Michael King v. Anthony Lumpkin , 545 F. App'x 799 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-10652
Non-Argument Calendar
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D.C. Docket No. 1:11-cv-00549-WSD
MICHAEL KING,
Plaintiff – Appellant,
versus
ANTHONY LUMPKIN,
individual and in his official capacity as a
police officer for the City of Jonesboro, Georgia
and as a resource officer for Clayton County Public Schools,
Defendant - Appellee.
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Appeal from the United States District Court
for the Northern District of Georgia
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(October 16, 2013)
Before TJOFLAT, MARCUS and MARTIN, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Michael King appeals from the district court’s final order
dismissing his complaint alleging claims under 42 U.S.C. § 1983, against Officer
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Anthony Lumpkin, in Lumpkin’s individual capacity and in his official capacity as
a police officer for the City of Jonesboro and a resource officer for Clayton County
Public Schools. On appeal, King argues that the district court erred in dismissing
his § 1983 claims under the Voting Rights Act of 1965 (“VRA”), the Fourth
Amendment, the Fourteenth Amendment, and the Fifteenth Amendment, as well as
his state constitutional law claim. After thorough review, we affirm.
We review de novo a district court’s grant of a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6), taking as true the factual allegations in
the complaint and construing them in the light most favorable to the plaintiff.
Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). Dismissal for
failure to state a claim under Rule 12(b)(6) is proper if the factual allegations are
not enough to raise a right of relief above the speculative level. Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007). We review a district court’s decision to
decline supplemental jurisdiction over state law claims for abuse of discretion. See
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357 (1988). We also review the
denial of a motion to amend a complaint for abuse of discretion. Green Leaf
Nursery v. E.I. DuPont De Nemours & Co., 341 F.3d 1292, 1300 (11th Cir. 2003).
The relevant background is this. On November 24, 2008, an ethics
complaint was filed with the Clayton County Ethics Commission against King, an
elected member of the Clayton County Board of Education (the “Board”). The
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ethics complaint alleged violations of Georgia House Bill 1302, which was enacted
“[t]o provide a code of ethics for the Clayton County School System; to provide
for prohibited practices; to provide for disclosure; to provide for an ethics
commission; . . . to provide for complaints; to provide for hearings and actions; to
provide for sanctions; . . . and for other purposes.” 2008 Ga. Laws 400, pmbl.
(“House Bill 1302”). Among other things, House Bill 1302 prohibits any elected
official of the Clayton County School System, including the Board, from
representing “private interests in any action or proceeding against the school
system or any office, department, or agency thereof.” Id. § 2(a)(4).
On February 16, 2009, the Commission found that King had violated House
Bill 1302 by: (1) representing a litigant in a suit against the Clayton County Public
Schools and certain of its employees while he was a member of the Board; (2)
failing to disclose a financial interest related to the operation of the Clayton County
Public Schools; and, (3) filing a lawsuit in the Superior Court of Clayton County
against the Clayton County Public Schools and Board asking the court to review
the actions of the Board in censuring him for representing a party against the Board
and for failing to disclose an adverse financial interest. The Commission ordered
that King immediately be removed from his position as a Board member.
On February 23, 2009, King “appeared at the central office for the Clayton
County Public Schools for the 7:00 p.m. school board meeting.” Before the start of
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the meeting, King claims that Officer Lumpkin physically removed him from his
seat on the Board, escorted him out of the building, and directed him not to return
to his seat until he appealed his removal by the Commission. King sued, alleging:
(1) a § 1983 claim for false arrest and wrongful removal from the School Board
meeting in violation of the Fourth Amendment; (2) two § 1983 claims for
violations of the Fourteenth and Fifteenth Amendment, respectively, as a result of
his removal from a Clayton County School Board meeting; and, (3) a § 1983 claim
for violations of his “federal constitutional and statutory rights” as a result of
Officer Lumpkin’s enforcement of House Bill 1302, which King says was not
precleared by the Department of Justice under Section 5 of the VRA. The district
court dismissed King’s complaint. This timely appeal follows.
First, we are unpersuaded by King’s argument that the district court erred in
granting qualified immunity to Lumpkin on the § 1983 claims. To establish a §
1983 claim, King must make a prima facie showing that: (1) an act or omission
deprived him of a right, privilege, or immunity secured by the Constitution or laws
of the United States, and (2) the act or omission was done by a person acting under
color of law. Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas Dist., 992 F.2d
1171, 1174 (11th Cir. 1993). Qualified immunity protects government officials
performing discretionary functions from suits in their individual capacities, unless
their conduct violates “clearly established statutory or constitutional rights of
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which a reasonable person would have known.” Hope v. Pelzer, 536 U.S. 730, 739
(2002) (quotation omitted). “The purpose of this immunity is to allow government
officials to carry out their discretionary duties without the fear of personal liability
or harassing litigation, protecting from suit all but the plainly incompetent or one
who is knowingly violating the federal law.” Lee v. Ferraro, 284 F.3d 1188, 1194
(11th Cir. 2002) (quotation and citation omitted).
To be protected by qualified immunity, “the public official must first prove
that he was acting within the scope of his discretionary authority when the
allegedly wrongful acts occurred.” Id. (quotation omitted). In order to determine
whether the acts in question are discretionary acts protected by qualified immunity,
we must look at “whether the government employee was (a) performing a
legitimate job-related function (that is, pursuing a job-related goal), (b) through
means that were within his power to utilize.” Holloman ex rel. Holloman v.
Harland, 370 F.3d 1252, 1265 (11th Cir. 2004). We agree with the district court
that Officer Lumpkin was carrying out his discretionary duties as a law
enforcement officer when he escorted King from his seat on the Board after King
had been removed from the Board by the Ethics Commission for ethical violations.
