                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                     FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                                July 22, 2008
                              No. 08-11073                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                    D. C. Docket No. 07-00666-CV-JOF-1

LEVOULAR DENISE MCCRAY,


                                                            Plaintiff-Appellant,

                                   versus

PAUL HOWARD,

                                                           Defendant-Appellee.


                        ________________________

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

                               (July 22, 2008)

Before TJOFLAT, BLACK and HULL, Circuit Judges.

PER CURIAM:

     Plaintiff-Appellant Levoular Denise McCray, a courtroom deputy for the
Superior Court of Fulton County, appeals the district court’s dismissal of her 42

U.S.C. § 1983 complaint against Defendant-Appellee Paul Howard, the District

Attorney of Fulton County, for failure to state a claim. After review, we affirm.

                                     I. BACKGROUND

       Plaintiff McCray’s complaint alleged that Defendant Howard struck and

injured her while he resisted removal from a courtroom and later made defamatory

statements about McCray during a press conference, all in violation of her due

process rights.1

A.     March 31, 2006 Incident

       On March 31, 2006, McCray was serving as a courtroom deputy for a Fulton

County Superior Court Judge (“the Judge”). After the jury returned a not-guilty

verdict in a criminal trial, the Judge allowed the attorneys to ask the jury questions.

Defendant Howard, who was not the attorney handling the criminal case, entered

the Judge’s courtroom and insisted on talking to the jury. The Judge asked

Howard to stop questioning the jury because he was not one of the attorneys

handling the case, but Howard ignored the Judge and continued. After warning

Howard at least three times, the Judge ordered that Howard be removed from the



       1
         In reviewing the district court’s dismissal, we accept the factual allegations in McCray’s
complaint as true and construe them in the light most favorable to her. Glover v. Liggett Group,
Inc., 459 F.3d 1304, 1308 (11th Cir. 2006).

                                                 2
courtroom.

      McCray and another officer asked Howard to leave, but he again refused.

According to McCray, Howard “resisted being removed from the courtroom

waiving his arms and attempting to fight off the Plaintiff’s attempts to remove him

from the courtroom and even locked his body rigid to the low rail separating the

public.” In the course of resisting, Howard “railed that he was the District

Attorney of Fulton County” and struck McCray on her shoulder and chest.

      Howard eventually was placed in handcuffs and removed from the

courtroom to an adjacent detention area. When the handcuffs were removed,

Howard “lunged aggressively toward [McCray] but was restrained by another

deputy.” Howard could have exited the detention area through another adjacent

courtroom, but “screamed” that he would only leave through the Judge’s

courtroom. Howard then “banged loudly” on the door to the Judge’s courtroom.

      Howard later held a news conference in which he specifically identified

McCray and stated that she was a “disgrace to the uniform,” that “she did not

deserve to wear the uniform,” and that she “deserves to be fired.”

      McCray’s complaint alleged that her physical injuries from the altercation

required her to go to the emergency room and seek further treatment from a

specialist for her shoulder and rotator cuff. McCray stated that she was



                                          3
temporarily disabled from her injuries and missed over three months of work.

McCray further alleged that she would suffer permanent impairment from her

injuries.

B.     McCray’s § 1983 Complaint

       McCray filed a § 1983 complaint against Howard raising two claims.

McCray’s first claim was “for physical injury” and alleged that Howard, under

color of law as the Fulton County District Attorney, “resisted, beat, and butted”

her, even though he knew or should have known his actions would pose a

substantial risk of serious harm to McCray.

       McCray’s second claim was that Howard, in retaliation against her, made

slanderous statements against her in a news conference that were “vindictive and

untrue” and damaged her reputation and ability to earn a living.

C.     Howard’s Motion to Dismiss and District Court Dismissal

       Howard filed a motion to dismiss McCray’s complaint and argued, inter alia,

that McCray failed to state a claim upon which relief could be granted.

