[DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________          FILED
                                                   U.S. COURT OF APPEALS
                                No. 09-11743         ELEVENTH CIRCUIT
                                                         JUNE 17, 2010
                            Non-Argument Calendar
                                                          JOHN LEY
                          ________________________
                                                           CLERK

                  D. C. Docket No. 07-00279-CV-3-MCR-MD

RONALD D. FLEMING,
ROBBYE J. FLEMING,

                                                            Plaintiffs-Appellants,

                                     versus

DEPUTY TAMA BARBER,
Escambia County Deputy Sheriff,
ROBERT WELLER,
Escambia County Deputy Sheriff,
JERRY GULSBY,
Escambia County Deputy Sheriff,
STAN REED,
Escambia County Deputy Sheriff,
SHANE LEWIS,
Escambia County Deputy Sheriff, et al.,

                                                           Defendants-Appellees.

                          ________________________

                   Appeal from the United States District Court
                       for the Northern District of Florida
                         _________________________
                                 (June 17, 2010)
Before EDMONDSON, MARCUS and ANDERSON, Circuit Judges.


PER CURIAM:



       Plaintiffs-Appellants Ronald D. Fleming and his wife Robbye J. Fleming

brought suit against a host of local, state and federal officials1 alleging violations of

the Fourth and Fourteenth Amendments arising from a 2005 search of their home,

the seizure of their property, and the related arrest and prosecution of Ronald D.

Fleming for sexual battery of a minor. The district court granted the Defendant’s

Rule 12(b)(6) motions to dismiss; summary judgment was granted in favor of the

other Defendants. No reversible error has been shown; we affirm.

       We summarize briefly the facts.2 In the spring of 2005, Fleming was being

investigated based on allegations that he had sexually abused a young girl who,

along with her mother and younger sibling, had resided with the Flemings.


       1
        Defendants-Appellees include law enforcement officers from Escambia, Santa Rosa and
Okaloosa counties, the City of Pensacola police department, the Florida State Attorney and two
Assistant State Attorneys, an employee of the United States Navy Crime Investigation Service,
and a United States Marshal. Other defendants also were named below but are not appellees in
this appeal. Suit against persons alleged to have been acting under color of state law was
brought pursuant to 42 U.S.C. § 1983; suit against federal actors was pursuant to Bivens, Bivens
v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 

(1971).
       2
        Plaintiffs failed to include a statement of disputed facts in response to the law
enforcement defendants’ motion for summary judgment. Pursuant to the local rules of the
United States District Court for the Northern District of Florida, the material facts set out by the
law enforcement defendants is deemed admitted by Plaintiffs.

                                                  2
Defendant Barber observed the child’s interview by the child protection team; she

prepared a search warrant and affidavit in support of the warrant which she

submitted to Judge Kinsey. Judge Kinsey issued the search warrant and attested

that the supporting affidavit had been “sworn to and subscribed” before her. In

fact, Defendant Barber had failed to sign the affidavit.3

       Plaintiffs’ claims of unconstitutional acts chiefly are dependant on the

absence of Barber’s signature on the affidavit.4 Based on this deficiency, Plaintiffs

argue that Barber and all the other law enforcement officials participating in the

search knew or should have known that the search warrant was invalid and knew or

should have known that a search pursuant to the warrant violated Plaintiffs’ Fourth

Amendment rights. Plaintiffs sought discovery generally on the immunity

defenses asserted by Defendants; discovery specifically was sought on the issue of

whether Barber knew the facially valid search warrant for the Fleming residence

was invalid.5


       3
         The affidavit in support of the search warrant for the Fleming residence was one of
several affidavits in support of search warrants presented by Defendant Barber to Judge Kinsey
at the same time. Defendant Barber first learned that the Fleming affidavit was unsigned by her
during the state criminal proceedings against Ronald Fleming; the state court ruled that the
absence of Barber’s signature was fatal to the validity of the search warrant.
       4
        We see no merit in Plaintiffs’ challenge to the sufficiency of the information in the
probable cause affidavit.
       5
        Plaintiffs speculate that Judge Kinsey failed to review the affidavit and warrant before
signing the warrant in Barber’s presence and, because of that alleged failure, the warrant was

                                                 3
Discovery



       The district court concluded that Plaintiffs failed to explain sufficiently why

discovery was warranted, that the discovery sought would burden unfairly

Defendants, and that no information likely would be obtained that would be

relevant or helpful to the court’s qualified immunity analysis.

