Mundy v. Hambright, et al. - Order Denying Motion to Dismiss

IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF GEORGIA

BRUNSWICK DIVISION

LEO MUNDY, *

Plaintiff, **

v. * CV 213-128*

KAREN HAMBRIGHT and VALERIE *

HEPBURN, **

Defendants. *

ORDER

Presently pending before the Court are Defendants Karen

Hambright ("Hambright") and Valerie Hepburn's ("Hepburn")

(collectively "Defendants") motions to dismiss Plaintiff Leo

Mundy's ("Plaintiff") complaint. Upon due consideration,

Hambright's motion (doc. no. 9) is DENIED, and Hepburn's motion

(doc. no. 10) is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

This action, brought pursuant to 42 U.S.C. § 1983, arises

from the alleged ransacking of Plaintiff's residence. The

relevant factual allegations in the complaint, taken as true and

with all reasonable inferences drawn in the light most favorable

to Plaintiff, follow.

Plaintiff was an Associate Professor of Sociology at

Coastal College of Georgia ("CCGA") from August 1, 2009, until

Case 2:13-cv-00128-JRH-JEG Document 26 Filed 06/24/14 Page 1 of 19

Radford & Keebaugh, LLC www.DecaturLegal.com

his resignation on April 2, 2012. (Compl. K 7.) CCGA is a

public university. (Id. ff 5-6.) During the times relevant to

this action, Hambright was the Dean of the School of Arts,

Humanities, and Social Sciences at CCGA and was Plaintiff's

direct supervisor. (Id. Uf 5, 9.) During the same time,

Hepburn was the President of CCGA. (Id. H 6.)

In March of 2012, Hepburn informed Plaintiff by letter that

he would not be awarded tenure at CCGA. (Id. H 8.) Thereafter,

Hambright admitted to Plaintiff in a meeting that the

administration had assisted two other candidates regarding their

tenure applications. (Id. H 9.) Following the meeting,

Plaintiff informed Hambright that he intended to formally

complain to Hepburn regarding this preferential treatment. (See

id. H1I 9-10.) In response, Hambright twice threatened to kill

Plaintiff for "threatening her career." (See id. HU 11-13.)

"[F]earing for his life," Plaintiff emailed a letter of

resignation to Hepburn on or about April 2, 2012, and "fled the

area[.]" (Id. H 14.) Hepburn, "frustrated about [Plaintiff's]

abrupt resignation" during the academic semester, "instructed

the faculty under her supervision to track [him] down[.]" (Id.

H 15.) Hepburn also instructed Hambright to enter and search

Plaintiff's home even though the CCGA police informed her that

she was not authorized to conduct such a search. (Id. UH 15-

16.)



On or about April 2, 2012, Hambright obtained a key to

Plaintiff's residence from Curt Spires ("Spires"), another CCGA

faculty member. (Id. H 17.) Hambright entered Plaintiff's home

and "conducted a thorough and invasive search" consistent with

Hepburn's instructions.1 (Id. H 18.) This search was conducted

without a search warrant. (Id. U 15.) Hambright later informed

other CCGA faculty and administration of her actions, and no one

objected to the propriety of her actions. (See id. H 18.)

Hambright notified Plaintiff of these events by letter written

on CCGA letterhead.2 (Id. H 19.) Hambright attached a copy of

Plaintiff's house key to the letter as proof that she had indeed

entered and searched his residence. (Id. H 20.)

On August 28, 2013, Plaintiff filed the instant complaint.

He raised only one claim: that Defendants, purporting to carry

out their duties as officials of a public university, were

liable under § 1983 for violating his rights protected by the

Fourth and Fourteenth Amendments "by planning and carrying out

the unreasonable and invasive search of [his] home[.]" (Compl.

H1I 25-27.) In his prayer for relief, Plaintiff requests

declaratory and injunctive relief, compensatory and punitive

damages, attorneys' fees and expenses of litigation, and

prejudgment and post-judgment interest.

1 As a part of this search, Hambright examined Plaintiff's toothbrush"to determine how recently he had brushed his teeth." (Id. H 18.)

2 In the letter, Hambright allegedly stated that "[Plaintiff] had'betrayed' her, made a strange reference to a magic acorn, and planted a redlipstick kiss under the signature line." (Id. H 19.)



On September 23, 2013, Hambright filed her motion to

dismiss Plaintiff's claims against her. Hepburn filed her

motion to dismiss the next day. The time for filing materials in

opposition has expired, and the motions are ripe for

consideration.

