Case: 17-10815 Date Filed: 11/21/2017 Page: 1 of 16
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-10815 Non-Argument Calendar ________________________
D.C. Docket No. 1:16-cv-00779-ODE
MICHAEL PIERCE, MICHELLE PIERCE,
Plaintiffs - Appellants,
versus
CLAYTON COUNTY, GEORGIA, RANDY DUANE BRASHEARS, Individually and in his official capacity as Detective employed by Clayton County, MICHAEL J. REGISTER, Individually and in his official capacity as Police Chief of Clayton County, ROBBIE FREDERICK, Individually and in his official capacity as Property Crimes Unit Supervisor of Clayton County Police Department,
Defendants - Appellees,
GRANT KIDD, Individually and in his official capacity as an Officer employed by Clayton County,
Defendant. Case: 17-10815 Date Filed: 11/21/2017 Page: 2 of 16
________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
(November 21, 2017)
Before MARCUS, JORDAN, and JILL PRYOR, Circuit Judges.
PER CURIAM:
Michael and Michelle Pierce appeal the district court’s dismissal of their
42 U.S.C. § 1983 claim based upon their arrests for theft and forgery involving a
stolen vehicle purchased at an auction. They also appeal the district court’s denial
of their motion to amend their complaint. Upon review of the record and the
parties’ briefs, we affirm in part, reverse in part, and remand for further
proceedings.1
I
Because we write for the parties, we assume their familiarity with the
underlying record and recite only what is necessary to resolve this appeal.
According to their complaint, on July 23, 2015, the Pierces purchased a 2014
Toyota Corolla at an auction from Public Storage, receiving an auction sale receipt
1 The district court’s order did not dispose of all of the Pierces’ claims. There remains a state law claim of intentional infliction of emotional distress against Officer Grant Kidd. The district court, however, certified its order as a final judgment under Fed. R. Civ. P. 54(b), concluding that there was “no just reason to delay” entry of final judgment until the claims against Officer Kidd were resolved. We conclude that the district court properly certified its order for immediate review under Rule 54(b). 2 Case: 17-10815 Date Filed: 11/21/2017 Page: 3 of 16
and certification of public sale. The following day, a tow truck driver sent by the
Pierces to retrieve the car ran the vehicle identification number and contacted the
Pierces to tell them that the vehicle was listed as stolen. The Pierces contacted the
authorities. A Clayton County Police Department officer took possession of the
vehicle, which was towed to the Tara Wrecker impound lot, and told the Pierces
that there was a hold on the vehicle.
According to the Pierces, Randy Brashears, a detective for the Clayton
County Police Department, removed the vehicle from the list of stolen vehicles.
The Pierces then contacted Tara Wrecker to notify the impound lot of their intent
to place a lien on the vehicle. Tara Wrecker informed them that the vehicle was no
longer listed as stolen. Mrs. Pierce went to the Clayton County Police Department
with this information and her documents. The records clerk checked the databases
and determined there was no longer a hold on the vehicle. The vehicle was released
from Tara Wrecker and towed to the Pierces’ place of business.
The Pierces obtained a Certificate of Inspection from the Griffin Police
Department, in which a police officer swore that the vehicle was not listed as
stolen. The Pierces registered the vehicle, paid for tax and tag, had the title bonded,
purchased insurance, and began making improvements to the vehicle.
The following day, Detective Brashears contacted the Pierces to inform them
that a mistake had been made in releasing the car. According to the Pierces, they
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showed Detective Brashears all of their paperwork and described the course of
events leading to the release of the vehicle. They allege that he “exhibited agitation
and aggression consistent with ill will” toward them during the meeting. The
Pierces surrendered the vehicle to the Clayton County Police Department, and the
vehicle was removed from their place of business on July 28, 2015.2
On August 6, 2015, the Pierces spoke with Detective Brashears to inquire
about recovering money they had spent on the vehicle. He became angry, told them
to call Captain Brody, and hung up the phone. Captain Brody stated that he would
speak with a supervisor and call them back.
