Rowe v. Schreiber , 139 F.3d 1381 ( 1998 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 97-4920
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D. C. Docket No. 96-6086-CV-WJZ
ROBERT R. ROWE,
Plaintiff-Appellant,
versus
ALAN H. SCHREIBER,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(April 29, 1998)
Before EDMONDSON and BIRCH, Circuit Judges, and FAY, Senior Circuit Judge.
EDMONDSON, Circuit Judge:
Plaintiff Robert Rowe appeals the
district court’s grant of summary
judgment for Defendant Alan Schreiber in
a section 1983 case based mainly on the
Sixth Amendment and brought against
1
Schreiber in his individual capacity. The
1
Plaintiff states in his brief that Schreiber denied indigent
criminal defendants rights protected by “the Sixth, Eighth and
Fourteenth Amendments.” But Plaintiff’s discussion focuses
on the Sixth Amendment right to effective assistance of
counsel. No further mention is made of the Eighth Amendment;
and only Plaintiff’s Brady rights are discussed in relation to
“due process.” Because of the absence of argument, the
issues of Eighth Amendment and Fourteenth Amendment
violations (other than Brady) have been abandoned and will not
be considered in this appeal. See Marek v. Singletary, 62 F.3d
1295, 1298 n.2 (11th Cir. 1995) (“Issues not clearly raised in the
briefs are considered abandoned.”) (citation omitted);
Continental Technical Servs., Inc. v. Rockwell Int’l Corp., 927
2
district court granted summary judgment
after concluding that Defendant, as public
defender, was entitled to absolute
immunity. Because we conclude that
Defendant was undoubtedly entitled to
qualified immunity (which Defendant also
asserted in the district court), we need not
F.2d 1198, 1199 (11th Cir. 1991) (“An argument not made is
waived. . . .”); Harris v. Plastics Mfg. Co., 617 F.2d 438, 440 (5th
Cir. 1980) (Although posed as a question on appeal, appellants
“do not discuss the issue in their argument. Any contention
that the trial court erred [on that issue] is therefore
abandoned.”); see also Fed.R.App.P. 28(a)(5) (“argument shall
contain discussion of issues presented”).
3
decide whether absolute immunity was
2
appropriate. We affirm.
Background
Plaintiff was indicted in Broward
County, Florida, on four counts of sexual
battery. An assistant public defender (“the
APD”), who is no party to this case,
2
We may affirm a decision on any
adequate grounds, including grounds other
than the grounds upon which the district
court actually relied. See Parks v. City of
Warner Robins, 43 F.3d 609, 613 (11th Cir. 1995).
4
represented Plaintiff during the criminal
trial. Plaintiff was convicted and
sentenced to life imprisonment. A
motion to vacate the conviction was filed
by Plaintiff. A Florida court granted the
motion based on the conclusion that
Plaintiff received ineffective assistance
of counsel. A new trial was ordered, but the
State of Florida nolle prosequi the charges.
Plaintiff then filed a section 1983 claim
against the Public Defender for Broward
5
County, Alan Schreiber, in his individual
3
capacity. Never does the complaint allege
that Schreiber acted as Plaintiff’s defense
counsel. Instead, the complaint alleges
that Defendant -- as an administrator --
created systemic deficiencies in the public
defender system generally by denying
investigative resources and expert
witness resources to assistant public
3
Plaintiff also included a state law claim
in his Second Amended Complaint. That
claim was dismissed by the district court
and is not an issue on appeal.
6
defenders, by placing pressure on the
defenders to “hurry their clients’ cases to
trial,” and by permitting assistant public
defenders to assume overwhelming
caseloads. No allegation has been made
that Defendant made decisions specifically
about the criminal defense of Plaintiff;
nor has an allegation been made that
specific services were requested of
Defendant by Plaintiff.
