                                                                         [PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                    FILED
                         ________________________          U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                 APRIL 19, 2002
                                No. 01-13151                  THOMAS K. KAHN
                         ________________________                  CLERK
                      D. C. Docket No. 99-0132-CV-CC-1

BRIAN L. GRECH,

                                                  Plaintiff-Appellant,

                                      versus

CLAYTON COUNTY, GEORGIA,
                                                  Defendant-Appellee.

                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                        _________________________
                                (April 19, 2002)


Before BARKETT, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:

      In this § 1983 action, Appellant-Plaintiff Brian L. Grech (“Grech”) appeals

the district court’s grant of summary judgment to the defendant Clayton County,

Georgia (“Clayton County”). Grech’s complaint asserts that he was falsely
arrested in 1998 on an expired bench warrant from 1985 and that his false arrest

was caused by the Clayton County Sheriff’s Department’s custom and policy of

permitting invalid criminal warrants to remain on certain computer databases and

its failure to adequately train its operators in this regard.

      Without addressing the merits of Grech’s constitutional claims, the district

court granted summary judgment to the defendant Clayton County, concluding that

Clayton County could not be liable under § 1983 in any event because the Clayton

County Sheriff is not a county policymaker when performing his law enforcement

duties. The parties do not dispute that the Sheriff is a final policymaker but

disagree regarding whether the Sheriff acts for the state or the county with respect

to the maintenance and recall of criminal warrants. Because our precedent has

treated § 1983 suits against Georgia sheriffs as suits against counties, we must

likewise treat the Clayton County Sheriff as representing Clayton County and thus

as a county policymaker. Therefore, we reverse the grant of summary judgment to

Clayton County and remand to the district court for consideration of the merits of

Grech’s constitutional claims.

                                 I. BACKGROUND

      We first discuss Grech’s 1985 arrest that resulted in a bench warrant and

then his 1998 arrest on that warrant.


                                            2
A.    Grech’s 1985 Arrest

      On March 16, 1985, law enforcement officers of Clayton County, Georgia,

arrested Grech for DUI and speeding. The following morning, he was released

from jail on bond and was given a court date of June 13, 1985, for both charges.

On June 13, 1985, Grech failed to appear in the Clayton County state court,

mistakenly believing that he could handle the charges from his residence in

Kentucky. Consequently, on June 24, 1985, the Clayton County state court issued

a bench warrant that revoked Grech’s bond and authorized law enforcement

officers to arrest Grech. That bench warrant on its face referenced the two case

numbers for the DUI and speeding charges and stated that Grech had failed to

appear in court as required on June 13, 1985.1

      On June 24, 1985, the bench warrant was entered into the Criminal Justice

Information System (“CJIS”), which is an in-house computer database shared by

the Clayton County Sheriff’s Department and the courts. On July 5, 1985,


      1
         A defendant who fails to appear in court may be charged with failure to
appear under O.C.G.A. § 40-13-63 or bail-jumping under O.C.G.A. § 16-10-51.
The pre-printed type at the top of the bench warrant states “Bench Warrant Failure
to Appear,” but does not reference either statute. The parties dispute whether the
1985 bench warrant was sufficient under Georgia law for a separate charge of
failure to appear and whether that charge was effectively resolved when Grech pled
to the DUI and speeding charges. The district court did not address the merits of
Grech’s constitutional claims, and we need not decide these issues to resolve the §
1983 policymaker question in this appeal.
                                         3
employees of the Clayton County Sheriff’s Department entered the bench warrant

into the Georgia Crime Information Center Network (“GCIC”). The GCIC is a

statewide criminal computer database administered by the State of Georgia through

the GBI and accessible by law enforcement agencies throughout Georgia. Both

the GCIC and the CJIS contain information on “wanted” individuals who may be

arrested by law enforcement.

