PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

J. RONNIE JACKSON,
Plaintiff-Appellee,

v.
                                                                      No. 96-1273
CHARLES H. LONG, Individually, and
in his official capacity as Sheriff of
Buncombe County,
Defendant-Appellant.

TERESA A. PENLAND,
Plaintiff-Appellee,

v.
                                                                      No. 96-1274
CHARLES H. LONG, Individually, and
in his official capacity as Sheriff of
Buncombe County,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CA-94-137-T, CA-94-119-T)

Argued: September 25, 1996

Decided: December 17, 1996

Before RUSSELL, NIEMEYER, and MOTZ, Circuit Judges.

_________________________________________________________________

Reversed and remanded by published opinion. Judge Niemeyer wrote
the opinion, in which Judge Russell concurred. Judge Motz concurred
in the judgment only.
COUNSEL

ARGUED: William Alfred Blancato, BENNETT & BLANCATO,
L.L.P., Winston-Salem, North Carolina, for Appellant. Sean Patrick
Devereux, WHALEN, HAY, PITTS, HUGENSCHMIDT, MASTER
& DEVEREUX, P.A., Asheville, North Carolina; C. Frank Gold-
smith, Jr., GOLDSMITH, GOLDSMITH & DEWS, Marion, North
Carolina, for Appellees.

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

When Buncombe County (North Carolina) Sheriff Charles H. Long
received a complaint from a female inmate in the Buncombe County
Detention Center that she had been raped by a jailer, Sheriff Long
conducted a brief investigation and then referred the matter to the
North Carolina Bureau of Investigation for a criminal investigation.
While the criminal investigation was continuing, Sheriff Long dis-
missed both the accused jailer and the matron on duty on the floor
where the incident allegedly occurred. He also issued a press release
announcing his action, and in further public comments, he stated that
if the dismissed jailers were cleared, they could reapply for their jobs.
Criminal charges filed against the jailer accused of the rape were ulti-
mately dropped, and the matron on duty was never criminally
charged. Both, however, appeared to have been violating detention
center policy at the time of the alleged incident.

Both dismissed employees filed actions against Sheriff Long under
42 U.S.C. § 1983, alleging that they were deprived of their property
interests in their employment and their liberty interests in their reputa-
tions without due process of law in violation of the Fourteenth
Amendment. They also alleged state law claims. Sheriff Long filed a
motion for summary judgment in which he asserted, among other
things, qualified immunity and immunity under the Eleventh Amend-
ment. The district court denied the motion and this interlocutory
appeal followed.

                     2
Because we find that Sheriff Long's conduct was shielded by quali-
fied immunity and that the dismissed employees failed to assert a suf-
ficient claim against him in his official capacity, we reverse and
remand these actions to the district court with instructions to dismiss
the § 1983 claims filed against Sheriff Long.

I

When inmate Sharon Brock returned to the Buncombe County
Detention Center from work release on the evening of July 16, 1993,
she complained to the matron on duty that on the previous evening
she had been raped in her cell by Ronnie Jackson, the supervising
jailer on duty at the time of the alleged assault. Inmate Brock showed
the matron bruises on her pelvic region and scrapes on her chest and
labia which she claimed were produced during the attack. The matron
contacted her supervisor, and the Sheriff's Department immediately
began an investigation. When Sheriff Long learned of the allegations
the next morning, he suspended Jackson and another jailer, Teresa
Penland, with pay, pending the results of the investigation. Penland
was the matron on duty on the floor at the time of the alleged assault.

Jackson denied any sexual contact with inmate Brock, and Penland
denied any knowledge of an assault, but both cooperated with the
Sheriff's investigation, giving accounts of their interactions with
Brock on the day in question. While some details of their stories dif-
fered, both stated that Brock was upset and periodically tearful on
July 15, spending varying periods out of her cell on the telephone try-
ing to arrange transportation for her work release the following day.
Both also acknowledged that Jackson had brought inmate Brock some
food and that another male jailer, Kelce Lytle, had accompanied Jack-
son to Brock's floor on that same day. Jackson and Lytle both
reported that Penland had escorted Lytle to see some inmates, leaving
Jackson unaccompanied on the women's floor for some period of
time, in violation of detention center policy.

