United States Court of Appeals,

Eleventh Circuit.

No. 93-8252.

Larry Michael HAWK, Plaintiff-Appellant,

v.

GEORGIA DEPARTMENT OF CORRECTIONS, Bobby K. Whitworth,

Defendants-Appellees.

Feb. 14, 1995.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 1:92-CV-876-JTC), Jack T. Camp, Judge.

Before KRAVITCH, Circuit Judge, GODBOLD and MORGAN, Senior Circuit

Judges.

GODBOLD, Senior Circuit Judge:

Appellant Larry Michael Hawk sued under 42 U.S.C. § 1983,

seeking injunctive relief and damages for the failure or refusal of

Georgia correctional officials to release him to Texas, when, he

asserts, his sentence by a Georgia court provided that he serve his

Georgia sentence in Texas concurrently with a pre-existing Texas

sentence. Restating, he contends that his total commitment time to

be served under Georgia and Texas sentences was improperly

lengthened by the period of time that Georgia refused to release

him to Texas, the site where the two state sentences would operate

concurrently.

The district court denied injunctive relief and held that the

State of Georgia is entitled to sovereign immunity and that

defendant Bobby K. Whitworth, Commissioner of the Georgia

Department of Corrections, is entitled to immunity in his official

capacity. These rulings are not questioned on appeal; the

remaining issue concerns damages against the Commissioner in his
 1

The record does not reflect Hawk's status with Texas, but

counsel state their impression that he is now on parole from the

Texas sentence as well. 

individual capacity. The court dismissed this damages claim under

Rule 12(b)(6).

The sentence as originally imposed by the Georgia Superior

Court, in December 1989, is not in the record before us, but all

counsel agree that it did not state that the place for service of

the Georgia sentence would be Texas. Hawk asserts that his plea

agreement provided for service in Texas. More than two years after

the sentence was imposed the Georgia sentencing court entered what

it called a "clarifying order" stating: "It is the order of this

Court that the sentence imposed on December 18, 1989, was intended

to mean that [Hawk] be allowed to serve his Georgia time while

serving his time in Texas." The Department was notified of this

"clarifying order" but would not give effect to it by releasing

Hawk to the State of Texas. One or two years later Georgia granted

Hawk release on parole and released him to Texas. 1

 His damages

claim concerns the period between the Department's receipt of

notice of the "clarifying order" and his release to Texas.

The district court, and defendants on this appeal, rely upon

Ga.Code Ann. § 42-5-51(d) (1991):

(d) Notwithstanding any language in the sentence as

passed by the court, the commissioner may designate as a place

of confinement any available, suitable, and appropriate state

or county correctional institution in this state operated

under the jurisdiction or supervision of the department.

(Emphasis added.) The district court held that, regardless of what

the Superior Court said, this gave the Department of Corrections

sole power to determine where to incarcerate a prisoner. We do not
decide the case on this ground.

We affirm the decision of the district court that Whitworth

was entitled to qualified immunity. There are at least three

unanswered questions of law that prevent the law from being clearly

established and thus require that qualified immunity be granted.

First, defendants contend that a Georgia sentencing judge does not

have power or authority to impose a sentence of imprisonment which

provides that the sentence shall be served in another state

concurrently with a sentence previously imposed by such other

state. It is unclear whether a Georgia sentencing court has such

power or authority. Second, if a Georgia superior court has such

power or authority, we do not know whether, after imposing

sentence, it may enter an order providing that the sentence was

intended to mean that the prisoner be allowed to serve his Georgia

time while serving his time in another state, and whether such an

order, when entered, has the effect of amending the sentence.

Third, assuming the order is within the judge's authority and

operates to amend the sentence, we find no relevant Georgia

decisions determining whether, as contended by defendants, the

statutory authority under § 42-5-51(d) overrides Hawk's sentence as

amended.

In Chitwood v. Dowd, 889 F.2d 781 (8th Cir.1989), Chitwood

pleaded guilty in Missouri. His Missouri sentence provided that it

be served concurrently with his Oklahoma sentence. Missouri would

not release him to Oklahoma. The court held that Chitwood had a

legitimate expectation, amounting to a liberty interest protected

by the Due Process Clause of the Fourteenth Amendment, to be
transferred to Oklahoma. That case, however, did not have the

uncertainties of law present in the case before us. There was no

problem of the sentencing court's attempting to amend the sentence

as originally entered. There was no question of the power or

authority of the Missouri court to order that the Missouri sentence

be served concurrently with the Oklahoma sentence. A Missouri

statute provided that "[a] court may cause any sentence it imposes

to run concurrently with a sentence an individual is serving or is

to serve in another state." Id. at 786 (citations omitted). The

court held that a sentence imposed in accordance with this

statutory provision had meaning only if the Missouri Department of

Corrections had the duty to execute the sentence according to the

court's instruction, that is, Chitwood's sentence implicitly

required that he be transferred to Oklahoma, because that was the

only course of action that would ensure that the Oklahoma sentence

would run concurrently with the Missouri sentence. The statute

itself, the court held, broadened the authority of Missouri courts

to order transfer. For these reasons Chitwood does not give us

guidance.

AFFIRMED.