George Mark Tuggle v. Victor Hill

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
_____________________________ FILED
U.S. COURT OF APPEALS
No. 07-13508 ELEVENTH CIRCUIT
_____________________________ JUNE 4, 2008
THOMAS K. KAHN
CLERK
D. C. Docket No. 06-00272-CV-ODE-1

GEORGE MARK TUGGLE,

Plaintiff-Appellee,
versus

VICTOR HILL, Clayton County Sheriff
in both his official and individual capacities,
JOANN BORELLI, Deputy Sheriff,

Defendants-Appellants.

_______________________

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

(June 4, 2008)

Before CARNES and MARCUS, Circuit Judges, and BUCKLEW,* District Judge.

*Honorable Susan C. Bucklew, United States District Judge for the Middle District of Florida,
sitting by designation.
PER CURIAM:

This is an appeal of the district court’s determination, on summary

judgment, that the Appellants, Sheriff Victor Hill and Deputy Sheriff Joann

Borelli, were not entitled to assert the defense of qualified immunity. The

standard of review from a district court’s denial of summary judgment is de novo.

Kingsland v. City of Miami, 382 F.3d 1220, 1225 (11th Cir. 2004).

The district court found that Appellants were not entitled to assert the

defense of qualified immunity, and therefore were not entitled summary judgment

on any of Appellee George Mark Tuggle’s claims. Appellee’s complaint asserted

three claims against Appellants: false arrest in violation of the Fourth Amendment,

malicious prosecution in violation of the Fourth Amendment, and retaliatory

prosecution in violation of the First Amendment. The only issue before this Court

is the district court’s decision denying Appellants’ motion for summary judgment

on the Fourth Amendment claims for false arrest and malicious prosecution.

The facts of this case, viewed in the light most favorable to the non-moving

party (here, Appellee George Mark Tuggle), show that Appellee made two short

phone calls within a three minute period, and in each requested a meeting with

Appellant Sheriff Victor Hill. In one phone call, Appellee used the term “scum,”

and in the other used the phrase “short lil’ bastard” in reference to Appellant

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Sheriff Victor Hill. The district court correctly found that no reasonable police

officer could have believed that these facts established arguable probable cause to

arrest the Appellee for violating Georgia’s harassing phone calls statute.

Accordingly, we affirm the district court’s decision that Appellants are not

entitled to summary judgment on the Appellee’s Fourth Amendment claims for

false arrest and malicious prosecution.

AFFIRMED.

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