                                                                         PUBLISH

                 IN THE UNITED STATES COURT OF APPEALS
                        FOR THE ELEVENTH CIRCUIT

                           -------------------------------------------

                                        No. 96-5354

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                         D. C. Docket No. 95-6732-CV-WDF


MIGUEL FLORES,

                                                              Plaintiff-Appellee,

     versus


MICHAEL J. SATZ, SUZANNE M. WHITE, et al.,

                                                              Defendants-Appellants.


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                 Appeal from the United States District Court
                     for the Southern District of Florida

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                                     (March 23, 1998)


Before EDMONDSON and BIRCH, Circuit Judges, and FAY, Senior Circuit Judge.


PER CURIAM:


     Defendants appeal the district court’s denial of a motion to

dismiss Plaintiff’s claims on the basis of qualified immunity.
We conclude that Defendants are entitled to immunity and

reverse.



               The State Criminal Proceedings



    On 2 August 1991, the Broward County Sheriff’s Office

received a report that a crime was committed. The complaining

witness identified Miguel Flores as the perpetrator of the

alleged crime. Flores was -- based on the allegations of the

complaining witness -- then arrested, charged with capital

sexual battery, and incarcerated.

    On 30 August 1991, a state court denied bond and ordered

a psychological evaluation of the complaining witness. But,

upon a motion by the prosecution, the state court later

canceled the evaluation.   Trial was then scheduled for 21

November 1991.    On that date, however, a newly-assigned

prosecutor requested a continuance because the case had just

                              2
been re-assigned to him within the state attorney’s office. The

request for a continuance was granted.

    On 20 February 1992, Flores’s counsel filed a motion to

compel, in which he sought disclosure of the medical and

psychological records of the complaining witness, as well as

police reports that related to the witness’s physical or

psychological well-being. At a hearing on this motion, the

prosecutor agreed to provide the materials requested to the

defense and also agreed to supervised pretrial release for

Flores. The prosecutor further announced that the State would

be seeking its own psychiatric evaluation of the complaining

witness. On 4 April 1992, the State announced that it was

entering a nolle prosse of the charges against Flores.

           The Civil Proceedings in Federal Court




                               3
     Based on these events, Flores, as Plaintiff, filed a

complaint against Defendants1 for these allegedly wrongful

acts: (1) violation of his Fourth Amendment right to be free from

unreasonable seizure; and (2) violation of his Fourteenth

Amendment right to due process. In response, Defendants

claimed that they were entitled to qualified immunity for claims

against them in their individual capacities and moved to

dismiss the complaint.         A Magistrate Judge (Magistrate),

however, denied Defendants’ motion on this point.2                   In

rejecting Defendants’ argument, the Magistrate stated that “the

extent of any qualified immunity defense in a civil rights action


      1
      Defendants included these people: (1) Richard Giuffreda,
Assistant State Attorney (ASA); (2) Leslie Robson, ASA; (3) Michael
Satz, Broward County State Attorney; (4) Brian Trehay, ASA; (5)
Suzanne White, ASA; (6) Lee Seidman; (7) Alan Schreiber, Broward
County Public Defender; and (8) Jose Reyes, Public Defender.
 2
   Plaintiff also made other charges in the complaint: (1) false arrest;
(2) false imprisonment; (3) violation of privacy rights; (4) negligence;
and (5) legal malpractice. The Magistrate, however, dismissed these
claims. That portion of the Magistrate’s decision is not challenged
on appeal.
                                   4
is dependent on the circumstances and motivation of

defendants’ actions as established by the evidence.”         The

district court affirmed the Magistrate’s report in its entirety.

Defendants appeal.3



                          Discussion



       Defendants argue that the district court erroneously

determined that they were entitled to no qualified immunity.

This court reviews a district court’s denial of a motion to

dismiss a complaint on the basis of qualified immunity de novo.

Williams v. Alabama State Univ., 102 F.3d 1179, 1182 (11th Cir.

