Case: 15-15654 Date Filed: 08/03/2016 Page: 1 of 13
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-15654
Non-Argument Calendar
________________________
D.C. Docket No. 3:15-cv-00333-WHA-TFM
LARRE ANTHONY HOLLAND,
Plaintiff–Appellant,
versus
CITY OF AUBURN, ALABAMA,
an Alabama Municipal Corporation,
PAUL REGISTER,
an individual Alabama resident, individually and/or jointly,
GEORGE MICHAEL CREIGHTON, II,
an individual Alabama Resident, individually and/or jointly,
Defendants–Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(August 3, 2016)
Case: 15-15654 Date Filed: 08/03/2016 Page: 2 of 13
Before MARCUS, MARTIN, and JULIE CARNES, Circuit Judges.
PER CURIAM:
In this § 1983 action, 1 Plaintiff–Appellant Larre Holland (“Plaintiff”) sued
Defendants–Appellees: George Creighton, II (“Detective Creighton”); the City of
Auburn, Alabama (“the City”); and the Chief of the City’s Police Department,
Chief Paul Register (“Chief Register”), alleging federal claims for malicious
prosecution, false arrest, false imprisonment, unlawful seizure, and additional state
law claims. Plaintiff also alleged that the City and Chief Register failed to
properly screen, hire, and train Detective Creighton. The district court granted
Defendants’ motion to dismiss. Plaintiff appeals, contending that the district court
erred in dismissing his claims against Detective Creighton and the City. 2 After
careful review, we affirm.
I. BACKGROUND
A. Factual Background
In March of 2014, officers from the State of Georgia Clayton County
Sheriff’s Office and a United States Marshall arrested Plaintiff at his workplace in
connection with a robbery. When the officers arrested Plaintiff, they searched him
1
42 U.S.C. § 1983 provides a civil rights cause of action against an official who, acting under
color of state law, deprives an individual of a federal right. 42 U.S.C. § 1983 (2012).
2
Plaintiff abandoned his claims against Chief Register on appeal by failing to address the
dismissal of those claims. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th
Cir. 2004) (“[A] legal claim or argument that has not been briefed before the court is deemed
abandoned and its merits will not be addressed.”).
2
Case: 15-15654 Date Filed: 08/03/2016 Page: 3 of 13
and his vehicle. The next morning, a Clayton County magistrate judge denied
Plaintiff bond. Plaintiff stayed at the Clayton County Jail until he was moved to
Auburn, Alabama.
Plaintiff was charged with the robbery of Kevin McCarley (“Mr.
McCarley”). Mr. McCarley is a taxi driver who was robbed by one of his
passengers. Mr. McCarley gave the police the cell phone number from which the
robber allegedly had called to order a taxi. Detective Creighton began
investigating the robbery and found an association between the address connected
to the cell phone number and Plaintiff. At that point Detective Creighton prepared
a photographic line-up with a picture of Plaintiff. Mr. McCarley identified
Plaintiff as the robber. According to the Amended Complaint, Detective Creighton
then prepared and presented the warrant affidavit to a magistrate judge, obtained an
arrest warrant, and initiated Plaintiff’s arrest. Defendants provided a copy of the
warrant affidavit in their Memorandum in Support of Motion to Dismiss First
Amended Complaint. 3
After Plaintiff was arrested, Detective Creighton met with him. Detective
Creighton was allegedly rude and cursed at Plaintiff. Plaintiff asked Detective
3
Ordinarily, a district court may not consider materials outside of the complaint without
converting the motion to dismiss into a motion for summary judgment. However, this Court has
held that “the district court may consider an extrinsic document if it is (1) central to the
plaintiff’s claim, and (2) its authenticity is not challenged.” SFM Holdings, Ltd. v. Banc of Am.
Sec., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010). The warrant affidavit is central to Plaintiff’s
Amended Complaint, and Plaintiff does not challenge the affidavit’s authenticity.
3
Case: 15-15654 Date Filed: 08/03/2016 Page: 4 of 13
Creighton to “ping” Plaintiff’s cell phone data to verify that he had not been in
Auburn during the robbery and told Detective Creighton that he had been shopping
at a Kroger in Union City, Georgia, at the time of the robbery. After this meeting,
video surveillance from Kroger was retrieved that verified Plaintiff’s whereabouts.
The robbery charge was then dismissed.
