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                                                              [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 15-15507
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 1:14-cv-02284-CAP


KENNETH COONS,

                                                                Plaintiff-Appellant,

                                       versus

GWINNETT COUNTY,
WARDEN DAVID PEEK,
individually, as well as in His Official Capacity
as a Gwinnett County Employee,

                                                             Defendants-Appellees,

JOHN DOES 1-3,

                                                                         Defendant.

                           ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                         ________________________

                                   (July 27, 2016)
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Before TJOFLAT, ROSENBAUM, and JILL PRYOR, Circuit Judges.

PER CURIAM:

      In this case, Plaintiff-Appellant Kenneth Coons claims that he was

unlawfully detained by Defendants-Appellees Gwinnett County and Warden David

Peek for nearly ten months after he was supposed to be released, violating his

constitutional rights and state law. The district court granted summary judgment to

the defendants on all claims. Coons appeals, arguing that the County is liable for

maintaining a policy or custom that caused his unlawful detention, and that Peek is

individually liable because he was not entitled to either qualified immunity under

federal law or official immunity under state law. After careful review, we affirm

the judgment in favor of the defendants.

                                  I. Background

      On June 11, 2004, Coons pled guilty to theft by taking in Georgia state

court. He was sentenced to a total term of ten years of probation, with the “first 5

years to be served on work release until restitution is paid” and the remainder of

the sentence to be served on probation. If Coons paid restitution before five years

passed, he would be relieved of his work-release obligation at that time. Otherwise

he would have to stay in work release for the full five years.

      The work-release program is basically part-time incarceration. The program

allows inmates to maintain regular employment outside of custody while serving


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their non-working time in custody. Failure to abide by the terms and conditions of

the program, including failure to return to custody at the designated time, may

result in termination from the program and transfer to full-time incarceration.

Georgia law also makes it a felony for a person, having been convicted of a felony,

to fail to return to custody after having been released on the condition that he or

she will return. See O.C.G.A. § 16-10-52(a)(5), (b)(1).

         On April 14, 2005, Gwinnett County Superior Court Judge Ronnie Batchelor

issued an order releasing Coons from work release for two days so that he could

attend his grandmother’s funeral. Coons failed to return by the deadline set in

Judge Batchelor’s order, however, leading the state to charge Coons with escape,

O.C.G.A. § 16-10-52. Judge Batchelor issued a warrant for Coons’s arrest on

April 25, 2005, but Coons was not arrested until February 2012, nearly seven years

later.

         In April 2012 the state petitioned to revoke Coons’s probation based on his

escape.     At a probation-revocation hearing, Judge Batchelor partially revoked

Coons’s probation and ordered him to serve ten months in custody, with credit for

time served since his arrest and “2 for 1 credit.” With these credits, Coons’s ten-

month revocation sentence was set to expire on July 14, 2012. Judge Batchelor

further ordered, “Upon his release, [Coons] is to comply with all the remaining

conditions of his probated sentence, including the restitution.” In Coons’s view,


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Judge Batchelor intended that he be released on July 14, 2012, to serve the

remainder of his sentence on regular probation.

      However, on July 13, 2012, one day before the end of his revocation

sentence, Coons was transferred back to the custody of the work-release program

and served with a disciplinary report charging him with escape. That same day,

the escape charge was investigated, and, after a disciplinary hearing, a disciplinary

hearing officer found Coons guilty of escape and recommended that he be removed

from the work-release program—and incarcerated full-time—for the remainder of

his sentence. Per Gwinnett County Department of Corrections (“DOC”) policies,

the recommendation of the disciplinary hearing officer was submitted to Defendant

Peek, Warden of the DOC at the time, who was authorized to approve, disapprove,

or modify the disciplinary hearing officer’s findings and recommendations. On

July 16, 2012, Peek approved the recommendation to remove Coons from the work

release program and to incarcerate him full-time.

      Coons remained incarcerated from July 13, 2012, until his release on May

17, 2013. During that time, Coons wrote Peek on numerous occasions explaining

that he was supposed to be released on July 14, 2012, to continue with probation.

