Neville v. Classic Gardens

Decision Date17 January 2001
Docket NumberNo. 400CV190.,400CV190.
Citation141 F.Supp.2d 1377
PartiesSheila Elaine NEVILLE, Plaintiff, v. CLASSIC GARDENS, et al., Defendants.
CourtU.S. District Court — Southern District of Georgia

Savage, Herndon & Pinson, PC, John Charles Watts, Jr., Watts & Watts, Savannah, GA, for Plaintiff.

David R. Smith, Beverly G. O'Hearn, Brannen, Searcy & Smith, R. Clay Ratterree, Ellis, Pinter, Ratterree & Bart, LLP, Walter W. Ballew, III, Walter W. Ballew, III, Barrow &Ballew, PC, Malcolm Mackenzie, III, Weiner, Shearouse, Weitz, Greenberg & Shawe, Joseph P. Brennan, Edward L. Newberry, JR., Brennan & Wasden, Savannah, GA, Carroll G. Jester, Jr., Mozley, Finlayson & Loggins, LLP, Atlanta, GA, Howard M. Lessinger, McLain & Merritt, P.C., Atlanta, GA, Albert J. DeCusati, Lucian Gillis, Jr., McLain & Merritt, PC, Atlanta, GA, Richard A. Rominger, Kristine Booker Shehane, Brennan, Harris & Rominger, Steven E. Scheer, Edward M. Hughes, Callaway, Braun, Riddle & Hughes, PC, Savannah, GA, Eric A. Brewton, Shivers & Associates, Alpharetta, GA, Emily E. Garrard, Chatham County Attorney's Office, R. Jonathan Hart, Lee, Black, Hart & Rouse, PC, Savannah, GA, John C. Jones, Asst. Atty. General, Atlanta, GA, Robert E. Falligant, Jr., Savannah, GA, W. Paschal Bignault, Bignault & Carter, Michael G. Hostilo, Zettler & Hostilo, Christian J. Steinmetz, III, Clark & Clark, Michael L. Edwards, Quillian, Loncon, LLP, Savannah, GA, for Defendants.

Michael George Hostilo, Savannah, GA, Pro se.


EDENFIELD, District Judge.


This case recounts the nightmare that can occur when a criminal steals another's identity and causes the identity-theft victim to be repeatedly arrested and incarcerated. Plaintiff Sheila Elaine Neville brings this wrongful arrest/incarceration action against that criminal, doc. # 73, who is now under F.R.Civ.P. 55(a) default. Doc. # 89.

Neville also contends that Savannah, Georgia area merchants negligently caused her to be re-arrested. Id. She further seeks redress from defense counsel who, through alleged ineffectiveness, contributed to her travails. Doc. # 73 ¶¶ 96-120. Chatham County, she maintains, denied her "certain protected rights" by failing to furnish her with competent counsel. Id. ¶¶ 121-22. And the County's prosecutor, she asserts, violated her rights by delaying her release in bad faith. Id. ¶¶ 73-95.

Claiming, inter alia, absolute immunity, prosecutor/defendant Melanie Higgins moves under F.R.Civ.P. 12(b)(6) to dismiss plaintiff's Complaint against her. Doc. # 4. Since Neville also brings this action against Higgins in her official capacity, she by definition is suing Chatham County, Georgia. See Owens v. Fulton County, 877 F.2d 947, 951 (11th Cir.1989) (for liability purposes, suit against public official in his or her official capacity is considered suit against local government entity he or she represents); 17 MOORE'S FED.PRAC. § 123.40[2] (3rd ed.2000).

Chatham County, then, also moves to dismiss all claims against it, contending that Higgins and its district attorney's office acted on behalf of the State so it (a) is not a "person" within the meaning of 42 U.S.C. § 1983; (b) therefore is entitled to Eleventh Amendment immunity; and in any event (c) enjoys sovereign immunity against Neville's State law claims. Doc. # 4; see also doc. # 22.


Lucille Butler stole Sheila Elaine Neville's identity and used it to write bad checks. Doc. # 73 ¶¶ 21-71.1 "Stiffed" merchants sought Neville's arrest for the bad checks. Id. If those merchants had taken reasonable steps, Neville contends, they would have determined that there was no probable cause to arrest her. Id.

So, she has sued them for, inter alia, false arrest and wrongful incarceration. See, e.g., id. ¶¶ 57-58. Prosecutor Higgins, plaintiff alleges, failed to timely dismiss the charges, then timely communicate the dismissal to Neville's jailers. Id. ¶¶ 76-79. The District Attorney's office dismissed some warrants on 3/19/99, for example, but then failed to communicate that fact to Neville's jailers until 5/18/99. Id. ¶¶ 80-81.

In fact, from 10/7/97-3/13/99, "the District Attorney's office did not take any steps to prosecute [plaintiff] for the warrants issued by [a local municipality]. Instead, the District Attorney's office dragged along the investigation of the claims against [her]." Id. ¶ 82. From [1/8/99] until [5/18/99], the [County] Sheriff's Department wrongfully held [Neville] and failed to take steps to release her from incarceration. Id. ¶ 83.