At some point, Detective Brashears obtained arrest warrants for Mr. Pierce
for theft by taking and for Mrs. Pierce for theft by taking and forgery. The Pierces
were arrested on August 6, 2015, the same day they had inquired about recovering
money they spent, and remained in custody for two days. They allege that the day
after they were released, they were contacted by Clayton County Police Officer
Grant Kidd, who offered to have their charges administratively dismissed in
exchange for payment of a bribe. In January of 2016, all charges against the
Pierces were administratively dismissed because the vehicle was legally purchased
at auction and the Department had removed a hold on the vehicle. Officer Kidd
was later indicted for soliciting a bribe to dismiss the pending criminal charges.
2 The vehicle was ultimately sold at an auction in December of 2015. 4 Case: 17-10815 Date Filed: 11/21/2017 Page: 5 of 16
The Pierces asserted claims under 42 U.S.C. § 1983 and Georgia state law
against Clayton County, Detective Brashears, Officer Kidd, Michael Register,
Clayton County’s Police Chief, and Robbie Frederick, Clayton County’s Police
Department Property Crimes Unit Supervisor. The district court dismissed a
number of those claims, and denied the Pierces’ motion for leave to amend to add a
Monell 3claim for deliberate indifference with respect to the Clayton County Police
Department’s hiring of Officer Kidd and a cause of action for conversion under
Georgia law, determining that both of those claims would be futile. The Pierces
appeal the district court’s dismissal of their § 1983 malicious prosecution claim,
civil conspiracy claim, and claim for attorneys’ fees and damages against
Detective Brashears, as well as the district court’s denial of their motion to amend.
II
We review de novo the district court’s grant of a motion to dismiss for
failure to state a claim under Fed. R. Civ. P. 12(b)(6). See Leib v. Hillsborough
Cty. Pub. Transp. Comm’n, 558 F.3d 1301, 1305 (11th Cir. 2009). “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘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)). Although a court is required to accept the allegations in a complaint as
3 Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978). 5 Case: 17-10815 Date Filed: 11/21/2017 Page: 6 of 16
true, “[f]actual allegations must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555 (citation omitted).
A
The Pierces argue that the district court improperly dismissed their claim for
malicious prosecution against Detective Brashears. “To establish a federal
malicious prosecution claim under § 1983, the plaintiff must prove a violation of
his Fourth Amendment right to be free from unreasonable seizures in addition to
the elements of the common law tort of malicious prosecution.” Wood v. Kesler,
323 F.3d 872, 881 (11th Cir. 2003) (emphasis in original). “[F]or purposes of a §
1983 malicious prosecution claim, the constituent elements of the common law tort
of malicious prosecution included: (1) a criminal prosecution instituted or
continued by the present defendant; (2) with malice and without probable cause;
(3) that terminated in the plaintiff accused’s favor; and (4) caused damage to the
plaintiff accused.” Id. at 881–82. These are the same elements required under
Georgia law for the tort of malicious prosecution. See Kelly v. Curtis, 21 F.3d
1544, 1556 (11th Cir. 1994).
“Probable cause to arrest exists where the facts and circumstances within the
collective knowledge of the law enforcement officials, of which they had
reasonably trustworthy information, are sufficient to cause a person of reasonable
caution to believe that an offense has been or is being committed.” Wilson v.
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Attaway, 757 F.2d 1227, 1235 (11th Cir. 1985) (internal citation and quotation
marks omitted). “Probable cause issues are to be decided on an objective basis by
courts without regard to the subjective beliefs of law enforcement officers,
whatever those beliefs may have been.” Craig v. Singletary, 127 F.3d 1030, 1042
(11th Cir. 1997). “No officer has a duty to prove every element of a crime before
making an arrest.” Jordan v. Mosley, 487 F.3d 1350, 1355 (11th Cir. 2007).
The Pierces have adequately alleged the elements of a malicious prosecution
claim. They have asserted that they were arrested under an arrest warrant, that the
charges were ultimately administratively discharged, and that they suffered
damages as a result. Taking their allegations as true, we cannot conclude at this
stage of the proceedings that Detective Brashears had probable cause based on the
information available to him. According to allegations, Detective Brashears
himself removed the vehicle from the stolen vehicle list in either the Georgia
Crime Information Center’s records, or the National Crime Information Center’s
records, or both. The amended complaint also states that Detective Brashears
informed the Pierces that the police had “made a mistake” in releasing the vehicle
and that there had been a “clerical error.” See Am. Compl., D.E. 14 ¶ 25.
