Sergeant Nathan D. Crisp v. The State of Georgia

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14190
Non-Argument Calendar
____________________
SERGEANT NATHAN D. CRISP,
Plaintiff-Appellant,
versus
THE STATE OF GEORGIA,
GWINNETT COUNTY,
MS. TOOLE,
Gwinnett County Assistant District Attorney,
TUWANDA RUSH WILLIAMS,
Gwinnett County Law Office,
WARREN DAVIS,
Gwinnett County Superior Court Judge, et al.,
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2 Opinion of the Court 21-14190
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:21-cv-00175-AT
____________________
Before WILSON, LUCK, and MARCUS, Circuit Judges.
PER CURIAM:
Nathan Dee Crisp, proceeding pro se, appeals following the
dismissal of his civil complaint, which brought claims arising out of
his arrest for impersonating a public officer or employee in viola-
tion of Ga. Code Ann. § 16-10-23. On appeal, Crisp challenges: (1)
the district court’s dismissal of his action against Gwinnett County
and the State of Georgia on sovereign immunity and Eleventh
Amendment immunity grounds; and (2) the district court’s dismis-
sal of his action as to four remaining defendants for failing to state
a claim upon which relief can be granted, in part, based on Heck v.
Humphrey, 512 U.S. 477 (1994). 1 After careful review, we affirm.
1 Crisp does not expressly challenge the district court’s dismissal, without prej-
udice, of this action as to seven other defendants, for failing to effectuate ser-
vice. As a result, Crisp has forfeited any claim against these defendants. See
Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (holding that while we
liberally construe pro se pleadings, issues not briefed on appeal are normally
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21-14190 Opinion of the Court 3
I.
The relevant background is this. In 2017, Crisp was arrested
by Gwinnett County, Georgia police officers for impersonating a
public officer or employee and charged with violating Ga. Code
Ann. § 16-10-23. In 2018, a Gwinnett County grand jury indicted
him for the same. The charges were brought by Daniel J. Porter,
the former Gwinnett County District Attorney, and Assistant Dis-
trict Attorney Ramona Toole prosecuted the case. Crisp’s case was
assigned to Gwinnett County Superior Court Judge Warren Davis.
While his criminal case was pending, Crisp sued Porter,
Gwinnett County, and the officers who arrested him in federal
court. The civil lawsuit, which alleged several constitutional vio-
lations, was assigned to United States District Court Judge Eleanor
Ross, who stayed the civil case pending the outcome of Crisp’s
state court criminal case under the Younger abstention doctrine. 2
deemed abandoned and will not be considered); see also Sapuppo v. Allstate
Floridian Ins. Co., 739 F.3d 678, 681–82 (11th Cir. 2014) (explaining that an
appellant can abandon a claim by: (1) making only passing reference to it, (2)
raising it in a perfunctory manner without supporting arguments and author-
ity, (3) referring to it only in the “statement of the case” or “summary of the
argument,” or (4) referring to the issue as mere background to the appellant’s
main arguments).
2 Younger v. Harris, 401 U.S. 37 (1971).
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4 Opinion of the Court 21-14190
Crisp later sought mandamus relief from the Supreme Court
of Georgia, invoking the original jurisdiction of that Court. Assis-
tant Attorney General Brittanie Browning from the Georgia Attor-
ney General’s Office represented Judge Davis before the Georgia
Supreme Court. In this capacity, Browning wrote the Clerk of the
Supreme Court of Georgia and notified the Court of this represen-
tation and argued that the petition should be dismissed. The Geor-
gia Supreme Court agreed and dismissed Crisp’s petition for man-
damus relief shortly thereafter.
Crisp eventually entered into a negotiated guilty plea to the
felony charge of impersonating an officer. Judge Laura Tate, who
was sitting by designation for Judge Davis on the state trial court,
sentenced Crisp under Georgia’s First Offender Statute to three
years of probation.
