Poss v. Moreland
Poss v. Moreland
Opinion of the Court
John Terry Moreland filed suit for damages in Fulton Superior Court against Carl W. Poss, Sr., an attorney, and others. He alleged Poss had wrongfully caused him to be arrested and confined. The complaint sets forth several state law tort claims and a claim under Federal law, 42 USC §§ 1983 and 1988. After discovery, Poss filed a motion for summary judgment as to all claims then pending against him. The trial court granted the motion and Moreland appealed to the Court of Appeals. The Court of Appeals affirmed the trial court except as to the federal law claims and as to one of the state law claims, false imprisonment. We granted certiorari to determine if the grant of summary judgment against the federal law claims was proper.
We must decide whether, under the facts of this case, a claim exists under 42 USC §§ 1983 and 1988 against a private attorney who filed a pleading which purported to order the arrest of the plaintiff for contempt of a court order, and plaintiff was arrested and confined, when there had been no arrest order from the court. We conclude the answer is no.
The facts as developed below in the pleadings and on discovery established that attorney Poss filed a “citation for contempt” in DeKalb Superior Court on February 9, 1981. Poss signed this document as attorney for plaintiff. In it were allegations that John Terry More-land had failed to abide by a divorce settlement agreement and would soon be in arrears in the sum of $432. Paragraph 4 stated: “It is further ordered by this Court that the Sheriff of DeKalb County or his lawful deputy arrest the defendant, John Terry Moreland, and incarcerate him in the common jail of DeKalb County until he purges himself of this contempt by paying to Lisa Bailey Moreland the sum of Three Hundred ($300.00) Dollars in arrearage of child support and One Hundred Thirty Two ($132.00) Dollars in arrearage on the automobile.” The prayer was for judgment against Moreland for $432 plus attorney fees and costs. Attached to this document was an order signed by a DeKalb Superior Court Judge ordering service on More-land and that he show cause at a scheduled hearing why plaintiff’s
Other defendants named below included the sheriffs of DeKalb and Rockdale Counties and a number of their employees. While it is disputed, certain employees testified that Poss called several times to inquire why the arrest had not been made. Apparently believing a valid arrest order existed, deputies of the Rockdale County Sheriff arrested Moreland and delivered him to DeKalb County deputies where he was confined several hours. Upon payment of $432, More-land was released.
Our decision is controlled by the opinion in Lugar v. Edmondson Oil Co., 457 U. S. 922 (102 SC 2744, 73 LE2d 482) (1982). 42 USC § 1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .”
In Lugar, supra, the court adhered to the basic approach earlier laid down in Adickes v. S. H. Kress & Co., 398 U. S.144 (90 SC 1598, 26 LE2d 142) (1970) and followed in Flagg Bros. v. Brooks, 436 U. S. 149 (98 SC 1729, 56 LE2d 185) (1978).
A. The deprivation must be caused by:
(i) The exercise of some right or privilege created by the state, or
(ii) a rule of conduct imposed by the state, or
(iii) a person for whom the state is responsible.
B. The party charged with the deprivation must be a “state actor” in that:
*731 (i) He is a state official, or
(ii) he has acted together with or has obtained significant aid from state officials, or
(iii) his conduct is otherwise chargeable to the state.
A and B are separate requirements each of which is necessary to
This case .is not controlled by either Davis v. City of Roswell, 250 Ga. 8 (295 SE2d 317) (1982) or City of Cave Spring v. Mason, 252 Ga.
The record discloses an absence of any genuine issue as to any material fact concerning the federal law claim. OCGA § 9-11-56 (c). Therefore, the trial court properly granted summary judgment and we must reverse the Court of Appeals’ opinion to the contrary. The case is remanded for further consideration of the issues now pending in the trial court and for the claim of false imprisonment against Poss.
Judgment reversed.
The court first determined that if the conduct depriving a plaintiff of rights amounts to “state action” under former decisions, it also amounts to action “under-color-of-state-law” as used in § 1983.
For an excellent analysis of these two opinions and the overall impact of Monell v. Dept of Social Services, 436 U. S. 658 (98 SC 2018, 56 LE2d 611) (1978), see: R. Perry Sentell, Georgia Local Government Law’s Assimilation of Monell: Section 1983 and the new “Persons. ” The Michie Company 1984.
Concurring Opinion
concurring specially.
I concur in the opinion of the majority, but I deem it important to point out that Moreland does not contend that Poss conspired with the other defendants to deprive him of his civil rights. If there was a material question of fact as to whether such a conspiracy existed, summary judgment would not be appropriate. Adickes v. S. H. Kress & Co., 398 U. S. 144, 152 (90 SC 1598, 26 LE2d 142) (1970).
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