Means v. City of Atlanta Police Dept., A03A1384.

• Decision Date: 12 August 2003
• Docket Number: No. A03A1384.,A03A1384.
• Citation: 262 Ga. App. 700,586 S.E.2d 373
• Parties: MEANS v. CITY OF ATLANTA POLICE DEPARTMENT et al.
• Court: Georgia Court of Appeals

586 S.E.2d 373

262 Ga. App. 700

MEANS v. CITY OF ATLANTA POLICE DEPARTMENT et al.

No. A03A1384.

Court of Appeals of Georgia.

August 12, 2003.

Phyllis A. Watkins, Decatur, Walter L. Fortson, for appellant.

Linda K. DiSantis, Atlanta, Jerry L. DeLoach, Memphis, TN, Serena L. Sparks, Franklin W. Thomas, Jr., for appellees.

MIKELL, Judge.

Michael Means filed the underlying action against Sydell, Inc., d/b/a Spa Sydell and Richard Blahnik asserting claims of defamation, malicious prosecution, and false imprisonment. Means later added the City of Atlanta Police Department, Chief Beverly Harvard, and Detective Shirley Eppinger and amended his complaint to assert claims for violations of 42 USC § 1983 and the Fourteenth Amendment. Means dismissed his claims against Sydell, Inc., d/b/a Spa Sydell, and Blahnik. The trial court granted summary judgment to the remaining defendants. Means appeals. For reasons explained below, we affirm.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the non-moving party, warrant judgment as a matter of law. OCGA § 9-11-56(c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case.... Our review of an appeal from summary judgment is de novo.

(Citations omitted.) Vasquez v. Smith, 259 Ga.App. 79, 576 S.E.2d 59 (2003). See also Willett v. Russell M. Stookey, P.C., 256 Ga. App. 403, 410, 568 S.E.2d 520 (2002).

Viewed in favor of Means as the nonmoving party, the record shows that in May 1999, former defendant Sydell, Inc., owned and operated several spas in the Atlanta area including a spa located at 3060 Peachtree Road, Atlanta, Georgia ("Buckhead Spa Sydell"). Means, a black male, and owner of a Jani-King franchise, provided cleaning and janitorial services to Buckhead Spa Sydell. On Monday, May 10, 1999, Paul Miller, front desk supervisor for Buckhead Spa Sydell, discovered that a weekend deposit of funds in the approximate amount of $6,000 was missing from a locked cabinet where deposits were held until they could be deposited the following business day. Miller reported his discovery to management, who then reported it to Blahnik, executive director of operations for Sydell, Inc. Blahnik's duties at Sydell, Inc., included "loss prevention."

During his investigation, Blahnik identified Tima Aimbez as the cashier responsible for the deposit, confirmed that approximately $2,000 in cash and $4,000 in checks was missing, and discovered that ceiling tiles, which concealed a security camera in the front checkout area, had been disturbed. Only Blahnik and the director of Buckhead Spa Sydell knew about the security camera. Even though the security camera was operational in May 1999, it had not been turned on the evening of May 8, 1999. Blahnik testified that 12 people had master keys which allowed access to the locked office and locked cabinet; all 12 of these people were Caucasian. Blahnik interviewed Aimbez, Miller, and the five managers who had master keys; Blahnik did not interview the executive officers of Sydell, Inc. who had grand master keys to all spa locations. In his report, Blahnik noted that Aimbez observed one deposit bag while placing the second inside the cabinet. Aimbez then locked the cabinet and office door and exited. During his interview of Bridgette Linder, opening manager on the morning of Sunday, May 9, 1999, Blahnik learned that Linder recalled seeing only one bag of deposits. According to Blahnik there should have been two deposits on Sunday morning since Buckhead Spa Sydell runs two registers on Saturdays and Sundays' deposits are not reconciled until Monday morning.

Blahnik also interviewed Means, who had cleaned the building on the night of May 8, 1999. An investigative report prepared by Blahnik named Means as the prime suspect in the theft. According to this report, Blahnik's accusation was based on the following observations: (1) even though he had never been given a single detail about the incident, Means knew the amount of cash allegedly stolen; (2) he knew the incident took place on Saturday evening; and (3) he claimed to have observed several ceiling tiles out of place that Saturday evening. Further, Means was the only person in the building the night of May 8, 1999, and his body language during the interview was very suspicious. Finally, even though he was neither accused nor informed that he was a suspect until after Blahnik discovered that Means had mistakenly been given a master key, Means requested an attorney at least three times during and after the interview.

