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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14433
Non-Argument Calendar
____________________
JONATHAN A. SASSER,
Plaintiff-Appellant,
versus
BOARD OF REGENTS OF THE UNIVERSITY
SYSTEM OF GEORGIA,
UNIVERSITY OF GEORGIA,
JERE WADE MOREHEAD,
Individually and as President, University of Georgia,
UNIVERSITY OF GEORGIA EQUAL OPPORTUNITY OFFICE,
ERYN JANYCE DAWKINS,
Individually and as Director Equal Opportunity Office,
University of Georgia, et al.,
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2 Opinion of the Court 21-14433
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:20-cv-04022-SDG
____________________
Before NEWSOM, BRANCH, and GRANT, Circuit Judges
PER CURIAM:
Plaintiff Jonathan Sasser (“Sasser”) appeals pro se the district
court’s dismissal of his second amended complaint alleging
violations of his First Amendment right to freedom of speech while
attending the University of Georgia (“UGA”) as a student and
athlete on the UGA baseball team. Because the district court’s
dismissal was proper, we affirm.
I. Factual Background
On or about September 29, 2018, Sasser attended a home
UGA football game and, while in attendance, used a racial slur in
reference to one of the players. Over a period of days following
the football game, Sasser met with his baseball coach and various
officials from the UGA Athletic Association (“UGAAA”) to discuss
the incident. On or about October 3, 2018, these individuals
informed Sasser he would be removed from the baseball team.
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21-14433 Opinion of the Court 3
During this same period, the director of UGA’s Equal
Opportunity Office (“EOO”), Defendant Eryn Janyce Dawkins,
conducted an investigation that concluded with Sasser’s
suspension for the remainder of the fall 2018 semester. Sasser
appealed his suspension and removal from the baseball team but
Defendant Jere Wade Morehead, UGA’s President, upheld the
decisions. After a second appeal, the Board of Regents of the
University System of Georgia (“the Board of Regents”) also upheld
the decisions.
Sasser filed suit against UGA, the Board of Regents, the
EOO, and the UGAAA under the pseudonym “John Doe” asserting
seven causes of action alleging free speech, due process, and equal
protection violations, as well as breach of contract, and seeking
declaratory and injunctive relief. He also named the following four
school officials in both their official and personal capacities for
violating his First Amendment rights: Morehead, Dawkins,
Edward McMillian Tate (UGA’s Vice Chancellor of Legal Affairs),
and C. Dean Alford, P.E. (a UGA Regent).
Sasser amended his complaint to seek additional forms of
relief, including reversal of his removal from the UGA baseball
team and expungement of his record. The district court ordered
him to file a second amended complaint identifying himself by
name. In his second amended complaint, Sasser finally identified
himself alleging that the disciplinary actions violated his
constitutional rights under
42 U.S.C. § 1983 and were taken in
retaliation for his exercise of his First Amendment freedoms.
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Sasser also brought Fourteenth Amendment equal protection and
due process claims, and a breach of contract claim. Additionally,
he sought declaratory and injunctive relief.
Following motions to dismiss filed by each Defendant, the
district court dismissed Sasser’s second amended complaint.
The district court dismissed all claims against UGA and the
EOO because, as member institutions of the Board, neither are
legal entities that can be sued. The district court also dismissed all
claims against the Board of Regents, concluding that it was entitled
to Eleventh Amendment sovereign immunity. As for the UGAAA,
the district court accepted Sasser’s argument that the UGAAA was
an “arm of the state” and dismissed the claims against it as being
barred by Eleventh Amendment sovereign immunity. Finally, the
district court dismissed the claims against the individual
Defendants in their official capacity on sovereign immunity
grounds, concluding that, because Sasser based those claims solely
on past conduct, Ex Parte Young,
209 U.S. 123 (1908), did not apply.
As for the remaining claims against the individual
Defendants in their personal capacities, the district court concluded
that the Defendants were entitled to qualified immunity, finding
that Sasser had not alleged a constitutional violation, “let alone one
[that was] clearly established.” The district court dismissed Sasser’s
equal protection, due process, and breach of contract claims—each
for failure to state a claim. Because none of Sasser’s claims
remained, the district court dismissed his claims for declaratory and
injunctive relief.
