Brandon Carter v. Randy Gore, et al

Filing

Opinion issued by court as to Appellant Brandon R. Carter. Decision: Affirmed in part and Vacated and Remanded in part. Opinion type: Non-Published. Opinion method: Per Curiam.

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Date Filed: 02/28/2014

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-11629
Non-Argument Calendar
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D.C. Docket No. 4:12-cv-00292-HLM

BRANDON R. CARTER,
Plaintiff - Appellant,
versus
RANDY GORE,
a City of Rome Police Officer,
CITY OF ROME,
Jointly and Severally,
J. NELSON,
Floyd County Deputy, Individually,
Defendants - Appellees.
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Appeal from the United States District Court
for the Northern District of Georgia
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(February 28, 2014)

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Before HULL, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Brandon R. Carter was arrested for shoplifting at a Pawn Mart in Rome,
Georgia. The warrant for his arrest was obtained on an affidavit by Randy Gore, a
police officer with the City of Rome. Officer Gore’s affidavit stated that Carter
assisted a co-perpetrator “by distracting store employees while the co-perpetrator
took possession of a diamond ring valued at $9,000.00.” Carter spent more than
sixty days in jail after his arrest before the charges were dismissed on motion by
the state. Carter then filed a complaint against Officer Gore, J. Nelson, the deputy
who arrested him, and the City of Rome stating claims pursuant to 42 U.S.C. §
1983 and Georgia law claims of illegal arrest, false imprisonment, and intentional
infliction of emotional anguish. The district court dismissed Carter’s Amended
Complaint with prejudice, finding that he failed to state a claim upon which relief
can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). On appeal,
Carter maintains that he pleaded sufficient facts to support each of his substantive
claims.
We review de novo the district court’s grant of a motion to dismiss for
failure to state a claim under Rule 12(b)(6). Mills v. Foremost Ins. Co., 511 F.3d
1300, 1303 (11th Cir. 2008). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter . . . to state a claim to relief that is plausible on its
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face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (internal
quotation marks omitted).
After careful de novo review, we agree with the district court that Carter’s
Amended Complaint, “at most, contains legal conclusions and mere conclusory
allegations, which are insufficient to state a viable claim for relief” as to the claims
against defendants Nelson and the City of Rome, and the Georgia state law claims
against Gore. Therefore, the district court properly dismissed those claims with
prejudice.
We determine, however, that Carter’s Amended Complaint contains
sufficient allegations to survive a motion to dismiss on his § 1983 claim against
Gore. Before turning to the sufficiency of Carter’s factual allegations, we must
first determine whether those allegations make out a prima facie § 1983 claim
against Gore and whether Gore’s qualified immunity defense can be defeated.
I. Carter’s § 1983 Claim
The district court dismissed Carter’s claim in part because if Carter’s “arrest
occurred pursuant to an arrest warrant, then he cannot state a viable § 1983 claim