Several days after commencement of the departmental investiga-
tion, Sheriff Long requested that the North Carolina State Bureau of
Investigation ("SBI") undertake an independent investigation into
potential criminal violations. When the SBI began its investigation,
the Sheriff's Department ceased its own. Although no one in the Sher-

                    3
iff's Department participated in the SBI investigation, the SBI briefed
Sheriff Long on its progress. After Sheriff Long learned that Jackson
had failed a polygraph test when asked if he had ever had sexual con-
tact with Brock and that Brock's own polygraph had been negative,
but inconclusive, he terminated the employment of both Jackson and
Penland on August 5, 1993. He refused to give any reason for the ter-
minations, stating that these jailers served at his pleasure and it was
his pleasure to terminate them.

Upon dismissing Jackson and Penland, Sheriff Long issued a press
release as follows:

           As a result of an internal investigation by the Buncombe
          County Sheriff's Department, two detention officers have
          been dismissed from employment at the Buncombe County
          Detention Center.

           The investigation was ordered by Sheriff Charles H. Long
          after allegations were made of an alleged assault on an
          inmate in the custody of the Buncombe County Jail.

           Sheriff Long has requested that the State Bureau of Inves-
          tigation conduct an independent investigation into any pos-
          sibl[e] criminal violation arising from this incident.

           Further information regarding this matter will not be
          released at this time, pending investigation.

Long also made some public statements about the matter during the
next several days. He told The Asheville Citizen-Times that the jailers
were fired for violation of an unspecified departmental policy. The
article also attributed to Long the following statements:

           I did what was best for the department . . . . Any conduct
          over there (jail) will not be tolerated if it will put me or the
          county in peril.

Television station WLOS attributed the following to Sheriff Long:

                     4
           Any time we have an assault, or anything that might be
          of an unlawful nature it's a matter of concern . . . we have
          a high liability in the detention center and we have a lot of
          worry . . . we don't like for these things to happen.

WLOS reported Sheriff Long to have said that the jailers could reap-
ply for their jobs if they were cleared of any wrongdoing.

News reports contained information from other sources, including
the plaintiffs themselves, revealing their names and the fact that the
nature of the assault was sexual. Jackson himself apparently informed
reporters that he had failed a polygraph test.

Almost two weeks after being fired, Penland sent a letter to Sheriff
Long requesting a "civilian board hearing." In her letter, postmarked
August 18, 1993, Penland alleged that her August 5 termination was
motivated by personal and not "occupational" reasons. Counsel for
Sheriff Long informed Penland that she was not entitled to any appeal
because she had missed the five-day deadline for disciplinary appeals
prescribed by departmental Policies and Procedures. Moreover, coun-
sel advised Penland that there was no provision for appeal of a Sher-
iff's decision to terminate employment. He informed Penland,
nevertheless, that her dismissal would be automatically reviewed by
the "Sheriff's Review Board" at its next regular meeting. Jackson
never requested a hearing of any kind because, as he explained, Pen-
land had advised him of the letter she had received in response to her
request for a hearing.

In May 1994, Jackson was indicted for second degree rape and sex-
ual activity by a custodian. In the course of pursuing his criminal
defense, Jackson obtained numerous psychiatric records of inmate
Brock, revealing a history of mental illness. The records disclosed
that Brock had previously made unsubstantiated accusations of sexual
abuse against a variety of relatives, guardians, and acquaintances,
although her father did plead no contest to charges of sexual abuse.
After revelation of these documents, state prosecutors dismissed all
criminal charges against Jackson.

Jackson and Penland each filed actions against Sheriff Long, indi-
vidually and in his official capacity, under 42 U.S.C. § 1983 and

                    5
under state law. They alleged that in firing them, Sheriff Long had
deprived them of their property interest in their employment and their
liberty interest in their reputations without due process of law in vio-
lation of the Fourteenth Amendment and of a parallel state constitu-
tional provision. They also alleged under state law that Sheriff Long
had defamed them in making his comments to the press. The com-
plaints did not separately allege constitutional tort claims against
Sheriff Long in his official capacity and did not allege that any regu-
lation, policy, or practice of the Sheriff's Office formed a basis for the
conduct they alleged was illegal.

