Rock v. Lowe

• Decision Date: 14 July 1995
• Docket Number: Civ. A. No. CV693-119.
• Citation: 893 F. Supp. 1573
• Parties: James Kelsey ROCK, Plaintiff, v. Gordon LOWE and the Mayor and City Alderman of the City of Statesboro, Georgia, Defendants.
• Court: U.S. District Court — Southern District of Georgia

893 F. Supp. 1573

James Kelsey ROCK, Plaintiff, v. Gordon LOWE and the Mayor and City Alderman of the City of Statesboro, Georgia, Defendants.

Civ. A. No. CV693-119.

United States District Court, S.D. Georgia, Statesboro Division.

July 14, 1995.

COPYRIGHT MATERIAL OMITTED

Randall Arthur Schmidt, Savannah, GA, for plaintiff.

Brent Jamieson Savage, Savage & Turner, Savannah, GA, for defendants.

ORDER

EDENFIELD, Chief Judge.

I. Introduction

Plaintiff James Kelsey Rock was arrested, indicted, and held without bond for over four months as a result of an armed robbery for which he was later acquitted. Rock contends that had the arresting officer timely revealed the statement of an exculpatory witness, Rock never would have been arrested and incarcerated. Rock has sued the arresting officer, Lt. Gordon Lowe of the Statesboro Police Department, and the Mayor and City Alderman of Statesboro, Georgia, for damages resulting from his arrest and incarceration. Rock claims Defendants violated his rights under the Fourth, Fifth, Eighth, and Fourteenth amendments to the U.S. Constitution and his rights under Article I, § 1, ¶ I, XIII, and XVII of the Georgia Constitution. This case is presently before the Court on Defendants' Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons discussed below, the Court GRANTS the Defendants' motion and denies Rock's claims.

II. Facts

Late one Sunday morning Norman Ellerbeck, an employee of Time Saver Minit Market Number 33, drove to Farmers & Merchant's Bank at the College Plaza in Statesboro to make a deposit of almost $6,000 to his company's account at the bank's drive-through window. As he got out of his El Camino to deposit the bank money bag in the night depository slot, he was approached by a man he described as being a

black male 5'9" tall approx. 175 lbs. short hair wearing dark pants med. dark blue wind breaker clean shaven med. dark, complexion age middle twenties.

Ellerbeck, Stmt. at 1. Apparently, when Ellerbeck saw that the man had a pistol, he made the mistake of calling it a toy at which point the assailant fired the weapon at the pavement. With new respect for the pistol, but still undaunted, Ellerbeck refused to let the assailant take his company's money. A struggle ensued and the robber fired his pistol again. Apparently, this was enough to distract the fearless Ellerbeck long enough so the robber could grab the money bag and run. Shaken up but uninjured, Ellerbeck got in his car, drove to the nearest Time Saver Minit Market and called the police.

Lt. Lowe responded to the call. Lowe took Ellerbeck's statement and then took the statement of another witness, Katie Spicer. Spicer first gave Lowe an oral account of what she saw and later provided a written statement. These statements are the basis of this lawsuit. The statements are substantially the same except that in her oral account she says that at the time of the robbery she was standing in front of a Piggly Wiggly grocery store approximately 100 yards from the bank's drive-through window, whereas in her written statement she says she was standing at the bank's automaticteller machine approximately 50 yards from the drive-through window.

In both statements Spicer reports that she saw a "young black male wearing dark shorts and a very faded short sleeved shirt" and carrying a gym bag run away from the bank close to the time of the robbery. She described the size of the black man by stating: "I am 5'2" and weigh 102 lbs. — the black guy couldn't have been much bigger than I am." Spicer Stmt. at 1.

In addition to taking Spicer's and Ellerbeck's statements, Lowe recovered one brass 9 mm shell casing in the bed of Mr. Ellerbeck's El Camino. He also discovered one silver 9 mm bullet casing on the ground near the bank and two lead fragments on the floor board of Ellerbeck's car.

In his affidavit Lowe states that the next day he met with the Bulloch County District Attorney and discussed both Ellerbeck's and Spicer's statements with him. Lowe Aff. at ¶ 9. That night the Bulloch County Sheriff's Department received information from a confidential informant that Rock was the individual who had robbed Ellerbeck. This was corroborated the next morning by a second confidential informant who allegedly told Lowe that Rock had been involved in the robbery and that he had a "bank bag with a lot of money in it." Lowe Aff. ¶ 11.