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21-14433 Opinion of the Court 5
On appeal, proceeding pro se, Sasser challenges the dismissal
of his claims against the individual Defendants acting in their
personal capacities on the grounds of qualified immunity.1 Because
1
Sasser has abandoned all other claims on appeal. An appellant can abandon
a claim by: (1) making only passing reference to it, (2) raising it in a perfunctory
manner without supporting arguments and authority, (3) referring to it only
in the “statement of the case” or “summary of the argument,” or (4) referring
to the issue as mere background to the appellant’s main arguments. Sapuppo
v. Allstate Floridian Ins. Co.,
739 F.3d 678, 681–82 (11th Cir. 2014). While we
will liberally construe pro se pleadings, issues not briefed on appeal are
normally deemed abandoned and will not be considered. Timson v. Sampson,
518 F.3d 870, 874 (11th Cir. 2008).
Sasser does not challenge the district court’s determination that his
First Amendment claims against the Board of Regents or the individual
Defendants acting in their official capacity are barred by sovereign immunity.
The same is true for his claims for declaratory and injunctive relief based on
the alleged First Amendment violations. While Sasser’s briefing refers broadly
to “immunity/qualified immunity” for the individual Defendants, it focuses
on arguments related to qualified immunity only. He has therefore
abandoned his claims based upon sovereign immunity. Even if he had not
abandoned these claims, however, they would fail on the merits because the
Board of Regents, as an arm or instrumentality of the State of Georgia is
entitled to sovereign immunity. See, e.g., Stroud v. McIntosh,
722 F.3d 1294,
1297 (11th Cir. 2013) (“There is no dispute that the Board [of Regents of the
University System of Georgia] is an arm of the state for the purposes of
asserting sovereign immunity.”). Similarly, the individual Defendants, as
alleged agents of the Board of Regents, are also entitled to sovereign
immunity. See Busby v. City of Orlando,
931 F.2d 764, 776 (11th Cir. 1991).
As for his claims against the individual Defendants in their official
capacities for injunctive and declaratory relief, Sasser does not challenge the
district court’s determination that Ex parte Young,
209 U.S. 123 (1908), did not
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6 Opinion of the Court 21-14433
the district court did not err in dismissing Sasser’s second amended
complaint, we affirm.
II. Discussion
We review de novo a district court’s order granting the
Defendants’ motion to dismiss. McDonald v. S. Farm Bureau Life
Ins. Co.,
291 F.3d 718, 722 (11th Cir. 2002).
apply and the individual Defendants were entitled to sovereign immunity on
those claims as well.
Likewise, Sasser does not mention his equal protection or breach of
contract claims on appeal.
Id. Additionally, Sasser raised his due process
claims for the first time in his reply brief. While this Court construes briefs
filed by pro se litigants liberally, we will not address issues raised for the first
time in an appellant’s reply brief. United States v. Levy,
379 F.3d 1241, 1244
(11th Cir. 2004).
Sasser also has not challenged on appeal the district court’s dismissal
of his claims against UGA or the EOO on the grounds that neither are legal
entities capable of being sued in their own capacities. See Timson,
518 F.3d at
874. Even if he had not abandoned those claims, they would fail on the merits
because neither UGA nor the EOO are distinct, legal entities capable of being
sued under Georgia law. Bd. of Regents of the Univ. Sys. of Ga. v. Doe,
278
Ga. App. 878, 878 (2006) (holding that member institutions of the Board are
not “separate or distinct” legal entities and thus “cannot sue or be sued”).
Lastly, Sasser does not challenge the district court’s dismissal of his
claims against the UGAAA. See Timson,
518 F.3d at 874. Even if he had not,
his challenge would fail on the merits because the UGAAA is a private
corporation, not a state actor, and therefore cannot be liable under § 1983.
O.C.G.A. §§ 20-3-78, 20-3-79(a).
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A. Qualified Immunity for the individual
Defendants acting in their personal capacities
Because Sasser has abandoned all his other claims, the
remaining issue on appeal is Sasser’s § 1983 claim against the
individual Defendants for monetary damages based upon alleged
First Amendment violations. Even assuming that Sasser can show
that his First Amendment right to free speech was violated, he has
not shown that the allegedly violated right was clearly established.
The individual Defendants are therefore entitled to qualified
immunity for the claim against them in their personal capacities.
A complaint stating a claim for relief must contain “a short
and plain statement of the claim showing that the pleader is entitled
to relief.” Fed. R. Civ. P. 8(a)(2). Factual allegations in a complaint
“must be enough to raise a right to relief above the speculative
level, on the assumption that all the allegations in the complaint
are true.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)
(citations omitted). A plaintiff’s allegations must amount to more
than “labels and conclusions.”
