Appendix — Smith v. City of Cumming

Supreme Court, U.S.

* FILED

—

00 32 O AUG 2 9 200

ac: “UFFICE-OF THE CLERK

In The

Supreme Court of the United States

James 8. Smith and Barbara Smith,

Petitioners,

V.

The City of Cumming, a Municipal

Corporation, Earl A. Singletary and John Doe,

Respondents.

On Petition for Writ of Certiorari

To the United States Court of Appeals

For The Eleventh Circuit

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

Clifford H. Hardwick

Attorney for Petitioners

Roswell Professional Park

Suite E-1

11205 Alpharetta Highway

Roswell, Georgia 30076-1442

(770) 772-4700

an

TABLE OF CONTENTS

1. Order from the United States Court of

Appeals for the Eleventh Circuit.........1

2. Order from the United States District

Court for the Northern District of

Georgia. . — - |

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

NO. 99-8199

D.C. DOCKET NO. 97-01753-1-CV-JEC

JAMES SOLOMAN SMITH, JR., BARBARA

SMITH,

Plaintiffs-Appellants

CITY OF CUMMING, a Municipal Corporation,

EARL A. SINGLETARY, et al.,

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Georgia

(May 31, 2000)

Before BIRCH and BARKETT, Circuit Judges,

and ALARCON, Senior Circuit Judge.

BARKETT, Circuit Judge:

*Honorable Arthur L. Alarcon, Senior

U.S. Circuit Judge for the Ninth Circuit,

sitting by designation.

James and Barbara Smith filed suit

against the City of Cumming, Georgia (the

“City”), and its police chief, Earl Singletary,

pursuant to 42 U.S.C. § 1983, alleging that the

City police had harassed the Smiths, including

a claim that Mr. Smith had been prevented from

videotaping police actions in violation of Mr.

Smith’s First Amendment rights. They appeal

from summary judgment granted to the City and

Singletary and from the denial of the Smith’s

motion to amend their complaint so as to name

another City police chief, Ralph “Buck” Jones,’

as a defendant in the place of a defendant

originally identified as “John Doe.” We affirm.

As to the First Amendment claim under

Section 1983, we agree with the Smiths that

they had a First Amendment right, subject to

reasonable time, manner and place restrictions,

to photograph or wideotape police conduct. The

First Amendment protects the right to gather

information about what public officials do on

public property, and specifically, a right to

record matters of public interest. See Blackston

v. Alabama, 30 F.3d 117, 120 (11™ Cir. 1994)

(finding that plaintiffs’ interests in filming

public meetings is protected by the First

Amendment); Fordyce v. City of Seattle, 55 F.

3d 436, 439 ( Cir. 1995) (recognizing a “First

Amendment right to film matters of public

Jones and Singletary served together for

several months a co-chiefs of police. Later, Singletary

was chosen as chief, when he left Cumming, Jones

succeeded him as chief.

interest”); Iacobucci v. Boulter, No. CIV. A. 94-

10531 (D. Mass, Mar. 26, 1997) (unpublished

opinion) (finding that an independent reporter

has a protected right under the First

Amendment and state law to videotape public

meetings); see also, United States v. Hastings,

695 F. 2d 1278, 1281 (11™ Cir. 1983) (finding

that the press generally has no right to

eee = crag eee, Nek mene

Inc., 435 b. 8. 589, 609 (1978); , Lambert L. Polk

County, 723 F. Supp. 128, 133 (8.D. Iowa 1989)

lt is not just news organisations. . who have

First Amendment rights to make and display

videotapes of events . . . .”); Thompson v. City

of Clio, 765 F. Supp. 1066, 1070-71 (M.D. Ala.

1991) (finding that city council’s ban on

member’s attempt to record proceedings

regulated conduct protected by the First

Amendment); cf. Williamson v. Mills, 65 F. 3d

155 (11% Cir. 1995) (reversing district court’s

grant of qualified immunity to a law

enforcement officer who seized the film of and

arrested a participant in a demonstration for

photographing undercover officers). Thus, the

district court erred in concluding that there was

no Fist Amendment right.

Nonetheless, under Section 1983, the

Smiths must prove that the conduct complained

of deprived them of “a right, privilege or

immunity secured by the constitution or laws of

the United States.” Nail v. Community Action

Agency of Calhoun County, 805 F. 2d 1500,

1501 (11% Cir. 1986). Although the Smiths have

a right to videotape police activities, they have

not shown that the Defendants’ actions violated

that right. We find no merit in the remaining

arguments presented in this appeal. AFFIRMED.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

JAMES 8. SMITH, and :

BARBARA SMITH, 2

Plaintiffs, :

: CIVIL ACTION NO.

v. : 1:97-CV-1753-JEC

THE CITY OF :

CUMMING, a Municipal :

Corporation, EARLA. :

SINGLETARY and :

JOHN DOE, :

Defendants. 2

ORDER

This case is presently before the Court on

defendants’ Motion for Summary Judgment [35].

The Court has reveiwed the record and the

arguments of the parties and, for the reasons set

out below, concludes that defendants’ Motion

for Summary Judgment should be GRANTED as

to all federal claims, and that plaintiffs’ state

law claim of defamation should be DISMISSED

without prejudice.

BACKGROUND

Plaintiffs filed this suit pursuant to 42

U.8.C. § 1983, claiming violations of their First,

Fourth and Fourteenth Amendment rights and,

furthermore, that they are the subject of a

conspiracy designed to deprive plaintiffs of their

federally guaranteed constitutional rights of due

process and equal protection. Additionally,

plaintifis allege the state law claim of

Plaintiffs present a lengthy, convoluted

account of their interactions with the police

department in the City of Cumming, Georgia.

Plaintiffs, however, are unclear as to which

actions comprise what alleged constitutional

violation. To aid in clarifying the issues, the

Court will set forth the factual allegations

compartmentally, to reflect clearly each

incident at issue in this case. Then, in its legal

analysis, the Court will discuss each incident in

light of the numerous alleged constitutional

violations.

1. Incident involving Sarah Miles

Plaintiffs maintain that their relationship

with the police department changed after they

filed a police report against Sarah Miles. (PI.

Response [46] at 6.) The affairs leading up to

this point are rather unusual and are as follow.

The Smiths enlisted the help of Vaun

Pendley, their part-time employee, as a sperm

donor in their efforts to artificially inseminate

Mrs. Smith. Specifically, on six different

occasion, James Smith paid Pendley fifty dollars

to ejaculate into a condom. (J. Smith Dep. at

117-120; V. Pendley Dep. at 33-35.) James

Smith then attempted to inseminate his wife by

inserting Pendley’s donation into Barbara Smith

with the aid of a turkey baster. (J. Smith Dep.

at 117.)

Sarah Miles, Pendley’s girlfriend at the

time, learned of Pendley’s involvement as a

donor and became angry. (Id. at 121.) The

Smiths allege that Sarah Miles became so angry,

in fact, that she approached Jason Lingerfelt,

Pendley’s cousin, and offered to pay him one-

hundred dollars and to have sexual relations

with him if he would “shoot up” the Smiths’

house while they were in the house. (Id. at 126-

27; see also Lingerfelt Dep. at 15.) Lingerfelt

told James Smith about Sarah’s offer and then

accompanied him to the police station to file a

report. (Lingerfelt Dep. at 15-16.)

At the police station, Lingerfelt and Smith

spoke with Assistant Chief of Police Ralph

“Buck” Jones. Chief Jones prepared an

incident report and took statements from

Micheal Pugh and Vaun Pendley as well.’

Additionally, the police asked Lingerfelt to call

1

Jones is currently Chief of Police in

Cumming, Georgia.

2

Plaintiffs point out that the Cumming Police

Department claims to have lost all of the files and

evidence pertaining to the “Sarah Miles incident.” (See

Jones Dep. at 31.)

Sarah Miles, then monitored and taped a

conversation in which Miles asked Lingerfelt to

shoot up the Smiths’ house. (Lingerfelt Dep. at

16; J. Smith at 129.) As a result, the police

instructed Lingerfelt to set up a meeting with

Sarah Miles at a hotel room so that Miles could

provide Lingerfelt with a weapon, however Miles

never appeared. (Jones Dep. at 34-38.)