Four days after the robbery, the Bulloch County Sheriff's Department responded to a shooting at the Foxridge Apartments in Statesboro. Apparently, Rock and a friend were fired upon by three other individuals. Although Rock had a 9 mm pistol with him, allegedly Rock did not return fire because he did not have any ammunition. The Sheriff's Department apprehended Rock, confiscated his pistol, and took his statement. Def.Exh. 8 & 9. Rock also signed a property receipt admitting ownership of the weapon.

When Lowe learned of the shooting the next morning from the Sheriff's Department he had the shell casings and Rock's pistol sent them to the Georgia Bureau of Investigation crime lab in Savannah. After analyzing the pistol and the shells, the crime lab concluded that Rock's pistol had been used in the armed robbery of Ellerbeck.

Three weeks after the robbery, Ellerbeck identified Rock in a photograph line-up administered by Lowe. That same day, Rock reported to the Sheriff's Department that he had lost $1,792 in cash. Rock contends that he left the money on the roof of his car while he was parked in front of the Time Saver Minit Market in which Ellerbeck worked. After driving off he discovered what he had done and returned to the store to report the lost money. Rock alleges he spoke to Ellerbeck and that Ellerbeck did not appear to recognize him.

A month after the robbery Lowe appeared before Magistrate Judge Billy Joe Deal to obtain a warrant for the arrest of Rock. In support of his affidavit, Lowe provided the magistrate with Ellerbeck's statement and explained that Ellerbeck had identified Rock as his assailant in a photograph line-up. Lowe also provided the magistrate with the GBI report matching Rock's pistol to the shell casings Lowe found at the crime scene. Last, Lowe submitted Rock's property claim in which Rock reported losing the $1,792 in cash. Lowe Aff. ¶ 17. Based on this information, Magistrate Judge Deal signed Rock's arrest warrant.

On December 2, 1991, Rock was arrested. Two days later Rock appeared before Magistrate Judge Deal at a preliminary/bond hearing where the magistrate denied bond. On December 11, 1991, a second hearing was held, this one before Judge Neville of the Bulloch County Superior Court. Only Lowe and Ellerbeck testified. Although Lowe mentioned that there was an additional witness to the crime, he asserted that the description of the assailant offered by the second witness was consistent with Ellerbeck's. After hearing the evidence against Rock, Judge Neville found that there was probable cause to bind Rock over to the grand jury on the charge of armed robbery. Judge Neville also denied bond based on both the seriousness of the crime and the fact that Rock had been involved in another shooting four days after the robbery.

On February 4, 1992, the grand jury issued an indictment for armed robbery. Rock was arraigned on February 19, 1992, where he pled not guilty. In response to discovery motions that Rock's attorney filed, the district attorney produced Spicer's written statement. On April 13, 1992, Rock was released on bond and on April 28, 1992, he was acquitted. Rock filed this lawsuit eighteen months later on November 23, 1993.

III. Summary Judgment Standard

To prevail on its summary judgment motion, the Defendants must demonstrate to the Court's satisfaction no genuine issues of material fact exist and that the Court can render a judgment as a matter of law, thus obviating the need for a trial. Great Lakes Dredge and Dock Co. v. Miller, 957 F.2d 1575, 1578 (11th Cir.1992) (citing Celotex Corp v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)) cert. denied, Chevron Transport Corp. v. Great Lakes Dredge & Dock Co., ___ U.S. ___, 113 S.Ct. 484, 121 L.Ed.2d 388 (1992).

In assessing whether the movant should prevail in a motion for summary judgment, the Court must review the evidence and all reasonable factual inferences arising from it in the light most favorable to the nonmoving party. Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir.1992). The Court must avoid weighing conflicting evidence, Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986); Brown v. Hughes, 894 F.2d 1533, 1536 (11th Cir.1990), cert. denied, 496 U.S. 928, 110 S.Ct. 2624, 110 L.Ed.2d 645 (1990), or making credibility determinations. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513-14; McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930, 934 (11th Cir.1987).

A mere "scintilla" of evidence, however, will not suffice to support the nonmovant's position. See, e.g., Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990). Essentially, if the submissions of the parties could not prompt a rational trier of fact to find for the nonmovant, there is no genuine issue for trial. Matsushita Elec. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

IV. Analysis

A. Federal Claims Under Section 1983

Counts One and Two of Rock's suit rest on Section 1983 which "provides a remedy against `any person' who, under color of state law, deprives another of rights protected by the Constitution."¹ Collins v. City of Harker Heights, 503 U.S. 115, 120-21, 112 S.Ct. 1061, 1066, 117 L.Ed.2d 261, 270 (1992). "Persons" liable under § 1983 include municipalities and other local government entities as well as individuals. Monell v. New York Dept. of Social Services, 436 U.S. 658, 690, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611 (1978).

Section 1983...