*3 CARNES, Circuit Judge: Defendant Tillman Parnell brings this interlocutory appeal from the district court’s denial of his for summary motion plaintiffs’ 42 U.S.C. § 1983 and Title IX claims him in capacities. his individual and official Be- cause we conclude that Parnell enti- tled to immunity on the claims against him in his individual capacity, we reverse the district court’s denial of sum- mary judgment respect to those claims. We also conclude that we lack jurisdiction appeal over Parnell’s of summary judgment denial on the official capacity claims.
I. BACKGROUND A. FACTS 1996, plaintiff Joy In November Erica (Ms. Hartley Hartley) 16-year-old was a high at Washington school student High Washington County, School Ala- classes, required bama. addition to her Hartley was enrolled in a two-hour drafting county’s offered at the voca- class school, technical which tional was located separate campus high on a from Hartley’s drafting school. Ms. class was taught by Kenneth Godwin. Besides class, knowing Godwin from * Hoeveler, Florida, silling by designation. Honorable William M. Senior Judge District for the Southern District of Also, socially inappropriate knew him from church. she manner toward her in the 16-year-old was friends with Godwin’s son past, enjoyed he good reputation in the had Kenny frequent guest been community, and he had never been ac- visiting Kenny. house when cused of improper sexual or otherwise behavior with his students. Because of On November Godwin took Ms. shock, report her did not God- other eight students from his anyone win’s acts to but a few until friends drafting Birmingham class to to attend a her father confronted her after receiving two-day meeting of the Vocational Indus- an America, anonymous phone call. then trial an She told organization Clubs of joined. parents members of her all that several his class had Godwin had done to stayed overnight Godwin and students her. *4 Birmingham at a hotel. the morning On 11, 1996, On November Mr. Hartley con- 2, 1996, Hartley November Ms. and tacted the local attorney’s district office another student went to room Godwin’s to about his daughter’s allegations, and that day’s ask him the for schedule. After immediately office commenced an investi- talking briefly, Godwin directed the other 13, 1996, gation. On at the November student to return to her room. When Ms. suggestion attorney’s of the district inves- leave, Hartley attempted to Godwin tigator, Hartley Ms. voluntarily wore a her, grabbed pulled lap, her onto his and microphone hidden when she attended hugged her. He then laid her down on the Godwin’s class. It is unclear from the bed, shirt, ran his hands under her record whether anything Godwin said in-
rubbed her Eventually picked breasts. he criminating being while he was recorded her up, lips, kissed her on the hugged her on that occasion. again, “Kenny and said doesn’t what know 13, 1996, the evening On of November missing.” he’s After that again he rubbed Hartley reported Mr. daughter’s his alle- her finally walking breasts before her to gations Parnell, to defendant Tillman door, su- saying, the get ready.” “You need to perintendent of Washington Hartley Ms. left and returned to her room. School Board. He also told Parnell afternoon, Later that on the drive back attorney’s district office was conducting an Washington County, to stopped Godwin at investigation. This was the first time gas Hartley station. While Ms. Parnell was informed Hartley’s of Ms. al- getting money backpack, from her Godwin legations or the investigation. Although placed his hand again under her shirt and brother-in-law, Parnell was Godwin’s this, rubbed her breasts. As he did he parties agree that before that time he had said, Later, “I’m cold.” after Godwin had no reason to know of allegations or to students, returned all the other except Ms. suspect that Godwin might engage in such homes, Hartley, to their stopped he on the behavior. side of pulled the road and Hartley onto her, lap.
