PUBLISH

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ------------------------------------------- No. 97-4920 -------------------------------------------- D. C. Docket No. 96-6086-CV-WJZ

ROBERT R. ROWE, Plaintiff-Appellant, versus ALAN H. SCHREIBER, Defendant-Appellee.

---------------------------------------------------------------- Appeal from the United States District Court for the Southern District of Florida ---------------------------------------------------------------- (April 29, 1998)

Before EDMONDSON and BIRCH, Circuit Judges, and FAY, Senior Circuit Judge.

EDMONDSON, Circuit Judge:

Plaintiff Robert Rowe appeals the

district court’s grant of summary

judgment for Defendant Alan Schreiber in

a section 1983 case based mainly on the

Sixth Amendment and brought against Schreiber in his individual capacity. The Plaintiff states in his brief that Schreiber denied indigent criminal defendants rights protected by “the Sixth, Eighth and Fourteenth Amendments.” But Plaintiff’s discussion focuses on the Sixth Amendment right to effective assistance of counsel. No further mention is made of the Eighth Amendment; and only Plaintiff’s Brady rights are discussed in relation to “due process.” Because of the absence of argument, the issues of Eighth Amendment and Fourteenth Amendment violations (other than Brady) have been abandoned and will not be considered in this appeal. See Marek v. Singletary, 62 F.3d 1295, 1298 n.2 (11th Cir. 1995) (“Issues not clearly raised in the briefs are considered abandoned.”) (citation omitted); Continental Technical Servs., Inc. v. Rockwell Int’l Corp., 927 district court granted summary judgment

after concluding that Defendant, as public

defender, was entitled to absolute

immunity. Because we conclude that

Defendant was undoubtedly entitled to

qualified immunity (which Defendant also

asserted in the district court), we need not

F.2d 1198, 1199 (11th Cir. 1991) (“An argument not made is waived. . . .”); Harris v. Plastics Mfg. Co., 617 F.2d 438, 440 (5th Cir. 1980) (Although posed as a question on appeal, appellants “do not discuss the issue in their argument. Any contention that the trial court erred [on that issue] is therefore abandoned.”); see also Fed.R.App.P. 28(a)(5) (“argument shall contain discussion of issues presented”). decide whether absolute immunity was appropriate. We affirm.

Background

Plaintiff was indicted in Broward

County, Florida, on four counts of sexual

battery. An assistant public defender (“the

APD”), who is no party to this case, We may affirm a decision on any adequate grounds, including grounds other than the grounds upon which the district court actually relied. See Parks v. City of Warner Robins, 43 F.3d 609, 613 (11th Cir. 1995). represented Plaintiff during the criminal

trial. Plaintiff was convicted and

sentenced to life imprisonment. A

motion to vacate the conviction was filed

by Plaintiff. A Florida court granted the

motion based on the conclusion that

Plaintiff received ineffective assistance

of counsel. A new trial was ordered, but the

State of Florida nolle prosequi the charges.

Plaintiff then filed a section 1983 claim

against the Public Defender for Broward

County, Alan Schreiber, in his individual capacity. Never does the complaint allege

that Schreiber acted as Plaintiff’s defense

counsel. Instead, the complaint alleges

that Defendant -- as an administrator --

created systemic deficiencies in the public

defender system generally by denying

investigative resources and expert

witness resources to assistant public

Plaintiff also included a state law claim in his Second Amended Complaint. That claim was dismissed by the district court and is not an issue on appeal. defenders, by placing pressure on the

defenders to “hurry their clients’ cases to

trial,” and by permitting assistant public

defenders to assume overwhelming

caseloads. No allegation has been made

that Defendant made decisions specifically

about the criminal defense of Plaintiff;

nor has an allegation been made that

specific services were requested of

Defendant by Plaintiff.

