              Case: 13-11467    Date Filed: 10/16/2013     Page: 1 of 8


                                                               [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-11467
                            Non-Argument Calendar
                          ________________________

                       D.C. Docket No. 1:11-cv-03835-JOF



MELANIE SMALLWOOD,

                                                 Plaintiff - Appellant,

versus

EDWIN F. AINSWORTH,
Cobb County Police Officer - In his individual capacity,

                                                 Defendant - Appellee.

                          ________________________

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

                                (October 16, 2013)

Before TJOFLAT, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
              Case: 13-11467     Date Filed: 10/16/2013    Page: 2 of 8


      Melanie Smallwood appeals the district court’s grant of defendant Edwin

Ainsworth’s motion for summary judgment. Pursuant to 42 U.S.C. § 1983,

Smallwood filed suit against Cobb County Police Officer Ainsworth, alleging that

he violated her Fourth Amendment right to be free from unreasonable seizure

when he arrested her for driving under the influence without probable cause. The

district court granted Ainsworth’s motion for summary judgment, finding that no

constitutional violation took place. The district court also found that even if a

constitutional violation had occurred, Ainsworth would be entitled to qualified

immunity. Smallwood now appeals.

                                          I.

      The facts are as follows. On November 8, 2009, Officer Ainsworth, a 20-

year veteran of the Cobb County Police Department, was on duty and received

information from another officer about a possible impaired driver. The time was

2:00 a.m. As a result of this information, he began following Smallwood’s vehicle,

which matched the reporting officer’s description of the possible impaired driver: a

light colored minivan driving erratically westbound on Macland Road in Cobb

County, Georgia. Ainsworth testified that he observed Smallwood swerve and

sway in her lane, once almost striking the curb. Smallwood denies driving in such

a manner. Ainsworth followed Smallwood for some time and after he again




                                          2
               Case: 13-11467      Date Filed: 10/16/2013   Page: 3 of 8


observed her car touch the divider lines he determined that he had probable cause

to pull her over for a traffic stop.

       After Ainsworth pulled Smallwood over, he approached her car to speak

with her. When Smallwood rolled down her window, Ainsworth detected an odor

of alcohol. Ainsworth asked whether Smallwood had been drinking. She denied

having had anything to drink, informed Ainsworth that she had taken cough

medicine, and suggested that the medicine might be what Ainsworth smelled.

       Ainsworth stated that Smallwood’s eyes were bloodshot and watery. In

addition, she swayed back and forth when she exited the vehicle in order to

complete the field sobriety tests. Ainsworth conducted three different field

sobriety tests. First, Ainsworth conducted the horizontal haze nystagmus test.

This test scores each eye for a maximum of six clues to detect impairment. Based

on his training and experience, Ainsworth determined that Smallwood tested

positive for all six clues. He next administered the “walk and turn” field sobriety

test. This test produces eight clues of impairment, and Ainsworth determined that

Smallwood was positive for two clues, enough to constitute failure. Last,

Ainsworth administered the “one-leg stand” field sobriety test, which evaluates

coordination and balance. Smallwood indicated positive for two of the six clues

for impairment. Ainsworth then arrested Smallwood for driving under the

influence.


                                           3
              Case: 13-11467        Date Filed: 10/16/2013   Page: 4 of 8


      Ainsworth transported Smallwood to the Cobb County Adult Detention

Center and administered a breathalyzer test. Smallwood blew a 0.03, which was

below the legal limit. Ainsworth then informed Smallwood that while she was not

charged with driving under the influence, she was charged with reckless driving

and failure to maintain her lane. Smallwood remained at the Cobb County jail for

four hours and bonded out with a $400 to $550 bond. The charges were eventually

dismissed for insufficient proof.

      Smallwood brought suit alleging Ainsworth violated her Fourth Amendment

right to be free from unreasonable seizure. She also brought state law claims for

negligence, false arrest and/or imprisonment, and malicious prosecution.

Ainsworth moved for summary judgment, arguing that the stop and arrest did not

amount to a constitutional violation, and alternatively, suit was barred based on

qualified immunity. The district court granted Ainsworth’s motion for summary

judgment.

                                            II.

      “We review de novo the district court’s disposition of a summary judgment

motion based on qualified immunity, resolving all issues of material fact in favor

of [the plaintiff] and then answering the legal question of whether [the defendant

is] entitled to qualified immunity under that version of the facts.” Case v. Eslinger,




                                            4
              Case: 13-11467     Date Filed: 10/16/2013    Page: 5 of 8


555 F.3d 1317, 1324–25 (11th Cir. 2009) (internal quotation marks and emphasis

omitted).

