Powell v. Barrett , 246 F. App'x 615 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 23, 2007
No. 05-16734
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 04-01100-CV-RWS-1
C. ALAN POWELL, individually, and on behalf of
all others similarly situated,
TORY DUNLAP, individually, and on behalf of
all other similarly situated, et al.,
Plaintiffs Appellees
Cross-Appellants,
versus
SHERIFF JACQUELINE BARRETT,
Fulton County, State of Georgia,
SHERIFF MYRON FREEMAN,
Fulton County, State of Georgia, et al.,
Defendants-Appellants
Cross-Appellees.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
_________________________
(August 23, 2007)
Before BLACK and HULL, Circuit Judges, and RYSKAMP,* District Judge.
PER CURIAM:
*
Honorable Kenneth L. Ryskamp, United States District Judge for the Southern District of
Florida, sitting by designation.
Plaintiffs, eleven male former detainees at the Fulton County Jail (the Jail),
filed a putative class action under 42 U.S.C. § 1983 against Sheriffs Myron
Freeman and Jacqueline Barrett, the current and former sheriffs of the Jail (the
Sheriffs), Fulton County (the County), the members of the Fulton County Board of
Commissioners (the Board), and the City of Atlanta (the City) (collectively,
Defendants).
Plaintiffs sue Sheriff Freeman in his official capacity for both monetary
damages and injunctive relief and in his individual capacity for monetary
damages. Plaintiffs sue Sheriff Barrett only in her individual capacity for
monetary damages. Plaintiffs also seek both monetary damages and injunctive
relief against the County and the City.
In their Fourth Amended Complaint (the Complaint), Plaintiffs claim their
constitutional rights were violated when they were detained past midnight on their
scheduled release dates, or “overdetained,” pursuant to a policy or practice at the
Jail.1 Defendants filed motions to dismiss the Complaint for failure to state a
claim, arguing, inter alia, Sheriff Freeman was entitled to Eleventh Amendment
1
In their Complaint, Plaintiffs also claim their constitutional rights were violated when
they were subjected at the Jail to “blanket strip searches,” or strip searches without an
individualized finding of reasonable suspicion that each Plaintiff was concealing weapons, drugs,
or other contraband. We discuss Plaintiffs’ § 1983 claims against Defendants based on the
blanket strip searches in a separate, published opinion.
2
immunity, both Sheriffs were entitled to qualified immunity, and the County and
the City lacked the requisite control over the policy at the Jail to be liable as
municipalities under § 1983. In an order dated July 5, 2005 (the Order), the
district court granted in part and denied in part Defendants’ motions to dismiss.2
Specifically, the district court granted Eleventh Amendment immunity to Sheriff
Freeman for Plaintiffs’ overdetention claims against him in his official capacity
seeking monetary damages; however, the district court denied the Sheriffs
qualified immunity for Plaintiffs’ overdetention claims against them in their
individual capacities. The district court also denied the County’s and City’s
motion to dismiss the overdetention claims, finding that Plaintiffs had sufficiently
alleged claims of municipal liability under § 1983 against the County and City.
In this appeal and cross-appeal, the parties challenge the district court’s
order. After reviewing the parties’ briefs and hearing oral argument, we affirm in
part, reverse in part, and remand in part.
2
The district court’s July 5, 2005 order relies, in part, on a previous order dated
January 13, 2005, in which the district court addressed the County’s and City’s motions to
dismiss the First Amended Complaint.
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I. DISCUSSION
A. Suit Against Sheriff Freeman in his Official Capacity for Monetary Damages
We first address whether Sheriff Freeman is entitled to Eleventh
Amendment immunity from suit in his official capacity seeking monetary
damages. Under the Eleventh Amendment, a State is immune from suit in federal
court without its consent. Pennhurst State Sch. & Hosp. v.. Halderman, 465 U.S.
89, 100, 104 S. Ct. 900, 908 (1984). This immunity extends to an “arm of the
State,” which includes agents and instrumentalities of the State. Regents of the
Univ. of Cal. v. Doe, 519 U.S. 425, 429-30, 117 S. Ct. 900, 903-04 (1997).
“Whether a defendant is an ‘arm of the State’ must be assessed in light of the
particular function in which the defendant was engaged.” Manders v. Lee, 338
F.3d 1304, 1308 (11th Cir. 2003) (en banc). We look at four factors to determine
whether an entity is an “arm of the State”: “(1) how state law defines the entity;
(2) what degree of control the State maintains over the entity; (3) where the entity
derives its funds; and (4) who is responsible for judgments against the entity.” Id.
at 1309. In Manders, we examined Georgia law and held that the sheriff of Clinch
County was entitled to Eleventh Amendment immunity as an “arm of the State”
when he established and executed a use-of-force policy at the jail. Id. at 1328.