The assistant district attorney advised the

police that they did not have enough evidence

to make an arrest at that point and, absent

some overt action taken by Ms. Miles, they

should not arrest her. (Jones Dep. at 35-36.)

Instead, the police called her in for a

conference, advised her of her rights, explained

the complaint filed against her and further

explained the offenses with which she could be

charged. [Id. at 36.) Miles denied the

accusations but indicated that she would return

to West Virginia with her father. The police and

the assistant district attorney concluded that,

once she left town, the matter should be

dropped. Ad.) Furthermore, after a

conversation with a district attorney, the

Smiths chose not to pursue a prosecution of

Miles. (J. Smith Dep. at 142-43.)

Plaintiffs are angry because Sarah Miles

was allowed by the police to “walk away scot

free from an attempted murder.” (Pl. Response

3

Plaintiffs maintain that Sarah Miles

currently works in the Forsyth County area and does not

reside in West Virginia. (Patterson Dep. at 6.)

8

[46] at 6.) Because the police did not “perform

an investigation and/or arrest [Miles],” plaintiffs

contend that the police “refused to take steps to

protect the Plaintiffs.” (Compl. [1] at JJ 9-10.)

Moreover, plaintiffs maintain that they had no

trouble with the police until James Smith filed

charges against Sarah Miles.

2. Incident involving Lingerfelt’s

attempted drug buy

During the time in which the incident

involving Sarah Miles ensued, both Miles and

Lingerfelt told police that the Smiths kept drugs

in their shop and that they provided drugs to

others. (Jones Dep. at 37; Lingerfelt Dep. at

21.) Specifically, when she met with the police,

Sarah Miles told police that the Smiths kept

drugs at their shop and supplied Vaun Pendley

with drugs on numerous occasions. (Jones Dep.

at 37.) When Smith and Lingerfelt went to the

police station to file charges against Miles,

Jason Lingerfelt told the police that James

Smith kept marijuana at his store and that

Smith had given it to him on occasion.

(Lingerfelt Dep. at 20.)

Smith, in turn, told the police that

Lingerfelt had pills in his pocket. Thus, Chief

Jones told Lingerfelt that he would not charge

4

Also, Martha McConnell, mother of Vess,

Vaun and Vince Pendley, informed the City of Cumming

Police Department that her sons were smoking marijuana

with James Smith. (Def. Mot. for Summ. J. [35], Ex. H.

McConnell Aff. at J ¢ 8-9.)

9

him with a felony for bringing drugs onto police

property if Lingerfelt would help him “bust

James.” (Id.) Lingerfelt used the police

department’s marked money in an attempt to

buy marijuana from James Smith, but Smith

told Lingerfelt he did not have any marijuana

and Lingerfelt left the store.“ (Id. at 21.)

According to Chief Jones, the police

department made no further attempts to

investigate the Smiths. (Jones Dep. at 38-42.)

After Lingerfelt’s attempted drug buy, however,

plaintiffs allege that “there was a series of

unusual incidents whereby total strangers would

walk into the shop and ask to buy drugs.” (Pl.

Response [46] at 6 (citing J. Smith Dep. at 11).)

3. Incident involving Vess Pendley’s

arrest

In July, 1997, Vess Pendley (brother of

Vaun Pendley) was arrested by police officers

from the Forsyth County Sheriffs Department.

Vess, who according to plaintiffs has a history of

drug abuse and criminal conduct, called the

Smiths from the Forsyth County Jail and

claimed that a plain clothes officer solicited him

$

Lingerfelt states that he did not tell Smith

the police sent him. (Lingerfelt Dep. at 21.) The police

believe that Lingerfelt did inform Smith that the police

sent him because shortly after Lingerfelt entered the

repair shop “Smith came to the door and looked out and

kind of glared at us, and Lingerfelt came back out, so it

was kind of safe to assume that Lingerfelt told him why

he was in there.. . (Jones Dep. at 38.)

10

to attempt a drug buy from the Smiths.

Furthermore, Vess told the Smiths that the

officer warned him that if he did not cooperate

he would be kept in jail for a prolonged period of

time. (Pl Response [46] at 12-13 and Ex. 2,

Statement of Vess Pendley.)

Vess Pendley and plaintiffs maintain that

the jail officers refused to provide Pendley with

towels, soap, and Vaseline to treat his skin

condition, psoriasis, because he would not agree

to the scheme proposed by the plain clothes

officer. Plaintiffs’ counsel contacted the

Sheriff's Department regarding this matter and,

plaintiffs contend, “the plot to set up a drug buy

was known, the calls [from Pendley] stopped and

Pendley . . . was given showers, medication, and

treated for his medical condition.” (Id. at 13.)

Plaintiffs allege that the arrest of Vess

Pendley was part of the conspiracy fashioned by

the City of Cumming Police Department to

deprive them of their constitutional rights. The

arrest of Vess Pendley, they contend, resulted

after defendant Singletary took a position with

the Forsyth County Sheriff’s Office. (PI.

Response [46] at 12.)

4. Incident involving alleged defamation

of Smiths

The Smiths allege that since the incident

involving Lingerfelt’s attempted drug buy, “the

Cumming Police Department has, without any

7 foundation whatsoever, began [sic] to circulate

false and malicious reports among the other

business persons and citizens of Cumming that

11

Ne ssꝛ.tvſſ mm StðMʒeä l

the plaintiffs were drug dealers and/or vicious

people.” (Compl. [1] at 4 11.) For example,

James Smith maintains that the owner of a

restaurant located in the same shopping center

as the Smiths’ store indicated that Chief

Singletary previously told him that James

Smith was a drug dealer. (Pl. Response [46] at 7

(citing J. Smith Dep. at 68).)

However, each of the store owners in the

shopping center, including the restaurant

owner, have submitted affidavits stating that

they have never heard Chief Singletary, any

person employed by the City of Cumming or any

person employed they the City of Cumming

Police Department accuse the Smiths of being

drug dealers, of being involved with drugs, or of

being vicious people. (Def. Mot. for Summ J.

[35], Ex. B, Wengler Aff.; Ex. C., Smalley Aff.; Ex.

D., Adams Aff.) Additionally, the Smiths’ private

investigator, John C. Villines, testified that, as

a result of his own investigation, he found no

one with contact to the Smiths or the business

that believed the Smiths were dealing drugs.

(Villines Dep. at 47-48.) Nevertheless, plaintiffs

maintain that they have been defamed by the

City of Cumming through police officers acting

as its agents.

6

Earl A. Singletary, a defendant in this

action, was Chief of Police before Ralph “Buck” Jones -

previously Assistant Chief of Police - assumed the

position.

12

5. Incidents involving Chief Jones’s

alleged attempt to have Smiths’

business license revoked

Plaintiffs contend that because the police

were unable to pin them with criminal charges,

Chief of Police Buck Jones attempted to collect

civil complaints from the Smith«’ customers in

an effort to have the Smiths’ business license

pulled. The Smiths maintain that “Jones used

his position as chief of police to contact anyone

he felt might have a complaint against the

Plaintiffs in order to instigate more civil or

criminal complaints.” (Pl. Response [46] at 8.)

The Smiths allege that Chief Jones told people

that the police had an ongoing problem with the

Smiths. (Id.)

Specifically, plaintiffs’ private

investigator, John C. Villines, states that Chief

Jones contacted him because Jones understood

that Villines had been working on a case

involving some problems at Decuff Electronics;

Jones, however, did not realize that Villines

worked for the Smiths, but believed that Villines

worked, instead, for a customer who had a

complaint against the Smiths. (Villines Dep., at

17-18 and Ex. B.) Villines recalls that Chief

Jones was seeking adverse information about

James Smith because the police department had

experienced numerous problems with Smith.

Ultimately, Villines recounts that Chief Jones

was looking for additional documentation of

such problems so that he could attempt to have

Smiths’ business license pulled. (Id.)

