United States Court of Appeals,

Eleventh Circuit.

No. 96-5354. Miguel FLORES, Plaintiff-Appellee,

v. Michael J. SATZ, Suzanne M. White, et al., Defendants-Appellants. March 23, 1998. Appeal from the United States Di strict Court for the Southern Di strict of Florida. (No. 95-6732-CVWDF), Wilkie D. Ferguson, Jr., Judge. Before EDMONDSON and BIRCH, Circuit Judge s, and FAY, Senior Circuit Judge.

PER CURIAM: Defendants appeal the district court's denial of a motion to dismiss Plaintiff's claims on the basis of qualified immunity. We conclude that Defendants are entitled to immunity and reverse. The State Criminal Proceedings On 2 August 1991, the Broward County Sheriff's Office received a report that a crime was committed. The complaining witness identified Migue l Flores as the perpetrator of the alleged crime. Flores was—based on the allegations of the complaining witness—then arrested, charged with capital sexual battery, and incarcerated. On 30 August 1991, a state court denied bond and ordered a psychological evaluation of the complaining witness. But, upon a motion by the prosecution, the state court later canceled the evaluation. Trial was then scheduled for 21 November 1991. On that date, however, a newly-assigned prosecutor requested a continuan ce because the case had just been re-assigned to him within the state attorney's office. The request for a continuance was granted. On 20 February 1992, Flores's counsel file d a motion to compel, in which he sought1 Defendants included these people: (1) Richard Giuffreda, Assistant State Attorney (ASA); (2) Leslie Robson, ASA; (3) Michael Satz, Broward County State Attorney; (4) Brian Trehay, ASA; (5) Suzanne White, ASA; (6) Lee Seidman; (7) Alan Schreiber, Broward County Public Defender; and (8) Jose Reyes, Public Defender.

2 Plaintiff also made other charges in the complaint: (1) false arrest; (2) false imprisonment; (3) violation of privacy rights; (4) negligence; and (5) legal malpractice. The Magistrate, however, dismissed these claims. That portion of the Magistrate's decision is not challenged on appeal.

3 Only Giuffreda, Robson, Satz, Trehay, and White are parties to this appeal. disclosure of the medical and psychological record s of the complaining witness, as well as police reports that related to the witness's physical or psychological well-being. At a hearing on this motion, the prosecutor agreed to provide the materi als requested to the defense and also agreed to supervised pretrial release for Flores. The pr osecutor further announced that the State would be seeking its own psychiatric evaluation of the co mplaining witness. On 4 April 1992, the State announced that it was entering a nolle prosse of the charges against Flores. The Civil Proceedings in Federal Court Based on these events, Flores, as Plainti ff, filed a complaint against Defendants 1 for these allegedly wrongful acts: (1) violation of his F ourth Amendment right to be free from unreasonable seizure; and (2) violation of his Fourteenth Amendment right to due process. In response, Defendants claimed that they were entitled to qualified immunity for claims against them in their individual capacities and moved to dismiss the co mplaint. A Magistrate Judge (Magistrate), however, denied Defendants' motion on this point. 2 In rejecting Defendants' argument, the Magistrate stated that "the extent of any qua lified immunity defense in a civil rights action is dependent on the circumstances and motivation of defendants' actions as established by the evidence." The district court affirmed the Magistrate's report in its entirety. Defendants appeal. 3

Discussion4 It appears the Magistrate (and the district court by approving and adopting the Magistrate's report) applied the wrong legal standard in making the qualified immunity determination. The Magistrate would not accept qualified immunity; he said that it was "dependent on the circumstances and motivation of defendants' actions as established by the evidence." But, we have "rejected the inquiry into [an official's ] state of mind in favor of a wholly objective standard." Foy, 94 F.3d at 1532 (internal quotations and citation omitted). A party's intent and motivation are not significant in making a qualified immunity determination unless "subjective motive or intent is a critical element of the alleged constitutional violation...." Walker v. Schwalbe, 112 F.3d 1127, 1132 (11th Cir.1997).

Plaintiff's Fourth Amendment and Bradyclaims do not contain a subjective component. See Graham v. Connor, 490 U.S. 386, 399, 109 S.Ct. 1865, 1873, 104 L.Ed.2d 443 (1989) ("Fourth Amendment inquiry is one of "objective reasonableness' under the circumstances, and subjective concepts like "malice' and "sadism' have no proper place in that inquiry."); Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196- 97, 10 L.Ed.2d 215 (1963) ("[T]he suppression by the prosecution of evidence favorable Defendants argue that the district court erroneously determined that they were entitled to no qualified immunity. This court reviews a district court's denial of a motion to dismiss a complaint on the basis of qualified immunity de novo. Williams v. Alabama State Univ., 102 F.3d 1179, 1182 (11th Cir.1997). "[Q]ualified immunityprotects government officials performing discretionary functions from the burdens of civil trials and from liability." McMillian v. Johnson, 88 F.3d 1554, 1562 (footnote omitted), amended on other grounds, 101 F.3d 1363 (11th Cir.1996).

In Foy v. Holston, we wrote: Once the qualified immunity defense is raised, pl aintiffs bear the burden of showing that the federal rights allegedly violated were clearly established.... This burden is not easily discharged: "That qualified immunity protects government actors is the usual rule; only in exceptional cases will government actors have no shield against claims made against them in their individual capacities. " Plaintiffs cannot carry their burden of proving the law to be clearly established by stating constitutional rights in general terms. 94 F.3d 1528, 1532 (11th Cir.1996) (quoting Lassiter v. Alabama A & M Univ., 28 F.3d 1146, 1149 (11th Cir.1994)). Instead, for qualified immunity to be denied, " "pre-existing law must dictate, that is, truly compel ... the conclusion for every like-situated, reasonable government agent that what defendant is doing violates federal law in the circumstances. ' " 4 McMillian, 88 F.3d at 1562 (quotingto an accused upon request violates due process where the evidence is material either to guilt or to punishment irrespective of the good faith or bad faith of the prosecution. " (emphasis added)); United States v. Schlei, 122 F.3d 944, 988 (11th Cir.1997) (no intent element is among the elements of a Bradyclaim).

