Jamie McDaniel v. Robert Smith

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-16083 ELEVENTH CIRCUIT
SEPTEMBER 20, 2010
________________________
JOHN LEY
CLERK
D. C. Docket No. 07-00079-CV-5
JAMIE MCDANIEL,
Plaintiff-Appellee,
versus
ROBERT SMITH,
Defendant-Appellant,
ALAN G. PAULK, JR., et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(September 20, 2010)
Before HULL, MARTIN and FAY, Circuit Judges.
PER CURIAM:
After review and oral argument, and accepting Plaintiff-Appellee’s version
of the facts at this interlocutory stage, we conclude Defendant-Appellant Sheriff
Robert Smith, sued individually, has not shown reversible error in the district
court’s order (dated October 29, 2009) which (1) denied qualified immunity as to
Plaintiff-Appellee’s federal claims brought under 42 U.S.C. §§ 1983 and 1988 in
Counts 4, 5, and 7, and (2) denied official immunity as to Plaintiff-Appellee’s state
law claims in Counts 10, 11, 12, and 14. On appeal, we note Defendant-Appellant
Smith did not present argument as to Counts 17 (attorneys’ fees) or 18 (punitive
damages).
However, we reverse the district court’s denial of qualified immunity to
Defendant-Appellant Smith on the §§ 1983 and 1988 federal claims in Count 1 to
the extent that count alleges a separate substantive due process claim under solely
the Fourteenth Amendment because that count fails to state a separate
constitutional violation.
There is a factual issue about whether Harper was acting on his own or at
Sheriff Smith’s direction and as his agent, which impacts certain counts in the
Amended and Restated Complaint. To the extent an election, if any, is needed
between different counts, we leave that issue to the district court in the first
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instance.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
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