                                                                 [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                                                        JULY 3, 2012
                                            No. 12-10818
                                        Non-Argument Calendar            JOHN LEY
                                                                          CLERK
                                      ________________________

                                D.C. Docket No. 4:11-cv-00129-HLM



MARK GORDON,
CONNIE GORDON,

llllllllllllllllllllllllllllllllllllllll                         Plaintiffs - Appellees,

                                             versus

CHATTOOGA COUNTY,

llllllllllllllllllllllllllllllllllllllll                         Defendant,

SHERIFF JOHN EVERETT,
Individually and in his Official
Capacity as sheriff of Chattooga County,
AGENT KANDY DODD,
Individually and in her Official Capacity
as Investigator Chattooga County,

llllllllllllllllllllllllllllllllllllllll                         Defendants - Appellants.
                                ________________________

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

                                         (July 3, 2012)

Before MARCUS, WILSON and BLACK, Circuit Judges.

PER CURIAM:

       Plaintiffs, Mark and Connie Gordon, filed suit under 42 U.S.C. § 1983

against Defendants, Sheriff John Everett and Officer Kandy Dodd, in their

individual and official capacities alleging that Defendants violated their Fourth

and Fourteenth Amendment rights and the Georgia Constitution and conspired to

interfere with their civil rights by illegally obtaining and executing a search

warrant for Plaintiffs’ home.1 Defendants filed a motion for summary judgment on

all claims arguing that Defendants should receive qualified immunity as to the

federal claims and official immunity as to the state law claims and that there was

no evidence to support the conspiracy claims. The Gordons moved for a partial

motion for summary judgment as to Dodd’s liability under the federal claims. The

district court denied Defendants’ motion for summary judgment and granted the



       1
         In an order dated June 23, 2011, the district court dismissed Plaintiffs’ federal claims
against Defendants in their official capacities.

                                                 2
Gordons’ motion. Defendants appeal the district court’s denial of qualified and

official immunity for both Everett and Dodd, and seek review of the district

court’s decision on the conspiracy claim, asserting pendent jurisdiction.

Defendants also appeal the grant of partial summary judgment in which the district

court found Dodd liable for violating the Gordons’ Fourth Amendment rights.

After reviewing the briefs, we affirm the district court’s grant of the Gordons’

partial motion for summary judgment, denial of qualified immunity as to Dodd,

and denial of official immunity for both Defendants. We dismiss the other claims

for lack of jurisdiction.

                                    I. BACKGROUND

       In January 2011, Dodd was investigating several burglaries in Chattooga

County, Georgia. Dodd received information that two high school students were

involved in the burglaries. The students eventually confessed and stated that they

sold some of the stolen items to the Gordons at their pawn shop, Fleetwood’s

Pawn.2

       Relying on this information, Dodd informed Everett that she would seek a

search warrant for the Gordons’ pawn shop and home. Officer Shannon Goins


       2
        The students also stated that they sold some of the stolen items to the Gordons at their
home. However, this information was not included in the affidavit given to the magistrate in
support of the search warrant.

                                                 3
gave Dodd a search warrant that had previously been used to search the Gordons’

pawn shop. Using this warrant as a template, Dodd prepared a sworn affidavit in

support of a search warrant and presented this information to Magistrate Judge

Maddux. The affidavit and the search warrant, as given to Judge Maddux,

included no information regarding the Gordons’ home. When Judge Maddux was

approving the original search warrant, he mentioned to Dodd that her investigation

could lead her to search the Gordons’ home and that she should talk to another

officer who investigated a similar situation.

      After receiving the search warrant, Dodd returned to the Sheriff’s Office

and Dodd, Everett, and two other officers left in Dodd’s vehicle to execute the

warrant. In the vehicle, Everett began to read over the search warrant and noticed

that it still contained Shannon Goins’s name. Dodd then took the search warrant

from Everett, went back to her office, deleted Goins’s name, added her own name,

and took the modified search warrant to Judge Maddux for approval.

      After receiving Judge Maddux’s signature on the first amended search

warrant, Dodd returned to her car where the other officers were waiting for her.

Everett began looking over the search warrant again, and noticed that the

Gordons’ home address was not included. Everett asked Dodd if she intended to

also search the Gordons’ home; Dodd answered in the affirmative and stated she

                                          4
would fix the warrant. All of the officers then left the vehicle while Dodd

corrected the warrant for the second time.

      Dodd returned to her office with another officer.3 That officer added the

Gordons’ home address to the warrant and printed out the new page. Dodd then

removed and shredded the page from the first amended search warrant and

attached the altered page with the Gordons’ home address to the page with Judge

Maddux’s signature. The second amended search warrant was never presented to

or approved by Judge Maddux. The testimony differs as to the amount of time it

took Dodd to alter the search warrant, but reflects that it took between five and

thirty minutes. During this time, Everett was in his office.

