*

Honorable Julie E. Carnes, U.S. District Judge for the

Northern District of Georgia, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 94-8222.

Charles McCOY, Plaintiff-Appellee,

v.

Charles B. WEBSTER, Individually and as Sheriff of Richmond

County, Georgia, William Mnu Brown, Individually and as Deputy

Sheriff of Richmond County, Georgia, Defendants-Appellants,

Hobson Chavous, Henry Brigham, Herb Beckham, Jessie Carroll,

William Mayes and Lee Neal, as Commissioners of Richmond County,

Georgia, Defendants.

March 14, 1995.

Appeal from the United States District Court for the Southern

District of Georgia. (No. CV191-157), Dudley H. Bowen, Jr., Judge.

Before COX, Circuit Judge, FAY, Senior Circuit Judge, and CARNES*

,

District Judge.

PER CURIAM:

Charles McCoy filed this suit against Charles B. Webster and

William Brown, the Sheriff and a Deputy Sheriff, respectively, of

Richmond County, Georgia, asserting a 42 U.S.C. § 1983 claim and

various state tort claims. The district court held that Brown was

not entitled to qualified immunity and denied his motion for

summary judgment on all claims. The district court granted Webster

summary judgment on the section 1983 claim, but denied Webster's

motion for summary judgment on the state law claims. Both Brown

and Webster appeal. We reverse the denial of Brown's motion for

summary judgment on the basis of qualified immunity and remand the

state claims.
 1

The actual content of this conversation is in dispute. 

However, for purposes of summary judgment, we view the facts in

the light most favorable to the plaintiff. Hardin v. Hayes, 957

F.2d 845, 848 (11th Cir.1992). 

I.

After conviction in federal court, McCoy was temporarily

incarcerated in Cell Block East on the sixth floor of the Richmond

County, Georgia jail. Each of the six floors in the Richmond

County jail is divided into an east and west cell block. Both the

east and west cell blocks on the sixth floor are composed of

individual cells grouped around a community area. These community

areas are separated from one another by metal and glass walls

through which inmates can communicate.

At 1:30 a.m. on August 17, 1989, McCoy complained to the tower

guard that he was being threatened and harassed and had been beaten

by Craig Curry, another prisoner in Cell Block East. McCoy told

the guard that he feared for his life and asked to be moved to

another floor. He also requested medical attention for back pain

resulting from the beating. The tower guard informed his shift

supervisor, defendant Deputy Brown, of McCoy's complaints and was

instructed to send McCoy to Brown's office. The tower guard

recorded this in the tower guard log.

McCoy told Brown that Curry had beaten and threatened him and

again expressed fear for his life.1 The jail has a policy of

segregating an inmate once an official determines that the inmate's

safety is being threatened. Having determined that McCoy might be

in danger, Brown sent McCoy to the nurse for medical attention and

then placed McCoy in a holding cell for the night. Brown went off
 2

One of the original defendants was eliminated from the

action when the district court granted its motion to dismiss. 

The district court also granted the Commissioners' motion for

summary judgment. 

duty at about 6:00 a.m. He did not file any written report of

McCoy's complaint nor did he tell any member of the oncoming shift

about the incident.

At around 11:00 a.m. that day, McCoy was transferred back to

the sixth floor, but placed in Cell Block West. Brown did not

participate in the decision or the actual transfer. Two days

later, McCoy was attacked and beaten by other inmates incarcerated

on Cell Block West.

McCoy filed a complaint asserting a 42 U.S.C. § 1983 claim

against Brown, Sheriff Charles B. Webster, and several other

defendants. McCoy alleges that the defendants were deliberately

indifferent to his personal safety in violation of his Eighth

Amendment right to be free from cruel and unusual punishment. He

also asserts a number of tort claims under Georgia law. The

district court granted Webster's motion for summary judgment on the

section 1983 claim, but denied Webster summary judgment on the

Georgia negligence claims. The district court denied Brown's

motion for summary judgment on all claims. 2

 Brown and Webster

appeal.

On appeal, Brown contends that the district court erred in

denying him qualified immunity and in denying summary judgment on

the supplemental Georgia negligence claim. Webster asserts that

the district court erred in denying summary judgment on the Georgia

negligence claims.
 3

This action was filed in August 1991, after the enactment

of the Judicial Improvements Act of 1990, Pub.L. No. 101-650, 104

Stat. 5113. Thus 28 U.S.C. § 1367, codifying supplemental

jurisdiction, applies to this case. Section 1367(a) requires the

district court to exercise supplemental jurisdiction over claims

which are closely related to claims over which the district court

has original jurisdiction. 28 U.S.C. § 1367(a) (1993). "Such

supplemental jurisdiction shall include claims that involve the

joinder or intervention of additional parties." Id. Therefore,

the district court was not required to dismiss the supplemental

state law claims against Webster although no federal claim

remains against Webster. Id.; see also Palmer, 22 F.3d at 1567. 

