*

 Honorable Robert B. Propst, Senior U. S. District Judge for the Northern District of

Alabama, sitting by designation.

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 95-6123 

WALTER MCMILLIAN,

Plaintiff-Appellee,

versus

W. E. JOHNSON, TOMMY HERRING, TOM ALLEN,

in their individual capacities, et al.,

Defendants,

THOMAS TATE, SIMON BENSON, LARRY IKNER,

in their individual capacities,

Defendants-Appellants,

ASSOCIATION OF COUNTY COMMISSIONERS OF ALABAMA

LIABILITY SELF INSURANCE FUND,

Intervenor-Defendant.

 

 Appeals from the United States District Court

for the Middle District of Alabama

 

(December 3, 1996)

ON PETITION FOR PANEL REHEARING AND

SUGGESTION OF REHEARING EN BANC

Before COX and BARKETT, Circuit Judges, and PROPST*, Senior

District Judge.

PER CURIAM:
 1

 We have jurisdiction over this appeal from the district

court's denial of state law immunity because the state law immunity

asserted is an immunity against suit. See Griesel v. Hamlin, 963

F.2d 338, 340-41 (11th Cir. 1992).

 2 Quoting Parker v. Amerson , 519 So.2d 442, 442-43

(Ala.1987), Tate argues that a sheriff is immune from suit under

2

The opinion reported at 88 F.3d 1554 (11th Cir. 1996), is

amended by substituting the following for section “F”, under part

IV of the opinion, pages 1571-73.

IV. Discussion

F. Tate's Sovereign Immunity From State Law Claims

The district court found that McMillian had presented

sufficient evidence to create a genuine issue of material fact on

three state law claims against Tate, Ikner, and Benson: malicious

prosecution (Count Twenty); abuse of process (Count Twenty-One);

and outrage (Count Twenty-Six). In addition, the court found that

a genuine issue exists as to a state law outrage claim against Tate

and the DOC defendants (Count Twenty-Five). The court rejected

Tate’s state law sovereign immunity and state law discretionary

immunity defenses, holding that neither form of state law immunity

shields officials sued for intentional or malicious wrongdoing in

their individual capacities.

On appeal,1

 Tate contends that Alabama sheriffs are protected

by sovereign immunity under § 14 of the Alabama Constitution, even

when they are sued in their individual capacities for malicious or

intentional wrongdoing. According to Tate, a suit may be

maintained against a sheriff only if it falls within one of five

limited categories.2

 It is undisputed that McMillian’s claims do
Article I, § 14, Alabama Constitution of 1901, in the execution of

the duties of his office, except for actions brought (1) to compel

him to perform his duties, (2) to compel him to perform ministerial

acts, (3) to enjoin him from enforcing unconstitutional laws, (4)

to enjoin him from acting in bad faith, fraudulently, beyond his

authority, or under mistaken interpretation of the law, or (5) to

seek construction of a statute under the Declaratory Judgment Act

if he is a necessary party for the construction of the statute.

3

not fall within any of the five categories.

We find in decisions by Alabama's appellate courts no clear

answer to the question presented. Some Alabama decisions,

including the most recent ones, seem to support Tate's position.

Karrick v. Johnson, 659 So.2d 77 (Ala. 1995)(deputy sheriff immune

from suit for malicious prosecution and false imprisonment); Drain

v. Odom, 631 So.2d 971 (Ala. 1994)(sheriff is immune from suit in

his official capacity for negligent performance of his statutory

duties); Parker v. Amerson, 519 So.2d 442 (Ala. 1987)(sheriff is an

executive officer of State of Alabama and is immune from suit under

Article I, § 14, Alabama Constitution of 1901, in the execution of

duties of his office); Alexander v. Hatfield, 652 So.2d 1142 (Ala.

1994)(deputy sheriffs are immune from suit to the same extent as

sheriffs). Some Alabama decisions point in the other direction.

Phillips v. Thomas, 555 So.2d 81 (Ala. 1989)(Clearly, a state

officer or employee is not protected by § 14 when he acts

willfully, maliciously, illegally, fraudulently, in bad faith,

beyond his authority, or under a mistaken interpretation of law);

Unzicker v. State, 346 So.2d 931 (Ala. 1977)(State immune when

impleaded as defendant, but governor, commissioner of conservation,

and state highway director, in their respective capacities, were
4

not also immune where it was alleged that those officers acted

fraudulently, in bad faith, beyond their authority, or under a

mistaken interpretation of the law); Milton v. Espey, 356 So.2d

1201 (Ala. 1978)(Section 14 does not necessarily immunize State

officers or agents from individual civil liability); DeStafney v.

University of Alabama, 413 So.2d 391 (Ala. 1982)(defense of

sovereign immunity afforded university and its president did not

extend to employee whose alleged tortious act was the basis of the

claim); Lumpkin v. Cofield, 536 So.2d 62 (Ala. 1988)(defense of

sovereign immunity does not bar suits against state officers and

employees for torts committed willfully, maliciously, and outside

the scope of their authority); See also Gill v. Sewell, 356 So.2d

1196 (Ala. 1978). 

But a recent decision by this court, Tinney v. Shores, 77 F.3d

378 (11th Cir. 1996), holds that under Alabama law a sheriff and

deputy sheriff are shielded by sovereign immunity against claims

based upon intentional torts. Some of the language in Tinney is

confusing; the court says that "[u]nder Alabama law, sheriffs and

deputy sheriffs, in their official capacities and individually, are

absolutely immune from suit when the action is, in effect, one

against the state." Id. at 383. The claim under consideration in

Tinney was against the sheriff and deputy sheriff in their

individual capacities. However, no consideration was given to

whether the action was, in effect, one against the state. Federal

law controls a determination relative to whether a state is the

real party-in-interest to the action, and under federal law the
5

claim in Tinney was not one against the state. See Kentucky v.

Graham, 473 U.S. 159, 167-68, 105 S. Ct. 3099, 3106-07 (1985); and

Jackson v. Georgia Dep't of Transp., 16 F.3d 1573, 1577 (11th Cir.

1994). Notwithstanding this confusing language in Tinney, the

holding of the case is clear: under Alabama law, a claim against

an Alabama sheriff in his individual capacity is barred by the

doctrine of sovereign immunity. We are bound to follow Tinney, and

do so. We hold that the district court erred in rejecting Tate's

sovereign immunity defense to the state law claims.

The petition for panel rehearing is, except as granted hereby,

DENIED, and no member of this panel nor other judge in regular

active service on the court having requested that the court be

polled on rehearing en banc (Rule 35, Federal Rules of Appellate

Procedure; Eleventh Circuit Rule 35-5), the Suggestion of Rehearing

En Banc is DENIED.