1997).     “[Q]ualified immunity protects government officials

performing discretionary functions from the burdens of civil

trials and from liability.” McMillian v. Johnson, 88 F.3d 1554,


   3
    Only Giuffreda, Robson, Satz, Trehay, and White are parties to
this appeal.
                                5
1562 (footnote omitted), amended on other grounds, 101 F.3d

1363 (11th Cir. 1996). In Foy v. Holston, we wrote:

     Once the qualified immunity defense is raised,
     plaintiffs bear the burden of showing that the federal
     rights allegedly violated were clearly established. . .
     . This burden is not easily discharged: “That qualified
     immunity protects government actors is the usual
     rule; only in exceptional cases will government actors
     have no shield against claims made against them in
     their individual capacities.” Plaintiffs cannot carry
     their burden of proving the law to be clearly
     established by stating constitutional rights in general
     terms.

94 F.3d 1528, 1532 (11th Cir. 1996) (quoting Lassiter v. Alabama

A & M Univ., 28 F.3d 1146, 1149 (11th Cir. 1994)). Instead, for

qualified immunity to be denied, “‘pre-existing law must dictate,

that is, truly compel . . . the conclusion for every like-situated,

reasonable government agent that what defendant is doing




                                6
violates federal law in the circumstances.’”4 McMillian, 88 F.3d

at 1562 (quoting Lassiter, 28 F.3d at 1150).

      In this case, Plaintiff claims that qualified immunity should

be denied for these reasons: (1) Defendants failed to investigate


  4
    It appears the Magistrate (and the district court by approving and
adopting the Magistrate’s report) applied the wrong legal standard in
making the qualified immunity determination. The Magistrate would
not accept qualified immunity; he said that it was “dependent on the
circumstances and motivation of defendants’ actions as established
by the evidence.” But, we have “rejected the inquiry into [an
official’s] state of mind in favor of a wholly objective standard.” Foy,
94 F.3d at 1532 (internal quotations and citation omitted). A party’s
intent and motivation are not significant in making a qualified
immunity determination unless “subjective motive or intent is a
critical element of the alleged constitutional violation . . . .” Walker
v. Schwalbe, 112 F.3d 1127, 1132 (11th Cir. 1997).
       Plaintiff’s Fourth Amendment and Brady claims do not contain
a subjective component. See Graham v. Connor, 490 U.S. 386, 399
(1989) (“Fourth Amendment inquiry is one of ‘objective
reasonableness’ under the circumstances, and subjective concepts
like ‘malice’ and ‘sadism’ have no proper place in that inquiry.”);
Brady v. Maryland, 373 U.S. 83, 87 (1963) (“[T]he suppression by the
prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or
to punishment irrespective of the good faith or bad faith of the
prosecution.” (emphasis added)); United States v. Schlei, 122 F.3d
944, 988 (11th Cir. 1997) (no intent element is among the elements of
a Brady claim).
                                   7
properly the complaining witness’s credibility and mental

stability and also delayed Plaintiff’s prosecution by frequently

reassigning his case, which caused him to be unlawfully seized

(that is, delayed his release) in violation of the Fourth

Amendment; and (2) the prosecution failed to disclose

discovery materials in violation of Brady v. Maryland, 373 U.S.

83 (1963), which resulted in a denial of due process.5

         Plaintiff’s arguments do not persuade us.         That the

prosecution did not investigate properly or prosecute

expeditiously the charges against him does not violate clearly

established constitutional rights.6 The cases cited by Plaintiff


     5
      Plaintiff did not allege that Defendants violated his right to a
speedy trial because of the delay in prosecuting his case. And, we
observe that the delay would not have been a per se violation of
Plaintiff’s right to a speedy trial. See generally United States v.
Hayes, 40 F.3d 362, 365-66 (11th Cir. 1994) (discussing the four-part
test for determining whether a person’s right to a speedy trial has
been violated; holding that five-year delay between indictment and
trial was not violation of right to a speedy trial).
 6
  While not argued on appeal, we note that Defendants are probably
entitled to absolute immunity as prosecutors. See Elder v. Athens-
                                  8
involve materially different facts7 and, moreover, are not

