[DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________          FILED
                                                 U.S. COURT OF APPEALS
                              No. 09-16083         ELEVENTH CIRCUIT
                                                   SEPTEMBER 20, 2010
                        ________________________
                                                        JOHN LEY
                                                         CLERK
                      D. C. Docket No. 07-00079-CV-5


JAMIE MCDANIEL,


                                                                Plaintiff-Appellee,

                                    versus

ROBERT SMITH,


                                                          Defendant-Appellant,

ALAN G. PAULK, JR., et al.,

                                                                      Defendants.


                        ________________________

                 Appeal from the United States District Court
                    for the Southern District of Georgia
                      _________________________

                              (September 20, 2010)

Before HULL, MARTIN and FAY, Circuit Judges.
PER CURIAM:

      After review and oral argument, and accepting Plaintiff-Appellee’s version

of the facts at this interlocutory stage, we conclude Defendant-Appellant Sheriff

Robert Smith, sued individually, has not shown reversible error in the district

court’s order (dated October 29, 2009) which (1) denied qualified immunity as to

Plaintiff-Appellee’s federal claims brought under 42 U.S.C. §§ 1983 and 1988 in

Counts 4, 5, and 7, and (2) denied official immunity as to Plaintiff-Appellee’s state

law claims in Counts 10, 11, 12, and 14. On appeal, we note Defendant-Appellant

Smith did not present argument as to Counts 17 (attorneys’ fees) or 18 (punitive

damages).

      However, we reverse the district court’s denial of qualified immunity to

Defendant-Appellant Smith on the §§ 1983 and 1988 federal claims in Count 1 to

the extent that count alleges a separate substantive due process claim under solely

the Fourteenth Amendment because that count fails to state a separate

constitutional violation.

      There is a factual issue about whether Harper was acting on his own or at

Sheriff Smith’s direction and as his agent, which impacts certain counts in the

Amended and Restated Complaint. To the extent an election, if any, is needed

between different counts, we leave that issue to the district court in the first



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instance.

      AFFIRMED IN PART, REVERSED IN PART AND REMANDED.




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