MEMORANDUM OF LAW

TO: Judge Jones

FROM: Patrick Sutton
DATE: Monday, August 7, 2005
RE: Lee v. Burke, Edwards, and Stapleton, SU-04-CV-1409-J, Defendants Burke and Edwards
Motion for Summary Judgment.
_______________________________________________________________________________
___________________________________________________________________________________________________________________

Questions Presented

1. DEFENDANTS BURKE AND EDWARDS MAY NOT BE LIABLE IN A 42 U.S.C. §1983

RESPONDEAT SUPERIOR OR SUPERVISORY LIABILITY CLAIM.

2. DEFENDANTS BURKE AND EDWARDS MAY NOT BE LIABLE IN A 42 U.S.C. §1983

CLAIM.

3. DEFENDANTS BURKE AND EDWARDS MAY NOT BE LIABLE IN THEIR OFFICIAL

CAPACITY FROM PLAINTIFF SMITH’S STATE LAW CLAIM UNDER THE DOCTRINE
OF SOVEREIGN IMMUNITY.

4. DEFENDANTS BURKE AND EDWARDS MAY NOT BE ENTITLED TO QUALIFIED

IMMUNITY IN PLAINTIFF SMITH’S STATE LAW CLAIMS.

5. PLAINTIFF MAY NOT PREVAIL ON A GENERAL RESPONDEAT SUPERIOR STATE

TORT CLAIM.

6. PLAINTIFF MAY NOT PREVAIL ON A GENERAL NEGLIGENCE CLAIM AS A

CRIMINAL ACT BY A THIRD PARTY ABSOLVES A DEFENDANT WHO MAY HAVE
OTHERWISE BEEN LIABLE.

7. PLAINTIFF MAY NOT PREVAIL ON A 8TH AMENDMENT CLAIM OF CRUEL AND

UNUSUAL PUNISHMENT.

8. PERSONAL RECOMMENDATIONS
 Statement of Facts

On June 4, 2004, officers removed Plaintiff Lee D. Smith from his cell in Athens-Clarke

County Jail because he got into a fight with another inmate, Charles Williams. Smith had property in

the cell and asked officers to retrieve it, but the property was never recovered. Smith alleges when he

complained about his property, Officer Walker and Officer Dorsey stopped Smith in the hallway and

assaulted him. Smith alleges that Dorsey grabbed Smith around the neck while officer Walker

grabbed Smith by the lower arm by the cuffs and pushed him into the wall, which caused Smith to

hit his elbow on the wall. Smith further alleges both officers picked him up by the same injured arm

and his neck and pushed Smith up against the wall to the ceiling. Smith was then taken to booking

and placed into a cell. Smith requested to go to the nurse to Lieutenant Winfield where pictures were

taken of Smith’s neck and arm. About thirty minutes later, Officer Stapleton told Smith to move to

the CC. Smith complained his arm was still hurting and Smith claims Officer Stapleton told Smith

“to get his ass up.” When Smith did not move, Smith alleges Stapleton hit Smith across the jaw with

his fist at which time Sergeant Harper stopped Stapleton from hitting Smith again. Smith claims that

cameras in the jail should have recorded the initial alleged assault.

On June 23, 2004, Smith filled out an Inmate Form for Civil Action that was notarized. On

July 9, 2004, Judge Jones ordered Smith to be allowed to proceed in his complaint in Forma

Pauperis. On July 12, 2004, the Inmate Form was filed with the Athens–Clarke County Superior

Court claiming Captain A. Burke, Sheriff Ira Edwards, Lieutenant Winfield, and Deputies Chris

Stapleton, Walker, and Dorsey as defendants. Smith is suing for one million dollars from each

defendant for actual damages, one million dollars from each defendant for punitive damages, and

one million dollars from each defendant for pain and suffering. As of this date, July 13, 2005,

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Winfield, Stapleton, Walker, and Dorsey have not been served of Smith’s civil lawsuit.

On May 31, 2005, Defendants Burke and Edwards filed a motion for summary judgment

claiming that there are no genuine issues as to any material fact and that the undisputed facts

preclude Burke and Edwards from liability. Burke is the commander of the jail and Sheriff Edwards

issued certain policies and procedures, including a Response to Resistance/Aggression policy

(“Policy”) that governs the conduct of deputy sheriffs and other employees of the sheriff’s

department on January 9, 2002. Defendants claim that neither Burke nor Edwards have had any

contact with Smith, neither was present during the alleged incidents, nor issued direct orders

pertaining to the alleged incidents. Defendants believe that Smith has failed to allege anything that

the Defendants may have done to harm Smith. Defendants deny any personal knowledge of any of

the matters Smith complains. Defendants also deny any notice of any kind that any of the officers

mentioned by Smith would engage in any behavior about which Smith complains. Defendants

concede, if the facts Plaintiff Smith complains of are true, the deputies’ actions would have violated

the Response to Resistance/ Aggression policy of the sheriff’s department and the jail.

Because Plaintiff has not fully articulated his legal claims, the Defendants raise many

potential legal issues that could have been raised if Smith had raised specific legal claims.

Defendants argue that Edwards is precluded from liability from any 42 U.S.C. §1983 claims, that

Edwards and Burke have no supervisory liability under §1983, that Edwards and Burke are entitled

to qualified immunity on any §1983 claims, that Plaintiff’s state law claims against Edwards in his

official capacity are barred by the doctrine of sovereign immunity, and that the individual defendants

enjoy official immunity from liability on Plaintiff’s state law claims.

Neither party requested oral argument at this time.

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 Discussion

To prevail in a summary judgment motion, the “moving party must demonstrate that there is

no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to

the nonmoving party, warrant judgment as a matter of law.” O.C.G.A. §9-11-56(c); Lau’s

Corporation, Inc. v. Haskins, 261 Ga. 491 (1991). “A defendant may do this by showing the court

that the documents, affidavits, depositions and other evidence in the record reveal that there is no

evidence sufficient to create a jury issue on at least on essential element of plaintiff’s claim.” Lau’s

Corporation, Inc., 261 Ga. at 491. We view the evidence and all reasonable inferences drawn from it

in the light most favorable to the nonmovant. Supchak v. Pruitt, 232 Ga. App. 680, 682(1), (1998).

There are two methods a defendant may move for summary judgment, affirmatively disproving at

least one essential element of nonmoving party’s case, or pointing out an absence of evidence to

support at least one essential element of nonmoving party’s case. Caven v. Warehouse Home

Furnishings Distr., 209 Ga. App. 706 (1993). The defendant does not need to affirmatively disprove

the plaintiff's case, but may prevail simply by pointing to the lack of evidence. If the defendant does

so, the “plaintiff cannot rest on his pleadings, but must point to specific evidence that gives rise to a

triable issue of fact.” Upshaw v. Roberts Timber Co., 266 Ga. App. 135 (2004).

