Oqueshia Andrews v. Carmel Biggers, Jr. ( 2021 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-11469
________________________
D.C. Docket No. 1:18-cv-05963-JPB
OQUESHIA ANDREWS,
Plaintiff-Appellant,
versus
CARMEL BIGGERS, JR.,
in his individual and official capacity,
TIM POUNDS,
in his official capacity as Douglas County Sheriff,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(May 7, 2021)
Before WILSON, ROSENBAUM, and ED CARNES, Circuit Judges.
ED CARNES, Circuit Judge:
Oqueshia Andrews alleges that Douglas County Sheriff’s Deputy Carmel
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Biggers fondled her, kissed her, and watched her shower, all without her consent,
when she was an inmate in the county jail. According to Andrews, the reason
Biggers, who is male, could do those things is that Douglas County Sheriff Tim
Pounds operates the jail with a policy that allows “cross-gender supervision of
inmates without reasonable safeguards in place.” Andrews sued Pounds in his
official capacity under 42 U.S.C. § 1983, and the district court granted Pounds’
motion to dismiss, concluding that under Purcell ex rel. Estate of Morgan v.
Toombs County, 400 F.3d 1313 (11th Cir. 2005), Pounds was due Eleventh
Amendment immunity because he acts as an arm of the State “when promulgating
policies and procedures governing conditions of confinement” at the county jail. Id.
at 1325.
Andrews concedes, as she must, that Purcell “control[s] the outcome of this
case because both cases relate to the function of jail operations” and that the district
court was “bound by precedent” to follow it. Since Georgia law as it relates to
sheriffs’ duties and control has not meaningfully changed since we issued Purcell,
we agree. But Andrews wants Purcell overruled and our Court “to revisit the
factors discussed” in Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003) (en banc), the
decision on which Purcell relies and which she recognizes “runs contrary to her
position.” She believes Manders “misapplies” to Georgia sheriffs the Supreme
Court’s analysis in McMillian v. Monroe County, 520 U.S. 781 (1997). Of course,
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we as a panel cannot overrule Manders or Purcell. “Under our prior precedent rule,
a panel cannot overrule a prior one’s holding even [if] convinced it is wrong.”
United States v. Steele, 147 F.3d 1316, 1317–18 (11th Cir. 1998) (en banc). We
have “categorically reject[ed] any exception” to that rule “based upon a perceived
defect in the prior panel’s reasoning or analysis as it relates to the law in existence
at that time.” Smith v. GTE Corp., 236 F.3d 1292, 1303 (11th Cir. 2001). Those
principles apply as strongly, if not more so, where the earlier precedent is an en
banc decision.
The district court correctly held that Pounds was due Eleventh Amendment
immunity under Purcell. See 400 F.3d at 1325.
AFFIRMED.
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WILSON, Circuit Judge, concurring:
I concur in today’s decision because Purcell ex rel. Estate of Morgan v.
Toombs County, 400 F.3d 1313 (11th Cir. 2005), is binding precedent that controls
the outcome of this case. I write separately, however, to express my view that
Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003) (en banc)—which Purcell relies
on—was incorrectly decided. Judge Anderson and Judge Barkett wrote compelling
dissents in Manders, both of which I joined. I continue to agree with their criticism
of the Manders majority. Nonetheless, under our prior-precedent rule, we are
bound to follow Manders and its progeny unless it “is overruled en banc or by the
Supreme Court.” United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir. 1993).
For this reason alone, I concur.
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ROSENBAUM, Circuit Judge, concurring:
I concur in the panel’s decision to affirm the district court’s decision to dismiss
Andrews’s claim against Sheriff Pounds because he is entitled to sovereign immunity
under binding case law. See Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003) (en
banc); Purcell ex rel. Estate of Morgan v. Toombs Cnty., 400 F.3d 1313 (11th Cir.
2005). I write separately to explain why this Court should reevaluate this case law
en banc, and in particular, our decision in Purcell.
