              Case: 12-14534    Date Filed: 09/10/2013   Page: 1 of 14


                                                            [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 12-14534
                           ________________________

                       D.C. Docket No. 1:09-cv-03630-SCJ

JANICE WILLIAMS,
DAVID NAVE, SR.,
JANICE WILLIAMS,
as mother of the David Nave, Jr. and
next friend of the Estate of David Nave Jr.,

                                                              Plaintiffs - Appellees
                                                                 Cross Appellants,

                                       versus

ROLAND K. BOEHRER,
KIRBY G. THREAT,

                                                           Defendants - Appellants
                                                                 Cross Appellees,

KEMUEL A. (KEM) KIMROUGH, SR.,
in his official capacity,
JOHN DOES 1-5,

                                                                        Defendants
                                                                   Cross Appellees.
               Case: 12-14534       Date Filed: 09/10/2013      Page: 2 of 14


                              ________________________

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

                                   (September 10, 2013)

Before PRYOR and HILL, Circuit Judges, and HALL,* District Judge.

PER CURIAM:

       This appeal requires us to decide whether we have jurisdiction over the

interlocutory appeal of the denial of official immunity under the Georgia

Constitution to two law enforcement officers and whether those officers who shot

and killed a fleeing suspected felon armed with a knife are entitled to official

immunity. David Nave Jr. started a fire in an apartment building, attempted to rob

a woman at knife point, and destroyed property in a convenience store. Lieutenant

Roland Boehrer and Deputy Kirby Threat of the Sheriff’s Office of Clayton

County responded to the fire, but before they reached the fire, a man flagged down

Boehrer and told him that Nave was his suspect. When Boehrer approached him,

Nave drew a knife and ran away from Boehrer. As Boehrer and Threat chased

Nave, Boehrer tried to subdue him with a taser, but the taser did not connect

properly and failed to subdue him. Threat then shot and killed Nave. Nave’s

mother, Janice Williams, and father, David Nave Sr., sued Boehrer and Threat for

*
 Honorable James Randal Hall, United States District Judge for the Southern District of
Georgia, sitting by designation.
                                               2
                Case: 12-14534   Date Filed: 09/10/2013   Page: 3 of 14


wrongful death under Georgia law. Boehrer and Threat moved for summary

judgment and argued that they were immune from suit under the Georgia

Constitution. The district court denied the motion for summary judgment. We

reverse and render a judgment in favor of Boehrer and Threat.

                                   II. BACKGROUND

       David Nave Jr. started a fire in his bedroom in an apartment that he shared

with his mother, Janice Williams. Williams tried to call 911 to report the fire and

inform the dispatcher that Nave might still be inside, but before she could complete

the call, several neighbors told her that they had already called 911 and reported

the fire.

       While Williams attempted to call 911 and waited on the emergency

responders, Nave took a knife from the apartment and walked to a nearby

convenience store. Nave approached a woman in the parking lot of the

convenience store with the knife and demanded that she give him money. The

woman fled to her van, and Nave yelled, “Give me your money! If not, I’m going

to kill you.”

       Nave then entered the convenience store and threw wine bottles at the

cashier’s window. Nave approached an owner of the store aggressively and

shouted at him. He then threw a glass container of sugar to the floor. While Nave

destroyed property in the store, the owners of the store locked him inside. Nave

                                          3
              Case: 12-14534    Date Filed: 09/10/2013    Page: 4 of 14


continued to throw wine bottles. One of the wine bottles broke a window next to

the front door of the store, and Nave left the store through that window. Nave then

broke the windshield and slashed the tires of the store owners’ car.

      Lieutenant Roland Boehrer and Deputy Kirby Threat of the Sheriff’s Office

of Clayton County were on duty when Nave started the fire and then went on a

rampage at the convenience store. Boehrer and Threat were having their cars

washed near the fire and Nave’s rampage. Threat heard an emergency call about

the fire and told Boehrer that they were not far down the road from the fire.

Boehrer had completed the cleaning of his vehicle and proceeded first toward the

scene of the fire. When Boehrer reached the convenience store, a man in a white

van flagged him down. The man pointed to Nave and said something along the

lines of “He did all of this stuff here. That is your suspect. You need to go arrest

him.” Boehrer contacted the dispatcher and attempted to confirm that Nave

matched the description of the suspect. The white van pulled behind Boehrer’s

vehicle, and the driver again pointed and said that Nave was the suspect. Nave

yelled an expletive and spit on the passenger side of the van.

