DOWNING v. HOWARD et al

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
TAVERN DOWNING, SR., et al.,
Plaintiffs,
v.
ANITA HOWARD, et al.,
Defendants.
CIVIL ACTION NO.
5:25-cv-00277-TES
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
Out of seven, the sole remaining defendant in this case, Deborah Stratham, has
filed a Motion to Dismiss [Doc. 30] seeking dismissal of the claims Plaintiff Tavern
Downing, Sr., asserts against her in her individual capacity. [Doc. 15, ¶ 4]. Plaintiff, via
two filings, has responded to Stratham’s Motion. [Doc. 34]; [Doc. 35]. For the reasons
stated in her Motion to Dismiss and for those discussed below by the Court, her Motion
is GRANTED.1
BACKGROUND
The goings-on of this case—based on Plaintiff’s original Complaint [Doc. 1]—are
more fully presented in one of the Court’s previous orders. See [Doc. 13, pp. 2–4].
1 Under its Local Rules, the Court has the discretion to remove certain motions from the regular 21:14 day
briefing schedule. See LRs 7.1, 7.2, 7.3, MDGa. Since “the relative legal positions” surrounding Stratham’s
dismissal efforts “are clearly determine[able] from the record before it,” the Court issues this order
without Stratham filing a reply brief. See LRs 7.3, 7.7, MDGa.
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Should you need even more of what’s transpired in this case, more facts—based on
Plaintiff’s Proposed Second Amended Complaint [Doc. 20-1]—can be found in the
Court’s Order Denying Plaintiff’s Motion to Amend [Doc. 23]. See generally [Doc. 23]. If
you can’t tell, there have been multiple pleadings in this case and several attempts to
amend them.
First, there was Plaintiff’s original Complaint filed on June 30, 2025. [Doc. 1].
Then, just to correct the spelling of a defendant’s name, Plaintiff filed an “amended
complaint” on September 15, 2025, but the Court construed it as a simple Motion to
Correct Misnomer [Doc. 9] since there weren’t any substantive changes to the
Complaint’s factual allegations. [Doc. 9, p. 2]. By construing this filing as a Motion to
Correct Misnomer, it really can’t—unlike others—be considered a “true” effort to
amend a pleading in this case. See [Doc. 12, p. 1]. Second, after the Court dismissed
three of the defendants from this case, Plaintiff filed his First Amended Complaint [Doc.
15] on September 29, 2025. At this point, there weren’t really any procedural
implications of concern since the four remaining (at that time) defendants named in the
First Amended Complaint hadn’t been served yet. See Fed. R. Civ. P. 15(a)(1)(A). With
the First Amended Complaint dropping one of the defendants, the Court issued an
order reflecting just that. See [Doc. 17, p. 1 n.1]. This, of course, left only three
defendants. Third, on November 5, 2025, Plaintiff sought leave to file his Proposed
Second Amended Complaint [Doc. 20-1]. See [Doc. 20]. In a rather lengthy order, the
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Court denied leave. See generally [Doc. 23]. Fourth, in seeking reconsideration of that
order on December 1, 2025, Plaintiff wedged in another effort to amend the First
Amended Complaint through a Federal Rule of Civil Procedure that did not apply—
Rule 12(e). [Doc. 27, pp. 5–7].
If you’ve read the Court’s previous orders, you’ll know that December 1, 2025,
was the absolute deadline by which Plaintiff had to serve the three remaining
defendants. Since Plaintiff only filed service paperwork with respect to one of them,
Stratham, the Court dismissed his claims against the other two defendants pursuant to
Federal Rule of Civil Procedure 4(m). [Id. at pp. 7–10]. So, as stated at the outset of this
Order, only Stratham is left, and she has moved to dismiss “each and every claim” filed
against her in the First Amended Complaint. [Doc. 30, p. 1].
In her dismissal motion, Stratham points out that the contents of the operative
pleading, the First Amended Complaint, “contain[] few factual allegations” beyond
Plaintiff’s conclusory assertion that she and two of the most recently dismissed
defendants “conspired to seize and steal Plaintiff’s property, specifically 600 bitcoins.”
[Id. at p. 2]; [Doc. 15, p. 2]; see also [Doc. 27, p. 8 n.3 (the Court’s notation that “Plaintiff’s
First Amended Complaint is the operative pleading in this case”). As Stratham puts it,
the First Amended Complaint “resulted in fewer factual allegations” than any other
pleading. [Doc. 30, p. 2]. To no one’s surprise, Plaintiff, due to Stratham’s argument,
filed another effort—a fifth effort—to amend the operative pleading. See [Doc. 28]. The
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Court will, of course, address Plaintiff’s request, but first, let’s see how Stratham’s
dismissal motion, based on the First Amended Complaint and Federal Rule of Civil
Procedure 12(b)(6), shakes out.