Additionally, the Smiths allege that, in

13

FFF ia iiniiliial

Jones’ effort to have their business license

revoked, Jones ran a background check on them

through the National Crime Information Center

(NCIC) using access provided by Forsyth County

Sheriff's Office. (Pl. Response [46] at 9 (citing

Jones Dep. at 58-60).) Because the Smiths

believe Jones used the NCIC check for civil

purposes, although the check should only be

used in a criminal investigation, they allege that

he violated their constitutional right to privacy

Id.)

Defendants reply that Jones testified that

he did not remember what type of background

check was conducted, but that he did in fact

conduct a background check because the police

department had received numerous complaints

about the Smiths and he wantiwd to see,

essentially, what kind of character the police

were dealing with and whether James Smith u__.

wanted. (Def. Reply [49] at 11 (quoting Jones

Dep. at 59).) Defendants maintain that Jones

did not run a background check in an attempt to

revoke the Smiths’ business license. Ad.)

Moreover, defendants contend that there is no

evidence that Chief Jones obtained confidential

records or information that was not of public

record in violation of the Smiths’ right to

privacy.

6. Incident involving traffic ticket issued

to Barbara Smith

Next, the Smiths allege that Barbara Smith

was pulled over by Officer Elzey late one

evening as she was leaving work and was given

14

——— ne Naan

a ticket for having no proof of insurance,

although Officer Elzey initially pulled her over

because he observed Mrs. Smith weaving.

Barbara Smith denies that she was weaving and

“contends that it was part of the on-going

harassment and/or part of a scheme whereby

Cumming police officers would, under pretext,

pull over drivers and write bogus tickets in order

to increase revenue.” (Pl. Response [46] at 10.)

Additionally, plaintiffs claim that they are not

being paranoid, but that this has been the

subject of conversation among many persons in

the community “ever since Singletary took over

as Chief of Police.” Id.)

Officer Elzey testifies that he stopped

Barbara Smith shortly after midnight after he

observed her vehicle cross over the center line

of a straight road several times. (Id. at 19-20.)

Elzey states that it is his “rule of thumb” not to

stop someone for weaving unless he observes

the conduct at least more than once; however,

if the driver continues to cross over a center

line, he stops them to ensure that they are not

falling asleep or under the influence of some

substance. (Id. at 19.) Furthermore, Officer

Elzey recounts that he did not know who she

was until he pulled her over and, even then, he

did not know who her husband was until after he

had written the ticket and she told him that her

husband was James Smith who owned DeCuff

Electronics. (Id. at 25.)

As a result of this incident, James Smith

filed a lawsuit against Officer Elzey, claiming

the issuance of the ticket to Barbara Smith had

15

resulted in the loss of affection. (Elzey Dep. at

J Mr. Smith dismissed the lawsuit later. Ad.

(citing Dep. Smith at 91-92).) Officer Elzey,

however, stated that this conduct was

distracting and took his focus away from the

vehicle stops. (Elzey Dep. at 39.)

Several police officers came to Chief of

Police Singletary and informed him that James

Smith was following them and taking pictures.

Because these officers did not know Smith’s

motive or intent, Smith’s actions made them

nervous and they felt that their safety was

16

jeopardized. (Singletary Dep. at 21-23.) Thus,

the officers asked Chief Singletary to take some

sort of action to stop Smith from continuing in

this manner.

Singletary believed that Smith was

interfering with the law enforcement officer’s

ability to perform their job correctly. (Id. at 21.)

Accordingly, Singletary applied for a warrant for

James Smith’s arrest for the obstruction of law

enforcement officers under Singletary’s charge.

(id. at 20, 25.) James Smith was not arrested,

but was asked to appear at a show cause hearing

before a magistrate judge. The magistrate judge

told Smith that if he continued to follow the

police and videotape them while on duty, he

would be arrested. (J. Smith Dep. at 38-39; B.

Smith Dep. at 248.) The Smiths conclude that

Singletary’s actions deprived them of their First

and Fourth Amendment rights.

8. Incident involving landlord’s request

that plaintiff remove sign from

storefront .

Plaintiffs allege that defendants caused

their landlord to believe that they are

undesirable tenants. (Comp. [1] at 431.) Also,

they allege that “the city of Cumming, through

its agents, have (sic) continuously harassed the

Plaintiffs through efforts to force the Plaintiffs

to remove signs from the building and other

actions that were designed to close the

Plaintiff's business and force them to move

elsewhere.” (Id. at J 32.) Plaintiffs maintain

that their landlord told them that the City of

17

Cumming wanted the sign removed. (J. Smith

Dep. at 65.)

Plaintiffs have not presented any evidence

that their landlord has asked them to vacate the

premises. Although the landlord asked the

Smiths to remove a sign connected to the

storefront, the landlord attests that no one

affiliated with the City of Cumming asked him

to require the Smiths to remove the sign.

(Ahizadah Aff. at J 5.) Moreover, even James

Smith testified that no one affiliated with the

City of Cumming asked him to take down the

sign, but that only his landlord made such a

request. (J. Smith Aff. at 59-60.) The sign has

not been removed, and the Smiths have not

been asked lately to remove it. (Id. at 59.)

Additionally, it is important to note that

plaintiffs’ response does not even address the

sign issue. (See Pl. Response [46].)

9. Failure to provide police support

Plaintiffs claim that, since 1995 the police

department of the City of Cumming has refused

to provide requested police support to DeCuff

Electronics to deal with customer-related

problems. (Pl. Compl. [1] at J 12.) Specifically,

plaintiffs allege that members of the police

department refused to enforce the law regarding

trespassers or persons threatening plaintiffs.

(Id. at J 13.) Also, plaintiffs complain that a

police officer refused to draft a written incident

report when plaintiffs complained about a third

party threatening them with physical violence

at plaintiffs’ place of business. (Id. at J 14.)

18

B. P for

judgment as to all claims

Both defendants have moved for summary

judgment on all claims asserted against them.

Defendants argue that there is no evidence of

any constitutional violation or of any

defamation. Additionally, Officer Singletary

argues that even if there is such evidence, he is

protected by the doctrine of qualified immunity.

After setting forth the standard to be applied in

deciding a summary judgment motion, the Court

will address, in turn, claims asserted against the

City of Cumming and against Officer Singletary

in his official capacity, then claims against

Officer Singletary in his individual capacity.

DISCUSSION

I. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when

the “pleadings, depositions, answers to

interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no

genuine issue as to any material fact and that

the moving party is entitled to a judgment as a

matter of law.” FED. R. CIV. P. 56(c). A fact’s

materiality is determined by the controlling

substantive law. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). An issue is

genuine when the evidence is such that a

reasonable jury could return a verdict for the

nonmovant. Id. at 249-50.

Summary judgment is not properly viewed

as a device that the trial court may, in its

discretion, implement in lieu of a trial on the

19

merits. Instead, Rule 56 of the Federal Rules of

Civil Procedure mandates the entry of summary

judgment against a party who fails to make a

showing sufficient to establish the existence of

every clement essential to that party’s case on

which that party will bear the burden of proof at

trial. Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986). In such a situation, there can be no

genuine issue as to any material fact, as a

complete failure of proof concerning an

essential element of the non-moving party’s

case necessarily renders all other facts

immaterial. Id. at 322-23.

The movant bears the initial responsibility

of asserting the basis for his motion. Id. at 323.

However, the movant is not required to negate

his opponent’s claim. The movant may

discharge his burden by merely “‘showing’ - that

is, pointing out to the district court - that there

is an absence of evidence to support the non-

moving party’s case.” Id. at 325. After the

movant has carried his burden, the non-moving

party is then required to “go beyond the

pleading” and present competent evidence

designating “specific facts showing that there is

a genuine issue for trial.” Id. at 324. While the

court is to view all evidence and factual

inferences in a light most favorable to the non-

moving party, Samples v. City of Atlanta, 846

F. ad 1328, 1330 (11 Cir. 1988), “the mere

existence of some alleged factual dispute

between the parties will not defeat an otherwise

properly supported motion for summary

judgment; the requirement is that there be no

20

genuine issue of material fact.” Anderson, 477

U.S. at 247-48 (1986).