After pleading guilty, Crisp brought the present pro se “Class
Action” complaint in federal court, against thirteen defendants: the
State of Georgia (“the State”); Gwinnett County (“the County”);
Judge Davis; Gwinnett County Assistant District Attorney Toole;
Georgia Assistant Attorney General Browning; Porter, the former
Gwinnett County District Attorney; Judge Ross; Tuwanda Rush
Williams and David D. Pritchett of the Gwinnett County Law Of-
fice; Gwinnett County Magistrate Judge Kenneth A. Parker; Clerk
of Gwinnett County Superior Court Richard Alexander; Judge
Tate; and a Gwinnett County Magistrate Judge Keith Miles.
The district court dismissed all of Crisp’s claims. Relevant
here, the district court dismissed Crisp’s claims against the State of
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21-14190 Opinion of the Court 5
Georgia and Gwinnett County on the basis of sovereign immunity
and Eleventh Amendment immunity. As for four other defendants
-- Georgia Assistant Attorney General Browning, former Gwinnett
County District Attorney Porter, Officer Williams and Judge Davis
-- the district court dismissed Crisp’s claims for failing to state a
claim upon which relief can be granted, in part, because Heck v.
Humphrey and various immunities barred his action.
This timely appeal follows.
II.
Where appropriate, we review de novo the grant of a mo-
tion to dismiss based on a state’s Eleventh Amendment immunity.
In re Employ’t Discrimination Litig. Against State of Ala., 198 F.3d
1305, 1310 (11th Cir. 1999). Determinations of sovereign immunity
are questions of law that we review de novo. Nat’l Ass’n of Boards
of Pharmacy v. Bd. of Regents of the Univ. Sys. of Georgia, 633
F.3d 1297, 1313 (11th Cir. 2011).
We also review de novo a grant of a motion to dismiss, un-
der Fed. R. Civ. P. 12(b)(6), for failure to state a claim. Glover v.
Liggett Grp., Inc., 459 F.3d 1304, 1308 (11th Cir. 2006). We accept
the allegations in the complaint as true and construe them in the
light most favorable to the plaintiff. Id. We may affirm the district
court on any basis that the record supports. See Devengoechea v.
Bolivarian Republic of Venezuela, 889 F.3d 1213, 1220 (11th Cir.
2018). Likewise, we review de novo whether an official is entitled
to absolute immunity or judicial immunity. Stevens v. Osuna, 877
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6 Opinion of the Court 21-14190
F.3d 1293, 1301 (11th Cir. 2017); Smith v. Shook, 237 F.3d 1322,
1325 (11th Cir. 2001). And we review a ruling concerning official
immunity under Georgia state law de novo as well. See Bailey v.
Wheeler, 843 F.3d 473, 480 (11th Cir. 2016). Finally, we review de
novo a dismissal for failure to state a claim based on qualified im-
munity. Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003).
III.
First, the district court did not err in dismissing Crisp’s
claims against the State of Georgia and Gwinnett County on the
basis of sovereign immunity and Eleventh Amendment immunity.
Eleventh Amendment immunity bars suits by private individuals
against a state in federal court unless the state has consented to be
sued, has waived its immunity, or Congress has abrogated the
state’s immunity. Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S.
356, 363–64 (2001). “Although, by its terms, the Eleventh Amend-
ment does not bar suits against a state in federal court by its own
citizens, the Supreme Court has extended its protections to apply
in such cases.” Abusaid v. Hillsborough Cnty. Bd. of Cnty.
Comm’rs, 405 F.3d 1298, 1303 (11th Cir. 2005). Georgia has not
waived “any immunity with respect to actions brought in the
courts of the United States.” Ga. Code Ann. § 50-21-23(b). And
§ 1983 does not override states’ Eleventh Amendment immunity,
meaning that “if a § 1983 action alleging a constitutional claim is
brought directly against a State, the Eleventh Amendment bars a
federal court from granting any relief on that claim.” Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 120 (1984).
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The State of Georgia is afforded sovereign immunity from
suit, which “can only be waived by an Act of the General Assembly
which specifically provides that sovereign immunity is thereby
waived and the extent of such waiver.” Ga. Const. art. I, § II, ¶
IX(e). This sovereign immunity also applies to Georgia’s counties.
Gilbert v. Richardson, 452 S.E.2d 476, 479 (Ga. 1994); see also Ga.