       The district court granted Howard’s motion and dismissed McCray’s

complaint. First, the district court noted that McCray’s complaint failed to identify

what constitutional right Howard allegedly violated, but construed from her

response to Howard’s motion that she was alleging due process violations. As for



                                          4
McCray’s “physical injury” claim, the district court stated that conduct by a

governmental actor would rise to the level of a substantive due process violation

only if it could be characterized as arbitrary or conscience-shocking and

determined that the facts alleged by McCray failed to rise to this level. As for

McCray’s slander claim, the district court determined that she failed to state a

procedural due process claim because she was not discharged and thus could not

show that Howard’s comments deprived her of a liberty or property interest.2 This

appeal followed.3

                                      II. DISCUSSION

A.     Physical Injury Claim

       On appeal, McCray argues that the district court erred in dismissing her

claim that Howard violated her substantive due process rights by striking her while

he was resisting removal from the Judge’s courtroom and thus injuring her. The



       2
         The district court also determined that McCray failed to state a substantive due process
claim based on the alleged slander. On appeal, McCray makes no argument challenging this
determination, and thus we decline to address it. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d
1324, 1330 (11th Cir. 2004) (stating well-settled rule that a legal claim or argument that has not
been briefed on appeal is deemed abandoned and will not be addressed).
        In addition, after dismissing McCray’s federal claims, the district court stated that to the
extent McCray’s complaint raised state law claims, it declined to exercise supplemental
jurisdiction to hear them. We do not address this determination by the district court because
McCray has failed to challenge it on appeal as well. Id.
       3
       We review de novo the district court’s grant of a motion to dismiss for failure to state a
claim. Glover v. Liggett Group, Inc., 459 F.3d 1304, 1308 (11th Cir. 2006).

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substantive component of the Due Process Clause “protects individual liberty

against ‘certain government actions regardless of the fairness of the procedures

used to implement them.’” Collins v. City of Harker Heights, 503 U.S. 115, 125,

112 S. Ct. 1061, 1068 (1992) (quoting Daniels v. Williams, 474 U.S. 327, 331, 106

S. Ct. 662, 665 (1986)). Substantive due process applies to “those rights that are

‘fundamental’–rights that are ‘implicit in the concept of ordered liberty.’” Skinner

v. City of Miami, 62 F.3d 344, 347 (11th Cir. 1995) (quoting Palko v. Connecticut,

302 U.S. 319, 325, 58 S. Ct. 149, 152 (1937)).

      The Supreme Court has commented that it “has always been reluctant to

expand the concept of substantive due process because guideposts for responsible

decisionmaking in this unchartered area are scarce and open-ended” and that

judicial self-restraint requires the Court “to exercise the utmost care” when it is

asked to “break new ground in this field.” Collins, 503 U.S. at 125, 112 S. Ct. at

1068. Specifically, state tort law “remains largely outside the scope of substantive

due process jurisprudence.” Skinner, 62 F.3d at 347. Substantive due process

doctrine is not a “font of tort law to be superimposed upon whatever systems may

already be administered by the States.” Paul v. Davis, 424 U.S. 693, 701, 96 S. Ct.

1155, 1160 (1976).

      Thus, “even conduct by a government actor that would amount to an



                                           6
intentional tort under state law will rise to the level of a substantive due process

violation only if it also ‘shocks the conscience.’” Waddell v. Hendry County

Sheriff’s Office, 329 F.3d 1300, 1305 (11th Cir. 2003) (quoting Dacosta v.

Nwachukwa, 304 F.3d 1045, 1048 (11th Cir. 2002)). The Supreme Court has

acknowledged that “‘the measure of what is conscience-shocking is no calibrated

yard stick.’” Id. (quoting County of Sacramento v. Lewis, 523 U.S. 833, 847, 118

S. Ct. 1708, 1717 (1998)). Negligence will not violate the Due Process Clause,

and even intentional torts seldom will. Id.

      This Court applied this standard in Dacosta in concluding that the plaintiff, a

female student at Georgia Military College (“GMC”), failed to state a substantive

due process claim against the defendant, a male instructor at GMC. Dacosta, 304

F.3d at 1047-49. In Dacosta, the plaintiff alleged that the defendant ignored her

question in his class but answered similar questions from male students. Id. at

1047. When the plaintiff asked the same question, the defendant walked out of the

classroom, and the plaintiff followed him. Id. After seeing that the plaintiff had

left the classroom, the defendant darted back inside the classroom and slammed the

door in the plaintiff’s face. Id. The plaintiff held up her arm to protect herself

from the door, but her arm shattered the glass window on the door and became

lodged in the cracked pane. Id. The defendant then violently swung the door



                                           7
several times in an attempt to knock the plaintiff back from the door. Id. After this

proved unsuccessful, the defendant reached through the cracked glass pane, shoved

the plaintiff’s face, and tried to forcibly dislodge her arm from the window. Id.

