Lori Sene Sorrow v. City of Atlanta

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14723
____________________
LORI SENE SORROW,
Plaintiff-Appellant,
versus
CITY OF ATLANTA,
Defendant-Appellee,
MICHAEL NAGY, et al.,
Defendants.
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2 Opinion of the Court 20-14723
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:17-cv-02908-MLB
____________________
Before WILLIAM PRYOR , Chief Judge, L UCK , and E D C ARNES, Circuit
Judges.
PER C URIAM :
Lori Sene Sorrow filed suit under 42 U.S.C. section 1983
alleging that the City of Atlanta and three city officials—Michael
Nagy, Scott Banks, and Philip Proctor (collectively, the individual
defendants)—violated her constitutional rights by targeting her for
violations of the city’s building code. The two claims at issue on
appeal, a Fourth Amendment unreasonable search and seizure
claim against all defendants (count one), and a Fourth Amendment
failure to train claim against the city (count three), involve an
administrative search warrant that was executed on Sorrow’s
home. Sorrow argues that the district court erred in: (1) dismissing
count one as to the individual defendants on qualified immunity
grounds; (2) granting the city’s motion for judgment on the
pleadings as to count one; and (3) dismissing count three. After
review, we affirm.
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20-14723 Opinion of the Court 3
BACKGROUND FACTS AND PROCEDURAL HISTORY
We draw the following factual background from Sorrow’s
second amended complaint, the operative pleading in this action.
Sorrow has resided in a 1930s-era bungalow in Atlanta’s Home
Park neighborhood since 1996. Sorrow jointly owns the property
and has made numerous repairs and improvements to it. The city
and a neighbor made inquiries about certain repairs and an issue
with Sorrow’s land in 2003, 2008, and 2010. In each instance,
Sorrow received confirmation from the city that her property
complied with city codes.
In 2010, Sorrow obtained a general repair permit, valid for
one year, and made various repairs, including to the roof and attic
of her home. A neighbor complained in 2011 that Sorrow was
adding a second story. However, when the city inspected the
property in January and November of 2012, it found no building
code violations.
In December 2013, developer 380 Properties, LLC acquired
two properties adjacent to Sorrow’s home. Despite opposition
from Sorrow and other community members, the properties were
rezoned for the development of a hotel. Later, 380 Properties sued
Sorrow regarding property rights to an alley between her home
and the proposed hotel site. Sorrow counterclaimed, asserting
various easements and prescriptive rights.
To defeat Sorrow’s counterclaims, 380 Properties began
lobbying the city to bring code violations against Sorrow.
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4 Opinion of the Court 20-14723
Although city officials only visited Sorrow’s property
approximately six times from 1990 to 2013, they made
approximately thirty-two visits from 2013 to 2015. Sorrow was
issued four citations for alleged code violations from March 2014
to April 2015. The latter three citations were issued at the direction
of Nagy, who was then interim director of the city’s Bureau of
Buildings. Sorrow pleaded no contest to the first citation, and the
others were eventually dismissed with prejudice.
In August 2015, the city applied for an administrative search
warrant on Sorrow’s home to seek evidence of an illegal second
story addition and in support of the citations. At Nagy’s direction,
Banks and Proctor—code enforcement officials for the Bureau of
Buildings—made alleged misrepresentations to the municipal
court in applying for the warrant. Specifically, Banks and Proctor:
(1) omitted that a complaint about an illegal second story had
previously been filed in 2011, but no violations were found when
the city inspected the property in 2012; (2) “improperly cited 2012
building code violations on alleged work that occurred prior to
2012;” (3) “lied to create a false sense of urgency” by claiming
occupants of the building could be in danger; and (4) “falsely
contended that the alleged second story impinged upon the alley,
the rights to which are in dispute between Plaintiff and 380
Properties.”
Before the warrant was executed, an Atlanta Police
Department code compliance officer visited Sorrow’s property in
relation to a complaint by 380 Properties about an attic door. The
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20-14723 Opinion of the Court 5
officer determined that the attic door was compliant. The officer’s
supervisor stated in an email that the officer had also been asked to
look for other code compliance issues and found none.