II. PLAINTIFFS’ § 1983 CLAIMS

In order to state a claim under § 1983, “a

plaintiff must allege the violation of a right

secured by the Constitution and laws of the

United States, and must show that the alleged

deprivation was committed by a person acting

under color of state law.” West v. Atkins, 487

U.S. 42, 48, 108 S. Ct 2250, 101 L.Ed.2d 40

(1988) (citations omitted). As stated above,

plaintiffs’ complaint alleges violations under the

First, Fourth, and Fourteenth Amendments, and

the parties agree that defendants were acting

under color of state law at the time of the

events in question.

Before the Court walks through its

discussion of whether any genuine issue of

material fact exists with regard to the

constitutional violations alleged by plaintiffs’,

the Court observes the following. Plaintiffs

make sweeping allegations that their First,

Fourth and Fourteenth Amendment rights have

been violated, but do little to indicate which

factual allegations are tied to what legal theory.

The Court — and defendants, for that matter

has been left to sift through plaintiffs’ barrage of

encounters with the City of Cumming and its

police department in order to attempt to

discern what incident or incidents could

constitute, for example, a breach of plaintiffs’

equal protection or due process rights. Even

plaintiffs’ brief in response to defendants’

21

summary judgment motion is filled with

cursory, unhelpful statements such as this: “Not

only has their reputation suffered, but they

have been deprived of the right to enjoy their

porperty (sic)... , their relations with their

landlord has (sic) been damaged. . . . Thus, they

have meet (sic) the burden set by [a cited case]

by showing the defamation was accomplished by

an infringement of a Fourth Amendment Right.”

(Pl. Response [46] at 22-23.) Plaintiffs’ brief

does little to show how the facts alleged actually

compose the constitutional violations asserted.

Plaintiffs’ complaint is a classic example

of “shotgun pleading.” See GJR Investments,

Inc. v. County of Escambia, Florida, 132 F.3d

1359, 1368 (11 Cir. 1998); Oladeinde v. City of

Birmingham, 963 F. ad 1481, 1483-84 (11 Cir.

1992); Pelletier v. Zweifel, 921 F. ad 1465, 1518

(11 Cir. 1991). That is, it presents countless

allegations, regardless of their relevance, and

merges them into a few generalized claims for

relief based on a fortuitous smattering of

asserted constitutional rights. One of the

purposes of summary judgment is “to unmask

frivolous claims and put a swift end to meritless

litigation,” a purpose particularly relevant here

where plaintiffs employ a haphazard “shotgun”

approach to litigation. Fullman v. Graddick,

739 F.2d 553, 557 (1984). Plaintiffs are

represented by counsel, thus the Court should

not have to view their pleadings and legal

arguments with the indulgence afforded to pro

se litigants. Nevertheless, the Court has been

left to the cumbersome task of sorting through

22

a myriad of factual allegations in an attempt to

determine their relevance to plaintiffs’ legal

claims. Thus, viewing all evidence and factual

inferences n the light most favorable to the non-

moving party, the Court has, to the best of its

ability, applied the facts alleged to the

constitutional rights cited by plaintiffs.

A. Municipal Liability

Plaintiffs bring claims under section 1983

against the City of Cumming and against Earl A.

Singletary in his official capacity. A claim filed

against an individual in his official capacity is

synonymous with a claim against the local

government entity he or she represents. Owens

v. Fulton County, 877 F.2d 947, 951 n.5 (11™

Cir. 1989) (citing Kentucky v. Graham, 473 U.S.

159, 166, 105 S. ct. 3099, 87 L.Ed.2d 114

(1985)). Thus, the claim against defendant

Singletary in his official capacity will be

analyzed in conjunction with the claim against

the City of Cumming.

In response to plaintiffs’ claim, defend: ta

contend that there is no evidence that actions

taken by police officers within the City of

Cumming Police Department manifest a policy,

custom or practice of violating citizens’ First,

Fourth and Fourteenth Amendment rights under

42 U.S.C. § 1983. Because municipal liability

may not be imposed by means of respondeat

superior alone, a local government is only liable

for the actions of its employees under section

1983 “when execution of a government’s policy

or custom, whether made by its lawmakers or by

23

those whose edicts or acts may fairly be said to

represent official policy, inflicts the injury.”

Monell v. Dep’t of Social Serus., 436 U.S. 658,

694, 98 S. Ct. 2018 56 L.Ed.2d 611 (1978) A

policy is defined generally as “a course of

action consciously chosen from among various

alternatives. City of Oklahoma City v.

Tuttle, 471 U.S. 808, 105 S. Ct. 2427, 2436, 85

L.Ed.2d 791 (1985). A custom, on the other

hand, is an informal practice that takes on the

force of law as a result of its widespread use by

state officials. Pembaur v. City of Cincinnati,

475 U.S. 469, 106 8. Ct. 1292, 89 L.Ed.2d 452

(1986); Monell, 436 U.S. at 691, 98 S. Ct. 2018.

Moreover, “random acts or isolated incidents are

insufficient to establish a custom or policy.”

Depew v. City of St. Mary’s, 787 F.2d 1496,

1499 (11 Cir. 1986).

In order to proceed with a claim brought

under section 1983, a plaintiff must not only

establish the existence of a policy or custom

violative of constitutional rights, but municipal

liability will not attach unless he also

demonstrates that the city policy or custom was

the “moving force” or cause behind the alleged

constitutional violation. Monell, 436 U.S. at

694, 98 S. Ct. 2018. Additionally, the Eleventh

Circuit requires that a plaintiff demonstrate a

measure of actual fault in the city’s adoption of

a custom or policy in order to establish a claim

for municipal liability under section 1983. See

Owens v. City of Atlanta, 780 F.2d. 1564, 1567

(11 Cir. 1986). To omit this requirement

would, according to the court, allow recovery on

24

the basis of vicarious liability. Id.

Plaintiffs have pointed to no formal policy

of the City of Cumming which infringes

constitutional rights. Accordingly, under the

municipal liability theory they have chosen to

pursue, plaintiff has the burden, for summary

jadgment purposes, of pointing to competent

evidence of sufficient prior incidents of First,

Fourth, and Fourteenth Amendment violations

by Officer Singletary or other City of Cumming

police officers to create a genuine question as to

whether the city had an informal policy or

custom that violated plaintiffs’ rights. Whether

plaintiffs have met this burden with regard to

each right allegedly violated by defendants is

addressed below.

1. First Amendment

Plaintiffs contend that Chief Singletary’s

request for a show cause hearing before the

magistrate judge to determine whether James

Smith could continue following police officers

and videotaping their activities was a violation

of their First Amendment right to the free

exercise of speech, as well as a violation of their

right to due process of law under the Fourteenth

Amendment. The alleged due process violation

will be addressed infra, however, whether

plaintiff James Smith holds a First Amendment

right to videotape police officers in the

performance of traffic stops is addressed here.

Certainly, “the First Amendment protects

a significant amount of verbal criticism and

challenge directed at police officers .... The

25

freedom of individuals verbally to oppose or

challenge police action without thereby risking

arrest is one of the principal characteristics by

which we distinguish a free nation from a police

state.” Houston u. Hill, 482 U. 8. 451, 461-63,

107 8. Ct. 2502, 2509-11, 96 L. Ed. ad 398 (1986).

Smith claims that he undertook to videotape

police activity to investigate and prove that

police were stopping vehicles improperly on the

pretext of “weaving.” Nowhere does Smith

Although certain symbolic acts constitute

speech for First Amendment purposes, Smith’s

act of videotaping police officers is not within

this category of speech. See, e.g., Schad v.

Borough of Mount Ephriam, 452 U.S. 61, 66,

101 8. Ct. 2176, 2181, 68 L.Ed.2d 671 (1981)

(nude dancing is constitutionally protected

expression); Tinker v. Des Moines School

District, 393 U.S. 503, 505-06, 89 8. Ct. 733,

736, 21 L.Ed.2d 731 (1969) (wearing black

armbands to school is equivalent of speech);

Stewart v. Baldwin County Board of Educ., 908

F. 2d 1499, 1505 (11™ Cir. 1990) (act of leaving

meeting was conduct “sufficiently imbued with

elements of communication” to implicate First

Amendment protections) (citation omitted). In

Spence vu. Washington, 418 U.S. 405, 94 8. Ct.