Coons also filed two pro se motions to modify his sentence, in November and

December 2012, respectively, which Judge Batchelor denied. Coons eventually

obtained legal counsel, who filed a motion to modify the terms of the probation


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revocation sentence on May 10, 2013. On May 17, 2013, Judge Batchelor granted

the motion and ordered Coons released from custody. Coons served the remainder

of his ten-year sentence, which ended in June 2014, on probation.

       In July 2014, Coons filed this lawsuit against Peek and Gwinnett County.

Invoking 42 U.S.C. §§ 1983, 1985, and 1986, and Georgia state law, Coons alleged

that the defendants violated his rights to due process, to be free from forced

servitude, and to be free from cruel and unusual punishment. The defendants

removed the complaint to the United States District Court for the Northern District

of Georgia and later moved for summary judgment. Peek asserted that he was

shielded from the individual-capacity federal claims by the doctrine of qualified

immunity and from the individual-capacity state claims by the Georgia doctrine of

official immunity. The district court granted summary judgment to the defendants

on all claims. Coons now brings this appeal, challenging the disposition of his

§ 1983 claims against Gwinnett County and his § 1983 and state claims against

Peek in his individual capacity. 1




       1
          Coons has abandoned his other claims, including claims under §§ 1985 and 1986, state
claims against Gwinnett County, claims against Peek in his official capacity, and any claims
against unnamed John Does, by failing to raise them in his appellate brief. See Sapuppo v.
Allstate Floridian Ins. Co., 739 F.3d 678, 680–82 (11th Cir. 2014).
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                              II. Standard of Review

      We review de novo a district court’s grant of summary judgment, applying

the same legal standards that governed the district court. Bradley v. Franklin

Collection Serv., Inc., 739 F.3d 606, 608 (11th Cir. 2014). We consider the record

and draw all reasonable inferences in the light most favorable to Coons, the non-

moving party. See id. Summary judgment is appropriate when “there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). We may affirm the district court’s grant of

summary judgment on any adequate ground supported by the record, even if it is

not one on which the district court relied. Feliciano v. City of Miami Beach, 707

F.3d 1244, 1252 (11th Cir. 2013).

                                 III. Discussion

      Coons’s essential contention is that he was unlawfully detained for a longer

period than authorized by the “plain wording of multiple judicial orders.” More

precisely, he asserts that he was entitled to be released the date his revocation

sentence ended on July 14, 2012, ten months before his actual release in May 2013.

According to Coons, the work-release portion of his sentence expired after five

years (in 2009), because he was sentenced to serve only the “first” five years on

work release, and those years had passed because his sentence had not tolled




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despite his escape.2 As a result, Coons claims, work release was not one of the

“remaining conditions of his probated sentence” with which he needed to comply

“upon release” from his revocation sentence.

       Given the differing standards applicable to Coons’s federal and state claims,

we separate our discussion into two parts.                  First, we conclude that summary

judgment was appropriate on Coons’s federal claims: Gwinnett County did not

have a policy or custom that could subject it to § 1983 liability; and Peek is entitled

to qualified immunity. Second, we hold that Peek is entitled to official immunity

under Georgia law because his actions were discretionary in nature and there is no

evidence he acted with actual malice.

       A.      42 U.S.C. § 1983 Claims against Gwinnett County

       Coons contends that Gwinnett County is liable for his allegedly unlawful

detention because it had a policy or custom of holding inmates longer than

judicially authorized. To hold a local government liable under § 1983, the plaintiff

must identify a “policy” or “custom” that caused the alleged constitutional

violations. McDowell v. Brown, 392 F.3d 1283, 1290 (11th Cir. 2004). For a

plaintiff to demonstrate such a policy or custom, “it is generally necessary to show

a persistent and wide-spread practice.”               Id.    “Proof of a single incident of
       2
          The defendants agree that Coons’s sentence did not toll for the seven-year period he
was outside of custody after his escape. Had Coons’s sentence tolled, the period he was outside
of custody would not have counted towards satisfying his ten-year sentence. While the relevant
statute authorizes tolling of a probated sentence in the event of escape, the steps necessary to toll
a sentence were not taken in this case. See O.C.G.A. § 42-8-36.
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unconstitutional activity is not sufficient to impose liability against a

municipality,” “even when the incident involves several employees of the

municipality.” Craig v. Floyd Cty., Ga., 643 F.3d 1306, 1310–11 (11th Cir. 2011)

(internal quotation marks omitted).

