Brown v. Dorsey

• Decision Date: 14 November 2005
• Docket Number: No. A05A1129.,A05A1129.
• Parties: BROWN et al. v. DORSEY et al.
• Court: Georgia Court of Appeals

276 Ga. App. 851

625 S.E.2d 16

BROWN et al. v. DORSEY et al.

No. A05A1129.

Court of Appeals of Georgia.

November 14, 2005.

Reconsideration Denied December 14, 2005.

COPYRIGHT MATERIAL OMITTED

Casey, Gilson & Leibel, Steven K. Leibel, George P. Shingler, Guy H. Weiss, Atlanta, for appellants.

William J. Linkous III, Atlanta, Melanie F. Wilson, Sam L. Brannen, Jr., Statesboro, Viviane H. Ernestes, E. Duane Jones, Brian Steel, Atlanta, for appellees.

MIKELL, Judge.

Phyllis Brown, widow of murdered DeKalb County Sheriff-elect Derwin Brown, filed an action against the County, former DeKalb County Sheriff Sidney Dorsey, former deputies Patrick Cuffy and Melvin Walker, and their co-conspirators, Paul Skyers and David Ramsey. Mrs. Brown asserted claims against the County pursuant to 42 USC § 1983 for wrongful death, pain and suffering, and special damages resulting from the violation of Brown's First and Fourteenth Amendment rights. The superior court granted the County's motion to dismiss it as a party to this action.¹ The case proceeded to trial on damages only against Dorsey, Cuffy, and Skyers. After a four-day jury trial, judgment was entered on the verdict for $326,136,398 in compensatory damages and $450,000,000 in punitive damages. Mrs. Brown seeks to recover the compensatory damage award from the County. Specifically, she contends that the County is liable to her for the death of her husband because Dorsey used the powers of his office to accomplish the murder.² She also alleges that Dorsey was a final policymaker for the County concerning the operation of the sheriff's office. The County moved for dismissal on the basis that the United States Supreme Court has placed strict limitations on local government liability under 42 USC § 1983.³ The trial court granted the motion for the reasons that Mrs. Brown (1) failed to show that the sheriff of DeKalb County is a county policymaker and (2) failed to identify either an officially promulgated county policy or an unofficial custom or practice binding the County for Dorsey's actions in the murder of Brown. Although we do not agree with all that is said in the trial court's order, we affirm the judgment.

"A motion to dismiss may be granted only where a complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proven in support of her claim."⁴ "In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party's favor."⁵ We apply a de novo standard of review to the trial court's ruling on a motion to dismiss. ⁶

In her complaint, Mrs. Brown alleges that Dorsey utilized the sheriff's department's resources and manpower to kill her husband; that Dorsey and the other individual defendants committed the murder under color of state law; and that as the sheriff, Dorsey was the final policymaker for the County in matters concerning the use of deadly force by sheriff's department personnel, the direction and control of deputies and jailers, and the direction, control, and use of sheriff's department materials, equipment, and resources. Following oral argument on the County's motion to dismiss, Mrs. Brown amended her complaint to assert that Dorsey acted, pursuant to his authority as sheriff, "to implement a policy of keeping himself in office by eliminating his competition." Accordingly, she contends that the County is liable for Dorsey's actions.

In order to state a claim against the County under 42 USC § 1983, Mrs. Brown must allege that a County policymaker's acts or omissions, done under color of state law, resulted in the deprivation of a right, privilege, or immunity protected by the United States Constitution or the laws of the United States.⁷ In other words, the plaintiff must show a deprivation of a "federal right by a person acting under color of state law."⁸ Municipalities and other local government entities are included among those persons to whom § 1983 applies.⁹ Municipalities and other local government entities, however, may not be held liable on a respondeat superior theory; instead, it is only when the execution of its policy or custom inflicts the subject injury that liability can attach to the entity under § 1983.¹⁰ To make this showing, a plaintiff must prove that, through a deliberate and official policy, the local governmental entity was the moving force behind the constitutional tort.¹¹ "A policy is a decision that is officially adopted by the municipality, or created by an official of such rank that he or she could be said to be acting on behalf of the municipality."¹² A custom is a practice that is so settled and permanent that it takes on the force of law.¹³ As succinctly stated by the late United States Supreme Court Chief Justice Rehnquist, "[i]f the sheriff's actions constitute county `policy,' then the county is liable for them."¹⁴

