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Respondeat Superior Does Not Waive Sovereign Immunity

December 6, 2019

 

            In Conway v. Jones, __ S.E. 2d __, 2019 WL5417726 (2019) the Georgia Court of Appeals reversed the trial court’s denial of a sheriff’s motion to dismiss.  Plaintiff Janise Latrell Jones (“Jones”) filed suit against Sheriff R.L. “Butch” Conway (“Conway”) in his official capacity after a former sheriff’s deputy allegedly sexually assaulted Jones.  Jones alleged Conway was negligent through respondeat superior and by 1) allowing male deputies to transport female inmates, 2) failing to discover previous sexual abuse by the deputy, and 3) engaging in a pattern of hiring employees who commit sexual assault against inmates.  Conway filed a motion to dismiss in the trial court asserting sovereign immunity under state law and a failure to plead a custom or policy under federal law.  The trial court denied Conway’s motion and Conway obtained a certificate for permission to appeal.

 

            The Georgia Court of Appeals reversed the trial court noting that the burden to show a waiver of sovereign immunity was on Jones and Jones failed to meet her burden.  Jones argued she had alleged a pattern of conduct by other deputy sheriffs, but failed to cite to any case law or statutes which established a waiver of sovereign immunity.  With regard to Jones’s federal claim, the court determined Jones failed to plead any facts showing an official custom or policy by Conway.  The Georgia Court of Appeals reversed the trial court’s denial of Conway’s motion to dismiss.

 

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