Ylia Lavender v. City of Atlanta, Georgia , 164 F. App'x 962 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 2, 2006
No. 05-14303 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-02716-CV-RWS-1
YLIA LAVENDER,
Plaintiff-Counter-Defendant-Appellee,
versus
OFFICER RAYMOND BUNN,
Defendant-Counter-Claimant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(February 2, 2006)
Before DUBINA, HULL and COX, Circuit Judges.
PER CURIAM:
City of Atlanta Police Officer Raymond Bunn appeals the district court’s
partial denial of his motion for summary judgment on claims asserted against him
by Ylia Lavender. Lavender asserts a Fourth Amendment excessive force claim
and several state law claims arising out of a stop for violation of a Georgia anti-
noise statute and the subsequent arrest. Bunn contends that qualified immunity is a
complete defense to Lavender’s excessive force claims and official immunity is a
complete defense to all of Lavender’s state law tort claims. (Appellant’s Opening
Brief at 5.) He argues that the district court erred when it found that, construing
the facts in the light most favorable to the non-moving party, as it must in
consideration of a motion for summary judgment, Bunn is not entitled to these
defenses on any of Lavender’s claims arising out of Bunn’s allegedly excessive use
of force.
As a preliminary matter, we consider a jurisdictional question. Lavender
argues that this court does not have jurisdiction to review the partial denial of
Bunn’s motion for summary judgment as it is not a final decision. We reject that
argument and find that we do have jurisdiction in a case such as this case, where
the district court has held that, under the plaintiff’s version of the facts, an officer
has violated clearly established law. See GJR Invs., Inc., v. Escambia, Fla., 132
F.3d 1359, 1366 (11th Cir. 1998). The denial of summary judgment on the state
law claims, based on a denial of official immunity, is also immediately appealable.
See Cummings v. DeKalb County, 24 F.3d 1349, 1352 (11th Cir. 1994).
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On the merits of the appeal, having considered the briefs and relevant parts
of the record, we find error in the district court’s partial denial of Bunn’s motion
for summary judgment as to only one claim. The district court correctly found that
Bunn’s acts in stopping and arresting Lavender were discretionary acts for which
he is entitled to official immunity unless he acted with actual malice or intent to
injure. Thus, as a matter of law, Bunn is entitled to official immunity as to the
negligence claim set forth in the Complaint. (R.1-1.) We find no other error in the
district court’s order.
The order of the district court granting Bunn’s motion for summary
judgment in part and denying it in part is affirmed, except for the denial of
summary judgment on the negligence claim set forth in the Complaint; as to the
negligence claim, the denial of summary judgment is reversed.
AFFIRMED IN PART AND REVERSED IN PART.
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