Sheriff Long filed a motion for summary judgment, contending (1)
that the plaintiffs did not have a property interest in their employment,
(2) that the plaintiffs were not deprived of any liberty interest since
all public statements were true and neither plaintiff had ever requested
a name-clearing hearing, (3) that the plaintiffs failed as a matter of
law to state a claim against him in his official capacity, (4) that in his
official capacity he was entitled to Eleventh Amendment immunity,
and (5) that in his individual capacity he was entitled to qualified
immunity.1

In denying Long's motion in all respects, the district court denied
Long's claims of immunity. It concluded that 1973 North Carolina
Session Law 297 granted Jackson and Penland a property interest in
continued employment; that Sheriff Long's statements to the press
"clearly suggest[ ] that the Plaintiffs were involved in an assault on
an inmate" and therefore they "were falsely stigmatizing"; that the
court had "insufficient information" to determine the Eleventh
Amendment immunity issue or whether the complaint alleged any
custom or policy sufficient to state a claim against Long in his official
capacity; and that the constitutional rights that Long allegedly vio-
lated were clearly established, but that factual issues existed "as to the
Defendant's actual conduct, and as to the reasonableness of this con-
duct." The court's opinion did not identify those factual issues.
_________________________________________________________________

1 Sheriff Long also moved for summary judgment on the state law
claims which are not before us.

                     6
II

As a threshold matter, we must address Jackson's and Penland's
contention that we are without jurisdiction to decide these interlocu-
tory appeals. Although interlocutory rulings on qualified immunity
are ordinarily immediately appealable as collateral orders, see
Mitchell v. Forsyth, 472 U.S. 511, 525 (1985), Jackson and Penland
argue that in this case the district court concluded that disputed issues
of fact preclude determination of the qualified immunity defense and
that therefore under Johnson v. Jones, 115 S. Ct. 2151 (1995), these
appeals should be dismissed.

In Johnson, the court held that the district court's determination of
whether a fact was disputed for purposes of summary judgment was
not appealable. The district court had found that the plaintiff's exces-
sive force claim was clearly established and that the plaintiff's facts,
if proven, would support a finding that the defendants violated the
plaintiff's constitutional rights. It concluded, however, that those facts
were in dispute. On appeal the defendants argued that the record con-
tained "not a scintilla of evidence" consistent with the plaintiff's
claims. The Seventh Circuit, noting that the issue on appeal was
whether the district court was correct in finding a factual dispute,
declined to review the district court's order denying summary judg-
ment. Affirming the Seventh Circuit, the Supreme Court observed
that appellate courts, which are not as well equipped as district courts
to review the issue of whether factual disputes exist, should not
review interlocutory district court orders making that finding. The
Court accordingly held that orders determining "whether or not the
pretrial record sets forth a `genuine' issue of fact for trial" are not
appealable. Johnson, 115 S. Ct. at 2159.

The Johnson principle is limited to the circumstance where the dis-
pute on appeal is whether a factual dispute was created. If, however,
resolution of the factual dispute is immaterial to whether immunity
should be afforded, the underlying legal question about whether
immunity is to be afforded remains and may be appealed under
Mitchell as a collateral order. See 472 U.S. at 530; see also Behrens
v. Pelletier, 116 S. Ct. 834, 842 (1996) ("Denial of summary judg-
ment often includes a determination that there are controverted issues
of material fact . . . and Johnson surely does not mean that every such

                     7
denial of summary judgment is nonappealable"). As the Court in
Behrens explained, orders denying summary judgment are still
appealable under Mitchell "when they resolve a dispute concerning an
`abstract issu[e] of law' relating to qualified immunity . . . typically,
the issue whether the federal right allegedly infringed was `clearly
established.'" Id. (citations omitted; alterations in original).

