Tony E. Mathis v. City of Morrow, Georgia

Case: 14-12038 Date Filed: 02/09/2015 Page: 1 of 20

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 14-12038
Non-Argument Calendar
________________________

D.C. Docket No. 1:12-cv-03207-TCB

TIFFINY DONLEY,

Plaintiff,

TONY E. MATHIS,

Plaintiff-Appellant,

versus

CITY OF MORROW, GEORGIA,
ESSIE WEST,
Clerk of Court, City of Morrow, in her individual capacity,
JEFF BAKER,
City of Morrow Chief of Police, in his official and individual capacities,
SGT. DET. CURTIS TURNER,
Morrow City Police Officer, City of Morrow, in his individual capacity,
JEFF EADY,
Morrow City Manager, in his official and individual capacities,

Defendants-Appellees,

JERRY PATRICK, et al.,
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Defendants.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
________________________

(February 9, 2015)

Before HULL, WILSON and BLACK, Circuit Judges.

PER CURIAM:

Plaintiff Tony Mathis appeals pro se the district court’s orders denying him

leave to amend his complaint and granting summary judgment to the Defendant

City of Morrow, Georgia (“the City”), and the Defendant Curtis Turner, a City of

Morrow police officer, on Plaintiff Mathis’s 42 U.S.C. § 1983 claims for malicious

prosecution. After review, we affirm.

I. BACKGROUND

A. Municipal Court Criminal Proceedings

Plaintiff Mathis was one of six “organizers” of a limited liability corporation

called Cheerleaders South Sports Café LLC. The LLC owns a restaurant in the

City of Morrow called Cheerleaders Sports Café (“Cheerleaders”).

On June 20, 2010, Defendant Officer Turner of the Defendant City of

Morrow’s Police Department conducted a business inspection at Cheerleaders.

Plaintiff Mathis and Cheerleaders’ manager, Tiffiny Donley, were at the restaurant

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during Defendant Turner’s inspection. Defendant Turner arrested Mathis and

Donley and took them to the police station, where he cited them for 23 city-

ordinance violations. After spending almost three days in jail, Mathis and Donley

were released on June 22, 2010.

Arraignment originally was set for August 18, 2010, but was rescheduled

multiple times after Mathis and Donley appeared pro se, sought a “formal

arraignment,” and made oral motions to dismiss the charges. Eventually, a trial

was set for April 18, 2011, but on that date, the municipal court granted the City

solicitor’s request to place the case on the dead docket. On November 9, 2012, the

criminal case against Mathis and Donley was dismissed.

During the protracted municipal court litigation, two municipal court judges

recused. Throughout, Mathis and Donley maintained, among other things, that

City officials (1) knew Mathis and Donley were not the owners, licensees, or

lessees with respect to Cheerleaders and thus were not the proper parties to be

charged with the city-ordinance violations; and (2) refused to dismiss or delayed

dismissing the case against them in order to thwart a future claim of malicious

prosecution.

B. Plaintiffs’ First Four Complaints

While the municipal court criminal proceedings were ongoing, Mathis, pro

se, and Donley, represented by counsel, filed a civil Complaint and an Amended

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Complaint in state court. After the Defendants removed the action to federal

district court, the Plaintiffs filed a Second Amended Complaint on October 1,

2012. All three complaints alleged, inter alia, malicious prosecution claims under

both § 1983 and state law against the Defendant City and various officials,

including Defendant Officer Turner.

The district court stayed the Plaintiffs’ federal action pending resolution of

the municipal court proceedings. After the municipal charges were dismissed, the

district court reopened the § 1983 case on January 9, 2013. Pursuant to the district

court’s order, the Plaintiffs, both now represented by counsel Robert Kenner, Jr.,

filed a Third Amended Complaint, which is the dispositive complaint for purposes

of this appeal.

The Plaintiffs’ Third Amended Complaint did not allege a state law claim of

malicious prosecution. Instead, the Third Amended Complaint alleged: (1) a

§ 1983 claim for denial of the right to self-representation; (2) a § 1983 claim of

municipal liability for failure to implement proper procedures as to a criminal

defendant’s right to self-representation; (3) a § 1983 claim of malicious

prosecution; (4) a § 1983 claim of municipal liability for failure to train the

Morrow Police Department as to illegal prosecutions; and (5) a claim for attorney’s

fees pursuant to § 1988.