42 U.S.C. §1983 claims have a more specific requirement in a motion for summary

judgment. “To survive summary judgment in a §1983 action, a plaintiff must demonstrate the

existence of genuine issues of material fact showing that the defendant’s acts or omissions,

performed under color of state law, resulted in a deprivation of a right, privilege, or immunity

protected by the United States Constitution or the laws of the United States.” 42 U.S.C. §1983

(1996); Means v. City of Atlanta Police Department., 273 Ga. App. 700 (2003).

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 1. DEFENDANTS BURKE AND EDWARDS MAY NOT BE LIABLE IN A 42
U.S.C. §1983 RESPONDEAT SUPERIOR OR SUPERVISORY LIABILITY
CLAIM.

A lawsuit against a county employee in his/her official capacity is a lawsuit against the

government entity. The Supreme Court has held that “local governments can be sued under §1983,

necessarily decides that local government officials sued in their official capacities are “persons”

under §1983 in those cases in which, as here, a local government would be suable in its own name.”

Monell v. Dep’t of Social Services of the City of New York, 436 U.S. 658, 690 (1978) [hereinafter

Monell]. The Court reasoned, “Congress did intend municipalities and other local government units

to be included among those “persons” to whom §1983 applies.” Monell, 436 U.S. at 690. Thus,

Plaintiff’s lawsuit against Defendants is a lawsuit against Athens-Clarke County and the County is

considered a person who may be subjected to liability in this lawsuit.

Establishing a municipality may be sued under §1983, it must be determined when a

municipality may be liable. “Nothing in the history of §1988, a statute designed to make effective

the remedies created in §1983 and similar statutes, suggests that fee liability, unlike merits liability,

was intended to be imposed on a respondeat superior basis.” Kentucky v. Graham, 473 U.S. 159,

168 (1985). In a decision three years later, the Supreme Court held “that a municipality cannot be

held liable [for violation of civil rights] solely because employee is a tort-feasor--or, in other words,

a municipality cannot be held liable under §1983 on a respondeat superior theory.” Monell, supra, at

691; Cuesta v. School Bd. of Miami-Dade County, Florida, 285 F.3d 962, 966 (11th Cir. 2002)

(holding a local government may not be sued under §1983 for an injury inflicted solely by its

employees or agents). The Court concluded that a “local government may not be sued under §1983

for an injury inflicted solely by its employees or agents.” Monell, supra, at 694. Georgia holds a

similar standard codified under O.C.G.A. §36-33-3.

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 Under the Official Code of Georgia Annotated, “civil rights statutes imposing liability for

deprivation of constitutional rights by a defendant acting under color of state law or custom is not [a]

federally imposed doctrine of respondeat superior, and [a] municipality may not be held liable

thereunder solely on negligence or respondeat superior theories.” O.C.G.A. §36-33-3 (2005); Const.

Art. 1, §2, Par. 9 (1990); 42 U.S.C. §1983 (1996); City of Cave Springs v. Mason, 252 Ga. 3 (1984).

Thus, Plaintiff Smith may not sue Defendants Burke and Edwards, and in effect Athens-Clarke

County, solely under a 42 U.S.C. §1983 respondeat superior claim.

In addition, supervisory officials are not liable under §1983 “for the unconstitutional acts of

their subordinates ‘on the basis of respondeat superior or vicarious liability.’” Hartley v. Parnell,

193 F.3d 1263, 1269 (11th Cir. 1999); quoting Belcher v. City of Foley, 30 F.3d 1390, 1396 (11th

Cir. 1994). However, the supervisor may be found liable if either the supervisor “personally

participates in the alleged constitutional violation or when there is a causal connection between

actions of the supervising official and the alleged constitutional deprivation.” Hartley, 193 F.3d at

1269. The causal connection may be established and supervisory liability imposed where the

supervisor’s improper “custom or policy…results in deliberate indifference to constitutional rights.”

Hartley, 193 F.3d at 1269; see Rivas v. Freeman, 940 F.2d 1491, 1495 (11th Cir. 1991); quoting

Zatler v. Wainwright, 802 F.2d 397 (11th Cir. 1986). In addition, when a “history of widespread

abuse puts a responsible supervisor on notice of the need to correct the alleged deprivation, and he

fails to do so, can establish a causal connection.” Hartley, at 1269. However, to sufficiently notify

the supervising official, the deprivations that constitute widespread abuse “must be obvious, flagrant,

rampant and of continued duration, rather than isolated occurrences.” Id. at 1269; quoting Brown v.

Crawford, 906 F.2d 667, 671 (11th Cir. 1990).

In the present action, Defendants claim they did not personally participate in the removal of

6
Plaintiff Smith from his cell or participate in either of the alleged assaults on Smith. Defendants

argue that even if Smith’s constitutional rights were violated, “such would not represent the

execution of government policy or decision but rather a direct violation of the response to

Resistance/Aggression policy approved by Sheriff Edwards.” Def. Brief at 6. Defendants argue that

there is no causal connection between the government and any violation of Smith’s constitutional

rights. Def. Brief. at 6. Defendants deny they had any notice or indication of any kind that any of the

officers mentioned in Smith’s complaint would engage in any behavior Smith complains. Def.

Exhibit C, para. 4.

Plaintiff does not deny that Defendants Burke and Edwards did not participate in any of the

alleged assaults. However, Plaintiff argues in his Motion to Deny Summary Judgment that Burke is

the “immediate supervisor and should know what is going on.” Pl. Motion at 1. In addition, Plaintiff

argues that “several other inmates also complain about officers[sic] abuse and nothing was [done] by

Captain Burke or Sheriff Edwards. Pl. Motion at 2. Plaintiff believes that “someone should be

accountable for the action of their employees.” Pl. Motion at 2, para. 8.

It is undisputed that neither Defendant personally participated in either alleged assault on

Plaintiff. It is undisputed that the Policy in itself does not violate Plaintiff’s constitutional rights. It is

the alleged violation of the Policy that Plaintiff complains. Therefore, the official Policy itself is not

indifferent to Plaintiff’s rights. Plaintiff complains in the Athens-Clarke County Jail there is a history

of widespread abuse that should have put Defendants on notice that they need to correct alleged

deprivations. According to the Eleventh Circuit Court of Appeals, failure to do so “can establish a

causal connection.” Hartley, at 1269. However, for Defendants to be sufficiently notified, the

deprivations that constitute widespread abuse must be “flagrant, rampant and of continued duration,

rather than isolated occurrences.” Id. at 1269. The issue turns on whether Plaintiff’s assertion that

7
“several other inmates also complain” constitutes a “continued duration” or “isolated occurrences.”

