FIFTH DIVISION REESE, P. J., MARKLE and COLVIN, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS COURT. ALL FILINGS MUST BE SUBMITTED WITHIN THE TIMES SET BY OUR COURT RULES.
September 11, 2020
In the Court of Appeals of Georgia A20A1567. MELTON et al. v. McCARTHAN.
COLVIN, Judge.
When the trial court denied Deputy Richard Melton and Sergeant Khalid
Wise’s motion for summary judgment, they sought and we granted interlocutory
review. On appeal, they argue that the trial court erred in finding that material issues
of fact precluded summary judgment on the grounds of official immunity. For the
reasons that follow, we affirm in part and reverse in part.
“Summary judgment is proper when there is no genuine issue of material fact
and the movant is entitled to judgment as a matter of law. We review the grant or
denial of summary judgment de novo, construing the evidence in favor of the
nonmovant.” (Citation and punctuation omitted.) Klingensmith v. Long County, 352
Ga. App. 21, 21 (833 SE2d 608) (2019). So viewed, the record shows that, in July 2011, Johnnie McCarthan was
incarcerated in the Fulton County Jail. On July 27, 2011, during the 7:00 a.m. through
3:00 p.m. shift, McCarthan’s newly assigned cellmate attacked him. The cellmate
threw objects and feces throughout the cell; he pushed and attempted to hurt
McCarthan. In response, McCarthan grabbed the cellmate and began to yell for help.
Deputy Melton responded to the cell, grabbed and forced the cellmate to his knees,
pushed him onto the ground, and handcuffed him . Deputy Melton then moved him
out of the cell. Deputy Melton did not complete an incident report and testified that
he had no recollection of any incident between McCarthan and his cellmate on July
27, 2011.
At the afternoon shift change, Deputy Melton left for the day and Sergeant
Wise arrived to find the cellmate out of his assigned cell. Having no knowledge of the
earlier altercation, Sergeant Wise ordered the cellmate back in his assigned cell. Soon
after being placed in the cell, the cellmate violently attacked and injured McCarthan.
McCarthan filed suit against Deputy Melton and Sergeant Wise, alleging that
their failure to perform their ministerial duties resulted in the injuries he sustained.
Specifically, McCarthan alleged that Deputy Melton and Sergeant Wise failed to
follow jail policies 1500-17 and 0300-18, which govern procedures for reporting
2 violent incidents and shift roll call meetings. The trial court denied Deputy Melton
and Sergeant Wise’s motion for summary judgment, and this interlocutory appeal
followed.
The Georgia Constitution provides that “all officers and employees of the state
or its departments and agencies may be subject to suit and may be liable for injuries
and damages caused by the negligent performance of, or negligent failure to perform,
their ministerial functions. . . .” Ga. Const. of 1983, Art. I, Sec. II, Par. IX (d). Public
employees are not held liable for discretionary acts unless “they act with actual malice
or with actual intent to cause injury in the performance of their official functions.” Id.
A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.
McDowell v. Smith, 285 Ga. 592, 593 (678 SE2d 922) (2009).
“Where there is an established policy requiring an official to take specified
action in a specified situation, the policy creates a ministerial duty on the part of the
official to perform the specified task.” (Citation omitted.) Grammens v. Dollar, 287
3 Ga. 618, 620 (697 SE2d 775) (2010). In order for a written policy to impose a
ministerial duty, it “must mandate simple, absolute, and definite action and require
the execution of a specific task without any exercise of discretion.” (Citation
omitted.) Id. “When a policy requires a public official to exercise discretion in its
implementation by determining if the necessary prerequisite condition to the
ministerial act exists, the policy does not require the performance of a ministerial
duty[.]” (Citation omitted.) Hill v. Jackson, 336 Ga. App. 679, 684 (1) (783 SE2d
719) (2016).
1. Deputy Melton argues that the trial court erred in finding he was not entitled
to official immunity as a matter of law. Specifically, Deputy Melton contends that his
duty to report incidents under Policy 1500-17 was discretionary, not ministerial. We
disagree.
Policy 1500-17 states in relevant part,
(II) (1) Incidents which result in physical harm or threaten the safety of any person in the facility, or threaten the orderly control and security of the facility, will be documented in an Incident Report and submitted to appropriate supervisor no later than the conclusion of the tour of duty when any of the following occur: A. Discharge of a firearm or other weapon[;] B. Use of chemical agents to control inmates[:] C. Use of
4 force to control inmates[;] D. Inmates remaining in restraints at the end of the shift.
(II) (2) All incidents involving use of force that have the potential for injury should be recorded to establish the identities of the staff, inmates or others involved and to describe the nature of the incident. (Emphasis supplied).
