              Case: 13-14297     Date Filed: 01/13/2015   Page: 1 of 13


                                                                          [PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 13-14297
                              Non-Argument Calendar
                            ________________________

                        D.C. Docket No. 7:13-cv-00028-HL


FELICIA PELLITTERI,

                                                                   Plaintiff-Appellee,

                                        versus

SHERIFF CHRIS PRINE,
Individually and in his official capacity as Sheriff of
Lowndes County, GA,

                                                              Defendant-Appellant,

LOWNDES COUNTY SHERIFF’S OFFICE, et al.,

                                                                          Defendants.

                            ________________________

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

                                  (January 13, 2015)
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Before MARTIN, JULIE CARNES and BLACK, Circuit Judges.

MARTIN, Circuit Judge:

       Defendant Chris Prine, the Sheriff of Lowndes County, Georgia, appeals the

District Court’s denial of his motion to dismiss. On appeal, Sheriff Prine argues

that Plaintiff Felicia Pellitteri’s wrongful termination claims are barred by the

Eleventh Amendment. We agree. As a result, we reverse and remand for

proceedings consistent with this opinion.

                                   I.      BACKGROUND 1

       Ms. Pellitteri is a former deputy sheriff in the Lowndes County Sheriff’s

Office. After injuring her knee during the course of her duties, Ms. Pellitteri

requested that she be placed on temporary light duty. According to Ms. Pellitteri,

this was an accommodation that was routinely granted to other deputies who

suffered on-the-job injuries. However, Ms. Pellitteri’s request was denied, and she

was eventually fired.

       In March 2013, Ms. Pellitteri filed a complaint in federal district court

against Lowndes County, the Lowndes County Sheriff’s Office, and Sheriff Prine

(in his individual capacity and official capacity as Sheriff of Lowndes County). In

her complaint, Ms. Pellitteri alleged that the defendants violated her rights under

1
 We present the facts as alleged in Ms. Pelitteri’s complaint. At this point in the litigation, we
must assume the facts set forth in her complaint are true. See Anza v. Ideal Steel Supply Corp.,
547 U.S. 451, 453, 126 S. Ct. 1991, 1994 (2006) (stating that on a motion to dismiss, the court
must “accept as true the factual allegations in the amended complaint”).
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42 U.S.C. § 1983, Title VII of the Civil Rights Act of 1964, and the Americans

with Disabilities Act (ADA), 42 U.S.C. §§ 12111, 12112.

      Sheriff Prine then filed a motion to dismiss in which he argued that

Ms. Pellitteri’s § 1983 and ADA claims against him in his official capacity were

barred by the Eleventh Amendment. The District Court denied Sheriff Prine’s

motion to dismiss, relying on this Court’s unpublished opinion in Keene v. Prine,

477 F. App’x 575 (11th Cir. 2012) (per curiam). Sheriff Prine now appeals.

                                II.    DISCUSSION

      Sheriff Prine’s primary argument on appeal is that the District Court erred

when it denied him immunity under the Eleventh Amendment of the United States

Constitution. According to Sheriff Prine, his law enforcement powers all derive

from the State of Georgia, and the State has exclusive authority and control over

the duties and affairs of his office. Thus, Sheriff Prine argues that he acts as an

“arm of the State” when exercising his power to hire and fire the deputies that

enforce the laws of Georgia on his behalf. We agree.

      This Court reviews de novo the District Court’s ruling regarding Eleventh

Amendment immunity. Abusaid v. Hillsborough Cnty. Bd. of Cnty. Comm’rs, 405

F.3d 1298, 1303 (11th Cir. 2005). “Eleventh Amendment immunity bars suits

brought in federal court when the State itself is sued and when an ‘arm of the

State’ is sued.” Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003) (en banc).


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“To receive Eleventh Amendment immunity, a defendant need not be labeled a

‘state officer’ or ‘state official,’ but instead need only be acting as an ‘arm of the

State,’ which includes agents and instrumentalities of the State.” Id.

