# Ylia Lavender v. City of Atlanta, Georgia

> Court of Appeals for the Eleventh Circuit · February 2, 2006 · 164 F. App'x 962

URL: https://www.frixlaw.com/law-library/cases/47268

## Case

- **Full name:** Ylia LAVENDER, Plaintiff-Counter-Defendant-Appellee, v. Officer Raymond BUNN, Defendant-Counter-Claimant-Appellant
- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** February 2, 2006
- **Citations:** 164 F. App'x 962
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Dubina, Hull, Cox
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

[DO NOT PUBLISH]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).

2
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.

3

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/47268. Public record. Not legal advice.