2727, 41 L.Ed.2d 842 (1974), the Supreme Court

established the test for determining whether a

symbolic act constitutes speech protected by

the First Amendment: there must be (1) an

26

intent on the part of the actor to convey a

particularized message, and (2) circumstances

surrounding the act such that the likelihood is

great that the message will be understood by

those who view it.” Stewart, 908 F. 2d at 1504

(citing Spence, 418 U.S. at 410-11, 94 S. Ct. at

2730)).

Smith has not alleged any intent to

convey a message to the City of Cumming Police

Department by videotaping police officers, only

an intent to “investigate.” Moreover, the record

is clear that the police who encountered Smith

in his “investigation” did not understand his

action as a protest. In actuality, the police

officers reported to Chief Singletary that they

could not discern Smith’s motive or intent and

that Smith’s actions made them nervous.

(Singletary Dep. at 21-23). Accordingly, the

Court finds that Smith’s videotaping action does

not constitute protected activity sufficient to

evoke the protection of the First Amendment.’

7

One can distinguish lacobucci v. Boulter,

1997 WL 258494 (D. Mass. March 26, 1997), in which the

court did not establish, but alluded to the plaintiff's First

Amendment right to videotape or film a public meeting of

the Town of Pembroke Historic District Commission. In

Iacobucci, the plaintiff was a member of the press, a

statute expressly required that all governmental meetings

be open to the public, and the plaintiff was not disturbing

the public meeting in any way. lacobucci, 1997 WL

258494, at ** 2-7. Similarly, one can distinguish Fordyce

v. City of Seattle, 55 F.3d 436 (9 Cir. 1995), in which

the court discussed a plaintiff's First Amendment right to

record public events and to “gather news.” Fordyce, 55

27

Additionally, the Court notes that the

Georgia Code prohibits the knowing or willful

obstruction or hindrance of any law

enforcement officer in the discharge of his

official duties. O. C. G. A. § 16-10-24 (1997).“ The

Georgia legislature intended this section to

“include forms of speech which may reasonably

be interpreted as a ‘threat of violence’ and

which amount to an obstruction or hindrance.”

Wells v. State, 154 Ga. App. 246, 248, 268

S. E. ad 74 (1980). Because Smith did not

officers’ reaction to a protest - for use on local television,

and was arrested under a controversial Washington State

privacy statute for filming bystanders against their

wishes. Id.

Also, distinguish Lambert v. Polk County, lowa,

723 F. Supp. 128 (S.D. Iowa 1989), in which the court, in

impassioned dicta, states that all citizens have “First

Amendment rights to make and display videotapes of

events ....” Lambert, 723 F. Supp. at 133. Ultimately,

however, Lambert did not address the right to make a

videotape, but the right to “have and display and

disseminate” a videotape. Id. At 134.

Georgia Code Section 16-10-24 states, in

relevant part:

law enforcement officer in the lawful discharge of

his official duties is guilty of a misdemeanor.

O. C. G. A § 16-10-24(a) (1997).

28

identify himself or his purpose when

videotaping, the police officers were made quite

uncomfortable by his actions and were unable to

“concentrate on ſthe] dangerous situation”

presented by traffic stops. (Singletary Dep. at

27-28). Thus, even if Smith’s videotaping

activity was sufficient to constitute “speech,”

Chief Singletary only requested the hearing

before the magistrate judge because he believed

the police officers for whom he was responsible

were obstructed from the performance of their

duties in accordance with section 16-10-24 -a

statute that contemplates the limitation of

some speech in order to effectuate its purpose.

Wells, 154 Ga. App. at 248; see also Moccia v.

State, 174 Ga. App. 764, 331 S.E.2d 99 (1985),

and Dumas v. State, 159 Ga. App. 517, 284 8.E.

2d 33 (1981).

Accordingly, plaintiff's First Amendment

rights have not been violated by defendants’

actions and defendants’ motion for summary

judgment with regard to plaintiff's claim under

section 1983 for the violation of plaintiffs’ First

Amendment rights is granted.

9

Plaintiffs maintain that the magistrate

judge’s order to stop videotaping the police officers was

legally unsupportable under section 16-10-24 of the

Georgia Code. Plaintiffs have not brought an action

against the magistrate judge, however, and have not

sought review of that decision. Thus the validity of the

magistrate judge’s order is not properly before this Court

and the Court’s findings herein should not be interpreted

as an affirmance of such order.

29

violated their Fourth Amendment rights because

plaintiffs were the subjects of “intimidation and

malicious prosecution.” (P1. Response [46] at

20.) The Eleventh Circuit has recognized

malicious prosecution as a constitutional tort

cognizable under section 1983 and the Fourth

Amendment. Uboh v. Reno, 141 F.3d 1000,

1002 (11 Cir. 1998); Whiting v. Traylor, 85

F.3d 581, 584 (11 Cir. 1996). In Whiting, the

Eleventh Circuit stated:

Labeling. . . a section 1983 claim as

one for a “malicious prosecution”

can be a shorthand way of describing

a kind of legitimate section 1983

claim: the kind of claim where the

plaintiff, as a part of the

commencement of ai criminal

proceeding, has been unlawfully and

forcibly restrained in violation of

the Fourth Amendment and injuries,

due to that seizure, follow as the

prosecution goes ahead.

Whiting, 85 F.3d at 584. A plaintiff may pursue

a claim of malicious prosecution via the Fourth

Amendment where the claim is based “on some

actual unlawful, forcible, restraint of his

person.” Id.

Plaintiff James Smith states that his claim

of malicious prosecution arose because he was

subjected to a warrant hearing before a

magistrate judge as a result of Chief Singletary’s

30

application for a warrant. According to

plaintiffs, the magistrate judge told Smith that

if he continued videotaping the police officers

he would be held in the city jail without bond.

(P1. Response [46] at 20.) James Smith admits,

however, that no police officer threatened him

with jail if he did not stop filming police

activity. (J. Smith Dep. at 231-32.)

Furthermore, Smith was never arrested or

placed in police custody as a result of his

videotaping endeavor.

In summary, James Smith was not

“seized” - that is, there was no actual, forcible

restraint of his person - thus his claim of

malicious prosecution must fail. See Dolin v.

West, 22 F. Supp.2d 1343, 1351 (M.D. Fla 1998)

(Malicious prosecution claim asserted under

section 1983 and Fourth Amendment failed

because plaintiff did not assert that she was

forcibly restrained, merely that certain parties

recommended her arrest). The mere submission

of an application for an arrest warrant is not a

“seizure.” Although the submission of an

application may constitute the institution of a

prosecution, the plaintiff must be arrested or

otherwise seized after the warrant is issued to

state a claim for malicious prosecution. In

Whiting, the court specifically contemplated

that an arrest would be made “after the filing of

an information” and that the arrest not the

mere institution of a prosecution - would form

the basis of a Fourth Amendment section 1983

claim. Whiting, 85 F.3d at 585-86 & n.7.

Furthermore, in recognizing malicious

31

prosecution as a cause of action under section

1983, the Eleventh Circuit relied on Kelly v.

Curtis, 21 F.3d 1544 (11™ Cir. 1994), a case in

which the plaintiff proved a Fourth Amendment

violation by showing “an arrest in fact, followed

by an unlawful warrant application and physical

restraint.” Whiting, 85 F.3d at 584 n.4. (citing

Kelly, 21 F.3d at 1555). James Smith was

neither arrested nor physically restrained as a

result of the warrant hearing before the

magistrate judge. Instead, he was told that any

subsequent videotaping activity would be

performance of their duties and, in the future,

he would be arrested for such endeavors.

Moreover, Smith has provided no support for his

assertion that the warrant application or the

magistrate judge’s resulting order was unlawful.

