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Jones v. Fransen

United States Court of Appeals, Eleventh Circuit

May 19, 2017

RANDALL KEVIN JONES, Plaintiff-Appellee,
OFFICER S. FRANSEN, in his individual capacity, OFFICER TOWLER, in his individual capacity, OFFICER ROSS, in his individual capacity, K-9 DRACO, in his individual capacity, CHIEF A.A. AYERS, and GWINNETT COUNTY, Defendants-Appellants.

         Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:15-cv-02715-TWT

          Before WILLIAM PRYOR and ROSENBAUM, Circuit Judges, and URSULA UNGARO, [*] District Judge.

          ROSENBAUM, Circuit Judge.

         In history and literature, the name "Draco" has been associated with some notorious characters. Draco of ancient Greece is perhaps best known for the harsh legal code he composed, which inspired the word "draconian." Antonios Loizides, Draco's Law Code, Ancient History Encyclopedia Dracos_Law_Code/ (last visited May 12, 2017). Draco Lucius Malfoy, of course, is Harry Potter's perpetually maleficent rival in the Harry Potter literary series.[1]

         And to the list of infamous Dracos, add Defendant-Appellant Draco. Draco is a police canine who was involved in the apprehension of Plaintiff Randall Kevin Jones. Unfortunately, Draco inflicted some serious damage on Jones when Draco refused to release his bite. Jones sued Draco, among others, for negligence. Georgia law by its terms, however, does not provide for negligence actions directly against dogs. We therefore hold as much today and reverse the district court's denial of Defendant-Appellants' motion to dismiss Draco.

          But while Georgia law does not allow for a negligence suit against a dog, it does permit negligence claims against a state officer who is not entitled to official immunity. Title 42, United States Code, Section 1983 likewise authorizes an action against a police officer who employs a dog in an exercise of excessive force. And Jones also sued the officers responsible for Draco's encounter with Jones. In response, Defendant-Appellant Officers invoked official and qualified immunity and moved to dismiss. The district court summarily denied Defendant-Appellant Officers' motion. Today we must reverse that denial and dismiss the claims. Jones has failed to allege facts establishing that the officer acted with malice, so the officers are entitled to official immunity. Nor does binding precedent allow for the conclusion that Defendant Officers' employment of Draco in the circumstances of this case violated Jones's clearly established rights, so the officers have qualified immunity.


         The trouble in this case began when Jones and his girlfriend broke up. Following the split, on July 6, 2013, Jones's ex-girlfriend called 911 to report that Jones had broken into her apartment and was carrying a television to his car, which was parked at her apartment complex.

         Two of the officers who responded to the call included Defendant-Appellants Gwinnett County Police Department Officers Brandon Towler and Richard Ross. Towler and Ross searched the apartment-complex area for Jones. Meanwhile, another officer claimed to have seen Jones carrying a bag and a television near the apartment pool.

         At some point, Defendant Officers believed that Jones had fled to a "steep ravine pond area with high concert walls, boulders and vegetation." Defendant-Appellant Officer Scott Fransen, who worked with police-canine Draco, arrived on the scene to look for Jones and issued what are known as K-9 warnings. After hearing no response, Fransen and Draco entered the ravine to find Jones. Ross and another officer provided backup.

         During the search for Jones, Fransen saw Jones motionless, at the bottom of the ravine. But Fransen had already released Draco, and Draco "r[a]n loose and savagely attack[ed] and t[ore]" Jones's left arm, even though Jones lay motionless during the attack. Ross, who was also present, did nothing to protect Jones from the attack.

         After "a while" passed, which Jones described as "seem[ing] like a lifetime, " Fransen tried to pull Draco from Jones's arm, but Draco refused to yield. Finally, however, Fransen was able to separate Draco from Jones. But unfortunately, the damage was done. This incident permanently disfigured and limited the use of Jones's arm.


         Jones filed suit against Fransen, Ross, Towler, Draco, Gwinett County, and Gwinnett County Police Chief A.A. Ayers.[3] In Count I, Jones alleged a claim against Fransen under 42 U.S.C. § 1983 for the use of excessive force, in violation of the Fourth Amendment to the United States Constitution. Count II asserted a claim under § 1983 for excessive use of force, against the other officers, based on their failure to intervene and stop the canine attack. In Count III, Jones brought a claim for negligence against all Defendants. And finally, in Count IV, Jones set forth a § 1983 claim against Gwinnett County, charging that through its allegedly inadequate police training, it had violated his Fourth Amendment right to be free from the use of excessive force.

         Defendants moved to dismiss the case for failure to state a claim, invoking qualified immunity with respect to Counts I and II. With regard to the state-law negligence claim, Defendants contended, among other arguments, that the County and Defendant Police Chief Ayers in his official capacity were entitled to sovereign immunity, and Defendant Officers and Ayers in their individual capacities were entitled to official immunity. The district court denied the motion. After setting forth the applicable law on the standard on a motion to dismiss, the court wrote, "The Plaintiff has stated a plausible claim with respect to his allegation that the canine officer subjected him to excessive force. The Defendants' Motion to Dismiss . . . is DENIED. The issues of municipal liability and qualified immunity may be revisited at the summary judgment stage."