      In addition to issuing a bench warrant, the Clayton County state court sent

Grech a letter informing him that he had missed his court date and that his

appearance in court was necessary. Soon thereafter, Grech voluntarily returned to

Georgia for his court appearance. On July 12, 1985, Grech entered a plea of nolo

contendere on the speeding ticket and pled guilty to DUI in the Clayton County

state court. As a result, Grech was fined and sentenced to twelve months of

probation. At his court hearing, the state court judge reprimanded Grech for

missing his previous court date.

      Grech alleges that he was not informed that a bench warrant had been issued

by the state court only a few weeks earlier. Grech assumed that the charges against

him were taken care of after he entered the pleas and paid his fine. Despite the

dispositions of the offenses underlying the bench warrant, the Clayton County

Sheriff’s Department failed to remove the bench warrant from the GCIC and CJIS


                                         4
systems. Instead, the bench warrant remained active for thirteen years on both the

GCIC and CJIS until July 3, 1998.2

B.    The GCIC System

          The Clayton County Sheriff’s Department has employees trained as

terminal operators who enter criminal warrants into the GCIC system and who are

instructed to validate the outstanding warrants in the GCIC system annually to

safeguard against invalid warrants remaining on the system. As part of the

validation process, terminal operators are supposed to contact the entity that issued

the warrant to verify that the warrant has not been recalled or withdrawn. The

State of Georgia requires that terminal operators complete the GCIC training

workbooks and certification requirements. The terminal agency coordinator is an

employee of the Sheriff’s Department who has completed advanced GCIC training

and certification requirements. The terminal agency coordinator supervises the




      2
        The bench warrant referencing the DUI and speeding charges was not
cleared from the CJIS until July 3, 1998. Grech’s CJIS entry, however, indicated
that on March 16, 1985, Grech pled guilty to the DUI charge and entered a nolo
contendere plea on the speeding charge. In their depositions, both Captain Glaze
and warrant officer Melba Hensel indicated that there may have been an error in
Grech’s CJIS entry because March 16, 1985, was the date on which the DUI and
speeding citations were given, rather than the date on which Grech entered his
pleas.
                                          5
training and certification of terminal operators and acts as a liaison between the

GCIC and Sheriff’s Department.

      In addition, the GBI audits law enforcement agencies, such as the Clayton

County Sheriff’s Department, every two years to ensure compliance with the GCIC

rules and regulations. Auditors obtain a statistical sample of active wanted,

missing person, and stolen vehicle files from the audited agency and review its

files for compliance with the GCIC rules and regulations, including a review of the

agency’s training records and validation procedures. Grech contends that the audit

reports regarding the Clayton County Sheriff’s Department for 1996 and 19983

demonstrate that the Sheriff’s Department performed poorly in many of the areas

reviewed by auditors, particularly with respect to the training of its GCIC terminal

operators and the validation of the GCIC entries to ensure that only accurate, valid

information is maintained on the GCIC system.

C.    Grech’s 1998 Arrest

      On July 3, 1998, Grech was stopped by a City of Fayetteville police officer

because one of his car’s tail lights was not functioning. When the officer ran a

routine check on Grech’s driver’s license, the GCIC records revealed an



      3
       The Sheriff’s Department does not have records of audits conducted prior
to 1994, and the records of the 1994 audit are incomplete.
                                          6
outstanding bench warrant dating back to 1985. Grech tried to explain to the

officer that there must be some mistake if the records showed an outstanding

warrant since he had taken care of the 1985 charges. The police officer requested

advice from the Clayton County Sheriff’s Department on how to proceed. After

verifying its records, the Clayton County Sheriff’s Department responded that

Grech’s 1985 bench warrant was still active. Thereafter, the police officer arrested

Grech.