       Qualified immunity constitutes more than a defense to liability; it is an

immunity from suit and, whenever possible, the distractions of pre-trial discovery.

See Mitchell v. Forsyth, 

, 2815 (1985). Once a defendant raises the

qualified immunity defense, “the trial court must exercise its discretion in a way

that protects the substance of the qualified immunity defense. It must exercise its

discretion so that officials are not subjected to unnecessary and burdensome

discovery or trial proceedings.” Crawford-El v. Britton, 

, 1696

(1998); see Harbert Intern., Inc. v. James, 

, 1280 (11th Cir. 1998).

The Supreme Court has “made clear that the ‘driving force’ behind creation of the

qualified immunity doctrine was a desire to ensure that ‘insubstantial claims’

against government officials [will] be resolved prior to discovery.” Pearson v.



invalid. Extrapolating on this underlying and unsupported premise, Plaintiffs argue that Barber
knew the facially valid search warrant was invalid because Barber witnessed the Judge’s alleged
failure.

                                               4
Callahan, 

, 815 (2009) (internal citation omitted)(alteration in

original). No abuse of discretion has been shown; we see no error in the denial of

discovery.



Qualified Immunity



      “Qualified immunity protects government officials performing discretionary

functions from suits in their individual capacities unless their conduct violates

clearly established statutory or constitutional rights of which a reasonable person

would have known.” Whittier v. Kobayashi, 

, 1307 -1308 (11 th Cir.

2009) (internal quotations and citations omitted). Plaintiffs do not dispute that

each law enforcement defendant was acting within the scope of his or her

discretionary authority when the complained of acts occurred. Because

Defendants were engaged in a discretionary function, the burden shifts to the

Plaintiffs -- the section 1983 claimants -- to show that no entitlement to qualified

immunity exists. Holloman ex rel. Holloman v. Harland, 370 F3d. 1252, 1264

(11th Cir. 2004). To do this, Plaintiffs must show (1) the violation of a

constitutional right; and (2) that this constitutional right was clearly established at

the time of the alleged violation. 

district court concluded correctly that the search warrant for Plaintiffs’s

residence was facially valid: it referenced an affidavit establishing probable cause,

described in sufficient detail the place to be searched and the things to be seized,

and was signed by an authorized judicial officer. As fully explained by the district

court, Defendants participating in the execution of the search warrant -- with the

possible exception of Barber -- were entitled to rely on the facial validity of the

warrant. And, also as explained by the district court, undisputed testimony shows

that Barber’s failure to sign the affidavit was inadvertent and unknown to Barber

when the search warrant was obtained. Negligent or innocent mistakes in a warrant

application support no Fourth Amendment constitutional claim. See Maughon v.

Bibb County, 

, 660 (11th Cir. 1998); Madiwale v. Savaiko, 

, 1327 (11 th Cir. 1997).

      For the reasons fully explained in the district court’s opinion, Defendants’

motion for summary judgment based on qualified immunity was due to be granted.6

      We have considered all grounds asserted by Plaintiffs and conclude no

reversible error has been shown.

       6
         Plaintiffs’s brief includes no argument challenging the arrest of Ronald Fleming. To the
extent this argument was made in District Court, it is deemed abandoned on appeal. Plaintiffs’
brief mentions a press release made by Defendant Gowitzke that misstated inadvertently Ronald
Fleming’s criminal history; because no argument is made that the inaccurate press release
violated Fleming’s due process rights, Fleming is deemed to have abandoned a due process
claim. For the reasons stated by the district court, Plaintiffs’ claim for injunctive relief against
Judge Kinsey properly was dismissed.

                                                 6
AFFIRMED.




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