Opinion
CIVIL ACTION FILE No. 2:21-CV-194-SCJ
2022-11-21
James R. COOLEY, Plaintiff, v. Danny Bryan WOODS and the City of Pendergrass, Defendants.
James R. Cooley, Pendergrass, GA, Pro Se. Grace Brennagh Callanan, Burr & Forman LLP, Atlanta, GA, Kathryn McNamee White, Wesley Calvin Jackson, Sun S. Choy, Freeman Mathis & Gary, LLP, Atlanta, GA, for Defendants.
James R. Cooley, Pendergrass, GA, Pro Se. Grace Brennagh Callanan, Burr & Forman LLP, Atlanta, GA, Kathryn McNamee White, Wesley Calvin Jackson, Sun S. Choy, Freeman Mathis & Gary, LLP, Atlanta, GA, for Defendants. ORDER STEVE C. JONES, UNITED STATES DISTRICT JUDGE
This matter appears before the Court on Defendants' Motion to Dismiss. Doc. No. [27]. Plaintiff responded in opposition (Doc. No. [30]), and Defendants replied (Doc. No. [32]). This Motion is now ripe for review.
All citations are to the electronic docket unless otherwise noted, and all page numbers are those imprinted by the Court's docketing software.
I. BACKGROUND
Plaintiff filed his Application to Proceed in forma pauperis ("IFP") on September 2, 2021. Doc. No. [1]. On September 7, 2021, United States Magistrate Judge J. Clay Fuller granted Plaintiff's IFP status and directed the Clerk of Court to submit the matter to this Court for a frivolity determination pursuant to 28 U.S.C. § 1915(e).
The following facts are derived from Plaintiff's Complaint and accompanying exhibits. On July 16, 2020, Plaintiff awoke to writing in the street in front of his house stating, "Black Lives Matter and F[ ] Trump." Doc. No. [3], ¶¶ 6-7. Plaintiff posted on the public Seasons at Pendergrass Community Facebook page ("the Facebook Page") asking a neighbor to check her doorbell camera to see who wrote the message. Id. ¶ 10. After receiving no response, Plaintiff posted the following message to the Facebook Page (the "Facebook Post"):
UNDERSTAND THIS: BLACK LIVES MATTER IS A HATE GROUP & I WILL NOT TOLERATE HATE IN THIS COMMUNITY. I CATCH ANYONE DEFACING ANYTHING . . . WORST MISTAKE YOU MAKE. I CATCH YOU ON MY PROPERTY DOING IT & I WILL SHOOT YOU! IF IT WAS YOUR KID THAT DID THIS . . . YOU NEED TO TEACH THEM THAT ALL LIVES MATTER.Doc No. [3-1], 4. After the Facebook Post was published, Plaintiff's neighbor called 911 and stated that Plaintiff threatened to shoot a neighbor's child. Id. ¶ 18. Officer Woods arrived in Plaintiff's neighborhood and spoke with Plaintiff's neighbors about the Facebook Post. Doc. No. [3-1], 15-16. All the neighbors that Officer Woods interviewed stated that they perceived the Facebook Post as a threat. Id. at 16. Officer Woods then personally reviewed the Facebook Post. Id.
Subsequently, Officer Woods applied for an arrest warrant with the State Court for Jackson County, Georgia. Id. at 12. Officer Woods included an affidavit in support of his application for an arrest warrant, which states:
[Plaintiff] [d]id threaten to commit aggravated assault, a crime of violence, by shooting anyone which is liking to cause serious bodily injury or death, he caught defacing property, with the purpose of terrorizing a community by posting said threats on a public Facebook page for the Seasons of Pendergrass Neighborhood. Said threats stemmed from children writing "Black Lives Matter" on a public roadway and was intended to intimidate residents in said community.Id. at 12. The magistrate then signed the arrest warrant for Plaintiff. Id. at 16. Officer Woods and the Jackson County Sheriff went to Plaintiff's house and arrested Plaintiff. Id. Plaintiff was held in custody for 23 hours. Doc. No. [3], ¶ 22. Plaintiff was then released on bond. Id. ¶ 25. Ultimately, the district attorney did not bring charges against Plaintiff. Id. ¶ 79.
