IN THE SUPERIOR COURT OF CHEROKEE COUNTY STATE OF GEORGIA. Before the Court is Defendants' Motion to Dismiss, which

Transcription

1 IN THE SUPERIOR COURT OF CHEROKEE COUNTY STATE OF GEORGIA Kerry Walker, Plaintiff, v. Case No.: 07-CV-3325 Garry Moss, et al., Defendants. Before the Court is Defendants' Motion to Dismiss, which was timely filed on January 3, For the following reasons, Defendants Motion to Dismiss is GRANTED. I. DISCUSSION Plaintiff filed the instant action November 20, 2007, for alleged injuries arising from an arrest and subsequent prosecution. Plaintiff seeks monetary and injunctive relief under the common law torts of false arrest and malicious prosecution and under 42 U.S.C. ~ 1983 for alleged violations of his Fourth Amendment rights under the U.S. Constitution. In his Complaint, Plaintiff names as defendants, inter alia, Garry Moss, District Attorney of Blue Ridge Judicial Circuit, and Judge John Sumner. Defendants replied, by and through counsel, i-heattorney General for the State of Georgia, with a Special

2 Appearance dismissal Answer and Motion to Dismiss. for the following Therein they urged reasons: 1. Plaintiff's suit is barred by absolute prosecutorial 2. Plaintiff's suit is barred by the doctrine of judicial 3. Plaintiff's tort claims are barred by the Georgia Tort L.LCllmSACl: ("GTCA") because: (i) Plalrltiff has failed to attach to the Complaint as exhibits a copy of a pre-suit notice of claim pursuant to a.c.g.a (a) (4) i (ii) the individually named defendants are immune from suit pursuant to a.c.g.a , andi (iii) the state defendants are immune form suit pursuant to the intentional tort exemption of a.c.g.a. ~ (7) 4. Defendants are entitled After considering record and briefs to qualified the matter as well as reviewing submitted, the Court finds that the instant action should be dismissed due to the broad scope of prosecutorial immunities protecting and judicial I. DEFENDANT Defendants. MaSS to Defendant absolute prosecutorial activities occurring advocate. the F.2d 1176, Attorneys immunity for claims relating within en~ov to the scope of their roles as a state Imbler v. Pachtman, Henzel v. Gerstein, Moss, District 424 U.S. 409 (1976). See also, 608 F.2d 654 (1979), Prince v. Wallace, (5th Cir. 1978), Moore v. VaIden, 189, 194 (D.C. Cir. 1995). (The standard established F.3d in Imbler

3 was adopted at the state level in Holsey v. Hind, 189 Ga. App. 656 (1988)). As all of the activities part of Moss' prosecutorial Defendant Moss is entitled Fletcher, 522 U.S. This immunity the Georgia complained role as advocate to absolute of occurred as for the State, Kalina v. 118 (1997). is aiso codified Constitution, in AI'ticJ.e6, ~ g, which provides, ~ J of in applicable part: It shall be the duty of the District Attorney to represent the State in all criminal cases in the Superior Court of such District Attorney's circuit and in all cases appealed from the Superior Court and the Juvenile courts of that circuit to the Supreme Court and the Court of Appeals and to perform such other duties as shall be required by law....district Attorneys shall enjoy immunity from private suit for actions arising from the perfor.mance of their duties. See also a.c.g.a. Defendant Moss is also immune from the claims asserted Plaintiff pursuant absolutely ~ (4) (2006). (Emphasis added). immune to 42 U.S.C. S from liability in his role as advocate All of Plaintiff's occurred Prosecutors for damages prosecutorial Therefore, are sought in a ~ 1983 for the State,// Imbler, 424 U.S. at 409. alleged interactions with Defendant in the context of his role as a prosecutor. Complaint). by Defendant Moss is entitled lmmuni.ty. 3 Moss (See to absolute

4 II. DEFEND~' JUDGE SUMNER Georgia "courts have consistently held that judges are immune from liability in civil actions for acts performed in their judicial capacity." Upshaw v. Oliver, 1 Dud. 241 (1832); Gault v. Wallis, 53 Ga. 675 (1875); Calhoun v. Little, 106 Ga. 336 (1897);!,~.acoc~.~;'I~1:_i0I?:~! Bank.. ~ Tr~s~_~?~?fSol~~~)u~L Ga., 241 Ga. 280 (1978); West End Warehouse, Inc. v. Dunlap, 141 Ga. App. 333 (1977); Maddox v. Prescott, 214 Ga. App. 810, 812 (1994). This "immunity applies even when the judge is accused of acting maliciously and corruptly, and is "not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences." Pierson v. Ray, 386 U.S. 547, 554 (1967; Smith v. Hancock, 150 Ga. App. 80 (1979). As all cf Plaintiff's allegations against Defendant Judge Sumner relate to actions taken while he was performing as a judge in his judicial capacity, Defendant Judge Sumner is entitled to judicial 4

5 III. CONCLUSION The Court having read the briefs and arguments hereby GRANTS Defendants' Motion to Dismiss on the basis that Plaintiff's suit is barred by the doctrines of judicial and prosecutorial Plaintiff's ~ction is hereby DISMISSED, as to Defendants Moss and Sumner. SO ORDERED this :2 '-3 day of, I /. ii' (,/f ---;;Ffj" ( C-- t../,j /(..,([../ G.fH The Hon. W.A. Foster, III Senior Superior Court Judge 5

6 CERTIFICATE OF SERVICE This is to certify that I have this day mailed a copy of the attached Order in the above stated matter to the parties listed below by deposlting said Order in the United States Mail in a properly addressed envelope wi th adequate postage thereon as follows: :M"~: rri--," }ft, Pipel Asslstant Attorney General State of Georgia Law Department 40 Capitol Square, S. W. Atlanta, GA Mr. Kerry Craig Walker 2135 Big Fork Road Chattanooga, TN Mr. Marc M. Aragon Attorney at Law Caller Service No Alpharetta, GA Ms. Angela E. Davis Jarrard & Davis 105 Pilgrim Village Dr., Suite 200 Cumming, GA day o i: "<i~; t_<:-._',, Brenda E. Womack, Secretary to Judge W.A. Foster, III