The city executed the administrative search warrant one day
after it expired. Banks, Proctor, and other officials took numerous
photographs of the interior of Sorrow’s home and did not perform
a structural analysis. Sorrow later obtained a municipal court order
suppressing this evidence and requiring the city to turn over the
photographs. However, the city returned only a few of the images.
Sorrow initially filed suit under 42 U.S.C. section 1983
against only the city. In her first amended complaint, she alleged
claims for unreasonable search and seizure, failure to train,
selective prosecution, and malicious prosecution. The district
court granted the city’s motion to dismiss all claims except count
one, the unreasonable search and seizure claim based on the
administrative search warrant. Relevant here, the district court
dismissed the failure to train claim in count three because Sorrow
failed to show that the city’s need for training with respect to
administrative search warrants was obvious. As to count one, the
city argued that the search was not unreasonable merely because
the warrant had expired. But the district court observed that
Sorrow had also claimed the city had obtained the warrant based
on false representations and omissions, and it therefore concluded
she had stated a Fourth Amendment claim.
Sorrow filed her second amended complaint, repleading the
same claims and adding the individual defendants to all but the
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6 Opinion of the Court 20-14723
failure to train claim in count three. The individual defendants
moved to dismiss on statute of limitations and qualified immunity
grounds, attaching the administrative search warrant and Banks
and Proctor’s affidavits to their motion.
The district court granted the individual defendants’ motion
to dismiss. First, the district court concluded that all claims (except
the unreasonable search and seizure claim in count one) were
dismissed for the same reasons as before. Second, the district court
concluded that count one was barred by the statute of limitations
to the extent it was based on the execution of the administrative
search warrant, but not to the extent it was based on alleged false
statements and the omission. Third, the district court concluded
that the individual defendants were entitled to qualified immunity
because the affidavits supported a finding of probable cause
regardless of the misrepresentations and the omission alleged in
Sorrow’s second amended complaint. Notably, Banks and Proctor
“averred that, in 2015, they conducted a visual inspection of the
exterior of the home and saw a second story for which no one had
obtained the necessary approval and permit.”
The district court later granted the city’s motion for
judgment on the pleadings as to count one. The district court
concluded that because Nagy was entitled to qualified immunity,
and Sorrow’s municipal liability claim was based solely on his
actions as an official policymaker, the city could not be held liable
for Nagy’s conduct. This appeal followed.
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20-14723 Opinion of the Court 7
STANDARD OF REVIEW
We review the district court’s order granting a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6) de novo,
“accepting the factual allegations in the complaint as true and
construing them in the light most favorable to the plaintiff.”
Hill
v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). Under this standard,
“a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
We likewise review de novo a district court’s entry of
judgment on the pleadings, accepting the facts of the complaint as
true and viewing them in the light most favorable to the
nonmoving party.
Horsley v. Feldt, 304 F.3d 1125, 1131 (11th Cir.
2002). “Judgment on the pleadings is appropriate where there are
no material facts in dispute and the moving party is entitled to
judgment as a matter of law.”
Perez v. Wells Fargo N.A., 774 F.3d
1329, 1335 (11th Cir. 2014) (quotation marks omitted).
DISCUSSION
Dismissal of count one on qualified immunity grounds
Sorrow first contends that the district court erred in granting
the individual defendants’ motion to dismiss count one on qualified
immunity grounds because she plausibly alleged the individual
defendants violated her Fourth Amendment rights when they
made false statements in their affidavits for the administrative
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8 Opinion of the Court 20-14723
search warrant. She argues that the district court ignored her well
pleaded allegations and made improper factual findings.
“Qualified immunity shields government officials from
liability for civil damages for torts committed while performing
discretionary duties unless their conduct violates a clearly
established statutory or constitutional right.”
Hadley v. Gutierrez,
526 F.3d 1324, 1329 (11th Cir. 2008). To receive qualified
immunity, government officials must first establish that they were
acting within the scope of their discretionary authority when the
alleged wrongful conduct occurred.