      Boehrer approached Nave, and Nave pulled out a knife. Boehrer ordered

Nave to drop the knife, drew his taser, and pointed it at Nave. Instead of

complying with Boehrer’s command, Nave fled. Boehrer informed the dispatch

operator that Nave had a knife and chased him into the parking lot of a nearby

                                          4
              Case: 12-14534     Date Filed: 09/10/2013    Page: 5 of 14


abandoned convenience store. By then, Threat had arrived at the convenience

store, and he joined the pursuit of Nave. Boehrer warned Threat that Nave had a

knife. The officers yelled at Nave to stop, but he continued to flee. At some point

in the pursuit, Threat drew his handgun.

      The officers testified that Nave turned around and began slashing the knife

at Threat. The officers also testified that Threat lost his footing when he tried to

retreat. Boehrer then fired his taser at Nave. Because only one prong connected to

Nave, the taser did not cause him to drop the knife or stop his attack.

      Threat then fired his handgun at Nave. Threat hit Nave once in the chest,

once in the elbow, and once in the back, and Nave fell to the ground. Threat

kicked the knife away, and Boehrer checked Nave for a pulse and asked the

dispatcher to send an ambulance. Nave died in the parking lot.

        Monique Anderson, who lived in a nearby apartment, testified that she

watched from the balcony of her apartment as the officers chased Nave.

Anderson testified that Nave tried to run away from Boehrer and continued to run

when Boehrer ordered him to stop. She testified that she then heard four shots and

saw Threat with his gun out.

      The Georgia Bureau of Investigation prepared a report on the shooting of

Nave. The report stated that the taser prong attached to the back of Nave’s

clothing. The report also stated that Nave was shot once to the torso from the

                                           5
              Case: 12-14534    Date Filed: 09/10/2013    Page: 6 of 14


back, once to the elbow from the back, and once to the chest from the front. More

blood was pooled around the wound to his torso from the back. A pathologist for

the Georgia Bureau of Investigation, Laura Darrisaw, testified that it was her

opinion, with a reasonable degree of medical certainty, that the shot to the torso

from the back struck Nave before the shot to his chest.

      Williams, as mother of Nave and next friend of Nave’s estate, and David

Nave Sr., as father of Nave, sued the Sheriff of Clayton County, Kemuel

Kimbrough Sr., as an official, and Boehrer and Threat, as individuals, in a Georgia

state court. Williams and Nave Sr. complained that the officers had violated

Nave’s right to be free from the use of excessive force under the Fourth

Amendment and right to be free from the deprivation of his life under the Fifth

Amendment. The complaint also stated a claim of wrongful death under Georgia

law against Boehrer and Threat. Kimbrough, Boehrer, and Threat removed the

complaint to the district court because it involved federal questions, and

Kimbrough filed a motion to dismiss the claims against him. Williams and Nave

Sr. then filed a motion to amend the complaint and asked the court to dismiss their

federal claims without prejudice. Williams and Nave Sr. also filed a motion to

remand on the ground that the defendants had failed to file all of the necessary

documents from the state court with the district court and because Williams and

Nave Sr. had asked that their claims that presented federal questions be dismissed.

                                          6
              Case: 12-14534      Date Filed: 09/10/2013   Page: 7 of 14


The district court granted Williams and Nave Sr.’s motion to amend their

complaint to omit their claims that presented federal questions, denied their motion

to remand, and concluded that, because all of the claims against Kimbrough had

been dismissed, his motion to dismiss was moot.

      Boehrer and Threat then moved for summary judgment and invoked official

immunity under the Georgia Constitution. The district court granted the motion for

summary judgment in part and denied the motion in part. The district court

concluded that Boehrer and Threat were entitled to summary judgment on the issue

whether they acted with actual malice under Georgia law because Williams and

Nave Sr. had conceded that they could not argue that the officers acted with actual

malice. But the district court also concluded that genuine issues of material fact

remained about whether Boehrer and Threat acted with the actual intent to injure

Nave because it was not clear from the record that the officers acted with the

justifiable intent of self-defense.

                          II. STANDARDS OF REVIEW

      “We review questions of subject matter jurisdiction de novo.” Belleri v.

United States, 712 F.3d 543, 547 (11th Cir. 2013) (quoting Yunker v. Allianceone

Receivables Mgmt., Inc., 701 F.3d 369, 372 n.2 (11th Cir. 2012)). We review a

grant of summary judgment de novo. Shuford v. Fidelity Nat’l Prop. & Cas. Ins.

Co., 508 F.3d 1337, 1341 (11th Cir. 2007).