C. District Court’s Scheduling Order

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After the Defendants filed answers, the parties filed a Joint Preliminary

Planning Report and Discovery Plan (“the Plan”) on March 9, 2013. According to

the Plan, the Plaintiffs had notified the Defendant City that they intended to seek

leave to amend their Third Amended Complaint to, among other things, add a

state-law malicious prosecution claim. The Plan provided, however, that

amendments to the pleadings submitted later than thirty days after the Plan was

filed, i.e., after April 9, 2013, would not be accepted, unless otherwise permitted

by law. The district court entered a scheduling order accepting the Plan’s

deadlines and ordering that discovery would last eight months, thus ending on

November 8, 2013. The district court warned the parties that deadline extensions

were not likely to be granted.

The deadline for filing amended pleadings expired without the Plaintiffs’

filing a fourth amended complaint or asking for an extension of time. Meanwhile,

in a series of pretrial orders, the district court dismissed a number of claims and

defendants, such that the only remaining claims were: (1) the § 1983 malicious

prosecution claim against the Defendant City and the Defendant Turner in his

individual capacity; (2) the § 1983 failure-to-train claim against the Defendant

City; and (3) the § 1988 claim for attorney’s fees.

D. Mathis’s Pro Se Motion to Amend the Complaint

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On June 19, 2013, Plaintiff Mathis filed a “Motion for Substitution of

Counsel.” Mathis notified the district court that he had terminated Kenner as his

counsel, that he was a practicing attorney, and that he wished to proceed pro se. In

a response, counsel Kenner indicated without elaboration that the attorney-client

relationship had deteriorated, and he did not object to Mathis’s motion. Counsel

Kenner advised, however, that he continued to represent Plaintiff Donley. On July

9, 2013, the district court granted Plaintiff Mathis’s motion to terminate Kenner as

Mathis’s counsel.

On October 2, 2013, Plaintiff Mathis filed a pro se motion for leave to file an

amended complaint (“October motion”), pursuant to Federal Rule of Civil

Procedure 15(a)(2). Mathis attached his proposed Fourth Amended Complaint,

which alleged malicious prosecution claims under § 1983 and state law, and a

§ 1988 claim for attorney’s fees. The proposed Fourth Amended Complaint

included both Mathis and Donley as named plaintiffs and repeatedly referred to

Donley and Mathis together as “the Plaintiffs,” but was signed only by Mathis.

Mathis’s motion noted that the Defendants did not consent to his proposed

amendment.

E. District Court’s Denial of Leave to Amend

On October 3, 2013, the district court sua sponte denied Mathis’s motion for

leave to amend (“the October order”). The district court pointed out that Mathis

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had not indicated that Donley joined his motion, which was unlikely given that the

motion was not signed by Donley’s attorney, Kenner. The district court further

explained that “Donley must join any such motion and the complaint must be filed

on behalf of both Plaintiffs.”

F. Plaintiff Donley’s Motion to Sever and Settlement

On November 15, 2013, after the district court ordered the parties to enter

mediation to try to settle the case, counsel Kenner filed a motion to sever Donley’s

case from Mathis’s case. In an affidavit, counsel Kenner averred that he and

Mathis could not agree on trial strategy, including “how an Amended Complaint

should be drafted.” Mathis opposed severance, and in his own affidavit averred

that he, rather than Kenner, had performed most of the legal work for the case.

Mathis also attached an affidavit from Donley asking the district court to deny

Kenner’s motion to sever filed on her behalf. The district court denied the motion

to sever. On November 25, 2013, Donley, with Kenner still representing her,

settled Donley’s case.

G. Mathis’s Second Pro Se Motion to Amend Complaint

On December 1, 2013, almost eight months after the scheduling order’s

deadline for amending the pleadings, Mathis filed a second pro se motion for leave

to file an amended complaint, again seeking to allege a state-law malicious

prosecution claim (“December motion”). Mathis argued that he should be allowed

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to amend his complaint now that Donley had settled her claims. Mathis did not

attach a copy of his proposed amended complaint. 1

The Defendants opposed Mathis’s December motion for various reasons,

including that: (1) Mathis’s proposed amendment was untimely under the district

court’s scheduling order and he had not shown “good cause” to modify the

scheduling order, as required by Federal Rule of Civil 16(b)(4); (2) Defendants

would be prejudiced by a late amendment; and (3) Mathis had not attached a copy

of his proposed amended complaint to his motion.