Vinyard v. Wilson, 311 F.3d
1340, 1346 (11th Cir. 2002). There is no dispute that the individual
defendants were acting within the scope of their discretionary
authority when they applied for the administrative search warrant.
Therefore, to overcome the individual defendants’ qualified
immunity defense, the burden shifted to Sorrow to show: (1) the
individual defendants violated a constitutional right, and (2) the
violated right was clearly established.
See Corbitt v. Vickers, 929
F.3d 1304, 1311 (11th Cir. 2019).
Although the defense of qualified immunity is typically
addressed at the summary judgment stage, it may be raised and
considered upon a motion to dismiss.
St. George v. Pinellas Cnty.,
285 F.3d 1334, 1337 (11th Cir. 2002). A motion to dismiss on
qualified immunity grounds “will be granted if the complaint fails
to allege the violation of a clearly established constitutional right.”
Id. (quotation marks omitted);
see also Keating v. City of Miami,
598 F.3d 753, 760 (11th Cir. 2010) (stating that at the motion to
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20-14723 Opinion of the Court 9
dismiss stage, “the qualified immunity inquiry and the [r]ule
12(b)(6) standard become intertwined” (quotation marks
omitted)).
Under
Franks v. Delaware, 438 U.S. 154 (1978), a search
warrant violates the Fourth Amendment if the affidavit supporting
the warrant contains statements that are deliberately false or made
with reckless disregard for the truth and such statements are
necessary to a finding of probable cause.
See Madiwale v. Savaiko,
117 F.3d 1321, 1326 (11th Cir. 1997). The rule in
Franks also
extends to omissions “made intentionally or with a reckless
disregard for the accuracy of the affidavit” if the inclusion of such
omissions “would have prevented a finding of probable cause.”
Id.
at 1326–27 (quotation marks omitted). If the allegedly false
material is set aside, and “there remains sufficient content in the
warrant affidavit to support a finding of probable cause,” the
warrant is valid.
Id. at 1326 (quoting
Franks, 438 U.S. at 171);
see
also Dahl v. Holley, 312 F.3d 1228, 1235 (11th Cir. 2002) (explaining
that a “warrant is valid if, absent the misstatements or omissions,
there remains sufficient content to support a finding of probable
cause”),
abrogated on other grounds by Lozman v. City of Riviera
Beach, Fla., 138 S. Ct. 1945 (2018).
The district court did not err in dismissing count one on
qualified immunity grounds because, in view of Banks and
Proctor’s affidavits, there was probable cause for the search despite
the alleged false statements. As an initial matter, we note that the
district court properly considered the warrant affidavits attached to
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10 Opinion of the Court 20-14723
the individual defendants’ motion to dismiss, and we may do the
same. Ordinarily, a district court must convert a motion to dismiss
under rule 12(b)(6) into a motion for summary judgment if it
considers materials outside the pleadings.
SFM Holdings, Ltd. v.
Banc of Am. Sec., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010);
see
also St. George, 285 F.3d at 1337. However, the district court may
consider an extrinsic document without converting a motion to
dismiss into one for summary judgment if the document is “(1)
central to the plaintiff’s claim, and (2) its authenticity is not
challenged.”
SFM Holdings, 600 F.3d at 1337
.
In count one, Sorrow alleged that Banks and Proctor, under
Nagy’s direction, violated her Fourth Amendment rights by
submitting affidavits for the administrative search warrant that
contained “false statements and material omissions designed to
deceive and mislead the Municipal Court of Atlanta into believing
that probable cause existed as to alleged code violations” at her
home. The affidavits are thus central to Sorrow’s claim, and
Sorrow does not dispute their authenticity, such that they may be
considered without converting the individual defendants’ motion
to dismiss to one for summary judgment.
To determine whether Sorrow plausibly alleged a Fourth
Amendment violation, we must determine whether the affidavits
support a finding of probable cause notwithstanding the portions
challenged by Sorrow.
See Madiwale, 117 F.3d at 1326–27.