While maintaining that he had no knowledge of the initial incident between
McCarthan and the cellmate, Deputy Melton contends that his duty to create an
incident report was not triggered because he had to use discretion to determine
whether the incident threatened any person’s safety or threatened the orderly control
and security of the facility. Although the policy does not define what constitutes
physical harm or an incident threatening a person’s safety or the orderly control and
security of the facility, McCarthan provided evidence that any fight, “nick on the
face[,]” or “bump on the lip” required a report to be completed.
This evidence shows that Deputy Melton had no discretion to determine
whether an event triggered the duty to create an incident report. See Hill, 336 Ga.
App. at 685-686 (1) (i) (duty created by an internal policy was ministerial where there
was no evidence that the employee had authority to deviate from the specified
procedure). Along with the evidence that Deputy Melton used force to subdue the
5 cellmate after the initial incident, McCarthan has shown that the conditions requiring
the creation of an incident report were met. Therefore, Deputy Melton had a
ministerial duty to create a report of the initial incident prior to the end of his shift
and was not entitled to official immunity as a matter of law. Given that Deputy
Melton denied knowledge of the initial incident, the trial court did not err in
determining that a dispute of material fact prevents summary judgment as to whether
a ministerial duty was breached. See Hill, 336 Ga. App. at 686 (1) (i) (public
employee was not entitled to official immunity where the record contained conflicting
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FIFTH DIVISION REESE, P. J., MARKLE and COLVIN, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS COURT. ALL FILINGS MUST BE SUBMITTED WITHIN THE TIMES SET BY OUR COURT RULES.
September 11, 2020
In the Court of Appeals of Georgia A20A1567. MELTON et al. v. McCARTHAN.
COLVIN, Judge.
When the trial court denied Deputy Richard Melton and Sergeant Khalid
Wise’s motion for summary judgment, they sought and we granted interlocutory
review. On appeal, they argue that the trial court erred in finding that material issues
of fact precluded summary judgment on the grounds of official immunity. For the
reasons that follow, we affirm in part and reverse in part.
“Summary judgment is proper when there is no genuine issue of material fact
and the movant is entitled to judgment as a matter of law. We review the grant or
denial of summary judgment de novo, construing the evidence in favor of the
nonmovant.” (Citation and punctuation omitted.) Klingensmith v. Long County, 352
Ga. App. 21, 21 (833 SE2d 608) (2019). So viewed, the record shows that, in July 2011, Johnnie McCarthan was
incarcerated in the Fulton County Jail. On July 27, 2011, during the 7:00 a.m. through
3:00 p.m. shift, McCarthan’s newly assigned cellmate attacked him. The cellmate
threw objects and feces throughout the cell; he pushed and attempted to hurt
McCarthan. In response, McCarthan grabbed the cellmate and began to yell for help.
Deputy Melton responded to the cell, grabbed and forced the cellmate to his knees,
pushed him onto the ground, and handcuffed him . Deputy Melton then moved him
out of the cell. Deputy Melton did not complete an incident report and testified that
he had no recollection of any incident between McCarthan and his cellmate on July
27, 2011.
At the afternoon shift change, Deputy Melton left for the day and Sergeant
Wise arrived to find the cellmate out of his assigned cell. Having no knowledge of the
earlier altercation, Sergeant Wise ordered the cellmate back in his assigned cell. Soon
after being placed in the cell, the cellmate violently attacked and injured McCarthan.
McCarthan filed suit against Deputy Melton and Sergeant Wise, alleging that
their failure to perform their ministerial duties resulted in the injuries he sustained.
Specifically, McCarthan alleged that Deputy Melton and Sergeant Wise failed to
follow jail policies 1500-17 and 0300-18, which govern procedures for reporting
2 violent incidents and shift roll call meetings. The trial court denied Deputy Melton
and Sergeant Wise’s motion for summary judgment, and this interlocutory appeal
followed.
The Georgia Constitution provides that “all officers and employees of the state
or its departments and agencies may be subject to suit and may be liable for injuries
and damages caused by the negligent performance of, or negligent failure to perform,
their ministerial functions. . . .” Ga. Const. of 1983, Art. I, Sec. II, Par. IX (d). Public
employees are not held liable for discretionary acts unless “they act with actual malice
or with actual intent to cause injury in the performance of their official functions.” Id.
A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.
McDowell v. Smith, 285 Ga. 592, 593 (678 SE2d 922) (2009).