his happened Godwin told ‘What The next morning, Parnell met with Mr. in Birmingham stays Birmingham. in I Hartley, and Mrs. principal of the Vo- took our friendship too far. I think a lot School, cational and a school guidance you I hopes you still have counselor. Following that ar- meeting, my added, son.” Finally, he “I’m apol- not rangements separate were made to Ms. ogizing you my because are sweetheart.” Hartley from Godwin. Effective Novem- He then drove her home. 14, 1996, ber was removed
Godwin’s acts came as placed a shock to Ms. from Godwin’s class and in another Hartley. Godwin had never behaved an class the Vocational School.1 addi- 1. Mr. and Mrs. they explain assert their do not how Ms. could daughter was moved out of Godwin's class at have been removed from the class without their argue initiative and Parnell should not cooperation of Parnell and the Vocational However, receive credit for that removal. tion, principal reject says Following Parnell he left it to the board’s decision to guidance arrange recommendation, counselor to su- Hartley’s and the Parnell’s breaks order to en- pervision of school parents reported Godwin to the Alabama kept apart. two were sure the State Board of Education. Since it was possible that the state board would choose subsequently met license, Parnell, to revoke Godwin’s whose Hartley’s Al- allegations. discuss Ms. superintendent term expired July kissing Hart- though Godwin admitted 1997, did not make further recommen- an ley lips, he said it was accident county dation to the to kiss her on school board concern- only and that he had meant ing possible forehead. He also said he had touched action After Godwin. accidentally trying give while hearing August her breast the state board ex- hug. her a Parnell believed Godwin’s revoked Godwin’s teaching certificate planation. September Washington County 1997. The Board then School fired Godwin because meetings Aside from his with Mr. and longer he no had a certificate. Godwin, Hartley and Parnell did not Mrs. into Ms. investigation conduct other day From November explained Hartley’s allegations. Parnell class, Hartley was removed from Godwin’s *5 investiga- initiate his own that he did not 1997, September to his termination in God- tion because he believed the district attor- touched, abused, win never or otherwise “a cut ney’s investigation would be above” fact, Hartley. only harassed Ms. In the any investigative effort he could make and contacts had with at Godwin Ms. investigation that the official “relieved” school after she removed from his was him doing investigation. his own (1) class were: two occasions which 21, 1996, was ar- On November Godwin Hartley’s came into Ms. Godwin classroom abuse, charged rested and with child but session, her; during class but not to see At subsequently he was released on bond. (2) and a few occasions which Godwin Washington County next School Board the passed at school while she arrest, following meeting Godwin’s bus, getting walking was either off the on by told the board of her abuse sidewalk, coming the or from the break- that meet- Godwin. At the conclusion of spoke never to her on room. Godwin Parnell announced that the board ing, occasions, except of those once when he against would not take action Godwin said, simply evening.” “Good charges against until the criminal him 15, 1997, April were resolved. On B. PROCEDURAL HISTORY plea guilty entered a to misdemeanor 1997, Hartley, by October and proba- harassment and was sentenced friends, parents next filed a through her Thereafter, 1, a year. May tion for one at Parnell, complaint against six-count meeting, 1997 school board Parnell recom- Board, Washington County School mended to board Godwin be members, county school board and God- placed probation year for one and that purposes appeal, only win. For this placed in reprimand a letter of his file. relevant claims are the three which were Parnell, who had seen the documents rela- brought against Parnell in his individual sentence, plea and based tive to Godwin’s capacities. and official Those three claims given his recommendation on sentence (1) § a 42 are as follows: U.S.C. 1983 board against the court. The voted claim that Parnell violated Ms. alleging Parnell’s recommendation. Parnell did not Amendment sub- Hartley’s Fourteenth to act on lobby the board his recommenda- (2) process rights; stantive due why tion nor did he learn certain members § that Parnell against alleging it. U.S.C. 1983 claim voted principal. Regardless removed Godwin’s class immediate- School's of how it ac- was from about, allegations. ly tually the fact remains that she after Parnell learned came 2727, 2738, Amend- There Hartley’s violated Ms. Fourteenth (3) dispute acting no that Parnell was with- equal protection rights; ment discretionary authority public violated Ms. in his as a alleging claim that Parnell IX the Edu- official at all times relevant to this case. Hartley’s rights under Title (Title IX), Accordingly, the us is whether cation Amendments of 1972 issue before 235, (1972), 92-318, clearly Parnell’s conduct violated estab- Pub.L. 86 Stat. (codified statutory rights § or constitutional as amended at 20 U.S.C. 1681 lished person which a reasonable would have seq.). et known. subsequently moved for sum- Supreme The has stated that respect “[a] to each of the Court mary