Turning to the affidavits, Banks and Proctor averred that in May
2015, they made an exterior inspection of Sorrow’s home and
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20-14723 Opinion of the Court 11
discovered two violations of the 2012 building code: (1) a violation
of section 103.1, failure to secure approved plans for the addition
of a second story, and (2) a violation of section 104.4, failure to
secure a building permit for the construction of the second story.
Further, they stated that the code violations “likely compromised
the interior structure” of Sorrow’s home, which could “likely
present conditions that could result in immediate danger” to
occupants. The affidavits also stated that the code violations, and
other uncited violations, had not been corrected and were still
outstanding. Based on this information, the municipal court judge
concluded that Sorrow’s home had been “modified into a two-
story structure without proper permits,” and was in violation of the
cited provisions of the building code.
Turning to the second amended complaint, Sorrow
identified one omission and three false statements in relation to
Banks and Proctor’s application for the warrant. She alleged that
they: (1) omitted the fact that the city found no illegal second story
when it twice inspected her property in 2012; (2) “improperly cited
2012 building code violations on alleged work that occurred prior
to 2012;” (3) made false claims that occupants of the building were
in danger; and (4) “falsely contended that the alleged second story
impinged upon the alley.”
As the district court did, we conclude that even when these
alleged misrepresentations are removed from the affidavits, and
the alleged omission included, “there remains sufficient content in
the warrant affidavit to support a finding of probable cause.”
See
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12 Opinion of the Court 20-14723
Madiwale, 117 F.3d at 1326 (quoting
Franks, 438 U.S. at 171).
Therefore, Sorrow has failed to plausibly allege a Fourth
Amendment violation based on the administrative search warrant,
and the individual defendants are entitled to qualified immunity.
See St. George, 285 F.3d at 1337;
see also Griffin Indus., Inc. v. Irvin,
496 F.3d 1189, 1205–06 (11th Cir. 2007) (“Our duty to accept the
facts in the complaint as true does not require us to ignore specific
factual details of the pleading in favor of general or conclusory
allegations.”).
Significantly, none of the alleged misrepresentations
undermine Banks and Proctor’s assertion that in May 2015, they
personally inspected the exterior of Sorrow’s home and observed
code violations based on the construction of a second story, which
supports the municipal court’s finding of probable cause.1
Including the alleged omission of the fact that there was no code
violation in 2012 has no impact on what Banks and Proctor said
1 The parties do not address the requisite level of probable cause for an
administrative search warrant. We note that in general, administrative search
warrants require a lesser showing of probable cause than criminal search
warrants and may be obtained upon “a showing of specific evidence sufficient
to support a reasonable suspicion of a violation.”
W. Point-Pepperell, Inc. v.
Donovan, 689 F.2d 950, 958 (11th Cir. 1982) (discussing inspection warrant
obtained by the Occupational Safety and Health Commission);
cf. United
States v. Kapordelis, 569 F.3d 1291, 1310 (11th Cir. 2009) (stating probable
cause to support a criminal search warrant “exists when the totality of the
circumstances allows the conclusion that there is a fair probability that
contraband or evidence of a crime will be found in a particular place”
(quotation marks omitted)).
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20-14723 Opinion of the Court 13
they observed in May 2015, when they conducted their exterior
inspection of Sorrow’s home. Similarly, excluding the alleged
misrepresentations concerning the potential danger to occupants
does not affect Banks and Proctor’s statement that they observed a
second story, constructed in violation of two city building codes, in
May 2015. The alleged misrepresentation that the second story
“impinged upon the alley” is not contained in the affidavits, but
instead stated in the warrant itself. Sorrow argues it is reasonable
to infer Banks and Proctor communicated this statement to the
municipal court judge during a bench conference. But even so,
there was probable cause to issue the warrant without this
statement.