Upon a frivolity determination, the Court dismissed the § 1983 claims against the City of Pendergrass as frivolous because Plaintiff did not plead that the City of Pendergrass has a policy or custom of officers obtaining arrest warrants that are based upon false information and then acting upon that warrant. Doc. No. [9], 6-7. The Court also dismissed Plaintiff's claims for malicious prosecution against all Defendants as frivolous because Plaintiff was not prosecuted. Doc. No. [9], 11. The Court found that Plaintiff's remaining claims were not frivolous and ordered the Clerk of Court to serve the Complaint on Defendants. Doc. No. [9].
On February 9, 2022, Plaintiff filed a motion for reconsideration, arguing that the Court improperly dismissed Plaintiff's § 1983 claims against the City of Pendergrass because Defendant Woods is the Chief of Police for the City of Pendergrass and the Court improperly dismissed the malicious prosecution claims. Doc. No. [10], 2. The Court granted in part and denied in part, Plaintiff's Motion for Reconsideration. Doc. No. [15]. The Court found that Plaintiff brought a non-frivolous malicious prosecution claim against Officer Woods but found that the claims against the City of Pendergrass were correctly dismissed as frivolous. Id.
Plaintiff then served Defendants with the Complaint. Defendants moved to dismiss Plaintiff's Complaint. Doc. No. [27]. Defendants argue that Plaintiff's Fourth Amendment malicious prosecution claim is due to be dismissed because Officer Woods had probable cause to arrest Plaintiff. Doc. No. [27-1], 9-13. Second, because Officer Woods had probable cause to arrest Plaintiff, Plaintiff's First Amendment retaliation claim fails as a matter of law. Id. at 13-14. Third, Officer Woods had qualified immunity from Plaintiff's claims brought pursuant to § 1983. Id. at 14-16. Plaintiff's State law claims are subject to dismissal on the merits. Id. at 16-19. Officer Woods is entitled to official immunity from the State law claims. Id. at 19-21. The City of Pendergrass cannot be liable under the doctrine of respondeat superior and enjoys sovereign immunity from these claims. Id. at 21-23. Finally, Plaintiff's claims for punitive damages are attorney's fees should be dismissed. Id. at 23-25.
Plaintiff responded by arguing that Defendant's Motion to Dismiss misstates the facts. Doc. No. [30], 1-3. Plaintiff argues that Officer Woods is not entitled to qualified immunity because he sought a warrant which contained misstatements and was not supported by probable cause. Id. 3-9. Plaintiff's false arrest claim should not be dismissed because Officer Woods perjured himself when he filed the affidavit supporting the arrest warrant. Id. at 9. Plaintiff's § 1983 malicious prosecution claims should not be denied because Officer Woods lacked probable cause to arrest Plaintiff. Id. at 10-14. Plaintiff's malicious prosecution and intentional infliction of emotional distress claims are sufficient to withstand dismissal. Id. at 10-16. Officer Woods is not entitled to official immunity. Id. at 16. The City of Pendergrass is liable because Officer Woods was the chief law enforcement officer for the city and therefore had decision-making authority. Id. at 16-17. The City of Pendergrass waived sovereign immunity over these claims. Id. 17-18. Finally, Plaintiff is entitled to compensatory, consequential, and punitive damages. Id. at 18.
While the Court agrees that the statement "Plaintiff observed minor children playing with chalk in his neighborhood" is not consistent with Plaintiff's Complaint, The Court finds that this misstatement is not a "gross misrepresentation" of the facts under Georgia State Bar Rule 4.1. Additionally, this Court does not have the authority to adjudicate ethical complaints brought under the Georgia Rules for Professional Responsibility and Ethical Conduct. That power lies with the Georgia Supreme Court.
II. LEGAL STANDARD
A complaint may be dismissed if the facts as pled do not state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (explaining "only a complaint that states a plausible claim for relief survives a motion to dismiss"); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561-62, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (retiring the prior Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) standard which provided that in reviewing the sufficiency of a complaint, the complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief"). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. In Iqbal, the Supreme Court reiterated that although Rule 8 of the Federal Rules of Civil Procedure does not require detailed factual allegations, it does demand "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. In Twombly, the Supreme Court emphasized that a complaint "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." 550 U.S. at 555, 127 S.Ct. 1955. Factual allegations in a complaint need not be detailed but "must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. (internal citations and emphasis omitted).