Adhering to the Eleventh Circuit’s admonition

that, “[wjhere the right said to be violated is the

Fourth Amendment, the plaintiff must establish

a concrete violation of that right,” Whiting, 85

F.3d at 586 (emphasis added), the Court finds

that summary judgment is appropriate with

regard to plaintiffs’ claim of malicious

prosecution because plaintiff was never

unlawfully “seized” in violation of the Fourth

Amendment.

b. Privacy

Additionally, plaintiffs’ claim that

defendants violated their Fourth Amendment

right to privacy “by violating federal and state

regulations to obtain an NCIC report for the

exspress (sic) purpose of using any information

32

therein to revoke the Smiths’ business license

... PI. Response [46] at 25.) Plaintiffs

maintain that Chief Jones even acknowledged

that “the NCIC report was imporper [sic].” (Id.

at 25-26.) Chief Jones avows that he only

conducted a background check on James Smith

because the police department had received

complaints about Smith. At least one complaint

alleged that James Smith assaulted a

customer; therefore Chief Jones wanted find

out whether Smith had a criminal record.

Whether the background check was conducted

via the NCIC system, Jones could not recall.

(Jones Dep. at 59.) Plaintiffs respond that no

more than four complaints were filed against

them with regard to what they consider to be

10

Two customers, Theresa and Renee Gray,

filed a complaint with the police department and swore

out a warrant against James Smith for assault and battery

after an incident at DeCuff Electronics. (P1. Brief in

Supp. of Mot. for Summ. J. [35], Ex. G, R. Gray Aff. at J

7.) The jury found in favor of James Smith and Smith, in

turn, filed a civil action against the Grays. (Id, R. Gray

Aff. at | 10.) The police were called during a dispute

between James Smith and Pat Chandler, another

customer. She stated that she “had never been treated in

such a rude and violent manner by a businessman before”

and that, “based on his irrational behavior, [she] did not

know what he was capable of doing to [her].” (Id. Ex. E,

Chandler Aff. at J 6, 11.) Another customer, Mary

Jordan, swore out a warrant against Smith for theft by

deception, but later dropped the charges and then

pursued and won a civil suit. (J. Smith Dep. at 38.) Other

incidents occurred in which the Smiths called the police

with regard to customer disputes, as well.

33

civil issues, whereas the NCIC report is to be

used only in criminal investigations.

The Court finds that there was no

intrusion into plaintiffs’ Fourth Amendment

privacy interests. “The purpose of the Fourth

Amendment is not to eliminate all contact

v. Mendenhall, 446 U.S. 544, 553-54, 100 8.Ct.

1870, 1877, 64 L.Ed.2d 497 (1980). The Court

acknowledges that, “[t]o preserve the integrity

and privacy of the information contained in the

NCIC data base, the Federal Bureau of

Investigation allows access only for criminal

justice purposes, justice employment, or

security clearances.” United States ov.

violent or abusive behavior toward customers, a

police officer has a defensible reason to look

into the situation and act in a prophylactic

manner - or, in the words of Chief Jones, “to see

what in the heck you’re working with.” (Jones

Dep. at 59.)

Moreover, the Supreme Court has said that

34

17

“‘no interest legitimately protected by the

Fourth Amendment’ is implicated by

governmental investigative activities unless

there is an intrusion into a zone of privacy, into

‘the security a man relies upon when he places

himself or his property within a constitutionally

protected area. United States v. Miller, 425

U.S. 438, 440, 96 S. Ct. 1619, 1622, 48 L. Ed. ad

71 (1976) (quoting Hoffa v. United States, 385

U.S. 293, 301-302, 87 S.Ct. 408, 413, 17

L. Ed. ad 374, 382 (1966)). In Miller, the

Supreme Court held that subpoenaed bank

records did not fall within a protected zone of

privacy because they were not “private papers”

and the claimant could sssert neither ownership

nor possession over the records held by a third

party. Id. Additionally, the Supreme Court

noted that the claimant had no reasonable or

legitimate “expectation of privacy” concerning

the contents of the records of transactions

maintained by the bank.“ Id. at 442-43, 87

S. Ct. at 1623-24.

Similarly, plaintiff James Smith had no

reasonable expectation of privacy over his

criminal record or lack thereof - whether

In response to Miller, Congress enacted

the Right to Financial Privacy Act (“RFPA”}, 12 U.S.C.

88 3401 et seg., “which provides individuals with

some privacy rights in financial records that are in the

hands of third parties.” Lopez v. First Union Nat’l

Bank of Florida, 129 F.3d 1186, 1190 (11% Cir. 1997}.

The underlying rationale of Miller, however, remains

intact and relevant to the present case.

35

maintained in the NCIC by the FBI or in some

issue of fact regarding their allegations that

Chief Jones injected himself into civil matters

between the Smiths and their customers and

interfered with their right to run their business

without interference; indeed, at best, these are

shaky state law claims based or the tort of

invasion of privacy, not federal constitutional

claims within the ambit of the Fourth

Amendment. See, e.g., Cabaniss v. Hopsley,

114 Ga. App. 367, 151 S. E. ad 496 (1996)

(recognizing four categories of the tort “invasion

of privacy”). Accordingly, the Court finds

summary judgment appropriate with regard to

plaintiffs’ claim that their Fourth Amendment

rights have been violated.

3. Due Process

It is uncertain which factual

allegations in plaintiffs’ complaint are intended

to constitute « violation of due process.

Moreover, plaintiffs do not specify whether they

intend for their due process claims to implicate

substantive or procedural due process.

Substantive due process rights are those

rights held to be so fundamental that a state

may not take them away. Taylor v. Ledbetter,

818 F.2d 791, 794 (1987) (fundamental rights

36

include those listed in the Bill of Rights or those

incorporated through the Fourteenth

Amendment such as abortion, marriage, safety

and physical movement) (citations omitted).

Plaintiffs have not articulated the deprivation of

a fundamental constitutional right, thus

plaintiffs cannot have meant for substantive due

process to apply.

An individual’s right to procedural due

process is violated when the government

interferes with his life, liberty or property

without adequate procedural safeguards. Board

of Regents of State Colleges v. Roth, 408 U.S.

564, 569-70, 92 S.Ct. 2701, 33 L.Ed.2d 548

(1972). To state a claim for a violation of

procedural due process, a party must

demonstrate that there has been (1) a

constitutional deprivation and (2) “that the

procedures employed by the state to effect this

deprivation were constitutionally inadequate.”

Novak v. Cobb County-Kennestone Hosp. Auth.,

849 F. Supp. 1559, 1567 (N.D. Ga. 1994) (citing

Smith v. Organization of Foster Families for

Equality & Reform, 431 U.S. 816, 847, 97 S.Ct.

2094, 53 L.Ed.2d 14 (1977. In summary, “[djue

process essentially requires that the procedures

be fair,” although “[t]he process that is due

varies according to the nature of the right and

to the type of proceedings.” S.E.C. v. Elliott,

953 F.2d 1560, 1566 (1992) (citations omitted).

First, plaintiffs have alleged no

constitutionaily protected property or liberty

interest. See Cypress Ins. Co. v. Clark, 144 F.3d

1435, 1436 (11™ Cir. 1998). Plaintiffs allege

—

37

defamation as a state law claim and/or as a

claim under section 1983. Specifically,

plaintiffs allege that the Cumming Police

Department circulated rumors to other citizens

and business owners that plaintiffs were drug

dealers and “vicious people,” and that Chief

Jones tried to solicit customers to file civil

complaints against the Smiths in an attempt to

have their business license revoked.

In defamation cases brought under section

1983, the Supreme Court has determined that

“allegations of injury to reputation alone do not

support a section 1983 claim for violation of

due process, and therefore must be

accompanied by a constitutionally recognized

injury.” Id. (citing Paul v. Davis, 424 U.S. 693,

712, 96 8.Ct. 1155, 47 L.Ed.2d 405 (1976).