Code Ann. § 36-1-4 (“A county is not liable to suit for any cause of
action unless made so by statute.”).
In 2020, the Georgia Constitution was amended to waive
sovereign immunity to permit certain actions for declaratory and
equitable relief. See Ga. Const. Art. I, § II, ¶ V (b)(1).
Sovereign immunity is hereby waived for actions in
the superior court seeking declaratory relief from acts
of the state or any agency, authority, branch, board,
bureau, commission, department, office, or public
corporation of this state or officer or employee
thereof or any county, consolidated government, or
municipality of this state or officer or employee
thereof outside the scope of lawful authority or in vi-
olation of the laws or the Constitution of this state or
the Constitution of the United States. Sovereign im-
munity is further waived so that a court awarding de-
claratory relief pursuant to this Paragraph may, only
after awarding declaratory relief, enjoin such acts to
enforce its judgment. Such waiver of sovereign im-
munity under this Paragraph shall apply to past, cur-
rent, and prospective acts which occur on or after Jan-
uary 1, 2021.
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Id. (emphases added).
Georgia law also waives sovereign immunity for certain tort
suits against state officers and employees committed in the scope
of their employment under Ga. Code Ann. § 50-21-23, while a later
statute provides that the procedure established under the Georgia
Tort Claims Act (“GTCA”) provides “the exclusive remedy for any
tort committed by a state officer or employee.” Id. § 50-21-25(a).
The GTCA provides immunity to a “state officer or employee who
commits a tort while acting within the scope of his or her official
duties or employment.” Id.
Here, the district court properly found that Eleventh
Amendment and sovereign immunity precluded Crisp from pursu-
ing claims against the State of Georgia and Gwinnett County unless
they consented to suit, or their immunity was validly abrogated.
Garrett, 531 U.S. at 363–64. 3 But neither party consented to be
sued here. Ga. Code Ann. § 50-21-23(b); Gilbert, 452 S.E.2d at 479.
And § 1983 does not abrogate immunity here either. Pennhurst
State, 465 U.S. at 120.
Crisp claims that the Georgia Constitution was amended to
waive sovereign immunity, but he misreads the text of the
3 Crisp arguably has abandoned any argument challenging the dismissal of his
claims against the County since his brief does not specifically dispute the dis-
trict court’s reasons for dismissal of that entity in a meaningful fashion.
Sapuppo, 739 F.3d at 681–82. But, for completeness’s sake, we will assume
that Crisp implicitly preserved the issue as to both the State and the County.
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amendment, which limits the waiver in several ways, including to
“actions in the superior court” concerning acts that “occur on or
after January 1, 2021.” Ga. Const. Art. I, § II, ¶ V (b)(1). Since he
did not bring this suit in the state superior court, and since the chal-
lenged acts all predate January 1, 2021, the amendment does not
waive sovereign immunity or Eleventh Amendment immunity
here. Id. Further, as the district court found, Crisp failed to comply
with the requirements of the GTCA and other state procedures, so
the state claims were properly dismissed on that ground too.
In short, the district court did not err in holding that sover-
eign immunity and Eleventh Amendment immunity barred Crisp’s
claims as to the State and the County, and we affirm in this respect.
IV.
Nor did the district court err in dismissing Crisp’s remaining
claims against defendants Browning, Williams, Davis or Porter for
failure to state a claim upon which relief can be granted. To sur-
vive a Fed. R. Civ. P. 12(b)(6) motion to dismiss, a complaint must
allege sufficient facts to state a claim that is plausible on its face.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plau-
sibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id.Section 1983 provides a cause of action for private citizens
against persons acting under color of state law for violating their
constitutional rights and other federal laws. 42 U.S.C. § 1983. In
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order to recover damages for an allegedly unconstitutional convic-
tion or for other harm caused by actions whose unlawfulness
would render a conviction invalid in a § 1983 action, however, a
plaintiff must show that the conviction “has been reversed on di-
rect appeal, expunged by executive order, declared invalid by a
state tribunal authorized to make such determination, or called
into question by a federal court’s issuance of a writ of habeas cor-
pus.” Heck, 512 U.S. at 486–87 (applying this framework to a
§ 1983 suit seeking monetary and punitive damages).