According to Means' recollection of the interview with Blahnik, Means did not feel intimidated, and he asked to consult with an attorney only once during the interview and never spoke to Blahnik again. Means also denied making any of the statements noted by Blahnik in his investigative report. Means recalled mentioning to Blahnik that a ceiling tile in the back area of the building was out of place.

Sandy Benton, finance manager for Sydell, Inc., reported the theft to the City of Atlanta Police Department ("APD") on May 10, 1999. The report was assigned to Eppinger, a 19-year veteran detective of the APD. On May 12, 1999, Blahnik faxed to Eppinger a copy of his investigative report, which implicated Means as the prime suspect. Blahnik also implicated Means during a telephone conversation with Eppinger. During her investigation, Eppinger did not visit Buckhead Spa Sydell and did not conduct any interviews.

Believing that she had probable cause to issue an arrest citation, Eppinger called Jani-King and left a message for Means. Means returned the call and told Eppinger to contact his attorney. Eppinger explained the situation to Means' attorney who agreed to a court date in order to obtain fingerprints. On May 28, 1999, Eppinger issued an arrest citation for Means. Eppinger testified that she used what she had been told by Blahnik as well as Blahnik's report as probable cause to issue the arrest citation. According to Eppinger, at the time the arrest citation was issued, Eppinger was not required to go before a magistrate. Eppinger then contacted Means by telephone to advise him of the arrest citation.

According to Means, Eppinger told him to come pick up the citation or a warrant for his arrest would be issued; Eppinger testified that she never called Means to demand that he come pick up the arrest citation. Later that day, Means and his wife went to the police department to pick up the citation; Means was not handcuffed, taken into custody, or interrogated. Means and his attorney appeared for an initial hearing on June 14, 1999. It appears that hearing was rescheduled. Several days later Means and his attorney appeared at a second hearing, at which time Means agreed to waive the preliminary hearing.¹ Means was then processed by police and placed in a holding cell to await photographing and fingerprinting. Means remained in the cell for eight to ten hours until he was released on his own signature bond.

Means continued to clean the building until Buckhead Spa Sydell terminated his contract in June 1999. On May 11, 2000, Means was indicted by the grand jury for theft by taking. In June 2000, his case appeared on a plea and arraignment calendar. On July 17, 2000, Means was told that his criminal case had been dead docketed.

Means filed suit against Sydell, Inc., d/b/a Spa Sydell and Blahnik on April 14, 2000. On July 18, 2001, the trial court granted Means' motion to join APD, Harvard, and Eppinger as defendants; Means filed an amended complaint adding these defendants on October 3, 2001. On November 8, 2001, Means dismissed with prejudice defendants Sydell, Inc., d/b/a Spa Sydell and Blahnik. The remaining defendants filed a motion for summary judgment on August 7, 2002, and the trial court granted it, concluding that (1) the APD is not a legal entity capable of being sued; (2) Means' 42 USC § 1983 claim fails because there has been no showing of a pattern, practice, or policy of the municipality which gives rise to the alleged injury; (3) the city is immune for the torts of its police employees under OCGA § 36-33-3; (4) the individual defendants are entitled to official immunity under OCGA § 36-33-4 because there is no evidence of wilfulness, fraud, malice, or a knowing wrongful act; and (5) there is no evidence Means complied with the ante litem notice requirements of OCGA § 36-33-5.

1. Means' brief makes no argument about the viability of his state claims against any of the defendants in their official or individual capacities; therefore, we will not address this issue and will assume that Means agrees with the trial court's ruling on this issue.² Accordingly, we only address Means' claims under 42 USC § 1983.

2. In his enumeration of errors, Means argues that even though the City of Atlanta was not specifically named in the lawsuit it is still liable because a suit against an official in his or her official capacity is a claim against the municipality. Therefore, by raising a claim against Harvard and Eppinger, he has sufficiently raised a claim against the City of Atlanta. Further, because he was arrested without probable cause in violation of the Fourth and Fourteenth Amendments of the U.S. and Georgia Constitutions, Means should be allowed to proceed with his claim under 42 USC § 1983.

We agree that even though the City of Atlanta is not a named defendant in this action, Harvard and Eppinger were sued in their official capacities; therefore, Means' claims are, in essence, claims against the City of Atlanta. See Gilbert v. Richardson, 264 Ga. 744, 746(2), n. 4, 452 S.E.2d 476 (1994). We also agree with d...