II. MOTION TO DISMISS STANDARD

In considering a motion to dismiss under Rule 12(b)(6), the

court tests the legal sufficiency of the complaint, not whether

the plaintiff will ultimately prevail on the merits. Scheuer v.

Rhodes, 416 U.S. 232, 236 (1974) . The court must accept as true

all facts alleged in the complaint and construe all reasonable

inferences in the light most favorable to the plaintiff. See

Hoffman-Pugh v. Ramsey, 312 F.3d 1222, 1225 (11th Cir. 2002).

The court, however, need not accept the complaint's legal

conclusions as true, only its well-pled facts. Ashcroft v.

Iqbal, 556 U.S. 662, 678-79 (2009).

A complaint also must "contain sufficient factual matter,

accepted as true, *to state a claim to relief that is plausible

on its face.'" Id. at 678 (citing Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)). The plaintiff is required to plead

"factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct

alleged." Id. "The plausibility standard is not akin to a



*probability requirement, ' but it asks for more than a sheer

possibility that a defendant has acted unlawfully." Id.

III. DISCUSSION

42 U.S.C. § 1983 does not itself create any substantive

legal rights; instead, it only provides "a method for

vindicating federal rights elsewhere conferred."3 Graham v.

Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan,

443 U.S. 137, 144 n.3 (1979)). To sustain a claim under § 1983,

the plaintiff must establish that he was "deprived of a right

secured by the Constitution or laws of the United States, and

that the alleged deprivation was committed under color of state

law." Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50

(1999).

Defendants argue that dismissal is warranted because the

complaint's allegations fail to show that they were plausibly

acting under color of state law. Further, Hepburn raises three

additional arguments in support of her motion to dismiss. In

42 U.S.C. § 1983 provides:

Every person who, under color of any statute, ordinance,regulation, custom, or usage, of any State or Territory orthe District of Columbia, subjects, or causes to besubjected, any citizen of the United States or other personwithin the jurisdiction thereof to the deprivation of anyrights, privileges, or immunities secured by theConstitution and laws, shall be liable to the party injuredin an action at law, suit in equity, or other properproceeding for redress ....



terms of sequencing, the Court will first address the parties'

"under color of state law" arguments before turning to Hepburn's

remaining contentions.

A. Under Color of State Law

In support of their motions to dismiss, Defendants attempt

to divorce their conduct from their duties and obligations as

state officials, likening it to purely private endeavors. They

claim that their positions as President of CCGA and Dean of

CCGA's School of Arts, Humanities, and Social Sciences did not

clothe them with any authority to enter and search Plaintiff's

home or to direct anyone to do the same. In contrast, Plaintiff

contends that Defendants were acting under color of law not

simply because they held their positions at CCGA; rather, it was

because they misused the authority of their positions to effect

the search. He points out that "[w]hile a private employer could

have abused her authority to harm a similarly situated private

employee, that private employer would not have accomplished her

violative act through power vested in her by the state." (PL's

Resp. in Opp'n to Def. Hepburn's Mot. to Dismiss at 10 (emphasis

in original); see also PL's Opp'n to Def. Hambright's Mot. to

Dismiss at 9-10 .)

For a § 1983 claim, "[t]he traditional definition of acting

under color of state law requires that a defendant . . . have

exercised power *possessed by virtue of state law and made



possible only because the wrongdoer is clothed with the

authority of state law.'" West v. Atkins, 487 U.S. 42, 49

(1988) (quoting United States v. Classic, 313 U.S. 299, 326

(1941) ). Further, " [a] person acts under color of state law

when [s]he acts with authority possessed by virtue of [her]

employment with the state or when the manner of [her] conduct

makes clear that [s]he was asserting the authority granted [her]

and not acting in the role of a private person." Myers v.

Bowman, 713 F.3d 1319, 1329-30 (11th Cir. 2013) (internal

quotation marks and punctuation omitted) (citing Williams v.

United States, 341 U.S. 97, 100 (1951); Griffin v. City of Opa-

Locka, 261 F.3d 1295, 1303 (11th Cir. 2001)); see West, 487 U.S.

at 50 ("[G]enerally, a public employee acts under color of state

law while acting in [her] official capacity or while exercising

[her] responsibilities pursuant to state law."). A state

official need not act specifically pursuant to the authority of

law granted to her; an act is effected under color of state law

if the state official commits the act "under pretense of law."

