Filed: Dec. 08, 2006
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT December 8, 2006 No. 06-11381 THOMAS K. KAHN _ CLERK D. C. Docket No. 03-03002-CV-CAP-1 RICHARD KJELLSEN, Plaintiff-Appellee, versus TERRY MILLS, WILLIAM H. WALL, et al., Defendants-Appellants. _ Appeal from the United States District Court for the Northern District of Georgia _ (December 8, 2006) Before BIRCH and BLACK, Circuit Judges and MILLS,* District Judge. PER CUR
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT December 8, 2006 No. 06-11381 THOMAS K. KAHN _ CLERK D. C. Docket No. 03-03002-CV-CAP-1 RICHARD KJELLSEN, Plaintiff-Appellee, versus TERRY MILLS, WILLIAM H. WALL, et al., Defendants-Appellants. _ Appeal from the United States District Court for the Northern District of Georgia _ (December 8, 2006) Before BIRCH and BLACK, Circuit Judges and MILLS,* District Judge. PER CURI..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 8, 2006
No. 06-11381 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-03002-CV-CAP-1
RICHARD KJELLSEN,
Plaintiff-Appellee,
versus
TERRY MILLS,
WILLIAM H. WALL, et al.,
Defendants-Appellants.
_______________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(December 8, 2006)
Before BIRCH and BLACK, Circuit Judges and MILLS,* District Judge.
PER CURIAM:
*
Honorable Richard Mills, United States District Judge for the Central District of
Illinois, sitting by designation.
Defendants-Appellants Mills, Wall, Callahan, Brown and Herrin
(Appellants) appeal the district court’s ruling on summary judgment denying them
qualified immunity.1 In particular, Appellants challenge the district court’s finding
that they provided insufficient evidence that the alleged unconstitutional actions
were within their discretionary authority.2 Based on the evidence set forth in the
Appellants’ motion for summary judgment and their briefs on appeal, the district
court was correct in finding they presented insufficient evidence that the alleged
unconstitutional actions were within their discretionary authority. We remand the
case for further consideration of the Appellants’ motion for summary judgment,
however, because, although not presented to either the district court or this Court,
there is relevant evidence in the record, in the form of depositions, as to whether
Appellants acted in their discretionary capacities. We conclude these depositions
need to be fully briefed to and analyzed by the district court.
1
This Court only has jurisdiction over the denial of qualified immunity on interlocutory
appeal. See Mitchell v. Forsyth, 105 S. Ct. 2806, 2817 (1985) (holding that a district court’s
denial of a claim of qualified immunity is an appealable final decision so long as it turns on a
question of law). We do not address any of the district court’s other rulings on summary
judgment.
2
The Plaintiff-Appellee, Richard Kjellsen, alleges the Appellants knowingly failed to
report mitigating evidence in the form of several blood tests, which were below the legal level
for a per se driving under the influence violation. Kjellsen alleges this failure to report resulted
in violations of both his Fourth and Sixth Amendment rights.
2
I. STANDARD OF REVIEW
This Court conducts de novo review on an interlocutory appeal from the
denial of qualified immunity. Tinker v. Beasley, 429 F.3d 1324, 1326 (11th Cir.
2005). When reviewing a denial of summary judgment on grounds of qualified
immunity on interlocutory appeal, this Court takes the facts in the light most
favorable to the plaintiff. Robinson v. Arrugueta,
415 F.3d 1252, 1257 (11th Cir.
2005).
II. DISCUSSION
In order to be eligible for summary judgment on grounds of qualified
immunity, the Appellants must have been engaged in a discretionary function.
Hollman v. Harland, 370 F.3d 1252, 1263–64 (11th Cir. 2004). The Appellants
have the burden to make this showing. Storck v. City of Coral Springs,
354 F.3d
1307, 1314 (11th Cir. 2003).
In the qualified immunity context, a discretionary function includes actions
that “are of a type that fell within the employee’s job responsibilities.” Hollman,
370 F.3d at 1265. This Court asks whether the government employee was
(1) performing a legitimate job-related function (pursuing a job-related goal)
(2) through means that were within her power to utilize. Hill v. Dekalb Reg’l
Youth Det. Ctr.,
40 F.3d 1176, 1185 n.17 (11th Cir. 1994).
3
In applying the above test, the most difficult task is characterizing a
defendant’s conduct. If framed too narrowly, such as whether it was within a
defendant’s discretion to violate a plaintiff’s constitutional rights, “the inquiry is
no more than an untenable tautology.” Hollman 370 F.3d at 1266. If framed too
generally, such as whether it was within a defendant’s discretion to perform acts to
further the public interest, then every act performed by a government employee
would qualify.
Id. The test developed by this Circuit is to characterize a
government official’s actions “at the minimum level of generality necessary to
remove the constitutional taint.”
Id. Therefore, applied to this case, we should not
ask whether the Appellants had the right to wrongfully withhold mitigating
evidence from the prosecutor and the court; rather, this Court should ask whether
the Appellants had the power to withhold test results for any reason.
Appellants presented only their individual declarations in both their motion
for summary judgment and their brief on appeal to support their claims for
summary judgment. The district court correctly indicated that “there must be more
than a bald assertion by the defendant that the complained-of actions were
undertaken pursuant to the performance of his duties within the scope of his
discretionary authority; there must be a showing by competent summary judgment
materials of objective circumstances that would compel that conclusion . . . .”