MOTION TO DISMISS
The applicable legal standard through which courts review a motion brought
pursuant to Rule 12(b)(6) is fully presented in the Court’s Order [Doc. 13] filed on
September 23, 2025. [Doc. 13, pp. 5–8]. With that standard in mind, along with relevant
guidance from the Eleventh Circuit on how to assess pleadings at this stage, see
McCullough v. Finley, 907 F.3d 1324, 1333 (11th Cir. 2018) (citing Ashcroft v. Iqbal, 556 U.S.
678–79 (2009)), Stratham argues that the “sparse amount of factual allegations contained
in the [First] Amended Complaint is insufficient to state a claim against [her] that is
plausible on its face.” [Doc. 30, p. 4]; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). The Court agrees. “[C]onclusions or a formulaic recitation of the elements of a
cause of action” will not do. McCullough, 907 F.3d at 1333 (quoting Twombly, 550 U.S. at
555). And, Plaintiff knows as much since he sought leave to, yet again, amend his
complaint—an issue that the Court discusses below. See generally [Doc. 28]; [Doc. 28-1].
While Plaintiff’s latest attempt to try and cure his pleading deficiencies arguably
amounts to somewhat of a pretty clear concession that his First Amended Complaint
fails to state plausible claims against Stratham, the Court still addresses his current
claims through a Rule 12(b)(6) lens. As for two statements that must be taken as true,
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Plaintiff claims that one or multiple defendants made a representation to him that the
district attorney’s office “was checking the property out of the property room for
judicial purposes.” [Doc. 15, ¶ 8]. But, Plaintiff fails to state who made this alleged
representation, leaving it to Stratham to grapple with whether this allegation pertains to
her, and that’s not her job. See Twombly, 550 U.S. at 555; Bailey v. Reliance Tr. Co., No.
1:04-CV-0340-JOF, 2002 WL 8154440, at *3 (N.D. Ga. Mar. 8, 2005) (“[T]he purpose of a
pleading is to give the adverse party a fair notice of the claim, so that the adverse party
can prepare an answer and an adequate defense.”). Next, Plaintiff claims that one or
multiple defendants “signed the property out under color of law[] but failed to list any
responsible custodian in the chain of custody, concealing their theft.” [Doc. 15, ¶ 9].
Again, though, Plaintiff fails to identify who signed out the property, underscoring the
lack of plausibility for his claims. In sum, all Plaintiff alleges is that Stratham, along
with two co-defendants named in the First Amended Complaint, “acted knowingly,
intentionally, and with reckless disregard for [his] constitutional rights.” [Id. at ¶ 13].
In Count I, Plaintiff claims that “on or about January 15, 2025,”2 Stratham and
these two co-defendants “unreasonably seized Plaintiff’s property without lawful
2 Notwithstanding Plaintiff’s previous iterations in not only this case (but others, too) that the alleged
seizure of his property occurred on February 15, 2019—clearly presenting a hard-and-fast application of
the relevant statute of limitations, O.C.G.A. § 9-3-33—he states in his First Amended Complaint that the
alleged seizure occurred “on or about” January 15, 2025. [Doc. 20-1, ¶ 12 (stating that allegations occurred
“[o]n February 15, 2019”)]; see, e.g., Amended Complaint, Downing v. Thompson, 5:23-cv-00501-TES (M.D.
Ga. Dec. 14, 2023), Dkt. No. 1, at pp. 2–4 (same); Complaint, Downing v. Thompson, 5:24-cv-00277-TES
(M.D. Ga. Aug. 14, 2024), Dkt No. 1, at pp. 1–4 (same)]; see also [Doc. 23, p. 20 n. 10 (discussing judicial
notice)].
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authority, violating the Fourth Amendment.” [Id. at ¶¶ 14–15]. In Count II, Plaintiff
asserts that on that same date, Stratham and those same co-defendants “deprived [him]
of [his] property without notice, [a] hearing, or lawful process” in violation of the Fifth
and Fourteenth Amendments. [Id. at ¶¶ 16–17]. Then, in Count III, Plaintiff asserts that
Stratham and her two co-defendants, “acting jointly and in agreement, conspired under
color of law to deprive [him] of his constitutional rights.” [Id. at ¶¶ 18–19].