III. ANALYSIS
The Court finds that Plaintiff's claims are due to be dismissed.
A. Fourth Amendment
The Court construes Plaintiff's Fourth Amendment claim as one for malicious prosecution. Plaintiff's claim for violation of the Fourth Amendment under § 1983 is pled generally and does not specifically state if it is for false arrest or malicious prosecution. Plaintiff alleges that Officer Woods falsely swore to a magistrate that Plaintiff "threaten[ed] to commit Aggravated Assault, a crime of violence, by shooting anyone which is liking to cause serious bodily injury or death, he caught defacing property." Doc. No. [3], ¶ 64. And that Officer Woods arrested Plaintiff pursuant to the arrest warrant. Id. ¶ 72. Because Plaintiff was arrested pursuant to an arrest warrant, his Fourth Amendment claim is for malicious prosecution, not false arrest. See Carter v. Gore, 557 F. App'x 904, 906 (11th Cir. 2014) ("The issuance of a warrant—even an invalid one as Carter alleges was issued here—constitutes legal process, and thus, where an individual has been arrested pursuant to a warrant, his claim is for malicious prosecution rather than false arrest.")
The Court now determines whether Plaintiff sufficiently alleged a claim for malicious prosecution. "[F]or purposes of a § 1983 malicious prosecution claim Plaintiff "must first "establish (1) that the legal process justifying his seizure was constitutionally infirm and (2) that his seizure would not otherwise be justified without legal process." Laskar v. Hurd, 972 F.3d 1278, 1284 (11th Cir. 2020), cert. denied, — U.S. —, 142 S. Ct. 1667, 212 L.Ed.2d 577 (2022). Then Plaintiff "must satisfy "the elements of the common law tort of malicious prosecution." Id. Under Georgia law, malicious prosecution requires: "(1) a criminal prosecution is instituted or continued by the present defendant; (2) with malice and without probable cause; (3) that terminated in the plaintiff accused's favor; and (4) caused damage to the plaintiff accused." Brown v. Georgia-Carry.org, Inc., 331 Ga. App. 890, 892, 770 S.E.2d 56, 59 (2015).
The Court finds that Plaintiff's malicious prosecution claim is due to be dismissed because Officer Woods is entitled to qualified immunity for the Fourth Amendment claims. "Qualified immunity offers complete protection for government officials sued in their individual capacities if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (quotation omitted). "The purpose of this immunity is to allow government officials 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." Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (internal citation and quotation omitted).
To qualify for the immunity, an official "must first prove that he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred." Mikko v. City of Atlanta, 857 F.3d 1136, 1143-44 (11th Cir. 2017) (quotation omitted). Here, there is no dispute that Officer Woods acted within his discretionary authority when he investigated the complaint, applied for the arrest warrant, and executed the arrest warrant. See Carter, 557 F. App'x at 907 (finding that an officer is acting within his discretionary authority when "investigating and securing an arrest warrant in response to reported criminal activity.").
Where, as here, Officer Woods was acting within his discretionary authority, "the burden shifts to the plaintiff to show that qualified immunity is not appropriate." Lee, 284 F.3d at 1194. "To meet [that] burden, a plaintiff must show both (1) that [he] suffered a violation of a constitutional right and (2) that the right [he] claims was clearly established at the time of the alleged misconduct." Huebner v. Bradshaw, 935 F.3d 1183, 1187 (11th Cir. 2019) (quotation omitted). District courts are "permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).
For a right to be clearly established, it must be "clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The Eleventh Circuit has identified three ways for the law to be clearly established:
First, the plaintiffs may show that a materially similar case has already been decided. Second, the plaintiffs can point to a broader, clearly established principle that should control the novel facts of the situation. Finally, the conduct involved in the case may so obviously violate the constitution that prior case law is unnecessary.Terrell v. Smith, 668 F.3d 1244, 1255 (11th Cir. 2012) (cleaned up). In assessing whether the law is clearly established, Courts look to the law as it was interpreted at the time of the challenged conduct by the United States Supreme Court, the Eleventh Circuit, and the Georgia Supreme Court. See id.
