PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 95-6123
WALTER MCMILLIAN,
Plaintiff-Appellee,
versus
W. E. JOHNSON, TOMMY HERRING, TOM ALLEN,
in their individual capacities, et al.,
Defendants,
THOMAS TATE, SIMON BENSON, LARRY IKNER,
in their individual capacities,
Defendants-Appellants,
ASSOCIATION OF COUNTY COMMISSIONERS OF ALABAMA
LIABILITY SELF INSURANCE FUND,
Intervenor-Defendant.
Appeals from the United States District Court
for the Middle District of Alabama
(December 3, 1996)
ON PETITION FOR PANEL REHEARING AND
SUGGESTION OF REHEARING EN BANC
Before COX and BARKETT, Circuit Judges, and PROPST*, Senior
District Judge.
PER CURIAM:
*
Honorable Robert B. Propst, Senior U. S. District Judge for the Northern District of
Alabama, sitting by designation.
The opinion reported at 88 F.3d 1554 (11th Cir. 1996), is
amended by substituting the following for section “F”, under part
IV of the opinion, pages 1571-73.
IV. Discussion
F. Tate's Sovereign Immunity From State Law Claims
The district court found that McMillian had presented
sufficient evidence to create a genuine issue of material fact on
three state law claims against Tate, Ikner, and Benson: malicious
prosecution (Count Twenty); abuse of process (Count Twenty-One);
and outrage (Count Twenty-Six). In addition, the court found that
a genuine issue exists as to a state law outrage claim against Tate
and the DOC defendants (Count Twenty-Five). The court rejected
Tate’s state law sovereign immunity and state law discretionary
immunity defenses, holding that neither form of state law immunity
shields officials sued for intentional or malicious wrongdoing in
their individual capacities.
On appeal,1 Tate contends that Alabama sheriffs are protected
by sovereign immunity under § 14 of the Alabama Constitution, even
when they are sued in their individual capacities for malicious or
intentional wrongdoing. According to Tate, a suit may be
maintained against a sheriff only if it falls within one of five
limited categories.2 It is undisputed that McMillian’s claims do
1
We have jurisdiction over this appeal from the district
court's denial of state law immunity because the state law immunity
asserted is an immunity against suit. See Griesel v. Hamlin, 963
F.2d 338, 340-41 (11th Cir. 1992).
2
Quoting Parker v. Amerson , 519 So.2d 442, 442-43
(Ala.1987), Tate argues that a sheriff is immune from suit under
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not fall within any of the five categories.
We find in decisions by Alabama's appellate courts no clear
answer to the question presented. Some Alabama decisions,
including the most recent ones, seem to support Tate's position.
Karrick v. Johnson, 659 So.2d 77 (Ala. 1995)(deputy sheriff immune
from suit for malicious prosecution and false imprisonment); Drain
v. Odom, 631 So.2d 971 (Ala. 1994)(sheriff is immune from suit in
his official capacity for negligent performance of his statutory
duties); Parker v. Amerson, 519 So.2d 442 (Ala. 1987)(sheriff is an
executive officer of State of Alabama and is immune from suit under
Article I, § 14, Alabama Constitution of 1901, in the execution of
duties of his office); Alexander v. Hatfield, 652 So.2d 1142 (Ala.
1994)(deputy sheriffs are immune from suit to the same extent as
sheriffs). Some Alabama decisions point in the other direction.
Phillips v. Thomas, 555 So.2d 81 (Ala. 1989)(Clearly, a state
officer or employee is not protected by § 14 when he acts
willfully, maliciously, illegally, fraudulently, in bad faith,
beyond his authority, or under a mistaken interpretation of law);
Unzicker v. State, 346 So.2d 931 (Ala. 1977)(State immune when
impleaded as defendant, but governor, commissioner of conservation,
and state highway director, in their respective capacities, were
Article I, § 14, Alabama Constitution of 1901, in the execution of
the duties of his office, except for actions brought (1) to compel
him to perform his duties, (2) to compel him to perform ministerial
acts, (3) to enjoin him from enforcing unconstitutional laws, (4)
to enjoin him from acting in bad faith, fraudulently, beyond his
authority, or under mistaken interpretation of the law, or (5) to
seek construction of a statute under the Declaratory Judgment Act
if he is a necessary party for the construction of the statute.
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not also immune where it was alleged that those officers acted
fraudulently, in bad faith, beyond their authority, or under a
mistaken interpretation of the law); Milton v. Espey, 356 So.2d
1201 (Ala. 1978)(Section 14 does not necessarily immunize State
officers or agents from individual civil liability); DeStafney v.
University of Alabama, 413 So.2d 391 (Ala. 1982)(defense of
sovereign immunity afforded university and its president did not
extend to employee whose alleged tortious act was the basis of the
claim); Lumpkin v. Cofield, 536 So.2d 62 (Ala. 1988)(defense of
sovereign immunity does not bar suits against state officers and
employees for torts committed willfully, maliciously, and outside
the scope of their authority); See also Gill v. Sewell, 356 So.2d
1196 (Ala. 1978).
But a recent decision by this court, Tinney v. Shores, 77 F.3d
378 (11th Cir. 1996), holds that under Alabama law a sheriff and
deputy sheriff are shielded by sovereign immunity against claims
based upon intentional torts. Some of the language in Tinney is
confusing; the court says that "[u]nder Alabama law, sheriffs and
deputy sheriffs, in their official capacities and individually, are
absolutely immune from suit when the action is, in effect, one
against the state." Id. at 383. The claim under consideration in
Tinney was against the sheriff and deputy sheriff in their
individual capacities. However, no consideration was given to
whether the action was, in effect, one against the state. Federal
law controls a determination relative to whether a state is the
real party-in-interest to the action, and under federal law the
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claim in Tinney was not one against the state. See Kentucky v.
Graham, 473 U.S. 159, 167-68, 105 S. Ct. 3099, 3106-07 (1985); and
Jackson v. Georgia Dep't of Transp., 16 F.3d 1573, 1577 (11th Cir.
1994). Notwithstanding this confusing language in Tinney, the
holding of the case is clear: under Alabama law, a claim against
an Alabama sheriff in his individual capacity is barred by the
doctrine of sovereign immunity. We are bound to followTinney, and
do so. We hold that the district court erred in rejecting Tate's
sovereign immunity defense to the state law claims.
The petition for panel rehearing is, except as granted hereby,
DENIED, and no member of this panel nor other judge in regular
active service on the court having requested that the court be
polled on rehearing en banc (Rule 35, Federal Rules of Appellate
Procedure; Eleventh Circuit Rule 35-5), the Suggestion of Rehearing
En Banc is DENIED.
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