[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 8, 2009
THOMAS K. KAHN
Nos. 08-16802 & 09-10500 CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 08-01973-CV-WBH-1
GRAMS B. OSBORNE,
Plaintiff-Appellant,
versus
AMERICAN MULTI CINEMA, INC.,
d.b.a. AMC Theaters Parkway Point 15,
(DEPUTY) PHILLIP ANTONIO PAUL, Individual,
(DEPUTY) JEREMY GIBSON, Individual,
JOHN DOE, Individual,
a.k.a. Brittany,
JOHN DOE, Individual,
a.k.a. Taneka,
JOHN DOE, Individually,
Jointly, and Severally,
a.k.a. Insurance Company(s),
Defendants-Appellees.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
_________________________
(October 8, 2009)
Before MARCUS, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Grams B. Osborne appeals pro se the summary judgment against Osborne’s
complaint that his civil rights were violated in the events that led to his arrest and
prosecution in a Georgia court for criminal trespass. See 42 U.S.C. § 1983. The
district court concluded that the officers had probable cause to arrest Osborne. We
affirm.
I. BACKGROUND
Phillip Antonio Paul, a security officer for American Multi Cinema and an
officer of the Sheriff’s Department of Cobb County, Georgia, noticed Osborne
combing the lobby and hallways of the theater. Paul watched Osborne select
patrons and employees of the theater, primarily women, to approach, after which
he would “blatantly stare at them.” Paul confronted Osborne and questioned him
about his conduct. When Osborne stated that he did not have a movie ticket, Paul
told Osborne to leave the theater. Paul warned Osborne that if he did “come back
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and continue with [his] actions, [he] [would] be charged with criminal trespass.”
An employee of the theater later told Paul that Osborne had grabbed her hand.
Osborne returned to American Cinema the next day, purchased a ticket, and
asked to speak with a manager about his conversation with Paul. Osborne
eventually spoke with security officer Jeremy Gibson. Gibson called Paul to
inquire about his conversation with Osborne. Paul told Gibson about Osborne’s
odd behavior and that Paul had banned Osborne from the premises.
Gibson arrested Osborne and issued a written warning stating that Osborne
was “forbidden to return” to the theater. Osborne was charged in a Georgia court
for criminal trespass and obstruction of justice. A jury convicted Osborne of
criminal trespass and acquitted him of obstruction of justice.
A Georgia appeals court reversed Osborne’s conviction on the ground that
he did not receive notice as required by state statute before he was arrested for
criminal trespass. Osborne v. State, 290 Ga. App. 188, 189–90, 665 S.E.2d 1, 2
(2008). The statute required that, to prosecute for criminal trespass, the trespasser
must receive notice from “the owner, rightful occupant” or an “authorized
representative of the owner or rightful occupant” that he is forbidden to enter the
premises, O.C.G.A. § 16-7-21(b)(2), and the evidence established that Paul had
not talked to or received permission from the owner or manager of the theater
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before he banned Osborne from the theater. Osborne, 290 Ga. App. at 189–90,
665 S.E.2d at 2. The state court explained that, had Osborne returned to the
theater after he received the warning from Gibson, Osborne “could have been
arrested for criminal trespass.” Id. at 190, 665 S.E.2d at 2.
Osborne filed a complaint in a Georgia court that alleged he had been
falsely arrested and maliciously prosecuted in violation of state law by American
Cinema, Paul, Gibson, two other employees of American Cinema, and an unnamed
insurance company. Osborne alleged that the defendants also had violated his
rights to due process and equal protection under the Fourth, Fifth, and Fourteenth
Amendments, and his rights reserved under the Ninth and Tenth Amendments.
Osborne later moved to amend his complaint to add Cobb County and the State of
Georgia as defendants; to withdraw his claims under state law; and to add claims
of false arrest, false imprisonment, malicious prosecution, conspiracy to deprive
him of his rights to due process under the Fourteenth Amendment, and retaliation
for exercising his rights under the First Amendment.
American Cinema, Paul, and Gibson removed the case. Later, American
Cinema moved for summary judgment. In support of its motion, American
Cinema filed a transcript of Osborne’s criminal trial. Osborne objected to the use
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of the transcript and argued that he had paid a court reporter under a binding
contract to record his trial and had exclusive rights to the transcript.