The Fourth Amendment provides that "no [w]arrants shall issue, but upon probable cause, supported by [o]ath or affirmation." U.S. CONST. AMEND. IV. The Supreme Court has held that an officer violates this provision by submitting a warrant affidavit with falsehoods that were made "deliberate[ly]" or in "reckless disregard for the truth." Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); see also Holmes v. Kucynda, 321 F.3d 1069, 1083 (11th Cir. 2003) (noting that an "officer may be held liable under 42 U.S.C. § 1983 for submitting an application for an arrest warrant that contains false information").
Courts analyze a Franks claim in two steps. First, courts "ask whether there was an intentional or reckless misstatement." Paez v. Mulvey, 915 F.3d 1276, 1287 (11th Cir. 2019). Second, courts "examine the materiality of the information by inquiring whether probable cause would be negated if the offending statement was removed." Id. Probable cause to search exists where there is a "fair probability that contraband or evidence of a crime will be found in a particular place." Feliciano v. City of Miami Beach, 707 F.3d 1244, 1251 (11th Cir. 2013) (quotation omitted). Even "arguable probable cause" is enough to show entitlement to qualified immunity. See Madiwale v. Savaiko, 117 F.3d 1321, 1327 (11th Cir. 1997).
Applying the Franks framework, the Court must first identify all "deliberate falsehood[s]" and any statements made in "reckless disregard for the truth." Franks, 438 U.S. at 171, 98 S.Ct. 2674. Plaintiff alleges that the affidavit in support of the arrest warrant reads:
[Mr. Cooley d]id threaten to commit aggravated assault, a crime of violence, by shooting anyone which is liking to cause serious bodily injury or death, he caught defacing property, with the purpose of terrorizing a community by posting said threats on a public Facebook page for the Seasons of Pendergrass Neighborhood. Said threats stemmed from children writing "Black Lives Matter" on a public roadway and was intended to intimidate residents in said community.Doc. No. [3-1], 12. In contrast, the Facebook Post read:
UNDERSTAND THIS: BLACK LIVES MATTER IS A HATE GROUP & I WILL NOT TOLERATE HATE IN THIS COMMUNITY. I CATCH ANYONE DEFACING ANYTHING . . . WORSE MISTAKE YOU MAKE. I CATCH YOU ON MY PROPERTY DOING IT & I WILL SHOOT YOU! IF IT WAS YOUR KID THAT DID THIS . . . YOU NEED TO TEACH THEM THAT ALL LIVES MATTER!!!
Doc. No. [3-1], 4.
The Court finds that although the statements in Officer Woods' affidavit do not exactly match the Facebook Post, the statements were not made in reckless disregard for the truth. "The [Supreme] Court made clear that statements made in support of a warrant need not actually be true, but they needed 'to be 'truthful' in the sense that the information put forth is believed or appropriately accepted by the affiant as true." Carter, 557 F. App'x at 908 (citing Franks, 438 U.S. at 166, 98 S.Ct. 2674). And "[a]n officer loses qualified immunity if the plaintiff can prove that the officer perjured himself—that is, put forth information he did not believe or accept as true—in order to obtain a search warrant." Id. (citing Kelly v. Curtis, 21 F.3d 1544, 1554 (11th Cir. 1994)). Conversely, qualified immunity does attach when an officer makes a statement that negligently disregards the truth. Kelly, 21 F.3d at 1554. The Court now determines whether Officer Woods' affidavit contained perjurious statements or statements made with reckless disregard for the truth.
The Court finds that the statements in Officer Woods' affidavit are not perjurious or made with reckless disregard for the truth. The Eleventh Circuit has found that affidavits in support of warrants contained either perjurious statements or statements made with reckless disregard for the truth in the following cases. In Kelly, the Eleventh Circuit found that the officers were not entitled to qualified immunity. Kelly, 21 F.3d at 1554-55. There, the officers swore an affidavit stating that plaintiff possessed cocaine even after the officers received a lab report showing that the substance they found on plaintiff was negative for cocaine. Id. In Holmes v. Kucynda, 321 F.3d 1069, 1083-84 (11th Cir. 2003), the Eleventh Circuit found that the officers also were not entitled to qualified immunity. The affidavit stated that cocaine, marijuana, and marijuana seeds were found in the plaintiff's bedroom, and the plaintiff was evasive when asked questions. Id. at 1083. However, the officers' investigation showed that the plaintiff did not reside in the residence, interviews and personal observations showed that the plaintiff did not sleep where the drugs were found, the officers did not observe loose marijuana seeds, and the plaintiff was not evasive in answering questions. Id. at 1083-1084.