Plaintiff points only to errors made

by the APD who represented him. Plaintiff

claims, among other things, that the APD

did not properly obtain Brady

information from the State; that the APD

repeatedly told Plaintiff that the APD did

not have enough time to prepare

Plaintiff’s defense; that the APD failed to

investigate adequately Plaintiff’s defense;

and that the APD told Plaintiff that the

Public Defender’s Office was cutting money

allocated for case investigation. These

deficiencies, Plaintiff claims, were caused

by the general administrative decisions of

Defendant (for example, resource

management decisions, case load

management decisions, and hiring and

firing decisions). Again, Plaintiff does not

claim that Schreiber was, in any way,

Plaintiff’s defense lawyer.

Defendant filed a motion for summary

judgment based on three alternative

defenses: (1) as public defender, Defendant

was not acting under color of state law as

required for a claim under section 1983; (2)

as public defender, Defendant was entitled

to absolute immunity from section 1983

liability; or (3) Defendant was entitled to

qualified immunity. The district court

granted Defendant’s motion for summary

judgment, concluding that Defendant -- as

public defender -- was entitled to absolute

immunity.

Discussion

We review a district court’s grant of

summary judgment de novo, with all facts

viewed in the light most favorable to the

nonmoving party. See Hale v. Tallapoosa

County, 50 F.3d 1579, 1581 (11th Cir. 1995).

Because we conclude that Defendant is

entitled to qualified immunity, we have

assumed, arguendo, that Defendant -- when

acting as a public administrator -- was

acting under color of state law and was

not entitled to absolute immunity.

“Qualified immunity protects

government officials performing

discretionary functions from civil trials

(and other burdens of litigation, including

discovery) and from liability if their

conduct violates no ‘clearly established

statutory or constitutional rights of which

a reasonable person would have known.’”

Lassiter v. Alabama A&M Univ., Bd. of

Trustees, 28 F.3d 1146, 1149 (11th Cir. 1994) (en

banc) (quoting Harlow v. Fitzgerald, 102 S.Ct. 2727, 2738 (1982)). Thus, Plaintiff must

point to a preexisting, clearly established

right that was violated by Defendant. See

Lassiter, 28 F.3d at 1149; see also Mitchell v.

Forsyth, 105 S.Ct. 2806, 2816 (1985).

Plaintiff argues that the well-established

Sixth Amendment right to effective

assistance of counsel is the clearly

established right violated by Defendant.

But, “courts must not permit plaintiffs to

discharge their burden by referring to

general rules and to the violation of

abstract ‘rights.’” Lassiter, 28 F.3d at 1150

(citing Anderson v. Creighton, 107 S.Ct. 3034, 3038-39 (1987)) (footnote omitted). The

right to effective assistance of counsel,

although a generally established right of

criminal defendants, is not sufficiently

specific to overcome Defendant’s right to

qualified immunity from this suit.

“For the law to be clearly established to

the point that qualified immunity does not

apply, the law must have earlier been

developed in such a concrete and factually

defined context to make it obvious to all

reasonable government actors, in the

defendant’s place, that ‘what he is doing’

violates federal law.” Lassiter, 28 F.3d at 1149 (quoting Anderson, 107 S.Ct. at 3039).

“Public officials are not obligated to be

creative or imaginative in drawing

analogies from previously decided cases.”

Lassiter, 28 F.3d at 1150 (quoting Adams v.

St. Lucie County Sheriff’s Dep’t, 962 F.2d th 1563, 1573, 1575 (11 Cir. 1992) (Edmondson,

J., dissenting), approved en banc, 998 F.2d th (11 Cir. 1993)). “If case law, in factual

terms, has not staked out a bright line,

qualified immunity almost always protects

the defendant.” Post v. City of Fort

Lauderdale, 7 F.3d 1552, 1557 (11th Cir. 1993).