      Dodd then gathered the officers again and told them she had added the

address to the search warrant. That group then executed the second amended

search warrant—first searching Fleetwood’s Pawn, then, several hours later, the

Gordons’ home.

      Judge Maddux later learned that Defendants searched the Gordons’ home.

When Judge Maddux asked whether Defendants had added anything to the search

warrant, Everett replied, “We added his address.” Judge Maddux then informed

Defendants that there was no information in the affidavit or search warrant to


      3
          This officer is not a party to the suit.

                                                     5
permit the search of the residence and that everything seized pursuant to the

second amended search warrant had to be returned.

                               II. JURISDICTION

      Generally, the denial of a motion for summary judgment is not a final order

subject to immediate appeal. Gray ex rel. Alexander v. Bostic, 458 F.3d 1295,

1303 (11th Cir. 2006). Qualified immunity is “an entitlement not to stand trial . . .

when a government actor’s discretionary conduct does not violate clearly

established statutory or constitutional rights.” Koch v. Rugg, 221 F.3d 1283, 1294

(11th Cir. 2000) (citation and quotation marks omitted). A denial of qualified

immunity on a motion for summary judgment is immediately appealable when it

“concerns solely the pure legal decision of (1) whether the implicated federal

constitutional right was clearly established and (2) whether the alleged acts

violated that law.” Koch, 221 F.3d at 1294 (emphasis omitted) (citing Johnson v.

Jones, 515 U.S. 304, 313, 115 S. Ct. 2151, 2156 (1995)). The appeal must present

“a legal question concerning a clearly established federal right that can be decided

apart from considering sufficiency of the evidence.” Id.

      Here, Dodd contends that it is not clearly established constitutional law that,

absent exigent circumstances, an officer must obtain a search warrant from a

neutral and detached judicial officer to search a home. Therefore, we have

                                          6
jurisdiction to hear Dodd’s appeal. However, Everett only contends that he did

not personally participate in Dodd’s alleged unconstitutional conduct because

Everett did not know that Dodd improperly changed the search warrant. This

argument requires us to consider the sufficiency of the evidence only, and not

whether Everett violated a clearly established federal right. Therefore, we do not

have jurisdiction to hear Everett’s appeal.4

                             III. STANDARD OF REVIEW

       We review a district court’s grant of summary judgment and denial of

qualified immunity de novo, viewing all evidence and drawing all reasonable

inferences in favor of the non-moving party. Owen v. I.C. Sys., Inc., 629 F.3d

1263, 1270 (11th Cir. 2011) (grant of summary judgment); Gray, 458 F.3d at 1303

(denial of qualified immunity). Summary judgment is appropriate where “there is

no genuine issue as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S.


       4
         Defendants’ appeal of the denial of summary judgment as to Plaintiffs’ conspiracy claim
under § 1983 relies on Defendants’ contention that because Everett did not know of Dodd’s
actions he could not agree to them, and so there was no basis for a conspiracy claim. Because we
do not have jurisdiction to decide Everett’s appeal, we cannot exercise pendent jurisdiction over
the conspiracy claim. See Harris v. Bd. of Educ., 105 F.3d 591, 594 (11th Cir. 1997) (per
curiam) (finding that “pendent appellate jurisdiction is limited to questions that are inextricably
interwoven with an issue properly before the appellate court.” (internal quotation marks
omitted)). To the extent that Everett seeks qualified immunity because Dodd’s actions did not
violate clearly established constitutional and federal law this argument is without merit, as we
discuss below.

                                                7
317, 322, 106 S. Ct. 2548, 2552 (1986).

                          IV. QUALIFIED IMMUNITY

      An officer is not entitled to qualified immunity when, acting in his

discretionary capacity, he violates clearly established constitutional or federal law.

See Koch, 221 F.3d at 1294. When executing the search warrant, Dodd was acting

in her discretionary capacity as a law enforcement officer; therefore, our analysis

focuses on whether Dodd violated clearly established law. See id. We decide

whether the alleged facts show a violation of clearly established law by “(1)

defining the official’s conduct, based on the record and viewed most favorably to

the non-moving party, and (2) determining whether a reasonable public official

could have believed that the questioned conduct was lawful under clearly

established law.” Id. at 1295–96.

      It is clearly established constitutional and federal law that a law

enforcement officer may not search a home, absent exigent circumstances, unless

he has a warrant that has been fully approved by a neutral and detached judicial

officer. See, e.g., Groh v. Ramirez, 540 U.S. 551, 564, 124 S. Ct. 1284, 1294

(2004) (“No reasonable officer could claim to be unaware of the basic rule, well

established by our cases, that, absent consent or exigency, a warrantless search of

the home is presumptively unconstitutional.”); Payton v. New York, 445 U.S. 573,

                                          8
586, 100 S. Ct. 1371, 1380 (1980) (finding warrentless searches of homes

“presumptively unreasonable”); Johnson v. United States, 333 U.S. 10, 14, 68 S.

