Rowe v. Schreiber

• Decision Date: 29 April 1998
• Docket Number: No. 97-4920,97-4920
• Citation: 139 F.3d 1381
• Parties: 11 Fla. L. Weekly Fed. C 1261 Robert R. ROWE, Plaintiff-Appellant, v. Alan H. SCHREIBER, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1381

139 F.3d 1381

11 Fla. L. Weekly Fed. C 1261

Robert R. ROWE, Plaintiff-Appellant, v. Alan H. SCHREIBER, Defendant-Appellee.

No. 97-4920.

United States Court of Appeals Eleventh Circuit.

April 29, 1998.

Diane H. Tutt, Plantation, FL, for Plaintiff-Appellant.

Lillian W. Conrad, Heller & Conrad, Hollywood, FL, Neil Rose, North Bay Village, FL, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before EDMONDSON and BIRCH, Circuit Judges, and FAY, Senior Circuit Judge.

EDMONDSON, Circuit Judge:

Plaintiff Robert Rowe appeals the district court's grant of summary judgment for Defendant Alan Schreiber in a section 1983 case based mainly on the Sixth Amendment and brought against Schreiber in his individual capacity. ¹ The district court granted summary judgment after concluding that Defendant, as public defender, was entitled to absolute immunity. Because we conclude that Defendant was undoubtedly entitled to qualified immunity (which Defendant also asserted in the district court), we need not decide whether absolute immunity was appropriate. We affirm. ²

Background

Plaintiff was indicted in Broward County, Florida, on four counts of sexual battery. An assistant public defender ("the APD"), who is no party to this case, represented Plaintiff during the criminal trial. Plaintiff was convicted and sentenced to life imprisonment. A motion to vacate the conviction was filed by Plaintiff. A Florida court granted the motion based on the conclusion that Plaintiff received ineffective assistance of counsel. A new trial was ordered, but the State of Florida nolle prosequi the charges.

Plaintiff then filed a section 1983 claim against the Public Defender for Broward County, Alan Schreiber, in his individual capacity. ³ Never does the complaint allege that Schreiber acted as Plaintiff's defense counsel. Instead, the complaint alleges that Defendant--as an administrator--created systemic deficiencies in the public defender system generally by denying investigative resources and expert witness resources to assistant public defenders, by placing pressure on the defenders to "hurry their clients' cases to trial," and by permitting assistant public defenders to assume overwhelming caseloads. No allegation has been made that Defendant made decisions specifically about the criminal defense of Plaintiff; nor has an allegation been made that specific services were requested of Defendant by Plaintiff.

Plaintiff points only to errors made by the APD who represented him. Plaintiff claims, among other things, that the APD did not properly obtain Brady information from the State; that the APD repeatedly told Plaintiff that the APD did not have enough time to prepare Plaintiff's defense; that the APD failed to investigate adequately Plaintiff's defense; and that the APD told Plaintiff that the Public Defender's Office was cutting money allocated for case investigation. These deficiencies, Plaintiff claims, were caused by the general administrative decisions of Defendant (for example, resource management decisions, case load management decisions, and hiring and firing decisions). Again, Plaintiff does not claim that Schreiber was, in any way, Plaintiff's defense lawyer.

Defendant filed a motion for summary judgment based on three alternative defenses: (1) as public defender, Defendant was not acting under color of state law as required for a claim under section 1983; (2) as public defender, Defendant was entitled to absolute immunity from section 1983 liability; or (3) Defendant was entitled to qualified immunity. The district court granted Defendant's motion for summary judgment, concluding that Defendant--as public defender--was entitled to absolute immunity.

Discussion

We review a district court's grant of summary judgment de novo, with all facts viewed in the light most favorable to the nonmoving party. See Hale v. Tallapoosa County, 50 F.3d 1579, 1581 (11th Cir.1995). Because we conclude that Defendant is entitled to qualified immunity, we have assumed, arguendo, that Defendant--when acting as a public administrator--was acting under color of state law and was not entitled to absolute immunity.

"Qualified immunity protects government officials performing discretionary functions from civil trials (and other burdens of litigation, including discovery) and from liability if their conduct violates no 'clearly established statutory or constitutional rights of which a reasonable person would have known.' " Lassiter v. Alabama A & M Univ., Bd. of Trustees, 28 F.3d 1146, 1149 (11th Cir.1994) (en banc) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 816, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). Thus, Plaintiff must point to a preexisting, clearly established right that was violated by Defendant. See Lassiter, 28 F.3d at 1149; see also Mitchell v. Forsyth, 472 U.S. 511, 527, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985).