for false arrest or false imprisonment.” Instead, the district court held that Carter
could only make out a claim for malicious prosecution, which is the constitutional
tort available to people who have been wrongfully arrested pursuant to legal
process. The district court then concluded that Carter’s claim against Gore for
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malicious prosecution must fail because Carter failed to allege that Gore “had any
control over [Carter’s] detention once [he] was arrested and placed into custody.”
Since Carter’s only available claim was for malicious prosecution, and his factual
allegations against Gore only related to his arrest but not his detention and
prosecution, the district court concluded that the claims against Gore must be
dismissed.
Given that Carter was arrested pursuant to a warrant, the district court
properly concluded that Carter’s only available claim against Gore under § 1983
was for malicious prosecution. In Heck v. Humphrey, the Supreme Court
distinguished false arrest from malicious prosecution, stating, “unlike the related
cause of action for false arrest or imprisonment, [malicious prosecution] permits
damages for confinement imposed pursuant to legal process.” 512 U.S. 477, 484,
114 S. Ct. 2364, 2371 (1994). The issuance of a warrant—even an invalid one as
Carter alleges was issued here—constitutes legal process, and thus, where an
individual has been arrested pursuant to a warrant, his claim is for malicious
prosecution rather than false arrest. See Calero-Colon v. Betancourt-Lebron, 68
F.3d 1, 4 (1st Cir. 1995) (holding adopted by the Eleventh Circuit in Whiting v.
Traylor, 85 F.3d 581, 585 (11th Cir. 1996)); see also Joyce v. Adams, 2007 WL
2781196, at *4 (S.D. Ga. Sept. 20, 2007) (“Regardless of the validity of the
warrant, plaintiff’s allegations support a § 1983 malicious prosecution claim rather
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than a § 1983 false arrest claim.” (emphasis added)). In such circumstances, the
Eleventh Circuit “has identified malicious prosecution as a violation of the Fourth
Amendment and a viable constitutional tort cognizable under § 1983.” Wood v.
Kesler, 323 F.3d 872, 881 (11th Cir. 2003); see also Joyce, 2007 WL 2781196, at
*4 (recognizing malicious prosecution as a cognizable § 1983 claim).
Having identified the proper claim, the district court erroneously concluded
that Carter’s complaint did not state a claim for malicious prosecution against
Gore. First, Carter’s Amended Complaint specifically alleges malicious
prosecution against Gore: “Defendant Gore caused a warrant to be issued for
[Carter’s] arrest for committing a crime in the Pawn Mart in Rome, without
probable cause[, and Carter] was arrested, imprisoned and maliciously
prosecuted.” (Emphasis added.) More importantly, and contrary to the district
court’s assertion, “ha[ving] control over [Carter’s] detention once [he] was arrested
and placed into custody” is not necessarily an element of malicious prosecution.
Indeed, in Kelly v. Curtis, we held an officer liable for malicious prosecution under
§ 1983 where she secured an arrest warrant without probable cause, without any
discussion of subsequent control over the suspect or further participation in his
prosecution. 21 F.3d 1544, 1555 (11th Cir. 1994). Similarly, in Whiting, we held
that merely by securing an arrest warrant without probable cause, regardless of