The other alleged misrepresentation concerning improper
citation to “2012 building code violations on alleged work that
occurred prior to 2012” does not accurately reflect what the
affidavits say. The affidavits make no mention of work that
occurred prior to 2012, and instead state that Banks and Proctor
observed violations of the 2012 building code when they conducted
their exterior inspection in May 2015. Because none of the alleged
misrepresentations in the second amended complaint were
necessary to a finding of probable cause, and because including the
alleged omission would not have prevented a finding of probable
cause, Sorrow failed to assert a Fourth Amendment violation under
Franks.
See Madiwale, 117 F.3d at 1326–27.
Sorrow argues that she did challenge “whether there existed
a second story on the house . . . or whether, if it existed, it was
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14 Opinion of the Court 20-14723
permitted,” and that a false statement about the existence of a
second story “would have eliminated any possible finding of
probable cause.” In support of this argument, Sorrow notes that
she: (1) alleged in her second amended complaint that there was
no second story being added to her home in 2012; (2) argued in her
response to the city’s motion for judgment on the pleadings that
there never had been a second story on her home; and (3)
repeatedly referred to an “alleged” second story in the second
amended complaint, thereby raising “the issue of whether the
affiants falsely swore that they had observed a second story.” But
what Sorrow argued in response to the city’s motion is immaterial
to what she pleaded, and the other allegations she mentions, even
when viewed in the light most favorable to her, do not support a
plausible inference that Banks and Proctor made a deliberate or
reckless misrepresentation about the existence of a second story in
order to obtain the administrative search warrant.
Sorrow also contends that the district court engaged in
improper fact-finding in ruling on the motion to dismiss, finding
that Banks and Proctor saw a second story on her home and made
no misrepresentations in their affidavits. The district court,
however, did not make any such findings and expressly noted it had
found only that “the search warrant affiants alleged there was an
improper second story when they conducted a visual inspection of
Plaintiff’s house in the weeks before obtaining the 2015 warrant.”
We too make no determination as to the truth of Banks and
Proctor’s assertion about what they saw. Instead, we merely
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20-14723 Opinion of the Court 15
conclude that this assertion supported a finding of probable cause
and was not one of the alleged misrepresentations in the second
amended complaint.
In further support of her argument that she plausibly alleged
a Fourth Amendment violation in count one, Sorrow notes that
when she alleged the same claim (against the city alone) in her first
amended complaint, the district court allowed the claim to
proceed. Unlike the individual defendants, however, the city did
not—and could not—assert a qualified immunity defense, and it
sought dismissal on different grounds. Thus, the district court’s
ruling that Sorrow had stated a claim against the city in her first
amended complaint did not preclude it from subsequently ruling,
in view of the affidavits, that the individual defendants were
entitled to qualified immunity.2
Judgment on the pleadings as to count one
Sorrow contends that because the individual defendants are
not entitled to qualified immunity on count one, the district court’s
order granting the city’s motion for judgment on the pleadings as
to count one should also be reversed. She argues that the district
2 Having found Sorrow failed to plausibly allege a Fourth Amendment
violation based on the administrative search warrant, we do not reach her
arguments that, in the event of reversal, she should be allowed leave to file a
third amended complaint and her claim for attorney’s fees should be
reinstated.
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court made the same improper factual findings in ruling on the
city’s motion for judgment on the pleadings and incorporates her
prior arguments regarding the dismissal of count one as to the
individual defendants.
The district court did not err in granting the city’s motion
for judgment on the pleadings, and Sorrow’s arguments fail for the
reasons set forth above. To state a claim for municipal liability
under section 1983, Sorrow was required to show: “(1) that [her]
constitutional rights were violated; (2) that the municipality had a
custom or policy that constituted deliberate indifference to that
constitutional right; and (3) that the policy or custom caused the
violation.”
McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir.
2004). “Even in the absence of an express policy or custom, a local
government body can be held liable for a single act or decision of a
municipal official with final policymaking authority in the area of
the act or decision.”
Cuesta v. Sch. Bd. of Miami-Dade Cnty., Fla.,
285 F.3d 962, 968 (11th Cir. 2002) (quotation marks omitted).
Although a municipality may be liable for a constitutional
violation even when an individual defendant is not,
Barnett v.
