Response from NJ police officers

8/9/2019 Response from NJ police officers

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

COREY FALLEN,

Plaintiff,v.

THOMAS MCENROE, in hisindividual capacity; JOSEPHHADLEY, in his individual capacity;

and JOHN DOE, in his individualcapacity,

Defendants.

Civil Action No.1:14-CV-03874-ELR

DEFENDANTS’ BRIEF IN SUPPORT OF THEIR MOTION TO DISMISS

Defendants Thomas McEnroe (“McEnroe”) and Joseph Hadley (“Hadley”)

(collectively “Officers”) submit their brief in support of their motion to dismiss

pursuant to Fed. R. Civ. P. 12 (b) (3) and (b) (6). Plaintiff’s claims should be

dismissed as, the Officers are entitled to qualified immunity, the Complaint fails to

state a claim against the Officers, and because venue is improper in this Court.1

FACTUAL BACKGROUND

This is a civil rights case in which Plaintiff sued the Officers individually,

arising from the investigation of the murder of Denise Ramsey, who disappeared

1 The Officers attach affidavits should the Court determine further evidence wouldaid the Court. Hadley’s affidavit is attached as Exhibit A, McEnroe’s at Exhibit B.

Case 1:14-cv-03874-ELR Document 6-1 Filed 12/29/14 Page 1 of 28


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on December 2, 2011, after working at the Doll House in New Jersey. (See

Complaint ). Plaintiff alleges false imprisonment, malicious prosecution and

violation of the Fourth and Fourteenth Amendments of the U.S. Constitution.

McEnroe (not Hadley) was assigned to investigate the murder. His

investigation included interviewing many witnesses, such as Erica Hamilton,

Jasmine Jones and Gary Capone, who worked with Ms. Ramsey the night she

disappeared. (Complaint, ¶ 12, 18, 19). These witnesses reported seeing two

suspicious men engage in a dispute with Ms. Ramsey the night she disappeared;

that they gave her three $100 bills and asked her to bring them 300 $1 bills, but

instead she returned with 100 $1 bills. ( Id. at ¶ 20-21). They reported that the men

threatened to kill Ms. Ramsey and others if their money was not returned. ( Id.).

They reported that one of the men bragged about “beating a murder rap in Atlanta”

and entered the dj booth to announce that. ( Id. at ¶ 20-22, 25).

Ms. Hamilton and Ms. Jones identified Plaintiff and Johnnie Jones (“J.

Jones”) as the two suspicious men seen with Ms. Ramsey that night, and Ms.

Hamilton reported seeing Ms. Ramsey get into a vehicle with both men after her

shift ended the night she disappeared. ( Id. at ¶ 23- 24, 27). Ms. Jones identified

Plaintiff from a photo line-up presented by Hadley, as New Jersey Attorney

General guidelines mandate that photo line-ups be presented by an officer with no



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knowledge of the investigation. (Hadley Aff., ¶ 6). Capone also identified Plaintiff

as the man he saw with Ms. Ramsey before she disappeared. (Complaint, ¶ 27).

The Officers went to Atlanta in September 2012, to gather DNA samples

from Plaintiff and J. Jones. ( Id. at ¶ 35-37).2 Hadley went only to help navigate

the area as he is from Georgia, and to provide help if needed since McEnroe was

approaching an individual possibly involved in a homicide. (Hadley Aff., ¶ 7).

After that trip, the Officers never saw, spoke with, or otherwise communicated

with Plaintiff. (Hadley Aff., ¶ 14, 17; McEnroe Aff. ¶ 19, 21). 3 Jones’ DNA

matched DNA found on a sweatshirt wrapped around Ms. Ramsey’s body and

under her fingernails. (Complaint, ¶ 53).

McEnroe executed an Affidavit in Support of Arrest Warrant (“Arrest

Affidavit”) on October 22, 2012 for Plaintiff for conspiracy to commit murder, and

for J. Jones, whose DNA was found on Ms. Ramsey’s body, for the murder of Ms.

Ramsey. (Complaint, ¶ 53,55; Arrest Aff., ¶ 21). Hadley was not told that

McEnroe was going to seek an arrest warrant; he was not involved in preparing the

2Plaintiff said nothing about his mother, wife or employer verifying his

whereabouts. He stated he had never been to New Jersey, did not know where itwas, and did not want to discuss the investigation. (McEnroe Aff., ¶ 13; HadleyAff., ¶ 8).3 Since Hadley was in Atlanta, he accompanied McEnroe to meet with Anna

Brown, who was in a photo f ound on Ms. Ramsey’s body. (Hadley Aff., ¶ 12).This was the only interview Hadley participated in prior to Plaintiff’s arrest, and

the Complaint does not suggest otherwise. ( Id .).