Plaintiff argues that the well-established Sixth Amendment right to effective assistance of counsel is the clearly established right violated by Defendant. But, "courts must not permit plaintiffs to discharge their burden by referring to general rules and to the violation of abstract 'rights.' " Lassiter, 28 F.3d at 1150 (citing Anderson v. Creighton, 483 U.S. 635, 637-38, 107 S.Ct. 3034, 3038-39, 97 L.Ed.2d 523 (1987)) (footnote omitted). The right to effective assistance of counsel, although a generally established right of criminal defendants, is not sufficiently specific to overcome Defendant's right to qualified immunity from this suit.

"For the law to be clearly established to the point that qualified immunity does not apply, the law must have earlier been developed in such a concrete and factually defined context to make it obvious to all reasonable government actors, in the defendant's place, that 'what he is doing' violates federal law." Lassiter, 28 F.3d at 1149 (quoting Anderson, 483 U.S. at 639, 107 S.Ct. at 3039). "Public officials are not obligated to be creative or imaginative in drawing analogies from previously decided cases." Lassiter, 28 F.3d at 1150 (quoting Adams v. St. Lucie County Sheriff's Dep't, 962 F.2d 1563, 1573, 1575 (11th Cir.1992) (Edmondson, J., dissenting), approved en banc, 998 F.2d 923 (11th Cir.1993)). "If case law, in factual terms, has not staked out a bright line, qualified immunity almost always protects the defendant." Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th Cir.1993).

In this case, for qualified immunity not to apply, the right which must be clearly established is some right to have the resources of the public defender's office administratively allocated in a specific manner or the right to have certain administrative decisions made. ⁴ Plaintiff puts forward no existing law to show the clearly established nature of this "right." That general administrative decisions of the kind at issue in this case violated Plaintiff's Sixth Amendment right to effective assistance of counsel, when the decisions were made by someone not acting as Plaintiff's lawyer, was not (and is not) clearly established. ⁵

Plaintiff has, in fact, presented nothing to show that every reasonable public defender in Defendant's position would have known that the conduct--making decisions about how to allocate limited resources within his office and how otherwise to manage the public defender's office--violated Plaintiff's constitutional rights. The "right" allegedly violated is the Sixth Amendment right to effective assistance of counsel; but no precedents have been cited that involve the administrative duties of a public defender, as opposed to the traditional legal functions performed by the criminal defendant's specific attorney: that is, lawyer-as-lawyer decisions. ⁶ The cases cited by Plaintiff are not materially similar to the case before us and do not clearly establish a right to certain funding for (or certain administrative decisions affecting) investigation, expert witnesses, and the like. See Lassiter, 28 F.3d at 1150-51; Edwards v. Gilbert, 867 F.2d 1271, 1277 (11th Cir.1989).

Qualified immunity is the rule, not the exception. Plaintiff has failed to convince us that this case represents the exceptional case where qualified immunity should not apply. See, e.g., Harlow, 457 U.S. at 816, 102 S.Ct. at 2738; Lassiter, 28 F.3d at 1149; Barts v. Joyner, 865 F.2d 1187, 1190 (11th Cir.1989).

AFFIRMED.

1 Plaintiff states in his brief that Schreiber denied indigent criminal defendants rights protected by "the Sixth, Eighth and Fourteenth Amendments." But Plaintiff's discussion focuses on the Sixth Amendment right to effective assistance of counsel. No further mention is made of the Eighth Amendment; and only Plaintiff's Brady rights are discussed in relation to "due process." Because of the absence of argument, the issues of Eighth Amendment and Fourteenth Amendment violations (other than Brady ) have been abandoned and will not be considered in this appeal. See Marek v. Singletary, 62 F.3d 1295, 1298 n. 2 (11th Cir.1995) ("Issues not clearly raised in the briefs are considered abandoned.") (citation omitted); Continental Technical Servs., Inc. v. Rockwell Int'l Corp., 927 F.2d 1198, 1199 (11th Cir.1991) ("An argument not made is waived...."); Harris v. Plastics Mfg. Co., 617 F.2d 438, 440 (5th Cir.1980) (Although posed as a...