                Case: 13-10652     Date Filed: 10/16/2013   Page: 1 of 9


                                                                [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                   No. 13-10652
                               Non-Argument Calendar
                             ________________________

                         D.C. Docket No. 1:11-cv-00549-WSD

MICHAEL KING,

                                                     Plaintiff – Appellant,

versus

ANTHONY LUMPKIN,
individual and in his official capacity as a
police officer for the City of Jonesboro, Georgia
and as a resource officer for Clayton County Public Schools,

                                                     Defendant - Appellee.

                             ________________________

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

                                   (October 16, 2013)

Before TJOFLAT, MARCUS and MARTIN, Circuit Judges.

PER CURIAM:

         Plaintiff-Appellant Michael King appeals from the district court’s final order

dismissing his complaint alleging claims under 42 U.S.C. § 1983, against Officer
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Anthony Lumpkin, in Lumpkin’s individual capacity and in his official capacity as

a police officer for the City of Jonesboro and a resource officer for Clayton County

Public Schools. On appeal, King argues that the district court erred in dismissing

his § 1983 claims under the Voting Rights Act of 1965 (“VRA”), the Fourth

Amendment, the Fourteenth Amendment, and the Fifteenth Amendment, as well as

his state constitutional law claim. After thorough review, we affirm.

      We review de novo a district court’s grant of a motion to dismiss under

Federal Rule of Civil Procedure 12(b)(6), taking as true the factual allegations in

the complaint and construing them in the light most favorable to the plaintiff.

Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). Dismissal for

failure to state a claim under Rule 12(b)(6) is proper if the factual allegations are

not enough to raise a right of relief above the speculative level. Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 555 (2007). We review a district court’s decision to

decline supplemental jurisdiction over state law claims for abuse of discretion. See

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357 (1988). We also review the

denial of a motion to amend a complaint for abuse of discretion. Green Leaf

Nursery v. E.I. DuPont De Nemours & Co., 341 F.3d 1292, 1300 (11th Cir. 2003).

      The relevant background is this.        On November 24, 2008, an ethics

complaint was filed with the Clayton County Ethics Commission against King, an

elected member of the Clayton County Board of Education (the “Board”). The


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ethics complaint alleged violations of Georgia House Bill 1302, which was enacted

“[t]o provide a code of ethics for the Clayton County School System; to provide

for prohibited practices; to provide for disclosure; to provide for an ethics

commission; . . . to provide for complaints; to provide for hearings and actions; to

provide for sanctions; . . . and for other purposes.” 2008 Ga. Laws 400, pmbl.

(“House Bill 1302”). Among other things, House Bill 1302 prohibits any elected

official of the Clayton County School System, including the Board, from

representing “private interests in any action or proceeding against the school

system or any office, department, or agency thereof.” Id. § 2(a)(4).

      On February 16, 2009, the Commission found that King had violated House

Bill 1302 by: (1) representing a litigant in a suit against the Clayton County Public

Schools and certain of its employees while he was a member of the Board; (2)

failing to disclose a financial interest related to the operation of the Clayton County

Public Schools; and, (3) filing a lawsuit in the Superior Court of Clayton County

against the Clayton County Public Schools and Board asking the court to review

the actions of the Board in censuring him for representing a party against the Board

and for failing to disclose an adverse financial interest. The Commission ordered

that King immediately be removed from his position as a Board member.

      On February 23, 2009, King “appeared at the central office for the Clayton

County Public Schools for the 7:00 p.m. school board meeting.” Before the start of


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the meeting, King claims that Officer Lumpkin physically removed him from his

seat on the Board, escorted him out of the building, and directed him not to return

to his seat until he appealed his removal by the Commission. King sued, alleging:

(1) a § 1983 claim for false arrest and wrongful removal from the School Board

meeting in violation of the Fourth Amendment; (2) two § 1983 claims for

violations of the Fourteenth and Fifteenth Amendment, respectively, as a result of

his removal from a Clayton County School Board meeting; and, (3) a § 1983 claim

for violations of his “federal constitutional and statutory rights” as a result of

Officer Lumpkin’s enforcement of House Bill 1302, which King says was not

precleared by the Department of Justice under Section 5 of the VRA. The district

court dismissed King’s complaint. This timely appeal follows.

