Turner v. Martin

521 F.Supp.3d 1310

Melvin TURNER, Plaintiff,

v.Jo MARTIN, et al., Defendants.

CV 120-050

United States District Court, S.D. Georgia, Augusta Division.

Signed February 5, 2021

John Paul Batson, John P. Batson, Attorney at Law, Augusta, GA, for Plaintiff.

Harold V. Jones, II, Law Office of Harold Jones, Augusta, GA, for Defendants.

ORDER

J. RANDAL HALL, CHIEF JUDGE

Plaintiff Melvin Turner ("Turner") asserts claims against Corporal Jo Martin ("Martin"), Sheriff Richard Roundtree ("Roundtree"), Officer John or Jane Doe(s), Major Steven Strickland ("Strickland"), Sergeant William Steptoe ("Steptoe"), Lieutenant Amelio R. Lamkin ("Lamkin"), Lieutenant Mike D'Amico ("D'Amico"), and members of the Sheriff's Merit Board John and/or Jane Does for deprivation of his federal constitutional rights under 42 U.S.C. § 1983. All Defendants have filed individual motions to dismiss in lieu of answering Plaintiff's Complaint. (Docs. 14-21.) The Court will consider each of the motions in Part III, infra.

I. BACKGROUND

On March 31, 2018, Plaintiff was in an automobile accident on Ellis Street in Augusta, Georgia and fled the scene. (Compl., Doc. 1, ¶ 87.) Subsequently, a group of police officers located Plaintiff at a friend's residence, and he was arrested by Defendant Martin. After Defendant Martin handcuffed Plaintiff, he hit Plaintiff in the face and stated, "that's for making me crawl through the window, pig." (Id. ¶¶ 101-105.) This is the incident giving rise to the present suit.

Plaintiff's Complaint also recounts seven prior incidents involving Defendant Martin to illustrate his "performance and disciplinary history" and prove "it was substantially likely that Martin would use force that was not objectively reasonable again by the time he hit [Plaintiff]." (Id. at 2, 4.) The Court summarizes each prior occurrence below in the light most favorable to Plaintiff as the non-moving party.

1. December 2009 - OC Spray Incident

Defendant Martin used "OC Spray" to subdue an arrestee and then failed to follow the appropriate reporting procedure and notify a supervisor of the use; he only notified dispatch. (Id. ¶¶ 13-15.) Defendant Martin was "reprimanded and counselled" by Defendant Steptoe and this was recorded in Defendant Martin's personnel file. (Id. ¶¶ 16-17.)

2. December 2010 - Yulia Filimonova ("Filimonova") Incident

On December 18, 2010, Defendant Martin was working a "special" shift as a bouncer at a sports bar. (Id. ¶ 20.) Filimonova, a bartender, had been joking around with Defendant Martin and according to the Disciplinary Report and Internal Affairs Report, he "slapped [her] on her buttocks with an open hand." (Id. ¶ 28.) Filimonova complained to a manager and a waitress about the action and approached Defendant Martin about it, to which he "brandished his handcuffs and threatened her with jail if she told anyone about the incident." (Id. ¶¶ 32-34.) Filimonova proceeded to call her boyfriend who arrived at the bar and approached Defendant Martin about the incident. (Id. ¶¶ 36-37.) Defendant Martin "physically menaced" and forced the boyfriend outside the bar, and then proceeded to arrest him for disorderly conduct. (Id. ¶¶ 38, 43.) Another officer attempted to intervene and advised Defendant Martin to simply cite the boyfriend for disorderly conduct, but the Complaint does not clarify if this course of action was taken. (Id. ¶ 44.)

3. February 2011 - Baton Incident

On February 20, 2011, Defendant Steptoe wrote an Internal Affairs Report concerning Defendant Martin hitting a suspect in the back of the knee with an "asp baton" after the suspect was already under the control of other officers. (Id. ¶¶ 48, 51.) Defendant Steptoe sent the complaint to the Disciplinary Review Board with a suggestion that Defendant Martin be suspended for eight days with an additional probation period. (Id. ¶ 50.) Upon reviewing the case, the Disciplinary Board accepted the recommendation and suspended Defendant Martin for eight days and gave him twelve months of probation. (Id. ¶ 52.) The Sheriff ¹ approved the punishment and gave notice to the Sheriff's Merit Board, which upheld the suspension based upon the Sheriff's approval. (Id. ¶¶ 53-55.)

4. February 2014 - Verbal Abuse Incident

On February 14, 2014, Denise Lachman contacted Internal Affairs to complain that Defendant Martin screamed at her at the scene of an auto accident, but was pleasant to the other driver, who Defendant Martin appeared to know. (Id. ¶¶ 58-59.)

