UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WANDA S. GAMACHE,

Plaintiff-Appellee,

v.

MICHAEL J. CAVANAUGH, in his

individual and official capacity;

No. 95-1829

MARILYN JOHNSON, in her individual

and official capacity; ROBERT B.

PERRY, in his individual and official

capacity,

Defendants-Appellants.

Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Matthew J. Perry, Senior District Judge.

(CA-94-2308-3)

Argued: January 31, 1996

Decided: April 12, 1996

Before WIDENER, LUTTIG, and MOTZ, Circuit Judges.

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Reversed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Carl Norman Lundberg, Chief Legal Counsel, SOUTH

CAROLINA DEPARTMENT OF PROBATION, PAROLE & PARDON SERVICES, Columbia, South Carolina, for Appellants. John
Allen O'Leary, O'LEARY ASSOCIATES, P.A., Columbia, South

Carolina, for Appellee. ON BRIEF: Laura P. Valtorta, CROMER &

MABRY, Columbia, South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Appellants, Michael J. Cavanaugh, Marilyn Johnson, and Robert B.

Perry, appeal the district court's decision denying them Eleventh

Amendment immunity and qualified immunity on appellee's claim

that her termination violated the First Amendment. Because appellants were entitled to Eleventh Amendment immunity on the claims

naming them in their official capacities and to qualified immunity for

the claims against them in their personal capacities, we reverse the

judgment of the district court and remand with instructions to enter

summary judgment in favor of appellants.

I.

Appellee, Wanda S. Gamache, was a probation and parole agent

employed by the South Carolina Department of Probation, Parole and

Pardon Services. On February 22, 1993, Gamache was riding in an

unmarked state vehicle on official business when, while stopped at a

traffic light, she was approached by a man who had been riding in

another vehicle also stopped at the light. The man, for unknown reasons, pointed a pistol at Gamache. In response, Gamache displayed

her badge, causing the assailant to flee. Gamache pursued the vehicle,

and in the ensuing high speed chase she drove 70-75 miles per hour

in a 35 mile per hour zone without a siren or flashing lights. When

the other car finally stopped, Gamache drew her gun and ordered the

three occupants to lie face down on the ground until local law

enforcement arrived.

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Following this incident, Gamache, on her own authority and without approval of her supervisors, authorized the issuance of warrants

against two of the men with herself and the South Carolina Department of Probation, Parole and Pardon Services as the prosecuting

authorities. Upon learning of these events, Gamache's supervisor,

Robert Perry, insisted that she dismiss the charges. Gamache refused

and soon thereafter was fired. Her letter of termination listed several

reasons for her discharge, including the unauthorized use of state

equipment, failure to comply with state regulations, willful violation

of laws, and gross misconduct. The letter specified that Gamache had

driven over twice the posted speed limit in a State vehicle, flashed her

badge, used her weapon and purported to act as a police officer

despite the fact that her authority extended only to parolees in her custody, and demonstrated a "lack of remorse" by refusing to withdraw

the warrant as requested by her supervisor. J.A. at 25.

After filing an unsuccessful administrative grievance, Gamache

filed the instant federal action against her supervisors, Cavanaugh,

Johnson, and Perry, alleging under 42 U.S.C. § 1983 a violation of

her First Amendment right to petition for redress and seeking both

actual and punitive damages. Appellants moved for summary judgment on the basis of Eleventh Amendment immunity and qualified

immunity. The district court denied the motion for summary judgment. This appeal followed.

II.

It is unclear whether or not the district court recognized that the

Eleventh Amendment provides state officials immunity from suit for

damages in federal court filed against them in their official capacity,

because the district court's opinion makes no reference to the claims

against the appellants in their official capacity. Under the Eleventh

Amendment, however, neither a State nor its officials in their official

capacity may be sued for damages in federal court without their consent. Moreover, as the Supreme Court held in Will v. Michigan Dept.

of State Police, 491 U.S. 58 (1989), neither a state nor its officials in

their official capacities are "persons" under section 1983. Thus, the

appellants were entitled to summary judgment on all of Gamache's

claims naming them in their official capacity.

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III.

With respect to the claims against appellants in their individual

capacities, the district court rejected appellants' defense of qualified

immunity, determining that appellants had "fail[ed] to submit sufficient evidence to avail themselves of this affirmative defense." J.A.

at 95. However, the issue of whether appellants' actions violated

clearly established law is a question of law, and appellants do not

have to produce "evidence" in support of qualified immunity. Since

appellants violated no clearly established rights by discharging Gamache for her failure to dismiss the warrant, the district court erred in

not granting summary judgment to the appellants on the basis of qualified immunity.

Gamache points to a number of cases to support her claim that the

appellants violated her clearly established rights. However, the cases

cited by Gamache are general cases merely establishing a right of

access to the courts and that public employees cannot be fired for

exercising constitutional rights. These cases, of course, discuss the

constitutional right alleged to have been violated at too high a level

of generality. See Anderson v. Creighton , 483 U.S. 635, 639-40

(1987). As the Supreme Court has made clear, "[t]he contours of the

right [alleged to have been violated] must be sufficiently clear that a

reasonable official would understand that what he is doing violates

that right." Id. at 640; see also DiMeglio v. Haines, 45 F.3d 790, 803-

04 (4th Cir. 1995).

Appellants direct the court to two cases which hold that a sheriff's

deputy has no right to file a warrant in the face of policy or orders

to the contrary. These cases indicate that appellants' actions did not

violate clearly established law. The first, Funn v. Winston, 612 F.2d

880, 881 (4th Cir. 1980), concerned a deputy sheriff who filed a criminal assault warrant against a prisoner who had assaulted him. As in

the instant case, the sheriff ordered the deputy to dismiss the warrant,

the deputy refused, and the sheriff then fired him. The court held that

the termination did not violate the deputy's constitutional rights

because the sheriff had a rational policy of not allowing deputies to

prosecute prisoners without his approval. The second, Berry v. Bailey,

726 F.2d 670 (11th Cir. 1984), cert. denied, 471 U.S. 1101 (1985),

held that a deputy's refusal to dismiss charges against certain

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arrestees when requested to by the sheriff (allegedly for the improper

purpose of helping the sheriff's reelection chances) was not constitutionally protected speech under the First Amendment and thus the

deputy's resultant termination was permissible.

Gamache attempts to distinguish Funn and Berry by arguing that

those are "sheriff" cases, whereas she works for the parole department. This argument is unavailing because even were we to conclude

that those cases are distinguishable, appellants would still be entitled

to qualified immunity since Gamache's discharge for refusing her

supervisor's request to dismiss the warrants did not violate clearly

established law.*

Since their actions did not violate any clearly established constitutional right, appellants were entitled to summary judgment on the

basis of qualified immunity.

CONCLUSION

For the reasons stated herein, we reverse the judgment of the district court and remand with instructions to enter summary judgment

in favor of the appellants.

REVERSED

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*Moreover, as the termination letter makes clear, Gamache committed

a number of acts which independently justify the termination of her

employment. See J.A. at 24-26, 75.

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