      First, we are unpersuaded by King’s argument that the district court erred in

granting qualified immunity to Lumpkin on the § 1983 claims. To establish a §

1983 claim, King must make a prima facie showing that: (1) an act or omission

deprived him of a right, privilege, or immunity secured by the Constitution or laws

of the United States, and (2) the act or omission was done by a person acting under

color of law. Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas Dist., 992 F.2d

1171, 1174 (11th Cir. 1993). Qualified immunity protects government officials

performing discretionary functions from suits in their individual capacities, unless

their conduct violates “clearly established statutory or constitutional rights of


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which a reasonable person would have known.” Hope v. Pelzer, 536 U.S. 730, 739

(2002) (quotation omitted). “The purpose of this immunity is to allow government

officials to carry out their discretionary duties without the fear of personal liability

or harassing litigation, protecting from suit all but the plainly incompetent or one

who is knowingly violating the federal law.” Lee v. Ferraro, 284 F.3d 1188, 1194

(11th Cir. 2002) (quotation and citation omitted).

      To be protected by qualified immunity, “the public official must first prove

that he was acting within the scope of his discretionary authority when the

allegedly wrongful acts occurred.” Id. (quotation omitted). In order to determine

whether the acts in question are discretionary acts protected by qualified immunity,

we must look at “whether the government employee was (a) performing a

legitimate job-related function (that is, pursuing a job-related goal), (b) through

means that were within his power to utilize.” Holloman ex rel. Holloman v.

Harland, 370 F.3d 1252, 1265 (11th Cir. 2004). We agree with the district court

that Officer Lumpkin was carrying out his discretionary duties as a law

enforcement officer when he escorted King from his seat on the Board after King

had been removed from the Board by the Ethics Commission for ethical violations.

      If a government official was acting within the scope of his discretionary

authority, “the burden then shifts to the plaintiff to show that the grant of qualified

immunity is inappropriate.” McCullough v. Antolini, 559 F.3d 1201, 1205 (11th


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Cir. 2009). To do so, the plaintiff must demonstrate: one, that the facts viewed in

the light most favorable to the plaintiff establish a constitutional violation by the

officers, and, two, that it was clearly established at the time of the incident that the

actions of the defendant were unconstitutional. Id. We need not conduct this

qualified immunity analysis in any specific order; rather, we are permitted to

exercise our sound discretion in deciding which prong of this inquiry to address

first. Id. In assessing the clearly-established prong, we ask “whether it would be

clear to a reasonable officer that his conduct was unlawful in the situation he

confronted.” Vinyard v. Wilson, 311 F.3d 1340, 1350 (11th Cir. 2002) (quotation

omitted). Thus, in order for a plaintiff to show that a constitutional violation was

clearly established, she must show (1) “that a materially similar case has already

been decided, giving notice to the police”; (2) “that a broader, clearly established

principle should control the novel facts in this situation”; or (3) “this case fits

within the exception of conduct which so obviously violates [the] constitution that

prior case law is unnecessary.” Keating v. City of Miami, 598 F.3d 753, 766 (11th

Cir. 2010) (quotation omitted).

