of Banks and

Proctor’s affidavits, there was probable cause for the search despite

the alleged false statements. As an initial matter, we note that the

district court properly considered the warrant affidavits attached to

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the individual defendants’ motion to dismiss, and we may do the

same. Ordinarily, a district court must convert a motion to dismiss

under rule 12(b)(6) into a motion for summary judgment if it

considers materials outside the pleadings. SFM Holdings, Ltd. v.

Banc of Am. Sec., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010); see

also St. George, 285 F.3d at 1337. However, the district court may

consider an extrinsic document without converting a motion to

dismiss into one for summary judgment if the document is “(1)

central to the plaintiff’s claim, and (2) its authenticity is not

challenged.” SFM Holdings, 600 F.3d at 1337.

In count one, Sorrow alleged that Banks and Proctor, under

Nagy’s direction, violated her Fourth Amendment rights by

submitting affidavits for the administrative search warrant that

contained “false statements and material omissions designed to

deceive and mislead the Municipal Court of Atlanta into believing

that probable cause existed as to alleged code violations” at her

home. The affidavits are thus central to Sorrow’s claim, and

Sorrow does not dispute their authenticity, such that they may be

considered without converting the individual defendants’ motion

to dismiss to one for summary judgment.

To determine whether Sorrow plausibly alleged a Fourth

Amendment violation, we must determine whether the affidavits

support a finding of probable cause notwithstanding the portions

challenged by Sorrow. See Madiwale, 117 F.3d at 1326–27.

Turning to the affidavits, Banks and Proctor averred that in May

2015, they made an exterior inspection of Sorrow’s home and

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discovered two violations of the 2012 building code: (1) a violation

of section 103.1, failure to secure approved plans for the addition

of a second story, and (2) a violation of section 104.4, failure to

secure a building permit for the construction of the second story.

Further, they stated that the code violations “likely compromised

the interior structure” of Sorrow’s home, which could “likely

present conditions that could result in immediate danger” to

occupants. The affidavits also stated that the code violations, and

other uncited violations, had not been corrected and were still

outstanding. Based on this information, the municipal court judge

concluded that Sorrow’s home had been “modified into a two-

story structure without proper permits,” and was in violation of the

cited provisions of the building code.

Turning to the second amended complaint, Sorrow

identified one omission and three false statements in relation to

Banks and Proctor’s application for the warrant. She alleged that

they: (1) omitted the fact that the city found no illegal second story

when it twice inspected her property in 2012; (2) “improperly cited

2012 building code violations on alleged work that occurred prior

to 2012;” (3) made false claims that occupants of the building were

in danger; and (4) “falsely contended that the alleged second story

impinged upon the alley.”

As the district court did, we conclude that even when these

alleged misrepresentations are removed from the affidavits, and

the alleged omission included, “there remains sufficient content in

the warrant affidavit to support a finding of probable cause.” See

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Madiwale, 117 F.3d at 1326 (quoting Franks, 438 U.S. at 171).

Therefore, Sorrow has failed to plausibly allege a Fourth

Amendment violation based on the administrative search warrant,

and the individual defendants are entitled to qualified immunity.

See St. George, 285 F.3d at 1337; see also Griffin Indus., Inc. v. Irvin,

496 F.3d 1189, 1205–06 (11th Cir. 2007) (“Our duty to accept the

facts in the complaint as true does not require us to ignore specific

factual details of the pleading in favor of general or conclusory

allegations.”).

Significantly, none of the alleged misrepresentations

undermine Banks and Proctor’s assertion that in May 2015, they

personally inspected the exterior of Sorrow’s home and observed

code violations based on the construction of a second story, which

supports the municipal court’s finding of probable cause.1

Including the alleged omission of the fact that there was no code

violation in 2012 has no impact on what Banks and Proctor said

1

The parties do not address the requisite level of probable cause for an

administrative search warrant. We note that in general, administrative search

warrants require a lesser showing of probable cause than criminal search

warrants and may be obtained upon “a showing of specific evidence sufficient

to support a reasonable suspicion of a violation.” W. Point-Pepperell, Inc. v.

Donovan, 689 F.2d 950, 958 (11th Cir. 1982) (discussing inspection warrant

obtained by the Occupational Safety and Health Commission); cf. United

States v. Kapordelis, 569 F.3d 1291, 1310 (11th Cir. 2009) (stating probable

cause to support a criminal search warrant “exists when the totality of the

circumstances allows the conclusion that there is a fair probability that

contraband or evidence of a crime will be found in a particular place”

(quotation marks omitted)).

