Case 1:14-cv-03874-ELR Document 6-1 Filed 12/29/14 Page 1 of 28

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
COREY FALLEN,
Plaintiff,
v.
THOMAS MCENROE, in his
individual capacity; JOSEPH
HADLEY, in his individual capacity;
and JOHN DOE, in his individual
capacity,

Civil Action No.

1:14-CV-03874-ELR

Defendants.
DEFENDANTS BRIEF IN SUPPORT OF THEIR MOTION TO DISMISS
Defendants Thomas McEnroe (McEnroe) and Joseph Hadley (Hadley)
(collectively Officers) submit their brief in support of their motion to dismiss
pursuant to Fed. R. Civ. P. 12 (b) (3) and (b) (6). Plaintiffs claims should be
dismissed as, the Officers are entitled to qualified immunity, the Complaint fails to
state a claim against the Officers, and because venue is improper in this Court.1
FACTUAL BACKGROUND
This is a civil rights case in which Plaintiff sued the Officers individually,
arising from the investigation of the murder of Denise Ramsey, who disappeared

The Officers attach affidavits should the Court determine further evidence would
aid the Court. Hadleys affidavit is attached as Exhibit A, McEnroes at Exhibit B.
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on December 2, 2011, after working at the Doll House in New Jersey. (See
Complaint). Plaintiff alleges false imprisonment, malicious prosecution and
violation of the Fourth and Fourteenth Amendments of the U.S. Constitution.
McEnroe (not Hadley) was assigned to investigate the murder. His
investigation included interviewing many witnesses, such as Erica Hamilton,
Jasmine Jones and Gary Capone, who worked with Ms. Ramsey the night she
disappeared. (Complaint, 12, 18, 19). These witnesses reported seeing two
suspicious men engage in a dispute with Ms. Ramsey the night she disappeared;
that they gave her three $100 bills and asked her to bring them 300 $1 bills, but
instead she returned with 100 $1 bills. (Id. at 20-21). They reported that the men
threatened to kill Ms. Ramsey and others if their money was not returned. (Id.).
They reported that one of the men bragged about beating a murder rap in Atlanta
and entered the dj booth to announce that. (Id. at 20-22, 25).
Ms. Hamilton and Ms. Jones identified Plaintiff and Johnnie Jones (J.
Jones) as the two suspicious men seen with Ms. Ramsey that night, and Ms.
Hamilton reported seeing Ms. Ramsey get into a vehicle with both men after her
shift ended the night she disappeared. (Id. at 23- 24, 27). Ms. Jones identified
Plaintiff from a photo line-up presented by Hadley, as New Jersey Attorney
General guidelines mandate that photo line-ups be presented by an officer with no

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knowledge of the investigation. (Hadley Aff., 6). Capone also identified Plaintiff
as the man he saw with Ms. Ramsey before she disappeared. (Complaint, 27).
The Officers went to Atlanta in September 2012, to gather DNA samples
from Plaintiff and J. Jones. (Id. at 35-37).2 Hadley went only to help navigate
the area as he is from Georgia, and to provide help if needed since McEnroe was
approaching an individual possibly involved in a homicide. (Hadley Aff., 7).
After that trip, the Officers never saw, spoke with, or otherwise communicated
with Plaintiff. (Hadley Aff., 14, 17; McEnroe Aff. 19, 21).

Jones DNA

matched DNA found on a sweatshirt wrapped around Ms. Ramseys body and
under her fingernails. (Complaint, 53).
McEnroe executed an Affidavit in Support of Arrest Warrant (Arrest
Affidavit) on October 22, 2012 for Plaintiff for conspiracy to commit murder, and
for J. Jones, whose DNA was found on Ms. Ramseys body, for the murder of Ms.
Ramsey. (Complaint, 53,55; Arrest Aff., 21). Hadley was not told that
McEnroe was going to seek an arrest warrant; he was not involved in preparing the