In this case, for qualified immunity

not to apply, the right which must be clearly

established is some right to have the

resources of the public defender’s office

administratively allocated in a specific

manner or the right to have certain administrative decisions made. Plaintiff Plaintiff argues that the right to have his case adequately investigated and adequately prepared is also clearly established. The right to effective assistance of counsel may embody the rights to adequate preparation and investigation, see Weidner v. Wainwright, 708 F.2d 614, 616 (11th Cir. 1983), but the lawyer decisions of what to investigate and what to prepare in Plaintiff’s criminal case were the APD’s, not Defendant’s. The conduct complained of by Plaintiff about Defendant is the public administrative act of allocating the available resources for investigation and preparation generally. Included in Plaintiff’s argument that the APD did not adequately investigate is Plaintiff’s claim that his Brady rights were not adequately protected; see generally Brady v. Maryland, 373 U.S. 83 (1963). But Plaintiff has failed to point to conduct of Defendant (as a public administrator) that caused a violation of Plaintiff’s Brady rights. More important, Plaintiff has pointed to no law that clearly established that a person administering a public defender program is the guarantor, puts forward no existing law to show the

clearly established nature of this “right.”

That general administrative decisions of

the kind at issue in this case violated

Plaintiff’s Sixth Amendment right to

effective assistance of counsel, when the

decisions were made by someone not

acting as Plaintiff’s lawyer, was not (and is not) clearly established.

through his administrative decisions, of all indigent defendants’ Brady rights.

We accept that indigent defendants must be provided particular services, such as expert witnesses, by the State under certain circumstances. But to be entitled to those Plaintiff has, in fact, presented

nothing to show that every reasonable

public defender in Defendant’s position

would have known that the conduct --

making decisions about how to allocate

services, a defendant is required to request the State for the services. See Moore v. Kemp, 809 F.2d 702, 709 (11th Cir. 1987) (en banc). No allegation has been made that Plaintiff asked Defendant to provide a service, which service was denied.

“Supreme Court precedent establishes the principle that the due process clause of the fourteenth amendment requires that the state, upon request, provide indigent defendants with the ‘basic tools of an adequate defense . . . when those tools are available for a price to other prisoners.’” Moore, 809 F.2d at 709 (emphasis added) (quoting Britt v. North Carolina, 92 S.Ct. 431, 433 (1971)); see also Ake v. Oklahoma, 105 S.Ct. 1087 (1985).

These cases -- involving requests made to courts -- do not clearly establish a right to the kind of administrative decisions involved in this case, especially in the absence of a request that the public administrator provide a particular service to a particular defendant. Plaintiff’s only alleged request for an expert witness was to his APD, not to Defendant. limited resources within his office and how

otherwise to manage the public defender’s

office -- violated Plaintiff’s constitutional

rights. The “right” allegedly violated is the

Sixth Amendment right to effective

assistance of counsel; but no precedents

have been cited that involve the

administrative duties of a public defender,

as opposed to the traditional legal

functions performed by the criminal

defendant’s specific attorney: that is,

lawyer-as-lawyer decisions. The cases cited

by Plaintiff are not materially similar to

the case before us and do not clearly

establish a right to certain funding for

(or certain administrative decisions

For example, Plaintiff cites us to cases such as Strickland v. Washington, 104 S.Ct. 2052 (1984), and Weidner v. Wainwright, 708 F.2d 614 (11th Cir. 1983). These cases are decisions about whether a criminal defendant received effective assistance of counsel: again lawyer acting as lawyer.

The cases in no way address the constitutional responsibilities of a public defender acting as a public administrator and making administrative decisions for the public defender’s office. affecting) investigation, expert

witnesses, and the like. See Lassiter, 28 F.3d at 1150-51; Edwards v. Gilbert, 867 F.2d 1271, 1277 (11th Cir. 1989).

Qualified immunity is the rule, not the

exception. Plaintiff has failed to convince

us that this case represents the

exceptional case where qualified immunity

should not apply. See, e.g., Harlow, 102 S.Ct. at 2738; Lassiter, 28 F.3d at 1149; Barts v.

Joyner, 865 F.2d 1187, 1190 (11th Cir. 1989).

AFFIRMED.