                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT          FILED
                       ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                             No. 05-13547                 December 16, 2005
                                                         THOMAS K. KAHN
                         Non-Argument Calendar
                                                             CLERK
                       ________________________

                   D. C. Docket No. 03-00043-CV-JTC-3

TINA M. LEPONE-DEMPSEY,
SHANNON M. ALEXANDER,

                                                          Plaintiffs-Appellees,

                                  versus

CARROLL COUNTY COMMISSIONERS,
et al.,

                                                                   Defendants,

PHILLIP WAGNER, Sheriff, acting
individually and as an agent
for Carroll County Sheriff's
Department,

                                                         Defendant-Appellant.

                       ________________________

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

                           (December 16, 2005)
Before CARNES, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

       Carroll County Sheriff’s Deputy Phillip Wagner appeals from a district court

order denying his motion for summary judgment on the basis of qualified

immunity. We find no reversible error, and therefore affirm.1

       Plaintiff Tina Lepone-Dempsey asserts, inter alia, 42 U.S.C. § 1983 claims

against members of the City of Villa Rica Police Department and Carroll County

Sheriff’s Department (including Deputy Wagner), as well as several Carroll

County Commissioners, for violations of Plaintiff’s federal constitutional rights.2

The alleged violations occurred when the law enforcement officers, some of whom

claimed to have arrest warrants, sought to effect the arrest of Chris Dempsey

(Plaintiff’s husband) and Randall Willoughby in and around the double-wide

mobile home occupied by Plaintiff.

       Although the Villa Rica Defendants obtained a dismissal of all claims

against them under Federal Rule of Civil Procedure 12(b)(5), the Carroll County


       1
         Notwithstanding the interlocutory nature of an appeal from a denial of summary
judgment sought on the basis of qualified immunity, we have jurisdiction over the appeal so long
as it concerns issues that involve the core qualified immunity analysis, and not merely challenges
to the sufficiency of the evidence on a predicate factual element of the alleged underlying
constitutional torts. See Behrens v. Pelletier, 516 U.S. 299, 305-06, 116 S. Ct. 834, 838-39, 133
L. Ed. 2d 773 (1996); Koch v. Rugg, 221 F.3d 1283, 1294-97 (11th Cir. 2000).
       2
        Although Plaintiff Dempsey’s daughter, Shannon Alexander, is also a named plaintiff
and appellant, Alexander’s claims are not actually at issue in this appeal.

                                                2
Defendants answered Plaintiff’s Complaint and, after some discovery, moved for

summary judgment on several grounds, including qualified immunity. With

respect to Deputy Wagner, the district court determined that Plaintiff had alleged

claims against him for unlawful arrest, excessive force, and an unlawful search, all

in violation of the Fourth Amendment. The district court denied Wagner summary

judgment on these issues, however, for the following reasons: (1) the evidence,

viewed in the light most favorable to Plaintiff, indicated that Wagner and the other

officers had no warrant, did not obtain consent to enter Plaintiff’s home, and did

not enter the home because of exigent circumstances; (2) although the evidence did

not create a fact issue as to whether Wagner personally participated in Plaintiff’s

arrest, he could still be held liable on a failure to intervene theory; (3) there was no

indication that the law enforcement officers had an arrest or search warrant at the

time Wagner went through Plaintiff’s bedroom furniture; and (4) the exception to

the search warrant requirement for protective sweeps incident to lawful arrests did

not apply to Wagner’s pre-arrest conduct, and his search exceeded a protective

sweep’s scope.

      On appeal, Wagner challenges the district court’s decision only with respect

to the claims of unlawful arrest and excessive force. He contends that: (1) the

district court erred in determining that Plaintiff alleged a unlawful arrest claim



                                            3
against him under the Fourth Amendment; (2) Plaintiff’s excessive force claim is

not properly subsumed into the unlawful arrest claim; and (3) even if the unlawful

arrest and excessive force claims were properly raised, he is still entitled to

qualified immunity. “We review de novo the district court’s decision denying

qualified immunity, drawing all factual inferences in the nonmovant’s favor.”