In his reply, Plaintiff Mathis argued that he should be allowed to amend his

complaint under Rule 15(a), but did not address the Defendants’ Rule 16(b)(4)

argument or explain how he had shown “good cause” to excuse him from the

scheduling order’s April 9, 2013 deadline to amend the pleadings. To his reply

brief, Mathis attached a copy of his proposed Fourth Amended Complaint.

On January 13, 2014, the district court denied Mathis’s December motion.

(“January order”). The district court concluded that: (1) Mathis had not shown

good cause under Rule 16(b)(4); (2) Mathis’s brief had not mentioned Rule

16(b)(4); (3) Mathis had not diligently pursued the fourth amendment; (4) Mathis’s

motion had failed to comply with the procedural requirements for amending his

1
Mathis later sought to amend his December motion, wishing to add a § 1983 false arrest
claim to his proposed Fourth Amended Complaint as well. The district court denied this request.
On appeal, Mathis does not challenge that ruling on his false arrest claim, and we do not address
it.
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complaint; and Mathis’s reply brief had attached a proposed Fourth Amended

Complaint that contained 15 additional pages and 32 additional numbered

paragraphs (compared to Mathis’s proposed Fourth Amended Complaint attached

to his October motion), of which Defendants appeared to have had no notice.

H. Mathis’s 2014 Motion to Alter or Amend the Judgment

On February 2, 2014, Mathis filed a motion to alter or amend the judgment,

citing Federal Rules of Civil Procedure 59(e) and 60(b). Mathis asked the district

court to amend the “judgment entered on October 3rd, 2013, or in the alternative

January 13th, 2014 denying Plaintiff’s inclusion of the state claim for malicious

prosecution.”

Mathis claimed that he had been diligent in his attempts to amend his

complaint but that his former counsel Kenner refused to amend the complaint.

Mathis submitted his affidavit and e-mail exchanges between Mathis and Kenner

dating from April 30, 2013 through July 22, 2013.

The Defendants opposed Mathis’s motion and submitted a deposition of

Kenner. Kenner testified that he dropped the state-law malicious prosecution

claim from the Third Amended Complaint because the Defendant City had not yet

responded to the Plaintiffs’ ante litem notice. As a result, in January 2012, while

preparing the Plan, Kenner and Mathis agreed they would amend the complaint to

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add the state-law malicious prosecution claim after discovery expired and then

inserted language in the Plan that they believed would protect their ability do to so.

In reply, Mathis submitted his and Donley’s affidavits disputing Kenner.

According to Mathis and Donley, Mathis did not agree to wait until after discovery

expired to amend the complaint and repeatedly asked Kenner to amend the

complaint in April 2012, before the scheduling order deadline, but was ignored.

The district court denied Mathis’s “motion for reconsideration.” The district

court concluded that: (1) Rule 59(e) did not apply because neither the October

order nor the January order was a “judgment”; (2) Mathis had not identified which

subsection of Rule 60(b) entitled him to relief or cited any authority to support his

argument; and (3) Mathis possessed the information about his dispute with Kenner

prior to his October and December motions, but failed to explain why he did not

include it with these motions or why he did not address Rule 16(b)(4)’s “good

cause” requirement in those motions.

I. Summary Judgment

After discovery expired, the Defendants moved for summary judgment on

Mathis’s remaining claims. The district court granted the Defendants’ motions.

As to the § 1983 malicious prosecution claim, the district court concluded that

there was no seizure under the Fourth Amendment as a matter of law. Specifically,

Mathis was arrested without a warrant and then released, and the subsequent

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municipal court proceedings against Mathis did not begin until his arraignment.

Additionally, Mathis conceded that after his arraignment he was not subject to

restrictions in his movement, was not required to report for a pretrial program or

drug testing, and did not have to wear an ankle monitor.

As to the § 1983 failure-to-train claim, the district court concluded that

because Mathis’s underlying malicious-prosecution claim was meritless, this claim

was also meritless. Alternatively, the district court concluded that Mathis had not

shown that the Defendant City was deliberately indifferent to his constitutional

rights because he had not “identified a constitutionally deficient training program”

or shown that City officials were on notice of pattern of constitutional violations by

untrained City employees.

Finally, because the Defendants were entitled to summary judgment on

Mathis’s § 1983 claims, the district court determined that Mathis was not entitled

to attorney’s fees under § 1988. The Clerk of the Court entered a judgment

dismissing Plaintiff Mathis’s action, and ordered that the Defendants recover their

costs.

