                                                      [DO NOT PUBLISH]

          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT            FILED
                     ________________________ U.S. COURT OF APPEALS
                                                      ELEVENTH CIRCUIT
                           No. 06-12069                   FEB 6, 2007
                       Non-Argument Calendar           THOMAS K. KAHN
                     ________________________               CLERK


                  D. C. Docket No. 05-00871-CV-BE-S

MELISSA BARBEE,

                                                            Plaintiff-Appellee,


                               versus

NAPHCARE, INC,
SHELBY COUNTY CORRECTIONAL
FACILITY,

                                                                  Defendants,

SHERIFF MIKE CURRY,
CAPTAIN MCKALE SMITHERMAN,

                                                    Defendants-Appellants.

                     ________________________

             Appeal from the United States District Court
                for the Northern District of Alabama
                   _________________________

                         (February 6, 2007)
Before MARCUS, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

       Sheriff Chris Curry of Shelby County, Alabama, and Captain Mikul

Smitherman, the Administrator of the Shelby County Correctional Facility, appeal

the district court’s denial of their motion to dismiss Count VI of the amended

complaint, in which plaintiff Melissa Barbee, a white female, asserted a claim

under 42 U.S.C. § 1983 for violation of her equal protection rights based on the

termination of her employment.1 We issued the following jurisdictional question,

inter alia, to the parties concerning this appeal: “[w]hether the district court’s

denial of defendants’ motion to dismiss as to Count Six of the amended complaint

is immediately appealable.” After the parties filed their responses, we entered an

order stating that the appeal could proceed because we have jurisdiction to review

the district court’s denial of the motion to dismiss “to the extent [the district court’s

order] was based on the defense of qualified immunity.” On appeal, the Appellants

contend that the district court should have dismissed Count VI for failure to state a

claim under § 1983. More specifically, as they did in the district court, Appellants

challenge the sufficiency of the amended complaint’s allegations against them,



       1
           Barbee initially had filed a cross-appeal from the dismissal, for failure to state a claim,
of Counts I through V of her amended complaint. We previously dismissed the cross-appeal for lack
of jurisdiction. Thus, only the dismissal of Count VI is before us.

                                                  2
arguing that Barbee alleged a violation of her civil rights by “the defendants,” and

that her failure to specify the specific defendants is fatal to her Count VI claim.

Because it is not altogether clear that the district court reached the issue of

Appellants’ qualified immunity, which is the only issue over which we currently

have jurisdiction, we vacate and remand for further proceedings.

      In Count VI of the amended complaint, Barbee asserted a claim under §

1983 for violation of her Equal Protection rights. More specifically, she alleged

that her employment with Naphcare, Inc., a private company that contracted to

provide medical services at the Shelby County Jail, was terminated unlawfully

because she has biracial children, dates African-American men, and refused to lie

during an official Alabama Bureau of Investigation inquiry. Appellants Curry and

Smitherman filed a motion to dismiss all counts. As to the Equal Protection claim

at issue in this appeal, they stated:   “Said defendants are entitled to qualified

immunity from the sole claim brought pursuant to 42 U.S.C. § 1983 asserting an

equal protection violation.” In their supporting memorandum of law, however,

they did not argue that they were entitled to qualified immunity as to the Equal

Protection claim, instead arguing that Barbee failed to state a claim against them

because, rather than name them individually, the amended complaint named

“Defendants.”



                                         3
      In her response to the motion to dismiss, Barbee responded, without specific

reference to Count VI, that “the sheriff and deputy sheriff” were not entitled to

qualified immunity because they were acting within their discretionary authority

and the right to be free from racial discrimination in employment based upon

interracial association was clearly established.

      In its order on the motion to dismiss, the district court found, as to Count VI,

that: (1) Curry and Smitherman conceded that Barbee “properly raise[d] a

constitutional claim;” and (2) Count VI sufficiently identified Curry and

Smitherman as defendants and, therefore, sufficiently pled a claim under § 1983.

The district court made no mention of the qualified immunity issue. Indeed, given

that Appellants raised it in their motion to dismiss but made no argument on the

matter in their supporting memorandum of law, it may be that the district court did

not consider the Appellants to have raised the defense by mere mention of it in the

motion to dismiss. Appellants then filed this interlocutory appeal.

      On appeal, Curry and Smitherman argue that Barbee’s complaint fails to

state a claim for violation of a “clearly established “ constitutional right, and that

they are entitled to qualified immunity on Count VI. The Supreme Court has set

forth a two-part test for evaluating a claim of qualified immunity. The threshold

question is: “Taken in the light most favorable to the party asserting the injury, do



                                           4
the facts alleged show the officer’s conduct violated a constitutional right?”

Saucier v. Katz, 533 U.S. 194, 201 (2001). If a constitutional right would have

been violated under the plaintiff’s version of the facts, the court must then

determine “whether the right was clearly established.” Id.; Vinyard v. Wilson, 311

F.3d 1340, 1346 (11th Cir. 2002); cf. Hudson v. Hall, 231 F.3d 1289, 1296 n.5

(11th Cir. 2000) (while recognizing that the foregoing order of inquiry should be

followed generally, holding that it is not required absolutely).     The defense of

qualified immunity “may be generally asserted (1) on a pretrial motion to dismiss

under Rule 12(b)(6) for failure to state a claim; (2) as an affirmative defense in the

request for judgment on the pleadings pursuant to Rule 12(c); (3) on a summary

judgment motion pursuant to Rule 56(e); or (4) at trial.” Skrtich v. Thornton, 280

F.3d 1295, 1306 (11th Cir. 2002).

      Here, the district court determined first that Barbee “properly raise[d] a

constitutional claim[,]” which could be construed as analysis under the first prong

of the Saucier analysis.     However, the court made no mention of qualified

immunity, nor of the second Saucier prong, in denying Curry and Smitherman’s

motion to dismiss on Count VI. Instead, the court analyzed Appellants’ alternative

argument -- that Barbee failed to state a claim because she had not alleged which

defendants she was referring to when she asserted, in Count VI, that “the



                                          5
defendants” terminated her. The district court rejected this argument: “Plaintiff’s

use of the term ‘defendants’ incorporates all defendants. Accordingly, Count Six

sufficiently identifies both Curry and Smitherman as parties against whom Plaintiff

is seeking relief under § 1983. Further, § 1983 does not require that Defendants be

Plaintiff’s employer; it is enough if they conspired with Naphcare to terminate

Plaintiff in violation of her constitutional rights. This claim is sufficiently pled to

survive a Motion to Dismiss; and, accordingly, Defendants’ Motion as to Count

Six is DENIED.” From our review of the record, we cannot discern whether the

district court considered the parties to have raised the qualified immunity issue. In

any event, it is clear that the district court did not engage in the Saucier analysis.

      On this record, we cannot engage in meaningful appellate review. Instead,

we remand the case to the district court for further proceedings, including for a

determination of whether the motion to dismiss properly raised qualified immunity

as a defense to Count VI and, if so, application of the two-part test for qualified

immunity set forth in Saucier. See Selman v. Cobb County School Dist., 449 F.3d

1320, 1334, 1338 (11th Cir. 2006) (vacating and remanding for further findings of

fact where the record on appeal did not provide for meaningful appellate review).

      VACATED AND REMANDED.




                                            6
