Andrews v. Biggers, 20-11469

996 F.3d 1235

Oqueshia ANDREWS, Plaintiff-Appellant,

v.Carmel BIGGERS, Jr., in his individual and official capacity, Tim Pounds, in his official capacity as Douglas County Sheriff, Defendants-Appellees.

No. 20-11469

United States Court of Appeals, Eleventh Circuit.

May 7, 2021

David Gan-wing Cheng, David Cheng, Esq., Atlanta, GA, for Plaintiff - Appellant.

Sun S. Choy, Robert P. Marcovitch, Jacob Westin Loken, Sean Christopher Ryan, Freeman Mathis & Gary, LLP, Atlanta, GA, for Defendants-Appellees.

Before WILSON, ROSENBAUM, and ED CARNES, Circuit Judges.

ED CARNES, Circuit Judge:

Oqueshia Andrews alleges that Douglas County Sheriff's Deputy Carmel Biggers fondled her, kissed her, and watched her shower, all without her consent, when she was an inmate in the county jail. According to Andrews, the reason Biggers, who is male, could do those things is that Douglas County Sheriff Tim Pounds operates the jail with a policy that allows "cross-gender supervision of inmates without reasonable safeguards in place." Andrews sued Pounds in his official capacity under 42 U.S.C. § 1983, and the district court granted Pounds' motion to dismiss, concluding that under Purcell ex rel. Estate of Morgan v. Toombs County, 400 F.3d 1313 (11th Cir. 2005), Pounds was due Eleventh Amendment immunity because he acts as an arm of the State "when promulgating policies and procedures governing conditions of confinement" at the county jail. Id. at 1325.

Andrews concedes, as she must, that Purcell "control[s] the outcome of this case because both cases relate to the function of jail operations" and that the district court was "bound by precedent" to follow it. Since Georgia law as it relates to sheriffs' duties and control has not meaningfully changed since we issued Purcell, we agree. But Andrews wants Purcell overruled and our Court "to revisit the factors discussed" in Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003) (en banc), the decision on which Purcell relies and which she recognizes "runs contrary to her position." She believes Manders "misapplies" to Georgia sheriffs the Supreme Court's analysis in McMillian v. Monroe County, 520 U.S. 781, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997). Of course, we as a panel cannot overrule Manders or Purcell. "Under our prior precedent rule, a panel cannot overrule a prior one's holding even [if] convinced it is wrong." United States v. Steele, 147 F.3d 1316, 1317–18 (11th Cir. 1998) (en banc). We have "categorically reject[ed] any exception" to that rule "based upon a perceived defect in the prior panel's reasoning or analysis as it relates to the law in existence at that time." Smith v. GTE Corp., 236 F.3d 1292, 1303 (11th Cir. 2001). Those principles apply as strongly, if not more so, where the earlier precedent is an en banc decision.

The district court correctly held that Pounds was due Eleventh Amendment immunity under Purcell. See 400 F.3d at 1325.

AFFIRMED.

WILSON, Circuit Judge, concurring:

I concur in today's decision because Purcell ex rel. Estate of Morgan v. Toombs County , 400 F.3d 1313 (11th Cir. 2005), is binding precedent that controls the outcome of this case. I write separately, however, to express my view that Manders v. Lee , 338 F.3d 1304 (11th Cir. 2003) (en banc)—which Purcell relies on—was incorrectly decided. Judge Anderson and Judge Barkett wrote compelling dissents in Manders , both of which I joined. I continue to agree with their criticism of the Manders majority. Nonetheless, under our prior-precedent rule, we are bound to follow Manders and its progeny unless it "is overruled en banc or by the Supreme Court." United States v. Hogan , 986 F.2d 1364, 1369 (11th Cir. 1993). For this reason alone, I concur.

ROSENBAUM, Circuit Judge, concurring:

I concur in the panel's decision to affirm the district court's decision to dismiss Andrews's claim against Sheriff Pounds because he is entitled to sovereign immunity under binding case law. See Manders v. Lee , 338 F.3d 1304 (11th Cir. 2003) (en banc); Purcell ex rel. Estate of Morgan v. Toombs Cnty. , 400 F.3d 1313 (11th Cir. 2005). I write separately to explain why this Court should reevaluate this case law en banc, and in particular, our decision in Purcell .

Under the concept of Eleventh Amendment state sovereign immunity, our decisions in Manders and Purcell effectively insulate local governments in Georgia from liability in federal court when county sheriffs violate citizens' constitutional rights. For example, here, Douglas County is protected from liability even though, assuming the truth of Andrews's allegations, a Douglas County deputy sheriff engaged in a pattern and practice of sexually harassing and assaulting women incarcerated in Douglas County Jail. These are horrific and disturbing allegations, but under our precedent, the victims have no recourse against what is, in reality, the local government entity overseeing the county jail.

