              Case: 13-13631     Date Filed: 06/30/2014   Page: 1 of 6


                                                             [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 13-13631
                           ________________________

                     D.C. Docket No. 5:12-cv-00341-RS-CJK


RICHARD LEE MULLINAX,

                                                               Plaintiff - Appellee,

                                        versus

FRANK MCKEITHEN,
Individually and in his official capacity
as sheriff of Bay County, Florida,
DOUGLAS SMITH,
Individually,

                                                             Defendants – Appellants.




                         ___________________________

                    Appeal from the United States District Court
                        for the Northern District of Florida
                        ____________________________

                                 (June 30, 2014)
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Before WILSON and JORDAN, Circuit Judges, and ROTHSTEIN, * District

Judge.

PER CURIAM:

      Bay County Sheriff Frank McKeithen and Bay County Deputy Sheriff

Douglas Smith appeal the district court’s summary judgment order denying them

qualified immunity for their alleged violation of Richard Mullinax’s Fourth

Amendment rights. Having carefully reviewed the parties’ briefs, and with the

benefit of oral argument, we affirm.

                                           I

      We write only for the parties, and presume their knowledge of the

underlying record. We therefore summarize only what is necessary to explain our

decision.

      The pertinent facts, viewed in the light most favorable to Mr. Mullinax, are

as follows.

      Mr. Mullinax pled no contest to violating the terms of his probation,

imposed for a prior state conviction. As part of a plea agreement with the state, he

negotiated a 60-day furlough before he would start to serve an 18-month sentence

for the violation. The state trial judge accepted Mr. Mullinax’s plea and, pursuant

to the agreement, continued sentencing for 60 days.

*
 Honorable Barbara J. Rothstein, United States District Judge for the Western District of
Washington, sitting by designation.


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      Two days after the plea hearing, Sheriff McKeithen contacted the trial judge

in order to rescind Mr. Mullinax’s furlough. The judge, however, referred Sheriff

McKeithen to the attorneys of record in the case, including Assistant State

Attorney Megan Ford.      Sheriff McKeithen testified that either he or another

member of the Bay County Sheriff’s Office then contacted Ms. Ford to pursue a

revocation of Mr. Mullinax’s furlough. See D.E. 57-9 at 10.

      At around that same time, Deputy Smith was ordered by a supervisor to find

and retrieve Mr. Mullinax.     See D.E. 64-3 at 14.      Deputy Smith found Mr.

Mullinax and ordered him into an unmarked police vehicle.               Although Mr.

Mullinax was allowed to sit in the front passenger seat, with his hands unrestrained

by handcuffs, he nonetheless believed that he was under arrest. See D.E. 64-1 at ¶

22. According to Mr. Mullinax, he had previously been arrested under similar

conditions. See id. Deputy Smith then drove Mr. Mullinax to the Bay County

Sheriff’s Office and locked him in a holding room. See id. 64-1 at ¶ 26. There Mr.

Mullinax, believing he was not free to leave, remained locked up for roughly three

hours in violation of the trial judge’s furlough order and without probable cause

that he had committed another offense. See id.

      During the period in which Mr. Mullinax was in custody, Ms. Ford filed an

emergency motion to revoke Mr. Mullinax’s furlough. Once the motion was

granted, Mr. Mullinax was transferred from the holding room to the Bay County



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Jail and was later sentenced to 18 months’ imprisonment for his probation

violation. See D.E. 75 at 6.

       Mr. Mullinax brought suit pursuant to 42 U.S.C. § 1983 against Sheriff

McKeithen, individually and in his official capacity, and Deputy Smith,

individually, for violating his Fourth Amendment rights against unreasonable

arrest and detention. 1      The district court denied the defendants’ motion for

summary judgment with respect to the Fourth Amendment claims. The defendants

now appeal, arguing that they are entitled to qualified immunity.

                                              II

       We conduct plenary review of the district court’s summary judgment order,

viewing the facts in the light most favorable to Mr. Mullinax. See Gennusa v.

Canova, 748 F.3d 1103, 1108 (11th Cir. 2014). Summary judgment is appropriate

if there are no genuine issues of material fact and a party is entitled to judgment as

a matter of law. See Fed. R. Civ. P. 56(a); Bradley v. Franklin Collection Serv.,

Inc., 739 F.3d 606, 608 (11th Cir. 2014). “The doctrine of qualified immunity

protects government officials from liability for civil damages insofar as their

conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Morris v. Town of Lexington,


       1
          Mr. Mullinax’s complaint also included a § 1983 claim of deliberate indifference to a
serious medical need, as well as state law claims for negligence and false arrest. Those claims
are not at issue in this appeal.


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Alabama, 748 F.3d 1316, 1321 (11th Cir. 2014) (citation and internal quotation

marks omitted).

      Substantially for the reasons set forth in the district court’s order, we affirm

the denial of summary judgment. First, although the defendants argued in the

district court that qualified immunity was appropriate on Mr. Mullinax’s Fourth

Amendment claim because (1) no clearly established Fourth Amendment rights

were violated, and (2) there was probable cause or arguable probable cause for Mr.

Mullinax’s arrest and detention, they have abandoned those arguments on appeal

by not raising them in their brief. See, e.g., Access Now, Inc. v. Southwest Airlines

Co., 385 F.3d 1324, 1330 (11th Cir. 2004); Allstate Ins. Co. v. Swann, 27 F.3d

1539, 1542 (11th Cir. 1994). Second, contrary to the defendants’ assertion, the

evidence, viewed in the light most favorable to Mr. Mullinax, permits a reasonable

jury to conclude that Sheriff McKeithen was personally involved in, ordered, or

ratified Mr. Mullinax’s arrest and detention.

      The defendants contend that they are entitled to qualified immunity because

Mr. Mullinax’s claim should have been analyzed under the Due Process Clause,

and not the Fourth Amendment, and there was no violation of Mr. Mullinax’s

clearly established rights under the Due Process Clause. We decline to address

these arguments because they were never raised below. See, e.g., Access Now,




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Inc., 385 F.3d at 1331. The defendants made only Fourth Amendment arguments

in the district court. See D.E. 57 at 9-14, 18-21. 2

                                               III

       The district court’s summary judgment order is affirmed.

       AFFIRMED.




       2
          The defendants claim that their Due Process Clause arguments were properly raised in
their notice of supplemental authority, see D.E. 70, but we disagree. A review of that notice does
not suggest that the defendants meant to introduce a new legal theory in support of qualified
immunity, let alone abandon their Fourth Amendment arguments.


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