Butler v. Sheriff of Palm Beach Cnty. , 685 F.3d 1261, 1268 (11th

Cir. 2012); see Screws v. United States, 325 U.S. 91, 110 (1945)

(plurality opinion) ("It is clear that under xcolor' of law

means under 'pretense' of law.").

"Not all acts by state employees are acts under color of

law[.]" Myers, 713 F.3d at 1329 (citing Almand v. DeKalb Cnty.,



Ga., 103 F.3d 1510, 1513 (11th Cir. 1997)). The Eleventh

Circuit has explained that "[t]he dispositive issue is whether

the official was acting pursuant to the power [she] possessed by

state authority or acting only as a private individual."

Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1523 (11th Cir.

1995). With these guidelines in mind, courts assess the

totality of the circumstances and have considered whether there

is a sufficient nexus between a defendant's duties and

obligations as a state official and the alleged abuse of

authority. See Griffin, 261 F.3d at 1303, 1306; Hackett v.

Fulton Cnty. Sch. Dist., 238 F. Supp. 2d 1330, 1356 (N.D. Ga.

2002); see also Jojola v. Chavez, 55 F.3d 488, 494 (10th Cir.

1995) ("[I]t is the plaintiff's burden to . . . establish [] the

existence of 'a real nexus' between the defendant's conduct and

the defendant's 'badge' of state authority in order to

demonstrate action was taken 'under color of state law.'").

Here, the totality of the factual allegations in the

complaint and the reasonable inferences drawn therefrom show

that Defendants were plausibly acting under color of state law.

Hambright was the Dean of the School in which Plaintiff taught

and was Plaintiff's direct supervisor. Hambright was directly

responsible for Plaintiff as a part of her duties as Dean to



manage and oversee the faculty and administration in her school.4

As the President of CCGA, a public state university, Hepburn

wielded substantial authority in managing and overseeing its

faculty and administration. Further, Hepburn authored the

letter to Plaintiff stating that he had been denied tenure

because she also possessed authority over employment matters.

By extension, Plaintiff was a subordinate of Hepburn and under

her authority.

Plaintiff's abrupt, mid-term resignation arguably falls

well within the ambit of Hepburn's authority regarding faculty

oversight and employment matters and of Hambright's authority

regarding faculty and administration oversight at the School of

Arts, Humanities, and Social Sciences. Thus, Hepburn exercised

at least the pretense of this authority by directing the faculty

to track down Plaintiff and instructing Hambright to enter and

search Plaintiff's residence. Hambright, fulfilling her roles

as Dean and Hepburn's subordinate, exercised at least the

pretense of her authority by securing the key from Spires and

searching Plaintiff's home. That no one objected to Hambright's

actions strengthens the inference that Defendants were, at a

4 Hambright points out that "Plaintiff can, in fact, point to no Georgialaw that allows college professors to enter the home of former collegeprofessors without permission!] under any circumstances." (Def. Hambright'sBr. in Supp. Mot. to Dismiss at 8-9.) However, this Circuit has establishedthat a state official need not act pursuant to a specific grant of power andmay act "under pretense of law" for her conduct to be considered under colorof state law. See, e.g., Butler, 685 F.3d at 1268.



minimum, acting under the pretense of their authority as

President and Dean of CCGA in directing and realizing the search

of Plaintiff's home.5

Further, the complaint's allegations evince a sufficient

nexus between the search of Plaintiff's home and Defendants'

duties and obligations as President and Dean at CCGA. As

already noted, Hepburn wielded significant control over CCGA's

faculty and administration. Similarly, Hambright wielded

control over the faculty and staff in the School of Arts,

Humanities, and Social Sciences. Further, addressing

Plaintiff's abrupt, mid-term resignation and departure

implicates employment and faculty oversight issues, matters

arguably within Defendants' spheres of authority. Accordingly,

the complaint shows that Defendants' actions regarding the

search of Plaintiff's home were plausibly part and parcel of

their attempts to address a faculty and employment matter and

thus demonstrate a sufficient nexus between Defendants' actions

and their duties and obligations as state officials.