Id.
Section 1983 prohibits officials acting under color of state
law from depriving another of their constitutional rights.
42 U.S.C.
§ 1983. Qualified immunity protects a defendant from liability
under § 1983 for discretionary acts, “as long as [those] acts do not
violate clearly established . . . constitutional rights of which a
reasonable person would have known.” Jackson v. Sauls,
206 F.3d
1156, 1164 (11th Cir. 2000). “The immunity protects all but the
plainly incompetent or those who knowingly violate the law.”
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Jordan v. Mosley,
487 F.3d 1350, 1354 (11th Cir. 2007) (quotation
omitted).
Overcoming the official’s qualified immunity defense
ordinarily involves a two-part inquiry. Id. at 1137. We consider:
(1) “[whether] the facts, construed in the light most favorable to
the plaintiff, show that a constitutional right has been violated; and
(2) whether the right violated was clearly established.” Roberts v.
Spielman,
643 F.3d 899, 904 (11th Cir. 2011) (quotation omitted).
Both elements must be satisfied to overcome qualified immunity.
Id. A court may address these factors in either order it deems most
appropriate, see Case v. Eslinger,
555 F.3d 1317, 1325–26 (11th Cir.
2009), and a public official is entitled to qualified immunity if the
plaintiff fails to establish either one, see Pearson v. Callahan,
555
U.S. 223, 236 (2009).
The controlling question in the “clearly established” prong
of the qualified immunity analysis is whether the individual
Defendants received “fair warning” that their conduct was
unconstitutional. Wade v. United States,
13 F.4th 1217, 1225 (11th
Cir. 2021). This “standard is a demanding one.” Cantu v. City of
Dothan,
974 F.3d 1217, 1235 (11th Cir. 2020). This is especially true
in the context of the First Amendment. See, e.g., Gaines v.
Wardynski,
871 F.3d 1203, 1220 (11th Cir. 2017) (“It is particularly
difficult to overcome the qualified immunity defense in the First
Amendment context.”); Maggio v. Sipple,
211 F.3d 1346, 1354 (11th
Cir. 2000) (“[A] defendant in a First Amendment suit will only
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rarely be on notice that his actions are unlawful.” (quotation
omitted)).
There are three methods by which a plaintiff can
demonstrate that a right was clearly established. We focus
primarily on the first method of the analysis, in which “the law can
be ‘clearly established’ for qualified immunity purposes only by
decisions of the U.S. Supreme Court, Eleventh Circuit Court of
Appeals, or the highest court of the state where the case arose.”
Jenkins v. Talladega City Bd. of Educ.,
115 F.3d 821, 826 n.4 (11th
Cir. 1997). 2 “This method requires us to consider whether the
factual scenario that the official[s] faced is fairly distinguishable
from the circumstances facing [the] government official[s] in a
previous case.” Gaines,
871 F.3d at 1209 (quotation omitted).
“Although existing case law does not necessarily have to be
‘directly on point,’ it must be close enough to have put ‘the
statutory or constitutional question beyond debate.’”
Id. at 1209–
10 (quoting Ashcroft v. Al-Kidd,
563 U.S. 731, 741 (2011)).
Sasser argues that Healy v. James,
408 U.S. 169 (1972), and
Papish v. Board of Curators of the University of Missouri,
410 U.S.
667 (1973), clearly establish a First Amendment violation in this
case. In doing so, he argues that Tinker v. Des Moines Independent
2
Plaintiffs can also satisfy the “clearly established” prong by pointing to “a
broader, clearly established principle that should control the novel facts of the
situation,” or by demonstrating that “the conduct involved in the case may so
obviously violate the constitution that prior case law is unnecessary.” Terrell
v. Smith,
668 F.3d 1244, 1255 (11th Cir. 2012). Sasser does neither here.
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Community School District,
393 U.S. 503 (1969), and Bethel School
District No. 403 v. Frazer,
478 U.S. 675 (1986), the cases upon
which the Defendants (and the district court) rely, dealt only with
high school students’ First Amendment rights, while Healy and
Papish address college and university students’ rights.
In Healy, the Supreme Court held that a college violated the
plaintiffs’ free association rights when it denied recognition of their
student group. Healy,
408 U.S. at 170–71. Citing Tinker, the Court
stated that “state colleges and universities are not enclaves immune
from the sweep of the First Amendment.”
