Carter v. Glenn

• Decision Date: 29 March 2000
• Docket Number: No. A99A2429.,A99A2429.
• Citation: 533 S.E.2d 109,243 Ga. App. 544
• Parties: CARTER v. GLENN et al.
• Court: Georgia Court of Appeals

533 S.E.2d 109

243 Ga. App. 544

CARTER v. GLENN et al.

No. A99A2429.

Court of Appeals of Georgia.

March 29, 2000.

Reconsideration Denied April 13, 2000.

James C. West III, Decatur, for appellant.

Hawkins & Parnell, Michael J. Goldman, Atlanta, Michelle D. Coburn, for appellees. SMITH, Judge.

Alleging that a City of Lithonia police officer raped her, Yula Carter brought this action against the City of Lithonia, its mayor Marcia Woods Glenn, its police chief Jerome Woods, two unnamed police officers, and the alleged rapist, Police Officer Paul Wade. She asserted various state law claims as well as a federal civil rights claim under 42 USC § 1983. Wade and the other defendants answered and denied Carter's allegations.¹ After discovery, the city, Glenn, and Woods filed for summary judgment, asserting failure to file ante litem notice under OCGA § 36-33-5 and failure to demonstrate a claim under § 1983. The trial court granted both motions. We affirm the trial court's grant of summary judgment to the city, Glenn, and Woods on Carter's § 1983 claim, because Carter has failed to demonstrate acts in implementation of an intentional city policy or custom encouraging or condoning the commission of rape by its police officers. We also affirm the trial court's grant of summary judgment to the city on Carter's state law claims, because Carter failed to give the required ante litem notice. We must reverse the latter judgment as to Glenn and Woods, however, because the ante litem notice requirement by its terms applies only to the municipality itself.

1. We first consider Carter's § 1983 claims.

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....

42 USC § 1983 (1988). In Monell v. Dept. of Social Svcs. &c., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the United States Supreme Court held that local governments may be sued directly under § 1983 if "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. "But a municipality cannot be held liable solely because it employs a tortfeasor. In other words, there is no respondeat superior liability under § 1983; rather, a plaintiff must point to some official policy or custom which resulted in the injury." (Citations and punctuation omitted.) Watson v. Mayor &c. of Savannah, 223 Ga. App. 399, 401(1), 477 S.E.2d 667 (1996).

The plaintiff "must prove that the City deprived him of a constitutional right pursuant to an impermissible or corrupt policy which is intentional and deliberate." (Citations and punctuation omitted.) Watson, supra at 402, 477 S.E.2d 667. The alleged deficiency "must be closely related to the ultimate injury," because "[i]n virtually every instance where a person has had his or her constitutional rights violated by a city employee, a § 1983 plaintiff will be able to point to something the city could have done to prevent the unfortunate incident." (Citations and punctuation omitted.) Id. at 401-402, 477 S.E.2d 667.

In addition to showing that the constitutional violation causally produced the injury, the plaintiff:

must also demonstrate that, through its deliberate conduct, the municipality was the moving force behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights. Some employee or agent must intend to act or refuse to act based upon such governmental policy.

(Citations, punctuation and emphasis omitted.) Merritt v. Athens Clarke County, 233 Ga.App. 203, 206(2), 504 S.E.2d 41 (1998).