Plaintiff does not submit any evidence, such as other prisoner’s affidavits that amounts to

sworn testimony that supports widespread abuse of prisoners over a continued duration. Plaintiff has

not demonstrated that either Defendant, prior to the alleged assault on Plaintiff, were ever on notice

that their employees may have been violating the Policy and that Defendants needed to correct any

officers’ behaviors that violated the Policy. Plaintiff offers no other evidence other than his own

sworn testimony to support his claim. This is insufficient. A plaintiff may not rest upon his pleadings

but “must point to specific evidence that gives rise to a triable issue of fact.” Upshaw, 266 Ga. App.

at 135. Thus, this Court finds that Defendants Burke and Edwards are not liable under a 42 U.S.C.

§1983 claim of respondeat superior or supervisory liability.

2. DEFENDANTS BURKE AND EDWARDS MAY NOT BE LIABLE IN A 42

U.S.C. §1983 CLAIM.

A municipal body that is sued under the Civil Rights Act of 1871 is not entitled to an

absolute immunity. Monell, supra, at 701. “Local governing bodies, therefore, can be sued directly

under §1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged

to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision

officially adopted and promulgated by that body’s officers.” Id. at 690-91. Local government bodies

may be “liable under §1983 when execution of a government’s policy or custom, whether made by

its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts

the injury.” Cuesta v. Sch. Bd. of Miami-Dade County, Florida, 285 F.3d 962, 966 (11th Cir. 2002)

[hereinafter Cuesta]; citing Monell, supra, at 694. Therefore, for Plaintiff to prevail under a 42

U.S.C. claim, Plaintiff must show that the Policy itself inflicted the injury and not by the alleged

negligent or indifferent acts or omissions of Defendants.

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 A plaintiff can establish §1983 liability by identifying that he has been deprived of

constitutional rights by either an express policy or a “widespread practice that, although not

authorized by written law or express municipal policy, is so permanent and well settled as to

constitute a custom and usage with the force of law.” Cuesta, 285 F.3d at 966; see also Brown v.

City of Fort Lauderdale, 923 F.2d 1474, 1482 (11th Cir. 1991); quoting City of St. Louis v.

Praprotnik, 485 U.S. 112, 123 (1988). In a §1983 action, the plaintiff “bears the burden of persuasion

of every element.” Cuesta, supra, at 670; see Miller v. Taylor, 877 F.2d 469, 472 (6th Cir. 1989)

(holding plaintiff in 1983 action excessive force action had burden of proving that force was

excessive); see also Edwards v. Philadelphia, 860 F.2d 568, 572 (3d Cir. 1988) (finding prisoner

alleging 8th Amendment violation bore burden of proving every element, including that the guard

acted without justification). In addition, the Court believed that a plaintiff “must demonstrate a

causal link between the municipal action and the deprivation of federal rights.” Cuesta, supra, at

967; see Bd. of the County Comm’rs v. Brown, 528 U.S. 397, 404 (1997). If plaintiff fails to

produce any evidence indicating an allegation, then the plaintiff’s claim “must fail as a matter of

law.” Cuesta, supra, at 970-71.

We begin with the language of §1983 as originally passed:

"[A]ny person who, under color of any law, statute, ordinance, regulation, custom, or
usage of any State, shall subject, or cause to be subjected, any person . . . to the
deprivation of any rights, privileges, or immunities secured by the Constitution of the
United States, shall, any such law, statute, ordinance, regulation, custom, or usage of
the State to the contrary notwithstanding, be liable to the party injured in any action at
law, suit in equity, or other proper proceeding for redress . . . ." 17 Stat. 13. (emphasis
added). Monell, supra, at 691-92.

In Monell, the Court reasoned that the italicized language plainly imposes liability on a government

that, under color of some official policy, "causes" an employee to violate another's constitutional

rights. Monell, supra, at 692. “Congress included customs and usages [in §1983] because of the

9
persistent and widespread discriminatory practices of state officials…although not authorized by

written law, such practices of state officials could well be so permanent and well settled as to

constitute a ‘custom or usage’ with the force of law.” Id. at 691. When execution of a government’s

policy or custom, whether made by lawmakers or by those whose edicts or acts may fairly be said to

represent official policy, inflicts the injury that the government as an entity is responsible under

§1983.” Id. at 694. It is not sufficient for a government body’s policy to be tangentially related to a

constitutional deprivation. Cuesta, supra, at 967. Therefore, the “official policy or custom must be

the moving force of the constitutional violation in order to establish liability of a government body

under §1983.” Id., at 967; Gilmore v. City of Atlanta, Ga., 737 F.2d 894, 901 (11th Cir. 1984).

Proof of a single incident of unconstitutional activity is not sufficient to impose liability under

Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional

municipal policy, which policy can be attributed to a municipal policymaker. City of Oklahoma v.

Tuttle, 471 US 801, 823-24 (1985); Bell v. City of Albany, 219 Ga. App. 371 (1993). Otherwise the

existence of the unconstitutional policy, and its origin, must be separately proved. Tuttle, 471 U.S. at

824. But where the “policy relied upon is not itself unconstitutional, considerably more proof than

the single incident will be necessary in every case to establish both the requisite fault on the part of

the municipality and the causal connection between the ‘policy’ and the constitutional deprivation.”

Id. at 824. A municipal "policy" that might lead to "police misconduct" is hardly sufficient to satisfy

Monell's requirement that the particular policy be the "moving force" behind a constitutional

violation. Id. at 824(8). The discussion of the origins of Monell's "policy or custom" requirement

was “intended to prevent the imposition of municipal liability under circumstances where no wrong

could be ascribed to municipal decision-makers.” Id. at 821. To compel liability under those

situations “would be to impose it simply because the municipality hired one ‘bad apple.’" Id. at 821.

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 Georgia courts have held a similar standard to find a municipal liable for policies enacted by

its officers. “In some instances a single decision by municipal policymakers, or a single

implementation of a municipal policy or custom by a municipal employee, may be sufficient to

establish that a municipal policy or custom caused the alleged deprivation, but municipal liability

may not be imposed pursuant to 42 U.S.C. §1983 for a single incident of unconstitutional conduct by

a municipal employee without proof that the conduct taken pursuant to a municipal policy or

custom.” Bell, 210 Ga. App. at 373; see Dupree v. Thomas County, 46 F. Supp. 2d 1372 (M.D. Ga.

