Sei sulla pagina 1di 10
Electronically Filed Erica L, Woodford, Cler Bibb County Supetior Cour Docket Date: 929/207 12:04 AN Raven Alston IN THE SUPERIOR COURT OF BIBB COUNTY STATE OF GEORGIA KENNETH JOHNSON ) and JACQUELYN JOHNSON, ) CIVIL ACTION Appellants/Plaintiffs, FILE NO.: 2017-CV-067039 vs. ) BRANDEN BELL, et al., ) AppelleesDefendants. ) PLAINTIFFS RESPONSE TO RODNEY BRYAN, AMY BRASWELL, STEVE TURNER, DR. MARYANNE GAFFNEY-KRAFT, WES HORNE, AND LINDSAY MARCHANT’S MOTION TO DISMISS ‘NOW COMES the Plaintiffs KENNETH JOHNSON and JACQUELYN JOHNSON, and by and through their undersigned counsel, file this response to the Motion to Dismiss as filed by Defendants Rodney Bryan, Amy Braswell, Steve Turner, Dr. Maryanne Gaffhey-Kraft, Wes ‘Home, and Lindsay Marchant. This motion was filed on or about August 11, 2017, and prior to the expiration of the 33 days which followed, Plaintiffs filed a motion for extension of time in which to extend the time frame in which plaintiffs may file a response that is deemed to be considered as timely. Accordingly, Plaintiffs submit the following for this Court's consideration. 1 Background, Plaintiffs filed the above styled matter on or about July 7, 2017. In the Complaint, it is alleged that Kendrick Johnson, plaintiffs’17-year-old son, died while as astudent at Lowndes High School Valdosta, Georgia. The lawsuit also alleges that their son’s body was taken to the Crime Lab for the Georgia Burean of Investigation (“G.B.L”) for an antopsy and that Dr. ‘Maryanne Gafiney-Kraft claimed that the cause of death was positional asphyxia and that the manner of death was an accident. The plaintiffs’ lawsuit also alleges that Dr. Gaffney-Kraft and Rodney Bryan illegally destroyed Kendrick Johnson’s internal organs and clothing, as well as, deliberately misrepresented the cause and manner of death to facilitate a cover-up of what plaintifis maintain was a homicide that involved the misconduct of others, including Brian Bell and Brandon Bell. As the Fourth Canse of Action in the Complaint, the Plaintifis allege that there are tissue specimens which were collected by Dr. William Anderson during the course ofa second antopsy, which he performed and which plaintiffs allege that Dr. Gafthey-Kraft, as the official death examiner or proscctor, has a duty to examine for purposes of discerning whether her original findings are in error. Plaintiffs also alleged that notwithstanding Dr. Anderson’s request that Dr. Gafthey-Kraft examine the tissue specimens he collected, “Dr. Maryanne Gaftney-Kraft nor any member of the Georgia Buremn of Investigation have shown an inclination or desire to examine [the] tissue specimens...” in the interests of correcting the findings in an official investigation. Accordingly, the plaintiffs set forth in [139 of their complaint the prayer that the Defendant Maryanne Gaffney-Krait.. make arrangements for the examination of the tissue specimens collected by Dr. William Anderson and upon doing so, give proper consideration to such evidence as dictated by her honest and professional judgment.” ‘The State of Georgia defendants, which inchide Defendants Rodney Bryan, Amy Braswell, Steve Turner, Dr. Maryanne Gaffney-Krafl, Wes Home, and Lindsay Marchant, have moved to dismiss plaintiffs’ lawsuit on several grounds, In the first instance, these defendants, with the exception of Defendants Gaffney-Kraft and Rodney Bryan, argue that this Court does not have personal jurisdiction over the remaining (4) defendants due to a failure to serve them with process, As a second basis for defendants? motion to dismiss, they argue that noiwithstanding the service of process issue, the State of Georgia defendants are immune from suit becanse of plaintiff's failure to comply with the requirements of the Georgia Tort Claims Act (GTCA”), In that regard, the defendants argue that the State never received a pre-stit ante-litem notice regarding the death of Kendrick Johnson, And lastly, the State argues that althongh the GTCA requires that venue is proper only where the alleged tort giving rise to the loss occurred or, in this ease, in Lowndes County, dismissal is appropriate because transfer of the case to Lowndes County would still fail to cure the lack of subject matter jurisdiction which no court will be ever able to overcome. In response, plaintiffs acknowledge (as opposed to “concede”) the merits of each of the arguments posed by the state with the exception of two. The issues in question specifically pertain to plaintiff s claims for injunctive relief. The defendants contend that any such claim for injunctive relief is barred by sovereign immunity. Plaintiff, on the other hand, contend that because they are suing Defendant Gaftney-Kraft, in her individual capacity, the issue, in this regard, is whether she is entitled to a dismissal