Kemeness v. Worth Cnty.

449 F.Supp.3d 1318

Lon KEMENESS, Plaintiff,

v.WORTH COUNTY, GEORGIA, et al., Defendants.

Case No. 1:19-CV-120 (LAG)

United States District Court, M.D. Georgia, Albany Division.

Signed March 18, 2020

Samuel L. Mikell, Kathryn Hughes Pinckney, Brent J. Savage, Savannah, GA, for Plaintiff.

Raleigh Rollins, Thomasville, GA, for Defendants.

ORDER

LESLIE A. GARDNER, JUDGE

Before the Court are Defendants Worth County, Georgia and Sheriff Don Whitaker's (Worth County Defendants) Motion to Dismiss (Doc. 12 ) and Defendant Jeff Hobby's Motion to Dismiss (Doc. 11 ). For the reasons set forth below, the Worth County Defendants' Motion is GRANTED , and Hobby's Motion is GRANTED in part and DENIED in part . All of Plaintiff's claims against the Worth County Defendants and Plaintiff's attorney-client privilege claim against Hobby are DISMISSED with prejudice . Plaintiff's 42 U.S.C. § 1983, Federal Wiretap Act, and Georgia eavesdropping claims against Hobby remain.

PROCEDURAL BACKGROUND

On July 12, 2019, Plaintiff Lon Kemeness filed this putative class action against Hobby, Worth County, and Sheriff Whitaker (in his official capacity as Worth County sheriff), alleging that Hobby—the former Worth County sheriff—had recorded privileged meetings between Plaintiff and his clients in the Worth County Jail's attorney-client interview room. (Doc. 1. ) Hobby filed his Motion to Dismiss on August 14, 2019, and the Worth County Defendants filed their Motion to Dismiss two days later.¹ (Docs. 11, 12.) The Worth County Defendants filed a supplemental brief to correct an error in their Motion on August 21. (Doc. 15. ) Both Motions seek dismissal of all claims. (Doc. 11 at 1; Doc. 12 at 4. ) Plaintiff responded to Hobby and the Worth County Defendants' Motions on September 18 and 20, respectively. (Docs. 18, 19.) The Worth County Defendants replied on October 4. (Doc. 21. ) Hobby did not file a reply. The Motions are now ripe for review. See M.D. Ga. L.R. 7.3.1(A).

LEGAL STANDARD

To survive a motion to dismiss under Rule 12(b)(6), "a complaint must contain specific 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is plausible on its face if the complaint alleges enough facts to "allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. A complaint must plead "enough fact[s] to raise a reasonable expectation that discovery will reveal evidence" of the defendant's liability. Twombly , 550 U.S. at 556, 127 S.Ct. 1955. The Court must "take the factual allegations in the complaint as true and construe them in the light most favorable to the plaintiffs," but the same liberal reading does not apply to legal conclusions. Edwards v. Prime, Inc. , 602 F.3d 1276, 1291 (11th Cir. 2010). "[A] plaintiff armed with nothing more than conclusions" cannot "unlock the doors of discovery." Iqbal , 556 U.S. at 678–79, 129 S.Ct. 1937. Additionally, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678, 129 S.Ct. 1937.

FACTUAL ALLEGATIONS

At some point while he was sheriff of Worth County, Hobby had an automated recording device placed in the attorney-client interview room at the Worth County Jail. (Doc. 1 ¶¶ 27, 39, 46.) The device recorded privileged meetings between attorneys and their clients, jail inmates. (Id. ¶ 19.) The device recorded at least six such meetings between Plaintiff and his clients. (Id. ¶ 25.) Neither Hobby nor any representative of the Worth County Sheriff's Office obtained a warrant authorizing the surveillance of the meetings. (Id. ¶ 20.) Neither Plaintiff nor any of his clients knew that a recording device was in the room or that anyone was monitoring the content of their conversations. (Id. ¶¶ 24, 26.)

On October 3, 2017, Hobby was indicted for various offenses arising out of a search of Worth County High School. (Id. ¶¶ 10–11.) On November 13, Governor Nathan Deal suspended Hobby from office and appointed Bobby Sapp as interim sheriff. (Id. ¶ 12.) Sapp reported the discovery of the recording device to the Georgia Bureau of Investigation on February 26, 2018. (Id. ¶ 15.) In March 2018, Hobby was indicted on one count of violation of oath office and sixty-six counts of eavesdropping and surveillance in violation of O.C.G.A. § 16-11-62, based on alleged eavesdropping in the jail interview room from July 12, 2017 to February 26, 2018. (Id. ¶ 16.) Hobby was eventually charged with additional counts of eavesdropping and surveillance, for a total of eighty-nine counts. (Id. ¶ 17.) In June 2018, Hobby pled guilty in Worth County Superior Court to all charges arising out of both the school search and the jail recordings. (Id. ¶ 18.)