“Where there is an established policy requiring an official to take specified
action in a specified situation, the policy creates a ministerial duty on the part of the
official to perform the specified task.” (Citation omitted.) Grammens v. Dollar, 287
3 Ga. 618, 620 (697 SE2d 775) (2010). In order for a written policy to impose a
ministerial duty, it “must mandate simple, absolute, and definite action and require
the execution of a specific task without any exercise of discretion.” (Citation
omitted.) Id. “When a policy requires a public official to exercise discretion in its
implementation by determining if the necessary prerequisite condition to the
ministerial act exists, the policy does not require the performance of a ministerial
duty[.]” (Citation omitted.) Hill v. Jackson, 336 Ga. App. 679, 684 (1) (783 SE2d
719) (2016).
1. Deputy Melton argues that the trial court erred in finding he was not entitled
to official immunity as a matter of law. Specifically, Deputy Melton contends that his
duty to report incidents under Policy 1500-17 was discretionary, not ministerial. We
disagree.
Policy 1500-17 states in relevant part,
(II) (1) Incidents which result in physical harm or threaten the safety of any person in the facility, or threaten the orderly control and security of the facility, will be documented in an Incident Report and submitted to appropriate supervisor no later than the conclusion of the tour of duty when any of the following occur: A. Discharge of a firearm or other weapon[;] B. Use of chemical agents to control inmates[:] C. Use of
4 force to control inmates[;] D. Inmates remaining in restraints at the end of the shift.
(II) (2) All incidents involving use of force that have the potential for injury should be recorded to establish the identities of the staff, inmates or others involved and to describe the nature of the incident. (Emphasis supplied).
While maintaining that he had no knowledge of the initial incident between
McCarthan and the cellmate, Deputy Melton contends that his duty to create an
incident report was not triggered because he had to use discretion to determine
whether the incident threatened any person’s safety or threatened the orderly control
and security of the facility. Although the policy does not define what constitutes
physical harm or an incident threatening a person’s safety or the orderly control and
security of the facility, McCarthan provided evidence that any fight, “nick on the
face[,]” or “bump on the lip” required a report to be completed.
This evidence shows that Deputy Melton had no discretion to determine
whether an event triggered the duty to create an incident report. See Hill, 336 Ga.
App. at 685-686 (1) (i) (duty created by an internal policy was ministerial where there
was no evidence that the employee had authority to deviate from the specified
procedure). Along with the evidence that Deputy Melton used force to subdue the
5 cellmate after the initial incident, McCarthan has shown that the conditions requiring
the creation of an incident report were met. Therefore, Deputy Melton had a
ministerial duty to create a report of the initial incident prior to the end of his shift
and was not entitled to official immunity as a matter of law. Given that Deputy
Melton denied knowledge of the initial incident, the trial court did not err in
determining that a dispute of material fact prevents summary judgment as to whether
a ministerial duty was breached. See Hill, 336 Ga. App. at 686 (1) (i) (public
employee was not entitled to official immunity where the record contained conflicting
evidence of his knowledge of the condition which triggered the ministerial duty).
2. Sergeant Wise also argues that the trial court erred when it found that he was
not entitled to official immunity as a matter of law because his duty to investigate
under Policy 0300-18 was discretionary. We agree.
Although Sergeant Wise argues that Policy 0300-18 imposes a discretionary
rather than a ministerial duty, we need not reach this issue. Policy 0300-18, which
governs the roll call procedures at the start of each shift, provides that “[i]t is the
responsibility of the oncoming watch commander/assistant watch commander to
arrive for duty in sufficient time to review prior events and material(s) for Roll-Call
Training and shall prioritize information chronologically for effective dissemination.”
6 The policy further explains that “[a]t the start of Roll-Call, the shift watch commander
or designee shall advise employees of . . . [n]oteworthy events or possible hazardous
situations from prior shifts.”
McCarthan argues that Policy 0300-18 imposes an affirmative duty to
investigate events from the previous shift but has provided no evidence to support
this reading of the policy. The undisputed evidence shows, however, that Sergeant
Wise was a floor supervisor who had no knowledge of the initial incident because no
incident report was filed before the end of the previous shift. Even assuming that
Sergeant Wise was a watch commander or assistant watch commander, his lack of
knowledge of the initial incident precludes a finding that he had a duty to inform
himself or staff. Without knowledge that the initial incident occurred, Sergeant Wise
could not advise employees of it. In the absence of any evidence that Sergeant Wise
breached a ministerial duty, he is entitled to official immunity as a matter of law. See
Grammens, supra, 287 Ga. at 620-621 (2010) (teacher was entitled to official
immunity where a school policy did not impose a ministerial duty).
Judgment affirmed in part and reversed in part. Reese, P. J., and Markle, J.,
concur.