Plaintiff said nothing about his mother, wife or employer verifying his
whereabouts. He stated he had never been to New Jersey, did not know where it
was, and did not want to discuss the investigation. (McEnroe Aff., 13; Hadley
Aff., 8).
3
Since Hadley was in Atlanta, he accompanied McEnroe to meet with Anna
Brown, who was in a photo found on Ms. Ramseys body. (Hadley Aff., 12).
This was the only interview Hadley participated in prior to Plaintiffs arrest, and
the Complaint does not suggest otherwise. (Id.).
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Arrest Affidavit; he did not see it before it was submitted to the court; and he did
not testify before any judge or magistrate. (Hadley Aff., 11). The next day, the
Officers went to Atlanta in connection with the warrants. (Complaint, 75).
They did not speak with Plaintiff as he turned himself over to local officers after
the Officers left to return to New Jersey. (Id. at 77; Hadley Aff., 14-15, 17).
On November 28, 2012, Plaintiff was extradited to New Jersey. (Complaint,
83). Plaintiff does not allege that Hadley was on the plane with Plaintiff. (Id.).
But neither was McEnroe, and in fact the Officers have never taken custody of
Plaintiff. (McEnroe Aff., 22; Hadley Aff., 18).
Prior to April 2013, no one told the Officers that Plaintiff was repeatedly
declaring his innocence, or that he had evidence as to his whereabouts the night
Ms. Ramsey disappeared. (Hadley Aff., 17; McEnroe Aff., 25). Then, in April
2013, the Officers met with the Essex County Prosecutor to review documents
concerning Plaintiffs whereabouts the night Ms. Ramsey disappeared.
(Complaint, 99; Hadley Aff., 19).

They had not seen these documents

previously. (Hadley Aff., 20; McEnroe Aff., 25). On April 20, 2013, after the
Officers verified the accuracy of the documents, Plaintiff was released from the
Essex County Jail. (Complaint, 103).
ARGUMENT AND CITATION OF AUTHORITY
I.

The Standard of Review.

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A motion to dismiss should be granted if it appears beyond a doubt that the

plaintiff can prove no set of facts in support of its claim which would entitle it to
relief. Conley v. Gibson, 355 U.S. 41, 45-46, (1957). In evaluating such a motion,
a court accepts the factual allegations in the complaint as true and construes them
in the light most favorable to the plaintiff. Id.
II.

Count I, Unreasonable Arrest Violating the Fourth Amendment, Should

be Dismissed under the Qualified Immunity Doctrine, and because
Hadley was not Involved in Seeking an Arrest Warrant.
Count I alleges a violation of the Fourth Amendment of the U.S.

Constitution as to Plaintiffs arrest. (Complaint, 114). The Officers are entitled

to qualified immunity which shields officers from liability when their conduct does
not violate clearly established constitutional rights of which a reasonable person
would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Qualified immunity provides complete protection for individual public
officials performing discretionary functions insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable
person would have known. Sherrod v. Johnson, 667 F.3d. 1359, 1363 (11th Cir.,
2012). Qualified immunity allows officers to carry out their discretionary duties
without the fear of personal liability or harassing litigation, protecting from suit all
but the plainly incompetent or one who is knowingly violating the federal law.
Festa v. Santa Rosa County, 413 Fed. Appx 182, 184 (11th Cir. 2011). In all but
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the most exceptional cases, qualified immunity protects government officials

performing discretionary functions from the burdens of civil trials and from
liability for damages. Means v. City of Atl. Police Dept., 262 Ga. App. 700, 705,
586 S.E.2d 373, 377 (2003) (action asserted federal claim under 42 U.S.C. 1983).
Because the Officers were acting within their discretionary authority, the
burden shifts to Plaintiff to show that they are not entitled to qualified immunity.
Festa, at 185. In order to meet this burden, Plaintiff must show that the Officers
conduct amounted to a constitutional violation and that the right violated was
clearly established at the time of the violation. Id.
In determining whether a right was violated, courts must consider whether
pre-existing law in effect at the time of the alleged acts provided fair warning to
officers that their conduct was unconstitutional. Id. at 185. If it would be clear to
any reasonable officer in the same situation that his actions were
unconstitutional, then there is no immunity, however, if officers of reasonable
competence could disagree on the issue, immunity should be recognized. Id.
(quoting Malley v. Briggs, 475 U.S. 335, 341 (2002)).
The test of clearly established law cannot apply at a high level of
generality; instead to deny qualified immunity, the right the official is alleged to
have violated must have been clearly established in a more particularized, and
hence more relevant sense. Id. (citation omitted).
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In cases alleging unreasonable seizures and unlawful detentions, the

threshold question is whether the officer acted not with probable cause, but merely
arguable probable cause. Id. It is well established in our circuit that when there
is arguable probable cause for an arrest, qualified immunity applies even if actual
probable cause did not exist. . . Arguable probable cause exists if, under all of the
facts and circumstances, an officer reasonably could - not necessarily would - have
believed that probable cause was present. Id. at 185-86 (citations omitted). See
also Feliciano v. City of Miami Beach, 707 F.3d. 1244 (11th Cir. 2013).
Probable cause requires only a probability or substantial chance of
criminal activity, not an actual showing of such activity . . . [and] seemingly
innocent activity can be the basis for probable cause.
overwhelmingly

