FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUGUST 10, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-10474

Non-Argument Calendar

________________________

D. C. Docket No. 06-00858-CV-BE-S

ANDRE LAWSON, 

Plaintiff-Appellee, 

versus 

SHERIFF CHRIS CURRY, 

in his personal and official capacity, 

CAPTAIN MIKUL SMITHERMAN, 

in his personal and official capacity, 

Defendants-Appellants. 

________________________

Appeal from the United States District Court

for the Northern District of Alabama

_________________________

(August 10, 2007)

Before BARKETT, WILSON and PRYOR, Circuit Judges.
 Curry and Smitherman also appealed the district court’s denial of their motion to dismiss 1

Count VI of Lawson’s amended complaint. While we have jurisdiction to consider the qualified

immunity issues presented as to Count I, we previously declined to exercise discretionary pendant

jurisdiction over the issues presented as to Count VI, and, accordingly, dismissed that part of the

appeal. Curry and Smitherman’s request that we reconsider this earlier dismissal is DENIED.

 This case is captioned with “Andre Lawson” as the plaintiff because plaintiff’s counsel

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misspelled Andrea Lawson’s name in the caption of her initial complaint.

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PER CURIAM:

Sheriff Chris Curry and Captain Mikul Smitherman appeal the district

court’s denial of their Fed.R.Civ.P. 12(b)(6) motion to dismiss, on the basis of

qualified immunity, Count I of Andrea Lawson’s amended complaint. This count 1 2

was brought against them in their individual capacities pursuant to 42 U.S.C.

§ 1983, and related to alleged actions taken against Lawson by Curry and

Smitherman in their supervisory roles at the Shelby County jail, where Lawson

was employed.

In her initial six-count complaint, Lawson, a black female, made a variety of

factual and legal allegations centering around the contention that she had been

harassed, disciplined, and ultimately terminated because she dated white men and

became pregnant by a white man. Curry and Smitherman, who are both white

males, initially responded to the complaint with a motion for a more definite

statement, which the district court granted. In her amended complaint, Lawson

added material in response to the primary deficiencies noted by the district court,
Curry and Smitherman also appealed the district court’s denial of their motion to dismiss 3

Count VI of Lawson’s amended complaint. While we have jurisdiction to consider the qualified

immunity issues presented as to Count I, we declined to exercise discretionary pendant jurisdiction

over the issues presented as to Count VI, and dismissed the appeal of the denial of the motion to

dismiss that count. Curry and Smitherman’s request that we reconsider this earlier dismissal is

DENIED.

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detailing in her factual allegations which defendant had taken which of the actions

complained of and removing language from the final five counts of the complaint

that incorporated every prior count into each subsequent one.

Curry and Smitherman moved to dismiss all six of Lawson’s counts, and the

district court granted the motion as to three counts and denied it as to three. Before

us now is the district court’s denial of Curry and Smitherman’s motion to dismiss

Count I, against which they asserted qualified immunity. The district court found 3

that Lawson had sufficiently alleged three claims of the violation of clearly

established federal rights: (1) the right to be free from racial discrimination;

(2) freedom of association under the First Amendment; and (3) the right to be free

of sex discrimination.

On appeal, Curry and Smitherman argue that they were entitled to dismissal

of Count I of Lawson’s amended complaint because it failed to comply with our

heightened pleading requirements for 42 U.S.C. § 1983 actions brought against

defendants who can claim qualified immunity. “The determination of whether a

complaint sufficiently states a claim is a matter of law that we review de novo. In
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so doing, we use the same standard as the district court, accepting all allegations as

true and construing facts in a light most favorable to the plaintiff.” GJR Invs. v.

County of Escambia, 132 F.3d 1359, 1367 (11th Cir. 1998).

Fed.R.Civ.P. 8(a) requires only that a claim for relief set out “a short and

plain statement of the grounds upon which the court’s jurisdiction depends,” “a

short and plain statement showing that the pleader is entitled to relief,” and “a

demand for judgment for the relief the pleader seeks.” Fed.R.Civ.P. 8(a). 

However, we apply a heightened pleading standard to § 1983 actions brought

against individuals to whom qualified immunity is available as a defense. Swann

v. S. Health Partners, Inc., 388 F.3d 834, 838 (11th Cir. 2004). “[W]hile

Fed.R.Civ.P. 8 allows a plaintiff considerable leeway in framing its complaint, this

circuit, along with others, has tightened the application of Rule 8 with respect to

§ 1983 cases in an effort to weed out nonmeritorious claims, requiring that a

§ 1983 plaintiff allege with some specificity the facts which make out its claim.” 

GJR Invs., 132 F.3d at 1367. “Some factual detail in the pleadings is necessary to

the adjudication of § 1983 claims.” Id.

“Under the qualified immunity doctrine, government officials performing

discretionary functions are immune not just from liability, but from suit, unless the

conduct which is the basis for suit violates ‘clearly established [federal] statutory
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or constitutional rights of which a reasonable person would have known.’” Id. at

1366 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73

L.Ed.2d 396 (1982)) (alteration in original).

