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IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 9, 2007
No. 06-14897 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00075-CV-WLS-1
ANTOINE MOODY,
Plaintiff-Appellant,
versus
CITY OF ALBANY, GEORGIA, et al.,
Defendants,
JOE MESSER, SCOTT MULLEN,
individually and in their official capacities,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(April 9, 2007)
Before BLACK, MARCUS and HILL, Circuit Judges.
PER CURIAM:
Antoine Moody appeals the grant of summary judgment to defendant
Officers Joe Messer and Scott Mullen of the City of Albany Police Department, in
their individual capacities, on Moody’s claims under 42 U.S.C. § 1983, § 1985 and
§ 1986 for conspiracy to violate his constitutional rights and for malicious
prosecution. The district court granted summary judgment to Messer and Mullen,
holding that there was no evidence in the record from which to conclude that they
joined a conspiracy to maliciously prosecute or deny Moody of any constitutional
rights. For the following reasons, we shall affirm.
I.
The case arises out of an incident in which Moody was arrested for
obstruction of justice for allegedly interfering during the course of the arrest of the
driver of a car in which Moody was a passenger.1 The vehicle was stopped by
Messer and Mullen, officers of the Albany Police Department (the “city officers”),
and, a short while later, two Dougherty County Sheriff’s Deputies (the “county
deputies”) arrived on the scene. Messer asked the county deputies if they had a
machine to use in administering a field sobriety test. The county deputies replied
that they did and got out of their vehicle to administer the test. At some point, the
1
The charges were subsequently dropped.
2
county deputies administered a field sobriety test on the driver, Morrison.
Meanwhile, however, an argument erupted between the occupants in the
vehicle and the county deputies and city officers. Although the exact reason and
nature of the argument is disputed by the parties, Moody admits that he began
yelling at the deputies and officers. Moody claims that he was pushed and shoved
while being pulled out of the car and placed under arrest by the county deputies.2
Moody was charged with obstruction of a police officer because his conduct
allegedly interfered with the county deputies’ attempt to conduct a field sobriety
test on Morrison. In addition, Moody’s conduct prevented the county deputies
from talking to Morrison and hearing his responses.
Moody claims, however, that he was arrested because he refused to promise
not to report the deputies’ excessive use of force on both himself and the other
occupants of the car in return for the dropping of all charges against the car’s
occupants. Moody claims that the county deputies and the city officers entered
into a conspiracy to “cover up, hide, and keep secret the misconduct of the
defendants” during the incident and to maliciously prosecute him for refusing to go
along with the conspiracy.
II.
2
Moody does not allege that he suffered any injury requiring medical attention.
3
First, with respect to Moody’s claim that the defendants conspired to deprive
him of his constitutional rights, we agree with the district court that Moody offers
absolutely no evidence that either city officer entered into any conspiracy or took
any act to deprive him of a constitutional right. At most, Moody offers only vague
speculation as to what the county deputies and the city officers discussed during
the incident. Moody offers not a single shred of evidence of a conspiracy beyond
this speculation. On the contrary, Moody’s sworn deposition testimony was that
he observed only the two county deputies talking to each other immediately prior
to one of them approaching him with the suggestion of trading freedom (dropping
of all charges) for silence about any official misconduct.3 In the complete absence
of evidence of any agreement between the county deputies and the city officers to
deprive him of a constitutional right, Moody’s claim must fail.
Additionally, Moody does not state a claim under Section 1985 because he
does not allege, as it requires, that defendant’s alleged misconduct was
accompanied or motivated by racial animus. See Griffin v. Breckinridge, 403 U.S.
88 (1971). Moody’s claim is merely that the city officers acted out of self-interest
in an attempt to cover up their alleged excessive use of force. Such allegations do
3
The district court correctly held that Moody’s attempt to create an issue of fact here by
the subsequent proffer of a “sham affidavit” directly contradicting this earlier sworn testimony
was to be rejected.
4
not state a claim under Section 1985.4 Nor did Moody allege any facts from which
such racial animus could be inferred.
Moody’s claim for malicious prosecution must fail because he was not
arrested by these defendants. The county deputies were the ones who arrested
Moody, transported him to jail and booked him.5 The record evidence was that
neither Messer nor Mullen ever touched or even spoke to Moody during the entire
incident.6
Finding no merit in any of Moody’s other claims of constitutional violation,
the district court’s grant of summary judgment to defendants is due to be
AFFIRMED.
4
Moody’s Section 1986 claim, failure to prevent a Section 1985 violation, fails in the
absence of a valid Section 1985 claim. See 42 U.S.C. § 1986.
5
These deputies were named defendants but Moody settled with them and they were
dismissed.
6
Additionally, this state law claim may not be pursued in the absence of any evidence, as
here, that the defendant was actually prosecuted. Walker v. Bishop, Georgia Kraft Co., v.
Bishop, 169 Ga. App. 236 (1983).
5