The Defendant City then moved to recover attorney’s fees, and Defendant

Turner moved for sanctions under Federal Rule of Civil Procedure 11(b). The

district court denied both motions.

II. AMENDMENTS TO A COMPLAINT

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A. Federal Rules 15(a) and 16(b)

Under Rule 15(a), the plaintiff may amend his complaint once as a matter of

course within 21 days of serving it or within 21 days after the defendant’s service

of either the answer or a motion under Rule 12(b), whichever is earlier. Fed. R.

Civ. P. 15(a)(1). After this time has passed, a plaintiff may amend his complaint

“only with the opposing party’s written consent or the court’s leave.” Fed. R. Civ.

P. 15(a)(2). Rule 15(a)(2) instructs courts to “freely give leave when justice so

requires.” Id. That said, courts may deny a motion for leave to amend on

numerous grounds, including undue delay, undue prejudice to the defendants, and

futility of amendment. Maynard v. Bd. of Regents, 342 F.3d 1281, 1287 (11th Cir.

2003).

Furthermore, once the district court limits the time to amend pleadings in a

scheduling order, the schedule may only be modified for “good cause” and with

the district court’s consent. Fed. R. Civ. P. 16(b)(4). Thus, a plaintiff seeking

leave to amend his complaint after the scheduling-order deadline must show “good

cause” under Rule 16(b). S. Grouts & Mortars, Inc. v. 3M Co., 575 F.3d 1235,

1241 (11th Cir. 2009). Lack of diligence in pursuing a claim is sufficient to show

lack of good cause. Id. A plaintiff lacks diligence when, prior to the scheduling

order deadline, he either (1) had full knowledge of the information with which he

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later sought to amend his complaint, or (2) failed to seek the information he needed

to determine whether to amend the complaint. Id. at 1241 n.3.2

B. Mathis’s Pro Se Motions

Here, the district court did not abuse its discretion in denying either of

Mathis’s pro se motions for leave to amend his complaint. With respect to his

October motion, Mathis’s proposed Fourth Amended Complaint identified Donley

in its caption as a named plaintiff, included Donley as one of the parties, made

factual allegations involving her, and referred to the “plaintiffs” in its § 1983 claim

for malicious prosecution. However, neither Donley nor her attorney of record

signed Mathis’s October motion or his proposed Fourth Amended Complaint.

Mathis’s proposed amendments affected Donley’s claims against the City and

Turner, and, as Mathis was not representing Donley in the action, Mathis could not

amend her complaint without her consent.

Contrary to Mathis’s argument, the district court did not deny his October

motion because “any amendment to the complaint by Appellant must include the

co-plaintiff’s attorney’s joinder.” Rather, the district court denied the October

motion because it ostensibly sought to amend the complaint on behalf of both

2
We review a district court’s denial of a motion for leave to amend a complaint for abuse
of discretion. Covenant Christian Ministries, Inc. v. City of Marietta, 654 F.3d 1231, 1239 (11th
Cir. 2011).
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Plaintiffs, but without the consent of either Donley or her counsel. This Mathis

could not do.

In any event, with respect to both the October and December motions,

Mathis failed to show good cause for excusing him from the scheduling order’s

deadline to amend the pleadings. Mathis’s complaint was filed in August 2012,

and by January 9, 2013, his complaint was already amended three times, resulting

in the Third Amended Complaint. Under the scheduling order, Mathis had until

April 9, 2013, thirty days after the Plan was filed, to seek leave to amend his

complaint. But, Mathis did not move to amend his complaint until almost six

months after the deadline, on October 2, 2013, and then a second time on

December 1, 2013, almost eight months after that deadline. Therefore, Mathis was

required under Rule 16(b) to show “good cause” for each of his motions.

Neither of Mathis’s motions demonstrated good cause, however. Indeed, as

the district court noted, Mathis’s December motion failed to even mention Rule

16(b). Further, Mathis could not show good cause because he was not diligent in

pursuing his state-law malicious prosecution claim. See S. Grouts & Mortars, 575

F.3d at 1241 n.3. Mathis had included the state-law claim in prior complaints,

including his Second Amended Complaint, but omitted it from his Third Amended

Complaint. He thus knew of the state-law claim and the facts supporting it well

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before the April 9, 2013 deadline,3 but waited until six months after the deadline to

try to add that state-law claim. Mathis’s arguments—that he did not act in bad

faith and that the Defendants would not have been prejudiced—ignore Rule 16(b)

and do not show diligence or good cause for granting leave to amend many months

after the deadline.

