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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10396
Non-Argument Calendar
____________________
KENNETH GRAHAM,
Plaintiff-Appellant,
versus
WAYNE LUKE,
Investigator,
Defendant-Appellee,
SHERIFF NICK NORTON, et al.,
Defendants.
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2 Opinion of the Court 23-10396
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 7:20-cv-00006-HL
____________________
Before JORDAN, NEWSOM, and LAGOA, Circuit Judges.
PER CURIAM:
Kenneth Graham, proceeding pro se, appeals the grant of
summary judgment in his civil suit against a police investigator,
Wayne Luke, after Graham was arrested on an outstanding
warrant that Luke had obtained. On appeal, Graham first asserts
that the district court improperly concluded that qualified
immunity shielded Luke because, Graham asserts, Luke acted with
actual malice and because no probable cause existed to support the
warrant that led to Graham being arrested, photographed,
fingerprinted, strip searched, placed in a holding cell, and detained
for ten days. Second, Graham argues that the district court erred
by concluding that official immunity shielded Luke from state-law
liability because, Graham says, Luke acted with malice and without
probable cause. Finally, Graham contends that the district court
erred by granting summary judgment to Luke on Graham’s
intentional-infliction-of-emotional-distress claim. After careful
review, we affirm.
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23-10396 Opinion of the Court 3
I
After a customer handed store clerk Michelle Kilgore a
counterfeit check, police sent Inspector Wayne Luke to investigate.
The check was made out to Kenneth Anthony Graham. Luke put
that name into the police database and found Graham’s driver’s
license photo. He showed it to Kilgore who confirmed that
Graham was the individual who presented the fraudulent check.
On this basis, Luke obtained a warrant for Graham’s arrest.
Several months later, another officer encountered Graham during
a traffic incident and, after running his license number, arrested
him pursuant to the warrant. The officer strip-searched,
photographed, and booked Graham before detaining him for 10
days.
Graham filed suit against Luke, alleging a Fourth
Amendment unlawful-search-and-seizure claim, an unlawful-
pretrial-detention claim under federal law, a federal false-arrest
claim, a state-law intentional-infliction-of-emotional-distress claim
and, later, federal and state malicious-prosecution claims.
Wielding official- and qualified-immunity defenses against both
federal- and state-law claims, Luke secured summary judgment.
II
On appeal, we must determine (1) whether Luke was
entitled to qualified immunity on Graham’s Fourth Amendment
and federal malicious-prosecution claims, (2) whether Luke was
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entitled to official immunity on Graham’s state-law claims, and (3)
whether the district court erred by concluding that Graham failed
to establish his intentional-infliction-of-emotional-distress claim.1
A
We first consider whether qualified immunity shielded Luke
from Fourth Amendment liability. We conclude that it did. Section
1983 provides a cause of action for private citizens against persons
acting under color of state law for violating their constitutional
rights and other federal laws. See 42 U.S.C. § 1983. An official who
is sued under § 1983 may seek summary judgment on the ground
that he is entitled to qualified immunity. Crosby v. Monroe Cnty., 394
F.3d 1328, 1332 (11th Cir. 2004). To receive qualified immunity,
Luke didn’t even need to have actual probable cause, “but [rather]
only ‘arguable probable cause,’”—“i.e., the facts and circumstances
must be such that the officer reasonably could have believed that
probable cause existed.” Edger v. McCabe, 84 F.4th 1230, 1236 (11th
Cir. 2023).
What distinguishes actual from “arguable” probable cause?
“Probable cause exists if the totality of the circumstances known
to the officers could persuade a reasonable officer that there is a
1 We review the grant of summary judgment de novo, viewing all the evidence
and drawing all reasonable inferences in favor of Graham. Fish v. Brown, 838
F.3d 1153, 1156–57 (11th Cir. 2016). Summary judgment is appropriate if the
movant shows that there is “no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We
also review de novo “a probable cause determination.” United States v.
Lebowtiz, 676 F.3d 1000, 1010 (11th Cir. 2012).
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‘substantial chance of criminal activity’ by the person who is
arrested.” Davis v. City of Apopka, 78 F.4th 1326, 1334 (11th Cir.
2023) (quoting District of Columbia v. Wesby, 583 U.S. 48, 57 (2018)).
In this Circuit, probable cause requires “only a probability or
substantial chance” of criminal activity and “does not require
anything close to conclusive proof . . . or even a finding made by a
preponderance of the evidence.” Paez v. Mulvey, 915 F.3d 1276,
1286 (11th Cir. 2019). It need only be “reasonable to conclude from
the totality of the circumstances that a crime was committed.”
Henley v. Millsap, No. 21-12231, 2022 WL 3654846, at *2 (11th Cir.
Aug. 25, 2022) “Arguable probable cause,” not surprisingly, is an
even lower threshold. Arguable probable cause exists if “a
reasonable officer, looking at the entire legal landscape at the time
of the arrests, could have interpreted the law as permitting the
arrests.” See Wesby, 583 U.S. at 68.
Luke had actual probable cause to flag Graham for arrest.
Id. Luke performed a database search that revealed Graham’s
license, spoke with the store clerk who received the fraudulent
check, showed her Graham’s photograph, and received a positive
identification for Graham. Although Graham argues that Luke
could easily have determined that Graham was not the individual
who presented the fraudulent check by reviewing video footage
from the store, he never requested that footage—nor has he
pointed to anything in the record that would have similar
exonerating value. Because the totality of the circumstances
presented an adequate basis to conclude that a crime had occurred,
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Luke was not required to sift through conflicting evidence. See
Huebner v. Bradshaw, 935 F.3d 1183, 1188 (11th Cir. 2019)
As to Graham’s related malicious-prosecution claim, the
district court did not err by determining that the claim failed as a
matter of law. There is both a Georgia-law and common-law
standard for malicious prosecution; both standards require that the
prosecution be “with malice and without probable cause.” Compare
Paez, 915 F.3d at 1285, with Renton v. Watson, 739 S.E.2d 19, 23 (Ga.