convincing

evidence,

but

only

[It] does not require

reasonably

trustworthy

information. Case v. Eslinger, 555 F.3d 1317, 1327 (11th Cir. 2009) (officer
entitled to rely on allegations of an informant and corroborating evidence as
probable cause).
The protection applies regardless of whether the government officials error
is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law
and fact. Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotations
omitted). In fact, qualified immunity applies where the officer reasonably but
mistakenly concludes that probable causes exists. Brown v. City of Huntsville,
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Ala., 608 F.3d 724, 734-35 (11th Cir. 2010). As long as the arresting officer had
arguable probable cause to arrest for any offense, qualified immunity will apply.
Id. at 735. See also Malley v. Briggs, 475 U.S. 335, 343 (1986) (law enforcement
officers have ample room for mistaken judgments before liability is imposed).
a. McEnroe is entitled to qualified immunity.
The Complaint distorts the facts to create the specter of impropriety by the
Officers, but read carefully, one can discern that McEnroe conducted a proper
investigation which led him to reasonably believe that Plaintiff was involved in
Ms. Ramseys murder. For example, McEnroe interviewed Ms. Hamilton, Ms.
Jones, and Mr. Capone, who worked with Ms. Ramsey the night she disappeared
and reported seeing two suspicious men engage in a monetary dispute with Ms.
Ramsey; that the men gave her 3 one-hundred dollar bills and asked her to bring
them 300 one-dollar bills in return, but instead she returned with change for only
$100; that the men then became enraged and threatened to kill Ms. Ramsey; and
that one of the men entered the dj booth to announce that he had just beaten a
murder rap in Atlanta. (Complaint, 19-22, 25).
McEnroe arranged for a photo line-up, during which Ms. Jones identified
Plaintiff as one of the two suspicious men she saw that night. (Complaint, 27).
Another witness, Mr. Capone, also identified Plaintiff as one of the men arguing
with Ms. Ramsey and threatening to kill people. (Id.). Ms. Hamilton and Jones
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identified J. Jones as the other man seen with Plaintiff, and Ms. Hamilton reported
seeing Ms. Ramsey get into a vehicle with Plaintiff and J. Jones the night she
disappeared. (Complaint, 23, 24). Phone records also placed J. Jones near the
Doll House and the area where Ms. Ramseys body was found. (Id. at 23, 29).
This further establishes probable cause that Plaintiff was involved in Ms. Ramseys
murder.

See Craig v. Collins, No. 13-1873, 2013 WL 5271521 at *8 (E.D. Pa.

Sept. 17, 2013) (identification of the plaintiff from two witnesses, video that the
defendant resembled the shooter, and an account of a recent altercation between
the victim and the plaintiff sufficient so that the detectives were not required to
investigate further before seeking an application for an arrest warrant).
McEnroe also obtained DNA samples from Plaintiff and J.Jones which
confirmed that J. Jones was a contributor of DNA found on Ms. Ramseys body.
(Complaint, 53).4 That Plaintiffs DNA was not found at the crime scene is
irrelevant given witness reports that he and J. Jones were seen with Ms. Ramsey
the night of her disappearance, this providing ample probable cause that Plaintiff
was involved in Ms. Ramseys murder, along with J. Jones.

While there, Plaintiff said he could not speak to the Officers as his mother was
not home and he did not have the key to the security door. (McEnroe Aff., 13).
His mother then came by and unlocked the door. (Id.). Plaintiff made no reference
to working at the time of Ms. Ramseys disappearance, nor did he indicate that
anyone had any evidence regarding his whereabouts that night. (Id.). He said he
had never been to New Jersey and did not know where it was. (Id.).
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The Complaint fails to identify the crime for which Plaintiff was arrested,
and to attach the Arrest Affidavit, though Plaintiff relies on it as the basis for his
claims and recites from it. (See Complaint, 12-27, 29, 32, 52-53, 56-63, 70, 73).
The warrant sought as to Plaintiff was for the crime of conspiracy to commit
murder only. (Arrest Aff., 21).5 In contrast, as J. Jones DNA was found on Ms.
Ramsey, the arrest warrant for him was for the murder of Ms. Ramsey.
Plaintiff alleges that the Arrest Affidavit materially misrepresented the
evidence against Plaintiff, failed to identify the sources of information, failed to
provide information as to how Plaintiff was identified, and omitted material
information about the investigation, including the absence of physical evidence
(specifically DNA) of Plaintiffs involvement in a crime. (Complaint, 56). The
Arrest Affidavit shows these claims are untrue as it sets forth ample evidence of
arguable probable cause that Plaintiff was involved in Ms. Ramseys murder.
Plaintiffs claim that during the DNA swab, he stated that his mother, wife
and employer could verify that he was not in New Jersey does not vitiate qualified
immunity. First, no such statements were made. Second, even if they were, that a

