UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WANDA S. GAMACHE,
Plaintiff-Appellee,

v.

MICHAEL J. CAVANAUGH, in his
individual and official capacity;
                                                               No. 95-1829
MARILYN JOHNSON, in her individual
and official capacity; ROBERT B.
PERRY, in his individual and official
capacity,
Defendants-Appellants.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Matthew J. Perry, Senior District Judge.
(CA-94-2308-3)

Argued: January 31, 1996

Decided: April 12, 1996

Before WIDENER, LUTTIG, and MOTZ, Circuit Judges.

_________________________________________________________________

Reversed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Carl Norman Lundberg, Chief Legal Counsel, SOUTH
CAROLINA DEPARTMENT OF PROBATION, PAROLE & PAR-
DON SERVICES, Columbia, South Carolina, for Appellants. John
Allen O'Leary, O'LEARY ASSOCIATES, P.A., Columbia, South
Carolina, for Appellee. ON BRIEF: Laura P. Valtorta, CROMER &
MABRY, Columbia, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellants, Michael J. Cavanaugh, Marilyn Johnson, and Robert B.
Perry, appeal the district court's decision denying them Eleventh
Amendment immunity and qualified immunity on appellee's claim
that her termination violated the First Amendment. Because appel-
lants were entitled to Eleventh Amendment immunity on the claims
naming them in their official capacities and to qualified immunity for
the claims against them in their personal capacities, we reverse the
judgment of the district court and remand with instructions to enter
summary judgment in favor of appellants.

I.

Appellee, Wanda S. Gamache, was a probation and parole agent
employed by the South Carolina Department of Probation, Parole and
Pardon Services. On February 22, 1993, Gamache was riding in an
unmarked state vehicle on official business when, while stopped at a
traffic light, she was approached by a man who had been riding in
another vehicle also stopped at the light. The man, for unknown rea-
sons, pointed a pistol at Gamache. In response, Gamache displayed
her badge, causing the assailant to flee. Gamache pursued the vehicle,
and in the ensuing high speed chase she drove 70-75 miles per hour
in a 35 mile per hour zone without a siren or flashing lights. When
the other car finally stopped, Gamache drew her gun and ordered the
three occupants to lie face down on the ground until local law
enforcement arrived.

                    2
Following this incident, Gamache, on her own authority and with-
out approval of her supervisors, authorized the issuance of warrants
against two of the men with herself and the South Carolina Depart-
ment of Probation, Parole and Pardon Services as the prosecuting
authorities. Upon learning of these events, Gamache's supervisor,
Robert Perry, insisted that she dismiss the charges. Gamache refused
and soon thereafter was fired. Her letter of termination listed several
reasons for her discharge, including the unauthorized use of state
equipment, failure to comply with state regulations, willful violation
of laws, and gross misconduct. The letter specified that Gamache had
driven over twice the posted speed limit in a State vehicle, flashed her
badge, used her weapon and purported to act as a police officer
despite the fact that her authority extended only to parolees in her cus-
tody, and demonstrated a "lack of remorse" by refusing to withdraw
the warrant as requested by her supervisor. J.A. at 25.

After filing an unsuccessful administrative grievance, Gamache
filed the instant federal action against her supervisors, Cavanaugh,
Johnson, and Perry, alleging under 42 U.S.C. § 1983 a violation of
her First Amendment right to petition for redress and seeking both
actual and punitive damages. Appellants moved for summary judg-
ment on the basis of Eleventh Amendment immunity and qualified
immunity. The district court denied the motion for summary judg-
ment. This appeal followed.

II.

It is unclear whether or not the district court recognized that the
Eleventh Amendment provides state officials immunity from suit for
damages in federal court filed against them in their official capacity,
because the district court's opinion makes no reference to the claims
against the appellants in their official capacity. Under the Eleventh
Amendment, however, neither a State nor its officials in their official
capacity may be sued for damages in federal court without their con-
sent. Moreover, as the Supreme Court held in Will v. Michigan Dept.
of State Police, 491 U.S. 58 (1989), neither a state nor its officials in
their official capacities are "persons" under section 1983. Thus, the
appellants were entitled to summary judgment on all of Gamache's
claims naming them in their official capacity.

                     3
III.

With respect to the claims against appellants in their individual
capacities, the district court rejected appellants' defense of qualified
immunity, determining that appellants had "fail[ed] to submit suffi-
cient evidence to avail themselves of this affirmative defense." J.A.
at 95. However, the issue of whether appellants' actions violated
clearly established law is a question of law, and appellants do not
have to produce "evidence" in support of qualified immunity. Since
appellants violated no clearly established rights by discharging Gam-
ache for her failure to dismiss the warrant, the district court erred in
not granting summary judgment to the appellants on the basis of qual-
ified immunity.

Gamache points to a number of cases to support her claim that the
appellants violated her clearly established rights. However, the cases
cited by Gamache are general cases merely establishing a right of
access to the courts and that public employees cannot be fired for
exercising constitutional rights. These cases, of course, discuss the
constitutional right alleged to have been violated at too high a level
of generality. See Anderson v. Creighton , 483 U.S. 635, 639-40
(1987). As the Supreme Court has made clear, "[t]he contours of the
right [alleged to have been violated] must be sufficiently clear that a
reasonable official would understand that what he is doing violates
that right." Id. at 640; see also DiMeglio v. Haines, 45 F.3d 790, 803-
04 (4th Cir. 1995).

Appellants direct the court to two cases which hold that a sheriff's
deputy has no right to file a warrant in the face of policy or orders
to the contrary. These cases indicate that appellants' actions did not
violate clearly established law. The first, Funn v. Winston, 612 F.2d
880, 881 (4th Cir. 1980), concerned a deputy sheriff who filed a crim-
inal assault warrant against a prisoner who had assaulted him. As in
the instant case, the sheriff ordered the deputy to dismiss the warrant,
the deputy refused, and the sheriff then fired him. The court held that
the termination did not violate the deputy's constitutional rights
because the sheriff had a rational policy of not allowing deputies to
prosecute prisoners without his approval. The second, Berry v. Bailey,
726 F.2d 670 (11th Cir. 1984), cert. denied, 471 U.S. 1101 (1985),
held that a deputy's refusal to dismiss charges against certain

                    4
arrestees when requested to by the sheriff (allegedly for the improper
purpose of helping the sheriff's reelection chances) was not constitu-
tionally protected speech under the First Amendment and thus the
deputy's resultant termination was permissible.

Gamache attempts to distinguish Funn and Berry by arguing that
those are "sheriff" cases, whereas she works for the parole depart-
ment. This argument is unavailing because even were we to conclude
that those cases are distinguishable, appellants would still be entitled
to qualified immunity since Gamache's discharge for refusing her
supervisor's request to dismiss the warrants did not violate clearly
established law.*

Since their actions did not violate any clearly established constitu-
tional right, appellants were entitled to summary judgment on the
basis of qualified immunity.

CONCLUSION

For the reasons stated herein, we reverse the judgment of the dis-
trict court and remand with instructions to enter summary judgment
in favor of the appellants.

REVERSED
_________________________________________________________________
*Moreover, as the termination letter makes clear, Gamache committed
a number of acts which independently justify the termination of her
employment. See J.A. at 24-26, 75.

                     5
