              Case: 16-14869     Date Filed: 06/09/2017   Page: 1 of 9


                                                             [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 16-14869
                             Non-Argument Calendar
                           ________________________

                    D.C. Docket No. 2:14-cv-00088-JRH-RSB



DAWN M. KICKLIGHTER,

                                                                Plaintiff-Appellant,

                                        versus

MCINTOSH COUNTY BOARD OF
COMMISSIONERS,

                                                                         Defendant,

SAUNDRA " BOOTIE" GOODRICH,
In her official capacity as Clerk of Court
for McIntosh County,

                                                               Defendant-Appellee.

                           ________________________

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

                                   (June 9, 2017)
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Before JULIE CARNES, JILL PRYOR and BLACK, Circuit Judges.

PER CURIAM:

       Dawn Kicklighter appeals the district court’s grant of summary judgment in

favor of defendants McIntosh County Board of Commissioners (the County) and

Saundra Goodrich, in her official and individual capacities as Clerk of the Superior

Court of McIntosh County, Georgia. She contends that the district court erred in

granting summary judgment in favor of the County on her employment-based

claims on the ground that she was not an employee of the County. She also

asserts the district court erred in granting summary judgment in favor of Goodrich

in her official capacity because Goodrich was not entitled to Eleventh Amendment

immunity and reinstatement was an available remedy. After review,1 we affirm.

                                      I. DISCUSSION

A. Claims Against the County

       Kicklighter’s employment-based claims against the County fail if there was

no employer-employee relationship. See Peppers v. Cobb County, Ga., 835 F.3d

1289, 1295–96 (11th Cir. 2016) (noting, in the context of Title VII and the Equal

Pay Act, that Congress’ definition “intended to ‘describe the conventional master-

servant relationship as understood by common-law agency doctrine.’” (quoting
       1
         We review a grant or denial of summary judgment de novo. Young v. City of Augusta,
59 F.3d 1160, 1170 (11th Cir. 1995). We review dismissals based upon Eleventh Amendment
immunity de novo. Ass’n for Disabled Ams., Inc. v. Fla. Int’l Univ., 405 F.3d 954, 956 (11th Cir.
2005).


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Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 444–45

(2003)); Watson v. Drummond Co., 436 F.3d 1310, 1316 (11th Cir. 2006) (stating

that Eleventh Circuit case law uses the same test for the Fair Labor Standards Act,

the Equal Pay Act, and the Family and Medical Leave Act); Mason v. Stallings, 82

F.3d 1007, 1009 (11th Cir. 1996) (“The definition of ‘employer’ in the [Adults

with] Disabilities Act is like the definitions in Title VII of the 1994 Civil Rights

Act . . . .”).

        In Peppers, a retired criminal investigator for a county district attorney’s

office filed employment-based claims against the county in which he served. 835

F.3d at 1292. The district court granted summary judgment in favor of the county

on the ground that it was not the plaintiff’s employer. See id. at 1292–95. On

appeal, we noted that, pursuant to the state constitution and statutes, the county

“lacked the authority to supervise, hire, or fire employees of the district attorney;”

rather, these functions were performed by the district attorney. Id. Thus, we held

that the county was not the plaintiff’s employer “even though it provided

paymaster, administrative, and budgetary functions for the district attorney’s

office.” Id. at 1301.

        Goodrich, as clerk of the superior court, was a constitutionally-elected

officer. See Ga. Const. art. IX, § 1, para. III(a). The Georgia Supreme Court has

stated that employees of constitutionally-elected officers of a county are ordinarily


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considered employees of the elected officer, not the county. Boswell v. Bramlett,

549 S.E.2d 100, 102 (Ga. 2001). In addition, Goodrich had the power to appoint

Kicklighter as her deputy clerk, and the County did not have the authority to take

any action affecting Goodrich’s appointment or management of Kicklighter. See

O.C.G.A. § 15-6-59(b); see Ga. Const. art. IX, § 2, para. I(c)(1). Accordingly,

Kicklighter was an employee of Goodrich, not the County, and her employment-

based claims against the County must fail.2 See Boswell, 549 S.E.2d at 102;

Peppers, 835 F.3d at 1301.