Accepting Plaintiff’s allegation as true with respect to when these alleged
violations took place, all that remains (other than the two identity-lacking allegations
discussed above) are textbook conclusory, the-defendant-unlawfully-harmed-me
accusations. McCullough, 907 F.3d at 1333 (quoting Iqbal, 556 U.S. at 679); cf. Seiger ex rel
Seiger v. Phillip, 735 F. App’x 635, 638 (11th Cir. 2018) (holding it was an abuse of
discretion for a district court to reject allegations in a subsequent complaint that were
contradicted by an earlier pleading); see, e.g., [Doc. 15, ¶¶ 9–13]. As such, they are not
enough to raise a right to relief under 42 U.S.C. § 1983 “above the speculative level.”
McCullough, 907 F.3d at 1335 (quoting Twombly, 550 U.S. at 555). A complaint must
contain enough factual allegations to “allow . . . [c]ourt[s] to draw the reasonable
inference that [a] defendant is liable for the misconduct alleged.” Id. (quoting Iqbal, 556
U.S. at 679). On the whole, Plaintiff’s allegations with respect to Counts I, II, and III
from the First Amended Complaint do not provide enough for the Court to make that
reasonable inference. [Doc. 15, ¶¶ 8–19]. Accordingly, the Court GRANTS Stratham’s
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Motion to Dismiss and DISMISSES Plaintiff’s § 1983 claims asserted against her in the
First Amended Complaint with prejudice. [Id. at ¶¶ 14–19].
MOTION TO AMEND
Six rounds of “trial-and-error pleading practices” later, Plaintiff has filed a New
Proposed Second Amended Complaint [Doc. 28-1] on December 4, 2025, for the Court’s
review. See generally [Doc. 28-1]. In it, he asserts the same § 1983-based claims against
Stratham, and he also seeks to add Bibb County (again) as a defendant under Monell v.
Department of Social Services, 436 U.S. 658 (1978).
A. 	Federal Rule of Civil Procedure 15
Federal Rule of Civil Procedure 15 provides that district courts “should freely
give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). “But [a] court’s discretion
to deny leave is not unfettered.” Seiger, 735 F. App’x at 638. Rather, the Eleventh Circuit
directs district courts to “consider factors such as ‘undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, and futility of amendment.’” Id. (quoting Equity Lifestyle Properties, Inc. v.
Fla. Mowing And Landscape Serv., Inc., 556 F.3d 1232, 1241 (11th Cir. 2009)). The presence
of each of these factors is, in this Court’s opinion, incontrovertible.
Throughout this case Plaintiff has, rather transparently, engaged in a clear
pattern of willful delay. Instead of prosecuting this case within the spirit of the Federal
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Rules of Civil Procedure, Plaintiff has prolonged the life of this case by “kicking the can
down the road” at every possible turn. See Fed. R. Civ. P. 1 (The Federal Rules of Civil
Procedure “should be construed, administered, and employed by the [C]ourt and the
parties to secure the just, speedy, and inexpensive determination of every action and
proceeding.”) (emphasis added). The Court will not allow this pattern of abuse on the
judiciary to continue. Plaintiff’s exhibition of bad faith is evidenced by his repeated
failure to cure deficiencies within his pleadings until one of the served parties or the
Court pointed them out to him one by one. See [Doc. 23, pp. 12–13]. Even if Plaintiff had
viable claims within his New Proposed Second Amended Complaint, it’s highly
unlikely the Court would permit the amendment given the clear prejudice that would
befall Stratham. Why not Bibb County? Well, Bibb County has never been a named
defendant or party in the case, so there really wouldn’t be any prejudice to it. There is,
however, the futility route, and it does apply to both Strathman and Bibb County.
So, notwithstanding the “procedural mess” this case has become, the Court will,
as an alternative ruling, address the contents of Plaintiff’s most recent Motion for Leave
to Amend, see [Doc. 28], rather than base denial exclusively on the “undue delay,”
“repeated failure to cure,” or “undue prejudice” routes. Equity Lifestyle Properties, 556
F.3d at 1241; see also Foman v. Davis, 371 U.S. 178, 182 (1962) (holding that undue delay is
sufficient basis for a denial of leave to amend); [Doc. 23, p. 11]; [Doc. 27, p. 7 n.2
(discussing undue delay)].
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B. 	Claims Against Stratham
As the Court has already ruled, Plaintiff “can’t use § 1983 as a remedy to recover
his supposed 600 bitcoins.” [Doc. 23, p. 23]. Still though, over and over Plaintiff is
relentless in his arguments about “adequate process” and that “adequate process” was
not given to him when it came to the alleged loss of his property. [Doc. 34, pp. 9–11].
