Leitgeb v. Kelley, Civil Action No. 2:06-CV-0034-RWS.

• Decision Date: 06 March 2007
• Docket Number: Civil Action No. 2:06-CV-0034-RWS.
• Citation: 510 F.Supp.2d 1227
• Parties: Lawrence LEITGEB, Dan Roberts, Nelson Waller, Robert Clarkson, individually, and Robert Clarkson, as representative of the class of flag supporters, Plaintiffs, v. Brenda KELLEY, Gary Steppe, Jerry Steele, Curtis Waters, Dr. Elizabeth Pinkerton, James Thomas, Debbie Horton, Elaine Defoor, George Payne, Stephens County School System, Michael Crawford, Richard Bridgeman, Tom Law, and the Toccoa Record, Defendants.
• Court: U.S. District Court — Northern District of Georgia

510 F.Supp.2d 1227

Lawrence LEITGEB, Dan Roberts, Nelson Waller, Robert Clarkson, individually, and Robert Clarkson, as representative of the class of flag supporters, Plaintiffs, v. Brenda KELLEY, Gary Steppe, Jerry Steele, Curtis Waters, Dr. Elizabeth Pinkerton, James Thomas, Debbie Horton, Elaine Defoor, George Payne, Stephens County School System, Michael Crawford, Richard Bridgeman, Tom Law, and the Toccoa Record, Defendants.

Civil Action No. 2:06-CV-0034-RWS.

United States District Court, N.D. Georgia, Gainesville Division.

March 6, 2007.

COPYRIGHT MATERIAL OMITTED

Lawrence Leitgeb, Toccoa, GA, Pro se.

Dan Roberts, Toccoa, GA, Pro se.

Nelson Waller, Anderson, SC, Pro se.

Robert Clarkson, Anderson, SC, Pro se.

Christopher D. Balch, Terry O. Brantley, Sarah E. Tollison, Swift Currie McGhee & Hiers, Devon Orland, Thurbert E. Baker, Office of State Attorney General, Atlanta, GA, David Eugene Hudson, Hull Towill Norman Barrett & Salley, Augusta, GA, for Defendants.

ORDER

RICHARD W. STORY, District Judge.

Now before the Court are (1) Defendants. Law and the Toccoa Record's Motion to Dismiss [3]; (2) Defendants Crawford and Bridgeman's Motion to Dismiss [6]; (3) Defendants Thomas, Payne, Kelley, Steppe, Steele, Waters, Pinkerton, Horton, Defoor, and Stephens County School System's Motion to Dismiss [21]; (4) Plaintiffs' Motion to Compel [35]; (5) Plaintiffs' Motion for Extension of Time to Answer the Interrogatories of Defendants [43]; (6) Defendants Crawford and Bridgeman's Motion for Protective Order and Motion to Stay Discovery [46]; (7) Plaintiffs' Motion to Compel Answers of Interrogatories and Production of Documents and Evidence [51]; and (8) Plaintiffs' Motion for Reconsideration [60]. After considering the entire record, the Court enters the following Order.

Background

This case comes before the Court on Defendants' various motions to dismiss. Therefore, the facts as stated herein are taken from Plaintiffs' Complaint, and assumed to be true. Plaintiffs Lawrence Leitgeb, Robert Clarkson, Dan Roberts, and Nelson Waller are members and organizers of groups which actively support and advocate for the display of the Confederate flag in general, and incorporation of the Confederate flag into the Georgia state flag in particular.¹ (See Compl. ¶¶ 9-12.) In March of 2004,² Plaintiffs organized and participated in a "flag rally" at Stephens County Middle School, where Defendant Kelley was employed as Principal. (Id. ¶.) While not entirely clear from the Complaint, it appears that, at some point during the rally, Mr. Leitgeb was arrested on charges for which he would later stand trial. (See id. ¶¶ 20, 34, 36; Pls.' Resp. in Opp'n to Mot. to Dismiss [23] ¶ 19.) Sometime after the rally, on March 23, 2004, the Toccoa Record, a local, bi-weekly newspaper, ran an article headlined "Principal Receives Death Threat." (Compl.¶ 19.) The article pictured Ms. Kelley with a caption which read: "Stephens County Middle School principal Brenda Kelley has received a threatening email concerning the Confederate flag issue at her school." (Id.) Additionally, the article quotes Ms. Kelley as saying that she received an anonymous email stating: "Here I come. The time is now. Put the flag back and I will not kill you in your office." (Id.) Underneath the article was a picture of the March 2004 flag rally at Stephens County Middle School with Mr Clarkson in the center and Mr. Roberts in the background. (Id.)

On December 16, 2004, Ms. Kelley was called to testify in Mr. Leitgeb's criminal trial. (Id. ¶ 20.) While appearing as a witness, she testified under oath as follows:

That was the line that I had put up with the flyers that came to our school, the hate mail that came to me personally threatening my life, where I could not even go up town on school business that I didn't come back, to my computer with all this stuff on my computer about killing me and my family.

(Id.)