Ct. App. 2013). Graham does not point to, nor does the record
reveal, any evidence that Luke acted with malice. Graham cannot
establish his malicious-prosecution claim because he cannot show
that prosecution occurred without probable cause and with malice.
Accordingly, the district court did not err in dismissing
Graham’s Fourth Amendment and malicious-prosecution claims.
B
We next consider Graham’s state-law claims. To begin, his
state-law malicious-prosecution claim warrants summary
judgment based on official immunity. Under Georgia law, official
immunity “protects an officer from personal liability arising from
his performance of ‘official functions’ as long as the officer did not
act with ‘actual malice’ or ‘actual intent to cause injury.’” Gates v.
Khokhar, 884 F.3d 1290, 1304 (11th Cir. 2018) (quoting Ga. Const.
art. I, § 2, para. IX(d)). Official immunity “applies to an officer’s
discretionary actions taken within the scope of [his] official
authority.” Id. at 1304 (quotation marks and citation omitted). An
officer acts within his discretionary authority when investigating a
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case, obtaining warrants, and executing those warrants. Marshall v.
Browning, 712 S.E.2d 71, 74 (Ga. Ct. App. 2011).
To establish a claim for malicious prosecution under
Georgia law, “a plaintiff must show that the defendant acted both
without probable cause and maliciously.” Stephens v. Zimmerman,
774 S.E.2d 811, 815 (Ga. Ct. App. 2015) (quoting Anderson v. Cobb,
573 S.E.2d 417, 419 (Ga. Ct. App. 2002) (alteration adopted)).
Malice may be inferred by a total lack of probable cause. Id.
In the context of official immunity, actual malice requires a
deliberate intention to do wrong. Bateast v. DeKalb Cnty., 572 S.E.2d
756, 758 (Ga. Ct. App. 2002). Ill will alone cannot establish actual
malice. Stephens, 774 S.E.2d at 816. A deliberate intention to do
wrong means the intent to cause the harm suffered by the plaintiff.
Murphy v. Bajjani, 647 S.E. 2d. 54, 60 (Ga. Ct. App. 2007). Moreover,
an actual intent to cause injury requires an actual intent to harm
the plaintiff, not merely an intent to do the act purportedly
resulting in the claimed injury. Kidd v. Coates, 518 S.E.2d 124, 125
(Ga. 1999).
Graham presented no evidence to show that Luke acted
with actual malice or any deliberate intention to do wrong. As
already explained, actual probable cause existed for Luke to seek an
arrest warrant for Graham. Huebner, 935 F.3d at 1188; Rankin v.
Evans, 133 F.3d 1425, 1441 (11th Cir. 1998). The existence of actual
probable cause defeats Graham’s claims of malicious prosecution
and false arrest. Stephens, 774 S.E.2d. at 815; see Adams v. Carlisle, 630
S.E.2d 529, 535 (2006) (specifically addressing the false arrest
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prong). Although Graham argues that Luke misstated the
information in the arrest affidavit and “knew” that Graham did not
commit the charged crimes, he did not present any evidence
showing that Luke intended to cause him harm. Murphy, 647 S.E.
2d. at 60; Kidd, 518 S.E.2d at 125.
In short, because Graham didn’t show that Luke acted with
actual malice and without probable cause, the district court did not
err by concluding that Luke was entitled to official immunity on
these claims.
C
Lastly, we consider whether the district court erred in
granting summary judgment to Luke as to Graham’s intentional-
infliction-of-emotional-distress claim. We conclude that it didn’t.
A Georgia intentional-infliction-of-emotional-distress
plaintiff must show that: “(1) the conduct giving rise to the claim
was intentional or reckless; (2) the conduct was extreme and
outrageous; (3) the conduct caused emotional distress; and (4) the
emotional distress was severe.” Mayorga v. Benton, 875 S.E.2d 908,
913 (Ga. Ct. App. 2022). The conduct must be “so extreme in
degree, as to go beyond all possible bounds of decency,” and
whether the claim rises to the requisite level of outrageousness is a
question of law. Id. Additionally, “[t]o demonstrate that the
emotional distress [he] suffered was severe, a plaintiff must show,
at the very least, that physical and/or mental manifestations of that
distress required him to seek medical or psychological treatment.”
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Howerton v. Harbin Clinic, LLC, 333 776 S.E.2d 288, 301 (Ga. Ct. App.
2015).
The district court did not erroneously conclude that even
though Graham was fingerprinted, strip searched, photographed,
booked, and detained for 10 days, this conduct does not rise to the
requisite level of outrageousness to establish an intentional-
infliction-of-emotional-distress claim. Mayorga, 875 S.E.2d at 913.
Moreover, Graham conceded in his deposition that the stress and
embarrassment that he suffered because of his arrest had not
manifested into a physical form, nor had he sought any
psychological or medical treatment, as required. Howerton, 776
S.E.2d at 301. Thus, the district court did not err in concluding that
Luke was entitled to judgment as a matter of law on Graham’s
intentional-infliction-of-emotional-distress claim.
In sum, the district court correctly determined that
summary judgment was proper as to Graham’s state-law claims.
* * *
For the foregoing reasons, the district court did not err in
granting summary judgment in favor of Luke against Graham’s
Fourth Amendment claim, his federal and state malicious-
prosecution claims, and his state-law intentional-infliction-of
emotional-distress-claim.
AFFIRMED.