1998) (holding a Georgia sheriff’s department and county were immune from suit for “alleged use of

excessive force absent evidence of any policy or practice which resulted in plaintiff's harm”).

In the present action, Defendants argue the government policy “can be derived through

consideration of the Response to Resistance/Aggression policy approved by Sheriff Edwards, which

governs the conduct of deputy sheriffs and other employees of the sheriff’s department.” Def. Brief

at 5-6. Defendants further contend even if Plaintiff Smith’s constitutional rights were violated, such

a violation “would not represent the execution of government policy or decision but rather a direct

violation of the Response to Resistance/Aggression policy approved by Sheriff Edwards in January

2002.” Def. Brief at 6. Therefore, defendants argue there is “no causal connection between the

government and any violation of Plaintiff’s rights. Defendants conclude, “there is not a shred of

evidence in this record which tends to show any ‘custom’, which led to the alleged violation of

Plaintiff’s constitutional rights.” Def. Brief at 6-7.

Plaintiff concedes that Sheriff Edwards did issue “policies and procedures to govern the

conduct of deputy sheriffs and other employees of the sheriff department.” Pl. Motion at 2.

However, it remains Plaintiff’s contention that “several other inmates also complain about officers

abuse and nothing was [done] by [Defendants] Captain Burke or [by] Sheriff Edwards.” Pl. Motion

11
at 2. Plaintiff does not argue whether or not the official Response to Resistance/Aggression violates

his constitutional rights, but that the customs and practices that are actually occurring by officers and

supervisors in Athens-Clarke County Jail violated his constitutional rights. Pl. Civil Action Form at

3, paras.11-12; and Pl. Civil Action Form at 4-5, paras. 17-18; and Pl. Motion at 2.

In order to be granted a motion for summary judgment, Defendants have to concede that the

assaults occurred and that there may be another policy being followed by officers and supervisors

rather than the official Policy that Sheriff Edwards implemented in 2002. Not to do so, would create

a genuine issue of material fact as to how many times these assaults have occurred and to whom or

which policy was the actual policy officers in the Athens-County Jail were implementing. The other

policy “could well be so permanent and well settled as to constitute a ‘custom or usage’ with the

force of law.” Monell, supra, at 691. If Defendants’ other policy represents official policy and

inflicts the injury, than the “government as an entity is responsible under §1983.” Id. at 694. The

other policy “must be the moving force” behind Plaintiff’s constitutional deprivation. Cuesta, supra,

at 967. It is possible that the Athens-Clarke County Jail has another policy that was and may be in

place that may have violated Plaintiff’s constitutional rights. Further, a municipality's failure to

correct constitutionally offensive actions of its police department may rise to level of custom or

policy, for if a municipality tacitly authorizes actions or displays deliberate indifference towards

police misconduct a municipality can be held liable under §1983. Brooks v. Scheib, 813 F.2d 1191

(11th Cir. 1987). The record is not without a shred of evidence that demonstrates the official Policy

may not have been followed.

Defendants have not submitted any evidence of a filled-out Response to Resistance/Aggression

Report as required by the official Policy. Def. Exhibit B(1) at 9-10, paras. G (3)(b), (3)(d), (3)(e).

Defendants have not submitted any evidence that a supplemental report was filled out as required by

12
the official Policy. Def. Exhibit B(1) at 10-11, paras. G (4)(a)-(g). Defendants have not submitted

any evidence that there was an administrative review as required by the official Policy. Def. Exhibit

B(1) at 11, para. H. Defendants did not even respond to Plaintiff’s assertion that he attempted to

contact Defendants and was ignored. Pl. Motion at 1, para. 3. There is sufficient enough evidence to

demonstrate that in this single incident the official Policy may not have been followed. However, a

single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless

proof of the incident includes proof that it was caused by an existing, unconstitutional municipal

policy and the policy can be attributed to a municipal policymaker. Tuttle, 471 U.S. at 823-24

(1985). It is the latter component that Plaintiff fails to establish to find Defendants liable under a

§1983 claim.

The alleged attacks on Plaintiff and the subsequent administrative response to the attack can be

considered as single event. Plaintiff’s unsupported claim of other prisoners’ abuse is insufficient to

demonstrate multiple events of abuse, as discussed earlier. Plaintiff has not shown, even if another

policy is being implemented, that that policy is attributed to Defendants. Plaintiff offers no evidence

other than a bare assertion that links the other policy as being authorized or implemented by

Defendants. To impose liability under those circumstances would be to impose it simply because the

municipality hired one "bad apple," Monell, supra, at 821, or a couple.

3. DEFENDANTS BURKE AND EDWARDS MAY NOT BE LIABLE IN THEIR

OFFICIAL CAPACITY FROM PLAINTIFF SMITH’S STATE LAW CLAIM
UNDER THE DOCTRINE OF SOVEREIGN IMMUNITY.

In the absence of some waiver of immunity afforded a city for torts committed by its police

officers while engaged in their official duties, there can be no municipal liability for a claim based

on allegedly reckless conduct by police. O.C.G.A. §36-33-3 (2005); Williams v. Soloman, 242 Ga.

13
App. 807 (2000), certiorari granted, aff’d, 274 Ga. 122 (2001). Official functions performed by

officer or public employee, for which official immunity applies in absence of actual malice or intent

to cause injury, is any act performed within an officer's or employee's scope of authority, including

both ministerial and discretionary acts. Gilbert v. Richardson, 264 Ga. 744, 753 (1994); Todd v.

Kelly, 244 Ga.App. 404, 406 (2000). The defense of "official immunity" applies to government

officials and employees sued in their official capacities while shielding acts of government officials

and employees that are discretionary, are done in the course of official duty, and are performed

without willfulness or actual malice, but does not shield acts that are ministerial and performed

negligently. Hazelwood v. Adams, 235 Ga. App. 607, 608-09 (1998) rev’d on other grounds. Thus,

for Plaintiff to overcome Defendants’ official immunity defense, Plaintiff must show that

Defendants acted negligently in their performance of a ministerial duty, Defendants acted with actual

malice toward Plaintiff in their performance of a discretionary duty, or that Athens-Clarke County

waived its sovereign immunity for acts committed by its officers in their performance of an official

duty.

We look to the Georgia Constitution Article 1, § 2, ¶ IX for initial guidance:

(d) Except as specifically provided by the General Assembly in a State Tort Claims
Act, 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 and may be
liable for injuries and damages if they act with actual malice or with actual intent to
cause injury in the performance of their official functions. Except as provided in this
subparagraph, officers and employees of the state or its departments and agencies shall
not be subject to suit or liability, and no judgment shall be entered against them, for the
performance or nonperformance of their official functions. The provisions of this
subparagraph shall not be waived.