Bennett v. Hendrix, 423 F.3d 1247, 1249 (11th Cir. 2005).3

       Qualified immunity insulates government officials from personal liability

under § 1983 for actions taken pursuant to their discretionary authority. Cooper v.

Dillon, 403 F.3d 1208, 1220 (11th Cir. 2005). However, “[g]overnment officials

acting within their discretionary authority are ineligible for qualified immunity

from suit when the facts [t]aken in the light most favorable to the party asserting

the injury . . . show the officer’s conduct violated a constitutional right’ and ‘the

right was clearly established.” Bennett, 423 F.3d at 1250 (internal quotations

omitted). It is uncontroverted that Wagner was at all relevant times acting pursuant

to his discretionary authority. Under our precedent then, the burden lay with


       3
          “Summary judgment is appropriate only if there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law.” Castleberry v. Goldome Credit
Corp., 418 F.3d 1267, 1271 (11th Cir. 2005); see Fed. R. Civ. P. 56(c). “If the judgment entered
is correct, we may affirm the district court ‘on any legal grounds regardless of the grounds
addressed, adopted or rejected by the district court.’” Novak v. Irwin Yacht and Marine Corp.,
986 F.2d 468, 470 (11th Cir. 1993) (quoting Bonnani Ship Supply, Inc. v. United States, 959 F.2d
1558, 1561 (11th Cir. 1992)); see Regions v. Provident Bank, Inc., 345 F.3d 1267, 1274 (11th
Cir. 2003) (explaining that we may affirm a grant of summary judgment on any ground fairly
supported by the record).

                                               4
Plaintiff to establish a constitutional violation. See id.

       First of all, having reviewed the complaint and the decision of the district

court, we find no reversible error in the court’s determination that a claim of

unlawful arrest in violation of the Fourth Amendment was sufficiently alleged on

the face of the complaint.4 Likewise, we find no error in the district court’s

conclusion that Plaintiff’s excessive force claim is predicated solely on the

officers’ actions in arresting her–and that because there are genuine issues of fact

on whether the arrest was lawful, the claim of excessive force may simply go to the

issue of damages on Plaintiff’s unlawful arrest claim rather than stand alone. See

Jackson v. Sauls, 206 F.3d 1156, 1171 (11th Cir. 2000) (“[A] claim that any force

during a false arrest is excessive is subsumed in the false arrest claim itself because

damages for false arrest include damages for use of force to effect that false

arrest.”) (citing Williamson v. Mills, 65 F.3d 155, 158-59 (11th Cir. 1995) (per

curiam)).

       Wagner does not contest the district court’s finding that Plaintiff failed to

produce evidence sufficient to create a genuine issue of fact on whether Wagner




       4
          This is not, for example, a case where the government official adequately responded to
all claims reasonably apparent from the complaint, and the district court then “divine[d] another
claim by which the plaintiff [might] defeat qualified immunity.” GJR Invs., Inc. v. County of
Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998).

                                                5
personally participated in her arrest.5 Wagner disagrees, however, that Plaintiff

can advance a viable failure to intervene theory, because Wagner believes that this

allegation was not properly plead in Plaintiff’s complaint. Again, we have

reviewed the complaint and the district court’s order, and find no reversible error

in the court’s determination that Wagner received adequate notice from the outset

of the case that Plaintiff might pursue a failure to intervene theory of liability. See

Priester v. City of Riviera Beach, Fla, 208 F.3d 919, 924 (11th Cir. 2000)

(explaining that officer can be liable for failing to intervene when another officer is

using excessive force and the non-participating officer is in a position to intervene

but fails to do so).