4
Although the policy in the instant case is different, our analysis in Manders
applies to Sheriff Freeman’s policy for processing the release of detainees. See id.
at 1318-1328. We conclude that Sheriff Freeman, in his official capacity, is an
“arm of the State” entitled to immunity in executing his function of processing the
release of detainees from the Jail. We therefore affirm the district court’s
dismissal of Plaintiffs’ overdetention claims for monetary damages against Sheriff
Freeman in his official capacity.
B. Suit Against Sheriff Freeman in his Official Capacity for Injunctive Relief
The Eleventh Amendment does not prevent Plaintiffs from seeking
prospective, injunctive relief against Sheriff Freeman in his official capacity. See
Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437, 124 S. Ct. 899, 903 (2004).
Defendants maintain, however, that Plaintiffs lack standing to seek injunctive
relief against Sheriff Freeman in his official capacity.3 For purposes of this issue,
we assume Plaintiffs sufficiently alleged a constitutional violation based on the
alleged overdetentions at the Jail. All Plaintiffs, other than Stanley Clemons, had
been released from the Jail before they were added as parties to this suit. We
3
The district court dismissed Plaintiffs’ claims for injunctive relief against the County, but
it did not address Plaintiffs’ claims for injunctive relief against Sheriff Freeman in his official
capacity or against the City. On appeal, Defendants challenge Plaintiffs’ standing to seek
injunctive relief against Sheriff Freeman in his official capacity and against the City. However,
because we dismiss Plaintiffs’ overdetention claims against the County and the City infra, we
need only address Plaintiffs’ standing to seek injunctive relief against Sheriff Freeman in his
official capacity.
5
agree with the district court that the threat they face of future overdetentions is too
speculative or conjectural and not real and immediate. See City of Los Angeles v.
Lyons, 461 U.S. 95, 101-102, 103 S. Ct. 1660, 1665 (1983). Clemons, however,
was still at the Jail at the time he was added as a plaintiff to the suit and therefore
has standing to seek injunctive relief against Sheriff Freeman in his official
capacity.4
Nonetheless, as Defendants point out, Clemons has since been released from
the Jail, which moots his claim for injunctive relief. See Spears v. Thigpen, 846
F.2d 1327, 1328 (11th Cir. 1988) (holding that claims regarding treatment at a
facility at which prisoner was no longer incarcerated were moot); see also Wahl v.
McIver, 773 F.2d 1169, 1173 (11th Cir.1985) (explaining that absent class
certification, an inmate’s claim for injunctive relief under §1983 action is moot
once the inmate has been transferred). Clemons does not meet the two conditions
for the “capable of repetition, yet evading review” exception to apply: (1) the
challenged action must be of too short a duration to be fully litigated prior to its
4
Although Clemons was still at the Jail when he was added as a party, all
Plaintiffs–including Clemons–were released from the Jail before Sheriff Freeman took office.
The suit against Sheriff Freeman in his official capacity is tantamount to a suit against the
governmental entity involved, here the Sheriff's Office. See Jones v. Cannon, 174 F.3d 1271,
1293 n.15 (11th Cir. 1999). Thus, Plaintiffs’ release from the Jail before Sheriff Freeman took
office is relevant only to their suit against Sheriff Freeman in his individual capacity, as
discussed infra in Section C.
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cessation, and (2) a reasonable expectation must exist that the same complaining
party will be subject to the same action again. Weinstein v. Bradford, 423 U.S.
147, 149, 96 S. Ct. 347, 348 (1975). While the first condition may be satisfied, the
second is not because Clemons has not demonstrated a reasonable expectation that
he will again be arrested, committed to the Jail, and unconstitutionally detained.
Therefore, we conclude Plaintiffs’ claims for injunctive relief against Sheriff
Freeman in his official capacity should be dismissed, and we remand to the district
court to dismiss Plaintiffs’ overdetention claims for injunctive relief against
Sheriff Freeman in his official capacity.
C. Suit Against the Sheriffs in their Individual Capacities for Monetary Damages
Qualified immunity offers complete protection for government officials
sued in their individual capacities if their conduct does not violate clearly
established statutory or constitutional rights. Vinyard v. Wilson, 311 F.3d 1340,
1346 (11th Cir. 2002). Defendants challenge the district court’s order denying
Sheriffs Freeman and Barrett qualified immunity from Plaintiffs’ claims against
them for monetary damages in their individual capacities. We first note that,
based on the allegations in the Complaint, all Plaintiffs were released from the Jail
before Sheriff Freeman took office. Because Sheriff Freeman was not yet a sheriff
at the Jail at the time the alleged overdetentions occurred, he cannot be responsible
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for the alleged overdetentions in his individual capacity. We therefore remand to
the district court to dismiss Plaintiffs’ overdetention claims against Sheriff
Freeman for monetary damages in his individual capacity.
