Southern Holdings v. Allen, No. 05-1824 (4th Cir. 2006)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-1824 SOUTHERN HOLDINGS, INCORPORATED; JAMES SPENCER; RODNEY KEITH LAIL; IRENE SANTACROCE; RICKY STEPHENS; MARGUERITE STEPHENS; DORIS HOLT; NICHOLAS C. WILLIAMSON, Plaintiffs - Appellees, versus JAMES ALBERT ALLEN, JR., individually and in his official capacity as an officer with the Horry County Sheriff s Department; SIDNEY RICK THOMPSON, individually and in his official capacity as an officer with the Horry County Sheriff s Department; JEFFREY S. CALDWELL, individually and in his official capacity as an officer with the Horry County Sheriff s Department; CHARLES MCCLENDON, individually and in his official capacity as an officer with the Horry County Police Department; JAY BRANTLY, individually and in his official capacity as an officer with the Horry County Police Department; ANDY CHRISTENSEN, individually and in his official capacity as an officer with the Horry County Police Department, Defendants - Appellants, and HORRY COUNTY, South Carolina; HORRY COUNTY SHERIFF S DEPARTMENT; HORRY COUNTY POLICE DEPARTMENT; MICHAEL STEVEN HARTNESS; HAROLD STEVEN HARTNESS; ANCIL B. GARVIN, III; DAVID SMITH; JOHN DOES, Defendants. -----------------ERNEST H. MORTON, JR.; LINDA WILLIAMSON LAWRENCE; NORTH CAROLINA DEPARTMENT OF REVENUE, Movants. Appeal from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (CA-02-1859-4-RBH) Submitted: May 5, 2006 Decided: May 24, 2006 Before MICHAEL, KING, and SHEDD, Circuit Judges. Dismissed by unpublished per curiam opinion. Andrew F. Lindemann, DAVIDSON, MORRISON & LINDEMANN, P.A., Columbia, South Carolina; Robert E. Lee, James M. Saleeby, Jr., AIKEN, BRIDGES, NUNN, ELLIOTT & TYLER, P.A., Florence, South Carolina, for Appellants. Mark W. Hardee; James D. Cooper, Jr., COOPER, COFFAS, MOORE & GRAY, P.A., Columbia, South Carolina; John R. Rakowsky, West Columbia, South Carolina; Ronald N. Serota, Las Vegas, Nevada, for Appellees. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). - 2 - PER CURIAM: Horry County Sheriff s Officers James Albert Allen, Jr., Sidney Rick Thompson, Jeffrey S. Caldwell, and Horry County Police Officers Charles McClendon, Jay Brantley, and Andy Christensen appeal the district court s orders denying, in part, their motion for summary judgment in Appellees 42 U.S.C. ยง 1983 (2000) civil suit. On appeal, Appellants assert that they are entitled to qualified immunity. Appellees argue that this jurisdiction over this interlocutory appeal. court lacks We agree with the Appellees. Interlocutory orders ordinarily are not appealable. An exception to this general rule is recognized with respect to orders rejecting a defendant s claim of qualified immunity, but only if the denial of determination qualified that the immunity facts rests alleged, if on a purely legal to true, found demonstrate a violation of clearly established law. be Johnson v. Jones, 515 U.S. 304, 316-17 (1995); Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). However, to the extent that the appealing official seeks to argue the insufficiency of the evidence to raise a genuine issue of material fact--for example, that the evidence presented was insufficient to support a conclusion that the official engaged in the particular conduct alleged--we do not possess jurisdiction . . . to consider the claim. Bass, 106 F.3d 525, 529-30 (4th Cir. 1997). - 3 - Winfield v. [W]hile the purely legal question of whether the constitutional right at issue was clearly established is always capable of decision at the summary judgment stage, a genuine question of material fact regarding [w]hether the conduct allegedly violative of the right actually occurred . . . must be reserved for trial. Willingham v. Crooke, 412 F.3d 553, 559 (4th Cir. 2005) (citing Pritchett v. Alford, 973 F.2d 307, 313 (4th Cir. 1992). Here, the district court determined that the constitutional right alleged to have been infringed was clearly established, but it determined that several genuine issues of material fact remained concerning whether the conduct alleged to violate that right had actually occurred. We therefore dismiss this interlocutory appeal for lack of jurisdiction. We deny Appellees motion for leave to file a sur-reply as moot. facts and materials legal before We dispense with oral argument because the contentions the court are adequately and argument presented would not in the aid the decisional process. DISMISSED - 4 -
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