judgment motion, evaluating court a claim of immu- him. In that against three claims nity must first determine whether entitled to im- argued he he was plaintiff alleged deprivation has of an munity capacity on the individual claims. [statutory right actual constitutional or] By order dated October the dis- all, so, proceed to determine wheth- summarily mo- trict court denied Parnell’s clearly er that established at the interlocutory filed tion. Parnell then time of the violation.” Wilson appeal. —, Layne, 526 II. ANALYSIS (citation (1999) 143 L.Ed.2d omitted). Therefore, quotation we must appeal, On Parnell contends facts, first determine whether the read in him denying district court erred sum- light Hartley, most favorable Ms. mary judgment on the basis of deprived establish that Parnell’s actions him insofar as the claims any statutory her of or constitutional capacity in his individual are concerned. *6 If rights. “yes,” the answer is we must He erred in also contends the court rights then consider whether- those were him denying clearly at established the time of the capacity. claims him in his official events in case. this We address each issue in turn. earlier, Hartley As mentioned Ms. con- A. WHETHER THE DISTRICT deprived tends Parnell her of her Four- ERRED COURT IN DENYING pro- teenth Amendment substantive due QUALIFIED PARNELL IMMUNI- rights, cess her Fourteenth Amendment TY THE ON CLAIMS AGAINST equal protection rights, rights and her un- HIM IN HIS CAPAC- INDIVIDUAL der Title IX. We address whether Parnell ITY is entitled to on each of qualified immunity pro “Because those claims. trial, by not to right
vides be burdened simply liability, and not a defense to this 1. The Fourteenth Amendment jurisdiction Court has to review interlocu Substantive Due Process tory appeals denying from orders sum Claim mary judgment based on immuni Hartley Ms. contends that Parnell ty. We this of law question review de § depriving is hable under 1983 for her of Shores, Tinney novo.” v. 77 F.3d 380 her Fourteenth Amendment substantive (11th Cir.1996) (citations omitted). process right sexually due not to be performing by
Government officials acting discre- abused a state official under tionary functions are entitled to appears color of state law. Parnell Hartley “insofar as their conduct does concede that Ms. had a constitu clearly statutory not violate or right sexually established tional not to be abused rights constitutional of which a reasonable state official and that de Godwin’s actions person prived Hartley would have known.” Harlow v. that right. We assume Fitzgerald, present purposes. argues, so for Parnell however, circumstances of to believe that sexual that under the abuse of case, held hable under he cannot be permitted by this students was Parnell. Ac- because he did § 1983 for Godwin’s acts cordingly, Ms. assuming Hartley has a deprivation. agree, We not cause that process right due not to be substantive teacher, sexually by a abused Parnell did cir It is well established deprive right. not her of that Because supervisory officials are not liable cuit deprive any Parnell did not acts § 1983 for the unconstitutional under process right, substantive due the district “on the basis of re of their subordinates by failing grant court erred Parnell liability.” spondeat superior or vicarious qualified immunity on the substantive due City Foley, 30 F.3d Belcher process claim. Cir.1994) (citation (11th quotation omitted). liability “Supervisory [under supervisor
§
occurs either when the
1983]
2. The Fourteenth Amendment
personally participates
alleged
con
Equal Protection Claim
there is a
stitutional violation or when
Next,
Parnell
contends
causal connection between actions of
§
violating
is liable under
1983 for
her
supervising
official and the
consti
Fourteenth Amendment
to equal
deprivation. The causal connec
tutional
protection by failing to remedy Godwin’s
history
tion can be established when
argues
sexual abuse. She
that Parnell
responsible su
widespread
puts
abuse
protection
equal
rights by
violated her
de
pervisor on notice of the need to correct
either
ciding not to
seek Godwin’s termi
alleged deprivation,
and he fails to do
suspend
nation or
him from
teaching
deprivations
so. The
that constitute wide
her school after he was aware of her alle
spread
notify
super
abuse sufficient to
gations
disagree.
of sexual abuse. We
obvious,
vising
flagrant,
official must be
duration, rather
rampant and of continued
Hartley’s
learned of Ms.
After
than
Brown v.
isolated occurrences.”
abuse,
allegations of sexual
(11th
F.2d
Crawford, 906
Cir.
abuse,
did not suffer
further sexual
1990) (citations omitted).
addition,
harassment,
sexual
or harm of
sort
may
connection
established and
causal
attending
Washington
while
liability imposed
the su
supervisory
where
*7
any
public schools.
the absence of
evi-
improper
policy
or
...
pervisor’s
“custom
Hartley
Par-
injury
dence of
to Ms.
after
in deliberate indifference to con
result[s]
allegations,
nell learned of her
we hold
Freeman,
rights.”
stitutional
Rivas v.
940
Hartley
deprive
that Parnell did not
of
(11th Cir.1991)
1491,
(citing
F.2d
1495
Zat
right
equal
her Fourteenth Amendment
to
(11th
Wainwright,
v.
occasion
supervisor may
a
be held grounds.
disagree.
der which school
We
equal protection
liable under the
clause of
why
Let us
it
begin with
matters.