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they observed in May 2015, when they conducted their exterior

inspection of Sorrow’s home. Similarly, excluding the alleged

misrepresentations concerning the potential danger to occupants

does not affect Banks and Proctor’s statement that they observed a

second story, constructed in violation of two city building codes, in

May 2015. The alleged misrepresentation that the second story

“impinged upon the alley” is not contained in the affidavits, but

instead stated in the warrant itself. Sorrow argues it is reasonable

to infer Banks and Proctor communicated this statement to the

municipal court judge during a bench conference. But even so,

there was probable cause to issue the warrant without this

statement.

The other alleged misrepresentation concerning improper

citation to “2012 building code violations on alleged work that

occurred prior to 2012” does not accurately reflect what the

affidavits say. The affidavits make no mention of work that

occurred prior to 2012, and instead state that Banks and Proctor

observed violations of the 2012 building code when they conducted

their exterior inspection in May 2015. Because none of the alleged

misrepresentations in the second amended complaint were

necessary to a finding of probable cause, and because including the

alleged omission would not have prevented a finding of probable

cause, Sorrow failed to assert a Fourth Amendment violation under

Franks. See Madiwale, 117 F.3d at 1326–27.

Sorrow argues that she did challenge “whether there existed

a second story on the house . . . or whether, if it existed, it was

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14 Opinion of the Court 20-14723

permitted,” and that a false statement about the existence of a

second story “would have eliminated any possible finding of

probable cause.” In support of this argument, Sorrow notes that

she: (1) alleged in her second amended complaint that there was

no second story being added to her home in 2012; (2) argued in her

response to the city’s motion for judgment on the pleadings that

there never had been a second story on her home; and (3)

repeatedly referred to an “alleged” second story in the second

amended complaint, thereby raising “the issue of whether the

affiants falsely swore that they had observed a second story.” But

what Sorrow argued in response to the city’s motion is immaterial

to what she pleaded, and the other allegations she mentions, even

when viewed in the light most favorable to her, do not support a

plausible inference that Banks and Proctor made a deliberate or

reckless misrepresentation about the existence of a second story in

order to obtain the administrative search warrant.

Sorrow also contends that the district court engaged in

improper fact-finding in ruling on the motion to dismiss, finding

that Banks and Proctor saw a second story on her home and made

no misrepresentations in their affidavits. The district court,

however, did not make any such findings and expressly noted it had

found only that “the search warrant affiants alleged there was an

improper second story when they conducted a visual inspection of

Plaintiff’s house in the weeks before obtaining the 2015 warrant.”

We too make no determination as to the truth of Banks and

Proctor’s assertion about what they saw. Instead, we merely

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conclude that this assertion supported a finding of probable cause

and was not one of the alleged misrepresentations in the second

amended complaint.

In further support of her argument that she plausibly alleged

a Fourth Amendment violation in count one, Sorrow notes that

when she alleged the same claim (against the city alone) in her first

amended complaint, the district court allowed the claim to

proceed. Unlike the individual defendants, however, the city did

not—and could not—assert a qualified immunity defense, and it

sought dismissal on different grounds. Thus, the district court’s

ruling that Sorrow had stated a claim against the city in her first

amended complaint did not preclude it from subsequently ruling,

in view of the affidavits, that the individual defendants were

entitled to qualified immunity. 2

Judgment on the pleadings as to count one

Sorrow contends that because the individual defendants are

not entitled to qualified immunity on count one, the district court’s

order granting the city’s motion for judgment on the pleadings as

to count one should also be reversed. She argues that the district

2

Having found Sorrow failed to plausibly allege a Fourth Amendment

violation based on the administrative search warrant, we do not reach her

arguments that, in the event of reversal, she should be allowed leave to file a

third amended complaint and her claim for attorney’s fees should be

reinstated.

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16 Opinion of the Court 20-14723

court made the same improper factual findings in ruling on the

city’s motion for judgment on the pleadings and incorporates her

prior arguments regarding the dismissal of count one as to the

individual defendants.

The district court did not err in granting the city’s motion

for judgment on the pleadings, and Sorrow’s arguments fail for the

reasons set forth above. To state a claim for municipal liability

under section 1983, Sorrow was required to show: “(1) that [her]

constitutional rights were violated; (2) that the municipality had a

custom or policy that constituted deliberate indifference to that

constitutional right; and (3) that the policy or custom caused the

violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir.