                                           7
              Case: 12-14534      Date Filed: 09/10/2013   Page: 8 of 14


                                 III. DISCUSSION

      We divide our discussion in two parts. First, we explain that we have

jurisdiction to decide the appeal of the denial of official immunity for Boehrer and

Threat, but that we lack jurisdiction to review some of the issues cross-appealed by

Williams and Nave Sr. Second, we explain that Boehrer and Threat are entitled to

official immunity under Georgia law.

    A. We Have Jurisdiction To Review the Denial of Official Immunity Under
    Georgia Law, but We Lack Jurisdiction Over Some Issues Cross-appealed.

      We have jurisdiction to review the denial of official immunity under Georgia

law. We have explained that “[b]ecause sovereign immunity under Georgia law is

an immunity from suit, . . . we have jurisdiction over [a] district court’s order

denying summary judgment based on sovereign immunity under Georgia law.”

Griesel v. Hamlin, 963 F.2d 338, 341 (11th Cir. 1992). The immunity granted to

state officers by the Constitution of Georgia protects state officers from being

“subject to suit.” Ga. Const. Art. I, § 2, ¶ 9(d).

      Williams and Nave Sr. argue that we lack jurisdiction over this interlocutory

appeal because the district court concluded that several questions of fact remain,

but we disagree. The Supreme Court has explained “that immediate appeal from

the denial of summary judgment on a [federal] qualified immunity plea is available

when the appeal presents a ‘purely legal issue’” but that “instant appeal is not

available . . . when the district court determines that factual issues genuinely in
                                            8
              Case: 12-14534      Date Filed: 09/10/2013     Page: 9 of 14


dispute preclude summary adjudication.” Ortiz v. Jordan, __ U.S. __, 131 S. Ct.

884, 891 (2011) (quoting Johnson v. Jones, 515 U.S. 304, 313, 115 S. Ct. 2151,

2156 (1995)). But the conclusion of the district court that genuine issues of

material fact remained depended on the interpretation of Georgia law by the

district court, and Boehrer and Threat challenge those interpretations. We have

jurisdiction to decide the “purely legal issue” whether, on the undisputed facts in

this appeal, Boehrer and Threat are immune from suit under Georgia law. See id.

       Williams and Nave Sr. have cross-appealed several decisions of the district

court, but we lack jurisdiction over some of these issues. “[W]e have jurisdiction

of Plaintiffs’ cross-appeal [of a partial grant of summary judgment] only if it

properly falls within our pendent appellate jurisdiction.” Hudson v. Hall, 231 F.3d

1289, 1294 (11th Cir. 2000). “Under the pendent appellate jurisdiction doctrine we

may address [otherwise] nonappealable orders if they are inextricably intertwined

with an appealable decision or if review of the former decision [is] necessary to

ensure meaningful review of the latter.” Id. (alterations in original) (internal

quotation marks omitted). Williams and Nave Sr. cross-appeal five decisions of

the district court: (1) the decision that the failure to file all required pleadings after

removal of a case from state court did not deprive the district court of jurisdiction;

(2) the decision to allow Williams and Nave Sr. to amend their complaint to

dismiss their claims under federal law; (3) the decision to admit hearsay statements

                                             9
             Case: 12-14534     Date Filed: 09/10/2013    Page: 10 of 14


contained in the report of the Georgia Bureau of Investigation; (4) the decision that

Williams and Nave Sr. had conceded that they could not show actual malice; and

(5) the decision that Boehrer and Threat’s use of force was a discretionary act. But

we lack jurisdiction over the second and third issues. The dismissal of Williams

and Nave Sr.’s claims under federal law is not inextricably intertwined with the

merits of the state law immunity of Boehrer and Threat. And the alleged hearsay

statements about Nave’s attempt to rob a woman are not inextricably intertwined

with the legal questions of the immunity of Boehrer and Threat under Georgia law.

      Boehrer and Threat argue that we also lack jurisdiction to address whether

the failure to file all pleadings served on them in the state court deprived the

district court of jurisdiction, but we disagree. We must address the jurisdiction of

the district court to ensure that we meaningfully review the official immunity of

the officers. Hudson, 231 F.3d at 1293. When “federal jurisdiction cannot be

found, . . . the district court’s entry [or denial] of summary judgment [i]s a

nullity,” Whitt v. Sherman Int’l Corp., 147 F.3d 1325, 1333 (11th Cir. 1998), and

we would have no decision to review.

      The district court had jurisdiction over this matter, even though Boehrer and

Threat failed to file some of the documents that had been served on them in state

court. A defendant who removes a civil action from a state court “shall file in the

district court of the United States for the district and division within which such

                                          10
             Case: 12-14534     Date Filed: 09/10/2013    Page: 11 of 14


action is pending a notice of removal . . . together with a copy of all process,

pleadings, and orders served upon such defendant or defendants in such action.”