The Pierces further alleged that while meeting with Detective Brashears,
they showed him all of their paperwork and “expressly advised” him of the course
of events leading to the release of the vehicle. See id. ¶ 27. Additionally, the
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Pierces asserted that Detective Brashears perjured himself by making
misrepresentations and omissions in the arrest warrant affidavits. Id. ¶ 35, 36.
According to the amended complaint, Detective Brashears knew that, inter alia,
the Pierces had not removed the vehicle unlawfully, that the documents submitted
by the Pierces attesting to the valid purchase of the vehicle at the auction were not
fraudulent, and that Mrs. Pierce had not provided fraudulent information to the
police department. See id. ¶ 35. Likewise, according to the amended complaint,
Detective Brashears intentionally and wrongfully failed to disclose, in the
application for a warrant, his (or the Police Department’s) responsibility for the
clerical error releasing the hold on the vehicle and the numerous actions the Pierces
allegedly took to verify the status of the vehicle. See id. ¶ 36.
Moreover, given these facts as alleged—that Detective Brashears himself
had removed the vehicle from the stolen vehicle registry and that he was fully
apprised of the Pierces’ paperwork and what had transpired—the complaint
sufficiently pleads that Detective Brashears acted with malice in seeking the arrest
warrants for the Pierces.
B
Detective Brashears argues that, even if he did not have probable cause, he is
entitled to qualified immunity because he had “arguable” probable cause and did
not violate clearly established law. “Qualified immunity offers complete protection
8 Case: 17-10815 Date Filed: 11/21/2017 Page: 9 of 16
for government officials sued in their individual capacities if their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Kingsland v. City of Miami, 382 F.3d 1220, 1231
(11th Cir. 2004). “Plainly, an arrest without probable cause violates the right to be
free from an unreasonable search under the Fourth Amendment.” Id. at 1232.
Moreover, “falsifying facts to establish probable cause is patently unconstitutional
and has been so long before” the Pierces’ arrest. Id. Viewing the facts in the light
most favorable to the Pierces, they have sufficiently alleged a violation of their
clearly established Fourth Amendment rights.
“Nevertheless, officers who make an arrest without probable cause are
entitled to qualified immunity if there was arguable probable cause for the arrest.”
Id. “Arguable probable cause exists when an officer reasonably could have
believed that probable cause existed, in light of the information the officer
possessed.” Durruthy v. Pastor, 351 F.3d 1080, 1089 (11th Cir. 2003) (internal
quotation marks omitted). “[W]hat counts for qualified immunity purposes relating
to probable cause to arrest is the information known to the defendant officers . . . at
the time of their conduct, not the facts known to the plaintiff then or those known
to a court later.” Jones v. Cannon, 174 F.3d 1271, 1283 n.4 (11th Cir. 1999)).
Taking the facts alleged in the Pierces’ complaint as true, however, we
cannot say at this stage of the proceedings that Detective Brashears had even
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arguable probable cause for the Pierces’ arrest. The facts alleged by the Pierces
support a conclusion that the arrest affidavit included recklessly or deliberately
false statements that are material to a finding of arguable probable cause. “Without
further factfinding, it is impracticable to conclude that arguable probable cause
existed for [the Pierces’] arrest when it is unclear how much of the proffered
evidence tending to support a finding of arguable probable cause was
manufactured or misrepresented.” Kingsland, 382 F.3d at 1232. Accordingly, the
Pierces’ claim for malicious prosecution against Detective Brashears may proceed.
Because the district court’s dismissal of the Pierces’ claims for civil
conspiracy and for attorney’s fees and damages was based upon its dismissal of all
claims against Detective Brashears, we remand for the district court to address
those claims in the first instance.
III
We review the denial of a motion for leave to amend the complaint on the
ground of futility de novo. See City of Miami v. Wells Fargo & Co., 801 F.3d 1258,
1265 (11th Cir. 2015). A proposed amendment is futile when the complaint as
amended would not survive a Rule 12(b)(6) motion to dismiss. See Burger King
Corp. v. Weaver, 169 F.3d 1310, 1320 (11th Cir. 1999).