(e) Except as specifically provided in this Paragraph, sovereign immunity extends to the
state and all of its departments and agencies. The sovereign immunity of the state and its
departments and agencies can only be waived by an Act of the General Assembly which
specifically provides that sovereign immunity is thereby waived and the extent of such
waiver. Georgia Constitution Article 1, § 2, ¶ IX; Ratified November 6, 1990.

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The test is a “[s]uit against a public officer acting in his or her official capacity will be barred by

official immunity unless the public officer (1) negligently performed a ministerial duty, or (2) acted

with actual malice or an actual intent to cause injury while performing a discretionary duty.” Harper

v. Patterson, 270 Ga. App. 437, 440 (2004). A determination of whether a public official's acts are

ministerial or discretionary, for purposes of determining whether official is immune from suit, “turns

upon the facts of each case.” Woodward v. Laurens County, 265 Ga. 404, 407 (1995); see also

Wanless v. Tatum, 244 Ga. App. 882 (2000). Thus, a public officer or employee may be personally

liable only for ministerial acts negligently performed or discretionary acts performed with malice or

with an intent to injure. Middlebrooks v. Bibb County, 261 Ga. App. 382, 385 (2003).

A ministerial act, for which a public official may not claim immunity, 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” while a discretionary act, for which a public official may not

claim immunity, 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.” Middlebrooks, 261 Ga. App. at 385. While the act of establishing a policy in the first place

is discretionary, the acts of following established policies of inspecting and monitoring are

ministerial tasks, for purposes of determining whether official immunity applies. Phillip v. Walls,

242 Ga. App. 309, 311 (2000). Procedures or instructions adequate to cause an act to become merely

ministerial must be so clear, definite and certain as merely to require the execution of a relatively

simple, specific duty. Middlebrooks, 261 Ga. App. at 385-86. The execution of a specific task is

ministerial even though the manner in which it is accomplished is left to the public employee's

discretion, for purposes of determining whether employee is immune from suit. Wanless, 244 Ga.

App. at 884. Therefore, Plaintiff has to demonstrate both that Defendants were performing a

15
ministerial duty and that Defendants performed this ministerial duty negligently, unless Plaintiff can

show that Defendants acted towards Plaintiff while Defendants performed a discretionary duty.

Official immunity extends to “negligent performance of public employee or officer's

discretionary acts.” Gilbert, 264 Ga. at 753. Public officials are immune from damages that “result

from their performance of discretionary functions, unless those functions were undertaken with

malice or intent to cause injury.” Phillip, 242 Ga. App. at 311. A "discretionary act," for purposes of

official immunity, 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.” Todd, 244 Ga. App. at 406. “One who supervises or monitors another exercises discretion

in so doing, for immunity purposes.” Department of Corrections v. Lamaine, 233 Ga. App. 271, 273

(1998); see also Bontwell v. Dept. of Corrections, 226 Ga. App. 524, 526-27(2) (1997) (prison

official supervising convicts); see also McDay v. City of Atlanta, 204 Ga.App. 621(1) (1992)

(training and supervision of police officers by superiors). The Georgia Court of Appeals has

consistently held that “the operation of a police department, including the degree of training and

supervision to be provided its officers, is a discretionary governmental function of the county as

opposed to a ministerial, proprietary, or administratively routine function.” Harvey v. Nichols, 260

Ga. App. 187, 191 (2003). Therefore, unless Plaintiff can demonstrate that Defendants acted with

actual malice toward Plaintiff, both Defendants will be entitled to official immunity.

Actual malice requires a “deliberate intention to do wrong in context of official immunity and

excludes any liability for injuries and damages if officers and employees act with implied malice in

performance of their official functions.” Merrow v. Hawkins, 266 Ga. 390, 391 (1996). In the

context of official immunity, actual malice means a deliberate intention to do a wrongful act, and

such act may be accomplished with or without ill will and whether or not injury was intended.

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Adams v. Hazelwood, 271 Ga. 414, 415 (1999), rev’d on other grounds. “Ill will alone is insufficient

to show actual malice.” Delong v. Domenici, 2005 WL 418790 (2005). While ill will may be an

element of actual malice in many factual situations, “its presence alone cannot pierce official

immunity; rather, ill will must also be combined with an intent to do something wrong or illegal.”

Hazelwood, 271 Ga. at 415, rev’d on other grounds. For purposes of a claim of official immunity,

"actual intent to cause injury" means an “actual intent to cause harm to the plaintiff, not merely an

intent to do the act purportedly resulting in the claimed injury; this definition contains aspects of

malice, perhaps a wicked or evil motive.” Kidd v. Coates, 271 Ga. 33, 33 (1999).

Sovereign immunity of municipalities has not been waived, except to extent of insurance

purchased or city is self-insured; furthermore, municipality is not liable for torts of policemen during

their discharge of their duties. O.C.G.A. §§33-24-51, 33-24-51(b), 36-33-1(a), 36-33-3; Const. Art.

9, §2, Par. 9. Peeples v. City of Atlanta, 189 Ga. App. 888 (1989). However, municipal corporations

may be liable for a city employee's negligence in performing his or her job to the extent the city has

waived its governmental immunity through the purchase of liability insurance. O.C.G.A. §33-24-51;

Cameron v. Lang, 274 Ga. 122 (2001).

In the instant case, Defendants argue that Plaintiff Smith has “not specified any ministerial

duties which Sheriff Edwards or Captain Burke has allegedly violated.” Def. Brief at 14. Defendants

make abundantly clear that the duty of operating the jail, its supervision, and establishing policies

and procedures are discretionary acts as to which both defendants are entitled to official immunity.

Def. Brief at 14-15. Moreover, Defendants argue that Smith has not offered any proof that either

Defendant harbored malice toward Smith or intended to injure him. Def. Brief at 13. Furthermore,

Defendants argue that Smith “has not and cannot cite any act of the General Assembly which

specifically provides that sovereign immunity is waived and the extent of the waived circumstances

17
in this case.

Plaintiff did not argue against Defendants Burke and Edwards’ entitlement to official

immunity. Plaintiff does make the assertion that “no one is above the law.” Pl. Motion at 1-2, para.

4. However, since Plaintiff did not address specifically whether or not Burke or Edwards are entitled

to official immunity or point to any evidence that Athens-Clarke County has waived sovereign

immunity due to acquiring insurance, we will forge ahead to the analysis of the law. Despite the

Plaintiff not making the requisite finding, the record contains sufficient evidence to proceed with the

analysis.