B. Procedural History
In May 2015, Plaintiff filed a complaint under 42 U.S.C. § 1983. Plaintiff
later filed an Amended Complaint naming Detective Creighton, Chief Register,
and the City of Auburn as defendants. The Amended Complaint alleged the
following claims: (1) unlawful seizure against Detective Creighton; (2) false arrest
against Detective Creighton; (3) false imprisonment against Detective Creighton;
(4) malicious prosecution against Detective Creighton; (5) failure to properly
screen and hire against Chief Register and the City; (6) failure to properly train
against Chief Register and the City; (7) failure to supervise against Chief Register;
(8) false arrest and false imprisonment under Georgia law against Detective
Creighton; (9) malicious prosecution under Georgia law against Detective
Creighton; (10) negligence under Georgia law against Chief Register and the City;
(11) intentional infliction of emotional distress under Georgia law against
Detective Creighton; (12) false arrest and false imprisonment under Alabama law
against Detective Creighton; (13) negligence under Alabama law against Chief
4
Case: 15-15654 Date Filed: 08/03/2016 Page: 5 of 13
Register and the City; (14) intentional infliction of emotional distress under
Alabama law as to Detective Creighton; (15) punitive damages against all
defendants; (16) damages against all defendants; (17) attorney’s fees against all
defendants. Additionally, Plaintiff attached illegal search claims to his unlawful
seizure claim, which he raises on appeal. 4
The district court granted Defendants’ motion to dismiss. Regarding the
claims against Detective Creighton, the court found that Plaintiff’s claims for
unlawful seizure, false arrest, and false imprisonment failed because Plaintiff was
arrested pursuant to a warrant. Plaintiff’s malicious prosecution claim was
dismissed because probable cause existed for the arrest, Plaintiff failed to identify
any omission made by Detective Creighton in applying for the warrant that would
have removed probable cause, and Detective Creighton was entitled to qualified
immunity. The district court dismissed the illegal search claim because it was
improperly pled, there was probable cause for the arrest warrant, and Plaintiff
provided no facts that connected Detective Creighton to the search of the vehicle.
Regarding the claims against the City and Chief Register, the district court
found that there was no liability because there was no underlying constitutional
violation. Additionally, the court noted that Plaintiff failed to state a basis for
4
On appeal, Plaintiff raises only the claims for malicious prosecution, illegal search, and
municipal liability. See Access Now, 385 F.3d at 1330 (“[A] legal claim or argument that has not
been briefed before the court is deemed abandoned and its merits will not be addressed.”).
5
Case: 15-15654 Date Filed: 08/03/2016 Page: 6 of 13
municipal or supervisory liability because he failed to assert a specific policy or
custom that led to the alleged violations. The district court then dismissed the
remaining state law claims without prejudice to be filed in state court. Plaintiff
now appeals.
II. DISCUSSION
On appeal, Plaintiff contends that the district court erred by (1) holding that
Detective Creighton had both arguable probable cause and probable cause to arrest
Plaintiff and to search Plaintiff and Plaintiff’s vehicle and (2) applying a
heightened pleading standard to Plaintiff’s municipal liability claims.
A. Standard of Review
We review the district court’s dismissal of a complaint for failure to state a
claim de novo. Harris v. Ivax Corp., 182 F.3d 799, 802 (11th Cir. 1999). In so
doing, we accept the allegations in the complaint as true and construe them in the
light most favorable to the plaintiff. Fin. Sec. Assurance, Inc. v. Stephens, Inc.,
500 F.3d 1276, 1282 (11th Cir. 2007). In order to survive a motion to dismiss, the
complaint must contain facts sufficient to support a plausible claim to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
6
Case: 15-15654 Date Filed: 08/03/2016 Page: 7 of 13
B. Claims Against Detective Creighton
1. Malicious Prosecution Claim
Plaintiff challenges the district court’s dismissal of his malicious prosecution
claim by asserting that the district court erred in finding that there was probable
cause or arguable probable cause for his arrest. We find that the district court
properly dismissed Plaintiff’s malicious prosecution claim because Plaintiff failed
to sufficiently plead that the warrant affidavit presented to the magistrate judge by
Detective Creighton lacked probable cause. 5
Malicious prosecution is a Fourth Amendment violation and a “viable
constitutional tort cognizable under § 1983.” Wood v. Kesler, 323 F.3d 872, 881
(11th Cir. 2003). In order to establish a malicious prosecution claim, Plaintiff must
prove two elements: (1) he “must prove a violation of his Fourth Amendment right
to be free from unreasonable seizures” and (2) he must prove “the elements of the
common law tort of malicious prosecution.” Id. A malicious prosecution claim
under § 1983 encompasses both state and federal law, but the elements are
“ultimately controlled by federal law.” Id. at 882. The elements for malicious
prosecution include: “(1) a criminal prosecution instituted or continued by the
present defendant; (2) with malice and without probable cause; (3) that terminated
in the plaintiff accused’s favor; and (4) caused damage to the plaintiff accused.”