In contrast, the Eleventh Circuit found that warrants did not contain either perjurious statements or statements made with reckless disregard for the truth in Williams v. Taylor-Lee, 397 F. App'x 608, 610 (11th Cir. 2010). The Eleventh Circuit found that the officers were entitled to qualified immunity. Id. The officer's affidavit in support of the search warrant stated, "[plaintiff] told [the] victim her son would not shoot [the victim] if he released the car." Williams v. Taylor-Lee, 1:08-cv-2579-RWS, 2010 WL 520796, at *1 (N.D. Ga. Feb. 9, 2010). However, the incident report recorded the statement as "that her son wasn't going to shoot [the victim] he just want (sic) the car back." Id. The Eleventh Circuit found that the statement in the affidavit was neither perjurious nor made with reckless disregard for the truth because it was a reasonable interpretation of the incident report, and the "statement can be plausibly interpreted as a threat to commit a crime of violence." Williams, 397 F. App'x at 610.
The Court finds that Officer Woods' affidavit is similar to the one in Williams and not those in Curtis and Holmes. Like in Williams, it is reasonable to read the Facebook Post as threatening to shoot anyone who he caught defacing his property. Doc. No. [3-1], 12. The Facebook Post states: "I CATCH ANYONE DEFACING ANYTHING . . . WORSE MISTAKE YOU MAKE. I CATCH YOU ON MY PROPERTY DOING IT & I WILL SHOOT YOU!" Doc. No. [3-1], 4. The Court finds that this statement can reasonably be read to suggest that if a person defaces his property, he will shoot said person. Just as in Williams, the affidavit is not a word-for-word duplicate of the Facebook Post, but it is a reasonable reading of the Facebook Post. In support of this understanding, Plaintiff alleges that the original 911 call reported that Plaintiff made a Facebook Post threatening to shoot a neighbor's child. Doc. No. [3], ¶ 18. Additionally, the Complaint alleges that other neighbors perceived the Facebook Post as a threat. Id. ¶ 60.
The Court notes that Plaintiff alleges "[w]hile cross examining Chief Woods, Mr. Cooley elicited form Chief Woods that everything that was written in the Facebook Post was not a threat to anyone, but was Mr. Cooley's right to say under Mr. Cooley's right to freedom of speech." Doc. No. [3], ¶ 31. Although Plaintiff's Complaint contains this assertion, the Court finds that Officer Woods' alleged statements were legal conclusions that the Court is not required to accept. See Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)) ("on a motion to dismiss courts 'are not bound to accept as true a legal conclusion couched as a factual allegation.").
Thus, the Court finds that Plaintiff has not met the first element of a Franks claim because the statements in the affidavit were neither perjurious nor made in reckless disregard for the truth. Even though the statements in the affidavit were not a carbon copy of the Facebook Post, the Court finds that they were distinguishable from the affidavits where the Eleventh Circuit found a perjurious statement. Therefore, the Court finds that in the absence of perjurious statements or statements made with reckless disregard to the truth, Officer Woods is entitled to qualified immunity. Importantly, the Eleventh Circuit noted, "the difference between 'reckless' and merely 'negligent' disregard for the truth is not crystal clear; we have not staked out a bright line." Id. "Thus, [i]f case law, in factual terms, has not staked out a bright line, qualified immunity almost always protects the defendant." Smith v. Mattox, 127 F.3d 1416, 1419 (11th Cir. 1997). Because the Court finds that the statements in Officer Woods' affidavit are more akin to those in Williams than in Curtis or Holmes, the Court finds that Officer Woods is entitled to qualified immunity.