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Arrest Affidavit; he did not see it before it was submitted to the court; and he did

not testify before any judge or magistrate. (Hadley Aff., ¶ 11). The next day, the

Officers went to Atlanta in connection with the warrants. (Complaint, ¶ 75).

They did not speak with Plaintiff as he turned himself over to local officers after

the Officers left to return to New Jersey. ( Id . at ¶ 77; Hadley Aff., ¶ 14-15, 17).

On November 28, 2012, Plaintiff was extradited to New Jersey. (Complaint,

¶ 83). Plaintiff does not allege that Hadley was on the plane with Plaintiff. ( Id.).

But neither was McEnroe, and in fact the Officers have never taken custody of

Plaintiff. (McEnroe Aff., ¶ 22; Hadley Aff., ¶ 18).

Prior to April 2013, no one told the Officers that Plaintiff was repeatedly

declaring his innocence, or that he had evidence as to his whereabouts the night

Ms. Ramsey disappeared. (Hadley Aff., ¶ 17; McEnroe Aff., ¶ 25). Then, in April

2013, the Officers met with the Essex County Prosecutor to review documents

concerning Plaintiff’s whereabouts the night Ms. Ramsey disappeared.

(Complaint, ¶ 99; Hadley Aff., ¶ 19). They had not seen these documents

previously. (Hadley Aff., ¶ 20; McEnroe Aff., ¶ 25). On April 20, 2013, after the

Officers verified the accuracy of the documents, Plaintiff was released from the

Essex County Jail. (Complaint, ¶ 103).

ARGUMENT AND CITATION OF AUTHORITY

I.

The Standard of Review.



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A motion to dismiss should be granted if it appears beyond a doubt that the

plaintiff can prove no set of facts in support of its claim which would entitle it to

relief. Conley v. Gibson, 355 U.S. 41, 45-46, (1957). In evaluating such a motion,

a court accepts the factual allegations in the complaint as true and construes them

in the light most favorable to the plaintiff. Id.

II.

Count I, Unreasonable Arrest Violating the Fourth Amendment, Should

be Dismissed under the Qualified Immunity Doctrine, and because

Hadley was not Involved in Seeking an Arrest Warrant.

Count I alleges a violation of the Fourth Amendment of the U.S.

Constitution as to Plaintiff’s arrest. (Complaint, ¶ 114). The Officers are entitled

to qualified immunity which shields officers from liability when their conduct does

not violate clearly established constitutional rights of which a reasonable person

would have known. Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982).

Qualified immunity provides “complete protection for individual public

officials performing discretionary functions insofar as their conduct does not

violate clearly established statutory or constitutional rights of which a reasonable

person would have known.” Sherrod v. Johnson, 667 F.3d. 1359, 1363 (11th Cir.,

2012). Qualified immunity allows officers to carry “out their discretionary duties

without the fear of personal liability or harassing litigation, protecting from suit all

but the plainly incompetent or one who is knowingly violating the federal law.”

Festa v. Santa Rosa County, 413 Fed. App’x 182, 184 (11th Cir. 2011). In “all but



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the most exceptional cases, qualified immunity protects government officials

performing discretionary functions from the burdens of civil trials and from

liability for damages.” Means v. City of Atl. Police Dept., 262 Ga. App. 700, 705,

586 S.E.2d 373, 377 (2003) (action asserted federal claim under 42 U.S.C. § 1983).

Because the Officers were acting within their discretionary authority, the

burden shifts to Plaintiff to show that they are not entitled to qualified immunity.

Festa, at 185. In order to meet this burden, Plaintiff must show that the Officers’

conduct amounted to a constitutional violation and that the right violated was

“clearly established at the time of the violation.” Id.

In determining whether a right was violated, courts must consider whether

pre-existing law in effect at the time of the alleged acts provided fair warning to

officers that their conduct was unconstitutional. Id. at 185. If it would be clear to

“any reasonable officer in the same situation” that his actions were

unconstitutional, then there is no immunity, however, if “officers of reasonable

competence could disagree on the issue, immunity should be recognized.” Id.

(quoting Malley v. Briggs, 475 U.S. 335, 341 (2002)).

The “test of ‘clearly established’ law cannot apply at a high level of

generality; instead to deny qualified immunity, ‘the right the official is alleged to

have violated must have been ‘clearly established’ in a more particularized, and

hence more relevant sense.’” Id. (citation omitted).



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In cases alleging unreasonable seizures and unlawful detentions, the

threshold question is whether the officer acted not with probable cause, but merely

“arguable” probable cause. Id. “It is well established in our circuit that when there

is ‘arguable probable cause for an arrest, qualified immunity applies even if actual

probable cause did not exist’. . . Arguable probable cause exists if, under all of the

facts and circumstances, an officer reasonably could - not necessarily would - have

believed that probable cause was present.” Id. at 185-86 (citations omitted). See

also Feliciano v. City of Miami Beach, 707 F.3d. 1244 (11th Cir. 2013).