of plaintiff's claims against her on the grounds of official immunity. In response, plaintiffs contend that dismissal on the grounds of official immunity is not appropriate at this stage of the proceedings. Consequently, if Defendant Gafihey- Kraft is not entitled to dismissal of plaintiffs” claim for injunctive relief because this claim is against her, in her individual capacity, then it is also inappropriate to have this case dismissed, or transferred to a different venue when, as adefendant in an action seeking equitable relief, she resides in Bibb County, Accordingly, the plaintiffs will address these issues as follows: A, Whether Plaintiffs’ Claim for Injunctive Relief Is Barred by Official Immunity ‘The brief in support of the motion to dismiss as submitted by Defendant Gatfney-Kraft and the other five (5) State defendants have framed or referred to the issue regarding plaintiffs’ claim for injunctive relief as whether this claim is barred by sovereign immunity. Plaintiff’ contend, however, that when considering whether dismissal of the entire action appropriate, or whether there is any need to consider changing venue, that the more salient issue is whether there is any claim that the plaintiffs have against Defendant Gaffney-Krafl which could survive a motion to dismiss at this stage of the proceedings. Plaintiff's contend that because their claim for injunctive reliefhas been asserted against Defendant Gafthey-Kraft, in her individual, as well as, official capacity, the question for this Court is whether official immunity precludes the plaintiffs from going forward in the prosecution of their suit at this time, To be clear, Plaintiffs contend that official immunity cannot, at this stage of the proceedings, cause plaintiffs" case to be dismissed, Jn support of plaintiffs” argument, we contend that the Supreme Court’s decision in Lathrop, et al. v. Deal, et al., 2017 Ga. Lexis 529, at "1 ($17A0196 June 19, 2017), provides a clear explanation as to why plaintiffs’ claims for injunctive relief are not be dismissed against Defendant Gaffney-Kraft in her individual capacity. In Lathrop, the Supreme Court ruled that while “the doctrine of sovereign immunity extends generally to suits against the State, its departments and agencies, and its officers, in their official capacities for injunctive and declaratory relief from official acts that are alleged to be unconstitutional,... we recognize the availability of other means by which agreed citizens may obtain relief from unconstitutional acts, including prospective relief fom the threatened enforcement of unconstitutional laws” Jn Lathrop, the plaintiffs were physicians whe were worried that the passage of an unconstitu- tional law regarding abortions would interfere with their practice of medicine and cause them to violate their patients” constitutional rights, brought suit against the State wherein they were seeking injunctive relief to restrain the State*s officials from enforcing the newly passed law. The trial court granted the State’s motion to dismiss on the grounds of sovereign immunity. On appeal, the State argued that the Georgia Constitution of 1983 (as amended in 1991) that “the constitutional doctrine of official immunity would bar a suit against a state officer in his individual capacity for injunctive for declaratory relief from the threat of official acts that would allegedly violate the Constitution.” In response, the Court stated, “Finally, we should add, the defendant-state officers have not cited a single case in which this Court, our Court of Appeals, or any other court has applied the doctrine of official immunity (or a doctrine like it) to bar a suit for injunctive or declaratory relief. We conclude that Article 1, Section II, Paragraph IX (d) concems suits and liabilities of public officers for monetary damages and other retrospective relief. It does not limit the availability of process back to relief. Accordingly, the plaintiff-physicians need not worry any longer that official immunity would bara suit like this one, if only it were brought against state officials in their individual capacities.” In light of the Court's foregoing and recent analysis, it is clear that the plaintiff in this case are seeking prospective, as opposed to retrospective, relief. According to the Complaint, the plaintifs have alleged, generally speaking, that notwithstanding state law which requires that death investigations be performed in a competent nd reasonable manner, that a decision, having the force of law, was made to ignore the tissue specimens and other such evidence suggesting the commission ofa crime. Hence, based upon the ruling in Lathrop, plaintiffs’ claims against defendants in their individual capacities for injunctive relief are not precluded through either the defense of sovereign