The district court granted summary judgment in favor of the defendants.
The court granted Osborne’s motions to include additional defendants and his
complaints about the violation of his civil rights. The district court ruled that no
dispute of fact existed about whether Gibson had probable cause to arrest Osborne
and that the existence of probable cause precluded relief for Osborne’s complaints
of false arrest, false imprisonment, malicious prosecution under federal and state
law, conspiracy to violate his constitutional rights, and the violation of his rights
under the First Amendment. The district court ruled, in the alternative, that
Osborne failed to state a claim for a violation under the First Amendment because
he “[had] identified neither the protected speech that was suppressed or retaliated
against nor the manner in which Defendants supposedly suppressed speech or
retaliated against him.”
II. STANDARDS OF REVIEW
We review a summary judgment de novo. Ellis v. England, 432 F.3d 1321,
1325 (11th Cir. 2005). The party that moves for summary judgment must establish
that the pleadings and evidence establish there exists no genuine issue as to any
material fact. Fed. R. Civ. P. 56(c); Celotex v. Catrett, 477 U.S. 371, 325, 106 S.
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Ct. 2548, 2554 (1986). “We review for abuse of discretion the district court’s
admission of evidence.” United States v. Deverso, 518 F.3d 1250, 1254 (11th Cir.
2008).
III. DISCUSSION
Osborne raises two issues for our review. First, Osborne challenges the
summary judgment in favor of the defendants for his complaints of false arrest,
false imprisonment, malicious prosecution, conspiracy, and violation of his rights
under the First Amendment. Second, Osborne challenges the use of his state trial
transcript by American Multi Cinema. These arguments fail.
The district court correctly granted summary judgment in favor of American
Cinema, Deputy Sheriffs Paul and Gibson, and the State of Georgia. The district
court found that Gibson had probable cause to arrest Osborne for criminal trespass
and that finding was supported by the record of Osborne’s state criminal
proceedings. Gibson reasonably believed that Paul had banned Osborne from the
theater and Gibson had probable cause to believe that Osborne, by returning to the
theater, had committed criminal trespass. That Osborne’s conviction was later
reversed because Paul lacked authority to ban Osborne from the theater does not
affect our analysis because “[p]robable cause does not require the same type of
specific evidence of each element of the offense as would be needed to support a
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conviction.” Holmes v. Kucynda, 321 F.3d 1069, 1079 (11th Cir. 2003). Osborne
argues that the warrant for his arrest was obtained by fraud and his conviction
could not provide “conclusive evidence of probable cause,” Condon v. Vickery,
270 Ga. App. 322, 324, 606 S.E.2d 336, 339 (2004), but Gibson obtained the
warrant after he arrested Osborne and Gibson had probable cause to make the
arrest. The existence of probable cause creates an absolute bar to Osborne’s
complaints of false arrest and false imprisonment, see Case v. Eslinger, 555 F.3d
1317, 1326–27 (11th Cir. 2009); Marx v. Gumbinner, 905 F.2d 1503, 1506 (11th
Cir. 1990), and defeats his claims for malicious prosecution, see Kjellsen v. Mills,
517 F.3d 1232, 1237–38 (11th Cir. 2008), and the violation of his rights under the
First Amendment, Dahl v. Holley, 312 F.3d 1228, 1236 (11th Cir. 2002). As
Osborne failed to establish that the defendants violated his constitutional rights,
his complaint of conspiracy also fails. Cook v. Randolph County, Ga., 573 F.3d
1143, 1153 (11th Cir. 2009).
The district court did not abuse its discretion by admitting Osborne’s trial
transcript. Osborne complains that admission of the transcript violated state
evidentiary rules, but when a district court exercises supplemental jurisdiction
over alleged violations of state law, “federal law governs procedural issues.”
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McDowell v. Brown, 392 F.3d 1283, 1294 (11th Cir. 2004). Osborne cites no
authority that precludes admission of the transcript in his federal proceeding.
IV. CONCLUSION
The summary judgment against Osborne’s complaint is AFFIRMED.
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