Id. at 180. Indeed, it
recognized that the protection of First Amendment freedoms is
“vital” on the campuses of colleges and universities, which
represent “the marketplace of ideas.”
Id. One year later in Papish,
the Supreme Court held that the University of Missouri violated a
graduate student’s First Amendment rights by expelling him for
disseminating a student newspaper with an expletive-bearing
headline. Papish,
410 U.S. at 671. The Court reaffirmed Healy and
stated that while “a state university[ has an] undoubted prerogative
to enforce reasonable rules governing student conduct,” it may not
“shut off” the “dissemination of ideas—no matter how offensive to
good taste.”
Id. at 669–70. In so holding, it also acknowledged that
universities nonetheless may apply “nondiscriminatory [and]
reasonable rules governing conduct” of students.
Id.
Sasser is correct that Healy and Papish speak to the First
Amendment rights of university students. And, of course, the First
Amendment protects speech that is offensive and abhorrent.
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However, he has not pointed to a case from the United States
Supreme Court, our Court, or the Supreme Court of Georgia in
which a student was disciplined in violation of the First
Amendment for using a racial slur on campus during a school-
sponsored event. See Gaines,
871 F.3d at 1209. Both Healy and
Papish are factually distinguishable from this case. Healy
concerned the First Amendment right to free association, not the
freedom of speech, and addressed formal recognition of a student
group rather than the discipline of a student for his or her individual
speech. Healy,
408 U.S. at 170–71. Likewise, Papish addressed the
discipline of a student for distribution of a student newspaper
containing what the university argued was obscenity. Papish,
410
U.S. at 671. The facts of that case were materially different from
this case and thus cannot defeat qualified immunity.
And true, both Tinker and Bethel involved students in public
high schools. The plaintiffs in Tinker were high school students
who were disciplined for wearing black armbands in protest of the
Vietnam War, Tinker,
393 U.S. at 504, while the plaintiff in Bethel
was a high school student who delivered a speech riddled with
“elaborate, graphic, and explicit sexual” content, Bethel,
478 U.S.
at 678. The Supreme Court held that the school in Tinker violated
the plaintiffs’ rights by suspending them, Tinker,
393 U.S. at 514,
but in Bethel upheld the plaintiff’s suspension from school, Bethel,
478 U.S. at 686. Tinker “held that public schools may regulate
student expression when it ‘substantially interfere[s] with the work
of the school or impinge[s] upon the rights of other students.’” Doe
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v. Valencia Coll.,
903 F.3d 1220, 1229 (11th Cir. 2018) (quoting
Tinker,
393 U.S. at 509). While the Court “ma[de] clear that
students do not ‘shed their constitutional rights to freedom of
speech or expression at the schoolhouse gate,’” Morse v. Frederick,
551 U.S. 393, 396 (2007) (quoting Tinker,
393 U.S. at 506), the Court
also held in Bethel that “the constitutional rights of students in
public school are not automatically coextensive with the rights of
adults in other settings,” Bethel,
478 U.S. at 682. For those reasons,
public schools are permitted to impose sanctions upon students “in
response to . . . offensively lewd and indecent speech.”
Id. at 685.
Still, it is not clear to what extent Tinker applies to the
university setting, making it all the more obvious that the law in
this area is not so clearly established to put the individual
Defendants on notice so as to defeat qualified immunity. Indeed,
our Court has stated that “it’s not at all clear that Tinker[ ]. . .
applies in the university—as opposed to the elementary- and
secondary-school—setting,” acknowledging that the caselaw in
this area “sends mixed signals.” Speech First, Inc. v. Cartwright,
32
F.4th 1110, 1127 n.6 (11th Cir. 2022). Still, Sasser has not pointed
to a factually similar case that “truly compels . . . the conclusion . . .
that [the] Defendant[s] violated [his] federal rights.” Evans v.
Stephens,
407 F.3d 1272, 1282 (11th Cir. 2005) (en banc).
We therefore conclude that the district court did not err in
dismissing Sasser’s second amended complaint because, even if the
individual Defendants did violate Sasser’s rights, as he alleged,
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those rights were not clearly established, so they were entitled to
qualified immunity.
III. Conclusion
For these reasons, the district court did not err in dismissing
Sasser’s second amended complaint. Accordingly, we affirm.
AFFIRMED.