Moreover, “damages to a plaintiff's business

reputation are only recoverable in a section

1983 action if those damages were incurred as

a result of government action significantly

- altering the plaintiff's constitutionally

recognized legal right.” Id. (discussing Siegert

v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114

L. Ed. ad 277 (1991)). In this case, plaintiffs have

not experienced the significant alteration of

some legal right or status. Specifically,

plaintiffs’ business_license has not been

revoked, nor has plaintiffs’ landlord has not

terminated their lease. Accordingly, because

plaintiffs have suffered no constitutionally

recognized injury, plaintiffs have failed to allege

facts sufficient to state a genuine issue for trial

with regard to their section 1983 claim of

38

defamation.

Plaintiffs also claim that the process by

which Chief Singletary swore out the application

for a warrant in response to James Smith’s

videotaping police traffic stops was inadequate

to provide due process of law. Again, plaintiffs

do not clearly allege the deprivation of a

constitutionally protected property or liberty

interest. James Smith claims that Singletary

knew the charge of obstructing law enforcement

officers was “false” and that Smith “had

committed no wrongful act that would justify

his arrest.” (P1. Response [46] at 19.)

Assuming for the sake of argument that

the warrant hearing and the magistrate judge’s

ensuing order that James Smith stop

videotaping police officers deprived Smith of a

constitutionally protected liberty, the procedure

employed in this matter was adequate. James

Smith was given adequate notice of the warrant

hearing. (Id., Ex. 3, Notice of Warrant Hearing.)

Moreover, the Court has determined previously

that James Smith’s actions constituted

sufficient grounds for Chief Singletary to form a

reasonable belief that Smith was in violation of

12

The Court notes that, with regard to

plaintiffs’ claim that their due process rights have been

violated by the warrant hearing before the magistrate

judge, only James Smith actually has standing to bring

the claim. Barbara Smith did not participate in

videotaping the police officers at traffic stops, and was

not a party to the warrant hearing; therefore she has no

standing as to this issue.

39

Georgia Code Section 16-10-24. Thus, a request

for a warrant hearing was a suitable method by

which to address Smith’s conduct. The mere

completion of an application for a warrant or

the issuance of a Notice of Warrant Hearing

cannot comprise a claim for the violation of

procedural due process. In fact, these exhibit

steps taken by the Chief of Police and the City

of Cumming to ensure that Smith’s procedural

due process rights were not violated. See

Auburn Medical Center, Inc. v. Peters, 953 F.

Supp. 1518, 1521 (M.D. Ala. 1996) (issuance of

show cause letter was an attempt to insure that

the plaintiff of meaningful opportunity to be

heard and was not a violation of his procedural

due process rights).

Additionally, plaintiffs complain that

“Forsyth County is one of the few counties

remaining in Georgia [where] the Magistrates are

not required to be attorneys or have legal

training.” (P1. Response [46] at 19.) Plaintiffs

have offered no evidence that the Magistrate

Judge before whom James Smith appeared was

without legal training. Thus, the Court finds it

inappropriate in this instance to address the

adequacy of the magistrate system maintained

in Forsyth County.

Plaintiffs also complain that Chief Jones

and Chief Singletary “have admitted to having

informal discussions with the magistrate about

cases that.. . would be coming before him.”

Id.) This alleged ex parte conduct, plaintiffs

maintain, violates the due process clause. (Id.

at 20.) Procedural due process requires “an

40

opportunity to be heard ‘at a meaningful time in

a meaningful manner.“ Cherry v. Heckler, 760

F. ad 1186, 1190 (11% Cir. 1985) (quoting

Matthews v. Elderidge, 424 U.S. 319, 333, 96

S.Ct. 893, 902, 47 L.Ed.2d 32 (1976)).

Certainly, any ex parte communications

between the judiciary and the party who

initiated the warrant hearing are subject to

censure. Indeed, ex parte communications are

prohibitive of procedural fairness. Plaintiffs,

however, refer the Court to no admissions in the

record by Chief Jones or Chief Singletary of ex

parte conduct with regard to James Smith’s

warrant hearing, and the Court has found none.

Without such evidence in the record, there is no 8

genuine issue presented for trial with regard to

a claim that plaintiffs’ procedural due process

rights have been violated.

Accordingly, the Court finds summary

judgment appropriate with regard to plaintiffs’

claim that their due process rights have been

violated.

4. Equal Protection

Plaintiffs also claim that their

constitutional right to equal protection has been |

violated. Plaintiffs allege neither an invidious or ;

suspect classification nor a deprivation of a |

fundamental right, therefore the equal |

protection clause requires only that the

disparate treatment alleged bear some rational :

relationship to legitimate government ends. |

City of Cleburne, Texas v. Cleburne Living i

Center, 473 U.S. 432, 446, 105 S.Ct. 3249, 87 )

4

—

L.Ed.2d 313 (1985). That is, equal rights

protection is violated when similarly situated

persons are treated differently and that

treatment is not rationally related to a

legitimate state interest. Id.

Certainly, “[slimilarly situated neighbors

have an equal right to share in the benefits of

local government.” Nordlinger v. Hahn, 505

U.S. 1, 41, 112 8.Ct. 2326, 120 L.Ed.2d 1 (1992)

(Stevens, J., dissenting). To provide one citizen

with better police protection than another

would be objectionable and discriminatory. Id.

The Smiths allege that neighboring business

owners receive better police protection than

that protection afforded the Smiths and their

business, DeCuff Electronics, particularly with

respect to police assistance in ad

customer disputes. Nonetheless, the Smiths

have failed to refer this Court to a single

instance in which a similarly situated business

was afforded better treatment. Indeed, bare

allegations that “other” businesses are treated

differently cannot comprise an equal protection

claim. See G. R Investments, Inc. v. County of

Escambia, Florida, 132 F.3d 1359, 1367 111

Cir. 1998) (granting motion to dismiss equal

protection claim wherc complaint merely

alleged that “nameless, faceless ‘other’” permit

applicants received better treatment).

Moreover, plaintiffs’ complain that the

police have refused to provide support to deal

with customers who were causing problems.

PI. Compl. [1] at J 12.) Barbara Smith admits,

however, that whenever police officers were

42

asked to remove a person from their business

premises, the police officers always did so. (B.

Smith Dep. at 124.) It seems that Barbara

Smith’s only complaint is that a police officer

allowed a customer to “tell his side” before the

officer asked him to leave. Id.] Additionally,

James Smith’s deposition is replete with

examples of situations in which he requested

police support and, in fact, received that

support. (See, e.g., J. Smith Dep. at 178-79,

193; see also B. Smith Dep. at 93, 124.)

The Smiths’ sweeping allegations that the

City of Cumming Police Department

discriminated against them by failing to provide

police protection or treated them differently in

any other manner fail to raise any concrete

constitutional issue of equal protection. In

Snowden v. Hughes, 321 U.S. 1, 64 8. Ct. 397, 88

L.Ed 497 (1944), the Supreme Court addressed

a similar scenario:

- The lack of any allegations in the

complaint . . tending to show a

purposeful discrimination. . . is not

supplied by the opprobrious epithets

“willful” and malicious . ., or by

characterizing [the defendant’s

actions] as an unequal, unjust, and

oppressive administration of the

laws .... These epithets disclose

nothing as to the purpose or

consequence of [the defendant’s

actions] .... Such allegations are

insufficient under our decisions to

raise any issue of equal protection of

43

the laws ....

GJR Investments, Inc., 132 F.3d at 1368

(quoting Snowden, 321 U.S. at 10, 64 s. Ct. 397).

- Similarly, the brief plaintiffs submitted to this

Court in response to defendant’s summary

judgment motion fails to even address the

alleged violation of plaintiffs’ right to equal

protection, and states only that they have been

subjected to “malicious persecution” by the

police department in violation of their

constitutional rights. (See generally, P1.

Response [46].)

Accordingly, the Court finds summary

judgment appropriate with regard to plaintiffs’

claim that their right to equal protection has

been violated.

5. Conspiracy to Violate Plaintiff's

Constitutional Rights

Plaintiffs also allege that defendants

conspired to deprive them of their

constitutional rights. To establish a prima facie

case of conspiracy to violate rights protected by

section 1983, a plaintiff must “show that the

plaintiff his or her ts.” Bendiburg v.