If this type of § 1983 action is brought before the challenged
conviction is invalidated, it must be dismissed under Heck. Id. at
487. Thus, the district court considers whether a favorable judg-
ment for the plaintiff would “necessarily imply the invalidity of his
conviction . . . .” Id. If the outcome would imply invalidity, then
the plaintiff’s complaint must be dismissed unless the plaintiff can
establish that the conviction was already invalidated. Id.
In Dyer v. Lee, 488 F.3d 876 (11th Cir. 2007), we clarified
that for Heck to apply, a successful § 1983 suit and the underlying
conviction must be so logically contradictory that the § 1983 suit
would negate the conviction. See id. at 879–80, 884. Thus, we ask
whether “it is possible that the facts could allow a successful § 1983
suit and the underlying conviction both to stand without contra-
dicting each other.” Harrigan v. Metro Dade Police Dep’t Station
#4, 977 F.3d 1185, 1193 (11th Cir. 2020) (quotation marks omitted).
The Heck doctrine only applies when the “invalidation of a
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conviction or speedier release would . . . automatically flow from
success on the § 1983 claim.” Id. (quotation marks omitted).
To succeed on a malicious prosecution claim in a 42 U.S.C.
§ 1983 action, the plaintiff must show: “(1) that the defendant vio-
lated his Fourth Amendment right to be free from seizures pursu-
ant to legal process and (2) that the criminal proceedings against
him terminated in his favor.” Luke v. Gulley, 975 F.3d 1140, 1144
(11th Cir. 2020). To satisfy the first prong, the plaintiff must estab-
lish “that the legal process justifying his seizure was constitution-
ally infirm” and “that his seizure would not otherwise be justified
without legal process.” Id. (quotation marks omitted).
Judges are entitled to absolute judicial immunity from dam-
ages for those acts taken while they are acting in their judicial ca-
pacity unless they acted in the clear absence of all jurisdiction.
Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000). Whether a
judge’s actions were made while acting in his judicial capacity de-
pends on whether: (1) the act complained of constituted a normal
judicial function; (2) the events occurred in the judge’s chambers
or in open court; (3) the controversy involved a case pending be-
fore the judge; and (4) the confrontation arose immediately out of
a visit to the judge in his judicial capacity.” Sibley v. Lando, 437
F.3d 1067, 1070 (11th Cir. 2005). Judges are also generally immune
from injunctive and declaratory relief unless (1) a declaratory de-
cree was violated or (2) declaratory relief is unavailable. Bolin, 225
F.3d at 1242. A judge enjoys immunity for judicial acts even if she
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made a mistake, acted maliciously, or exceeded her authority.
McCullough v. Finley, 907 F.3d 1324, 1331 (11th Cir. 2018).
Prosecutors are absolutely immune from liability for dam-
ages for activities that are intimately associated with the judicial
phase of the criminal process. Imbler v. Pachtman, 424 U.S. 409,
430–31 (1976). Prosecutorial immunity extends to all actions that
the prosecutor takes while performing her function as an advocate
for the government. Rowe v. City of Fort Lauderdale, 279 F.3d
1271, 1279 (11th Cir. 2002). Absolute immunity can cover “even
wrongful or malicious acts by prosecutors.” Hart v. Hodges, 587
F.3d 1288, 1298 (11th Cir. 2009).
Under Georgia law, county law enforcement officers acting
within the scope of their authority are entitled to official immunity
from personal liability for the alleged negligent performance of
their duties. Phillips v. Hanse, 637 S.E.2d 11, 12 (Ga. 2006); Ever-
son v. Dekalb Cnty. Sch. Dist., 811 S.E.2d 9, 11–12 (Ga. Ct. App.
2018); see Ga. Const. Art. I, § II, ¶ IX(d). Officers may be held per-
sonally liable in tort, however, for actions “performed with malice
or an intent to injure.” Cameron v. Lang, 549 S.E.2d 341, 344–46
(Ga. 2001).