       In addition, because Kicklighter was not employed by the County, the

County could not be held liable for Kicklighter’s § 1983 claims unless she

identified some policy or custom that caused her alleged injury, which she has not.

See Grech v. Clayton Cty., 335 F.3d 1326, 1329 (11th Cir. 2003).

B. Claims Against Goodrich in Her Official Capacity

       The Eleventh Amendment bars federal courts from entertaining suits against

a state without the state’s consent. Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir.

2003). The Eleventh Amendment applies not only to the state, but to a defendant

       2
          Kicklighter makes a collateral estoppel argument against the County based on
abbreviated references to her state court unemployment case. However, that unreported opinion
did not decide the question of whether the County was her employer under any federal statute.
Moreover, Kicklighter has not attempted to show any of the other elements of collateral estoppel
exist. See Cmty. State Bank v. Strong, 651 F.3d 1241, 1264 (11th Cir. 2011) (“A party seeking to
assert collateral estoppel under Georgia law must demonstrate that (1) an identical issue, (2)
between identical parties, (3) was actually litigated and (4) necessarily decided, (5) on the merits,
(6) in a final judgment, (7) by a court of competent jurisdiction.”).

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who acts as an “arm of the state.” Id. The question here is whether Goodrich was

acting as an arm of the state in her official capacity when she exercised her power

to terminate Kicklighter.3 Id. In Manders, we set forth the following four-factor

test for determining whether an entity is an arm of the state: “(1) how state law

defines the entity; (2) what degree of control the State maintains over the entity;

(3) where the entity derives its funds; and (4) who is responsible for judgments

against the entity.” Id. at 1309. We look to state law to determine the relationship

of the entity to the state and the county. Id.

       1. First factor: how state law defines the entity

       The first Manders factor weighs in favor of immunity when the authority to

engage in the function at issue is derived from the state. Pellitteri v. Prine, 776

F.3d 777, 780 (11th Cir. 2015). The Georgia Constitution states that superior court

clerks “shall be elected by the qualified voters of their respective counties” and

gives the legislature the power to set the clerks’ “qualifications, powers, and

duties.” Ga. Const. art. IX, § 1, para. III(a). Accordingly, the legislature has

enacted statutes granting various powers to and imposing duties on superior court

clerks. See O.C.G.A. §§ 15-6-60, 15-6-61. Clerks are also granted by statute the

power to appoint deputies. O.C.G.A. § 15-6-59(b). Further, the Georgia

       3
         Kicklighter has not briefed her theory of individual liability before this Court, and thus
her argument is abandoned. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th
Cir. 2004) (“A legal claim or argument that has not been briefed on appeal is deemed abandoned
and its merits will not be addressed.”).
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Constitution also prohibits counties from taking action that affects “any elective

county office…or the personnel thereof.” Ga. Const. art. IX, § 2, para. I(c)(1). As

a result, the first Manders factor weighs in favor of finding that Goodrich was

acting as an arm of the state when exercising her hiring and firing power, much

like the sheriff in Pellitteri.

       Although Kicklighter cites a Georgia Court of Appeals case that classified

superior court clerks as county officers, the court based its reasoning that clerks

were county officials primarily on the label that they were given. See Tostensen v.

State, 379 S.E.2d 9, 10 (Ga. Ct. App. 1989). However, we have stated that being

labeled as a “county officer” is not determinative in Eleventh Amendment

immunity cases. See Manders, 338 F.3d at 1312. Rather, the dispositive question

is the source of a defendant’s authority to exercise the functions at issue. See id. at

1308. As discussed above, that inquiry returns a result in favor of Goodrich.

       2. Second factor: what degree of control the state maintains over the entity

       The second Manders factor asks whether Georgia law vests control of the

clerk of the superior court in the state or rather with the county. In the present

case, this factor also weighs in favor of immunity. Georgia law sets qualifications

and training for superior court clerks, a factor we held in Pellitteri weighed in

favor of immunity in a case in which a sheriff’s deputy brought employment-

related claims against the sheriff. See O.C.G.A. § 15-6-50; Pellitteri, 776 F.3d at


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781–82 (examining state-mandated training in weighing second factor). In

addition, the Governor has the authority to appoint a committee to investigate the

clerk’s criminal charges, alleged misconduct, or incapacity to perform the

functions of the office, which can result in the superior court clerk’s removal.