       Even if Plaintiff adequately alleges a federal unlawful arrest claim and

failure to intervene theory of liability, Wagner maintains, the district court still

erred in denying qualified immunity. Plaintiff, Wagner argues, failed to cite any

authority giving Wagner “fair warning” that Plaintiff had a constitutional right (if

any) to demand to see a copy of the arrest warrant that was the purported basis for

the officers’ entry into the mobile home. See Bennett, 423 F.3d at 1255 (“A right

is clearly established if, in light of already existing law, the unlawfulness of the



       5
        Plaintiff disagrees with this finding in her brief, but did not attempt to cross-appeal the
issue. We note that there is evidence Wagner was present during Plaintiff’s arrest and provided
his handcuffs to another officer for use in the arrest.

                                                 6
conduct is apparent.”) (internal quotations omitted). However, it was clearly

established that, absent consent or exigent circumstances, a law enforcement

officer could not make a warrantless entry into a suspect’s home in order to make a

routine felony arrest. See Payton v. New York, 445 U.S. 573, 576, 100 S. Ct. 1371,

1374-75, 63 L. Ed. 2d 639 (1980).6 Here, there are genuine issues of fact as to

whether the law enforcement officers had a warrant of any kind at the time of

Plaintiff’s arrest.7 Thus, Wagner’s focus on whether he was constitutionally

required to show the warrant is not dispositive.

       Wagner also contends that a reasonable officer in his position would have

believed that there was probable cause to arrest Plaintiff when she became

belligerent, because “[u]nder Georgia law, it is unlawful to knowingly and

willfully obstruct or hinder any law enforcement officer in the lawful discharge of

his official duties.” Draper v. Reynolds, 369 F.3d 1270, 1276 (11th Cir. 2004)

(citing O.C.G.A. § 16-10-24(a)), cert. denied, __ U.S. __, 125 S. Ct. 507, 160 L.

Ed. 2d 373 (2004). However, genuine issues of fact precluded a summary



       6
          It was also clearly established that, absent consent or exigent circumstances, a law
enforcement officer could not legally search for the subject of an arrest warrant in the home of a
third party without first obtaining a search warrant. See Steagald v. United States, 451 U.S. 204,
205-06, 101 S. Ct. 1642, 1644, 68 L. Ed. 2d 38 (1981).
       7
          Although Wagner claims that at one point he had arrest warrants in his hand, it appears
that no warrant was shown to Dempsey when the officers entered her home (or even prior to her
arrest), and that none was produced in the record.

                                                7
determination that the law enforcement officers in the instant case were engaging

in the lawful discharge of their official duties when they arrested Plaintiff inside

her home.8

       Finally, Wagner argues that there was no clearly established duty at the time

of Plaintiff’s arrest for a law enforcement officer to intervene in order to stop an

unlawful arrest; only a duty to intervene to stop the use of excessive force. See

Priester, 208 F.3d at 927. Our precedent suggests, as Wagner points out, that the

duty to intervene does not necessarily extend to every conceivable situation

involving a constitutional violation. See, e.g., Jones v. Cannon, 174 F.3d 1271,

1286 (11th Cir. 1999) (“There is no controlling authority clearly establishing that

once a police officer knows another officer has fabricated a confession in a police

report for a warrantless arrest, that police officer has a constitutional duty to

intervene to stop the other officer’s conduct.”). However, given our holding in

Jackson–that a claim of excessive force predicated on the unlawfulness of an arrest

is subsumed into an unlawful arrest claim–we do not believe the district court erred

in concluding that a duty to intervene in an unlawful arrest was clearly established.

       Having reviewed the briefs, the district court’s order, and the record, we find



       8
        There is authority for the proposition that Georgia law permits a person to resist an
unlawful arrest. See, e.g., Gainor v. Douglas County, Ga., 59 F. Supp. 2d 1259, 1281 n.23 (N.D.
Ga. 1998) (citing cases).

                                               8
no reversible error. Accordingly, we affirm the judgment of the district court.

      AFFIRMED.




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