Based upon the foregoing, the complaint's allegations are

sufficient to show that Defendants plausibly acted under color

of state law in directing and conducting the search of

5 Hepburn notes that "any employer, including a private employer, couldhave done what [Defendants] did." (Def. Hepburn's Br. in Supp. Mot. toDismiss at 11.) Her attempts to recast her actions as private conduct proveunfruitful. The dispositive inquiry is not whether a defendant's actions canbe replicated in a private context but rather whether a state official lendsthe authority of her position, and thereby the authority of the State, to heractions. See Myers, 713 F.3d at 1329-30; Griffin, 261 F.3d at 1303-07.

10



Plaintiff's residence. Further, because Hambright only

challenges that she was acting under color of law state law in

committing the alleged acts underlying Plaintiff's § 1983 claim,

Hambright's motion to dismiss is DENIED.

B. Hepburn's Remaining Arguments in Her Motion to Dismiss

Hepburn also contends that Plaintiff's prayer for

injunctive relief should be dismissed, that the complaint fails

to show that she plausibly violated Plaintiff's Fourth Amendment

rights, and that she is entitled to qualified immunity. The

Court will address each issue in turn.

1) Injunctive Relief

Hepburn contends that Plaintiff's prayer for injunctive

relief is premature at this time. Plaintiff agrees but requests

that the Court only dismiss his prayers for injunctive relief

against Hepburn without prejudice so that, if warranted, he

could later reassert them. Because Hepburn consents to this

result, Plaintiff's prayers for injunctive relief against

Hepburn are hereby DISMISSED WITHOUT PREJUDICE.

2) Fourth Amendment Violation

The Fourth Amendment, incorporated by and made applicable

to the states by the Due Process Clause of the Fourteenth

Amendment, Michigan v. Summers, 452 U.S. 692, 694 n.2 (1981),

protects w[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable

11



searches and seizures[.]" A valid Fourth Amendment claim for an

unreasonable search has three elements.6 First, the complaint

must show that a state actor plausibly infringed on "an

expectation of privacy that society is prepared to consider

reasonable." O'Connor v. Ortega, 480 U.S. 709, 715 (1987)

(citing United States v. Jacobsen, 466 U.S. 109, 113 (1984)).

Second, courts must determine whether the alleged search

conducted was reasonable, which "depends on the context within

which a search takes place." Id. at 719 (citing New Jersey v.

T.L.O., 469 U.S. 325, 337 (1985)). This inquiry requires

"balanc [ing] the nature and quality of the intrusion on the

individual's Fourth Amendment interests against the importance

of the governmental interests alleged to justify the intrusion."

Id. (citing United States v. Place, 462 U.S. 696, 703 (1983);

Camara v. Mun. Court, 387 U.S. 523, 536-37 (1967)). Third, the

complaint must allege a causal connection between the

defendant's actions and the constitutional deprivation.7

6 In addition to the substantive requirements imposed by the FourthAmendment, a valid claim brought under the Fourteenth Amendment requires ashowing of "state action." See Lugar v. Edmonson Oil Co., 457 U.S. 922, 924(1982). A deprivation of federal rights constitutes state action under theFourteenth Amendment when it is "caused by the exercise of some right orprivilege created by the state . . . or by a person for whom the state isresponsible . . . [and] the party charged with the deprivation must be aperson who may fairly be said to be a state actor." Id. at 937; see West, 487U.S. at 49. Although courts note "the possibility that action under color ofstate law might not always constitute state action," Almand, 103 F.3d at 1513n.7, a finding that a state official acted "under color state law," such ashere, satisfies the state action requirement, see Lugar, 457 U.S. at 929.

7 This Court has observed:

12



Here, the complaint alleges sufficient facts to state a

plausible Fourth Amendment claim for an unreasonable search.