Under the concept of Eleventh Amendment state sovereign immunity, our
decisions in Manders and Purcell effectively insulate local governments in Georgia
from liability in federal court when county sheriffs violate citizens’ constitutional
rights. For example, here, Douglas County is protected from liability even though,
assuming the truth of Andrews’s allegations, a Douglas County deputy sheriff
engaged in a pattern and practice of sexually harassing and assaulting women
incarcerated in Douglas County Jail. These are horrific and disturbing allegations,
but under our precedent, the victims have no recourse against what is, in reality, the
local government entity overseeing the county jail.
Our case law rests on misinterpretations of Georgia law and the Supreme
Court’s state sovereign-immunity precedent. My disagreement with this line of cases
is not unusual; the sheer number and length of the dissents in these cases attest to that
fact. See Manders, 338 F.3d at 1329 (Anderson, J., joined by Tjoflat, Birch, and
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Wilson, JJ., dissenting); id. at 1332 (Barkett, J., joined by Tjoflat, Birch and Wilson,
JJ., and joined in part by Anderson, J., dissenting); Lake v. Skelton, 840 F.3d 1334,
1345 (11th Cir. 2016) (Parker, J., dissenting) (“Lake I”); Lake v. Skelton, 871 F.3d
1340, 1344 (11th Cir. 2017) (Martin, J., dissenting from denial of rehearing en banc)
(“Lake II”). Today, I join this chorus of voices raising concerns about our sovereign-
immunity doctrine with respect to Georgia sheriffs.
In this concurrence, I seek to reiterate some of my colleagues’ fundamental
concerns with our reasoning in Manders and Purcell. I also explain why our decision
in Purcell conflicts with Manders and should be abrogated regardless of whether we
reconsider the ultimate holding in Manders.
I.
To determine whether an official or entity is an “arm of the State,” we look to
four factors: “(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.” Manders, 338 F.3d at 1309. In
Manders, we found that, on balance, the factors weighed in favor of granting
immunity to sheriffs when they set their “use-of-force policy at the [county] jail[.]”
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Id. at 1328. But a clear reading of Georgia law demonstrates that all four factors
weigh against a finding of immunity.1
A.
First, I consider how state law defines the entity. The Georgia Constitution
could not be any more explicit: sheriffs are “county officers” who are elected by the
voters of their respective counties. Ga. Const. art. IX, § 1, ¶ 3. Under the Georgia
Constitution, sheriffs are considered part of “Counties and Municipal Corporations,”
id. art. IX, not the state’s executive branch, id. art. V (addressing the “Executive
Branch”). And as for the particular function at issue in this case—the cross-gender
supervision of detainees at county jails—Georgia statutory law explicitly defines
sheriffs as “jailers of the counties.” O.C.G.A. § 42-4-1(a).
Georgia courts also have consistently held that “a lawsuit against a sheriff in
his official capacity is considered a suit against the county[.]” Davis v. Morrison,
810 S.E.2d 649, 651 (Ga. Ct. App. 2018) (citation and internal quotation marks
omitted); see also Gilbert v. Richardson, 452 S.E.2d 476, 478 n.4 (Ga. 1994). And
since our decision in Manders, Georgia courts have reiterated that “[s]heriffs clearly
perform governmental services on a local level[.]” See Channell v. Houston, 699
S.E.2d 308, 310 (Ga. 2010) (emphasis added).
1
My analysis will focus on our reasoning in Manders since Purcell did not discuss the four
factors and simply relied on our holding in Manders. See Purcell, 400 F.3d at 1325.
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Normally, under our precedent, when a state’s constitution and case law define
an official as a county officer, that “weighs against arm of the state status.” Abusaid
v. Hillsborough Cnty. Bd. of Cnty. Comm’rs, 405 F.3d 1298, 1305-6 (11th Cir. 2005);
cf. McMillian v. Monroe Cnty., 520 U.S. 781, 787 (1997) (relying on the “the
constitutional provisions concerning sheriffs, the historical development of those
provisions, and the interpretation given them by the Alabama Supreme Court” to
determine whether Alabama sheriffs represent the State for purposes of liability under
