                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                  FILED
                     ________________________
                                                     U.S. COURT OF APPEALS
                                                       ELEVENTH CIRCUIT
                            No. 05-12068                   October 6, 2005
                        Non-Argument Calendar           THOMAS K. KAHN
                      ________________________                CLERK

                 D. C. Docket No. 04-01257-CV-WSD-1

JEROME CALVERT,

                                                    Plaintiff-Appellee,

                                 versus

FULTON COUNTY, GEORGIA,
CLERK OF SUPERIOR COURT,
JUANITA HICKS, ET AL.,

                                                    Defendants-Appellants.

                      ________________________

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

                           (October 6, 2005)

Before ANDERSON, HULL and MARCUS, Circuit Judges.

PER CURIAM:
       Juanita Hicks, Tina Robinson, and Phyllis Brown (collectively, “Appellants”),

proceeding in their individual capacities, appeal the district court’s denial of qualified

immunity in Plaintiff Jerome Calvert’s 42 U.S.C. § 1983 action alleging violations

of his First Amendment rights of free speech and association.1 The claims asserted

by Calvert, who is black, were based on alleged adverse employment actions taken

against him after he supported the candidacy of a white political opponent of Hicks.

Appellants argue the district court erred by denying qualified immunity because no

clearly established law gave Appellants “fair warning” that the conduct set forth in

Calvert’s complaint was unlawful.

       We review de novo a district court’s holding that public officials are not

entitled to qualified immunity because they violated clearly established law. Johnson

v. Clifton, 74 F.3d 1087, 1090 (11th Cir. 1996). After thorough review of the record

and the parties’ briefs, we affirm.




       1
        As for Appellants’ challenge to the denial of qualified immunity on Calvert’s Fourteenth
Amendment claims, we are unpersuaded by Appellants’ arguments and affirm the district court’s
conclusion that the allegations of Calvert’s complaint were sufficient to defeat a qualified immunity
defense. Calvert also sued Fulton County, Georgia and Hicks, in her official capacity. Those claims
were dismissed, pursuant to Fed. R. Civ. P. 12(b)(6), for failure to state a claim upon which relief
can be granted. Only the district court’s denial of qualified immunity to the individual defendants
on the First Amendment claims is before us.

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        The facts relevant to the qualified immunity analysis are straightforward and

largely undisputed.2 Prior to initiating this lawsuit, Calvert was an employee in the

office of the Clerk of Superior Court of Fulton County, Georgia. Appellant Hicks

holds, and has held, the elected office of Clerk of the Superior Court of Fulton

County since 1988. Appellants Robinson and Brown are both management-level

employees in the Clerk’s office. In his complaint, Calvert alleged that the Appellants

discriminated and retaliated against him, based on race, after he publicly endorsed,

and openly and publicly participated in campaign efforts on behalf of, Lewis Pittman,

a white candidate for the Clerk of Court position. Calvert alleged that the defendants,

“all of whom are black, were infuriated over the decision of Calvert, who is also

black, to support Pittman (who is white) over Hicks in the upcoming election.”

Calvert stated that the adverse employment actions taken against him included

“demeaning and unwelcome transfers and job assignments[;] bogus, contrived, and

pretextual ‘write-ups’ and reprimands[;] unpaid suspensions[;] and ultimately,

involuntary termination of employment.”




        2
           At this procedural point, we, like the district court, accept as true the facts as set forth in
Calvert’s complaint. See Wilson v. Strong, 156 F.3d 1131, 1133 (11th Cir. 1998)(“In reviewing a
motion to dismiss based on qualified immunity, the district court is required to accept the factual
allegations in the plaintiff's complaint as true and draw all reasonable inferences in favor of the
plaintiff.”).

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       Appellants moved to dismiss the complaint, arguing, inter alia, that they were

entitled to qualified immunity on Calvert’s pure political patronage claims.3

Qualified immunity protects government actors performing discretionary functions

from being sued in their individual capacities. Kingsland v. City of Miami, 382 F.3d

1230, 1231-32 (11th Cir. 2004). The doctrine shields government officials from

liability to the extent that “their conduct does not violate clearly established . . .

constitutional rights of which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 817-18, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982).

       A government official who is sued under § 1983 may seek summary judgment

on the ground that he is entitled to qualified immunity. Holloman ex rel. Holloman

v. Harland, 370 F.3d 1252, 1263 (11th Cir. 2004). To be eligible for qualified

immunity, the official must first establish that he was performing a “discretionary

function” at the time the alleged violation of federal law occurred. Id. at 1263-64.

Once the official has established that he was engaged in a discretionary function, the

plaintiff bears the burden of demonstrating that the official is not entitled to qualified

immunity. Id. at 1264. In order to demonstrate that the official is not entitled to

       3
           When Calvert filed his complaint, it was unclear whether he asserted pure political
patronage claims, pure expression claims, or mixed patronage/expression claims. See Terry v. Cook,
866 F.2d 373, 375-77 (11th Cir. 1989) (distinguishing between these types of claims) . After
Appellants moved to dismiss based on Fed. R. Civ. P. 12(b)(6), arguing Calvert failed to state a
claim upon which relief could be granted, Calvert clarified that his claims were purely of the
“political patronage” variety. We consider them as such in this appeal.

                                                4
qualified immunity, the plaintiff must show two things: (1) that the defendant has

committed a constitutional violation and (2) that the constitutional right the defendant

violated was “clearly established” at the time he did it. Saucier v. Katz, 533 U.S. 194,

201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001); Holloman, 370 F.3d at 1264. This

two-step inquiry is designed to “provide[ ] ample protection to all but the plainly

incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S.

335, 341, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986).

      The district court, applying Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49

L. Ed. 2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287, 63 L. Ed.

2d 574 (1980), the Supreme Court’s seminal cases on political patronage claims, held

the following:

      Here, it is undisputed that the Individual Defendants were performing
      discretionary functions at the time the alleged violation of federal law
      occurred, and that Plaintiff’s allegations, if true, may establish a
      constitutional violation.

             Further, although the Individual Defendants argue the law was not
      clearly established that adverse employment action against a single
      employee -- as opposed to an en masse firing or the firing of multiple
      employees -- could give rise to a political patronage claim, the Court
      finds Plaintiff alleges facts which, if proven true, may defeat a claim of
      qualified immunity. (See Compl. ¶ 23 (alleging Individual Defendants’
      discharged other Clerk’s office employees based on their support of
      Pittman)).




                                           5
(citations omitted) (emphasis added). The district court concluded that because

Calvert’s complaint alleged numerous discharges, and not just his own, summary

judgment based on qualified immunity was not warranted on Calvert’s political

patronage claims.

      On the limited record before us, we cannot say the district court erred by

concluding that, if the allegations in Calvert’s complaint are true, which we too must

assume they are, Appellants’ qualified immunity defense fails. Accordingly, we

affirm the denial of summary judgment at this point in the proceedings.

      AFFIRMED.




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