Probable cause “‘requires only a probability or substantial chance of

criminal activity, not an actual showing of such activity . . . [and] ‘seemingly

innocent activity’ can be the basis for probable cause. [It] does not require

overwhelmingly convincing evidence, but only ‘reasonably trustworthy

information’”. Case v. Eslinger , 555 F.3d 1317, 1327 (11th Cir. 2009) (officer

entitled to rely on allegations of an informant and corroborating evidence as

probable cause).

The protection “applies regardless of whether the government official’s error

is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law

and fact.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotations

omitted). In fact, qualified immunity applies where the officer reasonably but

mistakenly concludes that probable causes exists. Brown v. City of Huntsville,



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Ala., 608 F.3d 724, 734-35 (11th Cir. 2010). As long as the “arresting officer had

arguable probable cause to arrest for any offense, qualified immunity will apply.”

Id. at 735. See also Malley v. Briggs, 475 U.S. 335, 343 (1986) (law enforcement

officers have “ample room for mistaken judgments” before liability is imposed).

a.

McEnroe is entitled to qualified immunity.

The Complaint distorts the facts to create the specter of impropriety by the

Officers, but read carefully, one can discern that McEnroe conducted a proper

investigation which led him to reasonably believe that Plaintiff was involved in

Ms. Ramsey’s murder. For example, McEnroe interviewed Ms. Hamilton, Ms.

Jones, and Mr. Capone, who worked with Ms. Ramsey the night she disappeared

and reported seeing two suspicious men engage in a monetary dispute with Ms.

Ramsey; that the men gave her 3 one-hundred dollar bills and asked her to bring

them 300 one-dollar bills in return, but instead she returned with change for only

$100; that the men then became enraged and threatened to kill Ms. Ramsey; and

that one of the men entered the dj booth to announce that he had just ‘beaten a

murder rap’ in Atlanta. (Complaint, ¶ 19-22, 25).

McEnroe arranged for a photo line-up, during which Ms. Jones identified

Plaintiff as one of the two suspicious men she saw that night. (Complaint, ¶ 27).

Another witness, Mr. Capone, also identified Plaintiff as one of the men arguing

with Ms. Ramsey and threatening to kill people. ( Id.). Ms. Hamilton and Jones



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identified J. Jones as the other man seen with Plaintiff, and Ms. Hamilton reported

seeing Ms. Ramsey get into a vehicle with Plaintiff and J. Jones the night she

disappeared. (Complaint, ¶ 23, 24). Phone records also placed J. Jones near the

Doll House and the area where Ms. Ramsey’s body was found. ( Id. at ¶ 23, 29).

This further establishes probable cause that Plaintiff was involved in Ms. Ramsey’s

murder. See Craig v. Collins, No. 13-1873, 2013 WL 5271521 at *8 (E.D. Pa.

Sept. 17, 2013) (identification of the plaintiff from two witnesses, video that the

defendant resembled the shooter, and an account of a recent altercation between

the victim and the plaintiff sufficient so that the detectives were not required to

investigate further before seeking an application for an arrest warrant”).

McEnroe also obtained DNA samples from Plaintiff and J.Jones which

confirmed that J. Jones was a contributor of DNA found on Ms. Ramsey’s body.

(Complaint, ¶ 53).4 That Plaintiff’s DNA was not found at the crime scene is

irrelevant given witness reports that he and J. Jones were seen with Ms. Ramsey

the night of her disappearance, this providing ample probable cause that Plaintiff

was involved in Ms. Ramsey’s murder, along with J. Jones.

4 While there, Plaintiff said he could not speak to the Officers as his mother wasnot home and he did not have the key to the security door. (McEnroe Aff., ¶ 13).His mother then came by and unlocked the door. ( Id.). Plaintiff made no referenceto working at the time of Ms. Ramsey’s disappearance, nor did he indicate that anyone had any evidence regarding his whereabouts that night. ( Id.). He said hehad never been to New Jersey and did not know where it was. ( Id.).



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The Complaint fails to identify the crime for which Plaintiff was arrested,

and to attach the Arrest Affidavit, though Plaintiff relies on it as the basis for his

claims and recites from it. (See Complaint , ¶ 12-27, 29, 32, 52-53, 56-63, 70, 73).

The warrant sought as to Plaintiff was for the crime of conspiracy to commit

murder only. (Arrest Aff., ¶ 21).5 In contrast, as J. Jones’ DNA was found on Ms.

Ramsey, the arrest warrant for him was for the murder of Ms. Ramsey.

Plaintiff alleges that the Arrest Affidavit “materially misrepresented” the

evidence against Plaintiff, failed to identify the sources of information, failed to

provide information as to how Plaintiff was identified, and omitted “material

information about” the investigation, including the absence of physical evidence

(specifically DNA) of Plaintiff’s involvement in a crime. (Complaint, ¶ 56). The

Arrest Affidavit shows these claims are untrue as it sets forth ample evidence of

arguable probable cause that Plaintiff was involved in Ms. Ramsey’s murder.