The Arrest Affidavit is attached hereto as Exhibit C and can be considered on a

motion to dismiss as it is central to plaintiffs claim and undisputed. In Re ING
Group, 749 F. Supp.2d 1388, 1344 (N.D. Ga. 2010); McPhearson v. Anderson, 874
F. Supp. 2d 572, at n. 7 (E.D. Va. 2012) (arrest warrant not attached to complaint
but attached to motion to dismiss can be considered by the court without
converting the motion to one for summary judgment).
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suspect denies being at the scene of the crime does not suggest lack of probable
cause. If it did, then warrants would never be issued but for the rare occasions
when suspects admit to committing a crime.
The Arrest Affidavit also does not suggest that there was physical evidence
of [Plaintiffs] involvement in any criminal act or that Plaintiffs DNA was found
at the scene, as Plaintiff alleges. Rather, it identifies only J. Jones as a contributor
of DNA found on Ms. Ramseys body. (Id. at 20). The Arrest Affidavit, and the
allegations in the Complaint, each establish arguable probable cause to arrest
Plaintiff for conspiracy to commit murder.
b. Hadley should be dismissed as he was not involved in the
investigation and is entitled to qualified immunity.
The Complaint against Hadley is woefully deficient and fails to state a claim
against him. Indeed, all of the allegations surrounding the investigation leading up
to Plaintiffs arrest, including executing the Arrest Affidavit, are directed to
McEnroe. (See e.g. Complaint, 19-22; 25, 27, 31, 34, 52, 55- 63, 67, 70, 83-91).
Hadley was not assigned to, actively involved in, or responsible for
conducting the investigation. (Complaint, 12 and generally, Hadley Aff., 5, 6).
Moreover, the Complaint is devoid of allegations that Hadley knew that McEnroe
intended to execute the Arrest Affidavit, was involved in its preparation, saw it
before it was submitted to the court or gave any testimony. In fact, Hadley had no
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involvement. (Hadley Aff., 11). Moreover, Plaintiffs generalized allegations

that upon information and belief Hadley made no reasonable efforts to prevent
Detective McEnroe from submitting the Affidavit and/or obtaining a warrant for
Plaintiffs arrest are insufficient to state a claim against Hadley.
Hadleys role was limited to conducting the photo-line up since he was not
involved in the investigation, and accompanying McEnroe to Atlanta in September
and October as he was familiar with Georgia and to provide assistance if needed.
(Id. 6-7). He was not involved in witness interviews prior to April 2013 but for
one in Atlanta, and the Complaint does not allege otherwise. (Id. at 12).
III.

Count II Alleging a Violation of the Fourteenth Amendment should be

Dismissed.

In a Fourteenth Amendment claim of violation of due process, an officer is

immune from liability unless the plaintiff shows that the officer acted with
deliberate indifference.6 Mears v. McCulley, 881 F.Supp.2d 1305 (N.D. Ala. 2012)
(citing West v. Tillman, 496 F.3d 1321 (11th Cir. 2007)). This means that [the
defendant] had subjective knowledge of a risk of serious harm and disregarded that
risk by actions beyond mere negligence. Mears, at 1329 (citation omitted).
Where the evidence shows that the officers acts were merely negligent, there is no
6

A 1983 claim of false imprisonment also requires a showing of facts setting out
a prima facie claim for false imprisonment under state law. For the reasons set
forth in section IV(a), Plaintiffs Complaint fails to do so, and for this reason
Defendants motion should be granted.
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Fourteenth Amendment claim. Id. at 1328 (citing West at 1327).

Here, the

Complaint fails to show that the Officers acted with deliberate indifference with
respect to Plaintiffs due process rights or that he had a clearly established right
violated under the Fourteenth Amendment.
a. The Officers had no post-arrest contact with Plaintiff, or information
to reasonably believe that any further investigation was necessary
until April 2013.
As set forth above, the Officers neither saw nor spoke with Plaintiff during
their October trip to Atlanta, and they had no information to suggest any further
investigation as to Plaintiffs involvement in the murder of Ms. Ramsey was
necessary until April 2013. But for the September trip where Plaintiff claims he
said he had never been to New Jersey, the Officers had not spoken with anyone
who told them that Plaintiff was repeatedly declaring his innocence or had
evidence to corroborate his whereabouts the night of the murder. (Hadley Aff.,
20; McEnroe Aff., 25).7 The Complaint fails to allege that Plaintiff was in the
custody of the Officers while held in Atlanta.

