The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-12069 FEB 6, 2007
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 05-00871-CV-BE-S
MELISSA BARBEE,
Plaintiff-Appellee,
versus
NAPHCARE, INC,
SHELBY COUNTY CORRECTIONAL
FACILITY,
Defendants,
SHERIFF MIKE CURRY,
CAPTAIN MCKALE SMITHERMAN,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(February 6, 2007)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Sheriff Chris Curry of Shelby County, Alabama, and Captain Mikul
Smitherman, the Administrator of the Shelby County Correctional Facility, appeal
the district court’s denial of their motion to dismiss Count VI of the amended
complaint, in which plaintiff Melissa Barbee, a white female, asserted a claim
under 42 U.S.C. § 1983 for violation of her equal protection rights based on the
termination of her employment.1 We issued the following jurisdictional question,
inter alia, to the parties concerning this appeal: “[w]hether the district court’s
denial of defendants’ motion to dismiss as to Count Six of the amended complaint
is immediately appealable.” After the parties filed their responses, we entered an
order stating that the appeal could proceed because we have jurisdiction to review
the district court’s denial of the motion to dismiss “to the extent [the district court’s
order] was based on the defense of qualified immunity.” On appeal, the Appellants
contend that the district court should have dismissed Count VI for failure to state a
claim under § 1983. More specifically, as they did in the district court, Appellants
challenge the sufficiency of the amended complaint’s allegations against them,
1
Barbee initially had filed a cross-appeal from the dismissal, for failure to state a claim,
of Counts I through V of her amended complaint. We previously dismissed the cross-appeal for lack
of jurisdiction. Thus, only the dismissal of Count VI is before us.
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arguing that Barbee alleged a violation of her civil rights by “the defendants,” and
that her failure to specify the specific defendants is fatal to her Count VI claim.
Because it is not altogether clear that the district court reached the issue of
Appellants’ qualified immunity, which is the only issue over which we currently
have jurisdiction, we vacate and remand for further proceedings.
In Count VI of the amended complaint, Barbee asserted a claim under §
1983 for violation of her Equal Protection rights. More specifically, she alleged
that her employment with Naphcare, Inc., a private company that contracted to
provide medical services at the Shelby County Jail, was terminated unlawfully
because she has biracial children, dates African-American men, and refused to lie
during an official Alabama Bureau of Investigation inquiry. Appellants Curry and
Smitherman filed a motion to dismiss all counts. As to the Equal Protection claim
at issue in this appeal, they stated: “Said defendants are entitled to qualified
immunity from the sole claim brought pursuant to 42 U.S.C. § 1983 asserting an
equal protection violation.” In their supporting memorandum of law, however,
they did not argue that they were entitled to qualified immunity as to the Equal
Protection claim, instead arguing that Barbee failed to state a claim against them
because, rather than name them individually, the amended complaint named
“Defendants.”
3
In her response to the motion to dismiss, Barbee responded, without specific
reference to Count VI, that “the sheriff and deputy sheriff” were not entitled to
qualified immunity because they were acting within their discretionary authority
and the right to be free from racial discrimination in employment based upon
interracial association was clearly established.
In its order on the motion to dismiss, the district court found, as to Count VI,
that: (1) Curry and Smitherman conceded that Barbee “properly raise[d] a
constitutional claim;” and (2) Count VI sufficiently identified Curry and
Smitherman as defendants and, therefore, sufficiently pled a claim under § 1983.
The district court made no mention of the qualified immunity issue. Indeed, given
that Appellants raised it in their motion to dismiss but made no argument on the
matter in their supporting memorandum of law, it may be that the district court did
not consider the Appellants to have raised the defense by mere mention of it in the
motion to dismiss. Appellants then filed this interlocutory appeal.
On appeal, Curry and Smitherman argue that Barbee’s complaint fails to
state a claim for violation of a “clearly established “ constitutional right, and that
they are entitled to qualified immunity on Count VI. The Supreme Court has set
forth a two-part test for evaluating a claim of qualified immunity. The threshold
question is: “Taken in the light most favorable to the party asserting the injury, do
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the facts alleged show the officer’s conduct violated a constitutional right?”
Saucier v. Katz, 533 U.S. 194, 201 (2001). If a constitutional right would have
been violated under the plaintiff’s version of the facts, the court must then
determine “whether the right was clearly established.” Id.; Vinyard v. Wilson, 311
F.3d 1340, 1346 (11th Cir. 2002); cf. Hudson v. Hall, 231 F.3d 1289, 1296 n.5
(11th Cir. 2000) (while recognizing that the foregoing order of inquiry should be
followed generally, holding that it is not required absolutely). The defense of
qualified immunity “may be generally asserted (1) on a pretrial motion to dismiss
under Rule 12(b)(6) for failure to state a claim; (2) as an affirmative defense in the
request for judgment on the pleadings pursuant to Rule 12(c); (3) on a summary
judgment motion pursuant to Rule 56(e); or (4) at trial.” Skrtich v. Thornton, 280
F.3d 1295, 1306 (11th Cir. 2002).
Here, the district court determined first that Barbee “properly raise[d] a
constitutional claim[,]” which could be construed as analysis under the first prong
of the Saucier analysis. However, the court made no mention of qualified
immunity, nor of the second Saucier prong, in denying Curry and Smitherman’s
motion to dismiss on Count VI. Instead, the court analyzed Appellants’ alternative
argument -- that Barbee failed to state a claim because she had not alleged which
defendants she was referring to when she asserted, in Count VI, that “the
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defendants” terminated her. The district court rejected this argument: “Plaintiff’s
use of the term ‘defendants’ incorporates all defendants. Accordingly, Count Six
sufficiently identifies both Curry and Smitherman as parties against whom Plaintiff
is seeking relief under § 1983. Further, § 1983 does not require that Defendants be
Plaintiff’s employer; it is enough if they conspired with Naphcare to terminate
Plaintiff in violation of her constitutional rights. This claim is sufficiently pled to
survive a Motion to Dismiss; and, accordingly, Defendants’ Motion as to Count
Six is DENIED.” From our review of the record, we cannot discern whether the
district court considered the parties to have raised the qualified immunity issue. In
any event, it is clear that the district court did not engage in the Saucier analysis.
On this record, we cannot engage in meaningful appellate review. Instead,
we remand the case to the district court for further proceedings, including for a
determination of whether the motion to dismiss properly raised qualified immunity
as a defense to Count VI and, if so, application of the two-part test for qualified
immunity set forth in Saucier. See Selman v. Cobb County School Dist., 449 F.3d
1320, 1334, 1338 (11th Cir. 2006) (vacating and remanding for further findings of
fact where the record on appeal did not provide for meaningful appellate review).
VACATED AND REMANDED.
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