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subsequent detention, a “Fourth Amendment violation . . . analogous to the tort of
malicious prosecution[]” occurs. 85 F.3d at 586.
Further, an officer who secures an arrest warrant without probable cause is
liable for all foreseeable injuries flowing from the officer’s initial act, regardless of
further involvement. Id. (holding that the suspect may sue for “injuries caused by
the unlawful seizure[, which] may include those associated with the prosecution”);
see also Malley v. Briggs, 475 U.S. 335, 345, 106 S. Ct. 1092, 1098 (1986)
(holding that § 1983 liability is premised on holding people responsible for the
natural consequences of their actions and that liability for the consequences of an
arrest flow naturally from filing an affidavit). Thus, contrary to the district court’s
suggestion, an officer’s liability for malicious prosecution flows from initially
securing an invalid warrant, and liability extends to foreseeable injuries related to
subsequent seizure, detention, and prosecution.
Carter’s Amended Complaint therefore alleges a viable § 1983 claim for
malicious prosecution against Gore, who allegedly secured an arrest warrant
without probable cause, causing Carter to be detained for more than sixty days.
The fact that Gore played no further part in Carter’s subsequent detention does
nothing to undermine this claim.
II. Qualified Immunity

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Gore raised a qualified immunity affirmative defense in his motion to
dismiss. Qualified immunity shields government officials performing
discretionary functions from § 1983 suits unless their conduct violates “clearly
established statutory or constitutional rights of which a reasonable person would
have known.” Hope v. Pelzer, 536 U.S. 730, 739, 122 S. Ct. 2508, 2515 (2002)
(internal quotation marks omitted). Government officials bear the initial burden of
showing that their allegedly unconstitutional acts occurred within the scope of their
discretionary authority. Wood, 323 F.3d at 877. This burden is easily met here, as
Gore was clearly acting within the scope of his discretionary authority as a police
officer by investigating and securing an arrest warrant in response to reported
criminal activity.
The burden then shifts to the plaintiff to show that the defendant violated a
constitutional right and that the constitutional right was clearly established at the
time of the alleged violation. See Pearson v. Callahan, 555 U.S. 223, 236, 129 S.
Ct. 808, 818 (2009) (granting lower courts discretion to analyze the two distinct
components of plaintiffs’ burden in either order). A fair reading of Carter’s
Amended Complaint reveals two possible constitutional violations.
A. Perjurious Statements in Support of a Warrant
First, Carter alleges that Gore violated his constitutional rights by
“fabricating evidence” against him. In Franks v. Delaware, 438 U.S. 154, 165–66,
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98 S. Ct. 2674, 2681 (1978), the Supreme Court established the constitutional right
to be free from officers making “perjurious or recklessly false statements in
support of a warrant.” Kelly, 21 F.3d at 1554. The Court made clear that
statements made in support of a warrant need not actually be true, but they needed
“to be ‘truthful’ in the sense that the information put forth is believed or
appropriately accepted by the affiant as true.” Franks, 438 U.S. at 166, 98 S. Ct. at
2681. In Franks, the officer’s misstatements were used to secure a search warrant.
Id. We extended the holding of Franks to cases involving arrest warrants in
United States v. Martin, 615 F.2d 318, 327–29 (5th Cir. 1980); 1 see also Kelly, 21
F.3d at 1554 (recognizing that the Constitution prohibits officers from making
perjurious or recklessly false statements to secure arrest warrants).
In Kelly, we determined that only part of the constitutional rule announced
in Franks is sufficiently clear to defeat qualified immunity. Kelly, 21 F.3d at 1554.
An officer loses qualified immunity if the plaintiff can prove that the officer
perjured himself—that is, put forth information he did not believe or accept as
true—in order to obtain a search warrant. Id. An officer does not lose qualified
immunity, however, if all the plaintiff can prove is that the officer made recklessly
false statements in order to obtain a search warrant. Id. We explained that the
blurry line between reckless misstatements, which violate the rule in Franks, and
1