      Initially transported to the Fayette County jail, Grech was later transferred to

the Clayton County jail where he was released on a bond of $1370.00. Grech spent

nine hours in jail. On August 17, 1998, a Clayton County judge returned the

posted bond of $1370.00 to Grech. The Clayton County Sheriff’s Department,

however, has never admitted that it erred in not withdrawing Grech’s 1985 bench

warrant from the GCIC and CJIS systems.4

D.    Procedural History

      On March 20, 1999, Grech brought a § 1983 action against Clayton County,5

alleging that his civil rights were violated when he was arrested in 1998 pursuant



      4
          See supra note 1.
      5
        Neither the Clayton County Sheriff in his official capacity nor any
individual law enforcement officer was named as a defendant in this case.
                                          7
to a 1985 bench warrant that Clayton County had failed to recall. Grech’s

complaint alleged that the false arrest was an unreasonable search and seizure

violating the Fourth Amendment of the United States Constitution and Article 1,

Section 1, Paragraph 13 of Georgia Constitution and a due process violation under

the Fourteenth Amendment of the United States Constitution and Article 1, Section

1, Paragraph 1 of the Georgia Constitution. In addition, Grech claimed that

Clayton County committed numerous torts, including intentional infliction of

emotional distress, false arrest, and false imprisonment.

       In the portion of the complaint relevant to the alleged federal constitutional

violations under § 1983, Grech stated that “Defendant’s failure to ensure adequate

training, policies, procedures, practices, and customs regarding the use of the

GCIC Computer System constituted a pattern or practice of deliberate indifference

and led directly and foreseeably to the arrest of the Plaintiff.” In addition, Grech

claimed that Clayton County had a custom and policy of permitting errors in

warrant information on the GCIC and of failing to prevent the posting and

maintenance of invalid or unconstitutional criminal warrants and warrant

information on the GCIC.

      On February 3, 2000, Clayton County moved for summary judgment on the

state and federal claims. In its summary judgment motion, Clayton County


                                          8
asserted that it could not be held liable for the actions of the Clayton County

Sheriff or his deputies because the Sheriff was an agent of the state, not the county,

and, in any event, Grech had failed to produce evidence of an unconstitutional

policy or custom which was the moving force behind any alleged constitutional

violation. With respect to the state law claims, Clayton County argued they were

barred by the doctrine of sovereign immunity.6

      On August 22, 2000, the district court granted summary judgment in favor

of Clayton County on all claims. Relying on Fletcher v. Screven County, 92 F.

Supp.2d 1377 (S.D. Ga. 2000), the district court concluded that Clayton County

may not be liable under § 1983 for the alleged unconstitutional conduct of the

Clayton County Sheriff’s Department. The district court determined that Clayton

County is liable for the actions of its Sheriff only if the Sheriff’s actions constitute

county policy. The court recognized that the pivotal issue is whether the Sheriff

acts for the county or the state in making law enforcement policy. The court

concluded that “under Georgia law, Clayton County does not control or direct the

Clayton County Sheriff in the performance of his law enforcement duties” and that

the County particularly does not control or direct the Sheriff’s Department as to its


      6
       In his brief in opposition to Clayton County’s summary judgment motion,
Grech did not oppose Clayton County’s motion for summary judgment with
respect to the state law claims.
                                            9
compliance with GCIC rules and regulations or the training of its personnel in that

regard. Thus, the district court indicated that Clayton County could not be liable

because the Sheriff was not a final policymaker for Clayton County when

performing these law enforcement duties.

      On May 8, 2001, the district court denied Grech’s motion for reconsideration

and motion to vacate judgment and add or substitute a necessary party defendant.

The district court’s order reiterated that “Clayton County cannot be liable under §

1983 for the alleged unconstitutional conduct of the Sheriff or his employees.”

Grech timely appealed.

                                  II. DISCUSSION

      It is well-settled that a county’s liability under § 1983 may not be based on

the doctrine of respondeat superior. See Monell v. Dep’t of Soc. Servs., 436 U.S.