      In making the “arm of the State” determination, we weigh the four factors

set forth in Manders: “(1) how state law defines the entity; (2) what degree of

control the State maintains over the entity; (3) where the entity derives its funds;

and (4) who is responsible for judgments against the entity.” Id. at 1309. Whether

a defendant was acting as an “arm of the State” must be “assessed in light of the

particular function in which the defendant was engaged when taking the actions

out of which liability is asserted to arise.” Id. at 1308; Shands Teaching Hosp. &

Clinics, Inc. v. Beech St. Corp., 208 F.3d 1308, 1311 (11th Cir. 2000) (“The

pertinent inquiry is not into the nature of [an entity’s] status in the abstract, but its

function or role in a particular context.”). As a result, we do not ask whether a

sheriff in Georgia acts as an “arm of the State” generally. Rather, we must

determine whether Sheriff Prine acts as an “arm of the State” when exercising his

power to hire and fire his deputies.

                       A.     How State Law Defines the Entity

      The first Manders factor—how state law defines the entity—points to

viewing the Sheriff’s Office as an “arm of the State.” In Manders, we

acknowledged that sheriffs in Georgia are elected by county voters and are labeled


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“county officers” by the Georgia Constitution. 338 F.3d at 1312 (citing Ga. Const.

art. IX, § 1, ¶ III(a)). After reviewing Georgia law, however, we found that the

“essential governmental nature” of each sheriff’s office in Georgia is to (1)

“enforce the law and preserve the peace on behalf of the sovereign State” and (2)

“to perform specific statutory duties, directly assigned by the State, in law

enforcement, in state courts, and in corrections.” Id. at 1319. As a result, we

concluded that sheriffs are only “county officers” in the sense that they have a

limited geographic jurisdiction. Id. at 1312. Indeed, “sheriffs in Georgia derive

their power and duties from the State, are controlled by the State, and counties

cannot, and do not, delegate any law enforcement power or duties to sheriffs.” Id.

at 1313; cf. O.C.G.A. 36-8-1(b) (allowing county governing bodies to create a

separate county police force).

      Beyond that, the Manders Court also observed that the Georgia Constitution

designed the sheriff’s office to enjoy a great deal of independence from the county

that it serves. 338 F.3d at 1311. While it is true that the State requires the county

to fund the sheriff’s budget, id., Georgia’s Constitution also expressly prevents

counties from controlling or affecting the sheriff’s office or the personnel thereof,

see Ga. Const. art. IX, § 2, ¶ I(c)(1) (providing that legislative power granted to

counties “shall not be construed to extend to . . . [a]ction affecting any elective

county office, the salaries thereof, or the personnel thereof, except the personnel


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subject to the jurisdiction of the county governing authority”). The Georgia

Constitution also grants the state legislature the exclusive authority to establish and

control a sheriff’s powers and duties. Ga. Const. art. IX, § 1, ¶ III(a)–(b). For this

reason, the Georgia Supreme Court has explained that sheriffs cannot be

considered county employees because they are subject only to the state legislature.

Bd. of Comm’rs of Randolph Cnty. v. Wilson, 396 S.E.2d 903, 903 (Ga. 1990)

(“The sheriff . . . is an elected, constitutional officer; he is subject to the charge of

the General Assembly and is not an employee of the county commission.”).

      Turning to the specific function at issue here—hiring and firing deputies—

the authority of sheriffs to employ personnel is also derived from the State. The

Georgia legislature has enacted laws giving sheriffs alone the power to hire their

deputies, independent of any influence from county governments. See O.C.G.A. §

15-16-23. Deputies are also considered employees of the sheriff and not the

County. Warren v.Walton, 202 S.E.2d 405, 409 (Ga. 1973) (recognizing that

“deputy sheriffs and deputy jailors are employees of the sheriff, whom the sheriffs

alone are entitled to appoint or discharge”) (quotation marks omitted); Brown v.

Jackson, 470 S.E.2d 786, 787 (Ga. Ct. App. 1996) (noting that deputy sheriffs

“were employees of the sheriff and not Peach County”). As a result, we conclude

that the first Manders factor weighs in favor of immunity.




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            B.     Degree of Control the State Maintains Over the Entity

      The second Manders factor is based on the “degree of control the State

maintains over the entity.” 338 F.3d at 1309. In Manders, for example, we were

asked to determine whether sheriffs in Georgia act as an “arm of the State” when

setting force policies at their jails and training and disciplining their deputies in

that regard. Id. at 1308–09. On this factor, we found it significant that the State

required sheriffs to attend annual trainings, and state law includes “corrections

practices” as one of the topics for that training. Id. at 1320 (quoting O.C.G.A. §

15-16-3). We also observed that the Governor has broad investigation and

suspension powers regarding any misconduct by sheriffs in the performance of

their duties. Id. at 1321 (citing O.C.G.A. § 15-16-26). In the same way, we

conclude that the State of Georgia exercises substantial control over a sheriff’s

personnel decisions, especially in the hiring and firing of deputies.

