                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                     FILED
                         ________________________          U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                  Aug. 27, 2008
                               No. 08-11172                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                    D. C. Docket No. 06-00953-CV-1-MEF


GREG DAVIS, as next friend and natural guardian of J.D.,


                                                              Plaintiff-Appellant,

                                    versus

HOUSTON COUNTY, ALABAMA BOARD OF EDUCATION,

                                                            Defendant-Appellee.


                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Alabama
                        _________________________

                               (August 27, 2008)


Before TJOFLAT, BLACK and HILL, Circuit Judges.

PER CURIAM:
      Greg Davis sued the Houston County, Alabama Board of Education, on

behalf of his son, Joshua Davis, who was expelled by it for having struck two of

his football coaches after he was removed from a football game. Davis claims that

the defendant is liable to his son under 42 U.S.C. § 1983 for violating his son’s

right to equal protection under the Fourteenth Amendment. He claims that the

defendant did not expel two similarly situated students and, therefore, violated his

son’s right under the equal protection clause to be free from intentional

discrimination at the hands of government officials. See Village of Willowbrook v.

Olech, 528 U.S. 562, 564 (2000) (per curiam); Campbell v. Rainbow City, 434 F.3d

1306, 1313-14 (11 th Cir. 2006). The district court granted summary judgment to

the defendant board of education. We review this grant de novo. Arrington v.

Helms, 438 F.3d 1336, 1341 (11 th Cir. 2006).

      In order for another student to be similarly situated to Joshua Davis, plaintiff

must show that the students are “prima facie identical in all relevant respects.”

Campbell, 434 F.3d at 1314. Two individuals are “similarly situated” if the

quantity and quality of the comparator’s misconduct is “nearly identical” to the

individual raising the discrimination claim. Maniccia v. Brown, 171 F.3d 1364,

1368 (11 th Cir. 1999).

      Plaintiff has offered two students whom he claims are similarly situated to



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Joshua Davis, but who were not expelled. The first student, however, was

involved in “horseplay” by the sole victim’s own testimony, who urged that he be

“talked to” but not disciplined. The second proposed comparator was a sixth grade

student who did not strike anyone. We conclude that neither of these proposed

comparators is similarly situated to Joshua Davis under the law of this circuit. See

Maniccia, 171 F.3d at 1368 (comparators who did not do what the plaintiff did are

not similar); Hammock ex rel. Hammock v. Keys, 93 F. Supp. 2d 1222, 1232 (S.D.

Ala. 2000) (equal protection does not require that elementary and high school

students be treated identically in school discipline cases). Accordingly, plaintiff

has not established a prima facie case of intentional discrimination against his son

under the Fourteenth Amendment, and the judgment of the district court is due to

be

      AFFIRMED.




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