UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

STEVEN H. WALL, personal
representative of the estate of
Edward Joseph Alva,
Plaintiff-Appellant,

and

AMBER JEAN ALVA, a minor, by and
through Steven H. Wall, personal
representative of the estate of
Edward Joseph Alva; ASHLEY MARIE
ALVA, a minor, by and through
                                                               No. 96-2461
Steven H. Wall, personal
representative of the estate of
Edward Joseph Alva,
Plaintiffs,

v.

ALLEN SLOAN, Richland County
Sheriff, in his individual capacity
and in his official capacity as
Richland County Sheriff,
Defendant-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Matthew J. Perry, Jr., Senior District Judge.
(CA-95-3993-3)

Submitted: January 6, 1998

Decided: February 11, 1998

Before HALL, LUTTIG, and MICHAEL, Circuit Judges.

_________________________________________________________________
Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Rolf M. Baghdady, Columbia, South Carolina, for Appellant. William
H. Davidson, II, Andrew F. Lindemann, ELLIS, LAWHORNE,
DAVIDSON, & SIMS, P.A., Columbia, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Steven H. Wall, as personal representative of the estate of Edward
Joseph Alva and on behalf of Alva's minor children, filed suit pursu-
ant to 42 U.S.C. § 1983 (1994), against Allen Sloan, Richland County
Sheriff, in his official and individual capacity. Wall appeals the dis-
trict court's order granting Sloan's motion to dismiss on the grounds
that Sloan is entitled to immunity in his official capacity as a state
official and that Wall failed to state a cognizable claim against Sloan
in his individual capacity. We affirm.

The decedent, Edward Alva, was employed by Sloan as a deputy
sheriff. In the course of this employment in December 1992, Alva and
another deputy sheriff, Lonnie Rolls, responded to a domestic dispute.
A struggle ensued with the perpetrator, during which the perpetrator
seized Alva's gun. Alva ordered Rolls to shoot the perpetrator.
Instead, Rolls struck the perpetrator over the head with a gun which
fired a bullet into Alva's head, killing him instantly. Wall alleges that
Rolls violated department regulations by failing to follow a trained
officer's direct orders and that Sloan failed to require that Rolls be
properly trained before sending him on patrol. Wall claims that as a

                    2
result Alva was killed in violation of Alva's Fourth and Fourteenth
Amendment rights.

The Eleventh Amendment prohibits an action for damages in fed-
eral court against a public official in his official capacity if the official
is deemed to be an agent of the state. See McConnell v. Adams, 829
F.2d 1319, 1328-29 (4th Cir. 1987). The "largely, if not wholly, dis-
positive" factor in determining whether an entity is an arm of the state
is the state treasury's liability for judgment. See Gray v. Laws, 51
F.3d 426, 433 (4th Cir. 1995). But if it is not clear from the record
the extent of the state treasury's liability with respect to judgment,
such as in this case, courts must consider other factors such as the
state's sovereignty in the federal system and the extent of the state's
control over the entity claiming immunity. See id. at 434; Cromer v.
Brown, 88 F.3d 1315, 1332 (4th Cir. 1996); see also Hess v. Port
Auth. Trans-Hudson Corp., 513 U.S. 30 (1994). The analysis of these
factors has been conducted in previous cases to determine whether
South Carolina sheriffs are entitled to Eleventh Amendment protec-
tion. Under that analysis, we agree that a South Carolina sheriff such
as Sloan is a state official and therefore is not subject to suit for mon-
etary damages in his official capacity. See Cromer, 88 F.3d at 1332;
Gulledge v. Smart, 691 F. Supp. 947, 954 (D.S.C. 1988), aff'd, 878
F.2d 379 (4th Cir. 1989); Cone v. Nettles, 417 S.E.2d 523, 524-25
(S.C. 1992).

Wall primarily contends on appeal that because he seeks monetary
relief from the county rather than the state, Sloan should not be enti-
tled to Eleventh Amendment immunity. We find this claim unavail-
ing. While the extent of the state treasury's liability is the main
consideration in determining immunity, a party cannot file suit under
§ 1983 and specifically seek money from the county and not the state
in an effort to circumvent an official's entitlement to Eleventh
Amendment protection. An individual who brings a§ 1983 action
under these circumstances cannot choose which entity will satisfy any
resulting judgment. Accordingly, the district court properly concluded
that Sloan is a state official entitled to immunity in his official capac-
ity.

Wall also maintains that Sloan is liable under § 1983 in his individ-
ual capacity. State officials are considered "persons" within the mean-

                      3
ing of § 1983 when sued in their individual capacities and as such
may be held personally liable for damages under§ 1983 for official
actions. See Hafer v. Melo, 502 U.S. 21, 31 (1991). An official per-
forming discretionary functions, however, generally is shielded from
liability for civil damages if his conduct did not violate clearly estab-
lished statutory or constitutional rights of which a reasonable person
would have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). Ruling on a defense of qualified immunity requires (1) identi-
fication of the specific right allegedly violated; (2) determining
whether at the time of the alleged violation the right was clearly
established; and (3) if so, then determining whether a reasonable per-
son in the officer's position would have known that doing what he did
would violate that right. Pritchett v. Alford , 973 F.2d 307, 312 (4th
Cir. 1992).

In the complaint, Wall alleges that Alva was deprived of his "rights
under the Fourth and Fourteenth Amendments to be secure in his per-
son and to be free from the use of deadly force." The district court
construed Wall's claim to allege a violation of only Alva's Fourth
Amendment right against unreasonable seizures. Alva does not chal-
lenge that construction in his opening brief. We consequently confine
our review to the question of whether Alva stated a Fourth Amend-
ment violation. See Hunt v. Nuth, 57 F.3d 1327, 1338 (4th Cir. 1995),
cert. denied, 64 U.S.L.W. 3466 (U.S. Jan. 8, 1996) (No. 95-6509).
Unintended consequences of government action cannot form the basis
of a Fourth Amendment violation because "seizure" within the mean-
ing of the Fourth Amendment implies a willful and knowing act. See
Brower v. County of Inyo, 489 U.S. 593, 596 (1989). The Fourth
Amendment addresses misuse of power, not the accidental effects of
otherwise lawful conduct. Id.

In this case, Rolls, in accordance with his duties as deputy sheriff,
intended to restrain the perpetrator by hitting him over the head with
the gun. He did not intend to hit Alva on the head or to shoot Alva
or the perpetrator. While Alva's death was tragic, Rolls's conduct did
not violate the Fourth Amendment. Because there is no underlying
constitutional infraction, the district court properly dismissed the case
against Sloan in his individual capacity.

Accordingly, we affirm the district court's order dismissing all
claims against Sloan. We dispense with oral argument because the

                     4
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.

AFFIRMED

                    5