controlling in this circuit. See Jenkins v. Talladega City Bd. of

Educ., 115 F.3d 821, 826-27 n.4 (11th Cir. 1997) (en banc) (“In

this circuit, the law can be ‘clearly established’ for qualified

immunity purposes only by decisions of the U.S. Supreme



Clarke County, Ga., 54 F.3d 694, 695 (11th Cir. 1995) (“A prosecutor’s
decision to bring charges against a person, so long as the prosecutor
is acting within the scope and territorial jurisdiction of his office, is
immune from an action for damages under § 1983.”).
   7
     Plaintiff cites two cases in which the courts concluded that a
section 1983 claim may be actionable if government officials
intentionally conceal -- as opposed to fail to investigate fully -- the
true facts about the crime at issue. See Bell v. City of Milwaukee, 746
F.2d 1205, 1260-1262 (7th Cir. 1984); Ryland v. Shapiro, 708 F.2d 967,
974-975 (5th Cir. 1983). Plaintiff, however, alleged only that the
Defendants failed to investigate fully the charges against him. He did
not allege that Defendants intentionally concealed facts about the
crime at issue here.
      In addition, Plaintiff cites a case in which a court held that a
section 1983 claim may be actionable if the police detain a person
beyond a time when they know him to be, in fact, innocent. See Gay
v. Wall, 761 F.2d 175 (4th Cir. 1985). But again, Plaintiff alleged only
that Defendants held Plaintiff for a time when they “knew or should
have known” that there was insufficient evidence to warrant
prosecution. Never did he allege that Defendants knew Plaintiff was,
in fact, innocent of the charges against him.
                                   9
Court, Eleventh Circuit Court of Appeals, or the highest court

of the state where the case arose.” (citation omitted)).

     In addition, despite Plaintiff’s claims, he has not shown

that Defendants violated a clearly established right under

Brady. “Brady protects an accused’s due process right to a fair

trial.” McMillian, 88 F.3d at 1567. And, due process is violated

when a defendant is convicted in a trial in which the

prosecution failed to disclose to the defense exculpatory or

impeachment evidence that undermines confidence in the

outcome of the trial. See Brady, 373 U.S. at 87; United States v.

Newton, 44 F.3d 913, 918 (11th Cir. 1994) (“The Brady rule

protects a defendant from erroneous conviction . . . .”); see also

United States v. Bailey, 123 F.3d 1381, 1398 (11th Cir. 1997) (no

Brady violation because no exculpatory evidence that would

“have affected [defendant’s] conviction”). Plaintiff, however,

was never convicted and, therefore, did not suffer the effects of

an unfair trial. As such, the facts of this case do not implicate

                               10
the protections of Brady.8 See United States v. McKinney, 758

F.2d 1036, 1049 (5th Cir. 1985) (the court cannot reverse a

conviction under Brady “unless a fundamentally unfair trial

resulted”); see also United States v. O’Keefe, 128 F.3d 885, 898

(5th Cir. 1997) (So long as the evidence is disclosed “at trial in

time for it to be put to effective use, a new trial will not be

granted ‘simply because [the Brady evidence] was not

disclosed as early as it might have and, indeed, should have

been.’” (quoting McKinney, 758 F.2d at 1050)).

       Thus, Plaintiff has failed to show that Defendants violated

clearly established constitutional rights.           Defendants are


   8
    We also note that Plaintiff’s complaint might not allege a Brady
violation for another reason. In his complaint, Plaintiff merely alleged
that Defendants failed to provide him with discovery, such as medical
and police reports. But, Plaintiff did not allege how -- and to what
extent -- these reports would be exculpatory. And, Brady is “‘not a
discovery rule, but a rule of fairness and minimum prosecutorial
obligation.’” United States v. Campagnuolo, 592 F.2d 852, 859 (5th
Cir. 1979) (quoting United States v. Beasley, 576 F.2d 626, 630 (5th Cir.
1978)). As a result, an attempt to have Brady encompass discovery
materials, in general, must be unavailing.
                                   11
entitled to qualified immunity. The order of the district court is

reversed.

     REVERSED.




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