III. DENIAL OF MATHIS’S RULE 60(b) MOTION

Under Rule 60(b), the district court may relieve a party of a final judgment

or order for: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly

discovered evidence that could not previously have been discovered with

reasonable diligence; (3) fraud, misrepresentation, or misconduct by an opposing

party; (4) a void judgment; (5) a judgment that has been satisfied, released or

discharged, that is based on an earlier judgment that has been reversed or vacated,

or that it would no longer be equitable to apply prospectively; or (6) any other

reason that justifies relief. Fed. R. Civ. P. 60(b).

Mathis’s Rule 60(b) motion did not identify under which grounds he sought

relief. On appeal, Mathis, however, contends he sought relief under the catch-all

provision of Rule 60(b)(6). Relief under Rule 60(b)(6), “for any other reason,” is

3
Mathis has never argued, either in the district court or this Court, that he did not have all
of the information he needed to bring his state-law malicious prosecution claim until after the
scheduling order deadline had passed. We note, in any case, that this assertion alone would not
have been enough to entitle Mathis to relief from the scheduling order under Rule 16(b) because
the party seeking to amend must also show that he has been diligent in pursuing whatever
information he needed to amend the complaint. See S. Grouts & Mortars, 575 F.3d at 1241 n.3.
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an extraordinary remedy that may only be invoked upon a showing of exceptional

circumstances. Crapp v. City of Miami Beach, 242 F.3d 1017, 1020 (11th Cir.

2001).

The appellant’s burden on appeal from the denial of a Rule 60(b) motion is a

heavy one. Cano v. Baker, 435 F.3d 1337, 1342 (11th Cir. 2006). It is not enough

that a grant of the Rule 60(b) motion might have been permissible or warranted;

rather, the appellant must show a justification so compelling that the district court

was required to vacate its order. Id. When a party attempts to introduce new

evidence in a motion for reconsideration, the district court should not grant the

motion absent a showing that the evidence was previously unavailable or newly

discovered. See Mays v. United States Postal Serv., 122 F.3d 43, 46 (11th Cir.

1997) (involving Rule 59(e) motion); Willard v. Fairfield S. Co., 472 F.3d 817,

821 (11th Cir. 2006) (involving Rule 60(b) motion).

The district court did not abuse its discretion in denying Mathis’s Rule 60(b)

motion filed in February 2014. 4 Mathis’s 2014 motion blamed his former counsel

Kenner for the failure to file a motion to amend before the April 9, 2013 deadline

and contended that Mathis tried repeatedly to get Kenner to file such a motion in

4
Mathis does not challenge the district court’s denial of his motion for reconsideration to
the extent it was brought under Rule 59(e). Furthermore, although a heading in Mathis’s brief
makes a passing reference to the district court’s January order, the body of the brief argues only
that the district court erred in refusing to reconsider its October order denying Mathis’s October
motion. Thus, these issues are abandoned. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d
678, 681-82 (11th Cir. 2014).
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April, but Kenner ignored him. In support, Mathis’s 2014 motion quoted from e-

mail communications between Mathis and Kenner from April to July 2013. Mathis

also submitted his affidavit describing his deteriorating relationship with Kenner

and the disagreement about amending the complaint. However, Mathis’s Rule

60(b) motion did not explain why he had failed to advance this argument in his

October motion and submit the information at that time.

The record demonstrates that Mathis was fully aware of his dispute with

Kenner and possessed the email exchanges between them when he filed his

October 2013 motion for leave to amend. Given that the information relied upon

was neither previously unavailable nor newly discovered, the district court did not

abuse its discretion by denying the Rule 60(b) motion.

In any event, even considering the new information in Mathis’s Rule 60(b)

motion, Mathis still failed to show exceptional circumstances justifying relief.

Mathis, a practicing attorney, admits he knew in April 2013 that he needed to

amend his complaint to add the state-law malicious prosecution claim. Yet, he

waited at least another six weeks, until June 19, 2013, to terminate Kenner and file

his motion to proceed pro se. Then, Mathis waited another three months, until

October 2, 2013, to file his own pro se motion to amend seeking to add the state-

law malicious prosecution claim. Under these factual circumstances, we cannot

say Mathis was diligent in pursuing amendment to add his state-law malicious

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prosecution claim. For these reasons, Mathis’s Rule 60(b) motion did not show a

justification so compelling that the district court was required to vacate its October

order denying leave to amend.