Plaintiff’s claim that during the DNA swab, he stated that his mother, wife

and employer could verify that he was not in New Jersey does not vitiate qualified

immunity. First, no such statements were made. Second, even if they were, that a

5 The Arrest Affidavit is attached hereto as Exhibit C and can be considered on amotion to dismiss as it is “central to plaintiff’s claim” and “undisputed.” In Re INGGroup, 749 F. Supp.2d 1388, 1344 (N.D. Ga. 2010); McPhearson v. Anderson, 874F. Supp. 2d 572, at n. 7 (E.D. Va. 2012) (arrest warrant not attached to complaint

but attached to motion to dismiss can be considered by the court withoutconverting the motion to one for summary judgment).



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suspect denies being at the scene of the crime does not suggest lack of probable

cause. If it did, then warrants would never be issued but for the rare occasions

when suspects admit to committing a crime.

The Arrest Affidavit also does not suggest that there was “physical evidence

of [Plaintiff’s] involvement in any criminal act” or that Plaintiff’s DNA was found

at the scene, as Plaintiff alleges. Rather, it identifies only J. Jones as a contributor

of DNA found on Ms. Ramsey’s body. ( Id. at ¶ 20). The Arrest Affidavit, and the

allegations in the Complaint, each establish arguable probable cause to arrest

Plaintiff for conspiracy to commit murder.

b.

Hadley should be dismissed as he was not involved in the

investigation and is entitled to qualified immunity.

The Complaint against Hadley is woefully deficient and fails to state a claim

against him. Indeed, all of the allegations surrounding the investigation leading up

to Plaintiff’s arrest, including executing the Arrest Affidavit, are directed to

McEnroe. (See e.g. Complaint, ¶ 19-22; 25, 27, 31, 34, 52, 55- 63, 67, 70, 83-91).

Hadley was not assigned to, actively involved in, or responsible for

conducting the investigation. (Complaint, ¶ 12 and generally, Hadley Aff., ¶ 5, 6).

Moreover, the Complaint is devoid of allegations that Hadley knew that McEnroe

intended to execute the Arrest Affidavit, was involved in its preparation, saw it

before it was submitted to the court or gave any testimony. In fact, Hadley had no



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involvement. (Hadley Aff., ¶ 11). Moreover, Plaintiff’s generalized allegations

that “upon information and belief” Hadley made no reasonable efforts to prevent

Detective McEnroe from submitting the Affidavit and/or obtaining a warrant for

Plaintiff’s arrest are insufficient to state a claim against Hadley.

Hadley’s role was limited to conducting the photo-line up since he was not

involved in the investigation, and accompanying McEnroe to Atlanta in September

and October as he was familiar with Georgia and to provide assistance if needed.

( Id. ¶ 6-7). He was not involved in witness interviews prior to April 2013 but for

one in Atlanta, and the Complaint does not allege otherwise. ( Id. at ¶ 12).

III. Count II Alleging a Violation of the Fourteenth Amendment should be

Dismissed.

In a Fourteenth Amendment claim of violation of due process, an officer is

immune from liability unless the plaintiff shows that the officer acted with

deliberate indifference.6 Mears v. McCulley, 881 F.Supp.2d 1305 (N.D. Ala. 2012)

(citing West v. Tillman, 496 F.3d 1321 (11th Cir. 2007)). “This means that [the

defendant] had subjective knowledge of a risk of serious harm and disregarded that

risk by actions beyond mere negligence.” Mears, at 1329 (citation omitted).

Where the evidence shows that the officers acts were merely negligent, there is no

6 A § 1983 claim of false imprisonment also requires a showing of facts setting outa prima facie claim for false imprisonment under state law. For the reasons setforth in section IV(a), Plaintiff’s Complaint fails to do so, and for this reasonDefendants’ motion should be granted.



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Fourteenth Amendment claim. Id. at 1328 (citing West at 1327). Here, the

Complaint fails to show that the Officers acted with deliberate indifference with

respect to Plaintiff’s due process rights or that he had a clearly established right

violated under the Fourteenth Amendment.

a. The Officers had no post-arrest contact with Plaintiff, or information

to reasonably believe that any further investigation was necessary

until April 2013.