The issues presented before this Court, is whether Defendants’ actions or inactions constituted

a discretionary or ministerial duty and whether Athens-Clarke County has waived any sections of its

otherwise entitled sovereign immunity. In order to determine which duty to apply, a brief look at the

Response to Resistance/Aggression Policy is necessary. The Response to Resistance/Aggression

policy establishes a six level continuum to respond to prisoners’ aggression. Def. Exhibit B(1),

Appendix A. Also, the policy has a detailed guideline as to the proper procedural guidelines

supervisors are to follow if and when any degree of force results in serious physical injury. Def.

Exhibit B(1), at 8-11. If an officer has to engage in an instance that initiates a Response to

resistance/Aggression, than a supervisor must file a Report stating what happened, who was

involved, take photos, ensure witnesses are identified, and forward the all documentation to a higher

supervisor for review. Def. Exhibit B(1), at 9. The Policy states, “personnel will only use reasonable

force to accomplish their legal objectives,” and that “once the need for force is no longer present, the

continued response to resistance/aggression cannot be justified.” Def. Exhibit B(1) at 1. A strike to

the face would be considered a “higher level of force” than the Level Four Hard Empty Hand

Control, Def. Exhibit B(1), at 18, and in violation of the policy that only allowed for the Level Two

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Soft Empty Hand Control when a prisoner is uncooperative.

Although what appears to be ministerial duties for offers to perform, overwhelming Georgia

Case law, especially in the Court of Appeals, has consistently held that “the operation of a police

department, including the degree of training and supervision to be provided its officers, is a

discretionary governmental function of the county as opposed to a ministerial, proprietary, or

administratively routine function.” Harvey, 260 Ga. App. at 191. Even if this Court should find that

the acts by Defendants were ministerial duties, Plaintiff would have to demonstrate that the acts were

performed negligently. And, as discussed later in this memorandum in section F, a criminal act by a

third party will absolve Defendants of liability for Plaintiff’s claims. Thus, we must look to see if

Defendants acted with malice and an intent to injure Plaintiff.

Plaintiff claims Defendants were unresponsive to his requests to be heard, but even if these

requests were made and Defendants stood idly doing nothing, ill will is not sufficient. Finding no

evidence in the record demonstrating that Defendants acted with malice and an intent to injure

Plaintiff, Defendants may be entitled to official immunity barring a waiver of sovereign immunity by

Athens-Clarke County. Since Plaintiff has presented no evidence that Athens-Clarke County has

waived its sovereign immunity or that Athens-Clarke County has purchased any insurance for

negligent acts committed by its sheriff department, and without any evidence of either, Athens-

Clarke County may not be liable for the torts committed by its employees absent actual malice.

Thus, Defendants Burke and Edwards may be entitled to official immunity.

4. DEFENDANTS BURKE AND EDWARDS MAY NOT BE ENTITLED TO

QUALIFIED IMMUNITY IN PLAINTIFF SMITH’S STATE LAW CLAIMS.

Qualified immunity offers public officers and employees limited protection from suit in their

personal capacity. Middlebrooks v. Bibb County, 261 Ga. App. 382, 385 (2003). The United States

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Supreme Court has held that "government officials performing discretionary functions generally are

shielded from liability for civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known." Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982); see Stough v. Gallagher, 967 F.2d 1523, 1525 (11th Cir.

1992); see also Harvey v. Nichols, 260 Ga.App. 187 (Ga.App. 2003). "If the law was clearly

established, the immunity defense ordinarily should fail, since a reasonably competent public official

should know the law governing his conduct." Harlow, 457 U.S. at 818-19. The test is now called the

"objective reasonableness" standard. Stough, 967 F.2d at 1525. In order for Defendants to attain

qualified immunity, Defendants must show that their conduct does not violate clearly established

statutory or constitutional rights a reasonable person would have known or that the law was not

clearly established.

An appellate court reviewing the denial of the defendant's claim of immunity need not

consider the correctness of the plaintiff's version of the facts, nor even determine whether the

plaintiff's allegations actually state a claim. “All it need determine is a question of law: whether the

legal norms allegedly violated by the defendant were clearly established at the time of the challenged

actions or, in cases where the district court has denied summary judgment for the defendant on the

ground that even under the defendant's version of the facts the defendant's conduct violated clearly

established law, whether the law clearly proscribed the actions the defendant claims he took.”

Courson v. McMillian, 939 F.2d 1479 (11th Cir. 1991); quoting Mitchell v. Forsyth, 472 U.S. 511,

528 (1985). Whether a claimed right "is clearly established is a question of law for the court to

decide." Andreu v. Sapp, 9191 F.2d 637, 641 (11th Cir. 1990).

For a plaintiff to prevail over a defendant’s qualified immunity defense, a plaintiff “must draw

the court’s attention toward a more particularized and fact-specific inquiry…show[ing] that there

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existed sufficient case law establishing the contours of his or her constitutional rights such that the

unlawfulness of the defendant’s conduct would have been apparent to a reasonable official in the

same circumstances…if no such case law exists, then the defendant is entitled to qualified

immunity.” Belcher v. City of Foley, 30 F.3d 1390, 1395 (11th Cir. 1994); Nicholson v. Georgia

Dept. of Human Resources, 918 F.2d 145, 147 (11th Cir. 1990). Plaintiffs must prove the existence

of a clear, factually defined, well-recognized right of which a reasonable police officer should have

known…the right must be sufficiently particularized to put potential defendants on notice that their

conduct probably is unlawful. Belcher, 30 F.3d at 1395; see Barts v. Joyner, 865 F.2d 1187, 1190

(11th Cir. 1989).

In Rich v. Dollar, the Eleventh Circuit Court of Appeals derived a two-part analysis for

applying the objective-reasonableness test to a qualified immunity defense: (1) the defendant public

official must first prove that “he was acting within the scope of his discretionary authority when the

allegedly wrongful acts occurred,” and (2) once the “defendant public official satisfies his burden of

moving forward with the evidence, the burden shifts to the plaintiff to show lack of good faith on the

defendant's part.” Stough, 967 F.2d at 1526; Rich v. Dollar, 841 F.2d 1558, 1563-64 (11th Cir.

1988). The burden is met by proof demonstrating that the defendant public official's actions

“violated clearly established constitutional laws.” Stough, 967 F.2d at 1526; Rich, 841 F.2d at 1563-

64; quoting Zeigler v. Jackson, 716 F.2d 847, 849 (11th Cir. 1983)(per curium).

