Melton v. McCarthan

356 Ga.App. 676

848 S.E.2d 684

MELTON et al.

v.MCCARTHAN.

A20A1567

Court of Appeals of Georgia.

September 11, 2020

Patrise M. Perkins-Hooker, Atlanta, Ashley Jenell Moore Palmer, Thomas Andrew Blaylock, Jonathan David Loegel, Kaye Woodard Burwell, for Appellant.

Jeffrey Robert Filipovits, Atlanta, for Appellee.

Colvin, Judge.

When the trial court denied Deputy Richard Melton and Sergeant Khalid Wise's motion for summary judgment, they sought and we granted interlocutory review. On appeal, they argue that the trial court erred in finding that material issues of fact precluded summary judgment on the grounds of official immunity. For the reasons that follow, we affirm in part and reverse in part.

"Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We review the grant or denial of summary judgment de novo, construing the evidence in favor of the nonmovant." (Citation and punctuation omitted.) Klingensmith v. Long County , 352 Ga. App. 21, 21, 833 S.E.2d 608 (2019).

So viewed, the record shows that, in July 2011, Johnnie McCarthan was incarcerated in the Fulton County Jail. On July 27, 2011, during the 7:00 a.m. through 3:00 p.m. shift, McCarthan's newly assigned cellmate attacked him. The cellmate threw objects and feces throughout the cell; he pushed and attempted to hurt McCarthan. In response, McCarthan grabbed the cellmate and began to yell for help. Deputy Melton responded to the cell, grabbed and forced the cellmate to his knees, pushed him onto the ground, and handcuffed him. Deputy Melton then moved him out of the cell. Deputy Melton did not complete an incident report and testified that he had no recollection of any incident between McCarthan and his cellmate on July 27, 2011.

At the afternoon shift change, Deputy Melton left for the day and Sergeant Wise arrived to find the cellmate out of his assigned cell. Having no knowledge of the earlier altercation, Sergeant Wise ordered the cellmate back in his assigned cell. Soon after being placed in the cell, the cellmate violently attacked and injured McCarthan.

McCarthan filed suit against Deputy Melton and Sergeant Wise, alleging that their failure to perform their ministerial duties resulted in the injuries he sustained. Specifically, McCarthan alleged that Deputy Melton and Sergeant Wise failed to follow jail policies 1500-17 and 0300-18, which govern procedures for reporting violent incidents and shift roll call meetings. The trial court denied Deputy Melton and Sergeant Wise's motion for summary judgment, and this interlocutory appeal followed.

The Georgia Constitution provides that "all officers and employees of the state or its departments and agencies may be subject to suit and may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions...." Ga. Const. of 1983, Art. I, Sec. II, Par. IX (d). Public employees are not held liable for discretionary acts unless "they act with actual malice or with actual intent to cause injury in the performance of their official functions." Id.

A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.

McDowell v. Smith , 285 Ga. 592, 593, 678 S.E.2d 922 (2009).

"Where there is an established policy requiring an official to take specified action in a specified situation, the policy creates a ministerial duty on the part of the official to perform the specified task." (Citation omitted.) Grammens v. Dollar , 287 Ga. 618, 620, 697 S.E.2d 775 (2010). In order for a written policy to impose a ministerial duty, it "must mandate simple, absolute, and definite action and require the execution of a specific task without any exercise of discretion." (Citation omitted.) Id. "When a policy requires a public official to exercise discretion in its implementation by determining if the necessary prerequisite condition to the ministerial act exists, the policy does not require the performance of a ministerial duty[.]" (Citation omitted.) Hill v. Jackson , 336 Ga. App. 679, 684 (1), 783 S.E.2d 719 (2016).

1. Deputy Melton argues that the trial court erred in finding he was not entitled to official immunity as a matter of law. Specifically, Deputy Melton contends that his duty to report incidents under Policy 1500-17 was discretionary, not ministerial. We disagree.

Policy 1500-17 states in relevant part,

(II) (1) Incidents which result in physical harm or threaten the safety of any person in the facility, or threaten the orderly control and security of the facility, will be documented in an Incident Report and submitted to appropriate supervisor no later than the conclusion of the tour of duty when any of the following occur: A. Discharge of a firearm or other weapon[;] B. Use of chemical agents to control inmates[:] C. Use of force to control inmates [;] D. Inmates

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