MacArthur, 956 F.3d 1291, 1301 (11th Cir. 2020),
cert. denied sub
nom. Lemma v. Barnett, 141 S. Ct. 1373 (2021), that is not the case
here. The alleged municipal liability claim in count one was based
solely on Nagy’s actions as a final policymaker for the city as to
building code enforcement. Because Sorrow failed to plausibly
allege that Nagy in his individual capacity violated her Fourth
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20-14723 Opinion of the Court 17
Amendment rights, the city likewise cannot be held liable for
Nagy’s conduct.
Dismissal of count three
Sorrow also argues the district court erred in dismissing
count three—her failure to train claim against the city—because
there was an obvious need for the city to provide training with
respect to the execution of administrative search warrants and
because no discovery had occurred.
As noted above, the second element of municipal liability
under section 1983 requires “a custom or policy that constituted
deliberate indifference to [a] constitutional right.”
McDowell, 392
F.3d at 1289. To establish deliberate indifference based on a failure
to train, a plaintiff must show that the municipality knew of the
need for training in a particular area and “made a deliberate choice
not to take any action.”
Gold v. City of Miami, 151 F.3d 1346, 1350
(11th Cir. 1998).
“[A] pattern of similar constitutional violations by untrained
employees is ordinarily necessary to demonstrate deliberate
indifference for purposes of failure to train.”
Weiland v. Palm
Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1328 (11th Cir. 2015)
(quoting
Connick v. Thompson, 563 U.S. 51, 62 (2011)). However,
the Supreme Court has left open the possibility that in a narrow
range of circumstances, the need for training may be “so obvious”
as to establish deliberate indifference even without a pattern of
unconstitutional conduct.
See Gold, 151 F.3d at 1352 (citing
City
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18 Opinion of the Court 20-14723
of Canton, Ohio v. Harris, 489 U.S. 378, 390 (1989));
see also Bd. of
Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 409
(1997) (explaining that in some circumstances, “a violation of
federal rights may be a highly predictable consequence of a failure
to equip law enforcement officers with specific tools to handle
recurring situations”).
The district court did not err in dismissing count three of the
second amended complaint because Sorrow failed to adequately
allege the city’s need for training was obvious with respect to the
execution of administrative search warrants for residences. Count
three is based on a single incident—the execution of the
administrative search warrant on Sorrow’s home—rather than a
pattern of unconstitutional conduct. Sorrow alleged city officials
displayed a lack of adequate training because: (1) they executed the
warrant one day after it expired, and (2) when ordered to do so by
the municipal court, they refused to turn over numerous
photographs of the interior of Sorrow’s home taken during the
search. Sorrow also alleged that the city rarely executed
administrative search warrants on private residences, and that it
had searched only one other property in the two years prior to the
search of her home.
Yet there are no allegations that the city’s need for training
with respect to administrative search warrants was so obvious that
the city’s failure to provide such training amounted to deliberate
indifference. To the contrary, Sorrow’s allegation that residential
searches were a rarity undermines any claim that the need for
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20-14723 Opinion of the Court 19
training in this area was obvious.
Cf. Canton, 489 U.S. at 1205 n.10
(noting the use of deadly force as an example of an area where the
need for training is obvious because “city policymakers know to a
moral certainty that their police officers will be required to arrest
fleeing felons”);
Young v. City of Augusta, Ga., 59 F.3d 1160, 1172
(11th Cir. 1995) (stating that the need for specialized training may
be obvious where employees “face clear constitutional duties in
recurrent situations”). Finally, it was not error for the district court
to dispose of Sorrow’s failure to train claim at the motion to dismiss
stage.
See, e.g.,
Weiland, 792 F.3d at 1328–29 (affirming dismissal
of failure to train claim where plaintiff failed to allege the need for
specialized training was so obvious that lack of training constituted
deliberate indifference).
CONCLUSION
For the reasons above, we affirm the district court’s
dismissal of count one against the individual defendants on
qualified immunity grounds, its order granting the city’s motion
for judgment on the pleadings as to count one, and its dismissal of
count three against the city.
AFFIRMED.
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