With respect to Sheriff Barrett, Defendants have not adequately preserved
for appeal the district court’s denial of qualified immunity from Plaintiffs’
overdetention claims against her in her individual capacity. Defendants failed to
properly raise this as an issue in their consolidated, initial brief, making only a
passing reference to it in a footnote. Although Defendants discuss the issue in
greater detail in their consolidated reply brief, the single footnote in the initial
brief did not sufficiently preserve the issue. A party may not argue an issue in its
reply brief that was not preserved in its initial brief. See Tallahassee Mem’l Reg’l
Med. Ctr. v. Bowen, 815 F.2d 1435, 1446 n.16 (11th Cir. 1987) (stating that single
footnote in initial brief did not sufficiently preserve issue that was argued in reply
brief); see also United States v. Jernigan, 341 F.3d 1273, 1284 n.8 (11th Cir.
2003) (holding issue abandoned where, although the defendant made passing
references to issue in brief, the references were undertaken as background to
claims that he expressly advanced). Our determination that Defendants failed to
adequately raise this issue on appeal now is without prejudice to raise the issue
before us at a later stage.
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D. Municipal Liability of the County and the City under § 1983
To impose § 1983 liability on a municipality, a plaintiff must show: (1) that
his constitutional rights were violated; (2) that the municipality had a custom or
policy that constituted deliberate indifference to that constitutional right; and (3)
that the policy or custom caused the violation, or was the “moving force” behind
the violation. McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004); see also
City of Canton v. Harris, 489 U.S. 378, 388-89 (1989). We need not address
whether Plaintiffs’ allegations establish constitutional violations based on the
overdetentions at the Jail because, even if they do, Plaintiffs have failed to
otherwise establish claims of municipal liability against the County and City for
any constitutional injuries based on those overdetentions.5
The County and City cannot be held liable under § 1983 based on their
alleged “control” of the Sheriffs’ overdetention policies at the Jail. With respect
to the City, the district court correctly noted that Plaintiffs do not advance any
allegations that the City controls the overdetention policies at the Jail. Although
5
We note that although Defendants adequately raise the issue of municipal liability on
appeal, they did not fully brief the first prong of the municipal liability analysis. Defendants did
not specifically address whether the alleged overdetentions violated Plaintiffs’ constitutional
rights, but instead assumed constitutional violations and addressed only whether those rights
were clearly established. Without having full briefing on the first prong, and because we
conclude infra that Plaintiffs fail to satisfy the causation prong of the municipal liability analysis,
we decline to address the constitutional issue.
9
Plaintiffs do allege that the County controls such polices, our precedent makes
clear the Sheriffs do not act as policymakers for the County when performing their
function of processing the release of inmates. See Grech v. Clayton County, 335
F.3d 1326, 1332 (11th Cir. 2003) (en banc); Manders, 338 F.3d at 1328. Thus, the
overdetention polices at the Jail cannot be attributed to the County or the City.
Plaintiffs identify another set of “policies” which they claim the City and
County do control, namely the County’s and the City’s policies of committing
arrestees to the Jail through their respective police departments. Nonetheless,
even if such policies evidenced a “deliberate indifference” to Plaintiffs’
constitutional rights, Plaintiffs have not alleged the requisite causation between
such policies and the alleged constitutional violations that resulted from the
Sheriffs’ conduct in managing the release process at the Jail, over which the
County and City have no control. Based on the conclusory allegations in the
Complaint, we cannot conclude that placement of arrestees at the Jail was the
“moving force” that animated the behavior of the Sheriffs resulting in the
constitutional injuries. We reverse the district court’s denial of the County’s and
City’s motions to dismiss the overdetention claims.
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II. CONCLUSION
Accordingly, we affirm the district court’s dismissal of the overdetention
claims for monetary damages against Sheriff Freeman in his official capacity; we
remand for the district court to dismiss Plaintiffs’ overdetention claims for
injunctive relief against Sheriff Freeman in his official capacity; we remand for the
district court to dismiss Plaintiffs’ overdetention claims for monetary damages
against Sheriff Freeman in his individual capacity; and we reverse the denial of
the County’s and the City’s motions to dismiss Plaintiffs’ overdetention claims
against them.
We do not address Plaintiffs’ overdetention claims for monetary damages
against Sheriff Barrett in her individual capacity. Thus, only Plaintiffs’
overdetention claims for monetary damages against Sheriff Barrett in her
individual capacity will remain after remand consistent with our instructions.
Nothing herein rules on the merits of those claims or on whether Plaintiffs’
allegations state a constitutional violation.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED IN
PART.
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