Fourteenth Amendment for harm suf-
It
interlocutory
matters because this is an
by
supervisor
fered
student after
appeal,
appeal
jurisdic
and courts of
have
prior
by
learned of
sexual
a school
abuse
interlocutorily
tion to review
denials
employee.
im
based
deprive
Because Parnell did not
Ms. munity,
summary judg
but not denials of
Hartley of her Fourteenth Amendment
that go only
ment
to the merits of a claim.
equal protection,
the district court
Jones,
304,
See Johnson
515 U.S.
115
in denying
erred
immuni-
2151,
(1995);
S.Ct.
Mitch
ty on this claim.
511, 530,
Forsyth,
ell v.
472 U.S.
105 S.Ct.
(1985).
2817-18,
1271
part
parcel
merits
and
of the
first decide the
that we must
ed us
in favor of
issue,
inquiry,
separate question.
if
decide that
not a
only
we
i.e.,
violation
that the
plaintiff,
the
conclude
much,
recognize
Our own decisions
al
right has been
of a bona fide federal
they
ap-
are inconsistent with the
evidenced,
reach the
should we
leged or
proach
concurring opinion
the
would have
clearly
was
whether
that
issue of
example,
us take.
in Burrell v. Board
For
of the violation.
at the time
established
Military College, 970
Trustees
Ga.
of
of
603, —,
Layne,
v.
See Wilson
(11th
785,
Cir.1992),
plain-
F.2d
792-93
the
1692, 1697,
ferences seem to be of tance. THE B. WHETHER DISTRICT ERRED IN COURT DENYING said, it, I With this see there are
PARNELL SUMMARY JUDG- angels pin more on dancing Judge Carnes’ MENT THE ON CLAIMS AGAINST Judge than I Hoeveler’s. therefore HIM IN HIS OFFICIAL CAPACITY opinion panel by concur for the former. interlocutory ap We do not have opinions Both lead to a and a reversal
pellate jurisdiction to review denial of judgment appellant’s But a favor. re- capacity an judgment on official A a judgment versal of what? reversal of See, standing e.g., claim alone. Swint v. denying summary district court Commission, Chambers appellant’s in favor of defense of 35, 50-51, 1203, 1211-12, 115 S.Ct. qualified immunity. L.Ed.2d 60 To the extent we have discretionary pendent appellate jurisdic Judge go step Hoeveler1 would fur- the denial summary judgment tion over ther, cobwebs, cut appellate across some capacity on the official claim it because and, vein, striking jugular instruct intertwined with the judge the trial to dismiss the case on the id., issue, see decline to exercise that merits. Thus would a judge district be see, jurisdiction, Hollowell, e.g., Pickens spared further consideration of a case al- (11th Cir.1995). 59 F.3d Of ready by found of no virtue the court of course, may appropriate it for the dis of, appeals. perhaps That makes a lot trict court to re-visit its decision on the facial, sense. capacity official claim in light opin of this Carnes, hand, Judge on the other would ion. appel- redirect our attention to our limited responsibilities. lant This is an interlocu-
III. CONCLUSION tory appeal. appeals We do not take piecemeal. We are authorized to review portion That of the district court’s Octo- judgment. eases 28 U.S.C. after final denying ber 1998 order Parnell’s motion course, § Except, 1291. there are a few § 1983 and (there exceptions always are exceptions!). IX him in against Title claims his individu- capacity ap- al is REVERSED. protect Parnell’s Some rules of law us against peal of the district court’s denial just liability. protect of sum- more than Some us mary judgment on the claims him against exposure of a trial. For exam- capacity defendant, in his official ple, protected is DISMISSED for a criminal from jurisdiction. subjection lack of The case is RE- jeopardy by to double the Con- stitution, MANDED for further proceedings consis- but ordered trial the dis- court, opinion. tent with this may appeal denying trict the order Judge 1. thoughtful. Hoeveler has been one of the heaviest ues to be one most America, judges laden district and contin-
1273 above, jeopardy wrong that no constitutional was plea double before his of asserted, trial in the court. See proceedings may further be the basis for a also dis- States, 651, 431 97 Abney v. U.S. United of the merits. missal the case on It would (1977). 