Thus, even if Plaintiff did have

Plaintiff claims that McEnroe (not Hadley) took custody of Plaintiff and
extradited him to New Jersey in November 2012. (Complaint, 83). This is untrue
as McEnroe did not return to Atlanta after October 2012 and was not on the plane
with Plaintiff. (McEnroe Aff., 22). All of the allegations against McEnroe
regarding the activities that took place on the plane are false as the Officers never
took custody of Plaintiff. (McEnroe Aff., 22; Hadley Aff., 18).
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some type of printout from his employer when he turned himself in to local
officers, as he alleges, it is irrelevant as neither Hadley nor McEnroe knew about it.
Similarly, if Plaintiff protested his innocence while in custody in New Jersey, it
is insufficient to establish a Fourteenth Amendment violation as the Officers were
unaware of these statements. (Hadley Aff., 20; McEnroe Aff., 25). 8 As such,
there is no evidence of deliberate indifference or the existence of information
which would lead the Officers, or any other reasonable officer, to believe that
further investigation as to Plaintiffs involvement with the murder was necessary.
Even if Plaintiff denied involvement with the murder or claimed his relatives could
vouch for him (as is common by criminal suspects), that alone does not rise to the
level of deliberate indifference. Due process does not require that every
conceivable step be taken, at whatever cost, to eliminate the possibility of
convicting an innocent person. Baker v. McCollan, 443 U.S. 137, 145 (1979).
In April 2013, McEnroe was asked to meet with the Assistant Prosecutor to
review records as to Plaintiffs whereabouts the night of the murder. (McEnroe
Aff., 24). After they saw the records, they returned to Atlanta to verify their
reliability and found them to be accurate. (Id. at 26). Prior to this time, the
Officers had no reason to believe that further investigation as to Plaintiffs
Plaintiffs Complaint does not allege that Hadley participated in any of these
alleged communications.
8

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involvement was necessary. (Id. at 25; Hadley Aff., 20).

Plaintiff was

released from jail on April 20, 2013. (Complaint, 103). The Officers were not
present when he was released. (McEnroe Aff., 28; Hadley Aff., 23).
IV.

Plaintiffs State Law Claims should be Dismissed.

Counts III and IV for false imprisonment and malicious prosecution should

be dismissed because Plaintiffs arrest and detention were effectuated pursuant to

procedurally valid process; there was probable cause for his arrest; and there is no
evidence that the Officers acted with actual malice or an intent to injure Plaintiff to
warrant exemption from official immunity protection.
This case is not unique. Georgia case law is replete where similar claims
have been levied against officers who while in the performance of their duties
effectuated lawful arrests that ultimately resulted in discharge or exoneration of the
accused. Equally, there is a plethora of Georgia legal authority where courts have
rejected such claims outright for failure of the plaintiffs to meet their legal burden.
Plaintiffs state law claims against the Officers are no different than the
countless similar claims that have come before his and have died on the sword. In
fact, the court in Franklin v. Consolidated Govnt of Columbus, 236 Ga.App.468,
512 S.E.2d 352 (Ga. App. 1999) addressed the legal issues raised by Plaintiff here,
on extraordinarily similar facts with identical claims.

In Franklin, the court

dismissed the false arrest and malicious prosecution claims of a plaintiff who was
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arrested pursuant to an arrest warrant, failed to show a lack of probable cause for
his arrest and actual malice on the part of the arresting officer. Id. The Franklin
case shows precisely why Plaintiffs false imprisonment and malicious prosecution
claims should suffer the same fate.
a. The false imprisonment claim fails as a matter of law.
In Franklin, the victim was robbed while walking into a bank. The
investigating detective obtained a description of the robber from the victim.
Another officer interviewed a fifth witness, a store clerk, who stated that a man
with a similar description to the robber, hurriedly entered the store holding a gun
about an hour before the robbery and the man acted nervous and appeared to be
trying to avoid the stores video camera. Id. at 468.
Two days later, the officer responded to a report of a man acting strange
and talking crazy in a health club. The health club employees description of the
man was similar to that of the suspicious male who was in the convenience store
shortly before the robbery. Id. at 468-469. Based on this, officers presented a
photo line-up to the robbery victim and the witnesses. Three of the witnesses could
not identify the robber, who wore a mask during the robbery, while the victim and
one witness identified Franklin based on the shape of his face and profile.