O.C.G.A. § 15-6-82. And again, counties are barred by the Georgia Constitution

from taking actions which affect the operation of the clerk’s office or its personnel.

See Ga. Const. art. IX, § 2, para. I(c)(1). Control of the clerk, then, is vested in the

state, not the county. Accordingly, the second Manders factor weighs in favor of

immunity for Goodrich.

       3. Third factor: where the entity derives its funds

       “The third factor in the Eleventh Amendment analysis is where the entity

derives its funds.” Manders, 338 F.3d at 1323. In the present case, this factor also

tilts in favor of finding that Goodrich was an arm of the state. Although the county

funds the clerk’s office and pays the clerks’ salaries, it is required by state law to

do so. See O.C.G.A. §§ 15-6-87, 15-6-88; see also Pellitteri, 776 F.3d at 782.

Moreover, the county is prohibited from taking actions that affect clerks or their

personnel. See Ga. Const. art. IX, § 1, para. I(c)(1); see also Pellitteri, 776 F.3d at

782.

       In Pellitteri, we noted that a county “bear[ing] the major burden of providing

funds to the sheriff’s office, including the salaries of his deputies” was not


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dispositive. 776 F.3d at 782. Rather, in that case the third Manders factor weighed

in favor of immunity, because the state of Georgia required counties to set the

sheriff’s total budget and the county could not dictate the way the sheriff used the

budget. See id.; see also Ross v. Jefferson Cty. Dep’t of Health, 701 F.3d 655, 660

(11th Cir. 2012). The same reasoning applies in Goodrich’s analogous situation.

      4. Fourth factor: who is responsible for judgments against the entity

      The parties concede the fourth factor weighs against immunity. However,

when the fourth factor is the only one weighing against finding that the entity is an

arm of the state, as here, the entity will, on balance, be entitled to Eleventh

Amendment immunity. See Pellitteri, 776 F.3d at 783. Accordingly, Goodrich is

entitled to immunity.

C. Kicklighter’s Claim for Reinstatement

      Although Eleventh Amendment immunity bars claims for monetary

damages against an arm of the state, it does preclude claims for prospective

injunctive relief, such as reinstatement, against defendants in their official

capacities. Cross v. Ala. Dep’t of Mental Health & Mental Retardation, 49 F.3d

1490, 1503 (11th Cir. 1995).

      Rule 25 of the Federal Rules of Civil Procedure states that “an action does

not abate when a public officer who is a party in an official capacity dies, resigns,

or otherwise ceases to hold office while the action is pending.” Fed. R. Civ. P.


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25(d). However, we have upheld the district court’s decision to deny a plaintiff the

remedy of reinstatement where the defendant public official was replaced by a new

official. See Lucas v. O’Loughlin, 831 F.2d 232, 236 (11th Cir. 1987). There is no

dispute that Goodrich retired and a new superior court clerk had replaced her.

Kicklighter’s powers and duties as deputy clerk ended when Goodrich left office.

See O.C.G.A. § 15-6-59(b). And because the new clerk of the superior court could

appoint her own deputies, she would not be required to accept or keep Kicklighter

as a deputy. See id. Even if Kicklighter were reinstated, the new clerk “could

terminate [Kicklighter] the same day on the ground that [the new clerk] preferred

the person whom he [or she] had already appointed.” Lucas, 831 F.2d at 236. As

such, the district court did not err in determining reinstatement was no longer an

available remedy.

                                II. CONCLUSION

      For the foregoing reasons, the judgment of the district court is

      AFFIRMED.




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