      Here, King claims that Officer Lumpkin should have read the entirety of

House Bill 1302 prior to “escorting plaintiff out of the building and directing him

not to return to his seat on the school board until he appealed a removal

recommendation by the [Ethics Commission Order].”               However, the Ethics


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Commission Order expressly provided that “the Clayton County School System

Ethics Commission hereby ORDERS that Michael B. King be, and he hereby is,

REMOVED from his seat as the member of the Clayton County Board of

Education from District 4, effective immediately.” Further, although House Bill

1302 says that “the accused member shall remain a voting member of the board

until [all appeals are exhausted],” House Bill 1302 also gives the commission the

power to sanction unethical behavior by “order[ing] the removal of the board

member from office.” House Bill 1302 § 4(h), (k). King cites to nothing that

would have given Officer Lumpkin fair warning that enforcing a valid Ethics

Commission Order recommending removal -- with or without ascertaining King’s

appeal status at the time he escorted him out of the meeting -- was a violation of a

clearly established constitutional right under the Fourth, Fourteenth, or Fifteenth

Amendments. Indeed, King does not even make any specific legal argument about

any due process rights that might have been affected. See Greenbriar, Ltd. v. City

of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (stating that passing

references to issues are insufficient to raise a claim for appeal, and such issues are

deemed abandoned). 1 Accordingly, we affirm the district court’s conclusion that

Officer Lumpkin is entitled to qualified immunity for King’s § 1983 claims. 2


1
        King has also abandoned any challenge to the district court’s finding that Officer
Lumpkin’s actions were reasonable because Officer Lumpkin had probable cause to believe that
a valid removal order was being violated.
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       Nor are we convinced by King’s argument that the district court erred in

dismissing his § 1983 claim against Officer Lumpkin in his official capacity. “A

claim asserted against an individual in his or her official capacity is, in reality, a

suit against the entity that employs the individual.” Mann v. Taser Int’l, Inc., 588

F.3d 1291, 1309 (11th Cir. 2009). A government entity is only liable under

Section 1983 for the actions of its employees “when execution of a government’s

policy or custom, whether made by its lawmakers or by those whose edicts or acts

may fairly be said to represent official policy, inflicts the injury . . . .” Monell v.

Dep’t of Soc. Serv., 436 U.S. 658, 694 (1978). “A policy is a decision that is

officially adopted by the municipality, or created by an official of such rank that he

or she could be said to be acting on behalf of the municipality. A custom is a

practice that is so settled and permanent that it takes on the force of law.” Cooper

v. Dillon, 403 F.3d 1208, 1221 (11th Cir. 2005) (quotation omitted).

       Here, King’s complaint failed to state a claim against Officer Lumpkin in his

official capacity because: (1) House Bill 1302 is not an official policy of the City

of Jonesboro, but rather is a bill passed by the Georgia legislature; and (2) the




2
        Moreover, all of King’s claims based on Section 5 of the VRA -- including whether a
three-judge panel was required, whether a declaratory judgment was warranted, and whether an
injunction was warranted -- were properly dismissed. This is because, among other things, the
United States Supreme Court recently held, in Shelby County, Ala. v. Holder, 133 S. Ct. 2612
(2013), that the preclearance requirements of Section 5 of the VRA cannot be enforced until
Congress amends the coverage formula in Section 4 of the VRA. Id. at 2631.
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Clayton County Public Schools Ethics Commission Order is not an official policy

of the City of Jonesboro. Id. Thus, we affirm the district court’s dismissal of

King’s claim against Officer Lumpkin in his official capacity.

       We also reject King’s claim that the district court should take supplemental

jurisdiction of his state law claims. As we’ve already determined, the district court

properly dismissed all of King’s federal claims. Therefore, the district court did

not abuse its discretion in declining to exercise supplemental jurisdiction over

King’s state law claims.

        Finally, to the extent King argues that the district court abused its discretion

in denying King’s request to amend his complaint, we disagree. Because King is a

licensed attorney, he does not have the right to have his pleading liberally

construed. See Olivares v. Martin, 555 F.2d 1192, 1194 n.1 (5th Cir. 1977)

(licensed attorneys proceeding pro se not entitled to have pleadings liberally

construed). 3

       AFFIRMED.




3
       In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all Fifth Circuit decisions issued before October 1, 1981.
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