In the case before us, the district court was troubled by whether
Jackson and Penland actually participated in the conduct for which
the announced investigation placed them under suspicion. It con-
cluded that factual questions existed about whether the assault
occurred and whether, when charges were dropped, the plaintiffs were
stigmatized. While these may be disputed factual questions, they are
not material to the abstract question of Sheriff Long's immunity,
which depends on whether Sheriff Long violated clearly established
constitutional rights and whether he reasonably should have so
known. The facts which are relevant for determining whether Sheriff
Long has immunity must be taken from the viewpoint of Sheriff Long
at the time he terminated the jailers and not of an independent fact-
finder looking later in hindsight at whether the assault actually
occurred or whether Sheriff Long proved to be right in his decisions.
No factual question was raised about whether Sheriff Long reason-
ably believed that sufficient facts existed to initiate an investigation
or that he could, as a matter of state law, dismiss Jackson and Penland
as at-will employees.

Since the facts relevant to the nature of the complaint presented to
Sheriff Long and his response are not in dispute, we are left with the
legal questions of whether Sheriff Long's response violated clearly
established constitutional rights and, if so, whether Sheriff Long rea-
sonably should have known that it did. This posture of undisputed
facts about Sheriff Long's belief is precisely that which enables us to
resolve immunity, as we should, before trial "at the earliest possible
stage of a litigation." See Anderson v. Creighton, 483 U.S. 635, 646
n.6 (1987). This is important because qualified immunity is "an enti-
tlement not to stand trial or face the other burdens of litigation."
Behrens, 116 S. Ct. at 838 (quoting Mitchell , 472 U.S. at 526).

While Sheriff Long's challenge to the district court's interlocutory
ruling denying him Eleventh Amendment immunity on the alleged

                     8
claim that he is liable in his official capacity would also be appealable
at this time, see Puerto Rico Aqueduct and Sewer Auth. v. Metcalf &
Eddy, Inc., 506 U.S. 139 (1993), we do not reach the Eleventh
Amendment immunity because, as we explain below, no claims are
alleged against Sheriff Long in his official capacity.

III

On his appeal, Sheriff Long contends that he is entitled to qualified
immunity for the § 1983 claims that seek damages from him in his
individual capacity. This contention raises the legal questions of
whether Sheriff Long violated any clearly established constitutional
rights of plaintiffs in responding to the inmate's complaint against
them and, if the law clearly established those rights, whether a reason-
able official in Sheriff Long's position would have known of those
rights. Because these are questions of law, we review them de novo.
See Pritchett v. Alford, 973 F.2d 307, 313 (4th Cir. 1992).

Defining qualified immunity for public officials, the Supreme
Court has stated that "government officials performing discretionary
functions, generally are shielded from liability for civil damages inso-
far as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). "To deter-
mine whether a federal right was clearly established at the time of the
defendants' alleged conduct, we focus `not upon the right at its most
general or abstract level, but at the level of its application to the spe-
cific conduct being challenged.'" Zepp v. Rehrmann, 79 F.3d 381, 385
(4th Cir. 1996) (quoting Pritchett, 973 F.2d at 312).

Accordingly, to determine whether Sheriff Long should have
known that he was violating Jackson and Penland's constitutional
rights, we consider first whether those rights clearly existed and, if so,
then whether a reasonable officer in Long's position would have
appreciated he was violating those rights. Pritchett, 973 F.2d at 312.
Obviously, if no constitutional right existed, the inquiry ends, as Sher-
iff Long could not have known of a right that did not exist.

A

In this case, the dismissed jailers contend that in firing them with-
out a hearing, Sheriff Long deprived them of a constitutionally pro-

                     9
tected property right in their public employment as jailers. While
Sheriff Long does not contend that he in fact provided the jailers a
hearing, he claims that the jailers were at-will employees who served
at his pleasure and therefore cannot claim a property interest in their
employment. Resolution of that dispute is determined by reference to
state law. See Bishop v. Wood, 426 U.S. 341, 344-45 (1976).

