McElroy v. City of Macon, 94-8360
| Decision Date | 07 November 1995 |
| Docket Number | No. 94-8360,94-8360 |
| Citation | 68 F.3d 437 |
| Parties | Rosamerry McELROY, Plaintiff-Appellee, v. CITY OF MACON, Unknown Policemen of the City of Macon, Defendants, Charles E. Reynolds, and other unknown police officers of the City of Macon, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Randall D. Russell, Faulkner & Russell, Macon, GA, for appellants.
Lonzy F. Edwards, Macon, GA, for appellee.
Appeal from the United States District Court for the Middle District of Georgia.
Before EDMONDSON and BIRCH, Circuit Judges, and HENDERSON, Senior Circuit Judge.
This appeal involves the reviewability of an order denying as untimely a motion for summary judgment based on qualified immunity. On March 3, 1994, the parties to this civil-rights case were notified that trial would begin on March 28, 1994. On March 17, Reynolds--a police officer--filed a motion for summary judgment based on qualified immunity. The motion was denied on the grounds that the motion was untimely under Local Rule 3.2 and that material issues of fact existed. Reynolds then filed this appeal.
Local Rule 3.2 in Georgia's Middle District provides in part that counsel wishing to submit a response, brief or affidavits in opposition to a civil motion "shall serve the same within twenty (20) days after service of movant's motion and brief." The judge said that McElroy had insufficient time to respond to this motion because the trial was to begin in eleven days. And, the judge noted that Reynolds, after indicating his intention to file a motion, had waited thirty days to file the motion and had filed the motion two weeks after agreeing to the March 28 trial date.
Reynolds had an adequate opportunity to file a timely motion for summary judgment based on qualified immunity. He failed to do so. The denial of Reynolds' motion for summary judgment as untimely was not error. *
AFFIRMED.
* In ruling that Reynolds' motion for summary judgment was untimely, we do not reach the merits of Reynolds' claim that he is entitled to qualified immunity. We have looked at Johnson v. Jones, --- U.S. ----, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), and conclude that defendants may immediately appeal the denial, based on untimeliness, of a summary judgment motion in a qualified immunity case. See Hill v. DeKalb Regional Youth Detention Ctr., 40 F.3d 1176 (11th Cir.1994); Valiente v. Rivera, 966 F.2d 21 (1st Cir.1992). We see Johnson's constraint on interlocutory appeals to be,...
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