Our case law rests on misinterpretations of Georgia law and the Supreme Court's state sovereign-immunity precedent. My disagreement with this line of cases is not unusual; the sheer number and length of the dissents in these cases attest to that fact. See Manders , 338 F.3d at 1329 (Anderson, J., joined by Tjoflat, Birch, and Wilson, JJ., dissenting); id . at 1332 (Barkett, J., joined by Tjoflat, Birch and Wilson, JJ., and joined in part by Anderson, J., dissenting); Lake v. Skelton , 840 F.3d 1334, 1345 (11th Cir. 2016) (Parker, J., dissenting) (" Lake I "); Lake v. Skelton , 871 F.3d 1340, 1344 (11th Cir. 2017) (Martin, J., dissenting from denial of rehearing en banc) (" Lake II "). Today, I join this chorus of voices raising concerns about our sovereign-immunity doctrine with respect to Georgia sheriffs.

In this concurrence, I seek to reiterate some of my colleagues' fundamental concerns with our reasoning in Manders and Purcell . I also explain why our decision in Purcell conflicts with Manders and should be abrogated regardless of whether we reconsider the ultimate holding in Manders .

I.

To determine whether an official or entity is an "arm of the State," we look to four factors: "(1) how state law defines the entity; (2) what degree of control the State maintains over the entity; (3) where the entity derives its funds; and (4) who is responsible for judgments against the entity." Manders , 338 F.3d at 1309. In Manders , we found that, on balance, the factors weighed in favor of granting immunity to sheriffs when they set their "use-of-force policy at the [county] jail[.]" Id . at 1328. But a clear reading of Georgia law demonstrates that all four factors weigh against a finding of immunity.¹

A.

First, I consider how state law defines the entity. The Georgia Constitution could not be any more explicit: sheriffs are "county officers" who are elected by the voters of their respective counties. Ga. Const. art. IX, § 1, ¶ 3. Under the Georgia Constitution, sheriffs are considered part of "Counties and Municipal Corporations," id . art. IX, not the state's executive branch, id . art. V (addressing the "Executive Branch"). And as for the particular function at issue in this case—the cross-gender supervision of detainees at county jails—Georgia statutory law explicitly defines sheriffs as "jailers of the counties." O.C.G.A. § 42-4-1(a).

Georgia courts also have consistently held that "a lawsuit against a sheriff in his official capacity is considered a suit against the county[.]" Davis v. Morrison , 344 Ga.App. 527, 810 S.E.2d 649, 651 (2018) (citation and internal quotation marks omitted); see also Gilbert v. Richardson , 264 Ga. 744, 452 S.E.2d 476, 478 n.4 (1994). And since our decision in Manders , Georgia courts have reiterated that "[s]heriffs clearly perform governmental services on a local level [.]" See Channell v. Houston , 287 Ga. 682, 699 S.E.2d 308, 310 (2010) (emphasis added).

Normally, under our precedent, when a state's constitution and case law define an official as a county officer, that "weighs against arm of the state status." Abusaid v. Hillsborough Cnty. Bd. of Cnty. Comm'rs , 405 F.3d 1298, 1305-6 (11th Cir. 2005) ; cf . McMillian v. Monroe Cnty. , 520 U.S. 781, 787, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997) (relying on the "the constitutional provisions concerning sheriffs, the historical development of those provisions, and the interpretation given them by the Alabama Supreme Court" to determine whether Alabama sheriffs represent the State for purposes of liability under 42 U.S.C. § 1983 ).

But in Manders , we did not follow that practice. Instead, we dismissed the language in Georgia's constitution as mere "nomenclature" that "reflect[ed] a geographic label defining the territory in which a sheriff is elected and mainly operates." Manders , 338 F.3d at 1312. Declining to take the Georgia Constitution at its word, we found that sheriffs are "arms of the state" because they "perform specific statutory duties, directly assigned by the State, ... in corrections." Id . at 1319. We concluded that counties lack control over the sheriff's office under the Georgia Constitution to the point that the sheriff's office is "a separate and independent office" from the county and its governing body. Id .

Our reading of Georgia law and this Court's sovereign-immunity case law was flawed. As an initial matter, Manders conflates the first two factors by using state control (and the lack of county control) over sheriffs to define sheriffs and the function at issue. But the "two factors should not be collapsed." Lake I , 840 F.3d at 1347-48 (Parker, J., dissenting).

Second, Manders focuses far too much on the county's lack of control over sheriffs. Manders , 338 F.3d at 1310 ; id . (noting that Georgia Constitution gives counties no "legislative power or authority over sheriffs and expressly prevents counties from controlling or affecting the sheriff's office or the personnel thereof."); id . (stressing that sheriffs are "not county employees") (citing Bd. of Comm'rs of Randolph Cnty. v....