Case: 13-14811 Date Filed: 07/22/2014 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-14811
Non-Argument Calendar
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D.C. Docket No. 1:13-cv-20358-RSR
ROBERT CONYERS,
Plaintiff-Appellant,
versus
UNITED STATES FISH AND WILDLIFE SERVICE,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 22, 2014)
Before WILSON, HILL, and FAY, Circuit Judges.
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PER CURIAM:
Robert Conyers brought this action for malicious prosecution against the
United States under the Federal Tort Claims Act. The district court granted the
United States’ motion to dismiss for failure to state a claim and dismissed Conyers’
complaint with prejudice. Conyers brought this appeal.
I.
Robert Conyers is a licensed Miami animal broker who was hired to
facilitate the transfer of primates from Guyana to Thailand. The animals arrived in
Miami and were subsequently shipped to China through Los Angeles. At that
time, an inspection revealed that only nine of the twenty-five primates had
survived, the rest having died of dehydration and exposure to extreme
temperatures. The United States Fish and Wildlife Service (the “FWS”)
investigated the incident and declined to prosecute, but notified the Los Angeles
City prosecutor’s office of the matter. The City Attorney’s Office subsequently
filed a ten-count criminal complaint against Conyers, alleging various charges of
animal cruelty under the California Penal code. Conyers was acquitted by a jury
on all ten counts. Thereafter, he filed this action against the United States 1
II.
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Initially, Conyers named the Fish and Wildlife Service as the defendant, but later he
amended his complaint to name the United States as the correct defendant.
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California law governs the defendant’s liability in this case because the
alleged misconduct occurred in California. Under California law, in order to
prevail on a claim for malicious prosecution, Conyers must be able to show that his
prior prosecution was commenced by or at the direction of the defendant, was
brought without probable cause and was initiated with malice. Siebel v.
Mittlesteadt, 41 Cal. 4th 735, 740 (2007). The district court held that Conyers’
complaint did not adequately allege these elements, thereby failing to meet the
Iqbal requirement that the court be able to “draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). We agree.
First, the complaint alleges only that the defendant’s investigation of the
death of the animals “led to a criminal action being commenced against
Conyers . . . .” Nowhere does the complaint allege that any employee or agent of
defendant actually directed or caused criminal charges to be filed. The lack of
such an allegation does not permit the reasonable inference that the defendant is
liable for the alleged misconduct.
Conyers argues that California would not have prosecuted him without the
witnesses and documents that FWS provided it, but, even if this were true, it does
not amount to an allegation that the United States actually caused him to be
prosecuted. It is equally plausible that the City Attorney reviewed the evidence
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and made an independent judgment whether to prosecute. Therefore, the
complaint does not sufficiently allege that the United States caused Conyers to be
prosecuted.
This failing would be sufficient to require that the complaint be dismissed.
Conyers, however, attached several exhibits to his response to the motion to
dismiss that show that the City Prosecutor approached FWS and other sources to
obtain the information upon which he made the decision to prosecute. These
documents make clear that the FWS was not involved in the City’s decision to
prosecute Conyers.
The district court noted that it was not required to ignore these filings in
determining whether amendment of the complaint would be futile. For this reason,
the district court dismissed the complaint with prejudice. We agree. There is no
requirement to permit a futile amendment to a plaintiff’s complaint. See Cockrell
v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007).
Although the district court’s judgment of dismissal may be affirmed on this
ground alone, we note that the district court also concluded that the complaint fails
to make the required allegation that the United States acted with malice in its
conduct in this case. Conyers’ contention that the filing of charges without
probable cause is sufficient to establish malice is incorrect under California law.
See Silas v. Arden, 152 Cal. Rptr. 255, 267 (Ct. App. 2012). There must be
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sufficient allegations of either actual hostility or ill will on the part of the
defendant, or allegation of an intent to deliberately misuse the legal process for
personal gain to support a claim for malicious prosecution. Id. Conyers’
complaint contains no such allegations. Therefore, the complaint was correctly
dismissed for this failing as well.
III.
For the foregoing reasons, the judgment of dismissal entered by the district
court is due to be
AFFIRMED.
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