      Admittedly, we stated in Keene that “sheriffs are largely independent from

the State when they make personnel decisions.” 477 F. App’x at 578. We arrived

at this conclusion by observing that sheriffs alone have great discretion in choosing

who to appoint as their deputies. Id. Based in part on this autonomy—both from

the State and the county—we concluded that sheriffs do not act as an “arm of the

State” when exercising their discretion to hire and fire deputies. Id. at 579–80.




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      Upon further review, however, we believe that this conclusion in Keene was

mistaken on two fronts. First, the State of Georgia has in fact exercised a great

deal of control over the hiring and firing of deputy sheriffs, especially through the

certification process for peace officers. Georgia law requires that any person

employed as a peace officer—including deputy sheriffs—be at least 18 years of

age, be a citizen of the United States, have a high school diploma or its recognized

equivalent, and not have a significant criminal record. O.C.G.A. § 35-8-8(a)(1)–

(4). Any applicant for peace officer certification in Georgia must also be

fingerprinted and undergo a moral character investigation, as well as a physical,

emotional, and mental examination by a licensed physician or surgeon. Id. § 35-8-

8(a)(5)–(7). And even after meeting all of these requirements, a potential deputy

sheriff must still successfully complete an academy entrance examination

administered by the State before he or she can be certified to serve in a sheriff’s

office as a deputy. Id. § 35-8-8(a)(8). These threshold requirements for serving as

a peace officer in Georgia significantly limit a sheriff’s discretion when hiring

potential deputies.

      The Georgia legislature has also enacted laws creating a Peace Officer

Standards and Training Council to discipline peace officers—including deputy

sheriffs—for misconduct. Id. §§ 35-8-3, 35-8-7.1. This Council has the power to

administer reprimands and limit, suspend, or revoke a peace officer’s certification.


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Id. § 35-8-7.1(b)(1). Thus, the Council can functionally terminate a deputy

sheriff’s ability to perform his or her duties, which significantly restricts a sheriff’s

discretion in personnel matters.

      Finally, as we mentioned in Manders, Georgia’s governor also has broad

investigation and suspension powers to discipline a sheriff for misconduct. 338

F.3d at 1321 (citing O.C.G.A. § 15-16-26). These disciplinary powers can be used

to check sheriffs when they abuse their appointment or removal powers. Based on

these facts, we conclude that Sheriff Prine’s power to hire and fire his deputies is

subject to a significant amount of oversight by the State.

      Second, our conclusion in Keene was also flawed because it strayed from the

“key question” of the Manders function-by-function inquiry, which “is not

what . . . powers sheriffs have, but for whom sheriffs exercise that power.”

Abusaid, 405 F.3d at 1310 (quoting Manders, 338 F.3d at 1319 n.35). While it

may be true that sheriffs alone are authorized to appoint their deputies, O.C.G.A. §

15-16-23, they do not exercise that authority for themselves. Rather, sheriffs select

deputies to assist them in executing their own duties, which have been delegated to

them by the State. See Grech v. Clayton Cnty., Ga., 335 F.3d 1326, 1333 (11th

Cir. 2003) (“In enforcing the laws and conserving the peace, the Governor does not

act alone, but necessarily acts through state agents such as sheriffs.”); see also

Teasley v. Freeman, 699 S.E.2d 39, 42 (Ga. Ct. App. 2010) (“[D]eputies serve as


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the sheriff’s agent, and deputies have no duties other than those of the sheriff.”).

In this sense, sheriffs exercise their power to hire deputies for the State. As a

result, even if the State generally stays out of a sheriff’s day-to-day decisions about

who to hire or fire, the State still maintains a great deal of control. See United

States ex rel. Lesinski v. S. Fla. Water Mgmt. Dist., 739 F.3d 598, 604 (11th Cir.

2014) (“That the District maintains some degree of autonomy over its day-to-day

operations does not change the fact that the State of Florida ultimately retains near-

total control over it.”); id. (holding that the State maintains control because the

entity “derives both the authority and the obligation to exercise those powers

directly from the State”). We thus find that the second Manders factor also weighs

in favor of immunity.

