The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 05-16360 ELEVENTH CIRCUIT
OCTOBER 18, 2006
________________________
THOMAS K. KAHN
CLERK
D. C. Docket No. 04-00117-CV-F-N
THOMAS JOHNSON,
Plaintiff-Appellee,
versus
SAMUEL OLGILVIE, individually and as an
explorer for the City of Clanton,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(October 18, 2006)
Before ANDERSON and DUBINA, Circuit Judges, and VINSON,* District Judge.
PER CURIAM:
_____________________
*Honorable C. Roger Vinson, United States District Judge for the Northern District of Florida,
sitting by designation.
After careful consideration, and for the reasons noted herein and discussed at
oral argument, we conclude that the judgment of the district court with respect to
appellant Olgilvie is due to be affirmed. With respect to appellant’s challenge to
his status as a state actor, and based on the facts assumed by the district court, we
conclude that Williams v. United States, 341 U.S. 97, 71 S.Ct. 576 (1951), clearly
establishes that appellant here was a state actor. With respect to the excessive force
claim, we accept the facts assumed by the district court, namely, that appellant
actively participated in the arrest of plaintiff, and personally participated in the
beating after the plaintiff was already down, not resisting, and handcuffed; during
the beating, plaintiff’s head was slammed into the paved parking lot. Under the
assumed facts, the district court did not err in denying qualified immunity with
respect to plaintiff’s excessive force claim. Lee v. Ferraro, 284 F.3d 1188 (11th Cir.
2002); Slicker v. Jackson, 215 F.3d 1225 (11th Cir. 2000); and Thornton v. City of
Macon, 132 F.3d 1395 (11thCir. 1998). Also, on the facts assumed by the district
court and accepted by us, it is clear that there was no arguable probable cause for
the arrest. Finally, we agree with the district court’s denial of Olgilvie’s claim for
immunity from the Alabama law claims under the Voluntary Service Act.
AFFIRMED.
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