Second, after an independent review of the facts alleged by Plaintiff, the Court finds that Officer Woods had probable cause to arrest Plaintiff for terroristic threats. "Probable cause to arrest exists when law enforcement officials have facts and circumstances within their knowledge sufficient to warrant a reasonable belief that the suspect has committed or was committed a crime." Case v. Eslinger, 555 F.3d 1317, 1327 (11th Cir. 2009). Under Georgia law,
(b)(1) A person commits the offense of a terroristic threat when he or she threatens to:
(A) commit any crime of violence
. . . .
(2) Such terroristic threats shall be made:
O.C.G.A. § 16-11-37. "[T]he essential elements of terroristic threats and acts are: (1) a threat to commit any crime of violence (2) with the purpose of terrorizing another." Torres v. State, 361 Ga. App. 149, 152-53, 863 S.E.2d 399, 403 (2021). "With regard to the first element, plain and ordinary meaning of the word 'threat' refers to a communication, declaration, or intention to inflict harm or damage." Bryant v. State, 306 Ga. 687, 690, 832 S.E.2d 826 (2019).(A) With the purpose of terrorizing another . . .
Here, Plaintiff threatened to commit a crime of violence. The Facebook Post stating, "I CATCH ANYONE DEFACING ANYTHING . . . WORSE MISTAKE YOU MAKE. I CATCH YOU ON MY PROPERTY DOING IT & I WILL SHOOT YOU!" (Doc. No. [3-1], 4) constitutes a communication because Plaintiff communicated to the members of the Facebook Page that he would shoot anyone he caught defacing his property. The Court finds that shooting constitutes a crime of violence. The Georgia Supreme Court has not expressly defined "a crime of violence" because a "person of ordinary intelligence can clearly understand the meaning of threatening to commit any crime of violence." Major v. State, 301 Ga. 147, 152, 800 S.E.2d 348, 352 (2017). However, in a different context, the Eleventh Circuit interpreted "crime of violence" to mean a crime involving "physical force so as to injure or damage." United States v. Oliver, 962 F.3d 1311, 1321 (11th Cir. 2020). Here, Plaintiff threatened to shoot individuals; shooting constitutes a physical force made to injure. Thus, Officer Woods had probable cause to believe that Plaintiff communicated a threat of a crime of violence.
Second, Plaintiff made the threat to either terrorize another. Georgia Courts have upheld terroristic threat convictions in the following instances. See, e.g., In re K.J., 294 Ga. App. 155, 156, 668 S.E.2d 775, 776 (2008) (sustaining conviction for terrorist threats where the defendant pounded her fist into her hand and stated that she was "going to get" the instructor); Denson v. State, 259 Ga. App. 342, 343, 344-345, 577 S.E.2d 29 (2003) (sustaining conviction for terroristic threats based upon defendant's statements that "he had a bomb" for the victims and that they should "check their mailbox[es]"); Shepherd v. State, 230 Ga. App. 426, 496 S.E.2d 530 (1998) (defendant's statement that "he was going to stomp [the victim's] butt when he saw him" was a terroristic threat).
Here, like in the above cases, Plaintiff communicated a threat to a distinct group of people and gave a timeframe for carrying out that threat. Plaintiff specifically stated in the Facebook Post that he would shoot anyone he found defacing his property. Doc. No. [3-1], 4. The Facebook Post was targeted at members of the Facebook Page, and the Facebook Post stated that the threat would be carried out if Plaintiff caught someone defacing his property. Id. Accordingly, the Court finds that Plaintiff made a threat to terrorize another. Because Plaintiff communicated the threat and it was made to terrorize others, the Court finds that Officer Woods had probable cause to arrest Plaintiff for the crime of terroristic threats.
To the extent that Plaintiff seeks to justify the Facebook Post under the theory of defense of property, the Court finds this argument unavailing. Under Georgia law,
A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to prevent or terminate such other's unlawful entry into or attack upon a habitation; however, such person is justified in the use of force which is intended or likely to cause death or great bodily harm only if:
(1) The entry is made or attempted in a violent and tumultuous manner and he or she reasonably believes that the entry is attempted
O.C.G.A. § 16-3-23.or made for the purpose of assaulting or offering personal violence to any person dwelling or being therein and that such force is necessary to prevent the assault or offer of personal violence;
(2) That force is used against another person who is not a member of the family or household and who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using such force knew or had reason to believe that an unlawful and forcible entry occurred; or
(3) The person using such force reasonably believes that the entry is made or attempted for the purpose of committing a felony therein and that such force is necessary to prevent the commission of the felony.