5
Because we find that there was probable cause for Plaintiff’s arrest, we need not discuss the
arguable probable cause standard that applies in a qualified immunity defense.
7
Case: 15-15654 Date Filed: 08/03/2016 Page: 8 of 13
Id.; see Grider v. City of Auburn, 618 F.3d 1240, 1256 (11th Cir. 2010) (noting that
Alabama law for malicious prosecution is the same except that it requires only a
“judicial proceeding” not a “criminal prosecution”).
The elements of malicious prosecution are listed in the conjunctive;
therefore, if Plaintiff is unable to prove any of the four elements, his claim
necessarily fails. We focus on the second element—the existence of probable
cause—and conclude that based on the facts pleaded in Plaintiff’s Amended
Complaint, no reasonable jury could find that Detective Creighton proceeded
without probable cause. “Probable cause requires more than mere suspicion, but
does not require convincing proof.” Bailey v. Bd. of Cty. Comm’r of Alachua Cty.,
956 F.2d 1112, 1120 (11th Cir. 1992), cert. denied, 506 U.S. 832 (1992). “A law
enforcement officer has probable cause to arrest a suspect if the facts and
circumstances within the officer’s knowledge, of which he or she has reasonably
trustworthy information, would cause a prudent person to believe, under the
circumstances shown, that the suspect has committed . . . an offense.” Von Stein v.
Brescher, 904 F.2d 572, 578 (11th Cir. 1990). The probable cause standard is
objective, requiring only “that an arrest be objectively reasonable under the totality
of the circumstances.” Bailey, 956 F.2d at 1119.
In determining whether or not probable cause existed, great deference is due
to the magistrate’s finding of probable cause. United States v. Leon, 468 U.S. 897,
8
Case: 15-15654 Date Filed: 08/03/2016 Page: 9 of 13
914 (1984). However, there are a few exceptions to this rule of deference.
Because a magistrate independently decides whether the warrant affidavit provides
probable cause, deliberate or reckless false statements in the affidavit and/or
omissions in the affidavit remove the presumption of validity accompanying the
warrant. Franks v. Delaware, 438 U.S. 154, 171 (1978); Madiwale v. Savaiko, 117
F.3d 1321, 1326 (11th Cir. 1997) (applying Franks to omissions as well as
deliberate falsehoods).
Plaintiff alleges that there was no probable cause for his arrest because
Detective Creighton omitted material information from the warrant affidavit. An
omission renders a warrant void only if the officer intentionally or recklessly
omitted information and probable cause is no longer present without that
information. Madiwale, 117 F.3d at 1327. In other words, even intentional or
reckless omissions will not invalidate a warrant if “there remains sufficient content
in the warrant affidavit to support a finding of probable cause.” Id. at 1326–27.
Plaintiff asserts that the warrant for his arrest was invalid because Detective
Creighton deliberately omitted the actual association between Plaintiff and the
address connected to the cell phone used in the robbery.
In order to move beyond a motion to dismiss, Plaintiff must provide well-
pleaded factual allegations that show (1) Detective Creighton intentionally or
recklessly made the omission and (2) the omission was “necessary to the finding of
9
Case: 15-15654 Date Filed: 08/03/2016 Page: 10 of 13
probable cause.” United States v. Martin, 615 F.2d 318, 328 (5th Cir. 1980)6
(quoting Franks, 438 U.S. at 156–57). Plaintiff did not meet this burden. He
alleges that the omission was “deliberately” made by Detective Creighton with a
“reckless disregard of the law and of the legal rights of Plaintiff.” However,
Plaintiff has never stated the omission.7 By failing to provide a clear statement
conveying the actual association between him and the relevant address, Plaintiff
failed to state grounds for which this Court could find that the warrant affidavit
contained a material omission that would render the warrant void.
Even assuming that Plaintiff could show a weak association between him
and the relevant address, Detective Creighton would still have probable cause to
present the warrant affidavit to the judge and initiate Plaintiff’s arrest. The warrant
affidavit states that the victim gave the police the cell phone number, which the
police traced back to Stephanie Young of Fairburn, Georgia. The affidavit then
states that “[a] black male associated with Young’s address was identified as
[Plaintiff],” that Plaintiff “matched the physical description given by [the cab
6
All cases from the former Fifth Circuit handed down by the close of business on September 30,
1981, are binding on the Eleventh Circuit. Madiwale, 117 F.3d at 1327 n.6.