7
Plaintiff points only to errors made
by the APD who represented him. Plaintiff
claims, among other things, that the APD
did not properly obtain Brady
information from the State; that the APD
repeatedly told Plaintiff that the APD did
not have enough time to prepare
Plaintiff’s defense; that the APD failed to
investigate adequately Plaintiff’s defense;
and that the APD told Plaintiff that the
Public Defender’s Office was cutting money
8
allocated for case investigation. These
deficiencies, Plaintiff claims, were caused
by the general administrative decisions of
Defendant (for example, resource
management decisions, case load
management decisions, and hiring and
firing decisions). Again, Plaintiff does not
claim that Schreiber was, in any way,
Plaintiff’s defense lawyer.
Defendant filed a motion for summary
judgment based on three alternative
9
defenses: (1) as public defender, Defendant
was not acting under color of state law as
required for a claim under section 1983; (2)
as public defender, Defendant was entitled
to absolute immunity from section 1983
liability; or (3) Defendant was entitled to
qualified immunity. The district court
granted Defendant’s motion for summary
judgment, concluding that Defendant -- as
public defender -- was entitled to absolute
immunity.
10
Discussion
We review a district court’s grant of
summary judgment de novo, with all facts
viewed in the light most favorable to the
nonmoving party. See Hale v. Tallapoosa
County, 50 F.3d 1579, 1581 (11th Cir. 1995).
Because we conclude that Defendant is
entitled to qualified immunity, we have
assumed, arguendo, that Defendant -- when
11
acting as a public administrator -- was
acting under color of state law and was
not entitled to absolute immunity.
“Qualified immunity protects
government officials performing
discretionary functions from civil trials
(and other burdens of litigation, including
discovery) and from liability if their
conduct violates no ‘clearly established
statutory or constitutional rights of which
a reasonable person would have known.’”
12
Lassiter v. Alabama A&M Univ., Bd. of
Trustees, 28 F.3d 1146, 1149 (11th Cir. 1994) (en
banc) (quoting Harlow v. Fitzgerald, 102 S.Ct.
2727, 2738 (1982)). Thus, Plaintiff must
point to a preexisting, clearly established
right that was violated by Defendant. See
Lassiter, 28 F.3d at 1149; see also Mitchell v.
Forsyth, 105 S.Ct. 2806, 2816 (1985).
Plaintiff argues that the well-established
Sixth Amendment right to effective
assistance of counsel is the clearly
13
established right violated by Defendant.
But, “courts must not permit plaintiffs to
discharge their burden by referring to
general rules and to the violation of
abstract ‘rights.’” Lassiter, 28 F.3d at 1150
(citing Anderson v. Creighton, 107 S.Ct.
3034, 3038-39 (1987)) (footnote omitted). The
right to effective assistance of counsel,
although a generally established right of
criminal defendants, is not sufficiently
14
specific to overcome Defendant’s right to
qualified immunity from this suit.
“For the law to be clearly established to
the point that qualified immunity does not
apply, the law must have earlier been
developed in such a concrete and factually
defined context to make it obvious to all
reasonable government actors, in the
defendant’s place, that ‘what he is doing’
violates federal law.” Lassiter, 28 F.3d at
1149 (quoting Anderson, 107 S.Ct. at 3039).
15
“Public officials are not obligated to be
creative or imaginative in drawing
analogies from previously decided cases.”
Lassiter, 28 F.3d at 1150 (quoting Adams v.
St. Lucie County Sheriff’s Dep’t, 962 F.2d
th
1563, 1573, 1575 (11 Cir. 1992) (Edmondson,
J., dissenting), approved en banc, 998 F.2d
th
923 (11 Cir. 1993)). “If case law, in factual
terms, has not staked out a bright line,
qualified immunity almost always protects
16
the defendant.” Post v. City of Fort
Lauderdale, 7 F.3d 1552, 1557 (11th Cir. 1993).