      Here, Coons has not shown that the alleged constitutional violations arose

out of a policy or custom. For example, he has not produced evidence of another

inmate in Gwinnett County detained beyond the date authorized by a court order.

The only evidence on which Coons relies is his own experience. But this isolated

incident is insufficient to impose liability on Gwinnett County. See id. at 1312

(“Craig relies on his own experience, which is, at most, proof of a single incident

of unconstitutional activity . . . [that] is not sufficient to impose liability under

§ 1983.” (alteration adopted; citation and internal quotation marks omitted));

McDowell, 392 F.3d at 1290–91. Consequently, the district court properly granted

summary judgment to Gwinnett County.

      B.     42 U.S.C. § 1983 Claims against Peek

      Peek invoked the defense of qualified immunity for the federal claims

against him in his individual capacity, and the district court found that he was

entitled to it.   Qualified immunity protects government officials engaged in

discretionary functions and sued in their individual capacities unless they violate

“clearly established federal statutory or constitutional rights of which a reasonable


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person would have known.” Keating v. City of Miami, 598 F.3d 753, 762 (11th

Cir. 2013) (brackets and internal quotation marks omitted).

      To raise the defense of qualified immunity, the official must first show that

he was acting within the scope of his discretionary authority. Maddox v. Stephens,

727 F.3d 1109, 1120 (11th Cir. 2013).            We have “interpreted the term

‘discretionary authority’ to include all actions of a governmental official that (1)

‘were undertaken pursuant to the performance of his duties,’ and (2) were ‘within

the scope of his authority.’” Jordan v. Doe, 38 F.3d 1559, 1566 (11th Cir. 1994)

(quoting Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir. 1988)).

      Coons contends that Peek could not have been acting within the scope of his

authority because Peek had no authority over Coons as of July 14, 2012, at the

latest, the date Coons’s revocation sentence ended and two days before Peek

revoked his work-release status. However, “[t]he inquiry is not whether it was

within the defendant’s authority to commit the allegedly illegal act. Framed that

way, the inquiry is no more than an ‘untenable’ tautology.” Harbert Int’l, Inc. v.

James, 157 F.3d 1271, 1282 (11th Cir. 1998). Instead, we ask “whether the act

complained of, if done for a proper purpose, would be within, or reasonably related

to, the outer perimeter of an official’s discretionary duties. The scope of immunity

should be determined by the relation of the [injury] complained of to the duties

entrusted to the officer.” Id. (quotation marks omitted).


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      Here, Peek has met his burden of showing that he was acting with the scope

of his discretionary authority. As Warden of the DOC, Peek was authorized to

approve, reject, or modify the recommendations of disciplinary hearing officers.

Furthermore, he was authorized by statute to revoke work-release status “for any

reason for which work release status would otherwise be revoked,” O.C.G.A. § 17-

10-1(g)(2), such as escape from custody. Thus, Peek had the authority to revoke

work release for escape and to transfer an inmate to full-time incarceration.

Accordingly, Peek’s actions were “carried out in the performance of his normal job

duties and were within the authority delegated to him by his employer.” See Rich,

841 F.2d at 1564.

      So the burden shifts to Coons to show that Peek is not entitled to qualified

immunity. See Maddox, 727 F.3d at 1120. To meet that burden, Coons must

demonstrate both that Peek violated a constitutional right and that the right was

“clearly established . . . in light of the specific context of the case, not as a broad

general proposition[,]” at the time of the alleged violation. Saucier v. Katz, 533

U.S. 194, 201, 121 S. Ct. 2151, 2156 (2001). We may decide these issues in either

order, but the plaintiff must make both showings to survive a qualified-immunity

defense. Maddox, 727 F.3d at 1120–21.