Government officials performing discretionary functions are
generally shielded from liability for civil damages in § 1983 actions
“insofar as their conduct does not violate clearly established statu-
tory or constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The
qualified immunity analysis involves a two-part inquiry. Hadley v.
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Gutierrez, 526 F.3d 1324, 1329 (11th Cir. 2008). The first question
is whether the facts, taken in the light most favorable to the party
asserting the injury, show the violation of a constitutional or statu-
tory right. Id. The second question is whether the constitutional
or statutory right was clearly established. Id. In determining
whether a constitutional right is clearly established, the relevant,
dispositive inquiry is “whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he con-
fronted.” Terrell v. Smith, 668 F.3d 1244, 1255 (11th Cir. 2012)
(quotation marks omitted).
In this case, the district court did not err in concluding that
Heck squarely barred Crisp’s claims. Crisp’s complaint alleged that
his underlying state convictions, as well as his prior federal pro-
ceedings, were, in fact, part of a conspiracy against him that pun-
ished him for lawful conduct. Thus, his suit was logically contra-
dictory to his state conviction, and necessarily asked the district
court to negate the conviction. Dyer, 488 F.3d at 879–80, 884; Har-
rigan, 977 F.3d at 1193. Moreover, Crisp explicitly requested that
the district court “overturn entirely all orders by State Court Judges
in [his criminal case] and Judge Ross[’s orders in his federal case] as
null and void.” Heck therefore barred Crisp’s claims against most,
if not all, the remaining defendants. Heck, 512 U.S. at 487.
But even if Crisp’s claims were not barred by Heck, the dis-
trict court correctly concluded that the remaining defendants were
entitled to immunity. For starters, Crisp’s complaint and brief on
appeal make clear that his claims against Judge Davis arose from
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14 Opinion of the Court 21-14190
his judicial capacity. See Sibley, 437 F.3d at 1070. As for Crisp’s
requested injunctive and declaratory relief, Crisp does not argue
that (1) a declaratory decree was violated or (2) declaratory relief
was unavailable, and therefore his requests are also barred. Bolin,
225 F.3d at 1242. Thus, Judge Davis was entitled to judicial im-
munity, and the district court correctly dismissed Crisp’s claims
against him. Id. at 1239.
Likewise, the district court properly concluded that Wil-
liams, Porter, and Browning were entitled to absolute prosecuto-
rial immunity. Crisp’s claims against Williams stem from his alle-
gations that she largely failed to act and lied to the court during her
work at the Gwinnett County Law Office. While Crisp’s complaint
was largely unclear as to what Williams specifically did to harm
him, Iqbal, 556 U.S. at 678, prosecutorial immunity extends to
these types of actions -- i.e., those taken while performing her func-
tion as an advocate for the government. Rowe, 279 F.3d at 1279.
Porter is also protected by prosecutorial immunity because
Crisp’s claims against him were based on his role as the district at-
torney, bringing charges on behalf of the state. Hart, 587 F.3d at
1298. Similarly, Browning was performing a job-related function
when she represented Judge Davis in front of the Georgia Supreme
Court, and Crisp has abandoned any argument that Browning’s
acts as an advocate for Judge Davis might not entitle her to the
same absolute immunity as enjoyed by a government prosecutor.
See Sapuppo, 739 F.3d at 681–82.
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To the extent that any claims survive these immunities, the
state-law claims against these defendants were also barred by offi-
cial immunity because Crisp did not plausibly allege that any of
them acted with malice or an intent to injure him. Cameron, 549
S.E.2d at 344–46; Iqbal, 556 U.S. at 678.
Finally, the district court correctly concluded that any re-
maining federal claims were barred by qualified immunity. Crisp’s
complaint describes a relatively straightforward criminal prosecu-
tion, which, even if done with malice, does not violate clearly es-
tablished law. Harlow, 457 U.S. at 818. Crisp does not, and could
not, show that “it would be clear to a reasonable officer that [this]
conduct was unlawful in [this] situation.” Terrell, 668 F.3d at 1255.
Accordingly, we conclude that the district court properly
dismissed Crisp’s complaint in its entirety, and we affirm.
AFFIRMED.