      “Qualified immunity protects government actors performing discretionary

functions from being sued in their individual capacities.” Holmes v. Kucynda, 321

F.3d 1069, 1077 (11th Cir. 2003). It offers complete protection for government

officials so long as “their conduct does not violate clearly established statutory or

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

Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982). The doctrine

“balances two important interests—the need to hold public officials accountable

when they exercise power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform their duties reasonably.”

Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815 (2009). We have

often said that qualified immunity “protect[s] from suit all but the plainly

incompetent or one who is knowingly violating the federal law.” E.g., Lee v.

Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (internal quotation marks omitted).

      Once an official demonstrates that he was performing a discretionary

function, the plaintiff bears the burden to prove that qualified immunity does not

insulate the official from liability. Crosby v. Monroe County, 394 F.3d 1328, 1332

(11th Cir. 2004). The parties do not dispute that Ainsworth was engaged in a

discretionary function when he made the arrest in this case; Smallwood therefore


                                           5
               Case: 13-11467     Date Filed: 10/16/2013    Page: 6 of 8


shoulders the burden of proving that Ainsworth does not enjoy qualified immunity

protection. This she cannot do.

      In determining whether an officer is qualifiedly immune, we undertake a

two-part inquiry, asking: (1) whether the facts, taken in the light most favorable to

the plaintiff, demonstrate that the officer’s conduct violated a constitutional right

of the plaintiff; and (2) whether the right allegedly violated was clearly established.

Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156 (2001). For a right to be

clearly established, “[t]he contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing violates that right.”

Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039 (1987). Finally,

we are “permitted to exercise [our] sound discretion in deciding which of the two

prongs of the qualified immunity analysis should be addressed first in light of the

circumstances in the particular case at hand.” Pearson, 555 U.S. at 236, 129 S. Ct.

at 818.

      Here, Smallwood alleges that Ainsworth violated her constitutional rights

because there was no probable cause to pull her over for a traffic violation.

Probable cause is “a standard well short of absolute certainty.” Los Angeles

County v. Rettele, 550 U.S. 609, 615, 127 S. Ct. 1989, 1993 (2007). “Th[e]

standard is met when the facts and circumstances within the officer’s knowledge,

of which he or she has reasonably trustworthy information, would cause a prudent


                                           6
              Case: 13-11467     Date Filed: 10/16/2013   Page: 7 of 8


person to believe, under the circumstances shown, that the suspect has committed,

is committing, or is about to commit an offense.” Lee, 284 F.3d at 1195 (internal

quotation marks omitted). “Probable cause requires more than mere suspicion, but

does not require convincing proof.” Rankin v. Evans, 133 F.3d 1425, 1435 (11th

Cir. 1998) (internal quotation marks omitted). The probable cause analysis is

undertaken in light of the totality of the circumstances, and the standard “must be

judged not with clinical detachment[] but with a common sense view to the

realities of normal life.” Craig v. Singletary, 127 F.3d 1030, 1042 (11th Cir. 1997)

(quoting Wilson v. Attaway, 757 F.2d 1227, 1235 (11th Cir. 1985)).

                                         III.

      Looking at the totality of the circumstances, Ainsworth had probable cause

to stop Smallwood and arrest her on suspicion of impaired driving. Ainsworth

testified that: (1) he observed Smallwood’s car swerve in her lane and almost hit a

curb; (2) when he approached the car and Smallwood rolled down her window, he

smelled alcohol; (3) Smallwood’s eyes were bloodshot and watery, and she swayed

when she exited the vehicle to perform the field sobriety tests; and (4) when he

administered the field sobriety tests, Smallwood exhibited several of the clues that

indicate impairment. Because Ainsworth had probable cause to stop and then

arrest Smallwood on suspicion of impaired driving, there was no constitutional




                                          7
              Case: 13-11467      Date Filed: 10/16/2013   Page: 8 of 8


violation. The district court, therefore, properly granted Ainsworth’s motion for

summary judgment as to the federal constitutional claims.

      The district court also properly granted summary judgment as to

Smallwood’s allegations of state law claims. “A suit against a public officer acting

in his or her official capacity will be barred by official immunity unless the public

officer (1) negligently performed a ministerial duty, or (2) acted with actual malice

or an actual intent to cause injury while performing a discretionary duty.” Tant v.

Purdue, 629 S.E.2d 551, 553 (Ga. Ct. App. 2006) (internal quotation marks

omitted). Neither party disputes Ainsworth was performing a discretionary duty

when he stopped Smallwood and arrested her for impaired driving. Smallwood’s

state law claims fail, however, because Ainsworth did not do so with malice or

intent to cause injury. See id.

      AFFIRMED.




                                          8