42 U.S.C. § 1983).
But in Manders, we did not follow that practice. Instead, we dismissed the
language in Georgia’s constitution as mere “nomenclature” that “reflect[ed] a
geographic label defining the territory in which a sheriff is elected and mainly
operates.” Manders, 338 F.3d at 1312. Declining to take the Georgia Constitution
at its word, we found that sheriffs are “arms of the state” because they “perform
specific statutory duties, directly assigned by the State, . . . in corrections.” Id. at
1319. We concluded that counties lack control over the sheriff’s office under the
Georgia Constitution to the point that the sheriff’s office is “a separate and
independent office” from the county and its governing body. Id.Our reading of Georgia law and this Court’s sovereign-immunity case law was
flawed. As an initial matter, Manders conflates the first two factors by using state
control (and the lack of county control) over sheriffs to define sheriffs and the
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function at issue. But the “two factors should not be collapsed.” Lake I, 840 F.3d at
1347-48 (Parker, J., dissenting).
Second, Manders focuses far too much on the county’s lack of control over
sheriffs. Manders, 338 F.3d at 1310; id. (noting that Georgia Constitution gives
counties no “legislative power or authority over sheriffs and expressly prevents
counties from controlling or affecting the sheriff’s office or the personnel thereof.”);
id. (stressing that sheriffs are “not county employees”) (citing Bd. of Comm’rs of
Randolph Cnty. v. Wilson, 396 S.E.2d 903 (Ga. 1990)); id. at 1319 (explaining that
“the sheriff’s office is a separate and independent office from both [the] County and
its governing body”).
By training its analysis on the county’s control, Manders “asks the wrong
question.” Id. at 1331 (Anderson, J., dissenting). The purpose of the Eleventh
Amendment “arm of the state” inquiry is not to assess “who has the most control, the
state or the county.” Id. Rather, the inquiry seeks to evaluate whether the State has
enough control over an official for the official to be considered an “arm of the state.”
Id.; see also Lake II, 871 F.3d at 1354 (“The Eleventh Amendment inquiry is about
whether the state controls the sheriff and is financially responsible for his actions”)
(Martin, J., dissenting from denial of rehearing en banc).
Manders is surely correct that sheriffs are not controlled by the county
commission and are not “employee[s] of the county commission.” Wilson, 396
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S.E.2d at 903. But that does not mean the State defines sheriffs as State entities. See
Manders, 338 F.3d at 1331-32 (Anderson, J., dissenting).
Manders’s emphasis on the sheriff’s independence from county governing
bodies also misunderstands the nature of county government in Georgia. As Judge
Barkett explained, “[T]he county commission is not the only institution that acts for
the county.” Id. at 1343 n.15 (Barkett, J., dissenting). Georgia has structured its
county governments in a way that spreads power between co-equal, but separate,
offices “akin to the federal government’s separation of powers.” Id. “Thus, the
sheriff's independence from the county commission should be interpreted not as
independence from the county, but rather as independent authority to act for the
county with respect to the functions entrusted [to] his office.” Id. Indeed, Georgia
courts have since explained that the sheriff “is an elected constitutional county officer
and not a county employee.” Freeman v. Brandau, 664 S.E.2d 299, 301 (Ga. Ct.
App. 2008) (emphasis added).
Third, Manders places too much emphasis on the fact that the sheriff’s duties
and powers are defined by state law. In fact, the State Legislature’s power to define
the duties of the sheriff’s office “indicates nothing more than its role as the seat of
legislative power in Georgia.” Manders, 338 F.3d at 1338 (Barkett, J., dissenting).
All local government entities, including county commissioners, are subject to the
“state’s sovereign prerogative to structure local government.” Id. at 1338; see also
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Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 47 (1994) (explaining that
“political subdivisions exist solely at the whim and behest of their state”) (cleaned
up). As a result, the State Legislature’s authority to define the duties and powers of
the sheriff’s office in Georgia is not a particularly strong indicator of state control.
At bottom, the plain language of Georgia constitutional and case law makes
clear that sheriffs are county officials. Under a proper reading of Georgia law, then,
this factor weighs against immunity.
B.
The second factor requires us to consider what degree of control the State
maintains over the entity or official. In Manders, we concluded that the State
maintains control over sheriffs through its ability to “mandate[] and control[] sheriffs’
specific duties,” and its responsibility to train and discipline sheriffs. Manders, 338
F.3d at 1320. But this conclusion suffers from many of the same flaws as the analysis
under the first factor.