10 Case: 17-10815 Date Filed: 11/21/2017 Page: 11 of 16
The Pierces argue that the district court improperly denied their motion for
leave to amend to include a state law claim for conversion. We agree.
Georgia codified the common-law action of conversion at O.C.G.A. § 51-
10-1. See Grant v. Newsome, 411 S.E.2d 796, 797 (Ga. Ct. App. 1991); Carter v.
Butts Cty., Ga., 821 F.3d 1310, 1324 (11th Cir. 2016). This statute “authorizes the
recovery of damages where a government official, without lawful authority, has
temporarily deprived an individual of his or her property.” Grant, 411 S.E.2d at
798; Carter, 821 F.3d at 1324. Conversion consists of “an unauthorized
assumption and exercise of the right of ownership over personal property
belonging to another, in hostility to his rights; an act of dominion over the personal
property of another inconsistent with his rights; or an unauthorized appropriation.”
Maryland Cas. Ins. Co. v. Welchel, 356 S.E.2d 877, 880 (Ga. 1987).
In stating a claim for conversion under Georgia law, a plaintiff must
normally allege: “(1) title to the property or the right of possession, (2) actual
possession in the other party, (3) demand for return of the property, and (4) refusal
by the other party to return the property.” City of Atlanta v. Hotels.com, L.P., 775
S.E.2d 276, 279 (Ga. Ct. App. 2015). Georgia courts have recognized, however,
that “demand and refusal are not required where a person comes into possession of
the property unlawfully.” Carter, 821 F.3d at 1324 (citing Williams v. Nat’l Auto
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Sales, Inc., 651 S.E.2d 194, 197 (Ga. Ct. App. 2007)). Additionally, “it is not
necessary that the defendant assert any right of ownership over the property” or
that “the defendant appl[y] it to his own use.” Welchel, 356 S.E.2d at 261. “It is in
law a conversion whether it be for his own or any other’s use…[and] it is sufficient
if the defendant wrongfully assumes dominion over the property inconsistent with
the owner’s right.” Id.
The district court determined that the Pierces had not made out a prima facie
case for conversion and that allowing them to add a claim for conversion would be
futile. Specifically, it determined that “no Defendant to the current lawsuit is in
possession of the vehicle”4 and that the Pierces, by their own admission, did not
demand return of the vehicle after their release from custody and that no one ever
refused to return the vehicle to them. 5
In our view, the district court applied too narrow a view of possession. The
defendants make much of the allegation in the amended complaint that “Plaintiffs
then surrendered possession of the vehicle to the Clayton County PD,” D.E. 14 ¶
4 To the extent that the district court read Georgia law as requiring a defendant to still be in possession of the property at the time of the complaint or lawsuit, it erred. See O.C.G.A. § 51- 10-1 (“The owner of personalty is entitled to its possession. Any deprivation of such possession is a tort for which an action lies.”) (emphasis added); Romano v. Ga. Dept. of Corrections, 693 S.E.2d 521, 524 (Ga. Ct. App. 2010) (“OCGA § 51-10-1 authorizes recovery of damages when a government official, without lawful authority, deprives an individual of his or her property on even a temporary basis.”) (emphasis added). 5 Although unclear in their original motion, the Pierces clarify on appeal that they intended to assert a claim of conversion only against Detective Brashears.
12 Case: 17-10815 Date Filed: 11/21/2017 Page: 13 of 16
29 (emphasis added), arguing that this proves that the Department took possession
of the vehicle, as opposed to Detective Brashears, and that the vehicle was given
willingly, not taken illegally.
The defendants ignore, however, the allegation that it was Detective
Brashears who effected the removal of the vehicle, purporting to act on behalf of
and under the authority of the Clayton County Police Department to do so. If it is
ultimately proven that Detective Brashears had no legal authority to effect that
repossession, as the Pierces have adequately pled in their amended complaint, then
the fact that he did not physically repossess the vehicle himself, but instead had the
Police Department repossess it under his authority and direction, does not shield
him from liability. Detective Brashears cannot lawfully do through the Police
Department what he cannot lawfully do as a member of the Department (i.e., if
Detective Brashears has no lawful authority to remove the vehicle, then he cannot
hide behind the Department’s removal of the vehicle on his command, which itself
presumes Detective Brashears’ authority to do so).