As set forth above, the Officers neither saw nor spoke with Plaintiff during

their October trip to Atlanta, and they had no information to suggest any further

investigation as to Plaintiff’s involvement in the murder of Ms. Ramsey was

necessary until April 2013. But for the September trip where Plaintiff claims he

said he had never been to New Jersey, the Officers had not spoken with anyone

who told them that Plaintiff was repeatedly declaring his innocence or had

evidence to corroborate his whereabouts the night of the murder. (Hadley Aff., ¶

20; McEnroe Aff., ¶ 25).7 The Complaint fails to allege that Plaintiff was in the

custody of the Officers while held in Atlanta. Thus, even if Plaintiff did have

7 Plaintiff claims that McEnroe (not Hadley) took custody of Plaintiff and

extradited him to New Jersey in November 2012. (Complaint, ¶ 83). This is untrueas McEnroe did not return to Atlanta after October 2012 and was not on the planewith Plaintiff. (McEnroe Aff., ¶ 22). All of the allegations against McEnroeregarding the activities that took place on the plane are false as the Officers nevertook custody of Plaintiff. (McEnroe Aff., ¶ 22; Hadley Aff., ¶ 18).



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some type of “printout” from his employer when he turned himself in to local

officers, as he alleges, it is irrelevant as neither Hadley nor McEnroe knew about it.

Similarly, if Plaintiff protested his innocence while in custody in New Jersey, it

is insufficient to establish a Fourteenth Amendment violation as the Officers were

unaware of these statements. (Hadley Aff., ¶ 20; McEnroe Aff., ¶ 25).8 As such,

there is no evidence of deliberate indifference or the existence of information

which would lead the Officers, or any other reasonable officer, to believe that

further investigation as to Plaintiff’s involvement with the murder was necessary.

Even if Plaintiff denied involvement with the murder or claimed his relatives could

vouch for him (as is common by criminal suspects), that alone does not rise to the

level of deliberate indifference. Due process “does not require that every

conceivable step be taken, at whatever cost, to eliminate the possibility of

convicting an innocent person.” Baker v. McCollan, 443 U.S. 137, 145 (1979).

In April 2013, McEnroe was asked to meet with the Assistant Prosecutor to

review records as to Plaintiff’s whereabouts the night of the murder. (McEnroe

Aff., ¶ 24). After they saw the records, they returned to Atlanta to verify their

reliability and found them to be accurate. ( Id. at ¶ 26). Prior to this time, the

Officers had no reason to believe that further investigation as to Plaintiff’s

8 Plaintiff’s Complaint does not allege that Hadley participated in any of these

alleged communications.



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involvement was necessary. ( Id. at ¶ 25; Hadley Aff., ¶ 20). Plaintiff was

released from jail on April 20, 2013. (Complaint, ¶ 103). The Officers were not

present when he was released. (McEnroe Aff., ¶ 28; Hadley Aff., ¶ 23).

IV.

Plaintiff’s State Law Claims should be Dismissed.

Counts III and IV for false imprisonment and malicious prosecution should

be dismissed because Plaintiff’s arrest and detention were effectuated pursuant to

procedurally valid process; there was probable cause for his arrest; and there is no

evidence that the Officers acted with actual malice or an intent to injure Plaintiff to

warrant exemption from official immunity protection.

This case is not unique. Georgia case law is replete where similar claims

have been levied against officers who while in the performance of their duties

effectuated lawful arrests that ultimately resulted in discharge or exoneration of the

accused. Equally, there is a plethora of Georgia legal authority where courts have

rejected such claims outright for failure of the plaintiffs to meet their legal burden.

Plaintiff’s state law claims against the Officers are no different than the

countless similar claims that have come before his and have died on the sword. In

fact, the court in Franklin v. Consolidated Govn’t of Columbus, 236 Ga.App.468,

512 S.E.2d 352 (Ga. App. 1999) addressed the legal issues raised by Plaintiff here,

on extraordinarily similar facts with identical claims. In Franklin, the court

dismissed the false arrest and malicious prosecution claims of a plaintiff who was



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arrested pursuant to an arrest warrant, failed to show a lack of probable cause for

his arrest and actual malice on the part of the arresting officer. Id . The Franklin

case shows precisely why Plaintiff’s false imprisonment and malicious prosecution

claims should suffer the same fate.

a.

The false imprisonment claim fails as a matter of law.

In Franklin, the victim was robbed while walking into a bank. The

investigating detective obtained a description of the robber from the victim.

Another officer interviewed a fifth witness, a store clerk, who stated that a man

with a similar description to the robber, hurriedly entered the store holding a gun

about an hour before the robbery and the man acted nervous and appeared to be

trying to avoid the store’s video camera. Id . at 468.

Two days later, the officer responded to a report of a man acting “strange”

and “talking crazy” in a health club. The health club employee’s description of the

man was similar to that of the suspicious male who was in the convenience store

shortly before the robbery. Id . at 468-469. Based on this, officers presented a

photo line-up to the robbery victim and the witnesses. Three of the witnesses could

not identify the robber, who wore a mask during the robbery, while the victim and

one witness identified Franklin based on the shape of his face and profile. The

store clerk also identified Franklin as the man who entered the store right before

the robbery with a handgun under his shirt. Id . at 469.