Dempsey, 909 F. 2d 463, 468 (11 Cir. 1990); see

also Strength v. Hubert, 854 F. ad 421, 425 (11

Cir. 1988). Moreover, “[t]he conspiratorial acts

must impinge upon the federal right; the

plaintiff must prove an actionable wrong to

support the conspiracy.” Bendiburg, 909 F.2d

at 468.

Plaintiffs have failed to introduce any

E 44

evidence that defendants reached an

“understanding” and thereby conspired to

deprive them of an ascertainable federal right.

See Fullman v. Graddick, 739 F.2d 553, 557

11% Cir. 1984) (“[m]ere verification of a party’s

own conclusory allegations is not sufficient to

oppose a motion for summary judgment” with

regard to section 1983 conspiracy claim); see

also GRJ Investments, Inc., 132 F.3d at 1370

(granting motion to dismiss because plaintiff

failed to meet prerequisite of section 1983

conspiracy claim where plaintiff failed to make

particularized allegations that conspiracy

existed). More conclusive, however, is plaintiffs’

failure to show an actual denial of their

constitutional rights. As previously discussed at

length, plaintiffs have failed to show any

question of material fact which could establish

that defendants committed an actionable wrong.

As stated, a section 1983 conspiracy claim

requires that there be an underlying

constitutional violation. Without such,

plaintiffs may not overcome defendants’ motion

for summary judgment with regard to plaintiffs’

claim of conspiracy under section 1983. GJR

Investments, Inc., 132 F.3d at 1370 (failure to

allege violation of constitutional rights resulted

in dismissal of conspiracy claim); see also

Burrell v. Board of Trustees of Georgia Military

College, 970 F. ad 785, 792 (11 Cir. 1992).

B. Qualified Immunity

Even if defendant Singletary violated

plaintiffs constitutionally protected rights,

45

protects government officials performing

discretionary functions from civil liability if

their conduct violates no “clearly established

statutory or constitutional rights of which a

reasonable person would have known.” Lassiter

v. Alabama A & M Univ., Bd. of Trustees, 28

F.3d 1146, 1149 (11™ Cir. 1994) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818, 102

S. rt. 2727, 73 L.Ed.2d 396 (1982)).

Furthermore, the government actor has

qualified immunity unless the “act is so

obviously wrong, in the light of pre-existing law,

that only a plainly incompetent officer or one

who was knowingly violating the law would have

done such a thing.” Id.

In addressing a qualified immunity

defense, a two part analysis is used. First, the

defendant must prove that he was “acting

within the scope of his discretionary authority”

when the allegedly wrongful acts occurred.

Hudgins v. City of Ashburn, Georgia, 890 F.2d

396, 404 (11" Cir. 1989) (citing Rich v. Dollar,

841 F. ad 1558, 1563-64 (11% Cir. 1988)).

Second, if defendant provides such proof, “the

burden is on the plaintiff to show that, when the

defendant acted, the law established the

contours of a right so clearly that a reasonable

official would have understood his acts were

unlawful.” Post v. City of Fort Lauderdale, 7

F.3d 1552, 1557 (11 Cir. 1993), modified by 14

F.3d 583 (11™ Cir. 1994).

46

In the case at bar, it is undisputed that

Chief Singletary acted within his discretionary

authority with regard to the alleged defamation

during Singletary’s investigation of the Smiths,

the background check, and the swearing out of

the warrant in response to James Smith’s

videotaping efforts. Thus, the determination of

Singletary’s qualified immunity defense turns on

whether a clearly established right was violated

by his conduct. “For qualified immunity to be

surrendered, pre-existing law must dictate, that

is, truly compel (not just suggest or allow or

raise a question about), the conclusion for every

like-situated, reasonable government agent that

what defendant is doing violates federal law in

the circumstances.” Lassiter, 28 F.3d at 1150

(emphasis in original). The plaintiff has the

burden of showing that the federal rights which

were allegedly violated were “clearly

established.” Id. Furthermore, “courts must

not permit plaintiffs to discharge their burden

by referring to general rules and to the violation

of abstract rights.“ Id. (footnote omitted).

As the Court has explained at length,

previously, plaintiffs have presented no

evidence showing the existence of a genuine

issue for trial on any of their constitutional

claims. Plaintiffs are unable to establish that

any action taken by the City of Cumming or by

Chief Singletary was unlawful or

unconstitutional. Moreover, although the

Supreme Court has held that courts may no

longer impose a heightened pleading

requirement in section 1983 cases brought

47

against a municipalities, the Supreme Court has

specifically declined to extend its holding

Eleventh Circuit has recognized previously the

peril of allowing the use of “shotgun pleading”

tactics to “strip government officials of the

protection provided by the official immunity

doctrine.” Id. (quoting Marx v. Gumbinner, 855

F.2d 783, 792 (11™ Cir. 1988)). Accordingly,

because plaintiffs have been unable to assemble

any showing of a constitutional claim, the Court

grants Singletary’s summary judgment motion

as it relates to plaintiffs’ section 1983 claims

against Singletary in his individual capacity.

III. STATE LAW CLAIM OF DEFAMATION

Because all the claims over which the

Court had original jurisdiction now have been

removed from the case due to the Court’s

decision to grant defendants’ motions for

summary judgment with respect to all federal

claims, section 1367 (e) (3) applies. As the

Supreme Court has observed:

13

Section 1367 provides that “[t]he district

courts may decline to exercise supplemental jurisdiction

over a claim under subsection (a) if the district court has

dismissed all claims over which it has original

jurisdiction.” 28 U.S.C. § 1367 (c) (3).

48

A federal court should consider and

weigh in each case, and at every

stage of the litigation, the values of

judicial economy, convenience,

fairness, and comity in order to

decide whether to exercise

jurisdiction over a case brought in

that court involving pendent state-

law claims. When the balance of

these factors indicates that a case

properly belongs in state court, as

when the federal-law claims have

dropped out of the lawsuit in its

early stages and only state-law

claims remain, the federal court

should decline the exercise of

jurisdiction by dismissing the case

without prejudice.

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,

350, 108 S. Ct. 614, 98 L.Ed.2d 720 (1988)

(footnote omitted). See also Hardy v.

Birmingham Bd. of Educ., 954 F.2d 1546, 1550

(11% Cir. 1992).

The Court concludes that dismissal of the

state law claim asserting defamation is

appropriate in this case. “Needless decision of

state law should be avoided both as a matter of

comity and to promote justice between the

parties, by procuring from them a surer-footed

reading of applicable law. Certainly, if the

federal claims are dismissed before trial, even

though not insubstantial in a jurisdictional

sense, the state claims should be dismissed as

well.” United Mine Workers v. Gibbs, 383 U.S.

49

715, 726, 86 S. Ct. 1130, 16 L.Ed.2d 218 (1966)

(emphasis added) (footnote omitted).

Accordingly, the Court dismisses without

prejudice plaintiffs’ remaining state law claim of

defamation.

Conclusion

For the foregoing reasons, the Court finds

that defendants’ Motion for Summary Judgment

[35] is GRANTED as to all federal claims, and

plaintiffs’ state law claim of defamation is

DISMISSED without prejudice.

SO ORDERED, this 11“ day of January,

1999.

s/Julie E. Carnes

JULIE E. CARNES

UNITED STATES DISTRICT JUDGE

50

CERTIFICATE OF SERVICE

This is to certify that I have this day

served counsel for the Respondents with three

true copies of the foregoing Appendix by

depositing same in the U.S. Mail, with proper

postage affixed thereto, and addressed as

follows:

Thomas G. Tidwell, Esq.

400 Suntrust Plaza

303 Peachtree Street, N.E.

Atlanta, Georgia 30308

404-614-7400

This the 25th Day of August, 2000.

,,

ord H. Hardwick

Attorney for Petitioners

Georgia Bar. No. 325675

Roswell Professional Park

Suite E-1

11205 Alpharetta Highway

Roswell, Georgia 30076

(770) 772-4700