This Court stated that the alleged facts in Dacosta constituted the tort of intentional

battery, but concluded that “such conduct, malicious as it may have been,” did not

amount to a federal constitutional violation. Id. at 1048.

      As in Dacosta, McCray’s complaint alleges conduct that, if true, is

unbecoming of a public official and may potentially constitute an intentional tort

such as battery under state law. However, under governing precedent, this alleged

conduct fails to rise to the level of “conscience-shocking” so as to state a claim of

substantive due process. McCray’s potential remedies for this conduct are in state

court, but not through the federal constitution under § 1983 in this Court. Id. at

1049 (“Remedies for batteries of this sort should be pursued in accordance with

state law.”). Thus, we affirm the district court’s dismissal of McCray’s claim “for

physical injury.”

B.    Slander Claim

      McCray argues that the district court erred in dismissing her claim that

Howard violated her procedural due process rights by making defamatory

statements about her in a press conference that were intended to disgrace her and



                                           8
causing her to temporarily lose her job.

       “‘The requirements of procedural due process apply only to the deprivation

of interests encompassed by the Fourteenth Amendment’s protection of liberty and

property.’” Behrens v. Regier, 422 F.3d 1255, 1259 (11th Cir. 2005) (quoting Bd.

of Regents of State Colls. v. Roth, 408 U.S. 564, 569, 92 S. Ct. 2701, 2705

(1972)). Specifically, the Supreme Court has instructed that injury to reputation,

by itself, does not constitute the deprivation of a liberty or property interest

protected by the Fourteenth Amendment. Paul, 424 U.S. at 701-02, 712, 96 S. Ct.

at 1161, 1166. In order to fall within the procedural protections of the Due Process

Clause, a plaintiff must establish more than a mere defamation claim. Id. at 706,

96 S. Ct. at 1163.

       In Paul, the Supreme Court established the “stigma-plus” test, which

requires that “a plaintiff claiming a deprivation based on defamation by the

government must establish the fact of the defamation ‘plus’ the violation of some

more tangible interest before the plaintiff is entitled to invoke the procedural

protections of the Due Process Clause.” Cannon v. City of West Palm Beach, 250

F.3d 1299, 1302 (11th Cir. 2001) (citing Paul, 424 U.S. at 701-02, 96 S. Ct. at

1161). In summarizing the requirements of the “stigma-plus” test, this Court has

stated that “‘[t]o establish a liberty interest sufficient to implicate the fourteenth



                                            9
amendment safeguards, the individual must be not only stigmatized but also

stigmatized in connection with a denial of a right or status previously recognized

under state law.’” Smith ex rel. Smith v. Siegelman, 322 F.3d 1290, 1296 (11th

Cir. 2003) (quoting Cannon, 250 F.3d at 1302-03). “In order to establish that a

deprivation of a public employee’s liberty interest has occurred without due

process of law, the employee must prove that: (1) a false statement (2) of a

stigmatizing nature (3) attending a governmental employee’s discharge (4) was

made public (5) by the governmental employer (6) without a meaningful

opportunity for employee name clearing.” Cannon, 250 F.3d at 1301.

      McCray challenges the district court’s determination that she had not been

discharged and had not alleged any other “plus” violation of a tangible interest.

McCray argues the three-and-one-half months she missed work following the

March 31, 2006 incident constituted a “constructive termination.” Assuming, as

the district court did, that McCray has a protected interest in her job, she still fails

to explain how a temporary leave of absence from work constitutes a deprivation

of a state-recognized liberty or property interest. See Cannon, 250 F.3d at 1303

(“[I]n this circuit a discharge or more is required in order to satisfy the ‘plus’

element of the stigma-plus test. A transfer or a missed promotion is not enough.”

(quotation marks omitted)). Further, McCray has also failed to allege: (1) that she



                                            10
was stigmatized “in connection with” a change in her employment status, because

McCray alleged in her complaint that she missed work because of her physical

injuries, not because of Howard’s alleged defamatory statements; or (2) that

Howard, the Fulton County District Attorney, was her employer. Thus, we affirm

the district court’s dismissal of McCray’s slander claim.

      AFFIRMED.




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