For example, Manders again reads too much into the state’s residual legislative
control over sheriffs. Indeed, “ultimate control of every state-created entity resides
with the State[.]” Hess, 514 U.S. at 47. Georgia is no different. No doubt, the State
Legislature has the authority to define the powers and duties of sheriffs in Georgia.
Ga. Const. art. IX, § 1, ¶ 3(a)-(b). But that does not distinguish sheriffs from any
other local government entity: the constitution also gives the State Legislature the
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authority to define the powers and duties of other local officials—including county
commissioners. Manders, 338 F.3d at 1338 (Barkett, J., dissenting) (citing Ga. Const.
art. IX, § 2, ¶¶ 1(a), (c)(1)).
The State also ultimately maintains training and disciplinary control over other
local officials. For example, the State Legislature has used this power to require
county commissioners, like sheriffs, to meet certain training requirements. Id. at
1343 (citing O.C.G.A. § 36-20-4 (requiring county commissioners to complete 18
hours of training on “matters pertaining to the administration and operations of
county governments”)).
Manders also (and again) harps on the lack of control counties maintain over
sheriffs as evidence of state control. Manders, 338 F.3d at 1322. But as I explained
above, county control, or the lack of it, does not show state control. And Georgia law
specifically designed the sheriff’s office to maintain some independence from county
governing bodies.
More importantly, Manders ignores the portions of Georgia law that do give
counties control over county sheriffs and their operation of county jails. For an
inmate in a county jail, counties have a duty under Georgia law to “maintain the
inmate, furnishing him food, clothing, and any needed medical and hospital
attention.” O.C.G.A. § 42-5-2(a). Counties also must defend any habeas corpus or
other proceeding initiated by an inmate of a county jail and must “bear all expenses
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relative to any escape and recapture” of inmates. Id. Plus, the county commission is
in charge of “directing and controlling all of the property of the county”—including
county jails. Id. § 36-5-22.1(a)(1).
Georgia law likewise clearly differentiates between responsibility for control
over state correctional facilities on the one hand and county jails on the other. State
correctional facilities are under the control of the Department of Corrections, a state
government entity. Id. §§ 42-2-5, 42-5-53(b). But the Department has “no authority,
jurisdiction, or responsibility” over those offenders who are sentenced to
confinement in a county jail. Id. § 42-5-51(a). Instead, the “county wherein the
sentence is imposed shall have the sole responsibility of executing the sentence and
of providing for the care, maintenance, and upkeep of the inmate while serving such
sentence[.]” Id. (emphasis added).
Not only that, but state law grants counties the power to conduct grand-jury
investigations into the conditions of their own county jails. O.C.G.A. § 15-12-
71(b)(1), (c). Manders attempts to distinguish this provision by observing that grand
juries “perform discrete functions in the State’s justice system,” including
investigating all county buildings and governing bodies. Manders, 338 F.3d at 1322
n.40. But even so, state law requires grand juries conducting inspections under
O.C.G.A. § 15-12-71 to make recommendations and presentments to county
governing authorities on the sanitary conditions of the jails and “the treatment of the
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inmates as the facts may justify.” See O.C.G.A. § 15-12-78; see also Manders, 338
F.3d at 1341 n.13 (Barkett, J., dissenting). It is telling that this statute requires a
grand jury to inform county commissions about investigations of county jails.
A balanced reading of Georgia law reveals that counties retain significant
control over county sheriffs. By contrast, the State merely has the residual power it
retains over every local governmental entity. For these reasons, Manders erred in
concluding that the control factor favors a finding of immunity.
C.
The third factor requires us to account for where the entity or official derives
funds. No one disputes that Georgia law requires counties to fund county jails. See
O.C.G.A. §§ 36-9-5(a), 42-5-2(a); see also Manders, 338 F.3d at 1323; Lake I, 840
F.3d at 1343-44. The county commission has “the power and the duty to issue a
budget” for the sheriff. Chaffin v. Calhoun, 415 S.E.2d 906, 907 (Ga. 1992). This
includes the authority to “amend or change estimates of required expenditures”
presented by the sheriff. Bd. of Comm’rs of Dougherty Cnty. v. Saba, 598 S.E.2d
437, 439 (Ga. 2004).