2034, L.Ed.2d 651 S.Ct. 52 be, apprehend.3 it, I On the face of we in ought go say to so our judg- ahead defendant, Here, entitled protection a to ment, suggests. as Judge Hoeveler But fact trial virtue the exposure from of claim, judgment we must our such is be careful that here that immune from a he is plea depositions, the denial of his of a appeal precedent entitled to not set to include qualified -immunity before in discovery and all the rest future inter- —in Jones, deed, before trial. See Johnson locutory appeals of this kind. 2151, 304, 115 S.Ct. 132 L.Ed.2d Even before though the issue us would no right We have further both, two opinions be resolved alike in the pendente rulings the of interfere with lite divergent here are Their useful. views in a must the district court such case. We parties don’t the as much they interest immunity issue and that alone. address the expected intrigue can be those who Id. write law reviews. articles for Interlocu- If merit in this. we invited the There is tory appellate jurisdiction grist for these argue prior parties to brief and before us millers. interlocutory appeal rulings, the of one TIM-BERÜ! piecemeal appeal order become a of would scant, any, all A orders. defendant HOEVELER, District Judge, Senior immunity, appeal real claim to could its concurring: appellate denial in to have the court order opinion Judge I concur in Carnes. straighten rulings discovery, pre- out do, however, I question manner orders, deposition trial settings and which we case to the remand the District rest. That would not do. Court. When is assert Here, have the case we that obscures defense, as a a must first ed court deter up our It was bound to show function. mine whether the violation of constitu to rule nar- day!2 some In order asserted, right tional then determine issue, qualified immunity row it is neces- clearly whether right that established sary that we examine the constitutional (if not, immunity applies). then wrong to have been so that done question “Deciding be the constitutional whether or it was we can determine not addressing fore behold, Lo “clearly established.” clarity legal ... question promotes “clearly find is no that there established” (because conduct.” Wilson v. constitutional violation no consti- standards for official 1692, ever Layne, tutional violation kind was 119 S.Ct. asserted) (1999) reverse the so we district court (holding L.Ed.2d order that favor clearly at the violated was not established That, be entered. I be- offense). defendant Although time of Su lieve, jurisdiction appellate ends our preme did not address the Court Wilson appeal. interlocutory immunity, application it af firmed court’s conclusion that appellate We the case back to the dis- then send proper. Following qualified immunity was observing trict ba- judge without that the Supreme Court in parenthetically out the direction of the Wil- ruling, sis set of.our Georgia, 385 U.S. (1966). lawyer 2. A for the State of who fine supreme Jus- later became its tice, court's Chief Hill, Jr., N. the Honorable Harold once argued political issue case the state suggest judge 3. I the district will see that Supreme Court. He "Your before the said: so, why wondering perhaps this is we didn’t honors, anything that if can we have found just say so! Morris, happen, happen!” it will Fortson v. *11 if first to determine a constitu- son we look and, GRAHAM,
tional violation has been Plaintiff-Appellant, Tia basis, case, if evidentiary there is any for judgment, on a motion for charge. such a find that is not. We there FARM STATE MUTUAL INSURANCE COMPANY, corporation; an Illinois Qualified immunity invoked protect to Estes, Defendants-Appellees. and Jean thus, unwary and, essentially inno- — who, fact, public servant com- has cent— 98-6871. No. Immunity violation. mitted the is unnec- Appeals, United States Court of essary if he has not. Thus the District Eleventh Circuit. denying quali- Court did not err in immunity. fied not The Court erred in 28, 1999. Oct. for Parnell granting of any because of absence issue on the
question aof constitutional violation. This have what we determined. pro-
To suggest qualified immunity Parnell,
tects where have determined wrong, appears
that he committed to be no
a non sequitur. Judge When District will, course, this case
addresses he
faced of entering judg- with dilemma
ment Parnell on for the basis of where, it clearly, apply. does not
I problem simply find no with remanding entry
for with consistent findings.
our To do otherwise seems complicate already complex
further an I
body impediment of law. find no in our
simply remanding with directions consis- view; jurisdiction
tent with our our appeal
entertain this out of grows the deni-
al óf defense should
not fully dispose affect our appeal issues us before —consistent Indeed,
with applicable law. we do so as
to the IX Title claim.
Finally, due to interlocutory na- appeal
ture of this we must be limited Court,
our directions to the District our simply require
directions should action
conformity our conclusions rather
than an entering which in- appears order
appropriate after findings of this court. III, Duffee,
Cecil G. Barnett Hanes Garfield, LLC, Birming- O’Neal Duffee & AL, ham, Plaintiff-Appellant.