                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT           FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                               MAY 25, 2011
                                No. 09-16462
                                                                JOHN LEY
                          ________________________
                                                                 CLERK

                     D. C. Docket No. 00-00753-CV-CG-M

C.C., a minor, by her parents and natural guardians,
Aretha and Chris Andrews,
R.S.H., a minor, by her parent and natural guardian,
Betty Jean Murphy,

                                                   Plaintiffs-Appellees,

                                      versus

MONROE COUNTY BOARD OF EDUCATION,
MIKE FLOYD,
                                                   Defendants,

DARENELL PAYNE.

                                              Defendant-Appellant.
                          ________________________

                   Appeal from the United States District Court
                      for the Southern District of Alabama
                         _________________________

                                 (May 25, 2011)

Before MARTIN, COX and BLACK, Circuit Judges.

PER CURIAM:
      Plaintiffs originally filed this suit in August 2000. An Amended Complaint

was filed in November 2000 alleging multiple claims. The procedural history of

this case is lengthy and complex. The sole claim at issue is Plaintiffs’ 42 U.S.C.

§ 1983 claim that Defendant Darenell Payne, in his individual capacity, violated

the Equal Protection Clause of the Fourteenth Amendment. The district court

denied Payne’s summary judgment motion, holding Payne is not entitled to

qualified immunity on the equal protection claim. Before us now is Payne’s

interlocutory appeal of the denial of qualified immunity.

      We analyze a government official’s assertion of qualified immunity in two

parts. “First, the official must prove that the allegedly unconstitutional conduct

occurred while he was acting within the scope of his discretionary authority.”

Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1281 (11th Cir. 1998). “Second, if

the official meets that burden, the plaintiff must prove that the official’s conduct

violated clearly established law.” Id.

      As to the first part, we previously held Payne met his burden of proof and

was acting within his discretionary authority. C.C. v. Monroe Cnty. Bd. of Educ.,

299 F. App’x 937, 940-41 (11th Cir. 2008). As to the second part of the analysis,

the Plaintiffs must now prove Payne’s conduct violated clearly established law.

James, 157 F.3d at 1281. In other words, “the burden shifts to the plaintiff to

                                          2
show that the defendant is not entitled to qualified immunity.” Doe v. Sch. Bd. of

Broward Cnty., Fla., 604 F.3d 1248, 1265 (11th Cir. 2010) (internal quotation and

citation omitted). To satisfy this burden, a plaintiff must show: “(1) the defendant

violated a constitutional right, and (2) this right was clearly established at the time

of the alleged violation.” Id. When plaintiffs fail to allege a constitutional

violation, however, a court need not reach the “clearly established law” prong of

the qualified immunity inquiry. Cottone v. Jenne, 326 F.3d 1352, 1362 (11th Cir.

2003).

      It is at this point the Rule 12(b)(6) defense and the qualified immunity

defense become intertwined. Wooten v. Campbell, 49 F.3d 696, 699 (11th Cir.

1995). Under Rule 12(b)(6), Payne can defeat Plaintiffs’ cause of action if their

complaint fails “to state a claim upon which relief can be granted.” Fed. R. Civ. P.

12(b)(6). As the Supreme Court noted, “[a] necessary concomitant to the

determination of whether the constitutional right asserted by a plaintiff is ‘clearly

established’ at the time the defendant acted is the determination of whether the

plaintiff has asserted a violation of a constitutional right at all.” Siegert v. Gilley,

500 U.S. 226, 232, 111 S.Ct. 1789, 1793 (1991). Therefore, we must examine the




                                            3
Plaintiff’s Amended Complaint to determine if it states a violation of the Equal

Protection Clause.1

           The Equal Protection Clause protects against government actions which

“affect some groups of citizens differently than others.” Engquist v. Or. Dep’t of

Agric., 553 U.S. 591, 601, 128 S. Ct. 2146, 2152-53 (2008) (quoting McGowan v.

Maryland, 366 U.S. 420, 425, 81 S. Ct. 1101, 1105 (1961)). An equal protection

claim against a supervisor, like Payne, requires a showing of intentional

discrimination. Ashcroft v. Iqbal, –U.S.–, 129 S. Ct. 1937, 1948 (2009).2 In Iqbal,

the Supreme Court had before it a Bivens3 action brought by a Muslim inmate who

alleged he had been unconstitutionally mistreated because of policies put in place

by various government officials. Recognizing that vicarious liability is

inapplicable to both Bivens and § 1983 claims, the Court established “a plaintiff

must plead that each Government-official defendant, through the official’s own


       1
        We must examine Plaintiffs’ Amended Complaint because there is no pretrial order in
the record before us.
       2
         The general rule is that “federal cases should be decided in accordance with the law
existing at the time of decision.” Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 608, 107 S.
Ct. 2022, 2025 (1987) (citation omitted). “That general rule includes application of rules
established by judicial decisions during the pendency of the case.” Jones v. Preuit & Mauldin,
876 F.2d 1480, 1483 (11th Cir. 1989) (citation omitted). We apply the general rule in deciding
whether the Constitution has been violated.
       3
        Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.
Ct. 1999 (1971).

                                                4
individual actions, has violated the Constitution.” Id. at 1948. In the equal

protection context, this means showing the supervisor, like the subordinate,

undertook a discriminatory action “because of, not merely in spite of, the action’s

adverse effects upon an identifiable group.” Id. at 1948 (internal quotation,

alteration, and citation omitted). Thus, a plaintiff must show a supervisor

possessed discriminatory intent in order to adequately state a claim for a violation

of her equal protection rights. See T.E. v. Grindle, 599 F.3d 583, 588 (7th Cir.

2010) (applying Iqbal).

      Iqbal was decided after the briefing was closed in the district court, but

before the district court entered its order. The district court’s order did not cite

Iqbal, which suggests to us it was not brought to the district court’s attention.

Under these circumstances, we think it appropriate to vacate the district court’s

order denying Payne’s motion for summary judgment and remand to the district

court in order to enable the district court to reconsider its summary judgment order

on the equal protection claim in light of Iqbal.4

      VACATED AND REMANDED.




      4
          This is an unlimited remand.

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