4
Harbert Int’l Inc. v. James, 157 F.3d 1271, 1282 (11th Cir. 1998). Appellants did
not present such evidence in their motion for summary judgment or their briefs.
Such evidence existed, however, in the record.3 Appellants filed, although
they did not reference, their depositions and the deposition of Amy Burden, the
analyst who conducted the tests on the plaintiff’s blood. In these depositions, the
Appellants and Amy Burden describe the Georgia Bureau of Investigation’s (GBI)
procedures for the analysis of blood-alcohol levels in blood samples. The
Appellants should more fully brief and the district court should analyze this
evidence on remand.
Several examples of the deposition testimony may be illustrative. For
instance, in Deputy Director Terry Mills’s deposition, he stated that “not
necessarily all data is reported in any conclusion that any scientist gives anywhere
in the world.” In addition, Mills stated that the allegedly mitigating results in this
case “had nothing to do with the issue of whether or not the results were the same”
but were tested for other reasons. In more detail, Deputy Director Lisa Callahan
testified that “[i]f the results are consistent then it’s left up to the analyst to decide
3
The depositions were filed on the same day as the motion for summary judgment, but
Appellants’ motion for summary judgment never analyzed or even mentioned the depositions in
reference to the issue of qualified immunity even though the district court had already found
there was insufficient evidence on the discretionary function issue when it denied Appellants’
motion to dismiss.
5
whether or not to report those findings.” Deputy Director George Herrin likewise
stated that he “would expect an analyst, any analyst to report a result which was
inconsistent with their original test. If they had a consistent result with the original
test then [he] think[s] it would be at their discretion.” For Herrin, “results which
are consistent then, you know they’re either going to be consistently exculpatory or
consistently inculpatory . . . .”
Consistent results, for the GBI employees, have a scientific meaning.
Deputy Director Herrin “consider[s] it scientific knowledge . . . if two results are
consistent based upon the knowledge of that particular discipline. . . .” According
to Herrin, the analyst will “make a call whether or not their answers are
consistent.” Dr. Robert Brown, the GBI’s expert on blood-alcohol testing and
Amy Burden’s supervisor, believes the analyst uses her “judgment, knowledge and
skills to determine what’s an acceptable product or not.” For a blood-alcohol
sample generally, Dr. Brown testified that the “general trend is decreasing
(amounts) through time.” For Dr. Brown, knowledge of this general decrease,
which he has seen as much as a .03 decrease in a given sample, must be
incorporated into an analyst’s judgment when determining whether the result is
consistent. Amy Burden acknowledged that “there could be a decrease based on
the volatility of the alcohol over time, over an extended period of time.”
6
The alleged mitigating tests in this case were also not run for the purpose of
verifying the original result. As Deputy Director Callahan testified, these tests
were run to determine whether the samples they were sending out for independent
testing were “suitable for testing.” Dr. Brown agreed, stating the tests “were not
run to be test results. These were run for something entirely different a year later.
It would not have been appropriate to” include them in the report.
Based on the above examples, we conclude that even a cursory look at the
depositions provides relevant evidence as to whether the Appellants, in their role as
GBI employees, were (1) performing a legitimate job-related function (pursuing a
job related goal) (2) through means that were within her power to utilize. Hill v.
Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1185 n.17 (11th Cir. 1994). Whether
there is sufficient evidence to prove the Appellants acted in their discretionary
function is best left to the district court on remand to further analyze the evidence.4
Our determination in this case is informed by the Supreme Court’s policy of
deciding qualified immunity as early as possible in the proceedings. A ruling on
qualified immunity “should be made early in the proceedings so that the costs and
expenses of trial are avoided where the defense is dispositive.” Saucier v. Katz,
4
We do not, however, want to limit the district court to the depositions. If the district
court needs more discovery to make the qualified immunity determination, the district court
should allow more discovery limited to the issue of whether the Appellants acted in their
discretionary capacities.
7
121 S. Ct. 2151, 2156 (2001). Qualified immunity is not a defense to the merits of
the action, but a privilege not to be subject to the burdens of litigation and trial.
Mitchell v. Forsyth,
105 S. Ct. 2806, 2815 (1985). One of those burdens and
expenses is expansive discovery and preparation for trial.
Id. As a result, the
Supreme Court has stressed repeatedly “the importance of resolving immunity
questions at the earliest possible stage in litigation.” Hunter v. Bryant,
112 S. Ct.
534, 536 (1991). We have concluded that relevant evidence exists as to whether
Appellants acted in their discretionary capacities, which was not presented to or
analyzed by the district court. We remand for a determination of whether such
evidence is sufficient to prevent these government officials from facing the
burdens and expenses associated with full discovery, preparation for trial, and the
trial itself.
III. CONCLUSION
Although the Appellants failed to present sufficient evidence that they acted
in their discretionary capacities in their briefs to this Court and their motion for
summary judgment in the district court, such evidence exists in the record. The
district court was correct in finding there was insufficient evidence based on what
Appellants presented to it on summary judgment. We remand, however, because
of the importance of deciding issues of qualified immunity as early as possible in a
8
proceeding and because evidence exists in the record that should be more fully
briefed to and analyzed by the district court.
REMANDED.
9