Under North Carolina law, employment is generally presumed to
be "at-will" in the absence of a contract establishing a definite
employment duration or a statute or ordinance restricting an employ-
ee's discharge. See Pittman v. Wilson County, 839 F.2d 225, 227 (4th
Cir. 1988). Rather than restricting the discharge of sheriff's employ-
ees, including jailers, North Carolina law explicitly grants sheriffs
exclusive power over employment decisions. See N.C. Gen. Stat.
§§ 153A-103 ("Each sheriff . . . elected by the people has the exclu-
sive right to hire, discharge, and supervise the employees in his
office"). And North Carolina courts have interpreted this statute to
deny sheriffs' employees any property right in their employment. See
Peele v. Provident Mut. Life Ins. Co., 368 S.E.2d 892, 894-95 (N.C.
App.), appeal dismissed, 323 N.C. 366, 373 S.E.2d 547 (1988).
Accord, Hughes v. Bedsole, 913 F. Supp. 420, 426 (E.D.N.C. 1994),
aff'd, 48 F.3d 1376 (4th Cir.), cert. denied , 116 S. Ct. 190 (1995).

Jackson and Penland, however, base their property right claim on
two specific sources of law: (1) 1973 North Carolina Session Law
number 297, applicable solely to the Buncombe County Sheriff's
Department, and (2) Policy 15 of the Buncombe County Sheriff's
Department Policies and Procedures.

The 1973 Session Law, which has never been codified, 2 establishes
_________________________________________________________________
2 The relevant portions of 1973 Session Law 297 provide:

           Section 3. Duties of Personnel Advisory Board. The duties
          of the Personnel Board shall be as follows:

          (1) to represent the public interest in the improvement of
          personnel administration;

          (2) to advise the Sheriff of Buncombe County concerning
          personnel administration, including minimum standards of

                    10
a three-member Personnel Advisory Board for the Sheriff's Depart-
ment of Buncombe County, which is authorized to advise the Sheriff
on various personnel matters and "to hear appeals, receive evidence,
determine facts and make recommendations to the Sheriff in case of
employee appeals of suspension, demotion and dismissal." 1973 N.C.
Sess. 297, § 3(5) (emphasis added). Under§ 4 entitled "General Prin-
ciples," the law states that "[a]ll appointments and promotions shall
be made solely on the basis of merit and fitness," id. at § 4(1), and
that "any employee who contends that he was demoted, suspended or
dismissed because of bias, political affiliation, or for reasons not
related to merit, fitness or availability of positions, shall have the right
to appeal to the Personnel Advisory Board," id. at § 4(3), but that ten-
_________________________________________________________________
           employment established by the Criminal Justice and Train-
           ing and Standards Council, and the methods used to publish
           vacancies;

         (3) to make any investigation which it may consider desir-
         able concerning the administration of personnel in the
         Department;

         (4) to advise the Sheriff on such personnel rules as he shall
         establish; and

         (5) to hear appeals, receive evidence, determine facts and
         make recommendations to the Sheriff in case of employee
         appeals of suspension, demotion and dismissal.

         Section 4. General Principles.

         (1) All appointments and promotions shall be made solely
         on the basis of merit and fitness and all residents of Bun-
         combe County shall be given equal opportunity for employ-
         ment without regard to race, religion, color, creed and
         national origin.

         (2) Tenure of employees covered by this act shall be sub-
         ject to good behavior, satisfactory work performance, neces-
         sity for performance of work, and the availability of funds.

         (3) Any employee who contends that he was demoted, sus-
         pended or dismissed because of bias, political affiliation, or
         for reasons not related to merit, fitness or availability of
         positions, shall have the right to appeal to the Personnel
         Advisory Board.

                   11
ure of employees would remain "subject to good behavior, satisfac-
tory work performance, necessity for performance of work, and the
availability of funds," id. at § 4(2).

Penland and Jackson contend that these provisions of the Session
Law should be interpreted to provide that they could be dismissed
only for cause. We do not believe, however, that the plain meaning
of the law's language supports that contention. Under a straightfor-
ward reading of the law, the Personnel Advisory Board in Buncombe
County is given the duty to investigate personnel matters in order "to
advise" the Sheriff on personnel policies and rules, and to hear
appeals from employee suspensions, demotions, and dismissals in
order to "make recommendations" to the Sheriff in respect to those
appeals. In short, as its name suggests, the Board's function is advi-
sory.