                       C.   Where the Entity Derives Its Funds

      The third factor in the Eleventh Amendment analysis is where the entity

derives its funds. In Keene, we found that this factor weighed against immunity

because the “[c]ounty is clearly the principal source of funding for the Sheriff’s

Office, including for personnel expenditures.” 477 F. App’x at 579. Here again,

we recognize that our prior unpublished opinion is inconsistent with this Court’s

published precedent.

      In Manders, we observed that each county in Georgia bears the major burden

of providing funds to the sheriff’s office, including the salaries of the sheriff and


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his deputies. 338 F.3d at 1323. We did not find this fact to be dispositive,

however, because it is the State that mandates that counties set a budget for the

sheriff’s office. Id. (citing O.C.G.A. §§ 36-9-5, 42-5-2(a), 15-16-20, 45-4-7).

More important, although each county sets the total budget for the sheriff’s office,

it cannot dictate how the sheriff spends those funds. Id.; see McMillian v. Monroe

Cnty., Ala., 520 U.S. 781, 791, 117 S. Ct. 1734, 1740 (1997) (“The county’s

payment of the sheriff’s salary does not translate into control over [the sheriff],

since the county neither has the authority to change his salary nor the discretion to

refuse payment completely.”). Because Lowndes County funds the sheriff’s

department according to State law requirements, we cannot conclude that this

factor weighs in favor of Eleventh Amendment immunity. See Ross v. Jefferson

Cnty. Dep’t of Health, 701 F.3d 655, 660 (11th Cir. 2012) (per curiam) (holding

that the source of funding for the Health Department does not “tip the balance

against immunity because state law requires the county to supply those funds”

(quotation omitted)).

              D.     Liability for and Payment of Adverse Judgments

      Fourth and finally, we consider “who is responsible for judgments against

the entity.” Manders, 338 F.3d at 1309. The Supreme Court has emphasized that

the “impetus” for the Eleventh Amendment was the “prevention of federal-court

judgments that must be paid out of a State’s treasury.” Hess v. Port Auth. Trans-


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Hudson Corp., 513 U.S. 30, 48, 115 S. Ct. 394, 404 (1994). As a result, we have

stated that “the presence of a state treasury drain alone may trigger Eleventh

Amendment immunity and make consideration of the other factors unnecessary.”

Manders, 338 F.3d at 1328 n.51.2

       On this factor, we agree with this Court’s conclusion in Keene and Manders

that the financial independence afforded the sheriff’s office “creates something of a

lacuna” because neither the State nor the County will be required to directly pay

for any adverse judgment against the Sheriff’s office. Keene, 477 F. App’x. at

579; Manders, 338 F.3d at 1327. Rather, any adverse judgment against Sheriff

Prine will be paid out of the budget of the Lowndes County Sheriff’s Office, which

is composed of both County and State funds. Manders, 338 F.3d at 1327.

Nevertheless, to the extent that the state treasury will be spared here from paying

any adverse judgment, this factor weighs in favor of denying immunity. See

Abusaid, 405 F.3d at 1313 (“[T]he fact that a judgment against the Sheriff in this

case would not be paid out of the state treasury is, in itself, a clear marker that the

Sheriff is not an arm of the state.”).


2
  We pause to note, however, that the fourth Manders factor alone is not necessarily dispositive
in any given case. Indeed, our precedent suggests that the presence of a state treasury drain is
likely sufficient but certainly not necessary for a finding of immunity. See Manders, 338 F.3d at
1327 (“Never has the Supreme Court required an actual drain on the state treasury as a per se
condition of Eleventh Amendment immunity.”); Ross, 701 F.3d at 660 (“As to the fourth factor,
our precedent holds that liability by the state treasury is not determinative of whether a
governmental entity should enjoy Eleventh Amendment immunity.”).

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                              III.   CONCLUSION

      As in Manders, the first three factors here weigh in favor of immunity, while

the fourth factor weighs against immunity. On balance, we conclude that Sheriff

Prine enjoys Eleventh Amendment immunity against Ms. Pellitteri’s wrongful

termination claims brought against him in his official capacity under § 1983 and

the ADA. We reverse the District Court’s denial of Sheriff Prine’s motion to

dismiss and remand for further proceedings consistent with this opinion.

      REVERSED AND REMANDED.




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