The

store clerk also identified Franklin as the man who entered the store right before
the robbery with a handgun under his shirt. Id. at 469.
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Based on the identifications, the investigating officer obtained an arrest

warrant for Franklin in December 1994 for aggravated assault and armed robbery.
In the summer of 1995, Franklins attorney notified the assistant district attorney
about records from Western Union which might affect the case. In October 1995,
Western Union produced documents relating to Franklins alibi, but they did not
establish an alibi for Franklin. In January 1996, Franklins attorney gave the
assistant district attorney the first substantial evidence supporting Franklins alibi.
Four days later, the State entered a nolle prosequi. Id. at 469.
Franklin sued the city and the arresting officer for, inter alia, false arrest and
imprisonment, malicious prosecution and violations of 1983, claiming there was
no probable cause to arrest him. The appellate court affirmed the trial courts grant
of summary judgment to the defendants. Id. at 468-469.
The court in Franklin disposed of the false imprisonment claim on the basis
of the existence of the arrest warrant. Id. at 470-471. The Court expressly noted:
Franklin has no claim for false imprisonment. . .because [w]hen the
detention is predicated upon procedurally valid process, false imprisonment
is not an available remedy, regardless of the motives upon which the
process was secured, because detention effectuated pursuant to
procedurally valid process, such as an arrest warrant, is not unlawful.
Where the arrest is by valid process regularly sued out, action for malicious
prosecution is the only remedy.
Id. at 470 (citing Williams v. Smith, 179 Ga.App. 712, 714, 348 S.E.2d 50 (1986));
see also O.C.G.A. 51-7-20.
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Here, Plaintiffs claim of false imprisonment should be dismissed as

Plaintiffs arrest and detention, like Franklins, were effectuated pursuant to an
arrest warrant or procedurally valid process. See also Williams, at 714. There is no
dispute here that Plaintiffs arrest and detention were made pursuant to an arrest
warrant. (Complaint, 55).

While McEnroe did not effectuate the arrest

personally, Plaintiff voluntarily turned himself in and was arrested pursuant to a

warrant and detained. (Complaint, 77, 82).
Taking the allegations in the Complaint as true, Plaintiff has failed to state a
claim upon which relief can be granted for false imprisonment because where an
arrest is by valid process an action for malicious prosecution is the only remedy.
O.C.G.A. 51-7-40; See Franklin, supra.
b. The malicious prosecution claim also fails as a matter of law.
To advance a valid claim for malicious prosecution, a plaintiff must show
prosecution for a criminal offense, instigated without probable cause, with malice,
under a valid warrant, accusation or summons, which has terminated favorably to
plaintiff, and damages. Barnette v. Coastal Hematology & Oncology, P.C., 294
Ga. App. 73, 670 S.E.2d 217, 220 (Ga. App. 2008) citing Wal-Mart Stores v.
Blackford, 264 Ga. 612, 613, 449 S.E.2d 293 (1994).
In Georgia, public agents are immune from liability for their discretionary
acts unless they are done with malice or intent to injure. Marshall v. Browning, 310
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Ga.App. 64, 67, 712 S.E.2d 71, 74 (Ga. App. 2011).

The doctrine of official or

qualified immunity protects officers from personal liability for discretionary

actions taken within the scope of their official authority, and done without
willfulness, malice, or corruption. Id.
The courts initial inquiry on a malicious prosecution claim against public
officers is not whether they acted maliciously [for purposes of the tort of malicious
prosecution], but whether they acted with actual malice. Marshall, supra. Malice
can be inferred by a total lack of probable cause. Id. A lack of probable cause exists
when the circumstances are such as to satisfy a reasonable man that the accuser
had no ground for proceeding but his desire to injure the accused. O.C.G.A. 51-73; See also Franklin, supra. The facts and circumstances which amount to probable
cause is a pure question of law. Id. at 470.
1. McEnroe had probable cause for the warrant and arrest of Plaintiff.
The Franklin court rejected the false arrest and malicious prosecution claims
as there was no evidence tending to show a lack of probable cause or malice in
connection with the arrest and imprisonment. Id. To the contrary, the court found
probable cause to arrest the defendant based on the witness descriptions, that he
was identified from a photo line-up, and the victim identified him by his profile
and shape of his face, even though he wore a stocking over his face. Id. at 470.

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Here, McEnroe had probable cause to seek the arrest warrant for Plaintiff.
He uncovered evidence linking Plaintiff to the Doll House and to Ms. Ramsey on
the night she disappeared. Witnesses identified Plaintiff as one of the men who
had a dispute with Ms. Ramsey over money and who threatened to kill people in
the bar. (Complaint, 20, 21, 27). Witnesses reported that one of the men bragged
about beating a murder rap in Atlanta, which in fact Plaintiff did. (Id. at 22).
Ms. Hamilton stated she saw Ms. Ramsey get into a car with Plaintiff the night she
disappeared. (Arrest Aff., 9). Ms. Jones picked Plaintiff out a photo array as
one of the two men seen together arguing with Ms. Ramsey and threatening to kill
people in the club if he did not get his money back. (Complaint, 27).
Even more telling, evidence tied Plaintiff to the killer, J. Jones, as coworkers
reported that Plaintiff and J. Jones were together with Ms. Ramsey the night she
disappeared, both had a dispute with her over money; and one threatened to kill her
and patrons if their money was not returned. (Id. at 20, 23). Ms. Jones identified
Plaintiff as the other man together with the killer, J. Jones, the night Ms. Ramsey
disappeared. (Id. at 23, 27; Arrest Aff., 9). Ms. Hamilton stated that she saw
Ms. Ramsey leaving work with Plaintiff and J. Jones. (Arrest Aff., 9). Finally, J.
Jones DNA was a match for DNA found under Ms. Ramseys fingernails, and on
the sweatshirt wrapped around her body. (Complaint, 53).