While the law also includes "general principles," these relate to
how the Board must carry out its duties. We can find no provision that
confers on Sheriff's Department employees a substantive property
right in their employment. Indeed, while the law appears to give some
procedural rights (rights that the employees in this case did not elect
to use), the Board is given no right in the end to direct the Sheriff to
do anything. And procedural rights in themselves do not create sub-
stantive property rights protected by the Fourteenth Amendment. See
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985)
("`Property' cannot be defined by the procedures provided for its
deprivation any more than can life or liberty"); Olim v. Wakinekona,
461 U.S. 238, 250-51 (1982) (holding that the state may require pro-
cedures for reasons other than protection of substantive rights, but in
so doing does not create independent substantive right); see also
Beckham v. Harris, 756 F.2d 1032, 1037 n.8 (4th Cir.), cert. denied,
474 U.S. 903 (1985) (considering evidence that disciplinary guide-
lines in department personnel manual created an expectation that
employee could be fired only for violation of specified conduct insuf-
ficient to establish a property interest in continued employment).

Buncombe County Sheriff's Department Policy 15 likewise is pro-
cedural, providing Jackson and Penland with no substantive right to
retain their employment. The Policy provides procedures for "disci-
plinary action" and states, "The Sheriff may dismiss an employee for

                    12
disciplinary violations at his discretion." An appeal of disciplinary
action may be taken to a "Sheriff's Advisory Board" if taken within
five working days of the action, and the Board then conducts a hear-
ing, after which it must make a written recommendation to the Sher-
iff. The recommendation may suggest greater or lesser disciplinary
action, but the Sheriff is not bound by the recommendation. The pol-
icy provides, rather, that the Sheriff "may consider the report in mak-
ing his final determination as to the action to be taken. In all cases,
the Sheriff's decision shall be final."

Thus, we conclude that Jackson and Penland have no property right
in continued employment, nor are they given substantive rights by the
procedural protections afforded -- procedures which Jackson and
Penland failed timely to use. See Loudermill, supra; Olim, supra;
Garraghty v. Virginia Dep't of Corrections, 52 F.3d 1274, 1285 (4th
Cir. 1995) (noting that state procedural requirements do not create a
property interest in those procedures).

B

Jackson and Penland also contend that Sheriff Long deprived them
of their liberty interest in their reputations without due process of law
in violation of the Fourteenth Amendment. This claim is based on
Sheriff Long's public statements about his actions in terminating the
jailers and referring their conduct to the SBI for investigation. Jack-
son and Penland argue that even though Sheriff Long's statements
may have been literally true, the statements suggest to the public that
the two jailers were criminally responsible. Jackson and Penland also
contend that the Constitution requires that they be provided with a
due process "name-clearing" hearing.

Sheriff Long maintains that his statements about Jackson and Pen-
land were entirely true. He observes that both Jackson and Penland
were subject to a departmental investigation for violations of depart-
mental policy, both had been dismissed for violation of that policy,
both had been referred to the SBI for further investigation into possi-
ble violations of criminal law, and both could reapply for their jobs
if cleared. He maintains that his public announcements and comments
stated no more. He also noted that neither Jackson nor Penland
demanded any "name-clearing" hearing.

                     13
It is well established that even if statements by public officials may
have been defamatory under state law, that tort alone does not consti-
tute a constitutional deprivation. See Siegert v. Gilley, 500 U.S. 226,
233 (1991); Zepp, 79 F.3d at 388. Rather, unjustified state action must
so seriously damage the plaintiff's reputation and standing in his com-
munity as to foreclose his freedom to take advantage of other employ-
ment opportunities. See Zepp, id.

In this case, Sheriff Long was confronted with a serious allegation
made against Jackson about his conduct at the detention center. Fol-
lowing an internal investigation, Long learned that Jackson had been
on inmate Brock's floor without escort and that jailer Penland, who
was on duty, failed to enforce a departmental policy that no males be
left alone with female inmates. Whether Sheriff Long's judgment was
right or wrong, he elected to terminate the at-will employment of both
Jackson and Penland and to refer the assault complaint to the SBI to
determine whether any criminal laws had been violated. In connection
with this incident of high public concern, Sheriff Long issued a press
release which accurately reported the complaint and his actions. He
also stated publicly that the employees could seek reemployment if
they were cleared. No one has alleged that Sheriff Long falsely
reported the complaint or his actions.