First, the complaint shows that Hambright's entry into and

search of Plaintiff's home infringed on a reasonable expectation

of privacy. See Oliver v. United States, 466 U.S. 170, 178

(1984) (w[T]he Court since the enactment of the Fourth Amendment

has stressed xthe overriding respect for the sanctity of the

home that has been embedded in our traditions since the origins

of the Republic.'" (quoting Payton v. New York, 445 U.S. 573,

601 (1980) ) . Second, based on the context laid out in the

complaint and in light of the strong protections offered to

one's private property from state invasions, the search of

Plaintiff's residence cannot be considered reasonable. See

0' Connor, 480 U.S. at 720 (w[I]t is settled . . . that 'except

in certain carefully defined classes of cases, a search of

private property without proper consent is unreasonable unless

Section 1983 provides for liability against a person who"subjects, or causes to be subjected," someone to the deprivationof federally established rights. Thus, liability can be incurredeither directly or indirectly. Arnold v. IBM Corp., 637 F.2d1350, 1355 (9th Cir. 1981) . But in any event, "causation is anessential element of a section 1983 cause of action." Greffey v.Alabama Dep't of Corr., 996 F. Supp. 1368, 1377 (N.D. Ala. 1998)(quoting Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986)).And with claims of indirect deprivation, like the claim against[Hepburn], the plaintiff must show that the defendant proximatelycaused the deprivation by "setting in motion a series of acts byothers which the [defendant knew] or reasonably should [haveknown] would cause others to inflict the constitutional injury."Arnold, 637 F.2d at 1355 (quoting Johnson v. Duffy, 588 F.2d 740,743-44 (9th Cir. 1978)).

Myers v. Bowman, No. l:09-cv-155, doc. no. 80, at 30-31 (S.D. Ga. Sept. 21,2011) (first alteration added).

13



it has been authorized by a valid search warrant.'" (quoting

Mancusi v. DeForte, 392 U.S. 364, 370 (1968)); see Oliver, 466

U.S. at 178. Here, Hepburn allegedly directed the search of

Plaintiff's home without a warrant or authorization from the

CCGA police department. Further, the complaint shows no

circumstances that could justify the warrantless search.8 See

generally O'Connor, 480 U.S. at 720. Third, the complaint

satisfies the causation prong because it alleges that Hepburn

directed Hambright to conduct the allegedly unlawful search of

Plaintiff's home. See Gonzalez v. Reno, 325 F.3d 1228, 1235

(11th Cir. 2003) ("A causal connection can also be established

by facts which support an inference that the supervisor directed

the subordinates to act unlawfully . . . ."); cf. Monroe v.

Pape, 365 U.S. 167, 187 (1961) (observing that § 1983 "should be

8 Hepburn's argument that she and Hambright obtained valid consent byobtaining the key from Spires is erroneous. Although Hepburn correctlypoints out that consent may be obtained from a third party who possess commonauthority over the premises, such common authority "rests 'on mutual use ofproperty by persons generally having joint access or control for mostpurposes . ' The burden of establishing that common authority restsupon the State." Illinois v. Rodriguez, 497 U.S. 177, 181 (1990). Here, thecomplaint fails to show that Spires maintained any form of common authorityover Plaintiff's residence and that he could thereby consent to the search ofPlaintiff's residence.

In addition, Hepburn's argument that "it was objectively reasonable forHambright to believe she had third party consent when she was provided with akey to Plaintiff's home" is unpersuasive. (Def. Hepburn's Br. in Supp. Mot.to Dismiss at 14.) First, the CCGA police informed Hepburn that she was notauthorized to conduct a search of Plaintiff's residence. Second, that Spireshad a key to Plaintiff's home is of dubious value, and there are no otherindicia of Spires's common authority over Plaintiff's residence. Third, itis telling that the complaint consistently refers to the residence asPlaintiff's home and that Hepburn embraces this characterization in herbriefing. Accordingly, the proposition that Hambright could reasonablybelieve that she had the consent of a third party who had common authorityover Plaintiff's home is untenable at this stage in the proceedings.

14



read against the background of tort liability that makes a man

responsible for the natural consequences of his actions").

Based upon the foregoing, the complaint alleges a plausible

claim that Hepburn deprived Plaintiff's rights as protected by

the Fourth Amendment to the Constitution.

3) Qualified Immunity

The Court rejects the assertion that Hepburn is entitled to

qualified immunity. Qualified immunity protects government

officials performing discretionary functions from being sued in

their individual capacities. Wilson v. Layne, 526 U.S. 603, 609

(1999). Public officials are shielded under qualified immunity

so far as "their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). Qualified immunity is a question of law for the court.

Post v. City of Ft. Lauderdale, 7 F.3d 1552, 1557 (11th Cir.

1993) .

The Eleventh Circuit utilizes a two-part analysis for this

defense. First, the defendant official must prove that she was

acting within the scope of her discretionary authority when the

allegedly wrongful acts occurred. Hartsfield v. Lemacks, 50

F.3d 950, 953 (11th Cir. 1995); see also Holloman ex. rel.