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Much like in Franklin, at the heart of McEnroes investigation rests the

eyewitness accounts and positive identification of Plaintiff. The fact that it was later
learned that the witness i.d.s of Plaintiff (and Franklin) were incorrect does not
mean that probable cause did not exist at the time of the investigation, nor does
McEnroes reliance on the mistaken i.d.s in seeking an arrest warrant indicate
malice or a motivation to harm Plaintiff. See Todd v. Kelly, 244 Ga. App. 404,
407(1), 535 S.E.2d 540 (Ga. App. 2000) (where an officers decision to seek
warrants might be characterized as misguided there nevertheless was no evidence
that the actions were taken with actual malice for purposes of official immunity).
2. The Officers did not act with any malice at any time and Plaintiff
can produce no evidence tending to show otherwise.
For purposes of official immunity, a showing of actual malice is required on
a claim of malicious prosecution. Taylor v. Waldo, 309 Ga. App. 108, 111(2), 709
S.E.2d 278 (Ga. App. 2011). Actual malice requires a deliberate intention to do
wrong, and denotes express malice or malice in fact. Marshall, supra. Actual
malice does not include implied malice, or the reckless disregard for the rights and
safety of others. A deliberate intention to do wrong to constitute the actual malice
necessary to overcome official immunity must be the intent to cause the harm
suffered by the plaintiff. Id. Marshall v. Browning, Id. citing Selvy v. Morrison,
292 Ga. App. 702, 704-705, 665 S.E.2d 401 (2008).
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Applying the above standard, the court in Franklin denied the plaintiffs
malicious prosecution claim finding no evidence tending to show that the detective
acted with malice in applying for an arrest warrant for Franklin. Franklin, 236
Ga. App. at 471. ([T]he law does not presume malice or animus against an officer
merely because in the discharge of his legal functions, he does an illegal act.
Pinkston v. City of Albany, 196 Ga. App. 43, 46, 395 S.E.2d 587 (1990)).
The same conclusion reached in Franklin is authorized here. McEnroes
belief of the various eyewitnesses who identified Plaintiff as the man they saw with
J. Jones and the victim the night she disappeared, and his decision to pursue an
arrest warrant for Plaintiff on the information he had - no matter how imperfect - is
not sufficient to show actual malice for purposes of official immunity exemption.
In an obvious attempt to repair this deficiency, Plaintiff has asserted a whole
host of false accusations in his Complaint to create the appearance of some
personal animus on the part of McEnroe. Yet McEnroe did not commit (nor could
not have committed) any of the acts alleged to have occurred after Plaintiffs DNA
was obtained in September 2012 because McEnroe never saw or communicated
with Plaintiff again after that date. (McEnroe Aff., 21). That means McEnroe did
not arrest, talk to, take custody of, extradite, accompany, book, jail, release, or
doing anything else with Plaintiff after the one time he actually saw him on
September 27, 2012. (McEnroe Aff., 20-23, 28). Therefore, there is nothing here
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tending to show a deliberate intention by McEnroe to do wrong to Plaintiff or to

cause specific harm to Plaintiff to constitute the actual malice necessary to
overcome McEnroes official immunity protection.
As for Hadley, his only involvement consisted of showing a photo line-up to
witness, Jasmine Jones and accompanying McEnroe to Georgia to collect DNA
samples and to serve the arrest warrants since he had grown up in Georgia and
could help navigate the area and provide additional help if needed. (Hadley Aff.,
5-7). Otherwise, Hadley had no involvement whatsoever in the investigation of
Ms. Ramseys death and he did not participate in the decision to seek the arrest
warrant for the Plaintiff. (Hadley Affidavit, 5, 6, 10,11,13).
Accordingly, it certainly cannot be found or even reasonably stated that
Hadleys limited actions were driven by his desire to do Plaintiff harm to constitute
actual malice and thereby exempt himself from official immunity protection.
Absent malice or intent to injure on the part of a law enforcement officer, no
liability attaches to the officers exercise of his lawful discretion. Marshall, 310
Ga.App. at 69.
V.