Despite the commission’s authority over the sheriff’s budget, Manders
concluded that the county’s “financial control” was “attenuated” because the State
requires the county to fund the sheriff’s budget, and the county cannot dictate how
the sheriff spends it. 338 F.3d at 1323. True, the county commission cannot “dictate
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to the sheriff how [his] budget will be spent in the exercise of his duties.” Chaffin,
415 S.E.2d at 907. Nor can the commission remove “all funds” from the sheriff’s
budget or “divest the sheriff of his law enforcement power and duty.” Id. at 908.
But the county commission still enjoys the “authority to make very substantial
cuts in sheriffs’ funding.” Manders, 338 F.3d at 1345 (Barkett, J., dissenting)
(collecting cases). And a county commission’s changes to the sheriff’s budget may
be reviewed by courts for abuse of discretion only. Saba, 598 S.E.2d at 439. To
survive judicial review, the budget need be only “reasonable under all the
circumstances and . . . provide reasonably sufficient funds to allow the sheriff to
discharge his legal duties.” Chaffin, 415 S.E.2d at 908. Under this lenient standard
of review, Georgia courts have upheld significant budget cuts—even cuts that force
sheriffs to lay off staff and deputies. See, e.g., id. at 908. In short, a county
commission can “act autonomously in funding the sheriff[] so long as [its]
appropriations preserve the sheriff’s capacity to execute the basic functions of
office.” Manders, 338 F.3d at 1345 (Barkett, J., dissenting).
But even if we assume that the Manders reading of Georgia law—that counties
lack “financial control” over sheriffs—is correct, that conclusion still fails to prove
that sheriffs are “arms of the state.” For one, Manders’s concern with “financial
control” inappropriately collapses the control factor into the funding part of the
analysis. The funding factor is about determining where the official “derives its
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funds,” Manders, 338 F.3d at 1309, not determining which governmental unit
controls the sheriff’s use of its funds. And under Georgia law, the answer to the
proper inquiry is straightforward: sheriffs derive their funds from the county.
More importantly, Manders (yet again) focuses on the wrong issue—the
absence of county control as opposed to the presence of state control. Any lack of
county control here does not by default indicate state control. Given the structure of
county government in Georgia, it makes complete sense that checks exist on the
county commission’s power to shape the sheriff’s budget. As I explained earlier,
sheriffs are county officers, but by design, they work independently from county
governing bodies. See Saba, 598 S.E.2d at 439 (reiterating that the sheriff “is an
elected constitutional county officer and not an employee of the county commission”)
(emphasis added). Sheriffs would lose their constitutionally guaranteed
independence if county commissions could dictate how they spend their budget.
For these reasons, Manders erred in concluding that the third factor also tilted
toward immunity.
D.
Finally, we must consider who is financially responsible for a judgment against
the sheriff. Everybody agrees that this factor weighs against immunity for sheriffs
because no law in Georgia requires the State to foot the bill for adverse judgments
against sheriffs. See Manders, 338 F.3d at 1327; Lake I, 840 F.3d at 1344. And yet
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in Manders we concluded that this fact “does not defeat immunity.” Manders, 338
F.3d at 1329.
This conclusion is at odds with the Supreme Court’s and our precedent on
Eleventh Amendment immunity. The Supreme Court has explained that “the
vulnerability of the State’s purse [i]s the most salient factor in Eleventh Amendment
determinations.” Hess, 513 U.S. at 48 (emphasis added). Indeed, the “prevention of
federal-court judgments that must be paid out of a State’s treasury” is the “impetus
for the Eleventh Amendment.” Id. We have reiterated that principle in our post-
Manders cases. For example, we concluded that the fact that the State of Florida did
not have to pay adverse judgments against county sheriffs was “in itself, a clear
marker that the Sheriff is not an arm of the state.” Abusaid, 405 F.3d at 1313.2
Manders, however, determines that “an actual drain on the state treasury” is
not necessary to find Eleventh Amendment immunity. Manders, 338 F.3d at 1327.
