FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APR 9, 2007

THOMAS K. KAHN

CLERK

\ [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-14897

Non-Argument Calendar

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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.

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Appeal from the United States District Court

for the Middle District of Georgia

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(April 9, 2007)

Before BLACK, MARCUS and HILL, Circuit Judges.
The charges were subsequently dropped. 1

2

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. The vehicle was stopped by 1

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
Moody does not allege that he suffered any injury requiring medical attention. 2

3

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.
The district court correctly held that Moody’s attempt to create an issue of fact here by 3

the subsequent proffer of a “sham affidavit” directly contradicting this earlier sworn testimony

was to be rejected.

4

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. In the complete absence 3

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
Moody’s Section 1986 claim, failure to prevent a Section 1985 violation, fails in the 4

absence of a valid Section 1985 claim. See 42 U.S.C. § 1986.

These deputies were named defendants but Moody settled with them and they were

5

dismissed.

Additionally, this state law claim may not be pursued in the absence of any evidence, as 6

here, that the defendant was actually prosecuted. Walker v. Bishop, Georgia Kraft Co., v.

Bishop, 169 Ga. App. 236 (1983).

5

not state a claim under Section 1985. Nor did Moody allege any facts from which 4

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. The record evidence was that 5

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.