“At this stage in the proceedings, the qualified immunity inquiry and the

Rule 12(b)(6) standard become intertwined. The Supreme Court has held that a

‘necessary concomitant’ to the question of whether a plaintiff has alleged a

violation of a clearly established federal right is ‘the determination of whether the

plaintiff has asserted a violation of a constitutional right at all.’ If a plaintiff has

not sufficiently alleged a violation of any constitutional right, it is axiomatic that

the plaintiff likewise has failed to allege the violation of a ‘clearly established’

right.” GJR Invs., 132 F.3d at 1366-67 (citations omitted).

“It is beyond doubt” that there is a federal equal protection right to be free

from racial discrimination, that this right is clearly established, and that it extends

into the employment context. Brown v. City of Fort Lauderdale, 923 F.2d 1474,

1478 (11th Cir. 1991). “[A] plaintiff must show a purpose or intent to discriminate

in proving an equal protection violation based on racial discrimination.” Id. at

1479 n.8. Discrimination based on interracial relationships constitutes

discrimination based on race. Loving v. Virginia, 388 U.S. 1, 10-11, 87 S.Ct.

1817, 1823, 18 L.Ed.2d 1010 (1967). The First Amendment protects a person’s
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right to “intimate association,” which encompasses, among other things, personal

relationships relating to the creation of families. Cummings v. DeKalb County, 24

F.3d 1349, 1354 (11th Cir. 1994). Additionally, since at least 1979, it has been

established that there is a federal equal protection right to be free from intentional

sex discrimination in public employment. Snider v. Jefferson State Cmty. College,

344 F.3d 1325, 1331 (11th Cir. 2003). A plaintiff claiming an equal protection

violation based on sex discrimination must show that the discrimination was

purposeful. Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 272-74, 99 S.Ct. 2282,

2292-93, 60 L.Ed.2d 870 (1979). 

After careful consideration, we find that the district court did not err in

finding that Lawson had adequately pled her claims of racial discrimination and

freedom of association, and that her complaint had complied with the heightened

pleading requirements with regard to those claims. Lawson’s claims of claims of

racial discrimination and freedom of association, we find that her complaint meets

the pleading requirements because (1) it advances readily intelligible legal

arguments that Curry and Smitherman violated Lawson’s rights to freedom of

association and to be free from racial discrimination; and (2) pleads specific facts

to support these claims, including facts about each defendant’s particular conduct. 

See GJR Invs., 132 F.3d at 1366-67. Lawson’s complaint alleges that she was
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harassed, disciplined, and ultimately terminated for being involved in interracial

relationships and for being pregnant with an interracial child. Her allegations of

fact in support of these claims include a specific instance of harassment by

Smitherman, other instances of harassment by other jail employees who were the

defendants’ subordinates, a specific instance of Lawson being put through

disciplinary procedures for an action it was not even alleged that she was involved

with, a specific instance of Lawson being singled out for discipline because of her

race, specific complaints to Curry and Smitherman about the actions, and specific

facts about her firing, such as Curry’s interference in the process, the official

reason she was terminated, and why that reason was allegedly pretextual. 

Accordingly, with regards to her claims relating to racial discrimination and

freedom of association, Lawson has met the heightened pleading requirements for

a § 1983 action and the district court’s denial of the motion to dismiss based on

qualified immunity is due to be affirmed.

However, the district court did err in its determination that Lawson had

sufficiently alleged a claim of sex discrimination in Count I. Nowhere in the

factual allegations or in Count I of the amended complaint did Lawson make a

legal allegation that she was discriminated against on the basis of sex or make any

factual assertion about any action being taken against her on account of her sex. 
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See Feeney, 442 U.S. at 272-74, 99 S.Ct. at 2292-93 (requiring purposeful, rather

than incidental, sex discrimination for an equal protection violation to have

occurred). The only oblique reference to sex discrimination in Lawon’s brief is a

reference to pregnancy discrimination, but this alone is not enough to raise a claim

of sex discrimination. See Bray v. Alexandria Women’s Health Clinic, 506 U.S.

263, 271-72, 113 S.Ct. 753, 760-61, 122 L.Ed.2d 34 (1993) (noting that, under the

Equal Protection Clause of the Fourteenth Amendment, distinctions based on

pregnancy do not ipso facto constitute discrimination based on sex). Given the lack

of any more specific references to sex discrimination in the complaint, we cannot

find that Lawson has met the applicable heightened pleading requirements when it

comes to her sex discrimination claim.

Accordingly, we AFFIRM the district court’s finding that Lawson met the

heightened pleading requirements for a § 1983 action and its denial of Curry and

Smitherman’s motion to dismiss Count I of Lawson’s amended complaint as to

Lawson’s racial discrimination and freedom of association claims. However, we

VACATE the district court’s order to the extent that it allowed Lawson to proceed

against Curry and Smitherman on Count I with a claim of sex discrimination.

AFFIRMED IN PART; VACATED IN PART; REMANDED WITH

INSTRUCTIONS.