5 Plaintiff did not allege that Defendants violat ed his right to a speedy trial because of the delay in prosecuting his case. And, we observe that the delay would not have been a per se violation of Plaintiff's right to a speedy trial. See generally United States v. Hayes, 40 F.3d 362, 365-66 (11th Cir.1994) (discussing the four-part test for determining whether a person's right to a speedy trial has been violated; holding that fi ve-year delay between indictment and trial was not violation of right to a speedy trial).

6 While not argued on appeal, we note that Defendants are probably entitled to absolute immunity as prosecutors. See Elder v. Athens-Clarke County, Ga., 54 F.3d 694, 695 (11th Cir.1995) ("A prosecutor's decision to bring charges against a person, so long as the prosecutor is acting within the scope and territorial jurisdic tion of his office, is immune from an action for damages under § 1983.").

7 Plaintiff cites two cases in which the courts concluded that a section 1983 claim may be actionable if government officials intentionally conceal—as opposed to fail to investigate fully—the true facts about the crime at issue. See Bell v. City of Milwaukee, 746 F.2d 1205, 1260-1262 (7th Cir.1984); Ryland v. Shapiro, 708 F.2d 967, 974-975 (5th Cir.1983). Plaintiff, however, alleged only that the Defendants failed to investigate fully the charges against him. He did not allege that Defendants intentionally concealed facts about the crime at issue here. In addition, Plaintiff cites a case in which a court held that a section 1983 claim Lassiter, 28 F.3d at 1150). In this case, Plaintiff claims that qualified i mmunity should be denied for these reasons: (1) Defendants failed to investigate properly the comp laining witness's credibility and mental stability and also delayed Plaintiff's prosecution by freque ntly reassigning his case, which caused him to be unlawfully seized (that is, delayed his release) in violation of the Fourth Amendment; and (2) the prosecution failed to disclose disc overy materials in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which resulted in a denial of due process. 5 Plaintiff's arguments do not pers uade us. That the prosecution did not investigate properly or prosecute expeditiously the charges against him does not violate clearly established constitutional rights. 6 The cases cited by Plaintiff involve materially different facts 7 and, moreover, are notmay be actionable if the police detain a person beyond a time when they know him to be, in fact, innocent. See Gay v. Wall, 761 F.2d 175 (4th Cir.1985). But again, Plaintiff alleged only that Defendants held Plaintiff for a time when they "knew or should have known" that there was insufficient evidence to warrant prosecution. Never did he allege that Defendants knew Plaintiff was, in fact , innocent of the charges against him.

8 We also note that Plaintiff's complaint might not allege a Brady violation for another reason. In his complaint, Plaintiff merely alleged that Defendants failed to provide him with discovery, such as medical and police reports. But, Plain tiff did not allege how—and to what extent—these reports would be exculpatory. And, Bradyis " "not a discovery rule, but a rule of fairness and minimum prosecutorial obligation.' " United States v. Campagnuolo, 592 F.2d 852, 859 (5th Cir.1979) (quoting United States v. Beasley, 576 F.2d 626, 630 (5th Cir.1978)). As a result, an attempt to have Brady encompass discovery materials, in general, must be unavailing. controlling in this circuit. See Jenkins v. Talladega City Bd. of Educ., 115 F.3d 821, 826-27 n. 4 (11th Cir.1997) (en banc) ("In this circuit, the law can be "clearly established' for qualified immunity purposes only by decisions of the U.S. Supreme Court, Eleventh Circuit Court of Appeals, or the highest court of the state where the case arose." (citation omitted)). In addition, despite Plaintiff's claims, he ha s not shown that Defenda nts violated a clearly established right under Brady. " Bradyprotects an accused's due process right to a fair trial." McMillian, 88 F.3d at 1567. And, due proce ss is violated when a defenda nt is convicted in a trial in which the prosecution failed to disclose to the defense exculpatory or impeachment evidence that

undermines confidence in the outcome of the trial. See Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97; United States v. Newton, 44 F.3d 913, 918 (11th Cir.1994) ("The Bradyrule protects a defendant

from erroneous c onviction ...."); see also United States v. Bailey, 123 F.3d 1381, 1398 (11th Cir.1997) (no Brady violation because no exculpatory evidence that would "have affected [defendant's] conviction"). Plain tiff, however, was never convicted and, therefore, did not suffer the

effects of an unfair trial. As such, the facts of this case do not implicate the protections of Brady. 8 See United States v. McKinney, 758 F.2d 1036, 1049 (5th Cir.1985) (the court cannot reverse a

conviction under Brady "unless a fundamentally unfair trial resulted"); see also United States v.O'Keefe, 128 F.3d 885, 898 (5th Cir.1997) (So long as the ev idence is disclosed "at trial in time for it to be put to effective use, a new trial will not be granted "simply because [the Bradyevidence] was not disclosed as early as it might have and, indeed, should have been.' " (quoting McKinney, 758 F.2d at 1050)). Thus, Plaintiff has failed to show that Defenda nts violated clearly established constitutional rights. Defendants are entitled to qualified immunity. The order of the district court is reversed.

REVERSED.