Holloman v. Harland, 370 F.3d 1252, 1265-67 (11th Cir. 2004)

(discussing the "discretionary authority" requirement). If the

15



defendant meets this burden, then "the plaintiff must show that:

(1) the defendant violated a constitutional right, and (2) this

right was clearly established at the time of the alleged

violation." Townsend v. Jefferson Cnty., 601 F.3d 1152, 1158

(11th Cir. 2010) (punctuation omitted) (quoting Holloman, 370

F.3d at 1264). "A right is clearly established if, in light of

already-existing law, the unlawfulness of the conduct is

apparent, and if a constitutional rule applies with obvious

clarity to give an official fair warning that violating that

right is actionable." Bennett v. Hendrix, 423 F.3d 1247, 1255

(11th Cir. 2005) (citations and internal quotation marks

omitted).

Hepburn is not entitled to qualified immunity because the

complaint adequately alleges a violation of Plaintiff's clearly

established rights. First, for the reasons previously

discussed, the complaint provides sufficient factual content to

show that Hepburn plausibly violated Plaintiff's Fourth

Amendment rights. Second, this right had been clearly

established at the time of the violation. The Eleventh Circuit

has "identified three ways in which the law can give [a state

official] 'fair and clear notice' that [her] conduct is

unconstitutional." Bates v. Harvey, 518 F.3d 1233, 1248 (11th

Cir. 2008). Under the second method, "a broad principle found

in the case law can 'establish clearly the law applicable to a

16



specific set of facts facing a government official' when the

principle is set for xwith obvious clarity to the point that

every objectively reasonable government official facing the

circumstances would know that the official's conduct did violate

federal law when the official acted.'" Id. (quoting Vinyard v.

Wilson, 311 F.3d 1340, 1351 (11th Cir. 2002)).

This second method is appropriate in this case. The

Supreme Court has readily recognized

the right to privacy embodied in the Fourth Amendment.The Amendment reflects the recognition of the Framersthat certain enclaves should be free from arbitrarygovernment interference. For example, the Court sincethe enactment of the Fourth Amendment has stressed

"the overriding respect for the sanctity of the homethat has been embedded in our tradition since the

origins of the Republic."

Oliver, 466 U.S. at 178 (quoting Payton, 445 U.S. at 601) . In

addition, the complaint demonstrates that a warrantless search

was not justified. See Bates, 518 F.3d at 1243. Hepburn fails

to articulate an exigent circumstance that would have warranted

a search of Plaintiff's home, nor can the Court find one from

the face of the complaint. Moreover, as explained supra, the

allegations show that Hepburn could not have reasonably

concluded that she received consent to search Plaintiff's

residence by a person with authority to give such consent. Cf.

id. at 1242 ("Qualified immunity protects [state officials] from

§ 1983 suits for civil damages arising from the discharge of

17



their discretionary functions, 'as long as their actions could

reasonably have been thought consistent with the rights they are

alleged to have violated.'" (emphasis added) (quoting Anderson

v. Creighton, 483 U.S. 635, 638 (1987)). Finally, it is clearly

established that the acts committed by a state official

exercising at least the pretense of her authority constitutes

state action. See, e.g. , West, 487 U.S. at 50; Griffin, 261

F.3d at 1307; see also Almand, 103 F.3d at 1513 n.7. In sum,

the allegations in the complaint sufficiently demonstrate that

Hepburn had fair notice that the search of Plaintiff's home

violated his constitutional rights.

Based upon the foregoing, Hepburn has failed to demonstrate

that dismissal of Plaintiff's § 1983 claim against her is

warranted. Accordingly, to the extent as provided in the

foregoing, Hepburn's motion to dismiss is DENIED.

IV. CONCLUSION

For the reasons set forth above, Hambright's motion to

dismiss (doc. no. 9) is DENIED, and Hepburn's motion to dismiss

(doc. no. 10) is GRANTED IN PART and DENIED IN PART. It is

hereby ORDERED that Plaintiff's prayers for injunctive relief

18



against Hepburn are DISMISSED WITHOUT PREJUDICE

proceed on his § 1983 claim against Defendants.9

ORDER ENTERED at Augusta, Georgia, this

2014.

Plaintiff may

day of June,

HONORABLE J. RANDAL HALL

UNITE© STATES DISTRICT JUDGE

SOUTHERN DISTRICT OF GEORGIA

9 Of course, the conclusions in this Order should not be construed asany ruling or commentary on whether Plaintiff will ultimately prevail on hisclaim. This Order merely finds that the allegations in Plaintiff's complaintwithstand Defendants' motions to dismiss.

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Documents

Mundy v. Hambright, et al. - Order Denying Motion to Dismiss