If after this appeal, however, no federal claim remains against

any of the defendants, the district court may decline to exercise

supplemental jurisdiction over the state claims against both

Brown and Webster. 28 U.S.C. § 1367(c) (1993); see discussion

infra part IV. 

II.

 A denial of summary judgment on the basis of qualified

immunity is immediately appealable. Mitchell v. Forsyth, 472 U.S.

511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). The issue

of qualified immunity presents a question of law; thus, on appeal,

this court considers the issue de novo. Elder v. Holloway, ---

U.S. ----, ----, 114 S.Ct. 1019, 1022, 127 L.Ed.2d 344 (1994).

Because the district court properly retained jurisdiction over

Webster, 28 U.S.C. § 1367(a) (1993); see also Palmer v. Hospital

Authority of Randolph Co., 22 F.3d 1559, 1568 (11th Cir.1994),3 we

have discretionary pendent appellate jurisdiction over Webster's

appeal. Swint v. City of Wadley, Al., 5 F.3d 1435, 1449 (11th

Cir.1993), cert. granted sub nom. Swint v. Chambers County Comm'n,

--- U.S. ----, 114 S.Ct. 2671, 129 L.Ed.2d 808 (1994).

III.

 Qualified immunity shields government officials performing

discretionary duties from civil trial and liability if their

conduct violates no "clearly established statutory or
constitutional rights of which a reasonable person would have

known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727,

2738, 73 L.Ed.2d 396 (1982). In other words, "[t]he contours of

the right must be sufficiently clear that a reasonable official

would understand that what he is doing violates that right."

Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3039, 97

L.Ed.2d 523 (1987). Qualified immunity protects "all but the

plainly incompetent or those who knowingly violate the law."

Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89

L.Ed.2d 271 (1986). Therefore, "[f]or qualified immunity to be

surrendered, pre-existing law must dictate, that is truly compel

(not just suggest or allow or raise a question about), the

conclusion for every like-situated, reasonable government agent

that what defendant is doing violates federal law in the

circumstances." Lassiter v. Alabama A & M University, 28 F.3d

1146, 1150 (11th Cir.1994) (en banc).

This court has developed the following framework for analyzing

qualified immunity:

In Zeigler v. Jackson, [716 F.2d 847, 849 (11th Cir.1983),]

this Court established a two-step analysis to be used in

applying the Harlow test: the defendant government official

must prove that "he was acting within the scope of his

discretionary authority when the allegedly wrongful acts

occurred," and then the burden shifts to the plaintiff to

demonstrate that the defendant "violated clearly established

constitutional law."

Sammons v. Taylor, 967 F.2d 1533, 1539 (11th Cir.1992).

 Here, the district court found against Brown in both steps of

the two-step analysis. The district court concluded that Brown was

performing a ministerial duty, rather than acting with discretion,

when he moved McCoy from the sixth floor to the holding cell upon
being informed of the threat to McCoy's life. The district court

further held that even if Brown were acting within his

discretionary authority, McCoy had successfully demonstrated that

"a reasonable official in Lt. Brown's circumstances would have

known that [Brown's] conduct violated clearly established

constitutional law based upon the information available to him."

(R1-28-14) (internal quotations omitted). We disagree with the

district court's analysis under both steps.

The district court concluded that Brown was not acting with

discretion but merely performing a ministerial duty because the

Richmond County jail had a policy of moving inmates who were in

danger. We need not find that Brown's conduct was discretionary in

this sense in order to grant him qualified immunity. In Jordan v.

Doe, 38 F.3d 1559, 1566 (11th Cir.1994), we interpreted the term

"discretionary authority" to include actions that do not

necessarily involve an element of choice. In Jordan, we held that

qualified immunity was available to a government official whose

actions may be ministerial so long as the official's actions " "(1)

were undertaken pursuant to the performance of his duties,' and (2)

were "within the scope of his authority' ". Id. (quoting Rich v.

Dollar, 841 F.2d 1558, 1564 (11th Cir.1988)). Brown's conduct

falls within this definition; he was acting within his authority

and pursuant to his duties as shift supervisor. Therefore, Brown

has met his burden by establishing that he was acting within the

scope of his discretionary authority.

Once Brown has established that he was acting within the scope

of his discretionary authority, the burden shifts to McCoy to
demonstrate that a reasonable official would have known that his

conduct violated a clearly established constitutional right.

