Frank Hartley v. City of Tuscaloosa Alabama

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

FILED

________________________ U.S. COURT OF

APPEALS

No. 05-10174 ELEVENTH CIRCUIT

Non-Argument Calendar AUGUST 10, 2005

________________________ THOMAS K. KAHN

CLERK

D. C. Docket No. 04-00519-CV-CO-W

FRANK HARTLEY,

Plaintiff-Appellee,

versus

BRIAN BUTLER,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Northern District of Alabama

_________________________

(August 10, 2005)

Before CARNES, MARCUS and COX, Circuit Judges.

PER CURIAM:

In this interlocutory appeal, Brian Butler challenges the decision of the district

court denying his motion to dismiss. Butler contends that the district court erred in

denying his motion to dismiss grounded upon qualified immunity.1 We agree.

The allegations in Plaintiff’s complaint are sufficient to show that Butler was

acting within his discretionary authority as Associate Director of Human Resources

for the City of Tuscaloosa. See Smith v. Siegelman, 322 F.3d 1290, 1294-95 (11th

Cir. 2003). For example, in an effort to hold the City and the Civil Service Board of

Tuscaloosa vicariously liable for Butler’s conduct, the Plaintiff alleges that Butler

was employed by the City as Associate Director, and later Director, of the City’s

Human Resource Department, which he alleged “provides support to the City of

Tuscaloosa Civil Service Board in the management and governing [sic] of the City’s

Human Resources.” (R.1-1 at 15.) Plaintiff further states that:

[e]ach and every act which Plaintiff alleges was committed by Butler .

. . under color of law; and by the City, and Civil Service Board (by and

through its/their respective employees, representatives and/or agents)

under color of law and within the line and scope of such employees’,

agents’, representatives’, job duties with the City and/or Civil Service

Board; and/or was so committed and/or otherwise perpetrated by

Defendants, jointly and severally, under color of law as an . . . employee,

agent, and/or representative of the Defendants . . . .

1

The Plaintiff has not filed a brief in this appeal.

2

(Id. at 2) (emphasis added). Such allegations are sufficient to show that Butler was

acting within, or reasonably related to, the outer perimeter of his official duties. See

Maggio v. Sipple, 211 F.3d 1346, 1350 n.2 (11th Cir. 2000).

We also agree with Butler’s contention that the Plaintiff has failed to allege any

violation of a clearly established constitutional right. See Saucier v. Katz, 533 U.S.

194, 201, 121 S. Ct. 2151, 2156 (2001). The Plaintiff conceded below that his claim

is “factually novel,” and he has not identified any case that directly supports his

theory of liability. (R.1-10 at 11.) The Plaintiff relies primarily on Village of

Willowbrook v. Olech, 528 U.S. 562, 120 S. Ct. 1073 (2000) in support of his Equal

Protection claim. But, neither the Supreme Court nor this circuit has ever recognized

an Olech-style claim in the context of public employment. Because of the admittedly

novel theory here, Plaintiff cannot make out any clearly established constitutional

violation. See Brosseau v. Haugen, __ U.S. __, 125 S. Ct. 596, 599 (2004) (“It is

important to emphasize that this inquiry ‘must be undertaken in light of the specific

context of the case, not as a broad general proposition.’” (quoting Saucier, 533 U.S.

at 201, 121 S. Ct. at 2151)). Butler is therefore entitled to qualified immunity.

The order denying Butler’s motion to dismiss is reversed and the case is

remanded to the district court with instructions to dismiss the action against Butler.

REVERSED AND REMANDED.

3