That doesn’t mean one isn’t available, though. As Plaintiff also argues, “[t]he Eleventh
Circuit holds that refusal to provide a process for return of seized property violated due
process” “when [the] [S]tate provides no adequate procedure[.]” [Id. at p. 9 (emphasis
added) (citing Lindsey v. Storey, 936 F.2d 554, 561 (11th Cir. 1991))]. That’s correct.
In his Response [Doc. 34], however, Plaintiff cites to Horton v. Board of County
Commissioners of Flagler County for the proposition that “state remedies do not defeat
claims based on established state procedures or intentional acts by state officials.” [Id. at
p. 11 (citing 202 F.3d 1297, 1300–01 (11th Cir. 2000))]. That’s not correct. Plaintiff
misreads Horton. Horton stands for the clear proposition that federal courts “can and
do,” “because of supplemental jurisdiction under 28 U.S.C. § 1367(a),” “adjudicate state
law claims.” 202 F.3d at 1300 (emphasis added). The state law claims discussed in
Horton, however, were removed to a federal district court, and the Eleventh Circuit
suggested that the district court “should have reached a decision” on them “because of”
§ 1376(a). Id. at 1302. As discussed below, though, there is no state law claim asserted in
either the First Amended Complaint or Plaintiff’s New Proposed Second Amended
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Complaint. See generally [Doc. 15]; [Doc. 28-1]. In short, Horton doesn’t operate the way
Plaintiff thinks it does.
Moreover, the Eleventh Circuit has confirmed, in post-Horton cases, that Horton
squarely speaks to the absence of a procedural due process violation when state courts
fail to “‘generally . . . provide an adequate remedy for the procedural deprivation the
federal court plaintiff claims to have suffered.’” Ficken v. City of Dunedin, Fla., No. 21-
11773, 2022 WL 2734429, at *3 (11th Cir. July 14, 2022) (quoting Horton, 202 F.3d at 1300);
see also Randel v. Rabun Cnty. Sch. Dist., No. 21-12760, 2022 WL 1195655, at *2 (Apr. 22,
2022). So, Horton stands for the exact opposite of what Plaintiff’s says it does. Georgia
courts, for this issue, undeniably supply an adequate remedy, and Plaintiff’s refusal to
use it doesn’t alter the outcome here. See Kessler v. City of Key West, No. 21-11069, 2022
WL 590892, at *3 (11th Cir. Feb. 28, 2022) (discussing that the “viability” of a plaintiff’s
claim “does not turn on whether [he] presented the claim to the state courts”).
Even taking Plaintiff’s allegations as true, the law simply doesn’t allow for a
“procedural due process violation . . . ‘[since] a meaningful [post-deprivation] remedy is
available for the loss.’” Lindsey, 936 F.2d at 561 (quoting Hudson v. Palmer, 468 U.S. 571,
533 (1984)). Under Georgia law, “[t]he owner of personalty is entitled to its possession,”
and “[a]ny deprivation of such possession is a tort for which an action lies.” O.C.G.A. §
51-10-1. The existence of § 51-10-1 supplies the avenue for Plaintiff to recover the
alleged loss of 600 bitcoins worth approximately $57,000,000. See [Doc. 23, p. 2 n.1]. So
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again, Plaintiff’s attempt to use § 1983 to recover his allegedly stolen bitcoins is
rendered futile by § 51-10-1 of the Georgia Code, and the Court DENIES leave to
amend with respect to Stratham. See Silberman v. Mia.-Dade Transit, 927 F.3d 1123, 1133
(11th Cir. 2019) (discussing denial based on futility of amendment).
With respect to state law causes of action, Plaintiff does not, in his First Amended
Complaint or his New Proposed Second Amended Complaint, assert one against
Stratham. [Doc. 15, ¶¶ 14–19]; but see [Doc. 23, p. 24], in connection with [Doc. 1, p. 2].
Had he, his lack of allegations concerning citizenship spell additional problems for
him.3 In his latest effort to amend, Plaintiff fails to allege his citizenship for purposes of
28 U.S.C. § 1332(a)(1) to support diversity jurisdiction. See generally [Doc. 28-1]. In at
least one filing, however, Plaintiff has made allegations lending to his citizenship as
being “Bibb County, Georgia,” and in others, including the First Amended Complaint
and his signature blocks, he indicates he’s currently in Winter Haven, Florida. [Doc. 20-
1, ¶ 4]; see also [Doc. 15, ¶ 4]; [Doc. 28-1, p. 5]. Certainly, though, residency alone does
not equate to citizenship. See McCormick v. Aderholt, 293 F.3d 1254, 1257–58 (11th Cir.