The defendants also ignore certain paragraphs of the amended complaint,
which include a statement by Mrs. Pierce that “if ya’ll tell me to turn it over, I’ll
turn it over,” and a statement by Detective Brashears saying “Good luck recovering
any money from us.” Id. at ¶ 26, 28. In demanding that the Pierces turn the vehicle
over to him, Detective Brashears had the weight, authority, and legitimacy of law
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enforcement on his side, and the Pierces were not required to physically resist
turning the vehicle over to him. It is enough that they protested Brashears’ removal
of the vehicle and attempted to prove their lawful ownership of the vehicle, see id.
at ¶ 26, 27, and their “surrendering” the vehicle to the Clayton County Police
Department does not foreclose their claim for conversion.
The district court also mistakenly applied the elements of conversion
required when a defendant comes into possession of property lawfully (a demand
by the plaintiff for return of the property, and a refusal to do so by defendant)
without considering the requirements where the taking of the property is unlawful.
See Williams, 651 S.E.2d at 196-97. The Pierces have pled facts sufficient for a
finding that Detective Brashears had no legal authority to dispossess them of their
vehicle (e.g., that Detective Brashears knew the Pierces had a legal right to possess
the vehicle, that he removed the vehicle from the stolen vehicle registry himself,
that he did not have probable cause to arrest the Pierces, etc.).
The defendants nevertheless argue that in order to satisfy the elements of
conversion which apply when a defendant comes into possession of property
unlawfully, a plaintiff must allege that the defendant “dispose[d] of the property
without authority and retain[ed] the proceeds.” Williams, 651 S.E.2d at 197. The
defendants rely on Williams, but the court in Williams was giving but one example
(which applied in that particular case) as to why ‘demand and refusal’ is not
14 Case: 17-10815 Date Filed: 11/21/2017 Page: 15 of 16
required when a defendant comes into possession of property unlawfully. See id.
The court did not in any way require these factors for all such situations (“a
conversion may also be proved by showing…”), nor did the court hold that its two
examples were the only ways to prove conversion (“[t]here are at least two
avenues available to prove conversion”) (emphases added). Id. at 196, 197.
Moreover, the requirement urged by the defendants would directly conflict with
the principle established by the Georgia Supreme Court that “[i]t is unnecessary to
show that the defendant applied [the property] to his own use.” See Welchel, 356
S.E.2d at 880. And it would lead to the nonsensical result that a defendant would
be liable for conversion if he sold the property which he had unlawfully acquired,
yet would not be liable as long as he kept the property for himself. Williams neither
requires nor suggests such an interpretation.
Because the Pierces have pled facts sufficient to maintain a claim for
conversion against Detective Brashears, the district court improperly denied their
motion for leave to amend their complaint.
The Pierces also argue that the district court erred in determining that
allowing them to bring a Monell claim for deliberate indifference with respect to
the hiring of Detective Kidd would be futile. “Monell imposes liability on
municipalities for deprivations of constitutional rights visited pursuant to
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municipal policy, whether that policy is officially promulgated or authorized by
custom. The official policy or custom must be the moving force of the
constitutional violation’ in order to establish liability of a government body under
§ 1983.” Gilmere v. City of Atlanta, Ga., 737 F.2d 894, 901 (11th Cir. 1984)
(internal quotation marks and citation omitted). But the only claim remaining
against Officer Kidd is a state law claim for intentional infliction of emotional
distress. Because the Pierces have failed to adequately allege an underlying
constitutional violation with respect to Officer Kidd, their Monell claim against
Clayton County and Police Chief Michael Register fails.
IV
The district court did not err in denying the Pierces’ motion for leave to add
a Monell claim for intentional infliction of emotional distress, but it erred in
denying leave to amend regarding the Pierces’ conversion claim. In addition, the
Pierces have adequately alleged a § 1983 claim for malicious prosecution, and
Detective Brashears is not entitled to qualified immunity at this early stage of the
case. Accordingly, we affirm in part and reverse the district court’s dismissal of the
Pierces’ claim for malicious prosecution against Detective Brashears and its denial
of leave to amend to add a state law claim for conversion, and remand for further
proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.