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Based on the identifications, the investigating officer obtained an arrest

warrant for Franklin in December 1994 for aggravated assault and armed robbery.

In the summer of 1995, Franklin’s attorney notified the assistant district attorney

about records from Western Union which might affect the case. In October 1995,

Western Union produced documents relating to Franklin’s alibi, but they did not

establish an alibi for Franklin. In January 1996, Franklin’s attorney gave the

assistant district attorney the first substantial evidence supporting Franklin’s alibi.

Four days later, the State entered a nolle prosequi. Id . at 469.

Franklin sued the city and the arresting officer for, inter alia, false arrest and

imprisonment, malicious prosecution and violations of § 1983, claiming there was

no probable cause to arrest him. The appellate court affirmed the trial court’s grant

of summary judgment to the defendants. Id . at 468-469.

The court in Franklin disposed of the false imprisonment claim on the basis

of the existence of the arrest warrant. Id . at 470-471. The Court expressly noted:

Franklin has no claim for false imprisonment. . .because ‘[w]hen the

detention is predicated upon procedurally valid process, false imprisonmentis not an available remedy, regardless of the motives upon which the

process was secured, because detention effectuated pursuant to

procedurally valid process, such as an arrest warrant, is not ‘unlawful.’Where the arrest is by valid process regularly sued out, action for malicious

prosecution is the only remedy.

Id . at 470 (citing Williams v. Smith, 179 Ga.App. 712, 714, 348 S.E.2d 50 (1986));

see also O.C.G.A. § 51-7-20.



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Here, Plaintiff’s claim of false imprisonment should be dismissed as

Plaintiff’s arrest and detention, like Franklin’s, were effectuated pursuant to an

arrest warrant or procedurally valid process. See also Williams, at 714. There is no

dispute here that Plaintiff’s arrest and detention were made pursuant to an arrest

warrant. (Complaint, ¶ 55). While McEnroe did not effectuate the arrest

personally, Plaintiff voluntarily turned himself in and was arrested pursuant to a

warrant and detained. (Complaint, ¶ 77, 82).

Taking the allegations in the Complaint as true, Plaintiff has failed to state a

claim upon which relief can be granted for false imprisonment because where an

arrest is by valid process an action for malicious prosecution is the only remedy.

O.C.G.A. § 51-7-40; See Franklin, supra.

b.

The malicious prosecution claim also fails as a matter of law.To advance a valid claim for malicious prosecution, a plaintiff must show

prosecution for a criminal offense, instigated without probable cause, with malice,

under a valid warrant, accusation or summons, which has terminated favorably to

plaintiff, and damages. Barnette v. Coastal Hematology & Oncology, P.C., 294

Ga. App. 73, 670 S.E.2d 217, 220 (Ga. App. 2008) citing Wal-Mart Stores v.

Blackford , 264 Ga. 612, 613, 449 S.E.2d 293 (1994).

In Georgia, public agents are immune from liability for their discretionary

acts unless they are done with malice or intent to injure. Marshall v. Browning, 310



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Ga.App. 64, 67, 712 S.E.2d 71, 74 (Ga. App. 2011). The doctrine of official or

qualified immunity protects officers from personal liability for discretionary

actions taken within the scope of their official authority, and done without

willfulness, malice, or corruption. Id .

The court’s initial inquiry on a malicious prosecution claim against public

officers is not whether they acted maliciously [for purposes of the tort of malicious

prosecution], but whether they acted with actual malice. Marshall, supra. Malice

can be inferred by a total lack of probable cause. Id. A lack of probable cause exists

“when the circumstances are such as to satisfy a reasonable man that the accuser

had no ground for proceeding but his desire to injure the accused.” O.C.G.A. §51-7-

3; See also Franklin, supra. The facts and circumstances which amount to probable

cause is a pure question of law. Id. at 470.

1. McEnroe had probable cause for the warrant and arrest of Plaintiff.

The Franklin court rejected the false arrest and malicious prosecution claims

as there was no evidence tending to show a lack of probable cause or malice in

connection with the arrest and imprisonment. Id . To the contrary, the court found

probable cause to arrest the defendant based on the witness descriptions, that he

was identified from a photo line-up, and the victim identified him by his profile

and shape of his face, even though he wore a stocking over his face. Id . at 470.



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Here, McEnroe had probable cause to seek the arrest warrant for Plaintiff.

He uncovered evidence linking Plaintiff to the Doll House and to Ms. Ramsey on

the night she disappeared. Witnesses identified Plaintiff as one of the men who

had a dispute with Ms. Ramsey over money and who threatened to kill people in

the bar. (Complaint, ¶ 20, 21, 27). Witnesses reported that one of the men bragged

about beating a murder rap in Atlanta, which in fact Plaintiff did. ( Id. at ¶ 22).