7
Plaintiff never denied an association with the relevant address. Instead, he hinted that the
association was a distant one through inconsistent statements in various pleadings. (“If the Judge
knew that Plaintiff was associated with the address twenty years ago because he was a victim of
theft . . .”); (“If this court would insert into the warrant affidavit that Appellant was a victim of
child molestation at the address associated with the address when he was 10 years old . . .”). To
this point, he has never provided the actual association.
10
Case: 15-15654 Date Filed: 08/03/2016 Page: 11 of 13
driver],” and that the victim positively identified Plaintiff as the robber in a
photographic line-up. None of these underlying facts has been disputed by
Plaintiff. “Generally, an officer is entitled to rely on a victim’s criminal complaint
as support for probable cause.” Rankin v. Evans, 133 F.3d 1425, 1441 (11th Cir.
1998); see also United States v. Bell, 457 F.2d 1231, 1238 (5th Cir. 1972)
(discussing the importance of victim statements by noting that the information
provided by victim eyewitnesses and identified bystanders do not require
supporting affidavits attesting to the reliability of the information). Detective
Creighton relied on the victim’s statements and arrested Plaintiff after he had
sufficient evidence to support a finding of probable cause.
2. Illegal Search Claims
To the extent that Plaintiff raises his illegal search claims on appeal by
asserting that Detective Creighton lacked probable cause for the searches, we find
that both claims were properly dismissed by the district court. As an initial matter,
Plaintiff improperly pled his illegal search claims by adding them on to Count 1 of
the Amended Complaint. See Cesnik v. Edgewood Baptist Church, 88 F.3d 902,
905 (11th Cir. 1996) (“[S]eparate, discrete causes of action should be plead [sic] in
separate counts.”). Plaintiff then failed to comply with the district court’s order
granting leave to file an amended complaint in order to “separate out his federal
11
Case: 15-15654 Date Filed: 08/03/2016 Page: 12 of 13
claims into separate counts by legal theory.” Furthermore, both claims fail on their
merits.
Plaintiff’s illegal search claim as to his person fails because Detective
Creighton had probable cause to arrest Plaintiff. See generally United States v.
Robinson, 414 U.S. 218 (1973) (discussing and affirming law enforcement
officers’ authority to search the person incident to a lawful arrest). Plaintiff’s
illegal search claim as to his vehicle also fails. In order to establish liability,
Plaintiff “must show ‘proof of an affirmative causal connection’ between a
government actor’s acts or omissions and the alleged constitutional violation.”
Brown v. City of Huntsville, 608 F.3d 724, 737 (11th Cir. 2010) (quoting Zatler v.
Wainwright, 802 F.2d 397, 401 (11th Cir. 1986)). Plaintiff does not allege that
Detective Creighton was involved with the vehicular search or that he did anything
to lead the Georgia police officers and the U.S. Marshall to initiate that search.
Because Plaintiff has failed to provide any sort of factual connection between
Detective Creighton’s actions and the search of his car, the district court properly
dismissed the claim.
C. Claims Against the City
Plaintiff asserts that the district court erred in dismissing his municipal
liability claims because the district court applied a heightened pleading standard.
We find that the district court appropriately and correctly applied the normal
12
Case: 15-15654 Date Filed: 08/03/2016 Page: 13 of 13
pleading standard set forth by the Supreme Court in Iqbal to dismiss Plaintiff’s
municipal claims.
Municipalities are not subject to respondeat superior or vicarious liability
under § 1983; rather, there are strict limitations on municipal liability. Gold v. City
of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998). “[T]o impose § 1983 liability on
a municipality, a plaintiff must show: (1) that his constitutional rights were
violated; (2) that the municipality had a custom or policy that constituted deliberate
indifference to that constitutional right; and (3) that the policy or custom caused
the violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). Here,
Plaintiff’s municipal liability claims against the City fail because Plaintiff has not
demonstrated that he suffered a constitutional violation. See Dahl v. Holley, 312
F.3d 1228, 1236 (11th Cir. 2002). Furthermore, Plaintiff failed to sufficiently
plead any policy or custom in the City’s training, hiring, or screening practices that
caused the alleged constitutional violation.8
III. CONCLUSION
For the reasons stated above, we AFFIRM the judgment of the district
court.
8
Plaintiff incorrectly asserts that he is entitled to discovery to attempt to find a municipal
pattern or custom. See Iqbal, 556 U.S. at 686 (When the “complaint is deficient under Rule 8,
[the plaintiff] is not entitled to discovery.”).
13