Zeigler, 716 F.2d at 849. The district court found that McCoy had

satisfied this burden and that Brown was therefore not entitled to

qualified immunity. We disagree.

As noted by the district court, a prison official's failure to

act in certain circumstances can amount to an infliction of cruel

and unusual punishment. An official's deliberate indifference to

a known danger violates an inmate's Eighth Amendment rights.

Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 290-91, 50

L.Ed.2d 251 (1976). More specifically, "[w]hen officials become

aware of a threat to an inmate's health and safety, the eighth

amendment's proscription against cruel and unusual punishment

imposes a duty to provide reasonable protection." Brown v. Hughes,

894 F.2d 1533, 1537 (11th Cir.), cert. denied, 496 U.S. 928, 110

S.Ct. 2624, 110 L.Ed.2d 645 (1990), see also Hopkins v. Britton,

742 F.2d 1308, 1310 (11th Cir.1984). However, "[i]t is obduracy

and wantonness, not inadvertence or error in good faith, that

characterize the conduct prohibited by the Cruel and Unusual

Punishments Clause...." Whitley v. Albers, 475 U.S. 312, 319, 106

S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986). Furthermore, "[t]o be

cruel and unusual punishment, conduct that does not purport to be

punishment at all must involve more than ordinary lack of due care

for the prisoner's interests or safety." Id., 475 U.S. at 319, 106

S.Ct. at 1084.

McCoy contends that although Curry did not personally attack

him a second time, Curry was still responsible for the attack
because Curry was able to communicate to inmates on Cell Block West

through the glass partition. Additionally, McCoy argues that he

would not have been placed in either cell block on the sixth floor

if Brown had communicated the situation to the oncoming shift.

Finally, McCoy contends that Brown's failure to communicate the

situation to the oncoming shift demonstrates deliberate

indifference to McCoy's safety.

Here, Brown took measures to provide McCoy reasonable

protection. After making sure McCoy received medical attention,

Brown placed McCoy in a holding cell for the night. The tower

guard made a record of the situation in the log after receiving

instructions from Brown. Brown had nothing to do with McCoy's

transfer to Cell Block West on the sixth floor. McCoy was not

attacked by Curry and the attack did not occur until two days after

McCoy's return to the sixth floor. We conclude that a reasonable

prison official in Brown's position could have believed his conduct

to be lawful in light of the information he possessed.

It is unclear to us that Brown's omission rises to the level

of obduracy and wantonness required by Whitley. Accordingly, Brown

could reasonably believe that his failure to communicate the

situation to the oncoming shift was not unconstitutional.

Furthermore, Lassiter requires McCoy to point to a case in which

similar conduct was held to be deliberately indifferent in order to

demonstrate that his clearly established right was violated.

Lassiter, 28 F.3d at 1151. McCoy has failed to do so and our

research reveals no such case. The district court, therefore,

erred in concluding that McCoy has satisfied his burden of
 4

Under some circumstances, we have held that a district

court abuses its discretion when it dismisses a pendent state law

claim after the statute of limitations has run. Edwards v.

Okaloosa Co., 5 F.3d 1431, 1435 (11th Cir.1993) (applying common

law pendent claim jurisdiction as it existed prior to the

enactment of the Judicial Improvements Act of 1990). We express

no opinion as to whether there is a statute of limitations issue

in this case. 

demonstrating that Brown's conduct violated a clearly established

right. Under these circumstances, Brown is entitled to qualified

immunity and we reverse the denial of summary judgment on the

section 1983 claim.

IV.

The district court also denied summary judgment on the state

tort claims McCoy asserts against Brown and Webster. Although we

have the discretion to review nonfinal decisions of the district

court because we properly have jurisdiction to review the denial of

qualified immunity, Swint, 5 F.3d at 1449, we decline to exercise

our pendent appellate jurisdiction over these nonfinal decisions.

Furthermore, because the district court's denial of summary

judgment on the federal claim against Brown is reversed, no federal

claim remains. Pursuant to 28 U.S.C. § 1367(c), the district court

may decline to exercise its supplemental jurisdiction when all

claims over which the district court has original jurisdiction have

been dismissed. 28 U.S.C. § 1367(c). 4

 The district court,

therefore, must revisit the state law claims.

V.

Because the law was not clearly established that Brown's

conduct, based on the information he possessed, violated McCoy's

Eighth Amendment right, Brown is entitled to qualified immunity.
Therefore, we reverse the district court's denial of summary

judgment on the section 1983 claim against Brown. The state law

claims should be revisited following remand in light of the fact

that no federal claim remains.

REVERSED in part and REMANDED.