Ms. Hamilton stated she saw Ms. Ramsey get into a car with Plaintiff the night she

disappeared. (Arrest Aff., ¶ 9). Ms. Jones picked Plaintiff out a photo array as

one of the two men seen together arguing with Ms. Ramsey and threatening to kill

people in the club if he did not get his money back. (Complaint, ¶ 27).

Even more telling, evidence tied Plaintiff to the killer, J. Jones, as coworkers

reported that Plaintiff and J. Jones were together with Ms. Ramsey the night she

disappeared, both had a dispute with her over money; and one threatened to kill her

and patrons if their money was not returned. ( Id. at ¶ 20, 23). Ms. Jones identified

Plaintiff as the other man together with the killer, J. Jones, the night Ms. Ramsey

disappeared. ( Id. at ¶ 23, 27; Arrest Aff., ¶ 9). Ms. Hamilton stated that she saw

Ms. Ramsey leaving work with Plaintiff and J. Jones. (Arrest Aff., ¶ 9). Finally, J.

Jones’ DNA was a match for DNA found under Ms. Ramsey’s fingernails, and on

the sweatshirt wrapped around her body. (Complaint, ¶ 53).



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Much like in Franklin, at the heart of McEnroe’s investigation rests the

eyewitness accounts and positive identification of Plaintiff. The fact that it was later

learned that the witness i.d.’s of Plaintiff (and Franklin) were incorrect does not

mean that probable cause did not exist at the time of the investigation, nor does

McEnroe’s reliance on the mistaken i.d.’s in seeking an arrest warrant indicate

malice or a motivation to harm Plaintiff. See Todd v. Kelly, 244 Ga. App. 404,

407(1), 535 S.E.2d 540 (Ga. App. 2000) (where an officer’s decision to seek

warrants might be characterized as “misguided” there nevertheless was no evidence

that the actions were taken with actual malice for purposes of official immunity).

2. The Officers did not act with any malice at any time and Plaintiffcan produce no evidence tending to show otherwise.

For purposes of official immunity, a showing of actual malice is required on

a claim of malicious prosecution. Taylor v. Waldo, 309 Ga. App. 108, 111(2), 709

S.E.2d 278 (Ga. App. 2011). Actual malice requires a deliberate intention to do

wrong, and denotes express malice or malice in fact. Marshall , supra. Actual

malice does not include implied malice, or the reckless disregard for the rights and

safety of others. A deliberate intention to do wrong to constitute the actual malice

necessary to overcome official immunity must be the intent to cause the harm

suffered by the plaintiff. Id . Marshall v. Browning, Id . citing Selvy v. Morrison,

292 Ga. App. 702, 704-705, 665 S.E.2d 401 (2008).



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Applying the above standard, the court in Franklin denied the plaintiff’s

malicious prosecution claim finding no evidence tending to show that the detective

acted with malice in applying for an arrest warrant for Franklin. Franklin, 236

Ga. App. at 471. (“[T]he law does not presume malice or animus against an officer

merely because in the discharge of his legal functions, he does an illegal act.

Pinkston v. City of Albany, 196 Ga. App. 43, 46, 395 S.E.2d 587 (1990)).

The same conclusion reached in Franklin is authorized here. McEnroe’s

belief of the various eyewitnesses who identified Plaintiff as the man they saw with

J. Jones and the victim the night she disappeared, and his decision to pursue an

arrest warrant for Plaintiff on the information he had - no matter how imperfect - is

not sufficient to show actual malice for purposes of official immunity exemption.

In an obvious attempt to repair this deficiency, Plaintiff has asserted a whole

host of false accusations in his Complaint to create the appearance of some

personal animus on the part of McEnroe. Yet McEnroe did not commit (nor could

not have committed) any of the acts alleged to have occurred after Plaintiff’s DNA

was obtained in September 2012 because McEnroe never saw or communicated

with Plaintiff again after that date. (McEnroe Aff., ¶ 21). That means McEnroe did

not arrest, talk to, take custody of, extradite, accompany, book, jail, release, or

doing anything else with Plaintiff after the one time he actually saw him on

September 27, 2012. (McEnroe Aff., ¶ 20-23, 28). Therefore, there is nothing here



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tending to show a deliberate intention by McEnroe to do wrong to Plaintiff or to

cause specific harm to Plaintiff to constitute the actual malice necessary to

overcome McEnroe’s official immunity protection.

As for Hadley, his only involvement consisted of showing a photo line-up to

witness, Jasmine Jones and accompanying McEnroe to Georgia to collect DNA

samples and to serve the arrest warrants since he had grown up in Georgia and

could help navigate the area and provide additional help if needed. (Hadley Aff., ¶

5-7). Otherwise, Hadley had no involvement whatsoever in the investigation of

Ms. Ramsey’s death and he did not participate in the decision to seek the arres t

warrant for the Plaintiff. (Hadley Affidavit, ¶ 5, 6, 10,11,13).