28 U.S.C. § 1446(a). We have explained that “the failure to include all state court

pleadings and process with the notice of removal is procedurally incorrect but is

not a jurisdictional defect,” Cook v. Randolph Cnty., Ga., 573 F.3d 1143, 1150

(11th Cir. 2009), and that “the failure to file papers required by the removal statute

may be remedied,” Usatorres v. Marina Mercante Nicaraguenses, S.A., 768 F.2d

1285, 1286 (11th Cir. 1985) (emphasis omitted). And, if a district court needs a

document that has not been filed by the defendants, “[i]t may require the removing

party to file with its clerk copies of all records and proceedings in such State court

or may cause the same to be brought before it by writ of certiorari issued to such

State court.” 28 U.S.C. § 1447(b).

B. Boehrer and Threat Are Immune from Suit Under the Constitution of Georgia.

      The Constitution of Georgia grants immunity to officers and employees of

government agencies. Ga. Const. Art. I, § 2, ¶ 9(d). An officer “may be subject to

suit and may be liable for injuries and damages caused by the negligent

performance of, or negligent failure to perform, their ministerial functions.” Id.

And an officer “may be liable for injuries and damages if they act with actual

malice or with actual intent to cause injury in the performance of their official

functions.” Id. An officer who does not negligently perform or fail to perform a

                                          11
             Case: 12-14534     Date Filed: 09/10/2013    Page: 12 of 14


ministerial function or act with actual malice or actual intent to cause injury in the

performance of a discretionary function “shall not be subject to suit or liability, and

no judgment shall be entered against them for the performance . . . of their official

functions.” Id.

      Boehrer and Threat performed a discretionary act when they used force to

subdue Nave. “A ministerial act is commonly one that is simple, absolute, and

definite, arising under conditions admitted or proved to exist, and requiring merely

the execution of a specific duty.” Murphy v. Bajjani, 647 S.E.2d 54, 58 (Ga.

2007). “A discretionary act, however, 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.” Id.

“The determination of whether an action is discretionary or ministerial depends on

the character of the specific actions complained of, not the general nature of the

job, and is to be made on a case-by-case basis.” McDowell v. Smith, 678 S.E.2d

922, 925 (Ga. 2009) (alteration, quotation marks, and citation omitted). The

Supreme Court of Georgia “ha[s] held that a law enforcement officer exercises

discretion . . . [when he] fir[es] a gun at a suspect.” Cameron v. Lang, 549 S.E.2d

341, 345–46 (Ga. 2001).

      Boehrer and Threat did not “act with actual malice or with actual intent to

cause injury” when they used force to subdue Nave. See Ga. Const. Art. I, § 2, ¶

                                          12
             Case: 12-14534      Date Filed: 09/10/2013   Page: 13 of 14


9(d). A law enforcement officer in Georgia is justified in using deadly force in

three circumstances that apply here:

      [A law enforcement officer] may use deadly force to apprehend a
      suspected felon only when the officer reasonably believes that the
      suspect possesses a deadly weapon or any object, device, or
      instrument which, when used offensively against a person, is likely to
      or actually does result in serious bodily injury; when the officer
      reasonably believes that the suspect poses an immediate threat of
      physical violence to the officer or others; or when there is probable
      cause to believe that the suspect has committed a crime involving the
      infliction or threatened infliction of serious physical harm.

Ga. Code Ann. § 17-4-20(b). Boehrer and Threat suspected that Nave had started a

fire in an apartment complex. Boehrer had seen Nave draw a knife, reported to

dispatch that Nave had a knife, and warned Threat that Nave had a knife. Boehrer

and Threat reasonably believed that Nave, a suspected felon, “possess[ed] a deadly

weapon.” Id. After the officers pursued him, Nave slashed a knife at Threat,

posing an “immediate threat of physical violence to the officer.” Id.; A bystander

twice identified Nave as the suspect. Nave then yelled and spit on the bystander’s

van, pulled out a knife when approached by Boehrer, and fled. Boehrer and Threat

had “probable cause to believe that [Nave] ha[d] committed a crime involving the

infliction or threatened infliction of serious physical harm.” Id. Boehrer and

Threat were justified in their use of force.




                                          13
            Case: 12-14534     Date Filed: 09/10/2013   Page: 14 of 14


                               IV. CONCLUSION

      We REVERSE the denial of official immunity and RENDER a judgment in

favor of Boehrer and Threat.




                                        14