In this case, for qualified immunity
not to apply, the right which must be clearly
established is some right to have the
resources of the public defender’s office
administratively allocated in a specific
manner or the right to have certain
4
administrative decisions made. Plaintiff
4
Plaintiff argues that the right to have
his case adequately investigated and
adequately prepared is also clearly
established. The right to effective
assistance of counsel may embody the
17
rights to adequate preparation and
investigation, see Weidner v. Wainwright,
708 F.2d 614, 616 (11th Cir. 1983), but the
lawyer decisions of what to investigate
and what to prepare in Plaintiff’s
criminal case were the APD’s, not
Defendant’s. The conduct complained of by
Plaintiff about Defendant is the public
administrative act of allocating the
available resources for investigation and
preparation generally. Included in
Plaintiff’s argument that the APD did not
adequately investigate is Plaintiff’s claim
that his Brady rights were not adequately
protected; see generally Brady v. Maryland,
373 U.S. 83 (1963). But Plaintiff has failed to
point to conduct of Defendant (as a public
administrator) that caused a violation of
Plaintiff’s Brady rights. More important,
Plaintiff has pointed to no law that clearly
established that a person administering a
public defender program is the guarantor,
18
puts forward no existing law to show the
clearly established nature of this “right.”
That general administrative decisions of
the kind at issue in this case violated
Plaintiff’s Sixth Amendment right to
effective assistance of counsel, when the
decisions were made by someone not
acting as Plaintiff’s lawyer, was not (and
5
is not) clearly established.
through his administrative decisions, of all
indigent defendants’ Brady rights.
5
We accept that indigent defendants must be provided
particular services, such as expert witnesses, by the State
under certain circumstances. But to be entitled to those
19
Plaintiff has, in fact, presented
nothing to show that every reasonable
public defender in Defendant’s position
would have known that the conduct --
making decisions about how to allocate
services, a defendant is required to request the State for the
services. See Moore v. Kemp, 809 F.2d 702, 709 (11th Cir. 1987)
(en banc). No allegation has been made that Plaintiff asked
Defendant to provide a service, which service was denied.
“Supreme Court precedent establishes the principle that the
due process clause of the fourteenth amendment requires that
the state, upon request, provide indigent defendants with the
‘basic tools of an adequate defense . . . when those tools are
available for a price to other prisoners.’” Moore, 809 F.2d at 709(emphasis added) (quoting Britt v. North Carolina, 92 S.Ct. 431,
433 (1971)); see also Ake v. Oklahoma, 105 S.Ct. 1087 (1985).
These cases -- involving requests made to courts -- do not
clearly establish a right to the kind of administrative decisions
involved in this case, especially in the absence of a request that
the public administrator provide a particular service to a
particular defendant. Plaintiff’s only alleged request for an
expert witness was to his APD, not to Defendant.
20
limited resources within his office and how
otherwise to manage the public defender’s
office -- violated Plaintiff’s constitutional
rights. The “right” allegedly violated is the
Sixth Amendment right to effective
assistance of counsel; but no precedents
have been cited that involve the
administrative duties of a public defender,
as opposed to the traditional legal
functions performed by the criminal
defendant’s specific attorney: that is,
21
6
lawyer-as-lawyer decisions. The cases cited
by Plaintiff are not materially similar to
the case before us and do not clearly
establish a right to certain funding for
(or certain administrative decisions
6
For example, Plaintiff cites us to cases
such as Strickland v. Washington, 104 S.Ct.
2052 (1984), and Weidner v. Wainwright,
708 F.2d 614 (11th Cir. 1983). These cases are
decisions about whether a criminal
defendant received effective assistance of
counsel: again lawyer acting as lawyer.
The cases in no way address the
constitutional responsibilities of a public
defender acting as a public administrator
and making administrative decisions for
the public defender’s office.
22
affecting) investigation, expert
witnesses, and the like. See Lassiter, 28
F.3d at 1150-51; Edwards v. Gilbert, 867 F.2d
1271, 1277 (11th Cir. 1989).
Qualified immunity is the rule, not the
exception. Plaintiff has failed to convince
us that this case represents the
exceptional case where qualified immunity
should not apply. See, e.g., Harlow, 102 S.Ct.
at 2738; Lassiter, 28 F.3d at 1149; Barts v.
Joyner, 865 F.2d 1187, 1190 (11th Cir. 1989).
23
AFFIRMED.
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