True, a drain on the State treasury may not be dipositive, but neither is control—the
only factor Manders seemed to care about. Manders purports to analyze all four
Eleventh Amendment factors, but in reality, it collapses the first three factors into
one—control. Yet the Supreme Court in Hess was clear that control is not
2
In Manders, we determined that a sheriff would have to pay adverse judgments against
him out of his own budget. Manders, 338 F.3d at 1327. We concluded that system would implicate
both county and state funds because the sheriff would have to “recoup that money from
somewhere.” Id. But in Abusaid, we held that indirect impacts on a state’s treasury are not enough
to implicate Eleventh Amendment interests. 405 F.3d at 1312.
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“dispositive” because it fails to account for the core purpose of the Eleventh
Amendment—protecting the State’s treasury. Hess, 513 U.S. at 48. The Court also
pointed out that control is a weak indicator of immunity because “ultimate control”
of every local-government entity resides with the State. Id. at 47. Control, then, if
taken to its logical conclusion, would make every local-government entity an “arm
of the state”—a conclusion that cannot be right. So in Manders, we should have put
more emphasis on this final factor and less on control.
II.
Even if we ultimately decline to rethink our reasoning and holding in Manders,
we should still review our holding in Purcell—the case the district court relied on
here—because Purcell is itself inconsistent with our holding in Manders.
Manders holds that the “arm of the state” analysis must “focus on the nature
of the particular function at issue” in the case. 338 F.3d at 1319. And Manders is
clear that the particular function should not be framed “too broad[ly].” Id. at 1309
n.9. For example, in Manders, Clinch County’s Sheriff was accused of permitting
his deputies to use excessive force at the county jail. Instead of framing the function
at issue broadly, Manders homes in on the precise function at issue: the sheriff’s
“force policy at the jail and the training and disciplining of his deputies in that
regard.” Id. at 1308-9. We emphasized that courts should not define particular
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functions “in some categorical all or nothing manner in connection with the county
jail.” Id. at 1309 n.9
But where Manders takes a scalpel, Purcell uses a meat axe. Instead of
tailoring the analysis to the precise function at issue—the prevention of inmate-on-
inmate violence—Purcell broadly declares that sheriffs function as an “arm of the
state” “when promulgating policies and procedures governing the conditions of
confinement” at county jails. Purcell, 400 F.3d at 1325. That “categorical all or
nothing” definition of the function at issue directly contradicts our prior holding in
Manders.
To make matters worse, Purcell’s broad definition of the function at issue
drastically expands the scope of our limited holding in Manders—that sheriffs are an
“arm of the state” when they establish use-of-force policy at county jails. Manders,
338 F.3d at 1328. But Purcell reads Manders’s holding to mean that sheriffs are
always an “arm of the state” when they create and enforce “policies and procedures
governing the conditions of confinement” at county jails. Purcell, 400 F.3d at 1325.
This expansion of Manders’s holding forecloses any case against a Georgia
sheriff regarding the operation of county jails, even though Manders explicitly rejects
that categorical approach. To stay true to our holding in Manders, then, at the very
least, we should reconsider Purcell’s holding that sheriffs act as an “arm of the state”
for any function related to the county jail. Rather, we should drill down on the
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specific function at issue in each case and determine, based on the four Manders
factors, whether the sheriff is acting as an “arm of the state” for that particular
function.
III.
It is time for us to reevaluate our decision in Manders. Our holding in that case
rests on a misinterpretation of Georgia law and our Eleventh Amendment immunity
precedent. And even if we do not revisit Manders, we should reconsider our overly
broad holding in Purcell that sheriffs are immune from all suits “when promulgating
policies and procedures governing conditions of confinement” at the county jail.
Purcell, 400 F.3d at 1325. That holding—a drastic expansion of our holding in
Manders—precludes on the basis of state immunity all those incarcerated in Georgia
county jails from vindicating their rights in federal courts. Our decision in this case
only further proves that fact. I respectfully urge the Court to reconsider these cases.
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