[T]he defense of habitation statute places a condition on the use of deadly force in situations [ ] that do not involve unlawful and forcible entry of a residence. Here, the evidence must establish that the defendant had "an objective reasonable belief that the [assailant] is entering to assault, to offer personal violence, or to commit a felony and that deadly force is necessary to prevent one of those acts."Clark v. State, 307 Ga. 537, 541, 837 S.E.2d 265, 269 (2019) (citing Fair v. State, 288 Ga. 244, 257, 702 S.E.2d 420 2010) (emphasis in original).
Here, Plaintiff's threat to shoot anyone he finds defacing his property constitutes a threat of deadly force. The defense of property statute did not protect Plaintiff when he made this threat. Georgia law does not permit a citizen to threaten deadly force in defense of property for defacing property without a showing that a plaintiff is in reasonable fear of an assault, personal violence, or the victim of a felony where deadly force is necessary to prevent the felony. Plaintiff does not allege that he feared assault or violence when he made the Facebook Post. Rather, the Facebook Post generally seeks to prevent an individual from committing vandalism. Because Plaintiff did not allege that he feared an assault or personal violence when he made the Facebook Post, Georgia's defense of property statute does not defeat Officer Woods' probable cause for arresting Plaintiff.
Officer Woods' has qualified immunity from Plaintiff's Fourth Amendment claims because (1) he did not perjuriously or recklessly disregard the truth when submitting his affidavit in support of the search warrant and (2) he had probable cause to arrest Plaintiff for making terroristic threats.
B. First Amendment Claims
The Court finds that Plaintiff's First Amendment retaliation claims are due to be dismissed. "The Plaintiff pressing a retaliatory arrest claim must plead and prove the absence of probable cause for arrest." Nieves v. Bartlett, — U.S. —, 139 S. Ct. 1715, 1724, 204 L.Ed.2d 1 (2019). In Nieves, the Supreme Court held that "[b]ecause there was probable cause to arrest Bartlett, his retaliatory arrest claims fail as a matter of law." Id. at 1728. In dicta, the Supreme Court carved out an exception, stating, "although probable cause generally defeats a retaliatory arrest claim, 'a narrow qualification is warranted for situations where officers have probable cause to make arrests, but typically exercise their discretion not to do so." DeMartini v. Town of Gulf Stream, 942 F.3d 1277, 1296-97 (11th Cir. 2019) (quoting Nieves, 139 S. Ct. at 1727).
As stated above, Officer Woods had probable cause to arrest Plaintiff for making terroristic threats. Additionally, Plaintiff has not alleged that officers in the city of Pendergrass generally refrain from making arrests based upon terroristic threats. Accordingly, Plaintiff's First Amendment retaliation claim is dismissed.
C. State Law Claim
The Court's jurisdiction over Plaintiff's remaining state law claims is supplemental. Doc. No. [3], 7-8. In accordance with 28 U.S.C. § 1367(c)(3), "district courts may decline to exercise supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which it has original jurisdiction." See also Raney v. Allstate Ins. Co., 370 F.3d 1086, 1088-89 (11th Cir. 2004) ("The decision to exercise supplemental jurisdiction over pendant state claims rests within the district court. We have encouraged district courts to dismiss any remaining state law claims when . . . the federal claims have been dismissed prior to trial."). Because the Court dismissed Plaintiff's federal claims, the Court declines to exercise jurisdiction over Plaintiff's state law claims.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants' Danny Bryan Woods' and The City of Pendergrass' Motion to Dismiss Plaintiff's Complaint for failure to state a claim (Doc. No. [27]). Plaintiff's Complaint is DISMISSED WITHOUT PREJUDICE.
The Clerk of Court is DIRECTED to DENY AS MOOT Plaintiff's Motion for Hearing, Sanctions, and Free Access to Pacer (Doc. No. [26]).
The Clerk of Court is DIRECTED to CLOSE THIS CASE.
IT IS SO ORDERED this 21st day of November, 2022.