Under the Zeigler/Rich formulation of the objective-reasonableness test, a government official

proves that he acted within his discretionary authority by showing “‘objective circumstances which

would compel the conclusion that his actions were undertaken pursuant to the performance of his

duties and within the scope of his authority.’” Rich, 841 F.2d at 1564; quoting Barker v. Norman,

651 F.2d 1107, 1121 (5th Cir. Unit A July 1981)); Hutton, 919 F.2d at 1537. Unless a “government

21
agent’s act is so obviously wrong, in 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, the government actor

has immunity from suit.” Belcher, 30 F.3d at 1395-96; citing Malley v. Briggs, 475 U.S. 335, 341-43

(1986). 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 the defendant is doing violates federal law in all

circumstances.” Belcher, 30 F.3d at 1396.

The second component of the Zeigler/Rich objective-reasonableness test is divided into two

analytical subparts. Rich, 841 F.2d at 1563-64. First, the reviewing court must decide whether the

applicable law was clearly established when the governmental action in question occurred. Courson,

939 F.2d at 1487-88; Rich, 841 F.2d at 1563-64; citing Harlow, 457 U.S. at 818. "Clearly

established," is defined, with reference to the right that the official is alleged to have violated, as

meaning that "[t]he contours of the right must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640

(1987). Second, the court must determine whether there is a genuine issue of fact concerning the

government official's conduct being in violation of clearly established law. Rich, 841 F.2d at 1563-

65; see Webb v. Ethridge, 849 F.2d 546, 550 (11th Cir. 1988) (finding genuine issues of material

fact precluded summary judgment based on qualified immunity).

Decisions of this Court have established that the "good faith" defense has both an "objective"

and a "subjective" aspect. The objective element involves a presumptive knowledge of and respect

for "basic, unquestioned constitutional rights." Harlow, 457 U.S. at 185. Referring both to the

objective and subjective elements, we have held that qualified immunity would be defeated if an

official "knew or reasonably should have known that the action he took within his sphere of official

22
responsibility would violate the constitutional rights of the [plaintiff], or if he took the action with

the malicious intention to cause a deprivation of constitutional rights or other injury...." Harlow, 457

U.S. at 815 (emphasis added). And an official's subjective good faith has been considered to be a

question of fact that some courts have regarded as inherently requiring resolution by a jury. Harlow,

457 U.S. at 816; e.g. Landrum v. Moats, 576 F.2d 1320, 1329 (CA8 1978); Duchesne v. Sugarman,

566 F.2d 817, 832-833 (CA2 1977); cf. Hutchinson v. Proxmire, 443 U.S. 111, 120 n.9 (1979)

(questioning whether the existence of "actual malice," as an issue of fact, may properly be decided

on summary judgment in a suit alleging libel of a public figure). Thus, government officials

performing discretionary functions “generally are shielded from liability for civil damages insofar as

their conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow, 457 U.S. at 817-818.

In the present case, Defendants argue that Plaintiff Smith “does not set forth any specific

allegations which connect Sheriff Edwards or Captain Burke to the specific claims of any alleged

constitutional violations. Def. Brief at 10. Defendants reiterate that operating a jail, supervising

employees, and establishing policies and procedures supervising a jail are discretionary acts.” Def.

Brief at 10. Therefore, Defendants argue that anything Defendants “could be accused of doing or not

doing falls well within their discretionary authorities as Sheriff and Captain.” Def. Brief at 10.

Defendant claims that even if a violation of a constitutional right has been shown, Smith “cannot

demonstrate that the right was clearly established so as to strip the individual defendants of qualified

immunity. Def. Brief at 10.

Plaintiff argues that Defendants Burke and Edwards are not entitled to qualified immunity. Pl.

Motion at 1-2, paras. 1-5. Plaintiff argues that Edwards is not entitled to qualified immunity because

“[e]ach and every employees[sic] at Clarke County Jail, works under the supervision of the sheriff.”

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Def. Motion at 1, para. 1. Plaintiff argues Burke is not entitled to qualified immunity because “[h]e’s

the immediate supervisor and should know what is going on.” Def. Motion at 1, para. 2. Plaintiff

further contends that he attempted to contact Burke and Edwards “through letters and complaint

forms.” Def. Motion at 1, para. 3. Furthermore, Plaintiff asserts that “[s]everal other inmates also

complain about officers[sic] abuse and nothing was [done] by Captain Burke or Sheriff Edwards.”

Def. Motion at 2, para. 5.

Supervising employees is certainly an act of performing one’s duties within the scope of their

authority. Both Defendants were acting within the scope of their discretionary authority. The Policy

was officially established prior to the alleged assaults on Plaintiff. If Plaintiff had shown that

Defendants were negligent in the performance of their duties and this negligence was “particularized

to put potential defendants on notice that their conduct probably is unlawful,” then Defendants

actions would rise to the level of clearly violating prisoners’ constitutional rights that a “plainly

incompetent officer or one who was knowingly violating the law would have done such a thing,” and

qualified immunity could be denied. However, Plaintiff has not proffered any other affidavits that

other prisoners are being abused. Plaintiff’s sole claim assertion of abuse, and thus claiming an

isolated incident, is insufficient to put Defendants on notice that even a plainly incompetent officer

would know he was violating the law. Plaintiff has not made that showing under the first part of the

Zeigler/Rich objective-reasonableness test.

However, under the second component of the Zeigler/Rich test, Plaintiff has made a sufficient

showing to deny qualified immunity to Defendants. Plaintiff claims Defendants knew or should have

known that the Policy was being violated by other officers and that nothing was done to correct their

behaviors. A question of fact remains as to whether Defendants have a good faith defense based on

the objective component of the good faith defense. The first component of the good faith test is

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determining whether the law was clearly established. Courson, 939 F.2d at 1487-88. Defendants

admit that Sheriff Edwards signed the Policy into effect in January 2002. The Supreme Court

addressed the second component of the good faith defense holding in Harlow that qualified

immunity would be defeated as an “official knew or reasonably should have known that the action

he took…would violate the constitutional rights of the plaintiff.” Harlow, 457 U.S. at 815. The only

place to determine what one or both of the Defendants knew or should have known prior to the

alleged assault on Smith or after the alleged assault on Plaintiff is at trial. This is not a question of

law but of fact. Defendants deny such existence of any knowledge of prisoner abuse prior to the

alleged assault on Plaintiff. However, for the reasons stated before, qualified immunity may be

denied to both Defendants under precedent case law and the circumstances presented in this case.

5. PLAINTIFF MAY NOT PREVAIL ON A GENERAL RESPONDEAT SUPERIOR

STATE TORT CLAIM.