5. February 2014 - Complaint to Internal Affairs

On February 25, 2014, Internal Affairs received a complaint from Andrea D. Rodriguez that when traffic lights were out, Ms. Rodriguez asked Defendant Martin, who was working the area, for instructions and he "berated her" and "his behavior was unprofessional and aggressive." (Id. ¶¶ 63, 65-66.) The same day, Internal Affairs emailed Defendant Lamkin, Division Commander, to let him know this was the third or fourth complaint Internal Affairs had received regarding Defendant Martin in the last four to five months. (Id. ¶ 67.)

6. May 2016 - Aiken County Incident

On May 27, 2016 around 4:00 AM, Crystal Campbell, a friend of Defendant Martin, was intoxicated and called Defendant Martin and another officer asking for help. (Id. ¶¶ 69-70). Defendant Martin, while on duty, responded in his patrol car and drove Ms. Campbell to North Augusta, South Carolina without notifying his supervisors. (Id. ¶¶ 71-72.) In her intoxicated state, Ms. Campbell fell asleep and when they arrived at her house, she was "combative and uncooperative" so Defendant Martin had to physically remove her from the car. (Id. ¶ 73-74.) Ms. Campbell reacted to Defendant Martin's force by biting him, and in response, Defendant Martin struck her across the face. (Id. ¶ 75-76.) The Aiken County Sheriff's Office reported the incident to the Richmond County Sheriff's Department before Defendant Martin had informed them of the situation. (Id. ¶ 77.) The Internal Affairs review stated that Defendant Martin's actions violated the policies of the Sheriff's Office and have left him open to false accusations or possible arrest. (Id. ¶ 82.) Defendant Martin admitted to the following policy violations: (a) failing to notify a supervisor to handle a situation involving friends or family; (b) failing to notify dispatch he was transporting a female in his patrol car, and of the time/mileage/location/crossing of state lines while transporting a female; (c) failing to notify supervisor of the entire situation and about the assault incident even after it occurred; (d) failing to file the required use of force and case reports; and (e) failing to activate his body camera during the occurrence. (Id. ¶ 83.)

7. 2017 - Motorcycle Incident

In 2017, Defendant Martin was pursuing a motorcycle that was evading a traffic stop with the help of another officer.² (Id. ¶ 84.) Defendant Martin drove his car in a way to "push" the motorcycle towards the curb in an attempt to stop the pursuit. (Id. ) Defendant D'Amico wrote a report that the "box technique" used was not appropriate because the vehicle being pursued was a motorcycle and Defendant Martin inappropriately used the technique twice during the chase. (Id. ¶ 85.)

Throughout Plaintiff's recounting of these seven occurrences, there is incessant conclusory language as a summary to each event suggesting things like Defendant Martin "should have been fired" or "should have been terminated after this incident," as well as propositions that actions "should have put supervisors on notice," and many more. The Court addresses the legal standard in the next section but notes here that it has no duty to accept conclusory statements as true at the motion to dismiss stage.

II. LEGAL STANDARDS

The Defendants challenge Plaintiff's Complaint and move to dismiss under Rules 12(b)(1) and 12(b)(6).³

A. 12(b)(1) - Subject Matter Jurisdiction

A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure may either be a "facial" or "factual" attack. Morrison v. Amway Corp., 323 F.3d 920, 924-25 n.5 (11th Cir. 2003). Defendants’ motions move to dismiss pursuant to the Eleventh Amendment and doctrine of qualified immunity. Therefore, as the motions relate to immunity, they are facial attacks on the Complaint because the Court's resolution of the immunity question does not depend on adjudicating the merits of the case. Haven v. Bd. of Trs. of Three Rivers Reg'l Library Sys., 69 F. Supp. 3d 1359, 1363 (S.D. Ga. 2014) ("In the Eleventh Circuit, the defense of sovereign immunity is not merely a defense on the merits. An assertion of Eleventh Amendment sovereign immunity essentially challenges a court's subject matter jurisdiction.") (citing Seaborn v. State of Fla. Dep't of Corr., 143 F.3d 1405, 1407 (11th Cir. 1998) (internal quotation marks omitted)); Johnson v. Georgia, No. 1:13-CV-3155, 2014 WL 1406415, at *2 (N.D. Ga. Apr. 9, 2014) (treating the state's Rule 12(b)(1) motion to dismiss the plaintiff's § 1983 claims on immunity grounds as a facial attack in the absence of citations to extrinsic evidence by the state). In a facial attack on subject matter jurisdiction, the complaint's allegations are deemed presumptively truthful, and the "court is required merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction." Stalley ex rel. United States v. Orlando Reg’1 Healthcare Sys., Inc., 524 F.3d 1229, 1233 (11th Cir. 2008) (quoting Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (per curiam)) (internal quotation marks omitted).

B. 12(b)(6) - Failure to State a Claim

In considering a motion to dismiss under Rule 12(b)(6), the Court tests the legal sufficiency of the complaint. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). Pursuant to Federal Rule of Civil Procedure 8(a)(2), a complaint must contain "a...