      With regard to the constitutional violations at issue, this Circuit recognizes

that the Due Process Clause of the Fourteenth Amendment guarantees to


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individuals the right to be free from excessive continued detention after a jail or

prison ceases to have a legal right to detain the individual. See Cannon v. Macon

Cty., 1 F.3d 1558, 1562–63 (11th Cir. 1993); Douthit v. Jones, 619 F.2d 527, 532

(5th Cir. 1980).3 Coons also alleged that his continued detention violated the

Eighth and Thirteenth Amendments, but he has identified no precedent recognizing

these theories of alleged constitutional violations.

       In any case, we conclude that, even if constitutional violations occurred,

Coons has not shown that Peek violated clearly established law in the specific

context of this case. 4 “The touchstone of qualified immunity is notice[,]” or fair

warning.     Moore v. Pederson, 806 F.3d 1036, 1046 (11th Cir. 2015).                        A

constitutional right is not clearly established, and an official is entitled to qualified

immunity, unless “a reasonable official would understand that his conduct violates

that right.” Id. “[T]his inquiry must be undertaken in light of the specific context

of the case, not as a broad general proposition. “ Coffin v. Brandau, 642 F.3d 999,

1013 (11th Cir. 2011) (en banc) (internal quotation marks omitted).

       Here, Coons has not shown that Peek violated clearly established law

because a reasonable official would not have understood, in the specific context of

this case, that continuing to detain Coons violated his constitutional rights. In

       3
         This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,
1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
       4
         Our analysis of these claims differs from that of the district court, though we do not
mean to imply that the district court was incorrect. See Feliciano, 707 F.3d at 1252.
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practical terms, Coons has made no showing that he was clearly entitled to be

released on July 14, 2012.

      As an initial matter, Coons has not identified any materially similar

precedent on point that would have alerted Peek that his actions were unlawful.

Instead, Coons relies on the wording of his original sentence and of Judge

Batchelor’s revocation order, which together, he asserts, clearly establish his right

to be released to regular probation on July 14, 2012. We cannot agree, even with

the benefit of hindsight.

      The relevant judicial orders are ambiguous as to whether work release

remained a condition of Coons’s probated sentence following July 14, 2012. The

judge who imposed Coons’s original sentence appears to have placed a five-year

limit on Coons’s work release and may have intended for Coons to serve the “first”

five years on work release, but the sentence also contemplates that Coons would

“complete” five years or pay restitution, not simply pass the time in some way.

The original sentence simply does not account for the possibility that Coons would

escape but the sentence would not be tolled. Nor do Judge Batchelor’s actions at

the probation-revocation hearing clarify matters. Judge Batchelor ordered Coons

to comply with “all remaining conditions of his probated sentence” upon his

release from the revocation sentence, but work release was not discussed at the

probation-revocation hearing, so there is little to indicate whether Judge Batchelor


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thought that work release was such a remaining condition or intended Coons to

return to work release. 5

       Faced with judicial orders that provide little guidance, and with no precedent

on point, a reasonable official would not have known that Coons was not subject to

work release and that revoking his work-release status based on his prior escape

was unlawful. See Moore, 806 F.3d at 1046. When Coons was transferred back to

the work release program in July 2012, he had not complied with the conditions of

his original sentence:      He had not completed five years in the work-release

program or paid restitution in full. Instead, he spent ten months in the work-

release program before escaping for the next seven years. In light of these facts, it

would have been reasonable for an official in Peek’s place to conclude that work

release was a “remaining condition” of his probated sentence with which Coons

needed to comply. And if Coons was subject to work release, revocation of his

work-release status was warranted for his having escaped over seven years earlier.