Plaintiff alleges eight counts in his Complaint:

(I) violations of Georgia's eavesdropping statute, O.C.G.A. § 16-11-62(2), against all Defendants, (id. ¶¶ 37–41);

(II) violations of Plaintiff's attorney-client privilege against all Defendants, (id. ¶¶ 42–48);

(III) violations of the Fourth Amendment right to privacy, in claims brought pursuant to § 1983, against the Worth County Defendants, (id. ¶¶ 49–56);

(IV) violations of the Fourth Amendment right to privacy, in a claim brought pursuant to § 1983, against Hobby, (id. ¶¶ 57–63);

(V) violations of the Federal Wiretap Act (Act), 18 U.S.C. § 2510 et seq. , against all Defendants, (id. ¶¶ 64–70);

(VI) a claim for punitive damages against Hobby, (id. ¶¶ 71–73);

(VI)² a claim for attorney's fees under O.C.G.A. § 13-6-11 against all Defendants, (id. ¶¶ 74–76); and

(VII) a claim for attorney's fees under 42 U.S.C. § 1988 and 18 U.S.C. § 2520(b)(3) against all Defendants, (id. ¶¶ 71–73).

DISCUSSION

I. Worth County Defendants' State Sovereign Immunity

The Worth County Defendants argue that the doctrine of sovereign immunity bars Plaintiff's state-law claims (i.e. his O.C.G.A. § 16-11-62 and attorney-client privilege claims) against Worth County and Sheriff Whitaker. (Doc. 12 at 14–15.) Plaintiff does not address this argument in his Response. (See Doc. 19.) Sovereign immunity protects both Sheriff Whitaker in his official capacity and Worth County from suit for violations of state law. "The Georgia Constitution extends sovereign immunity to ‘the state and all of its departments and agencies,’ including sheriffs and counties." Richardson v. Quitman Cty. , 912 F. Supp. 2d 1354, 1368 (M.D. Ga. 2012). "[T]he county sheriff in his official capacity is immune from tort liability in performing an official function and may be liable only to the extent that the county has waived sovereign immunity by statute." Boyd v. Nichols , 616 F. Supp. 2d 1331, 1349 (M.D. Ga. 2009) (quoting Howard v. City of Columbus , 239 Ga.App. 399, 521 S.E.2d 51, 65 (1999) ).

"[S]overeign immunity is not ‘an affirmative defense that must be established by the party seeking its protection.’ To the contrary, immunity from suit is ‘a privilege that is subject to waiver by the State, and the waiver must be established by the party seeking to benefit from the waiver.’ " Fulton Cty. Sch. Dist. v. Jenkins , 347 Ga.App. 448, 820 S.E.2d 75, 77 (2018) (quoting Tift Cty. Sch. Dist. v. Martinez , 331 Ga.App. 423, 771 S.E.2d 117, 119–20 (2015) ). Therefore, the Worth County Defendants are entitled to the benefit of sovereign immunity unless Plaintiff can establish that sovereign immunity has been waived. Plaintiff has not identified any statute or other mechanism by which sovereign immunity has been waived. Accordingly, Plaintiff's state-law claims (Counts I and II) against the Worth County Defendants are barred.

II. Sheriff Whitaker's Eleventh Amendment Immunity

The Worth County Defendants also argue that Plaintiff's § 1983 claim against Sheriff Whitaker is barred by Eleventh Amendment immunity because Sheriff Whitaker, in his official capacity, is an arm of the state. (Doc. 12 at 4–8.) "Eleventh Amendment immunity bars suits brought in federal court when the State itself is sued and when an ‘arm of the State’ is sued," unless the state waives it or Congress abrogates it. Manders v. Lee , 338 F.3d 1304, 1308 (11th Cir. 2003) (en banc); Cassady v. Hall , 892 F.3d 1150, 1152 (11th Cir. 2018).

A sheriff in Georgia "acts on behalf of the State in his function as a law enforcement officer and keeper of the peace." Grech v. Clayton Cty. , 335 F.3d 1326, 1347 (11th Cir. 2003) ; see also Richardson , 912 F. Supp. 2d at 1366 ("A Georgia sheriff is considered an ‘arm of the State’ when performing law enforcement functions, such as detaining and arresting suspects."). Although a sheriff does not necessarily "wear[ ] a ‘state hat’ for all functions," the Eleventh Circuit has "decided that a sheriff's ‘authority and duty to administer the jail in his jurisdiction flows from the State, not [the] County.’ " Purcell ex rel. Estate of Morgan v. Toombs Cty. , 400 F.3d 1313, 1325 (11th Cir. 2005) (quoting Manders , 338 F.3d at 1315 ); Lake v. Skelton , 840 F.3d 1334, 1340 (11th Cir. 2016) ("The sheriff, not the county, is the ‘governmental unit, subdivision, or agency’ having custody of inmates in county jails." (quoting O.C.G.A. § 42-5-2 )). The Worth County sheriff, then, functions as an arm of the state—and is thus entitled to Eleventh Amendment immunity—"when promulgating policies and procedures governing conditions of confinement at the [Worth] County Jail." Purcell , 400 F.3d at 1325.

Plaintiff's claim against Sheriff Whitaker is based on Hobby's allegedly causing a recording device to be placed in the jail attorney-client interview room. (Doc. 1 ¶¶ 27, 39, 46, 53.) Hobby's conduct concerns his administration of the jail and his promulgation of procedures governing conditions of confinement. This conduct falls squarely under the "state hat" functions as described by Manders and Purcell. A...