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we
adopted as binding precedent all Fifth Circuit decisions issued before October 1, 1981.
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negligent misstatements, which do not, renders this portion of Franks insufficiently
clear to defeat qualified immunity. Id.
Therefore, for Carter to defeat Gore’s qualified immunity defense by
showing a violation of the rule announced in Franks, Carter’s pleading must allege
that Gore perjured himself. Carter’s Amended Complaint alleges that Gore
“fabricated evidence,” which implies that Gore put forward evidence he did not
believe or accept as true. This allegation, if plausible, states a constitutional
violation that defeats Gore’s qualified immunity.
B. Securing a Warrant without Arguable Probable Cause
Second, Carter alleged that Gore violated his constitutional rights by
securing an arrest warrant when “an objectively reasonable law enforcement
officer in defendant[] Gore’s [position] would have known that no arguable
probable cause existed to arrest Plaintiff Carter for robbery or [as] a party to a
crime.” In Malley v. Briggs, the Supreme Court established that even if a
magistrate approves an arrest warrant, the officer who applied for the warrant may
be liable for violating the Constitution if the evidence presented to the magistrate
was insufficient to establish probable cause. 475 U.S. at 345, 106 S. Ct. at 1098.
Under this standard, however, the question is not whether probable cause actually
existed; rather, the question is whether the officer had “arguable” probable cause.
Von Stein v. Brescher, 904 F.2d 572, 578 (11th Cir. 1990). Moreover, in order to
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defeat an officer’s qualified immunity defense, the plaintiff must show that “a
reasonably well-trained officer . . . would have known that his affidavit failed to
establish probable cause and that he should not have applied for a warrant.”
Malley, 475 U.S. at 345, 106 S. Ct. at 1098.
Specifically, this court has applied Malley to hold an officer liable where she
secured an arrest warrant based on an affidavit that “articulate[d] neither the basis
for her belief that [the suspect] violated the law nor any affirmative allegation that
she had personal knowledge of the circumstances of [the] alleged crime.” Kelly,
21 F.3d at 1555; see also Garmon v. Lumpkin County, 878 F.2d 1406, 1408–09
(11th Cir. 1989) (holding an officer liable where the affidavit states only that the
suspect “did . . . commit the offense” because without “information providing the
basis for the affiant’s belief nor any affirmative allegation that the affiant had
personal knowledge of the circumstances surrounding the alleged commission of
the crime,” the “conclusory assertion clearly is insufficient to establish probable
cause” (citations omitted)).
Malley should not be read to subject officers to liability simply for leaving
evidence out of an affidavit, however. Instead, Malley sets a standard by which to
judge the overall sufficiency of an officer’s evidentiary basis for seeking an arrest
warrant. Malley explicitly states that the officer commits a violation only if her
affidavit lacked probable cause and she “should not have applied for the warrant.”
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475 U.S. at 345, 106 S. Ct. at 1098 (emphasis added). Inherent in this language is
the proposition that qualified immunity is not lost when all the evidence available
to the officer establishes at least arguable probable cause, even if this evidence is
not listed in an affidavit. See Joyce, 2007 WL 2781196, at *6.
Carter’s Amended Complaint alleges that a reasonable officer in Gore’s
position would have known that he lacked arguable probable cause. This
allegation, if plausible, states a constitutional violation that defeats Gore’s
qualified immunity.
III. The Sufficiency of Carter’s Factual Allegations
We must now determine whether Carter’s Amended Complaint contains
“sufficient factual matter . . . to state a claim to relief that is plausible on its face.”
Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 (internal quotation marks omitted).
Accordingly, the district court’s dismissal of Carter’s § 1983 claim against Officer
Gore must be reversed if Carter’s Amended Complaint contains sufficient facts to
plausibly suggest (A) that Gore perjuriously secured a warrant for Carter’s arrest,
or (B) that Gore lacked arguable probable cause when he secured the warrant.
In his Amended Complaint, Carter asserts the following “factual
enhancements” to bolster his legal allegations, id. at 678, 129 S. Ct. at 1949: he did
not commit the crime alleged; 2 none of the surveillance photos Officer Gore was

2

Carter does not clearly deny responsibility for the crime in his Amended Complaint. He
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shown depicted Carter; despite having credible eyewitness testimony from the
Pawn Mart’s clerk, Gore had no witness accounts to place Carter at the scene; Gore
had no evidence that Carter had ever been to Rome, Georgia, let alone the Pawn
Mart; Gore never found any information to connect Carter with the crime charged;
and the state voluntarily decided not to prosecute Carter. He also quotes Gore’s
entire affidavit:
“The Accused did commit the above offenses with the intent to
appropriate merchandise to his own use without paying for the
merchandise. He assisted a co-perpetrator by distracting store
employees while the co-perpetrator took possession of a diamond ring
valued at $9,000.00. Concealed the ring on his person and left the
store without paying for the ring.”
A. Perjurious Statements in Support of a Warrant
For his § 1983 claim based on Gore’s alleged violation of Franks to survive,
Carter must allege facts to plausibly suggest that Gore “did not believe or
appropriately accept as true” his ultimate assertion that Carter was guilty. This
requires some evidence establishing Gore’s subjective belief about the veracity of
the assertions made in his affidavit. The only evidence in Carter’s Amended
Complaint relating to Gore’s subjective belief is Gore’s unequivocal assertion that
Carter committed the crime. This is strong evidence that Gore subjectively