Assuming without deciding that Wade committed the offense and was acting under color of law, no evidence in the record shows that Wade's action was the result of "an impermissible or corrupt policy which was intentional and deliberate." Watson, supra at 402, 477 S.E.2d 667. Here, the police chief testified that the police department did not encourage or promote the commission of sexual assault by city police officers. The city police department policy and procedures manual states that officers are to use courtesy to all individuals and are prohibited from committing any violation of law and from engaging in "conduct on or off duty which has a tendency to destroy public respect for the employee and/or the department and/or destroys confidence in the operation of the city service." Officers also receive 20 hours of police training according to Peace Officers' Standard Training (POST) guidelines. See Lowe v. Jones County, 231 Ga.App. 372, 374(4), 499 S.E.2d 348 (1998). Woods filed an affidavit stating that he was unaware of any complaints of sexual assault, harassment, or rape against Wade or any other Lithonia police officer for five years preceding Carter's alleged rape. In his deposition, Woods testified that Wade applied for a position as patrolman on March 21, 1995, approximately one month before the incident at issue here. Woods testified to the process involved in hiring Wade, including interviewing Wade, performing a criminal history check, calling an investigator at POST council, and calling Wade's former employers. On his job application, Wade disclosed an off-duty altercation with some neighbors in his front yard, resulting in a plea of nolo contendere by him to simple battery. Woods testified that Wade's background check revealed only the neighborhood altercation. Woods also testified that he spoke with several of Wade's superior officers with DeKalb County, who told him that Wade was "a good officer." A captain with the city police department testified that he performed a background check on Wade and also knew him personally from his service with DeKalb County as "a good officer." Some complaints of excessive force on Wade's part were made to the city police department after the alleged rape, and Wade was ultimately terminated by the police department for one of those incidents.

A very lengthy affidavit by an expert witness was filed on behalf of Carter in response to the city defendants' motion for summary judgment. This 44-page affidavit is not in the requisite form and is replete with hearsay, speculation, unsupported conclusions, legal opinions, vociferous argument, and personal remarks directed against the city defendants. Defendants moved to strike this affidavit on the basis of its content. At oral argument, defendants also objected that the affidavit was served upon them after discovery had expired without any response to their interrogatories, served on Carter over one year before, asking for disclosure of any expert witness. They thus had no opportunity to investigate or depose this expert. But we need not reach these issues because the affidavit contains no facts sufficient to establish the required direct causal link between any city policy and Wade's alleged crime. In addition, "no objective guidelines which might have been appropriate or facts which show the department's guidelines and training are inadequate were set out in his affidavit." (Citation, punctuation and emphasis omitted.) Pearson v. City of Atlanta, 231 Ga.App. 96, 100(4)(a), 499 S.E.2d 89 (1998).

In addition to the misdemeanor battery revealed by Wade, the affidavit details complaints of tardiness, allegations of excessive force made to the city, and disciplinary complaints of excessive force filed against Wade in other police jurisdictions before his employment by the city. But these allegations were not known to the city until after the alleged incident with Carter. None of the complaints involved rape, sexual harassment, or any other sexual offense. See Alpharetta First United Methodist Church v. Stewart, 221 Ga.App. 748, 753(3), 472 S.E.2d 532 (1996) (employer not liable for negligent hiring unless it knew or should have known of employee's "propensity for this type of alleged sexual misconduct"). Despite her expert's conclusory assertion that "rape is a violent crime," Carter has established no causal connection between the city's investigation of complaints of excessive force and the alleged crime of rape.

This case is therefore controlled by our recent decision in Thompson v. Chapel, 229 Ga.App. 537, 494 S.E.2d 216 (1997). Chapel, a county police officer, was convicted of the murder of Thompson. The wrongful death action against the county alleged a custom of ignoring standards for hiring and officer conduct on the part of county officials, allowing Chapel to remain on the job and, ultimately, to murder Thompson. The circumstances that the county allegedly ignored included a psychological test showing that Chapel had "anti-social tendencies," a garnishment for failure to pay child support, and an unproved allegation that Chapel conspired to rob a restaurant. We concluded that these incidents did not "cause" the alleged constitutional deprivation, did not constitute a "policy," and did not "provide a causal nexus sufficient to preclude summary judgment or show the requisite deliberate indifference to citizens' rights. At the very least there must be an affirmative link between the policy and the particular constitutional violation alleged." (Citation and punctuation omitted.) Id. at 538-539, 494 S.E.2d 216.

Here, Carter asserts a connection between allegations of excessive force and one admitted instance of simple battery on the one hand, and an allegation of rape on the other. This alleged connection is even more attenuated than...