Heinisch v. Bernardini
| Decision Date | 28 September 2015 |
| Docket Number | CASE NO. CV414-221 |
| Parties | AMANDA HEINISCH, individually and on behalf of her minor child, K.S., Plaintiff, v. ALEX CHRISTOPHER BERNARDINI; REBECCA G CROWE; and BRYAN COUNTY, GEORGIA; Defendant. |
| Court | U.S. District Court — Southern District of Georgia |
Before the Court is Defendants Rebecca G Crowe and Bryan County, Georgia's Motion to Dismiss. (Doc. 32.) For the following reasons, the motion is GRANTED. As a result, Plaintiff's claims against Defendants Crowe and Bryan County are DISMISSED. Pursuant to Federal Rule of Civil Procedure 15(a)(2), the Court will permit Plaintiff to amend her complaint only with respect to her claims against Defendant Crowe, in her individual capacity, because the Court is unable to rule out the possibility that the " 'underlying facts or circumstances relied upon by [Plaintiff] may be a proper subject for relief,.' " Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1262 (11th Cir. 2004) (quoting Forman v. Favis, 371 U.S. 178, 182 (1962)).Therefore, Plaintiff SHALL have twenty-one days from the date of the order to file a second amended complaint.
This case involves the molestation of a minor.1 Defendant Alex Christopher Bernardini was a member of Savannah Christian Church ("Savannah Christian"), located in Savannah, Georgia. (Doc. 26 ¶ 7.) Additionally, Defendant Bernardini regularly performed volunteer work with Savannah Christian. (Id.) Through his membership and volunteer work, Defendant Bernardini met and began corresponding with K.S., who was under the age of sixteen years at the time. (Id. ¶¶ 8-9.) During their interactions, Defendant Bernardini purported to be seventeen years old.2 (Id. ¶ 10.)
In or around May 2012, Defendant Bernardini had inappropriate sexual contact with K.S. (Id. ¶ 11.) As a result, Defendant Bernardini was arrested and charged with aggravated child molestation and child molestation. (Id. ¶ 13.) Ultimately, Defendant Bernardini pled guilty to one count of child molestation in both Bryan and ChathamCounty, Georgia, and is currently incarcerated at Calhoun State Prison. (Id. ¶ 14.)
According to the amended complaint, Defendant Crowe "released K.S.'s full name and/or failed to redact her name in a description of the crime that was committed against her." (Id. ¶ 16.) Plaintiff alleges claims against Defendant Crowe for negligence per se based on a violation of O.C.G.A. § 49-5-40(b), negligence, and negligent infliction of emotional distress. (Id. ¶¶ 28-40.) Plaintiff contends that Defendant Bryan County is liable for Defendant Crowe's actions under the doctrine of respondeat superior.3 (Id. ¶¶ 41-45.)
In their Motion to Dismiss, Defendants4 argue that Defendant Crowe, in her official capacity, and Defendant Bryan County are entitled to sovereign immunity. (Doc. 32, Attach. 1 at 3.) Additionally, Defendants maintain that O.C.G.A. § 49-5-40 does not apply to either the record made public in this case or these Defendants. (Id. at 6-7.) Finally, Defendants contend that § 49-5-40 does not createa civil cause of action (Doc. 32, Attach. 1 at 8-9); Plaintiff has failed to plead any other viable claim (id. at 9-12); and Defendant Crowe, in her individual capacity, is entitled to official immunity (id. at 12-15).
In response, Plaintiff argues that Defendants waived their immunity when they purchased insurance coverage for these types of claims. (Doc. 34 at 4-5.) In addition, Plaintiff contends that Defendants' conduct falls under § 49-5-40, which provides a civil cause of action for violations. (Id. at 5-8.) Finally, Plaintiff maintains that she has sufficiently pled claims for negligence and negligent infliction of emotional distress, and that Defendant Crowe is not entitled to official immunity. (Id. at 8-12.)