Higgins, Neville claims, had primary responsibility for the cases against her. Id. ¶¶ 77, 85. By failing to communicate the truth (that Neville was being victimized by Butler's theft of her identity), especially to Neville's attorneys, Higgins caused needless further arrests and incarcerations. Id. ¶ 87-93. On top of all that, plaintiff's defense counsel mishandled her case, also causing needless jail time. Id. ¶¶ 96-121. She blames Chatham County for knowingly appointing demonstrably incompetent counsel to represent her. Id. ¶ 121-22.

All the defendants, plaintiff concludes, "are jointly and separately liable" for the damages she suffered. Id. ¶¶ 123. And some, she contends, also are liable for punitive damages. Id. ¶¶ 124-126.

A. Malicious Prosecution

Suppose a prosecutor, with knowledge that the police have arrested and detained the wrong person for a crime, does nothing for months, even though a simple notice to jailers would have freed the arrestee? Does absolute prosecutorial immunity, as illuminated by Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), apply? How might the arrestee otherwise recover? Cf. Brady v. Dill, 24 F.Supp.2d 129, 134-35 (D.Mass.1998) ("Brady I") (fact issue existed as to whether State troopers knew that the arrestee was not the person named in an arrest warrant, thus precluding summary judgment in their favor in arrestee's § 1983 damages action for his pretrial detention based on claim that the troopers knew he was not the person wanted by the warrant, yet persisted in detaining him).

Correspondingly, what defenses would then exist? Cf. Brady v. Dill, 187 F.3d 104, 115-17 (1st Cir.1999) (reversing Brady I, holding, inter alia, that State troopers were qualifiedly immune from arrestee's claim that they violated his right against unreasonable seizure and his due process rights by detaining him despite coming to believe his protestations of innocence after having arrested him on facially valid warrant; troopers were objectively reasonable in relying on warrant and in failing to release arrestee once they began to believe he was innocent, and only one case of suspect precedential value seemed to support assertion of post-arrest right to be released by law enforcement officials who have come to believe arrestee is innocent).

B. Abandonment Issue

A more preliminary issue emerges, however: whether Neville is even advancing a § 1983 claim. Her initial Complaint made no mention of § 1983, doc. # 1 exh. 1, but she raised it in her 6/30/00 amendment. Id. exh. 3. Yet, she referenced only her initial Complaint in her latest Amended Complaint. See doc. # 73 ¶ 1 ("The Plaintiff incorporates in its entirety along with attachments her complaint filed on April 21, 2000, in the above-styled matter").

One would think that Neville would expressly incorporate her 6/30/00 ("§ 1983") amendment if she wished to preserve her § 1983 claim. For that matter, she conspicuously avoids mention of any constitutional rights deprivations in her latest amendment, but instead references only "certain protected rights." Doc. # 73 ¶¶ 121-22.

This suggests claim abandonment. Cf. Road Sprinkler Fitters Local Union No. 669 v. Indep. Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir.1994) (a district court "could properly treat as abandoned a claim alleged in the complaint but not even raised as a ground for summary judgment"), quoted in Coalition for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1326 (11th Cir. 2000). Nevertheless, the parties' briefs treat the § 1983 claim as extant; therefore, so will the Court.

C. Rule 12/56 Considerations

Plaintiff's brief reads as if the Court transformed the initial Rule 12(b)(6) motion to one sounding under F.R.Civ.P. 56. See doc. # 15 (plaintiffs brief citing to matters outside the Complaint); # 22 (defendants' brief acknowledging, and not objecting to, same); # 29 (plaintiff's supplemental brief continuing to cite to extra-Complaint evidence). This beckons the Court to dispose of this matter under Rule 56, especially since the parties have had constructive notice. See 11 MOORE'S FED. PRAC. § 56.30[4] (3rd ed 2000); Bordeaux v. Lynch, 958 F.Supp. 77, 82 (N.D.N.Y. 1997).

The Court nevertheless elects to reach this matter under Rule 12(b)(6) (no one has formally moved for Rule 56 conversion) because under it Neville is given the greater benefit of the doubt (i.e., the Court assumes arguendo that Higgins delayed plaintiff's release in bad faith).2

D. Immunity Defenses
1. Absolute and Qualified Immunity

Higgins assumes arguendo that Neville states a § 1983 claim over Higgins' actions/inactions, see doc. # 4 at 3-24, then raises various immunity defenses. Those include qualified and absolute immunity:

Qualified immunity is the defense ordinarily available to public officials who are sued under 42 U.S.C. § 1983. Absolute immunity, by contrast, is reserved for the special functions of certain officials that resemble functions that would have been immune at common law when § 1983 was enacted. In determining whether a particular act fits within the common-law tradition of absolute immunity, the Supreme Court takes a "functional approach," examining the nature of the function performed, not the identity of the actor who performed it.

Guzman-Rivera v. Rivera-Cruz, 55 F.3d 26, 29 (1st Cir.1995) (quotes and cites omitted); see also Bolin v. Story, 225 F.3d 1234,...

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