Accordingly, it certainly cannot be found or even reasonably stated that

Hadley’s limited actions were driven by his desire to do Plaintiff harm to constitute

actual malice and thereby exempt himself from official immunity protection.

Absent malice or intent to injure on the part of a law enforcement officer, no

liability attaches to the officer’s exercise of his lawful discretion. Marshall , 310

Ga.App. at 69.

V.

Venue is Improper in this Court.

As there is no special venue provision for claims brought under 42 § 1983,

the general venue statute of 28 U.S.C. § 1391(b) controls. Jones v. Bales, 58

F.R.D. 453 (N.D. Ga. 1972). The relevant part of 28 U.S.C. § 1391(b )(1) provides



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that venue is proper where “a substantial part of the events or omissions giving rise

to the claim occurred.”

Here, dismissal is warranted because venue is proper in New Jersey, where a

substantial part of the claims which form the basis of the Complaint took place.

The Officers reside in New Jersey and are New Jersey law enforcement officers.

(Complaint, ¶ 4,5,7,8). The murder of Ms. Ramsey and the ensuing investigation

occurred in New Jersey. (See Complaint). The entire investigation file is in New

Jersey. All but one of the witnesses interviewed as part of the investigation took

place in New Jersey. (Complaint, ¶ 19, 30, 31, 33). The Arrest Affidavit, which is

the gravamen of the Complaint, was executed in New Jersey and presented to a

New Jersey Court. (See Arrest Affidavit). The man that Plaintiff alleges the

Officers should have investigated further, Brian Love, lived in New Jersey until

Ms. Ramsey disappeared. ( Id. at ¶ 30). Search warrants for J. Jones and Love’s

apartment in New Jersey were issued by a New Jersey court. ( Id. at ¶ 33). The

DNA samples of Plaintiff were analyzed in New Jersey. ( Id.). The New Jersey

investigation did lead Officer McEnroe to Georgia, but the Officers had two short

visits here prior to Plaintiff’s arrest, one in September in connection with the DNA

swabs, and one in October in connection with the arrest warrants, and that trip

resulted in no contact with Plaintiff. Other than that, none of the investigation or



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other relevant activities leading up to Plaintiff’s arrest and detention took place in

Georgia.

Plaintiff was detained in Georgia when he turned himself over to local

authorities on October 25, 2012, but he remained here until November 28, 2012

when he was extradited to New Jersey. ( Id. at ¶ 77, 83). The remaining five

months of his alleged improper detention occurred in New Jersey. As a

substantial part of the events giving rise to the claims took place in New Jersey, the

Complaint should be dismissed. ( Accord , Miles v. Chicago Police Dept., No. 00-

CV-72782, 2000 WL 1279191 (E.D. Mich. Aug. 21, 2000) (venue improper in

false arrest/malicious prosecution claim); Clayton v. Prudential Ins. Co. of Amer.,

554 F. Supp. 628 (S.D. Tex. 1982) (venue in Texas where indictment, criminal trial

and related records were kept, witness with relevant knowledge in Texas, and a

substantial amount of the investigatory conversation occurred in Texas).

CONCLUSION

For the foregoing reasons, the Officers request that the case be dismissed.

_/s/ Tracey Blackwell ____________

Tracey BlackwellGeorgia Bar No. 732752Marlo Orlin LeachGeorgia Bar No. 442216GONZALEZ SAGGIO & HARLAN LLP3353 Peachtree Road NE, Suite 920Atlanta, GA 30326



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Telephone: (404) 869-1545Facsimile: (404) 842-1722

Attorneys for Officers McEnroe and Hadley



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CERTIFICATION OF COMPLIANCE

The undersigned counsel hereby certifies in accordance with Local Rule

7.1D that this brief has been prepared in Times New Roman 14 point font in

accordance with Local Rule 5.1(C).

GONZALEZ SAGGIO & HARLAN LLP

/s/ Marlo Orlin Leach _Marlo Orlin LeachGeorgia Bar No. [email protected] Peachtree Road NE, Suite 920Atlanta, GA 30326Telephone: (404) 869-1545Facsimile: (404) 842-1722



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CERTIFICATE OF SERVICE

I hereby certify that on December 29, 2014, a copy of this pleading was

electronically filed with the Clerk of Court by using the CM/ECF system which

will send a notice of electronic filing to all counsel of record and by U.S. Mail.

GONZALEZ, SAGGIO & HARLAN LLP

/s/ Tracey Blackwell_________________Tracey BlackwellGeorgia Bar No. [email protected] 3353 Peachtree Road NE, Suite 920

Atlanta, GA 30326Telephone: (404) 869-1545Facsimile: (404) 842-1722

Attorneys for Defendants JOSEPH HADLEY AND JAMES McENROE

mailto:[email protected]:[email protected]:[email protected]

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