Ct. 367, 369 (1948) (“When the right of privacy must reasonably yield to the right

of search is, as a rule, to be decided by a judicial officer, not by a policeman or

Government enforcement agent.”); O’Rourke v. Hayes, 378 F.3d 1201, 1208–09

(11th Cir. 2004) (finding that a warrantless search without exigency violates

clearly established rights, even in the absence of case law with factually similar

circumstances).

      Dodd used a forged search warrant to search Plaintiffs’ home, and she does

not now attempt to justify her error by claiming an exception to the warrant

requirement, nor could she. Furthermore, her claim of ignorance of basic Fourth

Amendment jurisprudence does not require us to grant her qualified immunity.

The qualified immunity analysis asks “whether it would be clear to a reasonable

officer that his conduct was unlawful in the situation he confronted,” Saucier v.

Katz, 533 U.S. 194, 202, 121 S. Ct. 2151, 2156 (2001) (emphasis added)

abrogated on other grounds by Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808

(2009), not whether the officer subjectively believed his actions to be lawful, see

Harlow v. Fitzgerald, 457 U.S. 800, 817–18, 102 S. Ct. 2727, 2738 (1982)

(adopting an “objective reasonableness” standard for qualified immunity inquiry);

                                           9
Whittier v Kobayashi, 581 F.3d 1304, 1310 (11th Cir. 2009) (per curiam) (same).

Therefore, we affirm the district court’s denial of qualified immunity as to Dodd.

                            V. OFFICIAL IMMUNITY

      We have jurisdiction to review an interlocutory appeal from the denial of

official immunity under Georgia law. See Hoyt v. Cooks, 672 F.3d 972, 980–81

(11th Cir. 2012). We review the district court’s denial of official immunity de

novo. Id. Official immunity protects Georgia state officers and employees from

liability. However, the Georgia Constitution permits state officers and employees

to be held liable for damages “if they act with actual malice or with actual intent to

cause injury in the performance of their official functions.” Ga. Const. art. I § II ¶

IX(d). It is undisputed that Defendants were performing their official duties when

executing the search warrant. Thus, the Gordons must show that Defendants were

acting with actual malice or intent to cause injury for Defendants to not be

protected by official immunity. See Tant v. Perdue, 629 S.E.2d 551, 553 (Ga. Ct.

App. 2006).

      Georgia case law defines “actual malice” as “express malice, i.e., a

deliberate intention to do wrong, and does not include implied malice, i.e., the

reckless disregard for the rights or safety of others.” Murphy v. Bajjani, 647

S.E.2d 54, 60 (Ga. 2007) (quotations and citations omitted). A deliberate intention

                                          10
to do wrong is “the intent to cause the harm suffered by the plaintiffs.” Id.

Viewing the facts in the light most favorable to the Gordons, we agree with the

district court that there are genuine issues of fact regarding whether Dodd acted

with actual malice and whether Everett knew of Dodd’s actions. For example,

Dodd knew that she needed to have the magistrate approve the name change, but

now claims that she did not know that she needed the magistrate’s approval to add

an entirely new location to be searched. Additionally, there is contradictory

testimony as to whether Everett read the affidavit, which did not include any

description of the Gordons’ home, and there is contradictory testimony as to how

much time it took Dodd to amend the warrant.

                                VI. SECTION 1983

      Section 1983 requires plaintiffs to first show that they have been “deprived

of a right secured by the Constitution and the laws of the United States” and

secondly that the officers deprived them of this right acting under color of state

law. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S. Ct. 1729, 1733 (1978)

(quotation marks omitted). Dodd was acting under the color of state law when she

executed the invalid search warrant. Furthermore, by knowingly executing an

invalid search warrant, Dodd clearly deprived the Gordons of their Fourth

Amendment rights. See Groh, 540 U.S. at 558–60, 124 S. Ct. at 1290–91.

                                         11
Therefore, we affirm the district court’s grant of the Gordons’ partial motion for

summary judgment as to Dodd’s liability on the federal claims.

                               VII. CONCLUSION

      We affirm the district court’s denial of qualified immunity for Dodd and

official immunity for Dodd and Everett. We also affirm the grant of the Gordons’

partial motion for summary judgment regarding Dodd’s liability for the federal

claims. We dismiss the interlocutory appeal seeking qualified immunity for

Everett for lack of jurisdiction, as well as the interlocutory appeal regarding the

conspiracy claim under § 1983.

      AFFIRMED IN PART AND DISMISSED IN PART.




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