immunity, nor any claim of noncompliance with GTCA. B. Ifthe Plaintiffs’ Claim for Injunctive Relief Is Not Barred by Official Immunity, Should this Court Transfer Venue to Lowndes County or Some Other Court? In this state, actions seeking equitable relief, such as specific performance, cancellation, and injunctions, must be filed in the county of the residents of one of the defendants against whom substantial relief is sought. See Simsv, Sims, 50 Ga, 572, 1874 WL 3140 (1874); Ellis v. Lamar, 44 Ga. 9, 1871 WL 2614 (1871); J._K. Orr Shoe Company v. Kimbrough, 99 Ga. 143, 25 S.E, 1006 (1918). In this case, the plaintiffs are seeking injunctive relief against a defendant who plaintiffs allege performed an autopsy on their son performed and thereafter prepared an inaccurate antopsy report. Because all of this was done by Defendant Maryanne Gafthey-Kraft, the relief sought is that she will reassess her findings and reach a proper conclusion based upon the evidence, as opposed to the input of her co-conspirators. Consequently, to argue that she is not someone whom substantial relief is sought is an argument that is disingemuous, and as a result, venue should remain in Bibb County, Georgia! C. Whether the plaintiffs claims are barred by OC GA §9-2-5. The State defendants argue that the plaintiffs’ claims are barred because acause of action forthe same claims asserted here is still pending in an action filed by plaintiff in the Superior Court of Lowndes County, Civil Action Number 2015-CV-706, and that the pendency of the former action is a defense to this action. This argument is without merit. Becanse plaintiffs As an additional reason for keeping venue in Bibb County, the court should take into consideration whether there is the likelihood that other defendants which have been named in plaintiff’ lawsuit will be dismissed for reasons having to do with issues other than sovereign immunity. dismissed their action in Civil Action Number 2015-CV-706, they were no longer “prosecuting’ to actions at the same time for the same cause of action against the same party. Instead, at the time that the plaintiffs brought this action, they were being sued (instead of suing), pursuant to the preservation of a.counterclaim which Brandon Bell, Brian Bell, and Rick Bell had brought fs. Moreover, some of the parties are different in Civil Action Number 2015- against the plai CV-706 when compared to the parties named in this action. As a consequence, the bar ofres judicata has no application in this case. IL Conclusion For the foregoing reasons, the Plaintiffs respectfully request that the action against Defendants Maryanne Gafthey-Kraft, as well as the remaining State defendants, not be dismissed. This 28th day of September, 2017. THE CB. KING LAW FIRM : (siChevene B. King, Jr. Chevene B. King, Jr Attomey for Plaintifis State Bar No.: 420105 Prepared by: Chevene B. King, Jr. Post Office Drawer 3468 Albany, GA 31706 (29436-0524. CERTIFICATE OF SERVICE Thereby certify that I have this day served a copy of the foregoing, upon the following attorneys of record at the addresses and by the methods indicated below: Patrick O'Connor Oliver Maner, LLP Post Office Box 10186 Savannah, GA 31412 O Hand Delivery Qemail OFax QU-S. Mail O FedEx Delivery George T. Talley Coleman Talley, LLP Post Office Box 5437 Valdosta, GA 31603-5437 O Hand Delivery Qemail OFax QU.S. Mail O FedEx Delivery L, Warren Tumer, Jt Altorney-al-Law Post Office Box 157 Valdosta, GA 31603 O Hand Delivery Qemail OFax QU-S. Mail O FedEx Delivery James L Elliott Elliott, Blackburn & Gooding, PC 3016 N. Patterson Street, Valdosta, GA 31602 Hand Delivery email OFax QUS. Mail O FedEx Delivery Paul Threlkeld Oliver Manor, LLP Post Office Box 10186 Savannah, GA 31412 Hand Delivery email OFax OU.S. Mail O FedEx Delivery Brice Ladson Ladson Law Firm, PC Post Office Box 281 Richmond Hill, GA 31324 Hand Delivery Gemail OFax QUS. Mail O FedEx Delivery Ron S. Boyter Assistant Attorney General AQ Capitol 8q., S.W. Atlanta, GA 30334-1300 U Hand Delivery Oemail OFax QU.S. Mail O FedEx Delivery Wayne S. Melnick Freeman Mathis & Gary 100 Galleria Pkwy., S.E. Suite 1690 Atlanta, GA 30339-5948 O Hand Delivery Qemail OFax QU-S. Mail O FedEx Delivery Mark H. Glidewell Brannen Searcy Smith P.O. Box 8002 Savannah, GA 31412 O Hand Delivery Qemail O Fax QU.S. Mail O FedEx John Gee Edwards Attorney-at-Law 108 Valley Street Valdosta, GA 31601 Hand Delivery Gemail OFax QU. Mail O FedEx Delivery Bryon D. Watson Attomey-al-Law Post Office Box 40 Valdosta, GA 31603 Hand Delivery Gemail OFax QUS. Mail O FedEx Delivery This 28th day of September, 2017. THE CB. KING LAW FIRM BY: /s/Chevene B, King, Jr. Chevene B. King, Jr Attomey for Plaintifis State Bar No.: 420105 Prepared by: Chevene B. King, Jr. Post Office Drawer 3468 Albany, GA 31706 (229)436-0524