2002). “Citizenship is equivalent to ‘domicile’ for purposes of diversity jurisdiction,”
and domicile is “the place of ‘[a person’s] true, fixed, and permanent home and
3 To the extent the Court should have considered Plaintiff’s state law claims pressed against certain
defendants at the outset of this case under diversity jurisdiction, once it dismissed the federal claims
against them, the contents of his original Complaint put forth absolutely no effort to sufficiently plead the
citizenship of any named defendant. See [Doc. 1, p. 2]; [Doc. 13, pp. 13–15]; see also n.4, infra.
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principal establishment . . . to which he has the intention of returning whenever he is
absent therefrom[.]’” Id. (quoting Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir. 1974), cert.
denied, 419 U.S. 842 (1974)). In any event, Plaintiff’s allegations on the topic are far from
adequately pled.
Candidly, Plaintiff may have sufficiently pled citizenship in one pleading for
himself, but he failed to sufficiently plead citizenship with respect to one or some of his
defendants in another. There is not one pleading on this record where the citizenship of
all parties is adequately or sufficiently set forth in one document. See, e.g., [Doc. 1, p. 1];
[Doc. 8, p. 2]; [Doc. 15, ¶¶ 1–7]; [Doc. 20-1, ¶¶ 4–11]; [Doc. 25, p. 1]; [Doc. 28-1, p. 1].
Had Plaintiff asserted a state law cause of action against Stratham in his New Proposed
Second Amended Complaint, he would have been required to “allege the citizenship of
each party,” and he failed to do so. Travaglio v. Am. Express Co., 735 F.3d 1266, 1268 (11th
Cir. 2013); see generally [Doc. 28-1]. This repeated failure would also subject Plaintiff’s
state law claim, had one been asserted, to dismissal.4
With no claim pending against Statham via either the First Amended Complaint
or the New Proposed Second Amended Complaint, she may be TERMINATED as a
party to this case. This, of course, leaves only Plaintiff’s second effort to state a claim
against Bibb County in his New Proposed Second Amended Complaint, but that effort
4 “Without such allegations, district courts are constitutionally obligated to dismiss the action altogether if
the plaintiff does not cure the deficiency.” Travaglio v. Am. Exp. Co., 735 F.3d 1266, 1268 (11th Cir. 2013)
(citing Stanley v. C.I.A., 639 F.2d 1146, 1159 (5th Cir. Unit B Mar. 1981)).
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is futile as a matter of law.
C. 	Claims Against Bibb County Under Monell
Plaintiff’s second effort to bring Bibb County into this case via his New Proposed
Second Amended Complaint fails. [Doc. 28-1, pp. 1, 3–4]. Plaintiff alleges that Stratham
is “a county employee” “tasked with intake, storage, and release of all property in the
[Bibb County] Sheriff’s custody.” [Id. at p. 1]. However, as the Court has already told
Plaintiff in a previous order from this case, “a county sheriff is independent of and not
answerable to the governing authorities of the respective geographical county that
sheriff serves.” [Doc. 23, p. 10 n.2 (citing Grech v. Clayton Cnty., 335 F.3d 1326, 1336 (11th
Cir. 2003))]. As such, Plaintiff makes no allegation against Bibb County regarding acts
for which the county is responsible. See Grech, 335 F.3d at 1336–37. Put as simply as the
Court can put it, Bibb County has no control over the Bibb County Sheriff or the
practices he uses for his employees to follow. See Edwards v. Jackson, No. 25-0246-KD-
MU, 2025 WL 3466614, at *5 (S.D. Ala. Oct. 7, 2025).
When it comes to liability in the context of this case, Georgia’s courts “speak with
unanimity.” Grech, 335 F.3d at 1337. A “county cannot be held liable for the tortious
actions of the sheriff or his [employees] in performing their . . . activities.” Wayne Cnty.
Bd. of Comm’rs v. Warren, 223 S.E.2d 133, 134 (Ga. 1976) (“[A] county has no liability in
connection with the violations of the civil rights of any person by a county officer.”).
Therefore, Plaintiff’s latest effort to sew a Monell claim into this case against Bibb
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County is futile and must be DENIED as such. See Silberman, 927 F.3d at 1133
(discussing denial based on futility of amendment).
CONCLUSION
Consistent with the foregoing, the Court GRANTS Stratham’s Motion to Dismiss
and DISMISSES Plaintiff’s claims against her with prejudice. Then, with respect to
Plaintiff’s Motion for Leave to Amend, the Court DENIES it AS FUTILE.
There being no remaining parties in this case, the Court DIRECTS the Clerk of
Court to ENTER Judgment accordingly and CLOSE it.
SO ORDERED, this 16th day of December, 2025.
S/ Tilman E. Self, III
TILMAN E. SELF, III
UNITED STATES DISTRICT JUDGE
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