         Defendants now appeal. Despite notice, however, Jones has not filed a brief or otherwise appeared in the appeal proceedings.


         Title 28, United States Code, Section 1291 limits our appellate jurisdiction to final decisions of the district courts. 28 U.S.C. § 1291. But we use a "practical rather than a technical construction" to construe § 1291's limitations. Royalty Network, Inc. v. Harris, 756 F.3d 1351, 1355 (11th Cir. 2014) (citation and internal quotation marks omitted). As a result, under what is known as the collateral-order doctrine, § 1291 extends appellate jurisdiction over "not only judgments that terminate an action, but also a small class of collateral rulings that, although they do not end the litigation, are appropriately deemed 'final.'" Id. (citation and internal quotation marks omitted). District-court decisions falling into this category must meet three requirements: they must "(1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment." Id. (citation and internal quotation marks omitted).

         Here, Defendants appeal the district court's denial of their motion to dismiss. Generally, such an order does not qualify as a "final decision." Parker v. Am. Traffic Sols., 835 F.3d 1363, 1367 (11th Cir. 2016). But the Supreme Court has long recognized that denial of a motion to dismiss on qualified-immunity grounds "easily meets" the demands of the collateral-order doctrine because, among other reasons, qualified immunity is an immunity not only from liability but also from suit. See Mitchell v. Forsyth, 472 U.S. 511, 526-27 (1985).

         For the same reason, defendants may immediately appeal an order denying state official or sovereign immunity, provided that the applicable state law defines the immunity at issue as one from suit instead of from just liability. Parker, 835 F.3d at 1367-68. Georgia law does. Griesel v. Hamlin, 963 F.2d 338, 341 (11th Cir. 1992) (per curiam) ("sovereign immunity under Georgia law is an immunity from suit"); Shekhawat v. Jones, 746 S.E.2d 89, 91 (Ga. 2013) ("official immunity protects state employees from being sued in their personal capacities") (emphasis added and omitted); Ga. Code Ann. § 15-21-25(a) ("A state officer or employee who commits a tort while acting within the scope of his or her official duties or employment is not subject to lawsuit or liability therefor.") (emphasis added).

         So we have jurisdiction to review the district court's denial of qualified immunity, sovereign immunity, and official immunity. But that leaves the question of whether we may review the district court's decision to deny the County's motion to dismiss as it pertains to Jones's § 1983 municipal-liability claim. Decisions denying dismissal of such claims generally are not immediately appealable in their own right, as they do not constitute "final decisions" within the meaning of the collateral-order doctrine. Swint v. Chambers Cty. Comm'n, 514 U.S. 35, 43 (1995).

         We therefore consider whether we may review the claim under the pendent-appellate-jurisdiction doctrine. That doctrine allows us to "address [otherwise] nonappealable orders if they are inextricably intertwined with an appealable decision or if review of the former decision [is] necessary to ensure meaningful review of the latter." Hudson v. Hall, 231 F.3d 1289, 1294 (11th Cir. 2000) (citation and internal quotation marks omitted) (alteration adopted). We have explained that "[m]atters may be sufficiently intertwined when they implicate[] the same facts and the same law." Smith v. LePage, 834 F.3d 1285, 1292 (11th Cir. 2016) (citation and internal quotation marks omitted) (alteration adopted).

         Here, Gwinnett County makes no argument that the issue raised in the municipal-liability claim under § 1983 is inextricably intertwined with the claims of qualified, sovereign, or official immunity. Nor does it seem to us that the issue is inextricably intertwined. While the claims presented stem from a single incident, the municipal-liability claim raises the wholly separate issue of whether Gwinnett County had a policy, custom, or practice of deliberate indifference and inadequate training of its officers regarding the use of police dogs. This is not an issue that must be determined-or even considered-in resolving the immunity claims. Under these circumstances, we do not find the requirements of the pendent-appellate-jurisdiction doctrine to be satisfied. See Swint, 514 U.S. at 51. For this reason, we do not entertain Gwinnett County's appeal as it relates to Count IV, the § 1983 municipal-liability claim.

         Our review of the district court's denial of the various types of immunity invoked in this case is de novo. Carollo v. Boria, 833 F.3d 1322, 1328 (11th Cir. 2016) (qualified immunity); Johnson v. Conner, 720 F.3d 1311, 1313 (11th Cir. 2013) (sovereign immunity); Bailey v. Wheeler, 843 F.3d 473, 480 (11th Cir. 2016) (official immunity). In conducting our review, we accept as true all well-pled factual ...

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