The United States Supreme Court has held that "municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances."¹⁵ However, "municipal liability under § 1983 attaches where — and only where — a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question."¹⁶ Moreover,

[e]ven though a single decision by municipal policymakers... may be sufficient to establish that a municipal policy or custom caused the alleged deprivation, municipal liability may not be imposed pursuant to 42 USC § 1983 for a single incident of unconstitutional conduct ... without proof that the conduct was taken pursuant to a municipal policy or custom.¹⁷

1. Mrs. Brown would have us rule that Dorsey, as sheriff of DeKalb County, was invested with final policymaking authority sufficient to render the County liable under § 1983 for his evil, ultra vires actions.¹⁸ We decline to make that ruling.

No Georgia appellate court has squarely addressed the issue of whether the sheriff acts with final policymaking authority for the county or for the state in the context of a § 1983 action. However, in Grech v. Clayton County¹⁹ an exhaustive 6-6 plurality opinion, the Eleventh Circuit Court of Appeals held that although Ga. Const. of 1983, Art. IX, Sec. I, Par. III(a)-(b) designates the sheriff as a "county officer," the same paragraph grants the state legislature the exclusive authority to establish and control a sheriff's powers, duties, qualifications, and minimum salary.²⁰ The court also noted that in interpreting this constitutional provision, the Supreme Court of Georgia has stated that "[t]he sheriff is an elected, constitutional officer; he is subject to the charge of the General Assembly and is not an employee of the county commission."²¹ Based on these findings, and noting that "local governments such as counties can never be liable under § 1983 for the acts of those officials whom the local government has no authority to control,"²² the Eleventh Circuit held that Clayton County could not be held liable under 42 USC § 1983 for the sheriff's improper maintenance of the Criminal Justice Information System network because the county had no control over the sheriff's performance of this function.²³ As the appeals court presciently noted, "[t]he counties' lack of authority and control over sheriffs explains why counties have no § 1983 liability for their conduct. For example, if a rogue sheriff adopted an unconstitutional law enforcement policy or practice, the county has no authority to prevent or alter it and, in turn, incurs no § 1983 liability for it."²⁴

Although Grech is not binding precedent, we find its reasoning very persuasive. Moreover, the Supreme Court of Georgia has recently reaffirmed that "[t]he sheriff is an elected constitutional county officer and not an employee of the county commission."²⁵ The sheriff's duties include those that "necessarily appertain to his office, such as the power to make arrests, to maintain the peace and to enforce the law."²⁶ Although the county commission sets the sheriff's budget, the commissioners "may not dictate to the sheriff how that budget will be spent in the exercise of his duties."²⁷ In addition, deputy sheriffs are deemed employees of the sheriff, not the county, and the county cannot be held vicariously liable for the negligence of the sheriff's deputies.²⁸ The sheriff alone has the power to hire and fire his deputies and jailors.²⁹ Further, only the Governor is authorized to suspend a Georgia sheriff.³⁰ We therefore conclude, as did the Eleventh Circuit in Grech, that the Constitution has made the sheriff independent from the County, notwithstanding the designation of the sheriff as a "county officer."³¹

Nevertheless, the question of whether the sheriff has final policymaking authority for the County for § 1983 purposes must be examined in light of the particular function at issue.³² We thus reexamine the allegations in the complaint. Mrs. Brown asserts that Dorsey was the final policymaker for the county in matters concerning the use of deadly force by sheriff's department personnel, the direction and control of deputies and jailors, and the direction, control, and use of sheriff's department materials, equipment and resources. But, as noted above, the County has no control over the sheriff's department personnel, including its deputies and jailors. Therefore, the County cannot be held liable under § 1983 for Dorsey's use of those personnel in connection with his heinous plot to kill Derwin Brown. Finally, even though the county commission approves the sheriff's budget,³³ and the sheriff has the duty to preserve county property from injury or waste,³⁴ the county cannot control how the sheriff spends the budget.³⁵ In the absence of the ability to control the funds after they have been allocated, the...