658, 694 (1978). “Instead, it is when execution of a [county’s] policy or custom,

whether made by its lawmakers or by those whose edicts or acts may fairly be said

to represent official policy, inflicts the [constitutional] injury that the [county] as

an entity is responsible under § 1983.” See id. Therefore, a necessary step in

establishing a county’s § 1983 liability is identifying “‘those officials or

governmental bodies who speak with final policymaking authority for the local

governmental actor concerning the action alleged to have caused the particular


                                           10
constitutional or statutory violation at issue.’” McMillian v. Monroe County, 520

U.S. 781, 785 (1997) (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737

(1989)).

      On appeal, the parties do not dispute that the Sheriff of Clayton County is a

final policymaker as to his law enforcement duties regarding the maintenance and

recall of criminal warrants. They also recognize that Clayton County may be liable

in this § 1983 action only if the Sheriff is a final policymaker acting for the county.

See Turquitt v. Jefferson County, 137 F.3d 1285, 1291-92 (11th Cir. 1998) (en

banc). However, the parties dispute what entity the Sheriff represents when

performing his law enforcement duties. Specifically, they dispute whether the

Sheriff acts for the state or the county with respect to the maintenance and recall of

criminal warrants.

      This Court has never directly examined whether Georgia sheriffs are county

policymakers when performing their law enforcement duties. However, applying

the well-established rule that an official capacity suit against a governmental

officer is equivalent to a suit against the entity of which the officer is an agent, this

Court in prior § 1983 cases has summarily treated official capacity suits against

Georgia sheriffs as suits against their respective counties. See Wayne v. Jarvis,

197 F.3d 1098, 1105-06 (11th Cir. 1999) (stating that the plaintiff’s § 1983 claims


                                           11
against the sheriff in his official capacity stated claims against the county even

though the county itself was not sued and proceeding to address the merits of the

constitutional claims against the county); Alexander v. Fulton County, 207 F.3d

1303, 1322 & n.14 (11th Cir. 2000) (observing that the plaintiffs’ suit against the

sheriff in her official capacity is the functional equivalent of suing the county, but

refraining from addressing liability under § 1983 because “Title VII provide[d] an

alternative basis for liability”).

       Necessarily implicit in this Court’s treatment of § 1983 official capacity

suits against Georgia sheriffs as suits against counties is that the sheriff is acting

for the county. Although the underlying policymaker question was not analyzed

in these earlier § 1983 decisions, we are bound by the holding of the first panel of

this Court to address an issue of law, unless and until that holding is overruled en

banc or by the Supreme Court. See, e.g., Smith v. GTE Corp., 236 F.3d 1292,

1300 n.8, 1302-03 (11th Cir. 2001); Turner v. Beneficial Corp., 236 F.3d 643, 648-

50 (11th Cir. 2000), vacated by 242 F.3d 1023 (11th Cir. 2001) (en banc); United

States v. Hogan, 986 F.2d 1364, 1369 (11th Cir. 1993). Therefore, under our prior

panel precedent rule, we must treat Georgia sheriffs as representing counties and

thus as county policymakers with respect to their law enforcement duties.

Accordingly, we conclude that the district court erred in holding that the Sheriff of


                                           12
Clayton County is not a county policymaker and that Clayton County may never be

liable in a § 1983 action for the Sheriff’s actions.

                                III. CONCLUSION

       We reverse the district court’s grant of summary judgment to Clayton

County with respect to Grech’s § 1983 claims.7 Because the district court did not

consider the merits of Grech’s constitutional claims, we remand to the district court

for consideration of Grech’s claims.

      REVERSED and REMANDED.




      7
       As to the district court’s grant of summary judgment with respect to
Grech’s state law claims, Grech does not challenge this portion of the district
court’s order on appeal. Thus, we address only Grech’s § 1983 claims.
                                           13
HULL, Circuit Judge, specially concurring:

      I concur in the majority opinion in full and follow our precedent, but I

question that precedent for the reasons stated in Manders v. Lee, No. 01-13606,

___ F.3d ___(11th Cir. March 14, 2002).




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