from the United States District Court for the Northern
District of Georgia D.C. Docket No. 1:15-cv-02715-TWT
WILLIAM PRYOR and ROSENBAUM, Circuit Judges, and URSULA
ROSENBAUM, Circuit Judge.
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 http://www.ancient.eu/
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
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
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
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.
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.
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
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.
"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
filed suit against Fransen, Ross, Towler, Draco, Gwinett
County, and Gwinnett County Police Chief A.A.
Ayers. 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.
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."
now appeal. Despite notice, however, Jones has not filed a
brief or otherwise appeared in the appeal proceedings.
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).
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).
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
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).
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).
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
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 ...