2004). “Even in the absence of an express policy or custom, a local

government body can be held liable for a single act or decision of a

municipal official with final policymaking authority in the area of

the act or decision.” Cuesta v. Sch. Bd. of Miami-Dade Cnty., Fla.,

285 F.3d 962, 968 (11th Cir. 2002) (quotation marks omitted).

Although a municipality may be liable for a constitutional

violation even when an individual defendant is not, Barnett v.

MacArthur, 956 F.3d 1291, 1301 (11th Cir. 2020), cert. denied sub

nom. Lemma v. Barnett, 141 S. Ct. 1373 (2021), that is not the case

here. The alleged municipal liability claim in count one was based

solely on Nagy’s actions as a final policymaker for the city as to

building code enforcement. Because Sorrow failed to plausibly

allege that Nagy in his individual capacity violated her Fourth

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Amendment rights, the city likewise cannot be held liable for

Nagy’s conduct.

Dismissal of count three

Sorrow also argues the district court erred in dismissing

count three—her failure to train claim against the city—because

there was an obvious need for the city to provide training with

respect to the execution of administrative search warrants and

because no discovery had occurred.

As noted above, the second element of municipal liability

under section 1983 requires “a custom or policy that constituted

deliberate indifference to [a] constitutional right.” McDowell, 392

F.3d at 1289. To establish deliberate indifference based on a failure

to train, a plaintiff must show that the municipality knew of the

need for training in a particular area and “made a deliberate choice

not to take any action.” Gold v. City of Miami, 151 F.3d 1346, 1350

(11th Cir. 1998).

“[A] pattern of similar constitutional violations by untrained

employees is ordinarily necessary to demonstrate deliberate

indifference for purposes of failure to train.” Weiland v. Palm

Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1328 (11th Cir. 2015)

(quoting Connick v. Thompson, 563 U.S. 51, 62 (2011)). However,

the Supreme Court has left open the possibility that in a narrow

range of circumstances, the need for training may be “so obvious”

as to establish deliberate indifference even without a pattern of

unconstitutional conduct. See Gold, 151 F.3d at 1352 (citing City

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of Canton, Ohio v. Harris, 489 U.S. 378, 390 (1989)); see also Bd. of

Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 409

(1997) (explaining that in some circumstances, “a violation of

federal rights may be a highly predictable consequence of a failure

to equip law enforcement officers with specific tools to handle

recurring situations”).

The district court did not err in dismissing count three of the

second amended complaint because Sorrow failed to adequately

allege the city’s need for training was obvious with respect to the

execution of administrative search warrants for residences. Count

three is based on a single incident—the execution of the

administrative search warrant on Sorrow’s home—rather than a

pattern of unconstitutional conduct. Sorrow alleged city officials

displayed a lack of adequate training because: (1) they executed the

warrant one day after it expired, and (2) when ordered to do so by

the municipal court, they refused to turn over numerous

photographs of the interior of Sorrow’s home taken during the

search. Sorrow also alleged that the city rarely executed

administrative search warrants on private residences, and that it

had searched only one other property in the two years prior to the

search of her home.

Yet there are no allegations that the city’s need for training

with respect to administrative search warrants was so obvious that

the city’s failure to provide such training amounted to deliberate

indifference. To the contrary, Sorrow’s allegation that residential

searches were a rarity undermines any claim that the need for

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training in this area was obvious. Cf. Canton, 489 U.S. at 1205 n.10

(noting the use of deadly force as an example of an area where the

need for training is obvious because “city policymakers know to a

moral certainty that their police officers will be required to arrest

fleeing felons”); Young v. City of Augusta, Ga., 59 F.3d 1160, 1172

(11th Cir. 1995) (stating that the need for specialized training may

be obvious where employees “face clear constitutional duties in

recurrent situations”). Finally, it was not error for the district court

to dispose of Sorrow’s failure to train claim at the motion to dismiss

stage. See, e.g., Weiland, 792 F.3d at 1328–29 (affirming dismissal

of failure to train claim where plaintiff failed to allege the need for

specialized training was so obvious that lack of training constituted

deliberate indifference).

CONCLUSION

For the reasons above, we affirm the district court’s

dismissal of count one against the individual defendants on

qualified immunity grounds, its order granting the city’s motion

for judgment on the pleadings as to count one, and its dismissal of

count three against the city.

AFFIRMED.