Federal Rule of Civil Procedure 8(a)(2) requires a complaint to contain "a short and plain statement of the claim showing that the pleader is entitled to relief." "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ).5 "A pleading that offers 'labels and conclusions' or a 'formulaic recitation of the elements of a cause of action will not do.' " Id. (quoting Twombly, 550 U.S. at 555). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.' " Id. (quoting Twombly, 550 U.S. at 557) (alteration in original).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Id. (quoting Twombly, 550 U.S. at 570). For a claim to have facial plausibility, the plaintiff must plead factual content that " 'allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.' " Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1261 (11th Cir. 2009) (quoting Iqbal, 556 U.S. at 678). Plausibility does not require probability, "but it asks for more than a sheer possibility that a defendant has actedunlawfully." Iqbal, 556 U.S. at 678. "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.' " Id. (quoting Twombly, 550 U.S. at 557.) Additionally, a complaint is sufficient only if it gives " 'fair notice of what the . . . claim is and the grounds upon which it rests.' " Sinaltrainal, 578 F.3d at 1268 (quoting Twombly, 550 U.S. at 555).
When the Court considers a motion to dismiss, it accepts the well-pleaded facts in the complaint as true. Sinaltrainal, 578 F.3d 1252 at 1260. However, this Court is "not bound to accept as true a legal conclusion couched as a factual allegation." Iqbal, 556 U.S. at 678. Moreover, "unwarranted deductions of fact in a complaint are not admitted as true for the purpose of testing the sufficiency of plaintiff's allegations." Sinaltrainal, 578 F.3d at 1268. That is, "[t]he rule 'does not impose a probability requirement at the pleading stage,' but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1295-96 (11th Cir. 2007) (quoting Twombly, 550 U.S. at 545).
Defendants contend that Defendant Crowe, in her official capacity, and Defendant Bryan County enjoy sovereign immunity with respect to Plaintiff's claims. (Doc. 32, Attach. 1 at 3-6.) Plaintiff argues that Defendants have possibly waived their sovereign immunity by procuring liability insurance that would cover her claims. (Doc. 34 at 4-5.) The Georgia constitution states that "sovereign immunity extends to the state and all of its departments and agencies." Ga. Const. of 1990 art. 1, § 2, ¶ IX(e). This sovereign immunity also applies to counties and can only be waived by an Act of the General Assembly that specifically provides that sovereign immunity is waived and the extent of the waiver. Butler v. Dawson Cty., 238 Ga. App. 808, 809, 518 S.E.2d 430, 431 (1999); see O.C.G.A. § 36-1-4 (). While the Georgia Tort Claims Act waives sovereign immunity with respect to claims against the state, that waiver does not extend to counties. Woodard v. Laurens Cty., 265 Ga. 404, 405, 456 S.E.2d 581, 582 (1995). With respect to counties, the General Assembly has enacted a very limited waiver that includes claims for inverse condemnation based on nuisance, Fielder v. Rice Constr. Co., 239 Ga. App. 362, 368, 522S.E.2d 13, 17 (1999), and damages arising out of the use of any motor vehicle for which a county carried liability insurance, Cameron v. Lang, 274 Ga. 122, 126, 549 S.E.2d 341, 346 (2001) (citing O.C.G.A. § 33-24-51).
Contrary to Plaintiff's assertions, a county's provision of liability insurance does not always waive the county's sovereign immunity for covered claims. O.C.G.A. § 36-33-1 does waive sovereign immunity for claims against municipal corporations that are covered under an insurance policy. This waiver, however, extends only to municipal corporations, not counties. Athens-Clarke Cty. v. Torres, 246 Ga. App. 215, 216, 540 S.E.2d 225, 226 (2000).
The single case cited by Plaintiff provides no support for her position that Defendant Bryan County would have waived its immunity by purchasing liability insurance covering the events in this case. In Gilbert v. Richardson, the injury was the result of a motor vehicle collision involving a county official. 264 Ga. 744, 745, 452 S.E.2d 476, 478 (1994). That court easily determined that in O.C.G.A. § 33-24-51 the General Assembly waived counties' sovereign immunity for damages arising out of the use of any motor vehicle for which a county carried liability insurance. Id. at 748-49, 452 S.E.2d at 480-81. Of course, Gilbert is inapplicable in this case because Plaintiff'salleged injuries are not the result of the use of a motor vehicle. Because Plaintiff has failed to establish Defendant Bryan County waived its sovereign immunity with respect to her claims, Defendants' Motion to Dismiss must be GRANTED with respect to Defendant Crowe, in her official capacity, and Defendant Bryan County.
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