IV. SUMMARY JUDGMENT ON § 1983 MALICIOUS PROSECUTION
CLAIM

On appeal, Mathis challenges the district court’s grant of summary judgment

only as to his § 1983 claim of malicious prosecution. 5 Mathis contends that the

district court erred in concluding that the record established as a matter of law that

there was no “seizure” of Mathis within the meaning of the Fourth Amendment. 6

To establish a malicious prosecution claim under § 1983, “a plaintiff must

prove (1) the elements of the common law tort of malicious prosecution, and (2)

violation of [his] Fourth Amendment right to be free from unreasonable seizures.”

Kingsland v. City of Miami, 382 F.3d 1220, 1234 (11th Cir. 2004). Thus, in

addition to the common law elements, a § 1983 plaintiff must prove that he was

“seized in relation to the prosecution, in violation of [his] constitutional rights.”

Id. at 1235.

As this Court expressed in Kingsland v. City of Miami, “[t]he plaintiff’s

arrest cannot serve as the predicate deprivation of liberty because it occurred prior

5
Because on appeal Mathis does not challenge the grant of summary judgment on his
§ 1983 failure-to-train claim or his § 1988 attorney’s fees claim, those claims are abandoned.
6
We review a district court’s grant of summary judgment de novo, applying the same
legal standards used by the district court. Kingsland v. City of Miami, 382 F.3d 1220, 1225
(11th Cir. 2004).
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to the time of arraignment, and was not one that arose from malicious prosecution

as opposed to false arrest.” Id. (quotation marks omitted). For purposes of a

malicious prosecution claim when there is a warrantless arrest, “the judicial

proceeding does not begin until the party is arraigned or indicted.” Id. Further, the

normal conditions of pretrial release, such as bond and a summons to appear, do

not constitute a seizure, “barring some significant, ongoing deprivation of liberty,

such as a restriction on the defendant’s right to travel interstate.” Id. at 1236

(rejecting the “continuing seizure” theory where, one day after her warrantless

arrest for DUI, the plaintiff was released on a $1,000 bond, then arraigned, and,

during the course of prosecution, travelled twice from New Jersey to Florida to

appear in court).

We agree with the district court that, under our binding precedent in

Kingsland, Mathis did not suffer a Fourth Amendment “seizure” after the judicial

proceedings began in the municipal court prosecution. Mathis was arrested

without a warrant, but this case is not a false arrest case. This case is a malicious

prosecution case, and Mathis’s warrantless arrest cannot serve as the predicate

Fourth Amendment seizure for purposes of his § 1983 malicious prosecution

claim. See id. at 1235. Moreover, the conditions of his pretrial release did not

constitute a seizure either, given that Mathis was released on signature bond, then

arraigned, and travelled from Indiana to Georgia to attend hearings during the

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municipal court proceedings. See id. at 1236. Under these undisputed facts, the

municipal court prosecution did not subject Mathis to any significant deprivation

of liberty, and thus he was not seized under the Fourth Amendment during the

municipal court proceedings.

Mathis argues that being forced to appear at his arraignment at the Morrow

City Hall was a seizure under the Fourth Amendment. Kingsland, however,

forecloses this argument. In Kingsland, the plaintiff also appeared for arraignment,

and this Court concluded that such an appearance in a court did not subject the

plaintiff to a Fourth Amendment seizure for purposes of a malicious prosecution

claim. Id. at 1225-26, 1236.

Accordingly, Mathis has not shown any reversible error in the district

court’s grant of summary judgment to the Defendants on Mathis’s § 1983

malicious prosecution claim. 7

AFFIRMED.

7
Mathis also contends that his arraignment argument “is not of the frivolous nature
worthy of paying the Appellee attorney fees.” The district court, however, did not order Mathis
to pay attorney’s fees, and thus we lack jurisdiction to consider the issue. See Zinni v. ER
Solutions, Inc., 692 F.3d 1162, 1166 (11th Cir. 2012). To the extent Mathis challenges the
district court’s award of costs, the City and Turner were the prevailing parties, and Mathis has
not rebutted the strong presumption under Federal Rule of Civil Procedure 54(d) that the
prevailing party will be awarded costs. See Mathews v. Crosby, 480 F.3d 1265, 1276 (11th Cir.
2007); Fed. R. Civ. P. 54(d)(1).
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