Based on these events, Plaintiffs initiated this action in March of 2006 against Ms. Kelley, Gary Steppe, Superintendent of Stephens County Schools, Stephens County School Board members Jerry Steele, Curtis Waters, Elizabeth Pinkerton, James Thomas, Debbie Horton, Elaine DeFoor, and George Payne, (collectively, the "School Board Defendants"); the Stephens County School System; Stephens County District Attorney Michael Crawford, and Assistant District Attorney Richard Bridgeman; as well as the Toccoa Record, and its publisher, Tom Law. In their five-count, pro se Complaint, Plaintiffs assert claims under (1) 42 U.S.C. § 1983 for violation of their rights under the First, Fifth, and Fourteenth Amendments; (2) 42 U.S.C. § 1985 based upon an alleged conspiracy to violate their civil rights; and (3) state law for intentional infliction of emotional distress, slander, defamation, perjury, and false imprisonment.³

Defendants have moved to dismiss all claims for various reasons, and the Court will address those motions first. In considering these motions, the Court will first address Plaintiffs' federal law claims, turning only to Plaintiffs' state law claims if the Court determines that exercise of jurisdiction over those claims would be appropriate. Finally, if the Court concludes that valid claims remain in this action, the Court will address the various discovery motions currently pending before it.

Discussion

I. Defendants' Motions to Dismiss

A. Applicable Legal Standard

As stated above, these issues come before the Court on Defendants' Motions to Dismiss under Federal Rule of Civil Procedure 12. Consequently, the Court accepts as true the allegations set forth in the Complaint, and construes them in the light most favorable to Plaintiffs as the nonmovants. Cooper v. Pate, 378 U.S. 546, 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964); Conner v. Tate, 130 F.Supp.2d 1370, 1373 (N.D.Ga.2001). Motions to dismiss may be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Nevertheless, when, under applicable law the Court concludes that a particular claim is not viable, it "must be dismissed, without regard to whether it is based on an outlandish legal theory or on a close but ultimately unavailing one." Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).

B. Federal Claims

Plaintiffs allege that Defendants have violated their federally protected constitutional rights. Specifically, Plaintiffs allege that (1) Ms. Kelley, through the publication of her statement in the Toccoa Record and her trial `testimony, violated their rights under the First, Fifth, and Fourteenth Amendments; (2) the School System Defendants are liable for these constitutional violations under the doctrine of respondeat superior; and (3) that Ms. Kelley and the District Attorney conspired to violate their civil rights by presenting Ms. Kelley's allegedly perjurious testimony at Mr. Leitgeb's criminal trial and/or refusing to prosecute Ms. Kelley for that alleged perjury. For the reasons that follow, each of these claims fails as a matter of law.

1. Claims against Defendants Crawford and Bridgeman

While it is far from clear from Plaintiffs' Complaint and other filings, it appears that Plaintiffs assert claims against Defendants Crawford and Bridgeman under 42 U.S.C. § 1983 and/or § 1985 based upon their failure to prosecute Ms. Kelley on charges of perjury arising out of her testimony as a witness in Mr. Leitgeb's criminal trial. These claims fail as a matter of law, however, because a prosecutor is entitled to absolute immunity when acting within the scope of his prosecutorial duties. Imbler v. Pachtman, 424 U.S. 409, 427, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). Prosecutorial duties include the initiation and pursuit of criminal prosecutions. Id. at 431, 96 S.Ct. 984; Rivera v. Leal, 359 F.3d 1350, 1353 (11th Cir.2004) (explaining that prosecutors are entitled to absolute immunity for all actions taken while performing prosecutorial function, which includes initiation and pursuit of criminal prosecutions, and most court appearances including examination of witnesses and presentation of evidence); Elder v. Athens-Clarke County, 54 F.3d 694, 695 (11th Cir.1995) ("A prosecutor's decision to bring charges against a person, so long as the prosecutor is acting within the scope and territorial jurisdiction of his office, is immune from an action for damages under § 1983."). Thus, a prosecutor's decision `to bring charges and prosecute an offense falls squarely within his prosecutorial duties. As such, Defendants Crawford and Bridgeman are absolutely immune from suit for any federal claims arising out of their failure to bring charges of perjury against Ms. Kelley.⁴ Accordingly, Plaintiffs' claims against Defendants Crawford and Bridgeman under 42 U.S.C. §§ 1983 and 1985 are DISMISSED.

2 Claims against Ms. Kelley and the School Board Defendants

a. Section 1983 claims

i. Individual capacity claims

Turning first to their claims against Ms. Kelley, Plaintiffs' allege that her statement to the Toccoa Record that she had received an anonymous, threatening email, as well as her allegedly perjurious testimony at Mr. Leitgeb's criminal trial, violated their rights under the First, Fifth and Fourteenth Amendments. These claims fail as a matter of law.

First, Plaintiffs cannot prevail on claims under § 1983 based upon Ms. Kelley's allegedly perjurious testimony at Mr. Leitgeb's criminal trial. It is well-established that an individual who testifies as a witnesses in judicial proceeding is absolutely immune `from suit under § 1983. See Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983); Jones v. Cannon, 174 F.3d 1271, 1282 (11th Cir. 1999). This immunity applies whether the testifying individual is a public official or a private citizen. Briscoe, 460 U.S. at 326, 103 S.Ct. 1108 (holding tha...