                                                                       [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS
                         FOR THE ELEVENTH CIRCUIT
                          ________________________      FILED
                                                                     U.S. COURT OF APPEALS
                                     No. 05-16360                      ELEVENTH CIRCUIT
                                                                        OCTOBER 18, 2006
                               ________________________
                                                                        THOMAS K. KAHN
                                                                             CLERK
                           D. C. Docket No. 04-00117-CV-F-N

THOMAS JOHNSON,

                                                                   Plaintiff-Appellee,

                                             versus

SAMUEL OLGILVIE, individually and as an
explorer for the City of Clanton,

                                                                   Defendant-Appellant.

                               ________________________

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

                                     (October 18, 2006)

Before ANDERSON and DUBINA, Circuit Judges, and VINSON,* District Judge.

PER CURIAM:

_____________________
*Honorable C. Roger Vinson, United States District Judge for the Northern District of Florida,
sitting by designation.
      After careful consideration, and for the reasons noted herein and discussed at

oral argument, we conclude that the judgment of the district court with respect to

appellant Olgilvie is due to be affirmed. With respect to appellant’s challenge to

his status as a state actor, and based on the facts assumed by the district court, we

conclude that Williams v. United States, 341 U.S. 97, 71 S.Ct. 576 (1951), clearly

establishes that appellant here was a state actor. With respect to the excessive force

claim, we accept the facts assumed by the district court, namely, that appellant

actively participated in the arrest of plaintiff, and personally participated in the

beating after the plaintiff was already down, not resisting, and handcuffed; during

the beating, plaintiff’s head was slammed into the paved parking lot. Under the

assumed facts, the district court did not err in denying qualified immunity with

respect to plaintiff’s excessive force claim. Lee v. Ferraro, 284 F.3d 1188 (11th Cir.

2002); Slicker v. Jackson, 215 F.3d 1225 (11th Cir. 2000); and Thornton v. City of

Macon, 132 F.3d 1395 (11thCir. 1998). Also, on the facts assumed by the district

court and accepted by us, it is clear that there was no arguable probable cause for

the arrest. Finally, we agree with the district court’s denial of Olgilvie’s claim for

immunity from the Alabama law claims under the Voluntary Service Act.

      AFFIRMED.




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