Official immunity under Georgia law offers limited protection to public officials and

employees from tort claims against them in their individual capacities. Hackett v. Fulton County

School Dist., 238 F.Supp.2d 1330 (2002). Officer Stapleton may or may not have been acting in the

scope of his employment when he committed the alleged assault, however this issue is not

determinative. Captain Burke and sheriff Edwards, whether they were negligent or indifferent in

supervising Officer Stapleton in accordance with the Policy or not, were acting in their official

capacities. Any cause of action averred against a municipal police officer in his official, as opposed

to his personal/individual, capacity is in reality suits against municipality and, therefore, involve

sovereign immunity. Pearson v. City of Atlanta, 231 Ga. App. 96 (1998). Since both defendants may

be entitled to sovereign immunity in their official capacities, Plaintiff Smith may be precluded from

further litigation against Defendants. See discussion of Sovereign immunity in a preceding section.

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 6. PLAINTIFF MAY NOT PREVAIL ON A GENERAL NEGLIGENCE CLAIM AS
A CRIMINAL ACT BY A THIRD PARTY ABSOLVES A DEFENDANT WHO
MAY HAVE OTHERWISE BEEN LIABLE.

A negligence claim requires four elements to be proved before a plaintiff may prevail.

Negligence claims require a duty, breech of that duty, causation, and damages. The plaintiff must

show the defendant had a duty to plaintiff, the defendant breeched the duty, the breech was the

proximate cause of plaintiff’s injury, and the plaintiff’s injury resulted in damages. Assuming

Plaintiff Smith’s versions of the facts are true, than Athens-Clarke County in establishing its Policy

has a duty not to use any more force that necessary, including an unprovoked assault or any other

injurious act. Def. Exhibit B(1) at 1. If an unprovoked officer injured Smith, than a breech of this

duty has occurred. Smith claims he has sustained multiple injuries. The question before this Court is

a question of causation. Causation requires the injury to be directly caused by someone or

something. Defendants Burke and Edwards were not present during the assault, did not witness the

assault, nor actually participated in the assault. Defendants concede that if Officer Stapleton did

assault Smith in the manner Smith describes, than Officer Stapleton’s acts would have violated the

Response to Resistance/Aggression policy. Def. Exhibit A, para (B)(6). A violation of the Policy in

this manner would constitute a simple assault under O.C.G.A. §16-5-20 (2004).

An intervening criminal act may break causation, breaking liability to a third party who may

have been liable if not for the intervening act. Georgia law has been generally held that when “there

has intervened between the defendant’s negligence and the injury an independent, illegal act of a

third person producing the injury, and without which it would not have occurred, such independent

criminal act should be treated as the proximate cause, insulating and excluding the negligence of the

defendant.” Warner v. Arnold, 133 Ga. App. 174, 176 (1974); see also Andrews & Co. v. Kinsel,

114 Ga. 390 (1901). The key factor in determining Defendants’ liability is whether or not the

26
Defendants could reasonably foresee the possibility of a third person’s criminal act. Paschal v.

Ferguson Transport, Inc., 189 Ga. App. 447, 448 (1988); Southeastern Stages, Inc. v. Stringer, 263

Ga. 641, 643 (1993) (finding more than a mere possibility must be shown to establish reasonable

foreseeability).

In the instant case, the act by Officer Stapleton punching Smith in the face as an isolated

incident cannot be said to be a reasonably foreseeable event by Captain Burke or Officer Edwards.

Substantially similar prior conduct must have occurred to put the defendants on notice that this

conduct might reasonably be anticipated to occur again. Days Inns of America, Inc. v. Matt, 265 Ga.

235 (1995). Plaintiff Smith has filed no other affidavits from other prisoners that Officer Stapleton or

any other officers have on other occasions defied the Policy and attacked other prisoners without

provocation. Furthermore, it must also be shown that the Defendants had superior knowledge of the

existence of the condition that subjected the plaintiff to an unreasonable harm. Howell v. Three

Rivers Security Inc., 216 Ga. App. 890, 892 (1995). Defendants deny any such knowledge. The

burden rests on the plaintiff to demonstrate the existence of said knowledge. Thus, Plaintiff’s claim

on a state negligence theory may fail as a matter of law.

7. PLAINTIFF MAY NOT PREVAIL ON A 8TH AMENDMENT CLAIM OF CRUEL

AND UNUSUAL PUNISHMENT.

Plaintiff Smith may not make an eighth amendment claim. A Georgia state prisoner brought a

suit against various prison officials alleging his constitutional rights were violated when prison

guards beat him without provocation. “An isolated assault by an individual guard on an inmate is

not, within the meaning of the eighth amendment, punishment.” George v. Evans, 633 F.2d 413,

415-416 (5th Cir. 1980); see also Sheffey v. Greer, 391 F.Supp. 1044, 1046 (E.D.Ill.1975) (finding

“[a] single punch in the face by a prison guard does not constitute cruel and unusual punishment”).

27
There was insufficient evidence to show that the beating was “authorized or acquiesced in by high

prison officials for a penal or disciplinary purpose. Consequently, there was no punishment in this

case.” George, 633 F.2d at 416. Thus, Plaintiff may not make a future claim on 8th Amendment claim

of cruel and unusual punishment against Defendants, notwithstanding the collateral estoppel issues.

8. PERSONAL RECOMMENDATIONS

I would recommend granting Sovereign immunity to both Captain Burke and Officer Edwards.

Case law holds even if both of these officers were negligently performing their duties, a claim

against the defendants in their official capacity is a suit against Athens-Clarke County, and

something more is needed for Plaintiff to attach liability to the County. Case law has found a bare

accusation is insufficient as the county cannot be responsible for “one bad apple.” Plaintiff does have

a claim against the officers who participated in the alleged assault in their personal capacities, and

case law supports denying summary judgment against those officers who may have participated in

the assault. I would deny qualified immunity to both Defendants because the policy had been

established for a couple of years and a question of fact may exist as to each defendant’s knowledge

of possible violators of the Policy. In conclusion, I would grant summary judgment for Defendants

based on a respondeat superior and sovereign immunity, however, if your Honor finds that the

municipality's failure to correct constitutionally offensive actions of its police department (in this

case the sheriff’s department) has risen to the level of custom or policy, a municipality can be held

liable under §1983 if a municipality tacitly authorizes actions or displays deliberate indifference

towards police misconduct. Brooks v. Scheib, 813 F. 2d 1191 (11th Cir. 1987). Without the Plaintiff

claiming a course of conduct rather than this isolated incident, this burden may not be reached in this

case.

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