states only that the criminal charges against him were “falsely brought.” In his Brief, however,
Carter references his “contention that he did not commit the crime,” and we will therefore
assume his assertion that the charges are false was meant to be a denial of responsibility for the
alleged crime.
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believed Carter was guilty, and Carter has offered nothing to suggest that Gore was
lying. Nor has Carter offered a possible motive for Gore to lie. These facts
suggest that Gore genuinely, though perhaps erroneously, believed Carter was
guilty. This plausibly suggests negligent disregard for the truth, but it does not
suggest knowledge by Gore that his assertion was false as required to prove perjury
and defeat qualified immunity.
The only hint that Gore perjured himself is Carter’s conclusory allegation
that Gore “fabricated evidence.” Carter never specifies what evidence was
presented to the magistrate that was supposedly fabricated, and based on Gore’s
affidavit, it appears that indeed no evidence was presented. Likewise, Carter’s
Amended Complaint does not mention a single item of evidence connecting him to
the crime, fabricated or otherwise. Therefore, Carter’s claim that Gore fabricated
evidence is simply not plausible. To the extent that Carter’s § 1983 claim against
Gore is premised on a violation of Franks, his claim was properly dismissed.
B. Securing a Warrant without Arguable Probable Cause
Though Carter’s allegations of perjury are not plausible, he has alleged facts
sufficient to plausibly suggest that Gore secured an arrest warrant without arguable
probable cause. Just as in Kelly and Garmon, Gore’s affidavit contained only a
conclusory assertion that the suspect committed a crime. By listing specific steps
taken to commit the crime, the assertion in Gore’s affidavit is longer and more
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specific than was the assertion in Garmon, which simply stated that the suspect
committed the alleged crime. But Gore’s affidavit was legally deficient in
precisely the same way: it provided no evidence to support Gore’s assertions, nor
did Gore allege personal knowledge about the crime. As in Garmon, a reasonable
officer in Gore’s position would have known that such a conclusory affidavit did
not allege facts sufficient to establish arguable probable cause.
In support of his allegation that Gore lacked arguable probable cause, Carter
claims that Gore had a number of reasons to believe that Carter did not commit the
crime and no proof that he did. Without witnesses, photographic evidence, or any
evidence placing Carter at the scene of the crime, what evidence did Gore have?
According to Carter’s Amended Complaint, the answer is nothing. That answer is
confirmed by the state’s eventual decision not to prosecute Carter and Gore’s
failure to find evidence against Carter even after his arrest. To be sure, there are
many other inferences one could draw from the state’s decision not to prosecute,
but one particularly strong inference is that, as Carter suggests, there was no
evidence against him in the first place.
Gore does nothing to suggest otherwise. Rather than point to the evidence
which established arguable probable cause but which Gore left out of the affidavit
for one reason or another, Appellee’s Brief merely responds by stating:
[Eyewitnesses and surveillance photographs] are not the only two
possible categories of evidence that could provide probable cause—or
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arguable probable case [sic] for qualified immunity purposes—in
support of an arrest warrant. For example, Randy Gore could have
had fingerprint evidence, video surveillance, or other similar evidence
linking Carter to the crime.
(Emphasis added.) This is remarkably close to an admission that no such evidence
in fact existed—only that it “could have.” In any event, it certainly does nothing to
undermine Carter’s contrary assertion. These facts are sufficient to plausibly
suggest that Gore’s affidavit and the entirety of the facts known to him could not
establish arguable probable cause. Because Carter’s Amended Complaint
plausibly suggests that Gore secured an arrest warrant with virtually no evidence,
qualified immunity does not bar further proceedings.
Though sparse, we find that these facts plausibly state a cause of action
sufficient to survive a Rule 12(b)(6) motion solely as to Officer Gore in his
individual capacity on the 42 U.S.C. § 1983 claim. We therefore affirm in part,
and vacate and remand in part, for further proceedings.
AFFIRMED IN PART AND VACATED AND REMANDED IN PART.

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