                                                  [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS
                                                      FILED
                   FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________ ELEVENTH CIRCUIT
                                                   JAN 07 2008
                           No. 07-13941        THOMAS K. KAHN
                                                     CLERK
                       Non-Argument Calendar
                     ________________________

                 D. C. Docket No. 01-00148-CV-WBH-3

VICTOR HARRIS,


                                                        Plaintiff-Appellant,

                               versus

COWETA COUNTY, GA,
SHERIFF MICHAEL S. YEAGER,
SGT. MARK FENNINGER,
DEPUTY CLINTON D. REYNOLDS,
DEPUTY TIMOTHY C. SCOTT,


                                                     Defendants-Appellees.

                     ________________________

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

                          (January 7, 2008)
Before MARCUS, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

      Victor Harris appeals the grant of summary judgment against his claims of

negligence and battery and in favor of Timothy Scott, Deputy of Coweta County;

Mark Fenninger, Sergeant of Coweta County; and Michael Yeager, Sheriff of

Coweta County. Because there was no evidence of malice or “actual intent to

cause injury” by the pursuing law enforcement officer, Harris, as a fleeing suspect,

is precluded from recovery under Georgia law. We affirm the summary judgment.

      In an interlocutory appeal from a denial of Scott’s motion for summary

judgment based on qualified immunity from liability for Harris’s complaint of

excessive force, see 42 U.S.C. § 1983, the Supreme Court articulated the relevant

facts in this case as follows:

             In March 2001, a Georgia county deputy clocked
             respondent's vehicle traveling at 73 miles per hour on a
             road with a 55-mile-per-hour speed limit. The deputy
             activated his blue flashing lights indicating that
             respondent should pull over. Instead, respondent sped
             away, initiating a chase down what is in most portions a
             two-lane road, at speeds exceeding 85 miles per hour.
             The deputy radioed his dispatch to report that he was
             pursuing a fleeing vehicle, and broadcast its license plate
             number. Petitioner, Deputy Timothy Scott, heard the
             radio communication and joined the pursuit along with
             other officers. In the midst of the chase, respondent
             pulled into the parking lot of a shopping center and was
             nearly boxed in by the various police vehicles.

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             Respondent evaded the trap by making a sharp turn,
             colliding with Scott’s police car, exiting the parking lot,
             and speeding off once again down a two-lane highway.

             Following respondent’s shopping center maneuvering,
             which resulted in slight damage to Scott's police car,
             Scott took over as the lead pursuit vehicle. Six minutes
             and nearly 10 miles after the chase had begun, Scott
             decided to attempt to terminate the episode by employing
             a “Precision Intervention Technique (‘PIT’) maneuver,
             which causes the fleeing vehicle to spin to a stop.” . . .
             Having radioed his supervisor for permission, Scott was
             told to “‘[g]o ahead and take him out.’” . . . Instead,
             Scott applied his push bumper to the rear of respondent's
             vehicle. As a result, respondent lost control of his
             vehicle, which left the roadway, ran down an
             embankment, overturned, and crashed. Respondent was
             badly injured and was rendered a quadriplegic.

Scott v. Harris, 127 S. Ct. 1769, 1773–74 (2007). The Supreme Court concluded

that “it was reasonable for Scott to take the action that he did,” and he was entitled

to qualified immunity. Id. at 1778–79.

      Upon remand, we vacated our prior decision and remanded the case to the

district court. The district court adopted our mandate and concluded that there

were no remaining issues to be decided. In this final appeal, Harris seeks to revive

his state law claims against Scott, Fenninger, and Yeager, which were disposed of

by the district court in earlier summary judgment orders.

      We review the grant of summary judgment by a district court de novo.

Beshers v. Harrison, 495 F.3d 1260, 1265 (11th Cir. 2007). Summary judgment is

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appropriate when “there is no genuine issue as to any material fact” and “the

moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

      Harris argues that the district court erred when it granted summary judgment

against his complaints of negligence and battery. Harris argues that there was

sufficient evidence to support a finding that the law enforcement officers acted

with “actual malice or actual intent to cause injury.” We disagree.

      Under Georgia law, an officer’s pursuit of a fleeing suspect “shall not be the

proximate cause or a contributing proximate cause of the damage, injury or death

caused by the fleeing suspect unless the law enforcement officer acted with

reckless disregard for proper law enforcement procedures,” Ga. Code Ann. § 40-6-

6(d)(2), but when the injured party is the fleeing suspect, the rule is different. City

of Winder v. McDougald, 583 S.E.2d 879, 881 (Ga. 2003). In City of Winder, the

Supreme Court of Georgia concluded that “[b]ecause the legislature enacted

subsection (d)(2) to limit liability when a fleeing suspect injures an innocent

person . . . the legislature did not intend simultaneously to expand liability to cover

injuries to the fleeing suspect.” Id. at 880. The court left open the possibility that

“[t]he fleeing suspect may be able to recover for her own injuries if an officer acts

with an actual intent to cause injury.” Id. at 881. The court referenced its earlier

opinion of Kidd v. Coates, 518 S.E.2d 124 (Ga. 1999), in which it cited with



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approval the definition of a Missouri appellate court of the phrase, “actual intent to

cause injury.”

               The phrase “actual intent to cause injury” has been
               defined in a tort context to mean “an actual intent to
               cause harm to the plaintiff, ‘not merely an intent to do the
               act purportedly resulting in the claimed injury.’ . . . ‘This
               definition of intent contains aspects of malice, perhaps a
               wicked or evil motive.’”

Id. at 125 (citing Frame v. Boatmen’s Bank, 782 S.W.2d 117, 121 (Mo. App.

1989).

         Although it is unclear whether Georgia law ever allows a fleeing suspect to

recover for his own injuries, the Supreme Court of Georgia has held that a fleeing

suspect is not entitled to recover for his injuries when “there was no evidence that

the officer acted with malice or an actual intent to cause injury.” See City of

Winder, 583 S.E.2d at 881. That precedent governs this appeal. Harris cannot

recover because he has not identified evidence of malice or an “actual intent to

cause injury” by the pursuing law enforcement officer.

         The summary judgment is

         AFFIRMED.




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