Venue is Improper in this Court.

As there is no special venue provision for claims brought under 42 1983,

the general venue statute of 28 U.S.C. 1391(b) controls. Jones v. Bales, 58

F.R.D. 453 (N.D. Ga. 1972). The relevant part of 28 U.S.C. 1391(b )(1) provides
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that venue is proper where a substantial part of the events or omissions giving rise
to the claim occurred.
Here, dismissal is warranted because venue is proper in New Jersey, where a
substantial part of the claims which form the basis of the Complaint took place.
The Officers reside in New Jersey and are New Jersey law enforcement officers.
(Complaint, 4,5,7,8). The murder of Ms. Ramsey and the ensuing investigation
occurred in New Jersey. (See Complaint). The entire investigation file is in New
Jersey. All but one of the witnesses interviewed as part of the investigation took
place in New Jersey. (Complaint, 19, 30, 31, 33). The Arrest Affidavit, which is
the gravamen of the Complaint, was executed in New Jersey and presented to a
New Jersey Court. (See Arrest Affidavit). The man that Plaintiff alleges the
Officers should have investigated further, Brian Love, lived in New Jersey until
Ms. Ramsey disappeared. (Id. at 30). Search warrants for J. Jones and Loves
apartment in New Jersey were issued by a New Jersey court. (Id. at 33). The
DNA samples of Plaintiff were analyzed in New Jersey. (Id.). The New Jersey
investigation did lead Officer McEnroe to Georgia, but the Officers had two short
visits here prior to Plaintiffs arrest, one in September in connection with the DNA
swabs, and one in October in connection with the arrest warrants, and that trip
resulted in no contact with Plaintiff. Other than that, none of the investigation or

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other relevant activities leading up to Plaintiffs arrest and detention took place in
Georgia.
Plaintiff was detained in Georgia when he turned himself over to local
authorities on October 25, 2012, but he remained here until November 28, 2012
when he was extradited to New Jersey. (Id. at 77, 83). The remaining five
months of his alleged improper detention occurred in New Jersey.

As

substantial part of the events giving rise to the claims took place in New Jersey, the
Complaint should be dismissed. (Accord, Miles v. Chicago Police Dept., No. 00CV-72782, 2000 WL 1279191 (E.D. Mich. Aug. 21, 2000) (venue improper in
false arrest/malicious prosecution claim); Clayton v. Prudential Ins. Co. of Amer.,
554 F. Supp. 628 (S.D. Tex. 1982) (venue in Texas where indictment, criminal trial
and related records were kept, witness with relevant knowledge in Texas, and a
substantial amount of the investigatory conversation occurred in Texas).
CONCLUSION
For the foregoing reasons, the Officers request that the case be dismissed.
_/s/ Tracey Blackwell____________
Tracey Blackwell
Georgia Bar No. 732752
Marlo Orlin Leach
Georgia Bar No. 442216
GONZALEZ SAGGIO & HARLAN LLP
3353 Peachtree Road NE, Suite 920
Atlanta, GA 30326
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Telephone: (404) 869-1545

Facsimile: (404) 842-1722
Attorneys for Officers McEnroe and Hadley

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CERTIFICATION OF COMPLIANCE
The undersigned counsel hereby certifies in accordance with Local Rule
7.1D that this brief has been prepared in Times New Roman 14 point font in
accordance with Local Rule 5.1(C).

GONZALEZ SAGGIO & HARLAN LLP

/s/Marlo Orlin Leach_
Marlo Orlin Leach
Georgia Bar No. 442216
Marlo_Leach@gshllp.com
3353 Peachtree Road NE, Suite 920
Atlanta, GA 30326
Telephone: (404) 869-1545
Facsimile: (404) 842-1722

Case 1:14-cv-03874-ELR Document 6-1 Filed 12/29/14 Page 28 of 28

CERTIFICATE OF SERVICE
I hereby certify that on December 29, 2014, a copy of this pleading was
electronically filed with the Clerk of Court by using the CM/ECF system which
will send a notice of electronic filing to all counsel of record and by U.S. Mail.

GONZALEZ, SAGGIO & HARLAN LLP

/s/ Tracey Blackwell_________________
Tracey Blackwell
Georgia Bar No. 732752
tracey_blackwell@gshllp.com
3353 Peachtree Road NE, Suite 920
Atlanta, GA 30326
Telephone: (404) 869-1545
Facsimile: (404) 842-1722
Attorneys for Defendants JOSEPH HADLEY
AND JAMES McENROE