                                                      [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT           FILED
                    ________________________ U.S. COURT OF APPEALS
                                                      ELEVENTH CIRCUIT
                                                         SEPT 9, 2008
                           No. 08-10547
                                                       THOMAS K. KAHN
                       Non-Argument Calendar
                                                           CLERK
                     ________________________

                 D. C. Docket No. 05-00158-CV-CAP-1

CATHLEEN GARY,

                                                        Plaintiff-Appellee,

                               versus

DEKALB COUNTY GOVERNMENT, et al.,

                                                              Defendants,

VERNON JONES, CEO,
THOMAS BROWN,
GRAHAM,
MOSES ECTOR,
EDDIE MOODY,

                                                   Defendants-Appellants.

                     ________________________

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

                        (September 9, 2008)
Before MARCUS, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

      DeKalb County officials Vernon Jones, Thomas Brown, Eddie Moody,

Louis Graham, and Moses Ector appeal the denial of their motion to dismiss

Cathleen Gary’s complaint based on qualified immunity. See 42 U.S.C. § 1983.

The district court concluded that the officials failed to allege that they were

engaged in discretionary functions when they performed the acts alleged in Gary’s

complaint. We affirm.

      The officials raise two issues for review. We have jurisdiction to review

whether the officials are entitled to qualified immunity. See 28 U.S.C. § 1291;

Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir. 2003). We review de novo the

denial of qualified immunity and accept the factual allegations in the complaint as

true and construe the facts in the light most favorable to the plaintiff. Id. We lack

jurisdiction to review the officials’ argument that Gary’s complaint fails to state a

claim for relief. Koch v. Rugg, 221 F.3d 1283, 1296 (11th Cir. 2000).

      The officials argue on appeal that they were engaged in their respective

discretionary functions for DeKalb County, but the officials did not allege in their

motion to dismiss that they were performing discretionary functions. See

Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1263–64 (11th Cir. 2004).

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The officials also argue that Cathleen Gary did not identify which official or

officials committed actions that violated her constitutional rights, but we disagree.

Although Gary did not identify which official or officials committed acts that

violated her rights, when read liberally, see Thomas v. Ga. State Bd. of Pardons

and Paroles, 881 F.2d 1032, 1033 (11th Cir. 1989), Gary’s complaint alleges that

the named officials implanted a device in her body that violates her right to

privacy under the First Amendment and constitutes an illegal search and seizure

under the Fourth Amendment. No matter how fanciful Gary’s complaint appears

to be, the record does not support a finding of qualified immunity.

      AFFIRMED.




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