Gelu Topa v. Almonte Kerbs

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 29, 2019
• Docket: 19-10819
• Status: Unpublished

Opinion

Case: 19-10819 Date Filed: 07/29/2019 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-10819 Non-Argument Calendar ________________________

D.C. Docket No. 2:18-cv-00475-SPC-MRM

GELU TOPA,

Plaintiff-Appellant,

versus

ALMONTE KERBS, OFFICER ROCHELLE MEJIAS, et al, Defendants-Appellees.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(July 29, 2019)

Before MARTIN, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM: Case: 19-10819 Date Filed: 07/29/2019 Page: 2 of 4

Gelu Topa, proceeding pro se, appeals the dismissal of his 42 U.S.C. § 1983

action, alleging entrapment and false arrest, for failing to state a claim upon which

relief may be granted and for improperly serving the complaint. On appeal, Topa

argues that the police failed to follow procedures during his arrest and

subsequently filed a false police report. Topa does not argue that process was

properly served.

I.

A district court’s dismissal for failure to state a claim is reviewed de novo.

Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1056–57 (11th Cir. 2007).

The complaint is viewed in the light most favorable to the plaintiff, and all of the

plaintiff’s well-pleaded facts are accepted as true. Id. at 1057. To survive a

motion to dismiss, a plaintiff’s factual allegations must state a claim to relief that is

plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plausible claim is one which

allows a court to draw reasonable inferences that the defendant is liable for the

claims. Id. Pro se pleadings are liberally construed and held to less stringent

standards than pleadings drafted by attorneys. Campbell v. Air Jam. Ltd., 760 F.3d

1165, 1168–69 (11th Cir. 2014). However, this leniency does not allow courts to

serve as de facto counsel or to rewrite pro se pleadings. Id.

2 Case: 19-10819 Date Filed: 07/29/2019 Page: 3 of 4

Entrapment is an affirmative defense in criminal prosecutions requiring the

defendant to produce evidence showing that the government induced the crime and

that the defendant was otherwise not predisposed to commit the crime. United

States v. Rutgerson, 822 F.3d 1223, 1234 (11th Cir. 2016). Whether a defendant

was predisposed to commit the crime is a “fact-intensive and subjective inquiry”

centered on the defendant’s readiness and willingness to engage in the crime. Id.

at 1235. A § 1983 claim for false arrest requires the plaintiff to show he was

arrested without probable cause. District of Columbia v. Wesby, 138 S. Ct. 577,

584, 589 & n.6 (2018). Probable cause exists where circumstances create a

probability or substantial chance of criminal activity; probable cause is not a high

bar. Id. at 586.

Topa’s second amended complaint, liberally construed, does not assert facts

sufficient to state a claim upon which relief may be granted. To the extent

entrapment provides grounds for a § 1983 claim, Topa has failed to show that he

was coerced into, or otherwise not predisposed to, solicit a prostitute. Topa

asserted that when the woman came to his car window, he immediately went along

with her and gave her the impression he was interested. This readiness to go along

with the woman suggests instead that Topa was predisposed to solicit a prostitute.

Topa made no assertions that he was initially hesitant to engage with the woman or

was in any way coerced into telling the woman he was interested. Thus, the

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district court properly dismissed this claim upon the defendants’ 12(b)(6) motion.

Additionally, Topa has failed to show that the officers did not have probable cause

to arrest him for said crime. By asserting that he showed interest in the woman and

had her wait for him elsewhere, Topa created circumstances showing a substantial

chance of criminal activity. Accordingly, we conclude that the district court did

not err in dismissing Topa’s second amended complaint for failure to state a claim

pursuant to the defendants’ 12(b)(6) motion and affirm.

AFFIRMED