While there can be no doubt that the announcement of an investiga-
tion places suspicion on those persons being investigated, that suspi-
cion is inherent when undertaking any investigation. If Jackson and
Penland suggest, however, that a constitutional deprivation of liberty
results from an employer's public announcement of a criminal inves-
tigation into his employees' job performances, they have advanced no
law supporting that suggestion. To impute knowledge to Sheriff Long
of a constitutional transgression, the right would have to be clearly
defined at the time.

C

The responsibility imposed on public officials to comply with con-
stitutional requirements is commensurate with the legal knowledge of
an objectively reasonable official in similar circumstances at the time
of the challenged conduct. It is not measured by the collective hind-
sight of skilled lawyers and learned judges. And even that focused

                    14
hindsight cannot, in this case, justify the conclusion that Sheriff
Long's dismissal of Jackson and Penland and his announcement of a
criminal investigation violated clearly established constitutional
rights. See Zepp, 79 F.3d at 388; Robertson v. Rogers, 679 F.2d 1090,
1092 (4th Cir. 1982). Absent clearly established law that proscribed
Sheriff Long's specific conduct, Sheriff Long should not be subjected
to suit. "Officials are not liable for bad guesses in gray areas; they are
liable for transgressing bright lines." Maciariello v. Sumner, 973 F.2d
295, 298 (4th Cir. 1992), cert. denied , 506 U.S. 1080 (1993).

IV

As to the § 1983 claims purportedly made against Sheriff Long in
his official capacity, Sheriff Long asserts that plaintiffs' complaints
fail to state a claim against him in his official capacity because they
do not allege that a custom or policy was the basis of a violation of
the employees' constitutional rights. Long also asserts that he would
be immune from any such claim under the Eleventh Amendment.

While the captions on the complaints in this case do indicate that
Sheriff Long was sued in both his individual and official capacities,
he correctly observes that the complaints' allegations relate only to
Long's individual conduct. The complaints fail to allege a violation
of a Sheriff's Department regulation, policy, or practice that autho-
rized any constitutionally proscribed action taken against Jackson and
Penland, and therefore the complaints fail to impute liability to the
Sheriff in his official capacity. See Greensboro Professional Fire
Fighters Ass'n, Local 3157 v. City of Greensboro, 64 F.3d 962, 964
(4th Cir. 1995). Indeed, we cannot conceive how, in the context of
this case, Jackson and Penland could have alleged a policy that com-
manded Sheriff Long's conduct in violation of their constitutional
rights because, as we observed in our discussion of qualified immu-
nity, his conduct violated no established constitutional right.

While we ordinarily would decide an immunity claim before reach-
ing the merits of the underlying claim, cf. DiMeglio v. Haines, 45
F.3d 790, 797 (4th Cir. 1995) (stating that court should assess, before
anything else, qualified immunity issue), when the complaint alleges
no claim against which immunity would attach, we need not decide
the immunity issue. Rather, in a rare exercise of pendent appellate

                     15
jurisdiction, see Taylor v. Waters, 81 F.3d 429, 437 (4th Cir. 1996);
DiMeglio, 45 F.3d at, 807-08; O'Bar v. Pinion, 953 F.2d 74, 80 (4th
Cir. 1991), we conclude that the district court should have granted
Sheriff Long's motion to dismiss the complaint against him in his
official capacity.

V

In summary, we conclude that Sheriff Long is entitled to qualified
immunity from the 42 U.S.C. § 1983 claims made against him in his
individual capacity and that the complaint does not adequately allege
a claim against him in his official capacity. Accordingly, we reverse
the district court's rulings on these issues and remand this case to the
district court with instructions to dismiss all federal claims asserted
against Sheriff Long.

REVERSED AND REMANDED WITH INSTRUCTIONS

                     16