If a government official was acting within the scope of his discretionary
authority, “the burden then shifts to the plaintiff to show that the grant of qualified
immunity is inappropriate.” McCullough v. Antolini, 559 F.3d 1201, 1205 (11th
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Cir. 2009). To do so, the plaintiff must demonstrate: one, that the facts viewed in
the light most favorable to the plaintiff establish a constitutional violation by the
officers, and, two, that it was clearly established at the time of the incident that the
actions of the defendant were unconstitutional. Id. We need not conduct this
qualified immunity analysis in any specific order; rather, we are permitted to
exercise our sound discretion in deciding which prong of this inquiry to address
first. Id. In assessing the clearly-established prong, we ask “whether it would be
clear to a reasonable officer that his conduct was unlawful in the situation he
confronted.” Vinyard v. Wilson, 311 F.3d 1340, 1350 (11th Cir. 2002) (quotation
omitted). Thus, in order for a plaintiff to show that a constitutional violation was
clearly established, she must show (1) “that a materially similar case has already
been decided, giving notice to the police”; (2) “that a broader, clearly established
principle should control the novel facts in this situation”; or (3) “this case fits
within the exception of conduct which so obviously violates [the] constitution that
prior case law is unnecessary.” Keating v. City of Miami, 598 F.3d 753, 766 (11th
Cir. 2010) (quotation omitted).
Here, King claims that Officer Lumpkin should have read the entirety of
House Bill 1302 prior to “escorting plaintiff out of the building and directing him
not to return to his seat on the school board until he appealed a removal
recommendation by the [Ethics Commission Order].” However, the Ethics
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Commission Order expressly provided that “the Clayton County School System
Ethics Commission hereby ORDERS that Michael B. King be, and he hereby is,
REMOVED from his seat as the member of the Clayton County Board of
Education from District 4, effective immediately.” Further, although House Bill
1302 says that “the accused member shall remain a voting member of the board
until [all appeals are exhausted],” House Bill 1302 also gives the commission the
power to sanction unethical behavior by “order[ing] the removal of the board
member from office.” House Bill 1302 § 4(h), (k). King cites to nothing that
would have given Officer Lumpkin fair warning that enforcing a valid Ethics
Commission Order recommending removal -- with or without ascertaining King’s
appeal status at the time he escorted him out of the meeting -- was a violation of a
clearly established constitutional right under the Fourth, Fourteenth, or Fifteenth
Amendments. Indeed, King does not even make any specific legal argument about
any due process rights that might have been affected. See Greenbriar, Ltd. v. City
of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (stating that passing
references to issues are insufficient to raise a claim for appeal, and such issues are
deemed abandoned). 1 Accordingly, we affirm the district court’s conclusion that
Officer Lumpkin is entitled to qualified immunity for King’s § 1983 claims. 2
1
King has also abandoned any challenge to the district court’s finding that Officer
Lumpkin’s actions were reasonable because Officer Lumpkin had probable cause to believe that
a valid removal order was being violated.
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Nor are we convinced by King’s argument that the district court erred in
dismissing his § 1983 claim against Officer Lumpkin in his official capacity. “A
claim asserted against an individual in his or her official capacity is, in reality, a
suit against the entity that employs the individual.” Mann v. Taser Int’l, Inc., 588
F.3d 1291, 1309 (11th Cir. 2009). A government entity is only liable under
Section 1983 for the actions of its employees “when execution of a government’s
policy or custom, whether made by its lawmakers or by those whose edicts or acts
may fairly be said to represent official policy, inflicts the injury . . . .” Monell v.
Dep’t of Soc. Serv., 436 U.S. 658, 694 (1978). “A policy is a decision that is
officially adopted by the municipality, or created by an official of such rank that he
or she could be said to be acting on behalf of the municipality. A custom is a
practice that is so settled and permanent that it takes on the force of law.” Cooper
v. Dillon, 403 F.3d 1208, 1221 (11th Cir. 2005) (quotation omitted).
Here, King’s complaint failed to state a claim against Officer Lumpkin in his
official capacity because: (1) House Bill 1302 is not an official policy of the City
of Jonesboro, but rather is a bill passed by the Georgia legislature; and (2) the
2
Moreover, all of King’s claims based on Section 5 of the VRA -- including whether a
three-judge panel was required, whether a declaratory judgment was warranted, and whether an
injunction was warranted -- were properly dismissed. This is because, among other things, the
United States Supreme Court recently held, in Shelby County, Ala. v. Holder, 133 S. Ct. 2612(2013), that the preclearance requirements of Section 5 of the VRA cannot be enforced until
Congress amends the coverage formula in Section 4 of the VRA. Id. at 2631.
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Clayton County Public Schools Ethics Commission Order is not an official policy
of the City of Jonesboro. Id. Thus, we affirm the district court’s dismissal of
King’s claim against Officer Lumpkin in his official capacity.
We also reject King’s claim that the district court should take supplemental
jurisdiction of his state law claims. As we’ve already determined, the district court
properly dismissed all of King’s federal claims. Therefore, the district court did
not abuse its discretion in declining to exercise supplemental jurisdiction over
King’s state law claims.
Finally, to the extent King argues that the district court abused its discretion
in denying King’s request to amend his complaint, we disagree. Because King is a
licensed attorney, he does not have the right to have his pleading liberally
construed. See Olivares v. Martin, 555 F.2d 1192, 1194 n.1 (5th Cir. 1977)
(licensed attorneys proceeding pro se not entitled to have pleadings liberally
construed). 3
AFFIRMED.
3
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all Fifth Circuit decisions issued before October 1, 1981.
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