See O.C.G.A. § 17-10-1(g)(2).

       Although Coons, after his work-status had been revoked, protested to Peek

that he was entitled to be released earlier, Coons’s protests were based on an

interpretation of the same orders we have analyzed above and found ambiguous

       5
         Judge Batchelor has submitted an affidavit for this case stating that it was not his
intention to relieve Coons from his work-release obligations. The fact that Judge Batchelor
denied Coons’s pro se motions in November and December 2012 supports that statement, though
the judge’s later grant of Coons’s counseled motion does not.
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with respect to Coons’s work-release obligation.6 Thus, Coons’s protests do not

call into question the reasonableness of Peek’s actions.

       In short, Peek is entitled to qualified immunity because a reasonable official

could “have believed his or her conduct to be lawful in light of clearly established

law and the information possessed by the official at the time the conduct

occurred.” See Hardin v. Hayes, 957 F.2d 845, 848 (11th Cir. 1992). Coons has

not identified any precedent or evidence that would have put Peek on notice that

what he was doing violated Coons’s constitutional rights. See Moore, 806 F.3d at

1046. Therefore, the district court properly granted summary judgment on the

§ 1983 claims against Peek in his individual capacity.

       C.     State Law Claims

       Finally, Coons argues that the district court erred in granting official

immunity to Peek on the state-law claims against him. Under the doctrine of

official immunity, state officers and employees are “immune from individual

liability for discretionary acts undertaken in the course of their duties and

performed without willfulness, malice, or corruption.” Reed v. DeKalb Cty., 589

S.E.2d 584, 587 (Ga. Ct. App. 2003). So, absent actual malice, county officials are

entitled to official immunity for negligently performed discretionary acts within
       6
           Nor would further investigation necessarily have clarified matters. The defendants
submitted evidence showing that a classification officer with the DOC attempted to obtain
clarification from Judge Batchelor regarding the terms of his order on July 17, 2012, and that,
after speaking with Judge Batchelor’s secretary, who spoke with the judge, the classification
officer determined that Coons was still subject to work release.
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the scope of their authority, but they may be held personally liable for negligently

performed ministerial acts. Roper v. Greenway, 751 S.E.2d 351, 352 (Ga. 2013);

Parrish v. Akins, 504 S.E.2d 276, 278–79 (Ga. Ct. App. 1998).

       Under Georgia law, “[a] discretionary act . . . calls for the exercise of

personal deliberation and judgment, which in turn entails examining the facts,

reaching reasoned conclusions, and acting on them in a way not specifically

directed.”     Roper, 751 S.E.2d at 354 (quotation marks omitted; emphasis in

original). A ministerial act, by contrast, is one done in the execution of a simple,

specific duty. Id. at 353. “A ministerial duty may be established by evidence such

as a written policy, an unwritten policy, a supervisor’s specific directive, or a

statute.” Id. (citations omitted). Regardless of the source of the duty, however, the

procedures or instructions establishing the duty must be “clear, definite, and

certain.”    Id.   “Without evidence of a policy establishing a specific duty,” a

defendant’s actions cannot be considered to be in breach of a ministerial duty.

       Coons argues that official immunity does not apply because releasing him

pursuant to a court order was a ministerial duty. But Coons has not shown that

Peek had a “clear, definite, and certain” duty to release him on the date Coons

asserts.     As was have explained more fully above with regard to qualified

immunity, whether Coons was subject to work release upon the end of his

revocation sentence was ambiguous, and the decision to revoke Coons’s work-


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release status was one committed to Peek’s discretion and judgment. Thus, Coons

has not shown that Peek breached a ministerial duty. See id. Nor does the record

contain any evidence that Peek acted with actual malice or intent to injure. See id.

      In sum, Peek is shielded from Coons’s state-law claims by the doctrine of

official immunity, and the district court properly granted summary judgment on

these claims.

                                   IV. Conclusion

      For the reasons stated, the judgment of the district court in favor of the

defendants is AFFIRMED.




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